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IN THE COURT OF III ADDITIONAL DISTRICT JUDGE
RANGA REDDY DISTRICT: LB NAGAR
Present : Sri B.Venkata Prasad, B.Com., B.L. ,
III Additional District Judge,
Ranga Reddy District
Thursday, this the 10 th day of December, 2015
AS No. 222 of 2012
Between: Dandu Laxmaiah S/o. Late Nagaiah Aged about 62 Years, Occ: Business R/o. H. No. 5166/6, Gundla Pochampally Village
Medchal Mandal, RR District...Appellant/Plaintiff
And
N. Indira W/o. Bala Krishna Rao Aged about 65 Years, Occ: Housewife R/o. H. No. 56/1, Sumitra Nagar
Baghamber, Kukatpally, Hyderabad...Respondent/Defendant
Against: Judgment and decree passed by the II Additional Junior Civil
Judge, Medchal in OS No. 538 of 2004 dated 04062012
Between:
Dandu Laxmaiah...Plaintiff
And
N. Indira...Defendant
AS No. 275 of 2012
Between: Dandu Laxmaiah S/o. Late Nagaiah Aged about 62 Years, Occ: Business R/o. H. No. 5166/6, Gundla Pochampally Village
Medchal Mandal, RR District...Appellant/Defendant
And
N. Indira W/o. Bala Krishna Rao Aged about 65 Years, Occ: Housewife R/o. H. No. 56/1, Sumitra Nagar
Baghamber, Kukatpally, Hyderabad...Respondent/Plaintiff
Against: Judgment and decree passed by the II Additional Junior Civil
Judge, Medchal in OS No. 17 of 2005 dated 04062012
Between:
N. Indira...Plaintiff
And
Dandu Laxmaiah...Defendant
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These appeals are coming on 27102015 before me for hearing in the presence of Sri B. Chakrapani, Counsel for the Appellant and of Sri Narayan Rao Deshpande, Counsel for the Respondent; and upon perusal of the material papers on record and the case having been heard and stood over for consideration till this day, this court delivered the following common judgment:
COMMON JUDGMENT
The unsuccessful plaintiff in OS No. 538 of 2004 and defendant in OS No. 17 of 2015 preferred these Appeals ie, AS No. 222 of 2012 and AS No. 275 of 2012 respectively on the common judgment and decree passed by the learned II Additional Junior Civil Judge, RR
District at Medchal dated 04062012. The facts are as follows:
i) Facts of the Case in OS No. 17 of 2005:
a) The plaintiff N. Indira filed the suit against the defendant
Dandu Laxmaiah to declare her title to the suit schedule property and delivery of possession of the property and mandatory injunction over the suit schedule property ie, Plot No. 66,admeasuring Ac.250 square yards in Survey No. 105 situated in Gundla Pochampally Village, Near
Railway Station, Medchal on the following grounds:
The plaintiff purchased the suit schedule property ie, Plot No. 66 in Survey No 105 of Gundlapochampally Village admeasuring 250 square yards under a registered sale deed from Ch. Harinath as GPA of the original owners Sunku Narsimha, Saunku Sattaiah, Sunku 3
Krishna, Sunku Mallesh and Sunku Balamma for the land of 4 acres in
Survey No. 104 and Ac.431gts in Survey No. 105 situated in Gundla
Pochampally Village, Medchal. The total land was converted into 109 plots after obtaining layout from the grampanchayath under the name of Anupama Housing Colony. Thereafter, the owners executed the GPA in favour of Ch. Harinath in turn Harinath sold all the plots except 108 and 109 which were retained by the original owners. On 27122004, the husband of the plaintiff found the defendant making constructions in the suit schedule property and he claims that he purchased the schedule property under a registered sale deed vide document No.
12634 of 2003 dated 04102003. Then the plaintiff obtained encumbrance of the sale deed and filed a police complaint and the police registered a case in Crime No.313 of 2004 which clearly goes to show that the defendant as no right over the schedule property, since the plaintiff has purchased the property under a registered sale deed in the year 1985 from its real owners. Hence the suit.
b) The defendant filed written statement denying the plaint averments and stated that he purchased the suit plot No. 66 admeasuring 250 square yards under a registered sale deed No. 12634 of 2003 dated 04102003 and also obtained permission from grampanchayat on 27112004 and completed the construction and he 4 is living in the said house as such the plaintiff is not entitled to any relief and the suit is liable to be dismissed.
c) Basing on the above pleadings, the court below framed the following issues:
1) Whether the plaintiff is entitled for the relief of declaration over the suit schedule property?
2) Whether the plaintiff is entitled for vacate possession over the suit schedule property?
3) Whether the plaintiff is entitled for mandatory injunction as prayed for?
4) To what relief?
ii) Facts of the suit in OS No. 538 of 2005:
The suit in OS No. 538 of 2005 is filed by the plaintiff D.
Laxmaiah against the defendant N. Indira seeking the relief of permanent injunction restraining the from interfering with the peaceful possession of the plaintiff over the suit schedule property ie H. No. 5 166/6, admeasuring 250 square yards in Plot No. 66 in Survey No. 104 of Gundlapochampally Village, Medchal Mandal. The facts are as follows:
a) The plaintiff is the owner of the suit schedule property and he purchased the same under a registered sale deed No. 12634 of 2003 5 and he is enjoying the schedule property with absolute right title and possession from the date of his purchase over the same and when the defendant is trying to interfere with the schedule property and threatened to restrict him, he filed the suit against the defendant.
b) The defendant filed written statement denying the claim of the plaintiff and claimed that she is the absolute owner of the suit schedule property and she denied the ownership of the plaintiff and pleaded that she purchased the property from the real owners on 30121985 and since the date of purchase she is in possession of the property. On 27 112004 when the plaintiff was making constructions over the schedule property, this defendant filed complaint in Medchal Police Station and the police registered a case in Crime No. 313 of 2004 against the plaintiff. She also filed a suit OS No. 17 of 2005 against the plaintiff.
There are no bona fides in the suit and the suit is liable to be dismissed.
c) Basing on the above pleadings, the court below framed the following issues:
1) Whether the plaintiff is entitled for perpetual injunction as prayed for?
2) To what relief?
6 iii) As the party to both the suits and the property claimed by them is one and the same the evidence in both the suits was recorded in OS No. 17 of 2005. During the trial, the plaintiff in examined P.Ws 1 to 3 and marked Ex.A1 to A18. On the other hand, the defendant examined D.Ws1 to 3 and marked Ex.B1 to B6.
iv) The learned II Additional Junior Civil Judge, Medchal, on completion of trial and on hearing both sides on record and on appreciation of the oral and documentary evidence of both the parties has decreed the suit in OS No. 17 of 2005 while dismissing the suit of the plaintiff in OS No. 538 of 2004 by common judgment dated 0406 2012.
2) Aggrieved on the common judgment and decree passed by the trial court, the plaintiff in OS No. 538 of 2004 preferred AS No. 222 of 2012 and also preferred AS No. 275 of 2012 who is defendant in OS
No. 17 of 2005 on the ground that the trial court failed to consider the evidence and documents properly and erroneously passed the judgment on assumptions and presumptions and failed to consider that the appellant is in possession of the house property as such the common judgment and decrees of the trial court is liable to be set aside.
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3) The plaintiff filed the suit in OS No. 17 of 2005 for declaration of title and mandatory injunction and for possession against the defendant who is the plaintiff in OS No. 538 of 2004 wherein the plaintiff claims the relief of permanent injunction. The parties are referred as arrayed in OS No. 17 of 2005 for the sake of convenience and discussion.
4)The admitted facts are the schedule property is situated in
Gundlapocampally Village and the extent is 250 square yards. The plaintiff claims that the schedule property is situated in Survey No. 104 whereas the defendant claims that the schedule property is situated in
Survey No. 105. In fact, the original owners for Survey Nos. 104 and 105 are Sunku people. They had Ac.831gts in Survey Nos. 104 and 105 and the converted the same into 109 house plots after obtaining permission from grampanchayat in the name and stle Anupama
Housing Colony and they also executed General Power of Attorney in favour of Ch. Harinath under document No. 217 of 1985 dated 1705 1985. Subsequently, through the said Harinath, the plaintiff purchased
Plot No. 66 for valuable consideration under registered sale deed dated 30121985. The plaintiff claims that from the date of said purchase she is enjoying the same with absolute right title and possession and it is an open plot. Subsequently, when the husband of the plaintiff ie, 8
P.W2 observed some construction in the schedule property, immediately he ruse to the plot and questioned the persons who are making construction and came to know that the defendant is making constructions in the schedule property who claims that he purchased the schedule property from his vendor under a registered sale deed
dated 04102003 vide sale deed No. 12634 of 2003 by showing Plot
No. 66, Survey No. 104 admeasuring 250 square yards. There is no dispute in respect of the identity of the property. Both the parties are claiming the schedule property. The plaintiff is claiming schedule property that she purchased the same from Ch. Harinath the General
Power of Attorney of Sunku people ie, Plot No. 66 in Survey No. 105 whereas the defendant is claiming that he purchased the schedule property from the GPA holder Yadaiah of Sunku people and he claims that the property is situated in Survey No. 104 admeasuring 250 square yards. Immediately after coming to know that the plaintiff made all objections and lodged complaint in the police station and they also approached grampancayat office and they tried to level best to stop the constructions, but the defendant did not stop. If the documents filed by the plaintiff and defendants are scrutinized carefully, it clearly goes to show how the defendant has purchased the property. He purchased the property on 04102003 and obtained sanction hurriedly on 2711 2004 and started construction. The three receipts under Ex.B4 on 9 which the defendant is relying further discloses that in one of such receipt it discloses door number which gives any amount of doubt in respect of alleged construction. During the construction of house door number will not be allotted. Thus, Ex.B4 creates any amount of doubt about the sanction of permission. He also filed photographs and negatives. It is not disputes. The computer generated encumbrance certificate reflects what was entered in the computer and what was asked. Therefore, it will discloses in respect of Plot No. 66 in Survey No.
105.
6.Now the question that arises is: Whether there is any plot on land as pleaded ie Plot No. 66 in Survey No. 104 in Gundla Pochampally
Village in Anupama Housing Colony? Ex.A14 is the crucial document in this case ie, certified copy of layout plan which was approved by the
Grampancayat in the name of Anupama Housing Colony, which further discloses that the entire layout was in Survey Nos. 104 and 105 and the layout was granted for Survey No. 104 and 105 for the owners
Sunku Siva Mallesh and others and the Plot No. 66 was highlighted.
Therefore, Ex.A14 cuts the crux of the case. There are no two separate layouts for Survey Nos. 104 and 105. There is only one layout for
Survey Nos. 104 and 105 which means, there is only one plot as Plot
No. 66 in Survey Nos. 104 and 105 in Anupama Colony. Ex.A1 is the 10 sale deed in the name of the plaintiff dated 300121985 with plan and boundaries. Ex.A2 is the general power of attorney executed by Sunku
Sattaiah, Sunku Krishna, Sunku Mallesh the sons of late Sunku
Sivalal and Sunku Balamma. Ex.A1 also discloses that Ch. Harinath being the GPA holder of Sunku people executed sale deed in favour of the plaintiff. The pahanies also discloses the names of the said Sunku people.
7.It is not the case of the defendant that the said Sunku people have cancelled the GPA in the name of Harinath due to differences and after cancellation of the said GPA the said Harinath executed the sale deed in the name of the plaintiff and that the Sunku people executed
GPA in the name of Yadaiah. Therefore, it is clear that after converting the property in Survey Nos. 104 and 105 into plots by Sunku people into house plots under the name of Anupama Hosing Colony, they have given GPA to Harinath who in turn executed sale deed in favour of the plaintiff. The said sale deed executed in favour of the plaintiff was never questioned or challenged by Sunku people, the defendant or any other persons till now. P.W2 the husband of the plaintiff has lodged a complaint before the police and grampanchayat under Ex.A14 and A 15 which indicates that the plaintiff has taken action immediately after coming to know about the construction made by the defendant. The 11 defendant who filed the suit in the court obtained temporary injunction and completed the construction having full knowledge about the pros and consequences of the result of the suit.
8.Now the question that arises is who is Yadaiah. Yadaiah is no other than the henchmen of Sunku people who is one of the attestor of the sale deed of P.W1. After lapse of 18 years, Sunku people in collusion with Yadaiah brought into existence of GPA in the name of
Yadaiah disclosing Survey No. 104 separately as if it has not connection with Survey No. 105. In turn, the said Yadaiah has sold some plots to different people and one of such plot was purchased by the defendant from Yadaiah. To establish his case, the plaintiff has relied on certified copies of sale deed in respect of Plot Nos. 25, 32 and
69. Originally, plot No. 25 was sold by Harinath in favour of V. Selvaraj in the year 1985 under Ex.A8, where as Yadaiah sold the same plot to
A. Kamalamma on 02021993 under Ex.A8. Similarly, the said
Harinath sold Plot Nos. 32 and 69 in favour of G. Chrisostam and
Narsimha dated 23011986 and 30121985 respectively. Whereas,
Yadaiah sold the same plot Nos. 32 and 69 in favor of U. Vijaya
Lakshmi and A. Yetti Babu on 13011992 and 28071993 respectively, which indicates that the original owners Sunku people and Yadaiah have colluded and executed a GPA in the name of Yadaiah 12 and the purchasers without verifying the title to the property and without verifying the documents purchased the plots. In fact, the moment Harinath sold the property as GPA of real owners and delivered the plots, the Sunku people have lost their right, title and possession to the said plots. Thus, the Sunku people have lost their right, title and possession to Plot No. 66 of Survey No. 104 and 105 of
Anupama Housing Colony. The acts of the defendant obtaining sale deed, obtaining permission and making construction hurriedly after obtaining injunction order establishes that he colluded with Sunku
People and Yadaiah. The evidence of D.W2 goes to show that he acted as mediator for selling the plot to the defendant by Yadaia which indicates that D.W2 is behind the transaction between the defendant and Yadaiah and he does not want to speal the truth in the court.
P.W1 is the plaintiff and P.W2 is her husband and P.W3 is the person who purchased the plot along with the plaintiff at the same time having knowledge about the schedule property which supported the evidence of P.Ws1 and 2. D.W1 deposed about the purchasing the property from Yadaiah.
9. By bringing the evidence of Ex.A1 to A18, the plaintiff has constructed a strong case that she is having right, title and possession to the schedule property prior to the filing of the suit by the defendant.
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When the plaintiff has established her case, it is the duty of the defendant to establish his case. The defendant did not choose to establish his title ie, either Sunku people or Yadaiah. Moreover,
Yadaiah is the attestor for the sale deed executed by Harinath in favour of purchasers. Again Yadaiah acted himself as vendor and sold the property to the defendant. Te real owners Sunku people and Yadaiah colluded and brought into existence of the GPA in favour of Yadaiah and sold some plots which were already sold to different persons by
Harinat. In that way, they have cheated the defendant. The defendant has no title or possession to the schedule property at any point of time.
Taking advantage of invalid document, ie, GPA in favour of Yadaiah and basing on the sale deed of the defendant the defendant has entered into the schedule property and under the guise of court injunction orders, he made construction. Therefore, by brining the evidence of P.Ws1 to 3 and Ex.A1 to A18, the plaintiff is able to prove and establish her title and possession to the schedule property as such she is entitled for declaration and injunction. Since the defendant is having knowledge about the litigation and having knowledge that
Yadaiah has no right to sell the property, made constructions after obtaining injunction orders as such the plaintiff is entitled for mandatory injunction directing the defendant to remove the illegal constructions made in the schedule property and hand over possession 14 to the plaintiff. Thus, the defendant has miserably failed to establish right, title and possession to the schedule property. The defendant has approached the court with unclean and as such he is not entitled for permanent injunction who is a trespasser to the suit property.
10.The learned II Additional Junior Civil Judge, Medchal has elaborately discussed the oral and documentary evidence on record and came to proper conclusion. I do not find any reason to interfere with the judgment and decree passed by the trial court, as such the appeals lack merits and they are liable to be dismissed. Accordingly, this point is answered.
In the result, both the appeals are dismissed by confirming the common judgment and decree passed by the trial court
Dictated to the Personal Assistant, transcribed by him corrected and
pronounced by me in open Court on this the 10 th day of December, 2015.
III ADDITIONAL DISTRICT JUDGE
RANGA REDDY DISTRICT