1
IN THE COURT OF THE VIII ADDL. DISTRICT AND SESSIONS JUDGE,
CHITTOOR.
Present : Sri A.Karna Kumar,
VIII Additional District & Sessions Judge,
Monday, the 9th (Ninth) day of April, 2018
Appeal Suit Nos.65 and 93 of 2015
AS.No.65/2015:
Between:
1.B.Siddarami Reddy,
2.B.Raja Reddy
3.B.Venkata Reddy
4.B.Narasimha Reddy
5.B.Narayana Reddy
6.B.Ramana Reddy
7.B.Sreeramulu Reddy
8.B.Bhaskar Reddy
9.B.Purushotham Reddy
10.B.Yasodamma … Appellants/Defendants And:
1. B.Rukmanamma
2. B.Surendra Reddy …Respondents/Plaintiffs
On Appeal against the Decree and common Judgment dated 25.03.2015 passed by the Junior Civil Judge, Pakala made in:
OS.No.62 of 2009
Between:
1. B.Rukmanamma
2. B.Surendra Reddy … Plaintiffs And:
1.B.Siddarami Reddy,
2.B.Raja Reddy
3.B.Venkata Reddy
4.B.Narasimha Reddy
5.B.Narayana Reddy
6.B.Ramana Reddy
7.B.Sreeramulu Reddy
8.B.Bhaskar Reddy
9.B.Purushotham Reddy
10.B.Yasodamma …Defendants
AS.No.65/2015:
Between:
1. B.Rukmanamma
2. B.Surendra Reddy … Appellants/Plaintiffs 2
And:
1.B.Siddarami Reddy,
2.B.Raja Reddy
3.B.Venkata Reddy
4.B.Narasimha Reddy
5.B.Narayana Reddy
6.B.Ramana Reddy
7.B.Sreeramulu Reddy
8.B.Bhaskar Reddy
9.B.Purushotham Reddy
10.B.Yasodamma …Respondents/Defendants
On Appeal against the Decree and common Judgment dated 25.03.2015 passed by the Junior Civil Judge, Pakala made in:
OS.No.62 of 2009
Between:
1. B.Rukmanamma
2. B.Surendra Reddy … Plaintiffs And:
1.B.Siddarami Reddy,
2.B.Raja Reddy
3.B.Venkata Reddy
4.B.Narasimha Reddy
5.B.Narayana Reddy
6.B.Ramana Reddy
7.B.Sreeramulu Reddy
8.B.Bhaskar Reddy
9.B.Purushotham Reddy
10.B.Yasodamma …Defendants
These two Appeal Suits are coming on for final hearing before me on 27.02.2018 and upon perusing the material papers on record and grounds of appeal and upon hearing the arguments of Sri T.K.Sundara Kumar, Advocate for appellants in AS.65/2015 and respondents in AS.93/2015 and of Sri C.Munaswamy, Advocate for appellants in AS.No.93/2015 and Sri G.Sambasivudu, Advocate for respondents 1 to 7 & 10 in AS.No.65/2015 and the respondents 8 and 9 remained absent in AS.No.65/2015 and the matters having stood over for consideration till this day, this Court delivered the following:
COMMON JUDGMENT
Aggrieved by the decree and judgment in OS.No.62/2009, the appellants, who are plaintiffs in the suit preferred the appeal in
AS.No.65/2015 to set aside the decree and judgment dated 25.03.2015 in
respect of item No.1 of plaint ‘A’ schedule property. The respondents are the defendants in the said suit.
3
The appellants, who are defendants in the above said suit preferred the appeal in AS.No.93/2015 to set aside the decree and judgment dated 25.03.2015 and to dismiss entire suit.
3. For the sake of convenience and for better appreciation of the oral and documentary evidence adduced before the trial court, the parties in the appeal hereinafter will be referred as arrayed in the suit OS.No.62/2009.
4. Since, the appeals in AS.Nos.65/2015 and 93/2015 arose against decree and judgment passed by the Junior Civil Judge, Pakala in
OS.No.62/2009 dated 25.03.2015, this court decided to dispose of both the
appeals with common judgment to avoid reputation of facts, evidence and reasons for the decision.
5. The brief averments of the plaint filed by the plaintiffs are that
The 1st plaintiff is the mother of second plaintiff. Papi Reddy is the husband of 1st plaintiff and father of 2nd plaintiff. The husband of 1st plaintiff viz., Papi Reddy, and his brothers viz Venkataswamy Reddy,
B.Konda Reddy and B.Thimma Reddy were divided their joint family and ancestral properties among them about 28 years back by oral partition and all four brothers have been enjoying their respective share of property independently without any interruption. Defendants 1 to 3 and one
B.Ramachandra Reddy are the son of Venkataswamy Reddy. Defendants 4 to 9 are the son of Konda Reddy and 10th defendant is the wife of Konda
Reddy. One B.Chandra Reddy, B.Ganapathi Reddy, B.Chenga Reddy and
B.Bhaskar Reddy are the sons of B.Thimma Reddy. There arose some misunderstandings among the branches of four brothers in or around 2000.
Thereafter, the legal heirs of Konda Reddy viz., defendants 4 to 10 as well are the legal heirs of Venkataswamy Reddy and legal heirs of Thimma Reddy executed a family partition relinquishment in favour of 1st plaintiff on 03.06.2000 and it is an acknowledgment of past partition in the presence of village elders and admitting the partition which was already held between the four brothers and the said acknowledgment of partition was duly signed by all the four branches of persons by confirming the right and title of the plaintiff in respect of their share of properties. All the defendants and other persons of 4 branches have clearly identified the property of the plaintiff in the form of their nick names just like “Chinthamanukada Chenu,
Chinnakuntakada Chenu etc.,” owned by the plaintiffs in pursuance of the oral partition. Though the document dated 03.06.2000 is styled as ‘Pali 4
Bagapu Hakku Vidudala Panchayati Theermanam’. But, it will clearly show that it is a document of confirming earlier partition and nothing more. Thus the right of the plaintiffs in respect of plaint ‘A’ schedule property is duly recognized by other sharers. The sharers further undertook that they will not interfere with the possession of the plaintiffs in respect of plaint ‘A’ schedule property at the same time they further agreed that the plaintiffs are entitled to obtain pattadar passbook and title deed in the name of 1st plaintiff.
The plaintiffs have been enjoying the plaint ‘A’ schedule property for 20 years exclusively without any interference from other sharers. In the same manner, the other sharers have been enjoying the rest of plaint ‘B’ schedule property separately without any connection from one and another. Orally in the above said Khararunama dated 03.06.2000, the property was identified in terms of each plot with its nick names and within the specific extent and survey numbers shown therein. After the death of Papi Reddy, 1st plaintiff was managing the property and she is an illiterate and innocent lady and she could not get it mutated her name in the revenue records and she could not obtain the pattadar passbook and title deed in respect of plaint ‘A’ schedule property. After attaining majority as well as after knowing about the good and bad, the 2nd plaintiff has been trying to obtain pattadar passbook and title deed in respect of plaint ‘A’ schedule property. But, every time, some of the defendants have been giving obstruction from issuing of passbook and title deed. The heirs of Thimma Reddy are not giving any obstruction to the plaintiffs in this regard. But, rest of the heirs of three brothers viz., defendants 1 to 10 are giving so much of trouble in getting the revenue records in the name of plaintiffs. Hence, the plaintiffs issued legal notice
dated 03.11.2008 demanding all the defendants and other persons not to
interfere with the plaintiffs from obtaining passbook and tile deeds in respect of plaint ‘A’ schedule property. Some of the defendants received the notices and some of them evaded to receive the same. The defendants 2, 4 to 6 and 10 gave reply dated 15.11.2008 admitting the earlier partition, but denying their obstruction. At the same time, the reply notice is not clear whether the defendants have expressed their opinion about the right and title and possession of the plaintiffs in respect of plaint schedule property. One way they claimed the notice schedule property as if their own property and another way they expressed their opinion stating that they have no objection to survey the land and mutate the names of the plaintiffs in the revenue 5 records. But, still they are obstructing the plaintiffs from obtaining the passbook and title deed from the revenue authorities.
The plaintiffs raised mango garden in items 1 to 3 of plaint ‘A’ schedule property and raising wet crops in items 4 to 8. On 15.01.2009 all the defendants came in a mob and threatened the plaintiffs to dispossess from the plaint ‘A’ schedule property. With the help of village elders, the plaintiffs could able to resist their highhanded acts temporarily. Hence, the plaintiffs filed the suit for permanent injunction.
6. On the other hand, the 4th defendant filed separate written statement, which was adopted by defendants 7 and 9. The 6th defendant filed written statement, which was adopted by defendants 1 to 3, 5, 8 to 10.
7. The brief averments of the written statement filed by 4th defendant, which was adopted by defendants 7 and 9 are that
The 4th defendant denied all the averments of the plaint except that there is no dispute in the relationship between the plaintiffs and defendants.
The property more fully described in ‘B’ schedule property is the ancestral property of joint family of four brothers by names Venkataswamy Reddy,
Konda Reddy, Thimma Reddy and Papi Reddy. The same wa divided among four brothers about 28 years back by way of oral partition and all the four branches have been enjoying their respective share of property independently without any interruption whatsoever from one and another. Without the description of plaint ‘B’ schedule property in the suit, plaintiffs have no locus-standi to claim the relief against the defendants. The joint family properties were divided in the year 1966 among above four brothers and since then, the said four brothers and their legal heirs are enjoying the same by getting separate possession. The said facts clearly disclosed in the records available in the grama panchayat voters list, revenue records and ration cards issued by the concerned authority with regard to the respective parties. The plaintiff issued legal notice dated 03.11.2008 to the defendants and also one B.Ramachandra, son of B.Venkataswamy Reddy and sons of
Thimma Reddy i.e., Ganapathi Reddy, Chenga Reddy, Bhaskar Reddy and
Krishnamma, daughter-in-law of Thimma Reddy. On 15.11.2008, the defendants 2, 5, 6 and 10 issued suitable reply notice to the plaintiffs.
The alleged document dated 03.06.2000 was created by the plaintiff and filed the same in order to get false claim beyond their share of property and also to give false legal notice. The family partition relinquishment deed 6
dated 03.06.2000 is purely created by the plaintiffs for the purpose of filing
the suit. The alleged acknowledgment in the said deed by Venkataswamy is not binding the suit. The witnesses’ signatures are collected by the plaintiffs in this document while giving wrong information to them. As already stated, by basing created paper document which is not enforceable and valid according to law. The plaintiffs have not approached at any time with
Tahsildar of Pulicherla Mandal for obtaining pattadar passbooks and the defendants never objected in giving pattadar passbook and title deed to the plaintiffs in respect of their share. In order to prove that the plaintiffs created a false allegation against the defendants, the defendants filing endorsement dated 25.09.2009 passed by the Tahsildar, Pulicherla Mandal.
The defendants, 4, 7 and 9 have not raised any objection in respect of giving pattadar passbook etc., in favour of plaintiffs. It is sufficient to prove that the plaintiffs created the allegations only to do mischievous to defendants and to get wrongful share from co-sharers. The land claiming by the plaintiffs in ‘A’ schedule in serial NO.1 in survey No.237/1 are not their share and the land pertains to the share of defendants 4 to 10. The plaintiffs filed false plaint to illegally occupy the property of the other legitimate shares of properties and to create troubles to the defendants and to degrade the defendants’ reputation in society.
The plaintiffs claiming the property excessively which are not in their possession and enjoyment and their share and also they have no any righter over the same to claim beyond their right. The plaintiffs are one way challenging the partition and also equally enjoying the shares and rights of the defendants over the joint family properties beyond their legitimate share by claiming an additional share for which, they have no right and in another way they are seeking permanent injunction on others property. There is no proof for cause of action because the alleged cause of action dated 15.01.2009 and whereas the plaint is filed on 05.03.2009 seeking permanent injunction is shows that the plaintiffs malefide intention in filing the suit.
In the year 1986, March, 30th, the agricultural electricity service connection was released by APSPDCL under service connection No.492 in favour of B.Venkataswamy Reddy of Balireddigaripalle, Pulicherla Mandal.
There is no other service connection in survey No.74/2. Hence, the plaintiffs have no right to claim the electricity service connection except the legal heirs of B.Venkataswamy Reddy.
7
8. The brief averments of the written statement filed by 6th defendant, which was adopted by defendants 1 to 3, 5, 8 to 10 are that
The defendants denied all averments of the plaint except that, the plaintiffs are on way challenging the partition and also the equal enjoyment shares and right of the defendants over the joint family properties beyond his legitimate share by claiming additional share for which, they have no right and in another way they are seeking permanent injunction over the others property. There is no proof of cause of action because the alleged cause of action dated 15.01.2009 whereas the plaint is filed on 05.03.2009 seeking permanent injunction. It shows the malafide intention of the plaintiffs in filing the suit. There is no right to the plaintiffs to seek the relief of permanent injunction against the defendants. In the year 1986 March, 30th, the agricultural electricity service connection was released by the APSEB under service connection No.492 in favour of B.Venkataswamy Reddy of
Balireddigaripalle who is one of the brother among the above said 4 brothers.
In order to prove that the alleged Kararunama dated 03.06.2000 is created one, this defendant filed the certificate issued by the Assistant Engineer,
Operation, APSPDCL, Kallur.
9. During the course of trial, the plaintiff filed a petition to amend the plaint by inserting plaint ‘B’ schedule property and the same was allowed on 04.08.2012 by permitting the plaintiffs to amend the plaint by inserting ‘B’ schedule property.
10. Thereafter, 4th defendant filed additional written statement denying all averments except that there is no revenue records filed to show the ownership of the plaintiffs over ‘B’ schedule property and also there is no boundaries and the correct extent furnished in the survey numbers of ‘B’ schedule property. The plaintiffs have already mentioned the survey numbers 237/1, 70/3, 73/6, 74/2, 60/8 and 61/3 in the suit. Again, the plaintiffs mentioned the same property as ‘B’ schedule to make somewhat confusion and to harass the defendants in order to delay the trial of the matter even though the suit is filed not for partition and the suit is filed only seeking for permanent injunction only. The plaintiffs have no right over the plaint ‘B’ schedule property. In order to disturb the right of the defendants over the plaint schedule property, the plaintiffs filed the false suit. Most of ‘B’ schedule properties are stand in the name of 10th defendant and the same is in possession and enjoyment of her. In evidence thereof, pattadar passbook issued by the Mandal Revenue Officer, Pulicherla in the name of 8 10th defendant and also 1-B Register extract and No.2 adangal issued by the
Village Revenue Officer, 105 Bandaruvaripalli, Pulicherla Mandal are filed.
So that, the plaintiffs have no manner of right and title over ‘B’ schedule property.
11. Basing on the above rival contentions, the trial Court has framed the following issues and additional issues for trial :
Issues:
i) Whether the plaintiffs 1 and 2 are in lawful possession and enjoyment of the plaint schedule mentioned property as on the date of filing the suit?
ii) Whether the plaintiffs are entitled to suit claim as prayed
for?
iii) To what relief?
Additional issues:
Whether the 10 th defendant is in lawful possession and
enjoyment of plaint ‘B’ schedule proeprty as on the date of filing the suit?
12. To prove the case of plaintiffs, PWs.1 to 4 examined and Exs.A1 to
A9 were marked. On behalf of defendants, DWs.1 to 6 examined and Exs.B1 to 4 were marked.
13. The learned Junior Civil Judge, Pakala after assessing oral and documentary evidence available on record, partly decreed the suit in respect of items 2 to 18 of plaint schedule property and dismissed in respect of item
No.1 of plaint ‘A’ schedule property. Aggrieved by the same, the appellants and defendants also preferred AS.No.65/2015 and AS.No.93/2015 respectively.
14. Heard arguments on both sides. The appellants in AS.No.93/2015 also filed written arguments.
15. Now the point for consideration is :
Whether the decree and judgment dated 25.03.2015 in
OS.No.62/2009 is sustainable in law or on facts?
16. POINT :-
The plaintiffs filed the suit for permanent injunction under Sec.38 of
Specific Relief Act. Permanent injunction may be granted in favour of the plaintiff to prevent the breach of an obligation existing in his favour. The 9 plaintiffs have to prove that they were in possession and enjoyment of the plaint schedule property as on the date of filing of the suit and incidental title.
17. To prove the case of the plaintiffs, they have relied on the evidence of PWs.1 to 4 and Exs.A1 to A8. It is an admitted fact that the husband of 1st plaintiff, father of 2nd plaintiff by name Papi Reddy, one Venkataswamy
Reddy, one B.Konda Reddy and one B.Thimma Reddy are the brothers and they got divided their joint family and ancestral properties in the oral partition. The defendants 1 to 3 and one B.Ramachandra Reddy are the sons of Venkataswamy Reddy. The defendants 4 to 9 are the sons of Konda Reddy and 10th defendant is wife of the said Konda Reddy.
18. The case of the plaintiffs is that the plaint ‘A’ schedule property was fell to the share of husband of 1st plaintiff and father of 2nd plaintiff by name Papi Reddy in the oral partition and the said Papi Reddy was in possession and enjoyment of the property and after his demise, the plaintiffs being his legal heirs have been in possession and enjoyment of the plaint ‘A’ schedule property and plaint ‘A’ schedule property fell to the share of said
Papi Reddy in the said partition. In the year 2000, the legal heirs of Konda
Reddy, Venkataswamy Reddy and Thimma Reddy executed a document in favour of 1st plaintiff dated 03.06.2000 acknowledging past partition in the presence of village elders. They also undertook that they will not interfere with the possession of the plaintiffs. When the plaintiffs tried to obtain pattadar passbook and title deed and to enter their names in the revenue records, the defendants obstructed them from obtaining the same and the plaintiffs issued legal notice dated 03.11.2008, for which, the defendants 2, 4 to 6 and 10 gave reply dated 15.11.2008 denying right of the plaintiffs and their possession and they are also interfering with the peaceful possession and enjoyment. As such, the plaintiffs filed the suit. It is also mentioned in the plaint by the plaintiffs that the plaint ‘B’ schedule property fell to the share of defendants and as the plaintiffs did not mention the particulars of property, they added particulars of ‘B’ schedule property as per orders in
IA.No.480/2012 dt.04.08.2012, for which, the defendants filed their
additional written statement . The defendants denied about acquiring plaint
‘A’ schedule property by the husband of 1st plaintiff and father of 2nd plaintiff in the partition and also execution of Kararunama or acknowledgement of past partition dated 03.06.2000 and also obstructing the plaintiffs from obtaining revenue records i.e., pattadar passbook and title deed.
10
19. Since, the defendants denied the possession and title of the plaintiff, the burden lies on the plaintiffs to prove their possession over the plaint schedule property as on the date of filing of the suit and they relied on the evidence of PWs.1 to 4 and Exs.A1 to A9. PW1 is the 2nd plaintiff herein and he deposed in support of case of plaintiffs and how they acquired the property and about oral partition and execution of Kararunama and also deposed the obstruction being made by the defendants for obtaining pattadar passbook and title deed. PW1 unable to say how much extent of land is allotted to his father. He also deposed that there is no documentary proof that the plaint schedule properties stands in the name of plaintiffs. He also admitted that there is no documentary proof that the plaint schedule property is in possession and enjoyment of the plaintiffs. There is also no documentary proof that they made application for obtaining pattadar passbook and title deed in respect of plaint schedule property. He admitted that the 10th defendant having pattadar passbook and title deed and other revenue records in respect of most of ‘B’ schedule property. So, it is clear that the plaintiffs does not know the particulars of share fell to the share of husband of 1st plaintiff and father of 2nd plaintiff in the oral partition and particulars of said property and there is no documentary proof that the plaint schedule properties are in possession and enjoyment which is fell to share at any point of time.
20. The plaintiffs also examined sons of Thimma Reddy, who is brother of husband of 1st plaintiff and father of 2nd plaintiff as PW2 and PW3. They deposed in support of the case of plaintiffs and execution of Ex.A1
Kararunama by the defendants and other share holders and they also stated that plaint ‘A’ schedule property fell to the share of husband of 1st plaintiff and father of 2nd plaintiff and they are in possession and enjoyment of the same. PW2 admitted that his father and his brothers divided their family properties about 34 to 35 years back. He did not obtain the pattadar passbooks in respect of their share of properties whereas Konda Reddy and his legal heirs obtained the pattadar passbook and title deed. PW3 deposed that he did not raise any objection for mutation of manes of plaintiffs in the revenue records. He admitted that he himself and his brother have possession and enjoyment of his father’s properties, but they have a pattadar passbook and title deed with regard to their father. He also admitted that 10th defendant obtained pattadar passbook and title deed. He deposed that he does not know the survey numbers and extent of properties mentioned in 11
Ex.A1. PW4 is the adjacent land owner and he deposed that the plaintiffs are in possession and enjoyment of the plaint schedule properties. He deposed that he does not know the survey number allotted to the each sharers.
21. Apart from oral evidence of PW1 to PW4, the plaintiffs relied on
Exs.A1 to A9. Ex.A1 is said to be acknowledge of past partition and possession and enjoyment of the plaintiffs over the plaint schedule property by the defendants and other share holders. Ex.A1 is only the document under which the plaintiffs claiming possession and enjoyment of the plaint ‘A’ schedule property. The defendants 1 to 6 denied execution of Ex.A1 and their signatures in Ex.A1. There are five witnesses to Ex.A1 and scribe. The plaintiffs neither examined the attestors of Ex.A1 nor scribe to prove the execution of Ex.A1 and its contents. So, the plaintiffs failed to prove the execution of Ex.A1 by the defendants and other share holders. Therefore,
Ex.A1 cannot be considered.
22. Ex.A2 is the office copy of legal notice dated 03.11.2008 and
Ex.A3 is the postal acknowledgements. Admittedly, the plaintiffs got issued legal notice to the defendants under the original of Ex.A2 not to interfere with their possession and enjoyment of plaint ‘A’ schedule property stating that the plaint schedule property was alloted to them in the partition and they executed agreement dated 03.06.2000 and obstructing the plaintiffs by the defendants from obtaining revenue records and mutation of their names.
Having receipt of Ex.A2, the defendants got issued reply under the original of
Ex.B4 denying the contents of Ex.A2 and their possession and enjoyment in respect of plaint schedule property. Thereafter, the present suit was filed by the plaintiffs. Mere issuance of legal notice does not establish the possession of the plaintiffs. So, Exs.A2 and A3 are no way helpful to the case of plaintiffs. Ex.A4 is the DKT patta issued in favour of 2nd plaintiff in respect of survey Nos.304-1 and 304-2. The lands covered by Ex.A4 are not at all connected to the plaint schedule property. So, Ex.A4 is no way helpful to the case of plaintiffs. Ex.A5 is the pattadar passbook issued in favour of 2nd plaintiff in respect of lands covered under Ex.A4. So, it is also no way helpful to the case of plaintiff. Ex.A6 is 1-B extract of 5th defendants, Ex.A7 is the 1-B extract of 6th defendant and Ex.A8 is the 1-B extract of 7th defendant. They are not at all connected to the plaint schedule property. So, they are also no way helpful to the case of plaintiffs. Ex.A9 is the cist receipts are also not at all connected to the plaint ‘A’ schedule property. So, 12
Ex.A9 is also no way helpful to prove the possession and enjoyment of the plaintiffs as on the date of filing of the suit.
23 On the other hand, the defendants to prove their case, they relied on the evidence of DWs.1 to 6. DW1 is the 1st defendant, DW2 is the 3rd defendant, DW3 is the 2nd defendant, DW4 is the 6th defendant, DW5 is the 4th defendant and DW6 is the 9th defendant in the suit. DW1 admitted that item No.1 of plaint ‘A’ schedule property fell to the share of 2nd plaintiff’s father and the 2nd plaintiff enjoying item No.1 of plaint schedule property.
He deposed that he has no objection to enjoy the properties fell to the 2nd plaintiff’s father by the plaintiffs. He has also no objection for obtaining pattadar passbook and title deed by the plaintiffs in respect of plaintiff No.1 father’s share property. DW2 deposed that they have no objection for obtaining the pattadar passbook and title deed basing on the partition of among his father and his brothers. He admitted that there is a well in survey No.74/2 and the said well is ancestor property and the father of 2nd plaintiff and his father and legal heirs of Thimma Reddy and Konda Reddy having equal right in the said well jointly. He has no objection to obtain pattadar passbook and title deed in respect of share allotted to the father of 2nd plaintiff and husband of 1st plaintiff. DW3 deposed that PW1 filed the present suit along with his mother with regard to what property comes to his father as a share i.e., plaint schedule property. DW4 admitted that they are not objecting the enjoyment and possession of PW1’s properties which was acquired from his father. He has also no objection to obtain pattadar passbook and title deed by the plaintiffs. DW5 admitted that he has no right over item No.1 of the plaint schedule property. He admitted that all the legal heirs of share holders are partitioned their joint family properties. He does not know whether his brothers are obtained the pattadar passbook and title deed in their names in respect of the DKT lands. DW6 admitted that his father and their brothers divided their joint family properties. The DW1 to
DW6 denied their signatures in Ex.A1.
24. Apart from oral evidence of DWs.1 to 6, the defendants also relied on Exs.B1 to B54. Ex.B1 is the certificate issued by the Assistant Engineer,
Operation, APSPDCL, Kallur is connected to survey No.492 situated in the will. Admittedly the four share holders and their legal heirs are having joint well which is situated in survey No.492 and there is no dispute regarding joint right of four share holders in the agricultural well.
13
25. Ex.B2 is the pattadar passbook issued in the name of 10th defendant, which contains item No.1 of plaint ‘A’ schedule property and also other shares which is fell to the share of 4th defendant’s father. Admittedly, item No.1 locally called as ‘Chinthamanu daggara Chenu’. DW1 admitted that it is fell to the share of father of 2nd plaintiff and husband of 1st plaintiff and they are in possession and enjoyment of the said property. DW5 admitted that he has no right in respect of item No.1 of plaint schedule property. No doubt item No.1 was shown in the pattadar passbook and title deed of 10th defendant, but the said entries are made without any basis regarding item No.1 of plaint ‘A’ schedule property. Therefore, Ex.B2 cannot be considered in view of the admissions made by DW1 and DW5 and they are only nominal entries made in Ex.B1 without proper verification and possession and enjoyment of the property.
26. The defendants also relied on Ex.B3 endorsement dated 25.09.2009. It is the case of plaintiff that when they tried to obtain pattadar passbooks and title deeds, the defendants raised objection. Ex.B3 reveals that PW1 and 1st plaintiff never made any application before the revenue authorities. Ex.B2 would establish that the plaintiffs did not made any application for obtaining pattadar passbook and title deed. The learned counsel for the appellants/plaintiffs contended that the oral evidence of
PWs.1 to 4 and admissions made by DW1 to DW6 establish the possession and enjoyment of the plaintiff over plaint ‘A’ schedule property including item
No.1 of plaint schedule property and therefore, they are entitled for permanent injunction. DW1 admitted that the plaintiffs are in possession of item No.1 and 2 of plaint schedule property. DW3 who is 2nd defendant, admitted that the present suit filed by PW1 along with his mother with regard to the property which fell to the share of his father i.e., plaint schedule property. DW4 admitted that he has no objections for obtaining pattadar passbook and title deed of the properties which was enjoying by
PW1. He has no objection for obtaining pattadar passbook and title deed in respect of properties fell to the share of husband of 1st plaintiff and father of 2nd plaintiff. DW2 also stated that he has no objection to the plaintiffs’ possession and enjoyment of his father share property and also he has no objection for obtaining pattadar passbook and title deed by the plaintiffs in respect of his father share property. PW2, PW3 and PW4 categorically deposed that the plaintiffs are in possession and enjoyment of entire plaint ‘A’ schedule property. Some of the defendants’ witnesses also admitted that 14 some of the share holders have not obtained pattadar passbook and title deed in respect of properties fell to their share. Since, it is an admitted case of the plaintiffs that they did not mutate their names in the revenue records and there is possibility of obtaining revenue records and so, they did not file the same. So, the oral evidence of PW1 to PW4 and admissions made by
DW1 and DW3 established that the plaintiffs were in possession and enjoyment of the entire plaint ‘A’ schedule property as on the date of filing of the suit. The defendants failed to prove their possession and enjoyment over the plaint schedule property. The defendants taking advantage of non- mutation of name of the plaintiffs in the revenue records, they are interfering with the peaceful possession and enjoyment of the plaint ‘A’ schedule property and they are also obstructing the plaintiffs from obtaining pattadar passbook and title deed and mutation of their names. Therefore, the plaintiffs are entitled for permanent injunction in respect of the entire plaint ‘A’ schedule property.
27. Regarding plaint ‘B’ schedule property, the plaintiffs are not claiming any right or possession over the said property nor any injunction.
Therefore, there is no necessity to go into the aspect of plaint ‘B’ schedule property. The plaintiffs proved their possession over the plaint ‘A’ schedule property as on the date of filing of the suit and therefore, they are entitled for permanent injunction. The lower court without considering the admissions made by DW1 and evidence DW5 regarding item No.1 of plaint schedule property, dismissed the suit in respect of item No.1. Therefore, the decree and judgment in respect of item No.1 is liable to be set aside. The lower court after considering the oral and documentary evidence available on record rightly decreed the suit in respect of item Nos.2 to 4, which does not require any interference by this court. Therefore, the appeal filed by the plaintiff in AS.No.62/2015 is liable to be allowed and the appeal in
AS.No.93/2015 is liable to be dismissed as it is devoid of merits.
28. In the result, the appeal in AS.No.65/2015 is allowed by
setting aside the decree and judgment dated 25.03.2015 in
OS.No.62/2009 in respect of item No.1 of plaint ‘A’ schedule property
and the suit of the plaintiffs is also decreed in respect of item No.1 of
plaint ‘A’ schedule property by granting permanent injunction
restraining the defendants, their men and agents from in any way
interfering with the peaceful possession and enjoyment of the same.
15
The appeal in AS.No.93/2015 is dismissed. In the circumstances, both
parties do bear their own costs.
Dictated to the Personal Assistant, transcribed by her, corrected and
pronounced by me in Open Court, this the 9th day of April, 2018.
VIII Additional District Judge, Chittoor.
APPENDIX OF EVIDENCE
No oral or documentary evidence was adduced in this appeal.
VIII Additional District Judge, Chittoor.
16
Fair common Judgment in AS.65 & 93/2015, dt.09.04.2018 of VIII ADJC, CTR.