P.S. Narayana, J.@mdashThe appellants in the Second Appeal are the defendants in the suit and aggrieved by the reversing Judgment to an extent of Ac.0-38 guntas in S.No. 177 in Dharmaram, H/o. Bhoomireddipalli v/o Sultanabad taluq made in A.S.No. 29/92 on the file of I Additional District Judge, Karimnagar, the present Second Appeal is filed.
2. The respondent in the Second Appeal/ plaintiff instituted the suit O.S.No. 12/83 on the file of District Munsif, Sultanabad originally which was transferred and renumbered as O.S.No. 191/92 on the file of Principal District Munsif, Karimnagar. The suit was originally filed for declaration of title and for perpetual injunction and was later amended claiming the relief of delivery of possession of an extent of 38 guntas and also for mesne profits.
3. It was pleaded in the plaint as follows:
4. The plaintiff is the exclusive owner and possessor of S.No. 177, measuring Acs.3-38 guntas dry situated at Dharmaram, H/o, Bhoomireddipalli, v/o. Sultanbad taluq. The suit land is ancestral property and patta land of the plaintiff. There are ten mango trees in the suit land. The plaintiff had been in exclusive possession and enjoyment of the suit land by paying land revenue. The 2nd defendant is the brother-in-law of the 1st defendant. The 1st defendant got his house near by the suit land. The 1st defendant with the help of the 2nd defendant gathered into a group of unsocial elements and are trying to grab the suit land so as to use the suit land for huts. The 1st defendant is openly proclaiming to construct a stone wall around the part of the suit land and actually on 15-3-1983 came to the suit land with the evil design of occupying the same forcibly and also by denying the title of the plaintiff. But the plaintiff with the help of villagers foiled their attempts and saved himself from the possible dispossession. Ultimately, after vacating the injunction order, the defendants on 15-3-1986 dispossessed the plaintiff from Ac.0-38 guntas of land located in the North - Eastern portion and shown in red colour. The dispossession is illegal. The defendants have no right in the said Ac.0-38 guntas of land. Therefore, they are liable to be evicted from Ac.0-38 guntas and the plaintiff should be put in possession of the said land. Therefore, the plaintiff sought for declaration of his ownership to the suit land measuring Acs.3-38 guntas in S.No. 177 situated at Dharmaram h/o. Bhoomireddipalli v/o. Sulthanabad taluq and for perpetual injunction restraining the defendants from interfering with the possession of the plaintiff in the suit land to the extent of Acs.3-00 and for recovery of possession of Ac.0-38 cents located at North - Eastern portion and shown in red colour in the suit map.
5. The defendants filed a written statement which was no doubt subsequently amended, pleading as follows:
It was pleaded that the plaintiff is not the owner and possessor of the entire extent of land in S.No. 177, but he is the owner and possessor of Acs.3-00 of land only in S.No. 177. The land measuring Ac.0-38 guntas situated on North - Eastern portion of the suit survey number is owned and possessed by the 1st defendant having got it as ancestral family property of the family of the 1st defendant. The father of the 1st defendant dug a well in it about fifty years back and cultivated this portion of land as paghat land and raised turmeric and chilli crop with the help of Mota. The other three acres of land is converted as wet by the plaintiff except the area covered by mango trees and he had separate well installed with electric motor. The plaintiff was raising paddy crop in his land with the water drawn from Urakunta. The portion of the land of the 1st defendant was separated by a well laid out and marked bund from the rest of the survey number. It is submitted that the father of the plaintiff was reigning monarch of Bhoomireddipalli village for over sixty years. He was Police Patel and Mali Patel and all in all. Some times agents were appointed to act as Village Officers but they were nominal figure heads without any power. The real power was vested in the family of the plaintiff for over sixty years and the father of the plaintiff ruled the village whatever may be the law of the State and the Country. The entire record of rights pertaining to village are full of mistakes and incorrect entries. The father of the plaintiff prepared pahanies and record of rights. He prepared wrong pahanies and record of rights. Many lands belonging to villagers are recorded with their family members names. The fresh record of rights with reference to the actual spot position were not prepared and the entries of absolute record of rights were being continued and relied upon for preparation of new pahanies and pass books. The defendants never tried to occupy the plaintiff''s Acs.3-00 of land as alleged in the plaint. The possession of the 1st defendant is adverse to the plaintiff. The plaintiff had no title in the 38 guntas of land. The mere entries in the record of rights did not confer any rights upon the plaintiff. The 2nd defendant is unnecessarily impleaded only to harass and to terrorise them. The suit land abuts National highway and it values Rs. 1,000/- per gunta and therefore the suit is undervalued and the Court fee paid is insufficient. The subject matter of the suit is beyond the pecuniary jurisdiction of the Court.
6. Subsequent thereto, an additional written statement was filed pleading that the disputed land is the ancestral property of the 1st defendant and it had been in his and his forefather''s possession. The said disputed land abuts Karimnagar - Luxettipet PWD and it is on Southern side of Dharmaram village. Out of S.No. 177, the disputed land is being cultivated as dry land and it is being irrigated with the well located in South -Eastern portion of the disputed land. The allegation that after obtaining the injunction order the defendants dispossessed the plaintiff from Ac.0-38 guntas of land located in North-Eastern portion, shown in red colour, is wrong. The plaintiff was not in possession of this land at any time during the last more than sixty years. The plaintiff had no title to the disputed dry land of Ac. 0-38 guntas abutting the P.W.D road and he is not entitled to decree for possession of the said dry land.
7. On the strength of the pleadings of the parties, Issues and additional issues were settled and the Court of first instance after recording the evidence of P.W.1 and P.W.2 and D.W.1 to D.W.7 and marking Exs.A-1 to A-36 and Exs.B-1 to B-37 ultimately had dismissed the suit for recovery of possession of Ac.0-38 guntas in S.No. 177 of Dharmaram h/o. Bhoomireddipalli village and aggrieved by the same, the plaintiff in the suit had preferred A.S.No. 29/92 on the file of I Additional District Judge, Karimnagar and the same was allowed, with costs, and aggrieved by the same, the present Second Appeal is preferred.
8. While admitting the Second Appeal, the following substantial questions of law were framed by this Court:
(1) Whether the learned I Additional District Judge is justified in not holding that the defendants/ appellants have perfected their title to the suit land by adverse possession on the basis of evidence produced on their behalf?
(2) Whether the plaintiff has established possession over the suit property of an extent of 38 guntas to warrant passing of decree for possession?
9. Sri Ramesh Sagar, the learned counsel representing the appellants had taken me through the Judgment of the appellate Court and had commented that certain material documents viz., Exs.B-15, B-16 and B-17 had not been considered and apart from this aspect, the total oral evidence was left untouched by the appellate Court and the non-consideration of the material piece of evidence by itself is a substantial question of law. The learned counsel also had pointed out that a cryptic point for consideration was framed by the appellate Court viz., whether the Judgment and decree of the lower Court is so perverse or erroneous as to warrant any interference as sought? and had proceeded to decide the matter. The learned counsel had also pointed out that the specific plea of adverse possession had been taken and the non-consideration of oral evidence and also certain documentary evidence which throws light on the plea taken definitely will vitiate the Judgment. While making elaborate submissions about the scope and ambit of Section 100 of the Code of Civil Procedure, the learned counsel had cited certain decisions. The learned counsel also pointed out the duty of the first appellate Court as a final Court of fact and had submitted that in any event of the matter, the Judgment and decree of the appellate Court would not stand for the legal scrutiny.
10. Per contra Sri Narayana Rao, the learned Counsel representing the respondent/plaintiff had submitted that the plea of adverse possession is a very vague plea and in fact specific plea was not taken. The learned counsel also submitted that as far as ownership is concerned, even in relation to the disputed Ac.0-38 guntas, there is no dispute at all and the trial Court also had recorded a finding to this effect. The learned Counsel also pointed out that the Court of first instance had proceeded on the assumption that even if the title is established, the burden of proof is on the plaintiff only to establish even possession within the statutory period. The learned counsel also pointed out that that the plea of adverse possession and claiming title otherwise, being inconsistent pleas, unless one is given up, the other question, and either consideration or non-consideration thereof, will not arise at all. Strong reliance was placed on several decisions in this regard. The learned counsel also had drawn my attention to the respective pleadings of the parties and also the findings recorded in this regard by both the Court of first instance and also by the appellate Court.
11. Heard both the counsel.
12. Though certain other substantial questions of law had been framed by this Court while admitting the Second Appeal as referred to supra, in the light of the facts and circumstances, especially in the light of the findings recorded by the appellate Court, I am of the opinion that those questions need not be adverted to and the main question which may have to be decided is as hereunder:
Whether the total non-consideration of the Oral evidence and certain documents by the appellate Court vitiate the Judgment and decree of the appellate Court?
13. As already pointed out, a cryptic point for consideration was framed by the appellate Court. I had given my anxious consideration and had gone through the findings recorded by the appellate Court commencing from paragraphs 6 to 11 of the Judgment of the appellate Court. Except the repeated and vague discussion, there is no consideration of the oral evidence at all. It may be that as the counsel for appellant had advanced the contention, the respondent may be having an excellant case on merits. But that does not mean that the appellate Court, as a final Court of fact, can ignore the oral evidence in toto and also the documentary evidence. It is pointed out that a plea relating to the possession and adverse possession had been taken. Whether it is clear or categorical or vague, the consideration of evidence available on record by the appellate Court, the first appellate Court, in my opinion, is definitely essential. In Mani v. Batcha Sahib, 2001 (1) CCC 162 (Mad.) while dealing with the finding of fact arrived at by the lower appellate court while reversing the Judgment of the trial Court and the scope of interference it was held:
"In short, it can be safely held that it is incumbent upon the final court of fact, i.e., the first appellate Court, particularly when the judgment and decree of the trial Court is sought to be reversed, shall meet the reasoning of the trial Court while decreeing the suit and shall also indicate its own reasons for arriving at a contrary conclusion. It is the duty of the lower appellate Court to discuss the entire evidence afresh, take notice of the grounds taken and the reasons advanced by the trial Court to reach its decision."
The other decisions Major Singh v. Rattan Singh, 1997 AIR SCW 1659 Panchugopal Barua v. Umesh Chandra Goswami 1997 (2) SC 152 Bihar State Electricity Board v. Allied Refactories (P) Ltd. 1996 (2) SC 284 Santosh Hazari v. Purushottam Tiwari AIR 2001 SCW 723 also had been relied upon.
14. On the contrary, with equal emphasis, the learned counsel for respondent had placed reliance on
15. As far as the proposition of law relating to burden of proof where a question of title is proved or not, and where the plea of adverse possession is raised, there cannot be any controversy. When once the question of title is proved, the burden is on the party who asserts that he had perfected his title by adverse possession, to prove that the suit is otherwise barred by limitation. There cannot be any two opinions in this regard in view of the clear provisions of the Limitation Act, 1963. It is really unfortunate that the appellate Court while reversing the Judgment of the trial Court had not recorded the reasons in detail and had not adverted to the oral evidence at all. Whatever may be the other merits and demerits of the matter, I am of the considered opinion that the total elimination of consideration of the oral evidence by the appellate Court definitely will vitiate the Judgment. No doubt it was pointed out that certain documents also had not been considered. In the light of the same, I am left with no other option except to set aside the Judgment and decree of the appellate Court and remand the matter to the appellate Court to be disposed of in accordance with law after giving opportunity to both the parties in this regard.
16. Accordingly, the Judgment and decree made by the appellate Court in A.S.No. 29/92 are set aside and the matter is remanded to the appellate Court for the purpose specified supra. The Second Appeal is allowed to the extent indicated above. In view of the findings recorded by me above, I direct the parties to bear their own costs.
17. It is brought to my notice that this matter is a very old one and in view of the same, the appellate Judge is directed to dispose of the matter in accordance with law within a period of three months and both the parties are directed to appeal before the appellate Court on the reopening day after summer vacation 2003.
