THE HON’BLE SRI JUSTICE A.GOPAL REDDY S.A.NO.870 OF 2011 JUDGMENT The 1st defendant ﬁled this second appeal against the judgment and decree dated 28-06-2011 by the IX Additional District Judge (FTC), Krishna, Machilipatnam, passed in A.S.No.4 of 2004, whereby the learned Judge while allowing the appeal set aside the judgment and decree dated 25-09-2003 passed in O.S.No.268 of 2001 by the I Additional Junior Civil Judge, Machilipatnam. The appellant herein is defendant No.1. 1st respondent herein is the plaintiﬀ and 2nd and 3rd respondents are defendants 2 and 3. The status of the parties herein will be referred to as arrayed in the suit. The brief facts of the case are as follows: Plaintiﬀ ﬁled the suit in O.S.No.268 of 2001 on the ﬁle of the I Additional Junior Civil Judge, Machilipatnam, seeking declaration and for delivery of vacant possession of the plaint schedule property. Originally, the plaint schedule property was purchased by one Cherukuvada Venkata Rangaiah Naidu, who is the grandfather of the plaintiﬀ under a registered sale deed dated 16-11-1921 – Ex.A1 from one Peddisetti Subbaiah and his wife Peddisetti Venkatamma and their son, who is the minor, represented by his father as guardian, for a valuable consideration. The plaint schedule property is consisting of two plots, which is situated at Rajupet, Machilipatnam. The plaintiﬀ’s grand father has two sons by name Bhupathi Rao and Jagapathi Rao. Bhupathi Rao and his wife Seetha Maha Lakshmi are the parents of the plaintiﬀ and also third defendant. Jagapathi Rao died issueless. Apart from two sons, the plaintiﬀ’s grandfather has one daughter, who also died issueless. So, the plaintiﬀ and the third defendant are the only legal heirs. During the life time of plaintiﬀ’s grandfather, himself and his sons have been in possession and enjoyment of the plaint schedule property and after the death of the plaintiﬀ’s grandfather, his sons Bhupathi Rao and Jagapathi Rao, the plaintiﬀ and the third defendant have been in possession and enjoyment of the plaint schedule property, which is an extent of 248 sq.yards. During the life time of Bhupathi Rao, the marriages of the plaintiﬀ and third defendant were performed. After their marriage, the plaintiﬀ, the third defendant, Bhupathi Rao acquired two separate houses. One house was given to the plaintiﬀ with a right of possession and enjoyment only. The third defendant was given not only house but also the other sites. Bhupathi Rao, the father of the plaintiﬀ made oral arrangement during his life time and the same was accepted by the plaintiﬀ and third defendant. The plaintiﬀ after obtaining necessary documents such as registered extract and encumbrance certiﬁcate of the plaint schedule property ﬁled the suit for the relief of permanent injunction against defendants 1 and 2 on the ﬁle of the Junior Civil Judge, Machilipatnam in O.S.No.268 of 1998 and the same was dismissed. In the said suit, the defendants pleaded that suit has been ﬁled on the imaginary grounds without any survey number and the extent of the site and the boundaries given in the plaint schedule property are not correct and also pleaded that the 1st defendant purchased an extent of 290 sq. yards in R.S.No.262/1 in locality from the political suﬀerers from one Vemuri Narayana Murthy to whom the said land was given by the Government in the year 1979. The agreement under which the defendants purchased is not valid and the site covered under agreement is completely diﬀerent from the plaint schedule property. Hence, the suit. Defendants 1 and 2 ﬁled written statements contesting the claim of the plaintiﬀ and contending that the sale deed 19-11-1921 does not relate to the schedule property and the plaintiﬀ or her predecessors have no right, title or interest for 248 sq.yards of plaint schedule. Earlier the plaintiﬀ ﬁled the suit in O.S.No.268 of 1998, which was dismissed and the plaintiﬀ cannot ﬁle the suit on the same of cause of action as the suit is not maintainable. The suit schedule property absolutely belongs to the defendants 1 and 2. The ﬁrst defendant purchased the same 25 years back and ever since he is in possession and enjoyment of the same and acquired title to the schedule property even by adverse possession for which the plaintiﬀ is not entitled to claim any declaration or injunction. Basing on the respective pleadings of both parties, the following issues were settled for trial. 1.Whether the plaintiﬀ is entitled to a declaration as sought for? 2.Whether the plaintiﬀ is entitled to a vacant possession of the schedule property as prayed for? 3.To what relief? To substantiate the case of the plaintiﬀ, the plaintiﬀ examined PWs1. to 3 and marked Exs.A1 to A4. On behalf of the defendants, DWs.1 to 4 were examined and Exs.B1 to B5 were marked. The lower Court, after considering the oral and documentary evidence, held that earlier suit O.S.No.268 of 1998 was not decided on merits and the same was ﬁled for permanent injunction whereas the present suit is ﬁled for declaration and therefore, the plea of res judicata does not arise. It was further held that the defendants failed to establish their title to the suit schedule property since the burden is on the plaintiﬀ to prove that she is in possession and enjoyment of the property covered by Ex.A1 and in the cross- examination, the plaintiﬀ stated that the property is in possession of the ﬁrst defendant and in the absence of proof of title by the plaintiﬀ, she is not entitled to the relief as prayed for and dismissed the suit. On appeal being ﬁled by the plaintiﬀ, the lower appellate Court on re-assessing the entire evidence, decreed the suit. It is not disputed that during pendency of the suit, an Advocate-Commissioner was appointed and he ﬁled a report along with rough plan, wherein he had shown the boundaries and the said boundaries are tallying with that of the plaint schedule property. The defendants pleaded that they purchased the plaint schedule property from one Vemuri Narayana Murthy, who is a political suﬀerer and since then they have been in possession and enjoyment of the same. There is no variation in the description of the existence of the boundary on the southern side which is identical with the property covered by Ex.A1 sale deed and there is a gate in the eastern side as a passage into the plaint schedule property and the same is also tallying with the description of topography on the eastern boundary in Ex.A1 sale deed. Therefore, the lower Court held that there is no dispute with regard to identity of the plaint schedule property with reference to Ex.A1 sale deed. Ex.B5-agreement shows that the Government has not issued patta for the site proposed to be assigned to the alleged vendors and there no boundaries were mentioned in it. There is a recital in Ex.B5 that the alleged vendor would execute a regular sale deed after securing the site with deﬁnite boundaries. PW3, who is an independent witness, deposed that the plaint schedule property has been in possession and enjoyment of the plaintiﬀ and her father previously. But the evidence of PW2 also shows that the defendants are passing through the plaint schedule site to reach main road and the plaint schedule is a vacant site and the nature of usage of the plaint schedule site by the defendants is only as a passage. The defendants also pleaded that they have been using the plaint schedule site as part of their site since the house of the defendants is situated adjoining the plaint schedule site. The physical features observed by the Advocate Commissioner disclosed that there is fencing between the house and site of the defendants and the plaint schedule site and that there is a wooden plank gate at A, B point on the southern edge of the plaint schedule property. In view of the existence of physical features on the southern boundary of the plaint schedule site, it can be said that there is a demarcation between the house of the defendants and the plaint schedule site. There is also an old veranda on the southern boundary of the plaint schedule site and these physical features are also tallying with the physical feature described in Ex.A1. So the description of the plaint schedule property given by the Advocate- Commissioner with reference to Ex.A1 sale deed, schedule of boundaries coupled with the evidence of PWs.1 to 3 make it clear that Ex.A1 sale deed relates to the plaint schedule property. The ﬁnding recorded by the lower appellate Court is on re-appreciation of evidence. No doubt, it is well stated that the plaintiﬀ cannot succeed on the weakness of oral and documentary evidence of the defendant, but the plaintiﬀ established title, right and possession of herself and her ancestors over the suit schedule property since 1921. In view of the same and since there is perversity to the ﬁnding recorded, no question of law much less substantial question of law arise to admit second appeal, I have no hesitation to hold that the judgment and decree passed by lower appellate Court needs no interference. Accordingly, the second appeal is dismissed. __________________ A.GOPAL REDDY,J rkk Dated: 18-11-2011