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IN THE COURT OF THE III ADDL. JUNIOR CIVIL JUDGE, KADAPA.
Present: Smt. K. Madhavi Devi, B.Sc., B.Ed., B.L,
III Addl. Junior Civil Judge, Kadapa
Saturday, this the 17th day of March, 2012.
O.S.No.1123 / 2006
S. Venkata Subbamma.… Plaintiff.
Vs.
1.D.V. Venkatamma.
2.D.v. Srinivasulu. … Defendants.
This suit coming on 12.03.2012 for final hearing before me in the presence of Sri P. Rajendra Prasad, Advocate for the plaintiff and Sri P.
Subramanyam, Advocate for the defendants and having stood over for consideration till this day, this Court delivered the following:-
J U D G M E N T
The suit is filed for grant of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule site AFG shown in the plaint plan in any manner by raising any construction or removing mud or in any other manner in the said AFG site.
The brief averments of the plaint are as follows:-
It is the case of the plaintiff that she is the owner of the hut and vacant site in Sy.No.53/1 shown as A B C D E F G H I in the plaint plan and the said Seshamma gifted her property to her daughter,
Subhadramma and two other daughters and on 25.5.1983 the plaintiff purchased the said property from Subhadramma to an extent of Ac.0.02 cents and after execution of sale deed the plaintiff took possession and enjoyment of the same and plaintiff removed the hut and constructed a pucca house in the site ABCDEF in the year 1985 and the site AFG is 2 irregular and is not according to vasthu and the plaintiff did not constructed building in AFG site but kept it as vacant site adjoining to her house in
ABCDEF and the plaintiff has been in possession and enjoyment of the site
AFG and using it for keeping her materials for building stones, for repairing walls, white washing to the wall of AF and the plaintiff also laid a water pipe line in the site AFG adjoining the AF wall on its west and also using for white washing etc., and the plaintiff is absolute owner of AFG site and no body else has any right or possession over the site and defendants who are having their vacant site to the further west of AG line have been forcing the plaintiff to sell the site AFG to them with the support of their friends and relatives in the locality who are also demanding the plaintiff and her husband to sell the site AFG to defendants and the defendant's husband purchased the site to the west of AG line in the year 1986 and the site is only Ac.0.02 cents which does not include the site AFG. Hence the suit.
2. On the other hand the defendants filed written statement contending that the 2nd defendant is the son of 1st defendant and 2nd defendant husband D.V. Subbarayudu purchased an extent of Ac.0.02 cents in Sy.No.53/1 and he took possession of the said vacant site on the same day and he enjoyed the same during his life time and after his death the said property devolved upon his wife and only son ie., defendants and since they have been in peaceful possession and enjoyment of the said property and she does not admit the right and authority of Seshamma to execute gift deed dt.20.4.1948 in favour of her daughter Subhadramma and she also dispute the right and authority of Subhadramma to execute sale deed dt.25.5.1983 in favour of the plaintiff. It is further stated that the plaintiff is claiming the site shown as AFG in the plaint plan on the strength of the sale deed dt.25.5.1983 and the measurements as mentioned in the said 3 documents does not tally with the measurements mentioned in the plaint plan and the said measurements are exaggerated in the sale deed of plaintiff and plaintiff constructed RCC building upon the brim of her site on the western side and she did not leave any space on the western side and the AFG site as shown in the plaint plan is part and parcel of property of the 1st defendnat and they have been in possession and enjoyment of the same and the plaintiff was never in possession and enjoyment of the same in any manner and the plaintiff has no title and possession over the AFG property and the site of ABCDEFG claimed by the plaintiff is in excess of
Ac.0.02 cents in her document and there is no cause of action for filing the suit. Finally they prays for dismiss of the suit with costs.
3. Basing on the rival contentions the following issues were framed for trial.
1) Whether the plaintiff is entitled for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaint schedule property AFG as shown in the plaint plan by raising any construction of removing mud of in any other manner in the said AFG?
2) Whether the plaintiff is in possession and enjoyment of the plaint schedule property?
3) To what relief?
4. During the course of trial, on behalf of the plaintiff the plaintiff filed chief affidavit and examined as P.W.1 and also examined
P.W.2 and P.W.3 and Exs.A.1 to A.4 are marked on his behalf. On behalf of the defendants, no evidence was produced and documents were not marked.
5. Heard arguments from both sides.
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6. ISSUE NO1 AND 2:-
The learned counsel for the plaintiff argued that on 25.5.1983, the plaintiff purchased the suit schedule property from Subadramma to an extent of Ac.0.02 cents and immediately the position of the property delivered to the plaintiff along with the kottam after the execution of sale deed since then the plaintiff is in possession and enjoyment of the property and further submitted the plaintiff removed the hut and constructed pucca house in the site ‘ABCDEF’ in the year 1985 and the site ‘AFG’ is irregular and is not according to vastu. As such the plaintiff did not construct the building in ‘AFG’ site but kept as vacant site adjoining her house and also using it for repairing walls and white wash. Further the plaintiff also laid a water pipe line in the site ‘AFG’ adjoining the ‘AF’ wall on its west and also using for white washing and the plaintiff is the absolute owner of the ‘AFG’ site but the defendants who are having their vacant site to the further west of ‘AG’ line have been forcing the plaintiff to sell the site ‘AFG’ to them and also the husband of the first defendant purchased site to the west of ‘‘AG’ line in the year 1986 only to an extent of Ac.0.02 cents which does not include the site ‘AFG’. But the defendants trying to encroach into the site and forcing the plaintiff to sell their property to the defendants and further the plaintiff has prima-facie right, title and possession in the property ‘AFG’.
7. On the other hand, the defendant No.1 filing written statement by contending that she along with second defendant who is her son are living jointly and her husband by name B.V.Subbarayudu purchased an extent of Ac.0.02 cents in survey No.53/1 of Nagarajupalli village by taking position of the said vacant site to enjoy the site during his lifetime after his demise, the said property devolved upon her and only son. Since then have been in peaceful possession and enjoyment and also first 5 defendant does not admit the right and authority of Sheshamme to execute gift deed dt.20.04.1948 in favour of her daughter Subadramma and also dispute with the right and authority to execute sale deed dt.25.05.1983 in favour of the plaintiff and also the said Subadramma how alone can sell the property in favour of the plaintiff when a gift was made not only in favour of
Subadramma and also in favour of her two sisters. Further the plaintiff is claiming the site shown as ‘AFG’ in the plaint plan on the strength of the sale deed dt.25.05.1983 and also the measurements mentioned in the said document does not tally with the measurements shown in the plaint plan and also there is no mentioning of the said measurements in the parent document i.e., registered gift deed dt.20.04.1948. As such, there is no basis for the measurements mentioned in the documents of the plaintiff.
The ‘AFG’ site as shown in the plaint plan is part and parcel of the property of this defendant and plaintiff was never in possession and enjoyment in the ‘AFG’ property and also plaintiff has no title.
8. To prove the case of the plaintiff examined as P.W.1 and
P.W.3 and got marked Ex.A.1 to A.4. The evidence of P.W.2 eschewed as
P.W.2 did not trun up for cross examination On oral testimony of P.W.1, he supported the version of the plaintiff in his examination affidavit during cross examination, he deposed that his wife is an illiterate but she knows to put her signature and the age of the plaintiff is about 55 years and suffering from sugar and High-blood-pressure. He denied the suggestion that plaintiff is hale and healthy. He intentionally failed her to enter into the witness box.
Further deposed he knows the contents in Ex.A.1 and admitted that he filed certified copy of Ex.A.1. He does not know how the said property was acquired by one Sheshemma. P.W.1 deposed that there are no measurements mentioned in Ex.A.1 and admitted the schedule of Ex.A.1, 6 there is mention of kottam of Ankanams (paraboda kottam) and P.W.1 admitted there is no mention in Ex.A.1 about the measurements of vacant site all around the kottam. The measurements shown in Ex.A.3 is an extent of Ac.0.02 cents. The measurements of kottam were not specifically mentioned in Ex.A.3. He denied that without any basis, the measurements are exaggerated in Ex.A.3. P.W.1 further deposed that there is a vacant site towards western site of Ex.A.3 abutting the hut. P.W.1 admitted that in the schedule of Ex.A.2 towards southern side of kottam, there is a vacant site of vendor of the plaintiff. P.W.1 further deposed that he did not obtain approval plan for the construction of RCC house and he gone through the surveyor report and admitted that as per the surveyor report, there is no vacant site shown in the plaint. Further P.W.1 deposed the vacant site as shown in the yellow box in the surveyor sketch comes to an extent of 8 feet which is his property. P.W.1 further deposed that he does not know as per the surveyor report, the disputed property also false in property of defendant and he admitted that towards the western side of Ex.A.1 property, there is vacant site of the defendant. P.W.2 filed chief affidavit but he did not turn up for cross examination. Hence the evidence of P.W.2 eschewed by this court. The evidence of P.W.3 reveals that the plaintiff purchased the land from one Subadramma to an extent of Ac.0-02 cents and also Subadramma sold away the property to the plaintiff in the year 1982 and at the time of purchase, there is a kottam. P.W.3 admitted on the western side of the said land, there is a land belongs to the defendant
No.2 and also admitted the said Subadramma alone sold away the property and signed on the sale deed but she does not know whether the other sisters were signed on the sale deed or not and also does not know the measurements of Ex.A.1 and Ex.A.2 and also P.W.3 admitted the said 7 kottam was collapsed and after that the plaintiff constructed the building.
He denied that the plaintiff not left the space on the western side.
9. On the other hand, the defendants not adduced any evidence either oral or documentary to prove his contentions in the written statements.
10. On perusal of documentary evidence of plaintiff, Ex.A.1 is the original gift deed dt.20.04.1948, Ex.A.2 is the certified copy of sale deed dt.22.08.1986 executed by Narayanamma in favour of D.V.Subbarayudu.
Ex.A.3 is the sale deed dt.25.05.1983 executed by Subadramma in favour of plaintiff to an extent of Ac.0.02 cents. Ex.A.4 is the rough sketch.
11. As per the allegations of the plaintiff the defendants are trying to trespass into AFG site. To prove her case the plaintiff filed link document Ex.A.1 which was executed by Anchala Seshamma in favour of
Geddam Subbadramma. The boundaries in Ex.A.1 gift deed discloses that
Sy.No.53/1 to an extent of Ac.0.02 cents, on the western side her own another house, eastern side public rastha, north public rastha, south
Narayanamma Bidugujaga and in between 2 ankanam Boda kottam. The other document ie., Ex.A.3 sale deed dt.25.5.1983 executed by G.
Subbadramma in favour of plaintiff recitals of Ex.A.3 discloses that
Sy.No.53/1 and bounded by East : public rastha, western side G.
Narayanam bidugu jaga and north Public rastha, south Mila Narayanamma
Bidugu kottam. There is no measurement in present document. On the western side as per Ex.A.1 there is another own house belongs to vendor of the defendant. In Ex.A.3 on western side G. Narayanamma Bidugujaga. As per Ex.A.2 recitals G. Narayanamma sold away property in Sy.No.53/1 to the D.V. Subbarayudu. There is no dispute with regard to the house of the 8 plaintiff, only dispute in relating to AFG portion of vacant site. To decide the dispute it is necessary to measure the site of the both parties according to their documents as the property belongs to the same vendor as per Ex.A.1 gift deed discloses that on the western side there is another own house belongs to her. So the dispute belongs to vacant space between plaintiff's house and defendant's site who purchased under Ex.A.2. Further there is no measurement in Ex.A.1 document as per the contention of the defendant
No.1 the plaintiff exhagenatre the measurement in Ex.A.3 as there is no measurements in present document Ex.A.1. Mere filing of documents is not sufficient without adducing evidence to support the contents in the document to prove the version of plaintiff.
12. On verification of the report of Advocate Commissioner it is observed that the Advocate Commissioner executed his warrant alongwith
Mandal Surveyor and prepared rough plan after for measured the site of the petitioner as per the document and disclosed the same in his rough plan in white colour and also Surveyor fixed street survey boundary as per street survey records and shown the same in plan marking with red colour and also the vacant site shown in the yellow colour which discloses in the plan is related to the respondent. In the evidence of P.W.1 he deposed that he does not know as per Surveyor report, the disputed property also false in property of the defendant and he admitted that towards the western side of
Ex.A.1 property there is a vacant site of the defendant. The plaintiff if feels that the respondent filed by the commissioner is not property along with the sketch prepared by the Surveyor, but he has not chosen to examine the
Advocate Commissioner to elicit the facts and defects in the report of the commissioner. The report of the Advocate commissioner is part and parcel of the record. Even though the advocate commissioner is not examined. The 9 report of the Advocate commissioner is clearly disclosing that the vacant site also shown in the yellow colour which discloses in his plan is related to the defendant. On this aspect the plaintiff not taken steps to examine advocate commissioner and plaintiff failed to establish her contention by adducing cogent evidence. The defendant also not adduced any oral or documentary evidence.
13. According to the citation reported in 2002 (1) ALT 466 (D.B.) wherein it is held that:
“The plaintiff has to prove his own title, and the plaintiff should not depend upon the weakness of the case of the defendants.
The defendants need not pleaded and prove the possible defects in the title of the plaintiff. Even if the defendants fails to establish this own title, the plaintiff must be non-suited, if he failed to establish his title.
The burden is heavily lies on the plaintiff to prove her contention about her right and title and legal and settled possession and enjoyment and the plaintiff should not depend on the weakness of the case of the defendants”.
14. There should be clarity about the measurement of the property of plaintiff. To know about the encroachment if any in the schedule mentioned property by the defendant there should be clarity in the measurements. But plaintiff failed to adduce evidence in relating to that aspect. There is no evidence to show that the defendants are encroached in to the AFG portion schedule property. Theses issues are answered accordingly.
15. ISSUE No.3:-
To what relief?
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In the result, the suit is dismissed without costs.
Dictated to the Personal Assistant directly on computer system,
corrected and pronounced by me in the open court, this 17th the day of
March, 2012.
Sd/- K. Madhavi Devi
III ADDL. JUNIOR CIVIL JUDGE,
KADAPA.
Appendix of Evidence.
Plaintiff: Defendants:
Witnesses examined for:
P.W.1: S. Janardhan Reddy. - Nil - P.W.2: G. Narayanamma. (Eschewed)
P.W.3: R. Subbarayudu.
Exhibits marked for Plaintiff:-
Ex.A.1: Original registered sale deed dt.20.4.1948 executed by Seshamma in favour of Subhadramma and others.
Ex.A.2: Certified copy of sale deed dt.22.8.1986.
Ex.A.3: Original sale deed dt.25.5.1983 executed by Subhadramma in favour of plaintiff.
Ex.A.4: Rough plan.
Exhibits marked for Defendants:- Nil.
Sd/- K. M. D.
III A.J.C.J. Kdp.