IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTH DAY OF APRIL TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.575 of 1991 BETWEEN Kandimalla Munaiah (died) per LRs. …APPELLANTS AND Bathala Ramaiah and others. …RESPONDENTS Counsel for the Appellants: MR. T.S. ANAND Counsel for the Respondents: MR. K. PARVATHESAM MR. S.V. SUNDER RAJU MRS. P. BALA RANI The Court made the following: - JUDGMENT: This appeal is by the plaintiff, who had filed a suit O.S.No.459 of 1985 for declaration of title and permanent injunction with respect to the site admeasuring Ac.0.05 cents described as under: SCHEDULE Site situated in Gramanattam in Chemmumeahpet. Extent Ac.0.05 cents bounded by the East – by rastha; South: Kottam of T. Ranganayakulu; West – Terraced house of B. Subbrayudu; North: House of P. Subbaramaiah. (40 links East-West; 120 links South- North) 2. The said suit was decreed by the trial Court but the said decree, on appeal being A.S.No.31 of 1988, was reversed by the lower appellate Court. Hence, this second appeal. 3. While admitting the second appeal on 22.11.1991, this Court formulated the substantial questions of law raised at Ground No.12 of the memorandum of grounds of appeal, as under: 1. Whether the lower appellate Court is justified in interfering with a finding of the trial Court which is based on proper appreciation of oral evidence? 2. Whether the finding of the appellate Court based on wrong interpretation of the boundary recitals in Ex.A-6 can be sustained? 3. Whether the judgment of the appellate court is vitiated for the reason that it’s reasoning is unsound and perverse? 4. Heard the learned counsel on either side. 5. Mr. T.S. Anand, learned counsel for the appellants, contends that the lower appellate Court has erroneously reversed the well considered judgment of the trial Court without appreciating the oral and documentary evidence produced by the appellant/plaintiff. He submits that all the witnesses, examined by the plaintiff in support of his case, have categorically established that the plaintiff is in possession of the suit site and that the suit site is recognized as that of the plaintiff even by the third parties, as is evident from Ex.A6 sale deed of the neighbour. He also submits that the tax receipts – Exs.A1 to A5 as well as Exs.A8 to A24 clearly establish that the plaintiff has been paying the taxes also for the Kottam existing on the suit site. 6. After examining the judgments of both the Courts below, it is evident that the lower appellate Court has not accepted the tax receipts on the ground that no one is examined in proof of the said tax receipts and secondly, Exs.A1 to A5 relate to House No.37 for the years 1963-1966 whereas Exs.A8 to A24 relate to House No.78 for the period 1963-1965. Both the said tax receipts, therefore, relate to different houses. So far as oral evidence of P.Ws.1 to 4 is concerned, the lower appellate Court has considered each of the said depositions and has come to the conclusion that the plaintiff has failed to establish title or possession. 7. It is evident from the findings of both the Courts below that the plaintiff’s suit for declaration of title is not supported by any document of title in his favour so far as suit schedule property is concerned. The only documents relied upon by the plaintiff are the tax receipts, referred to above and sale deed of a neighbour – Ex.A6. It is well settled that tax receipts by themselves are not conclusive and a relief of declaration of title cannot be based only on those documents. Secondly, the third party’s sale deed and the boundaries mentioned therein cannot be said to prove the title of such neighbour shown as per the boundaries therein. If we exclude the tax receipts and Ex.A6 sale deed, except the oral evidence of P.Ws.1 to 4 there is no material produced by the plaintiff to establish his claim for declaration of title. The trial Court, obviously, did not appreciate this and the finding of the trial Court was rightly corrected by the lower appellate Court and it was rightly held that the plaintiff is not entitled for declaration. I am unable to see any perversity in the reasoning of the lower appellate Court. The substantial questions of law 1 to 3, therefore, deserve to be answered against the appellants. 8. Learned counsel for the appellants contended that to the extent of relief of injunction in view of evidence of P.Ws.1 to 4, there is no reason why that part of the decree was interfered with by the lower appellate Court. 9. I am unable to appreciate the aforesaid submission also in view of the fact that there is no independent finding of the trial Court upholding the possession of the plaintiff. On the contrary, the trial Court has proceeded to decree the suit on the ground that the defendants have filed written statement after six months and that they have failed to establish their case. It is trite that in a plaintiff’s suit for declaration and consequential injunction, the entire burden is that of the plaintiff himself and weakness of the defendant is of no consequence. The trial Court, therefore, was not justified in decreeing the suit coupled with the fact that there is no finding of the trial Court with respect to the possession of the plaintiff over the suit site. The lower appellate Court, therefore, has justifiably reversed the decree of the trial Court and apart from the main relief of declaration; the plaintiff is not entitled to the relief of injunction as well. 10. Learned counsel for the appellants has relied upon the observation of the lower appellate Court in para 19 of it’s judgment wherein the lower appellate Court was of the view that the suit site appears to be a joint property of the plaintiff and the defendant and granted liberty to the plaintiff to file a fresh suit for partition claiming his half share as against the defendant. Learned counsel submits that the respondents have not filed any appeal against the said observation of the lower appellate Court and as such, in the appeal filed by the plaintiff, such observation may not be disturbed. 11. I find some force in the aforesaid claim and therefore, while dismissing this appeal, the liberty granted to the appellants/plaintiffs by the lower appellate Court can be availed by the appellants, if they are so advised. Subject to the liberty, as above, the second appeal is dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J April 7, 2011 DSK