M. Muniyappa and Others vs Ravindra and Others

Anand Byrareddy, J.—These appeals are preferred by defendant No. 5 and the plaintiff, respectively, challenging the same judgment - though on different aspects. The appeals are considered and disposed of by this common judgment, having regard to the facts and circumstances.

The parties are referred to by their rank before the trial court, for the sake of convenience.

It was the case of the plaintiff that he was the grandson of one Ramaiah Reddy. The first defendant was said to be the father of the plaintiff Defendant Nos. 2 to 4 were the plaintiffs paternal uncles. It was claimed that the plaintiff and his father were members of a Hindu joint family and that items 1 and 2 described in the schedule to the suit were agricultural lands bearing survey No. 43/1 of Bommanahalli, Venkoba Rao Khan, Begur Hobli, Bangalore South Taluk. It was claimed that an extent of 5 acres and 23 guntas of land of the said Sy. No. were ancestral properties of the plaintiff This land had originally fallen to the share of the plaintiffs grandfather, at a partition as on 18.10.1957, as between Ramaiah Reddy, the plaintiffs grandfather, and his brothers -Venkatappa Reddy and Annaiah Reddy.

It transpires that there was a further partition as between the grandfather of the plaintiff and defendants 1 to 4 as on 12.1.1981. At the said partition, it was claimed that the properties described in the schedule to the suit, had fallen to the share of the plaintiff and defendant No. 1, jointly and was hence claiming a half share thereto.

It was the plaintiffs further case that defendants 1 to 4 seemed to have entered into an agreement to sell item No. 1 of the suit schedule property, along with another extent of one acre of land that had fallen to the share of defendants 2 to 4, to defendants No. 6 to 9. Those defendants in turn were believed to have entered into further agreements to sell portions of the said lands, formed into house sites to defendants 10 to 40. According to the plaintiff, the formation of the house sites was not by virtue of conversion of the land user or on sanction of any layout plan. The plaintiff was opposed to the proposed sale of the land and also was not agreeable to the dubious transaction.

It was claimed that the plaintiff learnt about the transaction three months prior to the filing of the suit. On questioning the first defendant, it was said that he had been deceived by defendants 6 to 9 into entering into such an agreement, according to the plaintiff.

It was stated that at the partition between defendant Nos. 1 to 4, each of them representing their respective branch had divided the land bearing survey No. 43/1 into four shares, each branch being allotted one acre of land. The share allotted to the branch comprising the plaintiff and defendants 1 to 4 together was shown in a sketch appended to the plaint as ABCD. It was further stated that the share allotted to the plaintiff and the first defendant was shown in the said sketch as WXYZ. In the area shown as WXYZ, it was claimed that the fifth defendant had encroached a portion of the same by moving a fence forming the boundary of his property, which was on the eastern side of the plaintiffs property. Hence the fifth defendant is said to be made a party to the suit.

It is in the above background that the suit was filed seeking the following reliefs :

"1. For partition of suit schedule property by allotting half share to the plaintiff in the schedule property and divide the same by metes and bounds: and to separately put the plaintiff in possession of his half share in the suit schedule property. If for any reason the court finds that it is not feasible to partition the suit schedule property, to direct the sale of the schedule property and divide the sale proceeds in moiety amongst the first defendant and the plaintiff.

To direct the fifth defendant to remove the encroachment made by him on the suit schedule property and deliver possession of the encroached area to the plaintiff to enable partition amongst the plaintiff and the first defendant as per Prayer No. 1. Encroached portion is shown in suit sketch as WXYZ.

To declare that the agreements that might have been executed by defendants 1 to 4 with defendants 6 to 40 in respect of suit schedule property are not binding on the plaintiff.

Any other reliefs this Hon''ble Court deems fit to grant, in the interest of justice."

Defendant Nos. 1 and 2 had remained ex parte. However, they are said to have died during the pendency of the suit. The legal representatives of Defendant No. 2, namely, Defendants Nos. 2 (a) to (c) are said to have entered appearance and are said to have filed their written statement admitting the relationship between the parties. They had admitted the partition between Ramaiah Reddy and his brothers, of the year 1957, whereby 8 acres and 23 guntas of land had fallen to Ramaiah Reddy''s share. They had also admitted the partition of the year 1981, as between Ramaiah Reddy and defendants No. 1 to 4. It was also admitted that item No. 1 of the suit schedule properties had fallen to the share of defendant No. 1, the father of the plaintiff.

It was denied that defendant No. 2 had colluded with defendant No. 1 in executing any agreement of sale in favour of defendants 6 to 9. It was asserted that defendants 1, 3 and 4 may have executed such a deed. In any event the plaintiff could not have any claim over the remaining land bearing survey No. 43/1, except what was allotted to his father. Therefore, the said defendants were neither concerned with Item No. 1 nor the allegedly encroached portion of Item No. 1, described as Item No. 2 in the suit schedule, by defendant No. 5. It was contended that the suit was not maintainable against the said defendants.

Defendant No. 5 had contested the suit and had filed his written statement to contend that his father Muniswamappa had purchased the land bearing survey No. 42 along with yet another item of property bearing survey No. 41/2 of Venkoji Rao Khane, Begur Hobli, Bangalore South Taluk, under a sale deed dated 18.2.1950. The property bearing survey No. 42 is said to have been bounded as follows :

"East by - Property of Julappa and Lingappa (Presently that of Defendant No. 5)

West by - Byrappa (Now by his legal heirs) and a Rajakalve

North by-Road

South by- Chikka Yelliga and Peddabba @ Muniswamy."

And that the father of the said defendant had been in continuous possession of the property. It was claimed that he had in fact occupied a larger area than shown in the sale deed, from inception till his death in the year 1974. It was claimed that the area under his father''s occupation was fenced with barbed wire and jungle wood trees were said to have been grown along the boundary - on the eastern side of the Rajakaluve. The plaintiff, or his ancestors before him, had never questioned or claimed any portion of the land so occupied. He claimed to have perfected his title to the land by adverse possession.

Thereafter, the fifth defendant claimed to have removed the barded wire fence and is said to have erected a stone slab wall, forming the boundary. It was also claimed that the entire extent of the property was built up consisting of residential and commercial buildings.

It was claimed that the plaintiff had suppressed the fact of the existence of a Rajakaluve between the property of the defendant No. 5 and the plaintiff, which render it impossible for the defendant to have encroached on the property of the plaintiff It was alleged that the plaintiff was seeking to make a false claim over the defendant''s property by indicating incorrect boundaries and measurements.

The said defendant accordingly sought dismissal of the suit.

Defendant Nos. 25, 34 and 35 had also filed their written statement to claim that defendant No. 1 along with his brothers had executed an agreement of sale and power of attorney by virtue of which they had been put in possession of a portion of the suit property, after having received the entire consideration. And that they had constructed their houses and were residing therein. It was stated that there was however, no formal sale deed in their favour -as there was a ban imposed by the State government at the relevant point of time on the execution of sale deeds in respect of revenue sites. And sought to protect their possession.

On the basis of the above pleadings the court below had framed the following issues:

"1. Whether the plaintiff proves that the suit schedule property is the joint family property of the plaintiff and the defendants?

Whether the plaintiff proves that the defendant No. 5 encroached upon the suit schedule property as contended in para 9 of the plaint?

Whether the plaintiff further proves that the agreement of sale executed by defendant Nos. 1 to 4 in favour of defendant No. 6 to 40 is not binding on him?

Whether the defendant No. 5 proves that he has perfected his title over the suit schedule property by adverse possession as contended in para No. 2 of the written statement?

Whether the defendant Nos. 25, 34 and 35 prove that they are in possession of the respective sites purchased by them from defendant Nos. 1 to 4?

Whether defendant Nos. 24, 34 and 35 prove that the plaintiff was very much aware of the sites formed by defendant Nos. 1 to 4 in the suit schedule property and ultimately alienation of the said sites?

Whether defendants prove that the suit is barred by limitation?

Whether defendants prove that the suit is not maintainable without seeking relief of declaration and possession?

Whether the Court fee paid is proper and sufficient?

Whether the plaintiff is entitled to partition and separate possession of half share in the suit schedule property?

What order or decree?"

The court below had answered Issue Nos. 2, 5, and 6 in the affirmative, Issue Nos. 1, 3, 4, 7, 8 in the negative, Issue No. 9 partly in the affirmative and Issue No. 10 partly in the affirmative in respect of Item No. 2 of the suit schedule property.

The trial court has decreed the suit in part holding that the plaintiff is entitled to a half share in item No. 2 of the suit schedule properties and that the defendant No. 5 who was found to have encroached on the property as alleged was to hand over possession of the encroached portion.

It is against the said judgment that the plaintiff as well as defendant No. 5, have preferred these appeals.

The learned Senior Advocate, Shri DLN Rao, appearing for the counsel for defendant No. 5 would contend as follows:

"That the trial court after having answered Issues Nos. 1, 3, 5 and 6 against the plaintiff, in holding that Item Nos. 1, 3 to 5 of the suit schedule properties were not available for partition - was not at all in a position to reconcile the finding arrived at - to the effect that the plaintiff was entitled to a share in Item No. 2 of the suit schedule property, when admittedly - Item No. 2 of the suit schedule property was a part of Item No. 1.

It is pointed out that it is also not in dispute that the sale deed in favour of the father of defendant No. 5 indicated the western boundary of the property purchased was shown as " Rajakaluve". This was also consistent with the eastern boundary of the suit property - which was shown as "Rajakaluve"- beyond which was the stone compound wall and the property of defendant No. 5. This fact has been admitted by the plaintiff in his evidence. Hence it was well neigh impossible for there being any encroachment of the suit property.

It is also categorically admitted by the plaintiff that at no point of time were the father of defendant No. 5, nor he, had been questioned as regards their possession of the property beyond the stone compound wall, which had replaced a barbed wire fence. And which was clearly beyond the Rajakaluve, separating the properties of the plaintiff and defendant No. 5.

It is further contended that the trial court having held that the defendant No. 5 had failed to establish his claim to have perfected his title to the disputed property by way of adverse possession since he did not accept the owner ship of the plaintiff, may not be the correct perspective in order to appreciate the seemingly inconsistent plea of defendant No. 5. It is urged that it is no doubt true that in order to establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding 12 years. It is also well settled that long and continuous possession by itself would not constitute adverse possession. It was either permissive possession or possession without animus possidendi. The plea based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (See : P. Periasami (Dead) by Lrs. Vs. P. Periathambi and Others, (1996) 1 CTC 513 : (1995) 6 SCALE 50 : (1995) 6 SCC 523 : (1995) 4 SCR 230 Supp ; Md. Mohammad Ali (Dead) by Lrs. Vs. Sri Jagadish Kalita and Others, (2003) 8 JT 26 : (2004) 137 PLR 255 : (2003) 8 SCALE 356 : (2004) 1 SCC 271 : (2003) 4 SCR 325 Supp and P.T. Munichikkanna Reddy and Others Vs. Revamma and Others, AIR 2007 SC 1753 : (2007) 6 JT 86 : (2007) 6 SCALE 95 : (2007) 6 SCC 59 : (2007) 5 SCR 491 : (2007) AIRSCW 2897 : (2007) 3 Supreme 751

However, it is pointed out that in the present case on hand the father of defendant No. 5 had been put in possession of a larger extent of land than was described under the sale deed, dated 18.2.1950, and he had continued in possession uninterruptedly - with no objection from the plaintiffs ancestors, as apparently, the excess land so occupied did not belong to them. The father of Defendant No. 5 and after him, the defendant himself, having continued in occupation of the same, hostile to the true owner and such hostile possession having continued for more than 12 years, it could certainly be claimed that title was perfected by adverse possession. Therefore, the two pleas put forth by defendant No. 5 would not be inconsistent pleas but alternative pleas available on the same facts. Shri Rao places reliance for the above proposition, on the case of L.N. Aswathama and Another Vs. P. Prakash, (2009) 9 JT 527 : (2009) 13 SCC 229 : (2009) 10 SCR 615 .

It is hence sought that the judgment and decree, in so far as it directs the fifth defendant to hand over the property described as Item No. 2 of the suit schedule property be set aside and dismiss the suit as against defendant No. 5."

Shri P.D. Surana, learned counsel appearing for the plaintiff who is the appellant in the appeal in RFA 56/2010, while justifying the judgment in so far as the relief granted against defendant No. 5, seeks to question the dismissal of the suit for partition, except in so far as Item No. 2 of the suit schedule property is concerned. It is contended by Shri Surana, that the findings of the trial court to the effect that Item No. 1 of the suit schedule property is no longer the joint family property of the plaintiff and defendants No. 1 to 4 and that an agreement of sale have been effected in respect of the suit property and the defendants Nos. 6 to 40 having been inducted into the property in part performance of such transaction, the said property no longer being available for partition is sought to be demonstrated as being patently erroneous.

It is pointed out that the plaintiff was not a party to the alleged transaction of an agreement of sale under which the several defendants 6 to 40 are said to have been inducted. The same cannot bind the plaintiff The said defendants had not tendered any evidence nor had they produced documents to show that there has been any such transfer. The theory of part performance of contract, which has been accepted by the trial court as an established circumstance is without any basis, as there is no evidence on record in respect of the same. Any amount of oral evidence to establish such part performance of contract cannot take the place of material documents.

Even assuming that there was any such transaction, it would at best affect the interest of defendant No. 1 and not that of the plaintiff, when the relationship of the parties is not disputed. In that, after the suit properties were divided between defendants 1 to 4, the plaintiff and defendant No. 1 had remained joint in respect of the properties that fell to the share of defendant No. 1. The share of the property of the plaintiff could not be alienated without the consent or knowledge of the plaintiff Even if such alienation could be claimed as being for a legal necessity of the family, when there was none, the burden of establishing that circumstance would be on the purchaser. Hence, there was no substance in the finding of the trial court that the suit properties were not available for partition as between the deceased defendant No. 1 and the plaintiff.

It is contended that the finding of the trial court that Item Nos. 3 and 4 of the suit schedule properties had fallen to the share of Shamanna Reddy, was contrary to the pleadings and the evidence on record. It is sought to be pointed out that such a finding has been arrived on an apparent misreading of Exhibit P-2. The next obvious error committed by the trial court, according to Shri Surana, is that the court below had held Item No. 5 of the suit schedule properties was a portion of Khaneshmari No. 67 and that it had partly fallen to the share of Defendant No. 4 under Exhibit No. P-2 and hence it was not available for partition. On the other hand, it is pointed out that the properties that had fallen to the branch of Defendant No. 1 and hence the plaintiff had an equal share in the properties with him.

It is also pointed out that the court below had opined that since the plaintiff had failed to produce the Record of Rights pertaining to item Nos. 3 to 5 of the suit schedule properties, it would not be possible to hold that the said properties were available for partition. Such an observation and finding was in the face of the fact that there was no contest from any of the defendants in this regard. On the other hand, the legal representatives of the deceased defendant No. 2 had duly endorsed that the suit properties did belong to the erstwhile joint family properties, which had however, been the subject matter of partition as between defendants 1 to 4.

It is hence contended that the trial court was not justified in dismissing the suit for partition, while restricting the relief only pertaining to Item No. 2 of the suit schedule property, and seeks that the appeal by the plaintiff be allowed and the suit for partition decreed as prayed for.

In the light of the above contentions, the points that arise for consideration would be the following:

"a) Whether the plaintiff had established that the suit schedule properties were joint family properties and that the same were available for partition.

b) Whether the suit properties were unavailable for partition, as the same were said to be subject matter of agreements of sale, whereby third parties had been put in possession.

c) Whether the plaintiff had proved that defendant No. 5 had encroached suit schedule property, item No. 2.

d) Whether the defendant No. 5 was in a position to establish that he had perfected his title, to the said item No. 2 of the suit properties, by adverse possession."

Point Nos. (a) and (b) : These points are answered together as the trial court has proceeded to hold that the suit schedule properties were not available for partition on account of the fact that the same had been alienated in favour of third parties and secondly that in view of the partition between defendant Nos. 1 to 4 and their father, in the year 1981, the plaintiff was not in a position to seek partition of the same properties. It is evident that the trial court has proceeded on a wrong premise that the plaintiff was seeking partition of the suit properties as against defendant Nos. 1 to 4. On the other hand, the plaint averments proceed on the footing that there was indeed a partition in the year 1981, of properties that had fallen to the share of Ramaiah Reddy, as between Ramaiah Reddy and Defendant Nos. 1 to 4. And that defendant No. 1 had purportedly sought to alienate the suit properties along with defendants 2 to 4, in respect of properties that had fallen to their share, without the plaintiffs knowledge and consent. He was hence questioning the possible alienation in respect of properties that had fallen to the share of his father, defendant No. 1. Though there are incidental pleadings to claim that there have been transactions pertaining to the suit properties in favour of third parties, including defendants 6 to 40, there is however, no evidence on record to establish any such conveyance. On the other hand, admittedly there was only an agreement or agreements of sale in favour of such third parties - and even those agreements were not placed on record. Hence, the mere claim of any such alienation and those agreement holders claiming to be in occupation of the suit properties, in part performance of those agreements, could not have been affirmed by the trial court. The findings of the trial court, on both the above counts, hence cannot be sustained.

Points (c) and (d) : The cause of action that is sought to made out against defendant No. 5, by the plaintiff is to be found in the allegations made at paragraph No. 9 of the plaint. The same is reproduced hereunder for ready reference :

"9. It is submitted that while partition took place amongst defendants 1 to 4, each of them representing respective branch of the family as referred above survey number 43/1 of Bommanahalli village was divided by allotting one acre of land to each branch on one side and another portion on the other side as shown in the sketch. The land allotted to the plaintiff and the defendants together is shown in the sketch ABCD which is one acre in extent. And the other portion allotted to the share of the first defendant and the plaintiff is shown in the sketch as WXYZ. In the area WXYZ, a small portion of land is encroached by the fifth defendant recently. This has been done by the fifth defendant by extending his fencing as he happens to be the owner of the property which is situated to the east of the property belonging to the plaintiff and the first defendant in the aforesaid survey number and shown WXYZ. Hence, the fifth defendant is also joined in the suit."

It is evident that the above pleadings are not categorical. There is no indication of the date or even the year in which defendant No. 5 is said to have encroached on the suit property, as claimed. The evidence tendered by the plaintiff in support of the above pleadings, is also not positive. On the other hand, the plaintiff had categorically admitted that defendant No. 5 and his ancestors had been in continuous possession of property belonging to them beyond the Rajakaluve and a stone compound wall on the eastern side of Item No. 1 of the suit properties. It was also admitted by him that neither he nor his ancestors had sought to question such occupation prior to the suit.

The glaring circumstance that the western boundary of the land said to have been purchased by the father of defendant No. 5 being defined as Rajakaluve and the eastern boundary of the suit item No. 1 property being shown as Rajakaluve, would indicate that unless the defendant No. 5, or his father before him, had not only occupied the Rajakaluve but also had shifted the stone slab wall that stood beyond the Rajakaluve, forming the boundary of the property of defendant No. 5, it was not at all possible to visualize any encroachment.

It is also necessary to notice that the suit properties are no longer in their original state. Hence, if the court is required to proceed on the basis of material documents and the pleadings and evidence on record, it is not possible to sustain the findings of the trial court that defendant No. 5 had encroached on the suit schedule item No. 2 property. It is in this circumstance that an attempt is made on behalf of the plaintiff to project a case that was never pleaded nor supported by evidence. It may even be said that it is apparently an attempt to make out a case in retrospect, provided an elaborate exercise of survey of the land as it exists and to recreate the position as it originally stood, according to the plaintiff, which would establish the case of the plaintiff This is evident from a plain reading of the affidavit now filed in support of an application seeking the appointment of a court commissioner to establish the alleged encroachment by defendant No. 5.

The application and the affidavit of the plaintiff referred to is reproduced hereunder for ready reference:

"APPLICATION UNDER ORDER XXVI RULE 9 OF CODE OF CIVIL PROCEDURE

That for the reason sworn in the accompanying affidavit that, this Hon''ble court may be pleased to appoint court commissioner to survey the Sy. No. 43/1 of Venkoji Rao Khane, Begur Hobli, Bangalore South Taluk, Bangalore and to report the encroachment made by the 5th respondent on the said property namely the encroachment made on item No. 2 of Suit schedule property, in the interest of justice and equity.

AFFIDAVIT

I, Ravindra S/o. late Krishnareddy, aged about 46 years, residing at No. 67/2, Koramangala Village, Bangalore - 95 do hereby solemnly affirm and state on oath as follows.

I state that I am the appellant in the above appeal and I aware of the facts and circumstance of the case, hence swearing to this affidavit.

I submit that item No. 2 of the suit schedule is 10 guntas of land forming part of Sy. No. 43/1 of Venkoji Rao Khane. The defendant No. 5 has encroached upon item No. 2 of the schedule property. I have produced the survey sketch of 5 acre 23 guntas of land bearing sy.no.43/1 of Venkoji Rao Khane. Under a partition deed dated 12/1/1981 the said land was partitioned. One of the item is fell to my father is share of my father is shown as item No. 1 in the suit schedule. The said item No. 1 measures 1 acre. The said 1 acre is marked as ABCD in exhibit P-9, the second item of the property which fell to my father share under a partition is shown as item No. 2 in the plaint schedule. This item No. 2 of suit schedule is marked as WXYZ in exhibit-9 the portion of the item No. 2 is encroached by the 5th respondent. The area of encroachment is also shown in measurement. The encroached area measures 146 feet north to south on the eastern side (shown as WZ in Exhibit P-9) north to south 132 feet on the western side, which is shown as X1Y1 in exhibit P-9. East to West 65 feet on the southern side same is shown as WX. Thus measurement of the encroachment portion is shown in exhibit P-9.

I am advised to submit that it is contended by the appellant in RFA No. 799/2009/5th respondent in connected appeal that the encroached portion is shown as WX1Y1Z is not part and parcel of Sy. No. 43/1 of Venkoji Rao Khane, similarly the plea of adverse possession raised by the said appellant is also canvassed in the above appeal. It is contended that the portion shown as WX1Y1Z in exhibit P-9 is a part and parcel of property purchased by the 5* defendant in the trial court under exhibit D-2. Under exhibit D-2 the father of the 5th defendant in trial court has purchased the land in Sy. No. 42/1 of Venkoji Rao Khane measuring 1 acre 2 guntas this land is adjoining to item No. 2 of the suit schedule property. That this said contention is raised while arguing appeal.

It is submitted that the 5* defendant has examined in trial court, while cross examination is admitted that neither he nor his father claimed rights in land measuring 5 acres 23 guntas in Sy. No. 43/1, he also admits that he has encroached portion of item No. 2 which is marked as W X1 Y1 Z in exhibit P-9.

I submit that the Legal representative of second respondent children filed O.S. No. 8437/2007 in the said suit the ADLR CTS No. 3 Bangalore was appointed as commissioner, he has visited the spot and identified the encroachment made by the 5th respondent in Sy. No. 43/1 of Venkoji Rao Khane. The survey sketch is herewith produced. Item No. 2 of suit schedule property is marked as schedule C in said sketch, the portion which encroached by the 5th defendant in appellant in RFA No. 799/2009 is marked in green color, the encroachment made by the 5th defendant in Sy. No. 43/1 which is shown in the green color in all measures 21 guntas. The encroachment in our suit schedule which is shown in schedule D in sketch is 7 guntas. The contention advanced by the appellant in RFA No. 799/2009 can not be accepted in law. To resolve the controversy raised by appellant in RFA No. 799/2009 a commissioner is appointed preferably from the office of the survey department to survey the land in Sy. No. 43/1 and survey in Sy. No. 42/1 of Venkoji Rao Khane which will indicate that the stone slab compound wall erected along X1Y1 is located in Sy. No. 43/1 and the 5* defendant is made encroachment to the extent of 7 guntas of land in item No. 2 of suit schedule property.

Wherefore it is humbly pray that this Hon''ble court may be pleased to allow the accompanying application in the interest of justice and equity."

In the opinion of this court, the exercise prayed for by the plaintiff cannot be carried out. Such a procedure adopted would not be in consonance with the pleadings or the evidence on record. It would result in this court considering an entirely new case as sought to be made out by the plaintiff by recourse to an involved deduction. The further aspect as to whether defendant No. 5 had established that he had perfected title by adverse possession and whether a plea of adverse possession was inconsistent with the stand of the said defendant, when he did not admit the ownership of the plaintiff, is concerned. As rightly pointed out by Shri DLN Rao, though it is true that unless a defendant admits the ownership of land by the plaintiff, he would not be in a position to set up a plea of adverse possession, in a circumstance, however, where the defendant is claiming to have perfected his title to land, not under the plaintiff but under the true owner, the plea is not an inconsistent plea, but a plea canvassed in the alternative and would not be fatal to the suit.

It may therefore be said that the plaintiff had miserably failed to establish that defendant No. 5 had encroached on any portion of the suit property. The finding of the trial court to the contrary and consequential directions issued are hereby set aside and the suit against defendant No. 5 stands dismissed.

The plaintiff is held entitled to his share of the property allotted to defendant No. 1 at the partition as between defendants Nos. 1 to 4 and their father, Ramaiah Reddy, dated 12.01.1981. In the light of the death of Defendant No. 1 during the pendency of the suit, now survived by the plaintiff, his mother and sister. His share shall be determined with due regard to the right of the said legal representatives. A preliminary decree shall be drawn up accordingly.

In the result, the appeal in RFA 56/2010 is allowed and the judgment and decree in respect of Item Nos. 1, 3, 4 and 5 of the suit schedule properties is set aside.

The appeal in RFA 799/2009 is allowed the judgment and decree in favour of the plaintiff, in respect of item No. 2 of the suit property and the consequential directions issued are set aside.