Andhra Pradesh High Court
Judges : B.S.A.SWAMY
Kalal Thimmanna - Appellant
Versus
Krishna reddy - Respondent
S.A.Nos.177 & 181/95
Decided On : 02-23-04
Advocates Appeared :
Mr.A.Narasimha Reddy, Mr. L. Prabhakar Reddy
Under Art.65 burden is shifted on defendant to prove adverse possession by clear and unequivocal evidence that his possession is hostile to real owner and amounted to denial of his title to property.
In this case defendant having set up title to property under a sale, he cannot turn round and contend that he perfected his title to property by adverse possession - Period of limitation commences only after possession of defendant becomes adverse to plaintiff - Burden has shifted to defendant to prove that he perfected title by adverse possession and there is no obligation on plaintiff to prove that they are in possession within statutory period of twelve years - Judgment and decree of lower appellate Court, set aside - Judgment and decree of trial Court restored.
( 1 ) BOTH the appeals can be disposed of by a common judgment, since the disputed property is one and the same and it is between the same parties.
( 2 ) THE parties are referred as arrayed in O. S. No. 54 of 1986 for the sake of convenience.
( 3 ) THE defendants in O. S. No. 54 of 1986 initially filed O. S. No. 25 of 1986 on the file of District Munsif Court, Atmakur, seeking permanent injunction restraining the plaintiffs in this suit (Defendants therein) from interfering with their possession over the suit schedule properties (i. e. ,) Ac. 6-08 gts. , of land in Sy. No. l38/a and in sy. No. 138/aa for an extent of Ac. 6-07 gts. , of Motlampally Village, Atmakur Revenue mandal, Mahabubnagar District by contending that they purchased these properties for a consideration of Rs. 1,800. 00 about 25 years back and since then they are in peaceful possession and enjoyment of the properties. They further stated that their sale deed was lost due to heavy rains in the year 1964 and therefore the original sale deed could not be filed in the Honourable Court, and the defendants (i. e. ,) Kalal Thimmanna and Pedda Ramulu sons of late Thimmanna and Balachandrudu, who have no right over the suit schedule properties, are trying to dispossess them taking advantage of the entries in Column No. 11 of the pahanies showing the name of their paternal uncle hanmanthu. They also contended that they are in continuous possession and enjoyment of the suit schedule properties for more than 25 years and perfected their title by adverse possession. Having received the suit notices, the plaintiffs (i. e. ,) Ashamma wife of late hanmanthu, her brother-in-laws Thimmanna and Balachandrudu son of Thimmanna (i. e. ,) defendants 2 to 4 in O. S. No. 25 of 1986 filed O. S. No. 54 of 1984 by contending that they are the absolute owners and possessors of the land and in the year 1969 or so they have leased out the lands to the defendants herein (i. e. ,) plaintiffs in O. S. No. 25 of 1986 on crop share basis. Since they are living like one family member the plaintiffs did not care to take share in the rent or crop from the suit land, but defendants used to give some grains now and then to the plaintiffs. The defendants perhaps at the behest of some anti-social elements in the village filed O. S. No. 25 of 1986 seeking permanent injunction restraining them from interfering with his possession and enjoyment of the suit sohedule properties and obtained injunction orders by filing some pahanies, which were got prepared in collusion with the village patwari. Hence, they sought for declaration that they are the owners of the suit lands bearing Sy. No-138/a and in sy. No. 138/aa admeasuring Ac. 6-08 gts. , and ac. 6-07 gts. of land respectively situated in motlampally Village, Atmakur Revenue mandal, Mahabubnagar District and to put them in possession of the suit schedule properties by evicting the defendants and for other reliefs.
( 4 ) BASING on the above pleadings the court below framed the following issues in o. S. No. 25 of 1986: (1) Whether the plaintiffs are entitled for permanent injunction? (2) To what relief ? the Court below framed the following issues in O. S. No. 54 of 1986: (1) Whether the plaintiffs are entitled for declaration as owners of the suit property? (2) Whether the defendants did not purchase the suit property and in alternative whether they did not perfect the title over the suit property by way of adverse possession? (3) Whether the plaintiffs entitled for the possession of the suit property? (4) To what relief ? both the suits were clubbed and the evidence was recorded in O. S. No. 54 of 1986.
( 5 ) PLAINTIFF No. 3 was examined as p. W. 1 and one Harijan Gattanna was examined as P. W. 2 and Exs. Al certified copy of the pahani for the years 1983-84, Ex. A2 temporary injunction order dated 6. 6. 1986 were marked on behalf of the plaintiffs. On behalf of the defendants, Defendant No. 2 mr. Ramchander Reddy was examined as d. W.
Soham Modi and another, etc. Vs Special Court under A.P.Land Grabbing (Prohibition) Act at Hyderabad
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