ORDER
C.V. Ramulu, J.
1. This Civil Revision Petition is filed under Article 227 of the Constitution of India being aggrieved by an Order dated 14-2-2005 passed in I.A. No. 30 of 2004 in A.S. No. 17 of 2003 on the file of the learned Senior Civil Judge, Gudur, Nellore district.
2. None appears for the respondent in spite of service of notice through Court as well as by the learned counsel for the petitioner.
3. The petitioner is the plaintiff in O.S. No. 114 of 1995 on the file of the learned Junior Civil Judge, Sullurpet, which was filed for declaration of title and recovery of possession and also for past and future rents. The respondent-defendant filed a written statement resisting the suit and stating that it is true that the plaint schedule land is the ancestral land of the plaintiff. However, he stated that he purchased the said land under an agreement of sale dated 8-6-1985 executed by the plaintiff, for a valuable consideration of Rs. 8,000/-. The said agreement of sale was duly attested by N. Jagannadha Reddy and E. Krishna Reddy and since then, he is in possession and enjoyment of the suit land as an absolute owner and not as a tenant of the plaintiff. During the pendency of the suit itself, the respondent-defendant filed a petition in I.A. No. 231 of 1996 seeking amendment of the written statement. The respondent-defendant also stated that since the price of the land had been increased, the plaintiff demanded him to pay Rs. 4,000/-, but he refused. Thereafter, the plaintiff filed a petition before the Mandal Revenue Officer alleging that he has not executed the sale deed and sought for cancellation of the mutation effected in his name. After enquiry, the Mandal Revenue Officer passed orders and such orders cannot be questioned in the suit (now it is brought to the notice of this Court that against the order passed by the Mandal Revenue Officer, the matter was carried in appeal and the same was allowed by the Revenue Divisional Officer. Further this was confirmed in the revision by the District Collector). However, the suit was decreed as prayed for. Challenging the same, the plaintiff filed an appeal being A.S. No. 17 of 2003. The appeal had come up for hearing on 10-3-2004 and it was adjourned to 17-3-2004. At that stage, the present I.A. No. 30 of 2004 was filed under Order VI Rule 17 of the Code of Civil Procedure to permit the defendant to amend the pleadings in the written statement for the second time before the appellate Court, i.e. to add the following paragraphs.
6(a) Plaintiff has no locus stand! to seek declaration of title or recovery of possession, eviction or arrears or rent. Title of the plaintiff suffered as extinction when the suit property as claimed by plaintiff in para 4 that 'the suit land was given to her tentatively for maintenance' which fact, by the operation of Section 14(1) of the Hindu Succession Act transformed Lakshmamma to become the absolute owner of the plaint schedule property and having thus matured into a absolute owner Smt. P. Lakshmamma alone has the capacity, competency to recover possession. Title once thus acquired by operation of law cannot be extinguished by unilateral acts of parties resulting in the plaint schedule land being put to back in the possession of the plaintiff, which act of alleged putting in plaintiff in possession would not secure for plaintiff any right in the plaint schedule property. The compromise divorce decree may at best bring about the dissolution of the marriage. The decree concerned itself with the property as well and the decree is not registered before the Registrar of Assurances and by the bar contained in Section 17 of the Registration Act, consent and oral acts of parties cannot create title. Decree not being registered, the only manner in which plaintiff can secure title can only be by the execution in favour of the plaintiff of a relinquishment deed which advisedly procedure was not adopted. In law, the said Lakshmamma continues as the owner of the property even after the decree. Her title acquired by operation of law is not extinguished and the contention of the plaintiff that the defendant continues in possession is misconceived. Defendant submits admittedly plaintiff has been out of possession from 1972 since when as a trespasser this defendant continued in possession and plaintiff had forfeited his right to recover possession by prescription, which matured defendant as owner of the plaint schedule property even against Lakshmamma.
6(b) Admitting the contentions of the plaintiff to be true without, however, conceding thereto, Thonduru Lakshmamma having statutorily matured is owner of the plaint schedule property by the operation of Section 14(1) of the Hindu Succession Act. Admittedly, as per the contentions even of the very plaintiff, she alone is competent to seek recovery of possession of the plaint schedule property from the defendant and by inaction has even lost and forfeited such rights over the plaint schedule property, defendant acquiring title by long and uninterrupted possession for over the statutory period and Lakshmamma has forfeited her rights by inaction thus procuring ownership to defendant.
6(c) Even accepting the contention that the defendant continues to be tenant, which defendant vehemently denies, a suit for recovery of possession would fail without a valid quit notice as per the mandates of Section 106 of the T.P. Act, tenancy is terminable with a six months quit notice expiring with the end of the year of the tenancy. The mandate of Section 106 is thus not adhered to, but ignored, on the contra, routes and branch. Hence, on this ground also the suit of the plaintiff is liable to be non suited and the suit is liable to be dismissed. In making this submission, defendant pleads this, as an alternative defence, but does not concede the tenancy attributed to him at all. He is a rank trespasser having matured into the owner of the very plaint schedule property by long, continuous and uninterrupted possession and enjoyment and prays for dismissal of the suit.
The said I.A. No. 30 of 2004 was heard in March, 2004, but orders were delivered on 14-2-2005 allowing the application. Aggrieved by the said order, the present Civil Revision Petition is filed.
4. Heard the learned counsel for the petitioners.
5. It is interesting to notice that during the trial, D.W.2 deposed that the defendant purchased the suit schedule lands form P. W. 1 on 8-6-1985 and Ex.B-7 was executed and he was present at the time of execution of Ex.B-7. On that day, D.W.1 paid Rs. 8,000/- to P.W.1 towards sale consideration of the suit schedule lands. He also signed as one of the attestors in Ex.B-7. One Krishnareddy, P.W.1, D.W.1 and another person brought by P. W. 1 were present at the time of execution of agreement of sale. After execution of Ex.B-7, they went to the plaint schedule property and it was measured and handed over by P.W.1 to D.W.1. Since then D.W.1 is in possession and enjoyment of the plaint schedule property. The defendant filed Xerox copy of the agreement of sale dated 8-6-1985. it is his case that he is in possession of suit land as an absolute owner by purchasing the same under the agreement of sale and also obtained pass book from the competent authority, which was issued after due enquiry, and as such, he is not a tenant under the plaintiff; therefore, the plaintiff is not entitled for the relief of declaration of title and for his eviction and also for rents, both past and future. It was further asserted by the defendant that the plaintiff himself came to the suit land, got measured it in relation to the boundaries and handed over possession of the land to him under the agreement of sale dated 8-6-1985. It was also asserted by him that the plaintiff himself asked for purchase of the land through his relations near the suit land. The plaintiff himself stood as an attestor for Exs.B-1 and B-2 - sale deeds - under which he purchased the land of plaintiff's nephew. In his evidence as D.W.1, he denied that he is a lessee of the plaintiff for the suit land since 1985 and he paid maktha to plaintiff at the rate of Rs. 1200/-per annum until 1992. He also deposed that until he purchased the suit land in 1985. the plaintiff himself cultivated the same through farm servant-one Nadipaiah of Chenigunta. Having said so, during the pendency of the appeal, the above amendment was sought for the second time setting up altogether a different case. There was not even a whisper in the original written statement or in the written statement amended for the first time during the pendency of the suit that he was in adverse possession of the suit schedule property and perfected title by adverse possession. For the first time, this application was filed during the pendency of the appeal, which definitely, changes the very nature of the pleadings as well as the assertions and denials made by the parties althrough the trial in the suit. The pleas based on agreement of sale and adverse possession are mutually inconsistent and the latter does not begin to operate unless former is renounced. This is nothing but to make out a ground for remanding the matter back to the trial Court for reconsideration of the suit. This is not a pure question of law as pleaded by the respondent-defendant or as found by the learned Senior Civil Judge. Adverse possession is a matter of evidence and it cannot be proved unless and until there is a positive evidence to that effect. In the absence of any pleading in the original written statement or in the earlier amended written statement, such pleadings would definitely cause prejudice to the interest of the petitioner-plaintiff.
6. In this regard, the learned counsel for the petitioner relied upon a decision of the Apex Court reported in Arundhati Mishra v. Sri Ram Charitra Pendey : (1994)2SCC29 wherein it was held as under:
4. The question, in this case, is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. The pleas based' on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is his own case that he came into possession of the suit house in his own right and remained in possession as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never renounced his title nor admitted the title of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant's acquiescence to it. Therefore, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging/or acquiescing the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never raised by him. Only on receipt of the first notice, he denied title of the appellant and made it known to him for the first time through the reply notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explanation for the belated plea was given. Even assuming that the reply dated March 15, 1971 constitutes assertion of adverse possession, the limitation would start running against the appellant only from March 15, 1971 and not earlier. The suit was filed in 1978 within 12 years. Under these circumstances the High Court is not justified in permitting the respondent to raise the plea of adverse possession....
The ratio laid down in the said case is squarely applicable to the issue raised in this revision. I am of the considered opinion that the learned Senior Civil Judge grossly erred in allowing the amendment of the Written statement with such pleas. Neither it is permissible under the law nor it is desirable in the interests of justice.
7. Accordingly, the Civil Revision Petition is allowed and the impugned Order is set aside. I.A. No. 30 of 2004 in A.S. No. 17 of 2003 on the file of the learned Senior Civil Judge, Gudur shall stand dismissed. There shall be no order as to costs.