HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.2209 OF 1992 JUDGMENT: The plaintiff in O.S.No.699 of 1988 on the file of the Principal Subordinate Judge at Visakhapatnam, is the appellant herein. 2. The suit was filed for declaration of title with regard to 342 square yards of vacant site covered by A-schedule shown in red marked portion of the plaint plan and for eviction of the defendant from the said portion and for a permanent injunction from interfering with the possession and enjoyment of the plaintiff over the B-schedule to an extent of 2200 square yards. 3. The allegations in the plaint go to show that the plaintiff has purchased the plaint schedule properties and possession was delivered on 06.02.1961. The property is covered by plot No.29 of the lay out of T.D.No.1196 and 1997 in Town Survey Nos.1196/35 and a part of T.S.No.1187, which abuts the above survey number. The particulars of the property were shown in the plaint plan and were also mentioned by the letter dated 10.01.1962 by the Diwan and General Power of Attorney Holder late P.V. Raja Gopal Rao, who was the owner of the property. The plaintiff has been in continuous possession and enjoyment of the property and the Municipality accorded permission to the plaintiff for the construction of the house and compound wall in 1962 and accordingly, the plaintiff constructed the house and compound wall. The Canadian Baptist Mission (hereinafter referred to as “C.B. Mission) had made a layout of the T.S.No.1187 into several parts and the land of the plaintiff abuts the property of the C.B. Mission and it has no right to any extent to the East of the compound wall of the plaintiff. Even if any such rights are there, they shall be deemed to have been given up. Therefore, the plaintiff is the absolute owner of the property. While the matter stood thus, the defendant claims to have got a gift of land from C.B. Mission, which is to the West of the plaintiff’s compound wall. As he tried to enter into the site the plaintiff filed the suit O.S.No.1819 of 1982 on the file of the District Munsiff’s Court, Visakhapatnam, for injunction and interim injunction application was filed and it was granted, but subsequently, it was vacated. An appeal C.M.A.No.30 of 1985 on the file of the I Additional District Judge, Visakhapatnam was filed but so far as the land in Sy.No.1196/1935 is concerned interim injunction was granted but no injunction was granted for the land in Sy.No.1187. The defendant contended that the plaintiff has purchased only 700 square yards but the plaintiff is trying to encroach 2200 square yards. While the suit was pending, the defendant has demolished the compound wall in 1984 and an application for mandatory injunction was filed and that was dismissed. The suit was also dismissed and against that A.S.No.153 of 1985 on the file of the II Additional District Judge, Visakhapatnam, was filed and it was also dismissed. The learned District Judge did not accept the possession of 342 square yards of the appellant and also did not consider the title. A Second appeal was preferred and it was also dismissed observing that the findings given in the suit for injunction, where the question of title was involved, are not final. Hence the suit was filed for declaration and recovery of possession of 342 square yards of vacant site and also for injunction. 4. The 1st defendant has filed a written statement contending that there are two separate layouts. One is covered of Town Survey No.1196 belonging to Rani Saheba of Daspalla and other Town Survey No.1187 belonging to C.B.Mission. The suit filed by the plaintiff is not maintainable and the Court fee paid is also not correct. The earlier proceedings were admitted. The present suit is not maintainable in view of the findings in the earlier suit. The land was gifted by C.B. Mission due to the services rendered by the 1st defendant and therefore, the 1st defendant pleaded for dismissal of the suit. 2nd defendant filed a memo adopting the written statement of the 1st defendant. 5. On the basis of the above pleadings, the following necessary issues have been framed by the trial Court, for trial: 1) Whether the plaintiff has right title in 342 square yards vacant site in the plaint ‘A’ schedule shown in the red marked portion? 2) Whether the plaintiff is entitled for recovery of possession of the said property? 3) Whether the plaintiff is entitled for consequential permanent injunction? 4) To what relief? 6. On behalf of the plaintiff, PW.1 was examined and marked Exs.A.1 to A.16. On behalf of the defendants, DWs.1 and 2 were examined and marked Exs.B.1 to B.10. 7. After considering the evidence on record, the learned Principal Subordinate Judge at Visakhapatnam, dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the plaintiff is entitled for declaration of title with regard to plaint ‘A’ Schedule property? 2) Whether the plaintiff is entitled for recovery of possession of the same? 3) Whether the plaintiff is entitled for permanent injunction to an extent of 2200 square yards as shown in ‘B’ Schedule? 9. POINTS: Much of the facts in this case are not in dispute and the fact that the plaintiff has purchased the property in Sy.No.1196/35 and part of the land in Sy.No.1187 is not in dispute. Further-more the fact that the defendant is not claiming any rights in the land in Sy.No.1196/35 is also not in dispute and in fact even in the earlier litigation that was stand taken by the defendant and accepted by the Court. Evidently, the present claim of the plaintiff is based on the factum of encroachment of plaint ‘A’ Schedule property to an extent of 342 square yards and the possession and enjoyment of 2200 square yards in plaint ‘B’ Schedule. There are no registered sale deeds in favour of the plaintiff and reliance is placed on Exs.A.1 and A.2. Ex.A.1 is the delivery receipt and Ex.A.2 is the permission to the plaintiff by the Diwan. The plaintiff having claimed purchase of the properties and the extent has not examined the original owner of the property, who sold or executed the documents. The lower Court, therefore, rightly found that Ex.A.1 cannot be taken as a document conferring the title to the property. Most of the claim of the plaintiff is based on the theory of adverse possession. There is no material to show that the encroached portion or actually the part of the land sold and owned by the vendor of the plaintiff. Evidently, Exs.A.1 and A.2 show that there was delivery of only 1390 square yards and boundaries were mentioned. No neighbours were also examined to prove the continuous possession and enjoyment of the property. Even if the question of title is not relevant in the earlier suit, still the question of possession, which has been negatived by the Courts, will certainly bind on the plaintiff in the suit. If independent evidence of title is adduced then the findings in the earlier suit may not operate as res judicata, but however when the documents of title are not produced and the ownership of the property is not established to lay a claim of the title on the basis of adverse possession, the contention of the plaintiff cannot be accepted in view of the concurrent findings of all the Courts in the earlier suit that the plaintiff has failed to prove possession and not entitled for the injunction. Therefore, as rightly found by the lower Court, there is nothing to show that the ‘A’ Schedule property, which is in red mark portion is the property purchased by the plaintiff or that it was part of the land in Sy.No.1187 and that it was encroached by the defendant. In fact, the allegations in the plaint are also vague as to when the encroachment has taken place. Merely because there was an allegation of demolition of the compound wall, it cannot be taken that after the demolition the property of the plaintiff has been encroached. I feel in cases where the title is claimed the absolute burden is over the plaintiff to prove the same and there is neither documentary evidence nor oral evidence and therefore, the lower Court has rightly dismissed the claim so far as A-schedule property is concerned and the finding of the lower Court does not call for any interference. 10. So far as ‘B’ Schedule property is concerned, evidently an injunction was granted in the earlier suit only for an extent of 700 square yards, which was admitted by the defendant. An effort was sought to be made from the allegations in the plaint that there were some observations in the Judgment of the Courts that the plaintiff has been in occupation of more than 700 square yards as admitted by the defendant. So far as this fact is concerned, there is also no proof that the plaintiff has got possession and enjoyment of 2200 square yards as shown in the ‘B’ Schedule property. The plaint clearly goes to show that injunction was subsisting in the earlier suit. So far as other extent is concerned as rightly found by the lower Court, there is no proof of interference. Therefore, the relief of injunction can be confined only to the extent, which was found to be in possession of the plaintiff even in the earlier suit, since the defendant is not making any claim for the land in Sy.No.1196. 11. In the result, the appeal is allowed in part, while confirming the Judgment of the lower Court with regard to the dismissal of the suit so far as it relates to the ‘A’ Schedule property and injunction is granted to the extent of 700 square yards in ‘B’ schedule property as granted in earlier suit. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:15.09.2011 INL