IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE THIRTEENTH (13TH) DAY OF DECEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Second Appeal No.361 of 1994 Between: Yedavalli Ramakrishnaiah (died) & others … Appellants And: Baji Saheb & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Second Appeal No.361 of 1994 JUDGMENT: This second appeal is directed against the decree and judgment dated 29.06.1994 in AS No.110 of 1986 on the file of the I Additional District Judge, Rajahmundry, wherein the said appeal filed by the respondents 1 and 2 herein, was allowed, setting aside the decree and judgment dated 11.06.1986 in OS No.87 of 1979 on the file of the Principal District Munsif, Rajahmundry and consequently dismissing the said suit. 2. Heard both sides. Perused the record. 3. The first appellant herein filed suit OS No.87 of 1979 against the respondents 1 and 2 for declaration of title to the plaint schedule property, for recovery of possession, for recovery of past profits in a sum of Rs.720/-, for recovery of Rs.300/- being costs of the material of the old house and for future profits. According to the plaintiff, he purchased the suit property from Ponnada Bangaraiah under a registered sale deed dated 08.12.1966 and the thatched house therein was in a dilapidated condition and the plaintiff was not visiting the schedule property often and in the year 1971 he found that one Abdul Razack and two others occupied the suit property and raised thatched house with the material of the dilapidated house and thereafter, the plaintiff got issued notice 15.02.1971 demanding Abdul Razack and two others i.e., Pothula Apparao and Shariff Saheb, to vacate the schedule property. It is further pleaded that while Abdul Razack received notice and kept quiet, two others vacated the premises and gave up possession. In the year 1974, Abdul Razak falsely setting up a title in his wife Fatimunnisa Begum, who executed a sale deed in favour of 3rd defendant in 1974 and inducted her in possession. Thus, according to the plaintiff, the defendants are trespassers over the portion of the suit property. Hence, the suit for declaration of title and for eviction. 4. The first defendant remained ex-parte. The defendants 2 and 3 filed written statement contending that the 3rd defendant is the owner of the schedule property and having purchased the same from Fathimunnisa Begum under a registered sale deed dated 18.11.1973 for Rs.1,000/- and that the 3rd defendant’s vendor purchased the property from Goteti Mariyamma and Goteti Surayya under registered sale deed dated 15.06.1969. It is further contended by the 3rd defendant that even by then there was a thatched house in existence, which originally belonged to one Goteti Ramanna and after his death, his widow and children succeeded to the property and enjoyed the same till they sold under sale deed dated 15.05.1969 in favour of Fathimunnisa Begum. Thus according to 3rd defendant, the suit property never belonged to Bangaraiah and the alleged purchase of the same by the plaintiff from Bangaraiah is false. It is further pleaded by the 3rd defendant that after purchase, he renovated the thatched house and constructed new hut, comprising two portions and let out the same to the defendants 1 and 2 and that the first defendant vacated the same about one year prior to the suit. 5. On the strength of the pleadings, the trail Court framed the following issues. 1. Whether the plaintiff has got title to the suit property? 2. Whether the plaintiff is entitled to any mesne profits? If so to what amount? 3. Whether the defendants 2 and 3 prescribed title to suit property by adverse possession? 4. Whether the plaintiff is entitled to damages as claimed in the suit? 6. During trial, PWs.1 and 2 were examined and Exs.A.1 to A.8 were marked on behalf of the plaintiff and DWs.1 and 2 were examined and Exs.B.1 to B.16 were marked on behalf of the defendants. During hearing of the first appeal, Ex.A.9 was marked with consent of both the parties. 7. On a consideration of the evidence available on record, the trial Court held that the plaintiff established his title over the suit property. Accordingly, the suit was decreed granting two months time to the defendants to vacate the premises and gave liberty to the plaintiff to file fresh petition for future mesne profits. Aggrieved by the same, the defendants filed appeal in AS No.110 of 1986. By impugned judgment, the learned Additional District Judge, set aside the decree and judgment passed by the trial Court and consequently dismissed the suit holding that Fathimunnisa Begum was in possession of the house bearing No.44-14-4 and neither Bangarayya nor the plaintiff was never in possession of the same and the plaintiff has failed to establish his title over the suit property. Hence, the present appeal by the plaintiff. 8. Ex.A.7 is the sale deed dated 13.06.1934 under which Goteti Suranna purchased an extent of 168 sq. yards in two items of 84 sq. yards each along with one palmyrah thatched house in each item situated in Sy.No.380-C in 24th ward of Danavaipeta in Rajahmundry Municipality from Gangi Venkataswamy. Goteti Suranna also purchased 84 sq. yards with a house thereon from Morampudi Appalaswamy under registered sale deed dated 17.12.1934. Goteti Suranna mortgaged both the properties purchased by him under Exs.A.7 and A.9 in favour of Ponnada Bangarayya under Ex.A.6 registered mortgage deed dated 25.08.1936. Unable to discharge the mortgage debt, Goteti Suranna, sold the property covered by Ex.A.7 in favour of Ponnada Bangarayya under registered sale deed Ex.A.4 dated 14.02.1939. The said item was sold by Bangarayya in favour of the plaintiff under Ex.A.1 registered sale deed dated 08.12.1966. Thus Exs.A.7 and A.4 are prior title deeds for Ex.A.1 under which the plaintiff purchased the property. The evidence on record discloses that Goteti Suranna purchased the similar extent of 84 sq. yards with house thereon under registered sale deed Ex.A.9 dated 17.12.1934 from Morampudi Appalaswamy, which was also mortgaged in favour of Bangarayya along with other item. The property covered by Ex.A.9 was sold to Fatimunnisa Begum W/o Abdul Razak under registered sale deed Ex.B.2 dated 15.05.1969 by Goteti Surayya and his sons and Fatimunnisa Begum in turn sold to 3rd defendant under Ex.B.1 dated 18.11.1973. Thus, Exs.A.9 and B.2 are prior title deeds for the property covered by Ex.B.1, which is purchased by 3rd defendant. In both Exs.B.1 and B.2, the western boundary is shown as G.S. National School in Sy.No.363. Ex.B.17 Town Survey register showed that an extent of Ac.7.00 comprised in Sy.No.363 pertains to G.S. National School. In Ex.A.9 under which Goteti Suranna purchased the land from Morampudi Appalaswamy, the western boundary is shown as Sy.No.363. 9. The learned Additional District Judge on a scrutiny of the schedules in the respective title deeds and the link documents of both parties has therefore concluded that the suit property bearing Door No.44-14-4 was not the property purchased by the plaintiff under Ex.A.1 and in fact, it was purchased by 3rd defendant under Ex.B.1. Admittedly, the plaintiff has not filed any tax receipts showing his possession and enjoyment of the suit property, whereas 3rd defendant filed Exs.B.3 to B.16 demand notices and receipts, showing the payment of tax, which all showed payment of tax by the 3rd defendant for the house bearing Door No.44-14-4. The property tax demand register also showed the name of Fathimunnisa Begum, vendor of 3rd defendant as owner of the house. 10. The learned Additional District Judge also noticed that though Ex.A.9 was filed before the trial Court, the same was not marked by mistake as it got mixed up with Ex.A.7 and thinking that both the documents are one and the same. The impugned judgment also shows that Ex.A.9 was marked during appeal with the consent of both the parties. Thus, the evidence on record established that the properties claimed to have been purchased by the plaintiff and 3rd defendant from their respective vendors are distinct and separate and the suit schedule property, was in fact the property purchased by 3rd defendant from Fathimunnisa Begum and the plaintiff has failed to establish either title or possession in respect of the same. 11. The contention of the learned counsel for the first appellant that the first appellate Court erred in law in giving finding about the identity of the property even without framing any issue in that regard, is misconceived, as the said finding regarding identity of the property is duly covered by the issue No.1, which relates to the claim of title. While deciding the said issue regarding the title, the Court has to incidentally go into the question of identity of the property. After scrutiny of the contents of the title deeds and the link documents produced by both parties, the appellate Court has recorded finding to the effect that the two properties claimed by the plaintiff and 3rd defendant are distinct and separate and insofar as the suit property is concerned, the plaintiff failed to establish either title or possession, whereas 3rd defendant was able to establish his claim over the same. In a suit for declaration of title and for recovery of possession, the burden squarely lies on the plaintiff to establish his claim of title and possession on his own. 12. In the present case, the plaintiff has miserably failed to establish that the suit property was purchased by him as claimed or that he was in possession and enjoyment thereof at any time. Under those circumstances, the first appellate Court has rightly set aside the decree and judgment passed by the trial Court and consequently, dismissed the suit filed by the first appellant herein- plaintiff. The said finding recorded by the first appellate Court on a question of fact, does not therefore call for any interference in the second appeal, as the same does not suffer from any vice of perversity. No question of law, muchless substantial question of law arises for consideration in this second appeal. 13. In the result, the second appeal is dismissed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 13.12.2011 bss