IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE TWENTYSECOND DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 518 OF 1999. Between: Thippanna Penchalaiah … Appellant-Plaintiff V/s. Chema Chennaiah (died & abated) & Anr. … Respondents- Defendants Counsel for the Appellant: Sri M.R. Reddi Counsel for the Respondents: Sri L.J. Veera Reddy The Court made the following : Judgment follows 2nd page THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 518 OF 1999 JUDGMENT : This second appeal is filed against the judgment and decree dated 21-1-1999 passed in AS.No. 35 of 1996 by the Senior Civil Judge, Rajampet, Kadapa district, reversing the judgment and decree dated 09-12-1994 passed in OS.No. 382 of 1987 by the District Munsif, Rajampet, whereby and whereunder the suit filed by the plaintiff against the defendants was decreed with costs granting permanent injunction restraining the second defendant and his men from interfering with the peaceful possession and enjoyment over the suit schedule property and the suit against defendant No.1 was abated as he died pendentelite. 2. The plaintiff, who filed the suit before the trial court is the appellant in the second appellant. I have heard the learned counsel appearing for the appellant and none appears for the respondents. 3. The appellant filed the suit seeking relief of permanent injunction against the first defendant initially in respect of land of an extent of Ac:3-94 cents in survey No.489 of Gollapalli village of Kadapa district. According to the appellant, the land was assigned to him under D.K.T. Patta 496/86 in the year 1977 and he has been in peaceful possession and enjoyment since the date of assignment and that he filed the suit when the first defendant tried to interfere with his possession and enjoyment over the property. It was the contention of the defendants as could be seen from the written statement filed by them that the land of an extent of Ac:3-94 cents is sub-divided by the Revenue Department in the year 1982 and Ac:2- 89 cents was demarcated as S.No.489/1 and a D.K.T.Patta was granted in favour of second defendant in resp4ect of an extent of Ac:2-89 cents of land and a passbook was also issued in the name of the second defendant. According to them, they have been in possession and enjoyment of an extent of Ac: 2-89 cents since the date of assignment in the year 1982. So far as the said extent is concerned, the appellant have no right and have not given possession of the same. Before the trial Court, the plaintiff examined himself as PW-1 and marked Exs.A-1 to A-5. Exs.A-1, A-4 and A-5 are land revenue receipts and Ex.A2 certified copy of No.2 adangal for 1295 Fasli. Ex.A3 is the certified copy of No.13 (1) account. On behalf of defendants, DWs.1 to 3 were examined. DW-3 is the second defendant and she is the wife of the first defendant. The defendants got marked Ex.B-1 DKT Patta No.18/1392 and Ex.B-2 Pattedar Passbook. 4. After filing of the suit, defendant No.1 died and defendant No.2 was brought on record as his legal representative. The learned trial Court having noticed that as per Ex.A3 certified copy of No.13 (1) Account the land in an extent of Ac:3-94 cents was assigned to the appellant and in the said document in column No.8, DKT 496/1 is also mentioned. The other document namely the copies of No.2 adangal and land revenue receipts also reveal that the plaintiff has been in possession and enjoyment of the entire extent of Ac:3-94 cents of land. According to him, he was unable to produce the original DKT patta as it was burnt in the fire accident. 5. The second defendant, who was examined as DW-3 pleaded ignorance before the trial Court that she did not know as to how Ex.A-1 came into existence. She further stated that she made an application to the Mandal Revenue Officer to conduct enquiry. DW-3 also admitted in the cross-examination that the plaintiff raised the crop in the schedule mentioned land in a particular year. Under Ex.B- 1 DKT Patta , it is mentioned that the date of assignment was on 28- 9-83 but in the written statement filed by the defendants, the date was mentioned as 28-9-82. It is mentioned in Ex.B-2 that survey No.489 was sub-divided and DKT patta was granted in favour of the plaintiff in respect of Ac:2-89 cents. It was rightly observed by the learned District Munsif that as per 13 (1) account filed by the plaintiff and Ex.A2 the certified copy of adangal, the land in an extent of Ac:3-94 cents was not sub-divided in the year 1985 and thus rightly disbelieved the version of the defendants and that the land was sub- divided and part of the land was assigned to the plaintiff. 6. Further during the course of trial, the defendants were unable to produce Exs.B-1 and B-2 and the evidence was closed and in the appeal filed there against the appellate court remanded the matter and suddenly the defendants produced Exs.B2 and B3 and the defendants failed to explain as to how the second defendant came into possession of Exs.B-1 and B-2 and thus the learned trial Court has rightly doubted the genuineness of Exs.B-1 and B-2 documents. The learned trial Court has taken into consideration the admission made by DW-1 that the plaintiff was in possession and enjoyment of the schedule property by raising paddy crop and whenever they had cut paddy crop they were taken to the police station. Therefore, the learned trial Court rightly held that the schedule mentioned land was in possession and enjoyment of the plaintiff. Basing on the documents filed by the plaintiff, the learned trial Court recorded a finding that the land was not sub-divided at any point of time. Considering all these factors, the learned trial court decreed the suit filed by the appellants as prayed for and granted decree of permanent injunction in favour of the plaintiff and against the defendants. 7. In A.S.No. 35 of 1996, which was filed by the defendants against the judgment and decree in OS.No.382 of 1987 passed by the District Munsif, Rajampet, the learned first appellate court reversed the well reasoned judgment solely on the ground that the plaintiff could not be able to produce D.K.T. patta granted in his favour. In view of the evidence forthcoming in this case, which is referred in the foregoing paragraphs, there is evidence indicating that the entire schedule land was assigned to the plaintiff under DKT patta. Without cancelling the said D.K.T. Patta it is not possible for the Mandal Revenue Officer to get the land demarcated and grant DKT patta in favour of defendant No.2 for part of the land. Even if there is any such assignment, the assignment is illegal. Further no evidence was adduced by the defendants to show that the land was in fact sub- divided and demarcated and DKT patta was issued in token of D2. The learned first appellate court without assigning any convincing reasons reversed the finding of the learned trial Court. The said findings are not based on evidence forthcoming in this case and also contrary to the Assignment Rules. The said findings being perverse, this Court can interfere with the said findings in the second appeal. 8. For the foregoing reasons, the judgment and decree passed by the first appellate court in AS.No.35 of 1996 is set aside and the judgment and decree passed in OS.No. 382 of 1987 by the District Munsif, Rajampet is confirmed. The second appeal therefore succeeds and is allowed. There shall be no order as to costs. _________________________ JUSTICE R. KANTHA RAO. 22-03-2011 I s L THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 518 OF 1999 Circulation No. Date:22-03-2011 Court Master: I s L Computer No.43