IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND ELEVEN :PRESENT: THE HON'BLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL NO.18 of 2004 Between: Penugonda Subbayya (died) and others ..... APPELLANTS AND Penugonda Venkata Rao .....RESPONDENT The Court made the following: JUDGMENT: This second appeal is filed aggrieved by the judgment and decree dated 11-09-2003 passed in A.S.No.9 of 1998 on the file of the Senior Civil Judge, Ramachandrapuram, whereby and whereunder the learned Senior Civil Judge confirmed the decree and judgment dated 02-02-1998 passed by the District Munsiff, Alamuru, in O.S.No.122 of 1990. 2. I have heard the learned counsel appearing for the appellants-defendants and respondent-plaintiff. 3. The following substantial questions of law stated in a, b and c on ground No.5 have been considered by the learned Single Judge as substantial questions of law at the time of admitting the Second Appeal: a) Whether the courts below could refuse to deal with the evidence and given a positive finding with regard to the plea of adverse possession, which was pleaded alternatively by the 1st defendant, solely on the ground that such a plea is not available to defendant, alternatively while tracing his title through documents of title? b) Whether the Courts below were justified in not considering the resurvey and bifurcation of R.S.No.211/2, which initially contained entire 0.90 cents of defendant, predecessor under Ex.B3, dt.24-1-1921, into R.S.No.154/4 to an extent of 0.77 Cents and in R.S.No.154/1 to an extent of 0.13 Cents towards eastern side out of total extent of Ac.1-77 Cents by ignoring the true copy of re-settlement register, on the sole ground of non- examination of the author of the said document. c) Whether the Courts below could hold by placing heavy reliance on the reports of the advocate Commissioner, to hold that defendant encroached 0.13 Cents of land into plaintiff land, ignoring the fact that the Commissioner and the Surveyors did not measure the land with the help of Revenue Records, and especially when Survey Stores are not available and whether such finding ignoring vital documentary evidence of defendant is not perverse. 4. The schedule mentioned properties consists of total extent of Ac.1-77 Cents covered by R.S.No.154/1 of Penikeru village which is red marked portion as X, B, C and Y of the plan annexed to the plaint. 5. According to the plaintiff, who is the absolute owner of the total extent of Ac.1-77 Cents of land in R.S.No.154/1 of Penikeru village which was purchased under registered sale deed marked as Exs.A-1 and A-3 and the first defendant encroached an extent of Ac.0-16 Cents of land in R.S.No.154/1 against which the plaintiff sought declaration of title and recovery of possession and also relief of mandatory injunction for removal of coconut trees planted by the defendant in the said piece of land. 6. On the other hand, the contention of the defendants is that the first defendant purchased 90 cents of land under Ex.B-1 sale deed dated 11-04-1993 and their case was that out of the total extent of Ac.0-90 Cents Ac.0-77 Cents is situated in R.S.No.154/4 and the remaining extent of Ac.0-13 Cents also is situated in R.S.No.154/1. Thus, they claimed an extent of Ac.0-13 cents in R.S.No.154/1 as belonging to them. 7. Before the learned Trial Court PWs.1 to 7 were examined on behalf of the plaintiff and documents Exs.A-1 to A-16 were marked. DWs.1 to 5 witnesses were examined on behalf of the defendants and Exs.B-1 to B-9 documents were marked. 8. The learned trial Court upon considering the entire evidence on record with reference to pleadings of both the parties held that the plaintiff could be able to prove by Exs.A-1 and A-3 sale deeds and the other documents marked as Exs.A-8 to A-14 that he has title in respect of entire land an extent of Ac.1-77 Cents in R.S.No.154/1 and that his predecessors also have a valid title to the said property. 9. The learned trial Court also took into consideration the evidence of PW-7 – the Mandal Revenue Officer and the certified copies of Adangal extracts marked as Exs.A-11 to A-14 and held that predecessors of the plaintiff are shown as title holders of total extent of Ac.1-77 Cents of land in R.S.No.154/1. 10. The learned trial Court also took consideration the Ex.C-3 the Advocate Commission’s plan and report which revealed that total extent in possession of the plaintiff in R.S.No.154/1 is Ac.1- 55 and odd Cents and the total extent of land in R.S.No.154/4 is Ac.0-93 Cents. The trial Court further noticed that as per the report of the second Commissioner who was appointed for the same purpose pursuant to the orders of the High Court and Ex.C-6 the plan drawn by the second Commissioner and his report, the total extent of land in R.S.No.154/1 is Ac.1-56 Cents and the total extent of land in R.S.No.154/4 is Ac.0-93 Cents. 11. Referring to the evidence adduced by the defendant the trial Court categorically held that the defendants failed to establish that they have title in respect of the land of an extent of Ac.0-13 Cents in R.S.No.154/1. 12. The learned trial Court also held that the defendant failed to prove that the survey numbers have been changed and the old Sy.No.211/2 is bifurcated into R.S.No.154/1 and also R.S.No.154/4 rightly on the ground that the author of the true copy of the settlement register was not examined by the defendant. 13. The trial Court also held that no evidence in proof of the alternative plea of adverse possession has been adduced by the defendants and therefore, they failed to establish the said plea also. Ultimately, the learned trial Court passed the Judgment granting the reliefs of declaration of title, possession and mandatory injunction of removal of trees and decreed the suit in favour of the plaintiff. 14. The learned first appellate Court in A.S.No.9 of 1998 on re- appraisal of the oral and documentary evidence confirmed all the findings of the learned trial Court. In fact, in this case no substantial questions of law is involved for consideration in this Second Appeal. The questions which were raised in the grounds of appeal are the pure questions of fact which are well considered by both the Courts below. 15. Absolutely there is nothing to indicate that the findings of the Courts below are perverse or contrary to evidence on record. This Court is not supposed to interfere with the findings of the fact, which attained finality. 16. For the forgoing reasons, the Second Appeal is devoid of any merit and is dismissed. There shall be no order as to costs. ____________________ R. KANTHA RAO, J January 31, 2011. PN THE HON'BLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No.18 of 2004 January 31, 2011