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Andhra High Court · body

2009 DIGILAW 738 (AP)

Chukka Venkatadri v. Mallavarapu Mahalakshmamma

2009-10-23

G.BHAVANI PRASAD

body2009
JUDGMENT : 1. A.S. No.801 of 1995 is against the judgment and decree in O.S. No.91 of 1983 on the file of the Subordinate Judge’s Court, Chirala, dated 08-03-1995. C.M.S.A. No.90 of 2005 is against the order and decreetal order in E.A. No.259 of 1996 in E.P. No.75 of 1995 in O.S. No.91 of 1983, dated 27-03-2003 on the file of the Senior Civil Judge’s Court, Chirala. A.S.M.P. No.1931 of 2005 in A.S. No.801 of 1995 is to receive the accompanying documents as additional evidence, whereas A.S.M.P. No.1354 of 2005 is a petition by a third party to be impleaded as 36th respondent in A.S. No.801 of 1995. 2. The parties are referred to herein as they are arrayed in O.S. No.91 of 1983. 3. Respondents 1 to 4 in A.S. No.801 of 1995 filed O.S. No.91 of 1983, in which the appellants are defendants 2 and 32. The claim in the suit is that Mallarapu Venkateswarlu, Ramulu, Kotayya and Lakshmayya are brothers and they divided their family properties under a registered partition deed, dated 14-04-1931, in which Ac.4-05 cents of dry land of Kothapet village in patta No.759 and D.No.146/1-A fell to the share of Kotayya and Lakshmayya. The 1st plaintiff is the widow and plaintiffs 2 to 4 are the sons of Kotayya. In 1935, Kotayya sold Ac.0-70 cents to Chukka Venkateswarlu, son of Lakshmayya and the same was purchased by the 2nd defendant and his brother Venkateswarlu. After Kottayya died intestate in 1943, the 1st plaintiff sold Ac.0-76 cents to the 2nd defendant, for herself and on behalf of the then minor plaintiffs 2 to 4. She also sold Ac.0-40 cents to Chukka Kotayya, son of Peraiah. In 1953, the 2nd defendant sold Ac.0-26 cents out of Ac.0-76 cents to Chukka Kotayya, resulting in the 2nd defendant retaining Ac.0-50 cents and Chukka Kotayya getting Ac.0-66 cents. On 22-02-1967, Mallarapu Lakshmayya, his son Sambayya and the plaintiffs sold Ac.0-50 cents to the 1st defendant along with some other annexed wet land. The plaintiffs along with Chukka Kotayya and his sons, and Mallarapu Lakshmayya and his son Sambayya also sold Ac.1-00 to the 1st defendant. Thus, the plaintiffs, Kotayya, Lakshmayya and Lakshmayya’s son Sambayya parted with Ac.2-70 cents in D.No.146/1-A leaving Ac.1-35 cents to the plaintiffs who became entitled to the same under the registered partition deed, dated 22-02-1967 between the branches of Lakshmayya and the plaintiffs. Thus, the plaintiffs, Kotayya, Lakshmayya and Lakshmayya’s son Sambayya parted with Ac.2-70 cents in D.No.146/1-A leaving Ac.1-35 cents to the plaintiffs who became entitled to the same under the registered partition deed, dated 22-02-1967 between the branches of Lakshmayya and the plaintiffs. The plaintiffs claimed that when plaintiffs 2 to 4 were getting the land measured to partition the same between themselves in the middle of June, 1983, the 2nd defendant and others abetted by the 1st defendant and Dr. K. Sadananda Rao and others obstructed them in respect of Ac.0-85 cents while the remaining Ac.0-50 cents are always in the possession and enjoyment of the plaintiffs. The plaintiffs were not ousted even from the remaining Ac.0-85 cents and the 1st defendant having Ac.1-50 cents in D.No.146/1-A and Ac.0-50 cents in D.No.146/1-B must be in the possession of the said Ac.0-85 cents along with the sons of the 2nd defendant i.e. Ramulu and Peda Venkateswarlu. The defendants were alleged to have brought into existence the sale deeds of 1981 from defendants 1 to 3 and hence, the plaintiffs filed the suit for possession of Ac.0-85 cents. 4. The 1st defendant contended that the plaintiffs and others executed a sale deed dated 22-02-1967 in favour of the 1st defendant for a consideration of Rs.4,000/- in respect of the 1st item of wet land and the 2nd item of Ac.1-50 cents (Ac.1-00 in D.No.146/1-A belonged to Chukka Kotayya, plaintiffs and others and Ac.0-50 cents in D.No.146/1-B). The entire plot of Ac.1-50 cents is bounded by a road on the East, the 2nd defendant’s land in D.No.146/1-A on the South, the wet land sold under 1st item on the West and rest of the land in D.No.146/1-B belonging to the 2nd defendant on the North. The said land of the 2nd defendant is also bounded by road on the East and rest of the land in D.No.146/1-B on the North. The plaint schedule is, hence, incorrect and the 1st defendant also purchased another Ac.0-50 cents for Rs.3,000/- in D.No.146/1-A from the plaintiffs and others and since then the 1st defendant is in possession and enjoyment of the lands purchased under the two sale deeds. The 1st defendant got the sites measured in 1981 and sold the same to the 15th defendant, Kunam Bharathamma and others and delivered possession to them, who divided them into plots and got them registered. The 1st defendant got the sites measured in 1981 and sold the same to the 15th defendant, Kunam Bharathamma and others and delivered possession to them, who divided them into plots and got them registered. The purchasers are in possession, who are necessary parties and the 1st defendant is not in possession of any portion of the suit property. 5. The 2nd defendant contested the suit claiming that Chukka Venkateswarlu sold Ac.0-83½ cents under a sale deed dated 30-07-1951 to Burra Nagaiah, and Chukka Ramulu and Chukka Peda Venkateswarlu got Ac.0-60 cents and Ac.0-50 cents respectively out of Ac.1-10 cents in the suit survey number under the registered partition deed dated 29-06-1976 executed by the 2nd defendant and his sons. Whatever the plaintiffs got, they sold it away and the 2nd defendant sold away Ac.0-76 cents in the suit survey number and some extent in some other number. The plaintiffs or their predecessors were never in possession before 1935, due to which the suit is barred by limitation and is also bad for non-joinder of proper parties. The suit is undervalued and the 2nd defendant is in possession and enjoyment of Ac.1-10 cents as per his documents. By the amendment of the plaint, the plaintiffs sought to confuse the boundaries. 6. The 5th defendant contended that the plaintiffs showed the entire Ac.2-50 cents in the plaint schedule and as Ac.0-50 cents described therein have no fixed boundaries, no possession of such an imaginary plot can be claimed. The suit as framed is not maintainable, as the suit plot is not in existence and is unidentifiable. The 5th defendant purchased Ac.0-11½ cents of site under registered sale deed, dated 11-08-1982 for Rs.8,625/- in S.Nos.146/1A and 146/1B within specified boundaries and the 4th defendant similarly purchased the Northern plot of Ac.0-11½ cents for a similar sum. The 5th and 4th defendants are in possession of their respective plots getting title and possession from their vendors to the knowledge of the plaintiffs and the plaintiffs have no right in the said plots. 7. The 6th defendant contended that the 2nd defendant and his son, the 3rd defendant, partitioned their joint family properties under a registered partition deed and Ac.0-50 cents purchased by the 2nd defendant from the plaintiffs in D.No.146/1-A fell to the share of the 3rd defendant. 7. The 6th defendant contended that the 2nd defendant and his son, the 3rd defendant, partitioned their joint family properties under a registered partition deed and Ac.0-50 cents purchased by the 2nd defendant from the plaintiffs in D.No.146/1-A fell to the share of the 3rd defendant. The 3rd defendant sold Ac.0-08¾ cents in S.No.145/1A for Rs.5,700/- under a sale deed dated 21-05-1981 to the 6th defendant, who is in possession and enjoyment since then. 8. The 7th defendant claimed that Ac.0-07 cents were similarly sold by the 3rd defendant for Rs.4,550/- in favour of defendants 6 to 11 as a path way to reach the various plots sold by him, for which he executed a sale deed on 21-05-1981. The 7th defendant claimed that defendants 6 to 11 are jointly in possession and enjoyment of the same since then. 9. Defendants 7 to 9 jointly pleaded that the 3rd defendant sold two plots of Ac.0-08¾ cents for Rs.5,700/- each under two sale deeds, dated 21-05-1981, which are in their possession and enjoyment since then. 10. The 10th defendant contended similarly that he purchased Ac.0-08¾ cents for Rs.5,700/- under a sale deed dated 21-05-1981. Similar is the claim of the 11th defendant. 11. Defendants 13 and 14 claimed that they purchased Ac.0-14 cents for Rs.9,100/-under a sale deed, dated 20-04-1981 and they also purchased Ac.0-07 5/8 cents for Rs.4,900/- under a sale deed dated 23-04-1981 from the 1st defendant. The second purchase is for use as path way for several plots sold by the 1st defendant to various people. 12. The 24th defendant contended that he purchased Ac.0-16 cents in S.No.146/1A and S.No.146/1B for Rs.10,400/- from the 1st defendant under a sale deed dated 25-06-1981. 13. The 27th defendant claimed that the plaintiffs are falsely claiming Ac.0-50 cents without fixed boundaries out of Ac.2-50 cents in the plaint schedule and the suit as framed is not maintainable. The 27th defendant purchased Ac.0-22 cents from Katari Veeranjaneyulu and Manam Bharatamma under registered sale deed, dated 18-08-1982 for Rs.22,000/- and is in possession of the same. The vendors of the 27th defendant purchased the same from Chinta Savitri on 25-04-1981. 14. The 29th defendant claimed that she purchased Ac.0-11½ cents in S.No.146/1A under a registered sale deed dated 18-10-1982 for Rs.11,500/- from Kunam Lakshmaiah and the Eastern side owner constructed a house also in her plot. The vendors of the 27th defendant purchased the same from Chinta Savitri on 25-04-1981. 14. The 29th defendant claimed that she purchased Ac.0-11½ cents in S.No.146/1A under a registered sale deed dated 18-10-1982 for Rs.11,500/- from Kunam Lakshmaiah and the Eastern side owner constructed a house also in her plot. The 28th defendant also purchased Ac.0-11 cents on 06-12-1982 for Rs.11,000/- and he is in possession. The vendors have title and possession. Defendants 4, 5, 27 and 28 purchased their plots which are within Ac.1-50 cents in S.No.146/1A. The 29th defendant’s elder sister also purchased a plot and constructed a house in 1983 and her husband Amarneni Subba Rao arranged the sale transactions. 15. The other contesting defendants adopted the written statements of others respectively. 16. On such pleadings, the trial Court framed the following issues for trial: (1) Whether the plaintiffs are entitled for a decree for possession of the suit land from the defendants ? (2) Whether the plaintiffs are having subsisting rights and interest in the suit land ? (3) Whether the plaint schedule extent and boundaries thereof are not true and correct ? (4) Whether the suit is bad for non-joinder of parties ? (5) Whether the suit is not maintainable ? (6) To what relief the plaintiffs are entitled to ? 17. The trial Court examined P.Ws.1 to 3 and D.Ws.1 to 6 during trial and marked Exs.A.1 to A.12, B.1 to B.10 and X.1. 18. It rendered its judgment on 08-03-1995 noting that the suit was originally filed for possession of Ac.0-50 cents but was later amended to one for possession of Ac.0-85 cents and that the plaintiffs are claiming to have a balance of Ac.1-35 cents of land after selling away Ac.2-70 cents of land in Ac.4-05 cents in S.No.146/1A, which originally fell to the share of Peda Kotayya and Lakshmayya in their family partition and later to the branch of Peda Kotayya under a family arrangement. The trial Court also noted that the defence is based on the purchase of part of the lands by defendants 1 and 2 from the family of the plaintiffs and further sales by them to various persons as house plots after division of the lands into plots. The trial Court dealt with the contention that an unexecutable decree in respect of unidentifiable property cannot be passed. The trial Court dealt with the contention that an unexecutable decree in respect of unidentifiable property cannot be passed. It noted that the 3rd plaintiff as P.W.1 marked Ex.A.1 registered partition deed, dated 14-04-1931 in respect of allotment of Ac.4-05 cents and Exs.A.8 and A.9 to show the sale of Ac.0-70 cents by Peda Kotayya and Lakshmyya to Chukka Venkateswarlu, son of Lakshmaiah in 1935. P.W.1 further stated about the sale of Ac.0-40 cents by the 1st plaintiff under Ex.A.10 in 1951 and the sale of Ac.0-76 cents by all the plaintiffs under Ex.B.1, dated 25-07-1951 to the 2nd defendant. The trial Court also referred to the sale of Ac.1-00 to the 1st defendant under Ex.B.4 and Ac.0-50 cents under Ex.A.2 on 22-02-1967. P.W.2, the cousin of P.W.1, and P.W.3, a neighbouring land owner, also deposed about such facts and circumstances said to be covering the sale of Ac.2-70 cents leaving Ac.1-35 cents to the plaintiffs. The trial Court further referred to the evidence of the 1st defendant as D.W.1 about purchase of Ac.1-50 cents under Exs.A.2 and B.4 and another Ac.0-50 cents also in S.No.146/1B, which was divided into plots and sold to the 15th defendant and others as house sites. The trial Court also dealt with the evidence of the 2nd defendant as D.W.2 about purchase of Ac.0-49½ cents under Ex.B.2 from Nagaiah and Ac.0-76 cents under Ex.B.1 from the plaintiffs, out of which he sold Ac.0-26 cents to Kotaiah under Ex.A.11, leaving the remaining land with him. While noting that the 2nd defendant admitted the possession of Ac.0-50 cents with the plaintiffs, the trial Court referred to the evidence of D.W.3 about cultivating the land of D.W.2 and Chukka Venkateswarlu on lease, the evidence of D.W.4 about the purchase of Ac.0-11½ cents each by his sons, the 4th and 5th defendants under Exs.B.6 and B.7, the evidence of D.W.5 about his attesting Exs.B.6 to B.9 and the evidence of D.W.6 about the purchases by defendants 28 and 29 of Ac.0-11½ cents each from P. Rama Rao. 19. The trial Court referring to the contentions of the parties, upheld the original title for Ac.4-05 cents in S.No.146/1A for the family of the plaintiffs and sale of Ac.2-70 cents by them leaving a balance of Ac.1-35 cents. 19. The trial Court referring to the contentions of the parties, upheld the original title for Ac.4-05 cents in S.No.146/1A for the family of the plaintiffs and sale of Ac.2-70 cents by them leaving a balance of Ac.1-35 cents. It further noted that possession of Ac.0-50 cents of land with the plaintiffs, which is not part and parcel of the land claimed by the defendants, is admitted and hence, concluded that as the plaintiffs are claiming balance of Ac.1-35 cents of land owned by them, they will take possession of the same if such an extent is available in the suit survey number and if the extent is less than Ac.4-05 cents, then the plaintiffs cannot proceed against the purchasers. Accordingly, the trial Court held the plaintiffs to be entitled for possession of Ac.0-85 cents of land, for which the suit is filed, observing that they can take possession of the remaining land only after the extent of Ac.2-70 cents is accounted for on land. The objections about the boundaries of the plaint schedule were rejected and as the land was found to be vacant by the learned advocate commissioner appointed in the suit, the trial Court found no occasion to apply any principles of equity. It also observed that if any alienees are not added as parties to the suit, the judgment and decree will not bind them, but the suit cannot be considered bad for non-joinder of necessary parties. Any plea of bar of limitation is also rejected and the suit was decreed without costs granting three months time to the defendants to remove constructions made in any part of the suit property and deliver possession to the plaintiffs. The plan A of Ex.A.12 was directed to be appended to the decree. 20. The appellant in C.M.S.A. No.90 of 2005 filed E.A. No.259 of 1996 in E.P. No.75 of 1995 in O.S. No.91 of 1983 in the execution petition filed by the plaintiffs claiming that he purchased Ac.0-07 cents described in the petition schedule from S. Sambasivarao and constructed a house in door No.12/132 in the same. He traced his title to Chintha Savitri Devi, a purchaser from the plaintiffs and her alienees and contended that his vendor was not a party to the suit. He traced his title to Chintha Savitri Devi, a purchaser from the plaintiffs and her alienees and contended that his vendor was not a party to the suit. The plaintiffs resisted the claim on the ground of the purchases being during the pendency of O.S. No.91 of 1983 and with knowledge of the same. The executing Court noted the obstruction by the claim petitioner to the delivery of property by the Amin on the strength of Ex.A.1 sale deed and referred to the evidence of the petitioner and his vendor as P.Ws.1 and 2 and the 3rd decree-holder as R.W.1. The executing Court noted that the petitioner, his vendor—P.W.2, his vendor Polineni Lakshmi Narayana and his vendor Muppalla Subba Rao trace their title to Chintha Savitri Devi, who purchased Ac.0-50 cents in S.No.146/1A. As Chintha Savitri Devi is also a party to O.S. No.91 of 1983 (as the 1st defendant), the executing Court considered the judgment and decree in O.S. No.91 of 1983 to have decided the sale of Ac.2-70 cents to be to Chintha Savitri Devi, Chukka Venkateswarlu, Chukka Kotayya and Chukka Venkatadri, only leaving Ac.1-35 cents with the plaintiffs therein and when the purchase by P.W.1 under Ex.A.1 does not mention the survey number and he is a transferee pendente lite, hit by Section 52 of the Transfer of Property Act, the petitioner is bound by the decree in O.S. No.91 of 1983. The executing Court concluded that the petitioner failed to prove his title and so, dismissed the claim petition. 21. The petitioner filed C.M.A. No.26 of 2004 against the same, which was decided by IV Additional District Judge (Fast Track Court), Ongole on 08-02-2005 holding that Exs.A.1 and A.4 came into existence during the pendency of O.S. No.91 of 1983 and that the vendors of P.W.1 were parties to O.S. No.91 of 1983, due to which Ex.A.1 is hit by the doctrine of lis pendens. The appellate Court also noted the failure of the petitioner in O.S. No.147 of 1995 filed by him and also considered the petition to be barred by time under Article 128 of Limitation Act read with Order XXI Rule 97 of the Code of Civil Procedure. The appeal was accordingly dismissed. 22. The appellate Court also noted the failure of the petitioner in O.S. No.147 of 1995 filed by him and also considered the petition to be barred by time under Article 128 of Limitation Act read with Order XXI Rule 97 of the Code of Civil Procedure. The appeal was accordingly dismissed. 22. A.S. No.801 of 1995 was filed by defendants 2 and 32 against the judgment and decree in O.S. No.91 of 1983 and when the 2nd respondent/2nd plaintiff died during pendency of the appeal, the legal representatives were brought on record as respondents 36 to 40. The appellants contended that Exs.B.1 and B.3, under which Ac.1-26 cents of land was purchased in S.No.146/1A, should have been relied on and the possession and enjoyment of the 2nd defendant since more than 30 years prior to the suit should have been appreciated. When the plaintiffs have admitted in the plaint and the plan about the 2nd defendant having Ac.0-70 cents to the South of the suit schedule, the suit ought to have been dismissed against the 2nd defendant. The decree is unexecutable without specification of which defendant being in occupation of the suit site and hence, the suit, which is bad for misjoinder and non-joinder of necessary and proper parties, ought to have been dismissed. 23. The appellant in C.M.S.A. No.90 of 2005 claimed that when the judgment and decree in the suit clearly stated that the alienees not made parties are not bound by judgment and decree, the appellant could not have been bound by the same under the guise of Section 52 of the Transfer of Property Act. What the appellant purchased is part of the land purchased by Chintha Savitri Devi, the 1st defendant in the suit, and the decree cannot be executed against the same, more so when there was no finding in the judgment about any possession of any defendant in Ac.0-85 cents claimed by the plaintiffs. As there was no effective decree to be executed till the determination and adjudication of any land in possession of defendants in excess of the lands sold to them, there could be no execution. No measurements were taken and no surveyor was appointed for the purpose and the execution petition is unsustainable. The extent of S.No.146/1A was not determined and the appellant living in the RCC building constructed in the plot, will be subjected to grave injustice. 24. No measurements were taken and no surveyor was appointed for the purpose and the execution petition is unsustainable. The extent of S.No.146/1A was not determined and the appellant living in the RCC building constructed in the plot, will be subjected to grave injustice. 24. The said appellant also contended that substantial questions of law that arise relate to the maintainability of the petition under Order XXI Rule 97 of the Code of Civil Procedure, when no application for removal of obstruction was filed by the decree-holders and the failure of the executing Court to decide the case on merits, more particularly about the decree not directing any particular defendant to deliver any particular piece of land and hence, being vague and unexecutable. The appellant also contended that the question of limitation and applicability of lis pendens are also substantial questions of law to be decided. 25. The appellant in C.M.S.A. No.90 of 2005 also filed A.S.M.P. No.1354 of 2005 to implead him as respondent in the main appeal on similar grounds and contending that the evidence in the suit shows that the plaintiffs sold Ac.3-19½ cents in S.No.146/1A in total while being in possession of Ac.0-50 cents by the date of the suit, out of which they sold Ac.0-40 cents after the suit. The sale to the 1st defendant was of an extent of Ac.1-50 cents in S.No.146/1A and Ac.0-50 cents in S.No.146/1B and such land of Ac.2-00 was not demarcated. When the 1st defendant was not proved to be in possession of any excess land than purchased by her, no decree for possession could have been granted including in respect of Ac.0-07 cents of the implead petitioner. 26. The plaintiffs opposed the request for impleadment claiming that on measurement, they were found to be having only Ac.0-50 cents with the remaining Ac.0-85 cents being in illegal occupation of the defendants, due to which they filed the suit. When the 1st defendant, the predecessor in title of the implead petitioner, was a party to the suit, her successors-in-interest need not be impleaded and the petition filed after 22 years after the suit is not bona fide. The order in C.M.A. No.26 of 2004 operates as res judicata. 27. When the 1st defendant, the predecessor in title of the implead petitioner, was a party to the suit, her successors-in-interest need not be impleaded and the petition filed after 22 years after the suit is not bona fide. The order in C.M.A. No.26 of 2004 operates as res judicata. 27. The appellants sought for producing extract of the sale deed dated 14-12-1935 and the publication issued on 28-01-2003 by the plaintiffs as additional evidence contending that the plaintiffs sold another Ac.0-30 cents under the first document, which was suppressed from the trial Court and there appear to be registered sale deeds in respect of various other extents. The plaintiffs merely wanted to ascertain the actual extents in the speculative suit and the conduct of the plaintiffs is evident from the paper publication trying to prevent the defendants from selling even their own lands. They also claimed that the lands in the locality were developed into house plots with buildings constructed, roads laid and electricity connected and about Ac.0-70 cents of land in S.No.146/1A is covered by Panchayat roads. 28. The plaintiffs opposed the request to receive additional evidence contending that the 2nd defendant’s counsel stated before this Court only about there being no proper measurements and the 2nd defendant being unnecessarily impleaded. Now they seek to contend that Ac.3-66 cents but not Ac.2-70 cents were sold i.e. Ac.1-50 cents to the 1st defendant and Ac.1-20 cents to the 2nd defendant only. The sale of Ac.0-30 cents under registered sale deed dated 14-12-1935 is part of Ac.2-70 cents and the same was sold by Chukka Venkaiah to Chukka Venkateswarlu under registered sale deed dated 11-06-1941. The said Chukka Venkateswarlu purchased another Ac.0-30 cents and Ac.0-10 cents respectively under sale deeds dated 14-12-1935 and 11-11-1935, on which he became the owner of Ac.0-70 cents. It was sold to Burra Nagaiah under Ex.B.2, which was again sold to the 1st appellant (2nd defendant) under the sale deed dated 22-12-1961. Any minor variations do not matter and hence, the petition be dismissed. 29. In A.S. No.801 of 1995, during the course of hearing, Hon’ble Sri Justice P.S. Narayana passed an order on 02-11-2005 noting that the advocate commissioner appointed in I.A. No.1450 of 1983 in the suit could not locate the survey No.146/1A and therefore, noted only the features shown by the plaintiffs. 29. In A.S. No.801 of 1995, during the course of hearing, Hon’ble Sri Justice P.S. Narayana passed an order on 02-11-2005 noting that the advocate commissioner appointed in I.A. No.1450 of 1983 in the suit could not locate the survey No.146/1A and therefore, noted only the features shown by the plaintiffs. As the exact identity and location of the extent of Ac.0-85 cents in S.No.146/1A is seriously in dispute, the learned Judge considered it just and proper that a commissioner be appointed to locate the property so as to resolve the controversy conveniently and effectively with the assistance of a surveyor, if need be. Hence, without expressing any opinion on all other questions, which were canvassed before the learned Judge, the Senior Civil Judge, Chirala was directed to appoint an advocate commissioner for purpose of taking measurements of the total extent of S.No.146/1A of Kothapet and to demarcate, identify and exactly locate the plaint schedule property of an extent of Ac.0-85 cents therein by taking the assistance of a surveyor. The trial Court was also given liberty to record the evidence of the commissioner and the surveyor at the instance of the parties or suo motu and on completion of the exercise, the trial Court was directed to submit the commissioner’s report and other material evidence to this Court. 30. Accordingly, the Senior Civil Judge, Chirala submitted his report along with the report of the advocate commissioner, the report of the Mandal Surveyor, depositions of C.W.1 and C.W.2 and other material papers along with his letter, dated 14-09-2006. 31. Sri G. Ram Gopal, learned counsel for the appellants in A.S. No.801 of 1995, Sri K. Harinath, learned counsel for the 17th respondent in A.S. No.801 of 1995 and the petitioner in A.S.M.P. No.1354 of 2005/appellant in C.M.S.A. No.90 of 2005, Sri V.L.N.G.K. Murthy, learned counsel for respondents 1 to 4 and 36 to 40 and Sri Meharchand Nori, learned counsel for 13th respondent are heard at length. 32. The following points arise for consideration and determination herein: (1) Whether the petitioner in A.S.M.P. No.1354 of 2005 needs to be impleaded in A.S. No.801 of 1995 ? (2) Whether the additional evidence sought to be produced along with A.S.M.P. No.1931 of 2005 has to be received ? (3) Whether the plaint schedule property is capable of being identified ? The following points arise for consideration and determination herein: (1) Whether the petitioner in A.S.M.P. No.1354 of 2005 needs to be impleaded in A.S. No.801 of 1995 ? (2) Whether the additional evidence sought to be produced along with A.S.M.P. No.1931 of 2005 has to be received ? (3) Whether the plaint schedule property is capable of being identified ? (4) Whether the plaintiffs are entitled to recovery of possession of any such property and if so, to what extent and from which defendants ? (5) To what relief ? Point No.1: 33. The petitioner in A.S.M.P. No.1354 of 2005 did not attempt to be impleaded in the suit and is making such a request only on his failure in his claim petition and appeal against the dismissal of the same. Sri V.L.N.G.K. Murthy, learned counsel for respondents 1 to 4 and 36 to 40 referred to Lordsvale Finance Plc v. Bank of Zambia (1996) 3 All ER 156 laying down the principle of election which essentially involves the availability to the party of two or more distinct juridical routes and to commence proceedings and pursue them to judgment based on one such juridical route operates as an election to exclude the other available routes. 34. The learned counsel also relied on R. Samudra Vijayam Chettiar v. Srinivasa Alwar and others AIR 1956 MADRAS 301 laying down the principle that where a man is entitled to one of two inconsistent rights and he has with full knowledge done an unequivocal act indicating his choice of the one, he cannot afterwards pursue the other which after the first choice is by reason of the inconsistency no longer open to him. The principle is that where a man has an option to choose one or other of two inconsistent things, when once he has made his election, it cannot be retracted, is final and cannot be altered. 35. The learned counsel further referred to Humayun Properties Ltd. V. Ferrazzinis (Private) Ltd. AIR 1963 CALCUTTA 473 reiterating the principle that waiver or acquiescence like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them and chooses one benefit instead of another, either, but not both, of which he might claim. It was laid down that where a party has two rights, the mere exercise of one right does not amount to waiver of the other, but if there are alternative rights, the exercise of one right might imply that the party has waived the exercise of the other. 36. The appellant in C.M.S.A. No.90 of 2005, of course, took recourse to the filing of a claim petition styled to be one under Order XXI Rule 97 read with Section 151 of the Code of Civil Procedure to claim Ac.0-07 cents of the land described in his petition schedule and the purchase of the said property by him was from Sabbineni Sambasiva Rao, who, in turn, was claimed to have purchased the same from the 22nd defendant in O.S. No.91 of 1983, who was a purchaser from the 26th defendant, who, in turn, purchased the same from the 1st defendant. The learned counsel, Sri V.L.N.G.K. Murthy, also contended that it is only a third party in possession of a property claiming independent right that can resist a decree for possession of such property under execution by seeking adjudication of his objections under Order XXI Rule 97 of the Code of Civil Procedure and not a purchaser from one of the defendants pendente lite like the petitioner in A.S.M.P. No.1354 of 2005. The learned counsel further contended that apart from being hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, the said petitioner cannot also take recourse to Order I Rule 10 of the Code of Civil Procedure to seek impleadment in the appeal, as the present appeal is not at the instance of defendants 22, 26 and 1, who are the predecessors-in-interest in respect of the property claimed and his presence in the appeal cannot be considered necessary for the determination of the real matter in dispute. 37. 37. Sri K. Harinath, learned counsel, relied on Rameshwar Prasad v. Shambehari Lal Jagannath AIR 1963 SUPREME COURT 1901, wherein the Apex Court referred to Order XLI Rule 4 of the Code of Civil Procedure and explained the principle behind it to be that any one of the plaintiffs or defendants, in filing such an appeal, represents all the other non-appealing plaintiffs or defendants, as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. The learned counsel also contended that as the purchases by defendants 22 and 26 were much prior to the suit, the question of lis pendens does not arise. 38. The contention that the filing of a claim petition under Order XXI Rule 97 of the Code of Civil Procedure and the petition to get impleaded in the appeal against the judgment and decree, in execution of which, the possession of the petitioner was sought to be interfered with, are inconsistent and mutually exclusive remedies, is not shown to be based on any principle of jurisprudence. If the purchase by the petitioner is hit by doctrine of lis pendens, he will be, undoubtedly, a proper party, acceptance of whose request for being heard on merits will be in the interests of justice. If his purchase is not hit by doctrine of lis pendens, then also it will be appropriate to secure the ends of justice to hear him before any interference with his possession on the strength of a decree, to which he was not a party. The petitioner may not be a necessary party, but it can be said, without any fear of contradiction, that he will be a proper party to the appeal. While any applicability of doctrine of election does not appear to exist in view of there being no inconsistency between the petitioner resisting the execution of the decree and seeking to contest the decree by being impleaded in the appeal and in the light of the principles laid down by the Apex Court concerning the consequences of Order XLI Rule 4 of the Code of Civil Procedure, the fact that the predecessors-in-interest of the petitioner are not the appellants, will not make any difference to his request. As such, the petitioner has to be impleaded in the appeal also for an effective and comprehensive adjudication of the questions in controversy. Point No.2: 39. The two additional documents sought to be introduced into evidence were stated to be unavailable in spite of exercise of due diligence during the pendency of the suit. The first document being a sale deed in respect of part of the subject property, which transaction was not brought to the notice of the trial Court by either party, the same is, undoubtedly, a relevant piece of evidence, which has to be appreciated with reference to the explanation for the transaction sought to be offered by respondents 1 to 4 in their counter. The other document is only a paper publication said to have been made at the instance of the plaintiffs, intended to indicate the conduct of the plaintiffs, which has no direct bearing on the questions in controversy, but no prejudice will be caused to any party by looking into the same, while determining the appeal. Under Order XLI Rule 27 of the Code of Civil Procedure, additional evidence can be admitted when such evidence was not within the knowledge of the party seeking to produce the same in spite of exercise of due diligence and as the plea to that effect does not appear to be liable to be disbelieved, the documents can be admitted as additional evidence in the interests of justice. Hence, the said documents be received as Exs.B.11 and B.12. Point Nos.3 and 4: 40. The 3rd plaintiff as P.W.1 referred to Ex.A.1 registered partition deed, dated 14-04-1931, in which the property that fell to the share of Mallarapu Kotayya and Lakshmayya was described in ‘B’ schedule and the extent of Ac.4-05 cents in S.No.146/1A was one of the items that fell to their share. He then referred to Ex.A.8 dated 10-12-1935 under which Kotayya and Lakshmayya sold Ac.0-30 cents to Chukka Venkateswarlu, son of Lakshmayya, while another Ac.0-30 cents were earlier sold to the same vendee on 05-12-1935. P.W.1 further stated about Chukka Venkateswarlu selling the same to Nagaiah and Nagaiah selling the same to the 2nd defendant and his brother. The 3rd plaintiff claimed the extent sold to be Ac.0-70 cents obviously including another Ac.0-10 cents sold under Ex.A.9, dated 11-11-1935. P.W.1 further stated about Chukka Venkateswarlu selling the same to Nagaiah and Nagaiah selling the same to the 2nd defendant and his brother. The 3rd plaintiff claimed the extent sold to be Ac.0-70 cents obviously including another Ac.0-10 cents sold under Ex.A.9, dated 11-11-1935. Under Ex.A.10, dated 25-07-1951, the 1st plaintiff for herself and her minor children sold Ac.0-40 cents each in S.No.146/1A and S.No.146/1B to Chukka Kotayya, son of Peraiah. P.W.1 claimed that the 1st plaintiff and Lakshmayya sold another Ac.0-76 cents in S.No.146/1A to the 2nd defendant in 1959, out of which the 2nd defendant sold Ac.0-26 cents to Chukka Kotayya in 1953 and hence, according to him, the 2nd defendant should have only Ac.0-50 cents and Chukka Kotayya should have Ac.0-66 cents in S.No.146/1A. P.W.1 further stated that Lakshmayya and his son Sambasiva Rao sold Ac.0-50 cents to the 1st defendant in S.No.146/1A under Ex.A.2, dated 22-03-1967 (22-02-1967), while they sold another Ac.0-34 cents to the 1st defendant along with Chukka Kotayya, who also sold Ac.0-66 cents to the 1st defendant. Thus, the evidence of P.W.1 states about Ac.1-50 cents being purchased by the 1st defendant in S.No.146/1A, while the 2nd defendant should have about Ac.0-70 cents acquired through Chukka Venkateswarlu and Ac.0-50 cents acquired through the 1st plaintiff making a total of about Ac.1-20 cents and P.W.1 claims that they still have Ac.1-35 cents of land in S.No.146/1A, out of Ac.4-05 cents after deducting Ac.2-70 cents sold. 41. P.W.1 further stated about the partition between them and Lakshmayya under Ex.A.3 partition deed, dated 25-05-1967, which stated about Ac.1-00 of land in S.No.146/1A falling to the share of the plaintiffs, bounded by the 2nd defendant’s land on the South and Chinta Indiradevi’s land on the North. A recital of significance in Ex.A.3 partition deed is that the parties and the documents were specific that except those properties, which were specified to be partitioned, they had no other movable or immovable properties to be partitioned. P.W.1 further spoke about Kotayya and Lakshmayya purchasing Ac.0-95¾ cents in S.No.146/1B under Ex.A.4, dated 14-09-1931. Defendants 1 to 3 were claimed by P.W.1 to have objected to any claim of the plaintiffs beyond Ac.0-50 cents, while the plaintiffs claimed to be in possession and enjoyment of Ac.0-85 cents, which is a vacant land. P.W.1 further spoke about Kotayya and Lakshmayya purchasing Ac.0-95¾ cents in S.No.146/1B under Ex.A.4, dated 14-09-1931. Defendants 1 to 3 were claimed by P.W.1 to have objected to any claim of the plaintiffs beyond Ac.0-50 cents, while the plaintiffs claimed to be in possession and enjoyment of Ac.0-85 cents, which is a vacant land. While Exs.A.5 to A.7 cist receipts do not establish the extent for which the cist was paid, while the plaintiffs admittedly have Ac.0-50 cents of land in the said survey number, defendants 4 to 33 were claimed by P.W.1 to be purchasers from defendants 1 to 3. 42. P.W.2, who is the son of Lakshmayya and first cousin of P.W.1, also claimed about sale of Ac.0-70 cents to Chukka Venkateswarlu, son of Lakshmayya, Ac.0-55 cents to Chukka Kammayya, son of Raghavulu, Ac.0-40 cents to Chukka Kotayya, son of Peraiah, Ac.0-76 cents to the 2nd defendant and Ac.0-40 cents to Chukka Kotayya. While he claimed that the entire land in S.No.146/1B purchased by them was sold away, he again stated that Ac.0-70 cents to Chukka Venkateswarlu, Ac.0-76 cents to the 2nd defendant, Ac.0-40 cents to Chukka Kotayya and Ac.0-94 cents to the 1st defendant, making a total of Ac.2-80 cents, were sold away by them leaving a balance of Ac.1-35 cents to the plaintiffs. As the possession of the plaintiffs for Ac.0-50 cents was admitted, the plaintiffs filed the suit for the balance of Ac.0-85 cents, the possession of which was never lost by them, according to P.W.2 and it is to be noted that the claims of P.Ws.1 and 2 regarding the sales do not exactly match with each other. 43. P.W.3, who claimed to be a neighbouring land owner, is the son-in-law of the maternal uncle of plaintiffs 2 to 4 and thus, the evidence of P.Ws.1 to 3 tainted with interestedness, requires close and careful scrutiny before acceptance and P.W.3 does not substantiate the basis on which he could assert that the plaintiffs should own Ac.1-35 cents in S.No.146/1A. 44. The 1st defendant as D.W.1 spoke about purchasing Ac.1-50 cents in D.No.146/1A and Ac.0-50 cents in S.No.146/1B under Exs.A.2 and B.4 registered sale deeds on 22-02-1967 dividing the same into small plots and alienating them to the 15th defendant and others as house sites, being left with no possession of any portion of that land. 44. The 1st defendant as D.W.1 spoke about purchasing Ac.1-50 cents in D.No.146/1A and Ac.0-50 cents in S.No.146/1B under Exs.A.2 and B.4 registered sale deeds on 22-02-1967 dividing the same into small plots and alienating them to the 15th defendant and others as house sites, being left with no possession of any portion of that land. D.W.3 only spoke about his cultivation of the land of the 2nd defendant and Chukka Venkateswarlu on lease, while D.W.4 spoke with reference to Exs.B.6 to B.9 about the purchase of Ac.0-11½ cents each by his sons, the 4th and 5th defendants, the vendor’s title being traced from the 1st defendant. D.W.5 is the attestor of the documents, while D.W.6 similarly spoke about the 28th and 29th defendants purchasing Ac.0-11½ cents each from P. Rama Rao and his wife also purchasing a similar site under Ex.X.1. The evidence of D.Ws.3 to 6, whose claims emanate from the claims of defendants 1 and 2, do not have much independent significance, while the claim of the 1st defendant about purchasing Ac.1-50 cents of land in S.No.146/1A is corroborated by the evidence of P.W.1 himself. 45. The 2nd defendant as D.W.2 admitted that he purchased Ac.0-76 cents from the 1st plaintiff and sold away Ac.0-26 cents to Chukka Kotayya under Ex.A.11 out of the same, which obviously leaves Ac.0-50 cents. He also claims to have purchased Ac.0-49½ cents in the same survey number under Ex.B.2 and Ac.0-55 cents from the 1st plaintiff in S.No.146/1B. While he admitted the total extent of S.No.146/1A to be Ac.4-05 cents, he purchased in total Ac.1-25½ cents as per his version. It is true that Ex.B.3 covers Ac.0-49¼ cents out of Ac.0-99¼ cents in S.Nos.146/1A and 142/2 and Ex.B.2 document of title of the vendors under Ex.B.3 was also in respect of similar extent of land. Hence, the claim of the 2nd defendant that the entire Ac.0-49¼ cents is in S.No.146/1A, is patently incorrect and D.W.2 claimed that he is still in possession of Ac.0-49½ cents owned by him to the South of Ac.0-50 cents in the possession of the plaintiffs, which was not specifically pleaded in the written statement. He admitted selling Ac.0-50 cents to Subbarao and others. He admitted selling Ac.0-50 cents to Subbarao and others. While admitting that the disputed property, which was vacant then, was useful for house sites, the 2nd defendant also stated about his father purchasing Ac.0-10 cents under Ex.B.10, the vendors of which purchased it from Mallarapu Kotayya and Lakshmayya under Ex.A.9. D.W.2 also admitted that he has no land to the North of Ac.0-50 cents of the plaintiffs and has no objection if a decree is to be granted for the land to the North of that Ac.0-50 cents. D.W.2 again stated that Ac.0-10 cents under Exs.B.10 and A.9 as well as Ac.0-60 cents to the South of Ac.0-50 cents are still in the possession of the plaintiffs and while appreciating his evidence, his age of 70 years also should be kept in view. 46. The plaint plan Ex.A.12 is as though the land of Ac.1-35 cents claimed by the plaintiffs is between the land sold under Ex.B.5 to the 1st defendant and the land sold under Exs.A.8 and A.9 to Chukka Venkateswarlu. The description of the boundaries in Exs.B.5, A.8 and A.9, of course, is consistent with the said claim, but the property which fell to the share of the plaintiffs under Ex.A.3 partition deed, dated 25-02-1967 is only Ac.1-00, bounded by the land of the 2nd defendant on the South and the land of Chintha Indiradevi on the North, as already stated. 47. Sri G. Ram Gopal, learned counsel for the appellants refers to the sales effected in S.No.146/1A by the plaintiffs or their predecessors under Exs.A.9, A.8, A.10, B.1, A.2 and B.4 totalling to Ac.3-36 cents out of Ac.4-05 cents leaving only Ac.0-69 cents and if the sale of Ac.0-30 cents under Ex.B.11, dated 14-12-1935 were to be separately accounted for, the balance available would be only Ac.0-39 cents. If the plaintiffs are in possession of Ac.0-50 cents admittedly, they might be in fact in possession of Ac.0-11 cents more than what they are entitled to. Ex.A.3 partition deed mentioned the available land for partition in S.No.146/1A to be only Ac.1-00, also may be due to such mention in approximation taking into account the sales effected under the above said documents. 48. Ex.A.3 partition deed mentioned the available land for partition in S.No.146/1A to be only Ac.1-00, also may be due to such mention in approximation taking into account the sales effected under the above said documents. 48. In the counter-affidavit for respondents 1 to 4 in A.S.M.P. No.1931 of 2005, it was sought to be explained that Ac.0-30 cents sold under Ex.B.11 were sold to Chukka Venkateswarlu under a registered sale deed, dated 11-06-1941 making him, in total, owner of Ac.0-70 cents in the said survey number coupled with the purchases made under Exs.A.8 and A.9, which land was covered by Exs.B.2 and B.3. However, the affidavit of the 3rd respondent clearly admitted that there is small variation in extents in the sale deeds. The sale deed, dated 11-06-1941 is not before the Court and the incorrectness of the claim is evident from Ex.A.8 executed in favour of Chukka Venkateswarlu by Kotayya and Lakshmayya, wherein it was specifically recited, as already stated, that out of Ac.0-60 cents within specified boundaries, half was already sold to the purchaser on 05-12-1935, while Ex.A.8 covers the remaining half. If there is small variation in extents in the sale deeds and if Ex.B.11 covers an area of Ac.0-30 cents not covered by other documents, the mention in Ex.A.3 partition deed about only Ac.1-00 being left for partition, is more or less correct, while any motives indicated by Ex.B.12 public notice in the newspaper are irrelevant for determination of the civil rights of the parties. 49. It is, thus, evident that the averments in the plaint give an impression of sale of Ac.3-36 cents, out of Ac.4-05 cents under different transactions, though it was ultimately claimed that only Ac.2-70 cents were sold by the plaintiffs or their predecessors. If Ex.B.11 sale is beyond the sales specified in the plaint, only Ac.0-39 cents remain for the plaintiffs, while the specification in Ex.A.3 partition deed may appear more or less correct if the other sales cover Ac.2-70 cents and Ex.B.11 covers Ac.0-30 cents, leaving approximately a balance of about Ac.1-00. If Ex.B.11 sale is beyond the sales specified in the plaint, only Ac.0-39 cents remain for the plaintiffs, while the specification in Ex.A.3 partition deed may appear more or less correct if the other sales cover Ac.2-70 cents and Ex.B.11 covers Ac.0-30 cents, leaving approximately a balance of about Ac.1-00. While it is true that the evidence of the defendants’ witnesses, more particularly D.W.2, may not be claiming more than Ac.1-50 cents for the 1st defendant and Ac.1-20 cents for the 2nd defendant, who, in turn, sold their lands as house plots to various others, the discrepancy of Ac.0-66 cents appears to be relating to such extent purchased by Chukka Kotayya. But it is seen from Exs.A.2 and B.4 that the said extent of Ac.0-66 cents appears to be covered by Exs.A.2 and B.4. That leaves Ac.1-35 cents out of Ac.4-05 cents, over which the plaintiffs can lay their claim, while Ex.B.11 read with Ex.A.3 may indicate such land, over which the plaintiffs can lay their claim, to be between Ac.1-00 and Ac.1-05 cents. 50. The plaintiffs, as per the evidence on record, are in possession only of Ac.0-50 cents and not Ac.1-00 or Ac.1-05 cents or Ac.1-35 cents. But there is no clarity in the evidence as to which defendant is in possession of such an extent of land. While the 1st defendant claims to be not in possession of any portion of the suit survey number after she sold away her entire Ac.1-50 cents as house plots, the 2nd defendant claims to have in his possession only Ac.0-49½ cents to the South of Ac.0-50 cents, which is in tune with the description of the Southern boundary to Ac.0-50 cents in possession of the plaintiffs as per Ex.A.12 plaint plan. The suit land of Ac.0-85 cents is described in Ex.A.12 to be bounded by the said Ac.0-50 cents of the plaintiffs on the South and the land purchased under Ex.B.5 by the 1st defendant on the North, thus, making the claims of the 2nd defendant as D.W.2 about the absence of any objection even if a decree were to be granted in respect of the land, which is on the North of Ac.0-50 cents of the plaintiffs, in tune with his claims. However, as already stated, there is no clarity as to the localization of the said land of Ac.0-85 cents and as to why the plaintiffs themselves claimed only Ac.0-50 cents originally, amended later to Ac.0-85 cents as per orders on I.A. No.1657 of 1992 after nine years after the suit and as to why the Northern boundary for the land claimed was only mentioned as land in S.No.146/1B now amended as the remaining land in S.No.146/1A as per the orders on I.A. No.1736 of 1994, which implies such difference in the description of the property as may make the property originally claimed and the property now claimed not one and the same. 51. The trial Court rightly placed the burden of proof on the plaintiffs, but suggested a simplistic solution on the calculation of the extents sold under various documents and the balance that must have been left on land to conclude that the plaintiffs are claiming only the balance land in S.No.146/1A not sold by them and if at all such extent of Ac.1-35 cents is there in the suit survey number, they will take possession and if the extent is less than Ac.4-05 cents in the suit survey number, they will not be able to proceed against the remaining extent after excluding Ac.2-70 cents sold, which is in possession of either the defendants or third parties as purchasers. When even the plaintiffs did not state in the plaint or evidence as to which defendant out of 33 defendants sued by them was in possession of which extent out of the said Ac.0-85 cents, a decree for possession against all cannot be considered capable of definite execution. The trial Court also noted that the entire land was vacant without any constructions by the time of visit of the advocate commissioner, but obviously the advocate commissioner did not identify either the disputed land or the possessors of such land. While noting that some alienees, who purchased portions of the land in the suit survey number, were not added as parties, still the trial Court tried to overcome the same by stating that the judgment and decree will not bind such alienees who are not made parties and the plaintiffs would be the sufferers, if they fail to implead the other alienees. That such a judgment and decree would be disastrous to the rights claimed by such alienees, is illustrated by the predicament of the petitioner in A.S.M.P. No.1354 of 2005. 52. That was why Hon’ble Sri Justice P.S. Narayana noting the inability of the first advocate commissioner to localize S.No.146/1A, observed that appointment of an advocate commissioner to take measurements of total extent of S.No.146/1A and demarcating, identifying and exactly locating the suit property of Ac.0-85 cents with the assistance of surveyor, are necessary to resolve the controversy conveniently and effectively and gave consequential directions. The superficial direction permitting the plaintiffs to take possession of whichever land is available only from the persons who are parties to the suit, was obviously not considered a workable arrangement. 53. That it is so becomes further evident from the report of the advocate commissioner and all connected papers received from the trial Court in obedience to the said direction. 54. The advocate commissioner in his report noted most of S.No.146 to be occupied by houses without visibility of the boundary stones. The learned commissioner found from the documents that Exs.A.10 and B.1 do not reflect the availability of any extent of Ac.0-34 cents still belonging to the plaintiffs in between Ac.0-66 cents of Chukka Kotayya and Ac.0-50 cents of the 2nd defendant. As per enjoyment also, the learned advocate commissioner found defendants 1 and 2 and their purchasers to have constructed houses in deviation of the registered sale deeds and that only Ac.0-76 cents of land is available between the lands of defendants 1 and 2, which is claimed by the plaintiffs’ family and opposed by Mallarapu Sambasivarao and Chukka Ramulu at Ac.0-35 cents and Ac.0-30 cents respectively. Ac.0-35 cents seem to be subject matter of O.S. No.10 of 2002 and I.A. No.1137 of 2004 before Senior Civil Judge’s Court, Chirala and the advocate commissioner also found that the absence of any specification of the person in possession of the remaining land in S.No.146/1A described as the Northern boundary also made it difficult to identify the plaint schedule land of Ac.0-85 cents. 55. The report of the surveyor appended to the commissioner’s report also stated that the boundaries of the suit land as described, are not identifiable. 55. The report of the surveyor appended to the commissioner’s report also stated that the boundaries of the suit land as described, are not identifiable. The surveyor also referred to the absence of identification of Ac.0-34 cents added to Ac.0-66 cents of Chukka Kotayya and he also noted that for Ac.0-54 cents, there was no document covering the same. The plans attached to the surveyor’s report are to the same effect. The plaintiffs in their objections to the reports claimed the advocate commissioner and the Mandal Surveyor to have purposefully omitted to identify the suit property though it was possible. One Karanam Subbarao, purchaser of the property from respondents 20 to 22 in A.S. No.801 of 1995, stated that his claim petition against the plaintiffs was allowed on 01-03-2005 in E.A. No.258 of 1996 in E.P. No.75 of 1995 in O.S. No.91 of 1983. The purchase was said to be from the 1st defendant and others and that the houses constructed by him, the petitioner in A.S.M.P. No.1354 of 2005 and others, situated in Ac.0-50 cents, have nothing to do with the suit property. He claimed that the houses are located in the land covered by Ex.B.5. The petitioner in A.S.M.P. No.1354 of 2005 also raised similar objections. 56. The trial Court had examined the advocate commissioner and the surveyor and the elaborate cross-examination of both the witnesses does not appear to have brought out any strong reasons for disagreeing with their independent reports. The surveyor was specific that the boundaries mentioned in the plaint schedule are wrong and though both the witnesses stated about locating S.No.146/1A, there appeared no satisfactory way by which the suit land could have been identified with certainty. The entire area is fully occupied by buildings and roads as of now. 57. The surveyor was specific that the boundaries mentioned in the plaint schedule are wrong and though both the witnesses stated about locating S.No.146/1A, there appeared no satisfactory way by which the suit land could have been identified with certainty. The entire area is fully occupied by buildings and roads as of now. 57. The remarks of the Senior Civil Judge, Chirala submitted as per the directions of this Court show that the plaintiffs have not chosen to evince any interest to assist the commissioner and the surveyor and coupled with the evidence already on record, which was referred to, it appears from the reports of the advocate commissioner and the surveyor that there are irreconcilable inconsistencies in the documents and enjoyment apart from the factual incorrectness of the boundaries specified in the plaint schedule and the physical unavailability of any extent of Ac.0-85 cents on land now in the possession of any defendant or a third party. A decree cannot follow on the presumption that the claimed Ac.0-85 cents must be in the possession of defendants 1 and 2 or their children or alienees as claimed in the plaint. 58. While the parties did not file any objections against the reports of the advocate commissioner and surveyor before this Court, the fait accompli presented by the physical situation on land shows any possibility of acceptable identification of the plaint schedule land not probable and any workable and executable judgment and decree against anybody in respect of such land to be not plausible. 59. The pleadings and evidence in E.A. No.259 of 1996 in E.P. No.75 of 1995 in O.S. No.91 of 1983, which is the subject matter of C.M.A. No.26 of 2004 and C.M.S.A. No.90 of 2005, do not throw any further light on the questions in controversy in the suit itself. The dismissal of the claim petition was on the ground of the judgment and decree in the suit binding a transferee pendente lite apart from the document of title of the petitioner not referring to any survey number and the failure of the petitioner to establish his title to the suit property. Only the petitioner and his vendor were examined for the petitioner, while the title ultimately traced to the 1st defendant as per Exs.A.1 to A.7, was admitted by the 3rd respondent as R.W.1. Only the petitioner and his vendor were examined for the petitioner, while the title ultimately traced to the 1st defendant as per Exs.A.1 to A.7, was admitted by the 3rd respondent as R.W.1. The failure of the petitioner before District Court was on the grounds of lis pendens under Section 52 of the Transfer of Property Act and the non-maintainability of a petition under Order XXI Rule 97 of the Code of Civil Procedure due to the bar of limitation. The failure of the petitioner, therefore, was more on technical grounds before both the Courts below, a deeper probe into which will be superfluous in view of the conclusions about the unidentifiability of the suit land and unexecutability of any decree for the same. 60. As held in Nahar Singh v. Harnak Singh and others (1996) 6 Supreme Court Cases 699, unless the property in question for which the relief has been sought for is identifiable, no decree can be granted in respect of the same. 61. As held in Naspuri Dharmaiah and another v. Kota Veeraiah 1993 (3) ALT 712 , the admission made by the defendant cannot form the basis of a decree and there must be some evidence in support of the possession of the plaintiff. The Court has a duty to see whether the plaintiff is entitled under law to get the relief sought for and therefore, the so called admissions of D.W.2 cannot form the sole basis for any success of the plaintiffs. 62. The Apex Court observed in P. Chandrasekharan and another v. S. Kanakarajan and others 2007 (4) ALD 70 (SC) that in case the suit is decreed, the Executing Court must be able to deliver possession thereof and thus, there cannot be any doubt whatsoever that the property in the suit must be adequately identifiable. 63. That the plaintiffs could not have succeeded without impleading the persons in possession of the claimed land, is evident from Devi Sahai Palliwal v. Union of India and another (1976) 4 Supreme Court Cases 763 and patently as seen from the Amin’s report in E.P. No.75 of 1995, the persons in possession are owners of three dabas including the petitioners in E.A.Nos.258 and 259 of 1996, who were not parties to the suit. 64. 64. While the sale deed in favour of the petitioner in A.S.M.P. No.1354 of 2005 could not have been ignored on the ground of non-mention of survey number, when the identify of the property is clear in the light of the principle laid down in Mahendra C. Mehta and others v. Kousalya Co-op. Housing Society Ltd. 2001 (5) ALD 102 , a host of precedents were cited on either side about various questions raised in C.M.S.A. No.90 of 2005 and about impleading the petitioner in A.S.M.P. No.1354 of 2005 as a party to the main appeal, a deeper probe into which becomes redundant in view of the conclusions about the disentitlement of the plaintiffs to the reliefs in the suit itself. The impleading of the claimant in the main appeal would help avoid multiplicity of proceedings. 65. Thus, it has to be concluded that the trial Court granting a decree on mere mathematical calculation of balance of land that must have been available after deducting the lands covered by various documents from an extent of Ac.4-05 cents, which must have been available in the survey number as per revenue records, is unsustainable. It is equally untenable to grant any relief of possession without identification or identifiability of the land claimed and without the actual persons in possession or the persons through whom they were claiming such possession not being proved to be liable to suffer any such decree at the instance of the plaintiffs. The plaintiffs cannot succeed solely on the weaknesses in the version of the defendants or on the alleged admissions of the 2nd defendant as D.W.2 and they have to stand or fall on the strength of their own evidence. As the plaintiffs failed to discharge the burden of proof, which is on them, they have to fail and these two points are answered accordingly against respondents 1 to 4 and 36 to 40. Point No.5: 66. In view of my findings on other points, the additional evidence has to be received, the claim petitioner has to be impleaded in the main appeal and the main appeal and the civil miscellaneous second appeal have to succeed. Point No.5: 66. In view of my findings on other points, the additional evidence has to be received, the claim petitioner has to be impleaded in the main appeal and the main appeal and the civil miscellaneous second appeal have to succeed. The success of the civil miscellaneous second appeal is only consequential to the judgment and decree in question being set aside in the main appeal, but not on any positive conclusions about the various questions raised in the said second appeal, the determination of which becomes redundant and superfluous in the absence of existence of any decree capable of being executed in respect of the property claimed by the appellant in the second appeal. 67. In view of the peculiar facts and circumstances, the parties shall bear their own costs. 68. In the result, — (1) A.S.M.P. No.1931 of 2005 in A.S. No.801 of 1995 is allowed and the documents are received as additional evidence and marked as Exs.B.11 and B.12; (2) A.S.M.P. No.1354 of 2005 is also allowed and the petitioner therein is impleaded as respondent No.41 in A.S. No.801 of 1995; (3) A.S. No.801 of 1995 is allowed without costs and the judgment and decree in O.S. No.91 of 1983 on the file of the Subordinate Judge’s Court, Chirala, dated 08-03-1995 are set aside and the said suit is dismissed without costs; and (4) C.M.S.A. No.90 of 2005 is also allowed and the order and decreetal order in E.A. No.259 of 1996 in E.P. No.75 of 1995 in O.S. No.91 of 1983, dated 27-03-2003 on the file of the Senior Civil Judge’s Court, Chirala are set aside and the said E.A. No.259 of 1996 is allowed without costs. APPENDIX OF EVIDENCE Witnesses examined by the Senior Civil Judge, Chirala as per the directions of this Court in A.S. No.801 of 1995, dated 02-11-2005: C.W.1: K. Ravikumar Reddy (Advocate Commissioner) C.W.2: I. Bala Anjaneyulu (Mandal Deputy Surveyor) Documents received as additional evidence and marked as Exs.B.11 and B.12 as per the orders in A.S.M.P. No.1931 of 2005 in A.S. No.801 of 1995: Ex.B.11: 14-12-1935/Photostat copy of registration extract of sale deed executed by Mallarapu Kotayya and Lakshmayya in favour of B. Venkayya. Ex.B.12: 28-01-2003/Photostat copy of public notice in Eenadu, Prakasam District edition issued on the instructions of Mallarapu China Venkayya, son of Kotayya.