HON’BLE SRI JUSTICE A.GOPAL REDDY S.A.No.545/2010 DT. 16-7-2010 1. Arugula Pandu and another …Appellant V. Godi Padayya ..Respondent The Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY S.A.No. 545/2010 JUDGMENT: The appellants herein are the defendants in OS No.437/2002 on the file of Principal Junior Civil Judge, Rajahmundry. They filed the present second appeal under Section 100 of the Code of Civil Procedure questioning the judgment and decree dt. 17-2-2010 passed in AS No.10/2008 by the District Judge, East Godavari, Rajahmundry, whereunder the learned Judge allowed the appeal setting aside the judgment and decree dt. 3-10-2007 passed in OS No.437/2002 dismissing the suit filed by the respondent- plaintiff herein and decreed the suit OS No.437/2002 granting declaration of title in respect of item No.1 of the plaint schedule property and also delivery of possession of the same property and further granting permanent injunction in respect of 2nd item of the plaint schedule property and further grating damages at the rate of Rs.150/- per month for the illegal occupation of the 1st item of the plaint schedule from 1998 in favour of the plaintiff. For the sake of convenience, the parties will be referred to as arrayed in the suit. The plaintiff filed the above suit for relief of declaration and for recovery of possession in respect of item No.1 of the plaint schedule and for permanent injunction restraining the defendants from interfering with his possession in respect of 2nd item of the plaint schedule property stating hat he has been residing in the 2nd item of the plaint schedule property since last 50 years. He got thee brothers, namely, Peda Sathyam, Atchanna and Subba Rao. Peda Satyam, who is unmarried and issueless, died about 40 years back and Atchanna died on 25-12-1992. Atchanna’s wife pre- deceased him without any issues. Subba Rao died about 38 years back without marriage. The plaintiff married the sister of the first defendant. On her death without any issues, he married Padmavathi in the year 1991 and through her he begot two daughters. The 1st item of the plaint schedule property belonged to Godi Satyam, who constructed a tiled house and lived therein till his death. After the death of Godi Satyam, the plaintiff and his brothers Atchanna and Subba Rao were in possession and enjoyment of the property and after the death of Atchanna and Subba Rao, the plaintiff took possession of the property exclusively and has been living there as its true owner by paying taxes to the Gram Panchayat. The first defendant who is the brother of the first wife of the plaintiff started living separately. After the death of first wife, the plaintiff married Padmavathi, in the year 1998 the first defendant highhandedly trespassed into the 1st item of the plaint schedule property and has been living along with his wife, the second respondent, who is also taking initiative in taking possession of the 1st item of the plaint schedule property and the defendants are liable to pay damages for illegal use and occupation of 1st item of the plaint schedule. The first defendant filed the written statement, which was adopted by the second defendant, stating that the first defendant is the only son of the plaintiff, who mentioned wrong surname of the defendants as Arugula instead of Godi. The plaintiff and his wife Lakshmi @ Lakshmamma who have no children adopted the first defendant in the year 1965 from the natural parents of the first defendant, by name, Arugula Subba Rao and Lakshmamma. Thereafter, the first defendant lived as the adopted son of the plaintiff and his wife in the name and style of Godi Pandu. The plaintiff and his wife performed the marriage of the first defendant with the second defendant and they lived happily till the death of Lakshmi, who is the sister of the first defendant and first wife of the plaintiff. The plaintiff who developed illicit intimacy with one Padmavathi neglected the first defendant and his family. As there were disputes between the plaintiff and the defendants, the plaintiff started residing in one portion of the 2nd item of the plaint schedule and the defendants started residing in the other portion of the same item. The plaintiff requested the natural parents of the first defendant to execute a registered adoption deed in favour of himself and his wife and accordingly they executed the adoption deed on 7-3-1990 vide document No.104/90. The brother of the plaintiff ie., Atchanna happened to be the absolute owner of the 1st item of the plaint schedule property and the plaintiff happened to be the absolute owner of the 2nd item of the plain schedule property. They took possession of Government poramboke land several years ago and they constructed their respective houses individually but the taxes for the 1st item were being paid in the name of late China Satyam by virtue of a wrong entry made at the instance of the plaintiff in the relevant revenue records. Atchanna gifted the 1st item of the plaint schedule property orally in favour of the first defendant which was accepted by him in the presence of the plaintiff and others. He also got a right in the 2nd item of the plaint schedule property an he spent his amount for that property and because of the disputes, the plaintiff filed the above suit and they pray to dismiss the suit. On the pleadings of the parties, the trial court framed the following issues: 1. Whether the plaintiff is entitled for the declaration that he is the absolute owner of the schedule property? 2. Whether the plaintiff is entitled for recovery of vacant possession of item No.2 of the schedule property after evicting the defendants therefrom? 3. Whether the plaintiff is entitled for the permanent injunction with respect to item No.2 of the schedule property as prayed for? 4. Whether the plaintiff is entitled for damages as prayed for? 5. To what relief? On filing rejoinder by the plaintiff, the trial court framed the following additional issues: 1. Whether the plaintiff took 1st defendant in adoption under the registered adoption deed dt. 7-3-1990 as contended by D-1 in his written statement? 2. Whether Padmavathi is legally married wife of plaintiff as contended by him in his rejoinder? On behalf of the plaintiff, P.W.1 was examined and marked Exs-1 and A-2. On behalf of the defendants, D.W.1 to 4 were examined and Exs.B-1 to B-4 were marked. Learned trial court upon considering the evidence adduced by the parties dismissed the suit holding that there is no evidence to the effect that the 1st item of the plaint schedule property happened to be the property of Godi Satyam and there is no evidence to show as to how the plaintiff acquired rights over the property and the plaintiff is not entitled to any declaration and for recovery of possession in respect of 1st item of the plaint schedule property and is also not entitled to the relief of permanent injunction in respect of 2nd item of the plaint schedule. On filing further appeal, the lower appellate court, framed the following points to be determined in the appeal: 1. Whether the defendants placed sufficient evidence to the effect that the 1st of them happened to be the adopted son of the plaintiff and his wife? 2. Whether the plaintiff placed sufficient evidence to the effect that he happened to be the absolute owner of the items 1 and 2 of the plaint schedule properties? 3. Whether the plaintiff is entitled to the relief of declaration of title and possession in respect of the 1st item of the plaint schedule property and permanent injunction in respect of the 2nd item of the plaint schedule property? 4. Whether the plaintiff is entitled for damages as prayed for? 5. Whether the lower court considered the matter properly an arrived at correct conclusion and whether the judgment and decree passed by the lower court are sustainable or not? The lower appellate court, on re-appreciation of the evidence made available on record, allowed the appeal, holding that the first defendant happened to be the adopted son of the plaintiff and his wife Lakshmi stating Exs.B-1 to B-3 coupled with the evidence of D.Ws.2 ,3 and 4 prove that when the first defendant was aged 3 years, his natural parents gave him in adoption to the plaintiff and prior to the marriage of D-1 with D- 2, adoption deed was executed and registered. The evidence of plaintiff clearly establishes that the property originally belonged to his father, which fact has not been disputed by the defendants. Later Godi Satyam, one of the brothers of the plaintiff became the owner of the property, whereas he (Godi Satyam) and the other brothers of the plaintiff died without issues and without any legal heirs of their own. The said evidence would clearly prove that the plaintiff succeeded to the property as second class legal heir to Godi Satyam unless it is proved that Atchanna became the owner of the property and he orally gifted the property to the defendant No.1. But there is no satisfactory evidence placed before the court by the defendant No.1 to prove that Atcanna gifted the property to him. A-1 and A-2 are tax receipts in respect of the1st item of the plaint schedule. They establish that the property was assessed in the name of Godi Satyam. Even though no tax receipts in the name of the plaintiff are filed, and in the absence of satisfactory evidence placed by the defendants, it is to be held basing on the evidence adduced by the plaintiff, the plaintiff is deemed to be the absolute owner of the property and also deemed to be the person who is entitled to be in the possession of the property. In the cross-examination, it was suggested to P.W.1 that Atchanna lived in his portion till his death and he used to cook food for himself. Whereas P.W.1 stated that the first defendant occupied the 1st item of the plaint schedule property in the year 1998. With regard to ownership and possession of the 2nd item of the plaint schedule, according to the plaintiff, he happened to be the absolute owner and possessor of that property but he has not given as to how he became the owner of that property. From the evidence of P.W.1 and Exs.A-1 and A-2, it is clear that the plaintiff has been in possession and enjoyment of the 2nd item of the plaint schedule property without any dispute, but the defendants have not placed any evidence that they got right over the property. Once the plaintiff adopted the first defendant, he can claim a right in the ancestral property succeeded by the plaintiff. But the plaintiff succeeded to the property of Godi Satyam as second class heir, therefore, the defendants cannot claim any right over the plaint schedule property. In view of the same, the lower appellate court rightly allowed the appeal setting aside the judgment and decree and decreed the suit, which does not give rise any substantial question of law to be decided in the second appeal. The Second Appeal is accordingly dismissed. No costs. ___________________ A. GOPAL REDDY, J Date:16-7-2010 kmr