(FAIR)1
IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, BADVEL.
Present: Sri K.Mothilal,
Spl. Judl. Magistrate of I Class for Prohibition and Excise Offences, Kadapa. FAC Principal Junior Civil Judge, Badvel
Wednesday, this the 15th day of December, 2021
Original Suit No.94/2020
In between:
1. Jarri Pothu Bala Subbaiah, S/o Polaiah, Religion by Hindu, aged about 35 years, occ:Agriculturist, Residing at ST colony, Porumamilla town, Ranga Samudram Panchayath, Kadapa District.
2.Jarri Pothu Bhu Lakshumma, W/o Bala Subbaiah, Religion by Hindu, aged about 34 years, occ:Agriculturist, occ:Coolie, Residing at ST colony, Porumamilla town, Ranga Samudram Panchayath, Porumamilla (P), Kadapa District.
. . . Plaintiffs –Vs -
1. Penubadi Jaya Chandra, S/o Ramaiah, Religion by Hindu, aged about 20 years, occ:Agriculturis, Residing at ST colony, Porumamilla town, Ranga Samudram Panchayath, Kadapa District.
2.Penubadi Ramulamma, D/o Ramaiah, Religion by Hindu, aged about 40 years, Un married, occ:Agriculturis, Residing at ST colony, Porumamilla town, Ranga Samudram Panchayath, Kadapa District.
3.Koneti Ramana, S/o Ankaiah, Religion by Hindu, aged about 38 years, occ:Agriculturist, Residing at ST colony, Porumamilla town, Ranga Samudram Panchayath, Kadapa District.
. . . Defendants No.1 to 3
This suit coming on this 24.11.2021 day for final hearing before me in the presence of Sri P.V.N Prasad, Advocate for plaintiffs and of Sri
D.Brahma Reddy, Advocate for Defendants No.1 to 3, and this court delivered the following:-
:: J U D G M E N T ::
1. The Plaintiffs is filed suit for permanent injunction restraining the Defendants No.1 to 3 and their men from interfering with the peaceful possession and enjoyment of the suit site by the plaintiffs and for costs.
(FAIR)2
2. The brief facts of the plaint contents are as follows:-
The Plaintiffs occupied AC.0.04 cents in SY No.1002 of Ranga
Samudram village fields about 17 years back and raised Thatched hut.
The said site is clearly described in the schedule which may here in after be called as suit site for sake of convenience and it is marked as “ABCDA” in the plaint plan. On the application of the plaintiffs, the revenue authorities issued occupency right over the suit site to the plaintiffs on due enquiry on 20.02.2004. Since then, the plaintiffs are enjoying the suit site with absolute rights. About four years back, the plaintiffs constructed a house in the suit site marked as 'H' in the plaint plan. The plaintiffs are also raised compound wall all around the suit site with an entrance on
North - East corner marked as 'G' in the plaint plan and residing there in.
The Panchayath authorities allotted Door No.12/10 to the afore said house and collecting house tax from the 2nd plantiff under assessment No.1851.
As such, except, the plaintiffs none else including the defendants are nothing to do with the suit site.
3.It is further submitted that the 1st Defendant is the Nephew of the 2nd Defendant and the 3rd Defendant is the brother in law of the 1st
Defendant as he married the sister of the 1st Defendant by name Rama
Devi in marriage. The defendants approached the plaintiffs about more than one month back and asked them to sell the suit property to them, for which the plaintiffs refused to do so. Having grudge against the plaintiffs by fabricating the records they approached the Porumamilla Police and attempting to dispossess the plaintiffs high handedly. In that connection on 28.05.2009 A.S.I., Ganganna illegally detain the father of Plaintiff No.2 by name Kurku Venkatapathi in Porumamilla Police Station. On the applicant of the son of Venkatapathi, the Hon'ble court appointed one (FAIR)3
T.Sreedhar Advocate, Badvel as Advocate commissioner and directed him to search Porumamilla Police Station and its premises, if he found
Venkatapathi, he shall be produce before the Hon'ble court on or before 01.06.2009 at 05:00 P.M. The learned advocate commissioner serached the Porumamilla Police Statin and found Venkatapathi near Police lock up in Porumamilla Police Station and verified FIR register and centry book and noticed that no case was registered against Venkatapathi. Finally directed
A.S.I., Ganganna to hand over Venkatapathi as per the direction of that the Hon'ble Court, but he refused to do so, saying that he would produce
Venkatapathi tomorrow before the Hon'ble court. At about A.S.I Ganganna phoned up to 1st plaintiff and threatened him to hand over the suit property to 1st defendant, failing which he would be disposed through his men with the pressure of political leader and the defendants. Having no option the plaintiffs oblised to file this suit for permanent injunction restraining the defendants and their man not to interfere with their peaceful possession and enjoyment of the suit property. Hence, the suit.
4.Written statment on behalf of Defendant No.1 is filed
and Defedants Nos. 2 & 3 adopted the same through a memo,
dated 14.07.2009 which are as follows:
(a)It is submitted that Sy.No.1001 and 1002 of Rangasamudram village are set apart for allotment of house sites to SC.s and ST.s of the area. It is submitted that the father of the Defendant No.1 occupied
AC.0.03 cents of land in Sy.No.1001 and 1002 of Rangasamudram village about 17 years ago and after conducting enquiry granted Patta in favour of the father of the 1st defendant by name Penubadi Ramaiah. After grant of patta of the said Ramaiah constructed a Kottam and is residing there itself. Subsequently he applied for a loan to the A.P. Housing Corporation for construction of a house in the said Sy.No.1002. It is submitted that a (FAIR)4 portion of site is situated in Sy.No1001 and major portion is situated in
Sy.No1002. After considering the application made by Penubadi Ramaiah the corporation sanctioned loan for construction of the house. The said
Ramaiah who was residing in the Kottam situated in the house site has also constructed foundation and over the same constructed brick walls on all the four sides. He also constructed compound wall on all the four sides.
In the meanwhile Ramaiah was attacked with severe illness as a result of which he was taken to the Ruiya Hospital at Tirupathi. The said Ramaiah was bed-ridden and continued to stay in the hospital under going treatment. The 1st defendant had already lost his mother and the father was bed-ridden. The father Venkatapathi and the 1st plaintiff visited the
Ruiya Hospital expressing their grief and presented an amount of
Rs.10,000/- to meet the hospital expenses. However, the 1st defendant undertook to repay the same as and when he secured funds. In the mean while the plaintiffs and the father Venkatapathi spread the roumour that he purchased the suit site from Ramaiah and on that pretext demolished the Kottam and constructed a Zink Sheet Varandah over the foundation and walls constructed by Ramaiah. As none of the family members were available at Porumamilla the plaintiffs along with Venkatapathi emboldened themselves and grabbed the house site and constructed the
Zinc Sheet Varandah over the foundation and walls constructed by
Ramaiah. The alleged Patta produced is only got up for the purpose of the suit and no such Patta was granted in favour of the Plaintiff No.2. The patta is granted only in favour of the father of the 1st defendant and no patta is granted in respect of the suit site in favour of any other person.
(b) It is submitted finally the father of the 1st defendant died and thereafter the helpless 1st defendant approached the plaintiffs to handover the suit site which was illegally occupied by them. The plaintiffs did not care to allow the 1st defendant to enter into the house. Moreover, they (FAIR)5 were threatening with dire consequences. So being helpless the 1st defendant approached the District Superintendent of Police, Kadapa for taking necessary action for cheating him and for occupation of the suit site by the plaintiffs and Venkatapathi for which theyhave no title or possession. The said complaint given in the grievance cell was forwarded by the District Collector to the C.I of Porumamilla for necessary action.
Thereupon the said case was registered against Kuraku Venkatapthi and
Jerripothu Bala Subbaiah. So the plaintiffs are only trespassers and they have no title or possession.
5.Counter claim of Defendants is in written statement which are as follows:
The 1st defendant approached the District Superintendent of Police,
Kadapa for taking necessary action for cheating him and for occupation of the suit site by the plaintiffs and Venkatapathi for which theyhave no title or possession. The said complaint given in the grievance cell was forwarded by the District Collector to the C.I of Porumamilla for necessary action. Thereupon the said case was registered against Kuraku
Venkatapthi and Jerripothu Bala Subbaiah. So the plaintiffs are only trespassers and they have no title or possession. Hence, the present counter claim has been filed for decleration of right and title of the defendant over the suit schedule property and also for recovery of possession of the same with consequential relief of permanent injunction to restrain the plaintiff in interfering with the possession and enjoyment of defendant after recovery of possession.
6.Rejoinder filed on behalf of the plaintiffs which are as follows:-
It is false to allege that the father of the defendant occpied AC.0.03 cents in SY.No.1001 and 1002 of Ranga Samudram village fields about 17 (FAIR)6 years back and revenue authorities granted patta in his name and he constructed a Kottam and is residing there itself is false and created for the sake of counter claim. The plaintiffs are not aware of applying for house loan to A.P. Housing Corporation as major portion of the site is in
SY.No.1002 and the authorities sanctioned loan to him. It is false to allege in the same para that the father of the 1st defendant constructed foundation and raise brick walls an four sides and also constructed compound on all four sides, and in the mean while he was attacked with serious illness as result which he was takento Ruyia Hospita at Tirupathi. It is Himalay's false to allege in the same para that the father of
Venkatapathi and 1st plaintiff visited the Ruyia hospital and expressed their grief and presented an amount of Rs.10,000/- to meet medical expenses and the 1st defendant under took the repay the same and when he secured funds, and in the mean while the plaintiff and Venkatapathi spread the roumer that, he purchased the suit site from Ramaiah and on that, pretext, demolished the Kottam and constructed a Zink sheet
Varandah over the foundation and will be constructed by Ramaiah as none of the family member were available at Porumamilla and it is also equally false to allege in the same para no pattas was granted in the name of the plaintiff and it is only in the name of the father of the 1st defendant.
7.It is further submitts that the allegations in para 5 (b) of the written statement that after death of the father of the 1st defendant he approached plaintiffs to have over the suit site which was illegally occupied by them, and the plaintiff did not case the defendant to allow to enter into the house. It is pertinant to state here that the 1st defendant and his father is nothing to do with the suit property as such the question of allowing the 1st defendant may not arise. The other allegations in para 5(a) & (b) of the written statement are false and false and untainable.
(FAIR)7
8.It is already submitted that the plaintiff occupied the suit site about 17 years back and he constructed a house marked as “H” in the plaint plan and raised compound wall around the site occupied by the plaintiffs. The plaint may be read as part and parcel of this re joinder.
9.It is humbly submitted that the revenue authorities issued occupence right certificate on 20.02.2004 after due enquiry and they found that the plaintiffs are enjoying suit property for more than 12 years, prior to their enquiry. As such the plaintiffs perfected their title by way of adverse possession. Hence the counter claim is barred by limitation. On the other hand with out impleading the revenue authorities, as one of the party the counter claim for declaration is not maintainable.
10.It is further submits that with the support of local M.L.A and
A.S.I of Porumamilla by name Ganganna, the defendant No.1 appears that they fabricate the records for the sake of counter claim to knock away the suit properties and cause loss and hard ship to the plaintiffs, as they are helpless persons with out any back ground and support of any body in the village.
11. Basing on the above pleadings, the following issues were settled for trial :- 1Whether the plaintiff is entitled for permanent injunction as prayed for ?
2Whether the plaintiff has perfected his title by way of adverse possession ?
3Whether the defendant is entitled for declaration of suit schedule property as prayed for ?
(FAIR)8 4Whether the defendant is entitled for permanent injunction as prayed for ?
5To that relief ?
12.Originally, the present suit was filed during the year 2009 by the plaintiff and the same was registered as original suit number 97/2009 and subsequently, in view of administration of court the same suit was re- numbered as O.S.23/2018 and again the same was re-numbered as
O.S.No.94/2020 under the same circumstances as stated above.
13.On perusal of the pleadings, there is no dispute regarding the identification of suit schedule property and its locality and also the relations among the D.1 to D.3 as D.1 is the nephew of D.2, D.3 is the brother in law of
D.1 as he married the sister of D.1. The plaintiffs filed documents like Ex.A.1 to Ex.A.6, out of which, the Ex.A.1 is a plaint plan drawn by the counsel for the sake of to make easy to identify the physical features of the schedule property and as the said Ex.A1 is a self styled document, the same cannot be appreciated as unnecessary towards adjudication of dispute between the parties.
14.Issue No.1: Whether the plaintiff is entitled for permanent injunction as prayed for ?
The plantiff filed this suit by pleading that, he occupied a extent of 4 cents in Sy.No.1002 of Rangasamudram about 17 years ago and also raised a tached house and the suit schedule property is situated as if ‘ABCDA’ as mentioned in plaint plan and on the application of the plaintiff, after due enquiry, the revenue authorities issued an occupancy right over the suit schedule property and since then, the plaintiff is in possession and enjoyment over the suit schedule property with absolute rights and also constructed a house in the “H” marked area of plaint plan along with compound wall by (FAIR)9 creating an entrance on north east corner at “G” portion of plaint plan and also the panchayath authorities alloted a door number as 12/10 and collecting tax under assessment number 1851.
To prove the same, the plaintiff himself examined as PW.1 and deposed by reiterating the contents of plaint and also got examined PW.2 whose evidence is eschewed on 12.08.2015 by the court and also examined PW.3 who is a thrid party to the suit and supported the case of the PW.1. In addition to that, through PW.1, Ex.A1 to Ex.A6 are marked. Ex.A1 is plaint plan, Ex.A2 is the occupancy right certificate, dated 20.02.2004, Ex.A.3 is the House Tax receipts (2), Ex.A4 is the house tax demand register extract issued by the
Panchayath Secretary Rangasamudram, dated 10.06.2010, Ex.A5 is Electricity receipt number 08440, dated 01.03.2010 and Ex.A.6 is Ration Card.
15.The defendants contended that, Sy.No.1001 and 1002 of
Rangasamudram are set apart for allotment of house sites for the land less poor and the father of D.1 occupied 3 cents in Sy.No.1001 and 1002 at about 17 years ago and after conducting a due enquiry, the revenue authorities issued a patta in the name of father of D.1 by name Penubadi Ramaiah and there after, he constructed a Kottam and residing there itself and applied for the loan to the A.P Housing Corporation and also got sanctioned for the property in Sy.No.1002 and a part of property is also situated in 1001 and whereas, the major portion is situated in 1002 and after loan, the said
Penubadi Ramaiah constructed a foundation up to bricks wall on four corners and later, the same was grabbed by plaintiff. To prove the same, the defendant (D.1) himself was examined as D.W.1 and got marked Ex.B.1 & B.2 i.e., Ex.B.1 is Attested copy of possession certificate (Anubandam) vide
A.17/99 and Ex.B.2 is Attested copy of A.P. State Housing Corporation Limited
Beneficiary list year wise in Form - 30 for the allotment of material for the year 1999. In addition to that, the D.1 also got examined one Dyvadeenam, (FAIR)10 who is the then M.R.O of Porumamilla Mandal as D.W.2 and through him
Ex.B.5 to B.7 are marked i.e., Ex.B.5 is Attested copy of possession certificate register volume-I from the year 1998 to 1999, Ex.B.6 is Attested copy of 45th page in the said register and entries made therein for the year 1999 and
Ex.B.7 is Attested copy of Entry in Sl.No.2 in the name of father of D.1 and husband of D.2.
16.The plaintiff further contended that, after he is constructed a house in the suit schedule property, and the defendants approached the plaintiffs and asked to sell the suit schedule property for which, the plaintiff refused and there after, the defendants developed a bore grudge against the plaintiff and created fabricated records and approached police, Porumamilla to attempt of dispossession of the plaintiff from the suit schedule property and in that connection, on 28.05.2009, one A.S.I Ganganna illegally detained the father of plaintiff No.2 by name Venkatapathi in Porumamilla P.S. and an application is filed before the court to issue search warrant and accordingly, one T.Sreedhar was appointed as an advocate commissioner who made search in Porumamilla P.S. and found the illegal detention of the above said
Venkatapathi in the lock up without any entry in the general diary and also without any FIR and the above case was filed only with an intention to grab the suit schedule property. Whereas, the defendant taken a plea that, after construction of a foundation up to brick wall level on four corners, the father of defendant Penubadi Ramaiah was attacked with severe ill ness and became bed ridden and admitted in Ruya hospital, Tirupathi and the father of plaintiff No.2 by name Venkatapathi and first plaintiff came to Ruya hospital and gave Rs.10,000/- for medical expenses with agreed to repay the same whenever, they secured funds and in the village, the above persons spread a rumour that, they purchased the suit schedule property and thereby demolised the Kottam, Zink sheet Varandha over the foundation of brick wall which was constructed by Penubadi Ramaiah in the absence of D.1 and his (FAIR)11 family members and thereafter, father of D.1 died and came to know about the demolition of Zink sheet Varanda, Kottam over the foundation and approached the plaintiffs to hand over the suit schedule property but, the plaintiff did not hear the words of D.1 and as there was no other go, he approached S.P., Kadapa to take necessary action againt plaintiffs and
Venkatapathi and the same was forwarded to District Collector and from there to the C.I of Porumamilla and there upon, a case was registered against
Venkatapathi and 1st plaintiff.
In view of the above rival contensions, it is an admitted fact that, the dispute between the parties inrespect of suit schedule property went upto
Porumamilla P.S. and also there was a case registered and the allegations made by the plaintiff that, one Venkatapathi was illegally detain has to be prooved by way of documentary evidence but, no such documentary evidence is filed about the filing of petition to issue search warrant, order of appointment of advocate commissioner and also found illegal detention and the action taken by the court futher etc.,. During the cross examination of
PW.1, who admitted the facts by deposing as “It is true defendants, have
lodged complaint before SHO of Porumamilla P.S. against me, as I
am causing obstructions in enjoying their property, It is true
defendants, were also given complaint before District Collector and
SP against him. It is true in criminal case, I was arrested by the
Police, I do not know whether the revenue authories were also
certified that the defendants are in possession of suit property, by
way of reply letter to the SHO of Porumamilla, I do not know the plot
number in Anubhandam Certificate” as per the above evidence, it appears that, there is an admit fact of registering an FIR against the plaintiffs in the P.S. Porumamilla and in such circumstances, the police conducted investigation by arresting the accused in usual manner and as the FIR is admitted by the plaintiff himself, the bold allegation of illegal detention, (FAIR)12 search petition, appointment of advocate commissioner and etc., cannot be taken into consideration without iota of evidence by way of any document
before this court. During the cross examination of D.W.1, who deposed about
the cases in Porumamilla P.S. as “ In the year 2009 I have given
complaint in the police station. The said complaint was scribed by
myself on the advise of elders. I have given complaint against
Kurakula Venkatapathi, Jarripothula Rama Subbaiah, Kurakula
Sreenu. Basing on my complaint police registered a case and FIR
copy issued to my guardian as I am minor. When the learned
plaintiff consel showed the xerox copy of FIR. 106/2009 in it witness
identified his signature in column No.14. At the time of issuing FIR
copy myself and my guardian both were present ”.
17.The defendant contended that, the extent of 03 cents was occupied by the father of D.1 by name Penubadi Ramaiah in Sy.No.1001 & 1002 of Rangasamudram village at about 17 years ago and after a due enquiry, the revenue authorities granted a patta in the name of Penubadi
Ramaiah and to proove the same, the defendant got filed Ex.B.1 ie., an attested copy of possession certificate (Anubandam) vide No.A.17/1999. The counsel for the plaintiff argued that, the above Ex.B.1 is a mere attested copy and also there is no value of attested copy in the evidence without a strict proof of the same and the said Ex.B.1 attested copy cannot be taken into consideration as there is no a proper explanation by the D.1 in respect of circumstances which leads to loss of original document of Ex.B.1. It is an admitted fact that, the Ex.B.1 is attested copy and D.W.1 deposed in his evidence as “I have obtained Ex.B.1 xerox copy from M.R.O office
under R.T.I. It is true in Ex.B.1 there is no wish per as it was issued
under R.T.I Act and it was not whispered on which date it was
attested. It is true Ex.B.1 attestation was not done by finance
(FAIR)13
corporation authority. It is true the Ex.B.1 was attested by
Panchayath Raj and Rural Development office of Porumamilla. It is
true in Ex.B.1 it was not mentioned as it was compared with
original”. So, the Ex.B.1 is an attested copy and only to that extent, the plaintiff counsel objected its validity and admissibility of Ex.B.1.
18.The plaintiff contended that 4 cents of property in Sy.No.1002 of
Rangasamudram village was occupied by the plaintiffs at about 17 years ago and they raised Tached house and on 20.02.2004, on the application of plaintiffs, revenue authorities issued an occupency right over the schedule property and there after, a house door number was allotted as 12/10 by the panchayath authorities. To proove the same, the plaintiff filed Ex.A.2 i.e., occupency right certificate, dated 20.02.2004 and during the evidence of
PW.1, he gave evidence by creating several doubts about the extent mentioned in Ex.A.2 and also boundaries and delivery of the property mentioned in Ex.A.2 by the revenue authorities to the plaintiffs and the evidence of PW.1 is as “ I have filed the suit for A.C.0.3 cents, the
Anubandam certificate as Ex.A.2 was issued in favour of me and my
wife, I do not know one Penubadi Ramaiah, D.1 is son of Penubadi
Ramaiah, I do not know the survey number, I have filed suit against
D.1 and D.2 and one Vijayamma and Ramadevi, I do not know the
avernments of written statement and their documents and I have
not enquired with my counsel about the documents and written
statement of defendant, I do not know whether defendants have
pleaded that suit land was assigned in favour of Ramaiah, I do not
know whether A.E of A.P. Housing Corporation, I do not know the
Pourmamilla has addressed a reply letter to the SHO dated
08.06.2009 by informing the possession of defendant, over the suit
property. The lay out of the suit property is not filed. I have not get
(FAIR)14
the delivery of suit property to the revenue officials, it is true the
boundaries of suit property are not fixed by revenue officials and not
delivered the suit property under any written proceedings”. As per the above evidence of the plaintiff, it appears to be as no sure about the extent claimed by him and the extent mentioned in Ex.A.2 and the suit filed for 4 cents but gave evidence as if 3 cents and again gave evidence he filed the main document of Ex.A.2 in which the extent was mentioned only 2 cents.
19.In view of the above evidence of PW.1 & D.W.1 and also in view of their pleadings regarding allegations of fabrication of Ex.B.1 and Ex.A.2 are to be prooved only by way of the evidence of revenue authorities like M.R.O.
etc..,
20.In such circumstances, the plaintiff did not choose to examine any of the revenue authorities to proove the Ex.A.2 as a genuine one and duly issued by the revenue authorities after due enquiry. The case of the defendant is that, the Ex.A.2 possessery certificate is created one and the pass port size photo of the plaintiff affixed on the Ex.A.2 by removing the original photograph of another and as per the case of plaintiff, the possessery certificate under Ex.A.2 issued in the name of plaintiff but, on careful perusal of the Ex.A.2, it appears as the same was issued in the name of Jarripothula
Bala Subbaiah i.e,. 1st plaintiff and followed by his name, it was mentioned wife of Bhu Lakshumma and also the defendant was allotted the suit schedule property to an extent of 3 cents in Sy.No.1001 & 1002 of
Rangasamudram village and also availed a loan from the Housing corporation and the defendant contented that, during the year 2009 when the case was registered in Porumamilla P.S. the then Thasildhar issued a letter to the SHO
Porumamilla on 09.06.2009 and also one Sri Vasurappa, A.E., A.P. Housing
Corporation, Porumamilla issued another letter 11.06.2009 to the SHO
Porumamilla and in the said letters, the revenue authorities stated that the (FAIR)15 father of D.1 by name Penubadi Ramaiah was granted a patta in the year 1998 to 1999 and even now the name of said Penubadi Ramaiah is in existence in respect of the patta for 3 cents in Sy.No.1002. In addition to that, the plaintiff also got marked Ex.B.3 & Ex.B.4 ie., Ex.B.3 is the letter issued by Thasildar Porumamilla to the SHO Porumamilla with reference number 200/2009, dated 08.06.2009 of 09.06.2009 and also Ex.B.4 is letter issued by A.E, A.P., Housing Corporation, Porumamilla to SHO Porumamilla. As per the Ex.B.3 recitals it was mentioned in nutshell as follows:
“ I invite your attention to the reference cited, wherein
you have informed that Sri Penubadi Ramaiah, S/o Pedda
Ramaiah, caste by Yerukala (ST) of ST colony in
Rangasamudram Panchayath was granted a house site
patta in Survey No.1002 of Rangasamudram vilage in the
year 1999 and same site was granted on house site patta
to another person Sri Jerripothula Bala Subbaiah, So
Polaiah of the same ST colony and he has occupied the
said site raised a shed and residing therein. Hence, i have
been requested to clarify as to who is the rightful owner
of the site whether the first house site grantee Penubadi
Ramaiah, Jerripothula Bala Subbaiah.
In the context it is to inform you that as seen
from the House site register for the year 1998-1999
Volume 1 vide Sl.No.2 Sri Penubadi Ramaiah, S/o Pedda
Ramaiah of ST colony, Girinagar, Rangasamudram village
was granted house site patta for an extent of Ac.0.03
cents in Sy.No.1002 of Rangasamudram village on
06.01.1999. It is inforce till today.
With regard to the house site patta granted
to Sri Jeeripothula Bala Subbaiah, S/o Polaiah as referred
in your letter cited I am inform you that as seen from the
xeorx copy of possession certificate in Sl.No.566 dated
20.02.2004, it is noticed that Jerripothula Bhu
Lakshumma, W/o Bala Subbaiah was granted house site
(FAIR)16
patta for an extent of Ac.0.04 cents in Sy.No.1002 of
Rangasamudram village. The grantee of the house site
patta was clearly noted as J.Bhu Lakshumma but the
photo affixed on the possession certificate relates to a
male person. There is also a over writing in the column of
the Survey number. However in order to ascertain the
facts a through search has been made in this office rcords
room to traced out the connected house site file as well as
house site register for the year 2004. But neither the
connected filed nor the house site register of 2004 are
traced out in this office record room.
I further inform that the house site patta
issued to the deceased Penubadi Ramaiah, So Pedda
Ramaiah is still in force as the same was not cancelled.
Since the house site patta granted to deceased Penubadi
Ramaiah, S/o Pedda Ramaiah was not ordered to be
cancelled it is firmly stated that Sri Penubadi Ramaiah, S/
o Pedda Ramaiah is the right ful owner of the site. After
his demise his legal heirs will be become owner of the said
house site”.
21.On careful perusal of the above contents of Ex.B.3 letter, dated 09.06.2019, it is very clear that, there is no any entries in the house site register pertained to year 2004 in the name of plaintiff inrespect of
Sy.No.1002 to an extent of 4 cents of Rangasamudram village and also recited in the said letter that no patta was issued in the name of plaintiff in respect of suit schedule property.
On careful perusal of Ex.B.4 letter, the letter contents are as follows:
“ I invite your attention to the reference above cited,
where in you have asked for cetain clarification with
regard to sacntion of house to one Penubadi Ramaiah, S/o
(FAIR)17
Ramaiah of ST colony, Rangasamudram, Porumamilla
Mandal.
In the context it is to inform you that as seen
from the available records and registers in our office, one
Penubadi Ramaiah, S/o Ramaiah, ST colony,
Rangasamudram Panchayath, Porumamilla Mandal had
duly applied for sanction of pucca house under housing
scheme to construct in his D.K.T house site situated in
Sy.No.1001 & 1002 in ST colony, Rangasamudram
Panchayath, which was sanctioned to him by the Revenue
authorities. Accordingly on basing the D.K.T Patta and
possession certificate submitted the beneficiary P.Ramaiah
a pucca house has been sacntioned to him under the
scheme of N.F.H. 1996 and sanctioned the concerned
amount and material for construction and sanctioned the
total material as per the scheme. After completion of
some constuction since the beneficiary P.Ramaiah was
demised the remaining amount and material has been
drawn by his legal heir Sri P.Ramanaiah, as per the family
mebers certificate issued by the Revenue authorities.
Hence it is certified that as per our office records
one Late Penubadi Ramaiah, S/o Ramaiah of ST colony,
Rangasamudram panchayath, Porumamilla Mandal was
sanctioned a pucca house under housing scheme NFH-
1996 in Sy.No.1001 & 1002 in Rangasamudram
Panchayath, Porumamilla Mandal ”.
22.As per the contents of Ex.B.4, it is very clear that, the father of
D.1 applied for loan to construct a house in his D.K.T house site in Sy.No.1001 & 1002 of Rangasamudram and accordingly, the loan was sanctioned to construct a pakka house under housing scheme N.F.H -1996.
(FAIR)18
23.To proove the Ex.B.3 and B.4 letter and it contents, the D.1 filed a petition before this court in I.A.No.130/2016 with a prayer to examine the
M.R.O M.Dyvadeenam on his behalf and accordingly, the petition was allowed on 29.07.2016 and he was examined as D.W.2. and gave evidence in chief as
“D.W.2 brought one note book stating that slip was affixed on the
said note book discloses that possession certificate register volume-
I from the year 1998 to 1999 same receipt is marked as Ex.B.5. In
45 th page the entries are pertaining for the year 1999. Attested copy
filed by witness by confronting with original in page No.45, same
was marked as Ex.B.6. In Serial No.2 mentioned Penubadi Ramaiah,
S/o Pedda Ramaiah who is the father of Defendant No.1 and
Husband of Defendant No.2, same entry is marked as Ex.B.7. I have
verifed the report of Thasildhar submitted to SHO Porumamilla on
08.06.2009. It is true during the year 2009 I have worked as DTO in
said Porumamilla jurisdiction. When the learned defendant counsel
showed the report of Tahsildhar submitted to SHO of Porumamilla
08.06.2009. Witness answered that I have verified the same during
2009 year but presently the said document was not available in our
office. We are following the method for entering names in Ex.B.5
usually when ever we received any requistion from police people we
given answer to their reference after due verifying all records. It is
true only the DTO alone verify the records. It is true as Ex.B.3 to B.6
discloses that the defendant enjoying possession. It is true Ex.B.3
was prepared by me and same was attested by M.R.O after wards it
was sent to SHO porumamilla. Basing on requistion of concern SHO I
have send letter dated 08.06.2009 i.e., Ex.B.3 without enclosing any
house site pattas. From SHO of Porumamilla not sent any house site
pattas along with his requisition”. As per the evidence of D.W.2, it is very clear that, as per Ex.B.5 & Ex.B.6 as well as Ex.B.7, the name of father (FAIR)19 of D.1 by name Penubadi Ramaiah was in existence as an allottee of a property in Sy.No.1001 & 1002 of Rangasamudram village to an extent of 3 cents and the same was alloted in the year 1999 and during the year 2009, he worked as Deputy Thasildhar and he himself issued the Ex.B.3 to the
S.H.O Porumamilla P.S,. which was attested by the then M.R.O. and as per the
Ex.B.3 letter, it was categorically mentioned that, the possession certificate under Ex.A.2, dated 20.02.2004, the allottee to an extent of 4 cents in
Sy.No.1002 is clearly noted as Jarripothula Bhu Lakshumma but, the photo affixed on the possession certificate i.e., on the Ex.A.2 relates to a male person and in consolidated observation of Ex.B.1, B.3, B.4 and evidence of
D.W.2, it clearly go to show that, the orignal allottee of Sy.No. 1001 & 1002 of
Rangasamudram village to an extent of 3 cents is father of D.1 by name
Penubadi Ramaiah. Though, the plaintiff contented that, he constructed a house in the schedule property and allotted a door number 12/10 by the
Panchayathi authorities but he did not choose to examine the Panchayathi authorities to establish his possession and enjoyment basing on absolute right of owner ship over the suit schedule property and on careful perusal of the Ex.A6 House Hold card, it goes to show that, the plaintiffs are residing in the house in D.No:7-110 but not in D.No: 12/10 and however, the possession of plaintiff is admitted by the defendants but, the said possession and enjoyment is not a lawful one followed by an absolute right basing on Ex.A.2 possessery certificate. Hence, in view of the above elloborate discussion, this court came to conclusion that, though, the possession of the plaintiff is admitted but, the same is not lawful followed by right and as such, the said possession will not be considered where, there is an absolute contest by claiming right over the suit schedule property by the party to the other side.
Accordingly, the above issue is answered in favour of defendant.
During the arguments of the suit, the counsel for the plaintiff pointed out and also mentioned in written arguments that, this court has to (FAIR)20 frame two more issues like whether the counter claim is barred by limitation and whether the counter claim for decleration without impleading the revenue authorities is maintainable. Now, in view of above submissions in general the suit for decleration has to be filed within three years as per
Article 58 of Limitation Act and the present suit is not filed with in the three years and the counter claim appears as if the relief claimed after lapse of three years. But, the counter claim is also has to be treated as suit and in respect of the government property the plaintiff filed this suit in which counter claim was filed.
The counsel for the defendant argued that, the defendant need not file any seperate suit for a decleration where, the plaintiff has already stood as trespasser into the property and thereby, keeping a view of relief of declearation in counter claim, the plaintiff has to amend the suit by seeking relief of decleration but, the same is not happened in the suit and the counsel also filed an authority in Civil Appeal No.6191 of 2001 between Ananthula
Sudhakar Vs. P.Bucchi Reddy (Dead) by LRS and others in which, the Hon’ble
Supreme Court of India held that” if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believeing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may with draw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction”. As per the said authority it is clear that, when the defendant filed counter claim by seeking relief of (FAIR)21 declaration and recovery of possession, absolutely there is a cloud over the title of the plaintiff and in the present suit when, the plaintiff in the suit is in the possession with out any valid title by way of alleged Ex.A.2, the plaintiff is mere trespasser of the property and for that, there is no necessity to file the counter claim for declaration but, in the counter claim the defendants also saught a relief of recovery of possession of the schedule property which is with in the law of limitation and the defendant filed the counter claim in the suit filed by the plaintiff and as such, whenever the plaintiff got knowledge of the counter claim for the relief of declaration and recovery of possession, it is the duty of the plaintiff to implead the revenue authorities as the plaintiff also relied upon the Ex.A.2 possessery certificate as a right.
24. Issue No.2: Whether the plaintiff has perfected his title by way of adverse possession?
Though, the present issue has been framed by this court but, there is no pleading by the plaintiff in the plaint contents as if he got a right over the schedule property even by way of adverse possession other than on
Ex.A.2. As per the present issue, the plaintiff has contented that, he occupied the schedule property about 17 years ago and on application, he was granted the schedule property under Ex.A.2 and as per the case of defendant, when the father of D.1 attacked with severe ill-ness and admitted in Ruiya hospital,
Tirupathi and the plaintiff No.1 and father of plaintiff No.2 Venkatapathi approached the father of D.1 and gave of Rs.10,000/- towards medical expenses and the father of D.1 agreed to repay the same whenever the funds were adjusted but, the same was taken an advantage as if, the father of D.1 sold away his property for Rs.10,000/- and in the absence of D.1 and his family members, the plaintiffs removed the Kottam and also brick walls and now the plaintiff argued that, as the father of D.1 availed the loan in the year 1999 and construced up to foundation level along with brick walls on four (FAIR)22 corners and the materials supplied in the year 1999 and immediately, the father of D.1 fell sick and later, admitted in the hospital and in the absence of
D.1 and his family members, the plaintiffs occupied and continued to be in possession and enjoyment of schedule property and the same was may be in the year 1999 and as such, the plaintiffs got a right of adverse possession over the schedule property. Here, to appriciate this issue by mentioning a particular dates and year of the occupation plaintiffs as admitted by the defendants is not either in the evidence or in the document and as such, this court is intended to rely upon the Ex.B.4 to B.6 and on careful perusal of
Ex.B.4 to B.6, the loan was granted in the year 1999 and the plaintiff might be occupied in the same year of suit schedule property and even in calculation of the period of 12 years, which is necessary to claim a right of adverse possession over the others property, the plaintiff has to continue his possession till 2011 with out any interuption of enjoyment as per the Article 64 of Limitation Act. But, as per the record, it is very clear that, the plaintiff approached the court in the year 2009 itself as the defendants are causing obstructions in enjoyment over suit schedule property. So, the plantiff is not in the possession of suit schedule property for a period of continuously 12 years with out any obstruction. Moreover, as per the own case of the plaintiff, he entered into the property of survey number 1002 of Rangasamudram village in the year 2004 i.e., basing on Ex.A.2 possessery certificate and the possessery certificate shows the date of issuance as 20.02.2004. So, the plaintiff has to continue his possession till 20.02.2016 but, no such possession of the plaintiff over the suit schedule property. As such, the plaintiff cannot seek a right over the suit schedule property by way of plea of adverse possession. Moreover, the plea of adverse possession cannot be claimed over the property pertained to government with out a continuous possession and enjoyment over a property for a prescribed period of limitation. Accordingly this issue is answered.
(FAIR)23
25. Issue No.3 & 4 :- Whether the defendant is entitled for declaration of suit schedule property as prayed for ?
Whether the defendant is entitled for permanent injunction as
prayed for ?
The case of the defendant is that, his father by name Penubadi
Ramaiah occupied a property to an extent of 3 cents in Sy.No.1001 & 1002 of
Rangasamudram village and subsequently, afte due enquiry, he was granted a patta under Ex.B.1 in the year 1998 -1999 and later, he was attacked with severe ill ness and the father of D.1 was helped by the 1st plaintiff and father of 2nd plaintiff and taking an advantage of the above debt, they started a romour in the village as if they purchased the property of father of D.1 and in the absence of D.1 and his family members, they encroached into their property without any right and basing on the Ex.B.1, the defendants are entitled to get relief of decleration of right and title over the property in
Sy.No.1001 & 1002 and after the relief of decleration, they also entitled consequential relief of permanant injunction over the same property. But, the plaintiff contented that, he occupied the property to an extent of 4 cents in
Sy.No.1002 of Rangasamudram village at about 17 years ago and in the year 2004, he was granted Ex.A.2 possessery certificate and basing on Ex.A.2, the plaintiff got absolute right over the suit schedule property.
26.In view of the above rival contentions in respect of right and title basing on genuine documents issued by the revenue authorities, this court has to ascertain the original right and title of the suit schedule property by the documents issued by the governement. In these circumstances, this court is intended to rely upon the evidence of D.W.2, who is M.R.O and during his evidence, he deposed as “ D.W.2 brought one note book stating that
slip was affixed on the said note book discloses that possession
certificate register volume-I from the year 1998 to 1999 same
(FAIR)24
receipt is marked as Ex.B.5 in 45 th page the entries are pertaining
for the year 1999 attested copy filed by witness by confronting with
orignal in page No.45, same was marked as Ex.B.6 in Serial No.2
mentioned Penubadi Ramaiah, S/o Pedda Ramaiah who is father of
Defendant No.1 and husband of Defendant No.2, same entry is
marked as Ex.B.7. It is true Ex.B.3 was perepared by me and same
was attested by M.R.O after wards it was sent to S.H.O
Porumamilla”. As per the above evidence, it is very clear that, during the year 1998 to 1999, the father of D.1 by name Penubadi Ramaiah was granted a patta in his name and the relevant entries are also made in concerned all revenue records i.e,. under Ex.B.5 to B.7. Now, as per evidence of D.W.2, the
Ex.B.3 is a crucial document regarding the plea of the defendant that, the
Ex.A.2 patta, dated 20.02.2004 is created one and as per the contents of
Ex.B.3 letter which as follows:
In the context it is to inform you that as seen from the House site
register for the year 1998-1999 Volume 1 vide Sl.No.2 Sri Penubadi Ramaiah, S/o
Pedda Ramaiah of ST colony, Girinagar, Rangasamudram village was granted
house site patta for an extent of Ac.0.03 cents in Sy.No.1002 of Rangasamudram
village on 06.01.1999. It is inforce till today.
With regard to the house site patta granted to Sri Jeeripothula Bala
Subbaiah, S/o Polaiah as referred in your letter cited I am inform you that as seen from the xeorx copy of possession certificate in Sl.No.566 dated 20.02.2004, it is
noticed that Jerripothula Bhu Lakshumma, W/o Bala Subbaiah was granted house
site patta for an extent of Ac.0.04 cents in Sy.No.1002 of Rangasamudram village.
The grantee of the house site patta was clearly noted as J.Bhu Lakshumma but the photo affixed on the possession certificate relates to a male person. There is also a over writing in the column of the Survey number.
So, as per the contents of Ex.B.3 letter, the father of D.1 was the original allottee of the property to an extent of 3 cents in Sy.No.1001 & 1002 of Rangasamudram village and the same name of the father of D.1 was continued in the concerned registers and there is no such allottment in the (FAIR)25 name of plaintiffs in the year 2004 as under Ex.A.2. Hence, it is very clear that, the government allotted the property of 3 cents under Ex.B.1 to the father of D.1 and though, the Ex.A.2 was filed by the plaintiff, the same is not considered as genuine to an extent of create a right over the suit schedule property.
27.The defendants further argued that, after the allottment of the property under Ex.B.1, the said B.1 was not yet cancelled by way of any kind of proceedings and as such, basing on Ex.B.1, the father of D.1 is the only person having right over the property to an extent of 3 cents in Sy.No.1001 & 1002 and the father of D.1 was demised, the defendants will get same right over the property. In this juncture, this court is intended to rely upon the evidence given by D.W.2 in re cheif examination which is as “ It is true after
due enquiry we cancel the pattas. It is true in this case there is no
such proceedings automatically cancelled any pattas stands in the
name of defendant”.
In view of above discussion, the defendants are entitled for the relief of decleration of right and title over the property to an extent of 3 cents in Sy.No.1001 & 1002 and also entitle for the recovery of possession with consequential relief of permanant injunction from the date of possession handed over by the plaintiff towards 3 cents in Sy.No.1001 & 1002 of
Rangasamudram village. Accordingly, above issues are answered.
The counsel for the defendant also argued that, the Ex.A.2 i.e., the suit document for the plaintiff is not a genuine one and as such, the plaintiff did not approach this court with clean hands and thereby, the counsel for the defendant relied upon an authority reported in 2019 (1) CCC 139 (SC) and in the said authority the Hon’ble Supreme court of India held that “ Administration of justice -A party not coming to the court with clean hands and supressing facts – cannot sustain his claim for the equitable relief of permanent injunction”. As per the said authority, it is very clear that the (FAIR)26 plaintiff did not approach this court with clean and clear hands with pleadings and as such the above said authority is opt for the submission raised by the defendant counsel.
28.Issue No.5:-
In the result, the suit is dismissed, but the sans costs. The counter-claim of the defendants are declaring the right and title of the defendants over counter - claim schedule property and the plaintiffs are directed to hand over the counter-claim schedule property within three months. If the plaintiffs failed to do so, the defendants are at liberty to take delivery of possession through process of law.
(Typed to my dictation by the Stenographer Grade-III, corrected and
pronounced by me, this the 15th day of December, 2021 )
Sd/- K.Mothilal
Spl. Judicial Magistrate of I Class for prohibition and Excise offences, Kadapa FAC Prl. Junior Civil Judge, Badvel
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF:-DEFENDANTS :
P.W.1 : Jarri Pothua Bala Subbaiah D.W.1 : Penubadi Jaya Chandra P.W.2 : (eschewed) D.W.2 : M.Dyvadeenam (M.R.O) P.W.3 : Shaik Subhan
EXHIBITS MARKED FOR PLAINTIFF : -
Ex.A1 : Plaint plan Ex.A2 : Occupancy right certificate, dated 20.02.2004 Ex.A3 : House Tax receipts (2) Ex.A4 : House Tax demand register extract issued by the Panchayath Secretary Rangasamudram, dated 10.06.2010 Ex.A5 : Electricity receipt number 08440, dated 01.03.2010. Ex.A6 : Ration Card
EXHIBITS MARKED FOR DEFENDANTS : -
Ex.B1 : Attested copy of possession certificate (Anubandam) vide A.17/99 Ex.B2 : Attested copy of A.P. State Housing Corporation Limited Beneficiary list year wise in Form – 30 for the allotment of material for the year 1999.
(FAIR)27
Ex.B3 :Letter issued by Thasildar Porumamilla to the SHO Porumamilla with reference number 200/2009, dated 08.06.2009 of 09.06.2009 Ex.B4 :Letter issued by A.E, A.P., Housing Corporation, Porumamilla to SHO Porumamilla Ex.B5 :Attested copy of possession certificate register volume-I from the year 1998 to 1999 Ex.B6 :Attested copy of 45th page in the said register and entries made therein for the year 1999 Ex.B7 :Attested copy of Entry in Sl.No.2 in the name of father of D.1 and husband of D.2.
Id/- K.M.L Spl.JFCM for P & E offences, Kadapa, FAC P.J.C.J, Badvel