O.S.No. 2513 of 2022 1 Dt. 10.04.2023
IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS
UNDER PCR ACT-CUM-II ADDITIONAL JUNIOR CIVIL JUDGE,
HANAMKONDA.
Monday, this the 10th day of April, 2023
Present: Sri Shaik Arif
Judicial Magistrate of First Class for
Railways-cum-Junior Civil Judge, Kazipet. FAC Special Judicial Magistrate of First Class under PCR Act-cum-II Additional Junior Civil Judge, Hanamkonda
O.S. No. 2513 OF 2022
(OLD O.S. No. 658 OF 2012)
Between :
1.Smt. V.Rama Devi, W/o. Venkatram Reddy, Age: 39 years, Occ: Housewife;
2.Smt. K.Prasanna Madhavi, W/o. K.Narender Reddy, Age: 46 years, Occ: Housewife;
Both are R/o. H.No.2-10-640/1, Teachers Colony, Waddepally,Hanamkonda, Warangal District;
….. Plaintiffs
AND
1.Gouni Anjan Bhagwandas Goud, S/o. Not known, age: 62 years, Occ: Retired Teacher, R/o. H.No.1-8-388, Balasamudram Quarters, Hanamkonda, Warangal district; (DIED per L.Rs.)
2.Smt. G.Vidyavathi, W/o. Late G.Anjan Bhagwandas Goud, Age: 70 years, Occ: Retd. V.C. of KUC;
3.G.Vikram Goud, S/o. G.Anjan Bhagwandas Goud, Age: 31 years, Occ: Employee;
Both are R/o. Nacharam, Hyderabad; (D2 & D3 were added vide IA.No.1162/2015, Dt.5.10.2015) …. defendants
This suit is coming up before me on 23.03.2023 for hearing in the presence of Sri K.Narasimha Rao, Smt.K.Indira N.Rao, Advocates for Plaintiffs and of
Sri V.Venkateshwar Rao, Sri V.Ganesh, Sri D.Srikanth, Sri P.Praveen
Kumar, Smt.G.Sujatha, Advocates for the Defendants and upon perusing the material on record and having the matter stood over for consideration this Court has delivered the following:
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J U D G M E N T
[1].This suit is filed by the plaintiffs praying the Court to pass a decree of permanent injunction restraining the defendants, his successors in interest, agents, workmen or any other persons acting on his behalf from interfering or in any way invading with the exclusive, peaceful possession and enjoyment of the plaintiffs No.1 and 2 over the suit schedule Item No.1 and 2-A&B properties and to award costs of the suit.
[2].The brief averments of the plaint are :
[2a]The Plaintiffs No.1 and 2 are sister-in-laws. Plaintiff No.1 is the absolute owner and possessor of the house plot No.2-8-553/1 admeasuring 229.86
Sq.Yards in Sy.No.322/A-B situated in Waddepally Village, Komatipally
Grampanchayath, hereinafter called as the suit schedule Item No.1 property.
The Plaintiff No.2 is the absolute owner and possessor of the house plot No.2-8- 553/1 admeasuring 231 Sq.Yards in Sy.No.322/A-B situated in Waddepally,
Komatipally Grampanchayath, hereinafter called as the suit schedule Item No.2 property. More particularly the plaintiff has purchased 74.75 square yards and 156.50 square yards under two registered sale deeds respectively denoted as schedule 2A & 2B properties. It is further submitted that both Item No.1 and 2-
A and 2-B are a compact block and contagious piece and the house number was issued by Municipal Corporation, Warangal, jointly in the name of both the plaintiffs.
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[2b]It is further submitted that both the plaintiffs No.1 and 2 have purchased the Items No.1 and 2 schedule properties from the common vendors Smt.
B.Mallikamba and T.Srilatha vide Registered Sale Deeds document
Nos.1152/2002, 1153/2002, 1154/2002 dated 11-03-2002 respectively for valid sale consideration. It is further submitted that since the date of purchase they are in peaceful possession and enjoyment of the suit schedule properties. It is further submitted that since the plaintiffs being kith and kin, they have submitted an application before the Municipal Corporation, Warangal, for assessment of tax and accordingly the Municipal Corporation, Warangal, after due scrutiny of title, ownership and possession had issued house No.2-8-553/1 in favour of both the plaintiffs. Later they have constructed a room in the portion of Item No.2-B of schedule property and constructed a compound wall around the entire suit schedule property.
[2c]It is further submitted that the common vendors of plaintiffs i.e. Smt.
B.Mallikamba and Smt. T.Srilatha have purchased the Items No.1 and 2-A & B schedule properties which is a compact block of 461 Sq.Yds under Registered
Sale Deed vide document No.911/1991 dated 01-04-1991 from its owner
B.Babu Rao. In turn said B.Babu Rao purchased the entire suit schedule property under Registered Sale Deed vide document No.3999/1980 dated 05- 08-1980 from its original pattedars and possessors Nalla Narsaiah,
S/o.Mallaiah, and Gannoju Narayana S/o.Guruvaiah. It is also submitted that the plaintiffs and their vendor’s vendors are in settled possession and enjoyment of suit schedule property since more than 3 decades.
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[2d]It is further submitted that the defendants without any interest or right over the suit schedule property have filed false representation before the
Municipal Corporation with regard to allotment of the house number to the plaintiffs. It is also submitted that the defendant being the stranger to the suit schedule property on 25-05-2012 he along with anti social elements came to the suit schedule property and made strenuous efforts to dispossess the plaintiffs, but the plaintiffs with the intervention of the elders and well wishers could able to handle the defendant. Having no other option, the plaintiffs constrained to file the suit. Hence, the suit.
[3].The brief facts of written statement are as follows:
[3a]The defendant had denied the entire plaint averments and submitted that prior to purchase of the plaintiffs, the defendant No.1 has purchased the suit schedule properties in the name of his son Gouni Vikram Goud from its owner Kotte Joseph, S/o. Ilaiah, through a notarized Agreement of Sale dated 09-03-1995 for a sale consideration of Rs.20,740/- and since then the son of defendant is in possession of suit schedule properties. Further on 09.12.1996, the son of the defendant had filed an application before the Municipal
Corporation, Warangal, for allotment of Vacant Land Tax (V.L.T.) number and defendant had constructed a compound wall and room in the suit site. It is further submitted that said notarized Agreement of Sale dated 09.03.1995 was duly impounded by the R.D.O., Warangal under Article 47-A of Schedule 1B of
Indian Stamp Act, 1899, vide file No.D.Dis.A/233/2004 dated 24.12.2004.
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[3b]It is further submitted that the vendor of defendant’s son namely Kotte
Joseph had purchased the suit schedule properties from its original pattedar
Nalla Narasaiah, S/o. Mallaiah, through an Agreement of Sale dated 12-05-1993 for total sale consideration of Rs.15,000/-. But said original transaction is evidenced by acknowledgment dated 10.06.1993. Further, said Agreement of
Sale dated 12-05-1993 was also impounded before the Revenue Divisional
Officer, Warangal, dated. 24-01-2004 by collecting required stamp duty.
[3c]It is also submitted that on 10-05-2004 the defendant applied for assessment of VLT to the suit schedule property, but the Municipal authorities have orally advised the defendant that change of ownership of suit property would be considered only through registered documents. Accordingly, the son of the defendant had executed a Registered Gift Settlement deed in favour of defendant through Registered Gift Deed vide document No.2713/2004 dated 27-03-2004. Thereafter the defendant approached the Municipal Corporation,
Warnagal, by submitting the above gift deed and requested for assessment for
VLT and also for mutation of his name. But the Municipal authorities have issued a Memo dated 20.05.2004 addressing both the plaintiffs and defendant stating that the dispute is civil in nature and directed both the parties to approach the civil Court for redressal of the grievances. It is also submitted that the Municipal authorities with an active collusion with the plaintiffs allotted the house No.2-8-553/1 in favour of the plaintiffs unilaterally without
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any prior notice, enquiry or information to the defendant and issued an un- authorised notice dated 09.07.2011 in ROC.No.A2/2093/8/2011.
[3d]It is also submitted that the plaintiffs and their vendors have no right over the suit schedule property and the defendant’s vendors have purchased the suit schedule property prior in point of time to the plaintiffs and the plaintiffs with an intention to grab the suit schedule property approached the
Court with unclean hands and prayed to dismiss the suit.
[4].Basing on the rival contentions of both parties, the following issues are settled for trial:
1) Whether the plaintiff No.1 is in the possession of Item No.1 of the suit schedule property and whether the plaintiff No.2 is in the possession of Item No.2 of the suit schedule property as on the date of filing of the present suit?
2) Whether the defendant tried to interfere with the possession of the plaintiffs over their respective items?
3) Whether the plaintiffs are entitled to seek the permanent injunction against the defendant?
4) To what relief?
[5].To prove their contentions, on behalf of plaintiffs, PW.1 to PW.3 were examined and Exs.A1 to A10 were marked. On behalf of defendants, DW.1 and
DW.2 were examined and Exs.B1 to B16 were marked.
[6].Learned counsel for the plaintiffs and defendants have filed citations in support of their contentions.
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[6a]Learned counsel for the plaintiffs has relied upon the expression of the
Hon’ble Apex Court in Ananthula Sudhkar Vs. P. Buchi Reddy (dead) by
LRs reported in (2008) 4 SCC 594 and on the expressions of the Hon’ble
High Court of Telangana in State of Telangana Vs. P. Balabhaskar Reddy reported in AIR 2002 Tel 8; in Garlapati Venkateshwarlu Vs. Divi
Appalacharyulu reported in 2014 (2) ALT 245 and in V. Madhusudhan
Rao Vs. S. Nirmala Bai reported in 2019 (3) ALT 79 (AP).
[6b]Learned counsel for the defendants has relied upon the expression of the
Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and
the State of Andhra Pradesh in Buddha Jagadeeswara Rao Vs. Sri Ravi
Enterprises represented by its Proprietor Kedarisetty Gurumurthy
reported in 2017 (2) ALT 736.
[7].Heard the learned counsels for the plaintiffs and defendants and perused the material on record.
[7a]Learned counsel for the plaintiffs submitted that the plaintiffs and their vendors and their vendors vendor have purchased the entire suit schedule property from the original pattedar Nalla Narsaiah under Registered Sale Deed and since the date of purchase they are in peaceful possession and enjoyment of the suit schedule property. It is also submitted that the defendant has no right or title over the suit schedule property and have created some unregistered Agreement of Sale Deed to grab the suit schedule property and
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tried to dispossess the plaintiffs from the suit schedule property. It is also submitted that the documents produced by the defendant are unregistered documents which are compulsorily to be registered and the same cannot be considered in the eye of law as valid documents and there is no flow of title to claim any right or interest over the suit schedule property. It is also submitted that the identification of the property is not in dispute and the original owner i.e. Nalla Narsaiah is not in dispute and since the year 1991 the plaintiffs and their vendors are in peaceful possession of the suit schedule property under valid documents and prayed to decree the suit.
[7b]On the other hand, the learned counsel for the defendants submitted that the vendor of the defendant had purchased the suit schedule property from the original owner much prior to the purchase of the plaintiffs and the Agreement of Sale Deeds were impounded before the R.D.O. by collection of sufficient stamp duty under Indian Stamp Act and the same will be now treated as registered documents. It is also submitted that the defendant has approached the Municipal athorities for assessment of V.L.T. but the Municipal authorities have issued a Memo directing both the plaintiffs and defendant to approach the
Court of Law to resolve their disputes. It is also submitted that the plaintiffs in collusion with the revenue authorities have got allotted the house number in their favour over the suit schedule property inspite of direction of the municipal authorities to approach the Court of Law. It is also submitted that, at this juncture, when there is a cloud over the title, the plaintiffs have filed a simple
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suit for injunction which is not maintainable without seeking the declaration of title and prayed to dismiss the suit.
[8].ISSUE NO.1:
The main case of the plaintiffs is that the plaintiffs have purchased the suit schedule Items No.1 and 2 properties from their vendors under Registered
Sale Deeds and since the date of purchase they are in peaceful possession and enjoyment over the suit schedule properties and got mutated their names and obtained the house number from the Municipal authorities and got constructed a room in Item No.2B schedule property and constructed the compound wall around the entire suit schedule property. The defendants without any right or interest over the suit schedule property had interfered with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property.
Hence, the burden of proof is on the plaintiffs to prove the same.
[9].To prove their claim, both the plaintiffs filed their chief affidavits and examined as Pws.1 and 2 by reiterating the contents of the plaint. During the cross examination of PW.1, she denied the suggestions given by the other side such as defendant purchased the suit schedule property, defendant raised objection on the application filed by her for permission before municipal authorities, the municipal authorities advised the parties to approach the civil court, the defendant No.1 purchased the suit schedule property much prior to her purchase from K. Joseph and she has no right over the property. She
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deposed that she along with PW.2 purchased the entire suit schedule property in the year 2002.
[10].During the cross examination of PW.2, she deposed that they have purchased the entire suit schedule property jointly in the year 2002 and obtained permission from the municipal authorities and constructed room in schedule 2-B property and also correctly mentioned boundaries of item No.2-A property. She denied the suggestions given by other side, such as defendant is in the possession of the suit schedule property, defendant purchased the suit schedule property from the original owner Nalla Narsaiah in the year 1993 itself, there is no room in the suit schedule property. Both the plaintiffs have admitted in the cross examination that in Ex.A9-pahani for the year 1979- 1980, their vendor’s name is not reflected and the name of original owner
Nalla Narsaih was reflected.
[11].To prove their claim, the plaintiffs have examined southern side boundary owner of the suit schedule property as PW.3, who deposed that the plaintiffs have purchased the suit schedule property from Nalla Narsaiah and
Narayana and he purchased the property in the year 1980 from the same vendor of the plaintiffs and since then the plaintiffs were in possession of the suit schedule property and the defendants have interfered with the possession of the plaintiffs over the suit schedule property. During his cross examination, he denied the suggestions such as the defendant No.3 is in possession of the
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suit schedule property and constructed compound wall around the suit schedule property.
[12].On the other hand, defendant No.3 filed chief affidavit as DW.1 by reiterating the contents of the written statement. DW.1 deposed that he approached the municipal authorities for assessment of Vacant Land Tax (VLT), but the municipal authorities have advised him to approach the court of law.
He deposed that the house number allotted to the plaintiffs have been cancelled by the municipal authorities, but he did not file any document showing the same. He further deposed that he had acquired the property through registered gift deed under Ex.B4.
[13].During his cross examination, he admitted that based on Ex.B2- permission proceedings issued by ULC, Warangal, Ex.B4-gift deed was executed by him in favour of his father/D1. He further admitted that Ex.B14 and B15 are relating to the same property. He also admitted that in Ex.B14 there was no mention of extent of land and boundaries. He also admitted that
Nalla Narsaiah and Guruvaiah are the owners and pattedars of the suit schedule property. He also admitted that he has not filed any suit before the court challenging the house number allotted to the plaintiffs by the municipal authorities. Further he denied the suggestions that Exs.B4, B5, B14 and B15 are created documents and denied that he had interfered with the possession of the plaintiffs over the suit schedule property. He also admitted that except
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Ex.B15 there is no document executed between Nalla Narsaiah and Kotte
Yosobu and there are no boundaries mentioned in Ex.B15.
[14].To establish his version, defendant examined his relative as DW.2 who deposed in the same lines of him. During his cross examination, he admitted he did not gone through the documents of the plaintiffs nor Exs.B14 and B15 and the Encumbrance Certificate. He admitted that originally suit schedule property held by Nalla Narsaiah and G.Narayana.
[15].Admittedly the entire suit schedule property is an open house plot, in which a small room was constructed along with compound wall around the entire suit schedule property. It is settled law that when the suit land is a vacant land, the possession has to decided by looking into the title of the parties under the principle ‘title follows possession’. It is also settled that the
Court can incidentally look into title of the parties in a suit for injunction to decide the possession of the parties.
[16].A perusal of the Exs.A1 to A5 registered sale deeds, it is clear that the plaintiffs have purchased the entire suit schedule property i.e., compact block of 461 square yards in the year 2002 from Smt. Mallikamba and Srilatha, who purchased the same in the year 1991 from B. Babu Rao and in turn Babu Rao purchased the same in the year 1980 from the original owners Nalla Narsaiah and Ganoju Narayana. It is not in dispute that Nalla Narsaiah and Ganoju
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Narayana were the original owners of the entire suit schedule property. The identification of the suit schedule property was also not in dispute.
[17].The main defence of the defendant is that defendant No.1 purchased the suit schedule property in the name of defendant No.3 from Kotte Joseph under unregistered agreement of sale and receipt under Ex.B1 in the year 1995, which was later impounded before the Revenue Divisional Officer, Warangal in the year 2004. Kotte Joseph had purchased the same from the original owner
Nalla Narsaiah in the year 1985 through unregistered agreement of sale-
Ex.B15. Later in the year 2004, when the defendant No.3 had filed an application before the municipal authorities for assessment of vacant land tax (VLT), they have advised him that change of ownership would be done only through registered documents, at that time he had executed the registered gift settlement deed in favour of his father/D1 in the year 2004 under Ex.B4.
[18].A perusal of the Ex.A5-registered sale deed clearly shows Babu Rao (vendor’s vendor of the plaintiff) had purchased the entire suit schedule property from the original owner Nalla Narsaiah and Gannoju Narayana in the year 1980, which is much prior in point of time to the alleged purchase of Kotte
Joseph in the year 1985 that too under unregistered agreement of sale from
Nalla Narsaiah. It is the settled law that no person can convey better title than what he possess. In the instant case on hand, the vendor’s vendor of the plaintiff i.e., Babu Rao had purchased the entire suit schedule property under
Ex.A5 from the original owner Nalla Narsaiah in the year 1980 itself much prior
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to the purchase of vendor of the defendant under Ex.B14 from Nalla Narsaiah.
Hence, Nalla Narsaiah cannot convey more than what he possess, which had transferred to Babu Rao, vendor’s vendor of the plaintiff. Moreover, the contents of Ex.B14 shows they have entered into an agreement to purchase 13 guntas of land which will approximately come to 1573 square yards. Whereas the suit schedule property is only 461 square yards.
[19].The contention of the learned counsel for the defendant is that even though Ex.B14 and B15 are unregistered document, they got impounded and paid stamp duty on the document. It is settled law that defect of stamp duty penalty is a curable defect by collecting insufficient stamp duty for the purpose of marking of document, whereas the defect of registration is an incurable defect. According to Section 50 of the Indian Registration Act, the registered document will take effect over the unregistered document with regard to the self same property. Hence, the flow of title of the plaintiffs through registered sale deeds under Ex.A1 to A5 is established to see the possession of the suit schedule property.
[20].The other contention of the defendant is the simple suit for injunction is not maintainable without seeking the relief of declaration of title when both the parties are directed by the municipal authorities to approach the court of law to resolve their dispute as per Ex.B7. At that stage, learned counsel for the plaintiffs have placed reliance on Ananthula Sudhakar supra and submitted that it has been held by the Hon’ble Apex Court that when there is
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cloud over the title, then declaration of title has to be sought along with injunction. It has also held that in a suit for injunction, the Court can incidentally look into the title of the parties to decide the possession of the parties over the property. Learned counsel for the plaintiffs submitted that in the instant case no cloud was created by the defendant by claiming title over the suit schedule property by producing any registered documents in their favour, hence the relief of declaration of title is not required. However, the court can look into the title of parties to decide the suit for injunction.
Admittedly, the defendants are relying on Exs.B14 and B15 which are unregistered documents and later to the purchase of vendor’s vendor of the plaintiffs. Therefore, no cloud is being created by the defendants over the title of the plaintiffs. Hence, the contention of the learned counsel for the defendant that the present suit for injunction is not maintainable is not tenable.
[21].From the above, it is also clear that the plaintiffs have also examined
PW.3 who is souther side owner of the suit schedule property, who also purchased the property from the common vendor of the plaintiffs to establish their possession over the suit schedule property.
[22].From the above, it is clear that title of the plaintiffs is established over the entire suit schedule property. Hence, it is proved that the plaintiffs are in possession over the entire suit schedule property i.e., item No.1 and item
No.2A and 2B schedule properties. Accordingly, the point is answered in favour of the plaintiffs.
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[23].Issue No.2: The plaintiffs have categorically stated that the defendants interfered with peaceful possession over the suit schedule property on 25-05- 2012. On perusal of oral evidence, it is clear that the defendant has not shaken the veracity of witnesses in respect of interference by them over suit schedule property. Hence it is deemed to have been admitted that the defendant had interfered with possession of plaintiffs’ over suit schedule property.
Accordingly, this issue is answered in favour of plaintiffs.
[24].Issue No.3 & 4: In view of the findings in respect of issue Nos.1 and 2, the plaintiffs are entitled to the relief of permanent injunction.
In the result, the suit is decreed with costs by granting permanent injunction in favour of the plaintiffs restraining the defendant and his agents from interfering with the peaceful possession and enjoyment of the plaintiff over the entire suit schedule property i.e., item No.1 and item No.2A and 2B schedule properties.
(Dictated to Stenographer, transcribed by her and after corrections,
pronounced by me in the open court on this the 10th April, 2023).
Sd/-
FAC II Additional Junior Civil Judge-cum- Special JMFC under PCR Act, Hanamkonda
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS: FOR DEFENDANTS : PW1: V. Rama Devi. DW1: G.Vikarm Goud. PW2: K.Prasanna Madhavi. DW2: G. Sivaram Goud PW3: E. Krishna Reddy
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EXHIBITS MARKED
FOR PLAINTIFFS: Ex.A1: Original Registered Sale Deed Dt.11.03.2002 Doc.No.1153/2002. Ex.A2: Original Registered Sale Deed Dt.11.03.2002 Doc.No.1154/2002. Ex.A3: Original Registered Sale Deed Dt.11.03.2002 Doc.No.1152/2002. Ex.A4: Original Registered Sale Deed Dt.1.4.1991 Doc.No.911/1991. Ex.A5: Original Registered Sale Deed Dt.5.8.1980 Doc.No.3999/1980. Ex.A6: Notice Dt.24.8.2004 issued by WMC. Ex.A7: Cash receipt Dt. 19.3.2012 issued by WMC. Ex.A8: Miscellaneous Receipt Dt.11.8.2007 issued by WMC. Ex.A9: Certified copy of pahani for the year 1979-80. Ex.A10: (03) photographs along with photo CD.
FOR DEFENDANTS: Ex.B1: Original Notarized Agreement of Sale dt.9.3.1995 along with Receipt Dt.15.3.1995 duly impounded. Ex.B2: Proceedings under ULC Dt.30.8.1999. Ex.B3: Original application Dt.9.12.1996 given to Municipal Corporation. Ex.B4: Original Registered Gift Deed vide Doc.No.2713/2004 Dt.27.3.2004. Ex.B5: Encumbrance Certificate Dt.7.3.2011. Ex.B6: Acknowledgment issued by WMC Dt.10.5.2004. Ex.B7: Memo issued by WMC Dt.20.05.2004. Ex.B8: Office copy of application addressed to Commissioner, WMC, Dt.7.3.2012. Ex.B9: Mee Seva copy of Death Certificate Dt.2.2.2015. Ex.B10: Mee Seva copy of Family Member Certificate Dt.15.5.2015. Ex.B11: Original Rythu Pass Book of Nalla Narsaiah. Ex.B12: Notice issued by WMC, Dt.7.5.2012. Ex.B13: Application addressed to Commissioner, WMC, Dt.13.6.2011. Ex.B14: Original Simple Sale Deed Dt.12.5.1993 along with the Receipt Dt.10.6.1993 duly impounded along with receipt of impounding. Ex.B15: Simple Sale Deed Dt.27.10.1985 (duly impounded). Ex.B16: Signature of DW.1 on the representation made by DW.1 (marked through cross examination of DW.1).
Sd/-
FAC II Additional Junior Civil Judge-cum- Special JMFC under PCR Act, Hanamkonda