1 of 21 O.S.No.676 of 2009
IN THE COURT OF PRINCIPAL RENT CONTROLLERCUMXVII JUNIOR CIVIL
JUDGE: CITY SMALL CAUSES COURT : SECUNDERABAD
Dated this the 28 th day of April, 2023
Present: Sri Chirag Mehta
Principal Rent Controllercum
XVII Junior Civil Judge City Small Causes Court Secunderabad.
O.S.No.676 of 2009
Between:
1. M. Satyanarayana Reddy died per LR.
2. M.S. Tejashwari D/o. Late M. Satyanarayana Reddy, aged 44 years, Occ. Research Consultant R/o. Plot No.1, Chandragiri Colony, Trimulgherry, Secunderabad (M. Satyanarayana Reddy died as per LR and M.S. Tejashwari amended as per order in IA.17/2021 dt.15.09.2021) … Plaintiffs
And
1. The Tahsildar, Trimulgherry Mandal Trimulgherry, Secunderabad.
2. The State of A.P. Rep. By its Dist. Collector, Hyderabad. (Defendant No.2 is a formal Party) …Defendants
This suit is coming before me for final hearing in the presence of
Sri R. Ranganathan, Advocate for the plaintiff and of Sri G. Devender
Babu, Advocate for the defendants (Asst. Government Pleader) and upon hearing both sides and perusing the material on record and 2 of 21 O.S.No.676 of 2009 having stood over for consideration till this day, the Court delivered the following:
J U D G M E N T
This is a suit filed by the plaintiff under Section 26 read with Order
VII Rule 1 of Civil Procedure Code praying the Court to pass judgment and decree in his favour restraining the defendant and its agents and officials/employees etc from interfering with the peaceful possession and enjoyment of the suit schedule property and for costs.
2.The brief averments of the plaint are as follows:
The plaintiff is the absolute owner of land admeasuring Ac.311 gts. In Sy.No.96/e, 97/a, 98/a (96,97,98 parts) of Trimulgherry village and
Mandal, Secunderabad. The said property fell to his share in a partition between him and his brothers pursuant to a compromise in a partition suit. The plaintiff is in enjoyment and possession of the same ever since the partition. The plaintiff further submitted that the suit schedule property is the eastern side strip of the land. In view of the rapid expansion of city, a slum has cropped up beyond the eastern side of the suit schedule property and several buildings have come up. This has brought about several problems and the neighbours have started dumping garbage on the plaintiffs land and the open land has become a haven for antisocial elements. The plaintiff further submitted 3 of 21 O.S.No.676 of 2009 that the plaintiff in order to protect his land, constructed a compound wall along the eastern side of his property which is the suit schedule property and some persons who were inimical to the plaintiff in the village, complained to the defendant, the Commandanat, Andhra
Sub Area (Army authorities) who deputed their officers who objected to the constructing the compound wall. The plaintiff produced the joint survey done in the year 2003 in which the Defence Estates Officer, and the defendant were parties and after being satisfied with the same, the Army authorities withdrew from the site and the plaintiff also got issued a legal notice. The plaintiff further submitted that having failed to intimidate the plaintiff, the persons inimical to the plaintiff have approached the defendant who deputed his surveyor and the surveyor also a gave report that the construction was being done within the land of the plaintiff. The plaintiff further submitted that not satisfied with the same the said persons have approached the
Collector and RDO who have ordered the defendant to demolish the compound wall and at the instigation of the persons inimical to the plaintiff who have high influence have managed to force the defendant to act in an illegal manner misusing his powers and the defendant without any notice or hearing or order or proceedings and without even caring for the law came to the suit schedule property on 4 of 21 O.S.No.676 of 2009 10.11.2009 and started to demolish the same. The plaintiff immediately upon coming to know of the same came to the suit spot and showed all the documents and the stones fixed by the surveyor and also survey done by his office in 2003. The defendant, however, stated that he was under pressure from his superiors and he had to carryout the same.
The defendant and his workers have withdrawn from the site upon protest from the plaintiff, but, however, have threatened to come back with greater force and demolish the compound wall. The plaintiff has no other go to approach this Court for protection. The plaintiff further submitted that the defendant is an officer of the State Government and in view of the urgency the notice under Section 80 of Civil
Procedure Code be dispensed with in the interest of justice as otherwise the object of the suit will be defeated by giving the notice or postponement of the institution of the suit. The defendant is hell bent on demolishing the compound wall constructed incurring huge expenditure. Hence, this suit.
3.The defendant filed written statement resisting the suit, the averments of which, in brief, are: The plaintiff is the owner of land
Ac.3.11 guntas in Survey Nos.96, 97, 98/a (96,97,98 parts) of Trimulgherry
Village and fell the same to his share in a partition between him and his brothers pursuance to the compromise or petitioner/plaintiff is in 5 of 21 O.S.No.676 of 2009 possession of the same, or that the suit property is eastern side strip of the land or that in view of the rapid expansion of city, a slum has cropped up beyond the eastern side of the suit property and several buildings have come up or that this has brought about several problems and the neighbours started dumping garbage are all false, baseless and concocted one only for the purpose of filing this suit, hence denied by defendants No.1 and 2and put the plaintiff to strict proof of the same. The defendant further submitted that Sri P.M. John,
President and M. Venugopal, General Secretary, Kamalagiri SC Weaker
Section has filed a complaint application dated 24.10.2009 in the office of the 1st defendant and copied to 2nd defendant along with photos xerox copy of the suit schedule land and informed that the Tank bed land in Sy.No.118 of Trimulgherry village had been encroached by one
Sri Satyanarayana Reddy, landlord of adjacent land. Further they have informed that there is 100 years old Kattamaisamma temple on the
Tank bed many devotees workshop regularly of the Tank bed road leading to their society. They also informed that the land was demarcated by the D.D.S. & L.Rs., Hyderabad District and points were fixed and requested the 1st defendant to take necessary action by fixing the points of the Government land. With reference to the complaint the Mandal Surveyor of 1st defendant office has inspected 6 of 21 O.S.No.676 of 2009 the site of the suit land and reported on 13.11.2001 that the plaintiff herein pattadar in Sy.No.97 has encroached an extent of 35 sq. yards into Sy.No.118 of Trimulgherry village which is a Government land and it is adjacent to Sy.No.97 of Trimulgherry village i.e. on the eastern end of the patta land in Sy.No.97 of Trimulgherry Village. The defendants further submitted that the plaintiff has not issued prior notice before filing the above suit as required under the CPC and in hurried manner filed this suit seeking dispense under Section 80 of Civil Procedure Code which he is not entitled and on the ground of nonissuance of prior notice as required under CPC the above suit shall be rejected or dismissed. The defendant further submitted that on receipt of the report of the Mandal Surveyor and Telephonic message from the 2nd defendant on 13.11.2009, the defendant No.1 herein along with
Mandal Surveyor and Sp.. R.I. of 1st defendant office have inspected the suit land and noticed that the plaintiff has encroached the
Government land in survey No.118 of Trimulgherry village and trying to construct a compound wall. The illegal work on Government land obstructed by this office. The plaintiff has given assurance to remove voluntarily the encroachment covered by a compound wall. The same facts has been informed to the superior of 1st defendant i.e., RDO.,
Secunderabad Division vide C/5750/09 dated 13.11.2009. The 7 of 21 O.S.No.676 of 2009 defendant further submitted that on routine inspection of Government lands it was noticed that the encroachment on the way of a compound wall in survey No.118 of Trimulgherry village was not removed, as stated by the plaintiff for voluntarily removing the encroachment covered by compound wall. Hence, the same has been removed by the Executive Staff of this office on 16.11.2009 at 10.30 a.m., and resumed the encroached land to the extent of 35 sq.
yards and the defendants are in possession. Hence, the defendant prayed this Court to dismiss the suit with costs.
4.Considering the pleadings of the case the following issues were framed by my learned predecessor:
1. Whether the plaintiff is entitled for perpetual injunction against the defendant as prayed for?
2. To what relief?
5. On behalf of the plaintiff, PWs.1 and 2 are examined and got marked Exs.A.1 to A.11. On behalf of the defendant, its
Tahsildar Smt. L. Ramadevi is examined as DW1 and no documents were marked.
6.Both learned counsel submitted their arguments. Heard both sides.
Issue No.1: 8 of 21 O.S.No.676 of 2009
7.The main contention of the plaintiff that he is owner and possessor of land admeasuring Ac.3.11 guntas in Survey No.96/e, 97/a, 98/a (96,97,98 parts) of Trimulgherry village and Mandal,
Secunderabad and in view of rapid expansion of city, a slum has cropped up beyond the eastern side and neighbours started dumping garbage on plaintiff’s land and in order to protect his land from encumbrances he constructed boundary wall along with the eastern side of his land which is petition schedule property and some persons who were inimical to the plaintiff complained to the Commandant,
Andhra Sub Area (Army Authorities) who deputed their officer and they objected for the construction of compound wall and plaintiff had showed them joint survey done in the year 2003 and after being satisfied army authorities left the site and plaintiff also got notice to them. Thereafter persons iminical to plaintiff have approached the defendant who deputed his surveyor and surveyor also gave report that boundary wall is within land of plaintiff.
8.Subsequently said persons approached Collector and RDO and complained that plaintiff has encroached defendant land and the defendant without any notice, came to suit schedule property on 10 112009 and started to demolish the wall, thereafter defendant and their workers have withdrawn from the site after protest and defendant 9 of 21 O.S.No.676 of 2009 threatened to come with greater force to demolish the compound wall.
9.On the other hand, the contention of defendants is that upon the complaint filed by P.M.John President and M. Venugopal,
General Secretary, Kamalagiri SC Weaker Section on 24102009 stating that Tank bed land in Sy.No.118 of Trimulgherry Village had been encroached by Plaintiff and plaintiff also encroached way to
Kattamaisamma Temple on the tank bed and upon inspection by
Mandal Surveyor of 1st defendant office on 13.11.2009 reported that plaintiff No1 pattedar in survey No.97 has encroached an extent of 35 sq. yards in to Sy.No.118 of Trimulgherry village which is government land.
10.On receipt of report of the Mandal Surveyor and telephonic message from 2nd defendant, Defendant No.1 herein along with Mandal Surveyor and special R.I. of 1st defendant office have inspected the suit land and noticed that plaintiff No.1 herein has encroached 35 sd. yards in Sy.No.118 of Trimulgherry village but plaintiff No.1 gave assurance to remove the encroachment covered by compound wall. Later, on routine inspection it was noticed that compound wall in survey No.118 of Trimulgherry Village was not 10 of 21 O.S.No.676 of 2009 removed and the same was removed by the executive staff of their office on 16112009 and resumed the encroached land and now defendants are in possession of that 35 sq. yards encroached land.
11.To prove his contention PW1 examined as PW1 and marked
Ex.A.1 to A.6. Ex.A.1 is the certified copy of compromise petition and decree in O.S.No.942 of 1974 dated 28.02.1991 along with plan. Ex.A.2 is the office copy of legal notice issued tos commandant Andhra sub area dated 14.10.2009, Ex.A.3 is the postal receipt, Ex.A.4 is the office copy of acknowledgement of the legal notice dated 20.10.2009, Ex.A.5 are the photographs with negatives (5 Nos.), Ex.A.6 certfiied copy of pahani for the year 19891990. Ex.A.7 and A.8 Ex.A.7 are marked during cross examination of PW1. Ex A7 is the map of Sy.No.97 of Trimulgherry village. Ex.A.8 is the xerox copy of Nakal Panchanama.
12.Plaintiff No 2 who is Legal representative of Plaintiff No.1 examined herself as PW2 and got marked Ex.A.9 to ExA13. Ex.A.9 is the certified copies of pahanies from the year 1984 to 1990. Ex.A.10 is the letter issued by the Tahsildhar, Trimulgherry Mandal dated 06.12.2022 stating that pahani for the year 1992 to 2006 are not available in their office. Ex.A11 is the notice from TSSPDCL, Secunderabad for regularization of additional load for meter NO.AGOO4327 along with 11 of 21 O.S.No.676 of 2009 inspection report. Ex.A.12 is the downloaded payment receipt of electricity bill for meter No.AG004327 and Ex.A.13 is the photograph along with CD of electricity meter in the petition schedule property.
13.To Prove his contention Defendant No.1 examined himself as DW1 and no document got marked on behalf of DW1.
14.To prove his ownership over the land in survey no 96/e, 97/a, 98/a (96,97,98 parts) admeasuring Ac. 311 gts of Trimulgherry village PW1 filed Ex A1 is the certified copy of compromise petition and decree in O.S.No.942 of 1974 dated 28021991 which shows that partition effected between the plaintiff herein and his brothers and it reflects that the extent of land Ac.311 guntas covered by Sy.No. 96/e, 97/a, 98/a (96,97,98 parts) fell into the share of plaintiff and he become owner of Ac. 311 gts in SY.No.96/e, 97/a, 98/a (96,97,98 parts). To further prove his possession over the property,PW1 filed Ex.A6 which is pahani patrika for the year 19891990 but pattedar name is not clear under Ex.A6. After death of PW1, his daughter came on record as Plaintiff No.2 as legal representative of PW1. Thereafter Plaintiff No.2 examined herself as PW2 and to prove possession over the property filed Ex.A9, which is pahani patrika for the year 198490. Pahani Patrika for the year 19891990 shows that Ramreddy, Satyanarayana and M.
12 of 21 O.S.No.676 of 2009
Raji Reddy are pattedar and possessor of Sy.No.96 admeasuring 2
Acres 10 guntas. In order to explain the reason that why plaintiff has not filed latest pahani copies after he became owner in year 1991 to prove his possession over the property, PW2 relied upon Ex.A8 which is letter issued by defendant office which shows that khasara Pahani, Setwar
Pahani, ROR 1B extract, pahani for the year 1990 to 2006 and non agriculture assessment for the fasli 20002005 are not available with defendant office.
15.To further prove their possession over the property PW2 filed Ex.A.11 to A.13 to show that Electricity meter number AG004327 is in the name of their uncle Sri M. Ram Reddy but during cross examination of PW2, she admitted that survey number is not mentioned under Ex A11 to Ex A13. Since there is no survey number mentioned under Ex A.11 to Ex. A13 therefore Ex A11 to Ex A13 are no way helpful to the plaintiffs to establish their possession over the suit schedule property.
16. However, the main dispute is not with regard to whether plaintiffs are owner and possessors of Survey No.96/e, 97/a, 98/a (96,97,98 parts) and also not with regard to the extent of plaintiffs property. As defendant himself admitted in his written statement that 13 of 21 O.S.No.676 of 2009 upon inspection by Mandal Surveyor of 1st defendant office on 13.11.2009 who reported that plaintiff No1 pattedar in survey No.97 has encroached an extent of 35 sq. yards in to Sy.No.118 of Trimulgherry village which is Government land. Therefore, defendant himself admitted in his written statement that defendant is pattedar in survey
No.97. The main dispute is with regard to area within which boundary wall is constructed i.e. 35 sq. yards which is suit schedule property.
Whether it is part and parcel of eastern side of plaintiff’s land or defendant’s land i.e. Sy.No.118 and whether said boundary wall is constructed within limits of plaintiffs land or defendants land i.e. Survey
No.18. Therefore, the burden to prove that said 35 sq. yards area is part and parcel of eastern side of plaintiffs land and said boundary wall is constructed within limits of plaintiffs land and plaintiffs are in possession is on the plaintiff.
17.According to contention of plaintiff earlier also same persons who presently complained before defendant, also complained before the army authorities and at that time PW1 also got issued Ex A2 which is the office copy of legal notice dated 14102010 issued in reply to notice dated 10.10.2009 to Commandant Andhra sub area stating that there is no defence land and plaintiff is constructing only boundary wall not house therefore, no NOC is required from said 14 of 21 O.S.No.676 of 2009 authority. Ex A3 is the postal receipt and Ex A4 is the acknowledgment of Ex A2. Further according to contention of plaintiff a joint survey was conducted in which Defence Estate Officer and defendant were parties. During cross examination of DW1, copy of survey pertaining to
Survey No.97 was confronted to DW1 and Ex A8 got marked and DW1 further admitted in his cross examination that nakal panchnama is issued by their department and according to Ex A8, plaintiff was permitted to plant survey stones as per the demarcated boundaries of the survey.
18.Ex A8 is the Nakal Panchanama shows that as per tippen and village map, Mandal Surveyor has done the survey and showed the boundaries of survey No.97 to plaintiff and plaintiff was permitted to fix boundary stones. Further to prove that plaintiff constructed boundary wall within the demarcated boundaries by the Mandal
Surveyor, PW1 filed photographs under Ex.A5. During cross examination of DW1, DW1 admitted that wall appeared in 4th photograph of Ex A5 towards it right to the compound wall is east and left is west. DW1 further deposed that presently there is no compound wall as it is demolished by our department which clearly shows that these photographs are pertaining to eastern side compound wall of property. Though DW1 denied the suggestions made by Learned 15 of 21 O.S.No.676 of 2009
Counsel for Plaintiff that pillars shown in 4th photograph under Ex.A5 and compound wall shown under 4th photograph under Ex A5 was constructed within boundaries of Survey No.97. But no single question or even no single suggestion is made by the counsel for defendant during cross examination of PW1 questioning photographs of boundary wall marked under Ex.A5. However, the admission made by DW1 during his cross examination that wall appeared in 4th photograph of
Ex.A5 towards it right to the compound wall is east and left is west.
19.And moreover, as per the schedule of property annexed to plaint shows that East is open land and tank bund and in west there is plaintiff land from which it is clear that wall is pertaining to eastern side and it is also clear that the boundary stones shown in the 4th photograph are also pertaining to eastern side boundary wall of plaintiffs property. This photograph further shows that boundary wall is constructed within the fixed boundary stones not beyond the boundary stones. Further contention of plaintiffs are that on 10112009 defendants only tried to demolish the eastern side wall but till date plaintiffs are in possession and wall is in existence and to prove the same plaintiff relied upon Ex A5 .
16 of 21 O.S.No.676 of 2009
20.According to the contention of defendant executive staff of his office removed the wall on 16112009 and resumed the possession of 35 sq yards. However, this suit is filed on 11112009 and numbered on 13112009, which clearly shows that on the date of filing this suit plaintiff is in possession. During cross examination of DW1, deposed that they have not issued any notice to plaintiff when they attempted to demolish the compound wall which shows that
Defendants tried to demolish compound wall but not succeeded in demolishing the compound wall. Further during cross examination of
PW1, learned counsel for defendant made suggestion to PW1 that plaintiff tried to construct compound wall and after receiving information Tehsildar came to suit schedule property and got demolished some part of compound wall which clarifies that some part of wall is demolished not the complete wall. Further during cross examination of PW2, PW2 deposed that though defendants tried to demolish compound wall but it was not demolished and till date compound wall is in existence and further deposed that his father (PW1) filed photographs pertaining to Eastern side Compound wall marked as Ex A5.
21.All this clearly shows that defendant in order to interfere in the possession of suit schedule property tried to demolish the wall.
17 of 21 O.S.No.676 of 2009
During cross examination of PW1 also learned counsel for defendant has not asked any question pertaining to photographs of Wall marked under Ex A5. Moreover, there is no other evidence on record to show that defendants have demolished the boundary wall and presently there is no wall and defendants are in possession of the same.
Therefore, Plaintiff has discharged his burden of proof. Now onus lies on defendant to prove that plaintiff has encroached tank bed land in Sy.
No.118 of the defendant and the way leading to kattamaisamma temple.
22.The contention of defendant is that plaintiff encroached tank bed land in SY.No.118 of the defendant and the way leading to kattamaisamma temple. But except oral testimony of DW1, there is no evidence on record that plaintiff encroached tank bed land in SY.
No.118 of the defendant and the way leading to kattamaisamma temple. Though PW1 in his cross examination admitted that there is way situated towards eastern side leading towards south but his testimony also disclosed that such way is situated 15 feet away from the eastern side boundary of property. Though the defendants crossexamined the plaintiffs at length nothing was elicited from the crossexamination of the PW1 and PW2 18 of 21 O.S.No.676 of 2009
23.Apart from above discussion, DW1 admitted in his cross examination that about three months back, land covered under survey
No.118 was measured. DW1 further admitted that they have not filed survey report before this Court. If really there is encroachment of defendant’s land i.e. tank bed land in Sy. No.118 then why defendant has not filed measurement report before this Court to show that there is encroachment in survey No.118 by the plaintiff. DW1 further admitted in his cross examination that there is no road in Survey No.118 as per village map. Even if there is road or way leading to kattamaisamma temple then what prevented defendants to file any evidence to prove that plaintiff is encroaching the way leading to kattamaisamma temple. DW1 further deposed during his cross examination that Mandal
Surveyor visited the disputed land and prepared the report and DW1 office has filed said report before this court. But no such report is filed
before this court to prove that plaintiff has enroached defendant’s
land.
24.DW1 further admitted that the surveyor has not issued notice to the plaintiff before conducting the survey of suit schedule property. DW1 further admitted that they have not issued any notice to plaintiff when they attempted to demolish the compound wall of the plaintiff. DW1 further admitted that his predecessor was suspended 19 of 21 O.S.No.676 of 2009 from service on the allegation that he grabbed the land in Survey
No.118. DW1 admitted that plaintiff agreed for joint survey and in the said survey plaintiff assured that if any encroachment will be noticed by defendant then plaintiff will voluntarily remove his compound wall.
Despite this, defendant has not taken any steps for joint survey and this clearly shows that defendants do not want to take any steps for joint survey. If really there is any encroachment on defendant’s land by the plaintiff then what prevented him to take steps for joint survey in order to prevent such encroachment. Therefore defendant failed to discharge his onus to prove that there is any encroachment in Sy.
No.118 by the plaintiff and boundary wall is constructed in Sy. No.118.
25.In the absence of any evidence to substantiate his claim, this Court is of the opinion that the plaintiff has already proved that plaintiff is owner and possessor of Sy. No.96/e, 97/a, 98/a (96,97,98 parts) and eastern side boundary wall is constructed within the within plaintiff’s land and boundary wall is part and parcel of eastern side of plaintiff’s land and plaintiff is in possession of the suit schedule property.
Defendant failed to prove his exclusive possession over the suit schedule property. Accordingly this point is answered in favour of plaintiff and against the defendant.
20 of 21 O.S.No.676 of 2009
26.Hence, the suit is liable to be decreed by granting the perpetual Injunction against the defendants restraining the defendants and its agents and officials/employees from interfering with the peaceful possession or enjoyment of the suit schedule property.
Point No.2:
27.In the result, the suit is decreed by granting permanent
Injunction against the defendants restraining the defendants, his agents and officials/employees from interfering with the possession or enjoyment of the plaintiff over the suit schedule property. No costs.
Typed to my dictation corrected and pronounced by me in the open Court, on this the 28th day of April, 2023.
Principal Rent Controllercum
XVII Junior Civil Judge, City Small Causes Court Secunderabad.
Appendix of evidence
Witnesses examined
For the plaintiff: For the defendants:
PW1 M. Satyanarayana Reddy DW1 Smt. L. Ramadevi PW2 M.S. Tejashwari
Documents marked for the plaintiffs:
Ex.A.1 CC of compromise petition and decree in O.S.NO.942 OF 1974
dated 28.02.1991 along with plan
21 of 21 O.S.No.676 of 2009
Ex.A.2 Office copy of legal notice issued to Commandant Andhra Sub Area dated 14.10.2009 Ex.A.3 postal receipt Ex.A.4 Office copy of acknowledgment of the legal notice
dated 20.10.2009
Ex.A.5 Photographs with negatives (5 Nos) Ex.A.6 CC of phani for the year 19891990 Ex.A.7 Sketch map of Sy.No.97 of Trimulgherry Village Ex.A.8 Xerox copy of Nakal Panchanama Ex.A.9 Certified Copy of the pahanies from the year 1984 to 1990 Ex.A.10 is the letter issued by Tahsildar, Trimulgherry Mandal dt.06.12.2022 Ex.A.11 Notice from TSSPDCL Secunderabad for regularization of
additional load for meter NO.AG004327 along with
inspection report. Ex.A.12 Downloaded payment receipt of Electricity Bill for meter NO.AG004327. Ex.A.13 Photograph along with CD of Electricity Meter in the petition schedule property.
Documents marked for the defendant:
NIL
Principal Rent Controllercum
XVII Junior Civil Judge, City Small Causes Court Secunderabad.