So far as the title to the property is concerned, it need not be decided in the suit. It is an admitted fact that the defendant pleads that the plaintiffs are an encroachers of the “B” suit schedule property. Therefore, the possession is admitted. Apart from it, the brother of the defendant is said to have filed the suit earlier with regard to the same property whereunder the possession of the plaintiffs has been recognized. Therefore, it is quite clear that the plaintiffs have been in possession and enjoyment of the property to the knowledge of all. Therefore, in view of the above circumstances, even if they have no right or title to the property, the only recourse open to the true owner is to file a suit for declaration of title and recovery of possession of the property since the possession of the plaintiffs is for a longer time.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

SECOND APPEAL NO.695 OF 2012

JUDGMENT:-

The defendant in O.S.No.733 of 1999 on the file of the Court of I Additional Junior Civil Judge, Chittoor is the appellant herein.

The suit was one filed for permanent injunction with regard to plaint “A” and “B” schedule property which was said to have been purchased by the plaintiffs. So far as “B” schedule property is concerned, the plaintiffs are said to be in possession and enjoyment of the property since long time.  As the defendant tried to cause interference, the suit was filed for permanent injunction. The appellant herein has filed a written statement admitting that he has no claim with regard to “A” schedule property, but, so far as “B” schedule property is concerned, he claimed that it belonged to his grandmother and it is his ancestral property for which he has got right and, therefore, the claim of the plaintiffs is not proved and are only an encroachers.

The trial Court after considering the material on record, dismissed the suit and in an Appeal, A.S.No.122 of 2004, the learned District Judge, Chittoor has allowed the appeal. Aggrieved by the said judgment, the present appeal is sought to be filed.

Evidently, the claim of the appellate is with regard to “B” schedule property. So far as the title to the property is concerned, it need not be decided in the suit.  It is an admitted fact that the defendant pleads that the plaintiffs are an encroachers of the “B” suit schedule property. Therefore, the possession is admitted. Apart from it, the brother of the defendant is said to have filed the suit earlier with regard to the same property whereunder the possession of the plaintiffs has been recognized.  Therefore, it is quite clear that the plaintiffs have been in possession and enjoyment of the property to the knowledge of all. Therefore, in view of the above circumstances, even if they have no right or title to the property, the only recourse open to the true owner is to file a suit for declaration of title and recovery of possession of the property since the possession of the plaintiffs is for a longer time.

Therefore, in view of the above circumstances, there is no substantial question of law to admit the Second Appeal. However, the appellant is at liberty to file a suit for declaration of title and recovery of possession and pursue the remedies available under law.

Accordingly, the Second Appeal is dismissed at the stage of admission. No costs.

_____________________­­__

N.R.L. NĀGESWARA RĀO,J

20-07-2012

TSNR