Smt.D.Sarala Kumari
VIII Addl. Senior Civil Judge
Rangareddy, PDJ Court Complex · Rangareddy · Telangana
Based on 3 recent ordersSmt.D.Sarala Kumari, VIII Addl. Senior Civil Judge, is posted at Rangareddy, PDJ Court Complex, Rangareddy, Telangana, India. 3 court orders on record since 2009. 3 judgments with full text available. Primarily handles OS cases.
Featured Judgments
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IN THE COURT OF THE VIII ADDITIONAL SENIOR CIVIL JUDGE,
RANGAREDDY DISTRICT AT L.B.NAGAR.
Present:Smt.D.Sarala Kumari, M.A., LL.M., VIII Addl.Sr.Civil Judge, Rangareddy District.
On this the 10th day of February, 2012
O.S.No.166 Of 2007
Between:
Eeramalla Bal Raj S/o late Chithari aged 47 yrs. Occ : Agriculture, R/o Nomula village, Manchal Mandal, Rangareddy District.…Plaintiff
AND
1. Nallanagula Sunanda W/o late Bal Reddy, aged about 48 yrs. Occ : House hold
2. Nallanagula Karnaker Reddy S/o late Narsi Reddy, aged about 46 yrs. Occ : Fair Price Shop Dealer
3. Nallanagula Ram Reddy, S/o late Narsi Reddy, aged about 43 yrs. Occ : Single Window Chairman
4. Nallanagula Umarani W/o Ram Reddy, aged about 36 yrs. Occ : House hold.
5. Nallanagula Srilaxmi W/o Karnaker Reddy, aged about 42 yrs. Occ : House hold.
6. Nallanagula Deepthi D/o Bal Reddy, aged about 23 yrs. Occ : Student.
All are R/o Nomula village, Manchal Mandal, Rangareddy District.… Defendants 2
This suit is coming before me for final disposal in the presence of Sri M.Srinivas Reddy, Counsel for plaintiff and Sri N.Venkat Reddy, Counsel for defendant Nos.1 to 6 and upon perusing the material on record, this court delivered the following:
J U D G M E N T
This suit is filed for the Declaration of Ownership and for Perpetual
Injunction and Correction of Records.
02.The brief averments of the plaint are that the plaintiff is absolute owner and pattadar and possessor o the agricultural land admeasuring
Ac.1424 gts. situated at Nomula village, Manchal Mandal. Originally one
Gulam Jilani was pattadar of the land admeasuring Ac.1724 gts., in
Sy.No.360 situated at Nomula village. Father of the plaintiff Eeramalla
Chithari was the Protected Tenant and possessor of the said land. The father of the plaintiff was in possession of the said land till his death and after his death, the plaintiff being only son of Chithari has been in continuous possession over the said land. In the year 1975 the Revenue
Divisional Officer, R.R.East Division was issued 38E patta certificate in favour of plaintiff in respect of the land bearing Sy.No.360 measuring
Ac.1724 gts. of Nomula village vide proceedings No.B/428/LRE/1975, dt.26.8.1975. Thereafter the plaintiff name also mutated as pattadar. The plaintiff name also recorded as pattadar and possessor in Revenue Records and concerned authorities issued pattadar pass book and title deed. The plaintiff for his financial necessities alienated Northwest side portion land admeasuring Ac.200 gts., out of Ac.1724 gts. to one Dandetikar Ravi through registered sale deed vide document No.3984/2005 dt.11.11.2005.
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The plaintiff donated the Eastern side portion of Ac.100 or construction of
Beerappa Swamy Temple and Mallikarjuna Swamy Temple in favour of its
President V.Jangaiah, Secretary K.Mallesha vide document No.9423/2006 dt.21.7.2006. Therefore, remaining land is suit schedule property with an extent of Ac.1424 gts. In the month of August, 2006 defendant Nos.1 to 3 who are no way concerned with the suit schedule property created some anti dated documents and forged documents with the collusion of Revenue
Officials, by representing the facts and suppressing the real facts in fraudulent manner. Basing on the created forged documents, defendants got obtained ROR proceedings in respect of the land bearing Sy.No.360 admeasuring Ac.832 gts. out of Ac.1424 gts. which the defendants are not entitled to mutate their names. After knowing that, the plaintiff approached the MRO immediately on 31.8.2006 and filed the Objection
Petition in the said matter, but the defendants in collusion with Revenue
Officials obtained ROR Proceedings by mentioning anti dates vide
Proceedings No.ROR/RS/47/2005, dt.1.8.2006 and after verifying the records, the plaintiff came to know that 3rd defendant who is working as a
Chairman of Agricultural Cooperative Bank at Nomula village obtained signature of the plaintiff for the purpose of agricultural land and the said papers used and created for alleged agreement of sale and fabricated other documents. Basing on the said documents, the defendants trying to knock away the valuable property of the plaintiff. The plaintiff also made a complaint before Manchal Police, but the police failed to take necessary action against the defendants since the 3rd defendant is having political influence and the fatherinlaw of defendant Nos.1, 4 and 5 and father of 4 defendant Nos.2 and 3 and grand father of 6th defendant named Nalla
Nagula Narsi Reddy also taking advantage of previous entries in revenue pahanies filed false cases before the Joint Collector, Rangareddy District and also before the Civil Courts in one way or the other way to harass the plaintiff and Narsi Reddy also tried to grab some portion of the plaintiff, but failed in his malafide intention. After getting certified copies, the plaintiff filed appeal before the Revenue Divisional Officer, after hearing the arguments passed the Interim Suspension Orders dt.2.11.2006 against the
ROR orders passed by the MRO. The appeal is still pending vide ROR
Appeal No.A2/4405/2006 from the year 200001 pahani the names of defendant Nos.4 to 6 recorded as pattadar pass books in respect of the land admeasuring Ac.827 gts., as a matter of fact, according to the contention of defendants the plaintiff sold Ac.832 gts., in suit survey number on 19.3.1999 in favour of the defendants. Accordingly, the mutation proceedings issued. Due to differences in between plaintiff and the defendants and due to abnormal increase of market rate of suit land the defendants interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule land and taking advantage of the wrong entries.
03.Defendant No.3 filed written statement. The same was adopted by the other defendants. The defendants have taken a stand that originally
Gulam Jilani was the pattadar of the land admeasuring Ac.1724 gts. in
Sy.No.360. The father of the plaintiff is Protected Tenant. The father of 3rd defendant namely Nallanagula @ Nallangi Narsi Reddy has purchased land 5 from the original pattadar on 18.5.1968 through an unregistered sale deed and since then he was in possession by cultivating the said land till 1993.
While the matter stood thus, the plaintiff obtained 38E certificate over the said land through proceedings No.B/428/LRE/1975 dt.26.8.1975 by the then RDO. At the time of issuance of certificate, the plaintiff was not in possession and the father of the 3rd defendant was in possession of the property. On the application, the MRO delivered the physical possession under cover of panchanama on 25.10.1993 to the plaintiff by evicting the said Narsi Reddy in respect of the above said land in Sy.No.360. Hence, the said Narsi Reddy constrained to file O.S.No.66/94 on the file of Munsiff
Magistrate, Ibrahimpatan, Rangareddy District along with I.A.No.337/1994
restraining the plaintiff from causing interference. On hearing of either side, the court held that already possession was delivered in favour of the
Protected Tenant so that injunction cannot be granted against the Protected
Tenant. Subsequently, on 6.10.99 the main suit also dismissed. Original pattadar Gulam Mohammed Yousuf also filed appeal before the Joint
Collector against the order passed by the MRO, Manchal. Since the delivery of possession by the M.R.I the plaintiff herein was in possession over the
Sy.No.360 admeasuring Ac.1724 gts. Thereafter, defendant Nos.1 to 3 approached the plaintiff and purchased half of the land i.e., Ac.832 gts. out of Ac.1724 gts. @Rs.6,000/ per acre for total amount of Rs.52,800/. On receipt of total sale consideration, the plaintiff has executed an unregistered sale deed in favour of defendant Nos.1 to 3on 19.3.1999. The plaintiff also delivered physical possession to defendant Nos.1 to 3. Since then they are in physical possession of said purchased land without any hindrance of 6 anybody. The plaintiff also agreed to execute registered sale deed when it is required in favour of defendant Nos.1 to 3. Due to the cases pending in between the plaintiff and original pattadar Gulam Mohammad Yousuf the plaintiff did not come forward to execute the registered sale deed.
Subsequently, the case was compromised at the intervention of village elders in between the original pattadar and plaintiff and 38E certificate was confirmed in favour of the plaintiff. Consequently, defendant Nos.1 to 3 approached Mandal Revenue Officer, Manchal for regularization of said unregistered sale deed U/s.5A of A.P ROR Act. After due enquiry, by issuing notice to plaintiff and defendant Nos.1 to 3, on recording the statements of plaintiff, the MRO has issued proceedings vide
No.ROR/RS/47/2005 dt.1.8.2006 by declaring the defendant Nos.1 to 3 as owners of the land admeasuring Ac.832 gts. by deleting the earlier owner's name i.e., plaintiff. Therefore, the defendants became absolute owners of the purchased land. The plaintiff transferred the land admeasuring
Ac.1132 gts. out of Ac.1724 gts. Therefore, the plaintiff is having only
Ac.532 gts. in Sy.No.360. There is no such things done by the defendant
No.3 as alleged by the plaintiff. Hence police not registered any crime against them. Defendant No.3 having no political influence in Manchal
Mandal. The father of 3rd defendant Nallangi Narsi Reddy purchased the entire land Ac.1724 gts. on Sy.No.360 from its pattadar in the year 1968 through registered sale deed. Since the date of purchase, he was in possession over the said land for causing interference by the plaintiff. The said Narsi Reddy filed suit for Perpetual Injunction against the plaintiff.
The said suit was dismissed for default. The said suit was not pursued by 7 3rd defendant since defendant Nos.1 to 3 have already purchased the land
Ac.832 gts. in Sy.No.360 from the plaintiff herein. Keeping the said grudges in between plaintiff and defendants family, obtained ROR
Proceedings fraudulently. The plaintiff with an intention to harass the defendants wontedly suppressed all the real facts and chosen to file all false cases against the defendants. Therefore, the plaintiff is not entitled for any relief as prayed.
04.Basing on the contra stands taken by both parties, the following issues are settled.
i. Whether the plaintiff is entitled for declaration of title
as prayed for ?
ii. Whether the plaintiff is entitled for Perpetual Injunction
as prayed for ?
iii. Whether the plaintiff is entitled to the direction to
correction of entires in the Revenue Entries as prayed for ?
iv. To what relief ?
05.PWs1 to 4 examined on behalf of the plaintiff. Exs.A1 to A17 marked. DWs1 to 3 examined on behalf of the defendants. Exs.B1 to B21 marked. CWs1 and 2 examined and Ex.X1 marked.
06.Issue No.1 : It is the case of the plaintiff that originally one Gulam
Jilani was pattadar of land an extent of Ac.1724 gts. in Sy.No.360 and the father of the plaintiff E.Chathari was protected tenant and possessor of said land till his death. After his death, the plaintiff who is only son of late
Chithari has been in continuous possession over the said land. In the year 8 1975 the RDO issued 38E patta certificate in favour of the plaintiff and his name was mutated in the Revenue Records. For his financial necessities the plaintiff alienated Ac.200 gts., of land towards Northwest side of the land out of Ac.1724 gts. to one D.Ravi through registered sale deed. The plaintiff has donated Ac.100 gts., of land towards Eastern side of the total land for construction of Beerappa Swamy Temple and Mallikarjuna Swamy
Temple and executed gift settlement deed in favour of the Temples. After deducting Ac.300 gts. of land the said land from Ac.1724 gts. the remaining Ac.1424 gts. remaining in possession of the plaintiff. In the month of August, 2006 the plaintiff came to know that defendant Nos.1 to 3 who are no way concerned with the property of the plaintiff misrepresented and suppressed the real facts and created forged documents, got obtained
ROR proceedings in respect of the land admeasuring Ac.832 gts. out of
Ac.1424 gts. Knowing the said fact the plaintiff approached the Revenue
Authorities and made objection before them. 3rd defendant who is working as a Chairman of Agricultural Cooperative Bank at Nomula village obtained signatures of the plaintiff for the purpose of agricultural loan and the said papers used and created alleged agreement of sale and fabricated other documents. Basing on the said documents, the defendants in collusion with
Revenue Officials and Village Panchayat Secretary created ROR proceedings also reported before the police, but they have not taken any option. The plaintiff also preferred appeal against the ROR Proceedings issued in favour of the defendants. After hearing arguments, passed Interim Suspension
Orders dt.2.11.2006. The said Appeal is still pending. Taking advantage of the revenue entries and the defendants are trying to occupy the plaintiff 9 land, the plaintiff alleged that the plaintiff executed agreement of sale in favour of 3rd defendant. Therefore, their names are entered in the Revenue
Records, but the defendants failed to explain how the names of defendant
Nos.4 to 6 recorded as pattadars and possessors. It is clear that the defendants influenced the revenue officials. The defendants are trying to execute documents in favour of the third parties in respect of land admeasuring Ac.332 gts. In support of that, plaintiff filed chief affidavit as
PW1 U/O18 R4(1) CPC by reiterating verbatim what he pleaded in the plaint. Further stated that the Appeal filed by the plaintiff was dismissed on 26.4.2008 and the plaintiff preferred second appeal before the Joint
Collector1, Rangareddy District at Lakdikapool. The same is pending. He also relied on the documents under Exs.A1 to A17.
07.Exs.A1 to A10 are pahanies for the years 199495 to 200405.
Suspension orders passed by the RDO, East Division vide file
No.A2/4405/06 marked as Ex.A11. Certified copy of Form 1B consisting of three pages marked as Ex.A12. Ex.A13 is served copy of application to
MRO, Manchal Mandal dt.31.10.06. Certified copy of ROR Proceedings dt.1.8.2006 marked as Ex.A14. Valuation certificate marked as Ex.A15.
Certified copy of panchanama dt.25.10.2007 is marked as Ex.A16. Memo issued by Tahasildar, Manchal dt.26.2.2009 marked as Ex.A17.
08.The plaintiff also relied on the oral evidence of independent witness who is PW2. He deposed that he know the suit schedule property.
Originally Gulam Jilani was pattadar of suit land and father of the plaintiff 10 named Chithari was protected tenant of the said land. After his death, the plaintiff has been in continuous possession and enjoyment of the suit schedule property. He executed registered sale deed in favour of D.Ravi with an extent of Ac.200 gts. and donated Ac.100 gts. of land for construction of Temples out of Ac.1724 gts. Therefore, the remaining
Ac.1424 gts. in the possession of the plaintiff. PW3 one P.Buggaiah also stated the same facts and his chief affidavit is similar to the chief affidavit filed by PW1. PW4 one M.Maisaiah is also independent witness , his oral evidence is replica to the chief filed by PWs2 and 3.
09.The contention of the defendants is that the plaintiff sold away land an extent of Ac.824 gts. in favour of father of 3rd defendant namely
Nallanagula @ Nallangi Narsi Reddy on 18.5.1968 through unregistered sale deed and he was in possession of the property by cultivating the same till 1993. The plaintiff who obtained 38E Certificate for the total extent of land Ac.1724 gts. but he was not in physical possession of the property.
Infact the 3rd defendant was in actual possession over the said Sy.No.360 and on application of the plaintiff the MRI delivered physical possession under cover of panchayat by evicting Narsi Reddy in respect of the above land. Hence, Narsi Reddy constrained to file O.S.No.66/1994 on the file of
Munsiff Magistrate, Ibrahimpatan, Rangareddy District along with I.A to restrain from causing interference. On hearing both sides, the court held that the possession was already delivered in favour of the Protected Tenant so that injunction cannot be granted against the Protected Tenant. Hence,
I.A was dismissed on 6.10.1999. Subsequently on 6.10.99 the main suit 11 also dismissed in default. Gulam Mohammad preferred an appeal before the Joint Collector against the orders passed by the MRO, Manchal. Since the date of delivery of possession by MRI the plaintiff herein is in possession of the land in Ac.1724 gts. Then the defendant Nos.1 to 3 approached the plaintiff and purchased half share i.e., Ac.832 gts. out of Ac.1724 gts on paying total consideration of Rs.52,800/. The plaintiff executed unregistered sale deed in favour of defendant Nos.1 to 3 on 19.3.1999 and they are in physical possession of the said purchased property. The plaintiff also agreed to execute registered sale deed in favour of 3rd defendant as and when required. Due to case pending between the plaintiff and original pattadar Gulam Mohammad Yousuf the plaintiff did not come forward to execute registered sale deed in favour of defendants 1 to 3. Subsequently at the intervention of the village elders, the matter was compromised in between plaintiff and the original owners. Consequently the defendant
Nos.1 to 3 approached the MRO for mutation. After following the due process, the MRO mutated their names by deleting earlier owner's name i.e., plaintiff. The plaintiff filed appeal before the RDO against the orders passed in favour of the defendant Nos.1 to 3. Initially exparte interim suspension order was granted, the defendants only came to know with regard to entries in the revenue pahanies, the names of defendant Nos.4 to 6 after perusal of the appeal documents filed before the RDO and the defendants not aware how the said entries recorded in pahanies and moreover they are not responsible for entries made by the revenue authorities in their revenue records.
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10.To substantiate the case of the defendants, 3rd defendant filed chief affidavit as DW1 which is replica to the contents of the written statement filed by them and further stated that to usurp valuable property belongs to defendants family by fabricating some documents in collusion with revenue officials even though he alienated the same long back in their favour, the plaintiff filed present suit and he is not entitled for any relief much less equitable relief of declaration. They also relied on the documents Exs.B1 to
B21.
11.Exs.B1 to B3 are the counter in O.S.No.66/94, certified copy of panchanama dt.25.10.93, proceedings issued by MRO dt.15.7.2006 marked through PW1 in his crossexamination. Unregistered sale deed dt.19.3.1999 marked as Ex.B4. Certified copy of 13B Certificate issued by the MRO dt.1.8.2006 is marked as Ex.B5. Certified copy of notice under
Form No.11 issued to the plaintiff by the MRO dt.14.1.2006 marked as
Ex.B6. Certified true copy of the statement recorded by the MRO dt.4.4.2006 marked as Ex.B7. Certified copy of pahanies for the years 196869, 197172, 199091, 199293, 199394 marked as Exs.B8 to B12.
The defendants contended that the plaintiff filed appeal against the mutation proceedings in their favour. The order in the Appeal
No.82/4405/06 dt.26.4.2008 marked as Ex.B13. Certified copy of plaint in
O.S.No.66/94 marked as Ex.B14. Certified copy of decretal order in
I.A.No.337/94 in O.S.No.66/94 dt.10.8.1994 marked as Ex.B15. Original order copy in case No.D5/3645/08 dt.1.8.09 marked as Ex.B21. Pattadar pass books of defendant Nos.1 to 3 marked as Exs.B17 to B19. Certificate 13 issued by Primary Agricultural Cooperative Society dt.21.6.2010 marked as
Ex.B20. Certified copy of 1B Register of Nomula village in respect of the
Katta Nos.697, 503 and 504 consisting of four sheets marked as Ex.B21.
12.Defendants relied on oral evidence of the independent witness who is
D.Govardhan examined as DW2. His oral evidence is that, he know the suit survey No.360 of Nomula village. E.Balraj sold an extent of
Ac.832 gts. in suit survey number. The plaintiff has executed unregistered sale deed on 19.3.1999 in his presence and he acted as one of the attesting witnesses to the said sale transaction. Since the purchase, the defendants are in continuous possession and enjoyment of the property. They also relied on the evidence of DW3 who is also independent witness. His oral evidence is that, at about ten years back Balraj has sold an extent of
Ac.832 gts. in Sy.No.360. Since then the defendants are in possession of the property. He also having land on the Western side of defendants purchased portion of land.
13.On application the Mandal Revenue Officer, Manchal was examined as CW1 and CW2 examined.
14.Heard both sides and the learned counsels for the parties filed detailed written arguments separately. It is much difficult to incorporate the said arguments filed by the plaintiff and defendants. But the important points raised in the written arguments can be taken into consideration. The learned counsel for the plaintiff submitted that the plaintiff proved the case 14 through oral and documentary evidence. More particularly PWs2 and 3 are independent witnesses. Their evidence clear that the plaintiff is in possession of the property admeasuring Ac.1424 gts in Sy.No.360. Ex.B2 is the panchanama in which there is no mention that the land in Sy.No.360 delivered the possession to the plaintiff by evicting Nallanagula Narsi
Reddy. The defendants relied on Ex.B4 unregistered sale deed. The defendants have written over writings after the signature of the plaintiff and it was nowhere mentioned that the possession was delivered to defendant
Nos.1 to 3 as alleged by them. Further in the notice, the date mentioned as 14.1.2006. As a matter of fact, the alleged date 14.1.2006 is Second
Saturday and Sankranthi (Pongal) festival and on that day the Government of AP declared as holiday. But the Tahasildar allegedly issued notice on 14.1.2006 to the plaintiff. Further Tahasildar allegedly recorded statement of plaintiff on 4.4.2006 and in said document MRI signed on 4.6.2006. In this regard it has to be seen that on 4.6.2006 which is to be holiday. The signature of MRI Manchal is crystal clear that the defendants in collusion with revenue officials got created documents with an intention to knock away land an extent of Ac.832 gts. Further the second appeal disposed of on 1.8.2009 with a finding that already the Civil suit is pending and during the pendency of the Civil suit the Revision is not maintainable and directed the parties to the appeal that to await the outcome of Civil Suit and thereafter approached the authorities for appropriate relief under the Act.
15.It is further submission of written arguments that the defendants in their written statement stated that plaintiff is the Protected Tenant and he 15 obtained 38E patta certificate in respect of the suit survey number. But the father of DW1 in O.S.No.66/94 alleged that the plaintiff is neither protected tenant of the suit survey number, nor the 38E certificate issued to him which is contradictory statement. The admissions of the defendants evidence supporting the case of the plaintiff, DW1 specifically admitted that defendant Nos.4 to 6 are no way concerned with the suit land, but
DW1 has admitted that Exs.A7 to A10 in column Nos.12 and 13 are reference of names of defendant Nos.4 to 6. The said entries are without proper documents and collusion with the Revenue Officials. DW1 evidence is also clear that the proceedings issued in favour of the defendant Nos.1 to 3 without proof and without proper verification. He further argued that
Ex.B4 unregistered sale deed not having specific boundaries for the land admeasuring Ac.834 gts. and there is no mention about the delivery of possession. It is allegedly agreed to execute registered sale deed in favour of defendant Nos.1 to 3. As such the alleged document is not unregistered sale deed and it is agreement of sale. If they really paid total sale consideration and possession delivered to them the same has to be reflected in Ex.B4, further DW1 also admitted the same fact that possession was not mentioned in Ex.B4. The signature of the plaintiff obtained on the blank paper and thereafter created the alleged sale document and other documents. The mere admission of the signature on the document by the plaintiff does not amount that he admits the contents on the document. In this regard the plaintiff has proved that the 3rd defendant obtain the signatures of the plaintiff on the blank papers for agricultural land purpose.
As such the burden lies on the defendants to prove that Ex.B4 is genuine 16 and correct one.
16.It is further argued that the MRO has no right to regularise the agreement of sale, as such the said regularization by the MRO is illegal and void. The MRO without following the procedure and rules under ROR Act regularized Ex.B4 proceedings under Ex.B5 and no physical verification was conducted and not examined in adjacent pattadars before regularization.
The issuance of Ex.B4 is illegal and against the principles of natural justice.
As such this court has power to declare the said regularization and issuance of Ex.B5 is illegal. In support of that he relied on the reported citation
2008(4) ALT 126
Sri Bhavana Rushi Cooperative Housing Building Society Ltd., Rep. by its
President D.Bhooma Rajam Vs. Joint Collector, Rangareddy District and
others
wherein it was held that
“An agreement of sale is not an 'alienation' or the 'transfer' of
property, and there was no mechanism provided for under Section
5A, to deal with the agreement of sales, and that Sec.5A provides
for regularization of unregistered sale deeds of alienations, but not
agreement of sales.”
He further argued that the burden lies on the defendants to prove the contents of Ex.B4. In support of that, he relied on reported citation
1998(5) ALT 32
Ministry of Defence, New Delhi and another vs. Indira Devi and another
wherein it was held that
“Sec.103 of the Evidence act provides that the burden of proof as to
any particular fact lies on that person who wishes the Court to
believe in its existence, unless it is provided by any law that the
proof of that fact shall lie on any particular person.”
He further argued that there is no bar to file civil suit for correction of revenue entries. In support of that he relied on 17
2005(6) ALT 152
Singanaboina Mallaiah and others Vs. Singaboina Madhusudhan and
others
wherein it was held that
“Subsection (2) of Section 8 of the Act makes it clear that where a
suit for declaration is filed and a competent civil court declares the
rights of the respective parties, the entries are required to be
corrected, to be inconformity with the decree. Therefore, the plea
raised by the defendants 4 and 5, as to the maintainability of the
suit, cannot be sustained.”
2010 ALT (Rev.) 79
Airabelli Prabhakar Rao Vs. Emmadi Koteshwar and others
wherein it was held that
“Entry made in record of rights – Any person aggrieved by an entry
made in record of rights as regards property in respect of which he
is claiming a right has to institute a suit against the person denying
his title to such right as provided under Sec.8(2) of ROR Act and
obtain a decree to get the entry in record of rights amended in his
favour.”
He further argued that the entries in Revenue Records would not confer any right. In support of that he relied on reported citation
2010 ALT (Rev.) 157 (D.B)
Ande Gangaiah (died) per LRs and another Vs. K.Krishna Reddy and
others
wherein it was held that
“it is now well established that entries in the revenue records would
not confer any right nor would take away any right existing in a
rightful owner.”
He further argued that the contents on execution of Ex.B4 denied by the plaintiff. Therefore the defendants have to prove that the plaintiff signed on that document after knowing its contents. In support of that he relied relied on reported citation
2011(3) ALT 137
Chodi Mahalakshmi Vs. Koppada Sathiraju and another
18 wherein it was held that
“when execution is denied mere proof of signature of the executant
not sufficient. Person relying upon such document must further
establish that executant affixed his signature after knowing the
contents thereof.”
He further argued that for regularization of unregistered sale deed by the MRO, some necessary rules have to be followed by the MRO before declaration, alienation of transfer as valid. In support of that he relied on
2011 ALT (Rev.) 281
Khaja Bee Vs. Joint Collector, Nizamabad, Nizamabad Disrict and others
wherein it was held that
“Sec.5A of the ROR Act contemplates regularization of unregistered
sale by the MRO by declaring such alienation or transfer as valid.
The procedure for dealing with the applications under Section
5A(1) of the ROR act is contained in Subsections (2) to (5) of
Section 5A and Rule 22 of the ROR Rules. As per the procedure,
there are three stages which are to be necessarily followed by the
MRO before “declaring an alienation or transfer as valid under
Section 5A(1)”.
The first stage is issue of notices/notifications in Form Nos.IX, XI
and XII, Notification in Form No.IX shall have to be issued for
calling objections from the persons who are recorded as occupants
in adangal/pahani patrika or in record of rights prepared earlier
by affixing the notification in the village Chavidi in the offices of the
MRO, Gram Panchayat, Mandal Praja Parishad, and by tomtom in
the village. Notification in Form No.XI shall have to be issued to
alienor or transferor mentioning the time and date on which the
MRO proposes to conduct enquiry. Notice in Form No.XII shall have
to be issued to all the persons believed to be interested in the land
specifying therein, date, time and place of enquiry under Section
5A of the ROR act. The second stage is the issue of advisory by the
MRO to SubRegistrar after completion of the enquiry and
recording a finding in favour of the applicant. In such advisory, the
Subregistrar concerned would be requested to advise the value of
the property and fix up the amount to be collected towards stamp
duty and registration fee. The alienee/applicant is required to
deposit through challan in the treasury the amount equal to the
registration fee and stamp duty within one month from the date of
communication of the order passed under Rule 22(4) of the ROR
rules declaring the alienation/transfer as valid. In the third stage,
alienee/transferee will produce the amounts through challan. After
that, the MRO shall issue a certificate in Form No.XIIIB as required
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under Section 5A(4) of the ROR Act. Form No.XIIIC. This contains
the particulars of the land, nature of the transaction, date of the
document under which the transaction took place, market value of
the property as per the basic value register, the amount collected
towards stamp duty and registration fee, and particulars of the
challan in which the amount is remitted into the treasury.”
He further submitted that, the plaintiff established his case and he is entitled for the relief as prayed.
17.The defendants also submitted their arguments that the plaintiff filed to prove the case as PW1 admitted his signature on Ex.B1 and also admitted Ex.B2. PW1 further admitted that he was not in possession of the suit schedule survey number and MRI conducted panchanama on 25.10.1993 and delivered the possession. PW1 did not file any pahani to show that he was in possession of the suit schedule property after death of his father. The same was admitted by PW1, that he never executed alleged document on 19.3.1999 in favour of defendant Nos.1 to 3, the defendant
No.3 had obtained plaintiff's signature in the year 1996 but not for the year 1999 on some of the papers for the purpose of agricultural loan. The same are created by the defendants. The said fact was never pleaded in the plaint and never stated in chief affidavit, but the said contention first time stated by the plaintiff for the purpose of filling up lacunas of his pleadings. There are several admissions in PW1 crossexamination which are supporting the case of the defendants. PWs2 to 4 also admitted that they do not know whether the plaintiff's wife contested for Sarpanch post and PW4 admitted that she do not know whether the defendant purchased Ac.834 gts. CW1 admitted in his crossexamination that the defendant Nos.1 to 3 filed an 20 application under Form No.10 U/s.5A of ROR Act, Form No.10 is printed proforma. Along with Form No.10 defendant Nos.1 to 3 filed a written application. The said marked as Ex.X1(a) dt.1.12.2005. CW1 further admitted that notices were issued and statement of plaintiff also recorded in the presence of Mandal Revenue Officer and the signature of pattadar as well as witnesses were present on the file. After due enquiry, the competent authorities issued proceedings incorporating names of defendant
Nos.1 to 3 in the relevant records. It is settled rule of law that general allegations of fraud is not sufficient to infer liability on the part of those who are said to have committed it. Parties alleging fraud must state a very duplicit case or facts suggesting fraud. In a case of fraud on the part of defendants the onus is on the plaintiff. In view of that the plaintiff is not entitled to the relief as prayed for. In support of that he relied on reported citation
AIR 1952 Mysore 114
Lakshmamma and others Vs. M.Jayaram
wherein it was held that
“It is is his case that he affixed his signature or thumbimpression
on a blank paper on which the document must have been written
later he has to prove that fact. If he fails to do so, the presumption
is against him. At the same time, before any presumption arises
against him, he must have unequivocally admitted that the
signature on the document is his. It is not sufficient i he merely
states he has on some occasion affixed his signature to a blank
paper and the document in question might have been got up with
the help of that document. It may not be necessary for the
defendant to specifically state that his thumb impression or
signature has been taken to the document in question.”
18.Upon hearing both sides and perusal of material available in this case it is pertinent to observe that this suit is filed by the plaintiff for declaration 21 of title. Therefore, heavy burden lies on him to establish title. The ownership of Gulam Jilani for the land an extent of Ac.1724 gts. in
Sy.No.360 and father of the plaintiff namely E.Chathari was protected tenant are admitted facts. Therefore it is needless to extract the contents of the documents or oral evidence to prove that effect.
19.The plaintiff main contention is that the plaintiff is the only one son of Chithari. As such RDO issued 38E Certificate in favour of the plaintiff vide document No.B/428/LRE/1975 dt.26.8.1975. There is no such document field before the court. He further contended that his name was mutated in revenue records as per the above orders and issued pattadar pass book and title deed. Ex.A1 is the pahani for the year 199495. In column No.6 of said pahani it was mentioned that 38E patta for the land an extent of Ac.1724 gts. in Sy.No.360 on the name of the plaintiff. The same reference is continued in pahanies Exs.A2 to A8 for the years 199596 to 200203. The defendants contended that the father of 3rd defendant namely Nallanagula @ Nallagoni Narsi Reddy purchased the above lands from the original pattadar on 18.5.1968 through unregistered sale deed and since then he was in possession by cultivating the said land till 1993.
Meanwhile the plaintiff obtained 38E Certificate that the Sy.No.360 admeasuring Ac.1724 gts through the proceedings dt.26.8.1975. Therefore, it is clear admission that the plaintiff is having 38E Certificate as per the proceedings No.B/428/LRE/1975. The defendant further contended that at the time of issuance of said certificate, the plaintiff is not in physical possession. Infact the father of 3rd defendant was in physical possession of 22 entire land. The MRO delivered the physical possession under cover of panchanama dt.25.10.1993. The same was admitted by PW1 in his cross examination. Therefore it is also clear that the possession was delivered under cover of panchanama under Ex.B2.
20.Ex.B1 is counter affidavit filed by the plaintiff in O.S.No.66/94 marked in crossexamination of PW1. It is reference that in para No.10
Page No.4 of Ex.B1 that the MRO Manchal has delivered the possession of the suit lands in favour of the plaintiff by conducting necessary panchanama bearing process No.A/1420/93 dt.25.10.93 which is Ex.B2 document.
Ex.B2 is also reference that the possession of land in Sy.No.360 to an extent of Ac.1724 gts. was delivered to the plaintiff. Therefore, it is further clear that in view of the proceedings of RDO possession delivered to the plaintiff.
21.The plaintiff further contention is that out of Ac.1724 gts., Ac.200 gts. was sold to D.Ravi through registered sale deed vide document
No.3984/05 dt.11.11.2005 and land an extent of Ac.300 gts. donated to
Beerappa Sway and Mallikarjuna Swamy Temples vide document
No.9423/2006 dt.21.7.2006. The defendants denied the entire para No.2 of the plaint. But nothing was elicited in crossexamination of PW1 that land an extent of Ac.200 gts. sold to D.Ravi and Ac.300 gts. land donated to
Beerappa Swamy and Mallikarjuna Swamy Temples.
22.The plaintiff further contended that he is in possession of the suit 23 schedule property after deducting Ac.500 gts. land as stated above, but in the month of August, 2006 plaintiff came to know that defendant Nos.1 to 3 created some anti dated documents for the land an extent of Ac.832 gts.
out of suit schedule property and obtained mutation proceedings
No.ROR/RS/47/2005 on 1.8.2006. But whereas the defendants contended that when the possession is delivered to plaintiff, the father of 3rd defendant filed O.S.No.66/1994 on the file of Munsiff Magistrate, Ibrahimpatan,
Rangareddy District along with I.A.No.337/1994 for restraining the plaintiff herein from causing interference. The said I.A was dismissed as the plaintiff is protected tenant and against him injunction cannot be granted.
Subsequently, on 6.10.99 the main suit also dismissed in default. The said material clears that the plaintiff is in possession of the property.
23.The defendants further contended that Gulam Mohammad Yousuf son of Gulam Jilani filed appeal before Joint Collector, Rangareddy District against the orders passed by the Mandal Revenue Officer, Manchal since the plaintiff was in possession over the property an extent of Ac.1724 gts. in
Sy.No.360. As there is no other option to defendant Nos.1 to 3, approached plaintiff and purchased half of the land i.e., Ac.832 gts. out of Ac.1724 gts.
for a sale consideration of Rs.52,800/ on 9.3.1999 and physical possession was delivered under unregistered sale deed. The plaintiff also agreed to execute registered sale deed in favour of defendant Nos.1 to 3. Ex.B4 is the said document filed by the defendants. But the plaintiff denied the said execution of document and taken a stand that the 3rd defendant who is working as a Chairman of Agricultural Cooperative Bank at Nomiyal village obtained some signatures of the plaintiff for the purpose of agricultural loan 24 and the said papers used and created alleged agreement of sale and fabricated other documents. Basing on the said documents the defendants in collusion with Revenue Officials created ROR proceedings. The said fact was referred in para No.3 of the plaint. Therefore, now it is germane to decide admissibility of Ex.B4 document.
24.Defendants contended that signature on Ex.B4 was admitted by the plaintiff, as such the burden lies on the plaintiff. Whereas the plaintiff contended that the mere admission of the signature does not amounts that the contents of the said document admitted by the plaintiff. Therefore, it is the burden lies on the defendants as the plaintiff has taken forged defence.
In view of the rival contentions raised by both parties it is also germane to observe that who is responsible to prove the document and on whom the burden lies. While arguing the case the learned counsel for plaintiff relied on reported citation 1998(5) ALT 32, its principle has already referred in the earlier paragraphs that goes to show that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lies on any particular person. It is also observed that the burden of proof lies on he person who asserts the informative of the issue. The said authoritative pronouncement squarely applicable to the present facts of the case. Therefore, the burden lies on the defendants to prove contents of
Ex.B4.
25.The defendants relied on the independent witnesses and attestor of 25
Ex.B4 who examined as DW2. He stated in his chief affidavit that the said document executed in his presence and the defendant Nos.1 to 3 purchased the property, the possession delivered to defendant Nos.1 to 3. But whereas in his crossexamination he admitted that he has signed as attestor and one
Srinu also signed as attestor and he does not know the names of persons who signed on behalf of Balrajm as witness on Ex.B4 and there are no directions mentioned in unregistered sale deed under Ex.B4 and 2nd defendant is scribe of the said document. The other side suggested that he along with Srinivas, Yadaiah, Narsimha, Maisaiah are followers of defendant Nos.1 and 2, so he is deposing false to help the defendants. The same was denied by the witness. Apart from that in Ex.B4 nowhere schedule of property was mentioned. The name of Sunanda was added and put the initial. The same was pointed out by plaintiff that it is nothing but subsequent correction for their convenience. At the time of cross examination of DW1 and also at the time of arguments, it is pointed out that some matter was inserted after the signature of the plaintiff. It shows different writing for the purpose of their convenience. In Ex.B4 it is clear that there are over writings after signature of the plaintiff stating that the possession was delivered. The defendants contended that due to other civil disputes pending at the time of execution of Ex.B4 the original registered sale deed was not executed. Subsequently the cases were compromised at the intervention of elders in between pattadar and plaintiff and 38E
Certificate was confirmed in favour of plaintiff. But there is no steps taken by defendant Nos.1 to 3 to get the registered document from the plaintiff.
On the other hand, they approached the MRO for mutation of their names 26 in the Revenue Records. This happened in the year 2005. whereas Ex.B4 executed in the year 1999. Therefore, there are six years gap in between execution of unregistered sale deed in favour of defendant Nos.1 to 3. There is no proper explanation from the defendants why they kept quiet without getting regular registered sale deed from the plaintiff as he agreed to execute the registered sale deed. There is no other proof filed to show that the plaintiff has given consent to mutate their names in the revenue records. Because defendants taken a stand that due to disputes with owners the regular sale deed was not executed. In such a case nothing was prevented to the defendants to get the consent of plaintiff.
26.While arguing the case, the learned counsel for the plaintiff pointed out that Ex.B4 is not sale deed and it amounts that it is agreement of sale and mutation cannot be effected and such alien is not binding on the plaintiff. Therefore the principle laid down in the reported citation relied by the plaintiff in 2008(4) ALT page 126 squarely applicable to the present facts of the case.
27. The defendants failed to prove that the possession was delivered on the date of execution of agreement under Ex.B4. There is a reference in that the plaintiff can register the document whenever the defendants demand the registration. There is no material or pleadings in favour of the defendants to show that the defendants tried to fulfill the said condition referred in Ex.B4. There is some matter inserted after getting the signature of the plaintiff on Ex.B4. Even the signatures of attestors and scribe of the 27 document were taken on the left side of the margin. From the above observation it is clear that the said document is not genuine document and it is nothing but fabricated by the defendants and collusion of attestors and the scribe. Accordingly this issue is answered.
28.Issue Nos.2 & 3 : While answering the first issue, it is lengthy observation made in respect of title of the property. Another important aspect has to be taken into consideration is, that the Revenue entries made basing on Ex.B4 is binding on the plaintiff. At this stage, the Revenue
Officials who examined as CWs1 and 2 evidence has to be seen. His evidence is that as per the directions, he produced file No.RS/47/2005 and also 1B register. As per the entries in 1B register pertaining to Katta
Nos.609. 610 and 611. The names of Uma Rani (D4), Keerthi and Srilaxmi (D5) were recorded as pattadars in respect of Sy.No.360 an extent of Ac.2 39 gts. each of Nomula village. The photostat copy of the above file marked as Ex.A12. As per 1B register, there is no proof or any details of proceedings were mentioned for the entries made on the names of above three persons.
There is no date of entries and particulars in 1B register. 1B register is in custody of Deputy Tahasildar. The Senior Assistant and VRO are competent persons to make entries in 1B register. There is no signature of Senior
Assistant or VRO on 1B register in respect of those entries and he cannot say who made entries as per the writing available in the 1B register.
Procedure for making entries based on the proceedings issued by the MRO or any competent authority either alienation, transaction or succession transaction. It is the procedure to mention pass book number and title deed 28 number at the place of entries. But there is no such details in the above entries. As per the application made by Ram Reddy and two others under the ROR Act. He started process for issuance of mutation proceedings.
There is no date on the Form No.10, the file consisting of 32 pages marked as Ex.X1. The particulars of witness of unregistered sale deed not mentioned in Form No.10. The photostat copy of unregistered sale deed available in their record. There is no endorsement on Ex.X1 to show that original unregistered sale deed was verified. One Rajkumar worked as previous Tahasildar at the time of passing order under Ex.X1. There is no procedure for verification of physical features of lands prior to issuance of mutation proceedings. There is no proof of document to show that in Ex.X1 the possession was delivered. Form No.11 was issued on 14.1.2006 and
Form No.12 is dt.14.3.2006. There is no signature of VRO or any other witness on Form Nos.11 and 12 to show that the same was served to the parties. Generally the Revenue Inspector or MRO record the statements of parties. There is no proof to show that the entries made as per the Mandal
Revenue Officer passed any file No.RS/47/2005 dt.1.8.2006 the names of the defendant Nos.1 to 3 in 1B register. 1st defendant name entered in
Katta No.97. The 2nd defendant name entered in Katta No.503. 3rd defendant name entered in Katta No.504. The above said Katta numbers previous existing in respect of other lands in 1B register. It is true there is no entries to show that pattadar pass book and title deeds are issued on the name of defendant Nos.1 to 3.
29.CW1 crossexamined by the defendants and it was elicited that as 29 per Sec.5 of ROR Act the implementation of unregistered sale deed is available. Defendant Nos.1 to 3 submitted application that is marked as
Ex.X1(a) which is dt.1.12.2005. It was further elicited that notice was issued to the plaintiff and he was present and his statement was recorded by the MRO. The signatures of the pattadar as well as witnesses were present on the file. However, through DW1 the material was elicited that he produced file No.RS/47/2005 as per entries in 1B register pertaining to the Katta Nos.609, 610 and 611 the names of Uma Rani, Keerthi Reddy and
Srilaxmi who are defendant Nos.5, 6 and another names are in record for the land an extent of Ac.239 gts. in Sy.No.390. It is further noted that the
Senior Assistant and VRO are competent persons to make entries in 1B register, but there is no date of entry, no signature of any Senior Assistant or VRO in respect of those entries and he cannot say who made such entries. Therefore the above evidence clears that there is no proper entry made in the register and CW1 who is competent person unable to say without signatures of concerned authorities how the entries are in the records. His specific admission is noteworthy that is there is no proof of document to show that in Ex.X1 the possession was delivered. It is also clear that Form No.11 was issued on 14.1.2006. It is nothing but Pongal day and it is a public holiday. There is no proper explanation from CW1 or the defendants how on public holiday Form No.11 was issued. Further there is no signature on VRO or any other witness on Form Nos.11 and 12 to show that the same was served to the parties. The entries of names defendant
Nos.1 to 3 in Katta Nos.97, 503 and 504 in favour of defendant Nos.1 to 3 were made. The said numbers already previously existing in other lands in 30 1B register. There is no entry to show that pattadar pass book and title deeds are issued on the name of defendant Nos.1 to 3. In view of the evidence of DW1 it creates a doubt that whether the entries made in the
Revenue Records are in proper way or not.
30.Panchayat Secretary examined as CW2, he did not produce any document but he deposed that during his tenure they have issued pattadar pass book and title deeds in favour of 1st defendant, wife of Ram Reddy and others names are entered in pahanies. As per the statement of the pattadar and following the orders of MRO he issued patta pass book and title deed to them. Witness confronted with Ex.A7 that is 200102 pahani. He admitted the same stating that the same was issued by him. He also admitted that as per orders of MRO the said entries were made. He further stated that there is no mention in Ex.A7 pattadar statement was recorded or the MRO gave direction. In Ex.A12 there is no mention that as per orders of the MRO the names of defendant Nos.4 to 6 are entered. The Revenue Officer Padmasri and in the presence of pattadar the names of defendant Nos.4 to 6 entered into the record. But it is not the case of defendants that the defendant
Nos.4 to 6 purchased the suit schedule property. He further stated that on physical verification defendant Nos.4 to 6 who are shown in the record were in possession of the property. The remaining all suggestions that on influence of defendant Nos.1 and 2 the said entries are made are denied but he admitted that he was under suspension under jurisdiction of Yacharam
Mandal.
31
31.While arguing the case, the learned counsel for the plaintiff relied on reported citation that the plaintiff is entitled to correction of revenue records when they have filed for Declaration of Rights to property and consequential correction of incorrect entries. He relied on citation – 2005(6) ALT 152. The plaintiff is entitled to file a Civil Suit for correction of entries as provided U/s.8(2) of ROR Act and obtained decree to get the entry in Record of Rights amended in his favour. He relied on citation 2010 ALT (Rev.) 79. The Revenue entries would not confer any right or they would take any right existing in rightful owner. He also relied on – 2010 ALT 157 (DB), 2011 ALT (Rev.) 281. He further argued that entry in
Record of Rights is only a piece of evidence in proof of title or possession
before the Civil court and he relied on 2011(5) ALT 564.
32.The above quoted citations and its principles elaborately noted in earlier paragraphs. This court has gone through the above authoritative pronouncement carefully and those principles squarely applicable to the present facts of the case because the evidence of CWs1 and 2 creates ambiguity and there is no clear picture of evidence to show that the competent authorities made the entries in revenue records.
33.Further, the defendants contention is, that notice served to the plaintiff and statement was recorded by the then Mandal Revenue Officer while issuing the proceedings in favour of defendant Nos.1 to 3. CW1 admitted in his crossexamination that pattadar statement was recorded by the Mandal Revenue Officer. The certified copy of said statement was 32 marked as Ex.B7 and it is dt.4.4.2006. The said execution of statement was denied by the plaintiff. Even the presence of Sattaiah at the time of recording the statement was denied. But there is no Sattaiah examined
before the court to prove the execution of statement before the MRO.
When the plaintiff denied the very execution of statement it is the duty of the defendants to prove the same. There is no attestor on Ex.B7, was examined on behalf of defendants. CW1 Mandal Revenue Officer, Manchal is competent person to say about Ex.B7 but Ex.B7 was not confronted to him. However, he admitted that there is an endorsement on the docket sheet that pattadar was attending during the course of enquiry proceedings.
The pattadar was present and his statement was recorded. The material elicited in his crossexamination is supporting the case of defendants. But plaintiff case is that the revenue people colluded with defendant Nos.1 and 2 and mutated the revenue records. Further the very execution of Ex.B4 was decided as it is not genuine document. Therefore, the other material with regard to revenue entries are not taken into consideration. Further the relied citations by the learned counsel for the plaintiff and its principles goes to show that this civil court is competent court to decide the title of the parties and the revenue entries is corroborative piece of evidence but not confer the title over the parties.
34.In view of the above reasons and discussions made in the afore said paragraphs this court arrived at a conclusion that the entries made in the
Revenue Records not taken into consideration. Those can be rectified.
33
35. The plaintiff also claimed possession over the suit schedule property, but the other side denied the same. The relevant records Exs.A1 to A10 showing the possession of the plaintiff. Those are prior to filing of the suit.
Except the entries in revenue records there is no document filed by the defendants to show that they are in possession of the property. Further they relied that there is an appeal pending before the competent authority but it was elicited that the said appeal was disposed off with an observation that “during pendency of Civil suit, the Revision is not maintainable. Hence there is no reason to interfere with the orders of the Revenue Divisional
Officer dt.26.4.2008. Therefore the parties are directed to avoid the outcome of Civil Suit and thereafter approach the recording authority for appropriate relief under the Act.” While discussing Issue Nos.1 and 2 it is also observed that possession of the plaintiff, as there is no proof to show that the possession was delivered as on the date of proceedings issued in favour of defendant Nos.1 to 3. On the other hand, CW1 admitted that there is no proof of document to show that in Ex.X1 the possession was delivered. As such this court safely concluded that the plaintiff is in possession of the property.
36.Issue No.4 : In the result, suit is decreed with costs declaring that the plaintiff is owner and possessor of the suit schedule property and the plaintiff is entitled for Perpetual Injunction restraining the defendants from causing interference in peaceful possession and enjoyment of the plaintiff over the suit schedule property. The plaintiff also entitled for decree for correction of Record of Rights and enter the name of plaintiff as pattadar 34 and possessor in respect of the land admeasuring Ac.827 gts. which is part and parcel of the suit schedule property.
Dictated to the Personal Assistant, transcribed by him,
corrected and pronounced by me in the open Court on this the 10th day of February, 2012.
VIII ADDL.SR.CIVIL JUDGE
RANGAREDDY DISTRICT
APPENDIX OF EVIDENCE
WITNESES EXAMINED ON BEHALF OF PLAINTIFF: PW1 : E. Balraj PW2 : G. Mallaiah PW3 : P. Bugaiah PW4 : M. Maisaiah
WITNESES EXAMINED ON BEHALF OF DEFENDANT: DW1 : N.Ram Reddy DW2 : D.Goverdhan DW3 : P.Maisaiah
CW1 : K.Balram CW2 : M.Thirumal Rao
EXIHIBITS MARKED ON BEHALF OF PLAINTIFF: Ex.A1 : CC of pahani for the year 199495. Ex.A2 : CC of pahani for the year 199596. Ex.A3 : CC of pahani for the year 199697. Ex.A4 : CC of pahani for the year 199798. Ex.A5 : CC of pahani for the year 199899. Ex.A6 : CC of pahani for the year 19992000. Ex.A7 : CC of pahani for the year 200102. Ex.A8 : CC of pahani for the year 200203. Ex.A9 : CC of pahani for the year 200304. Ex.A10 : CC of pahani for the year 200405. Ex.A11 : Suspension orders passed by RDO, R.R.Dist. East Division in File No.A2/4405/06. Ex.A12 : CC of Form 1B consisting of three pages. Ex.A13 : Served copy of the application to MRO, Manchal Mandal dt.31.10.06. Ex.A14 : CC of RO of Proceedings in file No.RR/RS/47/06, dt.1.8.06. Ex.A15 : Market value certificate dt.17.1.07. Ex.A16 : CC of panchanama dt.25.10.07. Ex.A17 : Memo issued by the Tahasildar, Manchal dt.26.2.09.
35
EXIHIBITS MARKED ON BEHALF OF DEFENDANT: Ex.B1 : Counter in O.S.No.66/94. Ex.B2 : CC of panchanama dt.25.10.93. Ex.B3 : Proceedings issued by the MRO dt.15.7.06. Ex.B4 : Original unregistered sale deed dt.19.3.99. Ex.B5 : CC of 13(B) certificate issued by the MRO dt.1.8.06. Ex.B6 : CC of notice under form No.11 issued to the plaintiff by the MRO dt.14.1.06. Ex.B7 : CC of statement recorded by the MRO dt.4.4.06. Ex.B8 : CC of pahani for the year 196869. Ex.B9 : CC of pahani for the year 197172. Ex.B10 : CC of pahani for the year 199091. Ex.B11 : CC of pahani for the year 199293. Ex.B12 : CC of pahani for the year 199394. Ex.B13 : Original order in Appeal No.82/4405/06 dt.26.4.2008. Ex.B14 : CC of plaint in O.S.No.66/94. Ex.B15 : CC of decretal order in I.A.No.337/94, O.S.No.66/94 dt.10.8.94. Ex.B16 : Original order copy in Case No.D5/3645/08 dt.1.8.09. Ex.B17 : Original pattadar pass book D1. Ex.B18 : Original pattadar pass book D2. Ex.B19 : Original pattadar pass book D3. Ex.B20 : Certificate issued by the Primary Agricultural Coop. Society dt.21.6.2010. Ex.B21 : CC of 1B register of Nomula village in respect to Katta Nos.697, 503, 504 (four sheets).
Ex.X1 : ROR Act Form 10. Ex.X1(A) : Application dt.2.23.2005.
VIII ADDL.SR.CIVIL JUDGE
RANGAREDDY DISTRICT
1
IN THE COURT OF THE VIII ADDITIONAL SENIOR CIVIL JUDGE,
RANGAREDDY DISTRICT AT L.B.NAGAR.
Present:Smt.D.Sarala Kumari, M.A., LL.M., VIII Addl.Sr.Civil Judge, Rangareddy District.
On this the 6th day of February, 2012
O.S.No.29 Of 2010
Between:
Smt.A.Shakunthala W/o Bhaskar D/o B.Siddaiah @ Siddi Ramulu aged about 38 yrs. Occ : House wife, R/o.167/1/A, Lakshma Reddy Colony Uppal, Rangareddy District.…Plaintiff
AND
1. B.Siddaiah @ Siddi Ramulu, S/o late Ramaiah, aged 68 yrs. Occ : Retd. Employee
2. B.Vidya Sagar, S/o Siddaiah @ Siddi Ramulu, aged 47 yrs. Occ : Business,
3. Smt.K.Vasantha W/o Veeresham D/o B.Siddaiah @ Siddi Ramulu aged 42 yrs. Occ : House wife, R/o.4126, Gundlagadda, Janagoan Warangal District.
4. Smt.B.Sujatha W/o Nagaiah D/o B.Siddaiah @ Siddi Ramulu aged 40 yrs. Occ : House wife R/o.22114/24, Vijayapuri Colony, Uppal, Rangareddy District.
5. Smt.G. Rama Devi W/o Somaraju D/o B.Siddaiah @ Siddi Ramulu aged about 25 yrs. Occ : House wife, R/o 31101/5, Navodaya Colony, Road No.2, L.B.Nagar, R.R.Dist.… Defendants
This suit is coming before me for final disposal in the presence of Sri M.Venkata Rayudu, Counsel for plaintiff and Sri V.P.Rao, Counsel for 2 defendant Nos.1, 3 to 5 and Sri Bageshwar Rao, Counsel for defendant No.2; and upon perusing the material on record, this court delivered the following:
J U D G M E N T
This suit filed for Partition and Separate Possession.
02.The brief averments of the plaint are that 1st defendant is father of plaintiff and defendant Nos.2 to 5. Plaintiff and defendant Nos.2 to 5 are brothers and sisters. Defendant No.1 retired from Government service as a
Teacher. During his service, he purchased open plot bearing No.713 in
Sy.Nos.46, 47 and 48 totally admeasuring 232 sq.yards situated ate
Peerzadiguda village, Uppal Mandal on the name of his wife's name
Smt.Shiva Lakshmi vide document No.3625/1992 dt.9.5.1992. Thereafter constructed a house bearing No.5100 thereon from his hard earnings on account of love and affection towards his wife. Thereafter the wife of 1st defendant died on 23.5.2005 leaving the plaintiff and defendants as legal heirs. The genealogical family tree of the deceased was given in the plaint.
The marriages of plaintiff and defendant Nos.3, 4 and 5 performed and they are living with their family members at their respective destinations. During life time of Shiva Lakshmi till her death, she used to take care and welfare of plaintiff, defendant Nos.3, 4 and 5 and also defendant Nos.1 and 2 used to cooperate with the deceased. After death of Shiva Lakshmi, defendant Nos.1 and 2 are not taking care of plaintiff and defendant Nos.3 to 5. Hence, the plaintiff made request for partition of the property of her mother in the year 2008, first week of December with defendant No.1. But 1st defendant is not willing and coming forward for partition and to deliver the share of the plaintiff on the instigation of 2nd defendant. The plaintiff came to know in the 3 last week of April, 2009 that the defendant Nos.1 and 2 are trying to alienate the schedule property to the third parties without knowledge of the plaintiff and behind her back. The plaintiff is having legitimate right of 1/6th share in the schedule property. If the defendant Nos.1 and 2 succeed in their attempts in alienating the suit schedule property, the plaintiff will be put to untold hardships and will lose her 1/6th share. On 9.12.2005 the defendant Nos.1 and 2 are negotiating with third parties for alienating of the suit schedule property. Hence, the plaintiff approached the village elders on 11.12.2009 and conducted a panchayat. But the defendant Nos.1 and 2 did not give consent for partition. Therefore, she approached the court for partition in the suit schedule property.
03.On receipt of summons, 3rd defendant filed written statement and the same was adopted by defendant Nos.1, 4 and 5. They admitted the claim of the plaintiff including that 2nd defendant is trying by forcing 1st defendant to alienate the suit schedule to third parties without knowledge of the other defendants and plaintiff, though 1st defendant is coming forward for partition of suit schedule property along with legal heirs of deceased. The mother of the plaintiff, defendant Nos.2 to 5 acquired the suit schedule property and they are undivided Hindu Joint Family members, as such the 2nd defendant is not entitled to alienate the suit schedule property untill and unless partition and separate possession among the legal heirs of deceased. The negotiation held before caste elders, also admitted by them.
4
04.2nd defendant filed separate written statement denying the allegations made in the plaint and taken a stand that the suit is filed by the plaintiff in collusion with the defendant Nos.1 and 3 to 5 with malafide, dishonest and deceptive intention to knock away the suit schedule property which exclusively belongs to the 2nd defendant. They are not having valid right, title or interest, take the advantage of law as incorporated under Hindu
Succession Act and and adopts the method of extortion from a person who is having better title over the properties. 2nd defendant is having every substantial evidence to disprove the claim of the plaintiff invited by her at the behest of 1st defendant and defendant Nos.3 to 5. All are liable for criminal prosecution as they not only suppressed the true facts but also one in the nature of playing fraud and mischief against the court and 2nd defendant.
They are also liable for payment of compensation as prescribed under CPC.
The marriages of the plaintiff and defendant Nos.3 to 5 performed by investing expenditure etc., and this court will decide the issue accordingly, at any point of time either during life time of deceased mother of this defendant or subsequently, there was no demand for partition or the said question does not arise as the suit schedule property exclusively belongs to 2nd defendant which is best known to the plaintiff and other defendants. Hence, for the said reasons as a method of extortion by throwing away natural blood relationship they invented false proceedings before this court against this defendant and laying a false claim which is nothing but illegal and unconstitutional, arbitrary and against the principles of natural justice. The 2nd defendant made suit property out of his hard earning savings. The question of plaintiff 5 and other defendants having 1/6th share in the suit property on par with this defendant does not arise nor the question of alienating the same either by this defendant or the 1st defendant does not arise. On the other hand, it is pleaded that the suit schedule property is on the name of plaintiff's mother and on the other hand, it is alleged that this defendant and 1st defendant are trying to alienate the same to third parties and how they are entitled for, is not explained which clearly shows and indicates the malafide and dishonest intention on the part of plaintiff in laying false claim over the suit property, the active connivance and in collusion with 1st defendant and defendant
Nos.3 to 5. There is no cause of action arose in favour of the plaintiff, nor this court is having any jurisdiction to try the suit and the court fee paid is not hereby disputed as plaintiff is not in joint possession of the suit property with this defendant nor with other defendants. As such, she cannot pay the fixed court fee. The plaintiff is not entitled for 1/6th share. Therefore the suit is liable to be dismissed with exemplary costs.
05.Basing on the contra stands taken by both parties the following issues are settled for trial :
i. Whether the plaintiff is entitled for Preliminary Decree
for partition of the suit schedule property by metes and bounds, allotting 1/6 th share over the suit schedule property
to the plaintiff and remaining to the defendants ?
ii. To what relief ?
06.PW1 examined on behalf of the plaintiff and Exs.A1 to A5 marked.
DW1 examined. No documents marked on behalf of defendant Nos.1, 3 to 5.
6
No oral and documentary evidence on behalf of defendant No.2.
07.Issue No.1: It is the case of the plaintiff that the suit schedule property stands on the name of deceased mother of plaintiff and defendant Nos.2 to 5.
1st defendant is the father of plaintiff. Mother of the plaintiff died on 23.5.2005 intestate by leaving the plaintiff and defendants as her legal heirs.
During the life time of plaintiff's mother, till her death, she used to take care and welfare of plaintiff and defendant Nos.3 to 5 and also defendant Nos.1 and 2 cooperated with the deceased. After her death, defendant Nos.1 and 2 are not taking any care of plaintiff and defendant Nos.3 to 5. Therefore, they demanded the partition of property left by her mother. The plaintiff came to know in the first week of April, 2009 that the defendant Nos.1 and 2 are trying to alienate the suit schedule property. On 9.12.2009 defendant Nos.1 and 2 are negotiating with the third parties for alienating the property. For that on 11.12.2009 panchayat was held in the presence of caste elders, but the defendant Nos.1 and 2 not considered the request of the plaintiff.
08.In support of the plaint pleadings, the plaintiff herself filed chief affidavit as PW1 U/O18 R4(1) CpC by reiterating the verbatim what she pleaded in the plaint. She relied on the documents under Exs.A1 to A5.
Ex.A1 is the registered sale deed vide document No.3625/1992 dt.9.5.1992 stands on the name of mother of the plaintiff. Encumbrance certificate from 20.6.1992 to 15.12.2009 marked as Ex.A2. Valuation certificate marked as
Ex.A3. Electricity bill dt.9.11.2009 stands on the name of deceased Shiva 7
Lakshmi marked as Ex.A4. House plan dt.26.5.2004 issued on the name of
Shiva Lakshmi marked as Ex.A5.
09.Defendant Nos.1, 3 to 5 admitted the claim of the plaintiff. In support of that the 1st defendant examined as DW1 and filed chief affidavit which is replica to the written statement filed by them. 2nd defendant claim is contradictory because, he contended that the suit schedule was purchased by him by his hard earnings and the plaintiff is not having any right over the suit schedule property. There is substantial material placed before the court to support his contention. But whereas PW1 was crossexamined by the learned counsel for 2nd defendant at lengthy and tried to elicit favourable material. But PW1 categorically denied the same. The first part of the cross examination goes to show that the mother of the plaintiff died in the year 2005 and this plaintiff kept quiet from 2005 to 2009 and no demand for partition was made by them. The same was admitted by PW1 and further stated that she do not know whether any panchayat was conducted on 11.12.2009 in the presence of caste and village elders. The marriage of the plaintiff performed in the year 1988 and they are staying separately. Even after marriage of defendant Nos.3 to 5 the plaintiff and defendant Nos.3 to 5 never stayed in the suit schedule property and the same was admitted. The other part of crossexamination with respect to the dowry given to plaintiff and defendant Nos.2 to 5, the same was denied by the witness. The other part of crossexamination is about the monthly earnings of the husbands of the plaintiff and defendant Nos.3 to 5. The last part of the crossexamination, 8 it was elicited that in the year 2001 their father stayed at Chandupally village, initially ground floor was constructed over the suit plot, permission under
Ex.A5 obtained, first and second floors were laid and during the year 2004, 5th defendant marriage was performed. The suggestion that 2nd defendant earned money as he has been doing medical and general store business, from that earrings he maintained family and purchased open plot in the name of the plaintiff's mother under Ex.A1 and obtained permission from the
Peerjadiguda Gram Panchayat and constructed ground floor initially and after that constructed first and second floors with slab after Ex.A5 as 1st defendant stayed in their native village Chandupally till the year 2001 since he left with no money in view of their marriages. The same was denied by the witness.
Other suggestions are like earnings of 2nd defendant. All are denied by the witness.
10.Upon hearing the learned counsel for plaintiff and counsel for the defendant Nos.1 and 3 to 5 and upon perusal of the material in this case it is pertinent to observe that Ex.A1 stands on the name of mother of plaintiff and 2nd defendant also admitted the same but his contention is that the said plot was purchased on the name of deceased from the earnings of 2nd defendant.
The plaintiff substantiated that originally the plot stands on the name of mother of the plaintiff. Subsequently after getting permission, construction was made over the property. The property is joint family property and the said contention was supported by DW1 who is father of plaintiff and defendant Nos.2 to 5. Therefore, the rebuttal burden lies on the 2nd defendant 9 to prove that the suit schedule property was purchased by him from his hard earnings. Except the crossexamination of PW1 no substantial material placed before the court either through oral or documentary evidence to prove that the suit schedule property was purchased by hard earnings of 2nd defendant and constructed the house subsequently from the earnings by running medical and general store. It is the settled principle of law the party should appear into witness box to give oral evidence in support of written submissions made by the party, otherwise adverse inference can be drawn. In the present case, the 2nd defendant has taken several stands in the written statement stand but failed to prove the same.
11.In view of that it is found the suit schedule property stands on the name of deceased Shiva Lakshmi who is mother of plaintiff and defendant
Nos.2 to 5. After her death, plaintiff and defendant Nos.1 to 5 succeeded the same. DW1 admitted in his oral evidence that he purchased the plot on his wife's name and subsequently he made construction as he retired as a
Government Teacher. According to him, the construction of the suit schedule property completed prior to the death of his wife on 23.5.2005. Therefore it is clear that the suit schedule property is the joint family property and treated as joint possession. Accordingly, the contention of 2nd defendant that the court fee paid by the plaintiff is not proper and not taken into consideration.
12.The 2nd defendant contended that the plaintiff kept quiet from the 10 death of their mother i.e., during the year 2005 to 2009 and there is no demand of partition. It is further contention that there was a panchayat held
before the caste elders on 11.12.2009. But whereas PW1 in cross
examination stated that she do not know whether panchayat was conducted on 11.12.2009 in the presence of caste elders. That admission out of her innocency. Therefore, the contention of the 2nd defendant is not taken into consideration. In view of the discussion made in the afore said paragraphs and observations of the material placed by both the parites, this court come to conclusion that the plaintiff proved her case and there is no substantial material to disprove the contention of the plaintiff. Accordingly, this issue answered in favour of the plaintiff.
13.In the result, suit is Preliminarily decreed without costs and the plaintiff is entitled for 1/6th share from the suit schedule property.
Dictated to the Personal Assistant, transcribed by him,
corrected and pronounced by me in the open Court on this the 6th day of February, 2012.
VIII ADDL.SR.CIVIL JUDGE
RANGAREDDY DISTRICT
APPENDIX OF EVIDENCE
WITNESES EXAMINED ON BEHALF OF PLAINTIFF:
PW1 : A.Shakunthala
WITNESES EXAMINED ON BEHALF OF DEFENDANT:
DW1 : B. Siddaiah 11
EXIHIBITS MARKED ON BEHALF OF PLAINTIFF:
Ex.A1 : CC of registered sale deed vide Doc.No.3625/1992 dt.9.5.1992. Ex.A2 : Encumbrance certificate from 20.6.1992 to 15.12.2009. Ex.A3 : Valuation certificate dt.7.10.2009.
Ex.A4 : Electricity bill dt.9.11.2009. Ex.A5 : House plan dt.26.5.2004.
EXIHIBITS MARKED ON BEHALF OF DEFENDANT:
Nil
VIII ADDL.SR.CIVIL JUDGE
RANGAREDDY DISTRICT
1
IN THE COURT OF THE VIII ADDITIONAL SENIOR CIVIL JUDGE,
RANGAREDDY DISTRICT AT L.B.NAGAR.
Present:Smt.D.Sarala Kumari, M.A., LL.M., VIII Addl.Sr.Civil Judge, Rangareddy District.
On this the 6th day of February, 2012
O.S.No.29 Of 2010
Between:
Smt.A.Shakunthala W/o Bhaskar D/o B.Siddaiah @ Siddi Ramulu aged about 38 yrs. Occ : House wife, R/o.167/1/A, Lakshma Reddy Colony Uppal, Rangareddy District.…Plaintiff
AND
1. B.Siddaiah @ Siddi Ramulu, S/o late Ramaiah, aged 68 yrs. Occ : Retd. Employee
2. B.Vidya Sagar, S/o Siddaiah @ Siddi Ramulu, aged 47 yrs. Occ : Business,
3. Smt.K.Vasantha W/o Veeresham D/o B.Siddaiah @ Siddi Ramulu aged 42 yrs. Occ : House wife, R/o.4126, Gundlagadda, Janagoan Warangal District.
4. Smt.B.Sujatha W/o Nagaiah D/o B.Siddaiah @ Siddi Ramulu aged 40 yrs. Occ : House wife R/o.22114/24, Vijayapuri Colony, Uppal, Rangareddy District.
5. Smt.G. Rama Devi W/o Somaraju D/o B.Siddaiah @ Siddi Ramulu aged about 25 yrs. Occ : House wife, R/o 31101/5, Navodaya Colony, Road No.2, L.B.Nagar, R.R.Dist.… Defendants
This suit is coming before me for final disposal in the presence of Sri M.Venkata Rayudu, Counsel for plaintiff and Sri V.P.Rao, Counsel for 2 defendant Nos.1, 3 to 5 and Sri Bageshwar Rao, Counsel for defendant No.2; and upon perusing the material on record, this court delivered the following:
J U D G M E N T
This suit filed for Partition and Separate Possession.
02.The brief averments of the plaint are that 1st defendant is father of plaintiff and defendant Nos.2 to 5. Plaintiff and defendant Nos.2 to 5 are brothers and sisters. Defendant No.1 retired from Government service as a
Teacher. During his service, he purchased open plot bearing No.713 in
Sy.Nos.46, 47 and 48 totally admeasuring 232 sq.yards situated ate
Peerzadiguda village, Uppal Mandal on the name of his wife's name
Smt.Shiva Lakshmi vide document No.3625/1992 dt.9.5.1992. Thereafter constructed a house bearing No.5100 thereon from his hard earnings on account of love and affection towards his wife. Thereafter the wife of 1st defendant died on 23.5.2005 leaving the plaintiff and defendants as legal heirs. The genealogical family tree of the deceased was given in the plaint.
The marriages of plaintiff and defendant Nos.3, 4 and 5 performed and they are living with their family members at their respective destinations. During life time of Shiva Lakshmi till her death, she used to take care and welfare of plaintiff, defendant Nos.3, 4 and 5 and also defendant Nos.1 and 2 used to cooperate with the deceased. After death of Shiva Lakshmi, defendant Nos.1 and 2 are not taking care of plaintiff and defendant Nos.3 to 5. Hence, the plaintiff made request for partition of the property of her mother in the year 2008, first week of December with defendant No.1. But 1st defendant is not willing and coming forward for partition and to deliver the share of the plaintiff on the instigation of 2nd defendant. The plaintiff came to know in the 3 last week of April, 2009 that the defendant Nos.1 and 2 are trying to alienate the schedule property to the third parties without knowledge of the plaintiff and behind her back. The plaintiff is having legitimate right of 1/6th share in the schedule property. If the defendant Nos.1 and 2 succeed in their attempts in alienating the suit schedule property, the plaintiff will be put to untold hardships and will lose her 1/6th share. On 9.12.2005 the defendant Nos.1 and 2 are negotiating with third parties for alienating of the suit schedule property. Hence, the plaintiff approached the village elders on 11.12.2009 and conducted a panchayat. But the defendant Nos.1 and 2 did not give consent for partition. Therefore, she approached the court for partition in the suit schedule property.
03.On receipt of summons, 3rd defendant filed written statement and the same was adopted by defendant Nos.1, 4 and 5. They admitted the claim of the plaintiff including that 2nd defendant is trying by forcing 1st defendant to alienate the suit schedule to third parties without knowledge of the other defendants and plaintiff, though 1st defendant is coming forward for partition of suit schedule property along with legal heirs of deceased. The mother of the plaintiff, defendant Nos.2 to 5 acquired the suit schedule property and they are undivided Hindu Joint Family members, as such the 2nd defendant is not entitled to alienate the suit schedule property untill and unless partition and separate possession among the legal heirs of deceased. The negotiation held before caste elders, also admitted by them.
4
04.2nd defendant filed separate written statement denying the allegations made in the plaint and taken a stand that the suit is filed by the plaintiff in collusion with the defendant Nos.1 and 3 to 5 with malafide, dishonest and deceptive intention to knock away the suit schedule property which exclusively belongs to the 2nd defendant. They are not having valid right, title or interest, take the advantage of law as incorporated under Hindu
Succession Act and and adopts the method of extortion from a person who is having better title over the properties. 2nd defendant is having every substantial evidence to disprove the claim of the plaintiff invited by her at the behest of 1st defendant and defendant Nos.3 to 5. All are liable for criminal prosecution as they not only suppressed the true facts but also one in the nature of playing fraud and mischief against the court and 2nd defendant.
They are also liable for payment of compensation as prescribed under CPC.
The marriages of the plaintiff and defendant Nos.3 to 5 performed by investing expenditure etc., and this court will decide the issue accordingly, at any point of time either during life time of deceased mother of this defendant or subsequently, there was no demand for partition or the said question does not arise as the suit schedule property exclusively belongs to 2nd defendant which is best known to the plaintiff and other defendants. Hence, for the said reasons as a method of extortion by throwing away natural blood relationship they invented false proceedings before this court against this defendant and laying a false claim which is nothing but illegal and unconstitutional, arbitrary and against the principles of natural justice. The 2nd defendant made suit property out of his hard earning savings. The question of plaintiff 5 and other defendants having 1/6th share in the suit property on par with this defendant does not arise nor the question of alienating the same either by this defendant or the 1st defendant does not arise. On the other hand, it is pleaded that the suit schedule property is on the name of plaintiff's mother and on the other hand, it is alleged that this defendant and 1st defendant are trying to alienate the same to third parties and how they are entitled for, is not explained which clearly shows and indicates the malafide and dishonest intention on the part of plaintiff in laying false claim over the suit property, the active connivance and in collusion with 1st defendant and defendant
Nos.3 to 5. There is no cause of action arose in favour of the plaintiff, nor this court is having any jurisdiction to try the suit and the court fee paid is not hereby disputed as plaintiff is not in joint possession of the suit property with this defendant nor with other defendants. As such, she cannot pay the fixed court fee. The plaintiff is not entitled for 1/6th share. Therefore the suit is liable to be dismissed with exemplary costs.
05.Basing on the contra stands taken by both parties the following issues are settled for trial :
i. Whether the plaintiff is entitled for Preliminary Decree
for partition of the suit schedule property by metes and bounds, allotting 1/6 th share over the suit schedule property
to the plaintiff and remaining to the defendants ?
ii. To what relief ?
06.PW1 examined on behalf of the plaintiff and Exs.A1 to A5 marked.
DW1 examined. No documents marked on behalf of defendant Nos.1, 3 to 5.
6
No oral and documentary evidence on behalf of defendant No.2.
07.Issue No.1: It is the case of the plaintiff that the suit schedule property stands on the name of deceased mother of plaintiff and defendant Nos.2 to 5.
1st defendant is the father of plaintiff. Mother of the plaintiff died on 23.5.2005 intestate by leaving the plaintiff and defendants as her legal heirs.
During the life time of plaintiff's mother, till her death, she used to take care and welfare of plaintiff and defendant Nos.3 to 5 and also defendant Nos.1 and 2 cooperated with the deceased. After her death, defendant Nos.1 and 2 are not taking any care of plaintiff and defendant Nos.3 to 5. Therefore, they demanded the partition of property left by her mother. The plaintiff came to know in the first week of April, 2009 that the defendant Nos.1 and 2 are trying to alienate the suit schedule property. On 9.12.2009 defendant Nos.1 and 2 are negotiating with the third parties for alienating the property. For that on 11.12.2009 panchayat was held in the presence of caste elders, but the defendant Nos.1 and 2 not considered the request of the plaintiff.
08.In support of the plaint pleadings, the plaintiff herself filed chief affidavit as PW1 U/O18 R4(1) CpC by reiterating the verbatim what she pleaded in the plaint. She relied on the documents under Exs.A1 to A5.
Ex.A1 is the registered sale deed vide document No.3625/1992 dt.9.5.1992 stands on the name of mother of the plaintiff. Encumbrance certificate from 20.6.1992 to 15.12.2009 marked as Ex.A2. Valuation certificate marked as
Ex.A3. Electricity bill dt.9.11.2009 stands on the name of deceased Shiva 7
Lakshmi marked as Ex.A4. House plan dt.26.5.2004 issued on the name of
Shiva Lakshmi marked as Ex.A5.
09.Defendant Nos.1, 3 to 5 admitted the claim of the plaintiff. In support of that the 1st defendant examined as DW1 and filed chief affidavit which is replica to the written statement filed by them. 2nd defendant claim is contradictory because, he contended that the suit schedule was purchased by him by his hard earnings and the plaintiff is not having any right over the suit schedule property. There is substantial material placed before the court to support his contention. But whereas PW1 was crossexamined by the learned counsel for 2nd defendant at lengthy and tried to elicit favourable material. But PW1 categorically denied the same. The first part of the cross examination goes to show that the mother of the plaintiff died in the year 2005 and this plaintiff kept quiet from 2005 to 2009 and no demand for partition was made by them. The same was admitted by PW1 and further stated that she do not know whether any panchayat was conducted on 11.12.2009 in the presence of caste and village elders. The marriage of the plaintiff performed in the year 1988 and they are staying separately. Even after marriage of defendant Nos.3 to 5 the plaintiff and defendant Nos.3 to 5 never stayed in the suit schedule property and the same was admitted. The other part of crossexamination with respect to the dowry given to plaintiff and defendant Nos.2 to 5, the same was denied by the witness. The other part of crossexamination is about the monthly earnings of the husbands of the plaintiff and defendant Nos.3 to 5. The last part of the crossexamination, 8 it was elicited that in the year 2001 their father stayed at Chandupally village, initially ground floor was constructed over the suit plot, permission under
Ex.A5 obtained, first and second floors were laid and during the year 2004, 5th defendant marriage was performed. The suggestion that 2nd defendant earned money as he has been doing medical and general store business, from that earrings he maintained family and purchased open plot in the name of the plaintiff's mother under Ex.A1 and obtained permission from the
Peerjadiguda Gram Panchayat and constructed ground floor initially and after that constructed first and second floors with slab after Ex.A5 as 1st defendant stayed in their native village Chandupally till the year 2001 since he left with no money in view of their marriages. The same was denied by the witness.
Other suggestions are like earnings of 2nd defendant. All are denied by the witness.
10.Upon hearing the learned counsel for plaintiff and counsel for the defendant Nos.1 and 3 to 5 and upon perusal of the material in this case it is pertinent to observe that Ex.A1 stands on the name of mother of plaintiff and 2nd defendant also admitted the same but his contention is that the said plot was purchased on the name of deceased from the earnings of 2nd defendant.
The plaintiff substantiated that originally the plot stands on the name of mother of the plaintiff. Subsequently after getting permission, construction was made over the property. The property is joint family property and the said contention was supported by DW1 who is father of plaintiff and defendant Nos.2 to 5. Therefore, the rebuttal burden lies on the 2nd defendant 9 to prove that the suit schedule property was purchased by him from his hard earnings. Except the crossexamination of PW1 no substantial material placed before the court either through oral or documentary evidence to prove that the suit schedule property was purchased by hard earnings of 2nd defendant and constructed the house subsequently from the earnings by running medical and general store. It is the settled principle of law the party should appear into witness box to give oral evidence in support of written submissions made by the party, otherwise adverse inference can be drawn. In the present case, the 2nd defendant has taken several stands in the written statement stand but failed to prove the same.
11.In view of that it is found the suit schedule property stands on the name of deceased Shiva Lakshmi who is mother of plaintiff and defendant
Nos.2 to 5. After her death, plaintiff and defendant Nos.1 to 5 succeeded the same. DW1 admitted in his oral evidence that he purchased the plot on his wife's name and subsequently he made construction as he retired as a
Government Teacher. According to him, the construction of the suit schedule property completed prior to the death of his wife on 23.5.2005. Therefore it is clear that the suit schedule property is the joint family property and treated as joint possession. Accordingly, the contention of 2nd defendant that the court fee paid by the plaintiff is not proper and not taken into consideration.
12.The 2nd defendant contended that the plaintiff kept quiet from the 10 death of their mother i.e., during the year 2005 to 2009 and there is no demand of partition. It is further contention that there was a panchayat held
before the caste elders on 11.12.2009. But whereas PW1 in cross
examination stated that she do not know whether panchayat was conducted on 11.12.2009 in the presence of caste elders. That admission out of her innocency. Therefore, the contention of the 2nd defendant is not taken into consideration. In view of the discussion made in the afore said paragraphs and observations of the material placed by both the parites, this court come to conclusion that the plaintiff proved her case and there is no substantial material to disprove the contention of the plaintiff. Accordingly, this issue answered in favour of the plaintiff.
13.In the result, suit is Preliminarily decreed without costs and the plaintiff is entitled for 1/6th share from the suit schedule property.
Dictated to the Personal Assistant, transcribed by him,
corrected and pronounced by me in the open Court on this the 6th day of February, 2012.
VIII ADDL.SR.CIVIL JUDGE
RANGAREDDY DISTRICT
APPENDIX OF EVIDENCE
WITNESES EXAMINED ON BEHALF OF PLAINTIFF:
PW1 : A.Shakunthala
WITNESES EXAMINED ON BEHALF OF DEFENDANT:
DW1 : B. Siddaiah 11
EXIHIBITS MARKED ON BEHALF OF PLAINTIFF:
Ex.A1 : CC of registered sale deed vide Doc.No.3625/1992 dt.9.5.1992. Ex.A2 : Encumbrance certificate from 20.6.1992 to 15.12.2009. Ex.A3 : Valuation certificate dt.7.10.2009.
Ex.A4 : Electricity bill dt.9.11.2009. Ex.A5 : House plan dt.26.5.2004.
EXIHIBITS MARKED ON BEHALF OF DEFENDANT:
Nil
VIII ADDL.SR.CIVIL JUDGE
RANGAREDDY DISTRICT
Order Record 2 total
| Case No. | Parties | Date | Type | Outcome |
|---|---|---|---|---|
| OS/166/2007 | petnm vs Vsresnm | 10 Feb 2012 | Order On Exgibit | Compromised |
| OS/29/2010 | A.Shakunthala vs B.Siddaiah | 06 Feb 2012 | Order On Exgibit | — |
Frequently Asked Questions
How many cases has Smt.D.Sarala Kumari handled?
Smt.D.Sarala Kumari has handled 3 court orders since 2009 at Rangareddy, PDJ Court Complex.
What types of cases does Smt.D.Sarala Kumari hear?
Based on available records, Smt.D.Sarala Kumari primarily handles Civil matters (Original Suits) at Rangareddy, PDJ Court Complex.
Where is Smt.D.Sarala Kumari currently posted?
Smt.D.Sarala Kumari is posted as VIII Addl. Senior Civil Judge at Rangareddy, PDJ Court Complex, Rangareddy, Telangana.
Are judgments by Smt.D.Sarala Kumari available online?
Yes. 3 judgments by Smt.D.Sarala Kumari are available on Legistro with full text, outcome, and sections cited.
Since when is Smt.D.Sarala Kumari serving?
Smt.D.Sarala Kumari has been serving at Rangareddy, PDJ Court Complex since 2009.
Case Types
Posting History
-
May 2009 — Apr 2012VIII Addl. Senior Civil Judge · 3 orders
Outcomes on Record
Other Judges at this Court