THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.1314 of 2010 Dated:- 30th April, 2011 Between:- Baddam Chinna Somanna and another …Appellant AND Jamal and another …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.1314 of 2010 JUDGMENT:- This appeal is directed against the judgment and decree dated 06.04.2009 passed in A.S.No.64 of 2007 by the VIII Additional District Judge, Nizamabad (‘lower appellate Court’, for brevity), whereby and whereunder, the judgment and decree dated 25.07.2007 passed in O.S.No.101 of 2004 by the Junior Civil Judge, Armor (‘trial Court’, for brevity), was set aside. 2. The appellants 1 and 2 herein are defendants 1 and 3 in the Original Suit and the respondents 1 and 2 herein are the plaintiff and the second defendant respectively before the trial Court. For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the trial Court. 3. The brief facts of the case are as follows:- The plaintiff – Jamal and his elder brother – Nabi Sab are the children of Ashabee and Bandige Sab. Both of them were having Acs.6.18 guntas of land in Survey No.369 situated at Kammarpally Village and Mandal, Nizamabad District. Out of the said land, Acs.3.09 guntas of land towards the northern side in Survey No.369/P-2 fell to the share of the plaintiff and it is the suit schedule property and the remaining part of Acs.3.09 guntas of land towards south to the suit schedule property fell to the share of Nabi Sab as per the plaint schedule. Besides said Acs.6.18 guntas of land, both the plaintiff and his elder brother Nabi Sab were having one acre of land and one house. The plaintiff’s elder brother Nabi Sab died in the year 2002 and Ashabee also passed away long back, but however, the records reveal that she was alive on the date when the first defendant claimed to have purchased the entire Acs.6.18 guntas of land from Nabi Sab. 4. The specific case of the plaintiff is that his mother – Ashabee is the owner, Pattedar and Possessor of the entire Acs.6.18 guntas of land which was her ancestral property and that after the demise of her mother, he himself and his brother – Nabi Sab became co-owners and subsequently partitioned the same between them and each of them got half share, i.e., Acs.3.09 guntas of land in Survey No.368 and as such, he got the suit schedule property and that Nabi Sab died six years back prior to the date of filing of the suit and during his lifetime and that he had sold away his half share. The further case of the plaintiff is that for the purpose of his livelihood, he was residing at Mumbai and came back recently to his village – Kammarpally and found that the defendants are in illegal possession of his half share of land i.e., the suit schedule property. Then, he requested the defendants to vacate the same but they have been evading to do so, on some pretext or other. Then, he got issued a legal notice to the defendants on 20.03.2004 and though it was served on the first defendant and third defendant, they did not give any reply. Alleging that he was illegally dispossessed from the suit schedule property and that the cause of action arose on 20.03.2004, i.e., the date of issuance of legal notice to the defendants, the plaintiff filed the Original Suit for declaration of title and recovery of possession. 5. The first defendant filed written statement. As seen from the recitals and evidence, his main case is that the total extent of Acs.6.18 guntas of land in Survey No.369 originally belongs to Nabi Sab, i.e., the elder brother of the plaintiff and that said Nabi Sab sold away the same, i.e., the entire Acs.6.18 guntas of land to him on 01.03.1973 for a sale consideration of Rs.5,000/- and delivered the possession to him on the same day and since then, he has been in peaceful possession of the entire Acs.6.18 guntas of land, i.e., including the suit schedule property. It is also his contention that Nabi Sab executed a simple sale deed and that he had handed over the original sale deed to the Village Administrative Officer who subsequently died and that the original sale deed could not be traced. It is also his case that he has developed the land, made it cultivable and also dug three bore wells to have the source of irrigation and has been raising crops Turmeric, Maize, Jowar, Sajja etc., and that he has been in continuous and uninterrupted possession of entire Acs.6.18 guntas of land adverse to one and all. It is also his contention that though he received the legal notice dated 20.03.2004 issued by the plaintiff, but on the advise of his counsel, he did not give any reply and that the plaintiff never approached him and demanded the delivery of the suit schedule property and that no cause of action arose to file the suit. 6. During the pendency of the suit, the first defendant died and his wife – Baddam Ramani was brought on record as third defendant as the Legal Representative of the first defendant, as per the orders dated 15.11.2006 in I.A.No.227 of 2006 of the trial Court. The second defendant as set ex parte on 30.12.2004. 7. Basing on the above rival contentions, the trial Court framed the following issues:- 1. Whether the plaintiff is entitled to the declaration of title and recovery of possession as prayed for? 2. To what relief? 8. On behalf of the plaintiff, the plaintiff himself was examined as P.W.1 and one Konda Narsaiah was examined as P.W.2 and Exs.A.1 to A.7 were marked. On behalf of the defendants, no oral and documentary evidence has been adduced except examining the first defendant (during his life time) as D.W.1 and one Pedda Rajanna as D.W.2. 9. The trial Court, on appreciation of oral and documentary evidence on record, held that the plaintiff admitted that he was aged about 68 to 70 years on the date of giving his evidence and that he has been working as a Village Servant since the inception of the Mandal system and this admission falsifies his case that he was staying at Mumbai for his livelihood and as such, he does not know when the first defendant occupied the suit schedule property. It was also held that the plaintiff has not given any proper explanation for non filing of the suit against the defendants from the year 1984 to 2004 and that the plaintiff admitted that their family was having other agricultural land of one acre and a house and that he has not whispered about the other properties in his plaint and that no evidence has been adduced in support of his contention that the suit schedule property fell to his share. It was also held that the plaintiff did not approach the Court during the lifetime of his brother Nabi Sab and that Ex.A.7 – C.C. of the Form No.I-A of Record of Rights filed by the plaintiff himself go to show that the first defendant purchased the entire Acs.6.18 guntas of land which includes the suit schedule property. Holding that the burden of proof is on the plaintiff to prove his case and that he failed to prove his case and that the suit is barred by limitation under Article 65 of the Limitation Act and under Section 6 of the Specific Relief Act and that the evidence of D.Ws.1 and 2 appears to be cogent and trustworthy, dismissed the suit. 10. On appeal, the lower appellate Court, held that the fact that the entire Acs.6.18 guntas of land originally belongs to the mother of the plaintiff is not in dispute and as such the plaintiff, being her natural son, would get half share in it and in such circumstances, there is no need to prove the partition between the plaintiff and his brother. It is also observed that the contents of Ex.A.7 – C.C. of form No.I-A of Record of Rights issued by the MRO, Kammarpally go to show that the names of the plaintiff and his elder brother are shown as Pattedars and possessors each for an extent of Acs.3.09 guntas of land and that the first defendant did not give reply to the legal notice issued by the plaintiff and that there is no proof to show that the first defendant has purchased the suit land from Nabi sab and that the defendants failed to adduce any evidence and that the trial Court did not appreciate the documentary evidence in proper perspective and that the findings of the trial Court that the suit is barred by Limitation under Article 65 of the Limitation Act or under Section 6 of the Specific Relief Act are not correct as those provisions are not applicable to the facts of the case and that the plaintiff has proved his title and is entitled to recovery of possession. Holding so, the lower appellate Court allowed the appeal and consequently decreed the suit. Aggrieved by the same, defendants 1 and 3 preferred this Second Appeal. 11. While admitting this Second Appeal by this Court, Ground No.3 was taken as substantial question of law, which reads as follows:- 3. The following substantial questions arise for consideration in the second appeal:- 1) Whether the suit is maintainable when the suit land was in occupation of the appellant since 1973 to till now continuously, peacefully, uninterrupted and the plaintiff did not raise any objection from 1984 to 2004 year when he worked as a Village Servant? 2) Whether the appellate Court acted contrary to the law of adverse possession, laid by the Apex court in 2003 (1) DT 171 (SC)? 3) The plaintiff can take advantage of the defendant’s weak case, as settled by the Apex Court in (2007) 3 SCC 737, 2005 (3) ALD 545 (DB), 1991 (2) ALT 449? 4) Whether it is mandatory to plead the law or it can be pleaded at any time pending the proceedings viz. Section 6 of the Specific Relief Act, Section 64 and 65 of the Indian Limitation Act etc.,? 5) Whether the appellant possession since more than 30years, Title has been overlooked by the appellate court? Whether the plaintiff came to the Court with clean hands? 12. Sri K.M.Mahender Reddy, learned counsel for the appellants/defendants 1 and 3, submitted that the plaintiff has suppressed the material facts with oblique motive did not give the particulars of the properties possessed by his mother, properties that were allotted to him and to his brother, the date when the partition took place between himself and his brother and when he was dispossessed from the suit schedule property and when the cause of action arose. It is also his submission that the date of issue of legal notice to the first defendant cannot be treated as date of arising of cause of action. It is also submitted that though the plaintiff averred that he had been to Mumbai and recently came to his village and found that the defendants are in illegal possession of the suit schedule property, but he had admitted in his evidence that he has been working as Village Servant since the inception of Mandal System and as rightly held by the trial Court, the Mandal system came into force from the year 1984 and thus it is clear that the plaintiff has been working as Village Servant since the year 1984 and residing at Kammarpally village and, therefore, his version that he recently came to the Kammarpally Village and found that the defendants are in illegal possession of the suit schedule property is absolutely incorrect. It is also submitted that the plaintiff has not adduced any evidence to prove the partition of Acs.6.18 guntas of land between himself and his brother particularly failed to show that the suit schedule property fell to his share in the partition. It is also submitted that since the plaintiff was working as village servant and attached to Mandal Revenue Office, Kammarpally, he managed to get some entries made in revenue records and that he obtained Record of Rights in the year 2004 and soon after obtaining the same, he filed the suit. It is also submitted that admittedly, though the plaintiff alleges that the defendants are in illegal possession of the suit schedule property, he did not raise his little finger at least from 1984 onwards and that the defendants have perfected their title even if they have not proved the purchase of the land from Nabi Sab. It is also his submission that the documents filed by the plaintiff, particularly Ex.A.7 – C.C. of form No.I-A of Record of Rights issued by the MRO, Kammarpally itself shows that the first defendant was in possession of the suit schedule property. In support of his contention that the plaintiff has to stand or fall on his own pleadings and cannot depend upon the weakness in the case of the defendants, learned counsel has relied upon the judgments in the cases between Christopher Barla Vs. Basudev Naik (D) by Lrs.[1], Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (D) and Ors.[2], Ittianam Vs. Cherichi alias Padmini[3], Moran Mar Basselios Chatholicos Vs. Most Rev. Mar Poulose Athanasius[4], Moran Mar Basselios Catholicos Vs. Thukalan Paulo Avira[5], Brahma Nand Puri Vs. Nelci Puri[6] and Vice Chairman, Kendriya Vidyalaya Sanghatan Vs. Girdharilal Yadav[7]. 13. Per contra, Sri Kovturu Vinay Kumar, learned counsel for the respondent/plaintiff submitted that there is no dispute that the mother of the plaintiff was the original owner of entire Acs.6.18 guntas of land which includes the suit schedule property and that the plaintiff and his brother Nabi Sab are the only sons to their mother – late Ashabee and that they were joint owners and that subsequently they partitioned the entire Acs.6.18 guntas of land between themselves and that even in the absence of any specific evidence, since both the plaintiff and his elder brother – Nabi Sab have got equal right in the property, they get equal shares and their need not be any specific evidence to prove the said partition. It is also his submission that the documents filed by the plaintiff and the oral evidence adduced by him proves that the plaintiff and his brother – Nabi Sab were shown as owners of each Acs.3.09 guntas of land in the revenue records and that from the entries made in revenue records, the only presumption that can be drawn is that after partition of the said land, their names have been noted in the revenue records to the extent of the land held by them. His main submission is that the defendant has illegally encroached into the land of the plaintiff and, therefore, the plaintiff is entitled for declaration of title and recovery of possession. It is his further submission that the first defendant claimed that he purchased the entire land from the elder brother of the plaintiff – Nabi Sab by virtue of sale deed, but admittedly, he has not filed the said sale deed before the Court and his contention that the said sale deed was misplaced by the Village Administrative Officer cannot be accepted. It is further submitted that since the elder brother of the plaintiff – Nabi Sab has sold away his share of land of Acs.3.09 guntas, the plaintiff has fairly admitted that fact and is not claiming the land allotted to his brother and he is only claiming the land allotted to him i.e., the suit schedule property in the partition. It is further submitted that the defendants have not filed even a scratch of paper in support of their contention that in the absence of any evidence, their contention that the first defendant purchased the entire Acs.6.18 guntas of land from Nabi Sab cannot be accepted and that even otherwise, said Nabi Sab had no right to sell the land of the plaintiff. 14. I have considered the above rival contentions. The points that arise for consideration in this appeal are whether the findings of the lower appellate Court are perverse or sustainable and whether the substantial question of law framed, as referred above, arises in this appeal. 15. The specific case of the plaintiff is that originally, the total extent of Acs.6.18 guntas of land belongs to his mother – Ashabee and that himself and his brother Nabi Sab are the only sons of their mother and they became co-owners and partitioned the said land between them and each of them got half share in the above said land and thus he became the owner of the suit schedule property of Acs.3.09 guntas of land. It is also his case that he had been to Mumbai to earn his livelihood and recently came back to his village and found that the defendants are in illegal possession of the suit schedule property and filed a suit for recovery of possession after issuing the legal notice to the defendants on 20.03.2004. The specific case of the defendants 1 and 3 is that the entire land of Acs.6.18 guntas of land in Survey No.369 of Kammarpally village originally belonged to one Nabi Sab, who is the elder brother of the plaintiff, and that they purchased the entire land including the suit schedule land from said Nabi Sab on 01.03.1973 for a sale consideration of Rs.5,000/- and since then, they have been in possession and enjoyment of the said property and thus, the plaintiff has no title or possession on the suit schedule property. 16. It has to be seen that there are some peculiar circumstances in this case. The plaintiff has filed the suit against defendants 1 to 3 and in the said suit, the plaintiff has referred the name of the second defendant as ‘Paspula Reddy, S/o.Narsaiah, age not known, Occ: Agriculture, R/o. Kammarpally Village, Nizamabad District’. The plaintiff claimed that he got issued a legal notice to the defendants on 20.03.2004. The said legal notice sent to said Paspula Reddy has been returned un-served with endorsement “no such address in Kammarpally Village”. Summons sent to him through Court also returned un-served with endorsement “not living at Kammarpally Village”. Steps were ordered to be taken but since no steps were taken, initially, suit was dismissed against him but subsequently, on application, the said dismissal order was set aside and notice was published in the daily newspaper and then the second defendant was set ex parte. Even at the appeal stage also, the same thing happened. When the plaintiff himself was cross-examined as P.W.1, he admitted that no person by name ‘Paspula Reddy’, shown as defendant No.2, ever existed in their village. When there is no person by name Paspula Reddy residing at Kammarpally Village, then a question would arise as to why the plaintiff has made him as a party to the suit. The answer is simple. Since the said name appeared in Exs.A.5 and A.6 – C.C. of Pahanis for the year 2000 – 01 and 2002 – 03 respectively, the plaintiff filed suit against the said person showing him as second defendant. Admittedly, in Exs.A.5 and A.6 – C.C. of Pahanis for the year 2000 – 01 and 2002 – 03 respectively, in the possessors’ coloumn, the name of ‘Paspula Reddy S/o.Narsaiah’ is noted. It is not clear as to how the Village Administrative Officer has made entries in the Pahanis and how the revenue officials and Panchayat Secretary confirmed the same when there is no such person by name ‘Paspula Reddy’ in the village. The admission made by P.W.1 (Plaintiff) that there is no person by name ‘Paspula Reddy’ ever existed in Kammarpally Village establishes beyond any doubt that the entries made in Exs.A.5 and A.6 are factually incorrect. 17. Though the plaintiff averred that himself and his elder brother – Nabi Sab got partitioned Acs.6.18 guntas of land, he had not whispered the particulars of other properties in the plaint. Admittedly, the plaintiff and his elder brother – Nabi Sab were possessing Acs.6.18 guntas of land, a house and another one acre of agricultural land and it is not clear to whom that house and another one acre of land was allotted in the partition between the plaintiff and his brother. Admittedly, the plaintiff did not give any particulars of alleged partition. He has admitted that his elder brother Nabi Sab died about six years prior to the date of filing of the suit and admittedly, the suit was filed in the year 2004. This means, Nabi Sab probably died in the year 1998. However, in the cross-examination, the plaintiff had admitted that he is aged about 68 to 70 years on the date of giving evidence. Admittedly, his evidence was recorded on 11.03.2005. He further admitted that the partition took place when he was young. This means, the partition might have taken place between the plaintiff and his brother at least 30 to 40 years back. He further admitted that his brother sold his share of land. He did not whisper to whom and when his brother sold the land. The first defendant’s case is that he purchased the suit land in the year 1973. 18. The documents filed by the plaintiff go to show that even in Ex.A.1 – C.C. of the Pahani for the year 1974-75, the name of ‘Chinna Pothanna’ is shown in the coloumn of cultivator, but the name of the first defendant is ‘Chinna Somanna’. Thus, there is difference in both the names but however, it is clear that from the year 1974-75 onwards, neither the plaintiff nor his elder brother Nabi Sab were shown as the possessors at any point of time. 19. First of all, there is no evidence to prove the partition between the plaintiff and his elder brother Nabi Sab. The second aspect is that the plaintiff was never found to be in possession of the suit schedule property since the year 1974 and 1975. Therefore, the plaintiff has falsely made the averments in the plaint that for the purpose of earning livelihood, he was residing at Mumbai and recently came back to his village – Kammarpally and alleging that the defendants are in illegal possession of the suit lands, filed the suit. Admittedly, the suit was filed on 07.12.2006. Normally, the word ‘recently’, has to be interpreted within reasonable short period, a period less than six months and it cannot in interpreted otherwise. This version of the plaintiff has been demolished in the cross-examination. Admittedly, the plaintiff was aged between 68 to 70 years on the date of giving evidence. According to him, he was working as Village Servant attached to the office of the Mandal Revenue Officer, Kammarpally Village, since the inception of Mandal System. Admittedly, the Mandal System was introduced in the year 1984 (though at some places in the impugned judgment it is noted as 1994, but admittedly, the Mandal System was introduced in the year 1984). Thus, the cross-examination of P.W.1 (plaintiff) clearly shows that the plaintiff has been working as Village Servant from the year 1984 onwards in his village – Kammarpally. This evidence falsifies his contention that he recently came from Mumbai and came to know that the defendants recently occupied the suit land. It is not his case that he was cultivating the suit land till recently. He is also silent on the aspect as to when the defendants occupied his land. Even in the legal notice dated 20.03.2004 issued by the plaintiff, the plaintiff did not refer as to when the alleged partition took place between himself and his elder brother Nabi Sab and when the defendants had occupied his land. Thus, the plaintiff has been cleverly trying to conceal as to when the partition took place between himself and his brother and when the first defendant occupied the suit land and other important aspects. It has to be seen that in all