Decided on February 16,1971



- (1.) This appeal is filed by the plaintiff against a decree passed by the learned Subordinates Judge, Visakhapatnam dismissing the suit O. S. No. 65 of 1963. The suit was for a declaration of plaintiffs title to a small extent of site measuring. 1,433 Square Yards which was acquired by the Government under the Land Acquisition Act to provide for a fire station. There were rival claims for the compensations amount by the plaintiff on the one hand and Maharanipeta Military Mosque the defendant, on the other. As the plaintiff was referred t a suit be filed the present suit from declaration. He seeks to establish his title only by adverse possession of himself and of his father for over 80 years. The case of the defendant is that the property belongs to the Mosque and that the plaintiff was only a lessee under the Mosque. The Court below rejected the plaintiffs case and accepted the plea of the defendant, and accordingly dismissed the suit. Aggrieved by this judgment the plaintiffs filed on above appeal.
(2.) The main point for consideration in this appeal is whether the plaintiff has made out his title to the suit property. It is common ground that there is no written evidence to show that either the plaintiff or his father asserted a title to the property in themselves, in derogation of the title of the Mosque is concerned of the evidenced by Ex. B-1 which represents the purchase of property by one Syed Hyder who subsequently dedicated the same to the Mosque by making an endorsement on the document Ex. B-1. According to the plaintiff he was himself leasing out the property as owner. But there is not a scrap of paper to prove such enjoyment nor is there any oral evidence to show that the plaintiff was leasing out the property to others. It is one of the fundamental requirements of prescription of title by adverse possession that the adverse possessor should assert a title in himself openly and in derogation of the title of the true owner for a continuous period of twelve years. In the absence of any evidence to show that the plaintiff asserted such a title, it is not open to him to set up a title by adverse possession. But it is strenuously contended by the learned counsel for the appellant that he was admittedly in possession of the property and that his possession must be deemed to be adverse to the real owner. I am unable to agree with this extreme contention unless there is evidence about the animus with which the plaintiff was in possession. There is no rule of law which requires the court to presume that the animus was necessarily adverse to the true owners.
(3.) On the other hand, the case of the defendant has been accepted by the court below namely that the plaintiff was in possession as a tenant of the Mosque. Previously a suit was filed on behalf as S. C. No. 81 of 50 for recovery of arrears of rent on the basis of Kadapa executed by him which is now marked as Ex. B-11 in this case. It was also filed as Ex. B-27 in the previous suit. Though the present plaintiff denied the genuineness of that Kadapa the court below found against his plea and decreed the suit for rent. Under these circumstances it is now futile on the part of the plaintiff to say that the said Kadapa has not been proved. In fact D. W. 1 has spoken about the said lease in this suit and the evidence was accepted by the court below. Even if the kadapa is unregistered it is admissible for the collateral purpose of proving the nature of possession as one under a derivative title. The court below also placed strong reliance upon the statement Ex. B-2 given by the plaintiff before the Deputy Collector in which he admitted that he paid rent to the Mosque. No doubt the defendant has not been able to produce the original in the court below, but he filed only the certified copy. He filed the original in the previous suit O. S. 31/50 which was tried along with S. C. 81/50. The said document was accepted as a genuine document in the previous litigation and there is no force in the objection that the original has not be summoned before the court.;

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