IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THE FIRST DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.530 OF 1999 Between: Reddigatla Seshaiah and another. - - - Appellants/ Appellants/ Defendants. AND Bhaskaruni Srinivasa Raju. - - - Respondent/ Respondent/ Plaintiff. The Court made the following: HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL NO.530 OF 1999 JUDGMENT: This appeal is filed by the defendants aggrieved by the concurrent judgment and decree of both the courts below decreeing the suit of the respondent-plaintiff for recovery of possession of the suit house plot admeasuring 140 sq. yards comprised in Survey No.950 known as Malugadda situated at Motakondur village of Yadagirigutta Mandal, Nalgonda District. 2. Facts in brief are : Survey No.950 with which we are concerned is a Government Land adjacent to the village of Motakondur. In the year 1966 the Government had proposed to establish a Veternary Hospital at Motakondur village by raising funds from the public and at the request of the Sarpanch, the aforesaid land was proposed to be sold. The said land was divided into number of plots and one such plot bearing No.64 admeasuring 320 sq. yards was allotted to the respondent-plaintiff at the then prevailing market value of Rs.65/-. Plaintiff claims that he has paid the said amount evidenced by a receipt Ex.A-1 dated 19-09-1966. He further claims that he has obtained permission from the Grama Panchayat under Ex.A-2 dated 16-03-1984 and constructed basement for 5 rooms but could construct only 3 rooms over it and for want of funds could not take up the further construction. He alleged that in June, 1985, the defendants illegally and unauthorisedly occupied the remaining two basements admeasuring 140 sq. yards which is a suit schedule property and did not vacate in spite of several demands. It is alleged that the defendant Nos.1 and 2 who are appellants herein erected a hut for the purpose of their party office and as such plaintiff filed the present suit for recovery of possession. 3. The appellants-defendants resisted the suit by contending that the Survey No.950 is admittedly a Government land and the defendants like all other villagers occupied the suit land for the purpose of constructing party office. He also alleged that plaintiff himself having several properties not eligible to be allotted any plot of land. Defendants allege that they have also obtained permission and approved plan from the Gram panchayat through Sarpanch on 28-12- 1986 marked as Exs.B-1 and B-2 and constructed two rooms for the party office. They therefore contend that plaintiff has no right to file a suit for recovery of possession of the said land, which admittedly belongs to the Government, and the suit is barred by limitation. 4. Trial Court framed an issue as to whether the plaintiff is entitled to recovery of possession by ejecting the defendants? The plaintiff himself examined as PW.1 and the then Sarpanch and another were examined as PWs.2 and 3 respectively and marked Exs.A-1 to A-5. Defendant No.2 himself was examined as DW.1 besides two other witnesses DWs.2 and 3 and got marked Exs.B-1 and B-2 referred above. 5. On consideration of the evidence on record, the trial Court came to the conclusion that the plaintiff has duly proved that he was the allottee of the plot in question and that he had paid the consideration fixed by the Government under Ex.A-1 and that he was granted permission to construct the house under Ex.A-2. He also filed and got marked ownership certificate Ex.A-3 dated 05-05-1987 issued by the then Sarpanch who was examined as PW.2 and in view of the lawful possession of the plot including the suit schedule property by the plaintiff was established, whereas the defendants claim only as occupiers and have relied upon Exs.B-1 and B-2. The permission allegedly granted by the Gram Panchayat for constructing office was rejected by the trial Court on the ground that the said document does not contain any signature of the issuing authority and the said permission was not confronted to PW.2 the then Sarpanch during cross-examination. The trial Court therefore accepted the case of the plaintiff that though the land in Survey number belongs to the Government, plaintiff being in lawful and authorized possession thereof is entitled to seek the decree of possession against the defendants who have no better title than the plaintiff and the wrongful dispossession of the plaintiff by the defendants being illegal, the suit of the plaintiff is decreed. 6. Defendants filed Appeal before the lower appellate Court and the same was dismissed with the concurrent findings of the trial Court by specifically declaring that the said decree for possession granted to the plaintiff would not bind the Government, which has paramount title. Hence, the second appeal by Defendant Nos.1 and 2. 7. This Court admitted the second appeal on 14-07-1999 on the following substantial question of law : Whether the plaintiff having not made out title to the land which belongs to the Government can have a decree for eviction of the appellants-defendants? A further question was also framed as to the principles of appreciation of evidence as to whether the defendants dispossessed the plaintiff? 8. Heard both the learned counsel appearing for the parties. 9. Learned counsel for the appellants very strangely contended that when the plaintiff admittedly has no title with respect to the Government land, merely on the basis of alleged allotment evidenced by Ex.A-1 receipt issued by the Sarpanch, plaintiff cannot claim decree for possession. Learned counsel also stated that Exs.B-1 and B-2, permissions granted to the defendants by the Gram panchayat was not appreciated by both the Courts and submits that plaintiff as well as the defendants are occupiers of Government land and when the Government is not objecting to the occupation by the defendants, the suit filed by the plaintiff ought not to have been decreed by both the Courts below. He also submits that plaintiff admittedly does not have any patta or certificate in his favour and as such cannot seek recovery of possession without seeking declaration of title and without impleading the Government as a party. 10. In the light of the substantial questions of law as framed and the contentions of the appellants, the findings of both the courts below clearly show that except claiming occupation, the defendants did not rely upon any documents to establish their authorization or lawful entry over the suit schedule property. The only reliance placed by the defendants is on Exs.B-1 and B-2, which is the permission, issued by the Gram Panchayat on 28-12-1986 together with approved plan. The said documents however were not accepted by both the Courts below for the reasons as recorded by the lower appellate Court which are reproduced herein : 1. Though Ex.B-1 is dated 18-12-1986 according to the defendants they obtained the permission in 1986. PW.2 was the Sarpanch during that period but he was not confronted with the aforesaid documents while being cross-examined. 2. Ex.B-2 document only contains seal of the Grama panchayat and does not contain the signatures. 3. DW.1 who was the later Sarpanch since 1986 and who is also Defendant No.2 was unable to explain as to who has signed the said documents Exs.B-1 and B-2 and hence no relevance is placed on the said two documents. 11. However, irrespective of proof or otherwise Exs.B-1 and B-2, on the pleadings of the appellants-defendants themselves they are not claiming any authorized possession of the suit property but merely claiming that they have occupied and later obtained permission to construct office. The aforesaid plea of the appellants-defendants is contrary to the specific case of the respondent-plaintiff that he was allotted the plot bearing No.64 on payment of market value, which he has paid under Ex.A-1 and on which he was granted permission Ex.A- 2 dated 16-03-1984 and his ownership was certified by the Sarpanch under Ex.A-3 dated 05-05-1987; is amply supported and corroborated by evidence. From the evidences of PWs.2 and 3 it is clear that the possession of the plaintiff was authorized. The nature of claim by the respondent-plaintiff therefore is an enforceable right under possessory title. It is well settled that the plaintiff who is in possession of the property has a good title against all except a true owner and appellants-defendants who have merely trespassed and grabbed the part of the plaintiff’s land cannot defeat claim for possession by the plaintiff. This aspect was duly considered by the Hon’ble Supreme Court in Somnath Berman Vs. Dr. S.P. Raju and another[1] where it is held that : “Possessory title is a good title as against everybody other than the lawful owner. In Ismail Ariff Vs. Mahomed Ghouse (1893) 20 Ind App 99 (PC), The Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the possession of the plaintiff was a sufficient evidence of title as owner against the defendant. 10. In Narayana Row Vs. Dharmachar, (1903) ILR 26 Mad 514 a bench of the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession is, under the Indian, as under the English law, good title against all but the true owner. Section 9 of the Specific Relief Act is in no way inconsistent with the position that as against a wrongdoer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrongdoer cannot successfully resist the suit by showing that the title and right to possession are in a third person. The same view was taken by the Bombay High Court in Krishnarao Yashwant Vs. Vasudev Appaji Ghotikar, (1884) ILR 8 Bom 371. That was also the view taken by the Allahabad High Court in Umrao Singh Vs. Ramji Das, ILR 36 All 51 = (AIR 1914 All 54 (2)). Wali Ahmed Khan Vs. Ajudhia Kundu (1891) ILR 13 All 537. In subodh Gopal Bose Vs. Province of Bihar, AIR 1950 Pat 222 the Patna High Court adhered to the view taken by the Madras, Bombay and Allahabad High Courts. The contrary view taken by the Calcutta High Court in Debi Churn Boldo Vs. Issur Chunder Manjee, (1883) ILR 9 Cal 39; Ertaza Hossein Vs. Bany Mistry, (1883) ILR 9 Cal 130, Purmeshur Chowdary Vs. Birjio Lall Chowdary, (1890) ILR 17 Cal 256 and Nisa Chand Gaita Vs. Kanchiram Bagani, (1899) ILR 26 Cal 579, in our opinion does not lay down the law correctly.” 12. Therefore, I am unable to accept the contentions of the learned counsel for the appellants and both the substantial questions of law as framed deserve to be answered against the appellants. Appeal therefore is liable to be dismissed. This however does not preclude the appellants from approaching the Government for seeking regular allotment of any other land in their favour if it is permissible under the policies and schemes of the Government. Accordingly, appeal is dismissed with costs. ________________________ VILAS V. AFZULPURKAR, J. October, 01, 2010. DSH [1] AIR 1970 S.C. 846