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THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY
SECOND APPEAL No.218 OF 2011
Shaik Rahim S/o.Habibulla
Shaik Nasar Ahmed S/o. Late Ahmed and others
Counsel for the Appellant:Mr. M.V. Suresh
Counsel for the Respondents: None.
This Second Appeal is filed against the concurrent judgments rendered by
the Court of the Principal Junior Civil Judge, Markapur in O.S. No.355 of 1999
and the Court of the V Additional District Judge, Markapur in A.S. No.243 of
2009. The appellant is the 2nd defendant in the suit.
2. The suit was filed by Shaik Imambi and her husband against the
appellant herein and his father (1st defendant), who is no more, for the relief
of declaration of title in respect of suit schedule property, marked as: (a) B C
E D and (b) E F G J. They have also prayed for the relief in the form of a
mandatory injunction for removal of gate fixed at point 'K' in the land. It was
pleaded that they purchased the suit schedule property and other extent through
Sale Deed, dated 21-03-1966, marked as Ex.A-1 and constructed a house on part of
it. The first part of the suit schedule property is a site between a public
road on the eastern side of the house of the plaintiffs and the second part of
it is a land between their house and the Mosque on the southern side. According
to them, the appellant and his father have high-handedly erected a gate opening
into the suit site and are interfering with the enjoyment of the said property
3. On behalf of the appellant, written statement was filed. It was
stated that the suit schedule property is part of the Mosque ever since 1989,
when the owner of the property had settled the same in favour of the Mosque.
The father of the appellant was said to be the Muttawalli of the Mosque.
4. During the pendency of the suit, Shaik Imambi and her husband died and their
legal representatives i.e. respondents herein, were brought on record. The
father of the appellant herein also died and the appellant was treated as his
legal heir. Through judgment, dated
06-07-2009, the trial Court decreed the suit. The appellant herein filed A.S.
No.243 of 2009. The appeal was dismissed on 27-07-2010. Hence, this second
5. Sri M.V. Suresh, learned counsel for the appellant submits that the
trial Court categorically found that there is a vast difference between the
extent mentioned in Ex.A-1, on the one hand and the one found on the ground. He
submits that though the deed of settlement was not filed, the evidence on record
clearly disclosed that the disputed site was being used as an access to the
Mosque. Learned counsel further submits that since the suit schedule property
was being utilized as an access to the Mosque, the respondents were under
obligation to implead the Mosque as well as the Wakf Board in whom it vests and
that suit is bad for non-joinder of necessary parties.
6. While the respondents laid their claim over the suit schedule property on
the basis of Ex.A-1, the appellant and his father pleaded a deed of settlement
of the year 1989 as the base for their rights. The trial Court framed the
following issues for its consideration:
"01. Whether the site shown as B,C,D,E,F in the Plaint Plan is
not a part of the Registered sale deed dt.21.03.1966?
02. Whether the settlement deed dt.19.12.1989 said to have been a executed in
favour D. is true, valid and binding on the plaintiffs?
03. Whether the Plaintiffs are entitled to declare title in the sites shown as
E,G,J,F and B,C,D,E as shown in the Plaint Plan?
04. Whether the Plaintiffs are entitled to the relief of mandatory injunction in
respect of those sties as prayed for in the Plaint?
05. Whether the Plaintiffs are entitled to the relief of mandatory injunction as
prayed for in the Plaint?
7. On behalf of the respondents, PWs.1 and 2 were examined and Exs.A-1 to
A-6 were filed. On behalf of the appellant DWs.1 and 2 were examined and no
documentary evidence was adduced. The trial Court appointed an Advocate
Commissioner and the report and other related documents were taken on record as
Exs.C1 to C5. The suit was decreed as prayed for.
8. The lower appellate Court framed only one point for its consideration,
viz., whether the appellant had established substantial grounds to set aside the
decree and ultimately dismissed the appeal.
9. The principal controversy in the suit revolves around the source of
title for the suit schedule property, as pleaded by the respondents. In a suit
filed for declaration of title and consequential mandatory injunction, two
aspects become necessary. First is that the plaintiff must independently prove
his title over the property without depending upon the weakness of the
defendant. The second is that even if the plaintiff has proved his title, the
defendant can successfully resist the suit in case, he proves a title, which is
superior to the one pleaded and proved by the plaintiff. Many a time both these
aspects are dealt with together and a finding is recorded. In the instant case,
the respondents proved their title by filing Ex.A-1, dated 21-03-1966. Both on
account of the fact that the document is more than 30 years old and that there
is no controversy as to its execution, the document was held proved.10. It is true that there is some discrepancy as to the extent that is
mentioned in the document on the one hand, and the one found on the ground as
measured by the Commissioner. However, the principle that the "boundaries
mentioned in a document would prevail upon the extent and other particulars",
needs to be kept in mind. It is not in dispute that the eastern boundary for
the property under Ex.A-1 is a road leading to Mosque. It means that the
property of the respondents abuts the road. The suit schedule property is a
vacant land between the road on the one hand, and the house of the respondents
on the other. The title of the respondents over the suit schedule property came
to be proved. The appellant could have convinced the Courts below to dismiss
the suit if only he established a superior title to the property. Though a plea
was taken that a deed of settlement was executed in favour of the Mosque in
respect of the suit schedule property, the document was not made part of record.
Thereby, the presumption provided for under Section 114 (g) of the Evidence Act
gets attracted. Even if the document was made part of record, the fact remains
that it is almost a quarter century later to the transaction covered by Ex.A-1.
Viewed from any angle, this Court does not find substantial question of law.11. The Second Appeal is, accordingly, dismissed. There shall be no order as