O.S.17/2016 1 Ist Addl. Junior Civil Judge,
15 th February, 2021 Eluru
IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE:: ELURU.
Present:Sri Ch.L.Srinivasa Rao, B.A.L., B.L.,
Ist Addl., Junior Civil Judge,
Eluru.
Monday, this the 15th day of February, 2021.
O.S.No.17 of 2016
Between:
Sri Pandi Ramakrsihna Srinivas, S/o. Veeranjaneyulu, Hindu, Male, Aged about 27 years, Cultivation, R/o. D.No.C/101, Rajupeta, Pedapadu Mandal, W.G.Dist., … Plaintif And:
1. Sri Merugumala Ravikumar, S/o. Late Srinivasarao, Hindu, Male, Aged 26 years, Supervisor, M&N Motors Pvt., Limited, (Mahindra Rise), Plot No.A5 and A6, Opp: Ambica Devi Temple, Industrial area, Satrampadu, Eluru-534007.
2. Putti Satyanarayana, S/o. Sreeramamurthy, Hindu, Male, Aged about 52 years, Rice Mill, Business, R/o. Ponangi Road, Eluru, W.G.Dist., … Defendants
This suit coming on 03.02.2021 for final hearing before me in the presence of Sri Kurapati Prithvi Raj, Advocate for the plaintif and of Sri S.V.R.Gandhi, Advocate for defendants and the matter having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1. This is a suit filed by the plaintif to grant permanent injunction restraining the defendants, their men and followers from ever interfering with the peaceful possession and enjoyment of the plaintif over the plaint schedule property and for costs of the suit.
2. The brief facts of the plaintiff set out in the plaint as follows:
The plaintif submitted that he is the absolute owner of the plaint schedule property and he has been in exclusive possession and enjoyment of the same. Originally, maternal grand father of the plaintif by name Merugumala Ramulu had purchased the plaint schedule vacant site under registered sale deed dated 12.03.1970. Subsequently, he had constructed a tiled house therein and had been in peaceful possession and enjoyment of the same. Later, out of love and afection he executed a registered gift settlement deed dated 06.07.2013 in favour of the plaintif under which he settled the plaint schedule property in his favour and he delivered the possession of the same to him. Since then the plaintif has been in peaceful, uninterrupted and continuous
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15 th February, 2021 Eluru possession and enjoyment of the same by exercising his rights over the same as an absolute owner. The name of the plaintif is also got mutated in local body institution and has been paying the taxes to the local bodies without committing any default. The 1st defendant is the paternal grand-son of the Merugumala Ramulu, he has no love and afection towards his paternal grand parents. The paternal grand parents of the 1st defendant are at logger heads with the 1st defendant with regarding their absolute properties. The 1st defendant initiated false litigation against his paternal grand parents and paternal aunt by filing a civil suit in O.S No.62/2013 on the file of the Hon’ble
Principal Senior Civil Judge’s Court, Eluru. The same is subjudice. While so, the paternal
grandmother of the 1st defendant filed a suit in O.S No. 378/2015 on the file Hon’ble Prl.
Senior Civil Judge’s Court, Eluru against the 1st defendant for the partition of her 1/3rd
share from out of the estate of the deceased son and that the said suit also sub-judice.
The 1st defendant has developed grudge and jealous against the plaintif as his paternal grand parents gifted out the plaint schedule property to him. He has been maintaining distance with the plaintif and his paternal grand parents. The 1st defendant along with his close relatives i.e., 2nd defendant armed with rowdy elements suddenly on 03.02.2016 tried to tress pass into the plaint schedule property in a forcible manner and attempted to dispossess plaintif from the plaint schedule property. The plaintif resisted the acts of the defendant with the timely intervention of village elders. While leaving the plaint schedule property, the defendants are openly proclaiming that either by hook and crook they will dispossess the plaintif from the plaint schedule property and nothing could stop them in doing illegal acts. The plaintif is in apprehension that the defendant at any time may forcibly enter into the plaint schedule property and grab the same by dispossessing the plaintif there from. The plaintif is a law abiding citizen, the defendants are financially rich and politically influential and no respect towards law and they have no semblance of right, title interest or possession over the plaint schedule property. Hence the plaintif is constrained to file a present suit against the defendants.
3. The 1st defendant filed the written statement, 2nd defendant filed a adoption memo by adopting the written statement of the 1st defendant and they denied the allegations of the plaintif and interalia contending that, the plaintif is resident of
Vasanthavada Village, the plaint schedule property situated in Rujupeta Village. The
O.S.17/2016 3 Ist Addl. Junior Civil Judge,
15 th February, 2021 Eluru plaintif is never in possession and enjoyment of the plaint schedule property at any time and he has no manner of right, title, interest and possession over the same. The 1st defendant is the paternal grand son of the Merugumala Ramulu and Merugumala Ramulu has no exclusive right, title, interest over the plaint schedule property and he cannot covey the absolute right, title in favour of the plaintif over the same. The plaintif and his parents are never looked after the needs and welfare of the Merugumala Ramulu and his wife. The Merugumala Ramulu settled the landed property in fvour of the 1st defendant during his minority. The mother of the plaintif by exercising undue influence and by playing fraud induced the Merugumala Ramulu to settle the land in her favour which was already settled in favour of the 1st defendant. The 1st defendant filed a suit against
Merugumala Ramulu, his wife and their daughter for declaration and possession of the landed property, which was settled in favour of the 1st defendant by Merugumala Ramulu as the same is pending on the file of Principal Senior Civil Judge’s Court, Eluru. In fact,
Merugumala Ramulu acquired the plaint schedule property in his name with the joint family income, nucleus and with the joint exertions of Ramulu and his son. Later, a house was constructed therein with the joint exertions of Merugumala Ramulu and his son. The schedule property has been treating and enjoying as joint family property to the knowledge of one and all, particularly to the knowledge of the plaintif and his mother.
The 1st defendant has got a right, title, interest and share in the plaint schedule property and he is also looking after the welfare of the Merugumala Ramulu, his wife. But the
Merugumala Ramulu and his wife became puppets in the hands of the mother of the plaintif and they are unable to give up their contest in the suit filed by the 1st defendant in view of the pressure, threats and influence exercised by her. The plaintif and his mother without any prick of conscience or compunction once again exercised undue influence against Merugumala Ramulu by playing fraud and by misrepresentation, they slyly brought into the existence the alleged settlement deed dated 06.04.2013 in favour of the plaintif for the plaint schedule property which is null and void, not valid and not binding on the 1st defendant. Even till today Merugumala Ramulu his wife are in actual possession, occupation and enjoyment of the plaint schedule property and are residing in the house therein and the 1st defendant used to visit the schedule property to see his paternal grandparents and to provide basic needs to them. The plaintif and his mother
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15 th February, 2021 Eluru withhold the execution of settlement deed dated 06.04.2013 all these days, the
Merugumala Ramulu has no exclusive title over the plaint schedule property and he has not executed the same out of his free will and volition and he has no notice and knowledge about nature of the said document and contents therein. The Plaintif and his mother having noticed the 1st defendant is visiting his grand parents regularly, looking after their basic needs, apprehending that Merugumala Ramulu may question the fraudulent gift settlement deed dated 06.04.2013 at the behest of the 1st defendant and filed the present suit with utterly false and unbearable allegations. The 1st defendant being one of the sharer of the plaint schedule property, deemed to be joint and constructive possession of the same. The plaintif has no manner of right, tile, interest and possession over the plaint schedule property and the document relied on him is a fabricated and concocted document as brought into existence by inducement and by misrepresentation and fraud and also by exercising undue influence. The present simple suit for injunction is not maintainable under law without seeking the relief of declaration.
Plaintif has no prima facie case, balance of convenience is not in his favor and he has not approach the Hon’ble court with clean hands and prayed to dismiss the suit with costs.
4. Basing on the above pleadings, my predecessor in office has been framed the following issues for trial:
(i) Whether the plaintiff is entitled for permanent injunction as prayed for?
(ii) To what relief?
5.On behalf of the plaintif, P.Ws 1 to 3 were examined and Exs.A1 to A5 were got marked. On behalf of the defendants, D.Ws 1 and 2 were examined and Exs.B1 to B3 were got marked.
6.Heard on both sides. Perused the pleadings, evidence and documents of the both parties.
7.I S S U E No.1:
It is the contention of the plaintif that he is the absolute owner of the plaint schedule property by virtue of the registered gift settlement deed dated 06.04.2013 executed by the Merugumala Ramulu in his favour and since the date of the execution of the Ex.A.1 registered gift settlement deed, he has been in peaceful possession and
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15 th February, 2021 Eluru enjoyment of the same without any interruption by any one and the defendants are interfering with his peaceful possession and enjoyment of the same. Whereas, it is the contention of the defendants that the plaint schedule property is the ancestral property of the Merugumala Ramulu and deceased father of the 1st defendant and D.W.1 Merugumala
Ramulu are in joint possession and enjoyment of the same. Since the defendants are denying the allegations of the plaintif, the initial burden lies on him to prove his case.
8.In the back drop above receipt of contentions of the both parties, now it is to be seen whether the plaintif is in prima facie lawful possession and enjoyment of the plaint schedule property as on the date of filing of the suit by virtue of Ex.A.1 registered gift settlement deed. Though it is simple suit for injunction, the question of title cannot be a prerequisite to decide the same and can be looked into incidentally. Here, the defendants have questioning the very legality of execution of Ex.A.1 registered gift settlement deed dated 06.04.2013. In order to prove the execution of Ex.A.1 gift settlement deed, apart from the evidence of P.W.1, he has examined the P.W.3 who is the 1st attestor of the Ex.A.1 gift settlement deed. P.W.3 who is one of the attesting witnesses of the Ex.A.1 gift settlement deed, deposed about the execution of Ex.A.1 by the
Merugumala Ramulu in favour of the P.W.1 and at the request of the Merugumala Ramulu, he acted as a one of the attestors of Ex.A.1.
9.It is to be noted in the evidence of P.W.3 that Merugumala Ramulu himself gave instructions to the document writer to prepare Ex.A.1 gift settlement deed, after prepared the same, the scribe of the document read over the contents of the Ex.A.1 gift settlement deed before him, having understood the contents of the said document,
Merugumala Ramulu put his thumb impression on the said document in the presence of
P.W.3 as well as in the presence of Karreti Naga Srinivasa Rao who is another attesting witness of the Ex.A.1 gift settlement deed. The evidence of P.W.3 clearly shows that
Merugumala Ramulu himself presented the said document before the S.R.O, Vatluru for the registration of the same and the P.W.3, Karreti Naga Srinivasa Rao acted as a identifying witness as well as attesting witnesses on Ex.A.1 gift settlement deed. So, the evidence of P.W.3 is corroborating with the evidence of P.W.1 with regard to the execution of the Ex.A.1 gift settlement deed in his favour. Further, the P.Ws.1 and 2 denied the suggestion of the defendants that the Merugumala Ramulu has no absolute right, title to
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15 th February, 2021 Eluru execute the Ex.A.1 registered gift settlement deed in respect of the plaint schedule property as it is the joint family property of the Merugumala Ramulu and the deceased father of the 1st defendant and they acquired the same with their joint family income, nucleus and with their joint exertions and the P.W.1 and his mother by exercising undue influence and playing fraud up on him got obtained the Ex.A.1 gift settlement deed in favour of the P.W.1. Except the suggestion and denial, nothing could be elicited by the defendants during the cross examination of the P.Ws.1 and 2 to disbelieve their testimony with regard to the execution of Ex.A.1 gift settlement deed in favour of P.W.1 and to go to the extent of obtaining the Ex.A.1 registered gift settlement deed by the
P.W.1 and his mother by playing fraud and by exercising undue influence against the
Merugumala Ramulu. So, the plaintif successfully established the execution of Ex.A.1 gift settlement deed in his favour by examining the one of the attesting witness of Ex.A.1 registered gift settlement deed.
10.When once the P.W.1 had discharged his initial burden, the burden shifts on the defendants to disprove the execution of Ex.A.1 gift settlement deed. Even though
D.W.1 categorically deposed in his evidence that the P.W.1 and his mother are obtained the Ex.A.1 gift settlement deed from the Merugumala Ramulu in favour of the P.W.1 by playing fraud and by exercising undue influence, he did not adduce either cogent or convenience evidence on their behalf to elicit the said fact and even the D.W.1 did not establish the same, during the cross examination of P.Ws.1 and 3 by shaking their evidence. Though it is the plea of the 1st defendant that the plaint schedule property is the joint family property of the Merugumala Ramulu and his deceased father, he did not adduce any positive evidence to establish the said fact. Even he has not examined the
Merugumala Ramulu who is the material witness of this case on his behalf as witness in this case to establish the said fact. Here, the Merugumala Ramulu is the right person to say whether the property in question is the joint family property or his self acquired property. Further, the D.W.1 has not given any valid explanation for non examination of
Merugumala Ramulu as a witness in this case to establish the said fact.
11.Further, it is admitted by the D.W.1 in his cross examination that he filed a suit in O.S No.62/2013 on the file of Prl. Senior Civil Judge’s Court, Eluru, in that case, he was examined as P.W.1 and he deposed in O.S No.62/2013 by stating that the entire
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15 th February, 2021 Eluru properties of Merugumala Ramulu is his self acquired properties. The relevant portion of the 1st and 2nd sentence in Page 8 of the deposition of the P.W.1 in O.S NO.62/2013 is marked as Ex.A.5. Further, the D.W.1 stated that he does not know whether the Ex.A.1 gift settlement deed was executed after filing of the suit in O.S No.62/2013 or not. Further, he deposed that, he has not verified the Ex.A.1 gift settlement deed so far. Admittedly,
D.W.1 has not filed any suit for partition against the Merugumala Ramulu by claiming that the entire properties of Merugumala Ramulu are joint family properties and he has got share in it along with him.
12.Till so far, the 1st defendant has not filed any suit before any appropriate authorities by seeking cancellation of the Ex.A.1 gift settlement deed against the P.W.1, even though it was executed in the year 2013, for the reasons best known to him. If really the plaint schedule property is ancestral property of Merugumala Ramulu and his deceased father, certainly the D.W.1 would have filed a suit for partition of the alleged joint family properties of Merugumala Ramulu and his father and an other suit against the
P.W.1 for cancellation of the Ex.A.1 gift settlement deed, but he did not do so. Even he has not given any notice to the P.W.1 and has not lodged any complaint with the police against the P.W.1 and his mother by alleging that they have obtained Ex.A.1 gift settlement deed in favour of the P.W.1 by playing fraud and by exercising undue influence upon the Merugumala Ramulu.
13. Admittedly, Merugumala Ramulu is not natural father of the deceased father of the D.W.1. Further, P.W.1 stated that he is the poster son of the Merugumala
Ramulu and he never adopted the father of the D.W.1. Further, here D.W.1 did not disclose when the Merugumala Ramulu adopted the father of the D.W.1. Even he has not disclosed the date, month, year of the said adoption. Here, the D.W.1 also failed to examined the Merugumala Ramulu to prove the said fact. Further, there is no piece of evidence on behalf of the D.W.1 to establish the same. It is the bounden duty of the D.W.1 to establish that the Merugumala Ramulu adopted the father of the D.W.1 by adducing cogent and convenience evidence. But he did not do so. When the D.W.1 failed to establish the same it can be presumed that the father of the D.W.1 is the poster son of the Merugumala Ramulu. As can be seen from the recitals of Ex.A.2 sale deed, wherein the recitals of Ex.A.2 clearly shows the Merugumala Ramulu himself purchased the plaint
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15 th February, 2021 Eluru schedule property with his own income and assets. Further, Ex.A.2 did not contain that the plaint schedule property was purchased with the joint family income, nucleus and joint exertions of the Merugumala Ramulu and the deceased father of the D.W.1.
14.As can be seen from the cross examination of D.W.2, wherein he categorically deposed that originally plaint schedule property is belongs to the
Merugumala Ramulu as it is his self acquired property. So, it is clean from the evidence of
D.W.1, D.W.2 that the plaint schedule property is the self acquired property of the
Merugumala Ramulu, but not the joint family property of the Merugumala Ramulu and deceased father of the D.W.1.
15.The learned defence counsel mainly argued that the 1st defendant is claiming his right and title over the plaint schedule property. As such, there is a cloud cast upon the title of the plaintif, so mere suit for Permanent Injunction is not maintainable without seeking the relief of declaration of his title. So, the present suit for injunction is not maintainable according to law and prayed to dismiss the suit on this ground alone.
16.I do not accept the arguments advance by the learned defence counsel, why because, it is settled law that when there is cloud cast upon the title of the plaint schedule property, the simple suit for injunction is not maintainable. In the present case, as stated supra, except D.W.1 is contending that the plaint schedule property is the joint family property, he has not placed any material evidence before this court in support of his case. Further, it is clear from the evidence of P.Ws.1 and 2 and through the admission of the D.Ws.1 and 2 that the plaint schedule property is the self acquired property of the
Merugumala Ramulu. Further, very allegations of the defendants that the plaint schedule property is the joint family property is proved to be false, absolutely, there is no cloud cast upon the title of the property in question. As such, P.W.1 has no need to ask the relief of the declaration of his right and title over the property in question and a mere suit for injunction is sufficient.
17. I relied upon a citation in between
Muddasani Venkata Narasaiah (D) Thr. Lrs. Vs. Muddasani Sarojana
Reported in 2016 LAWS Page 55(SC)
His lordship held at para 16 that the plaintiff had purchased
the suit land under the registered sale deed on 10.04.1957.
Defendant did not claim title with reference to any document, but
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15 th February, 2021 Eluru
claimed to have perfected title by adverse possession. A mere
claim by the defendant that he had perfected his title by adverse
possession, does not mean that a cloud is raised over plaintiff’s
title and that the plaintiff who is the owner, should file a suit for
declaration of title. Unless the defendant raises a serious cloud
over the title of the plaintiff, there is no need to file a suit for
declaration. The plaintiff had title and she only wanted
possession and therefore a suit for possession was maintainable.
18.Further, I relied upon an other citation in between
Anathula Sudhakar Vs. P Buchi Reddy
Reported in 2008(3) LAWS Page 175 (SC)
The Hon’ble Apex Court at para 12 that we may however clarify
that a prayer for declaration will be necessary only if the denial of
title by the defendant or challenge to plaintiff’s title raises a cloud on
the title of plaintiff to the property. A cloud is said to raise over a
person’s title, when some apparent defect in his title to a property, or
when some prima facie right of a third party over it, is made out or
shown. An action for declaration, is the remedy to remove the cloud
on the title to the property. On the other hand, where the plaintiff has
clear title supported by documents, if a trespasser without any claim
to title or an interloper without any apparent title, merely denies the
plaintiff’s title, it does not amount to raising a cloud over the title of
the plaintiff and it will not be necessary for the plaintiff to sue for
declaration and a suit for injunction may be sufficient.
19.As per the citations referred above, wherein, it is clearly shows that where the plaintif is in lawful possession, but his title to the property is in dispute or under a cloud or where the defendants assets title there to and there is also a threat of dispossession from the defendants, the plaintif will have to sue for declaration of the title and for the consequential relief of injunction. When the plaintif has clear title, supported by the documents, if the defendants without any claim to title or an inter loper without any apparent title, merely denies the plaintif’s title, does not amount to raising a cloud over the title, of the plaintif. So, the plaintif is no need to file a suit for declaration of his right and title over the plaint schedule property and a mere suit for injunction is sufficient.
Here in the present case in the hand, the P.W.1 has clear title supported by the documents (I.e., Exs.A.1 and A.2) along with oral evidence of P.Ws.1 to 3, and as stated supra there is no apparent title to the D.W.1 over the property in question, there is no
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15 th February, 2021 Eluru need for the P.W.1 to file a suit for declaration of his title over the property in question and the present suit for injunction is sufficient.
20.It is well settled law that the grant of injunction is an equitable relief. The person who approached the Court must prove the equities to get the relief of injunction.
Omissions or suppression of material facts would dis-entitle him to seek the equitable relief of permanent injunction. Here in this case, the P.W.1 mainly relied upon Ex.A.1 to
A.5 documents to prove his possession over the schedule property as on the date of filing of the suit. As can be seen from the recitals in Ex.A.1, where in it is clearly shows that, the donor of the Ex.A.1 by name Merugumala Ramulu has settled the possession of the plaint schedule property to the P.W.1 as on the date of execution of Ex.A.1 registered gift settlement deed and delivered the possession of the same to the P.W.1 on the even date.
So it is shows that since the date of execution of Ex.A.1 gift settlement deed, P.W.1 has been in peaceful possession and enjoyment of the plaint schedule property.
21.Further, I relied upon a citation
A.Naga Rajayya Vs. B.Aravind
Reported in AIR 2014 Karnataka Page 140
His lord ship held that where the sale deed containing recitals
that the possession has been delivered as on the date of sale, the
prima facie case of lawful possession made out by the plaintiff.
So, as per the citation referred above, wherein, it is clear that when the Ex.A.1 gift settlement deed containing the recitals that the possession has been delivered by the
Merugumala Ramulu to the P.W.1 as on the date of execution of Ex.A.1 registered gift settlement deed, it can be said that, the prima facie case of lawful possession successfully made out by the P.W.1 over the plaint schedule property.
22.Further, here the plaintif also examined P.W.2 who is the neighbour to the plaint schedule property. P.W.2 deposed that, P.W.1 has been in peaceful possession enjoyment of the plaint schedule property. Further, P.W.2 denied suggestion of the defendants that the plaintif is never in peaceful possession and enjoyment of the plaint schedule property and the Merugumala Ramulu and his wife are in the actual possession and enjoyment of the same. Except the suggestion and denial, nothing was elicited by the defendants during cross examination of P.W.2 to disbelieve his testimony and no ill
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15 th February, 2021 Eluru feelings were attributed to go to the extent of giving false evidence against the defendants by the P.W.2.
23.The learned counsel for defendants mainly argued that, the plaintif is not residing in the plaint schedule property and he is residing at Vasanthavada Village and adhar card, voter identity card and the address given in the Ex.A.1 clearly proves the same. He further argued that the P.W.1 admitted that Merugumala Ramulu and his wife are residing in the plaint schedule property. It shows that, the plaintif is not in peaceful possession and enjoyment of the plaint schedule property and prayed to dismiss the suit.
24.I do not accept the arguments advanced by the learned defence counsel, why because, prior to the execution of the Ex.A.1 registered gift settlement deed, P.W.1 was residing at Vasanthavada Village as he has got a residential house at there. As such, he gave the said address particulars at the time of execution of Ex.A.1. P.W.1 mainly deposed that since the date of execution of Ex.A.1, P.W.1 has been residing in the plaint schedule property along with the Merugumala Ramulu and his wife. Further, it is clear from the evidence of P.W.1 that Rujupeta and Vasanthavada are situated side by side.
Further, Exs.A.3, A.4 house and water taxes receipts clinchingly proves that P.W.1 has been paying the house tax and water tax to the plaint schedule property from the month of April, 2016. Here in this case, the Ex.A.1 registered gift settlement deed and Exs.A.3 and A.4 house and water tax receipts clearly proves the peaceful possession and enjoyment of the P.W.1 over the plaint schedule property as on the date of filing of the suit.
25. Admittedly, the defendant is not in possession and enjoyment of the plaint schedule property and he is residing at Eluru. The main contention of D.W.1 is that oftenly he used to visit the plaint schedule property to see his paternal grand parents and to provide basic need to them. So, it shows that, he is not in a possession and enjoyment of the plaint schedule property. Further, he has not examine either the Merugumala
Ramulu or his wife to elicit that they are in actual possession of the plaint schedule property along with D.W.1. Even the Exs.B.1 to B.3 (i.e., Study and conduct Certificate,
Ration card, family member certificate) are also not at all helpful to the D.W.1 to prove the possession of the D.W.1 over property in question as on the date of filing of the suit.
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15 th February, 2021 Eluru
26. As can be seen from the evidence of D.W.2, wherein, he deposed that he does not know the door number, boundaries and survey number of the plaint schedule property. Admittedly, the D.W.2 is looking after the business of the D.W.1 and he is receiving an amount of Rs.8,000/- per month from the D.W.1 towards his salary. So, it shows that, the D.W.2 is the employ of the D.W.1, so there is a very chance of giving false evidence by the D.W.2 on behalf of the D.W.1 to support the D.W.1 as he is working under him. Here, except the oral evidence of D.W.1 and D.W.2, there is no documentary evidence to prove the possession of D.W.1 over the plaint schedule property as on the date of filing of the suit. So, it is not safe to believe the version of the defendants without having any positive evidence with regard to possession of D.W.1 over the plaint schedule property. So, it can be safely held that the defendants miserably failed to establish possession of D.W1 over the plaint schedule property as on the date of filing of he suit.
27.Further, I relied upon a citation in between,
Ramavath Hasala Naik Vs. Sabahavath Gomli Bai
Reported in 2011(2) ALT Page 690.
His lordship at para 10 that so far as the Indian law is concerned,
the person in peaceful possession is entitled to retain his possession
and in order to protect such possession he may even use reasonable
force to keep out a trespasser. A rightly owner who has been
wrongfully dispossessed of land may retake possession if he can do
so specifically and without the use of unreasonable force. If the
trespasser is in settled possession of the property belonging to the
rightly owner, the rightful owner shall have to take recourse to law;
he cannot take the law in his own hands and evict the trespasser or
interfere with his possession. The law will come to the aid of a person
in peaceful and settled possession by injuncting even a rightful owner
from using force or taking the law in his own hands, and also by
restoring him in possession even from the rightful owner, if the latter
has dispossessed the prior possessor by use of force. In the absence
of proof of better title, possession or prior peaceful settled
possession is itself evidence of title. Law presumes the possession to
go with the title unless rebutted. The owner of any property may
prevent even by using reasonable force a trespasser from an
attempted trespass, when it is in the process of being committed or
is of a flimsy character, or recurring, intermittent, stray or casual in
nature, or has just been committed, while the rightful owner did not
have enough time to have recourse to law.
28.As per the citation referred above, wherein, it is clear that in the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. Here in this case,
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15 th February, 2021 Eluru the P.W.1 has got better title than the D.W.1. So, the law presumes the possession of the
P.W.1 to go with his title unless it is rebutted by the D.W.1. Since the defendants failed rebut the case of the plaintif, it can be presumed that the P.W.1 is in the prima facie lawful possession and enjoyment of the property in question as on the date of filing of the suit.
29.It could be evident from the evidence of P.W.1 that, both the defendants armed with rowdy elements suddenly on 03.02.2016 tried to trespass into the plaint schedule property in a forcible manner and attempted to dispossess the P.W.1 from the plaint schedule property and the P.W.1 timely resisted the acts of the defendants with the timely intervention of the village elders. In support of his evidence P.W.2 clearly stated that, he was also present at the time of trespassing of the defendants into the plaint schedule property and he also resisted the defendants. Further, here the defendants are seeking the right and title over the plaint schedule property against the P.W.1 and also claiming the possession over the same. So, it shows that, the defendants are trying to dispossess the P.W.1 from the plaint schedule property. If the defendants are permitted to dispossess the P.W.1, certainly he will sustain irreparable loss and hardship. So, it is necessary to prevent the defendants, their men and followers from ever interfering with the peaceful possession and enjoyment of the P.W.1 over the plaint schedule property by granting Permanent injunction. Accordingly, this issue is answered in favour of the plaintif and against the defendants.
30.I S S U E No.2:
In the result, this suit is decreed with costs in favour of the plaintiff and
against the defendants by granting permanent injunction restraining the
defendants, their men and followers from ever interfering with the peaceful
possession and enjoyment of the plaintiff over the plaint schedule property.
Dictated to the steno of this court, transcribed by her, corrected and pronounced by me in the open court
on this the 15 th day of February, 2021.
Sd/-Ch.L.Srinivasa Rao
Ist Addl. JUNIOR CIVIL JUDGE,
ELURU.
O.S.17/2016 14 Ist Addl. Junior Civil Judge,
15 th February, 2021 Eluru
APPENDIX OF EVIDENCE
No. of WITNESSES EXAMINED FOR
PLAINTIFF: P.W.1: Pandi Ramakrsihna Srinivas P.W.2: Tonduru Lee Ramesh P.W.3: Busi Venkata Rao
DEFENDANTS:
D.W.1: Merugumala Ravi Kumar D.W.2: Talapanti Rajesh
No. of Exhibits marked for
Plaintiff:
Ex.A.106-04-2013Original Registered gift settlement deed vide document No.1478/13 of Vatluru SRO. Ex.A.212-03-1970Registration extract of registered sale deed vide Doct. No.832/70 of SRO, Eluru Ex.A.3--Original house tax payment receipt dated 29.03.2015. Ex.A.4--Original Bunch of Panchayath House tax payment receipt
dated 05.02.2017 and Panchayat water tax payment receipt
from 01.04.2016 to 31.03.2017 Ex.A.5--1st and 2nd sentences of in Page No.8 of the Deposition of P.W.1 in O.S No.62/2013 on the file of Hon’ble Prl. Senior Civil
Judge’s Court, Eluru.
Defendants:
Ex.B.102-01-2015Original study and conduct certificate of the 1st defendant issued by Head Master, Mandal Praja Parishad School, Rajupeta, Pedapadu Mandal. Ex.B.2–Original Civil supply card/ration card issued in favour of Sri Merugumala Ramulu. Ex.B.311.10.2014 Original family member certificate issued by the Tahasildar, Pedavegi Mandal.
Id/-Ch.L.S.R
Ist A.J.C.J.,
Eluru.