Sri G.Ganga Raju

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 1

IN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE (FTC) AT ANAKAPALLE

Present: Sri G.GANGA RAJU

Principal Senior Civil Judge,

FAC: Addl. Senior Civil Judge(FTC) Anakapalli

Thursday, this the 6 th day of July, 2023

ORIGINAL SUIT NO. 108/1997

Between:

1.Adari Satyanarayana (Died)

2.Adari Annapurna, W/o Satyanarayana, Hindu, Age: 55 years, resident of Mangalavarapu Peta, Munagapaka Mandal.

3.Adari Santhosh Appala Satya Prasad @ Prasad, S/o Satyanarayana

Hindu, Age: 40 years, residnt of Mangalavarapu Peta, Munagapaka

Mandal.

4.Surisetti Loka Triveni, W/o Narendra, Age: 30 years Hindu, Household duties and residing at Allipuram, Visakhapatnam

5.Adari Aruna Kumari, D/o. Late Satyanarayana, Age: 29 yers, Hindu, and resding at Mangalavarapupeta Village, H/o. Patipalli, Munagapaka

Mandal, Visakhapatnam District.

(Plaintiffs 2 to 5 added as LRs of deceased 1 st plaintiff as per orders in IA 35/2020 dt.17.6.2021)

..Plaintiffs

And:

1.Bheesetti Mahalaxmamma (died)

2.Bh.Adilakshmi (died)

3.Bheemarasetty Apparao S/o. Appalanaidu, Age: 44 years, Hindu,

Cultigvation, residing at Vadsrapalli Village, Munagapaka Mandala,

Visakhapatnam District.

(3 rd Defendant added as per orders in IA 41/2006 dt.17.4.2008) … . Defendants

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 2 This suit has come before me on 11.05.2023 for final hearing in the presence of Sri.S.D.Jagannadha Raju, Advocate for Plaintiffs 2 to 5 and

Sri P.A.Narasimham, Advocate for D3 and upon perusal of material available on record, upon hearing and having stood over for consideration till this day, this court delivers the following:-

J U D G M E N T

1.This is a suit filed by the plaintiff against the defendants 1 and 2 for partition of the plaint schedule properties into three equal shares and for allotment of one such share to the plaintiff after converting the joint possession into separate possession and for future mense profits that can be determined by way of separate application, and for costs.

(i)During the pendency of the suit, sole plaintiff died, plaintiffs 2 to 5 were added as Legal heirs of plaintiff. D1 and D2 died and 3rd defendant was added.

02.The Synoptical Resume of plaintiff’s claim is as follows:-

(i)One Bheemisetty Balaramaswamy @ Ballayya is the husband of the 1st defendant and they had two daughters i.e., the 2nd defendant and Adari

Appalanarasamma- wife of 1stplaintiff. The 1stplaintiff’s wife

Appalanarasamma died during the year 1987 intestate leaving behind her, the 1st plaintiff as the sole surviving heir to her properties. After the death of 1st defendant, entrusted the properties to the 1st plaintiff to manage the affairs of the property as she had no male issues. Thus the 1st plaintiff used to manage the plaint schedule properties since the day of his marriage with

Appalanarasamma. The plaint schedule properties are the self acquired properties of late Bheesetty Balaramaswamy alias Ballayya and he died during 1973 intestate leaving behind him, his wife and two daughters i.e.,

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 3 the defendants and the wife of 1st plaintiff-Appalanarasamma and all are entitled to equal shares. The 1st plaintiff’s wife – Appalanarasamma died during the year 1987 and after her death, 1st plaintiff succeeded her share and enjoying the schedule property jointly with the 1st defendant.

(ii)Even after the death of the 1st plaintiff’s wife, the 1st plaintiff continues to be enjoying the schedule properties, the 1st plaintiff had some disputes with his brother and taking advantage of it one of his brothers instigated the 1st defendant, therefore, the 1st defendant with a view to deprive the 1st plaintiff right filed a suit on the file of Principal District Munsif

Court, Anakapalle in OS 173/1997 seeking for an injunction and the 1st plaintiff contesting the matter. Since the 1st defendant is acting against the interest of the joint rights of the schedule properties, the 1st plaintiff does not want to keep the property joint with the defendants. Therefore, he demanded for partition of properties into 3 equal shares. During the pendency of the suit, the sole plaintiff died intestate leaving behind the plaintiffs 2 to 5 as his legal representatives and they succeeded to the estate of the deceased.

Hence this suit.

03.The 1st defendant filed written statement contending that after the death of Balaramaswamy, Mahalakshmamma has succeeded to her husband’s properties and they are Items Nos.1 to 9. Since then she is in absolute possession and enjoyment of the properties with exclusive rights of ownership. So, no properties are joint to the plaintiff and defendants. More over after the death of late Appalanarasamma, since 1984 this plaintiff is not a member of the defendants family, hence he has no right to claim anything in the schedule properties. As per law, the plaintiff has to return the gold,

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 4 silver articles including cash of Rs.50,000/- to the 1st defendant, but the plaintiff did not return the same, on the other hand creating some sort of troubles by filing the suits in order to have unlawful gains from the old lady taking advantage of her innocence. When there is no right in the properties the question of claiming for partition will not arise. In addition to the schedule items, Bheesetti Mahalaxamamma gave amounts to her daughter

Appalanarasamma, who purchased three more assets. After the death of

Appalanarasamma, being the only legal heir, Mahalakshmamma succeeded those properties also, in order to grab these properties after the death of

Appalanarasamma. There is no cause of action for the suit and the cause of action alleged is utterly false and invented. The suit is not maintainable under law and sought to dismiss the suit.

04.(i)The 3rd defendant filed written statement contending that during the life time of late Balaramaswamy his both daughters were married and substantial amounts, gold, silver and other articles were given at the time of marriage. Late Appalanarasamma and plaintiff’s marriage took place in the year 1970. During the marriage the Mahalakshamma gave Rs.50,000/- cash, 30 tulas gold, 500 tulas silver and other ornaments. Later in the year 1984

Appalanarasamma died without any issues. After the death of

Appalanarasamma, plaintiff married another woman by name

Annapoornamma of Allipuram, Visakhapatnam. Since then the present plaintiff has no relation with both the defendants. The plaintiff has begot three children through the said Annapoornamma namely Triveni,

Arunalakshmi and one son by name Appala Satya Prasad. Later the plaintiff who is thrust of money has been demanding the 1st defendant to give some

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 5 property. 1st defendant who has no male issues and who is eking her livelihood on the schedule property did not oblige the unlawful demand of the plaintiff. Plaintiff taking advantage of old age of the 1st defendant made attempts to occupy the schedule property in the year 1997. 1st defendant resisted the highhanded acts of the plaintiff with the help of caste elders and filed a suit against the plaintiff in O.S.173/1997 on the file of Principal Junior

Civil Judge Court at Anakapalle and later the suit was transferred to Principal

Senior Civil Judge’s court, Anakapalle and renumbered as OS 105/2003. The

1st defendant during her lifetime in a sound state of mind executed a registered will dated 28.11.1994 in favour of 2nd defendant Adilakshmi who is the 1st daughter of the 1st defendant. Through the said will the 1st defendant

Mahalakshamma created only life estate of the properties to the 2nd defendant for enjoying the same and absolute rights to the 3rd defendant, as 3rd defendant is the adopted son of 2nd defendant. Since 1994, 2nd and 3rd defendant are in possession and enjoyment of the schedule property.

(ii)The 3rd defendant is the absolute owner of the plaint schedule properties by virtue of the registered will dated 28.11.1994. The 2nd defendant is illiterate and innocent woman whereas the plaintiff is a litigant.

The plaintiff also took the advantage of 2nd defendant for grabbing of schedule properties by filing the suit.

05. Basing on the pleadings, the following issues were settled for trial :

1.Whether the plaintiff is entitled for 1/3rd share in the suit schedule properties in the circumstances stated in the plaint ?

2.Whether during the marriage of wife of plaintiff, D1 gave Rs.50,000/- cash, 30 tulas of gold, 500 tulas of silver and other ornaments to her, if so, what is its effect over the suit ?

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 6

3. Whether the suit of plaintiff is within limitation ?

4.Whether D1 is the absolute owner of the plaint schedule items Nos.1 to 9 properties having succeeded the same from her husband ?

5. To what relief ?

06. On 12.7. 2022 additional issues are framed for trial.

1.Whether the Will deed 28.11.1994 said to have been executed by 1st defendant Bheemisetti Mahalakshmamma in favour of 2nd defendant Bheemarasetti Adilakshmi is true, valid and binding on the plaintiffs or not ? And what is its effect?

2. Whether the Will dated 28.11.1994 said to have been executed by 2nd defendant Bheemisetti Adilakshmi in favour of 3rd defendant Bheemasrasetty Apparao is true, valid and binding on the plaintiffs or not ? And what is its effect ?

3.Whether the 3rd defendant is absolute owner of the plaint schedule properties buy virtue of two registered wills dated 28.11.1994.

4.To what relief?

07.On behalf of the plaintiffs, deceased 1st plaintiff – Sri Adari

Satyanarayana was examined as P.W.1 and the one third party – Ganireddy

Govinda was examined as P.W.2. Exs.A1 to A6 documents were exhibited on behalf of the plaintiffs. Ex.A1 is Receipt dt.26.6.1982, Ex.A2 is Receipt dt.

10.4.1986, Ex.A3 is Tax Receipt, Ex.A4 is Surveyor Report, Ex.A5 is Surveyor

Report, Ex.A6 is Surveyor Report.

08.On behalf of defendants, 3rd defendant - Bheemarasetty Apparao was examined as D.W.1, Third parties Bheemerasetty Apparao S/o.

Ramunaidu was examined as D.W.2, Bheemarasetty Chitti Apparao was examined as D.W.3, Vulluri Ramarao was examined as D.W.4 and Sri Malla

Apalanaidu was examined as D.W.5 and Exs.B1 to B16 were exhibited on behalf of defendants. Ex.B1 is Ryotwari Passbook, Ex.B2 is Ryotwari

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 7 Passbook, Ex.B3 is Ryotwari Passbook, Ex.B4 is Ryotwari Passbook, Ex.B5 is

Land Revenue Receipt dt.12.3.1986, Ex.B6 is Land Revenue Receipt dt.

24.03.1990, Ex.B7 is Land Revenue Receipt dt. 15.03.1993, Ex.B8 is Land

Revenue Receipt dt. 08.01.1994, Ex.B9 is Land Revenue Receipt dt.

27.05.1996, Ex.B10 is Land Revenue Receipt dt. 20.04.1992, Ex.B11 is Land

Revenue Receipt dt. 04.04.1993, Ex.B12 is Registered Will dt. 28.11.1994,

Ex.B13 is Registered Will dt.28.11.1994, Ex.B14 is Adangal Copy dt.

15.2.2005, Ex.B15 is Adangal Copy dt.15.2.2005, Ex.B16 is Death Certificate of Aadari Appalanarasamma dt. 12.9.2018.

09.Heard arguments of both sides, besides written arguments of plaintiffs.

10. Issue Nos.1 to 4:-

These issues are grouped up together for discussion for sake of brevity and convenience as issues 1 to 4 are inter-related.

11.Originally, the sole plaintiff Adari Satyanarayana filed this suit against defendants 1 and 2 for partition of plaint schedule properties into three equal shares and for allotment of one such share to the plaintiff, after converting the joint possession into separate possession. Subsequently, the sole plaintiff Adari Satyanaryana reported died, the plaintiffs 2 to 5 were added as L.Rs of deceased 1st plaintiff as per orders in I.A.35/2020 dt.17-06- 2021. The defendants 1 and 2 died, the 3rd defendant added as per orders in

I.A.41/2006 dt 17-04-2008.

12.It is the specific claim of the plaintiffs that one Bheesetty

Balaramaswamy @ Ballayya is the husband of the 1st defendant and they blessed with two daughters i.e., 2nd defendant and Adari Appalanarasamma who is the wife of 1st plaintiff. The said Appalanarasamma died during the

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 8 year 1987 intestate leaving behind her, the 1st plaintiff is the sole surviving heir to her properties. After death of the 1st defendant entrusted the properties to the 1st plaintiff to manage the affairs of the property as she had no male issues. Thus the 1st plaintiff used to manage the schedule properties since the day of his marriage with Appalanarasamma. The plaint schedule properties are the self acquired properties of late Bheesetty Balaramaswamy @ Ballayya and he died during the year 1973 intestate leaving behind him, his wife and two daughters i.e., defendants and the wife of the 1st plaintiff

Appalanarasamma and all are entitled to equal shares as per Hindu law of succession. The 1st plaintiff’s wife Appalanarasamma died during the year 1987 and after her death, the 1st plaintiff succeeded to her share and enjoying the schedule property jointly with the 1st defendant. The 1st defendant with a view to deprive the 1st plaintiff’s right filed a suit in

O.S.173/1997 on the file of Principal District Munsif Court, Anakapalle and the

1st plaintiff has been contesting the said matter.

13.The 1st defendant Bheesetti Mahalakshmamma filed written statement stating that after death of the Balaramaswamy, she has succeeded her husband’s properties, they are item Nos.1 to 9, since then she is in absolute possession and enjoyment of her properties with exclusive right of ownership. No properties are joint with the plaintiff and defendants. After death of the late Appalanarasamma since 1984 the plaintiff is not a member of defendants family, hence he has no right to claim anything in the schedule properties. The plaintiff has to return the gold, silver articles including cash of

Rs.50,000/- to the 1st defendant, plaintiff did not return the same, on the other hand, used to create litigation. In addition to the schedule items,

Bheesetti Mahalaxmamma, who purchased three more assets, they are 1)

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 9 Vacant place at Mangalavarapupeta with Rice Mill shed, 2) Ac.0-20 cents of vacant site in S.No.370/2 at Mangalavarapupeta and 3) another vacant site of

Ac.0-20 cents at Mangalavarapupeta in S.No.370/1. After the death of

Appalanarasamma, being the only legal heir Mahalakshmamma succeeded to these properties also. She is also in possession and enjoyment of the above referred properties after the death of Appalanarasamma. In order to grab these properties plaintiff filed false suit.

14.The 3rd defendant filed written statement contending that

Balaramaswamy is the husband of the 1st defendant and both of them had two daughters is correct. During the life time of late Balaramaswamy his both daughters were married and substantial amounts, gold, silver and other articles were given at the time of marriage. Late Appalanarasamma and plaintiff’s marriage took place in the year 1970. During the marriage the

Mahalakshamma gave Rs.50,000/- cash, 30 tulas gold, 500 tulas silver and other ornaments. In the year 1984 the Appalarasamma died without any issues. After death of Appalanarasamma, plaintiff married another woman by name Annapoornamma. Since then the plaintiff has no relation with both the defendants. The Plaintiffs have begotten three children through said

Annapoornamma namely Triveni, Arunalakshmi and one son by name Appala

Satya Prasad.

15.The 3rd defendant further contending that, the 1st defendant

Mahalakshmamma, during her life time in a sound state of mind executed a registered Will dt.28-11-1994 in favour of the 2nd defendant Adilakshmi, created only life estate of the properties to the 2nd defendant for the enjoying the same and absolute rights to the 3rd defendant, as the 3rd defendant is the adopted son of the 2nd defendant. Since 1994 the defendants Nos.2 and 3 are

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 10 in possession and enjoyment of the schedule property. By virtue of registered

Will dt.28-11-1994, the 3rd defendant is the absolute owner of the schedule property. Therefore, the suit is liable to dismissed.

16.A perusal of pleadings of the plaintiffs and defendants, it is an undisputed fact that, Bheesetty Balaramaswamy @ Ballayya is the husband of the 1st defendant and they have two daughters i.e., 2nd defendant and

Adari Appalanarasamma who is the wife of the 1st plaintiff. The 1st plaintiff’s wife Appalanarasamma died, during the year 1987 without any children.

17.According to the plaintiffs, the suit schedule properties are the self acquired properties of late Bheesetty Balaramaswamy @ Ballayya, he died during the year 1973 intestate, his wife and two daughters i.e., defendants 1, 2 and the wife of the 1st plaintiff Appalanarasamma and all are entitled to equal shares. As per the contention of the 1st defendant, after death of the Balaramaswamy, she has succeeded her husband’s property, they are item No.1 to 9 i.e., the suit schedule properties, since then she is in absolute possession and enjoyment of her properties with exclusive right of ownership and no properties are joint with the plaintiffs and defendants.

According to the contention of the 3rd defendant, Bheemarasetti Apparao, the 1st defendant has executed a Registered Will dt.28-11-1994 in favour of the 2nd defendant Adilakshmi creating only life estate to her and absolute rights to the 3rd defendant. Accordingly he is absolute owner of the plaint schedule properties.

18.The defendants are categorically denied the claim of the plaintiffs i.e., the suit schedule properties are joint family properties of defendants 1, 2 and wife of the 1st plaintiff and they are in joint possession and enjoyment of the suit schedule properties. Now the burden lies on the plaintiffs to

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 11 establish that the 1st plaintiff being husband of Appalanarasamma got 1/3rd share in the suit schedule properties along with the defendants 1 and 2 with joint possession, thereafter, the plaintiffs 2 to 5 are entitled the share of 1st plaintiff.

19.To substantiate claim of the plaintiffs, the 1st plaintiff Adari

Satyanarayana got examined as P.W.1, reiterated the plaint averments and exhibited Ex.A.1 to A.6 documents. The plaintiffs also examined one

Ganireddy Govinda as P.W.2 in support of the claim of the plaintiffs. Thus the plaintiffs relied on the evidence of P.Ws.1 and 2 coupled with Ex.A.1 to A.6 documents to prove the share of the 1st plaintiff in the suit schedule properties. Admittedly, the 2nd plaintiff is the 2nd wife of the 1st plaintiff, the plaintiffs 3 to 5 are their children.

20.Coming to the Exs.A.1 to A.6 documents, Ex.A.1 is the receipt dt.26-06-1982 issued by the Bheesetti Mahalaxmamma in favour of the Adari

Satyanarayana for receipt of Rs.25,000/-, Ex.A.2 is the receipt dt.10-04-1986 issued by the Bheesetti Mahalakshmamma in favour of Adari Satyanarayana for receipt of Rs.30,000/- towards receipt of produce. Ex.A.3 is the house tax receipt issued in the name of Beesetty Balaramaswamy for Door No.4/44.

Exs.A.4 to A.6 are the surveyor reports shown in the name of Bheesetty

Ramaswami, S/o Jagannadham. The plaintiffs exhibited Ex.A.1 to A.6 documents to show that the 1st plaintiff Adari Satyanarayana cultivated the suit schedule land and gave amounts to the 1st defendant.

21.In the cross-examination of P.W.1, he testifies that D.1 is his mother-in-law and D2 is the elder daughter of the 1st defendant, his wife

Appalanarasamma is the 2nd daughter of the D.1, his marriage with

Appalanarsamma took place in the year 12972 or 1973, his wife

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 12 Appalanarasamma died in the year 1987, one Bheemerasetty Adinarayana is the son-in-law of D.1, husband of D2, both the daughters of D1 have no surviving issues, D.1 is no more, D.2’s husband also no more. This portion of evidence is clinching clear that D.1 is the mother-in-law and D.2 is the elder daughter of D.1 and the wife of P.W.1 Appalanarasamma is the 2nd daughter of D.1 and both the daughters of D.1 have no surviving issues. D2’s husband also no more.

22.P.W.1 admitted in cross-examination that after death of his wife

Appalanarasamma, he married one Annapoorna, daughter of Surisetti

Gaddanna, two daughters by names Triveni and Arunakumari and one Son by name Appala satya Prasad are born to him through Annapoorna during their wedlock. Triveni is studying Intermediate 2 years and Arunakumari is studying in board school, his son is studying Intermediate. This portion of evidence is clinching clear that Appalanarasamma who is the 1st wife of P.W.1 died without any children, after her death, P.W.1 married the 2nd plaintiff and gave birth to plaintiffs 3 to 5.

23.P.W.2 supported the claim of the plaintiffs in his chief examination. In the cross-examination, he testifies that the plaintiffs used to take the produce of paddy, his half share to his house and the plaintiffs mother in law used to take her half share, with regard to the sugarcane crop the plaintiffs used to convert the same into Jaggery by crushing and sent it to market. His mother in law and the plaintiffs used to settle the accounts.

There is no documentary evidence, evidencing the settlement, the disputes are existing between the plaintiff and his mother-in-law since 10 years i.e., disputes started 10 years ago. The disputes arose when the plaintiff demanded for partition. This portion of evidence of P.W.2 shows that P.W.1

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dt.6-07-2023 13 used to cultivate the suit schedule land, take produce of his share and used to take half share of the 1st defendant. He did not depose about the share of the 2nd defendant. Further there are disputes between the P.W1 and 1st defendant, when the plaintiffs demanded for partition.

24.On the other hand to substantiate the contention of the defendants, the 3rd defendant got examined as DW.1, reiterated his contention taken in the written statement and exhibited Exs.B.1 to B.16 documents in his evidence. Ex.B.1 is the title deed passbook issued in the name of Bheesetty Mahalaxmamma dt.30-06-1995, W/o Balaramaswamy for land covered in Survey No.195/7 an extent of Ac.0-12 cents, 196/3 for an extent of Ac.0-16 cents, 196/1 for an extent of Ac.1-33 cents mentioned that “Anuvamsham”. Ex.B.2 is the Pattadar passbook issued in the name of

Bheesetty Mahalakshmamma, W/o Balaramaswamy for land in Survey

No.41/17 for an extent of Ac.0-10 cents, 41/24 for an extent of Ac.1-73 cents mentioned as owner. Ex.B.3 Pattadar passbook issued in the name of

Mahalakshamamma, W/o Balaramaswamy in respect of land in Survey

No.195/7 an extent of Ac.0-12 cents, 196/3 an extent of Ac.0-16 cents, 196/1 for an extent of Ac.1-33 cents mentioned as owner Anuvamshikam. Ex.B.4 is the title deed issued in the name of Bheemsetty Mahalaxmamma for land in

Survey No.41/17 an extent of Ac.0-10 cents, 41/24 for an extent of Ac.1-73 cents mentioned as Anuvamshikam. EX.B.1 and B.3 are pattadar passbook and title deed passbook for the some land. Ex.B.2 and B.4 are the pattadar passbook and title deed passbook for the same land. Ex.B.5 to B.11 are the land revenue receipts issued in the name of Bheesetty Mahalaxmamma in respect of suit schedule lands. Ex.B.12 is the registered Will executed by

Bheesetty Mahalaxmamma in favour of Bheemarasetti Adilakshmi created

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dt.6-07-2023 14 life estate and absolute rights to the 3rd defendant. Ex.B.13 is the Registered

Will dt. 28-11-1994 executed by Bheemarasetti Adilakshmi, W/o Adinarayana in favour of 3rd defendant. Ex.B.14 is the copy of Adangal contains the name of Bheesetty Mahalakshmamma, possessor of the suit schedule property.

Ex.B.15 is the copy of Adangal contains the name of Bheesetti Adilakshmi in respect of land covered in Survey No.506/8 an extent of Ac.1-38 cents.

Ex.B.16 is the death certificate of Appala Narasamma, date of death mentioned as 08-07-1984. The 3rd defendant examined one Bheemarasetty

Apparao, S/o Ramunaidu as DW2, examined one Bheemarasetty Chitti

Apparao as DW3 and also examined one Vulluri Ramarao as DW4 and Malla

Appalanaidu, S/o Appanna as DW5.

25.Thus, the 3rd defendant relied upon the evidence of DWs1 to 5 coupled with Ex.B.1 to B.16 documents to substantiate his contention taken in the written statement. DWs1 to 5 are supported the contention of the defendants. Exs.B.1 to B.14 documents establishes that the suit schedule land muted in the name of 1st defendant Bheesetty Mahalakshmamma as successor, after death of her husband Bheesetty Balaramaswamy @

Ballayya.

26.A perusal of pleadings and the evidence of the plaintiffs, and defendants, it reveals that originally the suit schedule properties are belongs to Bheesetty Balaramswamy @ Ballayya, he died intestate. When the original owner died intestate, the property devolved upon his successors. Evidently, the 1st defendant is his wife, the 2nd defendant is his elder daughter and the wife of the 1st plaintiff is his 2nd daughter. They got equal shares in the property of Bheesetty Balaramswamy @ Ballayya being his legal heirs, as he died intestate. It is also established that the suit schedule lands muted in the

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 15 name of 1st defendant Bheesetty Mahalakshmi, after death of her husband

Bheesetty Balaramaswamy as elder member of the family. When the original owner dies, naturally, the lands are muted in the name of elder member of the family, for the purpose of collecting land Revenue etc., purpose. Mere mutating land in Revenue Records does not create any right to the person concern.

27.The 1st defendant has executed Ex.B.12 Will deed in favour of 2nd defendant in respect of entire suit schedule property as if she got absolute rights. Evidently, the suit schedule properties are not self-acquired properties of 1st defendant. She got one share along with other co-sharers in the suit schedule property and she can execute any document in respect of her share only. The 2nd defendant executed Ex.B.13 Will deed in favour of 3rd defendant in respect of property covered under Ex.B.12. Evidently the suit schedule properties are not partitioned among the legal heirs of Bheesetty

Balaramswamy @ Ballayya.

28.At this juncture, the 3rd defendant counsel argued that, any property inherited by a female Hindu from her father or mother, a female hindu died issue less, property devovles oupon heirs of her father and not to husband or her in laws family.

29.In this regard, the defendants counsel relied upon the following decisions.

In between Anandilal Jhariya and another vs. Ramlal Jhariya and another reported in AIR 2010 Madhya Pradesh 21. Wherein it is held that

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dt.6-07-2023 16 “Section 15(2) of Hindu Succession Act, property inherited by daughter from her father, daughter died issueless, property devolves upon heirs of her father and not to her husband or her in-laws-family.

In between Bhimadas and Others vs. P.Kanthamma (died) and others reported in AIR 1974 Andhra Pradesh 266. Wherein it is held that “Section 15(1), 15(2) of Hindu Succession Act, where the Hindu female who derived property from her parents died intestate, the property devolved upon her children, in absence of children upon her father and in default of father, upon father’s heirs. Hence, sale deed executed by the husband of the property of female who died intestate is invalid.

In between Sangappa vs. M.Msiddamma and Others reported in AIR 2011 Karnataka 125. Wherein it is held that “Section 15(2) of Hindu Succession Act, Female Hindu dying intestate during pendency of suit for partition, not leaving behind any son or daughter, with her death itself her right in respect of joint family properties comes to an end.

Same cannot be inherited by her sole surviving husband. Trial court without noticing provisions of Section 14 had erred in granting 1/3rd share in favour of plaintiff. Not proper.

In between Bhagat Ram (dead) vs. Teja Singh reported in AIR 1999 Supreme Court 1944. Wherein it is held that “Section 15(2) of Hindu Succession Act, Female Hindu, inheriting property from her mother, on her death, property would devolve on her sister as per sub-sec.2 of S.15.

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dt.6-07-2023 17

30.Now it is appropriate to lead section 15 of Hindu Succession Act 1956, which reads as follows.

 “ General rules of succession in the case of female Hindus. — (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(a) firstly, upon the sons and daughters (including the children of any pre­deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub­section (1),—

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre­ deceased son or daughter) not upon the other heirs referred to in sub­section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father­in­law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre­deceased son or daughter) not upon the other heirs referred to in sub­section (1) in the order specified therein, but upon the heirs of the husband.

31.The aforesaid provision and ratio decided in the relied decisions, where the Hindu female who derived property from her parents died intestate, the property devolved upon her children, in absence of children upon her father and in default of father, upon fathers heirs. It means, property of issue less female Hindu dying intestate goes back to the source.

32.Admittedly, Adari Appalanaraswamma who is the wife of deceased 1st plaintiff died issue less. The plaintiff who is the husband of the

Appalanarasamma filed suit claiming share of his wife Appalanarasamma.

Admittedly, the suit schedule property is the self acquired property of

Bheesetty Balaramaswamy @ Balayya who is the father of

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 18 Appalanarasamma. Evidently, Appalanarasamma died issue less, property derived from her father, devolves upon heirs of her father and not to her husband or her in-laws.

33.It is pertinent to note that after death of Appalanarasamma, the deceased 1st plaintiff married 2nd plaintiff Annapoorna and gave birth to plaintiffs 3 to 5 and separated from the family of 1st defendant.

34.Even according to the plaintiffs, Bheesetty Appalaswamy @

Balayya died, during the year 1973 intestate, Adari Appalanarasamma died during the year 1987. Whereas the deceased 1st plaintiff filed this suit in the year 1997 claiming share of the Adari Appalanarasamma, 10 years after death of Appalanarasamma.

35.Article 110 of Limitation Act provides, by a person excluded from a joint family property to enforce a right to share therein, period of limitation 12 years, when the exclusion becomes known to the plaintiff. Therefore, on that count the suit is filed within the period of limitation.

36.There is no evidence to show that during the marriage of Wife of plaintiff, the 1st defendant gave Rs.50,000/- cash, 30 tulas of gold, 500 tulas silver and other ornaments to her as contended by 3rd defendant. However, it is not a germane consideration to resolve the present dispute. It is not the contention of the defendants that the above cash and ornaments given to the 1st plaintiff’s wife towards her share. Therefore. The 1st defendant is not the absolute owner of plaint schedule properties and she succeeded the same from her husband along with her two daughters. i.e., 2nd defendant and the wife of deceased 1st plaintiff i.e., Adari Appalanarasamma. As Adari

Appalanarasamma died issue less, her share devolves upon heirs of her father.

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 19 37.Admittedly, the father and mother of Adari Appalanarasamma are no more. Any of the legal heir of the father of the Adari Appalanarasamma neither added as parties in the suit nor claiming any share. Therefore, share of Appalanarasamma goes to her husband i.e., the deceased 1st plaintiff and thereafter his legal heirs i.e., the plaintiffs 2 to 5. Therefore, the plaintiffs are entitled to 1/3rd share in the suit schedule properties.

Accordingly, these issues are answered in favour of the plaintiffs and against the defendants.

38. Additional Issues Nos.1 to 3:

These issues are grouped up together for discussion for sake of brevity and convenience as issues 1 to 3 are inter-related.

39. The 3rd defendant claiming the right, title and possession over the suit schedule property under the guise of Will deeds said to have been executed by the defendants 1 and 2 in his favour. Now the burden lies on the 3rd defendant to prove the Will deeds contents and genuinity of the Will deeds. In this regard, he relied on the evidence of DWs1 to 5 coupled with

Ex.B.12 and B.13 Will deeds. DW1 Beemarasetty Apparao supported the contention of Will deeds in his chief examination. The attestors of Ex.B.12 Will were examined as DW2 and DW5. The 2nd attestor of Ex.B.13 Will was examined as DW3. The scribe of Ex.B.13 Will was examined as DW.4. DW2 to

DW5 supported the contents of Will and execution of Will in their chief examination.

40.The plaintiffs counsel argued that the 3rd defendant who examined as DW1 is not a successor or legal heirs of defendants 1 and 2 and late Bheesetti Balaramaswamy @ Balayya and the wife of the plaintiff namely

Adari Appalanrasamma is a stranger in the family of Behesetti

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 20 balaramaswamy and the claim of the 3rd defendant in the suit is that he became owner of the property by virtue of Will deeds dated 28-11-1994 i.e.,

ExB.12 alleged to have been executed by the 1st defendants Bheesetti

Mahalakshi Will deed dt.28-11.1994 i..,e Ex.B.13 said to have been executed by the 2nd defendant ie. Bheemarasety adilakshmi. Hence, the 3rd defendant has to prove the right to execute the Will, competency to executed Will, due execution of the Will and prove that the testator or testatrix for having the sound and disposing state of mind at the time of execution of Wills.

In this regard, he relied on following decisions.

In between Kavita Kanwar vs. MRS.Pamela Mehta and Ors.

reported in [2020] 0 AIR (SC) 2614. Wherein it is held that “ In opposition is taken or not, Propounder of Will is required to satisfy conscience of court with removal of all suspicious circumstances. By very nature and consequence of this proceeding, filing or non filing of written statement or objections by any party pales into in- significance and is of no effect. Will in question is surrounded by various suspicious circumstances which are material in nature and which have gone unexplained.

Appellant, while seeking probate, has not only failed to remove and clear suspicious circumstances but has even contributed her own part in lending more weight to each and every suspicious circumstance.

In between Jagdish Chand Sharma vs. Narain Singh Saini (dead) Through his L.Rs & Ors. reported in [2015] 6 AD (SC) 617. Wherein it is held that

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 21 Proving a Will. Due execution, requirements, wil signed by testator in sound disposing state of mind. He understood the nature and effect of the disposition. Propounder has to demonstrate that the Will was signed by the testator and that he was at the relevant time in a sound disposing state of mind and that he understood the nature and effect of the disposition. He had put his signature on his own free will in presence of two witnesses who had attested it in presence and in the presence of each other. Suspicious circumstance must be removed.

In between Harbant Kaur and Others vs. Ranjeet Singh @

Ranjit Singh and Others reported in 2021 0 Supreme (Del) 503. Wherein it is held that

Section 6 and 8 of Hindu Succession Act, 1956: Ancestral property and Self Acquired property, Shares, maintainability of suit, Seek early hearing of the suit and the application for interim reliefs, father of defendant

No.1 and grandfather of the plaintiffs herein passed away sometime in the year 1982. on his death, properties owned by him including the suit properties, devolved upon his children, which included inter-alia, defendant

No.1, inheritance of late Mr. Ujagar Singh’s immovable properties, by his successors in interest i.e., defendant

No.1, though undoubtedly the inheritance of an “ancestral

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 22 “property, is, in his hand, is seen as a self-acquired property.

In between Omprakash & Ors. vs. Radhacharan & Ors reported in 2009 0 Supreme (SC) 932. Wherein it is held that “ Section 15 (1)(2), (a) Hindu Succession Act, 1956. The law is silent with regard to self acquired property of a woman, Section 15 (1) refers only to a property which has vested in the deceased absolutely or which is her own.

The self acquired property of a female would be her absolute property and not the property which she had inherited from her parents. The law is silent with regard to self acquired property of a woman. Sub section (1) of

Section 15, however, apart from the executions specified in Sub section (2) thereof does not make any distinction between a self acquired property and the property which she had inherited. It refers to a property which has vested in the deceased absolutely or which is her own. The self acquired property of a female would be her absolute property and not the property which she had inherited from her parents. In that view of the matter, we are of the opinion that sub section (1) of section 15 of the Act would apply and not the sub section (2) thereof.

In between Vidya Devi alias Vidya Vati (dead by L.Rs) vs.

Prem Prakash and Others. reported in 1995 0 Supreme (SC) 673. Wherein it is held that

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 23 “ Normally, where the property is joint, co sharers are the representatives of each another. The co sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the co sharers.. As such, it would be difficult to raise the plea of adverse possession by one Co sharer against the other.

But if the co share or the joint owner had been professing hostile title as against other co sharers openly and to the knowledge of other joint owners, he can,provided the hostile title or possession has continued uninterruptedly for the whole period prescribed for recovery of possession, legitimately acquire title by adverse possession and can plead such title in defence to claim for partition”.

41.As per the ratio decided in the afore said decisions, Propounder of

Will is required to satisfy conscience of court with removal of all suspicious circumstances. Proof of Will provides Under Sections 68 and 69 of Indian

Evidence Act. Section 68 of Indian Evidence Act provides: - “If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 24 accordance with the provisions of the Indian Registration

Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied”.

Section 69 of Indian Evidence Act provides:- “If no such attesting witness can be found, or if the document purports to have been executed in the United

Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person”.

42.Admittedly, the suit schedule property is the self acquired property of Bheesetty Balaramaswamy @ Balayya, but not self acquired property of defendants 1 and 2. The same was admitted by the DW1 in his evidence. Where the properties original belongs to Bheesetty

Balaramaswamy @ Balayya, the defendants 1 and 2 who is his wife and daughter and the wife of deceased 1st plaintiff, Adari Appalanarasamma who is the 2nd daughter of deceased Bheesetty Balaramaswamy got equal shares as Co-sharers. The defendants 1 and 2 have no right to execute the Will deeds for entire property without concern and knowledge of other co-sharers.

The evidence of DW1 and the recitals of Ex.B.12 establishes that the property is the self-acquired property of Bheesetty Balaramaswamy, the 1st defendant succeeded the schedule property, after death of Bheesetty Balaramaswamy.

Thus documentary evidence and the admission of DW1 clinching clearly that

Bheesetty Balaramaswamy @ Ballayya was absolute owner of the property covered under O.S.108/1997 and O.S.105/2003. Admittedly, the said

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 25 Bheesetty Balaramaswamy @ Balayya died intestate, during the year 1972 leaving behind him, his wife, 1st defendant and two daughters i.e., 2nd defendant and Adari Appalanarasamma, W/o Adari Satyanarayana, consequent on his death all the property was devolved upon his wife and two daughters. The same was not specifically denied by the DW1 in his evidence. Further admitted same. Therefore, the 1st defendant alone has no right to execute Ex.B.12 Will deed in favour of the 3rd defendant for the entire the suit schedule property which original belongs to Bheesetty

Balaramaswamy @ Ballayya. The defendants 1 and 2 have got right to execute the Will deed in favour of 3rd defendant in respect of their share of property, but not entire suit schedule property. Therefore, the 3rd defendant does not acquire any right and title through Exs.B.12 and B.13 Will deeds on entire suit schedule property. Therefore, the plaintiffs, 1st defendant and 2nd defendant got equal shares in the suit schedule property and they are entitled for 1/3rd share each in the suit schedule property.

Accordingly, these issues are answered.

43. Issue NO.5:

In the result, the suit is Preliminary decreed in favour of the plaintiffs, for partition of the plaint schedule properties into three equal shares and alloted one such share to the plaintiffs with mates and bounds, after converting the joint possession into separate possession, with costs.

Dictated to Stenographer, transcribed by him, corrected and pronounced by me in the

open court on this the 6th day of July, 2023.

Principal Senior Civil Judge

Anakapalle.

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 26

APPENDIX OF EVIDENCE

No. of Witness Examined for

Plaintiffs :

PW1: Adari Satyanarayana PW2: Ganireddy Govinda

Defendants :

DW1: Beemarasetty Apparao S/o. Appalanaidu DW2: Beemarasetty Apparao S/o. Ramunaidu DW3: Beemarasetty Chtti Apparao DW4: Vulluri Rama Rao DW5: Malla Appalanaidu

No. of Documents Marked as Exhibits on behalf of Plaintiffs: Ex.A1 Receipt dt.26.6.1982

Ex.A2 Receipt dt. 10.4.1986

Ex.A3 Tax Receipt

Ex.A4 Surveyor Report

Ex.A5 Surveyor Report

Ex.A6 Surveyor Report

No. of Documents Marked as Exhibits on behalf of Defendants: Ex.B1 Ryotwari Passbook

Ex.B2 Ryotwari Passbook

Ex.B3 Ryotwari Passbook

Ex.B4 Ryotwari Passbook

Ex.B5 Land Revenue Receipt dt. 12.3.1986

Ex.B6 Land Revenue Receipt dt. 24.03.1990

Ex.B7 Land Revenue Receipt dt. 15.03.1993

Ex.B8 Land Revenue Receipt dt. 08.01.1994

Ex.B9 Land Revenue Receipt dt. 27.05.1996

Ex.B10 Land Revenue Receipt dt. 20.04.1992

O.S. 108/1997 ASCJC (FTC):: AKP

dt.6-07-2023 27 Ex.B11 Land Revenue Receipt dt. 04.04.1993

Ex.B12 Registered Will dt. 28.11.1994

Ex.B13 Registered Will dt. 28.11.1994

Ex.B14 Adangal Copy dt. 15.2.2005

Ex.B15 Adangal Copy dt.15.2.2005

Ex.B16 Death Certificate of A.Appalanarasamma dt. 12.9.2018.

PSCJ/AKP

PSCJC :: AKP

O.S. 200/2008

Date of presentation : 04.03.2015/18.03.2015

Date of filing : 19.03.2015

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AT ANAKAPALLE

Present: Sri G.GANGA RAJU

Principal Senior Civil Judge,

Anakapalli

Wednesday, this the 12 th day of April, 2023

ORIGINAL SUIT NO. 57/2015

Between:

Seela Venkata Satyavathi @ Satyaveni, W/o. Raja Rao, Hindu, Age:

about 45 years, Hosuewife, residing at D.No.5-45, Raiwada Village,

Devarapalli Mandal, Visakhapatnam District.

..Plaintiff

And:

1.Tamatapu Appalanarasamma, W/o. Late Venkanna, Hindu, Age: about 60 years, Housewife, residng of Door No.1-2, Charakam Village,

Kasimkota Mandal, Visakhapatnam District.

2.Tamatapu Srinivasa Rao, S/o. Late Venkanna, Hindu,Age: about 40 years, residng of Door No.1-2, Charakam Village, Kasimkota Mandal,

Visakhapatnam District.

3. Gorli Ramunaidu, S/o. Pothuraju, Hindu, Age: about 45 years, resident of Door NO.3-13, Settipalem village, Makavarapalem Mandal,

Visakhaptnam District.

…. Defendants

This is a suit filed by the plaintiff against the defendants 1 to 3 for partition of the plaint schedule properties into three equal shares and for allotment of one such separate share to the plaintiff and the remaining two shares to defendants 1 and 2, for separate possession of the share allotted to the plaintiff, and for a direction for subsequent profits till delivery of possession of the schedule properties to be determined in a separate equity under Order 20 Rule 12 of CPC and for costs of the suit.

PSCJC :: AKP

O.S. 200/2008

Value of the suit for the purpose of court fee and jurisdiction is

Rs.5,27,500/- (Rs.1,02,500/- + Rs.4,25,000/- ) and a court fee of RS.7,726/- is payable but a fixed court fee of Rs.200/- is paid under sec.34(2) of A.P. Court

Fee and Suit Valuation Act.

This suit has come before me on 01.3.2023 for final hearing in the presence of Sri R.D. Prasad, Advocate counsel for Plaintiff and of Sri

M.Srinivasa Rao and Sri M.V.R. Bhupathi Rao, Advocate Counsel for the

Defendants 1 & 2 and defendant NO.3 having remained exparte and upon perusal of material available on record, upon hearing and having stood over for consideration till this day, this court doth order and :-

D E C R E E

01.that the suit be and the same is preliminarily decreed for partition of plaint schedule properties Items No.1 and 2 into three equal shares and alloted one such share to the plaintiff by metes and bounds;

02.that both parties shall bear their own costs.

( copy of plaint Schedules is appended herewith )

Given under my hand and seal of this court, dated this the 12th day of

April, 2023.

PRL. SENIOR CIVIL JUDGE,

VISAKHAPATNAM

MEMORANDUM OF COSTS

FOR PLAINTIFF : FOR DEFENDANTS :

No costs memo is filed on either side.

PSCJ :: AKP

1

IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE (FTC) AT ANAKAPALLE

Present: Sri G.GANGARAJU,

Principal Senior Civil Judge,

FAC Additional Senior Civil Judge (FTC) Anakapalli

Friday this the 7 th Day of July, 2023

L.A.O.P.101/1993

Between

1.Pilla Satyanarayana Murthy (died)

2. Pethakamsetty Chayadevi, W/o. Appala Naidu, Hindu, Age: 50 years, residing at Vadarapalli Munagapaka Mandal, Visakhapatnam District

3.Adari Venkata Lakshmi Kantham, W/o. Apparao, Hindu, Age: 42 years, residing at Vadarapalli, Munagapaka Mandal, Visakhapatnam District.

4. Pilla Surya Janardhana Rao S/o. Late Padamatayya Naidu, Hind, Age: 75 years, residing at Satakampattu Veedhi, Gavarapalem, Anakapalle

5.Pilla Padamatayyanaidu ( died)

6.Pilla Gangayyamma, W/o. Late Padamatayya Naidu, Hindu, Age: 57 years, residing at Thummapala Village, Anakapalle Taluk, Visakhapatnam District. (died)

7.Pilla Akhilesu Paradesinaidu, W/o. Late Padamatayya Naidu, Hindu, Age: 22 years, residing at Thummapala Village, Anakapalle Taluk, Visakhapatnam District.

8.Maddala Laxmi ( since married maiden name is Pilla Laxmi) W/o. Appala Swamy (Daughter of Padamatayya Naidu), Hindu, Age: 22 years, R/o. residing at Thummapala Village, Anakapalle Taluk, Visakhapatnam District.

9. Pilla Venkata Laxmi, D/o. Late Padamatayya Naidu, Hindu, Age: about 12 years, residing at Thummapala Village, Anakapalle Taluk, Visakhapatnam District.

10.Pilla Parvathi, W/o. Pilla Maheswara Rao, Hindu, Age: about 30 years, residing at Income Tax Office Road, Gandhinagar, Anakapalle

11.Pilla Rajkumari, D/o. Late Pilla Maheswara Rao, Hindu, Age: about 12 years, residing at Income Tax Office Road, Gandhinagar, Anakapalle

12.Pilla Swarupa Devi, D/o. Late Pilla Maheswara Rao, Hindu, Age about 9 years, residing at Income Tax Office Road, Gandhinagar, Anakapalle (Claimants No.6 to 12 are impleaded as legal representatives of claimant No.5 as per order in IA 133/2001 dt. 10.11.2003 )

ASCJC :: AKP LAOP 101/1993 2

13.Pilla Kanthamma, W/o. Late Padamatayya Naidu, Hindu, Age: 57 years, residing at Vadarapalli, Munagapaka Mandal, Visakhapatnam District. (died)

14.Pilla Balaramaswami Naidu, S/o. Late Paradesinaidu, Hindu Age: 57 years, residing at Vadarapalli, Munagapaka Mandal, Visakhapatnam District. (died)

15.Pilla Venkata Ramanamma, W/o. Late Pilla Satyanarayana Murthy, Housewife, Age: 67 years, Hindu, residing at D.No.16-4-64, 2nd Lane, Kota Veedhi, Nookambica Nagar, Gavarapalem.

16.Pilla Usharani, W/o. Pilla Chinna Paradesidnaidu, Hindu, Age: 28 years, Vadarapalli, Munagapaka Mandal, Visakhapatnam District.

17.Pilla Ravi Chaitanya Kumar, S/o. Late Pilla Chinna Paradesinaidu, Hindu, Age: 28 years, R/o. Vadarapalli, Munagapaka Mandal, Visakhapatnam District.

18.Kum Pilla Sravani, d/o. Pilla Chinna Paradesi Naidu, Age: 26 years, Hindu, R/o. Vadarapalli, Munagapaka Mandal, Visakhapatnam District.

19.Pilla Venkata Appa Rao, S/o. Late Satyanarayana Murthy, Hindu, Age: 52 years, residing at D.No.16-6-15, Nidanamdoddi Gavarapalem, Anakapalle.

20.Konathala Lakshmi , D/o. Late Pilla Suryanarayana Murthy and Wife of K.V.V. Prasad, Age: 48 years, Housewife, residing of House located in Women’s college road, Gavarapalem, Anakapalle

21.Pilla Srinivas, S/o. Late Satyanarayana Murthy, Hindu, Age: 45 years, residing at D.No.16-4-61/C, Kota Veedhi, Gavarapalem, Anakapalle. (Claimants No.15 to21 are impleaded as legal representatives of claimant No.1 ) …… Claimants And:

Special Officer, Steel Plant Land Acquisition ( Referring officer) VUDA Complex, Siripuram Junction, Visakhapatnam … Respondents

This petition has come before me for final hearing i.e., 09.05.2023 in the presence of Sri P.V.S.J. Mohan Rao, Advocate for Claimant NO.4 and of M/s. Lanka Venkateswarlu & Co., Advocate counsel for Claimants NO.1, 6 to 9 and of Sri G. Paradesi, Assistant Government Pleader for Referring officer/ Government, and upon perusing the material on record upon hearing the arguments and the same having stood over till this day for consideration this court delivers the following:-

ASCJC :: AKP LAOP 101/1993 3

ORDER

01.The Special Tahsildar, Steel Plant Land Acquisition (Referring

Officer), VUDA Complex, Siripuram Junction Visakhapatnam referred the matter to this Court under Sections 30 and 31 of Land Acquisition Act, as there is a rival claim and the title has to be decided.

02.The Referring Officer has submitted that the land in Item No.65 covered by Award No.12/1980 dt. 22.12.1980 acquired for steel plant.

The entire amount was deposited in Principal District Judge Court,

Visakhapatnam for the items. Item No.65 of the Award is in S.No.163, 165 and 167 containing extent of Ac.6-00, Ac.6.60cents, and Ac.7.95 cents of dry land in Pedamadaka village respectively. That the market value of the land acquired was decided at Rs.1,250/- per acre, market value of an extent of Ac.20.55cents Rs.25,812/- ( 7500 + 8375 + 9937), trees value Rs.6,121/- ( 3087/- + 2651/- + 383) /- structures value –nil-, solatium at 15% Rs. (1588-05 +1649-40 + 1544-07) and total compensation Rs.36,689-02ps.

Reasons for Reference:-

03. The above land stands registered in the settlement Fair Adangal in the name of Sri Chinna Pilla Paradesi Naidu. The present owners of the land are 1. Smt Karri Satyanarayanamma, 2. Sri Pilla Paramatayya

Naidu and 3. Sri Pilla Varaha Ramakrishna Nageswara Rao @ Sayjee S./o.

Late china Suryanarayana. Claimant No.1 has acquired the land by purchase through the sale deed and rest by succession. Claimant No.2 has three sons. 1. Pilla Surya Janardhana Rao, 2. Pilla Maheswara Rao and 3. Pilla Akhileswara Paradesi Naidu. Claimant No.3 is unmarried.

The claimants after receipt of notices have stated that the extents

ASCJC :: AKP LAOP 101/1993 4 noted therein are correct, and they have full ownership rights over the lands and that they have not alienated the land to anybody, they are in full occupation and the compensation may be paid to them in three equal shares. Sri Pilla Satyanarayana Murthy S/o. Late China Paradesi

Naidu during the award enquiry claim 1/3rd ownership in the 1/3 share of claimant No.2 i.e., Pilla Padamatayya Naidu. Smt Pathakamsetti

Chayadevi, W/o. Appalanaidu. Vadrapalli, Anakapalle Taluk and Smt

Adari Venkatalaxmi Kantham, W/o. Apparao of Dosuru, Anakaplali Taluk in their petition dt. 12.11.1980 stated that they and two other daughters of Late Pilla China Paradesi Naidu S/o. Naramatayya Naidu are entitled to 1/10th share in the lands claimed by claimant No.2 by virtue of a registered will dt. 15-12-69. The will was not produced at the time of enquiry. The major son (Surya Janardhana Rao) by the first wife of Claimant No.2 also claimed compensation payable on the lands. In view of the dispute among several claimants in the share of Sri Pilla

Paramatayya Naidu. During the Award enquiry they claimed compensation rate of Rs.20,000/- per acre of dry land but failed to produce any documentary evidence in support of their claim. Hence this petition.

04.Originally the 1st claimant – Pilla Satyanarayana Murthy was set exparte and order in IA 140/1997 dt.9.4.1998 the exparte order was set aside and claim statement of C1 was received. C1 contended that the land belonged to China Paradesi Naidu and the 1st claimant is entitled for 1/3rd share in the land and the said Paradesi Naidu expired on 24.12.1971, hence sought for his share in the award.

ASCJC :: AKP LAOP 101/1993 5 05. The brief averments of Claim Statement filed on behalf of 4th claimant- Pilla Suryajanardhana Rao are as follows:-

The property covered under Award devolved upon the father of this claimant I.e., Pilla Paramatayya Naidu in a family partition along with his two brothers by name Balaramaswamy and Satyanarayana and the father of the claimant died in the year 1981 leaving behind him as sole legal heir to him. Thus, this claimant is the absolute owner of the properties covered under the above said Award. Except this claimant and his father no one have any right, title or possession whatsoever over the properties mentioned in the Award i.e., S.No.163 of an extent of

Ac.2-00 cents, S.No.165 of an extent of Ac.2-22 cents and S.No.167 of an extent of Ac.2-65 cents of Pedamadaka village. The other claimants have nothing to do with the Award mentioned properties and they never exercised any right over the property. The claim of the other claimants are frivolous and vexatious under this award. As the compensation awarded by the Land Acquisition Officer is too low for the acquired land he reserves his right to file petition for enhancement of compensation .

06. The brief averments of Claim Statement filed on behalf of 7th to th 12 claimants- Pilla Akilesu Paradesi Naidu, Maddala Lakshmi, Pilla

Venkata Lakshmi, Pilla Parvathi, Pilla Rajakumari, Pilla Swaroopa Devi are as follows:-

The land acquired is the joint family land acquired by Pilla China

Paradesi Naidu, father of C1, C5, and C14. In view of a registered will executed by late Pilla Chinna Paradesi Naidu, during his life time in a sound and disposing state of mind on 24.12.1971 he bequeathed his property to his 3 sons to take in three equal shares. Thus three sons of Chinna Paradesi Naidu i.e., Padamatayya Naidu, Balaraswamy Naidu

ASCJC :: AKP LAOP 101/1993 6 and Pilla Satyanarayana Murthy each entitled to 1/3rd share. Pilla

Padamatayya Naidu is entitled to 1/3rd share and his 1/3rd share is devolved on his two wives Pilla Gangayamma(C6) and Pilla Kanthamma (C13) and his sons Pilla Surya Janardhana Rao(C4), Raj Kumar

Maheswara Rao, Akilesu Paradesi Naidu (C7), Maddala Lakshmi (C8),

Pilla Venkata Lakshmi (C9). Raj Kumar died intestate unmarried leaving behind him and his mother Gangayyamma (C6). Maheswara Rao died intestate leaving behind him his mother Gangayyamma (C6), his wife

Parvathi (C10), Daughter Raja Kumari (C11) Swaroopa Devi (C12).

During his life time Maheswara Rao along with his brother Akhilesu

Paradesi Naidu, he filed a suit for general partition in OS 110 of 1983 on the file of II Additional Subordinate Judge court, Visakhapatnam which is administratively transfered to the Gajuwaka Senior Civil Judge’s Court and renumbered as OS 23/1999. The said suit was contested from 1983 and nearly after 17 long years of contest, preliminary decree for partition was passed on 4.4.1980. As per the terms of the decree, the share of

Pilla Padamatayya Naidu has to be shared to his legal successors i.e., C1,

C6, C8, C9. The property in question in this Land Acquisition OP is in

S.No.163, 165 and 167 of Pedamadaka village and they are Items No.18, 20, and 19 respectively in the decree schedule in Old OS No. 110 of 1983 is equal to the new OS 23/1999 on the file of Senior Civil Judge court, Gajuwaka. The 6th Claimant -Pilla Gangayamma breathed her last on the intervening of 25/26.3.2003 an d her legal representatives are C7 and C8. The compensation has to be shared in 3 equal shares between C5, C1 and C14. None of the claimants are exclusively entitled for the compensation, all other contentions of the other claimants are wrong.

ASCJC :: AKP LAOP 101/1993 7 07.The brief averments of Claim Statement filed on behalf of 13th claimant- Pilla Kanthamma are as follows:-

The property covered under the Award devolved upon the husband of this claimant i.e., Pilla Padamatayya Naidu in a family partition along with his two brothers Balaraswamy Naidu and Pilla Satyanarayana

Murthy. This claimant’s husband died in the year 1981. Pilla Surya

Janardhana Rao – 4th claimant is the only son of this claimant became entitled to the property of late Padamatayya naidu. This claimant gave her share in the land acquired to the 4th claimant as he was looking after the maintenance and welfare of this claimant. During Award enquiry statement was also given to the LAO requesting him to pay the compensation to her son 4th claimant regarding her share also. Other claimants have nothing to do with the land and the compensation.

The claim of the other claimants are frivolous and vexatious and they are not entitled to any compensation covered under the Award.

08. In this Claim petition the claimants i.e., C1, C4, C6 to C13 are contesting by filing claim statements. The other claimants i.e., C2, C3,

C15 to 21 have remained exparte. Claimants 1, 5, 6, 14 have expired.

09.(a) During the course of enquiry on behalf of claimant No.1 P.W.1-

Sri Pilla Satyanarayana was examined and Ex.A1 to A4 and C1 to C4 are got exhibited in his evidence. Ex.A1 and A2 are photo stat copies of

Judgment and Decree in OS 23/1999 dt. 4.4.2000 of Sr. Civil Judge’s

Court, Gajuwaka, Ex.A3 is photo stat copy of Common Order of the

Land Reforms Tribunal dt. 15.6.1977. Ex.A4 is photo stat Copy of Land

Ceiling declaration filed by Padamatayya Naidu (C5). Ex.C1 to C3 are

Award enquiry statements of Pilla Satyanarayana, Pilla Suryanarayana,

ASCJC :: AKP LAOP 101/1993 8

Padamatayya Naidu, Varaha Rama Krishna Nageswar Rao and Karri

Satyanarayana. Ex.C4 is Award No.12/1980 dt. 22.12.1980.

(b)The 4th claimant – Pilla Surya Janardhana Rao was examined as

P.W.2 and exhibited Ex.A5. Ex.A5 is Certified copy of Yadasthu dt.21.10.1978. One third party Smt Pilla Babji Lakshmi was examined as

P.W.3 in support of the contention of P.W.2 and Ex.A5 is certified copy of the decree in LAOP 93/1999 is exhibited in her evidence.

Two documents are marked as Ex.A5 I.e, one in the evidence of

P.W.2 and another in the evidence of P.W.3, hence they are referred as

Ex.A5(a) and Ex.A5(b).

(c) The 9th claimant- Smt Pilla Venkata Lakshmi was examined as

P.W.4 and Ex.A6 is exhibited in the evidence of P.W.4 and Ex.A6 is

Photostat copy of order dt. 5.2.1977.

(d) Sri T.N.V. Ravi Kumar, Senior Special Revenue Inspector/ Senior

Assistant in the office of the Special Deputy Collector, LA, Steel Plant,

Visakhapatnam is examined as R.W.1 on behalf of Referring

Officer/Government and through him Ex.B1 Award Copy of Award

No.12/1980 dt. 22.12.1980 passed by the Land Acquisition Officer, O/o.

Special Deputy Collector (LA) Steel Plant Unit-IV, Visakhapatnam is exhibited.

10. Heard arguments of both sides besides the written arguments filed by claimants 4, 6 to 9.

11.Now the point for consideration is:-

Whether the Item No.65 land an extent of 1/3rd out of Ac.20.55 cents covered by this Land Acquisition is property of claimant No. 4 or

Claimants 7 to 12 and they got right and title over the land under acquisition covered by this LAOP?

ASCJC :: AKP LAOP 101/1993 9

12. POINT:-

The Special Officer, Steel Plant Land Acquisition, Visakhapatnam referred to this Court under Sections 30 and 31(2) of Land Acquisition

Act stating that the title has to be decided as there are rival claimants claiming right and title over the claim schedule property.

12.Originally this claim petition was filed against 7 claimants, and as claimant NO.5- Pilla Padamatayya Naidu died and claimants No.6 to 12 have transposed themselves as legal representatives of claimant no.5 apart from C4 and C6- Pilla Kanthamma, and got impleaded into this claim petition as per order IA 133/2001 dt. 10.11.2003 . Claimant No.14-

Pilla Balaramaswamy Naidu also died but his legal representatives are not impleaded as parties in this petition. Claimant No.1 – Pilla

Satyanarayana Murthy expired and his legal representatives are added as Claimants No.15 to 21. Claimant No.6- Pilla Gangayyamma also expired and as her legal heirs are already on record as C7 to C12 there is no need to add any legal representatives. Like wise, C13 – Pilla

Kanthamma also died and as stated in her claim statement her only son Pilla Surya Janardhana Rao (C4) is her sole legal heir after the death of her husband. Hence as legal heir of C13 is already on record, there no need to add any person as legal representative.

14.The admitted facts in this claim statement are :

(I) Pilla Paradesi Naidu is the original owner of the entire property.

(ii) Pilla Paradesi Naidu has three sons namely : Pilla Padamatayya

Naidu(C5), Pilla Balaraswamy Naidu(C14) and Pilla Satyanarayana

Murthy(C1) apart from four daughters, out of them two daughters i.e.,

Petakamsetty Chayadevi (C2) and Adari Venkata Lakshmi Kantham (C3)

ASCJC :: AKP LAOP 101/1993 10 claimed share in the Award compensation amount but remained exparte in this claim petition.

(iii) Pilla Padamatayya Naidu (C5) is father of Pilla Surya Janardhana

Rao(C4), and husband of Pilla Kanthamma (C13).

(iv) C6-Pilla Gangayyamma claiming to be second wife of Pilla

Paramatayya Naidu and C7- Pilla Akhilesu Paradeesi Naidu, C8- Maddala

Lakshmi, C9 Pilla Venkata Lakhsmi and Pilla Maheswara Rao claiming to be children of C6 and C5 Pilla Paramatayya Naidu transposed themselves in this claim petition as claimants No.C6 to C9. As Pilla

Maheswara Rao died his wife and children are transposed as C10 to C12.

Therefore, the rival claim is between C4 & C13 and C1, C7 to C12 only.

13. The 1st claimant – Pilla Satyanarayana Murthy filed claim statement contending that he is entitled for 1/3 rd share of the compensation. The 4th Claimant - Pilla Surya Janardhana Rao came to the Court and filed claim statement stating that the property covered under Award devolved upon the father of this claimant I.e., Pilla

Paramatayya Naidu in a family partition along with his two brothers by name Balaramaswamy naidu and Satyanarayana and the father of the claimant died in the year 1981 leaving behind him as sole legal heir to him. Thus, this claimant is the absolute owner of the properties covered under the above said award. Except this claimant and his father, no one have any right, title or possession whatsoever over the properties mentioned in the Award i.e., S.No.163 of an extent of Ac.2-00 cents,

S.No.165 of an extent of Ac.2-22 cents and S.No.167 of an extent of

Ac.2-65 cents of Pedamadaka village. The other claimants have nothing to do with the Award mentioned properties and they never exercised any right over the property. The claim of the other claimants are

ASCJC :: AKP LAOP 101/1993 11 frivolous and vexatious under this award. As the compensation awarded by the Land Acquisition Officer is too low for the acquired land he reserves his right to file claim petition for enhancement of compensation.

14.Claimants 7 to 12 filed claim statements stating that the land acquired is the joint family land acquired by Pilla China Paradesi Naidu, father of C1, C5, and C14. In view of a registered will executed by late

Pilla Chinna Paradesi Naidu, during his life time in a sound and disposing state of mind on 24.12.1971 he bequeathed his property to his 3 sons to take in three equal shares. Thus three sons of Chinna Paradesi

Naidu i.e., Padamatayya Naidu, Balaraswamy Naidu and Pilla

Satyanarayana Murthy each entitled to 1/3rd share. Pilla Padamatayya

Naidu is entitled to 1/3rd share and his 1/3rd share is devolved on his two wives Pilla Gangayamma(C6) and Pilla Kanthamma (C13) and his sons Pilla Surya Janardhana Rao(C4), Raj Kumar Maheswara Rao, Akilesu

Paradesi Naidu (C7), Maddala Lakshmi (C8), Pilla Venkata Lakshmi (C9).

Raj Kumar died intestate unmarried leaving behind him and his mother

Gangayyamma (C6). Maheswara Rao died intestate leaving behind him his mother Gangayyamma (C6), his wife Parvathi (C10), Daughter Raja

Kumari (C11) Swaroopa Devi (C12). During his life time Maheswara Rao along with his brother Akilesu Paradesi Naidu, he filed a suit for partition in OS 110 of 1983 on the file of II Addl. Subordinate Judge court,

Visakhapatnam which is administratively transfered to the Gajuwaka

Senior Civil Judge’s Court and renumbered as OS 23/1999. The said suit

was contested from 1983 and nearly after 17 long years of contest, preliminary decree for partition was passed on 4.4.2000. As per the terms of the decree, the share of Pilla Padamatayya Naidu has to be

ASCJC :: AKP LAOP 101/1993 12 shared to his legal successors i.e., C1, C6, C8, C9. The property in question in this Land Acquisition OP is in S.No.163, 165 and 167 of

Pedamadaka village and they are Items No.18, 19, and 20 respectively in the decree schedule in Old OS No. 110 of 1983 is equal to the new OS 23/1999 on the file of Senior Civil Judge court, Gajuwaka. The 6th

Claimant -Pilla Gangayamma breathed her last on the intervening of 25/26.3.2003 and her legal representatives are C7 and C8. The compensation has to be shared in 3 equal shares between C5, C1 and

C14. None of the claimants are exclusively entitled for the compensation, all other contentions of the other claimants are wrong.

15.The 13th claimant – Smt Pilla Gangayamma filed claim statement that the property covered under the Award devolved upon the husband of this claimant i.e., Pilla Padamatayya Naidu in a family partition along with his two brothers Balaraswamy Naidu and Pilla Satyanarayana

Murthy. This claimant’s husband died in the year 1981. Pilla Surya

Janardhana Rao – 4th claimant is the only son of this claimant became entitled to the property of late Padamatayya Naidu. This claimant gave her share in the land acquired to the 4th claimant as he was looking after the maintenance and welfare of this claimant. During Award enquiry statement was also given to the LAO requesting him to pay the compensation to her son 4th claimant regarding her share also. Other claimants have nothing to do with the land and the compensation. The claim of the other claimants are frivolous and vexatious and they are not entitled to any compensation covered under the Award.

16. The first claimant was examined as P.W.1 and he stated that he filed the evidence affidavit on behalf of himself and his elder brother Pilla

ASCJC :: AKP LAOP 101/1993 13

Padamatayya Naidu’s legal heirs i.e., C6 to C12, except Pilla Surya

Jhanardhana Rao (C4). Pilla Gangayyamma (C6) breathed her last on 25/26.3.2003 and her legal Representatives are already on record as

Claimants No.7 to 12. The land originally belonged to his father Late

Pilla Chinna Paradesi Naidu and his father breathed his last on 23.4.1973 leaving him, three sons i.e., Pilla Padamatayya Naidu who died in 1981, Pilla Balaraswamy naidu and himself. The share of

Padamatayya Naidu who died intestate goes to his two wives

Kanthmma (mother of 4th claimant ) and Gangayamma ( C6) and his daughters C11 and C12, sons and their respective families.

17. During the course of cross examination, PW1 testifies that Pilla

China Paradesi naidu is his father and Balaramaswamy naidu and himself got four sisters. All the land is self acquired property of their father, Pilla Surya Janardhana Rao (4th claimant ) is son of his brother

Padamatayya Naidu. Late China Paradesi Naidu in his will executed in the year 1971 did not mention details of the property. His original will was executed in the year 1959 was superseded with the will of the year 1971. In the Will dated 1971 Paradesi naidu did not mention about the existence of second wife to Pilla Padamatyya Naidu by name

Gangayyamma and through Gangayyamma he gave birth to three sons and two daughters. In the year 1977 Land Ceiling Appellate authority passed an order in relation to their property and Land Reforms Tribunal passed an order dt.5.12.1977. He denied the suggestion that he got

Ac.46.00 lands in the order. After the death of China Paradesi Naidu, the three brothers some of their immovable properties representing their 1/3rd share, by the date of filing their written statement in OS 23/1999

ASCJC :: AKP LAOP 101/1993 14 by the time of partitioned their family properties. The landed property covered in this OP is part and parcel of the property in OS 23/1999.

P.W.1 admitted in cross examination that in the Will of 1971

Paradesinaidu did not mention about the existence of second wife to Pilla

Padamatayya naidu by name Gangayyamma and that through

Gangayyamma he begot 3 sons and 2 daughters, they have no personal knowledge about the marriage between Padamatayya naidu and Gangamma.

18. P.W.1 further admitted in cross-examination at page NO.4 that he has filed IP 3/1985 on the file of Senior Civil Judge Court, Anakapalle and he is not aware whether he has shown all movable and immovable properties. Evidently in the said IP, the claim schedule property is not shown.

19The claimant No.4- Pilla Surya Janardhana Rao examined himself as P.W.2 and reiterated the claim statement averments. In his cross examination he categorically stated that OS 23/1999 was decreed without his knowledge, and he contested the matter in the earlier court and when it was transferred to Gajuwaka, he did not receive any notices, hence he preferred an appeal and the same is pending as AS 282/2005 on the file of Hon’ble High Court of Andhra Pradesh. He denied the suggestion that Gangayamma is second wife of his father and children of his father and Gangayyamma are entitled for a share in the Award property.

20.One third party by name Smt Pilla Babji Lakshmi is examined as

P.W.3 and she deposed in favour of claimant No.4 and his mother and stated that except claimant No.4 no other person is entitled for the

ASCJC :: AKP LAOP 101/1993 15

Award compensation. Through her Ex.A5 (b) copy of order in LAOP 93/1999 on the file of this court was marked. As per the Ex.A5(b) C4-

Pilla Surya Janardhana Rao was stated as the only legal heir of Pilla

Padamatayya Naidu.

21.Claimant No.9 Smt Pilla Venkata Lakshmi is examined as P.W.4 and she reiterated her claim statement averments and deposed that

A.S.282/2005 was dismissed for default, hence the preliminary decree

in OS 23/1999 is made absolute. Hence herself along with other claimants i.e., second wife and children of Pilla Padamatayya Naidu are also entitled for the compensation in the Award. She admitted in cross examination at Page No.3 that “It is true my brothers filed partition suit in OS 110/1983 on the file of Senior Civil Judge’s Court

Visakhapatnam against me, my mother, my brother and my sisters and others, the suit is filed on the share of my father, 71 items are shown in the said suit, some of the items acquired by government and some of the items remains. Ex.A1 Item No.14,15,16, 34, and 35 are remains after acquisition. The land covered in Award not mentioned in Ex.A1 schedule.”

22.The learned counsel for claimant No.4 argued that P.W.4 has stated in her claim statement that the Award mentioned land is part and parcel of schedule properties in OS 23/1999 and her admission in the cross examination that the land covered in Award is not mentioned in

Ex.A1 Schedule is against her contentions in the claim statement. He also argued that her family members ( rival claimants) are not the family members of Pilla Chinna Paradesinaidu, as such they do not know

ASCJC :: AKP LAOP 101/1993 16 about the details of claim schedule property is acceptable under the facts and circumstances.

23.Sri T.N.V.Ravi Kumar, Senior Special Revenue Inspector./ Senior

Assistant is examined on behalf of referring officer/ government as

R.W.1 and he deposed that the land measuring Ac.20.65 cents in S.No.s 163, 165 and 167 were registered in the name of Karri

Satyanarayanamma, Pilla Paramatayya Naidu and Sri Pilla Varaha

Ramakrisshna Nageswara Rao @ Sayeee There was dispute between 1/3rd share of land belongs to claimant no.2 i.e., Pilla Paramatayya

Naidu, therefore, 1/3rd share of compensation was deposited under sec 30 & 31 (2) of L.A.Act. He was cross-examined at length but nothing was elicited from his cross examination except the admitted fact that the share of Pilla Paramatayya Naidu is in dispute.

24.Now it is an appropriate to read Section 30 of Land Acquisition

Act:-

Section 30 Dispute as to apportionment. When the amount of compensation has been settled under section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court.

Section 30 enables the Collector to refer the dispute to the Civil Court in two contingencies:-

(i) where there is a dispute as to the apportionment of the compensation among the various claimants; and

(ii) where there is a dispute regarding the persons entitled to the compensation.

ASCJC :: AKP LAOP 101/1993 17

Court has a duty to decide the dispute referred to it. It cannot refer the parties to a civil Court on the question of apportionment.

25.At this stage the learned counsel for claimant no.4 argued that

Claimant No.1 is claiming 1/3rd share in total extent of Ac.20.55 cents basing on Decree and Judgment in OS 23/1999 dt. 4.4.2000 (Ex.A1 and

A2) and Ex.A4 order of Land Ceiling authority. 1/3rd share of compensation was taken away by Karri Satyanarayanamma and another 1/3rd share of compensation was taken away by Pilla Varaha

Rama Krishna Nageswara Rao @ Sajyee s/o. Late Chinna Suryanarayana.

The dispute is with regard to the remaining 1/3rd share out of Ac.20.55 cents covered by 3 survey numbers i.e., 163, 165 and 167 of

Pedamadaka Village which was referred by the LAO under sec.30 and 31(2) of LA Act. Pilla Surya Janardhana Rao (C4) is the only person entitled for the 1/3rd share out of Ac.20.55 cents being only LR of Pilla

Padamatayya Naidu. The same is mentioned in Award (Ex.B1)

No.12/1980 dt. 22.12.1980 itself by LAO at page no. 95 and 96 of

Ex.B1 Award. C1 Pilla Satyanarayana Murhty claiming 1/3 rd share in the total extent of Ac.20.55 cents, even after fully knowing that he has no share in the said Award and 2/3rd share of compensation was already disbursed among the original claimants i.e., Karri

Satyanarayanamma and Pilla Varaha Rama Krishna Nageswara Rao @

Sajyee.

26. Learned Counsel for claimant No.4 further argued that the plaintiffs in OS 23/1999 (Ex.A1 and A2) Pilla Gangayyamma, Pilla

Maheswara Rao, Pilla Akhilesu Paradesi naidu, Pilla Venkata Lakshmi (P.W.4), Pilla Lakshmi and Pilla Satyanarayana Murthy (P.W.1), Pilla

ASCJC :: AKP LAOP 101/1993 18

Parvathi, Pilla Rajakumari, Pilla Swaroopa Devi, but not as stated by

P.W.4 that her brothers filed suit against herself and her mother seeking partition. Defendants in OS 23/1999 - Pilla Kanthamma (C13) and six others.

27. It was further argued that the averments of Ex.A3 and A6 reveal that as Pilla Padamatayya naidu failed to produce the birth certificates or any other certificate with regard to children through Pilla Gangayyamma,

Pilla Surya Janardhana Rao was declared as the only successor of Pilla

Padamatayya Naidu. This fact was admitted by P.W.4- Pilla Venkata

Lakshmi in her cross examination. Suppressing all the facts, in the year 1983 the Plaintiffs therein i.e., children of Pilla Gangayyamma filed suit vide OS 110/1983 which was later renumbered as OS 23/1999.

28. It was further argued that Ex.A3 is the Common order of Land

Reforms Tribunal dt. 15.06.1977. In Page NO.8 & 9 it was mentioned that Pilla Padamatayya Naidu could not give the date of birth of his son.

It is the ancestral property of Pilla Padamatayya Naidu, but not self acquired property as such, the alleged second wife sons cannot get share. Notional partition was effected between Pilla Padamatayya

Naiduy and Pilla Surya Janardhana Rao under Ex.A3 and the second wife and her children were not given any share. Suppressing the proceedings under Ex.A3, Pilla Gangayyamma and her children got filed

OS 110/1983 which is renumbered as OS 23/1999.

29.OS 23/1999 is a partition suit. The acquired property in this LAOP is not mentioned in the schedule of OS 23/1999. The whole claim of these claimants is based on the Judgment and decree in OS 23/1999 i.e., EX.A1 and A2 and it is an exparte decree. The decree was

ASCJC :: AKP LAOP 101/1993 19 challenged by C4 and C13 herein vide AS 582/2005 on the file of Hon’ble

High Court of AP and the same was dismissed for default. On 8.9.2016 restoration petition was filed and the same is pending and the AS is not attained any finality. On the basis of Ex.A1 and A2 Decree and

Judgment no final decree is filed till date and the same was admitted by

P.W.4 in her cross-examination. Ex.A1 to A4, are filed by P.W.1. A5 -

Certified copy of Decree in LAOP 93/1999 and A6 are filed P.W.4

Therefore they are estopped to deny the contents of said documents.

As per proceedings of under Ex.A3, P.W.1 has to surrender Ac.186-00 cents to government as surplus land and that fact is admitted by him in his cross-examination. As per Ex.A5 Yadastu - which is an oral partition (un-registered document) executed by Pilla Padamatayya naidu father of C4 and Pilla Balaraswamy Naidu (C14) in respect of claim schedule property and other properties. As per Ex. A5 yadastu the claim schedule property fell to the share of Pilla Padamatayya Naidu in turn to the share of Pilla Surya Janardhana Rao.

30. On the other hand in the written arguments filed on behalf of claimants NO.6 to 9 it was mentioned that while deciding OS 23/1999 the marriage of Pilla Padamatayya Naidu and Pilla Gangayyamma said to have taken place prior to 1946 which is long prior to Hindu Marriage

Act, 1956, the 2nd marriage must be held to be valid one and children of the second wife would be legitimate children. The Judgment and

Decree in OS 23/1999 has become final as the AP 582/2005 was dismissed for default. Therefore, Claimants NO.6 to 12 being the second wife and children of Pilla Padamatayya Naidu are also entitled for share in the compensation amount.

ASCJC :: AKP LAOP 101/1993 20

31. To substantiate the above said contentions, the learned counsel relied on the following judgment :

AIR 1973 Madras 92 (V26 C26) between E.K. Pattabirama

Reddiar Vs. K. Kanniappa Naicker (died) and others wherein it was held that the decision of an ordinary civil court in a civil suit in respect of the land would operate as resjudicata between the same parties in reference under sec.31 of the Land Acquisition Act regarding the apportionment of the compensation for the plan.

As per the above judgment, the decision of an ordinary civil court in a civil suit in respect of the land would operate as resjudicata, between the same parties. This decision is not applicable to the present case on hand.

32.It is the contention of the claimant No.9 that as per the Judgment and Decree in OS 23/1999 they were given share in the property of Pilla

Padamatayya Naidu and the schedule property in this claim petition is part and parcel of the property in OS 23/1999 decree schedule.

Claimant NO.9 was examined as P.W.4 and in her cross-examination she herself stated that the claim schedule property is not part of the property of OS 23/1999. A perusal of the schedule attached to Ex.A2

Preliminary Decree shows that there are as many as 71 items and all the items belong to different places i.e., Aganampudi, Swyambhuvaram and other places but no property in Pedamadaka village is shown in the schedule more particularly in the survey Nos. 163, 175 and 167 of

Pedamadaka Village. The claimants NO.6 to 12 are claiming share in the claim schedule property basing on OS 23/1999, and when the property in the claim petition is not part and parcel of the said suit, the

ASCJC :: AKP LAOP 101/1993 21 claimants No.6 to 12 cannot claim any share in the said property or compensation.

33. The averments of Ex.A3 and A6 reveal that as Pilla Padamatayya naidu failed to produce the birth certificates or any other certificate with regard to children through Pilla Gangayyamma, Pilla Surya Janardhana

Rao was declared as the only successor of Pilla Padamatayya Naidu. As admitted by P.W.1 in the Will dated 1971 Paradesi naidu did not mention about the existence of second wife to Pilla Padamatyya Naidu by name

Gangayyamma and through Gangayyamma he gave birth to three sons and two daughters. Though the will deed is not marked in this case, it can assumed that by 1971 the said Gangayyamma and her children might have acquaintance with the family of Pilla Padamatayya naidu, and non-mentioning of their existence in the Will of the year 1971 gives a doubt about the knowledge of the relationship between Pilla

Padamatayya Naidu and Pilla Gangayyamma to the family. The admission of P.w.1 that he does not know when the marriage of

Padamatayya naidu and Pilla Gangayyamma has taken place also gives rise to the doubt about the knowledge of the relationship of Pilla

Padamatayya Naidu and Pilla Gangayyamma.

34.As per Ex.A5 (b) Copy of Decree in LAOP 93/1999 dt. 22.3.2002, this court has allowed the claim of Pilla Surya Janardhana Rao as only LR of Pilla Padamatayyanaidu. From the admitted facts it is clear that there is dispute with regard to the share of Pilla Paramatayya Naidu who is eldest among three sons of Pilla China Paradesi Naidu. With regard to the shares of other two sons there is no dispute. Pilla Satyanarayana

Murthy has sought for share in this part of land, but it is admitted by

ASCJC :: AKP LAOP 101/1993 22

Pilla Satyanarayana Murthy that he himself filed IP 3/1985 wherein he has not mentioned the property of this Award as his assets. It shows that Pilla Satyanarayana Murthy knows pretty well that he has no share in this particular land.

35. Further another son of Pilla Chinna Paradesi Naidu i.e., Pilla

Balaraswamy Naidu who is claimant No.14 did not choose to file any claim statement and after his death his legal representatives were not brought on record. Therefore, it can be safely concluded that he has no share in the present land.

36. Coming to the share of Pilla Paramatayya Naidu, it is the contention of claimant No.4 that he is the only son of Pilla Paramatayya

Naidu and Kanthammma and he is entitled for the entire compensation of the Award pertaining to the land in S.No.163, 165 and 167. It is the specific contention of claimant No.4 in his evidence as well as in the written arguments put forth by his counsel that the Pilla Paramatayya

Naidu has only one wife and one son and Pilla Gangayyamma who is claiming to be second wife of Pilla Paramatayya naidu is his concubine and herself and her children are not entitled for any share in the property of Pilla Paramatayya naidu including the compensation in the

Award. He has denied that there was any will executed by his father

Pilla Paramatayya Naidu.

37.On appreciation of over all facts and circumstances and the evidence of PW1 to 4 and R.W.1 coupled with Exs.A1 to A6, Ex. C1 to

C4 and Ex.R1 establishes that the claimants NO.4, has got right, title

ASCJC :: AKP LAOP 101/1993 23 and possession over the property acquired by the Land Acquisition

Officer under Ex.R1 Award 12/1980.

38.In the result, it is declared that, the claimant No.4- Pilla Surya

Janardhana Rao is entitled for the 1/3rd share of Pilla Pamadatayya

Naidu’s share of compensation in the land acquired in S.No.163, 165 and 167 of an extent of 1/3rd share out of Ac.20.55 cents. Under these facts and circumstances, the claimants herein shall bear their own costs.

Typed to dictation to the Stenographer, corrected and pronounced by me in open Court this the 7th day of July, 2023.

Principal Senior Civil Judge,

FAC: Addl. Senior Civil Judge ( FTC) Anakapalle.

Appendix of evidence

No. of witnesses examined for

Claimants: Referring Officer:

PW.1 : Pilla Satyanarayana Murthy R.W.1 : TNV Ravi Kumar

P.W.2 : Pilla Surya Janardhana Rao

P.W.3 : Smt Pilla Babji Lakshmi

P.W.4 : Smt Pilla Venkata Lakshmi

No. of exhibits marked for

For Claimants:

Ex.A1 is photo stat copy of Judgment in OS 23/1999 dt. 4.4.2000

Ex.A2 is photo stat copy of Preliminary Decree in OS 23/1999 dt.

4.4.2000 of Sr. Civil Judge’s Court,Gajuwaka,

ASCJC :: AKP LAOP 101/1993 24

Ex.A3 is Xerox copy of Common Order of the Land Reforms Tribunal dt.

15.6.1977.

Ex.A4 is Xerox Copy of Land Ceiling declaration filed by Padamatayya

Naidu (C5).

Ex.A5 is Certified copy of Yadasthu dt.21.10.1978

Ex.A5 is certified copy of the decree in LAOP 93/1999

Ex.A6 is Photostat copy of order dt. 5.2.1977.

C-SERIES :

Ex.C1 to C3 are Award enquiry statements of Pilla Satyanarayana, Pilla

Suryanarayana, Padamatayya Naidu, Varaha Rama Krishna Nageswar

Rao and Karri Satyanarayana.

Ex.C4 is Award No.12/1980 dt. 22.12.1980.

Referring Officer:

Ex.B1 : Award Copy of Award No.12/1980 dt. 22.12.1980

PSCJ FAC: ASCJ (FTC) AKP

ASCJC :: AKP LAOP 101/1993 25

Date of presentation:12.01.2000/2.2.2002 Date of filing:26.03.2022

IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE (FTC) AT ANAKAPALLE

Present: Sri G.GANGARAJU,

Principal Senior Civil Judge,

FAC Additional Senior Civil Judge (FTC) Anakapalli

Friday this the 7 th Day of July, 2023

L.A.O.P.101/1993

Between

1.Pilla Satyanarayana Murthy (died)

2. Pethakamsetty Chayadevi, W/o. Appala Naidu, Hindu, Age: 50 years, residing at Vadarapalli Munagapaka Mandal, Visakhapatnam District

3.Adari Venkata Lakshmi Kantham, W/o. Apparao, Hindu, Age: 42 years, residing at Vadarapalli, Munagapaka Mandal, Visakhapatnam District.

4. Pilla Surya Janardhana Rao S/o. Late Padamatayya Naidu, Hind, Age: 75 years, residing at Satakampattu Veedhi, Gavarapalem, Anakapalle

5.Pilla Padamatayyanaidu ( died)

6.Pilla Gangayyamma, W/o. Late Padamatayya Naidu, Hindu, Age: 57 years, residing at Thummapala Village, Anakapalle Taluk, Visakhapatnam District. (died)

7.Pilla Akhilesu Paradesinaidu, W/o. Late Padamatayya Naidu, Hindu, Age: 22 years, residing at Thummapala Village, Anakapalle Taluk, Visakhapatnam District.

8.Maddala Laxmi ( since married maiden name is Pilla Laxmi) W/o. Appala Swamy (Daughter of Padamatayya Naidu), Hindu, Age: 22 years, R/o. residing at Thummapala Village, Anakapalle Taluk, Visakhapatnam District.

9. Pilla Venkata Laxmi, D/o. Late Padamatayya Naidu, Hindu, Age: about 12 years, residing at Thummapala Village, Anakapalle Taluk, Visakhapatnam District.

10.Pilla Parvathi, W/o. Pilla Maheswara Rao, Hindu, Age: about 30 years, residing at Income Tax Office Road, Gandhinagar, Anakapalle

11.Pilla Rajkumari, D/o. Late Pilla Maheswara Rao, Hindu, Age: about 12 years, residing at Income Tax Office Road, Gandhinagar, Anakapalle

12.Pilla Swarupa Devi, D/o. Late Pilla Maheswara Rao, Hindu, Age about 9 years, residing at Income Tax Office Road, Gandhinagar, Anakapalle

ASCJC :: AKP LAOP 101/1993 26 (Claimants No.6 to 12 are impleaded as legal representatives of claimant No.5 as per order in IA 133/2001 dt. 10.11.2003 )

13.Pilla Kanthamma, W/o. Late Padamatayya Naidu, Hindu, Age: 57 years, residing at Vadarapalli, Munagapaka Mandal, Visakhapatnam District. (died)

14.Pilla Balaramaswami Naidu, S/o. Late Paradesinaidu, Hindu Age: 57 years, residing at Vadarapalli, Munagapaka Mandal, Visakhapatnam District. (died)

15.Pilla Venkata Ramanamma, W/o. Late Pilla Satyanarayana Murthy, Housewife, Age: 67 years, Hindu, residing at D.No.16-4-64, 2nd Lane, Kota Veedhi, Nookambica Nagar, Gavarapalem.

16.Pilla Usharani, W/o. Pilla Chinna Paradesidnaidu, Hindu, Age: 28 years, Vadarapalli, Munagapaka Mandal, Visakhapatnam District.

17.Pilla Ravi Chaitanya Kumar, S/o. Late Pilla Chinna Paradesinaidu, Hindu, Age: 28 years, R/o. Vadarapalli, Munagapaka Mandal, Visakhapatnam District.

18.Kum Pilla Sravani, d/o. Pilla Chinna Paradesi Naidu, Age: 26 years, Hindu, R/o. Vadarapalli, Munagapaka Mandal, Visakhapatnam District.

19.Pilla Venkata Appa Rao, S/o. Late Satyanarayana Murthy, Hindu, Age: 52 years, residing at D.No.16-6-15, Nidanamdoddi Gavarapalem, Anakapalle.

20.Konathala Lakshmi , D/o. Late Pilla Suryanarayana Murthy and Wife of K.V.V. Prasad, Age: 48 years, Housewife, residing of House located in Women’s college road, Gavarapalem, Anakapalle

21.Pilla Srinivas, S/o. Late Satyanarayana Murthy, Hindu, Age: 45 years, residing at D.No.16-4-61/C, Kota Veedhi, Gavarapalem, Anakapalle. (Claimants No.15 to21 are impleaded as legal representatives of claimant No.1 ) …… Claimants And:

Special Officer, Steel Plant Land Acquisition ( Referring officer) VUDA Complex, Siripuram Junction, Visakhapatnam … Respondents

The Special Tahsildar, Steel Plant Land Acquisition (Referring Officer),

VUDA Complex, Siripuram Junction Visakhapatnam referred the matter to this

Court under Sections 30 and 31 of Land Acquisition Act, as there is a rival claim and the title has to be decided.

ASCJC :: AKP LAOP 101/1993 27

This petition has come before me for final hearing i.e., 09.05.2023 in the presence of Sri P.V.S.J. Mohan Rao, Advocate for Claimant NO.4 and of M/s. Lanka Venkateswarlu & Co., Advocate counsel for Claimants NO.1, 6 to 9 and of Sri G. Paradesi, Assistant Government Pleader for Referring officer/ Government, and upon perusing the material on record upon hearing the arguments and the same having stood over till this day for consideration this court doth order and,

DECREE

1) that the petition be and the same is hereby disposed off declaring that the 1st claimant is hereby entitled for 1/3 rd share of compensation in the land acquired in S.No.223/2 of an extent of

Ac.14.16 cents and claimants 24 to 26 are entitled for compensation for their respective shares i.e., Ac.1.41 ½ cents,

Ac.1.41 ½ cents and Ac.1.42 cents respectively as mentioned in

Ex.P1 to P3; and

2)that there be no costs.

Given under my hand and the seal of the court, this the 21st day of April, 2023.

PRINCIPAL SENIOR CIVIL JUDGE,

ANAKAPALLE

MEMORANDUM OF COSTS

For claimants:-For Referring Officer:-

No costs memo is filed on either side.

PSCJ/AKP

ASCJC :: AKP LAOP 101/1993 28

1

IN THE COURT OF THE RENT CONTROLLER : AT VISAKHAPATNAM.

PRESENT: Sri G.Ganga Raju, Rent Controller, Visakhapatnam.

Thursday the Seventh day of May, 2015

R.C.C.NO.10/2014

Between:

1. Smt. Jamisetty Appala Konda, W/o. Late J.Sanyasi Rao, Hindu, aged 58 years, r/at.D.No.18-74-36/A, Salipeta, Visakhapatnam.

2. Jamisetty Lakshmi Rama Krishna, S/o. Late Jamisetty Sanyasi Rao, aged 31 years, r/at.D.No.18-74-36/A, Salipeta, Visakhapatnam.

…... Petitioners

And:

Smt. Kadithi Ravanamma, W/o. Yeruku Naidu, Hindu, aged 35 years, D.No.26-15-104A/1, Near Poorna Market, Visakhapatnam-530001.

...…Respondent

This petition is coming before me on 04-05-2015 in the presence of S/Sri R.V.K.Naidu, B.Ramesh, A.Varahala Rao, Advocates for Petitioner and Sri I.Rama Krishna, Advocate for respondent and having stood over for consideration till this day, the Court delivered the following:

O R D E R

This is the Petition filed under Section 10(2)(i)(vi) and Section 10(1)(a) of

Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, for eviction of the respondent from petition schedule premises with costs.

2.A conspectus of petitioners' claim is as follows:

They are the absolute owners of the schedule property, originally the schedule property is ancestral property of Jamisetty Sanyasi Rao, the said Sanyasi Rao devolved the property by virtue of Hindu Succession after demise of his father, thus the said

Sanyasi Rao became the absolute owner of the schedule property, subsequently he constructed several tiled houses, asbestos houses and R.C.C.Buildings in the year 1970, subsequently he constructed several R.C.C.Buildings and shops, with plan approval in the year 1975, the said Jamisetty Sanyasi Rao executed Registered Will, in favour of the petitioners and other family members on 20-09-1986, the said Sanyasi Rao expired on 14-11-1986, after his demise the petitioners and other legal heirs became absolute

2

owners of their respective properties by virtue of Will executed by the said Sanyasi Rao and subsequently property tax was assessed in the petitioners name and the petitioners are paying property tax to the Municipal Corporation and electricity bills, the first petitioner let out the schedule premises to the respondent on an oral agreement on a monthly rent of Rs.600/- in the month of April 2001, the rent has been increased from time to time and the present rent is Rs.1,200/-, the respondent paid monthly rents regularly without any default till August 2013, thereafter committed default from

September 2013, on repeated demands the respondent failed to pay monthly rent and filed suit for injunction. Hence this petition.

3. The respondent filed counter contending inter-alia that she is not the tenant to the petitioners, her house and schedule premises are quite different, her house is an ancestral property, extent only 20 square yards, which is occupied by her ancestors and constructed the same 25 years ago. Hence, she is the absolute owner of small house, she have possession and enjoyment of the house, since their ancestors. The

Government of India and Government of Andhra Pradesh issued house hold card, voter identity card, residence certificate and other certificates in their favour and for her family members and the name of the electricity meter is allotted in the name of said

Sanyasi Rao. There is no relationship between the petitioners and herself as landlords and tenant. Hence the petition is liable to be dismissed.

4.During the course of enquiry, on behalf of petitioner, P.Ws.1 to 6 were examined and Exs.P.1 to P.22 were marked. On behalf of respondent, R.Ws.1 and 2 were examined and Exs.R.1 to R.9 were marked.

5. Heard arguments on either side besides their written arguments.

6. Now the points arises for consideration are:-

1. Whether the denial of title of petitioners by the respondent is bonafide?

2. Whether there is any Jural relationship as landlord and tenant between petitioners and respondent?

3. Whether the respondent committed willful default in payment of monthly rents to the petitioners?

4. Whether the petitioners are entitled to evict the respondent from petition schedule premises?

5. To what relief?

3

POINT Nos.1 & 2:

7.Point Nos.1 and 2 are dealt together to avoid repetition.

It is an undisputed fact that the first petitioner is the wife of Late Jamisetty

Sanyasi Rao and second petitioner is their son, the schedule property covered under

Survey No.653/1A, Block No.20, Maharanipeta Ward, Visakhapatnam.

8.According to the petitioners, the schedule property is ancestral property of Late

Jamisetty Sanyasi Rao, who is the husband of first petitioner and father of second petitioner, by virtue of Hindu Succession, after demise of his father, the said Late

Jamisetty Sanyasi Rao became absolute owner of the schedule property, subsequently the said Sanyasi Rao constructed several tiled houses, asbestos and R.C.C.Buildings in the years 1970 and 1975 with plan approval of Municipality, Visakhapatnam, during his lifetime, he executed a Will, dated 20-09-1986, in favour of the petitioners and also in favour of Late Jamisetty Sanyasi Rao, Shyam Sundar, Sarat Sundar and Venusri and others. The said Late Jamisetty Sanyasi Rao expired on 14-11-1986, leaving behind the petitioners and legal heirs, after demise of said Late Jamisetty Sanyasi Rao, the petitioners and other legal heirs became absolute owners of their respective properties by virtue of Will executed by said Late Jamisetty Sanyasi Rao and subsequently the property tax was assessed in the name of petitioners, they are paying electricity charges to the schedule premises.

9.It is also contention of the petitioners that the first petitioner let out the premises to the respondent in the month of April 2001, thus the respondent is a tenant of petitioners. Per contra, the respondent categorically denied the title of the petitioners and existing Jural relationship as landlords and tenant, and claiming right as of landlady of the schedule premises. According to the respondent, her ancestors occupied an extent of 20 Sq. yards and constructed house at about 25 years back, hence she is the absolute owner of the schedule property, the Government of India and Government of

Andhra Pradesh recognized his possession and issued house hold card, voter identity card, residential certificate and other certificates in her favour and in favour of her family members.

10.The pleadings and evidence are clinchingly clear that the petitioners as well as

4

respondent claiming right and title over the schedule property basing on their possession and documents. As per the contention of the respondent, originally the schedule property belongs to Government, her ancestors and Late Jamisetty Sanyasi

Rao occupied the same, and constructed house there on, therefore, the schedule property and her property are different.

11.When the tenant categorically denied the right, title and possession of the landlord, initial burden lies on the landlord to establish his prima-facie right and title over the schedule property to determine the nature of dispute under Rent Control Act.

The complicated question of title cannot be determined under Rent Control Act, but it is looked into the prima-facie title of the parties in proceedings to arrive conclusion.

12.Section 10(i) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, provides “ A tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 13:

Provided that where the tenant, denies the title of the landlord, the Controller shall decide whether the denial is bonafide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in the Civil Court. If the landlord establishes that the denial of title by the tenant is not bonafide, it is a ground for eviction.”

13.Now the burden lies on the petitioners, to establish their prima-facie title of the schedule property and the denial of their title by the respondent is not bonafide.

14.To substantiate the contention of the petitioners, the second petitioner examined as P.W.1, re-iterated the petition averments and exhibited Exs.P.1 to P.22 documents in his evidence. Ex.P.1 is certified copy of extract of Town Survey Register, in

T.S.No.653/1-A, dated 09-01-1990. The said extract of Town Survey Register stands in the name of Jamisetty Sanyasi Rao, who is the husband of the first petitioner and father of second petitioner, in respect of T.S.No.653/1-A, i.e., the petition schedule property covered. Ex.P.2 is the certified copy of Will executed by Jamisetty Sanyasi

Rao, in favour of petitioners and some others in respect of schedule property and some properties. Ex.P.3 is the attested copy of death certificate of Jamisetty Sanyasi Rao.

Ex.P.4 is house tax pass book, issued by Greater Visakhapatnam Municipal Corporation,

5

Visakhapatnam, in the name of Jamisetty Lakshmi Rama Krishna, second petitioner in respect of D.NO.26-15-103/1. Ex.P.5 is the house tax pass book issued in the name of second petitioner in respect of D.No.26-15-104/A-1. Ex.P.6 is house tax pass book in the name of the petitioners in respect of D.No.26-15-104/B. Ex.P.7 is house tax pass book issued in the name of petitioners in respect of D.No.26-15-103C. Ex.P.8 is house

Plan issued by Commissioner, Greater Visakhapatnam Municipal Corporation,

Visakhapatnam to second petitioner. Ex.P.9 is served copy of plaint evincing the respondent and others filed suit for permanent injunction, against the petitioners and others. Ex.P.10 is written statement in O.S.No.612/2013 filed by the first defendant.

Ex.P.11 is office copy of registered lawyer's notice issued to Commissioner, Greater

Visakhapatnam Municipal Corporation, Visakhapatnam, dated 30-03-2014. Ex.P.12 is neat copy of plaint in O.S.No.227/2014. Ex.P.13 is 5 positive photographs with C.D.

Ex.P.14 is office copy of Registered Lawyer's notice, dated 9-12-2013. Ex.P.15 is office copy of registered lawyer's notice, dated 19-12-2013. Ex.P.16 is Tax pass book in the name of J.Venkata Padma Lakshmi Radhika bearing D.No.26-15-103/B. Ex.P.17 is Tax receipts issued by Government of Andhra Pradesh, dated 21-03-2014. Ex.P.18 is electricity bills, dated 05-08-2014, in the name of J.V.P.L.Radhika bearing

D.No.26-15-103/B. Ex.P.19 is house tax book stands in the name of J.Venkata Padma

Lakshmi Radhika, in respect of D.No.26-15-103B. Ex.P.20 is photostat copy of acknowledgment attested by R.W.1. Ex.P.21 is letter, dated 24-01-2015 confronted to the witness. Ex.P.22 is the receipt issued by the police.

15.After thorough scrutiny of the aforesaid documents, extract of Town Survey

Register relating to S.No.653/1-A, stands in the name of Jamisetty Sanyasi Rao, he executed a Will in favour of the petitioners and some others in respect of schedule property and he died on 14-11-1986. It is further established that the property Tax assessed in the name of petitioners and their family members, in respect of schedule premises and other premises, the petitioners and respondent filed suits against each other which are pending adjudication. So also, the petitioners and respondent exchanged notices prior to filing of the petition.

16.During the course of cross-examination, P.W.1 testifies his father acquired the

6

property through his father, he filed documents into Court to that effect, he had filed revenue records in respect of schedule property. The respondent gave suggestion to

P.W.1 that his father manipulated Municipal records by mutating his name in the capacity of Municipal Counselor. As per the suggestion the name of the Jamisetty

Sanyasi Rao mutated in Municipal records. It is also admitted fact that the electricity service connection originally stands in the name of Jamisetty Sanyasi Rao. Till today, the assessment of house tax and electricity connection stands in the name of Jamisetty

Sanyasi Rao and his family members.

17.The respondent further suggested P.W.1 that the respondent occupied the schedule premises twenty years back and residing with her own rights. Where as, the name of the respondent or her ancestors were not mutated in Municipal Records and the respondent did not get electricity connection in her name to show her continuous and un-interrupted possession for the period of twenty years. Even according to the respondent, Jamisetty Sanyasi Rao and ancestors of respondent occupied the

Government land and constructed houses. Where as, the respondent and her ancestors did not make any efforts to settle their possession, basing on relative records. On the other hand, one way or other Jamisetty Sanyasi Rao settled his possession, by mutating his name in Municipal records and paying property tax and electricity charges.

Admittedly, any Government Authority did not claim any rights over the schedule property, till today. More over, the Municipal Corporation recognized the right and possession of Jamisetty Sanyasi Rao and his relatives.

18.It is one of the contention of the respondent that the Government recognized her possession and issued voter identity card, ration card, residence certificate and caste certificate. It is a settled law, voter identity card, ration card, residence certificate and caste certificate does not confer the title or possession of a party. Levying the assessment of property tax and electricity bills confers the possession of the parties in dispute. The Government provided voter identity card, ration card, residence certificate, caste certificate and other certificates, to the residence of the premises irrespective of right, title and possession. Those documents does not confer the possession of the parties as owners of the premises in which they are residing.

7

19.The petitioners examined P.W.2 who is son of Jamisetty Sanyasi Rao, who fully supported the claim of the petitioners. During the course of cross-examination of P.W.2, the respondent suggested the extent covered under Survey No.653/1A which belongs to Isukathota Satyanarayana Swamy Temple and Government. Where as, the Town

Survey register does not contain the name of Isukathota Satyanarayana Swamy Temple or Government. On the other hand, Isukathota Satyanarayana Swamy Temple and

Government not claiming any right and title over the schedule property. Further, the respondent suggested to P.W.2 that prior to 1985 they have no rights on the schedule property and constructed houses as well as respondent. The suggestion itself reveals that after 1985, the petitioners' family and respondent occupied the property and constructed houses. Where as the respondent did not file any document evidencing her contention that she occupied the schedule property and constructed houses prior to 1985.

20.P.W.2 further testifies in cross-examination, that since 1987 they have been paying house tax to the property bearing D.No.26-15-103/1, 26-15-103/C, 26-15-104/A/1, 26-15-104/B. The ocular testimony of P.W.2 is supported by the documents exhibited by the petitioners. Admittedly, the respondent failed to file house tax pass book, house tax receipts and electricity bills, supporting their settled possession as of owners. The petitioners also examined P.Ws.3 to 5, who are said to be their previous tenants. P.Ws.3 to 5 fully supported the claim of the petitioners. P.W.6 is the cable operator also supported the claim of the petitioner. During the course of cross-examination of P.Ws.1 to 6, nothing has elicited to disbelieve their testimony and no infirmities and improbabilities could be seen in their evidence.

21.To substantiate the contention of the respondent, the respondent herself examined as R.W.1, re-iterated the counter averments and exhibited Exs.R.1 to R.9 documents. During the course of cross-exsamination, R.W.1 testifies she mentioned in the counter that the Jamisetty Sanyasi Rao executed a Will, as per the Will the property belongs to the petitioners and Jamisetty Sanyasi Raju. It shows, the respondent admitting the execution of Will by Jamisetty Sanyasi Rao. R.W.1 further testifies, she have not filed any documents into Court, evidencing her right and title over the

8

schedule property. She is not paying any tax to Greater Visakhapatnam Municipal

Corporation, Visakhapatnam, for the schedule premises. Therefore, R.W.1 herself admitted that she have not filed any document evidencing her right and title and she is not paying any tax to Greater Visakhapatnam Municipal Corporation, Visakhapatnam for the schedule premises. A close scrutiny of the evidence of R.W.1, R.W.1 admitted that the petitioners have been paying house tax and electricity charges, in respect of schedule premises, she have not filed any document evidencing her right and title, so also, the right and title of Government. R.W.1 further admitted that previously one

P.Bharathi i.e., P.W.3 was a tenant in the schedule property area, the P.W.6 is a cable

T.V.Operator. Therefore, the evidence of P.Ws.3 to 6 is trust worthy and reliable.

22.The respondent examined R.W.2, in support of his contention taken in the pleadings. Where as, even in chief-examination affidavit, R.W.2 testifies, he know Late

Sanyasi Rao occupied the Government land and constructed shop at Bapuji Konda, near

Poorna Market, Visakhapatnam, and respondent ancestors, constructed the building, shops and houses by occupying Government land, the petitioners have right, interest, possession and enjoyment of the same. This portion of evidence of R.W.2 is supporting the case of the petitioner that Late Jamisetty Sanyasi Rao constructed schedule premises and they have right and title over the schedule property. The evidence of

R.W.2 was not denied by the respondent. It is the contention of the respondent and the evidence of R.W.2 that Jamisetty Sanyasi Rao and respondent ancestors occupied

Government land and constructed buildings there on. Where as, the petitioners adduced evidence that Jamisetty Sanyasi Rao constructed houses and perfected his possession by mutating his name in the relevant records. Whether Jamisetty sanyasi

Rao has occupied Government land or devolved through his ancestors is not borne on record, the said aspect is not germane consideration to determine the nature of dispute. The question of title cannot be determined in Rent Control proceedings, the prima-facie title is enough. The pleadings and evidence of petitioners has been establishing the prima-facie title. Where as, the respondent failed to adduce evidence that their ancestor occupied the Government land and constructed house and the respondent has been residing in the schedule premises as of owner, in support of her

9

contention taken in the pleadings. The contention of the respondent is remained as contention.

23.Eventually, the respondent did not claim any right over the schedule property by adverse possession. The respondent is claiming right and title over the schedule property, as it is devolved to her through her ancestors. Where as, the respondent failed to adduce any positive evidence in support of her contention taken in the pleadings. On the other hand, the petitioners adduced ocular and documentary evidence in support of their contention taken in the pleadings. Thus, it is clear that the petitioners established their prima-facie right and title over the schedule property and the respondent failed to lead any rebuttal evidence in disputing the evidence of P.Ws.1 to 6 and Exs.P.1 to P.26. The contention of the respondent is not supported by any evidence. Where as the respondent failed to establish her possession as landlord.

Accordingly, these points answered in favour of the petitioners and against the respondent.

POINT NO.3:

24.It is one of the contention of the petitioners that the respondent committed default in payment of monthly rents from September 2013 onwards. Even according to the respondent, she did not pay any rent to the petitioners and claiming right and title as of landlady by denying the title of the petitioners.

25.Where as, the respondent failed to adduce evidence that her denial is bonafide.

Where the tenant denied the title of the landlord, enquiry has to be made as to whether denial is bonafide or not. If denial is bonafide, eviction petition has to be dismissed, otherwise eviction can be ordered without further enquiry in respect of other grounds and no order need be passed. Obviously, for that reason the respondent is the tenant of the schedule premises. The evidence of P.Ws.1 to 6 reveals, the respondent is the tenant of schedule premises, paid rents to the petitioners and later committed willful default. Under these facts and circumstances, there is no need to elaborate order in respect of default in payment of monthly rents. Accordingly, this point is answered.

POINT NO.4:

26.Analyzing the pleadings and evidence, the petitioners established that the denial

10

of title by the tenant is not bonafide and there is jural relationship as landlord and tenant between the petitioners and respondent. Where the tenant denied the title of the landlord, she failed to prove such denial is bonafide, it is a ground for eviction under Section 10(2)(vi) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control

Act. Therefore, the petitioners are entitled to evict the respondent from petition schedule premises.

POINT NO.5:

27.In the result, the petition is allowed with costs, directing the respondent to vacate the petition schedule premises and hand over the vacant possession to the petitioners within three months. Failing which the petitioners can evict the respondent, by way of executing this order, under due process of Law.

(A copy of schedule is herewith attached to this order)

Dictated to Typist, transcribed by her, corrected and pronounced

by me in open court on this the 7th day of May, 2015.

Rent Controller, Visakhapatnam.

Appendix of Evidence

For Petitioners: For Respondent:

PW.1: Jamisetty Laxmi Rama Krishna RW.1: Smt. Kadithi Ravanamma PW.2: Jamisetty Sanyasi Raju RW.2: K.Appa Rao PW.3: Ch.Bharathi PW.4: B.Satyavathi PW.5: V.Chandra Sekhar PW.6: B.Surya Lakshmana Kumar

Documents Marked

For Petitioners:

Ex.P.1/ Certified copy of extract of Town Survey Register, in T.S.No.653/1-A, dated 09-01-1990. Ex.P.2/ The certified copy of Will executed by Jamisetty Sanyasi Rao, in favour of petitioners and some others in respect of schedule property and some properties. Ex.P.3/ The attested copy of death certificate of Jamisetty Sanyasi Rao; Ex.P.4/ House tax pass book, issued by Greater Visakhapatnam Municipal Corporation, in the name of Jamisetty Lakshmi Rama Krishna, second petitioner in respect of D.NO.26-15-103/1; Ex.P.5/ The house tax pass book issued in the name of second petitioner in respect of 26-15-104/A-1;

11

Ex.P.6/ House tax pass book in the name of the petitioners in respect of 26-15-104/B; Ex.P.7/ House tax pass book issued in the name of petitioners in respect of D.No.26-15-103C; Ex.P.8/ House Plan issued by Commissioner, Greater Visakhapatnam Municipal Corporation, Visakhapatnam to second petitioner; Ex.P.9/ Served copy of plaint evincing the respondent and others filed suit for permanent injunction, against the petitioners and others; Ex.P.10/ Written statement in O.S.No.612/2013 filed by the first defendant; Ex.P.11/ Office copy of registered lawyer's notice issued to Commissioner, Greater Visakhapatnam Municipal Corporation, Visakhapatnam, dated 30-03-2014; Ex.P.12/ Neat copy of plaint in O.S.No.227/2014; Ex.P.13/ 5 positive photographs with C.D.,; Ex.P.14/ Office copy of Registered Lawyer's notice, dated 9-12-2013; Ex.P.15/ Office copy of registered lawyer's notice, dated 19-12-2013; Ex.P.16/ Tax pass book in the name of J.Venkata Padma Lakshmi Radhika bearing D.No.26-15-103/B; Ex.P.17/ Tax receipts issued by Government of Andhra Pradesh, dated 21-03-2014; Ex.P.18/ Electricity bills, dated 05-08-2014, in the name of J.V.P.L.Radhika bearing D.No.26-15-103/B; Ex.P.19/ House tax book stands in the name of J.Venkata Padma Lakshmi Radhika, in respect of D.No.26-15-103B; Ex.P.20/ Photostat copy of acknowledgment attested by respondent; Ex.P.21/ Letter, dated 24-01-2015 confronted to the witness; Ex.P.22/ The receipt issued by the police.

For Respondent:

Ex.R.1/ Compared copy of Ration card stands in the name of respondent. Ex.R.2/ Compared copy of Aadhar card stands in the name of respondent. Ex.R.3/ Positive photograph with C.D. Ex.R.4/ Positive photograph with C.D. Ex.R.5/ Income certificate issued in the name of my son. Ex.R.6/ Caste certificate stands in the name of my son. Ex.R.7/ Residence certificate stands in the name of my son. Ex.R.8/ Compared copy of health card issued in the name of respondent. Ex.R.9/ Stamped receipt.

Rent Controller, Visakhapatnam.

MEMORANDUM OF COSTS

PETITIONERS Rs. Ps. RESPONDENT

Stamp on Vakalat - 2 - 00 No cost memo filed. Stamp on petition - 10 –00 Process Fees - 80 - 00 Advocate Fees(claimed)-2,000 – 00 ---------------- Costs allowed - 2,092 – 00 ---------------- (Rupees Two Thousand and Seventy Two only)

Rent Controller, Visakhapatnam.

1

IN THE COURT OF THE RENT CONTROLLER : AT VISAKHAPATNAM.

PRESENT: Sri G.Ganga Raju, Rent Controller, Visakhapatnam.

Thursday the Seventh day of May, 2015

R.C.C.NO.12/2014

Between:

1. Smt. Jamisetty Appala Konda, W/o. Late J.Sanyasi Rao, Hindu, aged 58 years, r/at.D.No.18-74-36/A, Salipeta, Visakhapatnam.

2. Jamisetty Lakshmi Rama Krishna, S/o. Late Jamisetty Sanyasi Rao, aged 31 years, r/at.D.No.18-74-36/A, Salipeta, Visakhapatnam.

…... Petitioners

And:

Smt. Singarapu Satyavathi, W/o. Narayana, Hindu, aged 30 years, D.No.26-15-103/C, Near Poorna Market, Visakhapatnam-530001.

...…Respondent

This petition is coming before me on 04-05-2015 in the presence of S/Sri R.V.K.Naidu, B.Ramesh, A.Varahala Rao, Advocates for Petitioner and Sri I.Rama Krishna, Advocate for respondent and having stood over for consideration till this day, the Court delivered the following:

O R D E R

This is the Petition filed under Section 10(2)(i)(vi) and Section 10(1)(a) of

Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, for eviction of the respondent from petition schedule premises with costs.

2.A conspectus of petitioners' claim is as follows:

They are the absolute owners of the schedule property, originally the schedule property is ancestral property of Jamisetty Sanyasi Rao, the said Sanyasi Rao devolved the property by virtue of Hindu Succession after demise of his father, thus the said

Sanyasi Rao became the absolute owner of the schedule property, subsequently he constructed several tiled houses, asbestos houses and R.C.C.Buildings in the year 1970, subsequently he constructed several R.C.C.Buildings and shops, with plan approval in the year 1975, the said Jamisetty Sanyasi Rao executed Registered Will, in favour of the petitioners and other family members on 20-09-1986, the said Sanyasi Rao expired on 14-11-1986, after his demise the petitioners and other legal heirs became absolute

2

owners of their respective properties by virtue of Will executed by the said Sanyasi Rao and subsequently property tax was assessed in the petitioners name and the petitioners are paying property tax to the Municipal Corporation and electricity bills, the first petitioner let out the schedule premises to the respondent on an oral agreement on a monthly rent of Rs.1,000/- in the month of May 2010, the rent has been increased from time to time and the present rent is Rs.1,200/-, the respondent paid monthly rents regularly without any default till August 2013, thereafter committed default from

September 2013, on repeated demands the respondent failed to pay monthly rent and filed suit for injunction. Hence this petition.

3. The respondent filed counter contending inter-alia that she is not the tenant to the petitioners, her house and schedule premises are quite different, her house is an ancestral property, extent only 20 square yards, which is occupied by her ancestors and constructed the same 25 years ago. Hence, she is the absolute owner of small house, she have possession and enjoyment of the house, since their ancestors. The

Government of India and Government of Andhra Pradesh issued house hold card, voter identity card, residence certificate and other certificates in their favour and for her family members and the name of the electricity meter is allotted in the name of said

Sanyasi Rao. There is no relationship between the petitioners and herself as landlords and tenant. Hence the petition is liable to be dismissed.

4.During the course of enquiry, on behalf of petitioner, P.Ws.1 to 6 were examined and Exs.P.1 to P.22 were marked. On behalf of respondent, R.Ws.1 and 2 were examined and Exs.R.1 to R.6 were marked.

5. Heard arguments on either side besides their written arguments.

6. Now the points arises for consideration are:-

1. Whether the denial of title of petitioners by the respondent is bonafide?

2. Whether there is any Jural relationship as landlord and tenant between petitioners and respondent?

3. Whether the respondent committed willful default in payment of monthly rents to the petitioners?

4. Whether the petitioners are entitled to evict the respondent from petition schedule premises?

5. To what relief?

3

POINT Nos.1 & 2:

7.Point Nos.1 and 2 are dealt together to avoid repetition.

It is an undisputed fact that the first petitioner is the wife of Late Jamisetty

Sanyasi Rao and second petitioner is their son, the schedule property covered under

Survey No.653/1A, Block No.20, Maharanipeta Ward, Visakhapatnam.

8.According to the petitioners, the schedule property is ancestral property of Late

Jamisetty Sanyasi Rao, who is the husband of first petitioner and father of second petitioner, by virtue of Hindu Succession, after demise of his father, the said Late

Jamisetty Sanyasi Rao became absolute owner of the schedule property, subsequently the said Sanyasi Rao constructed several tiled houses, asbestos and R.C.C.Buildings in the years 1970 and 1975 with plan approval of Municipality, Visakhapatnam, during his lifetime, he executed a Will, dated 20-09-1986, in favour of the petitioners and also in favour of Late Jamisetty Sanyasi Rao, Shyam Sundar, Sarat Sundar and Venusri and others. The said Late Jamisetty Sanyasi Rao expired on 14-11-1986, leaving behind the petitioners and legal heirs, after demise of said Late Jamisetty Sanyasi Rao, the petitioners and other legal heirs became absolute owners of their respective properties by virtue of Will executed by said Late Jamisetty Sanyasi Rao and subsequently the property tax was assessed in the name of petitioners, they are paying electricity charges to the schedule premises.

9.It is also contention of the petitioners that the first petitioner let out the premises to the respondent in the month of May 2010, thus the respondent is a tenant of petitioners. Per contra, the respondent categorically denied the title of the petitioners and existing Jural relationship as landlords and tenant, and claiming right as of landlady of the schedule premises. According to the respondent, her ancestors occupied an extent of 20 Sq. yards and constructed house at about 25 years back, hence she is the absolute owner of the schedule property, the Government of India and Government of

Andhra Pradesh recognized his possession and issued house hold card, voter identity card, residential certificate and other certificates in her favour and in favour of her family members.

10.The pleadings and evidence are clinchingly clear that the petitioners as well as

4

respondent claiming right and title over the schedule property basing on their possession and documents. As per the contention of the respondent, originally the schedule property belongs to Government, her ancestors and Late Jamisetty Sanyasi

Rao occupied the same, and constructed house there on, therefore, the schedule property and her property are different.

11.When the tenant categorically denied the right, title and possession of the landlord, initial burden lies on the landlord to establish his prima-facie right and title over the schedule property to determine the nature of dispute under Rent Control Act.

The complicated question of title cannot be determined under Rent Control Act, but it is looked into the prima-facie title of the parties in proceedings to arrive conclusion.

12.Section 10(i) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, provides “ A tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 13:

Provided that where the tenant, denies the title of the landlord, the Controller shall decide whether the denial is bonafide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in the Civil Court. If the landlord establishes that the denial of title by the tenant is not bonafide, it is a ground for eviction.”

13.Now the burden lies on the petitioners, to establish their prima-facie title of the schedule property and the denial of their title by the respondent is not bonafide.

14.To substantiate the contention of the petitioners, the second petitioner examined as P.W.1, re-iterated the petition averments and exhibited Exs.P.1 to P.22 documents in his evidence. Ex.P.1 is certified copy of extract of Town Survey Register, in

T.S.No.653/1-A, dated 09-01-1990. The said extract of Town Survey Register stands in the name of Jamisetty Sanyasi Rao, who is the husband of the first petitioner and father of second petitioner, in respect of T.S.No.653/1-A, i.e., the petition schedule property covered. Ex.P.2 is the certified copy of Will executed by Jamisetty Sanyasi

Rao, in favour of petitioners and some others in respect of schedule property and some properties. Ex.P.3 is the attested copy of death certificate of Jamisetty Sanyasi Rao.

Ex.P.4 is house tax pass book, issued by Greater Visakhapatnam Municipal Corporation,

5

Visakhapatnam, in the name of Jamisetty Lakshmi Rama Krishna, second petitioner in respect of D.NO.26-15-103/1. Ex.P.5 is the house tax pass book issued in the name of second petitioner in respect of D.No.26-15-104/A-1. Ex.P.6 is house tax pass book in the name of the petitioners in respect of D.No.26-15-104/B. Ex.P.7 is house tax pass book issued in the name of petitioners in respect of D.No.26-15-103C. Ex.P.8 is house

Plan issued by Commissioner, Greater Visakhapatnam Municipal Corporation,

Visakhapatnam to second petitioner. Ex.P.9 is served copy of plaint evincing the respondent and others filed suit for permanent injunction, against the petitioners and others. Ex.P.10 is written statement in O.S.No.612/2013 filed by the first defendant.

Ex.P.11 is office copy of registered lawyer's notice issued to Commissioner, Greater

Visakhapatnam Municipal Corporation, Visakhapatnam, dated 30-03-2014. Ex.P.12 is neat copy of plaint in O.S.No.227/2014. Ex.P.13 is 5 positive photographs with C.D.

Ex.P.14 is office copy of Registered Lawyer's notice, dated 9-12-2013. Ex.P.15 is office copy of registered lawyer's notice, dated 19-12-2013. Ex.P.16 is Tax pass book in the name of J.Venkata Padma Lakshmi Radhika bearing D.No.26-15-103/B. Ex.P.17 is Tax receipts issued by Government of Andhra Pradesh, dated 21-03-2014. Ex.P.18 is electricity bills, dated 05-08-2014, in the name of J.V.P.L.Radhika bearing

D.No.26-15-103/B. Ex.P.19 is house tax book stands in the name of J.Venkata Padma

Lakshmi Radhika, in respect of D.No.26-15-103B. Ex.P.20 is photostat copy of acknowledgment attested by R.W.1. Ex.P.21 is letter, dated 24-01-2015 confronted to the witness. Ex.P.22 is the receipt issued by the police.

15.After thorough scrutiny of the aforesaid documents, extract of Town Survey

Register relating to S.No.653/1-A, stands in the name of Jamisetty Sanyasi Rao, he executed a Will in favour of the petitioners and some others in respect of schedule property and he died on 14-11-1986. It is further established that the property Tax assessed in the name of petitioners and their family members, in respect of schedule premises and other premises, the petitioners and respondent filed suits against each other which are pending adjudication. So also, the petitioners and respondent exchanged notices prior to filing of the petition.

16.During the course of cross-examination, P.W.1 testifies his father acquired the

6

property through his father, he filed documents into Court to that effect, he had filed revenue records in respect of schedule property. The respondent gave suggestion to

P.W.1 that his father manipulated Municipal records by mutating his name in the capacity of Municipal Counselor. As per the suggestion the name of the Jamisetty

Sanyasi Rao mutated in Municipal records. It is also admitted fact that the electricity service connection originally stands in the name of Jamisetty Sanyasi Rao. Till today, the assessment of house tax and electricity connection stands in the name of Jamisetty

Sanyasi Rao and his family members.

17.The respondent further suggested P.W.1 that the respondent occupied the schedule premises twenty years back and residing with her own rights. Where as, the name of the respondent or her ancestors were not mutated in Municipal Records and the respondent did not get electricity connection in her name to show her continuous and un-interrupted possession for the period of twenty years. Even according to the respondent, Jamisetty Sanyasi Rao and ancestors of respondent occupied the

Government land and constructed houses. Where as, the respondent and her ancestors did not make any efforts to settle their possession, basing on relative records. On the other hand, one way or other Jamisetty Sanyasi Rao settled his possession, by mutating his name in Municipal records and paying property tax and electricity charges.

Admittedly, any Government Authority did not claim any rights over the schedule property, till today. More over, the Municipal Corporation recognized the right and possession of Jamisetty Sanyasi Rao and his relatives.

18.It is one of the contention of the respondent that the Government recognized her possession and issued voter identity card, ration card, residence certificate and caste certificate. It is a settled law, voter identity card, ration card, residence certificate and caste certificate does not confer the title or possession of a party. Levying the assessment of property tax and electricity bills confers the possession of the parties in dispute. The Government provided voter identity card, ration card, residence certificate, caste certificate and other certificates, to the residence of the premises irrespective of right, title and possession. Those documents does not confer the possession of the parties as owners of the premises in which they are residing.

7

19.The petitioners examined P.W.2 who is son of Jamisetty Sanyasi Rao, who fully supported the claim of the petitioners. During the course of cross-examination of P.W.2, the respondent suggested the extent covered under Survey No.653/1A which belongs to Isukathota Satyanarayana Swamy Temple and Government. Where as, the Town

Survey register does not contain the name of Isukathota Satyanarayana Swamy Temple or Government. On the other hand, Isukathota Satyanarayana Swamy Temple and

Government not claiming any right and title over the schedule property. Further, the respondent suggested to P.W.2 that prior to 1985 they have no rights on the schedule property and constructed houses as well as respondent. The suggestion itself reveals that after 1985, the petitioners' family and respondent occupied the property and constructed houses. Where as the respondent did not file any document evidencing her contention that she occupied the schedule property and constructed houses prior to 1985.

20.P.W.2 further testifies in cross-examination, that since 1987 they have been paying house tax to the property bearing D.No.26-15-103/1, 26-15-103/C, 26-15-104/A/1, 26-15-104/B. The ocular testimony of P.W.2 is supported by the documents exhibited by the petitioners. Admittedly, the respondent failed to file house tax pass book, house tax receipts and electricity bills, supporting their settled possession as of owners. The petitioners also examined P.Ws.3 to 5, who are said to be their previous tenants. P.Ws.3 to 5 fully supported the claim of the petitioners. P.W.6 is the cable operator also supported the claim of the petitioner. During the course of cross-examination of P.Ws.1 to 6, nothing has elicited to disbelieve their testimony and no infirmities and improbabilities could be seen in their evidence.

21.To substantiate the contention of the respondent, the respondent herself examined as R.W.1, re-iterated the counter averments and exhibited Exs.R.1 to R.6 documents. During the course of cross-exsamination, R.W.1 testifies she mentioned in the counter that the Jamisetty Sanyasi Rao executed a Will, as per the Will the property belongs to the petitioners and Jamisetty Sanyasi Raju. It shows, the respondent admitting the execution of Will by Jamisetty Sanyasi Rao. R.W.1 further testifies, she have not filed any documents into Court, evidencing her right and title over the

8

schedule property. She is not paying any tax to Greater Visakhapatnam Municipal

Corporation, Visakhapatnam, for the schedule premises. Therefore, R.W.1 herself admitted that she have not filed any document evidencing her right and title and she is not paying any tax to Greater Visakhapatnam Municipal Corporation, Visakhapatnam for the schedule premises. A close scrutiny of the evidence of R.W.1, R.W.1 admitted that the petitioners have been paying house tax and electricity charges, in respect of schedule premises, she have not filed any document evidencing her right and title, so also, the right and title of Government. R.W.1 further admitted that previously one

P.Bharathi i.e., P.W.3 was a tenant in the schedule property area, the P.W.6 is a cable

T.V.Operator. Therefore, the evidence of P.Ws.3 to 6 is trust worthy and reliable.

22.The respondent examined R.W.2, in support of his contention taken in the pleadings. Where as, even in chief-examination affidavit, R.W.2 testifies, he know Late

Sanyasi Rao occupied the Government land and constructed shop at Bapuji Konda, near

Poorna Market, Visakhapatnam, and respondent ancestors, constructed the building, shops and houses by occupying Government land, the petitioners have right, interest, possession and enjoyment of the same. This portion of evidence of R.W.2 is supporting the case of the petitioner that Late Jamisetty Sanyasi Rao constructed schedule premises and they have right and title over the schedule property. The evidence of

R.W.2 was not denied by the respondent. It is the contention of the respondent and the evidence of R.W.2 that Jamisetty Sanyasi Rao and respondent ancestors occupied

Government land and constructed buildings there on. Where as, the petitioners adduced evidence that Jamisetty Sanyasi Rao constructed houses and perfected his possession by mutating his name in the relevant records. Whether Jamisetty sanyasi

Rao has occupied Government land or devolved through his ancestors is not borne on record, the said aspect is not germane consideration to determine the nature of dispute. The question of title cannot be determined in Rent Control proceedings, the prima-facie title is enough. The pleadings and evidence of petitioners has been establishing the prima-facie title. Where as, the respondent failed to adduce evidence that their ancestor occupied the Government land and constructed house and the respondent has been residing in the schedule premises as of owner, in support of her

9

contention taken in the pleadings. The contention of the respondent is remained as contention.

23.Eventually, the respondent did not claim any right over the schedule property by adverse possession. The respondent is claiming right and title over the schedule property, as it is devolved to her through her ancestors. Where as, the respondent failed to adduce any positive evidence in support of her contention taken in the pleadings. On the other hand, the petitioners adduced ocular and documentary evidence in support of their contention taken in the pleadings. Thus, it is clear that the petitioners established their prima-facie right and title over the schedule property and the respondent failed to lead any rebuttal evidence in disputing the evidence of P.Ws.1 to 6 and Exs.P.1 to P.26. The contention of the respondent is not supported by any evidence. Where as the respondent failed to establish her possession as landlord.

Accordingly, these points answered in favour of the petitioners and against the respondent.

POINT NO.3:

24.It is one of the contention of the petitioners that the respondent committed default in payment of monthly rents from September 2013 onwards. Even according to the respondent, she did not pay any rent to the petitioners and claiming right and title as of landlady by denying the title of the petitioners.

25.Where as, the respondent failed to adduce evidence that her denial is bonafide.

Where the tenant denied the title of the landlord, enquiry has to be made as to whether denial is bonafide or not. If denial is bonafide, eviction petition has to be dismissed, otherwise eviction can be ordered without further enquiry in respect of other grounds and no order need be passed. Obviously, for that reason the respondent is the tenant of the schedule premises. The evidence of P.Ws.1 to 6 reveals, the respondent is the tenant of schedule premises, paid rents to the petitioners and later committed willful default. Under these facts and circumstances, there is no need to elaborate order in respect of default in payment of monthly rents. Accordingly, this point is answered.

POINT NO.4:

26.Analyzing the pleadings and evidence, the petitioners established that the denial

10

of title by the tenant is not bonafide and there is jural relationship as landlord and tenant between the petitioners and respondent. Where the tenant denied the title of the landlord, she failed to prove such denial is bonafide, it is a ground for eviction under Section 10(2)(vi) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control

Act. Therefore, the petitioners are entitled to evict the respondent from petition schedule premises.

POINT NO.5:

27.In the result, the petition is allowed with costs, directing the respondent to vacate the petition schedule premises and hand over the vacant possession to the petitioners within three months. Failing which the petitioners can evict the respondent, by way of executing this order, under due process of Law.

(A copy of schedule is herewith attached to this order)

Dictated to Typist, transcribed by her, corrected and pronounced

by me in open court on this the 7th day of May, 2015.

Rent Controller, Visakhapatnam.

Appendix of Evidence

For Petitioners: For Respondent:

PW.1: Jamisetty Laxmi Rama Krishna RW.1: Smt. Singarapu Satyavathi PW.2: Jamisetty Sanyasi Raju RW.2: K.Appa Rao PW.3: Ch.Bharathi PW.4: B.Satyavathi PW.5: V.Chandra Sekhar PW.6: B.Surya Lakshmana Kumar

Documents Marked

For Petitioners:

Ex.P.1/ Certified copy of extract of Town Survey Register, in T.S.No.653/1-A, dated 09-01-1990. Ex.P.2/ The certified copy of Will executed by Jamisetty Sanyasi Rao, in favour of petitioners and some others in respect of schedule property and some properties. Ex.P.3/ The attested copy of death certificate of Jamisetty Sanyasi Rao; Ex.P.4/ House tax pass book, issued by Greater Visakhapatnam Municipal Corporation, in the name of Jamisetty Lakshmi Rama Krishna, second petitioner in respect of D.NO.26-15-103/1; Ex.P.5/ The house tax pass book issued in the name of second petitioner in respect of 26-15-104/A-1;

11

Ex.P.6/ House tax pass book in the name of the petitioners in respect of 26-15-104/B; Ex.P.7/ House tax pass book issued in the name of petitioners in respect of D.No.26-15-103C; Ex.P.8/ House Plan issued by Commissioner, Greater Visakhapatnam Municipal Corporation, Visakhapatnam to second petitioner; Ex.P.9/ Served copy of plaint evincing the respondent and others filed suit for permanent injunction, against the petitioners and others; Ex.P.10/ Written statement in O.S.No.612/2013 filed by the first defendant; Ex.P.11/ Office copy of registered lawyer's notice issued to Commissioner, Greater Visakhapatnam Municipal Corporation, Visakhapatnam, dated 30-03-2014; Ex.P.12/ Neat copy of plaint in O.S.No.227/2014; Ex.P.13/ 5 positive photographs with C.D.,; Ex.P.14/ Office copy of Registered Lawyer's notice, dated 9-12-2013; Ex.P.15/ Office copy of registered lawyer's notice, dated 19-12-2013; Ex.P.16/ Tax pass book in the name of J.Venkata Padma Lakshmi Radhika bearing D.No.26-15-103/B; Ex.P.17/ Tax receipts issued by Government of Andhra Pradesh, dated 21-03-2014; Ex.P.18/ Electricity bills, dated 05-08-2014, in the name of J.V.P.L.Radhika bearing D.No.26-15-103/B; Ex.P.19/ House tax book stands in the name of J.Venkata Padma Lakshmi Radhika, in respect of D.No.26-15-103B; Ex.P.20/ Photostat copy of acknowledgment attested by respondent; Ex.P.21/ Letter, dated 24-01-2015 confronted to the witness; Ex.P.22/ The receipt issued by the police.

For Respondent:

Ex.R.1/ Compared copy of Ration card stands in the name of respondent. Ex.R.2/ Compared copy of Aadhar card stands in the name of respondent. Ex.R.3/ Rajiv aarogyasri Health card of respondent. Ex.R.4/ Positive photograph with C.D. Ex.R.5/ Positive photograph with C.D. Ex.R.6/ Stamped receipt.

Rent Controller, Visakhapatnam.

MEMORANDUM OF COSTS

PETITIONERS Rs. Ps. RESPONDENT

Stamp on Vakalat - 2 - 00 No cost memo filed. Stamp on petition - 10 –00 Process Fees - 80 - 00 Advocate Fees(claimed)-2,000 – 00 ---------------- Costs allowed - 2,092 – 00 ---------------- (Rupees Two Thousand and Seventy Two only)

Rent Controller, Visakhapatnam.

1

IN THE COURT OF THE RENT CONTROLLER : AT VISAKHAPATNAM.

PRESENT: Sri G.Ganga Raju, Rent Controller, Visakhapatnam.

Thursday the Seventh day of May, 2015

R.C.C.NO.9/2014

Between:

1. Smt. Jamisetty Appala Konda, W/o. Late J.Sanyasi Rao, Hindu, aged 58 years, r/at.D.No.18-74-36/A, Salipeta, Visakhapatnam.

2. Jamisetty Lakshmi Rama Krishna, S/o. Late Jamisetty Sanyasi Rao, aged 31 years, r/at.D.No.18-74-36/A, Salipeta, Visakhapatnam.

…... Petitioners

And:

Kagana Simhachalam, S/o. Appalaswamy, Hindu, aged 40 years, r/at.D.No.26-15-104A/1, Near Poorna Market, Visakhapatnam-530 001.

...…Respondent

This petition is coming before me on 04-05-2015 in the presence of S/Sri R.V.K.Naidu, B.Ramesh, A.Varahala Rao, Advocates for Petitioner and Sri I.Rama Krishna, Advocate for respondent and having stood over for consideration till this day, the Court delivered the following:

O R D E R

This is the Petition filed under Section 10(2)(i)(vi) and Section 10(1)(a) of

Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, for eviction of the respondent from petition schedule premises with costs.

2.A conspectus of petitioners' claim is as follows:

They are the absolute owners of the schedule property, originally the schedule property is ancestral property of Jamisetty Sanyasi Rao, the said Sanyasi Rao devolved the property by virtue of Hindu Succession after demise of his father, thus the said

Sanyasi Rao became the absolute owner of the schedule property, subsequently he constructed several tiled houses, asbestos houses and R.C.C.Building in the year 1970, subsequently he constructed several R.C.C.Buildings and shops, with plan approval in the year 1975, the said Jamisetty Sanyasi Rao executed Registered Will, in favour of the petitioners and other family members on 20-09-1986, the said Sanyasi Rao expired on 14-11-1986, after his demise the petitioners and other legal heirs became absolute

2

owners of their respective properties by virtue of Will executed by the said Sanyasi Rao and subsequently property tax was assessed in the petitioners name and the petitioners are paying property tax to the Municipal Corporation and electricity bills, the first petitioner let out the schedule premises to the respondent on an oral agreement on a monthly rent of Rs.600/- in the month of May 2002, the rent has been increased from time to time and the present rent is Rs.1,200/-, the respondent paid monthly rents regularly without any default till July 2013, thereafter committed default from August 2013, on repeated demands the respondent failed to pay monthly rent and filed suit for injunction. Hence this petition.

3. The respondent filed counter contending inter-alia that he is not the tenant to the petitioners, his house and schedule premises are quite different, his house is an ancestral property, extent only 20 square yards, which is occupied by his ancestors and constructed the same 25 years ago. Hence, he is the absolute owner of small house, he have possession and enjoyment of the house, since their ancestors. The Government of

India and Government of Andhra Pradesh issued house hold card, voter identity card, residence certificate and other certificates in their favour and for his family members and the name of the electricity meter is allotted in the name of said Sanyasi Rao. There is no relationship between the petitioners and himself as landlords and tenant. Hence the petition is liable to be dismissed.

4.During the course of enquiry, on behalf of petitioner, P.Ws.1 to 6 were examined and Exs.P.1 to P.22 were marked. On behalf of respondent, R.Ws.1 and 2 were examined and Exs.R.1 to R.7 were marked.

5. Heard arguments on either side besides their written arguments.

6. Now the points arises for consideration are:-

1. Whether the denial of title of petitioners by the respondent is bonafide?

2. Whether there is any Jural relationship as landlord and tenant between petitioners and respondent?

3. Whether the respondent committed willful default in payment of monthly rents to the petitioners?

4. Whether the petitioners are entitled to evict the respondent from petition schedule premises?

5. To what relief?

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POINT Nos.1 & 2:

7.Point Nos.1 and 2 are dealt together to avoid repetition.

It is an undisputed fact that the first petitioner is the wife of Late Jamisetty

Sanyasi Rao and second petitioner is their son, the schedule property covered under

Survey No.653/1A, Block No.20, Maharanipeta Ward, Visakhapatnam.

8.According to the petitioners, the schedule property is ancestral property of Late

Jamisetty Sanyasi Rao, who is the husband of first petitioner and father of second petitioner, by virtue of Hindu Succession, after demise of his father, the said Late

Jamisetty Sanyasi Rao became absolute owner of the schedule property, subsequently the said Sanyasi Rao constructed several tiled houses, asbestos and R.C.C.Buildings in the years 1970 and 1975 with plan approval of Municipality, Visakhapatnam, during his lifetime, he executed a Will, dated 20-09-1986, in favour of the petitioners and also in favour of Late Jamisetty Sanyasi Rao, Shyam Sundar, Sarat Sundar and Venusri and others. The said Late Jamisetty Sanyasi Rao expired on 14-11-1986, leaving behind the petitioners and legal heirs, after demise of said Late Jamisetty Sanyasi Rao, the petitioners and other legal heirs became absolute owners of their respective properties by virtue of Will executed by said Late Jamisetty Sanyasi Rao and subsequently the property tax was assessed in the name of petitioners, they are paying electricity charges to the schedule premises.

9.It is also contention of the petitioners that the first petitioner let out the premises to the respondent in the month of May 2002, thus the respondent is a tenant of petitioners. Per contra, the respondent categorically denied the title of the petitioners and existing Jural relationship as landlords and tenant, and claiming right as of landlord of the schedule premises. According to the respondent, his ancestors occupied an extent of 20 Sq. yards and constructed house at about 25 years back, hence he is the absolute owner of the schedule property, the Government of India and Government of

Andhra Pradesh recognized his possession and issued house hold card, voter identity card, residential certificate and other certificates in his favour and in favour of his family members.

10.The pleadings and evidence are clinchingly clear that the petitioners as well as

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respondent claiming right and title over the schedule property basing on their possession and documents. As per the contention of the respondent, originally the schedule property belongs to Government, his ancestors and Late Jamisetty Sanyasi

Rao occupied the same, and constructed house there on, therefore, the schedule property and his property are different.

11.When the tenant categorically denied the right, title and possession of the landlord, initial burden lies on the landlord to establish his prima-facie right and title over the schedule property to determine the nature of dispute under Rent Control Act.

The complicated question of title cannot be determined under Rent Control Act, but it is looked into the prima-facie title of the parties in proceedings to arrive conclusion.

12.Section 10(i) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, provides “ A tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 13:

Provided that where the tenant, denies the title of the landlord, the Controller shall decide whether the denial is bonafide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in the Civil Court. If the landlord establishes that the denial of title by the tenant is not bonafide, it is a ground for eviction.”

13.Now the burden lies on the petitioners, to establish their prima-facie title of the schedule property and the denial of their title by the respondent is not bonafide.

14.To substantiate the contention of the petitioners, the second petitioner examined as P.W.1, re-iterated the petition averments and exhibited Exs.P.1 to P.22 documents in his evidence. Ex.P.1 is certified copy of extract of Town Survey Register, in

T.S.No.653/1-A, dated 09-01-1990. The said extract of Town Survey Register stands in the name of Jamisetty Sanyasi Rao, who is the husband of the first petitioner and father of second petitioner, in respect of T.S.No.653/1-A, i.e., the petition schedule property covered. Ex.P.2 is the certified copy of Will executed by Jamisetty Sanyasi

Rao, in favour of petitioners and some others in respect of schedule property and some properties. Ex.P.3 is the attested copy of death certificate of Jamisetty Sanyasi Rao.

Ex.P.4 is house tax pass book, issued by Greater Visakhapatnam Municipal Corporation,

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Visakhapatnam, in the name of Jamisetty Lakshmi Rama Krishna, second petitioner in respect of D.NO.26-15-103/1. Ex.P.5 is the house tax pass book issued in the name of second petitioner in respect of D.No.26-15-104/A-1. Ex.P.6 is house tax pass book in the name of the petitioners in respect of D.No.26-15-104/B. Ex.P.7 is house tax pass book issued in the name of petitioners in respect of D.No.26-15-103C. Ex.P.8 is house

Plan issued by Commissioner, Greater Visakhapatnam Municipal Corporation,

Visakhapatnam to second petitioner. Ex.P.9 is served copy of plaint evincing the respondent and others filed suit for permanent injunction, against the petitioners and others. Ex.P.10 is written statement in O.S.No.612/2013 filed by the first defendant.

Ex.P.11 is office copy of registered lawyer's notice issued to Commissioner, Greater

Visakhapatnam Municipal Corporation, Visakhapatnam, dated 30-03-2014. Ex.P.12 is neat copy of plaint in O.S.No.227/2014. Ex.P.13 is 5 positive photographs with C.D.

Ex.P.14 is office copy of Registered Lawyer's notice, dated 9-12-2013. Ex.P.15 is office copy of registered lawyer's notice, dated 19-12-2013. Ex.P.16 is Tax pass book in the name of J.Venkata Padma Lakshmi Radhika bearing D.No.26-15-103/B. Ex.P.17 is Tax receipts issued by Government of Andhra Pradesh, dated 21-03-2014. Ex.P.18 is electricity bills, dated 05-08-2014, in the name of J.V.P.L.Radhika bearing

D.No.26-15-103/B. Ex.P.19 is house tax book stands in the name of J.Venkata Padma

Lakshmi Radhika, in respect of D.No.26-15-103B. Ex.P.20 is photostat copy of acknowledgment attested by R.W.1. Ex.P.21 is letter, dated 24-01-2015 confronted to the witness. Ex.P.22 is the receipt issued by the police.

15.After thorough scrutiny of the aforesaid documents, extract of Town Survey

Register relating to S.No.653/1-A, stands in the name of Jamisetty Sanyasi Rao, he executed a Will in favour of the petitioners and some others in respect of schedule property and he died on 14-11-1986. It is further established that the property Tax assessed in the name of petitioners and their family members, in respect of schedule premises and other premises, the petitioners and respondent filed suits against each other which are pending adjudication. So also, the petitioners and respondent exchanged notices prior to filing of the petition.

16.During the course of cross-examination, P.W.1 testifies his father acquired the

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property through his father, he filed documents into Court to that effect, he had filed revenue records in respect of schedule property. The respondent gave suggestion to

P.W.1 that his father manipulated Municipal records by mutating his name in the capacity of Municipal Counselor. As per the suggestion the name of the Jamisetty

Sanyasi Rao mutated in Municipal records. It is also admitted fact that the electricity service connection originally stands in the name of Jamisetty Sanyasi Rao. Till today, the assessment of house tax and electricity connection stands in the name of Jamisetty

Sanyasi Rao and his family members.

17.The respondent further suggested P.W.1 that the respondent occupied the schedule premises twenty years back and residing with his own rights. Where as, the name of the respondent or his ancestors were not mutated in Municipal Records and the respondent did not get electricity connection in his name to show his continuous and un-interrupted possession for the period of twenty years. Even according to the respondent, Jamisetty Sanyasi Rao and ancestors of respondent occupied the

Government land and constructed houses. Where as, the respondent and his ancestors did not make any efforts to settle their possession, basing on relative records. On the other hand, one way or other Jamisetty Sanyasi Rao settled his possession, by mutating his name in Municipal records and paying property tax and electricity charges.

Admittedly, any Government Authority did not claim any rights over the schedule property, till today. More over, the Municipal Corporation recognized the right and possession of Jamisetty Sanyasi Rao and his relatives.

18.It is one of the contention of the respondent that the Government recognized his possession and issued voter identity card, ration card, residence certificate and caste certificate. It is a settled law, voter identity card, ration card, residence certificate and caste certificate does not confer the title or possession of a party. Levying the assessment of property tax and electricity bills confers the possession of the parties in dispute. The Government provided voter identity card, ration card, residence certificate, caste certificate and other certificates, to the residence of the premises irrespective of right, title and possession. Those documents does not confer the possession of the parties as owners of the premises in which they are residing.

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19.The petitioners examined P.W.2 who is son of Jamisetty Sanyasi Rao, who fully supported the claim of the petitioners. During the course of cross-examination of P.W.2, the respondent suggested the extent covered under Survey No.653/1A which belongs to Isukathota Satyanarayana Swamy Temple and Government. Where as, the Town

Survey register does not contain the name of Isukathota Satyanarayana Swamy Temple or Government. On the other hand, Isukathota Satyanarayana Swamy Temple and

Government not claiming any right and title over the schedule property. Further, the respondent suggested to P.W.2 that prior to 1985 they have no rights on the schedule property and constructed houses as well as respondent. The suggestion itself reveals that after 1985, the petitioners' family and respondent occupied the property and constructed houses. Where as the respondent did not file any document evidencing his contention that he occupied the schedule property and constructed houses prior to 1985.

20.P.W.2 further testifies in cross-examination, that since 1987 they have been paying house tax to the property bearing D.No.26-15-103/1, 26-15-103/C, 26-15-104/A/1, 26-15-104/B. The ocular testimony of P.W.2 is supported by the documents exhibited by the petitioners. Admittedly, the respondent failed to file house tax pass book, house tax receipts and electricity bills, supporting their settled possession as of owners. The petitioners also examined P.Ws.3 to 5, who are said to be their previous tenants. P.Ws.3 to 5 fully supported the claim of the petitioners. P.W.6 is the cable operator also supported the claim of the petitioner. During the course of cross-examination of P.Ws.1 to 6, nothing has elicited to disbelieve their testimony and no infirmities and improbabilities could be seen in their evidence.

21.To substantiate the contention of the respondent, the respondent himself examined as R.W.1, re-iterated the counter averments and exhibited Exs.R.1 to R.7 documents. During the course of cross-exsamination, R.W.1 testifies he mentioned in the counter that the Jamisetty Sanyasi Rao executed a Will, as per the Will the property belongs to the petitioners and Jamisetty Sanyasi Raju. It shows, the respondent admitting the execution of Will by Jamisetty Sanyasi Rao. R.W.1 further testifies, he have not filed any documents into Court, evidencing his right and title over the

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schedule property. He is not paying any tax to Greater Visakhapatnam Municipal

Corporation, Visakhapatnam, for the schedule premises. Therefore, R.W.1 himself admitted that he have not filed any document evidencing his right and title and he is not paying any tax to Greater Visakhapatnam Municipal Corporation, Visakhapatnam for the schedule premises. A close scrutiny of the evidence of R.W.1, R.W.1 admitted that the petitioners have been paying house tax and electricity charges, in respect of schedule premises, he have not filed any document evidencing his right and title, so also, the right and title of Government. R.W.1 further admitted that previously one

P.Bharathi i.e., P.W.3 was a tenant in the schedule property area, the P.W.6 is a cable

T.V.Operator. Therefore, the evidence of P.Ws.3 to 6 is trust worthy and reliable.

22.The respondent examined R.W.2, in support of his contention taken in the pleadings. Where as, even in chief-examination affidavit, R.W.2 testifies, he know Late

Sanyasi Rao occupied the Government land and constructed shop at Bapuji Konda, near

Poorna Market, Visakhapatnam, and respondent ancestors, constructed the building, shops and houses by occupying Government land, the petitioners have right, interest, possession and enjoyment of the same. This portion of evidence of R.W.2 is supporting the case of the petitioner that Late Jamisetty Sanyasi Rao constructed schedule premises and they have right and title over the schedule property. The evidence of

R.W.2 was not denied by the respondent. It is the contention of the respondent and the evidence of R.W.2 that Jamisetty Sanyasi Rao and respondent ancestors occupied

Government land and constructed buildings there on. Where as, the petitioners adduced evidence that Jamisetty Sanyasi Rao constructed houses and perfected his possession by mutating his name in the relevant records. Whether Jamisetty sanyasi

Rao has occupied Government land or devolved through his ancestors is not borne on record, the said aspect is not germane consideration to determine the nature of dispute. The question of title cannot be determined in Rent Control proceedings, the prima-facie title is enough. The pleadings and evidence of petitioners has been establishing the prima-facie title. Where as, the respondent failed to adduce evidence that their ancestor occupied the Government land and constructed house and the respondent has been residing in the schedule premises as of owner, in support of his

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contention taken in the pleadings. The contention of the respondent is remained as contention.

23.Eventually, the respondent did not claim any right over the schedule property by adverse possession. The respondent is claiming right and title over the schedule property, as it is devolved to him through his ancestors. Where as, the respondent failed to adduce any positive evidence in support of his contention taken in the pleadings. On the other hand, the petitioners adduced ocular and documentary evidence in support of their contention taken in the pleadings. Thus, it is clear that the petitioners established their prima-facie right and title over the schedule property and the respondent failed to lead any rebuttal evidence in disputing the evidence of P.Ws.1 to 6 and Exs.P.1 to P.26. The contention of the respondent is not supported by any evidence. Where as the respondent failed to establish his possession as landlord.

Accordingly, these points answered in favour of the petitioners and against the respondent.

POINT NO.3:

24.It is one of the contention of the petitioners that the respondent committed default in payment of monthly rents from August 2013 onwards. Even according to the respondent, he did not pay any rent to the petitioners and claiming right and title as of landlord by denying the title of the petitioners. Where as, the respondent failed to adduce evidence that his denial is bonafide.

25.Where the tenant denied the title of the landlord, enquiry has to be made as to whether denial is bonafide or not. If denial is bonafide, eviction petition has to be dismissed, otherwise eviction can be ordered without further enquiry in respect of other grounds and no order need be passed. Obviously, for that reason the respondent is the tenant of the schedule premises. The evidence of P.Ws.1 to 6 reveals, the respondent is the tenant of schedule premises, paid rents to the petitioners and later committed willful default. Under these facts and circumstances, there is no need to elaborate order in respect of default in payment of monthly rents. Accordingly, this point is answered.

POINT NO.4:

26.Analyzing the pleadings and evidence, the petitioners established that the denial

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of title by the tenant is not bonafide and there is jural relationship as landlord and tenant between the petitioners and respondent. Where the tenant denied the title of the landlord, he failed to prove such denial is bonafide, it is a ground for eviction under

Section 10(2)(vi) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act.

Therefore, the petitioners are entitled to evict the respondent from petition schedule premises.

POINT NO.5:

27.In the result, the petition is allowed with costs, directing the respondent to vacate the petition schedule premises and hand over the vacant possession to the petitioners within three months. Failing which the petitioners can evict the respondent, by way of executing this order, under due process of Law.

(A copy of schedule is herewith attached to this order)

Dictated to Typist, transcribed by her, corrected and pronounced

by me in open court on this the 7th day of May, 2015.

Rent Controller, Visakhapatnam.

Appendix of Evidence

For Petitioners: For Respondent:

PW.1: Jamisetty Laxmi Rama Krishna RW.1: K.Simhachalam PW.2: Jamisetty Sanyasi Raju RW.2: K.Appa Rao PW.3: Ch.Bharathi PW.4: B.Satyavathi PW.5: V.Chandra Sekhar PW.6: B.Surya Lakshmana Kumar

Documents Marked

For Petitioners:

Ex.P.1/ Certified copy of extract of Town Survey Register, in T.S.No.653/1-A, dated 09-01-1990. Ex.P.2/ The certified copy of Will executed by Jamisetty Sanyasi Rao, in favour of petitioners and some others in respect of schedule property and some properties. Ex.P.3/ The attested copy of death certificate of Jamisetty Sanyasi Rao; Ex.P.4/ House tax pass book, issued by Greater Visakhapatnam Municipal Corporation, in the name of Jamisetty Lakshmi Rama Krishna, second petitioner in respect of D.NO.26-15-103/1; Ex.P.5/ The house tax pass book issued in the name of second petitioner in respect of 26-15-104/A-1;

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Ex.P.6/ House tax pass book in the name of the petitioners in respect of 26-15-104/B; Ex.P.7/ House tax pass book issued in the name of petitioners in respect of D.No.26-15-103C; Ex.P.8/ House Plan issued by Commissioner, Greater Visakhapatnam Municipal Corporation, Visakhapatnam to second petitioner; Ex.P.9/ Served copy of plaint evincing the respondent and others filed suit for permanent injunction, against the petitioners and others; Ex.P.10/ Written statement in O.S.No.612/2013 filed by the first defendant; Ex.P.11/ Office copy of registered lawyer's notice issued to Commissioner, Greater Visakhapatnam Municipal Corporation, Visakhapatnam, dated 30-03-2014; Ex.P.12/ Neat copy of plaint in O.S.No.227/2014; Ex.P.13/ 5 positive photographs with C.D.,; Ex.P.14/ Office copy of Registered Lawyer's notice, dated 9-12-2013; Ex.P.15/ Office copy of registered lawyer's notice, dated 19-12-2013; Ex.P.16/ Tax pass book in the name of J.Venkata Padma Lakshmi Radhika bearing D.No.26-15-103/B; Ex.P.17/ Tax receipts issued by Government of Andhra Pradesh, dated 21-03-2014; Ex.P.18/ Electricity bills, dated 05-08-2014, in the name of J.V.P.L.Radhika bearing D.No.26-15-103/B; Ex.P.19/ House tax book stands in the name of J.Venkata Padma Lakshmi Radhika, in respect of D.No.26-15-103B; Ex.P.20/ Photostat copy of acknowledgment attested by respondent; Ex.P.21/ Letter, dated 24-01-2015 confronted to the witness; Ex.P.22/ The receipt issued by the police.

For Respondent:

Ex.R.1/ House hold card of respondent; Ex.R.2/ Aadhar Card of respondent; Ex.R.3/ Caste certificate of respondent; Ex.R.4/ Residence Certificate of respondent; Ex.R.5/ One photograph with C.D; Ex.R.6/ Income Certificate of respondent; Ex.R.7/ Residence Certificate of respondent;

Rent Controller, Visakhapatnam.

MEMORANDUM OF COSTS

PETITIONERS Rs. Ps. RESPONDENT

Stamp on Vakalat - 2 - 00 No cost memo filed. Stamp on petition - 10 –00 Process Fees - 80 - 00 Advocate Fees(claimed)-2,000 – 00 ---------------- Costs allowed - 2,092 – 00 ---------------- (Rupees Two Thousand and Seventy Two only)

Rent Controller, Visakhapatnam.