AS/473/1992 of Pydah Sreeramakrishna Murthy,(died) per Lrs A-3 AND 4 Vs Nootha Lakshmana Rao, on 31 December 2010

JUDGMENT:-

The appeal is filed against the judgment of the Principal Subordinate Judge, Kakinada dismissing the suit of the plaintiff.The suit was filed for a declaration of a title to theschedule site to an extent of 812 square yards situated inT.S.No.1450 of Jagannaickpur, Kakinada and for possessionand mandatory injunction. The allegations in the plaint goes toshow that plaintiffs are brothers. First defendant is brother andsecond defendant is sister and children of third defendant. Agodown bearing D.No.61-1-42, situated in Jagannaickpur,Kakinada shown as A,B,C in the plaint plan belongs to seconddefendant and it is being managed by defendant Nos.1 to 3.But to the east of the said godown, there is a vacant sitebelonging to the plaintiffs shown as B, C, H, F, G,E and B. Theplaintiffs submitted a lay out and got approved with regard tosite owned by them. When the Government proposedacquisition, the plaintiffs filed a writ and obtained a stay. Thesite as such is vacant. The defendants with a view to annexthe vacant site opened a door-way and encroached into red-marked site. The defendants have high-handedly constructedwalls around the encroached site. Hence the suit.

The defendant Nos.2 and 3 filed a written statement whichwas adopted by the first defendant. The defendants contendedthat the plaintiffs have no title, possession or right in the redmarked portion. It was further pleaded that schedule propertiesoriginally belonged to one Lankada Butchi Raju and others andsecond defendant filed a suit on the basis of a mortgageagainst them in O.S.No.48 of 1972 and another person alsobrought a suit O.S.No.243 of 1969 and the property wasbrought to sale and the second defendant becoming purchaserand obtained a sale certificate and took delivery of the propertyon 09-05-1974. The plaintiffs are aware of the above facts. Theplaintiffs have therefore no right or interest in the scheduleproperty. The suit is liable to be dismissed.

On the basis of the above pleadings, the following issueswere settled for trial.

1. Whether the 2[nd] defendant and her predecessors in title have been possession and enjoyment of the property since 17 years from the time and its purchase in acourt auction and there after perfected her title by adverse possession?

2. Whether the plaintiffs are entitled to the declaration that they are the owners ofsuit schedule property and for recovery of the possession after ejecting thedefendants therefrom?suit schedule property and for recovery of the possession after ejecting thedefendants therefrom?

3. Whether the plaintiffs are entitled to the mandatory injunction for removal of thewall and other structures constructed in the red-marked portion of the plaint plan?wall and other structures constructed in the red-marked portion of the plaint plan?

4. Whether the plaintiffs are entitled to the permanent injunction prayed for?

5. To what relief?

On behalf of the plaintiffs, PWS.1 and 2 are examined andmarked Exs.A-1 to A-20. On behalf of the defendants DW.1 isexamined and marked Exs.B-1 to B-3.

After considering the evidence on record, the learnedSubordinate Judge dismissed the suit and aggrieved by thesaid judgment, the present appeal is filed.

The points that arise for consideration are:-

(1) Whether the plaintiffs have proved title and right to theschedule property and entitled for the reliefs as framed for?

(2) Whether the judgment passed by the learned SubordinateJudge is legal and sustainable?

(3) To what relief?

POINTS:-

The learned Senior Civil Judge considered the contentionsof the plaintiffs and the rival purchases, the red-marked portionaccording to the plaintiffs in Sy.No.1450 and there is further sitetowards East of the site. The basis of the title relied on by theplaintiffs is under Ex.A-2 sale certificate. It was found that thesale certificate shows an extent of Ac.12.96 cents waspurchased and it is Ex.A-2. But the rough patta Ex.A-3 whichwas issued by the Assistant Settlement Officer in favour of theplaintiffs’ father shows that it was given an extent of Ac.12.40cents which is comprised in Sy.No.157/2 and 157/4corresponding to T.S.No.1450 and 1452. Therefore, oncomparison of the documents, the learned Subordinate Judge found the land in Sy.No.1450 is only Ac.10.37 cents as per thepatta and though Ex.A-2 sale certificate shows that it isAc.10.87 cents as such there is a deficiency of Ac.0.50 cents tothe title of the plaintiffs and even with regard to Sy.No.1452there is deficiency of Ac.0.06 cents. Therefore, the totaldeficiency of the land claimed by the plaintiffs under Ex.A-2 salecertificate is Ac.0.56 cents. The learned Subordinate Judgefound that there is no explanation given by the plaintiffs to showas to how such a variation has come. The claim of the plaintiffsis that the land in T.S.No.1450 to an extent of 812 square yardswas trespassed but there is no proof that such land is in thesaid survey number. The lower court also found that theproperty was said to have been divided between PW.1 and hisbrother and the said document is not filed to show the extent ofproperty in the said survey number. In fact, the lower courtrelied on Ex.B-1 sale certificate showing purchase of an extentof 1280 square yards. The lower court also found that Ex.A-5 isnot enclosed with the approved plan showing the extent ofproperty and therefore the claim of the plaintiffs also cannot beconsidered. From a consideration of the entire oral anddocumentary evidence, the lower court found that the plaintiffshave not explained the deficiency of the title referred under thepatta and on the other hand the sale certificate shows the title ofthe defendants. The lower court also found the particulars of thetrespass is not mentioned. The lower court also found that thedefendants could thereby that they have got title to 1500square yards under Ex.B-1. Therefore, for all the abovereasons, the lower court has dismissed the suit of the plaintiffsand as rightly found by the lower court the plaintiffs have failedto prove the right or interest in the disputed portion and alsofailed to prove the particulars of possession or their continuationand enjoyment and I do not find any reason to interfere with thedecree passed by the lower court. Accordingly the appeal suitis liable to be dismissed. The points are therefore answered.

The appeal suit is accordingly dismissed. No order as to costs.

31-12-2010

TSNR

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N.R.L.NAGESWARA RAO,J