HON’BLE SRI JUSTICE A.GOPAL REDDY S.A.Nos.1244 and 1245 of 2010 DT. 19-11-2010 SA No.1244/2010: 1. Gogam Veeraiah and others. …Appellants V. Akkineni Prasad ..Respondent The Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY S.A.Nos.1244 and 1245 of 2010 COMMON JUDGMENT: The unsuccessful plaintiffs in OS No.131/1995 and the defendants in OS No.33/1998 in the trial Court as well as the lower appellate Court have filed these Second Appeals against the judgments and decrees dated 23-6-2009 passed in AS Nos. 22/2004 and 23/2004 on the file of Senior Civil Judge, Nuzvid respectively, whereunder learned Judge dismissed the appeals confirming the common judgment and decrees dt. 31-1-2004 passed in OS Nos.131/1995 and 33/1998 on the file of Junior Civil Judge, Nuzvid, Krishna District, respectively decreeing OS No.33/1998 filed by the respondent/plaintiff in SA No.1245/2010 herein partly and dismissing OS No.131/1995 filed by the appellants/plaintiffs in SA No.1244/2009. The respondent in SA No.1245/2010 is the plaintiff in OS No.33/1998. He filed the suit (OS No.33/1998) against the appellants/defendants herein ie., in SA No.1245/2010 for declaration of title and recovery of possession of suit schedule property from the defendants; for mesne profits from the defendants for their illegal enjoyment of the suit schedule property and for costs. Before filing OS No.33/98, the appellants in SA No.1244/2010 filed OS No.131/1995 against the plaintiff in OS No.33/1998 for permanent injunction restraining the defendant, his men, and agents from ever interfering with the peaceful possession and enjoyment of the land by the plaintiffs and for costs. The case of the plaintiffs in OS No.131/1995 is that they are brothers and they purchased one acre each from one Gutha Ramkotaiah of Mallavalli Villlage on 8-5-1992 for a consideration of Rs.15,000/- each and obtained registered sale deeds. Since then, they are enjoying the property without any interruption. On the western side of the suit schedule land, there is a small chilla kampa along the boarder between the plaintiffs’ land and the land of the defendant as the chilla kampa was being grown and maintained by the defendant. As the defendant is openly proclaiming that he has got some more land from Chilla Kampa boundary towards the suit schedule land to the extent of three yards all along the chilla kampa and he will occupy the same, the above suit came to be filed for permanent injunction against the defendant in OS No.131/1995. The defendant in OS No.131/1995 filed written statement raising same pleadings as pleaded in the plaint in OS No.33/1998. The defendant in OS No.131/1995 filed OS No.33/1998 against the plaintiffs in OS No.131/1995 stating that the family of the father of the plaintiff in OS No.33/1998 consisting himself, his two brothers and his father had partitioned their properties and have been enjoying the properties according to their shares with all rights; that in the said partition, the father of the plaintiff had got Ac.4-20 cents in OS No.356/1 (old S.No.763/1) and Ac.0-23 cents in OS No.356/2 (old S.No.763/2) of Mallavalli village; that on the death of his father, he acquired title and possession of the said Ac.4-20 cents in OS No.356/1 and Ac.0-23 cents in OS No.356/2, totaling Ac.4-43 cents of dry land situated in Mallavalli village. The father of the plaintiff formed a drainage channel about 50 years back and raised a fence in the said Ac.0-23 cents of land in S.No.356/2 and enjoying the same. As disputes arose in respect of Ac.0-23 cents, the defendants purchased an extent of Ac.4-00 at one acre each under different sale deeds dt. 8-5-1992 situated in S.No.356/2 and 3 of Mallavalli village from Rama Kotaiah, who purchased the property from the paternal uncles of him and Akkineni Madhusudahana Rao and Lokeswara Rao, who got Ac.2-00 each in S.No.356/2 on the east of the plaint schedule property in OS No.33/1998 and they conveyed their shares to Gutta Ramakotaiah under registered sale deeds and in turn the sons of Rama Kotaiah sold the said property to the defendants. Under the guise of ex-parte temporary injunction orders in IA No.444/1995, the defendants encroached the plaint schedule property and they also removed the drainage channel situated in the plaint schedule and made their land as Ac.4-23 cents, for which they have no title. In which, the defendants filed their written statement while denying the material allegations admitted that they have purchased an extent of Ac.4-00 under different sale deeds dt. 8-5-1992 with regard to the property situated in S.No.356/3 of Mallavalli village from Gutha Lakshmana Dass and three others, wherein it was clearly mentioned that the northern boundary is shown as donka belongs to Akkineni Bhaskara Rao and others and similarly in all the sale deeds pertaining to all of them the eastern boundary is shown as donka belonging to Akkineni Bhaskara Rao and others and the said donka is shown in the plaint plan filed in OS No.131/1995 and it was used to ingress by the plaintiff and admitted about appointment of commissioner and filing his report. On the above pleadings, the trial court framed the following issues in OS No.131/1995: 1. Whether the plaintiffs are in lawful possession of the schedule property? 2. Whether the plaintiffs are entitled to seek permanent injunction? 3. To what relief? In OS No.33/98: 1. Whether the plaintiff is entitled to the declaration that he is the absolute owner of the schedule property? 2. Whether the plaintiff is entitled to recover possession of the schedule property? 3. Whether the plaintiff is entitled to mesne profits? 4. To what relief? On a memo filed by the defendant in OS No.131/1995 to club the suit (OS No.131/1995) with OS No.33/1998 and to record common evidence in OS No.33/1998, the trial court clubbed both the suits and evidence was recorded in OS No.33/1998. On behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-3 were marked. On behalf of the defendants, D.Ws.1,3 and 4 were examined and Exs.B1 to B6 were marked. Exs.X-1 to X-10 were marked through witness ie., D.W.3. 2nd defendant himself examined in chief as D.W.2. His evidence has been eschewed by the trial court as the defendants failed to produce him for cross-examination. The plaintiffs in OS No.131/1995 claimed that they purchased the property covered under Exs.B-1 to B-4, but they do not indicate that they purchased the property covered under Exs.B-1 to B-4 under bill maktha system. Exs.B-5 and B-6, which are registered sale deeds, are in favour of Gutta Rama Kotaiah, who purchased four acres of land from Akkineni Madhusudhana Rao and Lokeswara Rao, who are the paternal uncles of the plaintiff in OS No.33/1998. Gutta Ramakotaiah himself purchased four acres of land and the sons of Gutta Ramakotaiah sold the property covered under Exs.B-5 and B-6 to the plaintiff in OS No.131/1995 under Exs.B-1 to B-4 is only four acres. Whereas the plaintiff in OS No.33/1998 (defendant in OS No.131/95) demonstrated that his father Vasudeva Rao got his share of Ac.4-20 in S.No.356/1 and Ac.0-23 cents in S.No.356/2 of Mallavalli village and after his death he has been in possession and enjoyment of the same. Advocate Commissioner who was appointed in IA No.143/95 in OS No.131/95 measured the land of both parties and filed his report and at the time of execution of warrant by the Commissioner, the plaintiff in OS No.33/1998 (defendant in OS No.131/1995) filed partition list dt. 12-6-1945 between his father, grand father and his sons, which clearly discloses that the father of the plaintiff in OS No.33/1998 got his share of land in S.No.356/1 and Ac.0-23 cents in S.No.356/2 and after his death, the plaintiff in OS No.33/1998 has been in possession of the same as per the Commissioner’s report. The plaintiff in OS No.33/1998 acquired valid title form his father who got the property fell to his share in the partition and he has been in possession of the same, whereas the plaintiffs in OS No.131/1995 failed to establish that they are in possession of Ac.0-23 cents in OS No.356/2 of Mallavalli village. While holding so, the trial court while decreeing OS No.33/1998 partly, dismissed OS No.131/1995. Against decreeing the suit OS No.33/1998 and dismissing the suit OS No.131/1995, the defendants in OS No.33/1998 and the plaintiffs in OS No.131/1995 filed AS Nos.23 and 22 of 2004 respectively before the lower appellate court, namely, Senior Civil Judge, Nuzvid. The lower appellate court after analyzing the oral and documentary evidence made available on record, dismissed the appeals by the impugned judgments. Questioning the same, the present appeals, viz., SA Nos.1245 and 1244 of 2010, respectively, are filed Learned counsel for the appellants in both the appeals contends that the partition list produced by the appellants-defendants in OS No.33/1998 at the time of execution of the warrant by the Commissioner cannot be received in evidence to prove the title of the plaintiff in OS No.33/1998, and if any dispute arises with regard to extent and survey number, the boundaries will prevail over than the extent and survey number, and therefore both the courts committed an error in holding that the plaintiff in OS No.33/1998 (defendant in OS No.131/1995) is in possession of Ac.0-23 cents in S.No.356/2. This court do not find any merit in the contention advanced by the learned counsel for the appellants for the simple reason that under Exs.B-1 to B-4 the plaintiffs in OS No.131/1995 (defendants in OS No.33/1998) have purchased one acre each, in all four acres, and when their vendor has got four acres of land, they cannot acquire title more than what their vendor got. Whereas the plaintiff in OS No.33/1998 demonstrated that his father formed a drainage channel about 50 years back and raised a fence in the said Ac.0-23 cents in OS No.356/2 of Mallavalli village and due to dispute the plaintiffs filed OS No.131/1995 and encroached the plaint schedule property by removing the drainage channel and made their land as Ac.4-23 cents. Merely because the plaintiffs in OS No.131/95 removed the fence on one side of the drainage channel and encroached into the property, it cannot be presumed that the boundary is extended to the fence on the other side of the drainage channel. The 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 suffer from any manifest illegality. Therefore, I do not find any question of law; much less substantial question of law arises for consideration in the second appeals. The second appeals are accordingly dismissed. ___________________ A. GOPAL REDDY, J Date:19-11-2010 kmr