SA/1411/2010 of K. Ambaji Rao (Died) per L.Rs Vs G. Kurumurthy on 31 December 2010

JUDGMENT:

Second Appeal No.1411 of 2010

This Second Appeal is directed against the judgment and decree,dated 20.08.2010, passed in A.S.No.36 of 2007 on the file of theFamily Court-cum-Additional District Court, Mahabubnagar, wherebyand whereunder the learned Additional District Judge dismissed theappeal, confirming the judgment and decree, dated 05.02.2007,passed in O.S.No.17 of 2002 on the file of the Senior Civil Judge,Narayanpet.

2. The facts of the case, in a nutshell, leading to filing of this SecondAppeal by the appellants/plaintiffs, are:

a) Initially, O.S.No.17 of 2002 on the file of Senior Civil Jude,Narayanpet, was filed by K.Ambaji Rao seeking for declaration of titlein respect of the suit schedule property and also for mandatoryinjunction for removal of structures raised by the defendant.

b) The plaint averments in brief are: The suit schedule propertyadmeasuring 134 sq. yards is out of the total extent of Ac.1.80 cents inSurvey No.80 of Kamath Pulimamidi village of Makthal Mandal. PWD

Road runs through the land bearing Survey No.80. He constructed aresidential house during 1945 on the north of the said road. Heretained 134 sq. yards on the south of the road. He also retained partof the land in Survey No.80 on the south of the road. He came to knowthat defendant purchased 300 sq. yards of site in Survey No.79 undera registered sale deed, dated 10.11.2000 from one Ravi Kumar. According to him, the defendant encroached 134 sq. yards of him inSurvey No.80. Therefore, he filed the suit for declaration of title and formandatory injunction in respect of 134 sq. yards of land in SurveyNo.80.

c) The defendant filed written statement contending that he isnot in occupation of any part of the land in Survey No.80. Heconstructed three shops over an extent of 300 sq. yards in SurveyNo.79.

d) The trial Court framed the following issues for trial:

1) Whether the plaintiff is owner of the suit land in Sy.No.80 of Makthal?

2) Whether the suit land (i.e., 134 sq. yds.) forms part of Sy.No.80 orSy.No.79?Sy.No.79?

3) Whether the plaintiff is entitled to be declared as the owner of the suitland?land?

4) Whether the plaintiff is entitled for the mandatory injunction in respectof the suit land?of the suit land?

5) Whether the plaintiff is entitled for recovery of possession of the suitland?land?

6) Whether the plaintiff is entitled for permanent injunction as prayedfor?for?

7) Whether the suit is within limitation?

8) Whether the suit is maintainable in law?

9) To what relief?

The sole plaintiff died pending disposal of the suit and his Legal Representatives came on record as plaintiffs 2 to 5 and consequently, the issues came to be re-settled as follows:

1) Whether the plaintiffs are the owners of the suit land in Sy.No.80 ofMakthal?Makthal?

2) Whether the suit land (i.e. 134 sq. yds.) forms part of Sy.No.80 orSy.No.79?Sy.No.79?

3) Whether the plaintiffs are entitled to be declared as the owners of thesuit land?suit land?

4) Whether the plaintiffs are entitled for the mandatory injunction inrespect of the suit land?respect of the suit land?

5) Whether the plaintiffs are entitled for recovery of possession of thesuit land?suit land?

6) Whether the plaintiffs are entitled for permanent injunction as prayedfor?for?

7) Whether the suit is within limitation?

8) Whether the suit is maintainable in law?

9) To what relief?

e) On behalf of the plaintiffs, one witness was examined as PW.1and 8 documents were marked as Exs.A1 to A8. On behalf of thedefendant, two witnesses were examined as DWs.1 and 2 and 5documents were marked as Exs.B1 to B5.

f) The trial Court, on considering the material brought on recordand on hearing the counsel appearing for the parties, came to theconclusion that the plaintiffs failed to prove that the suit scheduleproperty forms part and parcel of the Survey No.80 and therebyproceeded to dismiss the suit, by judgment dated 05.02.2007. Theplaintiffs filed A.S.No.36 of 2007 on the file of the Family Court-cum-Additional District Court, Mahabubnagar, assailing the judgment anddecree, dated 05.02.2007, passed in O.S.No.17 of 2002.

g) The learned Additional District Judge, on re-appreciation of theevidence brought on record and on hearing the counsel appearing forthe parties, came to the conclusion that the appellants/plaintiffs failedto establish that the site admeasuring 134 sq. yards forms part andparcel of the Survey No.80 and thereby proceeded to dismiss theappeal, by judgment, dated 20.08.2010. Hence, this Second Appeal.

3. Heard learned counsel appearing for the appellants/plaintiffs and perused the judgment of the trial Court as well as the judgment of thelower appellate Court.

4. Learned counsel appearing for the appellants/plaintiffs submitsthat the trial Court as well as the lower appellate Court have notconsidered the evidence brought on record in right perspective, moreparticularly, Ex.A1 certified copy of the Tounch map, dated05.09.2002. Had Ex.A1 had been considered in right perspective, thesuit of the plaintiffs would have been decreed by the trial Court and soalso by the lower appellate Court.

5. I have gone through the judgment of the trial Court as well as thejudgment of the lower appellate Court. The appellants/plaintiffs claimthat the deceased-1[st] plaintiff retained 134 sq. yards in Survey No.80and that retained land is to the south of the road which runs east-west. The only piece of evidence the plaintiffs placed on record is Ex.A1certified copy of Tounch Map, dated 05.09.2002, copy of which ismade available at page No.70 of the material papers. Nothing can bemade out from it that the appellants/plaintiffs retained any part of theland to the south of the road, which runs east west. 2[nd] plaintiff whilebeing examined as PW.1 states that he is not aware of the total extentof the land affected by the road and vacant site to the north of hishouse. For better appreciation, I may refer the relevant portion ofthe evidence of PW.1 in his own words, which reads as hereunder:

“The total extent of land covered by Sy.No.80 is Ac.1.30gts. I do not know the extent covered by our house in Sy.No.80. Icannot say the extent of our land affected by the laying of roadthrough Sy.No.80. There is a vacant site on a North of our house. The road is on the South of our house. On the East of our housethere is a vacant site belong to us. The outskirts of Makthal is onthe Western side of our house. I do not know the extent of ourvacant site towards East of our house. I also do not know the extentof the Northern side vacant site. I do not know whether our father late Ambaji Rao filed O.S.No.71/04 on the file of the learned JuniorCivil Judge, Narayanpet against Nagalaxmi and others.”

The appellants/plaintiffs failed to establish that 134 sq. yards of siteforms part and parcel of the Survey No.80. The trial Court consideredthe material brought on record in right perspective and proceeded todismiss the suit. The lower appellate Court re-appreciated theevidence brought on record and did not find any valid ground tointerfere with the findings recorded by the trial Court and therebyproceeded to dismiss the appeal. The material brought on recordindicates that the appellants/plaintiffs failed to establish that 134 sq.yards of site i.e. suit schedule property forms part and parcel of theSurvey No.80, in which case, the findings recorded by the trial Courtas confirmed by the lower appellate Court do not warrant interferenceof this Court. There is no substantial question of law involved in theappeal warranting admission.

6. Accordingly, the Second Appeal is dismissed at the admissionstage. No costs.

Date:31[st] December, 2010.

cs

______________________

B.SESHASAYANA REDDY, J.

THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

Second Appeal No.1411 of 2010

Date:31stDecember, 2010