HON'BLE SRI JUSTICE M.S.K.JAISWAL CCCA. No.209 of 1994 Date: 30th January, 2014 Between :- Station Commander, Andhra Sub-Area Ministry of Defence, Secunderabad & Others. .. Appellants And K. Seshu Babu. .. Respondent HON’BLE SRI JUSTICE M.S.K.JAISWAL C.C.C.A.No.209 of 1994 JUDGMENT:- This appeal is filed by the appellants/defendants aggrieved by the judgment and decree passed by the III Additional Judge, City Civil Court, Hyderabad at Secunderabad in O.S.No.1486 of 1987, dt. 26.8.1994. 2. The brief averments of the plaint are that the plaintiff is the absolute owner and possessor of Plot No.5, Admeasuring 325 sq. yards, consisting of a house, in Sy.Nos.30, 31 and 32, GLR Sy.No.443, situated at Maredpally, Secunderabad. It is stated that one Anand Rao and his family members are the original owners of the said survey numbers, who sold the same in favour of the Members of the Jyothi Cooperative Housing Society, under a registered sale deed. The said society, after obtaining necessary permissions from the competent authority i.e.,3rd defendant, got the layout sanctioned, made it into plots and developed the same. Initially, one Vijay Pal, a member of the Society had purchased the suit plot on 07.01.1982, who, subsequently, sold the same to the plaintiff for Rs.24,300/- under a sale deed dt. 19.12.1984. The plaintiff, after obtaining necessary sanction and no objection from the 3rd Defendant, constructed the suit house by spending an amount of Rs.2,50,000/-. For the first time, the defendants 1 and 2, in February 1987, claimed that 300 sq. yards of land in the suit plot is their land covered under GLR 443 and tried to remove the structures. Therefore, the plaintiff filed W.P.No.2160 of 1987 before this Court, which was disposed of with a direction to approach the Civil Court. Hence, the plaintiff, after issuing a notice under Sec.80 CPC, filed the suit seeking declaration and injunction. It is also stated by the plaintiff that the defendants having approved the layout granted by the Cantonment Authorities in favour of the Jyothi Cooperative Societity, they are estopped from reclaiming the same as part of their land. 3. The 3rd defendant filed his written statement denying that the plaintiff is the owner of the suit land, which is in continuous and uninterrupted occupation of Head Quarters of AOC Centre since 1971-72 and hence denied the possession of the plaintiff or his predecessors in title. It is also stated that on the request of one Devaraj, the defendants and the Mandal Revenue Officer have conducted a joint survey and after that they have issued notice to the plaintiff for eviction of the suit property, as per law. 4. The trial Court framed as many as nine issues and conducted trial. On behalf of plaintiff PWs.1 and 2 were examined and Exs. A-1 to A13 were marked. On behalf of defendants, DW-1 is examined and Exs.B1 to Ex.B.3 were marked. Apart from that, Exs.C1 to C3 were also marked. The trial Court after considering the evidence on record elaborately decreed the suit with costs. Aggrieved by the same, the defendants filed the appeal on hand. 5. The point that arises for consideration is as to whether the respondent-plaintiff constructed his house by encroaching on to the land of the appellants-defendants and/or whether the plaintiff is entitled to the declaration and injunction as prayed for? 6. POINT:- Substantial factual matrix is not in controversy. The only point in issue is as to whether the respondent-plaintiff has in any way encroached upon an extent of 300 Sq.Yds., of land belonging to the respondents-defendants. The case of the plaintiff is that he purchased the plot bearing No.5, admeasuring 325 Sq.Yds., in Sy.Nos.30, 31 and 32, GLR Sy.No.443, situated at Marredpally, Secunderabad, under registered sale deed, dated 19-12-1984, which is Ex.A.3, and thereafter, after obtaining permission from the competent authorities under Ex.A.4, dated 31-7-1986, he constructed a house thereon. As has been noticed from the preceding discussion with regard to the averments and counter averments, there is no controversy insofar as the developments that took place prior to the plaintiff constructing the house is not concerned. Therefore, they need not be reproduced. 7. However, the case of the appellants-defendants is that during the survey conducted by the authorities on 18-2-1987, it was noticed that the plaintiff has encroached upon 300 Sq. Yds., of land in Sy.No.50 of Tirumalgherry village, which is part of the larger extent of Acs.115-00 of land belonging to the Government and the Defence Department. Therefore, so far as title of the plaintiff over the plot bearing No.5 in Sy.Nos.30, 31 and 32 is concerned, there is no dispute. However, whether the plot is part of Sy.No.50, as claimed by the defendants, is required to be seen. 8. The plaintiff, who is examined as P.W.1 deposed the facts leading to his title. It is his specific case that after obtaining the layout sanction, building permission etc., from all the authorities concerned, he constructed his house by spending Rs.2,50,000/- in the year 1986. For the first time, in the year 1987, the defendants have disclosed that the land, on which the plaintiff made the construction, is in fact in G.L.R.No.442 but not G.L.R.No.443. Since the location of the plot was in controversy, the trial Court has appointed an Advocate-Commissioner during the pendency of the suit. The Advocate-Commissioner is examined as P.W.2. His evidence is material for determining the controversy. It is in the evidence of P.W.2 that in pursuance to the warrant of the Court, he inspected the site in the presence of the Deputy Inspector of Surveyor by name Zaheeruddin and also the learned Advocates appearing for the plaintiff and defendants. He further deposed that at the time of inspection by the Advocate-Commissioner, the defence personnel by name D.K.Paul, Captain Ravinder Singh, Captain Chouhan and Breganza were also present. The Advocate- Commissioner, in the presence of both the parties and their Advocates with the help of Survey Inspectors, measured the land in Sy.Nos.30, 31 and 32 and fixed the boundaries. The western side boundary of these lands was a well old nala (canal). The Advocate-Commissioner further deposed that he observed the physical features of the plot bearing No.5 and he found that it is in Sy.No.32, admeasuring 324 Sq.Yds. The boundaries of this plot of the plaintiff on the western side was found to be nala/canal. The Advocate-Commissioner further deposed that he has verified all the three village maps of Kakaguda, Trimulgherry and Marredpally and with the help of tippons and the revenue records, he found that the suit property bearing No.5 is in Sy.No.32 but not in Sy.No.50, as claimed by the defendants. The reports, sketches and the documents that were submitted by the Advocate-Commissioner were marked as Exs.C.1, C.2 and C.3. Even though, P.W.2- Advocate-Commissioner was elaborately cross-examined, nothing concrete is elicited from him for disbelieving his evidence. 9. From the evidence of the Advocate-Commissioner and his reports Exs.C.1, C.2 and C.3, there is absolutely no doubt that the suit plot bearing No.5 is in Sy.No.32, which admittedly is a private land, but not in Sy.No.50, which admittedly belongs to the defence authorities. The clear line to differentiate between the lands in Sy.Nos.32 and 50 is the existence of old well and nala. 10. It may also be stated that the controversy raised by the defendants was in respect of two plots, one is the suit plot bearing No.5 belonging to the plaintiff and another was plot No.11 belonging to one Ramakrishna Reddy. The claim and counter claim, both by the plaintiff and the defendants, was similar in respect of both the plots. Both the plot owners have filed the suits. While the plaintiff filed O.S.No.1486 of 1987, the suit filed by the owner of the plot bearing No.11 by name Ramakrishna Reddy was registered as O.S.No.1487 of 1987. The oral and documentary evidence adduced including the reports of the Advocate-Commissioner in both the suits was one and the same. Both the suits were tried by the same Court and were disposed of on the same day i.e., on 26-8-1994. The defendants in the suits have filed two appeals before this Court. While C.C.C.ANo.208 of 1994 was against the Judgment and Decree in O.S.No.1487 of 1987, the present C.C.C.A. bearing No.209 of 1994 is against the Judgment and Decree is O.S.No.1486 of 1987. C.C.C.A.No.208 of 1994 has already been dismissed by this Court on 31-12-2002 and the findings of the leaned trial Judge, which are in para materia to the findings of the present suit have become final. 11. Both from oral and documentary evidence that is adduced on behalf of the plaintiff, it is clearly established that the construction made by the plaintiff is in plot No.5 in Sy.No.32 over which admittedly the defendants have no right whatsoever. The land of the defendants is on the other side of the canal whereas the plot No.5 of the plaintiff is separated by the canal. The defendants have failed to establish that the plaintiff has in any way encroached upon the defence land in Sy.No.50. The learned trial Judge has appreciated both oral and documentary evidence in proper perspective and decreed the suit. Upon re-appreciation of the material on record, I see no reason to take any view other than that has been taken by learned trial Judge. There are no merits in the appeal and the same is liable to be dismissed. 12. In the result, the appeal is dismissed. No order as to costs. The miscellaneous petitions, if any pending in this appeal shall stand disposed of. ________________ M.S.K.JAISWAL, J Date: 30th January, 2014 Smr/Kv HON'BLE SRI JUSTICE M.S.K.JAISWAL CCCA.No.209 of 1994 Judgment Date: 30th January, 2014 Smr/kv