Sri A.moses

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IN THE COURT OF THE ADDL.SENIOR CIVIL JUDGE AT GAJUWAKA

Present:­ Sri.A.MOSES

ADDL. SENIOR CIVIL JUDGE,

GAJUWAKA.

THURSDAY, THE 12 TH DAY OF NOVEMBER, 2015. 

O.S.No.51/2007

Between :­ 

1.Gonti Nooka Raju, S/o late Balaramulu, Hindu, aged about 53 years, retired employee in BHPV, R/at:D.No.1­2­140, Akkireddipalem, BHPV(post), Visakhapatnam­12.

2.Kada Lakshmi, W/o. Ramulu, Hindu, aged about 55 years, household duties, R/at: D.No.1­3­101, Akkireddipalem, BHPV(post), Visakhapatnam­12.

….. Plaintiffs.

And :­ 

1.Nalagonda Simhachalam, W/o not known, Hindu, aged 35 years, coolie, R/at: Akkireddipalem, Near Durgalakunchamamba Ammavari Ground, BHPV post, Visakhapatnam­12.

2.Palavalasa Rama Murthi, S/o not known, Hindu, aged about 40 years, coolie, R/at: rest—do­­

3.Nalagonda Tulasi, W/o not known, Hindu, aged about 38 years, coolie, R/at: rest—do­­

4.Palavalasa Santhi , W/o not known, Hindu, aged about 35 years, coolie, R/at: rest—do­­

5.Nalagonda Pydiamma, W/o not known, Hindu, aged about 40 years, coolie, R/at: rest—do­­

6.Nalagonda Buloka, W/o not known, Hindu, aged about 38 years, coolie, R/at: rest—do­­

7.Korukonda Lakshmi, W/o not known, Hindu, aged about 36 years, coolie, R/at: rest—do­­

8.Nalagonda Mariya, W/o not known, Hindu, aged about 38 years, coolie, R/at: rest—do­­

9.Pujari Venkayyamma, W/o not known, Hindu, aged about 40 years, coolie, R/at: rest—do­­ 2

10.Jagannadham Manga, W/o not known, Hindu, aged about 21 years, coolie, R/at: rest—do­­

11.Gontipothi Sakkubayi (died), W/o Simhachalam, Hindu, aged about ­­years, R/at: rest—do­­

12.Gontipoti Ramulamma, W/o Gadari, Hindu, aged about 45 years, coolie, R/at: rest—do­­

13.Salla Pullamma, W/o Narasimhulu, Hindu, aged about 50 years, coolie, R/at: rest—do­­

14.T.Suryanarayana @ Suribabu, S/o. Not known, Hindu, contractor, aged 58 years, R/at: Akkireddipalem, BHPV post, Visakhapatnam­ 12.

15.Gontipoti Simhachalam, S/o. Not known, Hindu, aged 55 years, coolie, R/at: Near Durgalakunchamamba Ammavari Ground, Akkireddipalem, BHPV post, Visakhapatnam­12.

16.Gontipoti Pydiraju, S/o. Simhachalam, Hindu, aged 31 years, coolie, R/at: Near Durgalakunchamamba Ammavari Ground, Akkireddipalem, BHPV post, Visakhapatnam­12.

17.District Collector, Collector Office, Maharanipeta, Visakhapatnam.

18.Tahasildar, Gajuwaka Mandal Revenue Office, Gajuwaka, Viakhapatnam.

…..Defendants.

This suit coming before me for final hearing on 06­11­2015 in the presence of Sri.V.Kodanda Ramaiah & Sri.P.Rama Rao ­Advocates for the plaintiffs and Sri.Ch.Rathiraj Kalyan & Sri.D.V.Rama

Rao­Advocates for the Defendants and having stood over for consideration, till this day, this court delivers the following:­ 

JUDGMENT

1)This is a suit to direct the defendants to deliver the possession of the suit schedule property to the plaintiffs and in case of the failure by the defendants to evict the defendants through process of 3 the court and put these plaintiffs in possession of the suit schedule property and order the defendants not to make any further constructions and for the consequential permanent injunction (amended as per orders in I.A.476/2006 dt:2­8­2006) and for costs of the suit.

2.The brief contents in the plaint are that the 1st plaintiff is the brother of the 2nd plaintiff and they are joint possessors and owners of the plaint schedule property. Their predecessors have been enjoying the plaint schedule property by raising paddy crop in the plaint schedule. One Medisetty Venkata Swamy, son of Mahalakshmi Naidu, who is no other than the predecessors of plaintiffs, purchased the plaint schedule property including other properties from one Katha

Ramayammappa wife of China Appanna through a registered sale deed,

dt:14­05­1952. Their possession is open, continuous and hostile. These

plaintiffs are the absolute owners of the plaint schedule property and their title is perfected even by adverse possession also. He further submitted that in the year 1955 survey was conducted and by virtue of which the extents mentioned, under different items of the said registered sale deed dt:14­05­1952 were fell in different survey numbers of

Akkireddypalem village. In the said process, the extents mentioned in both item Nos.4 and 5 of said sale deed, dt:14­05­1952 were fell in different survey numbers of Akkireddipalem village. In the said process the extents mentioned in both item no.4 and 5 of said sale deed dt:14­ 05­1952 were jointly fell in survey No.5/10, thus making a total extent of Ac.0.28 cents.

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3.The boundaries were also changed on land, subsequently the plaintiff occupied the vacant land of Ac.0.10 cents in the year 1955 itself, which is situated on the south side of the plaint schedule property and since then these plaintiffs are enjoying the plaint schedule property along with the said occupied Ac.0.10 cents mentioned and they also paying cists to the Government to the entire extent of Ac.0.38 cents which includes plaint schedule also. In the year 1979 these plaintiffs left the said occupied Ac.0.10 cents to the Public Health Department for the purpose of laying a water pipeline into Zinc factory as well as to lay public passage. The remaining extent of Ac.0.28 cents was intact since 1955 and the same is being enjoyed by these plaintiffs. While things stood thus plaintiffs came to know that the MRO of Gajuwaka in S.No.4 which is situated by the eastern side of plaint schedule property.

Subsequently after this allotment the defendants 1 to 13 engaged a civil contractor i.e., defendant No.14 for the constructions of their houses in the alloted house sites. In that connection on 3­9­04 the defendants 1to 13 visited their house sites situated in S.No.4 in order to prepare a plan for the proposed house constructions by the allottees i.e., defendants 1 to 13. While taking measurements, they tried to encroach into the site of Ac.0.28 cents situated in S.No.5/10 which is exclusively belongs to these plaintiffs. Then the plaintiffs objected the same and placed the matter before the MRO who in turn directed the surveyor to settle the dispute and by the intervention of the surveyor the matter has been settled temporarily by that time. On 13­09­2004 and 14­09­2004 the defendants visited the plaint schedule property and tried to lay marking 5 lines unauthorised in order to get the plaint schedule property into their unlawful custody and possession, under the guise of alleged allotment of house sites by the MRO, Gajuwaka in S.No.4 which is situated by the eastern side of plaint schedule property. But these plaintiffs objected the high handed acts of the defendants. Again in the evening of 16­9­ 2004 all the defendants visited the plaint schedule property without having any right whatsoever in the plaint schedule and has given pressures on these plaintiffs for their acceptance to lay marking lines in the schedule property.

4.During the pendency of the suit proceedings on 18­10­2004 the defendants unlawfully and high handedly occupied the suit schedule property and raised constructions thereon, thereby deliberately ignoring the valid possession and title of these plaintiffs. The plaint schedule property is in the possession and enjoyment of the plaintiffs for a long time up to the period of unlawful occupation by the defendants. The possession of the defendants over the suit schedule property is unlawful and not valid under law and hence the defendants are liable to be evicted from the suit schedule property, thereby putting the same into the possession of the plaint. Hence the suit.

5.The 1st defendant filed his written statement and denied all the material allegations in the plaint, except the 4th defendant all the defendants adopted the same by way of a memo. The defendants totally denied the case of the plaintiff and submitted that all the defendants are the assignees took possession of their respective plots and are in possession and enjoyment of their respective plots and residing therein.

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The MRO Gajuwaka allotted house sites to the defendants 1 to 13 approximately an extent of Ac.0.80 cents in S.No.4 in Akkireddypalem village under landless poor quota and that the said land is situated to east of the plaint schedule property. The defendants engaged the 14th defendant as contractor for the purpose of construction of houses on the house sites allotted to the defendants. The defendants submits that after accumulating amounts and with the financial aid being extended by the Government under various welfare schemes engaged the services of the 14th defendant for the purpose of construction of pucca houses.

The contractor i.e., 14th defendant after removing the thatched houses existing in the defendant’s respective plots, laid pillars for the purpose of construction and the said pillars were raised to height of 8 feet approximately for the purpose of laying slab over the said pillars.

6.He further submitted that he is advised that in a suit for permanent injunction the possession over the property being claimed by the plaintiffs is sine­quo­non and since there is no possession much less valid possession in the hands of the plaintiffs. The suit is not maintainable and consequently liable to be dismissed in limine. The defendants have given a report in the Gajuwaka L & O police against the plaintiffs and their henchmen when their harassment reached to a peek but when the report was not taken by the police probably succumbed to their influence, the defendants submitted a complaint to the Gajuwaka

Law and Order police station, and a crime has also been registered against the plaintiffs. Since the plaintiffs themselves are not sued of their title and expressed a doubt and claiming adverse possession, the 7 suit for permanent injunction is not maintainable and is laible to be dismissed in limine. Hence they prays to dismiss the suit with costs.

7.On perusal of the pleadings, documents filed on either side, the following issues were settled for trial.

1. Whether the plaintiff is entitled to recover the schedule property after evicting the defendants as prayed for?

2. To what relief?

8.To prove the case of the plaintiffs, Pws.1to 3 were examined and marked Exs.A1 to A3. On the defendant's side DWs.1 to 7 were examined and marked Exs.B1 to B6. The Tahsildar, Gajuwaka was examined as CW.1.

9.ISSUE NO.1:­

The plaintiffs are contending that the suit schedule property is the ancestral property and they were in possession and enjoyment of the same and their title is covered under Ex,A1 registered sale deed

dt:14­05­1952 and further contended that the then Mandal Revenue

Officer, Gajuwaka issued pattas to the defendants 1 to 13 in survey number 4 of Akkireddipalem village and when the defendants are trying to encroach into the plaint schedule property the plaintiffs filed this suit and later the plaint was amended with the consequential relief of permanent injunction and recovery of possession of the plaint schedule property from the defendants as the defendants during the pendency of the suit encroached into the plaint schedule property. The case of the defendants is total denial and they contended that they were granted 8 house site pattas and when they were trying to construct houses in the plots allotted to the defendants these plaintiffs filed the suit and the suit is not maintainable.

10.To prove the case of the plaintiffs, the 1st plaintiff was examined as PW.1 and he reiterated the entire pleadings of the plaint as that of his chief evidence affidavit. He exhibited Ex.A1 is the registered sale deed dt:14­05­1952, Ex.A2 is the certified copy of the extract of fair land register of Akkireddipalem village dt:2­01­1976, Ex.A3 and A4 are cist receipts in favour of the 1st plaintiff. PW.2 is the one Pilla Nooka­

Raju a neighbouring owner of the plaint schedule property of

Akkireddipalem who corroborated the evidence of PW.1. PW.3 is one

Pilla Veeranna a neighbouring owner of the plaint schedule property also corroborated the evidence of PWs.1 and 2.

11.On the defendants side DWs.1 to 7 were examined and they deposed that the Mandal Revenue Officer, Gajuwaka issued pattas to them for an extent of 60 sq.yards each and they also exhibited EXs.B1 to

B6 which are the pattas granted to them in S.No.4P of Akkireddipalem village. The chief affidavits of DWs.1 to 7 are the as it is contents in the written statement.

12.On careful perusal of the oral evidence and the documentary evidence on either side it is a fact that the plaintiffs are asserting their title under Ex.A1. The defendants are contending that they were given pattas in S.No.4P as per the Exs.B1 to B6. Nothing was elicited in the cross examination of PWs.1 to 3. It is the contention of the plaintiffs that the plaint schedule property is an agricultural land. DW.1 in his 9 cross examination admitted that the plaint schedule is a cultivable land and he further stated that he never resided in the plaint schedule property and he do not know the contents in his evidence affidavit as he is illiterate. DW.6 is a 3rd party and he is claiming as a social worker in his cross examination deposed that he was present at the time of the survey of land in survey number 4P and he do not know whether survey number 4P is situated on the area of survey number 5/10 and he is not having any land nearer to survey number 4P. On examination of the evidence on the defendant’s side, DWs.1 to 7 clear evidence is that they were granted pattas in survey number 4P of Akkireddipalem village.

13.CW.1 is the Tahsildar, Gajuwaka who deposed that Exs.B1 to B6 are the pattas issued by the then Mandal Revenue Officer,

Gajuwaka were in survey number 4P of Akkireddipalem and each patta issued for an extent of 60 sq.yards. In his cross examination he stated that he physically visited survey number 4P of Akkireddipalem some of the beneficiaries constructed houses in survey number 4P and some of the beneficiaries left vacant. There is a road on the south of the plaint schedule property. He cannot say whether the suit schedule property is situated in S.No.5/10 or 4P of Akkireddipalem village. S.No.4P of

Akkireddipalem is purely a Government land. Thus it is clear from the evidence on the defendant’s side that the defendants were given pattas for a Government land in S.No.4P. The plaintiffs are claiming their title under Ex.A1 and S.No.5/10 is a zyroit land. During the pendency of the suit the Junior Civil Judge’s court, Gajuwaka appointed an Advocate 10

Commissioner in I.A.21/05 in O.S.498/2004 on the file of Junior Civil

Judge’s Court, Gajuwaka.

14.The Commissioner submitted a report, according to the report of the Commissioner a Mandal Surveyor assisted the commissioner and the Mandal Surveyor measured the plaint schedule property with the revenue record and the Mandal Surveyor identified the plaint schedule property. The plaint schedule property was situated in

S.No.5/10 of Akkireddipalem village according to FMB sketch. The

Commissioner also stated in his report that there are some partly constructed house upto slab level and there are no doors and windows each house consists of two rooms along with that one foundation is laid upto the plinth beam level and pillars 4 in number were laid upto the height of 2 feet from ground level and those constructions were in

S.No.5/10. As per the report of the Commissioner the suit schedule property is in S.No.5/10 of Akkireddipalem village and the report corroborates the contents in Ex.A1 . The plaintiff is claiming his title under Ex.A1 and the same was corroborated by the report of the

Commissioner. The defendants are claiming their title under Exs.B1 to

B6 and their plots were in S.No.4P. But according to the Commissioner report and the evidence of PWs.1 to 3 some of the constructions were made by the defendants in S.No.5/10 of Akkireddipalem village. 

15. The defendants in their written statement taken a plea that the suit is not maintainable as the suit is only for permanent injunction and in this suit the plaintiff cannot seek the relief of eviction of the defendants and deliver of vacant possession. Cist receipts paid by the 11 1st plaintiff clearly shows that the plaintiffs are in possession and enjoyment of the plaint schedule property. By mistake there was no issue for consequential relief of permanent injunction was not settled though the plaint was amended as per the orders in I.A.476/06 dt:2­8­ 2006. Though the issue was not settled and on perusal of the evidence on either side, the evidence already on record reflected that the evidence is sufficient to give of finding of consequential relief of permanent injunction as the defendants are not claiming the property in S. No.5/10 of Akkireddipalem village and the property in EX.A1 is belongs to the ancestors of the plaintiffs it can safely concluded that the plaintiffs are the absolute owners of the plaint schedule property and they were in possession of the schedule property and that the defendants have to prove that their pattas under Exs.B1 to B6 were in S.No.5/10 and that the plaintiff is entitled to seek relief of deliver of possession of the suit schedule property to the plaintiffs by evicting the defendant and the plaintiff is also entitled for consequential relief of permanent injunction.

As the defendants are claiming property in S.No.4P and if injunction is granted for the plaint schedule property situated in S.No.5/10 of

Akkireddipalem village no loss will be caused to the defendants and to their title.

16.In the result the suit is decreed with costs directing the defendants to deliver the possession of the suit schedule property to the plaintiffs and in case of failure the defendants are at liberty to evict the defendants through process of Law and seek possession of the suit schedule property and the defendants are hereby restraining not to 12 make any further constructions in the plaint schedule property and further by granting consequential relief of permanent injunction against the defendants.

Dictated to Grade­II Stenographer, corrected and pronounced by me in the

open court, this the 12 th day of NOVEMBER, 2015.

ADDL.SENIOR CIVIL JUDGE,

GAJUWAKA.

APPENDIX OF EVIDENCE :­ Witnesses examined for :­ 

Plaintiff :­ Defendant :­ 

PW.1: G.Nooka RajuDW.1: G.Ramulamma

PW.2: P.Nooka RajuDW.2: N.Tulasi

PW.3: P.VeerannaDW.3: P.Santhi

DW.4: N.Paidamma

DW.5: J.Babu Rao

DW.6: S.Ram Babu

DW.7: B.Anjaneyulu

Exhibits marked for :­

Plaintiff :­

Ex.A.1 is the registered sale deed dt:14­05­1952

Ex.A2 is the certified copy of extract of fair land registered of

Akkireddipalem village dt:2­1­1976

Ex.A3 is the four cist receipts in favour of one Gonthina Nooka Raju.

Defendant :­

Ex.B1 is the patta dt:7­12­99 issued by Mandal Revenue Officer, Gajuwaka.

..contd..pg.13.

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Ex.B2 is the Encumbrance certificate

Ex.B3 is the Appendix No.XIX in BSO No.21(7)(ii) defendants 1 to 13

dt:7­12­99

Ex.B4 is the Appendix No.XIX in BSO No.21(7)(ii) defendants 1 to 13

dt:7­12­99

Ex.B5 is the Appendix No.XIX in BSO No.21(7)(ii) defendants 1 to 13

dt:7­12­99

Ex.B6 is the patta dt:7­12­99

CW.1: T.Venu Gopal

A.S.C.J./GWK.

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Date of presentation :28­08­2014 Date of filing :17­09­2014

IN THE COURT OF THE ADDL.SENIOR CIVIL JUDGE AT GAJUWAKA

Present:­ Sri.A.MOSES

ADDL. SENIOR CIVIL JUDGE,

GAJUWAKA.

THURSDAY, THE 12 TH DAY OF NOVEMBER, 2015. 

O.S.No.51/2007

Between :­ 

1.Gonti Nooka Raju, S/o late Balaramulu, Hindu, aged about 53 years, retired employee in BHPV, R/at:D.No.1­2­140, Akkireddipalem, BHPV(post), Visakhapatnam­12.

2.Kada Lakshmi, W/o. Ramulu, Hindu, aged about 55 years, household duties, R/at: D.No.1­3­101, Akkireddipalem, BHPV(post), Visakhapatnam­12.

….. Plaintiffs.

And :­ 

1.Nalagonda Simhachalam, W/o not known, Hindu, aged 35 years, coolie, R/at: Akkireddipalem, Near Durgalakunchamamba Ammavari Ground, BHPV post, Visakhapatnam­12.

2.Palavalasa Rama Murthi, S/o not known, Hindu, aged about 40 years, coolie, R/at: rest—do­­

3.Nalagonda Tulasi, W/o not known, Hindu, aged about 38 years, coolie, R/at: rest—do­­

4.Palavalasa Santhi , W/o not known, Hindu, aged about 35 years, coolie, R/at: rest—do­­

5.Nalagonda Pydiamma, W/o not known, Hindu, aged about 40 years, coolie, R/at: rest—do­­

6.Nalagonda Buloka, W/o not known, Hindu, aged about 38 years, coolie, R/at: rest—do­­

7.Korukonda Lakshmi, W/o not known, Hindu, aged about 36 years, coolie, R/at: rest—do­­

8.Nalagonda Mariya, W/o not known, Hindu, aged about 38 years, coolie, R/at: rest—do­­ 15

9.Pujari Venkayyamma, W/o not known, Hindu, aged about 40 years, coolie, R/at: rest—do­­

10.Jagannadham Manga, W/o not known, Hindu, aged about 21 years, coolie, R/at: rest—do­­

11.Gontipothi Sakkubayi (died), W/o Simhachalam, Hindu, aged about ­­years, R/at: rest—do­­

12.Gontipoti Ramulamma, W/o Gadari, Hindu, aged about 45 years, coolie, R/at: rest—do­­

13.Salla Pullamma, W/o Narasimhulu, Hindu, aged about 50 years, coolie, R/at: rest—do­­

14.T.Suryanarayana @ Suribabu, S/o. Not known, Hindu, contractor, aged 58 years, R/at: Akkireddipalem, BHPV post, Visakhapatnam­ 12.

15.Gontipoti Simhachalam, S/o. Not known, Hindu, aged 55 years, coolie, R/at: Near Durgalakunchamamba Ammavari Ground, Akkireddipalem, BHPV post, Visakhapatnam­12.

16.Gontipoti Pydiraju, S/o. Simhachalam, Hindu, aged 31 years, coolie, R/at: Near Durgalakunchamamba Ammavari Ground, Akkireddipalem, BHPV post, Visakhapatnam­12.

17.District Collector, Collector Office, Maharanipeta, Visakhapatnam.

18.Tahasildar, Gajuwaka Mandal Revenue Office, Gajuwaka, Viakhapatnam.

…..Defendants.

1.This is a suit to direct the defendants to deliver the possession of the suit schedule property to the plaintiffs and in case of the failure by the defendants to evict the defendants through process of the court and put these plaintiffs in possession of the suit schedule property and order the defendants not to make any further constructions and for the consequential permanent injunction (amended as per orders in I.A.476/2006 dt:2­8­2006) and for costs of the suit.

2.Value of the suit for the purpose of court fee and jurisdiction is Rs.1,27,500/­ (Rupees One Lakh twenty seven thousand and five hundred only) and a court fee of Rs.3,726/­ is paid under Section 29 of A.P.C.F. and S.V.Act.

3.This suit coming before me for final hearing on 06­11­2015 in the presence of Sri.V.Kodanda Ramaiah & Sri.P.Rama Rao ­Advocates for the plaintiffs and Sri.Ch.Rathiraj Kalyan & Sri.D.V.Rama­ 16

Rao­Advocates for the Defendants and having stood over for consideration, till this day, this court; and

D E C R E E

1) that the suit be and the same is hereby decreed;

2) that the defendants are directed to deliver the possession of the suit schedule property to the plaintiffs and in case of failure the defendants are at liberty to evict the defendants through process of Law and seek possession of the suit schedule property;

3) that the defendants are hereby restraining not to make any further constructions in the plaint schedule property and further by granting consequential relief of permanent injunction against the defendants.

4) that the defendants do pay to the plaintiffs a sum of

Rs.3,868/­ towards costs of this suit. 

Note:­ A schedule is hereby attached to decree.

Given under my hand and seal of this court, this the 12 th day of November, 2015.

ADDL. SENIOR CIVIL JUDGE,

GAJUWAKA.

MEMORANDUM OF COSTS

FOR PLAINTIFF: FOR DEFENDANT:

Rs. ps. ­­No cost memo is filed on ­ Stamp on vakalat 2­00either sides­­ Stamp on plaint 3,726­00 Stamp on process 140­00 ­­­­­­­­­­­­­­­­­­­ Institution costs allowed Rs.3,868­00 –­­­­­­­­­­­­­­­­­­­

A.S.C.J./GWK.

17

1

FAIR

I N THE COURT OF THE JUNIOR CIVIL JUDGE :: GAJUWAKA

Present: Sri A.Moses, M.A., B.L.,

Junior Civil Judge, Gajuwaka,

Tuesday, this the 6 th day of August, 2013

ORIGINAL SUIT NO.463/2009

Between:

1. Kanithi Govinda Raju, Son of Appa Rao, Hindu, Aged 33 years,

Residing at Kanithi, Vadlapudi R.H.Colony, Gajuwaka Mandal,

Visakhapatnam.

2. Aripaka Eswaramma, Wife of late Viswanadham, Hindu, Aged 47 years, Residing at Kagitalavari Veedhi, Near Venkateswara swamy temple, Peda Waltair, Visakhapatnam.

...Plaintiffs

And:

1. Yerravarapu Suryanarayana, Son of late Appanna, Hindu, Aged 56 years, Residing at Mangala Veedhi, Vadlapudi RH Colony, Gajuwaka,

Visakhapatnam.

2. Yerravarapu Tatababu, Son of late Appanna, Hindu, Aged 44 years,

Residing at Mangala Veedhi, Vadlapudi RH Colony, Gajuwaka,

Visakhapatnam.

Proposed Defendants:

3. Yarravarapu Lakshmi, Wife of late Suryanarayana, Hindu, Aged 48 years, Residing at Mangala Veedhi, Vadlapudi RH Colony, Gajuwaka,

Visakhapatnam.

4. Yarravarapu Neelakantam, Son of late Suryanarayana, Hindu, Aged 30 years, Residing at Mangala Veedhi, Vadlapudi RH Colony,

Gajuwaka, Visakhapatnam.

5. Yarravarapu Appalaraju, Son of late Suryanarayana, Hindu, Aged 25 years, Residing at Mangala Veedhi, Vadlapudi RH Colony, Gajuwaka,

Visakhapatnam.

6. Yarravarapu Vijaya Kumar, Son of late Suryanarayana, Hindu, Aged 19 years, Residing at Mangala Veedhi, Vadlapudi RH Colony,

Gajuwaka, Visakhapatnam.

7. Yarravarapu Jayalakshmi, D/o.late Suryanarayana, Residing at

Mangala Veedhi, Vadlapudi RH Colony, Gajuwaka, Visakhapatnam.

2 (The defendants 3 to 7 are added as per the Orders in IA.433/2011, dtd.13-06-2012).

... Defendants

This suit coming on 23-07-2013 for final hearing before me in the presence of Sri V.Kodanda Ramaiah, Sri P.Rama Rao (Ramu),

Sri G.Appa Rao and Smt M.Pavani, Advocates for plaintiffs and

Sri V.Shammi, Advocate for Defendants and having stood over till this day for consideration, this court delivered the following:

JUDGEMENT

This is a suit for permanent injunction restraining the defendants, their men and agents from ever interfering with peaceful possession and enjoyment of the suit schedule property and for costs of the suit.

2)The case of the plaintiffs as per the plaint allegations that the 1st plaintiff is the brother of the 2nd plaintiff. The 1st plaintiff is the absolute owner of the plot NO.1673 for an extent of 107 square yards situated in

Sector-2, Vadlapudi village, Kanithi RH Colony and the 2nd plaintiff is the absolute owner of plot NO.1672 in the same locality. The plaint A & B schedule properties were allotted to the plaintiffs 1 and 2 on 20-11-2004 by

Special Grade Deputy Collector, Land Acquisition Steel Plant,

Visakhapatnam and pattas were issued in their favour accordingly. The plaintiffs constructed a thatched house in the suit schedule property and they also obtained electricity connection to the schedule property in the month of January, 2005. The plaintiffs 1 & 2 are brother and sister and the plaint A & B schedule properties are side by side they constructed common compound wall around the schedule properties. While the plaintiffs are enjoying the schedule properties the defendants without any manner of right tried to interfere in the peaceful possession and enjoyment of the suit schedule property and damaged the Eastern side compound wall and 3 caused loss to the plaintiffs, then the plaintiff No.1 lodged a complaint to the Gajuwaka police and the police sought clarification from the Land

Acquisition Authorities, Steel Plant with regard to the plot Nos.1673 and 1672 and the Steel Plant authorities informed to the police that plot

NOs.1673 and 1672 were allotted to the plaintiffs. Mean while, the defendants filed a Writ Petition. 5341/2005 before the Hon'ble High Court of Andhra Pradesh with regard to the schedule property with false and fabricated documents against the District Collector, Visakhapatnam and

Revenue Divisional Officer cum Special Officer (LA), Steel Plant,

Visakhapatnam filed their counter where in they specifically denied the boundaries of patta infavour of the defendants and they also filed the counter to that extent. The defendants herein filed OS.187/99 on the file of this court against the husband of the 2nd plaintiff and against the Special

Officer, LA, Visakhapatnam and the said suit was dismissed on 30-3-2012 and they preferred appeal in AS.1/2004 on the file of Senior Civil Judge,

Gajuwaka and the same was dismissed confirming the judgment and decree in OS.187/99 on the file of this court as the defendants are not in possession of the schedule properties. As the defendants are trying to encroach into the schedule property by causing nuisance at the suit schedule property. The plaintiffs filed this suit for permanent injunction against the defendants.

3)The defendants 1 & 2 filed their written statement and the same was adopted by the defendants 3 to 7 denying all the material allegations in the plaint. The defendants are contending that AS.1/2004 on the file of Senior Civil Judge's Court, Gajuwaka appeal is pending for the same schedule property. The defendants admitted the filing of petitions they contended they are the displaced persons and they obtained sanction proceedings in Right to Information Act in proceedings R.C.72/85, 4 dtd.23-04-1990 of the Special Officer pursuing the orders of High Court in

Writ Petition No.633/89 dtd.7-9-1989 and the decision of the screening committee declaring the cards genuine, hence they are the displaced persons. They also denied that the plaintiffs constructed a compound wall around the plot Nos.1672 and 1673 as they are situated side by side and they further denied that the 1st plaintiff lodged complaint with the police and the police sought clarification from the Steel Plant authorities declaring that plot Nos.1673 and 1672 were allotted to the plaintiffs are all the denied by the defendants. The defendants are the absolute owners of the plot Nos.1672 and 1673 and they are enjoying the properties with the knowledge of one and all in the locality. Hence, they prays to dismiss the suit with costs.

4) On perusal of the pleadings on either side documents filed the following issues are settled for trial:

1. Whether the plaintiffs are entitled for permanent injunction as prayed for?

2. Whether the plaintiff are in possession and enjoyment in the suit schedule property?

3. Whether the suit schedule property does not belongs to the plaintiffs?

4. Whether the documents filed regarding the suit schedule property were fake and fabricated one?

5. Whether the suit for permanent injunction filed by the plaintiffs not maintainable?

6. To what relief?

5)To prove the case of the plaintiffs, Pws.1 and 2 are examined and Exs.A.1 to A.9 are marked. On the defendants side Dws.1 to 3 are 5 examined. The evidence of DW.2 is eschewed and Exs.B.1 to B.5 are marked.

6)Issue Nos.1 to 6 are inter related and issues 1,2 and 6 are only relevant to decide the real dispute between the parties, as the suit is for bare permanent injunction. In view of the above reasons I intends to discuss the issues 1, 2 and 6 only and the other 3 to 5 issues are not relevant that there is a pleading on the defendants side and the plaintiffs.

7)ISSUE Nos.1 & 2: The case of the plaintiffs is that they are the brother and sister and they were granted plot Nos.1672 and 1673 for an extent of 107 square yards each situated in sector-2, Vadlapudi Village by the Special Grade Deputy Collector, Land Acquisition, Steel Plant,

Visakhapatnam on 20-11-2004 which is the plaint schedule herein. As the defendants are also contended that plot Nos.1673 and 1672 are allotted to the defendants 1 and 2 and the defendants are causing nuisance and tried to encroach into the property, the plaintiffs filed the suit for permanent injunction against the defendants.

8)To prove the case of the plaintiffs, the 1st plaintiff was examined as PW.1 who reiterated his entire plaint pleadings in his chief affidavit and exhibited the following documents on behalf of the plaintiffs.

Ex.A.1 is the original proceedings issued by the Special Grade Deputy

Collector, Land Acquisition, Steel Plant, Visakhapatnam infavour of plaintiff

No.1, dtd.20-11-2004, Ex.A.2 is the original patta issued infavour of 1st plaintiff, dtd.20-11-2004, Ex.A.3 is the original proceedings issued by the

Special Grade Deputy Collector, Land Acquisition, Steel Plant,

Visakhapatnam infavour of plaintiff NO.2, dtd.2011-2004, Ex.A.4 is the certified copy of written statement of Special Officer Land Acquisition in

OS.187/1999 on the file of this court, Ex.A.5 is the certified copy of the

deposition of Y.Narasimha Rao, Special Officer, Land Acquisition in 6

Os.187/1999, Ex.A.6 is the original receipt issued by the Gajuwaka Police,

dtd.04-10-2008, Ex.A.7 are nine original electricity bills along with receipt,

Ex.A.8 is the certified copy of the judgment in AS.1/2004, dtd.30-03-2012 and Ex.A.9 is the certified copy of FIR, Charge sheet and statements.

9)PW.2 is a third party deposed that the plaintiffs 1 and 2 were allotted plot Nos.1673 and 1672 infavour of the plaintiffs by the Land

Acquisition Authorities of Steel Plant for an extent of 107 square yards each. He further deposed that they were in possession and enjoyment of the suit schedule properties.

10)The 2nd defendant was examined as DW.1 and he reiterated his pleadings in his written statement as that of his chief affidavit. DW.1 exhibited the following documents on their behalf Ex.B.1 is the certified copy of the order in Writ Petition NO.5341/2005, Ex.B.2 is the four photographs along with CD, Ex.B.3 is the original proceedings issued by

Additional Commissioner of Industries, Land Acquisition, Steel Plant,

Visakhapatnam, Ex.B.4 is the certified copy of Order in Writ petition

No.27876/2012 by the Hon'ble High Court of Andhra Pradesh, Hyderabad and Ex.B.5 is the xerox copy of plot handed over receipt issued by Special

Surveyor, Land Acquisition, Visakhapatnam. DW.3 is a third party to the proceedings who deposed that plot Nos.1672 and 1672 are in possession and enjoyment of the defendants from the date of allotment of the plots in their favour and the plaintiffs are never in possession and enjoyment of the suit schedule properties. This is all the gist of the evidence on either side.

11)On careful perusal of the evidence and documents filed by either side, the prime contention of the plaintiffs are that the plaintiffs were allotted plot Nos.1673 and 1672 under Exs.A.1, A.2 and A.3. On the other hand the defendants are contending that the plot Nos.1673 and 1672 are allotted to the defendants and they relied on Ex.B.3. It is an admitted 7 fact that the defendants filed OS.187/99 on the file of this court against the husband of the 2nd plaintiff and against the Special Officer, Land

Acquisition, Steel Plant, Visakhapatnam and the said suit was dismissed.

Though the suit was filed for the same plaint schedule herein. It is further admitted fact that the defendants preferred appeal against the judgment and decree in OS.187/99 as A.S.01/2004 and the said appeal was also dismissed by the Hon'ble Senior Civil Judge's Court confirming the judgment and decree of the lower court. The Hon'ble Senior Civil Judge's

Court in AS.1/2004 holding that the plaintiffs in OS.187/99 (defendants herein) are not in possession and enjoyment and they have no right over the plaint schedule property and they are not entitled for relief of permanent injunction against the husband of the 2nd plaintiff and against the Special Officer, Land Acquisition, steel Plant, Visakhapatnam. Thus, it is clear the defendants herein are not in possession and enjoyment of the suit schedule property as hold by the Hon'ble Senior Civil Judge in As.1/2004.

12)DW.1 in his cross examination admitted that the suit filed by him in OS.187/99 and the appeal filed against the decree passed in that suit are also dismissed believing that as the proceedings issued to him and his brother are fake one. It is further admitted fact that the criminal complaint was lodged against the defendants and the defendants also admitted the same. Ex.A.9 is the certified copy of FIR, Charge sheet and statement alleging that these defendants contesting the suit OS.187/99 and As.1/2004 and all Writ Petitions filed by the defendants and the documents relied by one are all fake and fabricated one. Ex.B.1 is the orders in Writ Petition NO.5341/2005 wherein his Lordship held the petitioners (defendants herein) are however at liberty to pursue appropriate alternative remedies including, if so advised, in AS.No.1/2004 on the file of learned Senior Civil Judge, Gajuwaka or any other 8 proceedings, as advised. It is clarified that the observations made herein are confined to the context of this case and shall not be construed as the pronouncement by this court either on the assertions on behalf of the petitioners or the contra claims on behalf of the respondents. The appropriate forum considering the disputes between the parties shall consider such disputes on the basis of the record before it. If that observation the Writ petition is dismissed.

13)The defendants herein as appellants in AS.1/2004 contested the matter with the observations made by the Hon'ble High Court and finally the Hon'ble Senior Civil Judge dismissed the appeal filed by the defendants herein in AS.1/2004 holding that the defendants herein are not in possession and enjoyment of the suit schedule property. The documents relied by the defendants under Exs.B.1 to B.5 are also not proving the possession over the schedule property and the title by themselves are also not proved by them as per the documents relied by the plaintiffs.

14)In view of the foregoing reasons I am of the opinion that the plaintiffs are in possession and enjoyment of the suit schedule property and they are entitled for permanent injunction as prayed for. Issues 1 & 2 are held infavour of the plaintiffs and against the defendants/

15)ISSUE NO.6: In the result, the suit is decreed with costs by granting permanent injunction restraining the defendants, their men and agents from ever interfering with the peaceful possession and enjoyment of the suit schedule property.

Dictated to Personal Assistant, transcribed by her, corrected and

pronounced by in the open court, this the 6 th day of August, 2013.

JUNIOR CIVIL JUDGE,

GAJUWAKA

9

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs:For Defendants:

P.W.1: Kanithi Govinda RajuD.W.1: Yarravarapu Tata Babu P.W.2: Chitrada Venkata RamanaD.W.2: Dasari Apparao (Eschewed) D.W.3: Kanithi Appa Rao

NO. OF DOCUMENTS MARKED

For Plaintiffs:

Ex.A.1/20-11-2004Original proceedings issued by the Special Grade Deputy Collector, Land Acquisition, Steel Plant, Visakhapatnam infavour of plaintiff No.1. Ex.A.2/20-11-2004Original patta issued infavour of 1st plaintiff. Ex.A.3/20-11-2004Original proceedings issued by the Special Grade Deputy Collector, Land Acquisition, Steel Plant, Visakhapatnam infavour of plaintiff NO.2. Ex.A.4/NilCertified copy of written statement of Special Officer Land Acquisition in OS.187/1999 on the file of this court. Ex.A.5/NilCertified copy of the deposition of Y.Narasimha Rao, Special Officer, Land Acquisition in Os.187/1999. Ex.A.6/04-10-2008Original receipt issued by the Gajuwaka Police. Ex.A.7/NilOriginal nine electricity bills along with receipt. Ex.A.8/30-03-2012Certified copy of the judgment in AS.1/2004. Ex.A.9/NilCertified copy of FIR, Charge sheet and statements.

For Defendants: Ex.B.1/NilCertified copy of the order in Writ Petition NO.5341/2005. Ex.B.2/NilFour four photographs along with CD. Ex.B.3/NilOriginalproceedingsissuedbyAdditional Commissioner of Industries, Land Acquisition, Steel Plant, Visakhapatnam. Ex.B.4/NilCertified copy of Order in Writ petition No.27876/2012 by the Hon'ble High Court of Andhra Pradesh, Hyderabad. Ex.B.5NilXerox copy of plot handed over receipt issued by Special Surveyor, Land Acquisition, Visakhapatnam.

JCJ/GWK.

10

Date of Presentation: 01-12-2009 Date of Filing: 01-12-2009

I N THE COURT OF THE JUNIOR CIVIL JUDGE :: GAJUWAKA

Present: Sri A.Moses, M.A., B.L.,

Junior Civil Judge, Gajuwaka,

Tuesday, this the 6 th day of August, 2013

ORIGINAL SUIT NO.463/2009

Between:

1. Kanithi Govinda Raju, Son of Appa Rao, Hindu, Aged 33 years,

Residing at Kanithi, Vadlapudi R.H.Colony, Gajuwaka Mandal,

Visakhapatnam.

2. Aripaka Eswaramma, Wife of late Viswanadham, Hindu, Aged 47 years, Residing at Kagitalavari Veedhi, Near Venkateswara swamy temple, Peda Waltair, Visakhapatnam.

...Plaintiffs

And:

1. Yerravarapu Suryanarayana, Son of late Appanna, Hindu, Aged 56 years, Residing at Mangala Veedhi, Vadlapudi RH Colony, Gajuwaka,

Visakhapatnam.

2. Yerravarapu Tatababu, Son of late Appanna, Hindu, Aged 44 years,

Residing at Mangala Veedhi, Vadlapudi RH Colony, Gajuwaka,

Visakhapatnam.

Proposed Defendants:

3. Yarravarapu Lakshmi, Wife of late Suryanarayana, Hindu, Aged 48 years, Residing at Mangala Veedhi, Vadlapudi RH Colony, Gajuwaka,

Visakhapatnam.

4. Yarravarapu Neelakantam, Son of late Suryanarayana, Hindu, Aged 30 years, Residing at Mangala Veedhi, Vadlapudi RH Colony,

Gajuwaka, Visakhapatnam.

5. Yarravarapu Appalaraju, Son of late Suryanarayana, Hindu, Aged 25 years, Residing at Mangala Veedhi, Vadlapudi RH Colony, Gajuwaka,

Visakhapatnam.

6. Yarravarapu Vijaya Kumar, Son of late Suryanarayana, Hindu, Aged 19 years, Residing at Mangala Veedhi, Vadlapudi RH Colony,

Gajuwaka, Visakhapatnam.

7. Yarravarapu Jayalakshmi, D/o.late Suryanarayana, Residing at

Mangala Veedhi, Vadlapudi RH Colony, Gajuwaka, Visakhapatnam.

11 (The defendants 3 to 7 are added as per the Orders in IA.433/2011, dtd.13-06-2012).

... Defendants

This is a suit for permanent injunction restraining the defendants, their men and agents from ever interfering with peaceful possession and enjoyment of the suit schedule property and for costs of the suit.

Value of the suit for the purpose of court fee and jurisdiction is

Rs.10,000-00 + Rs.10,000-00 each for A & B schedule properties (notionally valued) and a court fee of Rs.1,572/- (Rs.786-00 + Rs.786-00) is paid thereon under Section 26(c), Schedule-I, Article-I (b) & © of A.P.C.F and S.V.Act.

This suit coming on 23-07-2013 for final hearing before me in the presence of Sri V.Kodanda Ramaiah, Sri P.Rama Rao (Ramu),

Sri G.Appa Rao and Smt M.Pavani, Advocates for plaintiffs and

Sri V.Shammi, Advocate for Defendants and having stood over till this day for consideration, this court doth the order;

D E C R E E

1. that the suit be and the same is hereby by is decreed;

2. that the defendants, their men and agents be and are hereby restrained from ever interfering with the peaceful possession and enjoyment of the suit schedule property by way of granting permanent injunction; and

3. that the defendants do also pay the plaintiffs a sum of

Rs.1,663-00 (Rupees One thousand six hundred and sixty three only) towards institutional costs of the suit.

(A copy of plaint schedule is hereto attached)

Given under my hand and the seal of the court, this the 6th day of August, 2013.

JUNIOR CIVIL JUDGE,

GAJUWAKA.

12

MEMORANDUM OF COSTS

For Plaintiff: For Defendants:

Stamp on vakalat :Rs. 2-00No cost memo is filed

Stamp on plaint :Rs. 1,572-00

C.F on documents :Rs. 4-00

C.F on petitions :Rs. 3-00

Process charges:Rs. 82-00 ------------------- Institutional Costs allowed :Rs. 1,663-00 -------------------

JCJ/GWK.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE :: GAJUWAKA

Present : Sri A.Moses,

Additional Senior Civil Judge, Gajuwaka

(FAC) Senior Civil Judge, Gajuwaka

Monday , the Second day of November, 2015

A.S.No.18/2013

Between:

Dwarampudi Bhadram, S/o.Varahalu, Hindu, Aged 52 years, r/at.Near Government School, Appikonda Village, Kamsalavari Veedi, Vadlapudi R.H.Colony, Gajuwaka, Visakhapatnam.

...Appellant/Defendant

And:

Marukonda Appalachari, S/o.Appa Rao, Hindu, aged 50 years, r/at.D.No.18-7-18, Nadipudu R.H.Colony, Pedagantyada, Visakhapatnam.

...Respondent/Plaintiff

APPEAL FILED UNDER ORDER XLI RULE 1 R/W.SEC.96 OF THE CIVIL PROCEDURE CODE, 1908 AGAINST THE DECREE AND JUDGMENT IN O.S.NO.45/2008, DATED 23-07-2012 ON THE FILE OF THE JUNIOR CIVIL JUDGE, GAJUWAKA.

Between:

Marukonda Appalachari, S/o.Appa Rao, Hindu, aged 50 years, r/at.D.No.18-7-18, Nadipudu R.H.Colony, Pedagantyada, Visakhapatnam.

...Plaintiff

And:

Dwarampudi Bhadram, S/o.Varahalu, Hindu, Aged 52 years, r/at.Near Government School, Appikonda Village, Kamsalavari Veedi, Vadlapudi R.H.Colony, Gajuwaka, Visakhapatnam.

...Defendant

This appeal coming on 26-10-2015 for hearing in the presence of S/Sri V.Kodanda Ramaiah, P.Rama Rao (Ramu), Advocates on behalf of the appellant/defendant and Sri M.Pattabhi Rama Rao, Advocate on behalf of the respondent/plaintiff and upon hearing and considering the material on record, the appeal is having stood over for consideration, this Court delivered the following:

J U D G M E N T

This is an appeal filed by the appellant/defendant against the

Judgment and Decree passed by the trial court by granting Permanent Injunction in

O.S.No.45/2008, dated 23-07-2012 on the file of Junior Civil Judge, Gajuwaka. For

better appreciation of facts, the averments in the plaint and written statement are narrated hereunder.

2

2.The averments of the plaint are in brief as follows:

That the plaintiff was allotted 107 Square Yards of site by the Land

Acquisition authorities of the Steel Plant, as the land of his father Marukonda Appa rao was acquired. The said site is in plot No.1293, R-Card was issued to him. The

Mandal Revenue Officer issued patta in respect of the said land. The Greater

Visakhapatnam Municipal Corporation, Visakhapatnam assessed the site and subjected to him to tax and and issued tax pass book. Since then, he has been paying taxes to Greater Visakhapatnam Municipal Corporation, Visakhapatnam, that being so, when the defendant tried to interfere with his possession and enjoyment of the plaint schedule property, he filed the suit for Permanent Injunction.

3.The averments in the written statement are that

The defendant is the absolute owner of plot No.1292 measuring 107 square yards. On the North of it there is plot No.1293 and on the South there is plot

No.1291. The Steel Plant Land Acquisition Authorities issued R-Card No.624 to him in the year 1981 and as the same has been lost, he applied for duplicate copy of it.

In pursuance of the R-card plot No.1292 was allotted to him. However, the plaintiff has been claiming the very same plot No.1292 by showing the same as 1293. After the Land Acquisition authorities handed over him the plaint schedule property he has been in possession and enjoyment of the same. He filed the original patta along with the written statement. When the defendant has been clearing the bushes in the plaint schedule property, the plaintiff objected and he gave a report to the police.

Then the police enquired the Special Grade Deputy Collector, Land Acquisition, Steel

Plant, Visakhapatnam and the authorities gave it in written, stating the R-Card No.

1009 and R-Card No.624 of Nadapuru Village are allotted to the plaintiff and the defendant respectively and in respect of R-card No.1009 plot No.1293 of the plaintiff no patta was granted in favour of the plaintiff. The said correspondence is submitted with the written statement.

4.The defendant gives two analogies in support of his claim. According to boundaries given in the schedule attached to the plaint, plot No.1293 is having road on East, West and North and plot No.1292 is on the South. As such, the plot 3

No.1293 should be last in the row. Plot No.1291 is on the South of the 1292 of the defendant. The said plot No.1291 belongs to Marukonda Eswara Rao, wherein the said Eswara Rao constructed a pacca house. His R-card is also filed with written statement. Hence he prays to dismiss the suit.

5.Basing on the above pleadings, the following issues are settled by the

Court for trial :

1. Whether plaintiff is entitled for permanent injunction as prayed for ?

2. Whether the plaintiff is in possession and enjoyment of the schedule property?

3. Whether there is no cause of action to file the suit?

4. Whether the suit is not maintainable?

5. To what relief?

6.The plaintiff in order to prove his case besides examining himself as

P.W.1, P.Ws.2 and 3 were also examined on his behalf and marked Exs.A.1 to A.9.

The defendant on the other hand to prove his case besides examining himself as

D.W.1, D.Ws.2 to 4 were also examined on his behalf, Exs.B.1 to B.4 and Exs.X.1 and X.2 were also marked through D.W.4. Basing on the documentary and oral evidence the trial Court came to a conclusion that the plaintiff is in possession and enjoyment as on the date of the suit and the suit was decreed by granting permanent injunction.

7.Aggrieved by the said Judgment, the present appeal is filed. For convenience sake the parties may be referred in the same manner as they were arrayed in the original suit. The counsel for the appellant contended that by examining witnesses and by filing documentary evidence proved that the plaintiff is not in possession of the plaint schedule property and the trial Court erroneously concluded and gave a finding that the plaintiff is in possession and decreed the suit and the trial Court failed to appreciate the evidence on the defendant side properly.

8.In view of the rival contentions raised by the parties, oral and documentary evidence let in before the trial court, the following points have to be determined by the Court in the Appeal:

4

1. Whether the plaintiff was in possession of the suit schedule property as on the date of the suit if so, his possession has to be protected?

2. Whether there are any grounds to interfere in the decree and Judgment passed by the trial Court in O.S.No.45/2008?

POINT NO.1:

9.This being the suit for bare Permanent Injunction, the burden of proof is on the plaintiff to establish that he is in possession and enjoyment of the plaint schedule property as on the date of the suit. The Trial Court decreed the suit by granting Permanent Injunction against the defendant. The defendant preferred this

Appeal challenging the decree and Judgment passed by the Trial Court. The Learned

Counsel for the Appellant contended that the Trial Court failed to observe that the plaintiff himself admitted in his cross-examination that he has no right in plot

No.1292 and that plot No.1292 is in Southern boundary of his plot bearing No.1293 in which he erected a shed and doing carpentry work and that there is a vacant site in between the house of Marukonda Eswara Rao and shed constructed by him. The evidence of P.W.1 is itself sufficient to dismiss the suit as the plaintiff is claiming property of the defendant instead of his property in plot No.1293.

10.On careful perusal of the oral and documentary evidence, it is pertinent to note that the Trial Court failed to observe that P.W.2 clearly admitted in his cross- examination that plot No.1293 is last plot to that row and plot No.1292 is situated on the Southern side of plot No.1293. P.W.2 further admitted that there is a vacant plot in between the building belongs to Marukonda Eswara Rao and the shed which is constructed by plaintiff in plot No.1293. P.W.3 also identified photograph shown to him in which the building of Eswara Rao is shown and the said photograph was marked as Ex.B.1. Thus the own witness of the plaintiff deposed that there is a vacant plot in between Marukonda Eswara Rao and the plot of plaintiff and one can easily come to a conclusion that Marukonda Eswara Rao is the owner of plot

No.1291 and the defendant is the owner of plot No.1292 and the plaintiff is the owner of plot No.1293. Plaintiff and his witnesses themselves admitted that the

Southern boundary to plot No.1293 is plot No.1292. But the Trial Court failed to observe the above facts and came to a wrong conclusion that the defendant did not 5 establish that the plot No.1292 was not allotted to the plaintiff.

11.The Trial Court also not taken into consideration of the evidence of D.W.3.

D.W.3 in his cross-examination clearly admitted that the plot of the plaintiff is last plot in that street and in the plot No.1293 the plaintiff has constructed shed and in that shed he is doing carpentry work. He also admitted that the plot No.1292 is on the Southern side of the plaintiff plot No.1293 and he also admitted that there is a site measuring about 107 square yards in between the building of Marukonda

Eswara Rao and that of the plaintiff. It clearly established that the plot of the defendant is located in between the plots of Marukonda Eswara Rao and the plot of plaintiff. D.W.3 admitted that plot No.1293 falls on the Northern side of plot of

Marukonda Eswara Rao and that of the plot of defendant i.e., plot No.1292.

12.Thus it is clear that there is a plot in between the plot of plaintiff and the plot of Marukonda Eswara Rao measuring about 107 square yards which belongs to the defendant. The defendant exhibited Exs.B.1 to B.4. Ex.B.1 is the photograph showing the defendant plot in between the plots of Marukonda Eswara Rao and the plaintiff. Ex.B.2 is the original employment card of the defendant having plot

No.1292, Ex.B.3 is the original patta issued by the Mandal Revenue Officer,

Pedagantyada, in respect of plot No.1292 in favour of the defendant, Ex.B.4 is the letter addressed by Special Grade Deputy Collector, Land Acquisition, Steel Plant,

Visakhapatnam to New Port Police Station surveying that the defendant is the owner of plot No.1292 and Ex.X.1 submitted by the Steel Plant Land Acquisition Authority wherein it is stated that the defendant is the owner of plot No.1292 and the plaintiff is the owner of plot No.1293 and there is a shed in plot No.1293 wherein the plaintiff is doing carpentry work in the plot No.1293. Ex.X.2 is the Apology letter of the plaintiff to the Special Surveyor, Land Acquisition, Steel Plant, Visakhapatnam requesting to hand over plot No.1292 to the defendant.

13.The above documents and the oral evidence on the defendant side clearly shows that the defendant is the absolute owner of plot No.1292 and the plot of plaintiff is the Northern side of the defendant plot. D.W.4 is the Special Surveyor,

Steel Plant Land Acquisition Authority, Visakhapatnam who deposed that himself 6 and Revenue Inspector of Steel Plant deputed by Special Grade Deputy Collector,

Land Acquisition, Steel Plant, Visakhapatnam to survey the plot Nos.1292, 1293 on the application of the defendant and he gave report to the Special Grade Deputy

Collector, Land Acquisition, Steel Plant, Visakhapatnam, certifying that both the plots are marked as in Ex.X.1 and he further deposed that as per letter Ex.X.2 he identified plot No.1292 belongs to defendant and plot No.1293 belongs to plaintiff and both the plots are physically existing and they are side by side and further deposed that brother of plaintiff one Rambabu gave threatenings through telephone No.7386582299, after receiving threatenings the Special Grade Deputy

Collector gave report to Greater Visakhapatnam Municipal Corporation,

Visakhapatnam and to Pedagantyada police to identify the person and to take action against him. After tracing out the person the matter was settled before the police by undertaking a letter to the Special Grade Deputy Collector, Steel Plant apologizing the brother of plaintiff and D.W.4 himself and in that letter not to commit such acts in future which is marked as Ex.X.2. Ex.X.2 was written in the presence of plaintiff and defendant and their brothers.

14.He also further deposed that the plot of the defendant 1292 is kept vacant and there is a shed in plot No.1293 which belongs to plaintiff. The above said evidence of D.W.4 is not denied by the plaintiff. Thus as per the evidence of D.W.4, the defendant is the owner of the plot No.1292, which was not considered by the

Trial Court and erroneously decreed the suit. D.W.2 is the own brother of the plaintiff who deposed that he is the owner of plot No.1291 and the plot of the defendant is on the Northern side of his plot and there are plots towards Northern side of his plot i.e., 1292, 1293 and 1293 is having foundation and a shed belongs to the plaintiff and as per the evidence of D.W.2, he is the owner of plot No.1291 and the defendant is the owner of plot No.1292 and the plaintiff is the owner of 1293.

15.During the cross-examination of D.W.3, the plaintiff himself put a question that the suit schedule property is in plot No.1292 and the Northern side of the suit schedule property i.e., the plaintiff's plot No.1293 was situated. This piece 7 of evidence shows that the plaintiff's suit schedule property is in plot No.1292 and the plaintiff's plot is situated on the Northern side of plot No.1292. The plaintiff himself admitted in the cross-examination of D.W.3 that the suit schedule property is in plot No.1292 and his plot is situated on the Northern side of plot No.1292.

16.In view of the fore going discussion, it is clear that though plot No.1293 was allotted to the plaintiff but he is mischievously claiming plot No.1292 that belongs to the defendant and by the cross-examination of D.W.3, the same was established but unfortunately the Trial court has not considered the cross-examination of D.W.3 by the plaintiff's counsel. The Trial Court at para 12 of its Judgment it was mentioned “The claim of the defendant that the plaintiff has

been trying to establish that plot No.1292 is plot No.1293 with a view to have

wrongful gain is not established”. And further the attempt of the defendant to show that the plot No.1292 was not allotted to the plaintiff has not been established though he examined D.W.4.

17.The conclusion of the Trial Court is against the evidence of D.W.3. The cross-examination of D.W.3 well established the plea of the defendant that the plaintiff is trying to grab his plot No.1292. In view of the fore going reasons, I came to a conclusion that the plaintiff is failed to establish that he is in possession and enjoyment of the suit schedule property as on the date of the suit and I further came to a conclusion that the Lower Court failed to appreciate the evidence of

D.Ws.1 to 4 and came to a wrong conclusion and decreed the suit without considering the admissions in the evidence of plaintiff witnesses.

POINT NO.2:

18.In the result, the Appeal is allowed with costs by setting aside the decree and Judgment passed by the Trial Court in O.S.No.45/2008, dated 23-07-2012.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open Court, this the 2nd day of November, 2015.

Addl. Senior Civil Judge, Gajuwaka, (FAC) Principal Senior Civil Judge, Gajuwaka.

8

APPENDIX OF EVIDENCE: … NIL …

Addl. Senior Civil Judge, Gajuwaka, (FAC) Principal Senior Civil Judge, Gajuwaka.

9

Date of presentation:20-09-2012 Date of filing:18-07-2013

IN THE COURT OF THE SENIOR CIVIL JUDGE :: GAJUWAKA

Present : Sri A.Moses,

Additional Senior Civil Judge, Gajuwaka

(FAC) Senior Civil Judge, Gajuwaka

Monday , the Second day of November, 2015

A.S.No.18/2013

Between:

Dwarampudi Bhadram, S/o.Varahalu, Hindu, Aged 52 years, r/at.Near Government School, Appikonda Village, Kamsalavari Veedi, Vadlapudi R.H.Colony, Gajuwaka, Visakhapatnam.

...Appellant/Defendant

And:

Marukonda Appalachari, S/o.Appa Rao, Hindu, aged 50 years, r/at.D.No.18-7-18, Nadipudu R.H.Colony, Pedagantyada, Visakhapatnam.

...Respondent/Plaintiff

APPEAL FILED UNDER ORDER XLI RULE 1 R/W.SEC.96 OF THE CIVIL PROCEDURE CODE, 1908 AGAINST THE DECREE AND JUDGMENT IN O.S.NO.45/2008, DATED 23-07-2012 ON THE FILE OF THE JUNIOR CIVIL JUDGE, GAJUWAKA.

Between:

Marukonda Appalachari, S/o.Appa Rao, Hindu, aged 50 years, r/at.D.No.18-7-18, Nadipudu R.H.Colony, Pedagantyada, Visakhapatnam.

...Plaintiff

And:

Dwarampudi Bhadram, S/o.Varahalu, Hindu, Aged 52 years, r/at.Near Government School, Appikonda Village, Kamsalavari Veedi, Vadlapudi R.H.Colony, Gajuwaka, Visakhapatnam.

...Defendant

This is an appeal filed by the appellant/defendant against the

Judgment and Decree passed by the trial court by granting Permanent Injunction in

O.S.No.45/2008, dated 23-07-2012 on the file of Junior Civil Judge, Gajuwaka and

allow the same with costs.

Value of the appeal for the purpose of Court Fee and Jurisdiction Rs.10,000/- as valued in the Lower Court and a Court Fee of Rs.786/- is paid under Sec.26(c) and Sec.49 of APCF and SV Act. This appeal coming on 26-10-2015 for hearing in the presence of S/Sri V.Kodanda Ramaiah, P.Rama Rao (Ramu), Advocates on behalf of the 10 appellant/defendant and Sri M.Pattabhi Rama Rao, Advocate on behalf of the respondent/plaintiff and upon hearing and considering the material on record, the appeal is having stood over for consideration, this Court DOTH ORDER :

D E C R E E

1. that the appeal be and the same is hereby allowed;

2. that the Decree and Judgment passed by the Trial Court in

O.S.No.45/2008, dated 23-07-2012 is hereby set aside; and

3. that the respondent/plaintiff do pay to the appellant/defendant a sum of Rs.NIL towards costs of the appeal.

Given under my hand and seal of this Court, dated this the 2nd day of November, 2015.

Addl. Senior Civil Judge, Gajuwaka, (FAC)Principal Senior Civil Judge, Gajuwaka.

MEMORANDUM OF COSTS

APPELLANT:RESPONDENT:

Cost memo filed.

Rs.-Ps.

No costs memo filed. Stamp on Vakalat - 2 - 00

Advocate Fees(fixed) - 2,000 – 00 ----------------- costs certified - 2,002 – 00 -----------------

Addl. Senior Civil Judge, Gajuwaka, (FAC)Principal Senior Civil Judge, Gajuwaka.

1

I N THE COURT OF THE JUNIOR CIVIL JUDGE :: GAJUWAKA

Present: Sri A.Moses, M.A., B.L.,

Junior Civil Judge, Gajuwaka,

Wednesday, this the 21 st day of August, 2013

ORIGINAL SUIT NO.95/2010

Between:

Nakka Pydi Raju, Son of late Pydi Raju, Hindu, Aged 42 years, Employee,

Residing at Door No.21-32-9, Seethanagaram, Peda Gantyada RHC,

Visakhapatnam-44.

...Plaintiff

And:

Chittiboyina Ramu, Son of Appa Rao, Hindu, Aged 30 years, Resident of

Door No.18-36-34, Peda Korada, Peda Gantyada RHC, Visakhapatnam-44.

... Defendant

This suit coming on 25-07-2013 for final hearing before me in the presence of Sri V.Srinivasa Rao and Smt K.Sarvani, Advocates for plaintiff and Sri B.Prabhakara Rao and Sri D.Satya Varma, Advocates for

Defendant and having stood over till this day for consideration, this court delivered the following:

JUDGEMENT

This suit is filed for permanent injunction against the defendant, their men and agents from ever interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property and for costs of the suit.

2)The case of the plaintiff as per plaint allegations that the plaint schedule property was allotted to him by the then Special Grade Deputy

Collector, Land Acquisition, Steel Plant, Visakhapatnam who issued R-card bearing No.868 in his favour and plot No.2236 was allotted in his favour.

The Special Officer, Land Acquisition Steel Plant, Visakhapatnam issued proceedings dtd.12-12-1992 in his favour allotting the plaint schedule 2 property in Seethanagaram Village of Peda Gantyada R.H.colony. The

Special Deputy Collector, Land Acquisition Steel Plant, Visakhapatnam addressed a letter on 27-07-2007 to the MRO, Pedagantyada recommended to issue patta in his favour, the MRO, Pedagantyada issued patta to the plaintiff on 13-08-2007 inrespect of the plaint schedule property. Thus, the plaintiff is in possession and enjoyment since the date of allotment of the plot. While so, in the third week of March, 2010 the plaintiff is making marks for digging the pits for raising columns by removing the bushes for construction of the house, the defendant who is no way concerned or connected with the plaint schedule property of the plaintiff is unnecessarily interfered with his peaceful possession and enjoyment of plaintiff with a view to grab the same. Again on 29-03-2010 also the defendant along with his henchmen came to the property and attempted to trespass in to the same. Hence the suit.

3)The defendant filed his written statement and denied all the material allegations in the plaint. He submitted that he was recognized as displaced person under the Steel Plant Rehabilitation Scheme and issued

R-card bearing No.239. The Special Officer Land Acquisition granted 107 square yards plot at Peda Korada Village bearing plot No.2236 infavour of the defendant. As per the proceedings of the Special Officer, the surveyor

Land Acquisition, Steel Plant delivered the possession of plot NO.2236 and obtained acknowledgment from the defendant. Since then the defendant is in peaceful possession and enjoyment of the plaint schedule property without any interference. Subsequently, the MRO, Pedagantyada issued patta in his favour. While he was in possession and enjoyment of the schedule property, the GVMC demanded vacant tax and he paid the vacant tax for plot NO.2236 for the years 2007-08, 2008-09 and 2009-10. While things stood thus in the month of March 2010 he started construction in 3 the schedule property, the plaintiff without having any right, possession or title obstructed the digging for foundation which was commenced by the defendant. He also obtained the details with regard to plot NO.2236 under

Right to Information Act from the Special Grade Deputy Collector, the plaintiff is the resident of Seethanagaram whereas the defendant is the resident of Pedakorada village. The schedule property is situated at

Pedakorada village which is adjacent to the house of the defendant. The plaintiff is never in possession and enjoyment of the schedule property, the defendant is only in enjoyment of the schedule property. Hence, he prays to dismiss the suit with exemplary costs.

4) On perusal of the pleadings on either side documents filed the following issues are settled for trial:

1. Whether the plaintiff is entitled for permanent injunction s prayed for?

2. Whether the plaintiff is in possession and enjoyment of the

schedule property as on the date of filing of the suit?

3. Whether the suit is maintainable or not?

4. Whether the documents filed along with the suit are not valid?

5. Whether the plaintiff have no cause of action?

6. To what relief?

5)To prove the case of the plaintiff, Pws.1 to 4 are examined.

Exs.A.1 to A.3 are marked through PW.1, Exs.X.1 & 2 are marked through

Pw.3 and Ex.X.3 is marked through PW.4. The evidence of Pw.2 was eschewed. On the defendant side DWs.1 & 2 are examined and Exs.B.1 to

B.5 are marked.

4

6)On perusal of the issues settled by my Predecessor issues 1 and 2 are only relevant and issues 3 to 5 are inter related to issues 1 and 2 and that I intends to answer the issues 1, 2 and 6 only.

7)ISSUE Nos.1 & 2: The case of the plaintiff is that he is the absolute owner of the plaint schedule property in an extent of 107 square yards and the same was allotted to him vide plot No.2236 by the Special

Grade Deputy Collector, Land Acquisition, Steel Plant and photo R-card was also issued in his favour vide No.862. Subsequently on the recommendation of the Special Grade Deputy Collector, Land Acquisition,

Steel Plant, Visakhapatnam, the MRO, Pedagantyada granted a patta in his favour dtd.13-08-2007 inrespect of the plaint schedule property. Thus, he was in possession and enjoyment of the schedule property since the date of allotment of plot No.2236 in the year 1992. While so in the third week of

March, 2010 while he was making marking for digging pits for raising columns, the defendant and his henchmen tried to interfere with the possession and enjoyment and attempted to trespass into the plaint schedule property and thus he filed this suit.

8)The burden of proving these issues are on the plaintiff. The plaintiff was examined as PW.1 who reiterated his entire pleadings in his chief affidavit. He exhibited the following documents in his favour. Ex.A.1 is the original photo R-card No.868 issued in favour of the plaintiff, Ex.A.2 is the original patta issued by the MRO Pedagantyada infavour of the plaintiff, dtd.13-08-2007 and Ex.A.3 are the four photographs along with CD.

9)On the defendant side the defendant was examined as DW.1 and he reiterated his pleadings in his written statement as that of his chief affidavit and he exhibited the following documents on his behalf Ex.B.1 is the original R-card issued by the Steel Plant authorities infavour of the defendant, Ex.B.2 is the original patta issued by the MRO, Pedagantyada 5 infavour of the defendant, Ex.B.3 is the original vacant land tax receipt paid to GVMC, Ex.B.4 is the original tax pass book issued by GVMC and

Ex.B.5 is the original endorsement issued by Special Deputy Collector, Land

Acquisition, Steel Plant, Visakhapatnam.

10)DW.2 is the Superintendent in the office of the Special Grade

Deputy Collector, Steel Plant, Land Acquisition, Visakhapatnam. He deposed that he has not produced the record relating to R-card No.239.

According to him the R-card No.239 is not a genuine one. Ex.B.5 does not disclose the plot No.2236 is allotted to the plaintiff. Plot No.2236 is shown in the last sheet of register of plot allotted to the village of Chinna Korada.

As per the record the plaintiff was allotted a plot in the village of Chinna

Korda. The plaintiff is a resident of Seethanagaram vide R-card NO.868.

This is all the evidence on the defendant side.

11)On careful perusal of the evidence on either side the plaintiff and the defendant are claiming the plaint schedule property under plot

No.2236 and the plaint schedule and its boundaries are also claimed by the defendant. Ex.A.2 is the patta issued by the MRO, Pedagantyada infavour of the plaintiff, dtd.13-08-2007. Similarly, Ex.B.2 patta was also issued by the MRO, Pedagantyad, dtd.10-01-2003 infavour of the defendant for plot

No.2236 at Pedakorada, R.H.colony for R-card No.239. Thus, the property claimed by the plaintiff and the defendant are one and the same. Both the parties are alleging that the pattas and the R-card issued infavour of the plaintiff and the defendant are not genuine one. Thus, the title of the plaintiff is in question. In such a situation, the plaintiff ought to have file a suit for declaration of his title, but the plaintiff only filed the suit for bare permanent injunction. The plaintiff has to prove that he was in possession and enjoyment of the suit schedule property as on the date of the suit is the law. The plaintiff has not filed any document except Ex.A.3 four 6 photographs to prove his possession over the schedule property. On perusal of the Ex.A.3 it cannot be decided that the plaintiff is in possession and enjoyment of the suit schedule property and the identity of the property on the basis of Ex.A.3 is very very difficult. Ex.A.2 was issued on 13-08-2007, Ex.B.2 was issued on 10-01-2003, thus the patta issued infavour of the defendant under Ex.B.2 is earlier than the patta issued infavour of plaintiff under Ex.A.2. The contention of the plaintiff is that the

R-cards were issued only to the major persons whose lands acquired in the family. PW.1 in his cross examination admitted that he was a minor in the year 1992. In such a case issuance of R-card as admitted by the plaintiff in his cross examination is bad under law. Similarly, the defendant is also a minor as on the date of issuance of R-card in his favour.

12)DW.1 deposed that he was issued R-card in the year 1990 and as on that date he is also a minor. Thus, the R-card issued infavour of the plaintiff and defendant are not in accordance with the law as admitted by both the parties.

13)PW.3 in his cross examination admitted that R-card will be issued only to the major married sons and the persons are minors they are not eligible to issued R-cards that only major sons are eligible for R-cards.

The plaintiff and defendant are minors as on the date of issuance of respective R-cards. PW.4 is also an official witness deposed that plot

No.2236 in R-card No.868 was issued in the name of N.Pydiraju, Son of late

Pydi Raju who is the plaintiff herein. PWs.3 & 4 are officials when it came to light that the plaintiff and the defendant are minors and R-cards was issued by mistake or otherwise their R-cards has to be cancelled immediately they came to know the fact, but PW.4 did not choose to take any steps for cancellation of R-cards infavour of the plaintiff and defendant. PW.3 was again examined as DW.2 to produce certain documents and to give 7 evidence. He admitted that Ex.B.5 does not disclose the plot No.2236 was allotted to the plaintiff.

14)The defendant herein filed an application before the Special

Grade Deputy Collector, Steel Plant, Visakhapatnam under Right to

Information Act to furnish the details of plot No.2236 in Sector-II of Peda

Korada village in survey No.36, to which the office replies that plot No.2236 records are not available. As on 06-10-2012 surprisingly the same office produced the record relating to the plot No.2236 through Pw.3. He admitted with regard to Ex.B.5, thus a serious doubt arises with regard to issuance of patta infavour of the plaintiff and the R-card vide No.868.

However, the suit is only for bare permanent injunction, the title of the plaintiff is irrelevant and the court has to see whether the plaintiff is in possession and enjoyment as on the date of the suit and to prove that aspect. The plaintiff failed to produce any document except Ex.A.3 photographs. On perusal of the photographs one cannot decide the possession of any individual. On the other hand the defendant exhibited

Exs.B.3 and 4 vacant land tax receipts and the tax pass book issued by the

GVMC infavour of the defendant for plot NO.2236. The defendant paid the vacant tax till 2009-10 as per the recitals in Ex.B.4. Ex.B.4 was issued for plot No.2236. The plaintiff is contending that he was allotted the plot

No.2236 in the year 1992 as he has been in possession and enjoyment of the same till date of filing of the suit, but he failed to produce any document to prove his case.

15)In view of the fore going reasons I came to a conclusion that the plaintiff is not in possession and enjoyment of the plaint schedule property as on the date of the suit and that he has not entitled for a permanent injunction against the defendant. Thus, these issues are held infavour of the defendant and against the plaintiff.

8

16)ISSUE NO.6: In the result, the suit is dismissed with costs.

Dictated to Personal Assistant, transcribed by her, corrected and

pronounced by in the open court, this the 21 st day of August, 2013.

Sd/-A.Moses

JUNIOR CIVIL JUDGE,

GAJUWAKA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:For Defendant:

P.W.1: Nakka Pydi RajuD.W.1: Chittiboina Ramudu P.W.2: S.Thammayya (Eschewed)D.W.2: S.Sidaiah P.W.3: S.Siddayya P.W.4: V.Srinivasa Rao

NO. OF DOCUMENTS MARKED

For Plaintiff:

Ex.A.1/NilOriginal photo R-card No.868 issued infavour of plaintiff. Ex.A.2/13-08-2007Original patta issued by the MRO, Pedagantyada infvour of the plaintiff. Ex.A.3/NilFour photographs along with CD.

X SERIES MARKED THROUGH PWs.3 & 4: Ex.X.1/NIlAttested copy of R-card identity card register pertaining to R-cards from No.858 to 892 of Nakka Pydiraju, R-card No.868. Ex.X.2/NilAttested copy of plot register pertaining to plot number from 370 to 2236 of Chinna Korada, Pedagantyada R.H.C. Ex.X.3/13-08-2007Attested copy of patta issuance register in Sl.No.18/2007, dtd.13-08-2007. For Defendant: Ex.B.1/NilOriginal R-card issued by Steel Plant authorities. Ex.B.2/NilOriginal patta issued by MRO. Ex.B.3/NilOriginal vacant land tax receipt paid to GVMC. Ex.B.4/NilOriginal tax pass book issued by GVMC. Ex.B.5NilOriginal endorsement issued by Special Deputy Collector.

Sd/-A.Moses

JCJ/GWK.

9

Date of Presentation: 31-03-2010 Date of Filing: 31-03-2010

I N THE COURT OF THE JUNIOR CIVIL JUDGE :: GAJUWAKA

Present: Sri A.Moses, M.A., B.L.,

Junior Civil Judge, Gajuwaka,

Wednesday, this the 21 st day of August, 2013

ORIGINAL SUIT NO.95/2010

Between:

Nakka Pydi Raju, Son of late Pydi Raju, Hindu, Aged 42 years, Employee,

Residing at Door No.21-32-9, Seethanagaram, Peda Gantyada RHC,

Visakhapatnam-44.

...Plaintiff

And:

Chittiboyina Ramu, Son of Appa Rao, Hindu, Aged 30 years, Resident of

Door No.18-36-34, Peda Korada, Peda Gantyada RHC, Visakhapatnam-44.

... Defendant

This suit is filed for permanent injunction against the defendant, their men and agents from ever interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property and for costs of the suit.

Value of the suit for the purpose of court fee and jurisdiction is

Rs.10,000-00and a court fee of Rs786-00 is paid thereon under

Section 26(c) of A.P.C.F and S.V.Act.

This suit coming on 25-07-2013 for final hearing before me in the presence of Sri V.Srinivasa Rao and Smt K.Sarvani, Advocates for plaintiff and Sri B.Prabhakara Rao and Sri D.Satya Varma, Advocates for

Defendant and having stood over till this day for consideration, this court doth the order; 10

D E C R E E

1. that the suit be and the same is hereby by is dismissed; and

2. that the plaintiff do pay the defendant a sum of

Rs.- Nil - towards costs of the suit.

(A copy of plaint schedule is hereto attached)

Given under my hand and the seal of the court, this the 21st day of August, 2013.

JUNIOR CIVIL JUDGE,

GAJUWAKA.

MEMORANDUM OF COSTS

For Plaintiff: For Defendant:

Stamp on vakalat :Rs. 2-00No cost memo is filed

Stamp on plaint :Rs. 786-00

Process charges:Rs. 159-00 ---------------- Costs certified :Rs. 947-00 ----------------

JCJ/GWK.

1

FAIR

IN THE COURT OF THE JUNIOR CIVIL JUDGE :: GAJUWAKA

Present: Sri A.Moses, M.A., B.L.,

Junior Civil Judge, Gajuwaka,

Wednesday, this the 31 st day of July, 2013.

EA.NO.299/2012 IN EP.1/2008 IN OS.451/2004

Between:

Kalam Ademma, Wife of late Narasaiah, Hindu, Aged 70 years, Residing at

Door NO.9-127, R.H.Colony, Aganampudi, Pedamadaka Post, Gajuwaka

Mandal, Visakhapatnam-46.

….Petitioner/Claimant

And:

1. Jagula Appalakonda (died).

2. Jerripothula Demudamma, Wife of Chinna Rao, Hindu, Aged 40 years,

Residing at Attavanipalem, Pedamadaka Post, Aganampudi,

Visakhapatnam-46.

3. Marisa Appalakonda, Wife of Appa Rao, Hindu, Aged about 45 years,

Residing at Yedumetla Marripalem, Paravada Mandal,

Visakhapatnam.

4. Jagula Pydithalli, Wife of late Appalakonda, Hindu, Aged about 65 years, Residing at Attavanipalem, Pedamadaka Post, Aganampudi,

Visakhapatnam.

5. Kalam Arjuna Rao, Son of late Narasaiah,, Hindu, Aged about 40 years, Residing at Door NO.9-126, Aganampudi, Sector-II,

Pedamadaka Post, Vadlapudi, Visakhapatnam.

6. Kalam Appa Rao, Son of late Narasaiah, Hindu, Aged about 55 years,

Residing at Door NO.9-127, Aganampudi, Sector-II, Pedamadaka

Post, Vadlapudi, Visakhapatnam.

... Respondents

This Petition coming on 18-07-2013 for final hearing before me in the presence of Sri M.Shyam Babu, Advocate for Claim Petitioner and Sri A.Venkateswar Rao, Advocate for Respondents and having stood over till this day for consideration, this court delivered the following:

2

O R D E R

This petition is filed under Order 21, Rule 58 of CPC to adjudicate the claim of the petitioner to set aside the attachment order made in EP.1/2008 in OS.451/2004 and consequently to stop the sale proceedings initiated by the respondents/D.Hrs 2 to 4 against the petition schedule property and for costs of this petition.

2)To prove the contents in the petition are that the petitioner/claimant is the absolute owner of the property therein bearing door No.9-127 situated at R.H.Colony, Aganampudi, Visakhapatnam, which is the petition schedule property herein. Originally the petition schedule property is a vacant site in an extent of 107 square yards bearing plot

NO.508 of Aganampudi, R.H.Colony, Pedamadaka, Visakhapatnam was allotted to the husband of the petitioner Kalam Narasaiah under rehabilitation scheme by then Tahsildar, Gajuwaka vide his proceedings dtd.25-08-1987. Later on, the husband of the petitioner constructed a RCC slabed house therein, which was assessed to property tax and allotted door No.9-127 in the name of the petitioner's husband and he has been in possession and enjoyment of the same during his life time. During the life time of her husband he executed a Will dtd.05-05-1994 bequeathing the schedule mentioned property infavour of the petitioner with absolute rights. On 13-07-1994 the testator Narasayya died leaving behind the respondents 5 and 6 and this petitioner. Thus, the petitioner became the absolute owner of the schedule property and her name was also mutated in the municipal records and property tax is being paid by the petitioner in her name. While things stood thus, recently one of the relative of the petitioner has informed her that auction notice was published in Eenadu city edition dtd.31-08-2012 with regard to her property bearing plot

NO.508 which is going to be auctioned on 13-09-2012 before the Junior 3

Civil Judge, Gajuwaka. Immediately, she contacted an Advocate and came

to know that the suit was filed against the respondent 5 and 6 herein for the recovery of the amount and the suit was decreed infavour of the 1st respondent/D.Hr and later the respondents 2 to 4 filed this EP for auction of the schedule property. Since the property is devolved on the petitioner by way of Will dtd.05-05-1994, the respondents 5 & 6 are no way concern had any right over the property. Hence he prays to allow the petition by setting aside the attachment order in EP.1/2000 on the file of this court.

3)The respondents 2 to 4 filed their counter and submitted that the Will dtd.05-05-1994 is created for the purpose of this petition. They further submitted that on 15-10-1999 in OS.285/99 on the file of Principal

Junior Civil Judge, Anakapalli by the deceased Lagula Appalakonda filed the same for the recovery of the amount on the basis of pronote dtd.15-10-1996 and also filed IA.1408/99 seeking attachment before judgment of plot Nos.508 and 509 under door number 9-126 and 9-127 and the said petition was allowed and made absolute. Later, the suit was transferred to Junior Civil Judge's Court, Gajuwaka and was renumbered as 451/2004 and the suit was decreed on 06-03-2006, all the above details are known to the respondents 5 to 6 having fully aware about the attachment before judgment, the 5th respondent herein might have sold away the property covered against the door NO.9-126 to the present petitioner herein with a sole aim of evading the payment due under the decree passed in OS.451/2004. The present petition is brought in existence in collusion with respondents 5 & 6 thereby created the alleged

Will, dtd.15-05-1994. The respondents further admitted that the property shown under the Will and the property came for sale under EP/1/2008 are not one and the same and hence the petitioner is not entitled to any relief, hence prays to dismiss the petition.

4

4)To prove the case of the petitioner P.Ws.1 to 3 were examined and Exs.P.1 to P.11 are marked. On the respondents side none were examined and no documents were marked.

5)Now the point for consideration is

Whether the petitioner/claimant had any right in the EP

schedule property under Order 21, Rule 58 CPC?

6)POINT: It is the case of the petitioner that she is the absolute owner of property bearing door NO.9-127 situated at R.H.Colony,

Aganampudi, Visakhapatnam in an extent of 107 square yards bearing plot

No.508 of Aganampudi. The petition schedule property was devolved on the petitioner on a Will, 05-05-1994 executed by her husband in her favour bequeathing the schedule property. During the life time of her husband he paid the taxes to the municipality and after his death she has been paying the taxes to the municipal corporation and her name was also mutated in the municipal records. After came to know the notice of auction in Eenadu dtd.31-08-2012 she contacted her counsel and filed this petition as she is having a right over the schedule property plot NO.508 covered by door

No.9-127.

7)The petitioner was examined as PW.1 and reiterated the contents in her petition as that of her chief affidavit. The following documents are marked through PW.1. Ex.P.1 is the original proceedings of the Tahsildar, Gajuwaka for allotment of the house site bearing plot

NO.508 infvour of Kalam Narasaiah, dtd.28-05-1987, Ex.P.2 is the original death certificate of Kalam Narasaiah, dtd.10-07-1999, Ex.P.3 is the original demand notice, dtd.21-06-2012, Ex.P.4 is the original property tax pass book, Ex.P.5 is the xerox copy of voter ID card of the petitioner (compared with original), Ex.P.6 is the Will, dtd.05-05-1994 infavour of the petitioner,

Ex.P.7 is the five property tax receipts issued by Aganampudi Panchayat,

Ex.P.8 is the original special notice issued by the GVMC, Visakhapatnam, 5 12-07-2007, Ex.P.9 is the original property demand notice issued by GVMC,

Visakhapatnam, dtd.28-10-2012, Ex.P.10 is the Original Encumbrance certificate, dtd.210-2012 and Ex.P.11 is the original property demand notice issued by GVMC, Visakhapatnam, dtd.19-07-2007. These are all the documents relied by the petitioner.

8)On careful perusal of the oral and documentary evidence on the petitioner side and the contents in the EP.1/2008 wherein the schedule of the EP petition schedule is plot Nos.508 and 509 for an extent of 107 square yards of Aganampudi, Pedamadaka Post, R.H.Colony-II. There is no mention of the door number for plot Nos.508 and 509 in the EP schedule.

Similarly, there is no mention in the auction notice published in the Eenadu daily with regard to the door number. The petitioner is asserting her right as Ex.P.6 Will. Wherein plot NO.508 in R.H.Colony, Pedamadaka village is bequeathing infavour of the petitioner by her husband which was marked as Ex.P.6. Ex.P.1 is the original proceedings issued by the Tahsildar,

Gajuwaka. Wherein plot NO.508 in an extent of 107 square yards was allotted infavour of the husband of the plaintiff Narasayya does not know how D.Hrs 2 to 4 are added plot No.509 in the EP schedule. Though PW.1 was cross examined nothing was elicited from her to disbelieve the evidence except suggesting the Will is fabricated one in conclusion with respondents 5 and 6.

9)PW.2 is the 2nd attestor of Ex.P.6 deposed that he attested

Ex.P.6 in the presence of another attestor and in the presence of the testator and in the presence of the scribe, nothing was elicited in the cross examination of PW.2 to disbelieve his evidence. PW.3 is the scribe of Ex.P.6 who deposed that on the instructions of K.Narasaiah he drafted Ex.P.6 and in his presence the said Narasaiah marked his thumb impression on

Ex.P.6 in the presence of attestor, PW.2 and another. PW.2 and another attested Ex.P.6 in the presence of the testator nothing was also elicited in 6 the cross examination of PW.3 to disbelieve his evidence. In the cross examination Pws.1 to 3 nothing was elicited to create a doubt in the evidence of Pws.1 to 3 with regard to the execution of Ex.P.6. It is an admitted fact that the respondents 5 and 6 are the sons of PW.1. It is further admitted that a money decree was passed against the respondents 5 & 6 and it is further admitted that in IA.1408/99 in OS.285/99 on the file of Principal Junior Civil Judge, Anakapalle attachment before judgment was order and the same was made absolute with regard to the EP petition schedule.

10)The petitioner is claiming plot NO.508 in door No.9-127. The respondents 1 to 4 no where given the door number of the property attached in IA.1408/99 and also they failed to give door number in the auction notice published in Eenadu daily. Thus, the property in plot NO.509 the owner ship was not clearly established by the respondents 1 to 4. On the other hand plot No.508 in door No.9-127 is infavour of the petitioner as per Exs.P.6 and P.1. Ex.P.4 is tax pass book for door number 9-127 infavour of the petitioner. All the tax receipts and demand notices are infavour of the petitioner.

11)In view of the fore going reasons and on careful perusal of the documentary evidence of Exs.P.1 to P.11 clearly established the title of the petitioner over the petition schedule property and the same was devolved on her under Ex.P.6 Will and the Exs.P.7 to P.11 clinchingly proved that the petitioner is in possession and enjoyment of the schedule property. The respondents 1 to 4 failed to prove that plot NO.509 is belongs to respondents 5 and 6 and further he also failed to prove plot NO.508 is belongs to respondents 5 and 6 situated in door No.9-127.

12)In view of the above reasons as the title of the petitioner is well established under Exs.P.1 and P.6 and the possession of the property is also established under Exs.P.7 to P.11 and I am of the opinion that the 7 petitioner/claimant is the absolute owner of the petition schedule property and she is entitled for adjudicating under Order 21, Rule 58 of CPC.

13)In the result, the petition is allowed adjudicating that the petitioner is the absolute owner of the petition schedule property situated in door NO.9-127 in plot NO.508 and further the attachment Order in

IA.1408/99 in OS.285/99 on the file of Principal Junior Civil Judge,

Anakapalle and the attachment order in EP.1/2008 are hereby set aside and consequently the sale proceedings initiated by the respondents 2 to 4 against door NO.9-127 in plot No.508 are stopped.

Dictated to Personal Assistant, transcribed by her, corrected and

pronounced by me in the open court this the 31 st day of July, 2013.

JUNIOR CIVIL JUDGE,

GAJUWAKA.

Appendix of Evidence Witnesses Examined

For Claim Petitioner : For Respondents:

P.W.1:Kalam AdemmaNone

P.W.2: I.Ramudamma @ Ramulamma

P.W.3: Vailada Xemullu

No. of documents marked.

For Claim Petitioner :

Ex.P.1/28-05-1987Original proceedings of the Tahsildar, Gajuwaka for allotment of the house site bearing plot NO.508 infvour of Kalam Narasaiah.

Ex.P.2//10-07-1999Original death certificate of Kalam Narasaiah.

Ex.P.3/21-06-2012Original demand notice.

Ex.P.4/NilOriginal property tax pass book.

Ex.P.5/NilXerox copy of voter ID card of the petitioner (compared with original).

Ex.P.6/05-05-1994Will infavour of the petitioner.

Ex.P.7/NilFive property tax receipts issued by Aganampudi Panchayat.

8

Ex.P.8/12-07-2007Original special notice issued by the GVMC, Visakhapatnam.

Ex.P.9/28-1-2012Original property demand notice issued by GVMC, Visakhapatnam.

Ex.P.10/2-10-2012Original Encumbrance certificate.

Ex.P.11/19-07-2007Original property demand notice issued by GVMC, Visakhapatnam.

For Respondents: - NIL -

JCJ/GWK.

9

Date of Presentation: 10-09-2012 Date of Filing: 10-09-2012

IN THE COURT OF THE JUNIOR CIVIL JUDGE :: GAJUWAKA

Present: Sri A.Moses, M.A., B.L.,

Junior Civil Judge, Gajuwaka,

Wednesday, this the 31 st day of July, 2013.

EA.NO.299/2012 IN EP.1/2008 IN OS.451/2004

Between:

Kalam Ademma, Wife of late Narasaiah, Hindu, Aged 70 years, Residing at

Door NO.9-127, R.H.Colony, Aganampudi, Pedamadaka Post, Gajuwaka

Mandal, Visakhapatnam-46.

….Petitioner/Claimant

And:

1. Jagula Appalakonda (died).

2. Jerripothula Demudamma, Wife of Chinna Rao, Hindu, Aged 40 years,

Residing at Attavanipalem, Pedamadaka Post, Aganampudi,

Visakhapatnam-46.

3. Marisa Appalakonda, Wife of Appa Rao, Hindu, Aged about 45 years,

Residing at Yedumetla Marripalem, Paravada Mandal,

Visakhapatnam.

4. Jagula Pydithalli, Wife of late Appalakonda, Hindu, Aged about 65 years, Residing at Attavanipalem, Pedamadaka Post, Aganampudi,

Visakhapatnam.

5. Kalam Arjuna Rao, Son of late Narasaiah,, Hindu, Aged about 40 years, Residing at Door NO.9-126, Aganampudi, Sector-II,

Pedamadaka Post, Vadlapudi, Visakhapatnam.

6. Kalam Appa Rao, Son of late Narasaiah, Hindu, Aged about 55 years,

Residing at Door NO.9-127, Aganampudi, Sector-II, Pedamadaka

Post, Vadlapudi, Visakhapatnam.

... Respondents

This petition is filed under Order 21, Rule 58 of CPC to adjudicate the claim of the petitioner to set aside the attachment order made in EP.1/2008 in OS.451/2004 and consequently to stop the sale proceedings initiated by the respondents/D.Hrs 2 to 4 against the petition schedule property and for costs of this petition.

10

A fixed court fee of Rs.1-00 is affixed on petition.

This Petition coming on 18-07-2013 for final hearing before me in the presence of Sri M.Shyam Babu, Advocate for Claim Petitioner and Sri A.Venkateswar Rao, Advocate for Respondents and having stood over till this day for consideration, this court doth the order;

DECREETAL ORDER

1. that the petition be and the same is hereby is allowed;

2. Adjudicating that the petitioner is the absolute owner of the petition schedule property situated in Door No.9-127 in plot

No.508;

3. that the attachment Order in IA.1408/99 in OS.285/99 on the file of Principal Junior Civil Judge, Anakapalle Renumbered as

OS.451/2004 on the file of this court that the attachment order

in EP.1/2008 are hereby set-aside and consequently the sale proceedings initiated by the Respondents 2 to 4 against door

NO.9-127 in plot No.508 are stopped; and

4. that there be no order as to costs.

Given under my hand and the seal of the court, this the 31st day of July, 2013.

JUNIOR CIVIL JUDGE,

GAJUWAKA.

MEMORANDUM OF COSTS

No cost memo is filed on either side

JCJ/GWK