HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

JUDGMENT:

This Second Appeal is filed challenging the judgment and decree, dated 17.03.2022, passed by the II Additional District and Sessions Judge Judge(FTC), Adilabad at Mancherial, in A.S.No.63 of 2018 whereunder and whereby the judgment and decree, dated 08.02.2018, passed by the Junior Civil Judge, Luxettipet, in O.S.No.17 of 2009 was confirmed.

2. The appellants herein are plaintiffs and respondent herein is defendant, before the trial Court. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.

3. The brief facts of the case as narrated in the plaint are that plaintiff filed suit in O.S.No.17 of 2009 for declaration of title and recovery of possession of land bearing Sy.No.120/4, admeasuring 12 ½ guntas and a portion of the house bearing GP.No.8-136, situated at Uthkur shivar, Gampalapalli Village, Adilabad District (hereinafter referred to as ‘schedule property’). It was averred in the plaint that the father of the plaintiffs by name Nerella @ Chakali Lasmaiah has acquired agricultural land admeasuring 25 guntas in Sy.No. 120 in Uthkur shivar of Luxettipet revenue Mandal along with lands in Sy.Nos.210 and 221 under Section 38(E) of A.P.Tenancy(TA) Act and the same was mutated in his name in the revenue records; that the father of the plaintiffs in the capacity of a protected tenant constructed two rooms house, which was given House No.8-136; that father of the plaintiffs on humanitarian grounds has allowed the defendant, who is his half brother to stay in one room of his house and when their grandfather died, defendant did not vacate the room. Later, In the year 1998, when the plaintiffs have applied to the MRO, Luxettipet for mutation of lands in their name in respect of the lands in Sy.Nos.120, 210 and 221, the revenue authorities have transferred half of the property from every survey number in the name of the defendant, as such 12 ½ guntas of land in Sy.No.120 went into the hands of the defendant and the defendant occupied it in June, 1999; that the plaintiffs came to know about the fraudulent transfer of the land in Sy.No.120 on receipt of summons in O.S.No. 23 of 2007 filed by the defendant and when the plaintiffs pressurized the defendant to vacate the room, the defendant and his son have given an undertaking to the plaintiffs that they will vacate the room by April, 2007, however, instead of vacating the room the defendant filed a suit against the plaintiffs. The plaintiffs appealed to the Tahsildar, Luxettipet for rectification of record and the Tahsildar sent a notice on 17.10.2007, but did not take any further action against the defendant. It was further averred that the father of the plaintiffs was issued ownership certificate under Section 38 (E) of Tenancy Act in 1974, but the defendant has fraudulently got entered his name in the revenue records and pahanies as ‘occupant’. Hence the suit.

4. Defendant filed written statement denying the allegation made in the plaint and averred that the father of the plaintiffs and the defendant are own brothers and sons of Late Nerella Venkaiah. The father of the plaintiffs is the elder son and Kartha of the family; that tenancy certificate was issued to both the defendant and father of the plaintiffs and both of them jointly cultivated the suit land along with some other lands. Thereafter, the father of the plaintiffs and the defendant had orally partitioned their lands including with suit land and as per the partition, defendant and Lasmaiah got half share each in the lands. In 1975, Ryotwari pass book was issued to the defendant and both defendant and father of plaintiffs were cultivating their respective share of lands without any dispute. The plaintiffs and their father did not interfere with the peaceful possession of the defendant till the death of Lasmaiah and when defendant constructed a house in schedule property, plaintiffs did not object the same. The defendant has been peaceful