K.Salini Devi vs Nuthakki Santhi
2023 Latest Caselaw 267 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                APPEAL SUIT No.328 of 2015

JUDGMENT:

This appeal is filed against the Judgment and Decree of

the trial Court in O.S.No.1195 of 2007 dated 10.03.2015.

2. One N.Santhi through her father as a registered G.P.A

Holder filed a suit in O.S.No.328 of 2015 to declare her as

owner and possessor of Plot No.4 admeasuring 400 Sq.yds

equivalent to 334.4 Sq.yds in Sy.No.155 situated at rest of the

area in block No.1 of Madeenaguda village, Serilingampally

Mandal, R.R.District. The defendants No.1 & 2 were the

absolute owners of the land bearing Sy.No.155 admeasuring 30

gts out of Ac.1 - 05 gts situated at Madeenaguda village,

Serilingampally Mandal, R.R.District and the same was divided

into House plots No.1 to 6 as per layout plan. The defendants

No.1 &2 through defendant No.3/G.P.A as per registered

G.P.A.No.1123/89 dated 02.09.1989 sold the plot No.4

admeasuring 400 Sq.yds to the defendant No.4 for valuable

consideration through registered sale deed bearing

Doc.No.2013/90 dated 12.02.1990.

3. The defendant No.4 was in peaceful possession and

enjoyment of the suit property and he sold the same to the

plaintiff for valuable sale consideration of Rs.3,60,000/-

through registered sale deed bearing No.10087/02 dated

19.11.2002 and he was assigned the identification No.1 as

1510-1-10087 for scanning. The plaintiff was in enjoyment and

peaceful possession from the date of purchase without any

interference, but on 08.11.2007 defendants No.5 to 8 came to

the suit site stating that they purchased the entire land from

defendants 1 & 2 through defendant No.3 on 12.07.1990, but

they failed to produce any document in support of their claim.

The defendants No.1 & 2 through defendant No.3 sold the entire

land covered by Plot Nos.1 to 5 as per layout including Plot No.4

of the suit schedule property to plaintiff much early to the date

of claim of the defendants No.5 to 8. As such question of selling

the same property to defendants No.5 to 8 does not arise and

they will not accrue any right over the property. Initially,

defendants No.1 & 2 through defendant No.3 sold the suit

schedule property to defendant No.4 under a valid document for

valuable consideration and he in turn sold the same to the

plaintiff, as such any sale deed executed in favour of defendants

5 to 8 is a sham document and it will not create any right and it

is illegal and improper, as such he filed suit for declaration.

4. In the written statement filed by defendants 5 to 8, they

contended that the defendants 1 and 2 were the owners of 30

guntas of land in Sy.No.155 of Madinaguda Village,

Serilingampally Mandal, R.R.District. They are not aware of the

sale deed executed by defendant No.3 in favour of defendant

No.4 through registered sale deed and also disputed the

possession of defendant No.4 and plaintiff in the said land. They

further stated that there is no layout for Sy.No.155 and the

entire land admeasuring 30 guntas was divided into plots 1 to 6

is false. The plaintiff has not filed the layout nor given the

dimensions of the plots. The suit schedule land cannot be

located on the ground as there are no boundaries existing on

ground as mentioned in the suit schedule. The total extent of

Sy.No.155 is Ac.1 - 06 gts. Defendants No.1 & 2 were the

owners of 30 guntas out of Acs.1 - 06 gts which was bounded

as follows:

North: Land of Balasaria South: Land of M.Sahrief East: Land of Sathaiah West: Sy.No.152

These defendants jointly purchased Ac.0 - 25 gts out of 30 gts

in Sy.No.155 through a registered sale deed vide Doc.No.8706 of

1990 dated 12.07.1990 from defendants No.1 & 2 and delivered

the possession of 25 guntas. From then onwards they are in

possession and enjoyment of the same. The boundaries existing

at the time of purchase was as follows:

North: Land belonging to Balasariah South: Land belonging to Moinuddin Sharief East: Neighbours property West: Neighbours property

The dimensions of 25 guntas possessed by these defendants are

on North: 245 feet; South: 212 feet; East:126 feet; West: 121

feet. As there is no approach road for this land, these

defendants purchased Plot No.7 admeasuring 343.6 Sq.yrds (in

Sy.No.152) in the joint layout of Sy.Nos.117, 151 and 152 of

Madinaguda Village, through a registered sale deed vide

Doc.No.15837 of 1990 dated 03.12.1990. The said plot is

located to the Northwest corner of 25 guntas purchased from

defendants No.1 to 3. Immediately after the purchase, they

constructed compound wall on all sides of 25 guntas and Plot

No.7 in Sy.No.152 and fixed a gate. They also constructed three

rooms for watchman. At present one Tatina Chitti is the

watchman and he is residing in these rooms. They also obtained

electricity connection vide Service No.11051-02113-ERO iii,

Kukatpalli and paying electricity charges regularly. The Mandal

Revenue Officer, Serilingampally Mandal sanctioned mutation

vide Proc.No.B/1161/2005 dated 28.11.2005 and their names

were recorded as pattadars and possessors in the pahanies.

Defendants declared the said land before the Urban Land

Ceiling Authorities, Hyderabad and obtained clearance from

them vide Lr.No.H2/2039/NOC/07 dated 24.01.2005.

5. Defendants further stated that there is no layout for

Sy.No.155 and the suit schedule plot cannot be identified on

ground. There are no plots on the Eastern and Western side nor

there is any road on the southern side to the plot. The plaintiff

has not stated that in which portion 25 guntas of suit schedule

plot is located. He was never in possession of any part of 25

guntas of land. Defendants since 1990 were in open and

continuous possession of the suit schedule land, which is

adverse to plaintiff and thus plaintiff lost title to the defendants

by virtue of adverse possession. Therefore, the suit is barred by

limitation and is not maintainable, the sale deed in favour of the

plaintiff is invalid and void and does not confer any title to the

plaintiff because the boundaries are imaginary and suit land

cannot be identified on ground. Therefore, plaintiff cannot be

declared as the owner of the suit plot and requested the Court

to dismiss the suit.

6. The G.P.A holder of plaintiff was examined as P.W.1 and

marked Exs.A1 to A8. He stated that there is no approved

layout for Sy.No.155. Ex.A3 is the un-authorized layout for

Sy.No.155. In Ex.A3 there is no mention about the name of the

owner of the land. The red and blue marked demarcation with

regard to Plot No.4 in Ex.A3 was done by him. He stated that

Ex.A3 is the layout supplied by vendor along with Ex.A2 sale

deed and noted No.4 in Ex.A3 for the sake of convenience. He

did not know who prepared Ex.A3. He stated that present

boundaries of Plot No.4, bounded by East - Plot No.5 belongs to

Prabhaker Goud, West - Plot No.3 belongs to D5 to D8, South

road and North open land and he is not aware of the owner of

the open land situated on northern side. He knows about the

purchase of 25 guntas of land by defendants 5 to 8 in Sy.No.155

and also knows that they constructed a compound wall around

the land. He further knows that there is no approach land to

Sy.No.155 to ingress and egress to 30 ft road. They purchased

Plot No.7 in Sy.No.152 in order to arrange their passage. He also

admitted that Ex.A6 and A7 either name of the plaintiff or name

of her vendor is shown as possessor in Plot No.4 of Sy.No.155.

7. Plaintiff also examined one Balaraj Goud as P.W.2 and he

stated that plaintiff purchased suit schedule property from one

Zaheera Rauf on 19.11.2002 through a registered sale deed vide

Doc.No.10087/2002 on the file of Sub-Registrar, Ranga Reddy

District. The defendants tried to interfere with the said land on

08.11.2007 and plaintiff resisted the same. In the

cross - examination he stated that he was doing Real Estate

business from the last 16 years. He was acquainted to P.W.1 for

the past 15 years, but he did not know the entire extent of land

in Sy.No.155 and he did not know the original owner of the land

in Sy.No.155. He also admitted that 25 guntas of land covered

with compound wall and further stated there are no plots

existing in Sy.No.155.

8. The defendant No.8 in the suit was examined as D.W.1

and marked Exs.B1 to B4 through him. He stated in his

cross - examination that under Exs.A6 and A7, the names of

defendants 1 and 2 are noted as pattadar and possessors. He

also stated that they have verified encumbrance certificate with

regard to the title of the property prior to their purchase. He

further admitted that in Ex.A5 his name is not mentioned.

Though he purchased Ac.0 - 25 guntas of land, he cannot say

on which direction Ac.0 - 05 gts of remaining land is existing to

their Ac.0 - 25 gts of land. The trial Court considering the

evidence on record decreed the suit in favour of the plaintiff by

declaring plaintiff as absolute owner of the suit schedule

property and granted injunction in favour of defendants.

Aggrieved by the said Judgment defendants 5 to 8 in the suit

filed the present appeal.

9. They mainly contended that the trial Court misdirected

while assessing the evidence of P.W.Nos.1 & 2 though they

confirmed that they were not in possession of the suit schedule

property and the Court fee paid under Section 24(b) of A.P.C.F

& S.V.Act is not proper. They also stated that P.W.1 is the power

of attorney holder of plaintiff and obtained without permission

of the Court, as such his evidence is to be eschewed. The

appellants stated that they purchased the said land in the year

1990 and also erected compound wall in the year 1991 itself, as

such suit filed by plaintiff is beyond period of limitation and it is

to be dismissed. Appellants also stated that neither the GPA

holder nor his principal were never been in possession of the

property, therefore suit filed by plaintiff was bad in law and is to

be dismissed. Plaintiff is the subsequent purchaser to the

appellants as such he has no right, title or interest over the said

property. The names of the appellants were also mutated in the

revenue records under Ex.B3 and B4, but the trial Court

without considering the same and also considering the

admission of P.W.Nos.1 & 2 regarding construction of

compound wall decreed the suit and is liable to be set aside.

10. Now, it is for this Court to see whether the Judgment and

Decree of the trial Court is on proper appreciation of facts or

not, if so to what extent.

11. The learned Counsel for the plaintiff relied upon the

decision of the High Court of Himachal Pradesh, Shimla in

the case of Ramesh Negi Vs. Hira Lal Mehta in which it was

held as follows:

"An appellate Court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him. The first appeal has to be decided on facts as well as on law. The appellate Court has jurisdiction to reverse or affirm the findings of the Trial Court and it is for the appellate Court to deal with all the issues and evidence before finding".

The counsel for the plaintiff also relied upon the decision of the

Hon'ble Supreme Court in the case of Anathula Sudhakar

vs. P.Buchi Reddy and others in which it was held that mere

filing of suit for injunction simpliciter will not arrive when there is

titlte dispute, the prayer for declaration is necessary only if the

denial of title by the defendant or challenge to plaintiffs title

raises a cloud on the title of plaintiff to the property. Admittedly

the suit is filed for declaration but not for injunction simpliciter.

12. The learned counsel for the appellants mainly contended

that issue regarding adverse interference was not framed and

hence matter has to be remanded to the trial Court with a

direction to frame the said issue and to decide the same. They

never claimed in the written statement that they acquired title

by adverse possession. Therefore, their argument cannot be

accepted. Admittedly, suit schedule property belongs to

defendant Nos.1 and 2, but executed GPA in favour of defendant

No.3 and he in-turn executed two registered sale deeds one in

favour of defandant No.4 vide document No.2013 of 1990 dated

12.02.1990 and another in favour of defendant Nos.5 to 8 on

12.07.1990 i.e., five (05) months after the execution of the sale

deed in favour of defendant No.4 and plaintiff purchased the

said property from defendant No.4 on 19.11.2002 vide

document No.10087 of 2002. Plaintiff contended that on

08.11.2007 when defendant Nos.5 to 8 came to the suit site and

informed that suit land was purchased by them on 12.07.1990,

he resisted the same and also filed suit for declaration and for

injunction. Plaintiff contended that the defendant Nos.1 and 2

are owners and possessors of the land admeasuring Ac.0-30 gts

in Sy.No.155 out of Ac.1-06 gts, situated at Madeenaguda

Village, Seri Lingampally Mandal, Rangareddy District and the

same was divided into house plots No.1 to 6 as per the layout

plan and plot No.4 admeasuring 400 square yards was

purchased by defendant No.4 through registered sale deed vide

document No.2013 of 1990 dated 12.02.1990. Whereas,

defendants 5 to 8 stated that they purchased Ac.0-25 gts of

land out of Ac.0-30 gts vide document No.8706 of 1990 dated

12.07.1990 and they constructed a compound wall around the

said land and they also purchased plot No.7 admeasuring 343.6

square yards in Sy.No.152 which is in the joint layout of

Sy.No.117, 151 and 172 vide registered sale deed vide document

No.15837 of 1990 dated 03.12.1990 and it is located on the

north west corner of Ac.0-25 gts of land purchased by them

from defendant No.3. They also constructed three rooms for

watchman, presently one watchman is residing in the said three

rooms. They also obtained electricity connection and paying

electricity consumable charges regularly. The M.R.O,

sherilingampally issued mutation proceedings by order dated

28.11.2005 and their names were recorded in pattadar and

possessors column in the pahanies. They also declared this

land before the urban land ceiling authorities and obtained

clearance on 24.01.2008 and further stated that from 1990 they

are in open and continuous possession of the suit schedule

property.

13. Both sale deeds are executed for an extent of Ac.0-30 gts

of land which is pertaining to defendant Nos.1 and 2 out of

Ac.1-06 gts in Sy.No.155, but the plaintiff stated that it was

divided into plots and one plot No.4 measuring an extent of 400

square yards was purchased by defendant No.4 through GPA

holder i.e., defendant No.3 whereas defendant Nos.5 to 8

contended that they purchased Ac.0-25 gts of land in Sy.No.155

from defendant No.3 as there was no approach for the said

extent. They have purchased plot No.7 and constructed a

compound wall and later mutated their names in the revenue

records and again they stated that they were in continuous

possession of the suit schedule property from 1990 onwards.

They mainly contended that P.W.1 clearly admitted in his

evidence regarding construction of compound wall and also

purchase of plot No.7 for ingress and egress to the suit schedule

property and thus suit filed by plaintiff at later point of time is

barred by limitation. Plaintiff purchased property from

defendant No.4 on 19.11.2002 and he stated that he was in

peaceful possession and enjoyment of the suit property, only

when defendant Nos.5 to 8 tried to interfere with the suit

schedule land on 08.11.2007 he resisted them and filed suit for

declaration on 11.12.2007.

14. Plaintiff filed original encumbrance Certificate, Certified

copies of pahanies for the year 2001-02 and 2002-03 along with

registered sale deed executed by defendant No.4 in favour of

plaintiff and registered sale deed executed by defendant No.3 in

favour of defendant No.4 and also GPA executed by plaintiff in

favour of her father. P.W.1 stated that her daughter residing at

USA, as such GPA holder filed suit on behalf of his daughter.

Defendants contended that plaintiff purchased the property

subsequent to their purchase, as such he is not entitled for any

declaration. In fact, defendant No.3 executed sale deed in favour

of defendant No.4 five months prior to the sale deed executed in

favour of defendent Nos.5 to 8. It is for defendant Nos.5 to 8 to

enquire about the details of the property prior to the purchase,

but they have not obtained any encumbrance certificate or

made any enquiries prior to the purchase property from

defendant No.3. Moreover, they purchased Ac.0-25 gts of land

out of Ac.0-30 gts. They also denied that said land was not

divided into plots and there is no layout showing location of the

plots. In fact, P.W.1 filed Ex.A3 which is unauthorized layout

and stated that it was supplied by vendor along with Ex.A2 sale

deed. He himself made certain corrections in the said layout

plan for the sake of convenience, but that ground cannot be

discarded the fact that defendant Nos.5 to 8 purchased plot

No.7 for ingress and egress to the Ac.0-25 gts of land purchased

by them. It clearly shows on 03.12.1990 the land was divided

into plots merely because he got mutated in his name and also

got clearance from the urban land ceiling authorities on

24.01.2008, he cannot claim right over the property. Defendant

Nos.1 to 4 did not file any written statement, it was mentioned

that defendant No.3 died during the pendency of the

proceedings but defendant Nos.1 and 2 who are owners of the

land remained ex-party. Admittedly defendant No.4 is the first

purchaser and defendant Nos.5 to 8 are subsequent purchasers

of the same property. It was also sold to defendant No.4 by

defendant No.3/GPA holder on behalf of defendant Nos.1 and 2.

Therefore, their contention that from 1990 onwards they are in

possession of the suit schedule property enjoyed by P.W.1 and

thus they acquire for title by adverse possession cannot be

accepted. Defendant No.4 purchased property from defendant

No.3 much earlier to defendant Nos.5 to 8 and he in-turn sold

to the plaintiff in the year 2002. When defendants tried to enter

into the property of plaintiff in the year 2007, he filed suit for

declaration. Considering the documents filed by plaintiff and

evidence on record the trial Court rightly decreed the suit in

favour of plaintiff, there is no infirmity in the Judgment and

decree of the trial Court and it needs no interference.

In the result, the appeal is dismissed confirming the

Judgment and Decree of the trial Court in O.S.No.1195 of 2007

dated 10.03.2015. There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA

DATED: 20.01.2023

Tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

APPEAL SUIT No.328 of 2015

DATED: 20.01.2023

TRI