N.T. Hanumanthappa, J.
1. These two appeals are filed challenging the common judgment and decree dated 2-3-1988, passed by the learned Subordinate Judge. Asifabad in appeals A.S. No. 17/85 and A.S. No. 18/85, wherein the learned Subordinate Judge set aside the judgment and decree passed by the District Munsiff, Luxettipet in O.S. No. 1138/84 on 30-8-85.
2. S.A. No. 401/88 was filed by the first defendant in the suit, whereas S.A. No. 429/88 was filed by the 2nd defendant in the suit. Both the appeals are clubbed and disposed of by a common judgment. The rank of the parties in these appeals referred as in the trial court.
3. The plaintiffs filed the suit for declaration of title and for permanent injunction, over the suit schedule property.
4. A few facts which are necessary to dispose of these two appeals are as follows:- One Venkateswara Rao was the owner of the Plot measuring about 29 guntas situated in S. No. 87 of Mancherial. Venkateswara Rao had two more sons, namely, Ramgopal Rao and Satyanarayana Rao. The third plaintiff is the son of Ramgopal Rao. In the year 1951, Venkateswara Rao obtained permission from the Town Committee, Mancherial for construction of a go down in the plot in question, which was subsequently renewed in the year 1954. In the year 1956 he obtained permission to fence the said plot. In the year 1952 Venkateswara Rao dug and constructed a well in the said plot and he also erected a hut in the said plot on the south-western side. He put up a lime grinder near the well for the purpose of constructing a go down. During his life time, Venkateswara Rao constructed go down up to roof level. The said constructions were existing on the date of filing of the suit. A number was given to the structures as 2-1-19 and the name of Ramgopal Rao was shown in the municipal records as owner and possessor of the said plot. After the death of Ramgopal Rao in the year 1955, the plot and structures mutated in the name of Satyanarayana Rao, the second son of Venkateswara Rao, till his death in the year 1973. During the life time of Satyanarayana Rao the plot was renumbered as 2-3-76. However after the death of Satyanarayana Rao, in the year 1974, the plot was again renumbered as 7-49 and 7-50. The plaintiffs and their predecessors-in-title have been in possession of the plot in question since about 1353 Fasali, paying taxes regularly. S.No. 87 originally a Poramboke land of Garimalla village . A major portion of Mancherial town is situated in the said S. No. 87. Due to successive deaths in family, first in the year 1955 the death of Ramgopal Rao, followed by his father's death in 1959 and later the death of Satyanarayana Rao in the year 1973, construction of go down could not be completed, but they continued to remain in possession of the property. One Fareeduddin was able to secure 'kabala' from the municipality in or about the year 1960 in respect of a portion of the above plot to an extent of 150ft x 62ft. The municipality had no right whatsoever to issue 'kabala', as it was not the owner. As on the date of issuing 'Kabala' the plaintiffs were the owners in possession of the land and shown in the municipal records entered into to that effect. As such issuing of kabala to Fareeduddin was not binding. Though kabala was issued, possession was not handed over to Fareeduddin. Defendants 1 and 2, claiming that they purchased the plot in question from the vendees of Fareeduddin, is of no consequence. In the year 1979, the municipality had permitted the first plaintiff to lay roof and slab in the existing walls of the go down and the plan sanctioned by the municipality shows the location of go down, hut and well in the plot in question. Defendants 1 and 2, even though aware of the fact that they did not acquire any right on the plot in question, as at no the Fareeduddin had a right or ownership over the property, not only attempted to deny the plaintiff's right over the property, but even with a view to create the documents in their favour, instituted a suit in O.S. Nop. 435/79 in the Court of District Munsiff, Luxettipet against the municipality and Government for declaration of their title. The said suit was filed colluding with the municipal staff. The area claimed in the said suit measures about 155ft x 62 ft. When the plaintiffs came to know of the filing of the suit they wanted to implead themselves by filing I.A. 100/79,forimpleading them as defendants. But the said application was dismissed by the trial court on 27-3-80 and within four days then onwards, the suit was decreed. They obtained decree so hurriedly, with a view to deprive the plaintiffs from their lawful possession of the property. However the decree obtained in O.S. No. 435/79 not binding on the plaintiffs as they were not the parties.
5. The plaintiffs further pleaded that apart from their being in possession of the property as owners by continuous possession of the scheduled property, openly peacefully in their own right as owners for more than, 12 years subsequent to issuing of kabala, have perfected their title to the disputed property by adverse possession. Plaintiffs, apprehending that the third defendant Municipality may accord permission to the defendants 1 and 2 to construct, in view of the decree obtained by them in O.S. 435/79 against the Municipality, also sought for injunction against the defendants.
6. Defendants 1 and 2 filed written statement. They admitted the relationship of the plaintiffs. They denied the ownership of the property, earlier to Venkateswara Rao and subsequently inherited by his sons, Ramgopal Rao and Satyanarayana Rao and later by the plaintiffs. They denied the existence of any hut or lime-grinder in the suit property. According to them the schedule property was a Government land, situated in S.No. 87of Garemilla village. Four plots were made out of S.No. 87 and they were put for auction. Plot No. 4 was purchased by Fareeduddin in court auction for a sum of Rs. 125/-. Municipality issued kabala to Fareeduddin. Fareeduddin in turn sold half portion of the said plot on the western side to Subba Rao. As there were some differences in extent, a rectification deed was made on 13-2-1961. Subba Rao again sold this property to one Y. Sobhanadri under a registered sale deed. From the said Sobhanadri, the first defendant purchased the said property under a registered sale deed dated 16-6-1972. From that date the first defendant was in possession of the said portion. The notice issued by the Tahsildar, Luxettipet in file No. A4/6016/1976 for eviction of the first defendant from the said plot under Revenue Recovery Act was incorrect and the same subsequently dropped. The eastern half portion of the plot measuring 62 ft x 771 /2 ft was purchased by Vanamala Malliah from Fareeduddin on 12-1-1961. A rectification deed was made on 8-2-1961. After the death of Vanamala Mallaiah, his son Easwar sold the said plot to the 2nd defendant on 3-5-61 and inducted him into possession of the land. The name of the 2nd defendant mutated in the municipal records. The site which was earlier bearing No. 2-3-75/2 was renumbered as 7-50/1. The plaintiffs or their predecessors in title were never in possession of the property. They have no title or legal rights to the property No cause of action for the suit. The suit has been under valued. For the above reasons sought the suit be dismissed.
7. Third defendant filed a separate written statement. It is stated in the written statement that it is not aware of the relationship of the plaintiffs. Denied that Venkateswara Rao was the owner of the plot. Admitted that Venkateswara Rao obtained municipal permission during the year 1951, but the said permission not related to the suit property. Denied construction of hut or setting up of lime-grinder at the suit site. Admitted that major portion of Mancherial village situated in S.No. 87. The suit site was originally described as Plot No. 4. There was no collusion between the municipality and the 2nd defendant in getting O.S. No. 435/79 decreed against the municipality. Plea of adverse possession is not tenable when the plaintiffs never in possession of the property. Contending thus, sought for dismissal of the suit.
8. On the basis of the pleadings, the trial court framed the following issues:
1. Whether the plaintiffs are owners of the suit site?
2. Whether the plaintiffs are in possession of the suit property on the date of filing of the suit?
3. Whether the plaintiffs have perfected title by adverse possession to suit site?
4. Whether the suit is under-valued and court fee paid is insufficient?
5. Whether the plaintiffs are entitled to declaration of title and injunction?
6. To what relief?
9. In support of rival contentions, both the parties gave evidence, both oral and documentary. On plaintiffs' side five witnesses were examined including Plaintiff No. 1 as P.W. 1 and produced nearly 83 documents, marked as Exs. A-l to A-83. On defendants' side, six witnesses were examined, including the first defendant as D.W. 1 and produced 34 documents, marked as Exs. B-1 to B-34. Exs. C-l to C-4 were marked for Commissioner.
10. Trial court considered the entire evidence both oral and documentary and found that the plaintiffs have no title over the suit property, but they wre in possession of the same, holding that possession follows title and on that ground the suit in respect of the site purchased by the first defendant was dismissed, and the suit with regard to the eastern half of the suit site claimed by the second defendants was decreed and permanent injunction against the 2nd and 3rd defendant was granted holding that the plaintiffs are in possession of the same throughout and the 2nd defendant has neither title over the suit property, nor possession of the same.
11. Aggrieved by the dismissal of the suit as against the first defendant the plaintiff filed an appeal in A.S. No. 18/85 before the Subordinate Judge, Asifabad for the relief that the suit as against the first defendant shall be decreed; whereas the 2nd defendant filed an appeal in A.S. No. 17/85 before the same court, aggrieved by the decree of permanent injunction granted by the trial court against him.
12. In A.S. No. 18/85 the plaintiffs contended that they were in possession of the entire extent throughout. Their predecessors proved their continuous possession prior to issuing of kabala by the 3rd defendant to Fareeduddin. When the trial court accepted this fact, tax receipts, non-agricultural tax receipts, pahani patriks faisal patties etc., to hold that the same cannot be held against the first defendant, quite arbitrary and erroneous. Finding of the trial court, in the alternative, on plaintiffs' perfecting their title by adverse possession not satisfactory. Trial Court failed to notice that the plaintiffs can maintain a suit for permanent injunction against all, except the true owner. Trial court erred in not noticing that mere issuing kabala, does not confer any right, likewise no right was conferrd on Fareeduddin, that too when the property belonged to the Government and not to the Municipality. Any purchase of the land eilher by the first defendant or the 2nd defendant either from Sobhanadri or Easwar quite ineffective and not binding on the plaintiff. The trial Court failed to notice that as on the date of the alleged sale by Fareeduddin, either in favour of Sobhanadri or in favour of Mallaiah, he had no right or title to convey the property, as in spite of he being the highest bidder failed to deposit the requisite amount within the stipulated period from the date of auction.
13. The grounds of attck of the 2nd defendant in A.S. No. 17/85 as follows:-When the trial court gave a finding that the plaintiffs failed to prove title either by way of purchase or by acquisition of title by adverse possession, entire suit should have been dismissed, instead of maintaining injunction against the 2nd defendant. 2nd defendant was unable to get registered sale-deed as the vendor Easwar's father had passed away. The finding of the trial court contrary to the earlier orders passed by the trial court in I.A. No. 664/80.
14. During the course of arguments, the plaintiffs submitted that they will not claim any title to the suit property, either on the basis of lease or purchase, but they are claiming the title over the suit property, by way of adverse possession. It was contended that they are disputing the title of Fareeduddin over the suit property on the ground that though he was the highest bidder, but the sale made in his favour was vitiated in view of his failure to deposit the one-fourth of the bid amount within thirty days from the date of auction.
15. For the purpose of disposing of the appeal, the learned Subordinate Judge raised the following two points for consideration:
1. Whether the plaintiffs perfected their title to the suit property by adverse possession?
2. Whether the Kabala issued to Fareeduddin by Municipality, Mancherial does not confer any valid title on Fareeduddin in respect of the suit plot?
16. Though both the points are inter-linked, the learned Subordinate Judge took up each point for consideration separately. After reappreciating the entire evidence and going through the entire judgment of the trial court, including the findings given by the trial court and the reasons given to reach such a conclusion, he found that the approach of the trial court in not properly considering the alternative plea of the plaintiffs that they have perfected their title by way of adverse possession, so also the rejection to grant permanent injunction against the first defendant, incorrect. He found that the plaintiffs not only proved their possession over the property, they established that their possession is continuous, open, peaceful and to the knowledge of others, for a period of more than 12 years. As such they have perfected their title over the suit property by way of adverse possession. By thus observing, he held that the plaintiffs perfected title over the suit property by adverse possession, whereas Kerala issued by the Municipality to Fareeduddin did not confer any valid title on Fareeduddin in respect of the suit property. So holding by his common judgment dated 2-3-1988 allowed A.S. No. 17/85 (sic. 18/85) and dismissed A.S. No.17/85. In the result, decreed the suit O.S. No. 1138/84 on the file of the District Munsif, Luxettipet with costs,
17. Aggrieved by this common judgment and decree, defendants 1 and 2 filed S.A. No. 401/88 and S.No. 429/88 respectively.
18. In S.A.No. 401 /88, according to the appellant, the substantial questions of law that arises for consideration, are as follows:-
(i) The plaintifs claimed title on three inconsistent and irreconcilable pleas, namely, (i) claimed ownership and title in themselves, (ii) claimed as lessees under Ex.A-73, and (iii), claimed adverse possession against the defendants. The plaintiffs cannot plead in plaint directly inconsistent, opposite and irreconcilable claims, and having lost the suit on the questions of (i) own title and (ii) as a lessee under Ex.A-73, cannot succeed as adverse possessors.
(ii) The area of 29 guntas in S.No. 87, the total extent of which is Ac. 128-22 guntas, as claimed under faisal-patties and pahanies on the basis of which adverse possession is claimed by the plaintiffs was not identified by any of the documents produced by the plaintiffs. As such in the absence of specific identification and boundaries, the claim of adverse possession as against the defendants cannot be established.
(iii) that the faisal-patties and revenue records show that the sons of Venkateswar Rao (not the plaintiffs) were recorded as 'asamis' against whom sivai-jamabandi, i.e., penalty .was imposed and collected from them. Whether the persons who pay penalty to the Government can claim adverse possession and also the persons who are recorded as 'asamis' can claim adverse possession without impleading the Government as party to the suit. Can a declaratory decree for title be granted to the plaintiffs without impleading the Government as a party when admittedly the alleged 29 guntas in S.No. 87 is the Government land.
(iv) That the defendants were recorded as owners and occupiers of their respective plots and municipal Nos. were given according to the municipal records right from 1961 onwards till date and admittedly the suit lands are situate within the municipal limits and vest in municipality. As such, whether the municipal records assume importance or the revenue records assume importance in considering the possession of the respective claimants. According to the municipal records, the defendants are in possession and as such, whether the plaintiffs are entitled to a declaration of title on the basis of adverse possession without themselves being in possession on the date of the suit.
19. In S.A. No. 429/898, the substantial questions of law, according to the appellant, are,-
(i) the lower appellate court misconstructed and misapplied the law relating to adverse possession,
(ii) the sub-court erred in rejecting the petition I.A. No. 323/87 filed by the 2nd defendant for admitting additional evidence and this has vitiated its eventual conclusions,
(iii) the view of the lower appellate court that the sale in favour of Fareeduddin is a nullity is incorrect. The 3rd defendant municipality which issued the Khabala Ex. B-21 supporting the title of the defendants. The municipal records show tht the suit site is in the name of the defendants and municipal taxes were being regularly paid, and
(iv) the Sub-judge completely missed the point that in the case of a vacant site possession follows title.
20. In addition to the substantial questions of law, raised in the memorandum of appeal, Sri Pratap Reddy, learned counsel for the first defendant and Sri T. Anantha babu, learned senior counsel for the 2nd defendant urged that the plaintiffs' plea is unsustainable in the sense that they firstly pleaded that they are the owners of the land by virtue of Venkateswara Rao's purchasing the suit property, alternatively they were in possession of the land as lessees and lastly pleaded that they have perfected their title over the property by way of adverse possession. Courts below failed to take into consideration such an inconsistancy in the pleas. Giving a finding on adverse possession, when the plea itself is vague and imprecise quite incorrect. Finding of the courts below contrary to evidence given. The fact that the possession by way of lease can never be adverse, not considered. When each plea is contrary to the other plea of the plaintiff, the very case of the plaintiff is destroyed. Lower Court instead of generalising the principle of adverse possession should have scrutinised the evidence an given a correct finding on adverse possession. Courts below should have noticed that temporary acts of possession will not give rise to adverse possession. To give a finding that the kabala that was given to Fareeduddin by the municipality not a valid one, as Fareeduddin failed to deposit with the municipality within thirty days, the requisite amount, is quite unwarranted, as such a plea was not taken by the plaintiffs. There is no evidence to show that Fareeduddin did not pay the stipulated amount to the municipality within time. Placing reliance on Andhra Pradesh (Telangana Area) Land Revenue Act, quite incorrect.
21. Learned counsel for the appellants, thinking that there is inconsistancy in pleadings and evidence of the plaintiffs, placed reliance on a case reported in B. Sahu v. R.G. Das : AIR1972Ori211 for the principle that in case of such inconsistancy, there cannot be any decree.
22.-To support their contentions on various propositions formulated, learned counsel on both the sides placed reliance on the following decisions.
23. In State of A.P. v. Fakrubf (1962(1) ALT 494 = AIR 1962 A.P. 518) this court while dealing with the elements to prove adverse possession, held as follows:
The question whether possession was adverse or not is often one of fact, but it might also be a contusion of law, or a mixed question. XXXX XXXXXX XXX
A party, who sets up a title by adverse possession, has to affirmatively prove his or her possession for over the statutory period and presumptions and probabilities cannot be substituted for evidence. Adverse possession has to satisfy necessarily the tests of adequacy, continuity, exclusiveness and publicity. The party, who asserts this, has necessarily to bear out his case with reference to these necessary elements. To say that when enjoyment for over 50 years was accepted, it would be tantamount to an enjoyment for over 60 years is wrong. The law cannot be interpreted that way.
24. In S.M. Karim v. Bibi Sakina : [1964]6SCR780 , the Supreme Court, while dealing with similar question, held as follows:-
The alternative case that the title of the person purchasing benami in Court auction was extinguished by long and uninterrupted adverse possession of real owner is open to the later to make if his possession is disturbed. If the possession of the real owner ripens into title under the Limitation Act and he is dispossessed, he can sue to obtain possession, for he does not then rely on the benami nature of the transaction. But the alternative claim must be clearly made and proved. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.
25. In Mr. Bhago v. Deep Chand (AIR 1964 Punjab 187) while dealing with the question as to what is adverse possession, the High Court of Punjab held that-Mere possession, however long, does not necessarily mean that it is adverse to the true owner. Adverse posssession really means a hostile possession which is expressly or impliedly in denial of the title of the true owner, and in order to constitute adverse possession, the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.
26. Reliance placed on M.M.. Lad v. Mohamadrasu (AIR 1971 Mysore 139) for the proposition that use of land temporarily will not create a title in the person using as such, by way of adverse possession.
27. In A. Venkateshwarlu v. M..M.. Mosque : AIR1972AP132 this Court held that, -
It is one of the fundamental requirements of prescription of title by adverse possession that the adverse possessor should assert a title in himself openly and in derogation of the title of the true owner for a continuous period of twelve years.
28. Reliance is placed on Premendu Bhusan v. Sripati Ranjan : AIR1976Cal55 , for the principle that there cannot be title by way of adverse possession where a person admits title of the true owner or where the house stands in the name a squatter or trespasser, for the reason that no length of mere squatting possession is a good defence in a suit for possession by the true owner.
29. When plaintiff admitted certain things, particularly as to possession and his right to continue as such, the admission shall become substantive evidence of the fact. To support this contention, reliance is placed on Union of India v. Moksh Builders & Financiers : [1977]1SCR967 .
30. It was lastly contended when the plaintiffs case is that the site in question earlier a Government poramboke and they set up the plea of perfecting their title by adverse possession, apart from proving that they have been in possession of the same for more than statutory period, they must not only plead, but establish the same in the presence of the true owner. In the instant case the Government is the owner, but the plaintiffs for the reasons best known to them have not impleaded the Government as a party, as such the suit was hit by nonjoinder of parties.
31. In K.C Alexander v. Nair Service Society Ltd. : AIR1966Ker286 the Kerala High Courtheld that possession will always follow the title. Possession of a true owner for some time would not extinguish the title of all earlier possessory owners so as to entrench a subsequent trespasser and given him good title against all but the true owner.
32. Thus arguing, Sri C.R. Pratapreddy and Sri T. Ananthababu learned senior counsel for the appellants in both the appeals, urged that appeals be allowed and the plaintiffs' suit be dismissed.
33. As an answer to these contentions, Sri J.V. Suryanarayana Rao, learned senior counsel for the plaintiffs argued that the judgment and decree of the lower appellate court a well considered one, reasons given quite just and regarding adverse possession, the lower appellate court made an elaborate discussion with reference to evidence available, and held the same as proved. When once a conclusion has been reached after appreciating the evidence, the scope to interfere under Section 100 C.P.C. is very much limited. According to him, the substantial questions of law, as pointed out in both the appeal memoranda, do not deserve any consideration, as the said questions were in one way or the other, raised before the lower appellate court and have been answered.
34. He maintained that though the plaintiffs pleaded that they are the owners of the property, by purchasing the same in this name of Murali Manohar, but the said sale transaction was a benami, made in favour of Venkateswara Rao, the father of plaintiffs 1 and 2, and also pleaded lease including adverse possession, but later on gave up the first two contentions and stuck to adverse possession. At no time there was any incbnsistancy. On the other hand, all these things were pleaded in the plaint. There was no inconsistency at any stage. Plaintiffs proved their case that they have perfected their title to the suit property by way of adverse possession apart from giving oral evidence, by producing voluminous docurutfiuary evidence, which were maintained by competent authorities and entries made while discharging official duties like faisal patties, pahani patrikas, non-agricultural tax receipts, sanction plan, extract of property tax and letters addressed by the Tahsildar calling upon the parties to vacate the premises etc. Thoguh the defendants pleaded that they are in possession of the property by virtue of their purchasing the same from Sobhanadri and Eswaraiah, but as per the averments, Fareeduddin, purchased it in a public auction, no little was passed nor possession was delivered, as he failed to deposit the bid amount within time, a stipulated under Clauses 3 and 4 or Section 36 of the Andhra Pradesh Revenue Recovery Act. Reliance is placed on K. Laxma Reddy v. S. Burfjamuddin Hussain (1976 (2) An.W.R. 157 =1976 (2) APLJ 34), for the principle that failure to deposit the bid amounts in time by the auction purchaser nullifies the sale. The lower appellate court took into consideration the conduct of Easwariah the alleged vendor of the 2nd defendant who was working as an Executive Officer of the municipality and possibility of his manipulting the documents, including other circumstances, namely Fareeduddin selling the property, both the western and eastern sides, within a few days from the date of his obtaining the Khabala. Further getting the suit 0.5. No. 435/79 filed against the municipality, decreed within three days from the date of rejection of plaintiffs' impleading petition. He also maintained that at no time Government objected plaintiffs' possession and enjoyment of the property, as such there was no necessity for the plaintiffs to make Government a party to the proceedings. The objection only by the defendants 1 to 3, as such they have been made parties. Government was not a necessary party to the proceedings, as such the suit not hit by non-joinder of necessary parties, as contended by the defendants. According to him the possession of the plaintiffs is open, continuous, peaceful and to the knowledge of others, that too for more than the statutory period, and not acts of temporary innature so as to defeat the plaintiffs' title over the property.
35. To support his contentions, Sri J.V. Suryanarayana Rao, learned senior counsel for the plaintiffs relied upon the following decisions, which in fact were cited and referred to by the lower court.
36. Secretary of State v. Bommadavara Denkata Narasitnha Naidu( AIR 1920 Mad. 295) for the principle that,-
Where the true owner of land, having the opportunity to acquaint himself with all the facts and the law and not being led in to any error by the fraud of a party, sees that party openly, enjoying trie land and claiming it as owner, the true owner cannot, in order to arrest limitation, plead ignorance of the law which made him unaware of his right to possession.
37. In Nizam Din v. Ali Mohd. (AIR 1927 Lah. 753), the Lahore High Court held as follows:-Though ordinarily speaking the doctrine of constructive possession cannot be used in favour of trespasser, nevertheless, in a case where the plot in dispute, forms part of a larger plot with defined boundaries over which later plot there have been physical acts of ownership in portions and where there has been an assertion of title over the whole plot throughout, such circumstances are relevant evidence as to the possession of the waste land.
38. In Azahagaperumal Pillai v. Rasa Pillai(AIR 1932 Mad. 310) While dealing with the effect of limitation for adverse possession, the Madras High Court held that neither the decision of the survey officer nor the planting of stones in accordance with it in proceedings under the Act dispossess any party nor could it make any legal break in existing possession so as to render ineffective for purpose of limitation any adverse possession running at its date.
39. In Hafiz Mohammed Fateh Nasib v. Sir Swarup Chand Hukum Chand (AIR 1948 P.C 76), the Privy Council held that,-
The correct test to be applied in the case of adverse possession of land, a part of which is let out to tenants and part of which is vacant, is whether the plaintiff who claimed title by adverse possession, for a period of 12 years or more exercised such dominion over the propery as to justify the inference of fact that he was in possession of the whole. It is not necessary that he should prove affirmatively that he had actually been in physical possession of every square inch of the land but it should be considered whether the acts of possession which had been proved would legitimately show that the plaintiff had enjoyed dominion over this property in the manner in which such dominion is normally exercised.
40. In Anjali Devi v. Simmy Linga Szvamy (1985 (3) APLJ 83), this Court, while dealing with the question of burden of proof in a suit for possession based on title perfected by way of adverse possession, held as follows:-
Article 65 of the Limitation Act positively puts the burden on the person setting up the plea of adverse possession when the suit is for possession based on title. That burden would never shift on to the plaintiff. It is always for the defendant who sets up the plea of adverse possession to establish what he perfected his title by adverse possession by remaining continuously and uninterruptedly in possession for a period of 12 years without let or hindrance by the real owner.
41. In Padmamma v. Parvathamma (1987 (2) ALT 188 = 1987 (2) APLJ 204), this Court while dealing with the effect of pendency of suit on the plea of adverse possession, held that,-
Mere pendency of suit with regard to title or rectification of revenue records does not exclude the running of period of limitation with regard to adverse possession.
Thus arguing, he submitted to dismiss the appeals.
42. Since the plaintiffs have confined only for the relief to declare that they have perfected their title to the suit schedule property by adverse possession, which was denied by the defendants on the ground that they are the owners by virtue of their purchasing the same under sale deeeds, the Court has to consider who is right and how far and the basis for it.
43. It is the case of the plaintiffs that since 1353 Fasli either their predecessors-in-titie or themselves are in posession of the land in question. It is stated that the said property stood in the name of Ramgopal Rao, the eldest son of Venkateswara Rao and later, on his death, it was mutated on the name of Satyanarayana Rao, the second son of Venkateswara Rao. To prove their possession, plaintiffs produced exhibits like faisal-patties, pahani patrikas, property tax receipts, demand notices, non-agricultural tax receipts, sanction plans, notices given by revenue authorities under land encroachment Act. All the witnesses on behalf of the plaintiffs have spoken about plaintiffs' possession and enjoyment of the property for more than statutory period, including as on the date of filing of the suit. They have further stated that at no time the defendants or their vendors were in possession of the suit property.
44. To take first, faisal patties, namely Exs. A-l to A-11 for the years 1950, 1951,1954,1955,1958-59,1959-60, and 1960-61 respectively, they show the name of Ramgopal Rao as the owner of the land. Ex.A-1 shows the extent of land as Ac.25 and in other documents area mentioned as 29 gts. Ex. A-9 to A-11 show the name of Satyanarayana Rao and Extent as 290 guntas. So also Sy.No. as 87. The pahani patrikas contain the name of either Ramgopal Rao or Satyanarayana Rao, right from 1343 Fasli. Exs A-12 to 20 are the pahani patrikas, for the period from 1962-63 to 1973-74, which reveal the name of Satyanarayana Rao as the person in possession of the property and the extent of the land as 29 guntas. Exs. A-21 to 34 land revenue receipts from 1966 to 1975, standing in the name of Satyanarayana rao. Exs A-36 to 38 are the sanction plans by the municipality, given to the plaintiffs family for construction on the site of 29 guntas. Ex. -39 to 61 are the property tax receipts from 1966 till 1979, showing that plaintiffs paid the tax in respect of the property in question.
45. As against this evidence, the evidence produced by the defendants is that Kabala. But when this documentary evidence is compared to the evidence given on behalf of plaintiffs, one thing is clear that there is some discrepancy regarding measurement and price of the site purchased. It is elicited from the evidence of D.W. 5, the vendor of the 2nd defendant, that at relevant time he was working as an Executive Officer of the Mancherial Municipality. It is plaintiffs case that at no time title to the schedule property was conveyed to Fareeduddin as he did not deposit the bid amount within the stipulated time. When no title was passed to Fareeduddin, and further as on the date of issuing Khabala the property in question was not vested in the municipality and on the other hand it was a Government poramboke and the authority to grant was only Government and not the municipality, neither issuing of khabala a valid one nor even if issued, the same nullified in view of not depositing the bid amount by Fareeduddin under clauses (3) and (4) of Section 36 of the Andhra Pradesh Revenue Recovery Act. The period between granting of khabala and selling of the property by Fareeduddin creats doubt. If really the municipality issued khabala because Fareeduddin was in possession of the property, no proper explanation why Fareeduddin was not examined when he was alive till 1983. Rejection of plaintiffs application in I.A. 200/79 in O.S. No. 435/79 does not act as res judicata as the said application was only for impleading the plaintiffs in the suit, which was rejected and within four days from that date namely on i 31-3-1980 the suit was decreed. Except trusting their oral evidence, the defendants did not produce any acceptable evidence to prove that they are in possession of the property. From the evidence produced, it is clear that plaintiffs never cancealed, on the other hand, they proved their adverse possesion. They established that their possession over suit schedule property as open, uninterrupted right from 1353 Fasli till the date of filing of the suit, peaceful and to the knowledge of others.
46. Existence of hut and lime grinder also spoken to by the witnesses. The possession of the plaintiffs was not a temporary one, on the other hand a permanent one for more than statutory period and to the knowledge of others. Otherwise there was no necessity for the authorities to give or issue notices under encroachment Act or for the plaintiffs to go on paying taxes etc. On considering the discussion, the conclusion reached by the learned appellate judge that plaintiffs and their predecessors in title were and have been in possession of the suit property along with site on its northern side openly, uninterruptedly and to the knowledge of the defendants, a correct one.
47. Further when Fareeduddin claimed title over the property by virtue of obtaining of kabala, the same was nullified in view of non-production of any documentary evidence to show that he remitted the bid amount within the prescribed time. The learned appellate judge was right in placing reliance on K. Laxtna Reddy v. S. Burhamuddin Hussain (10 supra) to hold that in case of non-deposit of the bid amount within statutory period, the entire sale proceedings will be nullified. Subsequent requests of Fareeduddin to Municipality to deliver possession of property, yet another factor to conclude that Fareeduddin did not deposit the bid amount within time and was not put in possession of the property. In view of the above position, the evidence produced established beyond doubt that plaintiffs proved their case that they have perfected their title to the property by way of adverse possession and at no time either the defendants 1 and 2 or their predecessors in title were in possession of the same and any transaction that took place between Fareeduddin and his subsequent vendees not acceptable.
48. Regarding the contention of the defendants that the suit not maintainable for non-joinder of necessary parties, it does not deserve any consideration, because firstly, the claim of the plaintiffs is against the defendants and not against the Government, secondly, at no time the Government objected plaintiffs' right to enjoy the property and lastly, if the Government feels that it is its property, it is always open for the Government to take action against the plaintiffs and it is not for the defendants to plead for the Government.
49. If the decisions cited by the defendants are perused carefully, they support the case of the plaintiffs, but not the case of the defendants. Defendants cited them thinking that they support their case.
50. Apart from this, grounds urged by the defendants in these two appeals donot require to be considered as the same grounds were urged before the lower appellate court and the same were considered and held against the defendants. The lower appellate court considered whatever evidence that was available.
51. Scope of Section 100 C.P.C. is very much limited. Because the measure of proof is within the domain of the court of fact, High Court under Section 100 C.P.C. has no jurisdiction either to reassess the evidence or will not justify to interfere with findings of fact reached by the lower appellate court based on proper appreciation of evidence.
52. It is time and again said that the second appeal is competent and maintainable only when it is made out that the orders under challenge in the second appeal suffer from an error in law or procedure. The court cannot entertain second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may be, as held by the Supreme Court in the case of Afsar Shaikh v. Soleman Bi Bi : [1976]2SCR327 . If there is no error of law in the finding of the Courts below, the second appellate jurisdiction of the High Court is not attracted, as held by the Supreme Court in Kishanlal Biharilal Maheswari v. Ramarao Hanwnant Rao Patil : AIR1981SC1183 . In State of U.P. v. Ram Chandra Trivedi : (1977)ILLJ200SC , the High Court of Allahabad High Court held that a second appeal cannot be entertained on the ground of erroneous finding of fact, however gross the error might seem to be. In the case of Padtnashree S.N.Swamy v. Smt. Gowramma : AIR1993Kant208 the Karnataka High Court laid down the principle that where the first appellate Court had considered the evidence by applying its mind independently and considered the reasoning of the trial court and thereafter gave its reasons for not aggreeing with the findings of the trial court, the finding of the first appellate court i sustainable and the same does not deserve to be interfered with. Interferance would have been justified if the finding reached by the lower appellate Court is erroneous, perverse or patently illegal or suffers from procedural illegality. Under Section 100 C.P.C. High Court can interfere only when it is made out that the findings given by the Court are vitiated by non-consideration of relevant evidence or the approach to decide the case quite erroneous. The High Court can also interfere when there is perversity in finding of fact or deliberate mistake either in collection or evaluation of evidence. So also when the findings reached are not based on any evidence or they are the result of surmises and conjectures. From the evidence, it is established that throughout plaintiffs alone are in possession of the property. This position has been clearly explained by the lower appellate Court, while appreciating the evidence. As such it is not proper to disturb such a finding of fact. In Ramaswamy Kalingaryar v. Mathayan Padayachi : AIR1992SC115 the Supreme Court held that the finding regarding sole possession of a party being a finding of fact, cannot be interfered with in second appeal.
53. Evidence produced by the parties, if tested with the principles laid down in various decisions referred to above, the only conclusion that can be drawn is that the plaintiffs proved their case that they have acquired title over the suit scheduled property, by way of adverse possession. Further they have been in possession of the suit schedule property and entitled to protect such possession against all, but the true owner. Whereas the defendants miserably failed to establish that either their vendors had any title over the property or ever in possession of the same to transfer and put the defendants in possession of both western and eastern portions respectively. Whereas the third defendant, which is a local authority, governed by the provisions of Municipalities Act, in the matters of granting permissions or licences etc., shall act according to the well-established principles of law. Any attempts to invade over the rights of others by incorrect exercise of powers conferred, is liable to be restrained.
54. Since the plaintiffs proved their case that they have perfected their title to the suit property by way of adverse possession and they have also proved that they have been in possession and enjoyment of the said property throughout, including immediately prior to the date of filing of the suit, they are entitled for permanent injunction, as the defendants have no right or title to the property or to enter upon the same, including to get any permission from the municipality to put up any construction or the municipality to grant such permission to defendants 1 and 2.
55. No substantial question of law involved in these appeals.
56. In the result, the appeals are dismissed, the common judgment passed by the learned Subordinate Judge, Asifabad in A.S. No. 17/85 and A.S. No. 18/85 dated 2-3-1988 confirmed, and the suit in O.S. No. 1138/84 on the file of the District Munsif, Luxettipet is decreed as prayed for. In the circumstances of the case, no costs.