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Andhra Pradesh High Court
Judges : C.Y.SOMAYAJULU
Mahendra C.Mehta - Appellant
Versus
Kousalya Co-op., Housing Society Ltd., Hyderabad - Respondent
Decided On : 06-13-01
Held : It is no doubt true that mentioning neighbour s land as a boundary of the land sold, without naming the neighbour, may not be a definite and identifiable boundary, especially in case of vacant land. But when a plan is annexed to the sale deed, and when the plan clearly shows the dimensions and the boundaries of the land sold and the details of the land of neighbour mentioned as a boundary in the body of the sale deed, and the sale deed itself contain a recital like more fully described (or delineated) in the plan annexed and the like, it cannot be said that the boundaries mentioned in the sale deed as neighbour s land are not clear or definite because a sale deed with a plan annexed thereto has to be read along with the plan as the plan annexed to the deed becomes an integral part and parcel of the deed. If the plan also does not contain the details of neighbours mentioned in the deed, and also the boundary as neighbour s land , it can be said that the boundaries are not clear to identify the property covered by the deed. Here I must state that when the plan annexed to a document is not produced, though the deed contains a recital like more fully described or delineated in the plan the document will have to be treated as an inchoate document and therefore cannot be permitted to be relied on by the party producing it. It is well known that when boundaries of a land covered by a deed are specific and clear wrong mention of the survey number or door number etc., of the property covered by the deed is of no consequence, because boundaries prevail over the extent and survey number mentioned. See P. Udayani devi v. V. V. Rajeswara Prasad following sheodhyan Singh v. Mussamma Sanicharakver. The same principle applies where no S. No. is mentioned, and boundaries are clear, specific and identifiable.
Adverse possession – Animus – For adverse possession to begin, person who entered into possession must know that property in his possession belongs to somebody else and have animus to hold property adverse to real owner.
Limitation Act, 1963 - Articles 64 and 65 - proof of - possession - Burden of proof - Suit based on Title - plaintiff need not prove that he was in possession of land sought to be recovered within 12 years of suit.
Held : Suits falling under article 64 of the Limitation Act, 1963 are based purely on previous possession of the plaintiff and therefore is not covered by art. 65, because he is not claiming recovery of possession basing on his title. Therefore, if the appellants establish their title to the suit land, the burden of proof would be on respondents to establish that they have perfected their title to the suit land by adverse possession, and appellants need not establish that they were in possession of the suit land within 12 years from the date of the suit. In Bhagavathy Pillai v, savariimithuit is held that in a suit falling under Art. 65, the defendant, who wants to defeat rights of the plaintiff, has to establish his adverse possession which has the effect of extinguishing the title of the owner by operation of Section 27 of Limitation Act, 1963 and if he fails to do so plaintiff cannot be non-suited merely because he was not able to prove possession within 12 years.
( 1 ) AGGRIEVED by the dismissal of O. S. No. 1 of 1985 (sic. 1980) on the file of the Court of the Additional Chief Judge-cum-II additional Special Judge for SPE and ACB cases, Hyderabad, the plaintiffs in the said suit have preferred this appeal.
( 2 ) APPELLANTS filed the suit against respondents 1 and 2 for declaration of their title to 7013. 88 sq. yards of land at yellareddyguda, Ameerpet, Hyderabad, within the boundaries specified, which hereinafter would be called the suit land and consequential injunction alleging that chabildas P. Mehta, father of appellants 1 to 6 and husband of 7th appellant, purchased the suit land from its owner Smt. Sharadamma under a registered sale deed dated 14-11-1959 (Ex. A-l) and was enjoying the same till the date of his death on 3-9-1972, and that thereafter they have been enjoying the same and that respondents 1 and 2 though have no right, title or interest therein, have been trying to encroach thereon, and filed an application seeking an injunction during the pendency of the suit to restrain respondents 1 and 2 from interfering with their possession over the suit land. An ex parte ad interim injunction was granted, which, after contest by respondents 1 and 2, was vacated by the trial Court, and confirmed by this Court. Thereafter by way of amendment, appellants sought the relief of recovery of possession of suit land also alleging that after filing of suit respondents 1 and 2 entered into possession thereof and raised structures.
( 3 ) RESPONDENTS 1 and 2 filed a common written statement, and additional written statement after amendment of plaint, alleging that the description of the suit land is vague because Survey number and actual location thereof are not mentioned, and since neither the appellants nor their predecessors-in-title were ever in possession of the suit land from 30 years prior to the filing of the suit, and since the 1st respondent and its predecessors-in-title have been continuously in possession thereof by paying land revenue for more than 15 years prior to the filing of the suit, appellants have lost their right, if any, in the suit land and that the suit land originally belonged to Ceramic and Lime Company (hereinafter called the company ) which went into voluntary liquidation in 1952, and the liquidator of the company took possession of all the properties of the company, including the suit land, and put them to public auction during which one srinivasachary purchased Ac. 7-29 gts. and sold Ac. 6-12 gts. to A. M. V. Prasada Rao, who in turn sold Ac. 6-00 to the 1st respondent along with his sons under different sale deeds, after 0-12 gts from out of the land purchased by him was acquired by Government, and that after purchase a lay out was obtained and plots were sold, and since appellants and their predecessors were never in possession of the suit land for over the statutory period, they are not entitled to any relief.
( 4 ) BASING on the above pleadings six issues and after amendment of the plaint, two additional issues, were framed by the trial Court for trial. In support of their case, appellants examined five witnesses i. e. , four witnesses (P. Ws. 1 to 4) in Court and saradamma, executant of Ex. A-l, on commission. But the appendix of evidence to the judgment under appeal shows that only P. Ws. 1 to 4 were examined and exs. A-l to A-35 were marked on behalf of the appellants. Therefore, for the sake of convenience in this judgment I would refer to Saradamma who was examined on commission as P. W. 5. In support of their case respondents 1 and 2 examined two witnesses as D. W. 1 and D. W. 2 and marked exs. B-l to B-42. The trial Court clubbing issues 1 to 3, which relate to the question whether tht appellants have title to and possession Over the suit land and are entitled to the perpetual injunction sought, held that appellants have no title to the suit land and that neither they nor their predecessors-in-title were ever in possession t
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