HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.131 OF 1999 Dated 30-9-2010 Between: Tanumaddi Venkateswara Reddy and others. …Appellants. And: Karumudi Rami Reddy and others. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.131 OF 1999 JUDGMENT: This is an appeal filed by the plaintiffs against the reversal of the decree granted to him by the trial Court. The case of the plaintiff before the trial Court was that he was the owner of the suit schedule extent marked as ‘A.B.C.D.’ in the plaint plan. Plaintiff claims that he purchased the same under two different sale deeds Ex.A.1 dated 6-7-1972 and Ex.A.2 dated 22-9-1982. The plaintiff claims that to the extent of land covered by Ex.A.1, there is no controversy and the defendants are not denying the plaintiff’s title and possession. But, to the extent of the land covered by Ex.A.2, the defendants are disputing the title of the plaintiff which compelled the plaintiff to seek the relief of the declaration of title to the extent of land covered by Ex.A.2 and for injunction. The respondents/defendants resisted the suit by contending that there is no land of plaintiff’s vendor to the North of Ex.A.1 land. They claim that Ex.A.1 itself shows the northern boundary is a gully which pre-supposes that the vendor of the plaintiff did not have any land towards the North of Ex.A.1 land but under Ex.A.2 sale deed plaintiff’s claim the land towards the North of land covered by Ex.A.1. The trial Court framed the issues and recorded the evidence of both parties in paragraph 17. The trial Court was of the view that the plaintiff has failed to establish his vendor’s title for the land covered by Ex.A.2 sale deed. But in later paragraph 21, the trial Court came to a conclusion that plaintiff’s suit deserves to be decreed in view of the fact that the plaintiff has proved Ex.B.1 sale deed relating to the defendants 3 to 5 whereunder the Eastern boundary as referred to the suit schedule property is shown as land of the plaintiff’s vendor to the extent of 9 ½ square yards. The trial Court was therefore of the view that the said Eastern boundary in Ex.B.1 establishes the plaintiff’s vendor’s title covered by Ex.A.2 sale deed and consequently decreed the suit. The appellate Court reversed the decree by noticing the Northern boundary in Ex.A.1 and found that the plaintiff’s vendor has himself not claimed any land to the North of Ex.A.1 land and has described the same as a gully. In the absence of any title documents of plaintiff’s vendor, substantiating that his vendors are the owners of land covered by Ex.A.2, the appellate Court reversed the decree. Hence this Second Appeal. By order of this Court dated 7-6-2000, the appeal was admitted on substantial questions of law as framed in the grounds of appeal which covered a large number of grounds under para 14 all of which are questions of fact. However, the substantial questions of law as mentioned in the Memorandum of Appeal on which the appeal was admitted are as follows: 1. Whether the judgment of the appellate Court is not vitiated by non-application of mind and non- consideration of the crucial aspects of the case mentioned in Ground No.14? 2. When in the absence of any pleading that the plaintiffs have no title to or possession of Ex.A.2 site or that the defendants have title to or possession of Ex.A.2 site and when Ex.B.1 and the admissions of D.Ws.3 and 4 establish the title of the plaintiffs to Ex.A.2 site, whether the learned appellate Court is justified in holding that the plaintiffs have not established their right and title to Ex.A.2 site and, as such, they are not entitled for the declaration of their title and for consequential permanent injunction as prayed for? Heard both the learned counsel appearing on either side. Learned counsel for the appellant contends that Ex.B.1 sale deed dated 10-2-39 relating to the defendants 3 to 5 is not disputed by the trial Court. The said sale deed was also proved in accordance with law and that the Eastern boundary therein clearly shows the extent of the land owned by the plaintiff’s vendor. Leaned counsel also points out that if the extent of the said Eastern boundary is taken into consideration and if the land covered by Ex.A.1 is deducted therefrom, the balance extent is clearly covered by Ex.A.2. Learned counsel therefore, contends that the third party sale deed of 1939 i.e., Ex.B.1 fully establishes the title of the vendor of plaintiff and the said document is relevant as the same was executed long prior to the present dispute. Learned counsel for the respondents on the other hand disputes the admissibility of the said document on the basis of a decision of the Division Bench of Madras High Court in V.A. AMIAPPA NAINAR (DIED) AND OTHERS v. N.ANNAMALAI CHETTIAR AND OTHERS ([1]) to contend that the recitals in a third party’s document are not admissible in evidence. In order to appreciate his contention, it could be appropriate to notice the boundaries in Exs.A.1 and A.2. “Ex.A.1 is the site within the boundaries of East-Circar Bazar measuring 14 feet, South: A portion of site of Shaik Lala Saheb and a portion of the site of Patan Mastan measuring 37 feet 3 inches West: Munnangi Veera Reddy measuring 16 feet 3 inches and North: Gully measuring 87 feet 3 inches of Gramakantam house site in Pothukatla village Panchayat” “Ex.A.2 is the vacant site bounded by East-Bazar measuring 9 feet, South, the site conveyed under Ex.A.1 measuring 87 feet 3 inches, West: The site of Munnangi Veera Reddy measuring 9 feet and North: The site of Karumudi Rami Reddy measuring 87 feet 3 inches.” It can be noticed from the above that even if the extent shown in Ex.B.1 sale deed of defendants 3 to 5 is accepted as proved and as an evidence of title of the plaintiff’s vendor, the northern boundary in Ex.A.1 shows that the plaintiff’s vendor himself has not placed reliance upon the Eastern boundary in Ex.B.1. The Northern boundary in Ex.A.1 is not only mentioned as gully measuring 87 feet 3 inches but it further states that it is a Gramakantam house site in Pothukatla village panchayat. If really plaintiff’s vendor was the owner of the land to the North in Ex.A.1, there was no reason as to why he would not mention the same and on the contrary would mention that to the North, there is the gally of Gramakantam house site. Since it is a suit for declaration filed by the plaintiff seeking title with respect to Ex.A.2, plaintiff has to first establish the title of his vendor to the land covered under Ex.A.2 and must sufficiently explain the Northern boundary in Ex.A.1 so as to claim the benefit of the contention that the plaintiff’s vendor was the owner of the land north of Ex.A.1 even if Ex.B.1 sale deed is assumed as accepted and proved in evidence. In any case, the third party’s document and recital as to boundaries whereunder, cannot be said to establish the title of the plaintiff’s vendor whose land is described in the boundaries. I am therefore unable to see any infirmity in the assessment of evidence and the reasoning of the lower appellate Court. In the absence of any perversity in the judgment of the lower Court, the substantial questions of law deserve to be answered in negative. Appeal accordingly is dismissed. However, there shall be no order as to costs. _____________________________________ Justice VILAS V. AFZULPURKAR Dated 30-9-2010. Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.131 OF 1999 Dated 30-9-2010 [1] AIR 1972 MADRAS 154