THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR. SECOND APPEAL No. 665 of 1999. JUDGEMENT This second appeal is directed against the judgement and decree dt. 21.6.1999 in A.S.No. 116 of 1993 on the file of the I Additional District Judge, Guntur whereby the learned District Judge partly allowed the appeal filed against the judgement and decreed in O.S.No. 62 of 1989 on the file of the I Additional Junior Civil Judge, Guntur. Facts in brief are as follows: The 1st respondent/plaintiff filed the above suit for declaration and recovery possession of suit schedule property based on Ex:A.1 dt. 1.12.1972, an unregistered sale deed. The plaintiff states that he purchased the suit schedule property for a sale consideration of Rs.100/- and that he has been in possession and enjoyment of the same from the date of Ex:A.1 and to protect the same, he employed defendant No.1 and allowed him to raise a hut therein. On demand by the plaintiff, the 1st defendant (Appellant herein) vacated the suit schedule property in June, 1987 but later on the instigation of defendants 2 and 3 who are his neighbours, he occupied the suit schedule property forcibly under the grab of injunction obtained in O.S.No. 1412 of 1987 filed by him before the 1st Additional Junior Civil Judge, Guntur. In the said suit, the 1st defendant prayed for the relief of perpetual injunction on the basis of possession and as such the 1st respondent/plaintiff was constrained to file the present suit for declaration of title and recovery of possession. The 1st defendant filed his written statement stating that his father was in possession of the property for over 40 years and had constructed a thatched house and later a pucca house was constructed by him and on the basis of his long standing possession, he cannot be evicted from the suit property. On the basis of aforesaid pleadings, the trial court framed the following issues: i) Whether the plaintiff is entitled to the declaration of his title to suit property. ii) Whether the plaintiff is entitled to consequential possession of the suit property. Before the trial court, the plaintiff himself was examined as Pw.1 and examined Pw.2 and got marked Exs:A.1 and A.2. The 1st defendant himself was examined as DW.1 and got marked Exs:B.1 to B.3. On a consideration of the evidence on record, the trial court came to the conclusion that Ex:A.1 sale deed being an unregistered sale deed, it cannot be relied on for the purpose of establishing title and to the extent of possession, the trial court held that the plaintiff failed to prove his possession over the suit property prior to filing of the suit and consequently dismissed the suit. On appeal by the plaintiff, the lower appellate court has agreed with the trial court to the extent that the plaintiff is not entitled for declaration on the basis of unregistered sale deed, however with regard to the relief of possession, the same was granted by the lower appellate court holding that the documents produced by the 1st defendant Ex:B.1 and B.2 do not relate to the suit property and Ex:B.3 was not proved and accordingly allowed the appeal in part to the extent of granting the relief of possession. Hence the present second appeal. Basing on the substantial questions of law framed in para 15 (a) to (f) in the grounds of appeal, the present second appeal was admitted by this Court. The contention of the learned Counsel for the appellant is that when the plaintiff is not entitled for declaration of title, consequential relief of possession ought to have been denied by the lower appellate court. He also contended that the plaintiff has failed to prove continuous possession for 12 years prior to the filing of the suit and that Ex:B.1 to B.3 substantiate the possession of 1st defendant over the suit property for possession. The learned Counsel for the 1st respondent/plaintiff on the other hand submits that irrespective of finding on the declaration of title, since the plaintiff proved prior possession over the suit schedule property and in the absence of any proof of 1st defendant’s title over the suit schedule property, the relief for possession was rightly granted by the lower appellate court. It is also contended that the written statement of the defendant No.1 clearly shows that he set up occupation without any entitlement and since the plaintiff is having better title, he was granted possession. On a perusal of the record, it is noticed that the suit itself was filed on 15.12.1998 whereas the documents produced by the appellant/1st defendant are upto the year 1986 namely Exs:B.1 and B.2 and they do not relate to the suit schedule property as the house number does not tally with the house number of the suit property. Further, the case of the 1st defendant was that the suit site was a Government Poramboke land and the same was granted to his father. The assertion of the 1st defendant remained unsupported by any documentary evidence. The plaintiff undoubtedly held better title based on Ex:A.1 whereas no title is pleaded by the 1st defendant in his written statement and even he did not plead adverse possession. Therefore it establishes that the defendant merely claimed possession on the basis of being an occupier of the suit property. In the absence of any better title established by the 1st defendant over the title of the plaintiff under Ex:A.1, prior possession was sufficient to decree the suit for possession. It is also on record that the suit O.S.No. 1412 of 1987 filed by the 1st defendant for perpetual injunction against the plaintiff was admittedly dismissed for default. Under Articles 64 and 65 of the Limitation Act, 1963, it is not necessary for the plaintiff to establish that he was in possession for 12 years prior to the suit in order to seek the relief for possession and on the contrary it is for the defendant to show that he has been in possession adverse to that of the plaintiff for over statutory period. Since that is also not pleaded by the defendant, the lower appellate court was fully justified in decreeing plaintiff’s claim to the extent of possession. The substantial questions of law are therefore liable to be answered in favour of the 1st respondent/plaintiff and against the defendant No.1. The second appeal fails and the same is dismissed. However, there shall be no order as to costs. _____________________________ VILAS V. AFZULPURKAR, J 29.6.2011. KRB. THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR. SECOND APPEAL No. 665 of 1999. JUDGEMENT Dt.29.6.2011.