JUDGMENT
P.S. Narayana, J.
1. Heard Sri N. Ram Mohan Rao, Counsel for appellant and Sri G. Peda Babu, Counsel for respondent.
2. The unsuccessful defendant in O.S.No. 88/83 on the file of Additional Subordinate Judge, Narsaraopet filed the present appeal. The respondent/plaintiff filed the suit for recovery of possession of the plaint schedule property from the appellant herein/defendant in the suit. The learned Subordinate Judge, Narsaraopet in O.S.No. 88/83 recorded evidence of PW-1 to PW-3, DW-1 to DW-6, marked Exs.A-1 to A-7, Exs.B-1 to B-15 and Ex.X-1 and on appreciation of evidence available on record came to the conclusion that the respondent herein/plaintiff is entitled for recovery of possession and accordingly decreed the suit. Hence the appeal.
3. Sri N. Ram Mohan Rao, the learned Counsel representing the appellant had taken this Court through the respective pleadings of the parties, the Issues settled before the Trial Court and the findings recorded and would contend that though it is stated by PW-1 that the plaint schedule property was purchased in 1946 by the father of the plaintiff there is not acceptable evidence to show that in between 1946 and the date of institution of the suit, at any point of time the family of the plaintiff has been in possession of the suit property. The learned Counsel also would contend that on the other hand there is clear evidence available on record that at least from 1964 onwards continuously the appellant herein/defendant in the suit alone has been in possession and enjoyment of the property and hence in the light of the evidence available on record the stand taken by the appellant/defendant should have been accepted and the suit should have been dismissed. The learned Counsel also explained relating to Ex.A-3 and the recitals specified therein and would comment that the document is not inter-parties.
4. Per contra Sri Peda Babu, the learned Counsel representing the respondent/ plaintiff had taken this Court through the evidence of PW-1 to PW-3 and DW-1 to DW-6 and Exs.A-1 to A-7 and Exs.B-1 to B-15 and Ex.X-1 and also had taken this Court through the findings recorded by the Trial Court. The Counsel also would contend that in view of Articles 64 and 65 of the Limitation Act 1963, in the absence of clear proof relating to the extinguishment of title, when title is established by the plaintiff the plaintiff is entitled to a decree. The learned Counsel also pointed out that the documents relied upon by the defendants are all documents after the institution of the suit and they are of no help.
5. Heard the Counsel and perused the material available on record.
6. The parties hereinafter would be referred to as plaintiff and defendant for the purpose of convenience.
7. The plaintiff filed the suit O.S.No. 88/ 83 on the file of Additional Subordinate Judge, Narsaraopet, pleading as hereunder :
The suit schedule property is part of vacant site of Ac.0-15 cents purchased by plaintiff’s father in 1946 under a registered sale deed dated 4-9-1946. Ever since the purchase the plaintiff’s father had been in possession of the site till his death. The suit property is part of D.No. 231/A. The total extent of that survey number is Acs. 11-37 cents. Plaintiff’s father purchased Ac.0-15 cents in that locality. The suit property is the Eastern portion of Ac.0-15 cents purchased by plaintiff’s father. To the East of plaintiff’s site defendant’s brother-in-law has his own site. The measurements of the entire Ac.0-15 cents are East and West: 115 links, whereas the North and South is 113 links. The plaintiff came into possession of Ac.0-15 cents after the death of his father and he had been in possession and enjoyment of the entire plot. Plaintiffs father was residing at Guntur due to his employment and the plaintiff also had not been living at Piduguralla where the property is situate. The defendant, taking advantage of the absence of the plaintiff at Piduguralla, encroached upon the Eastern portion of Ac.0-15 cents to an extent of about Ac.0-05 cents which is lying vacant. The encroachment could not be detected immediately and the plaintiff wanted to get his Ac.0-15 cents sub-divided and requested the Tahsildar, Piduguralla for necessary directions to the Surveyor to measure and sub-divide Ac.0-15 cents plot. The Village Karanam of Piduguralla is having a lay out plan of S.No. 231/A. The Taluk Surveyor with the help of the lay out plan identified Ac.0-15 cents of land and at the time of inspection by the Taluk Surveyor in February 1983 it came to light that the Eastern portion of plaintiff’s Ac.0-15 cents measuring about 5 cents which is shown as the suit property was encroached upon by the defendant. The defendant raised a building in the site and he could do so because of the absence of the plaintiff’s family at Piduguralla. The Taluk Surveyor with the aid of the documents of the owners of sites West of the suit site, could come to the conclusion that the Eastern portion of Ac.0-15 cents was encroached upon. The defendant has no right to the suit property and he is liable to vacate the same and put the plaintiff in possession of that property. Since the defendant is making encroachments on the Western side of the suit schedule property also and denying title to the suit property the plaintiff is entitled for recovery of possession of the entire suit schedule properties free from obstruction of the defendant.
8. The defendant filed written statement denying the allegations. It was also further pleaded that even as per the averments made in the plaint the plaintiff is not aware of the location of the site covered by the sale deed dated 4-9-1946 in favour of his father. This document does not relate to the suit site. It was also further pleaded that the survey measurements are neither correct nor valid. The Surveyor’s conclusions are erroneous and they cannot confer any title on the plaintiff. Neither the plaintiff nor his father ever had any title to or possession of Ac.0-15 cents shown in the plaint schedule. The plaintiff is not entitled to either evict the defendant or to seek possession. The suit schedule Ac.0-15 cents site is the ancestral property of the defendant inherited from his grandfather, through his father. The defendant’s grandfather had a thatched hut on the Eastern portion of the site and the rest of the site was being used for storing manure and tethering cattle from before the birth of the defendant. After the death of the defendant’s grandfather, his father continued to live in the house and used the site for the same purpose. The defendant’s family members were residing in the house and using the appurtenant site for tethering cattle and storing manure. The defendant’s father renovated the thatched house by raising pucca foundations in 1964. In 1977 the defendant converted the thatched house into a tiled house and he is employed in the Indian Army since 1970. The defendant’s parents were living in the house till the death of defendant’s father in 1980 and defendant’s mother is now residing in the house and using the site. The site and the house is the absolute property of the defendant and he is paying taxes. The defendant’s father’s name and later defendant’s name are recorded in Piduguralla Panchayat records. Its assessment number and Door No. in 1967 and 1825 and 9-217 respectively. These changed from time to time in 1981-82 and they are 2890 and 15-39 respectively. The defendant’s family members have been in exclusive possession and enjoyment since more than 40 years continuously without any interruption and have even perfected their title by adverse possession. The suit is barred by time and is liable to be dismissed. It was pleaded that the Court has no jurisdiction to entertain the suit. The plaintiff claimed that Ac.0-05 cents is encroached and that he wants possession of the same. Its value is less than Rs. 10,000/- and the suit should have been filed in the Court of Munsif Magistrate, Gurzala. The defendant prayed for dismissal of the suit with costs.
9. Subsequent to the amendment of the plaint, an additional written statement was filed denying the allegations. Subsequent to yet another amendment of the plaint it was also pleaded that because of these amendments it can be taken that the plaintiff is fighting the litigation on certain imaginary grounds.
10. On the strength of the pleadings of the parties the following Issues were settled :
1. Whether the suit property is the ancestral property of the defendant?
2. Whether the plaintiff has title to the suit property?
3. Whether the defendant perfected his title by adverse possession?
4. Whether the plaintiff is entitled for recovery of possession?
5. Whether the plaintiff is entitled for future profits ? If so at what rate?
6. To what relief?
The Trial Court recorded evidence as referred to supra and ultimately decreed the suit.
11. In the light of the submissions made, the findings recorded and the other material available on record, the following points arise for consideration in the present appeal:
1. Whether the plaintiff has title to the suit property?
2. Whether the plea of adverse possession by the defendant be sustained in the facts and circumstances?
3. Whether the plaintiff is entitled to recovery of possession?
4. If so, to what relief the parties are entitled to?
12. Points 1 to 3 : Points 1 to 3 being interlinked, for the purpose of convenience, can be answered together. The plaint schedule property is a vacant site and according to the plaintiff his father purchased Ac.0-15 cents in 1946 under registered sale deed dated 4-9-1946 under Ex.A-2. The plaintiff no doubt deposed all the details which had been pleaded in the plaint. Apart from PW-1, PW-2 and PW-3 also were examined and Exs.A-1 to A-7 were marked. PW-1 deposed in his evidence that suit schedule property is Ac.0-15 cents vacant site and his father purchased the property under Ex.A-2. Ex.A-1 is the plan and his father died in the year 1973 and he was looking after the property till his death. One Gafoor is on the East of the schedule site who is the brother-in-law of the defendant and Gafoor purchased the site from Ramanatham in the year 1964. Ex.A-3 is the registration extract of the document. The Western schedule in Ex.A-3 is stated to be that of his father and he is looking after the suit property after the demise of his father. This witness also deposed that the surveyor surveyed and submitted his report and the surveyor had noted an encroachment of Ac.0-05 cents to the Eastern side of the suit site. At first he filed the suit for recovery of Ac.0-05 cents and got ex parte decree and when the matter was pending the defendant made further encroachments on the Western side. A Commissioner was appointed who had noted the encroachment and hence the pleadings were amended claiming entire extent of Ac.0-15 cents. This witness also further explained the other documents Exs.A-6 and A-7. Ex.A-5 is the letter from the Taluk Surveyor. Ex.A-4 is the challan.
13. PW-2 is a Retired Deputy Inspector of Survey who had deposed about his conducting of survey in the year 1983 as per the lay out plan Ex.A-1 and also by looking into the documents pertaining to the suit schedule property and he deposed that the entire site is Ac.0-15 cents and there is construction of tiled house of Ac.0-05 cents. He assessed that the building was constructed two years prior to his inspection. On the Western side there is a vacant site and there is no compound wall to it. The report given by him after the survey is the original of Ex.A-5. PW-3 also deposed about certain details and also the boundaries of the site of Ac.0-15 cents at Piduguralla. This witness no doubt deposed that the suit tiled house is there for about 12 years.
14. The defendant examined himself as DW-1 who deposed that from his childhood he is in occupation of the house and it is his ancestral property and originally there was a thatched house and in 1964 they raised pucca walls with thatched roof. During 1977 the construction was made with tiled roof. The total extent of Ac.0-15 cents is having compound wall. This witness also deposed that his house is on the Western side of the said Ac.0-15 cents and is covered in 4 or 5 cents in Ac.0-15 cents and he no doubt denied that during 1982 and 1983 no one came and measured the land and since it is ancestral property he is unable to secure any record and he had not verified the revenue records to ascertain whether the plaint schedule property stands in the name of his father or not. Except Panchayat records there are no other records available with him. The other witnesses also were examined who no doubt supported the version of the defendant. Ex.B-1 is the certificate issued by the Executive Officer of the Panchayat. Exs.B-2 to B-5 are the tax receipts. Ex.X-1 is the certificate issued by M.P.P. U.P. School, Piduguralla.
15. On the strength of the evidence of DW-1, DW-2 and other witnesses on behalf of the document, submissions at length were made that the suit is liable to be dismissed and the appeal to be allowed. The recitals in Ex.A-3, Ex.A-6 and Ex.A-7 had been referred to and the boundaries had been taken note of and certain findings had been recorded in this regard at Para-12 by the Trial Court. It is no doubt true that these documents are not inter-parties but the fact remains that these boundaries shown in these documents upto some extent support the stand taken by the plaintiff. In Rangayya v. Innasimuthu, AIR 1956 Mad. 226, it was held that recitals of boundaries in documents not inter-parties are admissible under Section 13 of the Indian Evidence Act depending upon the facts and circumstances. Reliance also was placed on V.A.A. Nair v. Chettiar, . Apart from the evidence of PW-1, there is evidence of PW-2 and also PW-3. The document Ex.A-2 is not in serious controversy. The title of the plaintiff by virtue of Ex.A-2 can be said to have been established and hence clear findings had been recorded in this regard. When plea of adverse possession is taken the perfection of such possession ripening into title may have to be established by the defendant. The defendant relied upon certain documents of recent origin during the pendency of the litigation and no evidence is forthcoming to show at least from 1964 the defendant has been in continuous uninterrupted possession of the plaint schedule property. On the contrary, the specific case of the plaintiff is that till the death of his father his father was looking after the properties and initially there was encroachment of Ac.0-05 cents and subsequent thereto after ex parte decree since the other property also had been encroached the pleading was amended and for total extent the relief was prayed for. As can be seen from the evidence, taking advantage of the fact that the plaintiff is not available the defendant had encroached over the property. Hence in the light of the clear findings recorded and in view of the identification of the property made by PW-2 and the evidence of PW-1 and Ex.A-2, the title deed standing in the name of the father of the plaintiff, this Court is of the considered opinion that the title had been established and since the defendant was unsuccessful in discharging the burden cast upon him so as to disentitle the plaintiff to claim the relief of possession, the learned Judge arrived at the correct conclusion. Certain other findings also had been recorded by the learned Judge in this regard. Ex.X-1 was produced by DW-6 and this aspect also was discussed at length at Para 18 by the Trial Court. The other evidence available on record, the evidence of DW-3, DW-4 and DW-5 also had been discussed and findings had been recorded. In the light of the findings recorded in detail commencing from Paras 12 to 19, this Court is of the considered opinion that there are no grounds to disturb the other findings also and hence the said findings are hereby confirmed.
16. Point No. 4 : In the light of the findings recorded above, the appeal is devoid of merit and the same shall stand dismissed, with costs.