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IN THE COURT OF THE SENIOR CIVIL JUDGE AT RAJAM.
PRESENT: SMT. B.SOBHA KUMARI,
SENIOR CIVIL JUDGE, RAJAM.
THURSDAY THIS THE 12TH DAY OF APRIL, 2018.
ORIGINAL SUIT No.97/2014
Between:
1.Velidi Rajeswari, wife of late Kesava Rao, aged 60 years, Hindu, cultivation, r/o G.sigadam, G.Sigadam mandalam, Srikakulam District. 2.Velidi Nagaraju, son of late Kesava Rao,aged 45 years, restdo. 3.Velidi Haranadha Baba, son of late Kesava Rao, aged 40 years, restdo. 4.Velidi Venkata Narayana Rao, son of late Kesava Rao, aged 35 years, restdo. 5.Velidi Madhurani, d/o late Kesavarao, aged 55 years, Hindu, Teacher, R/o G.Sigadam, G.Sigadam mandalam, Srikakulam District. 6.Akiri Indira wife of Anantharao, aged 52 years, Hindu, House hold duties, r/o Rajam, Rajam mandalam, Srikakulam district. 7.Adimulam Anuradha, wife of Suresh, aged 50 years, Hindu, House hold duties, r/o Bhupal, Madhyapradesh (State).
(Plaintiffs 5 to 7 are added as LR’s of 1st plaintiff in I.A 551/2017 dated: 04122017)
... Plaintiffs.
And:
1.The Principal, Govt., Junior College, G.Sigadam,G.Sigadam mandalam, Srikakulam District. 2.The Educational and Vocational Officer, Srikakulam, Srikakulam district. 3.The Andhra Pradesh Education &Welfare Development Corporation, Rep. by is Executive Engineer, Srikakulam, Srikakulam District. 4.The Tahsildar, G.Sigadam, G.Sigadam mandalam, Srikakulam District. 5.The Revenue Divisional Officer, Srikakulam, Srikakulam District. 6.The State of Andhra Pradesh represented by District Collector, Srikakulam, at Collector’s Office, Srikakulam.
.. Defendants.
This suit is coming on 16.03.2018 for final hearing before me in the presence of Sri.R.Rama Murthy, Sri.R.Vijaya Kumar and Smt. B.V.Kalyani, Advocates for the plaintiffs, and of Sri.M.Ch.Naidu, Assistant Government Pleader for the defendants and the matter is having been stood over to this day for consideration, the court delivered the following:
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JUDGMENT
1. This suit is filed by the plaintiffs for declaration of plaintiff’s right on the plaint schedule land for consequent perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of plaintiffs over the plaint schedule land; for mandatory injunction against the defendants for demolition of the structures on the plaint plan red marked “EFCD” site of the plaint schedule land for costs of suit.
2. The averments of plaint in succinct are :
Plaintiffs 2 to 4 are sons of 1st plaintiff and one Kesava Rao is father of plaintiffs 2 to 4 and husband of 1st plaintiff. Kesavarao is no more.
The suit schedule property is absolute property of this plaintiff who has been in peaceful possession and enjoyment which is an extent of Ac 120 cents in survey No.150/11. Plaintiffs also got extent of Ac 213 cents land in survey No.150/7 in G.Sigadam village and mandalam, Srikakulam
District. The plaint schedule land is in S.No.150/11an extent of Ac 130 cents originally purchased by Puppala Jagga Rao, the maternal grand father of the 1st plaintiff purchased schedule property through registered sale deed
dated:29061926 for a valuable consideration of Rs.400/ from Naidu
Bangaramma and her minor son. The said lands were originally situated in survey No.185 and later the said survey number was revised and sub divided as survey Nos 150/11 and 150/7. Puppala Jaggarao had no issues.
Puppala Venkata Swamy is the adopted son of Puppala Jaggarao. The wife of Puppala Venkata Swamy is Puppala Sattemma. After the death of
Jaggarao his adopted son Puppala Venkata Swamy succeeded his properties.
After death of Venkata Swamy his wife Sattemma who is mother of 1st plaintiff succeeded his properties. The Zilla Parishad High School is situated in S.No.145/14 adjacent to the plaint schedule land. During the period of the mother of the 1st plaintiff, the plaint schedule land which is situated adjacent to survey no.150/7 was being used by the students of Zilla parishad high school, G.Sigadam village as play ground. The mother of the 3 1st plaintiff did not give away the land to zilla parishad high school. As it is vacant, the same was being used as play ground for the school children with the permission of Puppala Sattemma. Pupala Sattema died in the year 2003. Zilla Parishad High School and the plaint schedule site are separated by the road leading from G.Sigadam village to G.Sigadam railway station.
2. a)The 1st defendant is the principal, Junior College, G.Sigadam who is taking active part in construction of the building on the schedule site and other defendants are representing on the part of the government. In the year 2013 the government proposed to construct Junior College in
G.Sigadam, without the consent of the plaintiffs the government constructing a building on the southern side of plaint schedule land in an extent of Ac 040 cents. Though the plaintiffs protested and raised objection, the government authorities did not heed to the requests of the plaintiffs and proceeding with the construction of the building. The remaining extent of Ac 090 cents is left vacant, which is in possession and enjoyment of the plaintiffs. On 25022013 the plaintiffs complained to the
District Collector, Srikakulam by phone in “dial your Collector” about the high handed occupation of the site and proceeding with the construction on the site of the plaintiffs. On that the District Collector sent a message to the
Tahsildar, G.Sigadam to enquire into the matter. The R.I of G.sigadam enquired the matter on the direction of Tahsildar and drafted statements of the plaintiffs and submitted a report to the Tahsildar. Towards south of the plaint schedule land the government is having Ac 393 cents of land in
S.No.148/4. The plaint schedule land and the government land
Ac 393 cents being divided by a Rasta. The government is having so much land for construction of Junior Collage and running the same in
S.No.148/4. But without opting to construct junior college building, defendants occupied 40 cents of land and constructed junior college building and left the government land towards south of the building. Now trying to occupy the remaining extent of Ac 090 cents of the schedule property also. The plaintiffs sent a complaint to Hon’ble Lokayuktha, A.P., 4
Hyderabad. The Lokayukta issued order dated:27052013, ordered the district Collector, Srikakulam in turn sent an explanation to Lokayukta along with the reports of RDO Srikakulam and the Tahsildar G.Sigadam.
The plaintiffs also filed writ petition No.36899/2013 before the Hon’ble
High Court, wherein the Hon’ble High Court directing this petitioner to approach before civil court for declaration of rights. But the defendants are continuing construction of the Junior College building. They have no right what so ever either on the building site on which they are constructing, nor the vacant site of the plaintiffs situated towards north of the occupied building site in the plaint schedule land. The school building being constructed in an extent of Ac 040 cents in the plaint schedule land. The remaining extent of Ac 090 cents of land is in possession and enjoyment of the plaintiffs. The plaintiffs have got right, title, possession and enjoyment over the plaint schedule land. The plaint schedule land being used by the plaintiffs for tethering cattle and thrashing floor since long time. This plaintiff also keeping their hay heaps and storing dung cake in the plaint schedule land. The ABCD site is the plaint schedule land Ac 130 cents in survey No.150/11 and EEFCD red marked site is Ac 040 cents which was gifted to the government and constructed school building therein and ABCD is the 90 cents which is in possession and enjoyment of the plaintiffs. This plaintiffs having agricultural land in eastern side of the schedule property which is an extent of Ac 213 cents in survey No.150/7 and ABCD site is the only way to reach his agricultural land. This defendants never denied title of the plaintiffs over the schedule property either plaintiffs and their ancestors donated ABCD land to the government for the High School purpose or for the junior college purpose. As the plaintiffs live only on agriculture, they need the plaint schedule for their passage and for their agricultural usage. The government has not acquired the plaint schedule land from the plaintiffs or from their ancestress, hence present suit is filed for declaration. Hence the suit.
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3.The 4th defendant filed written statement and the same was adopted by the defendants 1 to 3 and 5 to 7 by denying allegations of the plaintiffs and submitted that it is true Puppala Sattemma and Puppala
Venkataswamy are parents of 1st plaintiff and Kesavarao is husband of 1st plaintiff. It is true plaintiffs 2 to 4 are children of 1st plaintiff. Puppala
Venkataswamy is having son by name Puppala Jagadeeswara Rao and having daughter Rajulamma @ Rajeswari i.e., 1st plaintiff. Puppala
Jaggarao never adopted the Puppala Venkataswamy. The said Puppala
Jaggarao is having son and daughter. The Puppala Venkataswamy not at all adopted son of Jaggarao. Puppala Venkataswamy is no way concerned with the plaint schedule property covered in S.No.15011. The plaintiffs are invented and created all the allegations for the purpose of filing of the suit with an evil intention to grab the government property that is the plaint schedule property. Neither plaintiffs 1 to 4 nor Puppala Venkataswamy and his wife Sattema is no way concerned to the plaint schedule property.
Puppala Jaggarao gifted the land covered in S.No.150/11 to the government for construction of Z.P High School, G.Sigadam. The mother of the 1st plaintiff Sattemma did not give any land to the government for construction of Z.P high School as she has no land covered in S.No.150/11.
The government proposed to construct Junior College by the side of the Z.P
High School with an estimated cost of Rs.10000 lakhs. As per the instructions of the government, the 4th defendant allotted the site in
S.No.150/11 with an extent of Ac 130 cents for the construction of the junior College vide RC No.29/13 A dated: 30012013 by addressing a letter to the District Collector, Srikakulam. The government approved a plan and proposed to construct a government junior college building under NABARD,
RIDFXVIII. The Engineering Department has completed the construction of the junior college building as per the instructions of the government and handed over the same to the Principal, Government Junior college,
G.Sigadam for running the college in the said building. The plaintiffs never raised any objection for construction of building. There is no site towards 6 the southern side of the plaint schedule land with an extent of
Ac 040 cents. There is a vacant site situated in S.No.148/4 with an extent of Ac 393 cents with is classified as Gedda vagu situated towards south of the plaint schedule land and there is a rasta in between gedda vagu and college site. The plaint schedule land is a government land and the defendants proceeded with the construct of the government junior college building on the part of the plaint schedule land. 3rd plaintiff filed a petition against the defendants before the Hon’ble Lokayukta wherein District
Collector requested to submit detailed report. Accordingly Collector submitted a report basing on the report given by RDO and MRO. wherein
Hon’ble Lokayuktha Court directed to approach civil court. Plaintiffs also
approached Hon’ble High Court by filing a writ petition but the same was dismissed with a direction to approach civil court to seek declaration of title by fling a suit. . Z.P High School building was constructed in entire extent of Ac 130 cents, there is no remaining extent of Ac 090 cnets which is allegedly in possession of the plaintiffs. The plaintiffs have no right, title, possession over the schedule property. Plaint schedule land is a government land which is situated in S.No.150/11 with an extent of Ac 130 cents of
G.Sigadam village. As per the SLR the pattadar is one Puppala
Viswanadham, the plaintiff’s have no right title over the plaint schedule land. The Z.P High School is situated in S.No.140/4 with an extent of Ac 3 66 cents towards south of the plaint schedule land, there is gedda vagu with an extent of Ac 393 cents. There is a cart lane situated in between the
S.No.148/4 and S.No.150/11, 112/15, 16 and 18 with an extent of
Ac 014 cents which lands from BT road to S.No.174. All the riots passage through the said cart lane to go their fields likewise plaintiffs. There is no
Rasta of gorja in S.No.150/11 to go to the fields of the plaintiffs that is in
S.No.150/7. The plaintiffs have no manner of right, title, possession over the plaint schedule site or buildings. It is only vested to the government.
The 1st plaintiff filed suit against the brother Puppala Jagadeeswara Rao, son of Venkata Swamy for partition of the joint family properties in to 3 7 equal shares and allot 1/3rd share to her in vide OS 13/2012 on the file of the Senior Civil Judge, Rajam. In that suit O.S 13/12 filed by the plaintiff but schedule property was not shown in the said partition suit. Puppala
Venkata Swamy is the father of the 1st plaintiff and one Puppala Sattemma is the mother of the 1st plaintiff. The Puppala Venkataswamy and
Settamma are having son by name P.Jagadeeshwararao. Pupala
Venkataswamy died in the year 1948. The Puppala Sattemma who is wife of the Venkataswamy looked after the properties of the Venkataswamy after his death. The plaint schedule property is not at all a joint family property of the Puppala Sattemma and it belongs to the Puppala Viswanadham as per SLR of G.Sigadam village. The 3rd plaintiff filed a complaint against the defendants before the Lokayuktha, AP Hyderabad, the defendants 4 to 6 filed their report before the Hon’ble Lokayukta. The Hon’ble Chairman,
Lokyukta dismissed the complaint filed by the 3rd plaintiffs. Again the plaintiff filed Writ petition against the defendants in the suit. The Hon’ble
High Court dispose of the writ petition with a direction to approach competent civil court for declaration of title and other appropriate relief by filing a civil suit. The 3rd plaintiff is a petition monger and with an evil intention go grab the property of the government filing a civil suit. The plaintiff has no manner of right, title, possession over the schedule land.
The property covered in sale deed dated:29061926 covered in survey
No.185 of G.Sigadam village is not at all a plaint schedule land. The government constructed high school building in the year 1959 to 1960 covered in S.No.145/4 and 150/11 since then the plaint schedule land is in the possession and control of the school authorities. No private persons having any right, title possession over the plaint schedule land. The government sanctioned government college in G.Sigadam with an estimated cost of Rs.100 lakhs. Approval was given and sanction orders were passed by the District collector towards letter to the MRO ,in turn the Tahsildar
G.Sigadam addressed a letter to the Head master, ZPH school G.Sigadam pertaining to transfer of land from school authorities to Board of 8 intermediate. The Head Master ZPH school, G.sigadam address a letter to the Chief Executive Engineer Office, Z.P Srikakulam stating that the survey
No.15011 with an extent of Ac 130 cents is proposed for construction of new Junior College Building, winch is under control of Zilla Parishad,
Srikakualm. The Chief Executive Officer, Zilla parishad, Srikakualm gave permission for construction of new Junior College in the premises of Z.P
High School, G.Sigadam on 21022013. In turn the Tahsildar, G.Sigadam handover the site to the Executive Engineer, Education &Welfare Dept.,
Srikakulam for construction of the Junior College building. The engineer authorities constructed the building as per the approved plan and handover the building to the 1st defendant that is Principal government Junior
College, G.Sigadam for running college. The Junior College is running in the Newly constructed building on the plaint schedule land and it is in the possession and enquiry of the college authorities. The plaintiffs have no right, title over the schedule property, the suit is not maintainable under law. Hence prays for dismissal of the suit.
4.On the basis of above pleadings, the following Issues were settled for trial.
1. Whether the plaintiffs are entitle for decree for declaration of the plaintiffs right on the plaint schedule land and for consequential perceptual injunction, restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule land ?
2.For mandatory injunction against the defendants for demolition of the structures on the plan red marked EFC and D site of the plaint schedule land?
3. To what relief ?
5.To prove the case of plaintiffs, Pw’s.1 to 3 were examined and
Ex.A.1 to A.14 were marked on their behalf. On behalf of defendants,
DW’s.1 to 3 were examined and Ex.B.1 to Ex.B.3 were marked.
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6.Arguments of both sides heard.
7.Issue No.1 :
It is the case of the plaintiffs that the suit schedule property is absolute property of maternal grandfather of the 1st plaintiff Puppala
Jaggarao who purchased the same through registered sale deed on 29061926. As Puppala Jaggarao is not blessed with any issue, he adopted
Puppala Venkata Swamy who is the father of the 1st plaintiff and given in marriage of him with Puppala Sattemma. After the death of Puppala
Jagarao, Puppala Venkataswamy succeeded his properties. After his death
Puppala Sattemma succeeded properties of the Puppala Jaggarao and
Venkataswamy. The mother of the 1st plaintiff did not given any property to the government for the construction of the college building, it has been managed by the Pupela Sattemma and she has given permission to use the schedule property as a playground as it is vacant site. She died in the year 2003, now the defendants without any right, title over the schedule property has constructed school building in an extent of 40 cents, out of Ac 130 cents and did not allow this plaintiff to proceed through the schedule property to reach lands of her in survey No.150/7.
8.On contra it is contended by the defendants that the suit schedule property is government land. Even as seen SLR register the northern side of the land is shown as government land, the original purchaser Jaggaro has given land to the government for the college.
Subsequently on due approval obtained by the government the D3 has constructed the school building in the schedule property for which this plaintiff never made any objection, now plaintiff No.3 who is petition monger has created present litigation to grab the property of the government.
9.On considering both rival contentions as the suit is filed for declaration and consequential permanent injunction and for mandatory 10 injunction to demolish constructions in the schedule property. The entire onus is on the plaintiff to prove the title over the schedule property since the era of Jaggarao as on the date of filing of the suit.
10.It is the case of the plaintiffs as per plaint averments and evidence of them that originally suit schedule property purchased by the
Puppala Jaggarao through registered sale deed on 29061926 since then he has been in possession and enjoyment of the property who is maternal grandfather of the 1st plaintiff Rajeswari and he adopted Venkataswamy who is father of the 1st plaintiff as he had no issues. After the death of
Jaggarao his property devolved on his adoptive son Venkataswamy who enjoyed the same during his life time . After death of Venkataswamy said property devolved on Sattemma who is mother of the 1st plaintiff and she managed properties. Sattemma never given any schedule property to the government at any point of time which falls in survey No.150/11 old survey
No.185 but now defendants government without having any right or title constructed the college building in the part of the schedule property in an extent of 40 cents.
11.To prove the same 1st plaintiff himself examined as Pw.1 and deposed before the court that she acquired schedule property from her parents Venkataswamy and Sattemma, after death of her father
Venkataswamy, Sattemma has managed property and she never gifted schedule property to the government at any point of time for using as a play ground by the school children. while the government has making constructions in the schedule property she made an objection and her son has filed petition before Lokayuktha and writ petition before Hon’ble High
Court. The government is not having any right or authority to construct school building without consent of the original owner thereby it is liable to be removed. Plaintiff also examined Pw.2 and Pw.3 who are 3rd parties to the proceedings who deposed that schedule property is originally purchased by Jaggarao which is an extent of Ac 130 cents in survey No.150/11, after his death his adoptive son Venkata Swamy came into possession , on death 11 of Venkataswam his wife and Sattemma managed property who is mother of the 1st plaintiff, on her death the same was devolved as these plaintiffs.
12.On contra to the evidence of the Pw’s 1 to 3 it is the case of the defendants that is government that the suit schedule property is the government land which was given by the Jaggarao in and about 1958 and 1961. Since then the government using said land, thereafter obtained approval from the government and constructed building therein.
13.To prove the same, 1st defendant Principal of Junior College examined himself as Dw.1 and deposed before the court that government had constructed junior college building in schedule property. Previously as the said site is vacant, the farmers used to go through the land in survey number 150/11 to reach their agricultural fields but on construction of the building there is no possibility to use the land in survey No.150/11 to reach their agricultural fields they had a separate path way in S.No.148/4 P to reach their respective lands. After obtaining approval from the government the D.3 has made constructed building in the schedule property at that time the plaintiff never made any objection . Defendant also examined Dw.2 who is MRO of G.Sigadam who deposed that on receiving instructions from the government, MRO has given report to the Revenue Divisional Officer that the suit schedule property is government land and there is no possibility to use the said land as a passage to the agricultural field by near by farmers and the school authority has been using the said land since 1958 itself to the knowledge of the all the villagers.
14.Defendants also examined Dw.3 who is Mandal Surveyor who deposed that the suit schedule property is government land, the SLR also reflecting that the classification of the land is the government land wherein the government has constructed college after obtaining proper approval from the government along with sanction of funds. This plaintiffs not having any right or title over the schedule lands.
15.It is the case of the plaintiffs as per avermetns as well as evidence of them that the suit schedule property is originally owned by the 12 maternal grand father of the 1st plaintiff Rajeswarai who purchased the same through registered sale deed on 29061926 since then said Jaggarao has been in possession and enjoyment of the schedule property thereafter as he had no issue, he adopted Venkataswamy who is father of the plaintiffs, after the death of Jaggarao, Venkataswamy manged entire properties of
Jaggarao which was devolved on him.
16.We all know in a suit for declaration, the entire onus is on the plaintiffs to establish the clear title, possession over the schedule property.
As seen record the plaintiffs have mainly relied on Ex.A.1 registered sale deed stands in the name of Jaggarao dated:29061926 to say the suit schedule property is purchased by maternal grand father of the 1st plaintiff.
As seen Ex.A.1 it shows Puppala Jaggarao who is son of Venkataswamy purchased an extent of Ac 130 cents out of Ac 758 cents in survey no.185 from Bangaramma and her minor son Suryanarayana. Wherein as seen schedule there are two items having separate boundaries. But there is no specific measurements for item Nos.1 and 2. The total extent of both items were shown Ac 130 cents in survey No.185. It is true as seen record there is no any evidence to say the new survey number for the 185 is 150/11. But as seen evidence of the Dw.1 who is Principal has categorically admitted that the new survey number for the schedule property is survey No.150/11 and the schedule is an extent of Ac 130 cents. Even there is no dispute with regard to the identity of the schedule property and its existence on land. So that it is evident from record the new survey number for 185 is S.No.
150/11. There is a clear evidence of the Dw.1 that there is a land in survey
No.150/7 which belongs to plaintiff family as per the record the said land in the name of Puppala Jagadeeswararao. It was came on record from the evidence of the Pw.1, the said Puppala Jagadeeswararao is none other than brother of 1st plaintiff Rajeswary, she also admitted she filed a suit for partition against said Puppala Jagadeeswararao in vide OS 13/12. so that it is evident in surety No.150/7, this plaintiffs family is having a property.
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17. It is the case of the plaintiffs that the said Puppala Jaggarao who is son of Venkataswamy is maternal grand father of the 1st plaintiff and he had no issues, so that he adopted father of the 1st plaintiff
Venkataswamy. But once the defendant contended that the said Jaggarao son of Venkataswamy is having one son and daughter and he never adopted
Venkataswamy then it is onus on the plaintiffs to establish Venkataswamy is adoptive son of Jaggarao. But as seen record absolutely there is no any record to show Puppala Venkataswamy is adopted son of Puppala
Jaggarao. Moreover since the beginning it is the case of the plaintiffs that the suit schedule property was purchased by maternal grand father of the 1st plaintiff. if that is so Puppala Jaggaao should be father of Sattemma who is mother of 1st plaintiff. But as seen averments of the plaint the said Puppala
Jaggarao is fatherinlaw of Sattemma who married adoptive son of
Jaggarao that is Venkataswamy as per the case of plaintiffs. Even otherwise it is not the case of the plaintiffs Puppala Jaggarao having daughter and
Sattemma is daughter’s daughter of Puppala Jaggarao. So as to say she married adoptive son of Puppala Jaggarao i.e Venkataswamy. Once it is the case of the plaintiff that Puppala Jaggarao is not blessed with any issue, he adopted Venkataswamy, then Puppala Jaggarao is father in law to the
Sattemma. Once Puppala Jaggarao is father inlaw to the Sattemma then the relationship between 1st plaintiff and Puppala Jaggarao is paternal grandfather of the 1st plaintiff but not maternal grandfather of the 1st plaintiff. even otherwise absolutely there is no evidence to show father of the 1st plaintiff Venkataswamy is adoptive son of Puppala Jagga Rao, so as to say all his properties devolved on Puppala Venkataswamy. Further more absolutely there is no evidence what properties are devolved on Puppala
Gagga Rao in turn those are devolved on Satemma.
18.Moreover it was came on record that 1st plaintiff is also having a brother Jagadeeswararao if at all we believe the entire property of
Puppala Jaggarao devolved on Venkataswamy father of the 1st plaintiff on his intestate death the properties of him will devolved upon his wife 14
Sattemma, Rajeswary i.e.,1st plaintiff and Jagadeeswararao equally. As seen record this 1st plaintiff has filed suit for partition against said
Jagadeeswararao. But to the surprise absolutely no record was filed by the plaintiffs to say what properties were partitioned between Rajeswari and
Jagadeeswarao, whether schedule includes in the said partition suit or not.
But those facts are elicited in cross examination of PW1. There is a clear evidence of the Pw.1 that the suit schedule property is not shown in the schedule of vide OS 13/2012, as the same is separate property from his joint family lands. The evidence of the Pw.1 that the suit schedule property is separate property from their joint family property clearly supporting the case of the defendants that original owner Jaggarao has given schedule property to the government in and around 1958 itself. The said fact is apparent from the communications between MRO with Revenue Inspector and MRO with Revenue Divisional Officer and RDO with Collector as per
Ex.A.3 to Ex.A.6.
19.On perusal of Ex.A.3, the letter addressed by the MRO to the
District Collector on 01042013 disclosing that 3rd plaintiff who is son of 1st plaintiff Rajeswari has made a complaint to the Collector in “dial our collector program” about the constructions made in schedule property by the government that is construction of Junior College in schedule property.
on which the Collector has call for information from the Mandal Revenue
Officer. In turn Mandal Revenue Officer has given information as that of
Ex.A.3 that 3rd plaintiff has made a claim that the suit schedule property is the property of maternal grand mother of him Sattemma, in the year 1958 to 1960 she has given said property orally to the Z.P High school for the purpose of play ground but as per the SLR register the said property is classified as government land. however MRO agreed to give an extent of
Ac 014 cents for passage to 3rd plaintiff to reach his land in survey
No.150/7 but he totally refused to receive said 14 cents and claimed right over Ac.040 cents, so as to use as a thrashing floor and cattle shed along 15 with passage but it was not possible as there are constructions in the property.
20.Again the very same MRO as per Ex.A.4 addressed a letter to the
Collector in view of filing of the application by the 3rd plaintiff in
Lokayouktha that he acquired property from his maternal grand mother. But he came to know Satttemma who is maternal grand mother of applicant that is 3rd plaintiff got an extent of Ac 130 cents in survey No. 185, new survey No.150/11 through the registered sale deed and in the year 1958 to 1960 the same was orally gifted to Z.P School G.Sigadam for the purpose of play ground. At present there are constructions are going on and government decided to construct Junior College building. He further stated in the letter that the nearby owners has been using their field bund as a path way to reach their fields and there is no specific path way is required.
In the same way on perusal of Ex.A.5 RDO sent a letter to the Collector,
Srikakulam stating that as per the directions of the Collector he has directed
MRO to send report. Basing on the report given by the MRO and on perusal of the record he found that the applicant Haranadhababu that is 3rd plaintiff has made a claim over the Ac 130 cents in survey No.150/11 as it is maternal grandmother property, but same was given by Sattemma orally for playground to the G.Sigadam Z.P High School in the year 1958 to 1960 so that since then it has been using by the government, later on as per sanction given by the government now construction work is going on in the schedule property. As seen Ex.A.6 by considering Ex.A.3 to Ex.A.5 the
Collector has addressed a letter to the A.P Registrar Lokayukta that the suit schedule property was purchased by Puppala Jaggarao through registered sale deed dated:10061926, later on it was devolved on Sattemma. She has given orally to the Z.P school as a play ground but there is no written gift deed. In that effect when it was directed applicant to produced documents, he failed to produce gift deed and there is a separate path way in survey No.148/4P, through which villagers has been using said path way to reach their fields, so that there is no necessity to draw any separate 16 passage through survey No.150/11. Even it is not possible to lay any path way as already constructions are there.
21. Through these communications between MRO and Collector clearly indicating 3rd plaintiff has made claim before the revenue officials as if suit schedule property is property of his maternal grand mother
Sattemma and the same was given by her orally to the Z.P school for using as a play ground, now he wants to use the part of the schedule property as a passage to reach his fields situated in S No.150/7. But coming to the plaint, plaintiffs came up with the case after death of Venkataswamy his wife
Sattemma succeeded his properties and the land in survey No.150/11 has been using by the students of Zilla Parishad and mother of the 1st plaintiff that is grand mother of the 3rd plaintiff never given any consent to the Z.P
High School. So that this plaintiffs categorically denying the fact that the mother of the 1st plaintiff Sattemma has given schedule property to the Z.P
High School for using as play ground. But the reality is otherwise which was brought on record from the application filed by the 3rd plaintiff before the
Hon’ble High Court in Writ Petition as per Ex.A.7. As seen Ex.A.7 in para
No.2 of the application it was averred by the 3rd plaintiff that he is original owner and possessor of land in a extent of Ac 130 cents in survey
No.150/11 and Ac 213 cents in survey No.150/7 originally purchased by his great maternal grand father in the year 1926 and 1928 and its old survey number No.185 which was devolved on him by way of inheritance.
In the same way in para No.3 he submitted in Ex.A.7 that during period of his grand mother Puppala Sattemma in 1958 and 1960 schedule land in an extent of Ac 130 cents in survey No.150/11 was being used by the students of Zilla Parishad school situated in survey No.140/5 and the petitioners grand mother Smt Sattemma did not objected for the same.
Similarly the petitioners family also using part of the schedule property but there is no specific demarcation in between enjoyment of the students of
Z.P High School and family of the applicant. With the above averments in
Ex.A.7 clearly indicating this 3rd plaintiff has categorically admitted though 17 the property was purchased by his great maternal grand father Puppala
Jaggarao it was ultimately devolved on his grand mother Sattemma who has given permission to the Z.P High School to use as a play ground in and around 1958 itself. The above admissions made by P3 shows during the era of Sattama she has given schedule property to the government way back in the year 1958 and 1960 itself. Subsequently unless and until this government has proposed to construct building in the schedule property either Sattemma or her successors 1st plaintiff or her sons did not made any objection or obstruction for the possession and enjoyment of the schedule property by the government and using the said property as play ground for the Z.P.High School.
22. It is admitted fact that the total extent of land in survey no.150/11 is Ac 130 cents and to the west of entire land there existed a road. Above the road there existed Z.P High School in survey No.145/4. In the same way on the southern side to the schedule property there existed a road above the road there is poramoke land in survey No.148/4. On the eastern side land belongs to the public that is zeroith land. The eastern side boundary to the schedule property consisting of zeroith land of 3rd patties
Korikana Ramulu and land belongs to the plaintiffs family in survey
N.150/7. So that on the south and western side of the schedule property there existed a government lands and on east and north side of the schedule property there existed zeroith lands.
23.On clear admission made by the revenue authorities in view of communications between them as per Ex. A.3 to Ex.A.6 and evidence of the
Dw.1 coupled with Ex.B.1 SLR register showing Rythpunja clearly indicating originally the schedule property is patta land that is zerioth land. As seen
Ex.A.1 register sale deed it is apparent that the said land was purchased by
Puppala Jaggarao, son of Venkataswamy. Though it is the case of the plaintiff the said Puppala Jaggarao is adoptive father of Venkataswamy.
Absolutely there is no record to that effect. As seen Ex.A.6 letter addressed 18 by the Collector to the Lokayuktha register he said that the said Puppala
Jaggarao is son of Venkataswamy but there is no record to that effect also to say Puppala Jaggarao is son of Venkataswamy. In the same way absolutely there is no record or evidence to say the said Puppala Jagga Rao is adoptive father of Venkataswamy father of 1st plaintiff. As per the case of the plaintiffs the said Puppala Jaggarao having no issues at all but, it was contended by the defendants that the said Puppala Jaggarao having son and daughter and there is no need to adopt Venkatswamy and he is no way related to the schedule property. If that is so it is the onus on the plaintiff to place cogent and reliable evidence to show that Puppala Jaggarao had adopted Venkataswamy. At this juncture this court wants to rely on decision reported in 1983 AIR 114, between Madhusudan Das vs Smt. Narayani
Bai And Others. Where in it was held by honorable apex court that:
“It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and a its validity. A.
Raghavamma and Anr. v. A. Chanchamma and Anr.(1) It is also true that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth. Kishori Lal v. Chaltibai.(2) Nonetheless the fact of adoption must be proved in the same way as any other fact.
“For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption. Shoshinath v. Krishnasunder.(3)
In Lakshman Singh v. Smt. Rupkanwar,(4) this Court briefly stated the law.
thus:
"Under the Hindu Law, whether among the regenerate caste or among
Sudras, there cannot be a valid adoption unless the adoptive boy is 19 transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him.
The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it."
24.On considering the above decision it is onus on plaintiffs to place cogent and reliable evidence showing adoption of Venkataswamy and natural parents of him handed over him to adoptive parents and performing data homa. But as seen record absolutely there is no any record showing observation of ceremony which is essential for adoption. It is true defendants government admitted that Sattema is original owner of the property and she has given schedule property orally to the government in between 1958 and 1960. The admission of the defendants may not relieve the plaintiff to prove flow of the title from the Puppala Jaggarao to the 1st plaintiff. It was already discussed when Sattemma Married Venkataswamy,
Puppala Jaggarao will become father inlaw to her. So that whatever the property acquired by Sattemma is through her husband then contention of the plaintiffs that originally the great maternal grand father of 3rd plaintiff
Jagga Rao has purchased property is false.
25. Even if we believe Sattemma has got any right over the property, as per the admission made by the 3rd plaintiff in Ex.A.7 application
before the writ petition clearly indicating the said Sattemma has given
property to the government for using the same as playground for Z.P High
School situated at the western side to the schedule property. Unless and until this 3rd plaintiff has filed an application before revenue authorities in
March, 2013 there is no any objection and obstruction for the use and enjoyment of the schedule property by the government. That is why on 20 perusal of Ex.B.1 SLR register indicating the land in survey No.150/11 is government land. Though in the 2nd column of the register it is shown as
Rythpunja. In the same way on perusal of Ex.B.3 No.3 adangal for the fasili 1423 that is for the year 2013 as on the date of filing of the suit and representation made by the 3rd plaintiff before the revenue, lokayuktha and
before the Honble High Court as per writ petition, the land in survey
No.150/11 is mutated in revenue records as the government land. It is true there is no any record when the patta land was converted into the government land. But it is fact that Sattemma has given schedule property to the government for using the same as a play ground. The fact that
Sattemma has given schedule property for play ground also admitted by the 3rd plaintiff, in application filed by him before lokayuktha as per Ex.B 3. On perusal of Ex.B.3 in page No.2 para No.7 it is stated by the 3rd plaintiff that merely because land is given by Sattemma orally for the use of play ground it cannot be recorded as a government property in revenue records. which itself clearly establish the permission given by the Sattema for using of the land by the government as play ground of Z.P. High School.
26.We all know the claim of right and interest in relation to property on the basis of possession has been recognized in all legal system.
Uninterrupted and uncontested possession for specific period of time hostile to the original owner is constitute to be one of the legal recognized mode of acquisition of ownership, the prescription period of limitation for recovery of possession are for recolonization of right and interest of true owner should be within ambit of section 27 of Limitation Act.
27. As per section 27 of Limitation Act if the person failed to initiate legal proceedings on the hostile possession of the 3rd party within law prescribed the right to seek ownership over the property will be extinguished. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. in the 21 instance case it is admitted fact that this plaintiff is having property on southern side of schedule in S.No. 150/7 and these plaintiff cultivating the same for all these years passing through this schedule property. there is a clear evidence of the DW1 and DW2 that farmers nearby used the schedule property to reach their respective lands as the schedule is vacant site, but later on as government constructed building, now there is no possibility to use schedule property. The evidence of DW1 and DW2 clearly indicating that these plaintiffs had first class information that school using the schedule property since 1958 more than 50 years and they noticing the same every day. But as admitted there is no any objection or obstruction from the side of plaintiff. At this juncture this court wants to rely on decision in Appeal (civil) 11483 of 1996 Amrendra Pratap Singh vs Tej
Bahadur Prajapati & Ors on 21 November, 2003 where in honourable apex court held that:
“The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and reenter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the 22 loss of desire on the part of the rightful owner to assert his ownership and reclaim possession.”
28.On considering the above decision as per the admissions made by the plaintiff themselves Sattemma has given permission to use schedule property way back in between 1958 to 1960. As per evidence of plaintiff
Unless and until government making efforts to construct a college, they did not raise any objection having note of the fact that the said property has been using by the government as a playground for school children. Even in the partition suit which was filed by 1st plaintiff also schedule of this suit was not shown and there is a clear evidence of PW1 that schedule property is not family property so that she did not shown property in partition suit.
So that even on the date of filling of partition suit also this plaintiffs know that schedule is given by mother of 1st plaintiff to government , which is using as playground. They recognized hostile possession of the government over the property in survey No.150/11 and did not raised any objection or obstruction for the possession of the government. They kept quiet nearly for 53 years and now came up with present suit as if Sattemma never given any permission to the schedule property and it is acquired by plaintiff by inheritance. Then doctrine of acquiesce came into play. Acquiescence occurs when a person knowingly stands by without raising any objection to the infringement of his or her rights, while someone else unknowingly and without malice aforethought acts in a manner inconsistent with their rights.
In the instance case having knowledge that mother of 1st plaintiff has given schedule property to school and noticing they are using the same these plaintiffs did not raised any objection, unless until government raised building in it. The doctrine of acquiescence can be attracted to a case only when the person knowing certain facts to be correct either keeps silent or does not take any action when any action in violation or disregard of the aforesaid facts is being taken. These plaintiffs kept quite nearly 5 decades knowing government has been using the schedule property. There is a clear evidence of PW1 and Dw1 and 2 that plaintiff had been seeing schedule 23 property for all these years since 1958 and had taken no action to stop it, then the doctrine of acquiescence would definitely have been attracted.
Acquisence amounts to acceptance of right of government. Even as seen
Ex B1 to B3 SLR and No.3 adangal shows that nature of land is classified as government land, indicating the land standing possession and enjoyment of schedule property by government and silence on the part of plaintiff.
29.Admittedly Pw.1 has filed suit against her brother
Jagadeeswararao in vide OS 13/2012. There is a clear admission made by the Pw.1 that she never included schedule property in the partition suit filed by her against her brother and she gave explanation in her evidence that as the schedule property is not form a part of joint family property, she never shown said property. The very admission of the Pw.1 itself clearly indicating that she is having knowledge that the schedule property is not joint family property which was already given to the government by the
Sattemma. Thereby she never made any claim over the schedule property for the partition against her brother. Even as seen evidence of the Dw.2 he categorically deposed that as on today Puppala Jagadeeswarao has been in peaceful possession and enjoyment of the land in survey No.50/7 who is none other than brother of 1st plaintiff. So that it was evident from the evidence of Pw.1 and admission made by the P.3 in the representation made by him before Collector Lokayuktha and Hon’ble High Court in Writ Petition that the schedule property was already given by Sattemma to the government for using as play ground. So that Sattemma has given schedule property for philanthropic purpose to use the same as a play ground for the students of Z.P High School. When the land is given for philanthropic purpose which was accepted by the government and enjoying possession though no right or ownership is passed it will enjoy the property as absolute owner. Then in the subsequent event the original owner is not entitled to seek right ownership over the said property.
30.It is the case of the plaintiffs that both the properties which are in survey No.150/11 and 150/7 were purchased by Jaggarao in the year 24 1926 and 1928 which were ultimately devolved on Venkataswamy and subsequent to the Sattemma. Admittedly they never made cultivated the schedule property at any point of time there was a clear admission made by the Pw.1 in her evidence and application filed by the 3rd plaintiff as per
Ex.A.7 that they cultivated land in survey No.150/7 only. They categorically admitted they are not cultivating schedule property. Once these plaintiffs are cultivating land in survey No.150/7 which is cultivable land and schedule is adjacent to the survey No.150/7 is also a cultivable land. Why plaintiff did not made any cultivation in schedule property for all these 53 years is question of act. which itself gives adverse inference that as land was already given to the school by Sattema, they did not cultivated schedule property. Indicating these plaintiff neither cultivated land or used the same for any other purpose as alleged by them for tethering cattle and placing of agricultural appliances. As seen the representation given by the
District Collector to the Lokayuktha he saw that prior to the making construction, suit schedule property is vacant site using by children as play ground. The farmers near by the schedule used to pass through schedule property to reach their fields. Subsequently as they constructed college they are using the passage in survey No.148/4 P, as there is no possibility to use schedule property that is why while making representation by 3rd plaintiff, he made claim that at least they are allowed to use passage and some of the schedule as a thrashing floor so as to enjoy their property situated on the eastern side of the schedule property. The very contention raised by the plaintiffs itself clearly indicating they had a first class information that
Sattemma has given schedule property to the government as a playground and this plaintiffs have used schedule property along with other farmers on the eastern side to reach their fields situated in survey No.150/7. If that is so having known about the possession of the government over the land purchased by Jaggarao for all these 53 years to the hostile to the original owner then right of him is extinguished. Government whose right and ownership is perfected by way of long standing possession as possession is 25 9 points to the title.. Even otherwise absolutely there is no single piece of document filed by the plaintiffs to show after purchasing of the property by the Jaggarao in the year 1926 the predecessor in title of the plaintiff has been in possession and enjoyment of the schedule property, so as to say only part of the schedule property has been using by the government as a play ground.
31.It is true as seen Ex.A.14 and Ex.A.13 Encumbrance certificate showing that there are no transactions from the day of purchasing of the property by the Jaggarao over the sedulous property but it was categorically admitted by the plaintiffs themselves that the schedule property was orally given by the Sattemma to the Government. Then merely because there is no any entries in encumbrance certificate does not supported the case of the plaintiffs that the title flows from the Jaggarao to the Sattemma in turn to all these plaintiffs in the absence of proving fact of adoption. Plaintiffs utterly failed to prove the flow of title from Jaggarao to Sattemma and aspect of adoption of Venkataswamy by Jaggarao so as to say entire property of the Jaggarao which was purchased by him through Ex.A.1 is devolved on Venkataswamy. even otherwise also on clear admission made by the plaintiffs that Sattemma has given property to the government in between 1958 and 1960 having knowledge of hostile possession of the government these plaintiffs kept quiet for 53 years long time now they cannot revert back and say that originally schedule property is belongs to plaintiffs, their right has been extinguished and their right to claim possession is barred by limitation. Even there is no any single piece of document to show the possession of these plaintiffs over the schedule property or part of the schedule property as claimed by them then at any stretch the plaintiffs are not entitled for declaration and consequential permanent injunction over the schedule property. Accordingly issue is answered.
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32. Issue No.2:
Once plaintiffs have utterly failed to prove that they are absolute owners and title flows to him from Puppala Jaggarao to Sattemma. The question of demolition of construction which were already made by the government does not arise and plaintiffs are not entitled for mandatory injunction as prayed for . Issue answered accordingly.
33.Issue No.3:
In the result, suit is dismissed without costs.
Dictated to the Personal Assistant , transcribed by her corrected
and pronounced by me in open court, this the 12th day of April, 2018.
Senior Civil Judge,
Rajam. Appen dix of evidence Witnesses examined. For Plaintiffs:
P.W.1:Velidi Rajeswari P.W.2: Puppla Sarath Chandra Bose P.W.3: Sirugudi Arjuna Rao
For Defendants:
Dw.1/Chindrala Appalaswamy Dw.2/Tirupathi Narasayya Dw.3/Chandramahanthi Krishnarao
Exhibits marked. For Plaintiffs:
Ex.A.1/ Registered sale deed in favour of Puppala Jagga Rao
dated:29061926.
Ex.A.2/ Death Extract of Puppala Sattemma dated:16112003 Ex.A.3/ Report in R.C No.292013 submitted by the Tahsildar, G.Sigadam to the District Collector, Srikakulam on the complaint given by the plaintiffs in “Dial your Collector dated:25032013.
27
Ex.A.4/Report in R.C No.292013 submitted by the Tahsildar, G.Sigadam to the District Collector, Srikaulm on the explanation asked from “Lokayukta” on complaint given by the plaintiffs in “Lokayukta”
dated:19072013.
Ex.A.5/Report in R.C No.2304/2013 submitted by the RDO, Srikakulm to the District Collector, Srikakulam on the complaint given by the petitioners in “Lokayutha” dated:27072013. Ex.A.6/Report in R.C No.15002013/E2 submitted by the Tahsildar, G.Sigadam to the District Collector, Srikakulam on the complaint given by them in “Lokayuktha” dated:02082013. Ex.A.7/Copy of Writ Petition filed by the plaintiffs before A.P High Court
dated:25112013
Ex.A.8/Copy of order dated:17122013 in W.P No.36899/2013. Ex.A.9/Copy of explanations submitted by the plaintiffs before “Lokayukta
dated:25022014.
Ex.A.10/Proceedings No.1459/2013 of Lokuyukta Hyderabad
dated:05072014
Ex.A.11/Copy of FMB of the area of the plaint schedule land. Ex.A.12/Encumbrance certificate for the period from 19261947
dated:24102013
Ex.A.13/Encumbrance certificate for the period from 1948 to 1982
dated:01112013
Ex.A.14/Encumbrance certificate for the period from 1983 to 2013
dated:01112013.
For Defendant:
Ex.B.1/Certified copy of SLR pertaining Sy. No.150 Ex.B.2/Copy of FMB Ex.B.3/Extract of No.3 adangal for the fasili 1423
Senior Civil Judge,
Rajam.
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