THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL NO.1170 OF 2010 DATED:24-11- 2010. Between 1.Y.Venkatamma and others … Appellants-Defendants And 1.T.Kondamma and two others …Respondents-Plaintiffs THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL NO.1170 OF 2010 JUDGMENT: This appeal is filed against the judgment and decree, dated 23-02- 2004 in A.S.No.24 of 1997 on the file of the V Additional District Judge (FTC), Anantapur, in confirming the judgment and decree passed by the Principal District Munsif, Anantapur, dated 1-12-1996, in O.S.No.232 of 1987, wherein the suit filed by the plaintiffs for declaration, permanent injunction and for possession was decreed. 2. The appellants herein are the defendants and the respondents herein are the plaintiffs in the suit. 3. The averments of the plaint in brief are as follows: The property mentioned in the schedule originally belonged to one Tarugu Nagi Reddy and his bother Targu Venkata Reddy. Later Venkata Reddy died and his share in the property devolved upon his wife Balamma and his son Raja Reddy and they were in possession and enjoyment of the same. Later on 27-02-1961, the plaintiff’s husband, T.Nagi Reddy and Balamma and Raja Reddy entered into registered partition deed whereunder the property mentioned in the schedule was allotted to the share of plaintiff’s husband and he was in possession and enjoyment of the same. Consequent upon the death of Nagi Reddy, the plaintiff became sole owner of the property and nobody else has any interest in the same. The brother of the plaintiff by name V.Nagi Reddy has absolutely nothing to do with the property and he had no right in the same. As he was not having any property, during his life time, he requested the plaintiff to make provision for him. But the plaintiff refused to do so. After Nagi Reddy’s death, the defendants who are his wife, sons and daughters respectively began to request the plaintiff to give them some property, but the plaintiff refused. On account of the same, the defendant has become very much aggrieved and appears to be fabricating certain documents. They have absolutely no right to do so. The Ex Sarpanch of village is instigating the defendants to disturb possession and enjoyment of the plaintiff and with that view, the plaintiff is being harassed and the defendants are openly proclaiming and threatening that they will demolish the house belonging to the plaintiff and trespass upon the open space and make unauthorized constructions. Hence, the suit. 4. The second defendant filed written statement, which was adopted by other defendants. The suit property originally belonged to one Pedda Anjina Reddy of Rudrampet, who sold it to one T.Nagi Reddy by way of registered sale deed. The plaintiff is the wife of Tarugu Nagi Reddy. The said Tarugu Nagi Reddy died and the said suit property devolved on the plaintiff. The said Nagi Reddy’s wife Kondamma sold it to Yerraguntla Nagi Reddy, husband of 1st defendant and father of defendants 2 to 4 and all of them are members of joint family. They are living jointly constituting joint Hindu family owning other properties besides suit property. They have been in possession and enjoyment of the said house site. The said V.Nagi Reddy constructed a house and shed and a hut on the said site measuring about Ac.0.05 cents. The southern portion was purchased by one Sunki Reddy. They have leased out the said house, shed and hut to one Y.Pulla Reddy. Subsequently, Y.Nagi Reddy died and the suit property devolved upon the defendants. The said Nagi Reddy purchased the property from the plaintiff by way of registered sale deed in 1969. Subsequently, he constructed one room and shed and hut on the same site. As Pulla Reddy refused to vacate the premises, a suit was filed against him in O.S.27 of 1985 and got him evicted and took possession of the same through Court on 20-07-1986. The plaintiff has no right, title or possession of the suit property in any manner and the defendants are absolute owners of the suit property having purchased from the plaintiff by way of registered sale deed and subsequently when the said Pulla Reddy, who was a tenant in the said house refused to vacate the building, the defendants recovered their possession through Court. Hence, they pray to dismiss the suit. 5. Basing on the above pleadings, the following issues were settled for trial: 1. Whether the plaintiff sold the suit property in the year 1969 as alleged by the defendants in the written statement? 2.Whether Pulla Reddy was tenant as contended by the second defendant? 3.Whether the plaintiff is entitled for injunction as prayed for? 4.To what relief? The following Additional issues were framed: 1. Whether the defendants have got title by adverse possession? 2. Whether the suit is barred by limitation? 3. Whether the plaintiff is entitled for alternative relief of decree for possession of suit property through Court? 6. On behalf of the plaintiff, P.Ws. 1 and 2 were examined and Exs.A1was marked. On behalf of the defendants, D.Ws. 1 to 3 were examined and Exs.B1 to B3 were marked. 7. After considering the oral and documentary evidence available on record, the trial Court decreed the suit. Challenging the said judgment and decree, defendants preferred an appeal in A.S.No.24 of 1997. The appellate Court after re-appreciation of evidence on record, dismissed the appeal confirming the judgment and decree of the trial Court. Aggrieved thereby, the present Second Appeal is preferred by the defendants. 8. The substantial questions of law raised by the appellants in the grounds of appeal are: a) Whether the Courts below failed to consider the plea of limitation raised by the defendants in the proper perspective (husband of the 1st defendant purchased the property from the plaintiff under a registered sale deed, dated 24-11-1969 under Ex.B1 and the suit for declaration and injunction (later converted into one for possession) was filed in the year 1987 (14-05-1987). b) Whether the Courts below failed to consider the issue of adverse possession in the proper perspective (failed to consider decree in O.S.No.187 of 1991 for possession obtained by the defendants against a tenant and subsequent delivery of possession through court (Court Amin examined as D.W.3). c) Whether the Courts below failed to properly appreciate the fact that the plaintiff has not adduced any acceptable evidence with regard to variation n boundaries. 9. By virtue of amendment to Section 100 CPC, filing of Second appeal is restricted. Unless the party shows that there is a substantial question of law involved, admission of Second Appeal is not automatic or routine. If the findings are not based upon any evidence or inadmissible evidence was taken into consideration or admissible evidence was overlooked, are some of the circumstances for interference by this Court. Suit is based upon declaration of title and recovery of possession. The defence set up by the defendants is that the first plaintiff sold the plaint schedule property to Y.Nagi Reddy under Ex.B1 registered sale deed on 24-11-1969. The said Y. Nagi Reddy is the husband of 1st defendant. The case of the plaintiff is that she got the property by virtue of partition deed, dated 27-02-1961 effecting transfer of properties between Tarugu Nagi Reddy, Balamma and others. Tarugu Nagi Reddy is no other than the husband of the plaintiff. By virtue of Ex.A1, she got right, title and interest over the plaint schedule property. Ex.A1 was not denied or disputed by the defendants. So from the evidence of P.Ws. 1 and 2 coupled with the recitals in Ex.A1, it is clear that Tarugu Nagi Reddy has got a right, title and interest over the property. But the contention of the 1st defendant is that she purchased the property from the husband of the 1st plaintiff under Ex.B1 registered sale deed. So, it must be shown that the schedule of property covered by both Exs.A1 and B1 are one and the same. But the defendants failed to produce any evidence to show that the property purchased under Ex.B1 is none other than by the plaint schedule. Even Ex.B1 is not proved. D.W.1 was not present when Ex.B1 is executed. He does not know the attestors of Ex.B1. The attestor D.W.2 does not know the contents of Ex.B1. D.W.1 does not know whether P.W.1 executed Ex.B1 document. If really husband of D.W.1 purchased the property in the year 1969, during his life he would have paid taxes to Government and after his death, D1 must have paid taxes. No tax receipts were filed. With regard to first substantial question of law is concerned, except taking a bald plea that suit is barred by limitation, there is absolutely no evidence adduced by defendant, as to how the suit is barred by limitation. On the point of second substantial question of law is concerned, no documentary evidence is filed to show that the defendants are continuous uninterrupted possession and enjoyment of plaint schedule property to the knowledge of true owner. The evidence adduced by the defendants does not indicate to arrive at a conclusion that the property claimed by the plaintiff is one and the same with that of the property purchased by the defendants. The boundaries and the measurements of the constructions in the plot purchased by the defendants do not tally with the boundaries of the schedule as shown by the plaintiff. The evidence of the defendants is also not clear as to what kind of construction existing at the time of purchase or after filing of the suit. Therefore, there is no evidence adduced by the defendants to show that the property purchased under Ex.B1 is one and the same as mentioned in plaint schedule. Therefore, both the Courts below after appreciating the evidence on record, rightly decreed the suit and absolutely, there are no grounds to interfere with the same. 10. Accordingly, the Second Appeal is dismissed at the stage of admission. No order as to costs. -------------------- K.C.BHANU, J DATED:24-11- 2010 Hsd