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IN THE COURT OF THE II ADDITIONAL JUNIOR CIVIL JUDGE, CHITTOOR.
Present: Smt. B.V.Sulochana Rani
II Addl. Junior Civil Judge, Chittoor.
Wednesday, the 26th day of April, 2023
O.S.No.348 of 2014
Between:
1.Smt.D.Padma (died
2.D.Thirumalaiah
3.D.Rajani
4.D.Vasantha Kumar
Plaintiffs 2 to4 were added as parties as per orders in IA .535 of 2021
dt 6.12.2021
… Plaintiffs
And:
1. P.Srinivasulu Naidu
2. P.Balaji Naidu
...Defendants
This suit is coming on 13.04.2023 before me for final hearing in the presence of Sri
E.Sunil Kumar , Counselfor Plaintiffs and of Sri.M.Balasubramanyam, Counsel for defendants and having stood over for consideration till this day, this court delivered the following:-
J U D G M E N T
This is a suit filed by the plaintiffs against the defendants for permanent injunction in respect of suit schedule property by restraining the defendants , their men agents, and servants from in any way interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property and for costs.
2. The brief averments of the plaint are as follows:
The first plaintiff pleaded that she is the permanent resident of Reddigunta village and the plaint schedule property absolutely belongs to the plaintiff and she is n 2 possession and enjoyment of the same. Suit schedule property is the patta land and it is her absolute property and she enjoying the same by raising rain fed crops in recognition of her possession and enjoyment the revenue authorities issued pattadar pass book and title deed to the plaintiff.
2(a). Defendants have no right and title over the suit schedule property they are having more than 15 acres of land and they are making attempt to grab the suit schedule property there is a danger for the property as the defendants are interfering with the peaceful possession and enjoyment of the suit schedule property in order to knock away the same by dispossessing the plaintiff from the plaint schedule property. Hence the suit.
3. On receipt of summons the first defendant filed written statement,
Defendants 2 filed an adoption memo by adopting the written statement filed by the first defendant.
4. The brief contents of the Written Statement filed by the D.1 are as follows:
(a) Initially the first defendant pleader that originally the suit schedule property belongs to one Annamalai Naicker and the same was sold to one K.Krishnaiah through the sale deed dt.20.4.1974 the said Krishnaiah executed an unregistered agreement of sale dt. 7.9.1992 to the first defendant agreeing to sell the same for valid consideration of Rs.33,000/- and delivered possession of the suit schedule property on the same day to the first defendant after receipt of entire sale consideration, agreed to execute a registered sale deed in favour of the first defendant or to the nominee of the first defendant at a later date.
The first defendant further pleaded that the revenue records which stands in the name of plaintiffs are forged and a fabricated one they obtained by misrepresentation from the revenue authorities. In view of the fabrication of revenue records the defendants filed a criminal complaint against the first plaintiff the same is registered and 3 it is in pending. First defendant further pleaded that as his vendor Krishnaiah failed to execute a regular sale deed the first defendant filed a suit in the court of the II Addl.
Junior Civil Judge, Chittoor vide Os. 39 of 2012 for specific performance of contract and the said suit was decreed infavour of the first defendant on 7.8.2012 by directing the said
Krishnaiah to execute a registered sale deed infavour of the first defendant herein within three months from the date of judgment failing which the first defendant is at liberty to obtain a registered sale deed through process of law. Subsequent to the decree, as
Krishnaiah failed to execute a regular sale deed the first defendant filed EP.14 of 2013 on the file of II AJCJ, Chittoor. During the pendency of the said EP as the J.Dr Krishnaiah died without having any LRs, as a result the said EP was closed. Since, the agreement of sale executed by Krishnaiah to the first defendant dt 7.9.1992 the first defendant is in possession and enjoyment of the suit schedule property and the plaintiffs never been in possession and enjoyment of the same. Further the first defendant pleaded that he came to know his vendor Krishnaiah is executed an agreement of sale in respect of the suit schedule property infavour of husband of first plaintiff on14.10.1997. the agreement of sale which executed by Krishnaiah in favour of the first defendant is much earlier than the agreement of sale executed infavour of the husband of the first plaintiff as such the suit is not maintainable, finally prayed for dismissal of the suit with costs.
(b). Again the defendants filed IA 64 of 2015 seeking leave of the court to file
additional written statement the same is allowed and the first defendant filed additional
written statement and the second defendant field an adoption memo by adopting the written statement of D.1.
5. Brief contents of the additional written statement filed by D.1:
D.1 pleaded that the pattadar pass book and title deed filed by the plaintiff along with the plaint are forged and fabricated one. The Tahsildar, Chittoor made an 4 endorsement under RTI to the first defendant by stating that there is no entry to the effect that the plaintiff holds an extent of AC.5.00 in Sy.No.320/4 of Greamspet Revenue accounts in the extract of 1-B register with Khata No.112 standing in the name of first plaintiff, the same was obtained from the Tahsildar Chittoor after filing written statement hence, they filed additional written statement.
6. Basing on the pleadings and on hearing both parties the following issues were settled for trial:
ISSUES:
1. Whether the plaintiff is in possession and enjoyment of the suit schedule property as on date of filing of this suit?
2. Whether the plaintiff is entitled to seek permanent injunction in respect of suit schedule property as prayed for?
3.To what relief?
7. During the course of trial PWS 1 and 2 examined for the plaintiffs and Ex.A.1 toA.18 marked for the plaintiffs.
After closure of the evidence of the plaintiffs, DWs.1 to 6 examined for the defendants, Ex.B.1 to B.14 marked for the defendants.
7(a). Initially the suit was filed by the sole plaintiff against defendants 1 and 2 but, during the pendency of the suit for trial, the sole plaintiff died and the LRs of the plaintiff brought on record as plaintiffs 2 to 4 as per the orders in IA NO.535 of 2021 dt.
6.12.2021 thus, now the suit is in between plaintiffs 1 to 4 and defendants 1 and 2.
8. Heard arguments on both sides both counsels filed written arguments along with citations:
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POINT:
This is a suit filed by the plaintiffs against D.1 and D.2 seeking permanent injunction in respect of suit schedule property by restraining defendants, their men, agents, and followers in any way interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property.
The case of the plaintiff is it is the absolute property of the first plaintiff and she has been in possession and enjoyment of the same, by recognizing her possession and enjoyment over the suit schedule property, the revenue authorities issued pattadar pass book and title deed infavour of the first plaintiff in respect of suit schedule property. The defendants are nothing to do with the suit schedule property with a view to encroach the suit schedule property and merge the same into their land which is adjacent to the suit schedule property they are creating troubles to the plaintiff with her enjoyment.
On the other hand the defendants pleaded that the originally the suit schedule property belongs to Anamalaia Naicker and he sold that property under a registered sale deed dt.20.12.1974 for true and valid consideration in favour of one Krishnaiah and on the date of sale itself the said Krishaniah inducted in to possession of the suit schedule property and Krishnaiah enjoyed the same. Thereafter in the year 1992 the said
Krishaniah executed an agreement of sale infavour of the first defendant inrespect of suit schedule property and possession also delivered to the first defendant on the date of agreement of sale itself by agreeing to execute a registered sale deed in favor of the first defendant as and when demanded by the first defendant. As the said Krishnaiah subsequently failed to execute regular sale deed infavour of the first defendant, first defendant filed OS. 39 of 2012 on the file of II AJCJ Court. Chittoor for specific performance of contract the same is decreed in favour of first defendant by directing
Krishnaiah to execute a registered sale deed infavour of the first defendant here in terms 6 of the agreement of sale in default through process of court. But, said Krishnaiah even after passing decree infavour of the first defendant herein failed to execute a registered sale deed infavour of the first defendant, the first defendant filed EP against Krishnaiah on the file of II AJCJ Court, Chittoor but, during the pendency of the EP. As Krishnaiah died without any legal heirs the said EP was closed. Since, the date of agreement of sale executed by Krishnaiah in the year 1992 the first defendant is in possession and enjoyment of the suit schedule property. The plaintiff has no right, title,. Possession and enjoyment over the suit schedule property.
Thus, the first plaintiff and first defendant both are claiming right, title, possession and enjoyment over the suit schedule property. As this is a suit for permanent injunction the possession of the parties over the suit schedule property by the date of filing of the suit is the primary consideration. In view of the same in the light of the oral and documentary evidence placed by the both parties it have to be decided which party is in possession and enjoyment of the suit schedule property by the date of filing of the suit.
Issues No.1:
Whether the plaintiff is in possession and enjoyment of the suit schedule property as on date of filing of this suit?
In order to prove the case of the plaintiff that she is in possession and enjoyment of the suit schedule property. The first plaintiff D.Padma is examined as PW.1 she field her evidence affidavit in lieu of her chief examination the contents of her evidence affidavit is in consonance with her plaint. Through PW.1, Exs.A.1 to A.18 are marked.
In support of her case one D.Sumathi who is the third party is examined as PW.2. PW.2 also field her evidence affidavit in lieu of her chief examination by stating that the suit schedule property is absolutely belongs to the first plaintiff and first plaintiff was in possession and enjoyment of the same by raising rainfed crops and raised few mango 7 trees, the defendants are no way connected with the suit schedule property but they are interfering with the possession and enjoyment of the Ist plaintiff over the suit schedule property.
As seen from Ex.A.1 to A.18, Ex.A.1 is the original sale deed dt. 2.12.1974 executed by Annamalai Naicker in favour of the one K.Krishnaiah. With respect to Ex.A.1 there was no dispute at all, , the defendants also admitted in their written statement that originally the suit schedule property belongs to Annamalai Naicker he sold the same to one K.Krishnaiah under a registered sale deed dt. 20.201.1974, hence with respects the contents of Ex.A.1 there is no dispute or execution of the same in favour of Krishnaiah by
Annmalai Naicker.
Ex.A.2 is the original will deed executed by Krishnaiah in favour of the Ist plaintiff dt 18.7.1998, to say that she succeeded the suit schedule property from the said
Krishnaiah. As seen from its recitals it was executed on 18.7.1998 by K.Krishnaiah in favour of first plaintiff in respect of land in Sy.No.320/4 of 71 Greamspet for an extent of
AC.5.00 with specific boundaries East : the land of the first plaintiff West and South: the lands of Anupalli revenue village accounts and on north the lands of Srinivasa Rao/ (first defendant and others and it is written by on J.Vijaya Rao attested by two attestors.
Section 68 of the Indian Evidence Act says about proof of unregistered documents.
As per section 68 of the Act an unregistered document must be attested by atleast two attestors and it must be proved by examining at least one of the those attesting witness.
So also as per Section 125 Indian Succession Act the wills must be proved by examining at least one of the attesting witness and it must be established by the propounded of the will that the testator of the will executed the same with free-will and consent and in a sound disposing state of mind, the said will was executed. In the present case in hand 8 as the plaintiff failed to examine any of the attesting witness on her behalf it can be consider that the plaintiff failed to prove the contents of the will/Ex.A.2.
Ex.A.3 is the cist receipt dt 4.11.1988 filed by the first plaintiff to say that she is paying cist to the suit schedule property as seen from the cist receipt it is dated.4.11.1988.
As per the version of the plaintiff the unproved will/Ex.A.2 is executed by Krishnaiah in favour of the plaintiff on 18.7.1998 but, whereas Ex.A.3 pertaining to 4.11.1988whihc is ten years prior to Ex.A.2. Moreover, in the column of Survey number of the said receipt it is mentioned as vacant site (Kalijaga) here the suit schedule property is an agricultural land but not vacant site. Thus, the contents of Ex.A.3 is contrary to the case of the plaintiff and it is not relevant to the suit schedule property.
Ex.A.4 is the 1-B extract dt. 16.6.2015 stands in the name of first plaintiff in respect of suit schedule property. Ex.A.5 is 1-B extract dt 6.6.2016 stands in the name of first plaintiff in respect of suit schedule property. Ex.A.6 is 1-B extract obtained through mee- seva, dt. 8.7.2016 stands in the name of first plaintiff in respect of suit schedule property.
Ex.A.7 is the adangal dt. 6.2.2016 in respect of land in Sy.No.320/4 for an extent of ac. 4.93 cents stands in the name of plaintiff as pattadar and enjoydar of the same. Ex.A.8 is the pattadar adangal dt. 23.04.2016 in respect of land in Sy.No.320/4 for an extent of AC. 4.93 cents stands in the name of plaintiff as pattadar and enjoydar of the same. Ex.A.9 is the 1-B dt.8.7.2016 in respect of land in Sy.No.320/4 for an extent of AC. 4.93 cents stands in the name of plaintiff as pattadar and enjoydar of the same. Ex.A.10 is the pattadar adangal dt. 18.04.2015 in respect of land in Sy.No.320/4 for an extent of AC. 4.93 cents stands in the name of plaintiff as pattadar and enjoydar of the same. Ex.A.11 is the certified copy of pattadar pass book stands in the name of first plaintiff with patta No.112.
In Ex.A.11 at Page No. 2 in Sl.No.2 there was an entry in the name of plaintiff in respect of suit schedule property as she is the pattadar of the suit schedule property and for first 9 time it was issued on 12.9.1998, as per the entries made in the first page of the said book with Patta No.112. Ex.A.12 is the certified copy of title deed book stands in the name of first plaintiff with patta No.112. In Ex.A.12 at Page No.2 in Sl.No.2 there was an entry in the name of plaintiff in respect of suit schedule property as she is the pattadar of the suit schedule property and for first time it was issued on 12.9.1998 as per the entries made in the first page of the said book in Patta No.112. Ex.A.13 is the 1-B dt.18.04.2015 in respect of land in Sy.No.320/4 for an extent of AC.4.93 cents stands in the name of plaintiff as pattadar and enjoydar of the same. Ex.A.14 is the pattadar adangal dt.18.04.2015 in respect of land in Sy.No.320/4 for an extent of AC. 4.93 cents stands in the name of plaintiff as pattadar and enjoydar of the same. Ex.A.15 is the 1-B dt.14.10.2014, in respect of land in Sy.No.320/4 for an extent of AC.4.93 cents stands in the name of plaintiff as pattadar and enjoydar of the same. Ex.A.16 is the pattadar adangal dt. 15.10.2014 in respect of land in Sy.No.320/4 for an extent of AC. 4.93 cents stands in the name of plaintiff as pattadar and enjoydar of the same. Ex.A.17 is the pattadar adangal dt.
18.09.2015 in respect of land in Sy.No.320/4 for an extent of AC. 4.93 cents stands in the name of plaintiff as pattadar and enjoydar of the same. Ex.A.18 is the 1-B dt.18.09.2015 in respect of land in Sy.No.320/4 for an extent of AC.4.93 cents stands in the name of plaintiff as pattadar and enjoydar of the same. Thus, Ex.A.4 to A.18 are the revenue records which stands in the name of first plaintiff in respect of suit schedule property.
As seen from the said documents it can be notice all the documents are subsequent to 14.10.2015, except the pattadar pass and title deed ie, Ex.A.11 and A.12 and the suit is filed on 16.10.2014. The defendants are disputing about the revenue records stands in the name of the plaintiff by stating that they are obtained by the plaintiff by managing the revenue authorities subsequent to filing of the suit. Admittedly except Ex.A.15 and A.16, 10
A.11 and A.12 all the other revenue records which filed and marked as Ex.A.4 to A.10,
A.13, 14, 17 and 18 are pertaining subsequent to filing of the suit.
During the course of cross examination of PW.1 she stated that she do not know the descriptive particulars of the plaint schedule property. Again she stated that the plaint schedule property is situated in Sy.No.320/4 for an extent of AC.4.93 cents. But she failed to state the boundaries of the plaint schedule property. She stated that “ I do not know the boundaries of plaint schedule property”, I do not know the contents of the written statement filed by the defendants. Further, she stated that her husband purchased the plaint schedule property.
One hand she filed Ex.A.2 Will by stating that the original holder of the suit schedule property by name K.Krishnaiah executed a will infavour of her in respect of the land in Sy.No.320/4 for an extent of AC.5.00 on the other hand she stated that her husband purchased that property. Further she failed to state whether the document under which her husband purchased the suit schedule property filed before the court or not and other particulars of the alleged sale transaction from whom her husband have purchased that property. Further she stated that the present suit and documents are filed by her husband. In-fact the suit was filed by PW.1 herself. As seen from her evidence it appears that she do not know anything about this case facts and the entire case is looked after by her husband. She admitted that her husband died on 22.11.2017 and she do not know the boundaries of the Suit schedule property also.
As per the version of the defendants Ex.A.11 and A.12 were tampered and fabricated about the entries in respect of suit schedule property and by substituting
Ex.A.11 and A.12 in order to keep in dark the original facts, the plaintiff obtained the original pattadar passbook and title deed from the court with the permission of the court by giving undertaking to the court that she will produce the same as and when required.
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But, subsequently. Even during the course of trail the plaintiff did not produce the original pattadar pass book and title deed before the court. Admittedly a criminal case was registered on the ground of fabrication of revenue record and entries in Ex.A.11 and
A.12 when the defendants are disputing the entries in Ex.A.11 and Ex.A.12 it is the bounden duty of the plaintiff to produce the originals before the court to remove the suspicion towards the entries in Ex.A.11 and A.12. But whereas PW.1 during the course of cross examination, stated that “ I am not intend to file pattadar pass book and title deed before this court.” Which creates a doubt and suspicion in the mind of the court with the respect to the entries in Ex.A.11 and A.12 with regard to the suit schedule property.
In the further cross examination dt. 26.03.2019 she stated that except the plaint schedule property she have no other landed properties on her name. It is also contra to the documents filed by the plaintiff since the 1-B adangals and Ex.A.11 and A.12 which relied by the plaintiff categorically discloses another piece of land stands in the name of the plaintiff in Sy.No.324/A for an extent of AC.0-50 ½ cents. She stated that her husband purchased the plaint schedule property from one Krishnaiah. To prove that fact no document is placed before this court.
She pleaded ignorance about the following things during the course of her cross examination.
Visit of the advocate commissioner to the suit schedule property, Whether she mentioned in her chief examination affidavit about the existence of mango trees and other fruit bearing trees in the suit schedule property, her husband filed OS. 203 of 2006 on the file of II AJCJ Court, Chittoor, by stating that Krishnaiah executed agreement of sale dt 14.10.119 infavour of husband of plaintiff for a consideration of Rs.35,000/- and he received Rs. 10,000/- towards advance amount , suit was decreed infavour of her husband 12 subsequently her husband filed writ petition No.26267 of 2011 on the file of Hon’ble High
Court of AP and the same was dismissed, the said writ petition was filed against the Sub-
Registrar Chittoor, said Krishnaiah sold property for an extent of AC.5.00 in Sy.NO.320/4 for Rs.33,000/- to the first defendant and delivered possession on 7.9.1992, prior to execution of agreement of sale in favour of the husband of the plaintiff dt.14.10.1997, the first defendant filed suit against Krishnaiah in OS. 39/2004 on the file of this court and decreed the suit in the year 2012 later he filed EP 14 of 2013, during the pendency of the
EP Krishnaiah was died and EP was closed. Thus, the plaintiff pleaded ignorance about so many material aspects of pertaining to suit schedule property but, she stated voluntarily that he husband executed a document in her favour in respect of suit schedule property but no such document is placed before this court. In contra, to that she deposed she field her registered document to show her husband executed a document in respect of suit schedule property in her favour. Again voluntarily stated that the original document is with her. Thus, her evidence is no reliable and trustworthy.
When it is suggested to PW.1 about the entry of second item in revenue record for an extent of AC.0.50 ½ cents she stated that the revenue authorities falsely mentioned that extent in her revenue record. Further she pleaded ignorance how much extent was mentioned in her pattadar pass book by the revenue records. Further she denied about the crime registered against the plaintiff and her husband on the ground that they fabricated the pattadar pass book and title deed vide crime No. 23 of 2017 in II Town
Police station and other questions posed by the counsel for defendant in respect of
Ex.A.04 toA.18 categorically denied the same.
In support of her case B.Sumathi who examined as PW.2 deposed in her cross examination that PW.1 is her relative and she is co-sister to PW.1. Further she stated that the suit schedule survey Number is 320/4 for an extent of Ac. 4.93 cents, according to her 13 the plaintiff acquired property about 3 years back as she purchased the same. As per the case of the plaintiff by placing Ex.A.2 she stated that she succeeded the property under
Ex.A.2 will and in her cross examination she stated that her husband purchased property and he executed a document in her favour as such she succeeded the same but her plaint is silent how she acquired the suit schedule property. But in contra to the entire versions of PW.1, PW.2 stated that PW.1 purchased the property. PW.2 further pleaded ignorance in respect to details of the suit ie., who filed the present suit against whom and the sale consideration alleged purchase by the plaintiff, how many mango trees are existed in the suit schedule property. She further stated that “ I do not know whether the first defendant is in possession and enjoyment over the suit schedule property as exclusive right and he has planted mango trees and providing water through bore well through pipe line and the mango plants are yielding.” Thus, PW.2 failed to state about the possession and enjoyment of the parties over the suit schedule property. The other suggestions posed by the counsel for plaintiff is denied by PW.2. As seen from the entire evidence of PWs 1 and 2, Ex.A.1 to A.18 though the plaintiff filed revenue records in her name to show that she was in possession and enjoyment of the suit schedule property as there was a dispute with regard to entries of the said revenue record and the other evidence is no way helpful to the plaintiff to establish her case.
On the other hand the first defendant is examined as DW.1 and he filed his evidence affidavit in lieu of his chief examination the contents of evidence affidavit of
DW.1 is nothing but reiteration of the contents of his written statement in support of his case he filed and marked Ex.B.1 to B.10. ( the serial number of the documents marked as wrongly upto Ex.B.11). One P.Rajasekhar is examined as DW.2 he filed his evidence in lieu of his chief examination but, subsequently as he did not turn up to the court for cross examination his evidence affidavit is eschewed from the record. One C.Rajakumar third 14 party is examined as DW.3, the advocate commissioner who visited the suit schedule property is summoned and examined as DW.4, the Tahsildhar, Chittoor summoned and examined as DW.5, One Abdul Jabbar who is a third party to the suit is examined as
DW.6. Among DWs 3 to 6, DWs. 3 and 6 are the third parties they have filed their evidence affidavits in lieu of their chief examination. The contents of chief examination of DW.3 and 6 is consistent and corroborate the evidence affidavit of DW.1 in all material aspects. DW.4 and 5 are the summoned witnesses they were examined in chief by the defendants and cross examined by the plaintiffs.
As seen from Ex.B.1 to B.10, Ex.B.1 is the certified copy of plaint and its annexures filed by first defendant herein against K.Krishnaiah in OS. 39 of 2012. As seen from it recitals that the first defendant herein pleaded that he have purchased the property in
Sy.No.320/4 situated in 71 Greamspet revenue accounts for extent of AC.5.00 dry land with specific boundaries under an agreement of sale dt.7.9.1992 for valid consideration of Rs.33,000/- the entire sale consideration was paid to the said Krishnaiah on the date of agreement of sale itself possession also delivered to the first defendant by agreeing to execute regular sale deed infavour of the first defendant herein or to his nominee whenever required by the first defendant herein.
Ex.B.2 is the certified copy of judgment passed in OS.39 of 2012 on the file of II
AJCJ Court, Chittoor infavour of the first defendant herein in respect of property mentioned in suit schedule in OS./No.39 of 2012 with a direction to K.Krishnaiah to execute a registered sale deed in favour of the First defendant herein in terms of the agreement of sale within two months failing which through process of court. Ex.B.3 is the certified copy of decree passed in OS. 39 of 2012.
Ex.B.4 is the certified copy of agreement of sale executed by K.Krishnaiah infavour of the first defendant herein. As seen from its recitals the property covered under Ex.B.4 15 ie, land in sy.no.320/4 for an extent of AC.5.00 is handed over to the first defendant on the date of Ex.B.4 itself and the first defendant herein inducted into the possession of the same. Ex.B.5 is the office copy of caveat petition which filed by the first defendant against the husband of the first plaintiff. As seen from Ex.B.5 the first defendant categorically mentioned about Ex.B.1 to 4 the said caveat petition was filed by the first defendant herein in the month of December 2013 itself ie., prior to filing of the suit. But, by suppressing all those facts the plaintiff field the present suit. Ex.B.6 is the endorsement issued by the office of Tahsildar, Chittoor to the advocate of the defendant by stating that there is no entry in the name of the plaintiff with Khata No.112 in respect of land inSy.No.320/4 of
Greampset revenue village accounts for an extent of AC.5.00. Ex.B.7 is the certified copy of FIR in Cr.NO.23 of 2017 of Chittoor II town PS which registered against the plaintiff herein and her husband Devarajulu Naidu on the ground they tampered the revenue record and created false documents in the name of the first plaintiff herein. Ex.B.8 is the extract of A-Register to show that the land in Sy.No.320/4 is a government dry land.
Ex.B.9 is the 1-B extract in respect of Khata No.112 which discloses that there is only one entry in the name of first plaintiff with respect to land in Sy.No.324/A for an extent of
AC.50 ½ cents. Ex.B.10 is the pattadar adangal obtained by the first defendant under
RTI Act to show that the land in Sy.No.320/4 for an extent of AC.5.00 is a barren land and it belongs to Annamalai Naicker.
During the course of cross examination of DW.1, categorically deposed that he know the boundaries of the suit schedule property on west the property, of defendant, on east land of Kummara Chetty further east land of First plaintiff and Girija are situated,
PWs.1 and 2 are relatives. He have documentary proof to show that the suit schedule property belongs to him which is unregistered document. Admittedly there are some 16 alterations in Ex.B.4 ie, agreement of sale further he admitted that Ex.B.4 he have no other registered document to show that plaint schedule property purchased by him.
It is the case of the first defendant he purchased the property covered under Ex.B.4 which is an unregistered agreement of sale from the original holder of the suit schedule property ie., A.Krishnaiah subsequently as the said Krishnaiah failed to execute a registered document in favour of first defendant in terms of the agreement of sale, he approached the court and obtained decree in his favour. Subsequently he filed EP for getting registered sale deed but due to death of the J.Dr that EP was closed. Thus he admitted about nonexistence of registered documents infavour of first defendant in respect of suit schedule property.
During the course of cross examination dated.4.2.2020, DW.1 stated that the suit schedule Sy.No. is 320/4 he have no landed properties in the said survey number apart from the suit schedule property. The plaintiff filed the suit for an extent of AC.4.93 cents.
It can be seen from the written arguments of the counsel for plaintiff that he copied the contents of 1-B stands in the name of First defendant to show that there is no entry in the revenue records in respect of suit schedule property in favour of the first defendant to establish his possession and enjoyment. The first defendant himself admitted that he have no registerd documents pertaining to the property in Sy.No.320/4, in such a case there is no scope to made entry in favour of the first defendant in online revenue record in respect of suit schedule property.
Further, it was elicited from DW.1 that upto 2014 the husband of the plaintiff prosecuted the present suit, DW.1 never took groundnuts on subsidy. It is already hold by this court basing on the evidence of PW.1 itself, that the entire suit proceedings is look after by the husband of the first plaintiff. By eliciting “that the defendant never taken groundnuts on subsidy” the counsel for plaintiff argued that if really the defendant is in 17 possession and enjoyment of the suit schedule property the government has to supply the groundnut seeds on subsidy being a farmer to the defendant. Instead of that the agricultural authorities supplied groundnut seeds to PW.1 and to that extent there was an endorsement in Ex.A.11 and Ex.A.12 so it can be said that the plaintiff is in possession and enjoyment of the suit schedule property.
It is a public noticeable fact that to supply seeds by the government on subsidy to the farmers, the farmers have to produce their pattadar pass books, or title deeds or some other revenue record in proof of possessing land by the farmers. Admittedly when there is no entry in favour of the defendant in respect of suit schedule property non receiving of groundnut seeds to the first defendant on subsidy is not at all an issue. Making a stamp in Ex.A.11 and A.12 by stating that the government authorities supplied groundnut seeds to the plaintiff is not enough to say that the plaintiff is cultivating the lands or she raised groundnut crop in the suit schedule property or she is in possession and enjoyment of the suit property by the date of filing of the suit.
During the course of cross examination dt.3.3.2020 it was elicited from DW.1 that unregistered agreement of sale pertaining to 1992 and basing on it DW.1 filed suit in the year 2012 with a gap of 20 years within the said 20 years suit schedule property never alienated to any third parties. DW.1 stated that he do not know whether the husband of the plaintiff filed the suit in the year 2006 against one Krishnaiah in respect to suit schedule property.
When the counsel for plaintiff questioned about making representations to revenue authorities by DW.1 he stated that prior to filing of the suit I never filed a representation before Thasildar or any other revenue authorities relating to suit property.
DW.1 added that as he was in possession and enjoyment of the suit schedule property he never filed any representation it was a revenue authorities. Suit schedule property is 18 an extent of AC.5.00. When confronted Ex.B.6 to DW.1 he admitted about making of
Ex.B.6 by him to the Tahsildar. Ex.B.6 is nothing but RTI application made by the first defendant to the MRO. The other suggestions posed by the counsel for plaintiff is categorically denied by DW.1. As already stated about the evidence in chief of DW.2 is eschewed from the record.
During the course of cross examination of DW.3, DW.3 admitted that he is a tractor driver he used to attend on the basis of coolie for driving tractor of the first defendant for the past 13 years thus, DW.3 admitted he is working under DW.1. Thus he is a interested witness and there is possibility of undue influence in between DW.1 and DW.3 since there is a relationship between them as master and servant. DW.3 stated that against the first defendant the husband of first plaintiff filed the case he has no knowledge about the survey number of the suit schedule property. About 13 years ago the first defendant purchased the suit schedule property from one Krishnaiah, the said Krishnaiah died in the year 2018. In the suit schedule property there are mango trees and bore well is existed the first defendant planted mango saplings in the suit schedule property and he did not go through the documents filed by the first defendant etc., As seen from the admission of DW.3 as he is working under DW.1 we should not give much weightage to the evidence of DW.3,though he deposed in favour of DW.1 during the course of cross examination.
DW.4 is the advocate commissioner he deposed in his chief examination about execution of warrant as per the orders in IA.No.842 of 216 dt. 14.3.2017. Admittedly the advocate commissioner is appointed at the instance of defendant 1 and 2 and he executed the warrant in the absence of the plaintiffs and their counsel and he identified the property with the help of the defendants and he noted down the physical features of warrant schedule property. As per DW.4/CW.1, in the warrant schedule property there 19 is mango garden, 6o mango trees are existed, in the mango garden there is underground pipe line, water also flowing through the said pipeline. During his visit he took photographs of the warrant schedule property and on completion of execution of warrant he submitted the report along with photographs, rough sketch and other material documents before the court on 3.4.2018. Through DW.4 Exs.C.1 to C.5 were marked.
During the course of cross examination when questioned about the identity of the warrant schedule property with the assistance of mandal surveyor, only with the help of the petitioner, the commissioner replied that as it is beyond scope of warrant as there is no specific direction in the warrant to get the assistance of mandal surveyor. As seen from Ex.C.1 warrant the court directed the advocate commissioner that “ note down the existing physical features of the plaint schedule property and file the report along with plan”. Except that there is no direction to the commissioner to execute the warrant with the assistance of mandal surveyor. Admittedly he executed the warrant in the absence of plaintiffs and the counsel of the plaintiffs. He further admitted that he do not know the land which shown by the petitioner whether belongs to the petitioner or not.
In view of the said circumstances and the commissioner executed the warrant in the absence of the plaintiffs and as per the tunes of the defendants it cannot be taken into consideration.
The other summoned witness DW.5 the Thasildar, Chittoor in her chief examination stated that Ex.B.6 and B.9 appears as it was issued from their office. Further she stated that as per Ex.B.9 the land in Sy.No.324/A for an extent of AC.0.50 ½ cents stands in the name of first plaintiff with khata No.112, as per the A Register pertaining to 71 Greamspet, Chittoor the total extent of land is in Sy.No.320/4 is AC.5.00 stands in the name of Annamalai Naicker. But, as per the revenue records confronted to her the said property stands in the name of PW.1. Further, she admitted that online entries 20 started in the year 2012, prior to that there available only manual register. During the course of cross examination she stated that the land in Sy.No.320/4 for an extent of
AC.4.93 cents stands in the name of first plaintiff as per the records available in their office. She further stated that without verifying the records she cannot say whether the
Ex.A.11 was issued from her office. When “A” series documents ie., Pattadar adangals and 1-B extracts confronted to DW.5 she admitted that the said entries stands in the name of PW.1. When “B” series confronted to her she admitted that property stands in the name of Annamalai Naicker. Thus, her evidence is volatile evidence moreover she did not produce any official record from their office before this court and without verification of their records, basing on the documents confronted by both counsel she deposed evidence in the chief examination in favour of the defendants and in her cross examination basing on A series documents infavour of the plaintiffs hence her evidence cannot be taken into consideration.
DW.6 who is the Abdul Jabbar third party filed his evidence affidavit by stating that since 9 years the defendant leased out his mango garden to DW.6 in the suit schedule property and the mango yielding is taking by DW.6 on lease basis and to supply the same to the market. During the course of cross examination, he stated that he know the defendant from 2016 onwards but, whereas in his chief he stated that he is taking mango garden from the first defendant from the last 9 years which is contrary to his cross examination. Further DW.6 stated that the first defendant shown his pass book in respect of suit schedule property on that he came to know that the land belongs to first defendant.
As per the case of the first defendant he have no revenue record at all in respect of suit schedule property. In such case showing of pattadar passbook to DW.6 by DW.1 is impossible and it is far away from truth. DW.6 further stated that there are 300 mango trees in the suit schedule property. But, as per the case of the defendant there are only 60 21 mango trees in the suit schedule property. Thus, the entire evidence of DW.6 is inconsistent with the case of the DW.6. Basing on his evidence it appears he is a planted witness for the purpose of this case. Hence, his evidence cannot be taken into consideration. Though we kept aside the entire evidence of DWs 3 to 6 basing on the evidence of PWs. 1 and 2, DW.1 and the documentary evidence available on the record ie., Ex.A.1 to A.18, Ex.B.1 to B.10 the plaintiffs failed to establish their possession over the suits schedule property by the date of filing of the suit on the other hand the defendants categorically proved their case.
At the time of arguments the counsel for plaintiff vehemently argued that the revenue records which stands in the name of first plaintiff categorically establishes her possession and enjoyment over the suit schedule property on the date of filing of the suit.
Further he relied upon Tagore Township and other VS Mr.MD.Khasim and others the
Hon’ble High court of AP held that an entry in the revenue records ins prima-facie proof
of possession and enjoyment and that it is for defendants to challenge the same.
As per the Section 6 of ROR Act 1971, it shall be presumed the entries made in the revenue records are true and correct until the contrary is proved. In thepresent case in hand the defendant disputing the revenue entries from the beginning and in connection with the revenue entries they lodged a criminal complaint against the plaintiffs by stating that they are fabricated one. But, the plaintiffs failed to place the original pattadar pass book and title deed before the court to prove the genuiness of the entries in Ex.A.11 and
A.12. Hence it can be said that the defendants able to rebut the presumption available in favour of plaintiffs.
Further the counsel for plaintiff pleaded that the decree obtained in OS. 39 of 2012 is an exparte decree and it is obtained by fraudulent means and the suit is barred by limitation. As seen from the agreement of sale executed by Krishnaiah in favour of D.1 22 the time is not essence of the contract and in the said agreement it was mentioned in clear terms as and when required by the first defendant herein the said Krishaniah will execute a registered sale deed. In such circumstances, the period of limitation is reckons when the executor of agreement of sale is refused to execute a registered sale deed infavour of the first defendant herein. Hence it cannot be said that the suit in OS. No.39 of 2012 is barred by limitation.
The plaintiffs pleaded that athe decree in Os. 39 of 2012 is an exparte decree. Either the decree is an exparte or contest, there is no variation in its validity in the eye of law until the exparte decree is in force and up to set aside the same. Hence, there is no force in the pleas taken by the plaintiffs.
Even as seen from the pleadings and arguments of the plaintiffs if the court believes the execution of agreement of sale in favour of the husband of the plaintiff by
K.Krishnaiah and filing of suit by the husband of the plaintiff on the file of this court. It is settled law when there are two documents in respect of one property executed by the original land holder the prior document prevails over the subsequent document. Even as seen from the both agreements of sale executed by Krishnaiah in favour of husband of plaintiff and in favour of the first defendant the agreement of sale executed in favour of the first defendant is the old document it only prevails rather that the agreement of sale executed by Krishnaiah in favour of husband of the plaintiff.
This is a suit filed by the plaintiffs against the defendants for permanent injunction the entire burden is lies on the plaintiffs to establish their case and to prove their possession over the suit schedule property by the date of filing of the suit. But, admittedly the plaintiffs failed to establish their possession over the suit schedule property by the date of filing of the suit. Hence this court holds that the plaintiffs are 23 failed to prove their possession and enjoyment over the suit schedule property by the date of filing of the suit.
Issue No.2 and 3.
2. Whether the plaintiff is entitled to seek permanent injunction in respect of suit schedule property as prayed for?
3. To what relief?
As this is a suit for permanent injunction plaintiff has to establish that they are in possession and enjoyment of the suit schedule property by the date of filing of the suit and the possession is lawful one and the defendants are interfering with the possession and enjoyment of the plaintiff. In the present case in hand as Issue No.1 decided against the plaintiffs and in favour of the defendants the plaintiffs are not entitled for permanent injunction in respect of suit schedule property.
Permanent injunction is an equitable relief. The for person who seek, the permanent injunction must come to the court with clean hands but, in the present case in hand the caveat petition which filed by the first defendants much prior to filing of the suit but, even then the plaintiffs failed to mention all the material facts in respect of suit schedule property in their plaint, they suppressed everything simply they have mentioned that suit schedule property belongs to the plaintiffs. But their documents itself shows that originally that property belongs to Annamalai Naicker, from him Krishnaiah purchased that property thereafter it was purchased by the husband of plaintiff under agreement of sale and first defendant also, there were previous litigation in respect of suit schedule property by knowing all those facts without disclosing the same the plaintiff filed the present suit as such she came to the court with unclean hands on this ground also the suit is not maintainable and it is liable to dismissed.
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In the result suit is dismissed no costs.
Dictation given to Typist and typed by her, verified, Corrected and pronounced by me in the open court on this, the 26 th day of April, 2023.
Sd/-B.V.Sulochana Rani,
II ADDL. JUNIOR CIVIL JUDGE,
CHITTOOR.
Appendix of evidence
Witness is examined on behalf of the Plaintiffs : Defendants:
PW1 : T.Rajendran DW.1 : P.Thualsirami Reddy PW.2 : E.Gangadharam DW.2 : V.Ramanarayana Reddy PW.3 : T.Kannaiah
EXHIBITS MARKED ON BEHALF OF THE
Plaintiff :
Ex.A1 : Served copy of caveat petition filed by the 1st defendant dated 09.08.2017
Ex.A2 : Office copy of caveat petition filed by us dated 14.08.2017
Ex.A3 : Certified copy of D.K.T. patta obtained through R.T.I. vide patta no.B9/250/4/70 stands in the name of one Yellaiah/1st plaintiff
Ex.A4 : I- B extract stands in the name of 1st plaintiff.
Ex.A5 : Pattadar adangal obtained through mee-seva dated 12.08.2017 stands in the name of 1st plaintiff.
Defendants :
Ex.B.1 : Unregistered sale deed dt .4.11.1992 executed by the first plaintiff in favour of mother of first defendant.
Ex.B.2 : Show cause notice dt.5.8.2017 issued by Tahsildhar G.D.Nellore to the first defendant
Ex.B.3 : Order of Thasildhar, G.D.Nellore dt. 21.8.2017 in ROC.A/437/2017
Ex.B.4 : Unregistered sale deed dt31.10.1992 executed by the first plaintiff in favour of the second defendant.
Ex.B.5 : Unregistered sale deed dt 4.11.1992 executed by the first plaintiff in favour of the 4th defendant
Ex.B.6 : Unregistered sale deed dt 4.11.1992 executed by the first plaintiff in favour 25 of the father of the 5th defendant
Ex.B.7 : Show cause notice dt.5.8.2017 issued by Tahsildhar G.D.Nellore to the first defendants
Ex.B.8 : Unregistered sale deed dt 4.11.1992 executed by the first defendant in favour of the 3rd defendant
Ex.B.9 : Unregistered sale deed dt 31.10.1992 executed by the first plaintiff in favour of 6th defendant
Ex.B.10 : Served copy of proceedings of Thasildhar, G.D.Nellore dt. 21-08-2017 under
AP assigned lands POT Act against the defendants No.1, 4 to 7 as well as the plaintiffs herein in connection with proceedings in ROC./A/437/2017.
Sd/-BVSR
II AJCJ, CTR
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