GARLAPATI VENKATESWARLU Vs. DIVI APPALACHARYULU

JUDGEMENT

(1.) This appeal is filed against the judgment and decree dt.13.11.1992 in O.S. No. 103 of 1979 on the file of the Sub-Ordinate Judge, Chirala. The appellants are defendant Nos. 2 and 3 in the said suit. The 1st defendant filed the suit for recovery of possession of the plaint schedule property, past profits @ Rs. 2,000/- for the year 1978-79, future profits and costs. The suit was filed on 16.10.1979. The subject matter of the suit is an extent of Ac.0.93 cents in Sy. No. 185/3 and another extent of Acs. 1.01 cents in Sy. No. 199/3 of Deverapalli Village, Chirala Taluq, Prakasham District (hereinafter referred to as the 'plaint schedule property').

(2.) The plaintiff contended that the plaint schedule property belonged to plaintiff and his family and the plaintiffs father late D. Sayanacharyulu purchased the said property from one Mutyala Venkateswarlu (PW.2) and others under registered sale deed Ex.A.1 dt.19.06.1933 for a consideration of Rs. 100/-; ever since the said purchase, plaintiffs father was in possession of plaint schedule property and after his death in the year 1950, plaintiff succeeded to the said property and that mutation was also effected in the year 1932 itself in the name of plaintiffs father in the Revenue records. He further contended that his father was a private medical practitioner practicing at Jandrapeta and therefore, the plaint schedule property which is located at Devarapalli Village was entrusted to one Late Ganeshula Subbaiah (for short, 'Subbiah') in or about 1941 and the latter used to cultivate the plaint schedule property. It was contended that out of the income derived, Subbaiah used to pay the cist on behalf of plaintiff's father and if any amount remained, he used to pay the same to plaintiffs father towards Maktha; that the lands are dry lands and no substantial income was derived by plaintiffs father and he did not even insist regularly for payment of rent on account of mutual confidence in those years; after plaintiffs father died in 1950, plaintiff and his brother Lakshmanudu inherited the said property. At the time of the death of plaintiff's father, plaintiff was aged about 10 years and so the management of the properties was entrusted to plaintiffs maternal uncle Pusuluri Ramacharyulu and he attended to the management of the property. The plaintiff contended that during that time also Subbaiah cultivated the said land as tenant; that Ramacharyulu used to go to the suit village and collect the rents yearly during the season; that Subbaiah died in 1966; and that 1st defendant is his daughter and 2nd defendant is his son-in-law. He alleged that the plaintiff was also practicing doctor in Jandrapeta, that after the death of Subbaiah, defendants approached plaintiffs maternal uncle and plaintiff for lease of the land and it was granted to defendants @ Rs. 200/- p.a. on condition that defendants would have to pay cist due each year but due to mutual confidence no written document was executed in that regard. He alleged that every year, defendant Nos. 1 and 2 used to pay amounts regularly up to 1977 and considering the loyalty and poverty of defendant Nos. 1 and 2, plaintiff did not make any claim for enhanced rent as he was himself a reputed medical practitioner. The plaintiff contended that his maternal uncle Ramacharyulu died on 14.04.1977 and thereafter defendant Nos. 1 and 2 did not pay rents for the year 1978-1979 in spite of demands. As Revenue officials were implementing provisions of Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971, plaintiff approached the Dy. Tahsildar at Devarapalli and submitted a declaration on 13.09.1979. At that time he came to know that defendant Nos. 1 and 2 have left the Devarapalli village and that the 3rd defendant was cultivating the land and that he obtained a sale deed dt.30.09.1977 (Ex.B.5) from defendant Nos. 1 and 2 in respect of plaint schedule property. The plaintiff contended that the said sale deed is sham and not binding on him and that 3rd defendant is only a trespasser and is in wrongful possession of plaint schedule property. He also contended that defendant Nos. 1 and 2 have no title to the plaint schedule property in order to sell it to the 3rd defendant. He alleged that anticipating legal action by the plaintiff, the 3rd defendant filed O.S. No. 505 of 1979 on 19.09.1979 for permanent injunction before the District Munsif Court, Chirala, against the plaintiff and one T. Sivarama Krishna, henchmen of 3rd defendant and as the plaintiff was residing at Jandrapeta, the plaintiff cannot take possession except by process of law and therefore, he was constrained to file the suit for recovery of possession.

(3.) The defendants filed a common written statement denying the plaint averments. They contended that the plaint schedule property did not belong to the plaintiff or his family. They pleaded that the plaint schedule property originally belonged to Subbaiah himself, the father of 1st defendant and he was in possession and enjoyment of the plaint schedule property along with other properties as a real owner. They contended that on the death of Subbaiah, they succeeded to his property including the plaint schedule property and for more than twelve years they enjoyed the plaint schedule property along with other properties of the said Subbaiah. They also pleaded that they have been in continuous and peaceful possession and enjoyment of plaint schedule property without any interruption, to the knowledge of one and all, as real owners and thus perfected their title by adverse possession also. They contended that defendant Nos. 1 and 2, being owners of the plaint schedule property, they alone paid the cist for the plaint schedule property after the death of Subbaiah. They denied that Subbaiah managed the plaint schedule property on behalf of the plaintiff's father or that he was a cultivating tenant of the land either under the plaintiff's father or the plaintiffs maternal uncle. They also denied that Subbaiah paid any Maktha to the plaintiff's father or his maternal uncle at any time. They further pleaded that even defendant Nos. 1 and 2 never approached plaintiff or his maternal uncle at any time to cultivate the land as tenants. They denied that there was any lease between the plaintiffs and the defendant Nos. 1 and 2 at any point of time. They pleaded that they sold the suit land to 3rd defendant on 21.04.1977 under Ex.B.2 - a receipt/agreement-of-sale for consideration of Rs. 20,000/- and delivered possession to 3rd defendant and thereafter executed registered sale deed Ex. B. 5 dt. 30.09.1977 in favor of 3rd defendant. They also pleaded that the alleged sale deed Ex.A. 1 in favor of plaintiff's father was only a fictitious document and that the vendor of the plaintiffs father under the said document M. Venkateshwarlu, neither had title nor possession of the plaint schedule properties at any time, and he cannot convey any title under the said sale deed. They therefore prayed that the suit be dismissed.