THE HONOURABLE SRI JUSTICE A.GOPAL REDDY SA No.764/2009 JUDGMENT The defendant who are unsuccessful in challenging the judgment and decree passed by the Principal Junior Civil Judge, Amalapuram dt. 5-11-2003 in OS No.213/2001 in AS No.77/2003 before the Senior Civil Judge, Peddapuram filed this second appeal challenging the judgment and decree passed in AS No.77/2003 dt. 22-11-2008. For the sake of convenience, the parties will be referred to as arrayed in the suit. The plaintiff instituted the suit based on the two sale deeds, namely, Ex.A-1 sale deed dt. 19-2-1999 and Ex.A-2 sale deed dt. 3-3-1999, whereunder he purchased Ac.0.03¼ cents (58 sq.yards) each from Chappidi Satyanarayana and Nagabhushanam respectively. . After purchase, the plaintiff removed the two portions kept northern side portion of his house in use by keeping material therein and constructed a building in the remaining site to the south of house. Taking advantage of wrong recitals in the sale deeds, the defendants filed OS No.81/99 on the file of Principal Junior Civil Judge, Amalapuram for permanent injunction, and obtained temporary injunction. Against which, the plaintiff unsuccessfully carried the matter in appeal in CMA. During the pendency of the appeal, the plaintiff subsequently obtained rectification deeds covered under Exs.A-5 and A-6 from the vendors on 23-1-2001 describing correct boundaries. Therefore, he was forced to file the above suits for declaration of his title over the plaint schedule property and for possession of the same. The defendants 1 and 5 filed a written statement, which was adopted by defendants 3 and 4. In the written statement filed by defendants 1 and 5, it is contended that the suit schedule property is not correctly shown and the boundaries are incorrect. Bokka Subbanna and Suranna who are the sons of one Bokka Reddy were in possession and enjoyment of Ac.0.06 ½ cents together with the southern half portion of thatched house. The extent mentioned in the sale deeds is incorrect. Subbanna was in possession and enjoyment of southern room, whereas Suranna was in possession and enjoyment of western vasara adjoining to the southern room. The middle chavadi used to be in joint possession and enjoyment of Suranna and Subbanna and their sisters. The southern half portion was sold away to one Mattaparthi Gavaramma. The extent in which the southern portion used to exist might be nearly Ac.0.04 cents and not more than that. The southern house portion consisting of one room and adjoining western vasara at the middle chavadi was never measured though Vasamsetti Manikyam, mother of D-1 was having a right in the northern half portion of middle chavadi and the appurtenant site up to the western boundaries. In the registered settlement deed dt. 29-11-1971 it is mentioned one room and vasara in the thatched house bearing D.No.150 besides appurtenant site. The rectification deeds obtained by the plaintiff are not binding on the defendants. Without notice to the defendants, the plaintiff given southern side portion and demolished the southern house wall of the northern house portion belongs to the defendants 1 and 2. Therefore, they filed OS No.81/99 and obtained permanent injunction. On the basis of the above pleadings, the trial court framed the following issues for trial: 1. Whether the plaintiff is entitled for declaration , title, possession in respect of plaint schedule property ie., ABGH shown in the plaint plan by ejecting defendant therefrom and put possession of the same to the plaintiff or not? 2. Whether the plaintiff is entitled for accounting of future profits on the plaint schedule property from the date of suit till the date of delivery of possession or not? 3. Whether the rectification deeds dt. 23-1-2000 in respect of two sale deeds dt. 19-2-1999 and 3-3-1999 rectifying the mistaken description of properties are true, valid and binding on the defendant or not? 4. Whether the extent of Ac.0.06 ½ cents mentioned in the sale deed dt. 1- 8-1967, 7-3-77 are the extent mentioned in the sale deeds dt. 19-2-99 and 3-3-99 are true or not? 5. Whether the settlement deed dt. 29-11-1971 was executed in favour of defendants 1 and 2 in view of the debt covered by mortgage deed dt. 14- 12-1966 is true and valid and what is the extent covered by the said settlement deed? 6. Whether the suit is barred by limitation? 7. Whether the suit is bared by the principles of res judicata or not? 8. To what relief? On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A- 8 were marked. On behalf of the defendants D.Ws.1 to 4 were examined and Exs.B-1 toB-19 were marked. The trail court after considering the oral and documentary evidence held that the extent mentioned in Exs.A-1-sale deed dt., 19-2-1999 under which the plaintiff purchased Ac.0-03¼ from Chappidi Satyanarayana, and A-2-sale deed dt. 3-3-1999 under which the plaintiff purchased Ac.0-03 ¼ cents from Chappidi Nagabhusanam along with rectification deeds covered under Exs.A-5 and 6 tallies with Ex.A-4 sale deed dt. 1-8-1967 under which Bokka Subbanna and others sold Ac.0.06½ cents to Gavaramma, who in turn sold the same to Chappidi Ammayamma alias Pydamma and her sons Satyaranayana and Nagabhushanam (vendors of Exs.A-1 and A-2) under Ex.A-3 sale deed dt. 7-3-1977. An advocate- commissioner was appointed in IA No.615/2002 at the instance of the plaintiff. The Commissioner with the assistance of Suveyor after measuring the suit schedule property with respect to the sale deeds and settlement deed found that D-1 is in possession of Ac.0-05 cents instead of Ac.0-03 cents as per Ex.B-8. Ever since Ex.A-4 sale deed dt. 1-8-1967 the plaintiff and his vendors were in possession and enjoyment of the suits schedule property to an extent of Ac.0.06½ cents and accordingly decreed the suit. On appeal being filed, the lower appellate court, on appreciating the evidence available on record, confirmed the findings of the trial court. The concurrent findings recorded by the courts below are based on appreciation of evidence and cogent reasons were assigned for coming to such conclusion, which do not give rise to any question of law much less substantial question of law for admission of the second appeal. In view of the concurrent findings, the contention of the learned counsel for the appellants-defendants that the plaintiff without establishing his title cannot entitle to a decree on the weakness of the defendants’ evidence or basing upon the commissioner’s report cannot be accepted for the reason, the plaintiff established by way documentary evidence that the vendors’ of the plaintiff had title to Ac.0- 06½ cents and D-1 is in possession of Ac.0-05 cents instead of Ac.0-03 cents by way of Commissioner’s report since both the parties are claiming title over the suit schedule property from the common ancestors basing upon the sale deeds and settlement deed. The second appeal fails and is accordingly dismissed. ______________ A.GOPAL REDDY,J Dt.28-8-2009 kmr