Second Appeal - Appreciation of Evidence on failure of appellant court under Or. 41, rule 33 and 23,24 C.P.C. - No plea in W/S about the identity of suit site - Commissioner plan, plaint plan, Pahanies revenue records prima faice conclusion proofs unless mutated , evidence clearly established that the suit site is a part of suit site of another suit filed by vendor of suit - Admitted case that after vacating injunction orders , the defendant made constructions over the disputed land - once title proved burden lies on the defendant to prove adverse possession and in the absence of pleading and evidence , his mere possession does not cloth with any right and is liable to deliver the possession to the rightful owner - non appeal of his vendor suit which was dismissed by common judgment does not operate as resjudicate and the title of vendor and his predecessors in title proved clearly - Their lordships set aside the order and judgement of trial court and that of the appellant court and allowed the second appeal = =Banda Pulla Reddy...Appellant Banda Lakshmamma and others....Respondents = 2014 judis.nic.in/judis_andhra/filename=11015

Second Appeal  - Appreciation of Evidence on failure of appellant court under Or. 41, rule 33 and 23,24 C.P.C. - No plea in W/S about the identity of suit site - Commissioner plan, plaint plan, Pahanies revenue records prima faice conclusion proofs unless mutated , evidence clearly established that the suit site is a part of suit site of another suit filed by vendor of suit - Admitted case that after vacating injunction orders , the defendant made constructions over the disputed land - once title proved burden lies on the defendant to prove adverse possession and in the absence of pleading and evidence , his mere possession does not cloth with any right and is liable to deliver the possession to the rightful owner - non appeal of  his vendor suit which was dismissed by common judgment does not operate as resjudicate and the title of vendor and his predecessors in title proved clearly  - Their lordships set aside the order and judgement of trial court and that of the appellant court and allowed the second appeal =

for recovery of possession of the plaint schedule property
viz., 1820 sq. yards house site in Sy.No.834/AA in panchyat ward No.1 of
Garidepali village and to declare the registered sale deeds executed by Banda
Pedda Sathyanarayana Reddy, the pattadar of said land(vendor of the plaintiff),
are valid and binding on everybody and for perpetual injunction against the
defendants supra and their men etc., from interfering with the possession,
constructions and enjoyment of plaintiff over the suit site, costs and such
other just reliefs. =
Trail court finding about possession and identification of property
The judgment of the trial Court regarding entitlement of possession and
enjoyment which are the core issues is with findings that the boundary
description is not tallying when compared with Ex.B.2 rough sketch filed by the
1st defendant and in O.S.No.89 of 1995, commissioner was appointed as per  order
in I.A.No.352 of 1996 to measure the land with the assistance of mandal surveyor
and report filed showing the suit land in red colour and measurement which is
found as of extent of 14 guntas that lying in triangular shape with boundaries
East: Miryalaguda-Huzurnagar road, North: Housing colony road, South: land of
B.Chandra Reddy and Anthi Reddy, and West: Cinema theatre, that as per
plaintiff's vendor (plaintiff in O.S.No.89 of 1995)herein, the entire land in
S.No.833/AA of 14 guntas, S.No.834/AA Ac.0.18 guntas is single plot and the
plaintiff in O.S.No.66 of 1994 claims the land purchased by him from the
plaintiff in O.S.No.89 of 1995 out of Sy.No.834/AA of 1820 sq.yards and the
defendants claiming the suit site belongs to them (as if in Sy.No.833/A and
834/A) and thereby the fate of the case in O.SNo.89 of 1995 from establishment
of title for the entire 32 guntas in S.No.833/AA and 834/AA within the
boundaries described as single plot, that in O.S.No.89 of 1995 the eastern
boundary: Miryalaguda to Huzurnagar road tallies so also northern boundary:
police quarters but the western and southern boundaries described as land of the
defendants whereas in the  present suit O.S.No.66 of 1994 western boundary and
southern boundary shown as shops and place of Banda Pedda Sathyanarayna  
Reddy(Plaintiff in O.S.No.89 of 1995) and thereby boundaries are not tallying on
close examination with reference to the commissioner's report described supra
and with reference to the Ex.B.2 rough sketch filed by the defendants and that
the plaintiff failed to give sufficient description to identify the suit
schedule site (there is no identity dispute as per original written statement of
1st defendant supra) and such decree granted being unworkable in such case was
the expression of Tripura High Court in Heirs of Charanpai riang and smt.Sambati
riang Vs. Sri Deenbandhudas3 placed reliance by the defendants, that it shows
description given by the plaintiff is without knowing exactly to which land he
claims and thereby the plaintiff in O.S.No.89 of 1995 as well as the plaintiff
herein (O.S.No.66 of 1994) miserably failed to establish the identity of the
property and its location and extent.=

a) The plaint schedule property of (Ac.0.15 guntas=1820 sq.yards which is on
north-east out of the plaintiff's vendor's property of Ac.0.18 guntas in
S.No.834/AA and to its west S.No.833/AA and that is nothing to do with the
defendants extents in S.No.833/A and 834/A and thus the defendants have no right
over the plaint schedule property of plaintiff through his vendor in S.No.834/AA
and the defendants have no way proved any adverse possession over it against the
plaintiff and his vendor;
b) The non-filing of appeal against O.S.No.89 of 1995(O.S.No.123 of 1993) by
plaintiff's vendor no bar for maintainability of the suit claim under appeal and
its maintainability;
c) The identity of plaint schedule property also proved by the plaintiff-
appellant;  and
d) The plaintiff is entitled to eject all the defendants (respondents to the
appeal) from the plaint schedule property with any structures or constructions
of them therein by its removal.

15. In the result, the appeal is allowed, however, with no costs by setting
aside the trial Court's dismissal decree and judgment and by decreeing the
plaintiff's suit claim declaring that the plaintiff got right and title with
entitlement to possession  pursuant to the Ex.A.1 to 3=A.4 to A.6 sale deeds
(with reference to Exs. A.7 and A.14 Kasrapahanis also) over the plaint schedule
property of Ac.0.15 guntas (1820 sq.yards) eastern towards north out of Ac.0.18
guntas in S.No.834/AA of Garidepalli village and the suit as filed is
maintainable and all the defendants (all the respondents to the appeal) are
liable to be evicted including any persons claiming through them and bound by
the decree and by directing the defendants(respondents) to vacate the plaint
schedule property within one month from today and deliver vacant possession by
removal of the constructions they made failing which the plaintiff(appellant) is
entitled to execute the decree and recover possession through Court of law with
costs against all the defendants-respondents.
16. Miscellaneous petitions, if any, in this appeal shall stand closed.


2014 judis.nic.in/judis_andhra/filename=11015

HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO        

APPEAL SUIT No.47 of 1998

06-03-2014

Banda Pulla Reddy...Appellant

Banda Lakshmamma and others....Respondents  

Counsel for the Appellant:Sri S.Chandra Mohan Reddy

Counsel for respondents:Sri A. Pulla Reddy

<GIST:

>HEAD NOTE:  

? Cases referred:
1.      AIR 2003 SC 624
2.      2002(2) SCC 686
3.      AIR 1964 page 36
4.      AIR 1965-SC-354
5.      AIR-1970-SC-1286
6.      AIR-1971-SC-2439
7.      AIR-2012-SC-1727
8.      AIR-1969-SC-255
9.      AIR-1963-SC-1728
10.     2003(5)-SCC-89
11.     AIR-1976-SC-634;
12.     AIR-1969-SC-1144
13.     AIR 1965-SC-184
14.     AIR-2003-SC-1989
15.     1990 (2)-ALT-533
16.     1987(2) APLJ-SC-76
17.     AIR 1998-SC-3118
18.     AIR-1966-SC-735
19.     AIR 1995 SC 167
20.     AIR 1988 SC 719(DB)
21.     1991 (3) SCC 331
22.     1998(5)-ALD-349
23.     AIR-1973-SC-626-
24.     2003(8)-Supreme Today-194
25.     AIR 1977-SC-1481
26.     AIR 1969-SC-395
27.     AIR 1955-SC-481
28.     AIR 1951-SC-120
29.     2002 (1)-SCC-134
30.     2000(5)-SCC-652
31.     2000(1)-SCC-434
32.     (2004) 10 SCC 65
33.     2001(5) ALT 197
34.     (1988) 1 SCC 614
35.     AIR 1996 SC 112
36.     AIR 1963 SC 1879
37.     2011(3) ALT 701
38.     AIR 1974 SC 1178

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO        
APPEAL SUIT No.47 of 1998
JUDGMENT:
        The unsuccessful plaintiff (Banda Pulla Reddy S/o Chandra Reddy of
Garidepalli village) in O.S.No.66 of 1994 on the file of Senior Civil Judge's
Court, Miryalaguda is the appellant herein.  The suit was filed by him against
Banda Lakshmamma, Banda Pulla reddy, Banda Srinivasa Reddy and Banda Sudhakar    
Reddy, wife and sons of late Banda Chinna Sathyanarayana Reddy respectively),
for the reliefs originally sought for permanent injunction later, after written
statement, amended for recovery of possession of the plaint schedule property
viz., 1820 sq. yards house site in Sy.No.834/AA in panchyat ward No.1 of
Garidepali village and to declare the registered sale deeds executed by Banda
Pedda Sathyanarayana Reddy, the pattadar of said land(vendor of the plaintiff),
are valid and binding on everybody and for perpetual injunction against the
defendants supra and their men etc., from interfering with the possession,
constructions and enjoyment of plaintiff over the suit site, costs and such
other just reliefs. The ASCMP No.2566 of 2011 and ASCMP No.909 of 2013 filed,
one is to amend the plaint prayer and the other to amend the grounds of appeal
as part of the events subsequent to the suit filed and also pending appeal
regarding alienation to 5th respondent (since impleaded as per orders in ASCMP
No.2565 of 2011 dated 04.11.2013) by name Smt. R.Sailaja and the constructions
made by her also with claim as all hit by section 52 of the Transfer of Property
Act as lis pendence.  If such is the case, the Court can take note of to mould
the relief including within its power under Order XLI Rule 23,24 and 33 of
C.P.C. without need of permitting the amendment as it is not mere amendment of
grounds of appeal, but also of plaint and once considered, it gives further life
to the litigation by need of giving of opportunity for any additional written
statement and from any say of permitting further evidence and any say of remand
for that purpose vide decision in Atma S.Barar Vs.Mukhtiar Singh1, and in
P.P.Reddy Vs.Pratap Steels2.
2. Coming to the background of the lis, the plaintiff's vendor B.Sathyanarayana
Reddy@B.Pedda Sathyanarayana Reddy S/o Narsi Reddy was no other than plaintiff  
in O.S.No.123 of 1993 on the file of District Munsif, Huzurabad, subsequently
transferred to dispose off along with this suit to the Senior Civil Judge's
Court, Miryalaguda and renumbered as O.S.No.89 of 1995 covered by the common  
judgment dt.13.08.1997 (impugned in the present appeal).  That suit was filed by
Banda Sathyanarayana Reddy @ Pedda Sathyanarayana Reddy for permanent injunction    
restraining the defendants therein who are no other than the defendants herein
as well as Banda Chinna Sathyanarayana Reddy-husband and father of the
defendants, relating to the house site in an extent of Ac.0-14 guntas in
S.No.833/AA and an extent of Ac.0.18 guntas in Sy.No.834/AA (in this
Sy.No.834/AA, the plaint schedule in O.S.66 of 1994 of 1820 sq.yards = Ac.0.15
guntas is the subject matter of the appeal of Garidepali village. Said Chinna
Sathyanarayana Reddy S/o Pulla Reddy, and Pedda Sathyanarayana Reddy S/o Narsi  
Reddy are cousins. Leave it as it is.
3. The averments in support of the plaint ( as well as the amended plaint after
written statement of 1st defendant adopted by others) in O.S.66 of 1994 in nut
shell are that, due to political rivalry between the plaintiff(Banda Pulla Reddy
s/o Chandra Reddy)  and 1st defendant (Banda Lakshmamma) and her sons-defendants  
2 to 4, they gave false complaint as if the plaintiff kidnapped husband of 1st
defendant (Banda Chinna Sathyanarayana Reddy) and also cause published in
newspaper Andhrajyothi Telugu Daily (Ex.A.20) alleging that the plaintiff is
intended to knock away their property by the kidnap and in course of
investigation of the crime registered by police, said Chinna Sathyanarayana
Reddy(since died) allegedly kidnapped was traced and gave statement before
Magistrate under Section 164 of Cr.P.C.(Ex.A.21) that he was not kidnapped by
the plaintiff-Pulla Reddy or any others and the 1st defendant one way or the
other  is aiming to hunt the plaintiff and involve in cases. It is further
averred that plaintiff purchased from Banda Pedda Sathyanarayana Reddy S/o Narsi
Reddy under three sale deeds (Exs.A.1 to A.3 and the rectification deeds(Exs.A.4
to A.6 respectively) of Ac.805 sq. yards + 805 sq. yards + another 210 sq. yards
in S.No.834/AA total 1820 sq.yards (out of Ac.0.18 gts of S.No.834/AA) of
Garidepalli village which is the suit site covered by plaint schedule, that
pattadar passbook (Ex.A.23) also was issued for the Sy.No.834/AA in favour of
the plaintiff for the purchased extent of Ac.0.15 guntas and plaintiff with a
view to construct compound wall around the suit site obtained panchayat
proceedings with a plan (map) dated 22.09.1994 (Exs.A.18 and A.19) showing the
land in Sy.No.834/AA of ward No.1 of Garidepalli village, that while the
plaintiff was getting filled pits in suit land with gravel on 25.09.1994, the
defendants threatened to stop work, that to avoid any fight and threat of
criminal implication, even the plaintiff's vendor was having possession prior to
sale to plaintiff of the suit site; that even the defendants have no right over
the same and from their proclamation of they are not allowing plaintiff to enjoy
the property and the defendants after disposal of C.M.A.No.44 of 1994 on the
file of the District Judge, Nalgonda constructed a wall around the place which
is part of suit site and the plaintiff is thus constrained to file the suit for
above reliefs.
4. The Written statement filed by 1st defendant Banda Lakshmamma was by
contending that, plaintiff's so called vendor Banda Pedda Sathyanarayana Reddy
S/o Narsi Reddy has no concern with the suit schedule site (S.No.834/AA) and
hence the sale deeds executed by him alienating in favour of the plaintiff did
not confer any title in his favour and even plaintiff's vendor also not in
possession either by the date of respective sale deeds (Exs. A.1 to A.3 =
Exs.A.4 to A.6) or earlier to it. It is further contended that said plaintiff's
vendor Banda Pedda Sathyanarayana Reddy filed O.S.No.123 of 1993 on the file of
District Munsif, Huzurabad against same defendants in respect of the schedule
land for permanent injunction from interference with his possession and
enjoyment over the same alleging that the defendants caused interference on
20.11.1993 when he was fencing compound around suit land and he obtained ex
parte temporary injunction in the suit in I.A.No.247 of 1993 and later on
contest by the defendants was vacated on 20.01.1994 (Ex.B.23) by the District
Munsif, Huzurnagar. It is clear that the plaintiff herein was not put in
possession by his vendor (Plaintiff in O.S.No.123 of 1993) of the suit site for
his no even possession. By circumventing and non-disclosing the facts of the
suit filed by his vendor, plaintiff filed this suit(O.S.No.66 of 1994) with
false allegations by showing wrong boundaries and managed to obtain ex parte
injunction order and also police aid under the guise of said orders, tried
vainly to occupy suit schedule site which is in possession of the defendants and
the plaintiff even managed to obtain permission from grampanchayat to construct
compound wall which even does not confer any right or title over suit site in
his favour from such panchayat proceedings (Exs.A.18 and 19) and he did not
construct any wall pursuant to the possession nor with possession of the house
site which is not an agricultural land to issue any pattadar passbook (Ex.A.23)
said to have been obtained and the same is contrary to law, that the Revenue
Divisional Officer, Miryalaguda also  cancelled said pattadar passbook (Ex.B.21)
and title deed by order dated 27.12.1995 and the plaintiff and his vendor
(plaintiff in O.S.No.123 of 1993) filed self-same  pahanies. It is also
contended that the suit is over-valued (in the additional written statement
stated as undervalued) to bring it in Senior Civil Judge's Court instead filing
in Munsif Court to get ex parte orders if possible and by not disclosing earlier
suit proceedings of Munsif Court filed by the plaintiff's vendor and the
plaintiff thereby not come to Court with clean hands having suppressed and
misrepresented the facts and the ex parte order of injunction even made absolute
in the Senior Civil Judge's Court, the District Court in C.M.A.No.44 of 1994,
set aside on 04.06.1996.  It is further contended that, the complaint made by
1st defendant in respect of kidnap of her husband by plaintiff herein and the
paper statement (Ex.A.20) in Andhrajyothi are correct, that her husband was a
little mentally retorted and was kidnapped by plaintiff and got the G.P.A. dated
30.12.1993 (Ex.A.24) executed in his favour by him and his sisters for suit
schedule site and other lands to knock away the same but could not succeed as
said G.P.A. was cancelled on 16.03.1994 (Ex.B.22) and the Section 164 Cr.P.C.
statement (Ex.A.21) of her husband was also obtained under pressure and
influence of plaintiff herein and the suit filed is to grab the available
property if possible with false and baseless averments concocted for the suit
purpose; though it is the defendants in possession of the suit schedule site and
hence to dismiss the suit claim by saying the suit claim of the plaintiff is
also barred by limitation. It is further averred that the defendants erected hut
in the schedule site even prior to filing of the suit and the same was leased
out to Congress party on monthly rent of Rs.200/- and later to Mandal Congress
party office which also establish that the plaintiff is not in possession of
suit site and not entitled to the reliefs against the defendants, that the
defendants have six wooden boxes on eastern side of the site and leased out that
the suit without declaration is not maintainable and hence to dismiss the same.
5. Additional written statement after amendment of the plaint of bare injunction
suit to one for possession (with declaration of the sale deeds as valid and
binding and for injunction) is with the contest further that, defendants in the
written statement supra categorically denied possession of plaint schedule
property besides existence of suit land within the boundaries mentioned (not
disputed existence of suit site, but for claimed as the defendants in
possession), that plaintiff in the amended plaint claimed that defendants after
order in C.M.A.No.44 of 1994 vacating the injunction, constructed a wall around
the place in a part of suit site existing with wooden boxes like stalls and
obtained electricity connection to said stalls which are already constructed by
the plaintiff to keep cement bags and the wall constructed was by Rajireddy
Venkatalakshmi with panchayat permission prior to disposal of C.M.A. is
incorrect for the fact that the defendants are in continuous possession and
enjoyment of the site, shown in red colour in the plan (Ex.B.2) annexed to the
additional written statement, for more than 30 years.  It is further averred
that husband of 1st defendant Chinna Sathyanarayana Reddy, out of the lands fell
to his share in Sy.No.833/A and 834/A in partition between himself and B. Ranga
Reddy, alienated 200 yards to one Kusuma Narayana Reddy under sale deed dated
04.05.1989, 200 yards to K.Narsi Reddy under sale deed dated 04.05.1987, 400
yards to K.Narayana Reddy under sale deed dated 02.09.1989, 400 yards to
K.Narayana Reddy under sale deed dated 29.03.1989, 400 yards under sale deed of
even date to one Anantalakshmi, another 200 yards to B.Chandra Reddy under sale
deed of 1987  and another 200 yards to Sri Bontha Chandra Reddy under sale deed
of 1987 and after said alienations, the area measuring about 14 guntas as per
site plan annexed to the written statement is in possession and enjoyment of
defendants and plaintiff and his vendor never in possession of said land.  It is
further averred that the plaintiff is one of the attesting witnesses of Ex.B.1
agreement of sale in favour of Sarva Reddy dated 24.06.1985 executed by B.Chinna
Sathyanarayana Reddy, and the suit claim for possession of non-existing site
which cannot be located to identify within the boundaries given by plaintiff is
liable to be dismissed, besides with no cause of action to sustain that plaint
can be taken as undervalued from P.W.1 deposed in his chief-examination as its
worth is about Rs.4,00,000/-and the suit claim is barred by limitation besides
suit for mere possession without declaration is not maintainable on the fact
that defendants are from the beginning denying title and hence to dismiss the
suit. The other defendants adopted the written statement and additional written
statement of 1st defendant supra.
6. Therefrom the trial Court originally framed issues viz., whether the
plaintiff is entitled to permanent injunction over the plaint schedule property
as prayed for, the additional issues are whether the plaintiff is entitled for
recovery of possession of suit schedule land and whether the suit claim for
recovery of possession is barred by limitation.  It is therefrom ultimately the
trial Court by common judgment dated 13.08.1997 of both the suits (O.S.No.89 of
1995 which is originally O.S.No.123 of 1993) filed by the plaintiff's vendor
B.Pedda Sathyanarayana Reddy S/o Narsi Reddy, against the defendants and the  
suit filed by the plaintiff (O.S.No.66 of 1994) against the defendants dismissed
with no costs.
7. Before the trial Court there was separate trial of both suits O.S.No.89 of
1995 and O.S.No.66 of 1994, however, disposed of by common judgment as per the  
orders of this High Court in C.M.P.No.80 of 1995 dated 01.09.1995.  The evidence
let in the suit 66 of 1994 before the trial Court was that of B.Pulla Reddy
(plaintiff) as P.W.1 and Yedla Anjan Reddy, Banda Randa Reddy and Linga
Ramulu(P.Ws.2 to 4) besides Exs.A.1 to A.29 placed reliance upon by the
plaintiff and on behalf of 1st defendant, B.Lakshmamma as D.W.1,besides Kusma
Sarva Reddy, Bontha Chandra Reddy, Ragireddy Venkatalaxmi, Ullendula Srinivas
and B. Ram Reddy (D.Ws.2 to 6) and defendants relied upon Exs.B.1 to B.31 and
Exs. X.1 to X.14 were also marked.
8. The judgment of the trial Court regarding entitlement of possession and
enjoyment which are the core issues is with findings that the boundary
description is not tallying when compared with Ex.B.2 rough sketch filed by the
1st defendant and in O.S.No.89 of 1995, commissioner was appointed as per  order
in I.A.No.352 of 1996 to measure the land with the assistance of mandal surveyor
and report filed showing the suit land in red colour and measurement which is
found as of extent of 14 guntas that lying in triangular shape with boundaries
East: Miryalaguda-Huzurnagar road, North: Housing colony road, South: land of
B.Chandra Reddy and Anthi Reddy, and West: Cinema theatre, that as per
plaintiff's vendor (plaintiff in O.S.No.89 of 1995)herein, the entire land in
S.No.833/AA of 14 guntas, S.No.834/AA Ac.0.18 guntas is single plot and the
plaintiff in O.S.No.66 of 1994 claims the land purchased by him from the
plaintiff in O.S.No.89 of 1995 out of Sy.No.834/AA of 1820 sq.yards and the
defendants claiming the suit site belongs to them (as if in Sy.No.833/A and
834/A) and thereby the fate of the case in O.SNo.89 of 1995 from establishment
of title for the entire 32 guntas in S.No.833/AA and 834/AA within the
boundaries described as single plot, that in O.S.No.89 of 1995 the eastern
boundary: Miryalaguda to Huzurnagar road tallies so also northern boundary:
police quarters but the western and southern boundaries described as land of the
defendants whereas in the  present suit O.S.No.66 of 1994 western boundary and
southern boundary shown as shops and place of Banda Pedda Sathyanarayna  
Reddy(Plaintiff in O.S.No.89 of 1995) and thereby boundaries are not tallying on
close examination with reference to the commissioner's report described supra
and with reference to the Ex.B.2 rough sketch filed by the defendants and that
the plaintiff failed to give sufficient description to identify the suit
schedule site (there is no identity dispute as per original written statement of
1st defendant supra) and such decree granted being unworkable in such case was
the expression of Tripura High Court in Heirs of Charanpai riang and smt.Sambati
riang Vs. Sri Deenbandhudas3 placed reliance by the defendants, that it shows
description given by the plaintiff is without knowing exactly to which land he
claims and thereby the plaintiff in O.S.No.89 of 1995 as well as the plaintiff
herein (O.S.No.66 of 1994) miserably failed to establish the identity of the
property and its location and extent.
 9. It is by impugning legality and correctness of said findings of the trial
Court dismissing the plaintiff's suit for possession with consequential
declaration and injunction respectively, the appeal is filed with the
contentions in the grounds of appeal that said decree and judgment of the trial
Court is contrary to law, evidence and probabilities of the case, that the trial
Court was erred in clubbing both the suits for common judgment though the prayer
is different with distinct claims that there was no issue framed by the trial
Court regarding declaration of registered sale deeds executed by Banda Pedda
Sathyanarayana Reddy in favour of the plaintiff for the suit site of 1820
sq.yards that the trial Court also failed to appreciate the documentary evidence
produced by the plaintiff including the panchayat permission with map, memo
(Ex.A.22) filed by the husband of 1st defendant in I.A.No.247 of 1993 in
O.S.No.123 of 1993 and the pattadar passbook and other revenue records(Exs.A.7
to 17 and 23) and the evidence of  P.Ws. 1 to 4 on record even clearly speak the
existence and identity of the property besides sketch filed by the commissioner
with report, that trial court went wrong in believing the evidence of D.W.1
regarding her alleged possession by construction of wooden boxes in part of the
suit site and the trial Court also went wrong in not properly appreciating as to
identity and existence of property is not in dispute, that trial Court should
have decreed both the suits and hence to set aside the dismissal judgment of the
trial Court  and allow the appeal decreeing the plaintiff suit in O.S.No.66 of
1994 and to pass such other appropriate orders.
10. Heard Sri N.V.Suryanarayana Murthy, learned Senior Counsel for Sri T.Ravi
Kumar and Sri G.Sashikala Murthy, counsel for the appellant  and Sri A.Pulla
Reddy learned counsel representing the learned counsel for the
respondents/defendants Sri Abhishek Reddy.
11. Perused the written arguments and decisions placed reliance by both sides in
the course of hearing arguments of the appeal and the written arguments of
respondents covering some aspects as reply to the written argument of the
appellant. Instead reproducing the same to make the judgment bulky, contextually
it is being discussed to the extent of relevancy for convenient sake of
convenience and clarity.
11-A. Before coming to the factual matrix, it is the settled proposition of law
that, trial is a voyage in which trust is the quest. Truth alone triumphs; not
falsehood. Truth alone has to be the foundation of justice. The entire judicial
system has been created only to discover and find not the real truth. Thus, the
court will not only examine the oral testimony but also the surrounding
circumstances and probabilities of the case to decide credibility of a witness
and as to, from said evidence any fact is proved or not proved or disproved. It
is because evidence is to be judged by test of human probabilities vide
decisions reported in Ramchandra Rambux Vs.Champabai4,  Debi Prasad Vs. Tribeni  
devi5; Commissioner of Income Tax, West Bengal, Calcutta Vs. Durgaprasad more6  
and Maria M.S.Fernandes Vs. Erasno J.De Sequerie7.  
11-B. It was also laid down in this regard that, it is the duty of the Judge to
consider the evidence objectively and dispassionately to examine it in the light
of probabilities and decide in which was the truth lies. The appreciation of
evidence is no doubt from experience and knowledge of human affairs depending
upon facts and circumstances of each case and regard had to the credibility of
the witness, probative value of the documents, lapse of time if any in proof of
the events and occurrence for drawing inferences, from consistency to the
material on record to draw wherever required the necessary inferences and
conclusions from the broad probabilities and from preponderance from the overall
view of entire case to judge as to any fact is proved or not proved or disproved
vide decision in Chaturbhuj Pande Vs. Collector8 and Ishwari Prasad Misra
Vs.Md.Isa9.
11-C. Further, it is the settled law in dealing for appreciation of the evidence
by the appellate Courts that, the 1st appellate Court must re-appreciate
(appreciate afresh) the entire evidence in giving findings supported by reasons
as to decide the lis and therefrom to find how far the decision of the trial
court on any of its findings and conclusions are correct or incorrect, including
for confirmation or reversal of said findings of the trial Court vide decision
reported in - AIR-2001-SC-965 in Santhosh Hazaria's case.  In coming to the
appreciation of the evidence concerned, as laid down in Madan Lal Vs., Yoga
Bai10, in Civil appeals, particularly in first appeal, the appreciation of
evidence is at large like appreciation of evidence in a suit, more particularly
from Order 41, Rule 33 and 24 C.P.C. Coming to the powers of the 1st appellate
Court in this regard concerned, more particularly from Order 41, Rule 33 and 24
C.P.C. and from several expressions of the Apex Court including Koksingh Vs.
Deokabai11 Giani Ram Vs. Ramjilal12; Jagdev singh sidhanji Vs. Pratap singh
Daulta13 in Banarasi Vs.Ramphal14 and Madan Lal (supra), that the 1st appellate
court is competent to grant relief if finds appropriate on any facts though they
were not granted by the trial Court in rendering complete justice and prevent to
the extent possible scope for further litigation in order to give finality to
the lis.  The provision is one of the main objects to avoid a situation of
conflicting decrees coming into existence in same suit. The power conferred is
of widest amplitude and unfettered. No doubt the power is subject to three
limitations viz.,1) must not to prejudice of persons not parties(R.24); 2) If
party given up the claim, not to revive and 3) if party of decree not appelled
and made find, cannot grant relief on unappellated portion. It is in spite of
non-filing of appeal or cross-objections with any specific plea, besides O.XVI
Rule 22 permits any finding to attack and Section 105 C.P.C. permits any interim
order made final to attack for granting such relief it is within the power of
the Court (no doubt subject to above limitations) vide decisions reported in The
Revenue Divisional Officer-cum- Land Acquisition Officer,Chittoor Vs.
P.G.Krishna Swami Naidu15, Mahani Dhangir Vs.Shrimadan Mohan16; and K.Muthuswami      
Gounder Vs.N.Palaniappa Gounder17 and Madan Lal(supra).  
11-D. No doubt, the burden of showing that the judgment or even a finding
therein under a challenge in appeal is wrong or incorrect either wholly or in
part lies on the appellant and same is also the proposition in the course of the
cross-objections as the cross-objectors are at par with appellants so far as
their contentions in the cross-objections concerned, in the course of the cross-
objections in shifting the burden on them, from hearing the main appeal.

        11-E. It is also the well-settled proposition of law that, though
generally no plea, no evidence can be looked into and for no issue, no finding
can be given, it is not always the static principle from the fact that even a
plea not made specifically if covered by implication and evidence let in and
parties got knowledge, and parties got knowledge, it can be looked into and even
to give finding no issue framed is of no bar to formulate a point and decide.
Burden of proof pales significance as what is necessary is party shall aware of
the pleadings and evidence for the Court to give finding from the hearing
covering the lis but not outside the scope vide decision reported in Bhagwati
Prasad Vs.Shri Chandramahll18 of the constitution Bench.  It was also held
therein that even alternative remedy not pleaded if entitled, Court can grant it
where it is appropriate to do so. In  Balasankar Vs. Charity Commissioner19,
Gujarat at para-19-it was held that, burden of proof pales significance when
both parties adduced evidence and it is the duty of the court to appreciate the
entire evidence adduced by both sides in deciding the lis.  So also on the
aspect as to party proved in possession of best evidence is bound to produce the
same to throw light on the lis and to unfold any truth and thereby cannot take
shelter on the abstract doctrine of burden of proof saying burden not on him to
prove by filing the same, as laid down in para-10 in NIC vs. Jugal Kishore20,
and Lakhan Sao Vs. Dharam Chowdhary21.  

11-F. Coming to the proof of facts out of the facts in issue to the extent of
relevant facts concerned, the above expression discussed what is meant by
proved, not proved or disproved with reference to Section 3 of the Evidence Act.
In N.K.Somani Vs., Punam Somani22, the scope and the difference between proved,
not proved and disproved in a civil matter was discussed. In Premlata Vs.Arhant
Kumar Jain23 (three judge Bench) in para-2 that where both parties have adduced
evidence, the question of burden of proof loses its importance. It is the duty
of the Court to appreciate from entire evidence on record; irrespective of who
let in what evidence.
11-G. In  RVEE Gounder Vs., RVS Temple24 case at 196 and at paras 25-28, the
Apex Court discussed that, in civil cases the proof is by preponderance of the
probabilities including in suits relating to ejectment or declaration of title
or for possession; and the onus shifts from initial burden on the plaintiffs if
able to establish from preponderance of probabilities the entitlement, on the
defendant to rebut the same including with specific claim on their part if any.
It is in explaining the earlier propositions of law that, in a suit for
ejectment, plaintiff shall win or lose his case only on his own strength
principle, since it does not mean the onus of proof is statically always on the
plaintiff or it shall never shifts on the defendant even if the plaintiff is
able to establish his case from preponderance of the probability as to what is
meant by proved, not proved or disproved required for the above expressions with
reference to Section 3 of Evidence Act without going into the other components
of "may presume, shall presume and conclusive proof", from the very definition,
proved and disproved to say not proved is when it is neither proved nor
disproved, it requires considering the matters before the Court on any fact for
either believes it to exist or does not exist (which is by direct evidence), or
considers its existence so probable that a prudent man ought, under the
circumstance of a particular case to act upon supposition that it exists or it
does not exist( which is by circumstantial evidence).  The Apex Court clearly
held that in a suit for ejectment once plaintiff has been able to create a high
degree of probability so as to shift the onus on the defendant, it is for the
defendant to discharge his onus and in the absence there of, the burden of proof
lies on the plaintiff shall be held to have been discharged so as to prove the
plaintiff's title.
11-H. Before coming to decide how far the trial Court was correct or not in
arriving at the findings impugned in the appeal concerned, the basic principle
of law that also to be kept in mind by the appellate Court is that, where trial
Court rely on facts and probabilities basing on credibility also with
opportunity to observe the demeanor of the witnesses, the findings of the trial
Court when based on reasons and by consideration of the contents of the
documents and oral evidence and on all facts and relevant circumstances, merely
because some other view is also possible, the appellate Court shall not
ordinarily or casually interfere with and reverse in Mohammad Salamatullah
Vs.Government of A.P.25, Narbada Prasad Vs.Chhaganlal26 at paras 10 & 11 and
Sann Madho Das Vs.Mukand Ram27and Sarju Pershad Ramdeo Sahu Vs.Jwaleshwari        
Pratap Narajusingh28.
11-I. In case the appellate Court desires to reverse the judgment and decree of
the lower Court, it should discuss the findings and set aside the same, which
are contrary to law or weight of evidence or probabilities of the case or
perverse, arbitrary or superficial or capricious or unsustainable either on fact
or on law. Same are also the expressions in Veerayee Ammal Vs.Seeni Ammal29 at  
para-14; Sarju pershad Ramdeo Sahu(supra) para-(b), State of Rajasthan
Vs.Harphool Singh30 para(b) and Ishwar Dass Jain(dead) through L.Rs. Vs.Sohan
lal(dead) through L.Rs.31 at 437-k.
11-J. Coming to adverse possession, plea and proof concerned, the classical
requirement is that the possession should be 'NEC VI NEC CLAM NEC PRECARIO'.  
Adverse possession in one sense is based on the theory or presumption that the
owner has abandoned the property to the adverse possessor on the acquiescence of
the owner to the hostile acts and claims of the person in possession. It follows
that sound qualities of a typical adverse possession lie in it being open,
continuous and hostile.
"An owner would be deemed to be in possession of a property so long as there is
no intrusion. Non-use of the property by the owner even for a long time won't
affect his title. But the position will be altered when another person takes
possession of the property and asserts rights over it and the person having
title omits or neglects to take legal action against such person for years
together (emphasis supplied). "The process of acquisition of title by adverse
possession springs into action essentially by default or inaction of the owner".

In  Amrendra Pratap Singh vs. Tej Bahadur Prajapati32-it was held that the
essential requisites to establish adverse possession are that the possession of
the adverse possessor must be neither by force nor by stealth nor under the
license of the owner. It must be adequate in continuity, in publicity and in
extent to show that the possession is adverse to the paper owner.

11-K.  Mahendra C Mehata Vs. M/s.KCPHS Ltd., Hyderabad33 at para 15-Limitation
Act,1963; Article 65-Adverse possession:
Person claiming adverse possession must
know that someone else was the real owner of the property in his possession and
that he is holding it adverse to him - Possession however long without the said
animus does not amount to adverse possession. Article 65 is enacted in the
Limitation Act,1963 in respect of the suits based on title. Therefore, when the
suit is based on title, the plaintiff need not prove that he was in possession
of the land sought to be recovered within 12 years of the suit. Suits falling
under Article 64 of the Limitation Act,1963 are based purely on previous
possession of the plaintiff and therefore is not covered by Art.65, because he
is not claiming recovery of possession basing on his title. Therefore, if the
appellants establish their title to the suit land, the burden of proof would be
on respondents to establish that they have perfected their title to the suit
land by adverse possession, and appellants need not establish that they were in
possession of the suit land within 12 years from the date of the suit. In a suit
falling under Art.65, the defendant, who wants to defeat rights of the
plaintiff, has to establish his adverse possession which has the effect of
extinguishing the title of the owner by operation of Sec.27 of Limitation
Act,1963 and if he fails to do so plaintiff cannot be non-suited merely because
he was not able to prove possession within 12 years.
11-L. Article 65 as well as Article 64 shall be read with Section 27 which bears
the heading - "Extinguishment of right to property".
11-M. In Indira v. Arnnigani34, it was held that where title is established,
defendant has to prove adverse possession.
11-N. As held in P. Periasami v. P. Periathambi -(1995) 6 SCC 523), wherein it
is held that "Whenever the plea of adverse possession is projected, it is
inherent in the plea that someone else was the owner of the property."
11-O. It is well established principle of law that adverse possession is a
question of fact which must be specifically pleaded and proved. Where plea of
adverse possession was not raised in the pleadings, no amount of proof can
substitute pleadings in Abubakar Abdul Inamdar v. Harun Abdul Inantdar35.
11-P. Doctrine of tacking is one relating to computation of period of adverse
possession. Where a person has been in possession without title short of
statutory period and another person succeeds such person and completes the rest
of the period, such person is entitled to compute the whole period for invoking
the concept of adverse possession. This principle cannot be extended in case of
independent trespassers.

12. From the above prepositions, coming to the scope of appeal lis, now the
points that arise for consideration in deciding the appeal are:-
1) Whether the plaint schedule property of nearly Ac.0.15 gts = 1820sq.yards out
of Ac.0.18 gts. in Sy.No.834/AA is in existence and if so whether the plaintiff
vendor got any title over the same to convey in favour of the plaintiff under
the Ex.A.1 to 3=A.4 to 6 sale deeds?
2) Whether the defendants proved got any right over the property as their own or
otherwise of perfected title by adverse possession to non-suit the plaintiff?
3) Whether the appeal claim for the suit reliefs of declaration of title
pursuant to the sale deeds to bind on one and all and for possession is barred
by res-judicata for no appeal preferred against another suit for bare injunction
discussed in O.S.No.89 of 1995 (O.S.No.123 of 1993) which suit filed by the
vendor of the plaintiff (appellant) in O.S.No.66 of 1994 and to which this
plaintiff(appellant) in O.S.No.66 of 1994 not a party(but for both suits decided
from separate evidence only by common judgment)?
4) To what relief?
Points-1 to 3:
         13. As points 1 to 3 are inter-related not only on existence of
property but also who got title over the same in deciding the entitlement of the
plaintiff claimed for possession with declaration of title as per purchase to
bind all including defendants and consequence of appeal filed only against
O.S.No.66 of 1994 common Judgment without filing any appeal against O.S.No.89 of
1995(O.S.No.123 of 1993), all the three points are taken up together. The fact
that Sy.No.834/A and 834/AA are in existence in the village of Garidepali is
practically not in dispute. The written arguments contention of respondents at
para 7(ii) page 5 as if plaintiff's claim is for S.No.834/A is not at all
correct.  In this regard, it is important to note that as per the plaint
averments supra, what the plaintiff claimed purchased from B.Pedda
Sathyanarayana Reddy S/o Narsi Reddy under the three sale deeds, the Exs.A.1 to
A.3 of 1993 covered by rectification deeds i.e. Exs.A.4 to A.6 of 1994 is of
1820 sq.yards in total (805+805+210) which approximately comes to Ac.0.15 guntas
out of the extent of Ac.0.18 guntas in Sy.No.834/AA.   It is no doubt the case
of the plaintiff as well as his vendor in the connected suit O.S.No.89 of 1995,
that he got land of about 32 guntas i.e. Ac.0.18 guntas and Ac.0.14 guntas
respectively in S.No.834/AA and also 833/AA is a contiguous extent as single
plot. Thus, even no appeal filed against O.S.No.89 of 1995 (suit for bare
injunction for Ac.0.18 guntas in S.No.834/AA and Ac.0.14 guntas in S.No.833/AA
by that plaintiff (vendor of present appellant-unsuccessful plaintiff in
O.S.No.66 of 1994 for declaration and possession and also injunction reliefs for
Ac.0.15 guntas (1820 sq.yards) in S.No.834/AA); there is no res-judicata or
obitor or estoppel or waiver, so far as present claim of Ac.0.15 gts.(1820
sq.yards) out of Ac.0.18 gts. in S.No.834/AA, but for to other portion out of
the suit claim in O.S.No.89 of 1995 i.e. Ac.0.14 guntas in S.No.833/AA and
Ac.0.03 guntas out of Ac.0.18 guntas, save the portion covered by subject matter
of the appeal of Ac.0.15 gts.(1820 sq.yards) in S.No.834/AA. Thus, said
contention in the written arguments of respondents of non-filing of appeal
against O.S.No.89 of 1995(O.S.No.123 of 1993) operates as res judicata to the
suit claim in O.S.No.66 of 1994 and the present appeal won't lie is untenable.
13-A. The boundary description to the property is on East:  Miryalaguda to
Huzurnagar R&B road and on North: police housing colony and the way to it also
not in dispute but for if at all the western and southern boundaries. If that is
the case, the plaint schedule site of Ac.0.15 gts.(1820sq.yards) is the eastern
portion out of the plaintiff's vendor's Ac.0.32 guntas.  As per the order VII
Rule 3 where the subject matter of the suit is immovable property, the plaint
shall contain a description of the property sufficient to identify it, and in
case as the property can be identified by boundaries or numbers only as per
record as settlement or survey, the plaint shall specify such boundaries or
numbers. Thus it is to be seen as per the provision, if the description of the
property is sufficient to identify; given either by boundaries or by numbers, it
is suffice.  The Apex Court in Sheodhyan Singh Vs.MCT. Sanchara Kour36 held that
in case identity of property was established, even the mistaken mention of plot
number if any only be regarded as mis-description which does not effect the
identity. Thus identity is the criteria rather than manner in which it was
described.  In the Ex.A.7 relied upon by the plaintiff which is the Khasarpahani
of the year 1954-55(Which is a permanent revenue record of great value), it is
mentioned that Sy.No.834/A is an extent of Ac.0.33guntas that belongs to one
Banda Narasaiah and in the cultivation and enjoyment of Banda Pullaiah as
Khariddar. Further, Sy.No.834/AA Ac.0.18 guntas which also belong to Banda
Narsaiah and he is shown as a person in occupation and enjoyment as pattadar,
not to mention S.No.834 in an extent of
Ac.1-13 guntas. These are the patta lands of said Banda Narsaiah as pattadar and
enjoyer as per colomn Nos.1,3,6 to 8,13 and 15 respectively. Thus, from this
also besides, the existence of Sy.No.834/A of Ac.0.33 gts., as a separate item,
the existence of Sy.No.834/AA of total Ac.0.18 guntas of land in the village is
established to say the description for the same with that as survey number to
identify given by the plaintiff is suffice as per Order VII Rule 3 of CPC
described supra so also from above proposition of the Apex Court in Sheodhyan
Singh (supra).
3-B.  In fact, the boundary description is given by the plaintiff in the plaint
schedule for the identity. This clears any cloud or confusion on the total
extent of S.No.834; the separate extents in S.No.834/A and 834/AA respectively
out of it. The plaint schedule speaks for the 1820 sq.yards which is nearly
Ac.0.15 gts., out of total Ac.0.18 gts., of S.No.834/AA only and not for
S.No.834/A.  The plaint schedule eastern boundary is Miryalaguda to Huzurngar
road not in dispute and on north, way leading to police quarters also is not in
dispute. Thus, if at all to dispute is, what described of the western and
southern boundary of plaint schedule as site and shops belongs to said B.Pedda
Sathyanarayana Reddy (plaintiff's vendor). In fact that also even disputed
cannot be given credence if the remaining portion of S.No.834/AA Ac.0.03 guntas
and S.No.833/AA Ac.0.14 guntas are the plaintiff's suit schedule-western and
southern boundaries. From the above, it is to consider the contention of the
defendants. In the  written statement filed by the defendants detailed supra,
there is no dispute on the identity and existence of the plaint schedule
property from what 1st defendant mentioned that was adopted by other defendants,
from the 3rd line onwards is "The true facts are vendor of the plaintiff has no
concern with the suit schedule land".  Hence, the sale deeds executed by the
vendor in favour of the plaintiff alienating for the suit schedule land do not
confer any title on him. The vendor of the plaintiff was also not in possession
of the suit schedule lands either on the dates of execution of sale deeds or
earlier to that. The vendor of the plaintiff filed O.S.No.123 of 1993 on the
file of the District Munsif, Huzurnagar against the defendants herein in respect
of the suit schedule land for issue of perpetual injunction order restraining
them from causing interference with his possession and enjoyment of the same."
There is no single sentence even thereafter in the written statement disputing
the identity and existence of the plaint schedule property. Said written
statement filed was on 04.09.1996 which was nearly two years after the suit
filed on 29.09.1994(and three years after other injunction O.S.No.123 of 1993).
The evidence of the plaintiff as P.W.1 was commenced on 17.01.1997 and the
cross-examination of P.W.1 started on 14.02.1997 and completed on 26.02.1997. It
was thereafter the additional written statement was filed by 1st defendant
adopted by other defendants and therein also it was contended that the area
measuring about Ac.0.14 guntas covered by the suit site as per plan annexed to
the written statement (Ex.A.22) is in possession and enjoyment of the defendants
and the plaintiff and his vendor (plaintiff in O.S.No.123 of 1993) never in
possession of said land.
13-C. In the P.W.1's evidence in chief, he deposed that he purchased the plaint
schedule property in three occasions total 1820 sq.yards (Exs.A.1 to A.3=A.4 to
A.6) from his vendor, while he was in possession and enjoyment of the same and
obtained possession pursuant to the sale and applied for permission to the
grampanchayat to construct compound wall and raised temporary hut and when the
defendants being opponents politically interfered and objected for his working
in suit land; he filed the suit originally for permanent injunction. It was at
the P.W.1's cross examination brought on record that one Banda Sarva Reddy's two
sons were Pulla Reddy(father of Chinna Sathyanarayana Reddy i.e. father in law
of 1st defendant) and Kanna Reddy(father of Ranga Reddy-P.W.3) and they
partitioned in equal shares. Even from P.W.1's further cross-examination, there
is nothing to say said Pulla Reddy and Kanna Reddy got any lands or site in
S.No.833/AA and 834/AA; but for in S.No.833, S.No.833/A and 834 and 834/A; in
which S.No.833/AA and 834/AA not at all part. Same is also clear from Ex.A.7 and
A.14 and from Ex.A.17 and 17. The Ex.A.7 =A.14 kasrapahani of the year 1954-55
also contains the name of the father of the plaintiff's vendor, Banda Narsaiah
and it also speaks said Narasiaiah (Narasireddy) referred as pattadar and in
possession and enjoyment particularly those lands in Sy.No.834/AA total Ac.0.18
guntas is established. The Kasrapahani is in fact a document of title as held by
a Division Bench of this court in Joint Collector, Rangareddy District Vs. Syed
Ahmed Hussain37 observing that at para-14 that it is the settled proposition of
law that kasrapahani is  a record of rights and entries therein shall be
presumed to be correct unless contrary is shown as laid down by the Apex Court
in Shikhar chand jain Vs.digamber jain prabhand karini38.  It is further
observed that the kasrapahani once prepared is a record of title and the same
cannot be altered without there proceedings being issued by the competent
authority for the correction.  It was also held that subsequent to the
Kasrapahani prepared, any revenue record amended without amending kasrapahani
cannot be to the advantage of the person.  It was also observed that correction
of kasrapahani of the year 1954-55 without there being order passed to the said
effect cannot be given any credence.
13-D. Coming to the boundary description in the O.S.No.66 of 1994, it is only
for Ac.0.15 guntas (1820sq.yards) out of Ac.0.18 guntas in S.No.834/AA and
whereas the boundary description in O.S.No.89 of 1995(O.S.123 of1999) is for
Ac.0.32 guntas in S.No.834/AA and Ac.0.14 guntas in S.No.833/AA together) a
single plot. Thus those will not tally on all four sides. Ac.0.15 guntas in
S.No.834/AA for subject matter of O.S.No.66 of 1994 which is only part of
subject matter in O.S.No.123 of 1993(O.S.No.89 of 1995) of Ac.0.18 guntas in
S.No.834/AA and Ac.0.14 guntas in S.No.833/AA.  The fact that the eastern and
northern boundaries admittedly tallying and not in dispute of Miryalaguda-
Huzurnagar road and way leading to police quarters. The western and southern
boundary described in O.S.No.66 of 1994 is remaining land of plaintiff's vendor
i.e. out of Ac.0.32 guntas, the remaining extent of about Ac.0.17 guntas
(Ac.0.32 guntas-(minus Ac.0.15 guntas=1820 sq.yards). Even the western side of
it, there is a Sarveswara theatre that is the site sold by defendants and there
is a suggestion to D.W.1 also by plaintiff herein of in between there is site of
the plaintiff's vendor remaining. The trial Court failed to notice these aspects
in mentioning of the suit schedule western and southern boundary as site with
shops of the plaintiff's vendor; that no way shows any discrepancy. In the
cross-examination of P.W.1 by the defendants, he denied the suggestion of the
defendants are in possession of the suit property being titleholders or
plaintiff's vendor has no title and possession over the property and he has
thereby no possession or title over the property and the additional written
statement version was also in turn to it.  It is in fact while admitting
existence and identity of suit property by the defendants, said cross-
examination was made by claiming they got title over the property. Later, the
Ex.A.25 certified copy of GPA executed by father of defendants 2 to 4 was
confronted to the P.W.1, the contents of which even no where show any land owned
in S.No.833/AA and 834/AA; but for S.No.833/A and 834/A. To say the defendants 2
to 4 filed in Mandal Revenue Officer's office, Garidepalli dated 03.08.1994 that
their father late Chinna Sathyanaryana Reddy is owner and possessor jointly with
their mother Lakshmama(D.1) for several survey numbers which include Sy.No.833/A
to the extent of Ac.0.13 guntas and Sy.No.834/A to the extent of  Ac.0.17 guntas
and they have no objection to transfer the land of their father in the name of
their mother Lakshmamma to issue pattadar passbook.  It is based on that also
the defendants lay a claim to the suit property in S.No.834/AA; though it
nowhere speaks any extent in Sy.No.834/AA.  Even in their cross-examination they
confronted the P.W.1 with Ex.A.24 registered G.P.A. executed in his favour by
their father Chinna Sathyanararyana Reddy and his sister wherein the lands
referred in schedule were Sy.No.834/A2 to the extent of Ac.0.17 Cents and Sy.No.
833/A2 to the extent of Ac.0.13 cents but not for 834/AA (O.S.66 of 1994 (suit)
property) and  833/AA (both are subject matter of O.S.No.89 of 1995(O.S.No.123
of 1993).  The Ex.B.22 cancellation of the GPA by them also speaks same survey
numbers of said (Ex.A.24) GPA and not reflecting 834/AA(suit property in
O.S.No.66 of 1994). Same is also the case with regard to Ex.A.26 Form-IA claim
that only referring S.No.834/A of Ac.0.17 cents and Sy.No.833/A of Ac.0.14
cents, so also from Ex.A.27 Form-I, Sy.No.834/A.2, 834/A3, 834/A4 and 833/A3 and
833/A.4 and not for S.No.834/AA.(S.No. 834/AA shows name of plaintiff for Ac.015
guntas of suit property).
13-E. Ex.A.23 is the pattadar passbook in favour of the plaintiff issued on
01.07.1994 for the extents viz., Ac.0.06 cents in Sy.No.715 and Ac.0.15cents
(suit property) in Sy.No.834/AA and the alignment of Sy.No.834 is also shown
therein which reflects immediately to the South of Sy.No.834, Sy.No.833 is lying
and immediately to the North, Sy.No.835 is lying and the alignment also shows
the entire Sy.No.834 is in uneven manner. No doubt the suit schedule property of
Ac.15 guntas in S.No.834/AA out of Ac.0.18 guntas in S.No.834/AA is not
specifically indicated therein out of Sy.No.834, but for mentioned underneath to
say as part of it. The extent of S.No. 834, as per Ex.A.7 is more than an acre
and Sy.No.834/A, 834/AA are even not part of it as detailed supra. Of which
S.No.834/A is Ac.0.35 guntas and in sub division therein as A2 is among it and
so far as Sy.No.834/AA, it is 18 guntas as referred supra, it is standing in the
name of plaintiff's vendor's father Narsimhulu @ Narsi Reddy. Apart from, it the
plaintiff placed reliance upon Ex.A.8 to A.1-and A.15 revenue adangals.
13-F. In Ex.A.8, it is mentioned that Sy.No.833/A is an extent of Ac.0.26
guntas, Sy.No.833/AA Ac.0.14 guntas, Sy.No.834/A an extent of Ac.0.35 guntas. It
is specifically noted the  Sy.No.834/AA Ac.0.18 guntas in the name of B.Pedda
Sathyanarayana Reddy (which the plaintiff claims his vendor's). So far as
Sy.No.833/A, 834/A showing the names of B.Sathyanarayana Reddy, Buchamma etc.,    
concerned, they are as per Ex.A.24 GPA, the 1st defendant's husband and sisters-
in-law. Even that is taken into consideration, it discloses Sy.No.833/A is
different to Sy.No.833/AA and S.No.834/A is different from Sy.No.834/AA as those
are different extents in different persons' names.  The same is also the
position with Exs.A.9 and Ex.A.10 adangals. Even from Ex.A.11 adangal for
Sy.No.834/AA extent of Ac.0.18 guntas in the name of plaintiff's vendor B.Pedda
Sathyanarayana Reddy s/o Narsi Reddy; so also from Ex.A.12 the name of
plaintiff's vendor B.Sathyanarayana Reddy S/o Narsi Reddy for Sy.No.833/AA  an
extent of Ac.0.14 guntas. The Sy.No.834/AA is in an extent of Ac.0.18 guntas is
also clear from Ex.A.13. Ex.A.14 Kasrapahani which is equal to Ex.A.7 also
showing the plaintiff's vendor's father B.Narsi Reddy as B.Narsaiah (pattadar)
for item No.3 and so far as item No.2 Sy.No.834/A an extent of Ac.0.35 guntas
noted B. Narsaiah original pattadar and B.Pullaiah person in occupation.
13-G. The 1st defendant's husband is by name Chinna Sathyanarayana Reddy S/o
Pulla Reddy. It is to say at the cost of repetition that from Ex.A.7=A.14
kasrapahani entries 834/A is in the name of 1st defendant's husband's father
Pulla Reddy and one  B.Kanna Reddy as enjoyer who purchased from original person
Banda Narsaiah. The Sy.No.834/AA of Ac.0.18 cents stands in plaintiff's vendor's
father's name as pattadar as well as person in possession. Even from Ex.A.16
B.Sathyanarayana Reddy S/o Pulla Reddy was shown along with Kannaiah,  Lachamma,    
Buchamma, Chandramma and Alivelamma etc., for Sy.No.833/A and 834/A only and not  
for S.No.833/AA or S.No.834/AA and from the resettlement register.  Even Ex.A.17
adangal shows 834/AA in the name of plaintiff's vendor B. Sathyanarayana Reddy
and 834/A in the name of B.Ranga Reddy, B.Sathyanarayana Reddy s/o  Pulla Reddy,
B.Lakshmamma W/o B.Chinna Sathyanarayana Reddy and there is also mention at    
colomn No.13 that there is a cinema talkies in the Sy.No.834/A.  If we refer
this entry with Ex.B.2 and with reference to Ex.A.23 pattadar passbook of the
P.W.1-plaintiff B.Pulla Reddy s/o Chandra Reddy wherein alignment of Sy.No.834
shown if correlated to Ex.B.2 with Ex.A.17 Sy.No.834/A and 834/AA respectively,
the cinema talkies is showing lying in part of Sy.No834/A and not in any extent
of S.No. 834/AA. It is to say, S.No.834/AA is north-east of total Sy.No.834 and
S.No.834/A and that is also correlating with plaint schedule northern and
eastern boundary descriptions which are not in dispute even by the defendants.
The trial Court's judgment referring to the commissioner's plan also speaks
correctness of the northern and eastern  boundaries which are East:
Miryalaguda-Huzurnagar R& B road, North: police quarters and it further
correlates to say Sy.No.833 is to the South of Sy.No.834.
13-H. From this background, if we peruse the Ex.A.22 memo filed by the 1st
defendant's husband late Banda Chinna Sathyanarayana Reddy, in the suit filed by
the plaintiff's vendor B. Pedda Sathyanarayana Reddy, in I.A.No.247 of 1993 in
O.S.No.123 of 1993 by clearly mentioning that he has nothing to do with the suit
claim for Sy.No.834/AA, 833/AA is correct and the same is also substantiating
his version from Section 164 of Cr.P.C. statement recorded by Magistrate in the
crime regarding his alleged kidnap attributed against the plaintiff, however,
that he was not kidnapped by the plaintiff but for staying at his sister's house
by name Kotha Buchamma of Ganugabanda, a different village. He stated further
that he was apprehending danger to his life from his wife and sons who are the
defendants to the suit. No doubt it cannot be taken as outright admission to
bind against the defendants herein, but for appreciating as to in what
circumstances he was to so state and at what influence. To say therefrom of the
so called kidnap by the plaintiff might not be true and in that angle, his memo
of he has nothing to do with the property covered in O.S.No.89 of 1995(123 of
1993) in Sy.No.833/AA, 834/AA has to be given credence as additional piece of
evidence as an independent corroboration to the plaintiff's proved case.  In
that view of the matter by filing Ex.B.2 plan without correlation of the entire
Sy.No.834, and 834/A ,833/A sub divisions land; neither it destroys the
plaintiff's case nor improves the defendants contest so far as the plaint
schedule in O.S.No.89 of 1995(123 of 1993) wherein the suit schedule in
O.S.No.66 of 1994 is part that is to say Sy.No.834/AA an extent of Ac.0.15
guntas out of Ac.0.18 guntas not to mention S.No.833/AA Ac.0.14 guntas = Ac.0.32
guntas in total.  Even coming to the Ex.B.3 relied on by the defendants of the
so called ROR extract, it speaks Ac.0.14 guntas and 0.18 guntas in the name of
Banda Sathyamaiah (it reflects for Sy.No.833/AA and 834/AA respectively) and the
other extents Ac.0.35 guntas and Ac.0.26 guntas concerned (it reflects
Sy.No.834/A and 833/A respectively). Thus, Sy.No.834/A of Ac.0.35 guntas and
S.No.834/AA of Ac.0.18 guntas are separate and independent is also crystal clear
from the Kasrapahani Ex.A.7=Ex.A.14 and with Ex.A.15 chowfasla.
13-I. The value of kasrapahani as it already detailed above as  document of
title. Thus, it proves the title of plaintiff's vendor and in turn of plaintiff
under Ex.A.1 to A.3=A.4 to A.6 read with A.7=A.14 and Ex.A.15 the names
Chandramma, Lakshmamma, Sathyamaiah, kannaiah reflects the 1st defendant's  
husband and sisters-in-law for Sy.No.833/A and  Sy.No.834/A and the other name
reflects plaintiff's vendor from combined reading of Ex.B.3 with A.7 as detailed
supra. So also from the Ex.B.4 so far as Sy.No.833/AA an extent of Ac.0.14
guntas and 834/AA  an extent of Ac.0.18 guntas stand in the name of
B.Sathyanarayana Reddy (plaintiff's vendor) as owner.  No doubt, S.No.833/A and
S.No.834/A show B.Ranga Reddy for half in occupation and B.Sathyanarayana Reddy  
for half in occupation. Even it is not correlating to the defendant much less
1st defendant's husband Chinna Sathyanarayana Reddy S/o Pulla Reddy, to claim
anything by them therefrom.
13-J. Even coming to any attempt of the defendants to correlate with the
additional written statement plea of there was a partition between 1st
defendant's husband Chinna Sathyanarayana Reddy, S/o Pulla Reddy, and one Ranga  
Reddy S/o.Kanna Reddy. It was specifically pleaded that her husband got only
Sy.No.833/A and 834/A.  It is not even the case of the defendants in either
claiming through the plaintiff or from any other person for S.No.834/AA and
833/AA.
13-K. Even from the Ex.B.8 Pahani filed by the defendants, it is correlating to
Ex.A.7 to say Sy.No.833/A is Ac.0.26 guntas and Sy.No.834/A is 0.35guntas stand
in the name of Banda Pulla Reddy. If it is Pulla Reddy, father of 1st
defendant's husband Chinna Sathyanarayana Reddy, then even the defendants can
claim only Sy.Nos.833/A and Sy.No.834/A and not for Sy.Nos.833/AA and 834/AA,
since those extents as items 2 to 4 of Ex.B.4 for Ac.0.14 guntas and Ac.0.18
guntas respectively (total of plaint schedule in O.S.No.123 of 1993) stand in
the name of B.Pedda Sathyanarayana Reddy i.e. plaintiff's vendor. Same is also
the position from Exs.B.6 to B.9. Even coming to the name mentioned Kannaiah @
B.Kannareddy S/o Sarva Reddy in Ex.B.10 that Kannaiah is reflected in Exs.B.8
and B.9 as in cultivation concerned, it is Chinna Sathyanarayana Reddy's
father's brother. Exs.B.10 and B.11 are also supporting the case of the
plaintiff, so also, from Exs.B.12 to 14,16 to B.18.
13-L. Coming to Ex.B.19 pattadar passbook in favour of 2nd defendant B.Pulla
Reddy S/o B.Chinna Sathyanarayana Reddy, it was at the 1st page end shows the
year 2010-2011,however, for colomn No.7 1st page shown issued as if on
01.07.1994 and the internal page shows only 833/A ,834/A of Ac.0.5cents and
Ac.0.10cents and not for any extent in Sy.No.833/AA and Sy.No.834/AA relating to
the plaint schedule. So also from Ex.B.20 revenue title deed in the name of 2nd
defendant.  Under Ex.B.21 corresponding under ROR Act, the extent in
Sy.No.834/AA Ac.0.15guntas of Garidepalli passbook issued in favour of plaintiff
(Ex.A.23) in 1994, they claim that one Bonda Kannareddy  and the appellant are
equal owners of Sy.No.834 and Sy.No.833 to patta for Ac.0.15 guntas  in
Sy.No.834/AA standing in the name of Bonda pedda Sathyanarayana Reddy  
(plaintiff's vendor) even the appellant is in possession for past 30 years and
Banda Pedda Sathyanarayana Reddy (vendor of the plaintiff) has no concern with
833/AA and 834/AA in his filing the suit O.S.No.123 of 1993 and the temporary
injunction granted was vacated in appeal and they wrongly obtained the entry in
the pattadar passbook and in the counter filed by B.Pulla Reddy S/o Chandra
Reddy and B.Pedda Sathayanarayana Reddy (the plaintiff's vendor) in opposing the
same saying B.Narsi Reddy F/o plaintiff's vendor is the owner and in possession
for 834/AA an extent of Ac.0.18 guntas and sold to the plaintiff out of it
Ac.0.15 guntas and for the balance Ac.0.03 guntas remained with him and they
were issued accordingly pattadar passbooks when the suit O.S.No.123 of 1993
pending.  It was therefrom the Revenue Divisional Officer, in his order stated
that, for Sy.No.834/AA an extent Ac.0.18 guntas, the pattadar Banda
Sathyanarayana Reddy S/o Narsi Reddy (vendor of plaintiff in O.S.No.66 of
1994=plaintiff in O.S. No.89 of 1995(O.S.No.123 of 1993)). When there is an
objection filed by the appellants regarding the dispute of the suit land and the
suit land is not the agricultural land but house site and the pattadar passbook
issued for the house site other than agricultural land is irregular, hence set
aside by directing the Mandal Revenue Officer, to conduct fresh enquiry.  Even
there is no finding that they are not the titleholders in setting aside the
pattadar passbook but for saying as it is housesite in use and not continued as
agricultural land and thus pattadar passbook issued is wrong. In the observation
of revenue entry is wrong he did not refer any permanent revenue record or
chowpalla or kasra pahani or sethwar in making any observation therefrom. Thus,
document no way improves the case of the defendants to claim title, much less
disproved the title of the plaintiff and his vendor for the suit schedule site
of Sy.No.834/AA concerned.
13-M. It is the settled law that an interim order of injunction pending suit,
whether modified or confirmed even in appeal against it is only to protect the
subject matter of the lis and co-terminus with the main lis but for to take any
assistance of any observations to substantiate any fact from the material on
record, those are of no independent value either to bind the trial Court in
final disposal or of this Court while sitting in appeal against said decree and
judgment of the suit, even entire matter is at large. So Ex.B.23 can no way help
the defendants.
13-N. Even coming to Exs.B.24 to 31, the land revenue receipts in Ex.B.24 of the
year 1977-78 only for Sy.No.833 and 834 as referred and not for Sy.No.833/AA and
834/AA. It is necessary to mention that, Sy.No.834/AA and 833/AA were even there
as per the kasrapahani of the year 1954-55 as discussed supra from Ex.A.7 and
A.14 and when such is the case, the Ex.B.24 cannot reflect the property covered
by the plaint schedule in O.S.No.66 of 1994 and O.S.No.89 of 1995(123 of 1993)
respectively; so also from Ex.B.25 tax receipt dated 25.06.1977, Ex.B.26 tax
receipt dated 19.06.1979, Ex.B.27 tax receipt dated 26.01.1981,Ex.B.28 tax
receipt, dated 26.01.1982, Ex.B.29 tax receipt dated 01.06.1984, Ex.B.30 tax
receipt dated 24.06.1980 and Ex.B.31 tax receipt dated 30.12.1985. Coming to
Ex.X.1 and X.2=Ex.B.19,B.20 respectively, a close perusal of Ex.X.1 when
compared to Ex.B.19 reflects that out of 8 items, item Nos. 7 and 8 of Ex.B.19
passbook shown in Ex.X.1 passbook as item Nos. 4 and 5 and it is not same but
similar passbook in the name of P.W.3 B.Ranga Reddy S/o Kanna Reddy  and it
shows the item No.5 for Sy.No.834 tampered by correction as AA with different
ink and overwriting.  However, coming to the title deed Ex.X.2 also there is
overwriting after 834 as A only that is to say in Ex.X.1 'AA' was overwritten
and in Ex.X.2 'A' was overwritten after original writing of Sy.No.834.  Whereas,
coming to Ex.X.3, it no way reflects Sy.Nos.834/AA and 833/AA but for
S.Nos.833/A and 834/A an extent of Ac.026guntas  and Ac.035guntas respectively
in the name of Banda Pullaiah might be 1st defendant's husband's father B.Pulla
Reddy and  when the plaintiff has no claim in Sy.Nos.833A or 834/A, so also his
vendor and the present O.S.No.66 of 1994  claim is not for S.No.833/A and 834/A;
but for proof of S.No.834/AA apart from Sy.No.833/AA is also subject matter of
suit O.S.No.No.89 of 1995(O.S.No.123 of 1993) of said vendor of the plaintiff.
Thus, the Ex.X.3 also of no relevancy to oppose the suit claims. Ex.X.4 is also
same to Ex.X.3 for the name mentioned B.Sathyamaiah S/o Pullaiah to say 1st
defendant's husband and the other names mentioned in the remarks colomn
B.Kannaiah, Sathyamaiah, Lachamma, Buchamma, Chandramma and Alivelamma        
respectively of 1st defendant's husband, sisters and brothers or cousins if any
including P.W.3's father Kanna Reddy. Even coming to Ex.X.5, it does not include
Sy.No. 833/AA or Sy.No.834/AA but for the extent mentioned of for Sy.No.833/A of
Ac.013 guntas and Sy.No.834 at one place as Ac.0.18 guntas and the other place
as Ac.0.15 guntas without consistency. Thus, from said documents relied upon by
the defendants even, there is nothing to show Sy.No.833/AA Ac.0.14 guntas,
834/AA Ac.0.18 guntas subject matter of O.S.No.89 of 1995 (O.S.No.123 of 1993)
of which in Sy.No.834/AA Ac.0.18 guntas is subject matter of the present suit
(O.S.No.66 of 1994) claim covered by Exs.A.1 to A.3=A.4 to A.6 supported by
Ex.A.7=A.14 apart from other entries in the revenue records.
13-O. Coming to Ex.B.1 sale agreement executed by 1st defendant's husband dated
24.06.1985 in favour of one Kusuma Serva Reddy, there is attestation of B.Pulla
Reddy among another and the schedule covered was only for Sy.Nos. 833/A and
834/A and not for S.Nos.833/AA and 834/AA even to say the plaintiff (B.Pulla
Reddy) herein attested said agreement, it is apart from the fact that mere
attestation cannot be suffice to attribute knowledge of the contents but for
proof of attestation regarding admission of execution and signing before the
person as per Sec.3 of the Transfer of Property Act. Even taken for arguments
sake, said attestation was with knowledge of contents, when it is not relating
to S.Nos.833/AA and  833/AA it has no bearing to oppose the plaintiff's suit
claim by the defendants much less to say the same operates as estoppel in any
manner against the plaintiff's suit claim through his vendor with right over the
suit property. The fact that the agreement is in 1985 and the plaintiff's title
for the suit property covered by Ex.A.1 to A.3 are of 1993 also no way
disentitle much less to contend as if  no title passed to plaintiff therefrom.
However, when it is not for Sy.No.833/AA much less 834/AA of the suit schedule,
it is not even sufficient for the defendants to contend therefrom that they are
in possession of any part of S.Nos.834/AA and 833/AA or to say that establishes
any concept of adverse possession so to claim. Even coming to Ex.X.6 sale deed
(dated 04.05.1987) a perusal of the schedule speaks the housesite is in
Sy.Nos.833 and 834 part of the extents shown and not any extent in Sy.Nos.833/AA
and 834/AA so also from Ex.X.7 sale deed (dated 04.05.1987) schedule; so also
from Ex.X.8 sale deed (dated 29.03.1989) schedule, so also from Ex.X.9 sale deed
(dated 29.03.1989) schedule and another sale deed of even date Ex.X.10 schedule
or Ex.X.11 sale deed (dated 04.05.1987) schedule besides nothing is legible
therefrom but for Sy.Nos.833 and 834 specifically mentioned including in words
on close reading without any sub division; so also from Ex.X.12 sale deed (dated
04.05.1987) schedule and also from Ex.X.13 sale deed (dated 04.05.1987)
schedule. Even coming to Ex.X.14 plan of 1987 which reflects only Sy.Nos.833 and
834 and not for Sy.Nos.834/AA and 834/AA.  Even coming to further cross-
examination of P.W.1, no doubt it is deposed that the suit schedule land is
triangular bit, bounded by Miryalaguda to Huzurnagar road on east and police
quarters on north. He no doubt deposed that on western side there is cinema
theatre. If it is to say there is cinema theatre, westwards it is correct. If it
is to say the western boundary is cinema theatre that is not correct as
plaintiff has no land upto cinema theatre but his western boundary site is the
vendor's remaining site of Ac.0.03 guntas out of the Ac.0.18 guntas in
Sy.No.834/AA since what he purchased from his vendor under the Exs.A.1 to A.3
was Ac.0.15 guntas and the southern boundary mentioned by him are shops of Banda
Chandra Reddy and B.Amruthareddy.
13-P. It is also reflecting from Exs.A.1 to A.3 sale deeds rectified by Exs.A.4
to A.6 are the vendor's remaining land to say the vendor's land in
Sy.No.833/AA(Ac.0.14 guntas) to correlate the same from the alignment of
Sy.No.834 with land to its south Sy.No.833 and land to its north Sy.No.835 as
per Ex.A.23 pattadar passbook enclosed plan in favour of plaintiff that reflects
the combined sketch for  Sy.Nos.833,834 and 835 of Garidepalli village. Even for
arguments sake as discussed including from the commissioner's plan by the trial
Court, the southern boundary is taken not correlated, it no way belie for the
existence of the plaint schedule and the identity of the schedule property of
plaintiff and his vendor in Sy.No.834/AA not to mention 833/AA as the
plaintiff's vendor's site is contiguous to its south and west.  It is to say
P.W.1 deposed in the further cross-examination that, the cinema theatre land is
partly in 1st defendant's husband's extent of about 8 to 10 guntas. It is also
as discussed supra that, it is only out of the land in Sy.Nos.834/A and 833/A of
the defendants' sold to their vendee, there is cinema theatre, so also noted as
part in one of the revenue adangals i.e. Ex.A.17 item No.1, Sy.No.834/A out of
Ac.0.35 guntas, dry, housesite in the name the defendants and their vendee as
per column No.12 and in column No.13 reference is there of the cinema theatre
therein.  It is thus clear that the theatre is only in Sy.No.834/A which is to
the west of 834/AA of the plaintiff and his vendor.
13-Q. Thereby from this evidence including in Cross-examination of P.W.1 with
reference to the documents also, it substantiates the suit claim and it no way
to the advantage of defendants to make any claim over S.No.834/AA of plaintiff
and his vendor. The contention of suit for possession with declaration of the
sale deeds, as valid and binding won't lie from denial of plaintiffs' title and
of his vendor by the defendants to say cloud on title; without seeking
declaration of title to clear cloud; is untenable. There is no any cloud on the
title of plaintiff and his vendor over S.Nos.834/AA and 833/AA from what all
discussed supra elaborately that proved the title of plaintiffs. Thus, once
plaintiffs' title claiming through his vendor is proved by preponderance of
probability, the burden shifts on the defendants to establish their right and
title or claim of adverse possession vide RVEE Gounder(supra). Further, there is
no proof of adverse possession against plaintiff and his vendor over suit
property from what is discussed above.  In fact, plaintiff as per above title
when entitled to possession for no proof of adverse possession and prescriptive
right, the relief can be granted. In this regard,P.W.1-plaintiff denied the
suggestion of hut in the suit land laid by the defendants, while reiterating he
laid the hut, so also the wooden boxes and denied the suggestion of the
defendants erected the wooden boxes, not after filing of  the suit, but before
filing of the suit. The other suggestion is that plaintiff has given wrong
boundaries. From what is discussed supra there is no difficulty to identify the
existence of plaint schedule property in the north-east corner Ac.0.15 guntas
out of Ac.0.18cents in S.No.834/AA and Ac.0.14 guntas in S.No.833/AA. He also
denied the suggestions of the  defendants are in possession of the suit schedule
property of Ac.Ac.0.15 guntas (1820 sq.yards) and not plaintiff, much less the
defendants dispossession of the plaintiff after filing of the suit. It is even
denied the other specific suggestion of for last thirty years prior to the date
of suit, the  defendants are in possession of the suit site might be  in their
say for 30 years to make any claim of adverse possession.  For that even, there
is no proof, as discussed supra, to establish any possession of them in suit
land of the plaintiff and his vendor at any point of time, or to say to knock
away the land of the defendants, the sale deeds Ex.A.1 to A.3 = A.4 to A.6 are
created.
13-R. P.W.2 Y.Anjan Reddy S/o Ranga Reddy also deposed that the suit  land which
is near to the police station of Garidepalli village was in possession of
plaintiff's vendor earlier, since his age of description and the defendants or
their predecessors never in possession and after purchase by plaintiff,
plaintiff is in possession. He deposed that, only few months before his giving
evidence, the 1st defendant constructed portion of the wall in a portion of the
site and there are no other persons in possession of the suit site and he knows
the facts as suit land is 150 yards near to his house in the same village. In
the cross-examination, he deposed that the suit land is in triangular shape
almost and Sarveshwara theatre is towards west of the suit land, one Ragi Reddy
and Chinna Sathyanarayana Reddy are brothers by courtesy and they got equal
rights in their land and the land covered by the theatre was sold by Chinna
Sathyanarayana Reddy (husband of 1st defendant) and the Malgies constructed by
B.Chandra Reddy, Ragi Reddy and Amrutha Reddy in the site sold by Chinna
Sathyanarayana Reddy, (husband of 1st defendant) and the land of Ragi Reddy was
on the western side  of Sarveshwara theatre. He denied the suggestion of the
suit schedule land is not that of B.Pedda Sathyanarayana Reddy, and his vendee
the plaintiff B.Pulla Reddy.  He denied the suggestion of the hut and the six
wooden boxes in the suit schedule site belong to the defendants or the hut was
not raised by the plaintiff or the plaintiff and his vendor have no concern over
the plaint schedule land or he is giving evidence by taking amount falsely.
Even from this cross-examination, it substantiates that the plaint schedule
property belongs to the plaintiff and it is out of total extent of his vendor
Pedda Sathyanarayana Reddy on the north-east portion near to the police station
and the defendants' land is only westwards and further south-west if at all.
That finding correlates from what is discussed supra to say, not only existence
of the plaint schedule is not in dispute but also the identity sufficiently of
the plaint schedule and the title over the plaint schedule of plaintiff and his
vendor is proved.
13-S. Coming to the evidence of P.W.3 B.Ranga Reddy S/o Kanna Reddy, he deposed  
that himself and husband of 1st defendant  partitioned their ancestral
properties and revenue records reflecting their name and they got each Ac.10-00
and he gave 2 acres to his sister and they obtained pattadar passbooks and he
knows the total extent of Sy.No.834 as Ac.1-13 guntas in which himself and
Chinna Sathyanarayana Reddy were having two shares and Pedda Sathyanarayana  
Reddy was having one share and their two portions are on western side and land
of Pedda Sathyanarayana is on eastern side, the land fallen to the share of
Chinna Sathyanarayana Reddy was sold for Sarveshwara theatre and the said land
is bounded by  northern side passage leading to Kodandapuram and in south
Miryalguda road and on west Sarveshwara theatre supra and in on eastern corner
there is police station and he knows sale transaction between the plaintiff and
his vendor Pedda Sathyanarayana Reddy and plaintiff in possession after his
purchase and six months prior to his evidence, 1st defendant by proclaiming as
succeeded to the lands she got electrified to the hut existing in the suit by
constructing a corner wall. In his evidence, the Exs.X.1 to X.5 are marked that
are referred supra. In the cross-examination, P.W.3 deposed that, the partition
between him and Chinna Sathyanarayana Reddy (husband of 1st defendant) was in
the presence of elders for Sy.No.833 and 834 and there was no survey taken place
at that time and his father Kanna Reddy also known as Kannaiah and Chinna
Sathyanarayana Reddy as Sathyamaiah and for the survey numbers 833 and 834 since  
1968 name of his father and Chinna Sathyanarayana Reddy noted and Sarveshwara
theatre situated on the western side of his share, that was sold to the theatre,
by Chinna Sathyanarayana Reddy. On the southern side of suit schedule land,
there are Mulgies of B.Chandra Reddy and Ragi Amrutha Reddy, and he does not
know whether that site was sold to them by Chinna Sathyanarayana Reddy and that
he sold some extents of his land to third parties.  He denied the suggestion of
the plaintiff or his vendor Pedda Sathyanarayana Reddy have got no sort of right
over the plaint schedule property or in order to grab the same by them and at
their instance, he deposes falsehood. He also deposed that the suit schedule
property is triangular bit and denied the suggestion of P.W.1 was never in
possession of the suit schedule. He also denied the suggestion that, the 1st
defendant installed six wooden boxes in the plaint schedule property prior to
the suit and the northern side passage to the plaint schedule leading to
Kodandarampuram is known as Donka.  
13-T. Even the P.W.4 Lingam Ramulu of the village deposed about the suit
schedule property belongs to Pedda Sathyanarayana Reddy who sold it to the
plaintiff and to its north there is kodandarampuram village passage and on east
there is road leading to Huzurnagar and on south some part was bounded by shops
and some part was bounded by Miryalaguda road and on west there is cinema
theatre and buses from Huzurnagar to Miryalaguda station being stopped before
the police station which is near to the suit land, that used to be in possession
of plaintiff's vendor Pedda Sathyanarayana Reddy, since his age of description
and he is getting some work in it and thereby  he knows the facts. He deposed
that 3 months prior to his giving evidence, the 1st defendant was proclaiming in
the village that she won the case and got electrified the hut existing in the
suit site and also in the corner raised a wall and raised some wooden bunks and
the suit land  does not belong to the defendants or their predecessors and they
were never in possession. In the cross-examination, he denied the suggestion of
neither plaintiff nor his vendor ever in possession, but for 1st defendant's
husband to the suit land and he is deposing falsely or  the hut raised by the
defendants in the suit land and not by plaintiff or the six wooden shops were
there in the suit land even prior to the filing of the suit or the defendants
were letting out those shops even  before filing of the suit. He deposed that,
the suit land is in triangular shape and denied suggestion of the plaintiff and
his predecessor Pedda Sathyanarayana Reddy were never in possession or he is
giving false evidence to support their case. Even from his evidence, there is
nothing to dispute identity and existence of plaint schedule much less to
discredit the evidence of P.Ws. 2 to 4 so far as the plaintiff's possession and
enjoyment since his predecessor over the suit site concerned, but for any little
inconsistency in describing the western boundary as cinema theatre in stead of
showing in between if at all there is some other site of the plaintiff's vendor
might be inconsistency for their not knowing only 15guntas out of 18 guntas in
Sy.No.834/AA that was purchased by the plaintiff from his vendor Pedda
Sathyanarayana Reddy.
13-U. In addition to what is discussed above even from the evidence of 1st
defendant as D.W.1, she deposed that the plaintiff and his vendor not concerned
with Sy.No.833 and 834 and therein her husband Chinna Sathyanarayana Reddy and  
his cousin Ranga Reddy got each Ac.0.31 cents not by actual partition by
measuring but by assumption their partition in showing western half fell to the
share of Ranga Reddy, eastern half   to her husband Chinna Sathyanarayana Reddy
and they sold their land to Kusuma Sarva Reddy of extent of 1600 sq.yards and
another 200 sq.yards to Banda Chandra Reddy and another 200 sq.yards to
R.Venkatalakshmi and there after there remained about 13 to 14 guntas of land
Sy.No.833 and 834 of them and she constructed a hut and leased out to one Raju
and also placed six wooden boxes and leased out to Sreenu, Pichaiah and Mysaiah,
about ten years back and for the past thirty years they are in possession of the
suit schedule land and the plaintiff and his vendor Pedda Sathyana Reddy have no
right over it and it is her land and not that of them from boundary shown in the
plaint schedule it is not for the suit land.  Exs.B.1 to B.31 already discussed
supra which no way reflect much less relate to suit land of Sy.No.834/AA. In the
cross-examination, she deposed that she cannot say what were the documents she
filed before the RDO, Miryalaguda against the issue of the pattadar passbook in
favour of the plaintiff and she also filed a revision before the Secretary,
Panchayat Raj Department, against the permission for construction of wall
granted to the plaintiff in suit site with claim that they are owners for 833
and 834 half share and for the remaining half B.Kanna Reddy is owner and
plaintiff has no concern.  She deposed that in the said grounds of appeal, there
is no reference of Sy.No.834/AA so also in the caveat petition she filed. She
denied the suggestion of she is not in possession of Sy.No.834/AA but for
plaintiff. She deposed that in the land sold by them a cinema hall constructed
and she does not know whether any land to the north of cinema hall is in the
occupation of any purchasers to whom they sold. She denied the suggestion of
prior to the plaintiff's purchase of the suit land, plaintiff's vendor was in
possession and enjoyment being the owner and after C.M.A. against the temporary
injunction, she placed the wooden bunks in the suit site pending suit.  She
denied the suggestion that, the plaintiff laid the hut in the suit site even
before filing of the suit. She deposed that memo was filed by her husband in
O.S.No. 123 of 1993 (renumbered as O.S.No.89 of 1995) stating that the land in
Sy.No.834/AA and 833/AA belongs to Pedda Sathyanarayana Reddy.  She added that  
it was obtained by coercion and got filed in the Court. In fact, there was no
such suggestion to the plaintiff-P.W.1 even it is marked in his evidence in
cross-examination and having admitted the memo duly filed. Now after several
years, she cannot say that, it is obtained by coercion. That memo also clearly
admits that, the defendants have no claim over Sy.No.834/AA of Ac.0.18cents in
which the plaint schedule of Ac.0.15 guntas is part of that belongs to
plaintiff's vendor Pedda Sathyanarayana Reddy from whom the plaintiff purchased
as the memo was given in favour of plaintiff's vendor by the 1st defendant's
vendor in the suit filed by the plaintiff's vendor against them as she admitted
supra. To say that it was obtained by coercion, there is no basis.  Thereby, it
is a clear admission within the purview of O. XII Rule 6 CPC that cannot be
ignored being relevant and admissible under Section 17 of the Indian Evidence
Act in its substantiating the suit claim of plaintiff and belying the contest of
the defendants.  She denied the suggestion  of all their lands were sold by them
and to gain illegally over the suit property, she is deposing falsehood and even
memo given by her husband voluntarily she is deposing as if it was obtained by
coercion or threat.
13-V. D.W.2 Kusuma Sarva Reddy deposed that ten years back he purchased the land  
Sy.Nos.833 and 834 in the presence of P.W.1 and others and plaintiff was one of
the attestors to the Ex.B.1 agreement which is for Ac.0.30 guntas in Sy.Nos.833
and 834 and on eastern side of the land Ac.0.01gunta of land remained for
defendants and he obtained registered sale deed for 1600 sq.yards in stead of 30
guntas in the name of his daughter and two sons viz., Kusuma Narayana Reddy,
Kusuma Narsi Reddy and Aananthalakshmi and the remaining 14 guntas is in
possession and enjoyment of defendants with some shops in possession of one
B.Chandra Reddy, R.Venkattalakshmi to whom the defendants sold and plaintiff or
his vendor Pedda Sathyanarayana Reddy have got no sort of right over the
remaining land. In the suit land there is a hut raised by defendants and there
are six wooden boxes laid by the defendants with which the plaintiff and his
vendor no way concerned. In the cross-examination, he deposed that the land they
purchased in all 1800 sq.yards wherein the cinema theatre and some mulgies they
constructed by left over some site in Sy.No.835 and 834 covered by Ex.X.6 to
X.12 sale deeds executed by the 1st defendant's husband and his sons and
daughter. He deposed that they did not leave any space on western side of the
cinema hall upto the site they purchased and constructed compound wall to their
site and details of boundaries he does not know and there is also no land left
on northern side of the cinema hall belongs to defendants and he cannot say the
measurements of the cinema hall within the compound or the length and width upto
road on south. He denied the suggestion that  to help the defendants, he is
giving false evidence. Even taken from this evidence to say the defendants
erected the wooden boxes and raised hut he did not speak in which year they did
and there is no permission of the panchayat admittedly and there is no
documentary evidence to say the defendants' possession over any extent in the
suit land for any length of period to claim any adverse possession against the
plaintiff and his vendor.
13-W. D.w.3 B.Chandra Reddy deposed that he purchased 200 sq.yards  from husband  
of D.W.1 under sale deed of 1987 and constructed shops which is bounded by east:
the house of Ragireddi Amrutha Reddy, West: opposite side of cinema hall of
K.Sarva Reddy, south: road and North: land of defendants.  To say that on the
north there is any land of defendants, there is no basis. To say that from the
date of his purchase in the said land there were wooden boxes what he purchased
was in the year 1987 and his evidence was in the year 1997,and not beyond 12
years even. By other breadth, he deposed that, those wooden boxes were
constructed by defendants only 7 years back. Even as per the defendants, it is
subsequent to the sale deed only, the wooden boxes were laid.  Even from this,
there is no possession and enjoyment much less with animus to claim adverse
possession over statutory period.  His saying of the plaintiff has no land
adjacent to the land of defendants or the land is in possession and enjoyment of
the defendants is only of 7 or 8 guntas, the same is incorrect. The suit land is
in fact, Ac.0.15 guntas out of Ac.0.18 guntas in Sy.No.834/AA, apart from
Ac.0.14 guntas another extent also covered in the plaintiff's vendor suit
O.S.No.123 of 1993 and as such even from his say of defendants in possession of
7 or 8 guntas, it is no way suffice to say their possession is of the suit land.
He denied the suggestion of the wooden boxes are laid only 8 months back. He
denied the suggestion that he is speaking falsehood.
13-X. Even coming to evidence of D.W.4 R.Venkatalakshmi who purchased 300
sq.yards from the husband of D.W.1 but got registered only  for 200 sq.yards;
for saying on north-east to it the defendants got land which is the suit land
with wooden shops and hut for the past ten years and neither the plaintiff nor
his vendor Pedda Sathyanarayana Reddy got any land there to her knowledge, that
is not even suffice to set up adverse possession. In the cross-examination, she
deposed that she and D.W.1 are friends and relatives. She denied the suggestion
of she is deposing falsehood despite the wooden shops laid by the defendants
only 8 months back and the hut existing in the suit site constructed by the
plaintiff 4 years ago, only to help the defendants. Even from her evidence to
say the defendants in possession with hut and bunks only for the past ten years
to the date of her evidence in 1997 and not before and when defendants have no
title for Sy.No.834/AA as discussed supra and no possession over the statutory
period they cannot claim any right much less to oppose the suit claim. Even
coming to the D.W.5's evidence concerned; he deposed that in one of the wooden
shops in the suit site, he is running a barber shop that was erected by
defendants 9 years back apart from other adjoining 5 shops there and there is
also a hut erected about four or 5 years back and hence the disputed site is
that of defendants. Even from this evidence, the defendants have no possession
much less over statutory period and in the cross-examination, he denied the
suggestion that he started running Saloon shop in the wooden bunk only 4 or 5
months prior to his evidence. He deposed that, he did not pay any professional
tax but for only this year. He denied the suggestion of as there was no bunk
earlier, there was no professional tax paid by him but for this year for the
bunk there only for past few months erected running.  Thereby this evidence also
belie the defendants claim of the bunks constructed some time prior to the
filing of the suit by defendants. In fact, it supports the plaintiff's claim of
the bunks forcibly erected by the defendants after filing of the suit.
13-Y. D.W.6 B.Ram Reddy deposed that he knows the disputed land that belongs to
Chinna Sathyanarayana Reddy and Ranga Reddy and not of plaintiff and his vendor
Pedda Sathyanarayana Reddy, in Sy.No.833 and 834. He deposed that the D.W.1  
placed wooden boxes and also the hut long back. However, he did not say how long
back. Even from this, it is D.W.1 and not her husband that erected in his
lifetime and husband of D.W.1 died only pending the suit O.S.No.89 of
1995(O.S.No.123 of 1993) in the year 1996, as can be seen from the memo filed
and recorded of the legal representatives also on record that also substantiates
the plaintiff's claim and belies the defendants contention, apart from  his
cross-examination evidence is that he and plaintiff worked as panchayat ward
members, though denied the suggestion of that they are rivals to plaintiff and
out of that enmity, he is deposing falsehood. He denied the suggestion of the
wooden shops are placed only 4 or 5 months back in the suit site and the hut
erected by the plaintiff was more than 2 1/2 years prior to his evidence.  Said
constructions even those made by D.W.1 in the plaint schedule property are thus
liable to be removed if the defendants want to take away the material, else for
no protection they are entitled under Section 51 of the Transfer of Property Act
for the same, the plaintiff can cause remove through Court of law and take
vacant possession, if not willing to take possession with the constructions as
form part of the land concerned. Same is also the position with regard to any
constructions made by the (5th defendant) 5th respondent (Smt. R.Sailaja) who
was implead on merits and contest by respondent Nos.1 to 3 of the appeal, as per
orders in ASCMP No.2565 of 2011 dated 04.11.2013, from her non-appearance
despite notice served to have any say to the application. Thus any alienation in
her favour by other respondents for any part of the plaint schedule property
will not confer any rights being hit by Section 52 of the T.P.Act. on the
principle and doctrine of lis pendence.  She also cannot claim any protection
under Section 52 of the T.P.Act or as bonafide purchaser.

14. Therefrom, from the evidence let in by the defendants, it no way improves
the defendants case even taken for arguments sake the defendants are in
possession of the suit land, as the suit is for recovery of possession and
plaintiff established his title and of his vendor from the material on record as
discussed supra and the defendants could not establish that they and their
predecessors got any right or possession over the land in Sy.No.834/AA and
833/AA in which the suit land is part and the suit land identity also cannot be
disputed so also its existence since proved and the plaintiff proved his title
and entitlement to possession, the trial Court went wrong in dismissing the
plaintiff's suit in stead of decreeing having also held at page 73 of the
Judgment about the existence of the land in S.No.833/AA and S.No.834/AA.
Accordingly, the Points 1 to 3 are answered in favour of the appellant(plaintiff
in O.S.No.66 of 1994) holding that:

a) The plaint schedule property of (Ac.0.15 guntas=1820 sq.yards which is on
north-east out of the plaintiff's vendor's property of Ac.0.18 guntas in
S.No.834/AA and to its west S.No.833/AA and that is nothing to do with the
defendants extents in S.No.833/A and 834/A and thus the defendants have no right
over the plaint schedule property of plaintiff through his vendor in S.No.834/AA
and the defendants have no way proved any adverse possession over it against the
plaintiff and his vendor;
b) The non-filing of appeal against O.S.No.89 of 1995(O.S.No.123 of 1993) by
plaintiff's vendor no bar for maintainability of the suit claim under appeal and
its maintainability;
c) The identity of plaint schedule property also proved by the plaintiff-
appellant;  and
d) The plaintiff is entitled to eject all the defendants (respondents to the
appeal) from the plaint schedule property with any structures or constructions
of them therein by its removal.

15. In the result, the appeal is allowed, however, with no costs by setting
aside the trial Court's dismissal decree and judgment and by decreeing the
plaintiff's suit claim declaring that the plaintiff got right and title with
entitlement to possession  pursuant to the Ex.A.1 to 3=A.4 to A.6 sale deeds
(with reference to Exs. A.7 and A.14 Kasrapahanis also) over the plaint schedule
property of Ac.0.15 guntas (1820 sq.yards) eastern towards north out of Ac.0.18
guntas in S.No.834/AA of Garidepalli village and the suit as filed is
maintainable and all the defendants (all the respondents to the appeal) are
liable to be evicted including any persons claiming through them and bound by
the decree and by directing the defendants(respondents) to vacate the plaint
schedule property within one month from today and deliver vacant possession by
removal of the constructions they made failing which the plaintiff(appellant) is
entitled to execute the decree and recover possession through Court of law with
costs against all the defendants-respondents.
16. Miscellaneous petitions, if any, in this appeal shall stand closed.
_______________________  
Dr. B. SIVA SANKARA RAO, J  
Date:    06-03-2014

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