THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.473 OF 1992 Between: P.Sreeramakrishna Murty and others ..Appellants Vs N.Lakshman Rao and others …Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.473 OF 1992 JUDGMENT:- The appeal is filed against the judgment of the Principal Subordinate Judge, Kakinada dismissing the suit of the plaintiff. The suit was filed for a declaration of a title to the schedule site to an extent of 812 square yards situated in T.S.No.1450 of Jagannaickpur, Kakinada and for possession and mandatory injunction. The allegations in the plaint goes to show that plaintiffs are brothers. First defendant is brother and second defendant is sister and children of third defendant. A godown bearing D.No.61-1-42, situated in Jagannaickpur, Kakinada shown as A,B,C in the plaint plan belongs to second defendant and it is being managed by defendant Nos.1 to 3. But to the east of the said godown, there is a vacant site belonging to the plaintiffs shown as B, C, H, F, G,E and B. The plaintiffs submitted a lay out and got approved with regard to site owned by them. When the Government proposed acquisition, the plaintiffs filed a writ and obtained a stay. The site as such is vacant. The defendants with a view to annex the vacant site opened a door-way and encroached into red- marked site. The defendants have high-handedly constructed walls around the encroached site. Hence the suit. The defendant Nos.2 and 3 filed a written statement which was adopted by the first defendant. The defendants contended that the plaintiffs have no title, possession or right in the red marked portion. It was further pleaded that schedule properties originally belonged to one Lankada Butchi Raju and others and second defendant filed a suit on the basis of a mortgage against them in O.S.No.48 of 1972 and another person also brought a suit O.S.No.243 of 1969 and the property was brought to sale and the second defendant becoming purchaser and obtained a sale certificate and took delivery of the property on 09-05-1974. The plaintiffs are aware of the above facts. The plaintiffs have therefore no right or interest in the schedule property. The suit is liable to be dismissed. On the basis of the above pleadings, the following issues were settled for trial. 1. Whether the 2nd defendant and her predecessors in title have been possession and enjoyment of the property since 17 years from the time and its purchase in a court auction and there after perfected her title by adverse possession? 2. Whether the plaintiffs are entitled to the declaration that they are the owners of suit schedule property and for recovery of the possession after ejecting the defendants therefrom? 3. Whether the plaintiffs are entitled to the mandatory injunction for removal of the wall and other structures constructed in the red-marked portion of the plaint plan? 4. Whether the plaintiffs are entitled to the permanent injunction prayed for? 5. To what relief? On behalf of the plaintiffs, PWS.1 and 2 are examined and marked Exs.A-1 to A-20. On behalf of the defendants DW.1 is examined and marked Exs.B-1 to B-3. After considering the evidence on record, the learned Subordinate Judge dismissed the suit and aggrieved by the said judgment, the present appeal is filed. The points that arise for consideration are:- (1) Whether the plaintiffs have proved title and right to the schedule property and entitled for the reliefs as framed for? (2) Whether the judgment passed by the learned Subordinate Judge is legal and sustainable? (3) To what relief? POINTS:- The learned Senior Civil Judge considered the contentions of the plaintiffs and the rival purchases, the red-marked portion according to the plaintiffs in Sy.No.1450 and there is further site towards East of the site. The basis of the title relied on by the plaintiffs is under Ex.A-2 sale certificate. It was found that the sale certificate shows an extent of Ac.12.96 cents was purchased and it is Ex.A-2. But the rough patta Ex.A-3 which was issued by the Assistant Settlement Officer in favour of the plaintiffs’ father shows that it was given an extent of Ac.12.40 cents which is comprised in Sy.No.157/2 and 157/4 corresponding to T.S.No.1450 and 1452. Therefore, on comparison of the documents, the learned Subordinate Judge found the land in Sy.No.1450 is only Ac.10.37 cents as per the patta and though Ex.A-2 sale certificate shows that it is Ac.10.87 cents as such there is a deficiency of Ac.0.50 cents to the title of the plaintiffs and even with regard to Sy.No.1452 there is deficiency of Ac.0.06 cents. Therefore, the total deficiency of the land claimed by the plaintiffs under Ex.A-2 sale certificate is Ac.0.56 cents. The learned Subordinate Judge found that there is no explanation given by the plaintiffs to show as to how such a variation has come. The claim of the plaintiffs is that the land in T.S.No.1450 to an extent of 812 square yards was trespassed but there is no proof that such land is in the said survey number. The lower court also found that the property was said to have been divided between PW.1 and his brother and the said document is not filed to show the extent of property in the said survey number. In fact, the lower court relied on Ex.B-1 sale certificate showing purchase of an extent of 1280 square yards. The lower court also found that Ex.A-5 is not enclosed with the approved plan showing the extent of property and therefore the claim of the plaintiffs also cannot be considered. From a consideration of the entire oral and documentary evidence, the lower court found that the plaintiffs have not explained the deficiency of the title referred under the patta and on the other hand the sale certificate shows the title of the defendants. The lower court also found the particulars of the trespass is not mentioned. The lower court also found that the defendants could thereby that they have got title to 1500 square yards under Ex.B-1. Therefore, for all the above reasons, the lower court has dismissed the suit of the plaintiffs and as rightly found by the lower court the plaintiffs have failed to prove the right or interest in the disputed portion and also failed to prove the particulars of possession or their continuation and enjoyment and I do not find any reason to interfere with the decree passed by the lower court. Accordingly the appeal suit is liable to be dismissed. The points are therefore answered. The appeal suit is accordingly dismissed. No order as to costs. _______________________ N.R.L.NAGESWARA RAO,J 31-12-2010 TSNR