suit for possession for agriculutral land

7/30/2019 Suit for Possession for Agriculutral Land

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Code of Civil Procedure, 1908 Suit in civilcourt for recovery of possession of agricultural

land Maintainability of Held: Maintainableas neither plaintiff nor defendant claimed oradmitted that there was relationship of landlord and agricultural tenant between them

Plaintiffs case was that defendant wastrespasser and case of defendant was that hewas owner and was never tenant of suit landeither under plaintiff or anyone else Sincesuit was not for eviction of agricultural tenant,s.13 of 1956 Act not attracted AndhraPradesh (Andhra Areas) Tenancy Act, 1956

ss.13, 16. Adverse possession Suit forpossession Claim by defendant that he hadperfected his title by adverse possession andsuit was not maintainable for want of prayerfor declaration of title Held: Mere claim of adverse possession by defendant, does not

mean that a cloud is raised over plaintiffs titleand that the plaintiff who is the owner, shouldfile a suit for declaration of title Unless thedefendant raises a serious cloud over the title


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of the plaintiff, there is no need to file a suit fordeclaration On facts, plaintiff had title and

she only wanted possession and, therefore, suitfor possession was maintainable. Therespondent-plaintiff claiming herself to be theowner of certain agricultural land under a saledeed dated 10.4.1957 and alleging theappellant as trespasser, filed suit against himfor possession of the suit land. The defendantdenied the title of the plaintiff and claimed tohave perfected his title by adverse possession.His case was that the sale deed dated 10.4.1957was a nominal deed as was evident from an

agreement dated 18.1.1959 executed by theplaintiff and; that since the plaintiff had statedin the plaint that she had leased out the land tohim, she should have filed petition before theRevenue Court under the Andhra Pradesh(Andhra Areas) Tenancy Act, 1956. The Trial

Court decreed the suit and the High Courtaffirmed the decree. In the instant appeal filedby the defendant, the questions forconsideration before the Court were: (i)


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title to the land. [Para 10, 11] [858 B-C, E & F]1.2. It is true that in the instant case, the

plaintiff had averred in the plaint that thedefendant was closely related to her and on herrequest, she had leased the suit land to him inthe year 1971. But the plaintiff furtherspecifically alleged that the defendant haddenied her title and claimed title in himself,and he had also denied the relationship of `landlord and tenant; and that therefore, thedefendant was a trespasser and she wasentitled to sue for possession to evict the`trespasser. The averment in the plaint should

be read as a whole. If so done, it is clear thatplaintiff claims that defendant is a trespasserin the suit land. Significantly, the defendant inhis written statement did not allege that he wasthe cultivating tenant of the suit land eitherunder the plaintiff or anyone else. On the other

hand, he denied the title of plaintiff andasserted ownership and title in himself byadverse possession. Thus neither the plaintiff nor the defendant claimed or admitted that


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there was relationship of landlord andagricultural tenant between them.

Consequently tenancy was not an issue in thesuit nor was the suit for eviction of anagricultural tenant. Therefore Section 13 of theAct was not attracted. [Para 10] [857 E,F,G,H]1.3. Mere denial of the title of the plaintiff bythe defendant in respect of an agriculturalland would not mean that only the authoritiesunder the Act will have jurisdiction and thatplaintiff should sue for eviction under the Actby approaching the Special Officer. Only acivil suit was the remedy to obtain possession

from a trespasser. Further, to attract Section16 of the Act, the person approaching theSpecial Officer should contend that he is eithera landlord or a cultivating tenant, and admitthe existence of the relationship of landlordand cultivating tenant between the parties.

S.16 is only a provision enabling a landlord orcultivating tenant to approach the SpecialOfficer for settlement of any dispute arisingunder the Act and it does not operate as a bar


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for a suit by an owner against a trespasser.[Para 11, 13] [859 B,C & 860-E,F] Abdulla Bin

Ali v. Galappa 1985 (2) SCC 54 relied on. D.Venkata Reddy v. B.Bhushireddy AIR (1971)A.P. 87 referred to. 2.1. A mere claim by thedefendant that he had perfected his title byadverse possession, does not mean that a cloudis raised over plaintiffs title and that theplaintiff who is the owner, should file a suit fordeclaration of title. Unless the defendant raisesa serious cloud over the title of the plaintiff,there is no need to file a suit for declaration.Plaintiff had title and she only wanted

possession and therefore a suit for possessionwas maintainable. [Para 14] [861 B,C,D]Anathula Sudhakar v. P.Buchi Reddy (Dead)by LRs. & Ors. (2008) 4 SCC 594 relied on.2.2. Both the courts have entered a concurrentfinding that the defendant did not establish

adverse possession, and that mere possessionfor some years was not sufficient to claimadverse possession, unless such possession washostile possession, denying the title of the true


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owner. The courts have pointed out that if according to defendant, plaintiff was not the

true owner, his possession hostile to plaintiffstitle will not be sufficient and he had to showthat his possession was also hostile to the titleand possession of the true owner. Afterdetailed analysis of the oral and documentaryevidence, the trial court and High Court alsoheld that the appellant was only managing theproperties on behalf of the plaintiff and hisoccupation was not hostile possession. [Para17] [862 E,F,G] 3. The trial Court and the HighCourt have concurrently held that (i) plaintiff

had established her title to the suit land bypurchase under sale deed dated 10.4.1957; (ii)the sale in favour of plaintiff was not nominalas alleged by defendant; (iii) the agreementdated 18.4.1959 put forth by defendant was afabricated document; and (iv) the defendant

had failed to establish title by adversepossession. Both the courts have consideredthe issues of fact in detail with reference to theevidence and recorded concurrent findings


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against the defendant. Neither any perversitynor omission to consider evidence nor any

error of law has been pointed out withreference to consideration and appreciation of evidence by the trial court and the High Court.[Para 6 and 18] [855 F,G 862,H, 863-A,B] CaseLaw Reference 1985 (2) SCC 54 relied on Para12 AIR (1971) A.P. 87 referred to Para 13(2008) 4 SCC 594 relied on Para 14 RavindraShrivastava and A.T.M. Ranga Ramanujam,Kunal Verma, Rajul Shrivastav, Supriya Jain,K. Krishna Kumar, Anup Jain, P.R.K.Amarendra Kumar, Anu Gupta and Rami

Jethmalani for the Appellant. P.S. Narasimha,M. Srinivas R. Rao, Abid Ali Beera P. AndSudha Gupta for the Respondent.

Posted by advocatemmmohan May 13, 2013Filed Under Adverse possession , Appeal , appellate jurisdiction , High Court , Lawsuit , Supreme cousupreme court of india , Trial Court

ReportableIN THE SUPREME COURT OF INDICIVIL APPELLATE JURISDICTIOCIVIL APPEAL NO.4788 OF 200(Arising out of SLP [C] No.23232 of 2007)Kurella Naga Druva Vudaya Bhaskara Rao AppelVs.Galla Jani Kamma Alias Nacharamma Respondent
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J U D G M E N R.V.RAVEENDRAN, Leave granted. Heard learned counsel2. This appeal is by the defendant in O.S. No.232 of 1979 on the file ofthe Sub-ordinate Judge, Rajmundry. The said suit was filed by the

respondent plaintiff seeking possession of suit property and mesne profits.The suit was decreed by the trial court on 13.9.1988 and the decree waaffirmed by the High Court on 27.9.2013. The case of respondent-plaintiff in the plaint was that she is theowner of the suit schedule property (Survey No.100 of RajanagaramVillage), having purchased it under a registered sale deed dated 10.4.1957from the previous owners Sathyanarayana Rao and Suryaprakash Raorepresented by their mother Varalakshmamma. She paid the entireconsideration of Rs.10000/- and obtained possession of the land from hervendors. The appellant-defendant, who is her close relative (son-in-law ofher husbands brother) offered to manage the suit land by identifying

suitable persons to cultivate the said land. The suit land was given on leaseby the plaintiff to various persons suggested by the defendant, from time totime. In the year 1971, the defendant offered that he himself will take thesuit land on lease on an annual rent of 40 bags of paddy. The plaintiffagreed and accordingly, from 1971 onwards, defendant was cultivating theland. He was delivering 40 bags of paddy every year as rent, till Sankranti,1978. He did not pay the rent by way of share in produce, due on Sankranti,1979. Therefore, she issued a registered notice dated 12.7.1979 through hercounsel, demanding payment of agreed rent and possession of the land. Thedefendant issued a reply dated 13.7.1979 alleging that he was not the tenant2of plaintiff; that he had occupied the land in the year 1957 and had beencultivating the land ever since then in his own right; and therefore, thequestion of delivering possession to the plaintiff did not arise. As thedefendant claimed ownership and denied being a cultivating tenant underthe plaintiff, the plaintiff treated the defendant to be a trespasser from thedate of such reply notice. The plaintiff prayed for a decree for possession ofthe suit schedule land and consequential reliefs.4. The defendant filed a written statement claiming that he wasoccupying and cultivating the land from 1957 and had perfected his title byadverse possession . He contended that the plaintiff-respondent was never inpossession and the sale deed dated 10.4.1957 in her favour was a nominaldeed, that one Mahalaxmamma (a common relative) had paid the saleconsideration and was the true owner, and that plaintiff had admitted thisposition in an agreement dated 18.4.1959 executed by her in favour ofMahalaxmamma and her husband. The defendant also contended that thesuit was not maintainable for two reasons : (i) The plaintiff had stated in theplaint that she had leased the land to defendant and the relationship betweenthem as that of landlord and cultivating tenant; and therefore, she ought tohave filed an eviction petition before the Special Officer (Tenancy Co3under the Andhra Pradesh (Andhra Areas) Tenancy Act, 1956 (Act for
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short) and civil court had no jurisdiction. (ii) A mere suit for possession wasnot maintainable in the absence of a prayer for declaration, as he haddisputed her title to the suit property5. The court framed issues as to whether the plaintiff was entitled topossession; whether the defendant had acquired title by adverse possession;

whether the plaintiff was entitled to mesne profits (damages for wrongfuloccupation); whether the plaintiff had executed an agreement dated18.4.1959 admitting that the sale deed dated 10.4.1957 in her favour was anominal document; whether the said agreement dated 18.4.1959 put forth bydefendant was a forged document; and to what relief plaintiff was entitled.No issue was framed about tenancy or jurisdiction of the court.6. After considering the evidence oral and documentary, the trial courtby judgment dated 13.9.1988 decreed the suit for possession (and mesneprofits to be determined by a separate enquiry). The defendant filed anappeal before the High Court in FA No.1990 of 1988 which was dismissedby judgment dated 27.9.2006. The trial court and High Court have

concurrently held that (i) plaintiff had established her title to the suit land by4purchase under sale deed dated 10.4.1957; (ii) the sale in favour of plaintiffwas not nominal as alleged by defendant; (iii) the agreement dated18.4.1959 put forth by defendant was a fabricated document; and (iv) thedefendant had failed to establish title by adverse possession. Both courtshave also rejected the contentions that civil court had no jurisdiction and thesuit was not therefore maintainable7. On the contentions urged by the defendant-appellant, the followingquestions arise for our consideration (i) Whether the plaintiffs suit for possession in the civil court was notmaintainable and whether the remedy was only by way of an evictionpetition under section 13 of the Act (ii) Whether the suit was not maintainable for want of a prayer for declarationof title (iii) Whether the concurrent findings of fact recorded by the trial court and HighCourt that plaintiff was the owner of the suit property and that defendanthad not made out title by adverse possession call for interference?Re : Question No. (i) 8. The defendant submitted that the plaintiff had specifically admitted inthe plaint that the defendant was her tenant in regard to suit land. Hecontended that in view of the said specific admission in regard to5relationship of landlord and cultivating tenant, a civil suit for possesswas barred by sections 13 and 16 of the Act9. Sections 13 and 16 of the Act relied on by the appellant read asunder:13. Termination of tenancy Notwithstanding anything contained in Sections 10, 11 and 12, no landlordshall be entitled to terminate the tenancy and evict his cultivating tenantexcept by an application made in that behalf to the Special Officer andunless such cultivating tenant
http://en.wikipedia.org/wiki/Lawsuithttp://en.wikipedia.org/wiki/Lawsuit


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(a) has failed to pay the rent due by him within a period of one monthfrom the date stipulated in the lease deed, or in the absence of suchstipulation, within a period of one month from the date on which therent is due according to the usage of the locality; and in case the rent ispayable in the form of a share in the produce, has failed to deliver the

produce at the time of harvest; o(b) has done any act or has been guilty of any neglect, which is destructiveof, or permanently injurious to the land; or(c) has sub-let the land; (d) has violated any of the conditions of the tenancy regarding the uses towhich the land may be put; (e) has wilfully dented the landlords title to the land; or(f) has failed to comply with any order passed or direction issued by theSpecial Officer or the District Judge under this Act.16. Adjudication of disputes and appeal [1] Any dispute arising under this Act, between a landlord and a

cultivating tenant in relation to a matter not otherwise decided by theSpecial Officer under the provisions of this Act, shall, on application bythe landlord or the cultivating tenant, as the case may be, be decided by theSpecial Officer after making an enquiry in the manner prescribed;x x x x 610. It is true that the plaintiff had averred in the plaint that the defendantwas closely related to her and she had entrusted the management of theschedule land to him; and that on his request, she had leased the suit land tohim in the year 1971 and he had paid the rent by way of share in crop up to1978. But the plaintiff further specifically alleged that the defendant haddenied her title and claimed title in himself, and he had also denied therelationship of landlord and tenant; and that therefore, the defendant was atrespasser and she was entitled to sue for possession to evict thetrespasser. The averments relating to defendant earlier being the tenant,furnish the factual background leading to the cause of action for the suit.The averments in the plaint should be read as a whole. If so done, it is clearthat plaintiff claims that defendant is a trespasser in the suit land.Significantly, the defendant in his written statement did not allege that hewas the cultivating tenant of the suit land. On the other hand, he denied thetitle of plaintiff and asserted ownership and title in himself by adversepossession alleging that he was in occupation of the suit property eversince1957 in his own right. He categorically stated that plaintiff was never hislandlord. Neither plaintiff nor defendant claimed or admitted that there wasrelationship of landlord and agricultural tenant them. To repeat, plaintiffscase was that the defendant was a trespasser. Consequently, tenancy was not7an issue in the suit. Section 13 requires an application to be made to theSpecial Officer under the Act only when a landlord wants to terminate thetenancy and evict his cultivating tenant and not otherwise. When plaintiffscase is that the defendant is a trespasser and the case of defendant is that hewas the owner and he was never a tenant of the suit land either under


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plaintiff or anyone else, the suit was not for eviction of an agriculturaltenant, and therefore, section 13 of the Act was not attracted.11. The appellant-defendant contended that as he had denied the title ofthe plaintiff, the case would squarely fall under section 13 (e) of the Act.He submitted that section 13(e) contemplated termination of tenancy and

filing of an eviction petition against the cultivating tenant, if the cultivatingtenant wilfully denies the landlords title to the land; and therefore theremedy of the landlord was to terminate the tenancy and seek eviction of thecultivating tenant by making an application under section 13(e) of the Act,and a civil suit was not maintainable. Termination of tenancy and evictionpetition under section 13(e) are contemplated only where (a) the defendantis the cultivating tenant; and (b) the defendant wilfully denies the landlordstitle to the land. In this case the defendant denied that he was the cultivatingtenant of the suit land and plaintiff claimed that defendant was a trespasser.8Hence the first requirement for application of section 13 (e) was notsatisfied. If the case of plaintiff had been that the defendant was the

cultivating tenant under her and that defendant was claiming to be thecultivating tenant under someone else by setting up title in someone otherthan the plaintiff-landlord, section 13(e) would have certainly beenattracted. In this case, as noticed above, the plaintiff alleged she was theowner and the defendant was a trespasser. The defendant asserted that hewas the owner by adverse possession and denied that he was a cultivatingtenant at any point of time. When neither party to the suit claimed thatdefendant was the cultivating tenant, and as the suit was not for eviction ofa cultivating tenant, the mere denial of the title of the plaintiff by thedefendant in respect of an agricultural land, would not mean that only theauthorities under the Act will have jurisdiction and that plaintiff should suefor eviction under the Act by approaching the Special Officer. Only a civilsuit was the remedy to obtain possession from a trespasser. Therefore thecontention that the suit was not maintainable, is liable to be rejected.12. We are fortified in this view by a decision of this Court in AbdullaBin Ali V. Galappa [1985 (2) SCC 54]. In that case, the appellants had fileda suit for possession and mesne profits, treating the defendants -9respondents as trespassers. One of the defences in the written statementfiled by the respondents therein was that the civil court had no jurisdictionto try a suit as plaintiffs had pleaded in the plaint that the second defendantwas the tenant of the disputed plots and therefore they could seekpossession only by filing an application in the Revenue court under theTenancy Act. This Court did not agree. This Court found that though theplaintiffs had referred to the tenancy of the second defendant in the plaint,they had filed a suit treating the defendants as trespassers, as the defendantshad denied their title. This Court held that a suit against the trespasserswould lie only in the civil court and not in the revenue court. This Courtobserved 6. In our opinion the High Court was not quite correct in observingthat the suit was filed by the plaintiffs-appellants on the basis of


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relationship of landlord and tenant. Indeed, when the defendants deniedthe title of the plaintiffs and the tenancy, the plaintiffs filed the present suittreating them to be trespassers and the suit is not on the basis of therelationship of landlord and tenant between the parties. It is no doubt truethat the plaintiff had alleged that defendant 2 was a tenant but on the

denial of the tenancy and the title of the plaintiffs-appellants they filed asuit treating the defendant to be a trespasser and a suit against a trespasserwould lie only in the civil court and not in the revenue court.7. We are, therefore, of the considered opinion that on the allegationsmade in the plaint the suit was cognizable by the civil court and that theHigh Court has erred in law in non-suiting the plaintiffs-appellants on theground that the civil court had no jurisdiction.13. It was next contended that having regard to section 16 of the Act anydispute in regard to an agricultural tenancy had to be filed before the Special10Officer under the Act. Section 16 provides that any dispute arising underthe Act between a landlord and a cultivating tenant in relation to a matter

not otherwise decided by the Special Officer under the provisions of theAct, shall, on an application by the landlord or the cultivating tenant, as thecase may be, be decided by the Special Officer after making an enquiry inthe manner prescribed. But when both the plaintiff and the defendant claimthat there is no relation of landlord and cultivating tenant, there is noquestion of any dispute arising under the Act between them as landlordand cultivating tenant. Further to attract section 16, the person approachingthe Special Officer should contend that he is either a landlord or acultivating tenant, and admit the existence of the relationship of landlordand cultivating tenant between the parties. Section 16 is only a provisionenabling a landlord or cultivating tenant to approach the Special Officer forsettlement of any dispute arising under the Act and it does not operate as abar for a suit by an owner against a trespasser. This position is longrecognized in Andhra Pradesh as is evident from the following observationsof the Andhra Pradesh High Court in D. Venkata Reddy v. B.Bhushireddy[AIR 1971 A.P. 87] A reading of section 16(1) clearly shows that the necessary condition forthe exercise of the jurisdiction by the Tahsildar under that section is theexistence of the relationship of landlord and cultivating tenant. The11Tahsildar has no jurisdiction to decide a dispute which is not between alandlord and a cultivating tenant.Re : Question (ii) 14. The plaintiff had purchased the suit land under registered sale deeddated 10.4.1957. Defendant did not claim title with reference to anydocument but claimed to have perfected title by adverse possession. A mereclaim by the defendant that he had perfected his title by adverse possession,does not mean that a cloud is raised over plaintiffs title and that theplaintiff who is the owner, should file a suit for declaration of title. Unlessthe defendant raises a serious cloud over the title of the plaintiff, there is noneed to file a suit for declaration. Plaintiff had title and she only wanted


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possession and therefore a suit for possession was maintainable. We arefortified in this view by the following observations of this Court inAnathula Sudhakar v. P.Buchi Reddy (Dead) by LRs. & Ors. [2008 (4) SCC594] We may however clarify that a prayer for declaration will be necessary

only if the denial of title by the defendant or challenge to plaintiffs titleraises a cloud on the title of plaintiff to the property. A cloud is said toraise over a persons title, when some apparent defect in his title to aproperty, or when some prima facie right of a third party over it, is madeout or shown. An action for declaration, is the remedy to remove the cloudon the title to the property. On the other hand, where the plaintiff has cleartitle supported by documents, if a trespasser without any claim to title oran interloper without any apparent title, merely denies the plaintiffs title,12it does not amount to raising a cloud over the title of the plaintiff and itwill not be necessary for the plaintiff to sue for declaration. .Re : Question No. (iii)

15. The appellant-defendant next contended that the courts belowcommitted an error in holding that the respondent plaintiff was the ownerof the suit property and he (the appellant) had not established title byadverse possessio16. In support of his contention that plaintiff is not the real owner andthat the sale deed dated 10.4.1957 in her favour was nominal, the defendantrelied on an alleged agreement dated 18.4.1959 said to have been executedby the plaintiff in favour of Mahalaxmamma and her husbandacknowledging that the sale deed in her favour on 10.4.1957 was nominal,and Mahalaxmamma and her husband had paid the sale consideration forthe said sale. Both the courts have rightly pointed out that neitherMahalaxammma during her lifetime nor her legal heirs after her death, hadput forth any claim in respect of the suit property. The trial court and HighCourt also found that the stamp papers used for the alleged agreement dated18.4.1959 were purchased on 6.10.1961 and that supported the plaintiffs13contention that the defendant had used a blank stamp paper which containedthe signatures of herself and her husband17. The defendant claimed that he had perfected his title by adversepossession by being in open, continuous and hostile possession of the suitproperty from 1957. He also produced some tax-receipts showing that hehas paid the taxes in regard to the suit land. Some tax receipts also showedthat he paid the tax on behalf of someone else. After considering the oraland documentary evidence, both the courts have entered a concurrentfinding that the defendant did not establish adverse possession, and thatmere possession for some years was not sufficient to claim adversepossession, unless such possession was hostile possession, denying the titleof the true owner. The courts have pointed out that if according todefendant, plaintiff was not the true owner, his possession hostile toplaintiffs title will not be sufficient and he had to show that his possessionwas also hostile to the title and possession of the true owner. After detailed


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analysis of the oral and documentary evidence, the trial court and HighCourt also held that the appellant was only managing the properties onbehalf of the plaintiff and his occupation was not hostile possession.1418. We find that both the courts have considered these two issues of factin detail with reference to the evidence and recorded concurrent findings

against the defendant. This Court will not convert itself into a third court offacts and re-examine the facts or disturb concurrent findings of facts.Neither any perversity nor omission to consider evidence nor any error oflaw has been pointed out with reference to consideration and appreciation ofevidence by the trial court and the High Court. We do not therefore find anyreason to re-examine the fact19. Consequently the appeal is dismissed as having no merit....J.(R. V. RaveendraNew Delhi; . .JAugust 4, 2008. (Lokeshwar Singh Panta

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suit for possession for agriculutral land

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