THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.2148 OF 2002 JUDGMENT: The plaintiffs in O.S.No.16 of 1997 on the file of the Court of Senior Civil Judge, Karimnagar are the appellants herein. The suit was filed for declaration of title with regard to suit schedule property, which is an extent of Ac.0.26 guntas with a house in Sy.No.903 at Mukarampura locality of Karimanagar. The allegations in the plaint goes to show that the suit schedule property was purchased by late Satyanandam, father-in-law of the first plaintiff and grand father of the plaintiffs 2 to 6 from the Church authorities with his own money and he has declared that late M.S.C.Purnandam who is the son and husband of the first plaintiff and father of plaintiffs 2 to 6 alone shall succeed to the property. Accordingly, the plaintiffs have succeeded to the property and have in enjoyment of the property. Their names have been recorded as owners and tax was collected by the municipality. The defendants have no right or interest in the property and in 1990 an attempt was made to interfere a suit O.S.No.892 of 1990 was filed and it was dismissed on 12-06-1995 for default. Hence the suit is filed for declaration of title and injunction. The defendants 1 and 2 filed a written statement denying the allegation that Satyanandam was the owner of the suit schedule property and that he has purchased the same from the Church authorities and allowed the same to be enjoyed by his son. The defendants also pleaded that the suit is not maintainable. It was further pleaded in the written statement as under:-- “Late Satyanandam purchased only plot C which is described in the sketch maintained by Church of South India authority and which was filed and marked as Exhibit in I.A.No.433 of 1990 in O.S.No.892 of 1990 on the file of the District Munsiff Karimnagar and the certified copy of which was already filed by the defendant herein along with counter in I.A.No.107 of 1997 filed in the present suit. Later Satyanandam got two daughters and son. The daughters are Devapala Esther and defendant No.1 and the son is Poornanadam. In fact the defendant No.1 herein invested entire amount for the construction of the house in plot C as shown in the sketch maintained by Church of South India in the name of late Satyanandam. That house is numbered as 2-8-56 (2-8-52 corresponding to Old No.2-8-31/1). The plot No.B shown in the said sketch was purchased by defendant No.1 herein on 2-9-65 from Church of South India authority. The extent of plot B is 8720 square feet. Tammadi Ashirvadam the husband of Devapala Esther elder daughter of late Satyanandam and the father of defendant No.2 wherein purchased plot No.A shown in the said sketch from the Church of South India authority on the same day i.e., on 2-9-1965. The certified copies of documents of sale of plots B and A and the sketch prepared by Church of South India authority were filed by the defendants along with the counter in I.A.No.107 of 1997 in the present suit. It may be mentioned that in the sketch prepared by Church of South India, the way is also shown to the plots D,C,B and A. It may also be mentioned that Plot No.D shown in the sketch was purchased by one Paul and the same was subsequently purchased by J.Chandrasekhar Rao. The allegations that late Satyanandam declared that Poornandam shall alone succeed to the suit property and that after the death of Poornandam the plaintiffs have become owners of the suit property are wrong and denied. As already stated late Satyanandam was the owner of only Plot No.C which was measuring only 8,600 square feet as per the sketch maintained by the Church of South India authority. The late Satyanandam has no right whatsoever in Plots “A” & B”. The plaintiffs will only succeed to 1/3rd share in Plot “C” as heirs and therefore pleaded for dismissal of the suit. On the basis of the pleadings, the following issues have been framed for trial. 1. Whether the plaintiffs are entitled for declaration that they are the owners of the suit property shown in schedule annexed to the plaint? 2. Whether the plaintiffs are entitled for perpetual injunction from interfering into the peaceful possession and enjoyment over the suit schedule house against the defendants? 3. Whether the suit is barred by res judicata? 4. To what relief? On behalf of the plaintiffs PWs.1 to 3 were examined and marked Exs.A-1 to A-8 and on behalf of the defendants DWs.1 and 2 are examined and marked Exs.B-1 to B-7. After considering the evidence on record, the learned Senior Civil Judge decreed the suit with regard to plot “C” as per the plan (Ex.B-3) to an extent of 955 square yards and also house thereon and granted injunction. Aggrieved by the said judgment, the present appeal is filed. The points that arise for consideration are:- 1. Whether the plaintiffs are entitled for the declaration prayed for? 2. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? 3. To what relief? POINTS: There is no dispute about the fact that Satyanandam has purchased some property from Church authorities and constructed a house thereon. The question for determination is whether Satyanandam has purchased Ac.0.26 guntas of land and constructed a house thereon or whether the deceased Satyanandam was the owner of plot No.C alone which was accepted by the lower court. Evidently, this being a suit for declaration of title and interest in immovable property, it is for the plaintiffs to prove that Satyanandam has purchased the total extent of Ac.0.26 guntas of land which was shown in the schedule. It is true that the lower court has also not accepted Exs.B-1 and B-2 which are said to be the plots “A” and “B” purchased by the defendants. But that by itself will not benefit the case of the plaintiffs. The plaintiffs have not filed any sale deeds to show that Satyanandam has purchased Ac.0.26 guntas of land. The lower court has taken the view that as Satyanandam has got three children, the property must have been divided into three plots and plots “A” & “B” were allotted to the first defendant and the mother of the second defendant and consequently they have got right over the said property. So also the lower court has also accepted that plot “C” was purchased by Satyanandam and the house was constructed by Satyanandam alone. The appreciation of the evidence made by the lower court clearly goes to show that the property was purchased by Satyanandam. Therefore, all the children will be entitled for share in the property and though the suit is confined for a declaration of title, the lower court found that plots “A” and “B” might have been given by Satyanandam to the defendant Nos.1 and 2 and the plaintiffs are entitled to plot “C” alone where the house exists. Therefore the approach of the lower court in considering the rival contentions when both parties have not filed documents of title to the property appears to be reasonable. The mere fact that earlier suit O.S.No.892 of 1990 was dismissed is of no ground to hold that the plaintiffs have no right in the property. Evidently, Ex.B-3 is said to be a plan which was proved by the evidence of Church authorities. Therefore, taking into consideration the evidence of DW.2 the lower court found that plots “A” & “B” were allotted by Satyanandam to defendant Nos.1 and 2. But what ever may be the stand taken by the defendants about the rights in the property and since the plaintiffs have failed to produce any documents showing exclusive right over Ac.0.26 guntas of land and the purchase of the same by Satyanandam, I do not find any infirmity in the judgment of the lower court since the burden is on the plaintiffs to prove the title and entitlement of the property. As rightly pleaded by the defendants also the conveyance of any rights in the immovable property could not have been done orally by Satyanandam but however the lower court taking into consideration the possession of plots “A” & “B” accepted the rights of the plaintiffs for plot No. “C” alone which appears to be equitable. Therefore, the judgment passed by the learned Senior Civil Judge does not call for any interference. Therefore, the suit is liable to be dismissed. Accordingly the points are answered. In the result, the Appeal Suit is dismissed without costs. _______________________ N.R.L.NAGESWARA RAO,J 06-06-2011 TSNR