NESAM SUBBARAO @ SUBBAYYA Vs. STATE

JUDGEMENT

(1.) UNSUCCESSFUL defendants in both the courts below are the appellants herein. The plaintiff/first respondent filed the suit for declaration of title to the plaint schedule property, for possession of the same after evicting the defendants there from and for damages for unauthorized use and occupation of the same. According to the plaintiff, the plaint schedule property is part of Balayya Sastry layout. Plaint schedule consists of site of 180 square yards with R.C.C. roof building therein in S.No.2 of Balayya Sastry layout, Visakhapatnam within the specified boundaries. Late Balayya Sastry is father of the plaintiff. He along with his wife and the plaintiff were assigned by Board of Revenue, Andhra Pradesh, Hyderabad by proceedings dated 01.06.1961 an extent of Ac.65.55 cents, vide Ex.A1, out of which the plaintiff was assigned Ac.22.88 cents. According to the plaintiff, the suit property is part of the said property. It is the plaintiff's case that on 24.09.1986, she came to know about the encroachment of the suit property when she went to the property where thatched house was in existence in an extent of 20 X 20 feet. It is alleged that after issue of Ex.A2 legal notice dated 10.11.1986, the defendant constructed a shed with brick and cement in approximately 140 square yards. The second defendant is father of the first defendant. It is their contention that the second defendant occupied the suit site about 17 years ago, filled up gedda with sand and soil and constructed a house. The defendants contend that the suit property is not in Balayya Sastry's lay out or in the land covered by Ex.A1 proceedings and that the plaintiff with a view to grab gedda property of the Government, filed the suit with false averments. After trial, the trial Court decreed the suit with costs; and on appeal by the defendants, the lower appellate Court confirmed the said decree; and it resulted in the defendants approaching this Court with this second appeal.

(2.) AT the time of admission of this second appeal, the then learned Judge of this Court found that substantial questions of law are stated in Para 10 of the memorandum of grounds of second appeal. They are as follows:

(3.) IT is contended by the appellants' counsel that Ex.A1 was wrongly admitted by the lower appellate Court as it is a photostat copy and there were no circumstances pleaded much less proved by the plaintiff under Section 65 of the Indian Evidence Act(in short 'the Act') laying foundational facts for receipt of secondary evidence on record. The appellants' counsel placed reliance on U.SREE v. U.SRINIVAS1, H.SIDDIQUI v. A.RAMALINGAM2 and J. YASHODA v.K.SHOBHA RANI3 of the Supreme Court on this aspect. On the other hand, it is contended by the respondent's counsel that since the defendants or their counsel did not take any objection at the time of marking of Ex.A1 during trial of the suit in the trial Court, such objection cannot be permitted to be raised by the appellants in this second appeal. The respondent's counsel placed reliance on a full bench decision of this Court and another decision of the Supreme Court on this aspect. Full bench of this Court in THE LAND ACQUISITION OFFICER v. NUTALAPATI VENKATA RAO4 after discussion of march of law from the privy council until that date, finally concluded: