Decided on November 06,1963



Gopal Rao Ekbote, J. - (1.) This is an appeal under clause(15) of the Letters Patent against a Judgment and Decree dated 30th June, 1961, given by Mr. Justice Srinivasachari in S.A. No. 768 of 1957. The facts which are essential to appreciate the merits of the contentions advanced before us may be briefly stated. The plaintiffs-respondents instituted a suit for declaration of their title and for delivery of possession against the defendants-appellants alleging inter alia that the two house sites marked ABCD and EFGH belonged to the defendants 4 and 5 who sold them to the plaintiffs by registered sale deed dated 6th June, 1953. The defendants Nos. 1 to 3 are residing in the house situate between the abovesaid two sites. The house in which defendants i to 3 are living was constructed by them, on the site which also originally belonged to defendants 4 and 5. The plaintiffs wanted to carry on certain constructions on the suit house sites, but defendants 1 to 3 obstructed. Hence the suit was laid. Defendantts 4 and 5 remained ex parte. Defendants 1 to 3 however in their written statement denied the allegation that the suit sites at any time belonged to defendants 4 and 5. Their contention was that, the suit sites belonged to the Government and that the defendants were in possession of the same since thirty years. They denied the fact that the plaintiffs purchased the suit sites from defendants 4 and 5. The defendants also denied that they obstructed the plaintiffs from any constructions on the suit house sites. On these pleadings the District Munsif, Anantapur, framed appropriate issues, and after recording the evidence adduced by the parties decreed the plaintiff's suit as against defendants 1 to 3 and dismissed against defendants 4 and 5. The learned District Munsif held that defendants 1 to 3 have failed to prove their adverse possession and that the plaintiffs therefore are entitled to a decree. He found that the house sites belonged to the plaintiffs and that they purchased the same from, defendants 4 and 5 through a sale deed of 1953.
(2.) Dissatisfied with that judgment and decree, defendants 1 to 3 went in appeal before the Subordinate Judge, Anantapur. Agreeing with the conclusions of the District Munsif, the learned Subordinate Judge dismissed the appeal. Defendants, 1 to 3 therefore preferred a second appeal which came up for hearing before Srinivasachari, J. The second appeal was heard by the learned Judge on 14th November, 1960. The learned Judge held that "The approach of both the Courts is wrong in that they came to the conclusion that because adverse possession of the defendants was not established, the plaintiffs were entitled to succeed. The fact is that the principle of possession following title would be applied in cases where there is nosatisfactory evidence on either side as regards possession."
(3.) The learned Judge therefore remanded the case to the lower appellate Court to decide the case afresh on the evidence in the light of the observation made in the said judgment. The plaintiffs thereafter seem to have filed an application under Order 47, rule 1 of the Civil Procedure Code seeking the review of the judgment given by Srinivasachari, J., on 14th November, 1960. The learned Judge allowed that petition and heard the appeal again. The learned Judge this time disallowed the appeal and confirmed the judgment and decree of the lower Courts. Distinguishing the Full Bench case of the Madras High Court, The Official Receiver of East Godavary v. Govindaraju, 1940 2 M.L.J. 190 : I.LR 1940 Mad 953. the learned Judge found that defendants 1 to 3 have failed to establish their adverse possession and as there is no specific allegation of the plaintiffs having been dispossessed by defendants 1 to 3 the plaintiffs are entitled to a decree. It is this judgment which is now challenged before us in this Letters Patent Appeal.;

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