IMPORTANT POINT
A claim of title and adverse possession cannot coexist; plaintiffs must establish their title to succeed in a suit for declaration.

JUDGMENT :

(G. Radha Rani, J.) :

This second appeal is filed by the appellants-respondents-plaintiffs aggrieved by the judgment and decree dated 01.02.2005 passed in A.S. No.22 of 2000 by the II-Additional District Judge, Mahabubnagar reversing the judgment and decree dated 21.02.2000 passed in O.S No.11 of 1994 by the Junior Civil Judge, Mahabubnagar, seeking the relief of declaration of title and consequential relief of perpetual injunction.

2. The appellants-plaintiffs filed the suit contending that the plaintiffs No.1 to 3 were the brothers and that their grandfather, by name, Papanna and the great grandfather of defendant No.1 were brothers. The father of defendant No.1, by name, Gopanna was the son of one Ramulu. The said Ramulu was the son of Pedda Venkanna, the younger brother of Papanna. The defendants were the son and wife of Gopanna. During the partition, the lands were divided and Gopanna sold the suit land in the year 1954 to the father of the plaintiffs under a private sale deed dated 11.05.1954. The plaintiffs were in possession of the said land since then and were paying land revenue and their names were entered in the revenue records. The defendants were trying to disturb the possession of the plaintiffs taking advantage of the fact that the name of the 1st defendant’s father was in column No.1 of the pahani. The plaintiffs No.4 to 6 were brought on record as legal representatives of the plaintiff No.1.

3. The defendants filed written statement denying any private sale. They contended that if any sale was effected, the same would have been incorporated in the khasra of 1954-55 and the name of the father of the plaintiffs would have been recorded as purchaser in the khasra pahani of 1954-55. They further contended that there was a ban of alienation of the lands under Section 47 of the Tenancy Act between 1954 and 1969 and if such permission was not taken, the sale was void. On the basis of a private document, the title could not be passed to the plaintiffs and the plaintiffs could not sustain the suit for the relief of declaration and for the consequential relief of injunction. They also denied that they interfered with the possession of the plaintiffs on 30.12.1993 and 23.01.1994 and tried to evict the plaintiffs. They contended that there was no cause of action to file the suit and the plaintiffs had no locus standi and prayed to dismiss the suit.

4. Basing on the said pleadings, the trial court framed the issues as follows:

1) Whether the plaintiffs are entitled to be declared as owners and pattedars of plaint schedule land?

2) Whether the plaintiffs are entitled for perpetual injunction as prayed for?

3) To what relief the plaintiffs are entitled to?

5. PWs.1 to 3 were examined on behalf of the plaintiffs and Exs.A1 to A18 were marked. DWs.1 to 3 were examined on behalf of the defendants and Exs.B1 to B20 were marked.

6. On considering the oral and documentary evidence on record, the trial court decreed the suit observing that the plaintiffs were in possession of the suit land for more than 40 years as such, they perfected their title by adverse possession. Since Section 47 of the Tenancy Act was subsequently deleted, no permission was required and the absence of the permission would not invalidate the sale. The plaintiffs were entitled for declaration as owners by virtue of either Ex.A1 or by virtue of adverse possession being in possession of more than the statutory period having perfected their title.

7. Aggrieved by the said judgment and decree passed by the Junior Civil Judge, Mahabubnagar, the defendants preferred an appeal. The appeal was heard by the II-Additional District and Sessions Judge, Mahabubnagar and vide A.S. No.22 of 2000, the appeal was allowed setting aside the judgment of the trial court on 01.02.2005. The respondents-plaintiffs had not submitted their arguments in the first appellate court. On hearing the learned counsel for the appellants-defendants and on considering the matter on meri