IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, KURNOOL
Present:- Smt.A. Padma,
Principal Junior Civil Judge, Kurnool
FRIDAY, THE 16th DAY OF APRIL, 2021
Original Suit No.103/2013
Between:
Late G.Galenna, S/o.Late G.Laxmanna, died, Rep.by L.Rs.
1. G.Venkateswarlu, S/o.Late G.Galenna, Aged 40 years, Hindu, Hamali, R/o.Plot No.280-B, The Kurnool District IV Class Employees Co-Operative House Building Society, Kurnool, Ganesh Nagar-II, Kurnool,
2. G.Ramudu, S/o.Late G. Galenna, Aged 40 years, Hindu, Hamali,
3. G.Laxmanna, S/o.Late G. Galenna, Aged 40 years, Hindu, Gunda,
4. G.Tharakesh, S/o.Late G. Galenna, Aged 40 years, Hindu, Gunda,
5. G.Bojjamma, W/o.Maddaiah, Aged 43 years, Hindu,
6. G.Savithri, D/o.Late G. Galenna, Aged 34 years,
7. G.Lakshamma, W/o.Late G. Galenna, Aged 67 years, Hindu, (Plaintiffs 2 to 7 are residents of D.No.48/169, Budhawarapeta, Kurnool).. . . Plaintiffs
-And-
1. M. Ravi Kumar Reddy, S/o.M.Damodhar Reddy, Aged 29 years, Hindu, R/o.4/194-2, Gollageri, Kodumur Village and Mandal, Kurnool District,
2. Shameem Begum, W/o.Shaik Ahmed Sardar, Aged 45 years, Muslim, House Wife, R/o.D.No.5/104, Osmania College Road, Kurnool,
3. C. Mohammed Sardar, S/o.Sardar Ahmed, Muslim, Aged 55 years, R/o.D.No.5/104-B, Lateef Laubali Dargah, Kurnool, 2
4. C. Fatima Farhan, D/o.C. Mohamed Sardar, Minor, aged 18 years, rep.by her next friend Father and natural guardian Mohammed Sardar,
5. Shaik Moinuddin Sardar, S/o.C. Mohamed Sardar, Minor, aged 16 years, rep.by her next friend Father and natural guardian Mohammed Sardar.. . . Defendants (Amended as per orders dt.16-10-2020, I.A.No.964/2020 in O.S.No.103/2013) Defendants 3 to 5 added.
This suit coming on 12-04-2021 before me for final hearing in the presence of Sri.K.Kapileswaraiah and Sri.K.Lokeswaraiah, Advocates for plaintiffs and of Sri.D.Yella Reddy, Advocate defendant No.1, D2 died and of Sri.S.T.Ali Khan, Advocate for defendant Nos.3 to 5 and after having stood over for consideration till this day, this Court delivered the following:
:: J U D G M E N T ::
This suit is filed for permanent injunction against D1, his men, agents, successors or anybody on their behalf from trespassing into the plaint schedule plot bearing No.280-B or by any way interfering with the peaceful physical possession and enjoyment of the plaintiff over the plaint schedule plot and for costs.
2.Brief facts of the plaint are as follows:
The first plaintiff's father by name G.Galenna was the retired
IV Class Employee and was a member of Kurnool District Government IV
Class Employees Co-operative House Building Society with G.No.718-A.
The first plaintiff's father paid Rs.15/- towards membership fee and
Rs.1,300/- towards site value through Co-operative Central Bank. Then, the President of Kurnool District Government IV Class Employees
Co-operative House Building Society allotted a plot bearing No.280-B to the first plaintiff's father and also issued an allotment certificate in favour of the first plaintiff's father on 01-01-2001, right from the date of allotment, the first plaintiff's father was in possession and enjoyment of the plot by constructing a hut. The President Kurnool District
Government IV Class Employees Co-operative House Building Society postponed the registration of plot whenever the father of the first plaintiff demanded in that regard. Later, the father of the first plaintiff died in the year 2009, the first plaintiff is residing along with his family in the hut situated in plot No.280-B since the date of death of his father.
3
a)While things stood thus, on 01-03-2012 the first defendant and his supporters came to the plaint schedule plot and picked up quarrel with the first plaintiff stating that the first defendant purchased the plaint schedule plot, the first defendant and his supporters tried to pull down the hut of the first plaintiff. The first defendant was not having any right to dispossess the first plaintiff from the plaint schedule plot. The plaintiff and his brother so also one G.Ramesh,
S/o.G.Nagalakshmamma were present at the time of above quarrel and prevented the high handedness of the first defendant and his supporters. Since there is imminent danger from the first defendant who is making attempts to pull down the hut of the plaintiff situated in the plaint schedule plot, the plaintiff approached the court for permanent injunction against the first defendant and his men as prayed for in the plaint.
3.The first defendant filed his written statement denying the averments of the plaint. The first defendant contended in his written statement as follows:
The plaintiff suppressed the real facts in the present suit and that one D.Rajamma, W/o.Late Kondaiah was an employee in
Government General Hospital, Kurnool and she was the member of
Kurnool District Government IV Class Employees Co-operative House
Building Society Limited P.No.1155, Kurnool and her G.Number is 718A.
The President of Kurnool District Government IV Class Employees
Co-operative House Building Society namely Narayana has allotted the plot bearing No.280B to said D.Rajamma, W/o.Late Kondaiah.
Subsequently, said Rajamma gave her consent to register a sale deed in respect of plot No.280B in favour of the first defendant since she sold the plot to the first defendant for a sum of Rs.80,000/-. On her representation and request, the then President Kurnool District
Government IV Class Employees Co-operative House Building Society
Limited, Kurnool has executed a Registered Sale Deed on 13-03-2007 in favour of the first defendant. The first defendant has been in possession and enjoyment of the said plot. Subsequently, the first defendant sold the said plot to one Shameem Begum (second defendant) under a registered sale deed dt.01-01-2010 for a valuable consideration of 4
Rs.2,00,000/-. On the same day, the first defendant has delivered the possession of said plot to Shameem Begum. Since the date of sale i.e., 01-01-2010 the plot is an open side and there was no hut in the site.
a)The vendee of the first defendant namely Shameem Begum has also filed a suit in O.S.No.144/2013 on the file of II Additional Junior
Civil Judge, Kurnool against the defendants 1, 5 and 6 for permanent
injunction restraining them from interfering the peaceful possession and enjoyment of the plaint schedule property.
b)The plaintiff in collusion with the President Kurnool District
Government IV Class Employees Co-operative House Building Society,
Kurnool has fabricated and created documents and now falsely claiming the plaint schedule property. The alleged allotment certificate of plot
No.280B in favour of father of the first plaintiff on 01-01-2001 is a creative document. Said document cannot create any right in favour of said Galenna so also in favour of the plaintiff after the death of said
Galenna over the plaint schedule plot.
c)It is finally contended in the written statement of D1 that D1 has already sold the plaint schedule property to one Shameem Begum and delivered possession of the plaint schedule property to said
Shameem Begum and since then the defendant has nothing to do with the plaint schedule property and as such the question of attempt of defendant No.1 to pull down the alleged hut on 01-03-2013 with his supporters does not arise and that the defendant never went to the plaint schedule property on 01-03-2013 and never tried to pull down the alleged hut and the vendee Shameem Begum is a necessary party to this suit. Hence, the defendant No.1 prayed the court to dismiss the suit with exemplary costs.
4.The subsequent purchaser got herself impleaded in the suit as D2. Defendant No.2 filed her written statement denying all the allegations in the plaint as false, she further contended as follows:
The Kurnool District Government IV Class Employees
Co-operative House Building Society Limited, Kurnool was the original owner of the plaint schedule property. The society admitted one
D.Rajamma, W/o.D.Kondaiah, an employee in Government General
Hospital, Kurnool at 08-03-2007 under G.No.718-A and the society 5 allotted house plot bearing No.280-B to the said Rajamma.
Subsequently, said Rajamma sold the said plot bearing No.280-B to the first defendant with her free consent. On her representation and request, the President Kurnool District Government IV Class Employees
Co-operative House Building Society, Kurnool has executed a registered sale deed on 13-03-2007 in favour of defendant No.1 in respect of plot
No.280-B. Since the date of purchase, defendant No.1 was in possession and enjoyment of the said plot.
a)The first defendant in turn sold the house plot to this defendant under a registered sale deed dt.01-01-2010 for valuable consideration and delivered possession of the same to her on the same day. Since the date of sale, this defendant has been in possession and enjoyment of the plaint schedule plot bearing No.280-B. Since, the date of purchasing the plot by this defendant she has been in possession and enjoyment of the same. The plaint schedule plot is an open site and no hut was in existence at any time.
b)This defendant prior to her purchase applied for certified copy of Encumbrance, in respect of the plaint schedule plot from 01-10-2007 to 26-12-2009 from the registration Department, Kurnool
This defendant erected a slab in the corner of the plaint schedule house engraving her name with the house plot number as public notice that the plaint schedule plot belongs to this defendant. On 24-12-2012, this defendant made an application to the Kurnool Municipal Corporation,
Kurnool for permission to construct a residential building in her house plot bearing No.280-B. After physical verification and after following the procedure and statutory requirements, including verification of her title deeds and her possession and after collecting of all varieties of feeses like vacant land tax, drainage charges and all other charges to an extent of Rs.28,000/-, the Commissioner, Kurnool Municipal Corporation,
Kurnool permitted this defendant to construct residential building in the plaint schedule plot on 05-01-1013. This defendant started to construct the residential building in the plot with the help of the younger brother of her husband by name Saleem Sardar and the husband of her younger sister when they started the construction work, the plaintiffs 2, 5 and 6 along with their henchmen came and prevented the defendant from carrying on the construction work and gave report to III Town Police 6
Station. On the advise of III Town Police to approach the court and settle the dispute, the second defendant took some time to approach the court in the meanwhile the plaintiffs who are seasoned litigants approached the court and filed this suit. On 14-03-2013 this defendant filed
O.S.No.144/2013 against the plaintiff Nos.2, 4 and 5 and obtained
injunction orders in I.A.No.127/2013 against the defendants therein.
(c)The plaintiffs herein filed the present suit for bare injunction without seeking declaration of title and as such this suit is not maintainable. There are no merits and bonafides in the suit and as such it is liable to be dismissed in limini.
5.Basing on the pleadings of both the parties, the court framed the following issues:-
1. Whether Shameem Begum is a necessary party to the suit?
2. Whether the suit for bare injunction without seeking declaration of title over the plaint schedule property is maintainable?
3. Whether the plaintiff is entitled to permanent injunction as prayed for?
4. To what relief?
Additional issues dt.28-08-2018:
1. Whether the second defendant is in possession and enjoyment of the plaint schedule property?
2. Whether the plaintiff is entitled to permanent injunction against the second defendant as prayed for?
3. To what relief
6.Heard all the parties. All the parties filed written arguments.
7.In support of their contention the plaintiffs got examined the first plaintiff as PW1, the witness for the alleged attempt of the first defendant to dispossess the plaintiffs was examined as PW2, the
President and former President of Kurnool District Government IV Class
Employees Co-operative House Building Society were examined as
PWs.3 and 4 respectively. The defendants got examined the first defendant as DW1, second defendant as DW2, the Town Planning Officer as DW4 and the persons knowing the facts of the suit as DWs.3 & 5 on their behalf. The plaintiff got marked Exs.A1 to A4 original allotment 7 certificate dt.01-01-2001, certified copy of Dip Register, certified copy of
Registered Sale Deed dt.24-01-2007 executed in favour of D.Kondaiah and certified copy of Registered Sale Deed dt.11-12-2006 executed in favour of B.Kantha Rao on their behalf. The defendants got marked certified copy of sale deed dt.13-03-2007 executed in favour of first defendant by the President of Kurnool District Government IV Class
Employees Co-operative House Building Society as Ex.B1, certified copy of Sale Deed dt.01-01-2010 executed in favour of second defendant by the first defendant as Ex.B2, the plot allotment certificate issued to
Rajamma by the President Kurnool District Government IV Class
Employees Co-operative House Building Society as Ex.B3, certified copy of Encumbrance certificate dt.26-12-2009 as Ex.B4, Building Permit issued by Registration and Stamp Department relating to the suit schedule house plot from 01-10-2007 to 25-12-2009 as Ex.B4, Building
Permit issued by the Commissioner Kurnool Municipal Corporation permitting the second defendant to construct residential house as Ex.B5, certified copy of Blue print plan submitted by the second defendant to the Kurnool Municipal Corporation as Ex.B6 and Encumbrance
Certificate, dt.07-12-2020 issued in favour of second defendant as
Ex.B7. The Advocate Commissioner was examined as CW1,
Commissioner's Report and Returned Postal cover addressed to the first defendant were marked through the Advocate Commissioner as Exs.C1 and C2.
Issue No.1:
8.Shameem Begum i.e., D2 vendee of D1 filed a petition to implead her in the present suit as second defendant and petition was allowed during pendency of the suit, she was impleaded as second defendant in the present suit. Hence, this issue need not be discussed elaborately to decide whether Shammem Begum is a necessary party for the disposal of this suit. Hence, this issue is decided accordingly.
Issue No.3 and Issues No.1 & 2 of Additional Issues,
dt.28-08-2018:
9.The plaintiffs filed their allotment certificate issued by the then President of Kurnool District Government IV Class Employees Co- 8 operative House Building Society by name G.Balanarasimhulu to prove the fact that the father of the first plaintiff was issued allotment certificate relating to the suit schedule site i.e., plot No.280-B by the
Kurnool District Government IV Class Employees Co-operative House
Building Society on 01-01-2001. Though they have filed the allotment certificate, during his cross-examination, PW1 stated that he does not know whether his father paid the membership fees of Rs.15/- to Kurnool
District Government IV Class Employees Co-operative House Building
Society and that he does not know whether his father paid an amount of
Rs.1,300/- towards costs of the plot and that he does not know whether there is any recital in Ex.A1 that possession of the plot No.280-B was given to his father. He further admitted that he does not know whether his father made any application to the Kurnool District Government IV
Class Employees Co-operative House Building Society to execute a registered sale deed in his favour relating to suit schedule plot No.280-B.
He stated in his continuation of cross-examination that on 05-10-2001 he made an application to the President Kurnool District Government IV
Class Employees Co-operative House Building Society to execute a registered sale deed in his favour relating to plot No.280-B and that he has not filed the copy of the application before the court as stated by him.
10.In fact, PW1 stated in his cross-examination that his father died on 04-05-2014 and that by the time of filing of this suit, his father was alive. On perusal of record, it is noticed that the suit was filed on 04-03-2013 by the plaintiffs being the LRs of father of first defendant by name G.Galenna. It is mentioned in the plaint that G.Galenna died in the year 2009. When the father of the plaintiff was alive till 2009 as per the pleadings of plaint and till 04-05-2014 as per the evidence of PW1 during his cross-examination, PW1 making an application to the President of
Kurnool District Government IV Class Employees Co-operative House
Building Society on 05-10-2001 to execute a registered sale deed infavour of PW1 would not arise. However, the President of IV Class
Employees Co-operative House Building Society by name G.Abraham stated in his cross-examination conducted by D1 that he does not know whether L.Rs of Galenna i.e., the plaintiffs have approached the society within three months from the date of death of Galenna for allotment of 9 plot. The witness added that the L.Rs of Galenna approached him once and that since the suit is pending before the court, he advised them to get their relief through the court. It is clear from his evidence that after filing of the present suit L.Rs of G.Galenna i.e., the plaintiffs approached the President Kurnool District Government IV Class Employees Co- operative House Building Society and that there is no evidence that either the father of first plaintiff by name Galenna or the plaintiffs have approached the President of Kurnool District Government IV Class
Employees Co-operative House Building Society for registration of plot either in favour of father of the first plaintiff by name Galenna or in the name of his L.Rs after the death of G.Galenna. The plaintiffs could not give any explanation as to why they could not get a registered document executed in favour of the allottee or his legal heirs relating to plot
No.280-B. The plaintiffs did not get examined the then President Kurnool
District Government IV Class Employees Co-operative House Building
Society by name G.Bala Narasimhulu who issued the allotment certificate in favour of Galenna under Ex.A1. There is no explanation either in the pleadings or in the evidence of the plaintiff with regard to the reason for not producing the then President G.Bala Narasimhulu
before the court to prove with regard to issuance of allotment certificate
in favour of G.Galenna which is the only document available in the name of father of the first plaintiff and basing on which the plaintiffs herein are claiming their possession over the suit schedule plot.
11.The second defendant by way of her oral and documentary evidence adduced before the court tried to dispel the evidence of plaintiffs that they have been in possession of the suit schedule property.
The defendants got elicited from PW4 G.Narayana that he issued allotment certificate to D.Rajamma on 08-03-2007 allotting plot
No.280-B and that on the request of said D.Rajamma who was working as a IV Class Employee in Government General Hospital, the then
President i.e., G.Narayana PW4 registered a sale deed inf avour of Ravi
Kumar Reddy under Ex.B1 with respect of plot No.280-B i.e., the suit schedule plot. PW4 further clarified in his evidence that at the time of issuing allotment certificate, he delivered possession to Rajamma with regard to plot No.280-B. He further mentioned that possession of plot
No.280-B was delivered to D1 i.e., Ravi Kumar Reddy at the time of 10 execution of Ex.B1. The first defendant being DW1 deposed before the court that he sold the suit schedule plot to D2 under Ex.B2 sale deed on 01-01-2010 and delivered possession of the suit schedule plot. There is no issue of delivering possession of plot No.280 either to the father of the first plaintiffs or to the plaintiffs in the evidence produced by the plaintiffs. The allotment certificate Ex.A1 filed by the plaintiffs also do not contain any recital as to delivery of possession to the allottee. On the other hand Ex.B3 allotment certificate issued in favour of Rajamma contains a recital that possession of plot No.280-B was delivered to allottee.
12.The learned counsel for the defendant No.2 relied on a decision reported in 1998 (2) ALT 766 between Prapul Chandra
Mukpalkar and another Appellants vs. P.Rama Chandra Reddy
and another Respondents,which is a suit of similar facts. It is held in para 7 of the above judgment that, “7. Admittedly, the 2nd defendant Society is the original owner of the suit plot. Equally with admission, it was allotted to one Mr. Seshagiri Rao, a member of the Society. It is through him one Mr. Suryanarayana said to be his brother or legal heir claimed the right and title to the suit plot by virtue of the Will Ex.B20 probated under Ex.B19. The actual allotment order in favour of Mr. Seshagiri Rao is not before the Court. No material is placed on record as to what transpired after the allotment in his favour in regard to the payment of the value or registration or any sale deed in his favour. On the other hand, it transpires from the totality of the materials that barring the allotment of the suit plot in his favour, no further conduct was for borne including want of execution of a registered sale deed in his favour. Bye-law No.42(Ex.31(a) deals with the procedure governing the allotment of plots to the members. Sub-clause (11) of Bye- law No.42 of the Society contemplates that every member shall pay the cost of the plot allotted to him within a period of 90 days from the date of allotment and betterment levy as charged by the Society shall also be paid by the member within the time prescribed by the Society. Sub-clause (12) of the same bye-law further contemplates that the Society shall execute the sale deed for the plot allotted to a member on payment of all costs and fees in full; such costs shall include the cost of the land, legal fee, registration charge, betterment charges etc.; and before the Society executes the sale deed, the member shall also execute an agreement undertaking to pay to the Society any additional levy that may be made by the Society to meet any such further charges as it may have to incur in connection with 11 the plot allotted to the member. A1though PW6, the Ex- President of the Society, and DW6, the present Secretary of the Society, are examined there is nothing to indicate in their testimony that Mr. Seshagiri Rao complied with such conditions nor the Society acted in pursuance of such terms by executing any registered sale deed in his favour to confer a real and legal title on him in regard to the suit plot. Therefore, it was a conditional right in favour of Mr. Seshagiri Rao conferred by the Society by allotting the plot in his favour and it can never be a vested right Admittedly, the value of the suit plot exceeds Rs.100/-nor it is pleaded or established that its value is less than Rs.100/-. Therefore, the title on Seshagiri Rao could not have been conferred in regard to the suit plot, being an immovable properly, except in accordance with Section 54 of the Transfer of Property Act and Section 17 of the Registration Act by means of a registered sale deed, etc. Therefore, fundamentally, it must be held that Seshagiri Rao did not acquire any vested right or title to the suit plot till he died. Thus his conferring any right on Suryanarayana by virtue of the Will Ex.B20 will not arise. Mr. Nanda Kishore, learned Advocate for the appellants, has rightly pointed out that Ex.B20 itself is incongruable with the realities and raises suspicion whether at all there could have been an in-anticipation bequeath in favour of the legal heir by Seshagiri Rao even before the allotment as it is patently shown that the date of allotment is 1-1-1961 whereas the date of the Will Ex.B20 is prior thereto viz., 12-44960. Therefore, Seshagiri Rao could not have conferred any title on Suryanarayana which he did not have in regard to the suit plot.”
Here, in the present suit, no registration has taken place in favour of father of the first plaintiff during his lifetime so also in favour of legal representative of the father of the first plaintiff after the death of father of the first plaintiff by name Galenna as required under Sec.54 of
Transfer of property Act and Sec.17 of Registration Act. On the other hand, the Transfer of plot No.280 from the original owner i.e., the
Government IV Class Employees Co-operative House Building Society to second defendant is proved by Exs.B1 to B3. The plot was allotted to a member of Government IV Class Employees Co-operative House Building
Society by name D.Rajamma she sold the plot to first defendant Ravi
Kumar Reddy through the President of Kurnool District Government IV
Class Employees Co-operative House Building Society and Ravi Kumar
Reddy sold it to the second defendant Shameem Begum. Through the cross-examination of PW4 G.Narayana, evidence of DW1 Ravi Kumar
Reddy and DW2 Shameem Begum so also by filing Exs.B1 to B3 the sale deed executed in favour of D2 by D1, the sale deed executed in favour 12 of D1 by the President of Government IV Class Employees Co-operative
House Building Society at the request of the allottee by name Rajamma and the allotment certificate dt.08-03-2007 issued in favour of Rajamma, the defendants proved the flow of possession of suit schedule site.
Ex.B3 contains a recital that possession of plot No.280-B was delivered to D.Rajamma. G.Narayana i.e., the then President of Government IV
Class Employees Co-operative House Building Society deposed before the court that he delivered possession of suit schedule site to Rajamma at the time of issuing allotment certificate and that at the request of the allottee of the plot, he registered plot in favour of the vendee i.e., defendant No.1 directly. This evidence of G.Narayana could not be discredited by the plaintiffs.
13.During her evidence, DW2 deposed that she obtained
Encumbrance Certificate relating to plot No.280-B prior to her purchasing the plot and that she also obtained another Encumbrance Certificate during pendency of the suit. She filed both the Encumbrance
Certificates and got marked them as Exs.B4 and B7. Ex.B4 shows that
M.Ravi Kumar Reddy i.e., the first defendant was the claimant of plot
No.280-B in Sy.No.697/1 and 696 i.e., suit schedule plot and that the
Government IV Class Employees Co-operative House Building Society was the executant of the sale deed infavour of said Ravi Kumar Reddy.
Ex.B7 Encumbrance Certificate shows that the first defendant Ravi
Kumar Reddy executed sale deed infavour of second defendant
Shameem Begum relating to plot No.280B situated in Sy.No.697 and 696.
14.Ex.B5 certified copy of building permit order dt.05-01-2013 issued by the Commissioner Kurnool Municipal Corporation, Kurnool permitting the second defendant to construct a residential house and
Ex.B6 Blue Print i.e., plan submitted by the second defendant to the
Kurnool Municipal Corporation for permission to construct a house are showing that the second defendant was taking steps for constructing a house and that she was permitted to construct a building as per her application on 05-03-2013. All the documents got marked by the defendant show that the possession of the property flown to the second defendant and that there is no other Encumbrance on the plot 280-B by 13 the time of filing of this suit and that her application to the Municipal
Corporation for constructing a house was also verified by the Municipal
Corporation and that she was given permission for constructing a house in plot No.280-B by the Municipal Corporation, two months prior to the alleged cause of action mentioned by the plaintiff in the plaint.
15.The specific contention of the plaintiffs is that the 1st defendant came to the plaint schedule plot along with his men and tried to pull down the hut of the plaintiffs and also attempted to dispossess the plaintiffs from the suit schedule plot. In fact PW1 deposed in her cross-examination that he has not seen Ravi Kumar Reddy i.e., D1 on the day of alleged incident of attempt of D1 to pull down the hut of plaintiffs.
16.Except the allotment certificate given in favour of father of the plaintiff No.1, the plaintiffs did not file any other document to show their possession over the plaint schedule plot like Electricity Bill, Water
Bill or any other piece of document. Mere allotment certificate would not confer any right or possession. In fact the allotment certificate
Ex.A1 also does not contain any recital that possession is given to the allottee i.e., the father of 1st plaintiff.
17.The learned counsel for the plaintiff got examined the learned Advocate Commissioner who visited the suit schedule plot and prepared a report. The photographs filed by the Advocate Commissioner and the report under Ex.C1 show that there is a hut in the suit schedule plot. The warrant was executed on 03-04-2013 as per the evidence of learned Advocate Commissioner. By the date of issuance of notice, the first defendant was not having an Advocate on record. Admittedly, defendant No.2 was not made a party by the date of execution of warrant. The first defendant was sent notice by the learned Advocate
Commissioner on 30-03-2013 and it was returned with an endorsement that “No such addressee. Hence, returned to sender”, on 04-04-2013.
Before the returning of the notice, the learned Advocate Commissioner
executed his warrant. The Advocate Commissioner was having knowledge that there is no Advocate for the first defendant on record and executed the warrant before returning of the notice sent to first defendant who was the only respondent on record by that time. It is 14 appearing to be a hasty step by the learned Advocate Commissioner.
The learned counsel for the first defendant relied on a citation between
Maroli Achuthan v. Kunhipathumma reported in AIR 1968 Kerala 28, wherein it was held in para No.10 that, “10. Even apart from the principles underlying Order 26, Rule 18, the said provision also is imperative in nature. The presence of the parties is considered imperative by the very provision contained in Order 26, Rule 18. C.P.C. The learned counsel for the revision petitioner contended before us that where the court has not by a specific order directed the parties to appear before the Commissioner any notice by the Commissioner himself to the defendant to appear
before him in the property at the time of the investigation
will not be sufficient We are unable to accept this extreme contention raised by the learned counsel for the revision petitioner A technical interpretation of Order 2ft. Rule 18, C.P.C. will no doubt support the position taken up by the learned counsel for the revision petition. In a bench decision of the Andhra Pradesh High Court in Narayana Dossjee v. Board of Trustees T. T. Devasthanams , AIR 1959 Andh Pra 64, Subba Rao. C. J., as he then was, observed that a Commissioner appointed under Order 26, Rule 9, for investigation is in effect a projection of the Court appointed for a particular purpose who is also bound by the fundamental principles governing judicial procedure, Therefore, even though there was no direction by the court directing the parties to appear under Order 26, Rule 18, C.PC if notice is issued to the parties by the commissioner directing them to appear in connection with the investigation to be done that will be substantial compliance with the provision of Order 30, Rule 18 C.P.C. In the case
before us there was no direction by the court. The
commissioner also did not issue any notice in writing calling upon the defendant to appear before him in the property on the date on which he visited the same.
The learned Munsiff observed that the Commissioner stated that before inspecting the property he went to the defendant's house and on an enquiry he found that the defendant was not there. This does not satisfy the requirements of Order 26, Rule 18. Under Order 26, Rule 18, C.P.C there must be a direction by the court of which notice has to be given to the parties or at least the commissioner should issue notice to the parties calling upon them to appear on the property on the date he proposes to visit the property for investigation. A violation of Order 28, Rule 18, will not therefore justify the reception of the report us part of the evidence under Order 26. Rule 10, Sub-rule (2) C.P.C. It has to be mentioned that the non-observance of the provision contained in Order 20, Rule 10 will not make the report totally inadmissible in evidence it is open to the 15 plaintiff in such cases if he wants to rely on the report to examine the Commissioner who prepared the same as a witness. In this connection it is necessary to quote again the observations of Subba Rao. C. J. in AIR 1958 Andh Pra 64. The learned Chief Justice observed.
"If he (the Commissioner) is an experienced man with knowledge of the nature of the lands and the field from different types of trees his estimate based on his experience would be acceptable evidence unless contradicted by more reliable expert or other evidence. But the information gathered by him behind the back of the parties is not evidents in the case. The fact that some of the conclusions of the Commissioner were based on no evidence or that he relied upon enquiries made by him behind the back of the parties, would not deprive the entire report of its evidentiary value. The Court may rely upon such part of the report which is not based upon such irrelevant material and also on other evidence to sustain the conclusions of the Commissioner."
The report of the Commissioner may be relied on after examining the Commissioner not as report forming the basis of an investigation contemplated by Order 26, Rule 9, but as corroborating the evidence of inspection conducted by the Commissioner The view by the lower court therefore that the report can be treated as evidence in the suit under Order 26, Rule 10, Sub-rule (2), C.P.C. is not correct and has therefore to be set aside. In the result, we set aside the order of the court below and allow the revision petition subject to the observations made above. We make no order as to costs.
In view of the verdict of the Hon'ble High Court of Kerala in the above citation, this court is of the considered view that the observations made by the learned Advocate Commissioner behind the party to the proceeding, may be relied upon by the court as to such part of the report which is not based upon such irrelevant material and also on other evidence to sustain the conclusions of the Commissioner.
18.Here, in the present suit, the photographs filed by the learned Advocate Commissioner along with the report show that it was white washed recently and that there are gaps in the 'thattis' placed as the roof of the hut which was admitted the learned Advocate
Commissioner. One cannot live in a thatched hut which is having gaps in the roof since it does not protect the dwellers from sun rays and rains.
Relying on the above citation, this court is of the considered view that the conclusions given by the learned Advocate Commissioner that the 16 hut is used for residential purpose cannot be relied upon in toto while reaching a finding as it was prepared in the absence of one of the parties whom the notice was not reached as per the postal endorsement. In view of above discussions and judgments cited these issues are decided against the plaintiffs.
Issue No.2:
19.Here, in the present suit, the defendant is not only disputing the possession of the plaintiff, but also the title of the plaintiff over the suit schedule property. DW2 is claiming title and possession over the suit schedule plot by way of oral and documentary evidence. It is not a mere denial of claim of plaintiff. PW1 also admitted in his cross- examination that he knows that President of Government IV Class
Employees Co-operative House Building Society executed sale deed in favour of D1 and that D1 sold the suit schedule plot to D2. It is clear that the plaintiffs were aware of execution of sale deed in favour of vendor of D2 by the Government IV Class Employees Co-operative
House Building Society and also aware of execution of sale deed in favour of D2 by D1 by the time of filing of the suit but the plaintiffs have approached the court for Temporary Injunction against D1 who had already sold out the suit schedule property to D2. The plaintiffs have not sought for declaration of their title or to declare the sale deed of D2 as void. The learned counsel for the defendant No.1 relied on a citation reported in 2008 CJ SC (41) Anathula Sudhakar vs P. Buchi Reddy, wherein held in Para Nos.13 and 14 of the judgment as follows:
“13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
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14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.”
The Judgment relied upon by the learned counsel for D1 squarely applies to the present set of facts. The learned counsel for D1 relied on another citation between Jharkand State Housing Board v.
Didar Singh and another reported in AIR 2018 SC (Supp) 1159 wherein it was held in para Nos.11 and 12 that, “11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.
12. In the facts of the case the defendant Board by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The Courts below erred in entertaining the suit for injunction.”
The facts and the verdict dealt with in the above judgment are squarely applicable to the present set of facts. Hence, this issue is decided against the plaintiffs.
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20.In the light of above discussed facts and circumstances of this suit, this court is of the considered view that the plaintiffs failed to prove their possession for the suit schedule property by the time of filing of the suit. On the other hand, the defendant succeeded to dispel the evidence of plaintiffs and proved her possession over the plaint schedule property by the time of filing of the suit by way of filing Exs.B4 to B7, the
Encumbrance Certificates and building permit order issued by the
Municipal Corporation, Kurnool. Hence, the plaintiffs are not entitled for permanent injunction against the defendants as prayed for.
Issue No.4 and Issue No.3 of Additional Issues dt.28-08-2018:
21.In the result, the suit is dismissed with costs.
Dictated to the Personal Assistant, transcribed and typed by
her, corrected, signed and pronounced by me in the open Court on this the 16 th day of April, 2021.
Principal Junior Civil Judge,
Kurnool.
Appendix of Evidence Witnesses Examined
For Plaintiffs: For Defendants:
PW-1: G.VenkateswarluDW-1: M.Ravi Kumar Reddy
PW-2: G.RameshDW-2: Shameem Begum
PW-3: G.AbrahamDW-3: C.Md.Iliyas
PW-4: G.NarayanaDW-4: I.Naga Raju (Town Planning Officer)
DW-5: Sajid Basha
Exhibits Marked
For Plaintiffs:
Ex.A-1: Original allotment certificate dt.01-01-2001
Ex.A-2: Certified copy of Dip Register
Ex.A-3: Certified copy of Registered Sale Deed dt.24-01-2007 vide
Doc.No.1373/2007
Ex.A-4: Certified copy of Registered Sale Deed dt.11-12-2006 vide
Doc.No.16864/2006 19
For Defendants:
Ex.B-1: Certified copy of sale deed dt.13-03-2007
Ex.B-2: Certified copy of Sale Deed dt.01-01-2010
Ex.B-3: Plot allotment certificate of Rajamma
Ex.B-4: Certified copy of Encumbrance certificate dt.26-12-2009 issued by Registration and Stamp Department relating to the suit schedule house plot from 01-10-2007 to 25-12-2009
Ex.B-5: Certified copy of building permit order dt.05-01-2013 issued by the Commissioner, Kurnool Municipal Corporation, Kurnool permitting to a residential building
Ex.B-6: Certified copy of blue print plan submitted by the second defendant to the Kurnool Municipal Corporation, Kurnool
Ex.B-7: Encumbrance Certificate, dt.07-12-2020 issued in favour of second defendant
FOR ADVOCATE COMMISSIONER
CW-1: C.Nagamalleswar Reddy
EXHIBITS MARKED THROUGH ADVOCATE COMMISSIONER
Ex.C1:Commissioner Report along with rough sketch, photographs & C.D.
Ex.C2:Returned Postal cover of M.Ravi Kumar Reddy
PJCJ, KNL.