1 //FAIR COPY//
IN THE COURT OF V ADDITIONAL JUNIOR CIVIL JUDGE AT
VISAKHAPATNAM
Present:Sri G.Sreenivasa Reddy, V Additional Junior Civil Judge, Visakhapatnam.
Thursday, this the 9th day of July, 2020
O.S.1336/2010
Between :
Hindu Khusti Nivarana Sangam, NH5 Road, Vasudevanagar, 34th Ward, Thatichetlapalem, Visakhapatnam, Represented by its Secretary Chandrasekhar Gorle, S/o Kuresh, Aged 32 years, R/at Vasudevanagar, 34th Ward, Thatichetlapalem, Visakhapatnam. ...Plaintif And :
1. Vijanagiri Rama Rao, S/o Late Suryanarayana, Hindu, Aged 52 years, R/at D.No.44-2-2/1, Thatichetlapalem, Visakhapatnam.
2. Vijanagiri Umapathi, S/o Late Suryanarayana, Hindu, Aged 51 years, R/at D.No.44-2-2/1, Thatichetlapalem, Visakhapatnam.
3. Vijanagiri Kameswara Rao, S/o Late Suryanarayana, Hindu, Aged 49 years, R/at D.No.44-2-2/1, Thatichetlapalem, Visakhapatnam. (DIED)
4. Vijanagiri Murahari, S/o Late Suryanarayana, Aged 47 years, R/at D.No.44-2-2/1, Thatichetlapalem, Visakhapatnam.
5. Vijanagiri Narayana, S/o Late Suryanarayana, Hindu, Aged 46 years, R/at D.No.44-2-2/1, Thatichetlapalem, Visakhapatnam.
6. Vijanagiri Satyanarayana, S/o Late Suryanarayana, Hindu, Aged 44 years, R/at D.No.44-2-2/1, Thatichetlapalem, Visakhapatnam.
7. The State, Represented by the District Collector, Collectorate, Visakhapatnam.
8. The Mandal Revenue Ofcer, Urban, Near Eenadu, Visakhapatnam.
9. The Andhra Pradesh State Housing Corporation, Represented by District Manager, VUDA Building, Siripuram Junction, Visakhapatnam.
10. Vijanagiri Padma, W/o V.Kameswara Rao, Hindu, Aged 45 years, D.No.44-2/2/1, Thatichetlapalem, Visakhapatnam.
11. Vijinigiri Raghu, S/o Kameswara Rao, Hindu, Aged 30 years, D.No.44-2/2/1, Thatichetlapalem, Visakhapatnam.
12. Vijinigiri Balu, S/o Kameswara Rao, Hindu, Aged 30 years, D.No.44-2/2/1, Thatichetlapalem, Visakhapatnam.
13. Vijinigiri Harika, D/o Kameswara Rao, Hindu, Aged 30 years, D.No.44-2/2/1, Thatichetlapalem, Visakhapatnam.
2 (The defendants No.10 to 13 are legal representatives of
defendant No.3 who are added as per the orders in
I.A.373/2015, Dt.05-10-2015.)
...Defendants
This suit is coming on 23-06-2020 for fnal hearing before me in the presence of Sri A.A.Swamy, Advocate for the Plaintif and of Sri
S.Mohan Rao, Advocate for Defendants No.1, 10 to 13, Sri N.H.Akbar,
Advocate for defendants No.2 & 5, Defendant No.3 died, Sri
B.S.Rama Mohan, Advocate for Defendant No.4, the suit is not pressed against defendant no.6, Defendants No.7 and 8 remained exparte,
Sri GN Murthy, Advocate for defendant No.9 and the matter having stood over for consideration till this day, this court delivered the following :
J U D G M E N T
1.This suit is fled by the plaintif against the defendants for
Permanent Injunction seeking torestrain the defendants No.1, 2, 4 to 6 and 10 to 13, their men and agents from interfering with the peaceful possession and enjoyment of the suit schedule property in any manner whatsoever and for costs of the suit.
2.The brief averments of the neat copy of plaint fled on 17-03-2020 are as follows :
The plaintif is the society registered under the Societies
Registration Act vide No.541/2003 consisting of all SC, ST and Backward classes of people who formed a group under the name and style of
Khusti Nivarana Sangam, all the members of the society are laborers, some of the people are afected with leprosy, on account of that they formed the society, those people are residing at S.No.4 of Dondaparthi
Village in Ward No.34 of Thatichetlapalem, GVMC within the limits of municipal corporation, the land in S.No.4 in an extent of Ac.3.08 cents is
Vagu Poramboku, in the said land, drain is in some extent, open land is in an extent of 1,000 square yards approximately, the forefathers of members of Sangam occupied the land in S.No.4 which is the suit schedule property, the forefathers of the society members laid the huts 3 and have been residing in the same place since more than thirty years, since the members of the society have been residing more than thirty years, they have become the absolute owners in view of the adverse possession against the government, in 2005, the District Collector,
Visakhapatnam intended to construct one thousand houses within the municipal corporation limits to the weaker section under the Urban
Permanent Housing Scheme, the present society is one of the frst selected society under the scheme, the proceedings issued by the
District Collector for sanctioning of Urban Permanent Housing in favour of the society, Dt.28-04-2005 is fled as part of the plaint, the list of members selected for housing scheme by the MRO is fled with respect of society as part of the plaint, the Greater Visakha Municipal
Corporation made a layout for the members of society, it was sanctioned by the Commissioner of GVMC which is fled as part of the plaint, the
District Collector, Visakhapatnam issued proceedings, Dt.28-04-2005, accordingly as directed by the District Collector, the society paid an amount of Rs.75,600/- (Rupees Seventy Five Thousand Six Hundred only) to District Manager, AP State Housing Corporation for the purpose of construction of houses by way of demand draft, Dt.23-03-2005, while the matter stood thus, the houses are not constructed by the District
Collector inspite of repeated requests made by the plaintif, the District
Collector did not construct the houses due to political infuences of the local MLA and Corporator and kept postponing the construction of the houses in one pretext or the other, the society fled a writ petition before the Hon’ble High Court of Andhra Pradesh against the District Collector and others in WP.No.25783/2009 seeking relief of construction of houses, the Hon’ble High Court of Andhra Pradesh issued interim direction to construct the houses, inspite of that they have not taken any action till today, the society made a representation to Collector on Prajavani on 4 18-01-2010, the receipt issued by the District Collector is fled as part of the plaint, basing on that the MRO wrote a letter to the AP State Housing
Corporation, Visakhapatnam on 19-01-2010, there is a direction by the
High Court in WP No.25783/2007 against the defendants No.7, 8, 9 i.e.,
District Collector, MRO and Housing Corporation, no relief is claimed in the present suit and they are added as proforma parties to the suit, the defendants No.1 to 6 who are residing in the adjacent land are trying to occupy the suit schedule land on 07-04-2010, the plaintif made a representation to MRO to fx the boundaries and paid an amount of
Rs.250/- (Rupees Two Hundred and Fifty only) towards surveying fees, the defendants No.1 to 6 have no title or interest with respect to the suit schedule property as the suit schedule property is situated at S.No.4, the defendants are chronic litigants, they are residing adjacent to the suit schedule land and are trying to encroach the same but the plaintif society obstructed the same and drew away the people, on 30-10-2010, the defendants No.1 to 6 tried to encroach the suit schedule land, the plaintif made an obstruction and drew away all of them, the defendants openly proclaimed that it is a government land, they have right to occupy the same, the defendants proclaimed that they will come with more men within two or three days and will occupy the suit schedule land, the act of defendants No.1 to 6 is with malafde intention, deliberate and they have no respect towards law, the defendants are chronic litigants and trying to grab the suit schedule property, the plaintif is a bonafde resident in the suit schedule land since their fore fathers, the plaintif has no alternative except to fle the present suit for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule land. Hence, this suit.
5
3.The brief averments of the written statement fled by the
defendant No.3 and adopted by defendant No.1 are as follows :
The defendants denied the allegations of the plaintif and contends that the defendants do not know that the plaintif is a society registered under the Society Registration Act Vide No.541/2003 consisting of all SC and ST and Backward Classes of people who formed a group under the name and style of Khusti Nivarana Sangam, the suit schedule property is not in S.No.4 as alleged by the plaintif society, the plaintif society was never in possession of the suit schedule property, one Chandrasekhar
Gorle S/o Kuresh who has given afdavit is not at all concerned with the suit schedule property, they were the residents on the eastern side of the gedda, the present suit schedule property is in the western side of the gedda, the suit schedule property is the part and parcel of the zeroyati land of the defendants No.1 to 6 as the land of an extent of
Ac.2.00 cents was purchased by one V.Suryanaryaana, father of defendants No.1 to 6 under a registered sale deed, Dt.09-04-1955,
Doc.No.577/1955 of SRO, Visakhapatnam, Ac.1.05 cents of land was acquired by Visakhapatnam Port Trust in the North-West corner, compensation was also given to the father of the defendants No.1 to 6 and in the Southern side Ac.0.11 cents was acquired for road extension by the Government and compensation was also paid and the eastern boundary as per the sale deed is gedda, the property is that of the defendants No.1 to 6 and the same have been in occupation and enjoyment ever since the date of purchase till today, the suit schedule property is in S.No.3/2 but not in S.No.4, the Municipal Corporation,
Visakhapatnam constructed a retaining wall as per the edge of the gedda and now there is no gedda but it is converted into a big drainage, in the further east of the gedda, there is leporsy colony in which the members of the plaintif society have houses and they were all occupied 6 land by them, the Government also gave houses at Arilova in view of slum clearance but most of the people did not clear the houses but are in still occupation and enjoyment, the plaintif has nothing to do with the suit schedule property, the suit schedule property belongs to the defendants No.1 to 6, the plaintif was never in possession of the suit schedule property, when the MRO, Visakhapatnam has tried to demolish the structures in the site of the defendants No.1 to 6, the defendants
No.1 to 6 have obtained injunction orders by fling a suit in
OS.1295/2003 on the fle of Principal Senior Civil Judge’s Court,
Visakhapatnam which was decreed in favour of the defendants No.1 to 6 on 07-04-2004, there is also a permanent injunction orders in
AS.No.163/2000 issued against the Municipal Corporation,
Visakhapatnam which was decreed on 20-10-2003 by the Hon’ble VII
Additional District Judge, Visakhapatnam, when the AP State Housing
Corporation tried to interfere with the schedule property, the defendants
No.1 to 6 have obtained permanent injunction orders in OS.1658/2005 against 1) A.P State Housing Corporation, 2) MRO, Visakhapatnam and 3)
District Collector, Visakhapatnam and it was also decreed in favour of the defendants No.1 to 6 by the II Additional Junior Civil Judge,
Visakhapatnam, similarly a permanent injunction is granted against the
MRO, Visakhapatnam and District Collector, Visakhapatnam for an extent of 50 square yards on 11-06-2008 which is fled by the defendant No.3 and his wife, the members of the plaintif society when applied to the
District Collector, Visakhapatnam for the houses, the MRO,
Visakhapatnam has granted and allotted for making constructions of houses to the weaker sections for the members of the plaintif society and the same was assigned to the AP State Housing Corporation, it was a proposal made by the then MLA i.e., Ranga Raju who decided to make construction of houses under the name and style of Bangaramma Colony 7 in the name of mother of the then MLA i.e., Ranga Raju, when the A.P.
State Housing Corporation tried to dig the suit schedule land, the defendants No.1 to 6 obtained interim injunction in OS.1658/2005 and permanent injunction was also granted after elaborate trial, while the case is pending, the members of the plaintif society fled a petition in
I.A.891/2007 under Order 1 Rule 10 of CPC alleging the same facts that the suit schedule property belongs to the weaker section, all the members of the plaintif society have their huts and in the place of huts, the Government proposed to construct Banagaramma Colony and it is in
S.No.4 but not in S.No.3/2, the Rough sketch and settlement fair adangals were also fled as documents showing that there is an extent of
Ac.3.08 cents in S.No.4 as gedda poramboke, the part of the gedda poramboke is the present suit schedule property in S.No.4, the AP State
Housing Corporation, MRO, Visakhapatnam and District Collector,
Visakhapatnam fled their counters and written statements in
OS.1658/2005 stating that the defendants No.1 to 6 have encroached
into gedda, the suit schedule property is in S.No.4 and the site does not belong to the defendants No.1 to 6, the two defenses raised by the MRO,
Visakhapatnam in one hand and the plaintifs in I.A.891/2007 were contradicting each other, the Court was pleased to dismiss the petition, in the petition, the plaintifs could not give any door number or extent of the site occupied by each of the plaintifs in their petition, disbelieving the contention of the members of plaintif society, the Hon’ble II
Additional Junior Civil Judge, Visakhapatnam dismissed the petition, a
trial was conducted and after elaborate trial, the suit in
OS.No.1658/2005 was decreed in favour of the defendants No.1 to 6, in
OS.1658/2005, the defendants i.e., the MRO and the District Collector,
Visakhapatnam could not prove that the suit schedule property was
Gedda Poramboke and it is in S.No.4 and the same contention is raised 8 again by the same members but in the name of the society, the society was never in existence and the suit is liable to be dismissed.
4.The brief averments of the written statement fled by the
defendant No.5 and adopted by defendants No.2 and 4 are as
follows :
The defendant No.6 died in 2007 long before the date of fling of the suit, the suit is fled against the a dead person and it is not maintainable, the plaintif came up with false claim suppressing the true facts to harass the defendants in all possible ways and coerce them to submit and yield to their unfair demands, the plaintif society has to prove that it is a society duly registered under the Societies Registration
Act and one Chandrasekhar Gorle who is stated to be the Secretary of the same is competent to sign and verify the averments contained in the plaint on behalf of plaintif, the plaintif is silent as to where the defendants are residing by which side of S.No.4, the defendants owned and possessed the land on the west of the gedda, their father purchased the same under the registered sale deed long ago, the said property has nothing to do with the land covered by S.No.4, the land which belonged to the defendants is covered by S.No.3/2, it is on the west of gedda
Poramboke, the diferent members of the plaintif society and their henchmen have been making attempts since long to occupy the land that never belonged to them which always lawfully belonged to these defendants by using muscle and man power, there is no cause of action for the suit, the court fee paid is not correct, the plaintif society has to seek a declaration of title with regard to the ownership and possession of the suit schedule property and advolarem court fee is to be paid on the market value and the plaintif is not entitled to any of the reliefs as prayed for. Hence, the suit is liable to be dismissed.
9
5.The brief averments of the written statement fled by the defendant No.9 are as follows :
The defendant No.9 denied the allegations of the plaintif and contends that the defendants No.1 to 6 are trying to occupy the suit schedule property by showing S.No.3/2 but it is S.No.4, the defendants
No.1 to 6 during cross examination in the suit in OS.1658/2005 admitted that if the suit schedule property belongs to the government, they have no objection if the government re occupied the suit schedule property, there is no negligence on the part of defendant No.9 in constructing the houses to the plaintif in the suit schedule property, there is no cause of action for the suit, the cause of action mentioned in the plaint is not correct, there are no merits in the suit, the plaintif did not approach this
Court with clean hands, the Court fee is not correct, the plaintif has to pay the stamp duty for the declaration and hence, the suit is liable to be dismissed.
6. The docket reveals that the summons to the defendant No.6 through court returned as died and the suit against the defendant No.6 was not pressed on 15-04-2011.
7.After perusal of the pleadings and documents on record, the following issues were framed on 21-06-2011 :
1. Whether the plaintif is entitled for permanent injunction as prayed for ?
2. To what relief ?
8.To substantiate its claim, the plaintif examined P.W.1 to 3 and
Exs.A1 to A39 are marked. Out of Ex.A1 to A39, Ex.A9 to A15 were marked after recalling P.W.1 vide orders dated 28-03-2016 in I.A.87/2016 and further cross examination of P.W.1 was recorded nil on 01-04-2016.
The defendants No.2, 4 and 5 did not cross examine P.W.2, P.W.3 and any witness on behalf of other defendants. The defendant No.9 did not cross 10 examine any witness on behalf of the plaintif and on behalf of the defendant No.1 to 6 and 10 to 13. The defendants No.4 and 9 did not adduce any evidence on their behalf in support of their pleadings. On behalf of defendants No.1 to 6 and 10 to 13, D.W.1 to D.W.6 and D.W.8 were examined and Exs.B1 to B15 were marked. On behalf of defendants
No.2 and 5, the defendant No.5 was examined as D.W.7 and Exs.B16 and 17 are marked. Written arguments are fled by the plaintif and defendants No.2 and 5.
9. During the pendency of the suit, a memo was fled by the defendants No.1 to 6 on 12-08-2014 that the defendant No.3 died. But the plaintif carried out amendments as if defendant No.5 died and impleaded the defendant No.10 to 13 as if they were the legal heirs of the defendant No.6. After the trial is concluded, the Court on its own noticed the mistake crept in the plaint since the defendant No.5 was examined as D.W.7 and directed the plaintif to make good the mistake.
Accordingly, the plaintif fled fresh neat copy of the plaint on 17-03- 2020 but did not make changes in the original plaint.
10.ISSUE No.1 :
The learned counsel for the plaintif society contends that
the members of plaintif and their ancestors have been in continuous possession and enjoyment of the suit schedule property in an extent of 1000 square yards in S.No.4 which consisted of 36 huts for the last thirty years, the suit schedule pertains to the government land under the encroachment of the plaintif, the government proposed for construction of houses for the members of the plaintif in the suit schedule property which has been under the encroachment of the plaintif, the defendants
No.1 to 6 and 10 to 13 have property in S.No.3 adjacent to the suit schedule property, the defendants No.1 to 6 and 10 to 13 are trying to encroach into the suit schedule property taking advantage of removal of 11 huts by the government in the suit schedule property for construction of houses for the members of the plaintif society, the defendants are no way concerned with S.No.4, the property of the defendants is in S.No.3 and as such the plaintif is entitled for permanent injunction against the defendants No.1 to 6 and 10 to 13. The learned counsel for the defendants contends that the suit schedule property is part of the property in S.No.3/2 which was purchased by the father of defendants in 1955, the eastern boundary in the sale deed in favour of father of defendants under Ex.B6 is gedda, Ex.B6 clearly shows that the property which is in existence until the gedda on the eastern side belongs to the defendants, there is no S.No.4 on the western side of the gedda, the plaintif has never been in possession and enjoyment of the suit schedule property, a decree of permanent injunction was granted on merits in favour of the family members of the defendants No.1 to 6 and against the GVMC with respect to an extent of 400 square yards of property in S.No.3 which is adjacent to Gedda on the eastern side under
Ex.B1, an exparte decree of permanent injunction was granted in favour of the defendants No.1 to 6 and against the defendant No.7 and 8 herein with respect to an extent of Ac.1.06 cents consisting of coconut trees and well which is adjacent to the Gedda on the eastern side under Ex.B3, a decree of permanent injunction was granted on merits in favour of the defendant No.3 herein and his wife and against the defendant No.7 and 8 with respect to 50 square yards of property in Ac.2.00 cents in S.No.3/2 adjacent to the gedda on the eastern side under Ex.B4, a decree of permanent injunction was granted on merits in favour of the plaintif and against the defendant No.9 and the MRO, Seethammadhara,
Visakhapatnam with respect to 850 square yards in S.No.3/2 consisting of coconut trees and well which is adjacent to the Gedda on the eastern side under Ex.B5, the family of the defendant No.1 to 6 and 10 to 13 has 12 been fghting successfully to protect their rights over the property immediately on the western side of the gedda, the plaintif fled this suit with the active support of defendants No.7 and 8 having knowledge of the earlier suits decreed in favour of the defendants to subvert the decrees granted in favour of the defendants and against the government, there are no equities in favour of the plaintif and the suit is liable to dismissed.
11.In a suit for permanent injunction, the general rule is that the burden is upon the plaintif to prove the physical possession over the suit schedule property. In case of vacant land where it may not be possible to establish physical possession over the property, the ratio laid down in Anathula Sudhakar vs. P Butchi Reddy (died) by Lrs and others reported in 2008 Supreme (SC) 526 is applicable and the plaintif shall prove that his title is clear and simple without a cloud instead of physical/defacto possession, in order to draw inference of dejure possession of the plaintif over the suit schedule property. It is not the case of the plaintif that the plaintif or the ancestors of the members of the plaintif purchased the suit schedule property for consideration or acquired ownership over the suit schedule property by way of any transfer inter vivos or succession. The plaintif contends that the suit schedule property is the government land in S.No.4 occupied long ago by raising huts by the members of plaintif society and their ancestors and the plaintif is entitled for injunction against the defendants No.1 to 6 and 10 to 13 in view of their continuous and uninterrupted enjoyment of the suit schedule property. Since the claim of the plaintif is not based on the clear title of the suit schedule property, this Court is of the view that the question of apparent title of the plaintif over the suit schedule property does not arise for consideration.
13
12.The learned counsel for the plaintif contended that the dispute is whether the suit schedule property is situated in S.No.3/2 as contended by the defendants or situated in S.No.4 as contended by the plaintif.
The question of existence of suit schedule property in S.No.3/2 or S.No.4 touches upon the apparent title which would arise between the parties to the litigation who make rival claims of possession based on the absolute title over the suit schedule property. Here is a case where the plaintif does not claim clear title over the suit schedule property whereas the defendants claim that the suit schedule is part of their ancestral property devolved upon them after the death of their farther who purchased the entire extent which includes the suit schedule extent under Ex.B6. In these circumstances, it is indispensable for the plaintif to establish physical possession over the suit schedule property irrespective of the question of existence of suit schedule property in
S.No.3/2 or S.No.4 since the claim of the plaintif over the suit schedule property is one which is based on the alleged uninterrupted possession of plaintif and the forefathers of the members of the plaintif over the suit schedule property but not on the indefeasible title of the plaintif over the suit schedule property acquired by way of transfer or succession.
13. The physical/defacto/actual possession of the plaintif over the plaint schedule property is a matter of fact which shall be established by the plaintif with cogent and reliable evidence. Whether a person has ownership depends on rules of law. Whether a person has possession is a question that could be answered as a matter of fact without reference to law and no inference can be drawn about the physical possession of the plaintif over the plaint schedule property unless the very fact of the physical possession is established by the plaintif. In Balkrishna
Dattatraya Galande v. Balkrishna Rambharose Gupta and
14 another reported in 2019 (2) ALT 7 (SC), it was held that in a suit fled under Sec.38 of the Specifc Relief Act,1963, permanent injunction can be granted only to a person who is in actual possession of the
property, the plaintif has to prove actual possession for grant
of permanent injunction and possession of plaintif can not be
based upon the inferences drawn from circumstances. But the evidence of the plaintif and the cross examination of D.W.1 to D.W.8 on behalf of the defendants reveal that a great deal of focus of the plaintif was to convince the Court that the suit schedule property is situated in
Survey No.4 but not Survey No.3/2 rather than establishing its physical or actual possession over the suit schedule property which is the essential fact in issue. It is of no avail for the plaintif to establish that the suit schedule property is situated in S.No.4 but not S.No.3/2 without establishing the physical possession of the plaintif over the suit schedule property in a suit for permanent injunction. The existence of property in S.No.4 is not sufcient to infer the physical possession of the plaintif over the suit schedule property. Moreover, the question whether the suit schedule property is situated in survey No.3/2 or survey No.4 cannot be efectively adjudicated upon unless the relief of declaration that the suit schedule property is government land is sought by the plaintif when there is serious dispute of title over the suit schedule property to the knowledge of the plaintif prior to the institution of the case on hand. The controversy over the survey number of the suit schedule property cannot be settled in a simple suit for permanent injunction when it involves complicated questions of title.
14. In order to establish its case, the plaintif relied upon Exs.A1 to A39 in support of its contention. Ex.A1 is a letter addressed by the Tahsildar to the Project Director of the defendant No.9 to examine the matter about the construction of houses of housing colony in S.No.4 of 15
Dondaparty Village to the people of plaintif society. Ex.A1 does not shed any light over the fact of the physical possession of the plaintif society over the plaint schedule property. Exs.A2 to A7 are documents emanated from the plaintif itself which are self serving in nature. Exs.A8, A16 to
A27 and A31 to A38 are photographs which do not bear testimony to the alleged existence of any huts which belong to the members of the plaintif society in the plaint schedule property prior to their alleged removal from the suit schedule property by the Government for the construction of houses. The plaint is silent about the number of huts which were situated in the plaint schedule property. P.W.1 testifed that 36 huts situated in the plaint schedule property were in two rows. But
P.W.3 gave a diferent version stating that the huts were in a single row except a few. None of the photographs fled by the plaintif points to the existence of huts as mentioned in the schedule given in the plaint. P.W.1 stated during the cross examination that no photograph was taken by the Tahsildar or the members of plaintif society while the thatched huts were in existence. P.W.3 also stated that there are no photographs as to the existence of the said thatched houses. It is unnatural to believe that there are no photographs to show the enjoyment of the plaint schedule property by residing in the huts in the plaint schedule property for the last thirty years by the members of the plaintif society or their ancestors at any point of time if such huts were really in existence prior to their alleged removal in the plaint schedule property for construction of pucca houses by the government for the members of the plaintif society. Mere presence of a removable name board of the plaintif as is visible in some photographs marked by the plaintif during cross examination of D.W.2, D.W.4 and D.W.8, presence of a make shift tent in the suit schedule property and isolated instance of the pits dug by the defendant No.9 are not reliable proof of the fact asserted by the plaintif 16 that the members of the plaintif society and their ancestors have been in possession of the suit schedule property for the last 30 years.
15. The plaintif placed heavy reliance in its written arguments upon
Exs.A13 and A14 which are sketches with regard to the S.No.3 and
S.No.4 of Dondaparthy, Visakhapatnam which show that an extent of 850 square yards in S.No.4 was encroached and 395 square yards in
S.No.4 is still vacant on the eastern side of the gedda i.e., existing drain.
But Exs.A13 and A14 are silent as to the persons who encroached into 850 square yards adjacent to the gedda or existing drain. Exs.A13 and
A14 do not shed any light as to the actual possession of the plaintif over the plaint schedule property. The extent of suit schedule property is shown as 1000 square yards. The total extent as revealed under Ex.A13 and A14 is 1245 (850+295) square yards which is more than the suit schedule extent. No linear measurements of the suit schedule property are given by the plaintif since they assume importance in the light of variation between the extent given under Ex.A13 and A14 and the extent given in the suit schedule. Exs.A9 to A12 are exchange of communications which have no probative value with regard to the possession of the plaintif over the plaint schedule property. Exs.A9 to
A15 are documents which have their origin during the pendency of the suit. There is no document marked on behalf of the plaintif which had its origin prior to the year of fling of the suit to establish the possession of the plaintif over the suit schedule property.
16.P.W.2 and P.W.3 stated during the cross examination that there were no survey stones in the survey number of the suit schedule property. The sketches under Exs.A13 and A14 are said to have been prepared by way of survey with the help of ETS machine. During cross examination of P.W.3, it was suggested that no survey was done on the 17 ground in the suit schedule property which was denied by P.W.3. A survey by the Government must be in accordance with the AP Survey and Boundaries Act, 1923. Chapter II of the Act provides for the detailed procedure for the survey of the government lands. Except Exs.A13 and 14 which are sketches, there is no report about the procedure followed for survey. No revenue records which were relied upon for survey got marked on behalf of the plaintif. The authority who actually conducted the survey and prepared Exs.A13 and 14 was not examined by the plaintif in support of Exs.A13 and 14. Exs.A9 to A14 speak that it was survey done on the representation of the plaintif during the pendency of the suit. It is inequitable and not proper to solely rely upon the survey conducted during the pendency of the suit with respect to the survey number of the property in dispute unless it is conducted with the permission of the Court and in the presence of both parties. At this juncture, it is pertinent to mention that I.A.825/2011 was fled by the plaintif for the appointment of commissioner. But the plaintif fled a memo dated 07-11-2016 in GR.1835/07-11-2016 not pressing the application on the ground that the survey was conducted by the
Government and the suit schedule land was declared as the Government
Land. Ultimately, the Commissioner returned the warrant on the direction of this Court and the said application was closed on 18-07-2017. Exs.B1 to B5 show the earlier litigation between the defendants No.1 to 6 and the defendants No.7 to 9 in which the defendant No.7 to 9 took the stand that the suit schedule land was the government land in S.No.4 but not zeroyiti land in S.No.3/2 and the earlier litigations were decided against the defendants No.7 to 9. In the light of the earlier litigation decided against the defendants No.7 to 9, the defendants No.7 and 8 cannot unilaterally decide that the suit schedule land is in S.No.4 and it belongs to the Government. Such 18 unilateral determination of the issue by the defendants No.7 and 8 is nothing but usurping the powers of a Civil court to decide a bonafde dispute of title. In Podduturi Vasantha Reddy and others v. Estate
Officer, Airport Authority of India reported in 2010 (2) ALT 296 wherein there was a dispute with regard to survey number, His Lordship
Justice R.Subhash Reddy of the Hon’ble High Court of Andhra Pradesh observed while interpreting the provisions of Public Premises
(Eviction of unauthorized occupations) Act 1971 that the
authorities can order eviction of unauthorized occupants as well
as remove unauthorized constructions. However, when there is a
bona fde dispute with regard to title/boundaries of the land
belonged to Government or its Corporations or companies, such
disputes are outside the scope of adjudicatory powers of
authorities because authorities cannot decide the question of
title which is within the exclusive jurisdiction of Civil Court. The facts of the case on hand and the earlier litigations between the defendants No.1 to 6 and the defendant No.7 to 9 clearly imply that there is a dispute with respect to survey number which directly and substantially touches upon the question of title of the Government over the suit schedule land. In these circumstances, the ratio of the above said decision is applicable, such question cannot be decided by the
Government on the basis of exparte survey under Exs.A13 and A14 and it is within the exclusive domain of a civil court to decide the title of the defendants No.7 and 8 over the suit schedule property.
17.The main defence of the defendants is that having believed in the possession of the defendants over the plaint schedule property is
S.No.3/2, the competent courts granted permanent injunction in favour of the defendants No.1 to 6 with respect to the various extents of the properties in S.No.3/2 which is adjacent to the gedda against the 19
Government under Exs.B1 to B5 and the property adjacent to the gedda is not in S.No.4 as contended by the plaintif. The crucial document relied upon by the defendants is Ex.B6. The defendants contend that the eastern boundary of the property purchased by the father of the defendants is shown as gedda, therefore the entire extent of the property up to the gedda belongs to the defendants and there is no property other than the property in S.No.3 on the western side of the gedda. The plaintif contends that there is no survey number in Ex.B6.
But even P.W.3 during the cross examination stated that he came to know that the survey number of the suit schedule property was S.No.4 two years prior to the fling of this suit. P.W.1 stated during the cross examination that the Tahsildar informed him that the suit schedule property was in S.No.4. It suggests that the members of the plaintif also came to know about the survey number of the suit schedule property not long ago and the alleged possession of the members of the plaintif and their ancestors has not been with the knowledge of survey number of the suit schedule property. In these circumstances, the absence of survey number in Ex.B6 is of little signifcance for the limited scope of this suit and it is the boundaries which prevail. Ex.B6 shows that the eastern boundary of the property purchased by the father of the defendants is gedda, it is not controverted by the plaintif during cross examination of the witnesses on behalf of the defendants No.1 to 6 and 10 to 13, it prima facie supports the title of the defendants over the property upto the gedda on the eastern side and casts cloud on the contention of the plaintif that the suit schedule property adjacent to the gedda on the eastern side is government land.
18.P.W.1 testifed during cross examination that the entire extent in
Suvery No.4 is allotted to the plaintif by the government. The plaintif pleaded in the para III (b) of the plaint that the plaintif acquired title 20 over the suit schedule property which is government land by way of adverse possession against the Government which is outside the scope of this suit since the relief of injunction is prayed against the defendant
No.1 to 6 based on continuous possession over the suit schedule property but not against the Government based on the title acquired by adverse possession. The suit is not for declaration of title by way of adverse possession against the Government. It is not the case of the plaintif that the Government at any point of time attempted to interfere with the alleged possession of the plaintif and the plaintif asserted its prescriptive title against the Government. Moreover, the plaintif contends that it handed over the land to the Government since the
Government proposed construction of huts in the plaint schedule property vide proceedings by the District Collector dated 28-04-2005.
The concept of adverse possession contemplates a hostile possession i.e., a possession which is expressly or impliedly in denial of the title of the true owner. When the plaintif contends that the Government represented by the District Collector issued proceedings for construction of houses in the suit schedule property for the members of the plaintif society, it prima facie suggests that the possession of the plaintif is not adverse to the Government but is permissive. It implies that the plaintif stands not in its own capacity but stands in the capacity of allottee on behalf of the Government with respect to the suit schedule property on the date of fling of the suit.
19.The possession of the allottee against any party other than the allotter is nothing but the possession on behalf of the allotter similar to the case of possession of lessee on behalf of the lessor against a third party. The question of the actual possession of the plaintif in the capacity of the allottee of the Government against a third party indirectly involves the question of constructive possession of the 21 government over the property. The defendants contend that the competent courts decided in favour of the defendants No.1 to 6 and against the Government represented by defendant No.7 to 9 under
Exs.B1 to B5. The plaintif contends that the defendants No.1 to 6 obtained injunction with respect to the suit schedule property under
S.No.4 as if it is situated in S.No.3/2. The rival contentions of the plaintif make it clear that there is no dispute with respect to the identity of the property being claimed by the plaintif and defendants No.1 to 6 and 10 to 13. Both parties claim is with respect to one property on the ground.
When the identity of the property is not disputed between parties, it is of no avail for the plaintif to claim injunction simpliciter on the ground that the defendants obtained injunctions for the suit schedule property with a diferent survey number which does not belong to the defendants No.1 to 6 because it would be anomalous to grant the same relief of injunction in favour of two diferent parties with respect to same property with one survey number in favour of one party and with another survey number in favour of another party.
20.Ex.B7 is the certifed copy of the orders of dismissal of
I.A.891/2007 under Order 1 Rule 10 CPC fled by the members of the plaintif in OS.1658/2005 on the fle of II Additional Junior Civil Judge,
Visakhapatnam. The learned counsel for the plaintif contends that the said application was dismissed observing that it is proper for the members of the plaintif to fle a separate suit against the defendants
No.1 to 6 who were the plaintifs in OS.1658/2005. But the perusal of page 6 of Ex.B7 reveals the observation of the Court that the grievance of the petitioners/the proposed parties was not against the respondent/plaintif therein who are the defendants No.1 to 6 in the present suit but was against the respondents/defendants who are the defendant No.8 and 9 in the present suit. D.W.8 who was the Tahsildar, 22
Urban supported the version of the plaintif that the suit schedule property is situated in S.No.4 and has been in possession of the plaintif.
But Exs.B4 and B5 reveal that neither the Government represented by the defendant No.7 and 8 nor the defendant No.9 in the previous suits in
OS.49/2004 and 1658/2005 pleaded in the written statements on their
behalf that the suit schedule property was in the possession of the plaintif herein. Exs.B4 and B5 reveal that the written statements fled on behalf of the defendant No.7, 8 and 9 in the respective suits did not make any whisper about the plaintif or its members. One of the issues which was decided under Ex.B5 in favour of the defendants No.1 to 6 who were the plaintifs in OS.1658/2005 was that whether the plaint
schedule property is not private property as contended by the
defendant No.1 who is defendant No.9 in the present suit. When the competent courts disbelieved the version of the defendant No.7 to 9 that the suit schedule property was government land situated in S.No.4, the evidence of D.W.8 reiterating the same version disbelieved by the
Court in earlier suits between the defendant No.1 to 6 as plaintifs and the defendant No.7 to 9 as the defendants cannot be given weight in the present suit for injunction fled by the plaintif. It is obvious from Ex.B7 that the members of the plaintif have knowledge of serious dispute of title raised by the defendant No.1 to 6 prior to the fling of the present suit inspite of which the plaintif chose to fle a mere suit for injunction without declaration. The plaint is conspicuously silent about the suits fled by the defendants claiming title over the suit schedule property adjacent to the gedda on the eastern side. When the competent courts decreed suits for permanent injunction against the defendants No.7 to 9 under Ex.B4 and B5 believing the prima facie title and physical possession of the defendants No.1 to 6, the only remedy available for the defendants No.7 to 9 or the plaintif claiming in the capacity of the 23 allottee of the defendants No.7 and 8 is to seek for the declaration that the suit schedule property is government land and for consequential relief.
21.During cross examination of D.W.2, it is suggested that the schedule is not annexed to Exs.B1 and B2 to conceal that the property litigated under Exs.B1 and B2 was not property under S.No.3/2. But the page 7 of Ex.B2 (discussion under issue no.1) provides the description of the property in dispute and makes it amply clear that the family of the defendants have been claiming rights over the property in S.No.3 adjacent to gedda on the eastern side before the Courts since 1996.
Ex.B4 (para 3 in page 2) also makes it clear that the family of the defendants No.1 to 6 and 10 to 13 have been asserting their rights over the property all along the edge of gedda. The schedule in Ex.B5 is with respect to the property with eastern boundary as gedda. When there is already decree of permanent injunction in favour of the defendants and against the Government represented by authorities with respect to the property adjacent to the gedda on the eastern side under Exs.B4 and B5, it is futile for the defendants No.7 to 9 to take the same stand in support of the plaintif in a subsequent suit that the suit schedule property was government land which was disbelieved in the former suits for permanent injunction decided in favour of defendants No.1 to 6 and against the defendant No.7 to 9. The only legal recourse available to the defendants No.7 to 9 is to seek for a remedy of declaration that the suit schedule property is government land situated in survey No.4 and for consequential relief in order to overcome the binding force of decree of permanent injunction in favour of the defendants No.1 to 6 if the defendant No.7 to 9 are serious about the protection of the alleged government property. The binding nature of Exs.B1 to B5 forecloses the defendant No.7 to 9 from raising the same defense taken by them in the 24 earlier suits in favour of the plaintif in this subsequent suit. The defendants No.7 to 9 cannot achieve something which can not be achieved by them in the earlier litigations in a subsequent suit through the plaintif without following due process of law for eviction of the defendants No.1 to 6 or without taking appropriate legal course to establish the title of the Government over the suit schedule property. As such, any evidence on behalf of the Government contrary to the fndings given by the Courts under Exs.B1 to B5 cannot be basis for a decision in favour of the plaintif.
22.The defendants No.1 to 6 and 10 to 13 contend that P.W.1, P.W.2 and P.W.3 are no way connected with the suit schedule property in
S.No.3/2 which is on the western side of gedda, they are residing in
Vasudevanagar which is in S.No.4 on the eastern side of the gedda, the retaining wall constructed by the GVMC for the gedda separates S.No.3/2 from S.No.4 and the defendants No.7 to 9 pressed into service the plaintif since their attempts to interfere with the possession of the defendants No.1 to 6 over the suit schedule property failed by virtue of decrees in favour of the members of the family of the defendants No.1 to 6 and 10 to 13 under Exs.B1 and B3 to 5. P.W.1 during cross examination stated that there are survey stones in the suit schedule property and the survey stone is situated about four feet away from the well situated on the southern side of the suit schedule property. But P.W.2 and P.W.3 stated during cross examination that there are no survey stones at all in the suit schedule property. P.W.1 stated during the cross examination that there are bye-laws for the plaintif society and they are fled into the
Court. No such bye-laws are marked on behalf of the plaintif. It is elicited from PW3 during cross examination that there are no bye laws to regulate the plaintif society. P.W.1 stated during the cross examination that he did not know that the plaintif fled application to implead as a 25 party in OS.1658/2005. P.W.1 denied the suggestion that the said application was dismissed and this suit is fled by suppressing the said dismissal of application for impleadment in OS.1658/2005. Contrary to the oral evidence of P.W.1, Ex.B7 reveals that P.W.1 was one of the parties to the said application under Order 1 Rule 10 CPC. P.W.1 stated during cross examination without any fear of contradiction that he does not know where the Ambedkar colony is situated and where
Bangaramma colony is situated. But Ex.B7 reveals that the proposed parties/petitioners including P.W.1 therein were residents of
Bangaramma colony, New Thatichetlapalem situated in S.No.4/C. A contradictory version is also elicited from P.W.3 that the then MLA unveiled foundation stone for the construction of columns for the colony in the name of Bangaramma by the defendant No.9. P.W.1 stated during cross examination that D1 to D6 do not have any land in and around the suit schedule property which is contradictory to the version elicited from
P.W.2 that the land of Vijanagiri family is situated in S.No.3 and the version from P.W.3 that one Vijanagiri Satyanarayana used to reside next to gedda. P.W.1 stated during cross examination that the alleged thatched huts were removed by the ofcials of defendant No.9 about one or one and half years back. P.W.3 stated during cross examination that the thatched houses were removed two years prior to 2002. The oral evidence of the plaintif in its entirety speak that the versions change from witness to witness in subtle ways and are not consistent. In support of the contention of the defendants No.1 to 6 that the members of the plaintif society were residents of Vasudevnagar but not alleged 36 huts in the suit schedule property, it is elicited from P.W.3 that the residence bearing D.No.44-7-1/385 in Vasudevanagar was allotted to the father by the Government and he was born in the said house. But P.W.3 states that he does not know when the house was allotted and the 26 survey number of the said house. When P.W.3 testifes that they were alloted house in Vasudevnagar, it is improbable to believe the hypothesis that they were also residing in the thatched huts in the suit schedule property at the same time. Moreover, P.W.1 states during cross examination that there are no door numbers for the thatched houses and taxes were not paid for the thatched huts for the period of 30 years.
P.W.2 and P.W.3 also stated during cross examination that there are no door numbers to the alleged 36 thatched huts. P.W.3 stated that the
Government has not granted patta for the suit schedule property in favour of the plaintif. Unless there is tangible evidence to prove the exercise of incidents of possession of the plaintif over the suit schedule property prior to the fling the suit, the version of the plaintif smacks of lack of credibility and the Court cannot come to the rescue of such party.
23.Viewed from any angle, the Court is of the view that the plaintif failed to discharge the burden to establish its physical possession over the suit schedule property. As such, the issue is answered against the plaintif and in favour of the defendants No.1,2,4 to 6 and 10 to 13.
24.Issue No.2 :
In the result, the suit is dismissed with costs.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in the open Court, this the 9th day of July, 2020.
V Additional Junior Civil Judge, Visakhapatnam.
APPENDIX OF EVIDENCE
For Plaintif :
P.W.1 : Chandrasekhar Gorle ( Plaintif )
P.W.2 : G.Purushotham ( Member of Society )
P.W.3 : D.Raju ( Member of Society ) 27
For Defendants :
D.W.1 : V.Kameswara Rao ( Defendant No.3 ) (Died at the stage of further cross examination) D.W.2 : V.Rama Rao ( Defendant No.1 )
Note: Evidence affidavit of DW2 was fled twice, one on
01-02-2018 and the other on 05-12-2017. Evidence affidavit
dated 05-12-2017 was confronted to the witness inadvertently.
But the contents of evidence affidavit fled on 05-12-2017 are
not relevant for this case and neither of the parties brought it to
the notice of the Court.
D.W.3 : V.Padmavathi ( Wife of Defendant No.3 )
D.W.4 : Ch.Subba Rao ( Third Party )
D.W.5 : Pilla Ramana ( Third Party )
D.W.6 : M.Madhu ( Third Party )
D.W.7 : V.Narayana ( Defendant No.5 )
D.W.8 : K.V.Eswara Rao ( Tahsildar, Urban )
No. of Exhibits marked
For Plaintif :
Ex.A1 : Letter addressed by MRO to the Project Director, AP State Housing Corporation, Dt.19-01-2010.
Ex.A2 : Representation, Dt.07-04-2010 by the plaintif to MRO for fxing of boundaries.
Ex.A3 : Police Complaint by the Plaintif, Dt.30-10-2010.
Ex.A4 : Legal Notice to defendants No.1 to 6, Dt.01-11-2010.
Ex.A5 : Section 80 notice issued to the Government, Dt.07-10-2010.
Ex.A6 : Postal Receipt 3330 and 3331, Dt.02-11-2010.
Ex.A7 : Postal Receipts 3683, 3684, 3685, 3686, 3687 and 3688, Dt.09-11-2010.
Ex.A8 : Photograph.
Ex.A9 : Endorsement issued by the Assistant Director, District Survey and land records, Visakhapatnam to the plaintif, Dt.15-07-2015.
Ex.A10 : Copy of letter, Dt.16-06-2015 issued by the Assistant Director, District Survey and land records, Visakhapatnam to the Tahsildar, Urban, Visakhapatnam.
Ex.A11 : Copy of letter, Dt.11-06-2015 to the Assistant Director,District Survey and land records, Visakhapatnam.
28
Ex.A12 : Copy of letter, Dt.08-06-2015.to the Assistant Director,District Survey and land records, Visakhapatnam.
Ex.A13 : Copy of combined Sketch of S.No.3 & 4 of Dondaparthi Village, Visakhapatnam.
Ex.A14 : Copy of combined Sketch of S.No.3 & 4 of Dondaparthi Village, Visakhapatnam issued by the Assistant Director, Dt.15-07-2015 issued under the RTI Act.
Ex.A15 : Copy of letter, Dt.07-09-2015 addressed to 1) The Principal Secretary, Housing Department, the Government of A.P
2) Defendant no.7 and 3) Defendant no.9 by the MLA of Visakhapatnam North.
Ex.A16 to 19 : Photographs showing wall constructed by the Port Trust.
Ex.A20 to 27 : Photographs showing the disputed land.
Ex.A28 : Certifed copy of execution petition in EP 42/2011 in OS 1658/2005 on the fle of II Additional Junior Civil Judge, Visakhapatnam.
Ex.A29 : Signatures of V.Kameshwara rao and V.Padmavathi in copy of plaint schedule in OS.49/2004.
Ex.A30 : Copy of certifed copies of photos obtained in OS.49/2004.
Ex.A31 to 32 : Photograph showing the wall constructed by the port authority.
Ex.A33 : Photograph showing the gedda which runs through the petrol bunk on the other side of National Highway.
Ex.A34 : Photograph showing the gedda which ends near the road leading to new colony.
Ex.A35 : Photograph showing the shops adjacent to the petrol bunk which belong to the family of defendant no.1.
Ex.A36 : Photograph showing the shops facing highway and on the side of petrol bunk.
Ex.A37 : Photograph showing the shop situated on the other side of the National Highway opposite to the suit schedule property.
Ex.A38 : Photograph showing the demolitions undertaken by the Tahsildar of encroachments into gedda.
Ex.A39 : Reply given by the Tahsildar to DLSA, Visakhapatnam on representation of the plaintif along with site plan.
For Defendants :
Ex.B1 : Certifed copy of Decree in A.S.163/2000 on the fle of II
Additional District Judge’s Court, Visakhapatnam, Dt.20-10-2003.
Ex.B2 : Certifed copy of Judgment in OS.1009/1996, Dt.25-04-2000.
29
Ex.B3 : Certifed copy of Judgment and Decree in OS.1295/2003 on the fle of Principal Senior Civil Judge’s Court, Visakhapatnam, Dt.07-04-2004.
Ex.B4 : Certifed copy of Judgment and Decree in OS.49/2004 on the fle of II Additional Junior Civil Judge’s Court, Visakhapatnam Dt.11-06-2008.
Ex.B5 : Certifed copy of Judgment and Decree in OS.1658/2005 on the fle of II Additional Junior Civil Judge’s Court,Visakhapatnam Dt.21-10-2009.
Ex.B6 : Certifed copy of Sale deed, Doc.No.577/55 in favour of defendant’s father, Dt.09-04-1955.
Ex.B7 : Certifed copy of petition and order in I.A.891/2007 in
OS.1658/2005 on the fle of II Additional Junior Civil Judge’s
Court, Visakhapatnam, Dt.16-09-2008.
Ex.B8 : Photograph showing compound wall constructed by the port trust.
Ex.B9 : Photograph showing houses in Vasudevanagar adjacent to gedda.
Ex.B10 & B11 : Photograph showing big pipelines. (Though marked as Ex.B10 and 11, there is single photo which was marked)
Ex.B12 and 13 : Photographs showing well adjacent to the suit schedule property.
Ex.B14 and 15 : Photograph showing the disputed land.
Ex.B16 : Certifed copy of Registered Will, Dt.01-03-1993 executed by Late V.Suryanarayana bequeathing Ac.2.00 cents purchased by him to his sons, daughters and his wife along with fair copy of it.
Ex.B17 : Certifed copy of Rough Sketch of schedule property in S.No.3/2A2 in Ward No.34, Lakshminarayanapuram, Thatichetlapalem, Visakhapatnam prepared by licensed Surveyor, Visakhapatnam.
Note: Exs.A8 is marked through D.W.1, A38 and 39 are marked
through DW8. Exs.A16 to 32 are marked through DW2. Exs.A33 to
A37 are marked through DW4. Exs.B8 to B11 are marked through
P.W.2. Exs.B12 to B15 are marked through P.W.3. Exs.B16 & B17
are marked through D.W.7.
V AJCJ/VSP