1. Heard Sri Krishna Reddy Putta, learned counsel for the appellant and Sri Ashok Reddy Kanathala, learned counsel for the respondents and perused the record.

2. This appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (for short ‘CPC’), assails the Judgment and Decree dated 09.12.2015 passed by the learned II Additional Chief Judge, City Civil Court, Hyderabad, in O.S.No.805 of 2011. By the impugned judgment and decree, the trial Court decreed the suit instituted by the respondents/plaintiffs for declaration of title, recovery of possession of the suit schedule property and mesne profits.

3. The respondents/plaintiffs instituted O.S.No.805 of 2011 on the file of the learned II Additional Chief Judge, City Civil Court, Hyderabad, seeking a declaration that the 1st respondent/plaintiff is the absolute owner of the suit schedule property bearing Municipal No.2-2-1137/5/6/1/A, admeasuring 60 Sq Yds, situated at New Nallakunta, Hyderabad, recovery of possession thereof from the appellant/defendant, and payment of past and future mesne profits, together with consequential reliefs.

4. The appellant herein was the defendant, and the respondents herein were the plaintiffs before the learned trial Court.

Plaint averments (Respondents/Plaintiffs’ case)

5. The specific case of the respondents/plaintiffs as pleaded in the plaint as follows:

               i. The 2nd plaintiff, Sri P.Narasimhaiah, purchased the suit schedule property, bearing Municipal No.2-2-1137/5/6/1/A, admeasuring 60 Sq Yds, situated at New Nallakunta, Hyderabad, in the name of his wife, the 1st plaintiff, under a registered Sale Deed dated 09.07.2002 (Ex.A-4), executed by Smt. Kousalya, the General Power of Attorney (GPA) holder of the original owner, Smt.S.Mallamma. The respondents/plaintiffs thereafter came into possession and enjoyment of the suit schedule property and constructed two rooms thereon.

               ii. Subsequent to the purchase, the suit schedule property was mutated in the name of the 1st plaintiff in the records of the Municipal Corporation of Hyderabad, and the respondents/plaintiffs also obtained a ration card reflecting the said address. The suit schedule property was being utilized for carrying on their catering business and for preparation of catering food.

               iii. According to the respondents/plaintiffs, during August, 2003, when their family had gone to Pattiseema Village, West Godavari District, in connection with Godavari Pushkaralu, the appellant/defendant, taking advantage of their absence, instituted O.S. No.4870 of 2003 on the file of the learned XIX Junior Civil Judge, City Civil Court, Hyderabad, seeking perpetual injunction by setting up a claim of adverse possession. It is their case that the appellant/defendant obtained an ex-parte ad-interim injunction and unlawfully trespassed into the suit schedule property during their absence.

               iv. Respondents/plaintiffs successfully contested the said injunction proceedings, whereupon the injunction application came to be dismissed. The appellant's challenge thereto by way of C.M.A.No.313 of 2004 and C.R.P.No.447 of 2004 also failed. Thereafter, upon full-fledged trial, O.S.No.4870 of 2003 was dismissed on 30.06.2008, and the judgment and decree therein were affirmed in A.S.No.218 of 2008 by judgment dated 18.01.2011. Notwithstanding the dismissal of the earlier proceedings, the appellant/defendant continued to remain in unauthorized occupation of the suit schedule property.

               v. Aggrieved thereby, the respondents/plaintiffs instituted the present suit in O.S.No.805 of 2011 seeking a declaration that the 1st plaintiff is the absolute owner of the suit schedule property, recovery of possession thereof from the appellant/defendant, and payment of past and future mesne profits, together with consequential reliefs.

Written statement (Appellant/Defendant’s case)

6. The appellant/defendant, by filing a written statement, contended as follows:

               i. That S. Mallamma was the absolute owner of a larger property bearing H.No.2-2-1137/5/6/1, admeasuring 232 Sq Yds. It is appellant’s case that his father, Y. Narsimha (DW-2), was a tenant in one portion of the said property. In the year 1986, S. Mallamma sold the eastern portion admeasuring 85 Sq Yds to one P. Narsimha Reddy, whereupon Y. Narsimha shifted to the remaining western portion.

               ii. According to the appellant, his father also occupied an adjacent open land admeasuring 77 Sq Yds, constructed two rooms thereon, and subsequently entered into a notarized agreement of sale dated 07.09.1988 with S.Mallamma in respect of the remaining 135 Sq Yds after paying the entire sale consideration.

               iii. The appellant further asserts that, after the sale of 150 Sq Yds in favour of R. Govind in 1993, appellant and his father continued in open, continuous, and uninterrupted possession of the remaining 74 Sq Yds, of which the suit schedule property forms a part, and thereby perfected their title by adverse possession. It is further pleaded that, under an oral partition effected in the year 1996, the said property fell to the appellant's share and that he has since been in possession thereof as its absolute owner.

               iv. The appellant also disputes the validity of the sale deed (Ex.A-4) executed in favour of the 1st respondent/1st plaintiff, contending that it is a sham and nominal document. Appellant further alleges that the GPA purportedly executed by S.Mallamma in favour of Kausalya is fabricated and that S.Mallamma had no subsisting right, title, or interest to convey, having already alienated the entirety of her property.

7. Upon consideration of the pleadings, and appreciation of the entire oral and documentary evidence available on record and upon hearing the respective submissions of the parties, the trial Court, by Judgment and Decree dated 09.12.2015, decreed the suit in favour of the respondents/plaintiffs declaring the 1st respondent/plaintiff as the absolute owner of the suit schedule property, directed the appellant/defendant to deliver vacant possession thereof within one month, and further held the appellant/defendant liable to pay past mesne profits of Rs.1,08,000/- and future mesne profits at the rate of Rs.3,000/- per month from the date of the suit till delivery of possession, together with interest at 6% per annum on both the past and future mesne profits until realization.

8. Aggrieved thereby, the appellant/defendant has preferred the present appeal.

Submissions on behalf of the Appellant (Defendant)

9. The learned counsel appearing for the appellant/defendant assailed the impugned judgment and decree and advanced the following submissions:

               i. That the trial Court committed an error in rejecting the plea of adverse possession. It was submitted that the father of the appellant/defendant had been in possession of the larger property since the year 1971 as a tenant under S.Mallamma and, after occupying the adjacent open land in the year 1986, his possession became open, continuous, uninterrupted and hostile to the true owner. Therefore, it is contended that the appellant/defendant and his father had perfected their title to the suit schedule property by way of adverse possession upon completion of the statutory period.

               ii. That the registered Sale Deed dated 09.07.2002 (Ex.A-4) executed in favour of the 1st respondent/plaintiff does not confer any valid title, as S.Mallamma had neither title nor possession over the suit schedule property at the relevant point of time, having already alienated her rights therein. It was further argued that the GPA alleged to have been executed by S. Mallamma in favour of Smt. Kousalya is a fabricated document and, consequently, Ex.A-4 is a sham and nominal document incapable of conveying any right, title or interest in favour of the respondents/plaintiffs.

               iii. Reliance was placed upon Ex.B-2, the registered Sale Deed dated 18.01.1993 executed jointly by S.Mallamma and the father of the appellant/defendant in favour of R.Govind and submitted that the recitals contained therein unequivocally acknowledge the possession of the appellant's father. It was argued that his father was impleaded as one of the vendors under the said document only to obviate future disputes and litigation, which sufficiently establishes the appellant's claim over the suit schedule property.

               iv. That the trial Court erred in invoking the principle of res judicata by placing reliance upon the judgment rendered in O.S.No.4870 of 2003, as the said suit was one for perpetual injunction and not a suit for declaration of title.

               v. That the trial Court committed a further error in awarding Advocate's Fee of Rs.1,50,000/-, which is wholly arbitrary, exorbitant and unsupported by law, thereby warranting interference by this Court.

Submissions on behalf of the Respondents (Plaintiffs)

10. The learned counsel appearing for the respondents/plaintiffs supported the impugned judgment and decree and advanced the following submissions:

               i. That the respondents/plaintiffs have established their lawful title over the suit schedule property by virtue of the registered Sale Deed dated 09.07.2002 (Ex.A-4), executed by Kousalya, the GPA holder of S. Mallamma. It was submitted that the title of S. Mallamma stood duly established under Ex.A-5, and having acquired valid title thereto, she was fully competent to alienate the suit schedule property through her GPA holder. Accordingly, Ex.A-4 constitutes a valid document conveying lawful title in favour of the 1st respondent/plaintiff.

               ii. That the appellant/defendant has miserably failed to establish his plea of adverse possession. It was argued that the father of the appellant/defendant admittedly entered into possession as a tenant under S.Mallamma and, therefore, his possession was permissive in nature. It was further submitted that the appellant's own pleadings and evidence disclose that the initial possession was that of a tenant and not that of an adverse possessor.

               iii. That the appellant/defendant has failed to produce any documentary evidence whatsoever to establish either his title or lawful possession over the suit schedule property. No title deed, house tax receipt, electricity bill or any other public document evidencing possession has been placed on record by the appellant/defendant. On the contrary, the respondents/plaintiffs have produced documentary evidence, including the ration card (Ex.A-7) and property tax receipts (Ex.A-8), which clearly establish that the suit schedule property stood mutated in the name of the 1st respondent/plaintiff and that the respondents/plaintiffs were in lawful possession thereof.

               iv. That the judgments rendered in O.S.No.4870 of 2003 and A.S.No.218 of 2008, wherein the plea of adverse possession raised by the appellant/defendant was categorically negatived, have attained finality and operate as res judicata in respect of the issues directly and substantially in controversy between the parties. It was, therefore, submitted that the appellant/defendant is precluded from reagitating the very same issues in the present proceedings.

               v. Reliance was placed upon sale deed (Ex.B-2) dated 18.01.1993 and submitted that the recitals contained therein unequivocally disclose that S.Mallamma had become the owner of the adjoining extent of 77 Sq Yds by adverse possession and that the suit schedule property originally belonged to her. According to the learned counsel, Ex.B-2 sale deed itself constitutes a clear admission on the part of the appellant/defendant, thereby completely discrediting his plea of title over the suit schedule property.

               vi. That during the course of cross-examination, appellant/defendant admitted that he was a tenant under S. Mallamma and further acknowledged the recitals contained in Ex.B-2 sale deed to the effect that S.Mallamma had become the owner of 309 Sq Yds. Appellant/defendant also admitted that he was unaware as to whether S. Mallamma had executed a GPA in favour of Kousalya in respect of the remaining extent of 74 Sq Yds. Therefore, it was contended that these admissions completely demolish the appellant's claim of ownership and adverse possession.

11. I have taken note of the respective submissions made and perused the material on record.

Consideration by this Court

12. The plaintiffs trace their title to the suit schedule property through the registered sale deed dated 09.07.2002 (Ex.A-4). The evidence on record discloses that the original owner, S. Mallamma, acquired title to the larger extent of property under the registered sale deed dated 17.02.1971 (Ex.A-5). Subsequently, she executed an Irrevocable GPA dated 30.07.1993 (Ex.A-12) in favour of Kausalya, who, acting in her capacity as GPA holder, executed Ex.A-4 in favour of the 1st plaintiff in respect of the suit schedule property. In the absence of any declaration setting aside the said documents, Ex.A-4 constitutes the source of the plaintiffs' title.

13. The appellant challenges Ex.A-4 principally on two grounds, namely, that S. Mallamma had no subsisting title to convey, having

already alienated the property, and that the GPA in favour of Kausalya is a fabricated document. However, these contentions are not supported by the material available on record.

14. It is to be noted that the registered sale deed dated 18.01.1993 (Ex.B-2) executed by S. Mallamma and Y. Narsimha (DW-2) in favour of R. Govind, assumes significance. The recitals of Ex.B-2 insofar as are relevant are extracted hereunder:

               “Whereas the ‘Vendor No.1’ subsequently occupied the adjacent land to the extent of 77 Square Yards and thus the ‘Vendor No.1’ became the owner by virtue of adverse possession to the extent of 309 square yards”

15. Further, the allegation that the GPA (Ex.A-12), is fabricated remains a bare assertion. No independent proceedings have been instituted seeking cancellation of either the GPA or the consequential sale deed, nor has any evidence been adduced to establish forgery, impersonation or fraud. Mere allegations, unsupported by cogent evidence, are insufficient to dislodge the evidentiary value attached to registered instruments. Therefore, the trial Court was justified in accepting Ex.A-4 as a valid conveyance and in holding that the plaintiffs had established their title to the suit schedule property.

16. It is pertinent to note that the appellant claims title to the suit schedule property solely on the basis of adverse possession. It is well settled that a person asserting title by adverse possession must establish that his possession was open, continuous, uninterrupted, hostile to the true owner and continued for the statutory period. Such possession must be nec vi, nec clam, nec precario (not by force, not by stealth, and not by permission).

17. In the present case, the appellant has miserably failed to prove the following:

               i) The appellant's own case is that his father, Y. Narsimha (DW-2), after having acquired title to suit schedule property by way of adverse possession initially entered the property as a tenant under S.Mallamma. According to the appellant, DW-2 subsequently continued in possession pursuant to an agreement of sale. No convincing evidence has been adduced to establish the point of time at which such possession became hostile to the true owner or that the owner was unequivocally excluded from the enjoyment of the property.

               a. The Ex.B-2 records that S. Mallamma had acquired title over the adjacent extent of 77 Sq Yds by adverse possession and thereafter conveyed part of the property. DW-2, being an executant to the said document, cannot subsequently resile from its recitals while setting up a contrary plea.

               b. The admissions made by DW-2 during his cross-examination further weaken the appellant's case. DW-2 admitted the recital in Ex.B-2 regarding Mallamma having become owner of 309 Sq Yds and expressed ignorance regarding the execution of the GPA in favour of Kausalya.

               These admissions materially affect the appellant's plea that he and his father had perfected title by adverse possession.

               ii) Equally significant is the absence of any documentary evidence demonstrating continuous possession in the appellant's own right. No municipal tax receipts, house tax assessments or other contemporaneous records evidencing possession over the suit schedule property have been produced. On the contrary, the plaintiffs relied upon municipal records including the property tax receipt (Ex.A-8) and ration card (Ex.A-7) evidencing mutation in the name of the 1st plaintiff, which indicates that the plaintiffs’ were in the possession of the property. Thus, the trial Court rightly considered this circumstance while appreciating the plea of adverse possession.

               iii) The plea of adverse possession had earlier been raised by the appellant in O.S. No.4870 of 2003. The said suit was dismissed, and the finding was affirmed in A.S.No.218 of 2008. The trial Court has noticed that, in the earlier round of litigation, the competent Civil Courts negatived the appellant's claim of adverse possession and accepted the title claimed through S. Mallamma. Having regard to the issues directly adjudicated between the parties in the earlier proceedings, the trial Court rightly held that the findings therein operate as res judicata on the questions so decided and preclude the appellant from re-agitating the same plea in the present proceedings.

               In view of the above it is relevant to note that the appellant has failed to establish the essential ingredients necessary to sustain a plea of adverse possession. The finding recorded by the trial Court on this aspect is based on a proper appreciation of the oral and documentary evidence and warrants no interference.

18. It is apposite to note that the appellant has failed to establish any legal or factual infirmity in the judgment and decree passed by the trial Court. The plea of adverse possession is unsupported by satisfactory oral or documentary evidence and stands contradicted by the admissions of DW-2 as well as the recitals contained in Ex.B-2. Further, the appellant has not produced any contemporaneous record to substantiate his alleged continuous and hostile possession over the suit schedule property. On the contrary, the documentary evidence adduced by the plaintiffs supports their claim of title and possession.

19. The appellant has also questioned the decree insofar as it awards advocate's fee of Rs.1,50,000/- and costs in favour of the Plaintiffs. Having upheld the findings of the trial Court on the questions of title and recovery of possession, the consequential decree directing delivery of possession together with mesne profits cannot be said to suffer from any legal infirmity. The award of costs is a matter falling within the discretion of the Court. No material has been placed before this Curt to demonstrate that the exercise of such discretion was arbitrary, capricious or contrary to law. Merely because the advocate's fee awarded is substantial would not, by itself, constitute a ground to interfere with the decree in the absence of any demonstrable illegality or perversity.

Conclusion

For the foregoing discussion, this Court is of the considered view that the findings recorded by the trial Court are founded upon a proper appreciation of the pleadings, the evidence adduced by the parties, and the settled principles governing title, adverse possession and recovery of possession. This Court finds no perversity, illegality or jurisdictional error in the judgment and decree under appeal warranting interference by this Court.

20. Accordingly, this Appeal is dismissed. The judgment and decree dated 09.12.2015 in O.S.No.805 of 2011 passed by the learned II Additional Chief Judge, City Civil Court, Hyderabad is confirmed. The appellant/defendant is directed to vacate the suit schedule property, deliver vacant possession and shall pay the past and future mesne profits, as directed by the trial Court, to the respondents/plaintiffs within a period of three (03) months from the date of this judgment.

As a sequel, miscellaneous petitions, pending if any, stand closed. No costs.