S K AMEER Vs. SYED KHADER SHAEB

JUDGEMENT

(1.) Appellant is the defendant in the suit filed this appeal under Section 100 of the Code of Civil Procedure, 1908 against the reversing judgment and decree dated 18-03-2005 passed by the III Additional District Judge, Kadapa (Fast Track Court, Kadapa) in A.S.No.72 of 2000 by reversing the judgment and decree passed in O.S.No.575 of 1998 dated 21-07-2000 by the IV Additional Junior Civil Judge, Kadapa.

(2.) For the sake of convenience, the parties hereinafter called as arrayed in the original suit.

(3.) Brief facts of the case are that the respondents/plaintiffs filed the suit O.S.No.573 of 1998 against the appellant/defendant before the IV Additional Junior Civil Judge, Kadapa, for declaration of right, title and recovery of possession and for consequential relief of permanent injunction over the vacant place covered by EDB1F1 marked suit schedule property. The full extent of the land situated in Circar punji D.No.49 in Ippapenta village is Ac.3.10 cents belong to Manuka Kondaiah. One Sulthan Bee purchased land extent Ac.1.45 cents out of the land in Circar punji D.No.49 of Ippapenta village from Manuka Kondaiah, S/o Yerraiah, original owner under registered sale deed dated 16-11-1935, one Khasim Peera purchased Ac.0.95 cents on 06-06-1936 and plaintiffs' paternal uncle Husaian Saheb purchased land extent of Ac.0.57 cents on 06-06-1936 since then they had been in possession and enjoyment of their respective land. The balance land available in D.No.49 was Ac.0.13 cents out of it Syed Budan Saheb purchased Ac.0.041/2 cents vide registered sale deed dated 18-03-1952 one the same day the appellant's father Nanna Saheb purchased the remaining land extent of Ac.0.81/2 cents, but obtained sale deed for Ac.0.191/2 cents, from Manuka Narasimhulu, S/o Kondaiah. Whereas the balance land available was only Ac.0.081/2 cents. The land extent Ac.0.57 cents purchased by Hussain Saheb for his joint family consisting of Hussain Saheb and his brothers Khasim Saheb and Pakeer Saheb had been in joint possession and enjoyment of the same and later it was got partitioned the same and each one of them got 19 cents of land and FDBOE marked land fell to the share of Khasim Saheb. The respondents/plaintiffs two in number being the sons of Khasim Saheb got partitioned the land fell to their father's share equally, with equal length and width. The 1st plaintiff constructed thatched house in his part of land, whereas the 2nd plaintiff constructed house in his part of land with upstairs portion leaving vacant sites on all sides, keeping ventilation on southern and northern walls in ground floor and also upstairs portion long back for free air and light. In the vacant site of EFB1B1 there is a neem tree. In the year 1994, when the defendant tried to encroach the vacant land by digging pits adjacent to the walls of the 2nd plaintiff, the plaintiffs filed O.S.No.142 of 1994 before the III Additional District Munsif Court for declaration of right and for mandatory injunction to remove the wall and close the pits and the same was decreed pits were closed with the help of police. The defendant again proclaimed that the vacant land belong to him he would occupy the same by using force and occupied the same. (That is the cause of action for filing the present suit O.S.No.573 of 1998 before the IV Additional Junior Civil Judge, Kadapa.) The defendant filed written statement denying the averments of the plaint and states that he was not aware of the purchase of land extent of Ac.1.45 cents by Sulthana Bee and land extent of Ac.0.95 cents by Khasim Peera and land extent of Ac.0.57 cents by Hussain Saheb and land extent of Ac.0.041/2 by Syed Budan Saheb out of the total extent of the land Ac.3.10 cents situated in D.No.49 of Ippapenta village. He states that he was born in the year 1951, his father told him that he purchased land extent Ac.0.191/2 cents in S.No.49 on 18-3-1952 and had been in possession and enjoyment of the land. Out of it, 10 years back, he sold land extent of Ac.0.06 cents to one Rasool Saheb and he constructed house in the said site and residing therein. He denied the partition of the land extent of Ac.0.57 cents among the brothers of Hussain Saheb, who purchased the land extent of Ac.0.57 cents in the year 1936 stating that he purchased the land after separated from his brothers and so the brothers of Hussain Saheb, the father of the plaintiffs, and the plaintiff have no right over the land. Hussain Saheb had a son and three daughters they have to be joined as parties to this suit. He denied the plaint plan and filed separate plan. As shown in the plan, attached to the written statement the defendant constructed ABCD house and BDFE is the coconut leaves vasara extended up to the house of Rasool Saheb on the east and to the compound wall to the defendant house. PQOL is the Kottam (hut) of the first plaintiff and MNIK is a two storied building of the 2nd plaintiff and the defendant has been in possession and enjoyment of the HLKIJE FOBGH vacant portion shown in the plan attached to the written statement. The plaintiffs have no manner of right and enjoyment over the same. He further states that the 2nd plaintiff filed the suit against the defendant when he wanted some development to be made in the vacant site by digging pits adjacent to the house of the 2nd plaintiff and subsequently he closed them as per the decree. Based on the above pleadings the trial Court framed the following issues for adjudication of the lis.,