Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4788 OF 2008 (Arising out of SLP [C] No.23232 of 2007)

Kurella Naga Druva Vudaya Bhaskara Rao … Appellant

Vs.

Galla Jani Kamma Alias Nacharamma … Respondent

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted. Heard learned counsel.

2. This appeal is by the defendant in O.S. No.232 of 1979 on the file of

the  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 was

affirmed by the High Court on 27.9.2006.  

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3. The  case  of  respondent-plaintiff  in  the  plaint  was  that  she  is  the

owner  of  the  suit  schedule  property  (Survey  No.100  of  Rajanagaram

Village), having purchased it under a registered sale deed dated 10.4.1957

from  the  previous  owners  Sathyanarayana  Rao  and  Suryaprakash  Rao

represented  by  their  mother  Varalakshmamma.  She  paid  the  entire

consideration of Rs.10000/- and obtained possession of the land from her

vendors. The appellant-defendant, who is her close relative (son-in-law of

her  husband’s  brother)  offered  to  manage  the  suit  land  by  identifying

suitable persons to cultivate the said land. The suit land was given on lease

by the plaintiff to various persons suggested by the defendant, from time to

time. In the year 1971, the defendant offered that he himself will take the

suit  land on lease  on an annual  rent  of 40 bags  of paddy. The plaintiff

agreed and accordingly, from 1971 onwards, defendant was cultivating the

land. 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 her

counsel, demanding payment of agreed rent and possession of the land. The

defendant issued a reply dated 13.7.1979 alleging that he was not the tenant

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of plaintiff; that he had occupied the land in the year 1957 and had been

cultivating  the  land  ever  since  then  in  his  own right;  and  therefore,  the

question  of  delivering  possession  to  the  plaintiff  did  not  arise.  As  the

defendant  claimed ownership and denied being a cultivating tenant under

the plaintiff, the plaintiff treated the defendant to be a trespasser from the

date of such reply notice. The plaintiff prayed for a decree for possession of

the suit schedule land and consequential reliefs.  

4. The  defendant  filed  a  written  statement  claiming  that  he  was

occupying and cultivating the land from 1957 and had perfected his title by

adverse possession. He contended that the plaintiff-respondent was never in

possession and the sale deed dated 10.4.1957 in her favour was a nominal

deed,  that  one  Mahalaxmamma  (a  common  relative)  had  paid  the  sale

consideration and was the true owner, and that plaintiff had admitted this

position  in  an  agreement  dated  18.4.1959  executed  by  her  in  favour  of

Mahalaxmamma and her husband. The defendant  also contended that  the

suit was not maintainable for two reasons : (i) The plaintiff had stated in the

plaint that she had leased the land to defendant and the relationship between

them as that of landlord and cultivating tenant; and therefore, she ought to

have filed an eviction petition before the Special Officer (Tenancy Court)

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under the  Andhra Pradesh (Andhra Areas)  Tenancy Act,  1956 (‘Act’ for

short) and civil court had no jurisdiction. (ii) A mere suit for possession was

not  maintainable  in  the  absence  of  a  prayer  for  declaration,  as  he  had

disputed her title to the suit property.  

5. The court  framed issues  as to whether  the plaintiff  was entitled to

possession; whether the defendant had acquired title by adverse possession;

whether the plaintiff was entitled to mesne profits (damages for wrongful

occupation);  whether  the  plaintiff  had  executed  an  agreement  dated

18.4.1959 admitting that the sale deed dated 10.4.1957 in her favour was a

nominal document; whether the said agreement dated 18.4.1959 put forth by

defendant 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 court

by judgment  dated 13.9.1988 decreed the suit  for possession (and mesne

profits  to  be  determined  by a  separate  enquiry).  The  defendant  filed  an

appeal before the High Court in FA No.1990 of 1988 which was dismissed

by  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 by

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purchase under sale deed dated 10.4.1957; (ii) the sale in favour of plaintiff

was  not  nominal  as  alleged  by  defendant;  (iii)  the  agreement  dated

18.4.1959 put forth by defendant was a fabricated document; and (iv) the

defendant  had failed to establish title  by adverse possession.  Both courts

have also rejected the contentions that civil court had no jurisdiction and the

suit was not therefore maintainable.  

7. On the contentions  urged by the defendant-appellant,  the following

questions arise for our consideration :

(i) Whether  the  plaintiff’s  suit  for  possession  in  the  civil  court  was  not maintainable  and  whether  the  remedy  was  only  by  way of  an  eviction petition under section 13 of the Act ?

(ii) Whether the suit was not maintainable for want of a prayer for declaration of title ?

(iii) Whether the concurrent findings of fact recorded by the trial court and High Court that plaintiff was the owner of the suit property and that defendant had not made out title by adverse possession call for interference?  

Re : Question No. (i) :

8. The defendant submitted that the plaintiff had specifically admitted in

the  plaint  that  the  defendant  was  her  tenant  in  regard  to  suit  land.  He

contended  that  in  view  of  the  said  specific  admission  in  regard  to

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relationship of landlord and cultivating tenant,  a civil  suit  for possession

was barred by sections 13 and 16 of the Act.

9. Sections  13  and  16  of  the  Act  relied  on  by  the  appellant  read  as

under:  

“13. Termination of tenancy -  

Notwithstanding anything contained in Sections 10, 11 and 12, no landlord shall be entitled to terminate the tenancy and evict his cultivating tenant except by an application made in that behalf to the Special Officer and unless such cultivating tenant –

(a) has failed to pay the rent due by him within a period of one month from the date stipulated in the lease deed, or in the absence of such stipulation, within a period of one month from the date on which the rent is due according to the usage of the locality; and in case the rent is payable in the form of a share in the produce, has failed to deliver the produce at the time of harvest; or

(b) has done any act or has been guilty of any neglect, which is destructive of, or permanently injurious to the land; or

(c) has sub-let the land; or (d) has violated any of the conditions of the tenancy regarding the uses to

which the land may be put; or (e) has wilfully dented the landlord’s title to the land; or (f) has failed to comply with any order passed or direction issued by the

Special 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 the Special Officer under the provisions of this Act, shall, on application by the landlord or the cultivating tenant, as the case may be, be decided by the Special Officer after making an enquiry in the manner prescribed; x x x x x”

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10. It is true that the plaintiff had averred in the plaint that the defendant

was closely related  to  her  and she had  entrusted the management  of  the

schedule land to him; and that on his request, she had leased the suit land to

him in the year 1971 and he had paid the rent by way of share in crop up to

1978. But the plaintiff  further  specifically alleged that  the defendant  had

denied her  title  and claimed title  in  himself,  and he had also  denied  the

relationship of ‘landlord and tenant’; and that therefore, the defendant was a

trespasser  and   she  was  entitled  to  sue  for  possession  to  evict  the

‘trespasser’. 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 clear

that  plaintiff  claims  that  defendant  is  a  trespasser  in  the  suit  land.

Significantly, the defendant in his written statement did not allege that he

was the cultivating tenant of the suit land. On the other hand, he denied the

title  of  plaintiff  and  asserted  ownership  and  title  in  himself  by  adverse

possession alleging that he was in occupation of the suit property eversince

1957 in his own right. He categorically stated that plaintiff was never his

landlord. Neither plaintiff nor defendant claimed or admitted that there was

relationship of landlord and agricultural tenant them. To repeat, plaintiff’s

case was that the defendant was a trespasser. Consequently, tenancy was not

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an issue in the suit. Section 13 requires an application to be made to the

Special Officer under the Act only when a landlord wants to terminate the

tenancy and evict his cultivating tenant and not otherwise. When plaintiff’s

case is that the defendant is a trespasser and the case of defendant is that he

was  the  owner  and  he  was  never  a  tenant  of  the  suit  land  either  under

plaintiff  or  anyone  else,  the  suit  was  not  for  eviction  of  an  agricultural

tenant, and therefore, section 13 of the Act was not attracted.  

11. The appellant-defendant contended that as he had denied the title of

the 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 cultivating

tenant  wilfully  denies  the  landlord’s  title  to  the  land;  and  therefore  the

remedy of the landlord was to terminate the tenancy and seek eviction of the

cultivating tenant by making an application under section 13(e) of the Act,

and a civil suit was not maintainable. Termination of tenancy and eviction

petition under section 13(e) are contemplated only where (a) the defendant

is the cultivating tenant; and (b) the defendant wilfully denies the landlord’s

title to the land. In this case the defendant denied that he was the cultivating

tenant of the suit land and plaintiff claimed that defendant was a trespasser.

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Hence  the  first  requirement  for  application  of  section  13  (e)  was  not

satisfied.  If  the  case  of  plaintiff  had  been  that  the  defendant  was  the

cultivating  tenant  under  her  and  that  defendant  was  claiming  to  be  the

cultivating tenant under someone else by setting  up title in someone other

than  the  plaintiff-landlord,  section  13(e)  would  have  certainly  been

attracted. In this case, as noticed above, the plaintiff  alleged she was the

owner and the defendant was a trespasser. The defendant  asserted that he

was the owner by adverse possession and denied that he was a cultivating

tenant  at  any point  of  time.  When neither  party  to  the  suit  claimed  that

defendant was the cultivating tenant, and as the suit was not for eviction of

a  cultivating  tenant,  the  mere  denial  of  the  title  of  the  plaintiff  by  the

defendant in respect of an agricultural land, would not mean that only the

authorities under the Act will have jurisdiction and that plaintiff should sue

for eviction under the Act by approaching the Special Officer. Only a civil

suit was the remedy to obtain possession from a trespasser. Therefore the

contention 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  Abdulla

Bin Ali V. Galappa [1985 (2) SCC 54]. In that case, the appellants had filed

a  suit  for  possession  and  mesne  profits,  treating  the  defendants  -

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respondents  as  trespassers.  One  of  the  defences  in  the  written  statement

filed by the respondents therein was that the civil court had no jurisdiction

to try a suit as plaintiffs had pleaded in the plaint that the second defendant

was  the  tenant  of  the  disputed  plots  and  therefore  they  could  seek

possession  only by filing  an  application  in  the  Revenue  court  under  the

Tenancy Act. This Court did not agree. This Court found that though the

plaintiffs had referred to the tenancy of the second defendant in the plaint,

they had filed a suit treating the defendants as trespassers, as the defendants

had denied  their  title.  This  Court  held  that  a  suit  against  the  trespassers

would lie only in the civil court and not in the revenue court. This Court

observed :

“6. In our opinion the High Court was not quite correct in observing that  the  suit  was  filed  by  the  plaintiffs-appellants  on  the  basis  of relationship of landlord and tenant. Indeed, when the defendants denied the title of the plaintiffs and the tenancy, the plaintiffs filed the present suit treating  them to  be  trespassers  and  the  suit  is  not  on  the  basis  of  the relationship of landlord and tenant between the parties. It is no doubt true that  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 a suit treating the defendant to be a trespasser and a suit against a trespasser would lie only in the civil court and not in the revenue court.

7. We are, therefore, of the considered opinion that on the allegations made in the plaint the suit was cognizable by the civil court and that the High Court has erred in law in non-suiting the plaintiffs-appellants on the ground that the civil court had no jurisdiction.”  

13. It was next contended that having regard to section 16 of the Act any

dispute in regard to an agricultural tenancy had to be filed before the Special

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Officer under the Act. Section 16 provides that any dispute arising under

the Act between a landlord and a cultivating tenant in relation to a matter

not  otherwise decided by the Special  Officer  under the provisions  of the

Act, shall, on an application by the landlord or the cultivating tenant, as the

case may be, be decided by the Special Officer after making an enquiry in

the manner prescribed. But when both the plaintiff and the defendant claim

that  there  is  no  relation  of  landlord  and  cultivating  tenant,  there  is  no

question of  any dispute arising under the Act between them as landlord

and cultivating tenant. Further to attract section 16, the person approaching

the  Special  Officer  should  contend  that  he  is  either  a  landlord  or  a

cultivating tenant,  and admit the existence of the relationship of landlord

and cultivating tenant between the parties. Section 16 is only a provision

enabling a landlord or cultivating tenant to approach the Special Officer for

settlement of any dispute arising under the Act and it does not operate as a

bar  for  a  suit  by an  owner  against  a  trespasser.    This  position  is  long

recognized in Andhra Pradesh as is evident from the following observations

of 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 for the exercise of the jurisdiction by the Tahsildar under that section is the existence  of  the  relationship  of  landlord  and  cultivating  tenant.  The

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Tahsildar has no jurisdiction to decide a dispute which is not between a landlord and a cultivating tenant.”  

Re : Question (ii) :

14. The plaintiff had purchased the suit land under registered sale deed

dated  10.4.1957.  Defendant  did  not  claim  title  with  reference  to  any

document but claimed to have perfected title by adverse possession. A mere

claim by the defendant that he had perfected his title by adverse possession,

does  not  mean  that  a  cloud  is  raised  over  plaintiff’s  title  and  that  the

plaintiff who is the owner, should file a suit for declaration of title. Unless

the defendant raises a 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 possession was maintainable.  We are

fortified  in  this  view  by  the  following  observations  of  this  Court  in

Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs. & Ors. [2008 (4) SCC

594] :

“We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff’s title raises a cloud on the title of plaintiff to the property. A cloud is said to raise  over  a  person’s  title,  when some apparent  defect  in  his  title  to  a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title,

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it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration. ….”  

Re : Question No. (iii) :

15. The  appellant-defendant  next  contended  that  the  courts  below

committed an error in holding that the respondent – plaintiff was the owner

of  the  suit  property  and  he  (the  appellant)  had  not  established  title  by

adverse possession.  

16. In support of his contention that plaintiff is not the real owner and

that the sale deed dated 10.4.1957 in her favour was nominal, the defendant

relied on an alleged agreement  dated 18.4.1959 said to have been executed

by  the  plaintiff  in  favour  of  Mahalaxmamma  and  her  husband

acknowledging that the sale deed in her favour on 10.4.1957 was nominal,

and Mahalaxmamma and her husband had paid the sale consideration for

the  said  sale.  Both  the  courts  have  rightly  pointed  out  that  neither

Mahalaxammma during her lifetime nor her legal heirs after her death,  had

put forth any claim in respect of the suit property. The trial court and High

Court also found that the stamp papers used for the alleged agreement dated

18.4.1959 were purchased on 6.10.1961 and that supported the plaintiff’s

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contention that the defendant had used a blank stamp paper which contained

the signatures of herself and her husband.  

17. The  defendant  claimed  that  he  had  perfected  his  title  by  adverse

possession by being in open, continuous and hostile possession of the suit

property from 1957. He also produced some tax-receipts  showing that he

has paid the taxes in regard to the suit land. Some tax receipts also showed

that he paid the tax on behalf of someone else.  After considering the oral

and  documentary  evidence,  both  the  courts  have  entered  a  concurrent

finding that  the defendant  did  not  establish  adverse  possession,  and that

mere  possession  for  some  years  was  not  sufficient  to  claim  adverse

possession, unless such possession was hostile possession, denying the title

of  the  true  owner.  The  courts  have  pointed  out  that  if  according  to

defendant,  plaintiff  was  not  the  true  owner,  his  possession  hostile  to

plaintiff’s title will not be sufficient and he had to show that his possession

was also hostile to the title and possession of the true owner. After detailed

analysis  of  the  oral  and  documentary  evidence,  the  trial  court  and  High

Court  also  held  that  the  appellant  was  only  managing  the  properties  on

behalf of the plaintiff and his occupation was not hostile possession.  

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18. We find that both the courts have considered these two issues of fact

in detail  with reference to the evidence and recorded concurrent findings

against the defendant. This Court will not convert itself into a third court of

facts  and  re-examine  the  facts  or  disturb  concurrent  findings  of  facts.

Neither any perversity nor omission to consider evidence nor any error of

law has been pointed out with reference to consideration and appreciation of

evidence by the trial court and the High Court. We do not therefore find any

reason to re-examine the facts.  

19. Consequently the appeal is dismissed as having no merit.  

..……………………….J. (R. V. Raveendran)

New Delhi;          . ……………………….J. August 4, 2008. (Lokeshwar Singh Panta)

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