IMPORTANT POINT
There is no need to issue eviction notice against trespassers.

U. Durga Prasad Rao, J.—This Second Appeal is filed by the defendants questioning the judgment and decree dated 14.02.2003 in A.S.No.194 of 1997 passed by the VII Additional District Judge, Kakinada wherein the learned Judge allowed the appeal filed by the appellant/plaintiff and set aside the judgment and decree dated 28.12.1996 in O.S.No.146 of 1987 on the file of Principal Subordinate Judge, Kakinada and decreed the plaintiffs suit for declaration and possession.

2. The brief facts of the case are thus:

(a) The case of the plaintiff is that originally plaint A schedule property belonged to one Ghantasala Aadilakshmi and she sold the same under a registered sale deed dated 12.02.1961 to one Emani Bhanumathi who in turn gifted the same to plaintiff, who is her daughter-in-law through a registered gift deed dated 08.12.1981. While so, defendants 1 and 2 who are father and son entered into the said property claiming right over the same. When the plaintiff questioned their act, they threatened her with dire consequences. Then she filed a complaint before the SHO, PS Sarpavaram who charge sheeted the defendants in C.C.No.103 of 1984 before the II Additional Judicial First Class Magistrate, Kakinada, who after due enquiry found them guilty, of trespass and sentenced to pay fine. Defendants carried the matter in revision to the District Court wherein the learned Judge acquitted them on the ground that the case is of civil nature. Basing on the acquittal order, defendants again trespassed into the plaint schedule property and put their hayricks and started digging and taking away the earth from the said land. Hence the suit.

(b) The case of the defendants is that Ghantasala Adilakshmi was the original owner of the property and she let out the same to the 1st defendant on 05.07.1957 and since then he was in continuous possession and enjoyment of the property as a lessee and after that he purchased the same for Rs.92/- on 05.10.1966 and to that effect a receipt was also issued and since from the date of purchase he has been in possession and enjoyment of the property as owner.

(c) The further case of the defendants is that plaintiff having influenced the Sarpavaram police launched criminal proceedings against them but the appellate Court set aside the conviction finding them not guilty. The further case of the defendants is that Ghantasala Adilakshmi had not delivered possession of the plaint schedule property to Emani Bhanumathi on 12.02.1961 as she herself was not in possession of the land by that date. Emani Bhanumathi had no right over the plaint schedule property as on 08.12.1981 therefore, she cannot convey any right under gift deed to the plaintiff. First defendant was in possession and enjoyment of the same from 1957 upto 05.10.1966 as a lessee and thereafter as owner. They denied the contention of the plaintiff that defendants trespassed into the property. Therefore, plaintiff is not entitled for declaration or possession as claimed. They prayed to dismiss the suit with exemplary costs.

(d) Basing on the above pleadings, the trial Court framed the following issues.

1. Whether the plaintiff is entitled for declaration that she is the owner of the plaint schedule property as claimed?

2. Whether the plaintiff is entitled to eject the defendants 1 and 2 from the plaint A schedule property and for recovery of vacant possession thereof as claimed?

3. Whether the plaintiff is entitled to future profits from D1 and D2 and if so at what rate and for what period?

4. Whether the suit is not maintainable at law?

5. To what relief?

(e) During trial, PWs.1 to 3 were examined and Exs.A1 to A5 were marked. DWs.1 to 5 were examined and Exs.B1 to B8 were marked on behalf of defendants.

(f) On appreciation of facts and evidence the trial Court dismissed the suit holding that plaintiff is not entitled for declaration and ejectment of defendants and any mesne profits.

(g) Aggrieved, the plaintiff filed A.S.No.194 of 1997 before