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IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AT
GAJUWAKA
Present:- SRI B.SADHU BABU,
PRINCIPAL SENIOR CIVIL JUDGE,
GAJUWAKA.
WEDNESDAY, THE 18th DAY OF MARCH, 2020
ORIGINAL SUIT No.115/2016
Between :
Gunturu Ramachandra Murthy, S/o Sitarama Sastry, Hindu, aged 69 years, residing at Flat No.411, Palace Heights Apartment, Shivajinagar, Near Toll Plaza, Kurmannapalem, Visakhapatnam.
… Plaintiff .. And :
01. Karri Krishna Chaitanya Reddy, S/o Subbareddy, Hindu, aged 29 years, residing at Door No.8-74/2, Machavaram village, Ramavaram Mandalam, East Godavari.
02. Pothamsetty Veera Venkata Satyanarayana Reddy, S/o Narayana Reddy, Hindu, aged 43 years, Door No.4-46, Pasalapudi village, Rayavaram Mandal, East Godavari district.
(The 2 nd defendant was added as per orders in I.A.
No.297/2018, dated 29.11.2018).
... Defendants ..
This suit is coming before me for hearing on 06.03.2020 in the presence of Sri G.Apparao, advocate for the plaintiff and of Sri J.Prithvi
Raj and Sri B.V. Kumar, advocates for the defendants and upon hearing their arguments and the matter having stood over for consideration, till this day, this court delivers the following :
J U D G M E N T
This suit is filed by the plaintiff for permanent injunction restraining the defendants, their men and agents from ever interfering with peaceful possession and enjoyment of the plaintiff over the plaint schedule property in any manner whatsoever and for costs of the suit.
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02.The averments of the neat copy of plaint, in brief, are as follows:
The plaintiff is the absolute and exclusive owner of the property measuring an extent of 520 sq. yards of vacant house site Plot No. HIG
II/401, covered by Survey Nos.29, 30 and 32 situated at Aganampudi village, Gajuwaka Mandal, Visakhapatnam, which is the plaint schedule property. The plaintiff purchased the plaint schedule property from his vendor Sri Vijayalakshmi Co-operative House Building Society Limited on 27.06.1984 for a valuable consideration of Rs.10,400/- under registered sale deed bearing document No.2853/1984 in the office of Sub-Registrar,
Sabbavaram, Visakhapatnam.
03.It is further averred that the vendor of the plaintiff viz., Sri Vijaya
Lakshmi Co-operative House Building Society Limited purchased lands under various survey numbers from various land owners under different registered documents and after purchasing the lands, the said Sri Vijaya
Lakshmi Co-operative House Building Society Limited laid layout under the name and style of Sri Vijaya Lakshmi Co-operative House Building
Society Limited and obtained approval from VUDA vide Resolution
No.DCCR 12, dated 17.01.1983, thus, the plaintiff purchased the plaint schedule property by tracing out the title from 1984. The plaintiff took
Encumbrance certificates for the plaint schedule property from 01.01.1983 to 30.09.2007 in which it is very clearly recited that the plaint schedule property stands in the name of the plaintiff and the plaintiff also obtained E.C. from 01.10.2007 to 14.07.2014 for the plaint schedule property wherein it is very clear that the plaint schedule property is free from encumbrances.
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04.It is further averred that from the date of purchase, the plaintiff has been in peaceful possession and enjoyment of the plaint schedule property. The plaintiff is intended to make pucca construction in the plaint schedule property and engaged labour on 09.06.2016 to clear the bushes in the plaint schedule property, then the 1st defendant who does not have any manner of right, title, interest or possession over the plaint schedule property tried to interfere into the plaint schedule property and tried to obstruct the labourers who are working in the plaint schedule property by threatening that until and unless he pay some ransom amount he will not allow to proceed with the work in the plaint schedule property and that the plaintiff resisted the high-handed and illegal acts of the 1st defendant and his henchmen and asked to show their right, if any, over the plaint schedule property, but the 1st defendant did not show any paper and deliberately and openly proclaimed that he will occupy the plaint schedule property by hook or crook and nobody can stop them and left the plaint schedule property. Immediately, the plaintiff went to Duvvada police station to lodge complaint against the 1st defendant, but the police did not take complaint and simply advised to approach the Civil Court as the dispute is civil in nature. After filing of the present suit and after receiving the notices from the Court, the 1st defendant got filed a suit in O.S. No.89/2016 on the file of the Court of
Junior Civil Judge, Gajuwaka for permanent injunction against the plaintiff herein through the 2nd defendant, who is said to have been the vendee of the 1st defendant and the same is pending. The plaint schedule property is no way concerned with the property covered under Ex.B.1 – registered sale agreement-cum-General Power of Attorney bearing document No.1521/2011, but the defendants claiming right, interest, possession and ownership basing on the alleged documents over the
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plaint schedule property. Hence, the plaintiff filed the suit against the defendants seeking permanent injunction. Hence, the suit.
05.The 1st defendant filed written statement denying all the material averments of the plaint and specifically contended that the schedule appended to the plaint is wrong and there is no such schedule property in that area. The date of purchase of the plaint schedule property by the vendor of Sri Vijayalakshmi Co-operative House Building Society Limited is 19.05.1984. The link document filed by the plaintiff along with the suit was registered as document No.2134/1984. In the pleadings the plaintiff alleged that he purchased the plaint schedule property by tracing out the title from 1984 as per document No.2055/1984. There is no clarity in the pleadings of the plaintiff in the suit. After purchasing the property, Sri Vijayalakshmi Co-operative House Building Society sold away the plaint schedule property to the plaintiff on 27.06.1984 under registered sale deed bearing document No.2853/1984. That is with a gap of one month eight days. Whereas, the plaintiff averred in the plaint that the said Sri Vijaya Lakshmi Co-operative House Building Society
Limited laid layout after obtaining approval from VUDA vide Resolution
No.DCCR 12, dated 17.01.1983. The layout plan said to have been approved by the VUDA is not at all enclosed with the plaint by the plaintiff. The plaintiff failed to establish that he is in possession and enjoyment of the property as on the date of filing of the suit. Even according to him, the plaintiff purchased the property in the year 1984 from Sri Vijaya Lakshmi Co-operative House Building Society Limited, but the said property is not assessed to vacant land tax so far and there is no proof filed by the plaintiff.
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06.It is further contended that the 1st defendant purchased a plot of land measuring 1558.33 sq. yards covered by Survey No.32/1 of
Aganampudi village, within the limits of Lankelapalem Sub-Registrar,
Visakhapatnam under Possessory Agreement-cum-General Power of
Attorney on 13.06.2011 from his vendors Sri Mamidi Musalayya and others of Aganampudi. Ever since the date of purchase, the 1st defendant has been in possession and enjoyment of the property uninterruptedly by erecting barbed wire fencing within four corners of the said property. The barbed wire fencing was damaged due to Hud
Hud Toofan, which is known fact to everybody in the locality. As the 1st defendant is a permanent resident of Machavaram village, Rayavaram
Mandal, East Godavari district and moreover he is busily involved in his business activities, he was not in a position to protect his property from the land grabbers, as such, the 1st defendant intended to sell the same to third parties. On coming to know about his intention, one Shri
Pothamsetty Veera Venkata Satyanarayana Reddy came forward and negotiated terms with the 1st defendant to purchase the said land. After due deliberations and discussions, the 1st defendant sold away the said extent of 1558.83 sq. yards covered by Survey No.32/1 of Aganampudi village to the said Pothamsetty Veera Venkata Satyanarayana Reddy under registered sale deed, dated 12.05.2016 and delivered vacant possession of the same to him to the knowledge of one and all in the locality.
07.It is further contended that after purchasing the property, the said
Pothamsetty Veera Venkata Satyanarayana Reddy removed the damaged barbed wire fencing with an intention to construct boundary walls within the four corners of the said extent, to avoid land grabbers.
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While the work was in progress, all of a sudden, the plaintiff and his friend Sri M.V.Rama Sharma came to the said property along with his henchmen and tried to obstruct the same high handedly and illegally without producing any document and also threatened the vendee of the 1st defendant with dire consequences. In those circumstances, the said
Pothamsetty Veera Venkata Satyanarayana Reddy filed caveat petition bearing COP Nos.244/2016, 245/2016 and 246/2016 on the file of the
Courts of Principal Junior Civil Judge, Principal Senior Civil Judge and
Hon’ble XIII Additional District Judge, Gajuwaka. After receipt of caveat
petitions, the plaintiff filed the present suit and I.A. No.315/2016 without impleading the said Pothamsetty Veera Venkata Satyanarayana Reddy, who is the present owner of the said property as a party of the proceedings purposefully with a malafide intention to obtain some exparte order from the Court. Taking advantage of the exparte order passed in I.A. No.315/2016 granted on 30.06.2016 the plaintiff some how managed the police of Gajuwaka and tried to trespass into the plaint schedule property.
08.It is further averred that the plaintiff and his friend Rama Sharma are known as land grabbers in the locality and that they are having lot of men and material in their hands. They have been threatening the said
Pothamsetty Veera Venkata Satyanarayana Reddy with dire consequences. Hence, the said Pothamsetty Veera Venkata
Satyanarayana Reddy filed a suit in O.S. No.89/2016 on the file of the
Court of Junior Civil Judge, Gajuwaka. The property which was sold by the 1st defendant to the said Pothamsetty Veera Venkata Satyanarayana
Reddy is covered by Survey No.32/1, whereas the plaint schedule property is covered by Survey Nos.30,31 and 32 of Aganampudi village.
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Therefore, the boundaries mentioned in the sale deed of the plaintiff and the said Pothamsetty Veera Venkata Satyanarayana Reddy are totally different. The present suit is filed against a wrong person. There is no cause of action for the suit and the cause of action is invented for the purpose of filing of the suit and prayed to dismiss the suit with costs and award exemplary costs to the 1st defendant.
10.The 2nd defendant filed written statement denying the material averments of the plaint and specifically contended that he purchased the plaint schedule property from his vendor, who is having right, title and interest in the plaint schedule property and his vendor delivered the vacant possession of the said property to him. After purchase of the same, the 2nd defendant filed suit in O.S. No.89/2016 on the file of the
Court of Junior Civil Judge, Gajuwaka against the plaintiff and the plaintiff made his appearance and filed written statement, but no such pleas are taken in that suit. Therefore, the averments of the suit are not binding on the 2nd defendant. The 2nd defendant is having absolute right, title and interest in the schedule property from the date of its purchase and he has been in possession and enjoyment of the said property. The plaintiff has no valid title and he intended to enter into the property without any manner of right whatsoever. There is no cause of action in the suit, as such, the suit is not maintainable under law and prayed to dismiss the suit with exemplary costs.
11.Basing on the above pleadings of both the parties, the following issues are settled for trial by my predecessors in office:
01. Whether the plaintiff is in possession and enjoyment of
the plaint schedule property as on the date of the suit?
02. Whether the plaintiff is entitled for permanent injunction as prayed for?
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03. To what relief?
Additional Issue :
Whether the 2 nd defendant is entitled for exemplary costs
as prayed for or not?
12.During the course of trial, the plaintiff examined himself as P.W.1 and also examined P.Ws.2 and 3 and got marked Exs.A.1 to A.6 on his behalf. The defendant Nos.1 and 2 are examined themselves as D.Ws.1 and 2 and also examined D.W.3, but his evidence was eschewed and
Exs.B.1 and B.2 are marked on their behalf.
13.Heard the arguments on both sides and perused the oral and documentary evidence on record.
I S S U E Nos.1 TO 3 :
14.To prove the case of the plaintiff, the plaintiff examined himself as
P.W.1 by reiterating all the averments of the plaint in his chief examination affidavit. Exs.A.1 to A.4 are marked in the chief- examination of P.W.1. Ex.A.1 is the original registered sale deed, dated 27.06.1984 of P.W.1. Ex.A.2 is the certified copy of the registered sale deed, dated 19.05.1984. Ex.A.3 is the Encumbrance certificate, dated 19.03.2016 and Ex.A.4 is the Encumbrance certificate, dated 16.07.2014.
15.P.W.1 was cross-examined by the learned counsel for the defendants. P.W.1 admitted in his cross-examination that he never saw the defendant at any point of time and the defendant is claiming the plaint schedule property as he purchased the same. P.W.1 further admitted in his cross-examination that he has not verified the documents of the defendant and that he has not mutated his name
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either in the records of the GVMC or the Revenue Department and that he has not paying vacant land tax to the GVMC. P.W.1 further admitted that he has to obtain permission from GVMC to construct compound wall and he has not obtained any permission from the GVMC. P.W.1 further admitted that he has constructed compound wall after granting interim injunction in the suit. P.W.1 further admitted that the Court has not permitted to construct compound wall as per the interim injunction and that he does not know whether by the date of Ex.A.1, all the survey numbers were sub-divided as per the Survey in the year 1967 in united
Andhra Pradesh. P.W.1 further admitted that he cannot say on perusal of the survey number mentioned in Ex.A.1 what was the extent in each survey number and that he received the caveat instituted by one
Pothasetty veera Venkata Satyanarayana Reddy (the 2nd defendant herein) stating that he purchased the schedule property from the 1st defendant even prior to filing of the present suit and the copy of the caveat was also shown to his counsel.
16.P.W.1 was further stated in his cross-examination that he produced the link documents to Ex.A.1 and that the plaint schedule property is situated in Survey Nos.29,30 and 32 and that he has no idea what was the extent purchased by the Vijayalakshmi House Building Co-operative
Society Limited and what was the extent made it as layout. P.W.1 further admitted that the plan annexed to Ex.A.1 sale deed is not signed by
VUDA authorities. P.W.1 further stated in his cross-examination that the
Vijayalakshmi Co-operative House Building Society is still in existence, but he does not know the office address. The office of the society is situated in the VUDA Phase – 2 building at Duvvada and the same is the residence of the Secretary. P.W.1 further admitted in his cross-
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examination that after receipt of caveat notices of the 2nd defendant, he never met the Secretary of the Society to intimate the dispute. P.W.1 further admitted in his cross-examination that he has not verified the schedule in the caveat petition and that Ex.A.1 does not contain the sub- division numbers in sub-division S.Nos.29, 30 and 32 and in caveat schedule, the survey No.32/1 is mentioned. P.W.1 further stated in his cross-examination that he has not verified the boundaries mentioned in the written statement of the defendant regarding S.No.32/1 of
Aganampudi village and that he has no idea whether the vendee of the defendant filed a suit in O.S. No.89/2016 on the file of the Court of Junior
Civil Judge, Gajuwaka related to S.No.32/1.
17.P.W.1 further stated in his cross-examination that he contested the suit in O.S. No.89/2016 on the file of the Court of Junior Civil Judge,
Gajuwaka along with the plaintiff in O.S. No.117/2016 by filing their written statement. P.W.1 further admitted in his cross-examination that he received caveat notice from the plaintiff in O.S. No.89/2016 before filing the present suit. P.W.1 further admitted that he did not get any order or permission from the Court to make construction in the suit schedule property. P.W.1 stated in his cross-examination that does not know whether the suit schedule property was sold by the 1st defendant under registered sale deed, dated 12.05.2016 to the 2nd defendant or not. P.W.1 further admitted that he did not file any any rejoinder in this suit after filing the written statement by the defendant and that he did not issue any reply notice to the 2nd defendant even after receipt of caveat notice from him. P.W.1 denied all other suggestions posed by the learned counsel for the defendants.
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18.One Sammeta Leela Venkata Nancharaiah examined as P.W.2 in support of the case of the plaintiff. P.W.2 supported the case of the plaintiff in his chief-examination. P.W.2 stated in his chief-examination affidavit that the plaintiff is the absolute and exclusive owner of the property measuring an extent of 520 sq. yards of vacant house site, vide
Plot No.HIG-II/401, covered by S.Nos.29,30 and 32 situated at
Aganampudi village, Gajuwaka Mandal as the plaintiff purchased the plaint schedule property from Sri Vijayalakshmi Co-operartive House
Building Society Limited in the year 1984 for a valuable consideration under registered sale deed. P.W.2 further stated in his chief-examination that Sri Vijayalakshmi Co-operartive House Building Society Limited purchased lands under various survey numbers from various land owners under different registered documents and after purchasing the lands, the said Sri Vijayalakshmi Co-operative House Building Society
Limited laid layout under the name and style of Sri Vijayalakshmi Co- operative House Building Society Limited and obtained approval from
VUDA in the year 1983.
19.P.W.2 further stated in his chief-examination that from the date of purchase, the plaintiff has been in peaceful possession and enjoyment of the plaint schedule property and that on 09.06.2016 when the plaintiff to make pucca construction in the plaint schedule property, engaged labour to clear bushes, then the defendant who does not have any manner of right, title, interest or possession over the plaint schedule property tried to interfere into the plaint schedule property tried to interfere into the plaint schedule property and tried to obstruct the labour who are working in the plaint schedule property by threatening them. The plaintiff resisted the high handed acts of the defendant and
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his henchmen and asked to show their right, if any, over the plaint schedule property, but the defendant did not show any paper and deliberately and openly proclaimed that he will occupy the plaint schedule property by hook or crook and nobody can stop them and left the plaint schedule property. Then, immediately the plaintiff went to
Duvvada police station to lodge complaint against the defendant, but the police did not take complaint and simply advised to approach the
Civil Court as the dispute is civil in nature.
20.P.W.2 was cross-examined by the learned counsel for the defendants. P.W.2 stated in his cross-examination that he is having site in Sri Vijayalakshmi Co-operative Society layout and the plaintiff approached him for construction of the building in the schedule property. P.W.2 further stated that no agreement was reduced into writing between himself and the plaintiff for making construction in the schedule property. P.W.2 further stated that he obtained copy of layout plan of Vijayalakshmi Co-operative House Building Society from the
VUDA authorities by paying necessary fees. P.W.2 denied all other suggestions posed by the learned counsel for the defendants. P.W.2 further stated in his cross-examination that he does not know who is the 2nd defendant, but he saw him when he tried to enter into the property.
P.W.2 further stated that previously he used to work under the control of plaintiff, but not at present and that he came to know that the 2nd defendant filed suit against the plaintiff.
21.One Vallabhaneni Durgaprasad is examined as P.W.3 in support of the case of the plaintiff. P.W.3 stated in his chief-examination that he is the deponent of the affidavit and Special Power of Attorney Holder of the plaintiff in the above case, as such, he is well acquainted with the facts.
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P.W.3 further deposed that the plaintiff is the absolute and exclusive owner of the property measuring an extent of 520 sq. yards of vacant house site, vide Plot No.HIG-II/401, covered by S.Nos.29,30 and 32 situat4ed at Aganampudi village, Gajuwaka Mandal as the plaintiff purchased the plaint schedule property from Sri Vijayalakshmi Co- operative House Building Society Limited on 27.06.1984 for a valuable consideration of Rs.10,400/- under registered sale deed. P.W.3 further stated in his chief-examination that Sri Vijayalakshmi Co-operative
House Building Society Limited purchased lands under various survey numbers from various land owners under different registered documents and after purchasing the lands, the said Sri Vijayalakshmi Co-operative
House Building Society Limited laid layout under the name and style of
Sri Vijayalakshmi Co-operative House Building Society Limited and obtained approval from VUDA vide Resolution No.DCCR 12, dated 17.01.1983. P.W.3 further stated in his chief-examination that recently they obtained the layout extract of Vijayalakshmi Co-operative House
Building Society in S.Nos.16 to 19, 21, 23 and 25 to 37 of Aganampudi village wherein the plaint schedule property is situated. The said layout plan is very crucial and necessary for proper adjudication of the case.
Ex.A.5 is the true extract copy of layout plan of Vijayalakshmi Co- operative House Building Society covered by S.Nos.16 to 19, 21, 23 and 25 to 37 of Aganampudi village issued by VUDA.
22.P.W.3 was cross-examined by the learned counsel for the defendants. P.W.3 stated in his cross-examination that he has no personal knowledge about Ex.A.1 transaction. P.W.3 further stated that he is a builder by profession and he proposed to make construction in the suit schedule property if the plaintiff is interested and that he came
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to know about the title of the plaintiff over the suit schedule property only through him. P.W.3 denied all other suggestions posed by the learned counsel for the defendants.
23.To prove the contentions of the defendants, the 1st defendant was examined himself as D.W.1 and he reiterated all the averments mentioned in the written statement in his chief examination affidavit.
Exs.B.1 and B.2 are marked in his chief-examination. Ex.B.1 is the certified copy of the registered sale agreement-cum-GPA, dated 13.06.2011 bearing document No.1521/11 and Ex.B.2 is the original statement of encumbrance, dated 27.06.2016 for the period from 01.10.2015 to 20.06.2016. D.W.1 was cross-examined by the learned counsel for the plaintiff. D.W.1 stated in his cross-examination that he has visited the suit schedule property four months ago and the photograph confronted to him reflects the existing features of the schedule properties in both the suits and Ex.A.6 is the positive photograph. D.W.1 further stated in his cross-examination that the boundary wall was constructed for the total extent of 1040 sq. yards of site and that there is a vacant site on the southern side of the suit schedule property. D.W.1 further stated that the property purchased by him under Ex.B.1 sale deed is not part and parcel of the site of Ex.A.5 layout plan and that the total extent of the land covered by Survey
No.32/1 is 81 cents. D.W.1 admitted in his cross-examination that Ex.A.2 is a registered document and that he did not obtain any encumbrance certificate for Exs.A.3 and A.4 property. D.W.1 further admitted that the property covered under Ex.B.1 is not part of any layout site and that the
Ex.B.1 does not reflect that Mamidi Musalayya is one of his vendors.
D.W.1 admitted that the 2nd defendant filed suit in O.S. No.89/2016 on
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the file of the Court of Junior Civil Judge, Gajuwaka. D.W.1 further admitted that Mamidi Appalaraju and Mamidi Ganapathi (vendors under
Ex.B.1) were minors by the year 1984 and that Mamidi Kanakalakshmi,
Ramadevi and Suryakumari were not even born by the year 1984.
D.W.1 denied all other suggestions posed by the learned counsel for the plaintiff.
24.The 2nd defendant examined himself as D.W.2 by reiterating all the averments mentioned in his written statement in his chief-examination affidavit. D.W.2 was cross-examined by the learned counsel for the plaintiff. D.W.2 stated in his cross-examination that the disputed property is not 520 sq. yards. D.W.2 further stated that he has no objection to appoint an advocate commissioner for noting the physical features of the disputed property. D.W.2 admitted that the disputed property surrounded by many constructions and it is located in a developed area and that he does not know whether the land of
Vijayalakshmi Co-operative Society is situated in the vicinity of the disputed property or not. D.W.2 further stated that he filed suit in O.S.
No.89/2016 on the file of the Court of Junior Civil Judge, Gajuwaka, against the plaintiff herein and the plaintiff in O.S. No.117/2016 subsequent to filing of the present suit and suit in O.S. No.117/2016.
D.W.2 further stated that the description of property covered under his sale deed, dated 12.05.2016 does not reflect the plot numbers of neighbouring lands. D.W.2 further stated in his cross-examination that he is the 2nd defendant in the present suit and in O.S. No.115/2016 on the file of this Court. D.W.2 admitted that the plaint schedule properties in the present suit and in O.S. No.117/2016 are situated side by side covered by common compound wall. D.W.2 further stated that his
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property is also covered by a compound wall and he can identify his compound wall through photograph and that he did not mention about the said compound wall in his evidence affidavit. D.W.2 denied all other suggestions posed by the learned counsel for the plaintiff.
25.The learned counsel for the plaintiff submitted that as the plaintiff successfully established his title and possession over the schedule property through the Exs.A.1 Sale deed and the title of his vendor through the Ex.A.5 Sale deed, he is entitled to the permanent injunction as prayed for and as the defendants did not file any document in support of their alleged title and possession over the schedule property, their contentions need not be taken in to consideration. He further contended that as per the averments of written statement Ex.B.1 was executed by
Mamidi Musalaiah and others. But as seen from the Ex.B.1 was not executed by Mamidi Musalaiah and it was executed by the Mamidi
Peddaih @ Peddinaidu S/o Mamidi Musalaiah and his sons and daughters. The said Mamidi Peddaih is one of the executants of Ex.A.2 and his sons are minors and his daughters were not even born by the date of Ex.A.2 as admitted by the D.W.1. So even if the execution of the
Ex.B.1 is presumed as true for the sake of arguments, it does not confers any valid right are title in favour of the defendants as the said document was executed subsequent to the Ex.A.2 Sale deed of the plaintiffs vendor.
26.Per contra, the learned counsel for the defendants submitted that in a suit for declaration the plaintiff has to prove his case by adducing positive evidence and he cannot take advantage from the weakness of the defendants case. He further submitted that as per the averments of plaint, the vendor of the plaintiff i.e Sri Vijayalakshmyi Co-operative
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House Building Society Ltd., purchased lands under various survey numbers from various land owners under different Registered documents and after purchasing the lands the said society laid layout and obtained approval from VUDA vide Resolution No.DCCR 12 dated 17-1-1983 and the plaintiff purchased the schedule plot in the said layout from the Sri
Vijayalakshmyi Co-operative House Building Society Ltd., under the
Ex.A.1 Sale deed dated 27-6-1984. If really the vendor of the plaintiff laid layout by purchasing the lands under various survey numbers from various land owners under different registered documents and get the said layout approved by the VUDA on 17-1-1983, the plaintiff would have filed the said registered documents pertaining to the period prior to 17- 1-1983. But he failed to file any of such document into the court and as the Ex.A.2 Sale deed dated 19-5-1984 is subsequent to the date alleged approval of layout, it cannot be connected with the said layout.
27.The learned counsel for the defendant further submitted that the schedule property is within the limits of Gajuwaka Municipality which is vested with the Greater Visakhapatnam Municipal Corporation from the year 2007 and the plaintiff should have paid vacant land tax from the year 1984 to obtain plan approval for starting any pucca construction in the schedule property. As per the plaint averments the plaintiff engaged labour on 9-6-2016 to clear bushes in the plaint schedule property with an intention to make pucca construction and then the 1st defendant came there and obstructed the labour and the plaintiff resisted the high handed acts of the 1st defendant. But the plaintiff did not file any receipts of vacant land tax and plan approval into the court to prove his alleged possession over the suit schedule property.
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28.He further submitted that the plaintiff in his plaint averred that he lodged a complaint in Duvvada P.S against the 1st defendant on the incident dated 9-6-2016 and the police did not take his complaint and simply advised him to approach civil court. If the said version of the plaintiff is true, certainly the plaintiff would have brought the same in to the notice of the superior police officers or would have filed the private complaint before the competent court of law. But he failed to do so and he did not file at least the copy of said complaint in to the court and that itself shows that no incident was took place on 9-6-2016 and hence there is no cause of for this suit and it has to be rejected on that ground.
29.The learned counsel for the defendant further submitted that admittedly after receipt of caveat notices in a caveat filed by the 2nd defendant, the plaintiff filed the present suit against the 1st defendant only without impleading the 2nd defendant who is the present owner of the said property as a party of the proceedings purposefully with a malafide intention to obtain some exparte order from the Court and accordingly obtained expartee injunction in I.A. No.315/2016 against the 1st defendant who is wrong person and under the guise of said orders he entered in to the schedule property. That itself shows that the plaintiff approached the court with unclean hands by suppressing the material facts and hence, he is not entitled to the equitable relief in permanent injunction and prayed for dismissal of the suit.
30.On perusal of record, both the parties are claiming title over the suit schedule property on the strength of their respective documents.
However, since the plaintiff approached the court by seeking equitable relief, it is for him to establish his case by adducing positive evidence and he cannot depend on the weakness of the defendant’s case.
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31.It is settled law that when party seeking the equitable relief of permanent injunction, he has to approach the Court with clean hands, without suppressing any material fact. Then only primafacie case would be made out and balance of convenience would be found in favour of the plaintiff. If the defendant successfully established that the plaintiff approached the court by suppressing material facts with unclean hands, the equitable relief cannot be granted in favour of the plaintiff. As such, this court first and foremost has to see whether the plaintiff has approached this Court with clean hands without suppressing material facts for getting the equitable and discretionary relief of permanent injunction.
32.Originally, the plaintiff filed the present suit against the 1st defendant only. It is the case of the plaintiff that when he engaged labour on 09.06.2016 to clear the bushes in the plaint schedule property with an intention to make pucca construction in the plaint schedule property and then the 1st defendant who does not have any manner of right, title, interest or possession over the plaint schedule property tried to interfere into the plaint schedule property and tried to obstruct the labour who are working in the plaint schedule property by threatening that until and unless he pay some ransom amount he will not allow to proceed with the work in the plaint schedule property and that the plaintiff resisted the high-handed and illegal acts of the 1st defendant.
33.It is the case of the 1st defendant that he purchased a plot of land measuring 1558.33 Sq.yards covered by S.No.32/1 of Aganampudi village under the original of Ex.B.1 Registered possessory sale agreement cum G.P.A dated 13-6-2011 from his vendor Mamidi
Musalayya and others and subsequently he sold away the same to one
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Pothamsetti Veera Venkata Sathyanaraya Reddy under registered sale deed, dated 12.05.2016 and delivered vacant possession of the same to him. When the said vendee of the 1st defendant started construction of boundary walls within the four corners of the said extent, to avoid land grabbers, all of a sudden, the plaintiff and his friend came to the said property along with his henchmen and tried to obstruct the same high handedly and illegally without producing any document and also threatened the vendee of the 1st defendant with dire consequences. In those circumstances, the said Pothamsetty Veera Venkata
Satyanarayana Reddy filed caveat petition bearing COP Nos.244/2016, 245/2016 and 246/2016 on the file of the Courts of Principal Junior Civil
Judge, Principal Senior Civil Judge and Hon’ble XIII Additional District
Judge, Gajuwaka. After receipt of caveat petitions, the plaintiff filed the
present suit and I.A. No.315/2016 without impleading the said
Pothamsetty Veera Venkata Satyanarayana Reddy, who is the present owner of the said property as a party of the proceedings purposefully with a malafide intention to obtain some exparte order from the Court.
Taking advantage of the exparte order passed in I.A. No.315/2016 grantedon 30.06.2016 the plaintiff some how managed the police of
Gajuwaka and tried to trespass into the plaint schedule property. Even though the 1st defendant has taken such plea, the plaintiff did not make any effort to file rejoinder or to amend his pleadings. Finally after completion of the cross-examination of P.W.1, the plaintiff filed petition under Order I Rule 10 CPC praying the Court to implead the said
Pothamsetty Veera Venkata Satyanarayana Reddy as 2nd defendant to the suit proceedings and the same is allowed.
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34.The case of the 2nd defendant is that he purchased the schedule property from the 1st defendant and when he tried to construct compound wall around the plaint schedule property, the plaintiff along with his friend and henchmen came to the schedule property and threatened him with dire consequences. Then, the 2nd defendant filed caveat petition Nos.244/2016, 245/2016 and 246/2016 on the file of the
Courts of Junior Civil Judge, Principal Senior Civil Judge and Hon’ble XIII
Additional District Judge, Gajuwaka against the plaintiff herein and the
plaintiff herein received caveat notices and thereafter the plaintiff herein filed the present suit against the 1st defendant without showing the 2nd defendant as party to the suit proceedings.
35.On perusal of their written statements, the main contention of the 1st and 2nd defendants is that the 1st defendant sold away the plaint schedule property to the 2nd defendant much prior to filing of the present suit by the plaintiff, as such, as on the date of filing of the suit, the 2nd defendant purchased the plaint schedule property from the plaintiff, but the plaintiff even after receipt of caveat notices from the 2nd defendant, purposefully suppressed the same and filed the present suit against the 1st defendant only and obtained exparte injunction orders against the 1st defendant and thereafter under the guise of expartee injunction orders he made construction of the compound wall around the alleged plots of himself and his friend who is the plaintiff in O.SNo.115/2016 on the file of this court and therefore, the plaintiff by misleading the Court obtained exparte injunction orders against the 1st defendant purposefully and hence the plaintiff is not entitled to the equitable relief of injunction.
36.It is pertinent to note that the plaintiff as P.W.1 admitted in his cross-examination that he never saw the defendant at any point of time
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and also admitted that that he has not mutated his name either in the records of the GVMC or the Revenue Department and that he has not paying vacant land tax to the GVMC. P.W.1 further admitted that he has to obtain permission from GVMC to construct compound wall and he has not obtained any permission from the GVMC. P.W.1 further admitted that he has constructed compound wall after granting interim injunction in the suit. P.W.1 further admitted that the Court has not permitted to construct compound wall as per the interim injunction. P.W.1 further admitted that he received the caveat instituted by one Pothasetty veera
Venkata Satyanarayana Reddy (the 2nd defendant herein) stating that he purchased the schedule property from the 1st defendant even prior to filing of the present suit and the copy of the caveat was also shown to his counsel. He also admitted that he came to know the defence of the defendant in this suit through his counsel and he did not file any rejoinder in this suit after filing of written statement by defendant. He further admitted that he did not get any order or permission from the court to make construction in suit schedule property. The said admissions of the plaintiff itself strengthens the case of the defendants that the plaintiff even after receipt of caveat notices from the 2nd defendant, purposefully suppressed the same and filed the present suit against the 1st defendant only and obtained exparte injunction orders against the 1st defendant and thereafter under the guise of expartee injunction orders he made construction of the compound wall around the alleged plots of himself and his friend who is the plaintiff in
O.SNo.115/2016 on the file of this court and therefore, the plaintiff by
misleading the Court obtained exparte injunction orders against the 1st defendant purposefully and hence the plaintiff is not entitled to the equitable relief of injunction.
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37.It is well settled law that when there is a dispute as to the title for the schedule property in between the parties since prior to the date of filing of the suit, a mere suit for permanent injunction is not maintainable without asking for the relief of declaration. It is a fact admitted by the plaintiff that the 2nd defendant filed caveats against himself and his friend i.e plaintiff in O.S.No.117/2016 by claiming title over the schedule property and he received the said caveat notices prior to the filing of the present suit. So it is clear that even after having knowledge that the 2nd defendant is also claiming title over the schedule property, the plaintiff filed this suit for mere injunction against the 1st defendant only who is the vendor of the 2nd defendant without asking for declaration which is not maintainable under law.
38.As seen from the plaint averments, Sri Vijayalakshmyi Co- operative House Building Society Ltd., purchased lands under various survey numbers from various land owners under different Registered documents and after purchasing the lands the said society laid layout and obtained approval from VUDA vide Resolution No.DCCR 12 dated 17- 1-1983 and the plaintiff purchased the schedule plot in the said layout from the Sri Vijayalakshmyi Co-operative House Building Society Ltd., under the Ex.A.1 Sale deed dated 27-6-1984. In order to prove the title of his vendors he relied upon the Ex.A.2 Sale deed dated 19-5-1984 executed by Mamidi Peddinaidu and 4 others in favour of the plaintiff’s vendor i.e Sri Vijayalakshmyi Co-operative House Building Society Ltd.
As per the plaint averments, Sri Vijayalakshmyi Co-operative House
Building Society Ltd., purchased lands under various survey numbers from various land owners under different Registered documents and after purchasing the lands the said society laid layout and obtained
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approval from VUDA vide Resolution No.DCCR 12 dated 17-1-1983. But as seen from the Ex.A.2, it was executed on 19-5-1984 i.e subsequent to the laying of alleged layout by the vendor of the plaintiff and after approval by the VUDA vide Resolution No.DCCR 12 dated 17-1-1983. If it is so, how the plaintiff can connect the Ex.A.2 Sale deed with the alleged layout? There is no explanation from the plaintiff for the same and hence, it is not possible to connect the Ex.A.2 Sale deed with the plaint schedule layout plot covered by Ex.A.1 Sale deed. Except his Sale deed and Encumbrance certificates, the plaintiff did not file any documents like vacant land tax receipts etc., in to the court to prove his alleged possession over the schedule property as on the date of filing of the suit.
P.W.2 admitted in his cross examination that no agreement was reduced into writing between himself and the plaintiff for making construction in the schedule property. P.W.2 further stated in his cross-examination that he does not know the 2nd defendant, but he saw him when he tried to enter into the property. But as seen from the evidence of P.W.1 and the plaint averments, it was not mentioned that the 2nd defendant tried to enter in to the schedule property. Moreover P.W.2 admitted that previously he used to work under the control of plaintiff. Hence, it is not safe to believe the evidence of P.W.2. Coming to the evidence of P.W.3, he clearly stated in his cross-examination that he has no personal knowledge about Ex.A.1 transaction. So the evidence of P.Ws.2 and 3 does not helps to the case of the plaintiff. One more important point is that as per the plaint averments, when the plaintiff engaged labour on 09.06.2016 to clear the bushes in the plaint schedule property the 1st defendant who does not have any manner of right, title, interest or possession over the plaint schedule property tried to interfere into the plaint schedule property and tried to obstruct the labour who are
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working in the plaint schedule property by threatening that until and unless he pay some ransom amount he will not allow to proceed with the work in the plaint schedule property and that the plaintiff resisted the high-handed and illegal acts of the 1st defendant. But surprisingly the plaintiff deliberately admitted in cross examination that he never saw the defendant at any point of time. That itself strengthens the case of the defendants that the plaintiff invented the alleged incident dated 9-6- 2016 to create cause of action for this suit and as the cause of action is fictitious one, the suit is not maintainable.
39.The plaintiff simply denied the evidence of D.Ws.1 and 2 in the form of mere suggestions, which were denied by them. Suggestions however ingenious have no evidentiary value unless admitted by the witness or proved otherwise.
40.In view of the foregoing reasons, as the plaintiff failed to prove his possession over the schedule property as on the date of filing of the suit and approached the court with unclean hands by suppressing material facts, this court found no primafacie case and balance of convenience in his favour and hence the question of irreparable loss would not arose and the plaintiff is not entitled to the equitable relief of permanent injunction as prayed for. The issue Nos.1 to 3 are, accordingly, answered against the plaintiff.
ADDITIONAL ISSUE :
41.The 2nd defendant claimed that he purchased the plaint schedule property from the 1st defendant, but he did not file any document to prove that he purchased the plaint schedule property from the 1st defendant, as such, the defendants also failed to establish their
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contentions. Therefore, this Court is of the considered opinion that the defendants are not entitled to exemplary costs even though the plaintiff failed to prove his case. The additional issue is, accordingly, answered against the defendants.
42. In the result,the suit is dismissed. Under the circumstances of the case, no costs.
Typed to my dictation, corrected and pronounced by me in the open court, this the 18th day of March, 2020.
PRINCIPAL SENIOR CIVIL JUDGE,
GAJUWAKA.
APPENDIX OF EVIDENCE
Witnesses examined for
Plaintiff :- Defendants :-
P.W.1 : G.Ramachandra Murthy. D.W.1 : K.K.Chaitanya Reddy.
P.W.2 : S.L.V. Nancharaiah. D.W.2 : P.V.S. Reddy.
P.W.3 : V.Durga Prasad. D.W.3 : G.Nooka Raju. (Eschewed).
Exhibits marked for :- Plaintiff :-
Ex.A.1 : Original registered sale deed, dated 27.06.1984 of P.W.1.
Ex.A.2 : Certified copy of registered sale deed, dated 19.05.1984.
Ex.A.3 : Encumbrance Certificate, dated 19.03.2016.
Ex.A.4 : Encumbrance Certificate, dated 16.07.2014.
Ex.A.5 : True extract copy of layout plan of Vijayalakshmi Co-operative House Building Society covered by Survey Nos.16 to 19, 21, 23 and 25 to 37 of Aganampudi village issued by VUDA.
Ex.A.6 : Positive photograph showing the plaint schedule property.
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Defendants :
Ex.B.1 : Certified copy of the registered sale agreement-cum-GPA, dated 13.06.2011 bearing document No.1521/2011.
Ex.B.2 : Original Encumbrance certificate, dated 27.06.2015 for the period from 01.10.2015 to 20.08.2016.
PRINCIPAL SENIOR CIVIL JUDGE,
GAJUWAKA.
O.S. No.115 OF 2016 / 18.03.2020 28 PSCJC/GWK
Date of presentation : 13.06.2016 Date of filing : 13.06.2016
IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AT
GAJUWAKA
Present:- SRI B.SADHU BABU,
PRINCIPAL SENIOR CIVIL JUDGE,
GAJUWAKA.
WEDNESDAY, THE 18th DAY OF MARCH, 2020
ORIGINAL SUIT No.115/2016
Between :
Gunturu Ramachandra Murthy, S/o Sitarama Sastry, Hindu, aged 69 years, residing at Flat No.411, Palace Heights Apartment, Shivajinagar, Near Toll Plaza, Kurmannapalem, Visakhapatnam.
… Plaintiff .. And :
01. Karri Krishna Chaitanya Reddy, S/o Subbareddy, Hindu, aged 29 years, residing at Door No.8-74/2, Machavaram village, Ramavaram Mandalam, East Godavari.
02. Pothamsetty Veera Venkata Satyanarayana Reddy, S/o Narayana Reddy, Hindu, aged 43 years, Door No.4-46, Pasalapudi village, Rayavaram Mandal, East Godavari district.
(The 2 nd defendant was added as per orders in I.A.
No.297/2018, dated 29.11.2018).
... Defendants ..
This suit is filed by the plaintiff for permanent injunction restraining the defendants, their men and agents from ever interfering with peaceful possession and enjoyment of the plaintiff over the plaint schedule property in any manner whatsoever and for costs of the suit.
Value of the suit for the purpose of court fee and jurisdiction is
Rs.5,00,000/- and a court fee of Rs.7,426/- is paid under section 26 (c) r/w Sch.I, Art.I of APCF & SV Act.
This suit is coming before me for hearing on 06.03.2020 in the presence of Sri G.Apparao, advocate for the plaintiff and of Sri J.Prithvi
Raj and Sri B.V. Kumar, advocates for the defendants and upon hearing
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their arguments and the matter having stood over for consideration, till this day and this court doth order and:
D E C R E E
i)that the suit be and the same is hereby dismissed; and ii)that there be no costs under the circumstances of the case.
(Copy of plaint schedule is hereto enclosed to this decree).
Given under my hand and the seal of the Court, this the 18th day of
March, 2020.
PRINCIPAL SENIOR CIVIL JUDGE,
GAJUWAKA
MEMORANDUM OF COSTS
NO COSTS MEMO FILED ON EITHER SIDE.
PRINCIPAL SENIOR CIVIL JUDGE,
GAJUWAKA
Decree verified and found correct.
Superintendent, PSCJC/GWK
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Copy of schedule is hereto enclosed to this decree.
PSCJ/GWK.,