KOLA PRABHAKARA RAO Vs. K KANTHAMMA

JUDGEMENT

(1.) .The Appellants are the defendants in O.S.No. 103 of 1981 on the file of the learned Subordinate Judge, Chirala. The respondents are the Legal Representatives of the plaintiff in the suit. The suit was filed for declaration of title and possession of the suit property, a site measuring an extent of 1520 Sq. ft. i.e., 31/4 cts. out of 61/2 cts. of poramboke site in T.S.No. 33/4 situated at Chirala. The plaintiff claimed the suit property based on partition with his brothers by virtue of partition list dated 4-1-1969. He challenged that the defendants trespassed into the suit site by removing the thatched house and they also constructed a cattle shed there and they unauthorisedly put up two bunks on the eastern side of the property and rented them out to tenants and when they did not oblige to vacate the site, the suit was filed for the reliefs. The defendants denied the plaintiff's right or possession of the suit site muchless the dispossession as alleged and, on the other hand, they contended that the entire suit site of 61/2 cts. being part of survey No. 33/4 was with the family members of the defendants and their father Prasadarao, that they were in possession and enjoyment of the same both during the life time of Sri Prasadarao and thereafter till the date of the suit. They challenged the partition list dated 4-1-1969 as rank forgery. They questioned the right of the plaintiff to get possession of the suit property. Therefore, these controversies became the subject matter of the issues, namely, (1) Whether the plaintiff is entitled to ask for declaration in respect of the plaint schedule property in his favour? (2) Whether the plaintiff is entitled to ask for possession of the plaint schedule property from the defendants? (3) Whether the defendants perfected their right to plaint schedule property by adverse possession? (4) To what relief.

(2.) In a trial afforded to both sides, the plaintiff examined himself as P.W.I and two more witnesses as per P.Ws.2 and 3 and defendants 2 to 4 were examined as D.Ws.2 to 4 and witnesses as per D.W.I and D.Ws.5 to 8. Exs.A-1 to A-7 were marked for the plaintiff, Ex.B-1 was marked for the defendants and Ex.1 as Court document. With these materials and after hearing both the sides, the learned Subordinate Judge held the issues in favour of the plaintiff and decreed the suit with costs.

(3.) The unsuccessful defendants took up the matter before the learned District Judge, Ongole in A.S.No. 62 of 1992. The learned District Judge after hearing both the sides, with the reassessment of the materials before the Court, confirmed the Judgment and Decree of the learned Subordinate Judge and dismissed the appeal asking the parties to bear their own respective costs. With such concurrent findings and decisions by the two Courts below, this Second Appeal is filed. In view of the grounds taken in the appeal, in addition to the specific contentions raised by Mr. Haranath for the appellants, these substantial questions of law were raised: (1) Whether the suit can be based on the pleading without the title or without establishing the title in the sense that title known in law should be pleaded and proved? (2) Whether a suit for declaration of title and possession can be decreed if the title known in law is not properly pleaded or proved? (3) What is the type of the present case to be dealt with in relation to the questions of title and possession etc. particularly with reference to Sections 34 and 35 of the Specific Relief Act and also Section 9 of Code of Civil Procedure?