THE HON’BLE SRI JUSTICE M.LAXMAN SECOND APPEAL No.553 OF 2001

JUDGMENT:

1. The Second Appeal is filed against the judgment and decree dated 19.10.2000 in A.S.No.30 of 1994 on the file of the Court of the learned District Judge, Mahbubnagar, wherein the judgment and decree dated 28.02.1994 in O.S.No.43 of 1986 on the file of the Court of the learned District Munsif, Shadnagar, was confirmed.

2. Initially, the plaintiff has filed O.S.No.43 of 1986 on the file of the Court of the learned District Munsif, Shadnagar, for declaration and recovery of possession and the same was decreed in favour of the plaintiff on 28.02.1994. Aggrieved by the same, the defendant has preferred A.S.No.30 of 1994 on the file of the Court of the learned District Judge, Mahbubnagar, wherein the learned Judge has confirmed the judgment and decree passed by the Trial Court. Aggrieved by the same, present appeal has been preferred at the instance of the defendant.

3. The appellant herein is the defendant and respondent No.1 herein is the plaintiff in the suit. Respondent Nos.2 to 5 are the legal heirs of respondent No.1 herein. For the sake of convenience, the parties hereinafter are referred to as they were referred in O.S.No.43 of 1986.

4. The case of the plaintiff was that he is the absolute owner and possessor of the suit schedule property. On batai basis, the suit schedule property was given to the defendant in the year 1982-1983 and the defendant has paid share in the crop to the plaintiff till 1986 and thereafter, he refused to give share in the crop and also denied the title. In the said circumstance, the plaintiff has preferred the present suit.

5. The case of the defendant was that his father was in possession of the property from the year 1954 onwards. The title of defendant’s ancestor was confirmed as early as in the year 1954-1955 and subsequently, his name was recorded as pattadhar and possessor of the suit schedule lands. Further, they denied that the induction of possession of the suit schedule property in the year 1982. Subsequently, he came up with plea that his father was protected tenant and an attempt was made to introduce the document and the same was not allowed.

6. Basing on the above pleadings, the Trial Court has framed the following issues:

“1. Whether the plaintiff is the owner of the suit schedule land bearing Survey No.87/AA, if so, to what extent?

2. Whether the plaintiff is entitled to the mesne profits as claimed?

3. Whether the suit land is relinquished in favour of the defendants if so what is the effect of such relinquishment deed?

4. To what relief ?”

7. The plaintiff, to support his case, examined PW1 and PW2 and marked Exs.A1 to A3. The defendant, to support his case, examined DW1 to DW3 and marked Exs.B1 to B14.

8. The Trial Court, appreciating the evidence on record, decreed suit as prayed for. Aggrieved by the same, the defendant has preferred an appeal viz., A.S.No.30 of 1994 on the file of the Court of the learned District Judge, Mahbubnagar and the appeal grounds shows the following contentions:

“1. That the judgment and decree under appeal are against law, justice and contrary to the merits of the case and the same is liable to be set aside.

2. That it is an admitted fact that originally the suit Sy.No.87 was consist of 8-09 acres before the year 1954-55. Only in Khasra of 1954-55 it is divided into two parts; i.e., 5-18 acres as Sy.No.87/A Khata Number 104 in the name of father of respondent and 2-31 acres as Sy.No.87/AA with separate Khata number 105 in the name of the father of the plaintiff. The respondent/plaintiff could not give explanation for this division.

But as deposed by D.W.3 Laxmikanth Rao during the Khasra of 1954-55 the said land was divided by metes and bounds into two parts, and the suit 2-38 acres was given to the father of appellant for rendering services on the entire land. The Khasra of 1954-55 is a title to the holder of the lands and in subsequent pahanies the name of father of the appellant was record