THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.780 OF 2001 JUDGMENT: The second defendant in O.S.No.58 of 1990 on the file of the court of Senior Civil Judge, Mahabubnagar is the appellant herein. The suit was one filed for declaration of title and recovery of possession of the properties. The allegations in the plaint goes to show that the plaintiff is the owner of the suit schedule properties comprising Ac.0.26 guntas in Sy.No.251/B and Ac.0.02 guntas in Sy.No.217/B and Ac.1.17 guntas in Sy.No.217/C, total extent of Ac.2.05 guntas at Bedapally village of Jadcherla Mandal. The plaintiff has purchased the property under a registered sale deed dated 09-11-1966 from one Chandraiah son of Buchanna and Pentaiah. Further, it is averred in paras 3, 4 and 6 of the plaint as under:- “3. On the northern side of the aforesaid lands, an open and vacant site of the defendant No.1 exits. At the back of the plaintiff and without his knowledge a part of such vacant site of about 4 acres is alleged to have been purchased for the purpose of the construction of the ware- house by the defendant No.2 from defendant No.1. It is an act done with the knowledge that it is not authorised by the statute and beyond the pale of Sec.144 of Gram Panchayat Act. 4. In the light of the demarcation of the land by the Mandal Surveyor on 5-5-1990, the event of the sale infavour of the defendant No.2 by the defendant No.1 amounts a denial of the right of the ownership of the plaintiff over the aforesaid lands. 6. On 10-05-1990 the second defendant without any manner of right, trespassed into the land of the plaintiff, pitched R.C.C. columns by removing the boundary-stones of the plaintiff. The defendant No.2 had also pitched a board in the name of the ware-house in the said area.” The defendants also obstructed the plaintiff from cultivating the land. A legal notice was given but no reply was given. The encroachment of Ac.0.26 guntas of land which was shown in the red colour of the map was subsequent to the suit and therefore recovery of possession was also claimed with regard to that extent. The second defendant has filed a written statement denying the allegations in the plaint. According to the defendant, the land in Sy.No.251/1 to an extent of Ac.4.00 towards the north of the suit lands is owned by the second defendant having purchased it from the first defendant and possession was given. There were no boundary stones fixed by the plaintiff for his lands. It is incorrect to say that the defendant has made constructions without any manner of right. Further, it is averred in para.8 of the written statement as under:- “The location of the area of the suit lands shown in the sketch in red colour by the plaintiff is wrong, in correct. The area shown as Sy.No.251/B in the sketch is the area of Sy.No.217/C and the area of Sy.No.217/C is the area between the lands Sy.No.218/A and 217/B of the said sketch. The Tonch (the map) of the suit lands granted by the competent Land Records is not submitted by the plaintiff. The area shown as Sy.No.251/B is part and parcel of the land Sy.No.251/1 (251/A) which is the owned and possessed land of the defendant No.2”. Therefore, the suit is liable to be dismissed. An additional written statement was also filed disputing the encroachment of Ac.0.26 guntas of land. The date of encroachment is also not specifically pleaded. The suit is therefore liable to be dismissed. On the basis of the above pleadings, the following issues and additional issues have been framed for trial. 1. Whether the plaintiff is entitled for declaration of title to the suit lands? 2. Whether the plaintiff is entitled for injunction as prayed for? 3. Whether the plaintiff is not concerned with the land Sy.No.251/1 as contended by defendants? 4. Whether the A.P.Ware Housing Corporation, Hyderabad is absolute owner, title holder and possessor of Sy.Nos.251/1 and 251/A as contended by defendants is true? 5. Whether the location of the area of the suit land shown in the sketch in red colour is wrong and incorrect? 6. Whether an area shown Sy.Nos.251/B is part and parcel of the land Sy.No.251/1, 251/A, as contended by defendants? 7. Whether second defendant possessed the land in Sy.No.251/1, 251/A as contended by defendants? 8. Whether the suit map is incorrect as contended by defendants? 9. To what relief? Additional Issues:- 1. Whether the plaintiff was in possession of 0.26 guntas portion shown in red colour in the map on the date of suit? 2. Whether the plaintiff is entitled to recovery of possession of 0.26 guntas shown in red colour as prayed for? 3. To what relief? On behalf of the plaintiff PWs.1 and 2 were examined and marked Exs.A-1 to A-9. On behalf of the defendants DW.1 was examined and marked Ex.B-1. The Commissioner’s report and plan were marked as Exs.C-1 to C-5. After considering the material on record, the learned Senior Civil Judge has granted a decree for the plaintiff declaring his rights and also recovery of possession of Ac.0.26 guntas as claimed. Aggrieved by the said judgment, the present appeal is filed. Now the points that arise for consideration are:- 1. Whether the plaintiff is entitled for the disputed Ac.0.26 guntas of land and is entitled for declaration and recovery of possession? 2. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? 3. To what relief? POINTS:- So far as the claim of the plaintiff with regard to land in Sy.No.217/B and 217/C is concerned, there is no dispute. The dispute is only with regard to item No.1 which is Ac.0.26 guntas of land in Sy.No.251/B which abuts the land of the second defendant which is said to have been purchased by the second defendant from the first defendant. The land of the second defendant is said to be at north of this land. Evidently, in a suit for declaration of title and possession to the property, it is the burden of the plaintiff to show the title and interest in the property. According to the case of the second defendant, it has purchased an extent of Ac.4.00 of land from the first defendant and an extent of Ac.0.26 guntas of land was left on the southern side abutting the compound wall of Swadesh Oil Mill for parking of the vehicles on its northern side. According to the case of the defendants, there was no encroachment of the land of the plaintiff on the southern side. It is the contention of the defendants since Ac.0.26 guntas of land was left on the northern side by the defendants, the defendants have encroached the land of the plaintiffs and it is only an apprehension and not true. In fact the defendant No.2/appellant is in possession of only Ac.4.00 of land which was purchased. Therefore, in view of the above circumstances, the fact to be determined by any court is as to what is the extent of property in possession of the defendants. Whether it exceeds Ac.4.00 purchased and as to whether it is in a different survey number than the land belonging to the plaintiff. Evidently, Survey No.251 is said to have been bifurcated. The land of the plaintiff is said to be in Sy.No.251/B whereas the defendants’ claim that their land is in Sy.No.251/A but, however, none of the parties have examined the revenue officials to show the actual location of the land. When a possession was delivered to the defendants, there will be a record maintained by the revenue authorities. The lower court has very much relied upon the report of the Commissioner. The Commissioner has not measured the site in possession of the defendants. To come to a conclusion whether it was Ac.4.00 of land or any excess land is there, so also, though the Revenue Inspector and Surveyor are said to be present, they were also not examined by the court. The mere preparation of the records by the Commissioner cannot be taken into consideration without the competent persons or the revenue officials. The panchanama Ex.C-5 has no relevancy. The authenticity of Exs.C-3 and C-4 which were prepared by the private persons without summoning the original records from the Revenue has also no relevancy. The plan Ex.C-2 also cannot be taken into consideration drawn by the Commissioner showing the sub-divided lands 251/A and 251/B. The Commissioner’s report-Ex.C-1 which is relied on by the learned Senior Civil Judge even without examining the Commissioner cannot be also taken as final when better revenue records have to be produced. Further more, the appellant has also asked for appointment of another Commissioner to inspect the premises, but, it was not accepted. From the Commissioner’s report, the title to the property cannot be determined. The report also does not show that he has taken the revenue records from the concerned officials. Added to that in a suit for declaration of title and recovery of possession, it is for the plaintiff to show the rights. For the reasons best known to the plaintiff, the plaintiff did not go into box and his vendor was also not examined. A General Power of Attorney is said to have been given to PW.1 who was temporarily staying there. His knowledge about the rights in the property cannot be conclusive. So also the evidence of PW.2 about the constructions undertaken cannot also be of no avail since it is an admitted fact that the appellant has made constructions but the claim is that they were made in their own site. Therefore, in view of the above circumstances, the best person to speak about the title to the property is the owner and the best person to speak about the location of the property and the identity of the property are revenue authorities who have got records and the evidence on record is not sufficient to support the judgment of the lower court as it suffers from serious infirmities. Therefore, I feel that the parties can be given an opportunity to the rival contentions. Accordingly the judgment and decree of the lower court is liable to be set aside and the matter is remanded to the lower court for examination of the plaintiff and if necessary his vendor and producing the further evidence by both parties to establish their title and interest in the property. The points are accordingly answered. In the result, the appeal suit is allowed by setting aside the judgment and decree in O.S.No.58 of 1990 on the file of the Court of Senior Civil Judge, Mahabubnagar and the matter is remanded to the lower court and the lower court is directed to dispose with in a period of six (6) months from the date of receipt of a copy of the judgment, after giving an opportunity to both parties. Each party do bear their own costs. _______________________ N.R.L.NAGESWARA RAO,J 20-06-2011 TSNR