IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIRST DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.525 OF 2000 BETWEEN Chittibomma Venkatapathi and others. …APPELLANTS AND Vandanapu Rukkayya and others. …RESPONDENTS Counsel for the Appellants: MR. P. CHANDRAMOULI Counsel for the Respondents: MR. M.V. SURESH The Court made the following: - JUDGMENT: This second appeal is by defendants 1 and 2 in O.S.No.122 of 1983 before Subordinate Judge, Kovvur, filed by the plaintiffs/respondents herein for possession and for profits of Ac.2.51 cents of land out of total extent of Ac.22.45 cents in R.S.No.436 of Lakkavaram village, Kovvur Taluk, Jangareddigudem Sub-Registry, West Godavari District. 2. In the aforesaid suit, it was alleged by the plaintiffs that the property originally belonged to one Maturi Jaggarao, who had alienated an extent of Ac.11.62 cents to the father of the plaintiffs and defendant No.3 along with two others under an agreement of sale dated 07.07.1979. It was also alleged that the plaintiffs along with defendant No.3, as sons of one of the agreement holder (Kesavarao) purchased the suit extent under registered sale deed dated 19.07.1979. It was, however, alleged that the defendants have no right to disturb the peaceful possession of the plaintiffs, but they trespassed and enjoyed the profits from the suit land for the agricultural year 1980-81 onwards. Therefore, the present suit for possession. 3. The defendants 1 and 2, who are appellants herein, resisted the suit by claiming that they are owners of adjacent extent of Ac.26.00 cents and that they claim to be in possession of their own land. They also pleaded that they are in possession of suit schedule land for statutory period and perfected the same by adverse possession. The title of the plaintiffs was, accordingly, denied by the defendants and when the suit went for trial, inter alia, the trial Court framed the following issues and the relevant issues 1 to 3 are as under: 1. Whether the sale deed dt.19.7.1979 executed by Maturi Jaggarao in favour of the plaintiffs and the third defendant regarding plaint schedule land is concocted document? 2. Whether the plaintiffs and the third defendant have got title to the plaint schedule property within the statutory period? 3. Whether the defendants 1 and 2 have acquired title to the plaint schedule property by adverse possession? 4. It appears that before trial, an application was moved by the plaintiffs for local inspection so as to establish the identity of the suit schedule property. However, the trial Court has recorded in para 10 of its judgment that the parties did not cooperate for local inspection with the result the physical features and benefit of local inspection was denied to the trial Court. It appears from the evidence that plaintiffs and defendants are owners of neighbouring lands and there is a natural boundary of Palmyrah Kattava, which is said to separate both the lands. However, as stated above, the application for Commissioner was frustrated by non-cooperation of the parties and ultimately, on consideration, the trial Court came to the conclusion that the plaintiffs have failed to establish entitlement for the relief of possession and ultimately, dismissed the suit. 5. The lower appellate Court, on appeal being AS.No.75 of 1993, has reversed the aforesaid judgment and hence, this second appeal. 6. This appeal was admitted on the following substantial questions of law on 20.02.2001: 1. Whether the judgment of the lower appellate Court is vitiated inasmuch as the approach is perverse based on no evidence and also contrary to the evidence? 2. Whether the non-consideration of the vital issues by the lower appellate Court, which were considered by the trial Court, while reversing the judgment of the trial Court has vitiated the judgment of the lower Court? 3. Whether the lower appellate Court failed to see as the suit is for delivery of possession, the plaintiffs have established their possession over the suit lands and they were dispossessed within the statutory period of 12 years? 7. Heard Mr. M.P. Chandramouli and Mr. M.V. Suresh, learned counsel on either side. 8. While it is evident that the dispute in the suit centers round the identity of the suit property and its localization on ground, there was, however, no issue before the trial Court on the said aspect. However, keeping in view the rival pleadings, the trial Court had allowed the application for appointment of Advocate Commissioner for local inspection and for various reasons attributable to the parties, the said application was ultimately frustrated and the said evidence was not before the trial Court. It had, therefore, no option but to dismiss the suit. The lower appellate Court’s judgment, however, leaves several things to be desired and a reading of the said judgment shows that the discussion starts from para 15, which is again a repetition of the entire pleadings. The only reasoning found in the lower appellate Court’s judgment is that the documents produced by the defendants do not show the suit Sy.No.436. Keeping in view the case of the defendants, the lower appellate Court could have appreciated that while the defendants are owners of the neighbouring land, the suit survey number may or may not be shown in their documents and that by itself is not conclusive. Further, whether the defendants are able to establish their case is not material when the plaintiffs are seeking the relief of possession based on title and the burden is entirely on the plaintiffs to establish entitlement of the said relief. As a final Court of fact, the lower appellate Court’s judgment is defective and unsustainable. 9. The lower appellate Court has failed to examine the case of the plaintiffs from the aforesaid standpoint and on ipsi-dixit has allowed the appeal by reaching the conclusion that the plaintiffs are in possession of the property and that the defendants have encroached. No evidence in support of the said conclusion is on record and as such, the judgment of the lower appellate Court deserves to be declared as perverse by answering the first substantial question of law in favour of the appellants. The impugned judgment is liable to be set aside and is accordingly set aside and the appeal is remitted for fresh consideration. 10. It is also noticed by this Court that even before this second appeal and application for stay came up, the decree was executed by the plaintiffs and possession was delivered to them. In that view of the matter, this Court has recorded the same while considering the application for stay on 18.07.2000 and the stay petition was dismissed. 11. The fact situation, evidently, shows that the plaintiffs, who had to discharge the burden of entitlement to the relief sought for, have failed to do so, though the trial Court had extended indulgence by appointing an Advocate Commissioner. The identity of the suit schedule property and its localization on the site with reference to plaintiffs title document was, therefore, essential to be established by the plaintiffs. 12. Learned counsel for the respondents/plaintiffs submits that for the circumstances beyond the control of the plaintiffs, they could not take advantage of the order of the trial Court appointing Advocate Commissioner and submits that an opportunity may be given to the plaintiffs in that regard so that interest of justice would be served. 13. Keeping in view the facts and circumstances of the case, while remitting this appeal for consideration to the lower appellate Court, I deem it appropriate to permit both the parties to lead such further oral or documentary evidence, as they deem appropriate to substantiate their respective case and if such request is made by either or both the parties, the lower appellate Court shall grant one opportunity to each of the parties and after considering such evidence together with the evidence already on record, shall hear and decide the appeal afresh in accordance with law. It is made clear that any observations in the impugned judgment or this judgment shall be no impediment to the lower appellate court to independently consider and decide the appeal on merits. The possession already delivered to the plaintiffs in pursuance of the impugned decree shall abide the result of the appeal by the lower appellate Court on remand hereinabove ordered. The second appeal is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J January 21, 2011 DSK