Declaration of TITLE = By sporadic acts of tethering cattle or parking carts, if any, cannot be equated with having effective possession of the suit land with the plaintiff. The plaintiff can prescribe title to the property only in case he knew the actual owner and to his knowledge, the plaintiff has been in possession and enjoyment of the suit property. In the absence of there being real owner, who is known to the plaintiff, the question of prescribing title to the suit property may not arise. A person can prescribe title only against a real owner in case he is in possession of the property to the knowledge of the real owner. When the plaintiff has no title to the suit property and when he cannot prescribe any title to the suit property, the plaintiff is not entitled for declaration of title much less for recovery of possession of the same from the defendant. Simply because the suit site is appurtenant site belonging to no party, the plaintiff cannot claim that he is entitled for the same. The lower courts considered entire evidence on record and came to right conclusion against the plaintiff on title as well as possession.

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

S.A.NO.107 OF 2013

JUDGMENT:                                         

Unsuccessful plaintiff in both the courts below is the appellant in the second appeal.  He is owner of house bearing No.4-1-134.  The defendant/respondent is owner of another house bearing No.4-1-189.  The disputed site is 22.67 sq. yards of vacant site in front of and to the south of the plaintiff's house.  It is occupied by the defendant who constructed a room together with latrine and bathroom.  The property is located in Basaweshar Street, Zaheerabad Town of Medak District.  In those circumstances, the plaintiff filed the suit in the trial court for declaration of title and for recovery of possession of the suit property.  After trial, the trial court dismissed the suit and the lower appellate court dismissed the appeal filed by the plaintiff. 

2.     In this second appeal, it is contended by the appellant's counsel that the suit site of 22.67 sq. yards is appurtenant site of the plaintiff's house and the plaintiff has been using the same for tethering cattle or for placing carts etc. and that he acquired title by prescription as he has been in possession of the same for over a statutory period.  On the other hand, the defendant/respondent contended in the courts below that the suit site belongs to him and that he constructed room together with latrine and bathroom therein with permission of Municipality.  But from the documents filed by the defendant, it is evident that Municipality gave permission to the defendant for such construction in house bearing No.4-1-189 only and not in 4-1-183 or at any other place.  Admittedly, the defendant has been in possession of suit property of 22.67 sq. yards by making constructions therein.  In a suit based on title and seeking possession, it is for the plaintiff to prove his entitlement for the suit site; and the plaintiff cannot rely upon infirmities in the defendant's plea or case. 

3.     It is contended by the appellant's counsel that the constructions made by the defendant in the suit site are creating obstruction for his passage and that they are causing nuisance to the plaintiff by way of emitting foul smell.  This is not a suit based by the plaintiff for abatement of nuisance.  This is also not a suit for interfering with the plaintiff's easementary right of passage etc.  There is some space left by the defendant for the plaintiff to come out of his house.  Therefore, the appellant's counsel cannot take up the said pleas for the first time in this second appeal, as they involve mixed questions of fact and law. 

4.     Admittedly, the suit site of 22.67 sq. yards does not belong to the plaintiff and he has no legal title to it.  He claims rights by prescriptive title in the suit property.  

By sporadic acts of tethering cattle or parking carts, if any, cannot be equated with having effective possession of the suit land with the plaintiff.  

The plaintiff can prescribe title to the property only in case he knew the actual owner and to his knowledge, the plaintiff has been in possession and enjoyment of the suit property. 

In the absence of there being real owner, who is known to the plaintiff, the question of prescribing title to the suit property may not arise. 

 A person can prescribe title only against a real owner in case he is in possession of the property to the knowledge of the real owner.  

When the plaintiff has no title to the suit property and when he cannot prescribe any title to the suit property, the plaintiff is not entitled for declaration of title much less for recovery of possession of the same from the defendant. 

 Simply because the suit site is appurtenant site belonging to no party, the plaintiff cannot claim that he is entitled for the same.  

The lower courts considered entire evidence on record and came to right conclusion against the plaintiff on title as well as possession.  

I find no error or legal error in the decisions of the courts below.  I also find that no substantial question of law arises for determination in this second appeal. 

5.     Accordingly, the second appeal is dismissed. 

_____________________________

SAMUDRALA GOVINDARAJULU, J

February 11^th, 2013

JSK/PRV

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

 

S.A.NO.107 OF 2013

February 11^th, 2013

JSK/PRV