Sri. A. Radha Krishna Murthy

V ACJ Court (SD) (FTC), VSP

OS.No.1747 of 2008

APVS010000402008

IN THE COURT OF THE V ADDITIONAL CIVIL JUDGE (SENIOR

DIVISION) (FTC) AT VISAKHAPATNAM

PRESENT: SRI A.RADHA KRISHNA MURTHY

VII ADDITIONAL CIVIL JUDGE (SENIOR DIVISION)

FAC V ADDITIONAL CIVIL JUDGE (SENIOR DIVISION)

VISAKHAPATNAM

MONDAY, THE TWENTY-SECOND DAY OF DECEMBER

TWO THOUSAND AND TWENTY-FIVE

o . 1747 OF 2008

ORIGINAL SUIT N

Between :

Puthenduryail Kuriakose Jose (P.K.Jose) … Plaintiff

A n d

01. Muvvala Srinivasa Rao (died)

02. Manthina Kowsalyamma

03. Pottangi Gowri

04. Manthina Manga

05. Manthina Madhavi

06. Manthina Srinivasa Rao

07. Manthina Ramakrishna Rao

08. Siddineni Raghava Rao

09. Muvvala Saraswathamma

10. M.Sai Lohith Kumar

11. Sai Tulasi

12. M.Lakshmi (D9 to D12 added as LR’s of deceased D1 as per the Orders in I.A.8/2022 dated 16.08.2022) … Defendants

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OS.No.1747 of 2008

The Suit coming before me today in the presence of Sri N.Sanni Babu, learned Counsel for Plaintiff; B.Manjula, Learned Counsel for the 1st Defendant, Sri R.Krishnam Raju, Learned Counsel for the Defendants 2 to 7, the Defendants 8 to 12 have remained ex-parte, upon hearing both sides, considering the material available on record, this Court deliver the following :

J U D G M E N T

This is a Suit filed for the relief of Declaration to declare the right, title and interest of the Plaintiff over the Plaint Schedule Property1, for consequential relief of Permanent Injunction restraining the 1st

Defendant, his men and agents from ever interfering with the peaceful possession and enjoyment of the Plaintiff over the Plaint Schedule

Property, for costs and for such other reliefs.

2. CASE OF THE PLAINTIFF SUCCINCTLY :

2.1Originally, the Plaint Schedule Property belonged to the husband of the 2nd Defendant and father of the Defendants 3 to 7 by name M.Jagannadham Naidu as he had purchased the same through the

Registered Sale Deed dated 17.03.1986 from Girijan Cooperative

Corporation Employees House Building Society Limited, Visakhapatnam.

The said Jagannadham Naidu died on 02.03.1988 intestate leaving behind him, the Defendants 2 to 7 as his legal heirs and they have succeeded the Plaint Schedule Property. The Defendants 2 to 7, for their legal necessities sold out the Plaint Schedule Property to the 8th

Defendant through the Registered Agreement of Sale-cum-GPA dated 1Property all around compound wall in an extent of 289 square yards in Plot No.1 in Survey No.4P of Madhurawada village. Page 2 of 16

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OS.No.1747 of 2008

25.09.2004. Subsequently, the Plaintiff purchased the Plaint Schedule

Property from the Defendants 2 to 7 represented by their GPA holder i.e., 8th Defendant through the Registered Sale Deed dated 20.07.2005 and since then he has been in peaceful possession and enjoyment over the same. Thus, the Plaintiff is absolute owner and possessor of the Plaint

Schedule Property.

2.2 After purchase, the Plaintiff got constructed compound wall around the Plaint Schedule Property and also constructed a thatched shed. The Plaintiff removed thatched shed and started construction of shed and engaged mason from 17.11.2008. While the work was in progress, on 24.11.2008, the 1st Defendant obstructed the workers. The

Plaintiff gave a Police report on 25.11.2008. On enquiry regarding his right for obstruction, the 1st Defendant produced a Photostat copy of

Registered Sale Deed dated 30.06.2008 executed by the Junior Civil

Judge, Bheemunipatnam on behalf of the Defendants 2 to 7 in

EP.60/2007 in OS.40/1997. On further enquiries, the Plaintiff came to

know that the 1st Defendant created a forged and fabricated Sale

Agreement as if it was executed by Jagannadham Naidu on 05.01.1986 and basing on which, the 1st Defendant filed a Suit and obtained Decree and also obtained Registered document. The 1st Defendant has no right over the Plaint Schedule Property. On 13.12.2008 also the 1st Defendant tried to interfere with the Plaint Schedule Property. Hence, the Plaintiff has filed the Suit.

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OS.No.1747 of 2008

3. CASE OF THE 1 st DEFENDANT IN A NUTSHELL :

The 1st Defendant has filed Written Statement and denied the material contents of the Plaint. The 1st Defendant filed a Suit in

OS.No.48/1997 for Specific Performance of Contract and for such other

reliefs against the Defendants 2 to 7 and it was pending before the Junior

Civil Judge, Bheemunipatnam long prior to the alleged execution of

GPA-cum-Sale executed by the Defendants 2 to 7 in favor of the 8th

Defendant who in-turn executed a Registered Sale Deed dated 20.07.2005. So, those documents are hit by the Section 52 of Transfer of

Property Act, 1882. The Registered Sale Deed dated 20.07.2005 does not clothe the Plaintiff with any rights.

3.2The 1st Defendant purchased the Plaint Schedule Property from Jagannadham Naidu under an Agreement to Sell dated 05.01.1986 and subsequently, as Jagannadham Naidu died, the 1st Defendant filed

Suit in OS.48/1997 and Suit has been decreed on 29.03.2007 after keen contest by the Defendants 2 to 7. Subsequently, the 1st Defendant filed

EP.60/2007 and got obtained Sale deed from the Court as the Defendants

2 to 7 have not come forward to execute a Registered Sale Deed.

Thereafter, the 1st Defendant filed EP.57/2008 for delivery of the Plaint

Schedule Property and it was delivered on 06.08.2008. Hence, the

Plaintiff has no manner of right, title or interest and even the possession over the Plaint Schedule Property. As such, the Plaintiff is not entitled to the relief of Declaration and for Injunction. Finally, the 1st Defendant sought for dismissal of the Suit with costs.

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OS.No.1747 of 2008

4. CASE OF THE DEFENDANTS 2 TO 7 IN A NUTSHELL :

The 2nd Defendant filed Written Statement and the

Defendants 3 to 7 have adopted the Written Statement of 2nd Defendant.

The Defendants 2 to 7 have admitted that they have sold out the Plaint

Schedule Property to the 8th Defendant under the Registered GPA-cum-

Sale and in-turn the Plaintiff purchased the Plaint Schedule Property from the 8th Defendant. The 1st Defendant brought into existence the Sale

Agreement and filed Suit and obtained decree. Having admitted the case of the Plaintiff, the Defendants 2 to 7 sought for dismissal of the Court as the Plaintiff filed the present Suit by making false allegations.

5. I S S U E S :-

As both the parties did not arrive at settlement Under Sec.89 of CPC, my learned Predecessor has settled the following issues for trial.

1) Whether the Plaintiff is the owner of the Suit property and he has got title to the property?

2) Whether the Plaintiff is entitled for declaration of title as prayed for ?

3) Whether the Plaintiff is in possession and enjoyment of the Plaint Schedule Property as on the date of filing of the Suit?

4) Whether the Plaintiff is entitled for permanent injunction as prayed for?

5) Whether the Plaintiff is entitled for declaration as prayed for?

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OS.No.1747 of 2008

6.At the stage of Trial, this Suit has been transferred to this

Court from the Court of II Additional Senior Civil Judge, Visakhapatnam as per the Proceedings of the Hon’ble Principal District Judge,

Visakhapatnam vide Dis.No.4278 dated 16.07.2010.

7. TRIAL PROCEEDINGS :

During Trial, on behalf of the Plaintiff, PW-1 to PW-4 were examined and Ex.A-1 to Ex.A-8 were marked. The evidence of PW-2 has been eschewed on 14.12.2017. Thus, the evidences of PW-1, PW-3 &

PW-4 are to be considered on behalf of the Plaintiff.

7.2On the other hand, the Defendants 2 to 7 have not adduced any evidence and hence, their evidence has been closed.

7.3The testimonies of PW-1, PW-3 & PW-4 are very much available on record in the form of depositions and they are not reproducing here to avoid prolixity.

8.Subsequently, the 1st Defendant died and the Defendants 9 to 12 have brought on record as the legal heirs of the 1st Defendant and they have also remained ex-parte.

9.Heard the learned counsel for the Plaintiff and the learned

Counsel for the contesting Defendants and perused the material available on record.

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OS.No.1747 of 2008

10. ISSUES No.1 : Whether the Plaintiff is the owner of the Suit property and he has got title to the property?

&

ISSUE No.3 : Whether the Plaintiff is in possession and enjoyment

of the Plaint Schedule Property as on the date of filing of the Suit?

Both these issues are answered together to avoid duplication in the appreciation of evidence.

10.1It is true as rightly pointed out by the learned Counsel for the

Plaintiff, the Defendants have not adduced any evidence. But, mere non- adducing evidence by the Defendants is not a sole ground to say that the

Plaintiff is owner of the Plaint Schedule Property and he has been in possession and enjoyment over the same. It is settled legal principle that in a Suit for Declaration of Title and for consequential Perpetual

Injunction, the burden is on the Plaintiff to establish his case and he cannot depend upon the weakness if any in the case set out by the

Defendants. So, notwithstanding the factum of non-adducing evidence by the Defendants, the Plaintiff has to stand on his own legs.

10.2In order to discharge the initial burden cast upon the Plaintiff, he has placed reliance the oral testimonies of PW-1, PW-3 & PW-4 coupled with the documentary evidence under Ex.A-1 to Ex.A-8.

10.3The Plaintiff, as PW-1 filed Chief Examination Affidavit by adverting to the contents of the Plaint and hence, the Chief Examination affidavit of PW-1 is nothing but replica of Plaint. The Defendants 2 to 8

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have cross-examined PW-1 and even in the cross-examination, PW-1 reiterated the plaint contents. During the course of cross-examination done by the learned Counsel for the 1st Defendant, PW-1 pleaded ignorance as to whether the Defendants 2 to 7 have appeared as

Defendants in OS.48/1997 and contested the case. PW-1 categorically deposed that 1st Defendant filed OS.48/1997 and also filed EP.60/2007 &

E.P.57/2008 and delivery of the Plaint Schedule Property has been

recorded in EP.57/2008.

10.4It is the contention of learned Counsel for the Plaintiff that according to the evidence of PW-1 coupled with Ex.A-3, the husband of the 2nd Defendant and father of Defendants 3 to 7 had got the Plaint

Schedule Property by way of Registered Sale deed dated 15.03.1986, it is unimaginable that Jagannadham Naidu executed a Sale Agreement in favor of the 1st Defendant on 05.01.1986. It is also contended that the boundaries as mentioned in Ex.A-1, Ex.A-5 & Ex.A-6 are different and it shows that the Suit in OS.48/1997 is a collusive Suit. This is not the Suit filed to declare that the Suit in OS.48/1997 is a collusive Suit and this is the Suit filed for Declaration of rights and title of the Plaintiff over the

Plaint Schedule Property. Further, as could be seen from Ex.A-5, the

Defendants 2 to 7 in this case are the Defendants 1 to 6 in OS.48/1997 and they have contested the Suit and on contest the Suit was decreed.

During the course of cross-examination, PW-1 pleaded ignorance as to whether the Defendants 2 to 7 have preferred any Appeal against the

Decree and Judgment in OS.48/1997. Even there is no whisper in the

Written Statement of the Defendants 2 to 7 regarding the Appeal

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OS.No.1747 of 2008

preferred by them against the Decree and Judgment in OS.48/1997. So, it can be said that the Decree and Judgment in OS.48/1997 became final.

10.5According to the evidence of PW-1 coupled with Ex.A-3, the

Defendants 2 to 7 have executed Ex.A-3 on 25.09.2004 whereas the contents of Ex.A-5 reveals that as on Ex.A-3, OS.48/1997 was pending and the Defendants 2 to 7 were contesting the said suit. So, it is clear that the Defendants 2 to 7 have executed Ex.A-3 during pendency of

OS.48/1997 and thus, Sec.52 of the Transfer of Property Act, 1882 kicks

Ex.A-3. Of course, the Plaintiff may say that he is unaware of the pendency of Suit and he purchased the property from the 8th Defendant.

But, as the Defendants 2 to 7 were contesting the Suit in OS.48/1997 as on Ex.A-3 and having knowledge regarding the pendency of the said Suit, as the Defendants 2 to 7 have executed Ex.A-3 basing on which, PW-1 purchased the Plaint Schedule Property under Ex.A-1, in the opinion of this Court, both Ex.A-1 & Ex.A-3 are subject to outcome of the Suit in

OS.48/1997.

10.6At this juncture, this Court came across the Judgment of

Hon’ble High Court of AP in Guthikonda Veera Venkata Murali Prasad

and Ors., v. Doradla Koteswara Rao and ors., 2, wherein it has been held thus :

“While Sec.52 of the Transfer of Property Act, does not outright prohibit the transfer of property during the pendency of suit, it does stipulate that prior permission must 2MANU/AP/1073/2025 : 2025 (2) ALT 778 Page 9 of 16

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be obtained from the Court before such a transfer can take place.” 10.7In this case at hand, from the Written Statement of the

Defendants 2 to 7, it is not their case that they have obtained permission in OS.48/1997 and executed Ex.A-3 in favor of the 8th Defendant and even there is no such suggestion to PW-1 in the cross-examination done by them. So, it is very clear that without obtaining permission from the

Court in OS.48/1997, the Defendants 2 to 7 have executed Ex.A-3 in favor of the 8th Defendant and so, Ex.A-3 suffers the doctrine of

Lis pendens and Ex.A-3 is hit by the Sec.52 of the Transfer of Property

Act. As the Suit in OS.48/1997 was already decreed and even according to the case of the Plaintiff, subsequently, the 1st Defendant filed EP.No.60 of 2007 and obtained Registered Sale Deed, in the opinion of this Court, no right or interest has been transferred to the 8th Defendant under

Ex.A-3.

10.8Be that as it may, according to the evidence of PW-1 coupled with Ex.A-3, the Defendants 2 to 7 have executed a Registered

Agreement of Sale with GPA in favor of the 8th Defendant in respect of the

Plaint Schedule Property. A Power of Attorney is not an instrument of

Transfer in regard to any right, title or interest in an immovable property.

The Power of Attorney is creation of an agency whereby the grantor authorizes the grantee to it the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him as contemplated Under Section 1A and Section 2 of the Power of Attorney

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Act, 1882. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. A perusal of recitals of Ex.A-3, the 8th Defendant is only an agent to act on behalf of the

Defendants 2 to 7 to the acts as mentioned in Ex.A-3. Further, in the 2nd page of Ex.A-3, the condition No.3 is as follows :

The VENDORS shall be legally obliged to register the sale deed or Sale deeds in favour of the PURCHASER or his nominees either in parts as undivided shares or as a whole.

10.9The condition as extracted supra clearly shows the intention of the parties that the 8th Defendant shall get a Sale Deed in his favor from the Defendants 2 to 7. Of course, as rightly pointed out by the learned Counsel for the Plaintiff, it was also recited in Ex.A-3 that it is not possible for the VENDORS to visit the public offices frequently to effect registration etc., they authorized the 8th Defendant to do all the acts. But, when the Defendants 2 to 7 have knowledge that they shall execute a

Sale Deed as per condition No.3 as extracted supra, in the opinion of this

Court, mere reciting another recital as stated supra, does not by itself convey ownership to the 8th Defendant in respect of the Plaint Schedule

Property. It is true as rightly pointed out by the learned Counsel for the

Plaintiff, in Ex.A-3 there is a recital that the Defendants 2 to 7 have delivered the vacant possession of the Plaint Schedule Property to 8th

Defendant on the date of Ex.A-3 itself and the total sale consideration was also passed. In such a case, the 8th Defendant ought to have get a

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Regular Registered Sale Deed instead of getting Ex.A-3. There is no explanation for the same from the end of Plaintiff or the Defendants.

There arises a doubt in the case of the Plaintiff.

10.10In Ramesh Chand (D) through LRS vs. Suresh Chand and another3 wherein, it has been held thus:

“Neither an Agreement to Sell nor a General Power of Attorney can transfer ownership and only a duly executed and

Registered Sale Deed conveys legal title.

10.11Therefore, in the light of the above judicial precedent, it is very clear that Ex.A-3/General Power of Attorney cum Agreement to Sell neither create any title nor interest over the Plaint Schedule Property.

As such, as rightly contended by the learned Counsel for the Defendants, though the Plaintiff has obtained a Regular Sale Deed under Ex.A-1 from the 8th Defendant, it does not create or confer any title over the Plaintiff since no legal title has been flowed to the 8th Defendant by virtue of

Ex.A-3. Moreover, in the cross-examination, PW-1 also pleaded ignorance about the original of Ex.A-4. Ex.A-4 is the Certified Copy of

Registered Sale Deed dated 17.03.1986 under which Jagannadham

Naidu purchased the Plaint Schedule Property. If at all, the original is with the Defendants 2 to 7 they would have handed over the same to the 8th

Defendant while executing Ex.A-3 and in-turn, the 8th Defendant would have handed over the same to PW-1 while executing Ex.A-1. But, it is not the case of the Plaintiff that the Original of Ex.A-4 was handed over to 3 MANU/SC/1213/2025 : AIR 2025 SC 4108 Page 12 of 16

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OS.No.1747 of 2008

him while executing Ex.A-1. It is another circumstance which creates a doubt in the case of the Plaintiff.

10.12The Plaintiff has got examined PW-3 & PW-4 to say that during November, 2008 when PW-1 engaged labor to construct room in the Plaint Schedule Property, the 1st Defendant has obstructed. During the course of cross-examination, PW-3 pleaded ignorance as to whether the Defendants 2 to 7 sold out the Plaint Schedule Property to the 1st

Defendant in the year 1986 and he also pleaded ignorance regarding the possession of the 1st Defendant over the Plaint Schedule Property.

PW-4 testified during the course of cross-examination that he has not filed any document to show that he received 25,000 from the Plaintiff to₹ construct basement by engaging labors. The oral testimonies of PW-3 and PW-4 are not that much helpful to establish the title and possession of the Plaintiff over the Plaint Schedule Property since the title must be conferred by virtue of documents but not by oral evidence and

Possession follows Title. As already indicated above by this Court, no legal title has been passed to the Plaintiff under Ex.A-1. In such a case, it cannot be said that the Plaintiff has been in possession and enjoyment over the Plaint Schedule Property by virtue of Ex.A-1. Further, when the 1st Defendant is claiming possession over the Plaint Schedule Property by virtue of Decree in OS.48/1997 and delivery of possession recorded in

EP.57/2008, it is for the Plaintiff to establish with documentary evidence to

show that he has been in possession and enjoyment of the Plaint

Schedule Property by virtue of Ex.A-1. Furthermore, PW-1 has not filed any document such as electricity bills or other document to say that he

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has raised shed in the Plaint Schedule Property. In the absence of any such document from the end of the Plaintiff, it cannot be said that the

Plaintiff has been in lawful possession and enjoyment over the Plaint

Schedule Property.

10.13All the above attending circumstances leads to conclude that the Plaintiff failed to establish his title and interest over the Plaint

Schedule Property and also could not establish his lawful possession and enjoyment over the same. Accordingly, these two issues are answered in favor of the Defendants and against the Plaintiff.

11. ISSUE No.2 : Whether the Plaintiff is entitled for Declaration of title as prayed for ?

&

ISSUE No.5 : Whether the Plaintiff is entitled for Declaration of

title as prayed for ?

In view of the observations and findings of this Court at

Issues 1 & 3, it is evident that the Plaintiff could not establish legal title and lawful possession over the Plaint Schedule Property. So, this Court is of the considered opinion that the Plaintiff is not entitled to the relief of

Declaration as prayed for. Accordingly these two issues are answered in favor of the Defendants and against the Plaintiff.

12. ISSUE No.4 : Whether the Plaintiff is entitled for Permanent

Injunction as prayed for ?

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In view of the observations and findings of this Court at

Issues 1 & 3, it is evident that the Plaintiff could not establish legal title and lawful possession over the Plaint Schedule Property. So, this Court is of the considered opinion that the Plaintiff is not entitled to the relief of

Permanent Injunction as prayed for. Accordingly this issue is answered in favor of the Defendants and against the Plaintiff.

13. IN THE RESULT, the Suit is Dismissed with Costs.

Dictated to the Stenographer Grade-III, transcribed by her, corrected and

pronounced by me in the open Court on this the 22 nd day of December, 2025.

RADHADigitally signed by RADHA

KRISHNAKRISHNA

MURTHY ANDE

MURTHY Date: ANDE2025.12.22 15:12:53 +0000

VII ADDITIONAL CIVIL JUDGE (SD),

FAC V ADDITIONAL CIVIL JUDGE (SD),

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF FOR DEFENDANTS

PW-1Puthendurayil Kuriakose Jose (P.K.Jose) PW-2BgayanaBabuPrasad (eschewed)-NONE- PW-3Kondabattula Lakshminarayana PW-4Arrikkat Joseph David(A.J.David)

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DOCUMENTS MARKED FOR PLAINTIFF

Sl.No. Date of Description of Document Document Ex.A-120.07.2005Registered Sale Deed Ex.A-219.07.2005Encumberance Certificate issued by SRO, Madhurawada in respect of Suit Schedule Property Ex.A-325.09.2004Registered Agreement of Sale with GPA Ex.A-417.03.1986Certified Copy of Registered Sale Deed executed in favour of Sri M.Jagannadham Naidu that it is a link document and original was not handover to him by his vendor and Certified copy of Sale deed (marked subject to objection) Ex.A-5DecreeandJudgmentin 29.03.2007O.S.48/1997 on the file of Jr. Civil

Judge, Bheemili

Ex.A-630.06.2008Registered Sale Deed Ex.A-704.12.2008Encumberance Certificate reflecting both the entries of Registered Sale Deed of D-1 as well of the Plaintiff Ex.A-825.11.2008Police report given to P.M. Palem Police Station by the Plaintiff

DOCUMENTS MARKED FOR DEFENDANTS

-NIL-

Digitally signed RADHA by RADHA

KRISHNAKRISHNA

MURTHY ANDE

MURTHY Date: ANDE2025.12.22 15:12:43 +0000

VII ADDITIONAL CIVIL JUDGE (SD),

FAC V ADDITIONAL CIVIL JUDGE (SD),

VISAKHAPATNAM.

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IV ACJ Court (SD) (FTC), VSP

OS.No.1018 of 2015

APVS010016842015

IN THE COURT OF THE IV ADDITIONAL CIVIL JUDGE

(SENIOR DIVISION) (FTC) VISAKHAPATNAM

PRESENT: SRI A.RADHA KRISHNA MURTHY

VII ADDITIONAL CIVIL JUDGE (SENIOR DIVISION)

FAC IV ADDITIONAL CIVIL JUDGE (SENIOR DIVISION)

VISAKHAPATNAM

MONDAY, THE SECOND DAY OF FEBRUARY

TWO THOUSAND AND TWENTY-SIX

o. 1018 OF 2015

ORIGINAL SUIT N

Between :

Thutta Rama Rao… Plaintiff

A n d

1. P.Rama Raju

2. Vigneswara Constructions rep. by its Proprietor Penmatsa Rama Raju

3. The Commissioner, GVMC, Visakhapatnam.

4. The Zonal Commissioner, Zone IV, GVMC, Gnanapuram, Visakhapatnam

5. The Asst. City Planner, Zone-IV, GVMC, Gnanapauram, Visakhapatnam.

… Defendants

The Suit coming today before me for final hearing in the presence of Sri N.Sanni Babu, learned Counsel for Plaintiff and of Sri M.N.Aditya and Sri D.Uma Rajya Lakshmi, Learned Counsels for Page 1 of 17

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OS.No.1018 of 2015

Defendants 1 & 2 and Defendants 3 to 5 have remained exparte, upon hearing both sides, considering the material available on record, this Court delivered the following:

J U D G M E N T

This is a Suit filed for recovery of vacant possession of property shown as ABCD in the Rough Sketch after removal of constructions made by the Defendant No.1, for Mandatory Injunction directing the Defendants 3 to 5 to remove three big gates and closing of canal, for costs and for such other reliefs.

2. CASE OF THE PLAINTIFF SUCCINCTLY :

The Plaintiff is a member of Non-Gazetted Government

Officers' Co-operative House Building Society Limited No.1162, which was the oldest co-operative house building Society registered under Co- operative Societies Act prior to advent of GVMC1 and VUDA2, and it is a service-oriented Society. The said society had allotted Plot No.73A in

Survey No.14 & 13P in Kapparada Village to the extent of 230 square yards on 15.11.1994 to the Plaintiff. The said society obtained a Plan from

Special Officer ULC, Visakhapatnam on 03.11.2005, which was signed by the Special Officer ULC-I, Special Officer ULC-II and Deputy Inspector of

Surveyor, Visakhapatnam, in which 33 feet road was shown towards 1Greater Visakhapatnam Municipal Corporation 2Visakhapatnam Urban Development Authority Page 2 of 17

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Western side of Plot No.73A & 74A. As per Topographical Sketch, Both those flats are situated towards Western side of Plot No.73 & 74.

2.2The Defendants No.3 to 5 have approved the Plan in the name of Defendant No.1 by showing 60 feet road towards Western side of

Plot No.73 and 74 and the Defendant No.1 constructed flats by violating rules and regulations and norms and the Plaintiff in number of occasions approached the Defendants No.3 to 5 and bring the violations. But, the

Defendants No.3 to 5 did not take any action against the Defendants No.1 and 2 for the reasons best known to them. The Defendants No.1 & 2 have fixed three big gates for passage of cars. Though in the Plan one gate was shown and the 1st Defendant constructed compound wall and canal. After encroached the Plaintiff’s site in March 2015 without any right whatsoever and Plaintiff has sent a Registered Lawyer's Notice on 04.05.2015 to all the Defendants. The Defendants No.2 to 4 have received the same and the Defendant No.3 has got issued a Reply Notice with all false contentions. Hence the Plaintiff has filed this Suit.

3.Having received the Summonses, the Defendants 1 & 2 have made their appearance through Counsel. But, the Defendants 3 to 5 did not attend before the Court and hence they were set ex-parte.

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4. CASE OF THE DEFENDANTS 1 & 2 IN A NUTSHELL :

The 1st Defendant has filed Written Statement and the 2nd

Defendant adopted the same. The Defendants 1 & 2 have denied the material contents of the Plaint. The 1st Defendant is a Proprietary concern carrying on the work of development of the properties and construction of multi-storied residential complexes. The 1st Defendant entered into a

Development Agreement – cum - Irrevocable Power of Attorney with

Smt.Barnala Bhagyalakshmi W/o.Ananda Rao and Machetti Sri Ramulu on 19.02.2011 for construction of residential complex in Plot No.73 and 74 of NGGO's layout, Kapparada Village, In pursuance thereof, the Defendant

No.1 has applied for approval of the Plan from the Defendants No.3 to 5 and it was duly approved and thereafter he has started construction. The

Defendant No.1 completed the complex and obtained occupancy

Certificate dated 15.03.2014. The Western side of the Schedule Property is 60 feet wide road and it is born out in the Master Plan as well. The Plaintiff has been laying a claim that he has purchased the property said to have been situated on the Western side of the road from a Co-operative Society.

The Plaintiff has been alleging that the 1st Defendant shown the Western portion of the residential complex as road alleged to be his property. The 1st Defendant learnt that the said Society, while laying lay out, shown the plot number of the Plaintiff herein in the said 60 feet road. Thus, the property if any of the Plaintiff overlapped over the said 60 feet road.

Hence, the grievance of the Plaintiff if any should be directed towards the

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society for the said anomaly and not towards this Defendant or the owners of the flats.

4.2The Defendants also learnt that the Plaintiff submitted an application for construction of ground floor ACC sheet roof building in the alleged plot number 73A and it has been rejected by the 3rd Defendant vide

Note BA 13472/2013/ACP-IV dated 12.07.2013 on the ground that it is within the purview of Urban Land Ceiling and he is lying in Master Plan of 60 feet road. Then, the Plaintiff herein has started to harass the

Defendants by asking for various details regarding the approval Plan etc., and the 1st Defendant declined to furnish the same. The owners of the flats are necessary parties to the proceedings, as each of them own an undivided share of the property wherein the residential complex was constructed. The Defendants denied the claim of the title of the Plaintiff or his vendors. Therefore, the Plaintiff should file a Suit for declaration of title and without which he cannot seek for eviction and recovery of the property.

Finally, the Defendants sought for dismissal of the Suit with exemplary costs.

5. ISSUES :

As both the parties did not arrive at settlement under Section 89 of CPC, the following issues have been settled for trial.

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1. Whether the Plaintiff is entitled for recovery of vacant

possession of Plaint “B” Schedule Property after

removal of constructions raised by Defendant No.1?

2. Whether the Plaintiff is entitled for Mandatory Injunction as prayed for?

3. Whether the Suit is bad for non-joinder of necessary

parties, as stated in the Written Statement?

4. Whether Suit is not maintainable under law since the

Plaintiff sought for recovery of disputed property

without seeking Declaration of his right over the

Plaint “B” Schedule Property?

5. To what relief?

6.At the stage of trial, this Suit has been transferred to this Court from the Court of VI Additional Senior Civil Judge, Visakhapatnam as per the Proceedings of the Hon'ble Principal District Judge dated 20.03.2020 vide Dis No.1930/2020.

7. TRIAL PROCEEDINGS :

During the course of trial, the Plaintiff examined himself as

PW-1 and exhibited Ex.A-1 to Ex.A-25. On the other hand, the Defendants 1 and 2 did not adduce any evidence despite granting more than sufficient time and hence their evidence has been closed. The testimony of PW-1 is very much available on record. in the form of deposition, and it is not reproduced here to avoid prolixity.

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8.Heard the arguments of learned Counsel for the Plaintiff and learned Counsel for the Defendants 1 and 2.

9. Perused the material available on record.

10. ISSUE No.3 : Whether the Suit is bad for non-joinder of necessary parties as stated in the Written Statement ?

As could be seen from the Written Statement, the Defendants 1 and 2 have specifically taken the defence that the owners of the flats are necessary parties to the Suit as each of them have undivided share of the property wherein the residential complex was constructed.

10.2The learned Counsel for the Plaintiff submitted that the flat's owners are not necessary parties since the 1st Defendant occupied the

Plaint “B” Schedule Property and raised the construction.

10.3According to the evidence of PW-1, the 1st Defendant did not follow the rules and regulations while constructing the said apartment.

PW-1 also deposed that the 1st Defendant constructed a canal and compound wall in the month of March by encroaching the Plaint “B”

Schedule Property. It is the further evidence of PW-1 that the 1st Defendant also constructed three big car gates to the compound wall towards

Western side of the apartment.

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10.4During the course of cross examination, PW-1 categorically deposed that the road on Western side of Apartment complex is under usage and the said road extends for about 8 more plots. PW-1 further testified that the 1st Defendant obtained a Development Agreement from one B. Ananda Rao who is the owner of Plot No.73 and M.Sriramalu who is the owner of Plot No.74 and they are not added as parties to the Suit.

PW-1 further admitted that the Plot numbers 73 & 74 were converted into an Apartment Complex and Occupancy Certificates were issued in favour of respective owners.

10.5Thus, from the above evidence of PW-1, it is very clear that the 1st Defendant completed the apartment complex, it was under usage and occupancy certificates were also issued in favor of respective flat owners. It is settled legal principle that in an apartment every flat owner is having an undivided and unspecified share over the common areas like roads and terraces. As rightly contented by the learned Counsel for the

Defendants 1 & 2, the Plaintiff has filed this Suit for Mandatory Injunction directing the Defendant No.1 to remove the road. When such is the case, in the opinion of this Court, the flat owners become necessary parties to the Suit to adjudicate the Suit claim in a proper and effective manner. But, the Plaintiff did not had the owners of the flats. Therefore, this Court is of the considered opinion that the Suit is bad for non-joinder of the flat owners. Accordingly, this issue is answered in favor the Defendants and against the Plaintiff.

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11. ISSUE No.4 : Whether the Suit is not maintainable under since the

Plaintiff sought for recovery of disputed property without seeking

Declaration of his right over the Plaint “B” Schedule Property?

Learned Counsel for the Plaintiff submitted that the Plaintiff need not seek the the relief of Declaration of his right over the Plaint “B”

Schedule Property since there is no evidence from the end of the

Defendants to substantiate their contention.

11.2It is true, as rightly contented by the learned Counsel for the

Plaintiff, the Defendants did not step into witness box and offered themselves for cross-examination to substantiate their contention. But, in the Written Statement, the Defendants specifically took the defence that the Plaintiff has to seek the relief of Declaration of his right over the Plaint

Schedule Property since they have denied the title of the Plaintiff.

11.3In Sopanrao and Ors. vs. Syed Mehmood and Ors 3 the three-Judge bench of Hon'ble Supreme Court reiterated the position by holding that “In a Suit filed for possession based on title

the Plaintiff is bound to prove his title and pray for a

Declaration that he is the owner of the Suit land because

3MANU/SC/0872/2019 : 2019 INSC 719 Page 9 of 17

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his Suit on the basis of title cannot succeed unless he is

held to have some title over the land (emphasis supplied).

11.4Admittedly, the Plaintiff did not seek the relief of Declaration of his right over the Plaint Schedule Property. According to the evidence of

PW-1 coupled with Ex.A-3, it is evident that prior to filing Suit, PW-1 has got issued a Legal Notice under Ex.A-3 to the Defendants 1 to 4 wherein he categorically stated that the 1st Defendant made construction by violating the rules and regulations. It is also evident from Ex.A-7 that the 4th

Defendant has got issued Reply Notice, inter-alia, stating that it had accorded permission for construction of residential apartment building consisting of G+4 upper floors in the place of old building bearing number 37-12-26 in Plots No.73 & 74 of Kapparada Village in favour of Defendant

No.1 by showing 60 feet road as Western boundary which exists on ground. Thus, the contents of Ex.A-7 deny the title of the Plaintiff over Plot

No.73A.

11.5It is true as rightly contented by the learned Counsel for the

Plaintiff, from Ex.A-10 to Ex.A-12, it is evident that the Suit in

OS.No.2008/2014 has been Dismissed for default. However, the contents

of Ex.A-9 = Ex.A-13 reveals that prior to filing Suit itself, PW-1 has filed a

Protest Petition before the District Registrar & Inspector of Registration

Offices, Visakhapatnam for Cancellation of Document No.467 of 2011 as it

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was fraudulent Registration. At un-numbered Para 2 of 2nd Page of Ex.A-9, the District Registrar made an observation that PW-1 has been earmarked to Plot No.73A (to be allotted) comprised in Survey Nos.14 & 13 and it will be allotted after clearance received by Government and approval of

Revised Layout by VUDA. PW-1 has not filed any documents before the

Court that the Government has made clearance and VUDA also issued

Revised Layout and thereby the Plot No.73A has been allotted to him.

Further, the District Registrar although observed that there is a violation, dismissed the said Protest Petition by observing that he has no authority to cancel the document. Further, from the evidence of PW-1 coupled with

Ex.A-13 to Ex.A-25, it is very specific case of the Defendants that in the master Plan of VUDA also 60 feet road is shown as Western side for the

Plot Nos.73 & 74. Thus, the Plaintiff has very much knowledge that the

Defendants have denied the title of the Plaintiff in respect of the Plaint “B”

Schedule Property even prior to filing of Suit itself. Despite the same, the

Plaintiff did not seek the relief of Declaration.

11.6Therefore, in the light of above Judicial precedent, and in view of the above discussion, this Court is of the considered opinion that the

Plaintiff cannot maintain this Suit for recovery of possession and for

Mandatory Injunction without seeking the relief of Declaration of Title in respect of the Plaint “B Schedule Property. Accordingly, this issue is answered in favour of the Defendants and against the Plaintiff.

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12. ISSUE No.1 :Whether the Plaintiff is entitled for recovery of

vacant possession of Plaint B-Schedule Property after removal of

constructions raised by the Defendant No.1 ?

The learned Counsel for the Plaintiff submitted that from the evidence of PW-1 coupled with Ex,A-1 to Ex.A-25, it is evident that the 1st

Defendant occupied the Plaint “B” Schedule Property and hence the

Plaintiff is entitled for recovery of vacant possession of the same.

12.2The Plaintiff, as PW-1 has filed Chief Examination Affidavit by adverting to the Plaint contents and hence the Chief Examination Affidavit of PW-1 is nothing but replica of the Plaint. It is the evidence of PW-1 that the Plaint “A” Schedule Property has been allotted to him and it is reflecting in Ex.A-1. PW-1 also deposed that in the Topographical Sketch also, 33 Feet Road was shown towards Western Side of Plot Nos.73A & 74A. In order to buttress those contentions, the Plaintiff has exhibited

Ex.A-1, Ex.A-2, Ex.A-15 & Ex.A-18. Ex.A-1 is the approved Plan of

NGGOs Co-operative Housing Building Society and it was signed by the

Special Surveyor Urban Land Ceiling, Visakhapatnam. According to the evidence of PW-1 coupled with Ex.A-1, it is evident that 33 feet road is shown on the Western side of Plot Nos.73A & 74A. Ex.A-2 is the G.O.Ms

No.998 dated 16.07.2007, wherein the Government of Andhra Pradesh

Allotted the surplus land under Section 23(4) of the Urban Land (C & R)

Act, 1976 the excess land vested with Government Under Section 10(3) of

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the Act as shown in column 4 to 6 of Annexure to the said G.O to the parties in occupation, who are members of the NGGO's Co-operative

Housing Building Society Limited, Visakhapatnam and whose names are shown in column number 3 of the said annexure as they have paid the amounts prescribed in terms of the G.O.Ms.No.445 dated 29.07.2002 and the details of which are indicated in columns 7 to 9 of the annexure. Thus, according to the contents of Ex.A-2, the Plots were allotted to the persons whose names were reflecting in the Annexure. But, the Plaintiff did not file any such Annexure. Further the contents of Ex.A-15 reveals that on 28.02.2017 the Government of Andhra Pradesh has issued GO by allotting

Surplus land to 157 persons whose names were mentioned in the

Annexure and no such Annexure has been enclosed to Ex.A15 to facilitate the Court to know whether PW-1 was allotted the Plaint “A” Schedule

Property. It is true as rightly contented by the learned Counsel for the

Plaintiff, the Secretary of the NGGO's Co-operative Housing Building

Society Limited has issued a Representation to the Defendant No.3 to direct the Defendant No.1 to close down the car gates and allow peaceful enjoyment of plot owners of Plot No.73 & 74A and allow the owner of Plot

Nos.73A & 74A to protect their plots by erection boundary walls or fencing to save them from unauthorised encroachments. But Ex.A-18 does not disclose whether the Plaint “A” Schedule Property has been allotted to

PW1. Therefore, Ex.A-1, Ex.A-2, Ex.A-15 & Ex.A-18 are not helpful to the

Plaintiff to say that he was allotted the Plaint “A” Schedule Property.

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12.3Although PW-1 testified that he was allotted the Plaint “A”

Schedule Property by the NGCO's Co-operative House Building Society, during the course of cross examination he categorically admitted that the society has not executed any Registered Sale Deed in his favour. PW-1 further deposed that none of the allottees were got registered sale deeds from the society. But, in the absence of any Allotment Letter said to be executed by the Society in favor of the Plaintiff in respect of the Plaint “A”

Schedule Property, this Court is unable to say that the Plaintiff was allotted the Plaint “A” Schedule Property. Further at Issue No. 4, this Court has held that the Plaintiff cannot maintain the Suit without seeking the relief of

Declaration of his right in respect of Plaint “B” Schedule Property.

12.4All the above-attending circumstances lead to conclude that the Plaintiff is not entitled to the relief of Recovery of Possession as prayed for. Accordingly, this issue is answered in favour of the Defendants and against the Plaintiff.

13. ISSUE No.2 : Whether the Plaintiff is entitled for Mandatory

Injunction as prayed for ?

In view of the observations and findings of this Court at Issues 1 to 3, it is evident that the Plaintiff cannot maintain the Suit without seeking the relief of declaration of his right in respect of Plaint B Schedule

Property and the Plaintiff could not establish that the Defendant No.1 has

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occupied the the Plaintiff's Plot. Therefore, this Court is of the considered opinion that the Plaintiff is not entitled to the relief of Mandatory Injunction as prayed for. Accordingly this issue is answered in favour of the

Defendants and against the Plaintiff.

14. ISSUE No.5 : To what relief ?

In view of the observations and findings of this Court at Issues 1 to 4, this Court holds that Suit of the Plaintiff is liable to be dismissed with costs.

15. IN THE RESULT, the Suit is Dismissed with Costs.

Dictated to the Stenographer Grade-III, transcribed by her, corrected and

pronounced by me in the open Court on this the 2 nd day of February, 2026

Digitally Signed by

RADHA KRISHNARADHA KRISHNA MURTHY ANDE

Date: 2026.02.02 16:38:34 +0530

MURTHY ANDE

VII ADDITIONAL CIVIL JUDGE (SD),

FAC IV ADDITIONAL CIVIL JUDGE (SD),

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF FOR DEFENDANTS

PW-1Thutta Rama Rao-NONE-

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DOCUMENTS MARKED FOR PLAINTIFF

Sl.No. Date of Description of Document Document Ex.A-103.11.2005Approved Plan Ex.A-216.07.2007G.O.Ms.No.998 Ex.A-304.05.2015Office copy of Registered Lawyer Notice Ex.A-4-Postal acknowledgment card of D3 Ex.A-5-Postal acknowledgment card of D5 Ex.A-605.05.2015Postal acknowledgment card of D4 Ex.A-719.05.2015Letter addressed by D4 Ex.A-8-Returned Postal cover of D1 Ex.A-930.01.2017Orders of District Registrar, Visakhapatnam Ex.A-10-Certified copy of Plaint and Schedule in O.S.No.2088/2014 on the file of Principal Civil Judge (Senior Division), Visakhapatnam Ex.A-1103.09.2019Certified copy of Decree and Judgment in O.S.No.2088/2014 Ex.A-12-Copy of Written Statement in

O.S.2088/2014

Ex.A-1330.01.2017Orders of District Registrar and Inspector of Registration Offices, vide Proceedings No.870/2016 by G1 Ex.A-1425.11.2014Endorsement of the Public InformationOfficer,GVMC, Visakhapatnam Ex.A-1528.02.2007Copy of the G.O.Ms.No.242 Ex.A-1604.06.2014Endorsement of Public Information Officer, GVMC, Visakhapatnam

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Ex.A-1703.02.2014Information furnished by the ExecutiveEngineer,Zone-IV, GVMC, Visakhapatnam Ex.A-1819.04.2014Letter of NGGOs Cooperative House Building Society Limited along with rough sketch Ex.A-1914.05.2015EndorsementofGVMC, Visakhapatnam Ex.A-2030.06.2015Endorsement of Public Information Officer, GVMC, Visakhapatnam Ex.A-2102.03.2015Office copy of letter by the Plaintiff Ex.A-2204.04.2015Office copy of letter by the Plaintiff Ex.A-2318.12.2019Notice issued to the Commissioner, GVMC, Visakhapatnam Ex.A-2406.08.2016Letter of Public Information Officer of VUDA along with copies of documents Ex.A-25-Endorsement of Joint Collector ULC, Visakhapatnam along with copies of documents

DOCUMENTS MARKED FOR DEFENDANT

-NIL- RADHA KRISHNADigitally Signed by

RADHA KRISHNA MURTHY ANDE

MURTHY ANDE

Date: 2026.02.02 16:37:45 +0530

VII ADDITIONAL CIVIL JUDGE (SD),

FAC IV ADDITIONAL CIVIL JUDGE (SD),

VISAKHAPATNAM.

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APVS010000582009

IN THE COURT OF THE III ADDITIONAL CIVIL JUDGE (SENIOR

DIVISION) (FTC) AT VISAKHAPATNAM

PRESENT: SRI A.RADHA KRISHNA MURTHY

VII ADDITIONAL CIVIL JUDGE (SENIOR DIVISION)

FAC III ADDITIONAL CIVIL JUDGE (SENIOR DIVISION)

VISAKHAPATNAM

MONDAY, THE SIXTH DAY OF OCTOBER

TWO THOUSAND AND TWENTY-FIVE

o . 357 OF 2009

ORIGINAL SUIT N

Between :

1. Penumatsa Venkata Subrahmanya Chalapathi Javaharlal

2. Penumatsa Satyanarayana Raju

3. Penumatasa Kumari

4. Uppalapati Lakshmi … Plaintiffs

A n d

Simhachalam Devasthanam, rep. by its Executive Officer … Defendant

The Suit coming today for final hearing before me in the presence of Sri G.Rama Chandra Raju and Sri V.Sarada, learned Counsels for Plaintiff and of Sri M.N.Aditya and Smt.D.Uma Rajya Lakshmi, Learned Counsels for Defendant, upon hearing both sides, considering the material available on record, this Court delivered the following:

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J U D G M E N T

This is a Suit filed by the Plaintiff against the Defendant

Devasthanam for Permanent Injunction restraining the Defendant-

Devasthanam, its officials, agents, men or whoever acts on their behalf, from ever interfering with the Plaintiffs’ peaceful possession and enjoyment of the Plaint Schedule Properties, in any manner whatsoever, including demolition of any part of the structures lying in the Plaint

Schedule Properties and for costs of the Suit and for such other reliefs.

2. CASE OF THE PLAINTIFFS SUCCINCTLY :

The 1st Plaintiff is the absolute owner of Item No.1 of the

Plaint Schedule Property having purchased the same from his vendor i.e.,

Srinivasa Co-Operative House Building Society Ltd., rep.by its President

A.Narasimha Raju through Registered Sale Deed dated 06.02.1982 vide document No.1067/1982.

2.2The 2nd Plaintiff is the son, 3rd Plaintiff is the widowed daughter-in-law, 4th Plaintiff is the daughter of late Penumatsa

Suryanarayana Raju and his wife late Penumatsa Sundaramma and they are the legal heirs to the estates of Penumatsa Suryanarayana Raju and

Penumatsa Sundaramma and become absolute owners of house site plot

No.18 measuring 359 square yards.

2.3Smt.Penumatsa Sundaramma had purchased Item No.2 of the Plaint Schedule Property from her vendor Smt.Penumatsa Uma

Parvathi, who is the daughter of Ch.Rama Raju through Registered Sale

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Deed dated 20.10.1984 vide document No.12879/1984. The vendor of

Penumatsa Sundaramma has purchased the Item No.2 of Schedule

Property from her vendor i.e. Srinivasa Co-Operative House Building

Society Ltd., through Registered Sale Deed dted 06.02.1982 vide

Document No.1887/02.

2.4The Items No.1 & 2 of Plaint Schedule Properties are belonging to Plaintiffs 1 to 4. The 1st Plaintiff and the mother of 2nd Plaintiff got removed existing thatched huts and initiated construction of pucca

RCC structure in their respective plots. The husband of the said

Sundaramma predeceased to her. On 23.03.2009, officials of the

Defendant Devasthanam came to the Plaint Schedule Properties, caused strong obstruction to the construction being carried out by the Plaintiff through their workers. Hence, the Suit.

3. C ASE OF THE DEFENDANT IN A NUTSHELL :

The Defendant filed Written Statement and denied the material contents of the Plaint. The Plaintiffs have purchased the properties in Resapuvanipalem Village covered by Survey No.7 and attempting to encroach into the land of Devasthanam situated in

Adivivaram Village covered by Survey No.275. The Plaint Schedule

Properties are situated in Survey No.275 of Adivivaram belonging to

Simhachalam Devasthanam. The Society unauthorisedly prepared a layout overlapping the land in Survey Number 275 of Adivivaram. The

Northern boundary of layout is in dispute with the Devasthanam. The

Plaintiffs have purchased the Plaint Schedule Properties in the year 1978

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and kept quiet without construction. The Suit is bad for non-joinder of necessary parties to the Suit. The Plaintiffs attempted to trespass into the

Devasthanam land covered by Survey number 275 of Adivivaram Village and obtained injunction orders against the Defendant-Devasthanam.

3.2The land in Survey Number 275 of Adivivaram has been classified as Green Belt in the master plan of VUDA and there are interim stay orders against VUDA and GVMC not to grant any permission to any individual for construction on the land covered by Survey number 275 of

Adivivaram. The Defendant filed W.P.No.4377 of 2009 against Survey

Department to complete the survey work of the Devasthana lands and to fix up boundaries and the Hon’ble High Court issued interim directions on 23.03.2009. Finally, the Defendant prayed the Court to dismiss the Suit.

4. I S S U E S :-

As both the parties did not arrive at settlement Under Sec.89 of CPC, basing on the pleadings of both parties, my learned Predecessor has settled the following issues for trial.

1)Whether the Plaintiff is in possession and enjoyment

of the Plaint Schedule Property as on the date of filing

of the Suit ?

2)Whether the Plaintiff is entitled for Permanent Injunction as prayed for?

3)Whether the Suit is maintainable?

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4)Whether the Suit Property is situated in Survey

No.275 of Adavivaram or Survey No.7 of

Resavanipalem Village?

5)To what relief ?

5.At the stage of trial, this case has been transferred to this

Court from the Court of Principal Senior Civil Judge, Visakhapatnam as per the Proceedings dated 16.07.2010 in Dis.No.4278 of the Honourable

Principal District Judge, Visakhapatnam, for disposal of according to law.

6. TRIAL PROCEEDINGS :

During Trial, the 1st Plaintiff is examined himself as PW-1 and got examined the 2nd Plaintiff as PW-2 and one Penumatsa Praveen

Kumar as PW-3 and got exhibited Ex.A-1 to Ex.A-22.

6.2Refuting the testimonies of PW-1 to PW-3, the Assistant

Executive Officer of Defendant-Temple by name V.B.V.Ramana Murthy is examined as DW-1 and got examined the Assistant Executive Officer of

Simhachalam by name N.Anand Kumar as DW-2 and exhibited Ex.B1 to

Ex.B-3 through DW-2 on behalf of Defendant Devasthanam.

6.3The testimonies of PW-1 to PW-3and DW-1 & DW-2 are very much available on record in the form of depositions and they are not reproducing here to avoid prolixity.

7.Heard the learned counsel for the Plaintiff and learned

Counsel for Defendant temple. Perused the material available on record.

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8. ISSUE No.4 : Whether the Suit Property is situated in Survey

No.275 of Adavivaram or Survey No.7 of Resavanipalem Village?

This issue casts burden on the Defendant since as could be seen from the Written Statement, it is the specific contention of

Defendant’s temple that the Plaint Schedule Properties have been located in Survey No.275 of Adavivaram Village and it belongs to the

Defendant.

8.2In order to discharge the initial burden cast upon the

Defendant, the Defendant has placed reliance on the testimonies of DW-1 and DW-2 coupled with Ex.B-1 to Ex.B-3. Ex.B-1 is the True copy of

Rough Sketch of Survey Number 275 of Adavivaram Village and Survey

Number 7 of Resapuvanipalem Village. Ex.B-2 is the G.O.Ms.406 dated 20.06.2000 and Ex.B-3 is the Certified Copy of Orders of Hon’ble High

Court dated 28.09.2000 in Writ Petition No. 32800 of 1997.

8.3The Assistant Executive Engineer of the Defendant’s temple has stepped into witness box as DW-1 and filed Chief Examination

Affidavit, inter-alia, stating that the Plaintiffs have attempted to encroach into the appurtenant land covered by Survey Number 275 and it has been classified as “Green Belt” area in the master plan of VUDA. DW-1 further deposed that M/s.Srinivasa Co-Operative House Building Society represented by its President A.Narasimha Raju filed OS.6/1998 on the file of this Court and the dispute therein is relating to the Norther boundary of land in Survey Number 7 of Resapuvanipalem, the Defendant contested

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the Suit and it was dismissed on 15.10.2005. DW-1 further deposed that

Srinivasa Co-Operative House Building Society preferred AS.319/2006 on the file of Hon’ble VII Additional District Judge, Visakhapatnam and on 07.09.2007, the Appeal has been dismissed by observing that the Decree and Judgment of Lower Court in OS.6/1998 is confirmed and Plaintiffs’

Society is directed to pay Rs.10,000/- to the Defendant for filing false Suit and making false litigation.

8.4During the course of cross-examination, DW-1 admitted that no document is filed by the Defendant to show that the Plaint Schedule

Property is in Survey number 275 of Adavivaram Village and it belongs to the Defendant. DW-1 further deposed that he has not filed Certified

Copies of Judgments in OS.6/1998 & AS.319/2006. DW-1 further admitted that the Plaintiffs herein are not a party to those Suits. The

Defendant has not offered any explanation for not filing Certified Copies of the Judgments in both the Suits. It may be true that the dispute in

OS.6/1998 is relating to the Northern boundary of Survey Number 7 of

Resapuvanipalem Village which is located in Survey Number 275 of

Adavivaram Village according to the Defendant, but in the absence of the

Judgment in OS.6/1998 & AS.319/2006, the defence taken by the

Defendant has remained as a statement without any documentary proof.

When it is the specific case of Defendant that the Plaint Schedule

Property though mentioned as Survey number 7 of Resapuvanipalem

Village, it has been located in Survey number 275, the Defendant would have filed the Judgment copies in OS.No.6/1998 & AS.319/2006. Non- filing of those documents is fatal to the case of the Defendant.

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8.5Be that as it may, the Defendant has got examined DW-2 and got exhibited Ex.B-1. Admittedly, Ex.B-1 is the Rough Sketch prepared by the Surveyor of Defendant’s Temple and therefore, it is the self-serving document prepared by Defendant as rightly pointed out by the learned

Counsel for the Plaintiff. Moreover, DW-2 categorically deposed in his cross-examination that he pleaded ignorance regarding the notice was given to the Plaintiff before surveying two survey numbers and Plaint

Schedule Properties were located within the limits of Visakhpatnam

Municipal Corporation. DW-2 pleaded ignorance whether Visakhpatnam

Municipal Corporation records and revenue records were verified before surveying the land in Survey number 275 and Survey Number 7.

DW-1 also pleaded ignorance as to whether the Surveyors from

Visakhapatnam Municipal Corporation and Revenue Department of

Visakhapatnam Urban were present at the time of preparing Ex.B-1.

Therefore, Ex.B-1 cannot be believed.

8.6Coming to Ex.B-2 & Ex.B-3, Ex.B-3 is the orders of Writ

Petition No.32800/1997 filed by the Defendant against the Commissioner of Survey Settlements and Land Records, Hyderabad, MRO,

Visakhapatnam and District Collector, Visakhapatnam questioning the proceedings of the Commissioner, Survey Settlement and Land Records of A.P., Hyderabad in case No.V2/862/1996 dated 23.10.1997 and the

Hon’ble High Court was pleased to allow the Writ Petition in terms of the

Joint Memo filed by both the Executive Officer and the Collector and also in terms of G.O.Ms.No.406 dated 20.06.2000. Thus, in Ex.B-3, there is reference of Ex.B-2. Ex.B-2 has been issued in obedience to the orders

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of the Hon’ble High Court in Writ Petition No.32800/1997 and by virtue of the said G.O., the Commissioner, Endowments Department, Hyderabad is requested to take necessary expeditious followup action with reference to the Government decision and report the action to the Government. The

Defendant has not filed any record before this Court the follow up action taken by the Commissioner of Endowments or the Government in terms of G.O. Further, as rightly pointed out by the learned Counsel for the

Plaintiff, the Plaintiff is not a party to the Writ Petition. Therefore, Ex.B-2 &

Ex.B-3 are also not helpful to the Defendant to prove their contention.

8.7Be that as it may, basing on the Petition filed by the

Defendant, Advocate-Commissioner has been appointed in I.A.35/2022 for localization of Plaint Schedule Property and the Commissioner has returned the warrant without execution for various reasons. However,

PW-1 has exhibited Ex.A-6 to Ex.A-8 (they are exhibited again as

Ex.A-17 to Ex.A-19) which are the Certified Copies of Decree and

Judgments in OS.1803/2002, OS.193/2002, AS.266/2009 to say that the

Survey Number 7 of Resapuvanipalem Village is different to that of the

Survey number 275 of Adavivaram Village. Of course, as rightly pointed out by the learned Counsel for the Defendant, the Plaintiffs in this case are not parties to all the Suits. But, as could be seen from Schedule annexed to Decrees in those Suits, the dispute is in relating to the Survey number 7 of Resapuvanipalem Village and Survey Number 275 of

Adavivaram Village. In those cases also, the Defendant has taken the same defence to that of the defence as taken in this Suit. All the Suits were Decreed in favor of the Plaintiffs. Of course, mere decreeing those

Page 9 of 17

III ACJ Court (SD)(FTC), VSP

OS.No.357 of 2009

Suits is not a ground to grant the relief to the Plaintiffs. But, when the

Defendant has taken same defence in those Suits to that of the defence taken by it in the same Suit, the Defendant would have filed proper material before the Court to support its contention. In the absence of any such material before the Court, this Court is unable to accept the mere oral assertion of Defendant.

8.8All the above attending circumstances lead to conclude that the Defendant could not prove that the Plaint Schedule Survey Number 7 has been located in Survey number 275 of Adavivaram Village.

Accordingly, this issue is answered in favor of the Plaintiffs and against the Defendant.

9. ISSUE No.1 : Whether the Plaintiff is in possession and enjoyment

of the Suit Schedule Property as on the date of filing of the Suit ?

This issue casts burden on the Plaintiff according to Section 104 of the Bharatiya Sakshya Adhiniyam, 2023. In order to discharge the initial burden cast upon the Plaintiffs, the Plaintiffs have placed reliance on the testimonies of PW-1 to PW-3 coupled with Ex.A-1 to Ex.A-22.

The 1st Plaintiff as PW-1 filed Chief Examination Affidavit by adverting to the Plaint contents and hence, the evidence of PW-1 is nothing but replica of the Plaint. PW-1 testified that he purchased the Item No.1 of the

Plaint Schedule Property from his vendor Society through the Registered

Sale Deed dated 06.02.1982. PW-1 further stated that vendor of

Penumatsa Sundaramma had purchased the Item No.2 of the Suit

Schedule Property from Srinivasa Cooperative House Building Society

Page 10 of 17

III ACJ Court (SD)(FTC), VSP

OS.No.357 of 2009

Limited through the Registered Sale Deed dated 06.02.1982. To buttress those contentions, PW-1 has exhibited Ex.A-1 to Ex.A-5. Of course, it is the specific contention of the Defendant that there was previous dispute in OS.6/1998 in between the Defendant temple and Srinivasa

Co-Operative House Building Society regarding Survey number. But, as already indicated by this Court at Issue No.4 that the Defendant has not filed any material to substantiate his contention. In the absence of any such material contrary to Ex.A-1, Ex.A-5, Ex.A-15 & Ex.A-16, this Court has no other alternative but to believe those documents since they are

Registered Documents. Further, in order to establish the possession,

PW-1 has exhibited Ex.A-4, Ex.A-13 and Ex.A-14 which are the Electricity

Consumption bills and Receipts. Moreover, DW-2 categorically deposed in his cross-examination that as per Ex.B-1, there is a compound wall and

ACC Sheet Shed in the Plaint Schedule Property and the basic features of Plaint Schedule Property are correctly depicted in Ex.B-1. Further,

DW-1 stated in his cross-examination that Ex.A-22/Photographs contain the demolished shed in the Plaint Schedule Property. DW-1 further testified that he personally visited the Plaint Schedule Property, there is a shed and power supply in the Plaint Schedule Property and Property Tax is levied to the shed. Thus, all these admissions of DW-1 & DW-2 coupled with the evidences of PW-1 & Ex.A-2 to Ex.A-4 & Ex.A-12 to Ex.A-14 shows the possession of the Plaintiffs over the Plaint Schedule Property as on the date of filing of the Suit. Further, in view of the observations and findings of this Court at Issue No.4 that the Defendant could not prove that the Suit Schedule Properties are located in Survey number 275 of

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III ACJ Court (SD)(FTC), VSP

OS.No.357 of 2009

Adavivaram Village, this Court has no other alternative to accept the

Plaintiffs’ case.

9.2To establish the case of the Plaintiffs, PW-2 and PW-3 were examined and they have filed the Chief Examination Affidavit by supporting the case of the Plaintiffs on material aspects. During the course of cross-examination, PW-2 and PW-3 reiterated that the Plaintiffs are in possession of Item Nos.1 & 2 of Plaint Schedule Properties and denied the case of the Defendant. When the testimonies of PW-1 to PW-3 and DW-1 & DW-2 coupled with the documentary evidence under Ex.A-1 to Ex.A-22 cumulatively and carefully scrutinized, it is evident that the

Plaintiffs have succeeded in proving their possession and enjoyment over the Plaint Schedule Properties as on the date of filing of the Suit.

Accordingly, this issue is answered.

10. ISSUE No.2 : Whether the Plaintiff is entitled for Permanent

Injunction as prayed for ?

&

ISSUE No.3 : Whether the Suit is maintainable ?

Both these issues are answered together to avoid duplication in the appreciation of evidence.

10.2According to the testimonies of PW-1 to PW-3, the

Defendant’s authorities are trying to interfere with the Plaint Schedule

Property. As per the observations of this Court at Issue No.1, the possession of the Plaintiffs is established over the Plaint Schedule

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III ACJ Court (SD)(FTC), VSP

OS.No.357 of 2009

Properties as on the date of filing of the Suit. Further, PW-1 stated that on 23.03.2009, the officials of the Defendant obstructed the Plaintiffs from making constructions in the Plaint Schedule Properties. Of course, the

Defendant may say that the Plaint Schedule Properties have been located in Survey No.275 of Adavivaram Village belonging to the

Defendant, they have obstructed the Plaintiffs from making construction, but the Defendant has failed to establish his defence with proper material

before the Court. If at all, the Defendant establishes that the Plaint

Schedule Properties are located in Survey number 275 of Adavivaram

Village but not in Survey number 7 of Resapuvanipalem Village, certainly, the Defendant can obstruct the Plaintiffs from making further constructions. Assuming, arguendo, in future if it comes to light that the

Plaint Schedule Properties are located in Survey Number 275 of

Adavivaram Village but not in Survey No.7 of Resapuvanipalem Village, the Decree and Judgment granted by this Court in favor of the Plaintiffs do not prevent the Defendant to proceed in accordance with Law.

Therefore, this Court is of the considered opinion that the Plaintiffs can maintain Suit and they are entitled to the relief of Prohibitory Injunction but not for Permanent Injunction. Accordingly, these two issues are answered in favor of the Plaintiffs and against the Defendant.

11. ISSUE No.5 : To what relief ?

In view of the observations and findings of this Court at

Issues 1 to 4, this Court holds that the Suit of the Plaintiffs is liable to be decreed with costs.

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III ACJ Court (SD)(FTC), VSP

OS.No.357 of 2009

12. IN THE RESULT, the Suit is Decreed with Costs in favor of the Plaintiffs and against the Defendant by granting Prohibitory Injunction restraining the Officials of the Defendant-Temple from interfering with the lawful possession and enjoyment of the Items 1 & 2 of the Plaint

Schedule Properties. It is made clear that in future if it came into light that the Plaint Schedule Properties are in Survey No.275 of Adavivaram village, the Decree and Judgment cannot prevent the Defendant from proceeding in accordance with Law.

Typed to my dictation to the Stenographer Grade-III, corrected and pronounced by me in the open Court on this the 6 th day of October, 2025. RADHA Digitally signed by RADHA

KRISHNA

KRISHNA

MURTHYMURTHY ANDE

Date: 2025.10.06

ANDE 16:18:17 +0100

VII ADDITIONAL CIVIL JUDGE (SD),

FAC III ADDITIONAL CIVIL JUDGE (SD),

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS FOR DEFENDANT

PW-1Penumatsa VenkataDW-1V.B.V.Ramana Murthy Subrahmanya Chalapthi Jawaharlal

PW-2PenumatsaDW-2N.Anand Kumar Satyanarayana Raju

PW-3Penumatsa Praveen------ Kumar

Page 14 of 17

III ACJ Court (SD)(FTC), VSP

OS.No.357 of 2009

DOCUMENTS MARKED FOR PLAINTIFFS

Sl.No. Date of Description of Document

Document

Ex.A-106.02.1982Registered Sale Deed bearing No.1067/1982

Ex.A-211.05.2009Special Property Tax Notice issuedbyGVMC, Visakhapatnam

Ex.A-3-Property tax pass book

Ex.A-4-Electricity bill

Ex.A-5–Certified copy of Document bearing No.9837/1981

Ex.A-6-Certified copy of Decree and Judgment in O.S.1803/2002 on the file of II AJCJ Court, Visakhapatnam

Ex.A-7-Certified copy of Decree and Judgment in O.S.193/2002 on the file of JCJ Court, Bheemunipatnam

Ex.A-8-Certified copy of Decree and Judgment in A.S.266/2009 on the file of IV ADJ Court, Visakhapatnam

Ex.A-9-One CD (without tested and verified)

Ex.A-10-Death certificate of Smt. P.Sundaramma

Ex.A-11-Deathcertificateof Smt.P.Suryanarayana Raju

Page 15 of 17

III ACJ Court (SD)(FTC), VSP

OS.No.357 of 2009

Ex.A-12-Special Property Tax Notice issuedbytheGVMC, Visakhapatnam

Ex.A-13-Property Tax pass book

Ex.A-14-Electricity Bill

Ex.A-15-Certified copy of document bearing No.1083/1982

Ex.A-16-Certified copy of document bearing no.9387/1981

Ex.A-17-Certified copy of Decree and Judgment in O.S.1803/2002 on the file of II AJCJ Court, Visakhapatnam

Ex.A-18-Certified copy of Decree and Judgment in O.S.193/2002 on the file of JCJ Court, Bheemunipatnam

Ex.A-19-Certified copy of Decree and Judgment in A.S.266/2009 on the file of IV ADJ Court, Visakhapatnam

Ex.A-2020.10.1984Certified copy of Registered Sale Deed bearing No.12879

Ex.A-2102.04.2016Certified copy of endorsement of Joint Collector, Urban Land Cealing, Visakhapatnam along with G.O.Ms.No.1682, dated 09.11.1981 (Revenue)

Ex.A-22-One Photograph along with CD (without tested and verified the CD)

Page 16 of 17

III ACJ Court (SD)(FTC), VSP

OS.No.357 of 2009

DOCUMENTS MARKED FOR DEFENDANT

Sl.No. Date of Description of Document

Document

Ex.B-119.06.2009True copy of Rough sketch of S.No.275 of Adivivaram Village and S.No.7 of Resapuvanipalem (the original rough sketch is produced today, compared with the true copy and returned the same)

Ex.B-220-06-2000Copy of G.O.Ms.No.406 Revenue (Endowments-IV) Department

Ex.B-328.09.2000Certified copy of Orders of the

Hon’ble High Court of Andhra

Pradesh in W.P.No.32800/1997

Digitally signed RADHAby RADHA

KRISHNA

KRISHNA

MURTHY

MURTHYANDE

Date: ANDE 2025.10.06 16:18:09 +0100

VII ADDITIONAL CIVIL JUDGE (SD),

FAC III ADDITIONAL CIVIL JUDGE (SD),

VISAKHAPATNAM.

Page 17 of 17

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026

APVS010018082018

IN THE COURT OF THE V ADDITIONAL CIVIL JUDGE (SENIOR

DIVISION) (FTC) AT VISAKHAPATNAM

PRESENT: SRI A.RADHA KRISHNA MURTHY

VII ADDITIONAL CIVIL JUDGE (SENIOR DIVISION)

FAC V ADDITIONAL CIVIL JUDGE (SENIOR DIVISION)

VISAKHAPATNAM

THURSDAY, THE TWENTY-SIXTH DAY OF MARCH

TWO THOUSAND AND TWENTY-SIX

E A .No. 3/2025

In

N EP o . 2/2018

Between :

1. The State of Andhra Pradesh represented by the District Collector, Visakhapatnam, Collector’s Office, Visakhapatnam, A.P.

2. The Tahsildar, Visakhapatnam Rural Mandal, Visakhapatnam District, A.P. (Mandal Revenue Officer, Chinagadili, Old Dairy Farm, Visakhapatnam). … Petitioners/Judgment debtors A n d

1. S.S.Pasha, S/o. late S.G.Pasha, aged 52 years, resident of MIG 2/3, Pithapuram Colony, Visakhapatnam -3. … 1 st Respondent/ Decree holder

2. The Executive Engineer, Marketing, Visakhapatnam. … 2 nd Respondent/ 3 rd Judgment debtor (There is no 2nd Respondent herein even in E.A.1/2024 and EA.2/2004 returned as no such office, this Respondent add as

Page 1 of 12

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026 proforma party as per Decree, and no relief prayed against this Respondent)

This Execution Application coming today for reply arguments in the presence of Sri DVSK Vara Prasad, learned Additional Government Pleader for the Petitioners/Judgment Debtors 1 & 2; Sri K.Rama Kireeti and Sri D.Ketan, Learned Counsels for the 1st Respondent/Decree holder and none appeared for the 2nd Respondent/Judgment Debtor No.3, upon hearing both sides and considering the material available on record, the Court delivered the following:

:: O R D E R ::

This is a Petition filed by the Judgment debtors 2 & 3 Under

Section 47 and Section 151 of the Code of Civil Procedure, 1908 praying the

Court to adjudicate that the relief granted in the Decree is in the form of

Mandatory Injunction so that Article 135 of the Limitation Act come into play and the EP.2/2018 is filed beyond three years which is liable for dismissal, award costs and for such other reliefs.

2. CASE OF THE JUDGMENT DEBTORS 1 & 2 SUCCINCTLY:

The Execution Petition is filed for enforcement of the Mandatory

Injunction. The Article 135 of the Limitation Act, 1963 says that the EP is to be filed within three years from the date of decree. There is no Plaint

Schedule Property or EP Schedule Property and it is an imaginary. The 1st

Respondent/Decree holder using the Decree as a sword instead of a shield against the Petitioners/Judgment Debtors 2 & 3. The following are the chronological events which are necessary to decide the Petition.

Page 2 of 12

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026

S. Date Particulars Period No. 113.03.2006 Court of the V Additional As the Suit dismissed no

Senior Civil Judge at calculation is required

Visakhapatnam passed the Judgment 207.12.2009 Court of the II Additional Mandatory injunction directing

DistrictJudgeat Defendants to remove the

Visakhapatnam passed unauthorized constructions made the Judgmenton the plaint schedule property within three months from the date of the judgment 307.12.2009 The Judgment is a clear Executionapplicationfor finding the Hon’ble Court enforcement of the mandatory granted (3) three months decree under the specific provision i.e. from 08.12.2006 (3) under Article 135 of Limitation Act three months, 90 days, within 3 (three) years. The decree therefore ending by holder has to file the execution 07.04.2010application on or before 08.04.2010 419.08.2015 Even excluding the (3) The Decree holder has to file the months period Ending by Execution Application on or before 07.04.201008.04.2010 519.08.2015 A.S.425/2010 was filed The Decree holder has failed to by the Judgment debtors offer a meaningful explanation who have not obtained before this Hon’ble Court or the any orders of stay etc., on Decree holder successfully filed to the decree and judgment file any application in this regard on AS.248/2006 before before the Hon’ble High Court. the Hon’ble High CourtTherefore,theExecution Application is not maintainable and liable to be dismissed. 618.05.2025 E.A.1/2024 & EA.2/2024 The Decree holder has filed EP inEP.2/2018in based on the Decree 07.12.2009 in

O.S.301/2001 in the AS.246/2006 and 12 years have

Common order at Para elapsed by 2021 from the date of 7.4 at page 7thline passing of the decree. Therefore, emphasised column in the Execution Application is not line next columnmaintainable and liable to the Dismissed.

Page 3 of 12

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026

The 1st Respondent/Decree holder approached the Court with unclean hands. The land including a building in the extent of Ac.0-71 cents, there is a vacant site where earlier Cyclone Shelter was situated and due to passage of time, it was renovated and at present, the said premises were allotted to Cyclone Shelter and it is continuing since post-independence to

India and District Training Center since 2000. Under the guise of invalid

Decree and as the prices in and around Visakhapatnam especially Survey

No.147/1 have been increased, the 1st Respondent/Decree Holder hatched a plan to grab the valuable property which shall not be encouraged by the

Court. The 1st Respondent/ Decree holder is not entitled to any relief from the Court. Hence, the Petition.

3. CASE OF THE 1 st RESPONDENT/ DECREE HOLDER IN A NUTSHELL:

The 1st Respondent/Decree holder has filed Counter and denied the material contents of the affidavit annexed to the Petition. Section 47 of the CPC is not an Appellate or Review mechanism. It is meant to deal with a few execution related objections but not to re-argue or reappraise the substantive rights involved in the original suit. The EP was filed on 01.06.2017, it was returned for compliance of office objections and after compliance of the objections, EP was registered as EP No.2/2018. It is a result of judicial discretion exercised by the Executing Court and the Order related to back to the date of filing of the EP itself. The EP was filed pursuant to the Orders of the Hon’ble High Court in SA.425/2010 which was dismissed on 19.08.2015. The Decree of the Courts had merged into the

Order passed by the Hon’ble High Court under the doctrine of merger means when an appeal or revision is filed against Lower Court Order and the Higher

Page 4 of 12

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026

Court (Appellate or Revisional Court) makes a decision, the original Order merges into the higher Court’s Order. So, the EP is within limitation.

3.2It was observed in AS.248/2006 that the Plaint Schedule

Property belongs to the 1st Respondent/ Decree holder and granted a

Permanent Injunction restraining the Petitioners/Judgment debtors from interfering with the possession and enjoyment of the Plaint Schedule

Property and Mandatory Injunction directing the Petitioners/Judgment debtors to remove the unauthorized structures within three months. The

Order of the Hon’ble Appellate Court is enough proof that the property is in existence. The findings of the Court about the Plaint Schedule Property are clear and categorical. Alternatively any issue regarding the existence are alleged lack of Plaint Schedule cannot be raised at this stage. It is settled law that the Executing Court cannot go beyond of decree. Finally, the 1st

Respondent/ Decree holder sought for dismissal of the Petition with exemplary costs.

4.Heard both sides and perused the material available on record.

5.Now the point germane for my determination is “Whether the

1 st Respondent/ Decree holder has not filed the EP within limitation and

if so, whether the Petitioners/Judgment debtors are entitled to the relief

as prayed for?”

6. P O I N T :

The learned Counsel for Petitioners/Judgment debtors submitted arguments in the same lines to that of the Petition contents. It is

Page 5 of 12

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026 further submitted that the EP Schedule Property is not in existence and to support his contention, filed a sketch signed by the Tahsildar of

Visakhapatnam Rural which shows a DTC Cyclone Shelter in an extent of

Ac.0-71 cents in Survey No.147/1 of Chinagadili Village. It is further submitted that the EP is not within limitation of 3 years as contemplated

Under Article 135 of the Limitation Act, 1963.

6.2Refuting those contentions, the learned Counsel for the 1st

Respondent/Decree holder filed the Copy of Order dated 30.04.2010 in

SAMP No.1034/2010 in SA No.425/2010 of the Hon’ble High Court of AP at

Hyderabad wherein the Hon’ble High Court was pleased to grant Interim

Suspension and also filed the case status details and submitted that SA

No.425/2010 has been dismissed for default on 19.08.2015. It is further submitted that the 1st Respondent/ Decree holder filed EP on 01.06.2017 within the period of three years from the date of dismissal of Second Appeal.

It is also submitted that as per the sketch enclosed to the Counter, the EP

Schedule Property is in existence and sought for dismissal of the Petition.

6.3In view of the rival contentions of both sides, it is apposite to quote here the Article 135 of the Limitation Act, 1963, which reads as under:

Description of Suit Period of Limitation Time from which period

being to run

135. For the enforcement Three years The date of the decree or of a decree granting a where a date is fixed for mandatory injunctionperformance, such date.

Page 6 of 12

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026 6.4As rightly contended by the learned Counsel for the

Petitioners/Judgment debtors, for enforcement of Mandatory Injunction, the limitation is three years and the limitation commences from the date of decree or where a date is fixed for performance, such date.

6.5It is an admitted fact of both the parties that the 1st Respondent/

Decree holder has filed the main Suit in OS 301/2001 on the file of this Court for the relief of Declaration to declare that the Plaint Schedule site (EP

Schedule Property) belongs to him and entitled to enjoy the same, for consequential relief of Permanent Injunction and also for Mandatory

Injunction to remove the basement made in the property and the Suit has been dismissed on 13.03.2006 after full trial. It is also an admitted fact of record that the 1st Respondent/ Decree holder has preferred the 1st Appeal in

AS No.248/2006 on the file of the Hon’ble II Additional District Judge,

Visakhapatnam; the said Appeal was allowed on 07.12.2009 by setting aside

Decree and Judgment of this Court. As could be seen from the Certified

Copy of Judgment annexed to the EP, the relief of Declaration, consequential relief of Permanent Injunction and also Mandatory Injunction directing the Defendants to remove unauthorized structures made in the

Plaint Schedule Property within three months from the date of Judgment have been granted. It is also not in dispute that the Petitioners/Judgment debtors have preferred the Second Appeal before the Hon’ble High Court of

AP and filed SA No.425/2010 against the Decree and Judgment in AS

No.248/2006. As could be seen from the Photocopy of Order dated 30.04.2010 in SAMP No.1034/2010 in SA No.425/2010, the Hon’ble High

Court was pleased to grant Interim Suspension as prayed for and the

Page 7 of 12

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026

Case Status details filed by the learned Counsel for Decree holder along with memo in GR.No.10 dated 27.01.2026 shows that SA No.425/2010 has been dismissed for default on 19.08.2015.

6.6It is the contention of the learned Counsel for the

Petitioners/Judgment debtors that EP is to be filed within three years from the date of enforceability of the Decree and so, the 1st Respondent/ Decree holder has to file EP within three years from the date of Decree and

Judgment in the First Appeal but not in the Second Appeal.

6.7Per contra, the learned Counsel for the 1st Respondent/ Decree holder submitted that as the Hon’ble High Court was pleased to grant Interim

Suspension of the operation of Judgment and Decree dated 07.12.2009 made in AS No.248/2006 and on 19.08.2015, the Second Appeal has been dismissed for default, limitation will start from the date of dismissal of the

Second Appeal under the doctrine of merger.

6.8In view of rival contentions of both sides, it is worthwhile to refer to the Judgment of the Hon’ble Supreme Court in Chandi Prasad and

Others v. Jagdish Prasad and Others1, the Hon’ble Supreme Court in regard to doctrine of merger, has observed as under:

“23. The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate 1MANU/SC/0852/2004 : (2004) 8 SCC 724

Page 8 of 12

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026 authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time.

24. It is trite that when an Appellate Court passes a decree, the decree of the trial court merges with the decree of the Appellate

Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the

Appellate Court affirms, modifies or reverses the decree passed by the trial court.

6.9As per the ratio laid down in the above Precedent, the Doctrine of Merger simply means that once a higher court makes a decision on a case, its order completely replaces the lower court's original decision. It doesn't matter if the higher court agrees with, changes, or completely flips the original ruling—the lower court's order effectively disappears and "merges" into the new one. This ensures there is only one final, official version of the judgment active at any time, maintaining clear authority and order within the legal system. Therefore, under the doctrine of merger, the decrees granted by the lower courts will be merged with the Decree of the

Higher Court. Further, there was an Interim Suspension of the operative portion of the Decree and Judgment in AS No.248/2006. So, until and unless the Interim Suspension of the operative portion of the Decree and Judgment in AS No.248/2006 is vacated, law does not permit the 1st

Page 9 of 12

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026

Respondent/Decree Holder to file the EP basing on the Decree and

Judgment in AS No.248/2006. The Petitioners/Judgment debtors have not filed any material before the Court to show that the Interim Suspension

Order is not in force till disposal of SA No.425 of 2010. Even otherwise, the

Second Appeal has been disposed off on 19.08.2015 and so, the Decree passed in AS No.248/2006 will become enforceable after disposal of the

Second Appeal only.

6.10The record shows that the 1st Respondent/ Decree holder has filed EP No.2/2018 on 01.06.2017 vide GR.No.122 dated 01.06.2017 which is within three (3) years from the date of disposal of the Second Appeal.

Of course, the EP has been registered on 22.03.2018, but the registration of

EP is not the deciding factor and the date of filing of EP is to be taken into consideration to determine the limitation period. As the EP was filed within three years from the date of Disposal of the Second Appeal, it can be said that the EP is well within the period of three years of limitation as contemplated Under Article 135 of the Limitation Act, 1963. So, the objection taken by the learned Counsel for the Petitioners/Judgment Debtors cannot be countenanced.

6.11It is the another contention of the Petitioners/Judgment debtors that there is no EP Schedule Property as on ground and to substantiate their contention, they have filed the Plan showing the Cyclone Shelter and

District Training Center in Survey No.147/1 of Chinagadili. To negate the said contention, the 1st Respondent/ Decree holder has filed Google Takeout

Photo and also Registration Sketch regarding the EP Schedule Property.

Page 10 of 12

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026

Further, as could be seen from the Judgment in AS No.248/2006, the

Respondents 2 & 3 therein who are the Petitioners/Judgment Debtors 1 & 2 in this Petition have taken the defence that the 3rd Defendant took the possession of the Plaint Schedule Property, started construction of a building for Training Center to impart Training and to the knowledge of the

Defendants, the construction of the building was completed by investing ₹10,00,000. But, the said contention is not accepted and it was decided in the Appeal that the construction made in the EP Schedule Property is an unauthorized construction. The moment when the Second Appeal has been dismissed, the Judgment passed by the Hon’ble II Additional District Judge,

Visakhapatnam in AS No.248/2006 became final and both the parties have to obey the Decree and under any circumstances, the unauthorized constructions made in the EP Schedule Property are to be removed and even the 1st Respondent/Decree Holder can recover the expenses from the

Judgment Debtors as per the Judgment in AS No.248/2006. So, as rightly contended by the learned Counsel for the 1st Respondent/ Decree holder, now the Petitioners/Judgment debtors cannot take the defence of non- existence of the EP Schedule Property.

6.12All the above attending circumstances lead to conclude that the 1st Respondent/ Decree holder can maintain the EP and it is within the limitation and this Petition is liable for dismissal. Accordingly, this point is answered against the Petitioners/Judgment debtors.

Page 11 of 12

V ACJ Court (SD)(FTC), VSP EA.3/2025 in EP.2/2018 Date: 26.03.2026

7. IN THE RESULT, this Petition is Dismissed without Costs.

Dictated to the Stenographer Grade-III, transcribed by her, corrected and

pronounced by me in the open Court on this the 26 th day of March, 2026.

Digitally Signed by

RADHA KRISHNA

RADHA KRISHNA MURTHY ANDE

MURTHY ANDEDate: 2026.03.26 17:14:20 +0530

VII ADDITIONAL CIVIL JUDGE (SD)

FAC V ADDITIONAL CIVIL JUDGE (SD)

VISAKHAPATNAM

APPENDIX OF EVIDENCE

-NIL- RADHA KRISHNADigitally Signed by

RADHA KRISHNA MURTHY ANDE

MURTHY ANDE

Date: 2026.03.26 17:13:53 +0530

VII ADDITIONAL CIVIL JUDGE (SD)

FAC V ADDITIONAL CIVIL JUDGE (SD)

VISAKHAPATNAM

Page 12 of 12

IV ACJ Court (SD) (FTC), VSP

EP.No.47 of 2022 in OS.482 of 2009

APVS010001442022

IN THE COURT OF THE IV ADDITIONAL CIVIL JUDGE

(SENIOR DIVISION) (FTC) AT VISAKHAPATNAM

PRESENT: SRI A.RADHA KRISHNA MURTHY

VII ADDITIONAL CIVIL JUDGE (SENIOR DIVISION)

FAC IV ADDITIONAL CIVIL JUDGE (SENIOR DIVISION)

VISAKHAPATNAM

MONDAY, THE NINETEENTH DAY OF JANUARY

TWO THOUSAND AND TWENTY-SIX

E.P.No.47 OF 20 22

IN

O.S.N o . 482 OF 20 09

Between :

Gadiraju Leelavathi, W/o. Krishnam Raju, aged 69 years, residing at D.No.49-39, B.T.P.T. Colony, Seethammadhara, Visakhapatnam.

… Decree Holder

AND

Sri Varaha Lakshmi Narasimha Swamy Vari Devasthanam, represented by its Executive Officer, Simhachalam ... Judgment Debtor

This Petition coming before me 08.01.2026 for hearing in the presence of V.Sarada, Learned Counsel for Decree Holder and of Sri M.N.Aditya and Sri D.Uma Rajya Lakshmi, Learned Counsels for Judgment debtor, upon hearing both sides and considering the material available on record, the Court delivered the following:

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IV ACJ Court (SD) (FTC), VSP

EP.No.47 of 2022 in OS.482 of 2009

:: O R D E R ::

This is an Execution Petition filed for sending the Executive Officer i.e. Principal Officer of Judgment debtor to the Civil Prison Under Order 21

Rule 32 of CPC for violation of Decree.

2. CASE OF THE DECREE HOLDER SUCCINCTLY :

The Decree holder has filed Suit against the Judgment debtor for Permanent Injunction and it has been decreed. Even after passing the

Decree and Judgment, the Judgment debtor intentionally demolished the structures of EP Schedule property. On 19.11.2020 at about 08:00 AM., the officials of Judgment debtor came to the EP Schedule Property and highhandedly demolished the part of the compound wall towards South

East of the EP Schedule Property. Hence, the Judgment debtor is liable for detention in Civil Prison as contemplated Under Rule 32 of Order 21 of

CPC.

3. CASE OF THE JUDGMENT DEBTOR IN A NUTSHELL:

The Executive Officer of Judgment debtor Temple has filed

Counter affidavit and denied the material contents of the affidavit of the

Decree holder. The photos filed by the Decree holder do not show any activity of the demolition and on the contrary they reflected that either an incomplete compound wall or stones scattered all over, fallen due to vagaries of nature. Either the Executive Officer of the Judgment debtor or

Officials never interfered with the alleged possession of Decree holder. The

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Judgment debtor and its officials have not committed any act of willful disobedience of the Decree. Finally, the Judgment debtor sought for dismissal of the EP with costs.

4. ENQUIRY PROCEEDINGS :

During enquiry, on behalf of the Decree holder, PW-1 & PW-2 were examined and Ex.P-1 to Ex.P-3 were marked. Refuting the testimonies of PW-1 & PW-2, the Assistant Executive Officer of Judgment debtor Temple has mounted witness box as RW-1. The testimonies of

PW-1, PW-2 & RW-1 are very much available on record in the form of depositions and they are not reproducing here to avoid prolixity.

5.Heard the learned Counsel for Decree holder and learned

Counsel for the Judgment debtor. Perused the material available on record.

6.Now the point germane for my determination is “Whether the

Judgment debtor has violated the Decree passed by this Court and if

so, whether the Executive Officer of Judgment debtor Temple is liable

to be Civil Imprisoned as prayed for ?”

7. P O I N T:

Learned Counsel for Decree holder submitted that from the testimonies of PW-1 & PW-2 coupled with Ex.P-1 to Ex.P-3, it is evident that the officials of Judgment debtor temple have demolished the compound wall of the EP Schedule Property and thus, the Judgment debtor has violated Injunction Decree passed by this Court.

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7.2Refuting those contentions, learned Counsel for the Judgment debtor would vehemently contend that the Judgment debtor has not committed any willful disobedience and Ex.P-1 to Ex.P-3 are not sufficient to say that the Judgment debtor violated the Decree.

7.3In Bhudev Mallick and Ors., v. Ranajit Ghoshal and Ors.,1, the Hon’ble Supreme Court has held thus :

“Imprisonment of a judgment debtor is a drastic step and to exercise such power, the Court must ensure that the judgment debtor willfully disobeyed its order.” 7.4In the light of above Judicial Precedent, it is very clear that a judgment debtor should not be detained in civil prison for alleged violation of decree for perpetual injunction in the absence of any evidence adduced by DHR as to nature of interference and without any finding by Court that such interference is willful and was made after having an opportunity to obey the decree.

7.5In order to discharge the initial burden cast upon the Decree holder to say that the Judgment debtor has violated the Decree and such violation is an willful, the Decree Holder has placed reliance on the testimonies of PW-1 & PW-2 coupled with Ex.P-1 to Ex.P-3. The Decree holder herself stepped into witness box as PW-1 and testified that on 1MANU/SC/0174/2025 : 2025 INSC 175

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EP.No.47 of 2022 in OS.482 of 2009

19.11.2020 at about 8:00 AM, the officials of the Judgment debtor came to the EP Schedule Property and demolished the compound wall. To buttress those contentions PW-1 had exhibited Ex.P-1 to Ex.P-3. During the course of cross-examination, PW-1 categorically deposed that she has no idea regarding the lands of Simhachalam and the shed reflecting in Ex.P-2 might have constructed in the year 1990. PW-1 also testified that her husband is looking after the EP Schedule Property and there are no people in Ex.P-1 & Ex.P-2.

7.6To support the case of the Decree holder, she has got examined her husband as PW-2 and PW-2 filed Chief Examination

Affidavit by supporting the case of the Decree holder in all material aspects. During the course of cross-examination, PW-2 stated that the shed reflecting in Ex.P-1 to Ex.P-3 was constructed in the year 1994 or 1995 and denied the suggestion that by virtue of vagaries of nature the compound wall was collapsed by itself.

7.7Refuting the testimonies of PW-1 & PW-2, the Assistant

Executive Engineer of the Judgment debtor temple has mounted box as

RW-1 and filed Chief Examination Affidavit by adverting to the Counter contents. During the course of cross-examination, RW-1 deposed that there is Land Protection Wing to the Judgment debtor and its duty is to demolish the unauthorized constructions if any in the lands of the

Judgment debtor and the said Wing will watch the temple lands round the clock and to demolish unauthorized constructions if any come to their notice. RW-1 admitted that the damage of compound wall in Ex.A-2

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appears to be demolished but not due to natural calamities and denied the suggestion that EO is held responsible as the compound wall was demolished by violating the Court Decree.

7.8Admittedly, the Decree holder has filed above captioned Suit against the Judgment debtor for Permanent Injunction in respect of the EP

Schedule Property and Suit has been decreed. It is true as rightly pointed out by the learned Counsel for the Decree holder, there is a Land

Protection Wing in the Judgment debtor Temple and its duty is to protect the lands of the Judgment debtor and also to demolish the constructions if any done in the lands of the Judgment debtor. It is the further contention of the learned Counsel for the Decree Holder the said Wing has demolished the Compound Wall. But, the Court cannot assume that the said Wing has demolished the Wall for the simple reason that the Judgment Debtor has been maintaining the said Wing to protect its land. Ex.P-1 to Ex.P-3 shows that compound wall was damaged. But, as rightly contended by the learned Counsel for the Judgment debtor and as admitted by PW-1 in her cross-examination, Ex.P-1 to Ex.P-3 does not depict any people and even they do not reflect any JCB or other vehicle to say that they were taken while demolishing the compound wall. There arises a doubt in the case of the Decree holder regarding alleged damage of Compound wall by the

Officials of Judgment Debtor. As the Decree holder has filed this EP for sending the EO of Judgment debtor temple for violation of the Decree, she has to establish with all cogent and convincing material that the Judgment debtor has willfully violated the Decree.

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7.9PW-2 is none other than the husband of Decree holder and so he is an interested witness. The entire Chief Examination Affidavit of PW-1 is silent regarding the presence of PW-2 at the time of alleged damage. In the Chief Examination Affidavit, PW-2 categorically deposed that he was present at the time of alleged activity. Had PW-2 was present at the time of alleged activity, PW-1 would have testified the same in her Chief

Examination. PW-2, though testified that at the intervention of the neighboring owners and inmates of locality and his protect, the Officials of the Judgment Debtor temple left the Property with proclamation that they would demolish the remaining compound wall, the evidence of PW-1 is silent on those lines. There arises a doubt in the veracity of PW-2.

7.10Moreover, one Telampudi Satya Vasu Murali gave an affidavit

U/sec.65B of the Evidence Act (Sec.63 of Bharatiya Sakshya Adhiniyam, 2023) stating that he has taken Ex.P-1 & Ex.P-2 with his Camera and the said Certificate did not say that the photos were taken at the time of damage. Further, PW-1 & PW-2 did not say that one Telampudi Satya

Vasu Murali took Ex.P-1 & Ex.P-2. Further, Ex.P-1 to Ex.P-3 are showing the damaged compound wall but not the persons who damaged the compound wall. Further, as indicated above, there are discrepancies in the testimonies of PW-1 & PW-2. So, the evidences of PW-1 & PW-2 and

Ex.P-1 & Ex.P-2 are not helpful to the Decree holder to say that the officials of the Judgment debtor temple intentionally or willfully demolished the compound wall and thereby they have violated the decree.

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7.11In view of the above discussion, this Court is of the considered opinion that the Decree holder could not establish that the Judgment debtor willfully violated the decree and this Petition is liable to be dismissed. Accordingly, this point is answered in favour of the Judgment

Debtor and against the Decree Holder.

8.IN THE RESULT, this Execution Petition is Dismissed.

Dictated to the Stenographer Grade-III, transcribed by her, corrected and

pronounced by me in the open Court on this the 19 th day of January, 2026.

Sd/-SRI A.RADHA KRISHNA MURTHY

VII ADDITIONAL CIVIL JUDGE (SD) ,

FAC IV ADDITIONAL CIVIL JUDGE (SD) ,

VISAKHAPATNAM

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR DECREE HOLDER FOR JUDGMENT DEBTOR

PW-1Gadiraju LeelavathiRW-1N.V.V.S.S.A.N.Raju PW-2Gadiraju Krishnam------- Raju

DOCUMENTS MARKED FOR DECREE HOLDER

Sl.No. Date of Description of Document

Document Ex.P-119.11.2020Photo Ex.P-219.11.2020Photo

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Ex.P-3-CD and Certificate filed under Section 65 B of Evidence Act

DOCUMENTS MARKED FOR JUDGMENT DEBTOR

- NIL -

Sd/-SRI A.RADHA KRISHNA MURTHY

VII ADDITIONAL CIVIL JUDGE (SD),

FAC IV ADDITIONAL CIVIL JUDGE (SD),

VISAKHAPATNAM

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