HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE K.S. APPA RAO L.P.A.No.39 of 1987 JUDGMENT: (Per Hon’ble Sri Justice K.S. Appa Rao) This appeal is filed by the plaintiff aggrieved by the judgment dated 12-09- 1986 in A.S.No.66 of 1980, which was passed dismissing the appeal and confirming the dismissal order dated 11-03-1977 passed in O.S.No.125 of 1975 on the file of the II Additional District Judge, Visakhapatnam. For convenience sake, the parties hereinafter will be referred to as they are arrayed before the trial Court. 2. The brief facts of the case, which are necessary for the disposal of this appeal, are as follows: The plaintiff filed O.S.No.125 of 1975 for declaration of her title in respect of the plaint schedule lands and for permanent injunction restraining the defendants from interfering with her possession and enjoyment of the schedule lands. According to the plaint averments, the plaint schedule lands situated in China Mushidivada are jeroiti lands in the erstwhile Vizianagaram estate. Prior to the abolition of the estate, late John Charles Paul was the ryot of the said lands for 15 years with rights of permanent occupancy and he was paying cist to the estate. After his death in the year 1943, his widow Mrs. Ruth Paul succeeded to his estate including the plaint schedule lands and she continued in possession and enjoyment of the lands as a tenant with the rights of permanent occupancy and she was paying the cist to the Vizianagaram estate. Subsequent to the abolition of the estate, the settlement authorities issued a rough patta in favour of Mrs. Ruth Paul recognizing her as the owner of the suit lands. Mrs. Ruth Paul gifted the plaint schedule property to the plaintiff under a registered gift deed dated 22-02-1963 and delivered possession of the land to the plaintiff, who accepted the gift, and since then the plaintiff is in possession and enjoyment of the suit lands as absolute owner. Late John Charles Paul had put up a big thatched cottage in the suit land and was residing therein with his wife. The plaintiff was paying the taxes due to the government and her name was also entered in the registers and records of the revenue department as pattadar and owner of the suit lands. When the first defendant started interfering with the peaceful possession and enjoyment of the plaintiff in respect of the suit lands on the ground that he had obtained sale deed in respect of those lands from the second defendant, the plaintiff filed the present suit stating that the defendants had no right, title or possession over the suit schedule property and the second defendant could not convey any title to the first defendant under the alleged sale deed. In any event, the plaintiff and her predecessors in interest have perfected their title to the suit lands by adverse possession. Therefore, the plaintiff prayed to decree the suit. 3. The first defendant filed written statement and the averments, in brief, are as follows: The suit land originally belongs to L.W. Griffin who had purchased the same from the predecessors in title and he is in possession and enjoyment of the same till his death. After his death, his properties including the suit lands devolved on his heirs i.e., R.R. Griffin and R.J. Griffin and they have leased out the entire suit lands to the first defendant. Even prior to the lease, the first defendant was a lessee of the suit lands under late L.W. Griffin. Subsequently, the first defendant purchased 1/3rd share from out of the suit lands from R.J. Griffin, who is the second defendant, under a registered sale deed dated 14-11-1968. Thus the first defendant is in possession of 2/3rd portion of the suit land as lessee and as owner in respect of the remaining 1/3rd portion. It is further urged that the rough patta said to have been granted to Mrs. Ruth Paul was obtained by fraud and misrepresentation. Mrs. Ruth Paul filed O.S.No.100 of 1964 on the file of the District Munsif’s Court, Visakhapatnam, against the first defendant and another for declaration of title and for permanent injunction, and the suit was dismissed. Therefore, the plaintiff is estopped from questioning the right, title and possession of the first defendant. The alleged gift deed dated 22-02-1963 is not true, valid and it was never acted upon. The first defendant built the thatched shed in the suit schedule land and raised a casuarinas tope and he is also using the suit land for passage of the lorries to the quarry. Having lost the suit in O.S.No.100 of 1964, Mrs. Ruth Paul has set up the plaintiff with a view to harass the defendants, and that she did not prefer any appal against the judgment in O.S.No.100 of 1964. Therefore, he prayed to dismiss the suit. 4. The second defendant filed written statement the averments of which, in brief, read as follows: The suit lands were always owned and possessed by late L.W. Griffin who died in the year 1959. During his life time, he reclaimed the land, raised fruit-bearing trees, built a house and dug a well and was residing in that house. After his death, his cook Mrs. Ruth Paul set up a false title to the suit lands under the alleged Will, dated 01-07-1959, which was found to be false in O.P.No.14 of 1960 on the file of the District Court, Visakhapatnam, filed by the heirs of L.W. Griffin for grant of letters of administration. The question of title to the suit property was left open to be decided in a suit. In pursuance of such finding, Mrs. Ruth Paul filed O.S.No.100 of 1964 on the file of the District Munsif’s Court, Visakhapatnam, for declaration of title and for injunction, and the suit was dismissed and therefore, the decision operates as res judicata. As L.W. Griffin died intestate, his brothers J.J. Griffin and R.R. Griffin and his sister’s children succeeded to the suit property. J.J. Griffin also died in 1960. He bequeathed his 1/3rd share in favour of the second defendant. The second defendant, as the executor under the Will of late J.J. Griffin, took out probate in O.P.No.13 of 1960 on the file of the District Court, Visakhapatnam in respect of 1/3rd of the properties of late L.W. Griffin including the suit lands. During the pendnecy of the proceedings in O.P.Nos.14 and 13 of 1960, Mrs. Ruth Paul purported to have obtained a rough patta in respect of the suit lands on false grounds. The second defendant or the heirs of late L.W. Griffin had no notice of the proceedings issued granting the said rough patta and as such, it is not binding on them. Therefore, the suit is not maintainable and it is liable to be dismissed. 5. Basing on the rival contentions, the trial Court framed as many as 11 issues. Issue Nos.1, 4 and 7 are crucial issues. In order to prove their case, on behalf of the plaintiffs, PWs.1 to 5 were examined and Exs.A-1 to A-49 were got marked. On behalf of the defendants, DWs.1 to 4 were examined and Exs.B-1 to B- 19 were got marked. Among the parties, the plaintiff was examined as PW-1, the first defendant was examined as DW-3 and the second defendant was examined as DW-4. 6. The trial Court, after considering the oral and documentary evidence and the arguments advanced by both counsel, dismissed the suit through the judgment dated 11-03-1977. Being aggrieved, the plaintiff preferred A.S.No.66 of 1980 before this Court and a leaned single Judge of this Court dismissed the appeal through the judgment dated 12-09-1986 confirming the order of the trial Court. Aggrieved by the same, the present appeal is filed by the plaintiff. 7. Learned counsel appearing for the plaintiff-appellant herein mainly urged that the judgment and decree of the learned single Judge is vitiated by substantial question of law and resulted in miscarriage of justice as the learned single Judge failed to frame points for determination, which is mandatory under Order 41 Rule 31 of C.P.C., and thereby arrived at wrong conclusions. In support of his contentions, the learned counsel placed reliance on the decisions reported in DONGANNA v. JAMMANNA, NAGINDAS v. DALPATRAM , HARIRAM LEHRUMAL SINDHI v. ANANDRAO NARAYANRAO MUKATI , BADDULA LAKSHMAIAH v. SRI ANJANEYA SWAMI TEMPLE , PUSHPAGIRI MATH v. KOPPARAJU VEERABHADRA RAO , SMT. ASHA DEVI v. DUKHI SAO , G. AMALORPAVAM v. R.C. DIOCESE OF MADURAI and B.V. NAGESH v. H.V. SREENIVASA MURTHY . 8. Learned counsel appearing for the respondents, while supporting the impugned order, contended that there are no grounds to interfere with the order of the learned single Judge and sought for dismissal of the appeal. 9. Now the points arise for determination are: 1. Whether the plaintiff got plaint schedule property under the gift deed dated 22-02-1963? 2. Whether the plaintiff acquired title by adverse possession? and 3. Whether the order of the learned single Judge is sustainable? POINT Nos.1 to 3: 10. It is the case of the plaintiff that she got the plaint schedule property from Mrs. Ruth Paul under the gift deed dated 22-02-1963 and she is entitled to be declared as absolute owner of the same. The suit schedule property originally belongs to L.W. Griffin. The second defendant is the brother of L.W. Griffin. It is the case of the defendants that after the death of L.W. Griffin, his properties including the suit lands devolved on his heirs, i.e., the second defendant and one R.R. Griffin, and they leased out the entire suit lands to the first defendant. Subsequently, the first defendant purchased 1/3rd share out of the suit lands from the second defendant. Thus the first defendant is in possession of 2/3rd portion of the suit land as lessee and as owner in respect of the remaining 1/3rd portion. 11. It is the admitted case of both sides that the suit lands were taken over for the purpose of military during the Second World War. The plaintiff has filed Ex.A-24, which is said to be the copy of the requisition proceedings, dated 06-01-1944 in which Mrs. Ruth Paul is shown as occupier. Admittedly Ex.A-24 purports to be a true copy. The defendants have filed Ex.B-4 issued by the Collector, Visakhapatnam, which shows the particulars of the compensation payable for the schedule lands and the name of the owner is mentioned as L.W. Griffin therein. If really Mrs. Ruth Paul was in possession of the suit lands, she must have received the compensation, but no such evidence is forthcoming. 12. PW-1 is the plaintiff herself. PW-2 is an attesting witness to Ex.A-2 gift deed. PW-3 is another witness examined on behalf of the plaintiff and he deposed about his taking the suit lands on lease from the plaintiff, and the execution of Exs.A-39 and A-48 agreements. According to him, he raised casuarinas tope on sharing basis after taking the land on lease from the plaintiff in the year 1964. PW-4 is a neighbour to the suit schedule property. PW-5, who is said to be the servant under the plaintiff and Mrs. Ruth Paul, deposed that the land was never in the possession of Griffin. 13. As stated already, the defence is that on the death of L.W. Griffin in 1959, his properties including the suit land devolved on his two brothers R.R. Griffin and J.J. Griffin and on the daughters of his pre-deceased sister, and that J.J. Griffin also died an year later bequeathing his properties to the second defendant and the second defendant sold his 1/3rd share in the suit lands to the first defendant under Ex.B-16, registered sale deed, dated 14-11-1968. 14. DW-1 is the Village Karanam of China Mushidivada. He gave evidence to the effect that the first defendant raised casuarinas tope in the suit schedule land taking it on lease from L.W. Griffin. DW-3 is the first defendant himself. He claims to have taken the suit land on lease from L.W. Griffin and subsequently after his death, he claims to have taken it on lease from R.R. Griffin and R.J. Griffin. According to his evidence, after the death of L.W. Griffin, Mrs. Ruth Paul started getting the lands ploughed and when he obstructed her, she filed a suit in O.S.No.100 of 1964 against him and another, and the suit was dismissed. DW-4 is R.R. Griffin, who is one of the brothers of late L.W. Griffin, and father of the second defendant. He deposed about the lease of the suit lands to the first defendant and about the subsequent execution of Ex.B-16, sale deed, by the second defendant. 15. Ex.B-2 is said to be a copy of the letter dated 12-02-1948 addressed by L.W. Griffin to the Collector, Visakhapatnam. According to DW-2, after the death of L.W. Griffin, himself and his brothers sent a communication as per the original of Ex.B-18, dated 22-09-1954, to the Collector, Visakhapatnam, requesting that their names should be recorded in the records and the acknowledgement of the same was marked under Ex.B-19, dated 23-09-1959. It clearly shows that the defendants asserted their right in the suit schedule property immediately after the death of L.W. Griffin. 16. Admittedly, the plaintiff filed the suit for declaration of title and possession of the property. Therefore, it is for her to prove the title by the reason of adverse possession. Though the plaintiff contends that she acquired title by adverse possession, the same is not proved by examining Mrs. Ruth Paul who is the material witness. However, PW-5 was examined on that score. Therefore, non-examination of Mrs. Ruth Paul would justify the adverse inference being drawn against the plaintiff. It may also be noted here that in O.P.Nos.14 and 13 of 1960 filed by the plaintiff as well as Mrs. Ruth Paul, it was contended that late L.W. Griffin executed a Will, dated 01-07-1959 wherein he acknowledged that the suit property belongs to Mrs. Ruth Paul. The Will was held to be a forgery one. The said Will was not filed in the proceedings. Thus upon consideration of the entire evidence, we are unable to accept the case of the plaintiff that herself and her purchasers in interest have not perfected title by adverse possession. Accordingly, the alleged gift deed Ex.A-2, dated 22-02-1963 executed by Mrs. Ruth Paul in favour of the plaintiff, is not valid and that she had no title of the property and the same is not binding on the defendants. On the other hand, late L.W. Griffin had title to the suit property and on his death, the property devolved on his legal heirs. 17. A perusal of the orders of the learned single Judge, the learned single Judge proceeded on the basis that the documents standing in the name of L.W. Griffin should enure only to the benefit of the persons claiming under him. He placed reliance on Ex.A-16, dated 14-10-1940, patta issued in the name of L.W. Griffin, Ex.A-22, letter confirming the assignment in favour of L.W. Griffin in respect of S.No.24-A and Exs.A-17 and A-21, cist receipts, issued in the name of Griffin, and held that L.W. Griffin was the owner of the property in question and he had right and interest therein. 18. It is the case of both parties that the suit schedule land was admittedly within the Zamindari of Vijayanagaram. The trial Court held that Ex.A-10, rough patta, cannot be taken as conferring titles since no order under Section 11 of the Estates Abolition Act has been produced by the plaintiff. In the absence of such proof, the finding that L.W. Griffin was the ryot in respect of the suit land must be held to have been clearly borne out from the evidence on record. Though it is contended by the learned counsel for the appellant that the learned single Judge has not framed points for determination as contemplated under Order 41 Rule 31 of C.P.C., in view of the positive finding of the learned single Judge on the crux of the issues raised by the counsel against the order of the trial Court dated 11-03-1977, it cannot be said that he has not considered the subject matter separately on point wise. Therefore, in any view of the matter, the finding of the trial Court that L.W. Griffin was the owner of the suit schedule property is justified and based on the material on record, which was rightly confirmed by the learned single Judge of this Court. 19. So far as the plea of adverse possession is concerned, the plaintiff failed to prove the same through any documentary evidence. The trial Court well discussed the evidence on record in detail while evaluating the documentary evidence and came to the correct finding while answering the main issues. Thus the finding of the trial Court on the issues decided cannot be said to be vitiated. Therefore, in any view of the matter, the orders of the trial Court and the learned single Judge are sustainable and needs no interference as they are based on the material on record. 20. Accordingly, the Letter Patent Appeal is dismissed confirming the orders of the trial Court and the learned single Judge. No order as to costs. _______________ V. ESWARAIAH, J _______________ K.S. APPA RAO, J Date: 29-11-2011 YCR