[2009] 7 S.C.R. 86
A
KATLA MUTHYAL NAIDU
v
KOTHAPALLE VENKATAPPA NAIDU AND ORS.
Civil Appeal No. 2860 of 2009
B
APRIL 27, 2009
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
Code of Civil Procedure, 1908: s. 100 - Second appeal
- High court dismissed second appeal holding there was no
c specific plea of adverse possession in the plaint- Bare reading
of averments shows this to be factually incorrect - Matter
remitted to High Court for consideration afresh.
In the present appeal, the appellant is challenging
.. ..
D the order of High Court whereby the second appeal was
..
dismissed primarily on the ground that there was no place
of adverse possession anywhere in the plaint.
Allowing the appeal and remitting the matter to the
High Court for consideration afresh, the Court
E
HELD: 1. A bare reading of the averments shows that
the conclusions of the High Court that there are no specific
pleas relating to adverse po.ssession are factually
incorrect. [Para 4] [87-H; 88-A]
F
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2860
of 2009
From the Judgement and Order dated 18.02.2005 of the
High Court of Judicature, Andhra Pradesh at Hyderabad in
Second Appeal No. 1546 of 2004
G
P.S. Narasimha, A.V. Rao, Venkteswara Rao Anumolu,
Prabhakar Parnam, with him for the Appellant(s).
~
K. V. Vishwanathan, P.B. Suresh, Vipin Nair, Temple Law
Firm, for the Respondent.
H
86
KATLA MUTHYAL NAIDU V.
87
KOTHAPALLE VENKATAPPA NAIDU AND ORS.
"
,/
The Judgement of the Court was delivered by
A
DR. ARIJIT PASAYAT, J.
Leave granted.
The controversy in the present appeal lies within a narrow B
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. c
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.
~
Learned counsel for the appellant brought to our notice D
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 rnore than 60 years, plaintiff and his family E
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.
F
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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 G
submits that as stated supra to the knowledge of the
1--
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
H
88
SUPREME COURT REPORTS
[2009] 7 S.C.R.
A of the High Court that there are no specific pleas relating to
\o'
adverse possession are factually incorrect. Therefore, we set
aside the impugned judgment of the High Court and remit the
matter to it for fresh consideration in accordance with law.
B
An application for intervention has been filed by one Chekru
Govinddaswamy (I.A No. 3) seeking impleadment on the ground
st
that he has purchased property on 21 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.
c
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.
D
The appeal is allowed to the aforesaid extent with no order
"
as to costs.
D.G.
Appeal allowed.
•
Lex