IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY THIRD DAY OF AUGUST TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.396 of 2006 Between: Kesamsetti Rajunaidu .. Appellant AND Kanchipati Somunaidu & 6 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.396 of 2006 JUDGMENT: The second appeal is directed against the judgment and decree in A.S.No.29 of 2003, on the file of the Senior Civil Judge’s Court, Chodavaram, dated 20.12.2005, by which the judgment and decree in O.S.No.164 of 1998, on the file of the Principal Junior Civil Judge’s Court, Chodavaram, dated 13.10.2003, were reversed and the defendants 1 to 6, their men, agents and servants are restrained from interfering with the plaintiffs’ land covered by S.No.93/6 as per Ex.A-7-Field Measurement Book and the defendants were directed to deliver vacant possession of land covered by S.No.93/6 as per Ex.A-7 within six (6) months from the date of judgment and decree. 2. The parties are referred to herein as they are arrayed before the trial Court. 3. The plaintiffs filed the suit for recovery of possession of the plaint schedule property from the defendants by evicting them and for a consequential permanent injunction (the suit having been so converted after amendment of the suit originally filed for permanent injunction alone). The plaintiffs claimed that having inherited the property from Kanchipati Gangu Naidu and Kanchipati Ramu Naidu, the plaintiffs are in joint enjoyment of the plaint schedule property with which the defendants had nothing to do. The defendants were stated to be residing in the western house and to be aggrieved by the refusal of the plaintiffs to sell the suit site to them. The plaintiffs alleged that after unsuccessful attempts to forcibly take possession, the defendants ultimately encroached upon the suit land on 10.05.2001 in the absence of the plaintiffs from the village. 4. The defendants claimed that the suit site is not covered by S.No.93/6, but is covered by S.No.93/5 over which the plaintiffs or their predecessors have no right, title or interest. S.No.93/5 belonging to Gorle Chellubabu and later his son Gorle Appalanaidu, devolved on the second defendant and the mother of the 5th defendant and a house was constructed in a portion of S.No.93/5 leaving some vacant site towards East and North of their house. A portion of the house was let out to the Social Welfare Department for running a S.C. Boys Hostel from 1981 for which purpose, a thatched hut was constructed to the East of the vacant site of the defendants and into the suit schedule site, the doorway of the defendants opens. The defendants, hence, claimed that the plaintiffs’ right to the suit site was denied by the defendants long back and as the claim was refused by the civil Court in O.S.No.65 of 1995 and another suit, it cannot be re- agitated again being barred by estoppel and res judicata. The defendants, hence, desired the suit to fail. 5. The correctness of the plaint schedule, the possession of the same, the location of the suit schedule property in S.No.93/6 or 93/5 and the entitlement of the plaintiffs originally for permanent injunction and later for recovery of possession were the subject of issues framed by the trial Court. 6. P.Ws.1 and 2 and D.Ws.1 to 5 were examined and Exs.A-1 to A-7 and Ex.C-1 were marked during trial (D.W.2 is an Advocate Commissioner appointed in the suit and his report is Ex.C-1). 7. The trial Court rendered its judgment on 13.10.2003 concluding that the plaintiffs failed to prove their possession and enjoyment of the suit property while the defendants proved their possession and enjoyment and while the relief of permanent injunction needs no consideration after the amendment, the relief of recovery of possession also has to fail as the plaintiffs failed in proving the entire suit schedule property to be covered by S.No.93/6 and not S.No.93/5. The plaintiffs who failed to establish their possession of the plaint schedule property at any time either by proving Exs.A-1 to A-4, title deeds and pass books, or Ex.A-5 to A-7, No.10(1) Account, No.3 Adangal for the Fasali 1405 and Field Measurement Book by examining the concerned officials and who did not examine any neighbouring ryots or villagers, cannot claim to have proved their case. The trail Court also concluded that the defendants examined the people of the locality including the son of Pattamma, by name G. Nagabhushana Rao as D.W.4, a vendee from the plaintiffs in respect of some other property and as a thatched house in the schedule property used by the staff of the Social Welfare Hostel probablised the enjoyment of the defendants who let out a portion of their house to the BC Hostel, the trial Court dismissed the suit without costs. 8. In appeal, the first Appellate Court examined the rival contentions and evidence all over again and considered the lawful possession and enjoyment of the suit property by the plaintiffs and their entitlement for recovery of possession of the suit property. 9. The first Appellate Court noted that the plaintiffs, of course, did not examine the neighbouring land owners and did not prove the joint possession of the Ac.0.14 cents by both of them, but the Advocate Commissioner in his report Ex.C-1 and the Mandal Deputy Surveyor in the combined plan of the survey numbers in the locality clearly probablised 80% of the disputed area being covered by S.No.93/6, whereas a small bit of S.No.93/5 was also covered by the plaint schedule site in the north western corner. The first Appellate Court found that a rectangular long strip in the suit property is in S.No.93/6, whereas the remaining disputed site in S.No.93/5 is triangular in shape. The first Appellate Court, therefore, interfered with the findings of the tiral Court and concluded that as most of the plaint schedule land is covered by S.No.93/6 in which D.W.1 admitted to be having absolutely no right, the plaintiffs were entitled to the relief in respect of S.No.93/6. The admissions of D.Ws.2 to 5 concerning the location and identity of the property were also referred to by the first Appellate Court and it was concluded that D.Ws.1 to 5 failed to prove any part of the plaint schedule property being used as a kitchen attached to the Social Welfare Hostel. The first Appellate Court, on the basis of Exs.A-1 to A-7, held clinching proof of ownership of S.No.93/6 to an extent of Ac.0.14 cents for P.W.1’s father and consequential possession and enjoyment of P.Ws.1 and 2 to be available on record and in view of the non- existence of the hut used as a kitchen by the time of the first visit of the Commissioner, the plaintiffs were held entitled for recovery of possession of land to the extent it is covered by S.No.93/6 as shown in Ex.A-7. The first Appellate Court, therefore, reversed the findings and decree of the trial Court and granted relief of recovery of possession and permanent injunction in respect of S.No.93/6 as per Ex.A-7. 10. The first defendant is before this Court with this second appeal challenging the said reversing judgment and contending that the inconsistent pleas of the plaintiffs about partition or jointness, the non-examination of the neighbouring land owners, the non-examination of the officials connected with Exs.A- 1 to A-7, the use of the thatched shed in suit site as kitchen for the hostel etc., should have led to the dismissal of the suit. Substantial questions of law are stated to be arising about these questions of fact and also on the applicability of constructive res judicata in view of the conclusions in O.S.No.65 of 1995 filed by the plaintiffs. 11. The second appeal was admitted by a learned Judge of this Court on 13.04.2006 on the question whether the present suit is barred by principle of constructive res judicata in view of O.S.No.65 of 1995 for the same relief. 12. Sri K. Kanaka Raju, learned counsel for the second appellant and Sri Bankatlal Mandhani, learned counsel for respondents 1 and 2/plaintiffs are heard. 13. While answering the substantial question of law framed at the time of admission, it also becomes necessary to appropriately direct the executing Court about the manner in which the decree of the first Appellate Court has to be executed in the light of the content of the controversy between the parties before the three Courts. 14. Insofar as the substantial question of law about the present suit being barred by constructive res judicata is concerned, neither the pleadings nor the judgment and decree in the earlier suit have been filed before any of the three Courts, leave alone being proved and it is well settled that in order to establish a plea of res judicata or constructive res judicata, proof should be forthcoming through proof of pleadings and the decision in the earlier suit or proceeding in order to identify any overlapping of the parties or the subject matter or the decision in the earlier and the present suits. Such proof being absent and as the first defendant as D.W.1 did not refer to the earlier suit or the result thereof and as D.Ws.2 to 5 have also made absolutely no reference to the same, the mere mention in the written statement or the additional written statement about any earlier litigation cannot be considered as probablising any bar of res judicata or constructive res judicata. 15. While the question framed should, therefore, be decided against the appellants, the plaint schedule clearly specifies the property to be covered by S.No.93/6 of Ravikamatham Village and Mandal of Visakhapatnam District. In the written statement and the evidence for the defendants or the cross-examination of P.W.1, no claim has been laid by the defendants to any portion of S.No.93/6, their attempt being directed towards claiming the plaint schedule to be covering a portion of S.No.93/5 belonging to them. The first plaintiff as P.W.1, even in his chief examination, referred to the defendants having land in S.No.93/5 to the west of the plaint schedule. Irrespective of what the plaintiffs did with their own property sought to be made the subject of enquiry during the trial by the defendants, it is clear that the parties are also clear about the plaintiffs having rights in S.No.93/6 and the defendants having rights in S.No.93/5. 16. The Advocate Commissioner appointed by the Court in I.A.No.217 of 1999 in the suit executed the warrant leading to Ex.C-1-Report and as P.W.2, he stated that whatever was observed by him concerning the physical features was specified in his report Ex.C-1. Ex.C-1 mentioned the measurements of S.No.93/5 and 93/6 to have been taken with the assistance of the Mandal Surveyor and Ex.A-7 is the certified copy of the Field Measurement Book showing the demarcation between the two sub-divisions of S.No.93. Ex.C-1-Report shows while the disputed site was vacant by the time of his first visit, a thatched shed emerged in the same by the time of his second visit appearing to be used as kitchen and with reference to the report and rough plan of the Commissioner and Ex.A-7, the first Appellate Court concluded 80% of the disputed site to be in S.No.93/6 and a small portion to be in S.No.93/5 and, therefore, clarified in the decree granted by it while reversing the judgment of the trial Court that the reliefs of recovery of possession and permanent injunction are in respect of the land covered by S.No.93/6 as per Ex.A-7. While there is absolutely no basis or occasion to interfere with the findings of fact by the first Appellate Court, it only needs to be clarified that execution of this decree for recovery of possession and permanent injunction should be by getting the boundary fixed between S.Nos.93/6 and 93/5 of Ravikamatham Village and Mandal, Visakhapatnam District, in any execution proceedings before the executing Court and in the light of both parties having raised no objection to the report of the learned Advocate Commissioner in I.A.No.217 of 1999 and in view of his acquaintance with the suit locality and the dispute between the parties, the executing Court may preferably get the decree executed pending in the execution petition through the same Advocate Commissioner appointed in I.A.No.217 of 1999 in the suit, subject to his availability. 17. So, while these directions shall be complied with by the executing Court in executing the decree, the second appeal has to otherwise fail and is, accordingly, dismissed without costs. ______________________ G. BHAVANI PRASAD, J Date: 23rd August, 2011 HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.396 of 2006 Date: 23rd August, 2011