THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.740 of 2009 Dae of Judgment: --12—2009 Between: Ithey Suguna ..Appellant and 1.Katametti Raja Kumar and others. ..Respondents The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.740 of 2009 Oral Judgment: 1. This Second Appeal by the 2nd defendant is directed against the judgment and decree dated 05-02-2009 passed in A.S.No.85 of 2004 by the VII Additional District Judge (Fast Track Court) East Godavary, Kakinada whereby he dismissed the appeal preferred by the defendants confirming the judgment and decree of the trial Court decreeing the suit of the respondents/plaintiffs in O.S.No.1050 of 1999 by the Principal Junior Civil Judge, Kakinada dated 23-03-2004. 2. The plaintiffs instituted the above suit for declaration of title and for recovery of vacant possession after evicting the defendants from the suit schedule property and recovery of value of the articles lying in the schedule property when the 1st plaintiff was dispossessed. According to the plaint averments, the lands in Sy.Nos.193/7, 193/10 part and 193/5 part were put together and prepared a lay out and obtained approval from the Director of Town and Country Planning, Hyderabad. Plot No.21 in the said lay out was purchased by R.Suryakumari under a registered sale deed dated 28-06-1985 for a valuable consideration of Rs.5,500/- and she was put in possession by her vendors—A.Talupulamma and her two daughters, who are the legal heirs of A.Masenu. Suryakumari sold the said plot No.21 to plaintiff No.1 under a registered sale deed dated 28- 08-1991 for a valuable consideration of Rs.28,400/- and the 1st plaintiff was put in possession of the schedule property which she enjoyed till 23-02-1998 when the injunction granted in O.S.No.773 of 1995 in favour of the 1st defendant was made absolute. The 1st plaintiff paid the taxes to the Gram Panchayat on 25-10-1995 and 18-11-1995. 3. While so, the 2nd defendant filed O.S.No.23 of 1992 on the file of II Additional Senior Civil Judge, Kakinada against the 1st plaintiff and another for declaration of title to the schedule property (Ac.0.10 cts. in Sy.No.193/5) and for recovery of possession. The 1st plaintiff, who is the 2nd defendant in the said suit (O.S.No.23 of 1992), filed written statement and contested the matter. The said suit was dismissed after getting it advanced. During the pendency of the above suit (O.S.No.23 of 1992) the 2nd plaintiff through her G.P.A. sold Ac.0.10 cts. of land to the 1st defendant under a registered sale deed dated 25-04-1994. It is contended that GPA and the sale deed are fabricated documents and brought into existence with a view to defeat the rights of the 1st plaintiff. Pending O.S.No.23 of 1992, filed by the 2nd defendant, the 1st defendant filed O.S.No.733 of 1995 for bare injunction against the 2nd plaintiff. The suit schedule property was situated towards the South of plot No.15. In the suit—O.S.No.23 of 1992 filed by the 2nd defendant it is stated that the plaint schedule property was situated South of her property, whereas the Southern boundary of the schedule property in O.S.No.733 of 1995 was mentioned as road. Therefore, the property purchased by the 1st defendant under the sale deed dated 25-04-1994 and the property purchased by the 1st plaintiff under registered sale deed dated 28-08- 1991 are different. Under the garb of injunction obtained in I.A.No.3477 of 1995 in O.S.No.733 of 1995, which was made absolute on 23-02-1998, the 1st defendant trespassed into the plaint schedule property. In the said I.A. there is a finding of the Court that the property claimed by the 1st defendant and the 1st plaintiff is different. The 1st plaintiff is living in Addateegala with her husband. The 2nd plaintiff is related to the 1st plaintiff. As the schedule property is a vacant site, the 1st plaintiff has leased out the same to the 2nd plaintiff for raising vegetables; thus, the 2nd plaintiff was in actual possession and enjoyment of the schedule property, which is in constructive possession of the 1st plaintiff. It is stated that A.Masenu purchased Ac.2.00 of land covered by layout plan No.379/85 under a registered sale deed dated 06-07-1950 and his brother—Uppaswamy has purchased another Ac.2.00 of land, which is different from the land purchased by Masenu. There is no land belonging to Uppaswamy abutting the plaint schedule property. The defendants having obtained sale deed with wrong recitals claiming the land purchased by the 1st plaintiff. Hence the above suit. 4. The 1st defendant filed a written statement contesting the claim of the plaintiffs. Defendants 2 and 3 filed a Memo adopting the written statement of the 1st defendant, wherein it is stated that when the 2nd plaintiff tried to trespass into the land purchased by the 1st defendant, he filed O.S.No.733 of 1995. A.Masenu is not the owner of the plaint schedule property and he (1st defendant) never trespassed into the property of the plaintiffs and he is in possession of the property purchased under sale deed dated 25-04-1994. The alleged lay out plan does not relate to the property purchased by the 1st defendant. The Advocate Commissioner appointed in I.A.No.3828 of 1995 in O.S.No.733 of 1995 has identified the property with specific boundaries. The 1st plaintiff by falsely creating a sale deed dated 28- 08-1991 wanted to trespass into the property of the 1st defendant, which was successfully prevented by the defendants. With the above pleadings, necessary issues were settled for trial. 5. Both the suits—O.S.Nos.733 of 1995 and 1050 of 1999 were clubbed together for trial and as per the orders dated 29-01-2001 made in I.A.No.4127 of 2000 and common evidence was recorded in O.S.No.1050 of 1999. 6. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A1 to A16 were marked. On behalf of defendants, D.Ws.1 to 3 were examined and Exs.B1 to B8 were marked. 7. The learned trial court after appreciation of oral and documentary evidence concluded that A.Masenu and Uppaswamy are brothers; Uppaswamy has purchased Ac.2.00 cts. of land situated in the East portion of the land in Sy.No.160/3 on 13-11-1945 under a registered sale deed and thereafter Masenu purchased Western side Ac.2.00 cts. of land in the same survey number. Thus, the property purchased by Masenu is situated towards the West of the property purchased by Uppaswamy. After the death of Masenu the property purchased by him along with others situated in Sy.Nos.193/7 to 10 and 193/5 were divided into house sites and a comprehensive lay out was approved by the Director of Town and Country Planning under Ex.A3. The wife of P.W.2 purchased plot No.21 under Ex.A2 registered sale deed on 28-06-1985 from the wife and two daughters of Masenu and she sold the same to the 1st plaintiff under a registered sale deed dated 28-08-1991 which clearly reveals that legal heirs of Masenu obtained lay out of the site purchased by him along with others and sold plot No.21 to the wife of P.W.2; whereas the evidence adduced by the defendants shows that Uppaswamy purchased Ac.2.00 of land out of which he sold Ac.1.50 cts. to one B.Latcha Rao under a registered sale deed dated 21-03- 1977 and gifted Ac.0.50 cts. to his wife Suramma under a registered gift deed dated 04-09-1985 and the said Suramma sold Ac.0.10 cts. of land to Karri Ramam under Ex.B3—sale deed dated 05-12-1985; she also sold Ac.0.10 cts. of land to D.Nagaratnam under Ex.B2—sale deed dated 17-11-1988. The evidence further reveals that Suramma gifted Ac.0.10 cts. of land to the 2nd defendant under a registered gift deed dated 17- 11-1988 and bequeathed the remaining Ac.0.20 cts. of land by a registered Will dated 06-04-1990 in favour of Subbarao and Satyavathi. Though the husband of Satyavathi was examined as D.W.8, the defendants have not filed the said registered Will dated 06-04-1990 or a registration extract of the same into the Court. According to the 1st defendant, he has purchased Ac.0.10 cts. of land from the 2nd defendant and Ac.0.20 cts. of land from the said Subbarao and Satyavathi under Exs.B6 and B7—sale deeds dated 25-04-1994 and he has been in possession and enjoyment of the said properties. The 1st plaintiff is claiming that the property purchased by her was originally belonged to A.Masenu, which is shown as part ‘A’ in Ex.A3—lay out and that Uppaswamy has no property in part ’A’ of the lay out. The defendants are claiming that out of Ac.0.50 cts. of land gifted by Uppaswamy to his wife—Suramma, she retained Ac.0.30 cts. of land after selling Ac.0.20 cts., and the property purchased by the 1st defendant from the 2nd defendant and also from Subbarao and Satyavathi includes Plot No.21. The trial Court after considering the lay out under Ex.A3 and Ex.B4—registration extract of sale deed dated 21-03-1977 held that Uppaswamy alienated Ac.1.50 cts. the Eastern portion in the total extent of Ac.2.00 cts. and having remained Ac.0.50 cts. of land in the Western side which was gifted under Ex.A5 and the registration extract marked as Ex.A8 reveals that the Western boundaries and Northern boundaries are shown as land of B.Talupulamma and B.Mahalaxmi, who are the daughters of Masenu. Under Ex.B5 gift deed Uppaswamy has gifted Ac.0.50 cts. of land situated in North of his total extent of Ac.2.00. But in Ex.B4—sale deed the Western boundary is shown as the remaining land of Uppaswamy; thus it shows that Uppaswamy was having Ac.0.50 cts. of land towards Western side of the land of Ac.1.50 cts. sold by him to Latcha Rao, which has been executed in the year 1977. After execution of such sale deed he is having land only on the Western side of total extent of Ac.2.00, but he has shown in Ex.B5—gift deed that he was gifting Ac.0.50 cts. of land situated in the Northern side, though he is not having site in the Northern side and he is having site only towards the West side of Ac.1.50 cts. sold under Ex.B4 . 8. After careful scrutiny of Exs.A5, A7, A8 the lower court found there is some discrepancy in Ex.B5 (A8) gift deed and accordingly partly decreed the suit of the plaintiffs i.e. O.S.No.1050 of 1999 holding that the 1st defendant has occupied the plaint schedule property by obtaining injunction orders and dismissed the suit of the 1st defendant i.e. O.S.No.733 of 1995. Aggrieved by the same, two appeals, namely, A.S.No.85 of 2004 and A.S.No.106 of 2004 & cross-objections were filed. 9. The lower appellate Court after considering the report of the Advocate Commissioner to which the defendants filed objections in I.A.No.475 of 2002 for re-entrustment of warrant, which was dismissed on 26-02-2002, held that the objections are deemed to have been rejected and the report of the Advocate Commissioner forms part of the record and it is necessarily to be taken into consideration, since there is no identity dispute. The Commissioner’s report further shows that as per the Field Measurement Book, lay out plan No.375/85 is covered by Sy.Nos.193/5A, 5B, 5C, 5D and 193/7, 8, 9 and 10 parts under Ex.A3 —lay out plan consisting of ‘A’ and ‘B’ blocks; ‘A’ block in Ex.A3 is covered by Ex.B1 property, which is covered by Ex.A7 purchased by Uppaswamy. The report of the Commissioner further reveals that the land sold to Latcha Rao by Uppaswamy is Southern part of land purchased by Uppaswamy, Ac.0.50 cts. gifted to Suramma under Ex.A8 gift deed is Northern side of land sold to Latcha Rao. Puntha is on the East of the entire lay out to ‘B’ block of Ex.A3 plan in an extent of Ac.2.16 cts. Even in the absence of Commissioner Report, the evidence on record both oral and documentary does not support the defendants’ claim because Suramma sold Ac.0.10 cts. to Karri Ramudu by Ex.B3—sale deed and the said Ac.0.10 cts. is abutting the land sold to Latcha Rao under Ex.B4—sale deed on North. Both the parties admitted the boundaries given to Ex.B3—sale deed. Once it is borne out from the record that Ex.B3 property is situated to the North of the land purchased by Latcha Rao, the remaining Ac.0.40 cts. held by Suramma must be to the further North of Ex.B3 property. Suramma sold Ac.0.10 cts. to Nagaratnam by Ex.B2 which is on the North of Ex.B3 property sold to Karri Ramudu. Hence, the remaining Ac.0.30 cts. must be on the further North of Ex.B2 property and it cannot be on the West as contended by the appellants and accordingly held that the evidence of D.Ws.1 to 3 reveals that no road was formed from the land of Suramma to South and boundary description given in Ex.B5—gift deed in favour of 2nd defendant by Suramma is not correct; the lay out in Ex.A3 was already approved in 1985, by the time Ex.B5 was executed by Suramma in the year 1988, she was aware that she was not having any land around the land sold to Karri Ramudu under Ex.B3 sale deed. Thus, the evidence on record proved that the schedule property is part and parcel of the land purchased by A.Masenu under Ex.B1 sale deed. Further, during the pendency of O.S.No.23 of 1992, the 2nd defendant sold Ex.B5 property and executed a sale deed under Ex.B6 in favour of 1st defendant on 25-04- 1994, which is hit by doctrine of lis pendence. The 2nd defendant was not in possession of the property by the date of filing of the suit for declaration of title and for recovery of possession, so the 1st defendant who claimed to have purchased the property from the 2nd defendant cannot claim to have obtained possession. The 1st defendant was aware of pendency of O.S.No.23 of 1992 by the date of Ex.B6—sale deed, but by suppressing it, he filed O.S.No.733 of 1995 for permanent injunction against the 2nd plaintiff having knowledge that 1st plaintiff is disputing the title of her vendor 2nd defendant and obtained interim injunction orders basing on Exs.B5 and B6 documents. Since the 2nd defendant was not in possession of the property, the question of delivering possession of the same to the 1st defendant under Ex.B6 sale deed does not arise. Accordingly, dismissed both the appeals and cross-objections. Aggrieved by the dismissal of A.S.No.85 of 2004 by common judgment dated 05-02- 2009 the present Second Appeal is filed. 10. It is not disputed that the finding recorded in A.S.No.106 of 2004, preferred against O.S.No.733 of 1995, under common judgment has become final, since no Second Appeal has been filed. In view of the same, the present Second Appeal filed against the very same finding cannot be entertained. Further, the concurrent finding of fact recorded by the lower Court is on appreciation of evidence, which do not give rise to any substantial question of law to admit the Second Appeal. 11. The Second Appeal is accordingly dismissed at the stage of admission. ________________ A.GOPAL REDDY, J. -12-2009 Murthy