Page 1 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021
IN THE COURT OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
SIDDIPET.
Present : Sri Y. Jaya Prasad,
I Addl. District & Sessions Judge, Siddipet.
Monday, the 06 th day of April, 2026.
A.S. (New) No. 26 of 2022
A.S. (Old) No. 44 of 2021
Between :-
Sundaragiri Siddi Rajaiah @ Siddi Raju, S/o. Late Siddaiah, aged : 61 years, Occ : Agriculture, R/o. Marmamula (V), Maddur (M), Warangal district.
…Appellant
A N D
1. Sundaragiri Ramulu, S/o. Late Siddaiah, aged : 68 years, Occ : Agriculture, R/o. Marmamula (V), Maddur (M), Warangal district.
2. Tallapally Sathavva, W/o. Narsaiah, aged : 63 years, Occ : house wife, R/o. Thornala (V), Maddur (M), Warangal district.
3. Balagoni Kanakavva, W/o. Kistaiah, aged : 57 years, Occ : house wife, R/o. Basireddipally (V), Bachannapet (M), Warangal district.
4. Sundaragiri Narsimhulu, S/o. Chinna Ramaiah, aged : 55 years, Occ : Agriculture, R/o. Marmamula (V), Maddur (M), Warangal district.
5. Sheelam Murahari, S/o. Yellaiah, Age : 51 years, Occ : Agriculture, R/o. Marmamula (V), Maddur (M), Warangal district.
6. Bangla Raji Reddy, S/o. Ram Reddy, Age : 47 years, Occ : Agriculture, R/o. Marmamula (V), Maddur (M), Warangal district.
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7. Bangla Srinivas Reddy, S/o. Ram Reddy, Age : 40 years, Occ : Agriculture, R/o. Marmamula (V), Maddur (M), Warangal district.
8. Sheelam Narsimhulu, S/o. Mallaiah, Age : 37 years, Occ : Agriculture, R/o. Marmamula (V), Maddur (M), Warangal district.
…Respondents
Aggrieved by the Judgment and Decree, dated 26.04.2021 passed by the learned
Senior Civil Judge, Jangaon in
O.S.No. 44 of 2014
Between :- Sundaragiri Siddi Rajaiah @ Siddi Raju …Plaintiff A N D
Sundaragiri Ramulu & 7 others …Defendants
This Appeal Suit is coming up before me for final hearing in the presence of Sri G. Murali Krishna Rao, Counsel for the Appellant, Sri M. Venkateshwar Rao, Counsel for the Respondent Nos. 1, 4 to 8, while Respondent Nos. 2 and 3 set exparte ; and upon hearing and after perusing the material papers available on record and having stood over for consideration till this date, this Court delivered the following :-
-: J U D G M E N T :-
1.The unsuccessful plaintiff is before this Court assailing the judgment and decree rendered by learned Senior Civil Judge, Jangaon in O.S.No. 44 of 2014 vide
Judgment, dt : 26-04-2021 on the ground that the learned trial court had not properly appreciated the oral and documentary evidence, got itself misdirected resultantly dismissed the suit with costs.
2.Briefly stated the pleadings before the learned trial court are as follows :-
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(i). PLEADINGS OF PLAINTIFF :- Plaintiff and defendant No. 1 are sons, defendant Nos. 2 and 3 are daughters of Mr. Sundaragiri Siddaiah. Mr. Sundaragiri
Siddaiah during his life time had purchased the suit schedule property of
Ac. 1-01 gts. in Sy.No. 631/A and Ac. 1-01 gts. in Sy.No. 631/B, totaling to an extent of Ac.2-02 gts., situated at Marmamula village, Maddur mandal, Warangal district from one Mr. Janga Mohan Reddy through registered sale deed document
No. 779/1990, dt : 04-09-1990 registered on the file of Sub-Registrar, Cherial. Said
Mr. Sundaragiri Siddaiah had also purchased Ac. 5-06 gts. in Sy.No. 625/A and
Ac.4-10 gts. in Sy.No. 629/A, total admeasuring Ac. 9-16 gts. from one Mr. Janga
Sudhakar Reddy through registered sale deed document No. 778/1990,
dt : 04-09-1990 registered on the file of SRO, Cherial in the name of plaintiff and
defendant No. 1. The said property was purchased by said Mr. Sundaragiri
Siddaiah, father of plaintiff and defendant Nos. 1 to 3 from and out of joint family funds. There was a civil dispute vide OS No. 17/2007 filed by defendant No. 1 in respect of the land purchased through registered sale deed document
No. 778/1990 admeasuring Ac.9-16 gts. on the file of learned trial court between plaintiff and defendant No. 1, the same having been decreed, plaintiff herein preferred appeal before Hon’ble High Court and it is pending. That the father of plaintiff and defendant No. 1 dug a huge open well having spent Rs. 2 lakhs for it’s revetment in the year 1991. He had also obtained electricity connection and was cultivating the suit schedule land. Said Sundaragiri Siddaiah died on 03-7-2010 while his wife Mrs. Sundaragiri Chandravva pre-deceased him on 23-08-2007. So, it is only plaintiff and defendant Nos. 1 to 3 to succeed them. After the death of their
Page 4 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 father defendant No.1 was managing the properties being elder son. Plaintiff demanded defendant No. 1 for partition of suit schedule property on 12-05-2014 but defendant No. 1 procrastinated on the ground that OS No. 17/2007 is pending.
While it was so defendant No. 1 to deprive the right and share of the plaintiff over suit schedule property sold it to defendant Nos. 4 to 8 vide registered sale deed document No. 44/2002, dt : 16-1-2002 in favour of defendant No. 4 in turn defendant No. 4 sold vide registered sale deed document No. 2253/2007,
dt : 05-10-2007 in favour of defendant No. 5. Thus, the possession of defendant
Nos. 4 to 8 over suit schedule properties is illegal and they cannot acquire any interest over suit schedule property. As a matter of fact plaintiff’s father had never sold suit schedule property during his life time and he never executed any registered document in favour of any third party. That defendant No. 1 cannot sell suit schedule property in favour of defendant Nos. 4 and 5 and in turn other defendants including that of the share of the plaintiff. Thus the suit schedule property is liable for partition among plaintiff and defendant Nos. 1 to 3 each 1/4th share therein. The registered sale deeds in favour of defendant Nos. 4 to 8 executed by defendant No. 1 are not binding on the plaintiff. So, the plaintiff seeks for partition of suit schedule property into four equal shares and allotment of one such share in favour of plaintiff and defendat Nos. 1 to 3.
(ii). PLEADINGS OF DEFENDANTS :-
(a). Resisting the plaint defendant No. 1 filed written statement while admitting the relationship between plaintiff and defendant Nos. 1 to 3 denied and
Page 5 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 disputed the entire pleadings of plaintiff. It is the specific plea of defendant No. 1 that the claim and contention of the plaintiff that Mr. Sundaragiri Siddaiah purchased suit schedule property vide registered sale deed document No.
779/1990 is false and incorrect. Indeed the property was purchased by defendant
No. 1 in the name of his father nominally being the elder of the family. That it is the defendant No. 1, the owner of suit schedule property for his needs alienated the same in favour of defendant No. 4 and inducted defendant No. 4 into it’s possession, having sold through registered sale deed document No. 44/2002,
dt : 16-1-2002. As such defendant No. 4 had become absolute owner and in it’s
possession till it was in turn sold in favour of defendant No. 5 through registered sale deed document No. 2253/2007, dt : 05-10-2007 and continuing possession thereon. That defendant No. 5 made the suit schedule land into house plots and sold to third parties. Defendant Nos. 5 and 6 constructed houses as such neither plaintiff nor defendant Nos. 1 and 2 got any interest there-over. The claim and contention of the plaintiff as regards the land purchased by registered sale deed document No. 778/1990, dt : 04-9-1990 by Sundaragiri Siddaiah from and out of joint family funds, which is the subject matter of OS No. 17/2007, is false and incorrect. As a matter of fact there was no joint family as on 04-09-1990. That plaintiff and defendant No. 1 jointly purchased property with their own funds.
Defendant No. 1 filed OS No. 17/2007 and sought for partition of suit schedule property. The same was decreed, and decree and judgment was confirmed in AS
No. 76/2009. That in no less clear terms in OS No. 17/2007 as well as AS No.
76/2009 the plaintiff herein pleaded that said property was purchased from and out
Page 6 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 of joint family funds and the plea was disbelieved by the court and the suit was decreed consequently. That the father of plaintiff and defendant No. 1 to 3 never developed the property. The claim of the plaintiff to that effect is totally false and he was never in possession thereof. As a matter of fact the well therein was dug by predecessor title holder Mr. Bangla Ram Reddy in the year 1985-86. Even electricity connection was drawn by defendant No. 1. Father of plaintiff and defendant Nos. 1 to 3 never cultivated said land till his death. As on that date he does not possess any properties. The claim of the plaintiff that defendant No. 1 managing the suit schedule property being the elder son is false. In the same breath the alleged demand by plaintiff on 12-05-2014 for division of the properties is also a false statement created for the purpose of the suit. By that time property was already sold and was not available for partition. That the defendant as a matter of fact in his own right as absolute owner alienated for a valid and valuable sale consideration. The plaintiff does not have any locus-standi as such to question the sale. There was no cause of action to institute the plaint. Thus defendant No. 1 requests to dismiss the suit with costs.
(b). Defendant Nos. 2 and 3 filed their separate written statement supporting the pleadings of plaintiff that, suit schedule property is the acquisition of their father.
The property has not been partitioned among plaintiff and defendant Nos. 1 to 3 as such the same is liable for partition. That defendant Nos. 2 and 3 are having each a share with plaintiff and defendant No. 1. Thus they requested for partition and allotment of 1/4th share each of them.
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(c). Defendant Nos. 4 to 8 filed their separate written statement supporting the pleadings of defendant No. 1 ; and denying and disputing the claim of plaintiff and defendant Nos. 2 and 3. It is specifically pleaded by defendant Nos. 4 to 8 that defendant No. 1 purchased suit land from Janga Mohan Reddy for a valid and valuable consideration through registered sale deed in the name of his father nominally being elder of the family. Later got it mutated in his name in revenue records. He had been issued pattadar pass book and title deed. Thus defendant
No. 1 having become the absolute owner, sold it in favour of defendant No. 4. The claim of the plaintiff that their father had purchased Ac. 9-16 gts. in Sy.Nos. 625/A and 629/A each Ac. 5-06 gts and Ac. 4-10 gts. respectively vide registered sale deed document No. 778/1990 in the name of plaintiff and defendant No. 1 is also false and incorrect. Said contention was disbelieved by learned Senior Civil Judge’s
Court in O.S.No. 17/2007. The same was confirmed in AS No. 76/2009. In the same vein contention of the plaintiff that the properties vide registered sale deed document Nos. 778/1990 and 779/1990, dt: 04-09-1990 was purchased from and out of joint family funds is false and the suit schedule property was not developed by the father of plaintiff and defendant Nos. 1 to 3. That as a matter of fact till the death of Mr. Sundaragiri Siddaiah, father of plaintiff and defendant Nos. 1 to 3 he did not possess and own any property as such. The contention of the plaintiff to have demanded defendant No. 1 for partition on 12-05-2014 is also false. That suit schedule property is not liable for partition. Plaintiff and defendant Nos. 1 to 3 have no right to seek partition of suit schedule property as absolute owner. Through registered sale deed defendant No. 1 sold suit schedule property in favour of
Page 8 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 defendant No. 4 to the knowledge of plaintiff, defendant Nos. 2 and 3, defendant
No. 4 for his needs sold it in favour of defendant No. 5 vide registered sale deed document No. 2253/2007, dt: 05-10-2007. Defendant No. 5 made it into plots and sold to different persons and they had constructed houses. Likewise defendant No.
5 constructed house bearing No. 6-9/A in the year 2008 in the name of his wife namely Sheelam Aruna. In the same fashion defendant No. 6 also purchased 150 Sq. Yards from defendant No. 5 vide sale deed document No. 2583/2007,
dt : 21-11-2007 and constructed a house bearing No. 6-9/1 in the name of his wife
B.Sowjanya in the year 2008. Likewise defendant No. 7 purchased plot admeasuring 250 Sq. Yards from defendant No. 5 vide registered sale deed document No. 2583/2007, dt: 21-11-2007 and he was inducted into it’s possession.
One Mrs. Annapureddy Gouramma purchased a plot from and out of suit land admeasuring 300 Sq. Yards from defendant No. 8 vide registered sale deed document No. 1290/2013, dt : 14-3-2013. Defendant No. 8 is brother brother of defendant No. 5, he also purchased a plot out of suit land to the knowledge of defendant Nos. 2 and 3. Thus, defendant Nos. 4 to 8 are bonafide purchasers for a valid and valuable sale consideration. As such the claim and contention of the plaintiff that defendant Nos. 5 to 8 do not have any interest over suit schedule properties incorrect. That Mr. Sundaragiri Siddaiah during his life time has not challenged the sale deed executed in favour of defendant Nos. 4 and 5 by defendant No. 1 as such the title hold right of defendant Nos. 4 and 5 and subsequent purchasers cannot be called in question in the suit. That even if the purchase by Sundaragiri Siddaiah through registered sale deed is taken to be the
Page 9 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 criteria the possession of defendant Nos. 1, 4 and 5 commencing from the year 1993 has become adverse and hostile and also continuous. Now the plaintiff is estopped to claim any title hold interest. That the plaintiff cannot seek partition of suit schedule property on the ground that it’s joint family property for defendant
Nos. 4 and 5 perfected their title by way of prescription. That plaintiff, defendant
Nos. 1 to 3 do not have any subsisting right, title or interest over suit schedule property. The suit is incorrectly valued and the court fee paid thereon is also deficit and incorrect. So, defendant Nos. 4 to 8 requested to dismiss the suit with exemplary costs.
3.Basing on the rival pleadings the learned trial court settled the following issues for trial :-
1. Whether the suit schedule property is a joint family property of plaintiff and defendant Nos. 1 to 3 ?
2. Whether the defendant Nos. 4 to 8 are bonafide purchasers of the suit schedule property for valuable consideration ?
3. Whether the suit schedule property is available for partition ?
4. Whether the plaintiff is entitled for partition and separate possession as prayed for ?
5. Whether the suit relief is under valued and the court fee paid is insufficient ?
6. Whether there is cause of action to file the suit ?
7. To what relief ?
4.An additional issue was also framed to the effect that “Whether the suit is time barred and defendants are to be declared as adverse in possession ?”
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5.At trial while plaintiff himself got examined as PW-1 besides examining
V.Jogireddy as PW2 and P. Rajireddy as PW3 and exhibited A-1 to A-13.
Defendant No. 1 himself got examined as DW-1 and defendant No. 4 got examined as DW-2, defendant No. 5 got examined as DW-3. One Mr. B.Rajireddy and
V.Venkataiah got examined as DWs. 4 and 5 respectively and exhibited B-1 to
B-24. Exs. D-1 to D-4 are also exhibited during the cross-examination of DW-1 for defendants.
6.Considering the oral and documentary evidence learned trial court dismissed the suit with costs.
7.Learned counsel for appellant filed written arguments. Heard learned counsel
for respondents. Perused entire record.
8.Now the sole point that falls for consideration is,Whether the judgment and
decree rendered by learned trial court dismissing the suit can be sustained
either in law or on facts ? Does it need indulgence of this Court from any of
the stand points ?
POINT :-
9.In the light of the rival pleadings, the oral and documentary evidence adduced on both side and on consideration of the judgment of learned trial court following points emerge for consideration : -
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(1). Whether the suit schedule property was indeed purchased by the
father of plaintiff and defendant Nos. 1 to 3 by name Sundaragiri Siddaiah or
it was nominally purchased in his name by defendant No. 1 ?
(2). Whether defendant No. 1’s sale of suit schedule property in favour
of defendant No. 4 was legal and valid ?
(3). Whether defendant No. 4 acquired title hold rights over suit
schedule property having purchased the same from defendant No. 1 vide
registered sale deed document No. 44/2002, dt : 16-1-2002 and is sale of the
same in favour of defendant No. 5 vide registered sale deed document No.
2253/2007, dt : 05-10-2007 conveyed interest of title hold right over suit
schedule property in favour of defendant No. 5 ?
(4). Whether the suit is barred by limitation consequently the defendant
Nos. 1 and 4 to 8 perfected their title over suit schedule property by way of
adverse possession ?
Point Nos. 1 to 3 :-
10.The plaintiff pleads that the suit schedule property was purchased by father of plaintiff and defendant Nos. 1 to 3 namely Sundaragiri Siddaiah vide registered sale deed document No. 779/1990, dt : 04-09-1990. The same is testified by PWs.1 to 3. Likewise Ex.A1 registered sale deed document No. 779/1990, dt : 04-09-1990 substantiates and corroborates the plea of the plaintiff, that the suit schedule property was purchased by father of the plaintiff and defendant Nos. 1 to 3. On the other hand it is pleaded by defendant No. 1 that the claim of the plaintiff that the suit
Page 12 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 schedule property was purchased by father of plaintiff and defendant Nos. 1 to 3 is totally false and incorrect. That the sale deed was nominally executed in the name of plaintiff’s father, being elder of the family. As a matter of fact the property was indeed purchased by defendant No. 1 himself but nominally in the name of their father Sundaragiri Siddaiah. Accordingly there is a greater degree onus on part of defendant to prove that the purchase of suit schedule property in the name of plaintiff’s father was just for name sake indeed it was purchased by defendant No.1.
In this regard a plain perusal of Ex.A1 does not reveal anything that it was nominally purchased by defendant No. 1 in the name of his father indeed the sale consideration there-under was paid by defendant No. 1. No evidence is adduced by defendant to substantiate his claim that the suit schedule property, as a matter of fact was purchased by defendant himself in the name of his father nominally. None of the documents adduced by defendant nor the oral evidence adduced by him, demonstrates such a fact. Undoubtedly the name of defendant No. 1 reflects in revenue records to be the pattadar and possessor, till it was sold in favour of defendant No. 4 through registered sale deed document No. 44/2002,
dt : 16-01-2002. Said fact can be perceived from the documentary evidence
adduced by defendant as DW-1 through Exs. B1 to B5 pahanies. The subsequent pahanies of course demonstrate the name of defendant No. 4 who purchased from defendant No. 1.
11.Now the point is plaintiff could prove through Ex.A1 that the suit schedule property was purchased by his father and he died indisputably on 03-07-2010
Page 13 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 intestate. Indisputably the revenue record exhibited under B-1 to B-16 demonstrate the name of defendant No. 1 and the subsequent purchasers defendant Nos. 4 and 5 in respect of suit schedule property. It is significant to be noted that as on the date of alienation of suit schedule property by defendant No. 1 in favour of defendant
No. 4 through registered sale deed document No. 44/2002, dt : 16-01-2002 and subsequent thereto vide Ex.A3 document No. 2253/2007, dt : 05-10-2007 where alienation were made in favour of defendant Nos. 4 and 5, the original owner, who is the father of plaintiff and defendant Nos. 1 to 3, is very much alive. It is not that the father of plaintiff and defendant Nos. 1 to 3 assented for such a sale by defendant No. 1 nor the sale was to the knowledge of the plaintiff and defendant
Nos. 2 and 3 or their father. Nor defendant adduced any evidence that such sale of suit schedule property vide Ex.A2 in favour of defendant No. 4 was either to the knowledge or with the consent of plaintiff and defendant Nos. 2 and 3 or their father. As is noted herein above indisputably the revenue entries demonstrate the name of defendant No. 1, 4 and 5, which is not be all and end all to assert title hold right.
12.It is settled proposition of Law that mere entry in revenue record per se does not confer title nor demonstrate title hold right.
13.In P. Kishore Kumar Vs. Vittal K. Patkar, (Civil Appeal No. 7210 of 2011,
dt : 20-11-2023) reported in 2023 Live Law (SC) 999, Hon’ble Supreme Court of
India held as under :-
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11. It is trite law that revenue records are not documents of title.
12. This Court in Sawarni vs. Inder Kaur and Ors. held that mutation in revenue records neither creates nor extinguishes title, nor does it have any presumptive value on title. All it does is entitle the person in whose favour mutation is done to pay the land revenue in question.
13. This was further affirmed in Balwant Singh & Ors vs. Daulat Singh (Dead) by LRs and Ors. wherein this Court held that mere mutation of records would not divest the owners of a land of their right, title and interest in the land.
14. In Jitendra Singh vs. State of Madhya Pradesh and Ors., this Court after considering a catena of judgments, reiterated the principle of law as follows:
“6. ***mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose.”
15. We may also profitably refer to the decision of this Court in Sita Ram Bhau Patil vs. Ramchandra Nago Patil (Dead) by LRs. and Ors. wherein it was held that there exists no universal principle that whatever will appear in the record of rights will be presumed to be correct, when there exists evidence to the contrary.
18. It is settled law that a vendor cannot transfer a title to the vendee better than he himself possesses, the principle arising from the maxim nemo dat quod non habet, i.e., "no one can confer a better title than what he himself has". In the present case, the plaintiff’s vendor having been denied the right of title in the land by the Commissioner’s order, could not have conveyed the same to her vendee.
14.It is more so when the registered sale deed stands in the name of father of plaintiff and defendant Nos. 1 to 3, who never proved to have sold the property. In
Page 15 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 addition the defendants failed to demonstrate that such purchase of suit schedule property was in the name of plaintiff’s father was nominal and the sale consideration was paid by defendant No. 1. Defendant as DW-1 admits he has not filed 1-B ROR and 7-Amended Register. So also he has not filed any document demonstrating his title hold right over suit schedule property. No proceedings as such is filed by defendant No. 1 demonstrating the mutation proceedings in his name to the knowledge of his father and brothers. So, also in the same breath no evidence is adduced by defendants that such a mutation of the name of defendant
Nos. 1, 4 and 5 in respect of suit schedule property was notified to either plaintiff, defendant Nos. 2 and 3 or father of plaintiff and defendant Nos. 1 to 3. Therefore, it is proved that defendant having no manner of right over suit schedule property muchless over the share of plaintiff and defendant Nos. 2 and 3 resorted to it’s illegal alienation in favour of defendant No. 4 by way of registered sale deed document No. 44/2002, dt ; 16-01-2002 as such the defendant No. 4 cannot acquire any sort of interest over suit schedule property by virtue of Ex.A2 registered sale deed since his vendor had no right to alienate suit schedule property including that of the plaintiff and the defendant Nos. 2 and 3’s share.
15.Here the principle of ‘nemo dat quod non habet (a vendor cannot transfer valid ownership of property, where upon himself lacks)’ can rightly be pressed into service. Thus a vendor who does not have interest over property cannot transfer onto his vendor. So, the vendee cannot acquire the interest which is the vendor does not possess over the property. In view of these circumstances defendant No.
Page 16 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 4 had not acquired title hold right by way of registered purchase of suit schedule property over the undivided share of plaintiff and defendant Nos. 2 and 3 and thereby his alienation in turn in favour of defendant No. 5 vide registered sale deed document No. 2253/2007, dt : 05-10-2007 cannot also convey title hold rights.
Accordingly in favour of defendant No. 5 also no title hold rights passes. The same analogy applies to the subsequent purchasers i.e., defendant No. 6 to 8 also.
Point No. 4 :-
16.As is observed the learned trial court finds merit in the case of the defendant that the suit is barred by limitation in terms of Article 65 of Limitation Act, 1963 and the plaintiff lost his ownership right over suit schedule property by efflux of time in terms of section 27 of Limitation Act. Thus came to conclusion that there was no suit schedule property as such for apportionment among plaintiff and defendant
Nos. 1 to 3. Indisputably the so-called alienation by defendant No. 1 was made in favour of defendant No. 4 vide Ex.A2 registered sale deed document No. 44/2002,
dt : 16-01-2002. Whereas the suit in question was laid on 07-07-2014, well after
12 years of the alienation of the suit schedule property by defendant No. 1 in favour of defendant No. 4. In this regard it is to be noted firstly that defendant No. 4 claims title hold right over suit schedule property by virtue of sale made by defendant No. 1 which is herein found is illegal and invalid. Thus while claiming purchase and acquiring thereby the title hold ownership right the defendant Nos. 1 and 4 cannot plead adverse possession.
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17.Here the concept of adverse possession is the “Hostile” possession over the presumptive period being completed turns into “title hold right” over the property.
But in the instant case the defendant’s right is claimed to have acquired by virtue of purchase and subsequent thereto got into possession which is claimed to have resulted into perfection of title. Essentially the starting point when “adverse possession” is claimed it is the “possession” that too hostile to the real owner but not title hold right by way of purchase. When the purchase itself is illegal and subsequent acquisition does not arise as the defendant cannot claim simultaneously “title hold right” and “possessory right”. In this regard it is significant to be noted that unless a co-owner’s right to seek partition is being lost owing to “ouster” with cogent and consistent evidence, the other co-owner cannot put-forth the claim of the adverse possession. For such a matter even his vendee cannot put-forth such adverse possession as against co-sharer.
18.It is settled Principle of Law that “possession of one co-owner” does not amount ouster of the either co-owner or sharer. As long as the property remained joint the right to seek partition becomes the continuous right whereby the co-sharer who seeks partition need not physically be in possession of the property. Thus possession of one co-sharer is treated as possession of all co-sharers. So, it is possession of one is possession of all other sharers are deemed to be in constructive possession, over the property. It is to be noted that as herein above observed that the original owner of suit schedule property being the father of plaintiff and defendant Nos. 1 to 3 on his death intestate the property turns liable to
Page 18 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 be partitioned among plaintiff and defendant Nos. 1 to 3. As such the alienation of defendant No. 1 in favour of defendant No. 4 was invalid and illegal. Basing on such an invalid sale the subsequent purchasers defendant Nos. 4 and 5 cannot put- forth the ground of adverse possession.
19.For clarity and apprehension let the plea of adverse possession as is taken by defendant Nos. 4 to 8 be adverted to which is to the following effect.
20.Para No. 11 of written statement of defendant Nos. 4 to 8 :- “These defendants alternatively without prejudice to their above pleas, submits that even the alleged sale deed in the name Sunddaragiri Siddaiah is of taken to be true for a while for the sake of argument, his title was extinguished by virtue of hostile continuous and open possession of defendant Nos. 1, 4 and 5 as owner for more than statutory period commencing from 1993 onwards till his death i.e., 03-7-2010. The plaintiff is estopped from claiming any right or interest over the suit schedule property. The plaintiff in the earlier suit did not plead that the suit land is the joint family property. The defendant Nos. 4 and 5 have prescribed their title over the suit land by virtue of their hostile, open and continuous possession to the knowledge of everybody in the village including late Sundaragiri Siddaiah, the plaintiff, defendant Nos. 2 and 3 herein by tacking the possession of defendant
No.1. Neither the plaintiff nor the defendants 1 to 3 got any subsisting right or title over the suit schedule land.”
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21.Essentially in order to prove the claim of adverse possession the defendant
Nos. 1, 4 to 8 need to prove the claim of adverse possession with consistent and cogent evidence. Adverse possession is hostile possession clearly asserting hostile to the title of the true owner. It is well settled principle of law that a party claiming adverse possession must prove that his possession is ………. “nec vi, nec clam, nec precario” i.e., peaceful, open and continuous. The possession must be adequate, actual, exclusive, continuous and hostile to the true owners. The physical fact of exclusive and the Animus Possidendi to hold as owner in exclusion of the actual owner are the important factors. Thus keeping in view these settled requirements of the concept of adverse possession, it is apposite to verify whether defendants perfected their title against the true owner.
22.As is already noted herein above defendant No. 1 was not the true and absolute owner of suit schedule property since the property is not proved to have been purchased by himself as is pleaded in the written statement. Ex.A1 demonstrates that the suit schedule property was purchased by his father
Sundaragiri Siddaiah under registered sale deed. Therefore, as against defendant no adverse possession can be claimed, since he is not true owner.
23.Now the question that falls to be considered is whether defendant No. 1 perfected his title as on the date of alienation of suit schedule property under Ex.A2 registered sale deed document No. 44/2002, dt : 16-01-2002 against true owner his father. In this context it is to be observed that indisputably the father of plaintiff and
Page 20 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 defendant Nos. 1 to 3 namely Sundaragiri Siddaiah died on 03-7-2010 as was admitted in the cross-examination by DW-1. Defendant No. 1 though claimed to have purchased the property through a simple sale deed. It has also not been neither proved by any of the defendants and as is noted herein above there is no either title deed in it’s original by way of purchase in the name of defendant No. 1 or title deed issued under ROR Act in favour of defendant No. 1 admittedly. Therefore, it is the only possession basing on which the defendant No. 1 claims perfection of his title so as to have got alienable interest over suit schedule property. Now this aspect is to be considered. Indisputably father of plaintiff and defendant Nos. 1 to 3 namely Sundaragiri Siddaiah purchased suit schedule property under Ex.A1 registered sale deed document No. 779/1990, dt : 04-09-1990. The defendant Nos.
1 and 4 to 8 claimed that defendant No. 1 had got his name mutated in revenue records by none other than father of defendant No. 1, as such defendant No. 1 perfected his title. In connection with the claim of the defendant Nos. 1 and 4 to 8 that plaintiff’s father himself got mutated the name of defendant No. 1 in revenue records is concerned, there is not even a modicum of proof. So, ultimately what remained on the record to be considered is under Exs.B1 to B5 pahanies defendants could demonstrate the possession of the defendant No.1 as pattadar and possessor in the pahanies.
24.It is settled principle of law that revenue entries per se do not confer title hold rights, muchless alienable right over immovable property. Therefore, as is contended by the defendant Nos. 1 and 4 to 8 whether defendant No. 1 had
Page 21 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 perfected his title as against his father, the original owner and title holder. Through
Exs. B1 to B5 wherein defendant No. 1 is shown as possessor and pattadar from 1993 onwards to 2002. The alienation was made in favour of defendant No. 4 under
Ex.A2 registered sale deed document No. 44/2002 on 16-01-2002. As such the nexus of defendant No. 1 with the suit schedule property is to be reckoned with
Exs. B1 to B5. When the pahanies commencing from 1993-94 till alienation of the property under Ex.A2 on 16-01-2002 by that date defendant No. 1 has not perfected his title even as possessor against his father, who died on 03-07-2010.
Therefore, two things emerge firstly defendant No. 1 is not the purchaser of suit schedule property as is claimed by him either by way of registered sale deed or by way of nominal sale deed as well as there is no proof that defendant No. 1 holding the property as title holder having his name been mutated in revenue records by his father Sundaragiri Siddaiah. Secondly defendant No. 1 could not prove to have become the absolute owner having perfected his title by way of adverse possession since by the time he alienated the suit schedule property under Ex.A2 registered sale deed document No. 44/2002, dt : 16-01-2002 he was not in adverse possession for 12 years, when his possession is reckoned from 1993. So in both the ways defendant No. 1 is not the owner of suit schedule property and his alienation by way of Ex.A2 in favour of defendant No. 4 is illegal and invalid. Thus the plea of adverse possession as regards defendant No. 1 cannot be considered.
25.Then coming to defendant Nos. 4 and 5 are concerned defendant No. 4 sold suit schedule property in favour of defendant No. 5 having got his name mutated in
Page 22 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 revenue records and having been shown as pattadar and possessor from 2002 onwards till it’s alienation vide registered sale deed document No. 2253/2007,
dt : 05-10-2007. Here significant to be noted that the principle as is already noted
the nemo dat quod non habet comes into play and the title hold rights which the vendor the defendant No. 1 himself did not possess cannot pass onto defendant
No. 4 and the same analogy gets applied to defendant No. 5 in the alienation resorted to defendant No. 4 in favour of defendant No. 5 through Ex.A3 registered sale deed document No. 2253/2007, dt : 05-10-2007. Here it is also pertinent to be noted that even defendant No. 4 cannot claim adverse possession against the father of the plaintiff and defendant Nos. 1 to 3 since his vendor defendant No. 1 himself had not perfected his title even by way of “adverse possession” as is noted herein above. Consequently it is father of plaintiff and defendant Nos. 1 to 3 remained to be the absolute owner till his death on 03-07-2010. Accordingly on his death intestate the plaintiff acquires interest in the suit schedule property for his 1/4th share with defendant Nos. 1 to 3. As such the suit being filed by defendant
No. 1 on 07-07-2014 is very much within limitation. Therefore, the defendants cannot be heard to claim her suit is barred by limitation.
26.Secondly coming to the aspect of adverse possession the Law is very much settled as is noted herein above the possession of the defendant who claims adverse possession should be to the knowledge of the true owner as is observed by Hon’ble Apex Court in conspectus of proposition. As is noted herein above the true owner of suit schedule property is the father of plaintiff and defendant Nos. 1
Page 23 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 to 3. Therefore, the possession of defendant Nos. 1 and 4 to 8 should be to his knowledge, which must be shown consistent, cogent and convincing but as is noted herein above no such evidence is adduced by defendants. Merely because the names of defendant Nos. 1 and 4 to 8 got mutated in revenue records. It cannot be said that it is to the knowledge of the true owner. Here it is also not out of place to state that Section 3 Transfer of Property Act deals with constructive notice only to the extent of the prospective purchasers, subsequent to the purchaser but not to the true owner where adverse possession is claimed.
27.Thus viewed from any of the stand points the claim of the defendants as to the title hold right by way of adverse possession is not legal and the same has not been demonstrated by the oral and documentary evidence on record.
28.Therefore, the finding of the learned trial court that the defendant No. 1, 4 to 8 having become the title holders perfected their title by way of adverse possession is not valid, the learned trial court not appreciated the factual and legal aspects from the factual side and came to incorrect decision and recorded a finding thereof which cannot be sustained either in Law or on facts.
29.The evidence on record demonstrates indisputably the relationship between plaintiff and defendant Nos. 1 to 3 being the children of original owner Sundaragiri
Siddaiah, who purchased the property through registered sale deed. On his death intestate it is plaintiff and defendant Nos. 1 to 3 had become successors of the
Page 24 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 estate left behind by their father. Thus the suit schedule property is liable to be apportioned between the plaintiff and defendant Nos. 1 to 3. Secondly the registered sale deed executed by defendant No. 1 in favour of defendant No. 4 under Ex.A2 registered sale deed vide document No. 44/2002, dt : 16-01-2002 and
Ex.A3 registered sale deed document No. 2253/2007, dt : 05-10-2007 executed by defendant No. 4 in favour of defendant No.5 and are not binding on the plaintiff.
30.Hon’ble Supreme Court of India in Shri Uttam Chand (D) through LRs. Vs.
Nathu Ram (D) through LRs. and others in Civil Appeal No. 190/2020,
dt : 15-01-2020 held as under :-
11. In T. Anjanappa, this Court has set aside the finding of the High Court that the defendants claiming adverse possession do not have to prove who is the true owner. If the defendants are not sure who the true owner is, the question of them being in hostile possession as well as of denying the title of the true owner does not arise. The Court held as under:
“12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
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13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:
“24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co- owners.” (See Vidya Devi v. Prem Prakash [(1995) 4 SCC 496] , SCC p. 504, para 24.)
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:
“14. … Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act,] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. …
15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the
Page 26 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. (See Annasaheb Bapusaheb Patil v. Balwant [(1995) 2 SCC 543, p. 554 : AIR 1995 SC 895, p. 902] , SCC p. 554, paras 14-15.)”
12. In Kurella Naga Druva Vudaya Bhaskara Rao, the payment of tax receipts and mere possession for some years was found insufficient to claim adverse possession. It was held that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be sufficient.
The Court held as under:
“19. The defendant claimed that he had perfected his title by adverse possession by being in open, continuous and hostile possession of the suit property from 1957. He also produced some tax receipts showing that he has paid the taxes in regard to the suit land. Some tax receipts also showed that he paid the tax on behalf of someone else. After considering the oral and documentary evidence, both the courts have entered a concurrent finding that the defendant did not establish adverse possession, and that mere possession for some years was not sufficient to claim adverse possession, unless such possession was hostile possession, denying the title of the true owner. The courts have pointed out that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be sufficient and he had to show that his possession was also hostile to the title and possession of the true owner. After detailed analysis of the oral and documentary evidence, the trial court and the High Court also held that the appellant was only managing the properties on behalf of the plaintiff and his occupation was not hostile possession.”
In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable.
Consequently, the judgment and decree passed by the High Court is set aside and the suit is decreed. The appeal is allowed.”
Page 27 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021
31.Hon’ble Supreme Court of India in M. Radheshyamlal versus V Sandhya and Anr. Etc. in Civil Appeal Nos. 4322 – 4324 of 2024, dt : 18-03-2024 held as under :-
11. In the case of Karnataka Board of Wakf v. Govt. of India and
Ors.2, in paragraph 11, this Court has laid down the law regarding the plea of adverse possession. Paragraph 11 reads thus:
“11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] , Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567] .) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that 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. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) 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, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128]” (underline supplied)
Page 28 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021
12.Therefore, to prove the plea of adverse possession :-
(a)The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
(b)The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
(c)The plaintiff must also plead and establish when he came into possession; and
(d)The plaintiff must establish that his possession was open and undisturbed.
It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff.”
32.Since defendant No. 4 has not acquired any interest over suit schedule property his alienation in favour of defendant No. 5 as is noted herein above is also not valid and it cannot transfer any interest in suit schedule property in favour of defendant No. 5. In turn the alienation resorted by defendant No. 5 in favour of defendant Nos. 6 to 8 are not legal and valid. They cannot bind plaintiff. As such the documentary evidence adduced by defendants vide Exs. B1 to B24 are in no way useful to defendant No. 4 in asserting their title hold rights by virtue of adverse possession as is claimed by defendant Nos. 1, 4 and 5 as against deceased original owner Sundaragiri Siddaiah. Keeping aside the entire claim and contention of the defendant to be the owner of suit schedule property by virtue of his alleged purchase, in cross-examination on being confronted with his evidence as PW-1 in
OS No. 17/2007 he made admissions to his pleadings under Exs. D-1 to D-5 in no
less clear terms admitting that the suit schedule property originally was purchased by the father of plaintiff and defendant Nos. 1 to 3 and as on the date of his
Page 29 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 evidence, that was recorded on 24-10-2008 that it is his father, owner of the suit schedule property. For comprehension the relevant portions of evidence of DW-1 can be extracted here.
33.The defendant admits “it is true I filed suit against my brother for partition vide
OS No. 17/2007 on the file of Senior Civil Judge’s Court, Jangaon.” Further he
admits, “it is true I have not shown schedule property of suit in OS No. 17/2007…..”
While admitting his signature on the copy of chief affidavit filed by him in OS No.
17/2007 wherein he states “the land covered by survey numbers 631/A and 631/B measuring Ac. 2-20 gts. (suit schedule property) belong to our father Sundaragiri
Siddaiah, who purchased the same from Janga Mohan Reddy under a registered sale deed, dt : 04-09-1990. I have no way concerned with the said land and I never sold the same to Sundaragiri Narsimulu.” By this statement of defendant herein as
DW-1 in OS No. 17/2007 under oath in no less clear terms declares that the suit schedule property indeed was purchased by father of plaintiff and defendant Nos. 1 to 3 from Janga Mohan Reddy through a registered sale deed, dt : 04-09-1990 with which he had no concern. Further he also stated “…………. on the date of registration of suit schedule property my father purchased land from Janga Mohan
Reddy to an extent of Ac. 2-02 gts. and I do not remember the survey number of my father purchased land. “……….My father’s name mutated in the revenue records land purchased by my father.” “…………..Still my father is the owner of
Ac.2-02 gts. and I filed revenue records which was prepared for the mutation of my name in the revenue records.” Further, defendant as DW-1 states in his cross-
Page 30 of 31 AS (New) No. 26 of 2022 AS (Old) No. 44 of 2021 examination in OS No. 17/2007 “it is not true to say that after mutation of my name in revenue record I sold an extent of Ac. 2-02 gts. in Sy.No. 631/A and B (suit schedule property) to one Sundaragiri Narsimulu through a registered sale deed vide document No. 44/02, dt : 16-1-2002. The signatures shown to me on the sale deed, dt : 16-01-2002 vide document No. 44/2002 is not that of mine.”
34. Thus, it is obvious the defendant in no less clear terms admits that the suit schedule property originally was acquired by the father of plaintiff and defendant
Nos. 1 to 3 with which he had no concern at all. Further he also states that he had never sold the property to defendant No. 4 which is diametrically inconsistent with his plea in written statement. Thus, it is evident that the defendants pleadings is per contra to the statements made by him on oath before learned Senior Civil Judge’s
Court in OS No. 17/2007 as witness and which diametrically runs contrary to the very case of the defendant which obviously demonstrates the falsehood of the claim of the defendant, that plaintiff has no concern with the suit schedule property and he cannot claim any share therein.
35.Here it is not out of place to state that since plaintiff is not the party to the documents, he need not seek their cancellation. Therefore, the suit schedule property is liable to be apportioned between plaintiff and defendant Nos. 1 to 3 equally and plaintiff is entitled for 1/4th share therein and it’s separate possession.
Accordingly the appeal is to be allowed the judgment of learned trial court is to be set aside.
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36.IN THE RESULT :- Appeal is allowed, Judgment of learned trial court,
dt : 26-04-2021 in OS No. 44/2014 is set aside without costs partitioning the suit
schedule property into four equal shares and allotted one such share to plaintiff and defendant Nos. 1 to 3 each and for it’s separate possession. The appellant is at liberty to file final decree petition before the learned trial court in terms of judgment and decree in this appeal.
Dictated to the Stenographer (Grade-I), transcribed and typed by him, corrected
and pronounced by me in the open Court on this the 06 th day of April, 2026.
Sd/-
I Addl. District & Sessions Judge, Siddipet.