BRAHMALAH CH Vs. S SUBHA

JUDGEMENT

(1.) The plaintiff is the appellant in the above Second Appeal. He filed a suit for a declaration that the plaintiff is the owner and possessor of the suit schedule property and to issue mandatory injunction directing the defendant to remove the basement raised in the suit site and for perpetual injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff over the suit site. The plaintiff claims title by virtue of a sale deed dated 30-3-1967 in respect of the suit site ad-measuring 131 sq. yards from Manukonda Madhava Rao, who in turn purchased the said property under Registered Sale Deed dated 20-8-1966 from Bezawada Pundari and Namburi Siva Satyanarayana. The defendant claimed that she had purchased site of an extent of 117 sq. yards under Registered sale deed dated 2-11-1967 and 213sq. yards under Registered sale deed dated 13-11-1970 from Bezawada Pundari.

(2.) The trial Court decreed the suit insofar as title of the plaintiff is concerned and with regard to Issue No.2, the trial Court held that the plaintiff is entitled for mandatory injunction for recovery (sic. removal) of basement and in respect of Issue No.3, the suit was decreed for perpetual injunction.

(3.) It is relevant to note here that the trial Court observed that the defendant was a trespasser over the suit property and that in the interest of justice, the possession must be recovered from the illegal trespasser. Needless to reiterate that the suit filed by the plaintiff was not for possession, but for declaration of Title and possession. The Appellate Court noted the said inconsistency in the judgment of the Trial Court and observed as under: