mandadi sammi reddy vs bokkala_ravinder_reddy_and

Andhra High CourtAndhra High CourtBokkala Ravinder Reddy And ... vs Counsel For Petitioner: Sri ...SECOND APPEAL No.1360 of 2006

22.11.2011

Mandadi Sammi Reddy.

Bokkala Ravinder Reddy and others.

COUNSEL FOR PETITIONER: Sri M.S.Ramachandra Rao

COUNSEL FOR RESPONDENT No.1: Sri T.Srikanth Reddy

>Head Note:

? CITATIONS:

1. AIR 1940 MADRAS 113 (FB)

2. 2008(15) SUPREME COURT CASES 150

JUDGMENT:

The appellant filed O.S.No.19 of 2000 in the Court of Junior Civil Judge, Huzurabad against the respondentsfor the relief of perpetual injunction in respect of the suit schedule property viz., an extent of 21 guntas inSurvey No.124/A,B,C of Thummanapally Village. He filed I.A.No.221 of 2000 under Order 39 Rules 1 and 2C.P.C. The I.A. was dismissed by recording a finding to the effect that the appellant is not in possession of theproperty. Therefore, he amended the plaint to incorporate the relief of recovery of possession by obtainingpermission from the Court. The appellant pleaded the manner in which he acquired rights and title over theproperty. He pleaded that the 1st respondent, who is the immediate neighbour, encroached into the propertyand respondents 2 to 5 have purchased small bits out of the said land.

The suit was contested by the 1st respondent. He pleaded that he is the owner of about Ac.5.37 guntas of landin Survey No.124/D and that the suit schedule property is part of it. The trial Court dismissed the suit, throughjudgment, dated 19.01.2005. Thereupon, the appellant filed A.S.No.1 of 2005 in the Court of Senior CivilJudge, Huzurabad and the same was dismissed on 07.01.2006. Hence, this second appeal.

Sri M.S.Ramachandra Rao, learned counsel for the appellant submits that all the three grounds, on which thetrial Court and the lower appellate Court dismissed the suit and the appeal, are untenable in law. He contendsthat the view taken by the Courts below that the suit for recovery of possession without there being any prayerto declaration of title is not maintainable cannot be sustained in law. He further submits that though the 1strespondent did not raise the plea of adverse possession, the suit was dismissed as barred by limitation.Learned counsel further submits that the appellant was not at all under obligation to pray for cancellation ofdocuments, through which the suit schedule property is said to have been transferred. In support of each of hiscontentions, the learned counsel has placed reliance upon precedents.

Sri T.Srikanth Reddy, learned counsel for the 1st respondent. on the other hand, submits that the appellant wasnot clear as to the exact location of the suit schedule property and the same is evident from the fact that even aCommissioner appointed by the Court has reported that the property cannot be localized. He submits thatwhen there is a serious dispute as to the location and entitlement, the suit for mere recovery of possession is

Bokkala Ravinder Reddy And ... vs Counsel For Petitioner: Sri ...

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not maintainable. Learned counsel further submits that atleast when the respondents pleaded that the propertywas the subject matter of various documents, the relief as to the cancellation of the said documents ought tohave been prayed for.

The trial Court in all framed the following four issues for its consideration, based upon the pleadings of theparties: 1) Whether the plaintiff is entitled to recovery the possession of the suit schedule property as prayedfor in the plaint?

2) Whether the suit is barred by limitation?

3) Whether the suit is maintainable without seeking a relief of declaration that the documents which areregistered sale deeds existing in favour of defendants null and void?

4) Whether the suit is maintainable without seeking the relief of declaration of plaintff's side title in theschedule property?

On behalf of the appellant, P.Ws. 1 to 3 were examined and Exs.A.1 to A.8 were filed. On behalf of therespondents, D.Ws. 1 and 2 were examined and Exs.B.1 to B.7 were filed. The Commissioner was appointedby the trial Court with certain directions. The Commissioner and the Mandal Surveyor were examined asC.Ws.1 and 2 and the record pertaining to the survey was marked as Exs.C.1 to C.4. The suit was dismissedand in the appeal preferred by the appellant, the lower appellate Court has undertaken discussion withreference to the issues framed by the trial Court and did not frame any points independently. The appeal wasdismissed.

From a perusal of the judgments rendered by the trial Court and the lower appellate Court and on hearing thelearned counsel for the parties, it becomes clear that one of the grounds, on which the relief was denied to theappellant, is that he did not seek the relief of declaration. That approach however does not appear to becorrect. If an individual wants to seek the relief of recovery of possession of the property, the necessity forhim to pray for the relief of declaration would arise, if only serious challenge is made by the defendant to histitle. Such a challenge can be either before or after the suit is filed. For instance, if the plea of the defendant isonly as to the adverse or permissive possession, the plaintiff need not claim the relief of declaration of title atall. On the other hand, if an independent or parallel title is pleaded by the defendant, an occasion would arisefor a plaintiff to pray for the relief of declaration of title. Much would depend upon the perception of theplaintiff as to the existence of title in him, or the challenge thereto by others. No hard and fast rule can be laidto the effect that the relief of recovery of possession cannot be prayed for, unless the relief of declaration oftitle is also included. With some amount of certainty, it can be said that it is only in the suits for mandatoryinjunction that the necessity to pray for the relief of declaration would arise.

Another ground, on which the appellant was denied the relief, is that the suit was barred by limitation. Thequestion of limitation assumes significance in a suit for recovery of possession only when a plea of possessionis raised. It was only before the present Limitation Act was enacted that an obligation rested upon the plaintiffin a suit for recovery of possession to show that he was in possession of the property 12 years prior to theinstitution of the suit. That necessity does not exist now. The question of limitation assumes significance, onlywhen a plea of adverse possession is raised. Therefore, the view taken by the lower appellate Court on thisaspect is also not correct.

Now remains the last question on which the relief was rejected. It was observed that the appellant did not prayfor the relief of cancellation of certain documents. It may be true that it is only a person who is not a party tothe document that can file a suit for cancellation of such documents. However it is different from saying thatany person who asserts the title in respect of a property must invariably pray for the relief of cancellation ofdocuments, if any, executed by the third parties vis--vis the said property. Law on this aspect is very clear andreference can be made to the judgment of a Full Bench of the Madras High Court in Ramaswami vs.



Rangachariar1. This view is supported by the the Hon'ble Supreme Court in Kurella Naga Druva VudayaBhaskara Rao vs. Galla Jani Kamma2.

With the above discussion, it can be certainly said that the approach of the lower appellate Court or for thatmatter, that of the trial Court on the three aspects referred to above is not correct. All the same, the appellantcannot get any relief in the suit. The first reason is that C.Ws.1 and 2 appointed by the Court expressed theirinability to localize the land. The dispute ultimately boils down to the one of boundaries for localization. TheA.P. Survey and Boundaries Act and the rules made thereunder provide for comprehensive procedure forresolution of such disputes. An aggrieved party can not only avail the departmental remedies but also can filea suit under Section 14 thereof. Alternatively, the appellant can also institute proceedings for declaration ofhis rights vis--vis the property, in which event, there may be scope for the Court to examine the relativestrength and weakness of the contentions of the parties.

Hence, the second appeal is dismissed, however, leaving it open to the appellant to pursue his remedies underthe A.P. Survey and Boundaries Act and the Rules made thereunder or by instituting comprehensive suit forthe relief of declaration of title vis--vis the said property. In such an event, none of the observations made bythe trial Court or the lower appellate Court shall be treated as the final pronouncement on any aspect and theproceedings shall be decided on their own merits. There shall be no order as to costs.

_____________________

(L.NARASIMHA REDDY, J)



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