Dismissed

Shaik Sarvar Saheb v. Shaik Galib Bi (Died)

Andhra Pradesh HC21 Dec 2023SA/1807/2018

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for declaration of title and injunction over a 100 sq yards property, the High Court dismissed the appeal confirming the lower courts' finding that plaintiffs failed to prove the disputed land was part of their ancestral estate. The court also held the suit non-maintainable due to lack of a prayer for recovery of possession.

What did the court decide?

Impugned judgment of the Senior Civil Judge confirming dismissal of the suit is upheld.

Shaik Sarvar Saheb Vs Shaik Galib Bi (Died) — Partition | Andhra Pradesh HC (2023)

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THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

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SECOND APPEAL No.1807 of 2018

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JUDGMENT:

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Plaintiffs in the suit are the appellants in this second appeal filed under Section 100 C.P.C. Two plaintiffs filed O.S.No.84 of 2014 before learned Principal Junior Civil Judge, Mangalagiri seeking for declaration that they are the exclusive and joint owners of plaint ‘B’ schedule property namely BCEF of plaint plan with a further relief of mandatory injunction as against all the three defendants directing them to remove a building constructed by them shown in the plaint plan as CC1 C2 C3, which construction is in plaint ‘B’ schedule property and with a further prayer for permanent injunction restraining the defendants and their men from interfering with and causing obstruction to the enjoyment of the plaintiffs over the plaint ‘B’ schedule property and for costs and other reliefs. After due trial, the suit was dismissed by a judgment dated 10.03.2015. The first appeal preferred by plaintiffs was A.S.No.6 of 2015 and the learned Senior Civil Judge, Mangalagiri by a judgment dated 19.09.2018 dismissed the appeal and confirmed the judgment of the trial Court. It is as against that this second appeal is preferred by the plaintiffs.

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Dr. VRKS, J S.A.No.1807 of 2018

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During pendency of first appeal, defendant

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No.1/respondent No.1 herein died and her legal representatives were brought on record as respondent Nos.4 and 5. Therefore, in this appeal those respondents/defendants are respondent Nos.4 and 5.

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This second appeal has arisen in the following circumstances:

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An extent of 438 square yards, which consists of house site bearing Door No.3-84 situated in Survey Nos.226 and 226/B in Pedavadlapudi Village of Mangalagiri Sub-District of Guntur District is described as ‘A’ schedule in the plaint stating that under a registered sale deed dated 23.02.1899 (Ex.A.1), this was purchased by two individuals by name Sri Shaik Sarvar Saheb, S/o. Khairathi Saheb and Shaik Dadu Saheb, S/o. Silar Saheb and together they enjoyed it. Thereafter one of these joint owners by name Shaik Dadu Saheb S/o. Silar Saheb sold out his share to the other sharer namely Sri Shaik Sarvar Saheb, S/o. Khairathi Saheb under a registered sale deed dated 01.06.1914 (Ex.A.2). Thereafter this sole owner Shaik Sarvar Saheb held possession and enjoyment

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of this entire property. He died intestate. On his death his son Sri Shaik Nagul Meera succeeded to this property and enjoyed it as absolute owner till his death in the year 1984 and he died intestate. On his death this property was succeeded by his two sons and they are the plaintiffs in the suit. In the plaint they claimed that in this ‘A’ schedule property they constructed a house and they have been living therein and they have been paying taxes to Gram Panchayat. They are illiterates and not worldly wise. Their occupation for their livelihood is by way of making garlands. They never thought of measuring their ‘A’ schedule property. Taking advantage of these circumstances, family of defendants constructed a house towards south of the house of the plaintiffs and the defendants made that construction in the year 2005. When those constructions were made, plaintiffs were under the impression that the defendants must have been constructing their house in their own site. Thereafter, during January 2014 the plaintiffs being brothers to each other wanted to have this plaint ‘A’ schedule property partitioned and in that context they wanted to have the property measured and it was at that time the defendants raised objections. Plaintiffs applied to Mandal Surveyor to fix the

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boundaries for their ‘A’ schedule property and they paid the necessary fee and after due notice the Mandal Surveyor fixed the date 08.03.2014 to effect measurements of the property. When the Mandal Surveyor measured the site it emerged that a part of plaint ‘A’ schedule property was occupied unlawfully by the defendants. That occupied portion is shown in plaint ‘B’ schedule. This is an extent of 100 square yards. Realising this, defendants prevented the Mandal Surveyor from proceeding further and did not cooperate for completion of the survey and they raised a quarrel with the plaintiffs. That plaint ‘B’ schedule property is part of plaint ‘A’ schedule property. Therefore, the suit is filed for declaration of title over plaint ‘B’ schedule property and mandatory injunction and permanent injunction.

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Contesting the suit, 3^rd defendant filed a written statement and defendant Nos.1 and 2 filed a memo adopting it. Their claim is that the suit mentioned allegations are all false and incorrect. Smt. Aamir Bi, W/o. Shabaan Saheb purchased three pieces of land under three different sale deeds and one among the latest is a registered sale deed dated 04.11.1935 for an extent of 85 ½ square yards. She purchased this from the

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legal heirs of late Sarvar Saheb. The names of the legal heirs are: 1) Shaik Meera Saheb, 2) Davath Bi and 3) Dadi Bi. Among the three items of property purchased by Aamir Bi, this 85 ½ square yards fell to the share of husband of the 1^st defendant whose name is also Meera Saheb. He constructed a small hut and lived there for a long time and thereafter in the year 2005 defendants constructed a building in that 85 ½ square yards. When they constructed that building, they left some vacant site towards eastern side to facilitate flow of used water. While the defendants have been in possession and enjoyment of this property since the year 2005, there were no problems till January 2014. It was during January 2014 the defendants started Bhoomi Puja for construction of first floor for this building. Plaintiffs approached them with a request to sell that property, but the defendants refused. Plaintiffs left the place while hurling threats. With a view to harass them plaintiffs applied for survey and when the Surveyor came to measure the properties, defendants submitted all their documents and while measuring the plaintiffs realised that the constructions on part of the defendants were within their own property. Therefore, plaintiffs intentionally stalled further work of the Surveyor,

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alleging that sale deed dated 04.11.1935 pertaining to the defendants is not genuine, and one of the executants of the document is Shaik Meera Saheb and he is not father of the plaintiffs and the name of the father of the plaintiffs is Nagul Meera. Thereafter with all false contentions, plaintiffs came up with this suit. They prayed for dismissal of the suit.

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Trial Court framed the following issues and recorded the evidence on those issues:

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Whether the plaintiffs are entitled for decree of declaration as prayed for?

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Whether the plaintiffs are entitled for mandatory injunction as prayed for?

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Whether the plaintiffs are entitled for permanent injunction as prayed for?

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To what relief?

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Plaintiff No.1 testified as PW.1 and got examined two other witnesses as PWs.2 and 3. They got marked Exs.A.1 to A.4. Defendant No.3 gave evidence as DW.1 and got examined another witness as DW.2. They got marked Ex.B.1. After hearing arguments on both sides and after considering the entire evidence, learned trial Court held all the issues against the plaintiffs and dismissed the suit with costs.

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Challenge in the first appeal raised by the plaintiffs received the same consequences and their appeal was dismissed and the judgment of the trial Court was confirmed.

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At para No.16 in page Nos.6 and 7 of its judgment, the learned trial Court recorded that as far as plaint ‘A’ schedule property is concerned, as could be seen from the pleadings on both sides, there is no dispute and the entire dispute is only with reference to plaint ‘B’ schedule property. A reading of the entire judgment of the trial Court shows that there is absolutely no decision rendered by the trial Court as to whether plaint ‘A’ schedule property consisting of 438 square yards covered by Ex.A.1-registered sale deed dated 23.02.1899 and Ex.A.2registered sale deed dated 01.06.1914 belonged to the ancestors of plaintiffs and was succeeded by them. However, going by the pleadings on both sides and evidence on both sides, it could be said that the claim of ownership of plaintiffs based on Exs.A.1 and A.2 concerning plaint ‘A’ schedule was not challenged by the defendants at all. The approach of the trial Court was that it was trying to find out whether plaint ‘B’ schedule property belonged to the plaintiffs or it belonged to the defendants. On considering the evidence of DW.1 and Ex.B.1, which is certified

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copy of registered sale deed dated 04.11.1935, the learned trial Court held that plaint ‘B’ schedule property is owned by defendants by virtue of that document. It further held that Ex.B.1 was executed by the children of Sarvar Saheb. It recorded that Sarvar Saheb is the grandfather of the plaintiffs. It was pointed out to the trial Court that one Nagul Meera is the son of Sarvar Saheb and it was that Nagul Meera who is the father of both the plaintiffs and that Ex.B.1 was not executed by that Nagul Meera. It was further pointed out to the trial Court that the said Ex.B.1 was executed by Shaik Meera Saheb and two others and that Shaik Meera Saheb is not the father of the plaintiffs. In this regard, the learned trial Court at para No.25 in page Nos.9 and 10 of its judgment stated that it was up to the plaintiffs to show that Shaik Meera Saheb, Davath Bi and Dadi Bi, who executed Ex.B.1, were not the children of plaintiffs’ grandfather Shaik Sarvar Saheb. It further held that in that regard there was no valid evidence from plaintiffs. It is in such circumstances, it went on to record that appropriate legal heirs of Shaik Sarvar Saheb executed Ex.B.1-registered sale deed and therefore, plaint ‘B’ schedule property belonged to the defendants and not to the plaintiffs. Learned trial Court

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recorded a few more findings to deny the relief to the plaintiffs. One is about plaintiffs not moved a step forward when defendants were making constructions in the year 2005 and sleeping over the matter till 2014. It recorded that if really the property in plaint ‘B’ schedule belonged to plaintiffs, they would not have really spared the defendants when they were making constructions. One important finding rendered by the trial Court can be seen at para No.27 of its judgment. It stated that from the evidence it was seen that it was plaintiffs, who first constructed their building in plaint ‘A’ schedule property and it is only thereafter the defendants made their constructions in plaint ‘B’ schedule property. By the time defendants made constructions plaintiffs were already in occupation of their own property. Therefore, it was up to the plaintiffs to show to the Court the correct and total extent of plaint ‘A’ schedule property. At para No.30 of its judgment, learned trial Court stated that from the evidence of PW.1 it could be seen that he himself was not aware of the extent of construction made by the plaintiffs in their own property. The judgment of the trial Court also shows that there was an advocate commissioner deputed to measure the properties of both parties. At para No.29 of its

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judgment this aspect of the matter was dealt with by the trial Court and finally it stated that the report of the advocate commissioner was found to be of no relevance and therefore, discarded it. It is beneficial to extract para No.29 of the judgment of the trial Court:

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“29. The Advocate-Commissioner was also appointed by this Court and the Advocate-Commissioner with the help of the Mandal Surveyor measured the disputed properties and submitted report along with the plan, that the defendants encroached the plaint B schedule property but as seen from the report as well as the plan submitted by the Advocate-Commissioner no where the AdvocateCommissioner measured the plaint schedule property as well as the defendants’ property as per the documents of title of the defendants and in the absence of the documents of title of the defendants it is not known as to how the Advocate-Commissioner arrived to the conclusion that the defendants encroached into the plaint B schedule property and as such, the report submitted by the AdvocateCommissioner has no relevancy.”

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Finally, it concluded saying that plaintiffs failed to establish their right over plaint ‘B’ schedule property and without any material they came to Court and they failed to establish Ex.B.1-sale deed was not made by the legal heirs of plaintiffs’ grandfather Shaik Sarvar Saheb and thus, plaintiffs

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failed to establish their title and possession over plaint ‘B’ schedule property. For these reasons, it dismissed the suit.

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Learned first appellate Court made its judgment and a reading of it would make one to understand that it contains almost repetition of what is available in the trial Court’s judgment. It agreed on all aspects with the findings of the trial Court. It virtually adopted the issues framed by the trial Court as the points that are for consideration before it. Learned first appellate Court stated that though plaintiffs were talking about Mandal Surveyor’s report, they did not file it and there is no evidence to find as to how plaintiffs concluded that the defendants made encroachments into their property. Accepting the observations of the trial Court, it also recorded that there is a passage between the properties of both parties. It further observed that it was for plaintiffs to show Ex.B.1 is incorrect, but they failed to do it. At page No.9 para No.9 (iv), the learned first appellate Court dealt with the report of the advocate commissioner.

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Dr. VRKS, J S.A.No.1807 of 2018

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On 05.03.2020 a learned Judge of this Court admitted

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this second appeal on the following substantial questions of law:

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1. Whether the Courts below failed to observe that the grandfather of the appellant late Sk. Sarvar Saheb and one Sk. Doula Saheb jointly purchased an extent of 438 sq.yards on 23.02.1899 under Ex.A1 and on 01.06.1914 (as per Ex.A.2) (but it is wrongly typed as 01.06.1994) the said Doula Saheb sold his share to late Sk. Sarvar Saheb under registered sale deed which is Ex.A2.

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1. Whether the Courts below failed to observe that the appellants’ father late Nagul Meera and their maternal aunts never executed Ex.B1 sale deed which is an extent of 85.5 sq.yards in favour of mother-in-law of the 1^st respondent.

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1. Whether the Courts below failed to observe that three executants namely Sk. Meera Saheb, Devath Bi, and Doudi Bi are not legal heirs of late Sk. Sarvar Saheb.

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Learned counsel on both sides appeared and submitted their arguments.

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Learned counsel for appellants argued that Sri Shaik Nagul Meera is the father of the first plaintiff and Ex.A.3 which is copy of bank passbook of first plaintiff would also show the same but the Courts below failed to consider this and erroneously held that the said Shaik Nagul Meera is same as

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that of Sri Meera Saheb which was contended by the defendants

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in the suit. Learned counsel further argued that Ex.B.1-sale deed based upon which the defendants contended their title over plaint ‘B’ schedule property has no reference to earlier link documents. It is further contended that Courts below erroneously discarded the report of the advocate commissioner and failed to consider the evidence led by plaintiffs with reference to Surveyor’s report. It is in this regard learned counsel for appellants submits that they filed I.A.No.1 of 2018 (S.A.M.P.No.1 of 2018) seeking permission to adduce further evidence. In this application the following four documents are listed.

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Xerox copy of the Surveyor Report dated 10.03.2014.

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Certified copy and Xerox copy of the Advocate Commissioner Report dated 08.09.2014.

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Genealogy of the appellants (Xerox)

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Aadhar Card of the appellants (Xerox)

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The argument of the learned counsel for

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appellants/plaintiffs is that Courts below failed to appreciate the evidence properly and reached to erroneous conclusions and

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therefore, the judgments of the Courts below are required to be upset and the suit is to be decreed.

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As against it, the learned counsel for respondents submit that the very suit is not maintainable since relief for recovery of possession of plaint ‘B’ schedule property was never asked for in the plaint. The contention of the appellants about Mandal Surveyor’s report and its non-consideration by the Courts below is ill-founded since during the course of trial appellants/ plaintiffs never exhibited such document and never examined the said Mandal Surveyor. That the substantial questions of law formulated by this Court do not actually arise in this appeal and even if they arise they are immaterial in deciding the actual dispute between the parties and the findings of fact recorded by both the Courts below bind this Court in second appeal and no real question of law has arisen at all and seeks dismissal of the appeal. Arguing about I.A.No.1 of 2018 (S.A.M.P.No.1 of 2018) filed by the appellants, the learned counsel for respondents submit that the application is filed under Section 151 C.P.C. only to avoid the legal barriers contained in Order XLI Rule 27 C.P.C. for production of additional evidence and therefore, the

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said application cannot be entertained. Learned counsel

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submits that there are no merits in this appeal and the same has to be dismissed.

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This Court has duly considered the entire material on

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record and the earnest submissions made by learned counsel on both sides. A few facts would make it crystal clear as to what exactly lies at the heart of the dispute among parties. By the evidence of PW.1 and Exs.A.1 and A.2 the title of plaintiffs over plaint ‘A’ schedule property stood proved. In fact in paragraph No.16 at page No.7 the learned trial Court recorded that about title over plaint ‘A’ schedule property there has been no dispute between parties. According to appellants/plaintiffs, a part of plaint ‘A’ schedule property was encroached upon by the defendants and that portion which is under their encroachment is shown as plaint ‘B’ schedule property. The fact that plaint ‘B’ schedule property has been in occupation of the respondents/defendants is spoken to by DW.1 and is admitted by plaintiffs by their pleadings itself. Respondents/defendants assert their possession based on title for which they placed reliance on Ex.B.1-sale deed dated 04.11.1935. The contention

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of the plaintiffs/appellants that there was no reference to link documents in Ex.B.1 does not further the cause of the plaintiffs.

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Mere non-mentioning of link documents by itself could not make Courts of law to suspect the validity of a registered document of the year 1935. In fact defendants did not prefer a counter claim and they were only defending their occupation of plaint ‘B’ schedule property and in support of their contention they placed on record Ex.B.1. No evidence was led before both the Courts below to show that property covered by Ex.B.1 is different from property mentioned in plaint ‘B’ schedule. It is in such circumstances, Courts below were right in holding that plaint ‘B’ schedule property is in occupation of respondents/ defendants by virtue of Ex.B.1.

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On considering Ex.A.3-bank passbook even if it is to be recorded that the father of first appellant/first plaintiff is Shaik Nagul Meera and he is not one of the executants of Ex.B.1 that by itself does not advance the cause of plaintiffs/appellants. Though it is true that the respondents/defendants while asserting their rights under Ex.B.1 and though they failed to show that the executants of their document are not legal heirs of late Sarvar Saheb from whom the plaintiffs claimed their title that by itself do not vitiate Ex.B.1 since the core issue in the suit is whether plaint ‘B’ schedule property is part of plaint ‘A’

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schedule property or not. Until appellants/plaintiffs demonstrate through their evidence that plaint ‘B’ schedule property is part of plaint ‘A’ schedule property they could not be granted any relief. Be it noted, the weakness or failure of defendants by itself would not entitle the plaintiffs to have a decree in their favour.

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The averments in the plaint as well as the evidence of PW.1 would indicate that they have been in occupation of plaint ‘A’ schedule property and decades ago they constructed a house and they have been living therein. Their pleadings and evidence also show that till the year 2014 they never measured plaint ‘A’ schedule property. There was no material placed on record to indicate that while obtaining Exs.A.1 and A.2-sale deeds, the purchasers had actually got the property measured. The entire claim of the plaintiffs rested on the basis of extent of property mentioned in Exs.A.1 and A.2 without there being any physical verification of the actual measurements of the property obtained by them under Exs.A.1 and A.2. When the actual measurements of the property they purchased is not clearly known, it is difficult to say that plaint ‘B’ schedule property is also part of plaint ‘A’ schedule property. It is quite possible that

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the extent mentioned in Exs.A.1 and A.2 may not really be the same extent that was available within the boundaries mentioned in those documents. That probability was never ruled out by any evidence led by plaintiffs. In such circumstances, their contention that plaint ‘B’ schedule is part of plaint ‘A’ schedule property is only a surmise on their part.

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The pleadings and the evidence of PW.1 was that in the year 2014 they had paid fees and secured the services of a Mandal Surveyor who in fact measured the properties of both sides and arrived at a conclusion saying that defendants/ respondents encroached upon a part of the property of the plaintiffs. It is clear from the record that plaintiffs did not summon the said Mandal Surveyor and did not summon his alleged report and they did not exhibit such evidence before the Courts below. Why they failed to do is a matter of concern. The argument of the learned counsel for appellants is that the counsel for the plaintiffs in the trial Court colluded with the opposite party. When the allegations are made against the counsel, it is always required that some material must be there on record to show possibility of such acts on part of the counsel. In I.A.No.1 of 2018 (S.A.M.P.No.1 of 2018) a sworn affidavit of

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first appellant is filed whereunder the appellants seek production of that Surveyor’s report requesting the Court to mark it as a piece of additional evidence on their part. In this sworn affidavit there is no mention about their counsel in the trial Court colluding with the opposite party. This affidavit is completely silent as to why this Surveyor report and other documents listed in this application were not produced before the trial Court or at least in the first appellate Court. It simply says that these documents are relevant and therefore, they have to be considered. Since this affidavit is silent about any collusion of the counsel, the argument of the learned counsel for appellants about collusion of the trial Court lawyer with the opposite party cannot be countenanced. Order XLI Rule 27 read with Order XLII C.P.C. permit additional evidence to be

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produced. This provision opens with the mandate that the parties to an appeal shall not be entitled to produce additional evidence. For that rule a few concessions are recorded in the statute and in the presence of any such situations the Court may consider receiving additional evidence. As per this provision, the proposed evidence must have been produced before the trial Court and must have been refused by the trial

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Court. In the present case that never occurred. This provision further allows production of additional evidence only when the party proposing additional evidence shows that despite due diligence such evidence was not within the knowledge of the party at the time of trial in the suit. In the case at hand, the appellants from the beginning have got knowledge of this Surveyor report and from the beginning they were arguing about that Surveyor’s report and other documents. Thus, despite having full knowledge of their own documents, they did not produce them in the Court at the relevant time. The other situation in which an appellate Court could receive additional evidence is that when the appellate Court is of the opinion that such documents are required to enable it to pronounce the judgment. In other words, if an appellate Court is capable of pronouncing an effective judgment with the material available on record, then there could be no permission to produce additional evidence. A mere contention that additional evidence proposed is in the interest of justice and that would show the virtue of plaintiffs’ claim by itself is no ground to allow such evidence. Processual justice is a matter of importance. To fill up the lacunae in one’s case one could not be permitted to

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adduce additional evidence in a second appeal. Mere fact that certain evidence is important is not itself a sufficient ground for admitting the additional evidence in the appeal. A party who had ample opportunity to produce certain evidence in the Courts below but failed to do so or elected not to do so cannot be permitted to adduce additional evidence before an appellate Court. That has been the law laid down by the Hon’ble Supreme Court of India in Union of India v. Ibrahim Uddin¹ . In that view of the matter, this Court finds that the endeavour of the appellants in their I.A.No.1 of 2018 (S.A.M.P.No.1 of 2018) is misplaced and is against law and therefore, this application for additional evidence shall be dismissed.

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Coming to the report of the advocate commissioner, both the Courts below held that advocate commissioner failed to consider the document in Ex.B.1 and the report of the advocate commissioner did not really contain the report given by the Mandal Surveyor and therefore, the factual observations made by the advocate commissioner could not be relied upon. The fact that advocate commissioner did not consider Ex.B.1

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1 (2012) 8 SCC 148

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remained undisputed. In such circumstances, any argument based on advocate commissioner and his report cannot be considered by this Court especially when the Courts below validly considered the aspect of facts.

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Thus, before the Courts below plaintiffs completely failed to show plaint ‘B’ schedule property is part of plaint ‘A’ schedule property. At this juncture, one has to notice the prayers made by the plaintiffs in the suit. They sought declaration of title over plaint ‘B’ schedule property and they sought mandatory injunction for removal of the structures raised by the defendants in plaint ‘B’ schedule property and sought permanent injunction to protect their possession over plaint ‘B’ schedule property. The fact that the plaint ‘B’ schedule property has been in occupation of defendants has been undisputed. In such circumstances, plaintiffs have not been in possession of plaint ‘B’ schedule property. Since plaintiffs have not been in possession of plaint ‘B’ schedule property, a relief of permanent injunction concerning plaint ‘B’ schedule property does not hold good. That was the observation of the learned trial Court which was upheld by the first appellate Court also. Though plaintiffs sought mandatory injunction for demolition of

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structures raised by the defendants/respondents, they never asked for delivery of possession of plaint ‘B’ schedule property to them. Then the question arises as to in a suit for declaration of title and mandatory injunction, whether the reliefs could be granted without there being a prayer for recovery of possession of property that has been in occupation of the defendants. Even if the structures raised by defendants are demolished and even if title of plaintiffs over plaint ‘B’ schedule property is declared, that does not serve real purpose for the plaintiffs until they asked for recovery of possession of plaint ‘B’ schedule property. It is in this regard, one must consider what the Hon’ble Supreme Court of India had stated in Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar v. Chandran² . Paragraph No.35 holds the ratio and the same is extracted below:

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“The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The

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2 (2017) 3 SCC 702

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suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit.”

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In that view of the matter, the argument of the learned counsel for respondents has to be accepted to hold that plaintiffs/appellants could not be granted any relief.

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The evidence on record would show that in plaint ‘B’ schedule property defendants had earlier resided in a hut and in the year 2005 they raised the structures and even by the averments in the plaint it has been to the knowledge of the plaintiffs and despite all that plaintiffs never raised a claim for their rights till 2014 when they filed the suit. One who allowed others to trample their rights and raise structures and lived there for a decade and having acquiesced cannot be heard to say that the structures raised are illegal. The indifference on

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part of the plaintiffs for a decade and more allows reasonable thinking persons to believe that what they have been doing is right and not in derogation of rights of others. Therefore, even if all the three substantial questions of law formulated are held in favour of the appellants/plaintiffs they do not enable the plaintiffs/appellants to secure the relief in the suit. Therefore, it has to be stated that the questions raised are not substantial questions of law as the answers to them cannot effect the decisions impugned. In these circumstances, all the points are answered against the appellants.

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In the result, this Second Appeal is dismissed. Accordingly, the impugned judgment dated 19.09.2018 of learned Senior Civil Judge, Mangalagiri in A.S.No.6 of 2015 stands confirmed. There shall be no order as to costs.

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As a sequel, miscellaneous applications pending, if any, shall stand closed.

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Dr. V.R.K.KRUPA SAGAR, J

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Date: 21.12.2023 Ivd

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THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

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SECOND APPEAL No.1807 of 2018