MIN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : THE HON’BLE SRI JUSTICE V.SURI APPA RAO SECOND APPEAL.No.1120 of 1998 Date:18.02.2011 Between:- B.Munemma and others. .. Appellants. A N D Kobaku Subrahmanyam and others .. Respondents. The Court made the following: ORDER: This appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 06.10.1998 in A.S.No.27 of 1992 on the file of III Additional District Judge, Tirupati, whereby the appeal filed by the respondents – defendants was allowed. Aggrieved by the judgment Dt.6.10.1998 in A.S.No.27 of 1992 on the file of learned III Additional District Judge, Tirupati, the legal representatives of plaintiff filed this appeal. 2. For the sake of convenience, the parties are referred to as they are arrayed in the suit. 3. Wife and children of one B.Girivasulu Reddy, who are appellant Nos.1 to 3 and one Sujatha, wife of Chandrasekhar Reddy, filed the appeal. Originally B.Girivasulu Reddy, husband of the 1st appellant filed the suit for declaration that he is the sole and absolute owner of the plaint schedule property and for grant of permanent injunction restraining the defendants, their men, agents, servants or anybody from in any way interfering with his peaceful possession and enjoyment of the plaint schedule property. 4. It is the case of the plaintiff that he is the absolute owner of the schedule property, which is a building covered by specific boundaries. He was a permanent lessee of the plaint schedule land along with other lands of Sri Swamy Hathiramji Mutt. The said Mutt authorities filed a suit in O.S.No.7 of 1973 on the file of Additional Subordinate Judge, Tirupati for declaration and possession of the plaint schedule property and other lands against the plaintiff and others. The said suit was ended in compromise and the plaintiff purchased the plaint schedule property and other lands from the Mutt after obtaining due approval from the Commissioner of Endowments. In the compromise petition, the extent of the plaint schedule land was mentioned as Ac.0.18 cents and it was only an approximate mention and it was specifically understood the plaint schedule property was within the definite boundaries given in the compromise petition. The plaintiff has been in possession and enjoyment of the same comprising the boundaries covered by ridges for more than the statutory period till he purchased the land in the year 1983. Further, he became the absolute owner of the plaint schedule property in his own right. The 1st defendant, who is the elder brother of plaintiff and he has been in possession and enjoyment of the lands to the east and south of the plaint schedule lands and coming to know that the extent mentioned as Ac.0.18 cents instead of Ac.0.28 cents in the compromise petition proclaiming in the village that he has got right in the difference of extent of Ac.0.10 cents in the actual boundaries and approximate extent mentioned in the compromise petition. The 1st defendant in order to have wrongful gain and to create complication has been trying to alienate the plaint schedule property in favour of defendants 2 and 3 by creating spurious and fictitious documents. Defendants further tried to take forcible possession of the schedule property, but the plaintiff resisted the same with the help of neighbours. Therefore, he filed the suit for declaration that he is the absolute owner of the schedule property and for permanent injunction restraining the defendants from interfering with his peaceful possession. 5. In the written statement defendants contended that the plaint schedule is not correct and the plaintiff entered into a compromise and got only an extent of Ac.0.18 cents with specific boundaries and not Ac.0.28 cents. Further, the 1st defendant has entered into compromise with Sri Swamy Hathiramji Mutt and he was given Ac.1.75 cents in Survey No.290 with specific boundaries. The 1st defendant has been in exclusive possession and enjoyment of the said Ac.1.75 cents within the boundaries as per the compromise recorded in I.A.No.1652 of 1982 in O.S.No.7 of 1973 Dt.31.12.82. The compromise in favour of the plaintiff was on 17.03.1983 much subsequent to the compromise recorded in favour of the 1st defendant and the plaintiff has no right to claim title, interest or possession of the plaint schedule property of an extent of Ac.0.28 cents, but he is entitled to only an extent of Ac.0.18 cents. Therefore, the suit filed by the plaintiff is liable to be dismissed. 6. The trial Court framed the following issues for trial: (1) Whether plaintiff is entitled for declaration as prayed for? (2) Whether plaintiff is entitled for permanent injunction? (3) To what relief? 7. P.Ws 1 to 3 were examined on behalf of the plaintiff and Exs.A.1 to A.3 were marked. D.Ws 1 to 3 were examined on behalf of the defendants and Exs.B.1 to B.3 were marked. 8. Considering the oral and documentary evidence adduced by both parties, the learned trial Judge observed at Page No.13 of the judgment that the defendants got Ac.1.75 cents in Survey No.290 with specific boundaries and that extent does not include in the suit land and the plaintiff has proved his title over the suit land and also proved that he is in continuous possession of the property and decreed the suit. 9. Aggrieved by the judgment of the trial Court, the defendants filed the appeal in A.S.No.27 of 1992 on the file of III Additional District Judge, Tirupati. After hearing, the III Additional District Judge, Tirupati has allowed the appeal filed by the defendants on the ground that the original plaintiff Girivasulu Reddy has purchased only Ac.0.18 cents of land and not Ac.0.28 cents of land and set aside the judgment and decree passed in O.S.No.565 of 1985 by the lower Court. 10. Aggrieved by the Judgment and decree passed by the III Additional District Judge, Tirupati, the appellants, who are the legal representatives of original plaintiff, filed this appeal. 11. None appeared for the respondents. 12. The learned counsel for the appellant contended that the lower appellate Court erred in not referring to the report of the Commissioner, which clearly shows that there is no dispute with regard to the boundaries as the 1st defendant himself has admitted that there is no dispute with regard to the boundaries. 13. At Paragraph No.22 of the judgment, the learned III Additional District Judge, Tirupathi has observed as follows: “For the reasons stated above, the lower Court erred in decreeing the suit when the plaintiff is not entitle for such a declaration, as he has purchased only 18 cents of land and not 28 cents of land and erred in granting permanent injunction. In these circumstances I hold that the judgment and decree of the lower Court is liable to be set aside. So far as the remaining 10 cents of land….” 14. Admittedly, the plaintiff entered into compromise with regard to Ac.0.18 cents of land, though it was approximately mentioned in the compromise deed that the total extent was found to be Ac.0.28 cents. So, the 1st defendant, who is no other than the brother of the plaintiff claimed the remaining Ac.0.10 cents of land on the ground that the plaintiff entered into compromise with Sri Swamy Hathiramji Mutt only for the extent of Ac.0.18 cents but not for total extent of Ac.0.28 cents. 15. The learned III Additional District Judge, Tirupati totally allowed the appeal with costs throughout dismissing the suit filed by Girivasulu Reddy, husband of the 1st appellant. Admittedly, the plaintiff is entitled for Ac.0.18 cents as per the compromise entered into in O.S.No.7 of 1973 on the file of Additional Subordinate Judge, Tirupati with Sri Swamy Hathiramji Mutt, Tirupati. So far as the remaining Ac.0.10 cents of land is concerned, there is no specific finding by the lower appellate Court though it has been mentioned in Para No.22 of the judgment. It is, therefore, just and necessary to remand A.S.No.27 of 1992 to the lower appellate Court with a direction to dispose of the same, after giving opportunity to both parties, within a period of Six months from the date of receipt of a copy of this Order. There shall be no order as to costs. ________________________ V.SURI APPA RAO, J 18th February, 2011 KSP