IMPORTANT POINT
Proof of title, even if not to level of perfection, must be one which is acceptable in law.

L. Narasimha Reddy, J.— This appeal is directed against the order, dated 30.5.2011, passed by the Court of IV Additional District Judge, Visakhapatnam, in an application filed under Section 47, Rules 97 to 101 of Order XXI CPC, being E.A.No.3 of 2009 in E.P.No.26 of 2008 in O.S.No.326 of 2007.

2. The facts that gave rise to the filing of the appeal are as under:

Respondents 1 and 2 filed O.S.No.326 of 1998 against respondents 3 to 8 in the Court of IV Additional Senior Civil Judge (FTC), Visakhapatnam, for the relief of specific performance of an agreement of sale, dated 09.10.1993, in respect of the suit schedule property, being an extent of Ac.0.65 cents of land in R.S.No.59/P of Maddilapalem Village, Visakhapatnam District. An ex parte decree was passed on 6.8.2004. Based upon the decree, the E.P. was filed and a sale deed was executed by the Court on 23.12.2006. Alleging that respondents 3 to 8 herein occupied the land covered by the sale deed high handedly and raised thatched sheds, respondents 1 and 2 filed O.S.No.326 of 2007 in the Court of IV Additional District Judge, Visakhapatnam, for the relief of recovery of possession. The suit was decreed ex parte on 23.9.2008. For execution of the said decree, respondents 1 and 2 filed E.P.No.26 of 2008.

3. The appellants state that they have purchased three plots of land admeasuring 328, 286.22 & 235.66 square yards, in survey Nos.59/lop, 59/l1c2p & 59/12c, respectively, of Maddilapalem, Visakhapatnam, in the months of February and March, 2003 from the respective vendors. It was also stated that the three plots are contiguous and that all of them together were leased out to M/s. Sagar Durga Marbles & Granites, Visakhapatnam. Alleging that respondents 1 and 2 are trying to dispossess them, in the name of execution of the decree in O.S.No.326 of 1998, the appellants filed E.A.No.3 of 2009 under Rules 97 to 101 of Order XXI, read with Section 47 CPC in E.P.No.26 of 2008. It was pleaded that the very decree obtained by the 1st respondent in O.S.No.326 of 1998 was fraudulent and collusive and knowing fully well “that, none of the parties to the suit are in possession of the land, O.S.No.326 of 2007 was filed with the sole objective of dispossessing the persons, who are in possession. They have also stated that when their vendors faced threat of dispossession from M/s. Bora Appalareddy, they filed O.S. No. l of 1995 in the Court of Additional Senior Civil Judge, Visakhapatnam, and that suit has been decreed. The appellants resisted the execution of the decree by asserting title and possession of the property.

4. Respondents 1 and 2 opposed the application. They pleaded that the so-called purchase made by the appellants is long after the decree in O.S.No.326 of 1998 was filed and there is any amount of discrepancy in the sale deed relied upon by the appellants. It is also pleaded that even according to the appellants, the land claimed by them is substantially different from the one, covered by the decree in O.S.No.326 of 1998. Other contentions were also raised.

5. Through its order, dated 30.5.2011, the Executing Court dismissed the E.A.

6. Sri P.Sri Raghuram, learned counsel for the appellants, submits that the finding recorded by the Executing Court that the appellants failed to prove title to the land, is opposed to evidence and contrary to law. He contends that the whole exercise undertaken by respondents 1 and 2 was collusive and at no point of time, there was any adjudication as to the existence of title in favour of their vendors. He submits that the very fact that the second suit was filed for recovery of possession, after a suit for specific performance was decreed, and sale deed was executed, discloses that the whole exercise was collusive in nature. Learned Senior Counsel submits that the Executing Court did not take into account, the fact that the property claimed by the appellants is smaller in extent, compared to the one covered by the decree in O.S.No.326 of 2