O.S No.34 of 2017 Date:31.10.2023 Page.No. 1 of 38
IN THE COURT OF THE JUNIOR CIVIL JUDGE-CUM-JUDICIAL
MAGISTRATE OF FIRST CLASS AT: CHENNUR
PRESENT: Sri Sampath Challuri
Junior Civil Judge-cum-
Judicial Magistrate of First Class,
Chennur.
Tuesday, this the 31 st day of October, 2023
O.S.No. 34 of 2017 and OS.No.14 of 2017
OS.No. 34 of 2017
Between:
Kasula @ Buddoju Vamana Murthy, s/o. Late Kasula @ Buddoju Sambaiah, age: 68 years, occ: Rtd. Employee, r/o. H.No.23-3, Godavari Road, Chennur, presently r/o. HIG-134, housing board colony, Jagityal.
... Plaintiff
AND
1. Srirambatla Prabhavathi, w/o. Purshotham, age: 60 years, occ: House wife, r/o. Brahmanwada, near round Hanuman temple, Chennur.
2. Kasula @ Buddoju Dakshina Murthy, s/o. Late Sambaiah, age: 72 years, occ: Rtd. Government employee, r/o. New bus stand area, Near the house of Mula Raji Reddy, Chennur.
3. Kasula @ Buddoju Madhav (died)
4. Kasula @ Buddoju Vijaya Murthy, s/o. Late Sambaiah, age: 66 years, occ: Rtd. Government employee, r/o. Near Chota Hanuman temple, Godavari road, Chennur.
5. Kasula @ Buddoju Ravinder, s/o.Late Kasula @ Buddoju Chandra Shekar, age: 48 years, occ: Head master in Government school, Itikyala, Luxettipet mandal, Mancherial district.
6. Kasula @ Buddoju Santhosh, s/o. Late Kasula @ Buddoju Chandra Shekar, age: 42 years, r/o. H.No.11-9-2, SBI colony, Road No.2, Kothapet, Hyderabad-60.
7. Kasula @ Buddoju Sathish, s/o. Late Kasula @ Buddoju Chandra Shekar, age: 38 years, r/o. New bus stand area, near the house of Mula Raji Reddy, Chennur.
8. Kasula @ Buddoju Sandeep, s/o. Late Madhav, age: 30 years, occ: Pvt. Employee,
9. Kasula @ Buddoju Harini, d/o. Late Madhav, age: 38 years, occ: House wife,
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 2 of 38
10. Kasula @ Buddoju Swapna, d/o. Late Madhav, age: 32 years, occ: House wife, (D6 to D 10 are r/o. H.No.175/5/44/2, Besides SSS Function hall, Sairamnagar, Road No.2, Boduppal, Hyderabad. )
( Defendant No.3 died, as such his legal representatives i.e., defendant
Nos.8 to 10 were brought on record as per the orders in
IA.No.381/2021, dated 30.11.2021 )
...Defendants
OS.No. 14 of 2017
Between:
Kasula @ Buddoju Vamana Murthy, s/o. Kasula @ Buddoju Sambaiah, age: 68 years, occ: Rtd. Employee, r/o. Chennur village and mandal, Mancherial district.
... Plaintiff
AND
Srirambatla Prabhavathi, w/o. Purshotham, age: 60 years, occ: Agriculture, r/o. Brahmanwada, Chennur village and mandal, Mancherial district.
... Defendant
These suits are coming before me for final hearing in the presence of Sri T. Bala Bhaskar and Sri M. Karthik Kumar, Advocates for the plaintiff and Sri S. Sharath Kumar, Advocate for the defendant No.1, Sri Kamala Manohar Rao, Advocate for defendant Nos.2,3, 5 to 7 and defendant No.4 remained set-exparte and after hearing and having stood over for consideration till this day, the Court delivered the following :
:: COMMON JUDGMENT ::
1.OS.No. 14 of 2017 has been clubbed with OS.No.34 of 2017. The plaintiff and defendant No.1 are the same in both suits, the defendant Nos.2 to 4 and father of defendant Nos.5 to 7 are brothers of plaintiff, defendant
Nos.8 to 10 are daughters and son of deceased defendant No.3 in OS.No.34 of 2017. For brevity, the parties in both sides as referred to arrived in
OS.No.34 of 2017.
The suit in OS.No.14 of 2017 is filed by the plaintiff seeking relief for perpetual injunction against the defendant for the suit schedule property i.e.,
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 3 of 38
agricultural land in Sy.No.259/A7 to an extent of Ac.1-05 guntas situated at
Chennur village and mandal, Mancherial district.
The suit in OS.No. 34 of 2017 filed by the plaintiff seeking for cancellation of registered sale deed bearing No. 1813/2004, dated 12.03.2004 executed by defendant Nos.2,3 and father of defendant Nos.5 to 7 in favour of defendant No.1 as null and void and the suit schedule property in OS.No. 34 of 2017 is agricultural land in Sy.No.259 to an extent of Ac.5- 26 guntas situated at Chennur village and mandal, Mancherial district.
2. The pleadings in OS.No.34 of 2017 in a nutshell as follows:
The case of the plaintiff is that he, defendants Nos.2, 3, 4 and father of defendant Nos.5 to 7 are brothers and sons of Buddoju @ Kasula
Sambaiah and their father Sambaiah was the absolute owner, pattedar and possessor of the suit schedule land to an extent of Ac.5-26 guntas in Sy.
No.259 situated at Chennur village and mandal. After his death, his five sons namely Dakshina Murthy (Father of defendants Nos.5 to 7),
Chandrashekar (Defendant No.2), Madhav (Defendant No.3), Vamana
Murthy (Plaintiff) and Vijaya Murthy (Defendant No.4) inherited the same in the year 1983, their names were entered in the revenue records as joint owners and possessors of the suit land.
Till the year 2016, they were in joint possession and used to cultivate the same. On 25.04.2016 all the joint family properties were partitioned orally and they got each Ac.1-05 guntas of land. Hence, the plaintiff became absolute owner for his extent and also patta was issued in his name.
Further, the plaintiff worked as a Branch Manager in a Nationalized Bank
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 4 of 38
and retired from service at Jagityal, after his retirement he settled at Jagityal and used to look after his properties from Jagityal. Defendant No.1 who is in no way concerned with the suit schedule property, started claiming rights over the suit schedule land and tried to occupy the same wrongfully. As such, the plaintiff filed one suit in OS.No.7 of 2017 before the Hon’ble vacation court, Adilabad on 16.05.2017 for perpetual injunction, the same was transferred and re-numbered as OS.No.14 of 2017.
In the meantime, defendant No.1 filed a ROR appeal before the
Revenue Divisional Officer, Mancherial vide G/1742/2017, dated 01.06.2017 against the plaintiff and other defendants to enter her name in the revenue records as a pattedar and possessor for the suit schedule property and correction of certain entries. In that revenue appeal, the plaintiff appeared and obtained copies for filing his counter. On reading said petition, the plaintiff came to know and was surprised to see the sale deed bearing
No.1813/2004, dated 12.03.2004 executed in the name of defendant No.1 for the suit schedule property under the guise of said document, she sought for mutation. As such the plaintiff approached the Sub-Registrar, Mancherial and obtained a certified copy of the said document which was alleged to have been executed in the name of defendant No.1 by defendants Nos.2, 3 and the father of defendant Nos.5 to 7 by alienating entire suit schedule property in favour of defendant No.1.
3. The further case of the plaintiff is that when all the brothers were in joint possession of suit schedule property and their names were entered in the revenue records as pattedars, the execution of said registered sale deed by some of the joint family members without the consent and knowledge of
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 5 of 38
remaining members will not create any rights over the said property, the joint family members cannot extinguish the right of other joint family members.
Therefore, it appears that some of the joint family members and defendant
No.1 conspired together and created the said document to knock away the undivided share of the plaintiff. Therefore, the said document is bogus, false and a sham document, the same will not create any rights over the undivided the share of plaintiff and is liable to be cancelled.
4. The further case of the plaintiff is that if defendant No.1 is a bonafide purchaser she would have contact all the joint family members and get an execution sale deed through all the family members of the joint family, she knows about the family members of Sambaiah as she is also resident of the same locality person,belongs to the same community and has knowledge of the entire family background of Sambaiah. If at all defendant No.1 purchased suit schedule property under the said sale deed, which circumstances prevented her to mutate the suit schedule land in her name for 13 years by producing the said document before the competent revenue authorities.Therefore, she filed an RDO appeal after receipt of the summons in OS.No.14 of 2017, it shows that the said sale deed is created and false document, the defendant No.1 will not get any rights over the suit schedule property, said sale deed is liable to be cancelled as null and void in the eyes of law. Hence, the suit.
5. On receipt of the summons, the defendant Nos.1 to 7 appeared before the court through their counsels.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 6 of 38
On 31.10.2017, defendant No.1 filed his written statement. On 06.12.2017 written statements of defendants Nos.2, 3, 5 to 7 were filed, but defendant No.4 did not file. Hence, the proceedings against defendant No.4 went into set-exparte.
From the record, it is found that in view of the orders in
IA.No.381/2021 defendants Nos.8 to 10 were impleaded, and a summons
was issued to them, but on 14.06.2022 defendant No.8 set-exparte. On 22.07.2022 the summons was served on defendants Nos.9 and 10 by way of paper publication, the proof of paper publication was filed for the defendant
Nos.9 and 10, but there was no representation on 27.10.2022, hence the defendant Nos.9 and 10 were set-exparte.
6.It is the case of defendant No.1 is that she is the absolute owner and possessor of the suit schedule property by virtue of the sale deed bearing No.1813/2004, dated 12.03.2004, since the purchase, she is enjoying the property without any disturbance. Even prior to the purchase, defendant No.1 and her parents had been in physical possession of the suit schedule property for 50 years. After purchase her name was recorded in the pahanies for the years 2003-04, 2005-06, 2006-07, 2007-08, 2009-10, 2012-13, 2014-15 to 2017-18.
The further case of defendant No.1 is that originally the suit schedule land belonged to the Boddoju Sambaiah/father of the plaintiff. During his lifetime said Sambaiah and the father of the defendant No.1 Kommera
Laxman Rao were cultivators of suit land. After the death of Kommera
Laxman8 Rao his widow wife Kommera Susheela Bai/Mother of the
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 7 of 38
defendant was continued, enjoyed the suit schedule property and also Rythu pasu pusthakamu were given to the said Kommera Susheela Bai. Defendant
No.1 purchased the entire suit schedule property for valuable consideration under the registered sale deed bearing No.1813/2004. Therefore, the plaintiff nor any legal heirs of the Boddoju Sambaiah left any land. The plaintiff filed one suit for perpetual injunction vide in OS.No.14 of 2017, after going to the pleadings in a written statement it seems to be concluding that he will not succeed in the suit, as such he filed this false suit.
On careful perusal of the pahanies for the years 2003-04, 2005-06, 2006-07, 2007-08, 2009-10, 2012-13, and 2014-15 the name of the plaintiff is missing even in the joint pattedar column. The entire suit schedule land is transferred through a registered sale deed and possession was delivered to defendant No.1, at the time of purchase of the land the plaintiff and on of his brother Vijaya Murthy were elsewhere by virtue of his employment but his three brothers namely Boddoju Chandra Shekar, Dakshina Murthy and
Madhav made defendant No.1 to believe that there will not be any problem either with the plaintiff or with Vijaya Murthy by stating that the proportionate sale consideration would be passed on to them, as such the defendant No.1 believed the same and did not expect this type of false litigation. By taking advantage of the non-perusal of the revenue documents for mutation, the plaintiff and other legal heirs of Sambaiah with a criminal conspiracy obtained so-called revenue documents and filed this suit which are not binding on defendant No.1, as the revenue records are not conclusive proof when the registered sale deed is available.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 8 of 38
7. Further, the plaintiff and other legal heirs of Sambaiah suppressed the fact of the sale of the entire land, misguided and gave false declarations
before Tahsildar, Chennur and created so-called documents. After receiving
notice in caveat of suit in OS.No.14 of 2017 defendant No.1 started enquires and came to know that the plaintiff and other legal heirs of Sambaiah created documents, as such she immediately approached Tahsildar,
Chennur and came to know that due to software error the existing name of pattedar is automatically reflected in the possession column and summoned the plaintiff and other legal heirs of Sambaiah, explained them about the computer error on 06.05.2017 and informed to the defendant No.1 that said mistake will be rectified. Defendant No.1 also approached RDO, Mancherial and filed an appeal for cancellation of pattedar passbook, title deed of the plaintiff and other legal heirs, the RDO issued notices to the respondents including the plaintiff and it is pending for adjudication. If the plaintiff has any dispute, he should fight with his brothers for his share of sale consideration or proportionate share in their ancestral properties and not with this type of false suit. The plaintiff deliberately showed the boundaries of the entire Ac.5- 26 guntas of land as boundaries of suit schedule property. The plaintiff is well aware of the sale of the entire land to defendant No.1, he also received sale consideration, as such his claim if any is barred by limitation. The plaintiff cannot seek for cancellation of the entire sale deed as the plaintiff’s share is 1/5th and how can he pray for cancellation of the entire sale deed?
Finally, she prayed to dismiss the suit with costs.
8. It is the case of defendants Nos.2, 3 and 5 to 7 that after the death of their father Sambaiah, his sons Kasula Chandra Shekar, defendant Nos.2 to
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 9 of 38
4 and plaintiff succeeded the suit land in the year 1987 and succession was granted in favour of Kasula Chandra Shekar, defendant Nos.2 to 4 and and plaintiff in revenue records and they were in joint possession of the said land. But defendant No.1 approached the plaintiff,defendants Nos.2 to 4 and Kasula Chandra Shekar and requested to execute a sale deed stating that their father Sambaiah sold the suit land to the father of defendant No.1.
Accordingly, on 12.03.2004 defendant Nos. 2, 3 and Kasula Chandra
Shekar/father of the defendant Nos.5 to 7 had executed sale deed bearing
No. 1813/2004, dated 12.03.2004, but the plaintiff and defendant No.4 did not attend the Sub-Registrar Office and they did not execute the sale deed.
Defendant Nos.2, 3 and Kasula Chandra Shekar have not received any sale consideration amount from defendant No.1, at the time of the execution of the sale deed defendant Nos.5 to 7 were majors and they were not having any knowledge about the execution of sale deed.
They further submitted that defendant No.1 is the purchaser of suit schedule land and again they submitted that defendants Nos.2, 3 and the father of defendants Nos.5 to 7 have not sold the suit land to defendant
No.1, but they have executed the sale deed since their father sold the suit schedule land to the father of the defendant No.1 and they have not received any sale consideration amount from the defendant No.1. Finally, they prayed to dismiss the suit with costs.
9. Based on the pleadings of both parties, the following issues were settled for trial on 12.11.2019.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 10 of 38
(I). Whether the suit of the plaintiff is maintainable for the relief of cancellation as he is not the party to the registered sale deed
No.1813/2004 which is under challenge?
(II). Whether the plaintiff is entitled for cancellation of registered sale deed No.1813/2004, dt. 2.03.2004 executed by defendant Nos.2 and 3 and father of defendant Nos.5 to 7 i.e., Buddoju @ Kasula
Dakshina Murthy in favour of defendant No.1 has null and void?
(III). Whether the suit of the plaintiff is barred by law of limitation?
(IV). Whether the plaintiff paid an inadequate court fee?
(V). To what relief?
10. Now coming to the necessary pleadings of both parties in OS.No.14 of 2017 are a follows:
For the plaintiff:-
The plaintiff is the owner and possessor of the land in Sy.No.259/A7 to an extent of Ac.1-05 guntas situated at Chennur village shivar and mandal i.e. suit schedule property. The plaintiff inherited the suit schedule property from his father Late Sambaiah along with his brothers namely Kasula @
Buddoju Chandra Shekar, Kasula @ Buddoju Dakshinamurthy, Kasula @
Buddoju Madhav and Kasula @ Buddoju Vijayamurthy and their names were entered in the revenue records as joint owners and possessors in the pahanies for the years 1988-89, 1998-99, 2010-11, 2011-12, 2012-13, 2013- 14, 2014-15 as joint possessors for the land in Sy.No.259 to an extent of
Ac.5-26 guntas.
Subsequently, on 25.04.2016 there was an oral family partition among the plaintiff and his brothers and said land was divided into five parts i.e.,
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 11 of 38
Ac.1-05 guntas each, the name of the plaintiff entered in the revenue records and also issued pattedar passbooks and title deeds to the plaintiff.
The plaintiff was a Government employee and recently retired from the service at Jagityal of Karimnagar district, he looks after all the properties from Jagityal which is a distance of 50 km, whereas the brothers of the plaintiff are residing at Chennur and with the help of them he looking after the welfare of suit schedule property and other properties.
The defendant, who is also a resident of Chennur village and who is in no way concerned with the suit schedule property, taking the advantage of absence of the plaintiff, she tried to occupy it by disturbing the peaceful possession and enjoyment of the plaintiff. Defendant No.1 and her family members interfered and threatened the plaintiff to leave the suit land by stating that they would occupy the suit land with the help of goons and unsocial elements and created hurdles to ingress and aggress on the suit land. On 14.05.2017 at about 2.00 p.m. the defendant along with some unsocial elements entered into the suit schedule property and threatened to dispossession, as such the plaintiff called the village elders and informed the same to them, the village elders admonished the defendant and her men, with great difficulty the plaintiff retained his possession over the suit schedule property. The plaintiff is a retired employee and 68 years old, he has no much support in the village. Hence, this suit.
11.On receipt of the summons the defendant appeared before the court through counsel and filed her written statement denying the claim of the plaintiff.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 12 of 38
For the defendant:-
It is the case of the defendant that she is the absolute owner and possessor of suit schedule property by virtue of the registered sale deed bearing No.1813/2004, dt. 12.03.2004. In a suit for a perpetual injunction the plaintiff who came with clean hands in this case, the plaintiff suppressed the sale. Therefore, he is not entitled for equitable relief of perpetual injunction, by taking advantage of his signature not there in the sale deed, he filed this suit, if that is the case the plaintiff should approach the civil court of law with a suit of some other nature and not for injunction by suppressing the facts.
12. Further case of the defendant is that however, the defendant already purchased the entire land on the assurance of three elder sons of Sambaiah and if the plaintiff has any dispute he should fight with his brothers for his share of sale consideration and not file this type of false suit. She further submitted that she had purchased the land by paying the entire agreed sale consideration. Therefore, she stepped into the shoes of vendors which means this defendant is a co-owner of the land and an injunction against the co-owner is not maintainable. The plaintiff is well aware of the sale of the entire land in 2001 itself, he also received his share of sale consideration, as such his claim if any is barred by limitation and now he came with a false suit to harass the defendant, if the prayer of the plaintiff is considered the defendant cannot enter into her own land which she purchased through registered sale deed for valuable consideration. Finally, she prayed to dismiss the suit with costs.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 13 of 38
13. Based on the pleadings of both parties, the following issues were settled for trial on 12.11.2019.
(I). Whether the plaintiff is in physical, actual and legal possession of suit land as on the date of filing of the suit?
(II). Whether the plaintiff is entitled for the relief of injunction as prayed for?
(III). To what relief?
Now the issues in both suits are arranged as follows:- (I). Whether the suit of the plaintiff is maintainable for the relief of cancellation as he is not the party to the registered sale deed
No.1813/2004 which is under challenge?
(II). Whether the plaintiff is entitled for cancellation of registered sale deed No.1813/2004, dt. 12.03.2004 executed by defendant Nos.2 and 3 and father of defendant Nos.5 to 7 i.e., Buddoju @ Kasula
Dakshina Murthy in favour of defendant No.1 has null and void?
(III). Whether the suit of the plaintiff is barred by law of limitation?
(IV). Whether the plaintiff paid an inadequate court fee?
(V). Whether the plaintiff is in physical, actual and legal possession of suit land as on the date of filing of the suit?
(VI). Whether the plaintiff is entitled for the relief of injunction as prayed for?
(VII). To what relief?
14.Since the suit in OS.No. 14 of 2017 has clubbed with OS.No.34 of 2017, both parties let their evidence in OS.No.34 of 2017.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 14 of 38
EVIDENCE:
15.To substantiate his case, the plaintiff himself filed his chief affidavit and got marked Ex.A1 to A19. To support the case of plaintiff one Mobin
Mohammad Abdul filed his chief affidavit and was examined as PW-2. To substantiate the case defendant No.1 herself was examined as DW-1 and got marked Ex.B1 to Ex.B27. To support the case of the defendant No.1 one
Pilli Sammaiah filed his chief affidavit and examined as DW-2. The defendants No.2,3 and 5 to 7 did not adduce their evidence.
ISSUE No.(I):
16. The learned counsel for the plaintiff submitted that the suit schedule property in OS.No. 34 of 2017 originally belonged to the father of the plaintiff, after his death the plaintiff along with his four brothersinherited the same and they have been in joint possession by cultivating it. He further submitted that without consent, information to the plaintiff his three brothers namely Dakshina Murthy (Father of defendant Nos.5 to 7), Chandra Shekar (defendant No.2), Madhav (defendant No.3)were executed Ex.A1 in favour of the defendant No.1 for the total land to deprive the plaintiff right and share of Ac.1-05 guntas, his brothers executed Ex.A1, it was a false and fabricated document as it was not executed by all the joint pattedars. Therefore, defendant No.1 will not get any rights over the suit schedule property and
Ex.A1 is liable to be cancelled and prayed for cancellation of Ex.A1.
He further submitted that in the year 2016, the plaintiff along with his brother's partitioned suit schedule property in O.S.No 34 of 2017 and the plaintiff got Ac.1-05 guntas of land as his share, their names were mutated by way of Ex.A14, and they were issued pattedar passbooks and title deeds,
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 15 of 38
since then the plaintiff has been in possession of the suit schedule property in OS.No. 14 of 2017, due to his employment he has been residing at Jagtial and looking after the agricultural lands from there, by taking advantage of false and fabricated sale deed, the defendant No.1 tried to occupy the share of the plaintiff i.e., Ac.1-05 guntas which is the subject matter of OS.No. 14 of 2017. Therefore, the plaintiff is entitled for the permanent injunction to restrain the defendant and finally prayed to decree both suits.
He relied on the judgments of the Hon’ble Apex Court passed in (i)
between Satyanarain Prasad vs. Gadadhar Ram and Ors. AIR 1977 SC
146 and submitted that as the plaintiff major, he and his brothers already married, therefore the contention of plaintiff that he did not know about execution of Ex.B14 by his brothers is not believable. (ii) Padhiyar
Prahladji Chenaji (deceased) through LRs vs. Maniben Jagmalbhai
(deceased) through LRs and Others and submitted that the plaintiff is not entitled for the cancellation of Ex.B14.
17. On the other hand, the learned counsel for defendant No.1 submitted that during the lifetime of her father, he purchased the suit schedule property in OS.No.34 of 2017 from the father of the plaintiff under a simple sale deed, since then her father had been in possession of the suit schedule property till his death, after his death, his wife who is the mother of the defendant No.1 had been in possession of the same by cultivating it, after her demise the plaintiff has been in possession of the entire suit schedule property by cultivating it. The brothers of the plaintiff executed Ex.A1 by receiving the sale consideration and by informing that the part of the sale consideration of
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 16 of 38
the plaintiff and their another brother would be given to them and there would be no problem from them who were not executed Ex.A1. On believing the same the defendant No.1 got Ex.B14/Ex.A1. Therefore, defendant No.1 became owner and possessor of the entire suit schedule property and she has been cultivating the suit schedule property without any interruption.
He further submitted that the plaintiff along with his family members created Ex.A14 by colluding with the revenue officials and started interfering with the possession of the defendant herein who is the bonafide purchaser and in possession of the suit schedule property. The plaintiff or his brothers were never in possession of the suit schedule property, they are no way concerned with the suit schedule property, by taking the false and fabricated revenue records now he is trying to interfere with the suit schedule property.
The plaintiff is never in possession of the suit schedule property, he has never cultivated it, the defendant No.1 is in possession of the suit schedule property. He further submitted that the suit is barred by limitation, and not maintainable when he has sought cancellation of the document for the total extent of land which is not maintainable under the law and finally prayed to dismiss the suit.
18.In order to prove her case the plaintiff relied upon Ex.A1 to Ex.A19.
Ex.A1 is certified copy of registered sale deed bearing No.1813/2004,
dated 12.03.2004 shows that the brothers of plaintiff i.e., Buddoju Chandra
Shekar, Dakshinamurthy and Madhav executed it for the land in Sy.No.259 to an extent of Ac.5-26 guntas in favour of the defendant No.1.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 17 of 38
Ex.A2 is old pattedar passbook of plaintiff for the land in
Sy.No.259/A7 to an extent of Ac.1-05 guntas. Ex.A3 is original title deed of plaintiff for the land in Sy.No.259/A7 to an extent of Ac.1-05 guntas.
Ex.A4 is certified copy of pahani for the year 1998-99 shows the names of Chandrashekar, Madhav, Dakshinamurty, Vamanamurty/ plaintiff and Vijayamurthy as a pattedars and the possession column shown as Swantham.
Ex.A5 is certified copy of pahani for the year 1988-89 shows the name of Buddoju Chandra Shekar, Dakshinamurthy, Madhav, Vamanamurthy and
Vijayamurthy as a pattedars and the name of Kommera Susheela Bai/ mother of the plaintiff shown as possessor.
Ex.A6 to Ex.A10 Meeseva pahanies for falsi years 1420 to 1424 shows the names of plaintiff and his brothers as pattedars and possessors for the land in Sy.No. 259 to an extent of Ac.5-26 guntas.
Ex.A11 and Ex.A12 Meeseva pahanies for fasli years 1425 and 1426 shows the name of plaintiff as a pattedar and possessor for the land in
Sy.No.259/A7 to an extent of Ac.1-05 guntas. Ex.A13 is Meeseva 1-B ROR namuna shows the name of plaintiff as a pattedar and possessor column kept blank for the land in Sy.No.259/A7 to an extent of Ac.1-05 guntas.
Ex.A14 is mutation proceedings bearing No.B/121/2016, dated 03.05.2016 shows about mutation of land in Sy.No.259 to an extent of Ac.5- 26 guntas in favour of plaintiff and his four brothers.
Ex.A15 is notice issued by the RDO, dated 28.06.2017 to the plaintiff in RDO appeal bearing vide RC.No.G/1742/2017. Ex.A16 is Dharani extract pahani along with namuna passbook and 1-B shows the name of plaintiff for
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 18 of 38
the land in Sy.No.259/A7. Ex.A17 is copy of appeal petition filed by the defendant No.1 before the RDO. Ex.A18 is certified copy of order copy of
Special Tribunal in ST No.400/2021/G/1742/2017, dated 08.02.2021 shows that the plea of the defendant for mutation was dismissed.
Ex.A19 is Meeseva pahani for fasli year 1426 shows the name of plaintiff as a pattedar and possessor for the land in Sy.No.259/A7 to an extent of Ac.1-05 guntas.
19.On the other hand, the defendant No.1 relied on Ex.B1 to Ex.B27.
Ex.B1 and Ex.B2 are certified copies of pahanies for the years 1970- 71 and 1973-74 shows the name of Buddoju Sambaiah as a pattedar for the land in Sy.No. 259 to am extent of Ac.5-26 guntas and the name of
Kommera Laxman Rao shown in possession.
Ex.B3 to Ex.B5 are certified copies of pahanies for the years 1984- 85, 1985-86, 1987-88 shows the name of Buddoju Sambaiah as a pattedar for the land in Sy.No.259 to an extent of Ac.5-26 guntas and the name of Kommera Susheela Bai shown in possession column.
Ex.B6 to Ex.B13 are certified copies of pahanies for the year 1988- 89, 2003-04, 2005-06, 2006-07, 2007-08, 2009-10, 2012-13, 2014-15 shows the name of Buddoju Chandrashekar, Buddoju Dakshinamurthy,
Buddoju Madhav, Buddoju Vijayamurthy as a pattedars and the name of
Kommera Susheela Bai (in Ex.B6) and then the name of defendant No.1
shows as possessors.
Ex.B14 isregistered sale deed bearing No.1813/2004, dated 12.03.2004 shows that the brothers of plaintiff i.e., Buddoju Chandra Shekar,
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 19 of 38
Dakshinamurthy and Madhav executed it for the land in Sy.No.259 to an extent of Ac.5-26 guntas in favour of the defendant No.1.
Ex.B15 to Ex.B19 are certified copies of pahanies for the years 1989-90, 1991-92, 1994-95, 1996-97, 1997-98, shows the name of Buddoju
Chandrashekar, Dakshinamurthy, Madhav, Vamanamurthy/Plaintiff,
Vijayamurthy as a pattedars and the name of Susheela Bai shown as possessors for the land in Sy.No.259 to an extent of Ac.5-26 guntas.
Ex.B20 is old Rthyu passbook of the Kommera Susheela Bai.
Ex.B21 and Ex.B22 are Meeseva pahani for fasli years 1425 and 1426 shows the name of plaintiff and his brothers as pattedars for the land mentioned in Ex.A14 mutation proceedings (for the land in Sy.No.259/A1 to an extent of Ac.0-16 guntas shows the name of Kasula Ravinder, s/o.
Chandra Shekar, Sy.No.259/A2 to an extent of Ac.0-15 guntas shows the name of Kasula Santhosh, s/o. Chandrashekar, Sy.No.259/A3 to an extent of Ac.0-15 guntas shows the name of Kasula Sathish, s/o. Chandrashekar,
Sy.No.259/A4 to an extent of Ac.1-05 guntas shows the name of Kasula
Dakshinamurthy s/o. Sambaiah, Sy.No.259/A5 to an extent of Ac.1-05 guntas shows the name of Kasula Madhav s/o. Sambaiah, Sy.No.259/A6 to an extent of Ac.1-05 guntas shows the name of Kasula Vijayamurthy s/o.
Sambaiah, Sy.No.259/A7 to an extent of Ac.1-05 guntas shows the name of plaintiff as a pattedars and the name of defendant No.1 shown as possessor).
Ex.B23 is attested copy of pahani for the year 2017 shows the name of plaintiff and his brothers as pattedars and the name of defendant No.1 shown as possessors for the land in Sy.No.259/A1 to an extent of Ac.0-16 guntas shows the name of Kasula Ravinder, s/o. Chandra Shekar,
Sy.No.259/A2 to an extent of Ac.0-15 guntas shows the name of Kasula
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 20 of 38
Santhosh, s/o. Chandrashekar, Sy.No.259/A3 to an extent of Ac.0-15 guntas shows the name of Kasula Sathish, s/o. Chandrashekar,
Sy.No.259/A4 to an extent of Ac.1-05 guntas shows the name of Kasula
Dakshinamurthy s/o. Sambaiah, Sy.No.259/A5 to an extent of Ac.1-05 guntas shows the name of Kasula Madhav s/o. Sambaiah, Sy.No.259/A6 to an extent of Ac.1-05 guntas shows the name of Kasula Vijayamurthy s/o.
Sambaiah, Sy.No.259/A7 to an extent of Ac.1-05 guntas shows the name of plaintiff as a pattedars and the name of defendant No.1 shown as possessor).
Ex.B24 is certified copy of pahani for the year 2018-19 shows the name of plaintiff and his brothers shown as pattedars and the name of
defendant No.1 shown as possessor for the land in Sy.No.259/A1 to an
extent of Ac.0-16 guntas, for the land in Sy.No.259/A2 to an extent of Ac.0- 15 guntas, for the land in Sy.No.259/A3 to an extent of Ac.0-15 guntas, for the land in Sy.No.259/A4 to an extent of Ac.1-05 guntas, for the land in
Sy.No.259/A5 to an extent of Ac.1-05 guntas, for the land in Sy.No.259/A6 to an extent of Ac.1-05 guntas, for the land in Sy.No.259/A7 to an extent of
Ac.1-05 guntas.
Ex.B25 is dharani extract pahanies for the land in Sy.Nos. 259/A1, 259/A2, 259/A3, 259/A4, 259/A5, 259/A6, 259/A7 shows the names of plaintiff and his brothers. Ex.B26 is encumbrance certificate from 01.01.1995 to 18.03.2023. Ex.B27 is certified copy of Vangmulam, dated 21.05.2017 shows that since 30 years the defendant No.1 cultivating the suit land.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 21 of 38
20. After considering the above pleadings of both parties, oral and documentary evidence of both parties and submissions of both parties, the following facts are not in dispute.
(i). Originally the suit schedule property in OS.No.34 of 2017 belonged to the father of the plaintiff and defendant Nos.2 to 4 namely Kasula @ Buddoju Sambaiah. Then plaintiff and his brother's names were recorded as joint pattedars for the suit schedule property.
(ii). Though defendant No.1 claimed to have purchased the suit schedule property by her father under a simple sale deed, she did not file any document to show the same.
(iii). Defendant No.1 obtained Ex.B14/Ex.A1 sale deed from defendants
Nos.2,3 and the father of defendant Nos.5 to 7, but not from the plaintiff and defendant No.4.
21. The plaintiff contends that the suit schedule property in OS.No. 34 of 2017 originally belonged to his father, after his demise he along with his four brothers inherited the same and their names were entered in the revenue records as joint pattedars and they have been in possession and enjoyment of the suit schedule property. While so, defendant No.1 without the knowledge of the plaintiff having executed Ex.B14/Ex.A1 through defendants
Nos.2, 3 and the father of the defendant Nos.5 to 7, who are brothers of the plaintiff, therefore as it is not executed by him and another brother/D4 though he are joint pattedar, as such, said registered sale deed is a false document and liable to be cancelled. Therefore, he has been seeking relief of cancellation of the registered sale deed under Ex.B14/Ex.A1.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 22 of 38
22. On perusal of Ex.B14/Ex.A1 and even from the contents of the written statement it is not in dispute that the Ex.B14/Ex.A1 has been executed by the defendant Nos.2 ,3 and the father of the defendant Nos.5 to 7 and in favour of the defendant No.1 but not executed by plaintiff. The main contention of the plaintiff is that he has the right and share over the suit schedule property, he got the land of Ac.1-05 guntas in an oral partition along with his brothers and he obtained mutation proceedings under Ex.A14 and he has been in possession. Hence, the Ex.B14 should be cancelled.
23. In order to prove his case the plaintiff himself examined as PW-1. On perusal of his chief affidavit, it is nothing but a replica of the plaint. During the cross-examination, he deposed that in the year 2016, all the agricultural properties of his father were partitioned equally among him and his brothers, registered in their names by way of virasath proceedings and got equal shares in the said partition i.e., each Ac.4-14 guntas.
He further admitted that he had not mentioned about equal
distribution of land among him and his brothers in his chief affidavit
and also his share of land. He admitted that as on the date of filing of
OS.No.14 of 2017, there was no partition among their brothers, as such
he gave boundaries of the total extent of land to an extent of Ac.5-26
guntas but not Ac.1-05 guntas. He further admitted that after filing
OS.No. 14 of 2017 he and his brothers partitioned their land in Sy.
No.259 to an extent of Ac.1-05 guntas each and cultivated the same
separately.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 23 of 38
He further deposed that he did not know that his brothers got
executed Ex.A1 in favour of defendant No.1 as his father already sold
away it and the names of purchasers are not reflected in the revenue
records, to rectify the same Ex.A1 was executed.
The learned counsel for defendant No.1 put one suggestion to the plaintiff/PW-1 that you are not entitled for cancellation of the entire
Ex.A1 as you are only claiming Ac.1-05 guntas, what do you say?
The PW-1 answered that Ex.A1 should be cancelled.
24. Adverting to the main relief sought in OS.No.34 of 2017 is for cancellation of the registered sale deed as his rights would be affected.
It is axiomatic to note that there is no dispute that originally the suit schedule property belonged to the father of the plaintiff, but admittedly the plaintiff failed to file any document to show that there was an oral partition of suit schedule property along with his brothers. To show the partition and allotment of shares and receiving a share in suit schedule property in
OS.No. 34 of 2017, the plaintiff placed no evidence on record to substantiate
his claim.
25. In the light of the circumstances, it is opposite to make note that the plaintiff claiming his right over the suit schedule property but he is a third party to the instrument sought for cancellation of registered sale deed under
Ex.B14/Ex.A1. At this stage it is needless to reiterate the settled
proposition of law that when a person, who is not a party to the
instrument seeks for cancellation of such instrument, primarily he has
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 24 of 38
to file a suit for declaration instead he cannot file a suit for cancellation
of a registered instrument.
26. In this connection, it is worthwhile to refer to the finding of a three bench decision of Hon'ble High Court of A.P. in a case between :
Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors.
reported in 2006 (6) ALT 523
“26. It is a misconception that in every situation, a
person who suffers injury by reason of a document
can file a suit for cancellation of such written
statement. Two conditions must exist before one
invokes Section 31 of Specific Relief Act. These are :
the written instrument is void or voidable against
such person; and such person must have
reasonable apprehension that such instrument if left
outstanding may cause him serious injury. Insofar as
Section 34 of the Specific Relief Act is concerned, it
is no doubt true that a person entitled to any right as
to any property can seek declaration that he is so
entitled to such right. Here again, the person who
claims the right to property can institute a
declaration suit only when the defendant denies or
interested to deny the title of the plaintiff. The
difference between the two situations is glaring. In
one case, cancellation of deed can be sought in a
Court only by a person who executed document and
who perceives that such document is void or
voidable. In the other case, even if a person is not a
party to the document, he can maintain a suit for
declaration.”
27.In view of the above finding, it is clear that cancellation of a deed can be sought only by a person, who executed a document and in case,
the person, who is not a party to the instrument, predicts serious injury
to his right and title over the property because of such instrument, the
remedy left to him is to knock the doors of the court by way of suit for
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 25 of 38
declaration, but he can not seek for cancellation of registered sale
deed.
28. In the light of the above finding, this court is of the considered opinion that the plaintiff being a third party to the registered sale deed bearing
No.1813/2004, dated 12.03.2004 under Ex.B14/Ex.A1 executed by defendant Nos.2, 3 and father of defendant Nos.5 to 7 in favour of the defendant No.1 cannot maintain the suit for cancellation of registered sale deed and in the circumstances the plaintiff is not entitled for the cancellation of registered sale deed under Ex.B14 as prayed for. Accordingly, issue No.
(I) is decided in favour of the defendants and against the plaintiff.
ISSUE No.(II):
29. In view of the conclusion arrived under issue No. (I), consequently, it is inevitable to hold that as the plaintiff is not entitled for the relief of cancellation of the registered sale deed under Ex.B14. Accordingly, issue
No. (II) is decided against the plaintiff.
ISSUE No.(III):
30. The learned counsel for the defendant No.1 argued that both suits are not maintainable as hit by the law of limitation as Ex.B14 was executed in favour of the defendant No.1 on 12.03.2004, the suit was filed in the year 2017. Therefore, the suit is liable for dismissal as hit by the law of limitation.
On the other hand, the learned counsel for the plaintiff submitted
that the plaintiff surprisingly came to know about Ex.B14/Ex.A1 when he received notice under Ex.A15 from RDO, dated 28.06.2017, then only the
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 26 of 38
plaintiff came to know about the execution of sale deed in favour of defendant No.1, he immediately filed both suits. Therefore, both suits are under limitation.
31. As per Article 15 of the Limitation Act, the suit for cancellation of a transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. Therefore, the suit should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable has taken place. In the present case, the Ex.A15 was issued dated 28.06.2017 and the suit in OS.No.14 of 2017 was filed on 17.05.2017 and the suit in OS.No. 34 of 2017 filed on 24.07.2017. Therefore, the contention of the learned counsel for defendant No.1 as both suits were hit by the law of limitation is not tenable. Hence, this issue No.III is answered accordingly.
ISSUE No.(IV):
32. On careful perusal of the plaintiff it shows that the plaintiff paid a court fee under Sec.37(1) of the Andhra Pradesh Court Fee and Suits Valuation
Act, 1956, the amount of Rs.2,546/- for cancellation of the document. On collection of the court fee paid by the plaintiff is sufficient for the relief that he has prayed. Therefore, it can be concluded the plaintiff paid an adequate court fee. Hence, this issue No. IV is answered accordingly.
ISSUE No.(V):
33. In view of the discussion in issue Nos. (I), (II), in the light of forgoing discussions and reasons, it is held that as the plaintiff is not entitled for the
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 27 of 38
relief of cancellation of the sale deed under Ex.B14, the suit is liable for dismissal.
Now coming to the issues in OS. No.14 of 2017.
ISSUE No.(VI):
34. In order to grant perpetual injunction, the plaintiff has to establish that he is in lawful possession and enjoyment of the suit schedule property as on the date of filing of the suit, the defendant invades or threatened to invades the plaintiff’s right to, or enjoyment of suit schedule property.
35.The plaintiff contends that he is in possession of the suit schedule property i.e., Ac.1-05 guntas, he got the suit schedule property as a his share in a partition held with his brothers.
On the other hand, the contention of defendant No.1 is that during the lifetime of her father and mother they were in possession and then she has been in possession of the suit land but the plaintiff was never in possession of the suit schedule property.
In order to answer this issue it is significant to note that the plaintiff claiming the suit schedule land claiming the suit land to be in possession and got the same in an oral partition. The plaintiff failed to produce anyone and also failed to file any scrap of paper to show that there was an oral partition among his brothers and he got suit schedule property. Admittedly, defendants Nos.2,3 and 5 to 7 admitted to the execution of the registered sale deed under Ex.B14/Ex.A1 in favour of defendant No.1.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 28 of 38
It is true that the plaintiff was one of the joint patteddar of entire land in O.S.No.34 of 2017 and the plaintiff has not executed said sale deed but by virtue of ExB14/Ex.A1 the defendant successfully raised cloud over the title of the plaintiff.
36. It is important to refer here about Ex.B1 to Ex.B6, the names of the parents of defendant No.1 shown as possessors and the father the name of the plaintiff is shown as pattedar.
From Ex.B7, Ex.B13, Ex.B15 to Ex.B18 the name of defendant
No.1 is shown as the possessor of the total land in Suit No.34 of 2017.
From Ex.B21 Meeseva pahani for the fasli year 1425 (7 numbers) shows that the plaintiff and his brothers were pattedars of land mentioned in
Ex.A14 virasath proceedings, but in possession column, the name of defendant No.1 shows as possessor.
In the same way the pahanies for the fasli year 1426 the name of plaintiff shows as pattedar for the suit schedule property in OS.No. 14 of 2017, but defendant No.1 shown as possession and also the same with his brothers.
Ex.B23 also shows the same. Ex.B24 is village pahani for the year 2018-19 also shows that the plaintiff's name as a pattedar and the defendant No.1 name as Kasthudar. Ex.B27 is one vangmulam, dated 21.05.2017 shows that defendant No.1 has been in possession of the suit schedule property in OS.No.34 of 2017 for 30 years.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 29 of 38
37. Now coming to the oral evidence of the plaintiff as a PW-1. He deposed that they had not executed a partition deed among their brothers and also had not handed over any document to the Grampanchayath.
He further deposed that in the year 2016, all the agriculture
properties of his father were partitioned equally among his brothers
and registered their names by way of virasath proceedings.
He further admitted that he had not mentioned about equal
distribution of land among him and his brothers in his chief affidavit
and also his share of land.
He admitted that as on the date of filing of OS.No.14 of 2017,
there was no partition among their brothers, as such he gave
boundaries of the total extent of land to an extent of Ac.5-26 guntas but
not Ac.1-05 guntas.
He further admitted that after filing OS.No. 14 of 2017 he and his
brothers partitioned their land in Sy. No.259 to an extent of Ac.1-05
guntas each and cultivated the same separately.
Therefore, the plaintiff took a contradictory version about
partition on one hand by stating that in the year 2016, their agricultural
properties were partitioned among them, but on the other hand he
deposed before the court that after filling the suit in O.S.No. 14 of 2017,
there was partition.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 30 of 38
Thus, the version of the plaintiff about the partition of the suit land in
O.S.No. 34 of 2007 among him and his brothers on 25.04.2016 appears to
be not believable.
The following admissions made by the plaintiff as PW-1 gave
death blow to his claim of interference in to suit land by the defendant
No.1.
It is important to mention the relevant admissions of the PW-1 during the cross-examination, as follows:
The defendant never interfered into the suit land in OS. No. 14 of
2017 on the date of cause of action mentioned by him.
He cannot say the exact date of interference of defendant No.1 in
OS.No. 14 of 2017 but it was in the year 2016 at afternoon hours.
He added that some of the persons (15 members) came and interfered.
He cannot say the names of persons who interfered into the suit
land in OS.No.14 of 2017, he has not filed any criminal complaint
against said 15 members.
He did not have any idea whether his remaining brothers
cultivated their land in the year 2017 by themselves or by given
leases to others.
38.To support the case of plaintiff one Mobin Mohammad Abdul filed his chief affidavit and examined as PW-2. On careful perusal of his chief affidavit is nothing but supporting the case of plaintiff and as that of mentioned in chief of PW-1.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 31 of 38
During the cross-examination by the counsel for defendant No.1, the
PW-2 deposed that in the year 2016 the plaintiff and his brothers got virasath proceedings for their father land and subsequently Chandra Shekar,
Dakshinamurthy and Madhav were executed sale deed in the name of defendant No.1 in the year 2004. He further admitted that said Chandra
Shekar, Dakshinamurthy and Madhav have no shares in the land as they were executed sale deed in favour of defendant No.1. He has not signed
as a witness in the virasath proceedings. He further admitted that
obtaining virasath proceedings in the year 2016 by said Chandra
Shekar, Dakshinamurthy and Madhav is illegal as they already sold
land to the land defendant No.1 in the year 2004. The plaintiff and his four brothers got separate virasath proceedings for each Ac.1-05 guntas.
During the cross-examination by the learned counsel for the defendant Nos.2, 3, 5 to 7 the PW-2 deposed that he has not present in the registration office while transaction under Ex.A1.
39.In order to substantiate her case the defendant No.1 filed her chief affidavit and examined as DW-1. On careful perusal of it, it is nothing but replica of her written statement.
During the cross examination, she deposed that she has not filed
any document to show that her father/Laxman Rao purchased suit
schedule property from father of the plaintiff/Sambaiah. She did not
know the date of purchase of suit schedule property by her father. She added that in the year 1965 her father purchased. She further deposed that
her father was Tahsildar, he discharged his duties in Karimnagar,
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 32 of 38
Warangal and Adilabad districts. She further admitted that her father had knowledge about registration of land purchased by him. She again admitted that neither her mother nor herself tried to got the register the suit land in their name after death of her father from Sambaiah or his sons. She added that the sons of Sambaiah knows about sale transaction in favour of her father.
The DW-1 was further cross examined on 21.04.2023. During the cross-examination, she deposed that she has not filed said simple sale deed mentioned in her chief affidavit under which her father purchased the suit schedule property from the father of the plaintiff.
During the cross-examination by the learned counsel for the defendant
Nos.2, 3, 5 to 7 she denied the suggestion that she has not paid any
sale consideration for Ex.B14 to the vendors mentioned in it and she is
deposing false.
40.To support the case of defendant No.1 one Pilli Sammaiah filed his chief affidavit and was examined as DW-2. He mentioned in his chief affidavit that he is labourer of defendant No.1 purchased land in Sy.No.259 to an extent of Ac.5-26 guntas, defendant No.1 is absolute owner and possessor of said land by virtue of said sale deed, since then she is enjoying the suit schedule property as absolute owner and possessor. He is agriculture labourer and cultivating the said land, he had been working since her late parents to till today, as such she knows the facts. Remaining chief affidavit is more or less to the contents mentioned in written statement and in the chief affidavit of DW-1.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 33 of 38
During the cross-examination, he deposed that he has no land and admitted that he deposing before this court at the request of defendant No.1.
He did not know the sale transaction details for the suit schedule land by the father of defendant No.1 and father of the plaintiff. He added that he cultivated the suit land for 50 years. He admitted that no document was scribed to show that he worked as a agriculture labour for the suit schedule land to the defendant No.1. He has not signed as a witness to the Ex.B14 and also he did not know the sale transactions and consideration for
Ex.B14.
41.The above elicitation from the mouth of Plaintiff, it is clear that the plaintiff is not certain about the interference of the defendant, he stated that the defendant never interfered as on the date of cause of action mentioned in the plaint. Therefore, the contention of the plaintiff about possession of suit schedule property and interference by the defendant No.1 is not believable.
42.Further, it is important to mention here that the plaintiff mainly relied on the revenue documents under Ex.A2, Ex.A3, Ex.A6 to Ex.A14 and
Ex.A16 by stating that he is in possession of the suit schedule property, his name mutated in the revenue records. It is well-settled law that revenue entries will not confer any title. Therefore, the plaintiff cannot claim any right through only Ex.A14, because, the brothers of plaintiff contended that they had executed Ex.B14 in favour of the defendant No.1, then again partition of the land and distributing the shares are appears to not believable.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 34 of 38
43. Further, the plaintiff contended that as he is residing in Jagityal, he has been cultivating the suit land through his brother's, but he failed to examine any one of his brother to prove his version about partition, cultivation of their respected shares and possession of the plaintiff over the suit land.
44.From Ex.A5 it is clear that the name of the mother of defendant No.1
Kommera Susheela Bai is shown as pattedar and Ex.A6 to Ex.A9 which are Meeseva pahanies for fasli years 1420 to 1423 shows the name of plaintiff and his brothers as a pattedars and possessors of the total suit schedule land in OS.No. 34 of 2017.
Ex.A10/Pahani for fasli year 1424 obtained by the plaintiff on
11.05.2017, Ex.A11/Pahani for fasli year 1425 obtained on 12.05.2017
and Ex.A12/Pahani for fasli year 1426 was obtained on 06.05.2017, from
Ex.A10 to Ex.A13 shows the name of the plaintiff as a pattedar and
possessor of the suit land in OS.No. 14 of 2017, but which creates
serious doubt as the Ex.B21/Pahani for fasli year 1425 (7 pahanies)
obtained on 24.05.2017 which clearly shows the name of defendant
No.1 as a possessor.
It is significant to mention here is that, how the same year pahanies i.e., fasli years 1425 and 1426 show the names of plaintiff and as well as defendant No.1 as a possessors for the suit land. Therefore, it
creates doubt about genuineness of the Ex.A10 to Ex.A13, which are
not at all helpful to the case of the plaintiff, there is a force in the
submissions of learned counsel for the defendant No.1.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 35 of 38
45.As discussed above the defendant No.1 successfully raised a cloud over the suit schedule property, when there is a cloud on the title of the plaintiff, the mere suit for injunction is not maintainable. When the suit for declaration and when the suit for injunction is categorized by the Hon'ble
Supreme Court in Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors 1 , it is observed as under:- “11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration,possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An 1. Appeal (civil) 6191 of 2001 decided on 25-3- 2008
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 36 of 38
action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally”.
46.In view of the above discussion as there is a title dispute between the parties, when there is a serious title dispute, the simple suit for injunction is not maintainable. Hence, the issue Nos.VI and VII are answered against the plaintiff.
ISSUE No.(VIII):
47.In view of the discussion in Issue Nos.VI and VII, the suit in OS.No.14 of 2017 is liable to be dismissed.
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 37 of 38
48.In the result, the both suits in OS.No.34 of 2017 and OS.No.14 of 2017 are dismissed, without costs.
Dictated to the steno, transcribed by her and after correction,
pronounced by me in the open court, this the 31 st day of October, 2023.
Sd/-
Junior Civil Judge-cum-
Judicial Magistrate of First Class,
Chennur
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF:
PW-1: Kasula @ Buddoju Vamana Murthy PW-2: Mobin Mohammad Abdul
DEFENDANTS:
DW-1: Srirambhatla Prabhavathi DW-2: Pilli Sammaiah
DOCUMENTS MARKED FOR
PLAINTIFF:
Ex.A1: Certified copy of registered sale deed bearing No.1813/2004, dt.12.03.2004 Ex.A2: Original old pattedar passbook of plaintiff Ex.A3: Original old tile deed of plaintiff Ex.A4: Certified copy of pahani for the year 1998-99 Ex.A5: Certified copy of pahani for the year 1988-89 Ex.A6: Meeseva pahani for fasli year 1420 Ex.A7: Meeseva pahani for fasli year 1421 Ex.A8: Meeseva pahani for fasli year 1422 Ex.A9: Meeseva pahani for fasli year 1423 Ex.A10: Meeseva pahani for fasli year 1424 Ex.A11: Meeseva pahani for fasli year 1425 Ex.A12: Meeseva pahani for fasli year 1426 Ex.A13: Meeseva 1-B ROR, dated 06.05.2019 Ex.A14: Original mutation proceeding bearing No.B/121/2016,
dt. 03.05.2016 issued by the Tahsildar, Chennur
Ex.A15: Original notice issued by the RDO, Mancherial, dt. 28.06.2017 to the plaintiff Ex.A16: Dharani extract pahani along with namuna passbook and 1-B Ex.A17: Copy of appeal petition filed by the defendant No.1 before RDO
JCJ, Chennur
O.S No.34 of 2017 Date:31.10.2023 Page.No. 38 of 38
Ex.A18: Certified copy of Spl. Tribunal in ST.No.400/2021/G.1742/2017,
dt. 08.02.2021.
Ex.A19: Meeseva pahani for fasli year 1426
DEFENDANTS:-
Ex.B1: Certified copy of pahani for the year 1970-71 Ex.B2: Certified copy of pahani for the year 1973-74 Ex.B3: Certified copy of pahani for the year 1984-85 Ex.B4: Certified copy of pahani for the year 1985-86 Ex.B5: Certified copy of pahani for the year 1987-88 Ex.B6: Certified copy of pahani for the year 1988-89 Ex.B7: Certified copy of pahani for the year 2003-07 Ex.B8: Certified copy of pahani for the year 2005-06 Ex.B9: Certified copy of pahani for the year 2006-07 Ex.B10: Certified copy of pahani for the year 2007-08 Ex.B11: Certified copy of pahani for the year 2009-10 Ex.B12: Certified copy of pahani for the year 2012-13 Ex.B13: Certified copy of pahani for the year 2014-15 Ex.B14: Original registered sale deed bearing No.1813/2004, date 12.03.2004 Ex.B15: Certified copy of pahani for the year 1989-90 Ex.B16: Certified copy of pahani for the year 1991-92 Ex.B17: Certified copy of pahani for the year 1994-95 Ex.B18: Certified copy of pahani for the year 1996-97 Ex.B19: Certified copy of pahani for the year 1997-98 Ex.B20: Original old Rythu passbook Ex.B21: Meeseva pahani for falsi year 1425 (7 pages) Ex.B22: Meeseva pahani for falsi year 1426 (7 pages) Ex.B23: Computerized pahanies for fasli year 1427 (7 pages) Ex.B24: Certified copy of pahani for the year 2018-19 (2 pages) Ex.B25: Dharani extract pahanies (7 pages) Ex.B26: Encumbrance certificate from 01.01.1995 to 18.03.2023 Ex.B27: Attested copy of Vangmulam given to the revenue authorities,
dt. 21.05.2017
Sd/-
Junior Civil Judge-cum-
Judicial Magistrate of First Class,
Chennur
JCJ, Chennur