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1996 Supreme(AP) 117

Andhra Pradesh High Court
Judges : B.K.SOMASEKHARA
Ahalya Bai - Appellant
Versus
Gangapur Shankaraiah - Respondent
S.A. No. 540/88
Decided On : 02-19-96
Advocates Appeared :
Mr. R. Subhash Reddy, Mr. Nagabhushan Rao, Y. Sivaramasastri, Y. Venkat Sastri, Y.N.

Headnote:EVIDENCE ACT, Secs.47, 67 & 68 - SPECIFIC RELIEF ACT, Secs.34 & 27 - Documents - Execution - Proof of - "Execution" does not mean merely signing, it should be accompanied by intention to give effect and operation to the instrument signed ~ Adverse possession - Meaning of - Explained - Plaintiff filing suit basing on title exclusively on adverse possession Plaintiff failing to include the suit land in his declaration before land Reforms Tribunal and Tribunal not passing order treating land as in possession of plaintiff cuts the root of one of the main ingredients of adverse possession setup by the plaintiff in the suit seeking declaration of the title.

       Long possession of plaintiff proved, but his possession adverse to defendant not proved - Plaintiff came in possession of land as trespasser, with knowledge that defendant is real owner - Plaintiff has not come to Court with clean hands - Not entitled for relief of declaration - Relief of permanent injunction granted by trial Court, confirmed.

       

B. K. SOMASEKHARA, J.

( 1 ) THE appellant-defendant No. 1 in O. S. No. 13 of 1982 on the fileof the learned district Munsif at Asifabad and appellant No. 1 in A. S. No. 14 of 1985 on the file of the learned Subordinate Judge, Asifabad, who lost her defence against the respondent-plaintiff in the said suit, has come up with this appeal. Respondents 2 to 4 are the defendants 2 to 4 in the suit

( 2 ) THE first respondent filed the suit for declaration that he is the owner of the suit land bearing S. No. 195 measuring Acs. 7-11 cents and S. No. 198 measuring acs. 3-16 cents situated in Navagaon village described in the plaint schedule and the suit sketch map and for permanent injunction to restrain the defendants from interfering with his alleged possession and enjoyment of the suit land. He claimed to have perfected his title to the suit land by adverse possession for having been in possession for more than 12 years, alleged that D1 has been out of possession during such a period and "her name normally shown as pattedar," alleged her interference with his possession at the instigation of others, alleged that she was threatening him to evict from the suit land and he also alleged that she tried to take forcibly possession from him on 10-6-1982 and therefore he had to file the suit for the said reliefs.

( 3 ) THE first defendant denied the case of the plaintiff as above. She continues to be the owner of the suit land after the death of her husband, she was getting the land cultivated through the tenants till she permitted the plaintiff to cultivate the suit land on lease for seven years, he handed over possession to her after seven years and she cultivated the same thereafter, the plaintiff has no merit in the suit and that it may be dismissed with costs. The other defendants appeared to have not resisted the suit, but they supported the appellant-defendant No. 1.

( 4 ) THE following issues were settled on the basis of the pleadings:"1. Whether the plaintiff is entitled for declaration of ownership of the suit land; 2. Whether the defendants have leased out the suit land to the plaintiff for a period of six years through a lease deed dated 11-5-1975; 3. Whether the plaintiff is entitled for permanent injunction as prayed for; and 4. To what relief?" in the trial afforded to the parties, both ocular and documentary evidence was produced. The plaintiff examined himself as P. W. 1 and two witnesses as per p. Ws. 2 and 3 and got marked Exs. A-1 to A-27 by way of documentary evidence. Defendant No. 1 examined herself as D. W. 1 and examined five witnesses as per d. Ws. 2 to 6 respectively and got marked 11 documents as per Exs. B-1 to B-11 respectively. The learned Advocates for both sides advanced arguments in support of their respective contentions. Based on that, the learned District munsif held issue Nos. 1 and 3 in favour of the plaintiff and issue No. 2 against the first defendant and accepted the case of the plaintiff and decreed the suit. On appeal, the learned Subordinate Judge agreed with the findings of the learned district Munsif and confirmed the judgment and decree and thereby dismissed the appeal with costs.

( 5 ) MR. R. Subhash Reddy, learned Counsel for the appellant, on the basis of the grounds of appeal, has raised the following contentions challenging the judgment and decree of the Courts below:1. The finding that the plaintiff has been in possession of the suit land continuously for a period of 20 years prior to suit is against the evidence in the case. 2. The legal inference based on the evidence in the case that the plaintiff perfected his title by adverse possession is wrong as the conduct of the plaintiff in conceding to the title of the 1st defendant as pattedar to the suit land is inconsistent with his plea of title by adverse possession. 3. The basis of the suit itself is defective as the plaintiff has come out with a case of perfecting title by adverse possession without giving necessary particulars and suffic

















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