Judgment : 1. 1. This appeal is filed by the unsuccessful defendants in O.S.No.206/82 on the file of I-Additional Subordinate Judge, Visakhapatnam. It is stated that the 2nd appellant is the wife of the 1st appellant and the 1st appellant is no more and the 2nd appellant is the legal representative of the 1st appellant. Respondent is the plaintiff in the said suit. The suit was filed for declaration of title, relief of perpetual injunction and an alternative relief of possession as well. The learned I-Additional Subordinate Judge, Visakhapatnam, in the light of the respective pleadings of the parties, having settled the issues, recorded the evidence of P.Ws. 1 and 2 and D.Ws. 1 to 4, marked Ex.A.1 to Ex.A.7, Ex.B.1 to Ex.B.10, Ex.X.1 to Ex.X.5 and after recording reasons, came to the conclusion that the plaintiff is entitled for the reliefs prayed for and accordingly decreed the suit. Aggrieved by the same, the unsuccessful defendants had preferred the present appeal. 2. 2. Submissions of Sri Ram Mohan, the learned Counsel for appellants:- Sri Ram Mohan, the learned Counsel Revision representing the appellants had taken this Court in detail through the oral and documentary evidence available on record and would maintain that the fact that the lis has been pending being not in serious controversy, the sale deed relied upon by the plaintiff is hit by the doctrine of lis pendens since Section 52 of the Transfer of Property Act would be applicable. The Counsel also would maintain that the plaintiff is not examined but the husband of the plaintiff was examined as P.W.1 and the scribe of Ex.A.1 was examined as P.W.2 and that there is yet another sale deed in favour of P.W.1 also. The learned Counsel also made elaborate submissions relating to the layout plans and how the agreement was initially entered into with the original owner for undivided 1000 Sq.Yds., and how the sale deed was executed giving the specific plot number in the approved layout and how delivery of possession also was effected in pursuance of the decree and how the findings recorded by the trial Court cannot be sustained. The learned Counsel also would maintain that the meaning of pendency had not been appreciated by the trial Court in proper perspective and the doctrine of lis pendens is not confined and restricted to what she had prayed for in the suit which was only tentative in view of the fact that the agreement in her favour was for the undivided 1000 Sq.Yds. in Sy.No.62/2 and further the decree made and the full satisfaction recorded in relation to the said decree may have to be taken into consideration for the purpose of appreciating whether doctrine of lis pendens would be applicable to the facts of the case or not. The learned Counsel while further elaborating his submissions had taken this Court through 'A' series and 'B' series and also 'X' series documents as well. The Counsel also would maintain that the prior suit was for undivided 1000 Sq.Yds. in the total extent of about more than 4 acres in Sy.No.62/2. Further the learned Counsel also would maintain that she would not have expected the location where her plot number for 1000 Sq.Yds. would come in Sy.No.62/2 and hence she prayed for plot Nos.15 and 16 and after the suit was decreed, she was given plot No.13 in the approved layout in complete satisfaction and discharge of decree in her favour. The Counsel also would maintain that by the time she instituted the suit O.S.No.431/69 on 4-8-1969, the plaintiff did not purchase the property. Further, the learned Counsel would maintain that the plaintiff purchased plot No.14 after the institution of the suit. As the plaintiff purchased only part of Sy.No.62/2, plot No.14 after the suit was instituted, the doctrine of lis pendens would be operative in respect of the sale in favour of the plaintiff. Hence, the learned Counsel would maintain that unless the rights of the 2nd defendant are left out and she got full satisfaction of the decree in her favour, the doctrine of lis pendens would be operative. The learned Counsel laid emphasis on the fact that the Decree was fully satisfied and delivery of plot No.13 in the sanctioned layout, though it was for a lesser extent. The learned Counsel laid emphasis on the fact that the Decree was fully satisfied and delivery of plot No.13 in the sanctioned layout, though it was for a lesser extent. The Counsel also would maintain that merely because the trial Court assumed that plot No.14 purchased by plaintiff is plot No.13 in the sanctioned layout which in fact D.2 obtained delivery, the trial Court cannot grant declaration and recovery of possession for plot No.13 of the sanctioned layout when the sale deed of the plaintiff was plot No.14 with different boundaries but not for plot No.13 in the sanctioned layout in possession of D.2. The learned Counsel also placed reliance on certain decisions to substantiate his submissions. 3. Submissions of Sri T.S.Anand, the learned Counsel for respondent:- Sri T.S. Anand, the learned Counsel representing respondent, on the contrary, would maintain that no doubt the suit O.S.No.431/69 was filed on 4-8-69 but the plaint was rejected on 12-8-1969 and Ex.A.1 is dated 16-8-1969 and thus as on the date of institution of the suit, the date on which the plaint in fact had been registered i.e., in the month of November, 1969, when the suit in fact was numbered, by that time itself, Ex.A.1 was executed and in the light of the rejection of the plaint and inasmuch as no suit was pending at the relevant point of time, the doctrine of lis pendens would not be applicable. The learned Counsel also explained the stages in the presentation of the plaint and the relevant dates and would further maintain that though the decree was prayed for an undivided extent of 1000 Sq.Yds., the decree was granted for plot No.16, but the sale deed was taken for a different plot number and hence it cannot be said that Section 52 of the Transfer of Property Act would be applicable, inasmuch as the condition that right to immovable property to be directly and specifically in issue to make the doctrine of lis pendens applicable, had not been satisfied. The learned Counsel also had taken this Court through the oral and documentary evidence available on record and also would maintain that P.W.1 -the husband who has knowledge about all the facts had clearly deposed about the relevant facts and hence the mere non-examination of the plaintiff may not be fatal to the case of the plaintiff. The learned Counsel also had taken this Court through the oral and documentary evidence available on record and also would maintain that P.W.1 -the husband who has knowledge about all the facts had clearly deposed about the relevant facts and hence the mere non-examination of the plaintiff may not be fatal to the case of the plaintiff. Further, the learned Counsel had taken this Court through the findings recorded by the trial Court and would maintain that in the light of the clear findings recorded by the trial Court, there are no grounds in this appeal to interfere with such findings. The learned Counsel also placed reliance on certain decisions to substantiate his submissions. 2. 4. Heard the Counsel. 3. 5. Inthe light of the submissions made by the Counsel on record, the following points arise for consideration in this appeal:- 1) Whether the findings recorded in relation to the applicability or otherwise of the doctrine of lis pendens, Section 52 of the Transfer of Property Act are sustainable in law or liable to be disturbed in the facts and circumstances of the case? 2) Whether the relief of declaration of title, injunction and delivery of possession granted by the trial Court be sustained in the facts and circumstances of the case? 3) If so, to what relief the parties would be entitled to? 6. Points 1 and 2:- For the purpose of convenience, these points may be discussed together and the parties hereinafter would be referred to as plaintiff and defendants as shown in O.S.No.206/82 aforesaid. Before taking up the further discussion, it may be appropriate to have a look at the averments made in the respective pleadings of the parties. 2. 7. The plaintiff averred in the plaint as hereunder:- "The plaintiff purchased vacant site of an extent of 785.33 Sq.Yds. covered by plot No.14 of the lay out approved by the Director of Town Planning, Hyderabad in T.P.No.57/65 C.P.No.13787/68 D-5 and T.P.No.15 of 69 situated in S.No.62/2 of Block No.6 Waltair Ward of Visakhapatnam town from Sri Andra Harihara Gara Pratapraju, Zaminder of Andra under the terms of a registered sale deed dated 16-8-1969 (Sixteenth of August, nineteen hundred sixty nine). The said property is more fully described in the schedule appended hereto. The plaintiff prays that the same may please be read as part of this plaint. The said property is more fully described in the schedule appended hereto. The plaintiff prays that the same may please be read as part of this plaint. The total extent of the land owned by the vendor in Sy.No.62/2 was Ac.4.15 cents of 1.6800 hectors. He laid the said land into nearly twenty plots after providing for roads etc., got the same approved and sold plots to the plaintiff and several other persons. The plaintiff is filing a photostat copy of the said sale deed dt.16-8-69 executed in her favour. The plaintiff was put in possession of the schedule property on the day of the sale deed and the plaintiff has been ineffective and exclusive possession of the same ever since till this day, exercising rights of ownership, enjoyment and possession over the same. While so, the plaintiff and her husband came to know two days ago that the defendants stacked a few cart loads of sand and stone just by the side of the schedule property and were proclaiming to construct a compound wall in the schedule site belongs to the plaintiff. The first defendant informed him that they obtained a sale deed recently and under which a major part of the schedule property was purchased by them. He did not however given any details regarding the same and was reluctant to show any of his document, though the plaintiff's husband showed him the sale deed in favour of his wife. The plaintiff submits that her vendor, who was the lawful owner of the land divested of his title to the plaint schedule property on and from, 16-8-1969 when he executed the sale deed in favour of the plaintiff and any sale executed by him or anyone claiming through him subsequently would not confer title on the vendee. Further the plaintiff has been in affective possession and enjoyment of the schedule property in her own right for over the statutory period and perfected her title to the same by adverse possession also. Any sale deed in favour of any or both of the defendants would not be valid and binding on the plaintiff and would not confer title on the defendants. The plaintiff submits that neither of the defendants has any right, title or interest in any part of the schedule property. Any sale deed in favour of any or both of the defendants would not be valid and binding on the plaintiff and would not confer title on the defendants. The plaintiff submits that neither of the defendants has any right, title or interest in any part of the schedule property. The plaintiff and her predecessor in title have been in effective possession and enjoyment of the schedule property, at all relevant times and even now. The defendants attempt to interfere with the possession of the plaintiff is highhanded, unlawful and without any right. The defendants are asserting title to the schedule property without any tenable right or basis and are trying to interfere with the plaintiff's possession of the schedule property. Hence, this suit for declaration of her title to the property and for a consequential injunction restraining the defendants, their men and agents from ever interfering with her possession." 8. Theplaint schedule is as hereunder:- "Vacant site measuring 785.33 Sq.Yds. or 656.364 Sq.Mts. covered by plot No.14 of the approved layout in S.No.62/2 in Block No.6 of Waltair Ward of Visakhapatnam Town and bounded as follows:- East : site covered by plot No.15 of the layout South : 30 feet road. West : Site covered by plot No.12 purchased by Sri Prasad Rao and Plot No.13. North : Site belonging to the Andhra University. Measurements: East : 168 or 32.92 mtrs. South: 68 or 19.81 mtrs. West : 100 or 33.22 mtrs. North : 65 or 19.81 mtrs. 2. 9. In the written statement filed by the 2nd defendant, the following averments were made:- "The allegations in plaint para 3(a) that the plaintiff purchased the vacant site of 785.33 Sq.Yds. covered by plot No.14 of layout approved by the Director of Town Planning in T.P.No.57/65 and T.P.No.15/69 in Waltair Ward of Sri Andra hariharagara Prataparaju, Zamindar of Andra under the terms of a registered sale deed dated 16-8-1969, that the total extent of 4 acres 15 cents was laid out into nearly 20 plots by the said Pratap Raju and got the same approved and sold the plots to the plaintiff and others are not true, correct, valid and tenable. The plaintiff is put to strict proof of the same. The plaintiff's sale deed and the plaint are collusive documents got executed to the detriment of this defendant. The plaintiff is put to strict proof of the same. The plaintiff's sale deed and the plaint are collusive documents got executed to the detriment of this defendant. The description of the said property given in the plaint schedule is not correct. The plot No.14, as per the approved plan is not within the boundaries mentioned in the plaint schedule. As per the approved plan plot No.14 is bounded on the East by plot No.15 on the west by plot No.13. The original approved plan obtained from the Urban Development Authority was already filed by this defendant along with her counter affidavit in I.A.No.573/82. The allegations in para 3 (b) of the plaint that the plaintiff filed a photostat copy of her sale deed dated 16-8-69, that the plaintiff was put in possession of the schedule property on the date of the sale deed and has been in effective and exclusive possession of the same ever since that day exercising rights of ownership enjoyment and possession are not true, correct, valid and tenable. In fact, this defendant's husband viz., the first defendant was supplied with a photostat copy of the sale deed dated 24-7-69 executed by the said same vendor in favour of the plaintiff's husband along with a plan attached to it. In that registered plan of the plaintiff's sale deed dated 24-7-69 executed by Pratapa Raju the correct locations of plot Nos.12, 13 and 14 were given. A photostat copy of the said sale deed which was served on us filed by us along with our counter affidavit in I.A.No.573/82 and it may please be read as part of this written statement. It is really not known as to how an approved plan becomes different within a span of 22 days between 24-7-69 and 16-8-69. The facts mentioned hereafter will disclose the manipulations that have been made by the plaintiff, her husband viz., Sri A.R.Subrahmanyam and their legal advisers with a view to defraud and commit fraud on the defendant and other people in whose favour the said same vendors have executed agreements of sale. As long back the year 1966 the plaintiff's vendor executed an agreement to sell in favour of this plaintiff and received almost all the consideration except for a small portion agreeing to sell the plot that is chosen by this defendant in her favour. As long back the year 1966 the plaintiff's vendor executed an agreement to sell in favour of this plaintiff and received almost all the consideration except for a small portion agreeing to sell the plot that is chosen by this defendant in her favour. As the plaintiff's vendor failed to execute the sale deed this defendant filed a suit in the Court of the District Munsif, Visakhapatnam in O.S.No.431/69 on 4-8-69. Having come to know of the institution of the suit O.S.No.431/69 the plaintiff's husband and her vendors colluded together to cause loss to this defendant and must have brought into existence the present sale deed dated 16-8-69 within an incorrect and wrong plans. To buttress this and to cause further loss to this defendant the sale deeds were also brought into existence even inspite of the pendency of the suit. Whatever it might be all the sale transactions subsequent to 4-8-69 are hit by Section 52 o6t Transfer of Property Act and as such the transactions lis pendency and not legal and binding on the plaintiffs on instituting suits prior to 16-8-69. This defendant's suit was decreed in the year 1979 and this defendant filed E.P.No.510/79 for election of the sale deed in accordance with the terms of the agreement to sell executed in her favour. The District Munsif's Court, Visakhapatnam as per the said terms of the agreement to sell and on the points of this defendant executed a sale deed on behalf of the vendors who are defendants therein for plot No.13. The boundaries given are the boundaries as per the original approved layout for plot No.13 viz., on the East: Plot No.14 and on the West: Plot No.12 and on the North: The combined wall of Andhra University Engineering College and on the South: Road. As such, plot No.13 is not to the south of plot No.12 but it is to the East to the plot No.12. The allegations that the plaintiff has been in possession and enjoyment of the site are totally false. The said site is vacant site. The plaintiff is not in possession at all. As per the orders of the IV Additional District Munsif, Visakhapatnam in E.P.No.510/79 the Hon'ble Court directed delivery to this defendant by the Court in July, 1982. Ever since then this defendant was in possession and enjoyment of the same. The plaintiff was never in enjoyment. The said site is vacant site. The plaintiff is not in possession at all. As per the orders of the IV Additional District Munsif, Visakhapatnam in E.P.No.510/79 the Hon'ble Court directed delivery to this defendant by the Court in July, 1982. Ever since then this defendant was in possession and enjoyment of the same. The plaintiff was never in enjoyment. Hence, the present plaintiff's suit for injunction is not maintainable at law as the plaintiff is not in possession. The allegations in para 3(c) of the plaint that this defendant and her husband came two days ago and stocked few cart loads of sand and stone by the side of the property proclaiming to construct a compound wall are totally false. After temporary of the property to this defendant, this defendant wanted to protect her vacant site and wanted to construct a compound wall, got six lorry loads of sand and 3 lorry loads of stone and dug foundations for compound wall and even laid cement in the said foundations. The further allegations in the plaint in para 3 (c) that the plaintiff's husband became curious and made enquiries and questioned this defendant's husband and that this defendant's husband informed him of the sale deed but did not give details of the same was reluctant to show any document, that the plaintiff's husband showed a sale deed of the plaintiff's are false. The plaintiff's husband, after the foundations were dug and concrete was laid, came with a large number of students of the University and threatened this defendant and her husband. At that time, this defendant's husband categorically informed that plaintiff's husband that it is for plot No.13 that the Court executed the sale deed and plot No.13 was delivered and that this defendant is in possession. Without any respect for the Court's sale deed or delivery the plaintiff's husband and her son tried to assault and obstruct this defendant's husband. Even today the concrete laid in the foundations is visible. The further allegations in the plaint in the plaintiff's affidavit that the vendors diverted himself of the plaint schedule property on and from 16-8-69 is totally incorrect and untenable under law. Even today the concrete laid in the foundations is visible. The further allegations in the plaint in the plaintiff's affidavit that the vendors diverted himself of the plaint schedule property on and from 16-8-69 is totally incorrect and untenable under law. The vendor of the plaintiff agreed to sell the property to this defendant and received Rs.500/- on 3-9-66, Rs.1,000/- on 13-8-65, Rs.2,000/-on 15-9-65 and after receipt of the same executed the agreement to sell on 3-6-68 in favour of this defendant agreeing to sell any one of the plots chosen by this defendant of a total extent of 1,000 Sq.Yds. As he did not execute the sale deed this defendant was constrained to file the suit O.S.No.431/69 on 4-8-69 in the Court of the District Munsif, Visakhapatnam, it is after the said suit, it seems, the plaintiff's vendor, the plaintiff and some others colluded together and having knowledge of the said suit and proceedings through their legal advisers, changed unofficially and seems to have brought into existence some sale deeds which are not valid and binding which are hit under the provisions of 52 of the Transfer of Property Act. The sale deed in favour of the plaintiff was written by the Registered Clerk of the Advocate of the defendant in O.S.No.431/69 i.e., the registered clerk of the Advocate of the plaintiff's vendor. The plan was manipulated in between 24-7-69 and 16-8-69. There is no such change in the official plans approved by the Government or the town Planning Authorities or the Visakhapatnam Urban Development Authority. The said suit O.S.No.431/69 was decreed on 29-7-78. It is in pursuance of the said decree that the sale deed was executed by the Munsif Court in favour of this defendant for plot No.13. Hence, the contention of the plaintiff in the plaint and in the affidavit that the sale deed of this defendant would not be valid and binding on them is itself incorrect and untenable under law. The sale deed in favour of the defendant takes effect as and from the date of the agreement i.e., 3-9-66 executed by the Jamindar of Andra in favour of this defendant. All subsequent sales are not valid and binding on this defendant. The property is in possession of this defendant. This defendant and her husband are acting only in pursuance of Court decree and delivers and orders. All subsequent sales are not valid and binding on this defendant. The property is in possession of this defendant. This defendant and her husband are acting only in pursuance of Court decree and delivers and orders. The plaintiff filed this suit and tried to obtain interim injunction orders and under the guise of ad interim injunction orders, she tried to construct the fending to the plaint schedule property and adjacent property which she is not entitled to. It is the plaintiff and her husband are acting highhandedly. The respondent has nothing to do with the plot No.13. This defendant has no objection and has nothing to do with regard to plot No.14 as per the original approved layout plan which is filed herewith. The plaintiff has no cause of action against this defendant." 10. In the additional written statement filed by the 2nd defendant, the following averments were made in paras 3 to 5 as hereunder:- "The suit as amended is not maintainable at law. Nobody is entitled for a prayer for relief of possession nor any decree for relief of possession unless he admits that the defendants were in possession. A prayer does not depend upon the findings of the Court. The present relief in fact is not an alternative relief. An inconsistent plea is allowable but not an inconsistent relief under law. As such not the plaint contains two inconsistent reliefs, one with regard to the injunction and the other with regard to the possession. The said two reliefs are opposed to each other as one is based on assertion of possession and the other is based on assertion that the party has no possession. The Court fee paid is incorrect. Now a single Court fee is paid on Rs.30,000/-. The reliefs are not alternative reliefs based on same cause of action. One is based on the cause of action that the plaintiff has possession and there is interference with the possession and the another is based on the cause of action that the plaintiff has no possession. As such they are two independent reliefs based on two individual reliefs and cause of action. As such under Section 6 of the Court Fees Act, independent Court fee have to be paid on the said two reliefs." 11. As such they are two independent reliefs based on two individual reliefs and cause of action. As such under Section 6 of the Court Fees Act, independent Court fee have to be paid on the said two reliefs." 11. The following issues and additional issues had been settled by the trial Court:- Issues:- 1) Whether the plaintiff got title to and possession on the plaint schedule property? 2) Whether the plaint schedule is correct? 3) Whether the sale deed dt.16-8-69 is hit by Section 52 of the Transfer of Property Act in view of the suit O.S.No.431/69 on the file of the District Munsif's Court, Visakhapatnam? 4) Whether the plaintiff has got any cause of action against the defendants? 5) Whether the suit against D.2 is not maintainable? 6) To what relief? Additional Issues:- 1) Whether the plaintiff is entitled to that alternate relief of possession? 2) Whether the Court fee paid is not corr4ect? 2. 12. Before the trial Court the following oral and documentary evidence had been adduced:- Witnesses examined:- For plaintiff:- P.W.1 :-A.S.Subramanyam P.W.2 :- G.Satyanarayana Murthy For defendants:- D.W.1 :- R.Vimaladevi D.W.2 :- B.Apparao D.W.3 :- T.V.V.R.Prasad D.W.4 :- N.S.R.Narasimha Rao Documents marked:-For plaintiff :- Ex.A.1 / 16-8-69 :- Sale deed executed by Sri A.H.Pratapraju in favour of the plaintiff. Ex.A.2/-- :- Layout plan of T.S.No.62/2. Ex.A.3/--- :- Certified copy of the amended plaint in O.S.No.431/69 Ex.A.4/4-8-69 :- certified copy of plaint in O.S.No.431/69 filed by the 2nd defendant on the file of D.M.C., Visakhapatnam. Ex.A.5/29-7-78 :- Certified copy of decree in O.S.No.431/69. Ex.A.6/20-3-70 :- Certified copy of sale deed for Rs.6,000/- with plan. Ex.A.7/16-8-69 :- Registration copy of sale deed for Rs.7850/-. For defendants :- Ex.B.1/24-7-69 :- Photostat copy of sale deed for Rs.5,000/-. Ex.B.2/8-3-82 :- sale deed in favour of 2nd defendant by IV A.D.M., Visakhapatnam on behalf of A.H.H.P.Raj Bahdur. Ex.B.3/7-7-82 :- Delivery Warrant in E.P.No.510/74 in O.S.No.431/69 with Amin's return dt.20-7-82. Ex.B.4/6-8-82 :- O.S.No.431/69 E.P.No.510/79 with order thereon. Ex.B.5/--- :- Waltair Ward plan. Ex.B.6/24-7-69 :- Photostat copy of Sale deed for Rs.5,000/-in favour of Director. A.R. Subrahmanyam. Ex.B.7/16-8-69 :- Sale deed for Rs.7850/- in favour of A.HGymavathi with plan. Ex.B.8/23-8-82 :- Lr.by the 2nd defendant to the Vice-Chairman, VUDA, Visakhapatnam. Ex.B.9/-- :- Photostat copy of layout plan in T.S.No.62/82. Ex.B.10/23-8-82 :- Layout plan in T.S.No.13/77. X-Series documents:- Ex.X.1/-- :- Delivery warrant in E.P.No.510/79 in O.S.No.431/69. A.R. Subrahmanyam. Ex.B.7/16-8-69 :- Sale deed for Rs.7850/- in favour of A.HGymavathi with plan. Ex.B.8/23-8-82 :- Lr.by the 2nd defendant to the Vice-Chairman, VUDA, Visakhapatnam. Ex.B.9/-- :- Photostat copy of layout plan in T.S.No.62/82. Ex.B.10/23-8-82 :- Layout plan in T.S.No.13/77. X-Series documents:- Ex.X.1/-- :- Delivery warrant in E.P.No.510/79 in O.S.No.431/69. Ex.X.2/- :- Delivery warrant in E.P.No.510/79 in O.S.No.431/69. Ex.X.3/-- :- Amin's return of Delivery Warrant in E.P.No.510/79 in O.S.No.431/69. Ex.X.4/--- :- Approved layout plan in O.S.No.431/69 on the file of I-ADMC, Visakhapatnam. Ex.X.5/8-3-82 :- Registration sale deed for Rs.5,000/-. 13. The trial Court on appreciation of the oral and documentary evidence available on record, while answering issue No.1 recorded findings at paras 7 to 19 and came to the conclusion that the delivery of plot No.13 as per Ex.B.3-Delivery Warrant is also doubtful and the Delivery Warrant -Ex.X.2 shows that 1,000 Sq.Yds. within the boundaries mentioned therein is delivered to the 2nd defendant and it is not the case of the defendant that the extent of either plot No.13 or 14 is 1000 Sq.Yds. and as per the recitals in the draft sale deed a registered sale deed was executed by executing Court and as per the recital in the sale deed the Delivery Warrant was issued and as per the Delivery Warrant the receipt is filed by the Amin and the delivery is not an effective delivery in accordance with the sale deed or warrant and even if it was delivered, the plaintiff has got valid title to it and perfected her title by adverse possession and thus held that the plaintiff had got title to and possession of the suit schedule property and answered issue No.1 in favour of the plaintiff. While answering issue No.3, Ex.A.1 and Ex.B.2 had been taken into consideration and findings had been recorded at paras 20 to 26 and came to the conclusion that if the suit is filed for the entire land, then the 2nd defendant may contend that plot covered by Ex.A.1 is part of S.No.62/2 and lis pendens will apply and even in that case the doctrine of lis pendens will apply only when the suit is decreed for the entire land covered by S.No.62/2 and if the suit is decreed for part of S.No.62/2, then the doctrine of list pendens will apply to that part only and if the suit is filed for the entire land covered by S.No.62/2, the doctrine of lis pendens will not apply as the decree is in respect of plot No.16 only. So even if the Court executed sale deed for plot No.13, it does not bind either the original owner or the plaintiff who purchased plot No.14 which is plot No.13 as per the 2nd defendant. When the doctrine of lis pendens is not applicable then plaintiff will be treated as a bona fide purchaser for value, without notice of any agreement of sale. Even if 2nd defendant got possession by virtue of his sale deed, he can be treated only as a trespasser. When Section 52 of the Transfer of Property Act is not applicable, the rights of the plaintiff are to be protected and thus came to the conclusion that the sale deed dated 15-8-69 is not hit by Section 52 of the Transfer of Property Act in view of suit O.S.No.431/69 on the file of District Munsif's Court, Visakhapatnam and accordingly, answered the said issue in favour of the plaintiff and against the defendants. Likewise, findings had been recorded on Issue Nos.2, 4, 5 and 6 and also additional issue Nos.1 and 2 as well and ultimately came to the conclusion that the plaintiff got title to the property and defendants have no title to the plaint schedule property and accordingly decreed the suit. 2. 14. P.W.1 - the husband of the plaintiff, no doubt, deposed that he personally knows all the facts relating to the suit and this witness also deposed about the purchase of the site in Sy.No.62/2 Block No.6 of Waltair Ward in Visakhapatnam from Zamindar of Andhra. This witness also deposed about Ex.A.1. 2. 14. P.W.1 - the husband of the plaintiff, no doubt, deposed that he personally knows all the facts relating to the suit and this witness also deposed about the purchase of the site in Sy.No.62/2 Block No.6 of Waltair Ward in Visakhapatnam from Zamindar of Andhra. This witness also deposed about Ex.A.1. Ex.A.1 is the sale deed dt.16-8-69 and Ex.A.2 is the plan attached to the sale deed. The scribe of Ex.A.1 is one Ganti Satyam, the clerk of Sri D.V.Subba Rao, an Advocate of the said place. The scribe did not inform them about any suit between D.2 and the vendor. This witness also deposed that he is not aware whether D.2 obtained any agreement of sale from his vendor on 3-9- 3. 68. Further this witness deposed that it is not true to say that this witness, the scribe and Advocate D.V.Subba Rao and his vendor colluded and brought about the present sale deed and the altered plan to defeat the rights of D.1 and D.2. The certified copy of the original plaint in O.S.No.431/69 on the file of District Munsif Court, Visakhapatnam is Ex.A.3. The certified copy of the amended plaint is Ex.A.4. The certified copy of the Judgment in O.S.No.431/69 along with decree is Ex.A.5. Registration extract of the sale deed dt.20-3-70 with reference to plot No.13 is Ex.A.6. In cross-examination this witness deposed that the scribe is the Clerk of Sri D.V.Subba Rao, an Advocate of the said place and he learnt recently that Sri D.V.Subba Rao was an Advocate for his vendor in some suits previously and that after filing of this suit, his Advocate sent a photostat copy of his sale deed to the defendants and the photostat copy of his sale deed sent to the defendants is the one shown to him. The vendor is common for the plot sold to his wife and the plot sold to him. The sale deed in favour of his wife is dt.16-8-69. He conducted negotiations for the plot purchased by his wife. The scribe of Ex.A.1 is Ganti Satyam. The second plot was purchased and got registered on 16-8-69 because his vendor agreed to sell it only on that day. They had seen the second plot only on 16-8-69 before the registration. Ex.A.1 was also drafted at Sub-Registrar's Office. He conducted negotiations for the plot purchased by his wife. The scribe of Ex.A.1 is Ganti Satyam. The second plot was purchased and got registered on 16-8-69 because his vendor agreed to sell it only on that day. They had seen the second plot only on 16-8-69 before the registration. Ex.A.1 was also drafted at Sub-Registrar's Office. This witness does not remember who attested Ex.A.1 and he is unable to recollect that who are the attestors of Ex.A.1 even after seeing their signatures. This witness also deposed that he does not know whether the two attestors of Ex.A.1 are the clients of Sri D.V.Subba Rao. He attended for registration of Ex.A.1 on behalf of his wife. He does not remember as to who signed Ex.A.1 as identifying witness. The scribe of Ex.A.1 was also present at the time of registration. He did not ask his vendor as to whether he made any alienation of the suit plot or whether there were any suits with regard to the suit plot. He read over the contents of Ex.A.1 before it was submitted for registration. In the cross-examination a question was put is your wife prepared to take plot No.14 as per the plan attached to your sale deed? It was recorded that the learned Advocate for plaintiff opposed to this question as earlier this question was put and the plaintiff can take as per her sale deed if she succeeds. Heard the defendant's side also. Even though this witness stated earlier that he is not going to examine his wife it is not a bar for his wife to come and deposed subsequently and that this witness answer will not prejudice the case of both parties and so this question is irrelevant and over ruled. This witness also deposed that he had not gone through the contents of Ex.A.3 to Ex.A.5. He asked his Advocate to take the public copies of certain documents i.e., Judgment in O.S.No.431/69 on the file of I-ADM, Visakhapatnam. He did not ascertain when that suit O.S.No.431/69 was filed. It is not true to say that he obtained Ex.A.1 in favour of his wife after the said suit O.S.No.431/69 was filed. Several questions were posed to this witness relating to the identity of the property and also the plot numbers as well. 15. He did not ascertain when that suit O.S.No.431/69 was filed. It is not true to say that he obtained Ex.A.1 in favour of his wife after the said suit O.S.No.431/69 was filed. Several questions were posed to this witness relating to the identity of the property and also the plot numbers as well. 15. P.W.2 - G.Satyanarayana Murthy deposed that he scribed two documents of sale deeds in P.W.1's name and in his wife's name. Ex.A.1 is the sale deed in favour of the plaintiff and he scribed Ex.A.1. Andhra Zamindar is the vendor of Ex.A.1. One M.N.Sastry purchased a plot in the layout and he scribed it and the said M.N.Sastry, Professor of Andhra University, recommended P.W.1 to purchase a plot in the same layout. Therefore, P.W.1 approached him with vendor and asked him to scribe the sale deed. He was then also a Pleader's Clerk as Durvasula Somayajulu, Seethladevi and Subba Rao. This witness also deposed that they were not aware of the fact that D.2 filed a suit against Andhra Zamindar. By the date of Ex.A.1, neither Andhra Zamindar nor P.W.1 were parties of their Office. During 1970 Andhra Zamindar came out of office and gave vakalat to appear on his behalf in the suits. It is no doubt true that this witness deposed that it is not a fact that himself, his Advocate Subba Rao and P.W.1 colluded together and got into existence the sale deeds so as to defeat the rights of D.2. Rama Prasad Rao and P.V.Gopala Raju are the attestors of Ex.A.1 and he does not know about their whereabouts. He worked at the beginning as Pleader's Clerk under P.Gangadharam, Advocate. By the time he joined Durvasula Vari office, Sri D.V.Subba Rao did not enter the profession. He joined the profession in the year 1957. From 1960 he became a member of the Lions Club. The age of the said Vendor, Zamindar of Andhra is almost equal with that of Sri Subba Rao Subba Rao and Andhra Zamindar were not classmates. This witness also deposed that he thinks the Government insisted that the Document Writers should obtain licence during 1973. From 1960 he became a member of the Lions Club. The age of the said Vendor, Zamindar of Andhra is almost equal with that of Sri Subba Rao Subba Rao and Andhra Zamindar were not classmates. This witness also deposed that he thinks the Government insisted that the Document Writers should obtain licence during 1973. He does not know whether P.W.1 is also a member of Lions Club and he scribed the sale deed in favour of P.W.1 at the first instance and he had gone through the layout plan and in the said layout, he scribed 12 to 16 sale deeds. The sale deed he scribed in the name of pa2 may be second or third sale deed in series. Since 1960 he had been in the Office of Sri Subba Rao as his clerk. This witness also deposed on recall and further cross-examined that he might have scribed the sale deeds for 16 plots out of 18 plots or so. The plan was attached to each of the sale deed. Borra Venkateshwarlu is the attestor of Ex.B.6. This witness also deposed that it is not true to say that the attestors of Ex.B.6 are the clients of his office. This witness also deposed that in the suit filed as against Ex.A.2, no temporary injunction was granted against Andhra Zamindar restraining alienations and he does not know whether the said suit was filed on 4-9-69. This witness also deposed that it is not true to say that Andhra Zamindar met him on 5-9-69 in the same suit. Andhra Zamindar did not come to their office during August 1969 in respect of the said suit. The registration extract shown to him is the registration extract of sale deed -Ex.A.1 and it is Ex.B.7. Ex.A.1 was executed on 16-8-69 and Ex.B.6 was executed on 24-7-69. He cannot say whether plot No.12 and 13 in the plan in Ex.B.6 were changed. This witness also deposed in relation to Ex.A.6 and Ex.A.7 and Ex.B.6 as well. This witness also deposed that in Ex.A.1 the plot No.13 was corrected as plot No.14 and in the recitals plot No.14 was corrected into plot No.15 and the said corrections were noted at the bottom of the document by him. Ex.B.6 is the sale deed plan, the western boundary is plot No.12 is plot No.13 and in Ex.A.1 plot No.13 was interlimited as plot No.12. Ex.B.6 is the sale deed plan, the western boundary is plot No.12 is plot No.13 and in Ex.A.1 plot No.13 was interlimited as plot No.12. The western boundary of plot No.13 as per Ex.B.7 is road. As per Ex.B.6 the western boundary to plot No.13 is plot No.12. It is not true to say that Ex.A.1 was got registered on 18-8-69 and that he falsely stated that that Ex.A.1 was executed on 16-8-69 and registered on the same day. It is not true to say that the corrections, erasions in Ex.A.1 were made in between 16-8-69 and 18-8-69. There were identification witnesses for Ex.A.1. He went to the Registrar's Office for getting all the documents registered which he received. He does not remember who were the identification witnesses. This is the evidence of P.Ws. 1 and 2 which is available on record. 2. 16. As against this evidence, D.W.1, D.W.2 -the Bailiff of the District Court who deposed about 'X' series, D.W.3 - The Agricultural Draftsmen in VUDA, D.W.4 -the Town Surveyor had been examined and the documents Ex.B.1 to Ex.B.10 had been marked. Ex.B.1 is the Photostat copy of sale deed for Rs.5,000/-, Ex.B.2 is the sale deed in favour of 2nd defendant by IV A.D.M., Visakhapatnam on behalf of A.H.H.P.Raj Bahdur, Ex.B.3 is the Delivery Warrant in E.P.No.510/74 in O.S.No.431/69 with Amin's return dt.20-7-82, Ex.B.4 is the O.S.No.431/69 E.P.No.510/79 with order thereon, Ex.B.5 is the Waltair Ward plan, Ex.B.6 is the Photostat copy of Sale deed for Rs.5,000/-in favour of A.R.Subrahmanyam, Ex.B.7 is the Sale deed for Rs.7850/-in favour of A.Hymavathi with plan, Ex.B.8 is the Lr.by the 2nd defendant to the Vice-Chairman, VUDA, Visakhapatnam, Ex.B.9 is the Photostat copy of layout plan in T.S.No.62/82, and Ex.B.10 is the Layout plan in T.S.No.13/77. Likewise, Ex.X.1 is the Delivery warrant in E.P.No.510/79 in O.S.No.431/69, Ex.X.2 also is Delivery warrant in E.P.No.510/79 in O.S.No.431/69, Ex.X.3 is Amin's return of Delivery Warrant in E.P.No.510/79 in O.S.No.431/69, Ex.X.4 is the Approved layout plan in O.S.No.431/69 on the file of I-ADMC, Visakhapatnam and Ex.X.5 is the Registration sale deed for Rs.5,000/- The evidence of D.Ws. Likewise, Ex.X.1 is the Delivery warrant in E.P.No.510/79 in O.S.No.431/69, Ex.X.2 also is Delivery warrant in E.P.No.510/79 in O.S.No.431/69, Ex.X.3 is Amin's return of Delivery Warrant in E.P.No.510/79 in O.S.No.431/69, Ex.X.4 is the Approved layout plan in O.S.No.431/69 on the file of I-ADMC, Visakhapatnam and Ex.X.5 is the Registration sale deed for Rs.5,000/- The evidence of D.Ws. 1, 2, 3 and 4 being clear and categorical, explaining the sequence of events and also effecting of the delivery of possession, inasmuch as the acts of the Bailiff relating to the delivery of possession are final acts and judicial acts as directed by the Court, the same cannot be doubted. However, certain submissions were made that by virtue of the rejection of the plaint during the relevant period, it cannot be taken that though the plaint was presented prior thereto, the suit can be said to be pending on the specific day when the sale deed in favour of the plaintiff came into existence. Elaborate submissions were made in relation to the applicability of the doctrine of lis pendense in this regard. In Sanjay Verma V. Manik Roy And Others AIR 2007 S.C., 1332 at para 12 the Apex Court observed as hereunder:- "The principles specified in Section 52 of the T.P.Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendent elite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the T.P.Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The Section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court." Further strong reliance had been placed on the decision of the Apex Court in Ram Lakhan Singh V. Dy.Director Of Consolidation And Others 1986 (Supp) SCC 682 wherein the Apex Court observed that where one-third share of the entire plot in dispute claimed, a pendent elite transferee would be bound by the result of the litigation in respect of the entire plot. It is needless to say that as reflected from the facts the agreement was entered into for an extent of 1000 Sq.Yds. undivided and at the relevant point of time, specifically not identified. The subsequent series of events already had been narrated. It is pertinent to note that the common owner of the property had suffered a decree and no doubt the discrepancies in between the schedule of the agreement of sale, the decree made and also the sale deed obtained from the Court and the delivery had been highlighted and elaborated submissions were made. Further, reliance also was placed on Ravada Yerranna (Died) Per L.Rs. V. Ravada Thammunaidu (Died) Per L.Rs. 2008 (3) ALT 468 wherein it was observed that the burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail and where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. Further reliance was placed on Narayana V. Gopal AIR 1960 S.C., 100 wherein the Apex Court on the aspect of the meaning of burden of proof observed at para 10 as hereunder:- "The appellant contended that this was a special suit under Section 5(3) of the Charitable and Religious Trusts Act, 1920, and that the burden lay upon the respondents to prove that there was a religious and charitable trust of a public character in favour of the deity. He contended that the two Courts below had placed the burden of proof upon him to show by positive evidence that the deity was a family diety, and that the properties were his private properties. According to him, the defendants ought to have proved their case, and if they failed to prove affirmatively that case, then the suit ought to have been decreed in his favour. The expression "burden of proof" really means two different things. It means sometimes that a party is required to prove an allegation before Judgment can be given in its favour; it also means that on a contested issue one of the two contending parties has to introduce evidence. Whichever way one looks, the question is really academic in the present case, because both parties have introduced their evidence on the question of the nature of the diety & the properties and have sought to establish their own part of the case. The two Courts below have not decided the case on the abstract question of burden of proof; nor could the suit be decided in such a way. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. The two Courts below have not decided the case on the abstract question of burden of proof; nor could the suit be decided in such a way. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic." Further strong reliance was placed on the decision of the Division Bench of the Calcutta High Court in Ashuthosh Roy V. Ananta Ram AIR 1919 Calcutta 40 wherein it was observed that where the suit was filed in June, 1906 and some property was sold to the defendants on 4th March, 1906 and the rest on 25th April, 1907 and the suit was dismissed for default on 24th April, 1907 but restored on 4th May, 1907, both sales were held to be effected by rule of lis pendens. No doubt, certain submissions were made relating to the applicability of the decision in the light of the subsequent amendments made to the relevant provisions of the Transfer of Property Act. This Court is not inclined to express any opinion relating to the said aspect. This is a suit for declaration of the title, injunction and in alternative for recovery of possession. On a careful analysis of the findings recorded by the trial Court, it is clear that the trial Court recorded several findings pointing out certain defects or lapses in the oral and documentary evidence adduced on behalf of the defendants instead of recording clear and positive findings in the light of the oral and documentary evidence on behalf of the plaintiff. It is needless to say that in a suit for ejectment, the plaintiff cannot rely upon the weakness of the defendants because the plaintiff may have to succeed on the strength of his own case. In the light of this legal position and in the light of the evidence available on record, the Court may have to appreciate whether the plaintiff was able to discharge the burden so as to entitle herself to get the reliefs prayed for in the suit. In the light of this legal position and in the light of the evidence available on record, the Court may have to appreciate whether the plaintiff was able to discharge the burden so as to entitle herself to get the reliefs prayed for in the suit. It is pertinent to note that in the light of the cross-examination of P.W.2, there are certain suspicious circumstances and P.W.2 is only the scribe of the document. The plaintiff did not enter into the witness box. The husband of the plaintiff was examined as P.W.1. It may be true that the husband may be having knowledge about all the facts, but for reasons best known, the plaintiff was not examined. May be this may not be a serious lapse but however the fact remains that when there is equity of the title in the light of the several circumstances and especially in the light of the fact that the conduct of Andhra Zamindar would go to show that having fought a litigation may be that he was not interested in seeking that some property is given to the contesting defendant in pursuance of the agreement of sale referred to above. No doubt these probabilities in a way had been established by virtue of the suggestion put to P.W.2 as well. The attestors concerned with Ex.A.1 had not been examined and the way in which P.W.1 deposed relating to this aspect also would create some doubt. It is the bounden duty of the plaintiff to see that the attestors are examined. In the peculiar facts and circumstances, especially in the light of the circumstances surrounding Ex.A.1 and in the light of the evidence of P.W.2 as well, no doubt, certain findings had been recorded on the aspect of collusion and further though there is no specific plea of perfection of title by adverse possession though the suit is not based on the plea of possessory title, certain observations were made that from the date of sale because of the continuous possession, it can be taken that the plaintiff had perfected her title by adverse possession. These findings are unsustainable and also unwarranted and if any such plea is available and any such finding is to be given, specific issue has framed in this regard and parties be permitted to let in evidence and then decide such question, if the Court is inclined to record such findings either on the plea of adverse possession or possessory title, as the case may be. It is pertinent to note that P.W.1 and the defendants at the relevant point of time had been working in Andhra University and closely known to one another. 1. 17. On overall facts and circumstances, this Court is satisfied that the burden of proof had not been appreciated by the trial Court in proper perspective and the evidence available on record. The evidence of P.Ws. 1, 2 and Ex.A.1 to Ex.A.7, if carefully analyzed along with the other evidence available on record adduced on behalf of the defendants, the Decree and Judgment made by the trial Court cannot be sustained and accordingly the said Decree and Judgment are liable to be set aside. It is also pertinent to note that the said Andhra Zamindar was not examined. It is stated that the said Andhra Zamindar is no more. The date of death is not forthcoming. It is not the case of the either side that none concerned with Andhra Zamindar, the vendor's family are available. In the peculiar facts and circumstances, especially taking the conduct of the parties into consideration and also the nature of the litigation, either Andhra Zamindar or the family members of Andhra Zamindar who have knowledge about all these facts relating to the sales would be more competent to explain these discrepancies especially in the light of the boundaries in the light of change of plot numbers, the proceedings, the decree obtained, the delivery of possession and also the sale transaction, in the meanwhile whether with a view to defeat the rights of the defendants, or whether Ex.A.1 is otherwise bona fide transaction, for reasons best known, this also was not done. 2. 18. Point No.3:- In the light of the findings recorded above, the question would be whether it is a fit case for remand or the appeal to be allowed. 2. 18. Point No.3:- In the light of the findings recorded above, the question would be whether it is a fit case for remand or the appeal to be allowed. However, inasmuch as some evidence had been placed by the plaintiff, the evidence of the husband of plaintiff -P.W.1 and also the scribe of the document - P.W.2, this Court is of the considered opinion that instead of straight away allowing the appeal, it would be just and proper to set aside the Decree and Judgment of the trial Court and make an order of remand in this regard and let the trial Court give opportunity to both the parties to let in evidence on all the aspects and record appropriate findings keeping in view the concept of the burden of proof as well in a suit of this nature and decide the matter afresh in accordance with law, if necessary by permitting the parties to amend the pleadings suitably and also settling the additional issue, if any, especially in the light of the findings recorded by the trial Court on the plea of adverse possession or the possessory title, as the case may be. Accordingly, the Decree and Judgment of the trial Court are hereby set aside and the matter is remanded for the purposes specified supra. Inasmuch as, the matter is an old one, let the learned Judge give top priority for disposal of the case. 3. 19. Accordingly, the appeal is allowed to the extent indicated above. Inasmuch as, an order of remand is being made, let the parties bear their own costs.