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2014 Supreme(AP) 384
HIGH COURT OF ANDHRA PRADESH
B. SIVA SANKARA RAO, J.
Dakarapu Lakshmana Swamy
Versus
Maddula Narasimha Rao & Others
Appeal Suit No. 854 of 1998
Decided On: 19-03-2014
For the Appellant:A. Ramalingeshwara Rao, Advocate.
For the Respondents:Y.V. Ravi Prasad, Advocate.
A person pleading adverse possession has no equities in his favour.
Headnote:(A)Pleading-Doctrine of Election-Plaintiff can at best take alternative pleas, but not any inconsistent pleas and even any pleas taken inconsistent to one another, he got the doctrine of election of one of the pleas thereby other inconsistent plea being taken waived, for not entitled to approbate and reprobate---However, so far as defendant concerned, he can take any number of pleas to non-suit plaintiff any in that course one plea may be inconsistent to the other, however, where he makes a counter claim, he is at par with plaintiff so far as the counter claim concerned.
(B)Adverse Possession-A party claiming adverse possession must prove that his possession is peaceful, open and continuous---Possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. Physical act of exclusive possession and the animus possedendi to hold as owner in exclusion to the actual owner are the most important factors, which are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law, but a blended one of fact and law---A person who claims adverse possession should show on what date he came into possession, what was nature of possession, whether the factum of possession was known to the other party, how long his possession is continued and his possession was open and undisturbed---A person pleading adverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, thus it is for him to clearly plead and establish all facts necessary for adverse possession.
Result-Appeal allowed.
This appeal is filed by the 1st defendant in O.S.No.138 of 1988 on the file of the Principal Senior Civil Judge, Eluru, having been aggrieved by the judgment and decree dated 02.03.1998 in said suit filed by the respondent Nos.1 to 3 herein as plaintiff Nos.1 to 3 against him and their father Maddula Gangaraju-2nd defendant to the suit who is no other than 4th respondent to the appeal since died pending appeal and his other legal heirs(besides R.1 to R.3(plaintiffs) on record not claimed so) brought on record as R.5 to R.9 of the appeal by order dated 23.07.2012 in A.S.M.P.No.2400 of 2006.
1(a). In fact, as per the decision in KothaSeshamma Vs. Pittela Venkayya (AIR 1957 AP 386) after born sons also got right by birth in the joint family property, even to challenge the alienation made by father or other manager as improper to seek for setting aside. Here, the claim of plaintiffs (the benefit of which the respondents 5 to 8 also entitled) is in the joint family property to question the alienation made by their father-2nd defendant under Ex.B.2 to 1st defendant after Ex.A.1 relinquishment deed and as such there is a conflict of interest between them and 2nd defendant, to say they cannot be legal representatives of 2nd defendant, but for necessary parties to the appeal along with plaintiffs(respondents 1 to 3) to have benefit of suit and it is only the 1st defendant, that is assignee under Order 22 Rule 10 of CPC of the rights 2nd defendant under Ex.B.2 sale agreement. The suit filed by the three plaintiffs dated 11.01.1987 was for possession of plaint A-schedule property of the Ac.5-35 cents with past and future profits against the two defendants by claiming they got only plaint B-schedule movables exempt from consideration of means as indigent persons pursuant to the permission accorded by order of the trial Court in pauper O.P.No.66 of 1987.
2. Before coming to the grounds of appeal attacking legality and correctness of said decree and judgment allowing the suit claim by the trial Court and what are the points that required for determination on being formulated from rival contentions in this first appeal and its scope, for better appreciation, the factual matrix of the case before trial Court is the following:-
2(a). The case of the plaintiffs is that 2nd defendant is the father of plaintiff Nos.1 to 3 and the plaint-A schedule property, an extent of Ac.5-25 cents (Item No. I to the extent of Ac.2.50 cents and Item No. II to the extent of Ac.2.75 cents in R.S.No.243) of I.S.Raghavapuram village, Dwarakatirumala Mandal, West Godavari District was the joint family property of the plaintiffs and their father i.e. the 2nd defendant, that 2nd defendant executed a relinquishment deed on 12.10.1969 (Ex.A.1) in respect of his undivided share in said joint family property in favour of the plaintiffs during their minority showing their mother (wife of 2nd defendant) as guardian of them, that thereafter, the 2nd defendant without any right contracted to transfer the plaint-A schedule property to the 1st defendant on 28.02.1975 (Ex.B.2), that as they were not having sufficient funds to cultivate the plaint-A schedule property, they left I.S.Raghavapuram for Janagareddigudem in the year,1975 and in their absence 1st defendant encroached the plaint-A schedule property and in spite of legal notice failed to deliver the same and hence the suit claim.
2(b). The 2nd defendant having been served, remained ex parte without any contest the suit claim.
2(c). The case of 1st defendant-appellant is that the relinquishment deed- Ex.A.1 is a sham and nominal document and never acted upon, that 2nd defendant, for the benefit of his joint family, agreed to sell the plaint-A schedule property to him and in pursuance of the contract for sale executed by the 2nd defendant, he came into possession, that the plaintiffs are not entitled to evict him as he is protected by Section 53-A of the Transfer of Property Act, 1882, that otherwise he perfecte
