Sri Bandlamudi Sambasiva Rao, vs Smt Ravela Durga Rani,
2022 Latest Caselaw 1792 AP

                           HIGH COURT OF ANDHRA PRADESH


MAIN CASE NO:       S.A.No.180 of 2022
                               PROCEEDING SHEET
Sl.N      Date                             ORDER                           OFFICE
 o.                                                                         NOTE




       13.04.2022 BSB, J
                                      I.A.No.1 of 2022

                       This petition is filed to dispense with the
                  filing of the certified copy of decree and
                  judgment dated 26.12.2014 in O.S.No.387 of
                  2011 on the file of the court of I Additional
                  Junior Civil Judge, Guntur.
                       The petition is allowed dispensing with
                  filing of the certified copy for the present.

                                                   _________________
                                                   B.S.BHANUMATHI,J

                                     S.A.No.180 of 2022

                      Heard the learned counsel for the appellant.
                      The    first    respondent   herein   filed   suit

O.S.No.387 of 2011 on the file of Court of I AJCJ, Guntur seeking permanent injunction in respect of plot Nos.40 and 41 as described in the schedule in respect of an extent of 340 square yards of site, whereas, the first defendant laid counter claim seeking declaration of title and consequential permanent injunction in respect of 173 square yards of site claiming that it relates to plot No.41 claimed by the plaintiff. The trial Court dismissed the suit for permanent injunction and allowed the counter claim. Having aggrieved by both findings, the plaintiff preferred the appeal A.S.No.69 of 2015 on the file of the court of V ADJ, Guntur. The appeal was partly allowed to the extent of setting aside the decree in the counter claim and dismissed the appeal upholding the decree dismissing the suit. Having aggrieved by the same, the first defendant preferred the second appeal before this Court on the following substantial questions of law.

1) Whether a single appeal AS 69 of 2015 is maintainable against the Judgment and decree passed in a suit for injunction filed by the plaintiff against which a counter claim was made by the defendant No.1 and a common Judgment was passed by the trail court dismissing the O.S. No.387 OF 2011 for injunction and decreeing the counter claim made by the appellant herein (defendant No.1 in O.S. No.387 of 2011)?

2) Whether the finding of the First appellate court that the appellant herein (defendant No.1 in O.S. No.387 of 2011) is not entitled to the declarationof title and consequential permanent injunction relating to Plot No.41 admeasuring 173. 3/9 Sq. yards in D.No.275 of Reddypalem Gram Panchayath purchased by him under a Registered sale deed dated 09.07.1985 inspite of holding that the respondent No.1 herein (Plaintiff in O.S. No.387 of 2011) is not the owner and possessor of 340 sq. yards comprising Plot No.40 and 41 in D.No.275 of Reddypalem Grama Panchay at (Survey No.327 is mentioned) under the sale deed dated 19.09.1985, the executants (owner) of both the sale deeds being one P.Ratna Reddy is sustainable under law?

3) Whether the finding of the First appellate court that in a suit for declaration, the burden of proof is always on him to establish his title is sustainable under Law, where there is a suit and a counter claim and common evidence was recorded, instead of preponderance of probability?

4) Whether the First appellate court failed to appreciate and scrutinize the evidence on record oral and documentary in proper perspective and came to a perverse and unsustainable conclusion, rejecting the counter claim of the appellant herein (1st dependant in the suit) and therefore, the Judgment and Decree dated 28.02.2022 passed by the 1st appellate court deserves to be set aside by this Hon'ble Court in the interests of Justice.

In view thereof, it is a fit case to admit the appeal.

ADMIT.

Notice to respondents.

Post on 04.05.2022.

Learned counsel for the appellant is permitted to take out personal service of notice to the respondents through RPAD and file proof thereof.

_________________ B.S.BHANUMATHI,J PNV I.A.No.2 of 2022

This petition is filed to suspend the judgment and decree dated 28.02.2022 passed in A.S.No.69 of 2015 by the V Additional District Court, Guntur.

Notice to respondents.

Post on 04.05.2022.

Learned counsel for the petitioner is permitted to take out personal service of notice to the respondents through RPAD and file proof thereof.

Till then, the first respondent shall maintain status quo.

_________________ B.S.BHANUMATHI,J PNV