REPORTABLE  

IN THE SUPREME COURT OF INDIA    CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL No. 2860    OF 2009                    (Arising out of SLP(C) No. 13568 of 2006)     

KATLA MUTHYAL NAIDU ...   Appellant(s)                         Versus    KOTHAPALLE VENKATAPPA NAIDU AND ORS. ...  Respondent(s)   

J U D G M E N T

Dr.ARIJIT PASAYAT,J.

Leave granted.

The controversy in the present appeal lies within a narrow compass.  The  

plaintiff  filed  a  second  appeal  in  terms  of  the  Section  100  of  the  Code  of  Civil  

Procedure, 1908, (in short the 'Code') questioning the reversal of the judgment and  

decree  in  O.S.  No.  243/1997  passed  by  a  learned  Principal  Junior  Civil  Judge,  

Puttur, by learned Senior Civil Judge, Puttur in AS No. 25/2002.  The second appeal  

was dismissed primarily on the ground that there was no plea of adverse possession  

anywhere in the plaint.   It  was noted that on examination of the plaint the only  

allegation made in the plaint was that the defendants are trying to disposess  the  

plaintiff.

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Learned  counsel  for  the  appellant  brought  to  our  notice  that  the

averments in the plaint at paras 2 and 4 which read as follows:

“2: The plaintiff submits that over since the time of his  

father for more than 60 years,  plaintiff  and his family members  have been in continuous, peaceful possession and enjoyment of the  

schedule property exercising absolute rights over the same.  The  plaintiff has been raising rain-fed crops in the schedule property.  

The plaintiff thus has perfected his title even by adverse possession  also.

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4: The plaintiff further submits that he is a small farmer  

and as a matter if state policy the government is not collecting any  kist for the schedule property.  The plaintiff further submits that as  

stated supra to the knowledge of the defendants, the plaintiff and  his family members have been in continuous,  open,  peaceful  and  

uninterrupted   possession  and  enjoyment  of  the  plaint  schedule  property.”

A bare reading of the averments shows that the conclusion of the High  

Court that there are no specific pleas relating to adverse possession are factually  

incorrect.  Therefore, we set aside the impugned judgment of  the  High Court  

and remit the matter  to it for fresh

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consideration in accordance with law.   

An  application  for  intervention  has  been  filed  by  one  Chekru  

Govinddaswamy (I.A No.  3)   seeking impleadment on the ground that  he has  

purchased  property  on  21st March,  2005.   Learned  counsel  for  the  appellant  

opposed the petition stating that the applicant cannot be treated to be a pendente

lite purchaser and the doctrine of lis pendense would not apply to such a case.

We do not consider it necessary to express any opinion in that regard.  If  

an application is filed before the High Court which has to hear of the second appeal,  

the application shall be considered it is proper perspective.

The appeal is allowed to the aforesaid extent with no order as to costs.

              ...................J.                                  (Dr. ARIJIT PASAYAT)   

             ....................J.                          ((ASOK KUMAR GANGULY)

New Delhi, April 27, 2009.