THE HONOURABLE SRI JUSTICE M.LAXMAN SECOND APPEAL No.368 of 2004

JUDGMENT:

1. The present Second Appeal assails the judgment and decree dated 22.01.2004 in A.S.No.9 of 2001, on the file of the V Additional District Judge (Fast Track Court No.IV), Khammam, wherein and whereby, the judgment and decree dated 16.01.2001 in O.S.No.106 of 1997, on the file of the I Additional Junior Civil Judge at Khammam, was reversed and consequently, the suit was dismissed.

2. The appellant is the plaintiff and the respondents 1 to 3 are the defendants in the suit. For brievity, the parties hereinafter referred as they were referred in the suit.

3. The sum and substance of the case of the plaintiff is that he is the purchaser of open plot to an extent of 550 Square yards, forming part of Survey No.288/A, Khanapuram Haveli, Khammam Urban Mandal, Khammam District from Lingaboina Roshaiah through the registered sale deed document No.2078 of 1980, dated 06.10.1980. The sale consideration was Rs.2,750/- Originally, the plaintiff’s vendor was having land in Survey No.288/A to an extent of Ac.3.24 guntas and he converted the land into plots and sold the schedule plot to the plaintiff. The defendants having nothing to do with the plantiff’s plot, tried to interfere in the ownership and possession of the plaintiff’s plot. Therefore, he filed the suit for declaration of title and consequential injunction.

4. The Defendant No.1 has not filed any written statement. Defendants 2 & 3 have filed written statements. The case of the Defendants 2 & 3 is that they denied the title and possession of the plaintiff and they claim that Defendant No.2 had puchased the land to an extent of 266.50 Square yards of house Plot No.3 from Defendant No.1 through the sale deed Document No.3209/1995, dated 19.08.1995 and Defendant No.3 had purchased an extent of 311 Square yards from Defendant No.1 with Plot bearing No.4 through the sale deed document No.3208 of 1995, dated 19.08.1995. Both the lands are forming part of Survey No.288/AA. Eversince they purchased, they are in peaceful possession and enjoyment of their purchased properties. According to them, the plaintiff has nothing to do with the suit schedule property. In fact, the said suit schedule property is not in Survey No.288/A, but it is in Survey No.288/AA. On the basis of the above pleadings, the trial Court has framed the following issues:-

1. Whether the plaintiff is entitled for declaration as owners and possessors of suit schedule property?

2. Whether the plaintiff is entitled for consequential relief of perpetual injunction?

3. To what relief?

5. The plaintiff to support his case, examined PWs 1 & 2 and relied upon Exs.A1 & A2. The defendants examined DWs 1 to 6 on their behalf and relied upon Exs.B1 to B6.

6. The primary Court after appreciating the evidence on record, found that the plaintiff has made out his case and consequently, the suit for declaration as well as injunction was granted by decreeing the suit. Aggrieved by the same, the 2^nd and 3^rd defendants have filed the First Appeal. The First Appellate Court reversed the judgment and decree passed by the primary Court and consequently, the suit was dismissed. Hence, the present Second Appeal at the instance of the plaintiff.

7. Heard.

8. At the time of admission, the following substantial question of law is framed:-

“Whether there is any perverse appreciation of fact and law?”

9. The contention of the learned counsel for the plaintiff is that the First Appellate Court has mistook the documentary evidence as well as the pleadings and has given undue importance to the boundaries given by PW1 in his evidence in reversing the judgment of the trial Court. According to him, the boundaries given by PW1 were not matching with the plaint boundaries as well as the sale deed boundaries and that itself cannot be a ground to reverse the findings of the trial Court for the reason that there is probability of change of names of boundaries on account of efflux of time due to subsequ