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AS 177/2013
PDJC/VSP
IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE VISAKHAPATNAM
Present: Ms.B.S.Bhanumathi,
Principal District Judge
Tuesday the 26 th day of May, 2020.
APPEAL SUIT No. 177/2013
Between:
1. Nagothu Ramulamma (died)
2. Nagothu Singanna, S/o late Adiyya, Hindu, aged 63 years, Cultivation & Business, R/o K.Nagarapalem village, Bheemunipatnam mandal, Visakhapatnam district.
3. Pothina Appalakonda, W/o Pothina Appa Rao, aged 60 years, hindu, house hold duties, R/o M.Nagarapalem village, Chinna Gadili mandal, Visakhapatnam district.
4. Pothina Nagamani, W/o Venkata Ramana, aged 55 years, rest – do .
5. Nagothu Suri Babu, S/o late Adiyya, hindu, aged 43 years, milk vendor, R/o K.Nagarapalem village, Bheemunipatnam mandal, Visakhapatnam district.
(appellants 2 to 5 are added as per the order, dt.30102018 in IA 2637/2017)
...Appellants
And:
1. P.Raja Rao, S/o late Bairagi, hindu, employee, aged about 53 years, resident of Dr.No.501111, TPT Colony, Seethammadhara, Visakhapatnam – 13.
2. M.Appanna, S/o Simhachalam, hindu, aged 56 years, employee, resident of Dr.No.501013, Seethammadhara, Visakhapatnam – 13.
...Respondents
ON APPEAL AGAINST THE DECREE AND JUDGMENT DATED 03082013 IN
O.S.No.33/2011 PASSED BY THE JUNIOR CIVIL JUDGE, BHEEMUNIPATNAM .
Between :
Nagothu Ramulamma, W/o Adiyya, hindu, aged 63 years, cultivation and house hold duties, R/o Nagarapalem, H/o Kapuluppada of Bheemunipatnam mandal, Visakhapatnam district.
...Plaintiff
And:
1. P.Raja Rao, hindu, employee, aged about 53 years, resident of Dr.No.501111, TPT Colony, Seethammadhara, Visakhapatnam – 13.
2. M.Appanna, hindu, aged 56 years, employee, resident of Dr.No.501013, Seethammadhara, Visakhapatnam – 13.
3. P.Kalavathy, D/o Rama Murthy (died), rest – do . (died) (as per memo filed by D1,dt.13072009
...Defendants
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PDJC/VSP
This appeal has come up before me on 18.07.2019 for final hearing in the presence of Sri Kota Mallikarjuna Rao, Sri B.Narasimha Sarma & Sri N.Ravi Kumar, Advocates for the appellants and Sri M.Satyanarayana, Advocate for R1 & R2 and the matter having been heard and stood over for consideration till this day and having served the notice to both side counsel, this Court made the following:
J U D G M E N T
1.This appeal is filed against the decree and judgment dated 03082013 passed in
OS No.33/2001 on the file of Junior Civil Judge's Court, Bheemunipatnam where under
the suit filed for permanent injunction was dismissed.
2.For the sake of convenience the parties will be referred to with their status in the trial court.
3.The facts leading to filing of the present appeal in brief are as follows:
The plaintiff is the absolute owner of the plaint schedule property which is described as follows: Ac.0.30 cents of dry land – thrashing floor (kallam) and thatched hut in S.NO.307/10 at Nagarapalem, H/o Kapuluppada, Bheemunipatnam mandal,
Visakhapatnam district. The boundaries of the property is as follows:
East : Gorja
South : Bata – Road
West : Dry land sold by Pothina Sanamma to others
North : Dry land sold by Illipalli Appala Swamy to others.
The suit schedule property is the ancestral property of the father of the plaintiff and after demise of her father, the government had issued a pattadar pass book to her brother Appala Naidu who in turn gave the same to the plaintiff under a registered gift deed, dt.22122000 and ever since she is in peaceful possession and enjoyment of the same by placing the agricultural produce as well as paddy heaps over it and also raised a thatched hut over it and the bullock tyre cart was also placed on it and thus, enjoying the same with absolute rights peacefully and continuously. While the matter stood thus, the 3
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PDJC/VSP defendants without having any manner of right, title, need or necessity, on 11022001 at about 10 AM, came in two cars along with their henchman and tried to trespass in the suit schedule property and when the plaintiff questioned the same, they proclaimed that they would come with bull dozzers and damage the thatched hut. The defendants are rich and influential persons and are capable of implementing their threats into action.
Hence, the plaintiff filed the present suit.
4.D3 filed written statement and the same was adopted by D1 & D2. D3 in her written statement denied the material allegations in the plaint and further contended as follows:
(a)D3 and Killi Soudhamani Devi who is the wife of D2 are the lawful and absolute joint owners of the suit schedule property in equal halves, each of them having individually purchased the same under respective registered sale deeds. Neither D1 who is the husband of D3 nor D2 has anything to do with the property and they are neither proper nor necessary parties to the suit. Hence, the suit is bad for misjoinder of parties.
(b)Originally, on 20061987, Illipilli Appala Naidu who is the brother of the plaintiff and five others including the husband of the plaintiff by name Adeyya and their son
Singanna sold the suit schedule property to one Dantuluri Prabhakara Varma, S/o
Satyanarayana Varma for a sum of Rs.5,600/ and received the same in whole and executed in his favour a registered General Power of Attorney empowering him to deal with the suit schedule property in any manner whatsoever as per his wish and will and another deed of assurance (haamee patram) and delivered the physical possession of the property to him. Thus, the said Appala Naidu and others ceased to have any right, title, claim, demand or possession over the suit schedule property. Since then, Prabhakara
Varma and D3 and her coowner Killi Soudhamani Devi have been in physical possession and enjoyment of the property.
(c)The suit schedule property is fully covered by the new Sub Division No.19 of 4
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Survey Number 307 of Kapuluppada. Originally, it was covered by Sub Division No.10 of the same Survey Number 307 which originally consisted 13 sub divisions only which in the course of reorganization were increased to 24 sub divisions. Hence, the sub division 10 is no longer relevant nor does it hold good in relation to the suit schedule property.
Thus, the new sub division number 10 of S.No.307 of Kapuluppada is much away from the suit schedule land which consists of only about 4 ½ cents and is located at the north east corner of S.NO.307. Whereas the 30 cents land covered by sub division number 19 is clear from the FMB of S.No.307 of Kapuluppada.
(d)In addition to the said 30 cents of land in S.No.307/19 purchased from Illipilli
Appala Naidu and others, the said Prabhakara Varma also purchased another item of land to an extent of Ac.0.74 cents in S.No.307/6 & 7 (old) which correspond to new
S.Nos.307/16 & 17 from Pothina Sannamma and others through a registered general power of attorney. Thus, he acquired right and interest over a total extent of Ac.1.04 cents in S.Nos.307/16, 17 & 19. Subsequently, Dantuluri Prabakara Varma transferred the title of Ac.1.04 cents land in equal halves i.e. Ac.0.52 cents each in favour of Killi
Soudhamani Devi and D3 individually @ Rs.430/ per cent under separate sale deeds, dt.21091990 which includes the extent of Ac.0.15 cents each which are part of
S.NO.307/19 i.e. the plaint schedule property. Ever since, they both have been in joint physical possession of the said property. Though the new sub division number 19 corresponds to the old sub division number 10 by oversight, the old sub division number was mistakenly mentioned as sub division number 7 in both the documents and it is not a material discrepancy.
(e)While so, D3 and Soudhamani Devi along with one Y.Thavudu, through their attorneys K.Bhaskara Rao who is the younger brother of Soudhamani Devi and
P.Narayana Rao who is the husband of younger sister of D3, by taking permission vide
BLP No.13/97 developed their respective parts of the said layout of the extent of Ac.2.67 cents including the plaint schedule as house sites by providing roads, RR masonry drains, 5
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PDJC/VSP public open spaces etc. Due to unforseen financial problems, D3 and Killi Soudhamini
Devi along with their coowner Y.Thavudu sold the plotted area of 1427 sq.yards which includes the plotted area of 1210 sq.yards in the suit schedule land to their family friend
Dr.Balagani Radhakrishna Rao and raised funds and after completion of all such development as per the BLP conditions, delivered the same to him.
(f)The said Appala Naidu had no manner of right to obtain any pass book in respect of the suit land or to execute any gift deed or other deed in favour of any person much less the plaintiff. The total extent of sub division number itself is approximately Ac.0.30 cents only. Hence, it can be said that even after selling Ac.0.30 cents in S.NO.307/19,
Appala Naidu was able to still retain some more land in the same sub division no.19.
(g)The eastern boundary of the suit schedule land is no longer gorja as mentioned in the plaint schedule, but it is a well formed black topped road. The 3 feet masonry drainage constructed by them abutting the western side of the said road on the eastern side of the suit schedule land. The western boundary of the suit schedule land i.e. the land in S.NO.307/19 is the plotted area formed in the land in S.NO.307/18 sold by
Illipilli Appala Swamy and other through their GPA holder Veeramachaneni Subhas
Chandra Bose to Y.Thavudu. The land in S.NO.307/18 of Y.Thavudu intervenes the two bits of land in S.NO.307/19 and 307/17. Thus, from the above, it is clear that the plaint schedule itself is incorrect.
(h)Though the plaint schedule land was already sold by Appala Naidu and others to
Prabhakara Varma through whom D3 and Soudhamini Devi in turn purchased the suit land, still the said Appala Naidu is attempting now and then to trespass into the suit land and even attempted to manhandle one of the coowners Y.Thavudu. In those circumstances, on behalf of D3 and Soudhamini Devi, the said Y.Thavudu lodged a complaint, dt.28062000 with the Bheemunipatnam police. With intervention of police, he laid low for a long time, but, just before filing of the suit, they unlawfully trespassed into the suit land and erected a temporary thatched hut in the suit land overnight and 6
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PDJC/VSP managed to bring from a long distance old harvested rice plants and stack them in the suit land and got the same photographed for the purpose of filing the suit.
(i)The plaintiff/1st appellant does not have any real interest or claim in the suit land, but it is ony the said Appala Naidu and the son of the plaintiff that engineered the present litigation in her name.
(j)The plaintiff has no prima facie case or balance of convenience whatsoever in her favour. There is no cause of action for the suit. Thus, prayed to dismiss the suit.
5.Based on the afore said pleadings, the learned trial Judge framed the following issues for trial:
1. Whether the plaintiff is in possession of the suit schedule property as on the date of the filing of the suit?
2. Whether the suit schedule is correct?
3. Whether the plaintiff is entitled for permanent injunction as prayed for?
4. To what relief?
6.In the trial court, Nagothu Ramulamma (plaintiff) was examined as PW 1,
Nagothu Singanna (eldest son of the plaintiff) was examined as PW2 and Pothina
Appalanaidu was examined as PW3. Exs.A1 to A5 were marked on behalf of the plaintiffs. Ex.A1 is the original pattadar pass book issued in the name of plaintiff's brother
Appalanaidu, Ex.A2 is the four photographs with corresponding negatives, Ex.A3 is the original gift settlement deed executed in favour of plaintiff, dt.08112000, Ex.A4 is the certified copy of No.3 Adangal for the period 19992000 and Ex.A5 is the 10(1) account certified copy dt.23072001. On the other hand, defendants got examined DW 1 Metta
Appanna and DW2 Pothina Prakash rao were examined. Exs.B1 to B13 were marked on behalf of the defendants. Ex.B1 is the GPA executed by Illipilli Rambabau and others in favour of Danthuluri Prabhakar Varma, Ex.B2 is the original correlation certificate issued by the Mandal Surveyor, Bheemunipatnam, Ex.B3 is the certified copy of FMB of
S.No.307, Ex.B4 is the registered GPA, dt.18091987 executed by Pothina Sannamma 7
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PDJC/VSP and others in favour of Prabhakar Varma, Ex.B5 is the registered sale deed, dt.2109 1990 executed in favour of Soudha Mani Devi, Ex.B6 is the registered sale deed executed in favour of Pirla Kalavathi, dt.21091990, Ex.B7 is the General Power of Attorney executed in favour of K.Bhaskara rao and P.Narayana rao by Soudha Mani and Kalavathi, dt.21051991, Ex.B8 is the approved BLP issued by VUDA, Visakhapatnam, Ex.B9 is the office copy of the report given to SI of police, Bheemunipatnam, Ex.B10 is the bunch of 10 photographs along with one negative, Ex.B11 is the certificate issued by licensed surveyor, dt.12022011, Ex.B12 is the layout plan issued by VUDA, Ex.B13 is the document, dt.20061987 executed in favour of Prabhakar Varma by Illipilli rambabu and others. Pending the suit, D3 died, but no LRs are brought on record.
7.After considering both oral and documentary evidence, the learned Junior Civil
Judge, Bheemunipatnam dismissed the suit vide Judgment dt.03082013 in
OS.No.33/2001.
8.Aggrieved by the said decree & judgment, the appellants preferred the present appeal on the following grounds:
The lower court could only see the irrelevant and insignificant negative points of the plaintiffs case and became perverse and passed an erroneous judgment. Though the lower court found the suit schedule is correct and the plaintiff/1st appellant is in peaceful possession and enjoyment of the suit schedule property, miserably failed to appreciate the concept of injunction suits and dismissed the suit. The lower court failed to appreciate the evidence placed by the plaintiff. The lower court failed to note the glaring admitted facts of DWs1 & 2 and completely ignored the fact that an admitted fact need not be proved and that the lower court had miserably failed to understand that there is no room for presumptions or assumptions to in the court of law. The lower court erroneously denied the legitimate right of the appellant/plaintiff in seeking the relief of injunction simpliciter.
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9.Heard both the counsels. The appellants filed written arguments. Perused the material on record.
10. Now, the points that would emerge for determination in this appeal are:
1. Whether the appellant is entitled to permanent injunction?
2. Whether the impugned decree & judgment are sustainable?
3. To what relief?
11. POINT Nos.1 & 2:It is mainly contended by the appellants that in a suit for permanent injunction, the primary question to be decided is whether the plaintiff is in possession of the suit schedule property as on the date of filing of the suit and that the lower court having found the issue in favour of the plaintiff apart from finding the issue of correctness of the schedule of the property in favour of the plaintiff, erroneously dismissed the suit depending on the assumptions and presumptions unknown to law that the plaintiff's possession is not settled and that the plaintiff came to court with utmost unclean hands and the trial court failed to state the circumstances and facts which gave raise to finding about unclean hands or what is meant by plaintiff's possession is not settled. The appellants relied on the decision of High Court of A.P. in Policherla Samuel (died) and others vs. Policherla Yesupadam and others, dt.27062005, 2006 (1) ALD 859, wherein it is held that it is not necessary to examine the genuineness or otherwise of
Ex.A1 (deed of settlement) for the reason that the suit is for the relief of injunction simplicitor and no relief of declaration of title is prayed for and that the appellants have to prove to the satisfaction of the suit that they were in possession of the suit schedule property as on the date of filing of the suit while claiming the relief of perpetual injunction.
12.In view of the contention of the appellants, it is apt to refer the decision, relied by the respondents, of the Supreme Court in Ananthula Sudhakar vs. P.Buchi Reddy (dead) by Lrs and others, dt.25032008, AIR 2008 SC 2033 wherein the following general principles of suit for permanent injunction, suit for declaration and/or possession 9
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PDJC/VSP with injunction as consequential relief are discussed giving illustrations to the principles.
“11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.”
In the same decision, it is further held regarding the nature of possession required to be established for grant of permanent injunction as follows:
“13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or 10
AS 177/2013
PDJC/VSP agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a fullfledged suit for declaration and consequential reliefs.”
13.It is the plain case of the plaintiff that she is the owner of the property having acquired title by virtue of the gift deed executed by her brother Ippili Appalanaidu under
Ex.A3 and that the defendants suddenly tried to trespass just before filing of the suit. On the other hand, the defendants’ case discloses their claim for title to the property in favour of D3 and D2’s wife under two sale deeds executed by a GPA holder (D.P.Varma) of plaintiff’s brother (who executed gift deed Ex.A3 in her favour), husband, son and others and thus, denies the title of the transferor of property under Ex.A3. Therefore, there is a serious dispute of title to the property. As can be seen from Ex.B9 which is a copy of report to the police of Bheemunipatnam PS, dt.28062000 given by D3 and the wife of
D2 complaining against the brother of the plaintiff and others claiming their title as set up in the written statement. Hence, the dispute about the title is not for the first time disclosed in the written statement, but was raised long prior to execution of Ex.A3, dt.08 112000 (registered on 22122000). Suppressing the same, the suit was filed as if there is clear title to the plaintiff and there is threat to her possession. In the light of the decision of the Supreme Court at para 12 supra, the plaintiff has to file a suit for declaration of title and if necessary, with relief for injunction as well, but mere suit for permanent injunction does not lie in view of serious dispute of title even prior to 11
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PDJC/VSP execution of Ex.A3 and filing of the suit. Even if it is considered that the plaintiff filed the suit for mere permanent injunction believing that she has clear title supported by document and the defendants, without any apparent title, were trying to disturb her possession, she ought to have amended the suit seeking relief of declaration of title in view of the defence disclosed in the written statement raising a serious dispute of title of the plaintiff due to lack of title to her transferor. It is only if the plaintiff is entitled to file a suit for mere permanent injunction, then it is sufficient for the plaintiff to satisfy the court about possession in order to secure the relief of permanent injunction. But, as the plaintiff is required to seek the relief of declaration of title as well, the present suit claiming mere permanent injunction shall fail.
14.In addition to the above observation, this court proceeds to examine whether the plaintiff could make out a case to get the relief of permanent injunction. It is settled law that in a suit for permanent injunction also, the question of title can be incidentally gone into, apart from examining the issue of possession.
15.The plaintiff filed the registered gift deed Ex.A3 stated to be executed by her brother Ippili Appalanaidu. Whereas, the defendants questioned the title of the transferor stating that he had already parted with his right in the property along with others in favour of D.P.Varma under a registered GPA filed as Ex.B1, by virtue of which he executed two sale deeds in favour of D3 and the wife of D2 as stated in the written statement. It is the contention of the plaintiff that the plaint schedule property belongs to her brother, but she did not plea how he got the property. Ex.A3 speaks that the property is ancestral property of the brother of the plaintiff. PW2 who is the son of the plaintiff also stated that the property belongs to his grandfather Appalaswamy from whom his maternal uncle got the property. At this juncture, it is relevant to mention that, as per the evidence of PW2, Appalaswamy had four sons and one daughter who is the plaintiff. As per PW2, the sons of Appalaswamy are Suribabu, Appalanaidu, Lakshmana who is a bachlor and insane. As per Ex.B1 Appalaswamy had another son by name 12
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Rambabu. Ex.B1 refers to Rambabu, Suribabu and Appalanaidu, but not Lakshmana.
Besides these three sons of Appalaswamy, Nagothi Apparao, Nagothi Adiyya and Nagothi
Singanna are also shown to be the executants of Ex.B1. PW2 further stated in the cross examination that his grandfather Appalaswamy had property in Reddipalem,
K.Nagarapalem and Somannapalem. Except the pattadaar passbook in the name of Ippili
Appalanaidu, there is no evidence that the plaint schedule property exclusively belongs to him so that he can transfer the property absolutely to any person. There is no pleading of that there was partition among the sons of Appalaswamy and the plaint schedule property fell to the share of Ippili Appalanaidu. Then how could Appalanaidu alone convey title to the property.
16.Nextly, if at all the transferor under Ex.A3, along with others transferred the title in the property, there is nothing left for him to again transfer right in the property to the plaintiff. In support of the case of the defendants, they filed Ex.B1. The plaintiff is not a party to Ex.B1. As PW2 is one of the party to Ex.B1, a suggestion was given to him about its execution by him and others, but he denied. Ex.B1 is a registered document.
However, the defendants have not taken steps to examine any of the attestors to it or
D.P.Varma. It was argued by the appellants that PW2 is a signatory, but Ex.B1 shows thumb mark and not reliable. But, PW2 admitted in his evidence that he used to affix thumb mark till 2001 when he learned signature. Therefore, on this ground, Ex.B1 cannot be shown to be incorrect. Though the contents of registered sale deeds Exs.B5 &
B6 regarding the schedule of the property being one and the same under two different documents is pointed out to be a flaw in those documents, their execution is not denied or disputed by the plaintiff. Ex.A4 & A5 revenue records are not evidence of title of the transferor of Ex.A3. Mere filing of Ex.A3 or Ex.B1 is not proof of such documents by themselves. In the light of the foregoing discussion, it can be said that the plaintiff could not establish the exclusive title of her brother in the plaint schedule property and thereby her absolute title in the property. It is only when the plaintiff could discharge the initial 13
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PDJC/VSP burden on her to prove her title, the burden shifts to the defendants. The plaintiff cannot take advantage of the weakness in the case of the defendants to prove her case positively to discharge her initial burden. Of course, Ex.B5 & B6 show the same boundaries in respect of two different bits of Ac.0.52 cents each. If they have purchased undivided half share in Ac.1.04 cents, it must be spelled out in the documents, but there is no such whisper. On the other hand, if they are separate bits of land out of Ac.1.04 cents, all the four boundaries cannot be the same for each bit of it. Thus, there is a defect in the description of the property, if the parties wish it, they can take appropriate steps, but so far have not taken. Similarly there is another defect in these sale deeds mentioned by them in the written statement and the evidence. The plaint schedule property is said to be located in S.NO.307/10 (old) renumbered as 307/19, but the schedule in the sale deeds described the property as located in S.No.307/7. The defendants offered an explanation that the defect was noticed only when their advocate pointed it out. This defect is also not so far rectified as admitted by DW1. It is not the specific contention of the plaintiff that the property covered by Exs.B5 & B6 doesn’t relate to the property in dispute i.e. the plaint schedule property. Both parties are fighting for the same property on land. Though these defects are surfaced in the case of the defendants, it can be said that they could make out a case that there is a serious dispute of title to the disputed property and that the case of the plaintiff cannot be accepted as it is as gospel truth and that a decision on the title by framing a specific issue is required by seeking a relief of declaration of title and it is not just enough to make a roaming enquiry of title superficially by filing a suit for mere permanent injunction.
17.According to the defendants, apart from the plaint schedule property, the adjacent land was also put for layout. To substantiate the same, they filed the approved plan under Ex.B8 and the same document as Ex.B12, but Ex.B12 is not a total document of
Ex.B8 and is only a part of it. As can be seen from the cross examination of DW1, there is no examination on Ex.B8. It was issued by Vice Chairman, Urban Development 14
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Authority, Visakhapatnam with Block Layout Plan No.13/97 in respect of lands in
S.Nos.306/4; 307/15, 16, 17, 18,19; 308/26,49; 310/26 & 28 of Kapuluppada village of
Bheemunipatnam Mandal. In the absence of any circumstances indicating any suspicion about the document, merely because the document is denied, it cannot be discarded, more particularly when it was not touched in the cross examination of DW1. The plaintiff had the opportunity of showing it to be false, if at all it is so, but no such effort was made. The plaintiff expressed her ignorance about material aspects of the suit. Her son, PW2, denied any layout in and about the plaint schedule property. But, PW3 categorically admitted that a layout was formed within the a property covered by Ex.A3.
He further admitted that there are approved layouts around the suit schedule area. Thus, the evidence of PW3 strengthens the contention of the defendants about the layout.
18.It is further important to notice that PW1 stated in her cross examination that she filed the suit against VUDA Appanna (DW1/D2 who admitted the nick name in his cross examination). She does not know even that the suit is filed also against two other defendants. She deposed that she had seen him and that she had been observing him every day as he used to visit their village, but she could not say the particulars of the land owned by him in their village, nor could specify the house which he had visited when he had come to their village. PW3 stated that the defendants came to their village for preparation of layout etc., but at present they were not coming. This evidence further strengthens the case of the defendants on this aspect.
19.Though the title of the plaintiff is denied by the defendants, they stated that just
before filing of the suit, the plaintiff unlawfully trespassed in to the suit land and erected
a temporary thatched hut in the suit land over night and managed to bring old harvested rice plants from a long distance and stacked them in the suit land and got photographed for the purpose of filing the suit. Just because of this admission, the plaintiff vehemently contends that permanent injunction ought to have been granted.
20.It is settled law that the person seeking equitable relief like permanent injunction 15
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PDJC/VSP has to come to court with clean hands. The foregoing discussion does not show that the plaintiff has placed all the true facts before the court while seeking the equitable relief.
On the other hand, the plaintiff stated those facts which are favourable for a plaintiff to secure the relief of permanent injunction. Basing merely on statement of possession mentioned by the defendants that it is a malicious occupation just before filing of the suit cannot be taken as an admission of lawful possession of the plaintiff by the defendants.
The contents of the written statement or evidence must be read as a whole. While narrating the context in which the suit was filed, the defendants stated that while
Appalanaidu repeated the attempts to trespass the suit land, a complaint was lodged to the police on 28062000 with the Bheemunipatnam Police Station and due to the intervention of the police after verifying the records, Appalanaidu and his covendors being reprimanded, they kept quite for long time and thereafter just before filing of the suit they unlawfully trespassed. As such, such admission alone does not entitle the plaintiff for automatically grant the relief of permanent injunction.
21.It is contended by the appellants that the trial court erroneously dismissed the suit having found that the plaintiff is in possession of the suit schedule property on the ground of the plaintiff could not establish interference by the defendants. In view of the above circumstances, the finding of the trial court about the possession of the plaintiff basing on the admission of the defendants is erroneous.
22.In spite of the specific case of the defendants about the change in the survey numbers and filing a correlation certificate under Ex.B2, no explanation has come forth from the plaintiff. Still the plaintiff is fighting for 30 cents of land in the survey number 307/19 by showing the survey no.307/10 which now does not subsist in respect of 30 cents within the boundaries specified in the suit schedule, but relates only to 4 ½ cents bounded by other survey numbers as can be seen from the FMB sketch under Ex.B3.
23.Issue no.2 was framed by the trial court specifically on the correctness of the suit schedule basing on the averments at para 11 of the written statement. The pleadings in 16
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PDJC/VSP para 11 speak that 40 feet wide road running from east to west was formed by D3 and the wife of D2 in their lay out passes through the southern part of land in S.NO.307/19 and VUDA laid black top road on it and on the east of the said land there is a masonry drain of one foot with two walls on either side of one foot each and the said drain is also abutting the said road on its north within the land in S.NO.307/19. They further pleaded that there is another black top 40 feet wide road laid more than a year ago on the east of the suit schedule land and the same runs till the proposed 100 feet wide
Boyapalem road and this 40 feet wide road was also formed in their layout and thus, they denied that there is gorja on east of the suit schedule land claiming that the eastern boundary is no longer gorja as mentioned in the schedule. Further they pleaded that there is another similar one foot wide drainage passing through the extreme eastern part of the schedule property abutting the eastern 40 feet width road on its west. The trial court observes that PW2 also admitted about the black top road on the southern side of the disputed property, but holds that it is not a material aspect to touch the root of the case of the plaintiff as the gorja is not much different from that of the road. In fact, the eastern boundary is shown as gorja, whereas the observation of the trial court is regarding the southern boundary which is shown as bata road and the same was not denied in the written statement, however, stated that it was formed as per their layout and VUDA laid the black top road. The finding of the trial court that it is not a material aspect etc. is apparently incorrect. Coming to the eastern boundary described as gorja, the contention of the defendants is that it is no longer gorja and the plaintiff could not establish that it is still gorja, since the defendants pleaded that it is black top road. The plaintiff has to give the boundaries existing as on the date of filing of the suit for identification of the property. That apart, in the present case, gorja and black top road cannot be taken to mean the same thing as the defendants contend that they formed the road as per layout which is in pursuance of their purchase of the property.
24.Nextly, regarding issue no.2, in para 11 of the written statement the defendants 17
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PDJC/VSP further pleaded about improper description of western boundary as dry land sold by
Pothina Sannamma to others. In this respect, they contend that the western boundary is the plotted area formed in the land in S.NO.307/18 sold by Ippili Appalaswamy and others through their GPA holder Veeramachaneni Subhash Chandra Bose to Y.Tavudu who is one of the coowners of the layout referred above. They further pleaded that the land sold by Pothina Sannamma is located in S.No.307/16 & 17 and was purchased by
D3 and wife of D2 and that the said bit of land is away from the suit schedule land i.e.
S.NO.307/19 and both are intervened by land in S.No.307/18. Therefore, it is their contention that the description of western boundary is wrong. But, the trial court observed that PW2 admitted that the western boundary owner is Pothina Sannamma and the northern boundary is Ippili Appalaswamy, and that the contention of the defendants is that the property was sold by Sannamma and Appalaswamy to wife of D2 and Tavudu.
This observation of the trial court is absolutely incorrect as the defendants have never so contended. The trial court, accordingly, went wrong in further observing that since it is not the case of the defendants that Sannamma and Appalaswamy never held any properties in the said boundaries, mere non mention of names of the present vendees, it cannot be said that the schedule given is incorrect. The trial court failed to observe that the defendants pleaded that the land immediately adjacent on west of the disputed property is the layout property in S.NO.307/18 sold by Ippili Appalaswamy to Tavudu through GPA and the land in S.No.307/16 & 17 was sold by Pothina Sannamma to D3 and wife of D2 and is away from the suit schedule property. It is further observed by the trial court that as per the defendants, the suit schedule property is developed as residential plots and as such, it doesn’t affect the root of the case of the plaintiff and as such, the issue on correctness of the suit schedule was held in favour of the plaintiff.
Since the observations of the trial court on this issue are noticed to be incorrect, the argument of the appellants that the trial court committed error in dismissing the suit having found that the schedule property is correct doesn’t hold good.
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25.The case of the defendants that the suit was got filed through the plaintiff as
Appalanaidu and others conceived the evil idea of grabbing the suit land after developing the property and that the plaintiff doesn’t have interest or claim in the plaint schedule property, but it is only Appalanaidu and the son of the plaintiff engineered the suit. Her brother Appalanaidu was no more by the time the evidence was recorded in the trial as can be understood from the evidence of PW2 as he stated that Appalanaidu died five years before his evidence. The ignorance of the plaintiff is evident from her evidence in the cross examination when she stated that she does not know the suit relief, the documents filed by her, the survey number or extent of the suit property, the contentions of the defendants etc. She stated that the suit if filed against VUDA Appanna (D2). She does not even know that the suit is filed against even two more defendants. She further stated that her son gave the instructions for preparing the plaint at the time of filing of the suit. She admitted that she does not know the contents of her evidence. She claims that her son knows her evidence. Thus, for all these reasons, it is amply clear that the plaintiff is used as a device to file the suit.
26. POINT NO.3: In the result, the appeal is dismissed. No costs.
Typed to my dictation, corrected and pronounced by me in open Court, this the 26th day of May, 2020. Sd/B.S.Bhanumathi
District Judge
Visakhapatnam
Appendix of Evidence
No additional oral or documentary evidence is adduced on either side.
//t.c.b.o.// Sd/B.S.Bhanumathi PDJ/VSP Chief Administrative Officer Ditrict Court, Visakhapatnam.
Copy to:The Junior Civil Judge, Bheemunipatnam.