1
IN THE COURT OF JUDGE, FAMILY COURT CUM IX ADDITIONAL DISTRICT
AND SESSIONS COURT: EAST GODAVARI; RAJAMAHENDRAVARAM.
Present: Smt. G.Malathi, Judge, Family Court-cum- IX Additional District and Sessions Court, Rajamahendravaram.
Tuesday, the 10th day of March, 2020.
Original Suit No.107/2010
Between:
1.Manaklal Vyas, S/o late Parasuram Vyas, Hindu, Aged 85 years, Property, Nalam Bheemaraju St. Rajahmundry.
2.Vasudev Vyas S/o Manaklal Vyas, Hindu, Aged 59 years, Property, Nalam Bheemaraju St, Rajahmundry
3.Motilal Vyas S/o Manaklal Vyas, Hindu, Aged 57 years, property, Nalam Bheemaraju St, Rajahmundry.
4.Bhavani Sankar Vyas S/o Manaklal Vyas, Hindu, Aged 50 years, Property,
Nalam Bheemaraju St. Rajahmundry. ....Plaintiffs
AND
1.Mamidi Krishna Prasad S/o Gopala Krishna Murthy, Hindu, Aged 38 years, 30-42-3/2, Near Devi Public School, Chandragiri Colony, Neredumet Road, Safaiguda Secuderabad.
2.Kaparti Sivalingam S/o Siddhayya, Hindu, Aged 49 years, D.No.3-14-1/B, Srinivasapuram, Ramanthpur, Hyderabad.
3.Doulatram Vyas S/o late Parasuram Vyas, Hindu Aged 87 years, Property, D.No.3-3-387/2, Dowlat Complex, Opp: Mahankali Police Station, Secunderabad.
4.Srivallabh Vyas S/o late Parasuram Vyas, Hindu, Aged 83 years, C/o Sivakaran Harikaran, D.No.10-15-25, Pottiswamy St, Vijayawada – 1
5.Vedhavati Ojha, W/o Sampat Kumar Ojha, Hindu, Aged 40 years, Property & Husband protection, Plot No.124, Jyothi Nagar, Ring Road, Mehadipatnam, Hyderabad. (5th defendant is added as LR of deceased 4th defendant as per orders
dated 24-03-2014 in IA 414/2012)
2
6.Parvathi Joshi W/o Saratchandra Joshi, Hindu, Aged 64 years, D.No.17-32-16, Anu Plaza, Lalitha Nagar, Rajahmundry. (6th defendant is added as LR of deceased 3rd defendant as per order
dated 24-03-2014 in IA 785/2012)
..... Defendants
This suit coming up before me on 10-01-2020for final hearing in the presence of Sri I.V.Ramana Murthy, advocate for the plaintiff and of Sri Ch.A.S.Vasu Advocate for D1, Sri S.Rama Krishna, Advocate for D2, Sri Ch.V.R Advocate of D6 and D3 to D5 remained exparte, and the matter having stood over for consideration till this day, this court delivered the following:
J U D G M E N T
Suit for declaration of plaintiffs title over the plaint schedule property while holding that the G.P.A. cum sale agreement dated 15-7-2010 executed by the first defendant in favour of the 2nd defendant is void and to notify the same in the concerned registers; for consequential permanent injunction restraining the defendants 1 and 2, their men and agents etc., from in any manner interfering with the plaintiffs possession and enjoyment over the schedule property; for a prohibitory injunction restraining the defendants 1 and 2 from alienating or encumbering the schedule property in any manner or in any way dealing with it and for costs of the suit.
2. The averments made in the plaint in brief are as follows:
i] First plaintiff and defendants 3 and 4 are the brothers and sons of late Parasuram Vyas and his wife Sohinibai, who died in the years 1952 and 1980 respectively. Plaintiffs 2 to 4 are the sons of first plaintiff.
Originally, the schedule property and other properties belonged to one
Mamidi Butchayya and his brothers and they borrowed a sum of Rs.30,000/- from the said Parasuram Vyas and executed a regd. simple mortgage deed
dated 20-8-1930. After the death of Parasuram Vyas, the first plaintiff and
his brothers defendants 3 and 4 and their mother Sohinibai filed a suit in
O.S.115/54 on the file of Subordinate Judge's Court, Rajahmundry against
Butchayyaa and a compromise decree was passed on 29-3-1955. Later, the 3 hypothecated property was brought to sale and the 3rd defendant was given permission to bid for himself and on behalf of his brothers and their mother and he became the highest bidder and that the sale was confirmed on 9-12- 1957 and a sale certificate was issued to the first plaintiff and his brothers and their mother and in E.A.350/1960 in E.P.13/1957, the schedule property along with some other properties were delivered to the third defendant on 16-3-1961. The schedule property was shown as item No.5 in the delivery receipt.
ii] First plaintiff, defendants 3 and 4 and their mother partitioned the joint family properties as per the regd. partition deed dated 6-11-1958.
At that time, the properties which the first plaintiff, his brothers and their mother purchased were not yet taken delivery, the said properties shown in item-1 of E schedule in the partition deed which includes the schedule property herein, kept joint by the first plaintiff, his brothers and their mother. The said properties were kept in the name of Dowlatram Vyas i.e.
the third defendant herein. After delivery of the schedule property and other properties, first plaintiff, his brothers and their mother were in joint possession and enjoyment as co-owners. There is a tiled house in the schedule property. The 4th defendant filed a suit in O.S.8/1985 on the file of
Subordinate Judge's Court, Rajahmundry against the first plaintiff, D.3 and others for partition which were kept joint and that the said suit was transferred to the IAddl.District Court, Rajahmundry and renumbered as
O.S.41/1988. The schedule property corresponds to item-1[e] of the A
schedule in the said suit. During the pendency of the said suit, some of the properties were partitioned by the first plaintiff and defendants 3 and 4 orally by mutual consent. In the said partition, the schedule property among some other properties was taken by the first plaintiff and the 4th defendant jointly. Subsequently, in the oral partition between the first 4 plaintiff and 4th defendant, the schedule property herein fell to the share of the first plaintiff and since then, the first plaintiff is continuing in possession and enjoyment, as an absolute owner.
iii] After the delivery of the schedule property, the third defendant and his brothers paid the taxes for the schedule property and after partition between the first plaintiff and 4th defendant, first plaintiff has been paying the taxes for the schedule property. As the mutation of the schedule property did not take place, the taxes are continued to be paid in the name of Mamidi Butchayya. As the 3rd defendant is a member of the
Rate Payers Association, Rajahmundry, the taxes for the schedule property were paid for some period through the said association. 3rd plaintiff filed a suit in District Court, Vizianagaram against the other plaintiffs and defendants 3 and 4 and the said suit was transferred to the District Court,
Rajahmundry and renumbered as O.S.4/2002. The schedule property herein corresponds to item No.8 of plaint A schedule. A preliminary decree was passed on 5-6-2006 for partition of plaint A schedule into four equal shares and for allotment of one such share to the 3rd plaintiff. In the said suit, one
Sri G. Muralidhar, advocate was appointed as advocate commissioner for partition of items 2 to 8 of A schedule therein and other articles, who measured and prepared plans and the plaintiffs have come to an understanding as to their respective shares and they took steps to have registered partition deed.
iv] While so, on enquiry, the 2nd plaintiff came to know that the first defendant executed some documents in favour of some third parties in respect of the schedule property and he could know the same to be a possessory sale agreement cum general power of attorney dated 15-7-2010 executed by the first defendant in favour of the 2nd defendant. First defendant has no right or title or interest in the schedule property to convey 5 the same or any portion thereof in any manner. Since the date of delivery of the schedule property the first plaintiff and defendants 3 and 4 are in possession and enjoyment of the same till the date of partition, in which the first plaintiff and 4th defendant have taken the joint possession of the same and thereafter in partition between them, the schedule property fell to the share of the first plaintiff and since then, he has been in possession and enjoyment of the schedule property as an absolute owner in his own right openly and peacefully without any let or hindrance to the knowledge of one and all. The J.Drs. in the above E.P. or their successors never had any possession of the schedule property. The first defendant never had any possession of the schedule property, as such, the question of his delivering the schedule property to the 2nd defendant does not arise. The sale agreement cum general power of attorney executed by the first defendant in favour of the 2nd defendant is a void document. Defendants 1 and 2 are making hectic efforts to forcibly enter into the schedule property by dispossessing the plaintiffs there from. Hence, the plaintiffs seek the relief of declaration and permanent injunction. As the defendants are making preparations to alienate the schedule property in favour of third parties, the plaintiffs are constrained to seek the relief of permanent injunction restraining the defendants 1 and 2 from transferring or encumbering or otherwise dealing with the schedule property.
v] As the first plaintiff and his sons got divided in status and their joint family is not in existence, they filed together the present suit.
vi] 4th defendant died on 20-1-2012 intestate leaving behind him his only daughter who is the 5th defendant and all the properties of the 4th defendant devolved on her, no relief is claimed against the 5th defendant.
6 vii] The 3rd defendant died intestate on 26-3-2012, the 6th defendant who is only heir to D.3 and all properties of D.3 devolved upon the 6th defendant, no relief is claimed against D.6.
3. The first defendant filed his written statement denying all the averments made in the plaint. It is contended by the first defendant that the plaintiffs are never in possession of the plaint schedule property in any manner till date even prior to filing of the suit and the suit is not maintainable and it is to be dismissed with costs.
ii] The plaint schedule property is devolved to his father from his grandfather and from his father to the first defendant by way of succession.
The schedule property was purchased by the grandfather of the first defendant by name M. Butchayya on 20-10-1928 and he was in absolute possession and enjoyment till his death i.e. till 8-10-1960. The wife of
Butchayya i.e. Kameswari also died. So, the plaint schedule property devolved upon to the father of the first defendant, who enjoyed the same without anybody’s interference including plaintiffs and defendants 3 and 4.
The father of the first defendant died intestate on 16-3-1990 and the mother of the first defendant also died on 13-11-1978 and as per succession, this defendant is the sole legal heir of his parents, as such, the entire plaint schedule property is devolved on this defendant and he is in continuous possession and enjoyment of the same. The plaintiffs and defendants 3 and 4 with an intention to grab the property got filed the present suit for wrongful gain. The first defendant denied that the first plaintiff and his brothers defendants 3 and 4 and their mother filed a suit in O.S.115 of 1954 on the file of Subordinate Judge's Court, Rajahmundry against the grandfather of this defendant and obtained a decree on 29-3-1955 and brought some of the plaint schedule property for sale in E.P.13 of 1957 and third defendant was given permission to bid for himself and on behalf of his 7 brothers and their mother and the sale was confirmed on 9-12-1957 and sale certificate was issued and that the schedule property and other properties were delivered to the third defendant on 16-3-1961 and the sale certificate was misplaced, since the grandfather of this defendant Butchayya died on 8-10-1960. As such the question of delivery of property on 16-3- 1961 does not arise. Therefore, the plaintiffs fabricated and brought into existence of the delivery receipt. AS this defendant has got a valid title and possession, he has executed G.P.A. cum sale agreement dated 15-7-2010 for a valuable consideration. Hence, the plaintiffs and defendants 3 and 4 have no right in any manner to question the right of this defendant. The claim of the plaintiffs is barred by limitation and there is no cause of action to file this suit. Without claiming recovery of possession, the plaintiffs have no right to file the suit for declaration and injunction. The documents filed by the plaintiffs are not genuine and they might have been brought into existence and as such, the suit is liable to be dismissed with costs.
4. The 2nd defendant filed memo adopting the written statement filed by the first defendant. The defendants 3 to 5 remained exparte. As the defendant No.6 did not file written statement inspite of several opportunities given for filing of written statement and no representation on his behalf as such, it is treated as no defence.
5. Basing on the above pleadings, the following issues are settled for trial:
i] Whether the plaintiffs are entitled to the declaration of their title to the plaint schedule property?
ii] Whether the plaintiffs are entitled for permanent injunction to restrain the defendants 1 and 2 from interfering with their enjoyment?
8 iii] Whether the plaintiffs are entitled to permanent injunction restraining the defendants 1 and 2 from making alienation or encumbering the property?
iv] To what relief?
6. After making amendment to the plaint, as per the orders in
I.A.590/2016, the first defendant filed additional written statement denying all the allegations that after filing of the suit, the plaintiffs partitioned their properties as per the partition deed dated 25-8-2011 and that the same was registered in the year 2013 and that the plaint schedule property fell to the share of the 2nd plaintiff and that the documents were brought into existence to suit their convenience. Only with an intent to cause harassment to this defendant, plaintiffs filed the present application and there are no tenable grounds urged by the plaintiffs in the said application and ultimately prays to dismiss the suit with costs.
7. The following additional issue is framed:
i] Whether the partition deed dt.25-8-2011 is true, valid and binding on the plaintiffs?
8. During the course of trial, on behalf of plaintiffs P.Ws. 1 to 7 were examined and Exs.A.1 to A.149 were marked and the employee in Municipal
Corporation, Rajamahendravaram is examined as CW1 and through whom
Exs.X.9 to X.14 were marked and Exs.X.1 to X.8 were marked through
P.W.3. Though, the first defendant filed his chief affidavit, but he failed to attend the Court for cross examination, as such his evidence is eschewed and cannot be taken into consideration.
9. Heard both counsels arguments.
10. The learned plaintiff counsel has argued that the plaintiffs herein filed the suit seeking for declaration of their title over the plaint schedule property by holding that the GPA cum sale agreement dated 15-07-2010 executed by 9 the 1st defendant in favour of the 2nd defendant is void and to grant permanent injunction restraining D1 and D2 from interfering with the plaintiffs possession and enjoyment over the plaint schedule property.
11. He further argued that as the relief of declaration is sought by the plaintiff as it is a comprehensive relief, the burden is heavy on the plaintiffs to prove the same. Further, he argued that in support of the case of the plaintiff, they got examined PWs 1 to 7 and also examined official witnesses as CW1. Further he argued that through the evidence of PW1, who is the 2nd plaintiff in the case as per his ocular evidence, it is disclosing that originally, the plaint schedule property belonged to one Mamidi Butchayya and his brothers, who borrowed money from the 1st plaintiff’s father by giving security of the plaint schedule property among the other properties and accordingly, they executed registered simple mortgage bond dt.20.08.1930. It is the contention of the plaintiff that after the death of their father, the 1st plaintiff herein and the defendants 3 and 4 in the suit and their mother, filed O.S 115/1954 on the file of Subordinate Judge’s
Court, Rajahmundry for realization of the amount due to them under the said mortgage. It is their contention that in the said case, a compromise preliminary decree was passed on 29-03-1955.
12. The said decree was transferred to District Court, Rajahmundry for the purpose of execution and the properties mentioned in the suit were brought for sale in E.P No.13/1957 wherein, the 3rd defendant was given permission to bid for himself and on behalf of his brothers and their mother and it is their contention in the said sale proceedings, the 3rd defendant herein became the highest bidder and the same was confirmed in his favour on 09-12-1957 and the plaint schedule property is mentioned as item No.5 in the said sale certificate and the old Door No. of the said property is 6-5 and 6-5A corresponding new number is 9-33-6. Further he argued that after 10 the sale is confirmed in favour of the 3rd defendant, they filed EA 350/1960 in EP 13/1957 for delivery of properties purchased by them along with other properties, accordingly the same is delivered to them on 06-03-1961. By referring the same, the learned plaintiff counsel has argued that it is the contention of the plaintiff that they acquired title to the plaint schedule property under sale certificate and recitals in Ex.A1 sale certificate, Ex.A8 certified copy of delivery receipt, Ex.A9 which is the certified copy of the
Amin Report, which are supporting their case that the item Nos. 1, 2 and 5 i.e., schedule property and other properties are delivered to the 3rd defendant through due process of law on 06-03-1961.
13. Though it is the contention of the defendant that one Mamidi
Butchayya is the original owner of the plaint schedule property and it is the contention of the 1st defendant that after the death of Mamidi Buchayya, it is devolved on the father of the 1st defendant and from his father, the 1st defendant herein succeeded by way of succession and in support of succeeding the plaint schedule property, the defendant herein relied on
Ex.A127 but according to the contention of the learned counsel for the plaintiff as the 1st defendant by name Mamidi Krishna Prasad is one of the identifying witness to the sale deed before the registrar under Ex.A145, then he came to know about the said property was standing in the name of
Butchayya and he created the death certificate relating to Butchayya by managing the Municipal Authorities, as if the plaint schedule property was not delivered to the plaintiffs in the year 1961, and as the said Butchayya died in the year 1960 itself, the documents relied on by the plaintiffs i.e.,
Ex.A1 to Ex.A9 are fabricated for the purpose of the case.
14. It is his contention that as Ex.A1 to A9 are public documents i.e., the sale certificate and Amin Report which are the acts done by public officer, as per Sec.114 of Indian Evidence Act, the said documents are the 11 public documents, so their genuinety cannot be questioned. Further the plaintiff through the said documents have proved that they purchased the plaint schedule property and taken the delivery of the same and partitioned the said properties. According to his contention after lapse of 47 years, the death of Butchayya was registered in Municipal records on 16-10-2007 as if the said Butchayya died in the year 1960. But according to his contention, as per Rule 9 (3) of Births and Deaths Registration Act, if any death or birth of a person is not registered by the Municipality within one year and the time is expired, the Municipal Corporation has no authority to issue birth certificate or death certificate, and the competent authority to issue the same is the
RDO. But here in the instant case by examining CW1, they proved that the
RDO did not issue any proceedings with regard to the death of Buchayya and the documents relied on by the defendant i.e., Ex.A128 to Ex.A136 are the correspondence made by plaintiffs with the RDO. Further as per the RDO proceedings issued, it is disclosing that the said proceedings are issued with regard to the death of one Gudivada Apparao but not Butchayya which in turn supports the case of the plaintiffs that having seen the property relating to Mamidi Butchayya was not mutated and the said property is standing in the name of Butchayya as per Ex.A145 sale deed, wherein D1 signed as attesting witness, later he created the story of his succeeding the property of Mamidi Buchayya as a foster son.
15. As per recitals in Ex.A127 under which the defendant is contending that he is the owner of the property, he is described as foster son of one Mamidi Bhaskara Ramayya. According to the contention of the learned counsel for plaintiff, a foster son will not succeed the property of an individual for whom he is a foster son unlike a natural son or an adoptive son and as per Sec.3(57) of General Clauses Act a “son” is defined as natural son or adoptive son without any valid testamentary document like 12 “Will”, a foster son will not succeed any property of his father by way of succession. Here in the instant case, as per the description in document
No.127 as the defendant No.1 is described as foster son, in such case, he will not succeed the property of Mamidi Butchayya by way of succession and he won’t get any rights in the property of Mamidi Butchayya and the story with regard to he succeeding the plaint schedule property as a heir of
Mamidi Butchayya is created by the 1st defendant in collusion with 2nd defendant by creating GPA cum sale deed dt.15-07-2010.
16. Further the learned counsel for the plaintiffs has argued that it is their contention that after taking delivery of the said property, the 1st plaintiff and his brothers and their mother partitioned their joint family properties as per the registered partition deed dated 06-11-1958 and the recitals in Ex.A11 which is the registration extract of said partition deed and
Ex.A12 are supporting his case and according to his contention, the plaint schedule property is shown as in item No.1 of E-Schedule. According to his contention, the 4th defendant filed OS 8/1985 on the file of Sub Court against the 1st plaintiff and 3rd defendant and others for partition of property which were kept joint and the said suit was transferred to I Addl. District
Court and the same is numbered as O.S 41/1988 and in the said suit the plaint schedule property is also shown as one of the item.
17. Further, he contended that during the pendency of O.S 41/1988, the plaintiffs herein orally partitioned the properties by mutual consent outside the Court wherein the plaint schedule property was taken by the 1st plaintiff and the 4th defendant herein jointly and subsequently, in the oral partition among the 1st plaintiff and the 4th defendant with regard to the partitioning of their joint family properties the schedule property fell to the share of 1st plaintiff and he is in continuous possession and enjoyment of the same as absolute owner. Further, he argued that the 3rd plaintiff herein filed 13 a suit on the file of District Court, Vizianagaram against the other plaintiffs seeking for partition of their properties in which the schedule property has also found part and it is his contention, later the said suit was transferred to
District Court, Rajahmundry and the same is numbered as 4/2002 and later, it was made over to V Addl. District and Sessions Court, Rajahmundry and the schedule property is corresponding to item No.8 of the schedule property in the said suit, and a preliminary decree was passed in the said suit on 05- 06-2006.
18. He further argued that during the pendency of the said suit, on application of the 3rd plaintiff a preliminary decree was passed on 01-03- 2004 for partition of A-schedule property and some other properties into 4 equal shares and allotment of one such share to the 3rd plaintiff and on application of 3rd plaintiff an advocate commissioner was appointed and he inspected item No.2 to 8 of A-schedule in the said suit O.S 4/2002 wherein the plaintiffs have came to an understanding with regard to their respective shares agreed to be taken by them and accordingly, they got executed a partition deed and presented the same for registration.
19. It is their case that since from the date of delivery of plaint schedule property through Court i.e., on 16-03-1961, the 1st plaintiff herein and the defendants 3 and 4 paid taxes to the plaint schedule property in the name of the Dowlath Ram Vyas and his brothers. It is their contention that the schedule property is fell to the share of 1st plaintiff and he has been paying the said taxes and the same is deposed by PW1 and PW2, who are the 1st and 2nd plaintiff in the case. Further it is his version that though the delivery of the said property was effected but the mutation of said property from the name of Mamidi Butchayya is not taken place into the name of the plaintiffs and it used to be continued in the name of Butchayya, the tax receipts and demand notices used to be received in the name of Butchayya 14 and as per the recitals in Ex.A15 to Ex.A72 are supporting their version.
Ex.A15 to Ex.A72 which are property tax demand notices and receipts shows the door number as 9-33-6 which is the plaint schedule property.
20. Further he argued that the house tax to the plaint schedule property was paid for some time to the Municipality, later as the Municipality was upgraded as Municipal Corporation, then the plaintiffs used to pay the taxes to the plaint schedule property and to the other properties by way of
DDs and pay orders from 1978 to 2010 and the recitals in the documents relied on by them are supporting their case. Further he argued that as one
Dowlath Ram Vyas and his brothers are members of RATE payers
Association, Rajahmundry for some period the taxes of the said property are paid through the said Association. Further he argued that when a special notice was issued to the plaintiffs by the Municipal Corporation proposing to enhance the tax for the schedule property then, the plaintiff has filed revision against the Municipal Corporation as per the orders in the said revision the Municipal Corporation has reduced the half yearly tax to
Rs.151/-. According to his contention, through the evidence of PW1 and PW2 supported by Ex.A1 to Ex.A117 documents, they proved that the plaintiffs have acquired title to the plaint schedule property from the date of delivery of the said property from 1961 onwards and are in possession and enjoyment of the same as absolute owners of the said property and the 1st defendant herein is not having any right or title over the plaint schedule property.
21. Further he contended that as it is the contention of the 1st defendant that in EP 13/1957 in OS 115/1954 there is only part satisfaction is recorded and there are no proceedings for delivery, as such, the claim of the plaintiff that they succeeded the plaint schedule property as the same is delivered on 16-03-1961 is false. But according to the contention of the 15 learned counsel for the plaintiff the 3rd defendant for himself and on behalf of the 1st plaintiff and 4th defendant and on behalf of his mother took the delivery of the properties in Court Auction on 16-03-1961 and one of such properties which is taken on delivery is house bearing 3-599 corresponding to new number 8-2-40 and according to his contention after delivery of the schedule property, the Mamidi Butchayya and his son Bhaskar Ramayya and two others took the said property on lease for a period of 6 months then, the 1st plaintiff and his brother filed HRCMP 38/1963 on the file of Rent
Controller Rajahmundry seeking for eviction of Bhaskar Ramayya and others by which time, the Butchayya died and it is his contention the said RCC was allowed and against the said order the Bhaskar Ramayya and others filed
CMA 6/1965 in the said CMA order, it was observed by the Judge that PW1
speaks to delivery of properties through Court and passing of the delivery receipt on 13-03-1961 wherein the Butchayya signed in it i.e., Ex.P9 is the rent deed executed by the respondents and late Mamidi Butchayya in favour of the petitioners with regard to the house in dispute agreeing to pay
Rs.100/- per month and when the respondents failed to pay the rents the petitioners send notices to them wherein, the Butchayya was alive and he received notice on 25-08-1961 and it is observed in the said order that the respondent and Mamidi Butchayya entered into the respective premises and are in possession after execution of rent deed dt.16-03-1961. Further the son of Mamidi Butchayya had admitted that in Ex.P9 along with him, his father Mamidi Butchayya has signed and he identified his signature which in turn supporting their case that the said Mamidi Butchyya was alive when the suit schedule property was delivered to the plaintiffs on 16-03-1961 as he was alive, he signed on rent deeds on later dates.
22. According to his contention, through the said documents they proved that the said Butchayya was alive and the date of death mentioned 16 by the 1st defendant as 08-02-1960 of Mamidi Butchayya cannot be considered and further, he argued that through the evidence of CW1 and
PW3 who are official witnesses supported by the documents they proved that the Mamidi Butchayya is alive by 1961 also and further from the evidence of
PW4, they proved that he purchased 195 Sq yards of site together with
Madras terrace house from out of premises bearing old No.5-399 corresponding to new door number 8-2-40 from the defendants 4 and 5 for
Rs.16,00,000/- and as per the registered sale deed 20-10-2007 which is marked as Ex.A145 and he clearly supported their case that in the said document, the Mamidi Krishna Prasad i.e., 1st defendant herein has signed as identifying witness in the said sale deed and the Mamidi Krishna Prasad
S/o Gopala Krishna and sisters are attestors to the said documents. He also stated that in the said document, the 1st defendant by name Krishna Prasad is described as S/o Gopala Krishna and Foster son of M.Bhaskar Ramayya, which in turn supports their version that to the property which was purchased by the PW4 from D4 and D5, which is the property situated by the side of the plaint schedule property and as the 1st defendant is having knowledge about the same, he being the attesting witness to the said document, later he created the story of succession under Ex.A127 document and he created the story. Further he argued that through the tax receipts and correspondence they made to the concerned authorities, they proved that Mamidi Butchayya is alive as on the date of delivery of plaint schedule property in the year 1961 and accordingly, the plaintiffs have acquired title to the plaint schedule property and they are in possession of the same since from the date of purchasing the said property and further he argued that the series of events goes to show that the plaintiffs are in possession and enjoyment of the plaint schedule property as the rightful owners of the said property. Even though it is the contention of the defendant that there is an oral partition during the pendency of the suit wherein the plaint schedule 17 property fell to the share of 2nd plaintiff and it is not a bar to claim the share of the plaintiff according to him because any subsequent events taken place after filing of the suit, by way of partition it will not effect the right of the plaintiff in order to avoid multiplicity of litigation, they have partitioned their properties legally which is not a bar as they took the said partition in order to preserve their right and to shorten the litigation. In support of his contention, he relied on a decision reported in AIR 1973 SC 171 in the case of M/s M.Laxmi & Co., Vs. Dr. Anant R.Deshpande & another, in which it is held that “Court can take notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice.”
23. Further he also relied on another decision in the case of
C.Rabindranath singh and another Vs. K.V.Seetharamayya, when an
EA is filed seeking for delivery of possession when once the delivery is effected nothing more is remind for the Court than to record the delivery and close the execution unlike in a money decree, the full satisfaction or a part satisfaction will not be recorded in a suit which was filed seeking for possession when a decree was passed and when the decreeholder applies for delivery of possession the full satisfaction will not be recorded and simply it will be recorded as delivery was effected and the same is recorded.
Accordingly, here in the instant case, as per the endorsement of Amin’s report as per Ex.A9 as on execution of warrant, as per the report of Amin the delivery was effected and the same is recorded which shows that the same is delivered to the plaintiffs under due process of law. So it cannot be questioned by the defendants. Hence by referring the same, the learned plaintiffs counsel has argued that through the documents filed by them supported by the oral evidence of plaintiffs, they proved their case and he prayed the Court to decree the suit.
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24. Though sufficient time is granted to the defendant, they failed to argue the matter on their side and finally, this Court has treated as heard the arguments on the side of the defendants.
25. Issue No.1 to 3:
As argued by the learned plaintiff counsel, as this is a suit filed by the plaintiff seeking for the relief of declaration, which is a comprehensive relief, the burden is heavy on the plaintiff to prove and establish their claim in the suit, in such case only, they are entitled for the said relief.
26. Here in the instant case, the plaintiffs 1 and 2 are examined as
PW1 and PW2 and they also got examined PW3 to PW7 in support of their case. So as per the ocular evidence of PW1 and PW2, it is disclosing that originally the plaint schedule property belongs to one Mamidi Butchayya, who is the grandfather of the 1st defendant and it is the contention of the plaintiffs that the said Mamidi Butchayya borrowed an amount of
Rs.30,000/- from the father of the 1st plaintiff and accordingly, he executed a registered simple mortgage deed dt.20-08-1930 and it is the contention of the plaintiff that after the death of the 1st plaintiff’s father, the 1st plaintiff herein and his brothers, who are Defendants 3 and 4 in the suit and their mother by name Sohini Bai filed O.S 115/1954 on the file of Subordinate
Court, Rajahmundry against the said Mamidi Butchayya towards realization of amount due by him under the said mortgage bond.
27. It is the contention of PW1 and PW2 that later the said suit was compromised and a compromise decree was passed on 29-03-1955, later for the execution of the said decree EP 13/1957 was filed wherein the 3rd defendant was permitted to participate in the said auction, as per his contention, he stood as highest bidder in the court auction and the same was confirmed in his favour and to that effect, a sale certificate was issued to them, and later they filed EA 350/1960 seeking delivery of the said 19 property. In support of the case of the plaintiff, they relied on Ex.A1 which is the sale certificate, which was issued by Addl. District Judge, Rajahmundry in EP 13/1957 in O.S 115/1954 and as per the contention of the plaintiffs the item No.5 shown in the said EP is the plaint schedule property bearing old No.6-5 and 6-5A and new No.9-33-6. As per the recitals in Ex.A1 sale certificate, it is disclosing that the 3rd defendant was declared as the auction purchaser of the immovable property and to that effect Ex.A2 i.e., the registration extract of Ex.A1 sale certificate is issued. And as per the recitals in Ex.A3, which is the certified copy of petition in IA 350/1960 in O.S 115/1954 on the file of District Court, Rajahmundry and orders passed in the said IA thereon showing that the rooms were left undelivered by the Amin and later, they were delivered subsequently to the auction purchaser i.e., to the 3rd defendant and the same is recorded and the said EA filed in EP is terminated and as per recitals in Ex.A8, which is the certified copy of delivery receipt, it is showing that the schedule property was delivered to 3rd defendant herein and in the said receipt one Mamidi Butchayya, who is the grandfather of the 1st defendant, Mamidi Bhaskara Ramayya, who is the father of the 1st defendant were signed, supporting the contention of the plaintiffs that they purchased the plaint schedule property under the above said document.
28. It is the contention of the 1st defendant that the said delivery is not effected and the said documents are created for the purpose of the case and it is his contention that he being the foster son of Mamidi Bhaskar
Ramayya, he succeeded the suit schedule property, in such case, as the plaintiffs are contending that they are the real owners of the plaint schedule property, they have to prove the same supported by the documents. Here in the instant case, the plaintiffs through Ex.A1 to Ex.A9, they have proved that the 3rd defendant being the auction purchaser in the sale held in the 20
Court he became highest bidder as the same was knocked down in his favour and the same was confirmed and accordingly, the EP schedule property was delivered to him and the recitals in Ex.A1 to Ex.A9 are supporting their contention. Even though, it is the contention of the 1st defendant that the said documents are created for the purpose of the case, but as argued by the learned counsel for the plaintiff, according to the view of the Court as per section 114 of Indian Evidence Act, the contents in public document can be looked into as they are genuine documents and accordingly, here in the instant case, the plaintiffs are relying on Ex.A1 to
Ex.A9, which are the public documents i.e., the sale proceedings and sale certificate and delivery receipt delivered by Amin which are documents issued by public officer. In such case, as the documents are issued by public officers, their authenticity cannot be questioned and it can be said that the said documents are genuine documents and the contents can be looked into.
Accordingly, as per the recitals in the said documents, the plaintiffs proved that they acquired the title to the plaint schedule property under the said documents.
29. Further as per the evidence of PW1 and PW2, it is disclosing that the 1st plaintiff, defendants 3 and 4 and their mother have partitioned their joint family properties as per the registered partitioned deed dt.06-11-1958 and the same is marked as Ex.A11 which is supporting the version of the plaintiff that it is the certified copy of registered partition deed executed in between the 1st plaintiff and defendants 3 and 4 and their mother wherein, the schedule property was kept joint as the same is not delivered to them by the date of execution of partition deed. Further it is the contention of the plaintiffs that the 4th defendant have filed a suit in O.S 8/1985 on the file of
Subordinate Judge’s Court, Rajamahendravaram against the 1st plaintiff, 3rd defendant and others seeking for partition and later, the same was 21 transferred to I Addl. District Court, Rajahmundry and numbered as OS 41/1998 wherein the schedule property and other properties were partitioned by mutual consent and according to the contention of the plaintiffs, the plaint schedule property and other properties were fell to the share of 1st plaintiff and 4th defendant and the memos were filed to that effect, accordingly the said memos were recorded in the said Court. Later, it is the contention of the plaintiffs that in an oral partition between the 1st plaintiff and 4th defendant, the schedule property was fell to the share 1st plaintiff and since then, the 1st plaintiff is in possession and enjoyment of the said property i.e., from the date of delivery of the plaint schedule property to 3rd defendant and his brothers by paying the taxes to the schedule property.
30. It is the contention of the plaintiffs that though they took delivery of the said property in the year 1961, but as the mutation of their name was not carried on in respect of the schedule property, the demand notices and the property tax notices were continued to be issued and paid in the name of the Mamidi Butchayya and in some of the tax receipts, the name of the 3rd defendant was also mentioned. As per the recitals in Ex.A15 to Ex.A40 which are the house tax demand notices and receipts issued in the name of Mamidi Butchayya and on the back side of the said tax receipts, it was mentioned that the tax was collected from Dowlat Ram Vyas, who is the 3rd defendant in this case and as per recitals in Ex.A41 to Ex.A72, which are the property tax demand notices and tax receipts issued to the plaint schedule property bearing No.9-33-6, it is disclosing that they are issued in the name of Mamidi Butchayya supporting the case of the plaintiffs that though they purchased the said property in the Court Auction, as their names were not mutated in Municipal records, for the said reason, the notices and tax receipts were issued in the name of Mamidi Butchayya.
22
31. It is contended by the plaintiffs that the 3rd plaintiff herein filed a suit in District Court, Vizianagaram against other plaintiffs and defendants 3 and 4 seeking for partition of joint family properties and the same was transferred to Rajahmundry and the same is renumbered as OS 04/2002 and made over to V Addl. District Court, Rajamahendravaram, wherein the plaint schedule property is shown as Item No.8 of A-schedule. According to the contention of the plaintiff, in the said case O.S 4/2002 an interim preliminary decree was passed on 01-03-2004 for partition of A-schedule properties therein and also some other properties into 4 equal shares and for allotment of one such share to the 3rd plaintiff wherein an advocate commissioner was appointed, who prepared plans and measured the properties, wherein the plaintiffs came to an understanding with regard to their respective shares and they intended to take steps to have registered partition deed.
32. It is the contention of the plaintiff that it is learnt by them that the 1st defendant executed a possessory agreement of sale cum GPA on 15- 07-2010 in favour of 2nd defendant and it is their contention that he is not having any right, title or interest in the schedule property. But it is the contention of the 1st defendant that he being the legal heir of Mamidi
Bhaskara Ramayya has succeeded the plaint schedule property and the delivery of the plaint schedule property to the plaintiffs is not correct and the said documents are created by the plaintiffs as the grandfather of the 1st defendant by name Mamidi Buchayya was not alive by the date of delivery and he was died in the year 1960.
33. As the plaintiffs are contending that Mamidi Butchayya is alive on the date of delivery and he signed as witness on delivery receipt, as 1st defendant, who is the foster son of one Bhaskara Ramayya, who is the grandson of Mamidi Butchayya, in such case, the plaintiffs have to prove their case supported by documents. In support of the case of the plaintiff, 23 they got examined PW3, who is the VRA, who was authorized to give evidence in the Court on behalf of sub collector, Rajahmundry. She in her evidence as PW3 deposed that as per the letter addressed by the RDO to the 1st plaintiff which is Ex.A129, she brought the said records and she in her cross examination has stated that as the original of Ex.A129 could not be traced out in their office, for the said reason, she is unable to produce
Ex.A129 but Ex.X1 is the certified copy of letter corresponding to Ex.A129 and it relates to one Gudivada Apparao. Further as per the evidence of CW1 and as per recitals in Ex.X1 to Ex.X14, it is disclosing that those are the correspondence made in between the Public Health Officer Municipal
Corporation and RDO Rajahmundry basing on the application of plaintiff, in respect of registration of Death of Mamidi Butchayya and as per recitals in the said documents and as per the evidence of PW3, it is disclosing that the information regarding the death of Mamidi Butchayya was not sent to the
RDO office and is not available in the office of RDO and as per the recitals in
Ex.A128 to Ex.A140 which is the correspondence between the public health officer and the RDO basing on the application of the plaintiff under RTI Act with regard to the request he made relating to the death of late Mamidi
Butchayya and as per the contents in the said document, it is revealing that the information with regard to the death of Mamidi Butchayya was not sent by the Office of the RDO and it was not available with the office of RDO.
34. Further according to the contention of learned counsel for plaintiff, if the death of a person is not registered immediately and within a period of one year from his death, in such case, as per Rule 9 of Register of
Births and Deaths Act, the Municipality has no authority to issue death certificate, and the proper person is the RDO, he has to issue proceedings if the same are issued and the same are entered in the register maintained in the office of RDO, it can be looked into. But as per the evidence of PW3, it is clear that as per Ex.X7 which was informed to their office that on search of the records relating to 2006 and 2007, they did not receive any application seeking for issuing any proceeding with regard to the death of Mamidi
Butchayya and further PW3 admitted in her evidence that if there is any 24 delay in reporting the death of any person, without the proceedings of sub collector, the corporation cannot register the death of the person, and further she admitted in her cross examination that the proceedings issued in their Office in Dis. No.1991/2007 dt.29-06-2007 which is marked as Ex.X3 is relating to the death of Gudivada Apparao, which in turn supporting the case of the plaintiffs that though the 1st defendant has contended that the
Mamidi Butchayya was not alive in the year 1960 and was died to that effect, though he relied on the proceedings, but the said proceedings are not supporting their case, which in turn proves the case of the plaintiff that the said Mamidi Butchayya is alive in the year 1960.
Apart from that the plaintiffs got examined the Health Assistant of
Municipal Corporation, Rajahmahendravaram as CW1 , who in his cross examination deposed that if the death of any person is not reported to the corporation in time, one has to approach the office of the Sub-Collector for registration of such death, who after making enquiry issue proceedings directing the corporation to register the death of such particular person. He further deposed in his cross examination that after making enquiries with
RDO, they informed that they did not issue any proceedings to the corporation relating to the death of Mamidi Butchayya and basing on it, they cancelled the death certificate issued relating to the death of Mamidi
Butchayya. Therefore, it supports the version of the plaintiffs that Mamidi
Butchayya was alive even at the time of delivery of the schedule property in pursuance of the Court auction.
35. It is the contention of the plaintiffs that soon after the delivery of the plaint schedule property, they are in possession of the same since 1961 onwards by enjoying the said property as the absolute owners of the property and the 1st defendant herein is not having any right or title over the plaint schedule property. Though it is the contention of the 1st defendant 25 that no proceedings with regard to the delivery of plaint schedule property is issued in favour of the plaintiffs as only part satisfaction is recorded, no oral or documentary evidence is placed by D1 in that regard, as such, the contention of the 1st defendant that the plaintiffs have not succeeded to the plaint schedule property on 16-03-1961 has no legs to stand.
36. In order to prove the contention of the defendants, though the 1st defendant filed his chief affidavit, he failed to turn up before the Court.
Hence, his evidence is eschewed and on the other hand, as it is the contention of the plaintiffs that they filed EP 13/1957 in O.s 115/1954 against one Butchayya wherein auction proceedings were conducted in which, the 3rd defendant himself has participated as one of the auction purchasers and the said sale was confirmed in his favour as he became the successful bidder and according to the contention of the plaintiffs, only part satisfaction is recorded but as contended by the learned counsel for the plaintiffs has relied on by him in a decision in the case of C.Rabindranath
Singh and another Vs. K.V.Seetharamayya, wherein it was held that when EA is filed seeking for delivery of possession when once the delivery is effected nothing more is remind for the Court than to record the delivery and close the execution unlike in a money decree, the full satisfaction or a part satisfaction will not be recorded in a suit which was filed seeking for possession when a decree was passed and when the decreeholder applies for delivery of possession the full satisfaction will not be recorded and simply it will be recorded as delivery was effected and the same is recorded.
Accordingly, here in the instant case, admittedly, the D.Hrs have filed EA 13/1957 in O.S 115/1954 seeking for delivery of possession as the decree was passed in their favour, accordingly in the EP proceedings basing on the endorsement of Amin report as per Ex.A9, on execution of warrant by Amin and as per report of Amin, the delivery was effected and the same is 26 recorded by the Court, which shows that the property was delivered to the plaintiffs under due process of law as argued by the learned counsel for the plaintiffs. At present the defendants cannot question the same as admittedly, the EA 13/1957 in O.S 115/1954 is filed basing on a decree which is passed seeking for possession but not in the money decree. So as per the decision relied by the learned counsel for the plaintiffs, the facts of the said decision are squarely applies to the facts in the present case.
Accordingly, as per Ex.A3 Amin report the delivery was effected, which goes to show that the property was delivered to the plaintiffs through due process of law.
37. Further it is the contention of the plaintiffs that the third defendant for himself and on behalf of the 1st plaintiff and 4th defendant and on behalf of their mother took the delivery of the properties in pursuance of Court Auction on 16-03-1961 along with the plaint schedule property and he also took delivery of one of such properties, which is taken on delivery the house bearing No.3-599 corresponding to new number 8-2- 40 and as per the contention of the plaintiffs after delivery of the schedule property, Mamidi Butchayya and his son by name Bhaskara Ramayya and two others took the said property bearing D.No.3-599 on lease for a period of 6 months. Then the 1st plaintiff and his brother filed HRMC 38/1963 on the file of Rent Controller, Rajahmundry seeking for eviction of the said
Bhaskar Ramayya and others by which time, the said Mamidi Butchayya died.
38. The plaintiff herein have relied on Ex.A141 which is the CC of a petition in HRCMP which alleged to have filed by the petitioners seeking for eviction of D1’s father and others in respect of the properties pertaining to the plaintiffs and as per the recitals in Ex.A142 and Ex. A143 which are the certified copy of judgment and decree in CMA 6/1965 on the file of I Addl.
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District Court, Rajahmundry filed by father of D1 by name Bhaskara
Ramayya wherein the 1st defendant herein signed as an attestor. Further as argued by the learned plaintiffs’ counsel and as per recitals in said document, it is disclosing that in a rent deed alleged to have executed by the Mamidi Butchayya and his son Bhaskara Ramayya in favour of the plaintiffs wherein they signed in the said document in the year 1961 and in the said eviction proceedings, the said Bhaskara Ramayya has identified the signature of his father Mamidi Butchayya in the said rent deed in the year 1961 which in turn supporting the case of the plaintiff that after purchase of the plaint schedule property in the Court auction along with some other properties, among the said properties, some properties were given on lease to Bhaskara Ramayya and Mamidi Butchayya. Later, the plaintiffs have filed suit for eviction and they got issued notices to the respondents i.e., to
Bhaskar Ramayya and Butchayya, wherein Mamidi Butchayya have received notices in the year 1961 which supports the case of the plaintiff that the said
Mamidi Butchayya is alive as on the date of delivery of plaint schedule property under Ex.A8 and Ex.A9, which in turn falsifying the case of the 1st defendant that the said Mamidi Butchayya died in the year 1960.
39. Further, it is the case of the plaintiffs that as the Dowlatram
Vyas and his brother were the members of RATE Payers Association for some period, the property tax was paid by the 1st plaintiff for the schedule property under recitals in Ex.A104 to Ex.A121 relating to the years 1981, 1984 to 1993 supporting the case of the plaintiffs that they paid house taxes to the said properties and further as per the recitals in Ex.A122 to Ex.A124, it is disclosing that when the Municipality issued a special notice to the plaintiff enhancing the tax pertaining to the plaint schedule property he filed a revision against Municipal Corporation and accordingly, the corporation has reduced the tax and as per the recitals in Ex.A122 to Ex.A124 which are the 28 office copies of Revision petition and endorsement given by the Corporation, they are supporting the case of the plaintiff.
40. It is the case of the plaintiffs, as per the report of the commissioner and as per the understanding arrived by them the plaint schedule property fell to the share of the 2nd plaintiff since then he is in possession and enjoyment of the said property in his own right and an absolute owner. So the plaintiffs by examining themselves as PW1 and PW2 supported by the evidence of PW3 proved their case though the said PW1 cross examined by the counsel for 1st defendant except putting suggestions to the said PW1 that the plaint schedule property belonged to Mamidi family and putting a suggestion that as Mamidi Butchayya died on 08-10-1960, the property was not delivered by Mamidi Butchayya to the plaintiff on 16-03- 1961 but the said PW1 who is the 2nd plaintiff in this case clearly stated in his evidence that he got acquaintance with Mamidi Butchayya. Except putting the said suggestion nothing was elicited in the cross examination of
PW. But in his cross examination, he stated that as he inherited the plaint schedule property through his father and paternal uncle and he sought for declaration over the plaint schedule property and PW2 was cross examined by D1’s counsel, he in his cross examination also admitted that originally, the property belong to Mamidi Butchayya and he stated that they purchased the same in Court auction, which in turn supporting the case of the plaintiff and he also specifically stated that the property was delivered on 16-03- 1961.
41. Though it was suggested to him that the properties of the said
Butchayya was not auctioned and delivered, he denied the same and further as per the evidence of PW4, it is disclosing that he purchased the properties from defendants 4 and 5 relating to the property bearing D.No.5-399 bearing present Door No.8-2-40 and he purchased an extent of 195 Sq.
29 yards of site together with old Madras terraced house from out of the premises bearing old D.No.5-399 from defendants 4 and 5 and as per recitals in Ex.A145 it is supporting his version that it is the certified copy of sale deed wherein the 4th defendant has affixed his thumb impression and he stated that in the said sale deed Mamidi Krishna Prasad, who is the 1st defendant herein has signed as an attestor and they signed in the said documents by knowing the contents, wherein the 1st defendant was signed as the foster son of Bhaskar Ramayya, which in turn goes to show that the 1st defendant is having knowledge with regard to the purchase of the plaint schedule property along with some other properties near the plaint schedule property by the plaintiff and 3rd and 4th defendant knowing the same, he attested in Ex.A145 document and in order to have wrongful gain at present he is contending that he succeeded the plaint schedule property as legal heir of Mamidi Butchayya. Further as argued by the learned counsel for the plaintiffs that a foster son will not have any right of succession as per
Sec.3(57) of General Clauses Act, which shows that a son is defined as natural son including an adoptive son but not foster son to succeed the properties of his ancestors. Accordingly here in the instant case D1 being the foster son of Bhaskara Ramayya, he cannot succeed the property by way of succession. It is well settled principle that unless on execution of a will or gift deed, a foster son will not have any right and title in the ancestral property.
42. On the other hand, the plaintiffs through the evidence of PWs 1 to 4 supported by the evidence of PW5 to PW7 proved their title over the plaint schedule property. PW5, who supported the version of the plaintiffs has stated that he got acquaintance with the family of the 1st plaintiff and his brothers, as he resided in the house of 1st plaintiff till the year 1965.
Further he deposed that the 4th defendant filed O.S 41/1988 on the file of I 30
Addl. District Court, Rajahmundry against his brothers, seeking partition of joint family properties supporting the version of PW1 and PW2. Further it is his evidence that during the pendency of the said suit, the joint family properties except the premises bearing D.No.10-1-1, Rajahmundry were partitioned among the 3rd defendant and his brothers outside the Court and were taken jointly by the 1st plaintiff and 4th defendant supporting the case of the plaintiffs and it is his evidence that the 3rd defendant herein sold away the entire house bearing No.5/398 in parts to different persons during the year 1993-1994 out the said property, he sold 38 Sq yards to one
Pedamallu Bala Subrahmaneswari wherein he signed as 1st attestor in the said sale deed supporting the case of the plaintiffs that PW5 is one of the attestor to Ex.A148 and he also identified his signature in the said sale deed.
Furtehr when the said PW5 was cross examined, he in his cross examination has admitted that he knows the 1st plaintiff as he is his maternal uncle and
D3 and D4 are also his maternal uncles but he does not know the 1st defendant but he specifically stated that he knows one Mamidi Butchayya, who is no more at present and he stated that in the year 1963 or 1964 he died. Further he specifically stated that the said Butchayya used to reside by the side of their house till his death. Further he deposed that the son of
Butchyya by name Bhaskararao @ Bhaskara Ramayya has no sons but the said Mamidi Butchayya is the original owner of the said plaint schedule property. Further he deposed in his evidence that to his knowledge and to his remembrance, the said Mamidi Butchayya died after 1962.
43. PW6 he also stated that his father by name Santhilal Jain with
Jugraj purchased an extent of 67.5 Sq. Yards from out of the site and house bearing D.No.5-398 corresponding to new bearing D.No.8-2-39 of
Rajahmundry from Doulatram Vyas i.e., D3 under a registered sale deed dt.06-05-1994 wherein he signed as an attesting witness. He also deposed 31 that his father along with Jugraj purchased another extent of 142 Sq. Yards from out of the above premises from Dowlatram Vyas i.e., 3rd defendant under registered sale deed and the said property was delivered to his father and other purchasers, who purchased two sites for construction of Jain
Temple and one Champalal Jain purchased 139.58 sq. Yards site from
Pedamallu Bala Subrahmaneswary from out of the site and house bearing
D.No.5/398 corresponding to new bearing D.No.8-2-39 of Rajahmundry supporting the version of the plaintiffs that after obtaining delivery of the property under Ex.A8, the 3rd defendant, who is the auction purchaser, has sold away the properties covered under the said documents to different persons. Further the said PW6 in his oral evidence has admitted that he is one of the attesting witness to Ex.A147 and he also admitted in his cross examination that though he is not born in 1960 as he is born in 1970 at
Rajasthan but as the 1st plaintiff is the grandfather to his friend by name
Paramesh, he got acquaintance with the case facts and further he specifically stated in his evidence that Ex.A147 is the only document wherein he signed as identifying witness supporting the case of the plaintiffs. From the evidence of PW5 and PW6, the plaintiffs have proved their case that after obtaining the delivery of the properties covered under Ex.A8 in Court
Auction, the 3rd defendant herein has sold the some properties which are situated near the plaint schedule property.
44. Further as per the evidence of PW7, it is disclosing that he is doing milk dairy business since 1998 and his shop is situated near to the house of the 1st plaintiff and he specifically stated that he know the plaintiffs since 20 years as the premises bearing D.No.9-33-6 at Rajahmundry, which is situated opposite to the house of 1st plaintiff which is intervened by a road. According to his contention, the plaint schedule property is in possession of the plaintiff since 1998 and they continued to be in the 32 possession of the same, till partition of the said properties and further he stated that one Koduri Venkateswara Subhakara Santha Ram purchased 195
Sq. Yards of site together with old madras terraced house from out of the premises bearing No.5-399 corresponding to present D.No.8-2-40,
Rajahmundry from the 4th and 5th defendants and out 195 Sq. Yards himself and his wife Nagamani purchased 137.77 Sq. Yards of site from
Santha Ram as per the registered sale deed dt.20-05-2010 by paying sale consideration and the same was delivered to him on the date of execution of the sale deed. Later, he constructed RCC building and he is carrying on the business in the said property supporting the case of the plaintiffs and as per the recitals in Ex.A149 documents, it is supporting the case of the plaintiffs with regard to the purchase of some part of property by the said PW7.
Further in the cross examination, he admitted that the plaintiffs used to reside in adjacent building to the plaint schedule property and in the plaint schedule property, there is a tiled house prior to the vacant site. Though it was suggested to him that the plaint schedule property belonged to the 1st defendant and the plaintiffs are no way concerned to the said property, he denied to the said suggestion. So the plaintiffs through the evidence of PW1 to PW3 supported by the evidence of PW5 to PW7 supported by Ex.A1 to
Ex.A147 documents, they proved that they acquired title to the plaint schedule property from 1961 onwards and are the lawful owners of the plaint schedule property and they are in possession of the same, in such case, they are entitled for the reliefs sought.
45. So from the above discussion, I am of the view that the plaintiffs through their evidence supported by Ex.A1 to Ex.A147 proved their case that they are the lawful owners of the plaint schedule property and they are in possession and enjoyment of the same, in such case, they are entitled for 33 the relief sought, Accordingly, issue Nos. 1 to 3 are answered in favour of the plaintiffs.
46. Additional Issue:
As far as this issue concerned as per the evidence of PW1 and PW2, it is disclosing that during the pendency of the suit as an understanding arrived by the parties, they partitioned their shares in schedule property amicably. Even though, it is the contention of 1st defendant that when the suit is pending, the plaintiffs cannot partition their share. As per the decision relied on by the learned counsel for plaintiff reported in AIR 1973 SC 171 wherein it was held that the Court can take notice of subsequent events to shorten the litigation and to preserve the rights of both the parties and to sub-serve the ends of justice. Accordingly, here in the instant case, though the plaintiffs have partitioned their shares amicably during the pendency of the suit, the subsequent event will not effect the case of the plaintiffs as the
Court can take judicial notice of the same and the said partition is binding on the plaintiffs. Accordingly, this issue is answered.
47. Issue No.4:
In view of my discussion in issue Nos. 1 to 3 and additional issue No.1, as the plaintiffs through the evidence of PWs 1 to 7 and documents relied on by them have proved that they acquired title to the plaint schedule property in the year 1961 and they are in possession of the same from the date of delivery of the property under Ex.A8 and Ex.A9 and further as per the series of the events put forth by the plaintiffs by way of oral and documentary evidence show that the plaintiffs are in possession and enjoyment of the plaint schedule property as the original owners of the said property.
Accordingly, the plaintiffs are entitled for the relief sought.
48. In the result, the suit is decreed with costs declaring the title of the plaintiffs over the plaint schedule property by holding that the GPA cum 34 sale agreement dated 15-07-2010 executed by the 1st defendant in favour of the 2nd defendant is void and it is ordered to be cancelled and that the defendants 1 and 2 are hereby restrained from interfering with the plaintiffs’ possession and enjoyment over the plaint schedule property and that they are further restrained from alienating or encumbering the plaint schedule property in any manner. The Office is directed to furnish copy of decree along with copy of Ex.A127 to the Sub Registrar, Rajahmundry for notifying in the concerned registers about the cancellation of the above document dated 15-07-2010, on payment of process.
Typed to my dictation by the stenographer, corrected and pronounced by me in the open Court, dated this the 10th day of March, 2020.
JUDGE
0FAMILY COURT-CUM- IX
ADDITIONAL DISTRICT JUDGE,
RAJAMAHENDRAVARAM.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff: PW.1: Vasudev Vyas
PW.2: Manikal Vyas
PW.3: Teki Devi Durga
PW.4: Koduri Venkateswara Subhakara Santharam
PW.5:Tiwari Satyanarayana
PW.6: Vikram S.Jain
PW.7: Setti Jagadish
CW.1 : M.V.Simhachalam
For Defendants:
DW.1: Mamidi Krishna Prasad(Eschewed)
DOCUMENTS MARKED
For plaintiffs:
Ex.A.1 is the sale certificate dated 9-12-1957 in E.P.13/1957 in O.S.15/1954 on the file of Sub Court, Rajahmundry.
Ex.A.2 is the registration extract of Ex.A.1 sale certificate.
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Ex.A.3 is the certified copy of E.A.350/1960 in O.S.115/54 on the file of Sub
Court, Rajahmundry for delivery of the property and orders thereon.
Ex.A.4 is the paper publication in Udayini daily dated 10-2-1961.
Ex.A.5 is the certified copy of warrant in E.A.350/60 in O.S.115/54 dated 27-2-1961.
Ex.A.6 is the certified copy of petition in E.A.350/1960 in O.S.115/54 along with a memo for extension of time to deliver the property.
Ex.A.7 is the certified copy of petition in E.A.350/60 in O.S.115/54 along with a memo for extension of time for delivery of the property.
Ex.A.8 is the certified copy of delivery receipt given by the third defendant in
E.A.350/60 in O.S.155/54
Ex.A.9 is the certified copy of Amin’s report in E.A.350/1960 in O.S.115/54.
Ex.A.10 is the certified copy of delivery receipt in E.A.350/60 in O.S.115/54.
Ex.A.11 is the registration extract of the partition deed dated 6-11-1958 in between the first plaintiff and defendants 3 and 4.
Ex.A.12 is the photo copy of Ex.A.11.
Ex.A.13 is four photographs with negatives.
Ex.A.14 is the memo filed by the 4th defendant.
Exs.A.15 to A.40 are house tax demand notices and receipts issued in the name of Mamidi Butcheyya, but on the back side of tax receipts it was mentioned that the tax was collected from Dowlatram Vyas.
Exs.A.41 to 72 are property tax demand notices and tax receipts issued in the name of Mamidi Butcheyya.
Ex.A.73 is the counterfoil of bank receipt for obtaining a draft in the name of
Municipal Commissioner, Rajahmundry, dated 5-10-1978.
Ex.A.74 is the office copy of letter addressed by the third defendant to the
Commissioner, Rajahmundry Municipality showing sending of a draft for payment of house tax.
Ex.A.75 is the postal acknowledgment.
Ex.A.76 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality, dated 17-4-1979 showing sending of a draft for a sum of Rs.2262-85ps. towards payment of house tax.
Ex.A.77 is the postal acknowledgment.
Ex.A.78 is the is the office copy of letter addressed by the first plaintiff to the Commissioner, Rajahmundry Municipality, dated 19-3-1980 showing sending of a draft for a sum of Rs.2262-85ps. towards payment of house tax.
Ex.A.79 is the postal acknowledgment.
36
Ex.A.80 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality, dated 9-4-1980 showing sending of a draft for a sum of Rs.2262-85ps. towards payment of house tax.
Ex.A.81 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality, dated 9-4-1980 showing sending of a draft for a sum of Rs.2262-85ps. towards payment of house tax.
Ex.A.82 is the postal acknowledgment.
Ex.A.83 is the counterfoil of bank receipt for obtaining a draft for Rs.2262-85 ps. Dated 30-3-1981.
Ex.A.84 is the is the office copy of letter addressed by the first plaintiff to the Commissioner, Rajahmundry Municipality, dated 30-3-1981 showing sending of a postal order for a sum of Rs.2262-85ps. towards payment of house tax.
Ex.A.85 is the postal acknowledgment.
Ex.A.86 is the counterfoil of bank receipt for obtaining a draft for Rs.2262- 85ps. Dated 30-3-1981.
Ex.A.87 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 30-3-1981.
Ex.A.88 is the postal acknowledgment.
Ex.A.89 is the counterfoil of bank receipt dated 13-3-1982 for obtaining a draft for Rs.225-94ps.towards house tax.
Ex.A.90 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 13-3-1982.
Ex.A.91 is the counterfoil of bank receipt dated 28-3-1998 for obtaining a draft in the name of Commissioner, Rajahmundry Municipality for Rs.410/- towards house tax.
Ex.A.92 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 28-3-1998 showing sending of a pay order for Rs.400/- towards house tax.
Ex.A.93 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 28-9-1998 showing sending of a draft for Rs.520/- towards house tax.
Ex.A.94 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 22-3-1999 showing sending of a cheque for Rs.520/- towards house tax.
Ex.A.95 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 23-12-1999 sending showing of a cheque for Rs.520/- towards house tax and water tax.
37
Ex.A.96 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 26-3-2001 showing sending of a cheque for Rs.1674/- towards payment of property tax and water tax.
Ex.A.97 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 18-3-2005 showing sending of a cheque for Rs.1376/- towards house tax.
Ex.A.98 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality showing sending of a cheque for
Rs.172/- towards house tax. Ex.A.99 is the office copy of letter addressed by the first plaintiff to the Commissioner, Rajahmundry Municipality dated 25-3-2006 showing sending of a cheque for Rs.172/- towards house tax.
Ex.A.100 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 30-3-2007 showing sending of a cheque for Rs.344/- towards house tax.
Ex.A.101 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 29-3-2008 showing sending of a cheque for Rs.344/- towards house tax.
Ex.A.102 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 30-3-2009 showing sending of a cheque for Rs.344/- towards payment of house tax.
Ex.A.103 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 11-5-2010 showing sending of a cheque for Rs.344/- towards payment of house tax.
Ex.A.104 is the receipt issued by the Rate Payers Association, Rajahmundry
dated 10-9-1981 to the first plaintiff towards payment of house tax.
Ex.A.105 is the receipt issued by the Rate Payers Association, Rajahmundry
dated 16-9-1981 to the third defendant towards payment of house tax.
Ex.A.106 is the receipt issued by the Rate Payers Association, Rajahmundry
dated 28-3-1984.
Ex.A.107 is the receipt issued by the Rate Payers Association dated 28-3- 1984.
Ex.A.108 is the receipt issued by the Rate Payers Assocaition, Rajahmundry to the first plaintiff dated 25-3-1985.
Ex.A.109 is the receipt issued by the Rate Payers Association, Rajahmundry
dated 13-9-1988.
Ex.A.110 is the receipt dated 5-2-1986 for Rs.1546-26ps.
Ex.A.111 is the receipt issued by the Rate Payers Association, Rajahmundry to the first plaintiff dated 25-8-1986 for Rs.1546-26ps.
38
Ex.A.112 is the receipt issued by the Rate Payers Association, Rajahmundry to the first plaintiff dt. 28-03-1987 for Rs.1546-26ps.
Ex.A113 is the receipt issued by the Rate Payers Association, Rajahmundry to the first plaintiff dt.12-03-1988 for Rs.1546-26ps.
Ex.A.114 is the receipt issued by the Rate Payers Association, Rajahmundry to the first plaintiff dated 6-9-1988 for Rs.1546-26ps.
Ex.A.115 is the receipt issued by the Rate Payers Association, Rajahmundry to the first plaintiff for Rs.1546-26ps.
Ex.A.116 is the receipt issued by the Rate Payers Association to the first plaintiff for Rs.1546-26ps.
Ex.A.117 is the receipt issued by the Rate payers Association, Rajahmundry to the first plaintiff for Rs.1546-26ps. Dated 27-2-1990.
Ex.A.118 is the receipt issued by the Rate Payers Association, Rajahmundry to the first plaintiff dated 27-9-1991 for Rs.1185-30ps.
Ex.A119 the receipt issued by the Rate Payers Association, Rajahmundry to the first plaintiff dated 30-3-1992 for Rs.1185-30ps
Ex.A.120 is the receipt issued by the Rate Payers Association, Rajahmundry to the first plaintiff dated 10-10-1992 for Rs.1181-30ps.
Ex.A.121 is the receipt issued by the Rate Payers Association, Rajahmundry to the first plaintiff for Rs.1181-30ps. Dated 26-3-1993.
Ex.A.122 is the house tax demand notice issued in the name of Mamidi
Butcheyya.
Ex.A.123 is the office copy of Revision Petition filed by the first plaintiff
before the Commissioner, Rajahmundry Municipality dated 30-9-1993.
Ex.A.124 is the endorsement of the Commissioner, Rajahmundry
Municipality.
Ex.A.125 is the office copy of letter addressed by the first plaintiff to the
Commissioner, Rajahmundry Municipality dated 4-10-2010 showing sending of a cheque for Rs.172/- towards house tax.
Ex.A.126 is the certified copy of registered partition deed dated 25-8-2011 between the first plaintiff and his sons plaintiffs 2 to 4.
Ex.A.127 is the registration extract of the sale agreement cum G.P.A.
executed by the first defendant in favour of the 2nd defendant dated 15-7- 2010.
Ex.A.128 is the copy of endorsement dated 8-11-2011 issued by the Public
Information Officer, Municipal Corporation, Rajahmundry.
Ex.A.129 is the copy of endorsement dated 30-12-2011 issued by the
R.D.O., Rajahmundry dated 30-12-2011.
39
Ex.A.130 is the copy of endorsement issued by the Commissioner,
Rajahmundry Municipal Corporation.
Ex.A.131 is the copy of letter addressed by the public Information Officer,
Rajahmundry Municipal Corporation to the 2nd plaintiff.
Ex.A.132 is the copy of letter addressed by the Commissioner, Rajahmundry
Municipal Corporation to the 2nd plaintiff.
Ex.A.133 is the letter addressed by the R.D.O. to Parameswara Vyas dated 18-12-2013.
Exd.A.134 is the letter addressed by the Health Officer, Rajahmundry
Municipal Corporation to the R.D.O. dated 13-12-2012.
Ex.A.135 is the letter addressed by the R.D.O. to Parameswar Vyas dated 18-12-2013.
Ex.A.136 is the copy of letter addressed by the Public Information Officer,
Rajahmundry Municipal Corporation to Parameswara Vyas dated 25-12- 2013.
Ex.A.137 is the copy of endorsement of R.D.O., Rajahmundry to
Parameswara Vyas, dated 26-1-2014.
Ex.A.138 is the letter addressed by the R.D.O., Rajahmundry to
Parameswara Vyas dated 18-7-2014.
Ex.A.139 is the letter addressed by the Health Officer, Rajahmundry
Municipal Corporation to the R.D.O., Rajahmundry dated 4-3-2014.
Ex.A.140 is the copy of letter addressed by the R.D.O., Rajahmundry to
Parameswra Vyas.
Ex.A.141 is the certified copy of the petition in H.R.C.M.P. 38 of 1963 on the file of the House Rent Controller, Rajahmundry.
Ex.A.142 is the certified copy of judgment in C.M.A. 6 of 1965 on the file of
Additional District Court, Rajahmundry.
Ex.A.143 is the certified copy of Decree in C.M.A.6/1965 on the file of
Additional District Court, Rajahmundry.
Ex.A.144 is the certified copy of delivery receipt in E.P.261/1966 in
H.R.C.M.P.38/1963.
Ex.A.145 is the registration extract of the sale deed dated 20-10-2007 executed by D.5 and D.5 in favour of P.W.4.
Ex.A.146 is the registration extract of the sale deed dated 10-9-1993 executed by the third defendant in favour of Smt.P. Bala Subrahmanyeswari.
Ex.A.147 is the registration extract of sale deed dated 6-5-1994 executed by the third defendant in favour of Shantilal.
40
Ex.A.148 is the registration extract of sale deed dated 30-6-1994 executed by the third defendant in favour of Smt. P. Bala Subrahmanyeswari.
Ex.A.149 is the registration extract of the sale deed dated 20-5-2020 executed by P.W.4 in favour of P.W.7.
Ex.X.1 is the endorsement given by the Divisional Administrative Officer, Sub Collector Office, Rajahmundry dated 7-3-2018.
Ex.X.2 is the letter addressed by the Health Officer, Rajahmundry Municipal Corporation to the R.D.O. dated 13-12-2012.
Ex.X.3 is the letter addressed by the R.D.O., to the Health Officer, Rajahmundry Municipal Corporation.
Ex.X.4 is the endorsement dated 26-1-2014 by the R.D.O., Rajahmundry to Parameswara Vyas.
Ex.X.5 is the letter addressed by the Health Officer, Rajahmundry Municipal Corporation to the R.D.O., Rajahmundry dated 11-3-2014.
Ex.X.6 is the letter addressed by the R.D.O., to the Health Officer, Rajahmundry Municipal Corporation dated 20-3-2014.
Ex.X.7 is the endorsement dated 6-6-2012 of the R.D.O., to Parameswra Vyas.
Ex.X.8 is the letter addressed by the Sub Collector, Rajahmundry to this Court.
Ex.X.9 is the proceedings of the Commissioner, Rajahmundry Municipal Corporation.
Ex.X.10 is the endorsement dated 8-11-2011 of the Public Information Officer to the first plaintiff.
Ex.X.11 is the endorsement dated 8-2-2012 of the Public Information Officer, RajahmundryMunicip0al Corporation to the first plaintiff.
Ex.X.12 is the information given by the Public Information Officer, Rajahmundry Municipal Corporation to the 2nd plaintiff dated 4-6-2013.
Ex.X.13 is the letter addressed by the Health Officer, Rajahmundry Municipal Corporation to the R.D.O., Rajahmundry dated 15-7-2013.
Ex.X.14 is the letter addressed by the Public Health Officer, Rajahmundry Municipal Corporation to Parameswar Vyas, dated 25-12-2013.
For defendants: Nil
JUDGE.
41
Date of presentation 06-10-2010. Date of filing 19-10-2010
IN THE COURT OF JUDGE, FAMILY COURT CUM IX ADDITIONAL DISTRICT
AND SESSIONS COURT: EAST GODAVARI; RAJAMAHENDRAVARAM. Present: Smt. G.Malathi, Judge, Family Court-cum- IX Additional District and Sessions Court, Rajamahendravaram.
Tuesday, the 10th day of March, 2020.
Original Suit No.107/2010
Between:
1.Manaklal Vyas, S/o late Parasuram Vyas, Hindu, Aged 85 years, Property, Nalam Bheemaraju St. Rajahmundry.
2.Vasudev Vyas S/o Manaklal Vyas, Hindu, Aged 59 years, Property, Nalam Bheemaraju St, Rajahmundry
3.Motilal Vyas S/o Manaklal Vyas, Hindu, Aged 57 years, property, Nalam Bheemaraju St, Rajahmundry.
4.Bhavani Sankar Vyas S/o Manaklal Vyas, Hindu, Aged 50 years, Property,
Nalam Bheemaraju St. Rajahmundry. ....Plaintiffs
AND
1.Mamidi Krishna Prasad S/o Gopala Krishna Murthy, Hindu, Aged 38 years, 30-42-3/2, Near Devi Public School, Chandragiri Colony, Neredumet Road, Safaiguda Secuderabad.
2.Kaparti Sivalingam S/o Siddhayya, Hindu, Aged 49 years, D.No.3-14-1/B, Srinivasapuram, Ramanthpur, Hyderabad.
3.Doulatram Vyas S/o late Parasuram Vyas, Hindu Aged 87 years, Property, D.No.3-3-387/2, Dowlat Complex, Opp: Mahankali Police Station, Secunderabad.
4.Srivallabh Vyas S/o late Parasuram Vyas, Hindu, Aged 83 years, C/o Sivakaran Harikaran, D.No.10-15-25, Pottiswamy St, Vijayawada – 1
5.Vedhavati Ojha, W/o Sampat Kumar Ojha, Hindu, Aged 40 years, Property & Husband protection, Plot No.124, Jyothi Nagar, Ring Road, Mehadipatnam, Hyderabad. (5th defendant is added as LR of deceased 4th defendant as per orders
dated 24-03-2014 in IA 414/2012)
6.Parvathi Joshi W/o Saratchandra Joshi, Hindu, Aged 64 years, D.No.17-32-16, Anu Plaza, Lalitha Nagar, Rajahmundry. (6th defendant is added as LR of deceased 3rd defendant as per order
dated 24-03-2014 in IA 785/2012)
..... Defendants
42
Suit for declaration of plaintiffs title over the plaint schedule property while holding that the G.P.A. cum sale agreement dated 15-7-2010 executed by the first defendant in favour of the 2nd defendant is void and to notify the same in the concerned registers; for consequential permanent injunction restraining the defendants 1 and 2, their men and agents etc., from in any manner interfering with the plaintiffs possession and enjoyment over the schedule property; for a prohibitory injunction restraining the defendants 1 and 2 from alienating or encumbering the schedule property in any manner or in any way dealing with it and for costs of the suit.
The value of the suit:
The relief of declaration and consequential injunction is valued under Sec.24(b) of APCF & S.V Act at ½ of the market value of the schedule property.
Market value of the schedule property Rs.44,19,000/- ½ of the market value of schedule property comes to Rs.22,09,500/-
Upon which a court fee of Rs.24,526/- is paid under Sec. 24(b), Sch-I, Article1(c) of A.P.C.F. & S.V.Act .
The relief of permanent prohibitory injunction is valued at Rs.20,000/-
Upon which a court fee of Rs.1386/- is paid under Sec.26(c), Sch-I, Article1(c) of A.P.C.F. & S.V.Act .
Total value of the suit is Rs.22,29,500/- Total court fee paid Rs.25,912/-
Cause of action for the suit arose on 06-11-1957 when the 3rd defendant for himself and on behalf of the 1st plaintiff and 4th defendant and their mother purchased the schedule property, among other properties
in the court auction in EP13/1957 in O.S 115/1954 (Sub Court,
Rajahmundry) District Court, Rajahmundry and on 09-12-1957, when the sale was confirmed and on 16-3-1961, when the schedule property was taken delivery among other properties and since then, the 1st plaintiff and his brothers and their mother continued in possession of the schedule property in their own right as absolute owners and during the pendency of the suit in O.S 41/1988 on the file of I Addl. District Court, Rajahmundry in the partition of the joint properties, amongst the 1st plaintiff and his brothers outside the court, the schedule property fell to the share of the 1st plaintiff and the 4th defendant and thereafter in partition in between them fell to the share of the 1st plaintiff, and since then, the 1st plaintiff has been in possession and enjoyment of the same in his own right as an absolute owner on 15-07-2010, when the 1st defendant executed a registered sale agreement cum general power of attorney in favour of the 2nd defendant and defendants 1 and 2 are making attempts to forcibly, trespass into the schedule property and are making preparations to transfer the schedule property in favour of others and at Rajahmundry, where the schedule property is situated, within the jurisdiction of this Hon’ble Court.
43
This suit coming up before me on 10-01-2020for final hearing in the presence of Sri I.V.Ramana Murthy, advocate for the plaintiff and of Sri Ch.A.S.Vasu Advocate for D1, Sri S.Rama Krishna, Advocate for D2, Sri Ch.V.R Advocate for D6 and D3 to D5 remained exparte, and the matter having stood over for consideration till this day, this court doth order and decree as follows;
1.That the title of the plaintiffs over the plaint schedule property be and hereby declared by holding that the GPA cum Sale Agreement
dated 15-07-2010 executed by the 1st defendant in favour of the
2nd defendant is void and ordered to be cancelled.
2.That the defendants 1 and 2 are hereby restrained from interfering with the plaintiffs’ possession and enjoyment over the plaint schedule property;
3.That the defendants 1 and 2 are further restrained from alienating or encumbering the plaint schedule property in any manner;
4.That the defendants do pay the plaintiffs a sum of Rs.1,60,074/- towards costs bearing their own costs of Rs.Nil.
Copy of schedule attached herewith
Given under my hand and the seal of this court, this the 10 th day of March, 2020.
JUDGE
FAMILY COURT-CUM- IX
ADDITIONAL DISTRICT JUDGE,
RAJAMAHENDRAVARAM.
PARTICULARS OF COSTS
For plaintiffs: For Defendants:
Stamp on vakalath: Rs. 2-00 No costs memo filed. Stamp on plaint: Rs. 25,912-00 Stamp on petitions Rs. 20-00 Stamp on process: Rs. 1,200-00 Advocate fee: Rs. 1,00,000-00 Jr. Advocate Fee Rs. 30,000-00 Publication Charges Rs. 1,440-00 Commissioner Fee: Rs. 1,500-00 ----------------- Rs. 1,60,074-00 -------------------
JUDGE.