JUDGMENT
L. Narasimha Reddy, J.
1. Defendants 1 and 3 in O.S. No. 42 of 1983 in the Court of Subordinate Judge, Bapatla, filed this second appeal, aggrieved by the judgment and decree passed by the Court of I Additional District Judge, Guntur, in A.S. No. 157 of 1988.
2. The 2nd appellant is the daughter of the 1st appellant. The 1st appellant and the 2nd respondent are sons of one Sri Subbaraya Sarma. Subbaraya Sarma had a brother, by name, Raghavaiah. The 1st respondent is the daughter of Raghavaiah and the 2nd respondent is said to have been given in adoption to him in the year 1947.
3. The 1st respondent filed the suit for the relief of declaration of title and perpetual injunction, or in the alternative for recovery of possession, in respect of the suit schedule property, admeasuring Acs. 1.03 cents. She pleaded that the suit property was held by
her father, later Raghavaiah, and after his death in the year 1949, the 2nd respondent, who was adopted by her father, treated the suit schedule property as his own, and gifted the same to his wife, through a document, dated 27-5-1982. According to her, the matter was settled among herself, her adopted brother – the 2nd respondent and the 1st appellant herein, through a settlement deed/list of partition, dated 13-12-1982, in which, the suit schedule property was allotted to her and the properties that are to be allotted to the 1st appellant were also mentioned in separate lists. She further contended that as required under the notes of partition, the wife of 2nd respondent has also executed a gift deed, dated 7-5-1983 and thereby, her ownership became absolute. She complained that taking advantage of her absence in the village, the appellants and the 2nd respondent started interfering with her possession over the schedule land.
4. On behalf of the appellants, a written statement was filed disputing the contention of the 1st respondent. It was pleaded that the suit schedule property was held by Subbaraya Sarma and after his death in the year 1974, the 1st appellant is in possession and enjoyment. It was contended that the so-called list of partition is unenforceable in law and that it does not confer any title upon the 1st respondent. A further pleading was to the effect that the 1st appellant gifted the suit schedule property to the 2nd appellant.
5. Through its judgment, dated 30-6-1988, the trial Court dismissed the suit. The 1st respondent filed A.S. No. 157 of 1988 in the Court of I Additional District Judge, Guntur. The appeal was allowed through judgment, dated 24-11-1994. Hence, this second appeal.
6. Sri G. Krishna Murthy, learned Counsel for the appellants, submits that the lower appellate Court erred in decreeing the suit, on the basis of Ex.A.3, which is inadmissible in evidence. He contends that the continuous possession of the 1st appellant over the suit schedule property for over four decades before the suit was filed, was clearly adverse to the interests of the 1st respondent and that there was no basis for the lower appellate Court to decree the suit. It is also his case that when the 1st respondent, as PW.1, admitted in her cross-examination that she is not in possession of the land, the decree for perpetual injunction ought not to have been granted.
7. Sri Naveen Kumar, learned Counsel for the respondents, on the other hand, submits that the 1st appellant is a party to Ex.A.3, a list of partition, in which the suit schedule property was allotted to the share of the 1st respondent, just few months before the suit was filed and thereby, the latter is precluded from contending to the contrary. learned Counsel further submits that the 1st respondent had clearly traced her title to the land and the little dispute that existed about it, stood cleared through execution of Ex.A.10.
8. The 1st respondent filed the suit for the relief of declaration of title. The consequential reliefs were in the form of perpetual injunction, or in the alternative, for recovery of possession. The trial Court framed three independent issues, touching on these aspects. On behalf of the 1st respondent, PWs.1 to 5 were examined and she filed Exs.A.1 to A.11. On behalf of the appellants, DWs.1 to 6 were examined and Exs.B.1 to B.33 were marked. In addition to that, Exs.X.1 and X.2 were also taken on record.
9. The relationship of the parties is not in dispute. The 1st appellant and the 2nd respondent are natural brothers. But the latter was given in adoption to their paternal uncle, by name, Raghavaiah. The 1st respondent is the natural daughter of Raghavaiah. While Raghavaiah died in the year 1949, his brother Subbaraya Sarma died in the year 1974. The manner in which the properties were shared between the said two brothers is not clear. The dispute as to the title to the suit schedule property, came to light for the first time in December, 1982, when the 2nd respondent gifted the suit schedule property to his wife, by name, Sharada Devi, through a gift deed, dated 27-5-1982, marked as Ex.A.9. The 1st respondent, who is the natural daughter of Raghavaiah, had raised a dispute about this. It was in this context that a settlement/partition took place between the 1st appellant, and Respondents 1 and 2. Ex.A.3, dated 13-12-1982, is a list of partition, among three persons, referred to above. The recitals in Ex.A.3 disclose that the disputes between the three persons were discussed at length, and the properties were allotted to the respective parties, as per the lists contained in it. The suit schedule property was allotted to the 1st respondent.
10. One significant fact, which needs to be noted is that by the date of Ex.A.3, the suit schedule property stood gifted to the wife of the 2nd respondent. It was for this reason that a recital was made in Ex.A.3 to the effect that the wife of the 2nd respondent must recovery the property to the 1st respondent. Consequently, the wife of the 2nd respondent executed a gift, dated 7-5-1983, marked as Ex.A.10, in favour of the 1st respondent. Thereby, not only the validity, but also the enforceability of Ex.A.3 came to be established.
11. Learned Counsel for the appellants has raised a serious objection as to the admissibility of Ex.A.3 in evidence, on the ground that it was not properly stamped. The clear answer to the contention of the learned Counsel for the appellants is, Section 36 of the Indian Stamp Act, 1899. Any objection as to the admissibility of a document, on the ground that it is unstamped or insufficiently stamped, must be raised while the document is being received in evidence. Once, the document has been admitted, any objection on that ground cannot be raised and Section 36 of the Act prohibits the same.
12. At any rate, the 1st appellant did not dispute his signature upon Ex.A.3 and it can certainly be taken into account for collateral purpose, if not as the sole basis of title. One more important aspect is that whatever be the legal consequences flowing from Ex.A3, with the execution of Ex.A.10 in favour of the 1st respondent, she became the absolute owner and her title stands established.
13. Learned Counsel for the appellants submits that his clients have perfected their title over the suit schedule property by way of adverse possession. He contends that the record discloses that over 40 years prior to the filing of the suit, the property was in possession and enjoyment of the 1st appellant. In this regard, it has to be noted that the appellants did not raise any plea of adverse possession in their written statement. Obviously, for this reason, no issue was framed on this aspect, by the trial Court. The casual observations made by the trial Court, on this aspect, cannot be taken into account at all. Plea of adverse possession must be specifically raised in the written statement and the burden to prove the same squarely rests upon the defendants. The appellants herein did not raise any plea, much less have they discharged their burden. Viewed from any angle, this Court does not find any basis to interfere with the findings recorded by the lower appellate Court.
14. It is true that there is an inadvertent admission on the part of the 1st respondent in her evidence that she is not in possession of the property. Obviously, for this reason, she claimed the alternative relief of recovery of possession. However, Respondents 1 and 2 and the 1st appellant have joined in partition of the properties among themselves and that through Ex.A.3, the suit was filed shortly thereafter. The possession of the 1st respondent over the suit schedule property even if true, must be treated as the one on behalf of the 1st appellant. Therefore, this Court does not find any basis to interfere with the decree of the lower appellate Court.
15. The second appeal is accordingly dismissed. There shall be no order as to costs.