O.S.No.806 of 20111 I AJCJ Court,
Madanapalle.
IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE ::
MADANAPALLE.
PRESENT: Smt. G.C.ASIFA SULTHANA,
I Additional Junior Civil Judge,
MADANAPALLE.
Friday, this the Nineteenth (19th) day of May, 2023
O.S.No.806 of 2011
Between:
Saparam Ravindra Babu, S/o S.Pandurangaiah Setty, aged about 45 years, Hindu, Business, resident of Bazaar Street, Nimmanapalle Town and Mandal, Chittoor District.
... Plaintiff.
And:
01.Afghan Khasim Khan, S/o Late A.Syfulla Khan, aged about 37 years, Muslim, Business.
02.Afghan Ghouse Khan, S/o Late A.Syfulla Khan, aged about 35 years, Muslim, Business.
03.Afghan Shabad Khan, S/o Late A.Syfulla Khan, aged about 27 years, Muslim, Business.
04.Afghan Rafulla Khan, S/o Late A.Ghani Khan, aged about 47 years, Muslim, Business.
05.Afghan Mazharali Khan, S/o Late A.Barkathulla Khan, aged about 55 years, Muslim, Business.
All are residents of Kandur Road, Nimmanapalle Town and Mandal, Chittoor District. … Defendants 1 to 5.
This suit came up before me on 12.05.2023 for final hearing in the presence of Sri N.S.N.Prasad and Sri S.Badri Nath Gupta, Counsels for the Plaintiff and of Sri S.Vijaya Kumar, Counsel for the defendants 1 to 5; and on hearing both sides and on perusal of entire record, and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
01.The present suit is filed by the plaintiff against the defendants 1 to 5 under Order-VII, Rule-1 r/w Sec.26 of C.P.C. for declaration of right and title of the plaintiff over the plaint scheduled property and also for consequential relief of permanent injunction, restraining the defendants and their men from interfering with the plaintiff’s possession and enjoyment over the plaint scheduled property and to direct the defendants to pay costs of the suit and also for other reliefs.
O.S.No.806 of 20112 I AJCJ Court,
Madanapalle.
02.As per the brief averments of the plaint filed by the plaintiff herein are that:-
The plaintiffs submit that the plaint scheduled property originally belongs to one Shaik Jubeda Begum, W/o Abdul Rasool and she perfected her right, title, possession and enjoyment over the plaint scheduled property and subsequently, on 04.02.1986, she alienated the property under two registered sale deeds i.e., one in the name of
Saparam Pandurangaiah Setty, S/o Lakshmaiah and he is none other than the father of the plaintiff herein and another registered sale deed is in favour of Mayana Chand Basha Khan,S/o Azeem Khan and she delivered possession to the respective vendees and thereby, 1/3rd share of property went into the hands of Saparam Panduramngaiah Setty and 1/3rd share went into the hands of Mayana Chand Basha Khan with specific metes and bounds along with measurements, which are described in the said sale deeds. Further, there is another person namely Mayana Saheb Khan and in order to avoid ambiguity and complications, the said Mayana Saheb Khan, who is entitled for remaining 1/3rd share along with Saparam Pandurangaiah Setty and
Mayaan Chand Basha Khan went into Possessory Permanent Partition
Kararunama and accordingly, the same was executed in writing in the presence of attestors and scribe and as per the same, the said Mayana
Saheb Khan was allotted 1/3rd share and 2/3rd share of the property pertaining to Saparam Pandurangaiah Setty and Mayana Chand Basha
Khan, which is given towards Southern side to Mayana Saheb Khan with specific measurements and boundaries. Therefore, there is no ambiguity as per the said partition of the extents and measurements with boundaries.
03.It is further submitted that on 02.11.2011, the plaintiff herein had pruchased 2/3rd share, which belongs to Saparam
Pandurangaiah Setty and Mayana Chand Basha Khan under a registered sale deed by paying the prevailing over market value and got delivered possession within the knowledge of every body including the defendants. Furthermore, it is submitted that the plaintiff herein got perfected the right and title, possession and enjoyment over the plaint scheduled property and constructed a temporary cement roofed shed, which had taken place in the day light as the plaintiff being the rightful owner. While so on 23.11.2011, the defendants vehemently are trying
O.S.No.806 of 20113 I AJCJ Court,
Madanapalle.
to bring down and to demolish the temporary shed with mala-fide intention, having no iota of right, title, possession or enjoyment.
04.Henceforth, the plaintiff initially filed the suit for grant of permanent injunction against the defendants and subsequently, by way of amendment as per orders in I.A.No.223/2018 dated 29.06.2018, the plaintiff amended his plaint and thereby, filed the plaint against the defendants, on that the defendants unjustly denied the right and title of the plaintiff and that the plaintiff filed the suit for declaration of his right and title and for consequential relief of permanent injunction or alternatively, for declaration of right and title of the plaintiff in the plaint scheduled property and for delivery of possession, if this Hon’ble Court comes to conclusion that the plaintiff is not in possession of the suit scheduled property. Therefore, the plaintiff has filed the suit for declaration of his right and title and for consequential relief of permanent injunction. Hence, the suit is filed.
05.On the other hand, after due service of summons to that of the defendants 1 to 5, they had filed common written statement and after amendment also, they had filed Additional Written statement.
06.As per the brief averments of the common written
statement and the Additional written statement filed by the
defendants 1 to 5 are that:-
It is submitted that the suit of plaintiff is not maintainable and further submits that it is utterly false to say that the suit scheduled property originally belongs to one Shaik Zubeda Begum, W/o Abdul
Rasool Saheb and also denies with respect of the right and title of the plaintiff over the said property and the said Zubeda Begum never perfected the right and title over the suit scheduled property and further submits that when the said Zubeda Begum is not having any right and title and vendees of Zubeda Begum does not not get any right and title and thereby, the plaintiff will not get any right and title over the suit scheduled property. Furthermore, the defendants denied the Possessory
Permanent Partition Kararunama entered in between Mayana Chand
Basha Khan and Saparam Pandurangaiah Setty. Further, it is submitted that it is false and created for the purpose of this suit. Further, the defendants denies the possession of the property by the plaintiff and
O.S.No.806 of 20114 I AJCJ Court,
Madanapalle.
construction of the temporary shed in the suit scheduled property.
Furthermore, it is submitted that the suit scheduled property originally belongs to Mandeyam Afghan Khasim Khan and he had two (2) wives, first wife by name Azmat Bee and second wife by name Ameena Bee and the property of Mandeyam Afghan Khasim Khan after his demise, got devolved on to his two wives equally. Furthermore, the said
Ameena Bi, who is the second wife of Mandeyam Afghan Khasim Khan alienated her half share to one Shaik Zubeda Begum on 09.03.1979 under a registered sale deed, wherein, she had also mentioned that her entire joint half share is sold out and therefore, subsequent alienations does not have any legal value and the said Ameena Bi only created th documents and she lost her right in the suit scheduled property and subsequent purchases will not create any right.
07.It is further submitted that Mandeyam Afghan Khasim Khan had two sons through his first wife by name Ghani Khan and Barkatulla
Khan and the said Ghani Khan had two sons namely Saifulla Khan and
Safiulla Khan, who is the 4th defendant herein and Saifulla Khan had three sons namely Khasim Khan, Ghouse Khan and Shabad Khan, who are none other than the defendants 1 to 3 herein, and one Mazarali
Khan,S/o Barakathulla Khan is the 5th defendant herein. Therefore, it is submitted that the sale deed said to have been obtained by the plaintiff on 02.11.2011 having no manner of right and title over the property and he cannot claim the suit property. Further, it is submitted that he was never in possession and enjoyment of the property and further submits that the plaintiff cannot claim the right and title over the property as his vendors are not having any right and thereby, he is not entitled for a decree in his favour and prays the Hon’ble Court in order to dismiss the suit, in the interest of justice.
08.After perusal of the pleadings, the following issues are settled for trial:
(1) Whether the plaintiff is entitled for declaration of his
right and title over the suit schedule property and for consequential relief of permanent injunction, restraining the defendants and their followers from interfering with peaceful possession and enjoyment of the property? (Or in alternative)
O.S.No.806 of 20115 I AJCJ Court,
Madanapalle.
Whether the plaintiff is entitled for declaration of right and title in the suit scheduled property and for
delivery of the possession of the same?
(2) To what relief?
09.In order to prove the contention of the plaintiff herein, the plaintiff got examined PW-1 and PW-2 and got marked Ex.A-1 to Ex.A-6 on his behalf. On the other hand, the defendants got examined DW-1 and DW-2 and got marked Ex.B-1 to Ex.B-12 on their behalf.
Furthermore, the learned Advocate-Commissioner, who inspected the suit scheduled property got examined as CW-1 and got marked Ex.C-1, which is the Advocate-Commissioner’s report.
10.Heard both sides and perused the entire material available on record along with written arguments of plaintiff and defendants herein and citations submitted by the plaintiff and defendants herein.
11. ISSUE No.1:
In order to answer this issue, let us discuss the entire evidence let in by the plaintiff and defendants herein. However, initially, the plaintiff has filed the present suit for permanent injunction for the plaint scheduled property, which is nothing but the property lying in Sy.No.459-1 and East to West 120 feet and North to South 32 feet, including temporary constructed cement roofed shed in the above extent, which is measuring 426.66 square yards or 358.399 square meters along with vacant site.
12.In order to prove the contention of the plaintiff, the plaintiff who filed the suit got filed his chief affidavit as PW-1, which is in lieu of averments of the plaint and also filed additional chief affidavit and got marked Ex.A-1 to Ex.A-3. However on perusal of Ex.A-1 to Ex.A-3, wherein, Ex.A-1 is the registered sale deed dated 04.02.1986 executed by Shaik Zubeda Begum and Shaik Abdul Rasool in favour of
S.Pandurangaiah Setty. Ex.A-2 is the other registered sale deed dated 04.02.1986 executed by Shaik Zubeda Begum and Shaik Abdul Rasool in favour of M.Chand Basha Khan. Ex.A-3 is the also registered sale deed dated 02.11.2011 executed by M.Chand Basha Khan and
S.Pandurangaiah Setty in favour of plaintiff herein.
13.Initially, the plaintiff/PW-1 was cross examined at length, wherein he stated that the suit scheduled survey number is 459-1 and
O.S.No.806 of 20116 I AJCJ Court,
Madanapalle.
measurements of suit scheduled property is East to West 120 feet,
North to South 32 feet. He further sticked to his version during cross examination that he purchased the property from Chand Basha Khan and Pandurangaiah Setty in the year 2011 and they have in turn purchased the suit scheduled property from Zubeda Begum as under
Ex.A-1 and Ex.A-2. However, he stated that he is not aware that the 1st defendant had given 2/3rd share to Ameena Bee and he is also not aware about the wives of Afghan Khasim Khan.
14.Furthermore, the learned counsel for the defendants 1 to 5 wants to impress upon before the Hon’ble Court that during cross examination of PW-1 that the plaintiff is not aware even with respect the extent and possession by the 1st defendant against whom he filed the suit. Therefore, the learned counsel for the defendants submits that the plaintiff is not aware of the facts and circumstances of the case and he is not aware of the property obtained by him and thereby, the learned counsel for the defendants submits that the plaintiff is not entitled for any relief. On further perusal of cross examination of PW-1 though it is elicited that the 1st defendant was given 1/3rd share to Ameena Bi and 2/3rd share to his daughter by name Khathun Bee and though suggestions were put forth to PW-1 that he does not know the correct wives names and shares allotted to them by Afghan Khasim Khan, but the defendants had admitted with reference to the registered document executed said to have been mentioned as 1st defendant herein. Further, he stated that he do not know the defendants 2 to 5, who are sons and first wife of the said Afghan Khasim Khan, who is referred as 1st defendant herein. Further, he stated that he is not aware of the relationship between the defendants 1 to 5. Further, he submitted that the said Zubeda Begum had purchased the suit scheduled property in the month of March, 1979 and in the month of April, 1979. He further stated that he does not have any document with respect of the same.
Further, it is elicited that the defendants had taken plea in their written statement that Zubeda Begum purchased more extent than possessed by Ameena Bee and he has not obtained the certified copies of the sale deeds. He further submitted that the property was never transferred and never delivered to vendees by name Pandurangaiah Setty and
Chand Basha Khan and accordingly, he himself does not have any right
O.S.No.806 of 20117 I AJCJ Court,
Madanapalle.
and title over the property. He further submitted that he is not aware of the revision register of Panchayat records.
15.Furthermore, during the further cross examination, he stated that he has not filed any house tax receipts and he has no objection to produce the house tax receipt before this Hon’ble Court. He denied for the suggestion that he has not paid any house tax for the suit scheduled property and that he is deposing false. He further stated that he is not aware of the wife of Afghan Khasim Khan and he has not tried in order to make enquiry of the wives of said Afghan Khasim Khan.
Further, he has stated that the improvements, which are shown in the document dated 09.03.1979 are correct or not.
16.He further submitted that he is not aware whether the measurements 23 x 75 mentioned in the document dated 09.03.1979 are correct or not. It is further elicited that the measurements as per
Ex.A-2 are East to West 120 feet, North to South 16 feet and towards
East there is Raja Veedhi, towards West there is Kanduru Road, towards
North there is house of Saheb Khan and towards South, the house of one Mahaboob Saheb. He further submitted that he is not present even at the time of execution of Ex.A-2. However, he denies for the suggestion that more measurements are mentioned in Ex.A-1 and
Ex.A-2 than that of theactual measurements. Furthermore, he submitted that he was present when the Advocate-Commissioner visited the suit scheduled property and as per his observation, the Carpentry tools and also Muslim calendar and ration cards of defendants were available. He further submitted that he has not given any police complaint with respect of Carpentry tools and other things in the suit scheduled property. But he denies for the suggestion that it is also clearly found that the defendant is in possession and enjoyment of the suit scheduled property. However, he denies for the suggestion that as per Ex.A-1 and Ex.A-2, they were never in possession and enjoyment of the suit scheduled property.
17.Furthermore, it is submitted that he has not filed any objections for the Advocate-Commissioner’s report. Furthermore, he admitted the execution of Ex.A-1 and Ex.A-2 by Zubeda Begum in favour of Pandurangaiah Setty and Chand Basha and also the
O.S.No.806 of 20118 I AJCJ Court,
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measurements of the suit scheduled property is East to West 120 feet and North to South 16 feet. He further admitted that the suit scheduled property does not have any door number and further submits that he has not submitted house tax receipt. He further submits that he is not aware whether Nimmanapalle panchayat have revision register with respect of the suit scheduled property. However, he denies for the suggestion that both revision register and FMB, which are showing that the defendants are in possession of the suit scheduled property. He further admitted that except Ex.A-1 to Ex.A-3, he has not filed any document showing that he is in possession and enjoyment of the suit scheduled property. He further admitted that injunction was granted in favour of plaintiff was vacated by the Hon’ble II Addl. District Judge,
Madanapalle in C.M.A.No.09/2014 and he has not preferred any revision against the orders in C.M.A.No.09/2014. However, he denies for the suggestion that he does not have any right and title over the suit scheduled property herein.
18.Subsequently, by the way of his additional chief affidavit, he got marked Ex.A-4 and Ex.A-5, wherein Ex.A-4 is the ownership certificate dated 08.07.2018 issued by the Panchayat Secretary,
Nimmanapalle for Sy.No.459/1 and Ex.A-5 is the letter addressed by
Panchayat Secretary, Nimmanapalle Grampanchayat to S.Ravindra babu relating to entries in the revision register and approval of building plan in the total extent of 356.65 square meters or 426.66 square yards site.
19.Subsequently, after he produced Ex.A-4 and Ex.A-5, he was cross examined at length by the learned counsel for the defendants, wherein, he denied for suggestion that those documents are created documents subsequent to filing of the suit. However, he denies for the suggestion that those documents are not valid documents. However, he also denies for the suggestion that he never stated before Advocate-
Commissioner that he is not in possession and enjoyment of the property. Furthermore, he vehemently denies for the suggestion that he was never in possession and enjoyment of the property.
20.Subsequently, the witness was recalled at the request of the learned counsel for the defendants and again further cross examined, wherein, it is clearly elicited that before his purchase, he verified with respect of right and title over the suit scheduled property and after verification of the same only, he enquired that his vendors are in
O.S.No.806 of 20119 I AJCJ Court,
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possession and enjoyment of the disputed property and after that he purchased the same. However, he admitted that the said Zubeda
Begum had purchased the property with specific metes and bounds, which are intact. Further, he submitted that as per the sale deed, the boundaries are intact. Furthermore, he submitted that as per sale deeds Ex.A-1 and Ex.A-2, he is in possession and enjoyment of 2/3rd share and other purchasers with respect of remaining property and therefore, he is in possession and enjoyment of the suit scheduled property. He denies for the suggestion that his vendors does not have any right and title in order to sell away the joint extent of suit scheduled property.
21.Furthermore it is elicited that he has moved an application to the Grama Panchayat for construction of a house in the disputed scheduled property and constructed a temporary shed and the defendants have not raised any dispute over the said property.
22.In order to support the contention of the plaintiff, another independent witness to the suit filed his chief affidavit as PW-2 and corroborated the version of PW-1 and submitted that the plaintiff had purchased the property and the defendants do not have any right and title over the plaint scheduled property and they are trying to interfere with the possession and enjoyment of the plaintiff over the plaint scheduled property.
23.However, during cross-examination done by the learned counsel for the defendants, wherein, he submitted that he does not know the suit scheduled survey number and also submitted that he is not aware about the suit scheduled property, which was purchased by
Chand Basha and Pandurangaiah Chetty from Zubeda Begum. However, he submitted that Zubeda Begum had purchased the property in the year 1979 and also stated that one Ameena Bi got the property from her husband Afghan Khasim Khan, who got two wives and the name of another wife is Aazamath Bee. Furthermore, he submitted that he was not present during execution of said document by Ameena Bi in favour of Zubeda Begum and also submitted that the boundaries mentioned in the said document are correct. However, he denies for the suggestion that the boundaries are not tallied and it was executed in favour of vendors and it has been executed for more extent, for which, the said
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Zubeda Begum is not entitled. However, he admitted that as per boundaries mentioned in Ex.A-1 and Ex.A-2, it is nothing but each 16 x 120 feet and the same is not narrated in Ex.A-3. Further, he submitted that in the year 2012, Panchayat Secretary issued possession certificate.
However, he denies for the suggestion that the plaintiff is not owner of the property and he was never in possession and enjoyment of the same.
24.Henceforth, from the evidence of PW-1 and PW-2, the learned counsel for the plaintiff submitted that as per Ex.A-1 to Ex.A-6, the plaintiff has been put into rightful possession and enjoyment of the plaint scheduled property and the said Zubeda Begum does not have any right to execute document is incorrect, for which, the learned counsel for the defendants submitted that from the admissions of PW-1 in the cross-examination with respect to the 1st defendant against whom the plaintiff filed the present suit and that the 1st defendant is the original owner of the property and the learned counsel for the defendants wants to impress upon the Hon’ble Court the extent shown in Ex.A-1 and Ex.A-2 is nothing but 120 x 16 feet, but it does not reflect in Ex.A-3. Further, the learned counsel for the defendants vehemently denies even in the evidence of PW-1 and PW-2 with respect of Ex.A-1 to
Ex.A-6.
25.On the other hand, the 5th defendant has filed his chief affidavit as DW-1. DW-1 was initially examined and Ex.D-1 to D-5 were marked and subsequently, he again filed fresh affidavit and earlier examination of DW-1 was taken into consideration and thereby, he was later again recalled and he was examined-in-chief subsequently on 11.07.2019 afresh and thereby, he reiterated the averments of the written statement and got marked Ex.B-1 to Ex.B-9. However, Ex.B-1 to Ex.B-9 which were marked at first instance are explained in the annexure herein. Furthermore, on quick perusal of Ex.B-1, which is nothing but original gift settlement deed dated 29.03.1953 executed by the original owner Mandenyam Khasim Khan in favour of his daughter
Khathun Bee. Ex.B-2 is the sale deed dated 17.10.1985 executed by
Mayana Khathun Bee. Ex.B-3 is the sale deed dated 09.03.1979 executed by Ameena Bi in favour of Zubeda Begum. Ex.B-4 is the certified copy of sale deed dated 09.09.1943. Ex.B-5 is another
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certified copy of sale deed dated 17.09.1957 executed by the defendant’s father. Ex.B-6 is the Gramapanchayat Encroachment register extract. Ex.B-7 is the voters list pertaining to the year 1975.
Ex.B-8 is the positive photographs along with CD and Ex.B-9 is the copy of information furnished by the Panchayat Secretary, Nimmanapalle in respect of the plaint scheduled property.
26.However, subsequently, after marking of Ex.B-8, which are positive photographs, which are available on record, it is the strong contention of the learned counsel for the plaintiff that those photographs are not the photographs and it belongs to some other case and the same was considered and the matter was posted for chief examination of DW-1 and subsequently, Ex.B-10 was got marked. As per Ex.B-10, which are marked as photographs showing the plaint scheduled property and the same is denied by the learned counsel for the plaintiff. However, Ex.B-10 was marked and it is received on record subject to objection.
27.Later, DW-1 was cross examined at length on various occasions done by the learned counsel for the plaintiff and during the said cross-examination, it is important to make a note that Ex.B-11, which is nothing but the served copy of caveat petition filed by the defendants to that of plaintiff pertaining to the suit scheduled property.
However, the positive photographs which was confronted to the witness during cross-examination with respect to the disputed property, and the said photograph was admitted by DW-1, which was marked as Ex.B-12.
During the course of cross-examination of DW-1, Ex.A-6 also got marked, which is the certified copy of registered gift settlement deed
dated 30.03.1953 executed by Mayana Khasim Khan.
28.Furthermore, on careful perusal of entire evidence of DW-1, wherein, he was cross examined before the learned Advocate-
Commissioner initially and subsequently, the rest of the cross- examination was done before this Hon’ble Court and during cross- examination done by the learned Advocate-Commissioner, it is elicited that he is giving evidence on behalf of other defendants and the suit scheduled property is situated in Sy.No.459/1 of Nimmanapalle Revenue
Village and his grandfather’s name is Mandyem Khasim Khan and the same is found place in the revenue records. Furthermore, it is elicited
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that since the said land is Gramakantam land and it was taken into mutation in the revenue records. Further, it is also elicited that there was no separate patta issued in favour of his great grandfather by name
Mandyam Khasim Khan by the revenue authorities. Furthermore, it is admitted that the beneficiary under Ex.B-1, which is gift deed, one
Khatun Bee, who is none other than the daughter of donor by name
Mandyam Khasim Khan. He further admitted that the property was gifted by his great grandfather by name Mandyam Khasim Khan under
Ex,.B-1 in favour of his daughter Khatun Bi with specific boundaries
dated 29.03.1953. Furthermore, he also admitted with respect of
boundaries, which are mentioned in Ex.B-1 and also admitted that as per actual boundaries of the said property towards West, there is Sandu
Dova, towards North, the land of Sabjan, towards East, there is Raja
Bata and towards South, there is land of one Nagaraja Subba Rao and
Abdul Rahiman Khan. He further admitted that the boundaries even now are the same and asre in intact. He further admitted that the property is situated in between the said boundaries as under Ex.B-1.
Furthermore, he also admitted that the property, which is covered under
Ex.B-1 came into the hands of Saheb Khan @ Babjan as under Ex.B-2.
He admitted that he constructed a building in the property purchased under Ex.B-2 and he is carrying on business and also admitted that there is no dispute as per Ex.B-1 and Ex.B-2.
29.Furthermore, DW-1 also admitted that the daughter of
Mandyam Khasim Khan by name Khatun Bee was enjoying the property as under Ex.B-1 and after execution of Ex.B-2, his grandfather by name
Ghani Khan and his father by name Syfulla Khan got disputed Ex.B-2 but they have not issued any legal notice or filed any suit disputing
Ex.B-2. Furthermore, it is elicited that the plaintiff has filed the present suit against the defendants and they have not filed any separate suits against Saheb Khan @ Babjan or the plaintiff herein concerning the suit scheduled property. He further admitted that he admitted that his grandfather by name Mandyam Khasim Khan had two wives and after demise of first wife, he got married the second wife by name Ameena
Bee. He was confronted with the certified copy of registered gift settlement deed dated 30.03.1953 and he admitted the same, which is got marked as Ex.A-6 during the cross-examination before learned
Advocate-Commissioner. However, he denies for the suggestion with
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respect of boundaries but he admitted that the said boundaries are still intact today herein. It is further elicited that the property, which is situated in between the said boundaries is conveyed as per Ex.A-6 and is in intact and it is confronted with that of Ex.B-1, but he stated that the measurements, which are mentioned as per Ex.B-1 and Ex.A-6 and the vendors are entitled to the said extents only and they have subsequently, sold away some more extent.
30.However, on careful perusal of entire cross-examination of
DW-1, he admitted that the encroachment register, which got marked as
Ex.B-6 and information furnished by the Panchayat Secretary under
Ex.B-9 are not obtained through proper channel and further, it is also admitted that Ex.B-6 is the Xerox copy of Encroachment Register and he denies for the suggestion that Ex.B-6 does not contain the authorized signatures of issuing authority. He further admitted that as per information furnished by the Panchayat Secretary in the year 2004-2005 in the name of Mayana Saheb Khan is registered the “Danthula Middhe” and Poorillu is pulled down and measurements were allotted to an extent of 12 x 12 = 144 square feet for the said “Danthula Middhe”. He further admitted that the Revision Register for the year 2004 and 2005 was registered in the name of Pandurangaiah Chetty asnd mentioned that the Danthula Middhe and Poorillu is pulled down. He further admitted that in the year 2013, the building plan was approved in the name of Ravindra Babu and also admitted that as per the Revision
Register, which stands in the name of Mayana Saheb Khan,
Pandurangaiah Chetty and Ravindra Babu names are mentioned. He also admitted that as under Ex.A-4, the ownership certificate was issued to the plaintiff. Though he added that the ownership certificate under
Ex.A-4 issued to him, but no such document is filed on record and the same is admitted.
31.Furthermore, he admitted in the cross-examination that as per Ex.A-5, the plaintiff is in possession and enjoyment of 246.66 square yards and the plaintiff is claiming more extent rather than 144 square feet. However, he denies for the suggestion that the plaintiff is not claiming any more such extent. Furthermore, he denies for the suggestion that as per his written statement, he had taken specific plea that the plaintiff do not have any extent in the suit scheduled survey number. Furthermore, he also admitted with respect to Ex.B-1, which
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is nothing but gift deed executed by his grandfather Afghan Khasim
Khan in favour of her daughter dated 29.03.1953. He also admitted with respect to the boundaries as mentioned in the said gift deeds.
Further, he also admitted that as per Ex.B-2, Mayana Saheb Khan came into possession and enjoyment of the property. He also admitted that on 30.03.1953, his grandfather has conveyed 2/3rd of joint share to his second wife under two gift settlement deeds. He further admitted that the boundaries mentioned under Ex.B-1 and Ex.A-6 are one and the same. He further admitted that 1/3rd of joint share was conveyed by his grandfather to his daughter under Ex.B-1 and 2/3rd of joint share was conveyed to his second wife under Ex.A-6. Furthermore, he admitted that there are no disputes between Kathun Bee and Mayana Saheb Khan till 2011. However, he denies for the suggestion that they did not object with respect to conveyance of sale deeds by Ameena Bee to
Zubeda Begum or the said Zubeda Begum selling away the property to the said Pandurangaiah Chetty and the plaintiff is having right and title over the said property.
32.Furthermore, during his cross-examination, another core admissions is elicited with respect of Ex.B-11, which is the served copy of caveat petition. He further admitted that as per Ex.B-11, the
Northern boundary for the caveat schedule property shown as the house of Mayana Saheb Khan. He further admitted that Ex.B-11 was drafted as per his instructions. He also admitted that as per Ex.B-11, the schedule was mentioned as 35 feet running from North to South,for which, he vehemently contradicts his earlier version. He further admitted that the disputed scheduled property, the plaintiff is claiming 120 feet running from East to West, for which, he has mentioned the same in the caveat schedule as 88 feet. Furthermore, he admitted that at the time of filing of caveat petition, he does not know the measurements and that there is difference in mentioning the said property.
33.Furthermore, DW-1 was confronted with Ex.B-12, which is positive photograph and also stated that it is nothing but the present suit scheduled property in the photograph, which got marked Ex.B-12.
He further admitted that the building shown in Ex.B-12 belongs to
Mayana Saheb Khan. He adds that the said Mayana Saheb Khan
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constructed the building in the year 1994 highhandedly in the Northern side of the present suit scheduled property. Furthermore, he also admitted that as per the caveat petition, there is no such mentioning of the carpentary shed in the suit scheduled property. Further, he also admitted that the Advocate-Commissioner visited the property and he has mentioned that there is no door number for the shed said to have been constructed in the property and it is kept open. However, he denies for the suggestion that the suit scheduled property was never in possession and enjoyment of the defendants herein and the plaintiff have been in possession and enjoyment of the same and only to grab the property, the defendants have taken false plea herein.
34.Furthermore, he admitted that as per Ex.B-4 and Ex.B-5, which are sale deeds, which do not relates with the plaint scheduled property. Furthermore, it is clearly elicited that Ex.B-4 and Ex.B-5 does not relates to the suit scheduled property and they are not helpful to the defendants. However, he denies for the suggestion that once Ex.B-1 was executed, there is no probabilities of share of other wife and she cannot claim any right in the said property. Furthermore, suggestions were put forth to DW-1 that the defendants herein as per their written statement have taken different pleas and now, he is taking different plea, for which, he submitted that at the time of filing of written statement, he is not fully aware of the facts and now, he is aware of the case proceedings and denies that he is taking different plea during filing of chief-affidavit and during entire cross-examination. However, on a whole, he denies for the suggestion that the suit scheduled property is in possession and enjoyment of the plaintiff and defendants does not have any right and title over the plaint scheduled property.
35.Subsequently, after lengthy cross-examination of DW-1, the defendants got examined another witness by name Budda
Venkatramana as DW-2 and he corroborated the contentions of DW-1 and he corroborated the same in his examination-in-chief. But, during cross-examination, he admitted that he was not present at the time of execution of gift deeds executed by Afghan Khasim Khan in favour of his wife Ameena Bee and daughter Kathun Bee. However, he denies for the suggestion that the said Ameena Bee is the concubine of the said
Afghan Khasim Khan and that he is deposing false. Furthermore, he denies for the suggestion that the property was purchased by the father
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Madanapalle.
of the plaintiff and also Chand Basha Khan from the original vendor, they have acquired the right and title over the property. However, he denies for the suggestion that he is not aware of the case facts and he is deposing false only to help PW-1 and he is sole responsible person for the dispute. However, he denies for the suggestion that the said
Ameena Bee is the concubine of the said Afghan Khasim Khan and he is deposing false. Furthermore, he stated that he never stated in his affidavit that the said Ameena Bee is the concubine/keptmistress of the said Afghan Khasim Khan.
36.Therefore, after the evidence of PW-1, PW-2, DW-1 and
DW-2, the learned Advocate-Commissioner got examined himself as
CW-1 and he was examined in-chief as well as cross examined, wherein, he submitted that after receiving the Commissioner’s warrant, he issued notices to both counsels and he visited the suit schedule property on 12.06.2012 and he inspected the property, to note down the physical features of the said property, wherein, towards East, there is Raja
Veedhi, towards West, there is Kanduru Road, towards North, there is house of M.Sarappa and towards South, it is the house of Sabjan. He further submitted that two boundaries for the suit scheduled property are fixed boundaries and there was no objection either by both parties for the measurements of the said property. He further submitted that he has measured the shed, which was located in the suit scheduled property and running 10 feet from East to West and 22 feet from North to South. Thereby, he also stated that there was no foundation and it was open shed and temporarily placed for doing carpentry tools and material in the said shed. Thereby, the Advocate-Commissioner has filed report as well as work memos, notices, rough sketch got marked as
Ex.C-1.
37.However, the learned Advocate-Commissioner was cross examined at length by the learned counsel for the defendants herein, wherein,it is elicited that as per point No.2 of the work memo issued by the counsel for the defendants, he answered that he had visited the suit scheduled property with respect to what is available in the said property, for which, he denies for the suggestion that he has not inspected the suit scheduled property as per work memos and his report is not maintainable as stated that, the point No.2 was beyond the scope to
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answer the point as per work memo. However, he admitted that none of the counsels had requested in order to take photographs and he has not taken any photographs. However, he admitted that there are two calendars, wherein one belongs to Muslim community and another belongs to Christian community. During cross-examination, he admitted that he has not answered the work memos properly and there has a wooden reaper and also availability of calendars and wooden reaper and he has not seized the other material. Furthermore, he was confronted with the photograph Ex.B-10 at the time of his visit and he submitted that there is no such shed as per Ex.B-10 and it is not one and the same.
38.Subsequently, even during further cross-examination by the learned counsel for the defendants, he stated that he executed warrant as per facts and circumstances and he did his best and denies for the suggestion that he has not answered point No.2 of the work memo, which does not disclose that there was a gateway in his report.
However, he stated that he made an observation that there is no such gate for the shed and there was wooden reaper and the name of Afghan
Khasim Khan was mentioned on it.
39.However, after entire evidence, which has been let in on either hand and the evidence of CW-1, the learned counsel for the plaintiff has filed written arguments along with bunch of citations and on the other hand, the learned counsel for the defendants also filed bunch of citations along with his written arguments. However, the contention of learned counsel for plaintiff, he submits that as per the ratio laid in the said judgments, the plaintiff clearly proved his case that he is in possession and enjoyment of the plaint scheduled property and the learned counsel for the defendants have failed to prove their case and thereby, submits that the suit is to be decreed and further the learned counsel for defendant basing on his written arguments and citations submits that property is conveyed to more extent and hence, plaintiff is not entitled for relief of declaration of right and hence, suit is liable to be dismissed.
40.However, putting into nutshell the entire case along with written arguments, wherein the learned counsel for the plaintiff
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reiterated the contents of the plaint as well as the written statement and as per the memo of evidence, PW-1 and PW-2 are examined and on the other hand, DW-1, DW-2 and CW-1 were examined. Furthermore,
Ex.A-1 to Ex.A-6 got marked on behalf of the plaintiff and Ex.B-1 to
Ex.B-12 coupled with Ex.C-1 got marked on behalf of the defendants along with Advocate-Commissioner’s report.
41.Further, the learned counsel for the defendants vehemently submitted his arguments that the property originally belongs to one
Mandyam Khasim Khan and he has executed two separate gift deeds one in favour of his daughter by name Khathun Bee as per Ex.B-1 and other to his wife. Therefore, 1/3rd share under Ex.B-1 is given to
Ameena Bee and 2/3rd share is given to Khathun Bee. Furthermore, the second wife of Khasim Khan by name Ameena Bi had sold out 2/3rd share to Zubeda Begum under Ex.B-3 and Ex.B-4 and thereby, she is ceased to be the owner of the suit scheduled property and hence, the plaintiff cannot get more right from his vendors and hence, his right cannot be declared. Further, on the other hand, the name of plaintiff has been mutated in revenue record and entered into partial khararunama and thereby, property was purchased from Shaik Zubeda
Begum. For which, the plaintiff also stated that as per Ex.A-1 to Ex.A-5 and Ex.A-6 and corroborative evidence of PW-2, the plaintiff has proved his case and further submits that there are contradictions in the evidence of DW-1, wherein, as per caveat petition filed by the defendants admitting that even the boundaries are incorrect and subsequently, after filing of written statement, the same is brought to light of this Hon’ble Court and therefore, it is nothing but act of after thought. Further, the photographs filed by the defendants as under
Ex.B-10, it is the contention of the plaintiff, that the photographs does not belong to suit scheduled property and it is taken somewhere else and as per Ex.B-4 to Ex.B-6, which are sale deeds, they are not helpful to the case of the defendants and the defendants are not aware of the measurements of the suit scheduled property and the plaintiff is entitled for the entire plaint scheduled property. Furthermore, though it is mentioned that the name of Mayana Saheb Khan and as per Ex.B-6 information given by the revenue authorities for Encroachment Register and it is nothing but Xerox copy of the same and it is not credible document and thereby, it could not be proved and the same is taken
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into consideration. Further, the defendants in turn helped the plaintiff by way of filing of Ex.B-9, which show that the plaintiff is in possession and enjoyment of the suit scheduled property and there is Danthula
Middhe constructed by the vendor of the plaintiff and therefore, it is further strong case of the plaintiff that he has constructed the shed and the shed as under Ex.B-12 does not belong to the suit scheduled property and same is also corroborated by CW-1.
42.Furthermore, as per the Commissioner’s report as under
Ex.C-1, there is possibility of placing the wooden reaper instantly and temporarily in the shed and he found two calendars which belongs to
Muslim community as well as the Hindu and Christian community and the same were implicated for the purpose of this Court and it has been placed herein. Further, it is clearly elicited that there are no doors and seals for the said temporary shed. However, taking into consideration of the chronological sequence of the case, the learned counsel for the plaintiff submitted that the plaintiff has proved the right and title of the plaintiff, beyond all preponderance of probabilities.
43.However, the learned counsel for the plaintiff relies upon the ratio laid by our Hon’ble Supreme Court of India in “AIR 1960
Supreme Court 100 in between Narayan Bhagwantrao Gosavi
Balajiwale Vs Gopal Vinayak Gosavi and others”, wherein it was held that_ “Burden of proof – Meaning of – Question of burden of proof looses its importance when both sides have let in evidence. The expression "burden of proof" really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that on a contested issue one of the two contending parties has to introduce evidence. Whichever way one looks, the question is really academic in the present case, because both parties have introduced their evidence on the question of the nature of the deity and the properties and have sought to establish their own part of the case. The two Courts below have not decided the case on the abstract question of burden of proof; nor could the suit be decided in such a way. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence
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can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous”.
44.Furthermore, the learned counsel for the plaintiff relies upon the ratio of our Hon’ble Supreme Court of India in “AIR 1987 Supreme
Court 1242 in between Ram Sarup Gupta (Dead) By Lrs Vs
Bishun Narain Inter College and others”, wherein it was held that_ “It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise”.
45.Furthermore, the learned counsel for the plaintiff relies upon the ratio of our Hon’ble High Court of Himachal Pradesh in “AIR 1980
Himachal Pradesh 8 in between Sawan Singh and others Vs
Radha Kishan and others”, wherein it was held that_ “The direction to the additional written statement with only mean that the additional written statement has to confine to amendments made in the plaint”.
46.In addition to that, the learned counsel for the plaintiff also relies upon the ratio of our Hon’ble High Court of Judicature, Andhra
Pradesh at Hyderabad in “2011 (4) ALD 537 in between Rukmini
Bai @ Laxmi Bai and others Vs K.Mohanlal”, wherein it was held that_ “Land Laws – Boundaries and survey numbers – Difference between – Boundaries will prevail over extent or survey numbers”.
47.In addition to that, the learned counsel for the plaintiff also relies upon the ratio of our Hon’ble High Court of Calcutta in “AIR 1934
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Calcutta 851 in between Bhola Nath Chattopdhyay Vs Mrityunjay
Chattopdhyay and others”, wherein it was held that_ “Deed – Construction – Boundaries specified and definite – Land within boundaries alone is transferred – Area must be deemed to be approximately given”.
48.Furthermore, the learned counsel for the plaintiff also relies upon the ratio of our Hon’ble High Court of Andhra Pradesh in “AIR
1971 Andhra Pradesh 74 in between Chitturi Perraju and
another Vs Yednapudi Venkamma and others”, wherein it was held that_ “Evidence Act (1 of 1872), S.95 – Description of property in document – Boundaries given with precision – Boundaries prevail even if there is some discrepancy about actual extent of land”.
49.However, the learned counsel for the plaintiff relies upon the ratio of our Hon’ble Supreme Court of India in “AIR 1963 Supreme
Court 1879 in between Sheodhyan Singh and others Vs Mst.
Sanichara Kuer and others”, wherein it was held that_ “Civil P.C. (5 of 1908), O.21 R.94 – Conflict between boundaries and Khata No and Plot No. - Khata No. and boundaries held prevailed”.
50.Furthermore, the learned counsel for the plaintiff also relies upon the ratio of our Hon’ble High Court of Andhra Pradesh in “AIR
(35) 1948 Privy Council 207 in between The Palestine Kupat Am
Bank Co-operative Society Ltd., Vs Government of Palestine and
others”, wherein it was held that_ “Deed – Construction – Grant of land – Conflict between statement of area and description by boundaries – Description by boundaries is to be preferred. In construing a grant of land a description by fixed boundaries is to be preferred to a conflicting description by area. The statement as to area is to be rejected as false demonstration”.
51.Furthermore, the learned counsel for the plaintiff also relies upon the ratio of our Hon’ble High Court of Judicature, Hyderabad in
“1998 (3) ALT 473 (S.B.) in between Bongu Ramulu and another
Vs Gudur Narender Reddy”, wherein it was held that_
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“It is the duty of Court to decide the same on the basis of oral and documentary evidence that may be adduced by parties during trial of suit – Such a function cannot be entrusted to Commissioner”.
52.Furthermore, the learned counsel for the plaintiff also relies upon the ratio of our Hon’ble High Court of Judicature, Hyderabad in
“2000 (6) ALT 79 (D.B.) in between T.Hari Kumar Naidu Vs Smt.
Prameela”, wherein it was held that_ “Admitted fact need not be proved – Dismissal of divorce petition filed by appellant – Husband without considering the entire evidence in proper perspective”.
53.Henceforth, relying on the citations, it is submitted by the plaintiff that the plaintiff has proved his right and title. Furthermore, the contention of the defendants that the plaintiff has got entered into for more extent, for which, he could not prove the extent submits that boundaries would prevail and thereby, the boundaries are still intact and property undisputedly being identified and thereby, it is proved by the plaintiff that the plaintiff has proved that he is in possession and enjoyment of the suit scheduled property and prays the Hon’ble Court in order to decree the suit.
54.As per the contention of the defendants is that one Khatun
Bee and Zubeda Begum have alienated more extent and the property has been gifted by Afghan Khasim Khan to Khatun Bee and Ameena Bee i.e., 16 x 40 feet and the extent occupied is 5760 square yards.
Thereby, the property sold for an extent of 2/3rd share as under Ex.A-6 showing 2/3rd of (11.5 x 25 square yards), which is around 191 square yards, and now plaintiff claiming 426 square yards as under Ex.A-1 and
Ex.A-2 as more extent sold by Zubeda Begum does not bind on Afghan
Khasim Khan and the defendants herein. It is further contention of the defendants that the plaintiff does not have any manner of right and title over the entire suit scheduled property. In addition to that, the further contention of the defendants is that the said Mayana Afghan Khasim
Khan as per Ex.A-6, it is clearly mentioned that he gifted some property and that the vendor’s vendor of the plaintiff do not having any right to alienate the extent mentioned in Ex.A-6. Thereby, it is the further contention of the defendants that the plaintiff cannot claim the suit
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scheduled property and prays the Hon’ble Court in order to dismiss the suit.
55.However, the learned counsel for the defendants relies upon the ratio of the Hon’ble High Court of Madras in “1983 (2) MLJ 340
(Madras) between Dina Malar Publications, A Tamil Daily, Reptd.,
by its Partner, R.K.Krishnamoorthy Vs. The Tiruchirapalli
Municipality, Reptd., by its Executive Authority, The
Commissioner”, wherein it is held that_ “In my view, since the area of the land sold to the defendants was absolutely clear in the sale deed itself which was duly proved by the documentary as well as the oral evidence, the question of the boundaries prevailing over the area of the land mentioned in the sale deed did not arise”.
56.Furthermore, the learned counsel for the defendants submitted that the plaintiff without depending upon the weakness of the case of the defendants, he had failed to prove his case. However, PW-1 admitted in his cross-examination that carpentry tools and calendars are placed in the suit scheduled property and temporary injunction was set aside as per the appeal preferred by the defendants herein and therefore, the plaintiff is not entitled for the suit scheduled property.
It is further contention of the defendants that the ancestors of the defendants were enjoying the plaint scheduled property and the plaintiff could not prove his case and prays the Hon’ble Court in order to dismiss the suit.
57.Therefore, taking into consideration the pleadings, evidence and written arguments and submissions made by either counsels on record and in the light of the above discussion, it is the case of the plaintiff that the plaintiff is entitled for declaration of his right and title over the suit scheduled property lying in Sy.No.459-1, which is consisting of the temporary shed and further, the whole case of the plaintiff and basing on reliance on the documents filed along with the plaint and Ex.B-1 and Ex.A-6 which is executed by Afghan Mandyam
Khasim Khan in favour of his daughter by name Khathun Bee as well as his wife Ameena Bee and as per gift deed, he has clearly sold out 2/3rd share to his wife and 2/3rd share to his daughter over the property in
Sy.no.459-1. Furthermore, as per Ex.A-6 which is gift deed dated
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30.03.1953 executed by Afghan Khasim Khan and he conveyed his 2/3rd joint share and the same was sold out by the said Ameena Bi within those boundaries to one Shaik Zubeda Begum as under Ex.B-3 and another sale deed dated 26.04.1999. Furthermore, the said Ameena Bi had sold out the property as under Ex.B-4, which is other sale deed to an extent of 1/3rd joint share and earlier she already sold away to
Zubeda Begum under Ex.B-3 another sale deed to an extent of 2/3rd share. Henceforth, the said Zubeda Begum, who had purchased the property of her 1/3rd share as well as 2/3rd share of entire share of 2/3rd joint share of Ameena Bee had sold out 1/3rd share each in favour of
Saparam Pandurangaiah Chetty with specific boundaries to an extent of
East to West: 120 feet and North to South: 48 feet and one Chand
Basha Khan and Pandurangiah Chetty had executed Ex.A-3 in favour of the plaintiff herein. Henceforth, as per Ex.B-1 and Ex.B-2 and Ex.A-1 to Ex.A-3 and Ex.A-6, the plaintiff is entitled to 2/3rd share in the said property, which is equivalent to 426.66 square yards of the property.
58.Furthermore, the photographs i.e., Ex.B-8 and Ex.B-10, which got marked in the evidence of DW-1 in open Court, it is the contention of the counsel for the defendants that Ex.B-8 are not the photographs, which are pertaining to suit scheduled, but however they were through DW-1, but however, it is elicited during examination of
Advocate-Commissioner, who visited the suit scheduled property and was examined as CW-1 and got confronted with Ex.B-8 and stated that they are not taken during his visit and the property is not the suit scheduled property. However, with respect of Ex.B-10, CW-1 also stated that it belongs to some other property. Furthermore, even the pages of Encroachment Register Ex.B-6 supports the case of the plaintiff.
Therefore, as per record, even the name of plaintiff was also mutated in
Grama Panchayat records. Thereby, the plaintiff has proved his case and the said Encroachment Register, which is admittedly Xerox copy, it is not brought on record the source of receiving the said record and information received by DW-1 could not be looked into and do not support the case of defendants as the said information is pertaining to
Encroachments and it is mentioned as highly objectionable.
59.Therefore, the property originally belongs to Afghan Khasim
Khan, who had two wives and the vendors of the plaintiff got the plaint
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schedule property as per Ex.A-1 and Ex.A-2. As per plea of the defendants in their written statement that the plaintiff is not in possession, which is self contradictory plea taken at the time of filing of caveat petition and it does not helpful to the case of the defendants.
However, the contention of the defendants is that they have been in possession and enjoyment of the property since time immemorial and the disputed scheduled property was also not proved and it is clearly admitted by the defendants that they are not in possession and enjoyment of the plaint scheduled property. Thereby, putting into nutshell, the admitted fact on either side is the full extent of land in
Sy.No.459/1, which is 16 x 40 = 640 square yards. And as under
Ex.A-6, the said mandyam Afghan Khasim Khan sold out 2/3rd joint share, which amounts to 426.66 square yards and in turn the said
Ameena Bee sold, but her entire 2/3rd joint share to Shaik Zubeda
Begum as per the sale deeds, dated 09.03.1979 and dated 26.04.1979 as under Ex.B-3 and Ex.B-4 and accordingly, Shaik Zubeda Begum got entitled to 426.66 square yards. Later, the said Shaik Zubeda Begum sold out her entire 2/3rd joint share to Saparam Pandurangaiah Setty under sale deed dated dated 04.02.1986 and Chand Basha Khan as under Ex.A-2, wherein she was entitled for 426.66 square yards and accordingly, the plaintiff who in turn p.urchased the property under
Ex.A-3, got acquired right and title for the said 2/3rd share which amounts to 426.66 square yards out of total extent of 640 square yards.
Further, there are categorical admission even in the evidence of DW-1 with respect to the suit scheduled property, which is described within specific boundaries and same is intact on ground,henceforth, it is established principle of law that boundaries prevails rather the extents and the intentin of parties is clear with respect to sale transactions and further, the contention of defendants that Ameena Bee sold more extent to Zubeda Begum could not be proved by any documentary evidence and as per the law of inheritance under Mohammedan Law, the gift settlement deeds executed by Mandyam Afghan Khasim Khan as under
Ex.B-1 and Ex.A-6 during his life time hold absolutely good and no extent is left in Sy.No.459/1, for further inheritance. Thereby, the property does not remain to be devolved as per law of succession.
Henceforth, it is proved by the plaintiff that the vendors of the plaintiff came into possession of the property since the date of execution of
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Ex.A-6 as Ex.B-1 in favour of his wife and daughter, the property gets devolved to their respective shares and the disputed share of the property was not fallen to the share of other wife. Therefore, as the suit is filed for declaration and for consequential relief of permanent injunction, Ex.B-5 and Ex.B-6 are not much helpful to them as it belongs to other property. As already discussed above when the registered documents executed by the original owner of the property and the Law of Succession does not have any role. Therefore, the plea taken by the defendants could not be proved. Furthermore, the plaintiff has established his case that the plaint scheduled property belongs to him beyond all preponderance of probabilities. Henceforth, the plaintiff has proved his case against the defendants. Accordingly, the issue is answered.
60. ISSUE No.2:
In the light of the above discussion under issue No.1, the suit is hereby decreed in favour of the plaintiff by declaring the right and title of the plaintiff over the plaint scheduled property over the vacant land in Sy.No.459-1 for an extent of 426.66 square yards including temporary constructed cement roofed shed and also the plaintiff is entitled for the consequential relief of permanent injunction in favour of the plaintiff, restraining the defendants 1 to 5 and their men from interfering with the plaintiff’s peaceful possession and enjoyment over the plaint scheduled property.
61.In the result, the suit is decreed in favour of the plaintiff and declaring the right and title of the plaintiff over the plaint scheduled property over the vacant land in Sy.No.459-1 for an extent of 426.66 square yards including temporary constructed cement roofed shed and also consequential relief of permanent injunction is granted in favour of the plaintiff, restraining the defendants 1 to 5 and their men from interfering with the plaintiff’s peaceful possession and enjoyment over the plaint scheduled property. Costs ordered.
Dictated to the Stenographer Grade-I, transcribed by him, corrected and pronounced
by me in the open Court on this the 19th day of May, 2023.
I ADDL. JUNIOR CIVIL JUDGE,
MADANAPALLE.
O.S.No.806 of 201127 I AJCJ Court,
Madanapalle.
APPENDIX OF EVIDENCE
Witnesses examined for
Plaintiff:- Defendants:-
PW-1 : S.Ravindra Babu.DW-1 : Afghan Khasim Khan. PW-2 : K.Eswar Singh.DW-2 : B.Venkatramana.
Exhibits marked on behalf of the plaintiff:-
Ex.A-1:Registered sale deed dated 04.02.1986 executed by Sheik Jubeda Begum and Sheik Abdul Rasool in favour of S.Pandurangaiah Chetty.
Ex.A-2:Registered sale deed dated 04.02.1986 executed by Sheik Jubeda Begum and Sheik Abdul Rasool in favour of Chand Basha Khan.
Ex.A-3:Registered sale deed dated 02.11.2011 executed by Mayana Chand Basha Khan and Saparam Pandurangaiah Chetty in favour of the plaintiff.
Ex.A-4:Ownership of Certificate dated 08.07.2018 issued by Panchayat Secretary, Nimmanapalle for Sy.No.459-1.
Ex.A-5:Letter addressed by Panchayat Secretary, Nimmanapalle Gram Panchayat to S.Ravindra Babu relating to entries in the revision register and approval of building plan.
Ex.A-6:Certified copy of registered gift settlement deed dated 30.03.1953.
Exhibits Marked on behalf of defendants:-
Ex.B-1:Original gift settlement deed dated 29.03.1953 executed by the original owner Mandyam Khasim Khan in favour of his daughter Khathun Bee.
Ex.B-2:Sale ded dated 17.10.1985 executed by Mayana Khathun Bee.
Ex.B-3:Sale deed dated 09.03.1979 executed by Ameena Bee in favour of Zubeda Begum.
Ex.B-4:Registration copy of sale deed dated 09.09.1943.
Ex.B-5:Registration copy of the sale deed dated 17.09.1957 executed by the father of defendants.
Ex.B-6:Copy of Grama Panchat Encroachment Register extract.
Ex.B-7:Voters list pertaining to the year 1975.
Ex.B-8:Photographs with CD.
Ex.B-9:Copy of information furnished by the Panchayat Secretary, Nimmanapalle in respect of plaint scheduled property.
Ex.B-10:Positive photograpyhs along with CD (Marked subject to objectiion).
Ex.B-11:Certified copy of served copy ofthe Caveat petition.
Ex.B-12:Positive photograph.
O.S.No.806 of 201128 I AJCJ Court,
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Exhibits Marked through Advocate-Commissioner:-
Ex.C-1:Advocate-Commissioner’s report along with work memos, warrant issued by the Hon’ble Court and notice issued to the counsel in I.A.No.184/2012.
I AJCJ,
MPL.