Sri J. Vikram

1 OF 13

IN THE COURT OF THE I - ADDITIONAL SENIOR CIVIL JUDGE, WARANGAL.

Friday, this the 27th day of December, 2019.

Present: Sri J.Vikram, I-Additional Senior Civil Judge, FAC.II Additional Senior Civil Judge, Warangal.

O.S.No. 71 OF 2016

B E T W E E N:

Guduru Meera Bai, W/o. Late Guduru Venu Gopal, Age: 58 years, Occ:

Housewife, presently residing at Hyderabad and permanent R/o. H.No.2-2-

381, Ramnagar, Hanamkonda, Warangal. … Plaintif

A N D

1. Guduru Jayasree, W/o. Radha Krishna, Age: 35 years, Occ: Housewife,

2. Sanga Sanjay, S/o. Late Ramulu, Age: 55 years, Occ: Business Both are R/o.H.No.19-06-106, Adarsha Colony, Rangashaipet, Warangal- 506005.

… Defendants

* * *

This suit is coming up before me on 29.11.2019 for final hearing in the presence of Sri CMR Velu, Advocate for the plaintiff; and of Sri V. Yagneshwar, Advocate for the defendants; and after hearing and upon perusing the material on record, and the matter having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

1.This is a suit filed by the plaintiff for recovery of possession of the suit schedule property to plaintiff after evicting the defendants there from and to award costs of the suit.

2. The Suit Schedule Property is : Al that residential house bearing

Municipal No.2-2-381, situated at Ramnagar, Hanamkonda Mandal, Warangal

District, admeasuring to 148.00 Sq.yards which is within the Municipal

Corporation limits Warangal, is located within the following boundaries :

North:House of others South:Road East:H.No.2-2-382 of T. Anjaiah West:Plot of Ibrahim Sharief

The brief averments of the plaint are being thus:

3.The plaintiff is a widow and a permanent resident of Warangal. She owns immovable properties at Warangal which are her exclusive personal acquisition. She has a son and three daughters. All are married and living at different places. Her only son was married to 1st defendant who is the daughter of 2nd defendant on 30.11.2003. Her son has two children and he is 2 OF 13 living with his family at Nacharam, Hyderabad. In the past i.e., on 21.08.2005, the 1st defendant lodged FIR No. 366 of 2005 against the plaintiff and her son alleging an offence u/Sec. 498-A IPC. The police filed charge sheet vide CC No. 1037/2007. The said case ended in compromise at the instance of her son. The plaintiff was falsely implicated though she was not living with them.

4.The plaintiff submits that the defendants developed hostility against her on the ground that she is not parting with her properties to her son. In the past, the defendants demanded properties. She told them that they acquired properties and they are not ancestral and that her son cannot claim it as a matter of right and however she will take a decision about giving of the properties in consultation with all her 4 children. This has irked them. Since then, there were no talking terms between plaintiff and her son and defendants. During December, 2015, her son and defendants intensified their illegal demands for partition. They went to the extent of threatening her saying that they will kill her and occupy the property. As she apprehended threat of dispossession, she filed OS No. 1 of 2016 on the file of II Additional Junior Civil Judge, Warangal and obtained interim injunction on 04.01.2016 in IA No. 02 of 2016. The said injunction is in force even as on today against her son and defendants and they have sufficient knowledge about the injunction order granted by the Court of law.

5.It is respectfully submitted that in utter disregard to the order of injunction and with scant respect to the law, the defendants along with their family members, and around 150-200 anti social elements (men and women) accompanied by SI of Police with two of his constables gate crashed into her residential house at 09.30 hours on 17.01.2016, attacked her, her daughters and sons-in-law and their children, ransacked the house, the defendant No.1 strangulated her with her saree to kill her and forcibly obtained her signatures by putting her under threat of injury and obtained an memorandum of understanding and an agreement as if she is parting with 3 OF 13 her property in favour of the children of defendant No.1. The police personnel encouraged the crime, gave strength and support to the criminals to commit trespass, damage to property, nuisance. The mob came with 2 petrol cans and chilly powder to utilize them in case of her protest. The plaintiff and her family members could not protest as there was every possibility to be killed in the presence of the police. The miscreants attacked her tenants who are engineering students, slapped them, threw out their luggage and forced them to vacate the ground floor consisting of 4 rooms and the defendants forcibly occupied the same.

6.The plaintiff submits that herself and her family members were confined and not allowed to go. Ultimately at 11.00 p.m., in the night they escaped from their confinement and came down to Hyderabad for safety. On 20.01.2016 she was treated at Gandhi Hospital, Secunderabad for the injuries sustained by her. After she came to Hyderabad, the SI of police Mr.

Praveen Kumar kept on calling her and threatening her to come and execute registered documents as otherwise he will implicate her in several criminal cases. Further, on 20.01.2016 she was informed by her servant Mr.

Ramakishan that the defendants 2 and 3 along with 30 other people broke open the door of her residence in the 1st floor and committed theft of gold articles, cash, silver and other household goods and property documents. As she is in Hyderabad and afraid of her life in Warangal, she sent a complaint on 20.01.2016 to the Commissioner of Police, Warangal through Email requesting him to intervene and do justice to her. Unfortunately, there is no response from him. The police who are meant for protecting the lives and property of the citizens have joined hands with anti social elements, took the law into their hands and committed illegal activities and she is without any help from the law enforcing agency. The police involved personally, encouraged the miscreants and allowed the crimes to happen. In result, she had to leave her property and run away from Warangal to save her life. The 4 OF 13 defendants have no manner of any right to snatch her property under threat of her life.

7.The plaintiff let out the ground floor portion to Engineering students for a monthly rent of Rs.15000/-. The defendants evicted them and occupied.

Similarly, the defendants broke open the plaintiff residence in the 1st floor and occupied the same and stolen the plaintiffs valuables, such as Gold,

Silver ornaments, cash, i-phone, house hold articles, singed blank cheques of

SBH including property documents. The plaintiff reserves her right to file another suit for recovery of her movable properties after ascertaining the actual loss. The 1st floor portion has got a rental value of Rs.25,000/- per month. In all plaintiff suffered a loss of Rs.40,000/- pm. The plaintiff is therefore, entitled to seek recovery of possession of the suit schedule property and also rents from the defendants. Hence, the suit.

8.The defendant No.1 filed written statement denying all the averments of plaint. Defendant No.2 adopted the written statement of defendant No.1.

It is stated that the defendant No.1 and her husband were demanding for partition of immovable properties is partly incorrect and false. It is incorrect to state that suit property as self acquired property of plaintiff and that the defendants cannot claim exclusive ownership rights and she will decide after consultation with her daughters and stated that she has no talking terms since then. It stated that during December 2015 defendant

No.1 husband might intensified demand for partition. The other allegations of threatening stating that they will kill her and occupy the property are incorrect and false. It is true that plaintiff filed suit OS.No. 1 of 2016 for permanent injunction is in force, but without notice to defendants till 18.01.2016. The injunction order copy is served on this defendant after 18.01.2016 and this defendant do not have any knowledge about it.

Therefore, the allegations that this defendant has knowledge about order is incorrect and false. The plaintiff did not disclose filing of suit OS No. 01 of 2016 on 17.01.2016. it is incorrect and false to say that by disobeying the 5 OF 13 orders accompanied by SI of Police, 2 constables attacked on 17.01.2016 at 9.30 hours and her daughter, son-in-law. Their children were ransacked the house. It is incorrect to state that defendant No.1 strangulated with her saree to kill her and forcibly obtained her signatures by putting her under threat and obtained her memorandum of understanding and an agreement as if she is parting with her property in favour of children of defendant No.1.

it is also incorrect to state that police became speculator, mob came with two petrol cans and chilly powder to attack in case of her protest. It is also incorrect to state that there is possibility if killing plaintiffs in the presence of police and that miscreants attacked tenants i.e., Engineering students, slapped them, forced them to vacate ground floor consisting of four rooms and that defendant forcibly occupied the same. There is sufficient electronic media covered the entire affairs occurred on 17.01.2016 at the suit property. Since the plaintiff has been harassing her son and family from long back and there was no complaint by plaintiff or anybody else to the higher authority or before the press, media or any other forum including revenue officials. The execution of document dt.17.01.2016 is voluntarily with undue influence and duress. Hence, the document is acted upon. The plaintiff inducted the minor two children of defendant No.1 i.e., grand children of plaintiff. The children/beneficiary are not made as a party to the suit. Hence, this suit is liable to be dismissed for non-joinder of parties.

Therefore the present suit is not maintainable in the present form. Hence, suit OS No.71 of 2016 may be dismissed with costs. Without seeking any relief on the document dt.17.01.2016.

9.It is incorrect and false that complaining on 20th January, 2016 and that till that date plaintiff joined in the Gandhi Hospital, Secunderabad and the SI of police Mr. Praveen kumar called on the plaintiff to execute registered document otherwise, to implicate plaintiff in criminal cases. It is incorrect to state that on 20.01.2016 plaintiff was informed that, Mr. Ramakrishna along with 30 others people broke open the door occupied the first floor, 6 OF 13 committed theft of gold articles, cash, silver and other household goods, property documents. It is not true to state that plaintiff afraid of her life in

Warangal and that she explained to commissioner of police, Hyderabad on 20.01.2016 through e-mail Internet. If really there is any problem himself would have taken any other step. It is incorrect to state that commissioner of police and other police staff did not protect the life and property of the plaintiff and joined hands with anti social elements. Defendant No.1 is daughter-in-law of the plaintiff cannot call as anti social element.

Defendant No.2 is father of defendant No.1 mush is alleged on the police,

Warangal, but the same is incorrect. WP is filed and withdrawn by plaintiff.

There is no effort by the plaintiff in lodging the complaint in any police station since no incident occurred as alleged in the plaint. On 17.01.2016 except execution of the document in the name of defendant No.1 children voluntarily is without undue influence and duress. It is incorrect to state that defendant No.1 has no right over the property.

10.The contents that Engineering students were paying monthly rent of

Rs.15000/- per month and that the students, were evicted by the defendants for her occupation is incorrect and false. The plaintiff herself got vacated all the tenants took away of her all belongings gold, household articles from suit schedule property. Therefore, illegally occupying the defendant over the suit schedule property and stealing of valuables, phone, household articles were stated for the purpose of the case. The plea of reserving the plaintiff other right is not correct. The leave must be obtained for filing another suit by fling application. IA under CPC simple writing sentences in the plaint about leave of the court does not entitles plaintiff file any other suit. It is incorrect to state that the 1st floor portion has got rental value of Rs.25,000/- of the month. The total Rs.40,000/- towards damages plaintiff is not entitles for any relief much less against the defendants. The suit may be dismissed with costs. There is no cause of action. The court fee paid in incorrect. Suit may be dismissed. The defendant 7 OF 13

No.1 reserves her right to take appropriate steps as per law. The defendant

No.1 is residing as a guardian natural mother to her children as per document dt. 17.01.2016. therefore, prays to dismiss the suit with costs .

11.Basing on the above pleadings my predecessor in office framed the following issues for trial:-

1. Whether the plaintif is entitled for the recovery of possession of plaint schedule house as prayed for ?

2. To what relief ?

12.Heard both the counsel. Perused the written arguments filed by the plaintiff. Both the counsel have relied on the citations to support their pleadings. The relevant citations are herewith discussed below:

13. ISSUE NO.1:

SECTION 6 OF THE SPECIFIC RELIEF ACT, 1963:

6. Suit by person dispossessed of immovable property.— (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought—

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

The suit is filed by the plaintiff for delivery of possession of the suit schedule property which is residential house bearing No.2-2-381 situated at

Ramnagar admeasuring 148 sq. yards by evicting the defendants.

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14.The plaintiff submit that due to hostility developed between the plaintiff and defendants as the plaintiff is not parting her properties to her son.

On 17.1.2016 at 9.30 hours the defendant along with their family members around 150 to 200 anti-social elements accompanied by the SI of Police gate crashed into her residential house and attacked the plaintiff, her daughter and son-in-law and their children ransacked the house and forcibly under threat of injury obtained signature of the plaintiff on the memorandum of understanding and agreement as the plaintiff is parting with her property in favour of the children defendant No.1.

15.The defendants admitted the relationship but denied the remaining contents of the plaint. The defendant contented that the plaintiff acted upon the document and inducted the minor two children of the defendant No.1 who are the grand children of the plaintiff. Further the present suit is not maintainable as the children are not made necessary party. Further denied that on 17.01.2016 except execution of documents voluntarily by the plaintiff the defendant No.1 did not commit any such acts as alleged by the plaintiff.

Therefore, prays to dismiss the suit. The defendant No.2 adopted the written statement of the plaintiff.

16. The plaintiff to establish the suit facts has entered into the witness box and got examined as PW1 further got marked Ex.A1 to A4. She also examined

PW2 on her behalf. The evidence of PW3 was eschewed. The defendant No.1 filed her chief affidavit as DW1 and got marked Ex.B1 to B13. The defendant

No.2 filed chief affidavit as DW2 and DW3 and DW4 are also examined on behalf of the defendant.

17. The suit is filed under sec. 6 of Specific Relief Act, therefore, it is held that the purpose behind Sec. 6 is to restrain a persons from using force to disposes a person without his consent other wise than in due course of law as held by Hon’ble Supreme Court in East India Hotels Limited Vs. Syndicate Bank 1992 SUPP 2 SCC 29.

18.It is held that in suit for recovery of immovable property based on previous possession the suit has to be filed within six months from the date of 9 OF 13 dispossession. It is held that the scope of enquiry in a suit filed under sec. 6 is limited to, whether the plaintiff was formerly in possession and whether the plaintiff was dispossess without consent other wise then in due course of law within six months immediately proceeding the date of institution of the suit.

The Court under sec.6 of Specific Relief Act does not try the question of title.

19. In SR Ejaz Vs. TN Handloom Weavers Co-operative Society – 2002 (3 )

SCC 137 it is held that the procedure under sec. 6 is held to be summery to discourage people from adoption any foul means to dispossess a person.

In State of UP Vs. Maharaja Dharmender Prasad sing 1989 to SCC 505,

Krishna Mahale Vs. Shobha Venkat Rao 1989 4 SCC 131 and Muddanna Vs.

Panthanagere Group Panchayath Kengeri Hobli 2003 (10) SCC 349, it has been held that where the persons is settled in possession of the property, even on the assumption that he had no right to remain in the property, he cannot be dispossess by the owner of the property except due process of law.

U/sec.6 the court is supposed to look into the fact whether the plaintiff was in possession for six months prior to the date of institution of the suit.

In Nair Service Society Limited Vs. REV Father K.C Alexander AIR

1968 SC 1165 held that dealing with Pari Materia provision of the Specific

Relief Act 1987 it was explained that if Sec. 6 is invoked, the plaintiff need not prove the title and the title of the defendant does not avail the defendant when however the period of six moth has passed the question of title of raised by the defendant and if does so the plaintiff must establish better title or fail.

It is for this reason only that suit U/sec. 6 does not bar a suit of prior possession within 12 years and title need not be proved unless the defendant prove one.

20.Having gone through the nature of the suit under Sec.6 of Specific Relief.

Act and the issues which are framed by my predecessor I now to proceed to adjudicate the controversy.

21.In the present case the relation between the plaintiff and the defendant

No.1 is that of mother in law and daughter-in-law. The Defendant No.2 is the father of the defendant No.1. the contents of the written statements shows that there is no dispute that the suit is filed within the period of six months for 10 OF 13 recovery of possession, the property is in possession of the suit schedule property. Further, in view of the sanctioned loan the original title deed documents have been deposited with the bank and the said Ex.A4 is evident to establish the same. The photographs under Ex.A2 reveals that there is injury on her neck and also the presence of third party.

22.Now, coming to the oral evidence of PW1 it shows that the defendant has tried to elicit that a partition suit was filed bearing OS.No.205/1991 on the file Prl. Senior Civil Judge's Court and that the PW1 is defendant No.7. However the evidence of PW1 to the suggestion shows that she denied of any knowledge in this regard. The evidence of PW1 that the defendant has tried to elicit and establish that the said schedule property is joint family property and suit bearing OS.No.205/1991 and OS.No.72/97 have been filed against the husband and his brother for partition. It is held that the signature on the agreement dated 17.1.2016 were got marked through PW1, however she stated that the signature have been obtained under duress. Thus, evidence of

PW1 coupled with Ex.A1 to A4 suggest that the suit schedule property is the self acquired property of PW1. Further, she has two commercial shops which was acquired by her from her own income. The evidence of PW1 suggests that there are disputes between defendant No.1 and the husband of the defendant No.1 and in this regard the Criminal case was also filed which was compromise between the parties.

23. PW2 is the third party to the suit. He stated in his chief affidavit that he is having acquaintance with the PW1 and defendants. He stated that on 17.1.2016 at 07.00 hours he visited the house of PW1 and at 9.30 A.M., at that time crowd of about 150 persons gathered in front of the house of PW1 and created big galata. Out of the said crowd one women attacked him also due to which he too sustained injury. He stated that the defendant with the help of

Advocate obtained signature of PW1 on some papers and he was told that the papers relating to the property of PW1. At 10.00 pm 17.1.2016 PW1 locked the house and left for Hyderabad. On 20.1.2017 at 9.30 hours that he found the defendants in the occupation of the house of PW1 which was under the lock.

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24.In the cross examination the PW2 admitted that the defendant No.1 and her children are residing in the suit schedule property located at Ramnagar and it consists of ground and first floor. The evidence of PW2 establishes that

PW1 along with daughter and son-in-law was present in her house on 17.1.2016 and, PW2 was also present at the said time 10 to 15 persons came inside the house and obtained the signatures of PW1. The evidence of PW's 1 and 2 are corroborating the averments of the plaint and further there is no material which could suggest that PW2 out of enimosity is deposing falsely against the defendants. Hence, the evidence of PW's 1 and 2 are believable.

25.DW1 in her cross examination admitted that she is residing in the suit schedule property since 17.1. 2016 and prior there to she was residing at

Nacharam Hyderabad along with her husband. She admitted that the divorce petition filed by her husband is pending against her. She admitted that she initial filed maintaining case against he husband and there after she filed divorce petition. She stated further that she does not know about Injunction order passed against her but 10 days thereafter when she entered into house, she received notice and came to know the injunction order she admitted that on 17.1.2016 she has protested in front of the house of PW1 requesting her to allow along with her children to stay in the house along with her parents and children. It is held that the allegation that the defendant has protested in front of the house of PW1 is elicited and supporting to that the photographs covered under Ex.A2 are revealing the presence of which strengthen the claim of PW1 persons that the protest was made along with other persons. It is admitted by her that the close relative of PW1 were also present when the incident took place. It is held that on the said date of 17.1.2016 PW1 has executed Ex.B5 and

B6 Memorandum of understanding as hence it establishes that in view of the previous disputes between the husband and defendant No.1 DW1 by protesting and keeping PW1 under threat got executed the memorandum of understanding on 17.1.2016 and later forcibly entered into possession of the house of PW1 in her absence and which is supported by evidence of PW2.

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It is held that her admission that prior to 17.1.2016 plaintiff was residing along with her husband at Naracharam itself goes to suggest that PW1 had been in possession of suit property and therefore, she has been disposed forcibly by getting the documents executed under threat of injury.

26.DW2 is the defendant No.2 in the suit and through DW2 Ex.B10 to B13 have been marked. DW2 evidence show that he is the resident of Bombay. He stated that there are no criminal cases pending against him either at Bombay or at Warangal. As per Ex.B8 he admitted that the plaintiff has filed criminal case against him pending on the file of IV Addl. Judicial First Class Magistrate. He deposed that at present the defendant along with her children is residing in the suit property since 2016 and before that plaintiff was residing. Hence, the admission of DW2 categorically true and establish that in view of the protest and as well as the injury caused to PW1, a criminal case was filed against him and same is pending. Further, he also admitted that a protest was held on 17.1.2016 which was covered under Ex.B7 and also Telecast in electronic media.

27.It is held that the defendants are residing in the suit property after the plaintiff left to Hyderabad on 18.1.2016. Further held that the burden lies upon the defendants to establish that the memorandum of understanding was executed voluntarily without any threat but as per the evidence of defendant it shows that the defendant was unable to elicit and establish the said memorandum of understanding executed on 17.1.2016 was voluntarily done and not as alleged by plaintiff.

28.The evidence of DW3 and DW4 suggest that they were not present at the time of disputes and they only came to know that through news papers in respect of the disputes which took place. Hence the evidence of DW3 and

DW4 cannot be helpful to the defendants.

29.Therefore, in view of the oral and documentary evidence filed before this Court, it is held that the plaintiff is able to establish that the defendants have got executed the document dated 17.1.2016 with undue influence and duress and dispossessed the plaintiff. Therefore, by virtue of Sec. 6 of Specific

Relief Act, on considering the possession of the PW1 six months of prior to the 13 OF 13 filing of the suit and also in view of the admission of DW's1 and 2. it can be held safely that the PW1 is entitled for the relief as prayed for.

Hence, issue No.1 answered accordingly in favour of the plaintiff and against the defendants.

ISSUE NO.2:

30. In the result, suit is decreed with costs, by delivering the possession of the suit schedule property to plaintiff by evicting the defendants from the suit schedule property.

(Typed to my dictation, corrected and pronounced by me in open court, on this the 27 th day of December, 2019)

Sd/-(J.Vikram)

FAC. II ADDITIONAL SENIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLINTIFF: FOR DEFENDANTS:

PW1: G. MeerabaiDW1: Guduru Jayasree PW2: Ramkishan DW2: Sanga Sanjay PW3: D. Ram Babu (eschewed)DW3: M. Venkataswamy DW4: S. Shiva Raju

EXHIBITS MARKED

FOR PLAINTIFF: Ex.A1 is the CC of sale deed dt. 30.04.2007 Ex.A2 are the two photographs along with CD Ex.A3 is the market value certificate dt. 04.02.2016 Ex.A4 is the SBH Bank Certificate dt. 23.1.2017. FOR DEFENDANTS: ExB1 is the property tax assessment. Ex.B2 is the CC of said suit in OS No. 01/2016 on the file of II Addl.Jr.Civl Judge, Warangal. Ex.B3 is the counter filed by PW1 and her son in MC 26/2016 Ex.B4 is the compromise petition in OS NO. 205/1991 Ex.B5 & Ex.B6 are the signatures of PW1 on agreement dt. 17.1.2016 Ex.B7 is the Sakshi Daily news paper dt. 18.1.2016 Ex.B8 is the copy of CC No. 83/2016 filed by PW1 against defendant on the file of IV Addl. JFCM, Warangal Ex.B9 is the order in IA No. 2/2016 on the file of I Add.JFCM,Warangal. (Ex.B1 to Ex.B9 are marked through PW1) Ex.B10 is the CC of receipt issued by police dt. 14.12.2015 Ex.B11 is served by copy of plaint in OS NO.120/2018 on the file of II Addl.

District Judge, Warangal.

Ex.B12 is the legal notice dt. 1.2.2019 issued to defendant No.1 and another Ex.B13 is the the download order copy of Hon'ble High Court in CRP No. 2064 of 2016 dt. 17.06.2016.

Sd/-(J.Vikram)

FAC.II ADDITIONAL SENIOR CIVIL JUDGE,

WARANGAL.

1 OF 13

IN THE COURT OF THE II - ADDITIONAL SENIOR CIVIL JUDGE, WARANGAL.

Monday, this the 20th day of January, 2020.

Present: Sri J.Vikram, I-Additional Senior Civil Judge, FAC.II Additional Senior Civil Judge, Warangal.

O.S.No. 126 OF 2000

B E T W E E N:

Annamaneni Ramkishan Rao, S/o. Balaraju, Age: 60 years, R/o. H.No.3/279, Hanamkonda, Warangal District. … Plaintif

A N D

1. Annamaneni Venkateshwarlu(died)(per LR's Def's 39 to 42)

2. Annamaneni Yadagiri(died)(per LR's Def's 43 to 45)

3. Annamaneni Rajamma

4. Akula Shantha

5. P. Subhashini,

6. P. Pochalu,

7. S. Narayana,

8. Jangam Upender,

9. Narati Sambalaxmi

10. K. Ravi

11. M. Anantha Reddy

12. G. Raju

13. N. Saraiah,

14. M. Sambaiah,

15. P. Vijaya

16. B. Laxmaiah

17. P. Koteshwar Rao

18. Nasheem Sulthana

19. D. Venkateshwarlu,

20. T. Ramesh

21. P. Shobha Rani

22. S. Saraiah,

23. A. Padma

24. Gaddam Rajamanohara

25. Patnamshetty Pandu

26. Patnamshetty Venkanna

27. Kothapally Chandramouli,

28. J. Venkataiah,

29. G. Ramesh 30.K. Sujatha

31. Mada Iylaiah,

( Defendant No.28 to 31 are impleaded as per order in IA No. 1125/2001

dt. 06.03.2002)

32. Jangam Chandrikamba

33. Jangam Sagar

34. Jangam Srinivas

35. Jakku Rajaiah

36. Bura Rajender

37. Ch. Rajesh S/o Shankaraiah 2 OF 13

38. Bairam Rajaiah S/o Bairaiah

( Defendant No.32 to 38 are impleaded as per order in IA No. 140/2002

dt. 06.03.2002)

39. Anannamneni Devaki

40. Battu Chandrakala

41. E. Krishnakala

42. Akula Madhavi

( Defendant No.39 to 42 are impleaded being Lrs of defendant no.1 as

per order in IA No.639/2003 dt. 20.11.2003)

43. Annamaneni Hymavathi

44. Annamaneni Karthik Kumar

45. Annamaneni Kavya

( Defendant No.43 to 45 are impleaded beiung Lrs of Defendant No.1

as per order in IA No. 639/2003 dt. 20.11.2003)

46. N.V.Gopal Rao

47. Pujari Ravinder

(Defendant No.46 & 47 are impleaded as per order in IA No.458/2005)

48. P. Srivani (impleaded as per orders in IA No. 409/2007 dt. 25.02.2008)

49. Sirimilla Kranthi Kumar (Added as per the IA.No. 337/2010 dt. 23.03.2011)

50. Muddam Swarupa (Added as per IA No. 338/2010 dt. 23.3.2011)

51. Surasi Komuraiah (Added as per IA No. 339/2010 dt. 23.3.2011)

52. Ambati Revathi (Added as per IA No. 336/2010 dt. 6.3.2012)

53. Akula Dilip (Added as per IA No. 350/2011 dt. 6.3.2012)

54. Abdul Rasheed(Added as per IA No. 351/2011 dt. 6.3.2012) … Defendants

* * *

This suit is coming up before me for final hearing in the presence of Sri K. Gopalakrishna, Advocate for the plaintiff; and of Sri A. Madan Mohan rao, Advocate for the defendant’s 53 and 54 and of Sri M Ajay Kumar, Advocate for the defendant's 18 to 20, 24 to 27 and of Sri. R.Venkateshwar Rao, Advocate for defendant No.2; and after hearing and upon perusing the material on record, and the matter having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

1.This is a suit filed by the plaintiff for declaring that the plaintiff is entitled to 1/7th share in the suit 'A to D' schedule properties; and to appoint a commissioner to partition the suit schedule properties as per the preliminary decree and put the plaintiff in separate possession of his share and to award costs of the suit.

The brief averments of the plaint are being thus:

2.That the plaintiff is third son of Late Annamaneni Balaraju. Sri Balaraju died on 07.03.1974, leaving behind this plaintiff defendant's 1 and 2 and late 3 OF 13

Sundervardhan who died on 11.02.1994 as his sons and defendant 's 4 and 5 as daughters and defendant No.3 as his widow.

3.It is submitted that the defendant No.4 is married and residing with her children at Hyderabad and Hanamkonda as per her convenience. That the defendant No.5 is a widow her husband died about 6 years ago. That the defendant No.5 is blessed with on daughter who is married. The defendant

No.5 is residing with her brother defendant No.3. The plaintiff is a bachelor.

4.It is submitted that father of plaintiff on his death left behind him suit “A to D” Schedule properties. At the time of death of father of plaintiff a suit for partition was pending vide OS No. 28/1968 on the file of Principal Sub Court

Warangal. The plaintiff and defendant's 1 to 5 and Late Sundervardhan were brought on record as legal representatives of Sri Balaraju and arrayed as defendant's 5 to 11 in the said suit. That the suit schedule W to C properties fell to the joint share of plaintiff and defendant's 1 to 5 and Late

Sundervardhan as legal representatives of late Sri Balaraju. The said suit was finally disposed on 14.02.1978.

5.It is further submitted that the plaintiff is entitled to 1/7th share in the suit ''A to D'' schedule properties. Defendant's 1 and 2 are managing the affairs of all the suit schedule properties. The plaintiff went to Saudi Arabia on 19.07.1992 and returned on 14.12.1999, taking advantage of his absence, defendant's 1 and 2 started alienating the suit properties.

6.It is further submitted that the defendant's 1 and 2 are dissipating the properties and not rendering the accounts of income. The plaintiff has been demanding the defendant's 1 and 2 to render accounts and to partition the suit schedule properties, but the defendant's 1 and 2 are not partitioning the properties. Hence, the plaintiff is left with option but to seek the assistance of the court filed this suit.

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7.It is further submitted that the plaintiff is entitled to accounts of the assets and income of the joint properties from the defendant's 1 and 2 during their management. The defendant's 1 and 2 sold the property specified in the schedule 'C' tot he defendant's 6 to 27 to the detriment of interest of plaintiff without any manner of right or interest to cause wrongful loss to the plaintiff.

The defendant's 1 and 2 have no manner of right or interest to alienate the joint properties. Since the plaintiff is not a party to the sale deeds, the said sale deeds executed in favour of defendant's 6 and 27 are not binding on him. The plaintiff therefore is entitled to partition and separate possession of his share in “C” schedule which are in possession of third parties defendant's 6 to 27 after dispossessing them. Hence, the suit.

8.It is submitted by the defendant No.51 that he is a bonafide purchaser for value, and had purchased 100 Sq.yards of house site out of Sy.No. 1242 of

Hanamkonda, from its owner and possessor of Sri Anamneni Yadagiri(D2) S/o

Balraju through agreement of sale, dt. 16.10.2002 for total sale consideration of Rs.50,000/-. This 100 Sq.yards of House plot is out of Sy.No.1242 of

Hanamkonda adjacent to Madireddy kunta and out of second plot. On the date of agreement i.e., on 16.10.2002 this defendant had paid Rs.30,000/- to the vendor. Anamneni Yadagiri (D2) which was acknowledged to have received the same. This agreement of sale dated 16.10.2002 was attested by Shrasi Lngaiah.

Subsequently at the request of the vendor, and as he expressed need for money, this defendant has paid Rs.10,000/- on 28.01.2002, Rs.5000/- on 20.03.2002, Rs. 5000/- on 18.03.2022, again Rs.10,000/- on 16.10.2002, and finally paid Rs.20,000/- on 20.01.2003. As such by 20.01.2003 this defendant had in all paid Rs.50,000/- to the vendor Anamneni Yadagiri, towards full and final satisfaction of the sale amount. On 20.01.2003, the vendor, A. Yadagiri having acknowledged the receipt of balance amount executed the receipt is 5 OF 13 taken of receiving total sale amount, put this defendant in de facto- possession and enjoyment of the house site in part performance of the contract dt.16.10.2002. Since then this defendant is in possession and enjoyment of such 100 Sq.yards., of house site as owner thereof. Thereafter, this defendant had submitted this agreement of sale, dt. 16.10.2002 in the office of the Revenue

Divisional Officer, Warangal RDO., Warangal after considering the contents of the document in its File D.Dis NO.D/1034/2007, dt. 25.04.2007 had collected deficit stamp duty along with penalty and issued certificate to validate, dt.

25.04.2007 in favour of this defendant. In pursuance of his possession and enjoyment over the purchased land of 100 Sq.yards., this defendant had erected a fencing around the land purchased by him, but, the plaintiff had removed the same by force. Although this defendant complained the same to the police, but the police failed to take any action, due to man and money power of the plaintiff. The police had advised this defendant to approach the civil court for the adjudication of his rights. Accordingly this defendant had filed petition to implead him as one of the defendants and after though fight with plaintiff, this defendant is made a party in the suit. This defendant is poor, daily labour on the other hand the vendor A. Yadagiri was a Government Servant and placed in a big social status and was working at Rajmundry and on other place.

Therefore, he was not approachable. Even, though this defendant had tried to contact the vendor several times and request him to execute and register the sale deed, he was not available. Suddenly this defendant come to know that the vendor, Sri A. Yadagiri, but, they too postponed the same A. Yadagiri, the vendor lead the defendant to the site and showed the boundaries of 100

Sq.yards., and put him in possession and enjoyment of the said 100 Sq.yards of house plot in part performance of contract.

9.It is further submitted that the possession and enjoyment of 100

Sq.yards, out of Sy.No. 1242 of Hanamkonda by this defendant is known to the 6 OF 13 plaintiff and his mother and brother. Sri. A. Yadagiri the vendor of this defendant was D2 in the suit. During the pendency of the suit, the vendor of this defendant died leaving behind him, his widow and female heirs. During his life time, Sri. A. Yadagiri did not deny the sales, made by him and by his silence had admitted the acts and action taken by him. It is submitted that Sri Yadagiri, (D2) the vendor of this defendant, Sri. A. Venkateshwarlu (D1) their mother had sold several plots in favour of several persons and put them in possession of the same. The purchaser had constructed houses in the plots and living therein.

The plaintiff and his representatives who were representing the plaintiff, during the period of his absence, had knowledge about these transaction but, they never opened their mouth and kept in silence as mute spectating. The long silence of the plaintiff, and his associates, keeping silence over the possession and enjoyment of the defendants amounts to acquiescence and operates as estoppal against him. Hence, the plaintiff is estopped from questioning the possession and enjoyment of this defendant over the said 100

Sq.yards of house site.

10.It is further submitted that originally the plaintiff filed suit against about 25 persons only, but, since lapse of time, the plaintiff impleaded several persons as defendants, and entered into compromise with several defendants, extracted money from them. The plaintiff did not stop with compromising with defendants, but also influenced, pressurized, the widows, female heirs of D1 and D2, and got favourable commitments from them. All these chain of events are clear that the plaintiff, in view of the increased value of the house site, intends to extract money from the bonafide purchasers for value, who had purchased the house sites from D1 and D2. Hence, prays to dismiss the suit.

11.Basing on the above pleadings my predecessor in office framed the following issues for trial:-

1. Whether the plaintif is entitled for declaration for his 1/7th share in plaint schedule “A to D’ properties?

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2. Whether the plaintif is entitled to seek for partition?

3. Whether the Court fee paid is not correct?

4. Whether defendant’s 18, 19, 20, 24, 25 and 26 are bonafide pur- chasers?

5. To what relief ?

ADDITIONAL ISSUES:

i) Whether D53 and D54 are the bonafide purchasers of the land? ii) Whether the D53 and D54 get any title to the land prayed by them? iii) To what relief?

12.Heard the learned counsel for the plaintiff and defendant NO.10.

Perused the written arguments filed by the plaintiff counsel 1. ISSUES No.1 to 3:

13.Originally, the suit was filed against defendant’s 1 to 27 and subsequently defendant’s 28 to 54 were brought on record as per orders passed in different Interlocutory applications. The defendant's 51, 53 and 54 filed their written statements contending that the said plaint is entitled to be dismissed with exemplary costs.

14.The plaintiff seeks the relief of partition in respect of schedules “A to D” properties and seeks to declare that he is entitled for 1/7th share in the schedules “A to D” properties and further, appoint a commissioner to partition the suit schedule properties as per the preliminary decree and put the plaintiff in separate possession of his share.

15.On perusal of the material on record it shows that plaintiff has entered the witness box and filed his chief affidavit as PW1 and got marked

Ex's.A1 to A3 and Ex.C1 to C4.

Ex.A1 is the certified copy of final decree which categorically shows that “A to C” schedule properties fell to the share of PW1 and defendant’s 1 to 5 as 8 OF 13 per the IA No. 236 of 1974 in OS NO. 28/1968 dt. 14.12.1978. The chief affidavit contents of PW1 shows that he reiterated the plaint averments in his chief affidavit. The defendant’s 3 to 5 and defendant’s 24 to 26, 29 and 30 did not choose to cross examine hence, their cross examination was treated as nil. It is further observed that defendant No. 32 to 38 reported no cross examination and endorsed the same on the chief affidavit of PW1 and therefore, they did not choose to cross examine. It is also observed that the remaining defendants also, did not come forward to cross examine.

Ex.A2 is the Encumbrance Certificate for the period 1.1.1998 to 5.3.2000 in respect of item No.1 of “B” Schedule property which shows that the claimant in respect of the house situated at Sy.no,. 143 within the boundaries is one K.

Chandramouli and the executant is A. Venkateshwarlu. Ex.A3 to A5 are the valuation certificates in respect of “A” Schedule property.

Ex.C1 is the Commissioner report along with enclosure showing the boundaries of Sy.No. 1242 and 1243 along with its measurements. Ex.C2 discloses that a notice was served by the advocate/receiver by the Hon’ble

Court in respect of item No.1 of “B” schedule property, directing the respondent No.28 to stop the construction work and that the respondent

No.49 is still continuing with his construction. Ex.C3 is the interim report of the receiver dt. 24.10.2008. Wherein, the receiver was appointed to manage Item

No.1 of B-schedule property and the receiver took possession of item No.1 of

B- schedule property by the respondents No.24 to 26 and 28 to 30. Further, defendant NO.28 alienated his property in favour of Smt. Ambati Revathi which is shown in red colour enclosed to plan.

16.The interim report shows that it is a fit case to remove the construction raised by the Respondents 24 to 26 and 28 to 30 and Respondents 49 to 51 by demolishing the structures raised by them in item No.1 of B- schedule property and he has filed the photographs enclosed along with the 9 OF 13 interim report and as well as the rough sketch showing the existence of new construction in Sy.no 1242 and 1243 which is prepared by receiver.

17.According to the averments of chief affidavit of PW1 it shows that a compromise was entered during the pendency of the suit and a preliminary decree of compromise was entered. Again, a second compromise was entered vide dt.16.07.2012 which was effected in between plaintiff and defendants.

Hence, as per decree dt. 15.08.2008, Defendants 6 to 16, D18 to 23, 27, 39 to 45, 47 and 48 compromise was effected, and as per dt. 16.07.2012 compromise was effected in between the plaintiff and defendant’s 24 to 54.

18. According to the plaintiff, four defendants who claimed for impleading them in the suit out of them, only two defendants were impleaded and the other defendants petition were rejected by the Orders of the Hon’ble High

Court vide Civil Revision Petition NO. 5604/2012 and 5698/2012 dt. 7.9.2017 i.e., defendant’s 53 and 54.

19. Defendant’s 10 and 51 brought on record and defendant No.51 filed his written statement.

As per the compromise which was effected on 16.07.2012, the plaintiff and defendants entered into the compromise. Wherein, the defendants 39 to 42 who are the legal heirs of deceased defendant NO.1 and D43 to D45, are the legal heirs of deceased defendant NO.2 and, defendant NO.3 is the mother of plaintiff and defendant No. 1 and 2. Defendant Nos. 4 and 5 are the sisters of plaintiff and defendants Nos. 1 and 2 and that the defendant NO.5 died and defendant No. 8 is the daughter of D5.

20.Defendant's 43 to 45 have authorized Sri Gattu Surender through GPA

dt:30.05.2008 to enter into the compromise with plaintiff and D4 ,D6 to

D16,D18 to D23 and D27 in the suit. Hence, as per the terms of compromise it was agreed by the plaintiff and defendants that, the plaintiff and D3 shall not have right over the A schedule property since it was alienated by plaintiff and 10 OF 13

D3. The plaintiff was alloted land in Sy.No.1242 and 1243 shown in pink colour in the plan enclosed with all rights exclusively to an extent of 890 Sq.yds.

Further the plaintiff and defendants confirmed that the area claimed by the defendants in this compromise if less, at the location no claim will be made against the plaintiff or defendants 39 to 43 and D3 to D5. The plaintiff and D3 alone are the exclusive owners of item Nos. 2 to 4 of suit schedule properties.

That the claim in respect of B schedule property may be dismissed as the same is not available for the partition. Further, that the D3 has sold the land admeasuring 150 Sq.yds to Sri Koraveena Komuraiah, S/o Sariaiah, under registered sale deed vide dt:06.07.2010. Hence, the same is not binding on plaintiff and D3. Further prays to dismiss the suit in respect of D49 and D50 and to pass a preliminary decree.

21.It is held that the defendants 10 and 51 did not enter into the compromise vide dt:15.09.2008 and, as well as, in the compromise

dt:16.07.2012. Further both the defendants did not choose to cross examine

PW1 therefore the contents in the chief affidavit of PW1 remains undisputed and unchallenged. As far as the written statement of D53 and D54 which is already filed on record can not considered since Hon’ble High Court vide CRP

No. 5604/2012 and 5698/2012 dt: 7.9.2017 has set aside the orders passed by this Court.

22.Hence, it is held that defendants 53 and 54 rights are not adjudicated in the present suit as they are not bonafide purchasers and as well as they did not attain any title for the land as prayed for. Further it is held that the A schedule property as contended by the counsel for the plaintiff and as well as in view of the compromise, the same is deleted.

23.It is held that Defendant No.10 entered into the compromise as per the Decree dt:15.09.208 but subsequently his impleading application was dismissed and in spite of said dismissal, a structure was raised in “B” schedule 11 OF 13 property illegally which fact can be ascertained from the report filed by the

Commissioner. After serving notice under Ex.C3 a receiver was appointed to manage the item No.1 of the “B-schedule” property. Receiver took the possession of item No.1 of the “B-schedule” property. Ex.C3 report discloses that in spite of the orders to stop the construction still, the construction work was carried on. Hence, it goes to suggest that the Defendant No.10 by flouting the interim injunction orders has raised the construction by encroaching B- schedule property.

24.Hence, in view of the facts and circumstances it can be held that plaintiff is entitled for declaration of 1/7th share in the remaining land of

Sy.No. 1242 and 1243 shown in the pink colour in the plan enclosed to IA NO.

486/2012 in OS NO. 126/2000 as per compromise effected and, terms and conditions entered in between plaintiff and defendants. Further, the plaintiff and defendants No.3 will not have any right over the ‘A’ schedule property since it is already alienated by plaintiff and defendant No.3. Further, the plaintiff and defendant No.3 alone, are the exclusive owners of item’s 2 to 4 of B- schedule properties. Whereas, the claim in respect of D-schedule property is dismissed since it is not available for partition. The sale deed doc No.

3591/2010 dt. 6.5.2010 is not binding on the plaintiff and defendant No.3 and that the suit against Defendant's 49 and 50 is stands dismissed.

Hence, issue’s 1 to 3 answered in favour of the plaintiff.

25. ISSUE NO.4: In view of the compromise effected vide dated 15.09.2008 and 16.07.2012 the defendant’s 18 to 20 and 24 to 26 are considered as bonafide purchasers.

26. ADDITIONAL ISSUES 1 AND 2:

The additional issue’s 1 and 2 are answered in favour of the plaintiff and against the defendant’s 53 and 54 since they are not impleaded as parties in 12 OF 13 view of the Orders passed by the Hon’ble High court in CROP No. 5604/2012 and 5698 of 2012 dt. 07.09.2017.

27. ISSUE NO.5:

In the result, the suit is preliminarily decreed by metes and bounds in favour of the plaintiff and against the contesting defendants and that the plaintiff is entitled for 1/7th share in the suit schedule properties by way of separate possession of his share in schedule-’B’ and schedule-’C’ to the extent of land in Sy.No. 1242 and 1243 i.e., (as per the compromise effected vide dated 15.09.2008 and 16.07.2012) entered in between plaintiff and the defendants i.e., who have entered into compromise since holds good.

Further, the structures in item No.1 of the B-schedule which is raised illegally during the pendency of the suit shall be demolished and the encroachments made in the item No.1 of the B-schedule property shall be removed with the help of the police. Further, the suit against defendant’s 49 and 50 is dismissed in view of the compromise effected vide dt. 16.07.2012.

Further, the plaintiff and defendant No.3 shall have no claim or right over the ‘A’ and ‘D’ Schedule properties, hence dismissed, as the same are not available for the partition.

Hence, the plaintiff is entitled to file a separate petition for final decree and for appointment of the Advocate commissioner.

(Typed to my dictation, corrected and pronounced by me in open court, on this the 20 th day of January, 2020)

Sd/-(J.Vikram)

I ADDL.SENIOR CIVIL JUDGE,

WARANGAL

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLINTIFF: FOR DEFENDANTS:

PW1: A. Ramkishan Rao-None-

EXHIBITS MARKED

FOR PLAINTIFF:

Ex.A1 is the CC of final decree dt. 14.12.1978

Ex.A2 is the encumbrance certificate for the period from 1.1.1998 to 5.3.2000 in respect of item No.1 of B-Schedule property

Ex.A3 to Ex.A5 are the valuation certificate in respect of A-Schedule properties.

EXHIBITS MARKED THROUGH COURT

Ex.C1 is the commissioner report along with enclosures Ex.C2 is the notice given by the receiver dt. 11.10.2008 Ex.C3 is the interim report of receiver dt. 24.10.2008 Ex.C4 is the CC of compromise petition. FOR DEFENDANTS: - NIL-

Sd/-(J.Vikram)

I ADDITIONAL SENIOR CIVIL JUDGE,

WARANGAL.

1

IN THE COURT OF THE VII - ADDITIONAL JUNIOR CIVIL JUDGE,

WARANGAL.

Monday, this the 3rd day of December, 2018.

Present: Sri J.Vikram, V–Additional Junior Civil Judge, Warangal. FAC - VII–Additional Junior Civil Judge, Warangal.

O.S.No.911 OF 2011

B E T W E E N: Sriramula Peddanna, S/o. Kondaiah, Age: 69 years, Occu: Agriculture, R/o. H.No.6-82, Village and Mandal Dharmasagar, Warangal District.

... Plaintiff

A N D

1.Macherla Sarojana, W/o. late Rajaiah, Age: 45 years, R/o. Elkurthi village of Dharmasagar Mandal of Warangal District.

2.Macherla Vijaya, W/o. late Veeraiah, Age: 40 years, R/o. Elkurthi village of Dharmasagar Mandal of Warangal District.

. .. Defendants

* * * This suit is coming up before me on 27.11.2018 for final hearing in the presence of Sri K.P.Eshwarnath, Advocate for plaintiff; and of Sri B.Rajendra Kumar, Advocate for defendants; and upon hearing and on perusal of the material on record and having the matter stood over for consideration this Court has made the following:

J U D G M E N T

1. This suit is filed seeking permanent injunction in favour of the plaintiff as against the defendants, restraining the defendants, their legal heirs, their workmen etc. permanently from interfering with the peaceful enjoyment and lawful rights of the plaintiff over the suit land, and for costs of the suit, other reliefs if any.

2. The brief averments of the plaint are as follows:

Plaintiff is the owner/pattedar and possessor of the total land to an extent of Ac.1-00 situated in S.No.1908/A/1 (12½) and in

S.No.1909/A/1 (27½ Gts.) of Madikonda of Hanamkonda Mandal,

Warangal District.

2

3. Plaintiff further submits that on 25.07.1980 the father of plaintiff i.e., Sriramula Kondaiah S/o. Ramaiah has purchased Ac. 1-00 Guntas of land for a total sale consideration of Rs.5,000/- (Rupees five thousand only) from Macherla Mallaiah S/o. Ilaiah of Elkurthi village of

Dharmasagar Mandal. Sri Rajaiah, the husband of the defendant No.1 and Verraiah, the husband of defendant No.2 are also signatories to the said sale transaction. The said vendor i.e., Macherla Mallaih is the

Father-in-law of the defendants herein. At the time of sale the land sold by Macherla Mallaiah to Sriramula Kondaiah is situated in

S.Nos.1906, 1908, 1909, 1910 and 1911 of Madikonda village of

Hanamkonda Mandal to an extent of Ac 00-07, 00-07, 00-11, 00-08 and 00-07 respectively. On the same i.e., on the date of sale (25.07.1980) possession has been delivered to the purchaser. Since then the purchaser, Sriramula Kondaiah and his family are enjoying the same continuously without any kind of interruption. After the purchase of the suit land, the survey numbers have been renumbered.

According to that renumbering of survey numbers, the suit scheduled property is comprised in two survey numbers i.e., S.No.1908/A/1 (12 ½ Gts.) and 1909/A/1 (27 ½ gts.) i.e., total to an extent of Ac. 1-00

Gts.). The said Sriramula Kondaiah died in the year 1992 leaving the plaintiff as his only legal heir. After the death of his father, the plaintiff inherited the property (suit land) and enjoying the same continuously.

The said Macherla Rajaiah, i.e., the husband of the defendant No.1 died about ten years ago and said Veeraih i.e., husband of the defendant No.2 died about one year after the death of Rajaiah. After the said purchase of the suit land, on 10.07.1989, the father of the plaintiff, i.e., Sriramula Kondaiah has submitted ROR application along 3 with required documents like sale deed etc. before the revenue authorities of Hanamkonda Mandal. Immediately in pahanies also the name of Sriramula Kondaiah was mutated. Thereafter the father of the plaintiff died. After the death of his father, the plaintiff approached the revenue authorities for issuing of pass books and after enquiry the authorities have issued Rythu Pass Books to the plaintiff in the year 2008.

4. The plaintiff submits that he is a resident of Dharmasagar village, and he is an old aged person. By taking advantage of the old age of the plaintiff and also his residence which is away from the suit land, the defendants with the help of their yes-men and some unsocial elements, without any right over the suit land are trying to interfere with the suit land and trying to encroach into the suit land. The plaintiff could successfully resist the illegal activities of the defendants and their yes-men. But because of the above mentioned reasons the plaintiff is not in a position to watch the activities of the defendants always. Hence, the plaintiff got issued a legal notice dated 25.02.2011 warning the defendant No.1 not to repeat her illegal activities. After receiving the notice the defendant No.1 was silent for some days, but again she started her illegal activities by trying to encroach into the suit land by taking advantage of the absence of the plaintiff, hence the plaintiff again got issued another legal notice dated 21.04.2011. The defendant No.1 did not give any reply to any of the said two notices till 04.08.2011. The defendant No.1 has given her reply dated 26.07.2011 with false claims and the same is received by the plaintiff on 04.08.2011.

4

5. The plaintiff submits that on 05.08.2011, the son of the plaintiff went to the suit land and got the land ploughed and again on 06.08.2011 the son of the plaintiff went to the suit land to sow the seeds. While the work is under progress, the defendants along with their yes-men went to the suit land and tried to encroach into the same. The son of the plaintiff resisted them and their yes-men. As they could not encroach physically into the suit land they physically attacked the son of the plaintiff and by abusing him in a filthy language they went away from the suit land. Then the plaintiff has given a written complaint against the defendants in Madikonda Police

Station. Under these circumstances the plaintiff cannot protect his lawful rights over the suit land without an order of injunction by the

Hon’ble Court restraining the defendants and their yes-men, workers,

heir from interfering with the peaceful enjoyment and lawful rights of the plaintiff over the suit land. Hence the suit.

6. The defendants filed their written statement by submitting that neither the plaintiff nor his father is the owner and possessor of the said land to an extent of Ac. 1-00 guntas in Sy.No.1908/A/1 to an extent of Ac. 0.12 ½ guntas in Sy.No.1909/A/1, to an extent of

Ac.0.27 ½ gunts of Madikonda village, Hanumakonda Mandal,

Warangal District. The defendant does not know about the purchase of the land by the father of the plaintiff on 25.07.1980 from Mucherla

Mallaiah. The said land is situated in Sy.No.1906, 1908, 1909, 1910 and 1911 to an extent of Ac.0.07 gutnas, Ac.0.07 guntas, 0.00 guntas,

Ac.0.08 guntas and Ac.0.07 gutnas respectively and on the same day the possession has been delivered to the father of the plaintiff since then the plaintiff’s father has been enjoying the same continuously 5 without any kind of interruption are all false, hence the plaintiff is hereby required to prove the same. In fact the said property stands in the name of Macherla Kondaiah as such the Macherla Mallaiah has no saleable right or interest over the property of Macherla Kanakaiah.

7. The defendants further submit that they do not know the renumbering of said survey numbers and they do not know about the father of the plaintiff in the year 1992, and they also do not know the plaintiff is the legal heir of S.Kondaiah hence they denied and plaintiff is required to prove with strict proof and evidence. It is a fact that the husband of Defendant No.1 died about ten years back and the husband of Defendant No.2 died about nine years back. The defendants do not know about the ROR application before the revenue authorities and also entries in pahanies further the issuing of pass book in the name of plaintiff in the year 2008, hence denied and the plaintiff is required to prove the same with strict proof and evidence.

8. The defendants submit that with regard to the legal notice, this defendant gave suitable reply to the notice of the plaintiff, hence the plaintiff is required to prove his ownership title over the suit schedule property. It is all false that on 05.08.2011 the son of the plaintiff went to the suit land, plugged and again on 06.08.2011 the son of the plaintiff sow in the land while the work is in progress the defendants along with yes-men resisted the son of the plaintiff has physically attacked him by abusing in filthy language, then the plaintiff gave complaint to the police. It is also false that the defendants by taking the help of some unsocial elements, are trying to encroach into the suit land and also trying to attack the plaintiff and his family members, 6 and the defendants have no right over the suit land is all false and created. The plaintiff having no prima facie case and balance of convenience lies in favour of the defendants to refuse the injunction, as the rights in property is not transfer in the in the name of the plaintiff. To the knowledge of the defendants, the suit schedule property never sold by the father-in-law of the defendant, Macherla

Kanakaiah or Macherla Mallaiah, as such proceedings of ROR in the revenue authorities all created and beyond back of these defendants and also her father-in-law i.e., Macherla Mallaiah. In fact, the suit schedule property is in the peaceful possession and enjoyment of this defendant, hence the plaintiff is not entitled to the injunction, if the injunction is granted, the defendants put to irreparable loss.

Therefore, prayed to dismiss the above suit with costs in the interest of justice.

9. Basing on the above pleadings, my predecessor has framed the following issues for trial:

1) Whether the plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of the suit?

2) Whether the defendants have interfered with the possession and enjoyment of the plaintiff over the suit schedule property?

3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?

4) To what relief?

10. Heard the learned counsel for both sides.

11. In support of the case of the plaintiff the PWs: 1 and 2 were examined and got marked Ex.A1-CC of pahany in the year 1989-90,

Ex.A2-CC of pahany in the year 1990-91, Ex.A3-CC of pahany in the 7 year 1991-92, Ex.A4-CC of pahany in the year 1992-93, Ex.A5-CC of pahany in the year 1993-94, Ex.A6-CC of pahany in the year 2008- 2009, Ex.A7-CC of pahany in the year 2009-2010, Ex.A8-Legal Notice sent by the plaintiff dated 25.02.2011, 21.04.2011, Ex.A9-Reply

Notice dated 26.07.2011, Ex.A10-Two acknowledgment cards, Ex.A11-

Two postal receipts, and Ex.A12-Pattadar Pass Book vide bearing

No.1566 dated 20.12.2008 along with title deed book.

12. In support of the case of the Defendants the DWs: 1 to 3 were examined and got marked Ex.B1-CC of Pahani for the year 1994-95,

Ex.B2-CC of Pahani for the year 1995-96, Ex.B3-CC of Pahani for the year 1996-97, Ex.B4-CC of Pahani for the year 1997-98, Ex.B5-CC of

Pahani for the year 1998-99, Ex.B6-CC of Pahani for the year 2003-04,

Ex.B7-CC of Pahani for the year 2006-07, Ex.B8-CC of Pahani for the year 2008-09, and Ex.B9-CC of Pahani for the year 2009-10, and

Ex.B10-Two photographs dated 28.09.2011 along with CD (marked subject to objection that the bill is not filed as per Sec.65-B of Indian

Evidence Act.)

13. Issue Nos.1 and 2: Issues 1 & 2 are answered jointly for proper adjudication of the suit.

On perusal of the evidence filed by PW1, it shows that in order to establish that the father of PW1 has purchased the suit schedule property and is in possession of the same relied on Exs.A1 to A12.

This Court on perusal of Exs.A1 to A7, it considers that the name of the father of PW1 is entered in the possessory column for Sy.Nos.1908 and 1909. Further, the name of PW1 is also reflecting in the possessory column for Sy.No.1908/A/1 and Sy.No.1909/A/1 in respect 8 of 12 ½ guntas and 27 ½ guntas respectively. Further, Ex.A12-

Pattedar Passbook along with title deed shows the name of PW1 duly entered in the said revenue records as owner and possessor for the said suit schedule property. Therefore, in view of the Exs.A1 to A12 it is considered that PW1 is able to establish that PW1 is in possession as on the date of filing of the suit. Even as per the oral evidence of PW1, it shows that the Sy.No.1906, 1908, 1910 and 1911 are pertaining to the family members of the defendants and father of PW1 has purchased the property from Macharla Mallaiah for which the husband of defendant No.1 and also husband of defendant No.2 are the signatories for the sale transaction. The evidence of PW1 suggests that the husband of defendant No.1 and husband of defendant No.2 died. Further, it is held that the defendants could not elicit and discard that the PW1 is not in possession.

14. The evidence of PW2 goes to show that he is examined to support the averments of plaint and PW1. According to the averments, it shows that the grandfather of PW2 has purchased the suit property from Macharla Mallaiah and it also shows that the name of the grand father is also shown in the possessory column. Therefore, it is considered that the suit is filed for the permanent injunction it is held that in view of Exs.A1 to A12 and the evidence of PWs: 1 and 2, it can be held that the PW1 is in possession as on the date of filing of the suit.

15. The defendant No.2 filed her chief affidavit as DW1 and she got marked Exs.B1 to B9. In the cross-examination she admitted as “it is true we have not filed any documents to show that we are in 9 possession of suit property”

16. The above admission of DW1 shows that though defendants claims to be in possession, but the admission in the cross-examination goes against their written statement. And further they have not filed any document to establish that they are in possession of the suit schedule property. It is also admitted by DW1 that they did not file any documents to show that they have preferred an application before the RDO for the cancellation of pattadar pass books issued in favour of the plaintiffs, also goes to show that inspite of having knowledge they being remained silent only categorically establishes that they are deposing falsely. Even Exs.B1 to B9 are admitted to be in the name of

Macharla Kanakaiah, therefore it is held that the evidence of DW1 is not helpful to establish the contents of the written statement.

17. DW2 has filed the photographs marked as Ex.B10 and deposed that she does not know the contents of her chief affidavit. Further deposed that she is not having any knowledge whether any pahanies are filed before this court. She stated that either her father-in-law or herself never filed any application before RDO challenging the entries of the plaintiffs and his father. It is also admitted that the police complaint lodged by plaintiff and they went to the police station.

Hence, the evidence of DW2 shows that without knowledge of the facts she is deposing falsely and the admission of DW2 that the police complaint is filed by the plaintiff suggests that when the defendants tried to interfere, the plaintiff took action against the defendants by filing the complaint.

10

18. DW3 is the photographer who deposed in his evidence that he has no knowledge about the survey number and so also in his chief affidavit do not disclose the date of taking the photographs. He also stated that he did not produce the documents that he is running a photo studio and he is a photographer. He is not having any knowledge about the suit. His evidence is only pertaining to taking of the photographs and as per DW2 the said photographs which are filed by her do not disclose any survey number therefore the said Ex.B10 also not helpful to the defendants. Hence in view of the facts and circumstances and reasons assigned by this court it is held that the defendants are entitled to be restrained. Hence, Issue Nos.1 and 2 are answered in favour of the plaintiff and against the defendants.

19. Issue No.3: As issue Nos.1 and 2 are answered in favour of the plaintiff therefore the plaintiff is entitled for relief of permanent injunction.

20. Issue No.4: In the result, the suit is decreed with costs by granting permanent injunction in favour of the plaintiff as against the defendants, restraining the defendants, their legal heirs, their workmen etc. permanently from interfering with the peaceful enjoyment and lawful rights of the plaintiff over the suit land.

(Typed to my dictation, corrected and pronounced by me in the open court on this the 3 rd day of December, 2018.)

Sd/-

FAC - VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

11

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS:

PW1: Sri Ramula Peddanna - None –

EXHIBITS MARKED

FOR PLAINTIFF:

Ex.A1: CC of pahany in the year 1989-90 Ex.A2: CC of pahany in the year 1990-91 Ex.A3: CC of pahany in the year 1991-92 Ex.A4: CC of pahany in the year 1992-93 Ex.A5: CC of pahany in the year 1993-94 Ex.A6: CC of pahany in the year 2008-2009 Ex.A7: CC of pahany in the year 2009-2010 Ex.A8: Legal Notice sent by the plaintiff dated 25.02.2011, 21.04.2011. Ex.A9: Reply Notice dated 26.07.2011 Ex.A10: Two acknowledgment cards Ex.A11: Two postal receipts Ex.A12: Pattadar Pass Book vide bearing No.1566 dated 20.12.2008 along with title deed book.

FOR DEFENDANTS:

Ex.B1: CC of Pahani for the year 1994-95 Ex.B2: CC of Pahani for the year 1995-96 Ex.B3: CC of Pahani for the year 1996-97 Ex.B4: CC of Pahani for the year 1997-98 Ex.B5: CC of Pahani for the year 1998-99 Ex.B6: CC of Pahani for the year 2003-04 Ex.B7: CC of Pahani for the year 2006-07 Ex.B8: CC of Pahani for the year 2008-09 Ex.B9: CC of Pahani for the year 2009-10 Ex.B10: Two photographs dated 28.09.2011 along with CD (marked subject to objection that the bill is not filed as per Sec.65-B of Indian Evidence Act.)

Sd/-

FAC - VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

1

IN THE COURT OF THE II - ADDITIONAL SENIOR CIVIL JUDGE, WARANGAL.

Wednesday, this the 8th day of January, 2020.

Present: Sri J.Vikram, I-Additional Senior Civil Judge, FAC.II Additional Senior Civil Judge, Warangal.

O.S.No. 447 OF 2005

B E T W E E N

Vallala Mahesh Kumar, S/o. Veerabhadram, Age: 34 years, Occ: Business, R/o.H.No.11-54, R.P. Road, Manchiryal, Adilabad District.

.... Plaintiff

A N D

1. Vallala Andalu W/o. Late Sreenaiah, Age: 76 years, Occ: Household, R/o. Elagandula Amrutha Smaraka Vrudhapya Ashramam, Near Gulabi Garden, Koppula Ganapathipuram, Rangashaipet, Warangal (Died per LR)

2. Dr. Nagabandi Veerabhadraiah, S/o. Veeraiah, Age: 54 years, Occ: Medical Practitioner, R/o. H.No.16-5-310, Under Bridge Road, Warangal

3. Vallala Veerabhadram S/o. Late Sreenaiah, Age: 64 years, Occ: Nil, R/o. H.No.11- 54, R.P.Road, Manchiryal, Adilabad. (Added as per order in IA No.231/2007 dt.5.4.2007)

4. Chakka Kavitha, W/o. Dr. Chakka Venkata Shiva Prasad Mukharjee, Age: 41 years, Occ: Govt. Medical Officer, H.No.9-10-52, Durgeshwara Swamy Temple Street, Warangal. (Impleaded as per order in IA No.35/2018 dt.02.04.2018) …. Defendants * * *

This suit is coming up before me for final hearing in the presence of Sri Margam Veeraswamy, Advocate for plaintiff and of Sri T. Ramanakar Raj, Advocate for defendant's 1 and 2, and of Sri D. Prem Sagar, Advocate for defendant No.3 and defendant No.4 is set exparte; and after hearing and on perusal of the material on record and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1.This is suit for specific performance of contract dt. 22.03.2003 directing defendant No.3 as legal heir of first defendant to execute and register sale deed with delivery of possession of suit property in favour of plaintiff and to cancel the registered sale deed made in favour of defendant No.2 dt.

21.04.2005 and if Defendant No.3 fails to execute and register the same may be done by the Court with delivery of possession by due process of law. That a 2 decree for mandatory injunction for demolition of illegal construction raised by defendant over the suit property under the guise of registered sale deed. That for recovery of damages to a tune of Rs.10,000/- for dismantling the tiled suit house by defendant No.2 along with costs

2. The suit schedule property is :- Suit tiled house bearing Municipal

No. 9-10-52 New 89/605 Old, measuring 21 Sq.yards, situated at

Durgeshwara Swamy Temple Street, Girmajipet, Warangal is bounded by:

East:Vacant land of Nagabandi Chandrashekaram West:Municipal Road North:Vacant land of Belide Kameshwar Rao South:House of T. Kanakachary

The brief averments of the plaint are that :

3.It is the case of the plaintiff that the first defendant is his paternal grandmother who is absolute owner and possessor of the plaint schedule property by virtue of registered gift deed vide doc No. 177/1961 dt. 21.02.1961 which is executed by the mother of defendant No.1 and ever-since then she is enjoying the possession of the said property.

4.The defendant No.1 along with plaintiff and his father are permanent residents of Manchiryal of Adilabad District as the father of the plaintiff is only son of defendant NO.1. Hence, all were residing under one roof and the plaintiff and his father were taking care of defendant No.1 due to her old age.

5.The defendant No.1 executed will deed dt. 26.09.1989 out of love and affection towards the plaintiff and bequeathed the house property situated at Manchiryal bearing No. 11/54 at RP Road Manchiryal and as well as the suit house at Warangal.

6.It is submitted that during March 2003 the defendant No.1 expressed her intention to sell the suit schedule property for which the plaintiff and his father initially raised objection but the defendant No.1 was adamant to sell the suit house to any intended persons at Warangal.

7.The plaintiff submits as he was interested to retain the suit house hence, decided to purchase the same from defendant No.1 and therefore, the 3 bargain was settled at Rs.3,50,000/- and an agreement of sale was executed vide dt. 22.03.2003 and an amount of Rs.3,00,000/- towards part of sale consideration was received towards the agreement of sale and balance sale consideration of Rs.50,000/- was agreed to be payable on the date of registration of the sale deed. The said agreement of sale was scribed by MD.

Anuwarulla a document writer at Manchiryal and attested by Sri M Omaiah and

Ch. Laxminarayana and V. Veerbhadram. No condition or stipulation about payment balance sale amount as per the recitals of the agreement of sale. But, in spite of the same the plaintiff expressed his readiness to perform his part of contract. However, for the reasons better known to the defendant No.1 she was representing that she would receive the balance amount when she required or had some problems. Hence, the plaintiff is still ready and willing to perform his part of contract as per the agreement of sale dt. 22.03.2003. It is submitted that the defendant No.1 deviated from the terms of the agreement of sale to cause loss to the plaintiff and therefore, on 12.04.2003 the plaintiff has issued paper publication in the Warangal edition to the general public not to purchase the suit house. In view of the agreement of sale entered by the defendant No.1 in respect of the suit house.

8.The defendant No.1 after execution of said agreement of sale came down to Warangal and started living in the suit house at Warangal, It is submitted that as the defendant no.1 is his own paternal grandmother therefore, the plaintiff did not insist for delivery of possession.

9.The defendant No.1 in collusion with defendant No.2 consequently executed registered sale deed in favour defendant No.2 vide document No.

3619/2005 dt. 21.04.2005 and the said transaction by defendant No.1 is made clandestinely taking advantage of the absence of the plaintiff and old age of defendant No.1. The defendant No.2 dismantled almost the entire suit house.

Hence, on 10.06.2005 again a paper notification was made and warned defendant No.1 and 2 regarding the illegal registration of suit house in favour of defendant No.2 and kept on notice for initiating steps for specific 4 performance of agreement of sale besides claiming monetary damages for dismantling the tiled suit house. In response to the aforesaid notification the defendant No.1 as a reply in paper publication dt. 12.06.2005 denied execution of agreement of sale in favour of plaintiff and as well as denied the will deed and admitted execution of sale deed in favour of defendant No.2 in respect of the suit house. Hence, the plaintiff for violating of agreement of sale dt.

22.03.2003 got issued legal notice to defendant No.1 and defendant No.2 vide

dt. 20.06.2005 and demanded for specific performance of agreement of sale

and by receiving the balance sale consideration.

10.It is submitted that the said transaction between defendant No.1 and defendant No.2 is not binding on the plaintiff and it will not create any title to defendant No.2. it is further submitted that the defendant No.1 died on 20.12.2006. Defendant No.3 is the defendant No.1’s legal heir and successor who succeeded to her estate hence, being a legal heir the defendant No.3 is liable to perform the part of the defendant No.1’s contract and execute the registered sale deed in respect of the suit property in favour of the plaintiff by receiving the remaining sale consideration (added vide IA No. 95 of 2012 dt.

20.06.2012).

11.The defendant No.2 intentionally transferred the suit house in favour of defendant No.4 in spite of the orders not to transfer the suit house as per the orders passed vide CMA No. 15 of 2006 on 30.10.2006 by way of gift settlement deed vide document No. 2253 2008 dt. 15.08.2008 hence, defendant

No.4 is impleaded since she is in possession of the suit schedule house(added as per orders in IA No. 35/2008 dt. 02.04.2018). Hence, the suit.

12.The defendant No.1 filed her written statement admitting the relationship and also partly admitting the para’s 3 and 4 of the plaint and the remaining contents of the plaint have been denied by the defendant No.1 . The defendant No.1 submits that the son of the defendant No.1 use to come to

Warangal and stay days together and borrowed money from friends and relatives. When he left to Manchiryal the creditors use to come and demand 5 this defendant for discharge of the debts made by her son and she used to pay the borrowed amounts. The first defendant did not allow the plaintiff either to enter into suit house or to stay in the suit house. It is the second defendant and his wife, daughter, son and his daughter-in-law who are the doctors and are the close relatives of this defendant who looked after health and care during her stay at Warangal. The defendant No.1 submits that she has never executed any paper much-less will deed and also the alleged agreement of sale deed in favour of the plaintiff for the sale of suit house. She submits that the thumb impressions on the said documents are forged and the persons named therein are created fabricated to knock away the properties of this defendant at

Manchiryal and Warangal. In fact the house at Manchiryal bearing No. 11-54 was sold away by this defendant for her needs and necessities particularly for her medical expenditure and for her livelihood in the month of march or April 2006.

13.Further submits that the first defendant for her future maintenance sold the suit house under registered deed for valuable consideration delivered the possession tot he second defendant. Further, she is happy after selling the suit house and house at Manchiryal by receiving valuable consideration and leading peaceful and normal life at the fag end of old age. She also denied receiving of Rs.3,00,000/- out of Rs.3,50,000/- and contended that the plaintiff is unemployed engineering graduate and in order to knock away the properties of this defendant created false documents with the assistance of his yes-men through his father Veerabadram.

14.The second defendant filed his written statement denied the contents of plaint in toto. The defendant No.2 submits that the third defendant is not the legal heir to the estate of the deceased first defendant and this defendant alone by virtue of registered sale deed vide document No.

3619/2005 dt. 21.04.2005 is the absolute owner of the suit schedule property.

It is submitted that the plaintiff nor his father, the third defendant have any sort of income of their own and even unable to maintain themselves at Manchiryal 6 arriving on petty sales of food articles on streets. The plaintiff was unemployed and divorced without any children. The third defendant was only son to the first defendant and the plaintiff is only son of the third defendant. The plaintiff though a diploma holder in education and unemployee has got full knowledge in creating documents and manufacturing documents introduced the will deed by impersonating the first defendant as an executant of the said will deed vide document No. 9/1989 dt. 3.10.1989 at sub-registrar office Manchiryal of

Adilabad District.

15.The defendant submits that the first defendant being absolute owner and possession as alienated the suit house in favour of the second defendant under registered sale deed for a valuable consideration of

Rs.4,00,000/-. Further, plaintiff got issued legal notice dt. 23.06.2005 through his advocate to the first defendant and to this defendant for which the first defendant got reply dt. 30.06.2005 through her advocate and denied each line in word to word. It is submitted that the first defendant passed a receipt dt.

25.04.2005 to the first defendant about acknowledge of Rs.47,000/- and further stipulated that he will not be indebted to anybody and first defendant will not be responsible for future debts. Further, third defendant also executed an agreement dt. 24.04.2005 admitting the sale and registration of the suit house by the first defendant to this defendant and also for admitting the first defendant in a old age home at Warangal. The defendant denies the allegations and claims of the plaintiff as frivolously and therefore dismiss the same.

16.Heard the learned counsel for the plaintiff and perused the material on record.

17.My learned predecessor has framed the the following issue for trial:

1. Whether the agreement of sale dt. 22.03.2003 is valid and binding the defendants ?

2. Whether the plaintiff is entitled for specific performance of contract as prayed for?

3. Whether the plaintiff is entitled for mandatory injunction for demolishing structures raised by defendant No.2 in the schedule property?

7

4. Whether the plaintiff is entitled for the damages as prayed for ?

5. To what relief ?

18.Heard both the counsels perused the material on record.

ISSUES :

19.The plaintiff got marked Ex.A1 to A29 and the matter was deferred for further chief examination. No witnesses are examined on behalf of the plaintiff. Defendants reported no evidence hence, their evidence was closed.

No documents are marked on their behalf.

20.During the pendency of the suit IA No. 854/2017 in IA No. 805/2012 in OS No. 447/2005 the PW1 entered the witness box and got marked Ex.P1 to

Ex.P3 and was examined my learned predecessor vide orders dt. 13.12.2018 has passed common orders in IA No. 854/2017 and Ia No.807/2018 in OS NO.

447/2005 which were filed for Or.39 Rule 1 and 2 and Or.3 Rule 2 (A) it was held that in order expedite the trial by considering the documents relied by the petitioners/PW1 of the aforesaid IA. It was held that the petitions is closed and both the parties were directed to proceed with the disposal of the case.

Further, the respondent No.4 was directed not to alienate the property.

Assailing the orders dt. 13.12.2018 in IA No. 854/2017 a CMA was preferred by the appellant/petitioner/plaintiff wherein the Hon’ble II Additional District

Judge, Warangal has dismissed the CMA by confirming the orders passed by this

Court and directed both the parties proceed with trial without further delay.

Therefore, the plaintiff and the defendants were directed to proceed with the trial but the plaintiff/PW1 has failed to proceed with the suit by filing his further chief affidavit. Therefore, this Court vide orders dt. 06.12.2019 eschewed the further chief of PW1 as PW1 failed to appear and proceed with the suit.

Subsequently the plaintiff/PW1 filed petition numbers as IA No. 1084/2019 which was also dismissed on merits. Therefore, the orders dt. 06.12.2019 binds the plaintiffs since the said orders are not set aside till the date of Judgment.

21.It is held that the plaintiff is having the burden to establish the case facts but in the present case PW1 failed to enter into the witness box in spite of 8 granting several adjournments and due to which the evidence of PW1 is eschewed. It is held that the party who fails to enter into witness box to prove the pleadings raised and face the cross examination then an adverse inference as per Sec. 114 of Indian Evidence Act can be raised against that party and the pleadings of that party who failed to enter into witness box can be considered as sham, illusory and nominal in nature. Further, the said pleadings cannot be relied by the Court.

22.In the present case PW1 though has got marked Ex.A1 to A2 as failed to enter into witness box and therefore, his pleadings cannot be considered in any manner.

23.This court in support of the above facts and circumstances relies on the decision reported in AIR 1999 S.C. 1441 in between Vidhyadar Vs Mankik

Rao and another, “Wherein the Honorable Supreme Court held that “Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct“.

24.It is further held that unless and until the plaintiff enters the witness box and leads his side of evidence the burden will never shift upon the defendant. Moreover, it is considered that the weakness of the defendant is not a ground for the plaintiff to seek the relief of specific performance of contract which is an equitable relief and this Court is having discretion as to whether a relief for specific performance of contract can be granted or not. In the present case the conduct of the PW1 goes to suggest except filing of the suit he never enter the witness box to face the cross examination and therefore, this Court considers that the plaintiff is not entitled for the relief since he failed to prove and establish any of issues framed by this Court. Hence, issues No.1 to 4 are answered against the plaintiff.

9

25. Issue No.2 :-

In the result, the suit is dismissed without costs. .

(Typed to my dictation, corrected and pronounced by me in open court, on this the 08 th day of January, 2020)

I ADDL.SENIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif :- For Defendants :-

PW1: Vallala Mahesh Kumar-None-

EXHIBITS MARKED

For Plaintif:

Ex.A1 is the agreement of Sale Deed dt. 22.03.2003 Ex.A2 is the Regd. Will Deed dt. 26.09.1989 Ex.A3 is the Paper Publication Eenadu Daily, Warangal Edition,

dt. 12.04.2003

Ex.A4 is the paper publication, dt. 10.06.2005 in Andhra Jyothi, Warangal issued by counsel Ex.A5 is the reply paper publication issued by Sri T. narender, Advocate on behalf of D1, dt. 12.06.2005 Ex.A6 is the legal notice, issued by counsel Sri M. Ram Mohan Rao for specific performance of contract, dt. 20.06.2005 Ex.A7 is the reply notice issued by Srishiva Rao on behalf of defendant No.2 Ex.A8 is the letter, dt. 28.09.2005, addressed by D1 to plaintiff with cover Ex.A9 to Ex.A12 are postal receipts Ex.A13 is the postal acknowledgement of Defendant No.2 Ex.A14 is the postal acknowledgement card of T. Narender, Advocate, Ex.A15 is the postal acknowledgement of Commissioner, Warangal Municipal Corporation Ex.A16 is the returned postal returned cover sent to defendant No.1 Ex.A17 to Ex.A29 are the photographs with negatives showing the dismantled entire eight rooms of the suit property. For Defendants:- -Nil-

I ADDL.SENIOR CIVIL JUDGE,

WARANGAL.

1 OF 10

IN THE COURT OF THE VII - ADDITIONAL JUNIOR CIVIL JUDGE,

WARANGAL.

Friday, this the 30th day of November, 2018.

Present:- Sri J.Vikram, V–Additional Junior Civil Judge, Warangal. FAC - VII–Additional Junior Civil

Judge, Warangal.

O.S.No.395 OF 2009

B E T W E E N:

Sadula Ramesh, S/o. Bhoomaiah, Age: 33 years, Occ: Business, R/o. H.No.5-11-1193/4-1, Pochammakunta, Hanamkonda, Warangal District.

... Plaintiff

A N D

Tadaka Ramchandram, S/o. Kanakaiah, Age: 60 years, Occu: Retired Govt. Employee, R/o. H.No.5-11-193/3/1, C/o. Challuri Narayana, Pochammakunta, Hanamkonda, Warangal District.

. .. Defendant

* * *

This suit is coming up before me on 26.11.2018 for final hearing in the presence of Sri C. Vidyasagar Reddy, Advocate for plaintiff; and of Sri Ch. Chidambarnath, Advocate for Defendant, and upon hearing and on perusal of the material on record and having the matter stood over for consideration this Court has made the following:

J U D G M E N T

1.This suit is filed seeking permanent injunction restraining the defendant, their agents, workmen etc., from interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule property and raising any structures over the suit schedule property, and to award costs of the suit, other reliefs if any.

2. The brief averments of the plaint are as follows:

Plaintiff is the owner and possessor of the house bearing No.5- 11-1193/4-1 constructed in the open plot bearing No.16 to an extent of 212.50 Sq. yards is equivalent to 177.67 Sq. Meters out of Survey

No.85 and 86 of Lashkar Singaram (V), Hanamkonda (M), Warangal 2 OF 10

District. At the time of construction of the house, the plaintiff left 4 feet open place towards the Northern side of his house as per the norms and guidelines of the Municipal Corporation, Warangal. During the year 2005, after obtaining the house construction permission from the authorities of the Municipal Corporation, constructed house in his land under the frequent supervision of the authorities of the Municipal

Corporation, Warangal.

3. The plaintiff further submits that the defendant is the owner of the adjacent plot situated towards the Northern side of the plaintiff’s house. At the time of construction of house by the plaintiff, the defendant forcibly and high handedly collected an amount of

Rs.5,000/- from the plaintiff by falsely alleging that the plaintiff had encroached the part of the plot of the defendant without giving a chance to the plaintiff to measure the plot of the defendant and to show the already existing boundary.

4. The plaintiff submits that in his absence at his house on 04.05.2009, the defendant having no right or interest over the left over place of the plaintiff, the defendant laid beam in the suit schedule property under the slab. If the permanent injunction is not granted restraining the defendant from interfering with the peaceful possession of the plaintiff over the suit schedule property, the plaintiff will be put to irreparable loss which cannot be compensated in any terms. Hence the suit.

5. The defendant filed his written statement by submitting that the suit schedule property claimed by the plaintiff is the property owned and possessed by the defendant. The defendant is the owner and 3 OF 10 possessor of the house plot bearing No.7 out of Sy.No.90 to an extent of 310 Sq. yards situated at Lashkar Singaram village, Hanamkonda

Mandal, Warangal district, having purchased under an agreement of sale dated 07.09.1987 from Sri Godishala Eshwaraiah S/o. Veeraiah who is the owner of the said land. The said land was purchased by the defendant @ Rs.50/- per Sq. yard and the defendant paid an amount of Rs.15,000/- and the balance sale consideration of Rs.500/- was paid on 15.09.1987 to his vendor Godishala Eshwaraiah and took delivery of possession of the plot and since then the defendant is in possession and enjoyment of the same.

6. The defendant further submits that in view of his employment as a Teacher the defendant was working in various places out of

Hanamkonda town. Taking advantage of the same, the plaintiff encroaching into this defendant’s plot started construction of a residential house. Therefore, the defendant immediately filed an application before the Municipal Corporation on 28.04.2005. Later on 09.05.2005, the plaintiff with the intervention of the elders, accepted his illegal and highhanded activities of encroach of the defendant’s plot and paid a sum of Rs.5,000/- to the defendant on 09.05.2005 and the same is reduced into writing.

7. The defendant submits that the plaintiff having encroached a part of his plot constructed the house wall towards northern side of the house of the plaintiff. Therefore, the agreement dated 09.05.2005 was executed by the plaintiff and the defendant wherein the plaintiff agreed not to put any windows and ventilators on the northern house wall of the plaintiff and the Balcony raised by the plaintiff is left over as per the agreement dated 09.05.2005. The length of the plot 4 OF 10 purchased by the defendant towards eastern side is 58 feet, but after encroachment of construction of house wall of plaintiff the width is 52 feet upto the house wall of plaintiff. The land towards northern side of the house wall of the plaintiff which is claimed by the plaintiff at suit schedule property is the part and parcel of Plot No.7 out of Sy.No.90 situated at Lashkar Singaram village, purchased by the defendant under the sale agreement dated 07.09.1987 from the original owner

Sri Godishala Eshwaraiah.

8. The defendant submits that after his retirement from service, started construction of a residential house in his plot No.7 out of

Sy.No.90 of Lashkar Singaram village. The plaintiff who have already encroached a part of his plot on his northern side illegally and constructed the northern house wall of his house and having paid a sum of Rs.5,000/- and was restrained from keeping the windows and ventilators have no access towards the northern side of his house as the plaintiff construction a wall is falsely claiming his property, which is part and parcel of the plot purchased by the defendant under the sale agreement dated 07.09.1987 and the defendant has already raised pillars and other structures without touching the Balcony, which was constructed by plaintiff illegally as evident from the agreement dated 09.05.2005. The plaintiff in order to cause loss to the defendant and with a dishonest intention suppressed all the aforesaid material facts and filed the suit. The cause of action shown by the plaintiff in the plaint is created by the plaintiff for the purpose of filing of the suit.

The plaintiff is not in possession of the suit schedule property, the question of interference by the defendant does not arise at all. Hence, prayed to dismiss the suit with costs in the interest of justice.

5 OF 10

9. Basing on the above pleadings my predecessor has framed the following issues for trial:

I)Whether the plaintiff is entitled for permanent injunction as prayed for?

II) To what relief?

Heard both the counsels. Perused the material on record.

ISSUE No.1:

10. The plaintiff filed his chief affidavit as PW1 and got marked

Ex.A1-Original Registered Sale Deed dated 24.04.2004, Ex.A2-

Original permission in Proceedings No.257 dated 06.01.2005 issued by the Commissioner, Warangal Municipal Corporation, Ex.A3-Original

Notice in Roc.No.BPS/G1/4/2008 dated 07.07.2009 issued by the

Commissioner, Warangal Municipal Corporation, Ex.A4-Original

Proceedings No.223 dated 11.08.2010 issued by the Commissioner,

Warangal Municipal Corporation, Ex.A5-Certified Copy of pahani for the year 2001-2002 issued by the Dy. Tahsildar, Hanamkonda, Ex.A6-

Original House Tax Receipt issued by the Commissioner, Warangal

Municipal Corporation, and Ex.A7-Original photographs (3 Nos.) along with CD. Further, the Ex.B1-Original Agreement dated

09.05.2005, Exs.B2 to B4-Brick Wall in the photos, Exs.B5 &

B6: Photos (02) were marked through PW1. PW2-Ch.Sridher filed his chief affidavit and he is examined on behalf of plaintiff.

11. On the other hand, the defendant filed his chief affidavit as DW1 and got marked Ex.B7-Agreement of Sale (impounded duly & subject to P.R.A) dated 09.05.2005, Ex.B8-Sale Agreement dated 07.09.1987,

Ex.B9-Receipt dated 15.09.1986, and Ex.B10-GWMC Proceedings 6 OF 10 with Map dated 05.06.2009. Further, DW2-P.Mahender Rao filed his chief affidavit and he is examined on behalf of defendant.

12. According to the pleadings the case of the plaintiff is that the defendant who is the northern side owner of the plaintiff’s house has highhandedly collected amount of Rs.5,000/- alleging that the plaintiff encroached part of the plot of the defendant. Without giving any chance to the plaintiff to measure the plot of the defendant and to show the already existing boundary. It is also his case that in the year 2005 when the plaintiff was constructing his house he left 4 feet open place towards northern side as per the norms of the Municipal

Corporation and the said left over place is now the suit schedule property over which he claims permanent injunction restraining the defendant from making attempts to encroach the part of the suit property by constructing the permanent structure.

13. The defendant denied the contentions of the plaintiff and contended that an agreement dated 09.05.2005 executed by the plaintiff wherein the plaintiff agreed not put any windows and ventilators on the northern house wall of the plaintiff and the balcony raised by the plaintiff is left over as per the agreement dated 09.05.2005. More over the suit schedule property is the part and parcel of Plot No.7 out of Sy.No.90 purchased by the defendant under agreement of sale dated 07.09.1987 purchased from the original owner Godishala Eshwaraiah. Further contended that the defendant already raised pillars and other structures without touching the balcony. Hence, prays to dismiss the suit since the plaintiff is not in possession of the suit schedule property.

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14. As this is a suit for permanent injunction the burden lies upon the plaintiff to establish that he is in possession of the suit schedule property as on the date of filing of the suit. It is pertinent to note that it is not in dispute between both the parties that they are the adjacent owners and so also the dispute is only pertaining to 4’ feet width place situated in between their respective properties.

15. On perusal of the material on record the plaintiff has made an admission in his plaint averments at Para No.7 which directly hits his own case. The relevant portion of the Para No.7 of the plaint is reproduced for the sake of clarity:

“The Plaintiff submits that by taking the advantage of absence of the plaintiff at his house on 04.05.2009, laid beam in the suit schedule property under the slab.”

16. In addition to the above this court also perused the evidence of

PW1 wherein, to prove and establish his ownership and to establish that he is residing in the house, he has filed Exs.A1 to A7. Further, if the cross-examination is perused he has made some admissions which also goes to establish that the PW1 is not in possession of the suit schedule property, more over the relief of Permanent Injunction is not maintainable. The cross-examination of PW1 reveals that the PW1 admitted that the plots claimed by him is in Sy.No.85 and 86 and the plot of the defendant is in Sy.No.90 which is towards north of his plot.

He admitted that the schedule and plan appended to Ex.A1, the plot of the defendant is not shown towards north. He also admitted that in

Ex.A2 Map the northern boundary is not shown as the plot of defendant. He also admitted that the northern boundary of his plot is 8 OF 10 not straight. The said evidence of PW1 suggests that the plots of both the parties are situated in different survey numbers and though the

PW1 has stated that the defendant is situated towards northern side of his plot but the said fact is not shown either in Ex.A1 or in Ex.A2. In addition to that the defendant could elicit that there is 2 to 3” inches gap between his slab and the house of the defendant towards northwest corner. PW1 also admitted that he has paid Rs.5,000/- to the defendant on 09.05.2005 and entered into Ex.B1. The said Ex.B1 coupled with the evidence of PW1 shows that the PW1 is not in possession of the suit schedule property.

The relevant portion of the PW1 evidence is reproduced hereunder:

“It is true as per Ex.B1, I shall not open any windows or doors towards North West corner. I filed this suit in respect of the land covered by Ex.B1. It is true as per Ex.B1 no rights were given to me over the suit schedule property.”

17. PW1 also admitted that the brick wall appearing in Exs.B2 to B4 is in between his house and the suit property. He also admitted that the brick wall appearing in Exs.B5 and B6 are not constructed by him.

He adduced that he is not using the suit schedule property now. Thus the evidence of PW1 categorically shows that the relief of PW1 is not entitled to be granted in view of the material admission made by him which are entirely contradicting to his own plaint averments.

18. PW2 has filed his chief affidavit and as per his evidence it shows that he is not having any knowledge regarding the particulars of the suit schedule property and as well as the extent of the said plot of either of the parties. He admitted that the defendant constructed a compound wall around his house and the plaintiff has also constructed 9 OF 10 compound wall. It is considered that when PW1 has already constructed the brick wall which is segregating the suit schedule property from the house property of PW1 and apart from that when the PW1 has constructed a compound wall, then the plaintiff cannot claim any right over the property over which already the defendant is in possession. Even according to Ex.B1, the agreement which is entered by PW1 shows that only after knowing the contents he has executed the Ex.B1 and now he is estopped from raising any objection in this regard.

19. The defendant also entered the witness box as DW1 and he has also got marked Exs.B7 to B10 through him. The evidence of DW1 suggests that the plaintiff has tried to elicit that the suit schedule property is illegally occupied by him and that he has constructed his house without proper approval from the Municipality. It is no doubt that the defendant has made admission in this regard that he has constructed his house without the approved plan under Ex.B10 and he has also not filed the approved plan before the court, but here it is necessary to look into the aspect that when the suit schedule property is already in the possession of the defendant be it legally or illegally.

Then PW1 ought to have sought relief for recovery of the suit schedule property instead of relief of permanent injunction. Further, due to his own admissions, the PW1 now cannot take the lacunas of the defendant to seek the relief of permanent injunction which is an equitable relief.

20. DW2 who is examined by the defendant side is also not having knowledge regarding the dispute about the suit schedule property, hence his evidence cannot be relied.

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21. It is considered that since the plaintiff has failed to establish his case beyond all probabilities, therefore he is not entitled for relief as prayed for. Hence, issue No.1 is answered against the plaintiff and in favour of the defendant.

22. ISSUE No.2: In the result, the suit is dismissed without costs.

(Typed to my dictation, corrected and pronounced by me in the open court on this the 30 th day of November, 2018.)

FAC - VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT:

PW1: S. Ramesh DW1: T. Ramachandram PW2: Ch. Sridhar DW2: P. Mahender Rao

EXHIBITS MARKED

FOR PLAINTIFF: Ex.A1: Original Registered Sale Deed dated 24.04.2004. Ex.A2: Original permission in Proceedings No.257 dated 06.01.2005 issued by the Commissioner, Warangal Municipal Corporation. Ex.A3: Original Notice in Roc.No.BPS/G1/4/2008 dated 07.07.2009 issued by the Commissioner, Warangal Municipal Corporation. Ex.A4: Original Proceedings No.223 dated 11.08.2010 issued by the Commissioner, Warangal Municipal Corporation. Ex.A5: Certified Copy of pahani for the year 2001-2002 issued by the Dy. Tahsildar, Hanamkonda. Ex.A6: Original House Tax Receipt issued by the Commissioner, Warangal Municipal Corporation. Ex.A7: Original photographs (3 Nos.) along with CD.

FOR DEFENDANT: Ex.B1: Original Agreement dated 09.05.2005. Exs.B2 to B4: Brick Wall in the photos. Exs.B5 & B6: Photos (02) Ex.B7: Agreement of Sale (impounded duly & subject to P.R.A),

dated 09.05.2005.

Ex.B8: Sale Agreement dated 07.09.1987. Ex.B9: Receipt dated 15.09.1986. Ex.B10: GWMC Proceedings with Map dated 05.06.2009.

FAC - VII-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.