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2013 Supreme(AP) 96

HIGH COURT OF ANDHRA PRADESH
L. NARASIMHA REDDY, J.
M.C.V. Prasad & Others
Versus
M. Subba Raju & Others
Second Appeal No.1184 of 2012
Decided on : 13-02-2013

Advocates appeared:
For the Appellants:B. Nalin Kumar, Advocate.
For the Respondents:R1, N. Pramod, Advocate.

Headnote:Civil Procedure Code 1908 - Order 7 Rule 3 - Proper description of immovable property - In case the immovable property is a house, it contains house number assigned by the concerned local authority. If on the other hand, it is a vacant land, it can be identified with reference to the survey numbers or any other description, that may be given to it. In addition to that, the boundaries of the property must be clearly mentioned. It is not without any reason that even if there is any omission of description as to the survey number, the boundaries furnished in a schedule or documents would prevail, in ascertaining the property---Plaintiff may be permitted to seek necessary amendment to cure defect, if any, in describing an item of immovable property - If, in spite of defect being noticed or detected or pointed out, Plaintiff fails to take any steps to cure same, or steps taken by him do not bring about compliance with provision of law, defect would certainly constitute a ground for denial of relief.

JUDGMENT :

Appellants are the plaintiffs in O.S.No.488 of 1997 on the file of the I Additional Junior Civil Judge, Madanapalle. The suit was initially filed for the relief of perpetual injunction in respect of Ac.1.12 cents of land in Survey No.766/2 of Chinnathippasamudram Village of Chittoor District. It was pleaded that the suit land is part of large extent of land admeasuring Acs.12.04 cents in the survey number and that they purchased the same through a sale deed, dated 10.03.1984. According to them, the 1st defendant filed O.S.No.484 of 1997 in the Court of the I Additional Junior Civil Judge, Madanapalle with fictitious boundaries in respect of the said land and citing the decree obtained therein, they started interfering with their possession.

2. The 1st respondent alone contested the suit. The 2nd respondent who figured as the 1st defendant has filed a written statement, but did not participate in the further proceedings in the suit.

3. The 1st respondent pleaded that the appellants were never in possession of the suit schedule property and it is he i.e. the 1st respondent who developed a Vanka Poramboke by removing the thorny bushes, levelled the same and has grown coconut and other trees, for the past about two decades.

4. The appellants have also filed I.A.No.109 of 1997 under Order 39 Rules 1 and 2 C.P.C. The trial Court dismissed the same. Thereupon, the appellants filed an application seeking permission to amend the suit to incorporate the prayer for recovery of possession, and it was allowed.

5. Through its judgment, dated 26.02.2007, the trial Court decreed the suit as prayed for. The 1st respondent, who figured as the 3rd defendant, alone filed A.S.No.47 of 2007 in the Court of the VII Additional District Judge (Fast Track Court), Madanapalle. The appeal was allowed through judgment, dated 22.03.1012. Hence, this second appeal.

6. Sri B. Nalin Kumar, learned counsel for the appellants, submits that the evidence on record established beyond any pale of doubt that the appellants have title over the suit schedule property and that even the 1st respondent pleaded that he occupied the land under the impression that it is Vanka Poramboke. He contends that the small discrepancy as to the description of the property was given undue importance and the judgment and the decree passed by the trial Court were reversed by the lower appellate Court. He submits that whatever be the defect as to the description of the property, once the 1st respondent has stated that he occupied the land under the impression that it is part of Vanka Poramboke and once the appellants have established their title over it, the appeal ought to have been dismissed, and the decree passed by the trial Court, confirmed.

7. Sri N.Pramod, learned counsel for the 1st respondent, on the other hand, submits that the plaint itself was defective, since the property was not described, as required under Rule 3 of Order VII C.P.C. He contends that even after the property was identified by the Commissioner appointed by the trial Court, the appellants committed mistake while carrying out the amendments to the plaint, that too about the schedule. He contends that the trial Court failed to take note of the important requirement under Order VII C.P.C. and decreed the suit and that the lower appellate Court has corrected the patent mistake.

8. As observed earlier, the suit was initially filed for the relief of perpetual injunction. On dismissal of the application filed under Order 39 Rules 1 and 2 C.P.C., the appellants got the plaint amended, to incorporate the prayer for recovery of possession.

9. The 3rd respondent (2nd defendant) remained ex parte. The actual contest was only by the 1st respondent (3rd defendant). In his written statement, the 1st respondent did not claim any independent ownership vis-à-vis the suit property. He was categorical in his plea that being under the impression that the schedule property is part of Vanka Poramboke, he occupied, leve
























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