Suit Property May Be Identified Based On Prevailing Boundaries, Survey Of All Adjacent Lands Not Required: Andhra Pradesh High Court

In an appeal suit filed by a defendant challenging Trial Court's decree and judgment in a suit for declaration, the Andhra Pradesh High Court has observed that suit property may be identified with reference to prevailing boundaries and it is not necessary to survey all adjacent lands to decide a claim of encroachment.

The court relied on the Apex Court's decision in Subhaga v. Shobha, where also boundaries were held to prevail in a suit for possession. 

Perusing the material on record, Justice V Gopala Krishna Rao held that the respondent/plaintiff was able to prove title in the property in question and the appellants/defendants had in fact encroached upon her property. There were no defects in the report of the Advocate Commissioner, which had been unjustifiably challenged by the appellants after 20 years of decree.

It was noted that the method undertaken by Advocate Commissioner of visiting the plaint schedule property and identifying the properties of plaintiff and defendants with the help of boundaries on land as tallied from the documents of both parties and neighboring land owners was transparent and without any discrepancies. Further, the Advocate Commissioner had taken assistance of Municipal Town Surveyor and his Town Survey Plans.

On the question for enquiry of mesne profits, Justice Rao referred to a decision by Division Bench of the court in Kalepu Subbarajamma v. Tiguti Venkata Pediraju (1983) in which it was held that Appellate Court has undoubted jurisdiction to grant mesne profits or direct an enquiry into the same as it is a part of general relief of possession even without there being a prayer in plaint.

"We therefore held that so far as future mesne profits are concerned even without there being a prayer in the plaint, the Court can award the same or direct an enquiry into the same at the time of passing the decree for possession. Similarly, the Appellate Court can grant future mesne profits even if there is no appeal by the plaintiff against that part of the decree which is silent about future mesne profits", the Bench in Kalepu Subbarajamma (Supra) had said.

Accordingly, the appeal suit was dismissed, with a direction to the Trial Court to ascertain the mesne profits in a separate application to be filed by the plaintiff by giving an opportunity to both parties.

Counsels for Appellant: Advocates Venkat Challa and T Ravi Kanth

Counsel for Respondent: Advocate G Rama Gopal

Case Title: D. SUMAN v. DVSB SUBBALAKSHMI @ PADMINI

Case No.: Appeal Suit No. 1140 of 2003

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