THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU SECOND APPEAL No.132 of 2006 Dated: 23rd February, 2010 Between: Abbagoni Rajalingam Goud and 2 others. …Appellants AND P.Krishna Reddy …Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU SECOND APPEAL No.132 of 2006 JUDGMENT : This appeal is filed by the defendants 1 to 3 against decree dated 15.07.2005 passed by the Senior Civil Judge, Kamareddy in A.S. No.1 of 2004 confirming judgment and decree dated 31.12.1999 passed by the Junior Civil Judge, Kamareddy in O.S. No.119 of 1987. 2) Subject matter of dispute between the parties is plot of 200 Sq. yards in Islampura in Kamareddy. The deceased defendant laid basement of foundations in the site claiming to have purchased the same from D.W-3 under Ex.B-1 sale deed of the year 1980. The plaintiff/respondent is also purchaser of 400 square yards site from D.W-3 under Ex.A-1 registered sale deed dated 19.05.1967. Basing on Ex.A-1 sale deed, the plaintiff filed the suit in lower Court against the deceased defendant for mandatory injunction for removal of basement constructed in the suit site and for possession of the suit site from the defendant. After the original defendant died, the appellants 1 to 3 were impleaded as his legal representatives in the suit. After trial, the trial Court decreed the suit with costs; and it was confirmed by the 1st appellate Court. 3) Before this Court, it is contended by the appellants’ counsel that the Courts below should not have granted decree in the suit in the absence of prayer for declaration of title. The appellants’ counsel placed reliance on Balamoni Krishna V. Narayanna Reddy[1] in support of his contention. In the reported decision, the plaintiff filed suit for mandatory injunction alone without prayer for either declaration of title or possession of land in question. In those circumstances, it was held in the reported decision that mandatory injunction or any other injunction can only be granted when the plaintiff established ownership and possession of the property at the time of filing of the suit and that when the plaintiff was not in possession of the property since one year prior to filing of the suit, he will not be entitled for mandatory injunction. This reported decision has no application to facts of this case. Admittedly the defendant laid basement by way of foundations in the suit site even prior to filing of the suit in the lower Court by the plaintiff. That is the reason why the plaintiff filed the suit not only for mandatory injunction but also for recovery of possession of the suit site. Because laying of foundation/basement in the schedule site by the defendant denotes the defendant’s possession of the suit site, the plaintiff has rightly framed the suit for mandatory injunction as well as for possession. Therefore, I find that there is no defect in frame of the suit herein. 4) It is contended by the appellants’ counsel that without localising the land by appointing commissioner, the Courts below should not have decreed the suit. Localisation of the site through commissioner is one mode and is not the only mode. The Courts below tallied the suit land with reference to boundaries contained in Ex.A-1 sale deed as well as in the plaint schedule. Evidence of the common vendor D.W-3 was also taken into consideration while tallying boundaries for the suit land with reference to boundaries contained in Ex.A-1 sale deed in favour of the plaintiff. Certainly the defendant purchased the same site from D.W-3 under Ex.B-1 sale deed nearly 13 years after the plaintiff purchased site under Ex.A-1 sale deed. When schedule of the suit site tallied with boundaries contained in Ex.A-1 registered sale deed executed by D.W-3 in favour of the plaintiff, the plaintiff is automatically entitled for both the reliefs claimed in the suit. The Courts below thus rightly held that the plaintiff has got title to the suit site and consequently rightly decreed the suit for mandatory injunction and for possession. I do not find any error either on facts or in law in the decisions arrived at by the Courts below. 5) In the result, the appeal is dismissed with costs. _______________________________ SAMUDRALA GOVINDARAJULU, J February 23, 2010 KSH HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU SECOND APPEAL No.132 of 2006 Dated: 23rd February, 2010 KSH [1] 1982(2) ALT 408