1. The plaintiffs are the appellants against the confirming judgments dismissing the suit brought for declaration of title and eviction of the sole defendant-respondent from Survey Nos. 138 and 139 respectively measuring Acs. 3-01 guntas and Acs. 2-26 guntas in Bagh Amberpet, Sareheka Taluq Musheerabad, Hyderabad. The suit was brought on the pleading of the plaintiffs being the heirs of one Ameeruddin who, according to them, was the pattedar of the land and that after his death on 27th July, 1968, the plaintiffs had been mutated in respect of the land and Kami Izafa has been issued in their favour in 1969. Ameeruddin had sold from Survey No. 138 on 21-12-1962 by a registered sale deed Ex. B-2 an extent of 9,867 sq. yards to the defendant, and his brother Md. Shamsuddin Khan had sold on 29-5-1961 by a registered sale deed marked as Ex. B-1 12,500 sq. yards from Survey No. 139. The suit was filed to avoid the sales on the contention that the sales were void being hit by Section 47 of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (referred hereinafter as ‘the Act’) and that Ex. B-1 sale deed was also void as Shamsuddin Khan had no conveyable title in the land, the pattedar being Ameeruddin. Further, the pleadings of the plaintiffs-appellants were that the respondent fraudulently got mutation sanctioned in his favour in respect of the lands in 1978 and dispossessed the plaintiff's tenants from the suit land and changed the record without notice to them.

2. The suit was resisted by filing written statement stating that Ameeruddin was not the exclusive owner of the land and that the land had been inherited by both the brothers from the original owner, their father Bahadur Dil Jung and that they had partitioned the lands and sold the lands separately to the respondent. Defendant also otherwise contended to have perfected title in respect of the lands by adverse possession. During evidence, the defendant adopted a different stand of the land having been purchased by both the brothers through registered sale deed Ex. B-3 during their minority in 1325 Fasli (corresponding to 1915 A.D). The appellants challenged such stand as being in variation of the pleading and further that Ex. B-3 sale deed was for Acs 41-00 and did not show the Ex. B-1 and Ex. B-2 lands to be included therein, the boundaries of the land to be different and the disputed lands never to have been localised in course of the suit. The learned trial Court frame 7 issues and two additional issues as follows:

1. Whether the Late Md. Ameeruddin Khan was the sole owner and pattadar of the suit lands?

2. Whether the sale deed executed by Shamshuddin in favour of the defendant is null and void and unenforceable?

3. Whether the mutation sanction in the name of the defendant in 1978 without the consent of the plaintiffs is invalid and unenforceable?

4. Whether the mutation stands granted in the name of the defendant is time-barred and without jurisdiction of revenue Court?

5. Whether the suit land is non-agricultural land alleged by the defendant and what is the effect of it on mutation?

6. Whether there has been division by metes and bounds of the suit lands to the extent of portion of lands purchased by the defendants?

7. To what relief?

3. Additional Issues:

1. Whether the sale deed No. 3302 dated 21-12-1962 and 1681 dated 21-5-1962 pertaining to the suit lands are sham, bogus, null and void and unenforceable in law as that being alienated without permission under Sec. 47 of A.P Telangana Area Tenancy and Agricultural Lands Act, 1950.

2. Whether the defendant inserted Survey Numbers in the site plan of the suit lands while it was not put in the site plan of the registered sale deeds and thus, deceived by misrepresentation the revenue authorities in order to get the mutation sanctioned for the suit lands.

4. The learned trial Court substantially answered all the issues against the appellants except Issue No. 6 which was, whether the property had been divided by metes and bounds between the brothers, and dismissed the suit.

5. The appeal preferred was also dismissed with the learned single Judge upholding the findings of the learned trial Court.

6. Mr. N. Subba Reddy, the learned Counsel for the appellants, assails the judgments, submitting the sale by Shamsuddin to be without authority as he had no title to the land and the sale by Ameeruddin to be void in law because of the bar under Section 47 of the Act. He disputes the findings by the Courts below as regards the possession of the defendant as no issue was struck of the defendant having perfected his title of the land through adverse possession.

7. As the appellants raised the question of the sales in favour of the defendant to have been incompetent either being in violation of the statutory provision or being without legal title to sell the land, the moot question that falls for consideration is as to whether, if the sales are found to be void, the defendants have perfected their title by adverse possession. If title is found to have been become complete against the appellants through prescriptive possession, the suit is liable to fail on account of that alone even if sales are found to be defective. It is for such reason that we intend to discuss the question of adverse possession first before going into other questions. Before such question is tackled, it is necessary first to consider the objection raised by Mr. Reddy as to the absence of issue in that regard and of specific determination on the point by the Courts below. It is true that though the respondents raised the plea in the written statement of having perfected title by adverse possession, no specific issue was struck in that regard. Though ordinarily we would have been persuaded, because of such fact, to frame such an issue and remand it to the trial Court for finding on the same, yet we find that despite the absence of the issue, both the parties have freely gone into evidence in the matter being alive up to the position and the trial Court having addressed itself to the question of possession and to have held the defendant having been in possession of the land since his purchase and the plaintiffs to have lost their title to the defendant since the date of purchase through the sale deeds. The position of law is well settled that where parties adduce evidence in respect of a matter for which an issue has not been struck and both sides are well aware of the dispute which relates to the issue, the defect of non-framing of the issue is cured and there will be no inherent lack of jurisdiction in the Court to go into that question and decide that aspect of the matter. It was observed in Kali Prasad v. Bharat Coking Coal Ltd. (1) 1989 Supp (1) SCC 628 : AIR 1989 SC 1530, in para 18 thus:

It was, however, urged for the appellant that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both Courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well accepted principle”.

8. Exception is also taken by Mr. Reddy placing reliance on Mohd. Ibrahim v. Secretary to Govt. of India (2) 1996 (2) ALT 950 to which one of us (Lingaraja Rath, J.) was a party, that a pleading of adverse possession must be to the effect of possession having open and hostile to the real owner and evidence must be let in of possession with hostile animus. While the principle of law decided therein is unexceptionable, yet so far as the present case is concerned, we see the position of facts to be in inconsonance (sic. consonance) with the principle decided. The position is rather well settled that when the vendee is in possession of land in pursuance of void or illegal sale, the possession is adverse to the vendor from the date of the sale.

9. The law has been so since more than half a century, in Sheo Nath v. Tulsipat ram (3) AIR 1925 OUDH 385, considering the effect of a sale through unregistered sale deed which was invalid, the Court held that the sale having taken place as a matter of fact, it certainly gave a starting point for the adverse possession in the character of the purchaser. Similar view was expressed in Mahipal v. Sarjoo (4) AIR 1926 OUDH 141, that if the possession is acquired by a person under an invalid title and continues to remain in possession for more than 12 years, although the document relating to his title may be invalid for want of registration or any other ground, yet the possession having lasted for more than 12 years the title becomes an unassailable one. In Markanda Mahapatra v. Kameswar Rao (5) AIR (36) 1949 Patna 197 the Court observed that even an invalid transaction supported by possession for the statutory period confers the right purported to be created by the invalid transactions. The question being considered in Bharit v. Board of Revenue (6) AIR 1973 All. 201, the Court held:

“The possession of a transferee in the case of sale is not on behalf of the transferor, because the transferor has purported to part with his entire interest in the property. The transaction did not create or retain any privity between the parties, in such a situation, the transferee's possession could not in law, be on behalf of the transferor. The transferee remains in possession in his own claim based on the terms of the sale. If the document of sale in valid the transferee gets no title under it. His possession will not be referable to any legal title, it would be adverse to the transferor.”

10. The above decision was itself based on the decision of the Supreme Court in State Of West Bengal v. Dalhousie Institute Society (7) (1970) 3 SCC 802 : AIR 1970 SC 1778, in which the view expressed in Collector of Bombay v. Municipal Corpn. of City of Bombay (8) AIR 1951 SC 469, was reiterated saying “the above extract establishes that a person in such possession clearly acquires title by adverse possession.” In the more recent case Achal Reddy v. Ramakrishna Reddiar (9) (1990) 4 SCC 706 : AIR 1990 SC 553, the Apex Court held:

“The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is clear manifestation of the intention of the owner to divest himself of the right over the property.”

11. The position of law being thus, we proceed on the footing that even if the sales in favour of the respondent-defendant were void for any reason, yet if he was in possession of the properties in pursuance of the invalid sale deeds his possession would be ipso facto adverse to the appellants.

12. The question for determination would hence be as to whether the respondent was in possession of the properties in pursuance of the sale deeds. Both the trial Court as well as the learned single Judge have reached finding against the appellants on that count. That being so, we would only notice the broad aspects of the evidence led in that regard to see whether the findings could be said to be perverse or totally against the weight of evidence on record. The discussion on the question is available in the judgment of the trial Court under issue No. 3 which was “whether the mutation sanctioned in the name of the defendant in 1978 without the consent of the plaintiffs is invalid and unenforceable?” The learned Judge went into detailed examination of the exhibits on both sides as also the oral evidence led as regards possession. So far as the appellants are concerned, they examined P.Ws 1, 4 and 5 of which P.W 1 is the appellant No. 1. It was the case of the appellants that they were in possession of the suit lands till 1978 through their tenant Narayana Reddy who was examined as P.W 4. The appellants were forcibly dispossessed by the Respondent in 1978. P.W 4 stated of having cultivated the land for 16 years till four years ago when the respondent informed him of having got patta mutated in his favour. That was did believed since in none of the pahanis from 16 years prior to 1978 his name figured as a tenant of the land. Column No. 16 of the pahani specifically relates to the name of the cultivator. P.W 5, stated to be a servant of P.W 4, deposed that P.W 4 had cultivated the suit land for 15 years and left it four to five years ago. He was disbelieved by the trial Court as it was the statement of P.W 4 that Late Ameeruddin had sold away the lands on three sides to others who had built houses thereon and on the fourth side there was a road, and had further stated that he had sold those lands before he took the suit land on lease, i.e, before 1962. It was however the statement of P.W 5 that Ameeruddin had not sold any adjoining land till they left the suit land which was in 1978. The learned Judge hence held both P.Ws 4 and 5 as not genuine witnesses as to the possession of the land.

13. It is submitted by Mr. N. Subba Reddy that the evidence of D.W 1, i.e, of the respondent fares no better in ascertaining the fact of adverse possession since all that he stated was that he had put a boundary wall around the land five or six years before the date of deposition and had stated that the land was vacant land. It was the specific evidence of D.W 1 that he had been possessing the lands since the date of purchase. If his possession is so found on evidence, it has to be treated as adverse on the authority of the rulings referred earlier. Exs. A-15, A-16, A-17, A-18 and A-19 respectively relating to 1960-1961, 61-62, 62-63, 63-64 and 64-65 are pahanis of the lands filed by the appellants. Ex. A-24 is also a pahani of the year 1966-1967 filed by the appellants. Exs. B-12 to B-20 are pahanis relating to the years 1965-1966, 67-68, 71-72, 72-73, 73-74, 74-75, 75-76, 76-77 and 77-78 filed by the respondent. In all the pahanis filed by the respondent Column No. 16 shows the respondent to be the cultivator, Thus, almost continuously from 1965-1966 with exception of a few years in between for which pahanis have not been filed, the respondent was shown to be cultivating the land. Of course, the latter pahanis filed by the appellants-Exs. A-24, A-25 and A-26 relating to 1979-1980 and A-29 relating to 1981-1982 also show the respondents's name against Column No. 16. It appears from the record that the ‘B’ series pahanis have been admitted into evidence without any objection of the appellants. The effect of admission of documents without objection is their contents to be also admitted in evidence though that evidence is not conclusive. The authority on the question is P.C Purushothama Reddiar v. S. Perumalrespondent (10) (1972) 1 SCC 9 : AIR 1972 SC 608, wherein their Lordships observed thus:

“Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.”

14. Following the same, one of us (Lingaraja Rath, J.) had decided in Bhagyarathi Das v. Agadhu Charan Das (11) 62 (1986) CLT 298, of the contents to be also admitted into evidence. Thus, the entries of the pahanis would constitute evidence for proof of the factum of possession of the respondent as no contrary evidence has been led to nullify the effect of that evidence. In addition to such facts, the respondent also filed Exs. B-76 to B-82 which are the land revenue receipts for lands including S. Nos. 138 and 139 for the years 1969 to 1975. He also filed the demand notice for land revenue under Exs. B-84 and B-85 dated 10-6-1975 and 30-12-1975 respectively. Ex. B-86 is the land revenue receipt dt. 15-1-1976. Ex. B-11 is the order dated 4-6-1977 passed by the Land Revenue Tribunal accepting the declaration by the respondent showing the suit property in his holding. It was the statement of D.W 1 that he had not only purchased the suit land but also other land in S. No. 137 which are contiguous and had obtained permission from the Municipal Corporation of Hyderabad for construction of shed under Ex. B-63 and Ex. B-64 is the sanctioned plan. From all these facts, the learned IV Additional Judge, City Civil Court, Hyderabad reached the conclusion that the respondent was in possession of the land since the date of purchase and that the title of the appellants had stood extinguished.

15. An argument has been advanced on behalf of the appellants that the entries in pahanis showing the name of the cultivator could not be correct as column No. 23 relating to the name of the land shows the land to be ‘bagatu’ meaning garden land. The submission is that there could not be any cultivation in garden land. Section 2(1)(a) of the Act defines agriculture as also including horticulture or raising of crops, grass or garden produce. Hence, agriculture also includes horticulture and raising of garden produce. D.W 1 stated in his evidence that he had been raising vegetables on the land. We hence do not find any inconsistency between the entries in column No. 23 and column No. 16.

16. Though the learned single Judge has not specifically discussed the question of adverse possession, yet he concurred with all the findings reached by the trial Court. After careful analysis of the evidence, both oral and documentary, we do not find any irrationality in the finding justifying its reversion. We agree with the finding reached by the trial Court that the respondent had been in continuous possession of the suit land from the date of purchase and hence to have perfected title against the true owners by adverse possession.

17. While we reach such conclusion we have however also to advert to the submission urged on behalf of the appellants of the sales to have been invalid because the transfer of the land had not been made with the sanction of the competent authority as laid down under Section 47 of the Act. It has to be said at the outset that this submission having been given up before the learned single judge. It cannot be raised at this stage. It is however argued before us that since it is a question of law, the question can be raised also at this stage and that the concession was not legally sound. Section 47 of the Act, which has since been deleted on 18-3-1969, barred any permanent alienation or any other transfer of land unless it was made with the previous sanction of the Tahsildar. Admittedly, no such permission had been I taken when Exs. B-1 and B-2 were executed though Section 47 of the Act was then in force. The sales hence were apparently invalid. Section 50-B which was brought in by the same amendment provided for validation of the invalid sales on application to be made within the prescribed period to the Tahsildar for a certificate declaring the alienation or transfer to be valid. No such application had been made by the respondent for validation. We have hence to hold that the sales were invalid. Same conclusion was reached by a learned single Judge of this Court in respect of a similar sale in M. Seeta Devi v. M.R.O (12) 1990 (1) APLJ 219. An argument has been advanced by the learned Counsel for the respondent that where the intending purchaser has been put in possession in pursuance of a written contract of sale in terms of Sec. 53-A of the Transfer of Property Act at a time when Sec. 47 of the Act was in force, the validity or invalidity of the transaction is no more relevant after deletion of Sec. 47 of the Act. We do not propose to go into the question as it does not arise in the present case and since it is not the case that the respondent was put in possession of the land in pursuance of an executory contract and the sale deed to be executed later on. But, Exs. B-1 and B-2 were out and out sales with divestiture of rights, title and interest of the vendors putting the respondent in possession. Such sales without obtaining the permission of the Tahsildar were invalid.

18. Even though we reach such conclusion, yet as it has been held earlier that the respondent had perfected title by adverse possession, the effect of the litigation remains the same.

19. We hold this appeal to have no merit which is dismissed with costs.