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Andhra Pradesh High Court
Judges : P.SATYANARAYANA RAJU, VENKATESAM
D.R.Adinarayanaswamy - Appellant
Versus
Girraju Papamma - Respondent
Decided On : 03-05-62
ADVERSE POSSESSION - OUSTER - CO-OWNERS - LIMITATION ACT, 1908 - SECTION 28 - Adverse possession of co-owners for more than 12 years - Ouster of other co-owners - Extinguishment of right to property - Declaration of right in previous litigation - Effect - Possession of Panchayatdar - Interruption of adverse possession.
Fact of the Case:
The plaintiffs, two brothers, filed a suit for partition and separate possession of 2/5th share in the suit properties, alleging that they became entitled to the same under Hindu law on the death of their unmarried sisters, and that the remaining 3/5th was owned by the defendants 1 and 2. The defendants resisted the suit, contending that they had acquired title to the entire property by adverse possession for over twenty years to the knowledge of the plaintiffs.
Finding of the Court:
The court found that the plaintiffs never got into possession of the suit lands after the death of their sisters, that the defendants enjoyed the suit properties for over twenty years to the exclusion of the plaintiffs, and that they have acquired a title by adverse possession. The court also found that the finding in a previous litigation that the enjoyment of the suit land was with the defendants herein and their late sister Subbamma, is not binding on the plaintiffs, and similarly the finding in a second appeal that the plaintiffs are entitled to the 27.5th share is not binding on the defendants.
Issues: 1. Whether the defendants had acquired title to the entire property by adverse possession for over twenty years to the knowledge of the plaintiffs? 2. Whether the finding in a previous litigation that the enjoyment of the suit land was with the defendants herein and their late sister Subbamma, is binding on the plaintiffs? 3. Whether the finding in a second appeal that the plaintiffs are entitled to the 27.5th share is binding on the defendants?
Ratio Decidendi: 1. The court held that the defendants had acquired title to the entire property by adverse possession for over twenty years to the knowledge of the plaintiffs. The court relied on the following factors: a. The defendants had been in exclusive possession of the suit properties since the death of the plaintiffs' sisters in 1935 and 1936. b. The defendants had paid the cist on the suit properties in their own names. c. The defendants had executed several mortgages of the suit properties, both simple and usufructuary. d. The plaintiffs had not taken any steps to assert their rights to the suit properties until 1950, when they filed the present suit. 2. The court held that the finding in a previous litigation that the enjoyment of the suit land was with the defendants herein and their late sister Subbamma, is not binding on the plaintiffs. The court reasoned that the previous litigation was not a suit for partition, but a suit for recovery of a share in the property. Therefore, the finding in the previous litigation was not a declaration of the rights of the parties to the present suit. 3. The court held that the finding in a second appeal that the plaintiffs are entitled to the 27.5th share is not binding on the defendants. The court reasoned that the second appeal was decided on the basis of the finding in the previous litigation, which is not binding on the defendants.
Final Decision: The court dismissed the plaintiffs' suit.
( 2 ) ONE Dugga Ramanna of Dhannavaram had four wives. By his second wife, he had two sons, plaintiffs 1 and 2 herein, while by his fourth wife he had five daughters, viz. , Papamma (D-1), Subbamma (deceased), Lakshmamma (D-2), Ran-gamma and Alavelamma. Ramanna died in or about 1926 and before his death, he executed a registered will, Ex. A-14 dated 15-8-1924, where-under he bequeathed the suit lands called Koneru Madi, covered by old Survey No. 583, New Survey No. 442, measuring 5 acres 33 cents, and bearing an assessment of Rs. 47. 00 to his five daughters absolutely to be taken by them in equal shares, and in the event of death of any of them it was provided that the other daughters should take her share equally. The will also bequeathed other properties to his other children, plaintiffs, and his wives, with which we are not now concerned. The fourth wife of Eamanna also appears to have died two years after the death of Ramanna, so that the five daughters became orphans and had to be looked after by the first plaintiff. He brought them up and performed their marriages, and also managed the suit properties. The two daughters, Subbamma and Lakshmamma were given in marriage to residents of Kanjeevaram in the south, and unfortunately the two unmarried daughters Alivclamma and Rangamma died in 1935 and 1936 respectively. Subbamma, whose husband was one Ungarala Venkatcsu, also died in 1943. It is the shares of the two daughters, Ali-velamma and Rangamma, that are the subject matter of this litigation.
( 3 ) THE plaintiffs case is that they became entitled under Hindu law to the 2/5 share of their deceased unmarried sisters, and that the remaining 3/5 was owned by the defendants 1 and 2, that their right to the 2/5 share was declared in O. S. No. 113 of 1950 on the file of the District Munsifs Court, Dharmavaram, against which there were appeals to the District Court, Anantapur, in A. S. 112 and 121 of 1951, and also a Second Appeal to the High Court of Andhra, in S. A. No. 2597 of 1952, which was decided on 31-8-1955. That suit. O. S. No. 113 of 1950, it may be noted was filed by Venkatesu, the husband of Subbamma, for partition and separate possession of 1/3 share as her heir on the ground that the present plaintiffs 1 and 2 (defendants 1 and 2 therein) were entitled to the 2/5 share of the unmarried sisters and defendants 1 and 2 herein (defendants 3 and 4 in that suit) were entitled to the remaining 2/5 share. In that litigation, their right to the 2/5 share of the suit property belonging to the two deceased sisters was declared, and they contend that they therefore became the co-owners with the defendants, and were in joint possession of the suit property.
( 4 ) DURING the pendency of the second appeal, the plaintiff in O. S. No. 113 of 1950 moved the District Munsifs Court Dhannavaram, in I. A. No. 619 of 1954 for appointment of a receiver for the sale of standing crop, and an Advocate, Sri Narayana Sastry, was appointed as Receiver to take possession of the crop. He sold the crop and deposited the sale proceeds into Court. Subsequently, another I. A. No. 326 of 1955 was filed in the same court, and an Advocate Sri Hanumantharao, was appointed Receiver to lease out the suit lands. It was averred that the Receiver took possession of the property and yet the defendants trespassed on the suit property and raised paddy crop. The plaintiffs, therefore, filed " this suit for partition and separate possession of their 2/5 share.
( 5 ) DURING the pendency of the suit, the first plaintiff died, and his sons, the plaintiffs 3 to 5, were brought on
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