M Yadagiri and Y.V.Pandurangam and subsequent to the death of Y v. Paldurangam, his legal heirs who are

: Sri J.Prabhakar, on behalf of Sri Aziz Hussain : K K Waghray The Court made the foilowing : JUDGMENT HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA C.C.C.A No. 1O3 OF 2010 JUDGMENT: Aggrieved by the Judgment and Decree Dated 29-O4-2O1O in OS No. 67 of 2005, on the lile of the I Addt. Chief Judge, City Civil Courts, Secunderabad, this Appeal is preferred by the defendalts - appellants.

2. For convenience sake, parties are referred to as arrayed in the suit.

3. Originally, the suit was filed by respondents - plaintiffs for recovery of possession of suit schedule land admeasuring 13 square yards along with two rooms in dilapidated condition and also for permanent injunction restraining the defendants not to block the entry for ingress and egress of plaintiffs in respect of suit schedule property bearing premises No.28 and 29 situated at Picket, Secunderabad. It is stated, plaintiffs are enjoying the suit property as absolute owners and a.[so the legal heirs of thet father S.Hanumantha Rao. As they have been rEre-occupied by their works and they are not in a position to look after the suit schedule property, they executed GPA in favour of one J. Ajay Babu to look after I 2 the suit schedule property and plaintiffs are paying taxes to the Cantonment Board regularly. According to plaintiffs, the suit property is in a dilapidated condition and already some of the portions collapsed and it is not fit for human dwelling. Hence, they are residing separately away from the said property. While so, defendants, who have no right, title or interest in the suit property, trespassed into the same to the extent of 32 square yards. As such plaintiffs hled a criminal case against defendants for their illegal encroachment into the suit schedule property, for which police, Marredpally registered a case in Crime No.7 of 2002 under Sections 448, 384 and 506 IPC. According to plaintiffs, the remaining property of 407 square yards is in their possession and enjoyment. In the entrance, defendants are residing and not allowing plaintiffs to enter into their portion. Plaintiffs further stated that subsequent to the purchase of house bearing Nos.28 & 29. admeasuring 439 square yards by their father, there were 5 tenants in the said premises by name 1) K. Kalavathi, 2l A Paldurangam, 3) T.Raj Kumar, 4) M Yadagiri and Y.V.Pandurangam and subsequent to the death of Y. V. Paldurangam, his legal heirs who are defendants succeeded to the tenancy rights and J continued to occupy a portion of H.Nos. 28 & 29 situated at Ficket, Secunderabad consisting of two rooms on a monthly rent of Rs. 5O/- exclusive of electricity consumption charges It is further stated that from time to time, A. Yadagiri, A. Pandurangam, G. Raj Kumar vacated their respective portions and plaintiffs are in possession and subsequently, as there were disputes and differences between K.Kalavathi and defendants herein, K. Kalavathi committed suicide in 199O, and thereafter her daughter vacated the said portion and handed over possession to plaintiffs ' Plairltiffs stated that during 2002, defendants purchased the house bearing No.30 towards northern side of the suit schedule property and let out the same and thereafter they unlawfully and illegally encroached into the portion consisting of two rooms vacated by Smt. K. Kalavathi. Subsequently, defendants have also encroached another two rooms of the said premises bearing Nos. 28 & 29, situated at Picket, Secunderabad' Since defendants have falsely set up a wrongful claim in respect of the entire suit schedule premises, plaintiffs are entitled to declare them as exclusive owners and Iandlords of the suit schedule property and also entitled for recovery of possession of the suit schedule property. According to plaintiffs, defendants 4 unlawfully trespassed into the suit schedule property, as such, they are liable to pay mesne profits @ Rs. 1,S0O/_ and Rs. 2,OOO/- pm. from the date of suit till the date of recovery of possesslon. .4. Before the trial Court, the case of defendalts is that plaintiffs are not in possession of suit properf5l as on the date of fiJing the suit, and plaintiffs have no cause of action for the suit. Defendants denied that father of plaintiffs was owner and possessor of the suit schedule property and that they are not aware of the death of plaintiffs, father on 74.12.1975 intestate 'as a-tleged. According to defendants, plaintiffs are well aware that they are not having aly valid or subsisting rrghts over the suit property and for that reason, they set up the alleged GpA J'Ajay Babu for the purpose of the present suit- Defendants denied that the entire suit schedule property or any portion of the premises bearing Nos. 28 ar,id.29 is in dilapidated condition and that it is unfit for human dwelling, ald that they have no right title over the suit schedule property, arrd that the ptaintiffs did not state as to when the suit schedule property was encroached by the defendants. Further, when the defendalts are in occupation of the entire property, the question of plaintiffs being in possession of the same does not arise ard 5 plaintiffs have no subsisting right over the suit schedule property. It is also stated, the husband of defendart No.2 ie. Y. V. Pandurangam was in peaceful possession and enjoyment of. the entire suit schedule property even before l95g and the children were born in the schedule premises, and they are in unintermpted ald continuous possession of the suit schedule property for more thal 43 years by exercising all rights of ownership over the suit schedule properfy and they perfected their title by way of adverse possession to the knowledge of the entire world including the plaintiffs herein to more than the statutory period. Being the owners, they carried out necessary repairs arrd affecting changes to the root and also letting out the portions to various tenants from time to time. Further, one of the cousins of defendant No.2 by name V.V.R.B.G.Tilak, son of Sri Y. Rama Rao was also living in the suit propert5r and the alleged GPA of the plaintiffs approached defendants taking advantage of his closeness to the deceased son of defendarrt No 2 informing that he had good contacts with the officials of Cantonment_ Board and he would get the necessal/ permission for making pucca constructions over the suit schedule property. Trusting the said GPA Holder of plaintiffs, defendants handed i I I l I I over the tax receipts and bills in respect of the suit schedule property to him in good faith and the said GPA Holder bY created the documents and GPA' colluding with the Plaintiffs Ort 28.4 -2OO2 the plaintiffs attempted to dispossess defendants from the suit schedule property' as such the cause of action arose for counter-claim to the defendants' Therefore' defendants prayed this Court to grant permanent injunction restraining the plaintiffs from interfering with their peaceful possession and enjoyment over the suit schedule property' Plaintiffs frled rejoinder stating that defendants 5. have no right or title' originally their father was the owner of suit schedule property having purchased under a registered document and after his death they succeeded to the property' husband of defendant No 2 was a According to them' the documents bY mentioning the tenant and he created arrd 29 , Picket, Secunderabad' address of Premises No' 28 plaintiffs stated that normally, where the tenants reside in the houses of owners show the address where they reside at the time of school admission' letter correspondence' electncity bills' telephone bills, tax receipts and also obtaining ration card' voter list, even in death certificates' and in the sarne marrner' defendants mentioned premises bearing No' 28 and 29 and 7 made correspondence with the authorities which will not give any title to defendants over the suit schedule property against the real owners. Plaintiffs denied that defendants perfected their titie by way of adverse possession and also denied that they are in possession of the suit schedule property for more than 43 years. Plaintiffs a-lso denied the allegation that they created the documents with the help of their GPA Holder, J.Ajay Babu and filed the fa-lse suit.

6. Initially, the Trial Court framed the following issuers for consideration : 1) Whether plaintiffs are entitled to the relief o[ recovery of possession of lald admeasuring 13 sq. yards? 2) Whether plaintiffs are entitled for the relief of permanent injunction? 3) Whether the defendants are entitled fon the relief of permanent injunction restraining the plaintiffs from interfering with the defendants peaceful possession and enjoyment of the counter-claim schedule property?

7. During the pendency of suit, plaintiffs got amended the plaint and also sought for relief of declaration and for recovery of possession to an extent of 439 sq. Yards arld they a,lso claimed damages @ Rs.2,000/- from the defendarts for unlawful occupation of the suit premises. After amendment, i t ,L \i-r 8 defendants have not filed their additional written statement though this Court has granted sufficient time 8 Therefore, the trial Court framed the following additional issues l) Whether plaintiffs are entitled for declaJation that they are the exclusive owners and landlords of the suit schedule property bearing lrouse No. 28 and 29, admeasunng 439 sq- yards situated at Picket, Secunderabad? 2) Whether plaintiffs are entitled for recovery of possessron of the suit schedule property from the defendants? 3) Whether the ptaintiffs are entitled for recovery of damage:; / mesne profits (n, Rs.2,O00/ p.m. from the defendants for unlawful use and occupation of the suit schedule premises from the date of suit ti.ll the datc delivery of possession to the plaintiffs? 9. The tria-l Court, after considering the evidence of P.Ws.1 to 3 and Exs.Al to A4l on behalf of plaintiffs and D.W. I and Exs.Bl to B.13 on behalf of defendants and Exs.Xl to X5 marked through P.W.3, observed as under: " 2a. After amendment was carried out, the vah.re of the reliefs sought in the suit crossed the pecuniaqr jurisdiction of XMI Junior Civil Judge and the said Court returned the suit on ll.7.2OO5 for presenting before proper Court. Accordingiy, ttre plaintiffs tiled the present suit before this Court by paying the additional court tee as required. After receiving ttre case tile in OS No L64/2OO2 from the XVIII Junior Civil Judge, this Court numbered the suit as OS No. 6712005.

29. In the origina-l v/ritten statement the defendants have taken the plea of adverse possession but claimed the relief o[ injunction. Further after the amendment was carried out and the plaintiffs sought for the relief of declaration and recovery of possession o[ the entire property admeasuring 439 sq yards the defendants had not tiled any additional written statement denying the pleadings of the amended plaint. When the original written statement was hled by the defendants, the plaintills tiled rejoinder denying the allegirtrons made in 9 the written statement filed by the defendants regarding adverse possession Admittedly, the defendants in the written statement though pleaded about adverse possession, they have not paid the court tee and paid the court tee only for the relief of injunction. As the matter stood thus, the defendants have not challenged the reliefs claimed by the plaintiffs for declaration that they are the exclusive owners of the suit schedule property admeasuring 439 sq. yards and for recovery of possession of the same, and a.lso def gralt of mesne profits

30.As on today, the case of the plaintiffs is that their lather S. Hanumantha Rao was the origlnal owner of the entire suit schedule property bearing No. 2A &, 29, adrheasuring 439 sq.yds. Having purchased under a registered Sale Deed under Ex A-1 in the year l94O and he let out some of tJle rooms to the tenants including the father of the defendants Y.V. Pandurangam. As per the documentary evidence, he made an application for mutation to the Cantonment authorities under Ex A-23 in the yeal 1944 and a fresh assessment was issued by the Cantonment Board under Ex A-24 in the year 1957. As per Ex.A-2, Ex A-3, Ex A-4, Ex.A-S, Ex A-7, Ex A-8, Ex.A-12 1O Ex. A-17, the father of plaintiffs paid the property tax. It is the evidence of plaintitfs that in the year 1959 when their father made unauthorized constmctions, the Cantonment Board issues demolition notice and their father issued an objection arrd reply on 13.9 1959 It is an admitted fact that PW 3 is the son of one A.Paldurangam who was one of the tenants in the suit schedule property a-long rrith Smt. K. Kalavathi arrd others. It is a-lso an admitted fact.that Smt. K. Kalavathi comrnitted suicide in the year 1990 due to t-l-re harassment of the defendants arld therea-fter her daughter vacated the schedule premises According to the plaintiffs, after vacating the two rooms held by Smt. K.Kalavathi, the defendants illegally occupied the same In the evidence of PW 3 it was not suggested that his father was not the tenant in the suit schedule property and a-lso not suggested that they were tenants of the defendants. Since there is no denial about the ownership of the plaintiffs for the m property of 439 sq.yds in the house No.28 & 29, Vtcket, Secunderabad, plaintiffs, no doubt, are entitled for declaration ald for recovery of possession of the suit schedule property. \ i0

31. Defendants also hled Exs. B-12 and Ex B-13 which are receipts issued by the Executive Officer, Cantonment Board and as per the said documents it is evident that they received the amounts from the father of plaintiffs. These documents are pertaining to the year 1995 ald 2OO2- lf the defendants perfected their title by way of adverse possession, the same is also not established with respect to adverse possession by them There is no other document hled by the defendants to show that they perfected their title by way of adverse possession over the suit schedule property. It really the defendants are the owners of the suit schedule property, it is not explained as to how they allowed to issue property tax receipts in the name of plaintiffs father and why they have not objected while issuing Exs. B-12 and Ex.B-13 in the name of plaintiffs' father. This shows that the defendants are aware that plaintiffs' father was the original owner of the entire suit schedule property-

32. The other contention of the defendants that they got repaired the suit schedule property ard let out the property IO tenants, is without any evidence. Further, the burden is on the defendants to prove that they perfected their title by way of adverse possession, but the said burden was not dispatched by proving from which year, on what date, in which month they perfected their title by way of adverse possession arld the original Written statement tiled by the defenda:nts is a-lso silent on these aspects.

33. Now it has to be seen whether how far the defendants proved their case regarding their title to the suit sihedute property by way of adverse possession. Their claim is for the last 58 years they a-re in possession of the suit schedule property admeasuring 439 sq.yds and they are exercising all the ownership rights in respect of the suit schedule property. In the cross-examination defendant No. 1 admitted that they have not Iiled any documents such as electoral roll, voter identity card or 1.D. issued by employer of his uncle YVRGB Tilak who was also in possession of the suit schedule property along with the defendants DW 1 further admits that he has not tiled any document prior to 1946 such as bills issued by Electricity Board Ta-x Assessment Card or Property Tax bills to show that their lather was in possession of the property for more than 75 yeaJs According to Dw 1, they let out ,ry, .:/ n some portions to the tenants but the same could not established because he has not tiled any documentar5r euidence regarding the particulars of the tenants and also the quantum of rent paid by them DW I also admits that he has not tiled any bills or receipts issued by the cantonment Board for paJrment of propert5r tax in respect of the suit schedule property subsequent to independence, and admits that Ex B_ i2 and Ex B-I3 tax receipts shows the name of the father of the plaintiffs by name Hanum Han umantha Rao was #:i"T: :1;,"j:"::T",T,i:;ff J :: made any objection in issuing the receipts in his name. Dw. 1 does not know that in the year 1940 plaintiffs, father S. Hanumantha Rao purchased the suit schedule property under a registered SaIe Deed and the suit schedule property is having door No.3_1-14. DW. 1 also does not know whether the plaintiffs, father appried ro ca,tonment Board for carrying out repairs to the suit schedule property and also Dw. I does not know the name of the father of the plaintiffs S.Hanumantha Rao was mutated in the municipal records DW I also calnot say the date and month on which his father occupied the su.it schedule property. Likewise, DW. t has no documentary evidence to show that his grand parents were in occupation of the suit schedule property, and further stated that he has not tiled any rent receipts to show that they have collected the rents from the tenants in occupation of the suit schedule property, aIId admits that one Ka-lavathi was in occupation of another portion of suit schedule property as tenaht of plaintiffs a-nd she committed suicide due to disputes with them.

34. From the evidence of DW I it is clear that they have no documentarJr evidence to prove that they are in possession of the suit schedule property since 5g years and they perfected their tifle by way of adverse possession. Further, the documents Ex B_12 and Rx.B_13 themselves show that they were issued in For this name of the plaintiffs father S Hanumantha Rao discrepancy also the defendants are unable to explain arld further they have not made any objections to the concemed authority ie.. Caltonment Board. Apart from the evidence of DW 1 there is no other evidence to prove that they perfected their title to the suit schedule by way of adverse possession the other hald, pW 3 is the independent \Mitness categoricarly stated that his father and father of i t2 the defendalts were tenants in the suit schedule property ald in the year 1998 he vacate the said premises. From the evidence of pW 3 nothing has been elicited to disprove the plaintiffs, contention by the defendalts.

35. The oral evidence of pWs 1 to 3 coupled with documentarjr evidence clinchingly proves that the plaintiffs father purchased the suit schedule property in the year l94O under Ex A_I and the said property is bearing No.28 & A situated at picket. Secunderabad and the defendants tailed prove their title by way of adverse possession. Therefore, ptaintiffs proved that they are the exclusive owners of the s schedule property and hence they are entided for declare that they are the exclusive owners of the suit schedule proper ald also they are entitled for recovery of possession of the s schedule property from the defendalts.

36. Plaintiffs also claimed damages @ Rs.2,OOO/- pm for unauthorized use and occupation of the suit schedule property by the defendants- As the ptaintiffs proved their title to the suit schedule property and they are entitled for recovery of possession, the defendants have to pay the damages/mesne profits for their unauthorized use and occupation of the suit schedule property_ So far as deciding the quantum of damages/mesne profits is concerned, it has to be decided in a separate application ti1ed by the plaintiffs U/O 20, Rule 12 CpC Hence these issues are answered accordingly, in favour of the plantains and against the defendants.,,

10. In view of framing of additional issues, the Trial Court observed that there is no need to discuss about Issues 1 to 3.

11. Sri J. Prabhakar, learned Senior Counsel on behalf of Si Aziz Hussain, learned counsel for appellants submits that the Court below ought to have seen that the relief of declaration and possession by the plaintiffs could not have been granted in l3 view of their pleadings that defendalts are tenants in the portion of suit property consisting of 2 rooms, on a monthly rent of Rs 50/-, and if the said allegation of plaintiffs is true, that possession cannot be granted in view of the tenancy being covered under Andhra Pradesh Buildings (LR&E) Act, and civil Courts would have no jurisdiction to grant the relief of possession. It is submitted that the Court below ought to have seen that either in the original plaint or in the amended plaint, there is no mention of the alleged trespass by the defendants, hence, the suit ought to have been dismissed for want of cause of action, in terms of Order 7 rule l1 CPC. Learned Senior Counsel submits that plaintiffs must file suit for possession within 12 years from the date of their dispossession and in this suit, when plaintiffs were dispossessed from the suit property was not known. According to Iearned Senior Counsel, defendants are in possession of the suit property for more than 60 years. It is submitted that the evidence of PW- 1 categorically states that tenants in the suit property were the tenants of Defendants and they were paying rents to defendants and plaintiffs have not frled a-ny documents to prove contra. The Court below ought to have seen that after amendment of the suit, the relief of defendants for perpetual injunction was not considered, even though defendalts have 14 prayed for such relief, by paytng the court fee' as could be seen from the original issues framed by the trial court' before its transfer, laments learned Senior Counsel' Learned Senior Counsel relied on the judgment of the Hon'ble Supreme Court in Deoasahagam u' P' Santithramrnar and contends that if the defendants are tenants, as stated by plaintiffs, suit for eviction under the Andhra Pradesh Buildings (Lease, Rent arrd' Eviction) Controi Act, i960 would lie before a Rent Controller and not before a civil court. In terms of the proviso appended to Section ro1i1 or the said Act before the parties can pursue their remedies in a civil Court, a Rent Controller is required to arrive at a finding as regards the bona fides or otherwise of the claim of the tenant' He also relies on the judgment of the Hon'ble Supreme Court in Thatagil So;ro,da o' Govindan2 ald submits that since plaintiffs were allowed to amend the plaint' defendants ought to have been given opportunity to file an additional written statement before passing a decree or order' Inthiscase,theCourtbelowhasnotgivensuchanopportunity to his clients, contends learned Senior Counsel' ' (2005) 7 scc 653 '(1983)zscc276 /./ l5

12. On the other hand, Iearned counsel for respondents - plaintiffs Sri K.K. Waghray, submits that the judgment under Appeal was passed by the learned Judge after full-fledged trial, hence, no interference is warranted. He also placed reliance on the judgment of the Hon'ble Supreme Court in T. Anianappa a' Somalingappa3 and submits that since possessor was not sure, claim of adverse possession is not maintainable' To the same effect is the judgment of the Hon'ble Supreme Court in Shri tlttam Chand u, No.thu Ro:rna. Leartted counsel also relied on the judgment of the Hon'ble Supreme Court in Premier Tlres Limited v. Kerala State Road Transport Corporations to contend that where two connected suits tried together and hnding recorded in one suit became fina-l in absence of appeal, appeal preferred against the finding recorded in the other suit would be barred by res judicata. Having heard learned counsel on either side and

13. having perused the material on record, including evidence adduced on behalf of the parties, it is clear that Appellants are Defendarrts in the suit bearing O.S. No 67 of 2OO5 filed by Respondents - Plaintiffs. Originally, the suit was filed for recovery of possession of an extent of 13 Square yards from out r (2006) 7 scc 570 o AIR 2o2o sc 461 ' 1993 supp (2) scc 146 * t6 ._-,1 of total extent of the property bearing H. Nos. 28 and 29 situated at Picket, Secunderabad admeasuring 439 Square Yards and that suit bears O.S. No 164 of 2OO2 on the hle of karned XI Junior Civil Judge, City Civit Court, at . Secunderabad. Since Defendants encroached and took illegal possession of the entire extent of suit propert5r admeasuring 439 Sq. Yds., I.A. No. 113 of 20O4 was tal<en out for amending the plaint and also the prayer portion in the plaint seeking relief of declaration of title and recovery of possession. The said Application was dismisse d on 28.04.2004, as against which, Plaintiffs Iiled Civil Revision Petition No, 4888 of 2OO4 and it was allowed on 23.03.2005. Thereafter, in view of the pecuniar5r jurisdiction, the suit was renumbered as O.S. No.67 of 2005 and allotted to learned I Additiona_l Chief Judge, City Civil Courts at Secunderabad.

14. The case of Plaintiffs is that their father, S.Hanumanth Rao purchased the suit property ie., H.No.28 & 29, situated at Picket, Secunderabad admeasuring 439 Sq Yds., under registered sa-le deed bearing document No.9O1 of 1940, dated 13.12.1940 from its vendor L. Satyanarayala, and ever since the Plaintiffs father was in possession and enjoyment of the property. He died intestate on 74 02.197 5, as such plaintiffs t1 succeeded to the property. The propert5r was let out to 5 tenants and they were staying in difference portions namely 1. Kalavathi, 2. A.Pandu Rangam, 3. T.Rajkumar, 4. M.yadagiri and 5. Y.V.Pandu Rangam. Subsequently the tenants vacated the premises. Defendants were L.Rs of the deceased tenant Y.V.Pandu Rangam and they acquired the adjacent property bearing House No.3O. Since they illegally and unauthorizedly took possession of the entire suit property on 76.01.2002, art F.l.R No.7 of 2OO2 was registered against them by Marredpally Police. Whereas, Defendants denied title of father of Plaintiffs and also a-ileged that Piaintiffs are not having any valid or subsisting rights over the suit property. They claimed possession even before 1958 and set up a case of perfecting their title by adverse possession and thus in the counter claim they sought the relief of injunction for protecting their possession. I I

15. During the pendency of Appeal, Appellant No. 2 died and Appellant No. I is the son of Appellant No 2, who is the sole Appellant now in the appeal. Further, Respondents L,2 and 4 also die.rl. Respondents 5 to 7 are L.Rs. of Respondent No.1. Respondents 8 to 10 are L.Rs of Respondent No.2. Since l8 Respondent No 4 died issueless and was a Bachelor' hence no steps are taken against him'

16. Here, it is to be noted that title of Plaintiffs traces backtolg4ounderEx.A-1-registeredsa]edeed;thereafter, mutation proceedings were issued in favour of Plaintiffs father on 28.07 .1944 under Ex. A-23 The propertlr ta-x being paid from 1975 till 2006 exhibited as A-2 to A-17' Exs' A-24 to A-41 are assessment order, notices issued by the authorities' tax receipts issued by the MCH all covering period from 30 08 1959 to 05.05.2008. Thus, Exs. A-1 to A-41 establish title of Plainiiffs fromlg40onwardsandthesameissubstantiatedbyevidence of PWs. 1 to 3. On the other hand, Exs' B-1 to B 72 hled by t7. Defendants are a,ll electoral card, birth certihcate' death certificate, telephone booth, etcetera' Thus, defendants have set up a plea of adverse possession in their written statement without admitting the title of the owner, as such the plea of adverse possessron ls not sustainable' None of the documents frled by defendants establishes their alleged claim apart from that they failed to speciff as to how they establish the alleged claim of ad.verse possession, more particularly when there is a documentary and oral evidence produced by Ptaintiffs Further' :/' a't' t9 the evidence of DW-i is contradictory on the count that in the written statement they alleged possession from 195g wherein in the evidence they claim possession frorn 1942. The trial Court gave specific hnding in favour of plaintiffs and against Defendants. It noted that as on today, the case of piaintiffs is that their father S. Hanumaltha Rao was the original owner of the entire suit schedule property bearing No. 2g & 29, admeasuring 439 sq.yds. having purchased under a registered Sale Deed under Ex A-1 in the year l94O and he let out some of the rooms to the tenants including the father of the defendalts Y.V. Pandurangam. As per the documentary evidence, he made an application for mutation to the Caltonment authorities under Ex A-23 in 1944 and. a fresh assessment was issued by the Cantonment Board under Ex A-24 in 1957. As per Ex.A_2 to 1'5, A-7, A-8, A-12 to A-17, the father of plaintiffs paid the property tax.. It is the evidence of plaintiffs that in 1959 when their father made unauthorized constructions, the Cantonment Board issued demolition notice and their father issued an objection arrd reply on 13.09.1959. It is arr admitted fact t-hat PW 3 is the son of one A.pandurangam who was one of the tenants in the suit schedule property along with Smt. K. Kalavathi and others. It is also an admitted fact that Smt. K. Kalavathi committed suicide in 1990 due to the harassment of t .* t 20 -- - ,t defendants and thereafter her daughter vacated the schedule premises. According to plaintiffs' after vacating two rooms held by Smt K.Kalavathi, defendants illegally occupied the same' In theevidenceofP.W.3,itwasnotsuggestedthathisfatherwas not the tenant in the suit schedule property and also not suggested that they were tenants of the defendants Since there isnodenialabouttheownershipofplaintiffsforthepropertyof 43g sq.yds bearing House Nos' 28 and 29 ' Picket Secunderabad, piaintiffs' no doubt' are entitled for declaration and for recovery of possession of the suit schedule property' In the judgment relied on by learned counsel for the 18. respondents rt' Premier Tgres Limited's case (supra) it has been held that effect of non-filing of appeal against a judgment or decree is that it becomes final' This hnality can be taken away only in accordance with law' Same consequences follow when a judgment or decree in a connected suit is not appealed from. Thus the finality of finding recorded in the connected suit' due to non-filing of appeal' precluded the court from proceeding with appeal in the other suit' In this case' defendants though taken a counter-claim to grant permanent injunction restraining plaintiffs from interfering with their peaceful possession and enjoyment over the suit schedule property and the trial Court ,;,:., t \ 21 did not answer the same in view of the lindings given in additiona-l issues, the defendants have not chosen to challenge the same by frling a separate Appeal against rejection of counter claim, as such, the present Appeal is also barred by the principle of res judicata.

19. Further, in Ninno,la Deti's case (supra), the Honble Supreme Court heid that .No specific issue of counterclaim was framed by trial Court though onus was fastened upon defendalts and no hndings were given by trial Court independently on issue of counter-claim, High Court in Second Appeat regarding claim of ownership remitted matter to trial Court on ground that counterclaim not decided. However, issue in counter-claim pertained to denial of ownership of plaintiff and assertion of same by defendants, therefore, plaintiff was well aware that there was refutation of his claim. Counterclaim held was not in that way an indecent claim. In view of the aforesaid, High Court should have been well advised to dwell upon merits of the case and should not have remanded matter to tria_l Court. Order of High Court set aside and High Court directed to adjudicate Second Appeal in accordalce with law'.

20. In view of the foregoing discussion, this Court does not find any reason to interfere with the findings recorded by the trial Court. The Appeal therefore, is liable to be dismissed.

22. The Appeal is accordingly, dismissed. No costs. Consequently, Miscellaneous Applications, if any shall stand closed. /ITRUE COPY'/ SD'- K. SRINIVASA RAO JorNr:EGrrR / sEcrlQN oFFICER To, 1 . The 1st Additional Chief Judge' City Civil Court' Secunderabad ;. il bt to snrAzlz HUSSAIN Ad'vocate toiug] ;. 5;;6c i" sir K KWAGHRAY Advocate [oPUCl 4. Two CD CoPies Svs/gh Y\- ,l t I HIGH COURT DATED:2810512025 I 1H: S] ..-- o -.:/ .tls' ?B JtJ}l 206 { )a.- r'.,iiC ,nt-O t )r. * ). f,( c ^./ +j JUDGMENT GCGA.No.103 of 2010 DISMISSING THE CCCA 6qq'a frt"