AI Structured Summary
Not yet generated for this judgment
Judgment
P.S. Narayana, J.—This second appeal involves the following substantial questions of law:
(1) Whether the decree and judgment of the appellate court are vitiated for the reason that the appellate court had not considered the oral and documentary evidence adduced by the defendants in a proper perspective?
(2) Whether in the facts and circumstances of the case, the third defendant perfected its title by adverse possession?
Sri T.S. Anand, the learned Counsel representing the appellant, the third defendant had taken this Court through the respective pleadings of the parties and also the evidence available on record and would maintain that the appellate court had not appreciated the evidence available on record in proper perspective. The learned Counsel also would submit that in the light of the clear stand taken by the first and second defendant in the suit for sufficiently a long time the respondent-plaintiff had slept over the matter and ultimately for the reasons best known to her instituted the present suit. The learned Counsel also had pointed out Ex. A1 the registration extract of the sale deed dated 26-8-1948, Ex. A2 is the extract of the registered sale deed dated 3-3-1969 and Ex. A3 the registered sale deed dated 12-2-1979. Incidentally, the learned Counsel also had pointed out to Ex. B1 the registered sale deed, dated 3-3-1969, the registration extract of which was marked as Ex. A2 and also Exs. B2, B3, B4, B5 and B6. The learned Counsel would contend that by long continuous possession the doctrine of tacking to be applied in the facts of the present case and hence the rights if any of the plaintiff being hopelessly barred by limitation at this point of time she is not entitled to institute the present suit and hence the relief granted in her favour cannot be sustained. The learned Counsel pointed to the relevant portions of the findings in this regard and would maintain that in a matter of this nature the conduct of the parties may have to be appreciated inasmuch as the conduct of the plaintiff not being bonafide, the findings recorded by the courts below to be disturbed in the present second appeal. The counsel also placed strong reliance on certain decisions to substantiate his contentions relating to the plea of adverse possession and also the doctrine of tacking.
Per Contra, Sri VLNGK. Murthy, the learned Counsel representing the respondent-plaintiff would maintain that the party had been successful in the court of first instance and also the appellate court and inasmuch as concurrent findings had been recorded in a second appeal this Court to be slow in disturbing such findings. The learned Counsel would also submit that even in the light of the specific stand taken by both first and second defendant the question of plea of adverse possession may not be applicable for the reason that specific stand had been taken that they were not co-owners at any point of time but nominally the name of the plaintiff''s father Madura Venkatareddi Naidu also had been shown in the sale deed. If this stand to be accepted the question of ouster, the question of adverse possession and also the question of applying doctrine of tacking may not arise at all. While further elaborating his submissions, the learned Counsel pointed out that though initially sale transaction was of the year 1969 till 1979 nothing had been done and after the purchase from Ramgopal Lunani when the employees of the Co-operative House Building Society, Kakinada made serious attempts to raise certain constructions the respondent-plaintiff was lef with no other option except to institute the suit, OS. No. 79 of 1980 on the file of First Additional Munsif Magistrate, Kakinada immediately within a reasonable time. Even if the date of Ex. A2, 3-3- 1969 to be taken into consideration the suit was instituted within the period of limitation. The learned Counsel also pointed to the oral evidence of P.W. 1 and would comment that this unfortunate daughter of the other co-sharer had been demanding for amicable partition but for reasons best known to the other sharer, he was not inclined and had proceeded unilaterally to execute a sale deed in the year 1969, the original of Ex. A2 marked as Ex. B1 and further alienation was made on 12-2-1979, the registration copy of which had been marked as Ex. A3. Hence, viewed from any angle the plea of adverse possession cannot be sustained. Even other wise, the specific stand taken that nominally the name of the father of the plaintiff had been shown in the document in question when it had been specifically negatived by both the courts below and a finding had been recorded relating to the fact that both were co-owners, it being predominantly a finding of fact, the same cannot be disturbed in a second appeal. The learned Counsel also pointed out to relevant portions of the respective pleadings in this regard and further specifically pointed out to grounds 4 and 5 even in the grounds of the first appeal filed by the self-same appellant, originally numbered as AS. No. 58 of 1987 on the file of the III Additional District Judge and subsequently renumbered as AS. No. 67 of 1987. Hence, the counsel would conclude that at any stretch of imagination, it cannot be said that the appellant-third defendant in any way acted bonafide and hence the second appeal deserves dismissal at the hands of this Court.
Heard the counsel on record.
Perused the oral and documentary evidence available on record and the findings recorded by the Court of first instance and also the findings recorded by the appellate court as well. The parties hereinafter for the purpose of convenience would be referred to as shown in OS. No. 798 of 1980 on the file of the Court of First Additional District Munsif, Kakinada. The plaintiff instituted the said suit for partition and separate possession of her half share in the plaint schedule property. The first defendant alleged co-owner and the second defendant the subsequent purchaser from him. Defendants 1 and 2 died and the legal representatives were brought on record.
The plaintiff pleaded in the plaint as hereunder:
The first defendant and one Madura Venkata Redi Naidu i.e., the father of the plaintiff jointly purchased two items of Ac : 0-80 cents and Ac : 0-35 cents totaling Ac : 1-15 cents of Zerayati meraka Garuvu land in Zerayati Patta No. 45, Survey No. 231 of Suryaraopeta village in the erstwhile Pithapuram Estate of Kakinada taluk in Kakinada Municipal limits under a registered sale deed dated 26-8-1948 executed by Sathiraju Sarabhavya and others and had been jointly enjoying the same with equal rights of co-owners having purchased with money advanced equally by the first defendant and said Sri Venkatareddi Naidu. On the death of Venkatareddi Naidu intestate on 15-3-1950 all his properties including his undivided half share in the said land devolved on his only heir and his widow mother and ever since the plaintiff has been in joint possession and enjoyment of the said land. The plaintiff''s mother became full owner under the Hindu Succession Act, 1956. The plaintiff''s mother and after her death the plaintiff through her husband who has been looking after her affairs had been asking the first defendant since about 1960 for partition and separate possession of her half share in the said property but the first defendant had been promising to do but postponing. As the plaintiff''s husband used to be engaged in official duty, the plaintiff could not press for immediate partition. While so, the plaintiff through her husband has been pressing the first defendant for partition and separate possession of her half share since about six months but the first defendant has been evading. The plaintiff came to know only recently that all the defendants colluding together and brought into existence some fraudulent documents with malafide intention of having wrongful gain for themselves and of causing wrongful loss to the plaintiff. The first defendant appears to have executed a sale deed for the entire plaint schedule property illegally in favour of the third defendant. Defendants 2 and 3 are the bonafide purchasers and they had sufficient notice of the rights of the plaintiff''s mother and after her death, the plaintiff to the half of the plaint schedule property. The said allegations are illegal, void and collusive and fraudulent and do not bind on the plaintiff. The plaintiff did not know about the said fraudulent alienations till February 1980. The plaintiff got issued registered notices dated 31-3-1980 to the defendants demanding partition and separate possession of her half share in the plaint schedule property.
Defendants 1 and 2 received the said notices on 2-4-1980. The third defendant''s notice was returned, as the name given was not correct. Afterwards notice was again sent to the third defendant. The first defendant died during the pendency of the suit on 8-6-1984 leaving behind him five sons and one daughter, the defendants 4 to 9 are added as legal representatives. The second defendant died during the pendency of the suit on 24-7-1984 leaving behind him three sons and two daughters and they are added as defendants 10 to 14. The plaintiff filed this suit to pas a decree for partition of the plaint schedule property into two equal shares by metes and bounds according to good and bad quality for separate possession of one such share to him after ejecting the defendants therefrom.
The first defendant filed written statement denying the joint purchase of the property. It was also pleaded that the allegation that the first defendant and the plaintiff''s father were jointly enjoying equal rights as co-owners and that the moneys were advanced by them equally by the first defendant and late M. Venkatreddi Naidu are all false and hereby denied. The allegation that the plaintiff after her father''s death has been enjoying along with the first defendant as a co-owner is another blatant lie and is hereby denied. The allegation that the plaintiff has been demanding partition through her husband since 1960 and that the defendant has been promising to do so but is postponing another falsehood and is hereby denied. The allegation that all the defendants colluded together and brought into existence some fraudulent documents and that the first defendant sold away the whole schedule property illegally in favour of the second defendant and in turn the second defendant sold the same to the third defendant are all false and hereby denied. The allegation that the defendants 2 and 3 are not bonafide purchasers and that they had sufficient notice of the rights of the plaintiff''s half share is an utter falsehood and hereby denied.
The plaintiff has no right whatsoever to file this suit and there is no cause of action to this suit. The father of the plaintiff Venkatreddi Naidu though joined in the beginning as a purchaser never paid his share of purchase money to the vendors under document dated 26-8-1948 and hence this defendant No. 1 himself paid the whole consideration to the vendors. Since then late M. Venkatreddi Naidu did not pay his shasre of the purchase money and requested the first defendant to enjoy the whole schedule property. Hence since 26-8-1948 from the date of purchase the first defendant had been enjoying the schedule property completely in his own right to the exclusion of all others, more so, to the exclusion of Madura Venkatreddi Naidu. Hence, the first defendant perfected the title by adverse possession and the plaintiff has no right whatsoever to file the suit.
The plaintiff never demanded partition of suit schedule property either in 1960 or at any time. Under the circumstances, the first defendant and second defendant are bonafide purchasers for consideration and they have perfected their title by themselves and through their predecessors-in-title. All the allegations that were not specifically traversed herein are hereby denied and that the plaintiff himself has to prove strictly all of them.
The second defendant separately filed written statement with the following averments, virtually taking the self-same stand taken by the first defendant. It was pleaded that the first defendant and the plaintiff''s father were jointly enjoying equal rights as co-owners and that the moneys were advanced by them equally by the first defendant and late Madura Venkatareddi Naidu are all false and are hereby denied. The allegation that the plaintiff after her father''s death had been enjoying along with first defendant as a co-owner is neither blatant lie and is hereby denied. The plaintiff has no right whatsoever to file the suit and there is no cause of action for the suit. The late Madura Venkatreddi Naidu never enjoyed the property as co-owner at any time even 1948 onwards. The first defendant himself had been enjoying the property exclusively in his own right to the exclusion of all the others, more so, to the late Madura Venkatareddi Naidu, the father of the plaintiff. The first defendant perfected his title by adverse possession and enjoyment and then in turn sold the said property for consideration on 3-3-1969 under registered sale deed. The second after enjoying property more than ten years again sold the schedule property to the third defendant under a registered sale deed for consideration. Under the above circumstances, the second defendant and third defendant are bonafide purchasers for valid consideration of the property and they have perfected their title by themselves and through their predecessors-in-title. The plaintiff is not the legal representative of late Madura Venkatareddi Naidu, on the date of death of Madura Venkatareddi Naidu. In 1950, i.e., when late Madura Venkatareddi Naidu died intestate on 15-3-1950 as per the allegations of the plaintiff, the plaintiff is not at all the legal heir to late Madura Venkatareddi Naidu. The plaintiff has no right to file the suit. The plaintiff herself must prove that she is the legal representative of late Venkatareddi Naidu. The suit is bad for mis-joinder or non-joinder of necessary parties and she has no right to file the suit at all. The suit is time barred, as she never had any constructive possession as alleged in the plaint. Late Madura Venkatareddi Naidu and the first defendant never enjoyed as owner right from the date of purchase and the said allegation, the plaintiff must prove strictly that the defendant is denying the same. The plaintiff has no cause of action to file the suit against the defendant and the cause of action mention in the plaint is not at all correct.
The valuation of the suit and the court fee paid are not correct. The other allegations, which are not specifically traversed herein, are hereby denied.
The third defendant filed a memo of adoption, adopting the written statement of the second defendant.
Before the Court of first instance, the following issues were framed:
(1) Whether the plaintiff is entitled to a decree for partition as prayed for?
(2) Whether the plaintiff is in possession of mesne profits as prayed for?
(3) To what relief?
Later on D4 to D9 are added as parties as [per orders in IA. No. 875 of 1984 as legal representatives of D1. D10 to D14 are added as per orders in IA. No. 674 of 1981 as legal representatives of D2. They were set exparte. The exparte order passed against them was set aside and they filed the written statements. D8 filed memo adopting the written statement filed by Defendant No. 1. D10, D11 and D12 filed memo adopting the written statement filed by D2. The following additional issues were framed:
(4) Whether the defendant have perfected their title by adverse possession?
(5) Whether the suit is barred by limitation?
On behalf of the plaintiff, P.W. 1 was examined, Exs. A1 to A11 were marked.
On behalf of defendants DWs. 1 to 3 were examined, Exs. B1 to B7 were marked.
The Court of first instance recorded reasons in detail and came to the conclusion that the plea of adverse possession and also the plea that the father of the plaintiff had not paid any consideration in relation to the sale transaction Ex. A1 had not been established. It was further held that the plaintiff''s father and the first defendant to be taken as co-owners who had jointly purchased this property in question and in view of the same, the plaintiff is entitled to her half-share as prayed for. Aggrieved by the same, the matter was carried by way of appeal, AS. No. 58 of 1987 which was renumbered as AS. No. 67 of 1987 and the learned Second Additional Subordinate Judge, Kakinada framed the point for consideration at para No. 13, proceeded to discuss the evidence available on record at para nos.14 and 15 and ultimately dismissed the appeal with costs throughout, confirming the judgment and decree of the Court of first instance. The only point which was considered by the appellate court is as hereunder:
Whether the appellants have perfected their title by way of adverse possession?
P.W. 1 deposed in detail supporting the averments made by her in her pleading. P.W. 1 deposed about Ex. A1 the registration extract of the sale deed dated 28-6-1948 whereunder both the first defendant and her deceased father jointly purchased the property. It is pertinent to note that the joint purchase of the property is not in serious controversy but the stand taken by the first defendant is that nominally plaintiff''s father''s name also was included and hence inasmuch as he was the exclusive owner of the property he had held of the property as of his own. Ex. A2 is the registration extract of the sale deed executed by the first defendant in favour of the second defendant dated 3-3-1969. The said second defendant in turn executed the sale deed dated 12-12-1979 the registration copy was marked as Ex. A3 in favour of the third defendant. The said third defendant is the present appellant. Ex. A4 is the notice dated 31-3-1980, Exs. A5, A6 and A7 are the postal acknowledgements. Ex. A8 is the registration extract of the sale deed dated 13-4-1959. Ex. A9 is the revenue receipt. Ex. A10 SSLC register of P.W. 1, Ex. A11 death extract of M. Appalanarasamma. As against this evidence of P.W. 1, there is evidence of DW. 1, DW. 2, who had supported the respective stand taken in the pleadings of the first and second defendants. Apart from this evidence, the evidence of DW. 3 is also available on record. Ex. B1 is the original of Ex. A2. Exs. B2 to B5 are the tax-receipts. Ex. B6 is the agreement of sale executed by Ramgopal Lunani and others in favour of Co-operative House Building Society, Kakinada, in question. Ex. B7 Bundle of encumbrance certificates. DW. 3 worked as Secretary of the society from the beginning till 1982. This witness deposed in detail all the facts and had taken the same stand that the father of the plaintiff has nothing to do with the property. As per the evidence of this witness, it is clear that the original sale transaction, the sale deed dated 26-8-1948 standing in the names of both the father of the plaintiff and also the first defendant had been within the knowledge of the D3 - society.
The main contention advanced by the counsel representing the appellant is that it is a case of ouster or a clear case where the doctrine of tacking to be applied inasmuch as from 1948 onwards never the other alleged co-sharer, the father of the plaintiff or the plaintiff had exercised any rights of ownership and hence the suit is hopelessly barred by limitation and the plaintiff is not entitled to any of the reliefs as prayed for. The learned Counsel placed strong reliance on the decision of this Court in Vanga Ramanujayya v. Samanthula Bangaramma (died) and Ors. 1987 (1) APLJ 158 wherein the learned Judge observed at paras 11, 12 and 13 as hereunder:
IN Halsbury''s Laws of England, Vol. 19 at page 157, it is stated a person who is in possession of land without title has, while he continues in possession and before the statutory period has elapsed a transmissible succeeded in possession by one claiming through him, who holds till the expiration of the statutory period, such a successor has then as good right to the possession as if he himself had occupied for the whole period, Same is the view in Ram Pirari v. Budh Sen. ILR 43 (11) All 164 (DB).
Thus, I conclude without hesitation, that if a person in possession of a property without title is succeeded by another person, the latter derives right and interest as successor of the former. Such right or interest during the course of its acquisition by adverse possession is heritable, divisible or transmissible. This derivative right and interest can be tacked on to their possession so as to complete the residue period of 12 years, which has otherwise become short of, independently, to the possession as if he himself/herself had occupied for the whole period. Thereby the successor perfects his title to the property by adverse possession. The golden link that runs through is succession.
This doctrine is unavailable to two independent trespassers between whom jural relationship is snapped off.
The respondents in SA. No. 770/81 are the successors in interest and therefore the prescriptive title acquired by the father of the first respondent is heritable. Equally they are also entitled to tack on their possession for computation of 12 years period of their possession. Accordingly, they have perfected their title by adverse possession. Similarly, in OS. No. 46/68 (SA. No. 771/81) DW. 3 acquired heritable right from her father. It is divisible and alienable. Thereby the respondents in SA.771/81 too acquired title.
Accordingly, I hold that the respondents have perfected their title by adverse possession.
The learned Counsel also placed strong reliance on the decision of the Division Bench of this Court in Tavidisetty Venkateswara Rao Vs. Tavidisetty Nageswara Rao, , wherein the learned Division Bench observed at para nos. 48, 49 and 50 as hereunder:
Hence, we are of the view that the defendant attained the majority by 1973 itself, in view of the very admission of the plaintiff in his deposition that the defendant was 17 years old by the date of death of Ramulamma. The defendant even from 1973 exhibited hostile animus and exercised possession to the exclusion of his father. We do not give much importance to the tax receipts produced by the plaintiff or defendant, since no mutation had taken place and as per the revenue records, still Ramulamma''s name is being recorded.
Be that as it may, the plaintiff never made any claim for profits from 1973 till 1988 when the legal notice was issued to the defendant, nor ever any demand was made claiming share in the suit schedule property or any partition was ever sought for excepting for the first time in the suit in the year 1988 i.e., after lapse of 15 years.
Analyzing the above principle laid down by the Larger Bench of the Apex Court and on the material available on record in the present case, there is neither resumption of physical possession or re-entry of the property by the plaintiff. Hence, we are of the firm view that the defendant had denied the title of the plaintiff and animus to hold adversely was established clearly and was evidenced by his unequivocal conduct and as such perfected his title by adverse possession, as the ouster is proved. Therefore, this plea of adverse possession and ouster is upheld in favour of the defendant against the plaintiff and the issue is answered accordingly.
The plea of ouster or the plea of applicability of doctrine of tacking while appreciating the plea of adverse possession, these aspects may have to be appreciated in the backdrop of the facts. The specific stand taken by the first and second defendant in the respective pleadings, the written statements and also the evidence of DWs. 1 and 2 in particular and also the specific grounds raised in the grounds of appeal.
Even in the first appeal, the grounds specified are to the effect that there was never co-ownership and the father of the plaintiff never contributed his portion of the sale consideration in relation to Ex. A1 transaction and his name was shown nominally in the sale transaction. It is needless to say that this aspect is predominantly a question of fact, concurrent findings had been recorded by both the courts below on this question.
The learned Counsel representing the appellant in all fairness would submit that this question cannot be seriously assailed in a second appeal being predominantly a question of fact.
In the light of the facts of the present case and also in the light of the evidence of P.W. 1 that she demanded for partition in or about the year 1960, may be for the reason that no activity as such was taken out by virtue of the first sale transaction dated 3-3-1969. The plaintiff had not initiated any action. But when the second sale transaction Ex. A3 dated 12-2-1979 was completed and same activity was commenced by the members of the appellant-society within the reasonable time and within time. With all promptness, the plaintiff had instituted the present suit claiming the relief of partition on the ground that she being the legal heir of the deceased father is entitled to her half share by virtue of the sale transaction Ex. A1 being the co-owner. It is needless to say that when a sale deed stands in the names of two persons it is to be taken that both parties are equally entitled for shares.
Hence, viewed from any angle, this Court is of the considered opinion that the second appeal is devoid of merit and accordingly the same shall stand dismissed. In the peculiar facts and circumstances, the parties to the litigation to bear their own costs.