HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.3050 OF 1992 JUDGMENT: Plaintiffs Nos.2, 3 & 5 in O.S.No.23 of 1984 on the file of the Subordinate Judge, Markapur, are the appellants herein. 2. The suit is one filed for recovery of possession of the property. The claim of the plaintiffs is that an extent of Acs.19.18 cents out of Acs.26.18 cents with specific boundaries in Sy.No.38 of Annasamudram village was purchased by the deceased 1st plaintiff on 26.04.1969 for consideration of Rs.4,000/- from Swayampakula Venkatanarayanappa and he has been in possession and enjoyment of the same and his name has been recorded as possessor and enjoyer of the property. The defendants have no manner of right and it was alleged that defendants Nos.1 to 3 have encroached an extent of Acs.4.00 cents, whereas the 6th defendant has encroached an extent of Ac.1.30 cents out of the said land and the other defendants are in possession and enjoyment of the said property. Basing on the above allegations, the suit was filed for declaration of title and also for recovery of possession of the property. 3. Defendant No.1 has filed written statement, which was adopted by defendants Nos.2 to 4 and 6 to 20. The substance of the contention of the defendants is that the property in possession of the defendants is nothing to do with the property said to have been purchased by the deceased 1st plaintiff from Venkatanarayanappa. The defendants have never encroached the property. The deceased 1st plaintiff has got patta only for lands in Sy.Nos.547/A and 549/6. The land covered by the sale deed dated 26.04.1969 does not tally with the plaint schedule property and therefore, the plaintiffs cannot claim that the defendants have encroached upon the land of the plaintiffs. The other defendants also claimed that they have purchased the property from the original owners and have been in possession and enjoyment of the same. In substance the contention of all the defendants is that the property said to have been purchased under the sale deed does not relate to the property in possession of the defendants. 4. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the plaintiffs are entitled to declaration of title to the plaint schedule properties? 2) Whether the plaintiffs are entitled to recovery of possession? 3) Whether the plaintiffs are entitled future profits? 4) To what relief plaintiff is entitled to? 5. On behalf of the Plaintiffs, PWs.1 to 6 were examined and marked Exs.A.1 to A.14. On behalf of the defendants, DWs.1 to 3 were examined and marked Exs.B.1 to B.7. Exs.C.1 to C.18 were marked by the Court. After considering the evidence on record, the learned Subordinate Judge has decreed the suit of the plaintiffs confirming the title of the plaintiffs so far as it relates to the boundaries mentioned in Ex.A.1 and dismissed the relief of recovery of possession of property from defendants Nos.1 to 3 and 6. Aggrieved by the said judgment, the present appeal is filed. 6. The points that arise for consideration are: 1) Whether the property in possession of the defendants is part of the property that was purchased under Ex.A.1 by the plaintiffs? 2) Whether the plaintiffs are entitled for recovery of the possession of the property? 7. POINTS: This being a suit filed for declaration of title and recovery of possession, it is for the plaintiffs to show that the valid title has been conveyed with regard to the property in possession of defendants and that the defendants have encroached the property purchased by the plaintiffs under Ex.A.1 sale deed. In fact during the course of arguments, a mention is said to have been made before the lower Court by the counsel for the defendants that the land described in Ex.A.1 does not tally with the suit schedule boundaries and so far as the property in Ex.A.1 is concerned they have no objection for the enjoyment of the property and declaration and right of the plaintiffs over the said property. But, however, the plaintiffs did not agree for it and therefore, the lower Court has recorded the evidence. In order to succeed in the suit, the plaintiffs have to show that the property in possession of the defendants is part of the property that was purchased under Ex.A.1 by the plaintiffs from PW.2, the original owner of the property. Evidently, the boundaries mentioned in Ex.A.1 does not tally with the boundaries mentioned in the suit schedule. A Commissioner is said to have been appointed for inspection of the properties and to localize the same, but the warrant could not be executed because of non-cooperation. Though other effort was made by the plaintiffs to prove that the property in possession of the defendants is in fact part of the property under Ex.A.1, the surveyor from the revenue was also not appointed and no Village Officer was also examined to prove the enjoyment of the property. Even the evidence of the vendor of the plaintiffs, who is examined as PW.2, is insufficient to hold that the property in possession of the defendants is the property covered under Ex.A.1. Except the interested testimony of PWs.1 and 2, the plaintiffs could not produce any other evidence to show their right over the property in possession of the defendants. In fact, the lower Court after considering the material on record, came to the conclusion that the identity of the property under Ex.A.1 is not tallying with the identity of the property in possession of the defendants. Therefore, when the plaintiffs have failed to prove their right and interest in the property in possession of the defendants and when the property purchased under Ex.A.1 is not established to be the same relating to the suit schedule property, the plaintiffs cannot seek declaration or recovery of the possession. In fact, except the part of the property, which was said to be in possession of the defendants, plaintiffs have been in possession of the substantial property, which was said to have been purchased under Ex.A.1. 8. Therefore, in view of the above circumstances, it is to be held that the plaintiffs have failed to prove right or title to the property that was in possession of the defendants and consequently, the relief has been rightly negatived by the lower Court and there are no grounds to interfere with the Judgment of the lower Court. Points are answered accordingly. In the result, the appeal is dismissed. No costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date: 11.10.2011 INL