THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 2563 of 2001 JUDGMENT: 1. This Civil Miscellaneous Appeal is directed against the Judgment dated 31.08.2001 in Appeal Suit No.2 of 1999 on the file of the Principal District Judge, Kadapa, whereunder and whereby the judgment and decree dated 10.11.1998 in O.S. No. 73 of 1991 on the file of the Senior Civil Judge, Kadapa, were set aside, and the matter was remanded to the trial Court with a direction to appoint a qualified surveyor for taking measurements of the sites of choultry of the appellant therein (first respondent herein), the first respondent therein(first appellant herein) and poramboke site, and decide the dispute as per the circumstances of the case, in accordance with law. 2. The first appellant herein is the first defendant; the first respondent herein is the plaintiff; and the second respondent herein is the second defendant, in the suit. 3. For better appreciation of facts, the parties are hereinafter referred to as they are arrayed in the trial Court. 4. The plaintiff filed the suit for declaration of title over site shown as ABCD in plaint plan and direction to the defendant no.1 to deliver vacant possession of the said site by demolishing the building constructed by him unauthorisedly stating that the site shown as JICDGHFE belonged to private trust, managed and maintained by its hereditary trustee. There was a big choultry in the above space, which was giving shelter to several poor people. Management of the choultry was being supervised by Hindu Religious Endowment Department. The Charities was paying contribution to the Endowments Department. The original owners of the property created a private trust on 26.10.1928 under a registered document. It is clearly mentioned therein that the executant during her life time was to act as Trustee and manage the same and the said Trustee have got a right to lease out any properties to anybody and the income from the lease was to be utilized for the management of the Trust properly. The suit property is a private trust as per the abovesaid document. While so, the Hereditary Trustee filed a Writ Petition No.14841 of 1986, when the choultry was leased out to some persons inspite of order from the Commissioner of Endowment asking the Hereditary Trustee to take possession. At the time of disposal of the Writ Petition, the choultry was demolished, and a vacant site was prepared for construction of shopping complex. After disposal of the Writ Petition, the Endowments Department delivered possession of the vacant site, but not the choultry originally existed. Thus, the Hereditary Trustee took possession on 14.4.1990 of the vacant site shown as JICDHGFE in the plaint plan, from the department. The first defendant, taking advantage of the vacant site adjacent to the house on the northern side, tried to encroach into the site. On that, the Hereditary Trustee made a representation to the second defendant and also to the Municipality to see that the first defendant makes no construction. The first defendant slowly closed the area to be encroached, by polythene bags cloth. When the plaintiff asked to remove it, he stated that the inmates are ‘ghosha’ ladies and that he would remove it shortly. A police complaint was also given and the first defendant undertook to remove the closures. But, about four days prior to filing of the suit, the first defendant trenched all along AD and AB site in order to construct a compound wall along the closed area. The area ABCD is a part of JICDHGFE land and the defendants have no right over ABCD area. Inspite of demands, the first defendant did not remove it nor closed the trenches, and the second defendant did not take any action against him. Hence, the suit. 5. The first defendant filed written statement stating that there was no vacant site belonging to the plaintiff choultry in the south. The compound wall abutting to the choultry in the south belonged exclusively to the defendant. The choultry had small vacant site in the north. The choultry was demolished and only vacant site was remaining. There was a small strip of poromboke land in between the choultry and house of the first defendant. The defendant was having a ‘Pappula Batti’ in the vacant site, which formed part of D.No.5/142. There was black country tiled roofing over the site in which the defendant is living and it belonged exclusively to him, and there was no vacant site belonging to the plaintiff to be encroached upon by this defendant. The defendant got building approved and then only removed haveli and heightened the wall. The house in the east and west also belonged to this defendant. The entire site to the north of the choultry was in absolute possession and enjoyment of this defendant and his predecessors-in-title, continuously and uninterruptedly. By virtue of long, open, uninterrupted and continuous possession and enjoyment of the site, this defendant perfected his title by adverse possession. The suit is bad for non-joinder of necessary parties i.e. Government of Andhra Pradesh. Hence, it is prayed to dismiss the suit. 6. The second defendant filed written statement contending that the first defendant had no title to the schedule property and the same is vested with the charitable institutions of the plaintiff, and the first defendant is liable to remove the encroachments. 7. Basing on the above pleadings, the trial Court framed the following issues for trial. 1) Whether the plaintiff is entitled for declaration of title over ABCD site and for possession of the said site ? 2) whether the first defendant has perfected title by adverse possession ? 3) whether there is no cause of action for the suit ? 4) whether the suit is bad for non-joinder of necessary parties i.e. Government of Andhra Pradesh ? 5) to what relief ? 8. During trial, P.Ws. 1 and 2 were examined and Exs.A1 to A5 were got marked, on behalf of the plaintiff. On behalf of the defendants, D.W.1 was examined and Exs.B1 to B13 were got marked. 9. The trial Court, upon consideration of the evidence on record, dismissed the suit. On appeal, the first appellate court, by the impugned judgment, allowed the appeal setting aside the judgment and decree of the trial court and remanded the matter to the trial Court with the aforesaid direction. Challenging the same, the present Civil Miscellaneous Appeal is preferred by the appellant/defendant no.1. 10. Now, the point for consideration is whether the judgment and decree passed by the first appellate court are correct, legal and proper? 11. During pendency of this appeal, the appellant/first defendant, and the Hereditary Trustee of the first respondent/plaintiff, have died. Legal representatives of the appellant were brought on record as appellants 2 to 4, as per the court order dated 17.11.2009 in C.M.P. No.1039 of 2006, and legal representatives of the Hereditary Trustee of the first respondent were brought on record as respondents 3 and 4, as per the court order dated 24.8.2009 in C.M.P. No.1886 of 2005. 12. The learned counsel for the appellants contended that, what is the site encroached by the appellants has not been stated; that the plaintiff is not sure about the encroachment and its extent; that, the plaintiff has not taken any steps to get the disputed site in question measured by an Advocate Commissioner; that, the trial Court rightly dismissed the suit as there was no identification of the property; that, the first appellate court ought not to have remanded the matter, and hence, he prays to set aside the judgment of the first appellate court. 13. On the other hand, the learned counsel for the respondents contended that, under Ex.B1, the plaintiff is having the land to an extent of 14 ankanams, which is not in dispute; that, if a proper qualified surveyor is appointed to measure the land in accordance with the documents of the respective parties, the extent of the land occupied by the first defendant would be known; that the identity of the property can also be established when a qualified surveyor is appointed, and precisely, for that reason, the first appellate court rightly remanded the matter to the trial court, and that order needs no interference by this Court. Hence, he prays to dismiss the C.M.A. 14. It is not in dispute that, in the trial court, an Advocate Commissioner was appointed and he submitted his report. But, the grievance of the plaintiff is that the Advocate Commissioner has not verified measurements given with reference to Exs.B1 and B2, and therefore, the Commissioner has not properly measured the land in accordance with the documents filed by both the parties and also the objections of the respective parties. The fact remains that the first respondent herein is having 14 ankanams of land as per Ex.B1-trust deed. Ex.B1-trust deed is not in dispute. By virtue of Ex.B1-trust deed, the first respondent herein (plaintiff) is the absolute owner and possessor of the building and vacant site. It is also not in dispute that the Endowments Department demolished old structures in the choultry, and subsequently, after the Writ Petition No.14841 of 1986 was disposed of by this Court, the vacant site was delivered for construction of the shopping complex. Thereafter, the Hereditary Trustee took possession of the same from the department. It is the case of the plaintiff that as the disputed site is in vacant, the first defendant alleged to have encroached into the land. The trial Court came to conclusion that identity of the property is not established and accordingly, dismissed the suit. The first appellate court came to the conclusion that the Advocate Commissioner has not measured the site in accordance with the documents, and therefore directed the trial Court to appoint a qualified surveyor to take down measurements of the sites of the plaintiff and the first defendant, and the poromboke site so that the extent of site of the trust would be known. 15. The dispute of this nature could have been sorted out if a qualified surveyor is appointed. The case of the plaintiff is that the first respondent, without any right of whatsoever, encroached the trust property. That has to be decided after a qualified surveyor is appointed to note down the measurements of the site in dispute which was in possession of the plaintiff as well as the first defendant, and also the poromboke site available by the side of the disputed site. Therefore, upon proper appreciation of the evidence on record, the first appellate court rightly remanded the matter with the direction to the trial Court to appoint a qualified survey so as to identify the property. The findings of the first appellate court are not shown to be perverse or contrary to the evidence on record. That order does not suffer from any infirmities so as to call for interference by this Court. 16. The Civil Miscellaneous Appeal is devoid of merit and is, accordingly, dismissed. No costs. --------------------- (K.C.Bhanu, J.) 31.05.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 2563 of 2001 31.05.2010 THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 2563 of 2001 31.05.2010 Between: Shaikh Madar Sab, s/o. Shaik Nathar Sab (died) By LRs & others. …Appellants And Yadalla Nagamma Charities …Respondent