THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.132 of 2011 April 15, 2011 Between: Soora Muninatha Reddy (died) per L.Rs, ... Appellants And R.Devaraju (died) and others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.132 of 2011 JUDGMENT: The unsuccessful plaintiffs in both the Courts below are the appellants. This second appeal is against the judgment dated 13.9.2010 in A.S.No.128 of 2006 on the file of the Court of the III Additional District Judge, Tirupati, confirming the judgment and decree dated 25.4.2005 in O.S.No.86 of 1995 on the file of the Court of the Additional Senior Civil Judge, Tirupati. Soora Muninatha Reddy (hereafter referred to as first plaintiff) instituted the suit for declaration of title and injunction in respect of plaint ‘B’ schedule property. During the pendency of the suit, first plaintiff died. His wife, son and daughter came on record as Legal Representatives and contested the suit. In the plaint, it was alleged that the land admeasuring Acs.2.80 in T.S.No.4047/1 in Tirupati (plaint ‘A’ schedule property) was purchased by the first plaintiff under registered sale deed dated 05.7.1971 from Balasubrahmanyam Achari and his wife, Gnanamma. He sold an extent of Acs.0.17 to Tirupati Municipality for formation of a drainage canal from Tilak road to Neralamma temple. In 1990, Tirupati Municipality requested the first plaintiff to deliver the land admeasuring 50’ X 207’ on exchange basis for formation of metal road. The first plaintiff accepted the proposal and delivered the land. Plaint ‘B’ schedule property admeasuring Acs.0.03, East to West – 72’ and North to South – 18’ (or 36 Ankanams) is part and parcel of plaint ‘A’ schedule property. Initially the suit was filed against the defendants 1 to 7 alleging that they encroached upon plaint ‘B’ schedule property, dug pits and tried to erect RCC pillars in spite of protest by the first plaintiff. The defendants 8 to 16 were subsequently added as party defendants alleging that they encroached upon the land subsequent to filing of the suit. The suit was opposed. The defendants 5, 10, 11 and 12 filed written statements. Other defendants adopted the statement filed by the defendant No.5. They contended that from the times immemorial, the defendants and their ancestors have been in possession and enjoyment of plaint ‘B’ schedule property, that they constructed houses, obtained electricity connections and residing with their families duly paying house tax to Municipality. There are number of permanent houses in plaint ‘A’ schedule property since times immemorial and the plaintiffs or their vendors have no right, title or possession over the land. The defendant No.10 alleged that he and the defendant No.9 purchased a portion of plaint ‘B’ schedule property from the first defendant under two separate sale deeds for a valid consideration. The defendant No.11 contended that he purchased the property under registered sale deed dated 28.8.1999 and the defendant No.12 also took similar plea to the effect that he purchased a portion in plaint ‘B’ schedule property under registered sale deed dated 20.11.2000. The trial Court framed five issues. The plaintiff deposed as P.W.1 and his wife gave evidence as P.W.2 besides examining P.W.3 and marking Exs.A1 to A5. As many as 10 witnesses were examined and 20 documents were marked for defendants. The evidence of P.W.1 was eschewed as he died after filing the affidavit in lieu of chief- examination and his evidence remained untested by cross- examination. On considering the oral and documentary evidence, the trial Court came to the conclusion that the plaintiffs failed to establish the title of their vendors, that they failed to establish that plaint ‘B’ schedule property forms part of plaint ‘A’ schedule and that they are not entitled for the relief of declaration and injunction. The appellate Court framed four points for consideration, reappreciated the evidence and came to the conclusion that Ex.A1 sale deed itself does not support the declaration of title of the plaintiffs, that possession of plaint ‘B’ schedule property was always with third parties and, therefore, they are not entitled for permanent injunction. The Counsel for the appellants (plaintiffs) submits that the Courts below did not appreciate the oral and documentary evidence adduced by the plaintiffs in proper perspective; that when the plaintiffs sought for declaration of title in respect of plaint ‘B’ schedule property, the Courts below went on discussing the issue of title with regard to plaint ‘A’ schedule property; that when the defendants failed to prove their title and the case of the plaintiffs is supported by a registered document, the only inference that can be drawn is in favour of the plaintiffs’ title; and that when the title of the plaintiffs in respect of plaint ‘A’ schedule property is not in doubt, the title to plaint ‘B’ schedule property which forms part and parcel of plaint ‘A’ schedule property cannot be doubted. The case of the plaintiffs all along has been that the defendants encroached upon plaint ‘B’ schedule property admeasuring Acs.0.03 and that the entire extent of Acs.0.03 forms part of plaint ‘A’ schedule property. As a preliminary fact, it is for the plaintiffs to establish the identity of plaint ‘B’ schedule property and also their allegation that it forms part of plaint ‘A’ schedule property. The trial Court adverted to this aspect of the matter, while considering the issue Nos.1 and 2, namely, whether the plaintiff is not entitled for grant of permanent injunction of plaint ‘B’ schedule property, and whether the plaintiff is entitled for declaration that he is absolute owner of plaint ‘B’ schedule property as prayed for. The important witness to prove these issues is the first plaintiff. It appears that he died after filing of the affidavit in lieu of chief- examination and as his evidence remained untested by cross- examination, his evidence was eschewed. Therefore, the plaintiffs relied on the evidence of P.Ws.2 and 3 and Exs.A1 to A5 to prove their title and possession. As found by the trial Court, the evidence of P.W.2 (the wife of the first plaintiff) was shaky. She could state neither the boundaries of plaint ‘A’ schedule property nor the location of plaint ‘B’ schedule property. P.W.3, the Town Surveyor, deposed that there are house in the entire property. P.W.2 also admitted, in her evidence, that there were huts in the property even as on the date of Ex.A1 and that she does not know where exactly plaint ‘B’ schedule property is situated. When the plaintiffs themselves are not sure about the location of plaint ‘B’ schedule property the allegation that it forms part of plaint ‘A’ schedule property itself remains unproved. It is well settled that to prove their case, the plaintiffs cannot rely on the weaknesses or loopholes in the evidence of defence witnesses. The defendants produced documentary evidence, namely, house tax receipts, electricity bills, water tax receipts, property tax receipts etc., to prove their possession, which disentitles the plaintiffs the relief of injunction. While the matter is pending before the appellate Court, the plaintiffs filed I.A.No.176 of 2009 under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (CPC) to receive the certified copies of the judgment in O.S.No.4 of 1979 passed by the Court of the Principal District Munsiff, Tirupati, and the certified copy of the decree in A.S.No.37 of 1987 as additional evidence. By order dated 13.9.2010, the first appellate Court rejected the application holding that at a belated stage, the plaintiffs cannot be permitted to bring in additional evidence. The Counsel for the appellants, in this second appeal, raised this plea and contends that when the additional documents are necessary for adjudicating the issue whether plaint ‘B’ schedule property forms part of plaint ‘A’ schedule property, the additional evidence ought to have been received. The submission cannot be accepted. The first appellate Court thoroughly reappreciated the evidence and came to the same conclusion as reached by the trial Court. The issue whether the plait ‘B’ schedule property forms part of plaint ‘A’ schedule property is certainly a question of fact. When both the Courts below held that the plaintiffs failed to establish the foundation for the suit that plaint ‘B’ schedule property is part and parcel of plaint ‘A’ schedule property, the judgments of the Courts below cannot be faulted. The second appeal is misconceived and is, accordingly, dismissed. No costs. _______________ (V.V.S.RAO, J) April , 2011 YS