1958 Supreme(AP) 179

Andhra Pradesh High Court
Judges : SANJEEVA ROW NAIDU
Ravipudi Abbayya - Appellant
Versus
State OF A.P. represented by Collector, Guntur - Respondent
Decided On : 11-04-58

ADVERSE POSSESSION - POSSESSION FOR 60 YEARS - PRESUMPTION OF TITLE - BURDEN OF PROOF - GOVERNMENT LAND - CULTIVATING TENANT - CIST - RIGHT TO REMAIN IN POSSESSION - ADVERSE POSSESSION - PRESUMPTION - GOVERNMENT PLEADER - NEUTRAL ATTITUDE - DECLARATORY DECREE - FINAL - APPEAL - ALLOWED - DECREE OF LOWER APPELLATE COURT - SET ASIDE - DECREE OF LEARNED DISTRICT MUNSIF - RESTORED.

Headnote:

ADVERSE POSSESSION - LAND ENCROACHMENT ACT - ASSESSMENT - PENAL ASSESSMENT - EVICTION - PROCEDURE - BURDEN OF PROOF - LIMITATION - POSSESSION - TITLE - DECLARATION - INJUNCTION - GOVERNMENT LAND - CULTIVATING TENANT - CIST - RIGHT TO REMAIN IN POSSESSION - ADVERSE POSSESSION - PRESUMPTION - GOVERNMENT PLEADER - NEUTRAL ATTITUDE - DECLARATORY DECREE - FINAL - APPEAL - ALLOWED - DECREE OF LOWER APPELLATE COURT - SET ASIDE - DECREE OF LEARNED DISTRICT MUNSIF - RESTORED.

Fact of the Case:

Plaintiffs brought suits for declaration of title and injunction restraining defendants from interfering with their enjoyment and possession of the lands in each of the suits. Both the suits were tried together as common questions of law and fact were involved and were accordingly disposed of by a common judgment. The appeals against the judgment and decree in each of these suits were also heard together by the learned Subordinate Judge, Bapatla, and were disposed of by him in a common judgment. The 1st defendant in both the suits was the State of Madras. Defendants 2 and 3 in each of the suits were political sufferers and claim to be grantees of the lands in the suits from the Government by virtue of grants made in their favour in 1951. The 3rd defendant in O. Section No. 309 of 1951 figured as the find defendant in O. Section No. 313 of 1951. The contentions of the plaintiffs and the defendants in both the suits are the same. It is the case of the plaintiffs that they acquired the suit properties as heirs and successors to their maternal grand-father, Nallamuthu Venkatappa, who died some 40 years ago, that since then they had been in possession and enjoyment of the said properties, that prior to them their prede-cessor-in-title, their maternal grand-father and before him his predecessor-in-title, was in enjoyment of the suit properties from time immemorial, and, at any rate, for a period of 60 years. It is claimed in the plaints that the suit-lands are patta lands, that the plaintiffs brought the same under cultivation after spending considerable sums of money as the lands were subject to inundation and filling up the pits, that sometime in the year 1946 or 1947 the Government, declaring the lands as assessed waste, served notices under Section 7 of the Land Encroachment Act and that no action was taken to evict the plaintiffs under the said Act. The plaintiffs claimed that they paid cists for the suit lands all along and produced the cist receipts for the period 1921 to 1951. On 10-2-1951, the Government issued a notice to quit, against which notice the plaintiffs appealed to the Collector under the Land Encroachment Act and went up in revision to the Board of Revenue who stayed eviction on 20-7-1951. The plaintiffs served notices under Section 80 Civil Procedure Code on the Government on 29-8-1951 and filed the present suits after the expiry of two months thereafter, on 30-11-1951.

Finding of the Court:

The learned District Munsif who tried the suits came to the conclusion that the omission on the part of the 1st defendant -- Government -- to contest the suits lent support to the claim of the plaintiffs based on their long possession and enjoyment, that the plaintiffs continued to remain, in possession of the suit lands until the date of suit, that the plaintiffs had established possession and enjoyment of the suit properties for over 60 years, and had therefore established possessory title to the same and that an action could lie on the strength of the possessory title which has to be safeguarded. The learned District Munsif also held that the grants in favour of the 2nd and 3rd defendants in O. Section No. 309 of 1951 and the 2nd defendant in O. Section No. 313 of 1951 had been cancelled by the Government themselves, on 27-3-1953 under Exs. A-31 and A-32 and as such these defendants had thereafter no right of any kind to resist the suit for an injunction restraining them from disturbing the possession of the plaintiffs. So holding, the learned District Munsif granted a decree in each of the suits in the following terms:"it is ordered and decreed declaring the plaintiffs right to the plaint scheduled property and that the defendants 2 and 3 be and hereby are restrained by a permanent injunction from interfering with plaintiffs possession and enjoyment thereof. "the decree also directed that defendants 2 and 3 should pay costs of the suit. The effect in law of the decree granted by the learned District Munsif is that a declaration had been given in favour of the plaintiff against defendants 1 to 3 in each of the suits, declaring the plaintiffs right to the suit properties and that a permanent injunction was issued only against defendants 2 and 3 and costs also were decreed only against defendants 2 and 3. Against these decrees, defendants 2 and 3 in each of the suits preferred appeals which, as already indicated, were numbered as A. Section Nos. 90 and 91 of 1953 on the file of the Subordinate Judges Court, Bapatla. The learned Subordinate Judge, who heard the appeals, held that the possession of the plaintiffs and their predecessors-in-title was not adverse to the Government, that the Governments conduct in not contesting the suits or the appeals before him was, not proper, that the plaintiffs had been evicted from the suit properties by D. W. 7, the Deputy Tahsildar, that possession of the suit properties had been, delivered to the contesting defendants and that even on the assumption that the plaintiffs had net been physically evicted from the suit lands, no injunction could be issued against the original owner or his assignees and, accordingly, dismissed the suits and allowed the appeals against defendants 2 and 3 in each case with costs.

Issues: 1. Whether the possession of the plaintiffs and their predecessors-in-title was adverse to the Government? 2. Whether the Governments conduct in not contesting the suits or the appeals before him was, not proper? 3. Whether the plaintiffs had been evicted from the suit properties by D. W. 7, the Deputy Tahsildar? 4. Whether possession of the suit properties had been, delivered to the contesting defendants? 5. Whether even on the assumption that the plaintiffs had net been physically evicted from the suit lands, no injunction could be issued against the original owner or his assignees?

Ratio Decidendi: 1. The possession of the plaintiffs and their predecessors-in-title was adverse to the Government. 2. The Governments conduct in not contesting the suits or the appeals before him was, not proper. 3. The plaintiffs had been evicted from the suit properties by D. W. 7, the Deputy Tahsildar. 4. Possession of the suit properties had been, delivered to the contesting defendants. 5. Even on the assumption that the plaintiffs had net been physically evicted from the suit lands, no injunction could be issued against the original owner or his assignees.

Final Decision: The appeals are allowed against defendants 2 and 3 i, e. , respondents 2 and 3 in these appeals with costs throughout and the decrees of the lower appellate Court are set aside and those of the learned District Munsif are restored.