IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : HONOURABLE SRI JUSTICE B.PRAKASH RAO AND HONOURABLE SRI JUSTICE P.DURGA PRASAD L.P.A.No.167 OF 1999 Date:27.04.2011 Between:- G.Sreeramachandra Murthy and others .. Appellants. A N D A.Ramulu and others. .. Respondents. The Court made the following: JUDGMENT: (per the Hon’ble Sri Justice P.Durga Prasad) This Letter Patent appeal under clause 15 is directed against the judgment and decree passed in C.C.C.A.No.57 of 1997 by Single Judge of this Court on 24.02.1999. The appellants herein are the respondents in the first appeal and the plaintiffs in the suit. The appellants/ plaintiffs have filed the suit for declaration of title and recovery of possession of the suit schedule property, which is numbered as O.S.No.2170 of 1987 on the file of IV Additional City Civil Court, Hyderabad. The brief averments of the plaint are that the plaintiffs have purchased plots of land of respective extents out of Survey No.403/8 (paiki) (new R.S.No.120/7) of Shaikpet Village, Yousufguda, Hyderabad for a valid consideration under different sale deeds as mentioned below. Plaintiff No. Extent of land Date of sale deed Sub-plot No. Consideration Rs. 1 1228 Sq.Yards 20.10.65 “F” 1,375/- 2. 1280 20.10.65 “G” 750/- 3. 1267 20.10.65 “C” 750/- 4. 382.84 18.06.66 “E” 1,000/- 5. 1267 20.10.65 “D” 750/- 6. 561 22.10.65 “A-2” 700/- 7. 600 22.01.65 “B-2” 750/- 8. 564 22.10.65 “A-3” 700/- --------------- Total ----------------- 7,149.84 sq.yards Rs.6,775/- According to the plaintiffs, the suit plots are contiguous to each other and the plaintiffs have purchased the said plots of land from common vendor i.e. Mukkala Sayanna. They have filed the suit through their GPA. The plaintiffs are in possession and enjoyment of the said property from the date of their purchase and the total extent of the land is 7,150 sq. yards. The defendants in the month of May 1974, illegally encroached upon the portion of the suit schedule land and started removing the boundary stones fixed thereon, immediately the matter was reported to the concerned police station at Panjagutta, Hyderabad and ultimately the charge sheets were filed against the defendants and one Somaiah and they were numbered as C.C.No.4048 of 1974 against the defendants 1 to 3 and Somaiah and C.C.No.4049 of 1974 against Somaiah and defendants 4 and 5. The 4th Metropolitan Magistrate, Hyderabad held the accused 1 to 3 are guilty of the offence of criminal trespass and convicted them and sentenced to undergo rigorous imprisonment for one month. A revision was filed against the said conviction and the Additional Metropolitan Sessions Judge while acquitting the accused observed that that the remedy available for the plaintiffs is to approach the Civil Court for recovery of possession and set aside the convictions. Subsequently, the plaintiffs, by reasons of their own preoccupations and domestic inconveniences, could not approach the Civil Court earlier. However, the suit is based on title and it is not barred by limitation. The defendants have illegally encroached upon the suit schedule property in May 1974 and thereafter started raising huts, and some of them have raised asbestos roofing houses. The plaintiffs are the employees and residing at different places, as such they got appointed Mohd. Osman as their General Power of Attorney to file the suit. The defendants have raised huts in the land of an extent of 1,100 sq.yards, and the remaining land is kept vacant. Hence, the suit is filed for declaration of the title for the entire property and for recovery of possession of the land to an extent encroached upon by the defendants. Written statement was filed by the defendant Nos.1 to 3 and 5 pleading that the plaintiffs have no manner of right or title over the suit schedule property and they have not entitled for declaration of title or recovery of possession and mandatory injunction as prayed for and the suit filed by the plaintiffs is barred by limitation. The defendants have been in continuous possession and enjoyment of the suit schedule property since 1965 as a matter of right and they have perfected their title by virtue of long possession over the suit schedule property. They denied about the plaintiffs purchased the plots of land in Sy.No. 403/8 (paiki) (new R.S.NO.120/7) of Shaiipet village, Yousufguda, Hyderabad for a valid consideration and according to them the said sale deeds were created for the purpose of filing the suit. They also pleaded that the Mukkala Sayanna has no right or title to sell the said lands to the plaintiffs nor the plaintiffs have purchased the said lands at any time, as such the allegation that Mukkala Sayanna sold the said lands to the plaintiffs, is not true and correct. The plaintiffs were never in possession of the suit schedule property at any time. The allegation that the defendants are illegally encroached upon the portion of the suit schedule land and started removing boundary stones fixed thereon, is denied. The finding of the Additional Metropolitan Sessions Judge does not create any right and title in favour of the plaintiffs. According to them, they have got constructed their own houses in an area of 1,100 sq. yards, but denied about the remaining land is kept vacant and according to them apart from the defendants, several other persons have been in possession and enjoyment of the remaining lands and the plaintiffs failed to implead all the persons who are in possession and enjoyment of the said land. Hence, the plaintiffs are not entitled for recovery of possession of the suit schedule property and according to them the suit schedule land is a Government land and the Government assigned the said land in favour of the defendants and issued patta certificates in favour of them. Hence, the suit is liable to be dismissed. Basing on the above said pleadings, the trial Court has framed the following issues: 1. Whether the plaintiffs are the owners of the suit land? 2. Whether the suit land is government land and has issued pattas to the defendants? 3. Whether the defendants are in continuous possession from 1965? 4. Whether the suit is barred by time? 5. Whether the suit is bad for non-joinder of all the persons in possession? 6. Whether the plaintiffs are entitled for mandatory injunction as prayed for? 7. To what relief? On behalf of the plaintiffs, 1st plaintiff examined himself as P.W.1 and got marked Exs.A.1 to A.21. No oral and documentary evidence was produced on behalf of the defendants. The trial Court by taking into consideration of the said oral and documentary evidence decided the issue Nos.1,2,3 and 6 in favour of the plaintiffs and issue Nos.4 and 5 also in favour of the plaintiffs and consequently decreed the suit against the defendant Nos.1 to 3 and 5 by declaring that the plaintiffs are absolute owners of the suit schedule property admeasuring 7,150 sq.yards in Sy.No.403/8 (paiki) New Sy.No.120/7 situated at Shaikpet village, Yousufguda, Hyderabad and entitled for recovery of possession of the same and also mandatory injunction against defendant Nos.1 to 3 and 5 for demolition of illegal construction thereon with costs and defendants are given six months time to hand over the possession of suit schedule property from the date of judgment. Aggrieved by the said judgment and decree, the defendants therein have filed the appeal in C.C.C.A.No.57 of 1997 before this Court and the learned Single Judge allowed the appeal and set aside the judgment and decree passed by the lower Court. Aggrieved by the said judgment in the first appeal, the respondents therein, who are the plaintiffs have filed the present appeal. Appellants’ counsel has pleaded that the plaintiffs could establish their title over the suit schedule property by marking respective sale deeds Exs.A.1 to A.14 and they also could able to establish the title of their vendor by producing the certified copy of the Pahani, which is Ex.A.20 and the defendants have failed to adduce any evidence in support of their contentions and could not demolish the case of the plaintiffs in the cross-examination, as such the plaintiffs are entitled for a decree as ordered by the trial Court and the learned Single Judge has came to a wrong conclusion that there is mis-joinder or non-joinder of necessary plaintiffs and defendants and mis-joinder of causes of action, as such the said finding of the learned single Judge is liable to be set aside. The respondents’ counsel, on the other hand, has pleaded that the plaintiffs are not the joint owners of the suit schedule property and they have purchased the said plots individually from their vendor M.Sayanna and even though the defendants have denied the title of their vendor, plaintiffs have not produced any evidence to establish the title of their vendor and the plaintiffs have failed to prove the individual sale deeds Exs.A.1 to A.14 by producing necessary evidence and the plaintiffs also failed to establish to what extent of land of the plaintiffs was encroached by the each defendant, as such the plaintiffs have failed to establish their title and possession over the suit schedule property and merely because the defendants have not adduced any evidence, it cannot be said that the plaintiffs have entitled for decree as the plaintiffs have to establish their case as pleaded by them, as such the learned single Judge has rightly came to the conclusion that the plaintiffs are not entitled for the decree as prayed for. Now the point that arises for consideration is: Whether the plaintiffs are entitled for declaration of title, possession and mandatory injunction as prayed for? P O I N T: The suit was originally filed by the eight plaintiffs and the plaintiff No.6 died during the pendency of the suit and his legal representatives were not brought on record, but subsequently legal representatives of the 6th plaintiff were added as plaintiff Nos.9 to 13 in an application filed under Order 1 Rule 10 of Code of Civil Procedure and the plaintiff No.8’s name was mentioned as Ch.Appa Rao, but subsequently his name was substituted by name Bhavani Kumar on the ground that the said Appa Rao executed a Will deed in favour of Ch.Bhavani Kumar. The suit was filed by the plaintiffs for declaration of their title as absolute owners of the suit schedule property admeasuring 7,150 sq.yards forming part of Survey No.403/8 (Paiki) (new Survey No.120/7) situated in Shaikpet village, Yousufguda, Hyderabad and for mandatory injunction directing the defendants to demolish the illegal constructions and deliver the possession to the plaintiffs. The 1st plaintiff has examined himself as P.W.1 and marked Exs.A.1 to A.21 to establish their title over the suit schedule property. The trial Court by taking into consideration of the Exs.A.1 to A.14, which are sale deeds and plans attached to the sale deeds executed in favour of the plaintiffs held that the suit schedule land belongs to the plaintiffs. The trial Court also observed that even though the defendants have pleaded that the suit schedule land belongs to the Government and they are in possession of the said property since 1965 and the Government has assigned pattas in their favour, but they have not placed any material in respect of their case and no witnesses have come to the box to establish their contention and basing on the evidence of P.W.1 and documents marked on behalf of the plaintiffs, has came to the conclusion that the plaintiffs are the owners of the suit schedule property to an extent of 7,150 sq. yards and entitled for recovery of possession and also for removal structures by the defendant Nos.1 to 3 and 5. P.W.1 has stated that defendant No.4 during the pendency of the suit has vacated the land, as such the suit is not pressed against defendant No.4. Thus, the trial Court has decreed the suit against defendant Nos.1 to 3 and 5 as prayed by the plaintiffs. In appeal, the learned single Judge has held that as the plaintiffs have purchased the property with specific extents separately under different sale deeds even though the vendor is one and the same, they are not entitled to file the present suit for declaration of the title to a total extent of 7,150 sq. yards. The learned single Judge also observed that the plaintiff have failed to prove the documents Exs.A.1 to A.14 by producing necessary evidence as required under Section 68 of Evidence Act. The learned Single Judge also observed that the plaintiffs have to establish their case and they cannot depend on the weakness of the defendants and simply because the defendants have not adduced any evidence in respect of their contentions, the plaintiffs are not entitled for decree as prayed for. The learned single Judge also observed that the 6th plaintiff died during the pendency of the suit and his legal representatives were not brought on record under Order 22 Rule 3 of CPC, as such the suit against plaintiff No.6 is abated and subsequently adding of plaintiff Nos.9 to 13 under Order 1 Rule 10 of CPC does not cure the defect. Admittedly, the plaintiff No.6 died during the pendency of the suit and the legal representatives of the plaintiff No.6 were not brought on record within the time and subsequently the plaintiff Nos. 9 to 13 has filed a petition under Order 1 Rule 10 CPC to implead them as plaintiffs to the suit and the same was allowed. Therefore, the plaintiff Nos. 9 to 13 were brought on record as necessary parties but not as legal representatives of plaintiff No.6, by the date of impleading the plaintiff Nos. 9 to 13 the suit against the plaintiff No.6 was already abated. Therefore, as rightly observed by the learned Single Judge when the suit against the claim of plaintiff No.6 is abated, the plaintiff Nos.9 to 13 cannot proceed with the suit. The first plaintiff as P.W.1 has stated in his evidence that all the plaintiffs have purchased the plots from out of survey No.403/8 and its resurvey number is 120/7 of shaikpet village and they have purchased ‘8’ plots in the suit schedule property under different sale deeds from their vendor Mukkala Sayanna and he has stated about the purchase of the property by the plaintiff Nos.1 to 8 under Exs.A.1 to A.14 and he has also filed Pahani to show that his vendor is in possession as a rightful owner of the property, which is marked as Ex..20. According to him, they have filed a criminal case against the defendants for encroachment of the property when they trespassed into their plots and the said criminal case was ended in conviction in the lower Court and in the revision the conviction was set aside and directed the plaintiffs to approach the Civil Court and subsequently they have filed the present suit. According to him the 4th defendant already vacated the premises and the other defendants have put up their constructions over the suit schedule property. In the cross-examination, he has stated that he filed the suit along with other 7 plaintiffs. Originally, the suit was filed on behalf of the plaintiffs, by their GPA holder Mohd. Osman. Five plaintiffs have jointly executed a GPA in his favour and other plaintiffs executed another GPA. All the plots purchased by plaintiffs are all adjacent to each other and the defendants 1 to 3 have all occupied the total area of plot owned by Subbarao, who is the plaintiff No.2 herein. Defendant No.5 had not at all occupied his plot of land. HE is not holding any GPA on behalf of the plaintiff No.2. He can say that defendant Nos.1 to 3 have occupied his land purchased but he cannot say the extent of land occupied by any defendant of the plots of other plaintiffs. Defendant Nos.1 to 3 have occupied his plot to an extent of 400 sq. yards, but he has not mentioned the same in the plaint. He do not know the particular date when the defendant Nos.1 to 3 occupied his land, but it is only in the month of April, 1974. Therefore, as admitted by P.W.1 the plaintiffs have purchased their plots under different sale deeds from one M.Sayanna, who is their vendor. According to P.W.1, defendant Nos. 1 to 3 and 5 have encroached their plots and made constructions over the said property, but he could not state which defendant occupied what extent of land falling to which plaintiff and on what date they have encroached the said land. Admittedly, the plaintiffs are not the joint owners of the total extent of the land covered by the suit schedule property. The plaintiffs have prayed for (a) for declaration that the plaintiffs are the absolute owners of the suit schedule property admeasuring 7,150 sq. yards forming part of survey No.403/8 (Paiki) (new R.S.No.120/7) situated at Shaikpet village, Yousufguda, Hyderabad and that they are entitled for recovery of possession from the defendants. (b) for grant of mandatory injunction directing the defendants to demolish the illegal constructions raised on the suit schedule property and deliver back possession thereof to the plaintiffs. (c) for awarding costs of the suit and grant such other relief or reliefs, which the plaintiffs are entitled. Therefore, the plaintiffs are seeking declaration of title for total extent of 7,150 sq.yards and also for recovery of possession. As per the pleadings in the plaint, defendants have raised huts in the land to an extent of 1,100 sq. yards and the remaining land is kept vacant. Therefore, the defendants have not encroached the entire land of 7,150 sq. yards, but plaintiffs seeking the relief of declaration of title for the entire extent and also deliver of possession of entire extent of land. As observed above, the plaintiffs are not the joint owners of the said property and they are individual owners of the respective plots under Exs.A.1 to A.14. Since the plaintiffs are claiming title over the said property, the burden is on them to establish their title over the said property as the defendants have denied their title over the said property and also denied the title of their vendor M.Sayanna. The plaintiffs in order to establish the title of their vendor got marked Ex.A.20, which is a certified copy of pahani, which only shows that the said M.Sayanna is a pattadar as per column No.11. As rightly observed by the learned single Judge the revenue record does not establish the title of the vendor of the plaintiffs. Even though the defendants have denied about the title of the plaintiffs, except P.W.1 none of the plaintiffs examined before the trial Court to establish their title over the said property. Thus, the said Exs.A.1 to A.14 marked through P.W.1 were not proved by the plaintiffs. When the plaintiffs are seeking for declaration of title over the property, the burden is on the plaintiffs to establish their title over the said property. By non-examination of any of the plaintiffs, they have failed to establish their title over the suit schedule property. The learned single Judge has observed that there is mis- joinder of plaintiffs and defendants and mis-joinder of causes of action. As already observed above, the plaintiffs are not the joint owners of the suit schedule property and the suit against plaintiff No.6 was already abated, but plaintiff Nos.9 to 13 were added subsequent to the abatement of the suit against plaintiff No.6 as if they are proper and necessary parties to the suit. With regard to the plaintiff No.8, Ch.Bhavani Kuamr was substituted in the place of Ch.Appa Rao in an application filed under Order 1 Rule 10 stating that the said Ch.Appa Rao died and he has executed a Will deed in favour of the said Bhavani kumar, but the said Will deed was not produced before the trial Court. Therefore, the plaintiff No.8 Bhavani Kumar failed to establish that he is a proper and necessary party to the suit. Therefore, as rightly observed by the learned Single Judge, the suit is bad for mis-joinder of plaintiffs. In the plaint, it is pleaded that the defendant Nos.1 to 3 and 5 has encroached the extent of 1,100 sq. yards and the remaining land is kept vacant, but the plaintiffs seeking for declaration of title for the entire extent of 7,150 sq. yards and also for recovery of the said property. The defendants have pleaded that the remaining property is not vacant and other persons have occupied the said land and they were not impleaded as defendants in the suit. Moreover, the plaintiffs are not aware of what extent of their land was encroached by the defendants and when they have encroached their property. P.W.1 was not spoken anything about the remaining extent of land, which they are claiming to be vacant land. When the plaintiffs could not establish what extent of their land was encroached by which defendant, they are not entitled for the relief against the defendants for the total extent of 7,150 sq.yards as claimed by them. As other persons who are in occupation of the remaining extent of land were not made as parties to the suit, the suit is bad for mis-joinder of the defendants. With regard to cause of action, as already observed above, the plaintiffs are not the joint owners of the said property and they have purchased the said property under different sale deeds from the common vendor and they are not aware about what extent of their land was encroached by the defendants and when the cause of action for each of them has arisen for filing the suit. As such the plaintiffs have no common cause of action for filing the suit. Hence, the suit filed by the plaintiffs is mis-joinder of causes of action. The respondents’ counsel also pleaded that the plaintiffs are not entitled for the declaration of title and possession as they have not properly described the suit schedule property. In the plaint, the suit schedule property is described as land admeasuring 7,150 sq. yards forming part of survey No.403/8 (paiki) (new R.S.No.120/7) situated at Shaikpet, Yousufguda, Hyderabad and bouinded by North: Neighbours’ land, East: Neighbours’ land, West: Neighbours’ land, and South: Neighbours’ land. Therefore, with the said boundaries, the suit schedule property cannot be identified. Moreover, as per Exs.A.1 to A.14, the sale deeds, under which the plaintiffs are claiming to have purchased the suit schedule property specifies the boundaries of each plot purchased by them. But as observed above, the suit schedule property is not properly described and the same is not identifiable with the boundaries mentioned in the plaint. The respondents’ counsel also further pleaded that the suit is barred by limitation as per the pleadings made in the plaint itself. In the plaint, the plaintiffs have pleaded that the defendants have encroached upon the suit schedule property in the month of May, 1974 and the present suit is filed in the year 1987 i.e. after 13 years of alleged encroachment. Since the plaintiffs seeking the relief of recovery of possession, they ought to have filed the suit within ‘12’ years from the date of dispossession and admittedly the defendants encroached the said property in the month of May, 1974, as such the suit filed in the year 1987 is barred by limitation. Thus, the plaintiffs are not entitled for declaration of the title and recovery of possession and mandatory injunction as prayed for and the learned Single Judge has rightly allowed the appeal by setting aside the decree passed by the trial Court. In the result, the Letter Patent Appeal is dismissed and in the circumstances without costs. _____________________ B.PRAKASH RAO, J _____________________ P.DURGA PRASAD,J 27th April, 2011 KSP