IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.SWAROOP REDDY SECOND APPEAL NO : 106 of 2006 (Appeal under Section 100 of CPC against the decree dated 30/09/2004 in AS No. 302 of 1998 on the file of the Court of IX ADDITIONAL DISTRICT JUDGE(FTC), VISAKHAPATNAM preferred against the decree dated 22/09/2098 in OS No. 1298 of 1995 on the file of the court of I Additional Junior Civil, Visakhapatnam) Between: 1 Surisetti Parvathi W/o Paradesi Naidu R/o D.No. 1-51-8/1, Venkojipalem, Visakhapatnam. 2 Malla Rajamma W/o Gopi R/o D.No. 1-51-8/1/1, Venkojipalem, Visakhapatnam. ..... APPELLANTS AND The Visakhapatnam Urban Development Authority Rep. by Secretary Secretary The Visakhapatnam Urban Development Authority Vuda Complex, Visakhapatnam. .....RESPONDENT Counsel for the Appellant:MR.S.SREERAMACHANDRA MURTHY Counsel for the Respondent No.: MRS.V.PREETI REDDY The Court Delivered the Following JUDGEMENT:-- PSR, J. S.A.No. 106 of 2006 J u d g m e n t: This second appeal is filed against the judgment of the learned IX Additional District Judge (Fast Track Court) Visakhapatnam in A.S.No. 302 of 1998, under which the learned judge confirmed the judgment of the learned I Additional Junior Civil Judge, Visakhapatnam in O.S.No. 1298 of 1995. 2. The facts are as follows: The suit schedule property was purchased by the parents of the plaintiffs in 1970 under a registered sale deed from Peela Appa Rao and others. The total extent of the property is 0.35 cents. It was divided into two shares and one share was given to the father of the plaintiffs and another share was given to the mother of the plaintiffs. On 19.10.1974 the plaintiffs' father executed a Will bequeathing his share of property to plaintiffs and delivered possession of the property. From then onwards they have been in possession and enjoyment of the said property. Their father died in the year 1982. On 15.09.1995 the officials of the defendant visited the suit schedule property and have taken measurements; on questioning, the officials represented that all the vacant sites in the city limits would vest with the defendant; they are going to take possession of the property; but with the help of neighbours they could protect their possession. 3. The defendant-VUDA filed its written statement contending that the Government acquired Ac.0.61 cents of land vide Award No. 13 of 1980 on 30.10.1980. Like wise, the land possessed by the father of the plaintiffs was also acquired under the same Award. The land owners handed over physical possession of the property on 7.7.1981 and it was delivered to VUDA on 17.7.1981. The VUDA developed the property into house sites in the name of "MVP" Township and it was handed over to the Municipal Corporation. The Municipality proposed to construct a compound wall around the vacant site and due to some misunderstanding the Municipal Corporation constructed compound wall enclosing Plot Nos. 43 and 44, and, therefore Plot Nos. 43 and 44 were not allotted to any body. In 1995, the discrepancy was noticed by the VUDA and notified the said plots for sale. The plaintiffs are not in possession of the schedule property. 4. On the basis of the above pleadings, the following issues are framed for trial: i) Whether the plaintiffs are in possession of the suit schedule property? ii) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? iii) To what relief? 5. On behalf of the plaintiffs, PWs 1 to 4 were examined and Exs A-1 to A-6 were marked and on behalf of the defendant, DWs 1 to 3 were examined and Exs B-1 to B-9 are marked. 6. On the basis of the evidence on record, the learned trial Judge dismissed the suit, which was for mere injunction. As against the same the plaintiffs filed an appeal, which also met with same fate and the present second appeal is filed against the dismissal of the appeal suit. 7. The point that arises for consideration is whether there are any grounds for allowing the appeal? 8. The undisputed facts are - the suit schedule property was purchased by the father of the plaintiffs in 1970 under Ex A-1 and he died in the year 1982. Before that there were acquisition proceedings under Award No. 13 of 1980 covering the suit schedule land. The case of the plaintiffs is that the marriage of the first plaintiff has taken place in 1972; whereas the marriage of the second plaintiff has taken place in 1974 and at the time of their marriages, the property was gifted to them by way of oral gift and subsequently a will was executed in 1974, itself. Thus, in 1972 and 1974 respectively, the plaintiffs became owners of the property by virtue of the gift deeds executed by their father and they have been in possession of the property. 9. The courts below gave a finding that on the date of filing of the suit, the plaintiffs were not at all in possession of the suit property and the oral gift cannot be accepted to be a valid one. Even the Will allegedly executed by the father of the plaintiffs on 19-10- 1974, is accepted to be true also, it is of no use, as even in 1980, during the life time of the father of the plaintiffs, itself , the property was acquired by the Government; their father demised only 1982; as such the Will has come into force only in 1982, by which time, father of the Plaintiffs was no longer the owner of the property - consequently no title passed on to the plaintiffs. 10. As far as the oral gifts made in 1972 and 1974 are concerned, these are unilateral transactions. Admittedly, no documentary evidence in support thereof is filed and the plea might have been taken for the purpose of the suit. No doubt, as contended by the learned counsel for the plaintiffs/appellants there is practice of giving of property to the daughters at the time of marriage; but, in the absence of authentic material with regard to the property being gifted at the time of marriages in this particular case; and in view of the further fact that father of the plaintiffs had received compensation much later, in 1980 with regard to the property acquired; the acquisition, itself, being challenged by him by way of filing writ petition - W.P.No. 5445 of 1980, which was dismissed by this court, no credence can be given to the alleged oral gifts of 1972 and 1974, even assuming that such a gift has taken place. As there was no recorded evidence with regard to the ownership of the property by the plaintiffs, they were not parties to the land acquisition proceedings and as the property was standing in the name of the father and he challenged the proceedings; as such it can constructively be treated that the plaintiffs have challenged the acquisition proceedings as well. 11. Father of the plaintiffs that had executed the Will died in 1982 and when in the year 1980, itself, the land acquisition proceedings were initiated, as already referred; there could not have been any passing of title under the Will to the plaintiffs. Thus, there is absolutely, no material to show that the plaintiffs are the owners of the property, as on the date of the suit. The suit was filed for mere injunction. No doubt, there is prima facie case to show that they were in possession of the suit schedule property. There has been injunction in their favour during the pendency of the suit, appeal and the second appeal. Still finding of the courts below is that they were not in possession of the property on the date of filing of the suit. This being a question of fact, cannot be reversed in this second appeal, particularly in view of the fact that the plaintiffs had no title to the property; in view of the further fact that their father had received compensation for the property in 1980, itself. Moreover, the children of the party, whose land has been acquired under due process of law, cannot squat over the property and claim for mere injunction. In all these circumstances, I see no substantial question of law or any other merit in this second appeal and the same is liable to be dismissed. 12. In the result the second appeal is dismissed. In the circumstances, the parties are directed to bear their respective costs. _______________________ P. SWAROOP REDDY, J. August 18, 2009. *BVS