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IN THE COURT OF THE ADDL. CIVIL JUDGE( JUNIOR DIVISION)-CUM- VIII ADDL.
JUDICIAL MAGISTRATE OF FIRST CLASS, GANNAVARAM
PRESENT: Dr.CH.SRINIVASA BABU,
PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-JUDICIAL MAGISTRATE OF FIRST
CLASS: GANNAVARAM
FAC/ADDL.CIVIL JUDGE(JUNIOR DIVISION)-CUM- VIII ADDL.
JUDICIAL MAGISTRATE OF FIRST CLASS, GANNAVARAM
Wednesday this the 7 th day of August, 2024
Original Suit No.83 of 2017
Between: 1.T.Madhava Reddy S/o Adinarayana Reddy, aged about 77 years,
2. T.Chancha Reddy S/o Adinarayana, aged about 72 years, 3.T.Sanjeeva reddy, S/o Nagi Reddy, aged about 59 years, All are R/o of Telaprolu Village,
Unguturu Mandal. ...Plaintiffs
And
Arumalla Venkata Rami Reddy S/o Nagi Reddy, aged about 59 years, R/o Telaprolu Village, Unguturu Mandal. … Defendant
This suit is coming on 24.07.2024 before me for final hearing in the presence of Sri.Ch.Anjaiah, learned Advocate for Plaintiffs 1 to 3 and of Sri A.Venkateswara Rao, learned Advocate for defendant; upon hearing the arguments and having stood over for consideration till this day, this Court delivered the following :
// J U D G M E N T //
01.This is a suit filed by the plaintiffs to declare them as absolute owners of the plaint schedule property for consequential relief of recovery of possession by ejection the defendant from the plaint schedule property, for costs and other reliefs.
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02.The brief averments of the Plaint, in nutshell are that the father of the plaintiffs
T.Adinarayana Reddy had exchanged his property with property of Varahapurapu
Krishtamma and others through Exchange Deed dated 22.04.1952 bearing document
No.919/1952 for an extent of 1600 Sq. yards, which was succeeded by the plaintiffs, after the death of their father, which includes the plaint schedule property out of an extent of 706 ½ Sq.yards which is left, after disposing off the remaining extent. The defendant is having house site opposite to the site of the plaintiffs, taking advantage of the political rivalry between the plaintiffs and the defendant, he could manipulate tax receipts in his name and entered into the property, at that time, the defendant was allowed to stay in the plaint schedule property covering in an extent of 100 Sq.yards wherein a single post round dwelling thatched hutment with two rooms and lavatory facility of the plaintiffs, which was used by the defendant ever since there is compound wall constructed by Kagga Rama Rao on Southern side of the plaint schedule property and the remaining vacant site to the East and North of the plaint schedule property is vacant and the entire site belongs to the plaintiff and they have stocked quarry stones for construction of compound walls and for necessary structures. From the year, 1993 the thatched house was in existence in which the defendant was permitted by the plaintiffs to reside. A plan is filed to place existing physical features before the Hon’ble Court, taking advantage of goodness and weakness of the plaintiffs, the defendant having money and muscle power had filed to the suit in O.S.
No.74/2001(2009) on the file of Junior Civil Judge, Gannavaram seeking declaration by way of adverse possession over the plaint schedule property and for consequential relief of the said suit and the same was dismissed on 07.04.2007, aggrieved by the said orders the defendant had preferred an Appeal in A.S No.203/2010 in old A.S.No.37/2007 on the file of Hon’ble XI Additional District Judge Court, Gudiwada and the said appeal was also dismissed on 04.12.2012 by confirming the decree and Judgment passed, on the said
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order, the defendant had filed second Appeal S.A. No.215/2013 on the file of Hon’ble High
Court of Andhra Pradesh at Hyderabad and the said appeal was dismissed on 25.10.2016, the defendant having not satisfied had filed Caveat dated 03.02.2017 by suppressing the real facts of the proceedings, inspite of several demands made by the plaintiffs to vacate and hand over the vacant possession of the plaint schedule property, the defendant was reluctant, as such the plaintiffs were constrained to file the suit.
3.On the other hand, the defendant has filed his written statements denying the contents of the plaint and further added that the defendant is absolute owner of the plaint schedule property along with other property since the year, 1961 and he is the absolute owner of total extent of 580.8 Sq.yards house site and structure and that he along with his ancestors had been in possession and enjoyment of the plaint schedule property along with other properties by paying tax to the Government. The revenue records clearly shows that the defendant is absolute owner of the plaint schedule property and he is paying Electrical consumption charges to the APSPDCL in the name of the defendant. The plaintiffs are no way concerned with the plaint schedule property and they have no right, title, interest or possession for the same and they have suppressed the real facts and created a story and filed the suit with false allegations and the suit is not maintainable and the same liable to be dismissed and the plaintiff had filed the suit to gain wrongfully and that there is no cause of action for filing the suit and the suit is not maintainable and the same is liable to be dismissed.
04.Basing on the above pleadings the following issue are settled for the purpose of trial :-
1.Whether the plaintiffs are entitled to declare as the absolute owner of the plaint schedule property?
2.Whether the plaintiffs are entitled for the relief of recovery possession of plaint schedule property by ejection of the defendant?
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3To what relief?
05. On behalf of the plaintiffs, P.W1 was examined and Exs.A.1 to A.13 were marked.
On behalf of the defendant D.Ws 1 to 3 were examined and Exs.B.1 to B.5 were marked.
06. Heard arguments of both sides.
07. The learned counsel for the plaintiffs had argued that the plaintiffs are the absolute owners of the plaint schedule property and they have acquired the same in view of
Exchange Deed under Ex.A.1 and the plaintiffs being legal heirs of T.Adinarayana Reedy had been in possession and enjoyment of the said property. Out of 1600 sq.yards of the property an extent of 706 Sq.yards was left and the plaint schedule property is part of 1600
Sq.yards and the defendant was allowed to stay in the plaint schedule property, taking advantage of the same he claimed right over the plaint schedule property and filed the suit in O.S. No.74/2001 as if he was absolute owner of the property by adverse possession, however he failed to establish the same and the suit was dismissed vide judgment and decree under Ex.A.8 and the appeal, which was preferred by the defendant was dismissed under Ex.A.9 and the second appeal was also dismissed under Ex.A.10. The defendant without having any right over the plaint schedule property had filed Caveat under Ex.A.11 by suppressing the proceedings under Ex.A.7 to A.9. The defendant is under obligation to handover the possession of the plaint schedule property in pursuance of judgment and decree under Ex.A.8, the defendant without having any right over the plaint schedule property had claimed right over the same. Exs. B.1 to B.5 are no way related to the plaint schedule property and the same cannot be taken into consideration. There are several admissions in the evidence of D.W.1, which reveals that the plaint schedule property is part of property belongs to T.Adinarayana Reddy and that the defendant has failed to vacate the plaint schedule property inspite of dismissal of the suit. The evidence of D.Ws.1 to 3 will
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not help the case of the defendant, as the plaintiffs are able to establish that they got absolute right over the plaint schedule property and they are able to establish their right, title over the plaint schedule property, as such they are entitled for relief claimed. Though the learned counsel for defendant has argued that the suit was barred by limitation, however, the limitation starts from the date of disposal of second appeal under Ex.A.10 on 25.10.2016 and the plaintiffs have filed the suit within the period of limitation and that the plaintiffs are entitled for relief claimed and prayed the court to pass the decree in their favour.
08.On the other hand, the learned counsel for the defendant has argued that the defendant is the absolute owner of the plaint schedule property and had been in possession and enjoyment of the same, evidencing his possession the documents under
Exs B.1 to B.5 were marked. The plaintiffs without having any right over the plaint schedule property have filed the suit and that the documents relied upon by the plaintiffs are no way related to the plaint schedule property and the same can not be taken into consideration, the plaintiffs have suppressed the facts and have approached the court and the suit is not maintainable. The defendant along with his daughter have executed registered partitioned deed under Ex.B.2 and the house was mutated in the name of the daughter of Nirmala and had been paying taxes. The plaintiffs having took the plea in the written statement in O.S.
No.74/2001 that the defendant herein was allowed to stay in the plaint schedule property have filed the suit for relief of declaration and recovery of possession. Though the plaintiffs have pleaded their right, title and possession over the plaint schedule property, the suit filed by the plaintiffs is barred by limitation and that the plaintiffs have approached the court with unclean hands and they are not entitled for relief claimed. Except, P.W.1 none of the witness was examined on behalf of the plaintiffs and P.W.1 had admitted that he has not filed any record to show that the plaint schedule property is in his possession and that
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there is no revenue or panchayat records pertaining to the property covered in an extent of 706 Sq.yards. The defendant is able to establish his right and possession over the plaint schedule property. D.Ws 1 to 3 who were examined on behalf of the defendant have categorically deposed before this court about the possession and enjoyment of the defendant over the plaint schedule property, as such the suit is not maintainable and the suit is liable to be dismissed.
09. ISSUE No.1:
In a suit for grant of declaration the plaintiffs have to prove that they got right over plaint schedule property on the documents, which they relied upon and that the plaintiffs have got valid and perfect title over the plaint schedule property. The relief of declaration is governed by Section 34 of Specific Relief Act 1963, it is clear that the plaintiffs shall have right over the property or they shall have any legal character then only they can institute a suit against a person denying or interested to deny their right to such property. In other words a declaratory decree is not a new right that will confer to a person and the plaintiffs incidentally shall have right, once their right is denied i.e., to say that there was a cloud or mist covered around the title of the plaintiffs, the court clears cloud or mist and passes a declaratory decree in favour of plaintiffs, as such it is for the plaintiffs to establish that they have right over the plaint schedule property and that the defendant is taking away their right over the plaint schedule property.
The Hon'ble Supreme Court of India was pleased to clarify the meaning of the dispute to the title or a cloud over the title, in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by
LRs. And others, AIR 2008 Supreme Court 2033, wherein the Hon'ble Apex Court at
Para No.12
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“We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiffs title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title. When some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud to the title to the property.”(Underline is mine)
So, according to the above settled principles of law laid down by the Hon'ble Apex Court, it is for the plaintiffs to establish that they have title over the plaint schedule property and the defendant without having any title, had been interfering into their possession and enjoyment over the plaint schedule property.
10.The claim of the plaintiffs is that the plaint schedule property was acquired by the father of the plaintiffs 1 and 2, T.Adinarayan Reddy under Exchange Deed among their father and V.Kristamma and others bearing document No.919/1952, dated 22.04.1952, after the death of T.Adinarayana Reddy the plaint schedule property, which is part of the property in an extent of 706 ½ Sq.yards was left, after dispossessing of the remaining extent and the same is in possession and enjoyment of the plaintiffs and the defendant was allowed to stay in the plaint schedule property, which is single post round dwelling thatched hut and that the defendant has failed to vacate the same and claiming right over the same as such the suit was filed. As the plaintiffs have filed the suit for relief of declaration they have to prove that they got right and legal character over the plaint schedule property. To substantiate the case of the plaintiffs P.W.1 was examined and Exs.
A.1 to A.13 were marked.
11.The plaintiffs herein have pleaded that T.Adinaraya Reddy who is father of plaintiffs 1 and 2 have acquired the plaint schedule property covered under Ex.A.1 by way of
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Exchange Deed and that the property under Ex.A.1 is part of the plaint schedule property and the defendant was allowed to the stay in the plaint schedule property. The claim of the plaintiffs was that the thatched hutment was in existence from the year, 1993 in which the defendant was permitted to reside. The plaintiffs herein have stated about filing of suit in
O.S. No.74/2001 by the defendant on the ground of adverse possession and claimed right
over the property covered under the said suit and the same was dismissed on 07.04.2007 under Ex.A.8. The learned counsel for the defendant had argued that the suit is barred by limitation as the plaintiffs have got knowledge that the defendant herein had disputed the title of the plaintiffs over the plaint schedule property having filed this suit in O.S.
No.74/2001 under Ex.A.6. The defendants in the said suit and the plaintiffs herein have filed written statement under Ex.A.7. On perusal of the same at para No.9 at page No.5 of the written statement it was averred that “it is submitted that the plaintiff is allowed to stay in the schedule property on its West about 1/3rd in extent to enjoy with permission as it happens to be vacant and the remaining 2/3rd extent on its East and entire extent on the
North is exclusively under possession and enjoyment of the defendants and their family members by keeping hayrick, dung heap and other wooden material dried trees and hill stones etc.”, further, it wasaverred that “ From about one year the defendants and their family membersare demanding the plaintiff to vacate and hand over possession of about 100 Sq.yards, which is under his occupation in which there used to be thatched shed and hutment etc., is situated as remaining extent to its East and North was already under the possession and enjoyment of the defendants and their family members. The plaintiff is allowed to continue to enjoy the above said 100 Sq.yards in which thatched house hutment etc., are there from about Six or seven years and as it is with permission, the question of adverse possession does not arise”. In view of the recitals in the written statement in O.S. No.74/2001 on the file of this court by the plaintiffs herein it reveals that
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prior to filing of this suit, the defendant herein was in possession and enjoyment of the plaint schedule property, which is in dispute.
12.The suit in O.S. No.74/2001 was filed by the defendant herein claiming right over the plaint schedule property along with other property on the ground of the adverse possession, as such on the date of filing the written statement filed by the plaintiffs herein on 11.09.2001 they got knowledge, that the defendant herein had disputed the title of the plaintiffs over the plaint schedule property, however, the suit is filed by the plaintiffs in the year, 2017. As the plaintiffs herein have filed the suit for relief of deceleration, it is for them to establish that they got right, title and possession over the plaint schedule property and it is for them to establish the same and have to place authenticated evidence before this court that they have right, title and legal character over the plaint schedule property. The plaintiffs herein have relied upon Exs. A.1 to A.3 to establish their right, title and possession over the plaint schedule property. The plaintiffs herein have relied upon Ex.A.2, which is said to be sale deed executed by T.Adinarayana Reddy, on perusal of the same the sale deed was for the property in an extent of 591 Sq.yards and there was no reference of the exchange deed under Ex.A.1. On perusal of Ex.A.2 the recitals are that the said
T.Adinarayana Reddy had sold the vacant site as the same was not fit for his usage and there was no recitals that the property, which was acquired by him under Ex.A.1 was sold.
Ex.A.3 is another sale deed executed by T.Adinarayana Reddy in favour of K.Venkata
Rama Rao. On perusal of the same the sale deed is for the property covered in an extent of 302 ½ Sq. yards, on perusal of the recitals of Ex.A.3 there was no reference of Ex.A.1.
On perusal of ‘A’ schedule of Ex.A.1 it reveals that the property situated in Telaprolu Village covered in an extent of 1600 Sq. yards was Exchange Deed with the property covering in an extent of 1210 Sq. yards. In Ex.A.2 Door No.4-93 was refereed by the father of the
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plaintiffs and in Ex.A.3 the property was shown in R.S No.1292 of Grampanchayat
Telaprolu Village in Gramakantam.
13.The plaintiffs herein have pleaded that the plaint schedule property consists of single post around dwelling thatched hutment with Door No.4-64. On perusal of the documents filed on behalf of the plaintiffs and the documents, they have not filed any document before this court that there is house in the plaint schedule property in Old Door
No.4-64 and new Door No.5-84. The plaintiffs herein have pleaded that they have allowed the defendant to stay in the plaint schedule property and the said hut was in existence since the year, 1993 if it is so, the plaintiffs certainly might have filed any documentary proof before this court to show that there is house with Door No.4-64. P.W.1 in his cross examination has deposed that “I have not filed any other Revenue record or Grama panchayat record into the court, in support of my case. The plaint schedule property is about 100 Square yards. My total land is about 700 Square yards. I have no Revenue record and panchayat record in respect of the said 700 Square yards of land to show and it belongs to me as it is vacant site. I have not filed any document to show my possession over 100 Square yards.”
The evidence of P.W.1 reveals that the plaintiffs have not filed any revenue record or panchayat record before this court to establish that the plaint schedule property is in their possession and they have got right, title over the plaint schedule property consists of single post around dwelling thatched hutment. On the other hand, P.W.1 has deposed that 700
Squareyards of land is vacant site, the plaintiffs have pleaded that the defendant was allowed to stay in the plaint schedule property in Para No.3 of the plaint, however, P.W.1 has denied the same in his cross examination that “It is true, the avarement made in Para
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No.3 of my chief affidavit that the defendant was allowed to stay in the plaint schedule property is false.
14.P.W.1 has denied the suggestion that prior to filing of suit also, Vinatha Nirmala and
Gangupenta Vijaya are in possession of the plaint schedule property. P.W.1 has deposed that he had not added them as parties to the present suit as the property is in his possession. The plaintiffs herein have filed the suit for recovery of possession, however, the evidence of P.W.1 is that they were in possession and enjoyment over the plaint schedule property. The plaintiffs herein have filed the suit that they are absolute owners of the plaint schedule property and had got right, title and possession, however they have not placed any authenticated documentary proof to establish that they have absolute right over the same . Except, Ex.A.2 and A.3 the plaintiffs have not filed any other documents before this court to show that the plaint schedule property and the property under Ex.A.1 are one and the same, however as discussed supra the said documents are not co-relating to
Ex.A.1.
15.The plaintiffs herein have relied upon the judgment and decree in O.S. No.74/2001, however, the said suit property in covered in an extent of 358Squre yards and the said suit was dismissed by giving findings that :
“ Merely because the defendants failed to prove the permissive possession of the plaintiff over 100 Sq.yards of plaint schedule site on West, if does not ipso facto establish the right and title of the plaintiff over the entire plaint schedule, mere possession of the plaintiff, however, long period in the absence of documentary evidence do not establish his right and title over the plaint schedule when the defendants are vehimently denying his right and title. Therefore, there is no force in the contention of the learned counsel for the plaintiff in this regard.”
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Further another finding was given that “The defendants also failed to establish that the plaintiff is in permissive possession of 1/3rd extent of plaint schedule or they are in possession and enjoyment of the remaining 2/3rd extent of plaint schedule”. In view of the findings given by this court in O.S. No.74/2001 dated 07.04.2007 under Ex.A.8, the plaintiffs herein have got knowledge that they failed to establish that they were given permissive possession and that they were in possession and enjoyment of remaining 2/3rd extent of the plaint schedule property, however, the plaintiffs have not raised their little finger regarding findings given by this court in the said suit, as such Exs. A.8 to A.10 will not help the case of the plaintiffs. The plaintiffs who approached the court for the relief of declaration have to establish that they have got right, title and possession over the same by placing authenticated evidence and they are not expected to rely upon the strength or weakness in the case of defendant, which was help by the Hon’ble Apex Court in Union of
India (UOI) and Ors., Vs. Vasavi Co-Op. Housing Society Ltd., and Ors., (AIR 2014 SC
937) that “The plaintiff has to succeed only on the strength of his case and not upon the weaknesses of the case set by the defendants in a suit for declaration and possession and the initial burden lies upon the plaintiff to establish his case, if the evidence let by the defendants in support of their case probablises the case set by the plaintiff, such evidence cannot be ignored and kept out of the consideration.”
16.The plaintiffs who approached the court have to establish their case and the plaintiffs have to prove the bundle of facts on which they are relying, so as to succeed their claim. In this regard the Hon’ble Apex Court in Om Prakash Srivastava Vs. Union of
India and another, 2006 (6) SCC 207, was pleased to held that:
“It means every fact, which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a
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bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit.”
In view of the findings given by the Honourable Apex Court as the suit filed by the plaintiffs is for the relief of declaration, it is for them to establish their title over the property and the plaintiffs who failed to establish their title and possession over the property are not entitled for the relief of declaration, which was held by the Honourable Apex Court in Maria
Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead)
through L.Rs. (AIR 2012 SC 1727), at para Nos. 61 to 64.
61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question.
62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner.
63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.
64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts.
Further in Smiriti Debbarma (dead) through L.R vs. Prabha Ranjan Debbarma in 2022 Livelaw (SC) 19 the Hon’ble Apex Court was pleased to held at para Nos.30 and 31 –
30. In the above factual background, for the plaintiff to succeed, she has to establish that she has a legal title to the Schedule ‘A’ property, and
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consequently, is entitled to a decree of possession. The defendants cannot be dispossessed unless the plaintiff has established a better title and rights over the Schedule ‘A’ property. A person in possession of land in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner. A decree of possession cannot be passed in favour of the plaintiff on the ground that defendant nos. 1 to 12 have not been able to fully establish their right, title and interest in the Schedule ‘A’ property. The defendants, being in possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession.
31. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief. This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed. Thus, the impugned judgment by the High Court had rightly allowed the appeal and set aside the judgment
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and decree of the trial court. We, therefore, uphold the findings of the High Court that the suit should be dismissed. We clarify that we have not interfered or set aside any observations of the High Court in re the Tripura Land Revenue and Land Reforms Act, or defendants’ claim etc. Notably, M/s. Hotel Khosh Mahal Limited is not a party to the present proceedings.
In view of finding given by the Hon’ble Apex Court and the discussed supra, the plaintiffs who approached the court for grant of declaratory decree have to establish their case by adducing sufficient evidence and to discharge the onus and the plaintiffs are not expected to depend upon weakness of the defendant. Unless the plaintiffs establishes their title by cogent and satisfactory evidence by approaching the court with unclean hands, this court can’t pass orders in favour of the plaintiffs for grant of relief of declaration.
17. The learned counsel for the plaintiffs has relied upon the cross examination of P.W.1 and argued that the defendant himself has admitted that after execution of Sale deed under Exs A2 and A3 the remaining plaint schedule property, as such in view of the admissions of the defendant the court may take into consideration of the said admission, however, the case of the plaintiffs is not that the plaint schedule property is covering in an extent of 706 ½ Sq.yards and have pleaded in the plaint, that the plaint schedule property is in an extent of 100 Sq.yards, as such the admission of D.W.1 will not help to the case of the plaintiffs and the plaintiffs who approached the court for relief of declaration have to establish their right, title and possession of the plaint schedule property. As discussed supra, in view finding given in Union of India (UOI) and Ors., Vs. Vasavi Co-Op. Housing Society Ltd., and Ors., as the plaintiffs have approached the court with unclean hands as such this Court cannot exercise discretion in favour of the plaintiffs for grant of relief of declaration of title.
18.Further, the learned counsel for defendant has argued that the suit is barred by limitation, on the sole ground it self the suit is liable to be dismissed. On the other hand, the learned counsel for the plaintiffs has argued that the defendant had not took such plea in the written statement and that the suit is within the period of limitation as such the plea of defendant has no legs to stand. It has to be verified by this court whether the plea of limitation may have been said to be as a defence, whether without taking such defence and
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the same cannot be taken into consideration. Section 3 of Limitation Act laid down that every suit instituted, appeals preferred are made after prescribed period shall subject to the provisions of Sections 4 to 24 of the Act, if the same are not within the period of limitation they may be dismissed even though limitation may not be have said to be as defense.
Section 3 of Limitation Act: Bar of limitation.—(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act,— (a) a suit is instituted,— (i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted—
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
Article 58 of Limitation Act, 1963 : The period of limitation to file a suit to obtain any other declaration is three years from the date when the right to sue first accrues.
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The period of limitation to filed a suit to obtain any other declaration is three years from the date of when the right to suit first accrues under article 65 of Limitation Act for the purpose of immovable property.
Article 65 of Limitation Act, 1963 : For possession of immovable property or any interest therein based on title.
Explanation.—For the purposes of this article—
(a)where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession - period of limitation is Twelve years, when the possession of the defendant becomes adverse to the plaintiff.
19.On perusal of written statement field by the plaintiffs herein in O.S. No.74/2001 under Ex.A.7 on 11.09.2001, the plaintiffs have got knowledge that the defendant has denied the title of the plaintiffs. However, the plaintiffs herein has filed the suit on 31.07.2017, if the recitals of Ex.A.7 are taken into consideration, the period of limitation to file the suit will start on or prior to 11.09.2001 from the date of receipt of summons in O.S.
No.74/2001 when right to suit was occurred, however, the suit was filed after laps of 16 years, if the limitation under Article 65 of Limitation Act is taken into consideration, the plaintiffs have to file the suit by 11.09.2013, however, the plea of the plaintiffs is not that the possession of the defendant becomes adverse to the plaintiffs for considering the limitation under Article 65 of limitation Act and the suit will not come under Article 50 of limitation Act. Whether the plea, which was took by the plaintiffs in the written statement filed by them in O.S. No.74/2001 can be taken into consideration has to be decided by this court, so also regading the period of limitation, in this regard, the Hon’ble Apex Court in
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Kalthi recitals Private Ltd., and others Vs Union Bank of India Private Ltd and others (AIR 2011 SUPREME COURT 3590) at Para No 21,22, 25, to 28 30 was pleased to held that
21. The Limitation Act, 1963 (for short, `the 1963 Act') prescribes time limit for all conceivable suits,appeals etc. Section 2(j) of that Act defines the expression "pe- riod of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 3 lays down that every suit instituted, appeal preferred or application made after the prescribed period shall, subject to the pro- visions of Sections 4 to 24, be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article. In other words, the residuary article is appli- cable to every kind of suit not other wise provided for in the Schedule.
22. Article 58 of the 1963 Act, which has bearing on the decision of this appeal, reads as under:"THE SCHEDULE PERIODS OF LIMITATION [See sections 2(j) and 3] FIRST DIVISION - SUITS Description of suit Period of Time from which, limitation period begins to run PART III - SUITS RELATING TO DECLARATIONS
25. Article 120 of the 1908 Act was interpreted by the Judicial Committee in Mt. Bolo v. Mt. Koklan AIR 1930 PC 270 and it was held: "There can be no `right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least, a clear or unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."
26. The same view was reiterated in Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar (1930) I.L.R. 8 Rang. 645 and Gobinda Narayan Singh v. Sham Lal Singh (1930-31) L.R. 58 I.A. 125. In Rukhmabai v. Laxminarayan (supra), the three-Judge Bench noticed the earlier judgments and summed up the legal position in the following words: "The right to sue under Article 120 of the 1908 Act accrues when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective or in- nocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compul-
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sory cause of action depends upon the question whether that threat effectively in- vades or jeopardizes the said right."
27. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word `first' has been used between the words `sue' and `accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive vi- olation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.
28. In the light of the above, it is to be seen as to when the right to sue first ac- crued to the appellants. They have not controverted the fact that in the written statement filed on behalf of the DDA in Suit No.2576 of 1990-Lal Chand v. MCD and another, it was clearly averred that the suit land belonged to Gaon Sabha and with the urbanization of the rural areas of village Kishangarh vide notification dated 28.5.1966 issued under Section 507 of the DMC Act, the same automatically vested in the Central Government and that vide notification dated 20.8.1974 is- sued under Section 22(1) of the DD Act, the Central Government transferred the suit land to the DDA for development and maintaining as Green. This shows that that the right, if any, of the appellants over the suit land stood violated with the issue of notification under Section 507 of the DMC Act and, in any case, with the issue of notification under Section 22(1) of the DD Act. Even if the appellants were to plead ignorance about the two notifications, it is impossible to believe that they did not know about the violation of their so- called right over the suit land despite the receipt of copy of the written statement filed on behalf of the DDA in Decem- ber, 1990. Therefore, the cause of action will be deemed to have accrued to the appellants in December, 1990 and the suit filed on 14.2.2000 was clearly barred by time.
30. While considering the question whether the suit was barred by time,the trial Court noticed the averments contained in paragraphs 9 and 10 of the plaint that uring the course of preparation of the trial of Suit No.2576/1990 - Lal Chand v. MCD and another, the appellants applied for a copy of Khasra Girdawaris of the suit land and they were shocked to learn that the revenue records have been in-
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correctly maintained and they were neither shown as owners/bhumidars nor in possession of the suit land, referred to the pleadings of the suit filed by appellant No.2 – Lal Chand in 1990 and observed; "Therefore, as per the pleadings that the cause of action accrued when ac cording to plaintiff he applied for the copies of the Khasra Nos which was in Nov.-Dec, 1998 during the course of trial in the earlier suit. This claim of the plaintiff however does not appear to be factually correct. It is evident from the judgment dated 03.03.2003 that the detailed written statement had been filed by the DDA before the Ld. Civil Judge when the suit filed by Lal Chand Plain- tiff No.2 on 18.08.1990 wherein the DDA had specifically pleaded that the land form part of Khasra No.2728/1674/2 & 2728/1674/3 situated in the revenue estate of village Kishangarh, Teh Mehrauli, New Delhi and the urbanization of village Mehrauli, all the Gaon Sabha land vested in the central govt, but later on trans- ferred this land at the disposal of the defendant DDA for development and mainte- nance as green, vide notification dated 20.08.1974 and the plaintiff has no right, ti- tle or interest over the suit land. It was further pleaded that the plaintiff had wrongly and unauthorizedly occupied the land and constructed the boundary wall along with three temporary room which construction was unauthorized and it was denied that the suit property existed for the last 16 years. It is further evident from the said judgment that after the plaintiff filed the replication continuing the afore- said is sue were framed by the Ld. Civil Judge on 11.03.1997. This being so, it is unbelievable that the date of knowledge by the plaintiff was of Nov-Dec, 1998. Rather the plaintiffs were fully aware of the land being at the disposal of the DDA from the proceeding in suit No.211/02/90 when the DDA filed its written statement when the limitation started to run more so as the plaintiff No.2 had also filed replication continuing the aforesaid and therefore as per theprovisions of the limitation act, Article 58 of the schedule, challenging to the same should have been made within the period of limitation which is within 3 years from the date of knowledge and limitation which has started running, it is not extended by the plain- tiff by obtaining certified copy or by giving notice to the defendants. This suit which has been filed only on 11.02.2000 is clearly not within the period of limitation of 3 years from the date when the DDA filed its written statement in suit No.211/02/90 and the plaintiff No.2 is first assumed to have acquired knowledge and in attempt
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to coverup this delay the plaintiff is trying to falsely create the cause of action in Nov- Dec, 1998 attributing the advantage as during the trial when he applied for the copies of the revenue record despite the fact that the period of limitation started to run when the written statement was filed by DDA to which the plaintiff No.2 filed replication pursuant to which the issue framed was,whether the plaintiff has any legal rights to file the present suit. This being the case, I hereby held that the present suit is clearly beyond the period of limitation and I decide the issue No.3 against the plaintiff.”
18.In view of the findings given by the Hon’ble Apex Court, in view of the recitals under Ex.A.7 it was clearly averred that the plaintiffs herein have got knowledge about the loosing of the possession over the plaint schedule property and that the right of the plaintiffs over the plaint schedule property was disputed, however, the plaintiffs have failed the suit on 31.07.2017 by claiming cause of action from the date of receipt of Caveat petition under Ex.A.11, as such this court is of the considered opinion that the plaintiffs herein have filed this suit beyond the period of limitation, hence, the suit is barred by limitation. As discussed supra, not only the suit is barred by limitation and also the plaintiffs who approach the court for relief for deceleration have failed to establish the same and the plaintiffs have not placed any cogent and satisfactory evidence before this court as such they are not entitled for the relief claimed. The Honourable High Court of Judicature at Hyderabad, in P. John Nelson Vs. V. Benjamin, 2016 (6) ALT 17 was pleased to held at para number 24
24. The relief of declaration is purely discretionary under section 34 of the Act of 1963. Unless the plaintiff established his title by cogent and satisfactory evidence approaching Court with clean hands, the Court cannot exercise such discretion in favour of the plaintiff to grant such relief of declaration of title. Here, the plaintiff’s contention initially was based on a will allegedly executed by Moses, father of the plaintiff, but later the plaintiff changed his version contending that he was granted
Ex.A.4 patta and claiming title over the property. Therefore, the plaintiff both in evidence and pleadings and registered correspondence between the parties admitted about title of his father directly but now set up a different claim that he property was classified as Hill Poramboke and the
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property was assigned to him under Ex.A.4. Thus, the plaintiff did not approach the Court with clean hands and suppressed several facts obviously for different reasons known to him. In such case, the plaintiff is disentitled to claim equitable and discretionary relief under Section 34 of the Act of 1963 as he did not approach the Court with clean hands.
Hence, I find no illegality or irregularity warranting interference of this
Court with the decree and judgment of the trial Court. Consequently, the finding of the trial Court is hereby confirmed holding this point in favour of the defendants and against the plaintiff.
In view of the discussion supra and the finding given by the Hon’ble High Court of
Andhra Pradesh as the plaintiffs have approached the court with unclean hands as such this Court cannot exercise discretion in favour of the plaintiffs for grant of relief of declaration of title and the suit is liable to be dismissed . Accordingly, issue is answered.
19. ISSUE Nos.2 and 3:
In view of discussion supra in Issue No.1 though the plaintiffs have failed the suit for declaration and recovery of possession they have failed to establish their right, title over the plaint schedule property and the plaintiffs have approached the court with unclean hands. The law is well settled that they who come for equity must do equity and they, who comes to the Court with unclean hands and suppressed the material facts and take inconsistent stand and prevaricates and failed to establish their case is liable to face the consequences, as such the plaintiffs are liable to pay the costs of the suit and the suit is liable to be dismissed. Accordingly, the issue is answered.
20. In the result, the suit is DISMISSED. With costs.
Dictated to the Stenographer, transcribed by him, corrected and pronounced by me
in open court this the 7th day of August, 2024.
PRL. CIVIL JUDGE(JUNIOR DIVISION)
-CUM-JUDICIAL FIRST CLASS MAGISTRATE,
GANNAVARAM
FAC/ADDL. CIVIL JUDGE (JUNIOR DIVISION)
-CUM-VIII ADDL.JUDICIAL FIRST CLASS
MAGISTRATE,GANNAVARAM
OS No.83/2017, Dt.07.08.2024 23 ACJ (J.D) VIII JFCM/GVM
APPENDIX OF EVIDENCE
Witnesses Examined
FOR PLAINTIFFS: FOR DEFENDANT: P.W.1: T.Madhava Reddy D.W.1: A.Venkata Rama Reddy D.W.2: V.Seemannarayana Reddy D.W.3:D.Srinivasa Reddy
DOCUMENTS MARKED FOR
FOR PLAINTIFFS: Ex.A1: Certified copy of Registered exchange deed bearing document No.919/1952,
dated 22.04.1952.
Ex.A2: Certified copy of Registered registered Sale Deed bearing document No.114/1985, dated 29.01.1985. Ex.A3: Certified copy of Registered Sale Deed bearing document No.746/1989,
dated 20.03.1989.
Ex.A4: Certified copy of Registered Sale Deed bearing document No.798/2000,
dated 28.03.2000.
Ex.A5: Certified copy of Registered Sale Deed bearing document No.799/2000,
dated 28.03.2000.
Ex.A6: Served copy of Plaint in O.S. No.74/2001 dated 23.03.2001 Ex.A7: Office copy of written statement filed by 1st plaintiff in O.S. No.74/2001. Ex.A8: Certified copy of Judgment and decree dated 07.04.2007 in O.S. No.74/2001. Ex.A9: Certified copy of Judgment dated 04.12.2012 in A.S No.203/2010 on the file of
Hon’ble XI Additional District Court, Gudivada.
Ex.A10: Certified copy of Judgment dated 25.10.2016 in S.A.No.2015/2013 on the file of
Hon’ble High Court of A.P.
Ex.A11: Served copy of Caveat to P.W.1 by the defendant Ex.A12: Certified copy of Register of Caveat of the Prl. Junior Civil Judge’s Court, Gannavaram dated 01.01.2014. Ex.A13: Certified copy of page 41 of registered of Caveat where in the caveat was numbered as 5/2017 dated 02.02.2017. FOR DEFENDANT: Ex.B1: Original House tax receipt in favour of defendant Ex.B2: Original Partition Deed dated 29.07.2015,
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Ex.B3: Original House Tax receipt in favour of Vintha Nirmala Ex.B4: Original Electricity bill in the name of defendant Ex.B5: Original possession certificate in favour of Vintha Nirmala dated 18.10.2022.
PRL. CIVIL JUDGE(JUNIOR DIVISION)
-CUM-JUDICIAL FIRST CLASS MAGISTRATE,
GANNAVARAM
FAC/ADDL. CIVIL JUDGE (JUNIOR DIVISION)
-CUM-VIII ADDL.JUDICIAL FIRST CLASS
MAGISTRATE,GANNAVARAM