Sri B. Lakshmi Narayana

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OS.2988/2006 & O.S.1935/2006

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IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE ::

VISAKHAPATNAM

PRESENT: SRI.LAKSHMI NARAYANA.B

I ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

Wednesday, the 8th day of April, 2015.

O.S.No.2988/2006

Between:

1. Smt. D.Mary Sarojini, W/o M.D. Doss (D/o late Victoria Moses), Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K Nagar, Chennai 600 078.

2.Sri.V.M.Kripa Rao, S/o late Victoria Moses, Indian Christian, aged 75 years, resident of Sirpur Kagaz Nagar, A.P., represented by his Agent and POA holder Smt. D.Mary Sajojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K.Nagar, Chennai 600 078.

3.Smt.K.Vijaya Kumari, W/o K.Vijayakumar and D/o late Jaya Rao, Indian Christian, aged 40 years, resident of Jagannathapuram, Korukonda Veedhi, Kakinada, A.P., represented by her Agent and POA holder Smt.D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sectorm 36th Street, KK Nagar, Chennai 600 078.

4.V.Raju, S/o late Victoria Moses, Indian Christian, aged about 66 years, resident of Rajahmundry, A.P., represented by his Agent and POA holder Smt.D.Mary Sarojini, W/o M.D. Doss, Indian Christian, aged 64 years, residing at Plot Not.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

5.Smt.V.Sampoornamma, W/o late Mohan Rao and d/o late Victoria Moses, Indian Christian, aged 73 years, resident of Turangi, Kakinada, A.P., represented by her Agent and POA holder Smt D.Mary Sorojini, W/o M.D. Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K.Nagar, Chennai 600 078.

6.Sri.R.T.Appa Rao David, S/o late R.T.David, Indian Christian, aged 56 years, resident of Plot No.96, V Cross Road, NKV Nagar, Chennai, represented by his Agent and POA holder Smt.D.Mary Sarojini, S/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot NO.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

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7.R.T.David Madhava Rao, S/o late R.T.David, Indian Christian, aged 54 years, working as Manager Incharge in TAS Auto Company, Chennai, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

8.R.T.Suresh Babu, S/o late R.T.David, Indian Christian, aged about 50 years, business, resident of 13th Main Road, Thiruvelliyar Nagar, Chennai, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

9.K.Samson Raju, S/o late Winniefred, Indian Christian, aged about 51 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt.D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

10.K.Vijaya Kumar, S/o late Winniefred, Indian Christian, aged about 49 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

11. K.Prasa, S/o late Winniefred, Indian Christian, aged about 41 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt.D.Mary Sarojini W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

12. Smt. Keti Victoria, W/o Govind and d/o Late Winniefred, aged 44 years, resident of Kakinada, represented by her Agent and POA holder Smt.D.Mary Sarohini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

...Plaintiffs

And:

1. Tynala Musalaiah, S/o late Musalaiah, Hindu aged 64 years, resident of D.No.29-9-4, (Old door No.29-9-3/1), Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

2. Tynala Dalamma, W/o Musalaiah, Hindu, aged 57 years, resident of D.No.29-9-4, (Old door No.29-9-3/1), Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

3. Tynala Vijaya Kumar, S/o Musalaiah, Hindu, aged about 41 years, resident of D.No.2-9-5, (Old door No.29/9/3/1), 2nd floor, Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

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4.P.Rama Rao, father's name not known to the plaintiff, Hindu aged about 45 years, resident of D.No.15-12-22/9, Flat No.30, Suraj Apartment, Opp: Simhadri Hospital, Krishnanagar, Visakhapatnam 530 002.

5.The Greater Visakhapatnam Municipal Corporation, represented by its Commissioner, Asilmetta, Visakhapatnam.

6.Serat Babu Bollina, S/o Sarveswara Rao, Hindu aged 32 years, resident of 78/4, Jeffrey Alan Ct., Releigh, NC 27613, USA.

7.Kum Pendyala Lakshmi Soujanya, d/o Pendyala Rama Rao, Hindu, aged 21 years, resident of 8-3-10/4, Flat NO.502, Palace Residency, Vizianagaram Palace Layout, Visakhapatnam-530 017.

8.Smt.Dune Usha Rani, W/o Thatainaidu, Hindu aged 33 years, resident of 45-2-40/6, Ramachandranagar, Akkayyapalem, Visakhapatnam 530 016.

9.Ranjan Kumar Kanungo, S/o Kailash Chandra Kanungo, Hindu, aged 36 years, resident of Qr.No.P-169, Sector I, Damanjodi 763 008, Koraput District, Orissa.

(Amended as per Orders in I.A.966/2007 dated 19-7-2010)

10.Koppaka Krishna, S/o Koppaka Kannam Naidu, Hindu, aged about 32 years, resident of Door No.10-53-108, Block No.8/2, Nehru Nagar Quarters, Visakhapatnam.

11.Smt.Pendyala Indira Devi, W/o Ramarao, Hindu, aged about 45 years, resident of 15-12-22/9, Flat No.301, Suraj Apartment, Opp: Simhadri Hospital, Krishnanagar, Maharanipeta, Visakhapatnam.

12.Smt Lalam Garikamma, W/ late Kanakayya, Hindu, aged about 65 years, C/o Tynala Vijayakumar, D.No.29-9-4 & 5, (Old No.299-3/1), Lalitha Colony, Visakhapatnam.

...Defendants

This suit is coming on 18.3.2015 for final hearing before me in the presence of Sri.J.V.Ramakrishna and V.V.Ravi Prasad learned Advocate for plaintiffs, and of Sri.L.Satyanarayana learned Advocate for the 2nd defendant and of Sri.K.S.Shankar, K.V.Lakshmi, learned advocate for D3 and of Sri.Badarinath & Madan Mohan learned Advocate for D4 and of

Sri.Y.V.Satyanarayana learned Advocate for D4 and D1 died and D7 to D9 and D10 to 12 are exparte and having stood over for consideration to this day, this court delivered the following:

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C O M M O N J U D G E M E N T in O.S NO.2988/2006 &

O.S.NO.1935/2006

1.Plaintiff filed this suit for granting permanent injunction restraining the defendants 1 to 4, 6 to 12, their men, agents, successors, servants, kith and kin, from making any alienations or making any further constructions in the schedule property. For a mandatory injunction, directing the 5th defendant from removing and demolishing the unauthorized constructions made in the schedule property by following the procedure contemplated under the provisions of Hyderabad Municipal Corporation Act which is made applicable to

Visakhapatnam city also by duty enquiring into the complaints lodged by the first plaintiff. For a permanent injunction restraining the 5th defendant from granting any permission/sanction for construction of building in any portion of the schedule property in the name of any third person other than the plaintiffs and for costs.

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

O.S.2988/2006:

“It is submitted that one Appayya is originally the absolute owner of land measuring 2421 square yards of TS No.1459, Block No.42,

Lalitha Colony, Dabagardens, Visakhapatnam. The said Appayya had two sons by name Appalaswamy and Guruvulu. Apalaswamy The said

Appalaswamy had one son by name solmon David. The said solmon

David had two children by name Keti Victoria (Victoria Moses) and

Thomas David. It is submitted that the plaintiffs 1, 2, one late Jaya

Rao, father of 3rd plaintiff, 4th plaintiff and late Winniefred (mother of plaintiffs 9 to 12 ) are the children of the said Victoria Moses who died in the year 1940. The plaintiffs 6 to 8 are the children of Thomas

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David who died in the year 1987. It is further submitted that the plaintiffs herein are the descendants of Appalaswamy S/o Appayya. It is submitted that Guruvulu, S/o Appayya is having three children by names K.S.Ratnamma, K.Kanthamma and Prabhu Das. The aforesaid persons are the descendants of Guruvulu, S/o Appayya. It is submitted that during the year 1979 the first plaintiff herein filed a suit in O.S.755/79 on the file of I Additional Junior Civil Judge,

Visakhapatnam against K.S.Ratnamma, the 2nd defendant herein, one

R.Thomas David (father of plaintiffs 6 to 8), the first defendant herein, one Mohan Roy and the plaintiffs 2 to 5 and one Winniefred (mother of plaintiffs 9 to 12) for declaration that she is entitled for 1/24th share in the plaint schedule property and for a decree of partition of the same into 24 shares and to allot one such share and separate possession to her and for costs. During the pendency of the suit and before the

judgement could be passed in the suit. Thomas David died and the

plaintiffs 6 to 8 herein who are his legal heirs were imp leaded as defendants 11 to 13 in the suit. The suit was mainly contested by the defendants 1,3 and 5 therein. After full fledged trial the said suit was decreed by the learned I Additional Junior Civil Judge, Visakhapatnam by his decree and judgment dated 24-4-1995 by holding that the 1st plaintiff herein is entitled for the declaration that she is entitled to 1/24th share in the plaint schedule property and also for partition of the same and for allotment of possession of one such share among the 24 shares. In the aid decree and judgement, the learned I Additional

Junior Civil Judge also observed that the defendants 1 and 2 herein are entitled for such extent of property which was purchased by the 2nd

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- 6 - defendant herein from the share of K.S.Ratnamma or from her legal heirs so far it is possible. It is submitted that thereafter the 1st plaintiff filed an application in I.A.749/96 under Order XX Rule 12 of

CPC praying the court to appoint a Commissioner for partition of the plaint schedule property by metes and bounds into 24 equal shares and allot one such share of property for which she is entitled to in terms of the preliminary decree dated 24-4-1995. On the said application on 21-10-1997, the Honourable I Additional Junior Civil

Judge was pleased to appoint one Sri.G.Bhaskara Rao, Advocate, as

Commissioner. Subsequently, the said Commissioner filed his report

before the Honourable court on 29-6-1999 along with sketches.

Thereafter, the plaintiffs 2 to 5, 9 to 12 herein filed an application in

I.A.584/2001 praying the Hon'ble court for passing a final decree in respect of their 5/24th share in the plaint schedule property. Similarly, the plaintiffs 6 to 8 herein also filed anther application in I.A.585/2001 praying the court to pass a final decree in respect of their 6/24th share in the plaint schedule property. It is pertinent to mention here that the plaintiffs 2 to 12 filed the aforesaid two applications in

I.A.584/2001 and I.A.585/2001 through the 1st plaintiff as their POA holder. All the aforesaid three applications filed by the plaintiffs herein were disposed by the learned I Additional Junior Civil Judge by a Common Order dt.9.8.2002. As the plaintiffs being the descendants of Applaswamy branch, they are having half share in the schedule property. In the said application, the plaintiffs 2 to 12 also filed their individual affidavits praying the Honourable Court to allot their share in the schedule property adjoining the share of the 1st plaintiff and to

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- 7 - deliver the half share in the schedule property to the 1st plaintiff as the same will help them to utilise the half share of land of all of them for their best advantage. After full fledged enquiry, the Honourable I

Additional Junior Civil Judge by his orders dated 9.8.2002 by allotting

1210.50 sq yds of site which is situated on the southern side of the plaint schedule property to the plaintiffs herein who are the petitioners in Ias 749/96, 584/2001 and 585/2001 in O.S.No.755/1979 and by allotting the constructed area which is to the north of the entire schedule property as observed in the Commissioner's report to the share of defendants 1 and 5 in O.S.755/79 and their successors who are defendants 1 and 2 herein and their subsequent purchasers. It was also observed in the said order than in case defendants 1 and 5 in O.S.755/79 are entitled to any additional site apart from the site covered by the multi storied building to make 1210.50 sq. yds of site of their share in total, they can have the remaining site adjoining to the said multi-storeyed building site in the north side of the schedule property. It is submitted that the above kind of equitable partition was necessitated on account of the fact that either defendants 1 and 5 in

O.S.755/79 or persons who purchased extents from them during the

pendency of the suit made huge constructions on the northern side even during the pendency of the suit and after the preliminary decree was passed. It is submitted that thereafter, the plaintiffs representing the branch of Appalaswamy S/o Appayya filed EP 1336/2002 on the file of I Additional Junior Civil Judge, Visakhapatnam for working out the directions in the final decree and for delivery of their 1210.50 sq yards towards southern side of the schedule property. The Honourable

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I Additional Junior Civil Judge was also pleased to order delivery but the 3rd defendant herein who is the son of 1st and 2nd defendants herein caused obstructions with the result that the warrant was returned with a report of obstructions. Thereafter, a spate of petitions were filed by the defendants 1 and 2 herein and legal representatives of the 5th defendant in O.S.755/79. The 3rd defendant herein also filed an EA125/2003 in EP 1336/2000 under Order XXI Rule 97 of CPC to declare his title and not to dispossess him and close EP 1336/2002.

In the said application, the 3rd defendant herein stated that in addition to 1054 sq yds purchased by his mother – in law, Lalam Garikamma, him mother the 2nd defendant herein and one Lakshmaiah, he purchased 306 sq yds from the 5th defendant in O.S.755/79 under two registered sale deeds dt.10.5.99 and 11.5.99, that he also purchased a site along with AC roofed building together with extent of 282 sq yds from the 5th defendant in O.S.755/79 under a registered sale deed

dated 12.5.99. In the said application, the 306 sq yds purchased by

him is demarcated as IJKEOPL in the sketch attached to the petition which is towards the north-west, the entire total of which comes to 1360 sq yds in the north as against 1210.50 sq yds and 282 sq yds purchased by him under registered sale deed dt.12.5.99 is demarcated as EKJMD which is to the south-west corner in the plaint schedule property. The said application was opposed by the plaintiffs herein and the learned I Additional Junior Civil Judge by a detailed order dismissed the petition on the ground that he being the son the defendants 1 and 2 herein (defendants 2 and 4 in O.S.No.755/79) and also being an Advocate, he is aware of the pendency of the

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- 9 - proceedings in the court and that he is not a bonafide purchaser and that the specific extents purchased after the preliminary decree would not confer title to the same. Thereafter the 3rd defendant herein filed

CMA 38/2004 on the file of Principal District Judge, Visakhapatnam,

against the said orders and also filed an I.A.1859/2004 for stay of execution of the decree in EP1336/2002 and the Honourable Principal

District Judge was pleased to grant interim stay initially for fifteen days

on 12-7-2004 and thereafter the same is being extended. It is submitted that the defendants 1 and 2 herein also filed an application in EA 1212/2003 under Section 47 of CPC to declare the final decree passed in IA.No.749/1996 in O.S.No.766/79 dated 9-8-2002 is nullity and unexecutable. The said application after elaborate enquiry was dismissed by the learned I Additional Junior Civil Judge,

Visakhapatnam on 29-6-2004. It is submitted that in a second appeal filed by the defendants 1 and 2 herein in SA 897/2001 before the

Honourable High Court of Judicature, Andhra Pradesh, Hyderabad

against the preliminary decree in O.S.755/79, the Honourable High

Court limited the same to only 633 sq. yds in their possession which area is partly occupied by the milt storied building as per the orders

dated 18-4-2003. It is submitted that the 1st plaintiff herein filed a

CMP in 8753/2003 in 2n appeal SA 897/2001 praying the Honourable

High Court to pass an order of injunction restraining the defendants 1 and 2 herein from ever alienating or making constructions on the half share of land situate on the southern side of the suit schedule property in O.S.No.755/79 which share has been allotted to the plaintiff's herein pending disposal of the 2nd appeal No.897/2001 preferred by them

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- 10 - against the orders of the Honourable Court of I Additional Senior Civil

Judge, Visakhapatnam made in A.S.386/2000 dt.28-3-2001 preferred

against the preliminary decree of the I Additional Junior Civil Judge,

Visakhapatnam passed in O.S.755/79 dated 24-4-1995. In the said application, the Honourable Court by its order dated 18-4-2003 was pleased to restrain the defendants 1 and 2 herein from ever alienating or making constructions on the half share of the land on the southern side of the schedule property. It is submitted that the 3rd defendant who is no other than the son of 1st and 2nd defendants who has been living with them is also bound by the injunction order granted aginst his father and mother. It is submitted that the unless the schedule land is divided into 2 equal shares (2half shares) it is not possible to say to what extent the defendants 1 and 2 already made constructions and the extent covered by the constructions in excess of their half share of 1210.50 sq yards as by a mere look at the site would show that the portion occupied by the constructions on the northern side of the schedule property is larger than the remaining portion on the south.

3.It is submitted that having obtained the stay of execution, the 3rd defendant herein has started making construction in the entire portion to the West of milt storied complex in order to create further complications. It is submitted that as such constructions without partition by metes and bounds and without knowing the actual extent of 1210.50 sq yds it would be allotted to the share of D1 and D5 in

O.s.No.755/79 and their legal representatives and alienies is contrary

to law and such open and atrocious manner of construction during

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- 11 - pendency of CMA and before partition can not be encouraged by any court of justice and as the third defendant has to be prevented by means of temporary injunction, the 1st plaintiff herein filed an application in I.A.No.3374/2004 in CMA 38/2004 on the file of Principal

District Judge, Visakhapatnam restraining him from making or

proceeding with any type of construction on any portion of the decree schedule land till the disposal of the CMA 38/2004. In the said application, after issuing notice 3rd defendant herein who is the sole respondent in the same application the learned Principal District

Judge,Visakhapatnam directed the respondent by order dated 18-11-

2004 to maintain status quo as on that day. The said application is still pending. In spite of pendency of the said application, the 3rd defendant in scant respect to the status quo orders passed by the

Honourable Court is proceeding with the constructions in the site to

the west of the multi-storeyed complex on the basis of some unenforceable and forged documents, Recently, the plaintiffs came to know that the defendants 1 to 3 herein to get over the orders passed by the High Court in CMP 8753/2003 in SA897/2001 and the status quo orders filed by the learned Principal District Judge in I.A.3374 in

CMA 38/2004 has created/ fabricated some documents in the name of

the 4th defendant and is making attempts to obtain the sanction from the 5th defendant for construction of additional structures in the plaint schedule property even before the half share of the plaintiffs on the southern side is demarcated by meets and bounds and delivered to them with a view to further complicate the matter and to see that the plaintiffs will not be having an inch of open land in the schedule

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- 12 - property before the delivery could be made in the Execution proceedings.It is submitted that the 1st plaintiff on 3-7-2003 and 12-11-2004 addressed letters to the 5th defendant narrating the aforesaid facts requesting them not to grant any permissions for construction of structures in the schedule property and to take appropriate action against the wrongdoers who commence construction in the schedule property without any approved plan for protecting the half share of the plaintiffs in the schedule property. The 1st plaintiff also got issued a notice through her advocate on 9-11- 2004 to take action against the defendants 3 and 4 herein who commenced unauthorized construction in a part of the schedule property and also not to grant any permit/sanction in their favour for commencing construction in the schedule property. As there is no positive response from the 5th defendant and the defendants 3 and 4 are proceeding with construction in a part of the schedule property which is to the west of the multitoried complex, the 1st plaintiff got issued another notice to the 5th defendant on 18-9-2006 with the same prayer as made in the previous notice. These aspects will clearly show that the 5th defendant is openly supporting the defendants 1 to 4 herein and allowing the defendants 3 and 4 to proceed with the construction of the building to the west of the existing milt storied complex in the schedule property and also will go to the extent of granting building permission in the name of the henchmen of the defendants 1 to 4 as the third defendant happens to be an ex- corporator of the 5th defendant and an advocate by profession. As the facts of the 5th defendant in allowing the defendants 1 to 4 raise

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- 13 - constructions in the schedule property and granting permission/ sanction in the name of 3rd parties without verifying the title of the applicants are not in pursuance or in intended execution of the provisions of Hyderabad Municipal Corporation Act, no notice under

Section 685 of the Hyderabad Municipal Corporation Act is necessary.

But, the 1st plaintiff has got issued two notices to the 5th defendant complaining about the acts referred above on 9-11-2004 and 18-9- 2006. It is submitted that as the plaintiffs are entitled to the southern half of 1210.50 square yards of land in the schedule property as per the final decree, they are having every right to protect the same till the same is delivered to them by demarcating the same by metes and bounds in the execution proceedings. If the defendants 1 and 2 who are parties to the suit in O.S.No.755/79 and the 3rd defendant being the appellant in CMA 38/2004, are not entitled to make any further constructions in the schedule property or seek permission for sanction of building plan for making construction in the schedule property in their names or in the names of their henchmen, by producing some forged and fabricated documents. Similarly, the 5th defendant under law is having an obligation to prevent unauthorized constructions in the city would also not to grant approvals to third parties than the real owners by thoroughly investigating their title. As all the defendants have colluded together and are bent upon to make constructions in the entire schedule property, even before the final decree passed in

O.S.No.755/79 is finally executed in EP.1336/2002, the plaintiffs being

the law abiding citizens are constrained to file the present suit to protect their half share in the schedule property from being converted

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- 14 - into a constructed area after fighting the litigation for a period of more than 26 years in various courts at Visakhapatnam and in the High

Court at Hyderabad.

It is submitted that the plaintiffs herein came to know that the 4th defendant executed sale deeds in his favour and in favour of the defendants 6 to 12 herein with regard to the schedule property in

O.S.1935/2006 basing on the power given to him by the third and

12th defendants and he is developing the said property as a co owner and also in his capacity of developer. As such the defendants 6 to 12 are also proper and necessary parties to the present suit as per the orders of the Honourable Court made in I.A.966/2007 dated 19-7- 2010.” Finally plaintiff filed this suit with above prayer.

4.After caused the appearance by defendants they filed the written statement by denying the contention of plaint. The Brief

facts of written statement which are as follows in

OS.2988/2006 :

“ The defendant respectfully submits that Appala Swamy had one son by name Solmon David and daughter by name Rechalamma. This defendant further submits that Guruvulu had five children namely

K.S.Ratnamma, Mariyamma, Kantham, Prabhu Das sand John. This defendant further submits that the I Addl. Junior Civil Judge erroneously accepted I.A.No.584/2001 and I.A.No.585/2001 filed by

D6 to D10 and D11 to D13 in that suit said to have been filed through the sole plaintiff as their G.P.A. Holder by treating them as their shares were declared and determined in the preliminary decree viewing that those defendants were transposed as plaintiffs. This defendant further

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- 15 - submits that against the preliminary decree dated 24-4-1995, D2 and

D4 filed an Appeal A.S.109/95 before II Addl. District Judge Court and subsequently the matter was transferred I Addl. Senior Civil Judge

Court and re-numbered as A.S.386/2000 and the same was also dismissed and against which second appeal S.A.897/2001 filed before the Hon'ble High Court at Hyderabad and the same still pending. It is true plaintiffs 2 to 12 herein filed their individual affidavits in the year 2002 praying the Honourable Court to allot their share by they have not mentioned about the S.A.897/2001 pending before the Honourable

High Court which was preferred against the preliminary decree, and they suppressed that fact and filed I.A.749/1996 I.A.584/2001 and

I.A.585/2001 and obtained final decree. This defendant further submits that the father of plaintiffs 6 to 8 herein namely R.Thomas

David D3 in O.S.755/1979 filed a written statement strongly contending that Rechelamma was a daughter of Appala Swamy and

Mary Sarojini's mother Victoria left the family after her marriage and disclaimed any interest in the suit property and the suit is hopelessly barred by limitation and he is not a co-owner of the plaint schedule property along with Mary Sarojini and the partition deed of 1945 is perfectly valid one. More over the said R.Thomas David (father of plaintiffs 6 to 8 herein) filed a suit O.S.407/1975 against

K.S.Ratnamma and this defendant originally for partition of jpart of plaint schedule property and in that suit 1st plaintiff herein Mary

Sarojini added as D8 and her brothers and sisters were added as D3 to

D7 and none of them filed written statement, claiming their shares over the suit schedule property, and R.Thomas Daid mainly contending

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- 16 - that as per the Regd. Partition deed of 1945 an extent of 595 sq. yards of site fill to the share of Prabhudas, an extent of 1019 sq.yards fell to the share of K.S.Ratnamma and 807 sq. yards of site fill to him (Thomas Daid) his father and sister Rechalamma and as such plaintiffs 6 to 8 herein estopping from claiming any rights in the entire plaint schedule property. So also the other plaintiffs estopping from claiming any rights in the entire plaint schedule property. Therefore the branch of Appla Swamy namely plaintiffs 1 to 12 herein having rights of an extent of 807 sq. yards only out of total extent of 2421 sq. yards.

During the pendency of the said suit O.S.407/75 R Thomas David died and his three sons (who are plaintiffs 6 to 8 herein) were added as

L.Rs and the said suit was decreed on 30-3-1988 and against the decree and judgement this defendant preferred an appeal A.S.156/88

before the Honourable IV Addl. District Judge Court and the said

appeal was allowed on 30-7-2003 with costs with an observation “As per the documents and oral evidence discloses that D1 K.S.Ratnamma perfected title to the suit property by adverse possession. D2 therein (this defendant) proved that D1 became the owner of suit property”.

Against the Decree and Judgement plaintiffs therein, who are plaintiffs 6 to 8 herein preferred second appeal S.A.580/93 before the

Honourable High Court and the same was dismissed on 25-3-2004 as

withdrawn. In the said S.A.580/93 filed by plaintiffs 6 to 8 herein against the other. Plaintiffs herein and this defendant, and as such the said decree and judgement became final and it is binding on all the parties. The decree and judgement in O.S.407/75 operates adjudicate against the Decree and judgement in 755/79 and consequently on the

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- 17 - final decree passed in I.A.749/96, I.A.584/01 and I.A.585/2001 cannot stand. In both suits parties are one and the same and the issue is one and the same. Therefore as per the Regd. Partition deed dated 14-3- 1945 in between Appala Swamy branch and Guruvulu Branch plaintiffs herein have no right and title over the plaint schedule property, and also as per the judgement in S.A.580/93. This defendant further submits that against the common order in I.A.749/96 I.A.584/2001 and I.A.584/2001 and I.A.585/2001 dated 9-8-2002 three appeals were filed by this defendant and D1 before the Honourable Prl. District

Judge Court and were posted for judgements. Plaintiffs have no prima

facie title over the plaint schedule property. There is no cause of action against this defendant and 1st defendant and the cause of action mentioned in the plaint is not correct. Plaintiffs suppressed the facts in O.S.407/75 through all of them and this defendants are the parties. This defendant is law abiding citizen. Balance of Convenience is in favour of this defendant. In view of judgement in S.A.580/ 93 and it will operates resjudicata in O.S.755/79 and the decree and

judgement. There are no bonafidies in this suit. Plaintiffs did not

come to the court with clean hands. The suit is not maintainable under law. Therefore this defendant prays that the suit may be dismissed with costs.

5. Brief facts of written statement filed 3rd defendant are as follows:

“ The defendant submits that the plaintiffs filed E.P.No.1336/2002 for delivery of 1210.50 sq.yds being the southern half share of the suit schedule property and having taken delivery warrant to take possession of a specific extent of schedule property, the plaintiffs

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 18 - cannot now agitate that the schedule property is yet to be demarcated by metes and bounds. The self-contradictory statement of the plaintiffs will lead to a conclusion that plaintiffs should have either mislead the executing court while obtaining the delivery warrant for 1210.50 sq.yds or they are now misrepresenting in the above suit. It is pertinent to here to mention that an Advocate Commissioner was appointed in final decree petition in I.A.No.749/1996 and the Advocate

Commissioner was appointed in final decree petition in

I.A.No.749/1996 and the Advocate Commissioner who was assisted by licensed surveyor found that the total extent is not 2421 sq.yds but only 2100 square yards. The Advocate Commissioner in the sketch appended to his report has also ear-marked a portion of land running from east to west in between northern and southern portion of schedule property for the purpose of way/passage for beneficial enjoyment of all the parties therein. In the above circumstances definitely the plaintiffs would not be having any right over 1210.50 sq.yds of land as it is evident from Advocate commissioner's report that total extent of schedule property is not 2421 sq.yds. Therefore the plaintiffs at this juncture cannot re-agitate that the property was not demarcated by metes and bounds and are estopped from contending so when they have taken delivery warrant for obtaining possession of a specific extent of property. This defendant submit that in the preliminary decree in O.S.755/79 the 1/24th share of the plaintiff was determined and the court did not determine the shares of other defendants and there the final decree in O.S.755/79 should be restricted to 1/24th share of plaintiff only. But the final decrees were

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 19 - passed as if the petitioners have got Half share in the entire property without any determination of their rights. Therefore the same is subject matter of challenge before the Prl. District Judge,

Visakhapatnam in A.S.No.417, 418 & 419/2004 and A.S.No.440, 441/2004.

6.This defendant further submits that the 3rd defendant in

O.S.No.755/1979 by name R.Thomas David filed another suit

O.S.No.407/1975 on the file of I Additional District Munisif Court,

Visakhapatnam for partition of the property which fell the share of his father by name Soloman David in a partition deed dated 14-3-1945 amongst all the sharers who are entitled to the share in the schedule property. The suit O.S.No407/1975 was decreed and as against the same, the defendants 1 and 2 herein preferred an appeal in

A.S.No.156/1988 and the decree and judgement in O.S.No.407/1975

was reversed. As against the same the plaintiffs herein preferred a second appeal in S.No.580/1993 before the Honourable High Court of

A.P. And thereafter got the same dismissed on 25-3-2004 as withdrawn. The second appeal was got withdrawn by the plaintiffs in frenzy mood as by that the final decrees were passed in

O.S.No.755/1979. Thereafter, the defendants 1 and 2 herein and the

vendor of this defendant preferred appeals before the Principal District

Judges Court, Visakhapatnam against final decree passed and rights

of the plaintiffs under final decrees are sub-judice in view of the appeals pending before Honourable Prl. District Judge's Court,

Visakhapatnam. This defendant submits that he is the absolute owner of an extent of 582.33l square yards having purchased the same under

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 20 - three different registered sale deeds Dt.10-5-1999, 11-5-1999 and 12- 5-1999. Out of total extent of 582.33 square .yards, 306 square yards which was purchased by this defendant is situated towards north-west of the total extent of the suit schedule property and 282.22 sq.yds is situated towards south-west of the suit schedule property.

The above property was purchased by this defendant from J.Mohan

Roy who is the 5th defendant in O.S.No.755/1979. The said J.Mohan

Roy succeeded to the property by way of testate succession under a registered Will executed by K.S.Ratnamma who is the 1st defendant in

O.S.No.755/1979. The said K.S.Ratnamma got the property under a

registered partition deed dated 14-3-1945 which was described as A schedule in the said partition deed. The said K.S.Ratnamma also purchased the share of Rechalamma who is another sharer and party to the partition deed dated 14-3-1945. In view of decree and

judgement in O.S.No.407/1975 and A.S.No.156/1988 the said J.Mohan

Joy's right in respect of A& B schedule properties covered by partition deed dated 14-3-1945 are confirmed and as such this defendant has got absolute title to said extent which is purchased by him through

J.Mohan Roy under the Sale Deeds referred above. Likewise, one Smt

Lalam Garikamma purchased an extent of 125 sq.Yds of land under a registered sale deed dated 8-8-1996, registered as document

No.2577/1996 and the said property is also situated in the northern part of the schedule property. The property purchased by this defendant under the sale deeds dated 10-5-1999 and 11-5-1999 and property purchased by Lalam Garikamma are abutting to each other and this defendant as well as said Lalam Garikamma used to enjoy the

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 21 - property a single block of land. At this juncture as the decree and judgment in O.S.No.407/1975 have attain finality the plaintiffs have no right over the schedule property. Therefore, the plaintiffs now cannot seek any injunction against this defendant who a true owner. The plaintiffs herein after understanding the legal consequences of the decree and judgement in O.S.No.407/1975 and it is effect over the final decree applications filed by them upon some loathsome advices resorted to this litigation by twisting and misrepresenting the facts.

The attempt of the plaintiffs in filing above suit is to start a fresh round of litigation as the decree and judgement in O.S.No.407/1975 is binding on them and that in view of the said decree they do not have any right over the schedule property. In any view of matter, it is submitted that plaintiffs herein have misrepresented the fact before this Honourable Court while filing above suit by stating that they are entitled to an injunction over the total extent of 2421 square yards

The plaintiffs being well aware that schedule property in

O.S.No.755/1979 is demarcated the filed the suit mischievously and

with a malafide intention to deprive this defendant from enjoying his own property. This defendant submits that above suit is a vexatious litigation initiated by the plaintiff. The plaintiffs while contending on one hand that status quo orders granted by Hon'ble Principal District

Judges Court, Visakhapatnam and Honourable High Court of A.P. Are in

force, cannot, again seek injunction against same property when a similar relief is already granted, for it would be subjecting this defendant to litigation for the same issue several times. In fact, plaintiffs have no right to make any claim over the property of 4th

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 22 - defendant as same is situated towards north-west of the suit schedule property and since plaintiffs were allotted southern side of schedule property, they cannot seek any injunction over entire extent much less the extent situated towards north of plaint schedule.

7.This defendant further submit that the suit is totally ill- conceived and engineered only to escape from the consequences that flow from the decree in O.S.No.407/1975 and A.S.No.156/1988 where under tile of this defendant's vendor is conformed with regard to properties covered by schedule A & B properties in Partition Deed

dated 14-3-1945. This defendant submits that above suit is benefit of

merits and the same lacks bonafides. The suit is bad of mis-joinder and non joinder of necessary parties and there is no cause of action for plaintiffs to file above suit. The cause of action mentioned in plaint is not correct and plaint schedule is also not correct as there is no such extent on ground within said boundaries. The plaintiffs of guilty of suppressing material facts and they are to be non-suited for the equitable relieves claimed in the suit. This defendant pays the Hon'ble court to dismiss the suit with costs against this defendant.

8. The Brief facts of 4 th defendant’s written statement which are as follows:

“This defendant submits that one Smt.Lalam Garikamma, W/o

Late Kanakayya and Sri.Thynala Vijay Kumar, S/o Sri.T.Musalayya, were the absolute owners of the property of an extent of 431.32 square yards together with a house bearing D.No.29-9-3, Assessment

No.24175, situated at Lalitha Colony, Dabagardens, Visakhapatnam, having purchased the same under separate registered sale deeds

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 23 -

dated 8-8-96, 10-5-99 and 11-5-99 registered as document

No.2577/1996, 1802 and 1834/99 from a common vendor Sri.J.Mohan

Roy and were in possession and enjoyment of the same as absolute owners. While Lalam Garikamma purchased an extent of 125 sq.yds together with a thatched house bearing D.No.29-9-3 at Lalitha Colony,

Dabagardents, Visakhapatnam under registered sale deed dated 8-8- 956 registered as document No.2577/96, the other purchasers

Sri.T.Vijay Kumar purchased an extent of 140 sq.yeds together with tiled house bearing D.No. 29-9-3, Assessment No.24175 under a registered sale deed dated 10-5-99, and another extent of 166.32 sq.yds under a registered sale deed dated 11-5-99. It is submitted that the above said Smt.Garikamma and Sri.Vijay Kumar herein after referred to as the vendors, for the purpose of brevity, were enjoying the entire property of 431.32 sq.yds as a single block of land. In respect of the house bearing No.29-9-3 situated in the said property,

Sri.T.Vijay Kumar used to pay property tax as the said property stood assessed in his name.

9.While it is so, the same vendors, on 6-7-2004 executed an

Agreement to sell with General power of Attorney in favour of this defendant, which was registered as document No.1468/2004, for an extent of 258.78 sq. yards together with a tiled house measuring 200 sq.ft, and have authorized this defendant to execute sale deed or sale deeds on their behalf to their nominees, and delivered physical possession of the same. Thus this defendant has been in the lawful possession and enjoyment of the suit property ever since then. This defendant has been praying the electrical consumption charges in

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 24 - respect of the suit-schedule property which service connection still stands in the name of one of the vendors of this defendant.

10.Pursuant to the said registered General Power of Attorney, this Defendant demolished existing structures in the plaint-schedule property with a view to construct group housing in the name & style of “Madhuvan Towers”. This defendant also submitted a plan in

B.A.No.2003-BA-10920-ACP-1/G-2 dated 8-10-2003 to the Municipal

Corporation, Visakhapatnam and the said plan was duly approved by the corporation as per the proceedings dated 8-10-2003. It may be relevant to submit herein that the defendant was granted three years time to complete the construction from the date of approval of the plan. After thus securing the approval, this Defendant, on the strength of the Registered General Power of Attorney cum Agreement to sell dated 6-4-2004 executed registered sale deeds in his favour and also in favour of his wife, daughter, nephew and another, in respect of undivided and unspecified extent of the suit property and has taken up the development of the entire property, by entering into development agreements with them. Thus the defendant being a co- owner of the undivided and unspecified extent of the suit property and as a developer of the remaining extent of undivided and unspecified share of the property, has been in physical possession and enjoyment of the suit property and has been carrying on the construction therein as per the approved plan. While it is so, the 1st plaintiff herein who has nothing to do with the suit-schedule property, all of a sudden on 22-8-2006, came near the suit schedule property, along with her husband and some unknown group of people and demanded this

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 25 - defendant who was supervising the constructions therein to vacate the same forthwith lest she would throw the defendant and the material from the suit site and occupy the same by force. She abused the defendant using foul language and threatened to implicate this defendant in a criminal case and would see to it that this defendant is ousted of the possession and enjoyment of the suit property. Shocked and surprised by the sudden, unjust and high-handed demand of the 1st plaintiff, the 4th defendant pleaded that the suit property has been lawfully purchased and has been in the possession and enjoyment of the same ever since from the purchase and from the time of entering development agreements, therefore the 1st plaintiff cannot resort to high-handed acts or make illegal demands but 1st plaintiff did not care to listen to this defendant and insisted that the defendant to stop the work and remove the watchman staying in the suit property and the material lying therein, and handover the same to her. Under those circumstances this Defendant, on 22-8-2006, lodged a complaint

before the Commissioner of police, Visakhapatnam regarding the

illegal and high-handed threats of the 1st plaintiff and her men and prayed for suitable action. The said complaint was acknowledged by the police under receipt dated 22-8-2006. Later the police advised the 1st plaintiff and her men and prayed for suitable action. The said complaint was acknowledged by the police under receipt dated 22-8- 2996. Later the police advised the 1st plaintiff not to resort to illegal and high-handed acts as the defendant has got proper documents and also an approved plan for making construction in the suit-schedule property. Despite the said advice the 1st plaintiff again on 23-8-2006

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 26 - once again came along with more men and demanded the Defendant to vacate the suit property and handed over the same to her, lest they would high-handed occupy the same land demolish the existing structures therein. However on intervention of the neighbours and the efforts of the watchman, this defendant could stop the illegal and high- handed attempts on the part of the 1st plaintiff temporarily. The 1st plaintiff, while leaving, claimed that she would come with more men and occupy the suit property in a day or two by dispossessing the

Defendant. This defendant submits that he has been in lawful possession and enjoyment of the suit property and having secured the approval of the plan has every right to make construction in the suit property as per the approved plan, which was have obtained from the

Municipal Corporation. The 1st plaintiff has no right to disturb the lawful possession and peaceful enjoyment of the suit property that too in a high-handed and illegal manner. If at all the 1st plaintiff has any right under law it is open for the 1st plaintiff to approach the court of law for necessary relief’s, but cannot take law into her hands and oust this Defendant from the possession and enjoyment of the suit property. Under these circumstances this defendant filed suit in

O.S.1935/2006 on the file of II Additional Junior Civil Judge,

Visakhapatnam on 24-8-2006 and obtained interim injunction restraining the 1st plaintiff, her men and agents from interfering with the possession and enjoyment of the property of this defendant, vide orders in I.A.574/2006 dated 24-8-2006. The said fact is well within the knowledge of the 1st plaintiff and other plaintiffs. However the plaintiffs suppressed the same and got filed the present suit as such

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 27 - the suit is liable to be dismissed on this ground itself. It is submitted that prior to and after filing of O.S.No.1935/2006, this defendant alone has been in possession and enjoyment of the suit property, so much so as the suit as filed for a bare injunction without having possession of the suit property of any manner, the suit is unsustainable under law hence liable to be dismissed. This defendant submits that he is not aware of the earlier litigation and the suits and interlocutory applications that were referred in the plaint and he is also not a party to the same. So much so this defendant at this stage is reserving his right to comment on these allegations however the defendant vehemently denies the binding nature of the earlier legal proceedings referred in the plaint on this defendant. This defendant reserves his right to traverse in detail, if necessary after ascertaining the true facts regarding the suit O.S.755/79 and its related matters, from his vendor in due course. This defendant reiterates that he is a bonafide purchaser of the suit property without any notice and the plaintiffs are fully aware of the same and the plaintiffs having acquiesced with lawful title and possession of the suit property and its enjoyment including the constructions that were made even prior to filing of

O.S.No.1935/2006 by this Defendant, is estopped under law from

questioning the same in any manner whatsoever. Hence it is submitted that the suit as filed is wholly unsustainable and is liable to be dismissed. It is submitted that the cause of action mentioned is incorrect and invented, in fact there is no cause of action at all for filing the present suit. The plaintiffs indulged in gross misrepresentation and suppressed material facts. Hence the suit is

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 28 - liable to be dismissed in lemini. It is submitted that the suit is not properly valued and the court fee paid by the plaintiffs are incorrect and the suit is liable to be dismissed on this ground also. It is therefore humbly prayed your Honourable Court may be pleased to dismiss the suit with exemplary costs, in the interests of justice”.

The Brief facts of 5 th defendant’s written statement which are

as follows:

11.“ This defendant Corporation submitted that permission was granted for construction of residential building consisting of Ground + 2 upper floors ink favour Sri. Rama Rao vide proceedings in

B.A.No.10920/2003 Dt.10-10-2003 subject observance of certain conditions as laid down in proceedings. The plan were approved in the year 2003. The construction has been commenced and completed except some finishing works. Whereas, the plaintiff submitted a representation on 18-9-2006 by which time the construction was almost all completed over the suit west of the apartment. However, this defendant Corporation issued a reply to the plaintiff to produce documentary evidence to substantiate his claim to the complaint/letter

Dt:18-6-2006. It is submitted that according to Town Surveyor

Register, the land in T.S.No1459 Block No.42 of Allipuram Ward to an extent of 2153Sq.Yds. Stands in the name of one Reyyi Appayya. As far as shares in the property are concerned, this defendant

Corporation has no information. This defendant Corporation further submit that no prima facie case and balance of convenience and the

Hon'ble Court grants any injunction this Corporation will be put to

hardship. Finally they prayed to dismiss the suit with costs.

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 29 -

12. Basing on the pleadings of both the parties, the following issues framed by the court for trial in O.S.2988/2006 :

1. Whether plaintiff has right on suit schedule property or not?

2. Whether plaintiff is entitled permanent injunction against D1 to D4, D6 to D12 as prayed for ?

3. Whether plaintiff is entitled mandatory injunction in

respect of plaint schedule property as pleaded by plaintiff.

4. Whether plaintiff is entitled to directed the 5th defendant

to demolish the construction made in plaint schedule property

as it is unauthorized construction or not ?

5. Whether plaintiff is entitle permanent injunction against

5th defendant by restraining him to grant any

permission/sanction for construction in suit schedule property.

6. To what relief?

O.S.No.1935/2006

Between:

Pendyala Rama Rao, S/o Late Narayya, Hindu, 49 years, landlord, residing at Door NO.15-12-22/9, Flat No.301, Suraj Apartment, Opp.Simhadri Hospital, Krishna Nagar, Visakhapatnam.

...Plaintiff

And:

Smt. Mary Sarojini, S/o Victoria Moses, Christian, aged 56 years, residing at D.No.34, Hall Road, Kilpank Gardens, Chennai, now present at Visakhapatnam.

...Defendants

This suit is coming on 18.4.2015 for final hearing before me in the presence of Sri.M/s Badarinath & Madhan Mohan learned Advocate for plaintiff, and of Sri. V.V.Ravi Prasad learned Advocates for the defendants and having stood over for consideration to this day, this court delivered the following:

13.The brief averments of the plaint are as follows in

O.S.1935/2006:

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 30 - “ It is humbly submitted that one Smt.Lalam Garikamma, W/o

Late Kanakayya and Sri.Tynala Vijay Kumar, S/o Sri.T.Musalayya, were the absolute owners of the property of an extent of 431.32 square yards together with a house bearing D.No.29-9-3, Harassment

No.24175, situated at Lalitha Colony, Dabagardens, Visakhapatnam, having purchased the same under separate registered sale deeds

dated 8-8-1996, 10-5-99 and 11-5-99 registered as Document

No.2577/1996, 1802/99 and 1834/99 from a common vendor Sri.

J.Mohan Roy and were in possession and enjoyment of the same as absolute owners. While Lalam Garikamma purchased an extent of 125 sq.yards together with a thatched house bearing D.No.29-9-3 at

Lalitha Colony, Dabagardens, Visakhapatnam under registered sale deed dated 8-8-96 registered as document No.2577/96, the other purchaser Sri.T.Vijay Kumar purchased an extent of 140 sq.yards together with tiled house bearing D.No.29-9-3, Assessment No.24175 under a registered sale deed dated 10-5-99, and another extent of 166.32 sq.yards under a registered sale deed dated 11-5-99. The xerox copies of the sale deeds of Lalam Garikamma & Sri.T.Vijay

Kumar are filed herewith for the kind perusal of you Honourabe Court, which may kindly be read as part of this plaint. It is submitted that the above said Smt.Garikamma and Sri. Vijay Kumar herein after referred to as the vendors, for the purpose of brevity, were enjoying the entire property of 431.32 square yards as a single block of land.

In respect of the house bearing D.No.29-9-3 situated in the said property, Sri.T.Vijay Kumar used to pay property tax as the said property stood assessed in his name. A xerox copy of the property tax

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 31 - book issued by the Municipal Authorities is filed herewith for the kind perusal of your Honourable Court, which may kindly be read as part of this plaint. While it is so, the said vendors, o 6-4-2004 executed an

Agreement to sell with General power of Attorney in favour of the plaintiff herein, which was registered as document No.1468/2004, for an extent of 258.78 sq.yards together with a titled house measuring 200 sq.ft, more fully described in the schedule annexed hereto which may kindly be read as part of the plaint and have authorized the plaintiff to execute sale deed or sale deeds on their behalf to their nominees, and delivered physical possession of the same. A copy of the agreement of sale cum General Power of Attorney dated 6-4-2004 is filed herewith for the kind perusal of your Honourable Court, which may kindly be read as part of this plaint. Thus the plaintiff has been in the lawful possession and enjoyment of the suit property ever since then. The plaintiff has been paying the electrical consumption charges in respect of the suit-schedule property which service connection still stands in the name of one of the vendors of the plaintiff. The latest original bill dated 11-8-2006 is filed herewith for the kind perusal of your Honourable Court, which may kindly be read as part of this plaint.

14.Pursuant to the said registered General Power of Attorney, the plaintiff herein, demolished the existing structures in the plaint- schedule property with a view to construct group housing in the name & style of “Madhuvan Towers”. The plaintiff also submitted a plan in

B.A.No.2003-BA-10920-ACP-I/G-2 dated 8-10-03 to the Municipal

Corporation, Visakhapatnam and the said plan was duly approved by the corporation as per the proceedings dated 8-10-2003. It may be

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 32 - relevant to submit herein that the plaintiff was granted three years time to complete the construction from the date approval of the plan.

A true copy of the approved plan along with the proceedings dated 8- 10-2003 is filed herewith for the kind perusal of your Honourable

Court, which may kindly be read as part of this plaint.

15.After thus securing the approval, the plaintiff, on the strength of Registered General Power of Attorney cum Agreement to sell dated 6-4-2004 executed registered sale deeds in his favour and also in favour of his wife, daughter, nephew and another, in respect of undivided and unspecified extent of the suit property and has taken up the development of the entire property, by entering into development agreements with them. Thus the plaintiff being a co-owner of the undivided and unspecified extent of the suit property and as a developer of the remaining extent of undivided and unspecified share of the property, has been in physical possession and enjoyment of the suit property and has been carrying on the construction therein as per the approved plan. The plaintiff is herewith filing the Registered

Development Agreements entered by the purchasers of the undivided and unspecified extents of the suit property , for the kind perusal of your Honourable Corut, which may kindly be read as part of this plaint.

While it is so, the Defendant herein who has nothing to do with the suit-schedule property, all of a sudden on 22-8-06, came near the suit property, along with husband and some unknown group of people and demanded the plaintiff who was supervising the constructions therein to vacate the same forthwith lest she would throw the plaintiff and the material from the suit site and occupy the same by force. She abused

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 33 - the plaintiff using foul language and threatened to implicate the plaintiff in a criminal case and would see to is that the plaintiff is ousted of the possession and enjoyment of the suit property.

Shocked and surprised by the sudden, unjust and high-handed demand of the defendant, the plaintiff pleaded that the suit property has been lawfully purchased and has been the chaser and from the time of entering development agreements, therefore the Defendant cannot resort to high-handed acts or make illegal demands but

Defendant did not care to listen to the plaintiff and insisted that the plaintiff to stop the work and remove the watchman staying in the suit property and the material lying therein, and handover the same to her.

Under those circumstances the plaintiff, on 22-8-2006, lodged a complaint before the Commissioner of Police, Visakhapatnam regarding the illegal and high-handed threats of the Defendant and her men and prayed for suitable action. The said complaint was acknowledged by the police under receipt dated 22-8-06. The original acknowledgement dated 22-8-06 of the receipt and a copy of the complaint are filed herewith for the kind perusal of your Honourable

Court, which may kindly be read as part of this pliant. Later the police advised the Defendant not to resort to illegal and high-handed acts as the plaintiff has got proper documents and also an approved plan for making construction in the suit-schedule property. Despite the said advice the Defendant again on 23-8-2006 once again came along with more men and demanded the plaintiff to vacate the suit property and handover the same to her, lest they would high-handed occupy the same and demolish the existing structures thereon. However on

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 34 - intervention of the neighbours and the efforts of the watchman, the plaintiff could stop the illegal and high-handed attempts on the part of the Defendant temporarily. The defendant, while leaving, claimed that she would come with more men and occupy the suit property in a day or two by dispossessing the plaintiff. The plaintiff submits that he has been in lawful possession and enjoyment of the suit property and having secured the approval of the plan has every right to make construction in the suit property as per the approved plan, which was have obtained from the Municipal Corporation. The defendant has no right to disturb the lawful possession and peaceful enjoyment of the suit property that too in a high-handed and illegal manner. If at all the

Defendant has any right under law it is open for the defendant to approach the court of law for necessary reliefs, but cannot take law into her hands and oust the plaintiff from the possession and enjoyment of the suit property. As the defendant, with the help of her henchmen, is consistently threatening him, the plaintiff has no option left but to approach this court for the relief of permanent injunction and other reliefs. Hence this suit.

16. After caused the appearance by defendants they filed the written statement by denying the contention of plaint. The Brief facts of written statement which are as follows:

“The suit was filed is bad in law and on facts and therefore liable to be dismissed in limini. This Defendant submits the real facts of the case, before averting to the case set up by the plaintiff, for the sake of convenience. This defendant submits that initially one Appayya was the owner of land measuring 2421 Sq.yards of site in T.S.No.1459,

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 35 -

Block NO.42, Lalitha Colony, Dabagardens, Visakhapatnam. The said

Appayya had two children by name Appalaswamy and Guruvulu.

Applaswamy had one son by name Solmon David. The said Solman

David had two children Keti Victoria (Victoria Moses) and Thomas

David. It is submitted that Keti Victoria died in the year 1940. She was blessed with 6 Children, who D.Mary Sarojini, this defendant

V.M.Kripa Rao, Jaya Rao, V.Raju, Winniefred and V.Sampoornamma.

Out of them Jaya Rao, and Winniefred, are no more. Late Jaya Rao, has one daughter, by name K.Vijaya Kumari, Late Winniefred was blessed with four children. It is submitted that Thomas David, who is the brother of Victoria Moses has three children, who are R.T.Appa Rao

David, R.T.David Madhava Rao and R.T.Suresh Babu. It is therefore submitted that the surviving Children and Grand children of Victoria

Moses and the surviving Children and Grand children of Victoria Moses and the surviving children and grand children of Thomas David, represent the estate of late Appalaswamy, son of Appayya. It is submitted that Guruvulu, the second son of Appayya, was blessed with three Children i.e., K.S.Ratnamma, K.Kanthamma and Prabhudas.

17.It is submitted that Appayya, who was the owner of the property stated above, died without making any testamentary disposition of the property, resultantly, the property devolved upon his two children i.e., Applaswamy and Guruvulu in equal shares. It is submitted that incidentally Appalaswamy and Guruvulu, who were brothers, also did not make any testamentary disposition, resulting devolution of the property on to their children, as per rules of succession. It is submitted that there was no division of the property

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 36 - between Appalaswamy and Guruvulu and they continued to hold the property jointly and in common during their lifetime. It is submitted that when the children of Guruvulu, Son of Appayya, started acting detrimental to the interests of the other co-owners, this Defendant, who had succeeded to the estate of her great grand father

Appalaswamy, filed a suit in O.S.No.755/1979 on the file of Honourable

Court of 1st Additional Junior Civil Judge, Visakhapatnam, involving the legal heirs of Guruvulu, involving all her brothers, sisters, maternal uncle R.Thomas David and others, for a declaration that she has 1/24th share in the property devolved on her through Appayya, showing the entire property as Plaint schedule property therein and for partition of the suit schedule property in the said suit, into 24 equal shares and for allotment of one such share to her and for putting her in physical possession of such separated share. It is submitted that during the pendency of the said suit, R.Thomas David, the maternal uncle of the plaintiff in the said suit (defendant in this suit) died and therefore his legal heirs were brought on record as defendants 11 to 13 therein. It is submitted that by the time of filing the suit,

K.S.Ratnamma, the first daughter of Guruvulu and the son of

Kanthamma, the second daughter of Guruvulu, by name Mohan roy, representing the estate of Kanthamma, were only alive and the remaining legal heirs representing the branch of Late Guruvulu, died and paradoxically except Kathamma, were only alive and the remaining legal heirs representing the branch of Late Guruvulu, died and paradoxically except Kanthamma, the other legal heirs of

Guruvulu, who were no more by the time of filing of the suit, have no

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 37 - issues to succeed to their estate and thus, the estate of Guruvulu, devolved upon his first daughter of K.S.Ratnamma and his grand son,

Mohan Roy, son jof Kanthamma. It is submitted that K.S.Ratnamma was the first Defendant in the suit and Mohan Roy was the 5th

Defendant. It is submitted that after filing the suit and during its pendency, the 1st Defendant K.S.Ratnamma died and she had no issues. It is submitted that the said suit was mainly contested by D1,

D2, D3 and D5 therein. It is submitted that D2 in O.S.No.755/1979 contended that she purchased an extent of 633 Square yards by means of a registered sale deed Dt.13-11-1973 from K.S.Ratnamma, the 1st Defendant in the suit and that she was a bonafide purchaser, interalia contending that the plaintiff in the said suit, was not entitled for relief of partition. It is submitted that on all other material aspects, D2 and D4 who are wife and husband, in the said suit

O.S.No.755/1979 have adopted the contention raised by the 5th

defendant Mr.Mohan Roy, the lone surviving legal heir of Guruvulu. It is submitted that after a full dressed trial the said suit was decreed by the Honourable court by Decree and Judgement Dt.24-4-1995 holding that the plaintiff therein (Defendant in this suit), is entitled to 1/24th share in the pliant schedule property land also for partition of the same and allotment of possession of one such share among 24 shares.

It is submitted that in the said Decree and Judgement, the Honourable 1st Additional Junior Civil Judge, observed that D2 and D4 i.e., one

Tynala Dalamma and Musalaih, in the suit O.S.No.755/1979 and who claimed to have purchased some extent from K.S.Ratnamma or from her legal heir, are entitled to such extent of property purchased from

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 38 - the share of K.S.Ratnamma. It is submitted that this Defendant, who is the plaintiff in the above suit O.S.No.755/1979, filed an application in I.A.No.749/1996 under Or.20 Rule 12 of C.P.C., praying the

Honourable court to appoint a Commissioner for partition of the Pliant

Schedule property into 24 equal shares by metes and bounds and for allotment of one such share to her, in accordance with the preliminary

Decree Dt.24-4-1995. It is submitted the Honourable court was pleased to appoint one G.Bhaskara Rao, Advocate, as commissioner.

It is submitted that the said Commissioner executed the Warrant and filed his report on 29-6-1999 along with sketches. It is submitted that similarly, those Defendants in the said suit, claiming share through Victoria Moses, the mother of this defendant and plaintiff in the above suit, filed applications in I.A.No.584/2001 and

I.A.No.585/2001 for passing decrees for their respective shares in the total schedule property. It is submitted that they filed individual affidavits praying the Honourable court for allotment of their shares adjacent to the share of the plaintiff in the suit. It is submitted that the plaintiff in the said suit, as Attorney of the applicants in fact presented those applications. It is submitted that the Honourable

Court was pleased to allow both the applications by a common order

Dt.9-8-2002. It is submitted that ultimately, the respective shares of all the descendants of Appalaswamy, Son of Appayya, were determined, covering half of the schedule mentioned property in the said suit i.e., 1210.50 Sq.yards, being the southern part of the suit schedule property. It is submitted the Honourable Court had allotted the constructed area which is in the northern part of the suit schedule

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 39 - property to Defendants 1 and 5 their successors, subsequent purchasers etc., In the orders passed in the final Decree of the said suit, the Honourable court also observed that in case defendant 1 and 5 of the said suit are entitled to any additional site apart from the site covered by the multi storied building to make 1210.50 Sq.yards of site of their share in total, they can have the remaining site adjoining the said multi storied building situated in the northern part of the suit schedule property of the said suit i.e.,O.S.No.755/1979. It is submitted that the above kind of equitable partition was necessitated on account of the fact that either Defendants 1 and 5 in the said suit or persons who purchased extents from them during the pendency of the suit made huge constructions on the northern side and after preliminary Decree was passed. It is submitted that thereafter the plaintiff (Defendant in this suit) in O.S.No.755/1979 along with the other member representing the branch of their great grand father

Appalaswamy, filed E.P.No.1336/2002 on the file of Honourable Court of Ist Additional Junior Civil judge, Visakhapatnem, for working out the directions contained in the Final Decree and for delivery of their 1210.50 Sq.yards of site, being the southern part of the suit schedule property. It is submitted that the Honourable executing court was pleased to order delivery of the property, but one Tynala Vijaya Kumar, son of Tynala Dalamma, obstructed delivery and therefore he bailiff of the Honourable Court returned warrant of delivery without execution, with report of obstruction. It is submitted that thereafter the father and mother of the said Tynala Vijaya Kumar by name Tynala Musalayya and Tynala Dalamma and the legal heirs of defendant No.5 in

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- 40 -

O.S.No.755/1979 filed number of petitions. It is submitted that

Mr.Tynala Vijaya Kumar also filed E.A.No.1225/2003 in

E.P.No.1336/2002 under Order 21 Rule 97 C.P.C. To declare his title

and for injunction not to dispose of him and to close

E.P.No.1336/2002. In the said application Mr.Vijaya Kumar contended

that in addition to 1054 sq.yards purchased by his mother – in law, his mother who is the 2nd defendant in O.S.No.755/1979 and one

Lakshmayya purchased 296 square yards from the 1st defendant in

O.S.No.755/1979 under two registered sale deeds dt.10-5-1999 and

11-5-1999 and that he also purchased a site along with A. C.roofed building covering an extent of 282 sq. yards from the 5th defendant in

O.S.No.755/1979 by means of a registered sale deed dt.12-5-1999.

In the said application the 306 sq.yards of site purchased by him from the 5th defendant in O.S.No.755/1979 under the two registered sale deeds stated above was demarcated as IJKEOPL in the sketch attached to the said application, which is towards the north-west of the schedule property and the piece of land ad measuring 282 Sq.yards purchased by him, under a registered sale deed dt/12-5-1999, was shown as EKJMD, situated towards south-west corner of the plaint- schedule property, in the sketch attached to the said petition. It is submitted that thus the family members of Tynala Vijaya Kumar and

Lakshmayya, who have claimed acquisition of rights through either D-1 or D-5 in O.S.N.755/1979 or from the descendants of Guruvulu,

Appayya, contended that they have 1642 Square yards out of the total extent of 2421 sq.yards, as against 1210.50 Square yards as per the

Preliminary Decree already passed. It is submitted that after complete

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 41 - adjudication, the Honourable court of I Additional Junior Civil Judge, was pleased to dismiss E.A.1225/2003 filed by Mr.Tynala Vijaya Kumar, holding that either Mr.Vijayakumar or their family members or persons claiming through the descendants of Guruvulu, cannot claim right over and above 1210.50 Sq.yards and also observed that Mr.Vijaya Kumar, who is an Advocate by profession, was aware of the proceedings pending before the court and that he was not bonafide purchaser. It is submitted that Defendants 2 and 4 in O.S.No.755/1979 who are the parents of Mr.Tynala Vijaya Kumar, also filed E.A.No.1212/2003 under section 47 of C.P.C. to declare that the Final Decree passed in

I.A.No.749/1996 in O.S.No.755/1979 Dated 9-8-2002, as nullity and in executable. The Honourable court of I Additional Junior Civil Judge,

Visakhapatnam, on 29-6-2004 dismissed the said application. It is submitted that the parents of Tynala Vijaya Kumar, who are defendants 2 and 4 in O.S.755/1979, filed A.S.386/2000 on the file of

Honourable court of I Additional Senior Civil Judge, Visakhapatnam,

impugning the preliminary Decree and Judgement Dt.24-4-1995 in

O.S.No.755/1979. It is submitted that A.S.386/2000 was dismissed,

confirming the Decree of the Lower Court, on 28-3-2001. It is submitted that, without stopping there, the appellants in A.S.386/2000 aggrieved by dismissal of the Appeal, filed S.A.897/2001 on the file of

Honourable High Court of Judicature and the same is pending as on

day. It is submitted that this defendant, who is the 1st Respondent in the Second Appeal, filed a civil Miscellaneous petition in CMP 8753/2003, for an injunction restraining the Appellants therein from alienating or making constructions in the half share, being the

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 42 - southern part of the suit schedule property allotted to her and to all the descendants of her great grand father, Appalaswamy in the preliminary Decree. It is submitted that the Honourable High Court was pleased to allow the application by order Dt.18-4-2003, restraining the Appellants therein, not to alienate or make construction in, the southern side half share of the suit schedule property. It is submitted that Mr.Tynala Vijaya Kumar, is also bound by the said orders, being the son to the Appellants in S.A.No.897/2001. It is submitted that the preliminary Decree of the court below was stayed to the extent of only 633 Sq.yards which was in their possession and which was partly occupied by multi storied building. It is submitted that aggrieved by the Orders in E.P.No.1225/2003, Mr.Tynala Vijaya

Kumar filed C.M.A.38/2004 on the file of Honourable Court of Principal

District Judge, Visakhapatnam and also filed I.A.No.1859/2004 in the

said C.M.A., for stay of execution of the Decree in E.P.No.1336/2002 and the Honourable court was pleased to grant stay and the same is being extended from time to time and the said C.M.A. Was dismissed with costs confirming the Decree and Order of the Trial Court vide orders dt.19-4-2007. It is submitted that Mr.Tynala Vijaya Kumar, taking advantage of the stay orders obtained by him in

I.A.No.1859/2004 in C.M.A.38/2004, started making construction in the entire area situated to the west of the multi storied building already in existence over the suit schedule property in

O.S.No.755/1979. It is submitted that this outrageous attitude of

Mr.Vijaya Kumar, forced this defendant to file an application in

I.A.No.3374/2004 in C.M.A.38/2004 for temporary injunction,

I AJCJ/VSP

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- 43 - restraining the Appellant i.e., Mr.Tynala Vijaya Kumar, from making any constructions in the suit schedule property. It is submitted that the

Honourable court was pleased to order statuesque. It is submitted

that, first of all the matter is sub-judice, in as much as a preliminary decree was already passed in O.S.No.755/1979, declaring the right of this defendant and other descendants of Appalaswamy, to he extent of 1210.50 Sq.yards in the total extent of 2421 Sq.yards, the southern portion in the entire extent was already identified to be allotted to their share and the delivery proceedings were pending before the

Honourable executing court which could have been over long back, but

for the frivolous petitions filed by Mr.Tynala Vijaya Kumar and his parents, and secondly restraint orders were in force against the parents of Mr.Vijaya Kumar, in C.M.P8753/2003 in S.A.897/2001 on the file of Honourable High Court of A.P., not to alienate the property or to make constructions and against Mr.Vijaya Kumar, himself, in

I.A.3374/2004 in C.M.A.38/2004 on the file of Honourable court of

Principal District Judge, Visakhapatnam. Further, the entire property is

yet to be divided into two half shares, the occupied by constructions is to be find out and the area in occupation of Tynala Dalamma, Tynala

Musalaiah, the Defendants 2 and 4 in O.SNo.755/1979, their family and all such persons claiming right through them in excess of their entitlement in terms of preliminary Decree, shall be determined. But, unfortunately Mr.Vijaya Kumar and his family members, who have already exhibited scant respect for the orders of the court, in order to escape from the restraint orders, hanging on their head, believed to have executed some sham and nominal documents in favour jof this

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 44 - plaintiff Mr.P.Rama Rao. It is submitted that this defendant come to know that the plaintiff herein was about to obtain sanction from the

Greater Visakhapatnam Municipal Corporation for construction of building in the schedule property in O.S.No.755/79. It is submitted that this defendant on 3-7-2003 and 12-11-2004 addressed letters to the Corporation narrating the facts and requesting not to accord any permission for construction of structures and to take appropriate action against the wrongdoers. It is submitted that this defendant also got issued a notice through her Advocate on 9-11-2004 to take action against Mr.Tynlala Vijaya Kumar and the plaintiff herein who have commence unauthorized constructions in part of the suit schedule property in O.S.755/79. This defendant got issued another notice to the Corporation on 18-9-2006 complaining making unauthorized constructions, as there was no response to the earlier notice. It is submitted that the Municipal Corporation has facilitated this plaintiff to proceed with the construction of the building to the west of existing building in the schedule property in O.S.No.755/79. It is submitted that what remained in O.S.No.755/79 is only physical handing over of 1210 sq.yards being the southern part of the schedule property in

O.S.No.755/79 to this defendant and to the other legal heirs of her

great grand father Appalaswamy but in the mean time Mr.Tynala

Vijayakumar and his parents, being supported by the present plaintiff wanted to complicate the matter and suffocate this defendant and suffocate the preliminary decree and the final decree proceedings in

O.S.No.755/79. It is submitted that in view of the prevailing situation

this defendant was constrained to file a suit in O.S.No.2988/2006 on

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- 45 - the file of Honourable Court of I Addl.Junior Civil Judge,

Visakhapatnam for a permanent injunction restraining Tynala

Musalayya, Tynala Dalamma, Tynala Vijaya Kumar, this plaintiff from making further constructions in the schedule property of the suit.

Which is the schedule property in O.S.No.755/79 and for a mandatory injunction against the 5th defendant in the said suit directing demolition of unauthorized constructions and for a permanent injunction restraining the 5th defendant granting any permission for construction of building in any portion of the schedule property. It is submitted that after filing of the suit this defendant received summons in this suit filed by the plaintiff and it is only after reading the pliant this defendant came to know that Municipal Corporation had already given permission for construction of a building. It is submitted that this plaintiff and Tynala Vijaya Kumar and his parents combinedly with a common intention are continuously frustrating the delivery proceedings in E.P.1336/2002 and their sole aim is to complicate the things and make the delivery proceedings incapable of being taken up, creating 3rd party rights. It is submitted that the plaintiff in the suit knowing fully well about the litigation, joining hands with Thynala Vijay

Kumar and his family, is pretending to be unaware of the litigation and pretending to be a bonafide purchaser. This defendant strongly suspects that the present plaintiff is a henchmen of Thynala Vijaya

Kumar and his family and the documents under which the plaintiff claims to have purchased the property, are nominal and sham. It is submitted that Thynala Vijaya Kumar and his family members unable to scuttle the delivery proceedings inventing this devious method of

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 46 - introducing a third person, are still trying to frustrate the proceedings.

It is submitted that at the instance of this defendant, who is the plaintiff in O.S.No.2988/2006, the Honourable Court of I Addl. Junior

Civil Judge, Visakhapatnam was also pleased to grant ad-interim

injunction restraining this plaintiff and the family members of Tynala

Vijaya Kumar from creating any third party interest in the schedule property of O.S.2988/2006 and from making any type of construction, vide orders in I.A.2116/2006 in O.S.No.2988/2006 and the said order was in forceIt is submitted that suppressing all these facts the plaintiff filed the present suit and therefore, the plaintiff cannot be given with the equitable relief prayed for, as he came to the court with unclean hands. It is submitted that the allegation that Smt.Lalam

Garikamma and Sri.Tynala Vijaya Kumar, son of T.Musalayya, were the absolute owners of the property of an extent of 432.32 Sq.yards together with a house bearing D.No.29-9-3, Assessment No.24175, situated at Lalitha Colony, Dabagardens, Visakhapatnam, having purchased the same under separate Sale deeds Dt.8-8-1996, 10-5-99 and 11-5-99 registered as document No.2577/1996, 1802/1999 and 1834/99 from a common vendor Sri.J.Mohan Roy and were in possession and enjoyment of the same as absolute owners etc., are all false and the plaintiff is put to strict proof of the same. Even otherwise, the sale of 125 Sq.yards by J.Mohan Roy in favour of Lalam

Garikamma, under Sale deeds Dt.8-8-1996 bearing document

No.2577/96 and sale of an extent of 140 Sq.yards and 166.32

Sq.yards under sale deeds bearing Nos., 1802/99 and 1834/99 by

J.Mohan Roy, in favour of Tynala Vijaya Kumar, were to be true, such

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 47 - sales cannot effect the rights of this defendant and the other legal heirs of this defendants great grand father Appalaswamy, confirmed in

O.S.No.755/1979. It is submitted that such sales are hit by doctrine

of is pendence and they are all subject to litigation. It is submitted as could be seen from the dates of sale, all of them were made subsequent to passing of preliminary Decree in O.S.No.755/1979 and when Final Decree proceedings were pending. Further, Mr.Tynala

Vijaya Kumar and Lalam Garikamma, were sure to have express knowledge about the litigation in view of the fact Tynala Vijaya Kumar is the son of D2 and D4 in O.S.755/79 and one Garikamma is no other than the mother in law of the said Vijaya kumar. It is therefore clear that J.Mohan Roy, who is the 5th defendant in O.S.No.755/1979 and the family members of Tynala Vijaya Kumar, have scant respect for legal system”. Finally he prays to dismiss the suit without costs.

18. Basing on the pleadings of both the parties, the following issues framed by the court for trial in O.S.1935/2006 :

1. Whether plaintiff is entitled for a decree of permanent

injunction restraining the defendant, his men, etc not to

interfere with the peaceful possession and enjoyment of suit

schedule property.

2. To what relief?

19. Heard both sides, Perused the material on record.

O.S.No. 2988/2006 filed by the plaintiff for permanent injunction

for entire extent of 2421 but the plaintiff in.O.S.1935/2006 filed the suit for permanent for an extent of 252.78 square yards which is part of suit schedule in O.S.No.2988/2006. Plaintiff in O.S.1935/2006 as well as the defendant in O.S.No.2988/2006 are one of the defendants

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- 48 - i.e., defendant No.4 in O.S.No.2988/2006. The facts pleaded and deposed by the parties in these two suits are one and the same. So that this court inclined to dispose of these two suits with a common

judgements.

20.To substantiate the case of plaintiff in O.S.No.1935/2006, who is 4th defendant is O.S.2988/2006 examined as P.W.1 and he filed the examination in chief in O.S.No.1935/2006 by reiterating the contents of his plaint. Through this witness Ex.A1 to Ex.A9 marked in

O.S.No.1935/2006. In his cross-examination, he deposed that he

filed the suit against the Mary Sarojini for relief not to obstruct his construction process, but did not remember when defendant caused obstruction for his construction process either date, or month or year.

He further deposed that he could not say how many days the defendant caused obstruction for his construction work, but the same taken number of times. He further deposed that the age of the defendant i.e., Mary Sorojini and her husband are nearly 60 and 70 years respectively. He further deposed that at the time of obstruction caused by the defendant the persons who residing at Dalam R.K.

Apartments approached him and informed the name and residence of defendant. He further deposed that he could not say the names of persons who informed about the defendant. He further deposed that he was informed by the residents of Dalam R.K. Apartment, all the particulars of defendants as shown long cause title. He admitted that he was not asked them how they know all these particulars about the defendant. He further deposed that Dalam R.K. Apartment site belongs to Thinala Vijaya Kumar, and his family member and said

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- 49 -

Thynala Vijaya Kumar acted as M.L.A for the last Assembly in favour of

Congress Party. He further deposed that he has acquaintance with

Thynala Vijaya Kumar from 1996 and Thinala Vijay Kumar had knowledge about the suit in O.S.No.1935/2006. He further deposed that he informed to Vijay Kumar when defendant obstructed his work at that time Vijay Kumar residing at Dalam Apartment, at the time

Vijaya Kumar informed to him as he knew the defendant and her husband. He further deposed that Vijay Kumar knew the defendant as they each other had suits about lower floor of his property. He further deposed that as per his knowledge Vijaya Kumar is a fair man.

He admitted that at the time of obstruction of his work by defendant parents of the Vijay Kumar residing that lower floor of his property. He further deposed that Vijaya kumar informed to him as no cases pending about Dalam R.K. Apartment and site purchased by him. He further deposed that he not verified whether his site is included in suit between defendant and Vijaya Kumar and his family members. He admitted that one Garikamma is mother in law of Vijaya Kumar. He further admits that defendant herein i.e., Mary Sorojini filed

O.S.No.2988/2006 on the file of this court ( I Addl. Junior Civil Judge's

Court, Visakhapatnam) in that suit he received summons. He further deposed that he did not know the contents of written statement in this suit as well as plaint in O.S.No.2988/2006. He further deposed that in the year 2003 Vijaya Kumar approached him and expressed as he has intention to sold his property to clear his debts, on that he expressed as he has intention to purchase the same. He further deposed that he paid the sale consideration under Ex.A5 by way of instalments and

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 50 - received endorsement from Vijay Kumar in a dairy whenever he paid the sale consideration. He further deposed that he did not know the financial status of Vijaya Kumar in the year 2004. He admitted that in the year 2004 Vijaya Kumar is a famous Congress Party leader in

Visakhapatam and Corporator for Visakhapatnam Municipal

Corporation. He denied that prior to Ex.A5 he has no document to show his right on suit schedule property. He further deposed that he applied for approval of building plan in the year 2003 at the time he had one registered development agreement. He denied that he was not pleaded about the development agreement in his plaint and not filed the document, as there is no such document. He denied that he is only actor in the hands of Vijaya Kumar and his family members as they are behind the suit. He deposed that he had not observed any link documents while taking Ex.A5 from Vijaya Kumar. He denied that he got Ex.A5 for sham and nominal to complicate the litigation between Vijaya Kumar and defendant i.e., Mary Sarojini. He admitted that defendant filed a petition to add who purchase flats from him and in that petition also filed a counter by him. He further deposed that he did not know whether Vijay Kumar filed any claim petition in execution petition. He denied that after assessed as Vijaya Kumar may defeat in claim petition, Vijaya Kumar instigated to file this suit.

He denied that at the time of Advocate Commissioner visited the suit schedule property only completed 50% of construction. He voluntarily adds that work completed up to 70% at the time of Advocate

Commissioner visited the suit schedule property. He admitted that he completed the construction work after the visit of Advocate

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- 51 -

Commissioner. He further deposed that he did not know whether court passed any interim injunction in O.S.No.2988/2006 by directing not to make further construction. He further deposed that he did not remember whether any prohibitory order passed by the court served on him or not. He denied that he aware that the suit schedule property is part of subject matter in S.A.No.897/2009 on the file of

Honourable High Court filed by parents of Vijaya Kumar. He admitted

that Vijaya Kumar and his parents as no disputes between them. He denied that he, Vijaya Kumar and family members of Vijaya Kumar not having any respect on court orders. He denied that he suppressed material facts in his plaint. He denied that even his plan approved in the year 2003 and waited up to 2006 as suit is pending. At this stage he adds that he waited up to 2006 as he has no money to clear the sale consideration to Vijay Kumar. He denied that they obtained approved plan without having title because of Vijaya Kumar is a corporator.

21.This Pendyala Rama Rao also examined as D.W.2 in

O.S.2988/206 and he filed his examination in chief as affidavit by

reiterating his statement filed in O.S.2988/2006 as a 4th defendant.

Through this witness in O.S.2988/2006 marked the Ex.B1 to Ex.B5. In his cross examination, he admitted that he given instructions to prepare the examination in chief on the date of his examination i.e., 4-3-2015. He deposed that he stated to his counsel to prepare his examination in chief as “after he filed O.S.No.1935/2006, plaintiff herein filed this suit to escape from the orders passed in interlocutory application number 574/2006/”. He further deposed that he did not

I AJCJ/VSP

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- 52 - know when the above said interim orders served on plaintiff herein.

He further deposed that he did not know originally the plaint in

O.S.No.2988/2006 had presented before the court. He admitted that

after service of summons in this suit, he was not made any efforts to know when the interim injunction orders in O.S.No.1935/2006 served on plaintiff herein with regard to whether she filed the suit after receipt or prior to receipt summons or not. He admitted that he has no basis to state plaintiff herein filed this suit to escape from the interim injunction orders in O.S.No.1935//2006. He denied by the date of issuance of approved plan i.e., Ex.B3, he is not the owner of the schedule property. He further deposed that he has sale deed in his favour by the date of issuance of approved plan ie., Ex.B3. He further deposed that he was not filed the registered sale deed stands on his favour by the date of Ex.B3. He denied that he has no sale deed in his favour for the schedule property by the date of Ex.B3, at this stage witness again says that instead of sale deed he has registered agreement in his favour. He admitted that he was not mentioned in his pleadings about the registered document of sale as well as same is also not mentioned in Ex.B1 ie., copy of agreement of sale cum General Power of Attorney. He denied that by the date of issuance of approved plan ie., Ex.B5 Tynala Vijaya Kumar (D.W.1 in

O.S.No.2988/2006) is a corporator for the ward where the suit

schedule property is situated. He denied that by the date of issuance of Ex.B3 he has no right, title on that property but on the influence of

Thynala Vijaya Kumar (D.W.1 in O.S.No.2988/2006) as a Corporator as well as he is benami/shadow/stooge of Vijaya Kumar got the Ex.B3.

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- 53 -

He denied that for the frustrate of legal battle of the plaintiff herein (O.S.No.2088/2006) they got the Ex.B3 and started the construction.

He further deposed the Thynala Vijaya Kumar (D.W.1 in

O.S.No.2988/2006) not informed about the dispute between Thynala

Vijaya Kumar and plaintiff herein by the date of Ex.B1 and Ex.B3. He further deposed that as per his knowledge and experience with D.W.1,

Thynala Vijaya Kumar i.e., (D.W.1 in O.S.No.2988/2006) is layer. He further deposed that he was started construction in suit schedule property in O.S.No.1935/2006 about 2 or 3 months prior to its presentation before the court. He further deposed that he stopped the construction work for a period due to financial problem, financial problem, ill health of him and because of plaintiff made a dispute with stop the work for the period of one month, but he is not in position to state the period of stopped the construction categorically. He denied that he never stopped the construction process still it was continue from the beginning. He deposed that Advocate Commissioner by name Johanvee visited the suit schedule property in the presence of his counsel, advocate for 3rd defendant and plaintiff, surveyor and also presence of parties. He admitted that Advocate Commissioner visited the suit schedule property at that time, his construction process is in progress, she prepared rough sketch and obtained signatures of above said persons on it. He further deposed that he did not know whether plaintiff obtained the interim injunction to the stop the construction work in the suit schedule property i.e., O.S.No.2988/2006. He further deposed that he did not know whether plaintiff herein filed a petition by alleging as he violated the interim injunction orders. He further

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OS.2988/2006 & O.S.1935/2006

- 54 - deposed that he did not know the contents of examination in chief as well as cross examination of Mary Sorojini, who examined as P.W.1 in

O.S.No.2988/2006 and his counsel also not informed about the

contents. He admitted that after receipt of notice and summons in this suit ie., O.S.No.2988/2006 only sold the flats in his construction. He admitted that the persons who purchased from occupied their respective flats. He denied that though Municipal authorities knew the dispute with regard to the title they approved the plan on the influence of Thynala Vijay Kumar i.e., D.W.1 in O.S.No.2988/2006. He denied that he is not bonafide purchaser. He denied that they falsely filed report before police to use as it instrument for the dispute.

22.Plaintiff in O.S.No.1935/2006 examined one 3rd party by name Bylapudu Appalanaidu as P.W.2, one Kalla Satyanarayana as

P.W.3, one Jami Suresh Kumar as P.W.4. These 3rd party witness filed their examination in chief as affidavits by corroborating with the facts and version of O.S.No.1935/2006. Briefly the contents of P.W.2 to 4 examination in chief is as follows: “I submit that the plaint after obtaining approval from Municipal Corporation, started construction of group housing in the suit property. While the construction activity was in progress, on 22-8-2006, the defendant came near the suit schedule property along with her husband and some unknown group of people and demanded the supervisor of the plaintiff to stop the construction and vacate the same. On information, the plaintiff also came there. The defendant then abused the men of the plaintiff in a foul language and threatened to implicate the plaintiff and his men in a criminal case, if they do not vacate the suit property and deliver them

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 55 - the vacant possession of the same. Though the plaintiff pleaded that he has an approved plan and title for the suit property and the defendant cannot high-handedly and illegally stop the construction and the defendant once again threatened the plaintiff and his men with dire consequences if they proceed with further construction. Upon that the plaintiff lodged a complaint on the same day before the police and police asked the defendant not to interfere with the suit schedule property of the plaintiff. However, the defendant along with her men once again came to the suit property on 23-8-2006, and threatened the plaintiff with serious consequences if the construction is not stopped immediately and possession of the same is delivered to her”.

23.In cross examination of P.W.2, he deposed that since 2007, he is residing at address showed in his examination in chief prior to that he resided at Dalam Apartments, Dabagardens for rent. He further deposed that he knew one Suresh but he do not know whether

Suresh and Jami Suresh are one and the same or not. He further deposed that he did not know whether that suresh is owner of flat or tenant at Dalam Apartment, but he reside opposite flat. He further deposed that he do not remember whether Suresh present at the time of galata at suit schedule property or not. He admitted that according to him, he observe the galata from his window and out of curiosity he went to suit schedule property. He further deposed that he resided the flat owned by Thinala Vijayakumar and admitted he and Vijaya Kumar belongs to same caste. He further deposed that he was not purchased any flat from plaintiff at suit schedule property and he had acquaintance with plaintiff from last 15 years. He further deposed that

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OS.2988/2006 & O.S.1935/2006

- 56 - he did not know the acquaintance between plaintiff and Thinala

Vijayakumar.

24.P.W.3 in his cross examination, deposed that when he was inducted as a watchman the same is vacant site at Dabagarden, thereafter constructed Apartment and now he is working as watchman in that Apartment. He further deposed that where he is working as guard at Dabagarden that Apartment belongs to plaintiff herein. He further deposed that he affixed thumb impression on examination in chief at their apartment as plaintiff herein brought the same. He further deposed that at about 8.00 a.m on the date of his examination i.e., 9-6-2014 went to house of Advocate to consult with him and plaintiff accompanied him. He further deposed that he did not remember what happened on 22-8-2006. He further deposed that even he received the salary as a guard but no document is available.

He further deposed that he did not know the defendant name and suit filed by plaintiff herein. He further deposed that when a woman came to the suit schedule at the time plaintiff not at suit schedule property and at the time he, Pydayya and Appala Naidu are present. He further deposed that he went to plaintiff’s house at Maharanipeta near

Simhadri Hospital and called him to suit schedule property. He further deposed that he returned with plaintiff to the suit schedule property till then that female person and remaining were present at suit schedule property. He admitted that the distance between Dabagardens to

Maharanipeta is about 4 or 5 kilo meters. He further deposed that at the time of galata plaintiff also not approached to the Thynala Vijay

Kumar and family members. He further deposed that both parties

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OS.2988/2006 & O.S.1935/2006

- 57 - not approached the police on the date of galata or next day.

25.In cross examination of P.W.4, he deposed that when he came out from his residence for cigarette, he was observed galata, so that he was proceeded to there. He further deposed that when he went to the suit schedule property plaintiff not present there and the said incident taken between 10.00 A.M. To 11.00 A.M. He further deposed that since last 8 years he residing at Dalam Archade

Apartments still residing there only. He further deposed that at para 2 of his examination in chief is true and correct as previously he used to reside at Dalam Apartment but not at present. He admitted that he purchased the flat at Dalam Archade from Thinala Musalayya and family members. He further deposed that as per his knowledge is concerned Thinala Musalayya and plaintiff are not relatives. Plaintiff purchased the suit schedule property from mother in law of Vijaya

Kumar. He admitted that at the time of Galata Thinala Vijaya Kumar and his family members not approached the plaintiff, vice versa. He further deposed that he observed the defendant herein on the date of

Galata at first time. He admitted that P.W.2 not possessed any property at Dalam Archade. He voluntarily adds that P.W.2 purchased flat at suit schedule property. He further deposed that while P.W.2 passing on the way and observe the galata and reached there. He further deposed that on the date of galata P.W.2 not purchased any flat at suit schedule property. He further deposed that P.W.3 worked as watchman at suit schedule property at the time of Galata but not at present as he worked from 2004 to 2011. He further deposed that he and plaintiff approached II Town Police station on the date of incident

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OS.2988/2006 & O.S.1935/2006

- 58 - but the same is may not with in the knowledge of P.W.3.

26.Defendant in O.S.No.1935/2006 examined as D.W.1 and filed her examination in chief as affidavit, which is nothing but a copy of her written statement. Through this witness Ex.B1 to B4 marked.

In her cross examination, she deposed that she did not remember whether Exs.A1 to A5 which marked in ( O.S.1935/2006) contained any recital about the pendency of dispute relating to the suit schedule property in any courts. She admitted that as per the judgement in

O.S.No.755/1979 property partitioned as two equal shares comprising

an extent of 1210.50 sq.yards to each. She admitted that southern side half share allotted to her and northern half share allotted to D1 to

D5 therein. She admitted that present suit schedule property is on northern side of property covered in schedule of O.S.No.755/1979.

She admitted that as per Ex.B1, 5th defendant got property on northern side of schedule property of O.S.No.755/1979. She admitted that as per the documents filed by the P.Rama Rao i.e., D5 herein in

O.S.No.755/1979 sold the property infavour of Garikamma and

Thinala Vijaya Kumar. She admitted that Thinala Vijaya Kumar and his family resided after erected thatched shed abutting to tiled house which is a property under agreement for sale cum General Power of

Attorney i.e., Ex.B1 erected the thatched shed with a door No.29-9- 3/1 and also has electrical service connection on the name of Thinala

Vijaya Kumar. She admitted that Municipal Corporation accorded a permission to construct G + II Construction by removing existing structure i.e., D.No.29-9-3. She admitted that after getting permission removed the tiled house and thatched house by started a

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 59 - construction as per approved plan by plaintiff. i.e., Pendyala Rama

Rao. She further deposed that she did not remember whether they filed any document as they raised objection before Municipal

Corporation is sanction approved plan on the application of plaintiff.

She admitted that final decree petition in O.S.No.755/1979 court ordered to take possession of respective allotted shares but he was not taken possession of southern side share through court. At this stage she voluntarily deposed that she was prevented to take the possession. She admitted that she have no right on northern side share as per judgement in O.S.No.755/1979. She admitted that after commence the construction by plaintiff she and her husband approached to the construction place on 22-8-2006 but not threatened the plaintiff to stop the construction work of plaintiff. She admitted that presently O.S.No.755/1979 pending on the file of Honourable

High Court. She denied that they incorporated the para graph 3 to 10 in her examination in chief to their favour without reveal the real facts taken in that suit schedule property and the same is false. She admitted that they obtained the orders from Honourable High Court by restrained the Vijaya Kumar to registered any documents with regard to the southern side share as per Ex.B1. She admitted that she filed as O.S.No.2988/2006 on the file this court (I Addl. Junior Civil

Judge's Court) Thinala Musalayya and others in respect of Northern

side share as per Ex.B1. She admitted that she was not got any right on suit schedule property by the order of any court. She denied that she has habit to prolong the proceedings from 1979 without ascertain the right on property. She denied that plaintiff herein i.e., P.Rama Rao

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 60 - is a bonafide purchaser and he purchase without knowledge of any prior dispute on suit schedule property. She admitted that the suit schedule property is in possession and enjoyment of plaintiff.

27.This witness i.e., Mary Sorojini in O.S.No.2988/2006 is one of the plaintiff as such she examined as P.W.1 in O.S.No.2988/2006 and she filed her examination in chief and also a copy of her pliant in

O.S.No.2988/2006 through this witness Ex.A1 to Ex.A4 marked. In

cross examination by 3rd defendant, she deposed that she did not remember exact extent of suit schedule property but court allotted an extent of 1210 sq.yards to them. She further deposed that thereafter these defendants constructed structure about 300 sq.yards situated towards north west corner of the entire property. She admitted that as per Ex.A1 they got an extent of 1210.5 sq.yards towards southern side of the entire property of northern. She admitted that as per

Ex.A1 they got an extent of 1210 sq.yards granted to defendants therein. She further deposed that even she filed execution petition for delivery of property but she was not got the delivery from the court.

She admitted that defendants in O.S.No.755/79 went to appeal on the

judgement of lower court and the same was dismissed by first

Appellate Court, then defendants went to 2nd appeal to Honourable

High Court. She denied that they have no right on northern side 1210 sq.yards of site. She further deposed that the defendant constructed apartments on southern side 1210 square yards. She denied that court delivered an extent of 1210 sq. yards on southern side, she may get the same from northern side site. She admitted that after consider the constructions of defendants in O.S.No.755/79 allotted the

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 61 - southern side to her and northern side to defendant in that suit. She denied that D3 and D4 purchased site from right full owner and constructed a house. She further deposed that as per court order to meet the 1210 square yards they have also right on northern side but defendants making constructions on northern side so that filed this suit. She denied that she filed the suit for injunction an extent of 2421 sq. yards. She further deposed that as 4th defendant making constructions in 400 sq. yards. She denied that D3 not made any construction towards 1210 sq.yards on southern part. She further deposed that Dalam apartments constructed by encroaching into 1210 sq.yards of southern side site. She admitted that they have no right on northern side except the southern side 1210 sq.yards. She denied that this suit is not maintainable as she showed the schedule for an extent of 2421 sq. yards. She denied that suit is not maintainable against D3 as he only construction of northern side which allotted to him.

28.In cross examination of D4, she admitted that she got an extent of 1210.5 square yards as per orders in Ex.A1. She admitted that she has no right on remaining land except 1210 square yards, which allotted to her. She admitted that she not taken possession of any extent. She admitted that towards northern side of 1210 square yards belongs to Thinala Dalamma, T.Musalayya and their son Vijaya

Kumar. She further deposed that in the year 2003 she came to know that 4h defendant has development agreement coupled with possession with T.Musalayya and family. She admitted that D4 constructed apartment in the land which taken from Thinala family.

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- 62 -

She admitted that D4 obtained approve plan from Greater

Visakhapatnam Municipal Corporation authorities to construct apartments. She further deposed that even she knew apartments’ plots are in occupation but she did not know who are in occupation.

She further deposed that she did not know whether she showed in this suit as a parties, who are in occupation of apartments. She admitted that she was not filed postal receipt by showing as she send the Ex.A4 to 5th defendant as well as acknowledgement from 5th defendant. She further deposed that the schedule showed for an extent of 2421 sq.yards may be wrongly noted by typographic mistake and northern boundary showed wrongly. She further deposed that she filed the suit against 4th defendant to restrain his construction because on southern side there is no 1210 sq.yards so that they allotted remaining land on northern side. She further deposed that she did not remember when she got the injunction orders and the same is in force or not. She denied that she got exparte injunction order by misleading the court.

29.In O.S.No.2988/2006 3rd defendant examined in suit as

D.W.1 and he filed his examination in chief as affidavit which is copy of his written statement. In cross examination of D4, he admitted that he sold an extent of 258.78 sq.yards to D4 to the north west corner of their share and it mistakenly mentioned in the examination in chief as south west corner.

30. In cross-examination of plaintiff i.e., Mary Sarojini, he admitted that he was enrolled as an Advocate on the roles of

Visakhapatnam Bar Association, but he has no active practice. He admitted that he acted as corporator, where the suit schedule property

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 63 - is situated from 2000 to 2005 and 2007 to 2009. He admitted that he was a member of Legislative Assembly from 2009 to 2014. He denied that they migrated to Visakhapatnam about 30 years back from

Appikonda Village. He admitted that his parents are illiterate as well as mark (thumb impression) persons. He further deposed that his parents blessed with five children, who are alive at present. He further deposed that his parents purchased part of site in the suit schedule property in between 1970 to 1973. He further deposed that he did not remember how much extent purchased by his parents together or individual out of 2,421 sq.yards. He further deposed that he did not remember under how many documents his parents purchased the site out of 2,421 sq.yards. He admitted that Lalam

Garikamma is his mother in law and she is an illiterate and mark person. He further deposed that he, his parents’, and his mother in law are all together claiming ownership on entire 2,421 sq.yards. He further deposed that they are claiming 2421 square yards by way of title deeds for some extent remaining claiming basing on the judgment delivered by the court. He further deposed the claiming the some extent basing on the judgment in O.S.No.407/1975 on the file of

District Munsif's Court, Visakhapatnam. He further deposed that his parents were parties in O.S.No.407/1975 as well as plaintiff herein also. He further deposed that one Thamas David filed

O.S.No.407/1975 for partition and it was decreed by trial court,

thereon his parents preferred an Appeal and it was allowed by set aside the trial court judgement. He admitted that above referred

Thama David is none other than father of plaintiffs No.6 to 8 in this

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OS.2988/2006 & O.S.1935/2006

- 64 - suit. He admitted that first plaintiff herein filed O.S.No.755/1979 on the file of I Addl. Junior Civil Judge's Court, Visakhapatnam, against his parents’ and his parents’ vendors’ by claiming partition. He further deposed that recently he gone through the judgement in

O.S.No.755/1979. He admitted that his parents’ and Mohan Rao are

main contestants and taken a plea that plaintiffs’ in O.S.No.755/1979 has no right on suit schedule property. He denied that they intentionally not filed decreed and judgement in O.S.No.407/1975 and

O.S.No.755/1979 as they are against evidence given by him. He

admitted that he has no dispute with his parents with regard to any respect. He admitted that whenever his suggestions and assistance required to his parents extended the same. He further deposed that an extent of 2,130 sq yards approximately available on ground but did not know about remaining 291 sq.yards. She further deposed that he never measure the schedule property and came to knew through

Advocate Commissioner's report that 2,130 sq.yards is available on ground. He admitted that he has an Advocate Commissioner’s report, who appointed in Final Decree partition filed by 1st plaintiff herein in

O.S.No.755/1979. He further deposed that he did not know whether

defendants in O.S.No.755/1979 taken a plea that schedule property is only available for an extent of 2,130 sq.yards or not. He admitted that

O.S.No.755/1979 taken between two branches ie., Appala Swamy

branch and Guruvulu branch. He admitted that plaintiffs herein are representatives of Appala Swamy branch and they are claiming right through the branch of Guruvulu. He admitted that Guruvulu branch also got an extent of 1210.5 sq.yards as per final decree order. He

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OS.2988/2006 & O.S.1935/2006

- 65 - further deposed that after consider the Advocate Commissioner's report court passed the final decree. He denied that an extent of 2421 sq.yards available on ground so that only court passed final decree for that extent. He admitted that his parents preferred an appeal on preliminary decree passed in O.S.No.755/1979 and first appeal also dismissed and at present 2nd appeal i.e., S.A.No.897/2001 is pending and on the file of Honourable High Court. He admitted that preliminary decree in O.S.No.755/1979 passed in the year 1995. He admitted that after passed the final decree his parents started a construction of Dalam Apartment as given for development. He denied that he and his parents as no respect on court orders. He further deposed that he did not know whether Honourable High Court not granted any stay in petition filed by his parents for more than 633 square yards, where Dalam Apartments construction is situated.

Witness admitted that documents shown to him as he purchased the site and his mother in law purchased site from one J.Mohan Rao under 3 documents which are marked as Ex.A5 to A7. Witness admitted that document shown to him is development agreement executed by witness and his mother in law in favour of 4th defendant herein which marked as Ex.A8. He further deposed that he did not remember whether he executed any document in favour of 4th defendant prior to

Ex.A8. He denied that 4th defendant acting as be-nami to him. He further deposed that suit schedule property is not their ancestral property. He further deposed that he cannot say how his father is owner on part of suit schedule property ie., owner for some extent.

He further deposed that he has three sale deeds on his name out of

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OS.2988/2006 & O.S.1935/2006

- 66 - 2,421 sq.yards but he cannot say the extent exactly with stands on his name. He further deposed that an extent covered under three sale deeds may be 588 sq.yards as suggested by plaintiff's counsel and his mother in law has an extent of 125 sq. yards approximately. He admitted that coupled the extent stands on his name, mother's name and his mother in laws name may approximately 1348 sq.yards and out of that 282 fallen on southern side and remaining land is in northern side. He further deposed that he showed in Ex.A8 on southern side as passage measuring 9 feet X 67-11 feet and the same is included in an extent of 1348 sq.yards. He further deposed that the said passage is in existence, when Advocate Commissioner visited the suit schedule property. He further deposed that the passage, which referred supra, is also included in an extent of 2,130 sq.yards, which he deposed earlier stated as ground reality. He further deposed that he given for development of site to 4th defendant by excluding of his 282 sq.yards situated on southern side. He further deposed that he sold away to 4th defendant except 282 sq.yards, he has no other lands at suit schedule property on his name. He admitted that on southern side of suit schedule property there is a drain, which is one of the largest drain in Visakhapatnam. He admitted that northern side half is more comfortable than southern side of suit schedule property. He admitted that prior to Ex.A8 there is no document to show the ownership rights on part of present suit schedule property infavour of 4th defendant, in the year 2003 to approval the plan submitted by the 4th defendant . He admitted that he and 4th defendant violated the orders of injunction issued by the court. He further deposed he

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OS.2988/2006 & O.S.1935/2006

- 67 - informed about the pendency of litigation from 1979 and 4th defendant observed the final decree order. He further deposed that he knew that 4th defendant filed O.S.No.1935/2006 on the file of this court. He further deposed that he knew that his mother and father filed

S.A.No.97/2001 on the file Honourable High Court. He admitted that he filed the C.M.S.A.No.65/2007 against the orders in C.M.A.38/2004.

He denied that they did not adhere the spirit of the above said stay orders by dealing with the suit schedule property by denying the enjoyment of plaintiff herein. He admitted that he was not obtained any permission from Honourable High Court to made construction or alienation of suit schedule property but he did not know his parents.

He further deposed that he did not know whether Honourable District

Court Observed while disposing C.M.A.NO.38/2004 as he and parents colluded to filed this petition. He further deposed that as per his contention and opinion plaintiff herein has no right even on extent of 1040 sq.yards located on southern side of suit schedule property.

31.ISSUE NO.1 in O.S.No.2988/ 2006 :-

It is an admitted fact by the D.W.1 (tynala Vijaya Kumar) that plaintiffs’ are representatives of Applaswamy i.e., one of branch in partition suit for the suit schedule property i.e., an extent of 2421 square yards. D.W.1 further admitted that they are claiming right over the suit schedule property through the branch of Guruvulu as they purchased site from them. It is an admitted fact by D.W.1 that the O.S.No.755/79 decreed by granting 1/24th share in-favour of

Mary Sarojini. Thereafter in final decree petition other share holder who representing the branch of Appalaswamy filed a petitions and also

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OS.2988/2006 & O.S.1935/2006

- 68 - given a power of Attorney in favour of Marry Sarojini as their share ie., ½ share out of 2421 square yards shall allot at one place. On consider the same the Honourable Court granted all shares to

Applaswamy branch on southern side of Guruvulu branch. It is an admitted fact by the D.W.1 that his parents filed S.A.No.897/2001 which is pending on the file of Honourable High Court. Therefore, these facts clearly established that plaintiffs representing the

Applaswamy branch as such they have right on suit schedule property.

32. ISSUE NO.2:- in O.S.2988/2006:

ISSUE NO.1 of 1935/2006:-

The plaintiffs in O.S.No.2988/2006 seeking permanent injunction restraining the D1 to D4 and D6 to D11 to act on suit schedule property. On the other, hand the plaintiff in O.S.No.1935/2006 seeking permanent injunction against the Marry Sarojini for an extent of 258.78 square yards. The learned counsel for plaintiff in

O.S.1935/2006 and D1 in O.S. 2988/06 argued that Marry Sarojini and

others filed O.S.2988/2006 by seeking the permanent injunction for entire 2421 square yards and the same is not maintainable as she was allotted only 1210.05 square yards as per the decree in O.S.755/1979.

He further argued that the plaintiff in O.S.1935/2006 ie., Pendyala

Rama Rao is a bona-fide purchaser from the rightful owners. When the matter is pending before the Honourable High Court as a 2nd appeal it shows the litigation not attained the finality. As such, the rights of parties not settled, only the lower court allotted southern share i.e., an extent 1210.5 square yards of Appalaswamy branch and northern 1210 square yards allotted to Guruvulu branch. The D.W.1

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OS.2988/2006 & O.S.1935/2006

- 69 - clearly and categorically admitted that they are not the legal heirs of any branch. The D.W.1 ie., 3rd defendant version is that they purchased the property from one Mohan Roy, who is a representative of Guruvulu branch. The documents filed by the Marry Sarojini, which clearly shows that the parents of D.W.1 who are the parties in

O.S.No.755/97 only got the property after decided the rights of their

vendors. So without conformed the rights of vendors of the D1 to D3 they have no right on particular extent. Moreover D1 and D2 herein who are parents of D3 preferred an appeal as they aggrieved the

judgement and decree in O.S.755/79. So it clearly shows they are

not accepted the shares decided by the lower court. In such a situation defendants has no right to deal with either northern share or the southern share. The learned counsel for D4 in O.S.2988/2006 and plaintiff in O.S.1935/2006 clearly submitted before this court that when the litigation attain the finality the shares may altered by

Honourable appellate court. In such a situation how the defendants

dealt with the property by alienating and creating the interest to 3rd parties is not explained by the learned counsel for Pendyala Ramarao.

The observation of lower court as per Ex.A1 that after consider the constructions made by the D1 and D2 passed preliminary decree in

O.S.No.755/79 allotted the northern share to Guruvulu branch as it

consisted multistored building as per Advocate Commissioner report.

The learned counsel for plaintiff in O.S.2988/2006 and defendant in

O.S.1935/2006 argued that even Appalaswamy branch got the

southern side share even though its one of the side there is a Major drainage canal as such the northern share is prime locality, than

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OS.2988/2006 & O.S.1935/2006

- 70 - southern side share and the same was accepted by consider the multi storied building. Even though defendant preferred the appeal and without getting any finality creating the rights to 3rd parties with intended to prolong the litigation. In cross examination of

D.W.1(Tynala Vijaya Kumar) clearly and categorically stated the plaintiff in O.S.2988/2006 has no right on any part of 2421 square yards but he was not explained how they got entire property .

Moreover this D.W.1 is an Advocate and also acted as a Corporater and member of Legislative Assembly. Even though he was not explained how he has right on entire 2421 square yards. This statement of

D.W.1 shows that he has intention to get entire 2421 square yards into his clutches. In this context it pertinent to observe the observation made by Honourable District Court in Ex.A4 in O.S.No.2988/2006 that this D.W.1 and his parents colluded and filing petitions. In the present suit also D4 obtained the Municipal Corporation permission for construction of multi storied building without having any right on the date of Municipal authorities approved the plan. In this respect D5 filed his written statement by stating that even Marry Sarojini filed petition, she was not approached with documents but D5 not clarified on what basis they approved plan. Moreover D5 in his written statement clearly stated as per Town Surveyor record, this suit schedule property showing on the name of Appalasamy. So in such a situation how they approved plan infavor of Penyala Rama Rao not explained or not entered into witness box to depose the facts by according opportunity to other side to elicit the facts in cross examination. It is an admitted fact by D4 in O.S.No.2988/06 and

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OS.2988/2006 & O.S.1935/2006

- 71 - plaintiff in O.S.No.1935/2006 that he obtained agreement of sale cum

GPA which marked as Ex.A8 in O.S.2988/2006, which shows the same was taken on 6-4-2004. Ex.B5 is approved plan along with proceedings issued on 8-3-2003 either 3rd defendant or 4 defendant in

O.S.No.2988/2006 not filed any documents by showing on the date of

Ex.B3 Pendyala Rama Rao has right on property. Moreover the vendors of P.Rama Rao has no clear title because partition between plaintiff and Guruvulu branch not attained finality. So it clearly shows Ex.B3 issued by the 5th defendant in O.S.No.2988/2006 without verified the documents. Its gives a strength to the arguments of learned counsel for plaintiff in O.S.2988/2006 that Tinala Vijay Kumar i.e., D.W.1 in O.S.2988/2006 influenced the Municipal Authorities as a corporator. It is also admitted fact that P.Rama Rao i.e., plaintiff in

O.S.No.1935/2006 and 4th defendant in 2988/2006 constructed the

apartment and sold away in favour of third parties. So it clearly shows the defendants creating the interests infavour of 3rd parties without attaining finality for the partition suit on hand agitating and other hand creating third parties interest. So it certainly effect the rights of plaintiffs in O.S.No.2988/2006, as per Ex.A1 in

O.S.2988/2006 as consider the multi storied building on northern side

it was allotted to Guruvulu Branch. So by taking advantage of the same D.W.1 creating the documents and also 3rd parties interests because D.W.1 is having legal knowledge, he admitted that his parents and mother in laws are illiterate and also marks persons. It is also admitted fact by D.W.1 i.e., Tynala Vijay Kumar that he extend his suggestions and co-operation whenever it needed to his parents. So

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- 72 - that only this court came conclusion that Tynala Vijay Kumar acting adversely to the interest of plaintiffs. So on considering above facts and circumstances, this court feels that it is necessary to restrain the defendants to create any 3rd party interests as well as dealing with the suit schedule property i.e., entire extent of 2421 square yards because partition suit not attain the finality. Even Pendyala Rama Rao filed suit for permanent injunction, his right will be conformed only after attained finality to the partition suit. Moreover the documents ie., approved plan and his agreement sale cum General Power of Attorney is adverse to his version. So it shows he not approached the court with clean hands. Accordingly these issues answered.

33. ISSUE NO.3 and 4 of O.S.No.2988/2006:-

The plaintiff in O.S.2988/2006 seeking relief of mandatory injunction in respect of plaint schedule property and directed 4th defendant to demolish the construction made in plaint schedule property as it unauthorized construction. P.W.1 in O.S.No.2988/2006 clearly and categorically admitted that construction was completed and some persons occupied their respective plots. D.W.2 in O.S.2988/2006 clearly admitted that he completed construction and sold away the same. Therefore, it clearly shows that the construction was already completed. We already observed in supra that partition suit not attain finality so without attained finality, the rights of parties not conformed on the suit schedule property. The construction of property is not only property of individual and it is also wealth of nation, so that without conforming right of plaintiff on particular extent is not safe to pass mandatory injunction for demolished. However plaintiff in

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O.S.No.2988/2006 are at liberty to approach the proper forum for this

relief at appropriate stage. Accordingly this issue answered.

34. ISSUE NO.5 in O.S.2988/2006:-

The plaintiff seeking permanent injunction restraining the 5th defendant to grant permission or construction in suit schedule property? We already observed in supra that 5th defendant sanctioned the plan in-favour of the 4th defendant in O.S.No.2988/2006 without having any title on the date of approved plan as such it presume that

D3 ie., Tynala Vijay Kumar as a Corporater at the relevant time influenced the authorities to grant the approved plan. We are also observed supra that Tynala Vijay Kumar clearly and categorically stated that plaintiffs in O.S.No.2988/2006 has no right on any inch of land even though they are representing branch of Appalaswamy.

Moreover, we are also observed in supra that this Tynala Vijaya Kumar colluded with his parents and creating the documents and litigation.

Therefore, to protect the interest of Appalaswamy Branch to restraining the 5th defendant from sanctioned the approved plan to constructed anything at suit schedule property. Accordingly this issue answered.

35. ISSUE NO.6 in O.S.1935/ 2006:

In the result, suit is dismissed without costs.

36. Issue No. 2 in O.S.No. 2988/2006:

In the result, suit is partly decreed by restraining the defendants 1 to 4 and 6 to 12 their men, agents, successor, servants, kith and kin, from making any alienations or making any further

I AJCJ/VSP

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- 74 - constructions in suit schedule property till the attain finality of partition suit i.e., O.S.No.755/1979 as well as restraining the 5th defendant from granting any permission/sanction for construction of building in any portion of the suit schedule property in the name of any persons till the attain fainality of partition suit i.e., O.S.No.755/1979 and partly dismissed i.e., granting mandatory injunction for demolished of construction already made in suit schedule property. However plaintiff are at liberty to take appropriate steps for at property stage to meet their share in partition suit.

Dictated to the Personal Assistant transcribed by her, corrected

and pronounced by me in the open court on the 8th day of April, 2015.

I ADDL. JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE IN O.S.1935/2006

WITNESSES EXAMINED FOR

PLAINTIFFS: DEFENDANTS:

PW.1: Pendyala Rama Rao D.W.1: Mary Sarojini

P.W.2:Bylapudu Appalanaidu

P.W.3: Kulla Satyanarayana

P.W.4: Jami Suresh Kumar

DOCUMENTS MARKED FOR

PLAINTIFFS:

Ex.A1/8-8-1996 : Certified copy of the Registered sale deed executed in favour of Lalam Garikamma.

Ex.A2/10-5-1999: Certified copy of Registered sale deed executed in favour of Tynala Vijay Kumar

Ex.A3/11-5-99: Certified copy of the registered sale deed executed in favour of T.Vijay Kumar.

Ex.A4/6-4-2004: Original property tax pass book bearing No.81765 issued for the house bearing D.No.29-9-3, Lalitha

Colony, Dabagardens area, Visakhapatnam in favour of Thynala Vijay Kumar.

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Ex.A5/6-4-2004: Original registered agreement of sale cum general power of attorney executed in favour of P.Rama Rao.

Ex.A6/: Original Electricity bills along with e-seva for the service connection bearing D.No.1320 224606 located in housek bearing D.No.29-9-3/1 (4 electricity bills and 2 receipts)

Ex.A7/8-10-2003: Original approved building plan along with proceedings issued by the commissioner GVMC.

Ex.A8/22-8-2006: Office copy of the compliant given by P.W.1 to

Central compliant cell, O/o commissioner of Police,

Visakhapatnam.

Ex.A9/22-8-2006: Original receipt issued by the O/o commissioner of police, Visakhapatnam.

DOCUMENTS MARKED FOR

DEFENDANTS:

Ex.B1/8-8-1996 : the certified coy of decree in I.A.No.749/1996 in

O.S.No.755/1979 on the file of I Addl. Junior Civil Judge,

Visakhapatnam.

Ex.B2/: The certified copy of a common orders passed in

I.A.No.749/1996, I.A.NO.584/2001 and

I.A.No.585/2001 in O.S.No.755/1996 on the file of

I Addl. Junior Civil Judge's Court, Visakhapatnam.

Ex.B3/: The certified copy of decree in A.S.No.442/2004 on the file of Prl. Distrcit Judge's Court, Visakhapatnam.

Ex.B4/--: The certified copy of common judgement passed in

A.S.No.417, 418,419, 440, 441 and 442/2004 and

CMA.No.38/2004 on the file of principal District Judge,

Visakhapatnam.

A PPENDIX OF EVIDENCE IN O.S.2988/2006

WITNESSES EXAMINED FOR

PLAINTIFFS: DEFENDANTS:

PW.1: Doss Mary SarojiniD.W.1: Thynala Vijayakumar

D.W.2: Pendyala Rama Rao

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DOCUMENTS MARKED FOR

PLAINTIFFS:

Ex.A1/9-8-2002 : Certified copy of common order passed by the I

Addl. Junior Civil Judge's Court, Visakhapatnam in

I.A.No.749/1996, I.A.No.584/2001 and

I.A.585/2001 in O.S.No.755/1979

Ex.A2/29-6-2004: Certified copy of orders in E.A.No.1212/2003 in

E.P.No.1336/2003 in O.S.755/1979 passed by

I Addl. Junior civil Judge's court. Visakhapatnam.

Ex.A3/11-5-99: The certified copy of affidavit from petition and orders thereon in I.A.No.3374/2004 in CMA

No.38/2004 of Prl. District Judge, Visakhapatnam.

Ex.A4/18-9-2006: The office copy of legal notice.

DOCUMENTS MARKED FOR

DEFENDANTS:

Ex.B1/6-4-2004: The copy of agreement sale cum General Power of

Attorney,

Ex.B2/: The electricity bills 4 in number

Ex.B3/8-10-2003: The copy of approved plan along with proceeding

Ex.B4/--: the copy of complaint before the Commissioner of police.

Ex.B5/22-8-2006: The copy of acknowledgement of the receipt issued by police

Ist A.J.C.J. V.S.P

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Date of Presentation :24.8.2006 Date of filing :24.8.2006

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE::VISAKHAPATNAM

PRESENT: SRI.LAKSHMI NARAYANA.B

I ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

Monday, the 8th day of April, 2015.

O.S.No.1935/2006

Between:

Pendyala Rama Rao, S/o Late Narayya, Hindu, 49 years, landlord, residing at Door NO.15-12-22/9, Flat No.301, Suraj Apartment, Opp.Simhadri Hospital, Krishna Nagar, Visakhapatnam.

...Plaintiff

And:

Smt. Mary Sarojini, S/o Victoria Moses, Christian, aged 56 years, residing at D.No.34, Hall Road, Kilpank Gardens, Chennai, now present at Visakhapatnam.

...Defendant

Plaintiff filed this suit for granting permanent by restraining the defendants her men and agents and privates from ever interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and for costs of the suit.

The value of the suit, for the purpose of court fee and jurisdiction is Rs.15,000/- and court fee of Rs.1,086/- is paid under Article 1 Schedule 1 read with Sec.26(c) of A.P.C.F. and S.V.Act. (Challana No.69, dated 24-8-2006.

This suit is coming on 18.3.2015 for final hearing before me in the presence of Sri.M/s Badarinath & Madhan Mohan learned Advocate for plaintiff, and of Sri. V.V.Ravi Prasad learned Advocates for the defendants and having stood over for consideration to this day, this court doth order and :

D E C R E E

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

2.That there be no costs.

// plaint schedule is here to attached //

Given under my hand and the seal of the court, this the 8th day of April, 2015.

Ist ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

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MEMORANDUM OF COSTS

For Plaintiff: For Defendants:

Costs memo not filed. Stamp on vakalath: 2-00 Stamp on plaint : 1,086-00 Stamp on process : 100-00 Advocate fee : 1,250-00 Jr.Advocate fee : 400-00 Type charges : 100-00 ----------- Costs Certified : 2,938-00 -----------

Ist AJCJ / VSP

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- 79 -

Date of Presentation :15.12.2006 Date of filing :21.12.2006

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE::VISAKHAPATNAM

PRESENT: SRI.LAKSHMI NARAYANA.B

I ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

Wednesday, the 8th day of April, 2015.

O.S.No.2988/2006

Between:

1. Smt. D.Mary Sarojini, W/o M.D. Doss (D/o late Victoria Moses), Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K Nagar, Chennai 600 078.

2.Sri.V.M.Kripa Rao, S/o late Victoria Moses, Indian Christian, aged 75 years, resident of Sirpur Kagaz Nagar, A.P., represented by his Agent and POA holder Smt. D.Mary Sajojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K.Nagar, Chennai 600 078.

3.Smt.K.Vijaya Kumari, W/o K.Vijayakumar and D/o late Jaya Rao, Indian Christian, aged 40 years, resident of Jagannathapuram, Korukonda Veedhi, Kakinada, A.P., represented by her Agent and POA holder Smt.D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sectorm 36th Street, KK Nagar, Chennai 600 078.

4.V.Raju, S/o late Victoria Moses, Indian Christian, aged about 66 years, resident of Rajahmundry, A.P., represented by his Agent and POA holder Smt.D.Mary Sarojini, W/o M.D. Doss, Indian Christian, aged 64 years, residing at Plot Not.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

5.Smt.V.Sampoornamma, W/o late Mohan Rao and d/o late Victoria Moses, Indian Christian, aged 73 years, resident of Turangi, Kakinada, A.P., represented by her Agent and POA holder Smt D.Mary Sorojini, W/o M.D. Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K.Nagar, Chennai 600 078.

6.Sri.R.T.Appa Rao David, S/o late R.T.David, Indian Christian, aged 56 years, resident of Plot No.96, V Cross Road, NKV Nagar, Chennai, represented by his Agent and POA holder Smt.D.Mary Sarojini, S/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot NO.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

7.R.T.David Madhava Rao, S/o late R.T.David, Indian Christian, aged 54 years, working as Manager Incharge in TAS Auto Company, Chennai, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

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8.R.T.Suresh Babu, S/o late R.T.David, Indian Christian, aged about 50 years, business, resident of 13th Main Road, Thiruvelliyar Nagar, Chennai, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

9.K.Samson Raju, S/o late Winniefred, Indian Christian, aged about 51 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt.D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

10. K.Vijaya Kumar, S/o late Winniefred, Indian Christian, aged about 49 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

11. K.Prasa, S/o late Winniefred, Indian Christian, aged about 41 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt.D.Mary Sarojini W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

12. Smt. Keti Victoria, W/o Govind and d/o Late Winniefred, aged 44 years, resident of Kakinada, represented by her Agent and POA holder Smt.D.Mary Sarohini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

...Plaintiffs

And:

1. Tynala Musalaiah, S/o late Musalaiah, Hindu aged 64 years, resident of D.No.29-9-4, (Old door No.29-9-3/1), Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

2. Tynala Dalamma, W/o Musalaiah, Hindu, aged 57 years, resident of D.No.29- 9-4, (Old door No.29-9-3/1), Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

3. Tynala Vijaya Kumar, S/o Musalaiah, Hindu, aged about 41 years, resident of D.No.2-9-5, (Old door No.29/9/3/1), 2nd floor, Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

4.P.Rama Rao, father's name not known to the plaintiff, Hindu aged about 45 years, resident of D.No.15-12-22/9, Flat No.30, Suraj Apartment, Opp: Simhadri Hospital, Krishnanagar, Visakhapatnam 530 002.

5.The Greater Visakhapatnam Municipal Corporation, represented by its Commissioner, Asilmetta, Visakhapatnam.

6.Serat Babu Bollina, S/o Sarveswara Rao, Hindu aged 32 years, resident of 78/4, Jeffrey Alan Ct., Releigh, NC 27613, USA.

7.Kum Pendyala Lakshmi Soujanya, d/o Pendyala Rama Rao, Hindu, aged 21 years, resident of 8-3-10/4, Flat NO.502, Palace Residency, Vizianagaram Palace Layout, Visakhapatnam-530 017.

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8.Smt.Dune Usha Rani, W/o Thatainaidu, Hindu aged 33 years, resident of 45-2-40/6, Ramachandranagar, Akkayyapalem, Visakhapatnam 530 016.

9.Ranjan Kumar Kanungo, S/o Kailash Chandra Kanungo, Hindu, aged 36 years, resident of Qr.No.P-169, Sector I, Damanjodi 763 008, Koraput District, Orissa.

(Amended as per Orders in I.A.966/2007 dated 19-7-2010)

10.Koppaka Krishna, S/o Koppaka Kannam Naidu, Hindu, aged about 32 years, resident of Door No.10-53-108, Block No.8/2, Nehru Nagar Quarters, Visakhapatnam.

11.Smt.Pendyala Indira Devi, W/o Ramarao, Hindu, aged about 45 years, resident of 15-12-22/9, Flat No.301, Suraj Apartment, Opp: Simhadri Hospital, Krishnanagar, Maharanipeta, Visakhapatnam.

12.Smt Lalam Garikamma, W/ late Kanakayya, Hindu, aged about 65 years, C/o Tynala Vijayakumar, D.No.29-9-4 & 5, (Old No.299-3/1), Lalitha Colony, Visakhapatnam.

...Defendants

Plaintiff filed this suit for granting per6manent injunction restraining the defendants 1 to 4, 6 to 12, their men, agents, successors, servants, kith and kin, from making any alienations or making any further constructions in the schedule property. For a mandatory injunction, directing the 5th defendant from removing and demolishing the unauthorized constructions made in the schedule property by following the procedure contemplated under the provisions of Hyderabad Municipal Corporation Act which is made applicable to Visakhapatnam city also by duty enquiring into the complaints lodged by the first plaintiff. For a permanent injunction restraining the 5th defendant from granting any permission/sanction for construction of building in any portion of the schedule property in the name of any third person other than the plaintiffs and for costs.

The value of the suit is Rs.45,000/(i.e., 15,000/- + 15.000/- + 15,000/-) and and a court fee of Rs.3,258/- (i.e., 1086/- + 1086/- + 1086/-) is paid under Sec.26(c) read with articles I (b) & (c) of schedule -I of A.P.C.F. and S.V.Act.

This suit is coming on 18.3.2015 for final hearing before me in the presence of Sri.J.V.Ramakrishna and V.V.Ravi Prasad learned Advocate for plaintiffs, and of Sri.L.Satyanarayana learned Advocate for the 2nd defendant and of Sri.K.S.Shankar, K.V.Lakshmi, learned advocate for D3 and of Sri.Badarinath & Madan Mohan learned Advocate for D4 and of Sri.Y.V.Satyanarayana learned Advocate for D4 and D1 died and D7 to D9 and D10 to 12 are exparte and having stood over for consideration to this day, this court doth order and :

D E C R E E

1.that the suit be and the same is hereby partly decreed by restraining the defendants 1 to 4 and 6 to 12 their men, agents, successor, servants, kith and kin, from making any alienations or making any further constructions in suit schedule property till the attain finality of partition suit i.e., O.S.No.755/1979 as well as restraining the 5th defendant from granting any permission/sanction for construction of building in any portion of the suit schedule property in the name of

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- 82 - any persons till the attain fainality of partition suit i.e., O.S.No.755/1979 and partly dismissed i.e., granting mandatory injunction for demolished of construction already made in suit schedule property.

2.That the plaintiff are at liberty to take appropriate steps for at appropriate stage to meet their share in partition suit.

3.That there be no order as to costs.

// plaint schedule is here to attached //

Given under my hand and the seal of the court, this the 8th day of April, 2015.

Ist ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

MEMORANDUM OF COSTS

For Plaintiff: For Defendant No.3 :

Costs memo not filed. Stamp on vakalath: 2-00 Advocate fee : 786-00 Stamp on process : 100-00 Advocate fee : 2,500-00 Jr. Advocate fee: 500-00 Type charges : 100-00 ----------- Costs certified: 3,988-00 -----------

For Defendant No.4:

Stamp on vakalath : 2-00 Advocate fee : 2,500-00 Jr. Advocate fee : 500-00 Type charges : 100-00 -------------- Costs certified : 3,102-00 --------------

Ist AJCJ / VSP

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Date: 8-4-2015: Judgement

Judgement Pronounced (vide

separate judgement) in the open court

In the result, suit is partly decreedbyrestrainingthe defendants 1 to 4 and 6 to 12 their men, agents, successor, servants, kith and kin, from making any alienations or making any further

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 84 - constructions in suit schedule property till the attain finality of partition suit i.e., O.S.No.755/1979 as well as restraining the 5th defendant from granting any permission/sanction for construction of building in any portion of the suit schedule property in the name of any persons till the attain fainality of partition suit i.e., O.S.No.755/1979 and partly dismissed i.e., granting mandatory injunction for demolished of construction already made in suit schedule property. However plaintiff are at liberty to take appropriate steps for at property stage to meet their share in partition suit.

IAJCJ/VSP

Date: 8-4-2015: Judgement

Judgement Pronounced (vide

separate judgement) in the open court.

In the result, suit dismissed without costs.

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OS.2988/2006 & O.S.1935/2006

- 1 -

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE ::

VISAKHAPATNAM

PRESENT: SRI.LAKSHMI NARAYANA.B

I ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

Wednesday, the 8th day of April, 2015.

O.S.No.2988/2006

Between:

1. Smt. D.Mary Sarojini, W/o M.D. Doss (D/o late Victoria Moses), Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K Nagar, Chennai 600 078.

2.Sri.V.M.Kripa Rao, S/o late Victoria Moses, Indian Christian, aged 75 years, resident of Sirpur Kagaz Nagar, A.P., represented by his Agent and POA holder Smt. D.Mary Sajojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K.Nagar, Chennai 600 078.

3.Smt.K.Vijaya Kumari, W/o K.Vijayakumar and D/o late Jaya Rao, Indian Christian, aged 40 years, resident of Jagannathapuram, Korukonda Veedhi, Kakinada, A.P., represented by her Agent and POA holder Smt.D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sectorm 36th Street, KK Nagar, Chennai 600 078.

4.V.Raju, S/o late Victoria Moses, Indian Christian, aged about 66 years, resident of Rajahmundry, A.P., represented by his Agent and POA holder Smt.D.Mary Sarojini, W/o M.D. Doss, Indian Christian, aged 64 years, residing at Plot Not.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

5.Smt.V.Sampoornamma, W/o late Mohan Rao and d/o late Victoria Moses, Indian Christian, aged 73 years, resident of Turangi, Kakinada, A.P., represented by her Agent and POA holder Smt D.Mary Sorojini, W/o M.D. Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K.Nagar, Chennai 600 078.

6.Sri.R.T.Appa Rao David, S/o late R.T.David, Indian Christian, aged 56 years, resident of Plot No.96, V Cross Road, NKV Nagar, Chennai, represented by his Agent and POA holder Smt.D.Mary Sarojini, S/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot NO.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

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7.R.T.David Madhava Rao, S/o late R.T.David, Indian Christian, aged 54 years, working as Manager Incharge in TAS Auto Company, Chennai, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

8.R.T.Suresh Babu, S/o late R.T.David, Indian Christian, aged about 50 years, business, resident of 13th Main Road, Thiruvelliyar Nagar, Chennai, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

9.K.Samson Raju, S/o late Winniefred, Indian Christian, aged about 51 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt.D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

10.K.Vijaya Kumar, S/o late Winniefred, Indian Christian, aged about 49 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

11. K.Prasa, S/o late Winniefred, Indian Christian, aged about 41 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt.D.Mary Sarojini W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

12. Smt. Keti Victoria, W/o Govind and d/o Late Winniefred, aged 44 years, resident of Kakinada, represented by her Agent and POA holder Smt.D.Mary Sarohini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

...Plaintiffs

And:

1. Tynala Musalaiah, S/o late Musalaiah, Hindu aged 64 years, resident of D.No.29-9-4, (Old door No.29-9-3/1), Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

2. Tynala Dalamma, W/o Musalaiah, Hindu, aged 57 years, resident of D.No.29-9-4, (Old door No.29-9-3/1), Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

3. Tynala Vijaya Kumar, S/o Musalaiah, Hindu, aged about 41 years, resident of D.No.2-9-5, (Old door No.29/9/3/1), 2nd floor, Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 3 -

4.P.Rama Rao, father's name not known to the plaintiff, Hindu aged about 45 years, resident of D.No.15-12-22/9, Flat No.30, Suraj Apartment, Opp: Simhadri Hospital, Krishnanagar, Visakhapatnam 530 002.

5.The Greater Visakhapatnam Municipal Corporation, represented by its Commissioner, Asilmetta, Visakhapatnam.

6.Serat Babu Bollina, S/o Sarveswara Rao, Hindu aged 32 years, resident of 78/4, Jeffrey Alan Ct., Releigh, NC 27613, USA.

7.Kum Pendyala Lakshmi Soujanya, d/o Pendyala Rama Rao, Hindu, aged 21 years, resident of 8-3-10/4, Flat NO.502, Palace Residency, Vizianagaram Palace Layout, Visakhapatnam-530 017.

8.Smt.Dune Usha Rani, W/o Thatainaidu, Hindu aged 33 years, resident of 45-2-40/6, Ramachandranagar, Akkayyapalem, Visakhapatnam 530 016.

9.Ranjan Kumar Kanungo, S/o Kailash Chandra Kanungo, Hindu, aged 36 years, resident of Qr.No.P-169, Sector I, Damanjodi 763 008, Koraput District, Orissa.

(Amended as per Orders in I.A.966/2007 dated 19-7-2010)

10.Koppaka Krishna, S/o Koppaka Kannam Naidu, Hindu, aged about 32 years, resident of Door No.10-53-108, Block No.8/2, Nehru Nagar Quarters, Visakhapatnam.

11.Smt.Pendyala Indira Devi, W/o Ramarao, Hindu, aged about 45 years, resident of 15-12-22/9, Flat No.301, Suraj Apartment, Opp: Simhadri Hospital, Krishnanagar, Maharanipeta, Visakhapatnam.

12.Smt Lalam Garikamma, W/ late Kanakayya, Hindu, aged about 65 years, C/o Tynala Vijayakumar, D.No.29-9-4 & 5, (Old No.299-3/1), Lalitha Colony, Visakhapatnam.

...Defendants

This suit is coming on 18.3.2015 for final hearing before me in the presence of Sri.J.V.Ramakrishna and V.V.Ravi Prasad learned Advocate for plaintiffs, and of Sri.L.Satyanarayana learned Advocate for the 2nd defendant and of Sri.K.S.Shankar, K.V.Lakshmi, learned advocate for D3 and of Sri.Badarinath & Madan Mohan learned Advocate for D4 and of

Sri.Y.V.Satyanarayana learned Advocate for D4 and D1 died and D7 to D9 and D10 to 12 are exparte and having stood over for consideration to this day, this court delivered the following:

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 4 -

C O M M O N J U D G E M E N T in O.S NO.2988/2006 &

O.S.NO.1935/2006

1.Plaintiff filed this suit for granting permanent injunction restraining the defendants 1 to 4, 6 to 12, their men, agents, successors, servants, kith and kin, from making any alienations or making any further constructions in the schedule property. For a mandatory injunction, directing the 5th defendant from removing and demolishing the unauthorized constructions made in the schedule property by following the procedure contemplated under the provisions of Hyderabad Municipal Corporation Act which is made applicable to

Visakhapatnam city also by duty enquiring into the complaints lodged by the first plaintiff. For a permanent injunction restraining the 5th defendant from granting any permission/sanction for construction of building in any portion of the schedule property in the name of any third person other than the plaintiffs and for costs.

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

O.S.2988/2006:

“It is submitted that one Appayya is originally the absolute owner of land measuring 2421 square yards of TS No.1459, Block No.42,

Lalitha Colony, Dabagardens, Visakhapatnam. The said Appayya had two sons by name Appalaswamy and Guruvulu. Apalaswamy The said

Appalaswamy had one son by name solmon David. The said solmon

David had two children by name Keti Victoria (Victoria Moses) and

Thomas David. It is submitted that the plaintiffs 1, 2, one late Jaya

Rao, father of 3rd plaintiff, 4th plaintiff and late Winniefred (mother of plaintiffs 9 to 12 ) are the children of the said Victoria Moses who died in the year 1940. The plaintiffs 6 to 8 are the children of Thomas

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OS.2988/2006 & O.S.1935/2006

- 5 -

David who died in the year 1987. It is further submitted that the plaintiffs herein are the descendants of Appalaswamy S/o Appayya. It is submitted that Guruvulu, S/o Appayya is having three children by names K.S.Ratnamma, K.Kanthamma and Prabhu Das. The aforesaid persons are the descendants of Guruvulu, S/o Appayya. It is submitted that during the year 1979 the first plaintiff herein filed a suit in O.S.755/79 on the file of I Additional Junior Civil Judge,

Visakhapatnam against K.S.Ratnamma, the 2nd defendant herein, one

R.Thomas David (father of plaintiffs 6 to 8), the first defendant herein, one Mohan Roy and the plaintiffs 2 to 5 and one Winniefred (mother of plaintiffs 9 to 12) for declaration that she is entitled for 1/24th share in the plaint schedule property and for a decree of partition of the same into 24 shares and to allot one such share and separate possession to her and for costs. During the pendency of the suit and before the

judgement could be passed in the suit. Thomas David died and the

plaintiffs 6 to 8 herein who are his legal heirs were imp leaded as defendants 11 to 13 in the suit. The suit was mainly contested by the defendants 1,3 and 5 therein. After full fledged trial the said suit was decreed by the learned I Additional Junior Civil Judge, Visakhapatnam by his decree and judgment dated 24-4-1995 by holding that the 1st plaintiff herein is entitled for the declaration that she is entitled to 1/24th share in the plaint schedule property and also for partition of the same and for allotment of possession of one such share among the 24 shares. In the aid decree and judgement, the learned I Additional

Junior Civil Judge also observed that the defendants 1 and 2 herein are entitled for such extent of property which was purchased by the 2nd

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 6 - defendant herein from the share of K.S.Ratnamma or from her legal heirs so far it is possible. It is submitted that thereafter the 1st plaintiff filed an application in I.A.749/96 under Order XX Rule 12 of

CPC praying the court to appoint a Commissioner for partition of the plaint schedule property by metes and bounds into 24 equal shares and allot one such share of property for which she is entitled to in terms of the preliminary decree dated 24-4-1995. On the said application on 21-10-1997, the Honourable I Additional Junior Civil

Judge was pleased to appoint one Sri.G.Bhaskara Rao, Advocate, as

Commissioner. Subsequently, the said Commissioner filed his report

before the Honourable court on 29-6-1999 along with sketches.

Thereafter, the plaintiffs 2 to 5, 9 to 12 herein filed an application in

I.A.584/2001 praying the Hon'ble court for passing a final decree in respect of their 5/24th share in the plaint schedule property. Similarly, the plaintiffs 6 to 8 herein also filed anther application in I.A.585/2001 praying the court to pass a final decree in respect of their 6/24th share in the plaint schedule property. It is pertinent to mention here that the plaintiffs 2 to 12 filed the aforesaid two applications in

I.A.584/2001 and I.A.585/2001 through the 1st plaintiff as their POA holder. All the aforesaid three applications filed by the plaintiffs herein were disposed by the learned I Additional Junior Civil Judge by a Common Order dt.9.8.2002. As the plaintiffs being the descendants of Applaswamy branch, they are having half share in the schedule property. In the said application, the plaintiffs 2 to 12 also filed their individual affidavits praying the Honourable Court to allot their share in the schedule property adjoining the share of the 1st plaintiff and to

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 7 - deliver the half share in the schedule property to the 1st plaintiff as the same will help them to utilise the half share of land of all of them for their best advantage. After full fledged enquiry, the Honourable I

Additional Junior Civil Judge by his orders dated 9.8.2002 by allotting

1210.50 sq yds of site which is situated on the southern side of the plaint schedule property to the plaintiffs herein who are the petitioners in Ias 749/96, 584/2001 and 585/2001 in O.S.No.755/1979 and by allotting the constructed area which is to the north of the entire schedule property as observed in the Commissioner's report to the share of defendants 1 and 5 in O.S.755/79 and their successors who are defendants 1 and 2 herein and their subsequent purchasers. It was also observed in the said order than in case defendants 1 and 5 in O.S.755/79 are entitled to any additional site apart from the site covered by the multi storied building to make 1210.50 sq. yds of site of their share in total, they can have the remaining site adjoining to the said multi-storeyed building site in the north side of the schedule property. It is submitted that the above kind of equitable partition was necessitated on account of the fact that either defendants 1 and 5 in

O.S.755/79 or persons who purchased extents from them during the

pendency of the suit made huge constructions on the northern side even during the pendency of the suit and after the preliminary decree was passed. It is submitted that thereafter, the plaintiffs representing the branch of Appalaswamy S/o Appayya filed EP 1336/2002 on the file of I Additional Junior Civil Judge, Visakhapatnam for working out the directions in the final decree and for delivery of their 1210.50 sq yards towards southern side of the schedule property. The Honourable

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- 8 -

I Additional Junior Civil Judge was also pleased to order delivery but the 3rd defendant herein who is the son of 1st and 2nd defendants herein caused obstructions with the result that the warrant was returned with a report of obstructions. Thereafter, a spate of petitions were filed by the defendants 1 and 2 herein and legal representatives of the 5th defendant in O.S.755/79. The 3rd defendant herein also filed an EA125/2003 in EP 1336/2000 under Order XXI Rule 97 of CPC to declare his title and not to dispossess him and close EP 1336/2002.

In the said application, the 3rd defendant herein stated that in addition to 1054 sq yds purchased by his mother – in law, Lalam Garikamma, him mother the 2nd defendant herein and one Lakshmaiah, he purchased 306 sq yds from the 5th defendant in O.S.755/79 under two registered sale deeds dt.10.5.99 and 11.5.99, that he also purchased a site along with AC roofed building together with extent of 282 sq yds from the 5th defendant in O.S.755/79 under a registered sale deed

dated 12.5.99. In the said application, the 306 sq yds purchased by

him is demarcated as IJKEOPL in the sketch attached to the petition which is towards the north-west, the entire total of which comes to 1360 sq yds in the north as against 1210.50 sq yds and 282 sq yds purchased by him under registered sale deed dt.12.5.99 is demarcated as EKJMD which is to the south-west corner in the plaint schedule property. The said application was opposed by the plaintiffs herein and the learned I Additional Junior Civil Judge by a detailed order dismissed the petition on the ground that he being the son the defendants 1 and 2 herein (defendants 2 and 4 in O.S.No.755/79) and also being an Advocate, he is aware of the pendency of the

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 9 - proceedings in the court and that he is not a bonafide purchaser and that the specific extents purchased after the preliminary decree would not confer title to the same. Thereafter the 3rd defendant herein filed

CMA 38/2004 on the file of Principal District Judge, Visakhapatnam,

against the said orders and also filed an I.A.1859/2004 for stay of execution of the decree in EP1336/2002 and the Honourable Principal

District Judge was pleased to grant interim stay initially for fifteen days

on 12-7-2004 and thereafter the same is being extended. It is submitted that the defendants 1 and 2 herein also filed an application in EA 1212/2003 under Section 47 of CPC to declare the final decree passed in IA.No.749/1996 in O.S.No.766/79 dated 9-8-2002 is nullity and unexecutable. The said application after elaborate enquiry was dismissed by the learned I Additional Junior Civil Judge,

Visakhapatnam on 29-6-2004. It is submitted that in a second appeal filed by the defendants 1 and 2 herein in SA 897/2001 before the

Honourable High Court of Judicature, Andhra Pradesh, Hyderabad

against the preliminary decree in O.S.755/79, the Honourable High

Court limited the same to only 633 sq. yds in their possession which area is partly occupied by the milt storied building as per the orders

dated 18-4-2003. It is submitted that the 1st plaintiff herein filed a

CMP in 8753/2003 in 2n appeal SA 897/2001 praying the Honourable

High Court to pass an order of injunction restraining the defendants 1 and 2 herein from ever alienating or making constructions on the half share of land situate on the southern side of the suit schedule property in O.S.No.755/79 which share has been allotted to the plaintiff's herein pending disposal of the 2nd appeal No.897/2001 preferred by them

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 10 - against the orders of the Honourable Court of I Additional Senior Civil

Judge, Visakhapatnam made in A.S.386/2000 dt.28-3-2001 preferred

against the preliminary decree of the I Additional Junior Civil Judge,

Visakhapatnam passed in O.S.755/79 dated 24-4-1995. In the said application, the Honourable Court by its order dated 18-4-2003 was pleased to restrain the defendants 1 and 2 herein from ever alienating or making constructions on the half share of the land on the southern side of the schedule property. It is submitted that the 3rd defendant who is no other than the son of 1st and 2nd defendants who has been living with them is also bound by the injunction order granted aginst his father and mother. It is submitted that the unless the schedule land is divided into 2 equal shares (2half shares) it is not possible to say to what extent the defendants 1 and 2 already made constructions and the extent covered by the constructions in excess of their half share of 1210.50 sq yards as by a mere look at the site would show that the portion occupied by the constructions on the northern side of the schedule property is larger than the remaining portion on the south.

3.It is submitted that having obtained the stay of execution, the 3rd defendant herein has started making construction in the entire portion to the West of milt storied complex in order to create further complications. It is submitted that as such constructions without partition by metes and bounds and without knowing the actual extent of 1210.50 sq yds it would be allotted to the share of D1 and D5 in

O.s.No.755/79 and their legal representatives and alienies is contrary

to law and such open and atrocious manner of construction during

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 11 - pendency of CMA and before partition can not be encouraged by any court of justice and as the third defendant has to be prevented by means of temporary injunction, the 1st plaintiff herein filed an application in I.A.No.3374/2004 in CMA 38/2004 on the file of Principal

District Judge, Visakhapatnam restraining him from making or

proceeding with any type of construction on any portion of the decree schedule land till the disposal of the CMA 38/2004. In the said application, after issuing notice 3rd defendant herein who is the sole respondent in the same application the learned Principal District

Judge,Visakhapatnam directed the respondent by order dated 18-11-

2004 to maintain status quo as on that day. The said application is still pending. In spite of pendency of the said application, the 3rd defendant in scant respect to the status quo orders passed by the

Honourable Court is proceeding with the constructions in the site to

the west of the multi-storeyed complex on the basis of some unenforceable and forged documents, Recently, the plaintiffs came to know that the defendants 1 to 3 herein to get over the orders passed by the High Court in CMP 8753/2003 in SA897/2001 and the status quo orders filed by the learned Principal District Judge in I.A.3374 in

CMA 38/2004 has created/ fabricated some documents in the name of

the 4th defendant and is making attempts to obtain the sanction from the 5th defendant for construction of additional structures in the plaint schedule property even before the half share of the plaintiffs on the southern side is demarcated by meets and bounds and delivered to them with a view to further complicate the matter and to see that the plaintiffs will not be having an inch of open land in the schedule

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 12 - property before the delivery could be made in the Execution proceedings.It is submitted that the 1st plaintiff on 3-7-2003 and 12-11-2004 addressed letters to the 5th defendant narrating the aforesaid facts requesting them not to grant any permissions for construction of structures in the schedule property and to take appropriate action against the wrongdoers who commence construction in the schedule property without any approved plan for protecting the half share of the plaintiffs in the schedule property. The 1st plaintiff also got issued a notice through her advocate on 9-11- 2004 to take action against the defendants 3 and 4 herein who commenced unauthorized construction in a part of the schedule property and also not to grant any permit/sanction in their favour for commencing construction in the schedule property. As there is no positive response from the 5th defendant and the defendants 3 and 4 are proceeding with construction in a part of the schedule property which is to the west of the multitoried complex, the 1st plaintiff got issued another notice to the 5th defendant on 18-9-2006 with the same prayer as made in the previous notice. These aspects will clearly show that the 5th defendant is openly supporting the defendants 1 to 4 herein and allowing the defendants 3 and 4 to proceed with the construction of the building to the west of the existing milt storied complex in the schedule property and also will go to the extent of granting building permission in the name of the henchmen of the defendants 1 to 4 as the third defendant happens to be an ex- corporator of the 5th defendant and an advocate by profession. As the facts of the 5th defendant in allowing the defendants 1 to 4 raise

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 13 - constructions in the schedule property and granting permission/ sanction in the name of 3rd parties without verifying the title of the applicants are not in pursuance or in intended execution of the provisions of Hyderabad Municipal Corporation Act, no notice under

Section 685 of the Hyderabad Municipal Corporation Act is necessary.

But, the 1st plaintiff has got issued two notices to the 5th defendant complaining about the acts referred above on 9-11-2004 and 18-9- 2006. It is submitted that as the plaintiffs are entitled to the southern half of 1210.50 square yards of land in the schedule property as per the final decree, they are having every right to protect the same till the same is delivered to them by demarcating the same by metes and bounds in the execution proceedings. If the defendants 1 and 2 who are parties to the suit in O.S.No.755/79 and the 3rd defendant being the appellant in CMA 38/2004, are not entitled to make any further constructions in the schedule property or seek permission for sanction of building plan for making construction in the schedule property in their names or in the names of their henchmen, by producing some forged and fabricated documents. Similarly, the 5th defendant under law is having an obligation to prevent unauthorized constructions in the city would also not to grant approvals to third parties than the real owners by thoroughly investigating their title. As all the defendants have colluded together and are bent upon to make constructions in the entire schedule property, even before the final decree passed in

O.S.No.755/79 is finally executed in EP.1336/2002, the plaintiffs being

the law abiding citizens are constrained to file the present suit to protect their half share in the schedule property from being converted

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 14 - into a constructed area after fighting the litigation for a period of more than 26 years in various courts at Visakhapatnam and in the High

Court at Hyderabad.

It is submitted that the plaintiffs herein came to know that the 4th defendant executed sale deeds in his favour and in favour of the defendants 6 to 12 herein with regard to the schedule property in

O.S.1935/2006 basing on the power given to him by the third and

12th defendants and he is developing the said property as a co owner and also in his capacity of developer. As such the defendants 6 to 12 are also proper and necessary parties to the present suit as per the orders of the Honourable Court made in I.A.966/2007 dated 19-7- 2010.” Finally plaintiff filed this suit with above prayer.

4.After caused the appearance by defendants they filed the written statement by denying the contention of plaint. The Brief

facts of written statement which are as follows in

OS.2988/2006 :

“ The defendant respectfully submits that Appala Swamy had one son by name Solmon David and daughter by name Rechalamma. This defendant further submits that Guruvulu had five children namely

K.S.Ratnamma, Mariyamma, Kantham, Prabhu Das sand John. This defendant further submits that the I Addl. Junior Civil Judge erroneously accepted I.A.No.584/2001 and I.A.No.585/2001 filed by

D6 to D10 and D11 to D13 in that suit said to have been filed through the sole plaintiff as their G.P.A. Holder by treating them as their shares were declared and determined in the preliminary decree viewing that those defendants were transposed as plaintiffs. This defendant further

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 15 - submits that against the preliminary decree dated 24-4-1995, D2 and

D4 filed an Appeal A.S.109/95 before II Addl. District Judge Court and subsequently the matter was transferred I Addl. Senior Civil Judge

Court and re-numbered as A.S.386/2000 and the same was also dismissed and against which second appeal S.A.897/2001 filed before the Hon'ble High Court at Hyderabad and the same still pending. It is true plaintiffs 2 to 12 herein filed their individual affidavits in the year 2002 praying the Honourable Court to allot their share by they have not mentioned about the S.A.897/2001 pending before the Honourable

High Court which was preferred against the preliminary decree, and they suppressed that fact and filed I.A.749/1996 I.A.584/2001 and

I.A.585/2001 and obtained final decree. This defendant further submits that the father of plaintiffs 6 to 8 herein namely R.Thomas

David D3 in O.S.755/1979 filed a written statement strongly contending that Rechelamma was a daughter of Appala Swamy and

Mary Sarojini's mother Victoria left the family after her marriage and disclaimed any interest in the suit property and the suit is hopelessly barred by limitation and he is not a co-owner of the plaint schedule property along with Mary Sarojini and the partition deed of 1945 is perfectly valid one. More over the said R.Thomas David (father of plaintiffs 6 to 8 herein) filed a suit O.S.407/1975 against

K.S.Ratnamma and this defendant originally for partition of jpart of plaint schedule property and in that suit 1st plaintiff herein Mary

Sarojini added as D8 and her brothers and sisters were added as D3 to

D7 and none of them filed written statement, claiming their shares over the suit schedule property, and R.Thomas Daid mainly contending

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 16 - that as per the Regd. Partition deed of 1945 an extent of 595 sq. yards of site fill to the share of Prabhudas, an extent of 1019 sq.yards fell to the share of K.S.Ratnamma and 807 sq. yards of site fill to him (Thomas Daid) his father and sister Rechalamma and as such plaintiffs 6 to 8 herein estopping from claiming any rights in the entire plaint schedule property. So also the other plaintiffs estopping from claiming any rights in the entire plaint schedule property. Therefore the branch of Appla Swamy namely plaintiffs 1 to 12 herein having rights of an extent of 807 sq. yards only out of total extent of 2421 sq. yards.

During the pendency of the said suit O.S.407/75 R Thomas David died and his three sons (who are plaintiffs 6 to 8 herein) were added as

L.Rs and the said suit was decreed on 30-3-1988 and against the decree and judgement this defendant preferred an appeal A.S.156/88

before the Honourable IV Addl. District Judge Court and the said

appeal was allowed on 30-7-2003 with costs with an observation “As per the documents and oral evidence discloses that D1 K.S.Ratnamma perfected title to the suit property by adverse possession. D2 therein (this defendant) proved that D1 became the owner of suit property”.

Against the Decree and Judgement plaintiffs therein, who are plaintiffs 6 to 8 herein preferred second appeal S.A.580/93 before the

Honourable High Court and the same was dismissed on 25-3-2004 as

withdrawn. In the said S.A.580/93 filed by plaintiffs 6 to 8 herein against the other. Plaintiffs herein and this defendant, and as such the said decree and judgement became final and it is binding on all the parties. The decree and judgement in O.S.407/75 operates adjudicate against the Decree and judgement in 755/79 and consequently on the

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 17 - final decree passed in I.A.749/96, I.A.584/01 and I.A.585/2001 cannot stand. In both suits parties are one and the same and the issue is one and the same. Therefore as per the Regd. Partition deed dated 14-3- 1945 in between Appala Swamy branch and Guruvulu Branch plaintiffs herein have no right and title over the plaint schedule property, and also as per the judgement in S.A.580/93. This defendant further submits that against the common order in I.A.749/96 I.A.584/2001 and I.A.584/2001 and I.A.585/2001 dated 9-8-2002 three appeals were filed by this defendant and D1 before the Honourable Prl. District

Judge Court and were posted for judgements. Plaintiffs have no prima

facie title over the plaint schedule property. There is no cause of action against this defendant and 1st defendant and the cause of action mentioned in the plaint is not correct. Plaintiffs suppressed the facts in O.S.407/75 through all of them and this defendants are the parties. This defendant is law abiding citizen. Balance of Convenience is in favour of this defendant. In view of judgement in S.A.580/ 93 and it will operates resjudicata in O.S.755/79 and the decree and

judgement. There are no bonafidies in this suit. Plaintiffs did not

come to the court with clean hands. The suit is not maintainable under law. Therefore this defendant prays that the suit may be dismissed with costs.

5. Brief facts of written statement filed 3rd defendant are as follows:

“ The defendant submits that the plaintiffs filed E.P.No.1336/2002 for delivery of 1210.50 sq.yds being the southern half share of the suit schedule property and having taken delivery warrant to take possession of a specific extent of schedule property, the plaintiffs

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 18 - cannot now agitate that the schedule property is yet to be demarcated by metes and bounds. The self-contradictory statement of the plaintiffs will lead to a conclusion that plaintiffs should have either mislead the executing court while obtaining the delivery warrant for 1210.50 sq.yds or they are now misrepresenting in the above suit. It is pertinent to here to mention that an Advocate Commissioner was appointed in final decree petition in I.A.No.749/1996 and the Advocate

Commissioner was appointed in final decree petition in

I.A.No.749/1996 and the Advocate Commissioner who was assisted by licensed surveyor found that the total extent is not 2421 sq.yds but only 2100 square yards. The Advocate Commissioner in the sketch appended to his report has also ear-marked a portion of land running from east to west in between northern and southern portion of schedule property for the purpose of way/passage for beneficial enjoyment of all the parties therein. In the above circumstances definitely the plaintiffs would not be having any right over 1210.50 sq.yds of land as it is evident from Advocate commissioner's report that total extent of schedule property is not 2421 sq.yds. Therefore the plaintiffs at this juncture cannot re-agitate that the property was not demarcated by metes and bounds and are estopped from contending so when they have taken delivery warrant for obtaining possession of a specific extent of property. This defendant submit that in the preliminary decree in O.S.755/79 the 1/24th share of the plaintiff was determined and the court did not determine the shares of other defendants and there the final decree in O.S.755/79 should be restricted to 1/24th share of plaintiff only. But the final decrees were

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 19 - passed as if the petitioners have got Half share in the entire property without any determination of their rights. Therefore the same is subject matter of challenge before the Prl. District Judge,

Visakhapatnam in A.S.No.417, 418 & 419/2004 and A.S.No.440, 441/2004.

6.This defendant further submits that the 3rd defendant in

O.S.No.755/1979 by name R.Thomas David filed another suit

O.S.No.407/1975 on the file of I Additional District Munisif Court,

Visakhapatnam for partition of the property which fell the share of his father by name Soloman David in a partition deed dated 14-3-1945 amongst all the sharers who are entitled to the share in the schedule property. The suit O.S.No407/1975 was decreed and as against the same, the defendants 1 and 2 herein preferred an appeal in

A.S.No.156/1988 and the decree and judgement in O.S.No.407/1975

was reversed. As against the same the plaintiffs herein preferred a second appeal in S.No.580/1993 before the Honourable High Court of

A.P. And thereafter got the same dismissed on 25-3-2004 as withdrawn. The second appeal was got withdrawn by the plaintiffs in frenzy mood as by that the final decrees were passed in

O.S.No.755/1979. Thereafter, the defendants 1 and 2 herein and the

vendor of this defendant preferred appeals before the Principal District

Judges Court, Visakhapatnam against final decree passed and rights

of the plaintiffs under final decrees are sub-judice in view of the appeals pending before Honourable Prl. District Judge's Court,

Visakhapatnam. This defendant submits that he is the absolute owner of an extent of 582.33l square yards having purchased the same under

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 20 - three different registered sale deeds Dt.10-5-1999, 11-5-1999 and 12- 5-1999. Out of total extent of 582.33 square .yards, 306 square yards which was purchased by this defendant is situated towards north-west of the total extent of the suit schedule property and 282.22 sq.yds is situated towards south-west of the suit schedule property.

The above property was purchased by this defendant from J.Mohan

Roy who is the 5th defendant in O.S.No.755/1979. The said J.Mohan

Roy succeeded to the property by way of testate succession under a registered Will executed by K.S.Ratnamma who is the 1st defendant in

O.S.No.755/1979. The said K.S.Ratnamma got the property under a

registered partition deed dated 14-3-1945 which was described as A schedule in the said partition deed. The said K.S.Ratnamma also purchased the share of Rechalamma who is another sharer and party to the partition deed dated 14-3-1945. In view of decree and

judgement in O.S.No.407/1975 and A.S.No.156/1988 the said J.Mohan

Joy's right in respect of A& B schedule properties covered by partition deed dated 14-3-1945 are confirmed and as such this defendant has got absolute title to said extent which is purchased by him through

J.Mohan Roy under the Sale Deeds referred above. Likewise, one Smt

Lalam Garikamma purchased an extent of 125 sq.Yds of land under a registered sale deed dated 8-8-1996, registered as document

No.2577/1996 and the said property is also situated in the northern part of the schedule property. The property purchased by this defendant under the sale deeds dated 10-5-1999 and 11-5-1999 and property purchased by Lalam Garikamma are abutting to each other and this defendant as well as said Lalam Garikamma used to enjoy the

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 21 - property a single block of land. At this juncture as the decree and judgment in O.S.No.407/1975 have attain finality the plaintiffs have no right over the schedule property. Therefore, the plaintiffs now cannot seek any injunction against this defendant who a true owner. The plaintiffs herein after understanding the legal consequences of the decree and judgement in O.S.No.407/1975 and it is effect over the final decree applications filed by them upon some loathsome advices resorted to this litigation by twisting and misrepresenting the facts.

The attempt of the plaintiffs in filing above suit is to start a fresh round of litigation as the decree and judgement in O.S.No.407/1975 is binding on them and that in view of the said decree they do not have any right over the schedule property. In any view of matter, it is submitted that plaintiffs herein have misrepresented the fact before this Honourable Court while filing above suit by stating that they are entitled to an injunction over the total extent of 2421 square yards

The plaintiffs being well aware that schedule property in

O.S.No.755/1979 is demarcated the filed the suit mischievously and

with a malafide intention to deprive this defendant from enjoying his own property. This defendant submits that above suit is a vexatious litigation initiated by the plaintiff. The plaintiffs while contending on one hand that status quo orders granted by Hon'ble Principal District

Judges Court, Visakhapatnam and Honourable High Court of A.P. Are in

force, cannot, again seek injunction against same property when a similar relief is already granted, for it would be subjecting this defendant to litigation for the same issue several times. In fact, plaintiffs have no right to make any claim over the property of 4th

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 22 - defendant as same is situated towards north-west of the suit schedule property and since plaintiffs were allotted southern side of schedule property, they cannot seek any injunction over entire extent much less the extent situated towards north of plaint schedule.

7.This defendant further submit that the suit is totally ill- conceived and engineered only to escape from the consequences that flow from the decree in O.S.No.407/1975 and A.S.No.156/1988 where under tile of this defendant's vendor is conformed with regard to properties covered by schedule A & B properties in Partition Deed

dated 14-3-1945. This defendant submits that above suit is benefit of

merits and the same lacks bonafides. The suit is bad of mis-joinder and non joinder of necessary parties and there is no cause of action for plaintiffs to file above suit. The cause of action mentioned in plaint is not correct and plaint schedule is also not correct as there is no such extent on ground within said boundaries. The plaintiffs of guilty of suppressing material facts and they are to be non-suited for the equitable relieves claimed in the suit. This defendant pays the Hon'ble court to dismiss the suit with costs against this defendant.

8. The Brief facts of 4 th defendant’s written statement which are as follows:

“This defendant submits that one Smt.Lalam Garikamma, W/o

Late Kanakayya and Sri.Thynala Vijay Kumar, S/o Sri.T.Musalayya, were the absolute owners of the property of an extent of 431.32 square yards together with a house bearing D.No.29-9-3, Assessment

No.24175, situated at Lalitha Colony, Dabagardens, Visakhapatnam, having purchased the same under separate registered sale deeds

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 23 -

dated 8-8-96, 10-5-99 and 11-5-99 registered as document

No.2577/1996, 1802 and 1834/99 from a common vendor Sri.J.Mohan

Roy and were in possession and enjoyment of the same as absolute owners. While Lalam Garikamma purchased an extent of 125 sq.yds together with a thatched house bearing D.No.29-9-3 at Lalitha Colony,

Dabagardents, Visakhapatnam under registered sale deed dated 8-8- 956 registered as document No.2577/96, the other purchasers

Sri.T.Vijay Kumar purchased an extent of 140 sq.yeds together with tiled house bearing D.No. 29-9-3, Assessment No.24175 under a registered sale deed dated 10-5-99, and another extent of 166.32 sq.yds under a registered sale deed dated 11-5-99. It is submitted that the above said Smt.Garikamma and Sri.Vijay Kumar herein after referred to as the vendors, for the purpose of brevity, were enjoying the entire property of 431.32 sq.yds as a single block of land. In respect of the house bearing No.29-9-3 situated in the said property,

Sri.T.Vijay Kumar used to pay property tax as the said property stood assessed in his name.

9.While it is so, the same vendors, on 6-7-2004 executed an

Agreement to sell with General power of Attorney in favour of this defendant, which was registered as document No.1468/2004, for an extent of 258.78 sq. yards together with a tiled house measuring 200 sq.ft, and have authorized this defendant to execute sale deed or sale deeds on their behalf to their nominees, and delivered physical possession of the same. Thus this defendant has been in the lawful possession and enjoyment of the suit property ever since then. This defendant has been praying the electrical consumption charges in

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 24 - respect of the suit-schedule property which service connection still stands in the name of one of the vendors of this defendant.

10.Pursuant to the said registered General Power of Attorney, this Defendant demolished existing structures in the plaint-schedule property with a view to construct group housing in the name & style of “Madhuvan Towers”. This defendant also submitted a plan in

B.A.No.2003-BA-10920-ACP-1/G-2 dated 8-10-2003 to the Municipal

Corporation, Visakhapatnam and the said plan was duly approved by the corporation as per the proceedings dated 8-10-2003. It may be relevant to submit herein that the defendant was granted three years time to complete the construction from the date of approval of the plan. After thus securing the approval, this Defendant, on the strength of the Registered General Power of Attorney cum Agreement to sell dated 6-4-2004 executed registered sale deeds in his favour and also in favour of his wife, daughter, nephew and another, in respect of undivided and unspecified extent of the suit property and has taken up the development of the entire property, by entering into development agreements with them. Thus the defendant being a co- owner of the undivided and unspecified extent of the suit property and as a developer of the remaining extent of undivided and unspecified share of the property, has been in physical possession and enjoyment of the suit property and has been carrying on the construction therein as per the approved plan. While it is so, the 1st plaintiff herein who has nothing to do with the suit-schedule property, all of a sudden on 22-8-2006, came near the suit schedule property, along with her husband and some unknown group of people and demanded this

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 25 - defendant who was supervising the constructions therein to vacate the same forthwith lest she would throw the defendant and the material from the suit site and occupy the same by force. She abused the defendant using foul language and threatened to implicate this defendant in a criminal case and would see to it that this defendant is ousted of the possession and enjoyment of the suit property. Shocked and surprised by the sudden, unjust and high-handed demand of the 1st plaintiff, the 4th defendant pleaded that the suit property has been lawfully purchased and has been in the possession and enjoyment of the same ever since from the purchase and from the time of entering development agreements, therefore the 1st plaintiff cannot resort to high-handed acts or make illegal demands but 1st plaintiff did not care to listen to this defendant and insisted that the defendant to stop the work and remove the watchman staying in the suit property and the material lying therein, and handover the same to her. Under those circumstances this Defendant, on 22-8-2006, lodged a complaint

before the Commissioner of police, Visakhapatnam regarding the

illegal and high-handed threats of the 1st plaintiff and her men and prayed for suitable action. The said complaint was acknowledged by the police under receipt dated 22-8-2006. Later the police advised the 1st plaintiff and her men and prayed for suitable action. The said complaint was acknowledged by the police under receipt dated 22-8- 2996. Later the police advised the 1st plaintiff not to resort to illegal and high-handed acts as the defendant has got proper documents and also an approved plan for making construction in the suit-schedule property. Despite the said advice the 1st plaintiff again on 23-8-2006

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 26 - once again came along with more men and demanded the Defendant to vacate the suit property and handed over the same to her, lest they would high-handed occupy the same land demolish the existing structures therein. However on intervention of the neighbours and the efforts of the watchman, this defendant could stop the illegal and high- handed attempts on the part of the 1st plaintiff temporarily. The 1st plaintiff, while leaving, claimed that she would come with more men and occupy the suit property in a day or two by dispossessing the

Defendant. This defendant submits that he has been in lawful possession and enjoyment of the suit property and having secured the approval of the plan has every right to make construction in the suit property as per the approved plan, which was have obtained from the

Municipal Corporation. The 1st plaintiff has no right to disturb the lawful possession and peaceful enjoyment of the suit property that too in a high-handed and illegal manner. If at all the 1st plaintiff has any right under law it is open for the 1st plaintiff to approach the court of law for necessary relief’s, but cannot take law into her hands and oust this Defendant from the possession and enjoyment of the suit property. Under these circumstances this defendant filed suit in

O.S.1935/2006 on the file of II Additional Junior Civil Judge,

Visakhapatnam on 24-8-2006 and obtained interim injunction restraining the 1st plaintiff, her men and agents from interfering with the possession and enjoyment of the property of this defendant, vide orders in I.A.574/2006 dated 24-8-2006. The said fact is well within the knowledge of the 1st plaintiff and other plaintiffs. However the plaintiffs suppressed the same and got filed the present suit as such

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 27 - the suit is liable to be dismissed on this ground itself. It is submitted that prior to and after filing of O.S.No.1935/2006, this defendant alone has been in possession and enjoyment of the suit property, so much so as the suit as filed for a bare injunction without having possession of the suit property of any manner, the suit is unsustainable under law hence liable to be dismissed. This defendant submits that he is not aware of the earlier litigation and the suits and interlocutory applications that were referred in the plaint and he is also not a party to the same. So much so this defendant at this stage is reserving his right to comment on these allegations however the defendant vehemently denies the binding nature of the earlier legal proceedings referred in the plaint on this defendant. This defendant reserves his right to traverse in detail, if necessary after ascertaining the true facts regarding the suit O.S.755/79 and its related matters, from his vendor in due course. This defendant reiterates that he is a bonafide purchaser of the suit property without any notice and the plaintiffs are fully aware of the same and the plaintiffs having acquiesced with lawful title and possession of the suit property and its enjoyment including the constructions that were made even prior to filing of

O.S.No.1935/2006 by this Defendant, is estopped under law from

questioning the same in any manner whatsoever. Hence it is submitted that the suit as filed is wholly unsustainable and is liable to be dismissed. It is submitted that the cause of action mentioned is incorrect and invented, in fact there is no cause of action at all for filing the present suit. The plaintiffs indulged in gross misrepresentation and suppressed material facts. Hence the suit is

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 28 - liable to be dismissed in lemini. It is submitted that the suit is not properly valued and the court fee paid by the plaintiffs are incorrect and the suit is liable to be dismissed on this ground also. It is therefore humbly prayed your Honourable Court may be pleased to dismiss the suit with exemplary costs, in the interests of justice”.

The Brief facts of 5 th defendant’s written statement which are

as follows:

11.“ This defendant Corporation submitted that permission was granted for construction of residential building consisting of Ground + 2 upper floors ink favour Sri. Rama Rao vide proceedings in

B.A.No.10920/2003 Dt.10-10-2003 subject observance of certain conditions as laid down in proceedings. The plan were approved in the year 2003. The construction has been commenced and completed except some finishing works. Whereas, the plaintiff submitted a representation on 18-9-2006 by which time the construction was almost all completed over the suit west of the apartment. However, this defendant Corporation issued a reply to the plaintiff to produce documentary evidence to substantiate his claim to the complaint/letter

Dt:18-6-2006. It is submitted that according to Town Surveyor

Register, the land in T.S.No1459 Block No.42 of Allipuram Ward to an extent of 2153Sq.Yds. Stands in the name of one Reyyi Appayya. As far as shares in the property are concerned, this defendant

Corporation has no information. This defendant Corporation further submit that no prima facie case and balance of convenience and the

Hon'ble Court grants any injunction this Corporation will be put to

hardship. Finally they prayed to dismiss the suit with costs.

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 29 -

12. Basing on the pleadings of both the parties, the following issues framed by the court for trial in O.S.2988/2006 :

1. Whether plaintiff has right on suit schedule property or not?

2. Whether plaintiff is entitled permanent injunction against D1 to D4, D6 to D12 as prayed for ?

3. Whether plaintiff is entitled mandatory injunction in

respect of plaint schedule property as pleaded by plaintiff.

4. Whether plaintiff is entitled to directed the 5th defendant

to demolish the construction made in plaint schedule property

as it is unauthorized construction or not ?

5. Whether plaintiff is entitle permanent injunction against

5th defendant by restraining him to grant any

permission/sanction for construction in suit schedule property.

6. To what relief?

O.S.No.1935/2006

Between:

Pendyala Rama Rao, S/o Late Narayya, Hindu, 49 years, landlord, residing at Door NO.15-12-22/9, Flat No.301, Suraj Apartment, Opp.Simhadri Hospital, Krishna Nagar, Visakhapatnam.

...Plaintiff

And:

Smt. Mary Sarojini, S/o Victoria Moses, Christian, aged 56 years, residing at D.No.34, Hall Road, Kilpank Gardens, Chennai, now present at Visakhapatnam.

...Defendants

This suit is coming on 18.4.2015 for final hearing before me in the presence of Sri.M/s Badarinath & Madhan Mohan learned Advocate for plaintiff, and of Sri. V.V.Ravi Prasad learned Advocates for the defendants and having stood over for consideration to this day, this court delivered the following:

13.The brief averments of the plaint are as follows in

O.S.1935/2006:

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 30 - “ It is humbly submitted that one Smt.Lalam Garikamma, W/o

Late Kanakayya and Sri.Tynala Vijay Kumar, S/o Sri.T.Musalayya, were the absolute owners of the property of an extent of 431.32 square yards together with a house bearing D.No.29-9-3, Harassment

No.24175, situated at Lalitha Colony, Dabagardens, Visakhapatnam, having purchased the same under separate registered sale deeds

dated 8-8-1996, 10-5-99 and 11-5-99 registered as Document

No.2577/1996, 1802/99 and 1834/99 from a common vendor Sri.

J.Mohan Roy and were in possession and enjoyment of the same as absolute owners. While Lalam Garikamma purchased an extent of 125 sq.yards together with a thatched house bearing D.No.29-9-3 at

Lalitha Colony, Dabagardens, Visakhapatnam under registered sale deed dated 8-8-96 registered as document No.2577/96, the other purchaser Sri.T.Vijay Kumar purchased an extent of 140 sq.yards together with tiled house bearing D.No.29-9-3, Assessment No.24175 under a registered sale deed dated 10-5-99, and another extent of 166.32 sq.yards under a registered sale deed dated 11-5-99. The xerox copies of the sale deeds of Lalam Garikamma & Sri.T.Vijay

Kumar are filed herewith for the kind perusal of you Honourabe Court, which may kindly be read as part of this plaint. It is submitted that the above said Smt.Garikamma and Sri. Vijay Kumar herein after referred to as the vendors, for the purpose of brevity, were enjoying the entire property of 431.32 square yards as a single block of land.

In respect of the house bearing D.No.29-9-3 situated in the said property, Sri.T.Vijay Kumar used to pay property tax as the said property stood assessed in his name. A xerox copy of the property tax

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 31 - book issued by the Municipal Authorities is filed herewith for the kind perusal of your Honourable Court, which may kindly be read as part of this plaint. While it is so, the said vendors, o 6-4-2004 executed an

Agreement to sell with General power of Attorney in favour of the plaintiff herein, which was registered as document No.1468/2004, for an extent of 258.78 sq.yards together with a titled house measuring 200 sq.ft, more fully described in the schedule annexed hereto which may kindly be read as part of the plaint and have authorized the plaintiff to execute sale deed or sale deeds on their behalf to their nominees, and delivered physical possession of the same. A copy of the agreement of sale cum General Power of Attorney dated 6-4-2004 is filed herewith for the kind perusal of your Honourable Court, which may kindly be read as part of this plaint. Thus the plaintiff has been in the lawful possession and enjoyment of the suit property ever since then. The plaintiff has been paying the electrical consumption charges in respect of the suit-schedule property which service connection still stands in the name of one of the vendors of the plaintiff. The latest original bill dated 11-8-2006 is filed herewith for the kind perusal of your Honourable Court, which may kindly be read as part of this plaint.

14.Pursuant to the said registered General Power of Attorney, the plaintiff herein, demolished the existing structures in the plaint- schedule property with a view to construct group housing in the name & style of “Madhuvan Towers”. The plaintiff also submitted a plan in

B.A.No.2003-BA-10920-ACP-I/G-2 dated 8-10-03 to the Municipal

Corporation, Visakhapatnam and the said plan was duly approved by the corporation as per the proceedings dated 8-10-2003. It may be

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 32 - relevant to submit herein that the plaintiff was granted three years time to complete the construction from the date approval of the plan.

A true copy of the approved plan along with the proceedings dated 8- 10-2003 is filed herewith for the kind perusal of your Honourable

Court, which may kindly be read as part of this plaint.

15.After thus securing the approval, the plaintiff, on the strength of Registered General Power of Attorney cum Agreement to sell dated 6-4-2004 executed registered sale deeds in his favour and also in favour of his wife, daughter, nephew and another, in respect of undivided and unspecified extent of the suit property and has taken up the development of the entire property, by entering into development agreements with them. Thus the plaintiff being a co-owner of the undivided and unspecified extent of the suit property and as a developer of the remaining extent of undivided and unspecified share of the property, has been in physical possession and enjoyment of the suit property and has been carrying on the construction therein as per the approved plan. The plaintiff is herewith filing the Registered

Development Agreements entered by the purchasers of the undivided and unspecified extents of the suit property , for the kind perusal of your Honourable Corut, which may kindly be read as part of this plaint.

While it is so, the Defendant herein who has nothing to do with the suit-schedule property, all of a sudden on 22-8-06, came near the suit property, along with husband and some unknown group of people and demanded the plaintiff who was supervising the constructions therein to vacate the same forthwith lest she would throw the plaintiff and the material from the suit site and occupy the same by force. She abused

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 33 - the plaintiff using foul language and threatened to implicate the plaintiff in a criminal case and would see to is that the plaintiff is ousted of the possession and enjoyment of the suit property.

Shocked and surprised by the sudden, unjust and high-handed demand of the defendant, the plaintiff pleaded that the suit property has been lawfully purchased and has been the chaser and from the time of entering development agreements, therefore the Defendant cannot resort to high-handed acts or make illegal demands but

Defendant did not care to listen to the plaintiff and insisted that the plaintiff to stop the work and remove the watchman staying in the suit property and the material lying therein, and handover the same to her.

Under those circumstances the plaintiff, on 22-8-2006, lodged a complaint before the Commissioner of Police, Visakhapatnam regarding the illegal and high-handed threats of the Defendant and her men and prayed for suitable action. The said complaint was acknowledged by the police under receipt dated 22-8-06. The original acknowledgement dated 22-8-06 of the receipt and a copy of the complaint are filed herewith for the kind perusal of your Honourable

Court, which may kindly be read as part of this pliant. Later the police advised the Defendant not to resort to illegal and high-handed acts as the plaintiff has got proper documents and also an approved plan for making construction in the suit-schedule property. Despite the said advice the Defendant again on 23-8-2006 once again came along with more men and demanded the plaintiff to vacate the suit property and handover the same to her, lest they would high-handed occupy the same and demolish the existing structures thereon. However on

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 34 - intervention of the neighbours and the efforts of the watchman, the plaintiff could stop the illegal and high-handed attempts on the part of the Defendant temporarily. The defendant, while leaving, claimed that she would come with more men and occupy the suit property in a day or two by dispossessing the plaintiff. The plaintiff submits that he has been in lawful possession and enjoyment of the suit property and having secured the approval of the plan has every right to make construction in the suit property as per the approved plan, which was have obtained from the Municipal Corporation. The defendant has no right to disturb the lawful possession and peaceful enjoyment of the suit property that too in a high-handed and illegal manner. If at all the

Defendant has any right under law it is open for the defendant to approach the court of law for necessary reliefs, but cannot take law into her hands and oust the plaintiff from the possession and enjoyment of the suit property. As the defendant, with the help of her henchmen, is consistently threatening him, the plaintiff has no option left but to approach this court for the relief of permanent injunction and other reliefs. Hence this suit.

16. After caused the appearance by defendants they filed the written statement by denying the contention of plaint. The Brief facts of written statement which are as follows:

“The suit was filed is bad in law and on facts and therefore liable to be dismissed in limini. This Defendant submits the real facts of the case, before averting to the case set up by the plaintiff, for the sake of convenience. This defendant submits that initially one Appayya was the owner of land measuring 2421 Sq.yards of site in T.S.No.1459,

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 35 -

Block NO.42, Lalitha Colony, Dabagardens, Visakhapatnam. The said

Appayya had two children by name Appalaswamy and Guruvulu.

Applaswamy had one son by name Solmon David. The said Solman

David had two children Keti Victoria (Victoria Moses) and Thomas

David. It is submitted that Keti Victoria died in the year 1940. She was blessed with 6 Children, who D.Mary Sarojini, this defendant

V.M.Kripa Rao, Jaya Rao, V.Raju, Winniefred and V.Sampoornamma.

Out of them Jaya Rao, and Winniefred, are no more. Late Jaya Rao, has one daughter, by name K.Vijaya Kumari, Late Winniefred was blessed with four children. It is submitted that Thomas David, who is the brother of Victoria Moses has three children, who are R.T.Appa Rao

David, R.T.David Madhava Rao and R.T.Suresh Babu. It is therefore submitted that the surviving Children and Grand children of Victoria

Moses and the surviving Children and Grand children of Victoria Moses and the surviving children and grand children of Thomas David, represent the estate of late Appalaswamy, son of Appayya. It is submitted that Guruvulu, the second son of Appayya, was blessed with three Children i.e., K.S.Ratnamma, K.Kanthamma and Prabhudas.

17.It is submitted that Appayya, who was the owner of the property stated above, died without making any testamentary disposition of the property, resultantly, the property devolved upon his two children i.e., Applaswamy and Guruvulu in equal shares. It is submitted that incidentally Appalaswamy and Guruvulu, who were brothers, also did not make any testamentary disposition, resulting devolution of the property on to their children, as per rules of succession. It is submitted that there was no division of the property

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 36 - between Appalaswamy and Guruvulu and they continued to hold the property jointly and in common during their lifetime. It is submitted that when the children of Guruvulu, Son of Appayya, started acting detrimental to the interests of the other co-owners, this Defendant, who had succeeded to the estate of her great grand father

Appalaswamy, filed a suit in O.S.No.755/1979 on the file of Honourable

Court of 1st Additional Junior Civil Judge, Visakhapatnam, involving the legal heirs of Guruvulu, involving all her brothers, sisters, maternal uncle R.Thomas David and others, for a declaration that she has 1/24th share in the property devolved on her through Appayya, showing the entire property as Plaint schedule property therein and for partition of the suit schedule property in the said suit, into 24 equal shares and for allotment of one such share to her and for putting her in physical possession of such separated share. It is submitted that during the pendency of the said suit, R.Thomas David, the maternal uncle of the plaintiff in the said suit (defendant in this suit) died and therefore his legal heirs were brought on record as defendants 11 to 13 therein. It is submitted that by the time of filing the suit,

K.S.Ratnamma, the first daughter of Guruvulu and the son of

Kanthamma, the second daughter of Guruvulu, by name Mohan roy, representing the estate of Kanthamma, were only alive and the remaining legal heirs representing the branch of Late Guruvulu, died and paradoxically except Kathamma, were only alive and the remaining legal heirs representing the branch of Late Guruvulu, died and paradoxically except Kanthamma, the other legal heirs of

Guruvulu, who were no more by the time of filing of the suit, have no

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 37 - issues to succeed to their estate and thus, the estate of Guruvulu, devolved upon his first daughter of K.S.Ratnamma and his grand son,

Mohan Roy, son jof Kanthamma. It is submitted that K.S.Ratnamma was the first Defendant in the suit and Mohan Roy was the 5th

Defendant. It is submitted that after filing the suit and during its pendency, the 1st Defendant K.S.Ratnamma died and she had no issues. It is submitted that the said suit was mainly contested by D1,

D2, D3 and D5 therein. It is submitted that D2 in O.S.No.755/1979 contended that she purchased an extent of 633 Square yards by means of a registered sale deed Dt.13-11-1973 from K.S.Ratnamma, the 1st Defendant in the suit and that she was a bonafide purchaser, interalia contending that the plaintiff in the said suit, was not entitled for relief of partition. It is submitted that on all other material aspects, D2 and D4 who are wife and husband, in the said suit

O.S.No.755/1979 have adopted the contention raised by the 5th

defendant Mr.Mohan Roy, the lone surviving legal heir of Guruvulu. It is submitted that after a full dressed trial the said suit was decreed by the Honourable court by Decree and Judgement Dt.24-4-1995 holding that the plaintiff therein (Defendant in this suit), is entitled to 1/24th share in the pliant schedule property land also for partition of the same and allotment of possession of one such share among 24 shares.

It is submitted that in the said Decree and Judgement, the Honourable 1st Additional Junior Civil Judge, observed that D2 and D4 i.e., one

Tynala Dalamma and Musalaih, in the suit O.S.No.755/1979 and who claimed to have purchased some extent from K.S.Ratnamma or from her legal heir, are entitled to such extent of property purchased from

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 38 - the share of K.S.Ratnamma. It is submitted that this Defendant, who is the plaintiff in the above suit O.S.No.755/1979, filed an application in I.A.No.749/1996 under Or.20 Rule 12 of C.P.C., praying the

Honourable court to appoint a Commissioner for partition of the Pliant

Schedule property into 24 equal shares by metes and bounds and for allotment of one such share to her, in accordance with the preliminary

Decree Dt.24-4-1995. It is submitted the Honourable court was pleased to appoint one G.Bhaskara Rao, Advocate, as commissioner.

It is submitted that the said Commissioner executed the Warrant and filed his report on 29-6-1999 along with sketches. It is submitted that similarly, those Defendants in the said suit, claiming share through Victoria Moses, the mother of this defendant and plaintiff in the above suit, filed applications in I.A.No.584/2001 and

I.A.No.585/2001 for passing decrees for their respective shares in the total schedule property. It is submitted that they filed individual affidavits praying the Honourable court for allotment of their shares adjacent to the share of the plaintiff in the suit. It is submitted that the plaintiff in the said suit, as Attorney of the applicants in fact presented those applications. It is submitted that the Honourable

Court was pleased to allow both the applications by a common order

Dt.9-8-2002. It is submitted that ultimately, the respective shares of all the descendants of Appalaswamy, Son of Appayya, were determined, covering half of the schedule mentioned property in the said suit i.e., 1210.50 Sq.yards, being the southern part of the suit schedule property. It is submitted the Honourable Court had allotted the constructed area which is in the northern part of the suit schedule

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 39 - property to Defendants 1 and 5 their successors, subsequent purchasers etc., In the orders passed in the final Decree of the said suit, the Honourable court also observed that in case defendant 1 and 5 of the said suit are entitled to any additional site apart from the site covered by the multi storied building to make 1210.50 Sq.yards of site of their share in total, they can have the remaining site adjoining the said multi storied building situated in the northern part of the suit schedule property of the said suit i.e.,O.S.No.755/1979. It is submitted that the above kind of equitable partition was necessitated on account of the fact that either Defendants 1 and 5 in the said suit or persons who purchased extents from them during the pendency of the suit made huge constructions on the northern side and after preliminary Decree was passed. It is submitted that thereafter the plaintiff (Defendant in this suit) in O.S.No.755/1979 along with the other member representing the branch of their great grand father

Appalaswamy, filed E.P.No.1336/2002 on the file of Honourable Court of Ist Additional Junior Civil judge, Visakhapatnem, for working out the directions contained in the Final Decree and for delivery of their 1210.50 Sq.yards of site, being the southern part of the suit schedule property. It is submitted that the Honourable executing court was pleased to order delivery of the property, but one Tynala Vijaya Kumar, son of Tynala Dalamma, obstructed delivery and therefore he bailiff of the Honourable Court returned warrant of delivery without execution, with report of obstruction. It is submitted that thereafter the father and mother of the said Tynala Vijaya Kumar by name Tynala Musalayya and Tynala Dalamma and the legal heirs of defendant No.5 in

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OS.2988/2006 & O.S.1935/2006

- 40 -

O.S.No.755/1979 filed number of petitions. It is submitted that

Mr.Tynala Vijaya Kumar also filed E.A.No.1225/2003 in

E.P.No.1336/2002 under Order 21 Rule 97 C.P.C. To declare his title

and for injunction not to dispose of him and to close

E.P.No.1336/2002. In the said application Mr.Vijaya Kumar contended

that in addition to 1054 sq.yards purchased by his mother – in law, his mother who is the 2nd defendant in O.S.No.755/1979 and one

Lakshmayya purchased 296 square yards from the 1st defendant in

O.S.No.755/1979 under two registered sale deeds dt.10-5-1999 and

11-5-1999 and that he also purchased a site along with A. C.roofed building covering an extent of 282 sq. yards from the 5th defendant in

O.S.No.755/1979 by means of a registered sale deed dt.12-5-1999.

In the said application the 306 sq.yards of site purchased by him from the 5th defendant in O.S.No.755/1979 under the two registered sale deeds stated above was demarcated as IJKEOPL in the sketch attached to the said application, which is towards the north-west of the schedule property and the piece of land ad measuring 282 Sq.yards purchased by him, under a registered sale deed dt/12-5-1999, was shown as EKJMD, situated towards south-west corner of the plaint- schedule property, in the sketch attached to the said petition. It is submitted that thus the family members of Tynala Vijaya Kumar and

Lakshmayya, who have claimed acquisition of rights through either D-1 or D-5 in O.S.N.755/1979 or from the descendants of Guruvulu,

Appayya, contended that they have 1642 Square yards out of the total extent of 2421 sq.yards, as against 1210.50 Square yards as per the

Preliminary Decree already passed. It is submitted that after complete

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 41 - adjudication, the Honourable court of I Additional Junior Civil Judge, was pleased to dismiss E.A.1225/2003 filed by Mr.Tynala Vijaya Kumar, holding that either Mr.Vijayakumar or their family members or persons claiming through the descendants of Guruvulu, cannot claim right over and above 1210.50 Sq.yards and also observed that Mr.Vijaya Kumar, who is an Advocate by profession, was aware of the proceedings pending before the court and that he was not bonafide purchaser. It is submitted that Defendants 2 and 4 in O.S.No.755/1979 who are the parents of Mr.Tynala Vijaya Kumar, also filed E.A.No.1212/2003 under section 47 of C.P.C. to declare that the Final Decree passed in

I.A.No.749/1996 in O.S.No.755/1979 Dated 9-8-2002, as nullity and in executable. The Honourable court of I Additional Junior Civil Judge,

Visakhapatnam, on 29-6-2004 dismissed the said application. It is submitted that the parents of Tynala Vijaya Kumar, who are defendants 2 and 4 in O.S.755/1979, filed A.S.386/2000 on the file of

Honourable court of I Additional Senior Civil Judge, Visakhapatnam,

impugning the preliminary Decree and Judgement Dt.24-4-1995 in

O.S.No.755/1979. It is submitted that A.S.386/2000 was dismissed,

confirming the Decree of the Lower Court, on 28-3-2001. It is submitted that, without stopping there, the appellants in A.S.386/2000 aggrieved by dismissal of the Appeal, filed S.A.897/2001 on the file of

Honourable High Court of Judicature and the same is pending as on

day. It is submitted that this defendant, who is the 1st Respondent in the Second Appeal, filed a civil Miscellaneous petition in CMP 8753/2003, for an injunction restraining the Appellants therein from alienating or making constructions in the half share, being the

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 42 - southern part of the suit schedule property allotted to her and to all the descendants of her great grand father, Appalaswamy in the preliminary Decree. It is submitted that the Honourable High Court was pleased to allow the application by order Dt.18-4-2003, restraining the Appellants therein, not to alienate or make construction in, the southern side half share of the suit schedule property. It is submitted that Mr.Tynala Vijaya Kumar, is also bound by the said orders, being the son to the Appellants in S.A.No.897/2001. It is submitted that the preliminary Decree of the court below was stayed to the extent of only 633 Sq.yards which was in their possession and which was partly occupied by multi storied building. It is submitted that aggrieved by the Orders in E.P.No.1225/2003, Mr.Tynala Vijaya

Kumar filed C.M.A.38/2004 on the file of Honourable Court of Principal

District Judge, Visakhapatnam and also filed I.A.No.1859/2004 in the

said C.M.A., for stay of execution of the Decree in E.P.No.1336/2002 and the Honourable court was pleased to grant stay and the same is being extended from time to time and the said C.M.A. Was dismissed with costs confirming the Decree and Order of the Trial Court vide orders dt.19-4-2007. It is submitted that Mr.Tynala Vijaya Kumar, taking advantage of the stay orders obtained by him in

I.A.No.1859/2004 in C.M.A.38/2004, started making construction in the entire area situated to the west of the multi storied building already in existence over the suit schedule property in

O.S.No.755/1979. It is submitted that this outrageous attitude of

Mr.Vijaya Kumar, forced this defendant to file an application in

I.A.No.3374/2004 in C.M.A.38/2004 for temporary injunction,

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 43 - restraining the Appellant i.e., Mr.Tynala Vijaya Kumar, from making any constructions in the suit schedule property. It is submitted that the

Honourable court was pleased to order statuesque. It is submitted

that, first of all the matter is sub-judice, in as much as a preliminary decree was already passed in O.S.No.755/1979, declaring the right of this defendant and other descendants of Appalaswamy, to he extent of 1210.50 Sq.yards in the total extent of 2421 Sq.yards, the southern portion in the entire extent was already identified to be allotted to their share and the delivery proceedings were pending before the

Honourable executing court which could have been over long back, but

for the frivolous petitions filed by Mr.Tynala Vijaya Kumar and his parents, and secondly restraint orders were in force against the parents of Mr.Vijaya Kumar, in C.M.P8753/2003 in S.A.897/2001 on the file of Honourable High Court of A.P., not to alienate the property or to make constructions and against Mr.Vijaya Kumar, himself, in

I.A.3374/2004 in C.M.A.38/2004 on the file of Honourable court of

Principal District Judge, Visakhapatnam. Further, the entire property is

yet to be divided into two half shares, the occupied by constructions is to be find out and the area in occupation of Tynala Dalamma, Tynala

Musalaiah, the Defendants 2 and 4 in O.SNo.755/1979, their family and all such persons claiming right through them in excess of their entitlement in terms of preliminary Decree, shall be determined. But, unfortunately Mr.Vijaya Kumar and his family members, who have already exhibited scant respect for the orders of the court, in order to escape from the restraint orders, hanging on their head, believed to have executed some sham and nominal documents in favour jof this

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 44 - plaintiff Mr.P.Rama Rao. It is submitted that this defendant come to know that the plaintiff herein was about to obtain sanction from the

Greater Visakhapatnam Municipal Corporation for construction of building in the schedule property in O.S.No.755/79. It is submitted that this defendant on 3-7-2003 and 12-11-2004 addressed letters to the Corporation narrating the facts and requesting not to accord any permission for construction of structures and to take appropriate action against the wrongdoers. It is submitted that this defendant also got issued a notice through her Advocate on 9-11-2004 to take action against Mr.Tynlala Vijaya Kumar and the plaintiff herein who have commence unauthorized constructions in part of the suit schedule property in O.S.755/79. This defendant got issued another notice to the Corporation on 18-9-2006 complaining making unauthorized constructions, as there was no response to the earlier notice. It is submitted that the Municipal Corporation has facilitated this plaintiff to proceed with the construction of the building to the west of existing building in the schedule property in O.S.No.755/79. It is submitted that what remained in O.S.No.755/79 is only physical handing over of 1210 sq.yards being the southern part of the schedule property in

O.S.No.755/79 to this defendant and to the other legal heirs of her

great grand father Appalaswamy but in the mean time Mr.Tynala

Vijayakumar and his parents, being supported by the present plaintiff wanted to complicate the matter and suffocate this defendant and suffocate the preliminary decree and the final decree proceedings in

O.S.No.755/79. It is submitted that in view of the prevailing situation

this defendant was constrained to file a suit in O.S.No.2988/2006 on

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- 45 - the file of Honourable Court of I Addl.Junior Civil Judge,

Visakhapatnam for a permanent injunction restraining Tynala

Musalayya, Tynala Dalamma, Tynala Vijaya Kumar, this plaintiff from making further constructions in the schedule property of the suit.

Which is the schedule property in O.S.No.755/79 and for a mandatory injunction against the 5th defendant in the said suit directing demolition of unauthorized constructions and for a permanent injunction restraining the 5th defendant granting any permission for construction of building in any portion of the schedule property. It is submitted that after filing of the suit this defendant received summons in this suit filed by the plaintiff and it is only after reading the pliant this defendant came to know that Municipal Corporation had already given permission for construction of a building. It is submitted that this plaintiff and Tynala Vijaya Kumar and his parents combinedly with a common intention are continuously frustrating the delivery proceedings in E.P.1336/2002 and their sole aim is to complicate the things and make the delivery proceedings incapable of being taken up, creating 3rd party rights. It is submitted that the plaintiff in the suit knowing fully well about the litigation, joining hands with Thynala Vijay

Kumar and his family, is pretending to be unaware of the litigation and pretending to be a bonafide purchaser. This defendant strongly suspects that the present plaintiff is a henchmen of Thynala Vijaya

Kumar and his family and the documents under which the plaintiff claims to have purchased the property, are nominal and sham. It is submitted that Thynala Vijaya Kumar and his family members unable to scuttle the delivery proceedings inventing this devious method of

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 46 - introducing a third person, are still trying to frustrate the proceedings.

It is submitted that at the instance of this defendant, who is the plaintiff in O.S.No.2988/2006, the Honourable Court of I Addl. Junior

Civil Judge, Visakhapatnam was also pleased to grant ad-interim

injunction restraining this plaintiff and the family members of Tynala

Vijaya Kumar from creating any third party interest in the schedule property of O.S.2988/2006 and from making any type of construction, vide orders in I.A.2116/2006 in O.S.No.2988/2006 and the said order was in forceIt is submitted that suppressing all these facts the plaintiff filed the present suit and therefore, the plaintiff cannot be given with the equitable relief prayed for, as he came to the court with unclean hands. It is submitted that the allegation that Smt.Lalam

Garikamma and Sri.Tynala Vijaya Kumar, son of T.Musalayya, were the absolute owners of the property of an extent of 432.32 Sq.yards together with a house bearing D.No.29-9-3, Assessment No.24175, situated at Lalitha Colony, Dabagardens, Visakhapatnam, having purchased the same under separate Sale deeds Dt.8-8-1996, 10-5-99 and 11-5-99 registered as document No.2577/1996, 1802/1999 and 1834/99 from a common vendor Sri.J.Mohan Roy and were in possession and enjoyment of the same as absolute owners etc., are all false and the plaintiff is put to strict proof of the same. Even otherwise, the sale of 125 Sq.yards by J.Mohan Roy in favour of Lalam

Garikamma, under Sale deeds Dt.8-8-1996 bearing document

No.2577/96 and sale of an extent of 140 Sq.yards and 166.32

Sq.yards under sale deeds bearing Nos., 1802/99 and 1834/99 by

J.Mohan Roy, in favour of Tynala Vijaya Kumar, were to be true, such

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 47 - sales cannot effect the rights of this defendant and the other legal heirs of this defendants great grand father Appalaswamy, confirmed in

O.S.No.755/1979. It is submitted that such sales are hit by doctrine

of is pendence and they are all subject to litigation. It is submitted as could be seen from the dates of sale, all of them were made subsequent to passing of preliminary Decree in O.S.No.755/1979 and when Final Decree proceedings were pending. Further, Mr.Tynala

Vijaya Kumar and Lalam Garikamma, were sure to have express knowledge about the litigation in view of the fact Tynala Vijaya Kumar is the son of D2 and D4 in O.S.755/79 and one Garikamma is no other than the mother in law of the said Vijaya kumar. It is therefore clear that J.Mohan Roy, who is the 5th defendant in O.S.No.755/1979 and the family members of Tynala Vijaya Kumar, have scant respect for legal system”. Finally he prays to dismiss the suit without costs.

18. Basing on the pleadings of both the parties, the following issues framed by the court for trial in O.S.1935/2006 :

1. Whether plaintiff is entitled for a decree of permanent

injunction restraining the defendant, his men, etc not to

interfere with the peaceful possession and enjoyment of suit

schedule property.

2. To what relief?

19. Heard both sides, Perused the material on record.

O.S.No. 2988/2006 filed by the plaintiff for permanent injunction

for entire extent of 2421 but the plaintiff in.O.S.1935/2006 filed the suit for permanent for an extent of 252.78 square yards which is part of suit schedule in O.S.No.2988/2006. Plaintiff in O.S.1935/2006 as well as the defendant in O.S.No.2988/2006 are one of the defendants

I AJCJ/VSP

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- 48 - i.e., defendant No.4 in O.S.No.2988/2006. The facts pleaded and deposed by the parties in these two suits are one and the same. So that this court inclined to dispose of these two suits with a common

judgements.

20.To substantiate the case of plaintiff in O.S.No.1935/2006, who is 4th defendant is O.S.2988/2006 examined as P.W.1 and he filed the examination in chief in O.S.No.1935/2006 by reiterating the contents of his plaint. Through this witness Ex.A1 to Ex.A9 marked in

O.S.No.1935/2006. In his cross-examination, he deposed that he

filed the suit against the Mary Sarojini for relief not to obstruct his construction process, but did not remember when defendant caused obstruction for his construction process either date, or month or year.

He further deposed that he could not say how many days the defendant caused obstruction for his construction work, but the same taken number of times. He further deposed that the age of the defendant i.e., Mary Sorojini and her husband are nearly 60 and 70 years respectively. He further deposed that at the time of obstruction caused by the defendant the persons who residing at Dalam R.K.

Apartments approached him and informed the name and residence of defendant. He further deposed that he could not say the names of persons who informed about the defendant. He further deposed that he was informed by the residents of Dalam R.K. Apartment, all the particulars of defendants as shown long cause title. He admitted that he was not asked them how they know all these particulars about the defendant. He further deposed that Dalam R.K. Apartment site belongs to Thinala Vijaya Kumar, and his family member and said

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- 49 -

Thynala Vijaya Kumar acted as M.L.A for the last Assembly in favour of

Congress Party. He further deposed that he has acquaintance with

Thynala Vijaya Kumar from 1996 and Thinala Vijay Kumar had knowledge about the suit in O.S.No.1935/2006. He further deposed that he informed to Vijay Kumar when defendant obstructed his work at that time Vijay Kumar residing at Dalam Apartment, at the time

Vijaya Kumar informed to him as he knew the defendant and her husband. He further deposed that Vijay Kumar knew the defendant as they each other had suits about lower floor of his property. He further deposed that as per his knowledge Vijaya Kumar is a fair man.

He admitted that at the time of obstruction of his work by defendant parents of the Vijay Kumar residing that lower floor of his property. He further deposed that Vijaya kumar informed to him as no cases pending about Dalam R.K. Apartment and site purchased by him. He further deposed that he not verified whether his site is included in suit between defendant and Vijaya Kumar and his family members. He admitted that one Garikamma is mother in law of Vijaya Kumar. He further admits that defendant herein i.e., Mary Sorojini filed

O.S.No.2988/2006 on the file of this court ( I Addl. Junior Civil Judge's

Court, Visakhapatnam) in that suit he received summons. He further deposed that he did not know the contents of written statement in this suit as well as plaint in O.S.No.2988/2006. He further deposed that in the year 2003 Vijaya Kumar approached him and expressed as he has intention to sold his property to clear his debts, on that he expressed as he has intention to purchase the same. He further deposed that he paid the sale consideration under Ex.A5 by way of instalments and

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 50 - received endorsement from Vijay Kumar in a dairy whenever he paid the sale consideration. He further deposed that he did not know the financial status of Vijaya Kumar in the year 2004. He admitted that in the year 2004 Vijaya Kumar is a famous Congress Party leader in

Visakhapatam and Corporator for Visakhapatnam Municipal

Corporation. He denied that prior to Ex.A5 he has no document to show his right on suit schedule property. He further deposed that he applied for approval of building plan in the year 2003 at the time he had one registered development agreement. He denied that he was not pleaded about the development agreement in his plaint and not filed the document, as there is no such document. He denied that he is only actor in the hands of Vijaya Kumar and his family members as they are behind the suit. He deposed that he had not observed any link documents while taking Ex.A5 from Vijaya Kumar. He denied that he got Ex.A5 for sham and nominal to complicate the litigation between Vijaya Kumar and defendant i.e., Mary Sarojini. He admitted that defendant filed a petition to add who purchase flats from him and in that petition also filed a counter by him. He further deposed that he did not know whether Vijay Kumar filed any claim petition in execution petition. He denied that after assessed as Vijaya Kumar may defeat in claim petition, Vijaya Kumar instigated to file this suit.

He denied that at the time of Advocate Commissioner visited the suit schedule property only completed 50% of construction. He voluntarily adds that work completed up to 70% at the time of Advocate

Commissioner visited the suit schedule property. He admitted that he completed the construction work after the visit of Advocate

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- 51 -

Commissioner. He further deposed that he did not know whether court passed any interim injunction in O.S.No.2988/2006 by directing not to make further construction. He further deposed that he did not remember whether any prohibitory order passed by the court served on him or not. He denied that he aware that the suit schedule property is part of subject matter in S.A.No.897/2009 on the file of

Honourable High Court filed by parents of Vijaya Kumar. He admitted

that Vijaya Kumar and his parents as no disputes between them. He denied that he, Vijaya Kumar and family members of Vijaya Kumar not having any respect on court orders. He denied that he suppressed material facts in his plaint. He denied that even his plan approved in the year 2003 and waited up to 2006 as suit is pending. At this stage he adds that he waited up to 2006 as he has no money to clear the sale consideration to Vijay Kumar. He denied that they obtained approved plan without having title because of Vijaya Kumar is a corporator.

21.This Pendyala Rama Rao also examined as D.W.2 in

O.S.2988/206 and he filed his examination in chief as affidavit by

reiterating his statement filed in O.S.2988/2006 as a 4th defendant.

Through this witness in O.S.2988/2006 marked the Ex.B1 to Ex.B5. In his cross examination, he admitted that he given instructions to prepare the examination in chief on the date of his examination i.e., 4-3-2015. He deposed that he stated to his counsel to prepare his examination in chief as “after he filed O.S.No.1935/2006, plaintiff herein filed this suit to escape from the orders passed in interlocutory application number 574/2006/”. He further deposed that he did not

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- 52 - know when the above said interim orders served on plaintiff herein.

He further deposed that he did not know originally the plaint in

O.S.No.2988/2006 had presented before the court. He admitted that

after service of summons in this suit, he was not made any efforts to know when the interim injunction orders in O.S.No.1935/2006 served on plaintiff herein with regard to whether she filed the suit after receipt or prior to receipt summons or not. He admitted that he has no basis to state plaintiff herein filed this suit to escape from the interim injunction orders in O.S.No.1935//2006. He denied by the date of issuance of approved plan i.e., Ex.B3, he is not the owner of the schedule property. He further deposed that he has sale deed in his favour by the date of issuance of approved plan ie., Ex.B3. He further deposed that he was not filed the registered sale deed stands on his favour by the date of Ex.B3. He denied that he has no sale deed in his favour for the schedule property by the date of Ex.B3, at this stage witness again says that instead of sale deed he has registered agreement in his favour. He admitted that he was not mentioned in his pleadings about the registered document of sale as well as same is also not mentioned in Ex.B1 ie., copy of agreement of sale cum General Power of Attorney. He denied that by the date of issuance of approved plan ie., Ex.B5 Tynala Vijaya Kumar (D.W.1 in

O.S.No.2988/2006) is a corporator for the ward where the suit

schedule property is situated. He denied that by the date of issuance of Ex.B3 he has no right, title on that property but on the influence of

Thynala Vijaya Kumar (D.W.1 in O.S.No.2988/2006) as a Corporator as well as he is benami/shadow/stooge of Vijaya Kumar got the Ex.B3.

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- 53 -

He denied that for the frustrate of legal battle of the plaintiff herein (O.S.No.2088/2006) they got the Ex.B3 and started the construction.

He further deposed the Thynala Vijaya Kumar (D.W.1 in

O.S.No.2988/2006) not informed about the dispute between Thynala

Vijaya Kumar and plaintiff herein by the date of Ex.B1 and Ex.B3. He further deposed that as per his knowledge and experience with D.W.1,

Thynala Vijaya Kumar i.e., (D.W.1 in O.S.No.2988/2006) is layer. He further deposed that he was started construction in suit schedule property in O.S.No.1935/2006 about 2 or 3 months prior to its presentation before the court. He further deposed that he stopped the construction work for a period due to financial problem, financial problem, ill health of him and because of plaintiff made a dispute with stop the work for the period of one month, but he is not in position to state the period of stopped the construction categorically. He denied that he never stopped the construction process still it was continue from the beginning. He deposed that Advocate Commissioner by name Johanvee visited the suit schedule property in the presence of his counsel, advocate for 3rd defendant and plaintiff, surveyor and also presence of parties. He admitted that Advocate Commissioner visited the suit schedule property at that time, his construction process is in progress, she prepared rough sketch and obtained signatures of above said persons on it. He further deposed that he did not know whether plaintiff obtained the interim injunction to the stop the construction work in the suit schedule property i.e., O.S.No.2988/2006. He further deposed that he did not know whether plaintiff herein filed a petition by alleging as he violated the interim injunction orders. He further

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 54 - deposed that he did not know the contents of examination in chief as well as cross examination of Mary Sorojini, who examined as P.W.1 in

O.S.No.2988/2006 and his counsel also not informed about the

contents. He admitted that after receipt of notice and summons in this suit ie., O.S.No.2988/2006 only sold the flats in his construction. He admitted that the persons who purchased from occupied their respective flats. He denied that though Municipal authorities knew the dispute with regard to the title they approved the plan on the influence of Thynala Vijay Kumar i.e., D.W.1 in O.S.No.2988/2006. He denied that he is not bonafide purchaser. He denied that they falsely filed report before police to use as it instrument for the dispute.

22.Plaintiff in O.S.No.1935/2006 examined one 3rd party by name Bylapudu Appalanaidu as P.W.2, one Kalla Satyanarayana as

P.W.3, one Jami Suresh Kumar as P.W.4. These 3rd party witness filed their examination in chief as affidavits by corroborating with the facts and version of O.S.No.1935/2006. Briefly the contents of P.W.2 to 4 examination in chief is as follows: “I submit that the plaint after obtaining approval from Municipal Corporation, started construction of group housing in the suit property. While the construction activity was in progress, on 22-8-2006, the defendant came near the suit schedule property along with her husband and some unknown group of people and demanded the supervisor of the plaintiff to stop the construction and vacate the same. On information, the plaintiff also came there. The defendant then abused the men of the plaintiff in a foul language and threatened to implicate the plaintiff and his men in a criminal case, if they do not vacate the suit property and deliver them

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 55 - the vacant possession of the same. Though the plaintiff pleaded that he has an approved plan and title for the suit property and the defendant cannot high-handedly and illegally stop the construction and the defendant once again threatened the plaintiff and his men with dire consequences if they proceed with further construction. Upon that the plaintiff lodged a complaint on the same day before the police and police asked the defendant not to interfere with the suit schedule property of the plaintiff. However, the defendant along with her men once again came to the suit property on 23-8-2006, and threatened the plaintiff with serious consequences if the construction is not stopped immediately and possession of the same is delivered to her”.

23.In cross examination of P.W.2, he deposed that since 2007, he is residing at address showed in his examination in chief prior to that he resided at Dalam Apartments, Dabagardens for rent. He further deposed that he knew one Suresh but he do not know whether

Suresh and Jami Suresh are one and the same or not. He further deposed that he did not know whether that suresh is owner of flat or tenant at Dalam Apartment, but he reside opposite flat. He further deposed that he do not remember whether Suresh present at the time of galata at suit schedule property or not. He admitted that according to him, he observe the galata from his window and out of curiosity he went to suit schedule property. He further deposed that he resided the flat owned by Thinala Vijayakumar and admitted he and Vijaya Kumar belongs to same caste. He further deposed that he was not purchased any flat from plaintiff at suit schedule property and he had acquaintance with plaintiff from last 15 years. He further deposed that

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 56 - he did not know the acquaintance between plaintiff and Thinala

Vijayakumar.

24.P.W.3 in his cross examination, deposed that when he was inducted as a watchman the same is vacant site at Dabagarden, thereafter constructed Apartment and now he is working as watchman in that Apartment. He further deposed that where he is working as guard at Dabagarden that Apartment belongs to plaintiff herein. He further deposed that he affixed thumb impression on examination in chief at their apartment as plaintiff herein brought the same. He further deposed that at about 8.00 a.m on the date of his examination i.e., 9-6-2014 went to house of Advocate to consult with him and plaintiff accompanied him. He further deposed that he did not remember what happened on 22-8-2006. He further deposed that even he received the salary as a guard but no document is available.

He further deposed that he did not know the defendant name and suit filed by plaintiff herein. He further deposed that when a woman came to the suit schedule at the time plaintiff not at suit schedule property and at the time he, Pydayya and Appala Naidu are present. He further deposed that he went to plaintiff’s house at Maharanipeta near

Simhadri Hospital and called him to suit schedule property. He further deposed that he returned with plaintiff to the suit schedule property till then that female person and remaining were present at suit schedule property. He admitted that the distance between Dabagardens to

Maharanipeta is about 4 or 5 kilo meters. He further deposed that at the time of galata plaintiff also not approached to the Thynala Vijay

Kumar and family members. He further deposed that both parties

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OS.2988/2006 & O.S.1935/2006

- 57 - not approached the police on the date of galata or next day.

25.In cross examination of P.W.4, he deposed that when he came out from his residence for cigarette, he was observed galata, so that he was proceeded to there. He further deposed that when he went to the suit schedule property plaintiff not present there and the said incident taken between 10.00 A.M. To 11.00 A.M. He further deposed that since last 8 years he residing at Dalam Archade

Apartments still residing there only. He further deposed that at para 2 of his examination in chief is true and correct as previously he used to reside at Dalam Apartment but not at present. He admitted that he purchased the flat at Dalam Archade from Thinala Musalayya and family members. He further deposed that as per his knowledge is concerned Thinala Musalayya and plaintiff are not relatives. Plaintiff purchased the suit schedule property from mother in law of Vijaya

Kumar. He admitted that at the time of Galata Thinala Vijaya Kumar and his family members not approached the plaintiff, vice versa. He further deposed that he observed the defendant herein on the date of

Galata at first time. He admitted that P.W.2 not possessed any property at Dalam Archade. He voluntarily adds that P.W.2 purchased flat at suit schedule property. He further deposed that while P.W.2 passing on the way and observe the galata and reached there. He further deposed that on the date of galata P.W.2 not purchased any flat at suit schedule property. He further deposed that P.W.3 worked as watchman at suit schedule property at the time of Galata but not at present as he worked from 2004 to 2011. He further deposed that he and plaintiff approached II Town Police station on the date of incident

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 58 - but the same is may not with in the knowledge of P.W.3.

26.Defendant in O.S.No.1935/2006 examined as D.W.1 and filed her examination in chief as affidavit, which is nothing but a copy of her written statement. Through this witness Ex.B1 to B4 marked.

In her cross examination, she deposed that she did not remember whether Exs.A1 to A5 which marked in ( O.S.1935/2006) contained any recital about the pendency of dispute relating to the suit schedule property in any courts. She admitted that as per the judgement in

O.S.No.755/1979 property partitioned as two equal shares comprising

an extent of 1210.50 sq.yards to each. She admitted that southern side half share allotted to her and northern half share allotted to D1 to

D5 therein. She admitted that present suit schedule property is on northern side of property covered in schedule of O.S.No.755/1979.

She admitted that as per Ex.B1, 5th defendant got property on northern side of schedule property of O.S.No.755/1979. She admitted that as per the documents filed by the P.Rama Rao i.e., D5 herein in

O.S.No.755/1979 sold the property infavour of Garikamma and

Thinala Vijaya Kumar. She admitted that Thinala Vijaya Kumar and his family resided after erected thatched shed abutting to tiled house which is a property under agreement for sale cum General Power of

Attorney i.e., Ex.B1 erected the thatched shed with a door No.29-9- 3/1 and also has electrical service connection on the name of Thinala

Vijaya Kumar. She admitted that Municipal Corporation accorded a permission to construct G + II Construction by removing existing structure i.e., D.No.29-9-3. She admitted that after getting permission removed the tiled house and thatched house by started a

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 59 - construction as per approved plan by plaintiff. i.e., Pendyala Rama

Rao. She further deposed that she did not remember whether they filed any document as they raised objection before Municipal

Corporation is sanction approved plan on the application of plaintiff.

She admitted that final decree petition in O.S.No.755/1979 court ordered to take possession of respective allotted shares but he was not taken possession of southern side share through court. At this stage she voluntarily deposed that she was prevented to take the possession. She admitted that she have no right on northern side share as per judgement in O.S.No.755/1979. She admitted that after commence the construction by plaintiff she and her husband approached to the construction place on 22-8-2006 but not threatened the plaintiff to stop the construction work of plaintiff. She admitted that presently O.S.No.755/1979 pending on the file of Honourable

High Court. She denied that they incorporated the para graph 3 to 10 in her examination in chief to their favour without reveal the real facts taken in that suit schedule property and the same is false. She admitted that they obtained the orders from Honourable High Court by restrained the Vijaya Kumar to registered any documents with regard to the southern side share as per Ex.B1. She admitted that she filed as O.S.No.2988/2006 on the file this court (I Addl. Junior Civil

Judge's Court) Thinala Musalayya and others in respect of Northern

side share as per Ex.B1. She admitted that she was not got any right on suit schedule property by the order of any court. She denied that she has habit to prolong the proceedings from 1979 without ascertain the right on property. She denied that plaintiff herein i.e., P.Rama Rao

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OS.2988/2006 & O.S.1935/2006

- 60 - is a bonafide purchaser and he purchase without knowledge of any prior dispute on suit schedule property. She admitted that the suit schedule property is in possession and enjoyment of plaintiff.

27.This witness i.e., Mary Sorojini in O.S.No.2988/2006 is one of the plaintiff as such she examined as P.W.1 in O.S.No.2988/2006 and she filed her examination in chief and also a copy of her pliant in

O.S.No.2988/2006 through this witness Ex.A1 to Ex.A4 marked. In

cross examination by 3rd defendant, she deposed that she did not remember exact extent of suit schedule property but court allotted an extent of 1210 sq.yards to them. She further deposed that thereafter these defendants constructed structure about 300 sq.yards situated towards north west corner of the entire property. She admitted that as per Ex.A1 they got an extent of 1210.5 sq.yards towards southern side of the entire property of northern. She admitted that as per

Ex.A1 they got an extent of 1210 sq.yards granted to defendants therein. She further deposed that even she filed execution petition for delivery of property but she was not got the delivery from the court.

She admitted that defendants in O.S.No.755/79 went to appeal on the

judgement of lower court and the same was dismissed by first

Appellate Court, then defendants went to 2nd appeal to Honourable

High Court. She denied that they have no right on northern side 1210 sq.yards of site. She further deposed that the defendant constructed apartments on southern side 1210 square yards. She denied that court delivered an extent of 1210 sq. yards on southern side, she may get the same from northern side site. She admitted that after consider the constructions of defendants in O.S.No.755/79 allotted the

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 61 - southern side to her and northern side to defendant in that suit. She denied that D3 and D4 purchased site from right full owner and constructed a house. She further deposed that as per court order to meet the 1210 square yards they have also right on northern side but defendants making constructions on northern side so that filed this suit. She denied that she filed the suit for injunction an extent of 2421 sq. yards. She further deposed that as 4th defendant making constructions in 400 sq. yards. She denied that D3 not made any construction towards 1210 sq.yards on southern part. She further deposed that Dalam apartments constructed by encroaching into 1210 sq.yards of southern side site. She admitted that they have no right on northern side except the southern side 1210 sq.yards. She denied that this suit is not maintainable as she showed the schedule for an extent of 2421 sq. yards. She denied that suit is not maintainable against D3 as he only construction of northern side which allotted to him.

28.In cross examination of D4, she admitted that she got an extent of 1210.5 square yards as per orders in Ex.A1. She admitted that she has no right on remaining land except 1210 square yards, which allotted to her. She admitted that she not taken possession of any extent. She admitted that towards northern side of 1210 square yards belongs to Thinala Dalamma, T.Musalayya and their son Vijaya

Kumar. She further deposed that in the year 2003 she came to know that 4h defendant has development agreement coupled with possession with T.Musalayya and family. She admitted that D4 constructed apartment in the land which taken from Thinala family.

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- 62 -

She admitted that D4 obtained approve plan from Greater

Visakhapatnam Municipal Corporation authorities to construct apartments. She further deposed that even she knew apartments’ plots are in occupation but she did not know who are in occupation.

She further deposed that she did not know whether she showed in this suit as a parties, who are in occupation of apartments. She admitted that she was not filed postal receipt by showing as she send the Ex.A4 to 5th defendant as well as acknowledgement from 5th defendant. She further deposed that the schedule showed for an extent of 2421 sq.yards may be wrongly noted by typographic mistake and northern boundary showed wrongly. She further deposed that she filed the suit against 4th defendant to restrain his construction because on southern side there is no 1210 sq.yards so that they allotted remaining land on northern side. She further deposed that she did not remember when she got the injunction orders and the same is in force or not. She denied that she got exparte injunction order by misleading the court.

29.In O.S.No.2988/2006 3rd defendant examined in suit as

D.W.1 and he filed his examination in chief as affidavit which is copy of his written statement. In cross examination of D4, he admitted that he sold an extent of 258.78 sq.yards to D4 to the north west corner of their share and it mistakenly mentioned in the examination in chief as south west corner.

30. In cross-examination of plaintiff i.e., Mary Sarojini, he admitted that he was enrolled as an Advocate on the roles of

Visakhapatnam Bar Association, but he has no active practice. He admitted that he acted as corporator, where the suit schedule property

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OS.2988/2006 & O.S.1935/2006

- 63 - is situated from 2000 to 2005 and 2007 to 2009. He admitted that he was a member of Legislative Assembly from 2009 to 2014. He denied that they migrated to Visakhapatnam about 30 years back from

Appikonda Village. He admitted that his parents are illiterate as well as mark (thumb impression) persons. He further deposed that his parents blessed with five children, who are alive at present. He further deposed that his parents purchased part of site in the suit schedule property in between 1970 to 1973. He further deposed that he did not remember how much extent purchased by his parents together or individual out of 2,421 sq.yards. He further deposed that he did not remember under how many documents his parents purchased the site out of 2,421 sq.yards. He admitted that Lalam

Garikamma is his mother in law and she is an illiterate and mark person. He further deposed that he, his parents’, and his mother in law are all together claiming ownership on entire 2,421 sq.yards. He further deposed that they are claiming 2421 square yards by way of title deeds for some extent remaining claiming basing on the judgment delivered by the court. He further deposed the claiming the some extent basing on the judgment in O.S.No.407/1975 on the file of

District Munsif's Court, Visakhapatnam. He further deposed that his parents were parties in O.S.No.407/1975 as well as plaintiff herein also. He further deposed that one Thamas David filed

O.S.No.407/1975 for partition and it was decreed by trial court,

thereon his parents preferred an Appeal and it was allowed by set aside the trial court judgement. He admitted that above referred

Thama David is none other than father of plaintiffs No.6 to 8 in this

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OS.2988/2006 & O.S.1935/2006

- 64 - suit. He admitted that first plaintiff herein filed O.S.No.755/1979 on the file of I Addl. Junior Civil Judge's Court, Visakhapatnam, against his parents’ and his parents’ vendors’ by claiming partition. He further deposed that recently he gone through the judgement in

O.S.No.755/1979. He admitted that his parents’ and Mohan Rao are

main contestants and taken a plea that plaintiffs’ in O.S.No.755/1979 has no right on suit schedule property. He denied that they intentionally not filed decreed and judgement in O.S.No.407/1975 and

O.S.No.755/1979 as they are against evidence given by him. He

admitted that he has no dispute with his parents with regard to any respect. He admitted that whenever his suggestions and assistance required to his parents extended the same. He further deposed that an extent of 2,130 sq yards approximately available on ground but did not know about remaining 291 sq.yards. She further deposed that he never measure the schedule property and came to knew through

Advocate Commissioner's report that 2,130 sq.yards is available on ground. He admitted that he has an Advocate Commissioner’s report, who appointed in Final Decree partition filed by 1st plaintiff herein in

O.S.No.755/1979. He further deposed that he did not know whether

defendants in O.S.No.755/1979 taken a plea that schedule property is only available for an extent of 2,130 sq.yards or not. He admitted that

O.S.No.755/1979 taken between two branches ie., Appala Swamy

branch and Guruvulu branch. He admitted that plaintiffs herein are representatives of Appala Swamy branch and they are claiming right through the branch of Guruvulu. He admitted that Guruvulu branch also got an extent of 1210.5 sq.yards as per final decree order. He

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 65 - further deposed that after consider the Advocate Commissioner's report court passed the final decree. He denied that an extent of 2421 sq.yards available on ground so that only court passed final decree for that extent. He admitted that his parents preferred an appeal on preliminary decree passed in O.S.No.755/1979 and first appeal also dismissed and at present 2nd appeal i.e., S.A.No.897/2001 is pending and on the file of Honourable High Court. He admitted that preliminary decree in O.S.No.755/1979 passed in the year 1995. He admitted that after passed the final decree his parents started a construction of Dalam Apartment as given for development. He denied that he and his parents as no respect on court orders. He further deposed that he did not know whether Honourable High Court not granted any stay in petition filed by his parents for more than 633 square yards, where Dalam Apartments construction is situated.

Witness admitted that documents shown to him as he purchased the site and his mother in law purchased site from one J.Mohan Rao under 3 documents which are marked as Ex.A5 to A7. Witness admitted that document shown to him is development agreement executed by witness and his mother in law in favour of 4th defendant herein which marked as Ex.A8. He further deposed that he did not remember whether he executed any document in favour of 4th defendant prior to

Ex.A8. He denied that 4th defendant acting as be-nami to him. He further deposed that suit schedule property is not their ancestral property. He further deposed that he cannot say how his father is owner on part of suit schedule property ie., owner for some extent.

He further deposed that he has three sale deeds on his name out of

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 66 - 2,421 sq.yards but he cannot say the extent exactly with stands on his name. He further deposed that an extent covered under three sale deeds may be 588 sq.yards as suggested by plaintiff's counsel and his mother in law has an extent of 125 sq. yards approximately. He admitted that coupled the extent stands on his name, mother's name and his mother in laws name may approximately 1348 sq.yards and out of that 282 fallen on southern side and remaining land is in northern side. He further deposed that he showed in Ex.A8 on southern side as passage measuring 9 feet X 67-11 feet and the same is included in an extent of 1348 sq.yards. He further deposed that the said passage is in existence, when Advocate Commissioner visited the suit schedule property. He further deposed that the passage, which referred supra, is also included in an extent of 2,130 sq.yards, which he deposed earlier stated as ground reality. He further deposed that he given for development of site to 4th defendant by excluding of his 282 sq.yards situated on southern side. He further deposed that he sold away to 4th defendant except 282 sq.yards, he has no other lands at suit schedule property on his name. He admitted that on southern side of suit schedule property there is a drain, which is one of the largest drain in Visakhapatnam. He admitted that northern side half is more comfortable than southern side of suit schedule property. He admitted that prior to Ex.A8 there is no document to show the ownership rights on part of present suit schedule property infavour of 4th defendant, in the year 2003 to approval the plan submitted by the 4th defendant . He admitted that he and 4th defendant violated the orders of injunction issued by the court. He further deposed he

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OS.2988/2006 & O.S.1935/2006

- 67 - informed about the pendency of litigation from 1979 and 4th defendant observed the final decree order. He further deposed that he knew that 4th defendant filed O.S.No.1935/2006 on the file of this court. He further deposed that he knew that his mother and father filed

S.A.No.97/2001 on the file Honourable High Court. He admitted that he filed the C.M.S.A.No.65/2007 against the orders in C.M.A.38/2004.

He denied that they did not adhere the spirit of the above said stay orders by dealing with the suit schedule property by denying the enjoyment of plaintiff herein. He admitted that he was not obtained any permission from Honourable High Court to made construction or alienation of suit schedule property but he did not know his parents.

He further deposed that he did not know whether Honourable District

Court Observed while disposing C.M.A.NO.38/2004 as he and parents colluded to filed this petition. He further deposed that as per his contention and opinion plaintiff herein has no right even on extent of 1040 sq.yards located on southern side of suit schedule property.

31.ISSUE NO.1 in O.S.No.2988/ 2006 :-

It is an admitted fact by the D.W.1 (tynala Vijaya Kumar) that plaintiffs’ are representatives of Applaswamy i.e., one of branch in partition suit for the suit schedule property i.e., an extent of 2421 square yards. D.W.1 further admitted that they are claiming right over the suit schedule property through the branch of Guruvulu as they purchased site from them. It is an admitted fact by D.W.1 that the O.S.No.755/79 decreed by granting 1/24th share in-favour of

Mary Sarojini. Thereafter in final decree petition other share holder who representing the branch of Appalaswamy filed a petitions and also

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OS.2988/2006 & O.S.1935/2006

- 68 - given a power of Attorney in favour of Marry Sarojini as their share ie., ½ share out of 2421 square yards shall allot at one place. On consider the same the Honourable Court granted all shares to

Applaswamy branch on southern side of Guruvulu branch. It is an admitted fact by the D.W.1 that his parents filed S.A.No.897/2001 which is pending on the file of Honourable High Court. Therefore, these facts clearly established that plaintiffs representing the

Applaswamy branch as such they have right on suit schedule property.

32. ISSUE NO.2:- in O.S.2988/2006:

ISSUE NO.1 of 1935/2006:-

The plaintiffs in O.S.No.2988/2006 seeking permanent injunction restraining the D1 to D4 and D6 to D11 to act on suit schedule property. On the other, hand the plaintiff in O.S.No.1935/2006 seeking permanent injunction against the Marry Sarojini for an extent of 258.78 square yards. The learned counsel for plaintiff in

O.S.1935/2006 and D1 in O.S. 2988/06 argued that Marry Sarojini and

others filed O.S.2988/2006 by seeking the permanent injunction for entire 2421 square yards and the same is not maintainable as she was allotted only 1210.05 square yards as per the decree in O.S.755/1979.

He further argued that the plaintiff in O.S.1935/2006 ie., Pendyala

Rama Rao is a bona-fide purchaser from the rightful owners. When the matter is pending before the Honourable High Court as a 2nd appeal it shows the litigation not attained the finality. As such, the rights of parties not settled, only the lower court allotted southern share i.e., an extent 1210.5 square yards of Appalaswamy branch and northern 1210 square yards allotted to Guruvulu branch. The D.W.1

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 69 - clearly and categorically admitted that they are not the legal heirs of any branch. The D.W.1 ie., 3rd defendant version is that they purchased the property from one Mohan Roy, who is a representative of Guruvulu branch. The documents filed by the Marry Sarojini, which clearly shows that the parents of D.W.1 who are the parties in

O.S.No.755/97 only got the property after decided the rights of their

vendors. So without conformed the rights of vendors of the D1 to D3 they have no right on particular extent. Moreover D1 and D2 herein who are parents of D3 preferred an appeal as they aggrieved the

judgement and decree in O.S.755/79. So it clearly shows they are

not accepted the shares decided by the lower court. In such a situation defendants has no right to deal with either northern share or the southern share. The learned counsel for D4 in O.S.2988/2006 and plaintiff in O.S.1935/2006 clearly submitted before this court that when the litigation attain the finality the shares may altered by

Honourable appellate court. In such a situation how the defendants

dealt with the property by alienating and creating the interest to 3rd parties is not explained by the learned counsel for Pendyala Ramarao.

The observation of lower court as per Ex.A1 that after consider the constructions made by the D1 and D2 passed preliminary decree in

O.S.No.755/79 allotted the northern share to Guruvulu branch as it

consisted multistored building as per Advocate Commissioner report.

The learned counsel for plaintiff in O.S.2988/2006 and defendant in

O.S.1935/2006 argued that even Appalaswamy branch got the

southern side share even though its one of the side there is a Major drainage canal as such the northern share is prime locality, than

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OS.2988/2006 & O.S.1935/2006

- 70 - southern side share and the same was accepted by consider the multi storied building. Even though defendant preferred the appeal and without getting any finality creating the rights to 3rd parties with intended to prolong the litigation. In cross examination of

D.W.1(Tynala Vijaya Kumar) clearly and categorically stated the plaintiff in O.S.2988/2006 has no right on any part of 2421 square yards but he was not explained how they got entire property .

Moreover this D.W.1 is an Advocate and also acted as a Corporater and member of Legislative Assembly. Even though he was not explained how he has right on entire 2421 square yards. This statement of

D.W.1 shows that he has intention to get entire 2421 square yards into his clutches. In this context it pertinent to observe the observation made by Honourable District Court in Ex.A4 in O.S.No.2988/2006 that this D.W.1 and his parents colluded and filing petitions. In the present suit also D4 obtained the Municipal Corporation permission for construction of multi storied building without having any right on the date of Municipal authorities approved the plan. In this respect D5 filed his written statement by stating that even Marry Sarojini filed petition, she was not approached with documents but D5 not clarified on what basis they approved plan. Moreover D5 in his written statement clearly stated as per Town Surveyor record, this suit schedule property showing on the name of Appalasamy. So in such a situation how they approved plan infavor of Penyala Rama Rao not explained or not entered into witness box to depose the facts by according opportunity to other side to elicit the facts in cross examination. It is an admitted fact by D4 in O.S.No.2988/06 and

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OS.2988/2006 & O.S.1935/2006

- 71 - plaintiff in O.S.No.1935/2006 that he obtained agreement of sale cum

GPA which marked as Ex.A8 in O.S.2988/2006, which shows the same was taken on 6-4-2004. Ex.B5 is approved plan along with proceedings issued on 8-3-2003 either 3rd defendant or 4 defendant in

O.S.No.2988/2006 not filed any documents by showing on the date of

Ex.B3 Pendyala Rama Rao has right on property. Moreover the vendors of P.Rama Rao has no clear title because partition between plaintiff and Guruvulu branch not attained finality. So it clearly shows Ex.B3 issued by the 5th defendant in O.S.No.2988/2006 without verified the documents. Its gives a strength to the arguments of learned counsel for plaintiff in O.S.2988/2006 that Tinala Vijay Kumar i.e., D.W.1 in O.S.2988/2006 influenced the Municipal Authorities as a corporator. It is also admitted fact that P.Rama Rao i.e., plaintiff in

O.S.No.1935/2006 and 4th defendant in 2988/2006 constructed the

apartment and sold away in favour of third parties. So it clearly shows the defendants creating the interests infavour of 3rd parties without attaining finality for the partition suit on hand agitating and other hand creating third parties interest. So it certainly effect the rights of plaintiffs in O.S.No.2988/2006, as per Ex.A1 in

O.S.2988/2006 as consider the multi storied building on northern side

it was allotted to Guruvulu Branch. So by taking advantage of the same D.W.1 creating the documents and also 3rd parties interests because D.W.1 is having legal knowledge, he admitted that his parents and mother in laws are illiterate and also marks persons. It is also admitted fact by D.W.1 i.e., Tynala Vijay Kumar that he extend his suggestions and co-operation whenever it needed to his parents. So

I AJCJ/VSP

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- 72 - that only this court came conclusion that Tynala Vijay Kumar acting adversely to the interest of plaintiffs. So on considering above facts and circumstances, this court feels that it is necessary to restrain the defendants to create any 3rd party interests as well as dealing with the suit schedule property i.e., entire extent of 2421 square yards because partition suit not attain the finality. Even Pendyala Rama Rao filed suit for permanent injunction, his right will be conformed only after attained finality to the partition suit. Moreover the documents ie., approved plan and his agreement sale cum General Power of Attorney is adverse to his version. So it shows he not approached the court with clean hands. Accordingly these issues answered.

33. ISSUE NO.3 and 4 of O.S.No.2988/2006:-

The plaintiff in O.S.2988/2006 seeking relief of mandatory injunction in respect of plaint schedule property and directed 4th defendant to demolish the construction made in plaint schedule property as it unauthorized construction. P.W.1 in O.S.No.2988/2006 clearly and categorically admitted that construction was completed and some persons occupied their respective plots. D.W.2 in O.S.2988/2006 clearly admitted that he completed construction and sold away the same. Therefore, it clearly shows that the construction was already completed. We already observed in supra that partition suit not attain finality so without attained finality, the rights of parties not conformed on the suit schedule property. The construction of property is not only property of individual and it is also wealth of nation, so that without conforming right of plaintiff on particular extent is not safe to pass mandatory injunction for demolished. However plaintiff in

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- 73 -

O.S.No.2988/2006 are at liberty to approach the proper forum for this

relief at appropriate stage. Accordingly this issue answered.

34. ISSUE NO.5 in O.S.2988/2006:-

The plaintiff seeking permanent injunction restraining the 5th defendant to grant permission or construction in suit schedule property? We already observed in supra that 5th defendant sanctioned the plan in-favour of the 4th defendant in O.S.No.2988/2006 without having any title on the date of approved plan as such it presume that

D3 ie., Tynala Vijay Kumar as a Corporater at the relevant time influenced the authorities to grant the approved plan. We are also observed supra that Tynala Vijay Kumar clearly and categorically stated that plaintiffs in O.S.No.2988/2006 has no right on any inch of land even though they are representing branch of Appalaswamy.

Moreover, we are also observed in supra that this Tynala Vijaya Kumar colluded with his parents and creating the documents and litigation.

Therefore, to protect the interest of Appalaswamy Branch to restraining the 5th defendant from sanctioned the approved plan to constructed anything at suit schedule property. Accordingly this issue answered.

35. ISSUE NO.6 in O.S.1935/ 2006:

In the result, suit is dismissed without costs.

36. Issue No. 2 in O.S.No. 2988/2006:

In the result, suit is partly decreed by restraining the defendants 1 to 4 and 6 to 12 their men, agents, successor, servants, kith and kin, from making any alienations or making any further

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 74 - constructions in suit schedule property till the attain finality of partition suit i.e., O.S.No.755/1979 as well as restraining the 5th defendant from granting any permission/sanction for construction of building in any portion of the suit schedule property in the name of any persons till the attain fainality of partition suit i.e., O.S.No.755/1979 and partly dismissed i.e., granting mandatory injunction for demolished of construction already made in suit schedule property. However plaintiff are at liberty to take appropriate steps for at property stage to meet their share in partition suit.

Dictated to the Personal Assistant transcribed by her, corrected

and pronounced by me in the open court on the 8th day of April, 2015.

I ADDL. JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE IN O.S.1935/2006

WITNESSES EXAMINED FOR

PLAINTIFFS: DEFENDANTS:

PW.1: Pendyala Rama Rao D.W.1: Mary Sarojini

P.W.2:Bylapudu Appalanaidu

P.W.3: Kulla Satyanarayana

P.W.4: Jami Suresh Kumar

DOCUMENTS MARKED FOR

PLAINTIFFS:

Ex.A1/8-8-1996 : Certified copy of the Registered sale deed executed in favour of Lalam Garikamma.

Ex.A2/10-5-1999: Certified copy of Registered sale deed executed in favour of Tynala Vijay Kumar

Ex.A3/11-5-99: Certified copy of the registered sale deed executed in favour of T.Vijay Kumar.

Ex.A4/6-4-2004: Original property tax pass book bearing No.81765 issued for the house bearing D.No.29-9-3, Lalitha

Colony, Dabagardens area, Visakhapatnam in favour of Thynala Vijay Kumar.

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- 75 -

Ex.A5/6-4-2004: Original registered agreement of sale cum general power of attorney executed in favour of P.Rama Rao.

Ex.A6/: Original Electricity bills along with e-seva for the service connection bearing D.No.1320 224606 located in housek bearing D.No.29-9-3/1 (4 electricity bills and 2 receipts)

Ex.A7/8-10-2003: Original approved building plan along with proceedings issued by the commissioner GVMC.

Ex.A8/22-8-2006: Office copy of the compliant given by P.W.1 to

Central compliant cell, O/o commissioner of Police,

Visakhapatnam.

Ex.A9/22-8-2006: Original receipt issued by the O/o commissioner of police, Visakhapatnam.

DOCUMENTS MARKED FOR

DEFENDANTS:

Ex.B1/8-8-1996 : the certified coy of decree in I.A.No.749/1996 in

O.S.No.755/1979 on the file of I Addl. Junior Civil Judge,

Visakhapatnam.

Ex.B2/: The certified copy of a common orders passed in

I.A.No.749/1996, I.A.NO.584/2001 and

I.A.No.585/2001 in O.S.No.755/1996 on the file of

I Addl. Junior Civil Judge's Court, Visakhapatnam.

Ex.B3/: The certified copy of decree in A.S.No.442/2004 on the file of Prl. Distrcit Judge's Court, Visakhapatnam.

Ex.B4/--: The certified copy of common judgement passed in

A.S.No.417, 418,419, 440, 441 and 442/2004 and

CMA.No.38/2004 on the file of principal District Judge,

Visakhapatnam.

A PPENDIX OF EVIDENCE IN O.S.2988/2006

WITNESSES EXAMINED FOR

PLAINTIFFS: DEFENDANTS:

PW.1: Doss Mary SarojiniD.W.1: Thynala Vijayakumar

D.W.2: Pendyala Rama Rao

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 76 -

DOCUMENTS MARKED FOR

PLAINTIFFS:

Ex.A1/9-8-2002 : Certified copy of common order passed by the I

Addl. Junior Civil Judge's Court, Visakhapatnam in

I.A.No.749/1996, I.A.No.584/2001 and

I.A.585/2001 in O.S.No.755/1979

Ex.A2/29-6-2004: Certified copy of orders in E.A.No.1212/2003 in

E.P.No.1336/2003 in O.S.755/1979 passed by

I Addl. Junior civil Judge's court. Visakhapatnam.

Ex.A3/11-5-99: The certified copy of affidavit from petition and orders thereon in I.A.No.3374/2004 in CMA

No.38/2004 of Prl. District Judge, Visakhapatnam.

Ex.A4/18-9-2006: The office copy of legal notice.

DOCUMENTS MARKED FOR

DEFENDANTS:

Ex.B1/6-4-2004: The copy of agreement sale cum General Power of

Attorney,

Ex.B2/: The electricity bills 4 in number

Ex.B3/8-10-2003: The copy of approved plan along with proceeding

Ex.B4/--: the copy of complaint before the Commissioner of police.

Ex.B5/22-8-2006: The copy of acknowledgement of the receipt issued by police

Ist A.J.C.J. V.S.P

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 77 -

Date of Presentation :24.8.2006 Date of filing :24.8.2006

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE::VISAKHAPATNAM

PRESENT: SRI.LAKSHMI NARAYANA.B

I ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

Monday, the 8th day of April, 2015.

O.S.No.1935/2006

Between:

Pendyala Rama Rao, S/o Late Narayya, Hindu, 49 years, landlord, residing at Door NO.15-12-22/9, Flat No.301, Suraj Apartment, Opp.Simhadri Hospital, Krishna Nagar, Visakhapatnam.

...Plaintiff

And:

Smt. Mary Sarojini, S/o Victoria Moses, Christian, aged 56 years, residing at D.No.34, Hall Road, Kilpank Gardens, Chennai, now present at Visakhapatnam.

...Defendant

Plaintiff filed this suit for granting permanent by restraining the defendants her men and agents and privates from ever interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and for costs of the suit.

The value of the suit, for the purpose of court fee and jurisdiction is Rs.15,000/- and court fee of Rs.1,086/- is paid under Article 1 Schedule 1 read with Sec.26(c) of A.P.C.F. and S.V.Act. (Challana No.69, dated 24-8-2006.

This suit is coming on 18.3.2015 for final hearing before me in the presence of Sri.M/s Badarinath & Madhan Mohan learned Advocate for plaintiff, and of Sri. V.V.Ravi Prasad learned Advocates for the defendants and having stood over for consideration to this day, this court doth order and :

D E C R E E

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

2.That there be no costs.

// plaint schedule is here to attached //

Given under my hand and the seal of the court, this the 8th day of April, 2015.

Ist ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 78 -

MEMORANDUM OF COSTS

For Plaintiff: For Defendants:

Costs memo not filed. Stamp on vakalath: 2-00 Stamp on plaint : 1,086-00 Stamp on process : 100-00 Advocate fee : 1,250-00 Jr.Advocate fee : 400-00 Type charges : 100-00 ----------- Costs Certified : 2,938-00 -----------

Ist AJCJ / VSP

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 79 -

Date of Presentation :15.12.2006 Date of filing :21.12.2006

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE::VISAKHAPATNAM

PRESENT: SRI.LAKSHMI NARAYANA.B

I ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

Wednesday, the 8th day of April, 2015.

O.S.No.2988/2006

Between:

1. Smt. D.Mary Sarojini, W/o M.D. Doss (D/o late Victoria Moses), Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K Nagar, Chennai 600 078.

2.Sri.V.M.Kripa Rao, S/o late Victoria Moses, Indian Christian, aged 75 years, resident of Sirpur Kagaz Nagar, A.P., represented by his Agent and POA holder Smt. D.Mary Sajojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K.Nagar, Chennai 600 078.

3.Smt.K.Vijaya Kumari, W/o K.Vijayakumar and D/o late Jaya Rao, Indian Christian, aged 40 years, resident of Jagannathapuram, Korukonda Veedhi, Kakinada, A.P., represented by her Agent and POA holder Smt.D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sectorm 36th Street, KK Nagar, Chennai 600 078.

4.V.Raju, S/o late Victoria Moses, Indian Christian, aged about 66 years, resident of Rajahmundry, A.P., represented by his Agent and POA holder Smt.D.Mary Sarojini, W/o M.D. Doss, Indian Christian, aged 64 years, residing at Plot Not.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

5.Smt.V.Sampoornamma, W/o late Mohan Rao and d/o late Victoria Moses, Indian Christian, aged 73 years, resident of Turangi, Kakinada, A.P., represented by her Agent and POA holder Smt D.Mary Sorojini, W/o M.D. Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, K.K.Nagar, Chennai 600 078.

6.Sri.R.T.Appa Rao David, S/o late R.T.David, Indian Christian, aged 56 years, resident of Plot No.96, V Cross Road, NKV Nagar, Chennai, represented by his Agent and POA holder Smt.D.Mary Sarojini, S/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot NO.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

7.R.T.David Madhava Rao, S/o late R.T.David, Indian Christian, aged 54 years, working as Manager Incharge in TAS Auto Company, Chennai, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 80 -

8.R.T.Suresh Babu, S/o late R.T.David, Indian Christian, aged about 50 years, business, resident of 13th Main Road, Thiruvelliyar Nagar, Chennai, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

9.K.Samson Raju, S/o late Winniefred, Indian Christian, aged about 51 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt.D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

10. K.Vijaya Kumar, S/o late Winniefred, Indian Christian, aged about 49 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt D.Mary Sarojini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

11. K.Prasa, S/o late Winniefred, Indian Christian, aged about 41 years, resident of Jagannadhapuram, Korukondapeta, Kakinada, represented by his Agent and POA holder Smt.D.Mary Sarojini W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

12. Smt. Keti Victoria, W/o Govind and d/o Late Winniefred, aged 44 years, resident of Kakinada, represented by her Agent and POA holder Smt.D.Mary Sarohini, W/o M.D.Doss, Indian Christian, aged 64 years, residing at Plot No.290, VII Sector, 36th Street, KK Nagar, Chennai 600 078.

...Plaintiffs

And:

1. Tynala Musalaiah, S/o late Musalaiah, Hindu aged 64 years, resident of D.No.29-9-4, (Old door No.29-9-3/1), Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

2. Tynala Dalamma, W/o Musalaiah, Hindu, aged 57 years, resident of D.No.29- 9-4, (Old door No.29-9-3/1), Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

3. Tynala Vijaya Kumar, S/o Musalaiah, Hindu, aged about 41 years, resident of D.No.2-9-5, (Old door No.29/9/3/1), 2nd floor, Lalitha Colony, Dabagardens, Visakhapatnam 530 020.

4.P.Rama Rao, father's name not known to the plaintiff, Hindu aged about 45 years, resident of D.No.15-12-22/9, Flat No.30, Suraj Apartment, Opp: Simhadri Hospital, Krishnanagar, Visakhapatnam 530 002.

5.The Greater Visakhapatnam Municipal Corporation, represented by its Commissioner, Asilmetta, Visakhapatnam.

6.Serat Babu Bollina, S/o Sarveswara Rao, Hindu aged 32 years, resident of 78/4, Jeffrey Alan Ct., Releigh, NC 27613, USA.

7.Kum Pendyala Lakshmi Soujanya, d/o Pendyala Rama Rao, Hindu, aged 21 years, resident of 8-3-10/4, Flat NO.502, Palace Residency, Vizianagaram Palace Layout, Visakhapatnam-530 017.

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 81 -

8.Smt.Dune Usha Rani, W/o Thatainaidu, Hindu aged 33 years, resident of 45-2-40/6, Ramachandranagar, Akkayyapalem, Visakhapatnam 530 016.

9.Ranjan Kumar Kanungo, S/o Kailash Chandra Kanungo, Hindu, aged 36 years, resident of Qr.No.P-169, Sector I, Damanjodi 763 008, Koraput District, Orissa.

(Amended as per Orders in I.A.966/2007 dated 19-7-2010)

10.Koppaka Krishna, S/o Koppaka Kannam Naidu, Hindu, aged about 32 years, resident of Door No.10-53-108, Block No.8/2, Nehru Nagar Quarters, Visakhapatnam.

11.Smt.Pendyala Indira Devi, W/o Ramarao, Hindu, aged about 45 years, resident of 15-12-22/9, Flat No.301, Suraj Apartment, Opp: Simhadri Hospital, Krishnanagar, Maharanipeta, Visakhapatnam.

12.Smt Lalam Garikamma, W/ late Kanakayya, Hindu, aged about 65 years, C/o Tynala Vijayakumar, D.No.29-9-4 & 5, (Old No.299-3/1), Lalitha Colony, Visakhapatnam.

...Defendants

Plaintiff filed this suit for granting per6manent injunction restraining the defendants 1 to 4, 6 to 12, their men, agents, successors, servants, kith and kin, from making any alienations or making any further constructions in the schedule property. For a mandatory injunction, directing the 5th defendant from removing and demolishing the unauthorized constructions made in the schedule property by following the procedure contemplated under the provisions of Hyderabad Municipal Corporation Act which is made applicable to Visakhapatnam city also by duty enquiring into the complaints lodged by the first plaintiff. For a permanent injunction restraining the 5th defendant from granting any permission/sanction for construction of building in any portion of the schedule property in the name of any third person other than the plaintiffs and for costs.

The value of the suit is Rs.45,000/(i.e., 15,000/- + 15.000/- + 15,000/-) and and a court fee of Rs.3,258/- (i.e., 1086/- + 1086/- + 1086/-) is paid under Sec.26(c) read with articles I (b) & (c) of schedule -I of A.P.C.F. and S.V.Act.

This suit is coming on 18.3.2015 for final hearing before me in the presence of Sri.J.V.Ramakrishna and V.V.Ravi Prasad learned Advocate for plaintiffs, and of Sri.L.Satyanarayana learned Advocate for the 2nd defendant and of Sri.K.S.Shankar, K.V.Lakshmi, learned advocate for D3 and of Sri.Badarinath & Madan Mohan learned Advocate for D4 and of Sri.Y.V.Satyanarayana learned Advocate for D4 and D1 died and D7 to D9 and D10 to 12 are exparte and having stood over for consideration to this day, this court doth order and :

D E C R E E

1.that the suit be and the same is hereby partly decreed by restraining the defendants 1 to 4 and 6 to 12 their men, agents, successor, servants, kith and kin, from making any alienations or making any further constructions in suit schedule property till the attain finality of partition suit i.e., O.S.No.755/1979 as well as restraining the 5th defendant from granting any permission/sanction for construction of building in any portion of the suit schedule property in the name of

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 82 - any persons till the attain fainality of partition suit i.e., O.S.No.755/1979 and partly dismissed i.e., granting mandatory injunction for demolished of construction already made in suit schedule property.

2.That the plaintiff are at liberty to take appropriate steps for at appropriate stage to meet their share in partition suit.

3.That there be no order as to costs.

// plaint schedule is here to attached //

Given under my hand and the seal of the court, this the 8th day of April, 2015.

Ist ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

MEMORANDUM OF COSTS

For Plaintiff: For Defendant No.3 :

Costs memo not filed. Stamp on vakalath: 2-00 Advocate fee : 786-00 Stamp on process : 100-00 Advocate fee : 2,500-00 Jr. Advocate fee: 500-00 Type charges : 100-00 ----------- Costs certified: 3,988-00 -----------

For Defendant No.4:

Stamp on vakalath : 2-00 Advocate fee : 2,500-00 Jr. Advocate fee : 500-00 Type charges : 100-00 -------------- Costs certified : 3,102-00 --------------

Ist AJCJ / VSP

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 83 -

Date: 8-4-2015: Judgement

Judgement Pronounced (vide

separate judgement) in the open court

In the result, suit is partly decreedbyrestrainingthe defendants 1 to 4 and 6 to 12 their men, agents, successor, servants, kith and kin, from making any alienations or making any further

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 84 - constructions in suit schedule property till the attain finality of partition suit i.e., O.S.No.755/1979 as well as restraining the 5th defendant from granting any permission/sanction for construction of building in any portion of the suit schedule property in the name of any persons till the attain fainality of partition suit i.e., O.S.No.755/1979 and partly dismissed i.e., granting mandatory injunction for demolished of construction already made in suit schedule property. However plaintiff are at liberty to take appropriate steps for at property stage to meet their share in partition suit.

IAJCJ/VSP

Date: 8-4-2015: Judgement

Judgement Pronounced (vide

separate judgement) in the open court.

In the result, suit dismissed without costs.

I AJCJ/VSP

OS.2988/2006 & O.S.1935/2006

- 85 -

I AJCJ/VSP

OS.270/2012

- 1 -

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM

PRESENT: SRI.LAKSHMI NARAYANA.B

I ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

Friday, the 30th day of January, 2015.

O.S.No.270/2012

Between:

Yarabala Govinda, S/o Narayana Rao,

Hindu, aged 38 years, residing at D.No.15-116/2,

F Block, Lakshmi Nagar, Gopalapatnam, Visakhapatnam.

...Plaintiff

And:

Smt.Rudraraju Venkata Ramana,

W/o Rameswara Bangaru Raju, Hindu, aged about 54 years, residing at D.No.45-32-4,

Balaji Hills, Visakhapatnam.

..Defendant

This suit is coming on 19-1-2015 for final hearing before me in the presence of Sri.G.Ramesh Naidu, learned Advocate for plaintiff and of Sri.N.Padmaja Naidu & E.Madhusidjam, learned Advocate for defendant and having stood over for consideration to this day, this court delivered the following:

J U D G E M E N T

Plaintiff filed this suit for permanent injunction restraining the defendants, her men and agents and whosoever acts on behalf of the defendant from ever interfering with the peaceful possession and enjoyment of plaintiff over the plaint schedule property and suit costs.

I AJCJ/VSP

OS.270/2012

- 2 -

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

The plaint schedule property is an extent of 110 square yards was purchased by plaintiff as such he is absolute owner of the suit schedule property.

The father of the plaintiff's vendor i.e., Pureddi China Pydayya along with Patcha

Venkatayya Chowdary jointly purchased property in an extent of Ac.1-85 ½ cents by way of registered sale deed dated 22-6-1971. Thereafter said property was partitioned by above said persons. Subsequently P.China Pydayya died intestate as such plaintiff's vendor and his family members got partitioned the property orally and out of the said oral partition, the plaintiff's vendor has got the suit schedule property towards his share. The plaintiff's vendor alienated the suit schedule property to the plaintiff and delivered possession to him. Since that plaintiff has been in possession and enjoyment of the suit schedule property.

3.On 8-3-2012 when the plaintiff on the duty, his wife was present in the suit schedule property and while making the construction of A.C. Sheet roofed shed in the suit schedule property. The husband of the defendant herein along with his henchmen came there and threatened the plaintiff's wife to stop constructions and made an attempt to demolish the constructions made by the plaintiff. On

I AJCJ/VSP

OS.270/2012

- 3 - that plaintiff's wife questioned the highhanded acts of the husband of the defendant and also asked his right on suit schedule property. Then the defendant's husband informed that his wife got the property an extent of 2750 square yards consisting of 11 plots, each admeasuring 250 square yards which was purchased under an agreement to sell from Pacha Venkatayya and she filed in O.S.106/1985 and got the property by way of registered sale deed executed by the Hon'ble Court III Addl. Senior Civil Judge's Court, Visakhapatnam. The defendant's husband also supplied copy of the sale deed along with the plan attached to the sale deed. The suit schedule property alleged to have been delivered to the defendant is entirely different and the defendant is no way concern with the suit schedule property, which belongs to the plaintiff. Though the plaintiff's explained the defendant as she has no right over the suit schedule property as the property delivered to her and the property purchased by plaintiff are entirely different. The defendant is claiming more than the extent of her document. In this respect defendant's husband also preferred the complaint th Town Police Station and after observed the against the plaintiff before the 5 documents of both parties, advised the defendant's husband not interfering the

I AJCJ/VSP

OS.270/2012

- 4 - plaintiff’s property and also advised to approach the civil court without creating any law and order problem. On 28-3-2012 again defendant along with their henchmen came to the schedule property and tried to interfere with the construction. So the plaintiff approached the court with above prayer.

4.After receipt of the suit summons defendant caused appearance and filed her written statement by denying the contents of plaint averments. The sum and su bstance of the wr itten stateme nt are as follows:-

The plaint schedule is not correct and also survey number showed in plaint schedule is also not correct. The boundary mentioned in the plaint schedule is not correct, the southern boundary of plaint schedule property is plot No.21. This defendant admitted that Pacha Venkataiah and one pureddy Chinna Paidayya jointly purchased an extent of Ac.1.85 cents on 22-6-1971 and thereafter partitioned the same between the said persons and each one get 92 ½ cents when converts into square yards it comes to 4486 square yards. Pachha

Venkataiah offered to sell his site of 92 ½ cents and the same was agreed by the defendant as such the agreement to sell dated 11-4-1982 was executed by

Pachha Venkatayya. The present schedule property is a part and parcel of the said site of 92 ½ cents which devolved on Pachha Venkatayya Chowdary.

I AJCJ/VSP

OS.270/2012

- 5 -

Pachha Venkatayya Chowdary failed to execute the required registered sale deed, then defendant obtained the same by nock the doors of III Addl. Senior

Civil Judge's Court, Visakhapatnam. Finally the court delivered the possession

of the said property after executed the registered sale deed by it. So the vendor of the plaintiff has nothing to do with the site covered by the plaint schedule much less over the site of 92½ cents. Plaintiff is never in the possession and enjoyment of the plaint schedule property. The alleged sale of plaintiff is mark believe story and it has been brought into existence in pursuance of a horrifying plan hatched up by the plaintiff and his vendor. So the sale deed transaction of sale referred it is shall not bind on the defendant.

5.The present suit hit by the doctrine of lis pendence as still dispute are pending before the Court of the Hon'ble II Addl. Senior Civil Judge,

Visakhapatnam as E.P.No.524/1999 arising out of O.S.106/1985. The defendant alienated the eastern side boundary site to one Smt.K.Revathi by executed the sale deed and the sale deed referred the western boundary was 30'feet road and it is in the possession of the defendant as such the plaint schedule property is nothing but a site earmarked for the road laid on the south

I AJCJ/VSP

OS.270/2012

- 6 - of the plot sold to Smt.K.Revathi, but the plaintiff’s sale deed shows wrongly on eastern side as the remaining site of Pachcha Venkayya. In the site of 92 ½ cents consists not only the site 2750 square yards and also site occupied for the road laid in the lay out. On 8-3-2012 while defendant was raising a temporary shed, plaintiff went there and picked up a quarrel with her, despite that he has no manner of right over the suit schedule property. Finally this defendant prays to dismiss the suit.

6.Basing on the pleadings of both the parties, the following issues framed by the court for trial:

1. Whether plaint schedule furnished by plaintiff is correct or not?

2. Whether Plaintiff is in la wful posses sion of plaint sched ule prop erty or not?

3. Whether plaintiff's possession was disturbed or interfer ed by defen dant or not?

4. Whether plaintif f is entitle for the relief of perm anent injunct ion as prayed for or not?

5. To what rel ief?

7.To substantiate respective versions, plaintiff himself examined as

P.W.1 and got marked the Ex.A1 to Ex.A19. On the other hand defendant

I AJCJ/VSP

OS.270/2012

- 7 - examined D.W.1 to D.W.4 but D.W.4 not turned up for cross-examination, therefore his evidence was eschewed. No documents were marked on behalf of the defendant.

8.Heard both sides and perused the material on record.

9. Plaintiff himself examined as P.W.1 and filed his examination in chief as affidavit, which is copy of his plaint. Through this witness Ex.A1 to Ex.A6 marked. In his cross-examination he deposed that his vendor acquired the property from his father. He denied that the suit schedule property not belongs to the father of his vendor. He admitted that the suit schedule property delivered to the defendant by the court as per the documents filed by him. He denied that court was ordered to remove the shed which is situated in plaint schedule property and delivered the site to the defendant as per Ex.A11 as well as delivery warrant enclosed to the Ex.A9 Proceedings. He denied that he never in possession and enjoyment of suit schedule property, in fact the defendants have been in possession and enjoyment of the suit schedule property from the date of delivery to him by the court under due process of law. He denied that having knowledge about the litigation pending before the court, he along with Purreddy

I AJCJ/VSP

OS.270/2012

- 8 -

Uma Maheswara Reddy brought the Original of Ex.A2 into existence only to grab the suit schedule property. He denied that even on to-day he is not in possession and enjoyment on suit schedule property.

10.To substantiate the case of defendant, defendant herself examined as D.W.1 and she filed her examination in chief as affidavit by corroborating with her written statement. In her cross-examination she deposed that they residing in their own house bearing No.49-54-59/3 from the last 30 years prior to that they resided in rented house. She further deposed that they purchased an extent of 92 cents from Patcha Venkatayya in her favour on 11-4-1982. She denied that present suit schedule property is not part and parcel of the property sold to them under agreement of sale. She admitted that she got filed the plan, attached to the Execution Petition schedule i.e., E.P.140/1992. She further deposed that to her knowledge no disputes arose or altercation took place at the time of delivering schedule property in E.P.No.140/1992 to her by the field Asst of the Court. She further deposed that she can't say the extent of the property delivered by the date but the total extent of 92 cents of land not delivered to her.

She admitted that the plane attached to the E.P.No.140/1982 prepared by them

I AJCJ/VSP

OS.270/2012

- 9 - and Patcha Venkatayya is no way concerned with it as he did not handover any plan in respect of 92 ½ cents of land. She further deposed that she cannot say whether Ex.A12 is the copy of the plan filed by her in E.P.No.140/1982 or not and her husband has knowledge to say the same. She further deposed that she did not know whether the boundary particulars correctly showed in sale deed executed by the court in her favour. She admitted that Field Asst. mentioned in said warrant as he delivered the property situated beside the Sanjay Gas agency. She admitted that Dr.Sailaja and her sister filed the petition before the

Hon'ble Senior Civil Judge's Court, Visakhapatnam challenging the delivery

warrant in E.P.140/92, but she did not know how much extent they are disputing.

She admitted that Santhilal Ravuju Patel and Khanji Patel raised objection to deliver the property by the Field Asst. while executing the delivery warrant in

E.P.No.140/1992. She denied that she did not know whether the site in which

Sanjay Gas Agency site was delivered to her on that day or not? She voluntary deposed that they and Sanjay gas agency people entered into settlement before

Lok Adalat, and in-turn they sold the site to them. She denied that except the property sold by them to Sailaja and another which is situated on the northern

I AJCJ/VSP

OS.270/2012

- 10 - side of Sanjay Gas Agency site the remaining plots not delivered by the Field

Asst. as per plan attached to the schedule property in E.P.No.140/1992. She denied that plaint schedule property is no way concern with an extent of 2750 square yards which is showed plan attached to E.P.No.140/1992. She further deposed that she did not know whether the I.Subbarao should be their western site boundary holder as per the particulars mentioned in the sale deed executed by the court in her favour as well as the description of the E.P. schedule property.

She further deposed that the road was already formed by the date of delivery of

E.P. Schedule property in E.P.No.140/1992. She denied that though the property which was sold by her to K.Revathi and Joseph even through she did not know the measurements mentioned in Ex.A5 and Ex.A6. She further deposed that out of 11 plots they sold one plot to one Kishore but she did not know whether the shed in plaint schedule property given by the plaintiff to one washer man or not. She admitted that she did not know anything about the property particulars since everything is look after by her husband. Witness admitted the existing features shown in photograph i.e., Ex.A17. She further deposed that she did not know whether they filed Execution petition as

I AJCJ/VSP

OS.270/2012

- 11 -

E.P.No.524/1999 for delivery of Execution Petition schedule property or

not.

11.The defendant's husband examined as D.W.2 and he filed his examination in chief as affidavit which is a copy of examination in chief of D.W.1.

In his cross-examination he denied that Patcha Venkatayya agreed to sell total 11 plots consisting of each plot 250 square yards of each plot to the defendant.

He admitted that on perused the Ex.A13 that Patcha Venkatayya agreed to sell 11 plots consisting of each plot 250 square yards out of 92 ½ cents of land. At this stage this witness voluntarily deposed that Patcha Venkatayya further agreed to handed over the said plots after formation of the lay out plots and including the formation of roads which comes to total extents of 92 ½ cents. He admitted that his vendor not executed regular sale deed infavour of the defendant for the entire 92 ½ cents of land. He denied that their vendor agreed to sell only 57 cents of land to them but not 92 ½ cents. He admitted that measurements of 11 plots i.e., length and width specifically not mentioned in the original of Ex.A13. He admitted that as per Ex.A3 western boundary holder of entire 11 plots is I.Subbarao. He further deposed that there is a road on the

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- 12 - western side of 11 plots as shown by them in the plan attached to the draft sale deed filed in E.P.No.140/1992. He denied that court not accept the plan filed in

E.P.No.140/1992. He further deposed that they did not filed any petition for

rectification of the sale deed executed by the court in respect of the western boundary as it is road but not property of I.Subbarao. He admitted that Ex.A13 not specifically mentioned as the 11 plots are situated side by the side as shown in the plan prepared by them. He further deposed that they did not show separate boundary particulars for the first 6 plots and the remaining plots even though there is a road intervening the said plots abutting to the 6th plot. He further deposed that on the eastern side for their 11 plots there is a layout of Sagi

Seetharama Raju which includes the 30 feet road. He further deposed that there is no 40 feet road on the eastern side of their 11 plots. He further deposed that they have been resident of house bearing D.No.49-54-15/3, since 1986. He admitted that they filed the caveat petition against the plaintiff stating that they are having title over the 2750 square yards of site out of 92 ½ cents. He further deposed that they sold approximately an extent of 350 square yards to the

Sanjay Gas Agency people. He further deposed that they sold an extent of 350

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- 13 - square yards to K.Revathi and Joseph consisting of 175 square yards to each plot. He deposed that the measurements of 175 square yards is 35'feet in length and he did not remember its width. He admitted that as per the sale deed executed by the court they are entitled to claim right for the site in a length of 70' feet but not beyond that. He further deposed that there is a road on southern side of plaint schedule property but not plot No.21. He further deposed that by the date of executing the delivery warrant by the field Asst of the court, DAV

Public School was in existence at the area of schedule property. He denied that they tried to occupy the plaint schedule property under the guise of the original of Ex.A3, so that plaintiff constrained to file this suit. He admitted that defendant i.e., D.W.1 did not pleaded in her written statement as she got constructed shed in the schedule property and she is in peaceful possession and enjoyment of the same. He admitted that one Sailaja and Padma Vathi purchased from the northern side of Sanjay Gas agency and it may be 600

Sq.yards. He admitted that as per the delivery report given by the Field Ass. in

E.P.No.140/1992 the plot situated on the northern side of Sanjay Gas Agency

delivered to them which is actual claiming by Sailaja and Padma Vathi. He

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- 14 - denied that except the plots situated on the northern side of the Sanjay Gas

Agency no other site was delivered to the defendant on day of executing the warrant in E.P.No.140/1992. He further deposed that they sold two plots to one

Bobbadhi Krishna Kishore out of land purchased from P.Venkatayya under two documents I.e, Ex.A18 and Ex.A19. He further deposed that as per Ex.A18 the northern boundary mentioned by the defendant as the remaining land belongs to

I.Subba Rao. He denied that the property purchased by the plaintiff is different with that of the property purchased from P.Venkatayya by defendant. He admitted that the defendant herein filed in E.P.No.142/1992 for registration of sale deed in her favour by defendant. He admitted that E.P.No.524/1999 filed by the defendant herein for the delivery of the decree schedule property of

O.S.106/1985.

12.One 3rd party by name Vundru Surya Joseph Raju examined as

D.W.3. He deposed that he purchased an extent of 175 square yards from defendant herein under registered sale deed dated 23-6-2005. He further deposed that thereafter he constructed a house which was allotted Door number is 15-22-34/3/2. He further deposed that since construction of house he is in

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- 15 - peaceful possession and enjoyment of land. He deposed that he knew the plaintiff from the 2012 as she trying to encroach into the suit schedule property.

He further deposed that defendant herein is in peaceful possession and enjoyment of suit schedule property from the date of handed over by the court

Amin to her. In his cross-examination he deposed that he has no personal knowledge prior to his sale construction taken in the year 2005. He further deposed that he did not know how much extent of site actually and physically delivered to defendant by the Field officer of the court. He further deposed that one Revathi's site is situated on his western side. He admitted that he purchased the property from the defendant under Ex.A5. He admitted that as per Ex.A5 western of boundary site of Revathi and thereafter there is a 30'feet road.

13.ISSU E No.1: -

The defendant pleaded that plaint schedule showed by the plaintiff in his plaint. The defendant further pleaded that on eastern and southern boundaries are not correct as eastern boundary owner of plaint schedule property is one

I.Revathi but not P.Venkatayya and on southern boundary of plaint schedule property is plot No.21. The plaintiff showed in his plaint eastern side remaining

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- 16 - part of plot No.20 belong to P.Venkatayya and southern site vacant site of

T.Padmavathi and Sailaja. In this respect the plaintiff who examined as P.W.1 he reiterated the contents of plaint as it is. In cross-examination of P.W.1 defendant not made any attempt either elicit the facts from the mouth of P.W.1 or at least the posed suggestion by denying the boundaries. The D.W.1 i.e., defendant filed her examination in chief as affidavit by reproducing the contents of her statement by stating the eastern boundary and southern boundary as noted above. In her cross-examination, she deposed that she sold the plots

K.Revathi and Joseph but cannot say the boundary particulars of said plots.

She denied that plaint schedule property is situated beyond the property sold by her to K.Revathi and Joseph as per the measurements mentioned in Ex.A5 and

Ex.A6. Moreover this witness in her cross-examination repeatedly deposed that the affairs her not only her property but also the court affairs observing by her husband. Her husband examined as D.W.2 he also filed examination in chief as we already observed above as a copy of examination in chief of D.W.1. In his cross-examination he clearly admitted that as per the Ex.A3 i.e., sale deed executed by III Addl. Senior Civil Judge's Court, Visakhapatnam, infavour of the

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- 17 - defendant, it shows western boundary for entire 11 plots is one I.Subbarao. He further deposed infact there is a road on the western side of 11 plots as showd by them in plan attached to the draft sale deed which submitted to this court along with E.P.No.140/1992. He further deposed that they did not filed any petition for rectification of sale deed executed by the court in respect of western boundary as it is a road but not the property I.Subba Rao. He further deposed that on the eastern side of their 11 plots there is a lay-out of Seetharama Raju which includes the 30'feet road. He further deposed that there is a 40'feet road on the eastern side of their 11 plots. He further deposed that they sold an extent of 350 square yards to K.Revathi and Joseph consisting of 170 square yards of each plot. He further deposed that there is a road on the southern side of plaint schedule property but not a plot No.21. Third party i.e., Joseph who purchased site from defendant under Ex.A5 examined as D.W.3. He admitted that plan attached to the sale deed and as per that plan western side of his property there is a property of Revathi and thereafter there is a road.

14.The plaintiff showed in plaint schedule that on eastern side remaining part of plot No.20 belongs to P.Venkatayya. As per plaint averments

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- 18 - and the contention of plaintiff, he purchased the property from Pureddy Uma

Maheswara Reddy, S/o Late China Pydayya. In this respect we shall observe which is an admitted fact by both parties that one P.China Pydayya and

P.Venkatayya both are jointly purchased an extent of Ac.1.85 ½ cents under the registered sale deed dated 22-6-1961. It is also admitted fact by both parties that

P.China Pydayya and P.Venkatayya orally partitioned said property by getting equal share i.e., 92 ½ cents by each one. But both parties not filed or not elicited on what directions those two persons partitioned the Ac.1.85 ½ cents as well as it boundaries. Ex.A1 referred as a agriculture land but both parties of the suit referred the plot Numbers. But both parties not stated anywhere, when the said land was divided as plots and the same was taken after get prior permission to lay plots and the same was taken and approved lay-out or not. The defendant agitating as the property belongs to them and the same was registered by III

Addl. Senior Civil Judge's Court, Visakhapatnam under Ex.A3 as these defendant filed suit for specific performance of sale agreement dated 11-4-1982 under O.S.No.106/1985. When we observe the sale agreement which marked as Ex.A13 clearly shows out of 92 ½ cents P.Venkatayya executed an

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- 19 - agreement to sell 11 plots and each plot shall consist 250 square yards and accept Rs.11,000/- as advance. In that documents does not reveals the plot numbers and also not reveal whether 92 ½ cents are divided as plots or not.

After the defendant herein get the decree in O.S.106/1988, in execution proceedings the court executed a regular sale deed as P.Venkatayya and his descendants not come forward to execute the regular sale deed. Plaintiff got mark the said sale deed as Ex.A3 in that documents also does not reveals the plot numbers and it boundaries. The Ex.A3 shows 2750 square yards was transferred in favour of the plaintiff and it boundaries are east side is lay out of

Seetha Rama Raju and Rama Chandra Raju, on the western side the land of

Icharapu. Subba Rao and Lakshminarayana, southern side lay out belongs to

Susarla Madhavasastri and northern side belongs to Simhachalam Devastanam.

As such the schedule of Ex.A3 does not reveals about the share of Pureddy

China Pydayya because P.Venkatayya and Pureddy China Pydayya got equal share in Ac.1.85 cents which purchased as jointly under Ex.A1. The entire evidence of defendants and plaintiffs does not reveal whether boundary owners showed in Ex.A3 get the property from P.China Pydayya or his heirs. Plaintiff

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- 20 - got marked the certified copy of petition in E.A.No.524/1999 in E.P.No.140/1992 in O.S.106/1985 ie.Ex.A12 also shows the schedule which showed in Ex.A3 but

Ex.A12 attached a plan copy by showing 11 plots. In this respect D.W.1 admitted that plan attached to the E.P.140/1992 prepared by them and

P.Venkatayya is no way concern with it. She further deposed that roads were already formed by the date of delivery of Execution Petition schedule property in

E.P.No.140/1992 but she did not speak when they got delivery. In this respect

D.W.2 we already observed about his admission about the plan attached to the

E.P.No.140/1992 even though court showed the I.Subba Rao as western

boundary but defendant not initiated any steps for rectification to his sale deed i.e., Ex.A3 best reason known to them only.

15. Plaintiff got the sale deed from P.Uma Maheswa Raddy who is the son of P.China Pydayya and he got the sale deed for plot No.20 in it eastern boundary shows remaining part of plot No.20 belongs to P.Venkatayya. As per

Ex.A13 P.Venkatayya intended to sell 11 plots, each plot consisting 250 square yards as such he intend to sell 2750 square yards site out of his 92 ½ cents. In this respect the D.W.2 voluntarily deposed that P.Venkatayya intended to sale

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- 21 - 2750 square yards after formation of the roads as such after formation of road

P.Venkatayya lost all the land as remaining land went for roads. But in this regard either plaintiff nor defendant not stated how much extent went for roads and what extent belongs to whom i.e., Puredyy China Pydayya and

P.Venkatayya. D.W.2 clearly admitted that eastern side road which is situated for their site is a part and parcel of layout of Sagi Seetha Rama Raju as such eastern side road to defendant is not a part of extent of P.Venkatayya or Pureddy

Chinapydayya. Defendant contention is on eastern side of plaint schedule property boundaries belongs to Revathi. When we observe the evidence of

D.W.3 he clearly admitted that to his western side Revathi's site is situated, on her western side i.e., eastern side of plaintiff there is a road. So the plaintiff eastern side directly not connected to Revathi's site as there is a road. Plaint shows remaining land of P.Venkatayya in plot No.20. In this regard either plaintiff or defendant not clarified whether plot No20 belongs to Pureddy China

Pydayya or P.Venkatayya. Even defendants claimed that entire site of

P.Venkatayya devolved on her, but Ex.A3 clearly shows 2750 square yards transferred infavour of defendant. Moreover we already observed the schedule

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- 22 - mentioned in Ex.A3 i.e, executed by the executant i.e., III Addl. Senior Civil

Judge's Court, Visakhapatnam as such defendant only got 2750 square yards

but not entire land of Patcha Venkatayya. In this suit an Advocate

Commissioner was appointed to localize the suit schedule property and he filed his report along with sketch sheets out of that sheet No.1 showed the plaintiff's property in green mark. The entire property of under Ex.A3 i.e., property of defendants showed as rectangular box with blue border. At the land of plaintiff as per Ex.A2 northern side 30' feet road, southern side showed the vacant site, western side DAV Public school and eastern side part of site under Ex.A3. But this sheet No.1 does not showed the road where as sheet No.2 sketch shows eastern side there is a 40' feet road to the plaintiff site. When we observed these sheets and evidence of D.W.3 there is a road after Revati's site on western side. As such in between Revathi's site to plaintiff's alleged site there is a road.

But plaintiffs not showed eastern side boundary as a road, only showed site belongs Patcha Venkatayya. Either the sale deed of plaintiffs i.e., Ex.A2 nor record not clarified how much an extent consisted in plot No.20. As per the sale deed i.e., Ex.A2 the plaintiff he purchased only 110 square yards. But the

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Advocate Commissioner measure the site with licensed surveyor showed the

Ex.A2 schedule property consisted 121.620 square yards on ground. An

Advocate Commissioner report also not clear after 121.620 any site is existed in plot No.20 or not. The plaintiff filed his objections on commissioner report. He only raised his objection with regard to an extent at that stage also he was not taken any steps to prove the actual extent of plot No.20. The plaintiff also raised objection that commissioner showed at para No.4 line 4 as Ex.A12 plan western side there is no road, in this regard plaintiff submitted that as

Ex.A12 plan there is a road on western side but no road on ground. If there is no road on western side in examination of D.W.3, D.W.3 deposed that on his western side Revathi's site is there, thereafter there is a road but such a version was not even denied by the plaintiff and the same was elicited in cross- examination only. As such with regard to the eastern side boundary of suit schedule property raised so many doubts and no party proved what is the actual boundaries to the suit schedule property particularly on eastern side.

16.The defendants pleaded that the southern side boundary of plaint schedule property is plot No.21. In this respect evidence affidavit of D.W.1 and

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D.W.2 is silent. The plaint shows the southern side boundary is vacant side of

Thalasala Padmavathi and Sailaja. As such either parties not agitated with regard to the southern boundary. The Advocate Commissioner shows in his report southern side in sheet No.1 as a vacant space. So there is no dispute with regard to the southern boundary. Accordingly this issued answered.

16IS SUE NO.2 :- The plaintiff pleaded that he is in possession and enjoyment of suit schedule property from the date of purchased by him i.e., on 17-12-2011 under Ex.A2. The defendant denied the possession of the plaintiff and taken a plea that plaint schedule property is part and parcel of site registered in their favour under Ex.A3. D.W.1 and D.W.2 clearly admitted that they are resided at Seethammadara in Door No.49-54-15/3. The plaintiff showed his residence in plaint at Door No.15-116/2, F-Block Lakshmi Nagar, Gopalapatnam.

The suit schedule property is situated at Buchiraju Palem Village Susarla colony.

So as per the pleadings of both parties they are not residing in suit schedule property. So either plaintiff or defendant not actually in possession. Both parties not filed any tax receipts to the suit schedule property. We already observed in issue No.1 that III Addl. Senior Civil Judge's Court, Visakhapatbam executed the

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- 25 - sale deed infavour of defendant for an extent of 2750 square yards but not entire 92 ½ cents stands on the name of Pacha Venkatayya and also observe the boundary particulars. By anticipating if in discrepancy may taken with regard to localize the suit schedule property, plaintiff got appointed the Advocate

Commissioner to localize the plaint schedule property basing on Ex.A2 and

Ex.A3. Accordingly Advocate Commissioner appointed and localized the schedule propriety. We clearly observed in Issue No.1 that an Advocate

Commissioner filed sheet No.1 by showing plaintiff's property in green mark as well as by showing the blue boundary to defendant's property as per Ex.A3. As such an Advocate Commissioner identified two properties basing on Ex.A2 and

Ex.A3. The defendant not filed any objections on Advocate Commissioner report.

So we can safely presume that there is two properties with distant boundaries.

The plea of the defendant is the suit schedule property is part and parcel of

Ex.A3 schedule property. It is clear by the report of Advocate Commissioner suit schedule property is not a integral part of Ex.A3 property. So the title stands in favour of plaintiff is deferent property to Ex.A3 schedule property. But the schedule showed by the plaintiff in plaint and Ex.A2 are not tailed with ground as

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- 26 - observed in issue No.1. Even Advocate Commissioner observed the excess land on ground, the same is not part of defendant land. So it is the burden of plaintiff to decide that excess land belongs to him or his vendor or any other person but not to the defendant. So we can safely conclude that plaintiff’s land and defendants lands are two deferent lands. Accordingly this issue answered.

17.IS SUE No .3: -

Plaintiff clearly pleaded that on 8-3-2012 when the plaintiff was on duty, his wife present in suit schedule property while making the construction of A.C.

Sheet roof shed. The defendant's husband and hench man came there and threatened the plaintiff's wife and stopped the construction. The plaintiff further shows again on 28-3-2012 defendant along with their hench men came to suit schedule property threatened and tried to interfered with the construction. On the other hand the defendant denied the version of the plaintiff and taken a plea that on 8-3-2012 while defendant raising a temporary shed with country wooden poles plaintiff went there and took up the quarrel with defendant. As such both parties pleaded as on 8-3-2012 while they are constructing the shed opposite party interfered. So it clearly shows the defendant interfered into the suit

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- 27 - schedule property and their contention is same as part of Ex.A3 schedule property. But we already observed in Issue No.2 that the property under Ex.A3 schedule is not included the shed where it showed by the Advocate commissioner. Even both parties pleaded as if they are raising shed in plant schedule property. D.W.2 in his cross-examination he deposed that as “ It is true

D.W.1 did not pleaded in the written statement as she got constructed shed in schedule property and she is in peaceful possession and enjoyment of the same”. The D.W.1 i.e., defendant in her cross-examination she deposed that things was managed by her husband. So D.W.2 well aware about the contents of pleadings. Even written statement reveals while defendant raising shed plaintiff obstructed on 8-3-2012 but D.W.2 admitted the suggestion posed by the plaintiff as observed above. So it clear that defendant not raised any shed in suit schedule property. So we can safely presume that shed which is situated and observed by Advocate Commissioner was raised by plaintiff. When we understand the facts from the evidence of both parties defendant causing obstruction to plaintiff. Accordingly this issue answered.

18.IS SUE N O.4 : -

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Even Issue Number 3 answered infavour of the plaintiff, but issue

Numbers.1 &2 not decided in any one favour. The suit schedule has vital role in equitable relief against the property. Even Advocate Commissioner observed the excess land on ground, extent prevail over the boundaries is settled law. But in the present suit eastern boundary of plaint schedule property is in doubt. So such a situation court is enable to direct restraining any person without having correct boundary to the suit schedule property. Therefore plaintiff not entitled permanent injunction for the present suit schedule property.

19.IS SUE No.5 :- As issue No.4 answered against the plaintiff suit is liable for dismiss as plaintiff seeking relief of permanent injunction only for suit schedule property. Even plaintiff seeking costs against the defendant but defendant version is as per their written statement suit schedule property is part and parcel of Ex.A3 schedule property. Moreover we observed about discrepancy with regard to the suit schedule as well as the documents filed by the plaintiff shows the nature of litigation. So in this situation granting costs to plaintiff is not justified.

20.In the result, suit is dismissed without costs.

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Dictated to the Personal Assistant, transcribed by him, corrected and pronounced by

me in the open court on the 30th day of February, 2015.

I ADDL. JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTI FF: DEFENDANT:

PW.1: Govinda D.W.1: Rudraraju Venkata Ramana

D.W.2: R.R.V.Bangaraju

D.W.3: V.Surya Joseph Raju

DOCUMENTS MARKED FOR

PLAINTI FF:

Ex.A1/22-3-1971: The certified copy of registered sale deed executed infavour of Putchaa Venkayya Chowdary and other

Ex.A2/17.12.2011: Certified copy of the registered sale deed in favour of

P.Uma Maheswara Reddy.

Ex.A3/13-11-1998: Certified copy of the registered sale deed executed on behalf of P.Venkatayya and others.

Ex.A4/: Certfied copy of the caveat petition filed by the defendant against plaintiff and other.

Ex.A5/23-6-2005:Verified copy of the registered sale deed executed infavour of Undur Surya Josef Raju by Smt.Rudraraju

Venkata Ramana.

Ex.A6/23-6-2005:Certified copy of the registered sale deed executed infavour of Smt.Kalidindi Revathi,l by Smt Rudraraju

Venkataramana.

Ex.A7/31-3-2012: Original market value certified issued by the Joint

Sub-registrar Gopalapatnam.

Ex.A8/--: Two positive photographs along with C.D.,

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Ex.A9/20-3-2006: Attested true copy of order in enquiry 214-A/2004 passed by the Hon'ble III Addl. Chief Metropolitan

Magistrate, Visakhapatnam.

Ex.A10/-: Certified copies of the Affidavit and petition and docket order in E.A.594/2003 in E.P.524/99 in O.S.106/1985.

Ex.A11/--: Certified copy of the delivery warrant along with the written endorsement regarding E.P.524/1999 in

O.S.106/1985.

Ex.A12/--: Certified copy of the E.P along with schedule and sketch in E.P.524/1999.

Ex.A13/11-4-1982: Certified copy of the E.P. Along with schedule and sketch in E.P.524/1999.

(Marked subject to its admissibility)

Ex.A14/: Rough sketch of suit schedule property got prepared and filed along with plaint.

Ex.A15/- : one positive photograph along with CD to show the physic features of suit schedule property as on to day.

Ex.A16/- :Electricity bills for the service connection No.008024 ( two in number) along with receipt.

Ex.A17/:Positive photograph (witness admitted)

Ex.A18/: Certified copy of sale deed exhibited by defendant in favour of B.Krishna Kishore

Ex.A19/ : Certified copy of sale deed exhibited by defendant in favour of B.Krishna Kishore.

DEFENDA NT:

Nil

Ist A.J.C.J.

V.S.P

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Date of Presentation :04.04.2012

Date of filing :04.04.2012

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM

PRESENT: SRI.LAKSHMI NARAYANA.B

I ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

Friday, the 30th day of January, 2015.

O.S.No.270/2012

Between:

Yarabala Govinda, S/o Narayana Rao,

Hindu, aged 38 years, residing at D.No.15-116/2,

F Block, Lakshmi Nagar, Gopalapatnam, Visakhapatnam.

...Plaintiff

And:

Smt.Rudraraju Venkata Ramana,

W/o Rameswara Bangaru Raju, Hindu, aged about 54 years, residing at D.No.45-32-4,

Balaji Hills, Visakhapatnam.

..Defendant

Plaintiff filed this suit for permanent injunction restraining the defendants, her men and agents and whosoever acts on behalf of the defendant from ever interfering with the peaceful possession and enjoyment of plaintiff over the plaint

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- 33 - schedule property and suit costs.

The value of the suit is Rs.20,000/- and a court fee of Rs.1386/- is paid thereon

U/Sec.26 (c) of A.P.C.F. and S.V.Act.

This suit is coming on 19-1-2015 for final hearing before me in the presence of

Sri.G.Ramesh Naidu, learned Advocate for plaintiff and of Sri.N.Padmaja Naidu &

E.Madhusidjam, learned Advocate for defendant and having stood over for consideration to this day, this court doth order and :

D E C R E E

1.that the suit be and the same is hereby dismissed 2.that there be no costs.

(copy of the schedule here to attached)

Given under my hand and the seal of the court, this the th day of 30th January, 2015.

Ist ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

MEMORANDUM OF COSTS

For Plaintiff: For Defendants:

Stamp on Vakalath: 3-00 Costs memo not filed.

Stamp on plaint : 1,386-00

Stamp on process : 50-00

Commissioner fee : 2,000-00

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Advocate fee : 1,500-00

Type charge :100-00 ----------------

Costs certified : 5,039-00 -----------------

Ist AJCJ / VSP

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE::VISAKHAPATNAM

PRESENT: SRI.LAKSHMI NARAYANA.B

I ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

Tuesday, the 27th day of January, 2015.

O.S.No.474/2013

Between:

Moola Ramu, S/o Late Suryanarayana,

C/o Sanapala Appa Rao,

Door No.39-17-34/8, Manyam,

Madhavadhara, Visakhapatnam.

Working as a mason at brick manufacturing unit,

Pusapatirega, Vizianagaram District.

...Plaintiff

And:

1. The Chairman- cum Managing Director,

Eastern Power Distribution Company of A.P.

Limited, Corporate Office,

P&T Colony, Seethammadhara,

Visakhapatnam.

2. M/s Lalam Constructions (P) Ltd.,

Office at Flat No.T-5, Samrat Enclave,

Opp. Century Club, Maharanipeta,

Visakhapatnam.

Represented by Lalam Srinivasa Rao (M.D.)

...Defendant

This suit is coming on 22.1.2015 for final hearing before me in the presence of

Sri.A.Bhaskara Rao, C.Prasada Rao, Balvinder Singh Maan, Advocates for plaintiff and of Sri.K.S.Shankar, Advocate for the first defendant and 2nd defendant is set exparte and having stood over for consideration to this day, this court delivered the following:

J U D G E M E N T

1.Suit filed for permanent injunction restraining the defendant their men from interfering with the suit schedule property and order to remove the current pole erected in the suit schedule property.

2.The br ief av erments of the pl aint are as follows:

Initially the plaintiff paid the court fee only for permanent injunction and subsequently he paid court fee for mandatory injunction and got amended original plaint after payment of the court fee. Except that there is no amendment in original plaint.

3.The facts of the plaint are, originally suit schedule property purchased by one Moola Ramanamma in the year 1957 and constructed a small hut and subsequently said Moola Ramanamma executed a gift deed in-favour of Moola Aruna, who is her sister in law, in the year 2008. Plaintiff purchased the suit schedule property from Moola Aruna and she executed a sale deed in-favour of the plaintiff. Since that plaintiff is enjoying the suit schedule property. While so, plaintiff filed the suit for same schedule property as O.S.No.472/2011, on the file of Hon'ble II Additional Senior Civil

Judge’s court at Visakhapatnam, for restrain the Greater Visakhapatnam Municipal

Corporation and second defendant herein. In that suit plaintiff alleged, that second defendant herein violated the norms for construction of five stored constructions. The said suit was dismissed by the trial court, on that plaintiff herein made the appeal as

A.S.No.231/2012, which is pending on the file of Additional District court – cum –

Special Court for the trial of S.C and S.T. Cases, Visakhapatnam. The plaintiff also filed writ pettion, which is pending before Hon'ble High Court of Judicature at

Hyderabad, against the Commissioner, Greater Visakhapatnam Municipal Corporation and Lalam Construction i.e., 2nd defendant herein to direct the first respondent to conduct survey of land in survey No.33,33/2 and 41 of Madhavadara Village at

Visakhapatnam with reference to title of both sides and VUDA Master plan.

4.The plaintiff is absolute owner and in peaceful possession and enjoyment of the suit schedule property. On 8-7-2013, he came to know that 2nd defendant and his agents, who have no title or any right, are erected electrical pole on the suit schedule property to connect the apartments belongs to 2nd defendant with the help of first defendant. Then plaintiff made complaint before ‘Current Adalat' held at first defendant's corporation office at Seethammadhara. However, first defendant did not choose to remove the current pole from the plaintiff's property. The defendants are making all the efforts to grab the suit schedule property with their henchmen by proclaiming that they would dispossess the plaintiff out of the suit schedule property.

Hence, the plaintiff approached the court with above prayer.

5.By denying the contents of plaint averments, first defendant filed written statement. The sum and su bstance of th e written stateme nt are as follo ws :-

First defendant department laid the poles for providing the new service connections to the consumers before laying the poles the site was inspected this defendant’s official along with Grater Visakhapatnam Municipal Corporation / Revenue officials. It is found that the 15 members of domestic service to Gurukrupa Residency were completed on 06-07-2013 and completed the work after received payment to lay 3 poles. The said poles were erected in the area of the Grater Visakhapatnam Municipal

Corporation site, which is besides the road and not the suit schedule property. After plaintiff raised objection, this defendant department requested to submit any documentary proof of ownership to the suit schedule property. On that plaintiff represented that the site besides the road belongs to him. But plaintiff has not produce any documents during the execution of the work and there was no complaint or objection by the plaintiff. So this defendant completed the work on 06-07-2013 and the plaintiff’s complaint was received on 09-07-2013. Plaintiff produced some documents

before the defendant officials, which is called as possessory sale agreement stand in

the name of plaintiff executed by Mula Appala Narasamma alias Aruna in respect of an extent of 122 square yards in Survey No.33, Patta No.5. In the said document M.Appala

Narasamma alias Aruna acquired the property under an unregistered Gift settlement deed dated 03-02-1989. As such, plaintiff produced unregistered documents, which will not confer any title. The plaintiff filed the suit with malafide intention with false and frivolous averments. Finally, defendant prayed to dismiss the suit with costs.

6.Basing on the pleadings of both the parties, the following issues framed by the court for trial:

1.Whether 1st defe ndant er ected any electric al pole in the site of pl aintiff as a lleg ed by pla intiff?

2. Whether plaintiff is entitled permanent in junctio n as pr ayed for?

3. Whether plai ntiff is entitle d to remov e the electrica l po le which erected by 1st defendant as pr ayed by plaintiff?

4. To what reli ef?

7. To substantiate the version of plaintiff's, plaintiff herself got examined as P.W.1 and examine three 3rd parties as P.W.2 to P.W.4 and got marked Ex.A1 to A11. To substantiate the case of defendants D.W.1 examined and no documents marked for defendant

8. ISSUE N o.1 & 3 : -

The plaintiff clearly pleaded that 2nd defendant with the help of first defendant erected electrical pole in the suit schedule property which belongs to him. But on the other hand defendant pleaded that before lay the poles, the site was inspected by the first defendant officials along with Greater Visakhapatnam Municipal Corporation/ revenue officials and laid the pole at the site of Greater Visakhapatnam Municipal

Corporation. As such defendant set up a defence that the electrical pole is situated in

Greater Visakhapatnam Municipal Corporation authorities site at the side of road but not at the site of plaintiff as he pleaded. So the plaintiff has burden to prove that the electrical pole which was erected by the first defendant is in his site, as well as he also has burden to establish his right on suit schedule property. P.W.1 i.e., plaintiff filed his examination in chief as a copy of his plaint. Wherein in his cross-examination he admitted that he had only sale agreement but not got sale deed from owner of the suit schedule property till today. He further deposed that suit schedule property consisted 120 Square yards. He denied that he has no right on suit schedule property. Even plaintiff got marked the Ex.A1 to Ex.A11 those documents not established that electrical pole is in plaint schedule property. Moreover plaintiff clearly admitted that he not obtained sale deed only has sale agreement i.e., Ex.A2. On perused the Ex.A2 it is recited as a sale deed by transferring all the rights of Moola Aruna Alias

Appalanarasamma in favour of plaintiff. Even first defendant disputed the title of the plaintiff but not claimed any right on plaint schedule property and also Moola Aruna

Alias Applanarasamma not on record. So on this it has no importance to decide title of the plaintiff because no one filed suit for declaration of title. Moreover, this suit filed for mandatory injunction and permanent injunction against the defendants.

9.When plaintiff-seeking removal of the electrical pole by alleging the same is in his site, but he was not placed any evidence as the said electrical pole is in his land. Moreover, plaintiff clearly pleaded in his plaint that he was filed writ petition as 27772/2012 against Commissioner of Greater Visakhapatnam Municipal Corporation authorities and Lalam Construction i.e., 2nd defendant herein to conduct the survey of the land in Survey Nos.33,33/2, and 41 of Madhavadhara Village. On perused the plaint schedule property, the same was situated in Survey No.33. However, plaintiff or defendant not elicited or brought on the record about the stage of said writ petition.

Whatever it maybe plaintiff filed writ petition to survey the land, which is also included suit schedule property. Therefore, it clearly established that there is a disputed with regard to plaint schedule property as well as the property situated in Survey No.33/2 and 41 as plaintiff filed a writ petition. The plaintiff himself is not in clear position about the land situated in Survey No.33, so that only he filed a writ petition. In this case, also even plaintiff examined as two more 3rd parties as P.W.2 and P.W.3 who spoke about the Ex.A2. As such, plaintiff failed to show that first defendant erected electrical pole in his site i.e., plaint schedule property, in spite of defendant clearly pleaded that they erected the pole at Greater Visakhapatnam Municipal Corporation site. When plaintiff failed to prove that alleged electrical pole is not in his site i.e., suit schedule property he cannot entitled to remove of the electrical pole. Accordingly, these issues answered against the plaintiff.

10.ISSUE NO.2:-

The plaintiff is seeking permanent injunction against the defendant. First defendant is the chairman cum Managing Director, Eastern Power Distribution Company of Andhra Pradesh Limited and 2nd defendant is M/s Lalam Construction (P) Ltd.,

Represented by Lalam Srinivasa Rao (M.D.). Plaintiff pleaded that 2nd defendant trying to grab the property by encroaching into peaceful possession and enjoyment of plaint schedule property. But first defendant is state owned public Limited company and the 2nd defendant is construction company. Moreover as per the pleadings of first defendant, it is clear that apartment constructed as a Gurukrupa Apartments by 2nd defendant. On that first defendant collected necessary charges and given supply of electricity. In such a situation plaintiff not showed any bonafidies how they interfering into his peaceful possession and enjoyment. Moreover we already observed in above that the writ petition is pending for survey the land in Survey No.33 i.e., suit schedule property, 33/2 and 41. Therefore, the plaintiff has scope to get appropriate relief in his writ petition also. Even the plaintiff examined P.W.1 to 3 they did not speak how the defendant disturbing or obstructing plaintiff's possession and enjoyment of plaint schedule property. The entire pleading of plaintiff and his examination in chief is only established that first defendant erected electrical pole. In this regard, we already discussed above except that plaintiff fail to established the prima-facie case and he has threat to enjoy his property. So we can safely conclude that plaintiff fail to show prima- facie case and irreparable loss to get equitable relief in his favour. Accordingly, this issue answered against the plaintiff.

11.In the result suit is dismissed without costs.

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

by me in the open court on the 27th day of January, 2015.

I ADDL. JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFFS: DEFENDANTS:

PW.1: Moola RamuD.W.1: Asst. Engineer, N.S.T.L. Section

P.W.2: Gurubilli Venkata Ratnam

P.W.3: Nambala Lalitha Kumari

DOCUMENTS MARKED FOR

PLAINTIFFS:

Ex.A1/: The certified copy of rough sketch filed in O.S.472/2011.

Ex.A2/29-12-2008: The certified copy of sale deed

Ex.A3/13-12-2000: The Certified copy of receipt

Ex.A4/30-6-2011: The original no dues certificate issued by A.P.E.P.D.C.

Ex.A5: The office copy of grounds of Appeal in A.S.No.231/2012

Ex.A6/: The certified copy of photo of old hut situated in suit schedule property.

Ex.A7/: The certified copy of photos filed in O.S.No.472/2011

Ex.A8/ : The complaint of plaintiff to E.P.D.C. And acknowledged by

EPDC,

Ex.A9/ : The photograph with C.D.

Ex.A10/15-7-2012: The office copy of complaint to Greater

Visakhapatnam Municipal Corporation Commissioner

Ex.A11/ :The official memorandum issued by District Court and letter from Superintendent, I Addl. Junior Civil Judge's

Court, Visakhapatnam issued under R.T.A. Act, dt.7-4-2014

DOCUMENTS MARKED FOR

DEFENDANTS: Nil

Ist A.J.C.J.

V.S.P

Date of Presentation :15.07.2013 Date of filing:15.07.2013

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM

PRESENT: SRI.LAKSHMI NARAYANA.B

I ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

Tuesday, the 27th day of January, 2015.

O.S. No.47 4/201 3

Between: Moola Ramu, S/o Late Suryanarayana, C/o Sanapala Appa Rao, Door No.39-17-34/8, Manyam, Madhavadhara, Visakhapatnam. Working as a mason at brick manufacturing unit, Pusapatirega, Vizianagaram District.

...Plaintiff

And:

1. The Chairman- cum Managing Director, Eastern Power Distribution Company of A.P. Limited, Corporate Office, P&T Colony, Seethammadhara, Visakhapatnam.

2. M/s Lalam Constructions (P) Ltd., Office at Flat No.T-5, Samrat Enclave, Opp. Century Club, Maharanipeta, Visakhapatnam. Represented by Lalam Srinivasa Rao (M.D.)

...Defendant

Suit filed for permanent injunction restraining the defendant their men from interfering with the suit schedule property and order to remove the current pole erected in the suit schedule property.

The value of the suit is Rs.10,000/- and a court fee of Rs.786/- is paid thereon U/Sec.26

(c) r/w Art.1(b) and (c) of A.P.C.F. and S.V.Act.

This suit is coming on 22.1.2015 for final hearing before me in the presence of Sri.A.Bhaskara Rao, C.Prasada Rao, Balvinder Singh Maan, Advocates for plaintiff and of Sri.K.S.Shankar, Advocate for the first defendant and 2nd defendant is set exparte and having stood over for consideration to this day, this court doth order and :

D E C R E E

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

2.That there be no costs.

// plaint schedule is here to attached //

Given under my hand and the seal of the court, this the 27th day of January, 2015.

Ist ADDL. JUNIOR CIVIL JUDGE

VISAKHAPATNAM

MEMORANDUM OF COSTS

For Plaintiff: For Defendants:

Costs memo not filed Stamp on vakalath: 2.00

Stamp on plaint : 786.00

Stamp on process : 78.00

Advocate fee : 500-00 ----------------

Costs certified : 1,366-00 ----------------

Ist AJCJ / VSP

Date: 27-1-2015: Judgement

JudgementPronounced(vide

separate judgement) in the open court.

In the result, suit is dismissed without costs.

I

AJCJ/VSP

In the result, plaintiff's claim is dismissed without costs and counter claim is decreed with costs by directing the plaintiff to vacate the suit schedule premises within 3 months from the date of decree, other wise defendant is at liberty to proceed as per law, and also awarded damages to defendant for an amount of Rs.15,000/- per month from the date of 1-5-2013 to till plaintiff vacate the suit schedule property.

IAJCJ/VSP

Date of Presentation:29-10-2012 Date of Filing: 08-08-2013

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE;VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge, Visakhapatnam. Monday, this the 19th day of January, 2015

O.S.No.533/2013

Between: R.K.Residency Flat Owners Welfare Association, Regd. No. 57 of 2012, Rep. by its Secretary, Rachakonda Satyanarayana Murthy, S/o Venkata Suryanarayana, Hindu, age 61 years, residing at Door No.15-18-19, Flat No.GF.1, R.K.Residency, Maharanipeta, Visakhapatnam. Plaintiff. And:

1.Kalidindi Rama Krishnam Raju, S/oSubba Raju,age about 84 years, Proprietor M/s.Vijaya Builders, D.No.15-18-19/12, Flat No.G.R.K.Residencyl, Maharanipeta, Visakhapatnam. 2.Kalidindi Sree Ramanjaneya Raju, S/o Rama Krishnan raju, age 58 ykears, Proprietor, M/s Vijaya Builders, D.No.4-48-10/A, Lawsonsday colony, Visakhapatnam. ( the 2nd defendant added as legal heir of the 1st defendant as per the Orders of the

Honourable court vide I.A.No.145/2014, dated 12-08-2014)

..Defendant.

Suit for recovery of amount of Rs.30,960/- with subsequent interest thereon at the rate of 24 % per annum from the date of the suit till realization and for costs of the suit.

Value of the suit for the purpose of court fee and Jurisdiction is Rs.1,846/- and a court fee of Rs.30,960/- is paid under Sec.20 Sch.I Art.I (b) & (c) of A.P.C.F. and S.V.Act.

This Suit coming on this day for final disposal before me in the presence of Smt. P.Anuradha, Advocate for Plaintiff and of Sri D.Dakshina Murthy, Advocate for defendant No.2 and Defendant No.1 died and having stood over till this day for consideration this court doth order and :

DECREE

1)that the suit be and the same is here by dismissed for default;

2)that there be no order as to costs;

Given under my hand and the seal of this court, this the 19thday of January, 2015.

I ADDITIONAL JUNIOR CIVILJUDGE

VISAKHAPATNAM

MEMORANDUM OF COSTS

FOR PLAINTIFF: FOR DEFENDANT:

No costs memo is filed on either side.

IAJCJ/VSP

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE;VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge, Visakhapatnam. Monday, this the 19th day of January, 2015

O.S.No.533/2013

Between: R.K.Residency Flat Owners Welfare Association, Regd. No. 57 of 2012, Rep. by its Secretary, Rachakonda Satyanarayana Murthy, S/o Venkata Suryanarayana, Hindu, age 61 years, residing at Door No.15-18-19, Flat No.GF.1, R.K.Residency, Maharanipeta, Visakhapatnam. Plaintiff. And:

3.Kalidindi Rama Krishnam Raju, S/oSubba Raju,age about 84 years, Proprietor M/s.Vijaya Builders, D.No.15-18-19/12, Flat No.G.R.K.Residencyl, Maharanipeta, Visakhapatnam. 4.Kalidindi Sree Ramanjaneya Raju, S/o Rama Krishnan raju, age 58 ykears, Proprietor, M/s Vijaya Builders, D.No.4-48-10/A, Lawsonsday colony, Visakhapatnam. ( the 2nd defendant added as legal heir of the 1st defendant as per the Orders of the

Honourable court vide I.A.No.145/2014, dated 12-08-2014)

..Defendant.

This Suit coming on this day for final hearing before me in the presence of Smt. P.Anuradha, Advocate for Plaintiff and of Sri D.Dakshina Murthy, Advocate for defendant No.2 and Defendant No.1 died and having stood over till this day for consideration this court delivered the following:

JUDGMENT

Suit for recovery of amount of Rs.30,960/- with subsequent interest thereon at the rate of 24 % per annum from the date of the suit till realization and for costs of the suit.

Plaintiff called absent and no representation even observed till 3.10 P.M. This matter stands condition for plaintiff evidence after explanatory costs so it shows plaintiff get sufficient time and opportunity to adduce evidence but he failed to comply the condition. Hence suit dismissed for default.

Pronounced by me in open court, this the 19th day of January, 2015.

I ADDITIONAL JUNIOR CIVILJUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

Nil

IAJCJ/VSP

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE:VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge, Visakhapatnam. Monday, this the 19th day of January, 2015

O.S.No.575/2014

Between: Thadala Nagasaibabu,S/o Arjuna, Hindu, age 43 years, residing at D.No.51-8- 40/88,K.R.M.Colony, Seethammadhara, Behind Eenadu office, Visakhapatnam.

.. Plaintiff.

And:

5.Aandra Subbamma,D/o Pichaiah @ 'Thikkayya, Hindu, age 41 years, working as Scavanger, Emp.code No.072-230, Government Degree college for Women, Chirala Village & Mandal, Prakasam District. 6.Kaati John Moses, S/o Sahayam,Christian, age 41 years, working as Watch Man, Government Degree college for Women, Chirala village & Mandal, Prakasam District.

..Defendant.

This Suit coming on this day for final hearing before me in the presence of Sri.B.Simhachalam, Advocate for Plaintiff and of Sri G.Rameshbabu, Advocate for defendants and having stood over till this day for consideration this court delivered the following:

JUDGMENT

Suit filed by the plaintiff against the defendant for recovery of a sum of Rs.98,653/- being the

principal and interest due on a promissory note dated 30-12-2012 for Rs.70,000/- executed by

the defendant in favour of the plaintiff agreeing to repay the same with subsequent interest at the rate of Rs.24 % per annum from the date of the suit till the date of realization and for costs of the suit.

I.A.No.437/14 dismissed as cost not paid and also not file written statement statuary period lapsed to file written statement by defendant. Hence on considering the pleadings and document filed by plaintiff . Judgment pronounced under Order VIII R.10 of C.P.C.

In the result suit is decreed with costs for an amount of Rs.98,653/- with subsequent interest at the rate of 12% per annum on principal sum of Rs.70,000/- (Rupees seventy thousand only) from the date of filing of this suit i.e. 15-9-2014 to till the realization of decree amount.

Pronounced by me in open court, this the 19th day of January, 2015.

I ADDITIONAL JUNIOR CIVILJUDGE

VISAKHAPATNAM

APPENDIX OF EVIDENCE

Nil

IAJCJ/VSP

Date of Presentation: 15-9-2014 Date of Filing: 18-9-2014

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE;VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge,

Visakhapatnam. Monday, this the 19th day of January, 2015

O.S.No.575/2014

Between: Thadala Nagasaibabu,S/o Arjuna, Hindu, age 43 years, residing at D.No.51-8- 40/88,K.R.M.Colony, Seethammadhara, Behind Eenadu office, Visakhapatnam.

.. Plaintiff.

And:

7.Aandra Subbamma,D/o Pichaiah @ 'Thikkayya, Hindu, age 41 years, working as Scavanger, Emp.code No.072-230, Government Degree college for Women, Chirala Village & Mandal, Prakasam District. 8.Kaati John Moses, S/o Sahayam,Christian, age 41 years, working as Watch Man, Government Degree college for Women, Chirala village & Mandal, Prakasam District.

..Defendant.

Suit filed by the plaintiff against the defendant for recovery of a sum of Rs.98,653/- being the

principal and interest due on a promissory note dated 30-12-2012 for Rs.70,000/- executed by

the defendant in favour of the plaintiff agreeing to repay the same with subsequent interest at the rate of Rs.24 % per annum from the date of the suit till the date of realization and for costs of the suit.

Value of the suit for the purpose of court fee and Jurisdiction is Rs.98,653/- and a court fee of Rs.3426/- is paid under Sec.20 Sch.I Art.I (b) & (c) of A.P.C.F. and S.V.Act.

This Suit coming on this day for final disposal before me in the presence of Sri.B.Simhachalam, Advocate for Plaintiff and of Sri G.Rameshbabu, Advocate for defendants and having stood over till this day for consideration this court doth order and:

DECREE

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

2)that the defendant do pay to the plaintiff a sum of Rs.98,653/- with subsequent interest @ Rs.12% p.a on principal sum of Rs.70,000/- from the date of filing of the suit i.e.15-9-2014 to till the realization of decree amount;

3)that the defendant do pay to the plaintiff a sum of Rs. 5958-00 towards costs of the suit.

Given under my hand and the seal of this court, this the 19th day of January, 2015.

I ADDITIONAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM

MEMORANDUM OF COSTS

FOR PLAINTIFF: FOR DEFENDANT: Stamp on Vakalat 2-00 Stamp on Plaint 3426-00 Stamp on Process 100-00 Typing/writing charges 100-00

Advocate fees 2330-00 Costs allowed. Rs 5958-00

IAJCJ/VSP

Date of Presentation: 20-8-2014 Date of Filing: 30-8-2014

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE;VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge, Visakhapatnam. Monday, this the 19th day of January, 2015

O.S.No.510/2014

Between: Koidala Rama, W/o Swamy, Hindu, age 35 years, residing at D.No.33-14-55, Allipuram,

Visakhapatnam-4. .. Plaintiff.

And:

Chaganti Srinivasa Rao,S/o Veeraju, Hindu, age 39 years, residing at Flat No.106, Neelima Apartments, NAD Kotha Road,Visakhapatnam.

..Defendant.

Suit filed by the plaintiff against the defendant for recovery of a sum of Rs.49,600/- being the

principal and interest due on a promissory note dated 01-06-2013 for Rs.40,000/- executed by the

defendant in favour of the plaintiff agreeing to repay the same with subsequent interest at the rate of Rs.24 % per annum from the date of the suit till the date of realization and for costs of the suit.

Value of the suit for the purpose of court fee and Jurisdiction is Rs.49,600/- and a court fee of Rs.2386/- is paid under Sec.20 Sch.I Art.I (b) & (c) of A.P.C.F. and S.V.Act.

This Suit coming on this day for final disposal before me in the presence of Sri.K.M.V.N Swamy, Advocate for Plaintiff and of Sri B.Srinivasarao, Advocate for defendant . Defendant called absent and having stood over till this day for consideration this court doth order and:

DECREE

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

5)that the defendant do pay to the plaintiff a sum of Rs.49,600/- with future interest @ Rs.12% p.a on principal sum of Rs.40,000/- from the date of filing of the suit i.e.20-8-2014 to till the realization of decree amount;

6)that the defendant do pay to the plaintiff a sum of Rs.3,848-00 towards costs of the suit.

Given under my hand and the seal of this court, this the 19th day of January, 2015.

I ADDITIONAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM

MEMORANDUM OF COSTS

FOR PLAINTIFF: FOR DEFENDANT:

Stamp on Vakalat 3-00 Stamp on Plaint 2,386-00 Stamp on Process 63-00 Typing/writing charges 100-00 Advocate fees 1,296-00 Costs allowed. Rs 3,848-00

IAJCJ/VSP

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE;VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge, Visakhapatnam. Monday, this the 19th day of January, 2015

O.S.No.510/2014

Between: Koidala Rama, W/o Swamy, Hindu, age 35 years, residing at D.No.33-14-55, Allipuram,

Visakhapatnam-4. .. Plaintiff.

And:

Chaganti Srinivasa Rao,S/o Veeraju, Hindu, age 39 years, residing at Flat No.106, Neelima Apartments, NAD Kotha Road,Visakhapatnam.

..Defendant.

This Suit coming on this day for final hearing before me in the presence of Sri.K.M.V.N Swamy, Advocate for Plaintiff and of Sri B.Srinivasarao, Advocate for defendant . Defendant called absent and having stood over till this day for consideration this court delivered the following:

JUDGMENT

Suit filed by the plaintiff against the defendant for recovery of a sum of Rs.49,600/- being the

principal and interest due on a promissory note dated 01-06-2013 for Rs.40,000/- executed by the

defendant in favour of the plaintiff agreeing to repay the same with subsequent interest at the rate of Rs.24 % per annum from the date of the suit till the date of realization and for costs of the suit. Defendant called absent and no representation even observed till 3.40 P.M. Written statement also not filed. Statuary period lapsed for filing written statement . Hence on considering the pleadings and document filed by the plaintiff. Judgment pronounced under Order VIII R.10 CPC.

In the result suit is decreed for an amount of Rs.49,600/- with future interest at rate of Rs12% p.a. On principal sum of Rs.40,000/- from the date of filing of the suit i.e. 20-8-2014 to till the realization of decree amount.

Pronounced by me in open court,this the 19th day of January, 2015.

I ADDITIONAL JUNIOR

CIVIL JUDGE

VISAKHAPA

TNAM

APPENDIX OF EVIDENCE

Nil IAJCJ/VSP

Date of Presentation:21-1-2015 Date of Filing:22-1-2015

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE;VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge, Visakhapatnam.

Wednesday, this the 28th day of January, 2015 E.A.No.20 /2015 in E.P.No.145 /2010

Between:

Nunela Appa Rao, S/o Late Pakeeru, Hindu, age 63 years, residing at D.No.36-93-270/1, Ward No.37, Indira Nagar colony-5, Kancharapalem, Visakhapatnam.

..Petitioner/J.Dr

And: B.Ramulamma,W/oRamana, Hindu, age 53 years, residing at D.No.38- 23-76, Indiranagar Colony, R & B Office, N.H.5 Visakhapatnam.

..Respondent/DHr.

Petition filed under order XVIII Rule 17 r/w Section 151 of C.P.C. Petitioner/J.Dr prays to recall P.W.1 and 2 for cross examination.

A court fee of Re.1/- is paid on the petition.

This petition coming on this day for final disposal before me in the presence of Sri.S.S.Chalam,, Advocate for Petitioner/J.Dr and Sri K.Adibabu, Advocate for Respondent/DHr and having stood over till this day for consideration this court doth order and:

DECREETAL ORDER

1.that the petition be and the same is hereby dismissed; 2.that there be no costs;

Given under my hand and the seal of this court, this the 28th day of January,2015.

I ADDITIONAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM

MEMORANDUM OF COSTS

FOR PETITIONER/JDR: FOR RESPONDENT/DHR;

No costs memo is filed on either side.

IAJCJ/VSP

Date of Presentation:21-1-2015 Date of Filing:22-1-2015

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE;VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge, Visakhapatnam.

Wednesday, this the 28th day of January, 2015 E.A.No.21 /2015 in E.P.No.145 /2010

Between: Nunela Appa Rao, S/o Late Pakeeru, Hindu, age 63 years, residing at D.No.36-93-270/1, Ward No.37, Indira Nagar colony-5, Kancharapalem, Visakhapatnam.

..Petitioner/J.Dr

And:

B.Ramulamma,W/oRamana, Hindu, age 53 years, residing at D.No.38- 23-76, Indiranagar Colony, R & B Office, N.H.5 Visakhapatnam.

..Respondent/DHr.

Petition filed under order Section 151 of C.P.C.Petitioner/J.Dr prays to receive the additional counter in E.P.145/2010.

A court fee of Re.1/- is paid on the petition.

This petition coming on this day for final disposal before me in the presence of Sri.S.S.Chalam,, Advocate for Petitioner/J.Dr and Sri K.Adibabu, Advocate for Respondent/DHr and having stood over till this day for consideration this court doth order and:

DECREETAL ORDER

3.that the petition be and the same is hereby dismissed; 4.that there be no costs;

Given under my hand and the seal of this court, this the 28th day of January,2015.

I ADDITIONAL JUNIOR CIVIL

JUDGE

VISAKHAPATNAM

MEMORANDUM OF COSTS

FOR PETITIONER/JDR: FOR RESPONDENT/DHR;

No costs memo is filed on either side.

IAJCJ/VSP

Date of Presentation:21-1-2015 Date of Filing:22-1-2015

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE;VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge, Visakhapatnam.

Wednesday, this the 28th day of January, 2015 E.A.No.22 /2015 In E.P.No.145 /2010

Between: Nunela Appa Rao, S/o Late Pakeeru, Hindu, age 63 years, residing at D.No.36-93-270/1, Ward No.37, Indira Nagar colony-5, Kancharapalem, Visakhapatnam.

..Petitioner/J.Dr

And:

B.Ramulamma,W/oRamana, Hindu, age 53 years, residing at D.No.38- 23-76, Indiranagar Colony, R & B Office, N.H.5 Visakhapatnam.

..Respondent/DHr.

This petition coming on this day for final disposal before me in the presence of Sri.S.S.Chalam,, Advocate for Petitioner/J.Dr and Sri K.Adibabu,

Advocate for Respondent/DHr and having stood over till this day for consideration this court doth order and:

Petition filed under order VIII Rule 1(3) r/w Section 151 of C.P.C.

Petitioner/J.Dr prays to receive documents by condoning the delay.

A court fee of Re.1/- is paid on the petition.

DECREETAL ORDER

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

2. that there be no costs;

Given under my hand and the seal of this court, this the 28th day of January,2015.

I ADDITIONAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM

MEMORANDUM OF COSTS

FOR PETITIONER/JDR: FOR RESPONDENT/DHR;

No costs memo is filed on either side.

IAJCJ/VSP

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE;VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge, Visakhapatnam.

Wednesday, this the 28th day of January, 2015 E.A.No.22 /2015 In E.P.No.145 /2010

Between: Nunela Appa Rao, S/o Late Pakeeru, Hindu, age 63 years, residing at D.No.36-93-270/1, Ward No.37, Indira Nagar colony-5, Kancharapalem, Visakhapatnam.

..Petitioner/J.Dr

And: B.Ramulamma,W/oRamana, Hindu, age 53 years, residing at D.No.38- 23-76, Indiranagar Colony, R & B Office, N.H.5 Visakhapatnam..

..Respondent/DHr.

This petition coming on this day for final hearing before me in the presence of Sri.S.S.Chalam,, Advocate for Petitioner/J.Dr and Sri K.Adibabu,

Advocate for Respondent/DHr and having stood over till this day for consideration this court delivered the following:

DOCKET ORDER

Counter filed by respondent.

Heard both sides.

The learned counsel for petitioner submitted that petitioner /J.Dr operated bypass surgery so in that regard petitioner filed Medical document which are intended to mark on his behalf. So he prayed to allow the petition.

On the other hand the learned counsel for respondent submitted that the petitioner filed the documents belongs to 2012 onwards, but petitioner filed the present Execution petition as J.Dr disobeyed the decree and made obstruction in year 2010. So document belongs to 2012 onwards are no way concerned.

On perused the record present Execution petition filed by stating J.Dr and his men caused obstruction for construction on 20-6-2010 by disobeying the decree passed against him. So in the present Execution petition triable issue is whether J.Dr caused any obstruction by violating the directions of decree on 20-6-2010. In such a situation the documents filed by the petitioner clearly showing, the same is belongs to after 30-8-2012.

Moreover these documents are medical prescriptions and reports of laboratories but not a certificate issued by the Doctor. So on consider the above observation the documents filed by the petitioner is no way concerned to present petition.

In the result, petition dismissed without costs.

Pronounced by me in open court, this the 28th day of January,2015.

I ADDITIONAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE;VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge, Visakhapatnam. Wednesday, this the 28th day of January, 2015 E.A.No.21 /2015 in E.P.No.145 /2010

Between: Nunela Appa Rao, S/o Late Pakeeru, Hindu, age 63 years, residing at D.No.36-93-270/1, Ward No.37, Indira Nagar colony-5, Kancharapalem, Visakhapatnam.

..Petitioner/J.Dr

And: B.Ramulamma,W/oRamana, Hindu, age 53 years, residing at D.No.38- 23-76, Indiranagar Colony, R & B Office, N.H.5 Visakhapatnam..

..Respondent/DHr.

This petition coming on this day for final hearing before me in the presence of Sri.S.S.Chalam,, Advocate for Petitioner/J.Dr and Sri K.Adibabu, Advocate for Respondent/DHr and having stood over till this day for consideration this court delivered the following:

DOCKET ORDER

Counter filed by respondent.

Heard both sides.

The learned counsel for petitioner submitted that the petitioner/J.Dr changed his counsel after that petitioner is compelled to file present petition to receive additional counter to substantiate his case. He further submits that the earlier counsel not filed the counter by covering all aspects. He further argued that petitioner / J.Dr filed document petition to receive the document, on the light of those documents also petitioner forced to file this petition. Finally he prayed to receive the additional counter.

On the other hand the learned counsel for respondent/D.Hr submits that the documents filed by petitioner is no way concern for the present issue. He further submits that petitioner filed his counter long back and moreover present additional counter also not concern to the present issues.

So he prayed to dismiss the petition.

On perused the record document petition i.e., E.A.22/2015 dismissed on merits. On consider the observation made in E.A.No.22/2015 as the documents not concerned to present issues. Moreover the present execution petition filed on 29-6-2010 on that petitioner filed his counter on6-10- 2010. But petitioner filing this petition to receive the additional counter with denials and stating his illness. If this petition allow petition proceedings taken back to the stage of counter of petitioner/J.Dr. So it clearly shows petitioner filed this petition at belated stage. Moreover in this petition petitioner went up to Hon'ble High Court by filing C.R.P.3467 /2011.

So it clearly shows petitioner well aware about his pleadings. So changing of earlier counsel is not forced to file this petition. The Hon'ble High Court directed to dispose this petition within 4 months in the above said revision petition at that stage also petitioner not initiated any steps to file additional counter. Presently main petition stands for petitioner/J.Dr evidence after closed the respondent/D.Hr evidence. So it clearly shows petitioner filed this petition at belated stage. As such I was not found any merits in the petition.

In the result, petition dismissed without costs.

Pronounced by me in open court, this the 28th day of January,2015.

I ADDITIONAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM

IN THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE;VISAKHAPATNAM

Present: Sri B.Lakshmi Narayana., Ist Addl. Junior Civil Judge, Visakhapatnam.

Wednesday, this the 28th day of January, 2015 E.A.No.20 /2015 in E.P.No.145 /2010

Between:

Nunela Appa Rao, S/o Late Pakeeru, Hindu, age 63 years, residing at D.No.36- 93-270/1, Ward No.37, Indira Nagar colony-5, Kancharapalem, Visakhapatnam.

...Petitioner/J.Dr

And:

B.Ramulamma,W/oRamana, Hindu, age 53 years, residing at D.No.38-23-76, Indiranagar Colony, R & B Office, N.H.5 Visakhapatnam..

..Respondent/DHr.

This petition coming on this day for final hearing before me in the presence of

Sri.S.S.Chalam,, Advocate for Petitioner/J.Dr and Sri K.Adibabu, Advocate for

Respondent/DHr and having stood over till this day for consideration this court delivered the following:

DOCKET ORDER

Counter filed by respondent.

Heard both sides. The learned counsel for petitioner submitted that the petitioner/J.Drs earlier counsel not cross examined on crucial points so petitioner filed this petition. He further submitted that in cross examination of P.W.1 earlier counsel requested time in further cross examination but court rejected the same. So he pleaded to allow the petition.

On the other hand the learned counsel for respondent submitted that petitioner not stated any reason why his earlier counsel not cross examined crucial points. Finally he pleaded to dismiss the petition.

On perused the record P.W,1 examined in chief on 19-12-2014 and deferred the cross examination and posted to 29-12-2014. So it clearly shows petitioner got sufficient time and opportunity to cross examined the

P.W.1. On consider the same on 29-12-2014 not permitted the petitioner by granting time for further cross examination. After cross examination of

P.W.1, P.W.2 was examined on 30-12-2014. Thereafter posted for respondent side evidence on 31-12-2014. On perused the averment of petition affidavit to drag on the matter petitioner changed his counsel and filed three petitions on the same set of facts. As such I was not found any merits in the petition.

In the result, petition dismissed without costs.

Pronounced by me in open court,this the 28th day of January,2015.

I ADDITIONAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM

1

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE: VISAKHAPATNAM.

PRESENT: Sri B.Lakshmi Naryana,

Principal Junior Civil Judge,

Visakhapatnam. THURSDAY, THE 8th DAY OF DECEMBER, 2016

O.S.166/2016

Between: Gummadi Manoranjan, S/o.Rama Seshu, Hindu, aged 32 years, resident of D.No.50-61-3, Rajendra Nagar, Seethammapeta, Visakhapatnam-16.

...Plaintiff

Vs.

1.K.Siva Parvathi Devi, W/o.Naga Raju, Hindu, aged 48 years, resident of D.No.33- 27-2, Chakaliveedhi, Allipuram, Visakhapatnam.

2.K.Nagaraju, S/o.not known, Hindu, aged 45 years, resident of D.No.33-27-2, Chakaliveedhi, Allipuram, Visakhapatnam.

3.M.Haribabu, S/o.Ram Murthy Reddy, Hindu, aged 45 years, resident of D.No.33- 27-2/1, Chakaliveedhi, Allipuram, Visakhapatnam.

...Defendants

This suit coming on 06.12.2016 for final hearing before me in the presence of Sri D.Chandra Rao, Sri K.V.Brahmam, Sri Y.Rama Rao Advocates for plaintiff and of Sri M.Suresh, Sri B.Madhu, Advocates for defendants and the same having stood over for consideration to this day, this court delivered the following:

JUDGMENT

1.This suit is filed by the plaintiff against the defendant for recovery of loan amount of Rs.1,63,366/- along with subsequent interest and costs.

2.The case of the plaintiff in brief is that the defendants 1 & 2 are wife and husband and 3rd husband is close friend. All the three defendants jointly borrowed an amount of Rs.1,00,000/- from the plaintiff on 21.07.2013 for their family expenses and to discharge their sundry debts. Immediately after receiving the loan consideration of Rs.1,00,000/- all the defendants jointly executed a demand promissory note at the residence of the plaintiff agreeing to repay the same @ 24% per annum. Subsequently the defendants did not pay any amount either towards interest or

principal, even though repeated requests and demands made by

the plaintiff and his mediators. Therefore, the plaintiff got issued 2 a registered lawyer's notice dt.22.09.2015. The defendants 1 & 2 received the notice but 3rd defendant not received the notice but have knowledge about the demand of the plaintiff. Though received the notice, defendants not taken any step to comply the said notice. Hence the suit.

3.The case of the 1st defendant in brief is that she filed her written statement denying all the main and material allegations mentioned in the plaint. She specifically denied the execution of demand promissory note as well as the borrowal of amount of alleged promissory note amount on 21.07.2013. She further submitted that she had a monetary transaction with a company by name “SC & ST Sneha Macs Ltd.,” D.No.50-61-3, Rajendranagar,

Seethammapeta, Visakhapatnam in the year 2011. She further contended that the alleged transaction was closed by D.Veerayya who is styled as 2nd Attestor of alleged promissory note used to collect the periodical payments from her and pass receipts for the said payments on behalf of the above said company. She further contended that during such transaction 2nd defendant stood as guarantor not as borrower. She strongly apprehends that the plaintiff colluded with said Veerayya and others brought into existence a forged and fabricated document by using the signatures of the defendants as Specimen Signatures and filed the above suit against her to extract the money from her in unlawful manner and prays to dismiss the suit with costs.

4.The brief contents of the written statement filed by the 2nd defendant are that : 2nd defendant filed his written statement denying all the main and material allegations mentioned in the plaint. He contended specifically that he never approached the plaintiff and never borrowed any amount from him at any point of 3 time as well not executed any demand promissory note in favour of plaintiff as such no money transaction took place between the plaintiff and the defendant herein. He further contended that 1st defendant had a monetary transaction with a company by name “The SC & ST SNEHA MACS Ltd.,” D.No.50-61-3, Rajendranagar,

Seethammapeta, Visakhapatnam in the year 2011 and the said transaction was closed. He also contended same as 1st defendant ie., he stood as guarantor in said monetary transaction with 1st defendant so also Mr.D.Veerayya who is styled as 2nd attestor of the alleged promissory note used to collect the periodical payments from 1st defendant. He further contended that plaintiff in collusion with said Veerayya and others filed this false suit by creating a forged and fabricated document after the signature of the above defendant as a specimen signature to gain unlawfully and the suit promissory note is a rank forged one and the signature on it does not belongs to him as well he neither signed or executed the said document and prays to dismiss the suit.

5. During the course of trial, Plaintiff examined herself as PW1 and examined 2nd attestor as PWs 2 and exhibited Ex.A1 to A5. On the other hand, 2nd Defendant examined himself as DW1 and no document marked on his behalf.

6.Basing on the pleadings, this court framed the following issues: -

1. Whether suit promissory note dt.21.07.2013 is true valid and binding on defendant or not?

2. Whether the plaintiff is entitled for suit claim as prayed for or not?

3. To what relief?

7.Plaintiff examined himself as PW1 and filed his examination in chief as affidavit by re-iterating the contents of his plaint and got exhibited A1 to A5. During cross examination, he deposed 4 that he deposed that he is working as C E O of Sneha Group of

Organization. He admitted that the above said Organisation provides loans to SC & ST people. He denied that he look after the welfare to file the suit by above said organisation. He admitted that 2nd attestor on Ex.A1 also working in our Organization and others ie., 1st attestor and scribe has no roll in the above said organisation. He deposed that he had acquaintance with defendants through 2nd attestor of Ex.A1. He deposed that he does not know whether 1st defendant obtained loan from above said organisation or not. He voluntarily adds to his version that so many people are obtaining from the above said organisation. He admitted that the above said organisation issued the loans by way of cheque only. He admitted that if any amount exceeds

Rs.50,000/- it will take only on bank transaction. He admitted further that he had scope to issue to the loans if any person needs in cash. He further admitted that he had not filed any re-joinder for the contentions raised by defendants. He had no knowledge about the procedure adopted by above said organisation while issuing the loans. He deposed that the present transaction has no connection with above organisation and it is his personal transaction. He deposed that he knows the occupation of D1 to

D3. He admitted that the signature shown to him on receipt issued by above said organisation is belongs to 2nd Attestor by name Veerayya.

8.PW1 further admitted that Ex.A1 does not reveals the details of D2 and D3. He adds that the same was not mentioned due to no sufficient space on Ex.A1 and they are residing in same address. He denied that though Ex.A1 having sufficient space, not mentioned the details of D1 and D2. He admitted further that A1 5 not shown the date in letters. He deposed further that the above said organisation has its own proformas for its transactions. He deposed further that Ex.A1 taken place at his house bearing door

No.50-61-3 and he is residing in the ground floor and the above said organisation is situated at 3rd floor of same building. He denied that each floor having separate door numbers.

9.PW1 denied that attestors and scribe on Ex.A1 are working at above said organisation. He denied that the scribe of Ex.A1 working as Manager at the above said organisation. He deposed that he is an income tax assessee and filing the returns also. He deposed that his income tax returns does not reveals Ex.A1 transaction. He denied that D1 borrowed the amount from said organisation for that purpose D2 and D3 stood as guarantors. He denied that he forged the signatures of D1 to D3 by observing their signatures on documents submitted to the above said organisation and filed the present suit to get the wrongful gain.

10.PW1 deposed further that he does not know the father name of 2nd defendant. He denied that without knowing the full details no one can lend the amounts. He deposed that D2 is a retired employee from Dockyard or Port trust. He denied that as no transaction was taken under Ex.A1, the said transaction was not shown in his income tax returns. He deposed that he is working in the above said organisation from 2005 with same capacity. He denied that the signatures on Ex.a1 not belongs to D1 to D3. He denied that D3 never resided at address shown in plaint. He denied further that he is deposing false to gain unlawfully. He deposed that he will examine the attestor and scribe of Ex.A1.

11.The 2nd attestor of Ex.A1 was examined by the plaintiff as

PW2. He filed his affidavit of examination in chief corroborating 6 the evidence of PW1. During cross examination he deposed that he is present before this court to give evidence on the request of plaintiff. He admitted that plaintiff is his superior in his office and he is working in the Office of Sneha Organisation since 5 years.

He deposed that the receipt shown to him was issued by him on behalf of Sneha Organisation because said person paid the payment in view of his loan amount and the same marked as

Ex.B1. He deposed that he cannot say without observing the records whether loan under Ex.B1 was cleared or not. He further deposed that he cannot say when the loan transaction taken place without observing the record under Ex.B1. He deposed that any loan transaction on behalf of Sneha Oganisation was taken within the knowledge of plaintiff as he is working as CEO of that organisation. He admitted that the loan transaction was completed on the directions of plaintiff for Sneha Organisation. He deposed that he does not know the procedure adopted by Sneha

Organisation while granting the loan as it was the duty assigned to another person.

12.PW2 deposed that he introduced the defendants to Plaintiff organisation and had acquaintance with the defendants while they came to their organisation. He deposed that when defendants requested him to arrange the money he took them to the plaintiff and said transaction is personal transaction but not connected with Sneha Organisation. He deposed that the cash transaction was taken under Ex.A1. He deposed that he cannot say without observing the record whether defendants paid the loan amount to

Sneha Organisation regularly or not. He deposed that Ex.A1 transaction took place at the house of plaintiff. He deposed that he does not know who filled up Ex.A1. He further deposed that he 7 does not remember how many Revenue Stamps are affixed on

Ex.A1. He further deposed that witness adds that he does not remember as transaction took place long back. He deposed that he was not present at the time of execution of Ex.A1 as such he does not know who scribed the same. He denied that plaintiff not lent any amount to defendants in his presence. He deposed that the said money transaction was taken in the year 2013. He denied that he and plaintiff colluded and forged the signatures of defendants basing on the documents available in Sneha

Organisation without taken any money transaction between

Plaintiff and Defendants. He admitted that Sneha Organisation provides loans.

13.2nd defendant examined as DW1 and filed his affidavit of examination in chief re-iterating his written statement. He deposed during cross examination that DW1 he studied upto 8th class. He deposed that he is a retired employee from Naval

Dockyard. He admitted that plaintiff issued legal notice prior to filing of the suit to him and to other defendants. He admitted that he had not issued any reply for the said notice. He deposed that he filed his written statement but not his wife. He deposed further that the transaction with SC ST Sneha MACS Ltd., had closed as repaid the said amount by 2nd defendant. He admitted that he is not a party in transaction with above said organisation. He denied that he along with other defendants jointly borrowed an amount of

Rs.1,00,000/- from the plaintiff. Witness adds that he had not received any consideration from plaintiff but he does not know about wife and 3rd defendant. He denied that he is deposing false with an intent to avoid the debt to plaintiff though we borrowed the amount under Ex.A1. He deposed that the signature shown to 8 him on vakalat, written statement belongs to him but signature on

Ex.A1 is not belongs to him. He denied that he is deposing false through signatures shown to him are appearing as one and the same. He deposed that he had not sent Ex.A1 for handwriting expert opinion to prove that the signature dose not belongs to him. He admitted that he had no transaction with plaintiff prior to the date of Ex.A1. He denied that plaintiff had no scope to forge his signature as there is no prior transaction with the plaintiff. He denied further that he is deposing false though they are having liability to clear Ex.A1 debt. He denied that all the contents of his written statement and examination in chief are false.

14. Issue No.1 & 2: Plaintiff filed this suit for recovery of an amount of Rs.1,63,300/- on the foot of promissory note dt.30.03.2014. It is the case of the plaintiff that the defendants 1 to 3 jointly borrowed an amount of Rs.1,00,000/- on 21.07.2013 to that effect executed a promissory note jointly in favour of the plaintiff by agreeing to repay the said debt with interest @ 24% per annum either to the plaintiff or on his order. It is also further case of the plaintiff that on repeated demands, defendants failed to clear the principal or interest issued a legal notice on 22.09.2015 by calling the defendants to clear the promissory note debt. Though defendants 1 & 2 received the same, but not responded the notice. On the other hand, the 1st defendant denied the execution of Ex.A1 in favour of the plaintiff by receiving consideration of Rs.1,00,000/- from the plaintiff. It is the case of the defendant that 1st defendant had monetory transactions with SC & ST Sneha MACS

Ltd., in the year 2011 and the said transaction was closed. While transaction is in force, the 2nd attestor on alleged promissory note one D.Veerayya used to collect the periodical payments. Said 9

Veerayya may collude with plaintiff brought into the existence of forged and fabricated promissory note which are available with above said Veerayya. When the defendants denied the execution of Ex.A1 ie., promissory note dt.21.07.2013, plaintiff himself examined as PW1 and said Veerayya examined as PW2. These

PW1 and PW2 filed their examination in chief by re-iterating the contents of plaint as well as corroborating with Ex.A1. PW1 and

PW2 clearly deposed that Ex.A1 transaction taken place at the house of PW1 on 21.07.2013 after receipt of consideration. D1 to

D3 signed on Ex.A1. In cross examination of PW1 clearly admitted that 2nd attestor of Ex.A1 also working in SC & ST Sneha MACS

Ltd., and he is also working as CEO for that Organization. He further deposed that Ex.a1 does not reveals the details of D1 and

D2. In this regard, he adds that Ex.A1 not having sufficient space to mention their address. He admitted that Ex.A1 not shown the date in letters. He further deposed that Ex.A1 transaction has taken at his house which is ground floor and SC & ST Sneha MACS

Ltd., is situated at third floor of the same building. This witness also denied that they created Ex.A1 with the help of PW2. PW2 in his cross examination deposed that plaintiff is his supporter in SC & ST Sneha MACS Ltd., He also admitted that he issued receipts on behalf of SC & ST Sneha MACS Ltd., and those receipts are marked as Ex.B1. He further deposed that when defendants requested him to arrange the money, they taken down to plaintiff and that transaction is connected with personal transaction and not connected with SC & ST Sneha MACS Ltd., He further deposed that he did not remember how many revenue stamps are affixed

Ex.A1 as it is taken long back. He further deposed that he was not present at the time of Ex.A1 transaction as such he do not know 10 who scribed the same. Therefore, the evidence of PW1 and PW2 clearly and categorically establishing that Ex.A1 transaction taken between plaintiff and defendants. It is also establishing that Ex.A1 transaction is personal transaction of plaintiff but not connected with SC & ST Sneha MACS Ltd., The 2nd defendant himself examined ,as DW1 and he filed his examination in chief by re- iterating his written statement. IN his cross examination he clearly admitted that plaintiff issued legal notice prior to filing of the suit to him and defendants 1 & 2. He also admitted that he has not issued any reply after receipt of legal notice issued by the plaintiff. He clearly admitted that he is not a party in transaction with SC & ST Sneha MAS Ltd., and the same was taken with his wife only. he denied that they jointly borrowed an amount of

Rs.1,00,000/- from the plaintiff at this stage he voluntarily adds that he has not received any consideration from the plaintiff but he do not know about his wife and 3rd defendant. He also denied the signature on Ex.A1. Though defendants denied the signatures on Ex.A1, they have not come forward to examine the signatures with hand-writing expert to disprove that the signature on Ex.A1 not belongs to them. As per the evidence of DW1, the transaction between SC & ST Sneha MACS Ltd., and wife of D1 only. Hence in such a situation there is no scope to sign on Ex.A1 by defendants 1 to 3. Moreover DW1 only denied that he has not received the consideration but he voluntarily adds that he do not know about the passing of consideration to his wife and third defendant. As such this witness not denied passing of consideration under Ex.A1 but wife of DW1 and 3rd defendant not come forward to prove that they have not received the consideration under Ex.A1. Though defendants filed Ex.B1 ie., receipts issued by SC & ST Sneha MACS 11

Ltd., which was signed by PW2 is no way helpful to disprove the version of the plaintiff.

15.On considering the above said discussion, we can safely conclude that plaintiff established his case by proving Ex.A1 transaction. Accordingly these issues are answered in favour of the plaintiff.

16. Issue No.3: In the result,the suit is decreed with costs against the defendants 1 to 3 jointly for an amount of

Rs.1,63,300/-(Rupees One Lakh Sixty Three Thousand and Three

Hundred only) together with subsequent interest on the principal amount of Rs.1,00,000/- @ 12% p.a., from the date of suit till the date of decree and thereafter @ 6% p.a., from the date of decree till the date of realization.

Dictated to the Stenographer-Gr.I, transcribed by her and corrected and pronounced by me in the open court,

this the 8th day of December, 2016.

PRINCIPAL JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

For Plaintiff: For Defendant: P.W.1 : Gummadi ManoranjanD.W.1: Katta Naga Raju P.W.2: Devarapalli Veerayya

DOCUMENTS MARKED

For Plaintiff:

Ex.A1: Original Suit Promissory Note dt.21.07.2013 Ex.A2: Registered Legal Notice, dt.22.09.2015 Ex.A3: Original Postal Acknowledgment of D1 Ex.A4: Original Postal Acknowledgment of D2 Ex.A5: Original Returned Cover of D3

For Defendant: Nil.

PJCJ, VSP.

12