SMT G. Anandhi

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE , GUNTUR.

PRESENT: Smt. G. Anandi, B.Com., LL.B., Prl. Junior Civil Judge, Guntur

Tuesday, this the 3rd day of November, 2015

O.S.No. 26 of 2014.

Between: Vuyyuru Santha Kumari.….Plaintiff.

And

Boyapati Pitchaiah. ….Defendant

This suit is coming on 30-10-2015 before me for final hearing in the presence of Sri K.S.Chandramowleeswara Rao, Advocate for the Plaintiff and of Sri N.Chalapathi Rao, Advocate for the Defendant, and after perusing the material available on record, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintiff seeking the relief of permanent injunction in respect of the schedule property against the defendant.

2.The case of the plaint in brief is that:-

The defendant requested the plaintiff to look after his aged mother about 14 years back, as she was unable to attend her daily needs without the help of somebody, as the defendant lost his wife 8 years back and his only daughter by name Veera Papa, who was also resides in the same village, but evinces no interest to take care of the old women. The Plaintiff says that the defendant promised the plaintiff to give the schedule property in consideration of she looking after his aged mother till her last breath in the presence of elders by name Mallempati Sambasiva Rao, Bodapati Venkata

Mohana Rao and Yemparala Lakshmaiah and others.

3.The plaintiff says that she along with her husband and children entered the schedule property and served the old aged mother of defendant with all sincerity and sympathy till she died about 2 years back, and that the old lady was completely bed ridden in her later days.

4.She further adds that a single poled improvised thatched hut, which was raised by the defendant for his mother, was renovated for time to time by the plaintiff by spending her hard earned money. But, from the last one week the defendant who never demanded the plaintiff to vacate the schedule property even after the death of his mother was making hectic efforts to 2 vacate the plaintiff from the schedule property by hook or crook. Though the plaintiff personally and through mediators tried to convince the defendant, the defendant did not heed to their words. She says that she has been regularly paying electricity bills for the schedule property as such she is in settled possession for over 12 years to the knowledge of defendant and all in the locality. Hence in these circumstances to protect her possession from being unlawfully interfered by the defendant she is constrained to file this suit

5.The Defendant through his written statement denied the entire plaint averments, and states that he occupied the schedule property and constructed a thatched house by spending Rs.50,000/- in which, he his wife and mother were staying by getting electricity connection and paying panchayat tax, water tax. He further submits that the plaintiff is closely acquainted with the defendant’s family, who were staying as tenant in the house of Kanagala Pamulu, who demanded the plaintiff's family to vacate the building, as the plaintiff did not vacate the house Pamulu threw out the articles of plaintiff in to the street and and vacate her from his house. Under these circumstances, the plaintiff and her husband having no other go approached the defendant and requested him to allow them to stay in the suit house by promising that they would vacate the house after construction of thatched house in their site, and defendant on humanitarian grounds allowed the plaintiff to stay in a room in the schedule property.

6.He further says that his wife passed away 8 years back, and since then he and his mother were staying in the schedule property, and the defendant has been looking after the welfare and needs of his mother till her death, and that the plaintiff never looked after the welfare of his mother as alleged in the plaint, and the defendant never promised to give away the house to the plaintiff.

7.The defendant further says that after the death of her mother about 3 years back he came to Guntur to reside with his daughter leaving his articles in the house, and the plaintiff who was staying in a dilapidated room of the schedule property, taking advantage the absence of defendant encroached into the plaint schedule property about 2 years ago, and has been staying there without any right of title. He says that the plaintiff is only a trespasser and not entitled to continue in the schedule premises.

3

Hence, she is not entitled for discretionary relief of injunction. Infact, when the defendant reported the matter to SHO, Pedakakani, and when the police questioned the plaintiff and her husband, they promised to vacate the house, but instead of vacating the house, the plaintiff approached this court with false averments, seeking equitable relief of injunction, hence for the above stated reasons, the defendant prayed to dismiss the suit.

8.On behalf of plaintiff P.Ws.1 to 3 were examined and Exs.A1 to A7 were marked. On behalf of the defendant D.Ws.1 and 2 were examined, and

Exs.B1 to B3 were marked.

9. Heard both sides.

10.POINT: 1) Whether the plaintiff is entitled to permanent injunction as prayed for?

2) To what relief?

11.ISSUE No.1: The case of the plaintiff is that, the defendant himself inducted the plaintiff into the schedule property about 14 years back on the promise of settling the schedule property in her name on the condition of she taking care of the defendant's old aged mother who was bed ridden by then, and she says that since 14 years she has been in exclusive possession and enjoyment of the schedule property, because of which the Aadhar card and Ration card were issued in the name of plaintiff showing her address as

D.No.6-55 i.e., the schedule property herein. She further says that she has been regularly paying the electricity, house tax for the schedule property, which were issued in the name of defendant. The plaintiff examined as

P.W.1, who reproduced her plaint averments as discussed above also got examined her father as P.W.2 and an independent witness as P.W.3 in support of her contentions.

12.On the other hand the defendant, who denied the entire case of plaintiff says that when P.W.1 was thrown on road by her landlord Kanagala

Pamulu along with her house hold articles, P.W.1 who was left with no shelter approached the defendant, and defendant on humanitarian grounds permitted the plaintiff and her family to reside in a dilapidated room in the schedule property without even taking rent, but the plaintiff taking advantage of the absence of defendant, who came down Guntur about two 4 years back after the death of his mother, encroached into the schedule property upon which the defendant gave police report, and the plaintiff having agreed before the police to vacate the schedule property has intentionally filed this false suit by suppressing the material facts, and the defendant himself apart from being examined as D.W.1 got examined 2 independent witnesses as D.Ws. 2 and 3 and also filed tax receipt, electricity bills standing in his name pertaining to D.No.6-55, which is the schedule property herein.

13.The counsel for the plaintiff argued saying that when the defendant himself admitted the possession of schedule property by the plaintiff, when once the owner of the property does not dispute possession of the schedule property by the plaintiff in his capacity as owner, certainly the plaintiff is entitled for the relief of injunction and in this regard he relied upon a judgment reported between Sarnala Tirupathayya and others V/s

Bandaru Babu Rao 2012 (5) AL 454 wherein at Para 12 it was held

that, “Once the defendant in a suit for injunction does not dispute

possession of the plaintiff over the land, as owner there is no

alternative for the Court, except to grant the relief of perpetual

injunction.”

14.On the other hand the defendant, who disputes the alleged settled possession of the plaintiff in the schedule property from 14 years, says that he permitted the plaintiff to reside in a room in the schedule property about 3 years prior to the death of his mother, who died on 18-10-2011 and that the alleged settled possession by the plaintiff is absolutely false. The defendant says that, when he is disputing the lawful possession of the plaintiff over the schedule property as owner of the schedule property, plaintiff having failed to support her right of possession over the schedule property through an alleged agreement between him and the plaintiff, having failed to establish her legal right is estopped from seeking equitable relief of injunction. He says that when the possession of plaintiff is unlawful she cannot claim for bare injunction. In this regard the counsel for defendant relied upon a Judgment reported between Kumar Brothers and Co.

Hyderabad v/s Andhra Pradesh Housing Board, Hyderabad and

another, 2014(4) ALD 276 in which it was held, “mere unlawful

possession or unauthorized occupation is not sufficient to claim

permanent injunction. When the possession of plaintiff is unlawful,

5

the plaintiff is not entitled to claim a bare injunction and has to be

non suited”.

15.This court on the careful analysis of the pleadings and evidence on the record scans the evidence adduced by the plaintiff to ascertain whether there is sufficient material in support of the alleged settled possession of the schedule property by P.W.1, because the initial onus is always on the person who asserts. No doubt the plaintiff apart from examining herself has got examined 2 witnesses in support of her averments and undisputedly P.W.2 is the very own father of P.W.1. Ufcourse, merely because he is related to the plaintiff, his evidence need not be looked upon with suspicion and can be considered if found consistent and substantiating with the evidence of

P.W.1. According to P.W.1, it is defendant who requested her about 14 years back to look after his mother by staying in the schedule property, so that he can settle the schedule property in her name after the death of his mother, but it was elicited in the cross examination of P.W.1, P.W.2 and as well as

P.W.3 that it is Tulasamma, who is the mother of defendant, who approached the plaintiff asking P.W.1 to take care of the old women. So, when according to the evidence of P.W.1 herself Tulasamma requested her about 14 years back to stay in the schedule property to take care her, even testified by P.Ws.2 and 3, there araises any amount of doubt on the contention of plaintiff, that it was defendant who requested her to stay in the schedule property and look after his mother.

16.Added to it the very basis for the plaintiff to stay in the schedule property is that she had to take care of old women who was suffering with ailements, and was unable to do her routine work without anybody's help, but in the cross examination of P.W.1 it was elicited as under, “Tulasamma has no ill health problems, but she used to bend on me totally”, when from the very admission of P.W.1 it is elicited that the said old lady had no health problems, to look after whom P.W.1 entered the schedule property, certainly a cloud of suspicion arises over the version of

P.W.1 in saying that, only to take care of the old lady, who was unable to attend routine work she entered the schedule property, because but for the old lady P.W.1 would not have entered the schedule property. Hence, when she herself admitted in the examination that Tulasamma had no health problems, certainly the said admission makes this court to doubt the credentials of P.W.1. Adverting to it P.W.1 stated that as the old lady was 6 bedridden she had to attend all her works throughout the day, but from the cross examination of not only P.W.1 but also from the cross examination of witness and also her witness P.Ws.2 and 3, it was elicited that P.W.1 goes to coolie work from 10 AM to 4 or 5 P.M., daily, when the said evidence of

P.Ws.1 to 3 is read with the admission of PW.1 as discussed above, leads to a conclusion that P.W.1 was not attending Tulasamma throughout the day, and Tulasamma was not bed ridden, which admission of P.W.1 and her witnesses as argued by the defendant's counsel annuls the very case of plaintiff, because according to P.W.1 she was inducted into the schedule property only with an intention to look after the welfare of old lady, which from the discussions made above it clear that neither the old lady was suffering with ailments nor P.W.1 stayed in the house throughout the day attending Tulasamma.

17.Further P.W.1 stated that she spent around Rs.3,000/- to Rs.4,000/- to effect repairs to the schedule property, whereas her father stated that

P.W.1 spent Rs.15,000/- and P.W.3 stated the figure to be Rs.50,000/- spent by P.W.1 on the repair works of the schedule property, so not only the quantum of amount alleged to be spent by P.W.1 on the renovation of the schedule building varies, but having regard to the earning capacity of P.W.1 as could be seen from the very mouth of P.W.1 that their yearly income is

Rs.24,000/-, how far the contention of plaintiff and her witnesses as that she spent the so called varied amounts on the renovation of the building is believable?. Above all, even if for the sake of arguments it is believed for a moment that, at the request of defendant only plaintiff entered into the schedule property who has promised to settle the schedule property in her name, in the presence of elders by name Mallempati Sambasiva Rao,

Yemparala Lakshmaiah, Bodapati Venkata Mohana Rao, for the reasons best known to the plaintiff, she except examining her father who would in all means cannot be expected to speak anything against his daughter, did not choose to examine the remaining 2 independent witnesses, who were alleged to have knowledge about the alleged transaction between plaintiff and defendant. Though she examined P.W.3, P.W.1 did not state that P.W.3 was also present during the alleged transaction, but P.W.3 stated before the court, that he was also present when Tulasamma asked the plaintiff to stay in the schedule property, So, firstly there is no evidence for the contention of plaintiff to say that the defendant ever asked the plaintiff to stay in the schedule property, and look after his mother, and secondly the witness i.e., 7

P.W.3 who says to have been present at the time of alleged transaction states that it is Tulasamma, who requested the plaintiff to stay in the schedule property, even otherwise as already stated supra except in the plaint the remaining evidence on record discloses as if Tulasamma requested plaintiff to stay in the schedule property, and not the defendant, so when the basis of plaintiff to enter the schedule property. i.e., the alleged promise made by the defendant is not proved, the consequent allegation of plaintiff being in settled possession of schedule property does not inspire confidence.

18.Further more, the entire evidence even adduced by the plaintiff ie.,

Exs.A4, A7 electricity bills and even the tax receipts, electricity bills filed by the defendant marked as Exs.B2 and B3 discloses that they all stand in the name of defendant, even otherwise the plaintiff herself admitted that the tax demand notice, electricity demand notice were issued in the name of defendant himself but were paid by her, which lacks proof. On the other hand as Exs.A4, A7, B2 and B3 stands in the name of defendant, as rightly argued by the defendant's counsel because he is owner of the schedule property paying the taxes, and the electricity charges from the beginning, the bills are standing in his name. Though the plaintiff filed Exs.A1 to A3 the Aadhar card and household card to prove her possession, when as admitted by P.W.1 herself the Aadhar card was issued in the year 2011, and as seen from Ex.A3 ration card which seems to have been issued in the year 2006, in which event where is the material for the plaintiff to prove that she is in settled possession of the schedule property from more than 14 years?

infact Ex.A2 and A3 are Xerox copies which holds no sanctity in the eye of law to receive them as evidence, but some how they were marked, so even if for the sake of arguments, as they are marked and considered, even then the said document does not support the plaintiff's case that she is in the possession schedule property from the year 2000. So, from the entire evidence adduced on either side as discussed above this court opines that the evidence unmistakably leads to a conclusion that the plaintiff could not establish her alleged settled possession over the schedule property, which in one way supports the contention of defendant that the plaintiff is in unlawful possession of the schedule property.

19.When it is settled law that no person in possession of land can sue for injunction against owner, unless he/she is able to maintain that either under an agreement or under a statue he/she is entitled to the said relief 8 even against the true owner. If he/she is not able to rely on any agreement or statue their possession would be wrongful, and in this case in view of the detailed discussions made above this court categorically held that there is no sufficient material on record to prove the settled possession or the lawful possession of the schedule property by the plaintiff. Hence, when the relief of injunction is ought in support of strict legal right the party claiming such right is mandate to establish the legal right, but the plaintiff in this case has failed to establish the said legal right in her favour, in which event the possession of the plaintiff as argued by the defendant being wrongful cannot be belied. Hence, the plaintiff's possession being held to be wrongful is not entitled to protection by way of injunction, because such an order will be only aiding the plaintiff in continuing the wrongful possession against the true owner. Hence, for the reasons stated above this court opines that the plaintiff is not entitled to the relief of injunction as prayed.

20.The counsel for the plaintiff also relied upon the followings Judgments.

1993(3) ALD 359, and 1998(2) ALD 590 which were the orders passed in

CMA preferred against an application made U/order 39 Rule 1 of CPC, as the cardinal principles governing temporary injunction are quiet different from the relief of permanent injunction covered under Sec.38 of the Specific

Relief Act, the principle held in the above two Judgments are not applicable to the present case on hand. AIR 2004 SUPREME COURT 4609 the said

Judgment was in respect of settled possession of the plaintiff in the case, so the principles held in the said Judgment has no relevancy in the present case on hand, as this court disbelieved the plaintiff’s version of settled possession. AIR 2009 (4) ALJ 2663; ALD AIR SC 1674 Page 345 No.6:

AIR 1975 SUPREME COURT 1675 these three Judgments also being passed in entirely different set of facts from the case on hand, for the above reasons this court has not choosen to discuss them.

21.ISSUE No.2: In view of my findings given under issue No.1, the plaintiff is not entitled to the relief of permanent injunction.

22.In the result, suit is dismissed. No order as to costs.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open Court, this the day of 3rd day of November,

2015.

Prl. Junior Civil Judge, Guntur.

9

Appendix of evidence. Witness Examined

For Plaintiff:For Defendant: P.W.1:Vuyyuru Santha Kumari.D.W.1:Boyapati Pitchaiah P.W.2:Mallempati Sambasiva RaoD.W.2:Vuyyuru Tulasipati Rao P.W.3:Mandapati Chandra Sekhar Rao Documents Marked.

For Plaintiff: Ex.A1- Notarized copy of the Aadhar card of the plaintiff. Ex.A2- Notarized copy of the Aadhar card of the husband of the plaintiff. Ex.A3- Notarized copy of house hold copy plaintiff and her husband. Ex.A4- Electricity bill 13 in number. Ex.A5- Demand notice issued by APSPDCL for electricity connection. Ex.A6- Digital photographs. Ex.A7- Electricity bills along with payment receipt, for the month of August, 2014 to December, 2014.

For Defendant: Ex.B1- Death certificate of D.W.1's mother(Boyapati Tulasamma). Ex.B2- Tax receipts (six in nos.) for the period 2012 -2014. Ex.B3-bunch of electricity bill in the name of defendant.

P.J.C.J., Guntur.

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE , GUNTUR.

Present: Smt M. Meena Devi,

Principal Junior Civil Judge, Guntur.

Dated this the 3rd day of November, 2015.

E.P 417/2013

Between: Shriram City Union Finance Ltd., Guntur …D.Hr/Plaintiff.

And

Gaddam Anantha Lakshmi and another …J.Drs/Respondents.

This petition came before me in the presence of Sri.K.Sarath Babu, Advocate for D.Hr/plaintiff and the matter is having stood over for consideration till this day, this court delivered the following:-

DOCKET ORDER

1.This Execution Petition filed by the D.Hr under Order XXI, Rule 43, 66 and 64 of CPC.

2. F.S. memo filed and the same is recorded and E.P is terminated.

Typed to my dictation by Typist, corrected and pronounced by me in open court on this the date of 3rd day of November, 2015.

Sd/- M. Meena Devi

Principal Civil Judge (Junior Division),

Guntur.

//True copy//

PJCJ, GNT