HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.669 OF 1999 Dated 2-11-2010 Between: Dupati Subramanyam and another. …Appellants. And: Gummala Machi Reddy. …Respondent. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.669 OF 1999 JUDGMENT: This appeal is preferred by the defendants aggrieved by the judgment and decree of the lower appellate Court which has reversed the judgment and decree of the trial Court. The parties in this appeal are referred to as they are arrayed in the suit namely appellants herein are defendants 1 and 2 whereas the respondent herein is the plaintiff. Facts of the case are as follows: Plaintiff admittedly was owner of an extent of land admeasuring Ac.0.65 cents in S.No.605/3 situated at Chinna Chowk Village, Cuddapah Mandal and District. He filed the suit for declaration of his title and for grant of permanent injunction retraining the defendants from interfering with the possession of the plaintiff. The plaint allegations are that the plaintiff helped the defendants in real estate business and defendants were benefited. The plaintiff borrowed a sum of Rs.1820/- from the defendants under three separate promotes executed in favour of the mother of the 1st defendant. The plaintiff alleges that though he discharged the promotes partly, he could not discharge the entire debt and as security for the balance of the debt, he executed registered sale deed dated 29-6-1966 nominally in favor of D.2. The said sale deed is marked as Ex.B.4 which shows a consideration of Rs.500/-. It is also alleged that the defendant No.2 executed a letter in favour of the plaintiff agreeing to reconveying the suit property to the plaintiff. Plaintiff alleges that subsequently, he discharged the debt but did not demand for reconveyance deed since the plaintiff continued to remain in possession and enjoyment of the suit land without any objection. It is also alleged that the revenue authorities also recognized the plaintiff’s possession by issuing a pattadar pass book. Plaintiff claims that he also perfected his title by adverse possession. Defendant inter alia contended by filing written statement that the suit land is originally belonging to the plaintiff, his father and his brother as ancestral property and all three of them have executed the sale deed Ex.B.4. It is also stated that defendant No.2 executed a reconveyance agreement to reconvey suit property provided the plaintiff repays the debt within two years. It is alleged that the plaintiff along with his brother and father filed O.S.No.669 of 1969 before the Principal District Munsif Court, Cuddapah for specific performance of agreement of reconveyance with regard to the suit site but the said suit was dismissed and attained finality. It is also alleged that the plaintiff never pleaded in that suit that he was in possession of the suit property nor that Ex.B.4 sale deed is nominal as pleaded in the present suit. It was further alleged that the mother of the defendant No.1 filed a suit O.S.No.554 of 1972 before the Principal District Munsif Court, Cuddapah for recovery of money which was decreed and in execution thereof, E.P.No.282/78 was filed. In that E.P., the present plaintiff, who was judgment debtor, pleaded that he is a small farmer and he has filed a pass book marked as Ex.A.1 in the said E.P. showing that plaintiff owns only Ac.2.11 cents of land and on that basis, the executing Court found that he is a small farmer. The defendants therefore asserts that present suit schedule land was not shown by the plaintiff as belonging to plaintiff and therefore, the defendants claim that the pass book filed in the present suit by plaintiff is created. On the above pleadings, the trial Court framed two issues. 1. Whether the suit of the plaintiff is barred by the principles of resjudicata? 2. Whether the plaintiff is entitled for the declaration of his title over the suit property and consequential relief of permanent injunction against defendants and their men as prayed for? 3. To what relief? The plaintiff examined himself as P.W.1 and two other witnesses as P.Ws.2 and 3 and marked Exs.A.1 to A.7 which consists of Pattadar Pass Book Ex.A.1, Cist Receipts Exs.A.2 to A.6 and certified copy of judgment in C.C.No.1 of 1986 Ex.A.7, which arose out of defendants allegations that plaintiff has trespassed into their land which is suit schedule land herein. Defendants examined themselves as D.Ws.1 and 2 and a witness as D.W.3 and marked Exs.B.1 to B.13 which comprises of Ex.B.1, a certificate issued by the Registering Officer in favour of the defendants for the suit land as belonging to them, while Ex.B.2 is the notice for payment of land revenue for Fasli 1373 to 1379, Ex.B.3 is the cist receipts, Ex.B.4 sale deed is already referred to. Exs.B.5 and 6 are certified copies of decree and orders in E.P.No.282 of 1978 referred to above, Ex.B.7 is pattadar pass book issued in favour of defendants while Ex.B.8 is the cist receipts, Ex.B.9 is the Encumberance Certificate, Exs.B.10 and 11 are pattadar pass books and pass book issued by the Co-operative society respectively and Exs.B.12 and B.13 are the voters list for the year 1989 and 1993 produced to show the age of the plaintiff. On consideration of the evidence, the trial Court came to a conclusion that plaintiff has failed to establish possession as no documents including 10 (1) Account are filed. The trial Court also found that plaintiff has admittedly instituted suit for specific performance of reconveyance agreement and that as per the recitals in Ex.B.4 registered sale deed, possession of the suit land was delivered to the defendants as on the date of sale. Trial Court therefore disbelieved the plaintiff’s contention of acquiring title by adverse possession and consequently dismissed the suit. Lower appellate Court however has reversed the said decree and a reading of the lower appellate Court would show that it has drawn several assumptions and has found that notwithstanding the registered sale deed Ex.B.4, plaintiff continued in possession and it is the defendants who have failed to establish that they are in possession of the property. Consequently, the appellate Court allowed the appeal and decreed the plaintiff’s suit. Hence the Second Appeal by the defendants. By orders of this Court dated 13-8-1999, this appeal was admitted on substantial questions of law as framed in ground Nos.4 to 7 of the Memorandum of grounds. For the sake of convenience, they are extracted hereunder. “4. The lower appellate Court ought to have seen that P.W.1 in his evidence admitted that possession of suit schedule land was delivered to defendants (appellants herein). 5. The appellate Court ought to have seen that the defendants are in possession of suit schedule land as admitted by P.W.1 in his evidence and also as perEx.B.7, Pattedar Pass Book issued in favour of appellant (defendants in the suit) which was never denied by the respondent herein. In view of the above facts the claim of adverse possession by the respondent herein has fallen to the ground as not proved and trial Court has rightly dismissed the suit filed by the respondent herein. 6. The lower appellate court ought to have seen that the evidence let in by the respondent herein is inconsistent with his pleadings and documentary evidence and his claim of adverse possession over the suit schedule land is totally false and untenable as such the trial Court has rightly held that the respondent herein is not entitled for declaration of title over the suit property and also perpetual injunction relief and rightly dismissed the suit. 7. The lower appellate Court ought to have seen that the suit O.S.669/69 filed by the respondent herein, his father and his brother, for specific performance agreement (reconveyance) in respect of very same suit schedule land was dismissed and respondent has not taken any steps to restore the said suit to file and as such the present suit O.S.37/1988 under appeal is hit by resjudicata. Further more the appellate court ought to have seen that even in the above suit O.S.669/69, the respondent has not pleaded about their alleged adverse possession over the suit schedule land.” Heard learned counsel for the appellants and learned counsel for respondent. While the learned counsel for the appellants has elaborately submitted about the failure of the plaintiff to make any claim of reconveyance agreement in view of the dismissal of the suit O.S.No.669 of 1969 for the said relief, the counsel also places a reliance on stand taken by the very same plaintiff in the Execution Petition No.282 of 1978 evidenced by Exs.B.5 and B.6 claiming that he was a small farmer and he did not claim the suit land as belonging to him. Learned counsel therefore submits that there is no evidence in respect of plaintiff’s case of possession much less adverse possession and he points out that plaintiff is a Village Administrative Officer and previously he was Village Munsif and using the said official position, he has tampered with Ex.A.1 pattadar pass book and inserted these suit survey numbers as last entered. He submits that insertion of the said entry is evident by the difference in hand writing of the said entry with other entries in Ex.A.1. He therefore submits that the lower appellate Court committed serious errors in appreciation of evidence which warrants interference by this Court under Section 100 C.P.C. Sri R.Subba Rao, learned counsel for the respondent has very strenuously contended that entire evidence of P.W.1 was misread by the trial Court and though there are no admissions as such it has proceeded as if the plaintiff admitted delivery of possession to the defendants under Ex.B.4. Learned counsel has read out the entire evidence of P.W.1 to substantiate that if read in entirety, there are no admissions of plaintiff. Learned counsel also points out that when there is no evidence on the part of the defendants and whatever documents defendants have produced are long, subsequent to the suit, establishes that those documents ought not to be taken into consideration. He also relied upon pattadar pass book produced by the defendants and marked as Exs.B.7 and B.10 which are of the year 1995 i.e., 7 years after the suit. Learned counsel therefore submits that irrespective of the plaintiffs claim for reconveyance, the appellate court has rightly found that plaintiff is in possession and the said possession fortified into adverse possession as the present suit was filed almost after 18 years of Ex.B.4. He would therefore submit that no case for interference is made out. Keeping in view of the substantial questions of law framed in this appeal, I have examined the plea of the plaintiff as to whether Ex.B.4 sale deed can be said to be nominal sale deed. The contention of the plaintiff is based upon the fact that reconveyance agreement was executed by defendant No.2 agreeing to reconveying the property sold to her under Ex.B.4. On the face of it, I am unable to accept the said contention as Ex.B.4 sale deed is dated 29-6-1966, and the alleged reconveyance agreement is dated 8-11-1967. Firstly, no agreement has been produced by the plaintiff and secondly, even according to the plaintiff, the sale deed and conveyance agreement are not contemporaneous documents. For considering the plea of the plaintiff that Ex.B.4 is a nominal sale deed, the agreement of reconveyance ought to be contemporaneous with the sale deed. It is therefore evident that the plea of the plaintiff that the registered sale deed has to be treated as a nominal one coupled with reconveyance agreement, cannot be accepted. Secondly, the recital as to delivery of possession in Ex.B.4 is admitted by P.W.1 and it has to be presumed that possession follows title. This is a case where the plaintiff is alleging to be in possession and claiming adverse possession. The burden of establishing possession and time from which it became adverse to the defendants, was entirely for the plaintiff to establish. The evidence of plaintiff however does not establish either of the two in as much as the basic document namely 10 (1) account were not produced by the plaintiff to show his possession. Further his evidence as P.W.1 shows the recitals in the sale deed with respect to delivery of possession as correct and he proceeds to state that there is no need to file any document since the property continues to be in his possession. It is to be remembered that plaintiff was an Ex.Village Munsif and at the time of suit and deposition as P.W.1, he was working as Village Administrative Officer and as such is well versed with maintenance of revenue records and their importance with respect to showing the possession of a cultivator. He admits in the evidence that along with D.2, his name is also appearing in the revenue records relating to the suit land. It is therefore evident that his name is not exclusively shown in the revenue record and same may be appearing as plaintiff was the admitted previous owner of the suit land. He further pleaded ignorance whether D.2 is paying the cist, and as Village Administrative Officer, he would definitely know about it. On the contrary, he should have established that he is in possession and paying the cist. He further admits that suit Survey Number relates to Patta Number 185 for which the defendant produced the revenue record. But the plaintiff has not produced any document except Ex.A.1 pattadar pass book and cist receipts Exs.A.2 to A.6. While Ex.A.1 pattadar pass book which impressed the lower appellate Court shows that different patta number other than 185 so far as suit lands are concerned and it shows patta number 763. The plea of defendants about insertion of entry of suit land in the said pattadar pass book appears probable in view of the fact that under patta No.185, five survey numbers of different extents are mentioned and perhaps the insertion of suit land was possible only below survey No.556 relating to patta No.763 and not in between the survey numbers relating to patta Nos.185 and 763. A specific question was put to him whether he has filed 10 (1) account and adangal for which he replied in the negative not only in this suit but also in his earlier suit for specific performance of reconveying agreement as well. The lower appellate Court however has accepted the case of the plaintiff but on the basis of several assumptions, some of which are extracted hereunder: ..………‘But document show that plaintiff has executed sale deed under compelling circumstances that is to say vendors i.e., defendants did not believe the representation that he will be discharging pronote debt in due course and insisted for sale of land in discharge of pronote debts and that the plaintiff who has no chance or possibility of discharging the debts, must have agreed to execute the sale deed.’ ..……… ..………‘On consideration of such request of plaintiff, defendants must have agreed to reconvey the land giving back the land to the plaintiff.’..……… ..………‘On failure on the part of defendants would show that defendants must be aware of the fact of granting pattadar pass books to the plaintiff in respect of the suit land.’..……… ..………‘Circumstances reveal in the case and evidence of possession of land revealed in the suit clearly establishes that plaintiff must have been in possession of the suit land.’..……… ..………‘Therefore it is evident that the delivery of land must not have been effected under Ex.B.4 sale deed..………’ ..………‘Therefore failure on the part of defendants in not taking steps for recovery of possession of the suit land would show that the plaintiff must have discharged the pronote debt.’ ..……… All the extracts above, the word ‘must have’ was underlined by me to highlight the assumptions drawn by the lower appellate Court while reaching the finding in favour of the plaintiff. All these assumptions, in my view, have no basis as there is no evidence in respect of any of the assumptions. More importantly, lower appellate court placed the burden of proof on the defendants by finding that they have not produced the plaint of the plaintiff in O.S.No.669 of 1969 filed for specific performance of reconveyance agreement to establish that he was not in possession. The burden obviously must be placed on the plaintiff. Further, the defendants have filed and marked Exs.B.5 and 6 which are certified copies of order and decree in E.P.No.282 of 1978 which arose out of the suit for recovery of money filed by D.1’s mother against the plaintiff. Plaintiff herein is the judgment debtor in the said application. It was his specific case that he is a small farmer and he had only an extent of Ac.1.60 cents of wet land and Ac.2.11 cents of dry land. The suit schedule land if really remained with the plaintiff in respect of Ex.B.4 sale deed by 29-6-1966 would have certainly been shown by the plaintiff in the said E.P. But his stand in the said E.P. and the present suit is clearly contradictory. The finding of the lower appellate Court on the possession of the plaintiff is therefore vitiated and contrary to the evidence on record. The plea of adverse possession raised by the plaintiff requiring even stricter proof as plaintiff had to establish the starting point of commencement of adverse possession. I had asked specific questions to the learned counsel for the respondent and along with him, I have examined the evidence on record, but I do not find any material in support of the said plea. When and how this alleged possession of the plaintiff became adverse, even if possession of the plaintiff is assumed, has not been substantiated by evidence on record. The Judgment of the lower appellate Court is therefore clearly unsustainable and suffers from conjectures and surmises as well as misappreciation of evidence and as such is perverse and liable to be set aside. The substantial questions of law framed under ground Nos.6 and 7 therefore deserve to be answered in favour of the appellants/defendants and against the respondent/plaintiff. The appeal accordingly succeeds. The judgment of the lower appellate Court is set aside and that of the trial Court is restored. The suit of the plaintiff according shall stand dismissed with costs. _____________________________________ Justice VILAS V. AFZULPURKAR Dated 2-11-2010. Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.669 OF 1999 Dated 2-11-2010