B. Eashwaraiah Died Per Lrs vs J. Anandham
2022 Latest Caselaw 4740 Tel

HON'BLE SMT.JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.290 of 2011

JUDGMENT:

The present Second Appeal is arising out of the judgment

and decree in A.S.No.159 of 2008 dated 10.12.2010 on the file of

III Additional District and Sessions Judge (FTC), Ranga Reddy

District.

2. For the sake of convenience, the parties shall be arrayed as in

the suit. The appellants are the defendants.

3. The original suit is filed by the plaintiff against the

defendants for declaration of title, recovery of possession and for

mandatory injunction in respect of the suit schedule property.

4. The brief facts of the case of the plaintiff is that the plaintiff

is the absolute owner of the suit schedule property and was in

possession and enjoyment of it. The 1st defendant also purchased a

plot bearing No.108 on the Eastern side of the suit schedule

property admeasuring 250 sq.yards in the same survey number i.e.,

Sy.No.200 vide registered sale deed dated 29.07.1994 from his

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vendor namely Vinod Kumar. The contents of the plaint further

disclose that the 1st defendant encroached part of the plaint

schedule property of about 100 sq.yards with a dimension of about

15' width and 60' feet length towards the Eastern side of the

plaintiff's plot, which was noticed by the plaintiff on 16.04.2000.

When the plaintiff enquired about the encroachment, the defendant

denied the said act. The plaintiff got issued legal notice dated

04.05.2000 and also complained about the said encroachment to

Survey of India, where, they worked. Further, the plaintiff issued

another notice directing the defendants to re-deliver the suit

schedule land and also to demolish the unauthorized constructions

and later filed the suit for the relief of declaration of title, recovery

of possession and also for mandatory injunction.

5. A detailed written statement was filed by the 1st defendant

admitting about the purchase of the suit schedule property by the

plaintiff as well as by him and also about enjoyment of the property

and denied encroachment made by him.

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6. Basing on the pleadings, the trial Court has framed the

following issues:

"1. Whether the plaintiff is the absolute owner of 300 sq.yards of land in Plot No.108-A situated at Boduppal Village, Uppal Mandal, R.R.District ?

2. Whether the defendant encroach 100 sq.yards of land out of the suit schedule property ?

3. Whether the defendants made construction illegally by encroaching into the plot of the plaintiff ?

4. Whether the plaintiff is entitled for the relief of declaration and for injunction and for recovery of possession as prayed for ?

5. To what relief ?"

7. During the course of trial, on behalf of plaintiff, PWs.1 to 3

were examined and Exs.A-1 to A-25 were marked. On behalf of

defendants, DWs.1 and 2 were examined and Exs.B-1 and B-2

were marked.

8. The trial Court after considering the entire oral and

documentary evidence on record, decreed the suit with a finding

that the plaintiff is the absolute owner of the plaint schedule

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property and is entitled for recovery of possession of plot

admeasuring about 15' width x 60' length shown in the sketch filed

along with the plaint, from the defendants and further directed to

remove the illegal constructions made in the plaint schedule

property by the defendants within three months from the date of

decree and to deliver vacant possession of the suit schedule

property to the plaintiff, failing which, the plaintiff would be

entitled to obtain recovery of possession of plaint schedule property

and to get removed the illegal constructions thereon through due

process of law, in which event, the defendants are liable to pay the

expenses.

9. Being aggrieved by the same, the defendants have preferred

an Appeal vide A.S.No.159 of 2008 on the file of III Additional

District and Sessions Judge (FTC), Ranga Reddy District.

10. The Appellate Court, after hearing the rival contentions and

arguments, has framed the following points for determination.

"1. Whether the defendant encroached 100 sq.yards of property of the plaintiff shown in the plaint schedule ?

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2. Whether the plaintiff is entitled for declaration of his title to the plaintiff schedule property and for recovery of possession of the same ?

3. Whether the judgment and decree of the lower court is sustainable ?

4. To what relief ?"

11. Considering the material available before the 1st Appellate

Court and of the submissions made by both the parties, the 1st

Appellate Court dismissed the Appeal with a finding that the

plaintiff is entitled for the relief as prayed for in the suit.

12. As already stated supra, this Second Appeal is preferred by

the defendants being aggrieved by the concurrent findings of both

the Courts below and raised the following substantial questions of

law:

"(a)Whether both the courts below failed to formulate the proper issues for determination as to whether the suit is maintainable on the ground of non joinder of proper and necessary parties to the suit U/Order 1 rule 10 R/w Order 41 Rule 31(a) of CPC when the suit property was sold while the matter is sub judice?

(b) Whether the Advocate Commissioner appointed by trial Court proceeded beyond the scope of the warrant and subject matter of the suit when same

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was not marked as exhibit in the "C" series and more so Advocate Commissioner did not enter the witness box?

(c) Whether the Advocate Commissioner is empowered to go beyond the scope of the warrant which indicated only to note down the physical features of the suit property and nothing beyond that and relying upon such report by the trial court and decreed the suit of plaintiff and more so when it is not observed by the Advocate Commissioner that defendants are in possession of their land as per the Ex.A3.

(d) Whether the open space shown the eastern side of 108/A belongs to the Appellants/defendants or is it part of the 40 feet road existing as per the layout on the eastern side of 108/A and why the Advocate Commissioner did not mention width of the roads which could have answered the issues No.2 and 3.

(e) Whether the Advocate Commissioner is competent to measure the suit property without taking the assistance of the Mandal Surveyor and in the absence F.M.B. (Field Measurement Book) and also without identifying the survey number 200 situated at Boduppal Village, Uppal Mandal, R.R.District in violating section 10(1) of AP Survey & Boundaries Act, 1923.

(f) Whether both the courts below acted beyond the scope of jurisdiction, when the suit was filed for receovery of allegedly encroachment of the suit property when the land Grabbing Court has been constituted for adjudicating such disputes under AP Land Grabbing Act?

GAC,J S.A.No.290 of 2011

(g) Whether both the courts below ought to have considered Ex.B2, the memo issued by District Panchayat Officer to grant the permission for construction of the Building inspite of the complaints lodged by the plaintiff and the permission granted by the Gram Panchayat which is marked as Exhibit.

(h) Whether the Courts below can rely upon the evidence of a person who is not shown as witnesses in the index."

13. Heard the learned counsel for the appellants and the learned

counsel for the respondent. Perused the record.

14. It is the specific contention of Sri P.B.Vijay Kumar, learned

Senior counsel for the appellants that the trial Court and the 1st

Appellate Court did not consider the objections filed by them

against the Advocate Commissioner's report, however, without

considering such objections, the trial Court has come to an

erroneous conclusion that the plaintiff is entitled for the relief

sought for. Therefore, prayed to set aside the judgment and decree

of the trial Court as well as the 1st Appellate Court.

15. It is further contended by the learned counsel for the

appellants that if the measurements are properly made as to the

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extents of the lands of plaintiff as well as the defendants, the real

fact would be that there would be only excess of 11 sq.yards in the

land of the defendants, therefore, it is not known as to how 100

sq.yards would be encroached upon by the defendants as alleged by

the plaintiff.

16. The point that arises for consideration in this Second Appeal

is:

"Whether both the courts have erred in granting mandatory injunction, declaration of title and recovery of possession in favour of the plaintiff ?"

17. The substantial questions of law raised by the appellants is

that non-joinder of proper and necessary parties under Order 1 Rule

10 read with Rules 41 and 31(a) of CPC is fatal to the case of the

palitniff when the suit property was sold pending disposal of the

trial. Order 1 Rule 10 of CPC speaks of the parties who are

necessary to the suit subject matter. Order 41 Rule 31(a) stipulates

that the judgment of the trial Court shall be in writing and shall

state the points for determination. Admittedly, the Appellate Court

already framed a point for determination. As such, substantial

questions of law, as raised by the appellants is not tenable in the

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eye of law. Moreover, it is the contention of the appellants that the

property has been sold by the plaintiff to the 3rd parties and

therefore, they are proper and necessary parties to the suit. As per

Order 1 Rule 10 of CPC, any party can file a petition before the

Court to implead the persons who are necessary to the suit.

Admittedly, it is the suit of the plaintiff which is sought for

declaration of title as well as recovery of possession and for

mandatory injunction for removal of illegal constructions alleged to

have been made by the defendants in the encroached area. During

the course of trial, it is the plaintiff who has sold the part of his

property which does not form part of the suit schedule property.

Therefore, there is no necessity for the plaintiff to implead

subsequent purchasers of the property of the plaintiff. If at all, the

defendants have any grievance, they could have impleaded the

subsequent purchasers in the suit, which was not done. Therefore,

the questions of law raised by the appellants cannot be considered

as substantial questions of law.

18. The other contention which was raised by the defendants is

that the Advocate Commissioner appointed by the trial court

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proceeded beyond the scope of the warrant and he has not been

examined before the Court.

19. Admittedly, during the course of trial, an Advocate

Commissioner was appointed and he filed a detailed report before

the Court along with enclosures which formed part of the record. It

is also the contention of the counsel for the appellants that

objections were also filed before the Court as to the

Commissioner's report. Subsequent to the Commissioner's report

only, witnesses were examined before the Court. If at all, the

objections are to be come on record, it is for the defendant to cross-

examine the Advocate Commissioner before the trial Court. But,

no efforts were made by the defendants' counsel to disprove the

contents of the Advocate Commissioner's report. In the absence of

such efforts, the trial Court has passed the decree in favor of the

plaintiff. Even during the course of appeal, the defendants did not

file any application under Order 41 Rule 27 of CPC for recording

additional evidence. In the absence of pleadings of the parties, the

Appellate Court has also confirmed the judgment of the trial Court

basing on the material available before it. Though it is the

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contention of the appellants that the Advocate Commissioner has

shown the land of the defendants as 261 sq.yards and the land of

the plaintiff as 300 sq.yards, and if 200 sq.yards has been sold,

there should remain only 100 sq.yards. But the said contention

cannot be accepted because the sale deed is dated 14.11.2005,

which is subsequent to the Advocate Commissioner's report which

cannot be considered at all. As both the Courts have given

concurrent findings as to the fact in issue is concerned, there is no

substantial question of law involved in this Second Appeal, and it

deserves to be dismissed.

20. In view of the above discussion, this Second Appeal is

dismissed as devoid of merits. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY,J 20.09.2022 dv