HON’BLE SRI JUSTICE G. BHAVANI PRASAD A.S. No.96 of 1994 Date: 23-10-2009 Between: Kushal Rao and others .. Appellants And Shyam Rao .. Respondent HON’BLE SRI JUSTICE G. BHAVANI PRASAD A.S. No.96 of 1994 JUDGMENT: The judgment and decree in O.S. No.6 of 1986 on the file of the Subordinate Judge’s Court at Bodhan dated 20-12-1993 decreeing the suit with costs in favour of the plaintiff, led the unsuccessful defendants to file the appeal. The facts leading to the appeal are that the plaintiff filed the suit claiming that he purchased Ac.7.37 guntas of dry land in S.No. 155 of Shakerga (Big) village, Madnoor Taluk under a registered sale deed dated 13-05-1963 for Rs.7,132-50 ps. and also purchased Ac.6.00 of dry land in S.No.164 of the same village under a registered sale deed dated 23-10-1967 for Rs.9,000/-. He is in physical possession since then, getting his name mutated and paying land revenue. The 1st defendant initiated proceedings before Tahsildar, Madnoor for correction of entry in Column No.16 in his favour in proceedings No.A1/855/79 dated 03-02-1979, for which the plaintiff submitted his objection petition dated 08-02- 1979. The Tahsildar, Madnoor in his judgment dated 27-06-1980 advised the plaintiff and the 1st defendant to approach competent civil Court for establishing their rights, as he could not come to any conclusion in the local enquiry as to who cultivated the suit lands. Defendants 1 and 2, the natural brothers of the plaintiff, illegally interfered with the plaintiff’s possession of the suit lands on 30-08-1980, which was resisted by the plaintiff. But the defendants ultimately succeeded in dispossessing the plaintiff in the 2nd week of October, 1984 when the plaintiff was absent from the village due to hospitalization of his wife at Nanded for about a month. Hence, the suit originally filed for a permanent injunction in respect of Ac.7.37 guntas and Ac.6.00 of the plaint schedule, was amended into one for declaration of the plaintiff’s title to the same and recovery of possession of Ac.5.11 guntas and Ac.4.00 of the plaint B schedule, future mesne profits from 1984-85 and costs. The defendants resisted the suit contending that the two items of plaint schedule were purchased by Parbhat Rao, father of the parties, with joint family funds and out of love and affection he got the sale deeds executed in the name of the plaintiff. The purchase was for the benefit of the joint family consisting of Parbhat Rao and the parties. During the lifetime of the father, a family settlement by way of partition of ancestral and joint family properties including the suit lands, took place in June, 1968 and since then the parties are in possession and enjoyment of their respective shares including the suit properties. The 1st defendant got Ac.2.25 guntas and the 2nd defendant and the plaintiff got Ac.2.26 guntas each in S.No.155, while each of the parties got Ac.2.00 in S.No.164. No document was executed for the actual partition by metes and bounds, but at the insistence of the mother of the 2nd defendant, the second wife of Parbhat Rao, for a document of settlement in view of the minority of the 2nd defendant, a document of settlement by way of partition was executed by Parbhat Rao and signed by him and the parties on 05-06-1968, the 2nd defendant being minor represented by his mother Bhoomavva. The document was attested by the uncle of the parties Shivraiah and other close relations and the document also speaks about the lands retained by the parents for their maintenance. The 1st defendant filed an application before the Tahsildar, Madnoor in February, 1979 to incorporate his name in the Pahani Patrika regarding his share in S.Nos.155 and 164 and the Revenue Inspector after enquiry and investigation submitted his report to the Tahsildar on 07-02-1979 along with a copy of panchanama and sketch. The 2nd defendant also filed a similar application on 7-05-1979 along with copy of settlement deed dated 05-06-1968, the original being with his mother. The Tahsildar, Madnoor instead of acting upon the report of the Revenue Inspector and the other evidence, surprisingly referred the parties to the civil Court. The plaintiff did not file the suit originally for declaration and possession and amended the suit, alleging dispossession in October, 1984. When he was out of possession at the time of institution of the suit in 1980 and omitted to seek the relief of possession, the amended relief is barred by Order II Rule 2 of the Code of Civil Procedure. Alternatively, the possession and enjoyment of defendants 1 and 2 of their respective shares openly and continuously to the knowledge of the plaintiff perfected their rights of ownership by adverse possession for more than 12 years prior to the suit. The suit is barred by limitation and the Revenue Divisional Officer, Bodhan allowed the application by defendants 1 and 2 against the orders of the Tahsildar, Madnoor and remanded the matter for fresh disposal. The suit land had a market value of Rs.9,000/- per acre on the date of amendment of the plaint and the plaintiff paid less Court fee by adopting the value shown as Rs.63,625/- in 1980. The plaintiff has no cause of action and hence, the suit be dismissed with costs. On such pleadings, the trial Court framed the following issues for trial. 1. Whether the plaintiff is entitled for decree of declaration of title of the suit lands ? 2. Whether the plaintiff is entitled for recovery of possession of schedule ‘B’ lands ? 3. Whether the plaintiff is entitled for future mesne profits till delivery of possession over ‘B’ schedule ? 4. To what relief ? A joint memo was filed by both parties to treat the evidence recorded in District Munsif Courts at Yellareddy and Madnoor as evidence in the suit and the evidence recorded in O.S. No.6 of 1986 may be treated as continuation of the evidence already recorded. The memo is allowed on 14-09-1988. P.Ws.1 to 7 and D.Ws.1 to 9 were examined and Exs.A.1 to A.20 and B.1 to B.25 were marked during trial. In the impugned judgment, the trial Court noted that O.S.No.59 of 1980 on the file of District Munsif’s Court Yellareddy for a perpetual injunction was transferred to the District Munsif’s Court, Madnoor on its formation, and the renumbered suit O.S. No.3 of 1982 was dismissed on 05-11-1982. A.S. No.18 of 1984 by the plaintiff before the Subordinate Judge’s Court, Bodhan resulted in remanding back the suit to the trial Court after the plaintiff amended the plaint seeking reliefs of declaration of title and recovery of possession. As the District Munsif’s Court, Madnoor lost its pecuniary jurisdiction after amendment, it ordered return of the plaint for presentation to proper Court, on which the suit was registered as O.S. No.6 of 1986 on the file of Subordinate Judge’s Court, Bodhan. The trial Court concluded that the evidence of P.Ws.1, 4 and 7 proved that with permission from revenue authorities for sale, the plaintiff alone purchased the land in S.No.155 by paying consideration to the vendor and the evidence of D.W.9, the scribe of Ex.A.1 sale deed, to the contrary, cannot be relied on. The trial Court also held that the purchase of land in S.No.164 under Ex.A.2 was also proved by P.Ws.1 and 5 to be between the plaintiff alone and the vendor for consideration of Rs.6,500/- paid as advance and Rs.2,500/- paid under Ex.A.2 by the plaintiff. The evidence of D.W.4, the vendor under Ex.A.2, was held to be not preferable in the light of the evidence of P.Ws.1 and 5 and Exs.A.2 and A.16. The trial Court also referred to Exs.A.3 to A.12 pahanies from 1967-68 to 1979-80 showing the plaintiff as pattedar and possessor and considered Ex.A.15 statement by the 2nd defendant about the absence of any document of partition as cutting at the root of Ex.B.1 and the evidence of D.W.1, the senior paternal uncle of the parties, and D.W.6, the scribe of Ex.B.1. After referring to Exs.B.13 and B.14 panchanamas and the evidence of D.W.5, the attesting witness to Ex.B.14, the trial Court noted that in Ex.A.13 order, the Tahsildar could not come to any conclusion while noting the absence of any partition deed. The non-filing of Ex.B.1 before the Tahsildar led, under the circumstances, to the trial Court holding Ex.B.1 to be not proved to be true and correct. While considering the evidence of P.Ws.3 and 6, the adjacent land owners, to be not helpful, the trial Court considered Exs.B.2 to B.12 land revenue receipts and Exs.B.15 to B.25 certified copies of pahanies also to be not helpful, while it also noted that Exs.B.15 to B.25 show the father of the parties as the pattedar and possessor in contrast with Exs.A.3 to A.12 showing the plaintiff as the pattedar and possessor. Preferring the evidence of the plaintiff and considering any presumption under Hindu law to have been rebutted by such evidence, the trial Court held the plaintiff to be entitled for declaration of title. As the possession and enjoyment of the defendants under Ex.B.1 was disbelieved and as Exs.B.13 and B.14 panchanamas were in 1979 and 1980, it was considered that the land revenue receipts commencing from 29-01-1975, the absence of clarity in the evidence of witnesses for the defendants as to since when the defendants are in possession and other circumstances, show that the suit was not barred for recovery of possession though it appeared from the evidence on record that the possession was taken by defendants 1 and 2 some years prior to the suit, but not as contended by the plaintiff. Though the trial Court observed that the plaintiff did not come to the Court with clean hands showing correctly when he lost possession, it found the plaintiff to be entitled to recovery of possession and also to future mesne profits to be ascertained in separate proceedings. Consequently, the trial Court decreed the suit as prayed for. The aggrieved defendants contended in the appeal that the heavy burden of proof on the plaintiff to establish the property to be his individual property overriding the presumption in favour of the defendants, was ignored. The partition and consequential possession of the sharers evidenced by Ex.B.1 were verified by the revenue authorities as seen from their reports, panchanamas and sketches. The separate payment of land revenue was not appreciated and any recovery of possession was barred by time and also by Order II Rule 2 of the Code of Civil Procedure, as the relief not claimed in O.S. No.3 of 1982 cannot be claimed in O.S. No.6 of 1986. The obtaining of Exs.A.1 and A.2 in May, 1963 and October, 1967 in the plaintiff’s name as the eldest of the brothers, while the father was very old, was as per normal practice and custom. The plaintiff did not show any independent income to purchase property worth more than Rs.20,000/- in 1963 and the presumption of joint family and joint family property stood unrebutted. The plaintiff did not explain his signature on Ex.B.1 and Ex.B.1 signed by all the parties including the father, cannot be rejected on any suspicion due to the 1st defendant not referring to the same in the mutation proceedings. Section 92 of the Evidence Act was no bar to prove Ex.B.1 and P.Ws.1, 4 and 7 were unduly relied on. Exs.B.13 and B.14 show Ex.B.1 to be acted upon and the plaintiff specifically admitted the earlier partition 22 years earlier and further in the cross-examination about the partition between the brothers in 1968, while claiming the suit property and other self-acquired properties of defendants 1 and 2 to be not included. The plaintiff, thus, admitted the existence of ancestral property and in spite of recording that the plaintiff did not come to the Court with clean hands, the trial Court came to erroneous conclusions and hence, defendants sought for reversing the impugned judgment and decree. The 1st appellant died during the pendency of the appeal and his legal representatives were brought on record as appellants 3 to 7 as per orders on A.S.M.P. No.696 of 2008, dated 06-09-2008. Sri Aravinda Kumar Agarwal, learned counsel representing Sri M. Papa Reddy, learned counsel for the appellants has strenuously contended that the amended reliefs in O.S. No.6 of 1986 for declaration, possession and mesne profits are barred by Order II Rule 2 of the Code of Civil Procedure due to not being claimed in O.S. No.3 of 1982 and in the absence of any leave or permission from the Court to seek such reliefs later. The evidence of D.W.1, the senior paternal uncle of the parties and surviving elder member of the family, coupled with the evidence of D.W.4, the vendor of the property under Ex.A.2, is independent, disinterested and acceptable. The signatures on Ex.B.1 could have been compared with admitted signatures in view of the enabling provision under Section 73 of the Evidence Act and in the absence of proof of any income for P.W.1 to purchase or payment of land revenue at any time for the lands, and in the light of the admitted existence of joint family and ancestral properties, the evidence of P.W.1 and the attestors of Exs.A.1 and A.2, P.Ws.4 and 5, stood discredited and P.Ws.2, 3 and 6 were even ignorant about the crops in the suit lands. The evidence produced by the defendants clearly discredits the plaintiff’s claims, apart from the admissions, inconsistencies and circumstances arising out of the plaintiff’s evidence. The panchanamas, sketches and reports of the revenue authorities prove the possession and enjoyment of the defendants since Ex.B.1 and hence, the learned counsel desired the plaintiff to be non-suited with costs. Sri P.V. Narayana Rao, learned counsel for the respondent referred to the absence of any reference to Ex.B.1 in Ex.A.14 application to the Tahsildar by D.W.1 and Ex.A.15 statement about the oral partition being attempted to be improved by introduction of Ex.B.1. The learned counsel referred to the evidence of D.W.2 as indicating that the plaintiff and defendants 1 and 2 purchased properties separately and argued that the evidence of D.W.4, the vendor, cannot be looked into due to Sections 91 and 92 of the Evidence Act. The plaintiff was never claimed to be the manager of the joint family to presume any documents in his name to be in that capacity and in fact, there was no pleading and proof of any ancestral nucleus. The alienations under Exs.A.1 and A.2 after obtaining the necessary sanction and permission under Section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act coupled with Exs.A.3 to A.12 and Exs.A.17 and A.18 pahanies establish the plaintiff’s version and it is for the defendants to establish any adverse possession making the suit barred under Article 65 of the Limitation Act, 1963, in which they failed. Hence, the learned counsel desired that the impugned judgment and decree be maintained. Both the learned counsel referred to certain precedents, which will be referred to in due course. The following points arise for consideration in this appeal: 1. Whether the suit is barred by Order II Rule 2 of the Code of Civil Procedure ? 2. Whether the plaint B schedule lands are the separate properties of the plaintiff acquired, possessed and enjoyed by him exclusively since purchase up to October, 1984 ? 3. Whether the plaint B schedule lands are the joint family properties of the parties and their father and were partitioned in June, 1968 and are being enjoyed by the parties in their respective shares ? 4. Whether the suit is barred by limitation ? 5. To what relief ? Point No.1: Order II Rule 2 of the Code of Civil Procedure, 1908 embodies the principle that a suit should include the whole claim of plaintiff in respect of the cause of action and any omission to sue in respect of any portion of his claim debars the plaintiff to sue afterwards in respect of the same except without the leave of the Court to sue for any relief separately. While the rigour of Order II Rule 2 of the Code of Civil Procedure cannot be ignored, if applicable, in the present case it is the same suit that started as O.S. No.59 of 1980 on the file of the District Munsif’s Court, Yellareddy and ended as O.S. No.6 of 1986 in the Subordinate Judge’s Court, Bodhan. The renumbering of the suit in District Munsif’s Court, Madnoor as O.S. No.3 of 1982, the remand of O.S. No.3 of 1982 by A.S. No.18 of 1984 after allowing an amendment in the plaint, the return of the plaint for presentation to proper Court due to consequential loss of pecuniary jurisdiction and the entertaining and disposal of the suit as O.S. No.6 of 1986 by the Subordinate Judge’s Court, Bodhan, do not, in any manner, make the suit originally instituted and the suit ultimately tried to be different suits. If in the same suit, the plaintiff was allowed to introduce a new cause of action and new reliefs on the ground of a subsequent event of dispossession, the same cannot be construed as a former suit giving way to a later suit. If so, Order II Rule 2 of the Code of Civil Procedure has no application and is not a bar to the amendment of the plaint introducing a new cause of action and new reliefs. Point Nos.2 and 3: The plaintiff as P.W.1 claimed that he worked as Mali Patel of Narangal for 12 years and also as Secretary of Co-operative Society of Narangal. He claimed to have worked as Patwari also and to have not taken any amount from his father for purchasing the suit properties, but admitted that he was not having any personal property prior to the purchase of the suit property. He did not specify the income he was getting as Patel or Patwari or Secretary of the Society and from what period prior to the purchase of the suit lands to indicate any surplus income after meeting the minimum needs of maintenance of himself and his family. While claiming to be in possession of Ac.21.00 including the suit lands, P.W.1 stated to be in possession of his share since the family partition 22 years earlier showing that about Ac.14.00 must have been the ancestral property that fell to his share and he also claimed that his father gave Ac.4.00 of land in S.No.108 and Ac.0.10 guntas in S.No.394/ about 6 years earlier to be enjoyed till his father’s death. While the agricultural lands of the family in his possession must be yielding reasonable income, the source of acquisition of suit properties being surplus from such income is not improbable even if P.W.1’s claim of separate possession of such family lands since 22 years earlier were to be considered true. If any such partition or division was subsequent to the purchase under Exs.A.1 and A.2, the source of acquisition under Exs.A.1 and A.2 can primarily be the income from family properties, P.W.1 admitting having no other personal property prior to such purchase and his income from his other occupations being not specified. P.W.2, who tried to claim that P.W.1 purchased the suit land after partition, was not present either at the time of partition or the purchase by the plaintiff. P.W.3 was unaware of the partition or the purchase and he does not know who paid the sale consideration. P.W.4, the attestor of Ex.A.1, does not know whether the plaintiff, defendants 1 and 2 and their father were living jointly or not by the date of Ex.A.1 and he was not present when the negotiations took place. He does not know who paid the remaining consideration before the date of Ex.A.1 or who held the negotiations in respect of S.No.155. P.W.5, the attestor of Ex.A.2 for S.No.164 also does not know whether the plaintiff, defendants 1 and 2 and their father were joint family members by the date of Ex.A.2. But he admitted that the father of the parties was alive. The claim of P.W.6 that Parbhat Rao was financially very weak and was not in a position to purchase any land at that time, was not even the case of the plaintiff and he was not present at the time of the negotiations. He admitted that when S.Nos.155 and 164 were sold to the plaintiff by the original owner, the plaintiff, defendants and their father were living jointly. He also admitted that the family had 28 or 29 acres of dry and wet lands, apart from Ac.10.00 of the father at Sonala by that time and he does not know who paid the sale consideration. He also admitted that before or at the time of purchase of the suit lands, the plaintiff had no separate property of his own. D.W.1, the senior paternal uncle of the parties, spoke about partition of the joint family properties between the parties and their father under Ex.B.1 and also about the earlier partition between him and Parbhat Rao. Though he spoke about the plaintiff having a lorry about 15/20 years back for 5/6 years, the plaintiff himself did not make any such specific claim. The 1st defendant as D.W.2 claimed the consideration for Exs.A.1 and A.2 to have been paid by his father, and denied the plaintiff owning a lorry, but admitted the plaintiff working as Cashier in Grain Merchant Office at Degloor. He claimed the purchase of the suit lands to be with joint family funds by which time the father and the sons were living jointly, giving the income to the father. While he admitted that P.W.1 worked as Patwari for 10 to 12 years, he denied purchase of the suit lands by the plaintiff with his own funds. D.W.4, the vendor of S.No.164 and father of the vendor of S.No.155, claimed the father of the parties to have purchased the suit lands and D.W.9, the scribe of Ex.A.1, claimed S.No.155 to have been purchased by Parbhat Rao. Thus, though the plaintiff worked as Patel, Patwari and Cashier of a Co-operative Society for considerable time, his having any surplus money earned out of such occupations by the time of acquisitions under Exs.A.1 and A.2, was not indicated in the evidence, while owning any lorry for any period and earning any money therefrom were not spoken to by the plaintiff himself. Admittedly, the plaintiff had no other properties by the time of the purchase under Exs.A.1 and A.2 except either the joint family properties under the father and the three sons under joint possession and enjoyment, if there was no partition by that time or any such joint family lands given to his share, if there was a partition prior to Exs.A.1 and A.2. The claims of P.W.1 in his evidence in 1982 about the partition 22 years earlier, may take it to about 1960 and it is also not evident from the evidence that by the time of purchases under Exs.A.1 and A.2 in 1963 and 1967, the plaintiff would have earned such surplus income as to make the purchases from his share of lands. There cannot be any serious controversy about the existence of sufficient joint family nucleus with the income from which the properties would have been acquired, while any exclusive and separate funds of the plaintiff providing the source of consideration under Exs.A.1 and A.2 are, thus, doubtful. The plaintiff as P.W.1 claimed that he made the purchases under Exs.A.1 and A.2 with his own income and did not take any amount from his father for purchasing the suit properties. Though P.W.2 tried to claim his presence at the time of purchase 10 to 15 years earlier, he later admitted that he came to know about the purchase only from P.W.1. P.W.3 does not know who paid the sale consideration for the purchase and P.W.4, the attestor of Ex.A.1 for purchase of the land in S.No.155, admitted D.W.9 to be the scribe of Ex.A.1 and claimed that the plaintiff paid Rs.900/- and