1 O.S.NO.518/2012
IN THE COURT OF THE XIII ADDL. DISTRICT JUDGE :: AT GAJUWAKA
PRESENT: Sri G. SATYA PRABHAKARA RAO, II Addl. Spl. Judge for CBI Cases, Visakhapatnam, FAC : XIII Addl. District Judge,
GAJUWAKA.
MONDAY, THE 11TH DAY OF SEPTEMBER, 2017
O.S.No.518/2012
Between :-
1. Dasari Appala Naidu, s/o late Suryanarayana, Hindu, aged 50 years, r/at D.No.28-6-10, RH Colony, Vadlapudi, Visakhapatnam.
2. Dasari Pydi Raju, s/o late Suryanarayana, Hindu, aged 43 years, r/at D.No.28-6-9, RH Colony, Vadlapudi, Visakhapatnam.
3. Dasari Suri Babu, s/o late Suryanarayana, Hindu, aged 38 years, r/at D.No.28-6-7, RH Colony, Vadlapudi, Visakhapatnam.
4. Medisetti Lakshmi, w/o Appa Rao, Hindu, aged 46 years, r/at Sirasapalli Village, Anakapalli Mandal, Visakhapatnam.
5. Illapu Ramulamma, w/o Bogesh, Hindu, aged 42 years, r/at Venkata Puram, Gopalapatnam, Visakhapatnam.
….. Plaintiffs
And :-
1. Sanapathi Narayanamma, w/o Apparao, Hindu, aged 55 years, r/at D.No.28-12-9, RH Colony, Vadlapudi, Visakhapatnam.
2. Bonda Venkata Lakshmi, d/o Apparao, Hindu, aged 25 years, r/at D.No.28-12-9, RH Colony, Vadlapudi, Visakhapatnam.
3. Dasari Poli Raju, s/o late Suryanarayana, Hindu, aged 40 years, r/at D.No.28-12-8, RH Colony, Vadlapudi, Visakhapatnam.
4. The Chairman and Managing Director (CMD), Steel Plant, Visakhapatnam.
5. The Special Officer, Land Acquisition, Steel Plant, Behind Collectorate, Visakhapatnam.
6. The State Represented by the District Collector, Visakhapatnam.
7. Gopisetti Venkata Rao, s/o Appa Rao, Hindu, aged 35 uyears, EMD Steel Plant, E.No.106810, Visakhapatnam.
…..Defendants
This suit coming before me on 04-08-2017 for final hearing
before me in the presence of Sri B. Satyanarayana, Advocate for the
plaintiff and of M/s. V. Eswara Rao, G. Appa Rao, M. Shanthi & K. Rajesh, Advocates for the defendants 1 & 2 and of M/s.Saibaba & Srinivas, Advocates for 4th defendant and of Sri K.A. Lakshmana Rao, Advocate for 7th defendant and the defendants 3, 5 & 6 are called absent and set exparte and having stood over for consideration, till this day, this court delivers the following:-
J U D G M E N T
This is a suit filed by plaintiffs against defendants to declare that plaintiffs and 3rd defendant are absolute owners of schedule property 2 O.S.NO.518/2012 by directing the defendants 1 & 2 to vacate and deliver vacant possession of schedule property; to pass an order by directing the defendants 1 & 2 to pay damages of Rs.3,20,000/- from 01.04.2008 to 30.11.2010 and also to pay the same in future till vacating the schedule property; to declare that the appointment of 7th defendant in Steel Plant by 4th defendant is illegal and against law and direct the defendants 4 to 6 to remove the 7th defendant from service and costs of suit.
2. Contention of plaintiffs, in concise, is this :
Plaintiffs submit that as per rehabilitation card a house measuring 107sq.yds. was allotted in the name of Dasari Suryanarayana in plot
No.1519 of RH Colony, Vadlapudi; the plaintiffs along with the 3rd defendant and Dasari Suryanarayana constructed a slabbed house and used to enjoy the same with absolute rights till the death of Suryanarayana; Dasari
Suryanarayana is father of plaintiffs 1 to 5 and 3rd defendant; after the death of Suryanarayana as the plaintiffs are staying in various places to get their daily bread, during November, 2003 the plaintiffs and 3rd defendant permitted the defendants 1 & 2 who are mother and daughter to stay in the suit schedule building as licencees in view of close relationship between the plaintiffs and defendants 1 & 2; the plaintiffs and 3rd defendant are owners of schedule property which is heritable but not alienable; while it was so, plaintiffs and 3rd defendant requested the defendants 1 & 2 to vacate and deliver vacant possession of schedule property as per the understanding between them; but, defendants 1 & 2 simply postponed the matter; thereby, plaintiffs held mediation during first week of October, 2007 in the presence of elders viz., Mindi Govinda and
Middi Tatunaidu; the defendants 1 & 2 did not heed the said advise; the defendants 1 & 2 are liable to pay damages as prayed by plaintiffs; under
Rehabilitation Scheme only the legal heirs are entitled for employment in 3 O.S.NO.518/2012 the Steel Plant which is under the control of 4th defendant; taking advantage of the innocence of the plaintiffs and also taking advantage of the oldage of late Suryanarayana, 7th defendant has exercised his influence over defendants 4 to 6 under Rehabilitation Scheme and got an employment in Steel Plant; the said employment is illegal and against law and hence the suit.
3. Contention of defendants 1 & 2, in precise, is this :
Defendants 1 & 2 submit that the Steel Plant Land Acquisition
Authority acquired the thatched house of Gokada Pydiamma in the year 1984 situate in S.No.97/88 at Vadlapudi village, Gajuwaka and Dasari
Suryanarayana who is brother of Gokada Pydiamma living in the same house and the land acquisition authority did not pay any compensation to said Suryanarayana as he was residing in the house of Pydiamma, but, the
Government issued Rehabilitation Card in favour of Dasari Suryanarayana and allotted house plot bearinig No.1519 having an extent of 107sq.yds., at Vadlapudi, Gajuwaka; Dasari Suryanarayana and his wife were separated due to disputes and the said Dasari Suryanarayana used to reside along with his sister Pydiamma and the plaintiffs and 3rd defendant are living along with their mother Dasari Atchiamma; Steel Plant land
Acquisition Authority acquired the land and house of Dasari Suryanarayana and paid compensation to plaintiffs 1 & 2, 3rd defendant and their mother by name Atchiamma and the Land Acquisition Authority issued
Rehabilitation Cards and allotted house plots to plaintiffs 1 & 2 and 3rd defendant and their mother viz., Atchiamma; the land acquisition authority issued house patta through Mandal Revenue Officer, Gajuwaka in the year 1987 to Dasari Suryanarayana and he obtained land from housing board,
Visakhapatnam by pledging his house patta for the construction of the house and his sister Pydiamma spent huge amounts for construction of 4 O.S.NO.518/2012 house; 1st defendant and her mother Pydiamma looked after the welfare of
Dasari Suryanarayana by spending huge amounts during his life time; thereby, Suryanarayana executed a Will, dt.04.03.1987 in favour of 1st defendant who is his niece; subsequently Suryanarayana died on 07.05.1997; 1st defendant gifted the said property to 2nd defendant in the year 1998 and delivered possession of the said land and eversince 2nd defendant has been enjoying the said property with absolute rights; 2nd defendant has been paying house tax for schedule property since year 1998 to Gajuwaka Municipality; plaintiffs and 3rd defendant have no right over schedule property; the suit is filed to grab schedule property from these defendants and therefore, the suit is liable to be dismissed.
4. Contention of 4th defendant, in brief, is this :
The acquisition of properties and issuance of Rehabilitation Cards to the displaced persons is pertaining to defendants 5 & 6 and this defendant is nothing to do with the same; further, any clarification regarding genuineness of Rehabilitation Card of 7th defendant comes under the purview of defendants 5 & 6 only; this defendant is no way concerned with the same; there is no cause of action to file the suit and the suit is liable to be dismissed.
5. Contention of 7th defendant, in nut-shell, is this :
7th Defendant submits that his mother Gopisetti Appalanarasamma was the eldest daughter of late Dasari Suryanarayana who happened to be father of plaintiffs and 3rd defendant; Dasari Suryanarayana had some disputes with his wife Atchiamma and thereby their marital relationship got strained long back and he separated himself from his wife and started living in the house of his sister Pydiamma; Steel Plant Land Acquisition
Authorities acquired the thatched house of Pydiamma in the year 1984 situate in S.No.97/88 of Vadlapudi village and as the said Dasari 5 O.S.NO.518/2012
Suryanarayana was also living in the same house, he was also issued
Rehabilitation Card besides allotted a plot having an extent of 107 sq.yds., in Vadlapudi village by Government; said Dasari Suryanarayana during his life time constructed a house in the plot allotted to him with the financial aid and assistance of 1st defendant and mother of 1st defendant; 1st defendant looked after the welfare of Suryanarayana during his life time; in the year 1987 maternal grandfather of 7th defendant viz., Dasari
Suryanarayana made a written representation to Special Officer, Steel
Plant, Visakhapatnam requesting to change his Rehabilitation Card in favour of 7th defendant and accept the nomination of 7th defendant for employment purpose in Steel Plant and the Special Officer, Visakhapatnam
Steel Plant issued proceedings dated 01.07.1987 by accepting the nomination in favour of 7th defendant; the present suit is filed for an illegal gain without there being any bonafides on the part of plaintiffs and therefore, the suit is liable to be dismissed with costs.
6. Defendants 3, 5 & 6 are allowed them to set exparte.
7. Basing on rival contentions put-forth by both the parties, following issues have been settled for trial :
1. Whether the plaintiffs and 3 rd defendant are entitled for
declaration that they are the absolute owners of the schedule
property as prayed for?
2. Whether the plaintiffs are entitled to vacate the
defendants 1 & 2 and deliver vacant possession of the suit
schedule property?
3. Whether the plaintiffs are entitled for damages of
Rs.3,20,000/-?
4. Whether the plaintiffs are entitled for declaration that the appointment of 7 th defendant in Steel Plant is illegal?
6 O.S.NO.518/2012
5. Whether the suit is barred by limitation?
6. To what relief?
8. On behalf of plaintiffs, PW1 to PW3 are examined and Exs.A1 to
A11 are marked. On behalf of defendants, DW1 to DW4 are examined and
Exs.B1 to B9 are marked.
9. Heard learned counsel for both parties and perused the record and written arguments submitted on behalf of 7th defendant.
10. Issues 1, 2 & 4 : Since these three issues are inter-related in nature, they are taken up together for just and proper adjudication of the matter.
11. Before ponder seriously over the issues at hand, it may be observed herein that the pleadings of plaintiffs with regard to their demand over defendants 1 & 2 to vacate from plaint schedule property is not supported by any piece of evidence. However, as per plaintiffs they have also made mediation during first week of October, 2007 in the presence of elders viz., Mindi Govinda and Middi Tatunaidu. Therefore, evidence of said two mediators would play a crucial role and decide the present issues.
But, to the dismay of the case of plaintiffs the alleged mediators are not examined on behalf of plaintiffs. The said inaction on the part of plaintiffs may create a cloud of suspicion over the contention of plaintiffs.
12. It is an appropriate place to point out that the burden of proof on the pleadings should not be confused with the burden of adducing evidence which is described as “Shifting”. The burden of proof on the pleadings never shifts; it always remains constant. But, in the present case, the pleading of plaintiffs is very uncertain and vague.
13. Not only the pleadings but also the evidence of 2nd plaintiff who is examined as PW1 is very vague and silent with regard to said important aspects. As per para 5 of chief examination of PW1 “While it was so he 7 O.S.NO.518/2012 requested the defendants 1 & 2 to vacate and deliver vacant possession of schedule property as per the understanding between them”. So, chief examination of PW1 is also fully and completely silent when the plaintiffs in the first instance demanded the defendants 1 & 2 to vacate and deliver vacant possession of schedule property. The said silence is not justified under law and fact.
14. On the other hand, a glance over cross-examination of PW1 made on behalf of defendants would disclose the weakness in the contention of plaintiffs as follows :
“The Government constituted a Sub-Employment Exchange
at Gajuwaka for displaced persons; it is true as and when Steel
Plant notifies any vacancy the said employment exchange may
sponsor the names as per the rules and selection process by the
Steel Plant; he is not aware that the name of 7 th defendant was
referred by the Sub-Employment Exchange and that 7 th defendant
was appointed as an employee in Steel Plant; Steel Plant
authorities issued Rehabilitation Cards to them; 1 st plaintiff is his
elder brother and that he was also given a Rehabilitation Card by
the concerned authorities and also allotted a plot bearing No.1610
having an extent of 107sq.yds.; he was also given a Rehabilitation
Card bearing No.367 by the concerned authorities; he was allotted
a plot bearing No.1609 having an extent of 107sq.yds.; similarly
3 rd defendant was also given Rehabilitation Card bearing No.368
and he was allotted a plot bearing No.1608 having an extent of
107sq.yds.; his mother Dasari Atchiamma was also given a
Rehabilitation Card bearing No.677 and she was allotted a plot
No.1839; he got constructed a house in his plot; so also 1 st
plaintiff, 3 rd plaintiff and 3 rd defendant got constructed their
8 O.S.NO.518/2012
houses; his mother transferred her Rehabilitation Card to another
person; Rehabilitation Card given to his mother is pertaining to
the house of her mother that was acquired by Steel Plant
authorities; he cannot say the date and year of the allotment of
patta to his father; he does not remember in which year his father
constructed his house; Suryanarayana constructed his house by
obtaining loan from HUDCO by mortgaging the patta; 1 st defendant
is niece of his father; his father passed away on 07.05.1997; he
does not know whether his father had executed any Will or
transferred the property to anybody by executing any document;
he does not know whether 1 st defendant gifted the property to 2 nd
defendant in the year 1998 and delivered the possession to her; it
is true 2 nd defendant has been in physical possession and
enjoyment of said house since 1998; it is true 2 nd defendant has
been paying the house tax to the said house by mutating her
name in municipal records; he does not know the defence taken by
defendants 1 & 2 in the present suit; he also does not know about
the documents filed along with written statement by defendants 1
& 2; he does not know whether electricity connection in respect of
said house is in the name of 2 nd defendant; they came to know in
the year 1997 itself that Ex.A1 Rehabilitation Card was transferred
in favour of 7 th defendant and he came to know in the year 1997
itself that 7 th defendant has got job through Rehabilitation Card
and basing on nomination of their father”.
15. We cannot forget that burden of proof is generally on plaintiffs.
This is a suit filed by plaintiffs seeking the reliefs of declaration; recovery of possession and damages. Defendants have been seriously denying right, claim and interest of plaintiffs over the reliefs prayed by plaintiffs. The 9 O.S.NO.518/2012 strict meaning of the words “Onus probandi” is that if no evidence is given by the party on whom the burden is cast the issue must be found against him. I find no rhyme and reason in the evidence adduced by PW1 since his cross-examination discloses the lacunae on the part of claim made by plaintiffs against defendants.
16. Best evidence is not produced by plaintiff :
Where the best evidence is not produced, the court is entitled to draw an adverse inference and the advantage of the doctrine of onus of proof cannot be taken. The reason for my observation is that as per plaintiffs they used to reside in schedule house property till November, 2003 and in November, 2003 they permitted defendants 1 & 2 who are mother and daughter to stay in schedule house property as licencees. But, the plaintiffs did not file any documentary proof to substantiate the said contention.
17. Hence, 4th plaintiff who is examined as PW2 is also expressed his ignorance on material points besides admitting the defence of defendants from his cross-examination as follows :
“She cannot say the survey number of the suit schedule
property; she does not know Rehabilitation Card Number of his
father; she does not know plot number of the suit schedule
property; she does not know in which year his father got the
schedule property; defendants 1 & 2 are in possession of suit
schedule property since 30 years; it is true Rehabilitation numbers
allotted to her brothers after acquisition of the land by Steel Plant
authorities; no plot is allotted to her mother at the time of
issuance of Rehabilitation number in her favour; no plots are
allotted in favour of her brothers eventhough Rehabilitation
numbers are allotted to them; she cannot say the door number of
10 O.S.NO.518/2012
the suit schedule property; it is true defendants 1 & 2 have
discharged the loan amount to HUDCO in respect of suit schedule
property; the tax receipts are standing in the name of 2 nd
defendant in respect of suit schedule property; so also the
electricity bills are standing in the name of 2 nd defendant; it is true
7 th defendant is working in Steel Plant since 1987 and that she
knows that 7 th defendant joined in service in the year 1987.”
18. Thus, evidence of PW2 also fully and completely ruins the case of plaintiffs from all angles.
19. Hence, issues 1, 2 & 4 are answered against the plaintiffs and in favour of defendants.
20. Issues 3 & 5 : At this juncture, if we recollect evidence of PWs 2 & 3, as per PW1 defendants 1 & 2 have been residing in suit schedule house property since 1979 and as per the cross-examination of PW2 the defendants 1 & 2 have been residing in plaint schedule house property for the last 30 years. It is an appropriate place to make a mention herein that limitation for filing a suit for recovery of possession under Article 65 in Part-
V of Indian Limitation Act is 12 years. Therefore, the present suit is barred by law and limitation.
21. Further, when it is established from the evidence of PWs 1 & 2 that they are not entitled to the relief of any declaration, the question of awarding damages in their favour does not arise.
22. PW3 is a third party to the proceedings. His evidence also does not create any confidence over the contention of plaintiffs. In this context, cross-examination of PW3 made on behalf of defendants would disclose that “He does not know the survey number and door numbers
standing for the property in the name of 1 st plaintiff, 2 nd plaintiff
and 3 rd defendant which was acquired by Steel Plant and issued
11 O.S.NO.518/2012
the Rehabilitation Cards in their favour; nearly 10 years back
Atchiamma died; Suryanarayana is living with his sister after the
death of his wife Atchiamma; Dasari Suryanarayana died while he
was living with his sister; he does not know whether Dasari
Suryanarayana executed any Will during his life time or not; it is
true the electricity connection stands in the name of 2 nd defendant
for the schedule property; nearly 10 years back Dasari
Suryanarayana sold his Rehabilitation Card to 7 th defendant; 7 th
defendant is working in the Steel Plant for the last 20 or 25 years;
7 th defendant secured the employment on the basis of
Rehabilitation Card; it is true Dasari Suryanarayana transferred
his Rehabilitation Card in favour of 7 th defendant and on that
reason 7 th defendant secured the employment in Steel Plant and it
is true Dasari Suryanarayana staying with his sister Pydiamma and
in view of both of them are living jointly the Rehabilitation Card
was issued by the Steel Plant in favour of Dasari Suryanarayaan as
well as for vacant site”.
23. Therefore, from the evidence of PW3 it is crystal clear that 7th defendant is working in Steel Plant for the last 25 years and the plaintiffs did not make any claim or question the Steel Plant authorities till the date of issuing notices against the defendants and the said silence on the part of plaintiffs for a long time even after securing job by 7th defendant is creating a shadow of doubt over the claim relied upon by plaintiffs.
24. 1st Defendant is examined as DW1, son of 1st defendant is examined as DW2, second attestor of Ex.B3 Will is examined as DW3 and lastly 7th defendant is examined as DW4. The said witnesses are cross-examined at length on behalf of plaintiffs; but, nothing credit is 12 O.S.NO.518/2012 elicited during the course of cross-examination to support the contention of plaintiffs over schedule property.
25. Further, evidence of DW1 & DW2 clinchingly shows that Ex.B3
Will is enforceable under law and that deceased Suryanarayana is having every right to execute the said Will as contended by defendants 1 & 2.
Evidence of DW3 who is second attestor of Ex.B3 Will duly supports the defence of defendants 1, 2 & 7 without any divergence. Furthermore, evidence of 7th defendant who is examined as DW4 would disclose that he is having every right to get a job in Visakhapatnam Steel Plant and that there are no grounds to cancel his employment under Visakhapatnam Steel
Plant.
26. Aspect of possession : Admittedly, by the date of filing of present suit, even as per plaintiffs, defendants 1 & 2 are in possession and enjoyment of schedule house property. It is the contention of plaintiffs that the possession of defendants 1 & 2 is only as licencees. In legal sense licencee means “One who is on the property of another by authority of law or by the consent or invitation of the possessor”.
27. It is not an out of place to point out herein that the two legal notices got issued by plaintiffs under Ex.A2 dated 10.10.2007 and Ex.A8
dated 30.04.2012 are quite inconsistent one with another.
28. Hence, I am of the considered view that the plaintiffs are not entitled for any damages muchless Rs.3,20,000/- as claimed by them and that the suit is out and out barred by law of limitation.
29. Hence, these two issues are answered against plaintiffs and in favour of defendants.
30. Issue No.6 : In the present matter plaintiffs are permitted to prosecute the matter without paying any court fees as can be seen from 13 O.S.NO.518/2012 order of court dated 21.09.2012. Therefore, the plaintiffs are liable to pay the court fees payable by them.
31. To sum up, I am of the considered view that the plaintiffs are not entitled to the reliefs of declaration, recovery of possession and damages.
Further, the plaintiffs are liable to pay the court fees.
32. In the result, the suit filed by plaintiffs is dismissed; but, in the present set of facts and circumstances of the case, both parties are directed to bear their respective costs. But, the plaintiffs are liable to pay court fees of Rs.17,038/- (rupees seventeen thousand and thirty eight only), failing which, the same will be recovered from them under Revenue
Recovery Act. Address a letter to District Collector, Visakhapatnam in this regard.
Dictated to the Stenographer Grade-I, transcribed by her, corrected
and pronounced by me in open Court, this the 11th day of September, 2017.
II Addl. Spl. Judge for CBI Cases, Vsp, FAC : XIII ADDL. DISTRICT JUDGE,
GAJUWAKA.
APPENDIX OF EVIDENCE
Witnesses examined for
Plaintiffs :- Defendants:-
P.W.1 : Dasari Pydi Raju DW1 : S. Narayanamma P.W.2 : Medisetti LakshmiDW2 : S. Kanakarao P.W.3 : Karri Appa RaoDW3 : D. Nook Raju DW4 : G. Venkata Rao
Exhibits marked for :- Plaintiffs :-
Ex.A.1 : Rehabilitation Card issued by Spl. Deputy Collector, Unit No.III, Steel Plant, Visakhapatnam in favour of D.Suryanarayana (father of PW1) Ex.A.2 : Office copy of registered lawyer notice, dt.10.10.2007 issued by plaintiffs to defendant Ex.A.3 : Acknowledgment of 1st defendant Ex.A.4 : Returned registered cover of D2 Ex.A.5 : Registered lawyer notice, dt.29.09.2007 issued by plaintiffs to D4 to D7 14 O.S.NO.518/2012
Ex.A.6 : Three acknowledgments of D4 to D7 Ex.A.7 : Order of Hon’ble High Court in writ petition No.3958/08, dt.20.11.09 Ex.A.8 : Lawyer notice dtl.30.04.2012 issued by plaintiffs to Government officials u/sec.80 CPC Ex.A.9 : Letter dt.18.06.2012 of DR to plaintiffs’ counsel Ex.A10: Acknowledgment of 4th defendant Ex.A11: Postal receipt bearing No.2683 to District Collector, Visakhapatnam
Defendants :- Ex.B.1 : Rehabilitation Card Ex.B.2 : House patta Ex.B.3 : Will Ex.B.4 : Death Certificate Ex.B.5 : Registered Gift Settlement Deed Ex.B.6 : Tax Pass book Ex.B.7 : Tax Passbook Ex.B.8 : Electricity receipts Ex.B.9 : Clearance Certificate
II Addl. Spl. Judge for CBI Cases, Vsp, FAC : XIII ADDL. DISTRICT JUDGE,
GAJUWAKA.