THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.684 OF 2011 Dated:15.09.2011 Between: Pentapati Srinu .. Appellant And Mallimoggala Janardhanam and others .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.684 OF 2011 JUDGMENT: The suit being O.S.No.1060 of 1999 on the file of the Court of the I Additional Junior Civil Judge, Rajahmundry, filed by the first respondent (hereafter, the plaintiff) for ejection of respondents 7 to 13 (hereafter, the defendants 1 to 7), the appellant herein (defendant No.9) and another was decreed directing the defendants 1 to 7 to deliver the possession of Item Nos.1 and 2 of the suit schedule property. The suit against defendants 8 and 9 in respect of item No.3 of suit schedule property was dismissed. The plaintiff then filed A.S.No.151 of 2004, against the decree in so far as it was against him, on the file of the Court of the V Additional District Judge (Fast Track Court), Rajahmundry. He died during the pendency of the first appeal and his legal representatives – respondents 2 to 6 herein came on record. The appeal was allowed directing ejectment of defendants 8 and 9 from Item No.3 of the suit schedule property, aggrieved by which the present Second Appeal is filed by defendant No.9. Tirupathamma was the owner of Item Nos.1 to 3 of suit schedule property. She had leased out Item Nos.1 and 2 to one K.Satyanarayana who was a statutory tenant under the Andhra Pradesh (Andhra Area) Tenancy Act, 1956. After his death in 1957, his son Narasimha Rao, the husband of the first defendant and father of defendants 2 and 3, exercised option to cultivate Item Nos.1 and 2. Item No.3 all along was in possession of Tirupathamma. She executed a Will dated 25.05.1988 in favour of the original plaintiff. She had filed O.S.No.62 of 1986 for recovery of possession. After her death, the suit was abated. Therefore, the plaintiff filed O.S.No.1060 of 1999 alleging that after death of Narasimha Rao, his successors did not exercise option to be the tenants; their tenancy was terminated; the father of defendant No.9 – Shesha Rao was Uddaraka (care taker) of the land (Item No.3) on behalf of Tirupathamma and that they had no right to continue in the property. Defendant No.9 in the written statement claimed title alleging that his predecessors are the owners of the property and obtained pattedar pass book and title deeds. During trial, the plaintiff examined five witnesses and marked 26 documents. The appellant herein deposed as DW.1. Besides his evidence, DWs.2 to 6 were also examined and 17 documents were marked on behalf of the defendants. The trial Court decreed the suit in so far as Item Nos.1 and 2 are concerned, but dismissed the suit insofar as Item No.3 observing that Tirupathamma never enjoyed the property; Shesha Rao was in possession of the property 25 years prior to his death; and when plaintiff issued notice Ex.A20 there was no reference made to Exs.A1 to A10 and A12 and therefore the plaintiff is not entitled to evict the defendants 8 and 9. On appeal, the appellate Court relied on the admissions made by DW.1 in his cross-examination and reversed the judgment of the trial Court. The counsel for the appellant/defendant No.9 submits that Exs.A7 to A10 and A12 do not confer title on the predecessor of the plaintiff and the appellate Court was in error in considering these documents in favour of the plaintiff. He would urge that Ex.A12, which is a third party affidavit of Sesha Rao itself does not prove that Tirupathamma was the owner of the land and when Ex.A12 which was filed in O.S.No.657 of 1997 in which Ex.A12 affidavit was filed itself was withdrawn, it is not admissible under Section 33 of the Evidence Act, 1872. There cannot be any dispute that the plaintiff filed the suit for eviction claiming ownership of the property under the registered Will Ex.A3 dated 02.05.1988. There was no serious challenge to the same. The appellant and his mother claimed that they are the owners of the land by reason of long possession denying the allegation that their predecessor Shesha Rao was a care taker of the land on behalf of Tirupathamma. Hence, the burden entirely rests on defendant No.9 to prove the title. Except pointing out the weaknesses in the documents relied on by the plaintiff, no evidence was let in by defendant No.9. Further as observed by the first appellate Court, DW.1 (appellant herein) admitted that they do not have any title deeds in respect of Item No.3 of the suit schedule property and that he has no objection to deliver the property which does not belong to him. This crucial admission falsifies the case of the appellant. Further Ex.A12 was a third party affidavit given by Shesha Rao (husband of defendant No.8 and father of defendant No.9) wherein he admitted that he is a farm servant of Tirupathamma for wages and that the land in L.S.No.353 admeasuring Acs.2.00 (Item No.3) was acquired by Tirupathamma from Venkat Rao. The first appellate Court correctly came to the conclusion after relying on the same. The Second Appeal is misconceived and is accordingly dismissed. There shall be no order as to costs. ________________ (V.V.S. RAO, J) 15.09.2011 KH