HONOURABLE SRI JUSTICE N. TUKARAMJI SECOND APPEAL NO.149 of 2020

JUDGMENT:

Heard Mr. V.V.Ramana, learned Counsel for the appellants and Mr.Ch. Laxminarayana, learned counsel representing Mr.K.V.Sudhakar, learned counsel on record for the respondents. 2. This Second Appeal has been filed by the appellants/plaintiff assailing the decree and judgment dated 26.02.2020 in A.S.No.14 of 2019 passed by the Principal District Judge, Nalgonda confirming the decree and judgment dated 05.11.2018 in O.S.No.300 of 2008 on the file of the Junior Civil Judge, Nalgonda.

3(a) Briefly stated the relevant facts of the case are that the appellants/plaintiff had filed suit O.S.No.300 of 2008 asserting title and exclusive possession of an agricultural land admeasuring Ac.04.17 guntas in Sy.No.513 situated at Pulipalupula village, Munugode mandal, Nalgonda District (for short, ‘the subject land’) that he had perfected title by way of adverse possession since 13.08.1996. Thus, the suit for declaration of title and perpetual injunction against the defendants.

3(b) It has been averred that the subject land was originally owned by one Vattipalli Latchaiah and after his demise, the property was devolved on his two sons i.e. Pedda Venkata Narsaiah and Chinna Laxmi Narsaiah and other two sons were given in adoption. As Pedda Venkata Narsaiah remained issueless, his wife succeeded the property. On the other hand, Chinna Laxmi Narsaiah had one son who is the father of the plaintiff. After the death of wife of Pedda Venkata Narsaiah (Lilithamma), the plaintiff’s father (Narahari) became absolute owner and all the lands were mutated in his name.

3(c) The plaintiff’s father had four sons including the plaintiff and in partition the subject land fell to the plaintiff’s share and in 1996 his name was mutated in revenue records. Nonetheless as the defendant No.1 without any interest or right has been interfering with the possession, the plaintiff filed suit for permanent injunction vide O.S.No.145 of 1992 along with one Kambampati Venkataiah wherein the defendant No.1 set up a claim of ownership basing on a Will Deed of the year 1962 executed by Lilithamma, wife of Pedda Venkata Narsaiah. Pending the suit the defendant No.1 filed counter claim seeking declaration of title over the subject land and claimed entitlement for possession.

3(d) The trial Court after due trial dismissed the plaintiff’s suit for permanent injunction and allowed the counter claim by observing that the plaintiff did not dispute the Will Deed proposed in the counter claim and declared the defendant’s title over the subject land. That judgment was unsuccessfully challenged in A.S.No.62 of 1996 and subsequent second appeal also met the same fate in the year 2001 (13.06.2001).

3(d) In this backdrop the plaintiff by pleading that the trial Court had observed the fact that he is in the possession of the subject land and even after favourable judgment in counter claim as the defendant did not come into possession of the subject land and as he is in continuing possession and enjoyment from the last 12 years, he had acquired title by way of adverse possession. Thus prayed for the suit relief. He further pleaded that earlier the defendant No.1 had filed suit O.S.No.335 of 2006 seeking perpetual injunction claiming his possession being disturbed over the suit land. However, at a later date the suit was not pressed and this fact is strengthening the plaintiff’s possession over the suit land.

4. The trial Court after due trial held that non filing of suit for possession by the defendants will not affect their title over the subject property and the evidence of PW-2, DW-1 and pahanies/Exs:A-9 to A-12/Exs:B-3 to B-8 are establishing the fact that the plaintiff is not in possession more than 12 years adverse to the interests of the defendant No.1, thus the possessory title cannot be granted. In the absence of evidence of possession, perpetual injunction has been declined.

5. Aggrieved thereby the plaintiff filed A.