The suit was one filed for declaration of title and possession of an extent of 32.6 square yards shown in the plaint schedule as “ABCD” and for permanent injunction to remove the permanent constructions. - Evidently, the Commissioner found that there was a demarcating wall, which was said to be old, existing on the eastern side of the property of the plaintiff and thereby clearly going to show that there was separate property and the report of the Commissioner does not show that the defendant has encroached into any site beyond the wall. Evidently, the plaintiff has not got measurements of his property and the property of his brother to know as to about exact location of the properties and their extent. The constructions said to have been made by the defendant are in his land. The plaintiff purposefully avoided to get the land of his brother to be measured. It is not as though that the plaintiff is far away from the village and in fact the place-Hukumpeta where he was said to be residing is not more than 8 or 9 kilometers and his contention that he noticed the constructions only in the year 1998 does not appear to be true.


THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO
SECOND APPEAL NO.44 of 2012

JUDGMENT:-
The unsuccessful plaintiff in O.S.No.826 of 1998 on the file of the Court of IV Additional Junior Civil Judge, Rajahmundry is the appellant herein.
The suit was one filed for declaration of title and possession of an extent of 32.6 square yards shown in the plaint schedule as “ABCD” and for permanent injunction to remove the permanent constructions.
The claim of the plaintiff is the portion “ABEF” shown in the plaint plan was acquired by the plaintiff’s father in 1965 and after his death, the plaintiff and his brother Mutyala Rao partitioned the property and “ABCD” fell to the share of the plaintiff. The defendant is the grandson of one late Kunche Venkanna, who was eastern a neighbour of the plaint schedule property. The defendant was living after the death of K.Venkanna. There used to be a wall demarcating the boundary on the ground on the eastern side of the plaint schedule property between the both properties. In or about 1981, the plaintiff left the village and when he came in the second week of May-1998, he found the defendant having encroached the property and made permanent construction. Therefore, the suit was filed.
The defendant has denied the right of the plaintiff and contended that the plaintiff is aware of the constructions made by the defendant and the land belonging to K.Venkanna and there was no encroachment into the site of the plaintiff.
After considering the evidence on record and on the basis of the necessary issues, the trial court has dismissed the suit. Aggrieved by that A.S.No.134 of 2004 was filed before the VIII Additional District Judge,Rajahmundry and the said appeal was also dismissed. Aggrieved by the said judgment, the present Second Appeal is sought to be filed.
Evidently, this is a suit for recovery of possession after the declaration of title.  Both the courts on appreciation of the oral evidence and also the Commissioner’s report, which was taken in the lower court and also in the appellate court, have found that the suit schedule property is not the property of the plaintiff. Evidently, the Commissioner found that there was a demarcating wall, which was said to be old, existing on the eastern side of the property of the plaintiff and thereby clearly going to show that there was separate property and the report of the Commissioner does not show that the defendant has encroached into any site beyond the wall. Evidently, the plaintiff has not got measurements of his property and the property of his brother to know as to about exact location of the properties and their extent. The constructions said to have been made by the defendant are in his land. The plaintiff purposefully avoided to get the land of his brother to be measured. It is not as though that the plaintiff is far away from the village and in fact the place-Hukumpeta where he was said to be residing is not more than 8 or 9 kilometers and his contention that he noticed the constructions only in the year 1998 does not appear to be true. Therefore, both the courts, on appreciation of oral evidence and also the report of the Commissioner, have found that the plaintiff has failed to prove the claim and consequently dismissed the suit of the plaintiff. Therefore, in view of the above circumstances, I do not find any merits in the Second Appeal and the same is liable to be dismissed at the stage of admission.
Accordingly, the Second Appeal is dismissed at the stage of admission. No costs.

_____________________­­__
N.R.L. NĀGESWARA RĀO,J
08-10-2012
TSNR

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