THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1411 of 2010 Date:31st December, 2010 Between: 1. K.AmbajiRao (died) per L.Rs. & Ors. …Appellants/Plaintiffs and G.Kurumurthy …Respondent/Defendant *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1411 of 2010 JUDGMENT: This Second Appeal is directed against the judgment and decree, dated 20.08.2010, passed in A.S.No.36 of 2007 on the file of the Family Court-cum-Additional District Court, Mahabubnagar, whereby and whereunder the learned Additional District Judge dismissed the appeal, confirming the judgment and decree, dated 05.02.2007, passed in O.S.No.17 of 2002 on the file of the Senior Civil Judge, Narayanpet. 2. The facts of the case, in a nutshell, leading to filing of this Second Appeal by the appellants/plaintiffs, are: a) Initially, O.S.No.17 of 2002 on the file of Senior Civil Jude, Narayanpet, was filed by K.Ambaji Rao seeking for declaration of title in respect of the suit schedule property and also for mandatory injunction for removal of structures raised by the defendant. b) The plaint averments in brief are: The suit schedule property admeasuring 134 sq. yards is out of the total extent of Ac.1.80 cents in Survey No.80 of Kamath Pulimamidi village of Makthal Mandal. PWD Road runs through the land bearing Survey No.80. He constructed a residential house during 1945 on the north of the said road. He retained 134 sq. yards on the south of the road. He also retained part of the land in Survey No.80 on the south of the road. He came to know that defendant purchased 300 sq. yards of site in Survey No.79 under a registered sale deed, dated 10.11.2000 from one Ravi Kumar. According to him, the defendant encroached 134 sq. yards of him in Survey No.80. Therefore, he filed the suit for declaration of title and for mandatory injunction in respect of 134 sq. yards of land in Survey No.80. c) The defendant filed written statement contending that he is not in occupation of any part of the land in Survey No.80. He constructed three shops over an extent of 300 sq. yards in Survey No.79. d) The trial Court framed the following issues for trial: 1) Whether the plaintiff is owner of the suit land in Sy.No.80 of Makthal? 2) Whether the suit land (i.e., 134 sq. yds.) forms part of Sy.No.80 or Sy.No.79? 3) Whether the plaintiff is entitled to be declared as the owner of the suit land? 4) Whether the plaintiff is entitled for the mandatory injunction in respect of the suit land? 5) Whether the plaintiff is entitled for recovery of possession of the suit land? 6) Whether the plaintiff is entitled for permanent injunction as prayed for? 7) Whether the suit is within limitation? 8) Whether the suit is maintainable in law? 9) To what relief? The sole plaintiff died pending disposal of the suit and his Legal Representatives came on record as plaintiffs 2 to 5 and consequently, the issues came to be re-settled as follows: 1) Whether the plaintiffs are the owners of the suit land in Sy.No.80 of Makthal? 2) Whether the suit land (i.e. 134 sq. yds.) forms part of Sy.No.80 or Sy.No.79? 3) Whether the plaintiffs are entitled to be declared as the owners of the suit land? 4) Whether the plaintiffs are entitled for the mandatory injunction in respect of the suit land? 5) Whether the plaintiffs are entitled for recovery of possession of the suit land? 6) Whether the plaintiffs are entitled for permanent injunction as prayed for? 7) Whether the suit is within limitation? 8) Whether the suit is maintainable in law? 9) To what relief? e) On behalf of the plaintiffs, one witness was examined as PW.1 and 8 documents were marked as Exs.A1 to A8. On behalf of the defendant, two witnesses were examined as DWs.1 and 2 and 5 documents were marked as Exs.B1 to B5. f) The trial Court, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the plaintiffs failed to prove that the suit schedule property forms part and parcel of the Survey No.80 and thereby proceeded to dismiss the suit, by judgment dated 05.02.2007. The plaintiffs filed A.S.No.36 of 2007 on the file of the Family Court-cum- Additional District Court, Mahabubnagar, assailing the judgment and decree, dated 05.02.2007, passed in O.S.No.17 of 2002. g) The learned Additional District Judge, on re-appreciation of the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the appellants/plaintiffs failed to establish that the site admeasuring 134 sq. yards forms part and parcel of the Survey No.80 and thereby proceeded to dismiss the appeal, by judgment, dated 20.08.2010. Hence, this Second Appeal. 3. Heard learned counsel appearing for the appellants/plaintiffs and perused the judgment of the trial Court as well as the judgment of the lower appellate Court. 4. Learned counsel appearing for the appellants/plaintiffs submits that the trial Court as well as the lower appellate Court have not considered the evidence brought on record in right perspective, more particularly, Ex.A1 certified copy of the Tounch map, dated 05.09.2002. Had Ex.A1 had been considered in right perspective, the suit of the plaintiffs would have been decreed by the trial Court and so also by the lower appellate Court. 5. I have gone through the judgment of the trial Court as well as the judgment of the lower appellate Court. The appellants/plaintiffs claim that the deceased-1st plaintiff retained 134 sq. yards in Survey No.80 and that retained land is to the south of the road which runs east-west. The only piece of evidence the plaintiffs placed on record is Ex.A1 certified copy of Tounch Map, dated 05.09.2002, copy of which is made available at page No.70 of the material papers. Nothing can be made out from it that the appellants/plaintiffs retained any part of the land to the south of the road, which runs east west. 2nd plaintiff while being examined as PW.1 states that he is not aware of the total extent of the land affected by the road and vacant site to the north of his house. For better appreciation, I may refer the relevant portion of the evidence of PW.1 in his own words, which reads as hereunder: “The total extent of land covered by Sy.No.80 is Ac.1.30 gts. I do not know the extent covered by our house in Sy.No.80. I cannot say the extent of our land affected by the laying of road through Sy.No.80. There is a vacant site on a North of our house. The road is on the South of our house. On the East of our house there is a vacant site belong to us. The outskirts of Makthal is on the Western side of our house. I do not know the extent of our vacant site towards East of our house. I also do not know the extent of the Northern side vacant site. I do not know whether our father late Ambaji Rao filed O.S.No.71/04 on the file of the learned Junior Civil Judge, Narayanpet against Nagalaxmi and others.” The appellants/plaintiffs failed to establish that 134 sq. yards of site forms part and parcel of the Survey No.80. The trial Court considered the material brought on record in right perspective and proceeded to dismiss the suit. The lower appellate Court re-appreciated the evidence brought on record and did not find any valid ground to interfere with the findings recorded by the trial Court and thereby proceeded to dismiss the appeal. The material brought on record indicates that the appellants/plaintiffs failed to establish that 134 sq. yards of site i.e. suit schedule property forms part and parcel of the Survey No.80, in which case, the findings recorded by the trial Court as confirmed by the lower appellate Court do not warrant interference of this Court. There is no substantial question of law involved in the appeal warranting admission. 6. Accordingly, the Second Appeal is dismissed at the admission stage. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:31st December, 2010. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1411 of 2010 Date:31st December, 2010