THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.417 OF 2005 JUDGMENT:- The defendants in O.S.No.43 of 1999 on the file of the court of Senior Civil Judge, Kadapa are the appellants herein. The suit one was filed for declaration of title of the plaintiffs and also for recovery of possession of the property and mesne profits. The subject matter of the suit is about Ac.0.16.38 cents out of 53 cents in the total extent of 83 cents in Sy.No.570/3 in Chemmumiahpet village of Kadapa town. The allegations in the plaint goes to show that the land in Sy.No.570/3 along with other properties to an extent of Ac.2.43 cents was purchased by the plaintiffs 1 and 2 and one A.Naraiah under a registered sale deed dated 14-12-1981 and Naraiah died in 1986 and his interest devolved upon defendant Nos.3 to 5. Since the extent of the property was more, in order to prevent the trespassers, one cent of land was provided for watchman with a Kottam and at the instance of one Dr.Lakshmi Narayana Reddy, the first defendant was permitted to reside in that property without any rent. The defendant Nos.1 and 2 continued to stay in the said extent with permissive possession. As the defendant Nos.1 and 2 are not properly looking after the property, the plaintiffs demanded them to vacate the property and 2nd defendant made an application on 10-03-1986 to the District Collector, Kadapa for assignment of Ac.0.10 cents of land in Sy.No.570/3 alleging that she was in possession since more than 15 years. The M.R.O and Surveyor inspected the land and found only one kottam in one cent without any fencing or compound wall and it was found to be a patta land and the assignment was rejected. The inspection was done on 31-05-1986. Thereupon, the first defendant filed a suit O.S.No.463/1986 against the plaintiffs and others for declaration of title and permanent injunction claiming that there is a kottam in 4 Ankanams of site with fencing and he has put up kottam of about Ac.010 cents of land. The said suit was dismissed on 04-06-1981. Thereafter, some criminal complaint was filed by the husband of the first plaintiff and the private complaint was instituted. Thereafter, the plaintiffs filed LGOP No.1 of 1994 and it was dismissed on 30-11-1998 finding that civil court has to decide the dispute with regard to title. The defendants without any manner of right being in permissive possession into the land to an extent of one cent have occupied the suit schedule property and put up some structures. Therefore, the suit is filed for recovery of possession of the property. The defendants 1 and 2 filed a written statement disputing the claim of the plaintiffs about the ownership of the land and the purchase under the sale deed dated 14-12-1981. It was also denied that the 1st defendant was in permissive possession of one cent with a thatched house as a watchman. The plaintiffs have no title or interest in the suit schedule property. The defendants are in possession and enjoyment of the property since more than 26 years having put up two tiled houses and compound wall and another kottam put up by late N.Lakshmaiah who is the maternal uncle of the defendants. The defendants have perfected their title by adverse possession. The report of the M.R.O and consequential proceedings are not valid. It was admitted that O.S.No.463 of 1986 was dismissed. The suit of the plaintiffs is not maintainable in view of the dismissal of LGOP No.1 of 1994. The plaint plan is not correct. The 1st defendant is also conveyed an extent of Ac.0.05 cents to the 6th defendant who was subsequently added as a party. The defendant No.6 who is no other than the son of the defendant Nos.1 and 2 supported the allegations in the written statement of defendant Nos.1 and 2 and also claimed gift of Ac.0.05 cents in his favour. On the basis of the above pleadings, the following issues and additional issues were framed for trial 1. Whether the vendors of the plaintiffs are the lawful owners of the suit schedule property having saleable interest? 2. Whether the plaintiffs are entitled for declaration of title to the suit schedule property and for possession as prayed for? 3. Whether the plaintiffs are entitled for the mesne profits during the pendency of the suit as prayed for? 4. To what relief the plaintiffs are entitled? Additional issues:- 1. Whether the plaintiffs have no title to the plaint schedule property to an extent of Ac.0.16.38 cents out of 0.53 cents out of total extent 0.83 cents in S.No.570/3 situated in Chemmumeahpet village shown as ABCD in the plaint plan and the structures in the said land? 2. Whether the defendants are in possession and enjoyment of the above said land and structures i.e., two tiled havelies and another kottam along with the compound wall and other kottam for the last 26 years? 3. Whether the plan filed along with the plaint by the plaintiff was not correctly drawn? 4. Whether the father of the 6th defendant gifted Ac.0.05 cents site in Sy.No.570/3 on 30-04-1999 and whether D-6 has been in possession and enjoyment of the suit site and house and whether D-6 is the absolute owner of the suit site of Ac.0.05 cents? On behalf of the plaintiffs PWs.1 to 3 were examined and marked Exs.A-1 to A-28. On behalf of the defendants DWs.1 and 2 are examined and marked Exs.B-1 to B-30. After considering the evidence on record, the learned Senior Civil Judge decreed the suit of the plaintiffs and aggrieved by the said judgment the present appeal is filed by defendant Nos.1, 2 and 6. Now the points that arise for consideration are:- 1. Whether the plaintiffs are the owners of the property and entitled for declaration and recovery of possession of the property? 2. Whether the claim of the appellants that they have perfected their title by adverse possession is true? 3. Whether the judgment and decree passed by the Senior Civil Judge is legal and sustainable? POINTS:- In this case, the suit schedule property is admittedly in Sy.No.570/3. The plaintiffs’ claim that the suit schedule property was purchased under a registered sale deed dated 14-12-1981 which is marked as Ex.A-8 and the sale deed (Ex.A-8) shows that 53 cents of land was purchased. The total extent of the property in Sy.No.570/3 is said be 83 cents and remaining 30 cents said to belong to one Devaki Devi who is said to have sold under a registered sale deed dated 13-03-1979 under Ex.A-5 to one Y.Narayana Reddy and others. Therefore, the total extent of the property in Sy.No.570/3 which is 83 cents is owned by the plaintiffs, defendant Nos.3 to 5 whereas the other 30 cents was owned by Devaki Devi. In fact, these sale transactions are continuously set up by the plaintiffs and the report of M.R.O- Ex.A-28 and the Surveyor’s report- Ex.A-12 clearly goes to show that the land in Sy.No.570/3 is a patta land and it was owned to an extent of Ac.0.53 cents by the plaintiffs. In fact, that was the report sent by the MRO under Ex.A-9 after spot inspection by the revenue officials. It was also found that there is no Government land and it is neither a poramboke nor a Gramakantam, which can be assigned consequent on the application of the second defendant said to have been made in the year 1986. Though in the earlier suit O.S.No.463 of 1986 which was filed by the 1st defendant for declaration of title and injunction relates to 4 Ankanams in which a house is said to have been constructed, the allegations in the plaint as can be seen from Ex.A-3 shows that the suit schedule property with compound wall and kottam was approximately Ac.0.10 cents of land in Sy.No.570/3 and the 1st defendant is said to be in possession since more than 15 years. In the above suit, the source of title was not put up and it was repeated that Sy.No.570/3 is a Gramakantam site and the occupation claimed therein is only Ac.0.10 cents. The above suit was filed on 26-05-1986 even before the inspection by the revenue authorities and the report to the Collector. It is also to be mentioned that it is the 2nd defendant that is said to have given application to the revenue authorities for issuance of patta claiming possession and enjoyment but she was not a plaintiff in O.S.No.463 of 1986 and it was only filed by the 1st defendant. Therefore, it is quite clear that the schedule shows only 4 Ankanams which evidently is less than one cent whereas the assignment claimed by the 2nd defendant for Ac.0.10 cents and she did not join as a party in O.S.No.463 of 1986. It is not in dispute that the source of title claimed in O.S.No.463 of 1986 is only possession for 15 years and treating the property as a Gramakantam. Evidently, the said suit was dismissed on 04-06-1987 at the stage of trial when the plaintiffs have filed written statement and issues were framed and independent title was set up by the plaintiffs herein. It is also not in dispute subsequently LGC 1 of 1994 was originally filed on 18-02-1991 and it was taken on file by the Tribunal after the report of the MRO. The subject matter of LGC was about Ac.0.10 cents. It is also to be mentioned that after filing of the said LGC, the M.R.O has submitted a report Ex.A-1 along with the plan about the rights in the property and it clearly shows that the land in Sy.No.570/3 relating to L.G.C belongs to the plaintiffs herein. The appellants herein have filed a counter contending that the 1st respondent’s maternal uncle by name Nasa Lakshmaiah was the owner of the land in possession and the said Lakshmaiah and another purchased the same along with some other land from Devaki Devi and others under an agreement of sale dated 01- 06-1974 and the said Lakshmaiah executed a will dated 16-08-1975 bequeathing the property to the 1st defendant. Therefore, in the LGC an independent title was set pup by the appellants claiming that the suit schedule property is the part of the property owned by Devaki Devi and it was sold to Lakshmaiah and another under an agreement of sale. But no document was filed before the court and as already found Devaki Devi sold her 30 cents of land to Narayana Reddy and others under Ex.A-5 in 1979 and consequently the source of title claimed by the appellants is a falsity. This clearly goes to show that the appellants have given a go-bye to the earlier theory of land belonging to the Government and being in possession and enjoyment of the property since long time and set up a plea of title through Lakshmaiah. Therefore, this clearly goes to show that the appellants herein have taken inconsistent stands and the essential requisite of perfecting title by adverse possession i.e., the animus of treating the property as their own to the knowledge of the original owner is absent. The question therefore rightly decided by the court below is that the defendants’ claim of succession to the property of Devaki Devi is a falsity. The above pleading clearly goes to show that they were enjoying the property as that of Devaki Devi and not the property belonging to the appellants and with a hostile intention to the rights of the plaintiffs. This is where the defence of the appellants has to fail. It is needless to say that the hostile intention should be clear and unequivocal to convey the same to the original owner of the property. When once the appellants are not treating by virtue of their pleading in the earlier L.G.C that the plaintiffs in the suit are the owners of the property and the appellants having failed to prove the title through Lakshmaih, they cannot deny the title of the plaintiffs which is proved by the sale deed and also repeated reports of the revenue authorities on this aspect. In fact, during the course of arguments also not of much effort was made to set up a title through Devaki Devi and that the property belongs to her. The strength of the contention of the learned counsel for the appellants is that on 10-03-1986 a letter was addressed by the 2nd defendant for assignment and the suit O.S.No.463 of 1986 was filed on 26-05-1986 and the present suit was filed on 30-04-1999 and therefore if the period of possession and enjoyment of the property is construed from 10-03-1986, the title by adverse possession is perfected and consequently the decree and judgment of the lower court are not valid. It was also contended that the plaintiffs have claimed that the period of prosecution of the proceedings before the Land Grabbing Court are to be excluded under Article 14 of the Limitation Act,1963 and that is not permissible as there was no permission and as such there is no break in the period of limitation to continue and the right of the appellants to acquire title by adverse possession. He relied on the following decisions. 1. Chatti Konati Rao and others Vs. Palle Venkata Subba Rao([1]) 2. Sheodhari Rai and others Vs. Suraj Prasad Singh and others([2]) 3. The State Bank of Travancore Vs. Arvindan Kunju Panicker and others([3]) 4. M.Durai Vs. Madhu and others([4]) 5. Trilochan Dandsena and another Vs. State of Orissa and others([5]) 6. Deena VsBharat Singh ([6]) 7. Moran Mar Basselios Catholicos and another Vs. Most Rev.Mar Poulose Athanasius & Others([7]) On the other hand, it is the contention of the counsel for the respondents that the claim of the appellants was not consistent and on the other hand the earlier suit was dismissed on 04-06-1987 by virtue of which decree the title of the plaintiff was not recognized and even if it is to be a dismissal for default, it still operates as res judicta. Even otherwise, if the period of limitation is to be construed, the dismissal of the suit O.S.No.463 of 1986 is on 04-06-1987 and the present suit was filed on 30-04-1989 well within 12 years. On the question of fact also, according to him, except possession of one cent of land, which was a permissive possession admitted by the plaintiffs, there is no proof of continuous possession and enjoyment of the land right from 1986. According to him, though in the earlier suit in the body of the plaint, possession was claimed for Ac.0.10 cents, in the schedule only 4 Ankanams attached shed was shown and the declaration was claimed for that and therefore that suit cannot be taken as one relating to assertion of title with regard to total extent of this present suit property. Even otherwise, the report of the M.R.O and the Surveyor clearly goes to show that on 31-05-1986 the so- called possession claimed in O.S.No.463 of 1986 is not true and possession was only there for one cent with a kottam. Therefore, it is contended by the counsel for the respondents that the suit O.S.No.463 of 1986 cannot be taken as a basis for starting point of limitation for possession of Ac.0.10 cents. It is also argued by the counsel for the respondents having claimed possession and declaration with regard to Ac.0.10 cents in the earlier suit O.S.No.436 of 1986, the defendants are not able to explain as to how they came into possession of Ac.0.16 cents and add involved in the present suit. It was only for the first time that after the disposal of L.G.C, the further occupation was effected, according to him, since the LGC also confines to possession of Ac.0.10 cents only. Therefore, prior to 1991 the appellants have not claimed possession and enjoyment of Ac.0.16 cents of land in Sy.No.570/3 and that too in the share of the property belongs to the plaintiffs herein. As rightly contended by the counsel for the respondents the suit O.S.No.463 of 1986 being a suit filed for declaration of title with regard to Ac.0.10 cents of land, even assuming to be so as pleaded by the counsel for the appellants, still when that suit was dismissed, it shall be deemed by virtue of that decree, the title of the plaintiffs has not been recognized. The decision relied on by the counsel for the appellants in Sheodam Singh Vs. Daryao Kunwar([8]) and other decisions in Ram Gobinda Daw and others Vs. Smt.H.Bhakta Bala Dassi([9]), State of Maharashtra and another Vs. M/s. National Construction Company, Bombay ([10]) may not have much help to the facts of this case. Evidently, in this case, the written statement was filed, the title of the appellants was denied and there is no reason as to why the appellants have not pursued that suit. The dismissal is also a decree operating and binding between the parties. No application was also filed to set aside the ex parte decree and to restore the suit. In this suit also, the reason for not prosecuting that suit is not explained nor pleaded. It is also to be further noted that in the earlier suit, title was sought to be declared on the basis of the long possession and enjoyment. Therefore, having allowed the said suit to be dismissed and the appellants cannot be allowed to canvas that prior to the date of dismissal of the suit also, he was in possession of the property. That suit was incidentally a suit for declaration of title and also for injunction. Therefore, I find sufficient force in the contention of the counsel for the respondents that the present plea of the appellants cannot be allowed about the adverse possession even prior to the dismissal of the suit and the court cannot look into it. If at all the possession, even assuming to be there, can only be permitted to be raised from 1987. After the dismissal of that suit also, if that view is taken, the suit is well within the time. As rightly contended by the counsel for the respondents, there is no evidence of possession and enjoyment continuously and adverse to the claim of the plaintiffs. It is needless to refer to several essential requirements of the adverse possession since mere possession, however long it might be, will not create a title by adverse possession. It should be long open, continuous and there cannot be any mathematical precession to fix 12 years period. In this connection, the decisions reported in Dr.K.I.Askari and another Vs. Nawab Mir Barkat Ali Khan([11]) and in Executive Officer, Sri Bramaramba Mallikarjuna Swamy Temple, Beeramguda, Patancheru Mandal Vs. Sai Krupa Homes and others ([12]) which are relied on by the counsel for the respondents have to be taken into consideration. Therefore, the material evidence on record shows that in 1983 permissive possession was said to be given for Ac.0.01 cent and in 1986 plea for assignment treating it as a Government land was rejected for Ac.0.10 cents and that revenue authorities also did not accept the possession of Ac.0.10 cents even by 31-05-1986 and the suit was dismissed. Therefore, by the date of filing of the earlier suit or even prior to that there is no possession of the appellants proved. Having claimed only Ac.0.10 cents for assignment the appellants could not show as to when they came into occupation of other Ac.0.06 cents and how their title was perfected. Therefore, for all the above reasons, it is to be held that it is not a case where the appellants can be permitted to set up a plea of title by adverse possession and the lower court has rightly rejected the same. Both sides have cited some authorities as to whether the provisions of Article 14 of the Limitation Act,1963 applies or not and in view of the fact that even if the application of Sec.14 of the Act is not there, the plea of adverse possession set up by the appellants having failed, I do not feel it is necessary to go into the necessities of the said contention. However, it was also sought to be contended by the counsel for the appellants, the dismissal of the L.G.C was also on merits and no liberty was given to file a fresh suit. This argument is of no avail since the Tribunal felt that as plea of adverse possession was set up, the title has to be decided by the civil Court only and no permission of the court is necessary for approaching the civil Court. When the said Tribunal found it has no jurisdiction, therefore, for all the above reasons, I find that there are no merits in this appeal and appeal is liable to be dismissed. The points are therefore answered. Accordingly, the Appeal Suit is dismissed. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 30-08-2011 TSNR [1] 2011 (1) ALT 46(SC) [2] AIR 1954 S.C. 758 [3] AIR 1971 S.C. 996 [4] 2007(6) SCJ 205 [5] AIR 1995 ORISSA 239 [6] AIR 2002 S.C. 2768 [7] AIR 1954 SC 526 [8] AIR 1966 S.C. 1332(1) [9] AIR 1971 S.C. 664 [10] AIR 1996 S.C. 2367(1) [11] 2010 (5) ALT 597 (D.B) [12] 2010 (6) ALT 699