O.S.No.358 of 2007, Page 1 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE,
NUZVID.
Present :- Sri. C.K.V.SATYAKANTH KUMAR,
FIRST ADDITIONAL JUNIOR CIVIL JUDGE, NUZVID,
FAC. PRINCIPAL JUNIOR CIVIL JUDGE, NUZVID.
Thursday, this the Thirty First [31st]day of August, 2018.
ORIGINAL SUIT No.358 of 2007
Between:
1. Pinniboyina Seshaiah, Son of Borraiah, Hindu, aged about 72 years, Agriculturist, resident of Gopavaram Village, Musunuru Revenue Mandalam, Krishna District, Nuzvid Junior Civil Judge’s Court. [Died].
2. Pinniboyina Chittemma, Wife of Late Seshaiah, Hindu, aged 65 years, Properties and resident of Gopavaram Village, Musunuru Mandal, Krishna District, Nuzvid J.C.J.C.
3. Pinniboyina Linga Swamy, Son of Late Seshaiah, Hindu, aged 48 years, Properties and resident of Gopavaram Village, Musunuru Mandal, Krishna District, Nuzvid J.C.J.C.
4. Pinniboyina Nagarjuna, Son of Late Seshaiah, Hindu, aged 35 years, Properties and resident of Gopavaram Village, Musunuru Mandal, Krishna District, Nuzvid J.C.J.C.
5. Kancharla Drowpadi, Wife of Yedukondalu, Hindu, aged 40 years, Housewife and resident of Mukkollupadu Village, Nuzvid Mandal, Krishna District, Nuzvid J.C.J.C.
6. Pakanati Rukmini, Wife of Nageswara Rao, Hindu, aged 38 years, Housewife and resident of Yarravarigudem Village, Lingapalem Mandal, West Godavari District, Chinthalapudi J.C.J.C.
[The Plaintiffs No.2 to 6 are added as the Legal
Representatives of the Plaintiff No.1, as per Orders, dated
26.08.2016, in I.A.No.724 of 2016.] ..… PLAINTIFFS.
And
Chimata Venkateswara Rao, Son of Late Pitchaiah, Hindu, aged about 50 years, Agriculturist and resident of Gopavaram Village, Musunuru Revenue Mandalam, Krishna District, Nuzvid Junior
Civil Judge’s Court.
..... DEFENDANT.
* * *
O.S.No.358 of 2007, Page 2 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
This Suit, coming before me on 17.08.2018, for Arguments in the presence of Sri Gangavelli Rambabu, Sri Kataru Karunakara Rao and Smt.Gangavelli Sandhya, Advocates for the Plaintiffs, and Sri N.Madhava Rao and Sri R.Rama Mohana Rao, Advocate for the Defendant; and upon hearing the both sides; and upon perusing the entire material available on record; and upon having been stood over for consideration till this day, this Court delivered the following:
JUDGMENT
1.This Suit is originally filed by the Plaintiff No.1, for
Permanent Injunction restraining the Defendant, his men, and agents from interfering with his peaceful possession and enjoyment in respect of the Plaint ‘A’ Schedule Property, and for Declaration that himself and the Defendant are the joint owners of the Plaint ‘B’ Schedule Property with equal rights, and for consequential Permanent Injunction restraining the Defendant, his men and agents from interfering with his rights to draw water from the Plaint ‘B’ Schedule Property, in any manner, and for Costs of the Suit. During the pendency of the Suit, the
Plaintiff No.1 had died, and his Legal Heirs and Representatives were impleaded as the Plaintiffs No.2 to 6 in the Suit, and the Plaint was amended accordingly, as per the Orders, dated 26.08.2016, passed in
I.A.No.724 of 2016.
2.The Case of the Plaintiffs, as per the amended Plaint, in brief, is as follows:
The Plaintiff No.1 is the natural son of Pinniboyina Venkaiah and Seethamma of Gopavaram Village. When he was aged about 14 years, Chimata Borraiah and his Wife Mahalakshmi of Gopavaram
Village, adopted him as their Son in 1949, as they were issueless. The natural parents of the Plaintiff No.1 gave the adoption and he was taken
O.S.No.358 of 2007, Page 3 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
adoption by the adoptive parents. The adoptive parents have performed his marriage. As the Plaintiff No.1 and his adoptive parents were illiterates, in the official Records like, Revenue, Census, etc, the Plaintiff
No.1 was described as Pinniboyina Seshaiah, Son of Anjaiah, and in some other records, he was described as Pinniboyina Seshaiah, Son of
Venkaiah.
Chimata Borraiah, the adoptive father of the deceased
Plaintiff No.1, had executed a Registered Gift Deed, dated 25.03.1955, in favour of Chimata mahalakshmi and the Plaintiff No.1, by reserving the right to usufruct for himself during his lifetime, and bequeathed an extent of Ac.1.00 cents of dry land in R.S.No.698 of Gopavaram Village and other properties in favour of Mahalakshmi to enjoy during her lifetime, without any power of alienation and conferred vested reminder rights in the said properties in favour of the Plaintiff No.1. The said Gift was accepted by Mahalakshmi and the Plaintiff No.1. After the death of
Chimata Borraiah and Mahalakshmi, the Plaintiff No.1 became the absolute owner of the properties covered by the Gift Deed, dated 25.03.1955.
In the Re-Survey and Settlement, the extent of Ac1.00 cents in Survey No.698 of Gopavaram Village was Surveyed as an extent of
Ac.0.68 cents in R.S.No.121/5 of Gopavaram Village and Ryotwari Patta was issued to the Plaintiff No.1. To the South of the land in S.No.698 belonging to the adoptive father of the Plaintiff No.1, the father of the
Defendant had got land of Ac.0.90 cents. It was Re-Surveyed as Ac.0.68 cents in R.S.No.121/7 of Gopavaram Village and Ryotwari Patta was granted in favour of the father of the Defendant, namely, Chimata
Pitchaiah. In the Survey and Settlement operations, by mistake, an
O.S.No.358 of 2007, Page 4 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
extent of Ac.0.30 cents belonging to the Plaintiff No.1 and Ac.0.24 cents belonging to the father of the Defendant, was erroneously Re-Surveyed as A.W.D.land in R.S.No.121/6. The Plaintiff No.1 and the father of the
Defendant did not know about the said error, and they continued to be in possession and enjoyment of their respective lands. The land of Ac.0.54 cents in R.S.No.121/6 is situated in between the lands in R.S.No.121/5 and 121/7. The land of Ac.0.30 cents in R.S.No.121/6, which is in possession and enjoyment of the Plaintiff No.1 is the Plaint ‘A’ Schedule
Property.
About 30 years back, the Plaintiff No.1, the Defendant and the brother of the Defendant, namely, Chimata Raghavulu, jointly dug a
Well in Ac.0.30 cents of land belonging to the Plaintiff No.1, to a depth of about 42 feet, by bearing the expenses equally. As the Well is situated in the land of the Plaintiff No.1, the Electricity Service Connection No.406 was obtained in the name of the brother of the Defendant, namely,
Raghunatham, and 3HP Electric Motor also installed to it. The water used to be drawn from the said well in turns, one day each. In December 2003, the Plaintiff No.1 and the Defendant jointly sunk a Bore-Well, in the said Well, to a depth of about 60 feet, by bearing the expenses equally. They had also jointly purchased a second hand 6HP Acqa Texmo
Company Motor from Nandiwada Subramanya Sarma of Gopavaram
Village for Rs.7,000/-, by contributing the amount jointly. They had also jointly purchased second hand pipes from Mandalapu Nageswara Rao of
Peddapativarigudem, Hamlet of Gopavaram Village, for Rs.650/-, by equal contribution. The said 6HP Motor was fixed to the Bore-Well, and the Plaintiff and the Defendant are irrigating their respective lands, by drawing water from the Bore-Well in turns at one day each. The Well,
O.S.No.358 of 2007, Page 5 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
Bore-Well, the Electricity Service Connection and Submersible Motor are shown as the Plaint ‘B’ Schedule Property, in which the Plaintiff No.1 and the Defendant had got equal rights. The Plaintiff No.1 used to pay consumption charges for one year, and the Defendant used to pay the said charges for one year, till Sanction of free power to the Ryots.
In 2005, the Plaintiff No.1 learnt that the Government had granted D-Form Patta, in favor of the father of the Defendant in 1972 for
Ac.0.54 cents in R.S.No.121/6 of Gopavaram Village. Even after the said
Patta, the father of the Defendant did not claim any rights in the
Northern Ac.0.30 cents and it continued to be in possession of the
Plaintiff No.1. The father of Defendant used to cultivate Southern
Ac.0.24 cents in Survey No.121/6. The Ac.0.68 cents in R.S.No.121/5 and
Ac.0.30 cents in R.S.No.121/6, totalling to Ac.0.98 cents, is a single plot on ground.
After knowing about the error in Re-Survey, the Plaintiff No.1 had submitted an Application on 04.12.2005, to the Mandal Revenue
Officer, Musunuru Mandal and the Revenue Divisional Officer, Nuzvid to cancel the D-Form Patta, issued in favour of the father of the Defendant for Ac.0.30 cents in R.S.no.121/6. After conducting enquiry, the Mandal revenue Officer, Musunuru submitted a Report to the Revenue Divisional
Officer, Nuzvid. After due enquiry, by giving Notices to the Plaintiff No.1 and the Defendant, the revenue Divisional Officer, Nuzvid, cancelled the
D-Form Patta, granted in favour of the father of the Defendant for
Ac.0.54 cents in R.S.No.121/6 and ordered for grant of D-Form Pattas in favour of the Plaintiff No.1 for Northern Ac.0.30 cents in R.S.No.121/6, and in favour of the Defendant for Southern Ac.0.24 cents in
R.S.No.121/6, vide Proceedings in R.C.G.163/2006, dated 10.04.2006. As
O.S.No.358 of 2007, Page 6 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
per the said Order, Pattadar Pass Book and Title Deed were issued in favour of the Plaintiff No.1 for Ac.0.30 cents in R.S.No.121/6 i.e., Plaint ‘A’ Schedule Property. The Order of the Revenue Divisional Officer,
Nuzvid, dated 10.04.2006, has become final, as the Defendant did not file any Appeal or Revision against the same.
The Plaintiff No.1 has been cultivating the Plaint Schedule
Property and Ac.0.68 cents in R.S.No.121/5 of Gopavaram Village, by drawing the water from the Well in the Plaint ‘B’ Schedule, without any hindrance from anybody, including the Defendant. Since the last week of the October 2007, the Defendant is proclaiming in the Village that he will not allow the Plaintiff No.1 to cultivate the Plaint ‘A’ Schedule
Property, and to draw water from the Plaint ‘B’ Schedule Property, though he had no right to do so. The Defendant is a rich person and has no respect for the Law. The Plaintiff No.1 raised Tobacco crop in his land and it is fit for transplantation. In order to protect his interest, the
Plaintiff No.1 is compelled to file this Suit for Permanent Injunction in respect of the Plaint ‘A’ Schedule Property, and for Declaration of joint equal rights and consequential Permanent Injunction regarding the
Plaint ‘B’ Schedule Property. Hence, the Suit.
During the pendency of the Suit, the Plaintiff No.1 had died intestate on 16.06.2016, leaving behind his Wife, Sons and Daughters, as
Class-1 Heirs, as per the Provisions of the Hindu Succession Act, 1956 and all his assets and liabilities including the Suit Property devolved upon them. Hence, the Plaintiffs No.2 to 6 have come on record, to protect their possession and enjoyment in respect of the Plaint Schedule
Property, against the Defendant, his men and agents.
O.S.No.358 of 2007, Page 7 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
3.The case of the Defendant, as per his Written Statement, in brief, is as follows:
The averments in the Plaint are not true. The Suit is not maintainable in Law. The father of the Defendant, namely, Chimata
Pitchaiah was a landless poor person. He occupied Ac.0.54 cents of assessed waste land in R.S.No.121/6, which is adjoining on the North of his Ancestral Property of Ac.0.68 cents in R.S.No.121/7 of Gopavaram village about more than 50 years ago. Recognizing his possession and enjoyment, he was issued D-Form Patta regarding the said land in 1969.
Since then, Pitchaiah and his two Sons i.e., Chimata Raghunadham and the Defendant are in possession and enjoyment of the said property. The
Defendant and his brother excavated a Well and Bore-Well therein, and obtained Electricity Service Connection No.406 in the name of
Raghunadham. About 20 years ago, the joint family properties were partitioned by the Defendant and his brother, and a Partition List was executed between them on 17.11.1994. In the said Partition, the land of
Ac.0.54 cents in R.S.No.121/6 and Ac.0.68 cents in R.S.No.121/7 and other properties were allotted to the share of the Defendant and since then, the Defendant is in peaceful possession and enjoyment of the entire contagious plot of Ac.1.22 cents in R.S.No.121/6 and 121/7 of
Gopavaram Village, along with a Well, Bore-Well and Service Connection
No.406. The Plaint ‘A’ and ‘B’ Schedule Properties are part and parcel of
Ac.0.54 cents in R.S.No.121/6.
The Defendant is an illiterate person, depending upon cultivation for his livelihood. Being Politically influenced persons, the
Plaintiff and his Sons managed the Revenue Officials and obtained
Orders from the Revenue Divisional Officer, Nuzvid, against the
O.S.No.358 of 2007, Page 8 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
Principles of Law. He is preparing to file Appeal against the said Orders.
The Plaintiff was never in possession of Plaint Schedule Properties. The
Defendant alone was in peaceful, possession and enjoyment of Ac.1.22 cents of land including the Plaint Schedule Properties. Taking advantage of the illegal Orders, passed by the Revenue Divisional Officer, Nuzvid, the Plaintiff had filed the Suit, by suppressing the real facts, to trespass in to the Plaint Schedule Property and to dispossess him from the same.
The allegations in Para No.3 to 7 are absolutely false, and the Plaintiff is put to strict proof of each and every allegation made in the Plaint. Since the time of granting of D-Form Patta, the father of the Defendant had paid the land Revenue to the Government till his death. Thereafter, the
Defendant used to pay the land Revenue and Electricity Charges, etc.
Recognizing his title, possession and enjoyment, the Revenue Authorities have issued Title Deed and Pattadar Pass Book in favour of the
Defendant for Ac.0.54 cents in R.S.No.121/6, along with other lands. The
Plaintiff has no semblance of right over the Plaint Schedule Property.
There is no cause of action for the Suit, and the one alleged is not true and correct. Hence, the Suit may be dismissed with exemplary costs.
4.Basing on the original pleadings, the then Presiding Officer of this Court had framed the following Issues for Trial.
[1].Whether the Plaintiff is entitled for Permanent Injunction,
restraining the Defendant, his men and agents, from ever interfering with peaceful Possession and enjoyment of the
Plaint Schedule Property of Item No.A as prayed for?
[2].Whether the Plaintiff is entitled for Declaration that the
Plaintiff and the Defendant are joint owners of B Schedule Property, with equal rights?
[3].Whether the Plaintiff is entitled for Permanent Injunction
restraining the Defendant, his men and agents from ever
O.S.No.358 of 2007, Page 9 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
interfering with the Plaintiff’s right to draw water from the ‘B’ Schedule Property in any manner?
[4].To what relief?
5.As the Defendant failed to file Additional Written Statement, after impleading of the Plaintiffs No.2 to 6 in the Suit, the then Presiding
Officer of this Court has treated it as ‘No Additional Written Statement’.
6.On behalf of the Plaintiffs, PWs.1 and 2 are examined, and
Exhibits A.1 to A.12 are marked. On behalf of the Defendant, DWs.1 to 4 are examined, and Exhibits B.1 to B.18 are marked.
7.Heard both sides.
8. Issues No.1 to 3:-
[1]. Whether the Plaintiff is entitled for Permanent
Injunction, restraining the Defendant, his men and agents, from ever interfering with peaceful Possession and enjoyment of the Plaint Schedule Property of Item No.A as prayed for?
[2]. Whether the Plaintiff is entitled for Declaration that
the Plaintiff and the Defendant are joint owners of B Schedule Property, with equal rights?
[3]. Whether the Plaintiff is entitled for Permanent
Injunction restraining the Defendant, his men and agents from ever interfering with the Plaintiff’s right to draw water from the ‘B’ Schedule Property in any manner?
[1]For the sake of convenient discussion, and as the Issues
No.1 to 3 are interdependent, they are taken up together.
[2]To establish his Case, the Plaintiff No.1 has examined his Son, Pinnaboyina Linga Swamy, as PW.1, on his behalf, after obtaining the Permission from the Court, on the ground that due to old age, he is unable to give evidence on his behalf. PW.1 had deposed in
Chief, on par with the averments mentioned in the Plaint, and got Exs.A1
O.S.No.358 of 2007, Page 10 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
to A12 marked on behalf of the Plaintiff. To support his case, the Plaintiff has examined a Third Party as PW.2, and he deposed in Chief, supporting the evidence of PW.1 on all material aspects, with regard to the possession and enjoyment of the Plaintiff No.1 over the Plaint ‘A’
Schedule Property, and his drawing water from the Well and Bore-Well in the Plaint ‘B’ Schedule Property. Both PW.1 and PW.2 had denied the suggestions put forth, with regard to the Defence of the Defendant, in clear terms.
[3]To establish his case, the Defendant has examined himself as DW.1, and got Exs.B1 to B18 marked on his behalf. He deposed in Chief, on par with the averments in his Written Statement. To support his Case, the Defendant has examined the Third Parties, who are said to be the neighbours of the Plaint Schedule Property, as DWs.2 to 4.
The DWs.2 to 4 had deposed in Chief, on par with the evidence of DW.1 regarding the Plaint Schedule Property being in possession of the
Defendant; and that the same was never in possession and enjoyment of the Plaintiffs. DWs.1 to 4 had denied the suggestions put forth by the
Plaintiffs, with regard to their exclusive possession and enjoyment over the Plaint ‘A’ Schedule Property, and having joint right in the Plaint ‘B’
Schedule Property.
[4]The Learned Counsel for the Plaintiffs has argued, both orally and in the Written Arguments, that the specific pleadings of the
Plaintiff No.1 that the Plaint A Schedule Property is the Part and Parcel of his land of Ac.1.00 gifted to him under Ex.A1, and that the Well and
Bore-Well were jointly dug by the Plaintiff No.1, the Defendant and his brother jointly, and that the Plaintiff No.1 and the Defendant used to draw water in turns, and pay the electricity charges for alternate years,
O.S.No.358 of 2007, Page 11 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
are not specifically denied by the Defendant in his Written Statement; and hence, the Provisions of Order 8, Rules 2 and 5 of C.P.C., apply; and the case of the Plaintiffs is to be inferred as admitted by the Defendant; and that Ex.A2 was implemented by issuing Exs.A3 and A4 to the
Plaintiff No.1; and that after remaining silent for 10 years after passing of the Orders in Ex.A2, the Defendant had preferred Revision before the
Joint Collector, and when it was dismissed, the Defendant preferred Writ
Petition before the Hon’ble High Court, and obtain interim suspension of the Orders in Exs.A2 and A12; and that as the Orders were already implemented, the stay obtained by the Defendant is not of much use; and that the Case of the Plaintiffs is established, and the Suit may be decreed, as prayed for by the Plaintiffs. He has relied upon the following decisions in this regard.
(i) AIR 1966 Supreme Court 292, in the case of Tek
Bahadur Bhujil Vs. Debi Singh Bhujil and others, wherein it was held that when P has alleged in the Plaint that A and R were his brothers belonging to same joint family, centering round their common mother, and there was no specific denial that brothers did not form joint family, and there were no issues and evidence therefor in the Lower Court’s records, the Plea that P, being uterine brother, could not have been member of the joint family, was held to be unacceptable in the Appeal.
(ii) AIR 1992 Supreme Court 1439, in the case of M/s.
Shree Chamundi Mopeds Ltd., Vs. Church of South India Trust
Association, Madras, wherein it was held that the quashing of an order results in the restoration of the position as it stood on the date of the passing of the order, which has been quashed; and that the stay of operation of an order does not, however, lead to such a result; and that it only means that the order, which has been stayed, would not be operative from the date of passing of the stay order, and it does not mean that the said order has been wiped out from existence.
O.S.No.358 of 2007, Page 12 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
(iii) AIR 1987 Madhya Pradesh 156, in the case of State of Madhya Pradesh Vs. Sardarmal, wherein it was held that the denial of any fact averred by the Plaintiff must be specific; and that in absence of any specific denial, the inference regarding admission of averment in the Plaint can be drawn, as has been drawn by the lower
Appellate Court, cannot be assailed on any legitimate grounds; and that it is not disputed that the Rule of Traverse, under Order 8, Rule 5 of
C.P.C., permits such an inference.
(iv) AIR 1964 Supreme Court 538, in the case of Badat and Co., Bombay Vs. East India Trading Co., wherein it was held that the Rules 3, 4 and 5 of Order 8 of C.P.C. form an integrated code, dealing with the manner in which the allegations of fact in the Plaint should be traversed, and the legal consequences flowing from its non- compliance; and that the Written Statement must deal specifically with each allegation of the fact in the Plaint, and when a Defendant denies any such fact, he must not do so evasively, but answer the point of substance; and that if his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted; and that in such an event, the admission itself being proof, no other proof is necessary; and that under the Proviso to Rule 5, the Court may, in its discretion, require any fact so admitted, to be proved, otherwise than by such admission; and that the
Proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a Party, or to relieve him from the benefits of an accidental slip or omission, but not to help a party, who designedly made vague denials, and thereafter, sought to rely upon them for non-suiting the Plaintiff.
[5]The Learned Counsel for the Defendant has argued, both orally and in the Written Arguments, that the evidence of PW.1 clearly shows that the extent in R.S.No.698 is only Ac.0.68 cents; and that the Sale Deed of Chimata Borraiah is not filed; and that the Fair
Adangal shows that the extent of old R.S.No.698 is only Ac.0.68 cents, and not Ac.1.00 cents; and that Exs.B1 and B2 prove that the land of
Ac.0.54 cents in S.No.121/6 is an Assessed Waste Land, and that it was
O.S.No.358 of 2007, Page 13 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
assigned to the father of the Defendant; and that Exs.B7 to B16 prove that the assigned Property was in the possession and enjoyment of the
Defendant; and that the Revenue Divisional Officer, Nuzvid has no right to cancel the D-Form Patta issued to the father of the Defendant in 1969, after lapse of more than 35 years, at the instance of the Plaintiffs, who are politically influential persons; and that the Orders of the R.D.O., in
Ex.A2 were not implemented till now, by issuing fresh D Form Pattas; and that the Defendant had denied the allegations in Paragraphs No.3 to 7 in the Plaintiff, specifically, by saying that the said allegations are false and incorrect; and that the Writ Petition No.37244 of 2017 is pending
before the Hon’ble High Court of A.P., and that in W.P.M.P.No.46274 of
2017, interim suspension was granted, by finding that the Orders suffer from vice of non application of mind; and that the Orders of the R.D.O., are not valid under the eye of law; and that the Plaintiffs have no semblance of right to seek any relief against the Defendant, in respect of the Plaint ‘A’ Schedule Property; and that PW1 had admitted that the
Defendant and his brother excavated a well and Bore-Well in the land of
Ac.0.54 cents, when they were joint; and that the Plaintiffs have no right to seek any relief in respect of the Plaint ‘B’ Schedule Property; and that the evidence adduced by the Defendant shows his exclusive possession and enjoyment over the Plaint Schedule Properties; and hence, the Suit may be dismissed with exemplary Costs. He had relied upon the following decisions in this regard.
(i) 2011 [1] ALD 676, in the case of Mujeebunissa
Begum Vs. Joint Collector, Medak District at Sangareddy and
another, wherein it was held that when the Report of the Mandal
Revenue Officer, dated 04.04.2007, on the basis of which the Pattas were cancelled, does not reflect the facts as existed on the date of
O.S.No.358 of 2007, Page 14 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
assignment, the cancellation of the Assignments by the Joint Collector, on the basis of such Report, is unjustified.
(ii) 2012 [1] ALD [NOC 7], in the case of Jinka
Chendrayudu Vs. Joint Collector, Kadapa District and others,
wherein it was held that the Cancellaton of D-Form Patta, after a lapse of nearly 30 years, by issuing a Show Cause Notice without mentioning the reasons for its cancellation is not legal; more so, when it is done at the instance of the Respondents No.4 and 5, who are inimical to the
Petitioner, as he filed Suit against them for Declaration of Title over
Property, as they tried to encroach the Property.
(iii) 2017 SCC OnLine Hyd 56, in the case of Lanka
Mohan and two others Vs. The State of Telangana, represented by
its Chief Commissioner of Land Administration, Nampally Road,
Hyderabad and two others, wherein it was held that the Cancellation of Pattas, done beyond a reasonable period of time, by an incompetent
Authority, is not valid under the Law.
[6]It is clear from the contentions of both Parties, that the
Plaintiff No.1 had claimed to be in possession and enjoyment of the
Plaint ‘A’ Schedule Property; and that the Plaint ‘B’ Schedule Property, consisting of the Well, Bore-Well and Motor, etc, is the joint property of himself and the Defendant, and sought for Declaration of joint rights, and consequential Permanent Injunction in respect of the Plaint ‘B’
Schedule Property, and mere Permanent Injunction in respect of the
Plaint ‘A’ Schedule Property. The burden is very much upon the Plaintiffs to prove their exclusive possession and enjoyment of the Plaint ‘A’
Schedule Property, and that they have joint rights in respect of the Plaint ‘B’ Schedule Property.
[7]Due to old age, the Plaintiff No.1 did not give evidence and sought permission to adduce the evidence of his Son, Pinniboyina
Linga Swamy as a Witness on his behalf. Permission was accorded. The
O.S.No.358 of 2007, Page 15 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
said Linga Swamy is examined as PW.1. In his Cross Examination, PW1 deposed that he did not obtain Fair Adangal for the Property covered under Ex.A.1; and that D-Form Patta was not issued to him or to his father as per the Proceedings of the Revenue Divisional Officer, Nuzvid.
A perusal of the evidence of PW.1 shows that he had denied all the suggestions put forth regarding the defence taken by the Defendant; and that he gave an admission that the Defendant and his brother while they were joint, got excavated a Well and Bore-Well in the Ac.0.54 cents. But,
PW.2 deposed that the Service Connection in respect of Plaint ‘B’
Schedule Property stands in the name of the brother of the Defendant, namely, Ranganadham. He denied the suggestions that he is deposing false that the Plaint Schedule Property was never in possession of the
Plaintiff; and that it is in the Possession of the Defendant.
[8]It is clear from the evidence of DW.1 that Plaintiff acquired a land of Ac.0.68 cents from Borraiah, and he had acquired
Ac.1.22 cents in R.S.No.6 and 7 in a single Plot, and to its North, the land of the Plaintiff is situated, and for the last 30 years, the Plaintiff is cultivating the Northern land; and that the Plaintiff is drawing water from the Well till last year, and they used to receive Rs.2,000/- or
Rs.3,000/- from the Plaintiff for using the water from the Bore-Well; and that he came to know after filing of this Suit, about the Order of the
Revenue Divisional Officer, Nuzvid that the Plaintiff is in possession of
Ac.0.30 cents and he is in possession of Ac.0.24 cents out of Ac.0.54 cents; and that the Order of the Revenue Divisional Officer, Nuzvid was not stayed till date. He denied that he is not in possession of ‘A’ Schedule
Property; and that he had filed Revision after lapse of 9 years; and that he has no right or title or possession over the Plaint ‘A’ Schedule
O.S.No.358 of 2007, Page 16 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
Property, and as he obstructed the Plaintiff, from taking water from the
Bore-Well, he filed this Suit.
[9]DW.2 deposed that the Plaintiff used to draw water from the Bore-Well situated in the land of the Defendant; and that since the Defendant is not giving water to the Plaintiffs, they are not cultivating their lands; and that the land of the Plaintiffs and Defendant are in two bits, divided by a bund. DW.3 deposed that there is no Bore-
Well in the land of Ac.0.70 cents of the Plaintiff No.1; and that the Well is in the land of his Senior Paternal Uncle, and the Service Connection is in the name of Venkata Ramaiah; and that the Plaintiff No.1 and the
Defendant used to draw water from the Bore-Well situated in the land of the Plaintiff; and that the land of Ac.0.30 cents, and Ac.0.70 cents of the land of the Plaintiff is in a single Plot. DW.4 deposed that there is Bore-
Well in the Plaint Schedule Property and the Defendant alone is using water from the said Bore-Well. He denied that he does not know anything about the Suit Schedule Property.
[10] It is clear from the evidence adduced by both parties that PW.1 and PW.2 had deposed on par with the contentions of the
Plaintiff No.1, while DW.1 and DW.2 deposed on par with the contentions of the Defendant, and DW.3 admitted that the land of Ac.0.30 cents [Plaint ‘A’ Schedule property], and Ac.0.68 cents of the land of the
Plaintiffs are in single bit, even though he deposed on par with the evidence of DW.1 regarding the other aspects. DW.4 deposed a new version that the Defendant alone is using the Bore Water, as DW.1 admitted that the Plaintiffs used the Bore water till one year prior to the date of his giving the evidence. So, the evidence of DW.4 is not believable. DW.3 is a close relative of DW.1, as his niece was given in a
O.S.No.358 of 2007, Page 17 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
marriage to the third Son of the Defendant. So, the admission of DW.3 that the land of Ac.0.30 cents and Ac.0.70 cents of the land of the
Plaintiff is in a single Plot till today, has to be taken in to consideration.
It is sufficient to establish that the Plaintiffs are in possession of the disputed Plaint ‘A’ Schedule Property, as on the date of filing of the Suit.
[11] Now, it is relevant to look in to the Documents filed by both parties. Ex.A.1 is the Registered Gift Deed, dated 25.03.1955, executed in favour of Mahalakshmi and the Plaintiff No.1 by Chimata
Borraiah. As seen from the said Document, it is mentioned that the
Plaintiff No.1 is the adopted Son; and that the Donor is gifting the property by retaining the right to use usufruct; and that after his death his Wife Mahalakshmi shall enjoy the same without right of alienation till her life time, and after her death, the Plaintiff No.1 shall enjoy the same with absolute rights; and that right is conferred under the said
Document. As seen from the Schedule therein, three items were gifted.
The Item No.1 is a House site in Survey No.43, Block No.1. Item No.2 is in respect of Residential Site. Item No.3 is in respect of land of Ac.1.00 cents in Survey No.698, Patta No.126 with specific boundaries of East :
Land of Sutru Peraiah, South : Land of Chimata Pitchaiah, West : Donka and North : Land of Pinniboyina Suraiah.
[12] Ex.A.2 is the Served Copy of the Proceedings of the
Revenue Divisional Officer, Nuzvid in Rc.G.163/2006, dated 10.04.2006.
As seen from the said Orders, the Plaintiff No.1 had made an Application for issuance of Pattadar Pass Book and Title Deed for Ac.1.00 cents in
S.No.698 [R.S.No.121/5] and the Mandal Revenue Officer, Musunuru conducted an enquiry and reported that after Survey and Settlement operations, Ac.0.68 cents in R.S.No.121/5 and Ac.0.68 cents in
O.S.No.358 of 2007, Page 18 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
R.S.No.121/7 are in possession and enjoyment of the Plaintiff No.1 and the Defendant respectively; and that the land of Ac.0.54 cents in
R.S.No.121/6 was classified as A.W.D., and it was assigned to Chimata
Pitchaiah [i.e., father of the Defendant] under D-Form Patta in 1972; and that he is in enjoyment of Ac.0.24 cents in R.S.No.121/6, and the remaining Ac.0.30 cents in R.S.No.121/6 is in enjoyment of the Plaintiff
No.1; and that the Defendant obtained Pass Book and Title Deed for
Ac.0.68 cents in R.S.No.121/7 and Ac.0.54 cents in R.S.No.121/6; and that he is in possession of Ac.0.24 cents alone in R.S.No.121/6, and hence, D-Form Patta requires cancellation and fresh Pattas as per enjoyments are to be issued. On that, Notices were issued to both parties, and the Advocate on behalf of the Defendant, filed a Counter on 18.03.2006, stating that the land of Ac.0.54 cents in R.S.No.121/6 was granted on D-Form Patta, and Revenue Records reveal the possession and enjoyment. As per the Enjoyment Sketch, submitted by the Mandal
Revenue Officer, Musunuru, Ac.0.24 cents in 121/6 is in enjoyment of the
Defendant, and the remaining Ac.0.30 cents is in the enjoyment of the
Plaintiff. Hence, the Revenue Divisional Officer, Nuzvid, has ordered for cancellation of D-Form Patta in the name of Chimata Pitchaiah, and for issuance of fresh D-Form Pattas as per enjoyment to the Defendant and the Plaintiff No.1, and for cancellation of entries made in the Pass Book and Title Deed issued to the Defendant, and directed the Mandal
Revenue Officer, Musunuru to take necessary further action in the matter.
[13] The Defendant had contended that he came to know about the Orders, passed by the Revenue Divisional Officer, Nuzvid, only after filing of the Suit. But, Ex.A.2 discloses that the Defendant had
O.S.No.358 of 2007, Page 19 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
engaged an Advocate, and contested the Proceedings before the
Revenue Divisional Officer, Nuzvid, by filing his Counter. So, it can be said that Ex.A2 falsifies the contention of the Defendant in this regard.
[14] Ex.A.3 is the Pattadar Pass Book, issued in the name of the Plaintiff No.1 on 12.09.2006. Ex.A.4 is the Title Deed Book, issued in the name of the Plaintiff No.1 on 12.09.2006. As seen from the recitals in
Ex.A.3 and A.4, the Patta Number is mentioned as 1284, and the Plaintiff
No.1 is shown to be in possession of Ac.0.30 cents in S.No.121/6 and
Ac.0.68 cents in S.No.121/5, in total Ac.0.98 cents. It is also mentioned in Ex.A4 that it was issued as per the Proceedings of the Revenue
Divisional Officer, Nuzvid in Ex.A4. Ex.A.5 is the Valuation Certificate, issued by the Village Revenue Officer, Gollapudi Group on 05.11.2007, regarding the possession and enjoyment of the Plaintiff No.1 over
Ac.0.30 cents in S.No.121/6 and Ac.0.68 cents in S.No.121/5. Ex.A.6 is the Copy of Adangal, issued in the name of the Plaintiff No.1 for 1414
Fasli. It shows that he is having land of Ac.0.30 cents in Survey No.121/6 and Ac.0.68 cents in S.No.121/5 and it is cultivated with water from joint
Bore. It is clear that subsequent to passing of the Orders of the Revenue
Divisional Officer, Nuzvid in Ex.A.2, his Orders were given effect by issuing Ex.A.3 and A.4 in the name of the Plaintiff No.1, and by mutating his name in the revenue Records, as per Ex.A.5 and A.6.
[15] Ex.A.7 is the Permanent Receipt, dated 17.11.1995, for
Service Connection No.406. Ex.A.8 is the Permanent Receipt, dated 12.05.1995, for Service Connection No.406. Ex.A.9 is the Receipt dated 11.08.1997, for Service Connection No.406. Ex.A.10 is the Receipt,
dated 11.02.1999, for Service Connection No.406. Ex.A.11 are the Two
Receipts, dated 19.06.2003, for the Service Connection No.638 and 406
O.S.No.358 of 2007, Page 20 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
respectively. Ex.A.7 to A.11 support the contentions of the Plaintiff No.1 that he used to pay the Electricity Charges, every alternate year for the
Service Connection No.406. It shows that the Well, Bore-Well, Motor, etc, in the Plaint ‘B’ Schedule are in joint possession and enjoyment of the
Plaintiff No.1 and the Defendant.
[16] Ex.A12 is the Served Copy of the Proceedings of the
Joint Collector and District Magistrate, Krishna, Machilipatnam, dated 20.09.2017. As seen from the said Proceedings, the Defendant herein had preferred a Revision against the Orders of the Revenue Divisional
Officer, Nuzvid, dated 10.04.2006, in Ex.A2, and the Appellate Authority had upheld the Orders of the Revenue Divisional Officer, Nuzvid, passed in Ex.A2, and confirmed that the said Action is in accordance with the
Act and Rules. The Revision Petitioner, i.e., the Defendant herein was informed that the Appeal can be filed within 90 days from the date of the issue of the said Order. It makes clear that the Proceedings in Ex.A2 were upheld by the Appellate Authority in Ex.A12.
[17] The Defendant has relied upon Exs.B.1 to B.18 in support of his contentions. Ex.B.1 is the Form-D Patta, issued in the name of Chimata Pitchaiah, for the land of Ac.0.54 cents in Survey
No.121/6 of Gopavaram Village. It is mentioned in the said Patta that the
Market Value is Rs.270/- and 1 to 14 installments @ Rs.28/- and 15th installment @ Rs.25/-. In Page No.2 of Ex.A.2, it also specified that the
Assignment is subject to payment of land value in 15 installments together with interest @ Rs.500/- per annum. It is also mentioned that the first installment falls due on 10.01.1971 or F.1381. It was signed by the issuing authority on 26.12.2009. Ex.B.2 is the Order of Proceedings of the Tahsildar, Nuzvid, wherein it is stated that Chimata Pitchaiah is
O.S.No.358 of 2007, Page 21 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
issued Patta temporarily for the land in Ac.0.54 cents in Survey
No.121/6. Since the issuance of D-Form Patta in favour of Chimata
Pitchaiah, i.e., the father of the Defendant, is admitted even by the
Plaintiff No.1, and as the same is mentioned in the Proceedings in Ex.A2, this Court is of the opinion that Exs.B1 and B2 are not of much help to the case of the Defendant.
[18] Ex.B3 is the Old Ryot Pass Book issued in the name of
Chimata Raghunadham, Son of Pitchaiah. As seen from the said
Document, Chimata Raghunadham is in possession of Ac.0.54 cents in
S.No.121/6 and Ac.0.68 cents in S.No.121/7; the Particulars in the
Columns No.5 and 11 were mentioned in Ball Pen, while the remaining
Particulars were mentioned in Ink Pen. Further, in Column No.20, a
Registered Partition Deed, bearing No.1409, dated 31.05.1977 is referred therein. But, the Copy of the said Partition Deed is not filed
before the Court. It is not the case of the Defendant that his brother
Raghunadham was in possession and enjoyment of the disputed Property in 1977. On the other hand, it is the case of the Defendant that his father, his brother and himself jointly possessed and enjoyed the disputed Property, and their Property exclusively; and that himself and his brother had partitioned the Property, and later Unregistered
Partition List was executed between them in 1994. So, the recitals in
Ex.B3 are contra to the case of the Defendant.
[19] Ex.B4 is the Title Deed Book issued in the name of the
Defendant. As per the recitals therein, the Patta Number is 333, and the
Defendant is shown to be in possession of Ac.0.54 cents in S.No.121/6, and Ac.0.68 cents in Sy.No.121/7, by way of Succession from father [Pithrarjitham], by rounding off the word ‘Anuvamsikam’.
O.S.No.358 of 2007, Page 22 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
[20] Ex.B5 is the True Copy of the Fair Adangal Extract,
dated 06.11.2005, issued by the Tahsildar, Musunuru Mandal. As seen
from the recitals therein, Chimata Pitchaiah, is shown as Pattadar for
Ac.0.54 cents in S.No.121/6. Ex.B6 is the True Copy of the Revised Fair
Adangal Extract, dated 06.11.2005, issued by the Village Revenue
Officer, Gopavaram, Musunuru Mandal. As seen from the recitals therein, for the land of Ac.0.68 cents in S.No.121/5, Challadi Venkaiah and Velpula Pentaiah are shown as Pattadars. With respect to the
Particulars of Sy.No.121/6 of Ac.0.54 cents, it is mentioned as ‘See Last
Page’. But, the said Last Page is not filed along with Ex.B6. So, it can be said that Ex.B6 is an incomplete Document. Exs.B5 and B6 do not prove that the extent of land in S.No.698 is Ac.0.68 cents only. On the other hand, the recitals in Ex.A1, clearly show that the land of Ac.1.00 in
S.No.698 was gifted to the Plaintiff No.1 herein.
[21] Ex.B7 is the Copy of the Assessment Notice, dated 31.01.2016, issued to Ch.Raghunath, for Regularization of Additional
Load for Service Connection No.406. Ex.B8 is the Two Electricity
Demand Notices, in the name of Ch.Raghunadh, for Service Connection
No.406. Ex.B9 is the Seven Electricity Payment Receipts, for Service
Connection No.406. Since the Plaintiffs admitted that the Service
Connection No.406 was obtained in the name of the Chimata
Raghunadh, it can be said that Exs.B7 to B9 are not at all helpful to the case of the Defendant. They cannot be taken as a Proof of exclusive payment of Charges by the Defendant, as claimed by him.
[22] Ex.B10 is the Unregistered Partition List, dated 17.11.1994, executed between Chimata Raghunadh and the Defendant, in respect of their family Property, including the disputed Property. As
O.S.No.358 of 2007, Page 23 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
seen from the recitals therein, the Partition was effected regarding the joint family properties long back, and that to have a Document, the
Partition List is prepared. In the Schedule therein, the Lands of Ac.0.54 cents in R.S.No.121-6 and Ac.0.68 cents in R.S.No.121-7, and other lands were said to have been allotted to the Defendant herein. It is very much subsequent to the Document in Ex.B3. Yet, the Registered Partition in
Document No.1409, dated 31.05.1977, which is referred in Ex.B3, is not at all mentioned herein. Unless the Copy of the Registered Partition
Deed, dated 31.05.1977, is filed before the Court, it cannot be said that the disputed Property of Ac.0.30 cents out of Ac.0.54 cents in
R.S.No.121/6 is in possession and enjoyment of the Defendant and his brother Raghunadham. For the reasons best known to the Defendant, he did not at all plead about the said Registered Partition, and did not produce Copy of the same. Further, no Person concerned with Ex.B10, i.e., Chimata Raghunadham, or the Attestors and Scribe of Ex.B10 are not examined by the Defendant to prove the said Partition. Hence,
Ex.B10 alone cannot be taken as a Proof that the Defendant is in possession and enjoyment of Ac.0.54 cents, including the disputed Plaint ‘A’ Schedule Property of Ac.0.30 cents in R.S.No.121/6.
[23] Ex.B11 is the Land Revenue Payment Receipt, dated 11.02.1977, issued in the name of Chimata Pitchaiah, who is the father of the Defendant, for Fasli 1386. Ex.B12 is the Land Revenue Payment
Receipt, dated 30.01.1976, issued in the name of Chimata Pitchaiah, who is the father of the Defendant, for Fasli 1385. Ex.B13 is the Land
Revenue Payment Receipt, dated 05.03.1975, issued in the name of
Chimata Pitchaiah, who is the father of the Defendant, for Fasli 1385.
Ex.B14 is the Land Revenue Payment Receipt, dated 21.02.1982, issued
O.S.No.358 of 2007, Page 24 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
in the name of Chimata Raghunadham, who is the brother of the
Defendant, for Fasli 1391, and 1390. Ex.B15 is the Land Revenue
Payment Receipt, dated 30.01.1995, issued in the name of the
Defendant, for Fasli 1404. Ex.B16 is the Land Revenue Payment Receipt,
dated 28.01.1993, issued in the name of the Defendant, for Faslis 1400,
1401 and 1402. In all the said Documents in Exs.B11 to B16, the Patta
Numbers alone are mentioned as 396, 1005 and 646, and the Survey
Numbers and the Extent of Lands are not mentioned. At best, the said
Cist Receipts can taken as a Proof of Payment of Tax, and they cannot be taken into consideration regarding physical possession of the disputed
Land by the Defendant.
[24] Ex.B17 is the Certified Copy of the Adangal For 1414
Fasli, issued by the Tahsildar, Musunuru Mandal. As seen from this
Document, the Defendant is in possession of the land of Ac.0.54 cents in
R.S.No.121/6, with Khatha Number 333. But, the said Khatha Number is not mentioned in Exs.B15 and B16. This Document is filed by the
Defendant to show that the recitals in Exs.A5 and A6 are false. As stated supra, Ex.A5 is the Certificate, dated 05.11.2007, issued by the Village
Revenue Officer, Gollapudi Group, Musunuru Mandal, Krishna District., and Ex.A6 is the Copy of the Adangal, for Falsi 1414, issued in the name of the Plaintiff No.1, by the Village Revenue Officer, Gollapudi Group,
Musunuru Mandal, Krishna District. Since Exs.A5 and A6 are issued by the Village Revenue Officer, who is not competent Authority to issue
Certified Copy of the Revenue Records, they cannot be taken into consideration, in view of the Document in Ex.B17, which is the Certified
Copy issued by the Competent Authority, i.e., the Tahsildar of Musunuru
Mandal. However, Exs.A3 and A4, which are issued by the Revenue
O.S.No.358 of 2007, Page 25 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
Authorities, are not discredited by the Defendant in any manner. Since
Exs.A3 and A4 were issued as per the Procedure laid down under the law, they can be taken as a Proof of Possession of the Plaintiff No.1, over the Plaint ‘A’ Schedule Property.
[25] Ex.B18 is the Served Copy of the Orders, dated 07.11.2017, passed in W.P.M.P.No.46274 of 2017 in W.P.No.37244 of 2017, filed by the Defendant against the Plaintiff No.1 and others. As seen from the said Orders, the present Defendant had preferred the said
Writ Petition, against the Orders, dated 20.09.2017, passed confirming the Orders, dated 10.04.2006, and it was observed in the said Orders that both the Orders suffer from the vice of non-application of mind, since they do not advert to any Revenue Record to come to the
Conclusion; and therefore, there shall be interim suspension, as prayed for. It means that the Proceedings in Ex.A12, which had confirmed the
Proceedings in Ex.A2, were suspended by the Hon’ble High Court, during the pendency of the present Suit.
[26] It is clear that the Plaintiff No.1 had filed this Suit, basing on the Orders passed in Ex.A2, and the subsequent records obtained by him in Exs.A3 to A6. The Documents produced by the
Defendant in Exs.B1 to B16 are prior to the date of passing of the Orders in Ex.A2 and Ex.A12. It is clear from the Orders in Ex.A2 that the
Defendant had contested the Proceedings before the Revenue Divisional
Officer, Nuzvid, and filed his Counter, by engaging the Advocate therein.
Though the Orders were passed on 10.04.2006, the Defendant did not prefer any Revision against the said Orders, as well as against the issuance of Exs.A3 and A4 to the Plaintiff No.1, till he had preferred the
Revision before the Joint Collector, Machilipatnam in the year 2016. For
O.S.No.358 of 2007, Page 26 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
a period of nearly ten years, the Defendant had remained silent, even though the present Suit is filed by the Plaintiff No.1. Only at the time of adducing his evidence, or after adducing his evidence as DW.1, the
Defendant had filed the Revision before the Joint Collector. After the
Joint Collector had dismissed his Revision, the Defendant had filed Writ
Petition, and obtained Suspension Orders in Ex.B18.
[27] Since Exs.A3 and A4 are already issued as per Law, they have to be taken into consideration, till they are amended or cancelled in accordance with the Provisions of the Act. Moreover, the evidence of PW.1 and PW.2, regarding the Plaintiff No.1 enjoying the
Plaint ‘A’ Schedule Property is not discredited by the Defendant. On the other hand, the evidence of DW.3, who is nearest relative of DW.1, that the site of Ac.0.30 cents and Ac.0.68 cents of the Plaintiff No.1, are in single plot, disproves the claim of the Defendant over the Plaint ‘A’
Schedule Property. Neither the Plaintiffs nor the Defendant had any efforts to get an Advocate Commissioner appointed, to bring the physical features of the Plaint Schedule Property before the Court. Even the
Photographs of the same are not filed.
[28] The evidence of DW.1 that he used to collect Rs.2000/- or Rs.3000/- from the Plaintiff No.1 towards charges for drawing water in the Well, would show that the Plaintiff No.1 is also having a right in the Well. It is supported by the evidence of DW.2, who deposed that the
Plaintiff is not cultivating their land, as the Defendant is not giving water to them. In fact, the Claim of the Plaintiff No.1 regarding the joint digging of the Well, Bore-Well, installation of Motor and Pipes, by meeting the expenses equally, are not specifically denied by the
Defendant. He had simply mentioned that the allegations made in
O.S.No.358 of 2007, Page 27 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
Paragraphs No.3 to 7 of the Plaint are absolutely false. It cannot be taken as a specific denial of the said allegations by the Defendant. At the same time, DW3 deposed that both the Plaintiff No.1 and the Defendant used to draw water from the Bore-Well, situated in the land of the
Defendant; and that the Plaintiffs are not cultivating their land since 2 years. So, it can be said that the Plaintiffs were given to right to draw water from the Well, as it was dug jointly by the Plaintiff No.1 and the
Defendant, as contended by the Plaintiff No.1.
[29] The decisions relied upon by the Learned Counsel for the Plaintiffs are very much applicable to the facts and circumstances of this case, since the Defendant did not make a specific denial of the allegations made in Paragraphs No.3 to 7 of the Plaintiff, except stating that the said allegations are not true and correct. It is not a specific denial, as stipulated in Order 8, Rule 5 of C.P.C., and hence, the Rule of
Traverse can be applied to this case, and it can be inferred that the
Defendant had admitted the contentions of the Plaintiffs in the said
Paragraphs of the Plaint, which are in fact very crucial for the reliefs claimed in the Suit. The Decisions relied upon by the Defendant are not applicable to this case, since the Orders of Cancellation in Ex.A2 were made after giving due opportunity to the Defendant, who had filed his
Counter before the Revenue Divisional Officer, Nuzvid; and as the present Suit was instituted by the Plaintiff No.1 on 14.11.2007, i.e., after one year, seven months, and four days of passing of the Orders in Ex.A2, and after obtaining Exs.A3 and A4 in his name, on the ground that since the last week of October, 2007, the Defendant is proclaiming that he will not allow the Plaintiff to enter into the Plaint ‘A’ Schedule Property, and to draw water from the Plaint ‘B’ Schedule Property. It was not instituted
O.S.No.358 of 2007, Page 28 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
before the initiation of the Proceedings of the Revenue Divisional Officer,
Nuzvid, upon the Application of the Plaintiff No.1, in the year 2006 itself.
In fact, the Defendant had remained silent for a period of 9 years, after passing of Orders in Ex.A2, and preferred the Revision only in 2016.
[30] In view of the above discussion, and considering the facts that the Plaintiffs are able to establish their possession and enjoyment over the Plaint ‘A’ Schedule Property as on the date of filing of the Suit, and that they are drawing water from the Well, Bore-well and
Motor, shown in the Plaint ‘B’ Schedule Property, and that due to objections of the Defendant, the Plaintiff No.1 could not draw water from the Well in the Plaint ‘B’ Schedule Property, and cultivate his land, as well as the Plaint ‘A’ Schedule Property as on the date of filing of the
Suit, this Court concludes and holds that the Plaintiffs are entitled for the relief of Permanent Injunction in respect of the Plaint ‘A’ Schedule
Property, as well as for Declaration of joint rights and Permanent
Injunction in respect of the Plaint ‘B’ Schedule Property. However, considering the fact that the Exs.A2 and A12, which are the Proceedings, under which the claim of the Plaintiffs is based, are suspended by the
Hon’ble High Court, as per the Orders in Ex.B18, this Court is of the
opinion that the reliefs sought by the Plaintiffs can be granted, subject to the result of the dispute in Writ Petition No.37244 of 2017 by the
Hon’ble High Court, and the decision given therein.
Hence, the Issues No.1 to 3 are answered in the favour of the Plaintiffs accordingly.
9. Issue No.4: To what relief ?
In the result, the Suit is decreed, granting Permanent
Injunction, restraining the Defendant, his men and Agents from ever
O.S.No.358 of 2007, Page 29 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
interfering with peaceful possession and enjoyment of the Plaintiffs No.2 to 6 in the Plaint ‘A’ Schedule Property in any manner; and by declaring that the Plaintiffs No.2 to 6 and the Defendant are joint owners of the
Plaint ‘B’ Schedule Property with equal rights, and by granting consequential relief of Permanent Injunction, restraining the Defendant, his men and Agents, from ever interfering with their right to draw water from the Plaint ‘B’ Schedule Property in any manner; and that the Reliefs sought by the Plaintiffs are granted, subject to the result of the dispute in Writ Petition No.37244 of 2017 by the Hon’ble High Court, and the decision given therein. Considering the Circumstances of the case, each
Party is directed to bear its own Costs.
Prepared, corrected and pronounced by me in the open Court on this the 31 st day of August, 2018
First Additional Junior Civil Judge, Nuzvid. FAC Principal Junior Civil Judge, Nuzvid.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFFS
PW.1 : Pinniboyina Linga Swamy.
PW.2 : Nalliboina Ramulu.
EXHIBITS MARKED ON BEHALF OF THE PLAINTIFFS
Ex.A1 : Registered Gift Settlement Deed, dated 25.03.1955, executed by Chimata Borraiah, in favour of his Wife, Chimata Mahalakshmi and adopted Son, Seshaiah [i.e., the Plaintiff No.1].
Ex.A2 : Served Copy of the Proceedings of the Revenue Divisional Officer, Nuzvid, in Rc.G.163/2006, dated 10.04.2006.
Ex.A3 : Pattadar Pass Book issued in the name of the Plaintiff No.1.
Ex.A4 : Title Deed Book issued in the name of the Plaintiff No.1.
O.S.No.358 of 2007, Page 30 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
Ex.A5 : Certificate, dated 05.11.2007, issued by the Village Revenue Officer, Gollapudi Group, Musunuru Mandal, Krishna District.
Ex.A6 : Copy of the Adangal, for Falsi 1414, issued in the name of the Plaintiff No.1, by the Village Revenue Officer, Gollapudi Group, Musunuru Mandal, Krishna District.
Ex.A7 : Permanent Receipt, dated 12.11.1995, for Service Connection No.406.
Ex.A8 : Permanent Receipt, dated 12.05.1995, for Service Connection No.406.
Ex.A9 : Receipt, dated 11.08.1997, for Service Connection No.406.
Ex.A10 : Receipt, dated 11.02.1999, for Service Connection No.406.
Ex.A11 : Two Receipts, dated 19.06.2003, for Service Connections No.638 and 406 respectively.
Ex.A12 : Served Copy of the Proceedings of the Joint Collector and District Magistrate, Krishna, Machilipatnam, dated 20.09.2017.
WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT
DW.1 : Chimata Venkateswara Rao.
DW.2 : Sayala Venkata Subba Rao.
DW.3 : Nalliboina Venkateswara Rao.
DW.4 : Guddeti Samsonu.
EXHIBITS MARKED ON BEHALF OF THE DEFENDANT
Ex.B1 : Form-D Patta issued in the name of Chimata Pitchaiah, for the land of Ac.0.54 cents in S.No.121/6.
Ex.B2 : Proceedings of the Tahsildar, Nuzvid, issued in the name of Chimata Pitchaiah for the land of Ac.0.54 cents in S.No.121/6.
Ex.B3 : Old Ryot Pass Book issued in the name of Chimata Raghunadham, Son of Pitchaiah.
Ex.B4 : Title Deed Book issued in the name of the Defendant.
Ex.B5 : True Copy of the Fair Adangal Extract, dated 06.11.2005, issued by the Tahsildar, Musunuru Mandal.
Ex.B6 : True Copy of the Revised Fair Adangal Extract, dated 06.11.2005, issued by the Village Revenue Officer, Gopavaram, Musunuru Mandal.
O.S.No.358 of 2007, Page 31 of 31 P.J.C.J. Court, Nuzvid.
Dt. 31-08-2018.
Ex.B7: Copy of the Assessment Notice, dated 31.01.2016, issued to Ch.Raghunath, for Regularization of Additional Load for Service Connection No.406.
Ex.B8: Two Electricity Demand Notices, in the name of Ch.Raghunadh, for Service Connection No.406.
Ex.B9: Seven Electricity Payment Receipts, for Service Connection No.406.
Ex.B10: Unregistered Partition List, dated 17.11.1994, executed between Chimata Raghunadh and the Defendant, in respect of their family Property, including the disputed Property.
Ex.B11 : Land Revenue Payment Receipt, dated 11.02.1977, issued in the name of Chimata Pitchaiah, who is the father of the Defendant, for Fasli 1386.
Ex.B12: Land Revenue Payment Receipt, dated 30.01.1976, issued in the name of Chimata Pitchaiah, who is the father of the Defendant, for Fasli 1385.
Ex.B13: Land Revenue Payment Receipt, dated 05.03.1975, issued in the name of Chimata Pitchaiah, who is the father of the Defendant, for Fasli 1385.
Ex.B14: Land Revenue Payment Receipt, dated 21.02.1982, issued in the name of Chimata Raghunadham, who is the brother of the Defendant, for Fasli 1391, and 1390.
Ex.B15: Land Revenue Payment Receipt, dated 30.01.1995, issued in the name of the Defendant, for Fasli 1404.
Ex.B16: Land Revenue Payment Receipt, dated 28.01.1993, issued in the name of the Defendant, for Faslis 1400, 1401 and 1402.
Ex.B17: Certified Copy of the Adangal For 1414 Fasli, issued by the Tahsildar, Musunuru Mandal.
Ex.B18: Served Copy of the Orders, dated 07.11.2017, passed in W.P.M.P.No.46274 of 2017 in W.P.No.37244 of 2017, filed by the Defendant against the Plaintiff No.1 and others.
First Additional Junior Civil Judge, Nuzvid. FAC Principal Junior Civil Judge, Nuzvid.