HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.631 OF 1992 JUDGMENT: The plaintiffs in O.S.No.652 of 1983 on the file of the Principal Subordinate Judge, Ranga Reddy District at Saroornagar, are the appellants herein. The suit was one filed for declaration of title and for recovery of possession of the property to an extent of 30 guntas in Sy.No.77/90 situated at Erragadda, Fetehnagar, Hyderabad. 2. The allegations in the plaint go to show that plaintiffs Nos.1 to 4 related and they along with plaintiffs Nos.5 and 6 have purchased jointly an extent of Acs.4.00 Gts., i.e., an extent of Ac.0.30 Gts., in Sy.No.68/81, Acs.0.22 Gts., in Sy.No.19/82, Ac.0.04 Gts., in Sy.No.70/80 and Acs.2.24 Gts., in Sy.No.77/90 under a registered sale deed dated 24.05.1966 from Sri Omer Bin Yunus for a valuable consideration proceeded by an agreement of sale dated 11.11.1963. They have been in continuous possession and enjoyment of the property. The suit schedule property is the land in Sy.No.77/90. The defendants are strangers to the suit land. Defendant No.4 and husband of defendant No.6 by name Nepal Singh filed a suit O.S.No.2124 of 1975 on the file of the V Assistant Sessions Judge, City Civil Court, Hyderabad, for injunction against the plaintiffs with regard to the suit land and the said suit was dismissed and an appeal was preferred and it was also dismissed. They have encouraged the other defendants and all of them have occupied the schedule property on 16.03.1982 without any right or title. Hence the suit. 3. Defendants Nos.1 to 3 filed a written statement contending that the plaintiffs have no right in the suit schedule property and their purchase is not valid. The vendor Omer Bin Yunus has no manner of right, he was never in possession of the property. The defendants have been in actual possession and enjoyment of the property since more than 30 years. These defendants are not aware of the earlier suit O.S.No.2124 of 1975. The defendants have been in actual possession and enjoyment and hence the suit is liable to be dismissed. 4. Defendant No.5 filed a written statement, which was adopted by defendant Nos.4 and 6. The land out of Sy.Nos.76 and 77 of Fateh Nagar village was purchased by Nepal Singh and defendant No.4 jointly in 1955. Ever since late Nepal Singh and Shiv Mukhi Devi were in peaceful possession and enjoyment of the land. Late Nepal Singh is the elder brother of defendant No.5. Defendant No.4 is the divorced wife of defendant No.5. Defendant No.6 is the widow of late Nepal Singh. At a later stage the owners of the land filed Suit O.S.No.347 of 1961 against Nepal Singh, defendant No.4 and Omar Bin Yunus. The said suit was compromised on 20.11.1962 and the title of these defendants was upheld. As per the said compromise decree in O.S.No.347 of 1961 these defendants are in possession of Acs.2.20 Gts., out of Sy.Nos.76 and 77. Thereafter, these defendants made constructions in the land and raised compound wall. Since the land belongs to the joint family the land is partitioned among joint family members through Court. The defendants further submit that they were paying land revenue for the land in their possession and were possessing pass and patta books for the same. They have filed return before the Urban Ceiling Authority regarding the land. The defendants are ex-servicemen and they have purchased the land out of their hard earnings. 5. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the plaintiff has been in possession of the suit land? 2) Whether the plaintiff is entitled to the injunction as prayed for? 3) Whether the defendants have been in possession for more than 12 years? 4) To what relief? The following additional issue has been framed for trial: Whether the plaintiffs are entitled for declaration of the title and recovery of possession? 6. On behalf of the Plaintiffs, PWs.1 to 4 were examined and marked Exs.A.1 to A.19. On behalf of the defendants, DWs.1 to 11 were examined and marked Exs.B.1 to B.21. After considering the material on record, the lower Court has dismissed the suit and aggrieved by the said Judgment, the present appeal is filed. 7. The points that arise for consideration are: 1) Whether the plaintiffs are entitled for declaration and recovery of possession of the property? 2) Whether the Judgment and decree passed by the lower Court is legal and sustainable? 8. POINTS: This being a suit for declaration of title and recovery of possession, it is for the plaintiffs to establish their right in the schedule property. The dispute in this case relates to 30 guntas of land in Sy.No.77/90. According to the plaintiffs, they claim to have purchased the property from Omer Bin Yunus. The plaint is silent as to how Omer Bin Yunus has got rights in the schedule property. But, when the evidence was adduced, it has come on record that O.S.No.47 of 1961 on the file of the II Additional Judge, City Civil Court at Shah Ali Banda, Hyderabad, was filed by the owners of the property including Omer Bin Yunus, Nepal Singh and defendants Nos.1 and 4. In that suit, a compromise has been effected and a compromise decree was passed, which is marked as Ex.A.7 and in that it has been specifically mentioned that Omer Bin Yunus was the protected tenant of the property in Sy.No.77/90A measuring an extent of Acs.6.33 Gts., in Sy.No.77/90A and the owners have agreed to transfer the interest in the entire Sy.No.77 excluding the extent As.3.18 Gts., which was transferred in favour of defendants No.1 to 4, who are Nepal Singh and others. It was further stated that as per the compromise, the parties, should obtain the necessary certificate from the revenue authorities. Therefore, the above compromise decree clearly goes to show an extent of Acs.3.18 Gts., was found to be the property in which Nepal Singh and Shiv Mukhi, the 4th defendant in the suit, were found entitled along with Radhika Rani and A.N. Singh. It further stipulates that the parties have to obtain the necessary certificates from the revenue authorities. 9. Evidently, in this case, the plaintiffs have not filed the necessary certificates under Section 38 of the Hyderabad Tenancy Agricultural Lands Act in favour of Omer Bin Yunus and the protected Tenancy Certificate and the sale deeds are also not produced. Even otherwise, the right of Omer Bin Yunus is only to an extent of Acs.6.36 cents and out of which the plaintiffs claim to have purchased Acs.2.24 Gts. There is no material to show as to how this land has been demarcated and when it has been demarcated. There is also no proof of an earlier agreement of sale, which was relied on by the plaintiffs when the property was sold by Omer Bin Yunus. It is true that in the earlier suit O.S.No.2124 of 1975 on the file of V Assistant Sessions Judge, City Civil Court, Hyderabad, the suit was dismissed and evidently that suit relates to land in Sy.Nos.76 and 77. The extent of the property in dispute in Sy.No.77/90 was not specifically mentioned. That suit was dismissed finding that there is no proof of possession. But, it ignores the fact that the compromise Ex.A.7 clearly shows the possession of Nepal Singh to an extent of Acs.3.18 Gts., of land. Even otherwise the objection taken that their declaration for title was claimed, the title was kept open to be decided later. In fact, in this case, the plaintiffs themselves admit the possession of the defendants and consequently, the Judgment in the earlier suit cannot be taken as finality and operating as res judicata. The lower Court also found that except the sale deed Ex.A.1 the plaintiffs could not file any document of their possession and enjoyment. It is for the plaintiffs to show that as to which part of the land was demarcated and the possession was given to them by vendor as to what was the property in possession of Nepal Singh and others. In this case, there is absolutely no material evidence to show that the suit schedule property, which is 30 guntas was the part of the land that has been actually allotted to Omer Bin Yunus and he has been in possession of the property. In fact, the Northern boundary in the plaint schedule shows that A.N. Singh is the owner of the property and the evidence of PW.2, who is the 3rd plaintiff, does not disclose about the identity of the property. He cannot say what was the extent in Sy.No.77/90 and what was the extent sold by them. The sale deed Ex.A.1 clearly goes to show that the northern boundary is the part of the land belonging to A.Singh and Nepal Singh comprised in Sy.No.77/90. Therefore, it leaves no doubt about the fact that the land owned by the Nepal Singh and his family abuts the property claimed by the plaintiffs. In such circumstances, it is for the plaintiffs to prove the identity of the property and also the fact that their vendor has got the schedule property. Mere filing of Ex.A.1 is not a proof when title is disputed and denied. The evidence on record is not sufficient to hold that the plaintiffs are the owners of the schedule properties. Mere dismissal of the earlier suit for injunction is of no consequence when the plaintiffs now admit that the defendants are in possession of the property. Therefore, there are no merits in the appeal. Accordingly, the points are answered. 10. In the result, the Appeal Suit is dismissed. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date: 26.09.2011 INL