GOLI KANNAYYA Vs. YENDRU SATHIRAJU

JUDGEMENT

(1.) The defendants in O.S.No.175 of 1987 on the file of the II Additional Subordinate Judge, Kakinada had preferred this appeal aggrieved by the judgment and decree made therein, decreeing the suit in part with proportionate costs, declaring the title and ownership of the plaintiff in plaint A & B schedule properties and recovery of possession thereof and also mandatory injunction directing the defendants to restore the doorway in the compound wall situated in between plaint A & B schedule properties and directing the defendants to pay future profits to the plaintiff from the date of filing of the suit, till the date of delivery of possession of plaint A & B schedule properties to the plaintiff, the quantum of which has to be ascertained in separate proceedings on an application by the plaintiff. However, the relief relating to the plaint-C schedule property had been negatived. Aggrieved by the same, cross objections had been preferred. It may be appropriate to refer here itself that the plaintiff in the suit died even prior to the filing of the appeal and the appeal was filed as against the LRs of the plaintiff and likewise, the said legal representatives of the plaintiff preferred cross objections so far, as they relate to the plaint C schedule property. The plaintiff Yendru Sathiraju filed the suit O.S.No.175 of 1987 on the file of the II Additional Subordinate Judge, Kakinada, for declaration of his title to the plaint A, B & C schedule properties and for recovery of possession and for mandatory injunction directing the defendants to restore opening in the northern compound wall in between plaint B & C schedule properties and to put up the door way in its former position, for recovery of future profits till the date of delivery of possession of the suit schedule properties and for the costs of the suits. As already referred to supra, the suit was partly decreed and aggrieved by the respective portions, the appeal and cross objections had been preferred by the respective parties.

(2.) CONTENTIONS OF SRI KRISHNA KOUNDINYA: Sri A.V.Krishna Kaundinya, learned counsel for appellants-defendants made the following submissions: The learned counsel had taken this Court through the respective pleadings of the parties, issues settled and the findings recorded by the learned Judge and would comment that in the light of the facts and circumstances, the reliefs prayed for by the plaintiff should have been negatived. The learned counsel also would maintain that in the facts and circumstances of the case, it cannot be said that the plaintiff alone had succeeded the properties of his father late Yendru Kannayya as his nearest sole legal representative. The learned counsel also pointed out relating to the alleged partition of the year 1922 and the findings recorded in relation thereto. The learned counsel also pointed out to the evidence of PW1 and would comment that even in the year 1922, Goli Sathemma and China Sathemma got themselves divided with the plaintiff and began living in the properties allotted to them under the will of Goli Ammanna and they began to stay with absolute rights from the time of death of Ammanna. The learned counsel also pointed out that Goli Sathemma, in pursuance of absolute rights with a power to alienation executed a settlement deed dated 20.12.1943 and even in view of the same, the plaintiff is not entitled to the reliefs prayed for. The learned counsel also pointed out to the recitals in Ex.A1 and would comment that what had been specified under Ex.A1 is not a restricted life estate of Goli Sathemma, but a full and absolute estate with all powers to alienation. Even, otherwise, the learned counsel would contend that if it is to be taken that Goli Sathemma died intestate, even then, the appellants-defendants alone would be the heirs and the plaintiff cannot have any claim whatsoever. The learned counsel also commented that the finding recorded that Goli Sathemma had been in possession of plaint B schedule property only as a licensee cannot be sustained. The learned counsel also explained in detail the expression Kutumbikulu i.e., family members and would contend that the expression Kutumbikulu would include not only the male members of the family and since Goli Sathemma died in 1986, the succession opens in the year 1986 and in view of the same, even otherwise, the learned Judge should have arrived at a conclusion that all the heirs of Yendru Kannaiah would be entitled to the plaint-A schedule property. The learned counsel also had placed reliance on Sree Suryarayandra Nighantuvu and explained the ordinary dictionary meaning given to Kutumbam. While further elaborating the submissions relating to the applicability of Section 14(1) and 14(2) of the Hindu Succession Act, 1956, the learned counsel would contend that in the light of the recitals of Ex.A1, the learned Judge should have arrived at a conclusion that the property in the possession of Goli Sathemma became her separate absolute property by virtue of the operation of Section 14(1) of the Hindu Succession Act, 1956. The learned counsel also made yet another submission relating to the perfection of title by adverse possession or extinguishment of title and would comment that the fact that till 1986, Goli Sathemma had been in possession of the property is not in serious controversy. The learned counsel also would comment that there are certain admissions made by PW1 that even during his younger days, he thought of making demand, but kept quiet being afraid of the resistance and hence, the possession cannot be taken to be the permissive possession and it must be taken that the defendants had perfected their title by adverse possession.

(3.) CONTENTIONS OF SRI V.L.N.G.K.MURTHY: Sri V.L.N.G.K.Murthy, learned counsel representing the legal representatives of the plaintiff/respondents in the appeal and the cross objectors made the following submissions: The learned counsel maintained that it is not as though Goli Sathemma had any pre-existing right whatsoever, and on appreciation of the evidence available on record, the learned Judge recorded a clear finding and hence, since certain rights had been conferred by virtue of Ex.A1 for the first time, it cannot be said that such rights are in pursuance of any such confirmation of rights or in pursuance of any pre-existing rights and in view of the same, Section 14(2) of the Hindu Succession Act, 1956 alone would be applicable. The learned counsel also further explained that though the evidence of PW1 and DW1 alone is available on record, in the light of the clear documentary evidence, the findings recorded by the learned Judge cannot be found fault in relation to the plaint A & B schedule property. The learned counsel also commented about Ex.B1 and would contend that the main execution of settlement deed, even if it be true, by a limited owner, will not alter the situation in any way. The learned counsel placed reliance on a decision Shiv Dass And Others Vs. Smt.Devki And Others (AIR 1978 Punjab & Haryana 285). The learned counsel also would contend that the term or expression Kutumbikulu to be understood in its ordinary normal sense and the learned counsel also would explain that the language employed in Ex.A1, which is a very old document of 1906 may have to be understood in the context in which such expression had been employed. The learned counsel also would contend that if the expression Kutumbikulu to be given broader interpretation so as to engulf not only the successors on the male lines but also the successors of all the female lines, it would amount to opening a Pandoras box, by virtue of which, the claims over these properties would be too numerous. Even, otherwise, the learned counsel would contend that the expression may have to be understood in the context of the social conditions as they existed in the Hindu Society during those days of 1906. The learned counsel also on the aspect of adverse possession pointed out that till Goli Sathemma was alive, there is no question of opening of succession. It is but natural that when the limited owner had been in possession of the property, immediately after the death of the limited owner in the year 1986, inasmuch as the defendants were continuing in possession of the respective properties, the plaintiff thought of instituting the present suit praying for the reliefs referred to supra. The learned counsel also pointed out that even if the limited owner had executed a document laying Ex.B1 at the best, the said document can be said to be operative till the death of the said Goli Sathemma, the limited owner and not beyond the life time of the said Goli Sathemma. When the possession commenced as permissive possession, even if there is an admission on the part of PW1 that some attempt was made at a particular point of time, such attempt if any made by the plaintiff would be of no consequence inasmuch as limited owner Goli Sattemma was alive by then and inasmuch as the succession itself would open on the death of Goli Sathemma, the whole period to be taken as permissive possession only of the limited owner and it can never become adverse. Even, otherwise, the learned counsel would contend that when the plaintiff was able to establish his title from what date actually the adverse possession commenced and how they had perfected title by adverse possession, the burden is on the appellants/defendants and in the absence of clear evidence, the plaintiff is bound to succeed. The learned counsel made certain submissions in relation to the legal position under the old Limitation Act and the present Limitation Act and the changes which had been brought in by introducing Articles 64 & 65 of the Limitation Act, 1963 in this regard. The learned counsel ultimately concluded that in the facts and circumstances of the case, the plea of adverse possession also is not available to the appellants/defendants. While further making his submissions on the aspect of cross objections, the learned counsel would maintain that except the oral evidence of PW1 and also the documentary evidence Ex.A1, A6 & A7, there is no other evidence available on record. The learned counsel pointed out to the relevant findings recorded by the learned Judge and would contend that in view of the fact that the documents Exs.A6 & A7 are of the year 1915 and 1912, it is but natural that the boundaries may not tally and on that ground alone, the plaintiff cannot be non-suited.