1 OS 292/2009 (Fair)
APSR010003402009
IN THE COURT OF THE ADDITIONAL CIVIL JUDGE
(SENIOR DIVISION), SRIKAKULAM
Present: Sri Ch.Yugandhar,
Additional Civil Judge(Senior Division),Srikakulam
Tuesday, this the 8 th day of April, 2025
Original Suit No. 292 /2009
BETWEEN:
1. Jannela Umamaheswara Rao S/o Venkatappa Rao (late), aged about 65 years, Retired Employee in Revenue Department, Resident of Gunapalem, Srikakulam Town and District.
2. Jannela Ramamohana Rao S/o. Venkatapparao (late), aged about 66 years, Resident of Gunapalem, Srikakulam Town and District.
...Plaintiffs
AND
1. Voona Sarveswara Rao S/o. Satyanarayana (late), aged about 57 years, Business, Resident of VSR Colony, Town Hall Road, Srikakulam Town and District.
2. Jannela Venkata Narasinga Sekhar S/o. Late Satya Rao, aged about 55 years C/o. Principal, ITI, Pedda Gantyada, Visakhapatnam.
3. Jannela Venugopala Rao S/o. Satya Rao (late), aged about 48 years, Venkata Satya Nivas, Gunapalem Road, Srikakulam Town.
4. Jannela Janardhana Rao S/o. Venkata Narasinga Rao (late), aged about 80 years, Plot No.202, 101-2SR Nagar, Hyderabad. (Died) 2 OS 292/2009 (Fair)
5. Jannela Srinivasa Rao S/o. Janardhana Rao, aged about 54 years, Advocate, District Court, Visakhapatnam.
6. Jannela Ravi Kumar S/o. Janardhana Rao (late), aged about 50 years, Advocate, Nehru Road, Srikakulam Town.
7. Jannela Arunkumar S/o. Janardhana Rao, aged about 40 years, Srikars Sri Sai Residency, SR Nagar, Hyderabad.
8. Jannela Venkataramana Rao S/o. Venkata Narasinga Rao, aged about 72 years, HIG-6 Phase I Vuda Colony, Madhavadhara, Visakhapatnam.(Died)
9. Jannela Srinivasa Rao S/o. J.V.Ramana Rao, aged about 38 years, Resident of HIG-6 Phase I Vuda Colony, Madhavadhara, Visakhapatnam.
10.Jannela Raghavendra Rao (Died).
11.Jannela Leela Mohan S/o. Raghavendra Rao, aged about 38 years, Resident of Gunapalem Road, Srikakulam Town and District.
12.Jannela Leela Ramana Rao S/o. Raghavendra Rao, aged about 40 years, Resident of Gunapalem Road, Srikakulam Town and District.
13.Jannela Chakradhara Rao S/o. Venkata Narasinga Rao, aged about 70 years, LIC Nethajee Street, Chinna Waltair.
14.Jannela Praveen Kumar S/o. Chakradhara Rao, aged about 35 years, LIC Nethajee Street, Chinna Waltair.
15.Jannela Sujatha W/o. Venugopala Rao, aged about 60 years, Household duties, Resident of 4th Main, Natraj Layout JP Nagar, 7th Phase, Bangalore.
3 OS 292/2009 (Fair) 16.Jannela Naveen S/o. Venugopala Rao (late), aged about 30 years, Resident of 4th Main, Natraj Layout JP Nagar, 7th Phase, Bangalore.
17.M.Nora Grace Victoria @ Ammalu W/o Raghavendra Rao (late), Resident of D.No.12-16-19, Gunapalem, Srikakulam.
18.Jannela Lalitha W/o. Janardhana Rao (late), aged about 79 years, Household duties, Resident of C/o. Jannela Srinivasa Rao, Advocate,“Srinivas”,D.No.1-107/9-23,M.V.P.Colony, Visakhapatnam.
19.Ankaraboyina Padmaja W/o.A.Venkata Ramana Rao, aged about 48 years, Household duties, Resident of D.No.12-13-249,Street No.2, Lane-9, Sadasiva Nagar, Tarnaka, Hyderabad.
20.Nakkena Jaya Sree, W/o. Rama Krishna, aged about 50 years, Household duties, Resident of H.No.377/2RT, S.R.Nagar, Hyderabad.
21.Jannela Santha Kumari W/o. Jannela Venkata Ramana Rao (late), aged about 68 years, Household duties, Resident of D.No.39-33- 43, HIG-37, Vuda Colony, Madhavadhara, Visakhapatnam. (Defendant No.17 was added as per orders in IA 603/2017 dt.21.11.2017). (Defendants 18 to 20 were added as per orders in IA 514/2019 Dt.26.11.2019). (Defendant No.21 was added as per orders in IA 422/2022 dt.12.10.2022). … Defendants
This suit is coming on 19.03.2025 before me for final hearing in the presence of Sri M.Kali Prasad, Advocate for the Plaintiffs and Sri Y.Murali Mohana Rao, Advocate for Defendant No.1 and Sri.J.Ravi Kumar, Advocate for Defendant Nos D.2 to D.21 and the matter having stood over for consideration till this day and this Court made the following:
4 OS 292/2009 (Fair)
:: JUDGMENT ::
01. This suit is filed for recovery of the plaint schedule property after evicting the first defendant from it and putting the plaintiffs into vacant possession of it, as the first defendant has no right whatsoever in the plaint schedule property derived from defendants 2 to 16, besides a consequential permanent injunction.
02. Av erments of the Neat copy of the Plaint:
(a) The plaintiffs 1 and 2 and their mother, Jannela Ramarathnam, are owners of the plaint schedule property. The plaintiff's mother,
Ramarathnam, died on 29.03.1985, leaving behind plaintiffs 1 and 2 as her legal heirs.
(b) The plaintiffs 1 and 2 and their mother Ramarathnam filed a suit in OS 57/1973 on the file of Subordinate Court, Srikakulam, for partition of their properties into three equal shares and put one such share to the plaintiffs against the brothers of the plaintiffs, father and seven others.
The suit OS 57/1973 was decreed on 27.04.1974 by passing a preliminary decree for 1/3rd share of the properties attached to the plaint.
The plaintiffs filed a petition for the final decree, and the Court was pleased to appoint a commissioner to partition the suit schedule properties into three equal shares and allot one such share to the plaintiffs. Accordingly, J.Kalapurna Rao, Advocate, was appointed as 5 OS 292/2009 (Fair) commissioner, and after execution the warrant, he submitted his report on 21.03.1975, and a final decree was passed on 19.08.1975. After depositing the amounts to share with the plaintiffs as per the directions of the Court, Amin handed over the property to the plaintiffs on 31.12.1975 and submitted his report on 31.12.1975. The plaintiffs have been in possession and enjoyment of the property. The plaint schedule property was handed over to the plaintiffs, and as shown in the plan filed in the
Court, it was marked as "B" Schedule property. The "A" schedule property fell to the share of the late Jannela Sathya Raos' family. They are the defendants 1 to 15. The "C" marked property fell into the share of the late Jannela Surya Rao and his family.
(c) The defendants 2 and 3 are the sons of Sathya Rao.
Defendants 4, 8, 10 and 13 are brothers of Sathya Rao and D.15 and
D.16 are a wife and sons of one of the brothers of Sathya Rao by name
Venugopala Rao who is no more. D.5 to D.7 are the sons of D.4. D.9 is the son of D.8. D.11 and D.12 are sons of D.10. D.14 is the son of D.13.
The above defendants 2 to 16 are some others who have executed sale deeds in favour of defendant No.1, i.e., Vonna Sarweswara Rao for an extent of Ac.0.62 cents and Ac.0.12 ½ cents under two sale deeds dt.21.12.2001 and 24.04.2001.
6 OS 292/2009 (Fair)
(d) They have mistakenly sold the property, which fell to the share of these plaintiffs by showing wrong boundaries. The plaint schedule property is covered by Patta No.52 Old S.No.20 (New S.No.23/1)
Ac.0.77 cents out of Ac.2.30 cents. The purchaser, i.e., 1st defendant, when they tried to measure the plaintiff's property along with the other properties which he purchased, the 1st plaintiff wrote a letter dt.09.07.2009 stating that the property "B" marked one belongs to the plaintiffs and others have no right whatsoever and also narrated the suit particulars in the letter for which the 1st defendant wrote a letter dt.17.07.2009 asking the 1st plaintiff to furnish the copies of Judgment and Amin report etc. Accordingly, the plaintiffs furnished the particulars and plan attached to the letter. However, the 1st defendant, a real-estate owner with money and political power, occupied the plaint schedule property on 20.08.2009, put pegs, and refused to vacate the property.
Plaintiffs, being the owners of property recognized by the Court against defendants 1 to 16, filed this suit for recovery of possession as the plaintiffs have no other alternative. 1st plaintiff is a Retired Tahsildar and law-abiding citizen with no other option except to file the suit to recover possession of the plaint scheduled property and for all consequential permanent injunction after evicting the 1st defendant from the plaint scheduled property and putting the plaintiffs into the vacant possession 7 OS 292/2009 (Fair) of the plaint schedule property. The defendants, 1 to 15, have no right to sell the property as it does not belong to them. Hence, this suit.
03.Written statement of 1 st Defendant:
(a) Defendant No.1 filed a written statement by refuting the allegations levelled in the plaint and explicitly submitted that "A" marked portion was sold in the court auction to one Koyyana Rama Rao, Son-in- law of Gangu Appa Rao, who was tenant of the three portions, who in turn sold the same to this defendant. Regarding, the "B" marked portion, this defendant after filing of this suit, enquired into and learnt that there was an arrangement between the relations of the plaintiffs interse, more so when the "A" marked portion was sold by the court, for an extent of
Ac.0.80 cents; that a tenant is holding the land on tenancy and that the family members felt difficult to evict him; that the plaintiffs have been leaving far from the village; to facilitate to the other sharers, other than "A" share holders, viz., 8th defendant and others have agreed among them that the plaintiff's branch shall have their share on the Eastern side and that 8th defendant and others shall have the middle portion, now shown as "B" marked in the plaint plan; that the tenant shall continue the tenancy on condition of paying the whole rent, inclusive of the rent payable to other two branches, to the plaintiff's branch; that the tenant shall be paid amounts out of consideration/sale proceeds, by 8th 8 OS 292/2009 (Fair) defendant and others in the event they sell, to the said tenant.
Accordingly, the 8th defendant and others, including the tenant named above, have sold the middle portion under two registered documents to this defendant. Further, this defendant came to know that in furtherance of said understanding, the tenant has been cultivating the "C" marked portion and has been paying the rent due to the plaintiff's branch.
(b) It appears that the plaintiffs also tried to sell the "C" marked portion, which they got in the above-said arrangement, to 3rd parties; in suppression of the rights of the said tenant, and unable to do so, the plaintiff resorted to filing this suit, claiming "B" marked portion. That this arrangement is also noticed, bonafide believed by this defendant, after verifying with the boundaries mentioned in the sale certificate issued by the court and delivery warrant, this defendant having noticed that the present "B" marked portion belongs to the 8th defendant's branch purchased the same from them, for real consideration. This defendant already formed a layout in "A" & "B" marked portions and got approval for the same from the concerned authorities in December 2005.
Subsequently, roads were also laid. The "C" marked portion is larger than the "B" marked portion. While this defendant is getting the layout approved, set a part 10 feet width of the site all around, from North to
South, lying between "B" & "C" marked portions. By leaving such a site 9 OS 292/2009 (Fair) by this defendant, the value of the "C" marked portions increased and had good potential. But, the plaintiffs would have sold the "C" marked portion for the tenancy. This defendant believes that for the reasons best known to the plaintiff, they have not chosen the tenant, Gangu Appa Rao, as a party to this suit. This suit is speculative, and the cause of action shown in the plaint is incorrect. There is no real cause of action for the plaintiffs to file the above suit against this defendant. In view of the matter, the plaintiffs' claim is improper and actuated by malice. There is no bonafide on the part of the plaintiff, and the plaintiff is guilty of suppressing the facts mentioned above, which are material. As such, he is liable to be non-suited. Hence, prayed to dismiss the suit.
04. Written statement of 6 th defendant:
(a) Per contra, the 6th defendant filed a written statement adopted by Defendants 4 and 7. They denied the entire plaint averments except admitting the relationship among the defendants and also execution of sale deeds in favour of defendant No.1. It is specifically submitted that the 5th and 6th defendants are the absolute owners of the plaint schedule property and the same was devolved as ancestral property.
The said property is under the cover of tenancy of one Gangu Appa Rao resident of Arasavilli Village. Originally, the land situated in Arasavilli for an extent of Ac.2.30 cents having the share of the plaintiffs and 10 OS 292/2009 (Fair) defendants and out of the extent all the defendants 2 to 16 have right over the property for an extent of Ac.0.77 cents and the remaining property is the plaintiffs and another. The entire property is under the cover of the tenancy of Gangu Appa Rao, and the total property exists side by side. The defendants have right over the property 1/3rd share in
Ac.2.30 cents, i.e., Ac.0.77 cents.
(b) The above-said Ac.2.30 cents were previously cultivated by the said Gangu Appa Rao. Out of the said property, the defendant sold their
Ac.0.75 cents to the defendant No.1 out of their share, i.e., 1/3rd share, for an extent of Ac.0.77 cents to the 1st defendant, which is situated side of the plaintiff's share, under the mediation of the tenant Gangu Appa
Rao and his family members in December 2001. Since then, the 1st defendant has been in peaceful possession and enjoyment of the said property without interruption.
(c) The entire sale transaction with the 1st defendant by the defendants with the knowledge of the plaintiffs in December 2001, and at that time, the plaintiffs did not raise any objection because the defendant sold their share to the 1st defendant. The plaintiffs were not concerned about the plaint schedule property, and now they filed a false suit against the defendants after a lapse of time only to harass them. As the plaintiff bore a grudge against the said tenant as there were some disputes 11 OS 292/2009 (Fair) between them, this suit was filed against the defendants, and they prayed to dismiss the suit.
05.Written statement of 10 th Defendant:
(a) The written statement filed by the 10th defendant was adopted by defendants 2, 3, 8, 9, 11 to 14. Even this defendant has also filed a written statement similar to the written statement filed by Defendant No.6 by denying all the averments of the plaint except admitting the relationship among the defendants. It is submitted explicitly that the 10th defendant is the absolute owner of the plaint schedule property, and the same was devolved as ancestral property, and the said property is under the cover of tenancy of one Gangu Appa Rao resident of Arasavilli
Village. Originally, the land situated in Arasavilli for an extent of Ac.2.30 cents having the share of the plaintiffs and defendants and out of the extent all the defendants 2 to 16 have right over the property for an extent of Ac.0.77 cents and the remaining property is the plaintiffs and another. The entire property is under the cover of the tenancy of Gangu
Appa Rao, and the total property exists side by side. The defendants have right over the property 1/3rd share in Ac.2.30 cents, i.e., Ac.0.77 cents.
(b) The said Gangu Appa Rao previously cultivated the above-said
Ac.2.30 cents. Out of the said property, the defendant sold their Ac.0.75 12 OS 292/2009 (Fair) cents to the defendant No.1 out of their share, i.e., 1/3rd share, for an extent of Ac.0.77 cents to the 1st defendant, which is situated side of the plaintiff's share, under the mediation of the tenant Gangu Appa Rao and his family members in December 2001. Since then, the 1st defendant has been in peaceful possession and enjoyment of the said property without interruption.
(c) The entire sale transaction with the 1st defendant by the defendants with the knowledge of the plaintiffs in December 2001, and at that time, the plaintiffs did not raise any objection because the defendants sold their share to the 1st defendant. The plaintiffs were not concerned about the plaint schedule property, and now they filed a false suit against the defendants after a lapse of time only to harass them. As the plaintiff bore a grudge against the said tenant as there were some disputes between them, this suit was filed against the defendants, and they prayed to dismiss the suit.
06.Based on the above pleadings, my learned predecessor settled the following issues:
1. Whether the Plaintiffs are entitled for recovery of
plaint schedule property after evicting the 1 st
defendant from the plaint schedule property and
put the plaintiffs into vacant possession of the
same?
13 OS 292/2009 (Fair)
2. Whether the 1 st defendant has no right into plaint
schedule property derived from defendants 2 to 16
as pleaded by the plaintiffs?
3.Whether the plaintiffs are entitled for
consequential permanent injunction against the
defendants over the plaint schedule property?
4. If so, to what relief ?
07. On behalf of the Plaintiffs, 1st plaintiff is examined as P.W.1 and
Ex.A1 to Ex.A12 marked on his behalf and on behalf of the Defendants,
D.Ws 1 and 2 are examined and Ex.B1 to B9 marked on their behalf.
08. Heard both sides.
ISSUE NOs.1 and 2
1. Whether the Plaintiffs are entitled for recovery of plaint schedule property after evicting the 1st defendant from the plaint schedule property and put the plaintiffs into vacant possession of the same?
2. Whether the 1st defendant has no right into plaint schedule property derived from defendants 2 to 16 as pleaded by the plaintiffs?
09. To avoid repetition and for the sake of convenience to discuss, both issues are clubbed together.
10. During the trial, 1st Plaintiff is examined as PW1 by filing his chief examination affidavit, reiterating the same contents of his plaint averments. PW1 has also relied on the documentary evidence, Ex.A1 to 14 OS 292/2009 (Fair)
Ex.A12, which are viz., a certified copy of Judgment in OS 57/1973, dt.27.04.1974,a certified copy of Plaint Schedule in OS 57/1973, a certified copy of Commissioner report in IA 222/1974 in OS 57/1973, a certified copy of Order in Final Decree dt.19.08.1975 in IA 222/1974 in
OS 57/1973, a certified copy of Delivery report in EP 85/1975 in OS
57/1973,a certified copy of Amin report in EP 85/1975 in OS 57/1973 dt.31.12.1975, a certified copy of sketch in IA 222/1974 in OS 57/1973,
Reply Notice issued by 1st defendant dt.17.07.2009 to the 1st plaintiff, correlation Certificate issued by Tahsildar, Srikakulam Dt.20.08.2009, a letter addressed by plaintiff to 1st defendant dt.09.07.2009, the rejoinder issued by plaintiff to the 1st defendant dt.04.08.2009, the Pattadhar
Passbook bearing Patta No.343.
11.Arguments on behalf of plaintiffs:
The learned counsel for plaintiff submitted written arguments apart from his oral submissions by referring to pleadings of both parties, evidence and the documents and submitted to that effect, that they filed suit earlier in OS 57/1973 on the file of the Subordinate Court, Srikakulam, for the partition of their properties into three equal shares. The plaintiffs claimed the partition as legal heirs of one Venkata Appa Rao against Surya Rao, Narasinga Rao and their family members. Therefore, the suit was decreed by dividing the suit schedule property into three equal shares and allotted one such share to each of the three branches, i.e., Venkata Appa Rao, Surya Rao and Narasinga 15 OS 292/2009 (Fair)
Rao. Under Ex.A1 and A2 (Ex.A1 is Judgment in OS 57/1973 dt.27.04.1974 and Ex.A2 is Plaint schedules regarding the suit properties in OS 57/1973). Accordingly, a final decree was also drawn in IA 222/1974 in OS 57/1973 under Ex.A4. According to the final decree, the court Amin delivered the share of the plaintiffs in EP 85/1975 in IA 222/1974 in OS 57/1973. To that effect, Amin filed a delivery report along with his report under Ex.A5 and A6. When the final decree was passed, an advocate commissioner was appointed who filed a report division of the properties along with a sketch. The advocate commissioner report is marked as Ex.A3, and the sketch pertaining to the disputed property is marked as Ex.A7. As per the final decree, the advocate commissioner report, the delivery report of Amin and the sketch, i.e., Ex.A2 to A7, discloses that the brown colour "B" marked portion in Ex.A7 sketch was allotted to plaintiffs. But, the brown colour "B" marked portion in Ex.A7 was mistakenly sold to defendant No.1 by the remaining defendants. As such, he filed this suit for recovery of the said "B" marked portion in Ex.A7. It is further submitted that in view of the documents filed by the plaintiff, clearly discloses that the “B” marked property was allotted to the plaintiffs and the defendants did not establish that there was internal arrangement as pleaded by them by mutual exchange of “B” and “C” marked properties and the documents filed by the defendants are not avail to the case of them. Thus, the plaintiffs are entitled for recovery of possession of “B” marked portion.
12.Arguments on behalf of Defendant No.1:
The learned counsel, while referring to the pleadings, the documents and the evidence of all the witnesses, is submitted explicitly that as per the claim of 16 OS 292/2009 (Fair) the plaintiffs, they are out of possession since they sought recovery of possession. If so, the question of seeking a permanent injunction does not arise. It is further submitted that when there is a specific claim of the plaintiff that the "B" marked portion in the Ex.A7 sketch was allotted to them, they would have produced sufficient evidence. However, no particular material shows that the "B" marked portion was allotted to the plaintiff's branch. Ex.A7 sketch does not refer to the "B" marked portion allotted to plaintiffs. The "B" marked portion was allotted to Sathya Rao's branch, which is the father of D.2 to D.16. Even the Amin report/Ex.A6 does not specify which portion of the property in Ex.A7 was allotted to whom and further all the sharers were not present while delivering the property by the Amin under Ex.A5. As there is no specification about the "B" marked portion in Ex.A7 to whom the same was allotted, so the title of the "B" marked portion is in dispute. Therefore, merely filing the suit for recovery of possession is insufficient, and the plaintiff should have sought a declaration of their title concerning the "B" marked portion. The learned counsel, by referring to para 3 of the plaint averments, is submitted that the plaintiffs got knowledge about the sale of "B" marked portion to D.1 in 2001. But, they did not file the suit soon after having come to know about the sale and they kept quiet till 2009 and filed the suit after eight years of the sale. The learned counsel further submitted that the sole daughter of Surya Rao by the name Varalakshmi against whom a suit was filed for recovery of money (OS 37/1985), and subsequently the said suit was decreed against the said Varalakshmi and thereby on execution petition (EP 01/2019) was filed against her by attaching "A" marked portion property which was allotted to her father Surya Rao and brought the said property to the court sale. Accordingly, the property was 17 OS 292/2009 (Fair) purchased by one Koyyana Rama Rao, D.W.2, in the court auction, and the disputed property herein is shown as an Eastern boundary to the "A" marked portion property. The plaintiff is a younger one. Hence, the property was allotted to the Eastern side, and the plaintiff/P.W.1 also stated the same in his cross- examination. Subsequent to the auction sale, the said Koyyana Rama Rao/D.W.2 sold the "A" marked portion to D.1 under Ex.B2 and B3 sale deeds. Thereafter, the present "B" marked portion was purchased by D.1 under two sale deeds, Ex.B4 and B5. The plaintiff did not raise any objection about Ex.B1/sale certificate and did not choose to get cancellation if any wrong boundaries were mentioned therein. One Gangu Appa Rao was a tenant for the entire land of "A", "B", & "C" marked portion in Ex.A7 and D.W.2, i.e., Koyyana Rama Rao is the son-in-law of said Gangu Appa Rao. Ex.B4 and B5 were also attested by the said Gangu Appa Rao, a tenant who executed the sale deeds and owners of "B" marked portion property. The said Gangu Appa Rao died in 2014. The plaintiff did not file any document stating that the Gangu Appa Rao relinquished tenancy rights. The said Gangu Appa Rao executed Ex.B9/Will deed. It is further submitted that defendant No.1 obtained layout approval under Ex.B6 soon after purchasing the suit schedule property. Even at the time, the plaintiff remains silent. It is further contended that there is no proof that other sharers were present at the time of delivery under Ex.A5 and A6, and no schedules were attached to Amin's report. Even the preliminary decree or the final decree does not contain any schedules. So, there is no clear evidence to show that "B" marked portion in Ex.A7 is the same property allotted to plaintiffs herein through the final decree. Therefore, when there was no specific evidence showing that "B" marked portion was allotted to plaintiffs 18 OS 292/2009 (Fair) and final decree, the advocate commissioner report, delivery and Amin report remained silent in that aspect; it cannot be said that "B" marked portion property was allotted to plaintiffs by final decree as alleged by the plaintiffs and if at all, in such circumstances, the plaintiff should have sought for declaration as the title in respect of the disputed property is in question. Hence, this suit for recovery of possession does not arise and is liable to be dismissed.
13.Arguments on behalf of Defendants No.2 to 21:
The learned counsel for defendants 2 to 21 contended that the Amin report and delivery report do not clearly mention that the "B" marked portion was delivered to plaintiffs herein, and there is no specification even in the final decree to say that "B" marked portion was allotted to this plaintiffs. The Amin and delivery report does not contain the defendants' signatures to say that the property was allotted in the presence of these defendants. Further, Amin's report does not disclose to whom the marked portions of Ex.A7 were allotted. After a long duration, despite knowing, the plaintiff filed this suit in 2009, although the sale deeds were executed in favour of D.1 in the year 2001 itself. It is further submitted that the plaintiffs did not choose to seek any relief for cancellation of sale deeds, and they have filed the petition in IA 294/2023 for amendment of plaint, but this court dismissed the same, and they carried the matter to the Hon'ble High Court by preferring civil revision petition and the same was also dismissed. Hence, the plaintiffs are not entitled to any relief in these circumstances.
19 OS 292/2009 (Fair)
Discussion:
14.At the outset it has to be seen whether the brown colour "B" marked portion shown in Ex.A7 was allotted to these plaintiffs' share through the final decree in IA 222/1974 in OS 57/1973, Ex.A4. As the defendants 2 to 21 contending that the said "B" marked portion in Ex.A7 was allotted to them and they are in possession and enjoyment of the same, it is incumbent upon the plaintiffs to prove that brown colour "B" marked portion in Ex.A7 which is suit schedule property herein, was allotted to them by virtue of final decree proceedings under Ex.A4 and delivery report of the Amin under Ex.A5 and A6.
15.To prove the case of the plaintiffs, they have relied on the documentary evidence Ex.A1 to A12, among them Ex.A1 to A7, which assumes much significance since, as per those proceedings, the suit schedule property was alleged to have been allotted to the plaintiffs.
Therefore, the certified copy of Judgment in OS 57/1973 dt.27.04.1974 (Ex.A1), a certified copy of the plaint schedule in OS 57/1973 (Ex.A2), the Certified copy of the Commissioner report in final decree proceedings in IA 222/1974 in OS 57/1973 (Ex.A3), Certified copy of the order in the final decree in IA 222/1974 in OS 57/1973 dt.19.08.1975 (Ex.A4), a certified copy of the delivery report in EP 85/1975 in OS 57/1973 (Ex.A5), a certified copy of Amin’s report in EP 85/1975 in OS 57/1973 20 OS 292/2009 (Fair) dt.31.12.1975 (Ex.A6) and a certified copy of the sketch in final decree proceedings in IA 222/1974 in OS 57/1973 (Ex.A7) has to be scrutinized to ascertain whether the present schedule property is aligned to “B” marked portion in Ex.A7 and the same was allotted and delivered to these plaintiffs or not.
16.Ex.A1 discloses that the plaintiffs herein and their mother filed suit in OS 57/1973 for partition against one Jannela Sathya Rao and seven others. Consequently, the suit was preliminary decreed in favour of the plaintiffs and passed a judgment under Ex.A1 with a finding that a preliminary decree for partition of the plaint schedule properties therein is passed for dividing into three equal shares and to allot one such share to each one of the three branches.
17.Ex.A2 discloses that the description of the properties which were to be partitioned in OS 57/1973.
18.The present suit schedule property in this suit is described in the plaint schedule is as follows:
Srikakulam District- Srikakulam Mandalam- Arasavilli Village-Patta No.52 Old S.No.20 New S.No.23/1, Ac.0.77 cents out of Ac.2.30 cents and bounded by - East: “C” marked portion in the plan of OS 54/1973 South:Property said to have purchased by 16th defendant. West: “A” marked portion in the plan of OS 54/1973 North: Property said to have purchased by 16th defendant.
21 OS 292/2009 (Fair)
19.As per the above description, the property is one shown in Ex.A2 in
Item No.3, where Patta No.52, S.No.20, extent Ac.2.30 cents wetland.
Although four items were shown in the plaint schedule in OS 57/1973 as per Ex.A2, the only dispute with regard to the allotment of this property and the allotment of the remaining properties was not in dispute.
20.Now, coming to the advocate commissioner report, Ex.A3, which was filed in the final decree proceedings in IA 222/1974 in OS 57/1973. A perusal of the advocate commissioner report, the relevant part of the report of the advocate commissioner in Para 8 of Ex.A3, is required to reproduce herein for better appreciation.
"8. with the assistance of the surveyor I have prepared the plans of the plaint schedule properties and divided them into three equal shares taking into account the fertility, water resources and convenience of the parties. The water source for the plaint schedule properties is to the East of the land and the water has to be taken to the lands over the fields as there are no sub channels. The three shares are marked in the plans as red, green and brown by me. The plaint schedule property situated in Arasavilli Village was divided by me into three shares as noted in the table attached to the report filed by me. As S.No.20 is fertile land I had to divide into three equal shares and as
S.No.195/1B and 2 is inferior quality land it has to be 22 OS 292/2009 (Fair) divided into three equal shares. The rest of the wet land belongs to the same category. So, I divided the land into three shares keeping in view of the convenience of the parties as detailed in the table attached to the report".
21. As per the Commissioner's report, the property in Item No.3 of the plaint schedule, which includes the property covered in Patta No.52,
S.No.20, extent of Ac.2.30 cents of Arasavilli was divided into three equal shares as red, green and brown. The duty entrusted to the advocate commissioner is the only division of the properties, and beyond that, he shall not go to allot the property to the parties. Therefore, the contention of the learned counsel for the defendants that there is no specification in the Advocate's commissioner report that the "B" marked portion was allocated to the plaintiffs can't be countenanced.
22. It is now time to examine the final decree in IA 222/1974, which is expected to clarify the allocation of marked and coloured share portions.
A perusal of final decree Ex.A4 discloses on page No.3 as below:
"----, this court doth in pursuance of the commissioner's report and that plaintiffs-Petitioners having been allotted lot I, and lot II having been allotted to the 1st defendant, and lot III having been allotted to defendants 2 to 8 as per plan filed by the 1st defendant on 17.07.1975 in respect of Item 1 of plaint 23 OS 292/2009 (Fair) schedule, and that in Item 3, 'B' share having been allotted to the petitioners-plaintiffs, 'C' share having been allotted to the 1st defendant, and 'A' share having been allotted to the defendants 2 to 8 as per
Commissioner's report, this court doth order and decree as follows;
1. that the petitioners-plaintiffs be put in possession of lot I shown in the plan filed by D.1 dt.17.07.1975 in respect of Item 1 of the plaint schedule: Ac.5.28 cents of wet and dry lands shown as 'B' share in the Item
No.3 of plaint schedule in Commissioner's plan marked in brown colour.
…… …….".
23. As per the final decree Ex.A4, regarding Item No.3, "B" marked
Brown-coloured portion was allotted to the petitioners/plaintiffs. As per
Ex.A2 plaint schedule, the "B" share is a total extent of Ac.14.21 cents.
1/3rd share in the total extent of Ac.14.21 cents, i.e., Ac.5.28 cents, was allotted to these plaintiffs, and these plaintiffs' shares were shown as "B" and marked in Brown colour. For each sub-item, there may be separate maps for each property enlisted in Item no.3 survey number-wise and an
ExA7 map pertaining to the disputed property in Survey No. 20 (new 23/1) in patta 52, extent of Ac.2.30 cents exclusively.
24 OS 292/2009 (Fair)
24.Although no schedules were attached to the final decree proceedings under Ex.A4, the plaint schedules pertaining to the suit OS 57/1973 were filed under Ex.A2. Therefore, even though no separate schedules were attached to the final decree, there would not be any ambiguity with regard to the description of properties, which were required to be partitioned and shares allotted to each of the parties in OS 57/1973. Through the final decree proceedings, the division of the properties and Item No.3 properties were divided into three shares and one such share, an extent of Ac.5.28 cents, was allotted to the plaintiffs.
Ex.A7/sketch discloses that it is exclusively for S.No.20 Arasavilli Village for an extent of Ac.2.30 cents. So, this sketch belongs to the first part of the property enlisted in Item No.3, as shown in schedule Ex.A2. The extent of Ac. 2.30 cents divided into three shares, each one comes to
Ac.0.77 cents. According to the final decree in Ex.A4, the "B" marked portion, which is coloured "Brown", was allotted to the plaintiff herein.
25.So, there is no uncertainty or confusion in the final decree/ExA4 regarding the allotment of shares and the portion of the property that fell in the plaintiff's share. It can also be deduced that Ac.5.28 cents of wet and dry lands, which fell in the share of the plaintiffs as shown in "B" share in Item No.3 of plaint schedule in commissioner's plan marked in brown colour as referred to in final decree Ex.A4 is inclusive of Ex.A7 25 OS 292/2009 (Fair) sketch property. In this regard, unequivocally, the plaint schedule property in this suit, as depicted in the sketch/Ex.A7, is allotted to these plaintiff's branches by virtue of final decree/ Ex.A4.
26. Be that as it may, when coming to the delivery report and Amin's report as marked in Ex.A5 and Ex.A6, it clearly shows that the Plaintiffs herein filed EP.85/1975 based on the final decree in IA 222/74 is OS 57/73 for delivery of possession of their share of Ac. 5.28 cents land is shown as 'B' Share in Item No.3 of the plaint schedule in the commissioner's plan marked in brown. Upon that Court Amin visited the site and delivered the 'B' marked brown coloured portion and the details of the property were also mentioned in Ex.A5 Amin report as survey number 196/3 extent 0.44 cents; survey number 20 extent 0.77 cents (disputed property herein); survey number 391/4 extent 0.78 cents; 386/5 extent of 0.13 cents; survey number 386 extent of 0.13 cents; survey number 386/14 extent 0.04 cents; survey number 386/8 extent 1.24 cents; survey number 379/1 extent 0.08 cents; survey number 377-1/19 extent 0.07 cents; survey number 195.2 R 1/3 extent 0.30 cents; survey number 196/4 extent 0.77 cents; survey number 415/2 extent Ac.0.18 cents; survey number 454-3/B extent Ac.0.10 cents; survey number 450 extent Ac.0.21 cents; totaling Ac.5.28 cents. The same was delivered to the Plaintiffs in village Karanam, and the surveyor was present. This 26 OS 292/2009 (Fair) delivery was made on 31.12.1975. Therefore, the total extent of Ac.5.28 cents, including disputed property, is situated in survey number 20, extent of Ac.0.77 cents and the same was marked as 'B' in the brown colour of the plan attached to the final decree, i.e., nothing but Ex.A7. So it is clear that the 'B' marked portion in Ex.A7 was delivered to plaintiffs herein.
27.The learned counsel for defendants 2 to 21 contended that at the time of delivery, the defendants were not present, and in their presence, the delivery was not made by the Court Amin and Ex.A5 and Ex.A6 Amin report and delivery report does not contain the signatures of the defendants 2 to 21, and therefore, those delivery reports or Amin reports do not bind these defendants.
28.Indeed, the plaintiffs only have actually filed the EP for delivery of their shared property and to put them in possession of such allotted property by removing Jdrs, ie., the defendants 2 to 21 or their family members, if any. So in such circumstances, at the time of delivery of property, there is no obligation for the Amin to obtain the signatures of other defendants of Jdrs in the connected execution proceedings and only to the token of the delivery of the property, usually, the court Amin or the court officer take the acknowledgment of Dhr, i.e., the plaintiffs herein to show that the proceedings of the EP in delivering of the property have 27 OS 292/2009 (Fair) been accomplished. If there is any grievance for the Jdrs in the above- mentioned EP for not securing their presence at the time of delivery, they would have preferred revision or appeal. But they did not choose any action from the date of delivery, i.e., 31.12.1975, and they remained silent. Further, the respondents would have preferred appeal even if the final decree, Ex.A4, was not properly drawn. But they have not done so far. At the time when the plaintiffs filed this suit when they noticed that defendants 2 to 21 mistakenly pursued that 'B' shared property was allotted to them and the same was sold to defendant no.1, they started disputing the very foundation of the allotment by virtue of the final decree proceedings.
29. After passing the final decree, the plaintiff also obtained a pattadar passbook under Ex.A12 and even the said pattadar passbook reflects the plaintiffs' share in survey number 23-1 extent of 0.77 cents. In this regard, the learned counsel for D1 contended that there is overwriting in the survey column. It is only a typographical mistake, and admittedly, survey number 20 was converted into a new survey number 23/1, and to that effect, the plaintiff filed a correlation certificate under Ex.A9. Anyhow, the dispute is with regard to 'B' marked brown colour portion in Ex.A7 whether the same was allotted to the plaintiffs or not. As there is no dispute in relation to the survey number or its extent, even if there is 28 OS 292/2009 (Fair) some overwriting in the survey column in the Pattadar passbook book,
Ex.A12, it does not affect the case of the Plaintiff in any manner.
30. It is pertinent to note that defendants 2 to 21, who are the co-share holders along with the plaintiffs, did not choose to enter into the witness box to give evidence on their behalf, although they filed their written arguments. They kept themselves away from the witness box, infers that the defendants 2 to 21 wantonly and intentionally did not choose to give their evidence; otherwise, the facts would have come to light. Instead,
D1, who is the purchaser of the disputed 'B' marked property from the defendant 2 to 21, is examined as DW1 and reiterated the same contents of his written statement pleadings. His version would go to show that 'A' marked portion was sold in court auction under a sale certificate dated 21.03.2001 to one Koyyana Ramarao, son-in-law of
Gangu Appa Rao, who was the tenant of the entire extent of 2.30 cents in survey number 20 now it is divided into ABC marked portions.
Koyyana Ramarao sold him the 'A' marked portion under two registered sale deeds dated 28.03.2001 and 05.09.2003. Regarding 'B' marked portion after filing of this suit, when he enquired into and learnt that there was an arrangement between the relations of the plaintiffs interse, more so when 'A' marked portion was sold by the court for an extent of Ac.0.80 cents that a tenant is holding the land on tenancy and the family 29 OS 292/2009 (Fair) members felt it difficult to evict him that the plaintiffs had been living far from the village to facilitate to other sharers other than the 'A' share holder i.e, 8th defendant and others have agreed among them that the plaintiffs branch shall have their share on their extreme eastern side and the 8th defendant shall have the middle portion now shown as "B" marked portion, the tenant shall continue the tenancy on condition on paying the whole rent, inclusive of the rent payable to other two branches to the plaintiffs branch that the tenant shall be paid some amounts out of consideration / sale proceeds by the 8th defendant and others including the tenant Gangu Appa Rao, sold the middle portion under two different sale deeds to him. In furtherance of said understanding, the tenant has been cultivating the 'C' marked portion and paying the rent due to the plaintiff's branch.
31.In view of the chief examination of DW1 as above, defendant no.1 /
DW1 intended to convince the court that there was some internal arrangement among the plaintiffs and 8th defendant and mutually exchanged their shares between them “B’ and ‘C’ and vice versa. To that effect, this defendant / DW1 did not produce any kind of evidence by letting the 8th defendant give evidence to that effect. Further, even in the pleadings of the remaining defendants, there is no such kind of averments made by them that there were some internal arrangements 30 OS 292/2009 (Fair) between the plaintiffs and other defendants. Moreover, this defendant /
DW1 did not elicit anything from the plaintiff / PW1 in his cross- examination to suggest that there was some internal arrangement as alleged by him. Without producing any evidence in respect of the alleged arrangement, 1st defendant/DW1 is precluded from saying that after noticing the said arrangements and after verifying the boundaries mentioned in the sale certificate issued by the court and delivery warrant and he noticed that present ‘B’ marked portion belongs to 8th defendant branch and he purchased the same from him and tenant Gangu Appa
Rao for consideration. Once there was a court decree under Ex.A4 and the delivery and Amin report under Ex.A5 and Ex.A6 as per the maps
Ex.A7, the ‘B’ marked portion when delivered to these plaintiffs. Indeed, there must be some documents for the alleged arrangement. Be that as it may, in view of such evidence adduced by DW1, it would suggest that originally, the ‘B’ marked brown colour portion was allotted to the share of these plaintiffs and delivered the same to them. So, the onus of proof would shift to the defendant No.1 to prove the alleged arrangement between the plaintiff and the 8th defendant by exchanging the ‘B’ and ‘C’ schedule properties. But there is no cogent or convincing evidence to probablise such plea regarding arrangement.
31 OS 292/2009 (Fair)
32.Now, coming to the evidence of DW2, who is the son-in-law of the tenant Gangu Appa Rao, according to him, he purchased a wetland of an extent of Ac.0.80 cents in old survey number 20 and new survey number 23/1 situated in Arasavalli village through an auction held by Principal
Senior Civil Judge Court, Srikakulam in EP.1/99 in OS.37/1985 under
sale certificate Ex.B1 which is shown as ‘A’ marked portion in Ex.A7 plan.
He sold the same land to an extent of 0.68 cents under registered sale deed Ex.B2 and an extent of 0.12 cents in the same survey number under registered sale deed under Ex.B3 to Defendant no.1 for a valid sale consideration. Since the purchase date, the first defendant has been in peaceful possession and enjoyment of “A” marked portion.
33. He further deposed that the land lying to the eastern side of the land covered under sale certificate Ex.B1 belongs to Jannela Sayta Rao and others from whom the 1st defendant subsequently purchased the same which is shown as ‘B’ marked portion in Ex.A7 plan for an extent of 0.74 ½ cents under two separate registered sale deeds Ex.B4 and Ex.B5 including tenancy rights.
34.He further deposed that the entire land covered by old survey number 20 and new survey number 21 in Arasavalli Village is an extent of Ac.2.29 cents consisting of ABC marked portions shown in Ex.A7 plan.
The Ryot passbook was also issued by revenue officials Srikakulam in 32 OS 292/2009 (Fair) favour of his father-in-law, Gangu Appa Rao. During his lifetime, Gangu
Appa Rao executed a registered Will dated 27.06.1996 in respect of his properties and cultivating rights in the land extent of Ac.2.29 cents situated at Arasavalli Village, Srikakulam town and district belonging to
Jannela families in favour of his wife Kousalya and after she died his daughters Koyyana Ramalakshmi and Ponnana Lakshmi Kumari. His mother-in-law predeceased his father-in-law, who died in the month of
October 2014. After his death, his wife and her sister Ponnana Lakshmi
Kumari succeeded his properties and cultivated rights over the said land to Ac.2.29 cents by virtue of the said registered Will.
35. He further deposed that he is the son-in-law of Gangu Appa Rao, who is a tenant of ABC marked portions, by paying Ambaram to them.
The 1st defendant formed the layout in 'A' and 'B' marked portions after he purchased them and got the approval of the layout plan Ex.B6. While so, the 'C' marked portion belongs to Jannela Umamaheswar Rao, and his brother Jannela Ram Mohan Rao's family is under the cultivation of
Gangu Apparao during his lifetime as a tenant. After his death, he is cultivating the same as a tenant under the plaintiffs herein by paying
Amabaram regularly to them on behalf of his wife Ramalakshmi and sister Ponnana Lakshmi Kumari as they entrusted the said land for cultivation to him as his father-in-law Gangu Appa Rao had no sons.
33 OS 292/2009 (Fair)
36. He further deposed that the plaintiff's right to sell the 'C' marked portion of land shown in Ex.A7 plan to third parties by suppressing his tenancy rights and to avoid his tenancy rights over 'C' marked portion land, the plaintiffs falsely claiming that they are owners of 'B' marked portion land and filed false suit against the 1st defendant and others.
37.Apart from his oral testimony, he relied on documentary evidence, i.e., a true copy of the registered Will vide document no.53/1996 dated 27.06.1996 executed by Gangu Apparao.
38. The learned counsel for D1 contended that this Will is produced only for corroborative purposes, not for the main objective. Moreover, this
Will is produced by a third party, stating that his father-in-law had executed it in favour of his wife and others. Therefore, in such circumstances, there is no necessity for examining the attestors of the said Will/Ex.B9.
39. To prove a Will, which produced by any witness or the propounder of the Will, must examine at least one of the attestors of the said Will as mandated under section 68 of the Indian Evidence Act and section 63 of the Indian Succession Act.
40.It is a statutory requirement for the proof of Will by examining at least one of the attesting witnesses in accordance with section 68 of the
Indian Evidence Act. There is no difference between the party of the suit 34 OS 292/2009 (Fair) or any third party who is examined as a witness on behalf of the party of the suit. It is also a settled legal position that registration does not automatically accord validity to the document, and the Hon'ble Supreme
Court has reiterated on several occasions that for a Will to be proved as genuine, it must comply with requirements prescribed in the Indian
Evidence Act and Indian Succession Act. The propounder is expected to testify about the proper execution, the presence of the attesting witnesses, and other crucial details as held by the Hon'ble Supreme
Court in China Rani Gosh vs Subash Gosh, and others. (2025
LilveLaw (SC) 56). In this context, the learned counsel for the plaintiff also relied on the decision of the Hon'ble Supreme Court of India in
the Government of Goa through Chief Sec. Vs Maria Julieta Dsouza
(D) AIR online 2024 (SC) 89.
41. When there is no such difference in law between the party to the suit and the third party, whoever relies on the 'Will' must prove the same in accordance with the law. Otherwise, the said Will has no consequence. Therefore, the argument for the learned counsel for D1 about the proof of Will/Ex.B9 is that the formal proof of Will as laid down under section 68 of the Indian Evidence Act can be dispensed since the
Will is produced through the evidence of Dw2, who is a third party to the suit cannot be countenanced.
35 OS 292/2009 (Fair)
42. It is admitted that one Gangu Apparao was the tenant of the entire extent of the suit schedule survey number. However, the assertion of
PW1 in his cross-examination reveals that the tenancy of the said Gangu
Apparao lasts until 30.12.1975. Therefore, the 1st Defendant/DW1 should have established that the entire extent of the land is still under the tenancy of Gangu Apparao or his family. Even DW2 did not produce any documents that they still have been cultivating the land in 'B' and 'C' marked portions as tenants until defendant no.1 purchased the 'B' marked portion.
43. Curiously, it can be seen from the cross-examination of DW2 that he does not know the plaintiffs in this case. If DW2 cultivated the lands of the plaintiffs in the 'C' marked portion and paid Ambaram to them as alleged in his chief examination, it is improbable to say that he does not know the plaintiffs. He also stated that he did not know about the land disputes between the 1st defendant and his brothers. In view of the information elicited from the cross-examination of DW2, it would suggest that DW2 is planted in this case as a witness to support the 1st defendant. Therefore, the evidence of DW2 does not inspire this court's confidence, and his evidence is liable to be rejected.
44.The 1st defendant is stating that as he purchased the property, which was sold in court sale under Ex.B1 from Koyyana Ramarao, i.e., 36 OS 292/2009 (Fair)
DW2 and in the said sale certificate, the boundary to the eastern side to the property comprised in the sale certificate is shown as the property of
Jannela Satyarao as such he is under the impression that the property of the said Jannela Satyarao's family is of 'B' marked portion. As such he purchased the same from Koyyana Ramarao under Ex.B4 and Ex.B5.
Here, it has to be noted that the court auction was made concerning the 'A' marked portion in EP1/1999 in OS.37/1985. In those proceedings, these plaintiffs are not the parties. The said proceedings were made behind the backs of the plaintiffs. Not knowing the boundaries mentioned in the sale certificate/Ex.B1, how can the boundaries' discrepancy bind the plaintiffs? Whatever recitals or the boundaries mentioned in the sale certificate/Ex.B1 do not bear upon the rights of the plaintiffs in respect of the 'B' marked portion, which was allotted to them and delivered through final decree proceedings under Ex.A4 to Ex.A6. As such, there is no much water flown in the argument of the learned counsel for D1 that the plaintiffs, even after knowing about the wrong boundaries mentioned in the sale certificate, did not choose to rectify the boundaries in the sale certificate by preferring to appeal or revision.
45. The learned counsel for D1 further argued that mere seeking for recovery of possession is not sufficient once there is a dispute about the title, and the plaintiffs should have sought for declaration and 37 OS 292/2009 (Fair) cancellation of sale deeds. He placed reliance on the decision of Hon'ble
Supreme Court in Anathula Sudhakar Vs P.Butchi Reddy (dead) by
Lrs and others AIR 2008 (SC) 2033. and contended that where there is a could is raised over the plaintiff's title, and he does not have possession, a suit for mere possession does not lie, and the plaintiff shall seek for declaration.
46. In the instance case, the title of the plaintiffs is not at all in dispute, and as observed above, in the light of the final decree, the Advocate
Commissioner report, Amin report and delivery report (EX.A4 to Ex.A6) set out that the plaintiff's share was marked as 'B' Brown coloured portion concerning item no.3 therein as shown in Ex.A7 sketch. When it was that clear, where was the cloud over the title or share of the plaintiffs?
Moreover, as observed above, when D1 took such kind of defence in his written statement and his evidence that there was an arrangement between the plaintiffs and the 8th defendant for the exchange of 'B' and 'C' marked portions and vice versa though he did not prove it, however in the light of such defence, it makes clear that originally 'B' marked portion was allotted to the plaintiffs herein only. Therefore, there is no dispute about the plaintiffs' title over the suit schedule property herein.
38 OS 292/2009 (Fair)
47.Moreover, even the decision of Anathula Sudhakar, referred supra on which the learned defence counsel relied, also fortified this Court's findings in para 17 of the Judgment.
‘17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established based on title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
39 OS 292/2009 (Fair)
(c) But a finding on title cannot be recorded in a suit for injunction unless there are necessary pleadings and appropriate issue regarding title [either specific or implied as noticed in Annaimuthu Thevar (supra)].
Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the
Court will not investigate examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the Court may decide upon the issue regarding title, even in a suit for injunction.
However, such cases are the exception to the usual rule that the question of title will not be decided in suits for an injunction.
But persons having clear title and possession suing for injunction should not be driven to the costlier and more cumbersome remedy of a suit for declaration merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully 40 OS 292/2009 (Fair) to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
48. As per the above legal position, when there is no dispute regarding the title, and he is out of possession, he can sue only for possession with a consequential injunction. Therefore, there is no necessity to seek a further declaration of title by the plaintiffs in this suit in view of Ex.A4 to
Ex.A7. Thus, there is no defect in the framing of the suit.
49. The 1st defendant entered into the suit schedule property and attempted to layout, which assumes that the plaintiff is not in possession of the suit schedule property and is ousted from possession of the suit schedule property. As such, his possession shall be restored. Therefore, when the 'B' marked portion in Ex.A7 is allotted and delivered to plaintiffs, which is nothing but suit schedule property herein, the same shall not be alienated by anyone other than the plaintiffs. If any sale transaction occurred between strangers concerning the plaintiff's property, the said sale transactions are not binding on the plaintiffs herein. It is not out of context; in the circumstances, the plaintiff need not ask for even cancellation of the said sale deeds since the said sale deeds render invalid documents in the eye of the law since the property 41 OS 292/2009 (Fair) comprised in the said sale deeds does not belong to the vendor therein, and he has no salable right. Thus, based on the sale deeds Ex.B4 and
Ex.B5, no rights will be accrued to defendant No. 1 in any manner.
50. The plaintiffs are entitled to recovery of possession of the suit schedule property. Thus, the issues 1 and 2 are answered in favour of the plaintiffs.
ISSUE NO.3 :-
Whether the plaintiffs are entitled for consequential permanent injunction against the defendants over the plaint schedule property?
51.The plaintiff presently may not be in possession of the suit schedule property. Still, in view of findings in issues 1 and 2, the plaintiff is entitled to recovery of possession by evicting defendant no.1 since he did not derive any right from other defendants through said sale deeds
Ex.B3 and Ex.B4. Thereafter, the plaintiffs are also entitled to a consequential injunction against the defendants or their men or agents, which shall not interfere with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property.
42 OS 292/2009 (Fair)
ISSUE NO.4 :-
If so to, what relief?
52.In light of findings and observations made by this court after appreciating the oral and documentary evidence of both parties, in addition to their pleadings, the suit shall be decreed in favour of the plaintiffs.
53.As a result, the suit is decreed with costs directing defendant no.1 to evict from the suit schedule property and deliver the vacant possession to the plaintiffs within 3 months from the date of this judgment. Failing which, the plaintiffs are entitled to recovery of possession of the suit schedule property through due process of law.
Thereafter, the plaintiffs are entitled to a consequential injunction restraining the defendants and their men from interfering in the peaceful possession and enjoyment of the plaintiffs over the suit schedule property.
On my dictation directly typed by Typist, corrected and
pronounced by me in open Court, on this the 08 th day of April, 2025.
CHADALAVADA
Digitally signed by
CHADALAVADA YUGANDHAR
YUGANDHAR
Date: 2025.04.08 15:22:07 +0530
Additional Civil Judge(Senior Division)
Srikakulam.
43 OS 292/2009 (Fair)
APPENDIX OF EVIDENCE
Witnesses Examined
For Plaintiffs:
P.W.1: Jannela Uma Maheswara Rao.
For Defendants:
DW.1:Vonna Sarveswara Rao.
D.W.2:Koyyana Rama Rao.
Documents Marked
For Plaintiffs:
Ex.A.1: A Certified copy of Judgment in OS 57/1973, dt.27.04.1974.
Ex.A.2: A Certified copy of Plaint Schedule in OS 57/1973.
Ex.A.3:A Certified copy of Commissioner report in IA 222/1974 in
OS 57/1973.
Ex.A.4: A Certified copy of Order in Final Decree dt.19.08.1975 in
IA 222/1974 in OS 57/1973.
Ex.A.5 :A Certified copy of Delivery report in EP 85/1975 in OS 57/1973.
Ex.A.6: A Certified copy of Amin report in EP 85/1975 in OS 57/1973 dt.31.12.1975.
Ex.A7: A Certified copy of sketch in IA 222/1974 in OS 57/1973.
Ex.A8: The Reply Notice issued by 1st defendant dt.17.07.2009 to the 1st plaintiff.
44 OS 292/2009 (Fair)
Ex.A9: A Correlation Certificate issued by Tahsildar, Srikakulam
Dt.20.08.2009.
Ex.A10:The Letter addressed by plaintiff to 1st defendant dt.09.07.2009.
Ex.A11: The rejoinder issued by plaintiff to the 1st defendant dt.04.08.2009.
Ex.A12:The Pattadhar Passbook bearing Patta No.343.
For Defendants:
Ex.B.1: The Sale Certificate dt.21.03.2001 in EP 1/1999 in OS 37/1985.
Ex.B.2: A Registered sale deed dt.28.03.2001.
Ex.B3 : A Registered sale deed dt.05.09.2003.
Ex.B4 :A Certified copy of Registered sale deed dt.21.12.2001.
Ex.B5:A Certified copy of Registered sale deed dt.24.12.2001.
Ex.B6: The Approved layout plan.
Ex.B7: The Adangal for fasali 1403 to 1416.
Ex.B8:The Original Rythu Passbook of Gangu Appa Rao.
Ex.B9:The True Copy of registered Will vide document No.53/1996 dt.27.06.1996 executed by Gangu Appa Rao S/o. Ramanna.
CHADALAVADA
Digitally signed by
CHADALAVADA YUGANDHAR
YUGANDHAR
Date: 2025.04.08 15:22:33 +0530
Additional Civil Judge(Senior Division)
Srikakulam.