IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.532 OF 1999 BETWEEN Manchala Odelu (died) and others. …APPELLANTS AND Byreddy Ammi Reddy. …RESPONDENT Counsel for the Appellants: MR. P.R. PRASAD For MR. P. BHASKAR Counsel for the Respondents: MR. N. V. SURYANARAYANA MURTHY For MR. B. NARAYANA REDDY The Court made the following: - JUDGMENT: This appeal is by the plaintiff, whose suit O.S.No.77 of 1993 was decreed by the trial Court but on appeal the said decree was reversed and the plaintiff’s suit was dismissed. Hence, this second appeal. 2. The parties are referred to as plaintiff and defendant for the sake of convenience. 3. The appellant/plaintiff filed O.S.No.77 of 1993 before the District Munsif, Huzurabad initially for perpetual injunction relating to Sy.No.439/A at Maliyal village, Jammikunta Mandal, Karimnagar District but the said suit was later amended to one for recovery of possession. The plaintiff also filed another suit O.S.No.78 of 1993 for recovery of possession of Sy.No.439/B admeasuring Ac.2.25 guntas situated in the same village. Thus, both the suits are similar suits for possession by the same plaintiff against the same defendant but for two different survey numbers viz. Sy.No.439/A, which is the subject matter of O.S.No.77 of 1993 and Sy.No.439/B, which is the subject matter of O.S.No.78 of 1993. These details are necessary to be mentioned because both the suits were decreed and on appeal both the decrees were reversed and to the extent of decree in O.S.No.77 of 1993, which was subject matter of A.S.No.8 of 1997 before the lower appellate Court, the present second appeal was filed whereas against the decree in O.S.No.78 of 1993, A.S.No.9 of 1997 was preferred by the defendant and the same was allowed against which the plaintiff had filed S.A.No.533 of 1999 and by order dated 04.12.2001 the said appeal was dismissed for non- compliance of the Court order within the time stipulated. Thus, the plaintiff’s claim, which is the subject matter of O.S.No.78 of 1999 ended in dismissal of the aforesaid second appeal, as above. However, since the subject matter of both the suits is different, this second appeal is not affected by the said decision and therefore, this has been dealt with and being disposed of on merits. 4. The facts, in brief, are as follows: (a) The original plaintiff No.1 was exclusive owner and occupier of the suit schedule land, as the ancestral property of the plaintiff and his name is found mutated as pattadar and possessor in the revenue records. It is alleged that the defendant, who is a stranger, demanded the plaintiff to alienate the said land and on plaintiff’s refusal, defendant developed enmity and attempted to dispossess the plaintiff whereupon a suit for injunction was initially filed and subsequently, when the plaintiff was forcibly and illegally dispossessed in the last week of December 1993, the present suit is converted into one for possession. (b) The defendant in his written statement denied that plaintiff is the owner and possessor and contended that at no point of time the plaintiff was in possession and as such, the question of dispossession does not arise. He also stated that without seeking declaration of title, the suit for possession is not maintainable. The defendant asserted that he is in continuous, uninterrupted and peaceful possession of the suit land from 1976 onwards for more than 12 years. He also pleaded that the plaintiff himself out of dire family necessities alienated the suit schedule land in 1976 for consideration of Rs.7,125/- at Rs.3,000/- per acre and received the entire consideration and executed a simple sale deed and put the defendant in possession. It is alleged that the defendant dug a bore well in Sy.No.439/B and developed the property. He also asserted that his name is recorded in ROR and rytu passbook is issued to him. 5. On the basis of the aforesaid pleadings, the Court below framed the following issues: 1. Whether the plaintiff is entitled for recovery of possession of the suit land specifically described in the suit schedule? 2. Whether the suit land is under valued and the Court fees paid is not sufficient as contended by the defendant? 3. To what relief? 6. Plaintiff No.2 examined herself as P.W.1 and two other witnesses as P.Ws.2 and 3 whereas defendant examined himself as D.W.1 and his witnesses as D.Ws.2 to 4. Plaintiff marked Ex.A1 – certified copy of pahani for the year 1991-92 and the land revenue receipt – Ex. A2 dated 04.07.1992, apart from the death certificate of original plaintiff No.1 – Ex.A3 dated 23.01.1996. The defendant filed and marked certified copies of pahanies from 1976-77 to 1991-92 as Exs.B1 to B16 and the notice and memo issued by the Mandal Revenue Officer – Exs.B17 and B18 and rytu passbook and land revenue receipts as Exs.B19 to B21. Two other documents Exs.B22 and B23 are not relevant and hence, not necessary to give details thereof. 7. The trial Court, on consideration of the evidence, found that the defendant’s case that he has purchased the suit schedule property from the original plaintiff under a simple sale deed of 1976 is not established. Even according to the defendant also he had given the said sale deed to the Patwari for the purpose of mutation in ROR proceedings and the defendant only produced a receipt Ex.B21 issued by the said Patwari dated 17.11.1978, the same was held to be not proved, and the rytu passbook Ex.B19 to support his claim of purchase, was found insufficient to draw such a conclusion in favour of the defendant. The trial Court also found that the revenue record consistently shows the names of the plaintiffs as pattadars and in some of the pahanies, the first defendant is shown as occupier. The trial Court eventually found that the plaintiff being the admitted owner and the defendant having failed to prove the alleged sale in his favour and not able to show continuous and uninterrupted possession for over 12 years, the case of the defendant was rejected and the suit was decreed. 8. On appeal, the lower appellate Court has reversed the decree. The lower appellate Court has noticed that there is no issue relating to adverse possession and that defendant’s possession is not consistently established for 12 continuous years. The lower appellate Court also felt that the revenue record marked as Exs.B1 to B16 having been admitted without any objection, the said documents can be looked into and presumption attached to the entries can be drawn. To the extent of defendant’s claim on the basis of an unregistered sale deed, the lower appellate Court observed that if the said sale transaction is true and proved, the defendant cannot plead adverse possession but in the absence of the said document being filed and proved, the defendant can take a defence of adverse possession and on finding that the plaintiff has failed to destroy the said evidence, the appeal was allowed and the judgment and the decree of the trial Court was set aside. 9. This appeal was admitted on 05.07.1999 and the following substantial questions of law were formulated: 1. Whether the possession under the agreement of sale would give base for perfection of title by adverse possession? 2. Whether the presumption under Section 114 of the Evidence Act can be invoked for inferring continuous possession, contrary to the revenue record? 10. Mr. P.R. Prasad, learned counsel for the appellant, has elaborately contended that the plaintiff being the admitted owner of the property and the defendant having failed to prove the transaction of sale, as pleaded by him, defendant cannot plead title or possession much less adverse possession. He relies upon the specific contention of the defendant that the original plaintiff was the admitted owner but he sold the property to the defendant in 1976 under an unregistered sale deed. He submits that firstly, Ex.B21 alleged receipt issued by the Patwari is not sufficient to hold that there was an unregistered sale deed in favour of the defendant and even otherwise Ex.B21 is not proved. Learned counsel, therefore, submitted that in the absence of any valid defence there is no reason why the plaintiff’s suit cannot be decreed and the lower appellate Court has completely misunderstood the factual and legal position and as such, the judgment and decree of the trial Court deserves to be restored. 11. Mr. N.V. Suryanaryana Murthy, learned senior counsel, appearing for the respondents, has made even elaborate submission that the plaintiff must succeed on the strength of his own case and not to rely upon the weakness of the defendant’s case. He submits that the defendant has been in possession over 17 years on the date of suit coupled with the fact that the plaintiff himself has not proved his title. He submits that while the revenue authorities were undertaking enquiry with respect to mutation, the present suit was filed to frustrate the said enquiry. He also submits that that no title passes merely on the basis of alleged admission of the defendant, particularly, when a plea as to admission must be taken as a whole. Learned senior counsel also submitted that the plaintiff has failed to prove as to at what point of time the defendant trespassed and dispossessed the plaintiff. He points out that the earliest entry in the revenue record is as early as in the year 1978 and there is a presumption attached to the revenue entries, which was rightly appreciated by the lower appellate Court. Lastly, the learned counsel submits that the questions of fact, particularly, in a suit for possession cannot be gone into by this Court under Section 100 of the Code of Civil Procedure, 1908 and cited decisions in support of his contentions, reference to which will be made at appropriate place. He also relied upon settled proposition that presumption can be forwards as well as backwards. 12. In order to appreciate the rival contentions, it would be appropriate to first notice the plaint and the written statement. (a) The plaintiff claims that the suit property is his ancestral property mutated in his name as pattadar and possessor whereas defendant is a complete stranger, who has neither any right, claim, interest nor title. It is also specifically alleged that when the defendant tried to interfere with, initially perpetual injunction was sought for, later the plaintiff was forcibly and illegally dispossessed in December 1993 and thereby the suit is amended as one for possession. A specific plea was also raised by claiming that the defendant dispossessed the plaintiff during the pendency of the previously instituted injunction suit and the defendant had no manner of right, title or claim. (b) The written statement filed by the defendant points out that the suit is filed on the basis of solitary pahani for the year 1991-92 and defendant makes his claim justifying the possession on the basis of the sale of the suit schedule property in his favour in the year 1976 by virtue of the unregistered simple sale deed. He also pleads that apart from the sale deed, the defendant is in possession for more than 12 years continuously. To the extent of amended relief it was stated that the cause of action is false and in the finding of the trial Court on the interim injunction application it was found that the plaintiff was out of possession and defendant was in possession on the date of suit also i.e. 01.03.1993 and as such, the question of dispossession of the plaintiff in December 1993, as alleged, does not arise. 13. The oral evidence of either of the parties is not very helpful in deciding the issue as the respective witnesses on either side support their respective case. The cross-examination of defendant is, however, relevant where he stated as follows: “…The Simple sale deeds are extracted on unstamped papers at the house of Venkat Swamy Malipatel at Malyal village. Abbidi Shiva Reddy and Byreddy Raji Reddy the attestors of the deeds are of my village Patharlapalli. I handed over the said sale deeds to the Patwari Venkata Swamy in the month of April 1978…It is not true to suggest that I illegally dispossessed the plaintiffs from the suit lands in the last week of December 1993…It is not true to suggest that I am a political leader of Telugu Desam Party and that I influenced the revenue authorities, the Mandal Revenue Officer and got my name falsely recorded as the possessor of the suit land during the pendency of the suit…” 14. It has to be noticed that the defendant himself is setting up a purchase from the plaintiff, which in other words amounts to defendant admitting the pre-existing title of the plaintiff. In a suit for possession based on title, when the defendant admits the title of the plaintiff, I am unable to see any validity in the contentions of the respondents that the plaintiff must prove his title and in the absence of proof of document of title or possession, the suit must fail. The fact that defendant set up purchase is by itself sufficient to establish the title of the plaintiff, as the same stands admitted by the defendant. Learned senior counsel places reliance on a judgment of the Supreme Court in AMBIKA PRASAD THAKUR v. RAM EKBAL RAI[1] for the proposition that title cannot pass merely on the basis of admission. On facts of that case, the plaintiffs therein had claimed title on the basis of occupation as well as alleged admission of the Maharaja accepting that plaintiffs were occupancy tenants. The Supreme Court held that the alleged admission was made in suspicious circumstances at the end of the trial of the case, when arguments had begun. Secondly, the said admission has weak evidentiary value. Further, the plaintiffs in the suit had not claimed tenancy rights either by express grant or by adverse possession and as such, title cannot pass merely on the basis of admission. I am unable to see how the aforesaid decision would assist the respondent/defendant when he is setting up title on the basis of unregistered sale deed from the plaintiff. Since the title is claimed through the plaintiff, the pre-existing title of the plaintiff stands admitted and in the event of the defendant failing to establish sale in his favour, the pre-existing title of the plaintiff remains. 15. On the facts of the present case, it is also evident that the alleged sale, even though by an unregistered deed, is not established as a fact as well, as the said document, admittedly, is not produced. On the contrary, the defendant merely relies upon Ex.B21, which is said to be a receipt issued by the Patwari confirming that he has received the unregistered sale deed from the defendant for the purpose of ROR proceedings. The said receipt even if having any evidentiary value, has not been proved, as nobody connected with the same is examined and the receipt by itself cannot spell out the alleged deed of sale. Under Section 54 of the Transfer of Property Act, the title would pass to the defendant only on execution and registration of sale, which is, admittedly, not the case of the defendant. The sale deed, which is unregistered, as pleaded by the defendant, even if produced, would not by itself enable the defendant to establish his title. I am, therefore, unable to see as to how Ex.B21 receipt can help the defendant to establish title, even if Ex.B21 is proved in accordance with law. The main defence set up by the defendant on the basis of the said unregistered sale deed, therefore, remained unestablished in any manner. 16. The question, therefore, would be whether the defendant can justify his possession over the suit schedule land against the true owner i.e. plaintiff. The aforesaid claim of the defendant is, primarily, on the basis of revenue records and entries found therein in favour of the defendant. The trial Court on analysis of evidence found that in several revenue records the pattadar’s name is shown as that of the plaintiffs and the defendant’s name do not appear continuously over the statutory period. Thus, as a fact, the defendant failed to establish his continuous possession. 17. Even otherwise and even assuming that the defendant has established his continuous possession for 12 years, one has to keep in mind the scheme under Articles 64 and 65 of the Limitation Act, 1963 wherein the suit for possession can be resisted by the defendant either on the basis of title or on the basis of uninterrupted and hostile possession over the statutory period. As rightly pointed by the trial Court, two primary difficulties arise for the defendant with regard to the above. Firstly, when he pleaded agreement of sale and delivery of possession through the plaintiff, the entry of the defendant into the suit land is in other words pleaded as an authorized entry under an unregistered sale deed. In order to succeed against the plaintiff, the defendant must establish his possession adverse to that of the plaintiff. It is settled that adverse possession must be Nec Vi, Nec Clam, Nec Precaria. Thus, the defendant must show animus to possess against the plaintiff by asserting his ownership and must also establish as to what point of time his entry, which was initially authorized became adverse to the plaintiff. There is no evidence on either of the aspects on the part of the defendant and as such, the plea of adverse possession as understood by the lower appellate Court and decided in favour of the defendant is absolutely erroneous. The lower appellate Court thinks that just because the appellant has not filed an unregistered sale deed, he can as well rely upon the adverse possession. 18. Secondly, it is well settled that if the defendant is in possession on the basis of a lease or an agreement, the said permissive possession must be shown to have become hostile and adverse to the knowledge of the real owner and there must be cogent and convincing evidence to establish the same. Mere possession for a long time does not result in converting permissive possession into adverse possession. (see THAKUR KISHAN SINGH (DEAD) v. ARVIND KUMAR [AIR 1995 SC 73]) 19. In another decision in ROOP SING (DEAD) v. RAM SINGH (DEAD)[2] the defence was that the defendant was in possession for 15-16 years and had ripened into adverse possession. The Supreme Court pointed out that the evidence established that the defendant was in possession as bataidar under an agreement and the pleading of the defendant that there was an agreement of sale in his favour having not been established on evidence, the Supreme Court noticed that the revenue record clearly establishes the plaintiff as the owner and the possession was handed over to the defendant for cultivation as bataidar. On such facts, therefore, the plea of adverse possession and retaining possession by operation of Section 53-A of the Transfer of Property Act was held inconsistent with each other and secondly, the plea of adverse possession was held not available to the defendant. 20. I am, therefore, unable to see any substance in the claim of the respondent as to how possession is perfected by adverse possession. It is noteworthy that, as already stated above, the very unregistered sale deed under which the defendant claims title, is not produced by the defendant and thereby even plea under Section 53-A of the Transfer of Property Act also would not be available to the defendant. In my view, therefore, the possession of the defendant, on the facts of the case, is only that of trespasser and he cannot, on any ground, resist the suit for possession filed by the plaintiff. The lower appellate Court has completely misdirected itself and has reversed the well-considered judgment of the trial Court on a complete erroneous appreciation of law and facts. The substantial questions of law, therefore, have to be answered in favour of the appellant and the appeal deserves to be allowed. The second appeal is accordingly allowed setting aside the judgment and decree of the lower appellate Court and that of the trial Court is restored. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J February , 2011 DSK [1] AIR 1966 SC 605 [2] AIR 2000 SC 1485