THE HON’BLE MR JUSTICE V.SURI APPA RAO S.A.NO.127 OF 2014 DATED: 03.06.2014 Between:
Amudha Rajam And .. Appellant/Appellant/Plaintiff Akula Narsaiah .. Respondent/Respondent/Defendant THE HON’BLE MR JUSTICE V. SURI APPA RAO S.A.NO.127 OF 2014 ORDER:
This second appeal is filed by the unsuccessful plaintiff against the Judgment dated 22.10.2013 in A.S.No.21 of 2013 passed by the leanred II Additional District Judge, Karimnagar at Jagital, wherein the leaned Additional District Judge confirmed the Judgment of the trial Court dated 06.09.2012 in O.S.No.108 of 2006, which was filed for perpetual and mandatory injunction and for recovery of possession.
The plaintiff is the appellant and the defendant is the respondent.
The case of the plaintiff is that his paternal grand father by name Amuda Venkaiah owned an open land having extent of 413 sq. yards covered by Door house No. 1-2-83 situated at Dwarakanagar locality of Jagtial. After the demise of the original owner Amuda Venkaiah, the said property was equally partitioned among his three sons. After partition, for some time, they enjoyed their respective shares. One of plaintiff’s paternal uncle by name Amuda Rajam alienated his share by making into two equal parts and such alienation was made by him about 50 years back and plaintiff’s father viz. Amuda Lingam purchased one part and his another junior paternal uncle byname Amuda Basavaiah purchased the another part. Thereafter, Amuda Lingam and Amuda basavaiah remained over 413 sq. yards of open land and each of them had equal extent of open land i.e. 206.50 sq. yards and no part of land remained with Amuda Rajam. His junior paternal uncle Amuda Basavaiah for his necessities sold out his plot i.e. 206.50 sq. yards in favour of one Mahadev Lakshmi Rajam under a registered sale deed on 18.06.1961 and the said Mahadev Lakshmi Rajam in turn sold the same to the defendant under a registered sale deed dated 22.06.1965. In that registered sale deed, the vendor of the defendant instead of showing the extent of open land as 206.50 sq yards shown the extent as 236.50 sq. yards and the defendant taking advantage of the wrong extent ofland shown in the sale deed executed in his favour by Mahadev Lakshmi Rajam encroached an extent of 30.
sq. yards of land pertaining to plaintiff and out of that encroached 30 sq. yards of land over an extent of 17.50 sq. yards of land the defendant erected a structure and the same is shown in the red colour as ABCD in the schedule map annexed to the plaint.
The plaintiff therefore, filed the above suit for recovery of possession, mandatory injunction and perpectual injunction in respect of suit land shown in between A, B, E, C, D, F, and mandatory injunction for removal of structures and perpectual injunction in respect of common passage of 6 feet width by extending it to 14 feet and 12 feet width leading from North to South to the main road on southern side of his purchased part of land by encroaching 8 feet and 6 feet in width in his land and he also filed written statement denying the allegations made therein and pleading that Amudha Rajan S/o Venkaiah sold away one third share to his younger brother by name Amudha Basavaiah alone and as such the petitioner cannot claim half share in the total extent of land and that Amudha Basavaiah owned and possessed 275 sq. yards out of 413 sq. yards covered by H.No.1- 2-83 of Dwarakanagar locality of Jagtial including 69 sq. yards under unregistered sale deed sold to Mahadev Laxmirajam and the said Mahadev Laxmirajan sold an area of 275 sq. yards to him under a registered sale deed bearing document No.444/1965 dated 22.06.1965 by delivery of possession marked as Ex.A.1 and A.2 and B.1 and the suit land of 17.50 sq. yards shown in red colour at points A, B, C, D in the plaint schedule is part and parcel of his land purchased by him from Mahadev Laxmirajan and the suit is barred by limitation.
During the course of trial, on behalf of the plaintiff PWs.1 to 4 were examined and Exs.A.1 to A5 were marked. Defendant himself was examined as DW.1 and Exs.B.1 to B.11 were marked.
The trial Court after taking into consideration of the oral and documentary evidence available on record dismissed the suit holding that the plaintiff failed to prove his case.
Aggrieved by the same, the plaintiff preferred the appeal suit before the II Additional District Judge, Karimnagar at Jagtial. The learned II Additional District Judge on re-appreciation of the evidence on record, confirmed the judgment of the trial Court by dismissing the appeal suit. Hence, this second appeal.
Learned counsel for the appellant contended that the first appellate Court ought to have considered the evidence in right perspective. The trial Court ought to have seen that the suit schedule property is ancestral property and it is partitioned among father and paternal uncles of the appellant and the vendor of the respondent/defendant acquired only title to the extent of 206.50 sq yards from the paternal uncle Amuda Basavaiah of the appellant and the same is established by the evidence of DW1 coupled with Ex.A.1. Learned counsel contended that the appellate Court is not justified in holding that the suit is barred by limitation when there is ample evidence on record.
It is the specific case of the appellant-plaintiff that his junior paternal uncle Amuda Basuvaiah has alienated his plot admeasuring 206.50 square yards in favour of Mahadev Laxmi Rajam under a registered sale deed dated 18.6.1961. The said Mahadev Laxmi Rajam inturn alienated the entire purchased plot of land to the respondent-defendant under registered sale deed dated 22.6.1965.
But in the sale deed the vendor of the respondent had shown the extent as 236.50 quare yards instead of 206.50 square yards. Taking advantage of the wrong extent shown in the sale deed the respondent encroached 30 square yards belonging to the plaintiff as shown in the red colour, blue and green colour of the schedule.
The respondent has stated in the written statement that his vendor Mahadev Laxmi Rajam also purchased an extent of 69 square yards of land from Amuda Basuvaiah under simple sale deed which was part and parcel of the site purchased by him from late Amuda Rajam; that Amuda Basuvaiah initially sold 206.50 square yards of land to Mahadev Laxmi Rajam under registered sale deed dated 18.6.1961 thereafter the said Amuda Basuvaiah sold the remaining extent of 69 square yards under simple sale deed to his vendor Mahadev Laxmi Rajam . By virtue of the same, Mahadev Laxmi Rajam who was holding total extent of 275 square yards of land has sold the same to him and delivered the possession of the same to the respondent and he has been in continuous and uninterrupted possession of the same by constructing a house in the year 1965 itself to the knowledge of the appellant-plaintiff.
In the evidence the appellant-plaintiff has fairly admitted that after purchasing the site the respondent has constructed the house in the year 1965 itself and thereafter he has not made alterations or additions to the house. It is therefore clear in the year 1965 itself the respondent has constructed the house over the site purchased by him from his vendor Laxmi Rajam. It is not the specific case of the plaintiff that the respondent has encroached upon his site to an extent of 69 square yards. As seen from the tenor of the pleadings and the evidence of the plaintiff and his witnesses it indicates that when the said Laxmi Rajam vendor of the respondent purchased 206.50 square yards of land only, actually he is in possession of 275 square yards of land that is more than 206.50 square yards of land purchased under the sale deed under Ex.A.2. Unfortunately, in this case none of the parties filed any application for appointment of receiver to measure the schedule property with reference to the sale deeds of the plaintiff and the respondent and his vendor Laxmi Rajam. It is not the specific case of the appellant that the respondent has encroached his site to an extent of 69 square yards. The appellant in fact has not proved his title over the land which is in possession of the respondent over and above 206.50 square yards purchased under Ex.A.2 sale deed from his vendor Laxmi Rajam. In the cross examination the appellant has admitted that M. Laxmirajam sold 275 suqaure yards of land to the defendant in the year 1965 itself. The documents produced by the appellant would not disclose the extent of land to which the appellant is in possession of the property. The appellant thus failed to prove his title over the plaint schedule property and also further fail to prove that the respondent has encroached his property. Moreover the appellant has admitted that whatever the respondent has purchased he is in possession of the same since 40 years and has constructed a house long back and he has not made any additions or alterations after construction of the house about 40 years back. The trial Court as well as the lower appellate Court have dismissed the suit of the plaintiff only on the ground of limitation holding that the respondent has been in possession of the land over the red, blue and green colour portions of the land shown in the map appended to the plaint for the last 40 years within the knowledge of the plaintiff and therefore the suit filed by the appellant-plaintiff is hopelessly barred by limitation.
Learned counsel for the respondent relying on the decision of the Division Bench of this Court reported in CHAKICHERLA AUDILAKSHMAMMA v. ATMAKURU RAMARAO AND OTHERS
[1]
, submitted that the plaintiff failed to establish his title over the schedule property and thus failed to prove that the respondent has encroached his site.
In CHAKICHERLA AUDILAKSHMAMMA’s case ( 1 supra ), the Division Bench of this Court held that in a suit for ejectment the plaintiff is liable to be non-suited if he fails to establish his own title irrespective of the question whether the defendants have proved their case or not. In another decision relied on by the learned counsel for the respondent reported in DUDH NATH v. SURESH CHANDRA
[2]
, the Supreme Court held that the finding on the question of limitation recorded by the First Appellate court on appraisal of evidence after taking into consideration the entire circumstances in the case is a finding of fact which cannot be set aside by the High Court in the exercise of power under Section 100 CPC.
In the instant case the appellant himself admitted the possession and enjoyment of schedule property by the respondent from the date of his purchase in the year 1965 that immediately after purchase of the site by the respondent defendant he constructed house and that no additions or alterations were made to the house which was constructed about 40 years back. Moreover the appellant has failed to establish title or possession over the plaint schedule property and it is the respondent-defendant who is in possession of the property since more than 40 years. In that view of the matter the trial Court rightly came to the conclusion that the plaintiff is not entitled for the relief of recovery of possession, mandatory injunction and the same was confirmed by the appellate Court on proper reappraisal of the entire evidence on record.
This being the finding of facts arrived at by the Court below, I do not see any question of law much less substantial question of law in this Second Appeal. The Second Appeal is meritless and is accordingly dismissed. No costs.
JUSTICE V.SURI APPA RAO Dt: 3.6.2014 kvrm/kk THE HON’BLE MR JUSTICE V. SURI APPA RAO S.A.NO.127 OF 2014 DATE: 03.06.2014
[1] AIR 1973 AP 149
[2] AIR 1986 SC 1509