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2010 Supreme(AP) 253
High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE VILAS V. AFZULPURKAR
Chintalapati Purushottama Sastry (died by L.Rs.)
Versus
Yarlagadda Nagarja Rao & Others
Second Appeal No.560 of 1984
Decided on : 31-03-2010
For the Petitioner:Y. Vivekananda, Advocate.
For the Respondents:A. Ramakrishna, Advocate.
Headnote:A) TRANSFER OF PROPERTY ACT, 1882, Section 53-A:- Where the person claiming title under doctrine of part performance under Section 53-A, he cannot succeed if it is claimed in pursuance of an oral sale agreement. (Para 27)
B) ADVERSE POSSESSION – Plea of adverse possession by the defendant is not permissible in the case as she claimed that she in possession of the property under an oral agreement because her possession is only permissive but not hostile to the original owner. (Para 27)
C) REGISTRATION ACT, 1908, Sections 48 and 49 - Transfer of Property Act, 1882, Section 53-A - Income tax Act, 91 Section 2 (47)(v):- Where the R-4 is in possession of the property by virtue of an oral agreement, which is barred by Section 49 of Registration Act, protection under section 49 of Registration Act or under Section 53-A of Transfer of Property Act cannot be extended to him. So also cannot be said a sale for the purpose of 91 of Income Tax Act. (Paras 29, 30, 31 and 32)
D) CIVIL PROCEDURE CODE, 1908, Section 100 - Specific Relief Act, 1963, Sections 34 and 38 –Where the declaratory relief reversed by the court to the plaintiff who is a bona fide purchaser of the property on the ground of a purported tenancy application filed by the vendor of the plaintiff against the respondent, the order of the appellate court was held unsustainable because none of the defendant pleaded landlord and tenant relationship and the contention of the appellate court that plaintiff should have approached tenancy court is not maintainable. (Paras 35 to 38)
1. This appeal is by the plaintiff. Plaintiff questions the decree of the lower appellate Court, which has granted relief of declaration to the appellant/plaintiff, but has denied the relief of recovery of possession on the ground that the said relief falls within the jurisdiction of the authority of A.P. Tenancy Act and that the Civil Court has no jurisdiction to grant the said relief of recovery. Aggrieved by the said appellate decree the plaintiff has preferred this Second Appeal.
2. The respondent No.4 herein, who has also defendant No.4 in the trial Court and respondent No.4 before the lower appellate Court has preferred cross-objections to the extent of adverse finding against the said cross appellant in the impugned judgment of the lower appellate Court.
3. For the sake of convenience the parties are referred to as they are arrayed in the suit and the reference to plaintiff hereafter will be reference to the appellant and similarly reference to 4th defendant would be reference to the cross objector.
4. Facts in brief are as follows:
The plaintiff herein claimed that the suit property belongs to one Smt.K. Sampurnasarada who is residing in West Indies along with her husband. She had acquired the said suit schedule property by way of a gift deed dated 27-03-1958 in her favour from her father late Sri.K.V.S.Sastry. She had also appointed Sri K.V.S. Sastry as her power of attorney under registered GPA Ex.A-1.
5. It is claimed that the suit land was under cultivation by Defendant No.1 as lessee right from 1968 onwards and as the defendant No.1 committed default in payment of lease amount and did not pay the same in spite of demand under Ex.A-4, defendant No.1 vacated the suit land in the year 1969. The plaintiff claims that she purchased the suit land under agreement of sale dated 20-11-1969 and on coming to know of it defendant Nos.1 and 4 gave a notice to Sri K.V.S. Sastry as well as the plaintiff under Ex.A-6. After that plaintiff purchased the suit property under registered sale deed dated 21-09-1974 through Sri K.V.S. Sastry, GPA of Smt.K. Sampurnasarada. Meanwhile, having vacated the land in 1969 it is alleged that plaintiff reentered the land in 1970 whereupon the vendor of the plaintiff filed ATP No.194 of 1979 fasli 1379 fasli against defendant No.1 for declaration that he is not a cultivating tenant. Ex.A-8 is the tenancy petition and Ex.A-9 is the counter filed by defendant No.1. After purchase of the property by plaintiff the plaintiff’s vendor as well as the plaintiff issued notices under Exs.A-10 and A-12 to defendant No.1 respectively but there was no reply.
6. While defendant No.1 is the husband of defendant No.4, defendant Nos.2 and 3 are brothers of defendant No.1 who are cultivating the land along with defendant No.1. Plaintiff’s notice Ex.A-12 was thereafter replied to by defendant No.4 under reply notice Ex.A-17. Plaintiff also filed a petition for impleading himself in the said tenancy case but later withdrew the ATC itself as per memo Ex.A-18 and filed the present Civil Suit. Since defendant No.4 had claimed that they have come into possession under an agreement as per the recitals in their notice Ex.A-6 plaintiff called upon the defendants to produce the said agreement.
7. The plaintiff states that he had filed the present civil suit as defendant No.1 disowned tenancy and claimed to be in possession through defendant No.4 on the ground that defendant No.4 had purchased the property and as defendant No.4 is claiming rights with respect to Ac.2-38 cents situated to the south of Ac.3-74 cents in Sy.No.185/6 and 7 plaintiff filed the present suit for declaration of her absolute rights and for possession and profits.
8. As the defendants was not paying profits either to their vendor or to the plaintiff the present suit accordingly was filed on 06-11-1975 for declaration that the plaintiff is the absolute owner of the suit schedule property and for declaration, possession, past profits and fut
