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Andhra Pradesh High Court
Judges : N.Y.HANUMANTHAPPA, VAMAN RAO
Ambedkar Educational Society, Hyderabad - Appellant
Versus
Kamakshi Buildings, Hyderabad - Respondent
C.C.C.A.No.182/98
Decided On : 12-31-99
Advocates Appeared :
Mr. Vedula Venkataramana, Mr. A. Seshachala Moudaliar
Adverse possession - Ingredients - Stated - To claim adverse possession defendant must establish that such possession must be open, adequate and with sufficient publicity so as to attract notice to plaintiff - When plaintiff failed to note the same, time would continue to run against him.
Tenant can not claim adverse possession as long as he is continuing as a tenant - Once it is determined and tenant continued in possession without any permission then he would acquire title over land by adverse possession - When tenant asserts title over property hostile against landlord and holds it for 12 years and more, in such circumstances landlord would lose his title over property - In the instant case first defendant was publicly claiming by his acts of construction of some buildings that property belongs to him and proved that he has been in continuous possession for more than statutory period of 12 years and perfected title by adverse possession - Plaintiff failed to prove his title over suit scheduled property and his right to seek delivery of its possession - Reasons given by trial Court to give finding in favour of plaintiff are incorrect - Suit dismissed in toto.
( 1 ) THIS appeal is directed against the judgment and decree dated 5-9-1998 passed in O. S. No. 161/89 on the file of the IV Addl. Senior Civil Judge, City Civil Court, hyderabad.
( 2 ) THE above suit was filed by m/s. Kamakshi Builders, a partnership firm represented by its partner R,s. Rangadas for the following reliefs: to pass a decree against defendants 1 and 2 (i) for possession of the suit property viz. , Western portion of building bearing No. 1-8-1, situated at Bagh lingampally, Hyderabad consisting of plinth area of 780. 0 Sq. yards with an open yard of 2196. 0 Sq. yards, totalling to 2976. 0 Sq. yards, (ii) for damages at the rate of Rs. 21,000. 00 per month from 16-12-1988 till the date of delivery of the possession of the suit schedule property; (iii) for arrears of rent of Rs. 43,200. 00 and (iv) for damages for the use and occupation @ Rs. 21,000. 00 per month during the pendency of the suit till the delivery of possession. After enquiry the court below decreed the suit in part directing the defendants 1 and 2 to deliver possession of the suit schedule property and further directing the defendants to pay damages of Rs. 3,000. 00 per month from the date of Ex. A-7 till the date of delivery of possession subject to payment of Court Fee. The Court granted three months time to deliver possession of the plaint schedule property. Aggrieved by this, the 1st defendant filed this appeal.
( 3 ) THE rank of the parties is as before the court below:
( 4 ) A few facts, as averred in the plaint, which are necessary to dispose of this appeal are as follows: Sri Nawab Mohd. Misbahuddin Khan (Defendant No. 3) was the owner of the suit schedule premises. The entire Bhaglingampally area, where the suit schedule property forms part of it, was the subject matter of the suit schedule property in C. S. No. 14/58 on the file of the high Court of Andhra Pradesh. In pursuance of the orders of the High Court passed in Application No. 73/70, dated 29-1-1971 and subsequent orders passed thereon in CS 14/58, a portion of the schedule property therein was partitioned between the parties to the said suit. In the said partition, the present suit schedule property was allotted to the sole and exclusive share of the 3rd defendant, namely Nawab Mohd. Misbahuddin Khan. After possession of the suit schedule property was delivered to the 3rd defendant he let out the same to dr. Ambedkar Educational Society (1st defendant) under a lease agreement dt. 16-5-1973 of a period of 11 months, on a monthly rent of Rs. l,200. 00. The lease expired already. While so the 3rd defendant with a view to develop the schedule property entered into partnership with the plaintiff and a deed was executed between them on 1-4-1986. Thereafter some disputes arose between the plaintiff and the 3rd defendant and by an agreement dated 25-7-1987 Sri T. Nagarajan was appointed an arbitrator for adjudicating the disputes who passed an award, which was registered in the Office of the District registrar, Hyderabad awarding a sum of rs. 4,00,000/- in favour of the 3rd defendant towards his share in the partnership viz. , the suit premises, contributed by him as a Stock in trade and as the partnership asset viz. , the suit property which was awarded in favour of the plaintiff as 3rd defendant retired from the partnership. The arbitrator sent the award to the Court which was numbered as o. S. No. 2193/87 on the file of the V Addl. Judge, City Civil Court, Hyderabad to make the award as rule of the Court. The Court after service of notices passed a decree dated 29-2-1988 making the award the rule of the Court. Thus, the plaintiff has become the sole and absolute owner of the suit property- Thereafter the 3rd defendant issued a notice on 22-11-1987 to the 1st defendant to pay the rent with all the arrears to the plaintiff which was received both 1st defendant on 22-12-1987. But the 1st defendant did not pay the rent in spite of notices for the last ten years eith
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