HON’BLE SRI JUSTICE M.S.K.JAISWAL A.S.No.282 of 1994 Between:-
Eswarapu Venkata Ramana .. Appellant And M/s.R.B.Sreeram & Co.Pvt.Ltd., Rep.by their local agent manager, Managarese House, Visakhapatnam And others .. Respondents.
JUDGMENT:
HON’BLE SRI JUSTICE M.S.K.JAISWAL A.S.No.282 of 1994 The plaintiffs, being unsuccessful in O.S.No.243 of 1983 on the file of the learned Principal Subordinate Judge, Visakhapatnam, in obtaining the decree for declaration and perpetual injunction in respect of the schedule property, have preferred the appeal assailing the Judgment and Decree dated 08-12-1992. The plaint schedule property comprises of 300 Sq.Yds.
2. The plaintiffs in their plaint averred that the plaintiffs 1 and 2 and the 2nd defendant are the natural undivided brothers and owners of the A Schedule land having succeeded to the same under Hindu Succession Act after the death of their father late Sreeramulu, who passed away in 1975. Late Sreeramulu, during his life time, purchased A Schedule property from Smt. Mosalakanti Thammayamma and Madhirala Subhadramma and he was in exclusive possession and enjoyment ever since the year 1941. During his life time, late Sreeramulu occupied the said land to the knowledge of the estate holders, the Mosalakanto people and reclaimed it and constructed huts therein and let out the same to the tenants. Thereafter, in the year 1952, he obtained a sale deed from the owners. Even in the sale deed it was mentioned that the vendee was in possession. Late Sreeramulu, during his life time, under an approved layout, has sold away the plots, but a strip of land admeasuring 300 sq. yards was kept by him for his exclusive enjoyment and that strip of land is extended upto the boundary stones, which were in existence even by the year 1952. The said land is not in a regular shape and it is full of ups and downs and not uniform. In that strip of land also late Sreeramulu constructed some thatched huts and let out the same to some tenants even as early as in 1941 and these tenants have been continuing to be in possession as tenants of late Sreeramulu and subsequent to his death as tenants of the plaintiffs and 2nd defendant. Late Sreeramulu constructed a pucca house and to the residents of those houses and to the tenants of the huts, the only accessibility to reach the Waltair main road is through the said strip of land which connects to Waltair main road. The 1st defendant purchased the land abutting the boundary stones on their eastern side but at no time there was any obstruction or interference caused by the 1st defendant to late Sreeramulu during his life time for his peaceful possession and enjoyment to the said strip of land. The said strip of land is part and parcel of the plaint A schedule and separately shown as B schedule. Even otherwise, the plaintiffs have perfected their title to the schedule property by adverse possession and 1st defendant cannot lay any claim. In the plaint plan, B schedule property was shown and also the lands of the boundary stones in green colour. To the east of the green mark shown in the rough sketch, the 1st defendant is having his land. For the first time on 12-8-1983 the 1st defendant exerting his force during the absence of the plaintiffs and the 2nd defendant forcibly got removed two boundary stones and also got foundation dug to the extent of 60 ft. for constructing a compound wall along the red line shown in the rough sketch attached to the schedule to deprive the plaintiffs their peaceful possession and enjoyment of the said B schedule land inspite of protest by the tenants and also by the owners of the houses. The plaintiffs were compelled to give report to the police and also to the municipal authorities. The 1st defendant is proclaiming that plaint B schedule land is part of the land covered by their sale deed and there is new dispute in respect of the title after a lapse of more than 2½ decades, the plaintiffs are obliged to seek declaration of their title to the plaint B schedule property. The 1st defendant has already dug a foundation to an extent of 60 ft. length and one and half ft. width in the plaint B schedule land and that land is described as plaint C schedule. The 2nd defendant is away at Hyderabad to attend his work in the Legislature and since he is not available, he was joined as proforma 2nd defendant. Hence the suit for declaration of the plaintiffs and the 2nd defendant’s title in plaint B schedule property and for consequential relief of recovery of possession of an extent of 10 sq. yards shown in C schedule in which the 1st defendant dug foundation and started constructing compound wall and also the relief of a permanent injunction restraining 1st defendant from interfering with the plaintiffs and the 2nd defendant’s peaceful possession and enjoyment of the plaint B schedule land and for mandatory injunction directing the defendants to fill up the foundation dug in the 10 sq. yards of land of the red line shown in the rough sketch.
3. The first defendant filed written statement denying the plaint averments and contended that the plaintiff is put to proof of purchase of the land in T.S.No.1032. This defendant is not interested in T.S.No.1032. The defendant submitted that the land purchased by late Sreeramulu is only in T.S.No.1032 as four plots as per their own sale deeds. This defendant is the owner of T.S.No.78 which is adjacent to T.S.No.1032. The so-called strip of land, which is described in the C schedule, is not in existence at all. Late Sreeramulu during his life time had partitioned the plots which he purchased under the sale deed in 1952 and sold the same after making layouts to various individuals right from 1972 and some of the plots were sold by the plaintiffs themselves subsequently in 1975. Therefore, there is no land belonging to late Sreeramulu in T.S.No.1032 which he has purchased in 1952 as it was alienated by means of registered sale deeds. The suit is of speculative character and engineered by the 1st plaintiff even though the other brothers of the 1st plaintiff were not sailing with him. The sheds which have been put in a portion of T.S.No.78 belong to the servants of this defendant and they are for their residence to enable them to be nearer to the 1st defendant’s quarters. T.S.No.1032 is a built up area. There is no question of accessibility of the Waltair main road for the sites sold away by the plaintiff. The 1st defendant himself has formed roads in his own site covered by T.S.No.78 and layout has been made and it is a private site and the plaintiffs have no right or access and their purchasers, dwellers or owners of the site have no right to use these lands. There is a regular tar road which has accessibility to the Waltair main road and all the hut dwellers and house owners are utilizing the existing roads and they never complained nor used the road situate in T.S.No.78 at any time. The defendants purchased the property in 1976 and continued to be in possession till today in the entire extent. The defendant was granted patta after the Allipuram estate has been taken over. This defendant has constructed a pucca wall all around his site. When there is some resistance by some hut dwellers, this defendant was compelled to file suit O.S.No.783/83 on the file of the I Addl. District Munsif’s court, Visakhapatnam and obtained a temporary injunction restraining them not to interfere with the site by 1st defendant. The Commissioner appointed at the instance of the plaintiff was categorical that the so-called B schedule which is part of A schedule is within T.S.No.78. The 1st defendant in order to safeguard the properties constructed the boundary wall. There are few encroachments in T.S.No.78 and the 1st defendant did not disturb the houses even though they have no right whatsoever. The plea of the adverse possession by the plaintiffs was denied. The plaintiffs having sold away the entire site to different people after 1959 have no interest or title in Ac.1-25 cents which was purchased by them in T.S.No.1032. The Court fee paid is not correct as each sq. yard is being sold at Rs.200/-. The plaintiffs cannot plead title by adverse possession. Hence, the suit is to be dismissed with costs.
6. On the basis of the above pleadings, the following issues were framed:-
1) Whether the plaintiffs have title to the suit B schedule property?
2) Whether the plaintiffs are in possession of plaint B schedule property?
3) Whether the plaintiffs perfected their title by adverse possession to plaint B schedule property?
4) Whether the plaintiffs are entitled for possession of C schedule property?
5) Whether the plaintiffs are entitled for the declaration of title as prayed for?
6) Whether the plaintiffs are entitled for the permanent injunction as prayed for?
7) Whether the plaintiffs are entitled for the mandatory injunction as prayed for?
8) To what relief?
7. During the course of trial, on behalf of the plaintiffs, the first plaintiff examined himself as P.W.1 and marked Ex.A.1. On behalf of the defendants, D.W.1 was examined and marked Ex.B.1 to Ex.B.3.
8. Upon hearing the arguments of both sides and having perused the oral and documentary evidence, by the impugned Judgment and Decree, the learned Principal Subordinate Judge, Visakhapatnam, held that the plaintiffs failed to establish their title over the property and consequently they are not entitled to seek the reliefs, as prayed for.
9. The point for consideration is as to whether the appellant/plaintiff is entitled to the decree as prayed for warranting interference with the impugned Judgment and Decree?
10. The parties herein shall be referred to as they are arrayed in the suit.
11. The two plaintiffs and the 2nd defendant are brothers. The 1st plaintiff is the appellant. The plaintiffs filed the suit for declaration of their right, title and interest over the plaint ‘B’ suit schedule property which comprises of 300 Sq.Yds., from out of a larger extent of the property which is shown as plaint ‘A’ schedule and which comprises of Ac.1.25 cents in Sy.No.1032. The plaintiffs further prayed for recovery of possession of plaint ‘C’ schedule property which comprises of 10 Sq.Yds. out of plaint ‘B’ schedule property. There is no dispute that the plaintiffs are the owners of plaint ‘A’ schedule property which is in Sy.No.1032. Similarly, there is also no controversy with regard to the fact that D.1 is the owner and possessor of the land in Sy.No.78, which is towards east of the land in Sy.No.1032. The plaintiffs and D.1 are having lands abutting each other. The allegation is that the 1st defendant has encroached upon the plaint ‘B’ schedule property and is trying to make construction on plaint ‘C’ schedule property by raising a compound wall. Hence, the suit.
12. The contention of the 1st defendant is that he has absolutely nothing to do with the land in Sy.No.1032 which admittedly belongs to the plaintiffs. They are only concerned with their land in Sy.No.78, which is adjacent to Sy.No.1032. Their further contention is that they have not encroached upon any land of the plaintiffs and the compound wall that is being constructed by them is in their own property which they are trying to construct so as to protect their property. The controversy therefore boils down to the fact as to whether the 1st defendant made any encroachment into the land in Sy.No.1032 which admittedly belongs to the plaintiffs or whether the construction of the compound wall by the 1st defendant is within its own property viz., in Sy.No.78.
13. Both the parties have not adduced any independent oral evidence. The 1st plaintiff examined himself as P.W.1 and on behalf of the 1st defendant, which is a company, its official is examined as D.W.1. The documents that are produced are also not of much assistance. Ex.A.1 is the registered sale deed under which the father of the plaintiffs has purchased the plaint ‘A’ schedule property under registered sale deed dated 26-7-1952 from Mosalakanti Thimmayamma, which aspect is not in controversy. The specific case of the defendant is that after having purchased the property, the plaintiffs’ father made a layout and sold the plots to different persons and in proof thereof, they have produced Exs.B.1 to B.3. After having sold the plots, no lands of the plaintiffs remains in Sy.No.1032. In view of the controversy, which was more on the factual aspect, the trial Court has appointed an Advocate Commissioner to determine as to whether the 1st defendant made any encroachment in the land of the plaintiffs in Sy.No.1032. The Advocate- Commissioner made the inspection and submitted a detailed report which clearly show that the construction that is being carried out by the defendants is in their own property but it is not by way of any encroachment into the property of the plaintiffs. The plaintiffs, whose responsibility it is to establish their case, have failed to produce any satisfactory evidence to show that they have any land in Sy.No.1032 which has been occupied by the 1st defendant.
14. Upon perusing the evidence on record and the Judgment under appeal, it is noticed that the findings arrived at are on the basis of the legally acceptable evidence which do not warrant any interference. There are no merits in the appeal and the same is liable to be dismissed.
15. In the result, the appeal is dismissed. In the circumstances of the case, there shall be no order as to costs. In consequence thereof, the miscellaneous petitions pending, if any, shall stand closed accordingly.
M.S.K.Jaiswal, J Date September, 2014 smr HON’BLE SRI JUSTICE M.S.K.JAISWAL A.S.No.282 of 1994 Date: September, 2014 smr