THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR AS NO. 171 OF 1994 Date of order: 19.8.2010 Between: Kabeer Khan …Appellant and Ayesha Bi and another ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.NO. 171 OF 1994 JUDGMENT: This appeal is filed by the first defendant against the judgment and decree dated 5.10.1993 passed by the Subordinate Judge, Mahaboobnagar in OS No. 80 of 1988. Plaintiff is the first respondent and defendant No.2 is the second respondent in this appeal. The parties are hereinafter referred to as they are arrayed in the suit. The plaintiff filed the aforesaid suit seeking a declaration that she is the owner of the suit plot admeasuring 197.5 sq. yards and for recovery of possession thereof and in the alternative, for partition of the entire extent of 387.5 sq. yards into two equal shares and for allotment of one such share to the plaintiff. The claim of the plaintiff was based upon a registered sale deed dated 6.6.1966 executed in her favour and mother of the defendants 1 and 2. The plaintiff and mother of the defendants 1 and 2 are own sisters and the property which was purchased under the aforesaid sale deed- Ex.A2 is being claimed as belonging to both the said joint owners and for their conveyance, it is alleged, they have divided the said property into two equal portions shown in green and red colours, whereas the green marked portion belongs to mother of the defendants and the red marked portion is the one for which declaration is claimed by the plaintiff as belonging to her. It is alleged that in the said red marked portion the plaintiff had constructed a small room and said to be residing therein. On the ground of alleged interference by the defendants, the plaintiff had earlier filed OS No. 235 of 1987 before the District Munsif’s Court, Mahaboobnagar and obtained an ex parte injunction order by alleging that she had obtained permission for construction of a house, but the defendants were obstructing the same. In the said suit, the defendants raised a plea of title and disputed the title of the plaintiff. Thereupon the present suit came to be filed for a declaration and in the alternative for partition. The first defendant filed a written statement asserting that his mother alone was the exclusive owner of the property and the name of the plaintiff was only included in the sale deed nominally. It is asserted that the mother of the defendants 1 and 2 alone paid the consideration and was in exclusive possession of the property. It is also alleged that the dispute between the plaintiff’s husband and the first defendant was settled among themselves wherein the plaintiff’s husband demanded Rs.8,000/- to sell benami title of his wife i.e., the plaintiff to the defendants and received Rs.100/- thereof and the balance amount was kept with a third party. It is also alleged that the defendants have perfected their title by adverse possession. It is also admitted by them that the plaintiff has dug a foundation and filled it with a shelter of the ex parte interim injunction order obtained in the earlier suit, but after the said interim injunction order was vacated, the present suit came to be filed. The trial Court framed the following issues and additional issues, (1) Whether the plaintiff is the owner of the suit site? (2) Whether the plaintiff perfected her title by adverse possession? (3) Whether the plaintiff is entitled for partition of the suit site? (4) Whether the plaintiff sold away her rights over the suit plot for Rs.8,000/- and received Rs.100/- in advance? (5) Whether the defendants perfected their title over the suit site by adverse possession? (6) Whether the suit is in time? (7) Whether this court has no jurisdiction to entertain the suit? (8) Whether the suit as such filed is not maintainable in law? (9) To what relief? ADDITONAL ISSUES: (1) Whether the plaintiff was dispossessed by the defendants during the pendency of the suit? (2) Whether the first defendant is in possession of the red marked portion of suit plot since five years prior to registration of sale deed along with his mother? (3) Whether the first defendant perfected his title over the red marked portion of suit plot by adverse possession? (4) Whether this Court has no pecuniary jurisdiction as the value of suit property mentioned in the plaint is more than the actual market value? After considering the evidence of PWs. 1 to 3 and Exs.A1 to A3 adduced on behalf of the plaintiff and D.Ws. 1 to 5 and Exs.B1 to B10 on behalf of the defendants, the trial Court came to the conclusion on issue No.1 and additional issue Nos. 2 and 3 that the plaintiff has established her title to the extent of half of the suit plot which is shown in red colour in suit map towards north, whereas the defendants are entitled to other half shown in green colour. The trial Court consequently held that the alleged settlement with husband of the plaintiff, as contended by the defendants, was not proved. The trial Court also negatived the plea of adverse possession set up by the defendants and consequently decreed the suit by declaring the plaintiff as owner of the suit plot marked in red colour in suit plan admeasuring 197.5 sq. yards. Aggrieved thereby, the present appeal is filed by the first defendant, as an indigent person. This appeal was dismissed against the second defendant in default vide orders passed by this Court on 25.9.2000. Heard Mr. Mohd. Ghulam Hussain, learned counsel appearing for the first defendant/appellant and Mr. K. Mahipath Rao, learned counsel appearing for the plaintiff/first respondent. The learned counsel for the first defendant has very strenuously contended that the findings of the trial Court with regard to title are clearly unsustainable, inasmuch as there is no evidence to show that the plaintiff contributed any consideration and even as per the trial Court, the plaintiff was absentee landlord and from the date of purchase the mother of the defendants alone remained in possession and as such the present suit was barred by limitation which was filed in 1988 after the statutory period elapsed and therefore the defendants ought to have been declared as having perfected their title by adverse possession. The learned counsel also states that the ex parte interim order obtained by the plaintiff in the earlier suit was vacated by the trial Court which itself establishes that the plaintiff was never in possession of the suit plot. Even alternatively, he submits that the trial Court could have passed a decree for partition, instead of declaration so that the suit schedule plot could have been equitably partitioned. The learned counsel for the plaintiff has merely supported the findings of the trial Court. The title under Ex.A2-sale deed admittedly stands in the name of the plaintiff and the mother of the defendants. It cannot be said that the said title is a nominal title so far as the plaintiff is concerned, inasmuch as the plaintiff was not standing in a fiduciary capacity nor she can be said to fall in any of the exceptions under sub-section (3) of Section 4 of the Benami Transactions (Prohibition) Act, 1988. On the face of it, therefore, I am unable to see any error in the findings of the trial Court on issue No.1 and additional issues 2 and 3 and it is difficult to accept the contention of the learned counsel for the first defendant that notwithstanding the title of the plaintiff appearing from the suit document, she cannot be declared as owner of the suit property even to the extent of half of the property. The recitals in Ex.A2-sale deed and other evidence on record clearly support the case of the plaintiff that she contributed half of the consideration for purchase of the property and registered document-Ex.A2 showing clear and apparent title of the plaintiff cannot be displaced by leading oral evidence and in fact such oral evidence is impermissible in view of Section 91 of the Evidence Act. The findings reached by the trial Court on the basis of the evidence on record, therefore, are neither perverse nor otherwise suffer from any infirmity. It is also found by the trial Court that the property was divided into two equal portions namely southern and northern portions and while the southern portion is shown in green colour as belonging to the defendants, the northern portion with one small room constructed therein shown in red colour belongs to the plaintiff and there is evidence on record to show that the plaintiff was in possession of the said portion before being dispossessed. In the earlier suit, an interim injunction was also granted in her favour and even, according to the defendants, she constructed a foundation and filled it. Even assuming that the contention of defendants that they are in exclusive possession of the property is true and sustainable, the said possession being in the capacity of joint owner enures to the benefit of other joint owner automatically. I do not find any substance in the claim of the defendants that they have perfected their title by adverse possession. It is well settled that adverse possession must be with reference to the true owner and the defendants, while claiming exclusive title to the entire property and without having acknowledged title of the plaintiff, cannot claim that their continuous possession has fructified into an adverse possession as against the plaintiff. The findings of the trial Court in that regard are, therefore, clearly sustainable and no interference in this appeal is called for. An additional ground also appears against the first defendant in view of the fact that the suit was decreed against both the defendants and it was contested by both the defendants on common defence, as the written statement filed by the first defendant was adopted by the second defendant. In addition, the second defendant never appealed against the decree and even the present appeal so far as the second defendant is concerned it has been dismissed and the impugned decree attained finality so far as the second defendant is concerned. Therefore, the said decree cannot be varied to the extent of first defendant. In this view of the matter also, the appeal is liable to be dismissed. Accordingly the appeal is dismissed, however there shall be no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 19.8.2010 KR