1
IN THE COURT OF THE PRL. JUNIOR CIVIL JUDGE AT KHAMMAM
Dated this the 08th day of May, 2015
Present:- Smt. D.Madhavi Krishna.M.A., M.L, Prl. Junior Civil Judge, Khammam.
O.S.No. 947 of 2004
Between:-
Nimishakavi Gopala Rao @ Gopal, S/o late Laxminarayana, Age: 60 Yrs, Occ: Business, R/o H.No: 5-3-38, Pakabanda Bazar, Khammam town and District. …………. Plaintiff
And
1Padma Suryanarayana @ Suresh, S/o Ashalu, Age: 30 Yrs, Occ: Fitter in S.C Co.ltd, Yellandu, R/o H.No: 1-9- 35/1, Indira Nagar, Khammam town and District 2Nimishakavi Ramu, S/o Narsaiah, Age: 30 Yrs, Occ: Business, R/o H.No: 5-3-45, Pakabanda Bazar, Khammam town and District 3Nimishakavi Srinu, S/o Narsaiah, Age: 33 Yrs, Occ: Business, R/o H.No: 5-3-45, Pakabanda Bazar, Khammam town and District.
4Smt. Padma Laxmi, W/o Suryanarayana @ Suresh, Age: 35 Yrs, Occ: Household, R/o Baiti Kammari Bazar, Khammam (impleaded as per orders dated 08-09-2006 vide I.A 434 of 2006)
……….. Defendants
This suit is coming up before me on 02-04-2015 for final hearing in the presence of Sri H.Sree Ram Rao, Advocate for the Plaintiff and of Sri K.P Satyanarayana Rao, Advocate for Defendants and upon hearing and having stood over for consideration till this day, this court delivered the following:-
J U D G M E N T
This suit is filed for recovery of vacant possession of suit “A” schedule property and also for perpetual injunction restraining the defendants, their men and other persons claiming through them from interfering with the peaceful possession and enjoyment of the Plaintiff over the suit “B” schedule property and to award costs of the suit.
2
2. The brief facts of the plaint are that the Defendant No.1 is son in law and Defendants 2 and 3 are sons of younger brother of the Plaintiff by name Nimishakavi Narsaiah. Originally Plaintiff had purchased a old house bearing No. 2-7-100/1, 2-8-10 from one Moram Ramaiah vide registered document bearing No. 965/1961 dated 21-12-1961 and the said house was in dilapidated condition and there remains only house site. On 12-07-1967 the
Plaintiff had also purchased a open site measuring 88 Sq yards pertaining to house bearing municipal No. 2-7/97 which is towards western side of the property purchased by the Plaintiff earlier from Kandrathi Nana Saheb and
K.Chinna Swamy. Thus, the Plaintiff became owner and possessor of the house site measuring 262 Sq yards plus 88 Sq. yards totalling to 350 Sq. yards which is hereinafter referred as suit “A” and “B” Schedule properties. The Plaintiff could not pay municipal tax to old house as the said house is in dilapidated condition though it is having municipal number. The Plaintiff went to the suit “A” and “B” schedule properties and observed a construction being in progress and the
Plaintiff when enquired with the maisons and labourers, they informed to the
Plaintiff that it is the Defendants 1 to 3 are making constructions in the suit “A”
Schedule property. The Plaintiff also observed a bore well in the “A” Schedule property. For the purpose of clarity, the property occupied by the Defendants is described as Suit “A” schedule property and the remaining property described as suit “B” Schedule property. Immediately the Plaintiff approached the
Defendants 1 to 3 and questioned them for making construction in the suit “A”
Schedule property for which they replied evasively. Defendants are making construction by occupying an extent of 100 square yards belongs to the plaintiff in suit “A” schedule property. Then the Plaintiff demanded the Defendants to 3 vacate and hand over the occupied suit “A” Schedule property, but the
Defendants are high handed and the plaintiff is not in a position to resist the illegal acts of the Defendants without the help of the Hon'ble court. Further, there is every possibility that the Defendants may occupy the suit “B” Schedule property at any time. Hence, the suit for recovery of vacant possession of suit “A” Schedule property and for perpetual injunction over suit “B” Schedule property.
3.The Defendant No.1 filed written statement denying the plaint averments.
The specific contention of the Defendant No.1 is that Plaintiff is not the absolute owner of the house site measuring to an extent of 262 Squard yards. The boundaries given in the suit schedule property are not correct boundaries and they did not tally with the actual boundaries. The plaintiff is no way concerned with the suit schedule property and is not entitled to recover possession of the same on the strength of the alleged purchase made by him. The suit schedule property is joint family property of the plaintiff and his three brothers namely
Nimishakavi Dasaratham, Nimishakavi Narsaiah and Nimishakavi Ramulu. The suit schedule property was allotted to the share of Nimishakavi Narsaiah in a partition in between his brothers long ago and Nimishakavi Narsaiah became absolute owner of the suit schedule property and he sold the property to the wife of Defendant No.1 by name Padma Lakshmi through registered sale deeds in the year 1997 and in the year 2001. Therefore, Smt. Padma Lakshmi became the absolute owner of the suit schedule property and she had constructed a house in the suit schedule property and is living in the said house being absolute owner of the same. The municipal authorities had given necessary permission and approved plan also. As alleged in the plaint, the suit schedule 4 property is not a open site and by the time, the suit was filed and by the date of filing of the suit, most of the construction was over and the Plaintiff did not object the progress made in the construction from the date of the suit till this day. The
Plaintiff is aware of the fact that none of these Defendants is neither in possession or has no right or interest in the suit schedule property and for the reasons best known to him maintaining silence seeing progress of the construction activities. These defendatns are strangers to the suit schedule property, although the real owner of the property is none other than wife of
Defendant No.1, and Defendant No.2 and Defendant No.3 are brothers of
Defendant No.1 wife. The very suit is speculative and aimed at calling harassment to the Defendant, because of enemity developed by the Plaintiff with the family of Narsaiah, who is his own brother. He further submitted that the wife of Defendant No.1 constructed house and completed the same in all respects and is residing in the house within the boundaries mentioned in her sale deeds and both extents in the sale deeds are compact block. The wife of Defendant
No.1 constructed the house, in which compact block area covered by the sale deeds. The Plaintiff supressed the fact that the suit schedule property in which old house is in existence was allotted to the share of his brother Narasaiah and filed this suit falsely. It is further contended that the suit is liable to be dismissed for not impleading the wife of Defendant No.1 and there is no cause of action.
4.The Defendant No.4 who impleaded as per the orders in I.A 434 of 2006
dated 08-09-2006 filed written statement. She has submitted in her written
statement that the allegations made in the plaint are denied. She further submitted that she is the daughter of Nimishakavi Narsaiah, who is the younger brother of the Plaintiff. The Plaintiff, Nimishakavi Dasaratham, Nimishakavi 5
Narsaiah and one Nimishakavi Ramulu are natural brothers. These brothers effected partition of their joint family properties in the year 1968 orally and all of them acknowledged the partition of the properties in writing on 23-06-1968. In the said partition, the house bearing municipal No. 2-7-100/1 fell the share of
Nimishakavi Narsaiah, father of this Defendant. The said house was in existence in an area of 329 Sq yards and the municipal authorities have given new number to that house as 7-5-82. In accordance with the partition between the brothers, the said house was mutated in favour of her father Narsaiah from the year 1976-77 and her father Narsaiah enjoyed the property as absolute owner of the same and discharged his duties as a owner by paying municipal tax etc., being the absolute owner of the property, he sold the house site under the municipal No. 7-5-82 to this Defendant through registered sale deed in two parts. The defendant purchased an extent of 239 square yards through the registered sale deed bearing document No. 4530 of 1997 and also purchased an extent of 91 square yards through registered sale deed bearing document
No. 4257/01 from the original owner K.Narsaiah. As already submitted above, this Defendant purchased the said site under the dismantle house No. 7-5-82 and both the extents formed into a single compact block and the municipal authorities approved the plan submitted by this Defendant for construction of house by her. The relevant documents filed before the court. The Plaintiff is aware of purchase made by Defendant No.4 from Nimishakavi Narsaiah and he is also aware of the construction made by her and out of greediness, he has started this litigation with a view to extract money from her on the strength of registered sale deed cleverly stolen by him from her father Nimishakavi
Narsaiah. Her father is a deaf and dumb person and similarly the other brothers 6
Dasaratham and Ramulu are also deaf and dumb persons. Among the brothers, the Plaintiff is only the normal person and he knew all the family affairs, since the other brothers are handicapped. With a view to blackmail the Defendant
No.4, the Plaintiff has started litigation after a gap of 36 years encouraged also by the fact that the partition between the brothers was not registered one. The document which was reduced into writing fortunately, made available with her will reveal the truth of the partition and the said document is submitted to the
I.C.I.C.I bank by her for the purpose of raising loan for construction of the house.
The Plaintiff is no way concerned with the 329 square yards, which is under the lawful occupation of this Defendant and the boundaries of the same as a fully compact block are as East: House of Maduri Gopala Rao, South : House of
Bhoga Raghuramulu, West: House of Methuku Venkateswarlu and north:
House of Katakam Laxmaiah. She further submitted that she constructed a compound wall on all sides of 329 Square yards, which is a compact block. The vendor by name Nimishakavi Narsaiah enjoyed the property as absolute owner of the suit house bearing No. 2-7-100/1 and new No. 7-5-82 to the knowledge of the plaintiff, since the year, 1968 for a period of 12 years by the date of suit and even other wise, perfected his right, title by prescription and therefore, the plaintiff is neither in possession of the alleged “A”schedule property nor he is entitled to recover “A” Schedule property. Accordingly, Defendant No.4 prayed for dismissal of suit.
5.Basing on the pleadings of the both sides, the following issues were framed for trial:
1.Whether the Plaintiffs are entitled for perpetual injunction and to recover the possession of suit “A” schedule property as prayed for?
7 2.To what relief?
6.After filing of written statement by Defendant No.4 on 19-01-2007, the
Court has re-casted the issues and framed the additional issues as follows:
1)Whether the suit schedule “A” and “B” properties are joint family properties of the Plaintiff and his natural brothers Dasaradh, Narsaiah and Ramulu?
2)Whether the suit schedule “A” and “B” properties were allotted to the share of
Nimishakavi Narsaiah?
3)Whether the suit schedule “A” and “B” properties were mutated in favour of
Nimishakavi Narsaiah in the municipal records?
4)Whether the Defendant No.4 acquired valid title and possession over the suit schedule “A” and “B” properties?
5) Whether the suit schedule “A” and “B” properties are compact block on the spot?
7.During the course of trial Plaintiff himself examined as P.w.1 and got marked Ex.A.1 to A.6 documents. On Defendants side D.Ws 1 to 5 were examined and Ex.B.1 to B.4 were marked.
8.Heard both sides.
9.Earlier this court dismissed the suit in Judgment dated 31-03-2009.
thereafter, the plaintiff preferred appeal suit in A.S 131/2009 before the Hon'ble
Judge for trial of SC/ST Cases (POA) Act, Khammam and the Hon'ble appelate
court set aside the Judgment of this court on 15-03-2012 and remanded the suit to dispose of the same afresh by giving opportunity to adduce evidence by both sides. After remand of the suit, DW-3 filed additional chief affidavit and got marked Ex.B.5 document and PW-2 and DW-6 were examined.
10.Plaintiff filed suit seeking recovery of possession regarding “A”
Schedule property measuring 100 Sq Yards and for perpetual injunction regarding “B” Schedule property measuring 250 Sq yards.
8
11.Regarding relation ship of the parties, Plaintiff has three brothers namely Nimishakavi Dasaratham, Nimishakavi Narsaiah and Nimishakavi
Ramulu and their father is Laxminarayana. Out of them Dasaratham is not alive.
Defendant No.1 is son in law of Narsaiah, Defendants 2 and 3 are sons of
Narsaiah. Defendant No.4 is daughter of Narsaiah and wife of Defendant No.1.
EVIDENCE ON RECORD :-
12.During the course of trial plaintiff examined as PW-1 and got marked
Ex.A.1 to A.6 documents. Plaintiff claimed to have been purchased 262 square yards site from one Moram Ramaiah, S/o Laxmaiah vide registered sale deed
dated 21-12-1961 and its certified copy is marked as Ex.A.2. Plaintiff originally
purchased a old house bearing No. 2-7-100/1, 2-8/10 and said house was in dilapidated condition. Plaintiff also purchased open site measuring 88 square yards pertaining to H.No: 2-7-97 on 12-07-1967 vide registered sale deed and its certified copy was marked as Ex.A.1. Thus, the total site purchased by
Plaintiff comes to 350 Sq. Yards which is suit schedule property. According to the Plaintiff suit “A” Schedule property is in illegal occupation of the Defendants and Defendant No.4 raised illegal constructions. Ex.A.3 is English translated copy of Ex.A.2 document. Ex.A.4 is E.Cs (2) in number obtained to H.No 2-7- 100/1, 2-7-100/2. These E.Cs obtained for 15 years i.e from 01-01-1990 to 08- 06-2004 which did not reflect any transaction including Ex.B.1 and B.2 on which
Defendant No.4 relied upon. As per Ex.A.4 the above said houses stands in the name of Plaintiff. Ex.A.5 is market value certificates of schedule properties (2) in number, Ex.A.6 is photographs (6) in number showing laying of foundation stone pillars in suit schedule property and there is gathering of construction material.
PW-1 evidence shows that he is residing in a house situated at 1 ½ furlong 9 distance to the schedule property and he used to visit the schedule property from his house and recently at the time of filing suit he found illegal constructions made in “A” schedule property and immediately he filed suit. His cross examination goes to show that his joint family properties are situated at
Pakabanda Bazar where the house bearing No. 5-3-44 and 5-3-45 which were partitioned among him and his brothers in the year 1950. There is no document evidencing partition. He used to run pan shop for a period of 20 years and now he is not doing any work. Admittedly except plaintiff, his three other brothers are deaf and dumb by birth. He admitted that he used to manage joint family properties. He denied the suggestion that suit schedule property fell to the share of his brother Narsaiah under Ex.B.5 partition.
13.PW-2 who is own sister of Plaintiff deposed that her father acquired ancestral properties situated at Pakabanda Bazar, Khammam which were not partitioned. She denied that in partition schedule property fell to the share of
Narsaiah and in turn he sold the said property to Defendant No.4. She deposed that Defendant no.4 is residing at Yellandu. She rightly deposed the boundaries of house constructed by Defendant No.4 similar to the boundaries given in suit “A” schedule property except Eastern boundary.
14.Defendant No.1 examined as DW-1 who re-iterated the contents of his written statement. His cross examination shows that his marriage with DW-3 (Defendant No.4) took place in the year 1984. From 1984 to 1989 they resided at Yellandu. Since 1989 they have been residing in suit schedule property house at Khammam which is old one. In the year 2000 the said house was demolished. In the year 2001 the house was registered in the name of
Defendant No.4. He was present at the time of registration of document Ex.B.1 10 and B.2. He deposed that his wife purchased schedule property for Rs 1,50,000/- from her father namely Narsaiah. She got register documents for 238
Sq. Yards and for 90 Sq yards site. She further deposed that after perusing and verifying the documents, his wife purchased the property. He also deposed that in the year 1968 partition was effected among the Plaintiff and his brothers. The original partition deed kept with ICICI for obtaining loan. He did not know whether partition deed was registered document or not? He pleaded ignorance the source of acquiring the property by the father of the Plaintiff. In the year 1984 the name of Narsaiah was mutated in the municipal records regarding schedule property who also paying house and other relevant taxes. He denied the case of the Plaintiff. He further added that original documents were not handed over by Narsaiah to his wife regarding schedule property.
15.DW-2 is the Defendant No.2 in the suit. He is the brother of
Defendant No.4 and son of Narsaiah. His evidence is that his father sold schedule property to Defendant No.4 vide Ex.B.1 and B.2 registered documents.
He was also present at the time of sale transaction. He deposed that prior to the year 1997 there was a house, but he did not know who constructed the said house. He also deposed that the electricity connection obtained in the name of his father in schedule property and his father got the same property in the partition among his brothers in the year 1968.
16.Defendant No.4 examined as DW-3 and she got marked Ex.B.1 to
B.5 documents. Ex.B.1 is certified copy of extract of registered sale deed dated 17-11-1997 executed by Narsaiah in favour of Defendant No.4 regarding vacant site relating to H.No: 7-5-82 measuring 238 sq yards. Ex.B.2 is certified copy of registered sale deed dated 23-07-2001 executed by Nimishakavi Narsaiah in 11 favour of Defendant No.4 regarding vacant site situated on eastern side to schedule property to H.No: 7-5-82 measuring 91 Sq yards. Ex.B.3 is certificate issued by Commissioner, Khammam Municipality dated 07-07-2006 stating that old H.No: 2-7-100/1, new No. 7-5-82 stands in the name of Nimishakavi
Narsaiah in municipal records from the year 1976-77 till 2002 and from 2002 it was in the name of Defendant No.4 till date. Ex.B.4 is property tax receipt dated 22-08-2006 under which Defendant no.4 paid house tax for H.No: 7-5-82,
Ex.B.5 is un-registered partition deed dated 23.06.1968 which was strongly opposed by the Plaintiff.
17.After remand of the suit DW-3 also filed her additional chief affidavit. The cross examination of DW-3 shows that she did not know how her father and paternal uncles including Plaintiff acquired schedule property. She further admitted that no document was available regarding acquisition of schedule property originally. Earlier DW-3 did not file Ex.B.5 document but after remand of the suit she has filed the same before this court. Originally schedule property stands in the name of Plaintiff, but DW-3 could not say whether partition deed marked under Ex.B.5 is registered document or not. She further deposed that in the year 1968 partition was effected and her father resided in the schedule property house by paying property tax and electricity bills. She further deposed that her father Narsaiah also got another house at Pakabanda Bazar,
Khammam. She further deposed that earlier to her purchase, there is a house in that plot purchased by her and the said house bearing No. is 2-7-100/1, but she did not know whether it was constructed by her father and his brothers or they purchased the house already constructed. She also admitted that Plaintiff used to run pan shop near Prabhat talkies, Khammam. She denied the suggestion 12 that she or her father never resided in suit schedule property, but they resided at
Pakbanda Bazar, Khammam. She denied the suggestion that no consideration amount was passed under Ex.B.1 and Ex.B.2 and they are created documents.
18.DW-4 who is wife of Narsaiah also deposed that suit schedule property was purchased by Defendant No.4 who is her daughter under Ex.B.1 and B.2 documents from her husband. Her evidence also shows that after her marriage with Narsaiah she had joined him in her house situated apart from schedule property for a period of two years and thereafter they shifted to suit schedule property and lived there for 25 years. She further deposed that her daughter given one portion on rent in schedule property. She did not know in whose name the property stands prior to mutation in the name of her husband. She also did not know when partition was effected, but it was prior to her marriage. She further deposed that there was joint property house situated at main road, Paka
Banda Bazar which was partitioned. The evidence of PW-1 in cross examination that a partition was effected regarding their joint family properties in the year 1950. Therefore, the evidence of PW-1 and DW-4 shows that though there was partition effected regarding their joint family properties in the year 1950, it is not regarding suit schedule property and Ex.B.5 partition deed is not regarding the partition as deposed by PW-1. The evidence of PW-1 and DW-4 shows about partition took place in the year 1950, but not about Ex.B.5.
19.DW-5 who is resident of H.No: 7-5-81, neighbourer house owner of
Defendants 1 and 4 deposed corroborating the evidence of Defendant no.4. She also deposed that Plaintiff never resided in the suit house and it was sold by
Narsaiah to his daughter. She also deposed that Defendant No.4 demolished old construction and raised new construction by obtaining permission from 13 concerned authorities. She further deposed that till Defendant No.4 started construction none was resided in the schedule property. She further deposed that Plaintiff used to visit suit schedule property. Finally DW-5 deposed that except DW-4 residing in the suit schedule house, she did not know other facts of the case.
20.DW-6 who is thrid party to the proceedings deposed that his father is scribe of Ex.B.5 document and now his father is not alive who died in the year 1997. He identified the signature of his father on Ex.B.5 partition deed.
Admittedly DW-6 was not physically present while execution of Ex.B.5. He also admitted that his father has no license to write documents. He could not identify the signatures of others.
ADDL. ISSUE NO.1:
21.The contention of the Defendants is that suit schedule property is joint family property of Plaintiff and his three brothers namely Dasaratham, Narsaiah and Ramulu. They have been partitioned schedule property on 23-06-1968 which was reduced into writing vide Ex.B.5. Accordingly the schedule property was fell to the share of Narsaiah who is father of Defendant No.4. In the year 1997 and in the year 2001, the said Narsaiah sold away schedule property vide
Ex.B.1 and B.2 through registered sale documents to Defendant No.4.
Accordingly Defendant No.4 claiming schedule property by virtue of Ex.B.1 and
B.2 documents. On contrary the contention of Plaintiff is that schedule property is his self acquired property by virtue of Ex.A.1 and A.2 documents. Ex.A.1 and
A.2 being registered documents clearly established that Plaintiff purchased an extent of 262 Sq. Yards and 88 Square yards, totalling to 350 sq. yards by registered documents. Therefore, the burden of the Plaintiff to this extent is 14 deemed to have been discharged. But to prove the schedule property is joint family property of Plaintiff and his brothres, the burden shifts to the Defendants.
But, unfortunately the Defendants did not file single document before the court to prove that schedule property is joint family property. Even the Defendants failed to say to whom the suit schedule property originally belongs to. According to PW-2 her father acquired ancestral property which was situated at
Pakabanda Bazar, Khammam, but it is not suit schedule property. Admittedly the suit schedule property is situated at Baiti Kammari Bazar (Sukravarapupeta).
According to DW-3 she did not know the source of acquiring the property originally and there was no document available to that effect. DW-4 also did not know how schedule property originally acquired. Therefore, the Defendants failed to establish that suit schedule property is joint family property of Plaintiff and his brothers. Accordingly, issue is answered.
ADDL. ISSUES 2 AND 3:
22.It is the contention of the Defendants that suit schedule property was fell to the share of Nimishakavi Narsaiah and his name was also mutated in the municipal records regarding the said property. But admittedly there is no single document filed before this court to show that suit schedule property was mutated in the name of N.Narsaiah in the year 1976 and 1977. Admittedly the mutation proceedings also not filed in the court. There is no single document filed before this court showing that N.Narsaiah paid municipal tax in his name for the schedule property at any time. However, the Defendants got marked Ex.B.3 certificate issued by the Commissioner, Khammam Municipality stating that from the year 1976-77 till 2002 the H.No: 2-7-100/1, new house number is 7-5-82 stands in the name of Narsaiah. But there was no reference mentioned under 15
Ex.B.3. The Defendants also silent basing on which document the said house number mutated in the name of Narsaiah. In this regard the contention of the
Plaintiff is that by managing concerned authorities, the said Narsaiah got mutate his name regarding schedule property without his knowledge. Except Ex.B.3, there is no other document available before the court to show that schedule property was in possession and enjoyment by Narsaiah since 1976 till 1997. It is the evidence of DW-1 that the mutation was effected in the year 1984 and tax receipts regarding property was available with his advocate, but they were not filed in the court. The evidence of DW-1, 2 and 4 in chief showing that there was oral partition effected in the year 1968 and their chief affidavits did not discloses regarding the date of Ex.B.5 document. DW-3 who added as Defendant No.4 subsequently only mentioned the date of alleged partition deed. But she also did not know whether Ex.B.3 is registered document or not. Coming to the evidence of DW-4 who is wife of Narsaiah deposed that the municipal authorities did not allot any house number to the schedule property. Admittedly, though the said
Narsaiah and his wife resided in the schedule property for more than 20 years they did not obtained any voter identity card or ration card in the schedule property address.
23.Though the name of N.Narsaiah recorded in municipal records as owner of schedule propertyhouse, it is well settled law that mere entries in municipal records does not create any right or take away any existing right in the property and they are only for the purpose of levying property tax. Ex.B.3 was obtained on 07-07-2006, Ex.B.4 was obtained in the name of Defendant No.4 on 22-08- 2006. But any tax receipts or electricity bills stands in the name of N.Narsaiah during the period from 1968 till 1997 are not filed in the court. On perusal of the 16 evidence of DW-3 deposed earlier, that there was no document available evidencing partition. But after remand of the suit, in her chief affidavit she referred that her father handed over partition deed to her. Though she deposed that electricity meter was sanctioned in the name of N.Narsaiah, there is no proof filed to that effect. Therefore, basing on Ex.B.3 the Defendants could not claim any right or title in favour of Narsaiah regarding schedule property.
Therefore, it is held that Defendants failed to establish that schedule property fell to the share of N.Narsaiah and his name was mutated in municipal records.
Accordingly, these issues are answered.
ADDL. ISSUE NO.4:-
24.In view of my observation in the above issues, it was held that schedule property is not joint family property of Plaintiff and his brothers. Thus, Ex.B.5 held not proved. Consequently under Ex.B.1 and B.2, N.Narsaiah could not transfer any valid title in favour of Defendant No.4. When the evidence of DW-3 is that she never resided in H.No: 7-5-82, DW-5 deposed that Defendant No.4 and her husband resided in the said house. Admittedly, Ex.B.1 and B.2 did not have any reference regarding alleged partition deed of Ex.B.5. In this regard the
Defendants failed to offer any proper explanation why N.Narsaiah did not referred about acquiring of schedule property towards his share in the partition while executing Ex.B.1 and B.2 documents. Further regarding sale transactions under Ex.B.1 and B.2, according to DW-1 the sale consideration is Rs.
1,50,000//-, according to DW-3 it is Rs 95,200/-, whereas according to DW-4 it is one lakh. Therefore, it appears that transactions of Ex.B.1 and B.2 appears to be nominal documents. Though the Defendants took steps to send Ex.B.5 along with original plaint to Expert for comparison of signatures of Plaintiff, the Expert 17 in his report opined that as there is age gap of 38 years in between questioned and specimen signatures, he could not give definite opinion. Both attestors and scribe of Ex.B.5 not alive. Therefore, the Defendants failed to prove the contents of Ex.B.5 document. Consequently, under Ex.B.1 and B.2, Defendant
No.4 is not entitled to claim any valid title or possession over the schedule property. Accordingly, this issue is answered.
ADDL. ISSUE NO.5:-
25.Ex.A.1 and A.2 are the registered documents clearly shows that schedule property covered under Ex.A.1 i.e 88 Sq. yards situated on western side to the property covered under Ex.A.2 i.e 262 Sq. yards. Thereby, it was proved that schedule property “A” and “B” is in one compact bit. Accordingly, this issue is answered.
MAIN ISSUE NO.1
26.The Plaintiff claimed recovery of possession of Schedule “A” property and for perpetual injunction restraining the Defendants from entering into “B”
Schedule property which is in his possession. According to PW-1 and Ex.A.1 and Ex.A.2, under Ex.A.1 plaintiff purchased 88 sq. yards from Kandrathi Nana
Saheb and Chinaswamy. Similarly, under Ex.A.2 he purchased 262 Sq. yards from M.Ramaiah. Thus, the Plaintiff claimed total extent of 350 Sq. yards. By that time there was old house number 2-7-100/1, 2-8/10 were in dilapidated condition. But the Defendants by influencing the revenue authorities, basing on created document of alleged partition Ex.B.5, mutated the property in the name of N.Narsaiah and in turn got created Ex.B.1 and B.2 documents in favour of
Defendant No.4 to knock away the property of the Plaintiff. PW-2 also deposed that Defendant No.4 by demolishing old construction raised new construction 18 and also compound wall, thereby Defendant No.4 is in possession of 350 Sq yards. I already observed above that the Defendants did not file any mutation proceeding or any property tax receipts or Electricity bills stand in the name of
N.Narsaiah regarding schedule property. Therefore, the contention of the
Defendants that they acted upon Ex.B.5 is not proved. According to the
Defendants Nimishakavi Narsaiah is in possession of schedule property for a period of 12 years, but it was not proved by any document. In the absence of any documentary proof, the oral evidence to the aspect of possession and the contention of Defendants regarding possession of N.Narsaiah need not be taken into consideration.
27.As per section 17(1)(b) of Registration Act 1908, “Deed of partition is compulsory registrable document. The partition among heirs may be effected orally, but if the parties reduced it in writing to a formal document which is intended to be evidence of partition it would have effect of declaring exclusive title of coparcener to whom a particular property was allotted in partition”.
Therefore, the document would be required to be compulsorily registered. If the deed of partition is not dealt with nature of possession of shares, it cannot be therefore received in evidence to establish the factum of partition. However, it can be received in evidence for collateral purpose of severance of status and anything more. The counsel for Defendants has contended that Ex.B.5 partition deed is a document executed about 30 years back. Therefore, the presumption under section 90 of Evidence Act can be taken in favour of the Defendants and it can be presumed as genuine document. He also relied upon the decision reported in Om Prakash (D) thr. Lrs Vs. Shanthi Devi and others 2015
SAR(CIVIL), 299. The gist of the above decision coupled with section 90 of 19
Indian Evidence Act, document in question should be registered document and it should be produced before the court from proper custody. In the present suit earlier the Defendants did not produce Ex.B.5 document, but after remand of the suit, then only they have secured the document and filed in the court. Therefore, it cannot be said that the document produced from proper custody. As the document is not registered, the Defendants are not entitled to avail the benefit of
Section 90 of Indian Evidence Act, 1872.
28.On perusal of Ex.B.5, it shows that five properties were divisioned. Item
No.1 is tiled house which was given to mother of the parties namely
Bhagyamma. Item No.2 is gold and silver articles worth Rs 600/- given to
Dasaratham. Item No.3 is soda machine along with empty bottles allotted to the
Plaintiff. Item No.4 is tiled house with municipal number 2-7-100/1 (which is in dispute) given to N.Narsaiah. Item No.5 is wooden pan shop situated near
Prabhath talkies given to Ramulu. As rightly pointed out by the learned counsel for the Plaintiff, Ex.B.5 did not contain any survey number of the properties or description of gold and silver articles and number of soda bottles etc. It also did not contain the extent of house number 2-7-100/1, whereas Ex.A.1 and A.2 clearly described the house number of the property with specific boundaries.
There is no mention of boundaries of the property in Ex.B.5 document. Thus, the identity of the property described in Ex.B.5 also not possible. The division of shares under Ex.B.5 and the value of the properties given there under also not equal to all members. Therefore, the division of shares under Ex.B.5 appears to be improper, unequal and doubtful. Moreover, none of the elders who were present at the time of alleged partition are examined before this court. I also observed above that Narsaiah did not referred about said partition in Ex.B.1 and 20
B.2 documents executed in favour of his daughter. There is also no basis for issuing Ex.B.3 certificate by municipal authorities, Khammam. Therefore,
Ex.B.3 and B.5 documents cannot be relied upon. Ex.A.1 and A.2 are registered documents executed about more than 30 years back can be relied upon and they are also not challenged by the Defendants till today. Even by the date of alleged partition under Ex.B.5 Plaintiff already got obtained registered documents in his favour regarding the same property. Therefore, Ex.A.1 and A.2 prevail over Ex.B.5. There are no merits in the contention of the Defendants that the schedule property boundaries are not correct. Further in the written statement of Defendant No.1 it was averred as there was partition about long long ago, but the date of Ex.B.5 as 23-06-1968 is not mentioned. Therefore, if really Ex.B.5 is in existence, it should be referred in written statement filed by
Defendant No.1 at earliest point of time. But after adding Defedant No.4 in the suit in her written statement she got mentioned Ex.B.5. Further in Ex.B.5 the extent of property of house No.2-7-100/1 as 329 sq yards is not mentioned which is claimed by the Defendants. Moreover the father of Defendant No.4 died only one year back. But the Defendants failed to take steps to examine him
before the court. Further the Defendants 2 and 3, and wife of Narsaiah those
alleged to have been present at the time of transactions under Ex.B.1 and B.2, they have not attested the said documents.
29.It is the contention of Plaintiffs that after alleged purchasing the property under Ex.B.1 and B.2, the Defendants kept quite for three years and then in the year 2004 started construction, then only Plaintiff objected it and filed the suit.
Therefore, the contention of Defendants that to blackmail Defendant No.4,
Plaintiff started litigation after 30 years is not tenable. When there was no 21 document available to show that Narsaiah resided in H.No: 2-7-100/1 for more than 12 years, the contention that there by got his title and right by presumption is not acceptable. PW-2 also categorically deposed that when the Defendant
No.4 forcibly and in hurried manner started construction, the plaintiff filed this suit. According to DW-2 his father has no land remained after selling the property to Defendant No.4. But Ex.B.1 shows that eastern boundary referred as vacant site and house number 7-5-83. According to DW-3 earlier to her purchase there was house situated, but according to Ex.B.1 it was already demolished and only vacant site was sold to her. In Ex.B.1 old house number 2- 7-100/1 is not mentioned but new house number 7-5-82 was given. When DW-3 deposed that after purchasing the property she has demolished old house, but as per Ex.B.1 she purchased vacant site after demolishing the old house.
Therefore there are material contradictions in the evidence of Defendants and their documents, thereby failed to create confidence to believe their case.
Therefore, from the above discussion it is held that Plaintiff able to made out his case. Hence, he is entitled for relief. Accordingly, this issue is answered.
MAIN ISSUE NO.2:-
30. IN THE RESULT: The suit is decreed with costs as prayed for. The
Defendants are hereby directed to hand over the vacant possession of schedule “A” property to the Plaintiff within two months from the date of this Judgment failing which Plaintiff is entitled for the same through process of the court.
Plaintiff also entitled for perpetual injunction against defendants regarding “B”
Schedule property as prayed for.
Dictated to stenographer, transcribed by her, corrected and pronounced by
me in the open Court on this the 8th day of May, 2015.
PRL JUNIOR CIVIL JUDGE,
KHAMMAM.
22
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF:- DEFENDANT:- PW.1 N.Gopala Rao, DW.1:P.Suryanarayana, PW.2 Ch.Tirupathamma. DW.2:N.Ramu, DW.3: P.Lakshmi DW.4: N.Chanchamma DW.5: B.Satyavathi DW.6: R.Bhanumurthy
EXHIBITS MARKED FOR
PLAINTIFF:-
Ex.A.1Registered sale deed dated 12-07-1967
Ex.A.2Registered document in Urdu dated 21-12-1961
Ex.A.3English Translation of Ex.A.2
Ex.A.4E.Cs obtained in respect of H.No: 2-7-100/1 and 2-7-100/2, 2-7-97
Ex.A.5Valuation certificate issued by Joint Sub-Registrar-I, Khammam in respect of H.No: 7-5-1981
Ex.A.6Photographs (6) in number along with negatives.
DEFENDANT:-
Ex.B.1Certified copy of Registered sale deed dated 17-11-1997,
Ex.B.2Certified copy of Registered sale deed dated 27-07-2001, 23-07-2001
Ex.B.3Certificate issued by Khammam Municipality dated 07-07- 2006
Ex.B.4Tax receipt dated 22-08-2006
Ex.B.5Ex.B.5 is un-registered partition deed dated 23.06.1965
PRL. JUNIOR CIVIL JUDGE,
KHAMMAM.
23