identification of property - After obtaining the decree, the 1st respondent – D.Hr. filed E.P. No.18 of 1994 to take possession of the site encroached by the 2nd respondent. On 11-03-1994, when the Bailiff of the Court proceeded to the schedule mentioned site for delivering the encroached portion to the 1st respondent, the 2nd respondent obstructed and that, the petitioner filed an application seeking police aid and also filed the present claim petition. the burden is on the petitioner - claimant to show that the EP schedule property and the petition schedule property in the claim petition are one and the same. The petitioner filed Ex.A-1, which is a passbook issued by the Andhra Pradesh Housing Corporation Limited, allotting plot No.148 to the petitioner but, it does not contain the plan or measurements of the site. Ex.A-2 is the receipt of the Electricity Bill, which was filed to show that the petitioner was given the electricity connection. the specific case of the 1st respondent is that he sold 0.06 cents of site to the 2nd respondent and the 2nd respondent had encroached ‘HIJK LMNO’ site which is shown in the plaint plan filed in O.S No.78 of 1992 and thus, the learned first appellate Court arrived at the conclusion that the said site and plot No.148 must be contiguous with the encroached portion and thereby a common slab was raised for the two portions of the petitioner and the 2nd respondent. Thus, ultimately, the learned first appellate Court recorded a finding that the petitioner could not be able to substantiate that the petition schedule property and the EP schedule property are identically one and the same.


HONOURABLE SRI JUSTICE R. KANTHA RAO

 

C.M.S.A. No.31 OF 2003

JUDGMENT:
         

          This CMSA arises out of the order, dated 03-07-1996, passed by the I Additional District Munsif, Rajahmundry in E.A. No.526 of 1994 in E.P. No.18 of 1994 in O.S.No.78 of 1992. 

          2.  Heard the learned counsel for the appellant.  There is no representation for the respondents.

          3.  For the sake of convenience, the parties will be referred to as ‘appellant’ and the ‘respondents’ i.e. as they were referred by the learned District Judge, Rajahmundry in the appeal suit.

          4. The appellant - claimant is the son–in–law of the 2nd respondent – J.Dr.  The 1st respondent is the Decree Holder.  According to him, he is the owner of the property covered by Plot No.148 bearing D.No.1-21 measuring 0.03 ½ cents situated in Venkatanagaram village of Katheru panchayat.  He further stated that the property was allotted to him in the year 1985 by the A.P. State Housing Corporation Limited on which a small terraced house was constructed with the assistance given by the said Housing Corporation.  He also obtained patta for the said property. He further stated that the 1st respondent is trying to take delivery ofhte said property with the help of the Court Amin.  Hence, he filed E.A.No.526 of 1994 in EP No.18 of 1994. 
The 1st respondent – J.Dr. filed counter in the said application stating that the petition schedule property is nowhere concerned with the decree schedule property and the decree schedule property is situated in Venkatanagaram village and claimed to be the absolute property of the 1st respondent.  According to him, he purchased 0.30 cents of land covered by R.S. No.498/10A of Venkatanagaram village and divided into plots. One plot, which is an extent of 0.06 cents, was sold to the 2nd respondent.   It is stated that thereafter, that the
2nd respondent encroached into the neighbouring plot and the
1st respondent filed O.S.No.78 of 1992 against the 2nd respondent for recovery of the said land and obtained a decree.  In the said suit, the
2nd respondent did not contest at all.  After obtaining the decree, the
1st respondent – D.Hr. filed E.P. No.18 of 1994 to take possession of the site encroached by the 2nd respondent.  On 11-03-1994, when the Bailiff of the Court proceeded to the schedule mentioned site for delivering the encroached portion to the 1st respondent, the 2nd respondent obstructed and that, the petitioner filed an application seeking police aid and also filed the present claim petition. 

5.  As rightly held by the learned first appellate Court, the burden is on the petitioner - claimant to show that the EP schedule property and the petition schedule property in the claim petition are one and the same.  The petitioner filed Ex.A-1, which is a passbook issued by the Andhra Pradesh Housing Corporation Limited, allotting plot No.148 to the petitioner but, it does not contain the plan or measurements of the site.  Ex.A-2 is the receipt of the Electricity Bill, which was filed to show that the petitioner was given the electricity connection. 

          6.  The learned first appellate Court rightly held that these documents do not establish that the property, which is the subject matter of the decree in O.S.No.78 of 1992 and the property in the claim petition are one and the same.  Further, the petitioner in his cross-examination has categorically admitted that the decree holder
(1st respondent) never tried to occupy his site.  He further admitted that his house and the house of the J.Dr. (2nd respondent), who is his father-in-law, have two portions with a single slab.  The learned first appellate Court further noticed that the petitioner failed to establish that as to how his father-in-law got the said property.

          7.  On the other hand, the 1st respondent-Decree Holder claimed the property under Ex.B-1 sale deed for an extent of 0.30 cents covered by survey No.498/10A.  In the cross – examination, PW-2 (petitioner) had categorically admitted that his plot number is 148 and that his house and the house of his father-in-law i.e. the 2nd respondent are adjacent, having a common slab.  As against this, 1st respondent has specifically denied that plot No.149 was allotted to the 2nd respondent by the Housing Board.  The appellate Court held that if really plot No.149 was allotted to the 2nd respondent, nothing would prevent the petitioner from filing the passbook or the 2nd respondent could have been examined as a witness on behalf of the petitioner. 

8.  The learned first appellate Court rightly held that the specific case of the 1st respondent is that he sold 0.06 cents of site to the
2nd respondent and the 2nd respondent had encroached ‘HIJK LMNO’ site which is shown in the plaint plan filed in O.S No.78 of 1992 and thus, the learned first appellate Court arrived at the conclusion that the said site and plot No.148 must be contiguous with the encroached portion and thereby a common slab was raised for the two portions of the petitioner and the 2nd respondent.  Thus, ultimately, the learned first appellate Court recorded a finding that the petitioner could not be able to substantiate that the petition schedule property and the EP schedule property are identically one and the same. 

          9.  From the above, it is clear that the entire question involved in the CMSA is a question of fact, which has been rightly and correctly dealt with by the first appellate Court.  There is no substantial question of law arises for consideration in this CMSA.

          10.  Therefore, the CMSA is devoid of any merit and is, accordingly, dismissed.  There shall be no order as to costs. 

  _______________
                                                            R. KANTHA RAO, J
January 30, 2012.
KTL

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