JUDGMENT:

This appeal is filed against the judgment and decree dated

09.01.2004 in A.S. No.9 of 2003 on the file of Senior Civil Judge, Bodhan in which the Judgment and decree dated 30.09.2002 in O.S.No.57 of 1999 passed by the learned Junior Civil Judge, Banswada was confirmed.

2. The suit vide O.S.No.57 of 1999 was filed for declaration and permanent injunction by the respondents/plaintiffs against the appellants/defendants in respect to Sy.No.210, admeasuring Ac.5.09 guntas of Sivar of Timmapur Village of Pitlam Mandal. The trial Court examined P.Ws.1 & 2 and marked Exs.A1 to A20 on behalf of the plaintiffs and got examined D.Ws.1 to 3 on behalf of the defendants and marked Exs.B1 to B31. The trial Court after considering the arguments of both sides, decreed the suit. Aggrieved by the said Judgment and decree, defendants therein preferred an appeal before the first appellate Court, and the same was dismissed by confirming the Judgment of the trial Court. Aggrieved by the concurrent findings of both the Courts, defendants before the trial Court preferred the present appeal.

3. The learned Counsel for the appellants raised the following substantial questions of law:

a) Whether both the Lower Courts are right in granting a Decree basing on Ex.A1 which is an Agreement of sale?

b) Whether both the Lower Courts are right in granting Decree through noticed that the Plaintiff changed their stand from Writ Petition to Original Suit with regard to his case?

c) Whether the Lower Courts are justified in answering the issue No.5 in favour of the plaintiff that “whether the Suit is bad for non-joinder of proper and necessary party called Sri Jagadguru Shankara Charya”?

d) Whether the Courts below are justified in not giving any proper reasoning with regard to the issue No.7 i.e., whether the Suit is barred by limitation and not maintainable and how?

e) Whether the Courts below are justified in their approach that the defendants failed to prove their case whereas, it is the settled Principle of Law that it is the Plaintiff to prove it’s Case on it’s own?

4. Heard Sri P.Shamanthak, learned Assistant Government Pleader for Arbitration and Sri K.Raghuveer Reddy, learned counsel for respondents.

5. The brief facts of the case are that the Plaintiff No.1 purchased the land in Sy.No.210 admeasuring Ac.5.09 guntas in dry land and Sy.No.214 admeasuring Ac.14.31 guntas situated at Thimmanagar village from Shankar Swamy Jagannadha Guru Samstha Hampi through his General Power of Attorney holder S.Rajeshwar Rao for a consideration of Rs.2,000/- under the unregistered sale deed dt.05.01.1957 in the name of plaintiff No.2, who was minor at that time and under the guardianship of plaintiff No.1 on the same date possession of above two survey numbers was delivered to the plaintiff by the G.P.A holder. As per the consideration sale deed on the date of execution of Rs.300/- was paid and possession of the said land was taken by plaintiff No.1. Later the remaining amount of Rs.1700/- was also paid to the G.P.A holder. Inspite of repeated demands plaintiff No.1 failed to execute the registered sale deed with respect to two survey numbers. The receipt of Rs.1700/- is misplaced. Both the survey numbers were purchased by plaintiff No.1 in the name of his minor son, Devender Reddy (plaintiff No.2) while the plaintiff No.1 and brother of plaintiff No.1 were living as a member of Hindu Joint Family.

6. The original partition among the brother of plaintiff No.1 took place in the year 1980 and the land in Sy.No.210 admeasuring Ac.5.09 guntas fell to the share of plaintiff No.1 and the land in Sy.No.214 admeasuring Ac.14.31 guntas fell to the share of plaintiff No.1’s brother, Vittal Reddy and Devender Reddy, Satyam Reddy, Jagga Reddy after the death of Vittal Reddy, his son Mohan Reddy are in continuous possession over the respective share in Sy.No.214 admeasuring Ac.14.31 guntas fell to the share of plaintiff No.1’s brother who is in continuous possession being owner over the