KATLA MUTHYAL NAIDUversusKOTHAPALLE VENKATAPPA NAIDU AND ORS.

                           [2009] 7 S.C.R. 86


A                     KATLA MUTHYAL NAIDU
                                   v
         KOTHAPALLE VENKATAPPA NAIDU AND ORS.
               Civil Appeal No. 2860 of 2009
                           APRIL 27, 2009
B
           [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]
         CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2860
F
    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
           compass. The plaintiff filed a second appeal in terms of the        B
           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           c
           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.
      ~                                                                        D
                 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 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
                                    xxxxxxxxxxxxx
                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.
           An application for intervention has been filed by one Chekru
B 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.           •