KONDA RAMA KRISHNA Vs. BAYANA SESHA REDDY

JUDGEMENT

(1.) The plaintiff in O.S.No.59 of 1986 on the file of the Court of the District Munsif, Badvel, is the appellant. The suit was filed by one Kanchamreddi Seshamma. While the suit was pending, she died and her nephew, Konda Ramakrishna Reddi, came on record as sole plaintiff, who is the appellant herein. The suit was filed for declaration of title over the suit schedule land admeasuring about Ac.0.10 cents. The trial Court decreed the suit on 28.04.1990. On an appeal by the defendants, however, the Court of the Subordinate Judge, Rajampet, by judgment dated 08.11.1994 in A.S.No.10 of 1990 reversed the judgment and decree of the trial Court and dismissed the suit.

(2.) Late Seshamma filed the suit alleging that her husband, Kanchamreddi Nagi Reddi, made an application for assignment of the suit schedule land belonging to the Government to him. The Tahasildar, Badvel, conducted enquiry, obtained no objection from the Gram Panchayat-Porumamilla, and issued patta assigning the land to Nagi Reddi. Nagi Reddi put up a hut and resided for some time. Later he let out the hut to local authority for running elementary school. After the death of Nagi Reddi, thirty five years prior to filing of the suit, his wife Seshamma, inherited the same. The present plaintiff being the adopted son of her brother, Seshamma gifted the property under a Will to the plaintiff. The mother of Seshamma and the mother of the first defendant-Byna Sesha Reddy, being sisters, the first defendant used to collect the rent on behalf of Seshamma and issue receipts. In 1974 there was a fire accident and the hut was destroyed. The second defendant who resides on the eastern side of the suit site (backyard) occupied the suit land and in spite of requests, did not deliver vacant possession. Therefore, the suit was filed for declaration of title and delivery of possession.

(3.) The second defendant-Obulamma filed written statement and the first defendant filed a memo adopting the said written statement. The case of the second defendant is that she constructed the hut in the suit schedule property and leased out the same to elementary school and that the first defendant was paying house tax from 1945-1946 to 1976-1977. She also stated that late Nagi Reddi never paid any tax and was never in possession. She alleged that the first defendant handed over the site to the second defendant, and in 1974, after the hut was burnt, the second defendant alone put a cattle shed without any objection from any quarter. She also claimed that for over a period of forty five years she is in possession and therefore she perfected her title by adverse possession. The trial Court framed three issues: 1) Whether the plaintiff is entitled for declaration of title to the suit schedule property? 2) Whether the plaintiff is entitled for recovery of possession of the property? and 3) Whether the second defendant perfected the title to the suit schedule property by adverse possession? An additional issue was also framed as to whether the registered Will dated 12.03.1986 in favour of the plaintiff is true, valid and binding. The plaintiff .examined himself as P.W.1 and marked Exs.A-1 to A-8. He, also examined P.Ws.2 to 4 to prove his case. The first defendant examined himself as D.W.1 and marked Ex.B-1, and Exs.C-1 and C-2, being the Commissioner's Report and plan, were marked by the Court. Ex.A-8 is the Will dated 12.03.1986 executed by late Seshamma in favour of the plaintiff. Ex.A-6 is the copy of the resolution by the Gram Panchayat and Ex.A-7, though marked as D.K.T patta in favour of late Nagi Reddi, is the extract of Assignment Register. Exs.A-1 and A-2 are the application made by Nagi Reddi and the endorsement made by the Tahasildar respectively. Ex.B-1 is the house tax register produced by the defendants. Be it noted that though the first defendant did not file a detailed written statement, he came to the box as D.W.1. But the second defendant who filed written statement did not come to the box to prove her case, especially, as rebuttal case that no assignment was made in favour of late Nagi Reddi or regarding her allegation that Nagi Reddi was never in possession of the property or that she alone was in possession of the property for over forty five years. On consideration of the oral and documentary evidence, the trial Court found that the first defendant was originally assigned the suit site on condition that the assignee should construct the house within six months, and as he did not comply with the condition, assignment was cancelled and the land was assigned to Nagi Reddi after considering his application, Ex.A-1, and resolution of the Gram Panchayat-Ex.A-6. Dealing with Exs.A-1 to A-7, the trial Court came to the conclusion that Ex.A-7-patta proves that Nagi Reddi, the husband of Seshamma (original plaintiff) was assigned the land. The trial Court also applied the presumption under Section 90 of the Indian Evidence Act, 1872 (for short 'the Evidence Act'), observing that Ex.A-7, being thirty years old, the genuineness of the same has to be presumed. The case of the second defendant was rejected by the trial Court observing that she did not produce any evidence to show that she has a title, and also found that the first defendant was collecting rent from the elementary school on behalf of Seshamma. For this purpose, the trial Court relied on the evidence of P.W.2 and P.W.3, who at the relevant time were working as Head Master and Teacher in the elementary school run in the hut raised in the suit schedule property. Ex.B-1-house tax receipt was rejected by the trial Court observing that the column in which the name and particulars of the owner have to be mentioned is vacant. The plea of the second defendant that she perfected her title by adverse possession was rejected observing that she failed to prove as to how she came into possession of the land when admittedly the suit schedule property forms backyard of her property.