OS.19/2009 Paramalla Satya Devi Vs. Nune Muralidhar Rao and 14 Otrs. Dt: 06.02.2023. 1 of 70.
// Fair Copy //
IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE,
AT NIZAMABAD
Present: Sri Ch. Panchakshari, II Addl. District Judge, Nizamabad.
Dated this the 6 th day of February, 2023
OS.No.19 of 2009
Between:
Paramalla Satya Devi W/o P.Pentaiah, aged 56 years, Caste: Hindu, Occ: House Wife, R/o. H.No.5-6-28, Dwaraka Nagar, Nizamabad.
.. Plaintiff
AND
1)Nune Muralidhar Rao S/o Nune Raghavender Rao, aged 21 years, Caste: Hindu, Occ: Retired Divisional Panchayat Officer, R/o. H.No.79, MIG, Phase-I, APHB Colony, Vinayak Nagar, Hyderabad Road, Nizamabad (DIED).
2)Nune Sudershan Rao S/o Late Nune Raghavender Rao, aged 64 years, Caste: Hindu, Occ: Retired Teacher, R/o. Chandrashekar Nagar Colony, Near Hanuman Temple, Kanteshwar, Nizamabad.
3)Nune Kanthamani W/o Late Nune Brahmananda Rao, aged 72 years, Caste: Hindu, Occ: House Wife,
4)Nune Subash S/o Late Nune Brahmananda Rao, aged 53 years, Caste: Hindu, Occ: Government Servant,
5)Nune Venkata Ramana S/o Late Brahmananda Rao, aged 50 years, Caste: Hindu, Occ: Employee in AP Transco,
6)Nune Venugopal Rao S/o Late Nune Brahmananda Rao, aged 45 years, Caste: Hindu, Occ: Government Servant,
7)Nune Sridhar Rao S/o Late Nune Brahmananda Rao, aged 40 years, Caste: Hindu, Occ: Government Servant,
8)Nune Anuradha D/o Late Nune Brahmananda Rao, aged 43 years, Caste: Hindu, Occ: House Wife,
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Defendants 3 to 8 are residing at Seetharam Nagar Colony, Beside Gujarathi Bhavan, Nizamabad.
9)Smt.Nune Jayaprada W/o Late Nune Muralidhar Rao, 68 years, R/o. MIG.I-79, New Housing Board Colony, Vinayaknagar, Nizamabad.
10) Nune Srinivas S/o Late Nune Muralidhar Rao, 48 years, Occ: Private Employee, R/o. MIG-I-79, New Housing Board Colony, Vinayaknagar, Nizamabad.
11) Smt.M.Geetha W/o Markanti Manohar, 45 years, Occ: Household, R/o. H.No.6-14-23, Opp: Chatrapati Hanuman Mandir Lane, Namdevwada, Nizamabad.
12) Nune Mahesh Kumar S/o Late Nune Muralidhar Rao, 43 years, Occ: Private Employee, R/o. H.No.7-39, FCI Colony, Aryanagar, Nizamabad.
13) Smt.G.Latha W/o Gannaram Prabhakar, 41 years, Occ: Household, R/o. H.No.7-62, Subhashnagar, Navipet.
14) Nune Ram Babu S/o Nune Muralidhar, 40 years, Occ: Private Employee, R/o. MIG-I-79, New Housing Board Colony, Vinayak Nagar, Nizamabad.
15) Smt.K.Sarala W/o Karkhelikar Suresh, 37 years, Occ: Household, R/o. H.No.1110, Shanthinagar, Dharmabad, Nanded District (Maharashtra). (Amended and added the D9 to D15 as LRs of D1 (died) as per the Orders of the Honourable Court in IA.No.536 of 2014, dt: 06.04.2014)?.
.. Defendants
This suit is coming before me on 05.01.2023 for final hearing before me in the presence of M/s. Gorrepati Madhava Rao, Ms.Meena Sahani, P.Sreedhar and Ms.Suphala Kadiyal, learned Advocates for the plaintiff and of Sri A.Kumardas, learned Advocate for the defendant Nos.1 to 15 and having heard both sides and stood over till this day for consideration, this Court delivered the following:
:: J U D G M E N T ::
This is a suit filed by the plaintiff against the defendant Nos.1 to 8for declaration of title declaring that the plaintiff is the owner in possession of the suit schedule property and also pass a decree restraining the defendants, their men, assignees permanently from interfering with the
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peaceful possession and enjoyment of the plaintiff over the suit schedule property by way of granting perpetual injunction in the interest of justice.
2.The averments of the plaint as contended by the plaintiff in brief are follows as hereunder:
a)One Nune Raghavender Rao was the pattedar and owner of the agricultural land to an extent of Ac.0-38 guntas comprised in
Sy.No.2841 of Nizamabad shivar. On the death of Nune Raghavender Rao, his widow Smt.Chandra Bhagirthi and sons Brahmananda Rao, Muralidhar
Rao, Sudershan Rao succeeded to the estate of the deceased Nune
Raghavender Rao and they jointly inherited the said land. Smt.Chandra
Bhagirthi and Brahmananda Rao are no more. The defendant Nos.1 and 2 are the sons of Nune Raghavender Rao and the 3rd defendant is the widow of Brahmananda Rao. The defendant Nos.4 to 7 are the sons and the 8th defendant is the daughter of Brahmananda Rao and the 3rd defendant.
b)The sons and widow of Nune Raghavender Rao entered into a contract with the plaintiff in the 1st week of November, 1987, agreeing to sell the land to an extent of Ac.0-38 guntas, situated in Sy.No.2841 of
Nizamabad shivar for a sum of Rs.6,00,000/- and the plaintiff also agreed
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to buy the same at the said price. On the date of agreement, the plaintiff paid an amount of Rs.2,00,000/- to the widow and sons of Nune
Raghavender Rao. The purpose of buying of the said land was to install a petrol and diesel filling station and the licence was taken from the Indian
Oil Corporation on the name of Mr.Chandraiah, the younger brother of the husband of the plaintiff. The husband of the plaintiff and Mr.Chandraiah did the business in partnership under the name and style of “Navodaya
Service Station”.
c)It is further contended that the land i.e., the subject matter of the contract was very low lying from the road level and always found with the flood water of the rivulet located by the side of the said land. The land is abutting to Nizamabad-Bodhan road on the northern side of the
Nizamabad-Bodhan road. Since the purpose of business was to establish filling station, the plaintiff got some of the land elevated by 2 or 3 feet above the road level by filling it with red gravel. The extent of land, which is part of the land covered by the agreement, so elevated is approximately 1976 Sq. yards i.e., 128 feet from south to north on western side and 139 feet on southern side from west to east. Some other piece of land also
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elevated. That other piece of land elevated is a bund of a rivulet. This piece of land is not the subject matter of the present suit.
d)It is further pleaded that the widow and sons of Nune
Raghavender Rao were left with the land, the width of which is 45 feet on the southern side from east to west beside the elevated portion this is on the south-east corner. Because of filling of the low level land, the land value both the utility value and exchange value shot-up at once, this caused an eyesore to the widow and the sons of Nune Raghavender Rao and they demanded excess sum of Rs.50,000/- over and above the agreed price of Rs.6,00,000/-.
e)The elders intervened and settled the price at Rs.6,30,000/-.
Mr. Pentaiah, the husband of the plaintiff, on the promise made by the widow and sons of Nune Raghavender Rao returned the agreement entered in the 1st week of November, 1987 to them that they would incorporate the new price in the agreement. Instead of incorporating the new price in the earlier agreement, gave a fresh agreement, dt: 04.01.1988 with their signatures.
f)It is further contended that as the husband of the plaintiff and
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his brother wanted the title deed for submitting the same to the Indian Oil
Corporation and to the Bank, the plaintiff requested her vendors to execute the sale deed. The sons and widow of Nune Raghavender Rao executed the sale deed, dt: 07.01.1988 in favour of the plaintiff conveying a part of the land in Sy.No.2841 to an extent of 1111.11 Sq. Yards under a registered sale deed, dt: 16.01.1988 vide Doc.No.156/1988 with measurement of 100 feet x 100 feet.
g)It is further pleaded by the plaintiff that the vendors of the plaintiff asked the plaintiff to vacate from the rest of the land i.e., 28 feet x 100 feet on northern side from west to east and 39 feet x 128 feet on eastern side from south to north. The area of the land on the eastern side is 554.66 Sq. Yards and northern side land is 311.11 Sq. Yards. The total extent of both the lands is 865.77 Sq. Yards. But the plaintiff refused to vacate the land that was elevated, as it was absolutely required for the business of the plaintiff and without which the business could not be conducted.
h)It is further pleaded that the total extent of land elevated belongs to the vendors of the plaintiff was 1976 Sq. Yards and the plaintiff
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also got the land adjacent to the stream too elevated, which is not part of the land in Sy.No.2841. The plan annexed to the plaint shows the extent of the land covered by the registered sale deed No.156/1988 with green boarder. The land in possession of the plaintiff since November, 1987 in addition to the green boarder land is shown with red boarder in reverse “L” shape.
i)It is further contended by the plaintiff that the widow and sons of Nune Raghavender Rao, their residence is very nearer to the land in the year 1987 and they have seen the plaintiff filling the low level land with red gravel and elevated portion is more than the land sold to the plaintiff under registered sale deed. But none of them objected for such filling and for putting the land to use and enjoying it an exclusively by the plaintiff openly to the knowledge of the sons and widow of Nune
Raghavender Rao.
j)Further contended that the plaintiff took possession of the entire land to an extent of Ac.0-38 guntas, the vendors of the plaintiff declined to execute a sale deed for the entire land on the ground that there was a delay in payment of balance sale consideration by the plaintiff.
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Then the plaintiff filed a suit for specific performance of contract vide
OS.No.72/1992 and the same was dismissed on the ground that it was
time barred by the Senior Civil Judge, at Nizamabad. The plaintiff took the matter in appeal to the Hon’ble High Court of A.P. vide Appeal Suit
No.2964/1999 and the decree was modified to the extent that the excess money in the custody of the widow and sons of Nune Raghavender Rao was ordered to be returned to the plaintiff.
k)It is further pleaded by the plaintiff that Brahmananda Rao and
Muralidhar Rao i.e., the sons of Nune Raghavender Rao filed a suit for injunction for the remaining land claiming that they were in possession of the land though they were not in possession of the entire land and the plaintiff came into possession of the entire land in the month of
November, 1987 and the plaintiff used 1976 Sq. yards and she has been in continuous possession of this piece of land ever-since. The sons and widow of Nune Raghavender Rao were in possession of the remaining land and their injunction was to that extent only. Though the plaintiff is using the elevated land, the sons and widow of Nune Raghavender Rao never executed the decree of the suit filed for permanent injunction, as such,
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they were satisfied that the remaining land to the width of which is 25 feet on the southern side i.e., on the south-east corner. Since the possession of the plaintiff is open exclusive and to the knowledge of the sons and widow of Nune Raghavender Rao since 1987 for more than 12 years, as such, the plaintiff perfected her title by adverse possession.
l)It is further contended that during the trial of earlier suit, a commission was issued for local inspection, the Commissioner filed his report showing the extent of the land in possession of the plaintiff.
m)On 06.06.2009, some of the defendants tried to encroach upon the land, which is in possession of the plaintiff and tried to disturb the possession of the plaintiff, but the plaintiff resisted their attempts and they went away. Hence, the plaintiff filed this suit against the defendants to declare that the plaintiff is the owner of the plaint schedule property to an extent of 865.77 Sq. Yards, situated in Sy.No.2841 of Nizamabad shivar as shown in the map annexed to the plaint, declaring that the plaintiff perfected her title by adverse possession and also grant an injunction restraining the defendants or anyone claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff
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over the suit schedule property. Hence, this suit.
3.The defendant Nos.1 to 8 having received the summons, entered into appearance and filed their written statement, vehemently denying the claim of the plaintiff. The defendants denied the payment of Rs.2,00,000/- on the date of the agreement of sale and also pleaded that an amount of
Rs.11,000/- was only paid on the date of agreement of sale. The defendants also denied that there was any partnership between the husband of the plaintiff and his brother Chandraiah. Further denied that the land, which was subject matter of the agreement was very low lying from the road level and flood water used to stagnate in the said land and also denied that the plaintiff got the land leveled by filling it with red gravel.
a)The defendants contended that these defendants leveled the land at their own costs. Further denied that the plaintiff leveled the land and elevated the land to an extent of 1976 Sq. yards i.e., 128 feet from south to north on western side and 130 feet on southern side from west to east. Further denied that the plaintiff leveled any land much-less to an extent of 1976 Sq. Yards along with some other land. All these pleas are
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hesitated and canvased in the earlier suits, litigantions and findings were given. As such, the repetation of the said fact in this suit is uncalled for and untenable. The bund of the rivulet abuts the land purchased by the plaintiff towards west and then passes through the land of the defendants.
The defendants denied that these defendants are left with the land the width of which is 45 feet on the southern side from east to west. They elevated the portion on the south-east corner.
b)It is further submitted that this defendants have been in possession of entire land except the land to an extent of 1111.11 Sq.
Yards since beginning. Even today, these defendants are in possession of portion of land ad-measuring 28 feet x 139 feet running from east to west red marked portion in the suit sketch and also an area ad-measuring 39 feet x 128 feet on the eastern side of the plaintiff’s land more particularly described in red colour. This piece of land was never delivered to the plaintiff at any time nor she was in possession of the same.
c)Further contended and denied the claim of the plaintiff that plaintiff filled up the suit land as stated above, but these defendants only leveled the land at their costs. Since the plaintiff did not perform her part
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of contract there was some controversy about the price, the plaintiff agreed to pay a sum of Rs.30,000/- more than the price fixed. The second agreement was entered into on 04.01.1988 incorporating the terms and conditions agreed upon and the original agreement was lying with the plaintiff as she retained the same.
d)It is denied that these defendants have taken back the agreement entered in the month of November, 1987 to incorporate the new conditions in the said agreement. The said agreement is with the plaintiff only. Since the new agreement has came into force, these defendants never insisted to return the earlier agreement.
e)As required by the plaintiff, her husband and his brother, a sale deed, dt: 07.01.1988 was executed in favour of the plaintiff for the land to an extent of 1111.11 Sq. Yards and delivered the possession of the said land on the date of its execution out of Sy.No.2841. Thus, the plaintiff for the first and last time, came into possession of the land conveyed under the registered sale deed only out of Sy.No.2841 and nothing more. The plaintiff and her husband are capable on cooking and creating litigant for the first time in this suit the plaintiff has come out with
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a plea that the vendors of the plaintiff asked the plaintiff to vacate the rest of the land i.e., 28 feet x 100 feet on northern side from west to east and 39 feet x 128 feet on the eastern side from north to south. The total area being on 554.56 Sq. Yards on eastern side and on the northern side an area of 311.11 Sq. Yards and total 865.77 sq. Yards and the plaintiff refused to deliver the same to the defendants is totally false and created for the purpose of this suit.
f)It is further contended that the defendants did not deliver any part of the land to the plaintiff earlier to the sale deed vide Doc.No.1956 of 1988 and only on the date of execution of the sale deed the area to an extent of 1111.11 Sq. Yards was delivered to the plaintiff and nothing more.
g)The contention of the plaintiff was in possession of Ac.0-29 guntas of land including the suit land has been rejected by the Courts. The main contention of the plaintiff that she was delivered the possession of the entire area of Ac.0-38 guntas in-pursuance of agreement of sale entered in the month of November, 1987 has been rejected, hence,now the plaintiff can not press the same plea into service to claim that plaintiff
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is in possession of the suit land. The plaintiff has utterly failed to show as to when and on what date she delivered back the possession of remaining land out of Ac.0-29 guntas and refused to deliver the suit area measuring 865.77 Sq. Yards. Thus, itself goes to show that the plaintiff for the first time have taken a plea that the plaintiff refused to deliver the possession of the suit land when the defendants demanded for redeliver of the said land to them. The question of re-delivery of the suit land or any other land does not arise since no other land except the land covered under the registered sale deed was delivered to the plaintiff at any time.
h)The defendants contended further that they are not aware whether the plaintiff filled up any portion of the rivulet adjoining to her land. It is true the plan annexed to the sale deed clearly shows that the land to an extent of 1111.11 Sq. Yards only was sold to the plaintiff and for the first time, the possession of the said extent was delivered to the plaintiff under the sale deed. No other piece of land either before or after sale deed was delivered to the plaintiff nor she has been in possession of any land except the land sold under the registered sale deed.
i)It is further pleaded that the area covered by green boarder is the
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only land sold to the plaintiff, the possession was also delivered and the area shown in the red colour is not part of the sale deed and possession of the same was not delivered to the plaintiff at any time.
These defendants being the owners are in possession of the red marked portion of the land and with which the plaintiff has nothing to do.
Hence, the plan filed by the plaintiffs is not correct.
j)The defendant Nos.1 to 8 further denied that these defendants have seen the plaintiff filling the low level land with red gravel and filling and leveling was only done by these defendants. Therefore, the allegation that leveled portion is more than the sold portion and these defendants did not object for such filling is absolutely false and the same is denied by the defendants. The plaintiff was never been in possession of the suit land or any part of it and it is the defendants are in possession of the suit schedule property to the exclusion of the plaintiff along with the other land in all ad-measuring Ac.0-29 guntas. Therefore, the plea that the plaintiff has been in open, continuous and exclusive possession of the red marked portion is contrary to the findings of the Courts and the same is denied by these defendants and such plea cannot be permitted to be
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raised and no suit can be sustained on the said plea.
k)It is further contended by the defendants that the plaintiff took possession of the entire land to an extent of Ac.0-38 guntas is totally false and defendants denied the same. The plaintiff has filed a false suit vide OS.No.72/1992 for the relief of specific performance of the contract on the file of Subordinate Judge, at Nizamabad and the same was dismissed and a clear finding was given in the said suit that the plaintiff was not in possession of Ac.0-29 guntas of land out of Sy.No.2841 and it was held that the possession if any is permissive. The plaintiff has carried the matter in appeal to the Hon’ble High Court vide AS.No.2964/1999, the
Hon’ble High Court modified the decree with a direction to refund the
excess amount. Accordingly, the defendants deposited the amount. It is pleaded that the Brahmananda Rao and Muralidhar Rao filed a suit for perpetual injunction restraining the plaintiff from interfering into their possession of the land to an extent of Ac.0-29 guntas out of Sy.No.2841.
In the said suit, an Interlocutory Application for interim exparte injunction was filed and the same was allowed and the interim injunction granted was made absolute. Against that order, an Appeal and Revision to the District
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Court and the Hon’ble High Court was carried, but they were dismissed.
l)It is submitted further that the Muralidhar Rao and
Brahmananda Rao after issuance of a notice, dt: 29.12.1988 filed a suit vide OS.No.212/1989 in the District Munsif Court, Nizamabad for perpetual injunction. Subsequently, the plaintiff filed a suit in
OS.No.72/1992 for specific performance of contract on the file of
Subordinate Judge, Nizamabad. OS.No.212/1989 was got transferred to the Subordinate Court, Nizamabad, both the suits were clubbed together, tried and disposed off with a common Judgment. OS.No.212/1989 was re-numbered as OS.No.56/1994, which was decreed by the Subordinate
Judge, Nizamabad in favour of Brahmananda Rao and Muralidhar Rao and
against the plaintiff herein, who was defendant in the said suit and
OS.No.72/1992 filed by the plaintiff for the relief of specific performance
of contract was dismissed on 30.07.1999.
m)It is further pleaded that on issue No.7 framed in
OS.No.72/1992, the Subordinate Judge, at Nizamabad answered the issue
No.7 that “from the discussions above, I am of the considered opinion that the plaintiff ceased to be in possession of the suit land from the date of
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suit agreement Ex.A2 and at-least 07.01.1988 the date of the sale deed in respect of the extent of 29 guntas of the land”. Further held on issue No.7 framed in OS.No.72/1992 that “the plaintiff was not in possession of the suit land on the basis of the recitals in Ex.B2, when the relief of specific performance is denied, the possession, if any, (of the plaintiff) was of permissive possession ceased to be in-force and the possession must be deemed to be with the defendants, who are the lawful owners of the property, then they are entitled to the relief of perpetual injunction and finally held that the suit OS.No.72/1992 is dismissed for the relief of specific performance and the suit OS.No.56/1994 is decreed restraining the defendants therein (i.e. the plaintiffs herein) and Chandraiah by way of perpetual injunction from interfering with the possession of the plaintiffs in
OS.No.56/1994”. Against these two Judgments, the plaintiff filed an
Appeal Suit No.2964/1999 and cross objections and Tr.AS.No.278/2001.
The Hon’ble High Court has given elaborate findings in the said appeal suit to the effect that “there is no dispute that on 14.09.1988 itself an injunction was granted in favour of the defendants and against the plaintiff for the suit schedule land it was made absolute on 27.09.1991 and the appeal filed before the learned District Judge and consequent revision was
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dismissed”. The plaintiff filed the present suit only after 27.10.1991.
Further held at paragraph No.17 of the said Judgment that ‘in
OS.No.212/1989 filed on the file of the learned District Munsif,
Nizamabad, which on transfer was re-numbered as OS.No.56/1994 on the file of the learned Senior Civil Judge, Nizamabad, the injunction order was made absolute and confirmed by this Court by 27.10.1991, even before filing of the suit OS.No.72/1992, I feel that there is no question of the plaintiff claiming that she was in possession of the suit property on the date of filing of OS.No.72/1992 in June, 1992”.
n)Further, the defendants have extracted the observations of the Hon’ble High Court at paragraph No.18 of the Judgment that “what was delivered under Ex.A3 was only 9 guntas of land, that again means at the time of execution of Ex.A2 or even by then no portion of the land was given into possession of the plaintiff and only at the time of execution of
Ex.A3, an extent of 1111.11 Sq. Yards of land was delivered to the plaintiff”. In these circumstances, as there is no reference in Ex.A2 about the delivery of the possession, in Ex.A3 the reference was only about the delivery of possession of 1111.11 Sq. Yards and it is difficult to believe
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that the plaintiff was put in possession of the entire property.
o)It is further contended by the defendants that these defendants in compliance of the said decree, deposited an amount of
Rs.10,15,350/- on 03.08.2007 before the Senior Civil Judge, Nizamabad.
If at all, the plaintiff was in possession of the suit land, she could have made a revision either to the Hon’ble High Court or to the Hon’ble
Supreme Court of India with regard to her so called possession and requested to appropriate the value of the said land towards the amount ordered to be refunded. The very deposit of the amount by the defendants clearly shows that there is no further litigation either on the title or possession about the remaining Ac.0-29 guntas including the suit land. The defendants have deposited the amounts otherwise, they could have hesitated the matter in case if the suit land was or is in possession of the plaintiff. The plaintiff having not satisfied with the concurrent findings of the Trial Court and the 1st Appellate Court, carried the matter to the
Hon’ble Supreme Court of India vide Spl. Leave Petition (Civil No.15968
and 15969 of 2007). The Hon’ble Supreme Court of India dismissed the
Special Leave Petition on 26.09.2008 holding that “we do not find any
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ground to interfere with the impugned order”.
p)It is further pleaded by the defendants that the findings on the issue of possession of the land to an extent of Ac.0-29 guntas in
Sy.No.2841 has become final and the same cannot be re-hesitated in the present suit. At no point of time the plaintiff was or is in possession of the suit land. But these defendants are in possession of the suit land. The claim of the plaintiff that the plaintiff came into possession of the entire land in November, 1987 and the plaintiff leveled the land and used to an extent of 1976 Sq. Yards and its open, continuous possession is absolutely false and the same is denied by these defendants.
q)Further pleaded that these defendants are in possession and enjoyment of the entire Ac.0-29 guntas of land including the suit land, with which the plaintiff had no right, title or interest or whatsoever nature and in the light of the findings given by the Courts, the plaintiff can not set up any rights over the suit schedule property. The injunction granted to the defendants in the suit OS.No.56/1994 was for the entire Ac.0-29 guntas and the decree in the injunction suit clearly shows that bearing 100 feet x 100 feet area the land of the plaintiff the injunction was granted for the
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rest of the area, as such, there was no violation except the present suit, no action was taken by the defendants. Therefore, the plea of the open, continuous and exclusive possession of the knowledge of the defendants since 1987 for more than 12 years, does not arise and the same is denied by these defendants. As observed by the Trial Courts, the plaintiff was not in possession of any land except the land purchased by the plaintiff, as such, the present suit for declaration on the basis of an adverse possession is ill-conceived.
r)it is further contended that for the first time in this suit, the plaintiff is ascertaining that the plaintiff has got prospective right which the plaintiff never set up at any time on the contrary that she was not in possession and always been harping that her possession is permissive. At any length of possession if true does not amount to adverse, unless it is specifically alleged and made known to all concerned. In the absence of any intention on the part of the possessor, the possession for any length of time even if it is true does not perfect and culminate into any right. As such, the present suit based on adverse possession is uncalled for and untenable and the same is not maintainable.
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s)The defendants further denied the contents of the paragraph
No.5 of the plaint. The case of the plaintiff being in possession is false even if it is true, she cannot maintain a suit for injunction against the true owner and her possession is permissive, the suit for prospective title does not arise. If the possession of the plaintiff is taken to be in-pursuance of
Section 53-A of Transfer of Property Act, she will only be entitled to defend herself and used the same as shield and not as a sword. As such,the suit for declaration and injunction is not maintainable.
t)Further, the defendant Nos.1 to 8 contended that the suit is not maintainable, as there is no cause of action, as such, the suit is liable to be rejected. Further the plaintiff is not entitled for any relief of declaration of her title by adverse possession. Further, the valuation of the suit and payment of the Court Fee is not correct. The plaintiff is not in possession of the suit land, as such, the Court Fee is not sufficient and the payment of
Court Fee on half of the market value is not proper. The boundaries shown by the plaintiff to the suit schedule property are false. The eastern boundary to the suit schedule property is the land of these defendants, so also, the northern boundary abuts the land of these defendants. With the
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above pleadings, the defendant Nos.1 to 8 prayed the Court to dismiss the suit with exemplary costs.
4.Basing on the above pleadings and after going through the documents, this Court settled the following issues for trial:
1)Whether the plaintiff got the piece of land to an extent of 1976 Sq. Yards elevated from the road level in Sy.No.2841?.
2)Whether the plaintiff is using the entire elevated portion of the land for running the fuel filling station?
3)Whether the plaintiff in November, 1987 came into possession of 865.77 Sq. Yards of land to the knowledge of the owners in addition to the land to an extent of 1111.11 Sq. Yards purchased by her?
4)Whether the plaintiff refused to vacate the above referred 865.77 Sq. Yards of land?
5)Whether the plaintiff perfected her title by adverse possession over the piece of land to an extent of 865.77 Sq. Yards of land?
6)Whether there is any cause of action to file this suit?
7)Whether the suit is hit by the principles of resjudicata in the light of Judgment in OS.No.72/1992 on the file of the Subordinate Judge, Nizamabad and in OS.No.56/1994 on the file of the Subordinate Judge, Nizamabad (i.e.,
OS.No.212/1989 on the file of the District Munsif,
Nizamabad) passed by the Subordinate Judge, Nizamabad and as confirmed by the Hon’ble High Court and the Hon’ble Supreme Court of India?
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8)Whether the suit for declaration and injunction is maintainable?
9)Whether the suit is not properly valued and the Court Fee paid is not sufficient?
10) To what relief ?.
5.The plaintiff, who laid the suit for declaration of title and injunction, got examined the husband of the plaintiff as PW1 and through his evidence
Ex.A1 to Ex.A15 were marked. The plaintiff to substantiate her right over the suit schedule property, got examined four witnesses as PW2 to PW5 and closed the evidence for the plaintiff.
6.The defendant Nos.1 to 8, who resisted the suit filed by the plaintiff, got examined the 4th defendant as DW1 and two persons as DW2 and DW3.
Through the evidence of DW1, Ex.B1 to Ex.B20 were marked. With that, the defendants closed their evidence.
7.Heard the the learned counsel for the plaintiff and the defendants and perused the written arguments filed by the the learned counsel for the plaintiff. The plaintiff and defendants apart from the oral evidence, they have relied on certain documents in support of their respective contentions. Ex.A1
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to Ex.A15 were marked in support of the claim made by the plaintiff.
8.Ex.A1 is the certified copy of sale deed No.156 of 1988, dt:
12.01.1988, under which the plaintiff purchased the land to an extent of 1111.11 Sq. Yards from the sons and wife of the Nune Raghavender Rao and the plaintiff was put in possession over the land purchased under Ex.A1. It is not mentioned in the Ex.A1 that the plaintiff was put in possession of the land to an extent of 1976 Sq. Yards or the land to an extent of Ac.0-29 guntas out of Sy.No.2841.
a)Ex.A2 is the certified copy of the plaint in OS.No.72/1992, dt:
13.03.2009. This plaintiff field a suit for specific performance of an agreement of sale, said to have executed by the wife and sons of Nune
Raghavender Rao, praying the Court to decree the suit for specific performance and to direct the defendants therein to execute the registered sale deed for the land to an extent of Ac.0-38 guntas, but the suit vide
OS.No.72/1992 was dismissed by the Court holding that the plaintiff seized
to be in possession of the suit land from the date of the suit agreement of
Ex.A2 and at-least from 07.01.1988 the date of the sale deed in respect of
Ac.0-9 guntas of land.
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b)Ex.A3 is the certified copy of the written statement filed by the defendants in OS.No.72/1992. In which, it was categorically stated by the defendants that the plaintiff was not put in possession of the land to an extent of 1976 Sq. Yards, but was only put in possession over the land, which was conveyed under the Ex.A1 sale deed No.156/1988.
c)Ex.A4 is the report of the Advocate Commissioner along with a map, dt: 01.07.1992. Ex.A5 is the set of six photographs along with the receipt. Ex.A6 is the certified copy of undertaking given by the Advocate for the defendants in OS.No.72/1992. Ex.A7 is the certified copy of the charge- sheet in Cr.No.350/1989 of Police Station Town-I, Nizamabad, dt:
24.10.1989. Ex.A8 is the map of the suit schedule property, Ex.A9 is the certified copy of the suit map pertaining to the OS.NO.72 of 1992. Ex.A10 is the certified copy of four receipts issued by the Mandal Revenue Officer.
Ex.A11 is the letter issued by the Dy. Executive Engineer, I & CAD,
Nizamabad. Ex.A12 is the attested extract of map issued by the Dy.
Executive Engineer, I & CAD, Nizamabad. Ex.A13 to Ex.A15 are the photographs.
9.As per the contents of Ex.A2, as averred by the plaintiff in
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OS.No.72/1992, these defendants delivered the vacant possession of the
land in Sy.No.2841 to an extent of Ac.0-38 guntas to the plaintiff’s General
Power of Attorney,the plaintiff obtained possession on the day from the defendants since 1987 the plaintiff has been in possession of the suit land.
This itself shows that the plaintiff came into possession of the Ac.0-38 guntas of land, which includes this suit schedule property as per the agreement of sale that was executed in the month of November, 1987 and since then, it has been in possession of the plaintiff. But this has been denied by the defendants and the defendants claims that the plaintiff was never been in possession in the suit schedule property except the land conveyed under Ex.A1 sale deed No.156/1988.
10.The plaintiff claiming adverse possession over the suit schedule property since it has been in the possession of the plaintiff from the date of execution of the agreement of sale as entered in between the plaintiff; the wife and sons of Nune Raghavender Rao at first instance. But the plaintiff has cleverly drafted the pleadings without mentioning the date of agreement and on what date the plaintiff was put in possession over the suit schedule property by the defendants is not mentioned. The plaintiff has neither filed
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the first agreement nor filed the second agreement, as entered in between the plaintiff and sons and wife of Nune Raghavender Rao before this Court in this suit to strengthen the contention of the plaintiff that the plaintiff was put in possession of the suit schedule property in the year 1987 itself, which is very crucial in this case to prove the possession of the plaintiff over the suit schedule property as pleaded by the plaintiff in the plaint and the evidence adduced in this suit.
11.The defendants, who denied the claim of the plaintiff got marked
Ex.B1 to Ex.B20 as stated supra, Ex.B1 is the certified copy of the Judgment in OS.No.72/1992 and OS.No.56/1994, dt: 30.07.1999. Under this
Judgment, the Senior Civil Judge, Nizamabad, dismissed the suit filed by the plaintiff herein, who is the plaintiff in OS.No.72/1992 and defendant in
OS.No.56/1994 filed by the defendants in this suit. Further in the Common
Judgment, the Senior Civil Judge, Nizamabad, decreed the suit vide
OS.No.56/1994 (OS.No.212/1989) filed against the plaintiff herein claiming
the relief of perpetual injunction for the land to an extent of Ac.0-29 guntas in Sy.No.2841. The Senior Civil Judge, Nizamabad granted the decree of perpetual injunction against the plaintiff herein, who is the defendant in
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OS.No.56/1994 for the land to an extent of Ac.0-29 guntas in Sy.No.2841,
this Ac.0-29 guntas of land includes the suit schedule property in this present suit. That itself shows that the plaintiff herein was not in possession of the suit schedule property to an extent of 865 Sq. Yards and the suit schedule property is in the possession of the defendants herein and it further shows that the plaintiff was not in possession of the suit schedule property. The
Judgment and decree passed in OS.No.56/1994 has attained finality.
a) Ex.B2 is the certified copy of the Common Judgment of Hon’ble
High Court in AS.No.2964/1999 and cross objections and
Tr.AS.No.278/2001. Under this Judgment, the Hon’ble High Court for the
State of Andhra Pradesh, at Hyderabad, held in paragraph No.19 that these circumstances show latches on the part of the plaintiff, however, it cannot be held that the plaintiff was put in possession of the suit property. Further held at paragraph No.34 that in view of all these findings, the appeal
Tr.AS.No.278/2001 filed against the Judgment and decree in OS.No.56/1994 (both on the file of the learned Senior Civil Judge, Nizamabad) is also liable to be dismissed. Under Ex.B2 also the Hon’ble High Court had not recognized the right and possession of the plaintiff over the suit schedule
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property which was part and parcel of the suit schedule property in
OS.No.72/1992 and OS.No.56/1994.
b) Ex.B3 is the Judgment of the Hon’ble Apex Court of India vide
Spl. Leave to Appeal (Civil Nos.15968 and 15969 of 2007) under Ex.B3, the
Hon’ble Apex Court of India dismissed the Special Leave Petitions filed by the
plaintiff herein who was unsuccessful in Appeal Suit No.2964/1999 and the
Appeal Suit No.278/2001. Ex.B1 to Ex.B3 amply supports the arguments of learned counsel for the defendants that the plaintiff are not in possession of the suit schedule property, which is part and parcel of the suit schedule property in OS.No.72/1992 and OS.No.56/1994. The Senior Civil Judge,
Nizamabad, the Hon’ble High Court of Andhra Pradesh have holding that the plaintiff was not in possession over the suit schedule property and was in possession only to an extent of the land that was conveyed under Ex.A1 sale deed. In view of these documentary evidence, the claim of adverse possession raised by the plaintiff is not proper and can not be sustained, as she was not in possession of the suit schedule property to an extent of 865
Sq. Yards. When the Courts already held that the plaintiff was not in possession of the suit schedule property again setting up of the claim of the
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adverse possession shall not available to the plaintiff. Ex.B4 are the photographs, Ex.B5 is the original invitation card, Ex.B6 is the certified copy of decree in OS.No.56/1994, Ex.B7 is the certified copy of Judgment in
OS.No.46/1994, Ex.B8 is the CC of Judgment in CC.NO.30 of 1992;, Ex.B9 is
the certified copy of the legal notice, dt: 29.12.1988, Ex.B10 is the certified copy of permission with sanctioned plain of P.Chandraiah, Ex.B11 is the certified copy of the decree in OS.No.180/1993, Ex.B12 is the certified copy of the Order in EP.No.48/2013 in OS.No.180/1993. Ex.B13 is the certified copy of of panchanama, dt: 10.06.2015,Ex.B14 is the certified copy of of receipt, Ex.B15 is the certified copy of of list of inventory, Ex.B16 is the certified copy of of undertaking receipt, Ex.B17 is the certified copy of Bailiff report, Ex.B18 is the certified copy of of proceedings of Head Assistant,
M.R.O.’s Office, Nizamabad, dt: 10.07.1995, Ex.B19 is the seven photographs with the CD and Ex.B20 is the certified copy of of the order in
CMP.No.26628/1999 in AS.No.2964/1999, dt: 21.02.2000 on the file of the
Hon’ble High Court of Andhra Pradesh.
12. ISSUE Nos.1 to 4:-
Since the issue Nos.1 to 4 are inter-related and in connection with the
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possession of the land to an extent of 1976 Sq. Yards, which includes this suit schedule property, hence, issue Nos.1 to 4 are answered together. The the learned counsel for the plaintiff have argued that the plaintiff entered with an agreement of sale with the wife and sons of Nune Raghavender Rao to purchase the land to an extent of Ac.0-38 guntas out of Sy.No.2841 and on the very day, the plaintiff have obtained the possession of the land and further argued that since then, the plaintiff have been in possession of the suit schedule property along with the remaining property, which was agreed to sell the same to the plaintiff. It is further submitted that the plaintiff have filled the low level land with red gravel to get the land elevated from the road level and have been using the same for running the fuel filling station.
13. The learned counsel for the defendants have argued that the plaintiff was never put in possession of the land to an extent of Ac.0-38 guntas out of
Sy.No.2841 and the plaintiff was given possession of the land to an extent of 1111.11 Sq. Yards only under the Ex.A1, except that no possession of the land was given to the plaintiff and further argued that the defendants herein have filed a suit vide OS.No.212/1989 (OS.No.56/1994) against the plaintiff herein for the relief of perpetual injunction for the land to an extent of Ac.0-
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29 guntas and the same was decreed in favour of Brahmananda Rao and
Muralidhar Rao and against the plaintiff, the Court passed a decree holding that the Brahmananda Rao and Muralidhar Rao were in possession of the land to an extent of Ac.0-29 guntas. It is further submitted that the claim of the plaintiff that the plaintiff has been in possession of the land to an extent of 1976 Sq. Yards is incorrect and the plaintiff is in possession only to an extent of 1111.11 Sq. Yards. It is further argued that there is no document produced by the plaintiff to show that the plaintiff has been in possession over the suit schedule property since the date of entering into an agreement of sale i.e., in the month of November, 1987.
14. As stated supra, the plaintiff who filed this suit against the defendants claiming that the plaintiff has been in possession of the land to an extent of 1976 Sq. Yards, which includes the suit schedule property. The plaintiff relied on the Ex.A1 to Ex.A15. It is an admitted fact that the plaintiff purchased the land to an extent of 1111.11 Sq. Yards under Ex.A1 and it is also admitted by the defendants that they delivered the possession of the land conveyed under the Ex.A1. Except the Ex.A1, there is no documentary proof to show that the plaintiff was put in possession of the land to an extent
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of 1976 Sq. Yards, which includes the suit schedule property. The primary document in this case is Ex.A2. Ex.A2 is the certified copy of the plaint in
OS.No.72/1992 (OS.No.28/1996) filed by the plaintiff herein against the wife
and sons of Nune Raghavender Rao, in which, the plaintiff claimed that the defendants delivered the vacant possession of the land in Sy.No.2841, Ac.0-38 guntas of the plaintiff General Power of Attorney, the plaintiff obtained possession on the very day from the defendants, since 1987 the plaintiff has been in possession of the suit land and the plaintiff continued to be in possession of the entire land i n Sy.No.2841 since November, 1987 as pleaded at paragraph No.9 of the Ex.A2.
15. Further averred at paragraph No.20 of the Ex.A2 that, the plaintiff has been in actual possession and enjoyment of the entire land in Sy.No.2841 since
November, 1987 till this day. Thus, the plaintiff is in actual possession of the enti re suit land Ac.0-29 guntas and Ac.0-9 guntas, total Ac.0-38 guntas in
Sy.No.2841 since November, 1987. There is no whisper in the plaint filed in this suit, how the plaintiff delivered the possession of the remaining land to the defendants as the plaintiff claiming the right and possession over the suit schedule property to an extent of 865 Sq. Yards. There is no single piece of
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document produced by the plaintiff to show that the plaintiff has been in possession of the land to an extent of 1976 Sq. Yards elevated from the road level in Sy.No.2841.
16. In this case, the defendants filed OS.No.212/1989 (OS.No.56/1994) against the plaintiff herein seeking the relief of perpetual injunction for the land to an extent of Ac.0-29 guntas, which was remained in the possession of defendants. The OS.No.72/1992 and OS.No.212/1989 were tried together and the Court delivered a Judgment, under which, the OS.No.72/1992 was dismissed and OS.No.56/1994 was decreed by granting perpetual injunction against the plaintiff herein for the land to an extent of Ac.0-29 guntas. It means, this suit schedule property was not in the possession of the plaintiffs in this suit as pleaded by them. In the course of the cross-examination, the
PW1 categorically admitted that “it is true in OS.No.72/1992, I have pleaded that I was in possession of Ac.0-38 guntas in Sy.No.2841 including 100 x 100
Sq. feet. It is true that the said suit was dismissed. It is true that the defendants obtained injunction against us with regard to the land including the sui t schedule property. It is true that the concerned suit filed by the defendants
OS.No.56/1994 is clubbed along with OS.No.72/1992. It is true that
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OS.No.56/1994 is decreed vide OS.No.72/1992 is dismissed. The Ex.B1 is the
certi fi ed copy of the Judgment ino5 and OS.No.72/1992, dt: 30.07.1999. It i s true that AS.No.2964/1999 and Tr.AS.No.278/2001 were filed by me against the sai d Judgment, dt: 30.07.1999. it is true that the High Court has modified the Tri al Court Orders directing the defendants to refund the amount paid by me wi th interest while confirmi ng the other aspects of the Judgment of the Trial
Court. It is true that the defendants have deposited Rs.10,15,750/- in the Court of Seni or Civil Judge, Nizamabad as per the directions of the Hon’ ble High Court and the said amount is withdrawn by me. Ex.B2 is the certified copy of the
Common Judgment of the Hon’ ble High Court in AS.No.2964/1999 and
Tr.AS.No.278/2001. It is true that I have filed S.L.P.No.15968 and 15969 of 1999 before the Hon’ ble Supreme Court and the Hon’ ble Supreme Court has confirmed the order of the Hon’ ble High Court. Ex.B3 is the certified copy of
Judgment of the Hon’ ble Supreme Court”. This admitted part of evidence shows that plaintiff herein was not in possession of suit schedule property.
17. The Senior Civil Judge, at Nizamabad, passed the Common Judgment by clubbing the OS.No.72/1992 and OS.No.56/1994, in which, it is categorically held at paragraph No.10 that “though the plaintiffs contends that
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terms of Ex.A2 were thrust on her, she had received it and also executed counter agreement under Ex.B14 knowing the contents. So even if any possession was gi ven to the plaintiff over entire extent of 38 guntas, she seized to be in possession over the land not covered by the sale deed Ex.A3. Taking possession is not a mere a physi cal act. It includes the intention to use the land as possessor of it. When that intention is revealed by the express terms, it would not be safe to infer from some user of the land that the plaintiff continued to be in possession of entire land of 38 guntas. From the discussion made above, I am of the considered opinion that the plaintiff seized to be in possession of the suit land from the date of the suit agreement Ex.A2 and at- least from 01.07.1988, the date of the sale deed in respect of 9 guntas of land”.
18. The Senior Civil Judge, Nizamabad further held at paragraph No.24 that ‘it i s held on issue No.7 of OS.No.72/1992 that the plaintiff was not in possession of the suit land on the basis of the recitals in Ex.B2 when the relief of speci fic performance is denied, the possession if any the plaintiff was having been of permissive possession seized to be in and the possession must be deemed to be with the defendants, who are lawful owners of the property.
Then, they are entitled to the relief of perpetual injunction”. Further held at
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paragraph No.26 of the Judgment that “the suit in OS.No.56/1994 is decreed restrai ni ng the defendants therein (the plaintiff and Chandraiah referred to in thi s Judgment) by way of perpetual injunction from interfering with the possession of the plaintiff in OS.No.56/1994 (defendants in the discussion of the Judgment) on 30.07.1999 itself, the Senior Civil Judge, Nizamabad held that the plaintiff was not in possession of the suit schedule property in that suit, whi ch i ncludes the suit schedule property in this suit. The question of continuing in possession of the suit schedule property does not arise. When the sui t fi led for the specific performance for the land to an extent of 38 guntas was di smi ssed and in that suit, the Court held that the plaintiffs were not i n possession of the total 38 guntas except the land conveyed under Ex.A1 to an extent of 1111.11 Sq. Yards. Against the said Judgment, the plaintiff herein fi led an appeal before the Hon’ ble High Court. The Hon’ ble High Court also di smi ssed the appeals filed by the plaintiff. Ex.B2, it is categorically held by the
Hon’ble High Court at paragraph Nos.18 and 19 that:
“There is no material wi th regard to the date of the plaintiff coming into possession of the suit property, as, as per Ex.A2, the plaintiff was not put in possession of the property and the plaintiff’ s claim is that she came into possession of the suit
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property under the earlier agreement of sale. Through there is no di spute about the execution of an earlier agreement of sale, the averments of the same are not on record. The claim of the plaintiff that she came into possession of the property on that day, cannot be accepted. In case, the plaintiff came into possession of the property, as claimed by her, on the date of earlier agreement of sale, there ought to have been a mention about the same in
Ex.A2. PW1 in his cross-examination stated that ‘ it is not true to say that the plaintiff agreed in Ex.A2 that she has no right over the land, except the land covered by Ex.A3. The condition with reference to the said aspect in Ex.A2 is wrongly written’ . Thus,
PW1, himself, admitted that the plaintiff accepted that as per
Ex.A3, she has no right over the land, other than the portion mentioned in Ex.A3. If that is so, there was no question of the plaintiff being in possession of the remaining area. Further, Ex.A3 shows land measuring 1111.11 Square yards equivalent to 929.03 square meters was sold under the document for
Rs,44,500/-; the amount was paid and the possession of the same delivered. That means what was delivered under Ex.A3 was only ni ne guntas of land. That again means at the time of execution of
Ex.A2, or even by then, no portion of the land was gi ven into possession of the plaintiff and only at the time of execution of
Ex.A3 an extent of 1111.11 Square yards of land was delivered to the plaintiff. In these circumstances, as there is no reference in
Ex.A2 about the delivery of possession, in Ex.A3 the reference was
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only about the delivery of possession of 1111.11 square yards of land only and it is difficult to believe that the plaintiff was put in possession of the entire property.
It is somewhat strange that the plaintiff, who has paid substantial amount, out of the total sale consideration, has taken sale deed only for about nine guntas of land, not even for proportionate land and kept quite for more than two years, in spite of the defendants filing a suit for injunction against her with regard to possession of the remaining property and subsequently though the injunction was made absolute. These circumstances show latches on the part of the plaintiff. However, it cannot be held that the plaintiff was put in possession of suit property. Thus this poi nt is answered accordingly.”
With the above observati on, the honble High Court dismissed the said appeals filed by the plaintiff herein. Against which, the plaintiff approached the Hon’ble Supreme Court of India. The Hon’ble Supreme Court of India also dismissed the Special Leave Petition. Ex.A3 is the Judgment of the Hon’ble
Supreme Court of India. In Ex.B2, the Hon’ble High Court of Andhra Pradesh, his Lordship held that however it cannot be held that the plaintiff was put in possession of the suit property. It means the plaintiff were not put in possession of the land to an extent of Ac.0-38 guntas as per the agreement entered in between the plaintiff and the wife and sons of Nune Raghavender
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Rao.
19. In the entire pleadings and the evidence adduced by the plaintiffs, nowhere it is stated that the date on which the plaintiff delivered the possession of the remaining land to the defendants herein excluding the suit schedule property and the land purchased under Ex.A1. It is an admitted evidence of PW1 that the plaintiff herein withdrawn the amount deposited by the defendants as per the directions of the Hon’ble High Court of Andhra
Pradesh. Further in this case, there is no evidence at all to prove that the plaintiff used the land to an extent of 1976 Sq. Yards i.e., the entire elevated portion of the land for running the fuel filling station, except the sole evidence of the PW1.
20. Further in this case, the PW1 have admitted in his cross-examination stating that ‘ it is true that in OS.No.180/1993 on the file of the Senior Civi l
Judge, Nizamabad, I got the orders for eviction and recovery of possession
agai nst Chandraiah. It is true that I filed two E.Ps., one for mesne profits and one for recovery of possession out of the said suit. It is true that I was handed over possession of the land under the said E.P. It is true that the plot of 100 x 100 feet is under lease in the name of Chandraiah till I was handed over the
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possession in the said E.P..” This shows that the plaintiff was in possession of the land to an extent of 100 x 100 feet, which comes to 1111.11 Sq. Yards, which was purchased under Ex.A1 from the wife and sons of Nune
Raghavender Rao for establishing Navodaya Filling Station and not more than that land. If really the plaintiff was in possession to an extent of 1976 Sq.
Yards, he should have leased out the entire land to Chandraiah on whose name, the licence was obtained from the Indian Oil Corporation for running the business. But that was not done by the plaintiffs. Hence, it shows that the plaintiff was not in possession of the suit schedule property from the date of execution of first agreement of sale, which has not seen the light of the day.
21. Further the PW1 admitted that ‘ it is true that I stated in OS.No.72/1992 that I am in possession of 9 guntas of registered land, 29 guntas of unregistered land from November, 1987. It is true that in Ex.B1 the Judgment i n
OS.No.72/1992, the Court held that I am in possession of only 9 guntas and not
i n 29 guntas, in OS.No.212/1989 re-numbered as OS.No.56/1994. The defendants herein who are the plaintiff obtained injunction against me for Ac.0- 29 guntas. It is true that on the said order, I went for appeal and also revision
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and both were dismissed.”
22. The plaintiff got examined four persons as PW2 to PW5. The PW2 deposed in his cross-examination stating that the disputed land survey number is not known to the PW2. The PW2 categorically admitted in his cross-examination stating that ‘it is true 100 x 100 feet land is in the possession of the plaintiff’. This 100 x 100 feet land is the land purchased under Ex.A1, which comes to an extent of 1111.11 Sq. Yards. This admitted evidence of PW2 strengthens the contention of the defendants that the plaintiff in this suit is in possession of 1111.11 Sq. Yards only not more than that. If the plaintiff was in possession of the suit schedule property also, the
PW2 he should have deposed when he was questioned specifically by the learned counsel for the defendants. But the PW2 deposed the plaintiff is in possession of the land to an extent of 100 x 100 feet land. The PW2 further admitted as to filing of OS.No.212/1989 by the defendants for injunction not to interfere against the plaintiff and PW1 in respect of the suit schedule land and land to an extent of Ac.0-29 guntas. The PW3, who is also admitted in his cross-examination stating that the plaintiff obtained registered sale deed from the defendants for a piece of 100 x 100 feet. It is true that plaintiff and
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PW1 filed a suit against Chandraiah for vacant 100 x 100 feet of land in 1993.
23. The learned counsel for the defendants though cross-examined the
PW4, nothing have been elicited. The PW5 during the course of cross- examination have deposed that they supplied about 30 to 40 lorry loads of gravel for about 2 to 3 days and filled the gravel for about 20 feet after leaving 5 feet from the main road. On the northern side, there was already gravel was load till the stream (Orre), but PW5 pleaded ignorance as to who filled the said gravel on the northern side. The defendants claims that they themselves filled the gravel to elevate the land, as it was lying at a low level.
24. The entire oral and documentary evidence produced by the plaintiffs and defendants would show that the plaintiff has not got the piece of land to an extent of 1976 Sq. Yards elevated from the road level in Sy.No.2841 and there is no material to hold that the plaintiff used the entire elevated portion of land for running the fuel filling station. Further, the plaintiff has failed to prove that the plaintiff came into possession of the suit schedule i.e., 865.77
Sq. Yards of land to the knowledge of the owners in addition to the land to an extent of 1111.11 Sq. Yards, which was purchased by the plaintiff. As
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stated in the preceding paragraphs, the plaintiff though claimed that he came into possession on the very day of execution of the agreement of sale in the month of November, 1987, but failed to prove the same. Further, though the plaintiff claiming that she is in possession of the land to an extent of 1976
Sq. Yards, no material placed before this Court oral or documentary evidence on what date the remaining portion of the land was handed over to the original owners i.e., the defendants in this suit. Further, the plaintiff who filed a suit in OS.No.72/1992 for specific performance of contract, in that plaint, nowhere it is mentioned that the defendants requested the plaintiff to vacate the land to an extent of 865.77 Sq. Yards. This is an invention of the plaintiff to create a right over the suit schedule property. If really, the defendants requested the plaintiff to vacate from the suit schedule property, the plaintiff should have mentioned the same in OS.No.72/1992 filed against the defendants for the relief of specific performance of contract. Further, if really the plaintiff was in possession of the suit land, the plaintiff should have put forth counter claim for suit land in the suit filed by defendants seeking permanent injunction. But that was not done. Hence, same also strengthens that the plaintiff was not in possession of the suit land at any time.
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25. As argued by the learned counsel for the defendants, the Senior Civil
Judge, Nizamabad, the Hon’ble High Court have confirmed that the plaintiff
was not in possession of the land in Sy.No.2841, except the land conveyed under the Ex.A1 sale deed executed in favour of the plaintiff.
26. In view of the above discussion, this Court is inclined to answer the issues Nos.1 to 4 accordingly against the plaintiff and in favour of the defendants.
27. ISSUE NO.5:- Whether the plaintiff perfected her title by adverse
possession over the piece of land to an extent of 865.77 Sq. Yards of
land ?.
The claim and contention of the plaintiff is that the plaintiff have been in possession of the suit schedule property since the date of execution of the first agreement of sale, which was canceled and since then the suit schedule property has been in continuous possession with the knowledge of the defendants. Hence, the plaintiff perfected her title by adverse possession over the suit schedule property.
The the learned counsel for the plaintiff argued that since the defendants failed to take steps to recover the possession of the said land, the plaintiff perfected her title by adverse possession. Hence, prayed the
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Court to decree the suit in favour of the plaintiff.
28.As the plaintiff came into possession of the suit land and the factum of the possession of the land is to the knowledge of the defendants and the possession of the plaintiffs is undisturbed and no claim that the plaintiff violated the decree, as the suit schedule property is covered by the decree.
The learned counsel for the defendants have argued that the plaintiff cannot claim adverse possession as the plaintiff put-forth the claim of the possession basing on the agreement of sale entered in between the plaintiff and the wife and sons of Nune Raghavender Rao and further argued that since the issue of possession had already been decided by the Court, again canvasing the matter is a hit by Section 11 of the Code of Civil Procedure.
Further, argued that the plaintiff cannot claim adverse possession when he claimed the possession under an agreement. Further submitted that there is no averment about the possession of the suit land in the earlier litigation i.e.,
OS.No.72/1992. Hence, prayed the Court to dismiss the suit as already was
settled holding that the plaintiff was in possession of the land to an extent of 100 x 100 feet, which comes to 1111.11 Sq. Yards. The learned counsel for the defendants relied on a decision in a case of D.N.Venkatarayappa and
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another Vs. State of Karnataka and others and another decision in a case of Dharampal (dead) through LRs Vs. Punjab Wakf Board and others and another decision in Vemula Prabhakar Vs. Land Acquisition Officer and
Revenue Divisional Officer, Peddapalli, Karimnagar District.
29. It is settled law that to claim adverse possession, the plaintiff has to furnish the details of commencing of possession after setting up hostile title against true owner to their knowledge for a period of 12 years openly and continuously. The person, who claims adverse possession is required to establish the date on which he came into possession, nature of possession, the factum of possession, knowledge of the true owner, duration of possession and that possession was open, undisturbed.
30. The concept of adverse possession may be understood, as such, possession commencing in wrong and being continued as against right. It is a actual hostile possession as against true owner by express or implied denial of title. The plaintiff in order to claim adverse possession, the plaintiff must show that the plaintiff entered into the possession of the land wrongfully and continued for such a long period to the knowledge of the true owner of the land and it must be in continuous and undisturbed. The claim of adverse
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possession, which is in denial of the title of the true owner of the land. It must be adequate in continuity, in publicity and in extent to show that it was possession adverse to the real owner.
In WESTs Legal Thesaurus Dictionary, the word ‘adverse possession’ is defined as follows:
31. Adverse possession: A method of acquiring title to land without buying or paying for it in the traditional sense, the following is required: a). actual possession or occupancy of the land that is, b) hostile to the current owner,
c) visible, open and notorious, d). exclusive, e). continuous for a statutorily defined number of years and f). maintained under a claim of right as against everyone else. Thus, mere continuing in possession or entering into possession of the property lawfully under unregistered sale deed, such possession is permissive in nature and it would not ripen into adverse possession, unless, the person in possession set up hostile against the owner of the property. Ignoring the unregistered sale deed, continuing in possession openly and notoriously for more than 12 years from the date of setting up hostile title would consequent adverse possession, as held in
Meenugu Mallaiah and others Vs. Ananthula Rajaiah and another in 2 nd
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Appeal No.383/2004, Andhra Pradesh High Court.
32. Coming to this case, the contention of the plaintiff is that he came into possession of the suit schedule property as on the very day of the execution of the agreement of sale that was entered in between the plaintiff, the wife and sons of Nune Raghavender Rao agreeing to sell Ac.0-38 guntas of land in
Sy.No.2841. Since then, this suit schedule property has been in the possession of the plaintiff and this suit schedule property is part and parcel of the land to an extent of Ac.0-38 guntas in Sy.No.2841. In the plaint in
OS.No.72/1992, it is categorically mentioned by the plaintiff stating that the
defendants delivered the vacant possession of the land Sy.No.2841, Ac.-38 guntas to the plaintiffs General Power of Attorney, the plaintiffs obtained possession on the very day from the defendants since 1987, the plaintiff has been in possession of the suit land.
33. The present suit schedule property is the part and parcel of the suit schedule land in OS.No.72/1992. While delivering the possession, the Senior
Civil Judge, Nizamabad, through the Common Judgment held that the
plaintiff was seized to be in possession of the suit schedule property therein and granted the perpetual injunction against the plaintiff herein and who was
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defendant in OS.No.56/1994. On 30.07.1999 itself the Senior Civil Judge,
Nizamabad held that the plaintiff was seized to be in possession of the land to an extent of Ac.0-38 guntas excluding the land to an extent of 1111.11
Sq. Yards. Even the plaintiff is in possession of any piece of land, it can not be said that it is uninterrupted one, as the defendants already filed suit claiming the right and possession over the suit land which is part and parcel of the suit land in OS.NO.56 of 1994.
34. As per the pleadings and the evidence of the plaintiffs, the plaintiff came into the possession of the suit schedule property though not admitted under an agreement of sale that was entered in between the plaintiff herein, the wife and sons of Nune Raghavender Rao in the month of November, 1987 itself. It means the plaintiff came into possession with the permission of the owners of the land. Even in the plaint as in OS.No.72/1992, the plaintiff contended at paragraph No.8 that an agreement of sale was executed on 04.01.1998. The defendant agreed and declared that the plaintiff can retaine and continue her possession on the said land delivered to her in November, 1987 in-furtherance and part performance of the said agreement. This averment shows that the plaintiff lawfully entered into the
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possession of the land in Sy.No.2841 held by the defendants. Hence, the plaintiff not entered into the possession of the suit schedule property without the knowledge and permission of the defendants, who are the owners of the suit schedule property. As stated in the decision, the concept of adverse possession commences in wrong and continuous as against the right. But in this case on hand, the plaintiff came into possession of the land though not admitted with the permission of the owners of the said land.
Though the defendants not admitted the contention of the plaintiff that the defendants delivered possession of the land to an extent of Ac.0-38 guntas in
Sy.No.2841.
35. As argued by the learned counsel for the defendants, the plaintiff who comes into the possession under an agreement sale, she is not entitled to claim the adverse possession over the said piece of land. In the decision of
Meenugu Mallaiah and others Vs. Ananthula Rajaiah and others, it was held that in Mohan Lal (deceased) through his LRs Kachru and others Vs. Mirza Abdul
Gafar and another referred supra, “the possession is clarified since the plea of adverse possession is inconsistent with the plea of part performance Under
Section 53 (A) of Transfer of Property Act, unless the person, who set up
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such plea has disclaimed his right under agreement of sale or unregistered document, he is not entitled to claim independent right perfecting his title by adverse possession. Therefore, the person, who purchased the property under an agreement of sale or under unregistered sale deed is not entitled to set up a plea of adverse possession while invoking Section 53 (A) of Transfer of Property Act to protect his possession. But, he is entitled to claim right either by adverse possession or by part performance subject to establishing requirements. But in the present case, the plaintiff filed suit for declaration of title based on negative prescription i.e., adverse possession and at the stage of hearing this Appeal, noticing the principles laid down in Gurudwara
Sahib Vs. Gram Panchayat village Sirthala and another, requested this
Court to give liberty to invoke Section 53 (A) of Transfer of Property Act in case, the Court declined to grant declaratory relief. Further held that:
“In the present facts, the plaintiff allegedly purchased the property under unregistered sale deed, which has not seen the li ght of the day, till today. It is not his case that he wrongfully entered into possession of the property by dispossessing the original owner, but allegedly entered into the possession of the property as a purchaser by unregistered sale deed, that means permissive possession, it would never ripen into adverse
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possession unless the plaintiff is continuing in possession of the property for ever a period of 12 years after setting up hostile title to the knowledge of the original owner disclaiming his right under unregistered sale deed. There is absolutely no iota of evidence and pleading as to when the plaintiff set up hostile title against the 1 st defendant, from whom he allegedly purchased the property and disclaiming right under unregistered sale deed.
Therefore, the plaintiff is not entitled to claim declaration of his ti tle by adverse possession”.
36. While the things stood like this, the defendants in this suit filed
OS.No.212/1989 (OS.No.56/1994) against the plaintiff herein for the relief
of perpetual injunction, claiming that the plaintiffs in the said suit were in possession of the land to an extent of Ac.0-29 guntas and the said suit was decreed in favour of Brahmanand Rao and Muralidhar Rao and others holding that the land to an extent of A.0-29 guntas is in possession of the plaintiff in that suit, who are the defendants in this suit. When the defendants asserted their possession in the year 1989 itself, the question of claiming adverse possession by the plaintiff in this suit cannot be accepted. If the plaintiff proves his possession over the suit schedule property adequate in continuity in publicity and in extent to show that it was possession adverse to the real owner. When the defendants herein claimed that they are in possession of
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the land to an extent of Ac.0-29 guntas, which includes this suit schedule property claiming the adverse possession by the plaintiff over the land to an extent of 865.77 Sq. Yards is not possible. The plaintiff herein she never pleaded or never filed any counter claim in the suit filed by the defendants in
OS.No.212/1989 (OS.No.56/1994).
37. In view of the above discussion, considering the evidence oral and documentary, this Court is of the view that the plaintiff has failed to establish her possession over the suit schedule property adverse to the true owner of the land and perfected her title. As stated supra, the claim of adverse possession is not available to the plaintiff herein as the plaintiff entered into the land after entering into an agreement of sale. Hence, the possession if any is only a permissive but it is not wrongful possession to the knowledge of the real owner. Accordingly, this issue is answered against the plaintiff and in favour of the defendants.
38. ISSUE NO.6: -Whether there is any cause of action to file this suit?
As per the averments of the plaint, the plaintiff have shown the cause of action arose on 06.06.2009, when some of the defendants tried to encroach upon the land, which is in the possession of the plaintiff and tried
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to disturb the possession of the plaintiff over the suit schedule property. But the plaintiff resisted the attempts of some of the defendants and they went away. Though the plaintiff claims that the plaintiff has been in possession of the suit schedule property i.e. to an extent of 865.77 Sq. Yards of land in
Sy.No.2841, but except the sole evidence of PW1, as stated supra, no piece of documentary evidence is produced by the plaintiff to establish her possession of over the suit schedule property. Further, as stated in the preceding paragraphs that the plaintiff claimed that she has been in possession of Ac.0-29 guntas of land in Sy.No.2841. Now, in this suit, the plaintiff claims that she has been in possession of the suit schedule property to an extent of 865.77 Sq. Yards only. There is no averments in the plaint and also there is no evidence placed by the plaintiff before this Court in this suit when the plaintiff delivered the possession of the remaining land out of
Ac.0-29 guntas of land in Sy.No.2841. As decreed by the Senior Civil Judge,
Nizamabad in OS.No.56/1994, the defendants were in possession of the land to an extent of Ac.0-29 guntas in Sy.No.2841.
39. Though the plaintiff pleaded in her plaint that some of the defendants tried to encroach upon the suit schedule property, but the plaintiff is not
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particular which one of the defendant tried to encroach upon the suit schedule property on 06.06.2009 and there is no evidence brought on record as to the steps taken by the plaintiff when some of the defendants tried to encroach upon the suit schedule property. Hence, this Court is of the view that the plaintiff has failed to show cause of action to file the suit against the defendants. Accordingly, the issue No.6 is answered against the plaintiff.
40. ISSUE NO.7: Whether the suit is hit by the principles of
resjudicata in the light of Judgment in OS.No.72/1992 on the file of the
Senior Civil Judge, Nizamabad and in OS.No.56/1994 on the file of the
Senior Civil Judge, Nizamabad (OS.No.212/1989 on the file of the District
Munsif, Nizamabad) passed by the Subordinate Judge, Nizamabad and as
confirmed by the Hon’ ble High Court and the Hon’ ble Supreme Court of
India?
The the learned counsel for the plaintiff have argued that the principles of resjudicata does not apply to this case, since the issue of adverse possession has not been decided by the Courts in earlier suits. Hence, submitted that there is no strengthen in the arguments of the learned counsel for the defendants. Further submitted that the plea of resjudicata has to be specifically pleaded by the defendants and the same has to be proved before this Court. Since the plea of adverse possession was not there
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in the earlier suits, the issue was not decided by any competent Court of law in earlier suit, hence resjudicata is not applicable to the present suit. If the question of perfecting title by adverse possession is decided by any competent Court in earlier suit between the same parties and held that the plea of adverse possession was not established, then only, the question of resjudicata comes into play since the same has not been decided by the competent Court of law, the principles of resjudicata does not apply to this suit filed by the plaintiff.
41. On the other hand, the learned counsel for the defendants strenuously argued that the issue of possession had already been decided by the competent Court of law and it has become final, again claiming the right over the suit schedule property by way of adverse possession is squarely attracts the principles of resjudicata, as the principle of an adverse possession is based on the possession of the suit schedule property held by a person.
Hence, the suit is barred as the principles of resjudicata applies to this suit as already the issue of possession was decided by the competent Court holding that the plaintiff is not in possession of the any piece of land except to the land purchased under the registered sale deed by the plaintiff and has
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become final.
42. The Section 11 of Code of Civil Procedure deals with the “Resjudicata” as follows:
“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in i ssue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court”.
43. In a case of R.M.Sundaram @ Meenakshi Sundaram Vs. Sri
Kayarohanasamy and Neelayadhakshi Amman Temple (through its Executive
Officer) Nagapattinam, Tamilnadu, their Lordships held in paragraph No.30 that:
This Court is Sheodan Singh Vs. Daryao Kunwar (SMT) AIR 1966 SC 1332 has laid down that the following conditions must be satisfied to constitute a plea of resjudicata:
i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was di rectly and substantially in issue in the former suit; ii) The former suit must have been a suit between the same
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parties or between parties under whom they or any of them claim; iii) The parties must have litigated under the same title in the former suit; i v) The Court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such i ssue is subsequently raised; and
v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the
Court in the first suit.
1) General principle of resjudicata Under Section 11 of the
Code contains rules of conclusiveness of Judgment, but for resjudicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was di rectly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality.
44. In this suit before this Court, the plaintiff entered into an agreement of sale with the wife and sons of Nune Raghavender Rao to purchase the land to an extent of Ac.0-38 guntas in Sy.No.2841 and on the very same day, the plaintiff got the possession of the land to an extent of Ac.0-38 guntas, but unfortunately, the plaintiff could get the registered sale deed for the land to
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an extent of 1111.11 Sq. Yards under Ex.A1 registered sale deed and possession was also delivered for the land, which was conveyed under the
Ex.A1 registered sale deed and the remaining land in Sy.No.2841 was in the possession of the defendants. When the plaintiff interfering in the possession and enjoyment of the land to an extent of Ac.0-29 guntas in Sy.No.2841,
Brahmanand Rao and Muralidhar Rao and others filed a suit in
OS.No.212/1989 against the plaintiff herein, who was defendant in the said
suit claimed perpetual injunction against the plaintiff herein and the same was decreed in favour of the plaintiffs therein, who are the defendants in this present suit by the Senior Civil Judge, Nizamabad under Ex.B1, the Common
Judgment passed in OS.No.56/1994 and OS.No.72/1992. In the said
Judgment, the Senior Civil Judge, Nizamabad restrained the plaintiff from interfering in the possession and enjoyment of the land to an extent of Ac.0- 29 guntas, which was in the possession of the plaintiffs in OS.No.212/1989 (OS.No.56/1994). There, the Senior Civil Judge, Nizamabad has decided the issue of possession against this plaintiff, who was defendant in the said suit.
Even in the suit vide OS.No.72/1992 filed by the plaintiff herein seeking the relief of specific performance of contract, the same was dismissed, in which, the Senior Civil Judge, Nizamabad held that the plaintiff seized to be in
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possession of the property in Sy.No.2841. This plaintiff knocked the doors of the Hon’ble High Court of Andhra Pradesh against the Judgment and decree passed in OS.No.212/1989 (OS.No.56/1994) and OS.No.72/1992 and the Hon’ble High Court after thorough hearing, dismissed the appeals filed by the plaintiff and against the said order, the plaintiff approached the
Hon’ble Supreme Court of India vide S.L.P.No.15968 and 15969 of 2007 and
the same was also dismissed by the Hon’ble Apex Court of India. In all these stages, it was held that the plaintiff was not in possession of any piece of land except the land covered under Ex.A1 i.e. land to an extent of 1111.11
Sq. Yards. When the Courts consistently held that the plaintiff was not in possession of the land to an extent of Ac.0-29 guntas, which includes this suit schedule property i.e., 865.77 Sq. Yards, the question of drawing adverse possession does not arise and it cannot be said that the plaintiff perfected her title by adverse possession.
45. The issue of the possession of the suit schedule property which is part and parcel of the land to an extent of Ac.0-29 guntas, which is subject matter of OS.No.212/1989 (OS.No.56/1994), the issue of possession had already been decided and has became final, hence, the question of raising adverse
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possession against the defendants is not available to the plaintiff since it attracts the principles of resjudicata since the parties to the earlier suits and the parties to this suit are one and the same but the piece of the land is different, but it is part and parcel of the land to an extent of Ac.0-29 guntas.
46. One of the arguments of the the learned counsel for the plaintiff is that the plea of resjudicata has to be pleaded and proved by the defendants.
In this suit, the defendants have categorically pleaded at paragraph No.11 of the written statement stating that the decisions of courts will operate as resjudicata and the present suit is barred by the application of the principles of resjudicata. The defendants clearly pleaded in their written statement, the suit is not maintainable as it is hit by the resjudicata. Further, the defendants have produced the Judgments passed by the competent Civil Courts, which decided the issue in between the plaintiff and defendants and they are marked as Ex.B1 to Ex.B3 i.e., certified copy of Judgment in OS.No.56/1994 and OS.No.72/1992; certified copy of Common Judgment of the Hon’ble
High Court in AS.No.2964/1999 and Tr.AS.No.278/2001 and the Judgment of the Hon’ble Apex Court of India respectively. The defendants have clearly pleaded and also proved the same by producing the Judgments passed by
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the Courts. The parties to the earlier litigation and parties to the present suit are one and the same, but the subject matter i.e., this suit schedule property in the present suit is part and parcel of the suit schedule properties as mentioned in OS.No.72/1992 and OS.No.212/1989 (OS.No.56/1994) and the issue of possession had already been decided by the Court holding that the plaintiff was not in possession. Hence, the principles of resjudicata squarely applies to the present suit and as such, the suit is hit by the application of principles of resjudicata. In a case of Sardar Balwanth Singh
Vs. Sardar Bhagath Singh, reported in 2016 (3) ALT 746 (APHC), his Lordship held that:
“When the plaintiff claimed relief of declaration, burden is heavy on him to prove his right over the suit property with cogent and convincing reasons. When there was an earlier finding in respect of the same property, that was gi ven in the suits filed by plaintiff hi mself, his burden is more heavy….”.
“No doubt, earlier suit OS.No.6 of 1994 was only perpetual i nj unction but even for considering the relief of perpetual i nj unction, the Court has to incidentally verify the title and in that process, held that suit property was common passage and not exclusive property of any of the parties and such finding would bi nd both parties herein who are also parties to the earlier suit.
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PANCHAKSHARI
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As rightly pointed out by advocate for appellant-defendant, learned trial Judge has rightly applied principle of resjudicata to the case on hand but the lower appellate Court on surmises and presumptions reversed such finding which in my view is not a correct approach”.
47. In view of the above discussion, this court is of the view that the principles of Resjudicata applicable to the facts of the present case since the issue of possession had already been decided and held that the plaintiff was not in possession. As such, this court is inclined to answer the issue No.7 against the plaintiff and in favour of the defendants.
48. ISSUE NO.8:Whether the suit for declaration and injunction is maintainable ?
In view of the findings given on issue Nos.1 to 7, which are answered against the plaintiff and in favour of the defendants, this Court is of the view that as the plaintiff failed to establish adverse possession over the suit schedule property against the defendants and as the plaintiff failed to show her possession over the suit schedule property, as already in OS.No.56/1994, the Senior Civil Judge, Nizamabad held that the plaintiff seized to be in possession of any piece of land in Sy.No.2841 and granted perpetual injunction against this plaintiff, this court is of the view that the suit for
Digitally signed by CH
PANCHAKSHARI
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declaration and injunction against the defendants is not maintainable as already Civil Court of competent jurisdiction decided that the defendants are in possession of the land to an extent of Ac.0-29 guntas, which includes this suit schedule property. Accordingly, the issue No.8 is answered against the plaintiff and in favour of the defendants.
49. ISSUE NO.9:Whether the suit is not properly valued and the
Court Fee paid is not sufficient?
The plaintiff valued the suit Under Section 24 (b) of A.P.C.F. and S.V.
Act and paid Court Fee on one-half of the market value of the immovable property in terms of Section 24 (b) of A.P.C.F. and S.V. Act, as the plaintiff is in possession of the suit schedule property. The plaintiff valued the suit properly and the Court Fee paid is sufficient in view of the Section 24 (b) of
A.P.C.F. and S.V. Act. Accordingly, the issue is answered.
50. ISSUE NO.10:To what relief?
In view of the findings given on issue Nos.1 to 8, which are answered against the plaintiff and in favour of the defendants, the plaintiff is not entitled to a decree declaring that the plaintiff is the owner in possession of the suit land and also not entitled to the relief of perpetual injunction as prayed for. Accordingly, the issue No.10 is answered.
Digitally signed by CH
PANCHAKSHARI
OS.19/2009 Paramalla Satya Devi Vs. Nune Muralidhar Rao and 14 Otrs. Dt: 06.02.2023. 68 of 70.
In the result, the suit of the plaintiff is dismissed with costs.
Dictated to the Stenographer Grade-I, transcribed by her, corrected and pronounced by me in the open Court, on this
the 6 th day of February, 2023.
Digitally signed by CH
PANCHAKSHARI
II-Addl. District Judge, Nizamabad.
Appendix of Evidence
Witnesses examined
For Plaintiff: For Defendants:
PW1: Paramalla Pentaiah.DW1: Nune Subhash Rao. PW2:Thatikonda Satyanarayana.DW2: Kulachari Nagaiah. PW3: P.Rajeshwar Reddy.DW3: Nayakwadi Gangadhar. PW4: P.Narsing Rao. PW5:Gunkanti Rajeshwar.
EXHIBITS MARKED
For Plaintiff:
Ex.A1: Certified copy of sale deed vide Doc.No.156/1988, dt: 12.01.1988, 10.02.2009.
Ex.A2: Certified copy of plaint in OS.No.72/1992 (OS.No.28/1996).
Ex.A3: Certified copy of written statement in OS.No.72/1992.
Ex.A4: Certified copy of Commissioner’s report with map.
Ex.A5: Set of six photographs along with receipt.
Ex.A6: Certified copy of undertaking by the Advocate for defendants in
OS.No.72/1992, dt: 05.04.1994.
Ex.A7: Certified copy of charge-sheet in Cr.No.359/1989 of Police Station Town-I, Nizamabad, dt: 24.10.1989.
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PANCHAKSHARI
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Ex.A8: Map of suit schedule property.
Ex.A9: Certified copy of suit map pertaining to OS.No.72/1992 (OS.No.28/1996).
Ex.A10:Receipts (4) issued by the Mandal Revenue Inspector.
Ex.A11:Letter issued by the Dy. Executive Engineer, I & CADD, Nizamabad.
Ex.A12:Attested extract of map issued by the Dy. Executive Engineer, I & CADD, Nizamabad.
Ex.A13:Photograph, dt: 22.06.2009.
Ex.A14:Photograph, dt: 20.10.2017.
Ex.A15:Photograph, dt: 09.11.2017.
FOR DEFENDANTS:
Ex.B1: Certified copy of Judgment in OS.No.56/1994 and
OS.No.72/1992, dt: 30.07.1999.
Ex.B2: Certified copy of Common Judgment in AS.No.2964/1999 and Tr.AS.No.278/2001 of the Hon’ble High Court.
Ex.B3: Certified copy of Judgment in Spl. Leave to Appeal (C) Nos.15968-15969/2007 of the Hon’ble Supreme Court of India.
Ex.B4: Photograph (shows a trench around the office).
Ex.B5: Original invitation card.
Ex.B6: Certified copy of decree in OS.No.56/1994, dt: 30.07.1999.
Ex.B7: Certified copy of Judgment and decree in OS.No.46/1994, dt: 18.03.2003.
Ex.B8: Certified copy of Judgment in CC.No.30/1992, dt: 26.07.1993.
Ex.B9: Certified copy of legal notice, dt: 29.12.1988.
Ex.B10:Certified copy of permission copy with sanction plan of P.Chandraiah.
Ex.B11:Certified copy of decree in OS.No.180/1993, dt: 03.12.1999.
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PANCHAKSHARI
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Ex.B12:Certified copy of Order in EP.No.48/2013 in OS.No.180/1993,
dt: 07.08.2014.
Ex.B13:Certified copy of panchanama, dt: 10.06.2015.
Ex.B14:Certified copy of receipt.
Ex.B15:Certified copy of list of inventory.
Ex.B16:Certified copy of undertaking receipt.
Ex.B17:Certified copy of Bailiff report.
Ex.B18:Certified copy of proceedings of MRO, Nizamabad, dt: 10.07.1995.
Ex.B19:Photographs (7 in Nos.) with CD.
Ex.B20:Certified copy of Order in CMP.No.26628/1999 in
AS.No.2964/1999, dt: 21.02.2000 of the Hon’ble High Court of
AP.
Digitally signed by CH
PANCHAKSHARI
II-Addl. District Judge, Nizamabad. ****