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(2007) 07 AP CK 0061
In the Andhra Pradesh High Court
Case No : AS No''s. 4116 and 4119 of 2004

Darshanam Swamy @ Somaiah APPELLANT

Vs
Rithu Malhotra @ Rithu Kapur RESPONDENT

Date of Decision : 20-07-2007

Acts Referred:
Administration of Evacuee Property Act, 1950 — Section 18, 18(1), 18(2), 46, 7
Civil Procedure Code, 1908 (CPC) — Order 39 Rule 1, Order 39 Rule 2, 11, 151
Constitution of India, 1950 — Article 226, 32
Displaced Persons (Compensation and Rehabilitation) Act, 1954 — Section 24
Citation : (2007) 5 ALD 701 : (2008) 1 ALT 404
Hon'ble Judges : D.S.R. Varma, J;D. Appa Rao, J
Bench : Division Bench
Advocate : D.V. Bakshi, , A. Ananta Reddy,
Final Decision : Dismissed

Judgement
D. Appa Rao, J.
These two appeals, A.S. No. 4116 of 2004 and A.S. No. 4119 of 2004, arise out of a
common decree and judgment in O.S. 413 of 2002 and O.S. No. 24 of 2003 (old
O.S. 869 of 1998), respectively, on the file of learned II Additional District Judge,
Ranga Reddy District.
2. O.S. No. 143 of 2002 was filed by the appellants for declaration that they have
perfected their title by adverse possession over Ac.7-03 gts situated in Sy. No. 289
in Puppalaguda Village and for a permanent injunction restraining the respondent
from interfering with the said property. Equally, respondent-Rithu Malhotra filed
O.S. No. 24 of 2003 for a permanent injunction restraining the appellants from
interfering with the above said property.
3. The case of the appellants, in brief is, that they and their ancestors have been in
possession of the suit property right from 1936. Originally it belonged to one
Fakaryar Jung. Their father Gandaiah took the land on lease from Fakaryar Jung.
During partition, Fakaryar Jung migrated to Pakistan in 1947. Since then no one
has claimed ownership or possession. In the year 1988, the revenue authorities
issued notice dated 3-12-1988 under Encroachment Removal Act. They engaged an
advocate and approached the authority on 27-12-1988 and sought time for filing
counter. The advocate has informed that he wound inform the date of hearing.
Nothing was heard thereafter. While so, in the year 1992 the officials of the State
Government with the assistance of the police tried to dispossess them from the
schedule property then they filed WP No. 2692 of 1992 for issuance of mandamus
to protect their interest and possession and an interim direction was obtained not
to disturb their possession. On 2-11-1994, writ petition was disposed directing the
revenue authorities to consider their representations. In the above proceedings
from the counters they could know that the suit land was declared to be evacuee
property under the provisions of Administration of Evacuee Property Act, 1950 (for
short ''Act 1950'') and that the suit land was allotted to one Motilal, a migrant from
Pakistan, under the Displaced Persons Rehabilitation and Compensation Act 1957
(for short the ''Act 1957'') and that the G.P.A holder of Motilal sold the land to the
respondent-Ritu Malhotra. She alleged that Motilal inducted her into possession. On
that they approached the Government requesting for allotment of those lands to
them. The Mandal Revenue Officer on the report of the Mandal Revenue Surveyor,
after full-fledged enquiry, sent his report dated 29-5-1993 admitting their
possession for more than thirty years. When the revenue authorities tried to
dispossess them, they approached the High Court by way of W.P. No. 7288 of 1996
and the High Court directed the Government to maintain status quo. When there
was violation of the orders, they filed contempt case C.C. 477/2000. The District
Collector gave undertaking to remove the fencing. After dismissal of their writ
petition, SLP was filed before the Supreme Court and the same was listed for
admission. Neither Motilal nor the vendee Ritu Malhotra was ever in possession. In
view of the false claims made by the respondent, they were forced to file this suit.
The custodian has never exercised any right in the property. Therefore they filed
the suit for declaration of their title and perpetual injunction.
4. The defendant Ritu Malhotra filed written statement resisting the suit. She
stated that the Custodian of Evacuee Property declared the suit land as evacuee
land and allotted the same to one Motilal Chandumal in the year 1955 and issued
Sale Certificate to the said allottee in 1956. The Custodian directed the Collector to
deliver the possession to the said allottee as per the Sale Certificate. The revenue
authorities, accordingly delivered the possession to the allottee. The Settlement
Officer, Bombay informed Gandaiah, the father of the appellants on 21-7-1970 that
the land was already allotted to Motilal and the question of allotting the said land to
them will not arise. Against which a Revision No. 147/BY/54 was filed in the year
1970 u/s 24 of the Displaced Persons (C&E) Act, 1954 for allotment of evacuee
property bearing Sy. Nos. 289, 291, 292, 293 and 295 situated at Poppalaguda
requesting for cancellation of patta granted to Motilal. The same was dismissed on
29-1-1972 holding that the said lands were allotted to Motilal Chandumal.
Aggrieved they filed writ petition WP 7288 of 1996. While dismissing the writ, a
Division Bench of this Court observed "The land in question was allotted to Motilal
Chandumal and the said allotment became final and that the defendant herein as
transferee of that land is entitled to hold, possess and enjoy the said land in
question in accordance with law." Therefore, they cannot once again claim title to
the property. The suit is not maintainable. The civil Court has no jurisdiction to
entertain the suit by virtue of Section 46 of Act, 1950 as well as under the
provisions of the Displaced Persons (C&E) Act, 1954. In fact, the father of the
plaintiffs filed suit OS 75/1970 for declaration of title and grant of injunction and the
same was not dismissed for non-payment of Court-fee. The appellants cannot once
again approach the Court and file the suit. In fact her name was mutated in the
revenue record. She filed O.S. No. 869 of 1998, on the file of Junior Civil Judge,
West and South, Ranga Reddy District and obtained injunction order against the
appellants. Since the property was declared as evacuee property, the plaintiffs
cannot make any claim over the suit property on the ground that they were
protected tenants. When plaintiffs have trespassed the property, a criminal case
was filed, and it was ended in conviction. The appeal preferred by them was also
dismissed. Criminal revision case in Crl. RC No. 702 of 1999 filed against the said
judgment, was also dismissed by the High Court on 22-1-2000, confirming the
order of conviction. They were never in possession. They were not entitled to any
declaration or injunction. Therefore, she prayed for dismissal of the suit.
5. The respondent herein filed O.S. 869 of 1998 (O.S.24 of 2003) for a permanent
injunction restraining the appellants from interfering with their property reiterating
the pleadings made in the written statement filed in the above suit. She asserted
that she purchased the suit land from Motilal Chandumal under registered sale
deed dated 21-7-1990 and her name was mutated in the revenue records. She has
been in possession although. When the appellants tried to interfere with her
possession, she filed the suit for perpetual injunction restraining the appellants
from interfering with the property.
6. The appellants filed written statement reiterating the pleadings made in the
plaint in OS 143 of 2002. They alleged that they have been in continuous
possession right from 1936 under the original owner Fakaryar Jung, and after his
migration to Pakistan, nobody has claimed any title over the land. The plaintiff is a
stranger and she had no manner of right to seek interim injunction since they have
been in active possession the respondent was not entitled (to any injunction.
7. The trial Court upon the pleadings framed the following appropriate issues in
both the suits:
OS No. 143 of 2002
1. Whether this Court has got jurisdiction to entertain the suit in view of Section 46
of the Administration of Evacuee Property Act 1950 and in view of the Displaced
Persons (C&E) Act, 1954?
2. Whether the suit is barred by the principle of res-judicata in view of the
judgment in OS No. 75/1970 on the file of Dist. Munsif Court, West, Hyd.?
3. Whether the suit is properly valued and the Court fee paid is correct?
4. Whether the suit is in time?
5. Whether the plaintiffs are entitled to the declaration of their title over the suit
schedule property as prayed for?
6. Whether the plaintiffs are entitled to the perpetual injunction against the
defendant with respect to the suit schedule property as prayed for? Whether the
defendants are entitled to compensatory costs?
7. To what relief?
OS No. 24 of 2003 (869/1998)
1. Whether the plaintiff was in possession of the suit schedule property by the date
of filing of the suit?
2. Whether the plaintiff is entitled to the perpetual injunction against the
defendants with respect to the suit schedule property as prayed for?
3. Whether the defendants are entitled to exemplary costs?
4. To what relief?
8. Both the suits were clubbed for common trial. The appellants, plaintiffs in OS No.
143 of 2002, have been examined as PWs.1 to 9. The 1st plaintiff as PW1. He filed
Exs.A1 to A64. Refuting their evidence, the defendant has examined Inder Mohan
Kapoor as DW1 and filed Exs.B.1 and B.25. The report of the Commissioner and
photos were marked as Exs.Cl to C5.
9. The trial Court after considering the documentary and oral evidence placed on
record, opined that the suit land, which was declared as evacuee property, stood
vested in the custodian. It was allotted in favour of one Motilal, the displaced
person, who in turn sold it to respondent-Rithu Malhotra. The property having been
notified under the Act 1950 and allotted in favour of displaced person, the revenue
authorities can no longer deal with the said property. The appellants cannot pray
for allotment of the said land in their favour on the ground of tenancy. They were
never in possession adverse to the interest of the real owner for more than 12
years. The name of the respondent was mutated in the revenue records evidenced
under the pahanis etc. Therefore, the suit filed by the appellants for declaration
and injunction was dismissed. Consequently, the suit filed by the respondent in
O.S. No. 24 of 2003 was decreed and the appellants were restrained from
interfering with the possession and enjoyment of the suit land.
10. Aggrieved by the said decision, the appellants preferred these appeals
contending that the trial Court did not appreciate the facts or law in correct
perspective. The trial Court ought to have considered that the respondent was
never in possession of the property. Admittedly, they have been in possession all
through. The revenue records would undoubtedly show their continuous
possession. At any rate, even if the respondent was continuing in possession, by
orders of the Court, it would in no way confer title in her. The record shows that
they have been in continuous possession. At no point of time possession was taken
by either the original allottee or by the subsequent purchaser, the respondent
herein. Therefore, they prayed that the appeals be allowed and set aside the
judgments and decrees under the appeals.
11. The points that arise for consideration are:
1. Whether the appellants had acquired title by way of adverse possession?
2. Whether the respondent is having title to the said property?
3. Who among the parties is entitled to permanent injunction?
12. It is not in dispute that the suit schedule property Ac.7-10 gts in Sy. No. 289 of
Puppalaguda Village in Ranga Reddy District was originally owned and possessed
by one Fakaryar Jung. The ancestors of the appellants had taken the said land on
lease from Fakaryar Jung sometime in the year 1936. Later when he had migrated
to Pakistan in the year 1947, the Government of India had notified entire property
of Fakaryar Jung, including the suit land, as evacuee property, under the provisions
of Act 1950. The appellants alleged that they continued to remain as tenants in
respect of the land, even after the land was notified as evacuee property u/s 7 of
the Act 1950. The leasehold rights in the property remained intact, and on coming
to know of it, the appellants submitted representations before the concerned
authorities to sell the lands to them on collecting nominal prices they being the
tenants by virtue of circular of the Government of India issued in 1964. Evidently
the suit property, which was under the custody of custodian by virtue of Section 8
of the Act 1950 it having vested in him, allotted the suit property in favour of one
Motilal, a displaced person under an allotment order dated 1-8-1955. The G.P.A. of
the allottee transferred the suit land by way of registered sale deed Ex.B.1 dated
21-7-1970 in favour of Rithu Malhotra, the respondent herein.
13. When their representations were not considered, they preferred W.P. Nos.
2692 and 2807 of 1992. The learned Single Judge by order dated 2-11-1994,
directed the Joint Collector, Ranga Reddy District to dispose of the representations
in terms of the recommendations. Thereupon, the appellants submitted their
representation stating that the land be allotted to them as they were tenants. On
12-1-1996, the Joint Collector opined that the property was allotted under the Act
1957 in favour of Motilal, a displaced person who in turn sold it to the respondent
under registered sale deed. When the property was no longer available with the
Government, the question of extending the benefit of the circular to the appellants
will not arise. Thereupon, they preferred WP No. 7288 of 1996. A Division Bench of
this Court opined that by virtue of Sub-section (2) of Section 18 the existence of
any possessory or tenancy rights created in any person under any provision or
State Act, shall not have any effect on the rights and evacuees of the custodian in
respect of the lands that are vested u/s 8. The allotment that was made in favour
of Motilal in the year 1955 by a competent authority cannot be questioned. It was
further observed that the circular of the year 1964 of the Central Government in
respect of lands which were notified as evacuee properties and continued to remain
under the occupation of the tenants would in no way apply to the appellants. The
property was notified in the year 1951, and was allotted to Motilal in the year
1955. Since the land itself was not available with the Government it cannot deal
with by it. The request of the appellants cannot be complied with even if otherwise
they are eligible for allotment. Accordingly, the writ petition was dismissed.
14. The plaintiffs now contended that they were lessees under the original owners
and subsequently in 1952 the custodian granted lease hold rights to them and as
such they were continuing to enjoy the property under the authority of those lease
deeds. Except taking this contention there is no proof whatsoever that either the
original owner or subsequently the custodian leased out the property in favour of
the appellants. Obviously this plea was taken to impress the Court that they have
been continuing as tenants and they never parted possession the property.
15. The appellants in order to prove their possession filed Exs.A2 and A.22 to A.44
pahanis from 1960-1961 to 1991-1992 and Chowfasla Pahani Ex.A.1 (A.44) for the
year 1988-89. This is to show that their names were shown as tenants in the
column of possession. Apart from it they filed land revenue receipts Exs.A.3 to A.
19 for the years 1976 upto 1983 and A-46, A-47 and A-58 electricity payment
receipts and electricity Pass Book. Equally, the respondent filed the pahanis from
1991-2002 evidenced under Ex.B.11 to 19, show that she has been in possession
and her name was mentioned in ''possession column''.
16. Admittedly, the appellants filed revision petition before the Chief Settlement
Commissioner, Bombay against the allotment of land to Motilal. The said authority
by order Ex.B.3 made it clear that the allotment was made and sale certificate was
issued to Motilal, and that possession was also delivered to him. Subsequently, the
suit land was sold to the respondent. This order was communicated evidenced
under Ex.B.4. They did not pursue the matter, the said order was not challenged
and it had attained finality.
17. The Mandal Surveyor of Rajendranagar Mandal served a notice on 3-12-1988
followed by a notice dated 21-10-1995 of the Mandal Revenue Officer, on the
appellants, under the Land Encroachment, Act as to why action should not be taken
against them under the said provisions. Thereupon the appellants filed WP 2692 of
1992 and 2807 of 1992 seeking writ of mandamus. On that the High Court in WPMP
No. 3335 of 1992 passed orders of status quo to maintain possession as was
existing by them. The Revenue Divisional Officer by his letter dated 22-10-1992
informed that the respondent was inducted in possession after vacating the
appellants. Thereafter the High Court directed the Joint Collector to dispose of the
representations filed by the appellants on merits. The Joint Collector dismissed
their claim by order dated 12-1-1996, observing that the land was no longer
available with the Government. Incidentally he stated that the Government has no
role to play as the lands were allotted by the custodian under the Act 1957. Against
the proceedings of the Joint Collector, the appellants filed W.P. No. 7288 of 1996
and the same was dismissed by a Division Bench of this Court by order dated 20-9-
2001 holding that Rithu Kapoor being the transferee of the suit land from Motilal is
entitled to possession and enjoy the suit land in accordance with law. It held that
the appellants cannot question the title.
18. It may be mentioned here that a criminal case was instituted by the Police
Narsingi against the defendant in CC. No. 211 of 1996 alleging that on 10-4-1996
the appellants had trespassed the suit property and damaged the fencing etc. The
appellants were convicted evidenced under judgments Ex.B.20 confirmed in the
appeal Ex.B-21 and revision B.22. Not that a judgment in criminal case binds the
civil Court, at any rate, it would show that earlier when the respondents
complained of trespass, the appellants were convicted.
19. During pendency of the above cases, the respondents herein filed OS 869 of
1998 (OS 24 of 2003) on 24-12-1998 for a permanent injunction. She obtained
interim injunction against the appellants and the same was confirmed in A.S. 15138
and 15141 of 2004. 3 years 9 months thereafter on 22-10-2002, the appellants
filed O.S. No. 143 of 2002 alleging that they acquired title by way of adverse
possession. It may be also mentioned herein, that the appellants earlier filed OS
No. 75 of 1970, for a permanent injunction. However, the said suit was rejected for
non-payment of Court fee evidenced under Ex.A.49 dated 16-7-1973.
20. Admittedly, the appellants'' contention all through was, that they were the
tenants under the original owner Fakaryar Jung and thereafter under the
custodian, the property being evacuee property, and claimed that they were
tenants entitled for allotment of the said land under G.O. Ms. No. 1883 dated 9-12-
1964 on payment of amount. It was never their case that they were in possession
on their own accord. They were all through cultivating, on the premise, that they
were tenants. It is not disputed by the appellants even, that the property is
evacuee property, and declared as such under the provisions of Act 1950 (Act 31 of
1950) and vested in the custodian. Subsequently it was vested in the Central
Government under the provisions of Act 1954. The suit land was allotted to one
Motilal, a displaced person vide proceedings under Ex.A2 and sale certificate Ex.B.2
dated 8-3-1956.. On 21-7-1970, Motilal sold the said land under Ex.B.1 sale deed
to the respondent wherein recital of possession was made a mention. Importantly,
the revision petition filed by the appellants against the allotment and sale of land to
Motilal, was rejected by the Chief Settlement Commissioner vide his orders under
Ex.B.3 dated 29-1-1972. There was a categorical mention that possession of land
was delivered to Motilal. For about 20 years the appellants did not question the
proceedings.
21. The appellants filed WP No. 2692 of 1992, 20 years thereafter, claiming as
tenant of evacuee Fakaryar Jung and thereafter lease was obtained from custodian
and claimed to be tenant entitled for allotment. A direction was given to dispose of
the representation filed by the appellants. When the authorities rejected the claim
of the appellants, they filed WP No. 7288 of 1996 claiming the very same relief that
they were tenants and that they were entitled for allotment. When WP No. 7288 of
1996 was dismissed rejecting the claim, they filed OS No. 143 of 2002 on 22-10-
2002, with altogether on a different and contradictory claim alleging adverse
possession of the land, and for a consequential injunction.
22. The respondent alleged that possession was delivered to Motilal on 8 3-1956
who in turn sold to her and delivered possession under registered sale deed Ex.B.1
dated 8-3-1956.
23. Since tenant claiming title by way of adverse possession is against the very
concept of tenancy, the appellants now contend that neither the custodian of the
evacuee property, nor the Chief Settlement Commissioner had domain over the
property. There was no proof whatsoever that Motilal, the purchaser had taken
possession; it was not reflected in any of the village records. Right from 1970 the
respondent had knowledge of the suit OS 75/70 and aware of their claim of
ownership. Because they were agitating against the Government and seeking patta
it would prove that they were denying the title of the respondent.
24. Undoubtedly any person can claim title by way of adverse possession if he had
proved that he was in possession and his possession was adequate in continuity in
publicity in extent nec vi nee clam and nee precario. The Hon''ble Supreme Court
in T. Anjanappa and Others Vs. Somalingappa and Another, considered as to when
a person would acquire title by way of adverse possession. Their Lordships held:
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. 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 to 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.
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. An occupation of reality is inconsistent with the right of the true owner. Where
a person possess property in a manner in which he is not entitled to possess it, and
without anything to show that he possesses it otherwise than an owner (that is,
with the intention of excluding all persons from it, including the rightful owner), he
is in adverse possession of it. It is the basic principle of law of adverse possession
that (a) it is the temporary and abnormal separation of the property from the title
of it when a man holds property innocently against all the world but wrongfully
against the true owner; (b) it is possession inconsistent with the title of the true
owner.
In order to constitute adverse possession the possession proved must be adequate
in continuity, in publicity and in extent so as to show that it is adverse to the true
owner. The classical requirements of acquisition of title by adverse possession are
that such possession in denial of the true owner''s title must be peaceful, open and
continuous. The possession must be open and hostile enough to be capable of being
known by the parties interested in the property, though it is not necessary that
there should be evidence of the adverse possessor actually informing the real
owner of the former''s hostile action.
25. The Hon''ble Supreme Court in Balkrishan v. Satyaprakash 2001 (2) ALD 37
(SC) : (2001) 2 SCC 408 considered the question whether a person could claim title
by adverse possession by filing a suit. Referring to the above decision our own High
Court in the decision in K. Rajeshwar Reddy and Others Vs. N. Laxmikantam and
Others, , observed "Persons who perfected their title by adverse possession can
maintain a suit for declaration of a title as well as for permanent injunction." It
further observed:
8. Normally the plea of adverse possession would only enable the person taking
the same to resist any attempt by any other person to evict him. It is almost in the
form of defence. It was for this reason that the plea of adverse possession is
treated as shield and not a sword. The doubt is as to whether an individual who
continued in possession of an immovable property and whose possession was
adverse to the lawful owner can seek a declaration of his title. However, the issue
is no longer res integra in view of the judgment of the Supreme Court reported in
Balakishan v. Satyaprakash (supra). In that case the trial Court decree the suit for
declaration of title on the basis of adverse possession. The appeal filed against the
same was dismissed. However, in the second appeal, the High Court reversed the
judgments of the Courts below by observing as under.
"In spite of the fact that the plaintiff continued in possession, in spite of the order
against him in proceedings u/s 250 MP LR Code, his possession cannot be said to be
sufficient in eye of Law to confer a title upon him by adverse possession, as
claimed."
9. The judgment of the High Court was reversed by the Supreme Court with the
following observations:
From the above decision it follows that the judgment and decree of the High Court
under challenge cannot be sustained. They are accordingly set aside and the
judgment and decree of the first appellate Court confirming the judgment and
decree of the trial Court is restored. The appeal is accordingly allowed but in the
circumstances of the case without costs.
10. Therefore it emerges that adverse possession for the required length of time
would not only enable the person pleading such possession to resist the plea of
recovery of possession but would also enable him to get his title declared on the
strength of the same.
26. The appellants in order to prove their case that they have been in possession
right from 1936 originally under Fakaryar Jung and later continuing in possession
relied Pahanis from the year 1960-61 to 1991-92, land revenue receipts A.3 to
A.19 from year 1976 to 1995, Electricity Pass Book. A.45, Electricity Payment
Receipts Exs.A.46, 47 and 58. They have also relied on Panchanama Ex.A.59 dated
14-12-1998 wherein some elders mentioned the physical features and they were
aware that the appellants were continuing in possession right from 1947-1948 and
it was an evacuee property.
27. Refuting their evidence, the respondents equally filed the Sale Certificate Ex.B2
pursuant to which possession was delivered to them on 8-3-1956. Their names
were mentioned in pahanis Exs.B11 to B19 for the year 1991-1992 to 2001-2002
besides land revenue receipts B7 to B10 and Pattadar Pass Book Ex.B5.
28. It is not the case of the plaintiffs that they at any point of time claimed title to
the property. It is their case that they were tenants under the original owner. After
the property was declared as evacuee property, they continued tenancy under the
custodian, the property having vested in him by virtue of the acts mentioned
above. Assuming without admitting that they have been in possession right from
1936 as pleaded by them, it was only as tenants. They never claimed possession
on their own or as the owners of the property. They never denied the title of the
real owner. In other words, their possession was never hostile to the real owner, in
order to constitute adverse possession, the animus of the person doing those acts
is a must crucial factor. Where a person possesses property in a manner in which
he is not entitled to possess it, and without anything to show that he possesses it
otherwise than an owner, he is in adverse possession of it. They never denied the
title of the true owner. The possession must be open and hostile enough to be
capable of being known to the parties interested in the property. When they
asserted that they were tenants, even approached the Courts on the very same
ground, and went to an extent of requesting the Government to allot it on after
fixing same amount towards consideration, they cannot turn round and say that
they acquired the title by way of adverse possession. The plea taken by them is
against their own contention. It is a desperate plea in order to acquire the property
in one way or the other. The important contention of the plaintiffs is that
irrespective of the above they have continued to be in possession and their
possession was known to the parties and therefore they acquired title by way of
adverse possession.
29. The appellants did not dispute the notification u/s 7 and the provisions of Act
1950. By virtue of Section 8 of the said Act 1950 the property stands vested in the
custodian. When once the property is vested in the custodian, the original owner or
anybody claiming through him ceases to have any right against such property. The
learned Counsel for the appellants contended that their possessive rights would not
be affected by such notification. A reference was made to Section 18 of the Act in
support of their contention. Sub-sections (1) and (2) of Section 18 reads thus:
(1) Section retrospective-Where a tenant had migrated to Pakistan sometime in
the beginning of 1949 and the default in payment of rent was committed by him
within the period of one year immediately preceding the date on which he became
an evacuee, u/s 18 which had been given retrospective effect, no decree for-
(a) The evacuee committed after he became an evacuee or within a period of one
year immediately preceding the date of his becoming an evacuee; or
(b) The Custodian.
(2) Where any person acquires or has acquired any rights under a Provincial Act or
a State Act in respect of any property, by reason of being in possession of that
property, whether in pursuance of a grant, lease or allotment made by the
Custodian or otherwise, the acquisition of such rights shall not in any way affect or
be deemed to have affected the rights and powers conferred on the Custodian
under this Act in respect of that property.
30. A reading of the above provisions undoubtedly show that any person who had
acquired any rights by reason of being in possession of the property including by
way of tenancy rights created in any person under any provincial or State Act, shall
not have any effect on the rights and powers of the Custodian, in respect of the
lands that are vested u/s 8. Therefore, their claim that they were continued to be
tenants cannot stand.
31. Alternatively it was contended that since they were ceased to be tenants, their
possession could be independent of the claim of the custodian or the original owner
or subsequent purchasers and therefore they possessed and enjoyed the land in
their own and thus acquired the title. Had the appellants ignored those
proceedings, and continue to be in possession the claim could have been otherwise.
The circular was issued in the year 1964 by the Central Government in respect of
such lands, which were notified as evacuee and continued to remain under the
occupation of the tenants. Obviously, coming to know of it the appellants preferred
revision u/s 24 of the Displaced Persons (C&R) Act, 1954 before the Chief
Settlement Commissioner to allot the said lands to them on receiving
consideration, they being tenants for the last several years. The Chief Settlement
Commissioner informed the appellants that the land was sold to a displaced person
and the same has been finalized and Sanad was also issued in favour of the allottee
who had taken possession of the land as reported by the District Collector.
32. Pursuant to a notification issued in 1963 by the Central Government for the
lands that were allotted to the allottees in 1956 they preferred the revision in
1972. The allottees therein had contended that they have got possession of the
land after making payment of the entire price and since the land was allotted in
their favour there should not be any interference in the transaction after the lapse
of so many years. Since the revision was preferred subsequent to the instructions
and the properties have been allotted in the year 1956, the Chief Settlement
Commissioner opined that the instructions referred to above which were issued
much after the transaction could not have retrospective effect and therefore the
revision was dismissed. The appellants did not question these proceedings.
33. The important contention that was taken by the appellants was that the
property though was purchased by the respondent from Motilal she was never in
possession of the property and in fact they continued in possession of the property.
The fact remains that the plaintiffs never claimed their possession independently on
their own. Their case was that they were tenants. It was not a case where there
was relinquishment of tenancy or that they became owners. In fact their contention
was that they were in possession only as a tenant originally under Fakaryar Jung
and later under Custodian. There is no proof of these facts. It may be mentioned
that Hyderabad Tenancy and Agricultural Lands Act, 1950 came into force after
passing of Evacuee Property Act 1950. Therefore, they cannot claim that they are
protected tenants.
34. The plaintiff in order to prove his case examined himself as PW.1 besides the
neighbouring landholders PWs.2 to 9, who in one voice stated that PW.1 has been
alone in possession of the suit property and at no time the purchaser had taken
possession. Contrarily, the respondent contended that Motilal was given possession
by the District Collector in the year 1956 and immediately Sanad Ex.B.2 was issued
in favour of Motilal. In fact when the very appellants approached the Chief
Settlement Commissioner he rejected the claim. They did not assert that they had
title and acquired it by way of adverse possession. Their claim was that they were
poor Harijans and the land be allotted to them.
35. The plaintiffs relied Ex.A.1 No. 4 Chowfasla phani relating to the suit land.
Under the column No. 2 pattedar the names of Dharsanam Swamy, Eswaraiah and
all were mentioned. In Exs.A.11 to A. 17 the name of the custodian was shown as
pattedar. In Exs.A.18 and A.19 the name of Rithu Malhotra was shown as pattedar
for the year 1983. In No. 3 pahani-Ex.A.21 the name of the custodian was shown
as pattedar. Under Column No. 11 the appellants'' father''s name Darsanam
Gandaiah and Narsimha shown as possessors. Exs.A.20 to A.47 the No. 3 pahani
patrikas, the name of custodian and that of Rithu Malhotra were shown as
pattedar. Column 11 and Column No. 15 were kept blank. They never protested
when the names of owners are shown in pattadar column.
36. Even in 1970 Darsanam Ramaiah, the grandfather of the plaintiffs and 4 others
filed OS. 75/70 on 26-5-1970 for declaration of title and the same was rejected for
nonpayment of Court fee. It may be stated herein that the name of respondent
was mutated in revenue records vide Ex.B1 and adangals B11 to B19. Pattedar
Pass Book was issued in her favour under Ex.B5 and title deed was issued in Ex.B6.
She has been paying land revenue evidenced under Ex.B4, B7 to B10. As earlier
pointed out possession was delivered by the Government. When the plaintiffs
trespassed into the land, she gave police report. After investigation they filed
charge-sheet in CC.211/1996. The appellants herein were convicted in C.C.211 of
1996 confirmed in appeal in Crl. Appeal No. 60 of 1998 and further in revision in
Crl. RC No. 702 of 1999 vide Exs.B.20 to 22.
37. At this juncture, it is useful to note that a Commissioner was appointed to note
the physical features of the property in view of the fact that the plaintiffs claimed
that they have been raising crops in the suit land. The Commissioner after
inspecting the suit land found no crop in the suit land. The land was barren. He
found well and it is outside the boundary land to the suit land. There was no
electricity connection to the well. Since the land is barren necessarily the
possession follows title. It may be stated herein when the respondent filed suit OS
869 of 1998, on the file of District Munsiff, Hyderabad West and South for injunction
in I.A. No. 2319 of 1998, the trial Court granted interim injunction on 23-12-1998
and the same was in force. When there was injunction the plaintiffs cannot say that
they have been still in possession. It may be stated that when the appellants filed
application under Order 39 Rules 1 and 2 of Section 151 C.P.C to grant ad interim
injunction, it was dismissed by vacating the ex parte interim which was passed on
22-10-2002. Therefore, the interim injunction that was granted on 24-12-1998 was
continued throughout the pendency of the suit till disposal of the suit in 2004. Even
in the appeal the said order was not suspended. By 1970 the respondent was in
possession pursuant to the sale Ex.B.1 dated 21-7-1970. The orders of the
Settlement Commissioner in Ex.B.3, shows that possession of the land was
delivered to Motilal. This order was communicated to the appellants on 5-2-1972.
After a period of 20 years the appellants approached the High Court by way of
W.P. No. 2692 of 1992, claiming that they obtained lease from the custodian and
therefore the land be allotted to them on payment of costs. When the said writ
petition was dismissed, they filed WP No. 7288 of 1996, which was also dismissed.
When as long back as in 1956, the possession was delivered to the original allottee,
it cannot be said that they have been in possession.
38. The learned Counsel for the respondent contended that the orders in the writ
petition constitute res judicata. The High Court held that the land in question was
allotted to Motilal and the said allotment has become final. The defendant as
transferee of that land was entitled to hold possession and enjoyment of the suit
land in question in accordance with law. The said finding constitutes res judicata.
The learned Counsel in support of the plea relied a catena of decisions Daryao and
Others Vs. The State of U.P. and Others, , Gulabchand Chhotalal Parikh Vs. State of
Bombay (Now Gujarat), , Union of India (UOI) Vs. Nanak Singh,, Devilal Modi,
Proprietor, M/s. Daluram Pannalal Modi Vs. Sales Tax Officer, Ratlam and Others, ,
Govt. of Andhra Pradesh Vs. M. Narasimha Murthy, , Lonankutty Vs. Thomman and
Another, , Forward Construction Co. and Others Vs. Prabhat Mandal (Regd.),
Andheri and Others, and The Direct Recruit Class-II Engineering Officers''
Association and Ors. v. State of Maharashtra and Ors. Their Lordships have
consistently opined:
The provisions of Section 11 CPC are not exhaustive with respect to an earlier
decision operating as res judicata between the same parties on the same matter in
controversy in a subsequent regular suit and on the general of res judicata, any
previous decision on a matter in controversy, decided after full contest or after
affording fair opportunity to the parties to prove their case by a Court competent
to decide, it will operate as res judicata in a subsequent regular suit. It is not
necessary that the Court deciding the matter formerly be competent to decide the
subsequent suit or that the former preceding and the subsequent suit have the
same subject-matter. The nature of the former proceeding is immaterial. There is
no good reason to preclude such decisions on matters in controversy in writ
proceedings under Article 226 or 32 of the Constitution from operating as res
judicata in subsequent regular suits on the same matters in controversy between
the same parties and thus to give limited effect to the principle of the finality of
decisions after full contest. Consequently on the general principle of res judicata
the decision of the High Court on a writ petition under Article 226 on the merits on
a matter after contest will operate as res judicata in a subsequent regular suit
between the same parties with respect to the same matter.
39. It may be stated herein itself that since the plaintiffs have claimed title by way
of adverse possession when earlier writs did not consider this aspect of the matter,
we do not see any bar for them to file suit. The judgments in the writ petitions in
this case would not bar them to file suit and it could not constitute res judicata.
40. The learned Counsel for the appellants contended when they continued to be in
possession in spite of order or ejectment, mere passing of order of ejectment
which was not excluded and not acted upon, neither causes their dispossession nor
discontinuation of their possession. Possession of appellants ripens into adverse
possession after statutory period. Though the respondent succeeded in the writ
petitions, and the plea of the appellants for allotment of the suit land was rejected,
and in spite of the same, the appellants have been in possession and enjoyment of
the same. Their possession was never snapped since 1937 they have been in
possession without any ejectment. Therefore they are entitled to retain possession,
having acquired title by way of adverse possession.
41. In support of his contention the learned Counsel relied a decision Balkrishan v.
Satyaprakash and Ors. (supra). It was a case where a declaration of title was
sought on the ground that the appellant had purchased the suit land from true
owner and perfected his title by way of adverse possession. The facts disclose that
the suit land was under attachment of the orders of the Tahsildar and purchased by
respondent in an auction that followed attachment. The respondent also filed suit
u/s 250 of M.P. Land Revenue Code for restoration of possession. In spite of order
of ejectment by Tahsildar, the appellant continued to remain in possession. In
those circumstances, the Supreme Court held "mere passing of order of ejectment
which was not executed and not acted upon, neither causes their dispossession not
discontinuation of his possession, possession of appellant ripens into adverse
possession after statutory period.''''
42. However, coming to the facts of the present case, it was never in the mind of
the appellants, that they have been in possession adverse to that of the owner.
Their claim throughout was that they were tenants. There was no animus at any
time that they have been in possession in their own right. We need not reiterate
that the possession must be open and hostile enough to be capable of being known
by parties interested in the property, though it is not necessary that there should
be evidence of the adverse possession actually informing the real owner of the
former''s hostile action. What all they claimed was that they were tenants and they
be allotted the land as they are poor Harijans. This was after knowing that the
property was vested in the custodian. From then onwards they have been agitating
in various Courts that they be allotted the land. At no time they asserted the title.
43. In the light of the facts, it cannot be said that they have acquired the land by
way of adverse possession. We have perused the entire evidence and we do not
see any illegality or irregularity in appreciation of facts or law in this regard. The
judgment is well reasoned.
44. We accordingly dismiss the appeals. However, in the circumstances no order as
costs.