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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
M. Seetharama Murti, J.
Bhimavarapu Laxma Reddy – Appellant
Vs.
Pallothu Aswini Kumar – Respondent
Second Appeal No. 370 of 2010
Decided On: 24.07.2015
Civil Law – Civil Suit – Code of Civil Procedure, 1908 – Section 100 – Limitation Act – Section 27 – Transfer of Property Act – Section 53 – Suit for Declaration of Property – Decree – Second Appeal – Dismissal of Appeal – Appeal against decree and judgment of VII Additional District Judge passed in AS – Whereby Additional District Judge while dismissing said first appeal had confirmed the decree and judgment of III Additional Junior Civil Judge, passed in OS. filed for a declaration that plaintiff is in exclusive possession of the suit schedule property prior to 1992 and that said possession was confirm by possessory sale agreement and perfected title by adverse possession and for consequential perpetual injunction restraining defendants, their men, agents, followers, servants etcetera from ever interfering with the plaintiffs peaceful possession and enjoyment over Ac. 4.00 cents of agricultural land more fully described in the schedule annexed to the plaint – I have heard the submissions of the learned counsel for appellant/plaintiff and counsel for caveator-respondent/1st defendant at the stage of admission – Whether findings of first appellate Court as to Ex. A1 and A2 based on admission of DW1 regarding possession of the property is hit by the admission made by the DW1 – Both the Courts below failed to appreciate the legal proposition of passing of Judgment forthwith based on admission of DW1 as to Ex. A1 & under order 12 rule 6 of CPC – Held, Position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered owner of a property transfers property and puts transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to property – In such a case owner of the property does not retain any vestige of right in regard to property and his mental attitude towards the property is that it has ceased to belong to him altogether – Transferee after getting into possession retains the same with clean animus that he has become the absolute owner of the property and in complete negation of any right or title of transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person – So far as vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property – This applies only in a case where there is a clear manifestation of intention of owner to divest himself of the right over the property. On the other hand in the case of an executory contract the possession of the transferee until date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself – Plaintiff is not entitled to a declaration prayed for being purely mixed question of fact and law, it cannot be said that either pure questions of law or substantial questions of law are involved in this second appeal – Concurrent findings well supported by reasons, which are valid and cogent, call for no interference in this second appeal. None of questions that were sought to be raised are substantial questions and there is no substance in questions raised – Law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved – Appeal is dismissed.(Paras 10 and 11)
M. Seetharama Murti, J.
1. This second appeal by the unsuccessful plaintiff under Section 100 of the Code of Civil Procedure, 1908 (the Code, for short) is directed against the decree and judgment dated 18.01.2010 of the learned VII Additional District Judge (Judge, Fast Track Court), Vijayawada passed in AS. No. 112 of 2008 whereby the learned Additional District Judge while dismissing the said first appeal had confirmed the decree and judgment dated 02.06.2008 of the learned III Additional Junior Civil Judge, Vijayawada passed in OS. No. 2962 of 2004 filed for a declaration that the plaintiff is in exclusive possession of the suit schedule property prior to 1992 and that the said possession was confirm by the possessory sale agreement dated 28.05.1992 and perfected title by adverse possession and for consequential perpetual injunction restraining the defendants, their men, agents, followers, servants etcetera from ever interfering with the plaintiffs peaceful possession and enjoyment over Ac. 4.00 cents of agricultural land out of total extent of Ac. 8.97 cents in R.S. No. 322-1 of Pathapadu village of Vijayawada Rural Mandal more fully described in the schedule annexed to the plaint.
2. I have heard the submissions of the learned counsel for the appellant/plaintiff (the plaintiff, for brevity) and the learned counsel for the caveator-respondent/1st defendant (the 1st defendant, for brevity) at the stage of admission. I have perused the material record.
3. The learned counsel for the plaintiff had contended that the following substantial questions of law are involved in this appeal and therefore, the appeal deserves to be admitted for disposal on merits.
"1. Whether the findings of the first appellate Court as to Ex. A1 and A2 based on the admission of DW1 regarding possession of the property is hit by the admission made by the DW1?
2. Both the Courts below failed to appreciate the legal proposition of passing of Judgment forthwith based on admission of DW1 as to Ex. A1 & under order 12 rule 6 of CPC?
3. Whether the Courts below went wrong in reading the plea in the plaint in right perspective?
4. Whether the courts below at least failed to grant injunction irrespective of suit property based on Ex. A1 & A.2 invoking Section 53 of Transfer of Property Act?
5. Whether the courts below failed to consider possessory title of the appellant/plaintiff and erred in dismissing the suit as well as the appeal on wrong premises?
6. Whether the courts below failed to apply the principles underlie under Section 27 of the limitation Act?
7. Whether the plea of adverse possession was not properly appreciated by the courts below?
8. Whether the trial Court has erroneously held that the possession of the appellant as permissive?"
[Reproduced verbatim]
4. Now it is to be examined as to whether or not any substantial questions of law are really involved in the second appeal; and, whether the appeal deserves to be admitted or is liable to be dismissed at the stage of admission. Before proceeding further, it is necessary to refer to the cases of both the sides.
4.1 The case of the plaintiff, in brief, is this: - The plaintiff had purchased the suit land from the 1st defendant. At the first instance i.e., on 04.07.1985 the plaintiff had entered into an agreement with the 1st defendant for purchase of the suit land at Rs. 26,000/- per acre i.e., for a total consideration of Rs. 1,04,000/-. On that day itself, the plaintiff had paid Rs. 20,000/- to the 1st defendant towards advance with a specific understanding to pay the entire balance of sale consideration within four months and obtain a regular registered sale deed for the suit land in the name of the plaintiff. The plaintiff had accordingly paid the balance of sale consideration in the year 1989 and the possession of the land was delivered to the plaintiff. Thereafter the 1st defendant had executed a possessory sale agreement dated 28.05.1992 in favour of the plaintiff confirming the possession of th
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