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Andhra Pradesh High Court
Judges : V.V.S.RAO
BASAPPA S/O.MALLESWARAPPA - Appellant
Versus
NAGOJAPPA S/O.KONANKAKURRIKI HANUMANTHAPPA - Respondent
Decided On : 09/01/2006
SECOND APPEAL 722 Of 1994
Limitation Act, 1963 – Specific Relief act, 1963 – Section 34, 35 –Appeal – Ownership of property under registered Sale Deeds - Irrigation channel and fruit - Suit for declaration of title and perpetual injunction –Held, Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. 35. Effect of declaration:- A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees. Article 65 of the Schedule to Limitation Act prescribes twelve years for filing a suit for possession of immovable property based on title and such twelve years begins to run when the possession of the defendant becomes adverse to the plaintiff. Possession of Basappa, who is defendant in the present suit, by no stretch of imagination can be treated as adverse to possession of Nagojappa as admittedly he got possession by reason of Ex. A. 2, decree, in the earlier suit first appellate Court has correctly appreciated the factual background, has drawn proper conclusions and applied the law, and therefore, the same does not warrant any interference – Second Appeal is devoid of any merit and is accordingly dismissed.
( 1 ) THIS Second Appeal is filed against the reversing Judgment, dated 26. 10. 1994, in A. S. No. 25 of 1991 passed by the Court of the additional District Judge, Hindupur, setting aside the Judgment of the trial Court, dated 08. 07. 1991 in O. S. No. 45 of 1986 on the file of the Court of the District Munsif, Madakasira, and decreeing the suit in favour of the plaintiff. The plaintiff/respondent is one Nagojappa and the defendant/appellant is Basappa. They are referred to as such in this Second Appeal.
( 2 ) THE property involved in the present suit is 1/6th share in dry land admeasuring Acs. 10. 92 cents in survey No. 292, stone rivetted well, an irrigation channel and fruit bearing and other trees in the land. The property is situated at Tamadehalli village of Madakasira mandal in Anantapur District. This property had been contentious issue between Basappa and Nagojappa. It originally belonged to one thimmappa. Basappa allegedly purchased the property under registered sale deed, dated 05. 08. 1966. The same property was purchased by Nagojappa also under another registered sale deed, dated 25. 10. 1969 perhaps this led to the Us. Basappa filed a suit being O. S. No. 87 of 1969 on the file of the Court of the District munsif, Madakasira, for declaration of title and perpetual injunction against Thimmappa (original owner), Nagojappa and one mahalingappa based on the sale deed. The suit was decreed on 21. 11. 1970. Basappa then filed A. S. No. 29 of 1971 on the file of the court of the District Munsif, Anantapur. The same was allowed on 01. 07. 1977 reversing the Judgment and decree in O. S. No. 87 of 1969. Basappa then filed Second Appeal being S. A. No. 676 of 1980 before this Court. By Judgment dated 10. 11. 1983, this Court dismissed the second Appeal. Thus, the declaration of title in favour of Basappa as made by the Court of the District Munsif, Madakasira, in O. S. No. 87 of 1969 was no more available to Basappa from 10. 11. 1983. After dismissal of S. A. No. 676 of 1980, Nagojappa filed suit being O. S. No. 45 of 1986 on 02. 04. 1986 on the file of the Court of the district Munsif, Madakasira, out of which the present Second Appeal arises; for declaration of right, title over the same property and for recovery of possession. In the plaint, Nagojappa alleged that basappa was delivered possession fifteen days after the delivery of judgment by the Court of District Munsif in O. S. No. 87 of 1969 and as he lost the suit in the appeal as confirmed by the Second Appeal, nagojappa is entitled for declaration of title and possession based on the sale deed. Basappa opposed the suit mainly on two grounds: that the suit is barred by limitation and that he perfected title by adverse possession as the suit was filed on 02. 04. 1986 when the suit ought to have been filed within twelve years from 21. 11. 1970 on which day the Court of District Munsif decreed O. S. No. 87 of 1969. The trial Court framed five issues, namely, (i) whether the plaintiff is entitled for declaration and possession as prayed for; (ii) whether the decree and Judgment in A. S. No. 29 of 1971 operates as res judicata; (iii) whether the defendant has perfected his title to the suit property by adverse possession; (iv) whether the suit is barred by limitation; and (v) to what relief. Nagojappa as plaintiff examined himself as P. W. 1 and marked Exs. A. 1 to A. 4. Ex. A. 1 is the copy of the sale deed executed by Thimmappa in favour of Nagojappa and Exs. A. 2, A. 3 and A. 4 are the certified copies of the decrees in o. S. No. 87 of 1969, A. S. No. 29 of 1971 and S. A. No. 676 of 1980 respectively. The trial Court dismissed the suit holding that the suit is barred by limitation and that Basappa, the defendant perfected his right by adverse possession. Placing reliance on Padmamma v. Parvathamma, 1987 (2) ALT 188
( 3 ) THE trial Court also came to the conclusion that in the absence of any prohibition in the earlier suit preventing nagojappa for f
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