IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEENTH DAY OF FEBRUARY, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 119 OF 2001 BETWEEN: Mohd. Hussain (Mohd. Hashim) (Died) per LRs and others. …APPELLANTS AND N.Sale Venkatesham and others. …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 119 OF 2001 JUDGMENT: The plaintiff in O.S.No. 138 of 1991 on the file of the Senior Civil Judge, Mahaboobnagar, is the appellant herein. 2. The suit was filed for declaration of the suit schedule property, which is an extent of 770 square yards of land shown in Sy.Nos.778 or 778/A1 at Kalwakurthi village, is the property of the predecessors of the plaintiffs and required to declare that the plaintiffs are the owners of the property. 3. The allegations in the plaint goes to show that one Mohammed Hyder Ali was the owner of Acs.10.35 Gts., and Acs.1-02 Gts., of land in Survey Numbers 778/1 and 778/2 and he died in the year, 1966, leaving behind him the plaintiffs as his legal heirs. During the life time of Mohd. Hyder Ali, he donated Acs.01.02 Gts., of land to a Club. Thereafter, he was left with Acs.10.35 Gts. He divided the land into 33 plots and some of them are the rectangular plots and on the northern side the four plots are of length of 120x75 feet, which are plot Nos.30, 31, 32, and 33. At about an extent of 1000 square yards were Rectangular shape towards western side of plot Nos.29 and 30, which belongs to Hyder Ali, father of the 1st plaintiff. The 1st defendant purchased plot No.30, which is an extent of 1000 square yards and obtained permission from the Grampanchayat, Kalwakurthy and constructed a house in the year, 1961. The defendants also applied for permission to construct a compound wall including the suit area. Objections were raised by the plaintiffs with Grampanchayat , but the walls were constructed. The defendants without any manner of right, have occupied the western portion of plot No.30, which is the schedule property though purchased only 1000 square yards and therefore, their possession and enjoyment is unlawful and the plaintiffs are entitled for recovery of the possession of the same. 4. The defendants filed a written statement contending that the property was purchased with specified boundaries. The allegation that the plots are rectangular and some plots were left on the western side of plot No.30 and other plots is incorrect. The allegations that the defendants have unlawfully encroached the schedule property is also not correct. The constructions were made with permission from the Grampanchayat. The plot of the defendants is in a triangular shape and the compound wall was constructed for the entire area. The objections raised by the plaintiffs about the permission to construct compound wall have been rightly rejected by the Grampanchayat. The suit is not maintainable. Therefore, the defendants pleaded for dismissal of the suit. 5. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the plaintiff is entitled for declaration that the suit schedule land is part and parcel of Sy.No.778 or 778/1 situated in Kalwakurthy village, the plaintiffs are the owners and for recovery of possession of the same by evicting the defendants Nos. 1 and 2? 2) Whether the plaintiffs are entitled for direction, directing the defendant No.3 to delete the entry ‘Gramam’ in pattedar column of pahanies by inserting the names of the plaintiffs from Sy.No. 778/1 for the year 1984-85 and in the subsequent pahanies? 3) Whether the 3rd defendant is not a necessary party to the suit? 4) Whether the defendant No.1 purchased the plaint schedule land from plaintiff No.1 and father of plaintiff No.2 in the year, 1960 and constructed a house therein after obtaining necessary permission from the Grampanchayat? 5) Whether no open land is left in suit Sy.No.778/1 and construction of house ? 6) Whether the defendants No.1 and 2 are the owners of the suit land and are in possession of the same ever since 1st defendant purchased the same from the plaintiff No.1 and father of plaintiff No.2? 7) Whether the Court fee paid is not correct and the plaintiff under valued the suit property to evade Court fee? 8) To what relief? 6. On behalf of the plaintiffs PWs. 1 and 2 were examined and marked Exs.A-1 to A-13. On behalf of the defendants DWs.1 and 2 were examined and marked Exs.B-1 to B-33, Exs.X-1 and X-2 were also marked by the defendants. 7. After considering the evidence on record, the learned Senior Civil Judge, Mahaboobnagar, dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the plaintiffs are the owners of the schedule property? 2) Whether the plaintiffs are entitled for declaration and possession of the property? 3) Whether the judgment and decree passed by the learned Senior Civil Judge, Mahaboobnagar, is legal and sustainable? 9. POINTS: There is no dispute about the fact that late Hyder Ali was the owner of the property and he has divided the property into plots and sold them. It is also not in dispute that the defendants have purchased plot No.30. According to the case of the plaintiffs, as per the lay out plan, the measurements of the plot were specifically given and as per the sale document, the measurements are 120x75, which comes to about 1000 square yards and the defendants are not entitled for more than that extent. It is the further case that to the west of the property purchased by the defendants, the suit schedule property is located and there is no title conveyed to the defendants. Therefore, they are entitled for the declaration. 10. Evidently, the sale transaction in favour of the defendants is in the year, 1960 and permission was taken for construction of the building long time back and permission for construction of the compound was also taken and present suit was filed in the year, 1991. Evidently, Hyder Ali died in the year 1966, and for a period of nearly 30 years after the alleged sale in favour of the defendant No.1, no action was taken by the plaintiffs or their predecessor. 11. The question before the Court is whether there was any land left to the west of plot No.30 and whether Hyder Ali or the plaintiffs exercised their rights in the schedule property. The strength of the contention of the plaintiffs is based on the lay out plan, which is marked Ex.B-1 and as can be seen from this plan, no doubt measurements were given to plot No.30 as 120x75 square yards. It is also an admitted fact that as can be seen from this plan that on western side a road was shown and no open place belonging to the plaintiffs was shown. Therefore, from the lay out plan and also the description of the property sold, no boundaries were given and further- more, the extent was also not given in the sale deed, which is translation marked as Ex.A-12. Therefore, it is quite clear that the sale transaction, which is relied upon by the plaintiffs does not prescribe the extent. Therefore, the Court is left only with the lay out plan, which does not show the existence of any vacant site for the further west of plot No.30. In fact, similar rights said to have been executed under Exs.X-1 and X-2 and those documents also does not show the existence of road on the western side concerning plot No.14, which is marked as Ex.X-2. It is also does not disclose any boundaries. 12. Learned counsel for the appellant contends that as per the Registration Act, the description of the property is to be given and in the absence of it, the document cannot be registered. Evidently, in this case, what was sold is only a private sale agreement and not a registered document. He also relied on a decision reported in Somasundaram Mudaliar and others Vs K.S. Rajappa Mudaliar[1]. He also relied on a decision reported in 1979 Calcutta, wherein when there is a conflict between area and boundary, the description of boundary will prevail and not the area. This decision will not in any way advance the case of the plaintiff for the simple reason if the description of the boundary is to prevail, then naturally the boundary is shown as a road and as such, the measurements said to have been given for plot No.30 can have no relevance. There is also no material on record that the plaintiffs have been in possession of any other area after excluding the property sold to others under the lay out. Therefore, Ex.B-1 lay out plan clearly shows that plot No.30 abuts the road and there is no vacant space left over by the vendors. In view of the above circumstances, it cannot be pleaded that the plaintiffs or their predecessor have left over the schedule property, which belong to them. Evidently, the defendants have been in long possession and enjoyment of the property right from 1960 after they have purchased the same and abuts their house is constructed long time back and it is a clear case, where the defendants to the knowledge of the original owners have been in possession and enjoyment and at no point of time, the original owners have objected. Therefore, it has to be held that the claim of the plaintiffs for title to the schedule property is not established and the specific case that an extent of schedule property was left over in the lay out and the property sold to the defendants is only 1000 square yards cannot be accepted. Lower Court has rightly rejected the claim of the plaintiffs and the suit was filed several years after the alienation and continuous possession and enjoyment of property by the defendants and there are no merits in the case. Therefore, the points are answered accordingly. 13. In the result, the appeal is dismissed. There shall be no order as to costs. Date: 14-02-2011. ________________________ N.R.L.NAGESWARA RAO,J INL THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 119 OF 2001 14th February, 2011 INL [1] AIR 1927 Madras 369