THE HON'BLE MR JUSTICE K.C.BHANU SECOND APPEAL No.773 of 2011 JUDGMENT 1. This second appeal is directed against the judgment and decree, dated 27-01-2009 passed in A.S.No.23 of 2006 by the VI Additional District Judge, Visakhapatnam, whereby and whereunder the appeal filed by the appellant was dismissed confirming the judgment and decree, dated 02-12-2005, passed by the I Additional Senior Civil Judge, Visakhapatnam. 2. The appellant is the defendant and the respondent herein is the plaintiff in the suit. For the sake of convenience, the parties are referred to as they are arrayed before the trial court. 3. Plaintiff filed the suit stating as follows:- He is the elder of three other brothers including the defendant and they are all sons of late Pentayya. The plaintiff married in the year 1975. The plaintiff and G.Apparao purchased 1000 sq. yards of site with A/C Sheet house bearing Dr.No.33-70-4 in S.No.23/6 of Butchirajupalem under sale deed dated 4.8.1975 from the owner J.M.Das and others for a consideration of Rs.16,000/-. The plaintiff purchased the said site from out of his personal savings and monetary gifts received from friends and relations at the time of his marriage. Subsequently, A/C sheet was removed and the plaintiff and G.Appa Rao partitioned 1000 sq. yards of property under the partition deed dated 15.02.1980. The partition of the site was in court plots i.e. by dividing the site into four equal plots. Out of them, Plot Nos.2 and 3 shown in Blue Colour in the plan annexed to the partition deed, fell to the share of plaintiff while Plot Nos.1 and 4 shown in Red colour in the plan annexed to partition deed, fell to the share of G.Apparao and ever since the partition, they are in exclusive possession and enjoyment of their respective shares of property as absolute owners. The plaintiff having obtained approval of the building plan in B.A.No.51/87, dt.27-1-1987, constructed ground floor and first floor in Plot No.3 shown in the plan of partition deed, which is plaint A-schedule property. Plot No.2 shown in the plan of partition deed, which fell to the share of plaintiff, was sold by the plaintiff under sale deed, dated 29-5- 2000. Initially, the plaintiff with his family was residing in the ground floor of plaint A-schedule building and permitted the defendant to reside in the first floor of the same building, without payment of rent, and the plaintiff has been paying tax for plaint A-schedule property and he also got two electrical connections for ground and first floor of the building. While so, in the year 1993, the defendant gave declaration to the Municipality and got his name included in the municipal record along with the name of plaintiff, without the knowledge of the plaintiff. Having come to know the said fact, the plaintiff got deleted the name of the defendant from the municipal records. Thus, the plaintiff is the absolute owner of the entire plaint A-schedule property and that the defendant has no right over the same. On the advice of elders, the plaintiff shifted his family to the first floor and permitted the defendant to stay in the ground floor of the plaint A- schedule building. Surprisingly, the plaintiff received copy of Caveat petition filed by defendant in November, 2000 alleging that Dr.G.B.Naidu, who is the maternal uncle of both the parties, purchased 1000 Sq. yards with his funds along with G.Apparao and got the sale deed in the name of plaintiff and G.Apparao and after partition, Dr.G.B.Naidu constructed double storied building in plaint A-schedule property and that the plaintiff is trying to dispose of the same, without the consent of the defendant and that the defendant is having half share in the property. The said contention of defendant is false and it is invented to grab the property of the plaintiff. The plaintiff got issued legal notice dated 02.12.2000 to the defendant, which was returned. Again, the plaintiff got issued another notice dated 17-1-2001 and the same was received by the defendant on 1- 2-2001, for which, he sent reply dated 9-2-2001 and it was received on 12.2.2001, where under the defendant reiterated the above false contention. Hence, the suit. 4. The defendant filed written statement stating as follows:- He is younger brother of the plaintiff, and all their four brothers are sons of late Pentayya. But, the plaint allegations that the plaintiff has invested his personal savings and received monetary gifts at the time of his marriage and purchased half share in 1000 sq.yards along with G.Apparao, that the plaintiff constructed plaint A-schedule building with his money, that the plaintiff has permitted the defendant to stay initially in the first floor of the building and subsequently permitted him in the ground floor of the building, that the plaintiff is the independent and absolute owner of the plaint A-schedule property, that the defendant made false contentions in the Caveat and reply notice are all not correct, hence they are denied. Dr.G.B.Naidu, who was the maternal uncle of plaintiff and defendant, purchased 1000 sq. yards of site with his funds along with one G.Apparao under the sale deed dated 4.8-1975 in the name of the plaintiff, as he was eldest in the family and all other brothers are minors, and thereafter Dr.G.B.Naidu partitioned the property under partition deed dated 15.2.1980, in which Plot Nos.2 and 3 fell to the share of the plaintiff, whereas Plot Nos.1 and 4 fell to the share of Apparao. Thereafter, the plaintiff obtained permission from Visakhapatnam Municipal Corporation and constructed plaint A-schedule building with the funds of Dr.G.B.Naidu. The defendant and plaintiff paid tax for the building jointly. The plaintiff had no income to purchase the site and construct plaint A- schedule building. The plaintiff with an ulterior motive to make unlawful gain suppressed the above true facts. The defendant filed original suit No.3261 of 2000 on the file of Principal Junior Civil Judge, Visakhapatnam against the Municipal Corporation to include his name in the municipal records in respect of the suit building. The defendant is residing in the ground floor, but not with the permission of the plaintiff. The defendant filed Caveat in the year 1999 and also issued Public Notice in Eenadu on 8.8.2000 revealing the above facts and his share in the plaint A-schedule property, for which there is no response from the plaintiff. Plaintiff sold plot No.2 to one Y.Leela Krishan Veni and in turn she sold away the same to one N.T.Raju. The defendant gave notices to them on 14.10.2010, for which there was no response. The defendant is having half share in the entire plaint A-schedule property. The defendant issued reply notice to the plaintiff stating the above contents. The defendant even otherwise perfected his title to the plaint schedule property by adverse possession, as he is in occupation of the same for more than 13 years to the knowledge of the plaintiff, hence the suit claim is barred by limitation and the same is liable to be dismissed with costs. 5. On the above pleadings, the following issues are settled for trial: 1. Whether the plaintiff is entitled for relief of declaration that his is the owner of plaint A-schedule property? 2. Whether the plaintiff is entitled to the relief of recovery of vacant possession of B-schedule property? 3. Whether the plaintiff is entitled for future mesne profits from the date of suit till the date of realization? 4. Whether the defendant has perfected his title over the suit property ad the present suit is barred by limitation? 5. To what relief? 6. During trial, PWs.1 and 2 were examined and Exs.A1 to A18 were marked, on behalf of the plaintiff and Dws.1 and 2 were examined and no documents were marked, on behalf of the defendant. 7. The trial court, after considering the oral and documentary evidence, decreed the suit with costs, vide judgment and decree, dated 02-12-2005. Challenging the same, the appellant filed A.S.No.23 of 2006 on the file of the VI Additional District Judge, Visakhapatnam. The lower appellate court, after reappraisal of the entire oral and documentary evidence, dismissed the appeal confirming the judgment of the trial Court. Aggrieved thereby, the present Second Appeal is filed. 8. Learned counsel appearing for the appellant/defendant contended that the defendant perfected his title in respect of the property in question by adverse possession and therefore, the judgment of the first appellate court is unsustainable and the same is liable to be set aside. 9. In view of amendment to Section 100 CPC filing of Second Appeal is not automatic and the appellant has to raise substantial question of law. If both the courts gave perverse finding or findings are not based upon admissible evidence, or inadmissible evidence has been taken into consideration, or on some of the instances where the Second Appeal can be admitted. 10. The first contention of the defendant is that he perfected his title to the suit schedule property by adverse possession. According to him, he is in possession and enjoyment of the ground floor portion i.e., plaint-B schedule property for more than 13 years to the knowledge of the plaintiff. While claiming adverse possession, he also stated that one Dr.G.B.Naidu originally purchased the suit schedule property in the name of the plaintiff and, therefore, Dr.G.B.Naidu is the real owner of the property. In the instant case, Dr.G.B.Naidu was not examined to establish that the property was purchased in the name of the plaintiff. Therefore, having taken a plea that he has got a half share in the property, the defendant cannot turn around to claim that he perfected the title by adverse possession. Even for adverse possession also, it must be established that he is in continuous possession of the property in question to the knowledge of the true owner including the plaintiff. The defendant has not filed any single document to show that he was in continuous possession of the property in question for over 12 years. Therefore, the defendant failed to establish the plea of adverse possession. 11. In so far as the title of the plaintiff is concerned, the plaintiff and G.Apparao jointly purchased 1000 sq. yards of open site under Ex.A-1- sale deed, dated 04-08-1975 for a consideration of Rs.16,000/- and thereafter the property was partitioned among them vide partition deed, dated 12-02-1980, in which plot Nos.2 and 3 shown in blue colour in the plan affixed to the partition deed fell to the share of the plaintiff while Plot Nos.1 and 4 shown in red colour in the plan annexed to the partition deed fell to the share of G.Appa Rao. Thereafter, the plaintiff obtained approval from Visakhapatnam Municipal Corporation for construction of two storied building in plot No.3, which is plaint-A schedule property, and later he sold away plot No.2 under a registered sale deed dated 29.05.2000. PW.1 has categorically stated how he got the property under a sale deed and how he was paying municipal tax. Practically, the evidence of PW.1 remained unchallenged. The genuineness of Exs.A1 to A18 and contents thereof are not denied or disputed in the cross-examination of PW.1. Therefore, the contents of Exs.A1 to A18 can safely be taken as evidence. 12. Taking into consideration of the oral and documentary evidence, the trial Court rightly decreed the suit holding that the plaintiff is the absolute owner of the property in question and therefore, he is entitled to ask for eviction of the defendant therefrom. The lower appellate Court also on re-appreciation of oral and documentary evidence available on record, confirmed the findings of the trial Court. The appreciation of evidence by the Courts below is not shown either adverse or contrary to law. In view of the concurrent findings of both the Courts below, I do not see any question of law, much less substantial questions of law that arises for consideration in this second appeal. The appeal is devoid of any merits and is liable to be dismissed. 13. Accordingly, the Second Appeal is dismissed at the admission stage. There shall be no order as to costs. ___________ 20-08-2011 Prv