IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD
A.S.M.P. No. OF 2010
IN
A.S. No. 756 OF 2010

BETWEEN:

Divvela Gangamma .. PETITIONER/

PLAINTIFF
AND

The College of Engineering, Kakinada

a College affiliated to Jawaharlal Nehru
Technological University, Hyderabad rep
by its Principal .. RESPONDNET/
DEFENDANT

AFFIDAVIT FILED BY THE PETITIONER

I, Divvela Gangamma W/o Venkatewarulu, aged 64 Years, R/o 2-1-33,

Pithapuram Road, Kakinada, Eat Godavari District, do hereby solemnly and
sincerely affirm on oath and state as follows:

I am the petitioner herein and Plaintiff in the suit as such well acquainted
with the facts of the case.

I submit that the appeal is being filed aggrieved by the judgement and
decree dated 17-3-2010 in O.S.No. 8 of 2006 on the file of the Court of the IV
Additional District Judge, East Godavari, Kakinada.

I submit that that I filed suit O.S.No. 8 of 2006 on the file of the Court of
the IV Additional District Judge, East Godavari, Kakinada to declare that the right
of the defendant over the plaint schedule property is extinguished and
consequentially I became owner of the Plaint schedule property and for grant of
temporary injunction etc. In the plaint it was contended that my father is the owner
of the plaint schedule property shown as ABCDEF in the Plaint plan and
constructed a house 90 years back and in enjoyment of the property without any
interruption for his life time; that after the death of my father I have been in
possession and enjoyment of the property for the last 40 Years; that the Municipal
authorities allotted door number and collected taxes and later I was informed that
the tax on thatched house was abolished; that when the defendant tried to disturb
my possession, I filed suit O.S.No. 126 of 1986 on the file of Principal
Subordinate Judge, Kakinada, for injunction and I specifically denied the title of
the Defendant and the Defendant also admitted my possession; that the suit was
dismissed and confirmed in appeal and Second Appeal; that in the SLP, the
Hon’ble Supreme Court removed some of the observations made by the Hon’ble
High Court while dismissing the Second Appeal; that when the Municipal
Authorities tried to interfere with easementary right, I filed suit O.S.No. 166 of
1991 on the file of the I Addl. District Munsiff, wherein the defendant also
 2

admitted my possession. In the appeal in A.S.No. 93 of 1997, the matter was

referred to Lok Adalat and accordingly an award was passed; that since 1986 the
defendant has not taken any action for getting its title declared or for recovery of
possession and therefore the defendant’s right to recovery of possession has
extinguished; that when the staff of the defendant was objected to construct a wall,
I got issued a notice dated 27.1.2006 and hence the suit has been filed for the
reliefs stated supra.

I submit that the defendant filed written statement and admitted the filing of the
suit O.S.No. 126 of 1986 but stated that the suit was filed for injunction
simplicitor and also contended that my possession will not termed as
uninterrupted; that my claim for declaration of title is barred by time; that the
decree in O.S.No. 126 of 1986 operates as Res-judicata; that the suit schedule
property is part and parcel of the property conveyed to the college by R&B
Department; that a small thatched house is in existence and prayed the Court to
dismiss the suit.

I submit that in the suit on my behalf I was examined as P.W.1 and also examined
P.W.2 and got marked Ex A-1 to A-13. On behalf of the Defendant, D.W.1 was
examined and got marked Ex B-1 to B5. Ex X-1 was also marked. I submit that
the Lower Court though framed issues, without considering the oral and
documentary evidence on an erroneous view of Law and facts dismissed the suit
by its judgement dated 17-3-2010. Aggrieved by the said judgement and Decree, I
am preferring the appeal, the grounds of which may kindly be read as part and
parcel of this affidavit. I am advised of fair chances of success. Taking advantage
of dismissal of the suit, the respondent-authorities are trying to interfere with my
possession. Unless, this Hon’ble Court grants injunction, I will be put to serious
and irreparable loss and injury.

I submit that when I filed suit I paid the Court fee for the relief claimed by me.
Subsequently, pending the suit the thatched house in the plaint schedule property
had burnt and I lost valuable including cash. I could raise a temporary house in the
premises for my inhabitation. The Court fee payable is Rs.32,626/-. Since I lost
the valuables in the fire accident, I am eking out my livelihood by doing coolie
work. Except the schedule mentioned properties, I don’t possess any other
properties as to pay the Court fee and battas. Unless this Hon’ble Court permits
me to prosecute the appeal as indigent persons, I will be put to serious and
irreparable loss and injury.

Hence, it is humbly prayed that this Hon’ble Court may be pleased to declare me
as pauper and permit me to prosecute the appeal as indigent person and pass such
other order or orders as are deemed fit and proper

It is further prayed that this Hon’ble Court may be pleased to grant injunction
restraining the defendant, its men or any other person claiming through the
defendant from interfering with the suit schedule property in O.S.No. 8 of 2006 on
the file of the Court of the IV Additional District Court, East Godavari, Kakinada
pending disposal of the above Appeal and pass such other order or orders as are
deemed fit and proper.
 3

Solemnly and sincerely affirmed DEPONENT

at Kakinada on this the
day of June, 2010 and signed
his name in my presence. BEFORE ME

ADVOCATE : KAKINDADA.
 MEMORANDUM OF REGULAR APPEAL

(UNDER SECTION 96 OF C.P.C.)

IN THE COURT OF THE IV ADDITIONAL DISTRICT JUDGE

KAKINADA

O.S. No. 8 OF 2006

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD

A.S. No. OF 2010

BETWEEN :
Divvela Gangamma w/o Venkateswarulu,
aged 60 years, Land lady,2-1-33, .. Appellant/
Pithapuram Road, Kakinada Corporation, Plaintiff
Kakinada. East Godavari District. Andhra
Pradesh

And

The College of Engineering, Kakinada a

college affiliated to Jawaharalal Nehru
Technological University, Hyderabad
represented by the Principal, College of
Engineering, Kakinada .. Respondent/
Defendant

The address for service of all notices and to processes on the above named
appellant is that of his Counsel M/s. V.L.N. GOPALA KRISHNA MURTHY
and SUBBA REDDY S. Advocates, House No.3-5-118/9/1, Plot No.54, Street
No.2, Krishna Nagar, Hyderguda, Near Attapur, Rajendra Nagar Mandal,
Hyderabad-500 048.

The above named appellant begs to present this Memorandum of Regular

Appeal against the Judgment and Decree in O.S. No.8 of 2006, dated 17 th
March 2010 on the file of the Court of the IV Additional District Judge
Kakinada for the following among other:

:: G R O U N D S ::
 2

1. The judgement and decree of the Lower Court are contrary to law, weight of
evidence and probabilities of the case.

2. The Lower Court erred in holding that the prayer is a negative declaration. It is
submitted that under the law of prescription, when the title of one person is
extinguished under Sec 27 of the Limitation Act, 1963 it gets transferred to the
person who kept the owner out of possession. Sec 27 of the Limitation Act
explains the true, basis and effect of the rightful owner who failed to take
action within the period of Limitation and in case of his failure to take action,
his rights will be extinguished and accrues to the person in possession of the
property and thereby the Plaintiff is entitled for a declaration and injunction.

3. The Lower Court should have seen that in a suit for declaration of title, the
plaintiff can establish his title by any mode of acquisition of title viz., transfer
inter-vivos, testamentary or interstate succession of adverse possession.

4. The Lower Court erred in thinking that the prayer should be framed as one for
declaration of title by employing those words. There is no rule of pleading that
a particular language should be employed to seek a relief. The whole
judgement of Lower Court is vitiated by its failure to appreciate the concept of
acquisition of title by adverse possession by one person and extinguishment of
the title of the other.

5. The Lower Court erred in thinking that the plaintiff must admit the title of
defendant before claiming adverse possession. It is submitted that when the
Plaintiff establishes animus on his own part, where by asserts title in himself to
the exclusion of the all other including the defendant, the requirement of
section 27of Indian Limitation Act and adverse possession is satisfied.

6. The Lower erred in thinking that even otherwise, the plaintiff has not admitted
the initial title of defendant ignoring the very prayer wherein the plaintiff
sought for a declaration that the defendant’s title got extinguished.

pl add other grounds. lack of time, I could not add grounds basing on
deposition. .
 3

Value of the Appeal is same

as in the Lower Court, i.e.,

Court fee paid is .. Rs.

HYDERABAD,
DATE: COUNSEL FOR THE APPELLANT.
 MEMORANDUM OF CIVIL MISC. PETITION

(UNDER SECTION 151 OF C.P.C.)

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD

A.S.M.P. No. OF 2010

IN

A.S. No. OF 2010

BETWEEN:

For the reasons stated in the accompanying affidavit the petitioner herein

prays that this Hon’ble Court may be pleased to

HYDERABAD,
DATE: COUNSEL FOR THE PETITIONER.
 MEMORANDUM OF REGULAR APPEAL

(UNDER SECTION 96 OF C.P.C.)

IN THE COURT OF THE

O.S. No. OF 19

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD

A.S. No. OF 2010

BETWEEN :
Divvela Gangamma w/o Venkateswarulu,
aged 60 years, Land lady,2-1-33, .. Appellant/
Pithapuram Road, Kakinada Corporation, Plaintiff
Kakinada. East Godavari District. Andhra
Pradesh

And

The College of Engineering, Kakinada a

college affiliated to Jawaharalal Nehru
Technological University, Hyderabad
represented by the Principal, College of .. Respondent/
Engineering, Kakinada Defendant

The address for service of all notices and to processes on the above named
appellant is that of his Counsel M/s. V.L.N. GOPALA KRISHNA MURTHY
and SUBBA REDDY S. Advocates, House No.3-5-118/9/1, Plot No.54, Street
No.2, Krishna Nagar, Hyderguda, Near Attapur, Rajendra Nagar Mandal,
Hyderabad-500 048.

The above named appellant begs to present this Memorandum of Regular

Appeal against the Judgment and Decree in O.S. No.8 of 2006, dated 17 th
March 2010 on the file of the Court of the IV Additional District Judge
Kakinada for the following among other:

:: G R O U N D S ::

7. The judgement and decree of the Lower Court are contrary to law, weight of
evidence and probabilities of the case.
 2

8. The Lower Court erred in holding that the prayer is a negative declaration. It
should have seen that in substance the suit is one for declaration of title based
on acquisition of title by adverse possession. It is submitted that under the law
of prescription, when the title of one person is extinguished under Sec 27 of the
Limitation Act, 1963 it gets transferred to the person who kept the owner out of
possession. Sec 27 of the Limitation Act explains the true, basis and effect of
the Principle of Adverse Possession. When the Plaintiff is seeking a
declaration that the defendant’s title got extinguished by reason of Plaintiff’s
possession it can mean only a declaration of title by adverse possession.

9. The Lower Court should have seen that in a suit for declaration of title, the
plaintiff can establish his title by any mode of acquisition of title viz., transfer
inter-vivos, testamentary or interstate succession of adverse possession.

10. The Lower Court erred in thinking that the prayer should be framed as one for
declaration of title by employing those words. There is no rule of pleading that
a particular language should be employed to seek a relief. The whole
judgement of Lower Court is vitiated by its failure to appreciate the concept of
acquisition of title by adverse possession by one person and extinguishment of
the title of the other.

11. The Lower Court erred in thinking that the plaintiff must admit the title of
defendant before claiming adverse possession. It is submitted that when the
Plaintiff establishes animus on his own part, where by asserts title in himself to
the exclusion of the all other including the defendant, the requirement of
adverse possession is satisfied.

12. The Lower erred in thinking that even otherwise, the plaintiff has not admitted
the initial title of defendant ignoring the very prayer wherein the plaintiff
sought for a declaration that the defendant’s title got extinguished.

pl add other grounds. lack of time, I could not add grounds basing on
deposition. .

Value of the Appeal is same

as in the Lower Court, i.e.,
 3

Court fee paid is .. Rs.

HYDERABAD,
DATE: COUNSEL FOR THE APPELLANT.
 MEMORANDUM OF CIVIL MISC. PETITION

(UNDER SECTION 151 OF C.P.C.)

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD

A.S.M.P. No. OF 2010

IN

A.S. No. OF 2010

BETWEEN:

For the reasons stated in the accompanying affidavit the petitioner herein

prays that this Hon’ble Court may be pleased to

HYDERABAD,
DATE: COUNSEL FOR THE PETITIONER.