Telangana High Court
K.M.Kistamma,Died Per Lrs A2 To 6 And 2 … vs Gandaiah, Malakpet, And 3 Others on 17 June, 2025
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR. JUSTICE G. RADHA RANI
C.C.C.A.No.169 of 1994
JUDGMENT:
This appeal is preferred by the plaintiff aggrieved by the judgment and
decree dated 21.02.1994 passed by the learned V Additional Judge, City Civil
Court, Hyderabad in O.S.No.531 of 1982 for dismissing the suit filed by her
seeking the relief of recovery of possession of the suit schedule property.
2. The suit schedule property is bearing No.16-2-147/53-54 admeasuring
1776 square yards situated at Akbar Bagh, Malakpet, Hyderabad in Plot Nos.85
and 86, which were subsequently rectified as 285 and 286 in Survey No.107
(old) (New Survey No.134). The respondents 1 to 3 were alleged to be the
owners of plot Nos.238, 255 and 256 admeasuring 730 square yards in old
Survey No.107 corresponding to new Survey No.134 in Malakpet, Hyderabad
purchased in the name of respondent No.2. The respondents 1 to 3 belonged to
one family. The respondent No.4 is alleged to be the owner of plot No.237
admeasuring 230 square yards.
3. The appellant No.1 died after filing the appeal and her sons were brought
on record as appellants 2 to 6. The appellant No.2 died during the pendency of
the appeal and his LRs were brought on record as appellants 7 and 8. The
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appellant No.5 also died and his LRs were brought on record as appellants 9 to
11. The appeal was initially filed against respondents 1 to 4. The same was
abated against respondents / defendants 1, 2 and 4. The respondent No.2 was
the wife of respondent No.1. The respondent No.3 was the son of respondents 1
and 2. The respondent No.4 was not connected with the family of respondents 1
to 3. On the death of respondents 1 and 2, the other sons of respondents 1 and 2
were brought on record as respondents 5 to 7. The respondent No.4 died and
her LR was brought on record as respondent No.8. The respondent No.6,
another son of respondents 1 and 2 died and his LRs were brought on record as
respondents 9 to 11. The respondent No.3 died and his LRs were brought on
record as respondents 12 to 14.
4. The facts of the case in brief are that the appellant – plaintiff filed
O.S.No.4219 of 1978 initially against respondents 1 and 2 alone on the file of
the learned VI Assistant Judge, City Civil Court, Hyderabad for delivery of the
suit schedule property after ejecting the respondents 1and 2 there from. Later,
the suit was transferred to the learned V Additional Judge, City Civil Court,
Hyderabad and was re-numbered as O.S.No.531 of 1982.
5. The parties are herein after referred to as plaintiff and defendants.
6. As per the plaint averments, the plaintiff contended that she purchased an
open land admeasuring 1776 square yards in Plot Nos.85 and 86, which were
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subsequently rectified as 285 and 286 in Survey No.107 (old) (New Survey
No.134) from one Smt.Akbarunnisa Begum, D/o. late Nawab Huzur Yar Jung
under a registered sale deed dated 21.08.1965 for a sum of Rs.2,000/-. After
purchase, the vacant possession of the plots was delivered to the plaintiff by her
vendor. The plaintiff obtained permission from the Municipal Corporation of
Hyderabad (for short “MCH”) for construction of shed in the open land and
constructed a temporary shed. The plaintiff’s vendor’s father late Nawab Huzur
Yar Jung purchased Survey No.107 (old) known as Akbar Bagh in the auction
conducted by the High Court in execution of a decree. An objection petition
was filed by Sarf-e-khas with regard to the ownership and possession of the said
property and the same was dismissed by the High Court in its original
jurisdiction in Case No.89/2 of 1334 Fasli. Subsequent to the dismissal of claim
petition, the High Court in its original jurisdiction in Case No.109/1953-54 vide
judgment dated 31.08.1954 declared the plaintiff’s vendor as absolute owner of
the land and delivered possession to the plaintiff. The plaintiff’s vendor paid
land revenue as per the Dharakha to the Tahsil, Hyderabad (West), which was
entered in Kirdi No.200, page No.303. Subsequently Survey NfFo.107 (old)
was divided into several plots as per layout plan sanctioned by the High Court.
The plaint schedule plots bearing Survey Nos.85 & 86 admeasuring 1776 square
yards was part of Survey No.107 (old), Akbar Bagh, Malakpet, Hyderabad,
which was the subject matter of the suit. Since the date of purchase, the
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plaintiff was in exclusive possession and enjoyment of the plaint schedule
property without any hindrance and interruption. The defendant No.1 was the
husband of defendant No.2. Taking advantage of temporary absence of the
plaintiff and her husband in the last week of May, 1978, the defendants 1 and 2
trespassed into the plaint schedule property and forcibly erected a shed in the
suit property. The plaintiff made complaint of trespass and illegal possession of
the defendants to police, but the police did not take any action. As the
defendants failed to vacate the schedule property inspite of repeated demands
and requests made by the plaintiff, the plaintiff filed the suit seeking the relief
of recovery of possession by evicting the defendants or anyone claiming
through them.
7. The defendants 3 and 4 were brought on record in the suit in the year
1979 under Order I Rule 10 of CPC.
8. The defendants 1 to 3 filed written statement contending that one Sri
Khaja Moinuddin was the absolute owner, possessor and pattedar of the land
bearing old Survey Nos.105 to 107 (corresponding to new Survey Nos.131 to
134) including their sub-division numbers situated opposite to Mahboob
Mansion, Malakpet, Hyderabad. The patta of the above said land was granted
in the year 1340 Fasli in favor of said Sri Khaja Moinuddin. Sri Khaja
Moinuddin had been in possession and enjoyment of the above said land even
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prior to the date of mutation of patta in his name. One Birbhangirji got attached
the old Survey No.107 of Malakpet Village in execution of a decree against
Smt.Akbarunnisa Begum, the alleged vendor of the plaintiff. Sri Khaja
Moinuddin filed an objection petition in the year 1350 Fasli before the High
Court of Hyderabad in its original jurisdiction. The High Court of Hyderabad
allowed the said objection petition filed by Khaja Moinuddin in respect of the
above said land bearing old Survey No.107 of Malakpet Village. The alleged
vendor of the plaintiff viz., Smt.Akbarunnisa Begum was a party (Judgment-
debtor) to the above said proceedings. The said judgment of the High Court of
Hyderabad was binding on Smt.Akbarunnisa Begum and also others claiming
under her including the plaintiff. While being in continuous and uninterrupted
possession and enjoyment of the said land bearing Survey Nos.105 to 107 (old)
corresponding to new Survey Nos.131 to 134 of New Malakpet Village, the said
Khaja Moinuddin divided a major portion of his land into plots and prepared a
layout and submitted the same for sanction to the MCH in the year 1961. The
MCH, after verification of the relevant documents of said Khaja Moinuddin,
granted sanction of layout in his favor in the year 1963. The said Khaja
Moinuddin alienated or otherwise disposed of the plots in the above said layout
to various persons. The purchasers of the plots had been in possession and
enjoyment of their respective plots by constructing houses thereon and living in
them without any objection or interference from any quarter.
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8.1. The defendants 1 to 3 further submitted that they purchased plot Nos.238,
255 and 256 totally admeasuring 730 square yards from the above said layout of
Khaja Moinuddin in old Survey No.107 corresponding to new Survey No.134 in
Malakpet, Hyderabad, in the name of defendant No.2 from the said Khaja
Moinuddin through his son and General Power of Attorney (for short “GPA”)
agent Sri K.Habeebuddin under a registered sale deed dated 19.03.1971 for
valuable consideration. The said vendor had put the defendants in physical and
actual possession of the said plots of land on the date of the sale deed itself.
While being in possession and enjoyment of the said lands, the defendants
through defendant No.2 applied to MCH in the year 1971 itself for permission
to construct a small house and compound wall on the above said plots of land.
The MCH granted permission for the above said construction on 06.08.1971.
Accordingly, the defendants made pucca construction on the above said land in
pursuance of the sanction granted by the MCH. After completion of the said
construction, the MCH assessed the newly constructed house for property tax
and allotted Municipal Number 16-2-147/55/A. The defendants also made
additions to the above said house on the other plots of land subsequently. The
defendants through defendant No.2 again applied to the MCH for further
construction and additions to the already constructed house on the above said
plots of land. The MCH granted permission for the above said construction on
16.08.1978. Accordingly, the defendants constructed a building in the above
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said plot of land on the existing house. Subsequently on 22.05.1979, the
defendants through defendant No.2 again applied to the MCH for construction
of first floor on the existing ground floor premises bearing No.16-2-147/55/A
standing on the said plot Nos.238, 255 and 256 in the above said layout of
Khaja Moinuddin in old Survey No.107 (new Survey No.134) of Malakpet,
Hyderabad. The MCH accordingly granted permission for construction of first
floor on 11.09.1979. The defendants thereafter constructed the first floor on the
existing ground floor premises as per the sanctioned plan. Since the date of
purchase, the defendants had been in continuous and uninterrupted possession
and enjoyment of the said property as absolute owners thereof, by living therein
and also by letting out portions of the said premises to various tenants. Prior to
the said purchase, Sri Khaja Moinuddin, their vendor and the original owner,
the pattadar of the said land bearing old Survey Nos.105 to 107 (corresponding
to new Survey Nos.131 to 134) of Malakpet Village had been in continuous and
uninterrupted possession and enjoyment of the above said lands as absolute
owner thereof even prior to 1340 Fasli. The defendants had been paying water
and electricity consumption charges regularly. The defendants and their family
members were living in the said premises and tethering their cattle in the suit
property. They had also let out some portions of the building to tenants and had
been receiving rents from them.
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8.2. The defendants 1 to 3 further submitted that the alleged vendor of the
plaintiff viz., Smt.Akbarunnisa Begum had no right, title or interest in the suit
schedule property at any point of time and as such she could not convey any
right, title or interest in respect of the suit schedule property to the plaintiff.
Even otherwise, the said Akbarunnisa Begum had already executed a sale deed
in respect of the suit schedule property long prior to the alleged sale in favor of
the plaintiff and as such she had no subsisting title or interest in the suit
schedule property. The plaintiff and her husband were fully aware that the suit
schedule property originally belonged to the vendor of the defendants viz., Sri
Khaja Moinuddin. The plaintiff’s husband Nagappa himself had purchased a
plot of land in the year 1960-61 itself in the layout of Sri Khaja Moinuddin in
Survey No.107 from the very same vendor Sri Khaja Moinuddin and also
constructed a house thereon. Even the land on which the house bearing No.16-
2-147/22 has been constructed by the plaintiff and her husband, in which they
were residing presently, originally belonged to Sri Khaja Moinuddin. The
plaintiff in order to blackmail the defendants and to make wrongful gain filed
the present suit, which was false, frivolous, vexatious and speculative, only to
harass the defendants and prayed to dismiss the suit with exemplary costs.
8.3. The defendants 1 to 3 further contended that the suit was time barred and
undervalued. The prevailing market value of the land in and around the suit
land was more than Rs.200/- per square yard at the time of presentation of the
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plaint before the Court. The total value of the suit schedule property @
Rs.200/- per square yard would work out to Rs.3,55,200/- and the plaintiff
ought to have paid Court fee on 3/4th of the above said market value of the suit
schedule property, as she had claimed the relief of possession. The plaintiff
valued the relief of possession under incorrect provision of the Court Fee Act.
8.4 They also further contended that the suit was filed long after the period of
limitation. The plaintiff herself admitted that she has lost her possession of the
suit schedule property 12 years prior to the presentation of filing of the suit
before the Court. As such, the suit was not maintainable either in law or on
facts and the same deserves to be dismissed.
8.5. The defendants 1 to 3 further contended that the description and identity
of the suit schedule property was not clear and they were very vague. It was
very difficult to locate the suit schedule land as per the schedule of property
given in the plaint. The plaintiff was trying to falsely claim the land belonging
to the defendants under the guise of the alleged sale deed. The plaintiff had
given Survey Nos.85 and 86 in Survey No.107 in the plaint schedule. There
were no such survey numbers in or around the suit land of the defendants. Even
the house number given in the plaint as 16-2-147/53-54 was not in existence in
or around the property of the defendants. The said Municipal number did not
pertain to the property in the rightful possession and enjoyment of the
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defendants. The cause of action shown in the plaint was imaginary and had
been created only for the purpose of filing the suit. The defendants were in
lawful possession of the suit schedule property since long time, as such they
were entitled to be remained in possession in their own right.
9. The defendant No.4 filed written statement contending that the premises
owned and possessed by the defendant was bearing No.16-2-147/55. The suit
was filed for recovery of possession of premises bearing No.16-2-147/53-54, as
such the defendant No.4 was not a necessary party. The plaintiff had no cause
of action against the defendant and the suit was liable to be dismissed on the
ground of misjoinder of parties alone. She also contended that the suit was
undervalued at Rs. 1,42,000/- and it ought to have been valued for Rs.3,60,000/-
and Court fee ought to have been paid thereupon accordingly. The plaint was
liable to be rejected on that ground.
9.1. The defendant No.4 further contended that the premises in possession of
the defendant was in Plot No.237. The plot was sold to Mohd.Issa by one Khaja
Moinuddin vide registered document on 24.04.1961 for a valuable sale
consideration. The said Mohd.Issa in his turn sold the said plot to one Sri
C.Vaikuntam for a valuable consideration on 16.06.1961. The said
C.Vaikuntam sold the same by registered sale deed dated 19.09.1961 to Sri
V.Keshava Reddy, who inturn sold the same to one Sri K.Ratna Reddy under
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registered sale deed dated 18.11.1963. Sri K.Ratna Reddy obtained municipal
permission for construction of sheds in the said plot and constructed two rooms.
The premises was numbered as 16-2-147/55 admeasuring 220 square meters.
He also obtained connections of electricity and water from the authorities to the
said premises. The said Ratna Reddy sold the said plot to Smt. K.Laxmi Bai for
a consideration of Rs.4,000/- under a registered sale deed dated 27.06.1968.
The said Smt.K.Laxmi Bai inturn sold the said plot to the defendant under
registered sale deed dated 12.09.1968 for a consideration of Rs.5,000/-. The
defendant there after obtained municipal permission for construction of building
vide Permit No.15/37 of 1972 from the MCH and constructed the same thereon.
The defendant had been in continuous and uninterrupted possession and
enjoyment of the said premises from 1968. Earlier to 1968, as could be seen
from the various sale deeds of her predecessors-in-title, they were in continuous
possession and enjoyment of the same as true owners. The plaintiff was aware
of all the said facts. The defendant apart from her sale deeds, even otherwise
had perfected her title to the premises under possession and enjoyment of which
she had always been asserting as the owner thereof. The plaintiff was ill-
advised to file the suit for the purpose of illegally grabbing the property of the
defendant, which infact was not the subject matter of the suit and prayed to
dismiss the suit with exemplary costs.
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10. Basing on the said pleadings, the trial court framed the issues as follows:
i) Whether the plaintiff had valid and subsisting title to the suit property?
ii) Whether the plaintiff had been in possession of the suit property till 1978?
iii) Whether the alleged encroachment by the defendants on the suit land was
proved?
iv) Whether the suit was barred by limitation?
v) Whether the suit property was in Survey Nos.85 and 86 of Malakpet Village,
Hyderabad?
vi) Whether the valuation of the suit and Court fee thereon were not correct?
vii) Whether the plaintiff was entitled for recovery of possession of suit
property?
viii) To what relief?
11. The husband of the plaintiff was examined as PW.1 and the building
material supplier was examined as PW.2. Exs.A1 to A16 were marked on
behalf of the plaintiff. The defendant No.3, the son of defendants 1 and 2 was
examined as DW.1. The husband of defendant No.4 was examined as DW.2.
Exs.B1 to B54 were marked on behalf of the defendants. Out of these exhibits
Exs.B32 to B54 pertain to defendant No.4.
12. On considering the oral and documentary evidence on record, the trial
court decided the issues 5 and 6 in favor of the plaintiff and decided the other
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issues against the plaintiff holding that the plaintiff failed to prove her title and
possession over the schedule property and that the suit was barred by limitation.
13. Aggrieved by the dismissal of the suit, the plaintiff preferred this appeal.
14. Heard Sri P.Gangaiah Naidu, learned Senior Counsel representing Sri
N.Bharat Babu, learned counsel for the appellant on record and Sri I.V.Radha
Krishna Murthy, learned counsel for respondent No.8 (LR of respondent No.4),
Sri M.R.S.Srinivas, learned Senior Counsel for respondents 9 to 11 (LRs of
deceased respondent No.6) and Sri K.G.Krishna Murthy, learned Senior
Counsel representing Ms.K.Kiran Mayee, learned counsel for the respondents
12 to 14 (LRs of deceased respondent No.3).
15. Learned Senior Counsel for the appellants contended that the suit
property and the property being claimed by the defendants were different and
distinct. The suit land was in Survey No.107 (old), Survey No.134 (new) of
Akbar Bagh, Malakpet, Hyderabad, whereas the land claimed by the defendants
was located in Old Malakpet, Hyderabad. The respective Survey Numbers,
extent of land, location and even the boundaries were not tallying with one
another. In such circumstances, the trial court ought to have framed a specific
issue as to whether the suit property and the property claimed by the defendants
was one and the same. However, the trial court failed to frame such a crucial
issue, which was central to resolving the entire dispute. Non-framing of
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relevant issue was fatal and the said omission rendered the entire proceedings
defective warranting a remand for proper adjudication. Order XLI Rule 25 of
CPC would enable this Court to frame an issue and direct the trial court to try
the issue and relied upon the judgment of the Hon’ble Apex Court in Makhan
Lal Bangal v. Manas Bhunia and Others 1 on the aspect that:
“19. … The stage of framing the issues is an important one
inasmuch as oh that day the scope of the trial is determined by
laying the path on which the trial shall proceed excluding
diversions and departures there from. The date fixed for
settlement of issues is, therefore, a date fixed for hearing. The
real dispute between the parties is determined, the area of
conflict is narrowed and the concave mirror held by the court
reflecting the pleadings of the parties pinpoints into issues the
disputes on which the ‘two sides differ. The correct decision of
civil lis largely depends on correct framing of issues, correctly
determining the real points in controversy which need to be
decided.”
15.1. Learned Senior Counsel for the appellants further relied upon the
Division Bench judgment of the High Court of Andhra Pradesh in Maddala Sai
Lakshmi v. Medisetti Lakshmi Narasamma and Others 2, wherein also it was
held that:
“10. Before parting, we are very often coming across a situation
where it is noticed that the issues as framed at the inception are
not correctly representing the dispute in between the parties.
1
AIR 2001 SC 490
2
2006 (3) ALT 708 (DB)
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ccca_169_1994We are conscious of the fact that immediately after filing any
written statement, no serious attention is being paid by either
side in the Court below nor due assistance is given at the time
of framing issues. No draft issues are being filed at that stage.
No attempt is made to point out whether the issues as framed
are proper at the stage of commencement of trial. It is only after
proceeding with the trial or may be at a later stage, including
arguments stage, it is noticed that the issues are not properly
framed and it requires reframing. This is a clear instance where
the Court below totally lost sight of the core dispute, which
arises between the parties, in regard to the adoptions as set up
by them in their respective pleadings and yet, we do not find
any issue framed thereon. To avoid such lapses or late
realization, in every case, before commencement of trial, a
specific date has to be posted for hearing both the sides once
again on the issues, to see if they have been properly framed or
needs any reframing and it is only after such exercise is done,
the trial should be allowed to commence and proceeded with.
Even at the hearing, both the sides can be called upon to file
any draft issues for warranting reframing. This exercise
ultimately can safely avoid orders of remand by Appellate
Courts, as is being done in this case.”
15.2. Learned Senior Counsel for the appellants further contended that the
claim of the plaintiff that the suit land was purchased from Smt.Akbarunnisa
Begum was duly established through oral and documentary evidence. The
registered sale deed dated 21.08.1965 contained all the essential particulars /
recitals required for lawful transfer of the ownership including source of title,
survey number, location, extent and boundaries. In contrast, the recitals in the
sale deed of defendants were vague, incomplete and ambiguous. The conduct
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of the defendants was neither bonafide nor credible. In such circumstances, the
burden would lie on the defendants to establish their right over the suit property
by producing clear and conclusive evidence. The plaintiff discharged her initial
burden, as such, the burden would shift to the defendants to prove their title and
disprove the title of the plaintiff. In the instant case, the defendants failed to do
so and hence the suit ought to have been decreed as prayed for. He further
contended that the plaintiff was in possession of the property, which was
admittedly purchased under a registered sale deed prior to the purchase of
defendants. Since the defendants’ purchase of property was subsequent to the
plaintiff’s purchase, the burden would lie upon the defendants to establish their
right over the property. However, the defendants failed to rebut the plaintiff’s
title and possession up to the year 1978. Even if the defendants had a valid title
in respect of some other property, it would not confer upon them any right to the
plaintiff’s property. The defendants 1 to 3 relied upon Exs.B1 to B31 to
establish their title over the land to an extent of 730 square yards. However, the
said property was different and distinct from the suit schedule property. Merely
showing title over the land not related to the suit land would not entitle the
defendants to claim any right over the suit land. Their documents and evidence
pertain to a different parcel of land and had no bearing on the present dispute.
The defendants developed their case in the written statement as if their land was
in Survey No.107 (old), Survey No.134 (new), Akbar Bagh, Malakpet,
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Hyderabad. Such an attempt should not have been allowed by the trial court.
Their sale deed marked under Ex.B11 would not disclose the source of title,
exact extent of land, survey numbers, location and boundaries. Insufficient and
ambiguous document would not help the party in relying on it for any purpose.
15.3. Learned Senior Counsel for the appellants further contended that the sale
deed of defendants 1 to 3, dated 19.03.1971 was said to be executed by one
Khaja Habeebuddin as GPA holder of his father Khaja Moinuddin. Notably, the
said Khaja Moinuddin earlier filed O.S.No.2089 of 1973 for declaration and
mandatory injunction in respect of land in Survey Nos.105 to 107 particularly
claiming that the total land in Survey No.107 was Ac.17.1 guntas as against the
Ac.-12-20 guntas and he was unsuccessful. Similarly, another suit O.S.No.22
of 1970 was filed by him which also met the same fate. The observations of the
Court in both the judgments (Exs.A12 to A16) was that their possession of any
portion of land in Survey No.134 was doubtful and hence held that they were
not in possession of the land. The Court also held that to the knowledge of
Khaja Moinuddin, Smt.Akbarunnisa Begum sold out several plots and they
constructed buildings even and as such the claim of Khaja Moinuddin was not
entertainable at that stage. The entries in the revenue records relied by the
defendants had been considered in the suits filed by their vendor and ruled out
that they were not conclusive proof of title. In view of the judgments of this
Court, the defendants could not claim any property through Khaja Moinuddin
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much less the suit property. The plaintiffs made out a strong case for the relief
sought for in the suit and the evidence produced would clinchingly establish
their title and possession over the suit land till 1978. The defendants failed to
make out even a prima facie case to establish their right over the suit land.
Their entitlement for possession on the strength of Exs.B11 and B12 which
related to some other land was unlawful and unsustainable and prayed to set
aside the judgment and decree dated 21.02.1994 in O.S.No.531 of 1982 passed
by the learned V Additional Judge, City Civil Court, Hyderabad and decree the
suit as prayed for or alternatively to remand the matter to the trial court for
consideration by framing the relevant issue relating to the properties claimed by
both the parties.
16. Learned Senior Counsel for the respondents 12 to 14, the LRs of
respondent No.3 contended that the suit was filed for eviction and delivery of
vacant possession. The defendant no.3 purchased the property through Ex.B11.
The respondent No.3 – defendant No.3 obtained municipal permission vide
Ex.B13 and constructed a building. The suit was barred by limitation, as the
plaintiff herself admitted that she lost her possession of the suit schedule
property 12 years prior to the filing of the suit. The trial court dismissed the suit
on the said ground also. The issues framed cover the case of the plaintiff and
there was no need to frame any additional issue. As an abundant caution, the
trial court also framed the issue on title, though it was strictly not necessary.
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The plaintiff had not taken any steps for identification of property by a surveyor
or by appointment of an Advocate Commissioner. The plaintiff never entered
into witness box. The husband of the plaintiff examined as PW.1, had not filed
the GPA. No GPA was marked as an exhibit. The defendant No.3 was
examined as DW.1. The defendant No.3 (DW.1) filed Exs.B8 and B9, the
sessala pahani and khasra pahani, which were reflecting the name of Khaja
Moinuddin, their vendor. The plaintiff did not challenge the sale deed of the
defendant till date, though there was a cloud over his title. No link document
pertaining to the vendor of the plaintiff was filed by the plaintiff. The common
judgment marked under Ex.A14 had no relevance to the facts of the case. The
claim petition filed by Sri Khaja Moinuddin, the vendor of the defendants was
allowed stating that the property could not be attached. The said order was not
challenged by the plaintiff or her vendor and relied upon the judgments of the
Hon’ble Apex Court in Anathula Sudhakar v. P.Buchi Reddy (dead) by LRs.
& Others 3, Muddasani Venkata Narsaiah (dead) per LRs v. Muddasani
Sarojana 4, Rangammal v. Kuppuswami and Another 5 and A.Subramanian
v. R.Paneerselvam6 and of the judgment of this Court in Patti Manemma v.
Balamani & Others 7.
3
2008 (4) SCC 594
4
(2016) 12 SCC 288
5
AIR 2011 SC 2344
6
AIR 2021 SC 821
7
MANU/TL/0898/2022
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17. Learned Senior Counsel for the respondents 9 to 11 (LRs of respondent
No.6) contended that the plaintiff filed the suit against the defendants seeking
the relief of eviction and delivery of vacant possession. The relief of eviction
could be granted only when there was a jural relationship between the parties or
when the defendant was in permissive possession. The plaintiff had not used
the word “ejectment”. There was a distinction between the suit for eviction and
ejectment and relied upon the judgment of the Hon’ble Apex Court in Brahma
Nand Puri v. Nelci Puri (since deceased) represented by Mathra Puri and
Another8. He further contended that the rectification deed (Ex.A10) was filed
by the plaintiff during the pendency of the suit after an objection was taken by
the defendants in their written statement on 11.10.1982. Ex.A10 was not
executed by the same person, who executed Ex.A1 sale deed. The said
document marked under Ex.A10 was not valid. It was created. Both the parties
were claiming title from two different sources. When there was a cloud, the
plaintiff ought to have filed a suit for declaration. Mere filing a suit for
recovery of possession was not sufficient and relied upon the judgment of the
Hon’ble Apex Court in Anathula Sudhakar v. P.Buchi Reddy (dead) by LRs.
& Others (cited supra).
17.1. Learned Senior Counsel for the respondents 9 to 11 further relied upon
the judgment of the Hon’ble Apex Court in Union of India and Others v.
8
AIR 1965 SC 1506
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ccca_169_1994
Vasavi Co-operative Housing Society Limited and Others 9 on the aspect that
the entire burden would lie upon the plaintiff to prove his case, wherein it was
specifically held that:
“18. In Nagar Palika, Jind v. Jagat Singh, Advocate [(1995)
3 SCC 426], this Court held as under:
“The onus to prove title to the property in
question was on the plaintiff. In a suit for
ejectment based on title it was incumbent on the
part of the court of appeal first to record a
finding on the claim of title to the suit land made
on behalf of the plaintiff. The court is bound to
enquire or investigate that question first before
going into any other question that may arise in a
suit.”
19. The legal position, therefore, is clear that the plaintiff in a
suit for declaration of title and possession could succeed only
on the strength of its own title and that could be done only by
adducing sufficient evidence to discharge the onus on it,
irrespective of the question whether the defendants have proved
their case or not. We are of the view that even if the title set up
by the defendants is found against, in the absence of
establishment of plaintiff’s own title, plaintiff must be non-
suited.”
17.2. Learned Senior Counsel for the respondents 9 to 11 further relied upon
the judgment of the Hon’ble Apex Court in Vidhyadhar v. Manikrao and
9
(2014) 2 SCC 269
22
Dr.GRR, J
ccca_169_1994
Another10 on the aspect that where a party to the suit does not appear in the
witness box and states his own case on oath and does not offer himself to be
cross-examined by the other side, a presumption would arise that the case set up
by him is not correct and an adverse inference need to be drawn against him.
17.3. Learned Senior Counsel for the respondents 9 to 11 further relied upon
the judgment of this Court in Poreddy Venkata Narisireddy (died) per LRs.
V. Mukkamala Venkata Narasamma (dead) per LRs.11 on the aspect that
Rule 32 of the Civil Rules of Practice is mandatory and the failure of the GPA
holder to seek the permission of the Court before taking any steps in the
proceedings is fatal.
17.4. Learned Senior Counsel for the respondents 9 to 11 further contended
that the property claimed by the plaintiff and defendants were entirely different.
Their extents, plots, boundaries were not matching with each other. Once
identification was in dispute, burden would lie heavily on the plaintiff to show
that the property claimed by her was the same in possession of the defendants.
The plaintiff also would need to establish that Exs.A1 and A10 were both
relating to the same property. The admissions made by PW.1 also would
disclose that the building was constructed by defendants 3 and 4 in the year
1967. As such, the defendants were in possession since 1967. There was a
10
AIR 1990 SC 1441
11
2019 (3) ALT 36 (SB)
23
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presumption forward and backward with regard to the possession of the
defendants. From 1961 onwards, the defendants or their predecessors were in
possession. Considering all these aspects, the trial court rightly dismissed the
suit and prayed to dismiss the appeal.
18. Learned counsel for respondent No.8 (LR of respondent No.4) contended
that defendant No.4 was the mother of respondent No.8. The defendant No.4
died on 19.09.2004. Subsequently, the LRs of defendant No.4 were brought on
record in the year 2018. Originally, the respondent’s mother was not party to
the proceedings. She was brought on record in the year 1979 under Order I
Rule 10 of CPC. But the appellant – plaintiff failed to bring consequential
amendments as per Rule 28 of Civil Rules of Practice. The same was fatal since
there was no cause of action against defendant No.4. There was no prayer in the
suit against defendant No.4. It was settled principle of law that without
pleading there could not be any relief against any defendant. Assuming that the
suit was based on title and recovery of possession, Article 65 of the Limitation
Act, 1963 would come into operation. As per the said Article, 12 years
limitation period was prescribed. Admittedly, the vendor’s vendor of defendant
No.4 i.e. K.Ratna Reddy obtained permission from the Municipal Authorities
and a door number was allotted as 16-2-147/55 in the year 1965. The
predecessors of defendant No.4 obtained Municipal Number in the year 1965
itself. As such, the suit against defendant No.4 was hopelessly barred by
24
Dr.GRR, J
ccca_169_1994
limitation. The title of defendant No.4 and her vendors were marked as
Exs.B33 to B38. The appellant – plaintiff miserably failed to show that the
property of the respondents was part of the suit schedule property. Apart from
that there was no pleading to show that H.No.16-2-147/55 constructed on plot
No.237 was part of the suit schedule property. As per the pleadings of the
plaint, the plaintiff was dispossessed by defendants 1 and 2. But there was no
pleading as to when defendant No.4 had dispossessed the plaintiff and occupied
the suit schedule property. Infact, the defendant No.4 purchased the property
under registered sale deed. The vendors of defendant No.4 originally purchased
plot No.237 in the year 1961 and subsequently K.Ratna Reddy, predecessor-in-
title of defendant No.4 obtained permission in the year 1965 and constructed a
house. Therefore, the question of any dispossession of the plaintiff in respect of
plot No.237 in May 1978 would not arise at all.
18.1. Learned counsel for respondent No.8 further contended that the plaintiff
had not entered into the witness box and since she failed to enter into the
witness box, an adverse inference could be drawn against her and relied upon
the judgment of the Hon’ble Apex Court in Vidhyadhar v. Manikrao and
Another (cited supra). He further contended that as per the pleadings in the
plaint, there was a cloud over the title of the plaintiff, as such the plaintiff ought
to have converted the suit claiming the relief of declaration apart from recovery
of possession. He further contended that as the plaintiff’s title was at stake, the
25
Dr.GRR, J
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plaintiff has to file a suit for declaration and recovery of possession and relied
upon the judgment of the Hon’ble Apex Court in Anathula Sudhakar v.
P.Buchi Reddy (dead) per LRs and Others (cited supra). He further
contended that the father of the plaintiff’s vendor did not have title for the suit
schedule property. Hence, the plaintiff could not have better title than him.
Though the plaintiff contended that she was in possession of 1776 square yards,
even for the sake of arguments, if the total extent of the defendants was
calculated, it was not more than 900 square yards. What happened to the
remaining extent was not explained by the plaintiff. The plaintiff was unable to
prove that she was in possession of even one square yard in respect of the suit
schedule property. The court below on considering all the aspects rightly held
that the suit of the plaintiff was devoid of merits by giving cogent reasons.
Apart from that, the respondents clearly demonstrated their title and possession
and that their property was not part of the suit schedule property and prayed to
dismiss the appeal.
19. Now the points for consideration in this appeal are:
1) Whether the failure of the plaintiff to enter into witness box is fatal to her
case?
2) Whether the suit filed by the plaintiff for recovery of possession alone is
maintainable?
26
Dr.GRR, J
ccca_169_1994
3) Whether the plaintiff is able to prove her possession over the suit schedule
property till May 1978 and was entitled to claim the relief of recovery of
possession from the defendants 1 to 4 or their LRs?
4) Whether the suit is barred by limitation?
5) To what relief?
20. POINT No.1:
Whether the failure of the plaintiff to enter into the witness box is
fatal to her case?
As seen from the record, the plaintiff filed the suit in her own capacity.
She did not enter into the witness box. Her husband was examined as PW.1.
No GPA was given by her to her husband to depose on her behalf. As per his
evidence, he purchased the suit schedule property in the name of his wife, he
was acquainted with the facts of the case and gave evidence on her behalf.
Learned counsel for the respondents contended that the same was not
permissible and an adverse inference would need to be drawn against the
plaintiff when the plaintiff failed to enter into the witness box and relied upon
the judgment of the Hon’ble Apex Court in Vidhyadhar v. Manikrao &
Another (cited supra), wherein it was held that:
“17. Where a party to the suit does not appear into the witness
box and states his own case on oath and does not offer himself
to be cross examined by the other side, a presumption would
arise that the case set up by him is not correct as has been held
27
Dr.GRR, J
ccca_169_1994in a series of decisions passed by various High Courts and the
Privy Council beginning from the decision in Sardar
Gurbakhsh Singh v. Gurdial Singh and Another [AIR 1927
PC 230]. This was followed by the Lahore High Court in Kirpa
Singh v. Ajaipal Singh and Ors. [AIR (1930) Lahore 1] and
the Bombay High Court in Martand Pandharinath
Chaudhari v. Radhabai Krishnarao Deshmukh [AIR (1931)
Bombay 97]. The Madhya Pradesh High Court in Gulla
Kharagjit Carpenter v. Narsingh Nandkishore Rawat [AIR
1970 MP 225] also followed the Privy Council decision
in Sardar Gurbakhsh Singh‘s case (supra). The Allahabad
High Court in Arjun Singh v. Virender Nath and Another
[AIR 1971 All 29] held that if a party abstains from entering
the witness box, it would give rise to an inference adverse
against him. Similarly, a Division Bench of the Punjab &
Haryana High Court in Baghwan Dass v. Bhishan Chand and
Others [AIR 1974 P&H 7] , drew a presumption under Section
114 of the Evidence Act against a party who did not enter into
the witness box.
21. Admittedly, the suit was filed in the name of K.M.Kistamma,
W/o.Nagappa, showing her as the plaintiff. The registered sale deed document
marked as Ex.A1 is showing that the suit schedule property was purchased by
her. Learned counsel for the appellants contended that under Section 120 of the
Indian Evidence Act, 1872, a husband is competent to give evidence on behalf
of his wife and vice versa even in the absence of a written authority of power of
attorney, as such PW.1 was competent to give evidence on behalf of the
plaintiff.
28
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ccca_169_1994
22. On a perusal of Section 120 of Indian Evidence Act, 1872, it only
provides that in all civil proceedings, the parties to the suit, and the husband or
wife of any such party, shall be competent witnesses. This Section only says
that the spouse is a competent witness i.e. someone who can be examined in the
Court. It does not authorize the husband to step into the shoes of his wife and
testify on her behalf. There was a key distinction between a competent witness
and a substitute witness. A competent witness can testify if his evidence is
relevant, but a substitute witness cannot depose in the place of a party unless
validly authorized and having personal knowledge. Even a GPA holder cannot
depose for the principal on matters of personal knowledge as per the judgment
of the Hon’ble Apex Court in Janki Vashdeo Bhojwani & Another v.
Indusind Bank Limited & Others 12. So, a husband who was not even a GPA
holder, certainly cannot depose on behalf of his wife invoking Section 120 of
the Indian Evidence Act, 1872.
23. If the plaintiff is alive, competent and capable of deposing, she must enter
into the witness box herself. Her husband can only depose as a witness if he
had independent personal knowledge. If he was supporting her version, without
being a party or attorney holder, his testimony has limited evidentiary value. As
such, an adverse inference can be drawn against the plaintiff for not entering
into the witness box as per the judgment of the Hon’ble Apex Court in
12
(2005) 2 SCC 217
29
Dr.GRR, J
ccca_169_1994
Vidhyadhar v. Manikrao & Another (cited supra). As such, this point is
answered accordingly against the appellant – plaintiff.
24. POINT No.2:
Whether the suit filed by the plaintiff for recovery of possession alone
is maintainable?
The plaintiff filed the suit seeking the relief of recovery of possession
alone and not sought for any declaration of title. It was the contention of the
defendants that when there was a cloud over the title of the vendor of the
plaintiff, the suit for recovery of possession alone was not maintainable without
seeking the relief of declaration of title.
25. As seen from the written statement filed by the defendants 1 to 3, they
contended that the alleged vendor of the plaintiff Akbarunnisa Begum had no
right, title or interest over the suit schedule property at any point of time and
that she could not convey any better interest in respect of the suit schedule
property to the plaintiff. Neither the plaintiff nor her vendor were at any time in
possession and enjoyment of the suit schedule property and there was no
question of dispossession of the plaintiff from the suit schedule property. The
defendant No.4 also filed his written statement contending that the question of
dispossessing the plaintiff from the suit property never arose, as the plaintiff had
no manner of right, title or interest to the property belonging to the defendants.
30
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ccca_169_1994
26. Thus, the defendants raised a cloud over the title of the vendor of the
plaintiff and contended that the vendor of the plaintiff who had no title could
not pass a better title to the plaintiff.
27. When the plaintiff had ownership over the suit schedule property and
when her title was not seriously disputed and when he or she was dispossessed
and if the ownership of the plaintiff was admitted or not seriously contested, a
simple suit for possession is maintainable without seeking declaratory relief. A
person without title, but in lawful possession can also sue for possession under
Section 6 of the Specific Relief Act, 1963, if he was dispossessed without
following due process of law, as there is no need to prove his ownership and
possession itself is sufficient under the above Section. If the possession follows
from derivative title like lessee, licensee, mortgagee, they can sue for possession
based on their possessory right alone without seeking the relief of declaration of
ownership. A tenant, who was wrongfully evicted can file a suit for possession
without seeking any declaration because the right to possession flows from
tenancy. But, however, when title is seriously disputed or clouded and when the
defendants sets up rival title and the plaintiff’s title is not clear and it was
contended that the plaintiff was never in possession of the suit schedule
property and the plaintiff had not filed the suit basing solely on prior possession,
filing a bare suit for possession is not maintainable without seeking the relief of
declaration.
31
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28. The Hon’ble Apex Court in Annamalai v. Saraswathi 13 held that when
the title is in serious dispute and cannot be established without a declaration, a
bare suit for possession is not maintainable.
29. As the suit was filed by the plaintiff basing on her title placing reliance
upon Ex.A1 registered sale deed executed in her favor by her vendor and when
the defendants were raising a dispute over the validity of the title of the vendor
of the plaintiff, the plaintiff ought to have amended the suit seeking the relief of
declaration of title apart from the relief of recovery of possession.
30. Learned counsel for the respondents relied upon the judgment of the
Hon’ble Apex Court in Muddasani Venkata Narsaiah (dead) per LRs v.
Muddasani Sarojana (cited supra), wherein the Hon’ble Apex Court while
considering the question whether it was necessary to seek the relief of
declaration of title, held that:
“The plaintiff has filed the suit for possession on the strength of
title and not only on the basis of prior possession. It was not a
summary suit for ejectment filed under Section 6 of the
Specific Relief Act, 1963. Thus, plaintiff could succeed in suit
for possession on the strength of the title.
13. We are fortified in our aforesaid conclusion by a decision
in Kurella Naga Druva Yudaya Bhaskara Rao v. Galla Jani
Kamma [(2008) 15 SCC 150], wherein this Court has
examined the question of maintainability of suit for possession13
AIR 1960 Madras 36
32
Dr.GRR, J
ccca_169_1994without prayer for declaration of title. This Court has referred
to its earlier decision in Anathula Sudhakar v. P. Buchi
Reddy [(2008) 4 SCC 594], wherein the plaintiff had
purchased the suit land under registered sale deed dated
10.4.1957 and the defendant did not claim the title with
reference to any document but claimed to have perfected title
by adverse possession. It was held by this Court that the said
plea did not prima facie put any cloud over the plaintiff’s title
calling him to file suit for declaration of title. Unless there is
serious cloud over the title of the plaintiff there is no need to
file suit for declaration of title. The suit for possession was
maintainable. This Court laid down as follows:
“16. The plaintiff had purchased the suit land
under registered sale deed dated 10.4.1957.
Defendant did not claim title with reference to
any document but claimed to have perfected title
by adverse possession. A mere claim by the
defendant that he had perfected his title by
adverse possession, does not mean that a cloud
is raised over plaintiff’s title and that the plaintiff
who is the owner, should file a suit for
declaration of title. Unless the defendant raises a
serious cloud over the title of the plaintiff, there
is no need to file a suit for declaration. The
plaintiff had title and she only wanted
possession and therefore a suit for possession
was maintainable. We are fortified in this view
by the following observations of this Court
in Anathula Sudhakar v. P. Buchi
Reddy (2008) 4 SCC 594:
“14. We may however clarify that a prayer for
declaration will be necessary only if the denial
33
Dr.GRR, J
ccca_169_1994of title by the defendant or challenge to
plaintiff’s title raises a cloud on the title of
plaintiff to the property. A cloud is said to raise
over a person’s title, when some apparent defect
in his title to a property, or when some prima
facie right of a third party over it, is made out or
shown. An action for declaration, is the remedy
to remove the cloud on the title to the property.
On the other hand, where the plaintiff has clear
title supported by documents, if a trespasser
without any claim to title or an interloper
without any apparent title, merely denies the
plaintiff’s title, it does not amount to raising a
cloud over the title of the plaintiff and it will not
be necessary for the plaintiff to sue for
declaration. ….”
31. In the present case, the defendants were also claiming title basing upon
the registered sale deeds and were contending that their vendor Khaja
Moinuddin had filed a claim petition against one Birbhangirji and Akbarunnisa
Begum (vendor of the plaintiff) and the Court allowed the claim petition of
Khaja Moinuddin and held that Khaja Moinuddin was the owner of the land in
Survey No.107 and the said judgment is binding on Akbarunnisa Begum
(vendor of the plaintiff). As such a serious cloud was raised by the defendants
over the title of the vendor of the plaintiff. As such, the plaintiff ought to have
filed a suit for declaration apart from seeking the relief of recovery of
possession. Since the plaintiff failed to convert the suit seeking the relief of
declaration of title inspite of the pleadings of the defendants, who raised a cloud
34
Dr.GRR, J
ccca_169_1994
over the title of the plaintiff, the suit filed by the plaintiff seeking the relief of
recovery of possession alone is not maintainable.
32. POINT No.3:
Whether the plaintiff is able to prove her possession over the suit
schedule property till May 1978 and was entitled to claim the relief of
recovery of possession from the defendants 1 to 4 or their LRs?
As the plaintiff is contending that she was in possession of the property
and that she was dispossessed by the defendants 1 and 2 in May, 1978, the
burden lies upon her to prove the said fact.
33. Section 101 of the Indian Evidence Act, 1872 states that the burden of
proving a fact lies upon the person, who asserts it. The Hon’ble Apex Court in
Rangammal v. Kuppuswami and Others (cited supra), held that:
“14. Section 101 of the Indian Evidence Act, 1872 defines
`burden of proof’ which clearly lays down that whosoever
desires any court to give judgment as to any legal right or law
dependent on the existence of facts which he asserts, must
prove that those facts exist. When a person is bound to prove
the existence of any fact it is said that the burden of proof lies
on that person. Thus, the Evidence Act has clearly laid down
that the burden of proving fact always lies upon the person who
asserts. Until such burden is discharged, the other party is not
required to be called upon to prove his case. The court has to
examine as to whether the person upon whom burden lies has
been able to discharge his burden. Until he arrives at such
35
Dr.GRR, J
ccca_169_1994conclusion, he cannot proceed on the basis of weakness of the
other party.”
34. The husband of the plaintiff was examined as PW.1. He stated that he
purchased plot Nos.285 and 286 comprising an area of 1776 square yards as
against the pleadings in the plaint that the plaintiff purchased an open land
admeasuring 1776 square yards in Survey Nos.85 and 86 situated at Akbar
Bagh, Malakpet, Hyderabad from Akbarunnisa Begum, D/o.late Nawab Huzur
Yar Jung under a registered sale deed on 21.08.1965 for a sum of Rs.2,000/-.
He stated that he applied for permission for construction to the Municipal Office
and obtained permission vide Ex.A3. But he had not stated about constructing
of any house by the plaintiff in the suit schedule property. He only stated that in
the year 1978 in the month of May, the defendants forcibly occupied the land
purchased by the plaintiff taking advantage of plaintiff’s absence.
35. In his cross-examination, he stated that he did not remember in respect of
which plots he had taken permission and vaguely stated that it could be plot
Nos.285 and 286. He stated that he applied for permission for the plot numbers,
which were mentioned in the sale deeds and that it was in the year 1965, he
obtained permission. He stated that a sanction plan was also issued along with
permission, but he did not remember whether the original permission and
sanction plan were filed in the Court. He stated that the original permission,
which was obtained in the year 1965 was lost.
36
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ccca_169_1994
36. PW.1 stated that defendants 1 to 3 were in possession since 1978, but
could not say in how much land they were in occupation. He stated that they
lodged a police complaint. But the police did not come. He did not know
whether the complaint was filed in the Court or not. He approached the
Advocate for issuing notice, but after taking time for about one year, the
Advocate returned all the papers and he did not know whether the Advocate
issued notice or not to the defendant.
37. Thus, no proof was filed by the plaintiff for lodging the police complaint
or issuing any notice to the defendants seeking to vacate the property. PW.1
admitted that there was a building over the suit schedule property, which was
constructed by defendants 3 and 4. He could not say in how much area it was
constructed but admitted that the said building was constructed in the year 1967.
It has got Municipal No.16-2-147/55-56. The house was standing in the names
of defendants 3 and 4. He admitted that previously there was no number for the
suit schedule house.
38. The admissions made by PW.1 were fatal to his case. When he was
admitting that a building was constructed in the year 1967 by defendants 3 and
4 and a house number was allotted to it at that time and there was no number for
the suit schedule house earlier, his stating that they were dispossessed in May,
1978 proves to be incorrect.
37
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ccca_169_1994
39. In his further cross-examination. PW.1 admitted that in Ex.A1 sale deed
Survey Nos.85 and 86 were mentioned. But it was plot Nos.285 and 286, but
not the survey numbers. In 1987, he got rectification of the mistakes crept in
Ex.A1 in respect of survey number as plot number. In Ex.A1, Survey Nos.85
and 86 were corrected as plot Nos.285 and 286. 10 years after filing of the suit
he got corrected the sale deed. He denied that by the time of getting the
rectified sale deed, defendants 1 and 2 constructed their house 20 years prior to
it.
40. Thus, there were no correct plot numbers in the sale deed purchased by
the plaintiff and the same were corrected 10 years after filing of the suit. When
the defendants had already constructed houses in the said plots making
corrections in her sale deed about the plot numbers subsequently raises a strong
suspicioin over the identity of the property. No document was filed by the
plaintiff to prove her vendor’s title or possession over Survey No.107 (old) (new
Survey No.134). On the other hand, the defendants relied upon Ex.B6, order in
claim petition, which would disclose that Khaja Moinuddin filed the claim
petition against the father of the plaintiff’s vendor and the said claim petition
was allowed. The said judgment in Case No.18/2 was marked as Ex.B6 and the
translation copy was marked as Ex.B7. The said judgment became final. When
the decree against the plaintiff’s vendor’s father has become final in respect of
land in Survey No.107 (old) (new Survey No.134), the plaintiff cannot claim
38
Dr.GRR, J
ccca_169_1994
title for the very same land. Once the decree is passed against any person, the
same is binding. Without challenging the same, filing the suit is barred by res
judicata.. The judgment in the claim petition marked as Ex.B6 is binding on
Akbarunnisa Begum and the plaintiff herein. The plaintiff who has claimed title
from Akbarunnisa Begum cannot claim better title than that of Akbarunnisa
Begum.
41. The plaintiff relied upon Exs.A14 to A16, more particularly, Ex.A14
judgment which was the common judgment dated 18.06.1983 in
C.C.C.A.No.146 of 1979 and S.A.No.759 of 1983, wherein the Court
categorically held at page No.32 of the Judgment that the disputed land was not
part of old Survey No.107 (new Survey No.134). No credence can be placed on
Ex.A4 judgment as the subject matter of the said judgment does not relate to the
land in Survey No.107 (old) (new Survey No.134). When the entire dispute was
with regard to identification of the property, the plaintiff failed to file any
sanction plan or failed to take any steps to demarcate, localize the suit schedule
property by way of appointing an Advocate Commissioner.
42. The suit schedule property is an open plot admeasuring 1776 square
yards. Even if the plots of the defendants 1 to 3 and 4 were put together, the
extent is not more than 960 square yards i.e. 730 square yards of defendants 1 to
3 and 230 square yards of defendant No.4. Thus, the plaintiff must be in
39
Dr.GRR, J
ccca_169_1994
possession of the balance extent of the property. However, the plaintiff failed to
show that she was in possession of the balance extent of the property also.
43. The evidence of PW.2, the building material supplier is to the extent that
when he supplied the material, PW.1 was residing in the site in asbestos and tin
sheets and he supplied two lorries of stone and moram to the site situated at
Akbar Bagh. The said evidence is no way useful to decide the title, ownership
or possession of the property.
44. As rightly contended by the learned counsel for the respondent No.8 – LR
of deceased defendant No.4, the suit was originally filed against defendants 1
and 2. The defendants 3 and 4 were subsequently impleaded as per the order
dated 11.07.1979. But the appellant – plaintiff failed to bring the consequential
amendments as per Rule 28 of Civil Rules of Practice. Admittedly, there were
no pleadings against defendants 3 and 4 that they had dispossessed the plaintiff
and occupied the suit schedule property. There was no pleading to show that
the H.No.16-2-147/55 constructed on plot No.237 was part of the suit schedule
property. In the absence of such pleading, it was not open for the plaintiff to
say that the property of the defendant was part of the suit schedule property.
45. The evidence adduced by defendant No.4 would disclose that the
defendant No.4 purchased the property under registered sale deed and the
vendors of defendant No.4 originally purchased Plot No.237 in the year 1961
40
Dr.GRR, J
ccca_169_1994
and subsequently K.Ratna Reddy, predecessor-in-title of defendant No.4
obtained permission in the year 1965 and constructed a house. Therefore, the
question of any dispossession of the plaintiff in respect of plot No.237 would
not arise. When there was no pleading against defendant No.4, no relief can be
granted against defendant No.4.
46. The plaintiff cannot take advantage of the weakness of the case of the
defendants. The plaintiff has to prove her case basing on the strength of her
own pleadings and evidence adduced by her to prove her title and possession
over the suit schedule property. Whether the recitals in the sale deed of
defendants were vague, incomplete, and ambiguous are not valid considerations
to decide the suit. When the plaintiff failed to prove her case, the suit is liable
to be dismissed. There is no necessity to decide the aspect whether the suit
schedule property claimed by the plaintiff and the suit schedule property
claimed by the defendants are one and the same or distinct and different, as the
plaintiff had not sought for the relief of declaration of title. Even in a suit for
declaration of title, the burden heavily lies upon the plaintiff to prove that he or
she has a valid title over the suit schedule property and the case could not be
decided basing upon the weakness of the case of the defendants. As such, this
Court does not consider any necessity to re-frame any issue or to remand the
matter to the trial court.
41
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ccca_169_1994
47. The Hon’ble Apex Court in Union of India and Others v. Vasavi Co-
operative Housing Society Limited and Others (cited supra), held that:
“In a suit for declaration of title, the burden always lies on the
plaintiff to make out and establish a clear case for granting such
a declaration and the weakness, if any, of the case set up by the
defendants would not be a ground to grant relief to the plaintiff.
The legal position, therefore, is clear that the plaintiff in a suit
for declaration of title and possession could succeed only on the
strength of its own title and that could be done only by
adducing sufficient evidence to discharge the onus on it,
irrespective of the question whether the defendants have proved
their case or not. Even if the title set up by the defendants is
found against them, in the absence of establishment of the
plaintiff’s own title, the plaintiff must be non-suited.”
48. Learned counsel for the respondents 12 to 14 (the LRs of respondent
No.3) also relied upon the judgment of the Hon’ble Apex Court in
A.Subramanian & Others v. R.Paneerselvam (cited supra), on the same
aspect.
49. As the plaintiff failed to prove her possession over the suit schedule
property till May 1978, which was the alleged date of her possession, she was
not entitled to claim the relief of recovery of possession from the defendants 1
to 4.
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Dr.GRR, J
ccca_169_1994
50. Point No.4:
Whether the suit is barred by limitation?
As point No.2 is answered holding that the plaintiff ought to have filed
the suit seeking the relief of declaration of title and that the suit for recovery of
possession alone is not maintainable without seeking the relief of declaration,
when her vendor’s title was in cloud, the suit has to be filed within 3 years when
the right to sue first accrues as per Article 58 of the Schedule to the Limitation
Act, 1963. The right to sue first accrues when the plaintiff had the cause of
action to seek the declaration.
51. As PW.1 admitted that the defendants 3 and 4 constructed a building in
the suit schedule property in the year 1967 itself, the plaintiff’s possession was
admittedly disturbed by the said date itself. The plaintiff filing the suit stating
that she was dispossessed in May, 1978 appears to be only to bring the suit
within the period of limitation claiming the relief of recovery of possession
alone. Not seeking the relief of declaration of title and only seeking the relief of
recovery of possession appears to be to bring the suit under Article 65. The
admission in cross-examination is crucial and unless explained will go against
the plaintiff’s case. It can be considered as substantive evidence and can be
relied upon as it goes against the pleadings. As the documents filed by the
defendants would disclose that the defendants or their predecessors in interest
43
Dr.GRR, J
ccca_169_1994
were in possession of the property since 1961 onwards, the suit was barred by
limitation even under Article 65.
52. Section 27 of the Limitation Act, 1963 deals with extinguishment of right
to property. It states that if a person is barred from instituting a suit for
possession of any property due to the expiration of the prescribed limitation
period, their right to that property is extinguished. As such, if someone fails to
sue to recover their property within the time limit, they loose their ownership
rights. It is a consequence of not acting within the prescribed time and applies
to cases where a person is seeking to recover possession of property. It is not
only a procedural right, but a substantive right having the effect of
extinguishing ownership over the property. This Section is an exception to the
general principle that Law of Limitation only bars the remedy but not the right.
As such, the plaintiff’s right over the suit schedule property was also
extinguished and the plaintiff has to be non-suited on the said ground.
53. Point No.5:
To what relief?
In the result, the C.C.C.A is dismissed confirming the judgment of the
learned V Additional Judge, City Civil Court, Hyderabad in O.S.No.531 of
1982 in dismissing the suit.
No order as to costs.
44
Dr.GRR, J
ccca_169_1994As a sequel, miscellaneous applications pending in this appeal, if any,
shall stand closed.
____________________
Dr. G.RADHA RANI, J
Date: 17.06.2025
Nsk.