1 of 30 O.S.No.522/2005
IN THE COURT OF THE II ADDL. SENIOR CIVIL JUDGE AT WARANGAL
Monday this the 16th day of August 2021
Present:- Sri D.V. Nageswara Rao,B.Com., B.L.,
Principal Senior Civil Judge, Warangal
FAC. II Addl. Senior Civil Judge, Warangal
O.S. No. 522 of 2005
Between:-
1. Byreddy Balaji Rao, S/o. Venkata Ramana Rao, Aged: 35 years, Occ: Business, R/o. H.No.10-42, Huzurabad Village and Mandal of Karimnagar District.
2. Patthi Sammi Reddy, S/o. Linga Reddy Aged:31 years, Occ: Agriculture, R/o. Rayapalli Village of Huzurabad Mandal of Karimnagar District.
3. Patthi Srinivas Reddy, S/o. Linga Reddy, Aged: 29 years, Occ:Agriculture, R/o. Rayapalli Village of Huzurabad Mandal of Karimnagar District. (Plaintif No.2 and 3 were deleted vide Orders in IA No.647 of 2009, Dt.25-11-2013). …Plaintifs.
Vs.
1. Mulkuri Vijender Reddy, S/o.Bakka Reddy, Aged: not known, Occ: Agriculture & Teacher, R/o.#6-2-290, Pinjarla Street, Hanumkonda, Waranal District.
2. Milkuri Sumati, W/o.Vijender Reddy, Aged: not known, Occ: not known, R/o.#6-2-290, Pinjarla Street, Hanumkonda, Waranal District.
3. Chada Bapu Reddy, S/o. Sammi Reddy, Aged: not known, Occ: not know, R/o. #6-2-290, Pinjarla Street, Hanumkonda, Waranal District.
4. Chandupatla Sudheshna, W/o.Janga Reddy, Aged: 60 years, Occ: House-Wife, R/o. #6-2-290, Pinjarla Street, Hanumkonda, Waranal District. …Defendants. -:O:-
This suit came before me on 10-8-2021 for fnal hearing in the presence of Sri K. Krishna Prasad, Counsel for Plaintifs and of Sri L. Jalander Reddy, Counsel for defendants No.1 to 3 and also for Defendant No.4, who has been represented by Sri. K. Venkat Reddy; and upon perusing the material papers on record; and on hearing both side; and having stood over for consideration till this day, this Court delivered the following :-
J U D G M E N T
Initially, the Plaintifs No.1 to 3 together fled the suit against all the defendants for granting perpetual injunction restraining the Defendants from interfering with the possession and enjoyment of the plaintif No.1 over the land ad measuring 350 sq. yards forming part of S.Nos.277/A1, 277/A2 and 277/A3 situated at Lashkar Singaram Village, Hanumkonda
Mandal of Warangal District within the boundaries of, on East 15 feet 2 of 30 O.S.No.522/2005
Municipal Drainage, Road, on West land of Vendors, on North: Land of
Vendors and on South: Plot of P. Sammi Reddy & P. Srinivas Reddy, which is shown as “A” Schedule and also of the plaintifs No.2 and 3 over the land ad measuring 311.11 sq.yards forming part of S.Nos.277/A1, 277/A2 and 277/A3 situated at Laskar Singaram village, Hanumkonda Mandal of
Warangal District within the boundaries of, on East 15 feet Municipal
Drainage and Road, on West: Land of others, on North: Plot of Balaji Rao and on South: House bearing No.2-4-1204, which is shown as “B”
Schedule. Subsequently, during pend-ency of the suit, “A” and “B”
Schedule properties were deleted from the plaint schedule as per the
Orders in I.A.No.660 of 2009, dated 29-8-2011. Also sought injunction against all the defendants restraining them from interfering with the possession and enjoyment of the plaintif No.1 over the land ad measuring 1780 sq.yards (confned for that extent only as per the Orders in
I.A.No.660 of 2009, dated 29-8-2011) forming part of S.Nos.277/A1, 277/A2 and 277/A3 situated at Laskhar Singaram village, Hanumkonda Mandal of
Warangal within the boundaries of, on East: S.No.277 part efected in road, on West: 15 feet Road, on North: Land of Kamaleshwar Rao and
Presidential school and on South: land of B. Balaji Rao & others, shown as “C” schedule and the said land is the subject matter in this suit. (HEREIN
AFTER REFERRED TO AS “C” SCHEDULE PROPERTY)
2.The averments of the plaint as projected by the plaintifs are that the plaintif No.1 is the owner and possessor of the “A” Schedule
Property by virtue of registered sale deed vide doc.No.5835 of 2005, dated 17-7-2005 executed by late Erra Komuraiah, late Erra Mallaiah, late Erra
Seenaiah, Erra Ramesh and Erra Kanakaiah and also of “C” Schedule property by virtue of sale agreement-cum-GPA, vide Doc.No.8933 of 2005,
dated 6-10-2005 executed by the above said persons. The Plaintifs No.2
and 3 are the owners and possessors of “B” Schedule Property by virtue of sale deed vide Doc.No.5836 of 2005, dated 17-6-2005 executed by the above named persons; and that on 9-10-2005, when the plaintifs were 3 of 30 O.S.No.522/2005 getting the thorny shrubs on the schedule properties, all the defendants interfered with the work and also tried to dispossess them and again on 18-10-2005 repeated the same interference, for which on both occasions, the plaintifs could resisted the attempts made by the defendants and that the defendants threatened them without having any manner of right or interest in and title over the schedule properties. Since the defendants are influential persons, the plaintifs fled this suit for injunction.
3.The averments as per the amended paragraph VIII are that about 2 years after fling the suit, the plaintifs No.2 and 3 colluding with the defendants compromised secretly and sold to their nominees and hence, “B” Schedule Property was deleted from the plaint schedule. During pend-ency of the suit on 13/14-5-2008, the defendants represented by the defendant No.4 mislead the plaintif No.1 into hurriedly signing away on a sale deed in favour of “A” schedule property at Hyderabad and got it registered thereat under guise of a proposed compromise and that as the said compromise was failed, the plaintif No.1 was advised to take separate steps and accordingly, “A” schedule property was also deleted vide Orders in I.A.No.660 of 2009, Dated 29-8-2011. Prior to fling the suit, part of plaint “C” schedule property ad measuring 220 sq.yards was sold away by the plaintif No.1 to Pilli Rajeswar vide registered sale deed, but the same was inadvertently in the plaint “C” schedule under an erroneous view that the plaintif No.1 is bound to protect the interests of his purchaser also by fling the suit for injunction in respect of that land also.
On being appraised of the correct view of law, the said land is deleted and it is thus, the plaint “C” schedule property is confned to 1780 sq.yards.
4.Defendants No.1 to 3 on one hand and the defendant No.4 on the other hand are being represented by separate advocates, however, all of them together fled common written statement denying the very title and possession of the plaintifs under sale agreement-cum-GPA on the ground of fabrication and creation. The alleged vendors of the plaintifs are not the owners and have no right to execute the sale agreement-cum-GPA.
4 of 30 O.S.No.522/2005
The boundaries shown in the schedule are not correct and inconstant. The actual boundaries of the schedule property are, on East: 80 feet road, on
West: 15 feet road, on South: plot of Vara Prasad Reddy and on North:
Land of Kamaleswar rao and presidential school. On North side, there is a 10 feet lane in between the presidential school and the suit schedule property running from east to west and on western boundary, there is a house of Smt. Udaya and plot of Vaikuntam. The said property totally ad measuring 2861 sq. yards as shown in the plan annexed to written statement out of which the house property ad measuring 200 sq. yards is in possession of M. Udaya and 180 sq. yards was purchased by Vaikuntam and the remaining 2481 sq. yards is in the possession of defendants within the boundaries of, on East: Drain and 80 feet road, on West: plot of
Vaikuntam and then the house of Smt. Udaya and then 15 feet road, on
South: plot of Varaprasad Reddy and Amanulla Baih and house of Venkat
Reddy and on North: 10 feet road and then the presidential school.
5.Out of 2481 sq. yards, defendants purchased 1815 sq. yards (facing towards east 80 feet road) covered by S.No.276/B of Laskar
Singaram through a registered sale deed vide doc.No.1399 of 1997, dated 14-2-1997 executed by Kusipati Buchamma, who got the same through a family settlement deed, dated 20-11-1969 as the daughter of pattedar,
Erra Peeraiah. The said settlement deed was attested by Komuraiah who is the father of the alleged vendor of the plaintifs. The defendants paid part of sale consideration under the sale transaction to Yadagiri who is the son of Buchamma and he issued a receipt, dated 25-1-1997 attested by Erra
Ramesh, who is also one of alleged vendors of the plaintifs. The plaint schedule property is form part of S.No.276/B, but not in S.No.277/A-1 to
A-3. The defendants raised compound wall fve years back (the basement beam on the ground and then fve feet cement bricks wall) covered by south, north and west and same is now in existence. Behind the said property, i.e., in between 1815 sq. yards and house of Jaypal ad measuring 913 sq. yards. Sri Erra Ilaiah, s/o. Peeraiah sold 733 sq. yards in S.No.276/B 5 of 30 O.S.No.522/2005 to the defendants No.4 and No.2.
6.Erra Ilaiah and Erra Raju threatening the defendants that the land of Ac.0-10 Gts out of 1815 sq. yards fall in S.No.277 and demanded money. On repeated demands, the elders intervened and made the defendants to negotiate and as a result of which, Erra Ilaiah and Erra Raju executed sale cum GPA on 5-8-2005 in favour of the defendant No.4 having received an amount of Rs.3,60,000/-. The defendants got the said document to protect their long standing possession over 1815 sq. yards.
Subsequently, Erra Ilaiah, s/o. Komuraiah along with his son Erra Raju, Erra
Samuel, S/o. Kanakaiah and his son Erra Raju executed the sale deed on 4-10-2005 in respect of sale-cum-GPA, dated 5-8-2005 and ratifed the possession of the Defendants and the same also further ratifed by other brother Sundaram and his son Suresh through ratifed deed, dated 19-12-2005. Claiming right over 733 sq. yards purchased by the defendants No.2 and 4 through sale deed, dated 23-7-2004, Erra Veera
Swamy demanded the defendants to pay money to confrm rights and to protect their possession, the defendants paid amounts to Erra Veera
Swamy on which, the said Veera Swamy executed a sale deed on 1-10-2005 and it is thus, the executants of the documents admitted their possession.
7.It is specifcally averred that the Erra family members are habituated in litigations and colluded with the plaintifs and to knock away the property of the defendants described the suit schedule property as part of S.No.277/A1 to A-3 and all the transactions are well within the knowledge of Erra family members. Recently, the defendants noticed that the sale agreement-cum-GPA relied on by the plaintifs was can-celled by some named vendors on the ground that there was fraud played by the plaintifs against the named vendors by making a false representations.
Some of Erra family members in collusion with the plaintifs got the documents, dated 17-6-2005 and 17-6-2005 for setting up a false claim to extract more money from defendants even-though, the named vendors are 6 of 30 O.S.No.522/2005 not in possession of any of properties. The cause action is imaginary. Erra
Kommalu and two others fled suit in O.S.No.722 of 2004 against Babu
Reddy in respect of this property and same is pending on the fle of Prl.
Junior Civil Judge, Warangal. As the suit of plaintifs is speculative and vexatious, the same is liable to be dismissed with exemplary costs.
8.Basing on the pleadings referred as above and the documents, on 20-12-2013, this court settled the following issues for trail;
1. Whether the plaintif is in possession of suit schedule property ?
2. Whether the plaintif is entitled for permanent injunction, as prayed for ?.
9.During the course of trial, the frst Plaintif No.1 himself is examined as PW-1. Ex.A-1 to A-10 are marked on behalf of the plaintif. On behalf of the defendants, the defendant No.1 is examined as DW-1 while the defendant No.4 as DW-3 respectively along with neighbor to schedule property as DW-2. Ex.B-1 to B-43/A are marked on their behalf. After closure of trail proceedings, the learned counsel representing plaintifs and the learned Counsel appearing for defendants submitted their oral and written arguments.
9 (a). Referring to the evidence of the Defendants' witnesses, the learned counsel for the plaintif No.1 submitted in written arguments that the admissions of DW-1 and DW-2 as regard to the boundaries in the light of the rough sketch itself is sufcient to hold that the plaintif No.1 is the owner and possessor of the “C” Schedule property and therefore, the suit of the plaintif No.1 is entitled for injunction. Referring to paragraphs 13 of the written arguments, the contention of the counsel is that Ex.B-7 to B-9 do not prove the documents as none of the parties thereto are examined
before the court. It is further contention that basing on Ex.A-3, the plaintif
No.1 proved his possession over “C” schedule property as on the date of fling the suit. In the light of the decision of the Hon'ble High Court of 7 of 30 O.S.No.522/2005
Orrissa in AIR 1977 orrissa 152, it is contended that Ex.B-11 to B-42 can not be taken into consideration as those are the documents fled subsequent to the suit. Relying on a decision reported in AIR 2019 SC 2122, it is contended that the revenue records do not confer any title to the Defendants over the property. In the reply written arguments fled by the Plaintif No.1, it is contended that the decision fled by the Defendants in Suraj Lamps and Industries Limited case is not at all support the case of the Defendants and therefore, Ex.A-3 stood proved as regard to possession and is support of the same, he relied upon a decision reported in 2003 AIR
SCW 1251.
9 (b). In the oral arguments submitted on 19-7-2021, the learned counsel, who came on record for the Plaintif No.1 submitted that during pend-ency of suit, the Plaintifs No.2 and 3 colluded with the defendants and therefore, the plaintif No.1 was forced to delete their names along with the “A” and “B” schedule properties from the suit. The land to an extent of 220 sq. yards sold to one Pilli Rajeswar Rao under Ex.B-2 was also deleted and it is therefore, the Plaintif No.1 has restricted his claim for the land ad measuring 1780 sq. yards only. It is further submitted that
Ex.B-2 is also supported the case of the Plaintif No.1 and on the other hand, DW-1 also admitted the correctness of boundaries to the schedule property. Referring to the admission of DW-2, the learned counsel argued that DW-2 not only admitted the correctness of boundaries to the schedule property but also admitted the possession of the Plaintif No.1 and that
DW-3 denied the purchase of property from the Plaintif No.1 and expressed ignorance about all the sale transactions and that apart, the evidence of DW-3 goes against the sale transactions. Referring to photographs covered under Ex.B-3 and 17, it is submitted that merely showing the parked school buses, the defendants can not be allowed to claim possession over the schedule property and hence, the photographs are of no use to the Defendants.
9 (c). In oral arguments submitted on 10-8-2021, referring to page 2 8 of 30 O.S.No.522/2005 and so also clause 9 of Ex.B-1, the learned counsel for the Plaintif No.1 vehemently argued that the recital of Ex.B-1 itself is sufcient to hold that how the defendants used their political and police power and made the
Plaintif No.1 in execution of registered sale deed and that the clear admission of DW-3 as regard to political back ground and therefore, there is every chance of using their influence. Referring to the boundaries shown in Ex.A-1 and B-1, it is argued that the boundaries referred there in are very much important and proves the case of the Plaintif No.1 that he is possession of the “C” schedule property. Referring to Ex.B-4, it is further argued that having obtained the signatures of the Plaintif No.1 under threat, defendants did not fle the same, but brought on record in cross examination of PW-1 and therefore, Ex.B-4 has no legal sanctity and accordingly, it can be omitted from consideration. In the light of Ex.A-3, it is argued that there is no dispute as regard to boundaries on north, south and north, however, due to disputes leaving 10 feet for laying road, the plaintif No.1 raised compound wall. It is further argued that suggestions were given to PW-1 as regard to the compound wall, whereas, DW-2 not only said in his chief examination itself, but also reiterated in cross examination that the plaintif constructed the compound wall and therefore, DW-2 evidence is sufcient to prove case of Plaintif.
9 (d). As per the learned counsel, the dispute is as regard to the land covered by S.No.276 and 277 and the same is well supported by the clear admission of DW-3, however, having purchased the land in S.No.276, the defendants are claiming the land in S.No.277 for which, the Plaintif
No.1 got surveyed and measured the schedule land on three or four times and same proves under Ex.A-6 to A-10. Referring the location map attached to Ex.A-10, it is argued that the location map itself is sufcient to prove the possession of the Plaintif No.1 over “C” schedule property. In spite of expressing ignorance in cross examination of DW-3 in respect of
Ex.B-43/A, the defendants got it marked. Referring the certifed copies of judgment in C.C.No.1042 of 2007 covered under Ex.A-4, it is argued that 9 of 30 O.S.No.522/2005 the learned III additional Junior Civil Judge, Warangal categorically recorded the fndings as regard to the highhandedness of the defendants and therefore, Ex.A-4 itself is sufcient to show as to how the defendants used their influence and it is thus, learned counsel prayed to decree the suit of the Plaintif No.1.
10.On the contrary, the learned counsel for the defendants also submitted oral as well as written arguments. As per the written arguments, relying on a decision reported in 2019 (4) ALD 146, it is contended that the plaintif has to prove his legal possession over the property as on the date of the suit without defending on the weak case of the defendants.
Referring to cross examination of PW-1, dated 30-10-2014, it is contended that when the vendors in Ex.A-3 were died about 15 to 20 years back, the question of execution of Ex.A-3 does not arise at all and therefore, no importance need to be given to Ex.A-3 and that apart, the said document being a mere agreement of sale-cum-GPA, the same is liable to be ignored in the light of the ratio laid down in Suraj Lamp's case. Referring the extents claimed by the Plaintif No.1 based on Ex.A-3 on one hand and the rough sketch map on the other hand, in the light of the boundaries referred in Ex.B-5, 7 to 9 in a t-abler form, it is contended that the plaintif
No.1 is not certainty in the extent of land for claiming the schedule property and that the plaintif No.1 failed to put any questions to defendants' witnesses in respect of the boundaries claimed under Ex.B-5, 7 to 9. Relying on a decision reported in 2014 (5) ALD 385, the learned counsel further contended that when there is a serious dispute as regard to title, it is for the plaintif No.1 to fle a comprehensive suit of declaration but not mere injunction simpliciter. As of reply to the contention of the
Plaintif No.1 on non examination of the party to Ex.B-5, 7 to 9, the learned counsel for the defendants contended that the admissions of PW-1 as regard to Ex.B-1 and Ex.B-4 can be used against him in the light of the ratio laid down in a case reported in AIR 1980 SC 727. It is also contended that the defendant No.1 being the husband of the defendant No.4 is the 10 of 30 O.S.No.522/2005 competent and can rely on the exhibits.
10 (a). During oral arguments submitted on 7-7-2021 through video conferencing, the learned counsel for defendants argued that initially, the
Plaintif No.1 along with two others fled the suit for injunction against the defendants showing A to C schedule property and after the defendants fling their written statement denying the very title and possession over said schedule properties within the boundaries, the Plaintif No.1 got deleted the names of the plaintifs No.2 and 3 so also “A” and “B” schedule properties. As per the learned counsel, on an application by the Plaintif
No.1, the land ad measuring 220 sq. yards is also deleted and therefore, now the Plaintif No.1 is claiming the land ad measuring 1780 sq. yards which is in fact defective. It is further contended that to support his case, the Plaintif No.1 himself alone is examined and got Ex.A-1 to A-3 and except those documents, no other documents are came to be fled and therefore, Ex.A-1 to A-3 are not sufcient to prove the title and possession of the Plaintif No.1. It is further argued that the pahani copy covered by
Ex.A-2 is for the year 2001-02 while Ex.A-3 is for the year 2005-06 and it is thus, there is no nexus between both these documents and therefore, the
Plaintif No.1 can not be allowed to rely on Ex.A-2. Again, relying on a ratio laid down in Suraj Lamp and Industries Limited case reported in 2011 (6)
SCC 737, it is argued that as Ex.A-3 is not a sale deed, hence, the Plaintif
No.1 can not claim title.
10 (b). Referring to cross examination of PW-1, it is argued that PW-1 clearly admitted that the Plaintif No.1 has not fled any other documents except Ex.A-1 to A-3 and not verifed the documents fled by the defendants and that only to avoid the stamp duty, the Plaintif No.1 created Ex.A-3. Referring the admission of PW-1, dated 24-10-2014, it is argued that PW-1 admitted that he came to know that his GPA covered under Ex.A-3 was can-celled vide orders, Dated 19-10-2005, however, within no time from the date of alleged Ex.A-3 and from the date of alleged interference shown as 18-10-2005, the Plaintif No.1 fled the suit on 11 of 30 O.S.No.522/2005 19-10-2005 and therefore, this by itself is sufcient to hold that the
Plaintif No.1 has not approached the court with clean hands. It is further argued that the case of the defendants is that they constructed the compound wall and same is well supported by the admission and his own saying of PW-1 in his cross examination. It is further argued that whatever the names referred in his evidence, PW-1 failed to explain as to why Ex.A-3 does not contain such names. As per the learned counsel, the boundaries relied on by the Plaintif No.1 are one and same for the land covered under
Ex.A-3 and for the land to an extent of Ac.0-32 Gts allegedly possessed by his vendors.
10 (c). The learned counsel for the defendants further argued that as admitted by PW-1, he was working in a wine shop, however, he purchased the property by spending nearly Rs.18,70,000/- and there is no explanation for his fnancial capacity. According to him, the evidence in chief and cross examination of PW-1 is diferent and that he failed to prove the boundaries and extent of the schedule property except changing his version from time to time. As per the learned counsel, the documents particularly the registered sale deeds fled by the defendants are clearly defning the boundaries and would show the possession of the defendants over the schedule property. Referring to Ex.B-2, it is argued that the boundaries shown in Ex.B-2 are correct and same is clearly admitted by
PW-1 and the said Ex.B-2 is part and parcel of 2000 sq. yards claimed by the Plaintif NO.1. Referring to Ex.B-4, it is argued that as the Plaintif No.1 and other dis-mantled the compound wall constructed by the defendants a criminal case is registered in the year 2006 itself and same is sufcient to dismiss the suit in view of clear admission of PW-1 in the light of his clear admission on the execution of Ex.B-1. Referring Ex.B-5 to 10, the learned counsel argued that the defendants purchased the property there under within the boundaries and same are the boundaries referred in the rough sketch map fled by the plaintif No.1 along with the Plaint and therefore, even the property shown in Ex.B-10 for the year 1997 refers the S.No.276 12 of 30 O.S.No.522/2005 and it is not out of place to mention that the boundaries prevail over the survey number or extent.
10 (d). According to the learned counsel for the defendants, PW-1 has not denied Ex.B-1 to B-4 and more over he clearly admitted in cross examination on its execution and therefore, Ex.B-1 to B-4 are sufcient to prove that PW-1 has no title and is not in possession over the schedule property as on the date of fling suit. Referring to Ex.B-43, it is contended that the Plaintif No.1 failed to cross examine the defendants' witnesses and same is a ground to draw an adverse inference against him. Referring to the boundary on western side shown in Ex.B-8 which is the boundary in southern side referred in Ex.B-7 and B-9 and those are much prior to
Ex.A-3, however, the Plaintif No.1 has not disputed the correctness or otherwise of the said documents and therefore, the claim of the plaintif
No.1 based on Ex.A-3 is liable to be rejected. As of explanation to the oral arguments of the Plaintif No.1 on 10-8-2021, the learned counsel for the defendants argued that the defendants never admitted the correctness of boundaries as argued by the learned counsel for the plaintif No.1 but it is only a suggestion and that within (3) days of time from the date of Ex.A-3 the plaintif No.1 created alleged cause of action and fled the suit and same creates a reasonable doubt on the very case of Plaintif No.1.
According to the learned counsel, having fled the suit for injunction, the plaintif has to prove his case on his own strength but here, even though
Ex.B-6 to B-10 clearly showing the possession of the defendants, the plaintif No.1 is trying to rely on the weakness of the defendants and therefore, the suit of the plaintif No.1 is liable to be dismissed. As of a reply, the learned counsel for the plaintif No.1 submitted that during pend-ency of suit, in the year 2008, the purchase of 350 sq. yards under
Ex.B-1 shows the possession of the Plaintif No.1 over “C” schedule property and hence, he is entitled for granting injunction in his favour.
11.Heard the learned counsel for the Plaintif No.1 and for the defendants at length. Perused the written arguments and the other 13 of 30 O.S.No.522/2005 material available available on record.
12.ISSUE Nos. 1 and 2:Both the issues are intertwined with each other and hence this court is inclined to address those two issues simultaneously in order to avoid recapitulation of facts and evidence. This is a suit for injunction simplicitor, where, the title and the possession of the plaintif No.1 over “C” Schedule property by virtue of Ex.A-3, sale agreement-cum-GPA, is seriously disputed by the Defendants and therefore, heavy burden lies on the plaintif No.1 to establish his title and more particularly, possession over “C” schedule property as on the date of fling suit. Basing on the said legal principles, both the counsel submitted their oral and written arguments. The main issue that was framed by this court is, whether the plaintif is in possession over the suit schedule property as on the date of fling the suit. In view of the same, coming to the case on hand, while relying on Ex.A-3, Agreement of sale-cum-GPA,
dated 6-10-2005, the case of the plaintif is that he purchased “C”schedule
property from original owners and ever since from the date of Ex.A-3, he is in possession. On the other hand, while relying on Ex.B-5, C.C of sale
Deed, the case of the Defendants that they purchased the property ad measuring 1815 sq. yards from K. Buchamma and also purchased the property under Ex.B-6 to 10 executed by Erra's Family and ever since from the date of purchase, they are in possession, however, showing the boundaries of their properties, the plaintif No.1 fled the suit with an intention to grab their properties at the instance of some of Erra's family members. Coming to evidence on record, in support of his case, reiterating plaint averments, plaintif No.1 himself alone is examined as PW-1 and got marked Ex.A-1 to A-10. On the other hand, reiterating the contents in written statement, Defendant No.1 and 4 are examined as DW-1 and DW-3 respectively along with one neighboring plot owner as DW-2. Ex.B-1 to
B-43/A are marked on their behalf.
13.Coming to appreciation of evidence on record, stating that the suit schedule property was vacant land even till date, PW-1 admitted in 14 of 30 O.S.No.522/2005 cross examination that the schedule property is bounded by compound wall and denied that the said compound wall was constructed by the defendants. Had really, the saying of PW-1 that the suit schedule property is bounded by the compound wall, certainly, he would have shown the same in the schedule, but even as admitted by him, the schedule property is vacant land till date. Contrary to the said version, stating that there is no compound wall to the schedule property on south side, PW-1 added that the defendants erected the gate to the compound wall. On the other hand, admitting that on southern side to compound wall, a gate is being used by the defendants, PW-1 added that recently, the defendants erected the said gate. Stating that the parking place of Vagdhevi School buses, Vaibhavi
Go-down and watchman room are situated side by side, PW-1 not only admitted but also added that the school buses are being parked in vacant land of suit schedule property. The picture would be made more clear in view of his clear admission basing on Ex.B-3 photographs. Looking into photographs, admitting that the property specifcally located within the compound wall, PW-1 denied the same. Inconstancies in the evidence of
PW-1 found herein before gives an impression that on way or the other he admitted the existence of compound wall around schedule property constructed by defendants. The said version seem to be believed in view his further evidence. Stating that defendants No.1 to 3 along with some others entered into schedule property and disturbed his possession, PW-1 admitted that he did not question them as to why they claimed the schedule property. Had really, some one entered into the property of another, no man like PW-1 would kept quit without questioning on the alleged illegal entry of others.
14.Denying the suggestion that the boundaries of schedule property are not genuine and showing false boundaries in the plaint he is claiming the schedule property, the reasons best known, the Plaintif No.1 failed to refer the correct boundaries of schedule property except giving the same boundaries to “C” schedule property and for the land to an 15 of 30 O.S.No.522/2005 extent of Ac.0-32 Gts said to have been owned and possessed by his vendors and for the land ad measuring 2000 sq. yards referred in Ex.A-3.
As admitted by PW-1, except Ex.A-3, he has not fled any other document to show that he is owner and possessor of “C” schedule property. Having failed to prove his possession over “C” schedule property, PW-1 tried to extract the boundaries from the witnesses examined by the defendants.
During cross examination, admitting that there is land of Varaparasad
Reddy and Amanullah Baig on south side to the schedule property, DW-1 added that a house bearing No.2-4-1204/9-4 belongs to Venakat Reddy is also in existence. DW-1 further admitted that 80 feet road is passing through the lands covered by S.No.276 and S.No.277 and that there is 40 feet road leading to St. Peter's School Cross Road. Looking into the rough sketch map enclosed to the plaint, DW-2 identifed his house and the houses of Varapasada Reddy and Amanullah Baig and also admitted that the sketch map is correct. As a matter of fact, whatever the boundaries shown in the self styled rough sketch map enclosed to plaint are not reflected either in Ex.A-3 or in the suit schedule, however, the plaintif
No.1 tried to rely on the admissions of DW-1 and DW-2 based on the self styled rough sketch map attached to the plaint schedule.
15.Putting on questions and suggestions to DW-1 as regard to
Ex.B-1, 5, 8, 10 and 43/A,and to DW-3 as regard to Ex.B-1, 5 and 43/A, the reasons best known, the plaintif failed to dispute or deny the documents covered under Ex.B-7 to B-9, except Ex.B-8 in cross examination of DW-1 alone.In view of the same, coming to documentary evidence, PW-1 mainly relied on Ex.A-3, Dated 6-10-2005 said to have been executed by Erra
Ilaiah, Erra Samuel, Erra Ramesh, Erra Kanakaiah, Erra Varadaraj, Erra
Narayana and Erra Sunder in his favour for the land ad measuring 2000 sq.yards covered by S.Nos.277/A1, 277/A2 and 277/A3. On the very next date of Ex.A-3, on 7-10-2005, the same said vendors of the plaintif No.1 sold away the land ad measuring 220 sq. yards covered by the same said survey numbers to one Pilli Rajeswar Rao under Ex.B-2. All the said 16 of 30 O.S.No.522/2005 vendors along with Erra Veera Swamy excluding Erra Sunder sold the land ad measuring 350 sq. yards in same said survey numbers to plaintif No.1 under Ex.A-1, Dated 17-6-2005. In all the said documents, there is a specifc mention to the efect that the vendors therein have already transferred the land ad measuring 650 sq. yards. The land ad measuring 350 sq. yards and 311.11 sq. yards shown as A and B Schedule along with the property sold to Pilli Rajeswar Rao under Ex.B-2, subsequently, during pend-ency of suit, were deleted from the plaint schedule on an application made and admitted by PW-1 vide orders in I.A.No.660 of 2009, dated 29-8-2011. It is thus, plaintif No.1 restricted his claim for the land ad measuring 1780 sq. yards only out of 2000 sq. yards covered under Survey numbers viz., 277/A1, 277/A2 and 277/A3.
16.Coming to other transactions by Erra's family, material on record would show that on 5-8-2005 Erra Ilaiah and Erra Raju sold away land to an extent of Ac.0-10 Gts equivalent to 1200 sq. yards in
S.No.277/A1 to the Defendant No.4 under Ex.B-7, Sale Agreement-cum-
GPA with delivery of possession. On 1-10-2005, Erra Veera Swamy sold away the land ad measuring 666 sq.yards in S.No.277/A2 to the Defendant
No.4 under Ex.B-8 and again on 4-10-2005, Erra Ilaiah along with his son
Erra Raju and Erra Samueal along with his son Erra Raju sold away the land ad measuring 1200 sq. yards in S.No.277/A1 to the Defendant No.4 under
Ex.B-9. From the afore transactions, it can be gathered that Erra's family had already sold away the land ad measuring more than 4066 sq. yards covered by S.Nos. 277/A-1 to A-3 much prior to execution of Ex.A-3. In order to know the property owned and possessed by Erra's family, it is just and necessary to have a look at the notarized third party afdavits fled by
Erra Bhaskar, s/o. Erra Babu and Erra Ramesh, s/o. Erra Babu in I.A.No.820 of 2005 in this suit enclosed to Ex.B-43. The said Erra Ramesh is none other than one of vendor under Ex.A-1 and A-3. Both of them supported the very case of defendants on all aspects most particularly, title and possession of the Defendants and construction of compound wall etc., In 17 of 30 O.S.No.522/2005 fact, the said third party afdavits are remained undisputed and unshaken and therefore, the contents thereof are deemed to be admitted as true and correct. In the said afdavits, it is clearly referred the family pedigree of
Erra's family. The entries in the pahani copies fled by both the parties showing the property actually owned and possessed by Erra's Family.
17.Relying on Ex.A-2, true copy of pahani copies for the year 2000-02, the case and admission of PW-1 is that his vendors were having
Ac.0-32 Gts in S.No.277/A1, 277/A2 and 277/A3. Even though, the learned counsel for plaintif No.1 contended that Ex.B-11 to B-14 are not relevant, the entries thereof for the years right from 1985-86, 1990-91, 1995-96 and 2000-01, are well supported the case of the plaintif No.1 in the light of
Ex.A-2 to the extent that his vendors who belong to the Erra's family were having land to an extent of Ac.0-32 Gts. In view of the same, it can be said that Erra's family have had the land to an extent of Ac.0-32 Gts equivalent to 3872 sq. yards only in S.No.277/A1, 277/A2 and 277/A3 in their possession. However, as already pointed out herein before, having sold away their land more than 4066 sq. yards, the third, fourth and ffth generation of Erra's family executed the sale agreement-cum-GPA for the land ad measuring 2000 sq. yards in favour of plaintif No.1 under Ex.A-3.
Except denying the suggestion that the defendants purchased the suit schedule property prior to Ex.A-3, the reasons best known, the plaintif
No.1 has not ofered any explanation as to how the Erra's family is able to transfer the land under Ex.A-3 more than the land actually they have had.
In this context, it is relevant to refer the addition of DW-3. In her cross examination, admitting that the land in S.No.276 and 277 is separated by 80 feet road, DW-3 added that the Plaintif No.1 is not having any land near 80 feet road. In view of the same, the contention of PW-1 basing on
Ex.A-3 that he has title and possession over “C” schedule property, must be disbelieved. From the afore circumstances, it must be held that having sold away their respective properties, Erra's family must have brought
Ex.A-3 into existence, as rightly contended by the learned counsel for the 18 of 30 O.S.No.522/2005 defendants.
18.Even though, Ex.A-3 is found to be doubted, relying on the same, plaintif No.1 sought the relief of injunction for the land ad measuring 2000 sq. yards and subsequently, restricted for the land ad measuring 1780 sq. yards. However, the plaintif No.1 referred the same said boundaries for both the extent of lands and that apart, in cross examination, PW-1 referred the same said boundaries for the land said to have been possessed by his vendors to an extent of Ac.0-32 Gts as shown in Ex.A-2. After lapse of more than (16) years from the date of fling suit, the plaintif No.1 fled the proceedings conducted by the Survey, Land and
Records Department for the land covered by S.No.277 but not
S.Nos.277/A-1 to A-3 and got those documents marked as Ex.A-6 to A-10.
According to panchanama marked as Ex.A-10, the Plaintif NO.1 was shown his land to an extent of Ac.1-37 Gts in S.No.277 and he was also advised to fx the boundaries stones. The location map attached to Ex.A-10, showing ad measuring 1780 sq. yards as referred in the suit schedule. However, the said location map has not been contained the authorized signatory and ofcial seal as contained in the tounch map which is also attached to
Ex.A-10. The said fact has been fairly admitted by PW-1 in cross examination. As a matter of fact, no boundaries have been referred in the punchanama covered by Ex.A-10 for the land to an extent of Ac.1-37 Gts or for the land ad measuring 1780 sq. yards shown as schedule in the suit, of course, the fact of conducting survey is admitted by DW-1 during cross examination. However, it can not be said that Ex.A-6 to 10 are sufcient proof of possession. On the other hand, the entries in Ex.B-18 to B-24 and
B-26 to B-42 supporting the case of the defendants as regard to possession. As a matter of fact, the said documents have not been denied or disputed by the Plaintif No.1 by way of cross examination and therefore, it can be said that Ex.A-18 to B-24 and B-26 to B-42 stood proved. As admitted by PW-1 except Ex.A-3, there is no other document to claim schedule property. For the afore discussion, it can safely be inferred 19 of 30 O.S.No.522/2005 that PW-1 is not sure and confdent about identity of “C” schedule property and same is a good ground to refuse the relief of injunction. It can also be inferred that there was no land in the hands of Erra's family by the date of
Ex.A-3 and therefore, PW-1 can not be permitted to claim title and possession over “C” schedule property merely basing on Ex.A-3 alone.
19.The picture would be made more clear in the light of the boundaries claimed by the parties to the suit by virtue of the registered documents. In the said context, it is just and necessary to have a look at the boundaries referred in Ex.A-3 and in amended plaint schedule and in the self styled rough sketch. Reference is made to the main document covered by Ex.A-3, where under, the boundaries shown for the land ad measuring 2000 sq. yards are, on East: S.No. 277 part efect in road, on
West: 15 feet road, on North: land of Kamaleswhar Rao and on South: land of the plaintif and others. References is also made to amended plaint schedule for the land ad measuring 1780 sq. yards, where under, the boundaries shown are, on East: 277 part efect in road, on West: 15 feet road, on North: land of Makaleswar Rao and Presidential School and on
South: land of the plaintif and others. Whereas, coming to the boundaries referred in self styled rough sketch, the boundaries are, on East: 80 road leading to Ambhedkar Bhavan, on West: 220 sq.yards and then 15 fee road, on North: land of Kamalwswar Rao and presidential school and on south: Plot of Varaprasad Reddy and Md.Amunallah Baig and
H.No.2-4-1204/9-4 of Venkat Reddy and then 40 feet road. From the afore comparisons, made it clear that the fore boundaries for the land 2000 sq.yards and 1780 sq. yards are one and same, however, the plaintif No.1 has not clarifed the same. Curiously, during cross examination, PW-1 gave the same said boundaries for the land to an extent Ac.0-32 Gts said to have been possessed by his vendors as referred in Ex.A-2.
20.On the other hand, the Defendants mainly relied on Ex.B-5 and B-8. Reference is made to Ex.B-5, where under, the boundaries are, on
East: 80 feet road, on West: land of B. Venkat Narsu, on North: land of 20 of 30 O.S.No.522/2005
S. Ilaiah and on South land of Syed Amanullah Baig. Reference is also made to Ex.B-8, where under, the boundaries referred are on East: land in 277/A1 of Defendant No.4, on West: land of Jaypal, on North: 10 feet road and on South: Land of Varaparasad Reddy and others. The said boundaries appears to be tallied with boundaries shown in the rough sketch fled with written statement, wherein, the boundaries shown are, on East: 80 feet road, on West: 15 fee road, on North: presidential school and on South:
Plot of A. Baig & other house of Venkat Reddy and then 40 feet Road. On the other hand, surprisingly, without basis or explanation, PW-1 referred the same said boundaries in his self styled rough sketch fled with Plaint.
There is no material on record as to show how PW-1 is claiming the land within the said boundaries even though the boundaries referred in Ex.A-3 are diferent and distinct from the boundaries claimed by him basing on the rough sketch map. A combined reading of Ex.B-5 and B-8 coupled with the self styled rough sketch fled with written statement on one hand and the boundaries referred in Ex.A-3 coupled with self styled rough sketch fled with the plaint on the other hand, made it crystal clear that PW-1 failed to show his lawful possession over the land within the boundaries as shown in Ex.A-3 or in self styled rough sketch fled with plaint. From the afore discussion, referring to well settled legal principles that the boundaries prevail over the extent, survey number and plot number, the contention of the learned counsel for the defendants must be accepted.
21.From the above discussion, made it clear that PW-1 is found to be failed to establish his lawful possession over “C” schedule property as on the date of suit. However, referring to the contents at page 2 and clause 9 in Ex.B-1 and B-4 and so also the admissions of DW-3 on their political back ground, the plaintif No.1 tried to contend that by using political and police influence, defendants are trying to knock away “C” schedule property. The argument of learned counsel for plaintif No.1 that having used their political and police influence, the defendants forcibly made PW-1 to execute Ex.B-1, appears to be somewhat convincing in the 21 of 30 O.S.No.522/2005 light of the recitals in Ex.B-1. However, it is to be pointed out that having admitted that he sold away the land ad measuring 350 sq. yards to defendant No.4 under Ex.B-1, the reasons best known, PW-1 failed to explain the circumstances under which he was forced to execute Ex.B-1 in favour of defendant No.4 except giving formal suggestions and therefore, no importance need to be given to said suggestion in view of elicitations and suggestions in the evidence of DW-1 and DW-3. Admitting that after fling the suit, they compromised the matter and paid Rs.4,00,000/- to the
Plaintif under Ex.B-1 and obtained registered sale deed, DW-3 denied that having purchased the property under Ex.B-1 she is deposing false.
Referring to Ex.B-4, it is argued that having obtained the signatures of plaintif No.1 on Ex.B-4 forcibly, the defendants failed to fle the same
before the court except brought it on record during cross examination of
PW-1. In this context also the plaintif No.1 failed to ofer any explanation as to what prevented him to put on questions or suggestions to the defendant's witnesses, however, PW-1 admitted the compromise arrived thereat between them as in Ex.B-4. In view of the same, it must be held that the contention of the Plaintif No.1 is liable to be rejected. Even assuming the contention of the learned counsel for the plaintif No.1 is believed to be true and correct, as already pointed out herein above, there is no material on record to support the case of the plaintif No.1 that “C” schedule property is within the boundaries referred to in Ex.A-3, except strongly relying on a self styled rough sketch attached to plaint schedule and the elicitations from the evidence of DW-1 and DW-2 basing on such self styled rough sketch.
22.Ex.A-4, is Certifed Copies of judgment in C.C.No.1042 of 2007 while Ex.B-15 is the Certifed copies of FIR in Crime No. 178 of 2006 and
Ex.B-16 is the Certifed Copies of Charge sheet fled therein, which are the basis for disposal of the case as in Ex.A-4. Referring to Ex.A-4 on one hand and the admissions and own saying of DW-2 on the other, it is contended that the fndings in the criminal case itself is sufcient to show the conduct 22 of 30 O.S.No.522/2005 of the defendants as to how they used their political and police influence.
Drawing the attention of this court through own saying and admission of
DW-2 in chief as well as cross examination as regard to construction of compound wall around the schedule property, the plaintif No.1 failed to explain as to who actually constructed the compound wall. However, the same appears to be clarifed in the light of his evidence. PW-1 not only admitted but also voluntarily added in his cross examination itself that the
Defendants constructed the compound wall and erecting a gate using it.
This piece of evidence of PW-1 itself is sufcient to hold that the defendants must have constructed the compound wall and erecting a gate used it. When that being so, no importance would be given to the admission of DW-2 who is a third to the suit. Be that as it may, it is needless to add that fndings in a criminal case can not bind on civil court.
Even other wise, basing on Ex.B-1, B-4 and A-4, the contention of the learned counsel for the plaintif No.1 is assumed to be true and correct, he can not be permitted to claim title and possession over “C” schedule property in the light of the discussion made as above in respect of the documentary evidence and inconstancies in the boundaries.
23.In view of the above discussion, it is just and necessary to refer paragraph 6 in a decision relied on by the learned counsel for
Defendants, in a case of G. Ramanaiah Vs. K. Krishnaiah reported in 2019 (4) ALD 146 and the same is extracted here under below; “ 6. When the suit is fled by the respondent/Plaintif for injunction simplicitor, it is for him to establish that he is in lawful possession and enjoyment of the property as on the date of fling suit and that the defendants or his men are trying to infringe or invade the legal right of the plaintif, it gives to cause of action for fling a suit for injunction simplicitor. The plaintif has to prove his positive case by adducing independent evidence and the plaintif is not entitled to take advantage of the weakness of the defense of the defendant. Therefore, it is for the plaintif/respondent herein to establish his lawful 23 of 30 O.S.No.522/2005 possession andenjoyment of the property as on the date of fling the suit. It is also alleged that an attempt was made by the petitioner/defendant to infringe or invade the legal right. But the petitioner/defendant is not required to establish his lawful possession and enjoyment by adducing positive evidence before the court”
24.The ratio laid down in the above decision cited by Defendants, appears to be applicable to the facts and circumstances of the case on hand. Here in this case also, the plaintif No.1 failed to establish his title and possession over “C” schedule property as on the date of fling suit in the light of the discussion made as above on document and boundaries, however, it appears that the plaintif No.1 is trying to rely on the weakness of defense of the defendants in the oral evidence. Be that at it may, if at all, the entire evidence whatever adduced by the defendants is omitted from consideration for a while as contended by the plaintif No.1, still, it is for the plaintif No.1 to establish his legal possession over “C” schedule property as on the date of suit and without depending on theweakness of the defense of the defendants. That apart, referring the suggestions given to PW-1 on one hand and DW-3 on the other hand, the dates which gave cause of action to fle the suit appears to be doubted in the light of the orders of this court during pend-ency of the present suit in I.A.No.647 of 2009, dated 25-11-2013 for deleting the plaintifs No.2 and 3 and so also deleting “A” and “B” schedule properties as per orders in I.A.No.660 of 2009, dated 29-8-2011. It is thus, the plaintif No.1 is found to be dis-entitled to claim injunction merely basing on Ex.A-3 and therefore, in view of the ratio laid down in the above decision, plaintif No.1 is not entitled for seeking injunction.
25.Relying on a decision of Hon'ble High Court of Orrissa in AIR 1977 orrissa 152, having contended that as Ex.B-11 to 43 are subsequent documents to the suit, the same can not be considered, the Plaintif No.1 tried to rely on the proceedings of survey Department marked as Ex.A-6 to
A-10 which are also subsequent documents to the suit. If at all the said 24 of 30 O.S.No.522/2005 contention of the plaintif No.1 is accepted to be true and correct, then it is for him to explain as to how he is entitled to claim the proceedings conducted by survey Department covered by Ex.A-6 to A-10 in spite of the undisputed transactions covered by Ex.B-7 to B-9. In view of the same, relying on the principles laid down in the above decision submitted by plaintif No.1, the proceedings covered by Ex.A-6 to 10 also can not be considered. If at all, Ex.A-6 to 10 are taken into consideration on its face value, there is no explanation from PW-1 as to know whether his claim is in respect of the land covered by Ex.A-3 or for the land referred in the suit schedule or for the land to an extent of Ac.1-37 Gts in S.No.277 as referred in Ex.A-10. That apart, the location map which as already pointed out herein before, does not contain the ofcial signature or seal even as admitted by PW-1 and it is thus, creates a reasonable doubt on the very conduct of the Plaintif No.1. In this view of the matter, it must be held that the Plaintif No.1 has not approached the court with clean hands in claiming equitable relief of injunction and same is also a good ground to refuse in granting injunction in his favour.
26.The contention of the plaintif No.1 that during pend-ency of the proceedings in the suit on 13/14-5-2008, the defendants represented by the defendant No.4 mislead the plaintif No.1 into hurriedly signing away on a sale deed in favour of “A” schedule property at Hyderabad and got it registered under guise of a proposed compromise, is assumed to be true and correct for the sake of arguments, it is for him to explain as to how, his vendors, who belonging to Erra's family executed Ex.A-3 in spite of the undisputed transactions covered under Ex.B-7 to 9 that were taken place much prior to the date of execution of Ex.A-3. The prior transactions are viz., on 5-8-2005 Erra Ilaiah and Erra Raju sold away the land to an extent of Ac.0-10 Gts equivalent to 1200 sq. yards in S.No.277/A1 to the defendant No.4 under Ex.B-7, Sale Agreement-cum-GPA with delivery of possession; and on 1-10-2005, Erra Veera Swamy sold away the land ad measuring 666 sq.yards in S.No.277/A2 to the defendant No.4 under 25 of 30 O.S.No.522/2005
Ex.B-8 and again on 4-10-2005, Erra Ilaiah along with his son Erra Raju and
Erra Samueal along with his son Erra Raju sold away the land ad measuring 1200 sq. yards in S.No.277/A1 to the defendant No.4 under
Ex.B-9. In view of the afore transactions, if the contention of the plaintif
No.1 that the defendants forced him to sign on a sale deed under guise of compromise, is believed to be true and correct, it is for him to explain as to what prevented him in denying the transaction covered under Ex.B-7 to
B-9. As a matter of fact, the clear admission of PW-1 that they compromised the matter, is corroborated from the recitals in Ex.B-4 which has been marked during his cross examination itself. In view of the same, the contention of the Plaintif No.1 that by using political and police force, the Defendants made the Plaintif No.1 to execute Ex.B-1 and B-4 can be branded as an attempt made by him to suppress the material facts before the court and same is also a good ground for rejecting the equitable relief of injunction in favour of Plaintif No.1.
27.As per as the case law cited by the parties to the suit is concerned, having referred as many as (11) decisions in written arguments, the learned counsel for the plaintif No.1 submitted full texts of
AIR 1977 Ori 152, 2003 AIR SCW 1251, 2009 (3) ALD 416 and AIR 2019 SC 2122 only. The decision in AIR 1977 Ori 152 is already discussed at para
25. In a case of Chief Conservator of Forest, Govt of AP Vs. Collector and
Others, reported in 2003 AIR SCW 1251, referring the provisions under
Section 110 of the Indian evidence Act at para 18, their lordships of
Hon'ble Supreme Court held at para 19 that, “It embodies the principle
that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebut-table, is attracted when the possession is prima facie lawful and when the contesting party has no title”. In view of the afore principles, coming to the case on hand, by virtue of discussion made as above, most particularly referring the documents covered by Ex.A-1, B-2 and B-7 to B-9 and so also as regard to the 26 of 30 O.S.No.522/2005 boundaries, it is found that the plaintif No.1 failed to establish his lawful possession over “C” schedule property as on the date of fling the suit.
Therefore, the principles laid down in the above decision is of no use for the case of the Plaintif No.1.
28.The next case law cited by the plaintif No.1 is, in a case between Kurella Naga Druva Vudaya Bhaskara Rao Vs. Galla Janikamma @
Macharamma, 2009 (3) ALD 416. It is the case where, referring to Section 16 and 17 of AP (AA) Tenancy Act, 1956 relating to an issue of land lard and tenancy, his lord ship of Hon'ble High Court of AP at Hyderabad pointed out the jurisdiction of the Tahasildar. Here, the facts of the case are diferent where, claiming the title and possession, the Plaintif No.1 simply relied upon Ex.A-3 without establishing the extent and boundaries of schedule property. It is thus, the ratio laid down in the afore said decision is of no use to the case of Plaintif No.1. In another case between
Ajit Kaur Vs Darshan Sing, AIR 2019 SC 2122 relied upon by the learned counsel for the plaintif No.1, their lordships held at para 14 that, “It is a settled possession of law that the mutation of a property in the revenue records are fscal proceedings and does not create or extinguish title nor has it any presumptive value on title.....”. Coming to the case on hand, relying on Ex.A-3 alone, the Plaintif No.1 claimed his title and possession over “C” schedule property, however, same is found to be doubted in the light of discussion made as above in respect of the documents and boundaries. On the other hand, the Defendants not only relied on the revenue records covered by Ex.B-18 to B-24 and B-26 to B-42 but also relied on registered documents covered by Ex.B-1, B-5, B-6 to 10 and B-43/
A. However, centering on Ex.B-5 and 43/A, the Plaintif No.1 not only failed to dispute the registered documents covered under Ex.B-7 to B-9 but also failed to establish his lawful possession or title over “C” schedule property except contending that the pahani copies fled by the Defendants covered by B-11 to 42 are subsequent to fling the suit and can not be considered in the light of principles laid down in AIR 1977 Ori 152 which has already 27 of 30 O.S.No.522/2005 been discussed. For the afore reasons, the principles laid down in the said decision is also not useful to the case of Plaintif No.1.
29.Coming to the case law cited by the Defendants, the case between G. Ramaiah Vs. K. Krishnaiah reported in 2019 (4) ALD 146, is already taken up for discussion at the paragraphs 24 and 25. As per as the case of Suraj Lamps and Industries Limited reported in 2011 (6) SC 737 is concerned, the learned counsel for defendants contended that Ex.A-3 is being a agreement-cum-GPA, same can not be considered. In this context, it is just and relevant to note the fact that aggrieved on marking of agreement-cum-GPA as Ex.A-3, the Defendants preferred a revision in
C.R.P. No. 2704 of 2017, dated 17-8-2017, wherein, referring the settled principle of law at para 9 that if an agreement of sale is coupled by payment of full sale consideration and delivery of possession, said document has to be treated as sale deed and appropriate stamp duty as required by Indian Stamp Act has to be paid for the purpose of registration of such document and admissibility of such document in evidence, his lordship held at para 12 that, “.......Having regard to these facts, I do not see any error in the decision of the trail court overruling the objection raised by the petitioners to mark the Document, dated 6-10-2005 as exhibit warranting interference by this court. Revision deserved to be dismissed.....”. Having not been challenged the said orders, the same is became fnal. In view of the same, the principles laid down in Suraj Lamp's case is of no use for the case of the defendants.
30.The decision of Hon'ble Supreme Court in a case of Bhim
Singh (dead) by L.Rs. & another Vs Kan Singh Respondent Kan Singh reported in AIR 1980 SC 727, is not applicable to the case of the defendants as the facts and circumstances in the given case are diferent and distinct from the facts and circumstances in the present case.
Referring to paragraph 11 in a decision of Hon'ble High Court of AP at
Hyderabad in a case of Sudhakara Reddy Vs. Lakshmamma reported in 2014 (5) ALD 385, the learned counsel for defendants contended that in 28 of 30 O.S.No.522/2005 spite of serious dispute as regard to title, the Plaintif No.1 fled the suit for mere injunction and therefore, in view of the ratio laid down in the afore decision, the suit of the plaintif No.1 is liable to be dismissed. In the said decision, his lordship referred the citation of the Hon'ble Supreme Court in a case of Ananthula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033, wherein, the position in regard to suits for injunction relating to immovable property is summarized at paragraph 17 and Clause (b) thereof is relevant for the case on hand. Clause (b) reads thus, “as a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the fnding on possession. But in cases where de-jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a fnding thereon, it will not be possible to decide the issue of possession”.
31.In view of the clause (b) extracted as above, coming to the case on hand, there is no dispute that an vacant site has been shown as “C” schedule property. It is also not in dispute that relying on Ex.A-3, the plaintif No.1 fled suit of mere injunction, claiming his title and possession over “C” schedule property, however, by virtue of discussion made as above, Ex.A-3 is found to be doubted as regard to extent and boundaries of the schedule property and so also the legal right of the vendors in execution of Ex.A-3 in favour PW-1 and same has not been clarifed by the
Plaintif No.1. On the other hand, the Defendants are able to establish the fact that “C” schedule property is not within the boundaries referred in suit schedule and that the Plaintif NO.1 has not fled any other document except relying on a self styled rough sketch map. It is thus, the title of the
Plaintif No.1 is not simple and clear based on Ex.A-3. Therefore, when the
Plaintif No.1 is found to be failed to prove his title over “C” schedule property based on Ex.A-3, it is not possible to held that PW-1 is in possession and enjoyment over “C” schedule property as on the date of 29 of 30 O.S.No.522/2005 suit. In the light of the principles laid down in a decision of Ananthula
Sudhakar's case, it must be held that the plaintif No.1 is not entitled for seeking injunction over “C” schedule property. From the afore discussion, it must be held that issue No.1 and 2 are answered against the plaintif No.1 and in favour of the defendants.
32.By virtue of discussion made as above and fndings arrived thereat in respect of the issues No.1 and 2, it must be held that having fled the suit for mere injunction for open site, the plaintif No.1 failed to establish that he has title and he is in lawful possession and enjoyment over “C” schedule property as on the date of suit and that the defendants are trying to invade his legal right. In view of the same, plaintif No.1 is not entitled for granting injunction and therefore, the suit of the plaintif No.1 is liable to be dismissed.
33.In the result, the suit is dismissed with costs.
Typed dictation to the steno-typist, corrected and pronounced by me in the open Court on this the 16th day of August 2021.
Sd/-
(Sri D.Veera Nageswar Rao)
FAC. II ADDL. SENIOR CIVIL JUDGE
WARANGAL
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintifs: For Defendants: PW-1: Byreddy Balaji Rao. DW-1: Milkury Vijender Reddy. DW-2: Gudi Venkat Reddy. DW-3: Ch. Sudeshna.
EXHIBITS MARKED
For the Plaintifs: Ex.A-1: C.C. of Registered sale Deed, Dated 17-6-2005. Ex.A-2: C.C. of Pahani Copy for the year 2001-02. Ex.A-3:Agreement of sale-cum-GPA, Dated 6-10-2005. Ex.A-4: C.C. of Judgment in C.C.No.1042 of 2007, Dated 5-5-2011. Ex.A-5:Computer generated copy of sale deed, Dated 27-2-2013. Ex.A-6: Memo dated 21-09-2019. Ex.A-7: Notice dated 04-07-2019. Ex.A-8: Original notice dated 04-09-2019. Ex.A-9: Application, dated 27.04.2019 by the plaintif. Ex.A-10: Attested copy of panchanama, dated 26-09-2019 along with panch and location sketch.
30 of 30 O.S.No.522/2005
For the Defendants: Ex.B-1: C.C of Registered Sale Deed, Dated 13-5-2008. Ex.B-2: C.C of Registered sale Deed, Dated 7-10-2005. Ex.B-3: Photograph along with CD. Ex.B-4: Withdrawal Memo fled by the Plaintif No.1. (B-1 to B-4 are marked through PW-1 during cross examination). Ex.B-5: Registered sale Deed, Dated 14-2-1997. Ex.B-6: Receipt, Dated 25-1-1997 executed by K. Yadagiri. Ex.B-7: Regd. Sale agreement-cum-GPA, Dated 05-08-2005. Ex.B-8: Regd. Sale Deed, Dated 1-10-2005 registered on 7-12-2005. Ex.B-9: Regd. Sale Deed, Dated 4-10-2005 registered on 7-12-2005. Ex.B-10: Regd. Sale Deed, Dated 23-7-2004. Ex.B-11: C.C of Pahani for the year 1985-86. Ex.B-12: C.C of Pahani for the year 1990-91. Ex.B-13: C.C of Pahani for the year 1995-96. Ex.B-14: C.C of Pahani for the year 2000-01. Ex.B-15: C.C. of FIR with complaint, Dated 23-04-2006. Ex.B-16: C.C. of Charge sheet in C.C. No.180 of 2007. Ex.B-17: Orders in Crl.M.P.1689 of 2010, Dated 29-12-2010. Ex.B-18: Mee seva Pahani for the 1420 Fasli, Dated 9-10-2017. Ex.B-19: Mee seva Pahani for the 1420 Fasli, Dated 9-10-2017. Ex.B-20: Mee seva Pahani for the 1421 Fasli, Dated 9-10-2017. Ex.B-21: Mee seva Pahani for the 1422 Fasli, Dated 9-10-2017. Ex.B-22: Mee seva Pahani for the 1427 Fasli, Dated 08-10-2017. Ex.B-23: Mee seva Pahani for the 1427 Fasli, Dated 08-10-2017. Ex.B-24: Mee seva Pahani for the 1427 Fasli, Dated 08-10-2017. Ex.B-25: (17) a Bunch of Photographs. Ex.B-26: Mee seva Pahani for the 1423 Fasli, Dated 9-10-2017. Ex.B-27: Mee seva Pahani for the 1424 Fasli, Dated 9-10-2017. Ex.B-28: Mee seva Pahani for the 1425 Fasli, Dated 9-10-2017. Ex.B-29: Mee seva Pahani for the 1426 Fasli, Dated 9-10-2017. Ex.B-30: Mee seva Pahani for the 1420 Fasli, Dated 9-10-2017. Ex.B-31: Mee seva Pahani for the 1421 Fasli, Dated 9-10-2017. Ex.B-32: Mee seva Pahani for the 1422 Fasli, Dated 9-10-2017. Ex.B-33: Mee seva Pahani for the 1423 Fasli, Dated 9-10-2017. Ex.B-34: Mee seva Pahani for the 1424 Fasli, Dated 9-10-2017. Ex.B-35: Mee seva Pahani for the 1425 Fasli, Dated 9-10-2017. Ex.B-36: Mee seva Pahani for the 1426 Fasli, Dated 9-10-2017. Ex.B-37: Mee seva Pahani for the 1426 Fasli, Dated 9-10-2017. Ex.B-38: Mee seva Pahani for the 1425 Fasli, Dated 9-10-2017. Ex.B-39: Mee seva Pahani for the 1424 Fasli, Dated 9-10-2017. Ex.B-40: Mee seva Pahani for the 1423 Fasli, Dated 9-10-2017. Ex.B-41: Mee seva Pahani for the 1422 Fasli, Dated 9-10-2017. Ex.B-42: Mee seva Pahani for the 1421 Fasli, Dated 9-10-2017. Ex.B-43: Abstract G.O.Ms.No.556, Dated 17-12-2011 along with (2) afdavits. Ex.B-43/A: Unregistered Gift Deed, Dated 20-11-1969.
Sd/-
(Sri D.Veera Nageswar Rao)
FAC. II ADDL. SENIOR CIVIL JUDGE
WARANGAL