APHC010014512018 IN THE HIGH COURT OF ANDHRA PRADESH^ESlTJ AT AMARAVATI On - <r vm ■ji-? lOC /Jn m i.s MONDAY, THE FIRST DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT HON’BLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO SECOND APPEAL NO: 61 OF 2018 Between: 1. Vallepalli Subba Rao, aged about 50 years, S/o. Late Chandram, R/o. Ramachandrapuram, H/o. Jangareddigudem, Jangareddigudem Mandaal, West Godavari District, Jangareddigudem JCJC. 2. Vallepalli Venkata Rama Krishna, Aged about 48years, S/o. Late Chandram, R/o. Ramachandrapuram, H/o. Jangareddigudem, Jangareddigudem Mandal, West Godavari District. ...Appellants/Appellants(Plaintiffs) AND 1. Kondareddy Lakshmipathi (Died) 2. Kondaredy Dharma Raju, Aged about 56 Years, S/o. Bhaskara Rao, R/o. Ramachandrapuram, H/o. Jangareddigudem, Jangareddigudem Mandal, West Godavari District, Jangareddigudem JCJC. 3. Kondareddy Rukmini, Aged about 51 Years, W/o. Dharma Raju, R/o. Ramachandrapuram, H/o. Jangareddigudem, Jangareddigudem Mandal, West Godavari District, Jangareddigudem JCJC. 4. Yellina Nageswara Rao, Aged about 42 Years, S/o. Narasayya, R/o. Ramachandrapuram, H/o. Jangareddigudem, Jangareddigudem Mandal, West Godavari District, Jangareddigudem JCJC. ...Respondents/Respondents (Defendants) * Appeal filed under Section 100 of CPC aggrieved by the Judgment I, ^*arid Decree dated passed in O.S.No.54 of 2010, the appellants filed AS.No.4 f of 2016 pn the file of IX Additional District Judge, West Godavari at Kovvur and the same is dismissed on 17-10/2027. The appellants herein, preferred this Second appeal aggrieved by the concurrent Judgments and Decrees passed in O.S.No.54 of 2010 on the file of the Junior Civil Judge, Jangareddigudem and A.S.No.4 of 2016 on the file of IX Additional District Judge, West Godavari, Kovvur. This appeal is coming on for hearing and upon perusing the Memorandum of Appeal, the decrees of the Lower Courts and the material papers in the case, and upon hearing the arguments of Sri. G. Ramachandra Reddy, Advocate for the Appellant and Sri. E V V S Ravi Kumar, Advocate for the Respondent. THIS COURT DOTH ORDER AND DECREE:- 1. That the Second Appeal be and hereby is Dismissed. 2. That the Judgment and Decree passed by both be and is hereby confirmed. 3. That case each party do bear their own costs in the Second appeal. Sd/- V DIWAKAR DEPUTY REGISTRAR SECTION OFFICER //TRUE COPY// To, 1. The Civil Judge, (Junior Division), Jangareddigudem, West Godavari District. 2. The IX Additional District Judge, West Godavari, Kovvur. 3. Two C.D Copies. Ssl sree HIGH COURT DATED:01/09/2025 DECREE SA.N0.61 OF 2018 ^ 19 SEP 2025 n'* <» DISMISSING THE SECOND APPEAL , >') APHC010014512018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI MONDAY, THE FIRST DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT HON’BLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO SECOND APPEAL NO: 61 OF 2018 Appeal filed under Section 100 of CPC aggrieved by the Judgment and Decree dated passed in O.S.No.54 of 2010, the appellants filed AS.No.4 of 2016 on the file of IX Additional District Judge, West Godavari at Kovvur and the same is dismissed on 17-10/2027. The appellants herein, preferred this Second appeal aggrieved by the concurrent judgments and decrees passed in O.S.No.54 of 2010 on the file of the Junior Civil Judge, Jangareddigudem and AS.No.4 of 2016 on the file of IX Additional District Judge, West Godavari, Kovvur. Between: 1. Vallepalli Subba Rao, aged about 50 years, S/o. Late Chandram, R/o. Ramachandrapuram, H/o. Jangareddigudem, Jangareddigudem Mandaal, West Godavari District, Jangareddigudem JCJC. 2. Vallepalli Venkata Rama Krishna, Aged about 48years Ramachandrapuram, Jangareddigudem Mandal, West Godavari District. S/o. Late Jangareddigudem, Chandram, R/o. H/o. ...Appellants/Appellants(Plaintiffs) AND V ’ / 1. Kondareddy Lakshmipathi (Died) Dharma Raju, Aged about 56 Years, S/o. Bhaskara Rao, H/o. Jangareddigudem, Jangareddigudem 2. Kondaredy Hlo. Ramachandrapuram West Godavari District, Jangareddigudem JCJC. Mandal 3. Kondareddy Rukmini, Aged about 51 Years, W/o. Dharma Raju, H/o. Jangareddigudem, Jangareddigudem R/o. Ramachandrapuram, West Godavari District, Jangareddigudem JCJC. Mandal, 4. Yellina Nageswara Rao, Aged about 42 Years, S/o. Narasayya, R/o. Ramachandrapuram, H/o. Jangareddigudem, Jangareddigudem West Godavari District, Jangareddigudem JCJC. Mandal, ...Respondents/Respondents (Defendants) Counsel for the Petitioner: SRI. G. RAMACHANDRA REDDY Counsel for the Respondents; SRI. E VV S RAVI KUMAR The Court made the following Judgment; K HONOURABLE SRI JUSTICE V, GOPALA KRISHNA RAO Second Appeal No.61 of 2018 Judgment: This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short) is filed aggrieved against the Judgment and decree, dated 17.10.2017 in A.S.No.4 of 2016, on the file of learned IX Additional District Judge, West Godavari at Kovvur, confirming the Judgment and decree, dated 17.11.2015 in O S.No.54 of 2010, on the file of learned Junior Civil Judge, Jangareddigudem. 2. The appellants herein are the plaintiffs and the respondents herein are the defendants in O.S.No.54 of 2010, on the file of learned Junior Civil Judge, Jangareddigudem. During the pendency of the first appeal, the 1®* respondent died. 3. The plaintiffs initiated action in O.S.No.54 of 2010, on the file of learned Junior Civil Judge, Jangareddigudem, with a prayer for declaration of title, consequential possession of plaint ‘A’ schedule property or alternatively for partition of ‘B’ schedule property, possession, mesne profits and for costs of the suit. 4. The trial Court dismissed the suit in O.S.No.54 of 2010, on the file of learned Junior Civil Judge, Jangareddigudem. Felt aggrieved of the same, the plaintiffs in the above said suit filed A.S.No.4 of 2016, on the file of learned IX Additional District Judge, West Godavari at Kovvur. The learned IX Additional District Judge, West Godavari at Kovvur, dismissed the appeal by confirming the decree and judgment passed by the trial Court. Aggrieved thereby, the plaintiffs in the suit approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 2 VGKR, J. SA_61_2018 6. The case of the plaintiffs, in brief, as set out in the plaint averments in O.S.No.54 of 2010, is as follows; (a) The plaintiffs 1 and 2 are the brothers and Chandram. The defendants 1 and 2 sons of one late are brothers and sons of one late Kondireddy Bhaskara Rao, son of Swami. The maternal uncle of the plaintiffs by name Kondireddy Bhaskara Rao, purchased an extent of Ac.9.50 cents in R.S.No.14/1 and 14/2 under a registered sale deed dated 15.12.1958 from one Mullapudi Muniah etc., which is shown as Ac.9.60 cents son of Swamy, as per revenue records. Said Kondireddy Bhaskara Rao sold an extent of Ac.2.00 cents of cultivable land and 1 /3'‘^ joint right which is an extent of Ac. 1.16 cents in the tank portion, in total an extent of Ac.3.16 cents was sold to father of plaintiffs under a registered sale deed dated 02.08.1961. Ever since the date of purchase, the father of the plaintiffs and his vendor Bhaskara Rao enjoyed the land with joint tank. The plaintiffs’ father died long back and the plaintiffs have been enjoying the same. (b) During the lifetime of Kondireddy Bhaskara Rao, his sons partitioned their properties. During the partition, the lands in R.S.No.14/1 and 14/2 were fell to the shares of defendants 1 and 2 respectively. Subsequently, the 1®' defendant sold an extent of Ac. 1.50 cents of land in R.S.No.14/1 to the 4**^ defendant to the south of the portion under a registered sale deed dated 28.09.1994. 28.09.1994, the 1®* defendant sold an extent of Ac. 1.00 cents i;: R.S.No.14/1 to the 3'^ defendant. The plaintiffs filed a plan showing the existing physical features on land along with the plaint. tank On in 4r (c) The defendants 1 to 4 colluded together, highhandedly and illegally took possession of Ac. 1.02 cents of land which was covered as tank portion from the plaintiffs in May, 2009. Since then, the defendants ' to 4 occupied the plaint A’ schedule shown 1 as A, B, C of plaint plan 3 VGKR, J. SA 61 2018 property and continued in possession of the same. Ever since, the plaintiffs demanded the defendants for possession of the plaint ‘A’ schedule property, but they postponed the same. The plaintiffs demanded the defendants through village elders also, but in vain. Since one month, the defendants are proclaiming that the plaintiffs had no right in the plaint A’ schedule property and no registered partition was took place with regard to division of Ac.3.50 cents which is tank portion. After encroachment, the defendants removed the boundary bunds and converted the same into the paddy rows (Badava Medulu). The plaintiffs are having absolute right, title and 1/3’’^ right in the tank portion as they enjoying the same. The plaintiffs had no other go except to file this suit for declaration of plaintiffs right and title over plaint ‘A’ schedule property and for consequential possession of the same with mesne profits and alternatively for partition of plaintiffs 1/3^*^ right over the plaint ‘B’ schedule showing of ABCD of plaint plan property. Hence the suit. 7. The 2*^^ defendant filed written statement which was adopted by defendant Nos.1, 3 and 4 before the trial Court denying the material averments in the plaint and contended as follows: (a) There was a dispute with regard to the passage to the lands of the plaintiffs even during the lifetime of father of the plaintiffs namely Vallepalli Chandram between the plaintiffs’ mother Narasamma and the father of the defendants by name Kondireddy Bhaskara Rao. Said dispute was settled by the elders namely (1) Sri Parimi Ganga Raju; (2) Sri Bhogaraju Satyanarayana; (3) Sri Dube Sitarama Prasad @ Teekala Ramu and (4) Sri Kondireddy Venkata Raju. According to the said settlement / compromise, the father of the defendants 1 and 2 namely Kondireddy Bhaskara Rao had to arrange a puntha passage from out of his family properties from * VGKR, J, SA_61_2018 western side to southern side through his lands . egress of the plaintiffs’ lands and that the for ingress and mother of the plaintiffs has to relinquish her 1/3'" right in the tank. Both the father of defendants 1 and 2 and the mother of plaintiffs agreed for the said compromise before the elders and got executed a 'Khararunama' to that effect. According to the said settlement, the father of the defendants 1 and 2 has arranged a puntha passage to the plaintiffs’ land for passage of cattle, carls etc., with a width of 8 yards, with his expenses. Subsequently, the said Parimi Ganga Raju got formed a road in place of the said puntha free own passage. The defendants left their purpose of forming the said own land of about Ac.0-70 cents for the road. (b) Subsequently on 01.10.1984, the defendants got partitioned their family properties, in which the 1*' defendant got Ac.3.30 R.S.No.14/1 and 14/2 and 2"" defendant cents in got the above said Ac.3.30 cents of land. The said land was originally purchased by the father of defendants 1 and 2 namely Bhaskara Rao under a registered sale deed dated 15.12.1958. The total extent of land covered i said sale deed is Ac.9.50 cents i.e. cultivable land of Ac.6.00 and tank land of Ac.3.50 cents. under the cents The defendants even during the existence of their joint family itself, they allotted some of their own lands and tank land for the purpose of puntha passage and got formed the road with their their ingress and egress. There partition of their properties. own expenses to the plaintiffs’ lands for was no tank at all by the time of The said fact was also known to the plaintiffs. Now. due to hike in the market values of the immovable properties, the plaintiffs with an eyesore and with a malafide , filed this false suit The defendants have intention to grab the property of the defendants, by suppressing the real facts of the case. been in their exclusive peaceful possession and enjoyment of the 5 VGKR, J, SA 61 2018 a schedule property from 01.10.1984 onwards in their own right and title. Prior to that, the defendants have enjoyed the said lands along with other properties as joint family properties. The defendants have been in their adverse possession and enjoyment of the land for about more than 35 years. The plaintiffs, their mother or father never questioned the possession and enjoyment of the defendants in respect of the schedule property and they never obstructed the defendants 1 and 2 or their father from cultivating the said land. The said tank is not the Government tank and it is a private tank. There was no water storage in the said tank at any time. The plaintiffs have been cultivating their lands by installing bore-well in their lands. (c) Out of the above said Ac.9.50 cents of land purchased by the father of defendants 1 and 2 Bhaskara Rao under registered sale deed dated 15.12.1958, at present the 2 possession of Ac.3.30 cents in R.S.No.14/2 and 4**^ defendant has been in possession of Ac.2.00 cents in R.S.No.14/1 and the plaintiffs have been in possession of Ac.2.00 cents. Thus, in total Ac.8.60 cents of land only is in existence at present out of said Ac.9.50 cents. Some extent of land in the remaining extent of Ac.0.90 cents is in encroachment of neighbouring ryots and the remaining land was used to formation of western side passage road etc. The plaintiffs have lost their 1/3'"^ right over the tank land even during the lifetime of their mother Narasamma only. The defendants have been in possession and enjoyment of the said land for the past more than 35 years till date. The plaintiffs have no right or title whatsoever to question the said lawful possession of the defendants at present. Hence sought for dismissal of the suit. nd defendant has been in 8. On the basis of above pleadings, the learned trial Judge, framed the following issues for trial: VGKR, J. SA_61_2018 (1) Whether the court fees paid by the plaintiffs are correct? (2) Whether the plaintiffs are entitled for declaration of their right and title over the plaint ‘A’ schedule property? (3) VVhether the plaintiffs are entitled for consequential possession of plaint ‘A’ schedule property? (4) Whether the plaintiffs are entitled for future profits? (5) Whether the plaintiffs are entitled for partition of plaint ‘B’ schedule property as alternative relief and for separate possession? (6) Whether plaintiffs are entitled for future profits as prayed for? (7) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.Ws.1 to 4 were examined, out of which, evidence of P.W.3 was eschewed, and Exs.A.1 to A. 13 were marked. On behalf of the defendants, D.Ws.1 to 6 were examined and Exs.B.1 to B.5 were marked. 10. The learned Junior Civil Judge, Jangareddigudem, after conclusion of trial, on hearing the arguments of both sides and and documentary evidence on consideration of oral on record, dismissed the suit. Felt aggrieved thereby, the plaintiffs filed the appeal suit in A.S.No.4 of 2016 , on the file of learned IX Additional District Judge, West Godavari at Kovvur, wherein, the following points came up for consideration; 1) Whether the father of plaintiffs by name Chandram acquired right in the tank to an extent of Ac.1.16 1/3 cents under the registered sale deed dt.02.08.1961 executed by father of defendants 1 and 2 his behalf and his minor sons? 2) Whether mother of plaintiffs relinquished their share in the tank in favour of defendants and their father Bhaskara Rao as pleaded bv defendants? ^ 3) Whether the defendants and their father partitioned their properties in the year 1984 and in that partition, defendants 1 and 2 got Ac.3.30 cents each including the plaint ‘B’ schedule property? on 7 VGKR, J. SA_61 2018 4) Whether the rights of plaintiffs over plaint ‘B’ schedule property were extinguished by efflux of time? 5) Whether plaintiffs are entitled for declaration of their title over plaint ‘A’ schedule property and possession thereof with mesne profits as prayed for? if not 6) Whether plaintiffs are entitled for partition of plaint ‘B’ schedule property into three equal shares and for allotment of one such share for them with separate possession thereof and mesne profits? 7) Whether there are grounds to interfere with findings of trial Court? 8) What is the result? 11. The learned IX Additional District Judge, West Godavari at Kovvur i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the plaintiffs and dismissed the appeal filed' by the plaintiffs. Felt aggrieved of the same, the plaintiffs in O.S.No.54 of 2010 filed the present second appeal before this Court. 12. On hearing both side counsels at the time of admission of the appeal, on 19.01.2018, the Composite High Court framed the following substantial questions of law: (1) Whether Courts below are right in relying on an unregistered partition deed i.e. Ex.B.3 in concluding that the B schedule property was divided among DW1 and DW3? (2) Whether the Courts below are right in discarding Ex.AI, A2, A6, A7, A8 and A9 revenue records in establishing the factum of possession? (3) Whether the Courts below are right in allowing the claim of the respondents / defendants on a sole ground of adverse possession without there being an issue to that effect? 13. Heard Sri G.Ramachandra Reddy, learned counsel for the appellants and Sri M.Radha Krishna, learned counsel representing Sri E.V.V.S.Ravi Kumar, learned counsel for the respondents. 8 VGKR, J. SA 61 2018 14. In a second appeal under Section 100 of CPC the High Court cannot substantiate its own opinion for that of First Appellate Court unless the Court finds that the conclusions drawn by both the Courts are erroneous being, (i) contrary to the mandatory provisions of the applicable law or (ii) contrary to the law as pronounced by the Apex Court or (iii) based on inadmissible or no evidence. 15. The jurisdiction of the High Court in second appeal under Section 100 of CPC is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by both the Courts below and if the First Appellate Court has exercises in its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in a second appeal. 16. Learned counsel for the appellants would contend that both the Courts below are not in right relying on an unregistered partition deed i.e. Ex.B.3 in concluding that the ‘B’ schedule property was divided among the D.W.1 and D.W.3. In the case on hand in the plaint itself, it was recited about the partition happened in between the defendants in the year 1984 itself. In cross-examination in the evidence, the plaintiff No.1 as P.W.1, admits that the plaint schedule property was partitioned by the defendants in the year 1984 and in that partition, the suit schedule property fell to the share of 1®* and 2 P.W.2, a third party to the suit nd defendants and each got Ac.3.30 cents, proceedings, also admitted about the partition of joint family properties in the St defendant and his family members. year 1984 in between the 1 Furthermore, the own admission of the witness of the plaintiffs i.e. P.W.2 is that defendants 1 and 2 after partition of their properties in the year 1984, they used to cultivate their respective shares of the lands since 1984. Furthermore, P.W.2 admitted about formation of road in the year 1976. 9 VGKR, J. SA'61 2018 Another admission made by P.W.2 is that except the road, which was formed in the year 1976, there is no other way or road to the plaintiffs to reach their P.W.2 further admits that after formation of the above road, the defendants and their father partitioned their properties in the year 1984 and the plaint schedule property fell to the share of defendants 1 and 2 only in their family partition. Another crucial admission made by him is that at the time of partition of properties among the defendants and their father, no tank is in existence. lands. 17. The plaintiffs filed chief affidavit of one Pakiram Kittayya as P.W.3, but he did not appear for cross-examination. Hence, his chief affidavit is eschewed. Though P.W.4 stated in his evidence affidavit that the tank was converted into agricultural land in the year 2009, he admits in his evidence in cross-examination itself that he does not know who filed the suit against whom and he also pleaded ignorance about the children of one Kondireddy Bhaskara Rao. He further admits that the plaintiffs 1 and 2 having bore-well and they are doing cultivation by utilizing the said bore-well water and that the defendants are having two bore-wells and they are doing their cultivation by using the water from their bore-wells. Another important admission made by him is that at the age of discretion, the plaintiffs and defendants doing their cultivation by using the water from their respective bore-wells. He further admits that he has no documentary evidence to show that there was a tank as alleged by him in his evidence affidavit. Therefore, his evidence is no way useful to the plaintiffs to prove their right, title and possession in thd plaint schedule property. 18. The plaintiffs would contend that there is no registered partition in between the defendants. The recitals in Ex.B.3 clearly goes to show that Ex.B.3 is a partition list evidencing the earlier oral partition which was happened one year ago prior to Ex.B.3. Therefore, it can be looked into to prove the factum of earlier partition. The material on record further goes to 10 VGKR, J. show that since 1984 onwards, the defendants B schedule property as that of their property to the knowledge of including the plaintiffs and the plaintiffs themselves allowed a period of more than 25 the plaintiff and third party to the have been enjoying the plaint one and all the defendants for years to enjoy the same under a document. In fact, suit proceedings i.e. witness of the plaintiffs P,W.2 admitted about the earlier defendants and partition happened in between the possession of the so also they reiterated about the defendants in the plaint schedule property since 1984 onwards. It is relevant to say that the plaintiffs approached the civil Court for seeking the relief of declaration of title and possession over the property, subsequent to 26 years from the date of possession of the defendants as admitted by the plaintiffs and the witness of the plaintiffs, defendant alienated the property to the third In fact, after partition of the properties, the 1 parties in the year 1994 and from 1994 to 2009, no single cause of action is mentioned in the plaint itself. Both the Courts below accepted Ex.B.3, in fact the partition list Ex.B.3 to the plaintiffs in the year 1984. was known 19. It is the specific case of the plaintiffs that the defendants encroached Ac. 1.02 cents of tank land in the month of May, 2009. In fact, the own evidence of the plaintiffs itself negatived the aforesaid contention of the plaintiffs that defendants 1 to 4 colluded together and highhandedly took possession of Ac. 1.02 cents. As per the own admission of the P.W. as per the own admissions of the plaintiffs’ witness P.W.2, the defendants are in possession and enjoyment over the plaint schedule 1 and also property since more . Furthermore, than 25 years within the knowledge of all including the plaintiffs as stated supra, as per the own admissions of the witness of the plaintiffs i.e. P.W.2, a road was formed in the year 1976 itself and except the said road, there is no other way or road to the plaintiffs to reach their lands and after formation of the aforesaid road, the defendants and their father partitioned among the their properties in the year 1984 and at the time of partition defendants and their father, no tank is in existence. Therefore, it is quite clear 11 VGKR, J. SA_61 2018 that the plaintiffs approached the civil Court by suppressing the real facts and the plaint schedule property is not in existence as on ground. 20. The evidence on record further proves that after partition of the properties in the year 1984, the defendant sold Ac. 1.80 cents to defendant and Ac.1.50 cents to 4*^ defendant from out of his share way back more than 15 years ago prior to filing of the suit and the 3'^ defendant also later sold Ac.0-50 cents to the 4*^ defendant. 21. Learned counsel for the appellants would contend that both the Courts below discarded Exs.A.1 and A.2 pattadar passbooks and Exs.A.6 to A.9 in establishing the factum of possession. As rightly said by the learned first appellate Judge that the revenue record including Adangals and tax payment receipts are not a proof of title and possession of the property. There is no whisper in the plaint itself that when the tank lands are converted into agricultural lands. But, as seen from the evidence of P.W.2, at the time of partition of properties between the defendants 1 and 2 in the year 1984, the tank is not in existence and the road was formed way back in the year 1976 i.e. eight years prior to the date of partition by the defendants. As per the own statement of P.W.4, both parties are cultivating their respective lands by using their respective bore-well water. It is well settled that the revenue entries not the conclusive proof of title. There is an ample material on record to show that the plaintiffs lost their 1/3'^'^ right in the tank lands prior to partition of the properties i.e. prior to 1984 and they approached the civil Court after lapse of more than 25 years and the plaintiffs have not taken any steps to get their 1/3'^'^ right in the tank and allowed the defendants for a period of more than 25 years to enjoy the same as if their property under Ex.B.3 and that the joint right over the plaint ‘B’ schedule property was extinguished. are 22. Learned counsel for the appellants placed a reliance of Full Bench Judgment of Hon’ble Apex Court in N.Padmamma and others v. 12 VGKR, J/ SA_61_2018 S.Ramakrishna Reddy and others\ The Full Bench of Hon’ble Apex Court in the said case law held at para No. 10 as follows: It is fairly well-settled principle of law that the possession of a co- ■ heir is in law treated as possession of all the co-heirs. If one co-heir has come in possession of the properties, it is presumed to be on the basis of a joint title. A co-heir in possession cannot render its possession adverse to other co-heirs not in possession, merely by any secret hostile animus on his own part, in derogation of the title of his other co-heirs. Ouster of the other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other.” In the case on hand, the plaintiffs and defendants are not come under the purview of co-heir or co-sharer. There is no dispute that the possession of one co-heir is considered in law as possession of all co-heirs. Admittedly, in the case on hand, both the parties to the suit are not come under the purview of either co-heir or co-sharer. 23. Learned counsel for the appellants placed a reliance of Civil Appeal No.6333 of 2013 in N.Thajudeen v. Tamil Nadu Khadi and Village Industries Board, wherein the Hon’ble Apex Court held as follows: “23. In C. Mohammad Yunus vs. Syed Unnissa And Ors (AIR 1961 SG 808) it has been laid down that in a suit for declaration with a further relief, the limitation would be governed by the Article governing the suit for such further relief. In fact, a suit for a declaration of title to immovable property would not be barred so long as the right to such a property continues and subsists. When such right continues to subsist, the relief for declaration would be a continuing right and there would be no limitation for such a suit. The principle is that the suit for a declaration for a right cannot be held to be barred so long as Right to Property subsist. 24. Even otherwise, though the limitation for filing a suit for declaration of title is three years as per Article 58 of the Schedule to the Limitation Act but for recovery of possession based upon title, the limitation is 12 years from the date the possession of the defendant becomes adverse in terms of Article 65 of the Schedule to the Limitation Act. Therefore, suit for the relief of possession was not actually barred and as such the court of first instance could not have dismissed the entire suit as barred by time.” ^ (2015) 1 Supreme Court Cases 417 13 VGKR. J, SA_61 2018 In the case on hand, the own evidence of the plaintiff No.1 and a witness of the plaintiffs i.e. P.W.2 clinchingly establishes that the defendants are in possession of the plaint schedule property for more than 25 years prior to filing of the suit and the plaintiffs lost their 1/3^^^ right in the tank land prior to partition of the properties by the defendants i.e. prior to 1984 and they approached the civil Court after lapse of more than 25 years and the plaintiffs themselves permitted the defendants to be in possession of the plaint schedule property for more than 25 years prior to filing of suit without raising any objection and permitted the defendants to enjoy the same as if their property under Ex.B.3 document and therefore, the joint right over the plaint ‘B’ schedule property was extinguished. Furthermore, the plaintiffs or their father or mother never questioned the possession and enjoyment of the defendants for more than 25 years and remain silent and approached the civil Court in the year 2010 for seeking the relief of declaration and recovery of possession. As noticed supra, the plaintiffs are also not entitled alternative relief of 1/3'^^ share of partition in the plaint ‘B’ schedule property, because, the plaintiffs and defendants are not come under the purview of co-heir or co sharer. It is not the case of the appellants that the plaintiffs and defendants are co-heirs. * 24. Learned counsel for the appellants would contend that both the Courts below came to wrong conclusion in allowing the claim of the defendants on the sole ground of adverse possession without there being issue to that effect. Admittedly, the present suit is instituted by the plaintiffs for seeking the relief of declaration of title and recovery of possession of the plaint schedule property. Therefore, the entire burden is on the plaintiffs to prove their title and right in the plaint schedule property. It is not proper to decide the title of the defendants in a suit filed by the plaintiffs for seeking the relief of declaration of title of the plaintiffs. The legal position in this regard is no more res Integra and the same has been well settled by the Apex Court in Union of any 14 VGKR, J. SA 61 2018 India and others v. Vasavi Cooperative Housing Society Limited and others^, wherein the Apex Court held as follows: “15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for ' granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. 17. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira [AIR 1959 SC 31] observed that: (AIR p. 37, para 20) “20. ... in a suit [for declaration] if the plaintiffs are to succeed they must do so on the strength of their own title.” 18. In Nagar Palika, Jind v. Jagat Singh [(1995) 3 SCC 426] this Court held as under; (SCC p. 427c) “The onus to prove title to the property in question was on the plaintiff-respondent. ... In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit.” In the aforesaid case law, the Apex Court clearly held that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. In the aforesaid case law, the Apex Court further held that even if the title set up by the defendants is found against them, in the absence of establishment of the plaintiffs own title, the plaintiff must be non-suited. In the case on hand, the plaintiffs lost their right for more than 25 years prior to institution of the suit in a civil Court for seeking Therefore, the suit for the relief of declaration of title and possession, declaration of title and possession is hopelessly barred by law of limitation. As stated supra, the plaintiffs are also not entitled for alternative relief of partition as prayed for. ^ (2014) 2 Supreme Court Cases 269 15 VGKR, J. SA 61 2018 25. For the aforesaid reasons, I am of the considered view that the learned First Appellate Judge, on re-appreciation of entire evidence on record, rightly dismissed the first appeal filed by the plaintiffs. 26. In the result, the Second Appeal is dismissed by confirming the decree and judgment passed by both the Courts below. Considering the facts and circumstances of the case, each party do bear their own costs in the Second Appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed. Sd/- V DIWAKAR DEPUTY REGISTRAR SECTION OFFICER 1. The Civif Judge, (Junior Division), Jangareddigudem, West Godavari District, (with records if any) 2. The IX Additional District Judge, West Godavari, Kovvur. (with records if any) 3. One CC to Sri. G. Ramachandra Reddy, Advocate [OPUC] 4. One CC to Sri. E VV S Ravi Kumar, Advocate [OPUC] 5. The Section Officer V.R. Section, Fligh Court of Andhra Pradesh, at Amaravathi. 6. Two C.D Copies. //TRUE COPY// To Ssl sree HIGH COURT DATED:01/09/2025 JUDGMENT + DECREE SA.N0.61 OF 2018 19 SEP 2025 O Sectiofu^'^^ ^-^SsfiaiiaiSS^ DISMISSING THE SECOND APPEAL