ANJALI DEVI Vs. SWAMY LINGA SWAMY

JUDGEMENT

(1.) The unsuccessful defendants are the appellants. The first respondent laid the suit for possession. On the ground that the appellants trespassed into the land and in May 1971 they were making unauthorised constructions. It is bis case that 1/12th share of Hyder AH Khan and 1/8th share of Sarfary Ali Khan situatedin Subhan Khan Devidi, Shah Ali Banda was notified to be evacuee property by the cusotodian. The custodian put it to auction on 25th December, 1962. Respondents vendor one Uberroi purchased the said property and under Exhibit A-4. sale certificate dated 12th June, 1965 was issued. Subsequently he obtained a rectification deed Exhibit A-4 on 8th May, 1964, specifying the boundaries and extents. The first respondent purchased the said property including the one in dispute from Uberoi under Exhibit A-1 dated 23rd October, 1963, and even since he has been in possession and enjoyment of the same. The appellants trespassed into the land and he got issued a notice under Exhibit A-10 dated 9th June 1971, for which reply dated 21st June, 1971 was got issued by the appellants, denying the first respondent's title to and possession of and also asserting their possession and purchase of the propery from their vendors under Exhibits B-1 to B-3, and as a result the suit was filed.

(2.) It is the case of the appellants than an extent of 406 sq. yards belonged to Md. Qutub Ali Khan and two others and this property is outside the Devidi. They were in occupation for more than 15 years. They purchased the said property from their vendors under Exhibits B-1 to B-3 and got the sale deeds registered on 9th May, 1962. They applied to the Municipal Corporation for permission to construct a pucca house in the place of the existing huts, on 21st August, 1962 under Exhibit B-4 and the Municipality accorded permission in 1964 under Exhibit B-6, and thereafter they constructed a house and they have been in possession of the same. After framing appropriate issues and adduction of evidence, the trial Court dismissed the suit in the first instance on 31st March, 1977, but on appeal the appellate Court held that the first respondent had title to the plaint schedule property, but since the question of adverse possession was not gone into, it remitted to the trial Court by its judgment dated 13th November, 1978. Thereafter, by judgment dated 30th June, 1979, the trial Court held that the appellants have not established their adverse possession and accordingly decreed the suit for ejectment. When the appellants carried the matter on appeal, the appellate Court confirmed the decree. Thus the second appeal

(3.) In this appeal, Sri Poornaiah, the learned Counsel for the appellants has contended that the appellate Court has not considered the relevant admissions made by P. W. 1 and P. W. 2 in their oral evidence touching the question of adverse possession. The plaintiff as P. W. 1 has admitted that as on the date of the auction the appellants are in possession. P. W. 2 admitted that right from 1949 the appellants are in possession. Taking there two admissions into consideration, the plea of the appellants that they acquired title by adverse possession has been established. But the appellate Court did not consider this evidence. He also sough to contend that on question of title though before remand the appellate Court in the first instance held that respondent had title that question is open to canvass in this Court. The question of finality is for the purpose of the first appellate Court, and the second appellate Court when it is considering the matter finally, it is open to this Court to go into the question of title as well. Though this contention does carry force, I directed the Counsel to address on the question of adverse possession, assuring that in case I am not inclined to accept his contention, then I would permit him to argue on the question of title as well. He contended thereby that the approach of the appellate Court in not considering the question of adverse possession on the basis of the material oral evidence, namely the admissions made by the adversary, constitutes substantial question of law. Their admission establishes the plea of the appellants that they had perfected their title by adverse possession.