IMPORTANT POINT
Property vacant site and proof of effective possession difficult for anybody, petitioners entitled to claim relief in petition if petitioners able to show exercise of due diligence.

M. Satyanarayana Murthy, J.—This petition is filed under Order VI, Rule 17 of the Code of Civil Procedure (for short, ‘C.P.C.’) seeking permission to amend the plaint to incorporate certain relief’s i.e. recovery of possession of schedule property i.e. plot No. 126 in R.S.No.36/2B, Bhavanipuram, Vijayawada, alleging that the petitioners filed suit O.S.No. 52 of 2010 on the file of the Court of XII Additional District Judge, Vijayawada (for short, ‘the trial Court’), for declaration of title and for consequential injunction against the 1st respondent who set up title over the property by way of private sale. The 2nd respondent society sold schedule property to late Panduranga Rao, who is husband of the 1st petitioner and father of petitioner Nos. 2 to 4, under registered sale deed dated 29.2.1996. The property in an extent of Ac. 14.12 cents at Bhavanipuram, Vijayawada, was acquired by Government exclusively for the purpose of providing house sites to the 2nd respondent personnel under Land Acquisition Act, 1894 (‘the Act of 1894’ brevity) in the year 1985. Vijayawada Urban Development Authority (for, short, VUDA) approved layout and the same was divided into 215 plots. The 2nd respondent society allotted the plots to its members. During the allotment, late Panduranga Rao was allotted schedule property in the year 1996 through executing (sic) registered sale deed in his favour. In fact, the allotment was done in the year 1982 itself but execution of registered sale deed was postponed due to challenge of land acquisition before this Court which finally ended in dismissal.

The 1st respondent, though not a member of the 2nd respondent society, challenged the very acquisition of land on one hand and she is trying to encroach the plot of her choice on the other. Schedule property within the boundaries mentioned in Ex. Al is exclusive property of the petitioners and they are in possession of the property.

The 1st respondent filed suit for bare injunction against the petitioners and other individuals without seeking declaratory relief and the suit was decreed but the boundaries mentioned in injunction suit filed by the 1st respondent and the boundaries of schedule property were totally different. The 1st respondent was never in possession of schedule property initially but, encroaching into schedule property during pendency of the suit, continuing in possession of the same till today.

The petitioners further contended that the trial Court dismissed the suit on the ground that L.P.No. 4 of 1995 was not filed and number of plots consisting in L.P.No. 4 of 1995 were not disclosed. The trial Court dismissed the suit concluding that mere producing sale deed and marking the same as Ex. Al are not sufficient since the petitioners are out of possession. The specific allegation made in the affidavit as to how the 1st respondent came into possession is that the petitioners were, originally, in possession of schedule property, which is vacant land, but, during pendency of the suit i.e. on 5.2-2011, the 1srt respondent encroached into schedule property. Therefore, the petitioners claimed recovery of possession and permit them to amend the plaint.

2. The 1st respondent filed counter denying material allegations of the affidavit filed along with the petition while contending that she is the absolute owner of the property described in the schedule ever since her purchase from 30.1.1982 vide document No. 660 of 1982 of Sub-Registrar, Vijayawada. The 1st respondent has been paying property tax to authorities concerned. While the matter stood thus, when members of the 2nd respondent society tried to interfere with schedule property, the 1st respondent filed O.S. No. 171 of 1996 on the file of the Court of II Additional Junior Civil Judge, Vijayawada, for grant of permanent injunction against the society, its members, agents, servants and associates from ever interfering with peaceful possession and enjoyment of schedule property and the same was d