Important Point
Tirumala Tirupati Devasthanam could rely on the judgment in O.S. 51/37 as evidence to prove its title in regard to the suit property, even though the present plaintiff was not a party to that suit.

Judgment

M. Jagannadha Rao, J.-The Appellant (Tirumala Tirupati Devasthanams, hereinafter called the TTD) is the defendant in the suit O.S. No. 51 of 1968 filed by the respondent-plaintiff in the Court of the District Munsif at Tirupati. The suit was filed by the respondent for grant of permanent injunction against the TTD in respect of Ac 2.29 of land in Tirumala Hills.

2. The trial Court dismissed the suit holding that the plaintiff had proved neither title nor possession and that the plaintiff who had trespassed into the property in October, 1967, was not entitled to permanent injunction against the true owner, of the property, namely, the TTD.

3. The plaintiff filed an appeal and during the pendency of the ap­peal, the plaintiff had temporary injunction in CMP 319 of 1969 in his favour only upto 28.8.1969 and was dispossessed on 30.8.1969 by the TTD. The plaintiff then filed an application CMP No. 289 of 1970 on 25.7.70 under Order 6 Rule 17 CPC (beyond 6 months from the date of dispossession) for amendment of plaint and converted the suit into one for possession. The appellate Court too held that the plaintiff had proved neither title nor possession to the suit property. The appeal was dismissed by judgment dated 5.8.1982. We may state here that both courts relied upon the judgment of the Sub-Court, Chittoor dated 15.6.1942 in an earlier suit filed by the TTD against the Hathiramji Mutt in 1937 (O.S. 51/1937) wherein that Court had declared the TTD’s title to this property. Such title was declared on basis of title deeds of 1887. Evidence of the Deity’s possession from 1846 was ad­duced in that suit. Subsequent to the decree dated 15.6.1942, the TTD filed E.P. No. 1 of 1946 against Hathiramji Mutt and obtained delivery under Ex. B6 delivery receipt on 12.1.1946 through Court.

4. After failing in both Courts, the respondent plaintiff preferred Second Appeal No. 781 of 1982 in the High Court. The learned Judge allowed the appeal by judgment dated 24.4.1987 and passed a decree for possession in favour of the plaintiff observing that the suit was to be treated as one based on possessory title, and that the plaintiff dispossessed on 30.8.1969 could recover possession from the appellant TTD unless the TTD proved title. The learned Judge held that the oral evidence adduced by both sides was to be rejected and that the TTD’s title in respect of this extent of land of Ac 2.29 stood “extin­guished” inasmuch as the delivery receipt dated 12.1.1946 showed that some `encroachers’ were in possession of this piece of land. Such a finding as to extinguishment of plaintiff’s title was given for the first time in Second Appeal, even though there was no such issue in the courts below. Against the said judgment in Second Appeal, decree­ing the suit for possession, this Civil Appeal has been preferred by the TTD.

5. Learned senior counsel for the TTD, Sri Soli J, Sorabjee contended before us that it was not open to the Second Appellate Court to reap­preciate evidence and reject the oral or documentary evidence which was accepted by the courts below and that it was also not open to the Court in Second Appeal to hold that the TTD’s title stood “extin­guished” when there was no such issue framed in the lower courts. If the suit was to be decided only on the basis of possessory title, as even accepted by the Second Appellate Court and if Section 6 of the Specific Relief Act, 1963 was, even according to the said court, not available to the plaintiff,-because the application for amendment to convert the suit into one for possession was filed on 25.7.1970, beyond 6 months from the date of dispossession i.e. 30.6.69,-the suit for possession was liable to be dismissed as the TTD had proved title and the said title was subsisting and was never extinguished.

6. On the other hand, it was contended by Sri A.T.M. Sampath, learned counsel for the respondent-plaintiff that the earlier judgment in OS 51/1937-Sub-Court, Chittoor was rendered in a suit by the TTD