O.S.No.32/2011Dated: 30.12.2019
IN THE COURT OF THE JUNIOR CIVIL JUDGE AT SIRPUR
MONDAY, THE THIRTIETH DAY OF DECEMBER
TWO THOUSAND AND NINETEEN
Present
BATTULA RAMA RAO
JUNIOR CIVIL JUDGE
O.S.No. 32 OF 2011
BETWEEN:
Sandella Chinna Sathaiah, S/o: Lasmaiah, Aged: 60 years, Occu: Agriculture, R/o: Ityala, Mandal Dahegaon. … Plaintif //And//
1. Sandella Rajam (died), S/o: Shivaiah, Aged: 85 years, Occ: Agriculture, R/o: Ityala, Mandal Dahegaon.
2. Sandella Bhoomakka, W/o: Late Sathaiah, Aged: 55 years, Occ: Agriculture, R/o Ityala Mandal Dahegaon.
3. Burn Shankaramma, W/o: Late Gundaiah, Aged: 55 years, Occ: Agriculture. R/o: Ityala, Mandal Dahegaon.
4. Sandella Guruvaiah, S/o Rajam (died) R/o Ityala, Mandal Dahegaon.
5. Sandella Ganesh, S/o: Rajam, Aged: 55 years, Occ: Agriculture, R/o Guntlapet, Mandal Kaghaznagar.
6. Sandella Thirupathi, S/o Rajam, Aged: 45 years, Occu: Agriculture, R/o Ityala, Mandal Dahegaon.
7. Sandella Bhagavanthu, S/o Rajam, Aged: 42 years, Occu: Agriculture, R/o Ityala, Mandal Dahegaon.
8. Sandella Hanumakka, W/o Late Srinivas, Aged: 40 years, Occ: Agriculture. Rio Ityala, Mandal Dahegaon.
9. Sandella Chandramma @ Chandraka, W/o Rajam, Age 75 years, Occ. Agriculture, R/o Ityala, Mandal Dahegaon.
10.Sandella Sathakka, W/o Late Guruvaiah, Age: 55 years, Occ: Agriculture, R/o Ityala, Mandal Dahegaon.
11.Sandella Ramesh, S/o Late Guruvaiah,. Age: 35 years, Occ: Agriculture, R/o Ityala Mandal Dahegaon. 12.Sandella Saraswathi, D/o: Late Guruvaiah, Age: 26 years, Occ: Agriculture, R/o: Ityala, Mandal Dahegaon. 13.Sandella Santhosh, S/o: Late Guruvaiah, Age: 24 years, Occ: Agriculture, R/o: Ityala, Mandal Dahegaon.
...DEFENDANTS
This suit is coming on 29.10.2019 before me for final hearing in the presence of Sri V. Kishore Kumar, Counsel for the Plaintif and of Sri T. Dayaraj Singh, counsel for the Defendants and upon hearing arguments, upon considering the material available on record and the matter having stood over for consideration, till this day, the Court deliver the following:
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:: J U D G M E N T ::
1.The suit is filed by sole Plaintif against Defendants seeking declaration to declare him as owner of agricultural land to an extent of Ac.1-95 cents in Sy.No.159 and to an extent of Ac.2-06 cents in Sy.No. 133 situated within the revenue limits of Ityala village of Dahegaon Mandal and for consequential relief of perpetual injunction restraining the Defendants from interfering into his peaceful possession and enjoyment of said land.
The above mentioned agricultural land within the specific boundaries as mentioned in schedule is hereinafter to be referred as 'suit schedule property'.
During the pendency of suit, It was reported that Defendant
No.1 died during the pendency of this suit. As the legal heirs of deceased Defendant No.1 were already on record as Defendants No.2 to 9, no steps have been taken. Further during the pendency of suit, the Defendant No.4 also died. The legal heirs of deceased Defendant
No.4 were brought on record as the Defendants No.10 to 13 as per the orders in IA No. 18/2015 dated 20.07.2015.
2.Brief averments of Plaint are as follows:
Originally one S. Shivaiah was the owner of suit schedule property. The suit schedule property was fell to the share of Plaintif in the family arrangement long back. The pedigree of Shivaiah is as follows:
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Shivaiah
1. Late Lasmaiah 2. Late Ambakka 3. Rajam (D1)4. Late Shantha
1. Late Ashakka 1. Late Sathaiah
2. Chinna Sathaiah (husband of D2) (Plaintif) 2. Shankaramma (D3)
3. Guruvaiah (D4)
4. Ganesh (D5)
5. Thirupathi (D6)
6. Bhagavanthu (D7)
7. Srinivas (Husband of D8)
The said Shivaiah is the grandfather and deceased Defendant
No.1 is junior paternal uncle of Plaintif. Defendants No.2 and 8 are daughter-in-laws of deceased Defendant No.1 and they are the wives of late Sathaiah and late Srinivas respectively. The Defendant No.3 is daughter of Defendant No.1 and that Defendants No.4 to 7 are sons of Defendant No.1. Defendant No.5 went to his parents-in-law house as illatum son-in-law. Defendant No.9 is wife of deceased Defendant
No.1. After death of Shivaiah, the suit schedule property was transferred on the name of deceased Defendant No.1. The Plaintif is cultivating the suit schedule property without any interruption from anybody. As the Plaintif was having trust over the deceased
Defendant No.1, the Plaintif never insisted him for transfer of Patta of suit schedule property on his name. It is further case of Plaintif that on 02.05.2011 all the Defendants illegally interfered into the suit schedule property and tried to dispossess the Plaintif from the suit schedule property by denying his title. But the Plaintif with great eforts resisted the Defendants and sent them away. Hence the suit for declaration and perpetual injunction.
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3.The deceased Defendant No.1 filed written statement and same was adopted by Defendants No.2 to 8 by filing a memo.
The averments of written statement in brief are as follows:
The grandfather of Plaintif by name Shivaiah is no way concerned with the suit schedule property nor the same was fell to the share of Plaintif during family arrangement. The patta of suit schedule property stands on the name of deceased Defendant No.1 as he purchased the suit land through ordinary sale deed from one
Rambai W/o Shivaiah and Sandella Guruvaiah S/o Shivaiah by obtaining possession of suit schedule property. Sandella Shivaiah S/o
Basavaiah is separate from Sandella Shivaiah S/o Ashanna, who was grandfather of Plaintif. Sandella Shivaiah S/o Ashanna is no way concern with suit schedule property. Both Shivaiah S/o Basavaiah and
Shivaiah S/o Ashanna are belonging to separate geological tree. The
Plaintif taking advantage of similarity of names, he suppressed the real facts and claiming the suit schedule property through Sandella
Shivaiah S/o Ashanna, whereas suit schedule property belongs to
Sandelli Shivaiah S/o Basavaiah. The Plaintif never had in possession of suit schedule property and the deceased Defendant No.1 is in possession of the same. The Plaintif filed the suit for Ac.1-95 cents in
Sy.No. 159, but he mentioned the boundaries of Ac.3-75 cents.
Similarly, the Plaintif also mentioned wrong boundaries for the land in Sy.No. 133. The pedigree of Sandella Ramulu S/o Ushaiah is given below:
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Sandella Ramulu, S/o Ushaiah
Baswaiah (Expired) Nagaiah (Expired) (Wife Rajakka)
Shivaiah (Expired)Ramaiah (Alive)
Rambai (Widow)Gurvaiah (son) Suresh (son) Malleshu (Son) Pochaiah (Son)
After death of Shivaiah, the deceased Defendant No.1 purchased the suit schedule property from the legal heirs of Shivaiah i.e., Rambai(wife) and Guruvaiah (son). Ultimately, the Defendants prays the Court to dismiss the suit.
4.Basing on the pleadings of both parties, the following issues have been settled for trial by my predecessor.
1.Whether the Plaintif is entitled for declaration of title as prayed for ?
2.Whether the Plaintif is entitled for permanent injunction ?
3.To what relief ?
5.During the course of trial, Plaintif himself examined as
PW-1 and got examined one Jabre Bheem Rao and Saire Buchaiah as
PW-2 and PW-3 respectively and exhibited Exs.A-1 to A-20.
On the other hand, the Defendants got examined
Defendant No.11 as DW-2 and one Sandella Mallesh as DW-3. Exs.B-1 to B-15 are marked on behalf of Defendants. Initially, the Defendant
No.4 filed his chief examination affidavit as DW-1 and subsequently he was reported to be died and field memo to that efect. Hence the chief examination affidavit of DW-1 is expunged from the record.
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As per the orders in I.A.No.175/2014, dated23.09.2014, original Pahani registers for the year 2009-10 and 2010-11 pertaining to Ityala village was called for from the Tahsil office, Dahegaon.
Exs.C-1 to C-4 are marked as Court documents.
6. Heard the learned counsel for Plaintif and the learned counsel appearing for the Defendants at length.
7.Perused the entire material available on record.
8.I S S U E No.1:
Whether the Plaintif is entitled for declaration of title as prayed for ?
8(i)To fortify his case, the Plaintif stepped into witness box as PW-1 by reiterating the pleadings of Plaint. During cross examination, PW-1 testified that Shivaiah is his grandfather and he does not know the name of father of Shivaiah. He knows Sandella
Nagaiah and Sandella Basavaiah and Sandella Ramulu S/o. Nagaiah died about 3 years back. Sandella Ramaiah had two sons namely
Mallesh and Pochaiah. PW-1 testified that he does not know on whose name patta of the suit land stands. He has not filed any application
before the Tahsildar for grant of patta of the suit lands basing on his
long possession of 50 years. He does not know when Sandella Rajam got lands to his share during partition among his co-sharers. The suit land was fell to the share of his father during his childhood. His father died in his tender age. He does not know whether Sandella Shivaiah is son of Ashanna. He also does not know whether Sandella Shivaiah
S/o Ashanna is having any right or authority over the suit schedule land. PW-1 denied that the suit schedule property was purchased by
Defendant No.1 from the legal heirs of Sandella Basavaiah under a simple sale deed and that the names of purchasers implemented in revenue records and that Defendant No.1 is the pattadar of suit
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schedule property. PW-1 also denied that Sandella Guruvaiah has been in possession and enjoyment of suit land since his father’s time.
It is suggested to PW-1 that he has no possession over the suit schedule property at any point of time and that by taking advantage of name of Shivaiah, he is claiming the suit land and filed the suit to grab the same, which are denied by PW-1.
8(ii)PW-2 Jabre Bheem Rao deposed that Plaintif is the owner and possessor of suit schedule property and he has been cultivating same since many years i.e., from the days of his father.
PW-2 has land towards Northern side to the suit schedule property measuring more than Ac.2-00 cents after the way. The Defendants have no manner of right over the suit schedule property and they never cultivated the same at any point of time.
During cross examination, PW-2 deposed that he does not know Shivaiah of Ityala village. He also does not know Basavaiah.
He also does not know in whose name the patta of suit schedule property stands. He also does not know who is the owner and pattadar of suit schedule property. He does not know how Sandella
Shivaiah got the suit schedule property. He does not know prior to the
Plaintif who was original owner of suit schedule property. PW-2 denied that during the life time of Defendant No.1 he cultivated and enjoyed the suit schedule property and after his death his son
Defendant No.4 is in possession and enjoyment of suit schedule property.
8(iii)PW-3 Saire Buchaiah also deposed the same evidence to that of the evidence deposed by PW-2. During cross examination PW- 3 deposed that he does not know the pattadar of the suit schedule property. He does not know how Chinna Sattaiah acquired the suit schedule property, but his father also cultivated the suit schedule
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property. He knows Shivaiah who was the father of Lasmaiah. He does not know Basavaiah and so also Ashanna. PW-3 denied that he knows Shivaiah S/o Ashanna and another Shivaiah S/o Basavaiah.
PW-3 testified that the suit schedule property is situated in one compact area of one spot. PW-3 denied that during the life time of
Defendant No.1, he cultivated and enjoyed the suit schedule property and after his death, his son Defendant No.4 is in possession and enjoyment of suit schedule property. It is suggested to PW-3 that the
Plaintif is not in possession and enjoyment of suit schedule property and he never cultivated the same.
8(iv)To falsify evidence adduced by the Plaintif, the
Defendant No.11, who is son of deceased Defendant No.4 Guruvaiah, filed his chief examination affidavit as DW-2 and the same is reproduction of pleadings of written statement. During cross examination DW-2 deposed that his great grandfather Shivaiah had two sons. Deceased Defendant No.1 is his grandfather. The deceased
Defendant No.1 has one elder brother namely Lasmaiah. He knows that Defendant No.1 and his elder brother Lasmaiah are partitioned their ancestral properties and cultivating their respective shares.
Father of Plaintif by name Lasmaiah is predeceased to Defendant
No.1. DW-2 denied that since father of Plaintif by name Lasmaiah is predeceased to Defendant No.1, patta of all the ancestral properties were transferred on the name of Defendant No.1. About 40 to 50 years ago deceased Defendant No.1 and father of Plaintif partitioned their ancestral properties. The sons of Defendant No.1 are not partitioned their ancestral properties and they are cultivating the same jointly. The ancestral property in Sy.No. 132 stands on the name of Defendant No.1 to an extent of Ac.2-25 cents and on the name of father of Plaintif to an extent of Ac.2-25 cents. The ancestral property in Sy.No. 291 to an extent of Ac.7-09 cents each stands on
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the name of Defendant No.1 and father of Plaintif by name
Lasmaiah. He does not know when Defendant No.1 purchased the suit schedule property. The deceased defendant No.1 purchased the suit schedule property under simple sale deed and he got validated the same before the revenue authorities and got transferred the same on his name. The proceedings before Tahsil office were taken place after filing of this suit. DW-2 denied that the suit schedule property was the property of Shivaiah S/o Ashaiah and subsequently the suit schedule property was fell to the share of Plaintif. DW-2 also denied that the Plaintif is in possession and enjoyment of suit schedule property for the last 30 years and that taking advantage of nominal patta on the name of deceased Defendant No.1, he is deposing false to grab away the suit schedule property. DW-2 denied that Shivaiah S/o Basavaiah is no way concern with the suit schedule property and that he is not having any right over the same. DW-2 denied that Shivaiah S/o Basavaiah has no salable right over the suit schedule property and Defendant No.1 never purchased the same from Shivaiah S/o Basavaiah.
8(v)DW-3 Sandella Mallesh deposed that original owner of suit schedule property was one Sandella Nagaiah S/o. Ramulu.
Sandella Nagaiah was his paternal grandfather, he died long back.
His paternal grandfather Nagaiah had one brother namely Sandella
Basavaiah, who also died long back and who predeceased to Sandella
Nagaiah. DW-3 further deposed that his paternal grandfather
Sandella Nagaiah was pattadar and owner of land to an extent of
Ac.8-23 cents in Sy.No. 133 and Ac.3-75 cents in Sy.No.159 of Ityala village. After death of Sandella Nagaiah, the above lands were mutated by his father Ramaiah and Sandella Shivaiah S/o Basavaiah, but patta stands on the name of Sandella Naganna (Nagaiah). It is
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further evidence of DW-3 that in oral family arrangement, the land to an extent of Ac.4-12 cents in Sy.No. 133 and Ac.1-87 cents in Sy.No.
159 were fell to the share of Sandella Shivaiah S/o Basavaiah. His father Ramaiah got land to an extent of Ac.4-11 cents in Sy.No.133 and Ac.1-87 cents in Sy.No. 159 of Ityala Village. During the life time of his father, he enjoyed his share of land and after him, himself and his brother Pochaiah are exclusively enjoying the above lands. It is further evidence of DW-3 that the suit schedule property relates to shared lands of Sandella Shivaiah S/o. Basavaiah. Sandella Basavaiah and his only son Shivaiah died. Sandella Shivaiah S/o Basavaiah died leaving behind him, his widow Sandella Rambai and two sons
Sandella Guruvaiah and Sandella Suresh, who inherited the property after death of Basavaiah and his only son Shivaiah. But patta of shared land of Sandella Basavaiah stood on the name of Sandella
Nagaiah nominally up to 1989. It is further evidence of DW-3 that the
Defendant No.1 Sandella Rajam had purchased the shared land of
Sandella Basavaiah and Sandella Shivaiah after their demise from
Sandella Rambai and her elder son Guruvaiah through ordinary sale deed about 40 years back. He came to know all the said facts through his father and other legal heirs of Sandella Basavaiah. After purchase of shared land of Sandella Basavaiah’s branch, Defendant
No.1 approached the revenue authorities and got mutation proceedings. During the grant of mutation in favour of deceased
Defendant No.1, his father had given consent for transfer of patta on the name of Defendant No.1, which is the suit schedule property. The genealogical tree of Defendant No.1 and Plaintif is diferent from that of his family pedigree. The Defendant No.1 enjoyed the suit schedule property till his death and thereafter his family members are in possession and enjoyment over the same.
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During cross examination, DW-3 deposed that his paternal grandfather name is Nagaiah S/o. Ramulu. Ramulu has no younger brother by name Shivaiah. The total extent of Sy.No. 133 is
Ac. 8-26 cents and total extent of Sy.No. 139 is Ac.3-75 cents. He does not know how these lands acquired by his ancestors. DW-3 denied that Ramulu had younger brother by name Shivaiah. His father got Ac.4-13 cents in Sy.No.133 and Ac.1-88 cents in Sy.No. 159 in family partition. He does not know when partition was taken place.
His father informed that partition was taken place about 35 or 40 years ago. It is suggested to DW-3 that on 27.05.2011 the revenue authorities came to the suit schedule property, conducted panchanama about the possession of property and that in the said panchanama his father is one of the witnesses. DW-3 further testified that his father informed him that the deceased Defendant No.1 purchased the suit schedule property. DW-3 denied that the suit schedule property in Sy.No. 133 to an extent of Ac.4-11 cents was fell to the share of grandfather of Plaintif and out of said land, the
Plaintif got Ac.2-06 cents, likewise in Sy.No. 139 an extent of Ac.1-87 cents was fell to the share of Plaintif through his grandfather. DW-3 denied that to an extent of Ac.0-94 cents only fell to the share of his father. It is suggested to DW-3 that late Ramulu or his sons Basavaiah and Shivaiah or his son Guravaiah are no way concern with the suit schedule property and it never fell to their share. DW-3 denied that
Defendant No.1 never purchased the suit schedule property and that
Plaintif is in possession and enjoyment of the same.
8(vi)The learned counsel for Plaintif contended that the suit schedule property was the ancestral property of father of Plaintif and deceased Defendant No.1 and that in the family arrangement the suit schedule property was fell to the share of Plaintif, which was
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taken place long back and since then the Plaintif has been cultivating the same. He further contended that the Defendants are trying to occupy the suit schedule property by dispossessing the
Plaintif and they also denied the title of Plaintif.
Per contra, the learned counsel for Defendants contended that the suit schedule property was not the ancestral property of plaintif and defendants and that the deceased Defendant
No.1 purchased the same from one Sandella Rambai and Sandella
Guruvaiah, who are legal heirs of Sandella Shivaiah S/o Basavaiah, through simple sale deed. He further contended that the grandfather of Plaintif by name Shivaiah S/o Ashanna is no way concern with the suit schedule property. He further contended that since the date of purchase through simple sale deed, the deceased Defendant No.1 cultivated the suit schedule property and after his demise,
Defendant No.4 cultivated the suit schedule property and after the death of Defendant No.4 Guruvaiah and his legal heirs are in possession and enjoyment of suit schedule property. He further contended that all the pahanies including pahanies filed by the
Plaintif shows the name of deceased Defendant No.1 as pattadar of suit schedule property. Hence he prayed the Court to dismiss the suit.
8(vii)A careful perusal of oral and documentary evidence let in by both the parties, the facts which are identified as undisputed are that the father of Plaintif and deceased Defendant No.1 are sons of
Shivaiah. Defendant No.2 and Defendant No.8 are daughter-in-laws of Deceased Defendant No.1, Defendants Nos.3, 5 to 7 and deceased defendant No.4 are sons and defendant No.9 is wife of deceased
Defendant No.1. Defendants No.10 to 13 are wife and sons of deceased Defendant No.4 Guruvaiah and they were brought on
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record as legal heirs of deceased Defendant No.4, who died during the pendency of suit.
8(viii)As could be seen from the evidence and documents produced by Plaintif under Ex.A-1, A-2, A-4, A-5, A-7 to A-20 which are certified copies of pahanies shows that deceased Defendant No.1 was pattadar of land to an extent of Ac.3-75 cents in Sy.No.159 and to extent of Ac.4-12 cents in Sy.No.133/AA in which the suit schedule property is part and parcel. It is the contention of the learned counsel for the Plaintif that after the death of father of Plaintif, the name of deceased Defendant No.1 was mutated nominally in respect of suit survey numbers. He further contended that Defendants having pleaded that deceased Defendant No.1 purchased the suit schedule property from the legal heirs of Sandella Shivaiah S/o Basavaiah, through simple sale deed, they did not produce any such document to prove the alleged purchase. It is settled law that in a suit for declaration, the burden always lies on the Plaintif and he cannot rely on the weakness of the case of Defendants. The Defects in the defence of Defendants cannot be benefited in favour of Plaintif. The same was reiterated by the Hon’ble Supreme Court in a case between Union of India Vs. Vasavi Cooperative Societies 1that:- “In a suit for declaration of title and possession, the initial burden is on the Plaintiffs to establish their case irrespective of Defendants proved their case or not”.
8(ix)In the case on hand, heavy burden lies on the Plaintif to prove his ownership i.e., at first the Plaintif has to prove that suit schedule property was ancestral property of his father and deceased
Defendant No.1 and secondly he has to establish that in the family partition the suit schedule property was devolved upon him.
12014(2) SCC 2003
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8(x)It is the case of Defendants that originally one Sandella
Ramulu S/o. Ushaiah was the owner of lands in Sy.Nos.159 and 133 of
Ityala village and after his demise the said properties were mutated upon the name of his son Nagaiah and in the family partition the suit schedule property was fell to the share of Shivaiah S/o Basavaiah, i.e., grandson of Sandella Ramulu. Ex.B-1 certified copy of pahani for the year 1965-66 clearly shows that Sandella Naganna S/o. Ramulu was the pattadar of suit survey numbers and the same was reflecting in Ex.B-2 which is certified copy of pahani for the year 1980-81. The
Plaintif produced the documents i.e., certified copies of pahanies from the year 2006-07. But in none of the pahanies produced by the
Plaintif, either the name of father of Plaintif or name of his grandfather i.e., Sandella Shivaiah was described as pattadar or possessor of suit schedule property. PW-2 and PW-3 did not testify that the suit schedule property was the ancestral property of
Plaintif. Except the self serving statement of Plaintif, absolutely there is no either oral or documentary evidence on record to say that the suit schedule property is ancestral property of the Plaintif. Even the Plaintif failed to prove by examining the independent witnesses that in the family partition the suit schedule property was fell to his share. It is the evidence of PW-1 that the suit schedule property was fell to his share and in the cross examination he testified that his father got suit schedule property in partition. It is suggested to DW-2 that suit schedule property was fell to the share of Plaintif. Even the
Plaintif did not disclose when the partition was taken place. By this way Plaintif is not clear whether the partition was taken place between his father and deceased Defendant No.1 or between him and deceased Defendant No.1.
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8(xi)DW-3, who is none other than grandson of original pattadar Sandella Nagaiah, clearly deposed that Sandella Nagaiah was the original owner of the suit schedule property and pattadar
Sandella Nagaiah has one brother by name Basavaiah. After death of
Sandella Nagaiah, the lands were inherited by his father Ramaiah and
Sandella Shivaiah S/o. Basavaiah. He further testified that deceased
Defendant No.1 purchased the suit schedule property from Rambai and Guruvaiah who are legal heirs of Shivaiah S/o. Basavaiah. The
Plaintif did not deny the family pedigree of Sandella Ramulu S/o.
Ushaiah as furnished by Defendants. In the cross examination of DW- 3, it is suggested that Sandella Ramulu had younger brother by name
Shivaiah, which is denied by DW-3. From the said suggestion, the
Plaintif intends to bring his grandfather Sandella Shivaiah into the pedigree of Sandella Ramulu S/o. Ushaiah. If really the grandfather of
Plaintif by name Shivaiah was the younger brother of Sandella
Ramulu S/o. Ushaiah, the father name of Shivaiah (grandfather of
Plaintif) would be Ushaiah. It is suggested to DW-1 that suit schedule property was the property of Shivaiah S/o Ashanna. From said suggestion, it is clear that the father name of grandfather of
Plaintif was Ashanna, but not Ushaiah. Hence the grandfather of
Plaintif Shivaiah S/o Ashanna had no way concern with the family of
Sandella Ramulu S/o. Ushaiah. Since the Plaintif failed to prove that his grandfather Shivaiah was no way concern with the family of
Sandella Ramulu, it is not known how the suit schedule property was fell to the share of Plaintif in the family partition. Through the Ex.B-1 and B-2 it is proved that Sandella Ramulu was the original owner of suit schedule property.
8(xii)In view of above discussion, the Plaintif failed to prove that the suit schedule property was ancestral property of his father
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and deceased Defendant No.1 and further when the suit schedule property was not the ancestral property, the question of felling the same to the share of Plaintif does not arise, thereby the Plaintif cannot be declared as owner of suit schedule property. The point is answered negatively against Plaintif.
9.ISSUE No.2:
Whether the Plaintif is entitled for permanent injunction ?
9(i) In order to grant permanent injunction, the Plaintif shall prove that he was in possession of suit schedule property on the date of filing of suit and said possession would be lawful one. It is no doubt true that the documentary evidence produced by either of parties and so also Exs.C-1 to C-4 shows the name of Plaintif in possessor column in respect of suit schedule property. Under issue No.1, this
Court has already decided that Plaintif is not the owner of suit schedule property and that the plaintif also failed to prove that the suit schedule property was fell to his share in the family arrangement. The learned counsel for Plaintif contended that though the Court finds that the plaintif is not the owner of the suit schedule property, yet the Plaintif is entitled for permanent injunction as he proved to be in possession of suit schedule property on the date of filing of suit by producing oral and documentary evidence. He further contended that this Court is empowered to grant such relief of injunction, even though the main relief of declaration is declined. In support of his contention, he placed reliance on the following judicial precedent:
1. Ahalya Bai Vs Gagapur Shankaraiah And Ors. 2
2. M. Kallappa Setty Vs. M.V. Lakshminarayana Rao 3 21996(4) ALT. 3AIR 1972 SC 2299.
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3. Ananda Rao and Others Vs. The State of M.P. and others 4 9(ii)It is settled law that in order to grant permanent injunction, the Plaintif shall establish his possession on the date of filing of suit and such possession should be lawful. The learned counsel for the Defendants contended that merely because stray entries are reflecting in pahanies showing the name of Plaintif as possessor, it does not mean that he is in lawful possession of suit schedule property and that the unlawful possession of Plaintif cannot be protected by way of injunction. In support of his contention, he placed reliance on judicial precedent of the Hon’ble Apex Court in a case between Premji Ratan Sey Shah and others Vs. Union of
India (UOI) and others5 wherein it has been held that:
“ The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner ”. (Emphasis supplied) 9(iii)This Court has carefully perused the judicial precedents relied up on by the learned counsel for the Plaintif. It is no doubt true that this Court is empowered to grant injunction 4decided on 24.09.2019 in Second Appeal No.662 of 1997. 5 1994(3) ALT 25(SC)
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by declining the declaration, but at the same time the Plaintif has to prove his lawful possession over the suit schedule property to grant such relief.
9(iv)It has been elicited in the cross examination of DW-2 that Sy.Nos.132 and 291 are ancestral properties and to an extent of Ac.2-25 cents in Sy.No.132 stands on the name of deceased
Defendant No.1 and Ac.2-25 cents stands on the name of Plaintif, whereas to an extent of Ac.7-09 cents stands on the name of
Defendant No.1 and an extent of Ac.7-09 cents stands on the name of father of Plaintif in Sy.No. 291. It shows that in the partition taken place between deceased Defendant No.1 and father of Plaintif, the ancestral properties in Sy.Nos. 132 and 291 were partitioned and got mutated their names in revenue records to the extent of their respective shares. But the Plaintif did not file any pahani showing that his father was in possession of suit schedule property. If the suit schedule properties are ancestral properties, the same should have been put in partition that taken place between father of Plaintif and deceased Defendant No.1.
Without producing any document showing the possession of father of Plaintif, all of a sudden in Ex.A-8 which is pahani for the year 2006-07, the name of Plaintif is shown as possessor in respect of land to an extent of Ac.2-06 cents in Sy.No. 133/AA and whereas in
Ex.A-15 pahani for the year 2007-08, the name of Plaintif is shown as possessor for an extent of Ac.1-85 cents in Sy.No. 159. The
Plaintif claims to be in possession of suit schedule property for the last 50 years. But he produced pahanies from the year 2006-07 only. In the pahanies at column No.15 i.e., source of acquisition it is mentioned as Hissedar (Shareholder). It is not known that when
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the suit schedule property was not the ancestral property of
Plaintif and that as the Plaintif failed to prove the partition, how the name of Plaintif is shown as Hissedar in respect of suit schedule property in the pahanies. Exs.A-1, A-2, A-4 and A-5 are pahanies issued by the Village Revenue Officer, Ityala. The
Plaintif apprehends that the Court may not take into consideration of Exs. A-1, A-2, A-4 and A-5 on the ground that the Village
Revenue Officer is not competent to issue the same, he exhibited
Exs.A-9 and A-16 which are of the same year by obtaining the same from Tahsil Office. Exs.A-9 and A-16 shows the name of
Plaintif as possessor in respect of suit schedule property. Ex.B-7 is the pahani for the year 2006-07, whereas Ex.A-8 is the pahani for the same year i.e., 2006-07 in respect of Sy.No. 133/AA. A perusal of Ex.B-7, the possession column is kept blank. But in Ex.A-8 in possession column the name of deceased Defendant No.1 and
Plaintif are shown as possessors in respect of land to an extent of
Ac.2-06 cents each. Ex.B-7 was obtained on 02.09.2011 and Ex.A- 8 was issued on 09.07.2014. Ex.B-7 was issued earlier to Ex.A-8.
It shows that the Plaintif obtained Ex.A-8 by got mentioning his name in possessor column. Therefore, Ex.A-8 cannot be relied upon. Ex.A-10 and Ex.C-3 are of same year i.e., 2010-11. In Ex.C-3 the deceased Defendant No.1 was shown as pattadar and possessor to an extent of Ac.4-12 cents in Sy.No.133/AA, and name of Plaintif is shown for Ac.2-06 cents, which exceeds the total extent of Ac.4-12 cents. But in Ex.A-10 the name of deceased
Defendant No.1 shows to an extent of Ac.2-06 cents only. Ex.C-3 which is original record difers with Ex.A-10. Moreover, in Ex.C-1 to
C-3 the name of Plaintif is overwritten which creates doubt about the case of Plaintif.
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9(v)To prove his possession, the Plaintif mainly relied upon Exs.A-3 and A-6 which are panchanamas conducted by
Village Revenue Officer, Ityala on 27.05.2011 i.e., during pendency of suit. It is not know what made the Village Revenue Officer to conduct Ex.A-3 and A-6 panchanamas. In Ex.A-3 and A-6 it is not disclosed who directed the Village Revenue Officer to conduct such panchanamas. Even on Ex.A-3 and A-6, the signatures of
Defendants are not found. It is not the case of Plaintif that at time of Ex.A-3 and A-6 the Defendants were called and in their presence only panchanams were conducted. Under these circumstances, no weight could be given to Ex.A-3 and A-6. It is the case of
Defendants that the Plaintif filed the suit by showing wrong boundaries. On Eastern side for Sy.No.159, the land of M.
Guruvaiah is shown. Whereas in the cross examination PW-1 deposed that on Eastern side there is road and thereafter the land of M. Guruvaiah. It appears that the Plaintif included the road on
Eastern side in the suit schedule property of Sy.No. 159. Likewise on western side boundaries for Sy.No. 159 is not correct as deposed by PW-1. Coming to the boundaries for Sy.No. 133, on eastern side, the land of Pipre Babaji is shown but in cross examination PW-1 deposed that on eastern side, land of
Kudurupaka Bheemaiah is there. In Ex.A-6 panchanama also shows the land of Kudurupaka Bheemaiah on Eastern side. As per schedule, on northern side the way is shown, but as per evidence of PW-1 and as per Ex.A-6 panchanama, there is land of Jabre
Bheem Rao. On Southern side, the land of Jabre Nanu and
Choudary Ramaiah are shown, whereas as per evidence of PW-1 and as per Ex.A-6 panchanama on Southern side there is land of
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Sandella Ramaiah and Sandella Rajam respectively. It shows that the boundaries described for the Sy.No.133 on three sides are not corroborating with the evidence of PW-1 and panchanama Ex.A-6.
The Plaintif failed to furnish correct boundaries for the suit schedule property to obtain the equitable relief of injunction.
9(vi)To prove the possession, the Plaintif got examined
PW-2 and PW-3. According to PW-2 and PW-3 Plaintif is in possession and enjoyment of suit schedule property since long.
They further deposed that the suit schedule property is located on two diferent places. But in the cross examination they testified that the suit schedule property is one compact area. It appears that PW-2 and PW-3 deposed before the Court without knowing the location of suit schedule properties. It is the evidence of PW-2 that he is having land on Northern side to the suit schedule property measuring Ac.2-00 cents after the way. But in the cross examination PW-2 deposed his land on Northern side in stead of saying as road. As PW-2 and PW-3 testified that suit schedule property is located in compact area, their evidence does not inspire confidence and trustworthy. Even otherwise PW-2 and PW- 3 failed to depose that how PW-1 came into possession of suit schedule property.
9(vii)Even assuming for a while that Plaintif is in possession of suit schedule property, it cannot be said that such possession of
Plaintif is not lawful as it is not the ancestral property of Plaintif.
Even the Plaintif did not file mutation proceedings through which his name was entered in the revenue records as possessor. In the judicial precedent referred to supra relied upon by the learned
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counsel for Plaintif, the Plaintif in the said judicial precedents proved his possession as such injunction was granted to him though the relief of declaration was rejected. But, in the case on hand, the Plaintif failed to prove his lawful possession over the suit schedule property in order to grant permanent injunction.
Hence, the judicial precedents relied upon by the learned counsel for the Plaintif with due respect are not applicable to the facts of the case on hand.
9(viii)In view of above discussion the Plaintif failed to prove his lawful possession over the suit schedule property and as such he is not entitled for the equitable relief of injunction. The issue is answered against Plaintif.
10.ISSUE No.3:To what relief ?
10(i)In view of the discussion and findings under issue No.1 and 2, this Court holds that the suit of Plaintif is liable to be dismissed.
11.IN THE RESULT, the suit of the Plaintif is dismissed with costs.
Dictated to Personal Assistant, transcribed by him, corrected and
pronounced by me in the open Court on this the 30th day of December 2019.
JUNIOR CIVIL JUDGE
SIRPUR
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED
On behalf of Plaintif
PW-1Sandella Chinna Sathaiah PW-2Jabre Bheem Rao PW-3Saire Buchaiah
On behalf of Defendants
DW-1Sandella Guruvaiah (Eschewed) DW-2Sandella Ramesh @ Sandella Murali DW-3Sandella Mallesh
DOCUMENTS MARKED
ON BEHALF OF PLAINTIFFS
Sl.No. Date of Description of Document
Document Ex.A-1--Certified copy of Pahani for the year 2008-09 Ex.A-2--Certified copy of Pahani for the year 2009-10 Ex.A-327.05.2011Attested copy of panchanama. Ex.A-4--Certified copy of Pahani for the year 2008-09 Ex.A-5--Certified copy of Pahani for the year 2009-10 Ex.A-6--Attested copy of panchanama. Ex.A-7--Certified copy of Pahani for the year 2010-11 Ex.A-8--Certified copy of Pahani for the year 2006-07 Ex.A-9--Certified copy of Pahani for the year 2009-10 Ex.A-10--Certified copy of Pahani for the year 2010-11 Ex.A-11--Certified copy of Pahani for the year 2011-12 Ex.A-12--Certified copy of Pahani for the year 2011-12 Ex.A-1307-10-2016Proceedings No.D/838/2016 issued by Sub- Collector, Asifabad. (Marked subject to objection) Ex.A-1426-11-2016Proceedings No.B/355/2016 issued by Tahsildar, Dahegaon (Marked subject to objection) Ex.A-15--Certified copy of pahani for the year 2007-08 for Sy.No. 133/AA. Ex.A-16--Certified copy of pahani for the year 2008-09 for Sy.No. 133/AA. Ex.A-17--Certified copy of pahani for the year 2009-10 for Sy.No. 133/AA. Ex.A-18--Certified copy of pahani for the year 2010-11 for Sy.No. 133/AA. Ex.A-19--Certified copy of pahani for the year 2009-10 for Sy.No. 159/AA. Ex.A-20--Certified copy of pahani for the year 2010-11 for Sy.No. 159/AA.
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ON BEHALF OF DEFENDANTS
Sl.No. Date of Description of Document
Document Ex.B-1--Certified copy of pahani for the year 1965-66. Ex.B-2--Certified copy of pahani for the year 1980-81. Ex.B-3--Certified copy of pahani for the year 2000-01. Ex.B-4--Certified copy of pahani for the year 2001-02. Ex.B-5--Certified copy of pahani for the year 2004-05.. Ex.B-6--Certified copy of pahani for the year 2005-06. Ex.B-7--Certified copy of pahani for the year 2006-07. Ex.B-8--Certified copy of pahani for the year 2009-10 for Sy.No.159/A. Ex.B-9--Certified copy of pahani for the year 2009-10 for Sy.No.132/2. Ex.B-10--Certified copy of pahani for the year 2010-11 for Sy.No.159/A.
Ex.B-11--Certified copy of pahani for the year 2010-11 for Sy.No.159/A. Ex.B-12--Certified copy of pahani for the year 2005-06 for Sy.No.132/A. Ex.B-13--Pattadar passbook of deceased Defendant No.1. Ex.B-1408-06-2017Notice in WP. No. 18401/2017 on the file of High Court of Judicature at Hyderabad. Ex.B-1514-01-2018Order in WP. No. 18401/2017 on the file of High Court of Judicature at Hyderabad.
Sl.No. Date of Description of Document
Document Ex.C-1--Original Pahani for the year 2009-10 Ex.C-2--Original Pahani for the year 2009-10 Ex.C-3--Original Pahani for the year 2010-11 Ex.C-4--Original Pahani for the year 2010-11
JUNIOR CIVIL JUDGE
SIRPUR
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