O.S.No.134/2012 1/10 26.04.2019
IN THE COURT OF THE SENIOR CIVIL JUDGE :: SRIKALAHASTHI
Present :: Sri D.YEDUKONDALU,
Principal Senior Civil Judge, Tirupati.
FAC.Senior Civil Judge, Srikalahasthi.
Friday, this the Twenty sixth (26th) day of April, 2019
Original Suit No.134 of 2012
Between
Penagadam Dwarakanatha Reddy. .. Plaintiff.
and
1. Smt.Buchireddigari Lakshmi.
2. Buchireddigari Nagamuni Reddy.
3. Kudum Nagoor Reddy.
4. Siddareddigari Nadamuni Reddy.
5. Daggolu Muni Krishna Reddy.
6. Gangarapu Narendra Mohan. .. Defendants.
This suit is coming on 12.04.2019 before me for final hearing in the presence of Sri G.V.Subbaiah and Sri K.V.Ramana Rao, Advocates for plaintiff, Sri B.Rajendrudu, Advocate for fifth defendant, the defendants 1, 3, 4 and 6 remained exparte, the suit against the second defendant was dismissed as died, after perusing the entire material on record and hearing both sides, this court delivered the following:
J U D G M E N T
The plaintiff filed this suit against the defendants 1 to 6 seeking the relief of declaration of title of the plaintiff over the plaint schedule properties and for delivery of possession; and for costs of the suit.
2). The brief averments of the plaint are as follows: The plaint schedule properties are the ancestral properties of the plaintiff. The plaintiff’s father viz., Rami
Reddy had two wives viz., Munemma and Munemma. The plaintiff is the only son of his father born through his first wife viz., Munemma. After the death of his mother, his father married another woman viz., Munemma as second wife. The plaint schedule properties are the ancestral properties of his father, and he continued to be in possession and enjoyment of the same till his death in or around the year 1972.
After the death of his father, the plaintiff’s stepmother viz., Munemma had been in joint possession and enjoyment of the plaint schedule properties till her death on 03.01.2011. Later, the plaintiff had been in continuous and uninterrupted possession and enjoyment of the plaint schedule properties. The only daughter of the second wife of his father Munemma viz., Gurramma also died about 30 years ago. Hence, the plaintiff became the sole legal heir and legal representative of his father, having right, title, interest and possession of the plaint schedule properties.
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2.2) He was a Government employee and was doing job at various places in
Andhra Pradesh. After retirement, he started living at Kotha Kaluva village. His stepmother viz., Munemma was also an illiterate. Taking advantage of the residence of the plaintiff at various places, the defendants 1 to 6, in collusion with each other, seems to have been created sham, nominal, fraudulent, collusive and forged documents of transfer with a view to have wrongful gain to them and wrongful loss to to his legitimate right over the plaint schedule properties. If any documents of transfer were affected in respect of the plaint schedule properties, they were not binding on the plaintiff. His stepmother viz., Munemma did not execute any document of transfer in favour of the defendants 1 to 6 and the same was confirmed by her during her lifetime.
2.3) When the plaintiff questioned the illegal acts committed by the defendants 1 to 6 in the first week of December, 2011, they did not give proper answer, and they were dodging the matter on some pretext or the other. The plaintiff came to know that the defendants 1 to 6 were trying to alienate the plaint schedule properties in favour of third parties though they were not having any right, title or interest over the plaint schedule properties. They denied the legitimate right of the plaintiff with a view to defraud him. The plaintiff reliably came to know that the defendants 1 to 6 impersonated said Munemma and her thumb impression and obtained documents of transfer, taking advantage of ignorance and illiteracy of his stepmother, who was residing in the village. The documents alleged to have been obtained by the defendants 1 to 6 are void, and they would not affect the legitimate right of the plaintiff over the plaint schedule properties. On coming to know the atrocities committed by the defendants to 1 to 6, he questioned the defendants 1 to 6 to cancel the documents, but they did not properly reply. As such, he was forced to issue a legal notice dated 20-04-2012 calling upon the defendants 1 to 6 to cancel the documents if any obtained by them by coercion, fraud and impersonation from his stepmother. The defendants 3 and 6 received the notice, but they did not comply the demand. The defendants 1 to 4 and 5 managed to return the notices. Hence, the plaintiff was forced to file the suit for declaration and possession of the plaint schedule properties.
3) The defendants 1, 3, 4 and 6 remained exparte. The suit against the second defendant was dismissed as abated. The fifth defendant filed his written statement. The brief averments in the written statement are as follows: He specifically denied the material allegations made in the plaint and submitted that the plaintiff had no cause of action to file the suit. Originally, the part of the plaint schedule properties in Survey Nos.19/3 in an extent of Ac.0-09 cents, 19/4 in an
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extent of Ac.0-07 cents and 19/5 in an extent of Ac.0-10 cents were the ancestral properties of one Kudum Naguru Reddy, S/o.K.Nagi Reddy, the third defendant herein. He was in physical possession and enjoyment of the said properties as absolute owner with absolute rights. On 07.03.2007, he purchased the said three properties in an extent of Ac.0-26 cents from the third defendant under a registered sale deed dated 07.03.2007 for consideration and obtained possession of the same.
Since the date of purchase, he has been in possession and enjoyment of the properties by raising crops as absolute owner thereof. The Mandal Revnue
Authorities also recognized his possession, right, title and enjoyment and issued pattadar passbook and also title deed book in his favour in respect of the said properties. On this ground alone, the suit is liable to be dismissed. The said Ac.0-26 cents of land did not belong to the ancestors of the plaintiff and his ancestors were never in possession and enjoyment of the same. Except the fifth defendant, nobody has right, title, interest and possession over the said Ac.0-26 cents of land, and he prayed the court to dismiss the suit.
4) Basing on the above pleadings, as there were no elements of settlement, my learned predecessor framed the following issues for the purpose of trial:
1) Whether the plaintiff has right and title over the suit schedule properties and he is entitled to ask declare him as absolute owner of the suit schedule properties as prayed for?
2. Whether the plaintiff is entitled to ask to vacate the defendants 1 to 6 and to deliver vacant possession of the suit schedule properties to him as prayed for?
3. Whether the defendant No.5 has exclusively rights as pleaded by him?
4. Whether there is cause of action for the suit?
5. To what relief?
5) To substantiate the case of the plaintiff, the plaintiff himself gave evidence as PW1, and he examined PW2 K.Suresh and PW3 K.Ramanadha Reddy on his behalf. Exs.A1 to A4 are marked on behalf of the plaintiff. On the other hand, the fifth defendant himself gave evidence as DW1, and he examined DW2 M.Harinatha
Reddy on his behalf. Exs.B1 to B6 are marked on behalf of the fifth defendant.
6) Heard the learned counsel for the plaintiff and the learned counsel for the fifth defendant.
7) ISSUE NO.1: In a suit for declaration of title over the plaint schedule properties, the burden of proof lies upon the plaintiff to prove that he has absolute right over the plaint schedule properties irrespective of the weakness of the fifth
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defendant in setting up his title over the disputed properties. In other words, the weakness of the fifth defendant if any shall not confer the right or title to the plaintiff over the plaint schedule properties, and the plaintiff shall independently prove his title to the same. In this regard, I relied upon a decision of Hon’ble Supreme Court of
India in Union of India & Ors. v. Vasavi Co-op. Housing Society Ltd. &Ors. 1 , wherein at Para No.12, it was held as hereunder:
“It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.” I further relied upon a Division Bench decision of Hon’ble High Court of Andhra
Pradesh in Sajana Granites, Madras and another v. Manduva Srinivasa Rao and others 2 , wherein at Para No.10, it was held as hereunder:
“The Supreme Court in M.P. Athanastus case (supra), M.M. Catholices v. Polo Avira case (supra) and this Court in C. Audilakshmamma case (supra) held that plaintiff in a suit for declaration of title, and for recovery of possession, can succeed only on the strength of his own title and that it is not obligatory on the defendants to plead and prove the possible defects in the plaintiffs title and so if the plaintiff fails to establish his title, even if the defendant fails to establish his own title, plaintiff must be non suited. In this case since appellants are seeking declaration of their title to the suit property they have to establish their title; and cannot expect relief on the basis of the weakness of the case of respondents 1 and 2, or on the basis that the evidence adduced by respondents 1 and 2 does not establish their title to the suit property.” So, it is settled legal proposition of law that the plaintiff shall stand or fall on his own legs in order to establish his title to the plaint schedule properties, and he cannot rely upon the weakness of the fifth defendant if any.
7.2) In order to establish the plaintiff’s right and title over the plaint schedule properties, the plaintiff relied upon his own evidence as PW1 coupled with Exs.A1 to
A4 apart from the oral evidence of PW2 K.Suresh and PW3 K.Ramanadha Reddy.
Coming to the evidence of PW1 P.Dwarakanatha Reddy coupled with Ex.A1, the
Deputy Tahsildar, Yerpedu Mandal issued a copy of settlement adangal dated 17.02.2012, according to which, the plaintiff’s father namely viz., Rami Reddy,
S/o.Gurunatha Reddy was shown as registered holder or inamdar for an extent of
Ac.0-13 cents in Survey No.2/6, Ac.0-24 cents in Survey No.4/17, Ac.0-04 cents in
Survey No.4/21, Ac.0-06 cents in Survey No.15/8, Ac.0-26 cents in Survey No.5/3,
Ac.0-13 cents in Survey No.8/12, Ac.0-20 cents in Survey No.14/16, Ac.0-17 cents in
Survey No.21/9 and Ac.0-19 cents in Survey No.22/5, described as items 2 to 10 of 12014 SAR (Civil) 191 22002 (1) ALT 466 (D.B.)
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the plaint schedule properties. According to his evidence, coupled with Ex.A2, he got issued a legal notice to the defendants claiming his ownership over the total plaint schedule properties, described as 13 items in total Ac.1-35 cents of land along with bore-well. According to his evidence coupled with Ex.A3, the legal notices were served upon the defendants 3 and 6 and those were returned from the defendants 1, 2, 4 and 5 under Ex.A4. As argued by the learned counsel for the fifth defendant, the plaintiff did not file any documents in order to establish his title to the plaint schedule properties including the lands in Survey Nos.19/3, 19/4 and 19/5 in total extent of
Ac.0-26 cents shown as items 11 to 13 in the plaint schedule, apart from item No.1.
7.3) The learned counsel for the fifth defendant cross-examined PW1
P.Dwarakanatha Reddy at length. During the cross-examination, he admitted that he did not file any documentary evidence to prove that the plaint schedule properties were his ancestral properties. As I earlier discussed, except Ex.A1 copy of settlement adangal, the plaintiff did not file any other documents to prove the ownership of his father over the plaint schedule properties. As I earlier discussed, the name of his father was mentioned against column with reference to registered holder or inamdar. The plaintiff did not plead that his father was the registered holder or inamdar of the plaint schedule properties. Moreover, the document under Ex.A1 was issued with stamping that it was furnished under Right to Information Act, 2005 and not for the purpose of evidence in any Court of Law. Of course, it may be used as certified copy of the original. If the version of the plaintiff is true that the plaint schedule properties are his ancestral properties, he could have filed other revenue records, such as 1B Extract (ROR), or Patta issued under A.P. (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 or the Pattadar Passbook or Title
Deed issued by the Revenue Department. He did not file any such documents, and he himself deposed that he did not file any documentary evidence to prove that the plaint schedule properties were his ancestral properties. On the other hand, he categorically admitted in his cross-examination that items 11 to 13 of the plaint schedule properties were the ancestral properties of the third defendant, but he voluntarily deposed that those properties were given to his father in exchange of the properties with the third defendant in the year 1951, or 1953 approximately. The third defendant was aged about 40 years as on the date of filing of the suit in the year 2012. So, he was born in the year 1972 and as such, the question of exchange of the properties in the year 1951 or 1953 does not arise. Apart from it, as argued by the learned counsel for the fifth defendant, if there was any exchange of the properties for value of Rs.100/- or above, it should be only by way of registered instrument. But, the plaintiff did not file any registered exchange deed in his favour.
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Apart from it, PW1 admitted in his cross-examination that he did not file any revenue record in proof of his possession over items 11 to 13 of the plaint schedule properties from the year 1951 or 1953 onwards. If the version of the plaintiff is true that the plaint schedule properties are his ancestral properties, and they have been in continuous possession and enjoyment of the same, there should be adangals in proof of the possession of the plaintiff or his ancestors over the plaint schedule properties. Admittedly, the plaintiff did not file any adagnals to prove his possession.
Moreover, he admitted that he had no knowledge about the sale deed executed by the third defendant in favour of the fifth defendant in respect of items 11 to 13 of the plaint schedule properties on 07.03.2007. He further admitted that the fifth defendant also obtained pattadar passbook and title deed in pursuance of the sale deed dated 07.03.2007 and the revenue records also stands in his name. He further made a crucial admission that there was no mention about item Nos.11 to 13 of schedule property in Ex.A1. So, it is obvious from the fatal admissions made by PW1
P.Dwarakanatha Reddy in his cross-examination that he did not file documents evidencing that the plaint schedule properties were his ancestral properties, there was no mention in Ex.A1 about items 11 to 13 claimed by the fifth defendant, and he also did not file documents to prove his possession or the possession of his ancestors over the plaint schedule properties. Even if the version of the plaintiff is true that he or his ancestors were in possession and enjoyment of the properties at a particular of time, there shall be dispossession. The plaintiff never pleaded that the date of dispossession except stating that the defendants gave evasive answers in
December, 2011 and he got issued Ex.A1 legal notice on 20.04.2012. So, the plaintiff proved neither the title nor possession to the schedule properties, especially, over item Nos.11 to 13 claimed by the fifth defendant.
7.4) However, he examined PW2 K.Suresh, who filed his chief affidavit, supporting the version of the plaintiff in all particulars, especially, stating that the plaint schedule properties were the ancestral properties of the plaintiff and the defendants 1 to 6 created sham, nominal, fraudulent, collusive and forged documents in their favour in order to defeat and defraud the right of the plaintiff over the plaint schedule properties. During the cross-examination by the learned counsel for the fifth defendant, PW2 K.Suresh deposed that he did not know the possession of item
Nos.11 to 13 of the plaint schedule properties, and he did not know that the fifth defendant purchased the said properties from the third defendant under registered sale deed, dated 07.03.2007. So, without any knowledge about the possession or sale in favour of the fifth defendant, he entered into the witness box supporting the version of the plaintiff. He introduced a new story in his cross-examination that one
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Kalappa and Doraswamy of Nallapalem village were cultivating the lands on lease, but he did not know the details of the land. This story was not revealed by the plaintiff. A specific question was put to him that the plaintiff and his father were never in possession and enjoyment of the properties in Survey No.19, such as item Nos.11 to 13, for which, he answered that the plaintiff’s mother was going to the plaint schedule properties to take the crop and the plaintiff and his father were not in possession and enjoyment of the land in Survey No.19. So, the own witness of the plaintiff gave evidence against the interest of the plaintiff that the plaintiff and his father were not in possession and enjoyment of the properties described as item
Nos.11 to 13. Of course, the plaintiff also gave fatal admissions in respect of the same, as discussed supra.
7.5) However, the plaintiff further examined PW3 K.Ramanadha Reddy. He also filed his chief affidavit narrating the total version of the plaintiff and it need not be reproduced once again. During his cross-examination, he deposed that the plaintiff filed the suit against the fifth defendant alone. According to his evidence, he and the defendants 1 to 4 and sixth defendant are relatives of the plaintiff. As argued by the learned counsel for the fifth defendant, it may be the reason that the defendants 1, 3, 4 and 6 remained exparte, but he pleaded ignorance about the properties purchased by the fifth defendant from the third defendant, referred as item Nos.11 to 13 in the plaint schedule. So, from his evidence, it is clear that he, being the relative of the plaintiff, supported him even without any knowledge about the sale deed executed by the third defendant in favour of the fifth defendant and perhaps the defendants 1 to 4 and 6 remained exparte, being the relatives of the plaintiff. So, there is no categorical evidence on behalf of the plaintiff to prove that he is the absolute owner of the plaint schedule properties as ascertained by him, especially in view of the admissions made by PWs.1 to 3 in their cross-examination and for want of any documents, including the revenue records, except Ex.A1. As I earlier discussed, Ex.A1 was
Karana’s copy of settlement adangal, in which, the name of the said Rami Reddy was mentioned as registered holder or inamdar. The plaintiff did not explain any law which creates right to him over the plaint schedule properties by virtue of Ex.A1. The plaintiff did not give any clarification either by examining the revenue authorities or by producing any other documents to prove that the said properties were his ancestral properties. As such, I can come to the conclusion that the plaintiff failed to prove his title to the plaint schedule properties. Hence, this issue is answered in favour of the fifth defendant and against the plaintiff.
8.) ISSUE NO.2: When the plaintiff failed to his title to the plaint schedule properties, the fifth defendant who purchased the said properties from the third
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defendant under a registered sale deed dated 07.03.2007 need not deliver vacant possession of the same to the plaintiff. So far as the other properties are concerned, the plaintiff did not file any document to prove his ownership over the same.
Moreover, though the plaintiff filed ExA1, the copy of settlement adangal in respect of item Nos.2 to 10 of the plaint schedule properties, he did not file any other documents, either to his previous possession or to prove the present possession of other defendants. So, the question of directing the other defendants to surrender the vacant possession to the plaintiff, does not arise. Moreover, the suit against the second defendant was dismissed, as abated. Hence, the plaintiff is not entitled for delivery of possession, as prayed for. This issue is answered accordingly in favour of the fifth defendant and against the plaintiff.
9.) ISSUE NO.3: The fifth defendant claimed that he got exclusive right and possession over item Nos.11 to 13 of the plaint schedule properties. In order to prove the same, he gave evidence as DW1 and also examined DW2 M.Harinatha
Reddy on his behalf. According to the evidence of DW1 D.Munikrishna Reddy coupled with Ex.B1 registered sale deed dated 07.03.2007, the third defendant sold item Nos.11 to 13 of the plaint schedule properties to the fifth defendant for consideration. According to his evidence coupled with Ex.B2, the Mandal Revenue
Officer, Yerpedu Mandal issued pattadar passbook in favour of the fifth defendant.
Similarly, according to his evidence coupled with Ex.B3, the name of the fifth defendant was mutated in the revenue records and the Tahsildar, Yerpedu issued 1B extract/ROR in favour of the fifth defendant. Similarly, the name of the fifth defendant was mentioned in pattadar adangal/pahani in respect of three items of properties under Exs.B4 to B6. Though the learned counsel for the plaintiff cross examined
DW1 D.Munikrishna Reddy, nothing is elicited to disprove the sale transaction or his title or possession over item Nos.11 to 13 of the plaint schedule properties. He specifically denied a suggestion that the plaint schedule properties belong to the plaintiff, but not the third defendant. As I earlier discussed, the plaintiff himself admitted the title of the third defendant over the three items, and he failed to prove the alleged exchange. DW2 M.Harinatha Reddy also filed his chief affidavit, supporting the version of the fifth defendant in all material particulars and the contents of the same need not be reproduced. During the cross-examination by the learned counsel for the plaintiff, he deposed that according to the third defendant, the properties were his ancestral properties, and he also saw the sale deed executed in favour of the fifth defendant. Of course, he gave evidence in respect of Ac.0-26 cents of land claimed by the fifth defendant, and he may not have knowledge with respect to the other properties. So, there is a clear admission from the plaintiff that
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item Nos.11 to 13 of the plaint schedule properties originally belonged to the third defendant, he failed to prove the exchange whereas the fifth defendant proved the sale in his favour by producing the sale deed and also possession over the same by producing the revenue records. The plaintiff did not produce any such revenue record in respect of any items of the plaint schedule properties, as I earlier discussed.
Hence, I can safely come to the conclusion that the fifth defendant has exclusive right over item Nos.11 to 13 of the plaint schedule properties, as pleaded by him. This issue is answered accordingly in favour of the fifth defendant and against the plaintiff.
10) ISSUE NO.4: The plaintiff stated that he has cause action to file the suit in
Para No.10 of his plaint. But, as I earlier discussed, the plaintiff failed to prove that the plaint schedule properties were his ancestral properties, he succeeded the same after the death of his father and his stepmother Munemma, and he was in possession and enjoyment of the same. As I earlier discussed, the plaintiff never stated anything about the dispossession and as such, the question of delivering the vacant possession does not arise. Once the plaintiff failed to prove the bundle of facts mentioned in Para No.10 of the plaint which enable him to succeed suit if traversed by the defendants, it cannot be said that he had cause of action to file the suit.
Hence, the plaintiff had no cause of action to file the suit. This issue is answered accordingly.
11) ISSUE NO.5: In view of my findings in issue Nos.1 to 4, the plaintiff is not entitled either for declaration or delivery of possession and the suit is liable to be dismissed. The plaintiff shall pay costs of the suit to the fifth defendant, and he shall bar his own costs.
12.) In the result, the suit is dismissed. The plaintiff shall pay costs of the suit to the fifth defendant, and he shall bar his own costs.
Dictated to the Personal Assistant of this court, transcribed by him, corrected and
pronounced by me in the open court, this the 26th day of April, 2019.
Principal Senior Civil Judge,Tirupati.
FAC. Senior Civil Judge, Srikalahasthi.
Appendix of Evidence
Witnesses examined
For Plaintiff: For Fifth Defendant:
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PW1: P.Dwarakanatha Reddy.DW1: D.Munikrishna Reddy. PW2: K.SureshDW2: M.Harinatha Reddy. PW3: K.Ramanadhra Reddy.
Exhibits Marked
For Plaintiff:
ExhibiDate Description of document t A117.02.2012:True copy of Karana’s copy of settlement adangal issued by the Deputy Tahsildar, Yerpedu Mandal. A220.04.2012:Legal notice issued by the plaintiff to the defendants with postal receipts. A3--: Two postal acknowledgements of defendants 3 and 5.
A4--: Four unnerved covers of defendants 1, 2, 4 and 5.
For Fifth Defendant:
ExhibiDate Description of document t B107.03.2007:Registered sale deed executed by Kudum Nagoor Reddy in favour of third defendant in respect of item Nos.11 to 13 of the plaint schedule land in an extent of Ac.0-26 cents in Survey Nos.19/3, 19/4 and 19/5 B2--:Pattadar pass book issued by the Mandal Revenue Officer, to the fifth defendant in respect of item Nos.11 to 13 of the plaint schedule land in an extent of Ac.0-26 cents in Survey Nos.19/3, 19/4 and 19/5. B313.11.2018:Mee seva copy of 1B(ROR) Namuna issued by the Tahsildar, Yerpedu Mandal in respect of item Nos.11 to 13 of the plaint schedule land in an extent of Ac.0-26 cents in Survey Nos.19/3,19/4 and 19/5 and other properties B413.11.2018:Mee seva copy of pattadar adangal/pahani copy issued by the Tahsildar, Yerpedu Mandal in respect of item No.13 of the plaint schedule property to an extent of Ac.0-10 cents in Survey No.19/5. B513.11.2018:Mee seva copy of pattadar adangal/pahani copy issued by the Tahsildar, Yerpedu Mandal in respect of item No.12 of the plaint schedule property to an extent of Ac.0-07 cents stands in the name of fifth defendant D.Muni Krishna Reddy. B613.11.2018:Mee seva copy of pattadar adangal/pahani copy issued by the Tahsildar, Yerpedu Mandal in respect of item No.11 of the plaint schedule property to an extent of Ac.0-0 cents stands in the name of fifth defendant D.Muni Krishna Reddy.
PSCJ., TPT.,
FAC.SCJ., SKHT