HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.807 of 2010 Date: 09.11.2010 Between: Ediga Narayana and others. … Appellants and Mula Eswara Reddy and others. … Respondents THE HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.807 of 2010 JUDGMENT : This second appeal is directed against the judgment and decree, dated 4.2.2010, in A.S.No.19 of 2006 passed by the Senior Civil Judge, Gooty, Anantapur District, confirming the judgment and decree, dated 29.3.2006, in O.S.No.127 of 2002 passed by the Junior Civil Judge, Tadipatri, Anantapur District, dismissing the suit for declaration of title over the suit schedule properties. 2. Appellants are plaintiffs and respondents are defendants in the suit O.S.No.127 of 2002. For the sake of convenience, the parties are referred to, as per their array in the suit before the trial Court. 3. The brief facts of the case, that are necessary for proper disposal of the present second appeal, may be stated as follows: 4. The plaint schedule property is a hayrick yard situated in Namanankapalli village of Peddapappur Mandal in Sy.No.513-P.R.C.No. of the said village and it originally belonged to one Ediga Lakshmanna, and except the said Ediga Lakshmanna, no others had right, title or interest over the schedule mentioned property. Later on, the said Ediga Lakshmanna died. Ediga Lakshmanna had a younger brother, by name Pedda Gampanna, who had a son by name Balappa. The said Balappa had two sons, namely Pedda Muneppa and Gampanna. The 1st plaintiff is the son of Pedda Muneppa and the 2nd plaintiff is the son of Gampanna and the 3rd plaintiff is the son of the 2nd plaintiff. Therefore, the plaintiffs got title over the suit schedule property through Ediga Lakshmanna and that they are in continuous possession and enjoyment of the said property, that the defendants claim their right over the plaint schedule property without any manner of right and that they have obtained registered sale deeds in their favour from the persons, who had no right or title to the suit property. Therefore, the plaintiffs filed suit for declaration of title in respect of the plaint schedule property and to grant consequential permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the plaint schedule property. 5. On the other hand, defendant No.2 filed a written statement, which was adopted by defendant No.1 and 3, inter alia stating that Balappa, the brother of Ediga Lakshmanna, and his sons Muneppa and Gampanna are nothing to do with the plaint schedule property, that the allegation that after the death of Ediga Lakshmanna, the children of E.Balappa inherited the property and were enjoying the same as a Kallam is totally false, that Ediga Lakshmanna had a daughter by name Lakshmamma and she was given in marriage to one K.Balanna of Boorugula village of Kurnool District. She had a son by name Kristaiah. The said Lakshmamma died and her husband K.Balanna and son Kristaiah are living at Pamidi, that after the death of Ediga Lakshmanna, the landed property in S.No.496-C and Sy.No.508-B along with Kallam, which is the plaint schedule property, devolved on Ediga Lakshmamma, the only daughter of Ediga Lakshmanna, that the said Lakshmamma sold Sy.No.496-C and Sy.No.508-B in favour of Nossam Pedda Narayana of Namanankapalli village under a registered sale deed, dated 21.8.1951 and delivered possession thereon, that therefore the claim of the plaintiffs that they inherited the plaint schedule property from Ediga Lakshmanna is false and hence the suit is liable to be dismissed. 6. Basing on the above pleadings, the trial Court framed the following issues for trial: 1. Whether the plaintiffs are entitled for declaration of title to the suit property? 2. Whether the plaintiffs are entitled for permanent injunction as prayed for? 3. Whether the suit is barred by limitation? 4. To what relief? Apart from the above issues, the trial Court framed the following additional issue Nos.1 and 2 on 9.3.2004, and issue No.3 on 15.4.2005. 1. Whether Kristaiah the grand son through Lakshmamma daughter of Lakshmanna is the living legal heir of Lakshmanna? 2. Whether the suit as framed by the plaintiffs is maintainable? And 3. Whether the plaintiffs have perfected title over the plaint schedule property by adverse possession? 7. To substantiate their case, on behalf of the plaintiffs P.Ws.1 and 2 were examined and Exs.A-1 to A-18 were marked. On behalf of the defendants D.Ws.1 to 5 were examined and Exs.B-1 to B-11 were marked. 8. The trial Court, after considering the evidence, both oral and documentary, and the material on record, came to the conclusion that the plaintiffs failed to establish their title and possession over the suit schedule property and accordingly dismissed the suit. On appeal in A.S.No.19 of 2006, the lower appellate Court also dismissed the appeal, confirming the judgment and decree of the trial Court. Challenging the same, the present second appeal is filed. 9. Learned counsel for the appellants-plaintiffs raised the following three substantial questions of law— (a) Whether the appellate Court is correct in holding that the adverse possession commenced as against the 4th defendant from the date he was impleaded as a party to the suit since adverse possession commenced when the appellants entered into possession of the property soon after the death of Lakshmanna about 50 years ago. (b) Whether the lower appellate Court is correct in not acting upon Exs.A-2 to A-12, which establish the adverse possession of the appellants. (c) Whether the lower appellate Court is correct in not accepting the case of the appellants that the respondents do not get any right as their vendor Singanna himself had no right as no document of title was filed. 10. After the amendment of Section 100 C.P.C. under the C.P.C. (Amendment) Act, 1976, the High Court must be satisfied that the case involves a substantial question of law. In view of the amendment in the section, scope of second appeal has been considerably narrowed down and substantially curtailed. 11. With regard to the substantial questions of law raised by plaintiffs are concerned, the plaintiffs relied upon Exs.A-3 to A-11, which are the land revenue receipts to show that they are in continuous possession over the suit schedule property. There cannot be any dispute that the plaintiffs, who are claiming adverse possession over the property of others, must show under Article 65 of the Limitation Act, 1963, that they are in continuous and uninterrupted possession of the plaint schedule property to the knowledge of the true owner. This evidence is lacking. It is the case of the plaintiffs that they have perfected their title by adverse possession. It is also the case of plaintiffs that the defendants have no right, title and interest over the property. When plaintiffs claim title to the property, question of claiming adverse possession against the defendants does not arise. Evidence is let in to show that the defendants are not the true owners of the property and they have no title to the schedule property. 12. With regard to title over the plaint schedule property, Ex.B-5 original 10(1) extract, and Exs.B-6 to B-11 – No.3 Adangal receipts, would clearly go to show that the defendants are in possession of the property. Those documents do not confer any right, title and interest in the property. Therefore, their title to the property has not been established beyond preponderence of probability by the plaintiffs. Perhaps, that is the reason why the plaintiffs are claiming adverse possession. It is the case of the plaintiffs that the defendants have no title to the property. There cannot be any doubt that in order to claim acquisition of title by adverse possession, the same must be hostile at its inception, and possession in order to be adverse must be continuous, hostile and open to the knowledge of the true owner. There is no evidence to show that to the full knowledge of the defendants the plaintiffs are in continuous and uninterrupted possession over the property over 12 years preceding to the filing of the suit. 13. Therefore, the trial Court has rightly dismissed the suit, and the findings of the trial Court are based on proper appreciation of evidence on record. The lower appellate Court also, on re-appreciation of the entire evidence on record, concurred with the findings of the trial Court. As no finding of the trial Court as well as the lower appellate Court is shown to be perverse and no substantial question of law is involved in this second appeal, the question of admitting the second appeal does not arise. 14. Accordingly, the second appeal is dismissed, at the stage of admission. No order as to costs. ________________________ JUSTICE K.C. BHANU 09.11.2010. Msr THE HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.807 of 2010 09.11.2010 (Msr)