Judgment:
COMMON JUDGMENT:
1. A.S. No.2071 of 1999 is filed against the judgment in O.S. No.26 of 1989 dated 10.06.1999 and A.S. No.2181 of 1999 is filed against the judgment in O.S. No.27 of 1989 dated 10.06.1999 passed by the learned Additional Senior Civil Judge, Eluru.
2. In both the appeals, the appellants are the defendants - Movva Venkateshwara Rao and Movva Mallikarjuna Rao, and the respondents are the plaintiffs. However, the plaintiffs in both the suits are different i.e. Vissampalli Chinna Ramaiah (died), Vissampalli Pitchaiah and Vissampalli Venkateshwara Rao are plaintiffs in O.S. No.26 of 1989 and Nallanti Gopaiah is plaintiff in O.S. No.27 of 1989.
3. For the sake of convenience, the parties are hereinafter referred to as they arrayed in the suits before the trial Court.
4. Since the appellants in both the appeals are one and the same and the issues involved are intertwined, they are being disposed of by this common judgment.
5. The brief facts of the appeals are as under:
(i) The son and grandsons (plaintiffs) of late Vissampalli Pitchaiah filed suit in O.S. No.26 of 1989, and son (plaintiff) of Nallanti Veeraswamy alias Abraham filed O.S. No.27 of 1989 on the file of Additional Senior Civil Judge, Eluru, seeking declaration of title, delivery of possession and permanent injunction for the respective suit schedule properties.
(ii) The claim of the plaintiffs in O.S. No.26 of 1989 is that the father of plaintiff No.1 and grandfather of plaintiff Nos.2 and 3 viz., Vissampalli Pitchaiah had purchased the suit schedule property admeasuring Acs.7-55 cents under various registered sale deeds and as they are living jointly, they have succeeded to the title of the schedule of property.
(iii) The claim of the plaintiff in O.S. No.27 of 1989 is that his father - Nallanti Veeraswamy alias Abraham had purchased the plaint schedule property admeasuring Acs.3-14 cents i.e. Acs.2-14 cents under two registered sale deeds and Ac.1-00 under a separate registered sale deed, took possession of the same and he had been in possession and enjoyment of the same till his death and thereafter he (plaintiff) has been in possession and enjoyment of the same.
(iv) That the defendants in both the suits are trying to interfere with the possession and enjoyment of the plaintiffs over their respective suit schedule property.
(v) The defendants filed their written statements denying the case of the plaintiffs; their case in O.S. No.26 of 1989 is that the father of plaintiff No.1 and grandfather of plaintiff Nos.2 and 3 namely late Vissampalli Pitchaiah was a farm servant of Meda Narasaiah and also trusted person of Narukulla Pitchaiah and Gutta Narasimham. Likewise, Nallanti Veeraswamy alias Abraham, who is father of the plaintiff in O.S.No.27 of 1989 was a farm servant of Gutta Narsimhamam. The said Vissampalli Pitchaiah, who said to have purchased the suit schedule property in O.S. No.26 of 1989, being a farm servant, was not in a position to purchase any land and pay sale consideration under the alleged seven sale deeds; that in fact the consideration was paid by his master Meda Narasaiah and also Narukulla Pitchaiah and Gutta Narasimham, and thus they purchased the schedule of property on the name of Vissampalli Pitchaiah. Accordingly, Nallanti Veeraswamy alias Abraham, who said to have purchased the suit schedule property in O.S. No.27 of 1989, being a farm servant, was not in a position to purchase any land and pay consideration under the alleged sale deeds; that in fact the consideration was paid by his master Gutta Narasimham and thus he purchased the schedule of property on the name of Nallanti Veeraswamy alias Abraham; that the extent of the suit schedule property is Acs.7.55 cents in O.S. No.26 of 1989 and it is part of Acs.10.69 cents, which is one block, and the remaining part of Acs.3-14 cents is the subject matter in O.S. No.27 of 1989; that late Vissampalli Pitchaiah, Nallanti Veeraswamy and the plaintiffs were never in possession of the suit schedule properties at any point of time. Further it is the case of the defendants that out of Acs.10-69 cents, they received Acs.4.29 cents by way of gift deed from the descendants of Meda Narasaiah and they purchased Acs.4.26 cents, which was in possession of Narukulla Pitchaiah, and Acs.2-14 cents from Gutta Narasimham under separate sale deeds.
6. Based on the pleadings, relevant issues were framed, both sides adduced their oral and documentary evidence and after hearing both sides and after elaborately considering the entire evidence on record, the trial Court decreed both the suits in favour of the plaintiffs.
7. That prior to filing of the suits, both the parties were claiming possession over the suit schedule properties; that there were criminal proceedings also between the parties which went up to filing of Criminal R.C Nos.192 and 193 of 1979 on the file of this Court (High Court) and the said Criminal R.Cs. were allowed and the accused therein, who are the defendants herein, were acquitted by order dated 27.1.1981 holding that since they were in possession of the suit schedule properties, trespass and causing damage to the same do not arise. Thereafter, O.S. No.145 of 1981 was filed by the defendants against the plaintiffs in the present suits and others seeking perpetual injunction, but as they failed to file necessary documents to prove their case, it was dismissed. As against the said dismissal, an appeal in A.S. No.97 of 1983 was preferred by the defendants on the file of Additional District Judge, Eluru and the same was allowed by judgment dated 11.7.1986 and against the same S.A. No.560 of 1986 was preferred by the plaintiffs before this Court (High Court) and after hearing both sides and considering the material on record, it was dismissed by judgment dated 30.9.1988. Thereafter, the present suits were filed by the plaintiffs on 20.1.1989 for declaration of title, delivery of possession and for permanent injunction in respect of the suit schedule properties and the same were decreed in their favour. Challenging the same, the present appeals are preferred.
8. It is the case of the defendants in O.S. No.26 of 1989 that the father of plaintiff No.1 and grandfather of plaintiff Nos.2 and 3 namely late Vissampalli Pitchaiah was a farm servant of Meda Narasaiah and also trusted person of Narukulla Pitchaiah and Gutta Narasimham. Likewise, Nallanti Veeraswamy alias Abraham, who is the father of the plaintiff in O.S. No.27 of 1989 was a farm servant of Gutta Narsimhamam. The said Vissampalli Pitchaiah, who said to have purchased the suit schedule property, being a farm servant, was not in a position to pay any sale consideration under the alleged seven sale deeds, and, in fact, the sale consideration was paid by his master Meda Narasaiah, Narukulla Pitchaiah and Gutta Narasimham. Accordingly, Nallanti Veeraswamy alias Abraham, who said to have purchased the suit schedule property, being a farm servant, was not in a position to pay any consideration under the alleged sale deeds, and, in fact, the sale consideration was paid by his master Gutta Narasimham; that the extent of the suit schedule property is Acs.07.55 cents in O.S. No.26 of 1989 and it is part of Acs.10.69 cents, which is one block, and the remaining part of Acs.3-14 cents is the subject matter in O.S. No.27 of 1989; that late Vissampalli Pitchaiah, Nallanti Veeraswamy and the plaintiffs were never in possession of the suit schedule properties at any point of time much less for the last 54 years. Further it is the case of the defendants that out of Acs.10-69 cents, they received Acs.4.29 cents by way of gift from the descendants of Meda Narasaiah and they purchased Acs.4.26 cents from Narakulla Pitchaiah, and Acs.2-14 cents from Gutta Narasimham under separate sale deeds and from then they were in uninterrupted possession.
9. Further, it is the case of the defendants that in view of the judgments in A.S. No.97 of 1983 and S.A. No.560 of 1986, whereby and whereunder permanent injunction was granted in respect of the schedule of properties in favour of the defendants and against the plaintiffs by decreeing the suit in O.S.No.145 of 1981, and since the possession follows title, the present suits in O.S. Nos.26 and 27 of 1989 are not maintainable as they are hit by the principle of res judicata. Further, the suits are barred by limitation as they are filed on 20-01-1989, by which time, the defendants had perfected their title to the schedule of properties by adverse possession. However, the trial Court erroneously decreed both the suits holding that the defendants have not produced any document in support of their title though they are in possession of the schedule of properties in spite of the fact that they arein possession of the suit schedule properties for the last 54 years and thereby they have perfected their title by adverse possession.
10. In the above background of the case, this Court has to reconsider the issues that were decided by the trial Court and see whether the trial Court has committed any error or irregularity in giving findings thereon.
RESJUDICATA:
11. The case of the defendants is that the documentary evidence that was sought to be considered in the present suits i.e. O.S. Nos.26 and 27 of 1989 was already considered in O.S. No.145 of 1981, which was filed by the defendants, and basing on the same, the first appellate Court - Additional District Judge, Eluru had allowed the appeal and decreed the suit for perpetual injunction and the same was confirmed by this Court in S.A. No.560 of 1986. The documents, which were marked in O.S. No.145 of 1981, were also marked in the present suits and thus they were already considered and a finding was given thereon, as such, referring and considering the same documents again in the present suits between the same parties for the same property amount to res judicata, however, the trial Court erroneously held that the suits are not hit by the res judicata. That the trial Court ought to have seen that the first appellate Court while allowing A.S. No.97 of 1983, whereby the suit in O.S. No.145 of 1981 was decreed, has already considered the circumstances under which the defendants (plaintiffs therein) could be granted permanent injunction, and the same was confirmed in S.A. No.560 of 1986 by this Court; and that the plaintiffs having suffered a decree in O.S. No.145 of 1981 are not entitled to initiate the present suits in O.S. Nos.26 and 27 of 1989 as the same are hit by the principle of res judicata. However, the trial Court finding that the suit in O.S. No.145 of 1981 was for permanent injunction and not for declaration of title, whereas the present suits are for declaration of title, brushed aside the contention that the suits are hit by the principle of res judicata. It is the case of the defendants that the trial Court in spite of considering the ratio laid down in Mahboob Bi Saheb and others v. Shaik Abdul Razak Saheb (died) per L.Rs. and others 1998 (2) ALT 277, held that the suits are not hit by the principle of res judicata, as such, the distinction made by the trial Court is improper.
12. Per contra, the case of the plaintiffs is that their respective predecessors had purchased the suit schedule property covered by O.S. No.26 of 1989 in 1936 and the suit schedule property covered by O.S. No.27 of 1989 in 1939 and 1957 for valuable consideration under various registered sale deeds, took possession of the same and from then they are in continuous possession and enjoyment thereof, as such, they are claiming their title over the schedule of properties by filing the present suits. The present suits are not hit by the principle of res judicata since the earlier suit in O.S. No.145 of 1981 filed by the defendants was for mere injunction and not for title and wherein the question of title was also not even gone into either substantially or incidentally. The case of the defendants that since the documents considered in O.S. No.145 of 1981 are also marked in the present suits, as such, again referring and considering the same between the same parties amount to res judicata, is baseless.
13. While deciding the issue of res judicata, the trial Court held at paragraph No.29 of the impugned judgments as under:
As pointed out earlier, the trial court as well as the first appellate court framed only one issue viz., whether the plaintiffs are entitled for injunction as prayed for. The title was not in issue either directly or substantially in OS.No.145 of 1981. The title has not been gone into even incidentally also, either by the trial court or by the first appellate court. The Hon’ble High Court dismissed the appeal of the appellants (defendants) holding that no substantial question of law was involved in the mater. When the title was not directly and substantially in issue and when issue has not been even incidentally gone into, it cannot be said that the decision rendered in OS.No.145 of 1981 operates as respondent judicata. The decisions rendered in Potturi Saraswathi’s case 1985(1)ALT-1, Pothula Rama Rathnamma’s case 1998 (1) ALT-271, D.Narasimharao’s case 1998 (2) ALT-213(DB) and Mahboob Bi Sahab’s case 1998(2) ALT-277 are distinguishable on facts and they are not applicable to the facts of the present case. The decision rendered by the Hon’ble Supreme Court in Sulochana Amma’s case AIR 1994 SC-152 is not helpful to the defendants and on the other hand, it is helpful to the plaintiffs. Having regard to the above discussion, I hold that the decision rendered in OS.No.145 of 1981 by the appellate courts does not operate as resjudicata. Accordingly, this issue is answered in favour of the plaintiffs and against the defendants.
14. For the sake of better appreciation, it is appropriate to reproduce the Provisions of Section 11 of CPC, which are as under:
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
15. A perusal of the record shows that O.S. No.145 of 1981 was filed by the defendants seeking decree for permanent injunction, and to grant the same or not the only issue framed by the Court therein was that “whether the plaintiffs (therein) are entitled to permanent injunction?”, and there is no issue as to question of title.
16. It is settled law that while giving a finding on any issue specifically dealing with, if the Court gives a finding incidentally on other issue, the same is binding on the parties. A perusal of the judgments in A.S. No.97 of 1983 dated 11-07-1986 by which O.S. No.145 of 1981 was decreed and the judgment in S.A. No.560 of 1986 dated 30-09-1988 by which the judgment in A.S. No.97 of 1983 was confirmed, and also the judgment in O.S. No.145 of 1981 dated 03-08-1983, clearly reveals that there is no discussion or finding with regard to title of the parties to the schedule of property, which is subject matter in the present suits, either substantially or incidentally. Therefore, it cannot be said that since the Court in O.S. No.145 of 1981 had considered all the documents including Exs.A.1 to A.6 marked on behalf of the plaintiffs in O.S. No.26 of 1989 and Exs.A-1 to A-3 in O.S. No.27 of 1989, the provisions of Section 11 of CPC are attracted, as it is not the documents, but it is the issue that is required to be the same in the earlier suit as per the provisions of Section 11 of CPC. No doubt the issue in O.S. No.145 of 1981 was about permanent injunction between the same parties for the same property, but the present suits are for declaration of title, possession and consequential injunction. Hence, the provisions of Section 11 of CPC do not attract at all. Absolutely, either this Court (High Court) or the first appellate Court in S.A. No.560 of 1986 and A.S. No.97 of 1983 respectively arising out of O.S. No.145 of 1981 between the same parties in respect of the schedule of properties have not gone into the question of title even incidentally. Therefore, the decision in the earlier suit for injunction and consequent appeals does not amount to res judicata since the issue of title was not an issue in the earlier suit and the same was not even gone into incidentally.
17. Further, the facts in O.S. No.145 of 1981 are different as it was filed seeking bare injunction. In the said suit, there was no possibility of raising the issue of title incidentally or otherwise, as such, the question of title cannot be said and / or deemed to have been the issue substantially in such suit, and therefore, the prudence dictates that the rule of constructive res judicata cannot be applicable.
18. Furthermore, the provisions of Section 11 of CPC are applicable if the issue in the earlier suit and in the subsequent suit are one and the same and between the same parties litigating under the same title in a Court competent to try such subsequent suit in which the said issue has been heard and finally decided in the earlier suit. In the instant case, the issue involved in the earlier suit and the subsequent suit are different and distinct and in the earlier suit the question of title was not gone into incidentally also, as such, the provisions of Section 11 of CPC are not applicable though the documents filed by both sides in the earlier suit and the subsequent suits are one and the same.
19. The explanation IV to Section 11 of CPC which is known as constructive res judicata in legal parlance cannot be considered, as the suit in O.S. No.145 of 1981 was filed seeking mere injunction, wherein the title was not in issue. The only question in the said suit was as to who was in possession of the suit schedule property on the date of filing of the suit. It is not the case of the defendants (herein) that their title to the suit schedule property was in issue in that suit and that an issue was framed as to the title and no finding was given by the Court to that effect.
20. That in a given case, while appreciating the facts in issue, the Court may incidentally go into the issue of title, though the same is specifically not an issue in that case, and even on recording a finding thereof, explanation IV to Section 11 CPC comes into play. However, that is not the case in O.S. No.145 of 1981 since the trial Court never had an opportunity to discuss and / or appreciate on the issue of title even incidentally also.
21. According to Section 11 of CPC, no Court shall try a suit or issue in which the matter directly or substantially in issue in a former suit between the same parties in a Court competent to try such subsequent suit in which such issue has been subsequently raised and has been heard and finally decided by such Court. Accordingly, since the issue of title was not an issue in the earlier suit and not gone into either substantially or incidentally, explanation IV to Section 11 of CPC does not come to the rescue of the defendants.
22. Thus, it is clear that an issue which was already decided by a competent Court between the same parties for a property in an earlier suit cannot be gone into again in a subsequent suit between the same parties for the same property. However, in the present case, the issue involved is with regard to title and the issue decided in the earlier suit between the same parties for the same property is with regard to mere injunction, where the question of title was not even gone into incidentally.
23. Accordingly, while dealing with the decision of the Apex Court in SULOCHANAMMA v. NARAYANA NAIR AIR 1994 SC 152, wherein it was held that in a suit for injunction based on title in issue directly and substantially in a subsequent suit basing on title between the same parties operates as res judicata, the trial Court, on examination of oral and documentary evidence adduced by both parties to know whether the decision rendered in O.S. No.145 of 1981 operates as res judicata, and considering all the relevant exhibits with regard to the issue concerned, rightly distinguished the said decision since in the present suits, the question of title was not an issue and not even gone into incidentally also in the earlier suit, as such, the said decision is in favour of the plaintiffs.
24. That even admitting, for the sake of arguments, that the trial Court had gone into the question of title and it had given a finding thereof incidentally and the parties are bound by the same, it is a fact that the defendants (plaintiffs herein) in O.S. No.145 of 1981 never had an opportunity to adduce evidence in support of their title and since the same is not in dispute, the plaintiffs could not be prevented from filing the present suits seeking declaration of title to the schedule properties with all consequential reliefs.
25. Therefore, this Court is of the view that the trial Court rightly held that though the decision in O.S. No.145 of 1981 was between the same parties in respect of the same schedule of properties by considering the same documents, the present suits in O.S. Nos.26 and 27 of 1989 are not hit by the principle of res judicata since the issue involved in the present suits was not an issue in the earlier suit and the same was not even gone into either directly or incidentally.
ADVERSE POSSESSION and LIMITATION:
26. It is the case of the defendants that Meda Narasiah, Narukulla Pitchaiah and Gutta Narsimhamam had purchased the suit schedule properties under various registered sale deeds on the names of the predecessors of the plaintiffs, who are their farm servants and trusted persons, and that they were in possession of the same from 1936 and the original sale deeds were also with them, as such, the plaintiffs could not file the same and they have filed only certified copies of them.
The legal representatives of Meda Narsaiah had gifted Acs.4-29 cents to the defendants in 1961 as they are their relatives and the remaining land of Acs.4-026 cents was purchased by them from Narukulla Pitchaiah and Acs.2-14 cents from Gutta Narsimham, totalling to Acs.10-69 cents, which is one block, in 1961 and out of the same, Acs.7.55 cents is subject matter of O.S. No.26 of 1989 and Acs.3.14 cents is of O.S. No.27 of 1989. That Meda Narasaiah, Narukulla Pitchaiah and Gutta Narsimhamam were in possession of the suit schedule properties from 1936 to 1961 and thereby they perfected their title by adverse possession and thereafter the defendants are in continuous possession of the same without any interruption, as such, they had perfected their title by adverse possession for over and above the statutory period. It is also their case that their possession over the schedule of properties is open, exclusive and hostile animus to the plaintiffs from 03-05-1977, on which date, private complaints were filed against them by the plaintiffs, as such, their adverse possession shall be counted from that date onwards.
27. Further, it is the case of the defendants that while decreeing the suit in O.S. No.145 of 1981, it was observed that they are in possession of the schedule of properties from some years prior to 1977, as such, their possession over the schedule of properties adverse to the plaintiffs shall be counted from some years prior to 1977, but the trial Court did not consider the same. The trial Court considering the plea of adverse possession of the defendants, committed an error in counting the period of limitation from 3.5.1977, on which date proceedings were initiated in private complaints i.e. C.C. Nos. 320 and 321 of 1977 by the plaintiffs against the defendants, instead of some years prior to 1977 during which period the defendants were held to be in possession as held in O.S. No.145 of 1981. Further, the provisions of Section 14 of the Limitation Act are applicable only to those who have initiated the proceedings earlier and in the present case the proceedings were initiated by the defendants and not the plaintiffs, as such, the same does not come to the rescue of the plaintiffs for saving limitation, however, the trial Court erroneously held that S.A. No.560 of 1986 filed by the plaintiffs against the judgment in A.S. No.97 of 1983, which arose out of O.S. No.145 of 1981, was dismissed on 30.9.1988, as such, the time for prosecuting O.S. No.145 of 1981 i.e. from 26.11.1981 to 30.9.1988 has to be excluded, and therefore, as per Section 14 of the Limitation Act, the suits, which were filed on 20.01.1989 are within limitation. It is further the case of the defendants that Exs.B.16 and B.17- revenue receipts dated 1.3.1975 and Exs.B.18 and B19 - revenue receipts dated 24.1.1977 in O.S.No.26 of 1989 and Exs.B.8 and B-9 certified copies of the land revenue receipts dated 1-3-1975 and 24-1-1977 respectively in O.S.No.27 of 1989 show that the defendants are in possession of the suit schedule properties from 1.3.1975 onwards. Therefore, the present suits are clearly barred by limitation. Hence, the defendants’ case is that the trial Court has erred in not considering that the suits were barred by limitation and the defendants being in possession of the suit schedule properties right from 1.3.1975 onwards had perfected their title by adverse possession.
28. It is an admitted case by the defendants themselves that the schedule of properties were purchased by Meda Narasaiah, Narukulla Pitchaiah and Gutta Narasimham in the names of the predecessors of the plaintiffs as they are their farm servants and trusted persons. When it is so, the schedule of properties are in the names of the predecessors of the plaintiffs, then the question of selling and donating the same by Narukulla Pitchaiah, Gutta Narasimham and donating part of the same by the descendants of Meda Narasaiah in favour of the defendants does not arise, particularly in the absence of any document by which the defendants said to have come into possession of the schedule of properties and the same goes to the root of the defendants’ case that they have purchased the same and they are in possession of the same, much less, in adverse possession since 1961 or from 01-03-1975 onwards over and above the statutory period to the knowledge of the everyone including the plaintiffs. Apart from that, the plea of the defendants that Meda Narasaiah, Narukulla Pitchaiah and Gutta Narasimham had purchased the schedule of properties on the names of the predecessors of the plaintiffs is nothing but a plea that they have purchased the same as benami. However, the said plea of benami transactions fails as the same cannot be accepted since the defendants failed to produce the original sale deeds under which their predecessors said to have purchased the subject property as benami on the names of the predecessors of the plaintiffs and also the original sale deeds as well as the gift / settlement deed under which they (defendants) purchased the subject property and got part of the same by way of gift / settlement either in the present case or in the suit for injunction in O.S. No.145 of 1981. Thus the defendants failed to prove that their predecessors had purchased the subject property as benami on the names of the predecessors of the plaintiffs and they (predecessors of the defendants) were in possession of the same since then and thereafter, they (defendants) are in possession of the same, and thereby, they have also failed to prove their plea that they have perfected their title to the subject property by adverse possession.
29. The trial Court has referred the contentions raised by the learned counsel for the defendants observing that learned counsel made much fuss on Ex.B-1 private complaint that was given by the plaintiffs stating that on 03-05-1977 defendants had trespassed into their land, used force, pushed the plaintiffs down and not allowed them to set right the bunds, erased the bunds and caused loss of Rs.75/-. It is also observed by the trial Court that the bone of contention of the defendants was that 03-05-1977 should be taken as the date on which the possession of defendants become hostile and animus to the plaintiffs for the plaint schedule lands.
30. Presently the law in vogue is that the plaintiffs are required to prove their title in order to claim declaration of title but they need not prove their possession on the property in dispute for 12 years. However, the defendants, who are claiming adverse possession, are required to prove their continuous possession for 12 years before filing the suits since Article 65 of the Limitation Act contemplates that to prove adverse possession, one is required to prove his uninterrupted possession for more than 12 years over the subject property. But they failed to produce any documentary evidence in support of their case. Even they have not produced any document / sale deed under which they claimed to have purchased the schedule of properties. The present suits were filed on 20-01-1989. If the 12 years period is to be counted, it will go back to 20-01-1977. Therefore, the defendants are required to prove their continuous uninterrupted possession over the suit schedule properties from that date onwards. In this regard, the case of the defendants based on Ex.B-1 is that their adverse possession should be taken from 03-05-1977, which is stated to be hostile and animus to that of the plaintiffs. Even if that date, without admitting and for the sake of argument, is considered, as starting point for adverse possession / limitation, the 12 years period would be ended by 20-05-1989, whereas the present suits were filed on 20-01-1989, as such, they are well within limitation, even if the period during which the proceedings in O.S. No.145 of 1981 were prosecuted is not excluded. Therefore, it cannot be said that the defendants were in continuous and uninterrupted possession of the suit schedule property for more than 12 years prior to filing of the present suits and the same became hostile and animus to that of the plaintiffs since the same is not totally in compliance of the provisions of Article 65 of the Limitation Act.
31. On the other hand, Exs.A-1 to A-7 (in O.S. No.26 of 1989) and Exs.A-1 to A-3 (in O.S. No.27 of 1989) registered sale deeds under which the plaintiffs and their predecessors had purchased the schedule of properties establish their title and Exs.A-8 to A-14 (in O.S. No.26 of 1989) and A-4 to A-8 (in O.S. No.27 of 1989) adangals establish their possession, whereas defendants, who have relied on Exs.B-8, B-16, B-17 and B-9, B-18, B-19 land revenue receipts dated 03-01-1975 and 24-01-1977 respectively in O.S. No.26 of 1989 and Exs.B-8 and B-9 land revenue receipts dated 01-03-1975 and 24-01-1977 respectively in O.S. No.27 of 1989 for the previous eleven (11) years do not in any way prove their adverse possession over the schedule of properties since the defendants paid the land revenue under those receipts on one day for a period of 11 years at a time. Further, in Column No.3 of the land revenue receipt, the survey number of the land is mentioned as 519, which should be a patta number and not survey number, and that they have not filed any statement to show that the patta number mentioned in Exs.B-8, B-9 in both the suits and B-16 to B-19 in O.S. No.26 of 1989 land revenue receipts relate to the subject property. The defendants failed to produce land revenue receipts prior to 1971 and subsequent to 1977 and also adangal extracts to show that they have been in possession prior to 1971 and also 1977.
32. It is also the case of the defendants that according to Ex.B-8 dated 01-03-1975 and Ex.B-9 dated 24-01-1977 in both the suits and Ex.B-16 and Ex.B-17 dated 01-03-1975 in O.S. No.26 of 1989 and also as per the contents of the judgment in S.A. No.560 of 1986, by which the judgment in A.S. No.97 of 1983 was confirmed decreeing the suit in O.S. No.145 of 1981 holding that the defendants have taken possession of the schedule of properties at least a few years prior to 1977, the present suits, which were filed on 20-01-1989, are clearly barred by limitation.
33. According to the learned counsel for the plaintiffs, it is not relevant from what point of time the persons claiming to be in possession are in such possession, but what is relevant to be seen is as to at what point of time their possession has become hostile and adverse to that of the true owner and in support of the same, he relied on the decisions in S.M. Karim v. Bibi Sakina AIR 1964 SC 1254 and Annakili v. A. Vedanayagam and others AIR 2008 SC 346, wherein it was held that 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, and when there is no evidence as to when possession became adverse, if it at all did and a mere suggestion in the relief clause that there was an uninterrupted possession for more than 12 years or that he had acquired “an absolute title” was not enough to raise such a plea since long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.
34. As held in the decisions referred supra, it is settled law that adverse possession on a landed property can be claimed only from the date on which the possession is open, exclusive and hostile to its true owner, but the long possession over a property without adverse and knowledge of the same to its true owner cannot be said to be adverse possession. In the circumstances, in the case on hand, since the defendants’ case itself is that their adverse possession is open, exclusive and hostile to the plaintiffs from 03-05-1977, on which date they (plaintiffs) filed private complaints against them (defendants), their contention that they are in continuous possession of the schedule of properties from some years prior to 1977 and from then adverse possession should be counted has no merit and the same cannot be accepted.
35. Therefore, this Court is of the view that the plaintiffs have established their title as well as possession over the suit schedule properties and the defendants have miserably failed to prove their case that they are owners of the same and perfected their title to the same by adverse possession being in possession of the same uninterruptedly for more than 12 years, as such, the present suits, which were filed on 20-01-1989 are well within limitation.
36. For the aforesaid reasons, as rightly held by the trial Court, this Court is of the considered opinion that since the plaintiffs established their title to the schedule of properties and also their possession, they are entitled to declaration of title, delivery of possession and consequential permanent injunction over the schedule of properties in both the suits.
37. Accordingly, both the appeals are dismissed confirming the judgments in O.S. Nos.26 and 27 of 1989 dated 10-06-1999 passed by the learned Additional Senior Civil Judge, Eluru, in all respects. No order as to costs.