- 1 -
IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: BHEEMUNIPATNAM
Present: K. Murali Mohan
Principal Junior Civil Judge,
Bheemunipatgnam.
Monday, this the 23rd day of April, 2018.
O.S. No. 91/2012
Between:
Josyula Varaha Narasimhamurthy S/o Sundara Rao, Hindu, 36 years, Soft Engineer, Zurich Switzerland, rep., by his Power of Attorney, his father Josyula Sundara Rao S/o late Varaha Narasimham, Hindu, 70 years, Retired Central Government Employee, Plot No. 24, Lane 3, Srinivasa Nagar, Behind Deepamahal Cinema Theatre, Srikakulam.
(In view of the death of Power of Attorney Josyula Sundara
Rao, the name of Power of Attorney is omitted from record as
per the Orders in I.A.616/2017 dt.27.11.2017) … Plaintif
And
1.Bayina Srinivasarao S/o Venkanna, Hindu, 28 years, Book Shop & Binding Works, Madhurawada, Chinagadili Mandal, Visakhapatnam District.
2.The Greater Visakhapatnam Municipal Corporation, Rep. By its Commissioner, Visakhapatnam.
3.Visakhapatnam Urban Development Authority Rep. By its Commissioner, Visakhapatnam.
4.Bayina Ramu S/o Venkanna, Hindu, years, Labour, Nagarapupalem,Tarluwada,AnandapuramMandal, Visakhapatnam District.
5.Pilla Venkata Vijay Kumar Bhaskar S/o Krishna Murthy Patrudu, 40 years, Hindu, Business, D. No. 49-48-16/1, NGGO Colony, Akkayyapalem, Visakhapatnam. … Defendants
This suit is coming on 28.03.2018 before me for hearing in the presence of Sri P. S. L. K. Bharadwaj, Advocate for the Plaintiff and of
Smt. Gara Susheela, Advocate for Defendant No. 2 and of Sri M. A. Rasool,
Advocate for Defendant No. 3 and Defendant No. 1, 4 and 5 having remained exparte and having stood over till this day for consideration, this court delivered the following:- - 2 -
J U D G M E N T
The above named plaintiff filed the present suit against the defendants for declaration that the suit schedule property described as
ABCD of Sketch attached to the plaint is a public way; for mandatory injunction directing Defendant No. 1, 4 and 5 to remove all unauthorized structures, buildings, sheds, plants and all other erections and obstructions from the schedule property which is depicted in as in sketch; for damages to a tune of Rs.50,000/- from defendant No. 2 and for costs of the suit.
2.The brief averments of the plaint are that
The plaintiff is the absolute owner of a total extent of 333 sq.yds., of vacant site covered by Survey No. 84/14 of Madhurawada,
Visakhapatnam District. The said site is a part of Layout popularly known as Hasthinapuri Enclave Layout, duly approved by defendant No.3 of its proceedings under LP. No. 6/2004. The said site originally is in two plots measuring 166.66 sq.yds., each and they are well demarcated and plotted in the said layout as Plot No. 36 and 37 of the said layout. It is axiomatic that the enormous development of Visakhapatnam on all counts attracted many more people from all corners. Population in these parts also gained incredible momentum. Software Industry also started fourishing in these areas. Resultantly, the limits of the City is widened. Originally M/s Primarth
Realtors Private Limited, rep. By its Managing Partner Sri S. Sitaramaraju formed a layout in land covered by Survey No. 84/14 of Madhurawada after having lawfully acquired the same from the original owner under
Registered General Power of Attorney cum Sale agreement dt.14.10.1997 for valuable consideration. The said layout was developed and all the requisite formalities were complied with and then applied for approval - 3 -
VUDA. Roads were formed and drainages were laid. Finally after certain unforeseen hiccups, the said Layout got authoritative approval from
Defendant No.3 under its proceedings in R.C.No.2151/03/JPO(DC)/BML dt.02.03.2004.
a)Originally Plot No. 36 of the said layout was sold away by the
Primarth Relators Private Limited who developed the layout as narrated above to Smt. Ragini Gupta W/o R. K. Gupta for a valuable consideration of
Rs.36,670/- under a Registered Sale deed dt.20.11.1999. Later Plot No. 37 was similarly sold away by same developer to one Sri Mallidi Ramareddy for a valuable consideration of Rs.75,000/-. The said purchasers had been in peaceful possession and enjoyment of their respective plots with absolute rights. The southern boundary of the two plots being contiguous bits manifestly is road. Subsequently the above purchasers of the said plots transferred their respective plots to Pothina Balakrishna Rao and
Vandrasi Applaswamy for valuable considerations on 06.09.2005 and 05.10.2005 respectively under two distinct Registered Sale agreements with GPA. The plaintiff with the active assistance of his father, purchased the said two plots under two Registered Sale deeds and at the time of purchase, the vendors of the plaintiff while affecting actual physical delivery of the said plots also handed over the original documents. Since the plaintiff is shifted to Zurich in 2008 by virtue of his employment, his father has been looking after the affairs of plots of his son. In the later part of 2008 the father of the plaintiff during his visit to the said property was indeed shocked to observe some saplings on the road which he apprehended to be a nuisance to his absolute right. Immediately the father of the plaintiff brought to the notice of Defendant No. 2 and 3 hereby by - 4 - way of representation. Then the Town Planning Officer took up the issue and removed all the obstructions on the road and since then the father of the plaintiff was more cautious and used to visit the property regularly. It is apt to state that on the road on the south of plots 36 & 37 is extended towards east for few meters and joins another road that leads to 40 feet road of adjacent layout. Defendant No. 1 has been running a small factory on the east of the end point of road (Southern road).
b)On 23.10.2010 while the parents of plaintiff visited the suit schedule property they noticed that the entire road was completely occluded by constructing walls across the said road on either side i.e., on its East and West thereby completely preventing the plaintiff and his men from using the same. Immediately the plaintiff’s father approached the police who advised him to approach defendant No,. 2 and 3. On that the father of the plaintiff approached the GVMC and presented a complaint to the Grievance Cell against the high handed acts of obstruction to the southern road, but the same was went in vain. About a couple of months back another astounding revelation was detected from the office of the
Defendant No. 2 itself that an exparte decree was passed against
Defendant No 2 by the Junior Civil Judge, Bheemunipatnam in a suit filed by defendant No. 1 claiming the road as his own with the aid of fictitious, colourable, void deed purported to have been executed in his favour.
Surprisingly the office of Defendant No. 2 and 3 kept quite without initiating any action against anybody nor make any sort of enquiry in this regard. The complete inaction and silence on the part of Defendant No. 2 and 3 are deliberate and torpid indolence made plaintiff’s father flabbergasted. The plaintiff received a notice from the Junior Civil Judge’s - 5 -
Court, Bheemunipatnam in O.S.65/2012 in which it is revealed that defendant No. 1 with an evil intention to give a colour of link document to obtain permission from the authorities concerned, brought into existence a colourable and sham registered sale deed dt. in favour of defendant No. 4 who is no other than his own brother in respect of part of the road which is abutting the plots of the plaintiff. The said sale deed itself shows that defendant No. 4 is a labourer. By suppressing all these facts, defendant No.
3 field said suit and obtained an exparte ad-interim injunction against the plaintiff in respect of part of suit schedule property. The defendant No. 2 gave permission to defendant No. 4 for construction of house on the said site which is in fact a road. The act of defendant No. 2 in granting permission is illegal, unlawful and capricious. Thus the defendant 1, 4 and 5 are liable to remove all the unlawful, illegal, high-handed, nonsensical and troublesome obstacles like plantations and shed from the Road.
Subsequently when the defendant No. 1, 4 and 5 under the guise of exparte injunction orders in O.S. 65/2012 constructing a building in a part of the schedule property, the plaintiff herein filed this suit against the defendants for declaration that the suit schedule property described as
ABCD of Sketch attached to the plaint is a public way; for mandatory injunction directing Defendant No. 1, 4 and 5 to remove all unauthorized structures, buildings, sheds, plants and all other erections and obstructions from the schedule property which is depicted in as in sketch; for damages to a tune of Rs.50,000/- from defendant No. 2
3.After receipt of suit summons, Defendant No. 1, 2 and 4 made their appearance through their respective counsels and contested the suit.
- 6 -
4.Defendant No. 1 filed written statement and the same was adopted by Defendant No. 4 by denying all the material allegations leveled in the plaint and contended that 4th defendant filed a suit in O.S. 65/2012 on the file of this Court against the father of plaintiff and obtained interim injunction in I.A.251/2012 after purchase of the property from 1st defendant under a registered sale deed for a valuable consideration and after getting permission, he got constructed a house in it as per the plan approved by the 3rd defendant herein. The 4th defendant is not a labourer and he is doing cultivation at his native place Nagarapalem, Anandapuram Mandal and also doing book shop business. It is further contended that the schedule property is not a public road and it is a property of 1st and 4th defendants. The Layout plan i.e., LP. No. 6/2004 is not filed by the plaintiff.
It is further contended that he purchased the property under a registered sale agreement coupled with GPA bearing registration No. 2757/2006 dt.14.07.2006 and obtained possession and since then he is in possession and enjoyment of the same. In turn the original owners purchased the same from Nagothu Sriramulu and another under a registered sale deed dt.29.06.1954 bearing registration No. 1311/1954. After his purchase, the 1st defendant used to pay the property tax to the 3rd defendant in his name. The property purchased by 1st defendant covered by Old S. No.
280/1B new Survey No. 134/1 under T.D.No. 2668 situated at
Madhurawada Village in an extent of 409.7 Sq.yds, in two items. In that document it is categorically mentioned layout of Seetharamaraju and on western side 33 feet road mentioned Eastern side also the road mentioned and there is no road on the southern side of the plaintiff’s plots or on the northern side of property of 1st defendant. The layout survey numbers or the survey numbers mentioned in the sale deeds of the plaintiff not related - 7 - to the property of 1st or 4th defendants. The cause of action mentioned in para IV of the plaint is not correct and that the suit is not maintainable either on law or on facts and the schedule is not correct and prayed to dismiss the suit with exemplary costs.
5.The Defendant No. 2 filed written statement denying all the material allegations leveled in the plaint and contended that 2nd defendant
Corporation is not the defendant in the suit filed by 1st defendant and 2nd defendant corporation is not having any knowledge and notice in that suit.
The 4th defendant has produced registered ownership documents, link documents from the vendee and their previous link documents. The same was also verified by the Town Surveyor and on the remarks of the Town
Surveyor and as per the G.O.Ms.No. 678 MA dt.27.09.2007 Rules, the permission was granted. The defendant corporation is acting as per the provisions of the HMC Act 1955 and as legally under the rules and regulations. The allegation that the 2nd defendant has granted permission illegally and against to rules is not correct and prayed to dismiss the suit with exemplary costs.
6.Initially the defendant No. 3 VUDA and defendant No. 5 set exparte.
7.Basing on the above pleadings, the following issues are settled for trial on 26.04.2016 by my learned predecessor in office.
ISSUES :
1. Whether the plaintiff is entitled for Declaration as prayed for?
- 8 -
2. Whether the plaintiff is entitled for
mandatory injunction as prayed for?
3. Whether the plaintiff is entitled for damages as prayed for?
4. Whether the schedule property belongs to defendant No. 1 and 4?
5. Whether the plaint schedule property is a public road? and
6. To what relief?
8.Initially the defendant No. 3 VUDA set exparte and on the application filed by Defendant No. 3 to set aside the exparte order against them, this Court allowed the same. The defendant No. 3 filed written statement denying all the material allegations leveled in the plaint and contended that the defendant No. 3 is no way concerned with the alleged encroachment, unauthorized constructions etc. It is further contended that it is the duty of the local bodies/authority in that area to watch and take necessary action on any alleged deviations and encroachments as well as unauthorized constructions said to be made in the approved layouts. As such the local body/authority in that area is the necessary and proper parties to the suit. Hence, the suit is bad under law for non-joining of the local body and the 3rd defendant is not necessary and proper party to the suit. The defendant No. 3 need not pay any damages to the plaintiff and prayed to dismiss the suit.
9.On careful perusal of the above issues, the Issue No. 1 and
Issue No. 5 are one and the same since in the present suit, the plaintiff sought for the declaration that the plaint schedule property is a public road. The dispute between the parties is that according to the plaintiff, the suit schedule property is a public road whereas it is the case of defendants - 9 - that suit schedule property is a private property belongs to defendant No.
1 and 4. As such, the issue No. 4 with regard to whether the suit schedule property belongs to Defendant No. 1 and 4 and the purport of the issue No.
1 and 5 whether the plaint schedule property is a public road seems to be one and the same and conclusion of one issue among them will certainly becomes the conclusion of the other issues. Therefore, in order to avoid repetition and discussion, the issue No. 1, 5 and 4 are required to be discussed together.
10.Issue No. 1, 5 and 4 :
1. Whether the plaintiff is entitled for Declaration as prayed for?
5. Whether the plaint schedule property is a public road?
4. Whether the schedule property belongs to defendant No. 1 and 4?
The case of the plaintiff is that defendant No. 1 encroached the public road and obtained the proceedings from defendant No. 2 GVMC and illegally constructed the structures on the public road by occupying the public road and defendant No. 1 also executed some documents and transferred the property in favour of defendant No. 4 and according to plaintiff, the suit schedule property is a public road and defendant No. 1 and 4 are no way concerned with the same. On the other hand it is the case of defendant No. 1 through his written statement that suit schedule property is exclusive property of defendant No. 1 and he is having registered documents and by producing the relevant documents, he obtained approved plan from Defendant No. 2 GVMC and he never encroached into any public road and plaintiff filed the present suit only to harass the defendant No. 1 and 4. It is the case of defendant No. 2 and 3 - 10 - that GVMC or VUDA are no way concerned with the dispute. According to
Defendant No. 2 by producing proper documents, the defendant No. 1 obtained necessary approval from GVMC for making the constructions and according the defendant No. 2 and 3 the schedule property is a private property and it was not handed over to them by the said layout by showing it as road.
11.In order to prove the above issues the GPA holder of the plaintiff Josyula Sundara Rao examined himself as PW.1 and got marked
Exs A.1 to A.18 documents.
Ex-A.1 is the Registered Sale deed dt.20.11.1999 executed by
Managing Director S. Seetharama Raju, GPA holder of Primarth Relators
Private Limited in favour of Ragini Gupta in respect of an extent of 166 sq.yds., Plot No. 37 situated in Survey No. 84/14 and 140 of VUDA approved layout, Madhurawada. Ex-A.2 is the Registered Sale deed dt.05.05.2005 executed by Managing Director S. Seetharama Raju, GPA holder of Primarth Relators Private Limited in favour of Mallidi Ramireddy in respect of an extent of 166 sq.yds., Plot No. 36 situated in Survey No.
84/14 and 140 of VUDA approved layout, Madhurawada. Ex-A.3 is the
Registered GPA cum agreement of sale dt.06.09.2005 executed by Mallidi
Ramireddy in favour of Potula Balakrishna in respect of an extent of 166 sq.yds., Plot No. 36 situated in Survey No. 84/14 and 140 of VUDA approved layout, Madhurawada. Ex-A.4 is the Registered GPA cum agreement of sale dt.05.10.2005 executed by Ragini Gupta in favour of
Pothina Bala Krishna Rao in respect of an extent of 166 sq.yds., Plot No. 37 situated in Survey No. 84/14 and 140 of VUDA approved layout,
Madhurawada. Ex-A.5 is the Registered Sale deed dt.09.11.2005 executed by Mallidi Ramireddy & Pothina Bala Krishna Rao in favour of plaintiff in - 11 - respect of an extent of 166 sq.yds., Plot No. 36 situated in Survey No.
84/14 and 140 of VUDA approved layout, Madhurawada. Ex-A.6 is the
Registered Sale deed dt.09.11.2005 executed by Pothina Bala Krishna Rao and Vandrasi Appala Swamy in respect of an extent of 166 sq.yds., Plot No.
37 situated in Survey No. 84/14 and 140 of VUDA approved layout,
Madhurawada. Ex-A.7 is the Paper Publication in Eenadu Daily local newspaper dt.18.10.2013, Ex-A.8 is the Office copy of application submitted to Grievance Wing, GVMC, Visakhapatnam on 25.10.2010. Ex-
A.9 is the office copy of re-joinder submitted to Grievance Wing, GVMC,
Visakhapatnam on 25.10.2010, Ex-A.10 is the office of registered notice got issued by plaintiff to the Commissioner, GVMC on 16.05.2011, Ex-A.11 is the Postal Acknowledgment, Ex-A.12 is the office copy of registered notice got issued by plaintiff to the defendants 1 to 4, Ex-A.13 is the postal receipt relating to District Collector, Visakhapatnam, Ex-A.14 & A.15 are the returned notices from defendant No. 1 and 4, Ex-A.16 is the bunch of photographs 10 in number along with CDs two in number, Ex-A.17 is the bunch of encumbrance certificates for the year 2005 and Ex-A.18 is attested copy of layout for S.No.84/14 and 140 relating to Primarth
Relators Private Limited.
12.It is pertinent to note that since Defendant No. 1, 3 and 4 not turned up during the trial, my learned predecessor-in-office set the defendant No. 1, 3 and 4 as exparte. As such the evidence of PW.1 was not cross-examined by the defendants. It is pertinent to note that though the original plaintiff Josyula Varaha Narasimha Murthy filed his chief-affidavit as
PW.1, since he did not turn up, his evidence was eschewed and the GPA holder of plaintiff Josyula Sundara Rao who filed his chief affidavit as PW.2 - 12 - was examined as PW.1 and exhibited Exs A.1 to A.18 documents through
PW.1 GPA Holder.
13.As stated above PW.1 was not cross-examined. When defendants approached the Court for setting aside the exparte orders against them and when they tried to recall the PW.1 Josyula Sundara Rao for the purpose of cross-examination in view of the fact that Josyula
Sundara Rao was died by that time, the defendants lost the opportunity to cross-examine the PW.1. Except the evidence affidavit of PW.1 and Exs A.1 to A.18 documents, there is no other evidence adduced by the plaintiff. On the other hand, for defendant No. 3 VUDA, Dw.1 is examined and for
Defendant No. 2, Dw.2 is examined and no evidence adduced for defendant No. 1, 4 and 5.
14.I have carefully perused the oral and documentary evidence adduced by both parties. The evidence of PW.1 Josyula Sundara Rao who is
GPA holder of original plaintiff reveals that his son Josyula Varaha
Narasimha Murthy is the absolute owner of total extent of 333 sq.yds of vacant site covered by Survey No. 84/14 of Madhurawada, Visakhapatnam
District and the said site is part of Layout popularly known as Hasthinapuri
Enclave Layout duly approved by defendant No. 3 of its proceedings under
LP No. 6/2004. The said site originally is in two plots measuring 166.66
sq.yds., each and they are well demarcated and plotted in the said layout as Plot No. 36 and 37 of the said layout. Originally Plot No. 36 of the said layout was sold away by the Primarth Relators Private Limited who developed the layout as narrated above to Smt. Ragini Gupta W/o R. K.
Gupta for a valuable consideration of Rs.36,670/- under a Registered Sale deed dt.20.11.1999. Later Plot No. 37 was similarly sold away by same - 13 - developer to one Sri Mallidi Ramareddy for a valuable consideration of
Rs.75,000/-. The said purchasers had been in peaceful possession and enjoyment of their respective plots with absolute rights. Subsequently the above purchasers of the said plots transferred their respective plots to
Pothina Balakrishna Rao and Vandrasi Applaswamy for valuable considerations on 06.09.2005 and 05.10.2005 respectively under two distinct Registered Sale agreements with GPA. The plaintiff with the active assistance of his father (PW.1) purchased the said two plots under two
Registered Sale deeds and at the time of purchase, the vendors of the plaintiff while affecting actual physical delivery of the said plots also handed over the original documents. Since the plaintiff is shifted to Zurich in 2008 by virtue of his employment, PW.1 has been looking after the affairs of plots of his son. In the later part of 2008 PW.1 during his visit to the said property was indeed shocked to observe some saplings on the road which he apprehended to be a nuisance to his absolute right.
Immediately PW.1 brought to the notice of Defendant No. 2 and 3 by way of representation. Then the Town Planning Officer took up the issue and removed all the obstructions on the road. PW.1 further deposed that on the road on the south of plots 36 & 37 is extended towards east for few meters and joins another road that leads to 40 feet road of adjacent layout.
Defendant No. 1 has been running a small factory on the east of the end point of road (Southern road). On 23.10.2010 while the parents of plaintiff visited the suit schedule property they noticed that the entire road was completely occluded by constructing walls across the said road on either side i.e., on its East and West thereby completely preventing the plaintiff and his men from using the same. Immediately PW.1 approached the police who advised him to approach defendant No,. 2 and 3. On that PW.1 approached the GVMC and presented a complaint to the Grievance Cell - 14 - against the high handed acts of obstruction to the southern road, but the same went in vain. About a couple of months back another astounding revelation was detected from the office of the Defendant No. 2 itself that an exparte decree was passed against Defendant No 2 by the Junior Civil
Judge, Bheemunipatnam in a suit filed by defendant No. 1 claiming the
road as his own with the aid of fictitious, colourable, void deed purported to have been executed in his favour. Surprisingly the office of Defendant
No. 2 and 3 kept quite without initiating any action against anybody nor make any sort of enquiry in this regard. The complete inaction and silence on the part of Defendant No. 2 and 3 are deliberate and torpid indolence made PW.1 flabbergasted. The plaintiff received a notice from the Junior
Civil Judge’s Court, Bheemunipatnam in O.S.65/2012 in which it is revealed
that defendant No. 1 with an evil intention to give a colour of link document to obtain permission from the authorities concerned, brought into existence a colourable and sham registered sale deed dt. in favour of defendant No. 4 who is no other than his own brother in respect of part of the road which is abutting the plots of the plaintiff. The said sale deed itself shows that defendant No. 4 is a labourer. By suppressing all these facts, defendant No. 3 field said suit and obtained an exparte ad-interim injunction against the plaintiff in respect of part of suit schedule property.
The defendant No. 2 gave permission to defendant No. 4 for construction of house on the said site which is in fact a road. The act of defendant No. 2 in granting permission is illegal, unlawful and capricious. Thus the defendant 1, 4 and 5 are liable to remove all the unlawful, illegal, high-handed, nonsensical and troublesome obstacles like plantations and shed from the
Road. The defendants 1, 2 and 3 subjected PW.1 to severe mental harassment apart from causing physical strain by making him road around their offices, as such the defendant No. 2 and 3 are liable to pay damages - 15 - to a tune of Rs.50,000/- to PW.1. Subsequent to the suit, defendant 1, 4 and 5 continued their high handed acts and got raised a building on the said road by completely blocking the passage.
15.For the reasons stated above, PW.1 was not cross-examined by the learned counsel for the defendants. On the other hand, for defendant
No. 3, Bonda Nagabushana Rao, A.D.M., Vuda, Visakhapatnam is examined as Dw.1 who deposed in his evidence affidavit that their VUDA office is only concerned with approving of layouts only but subsequently any unauthorized constructions etc., are to be dealt by the local body/authority in that area, to watch and take necessary action on any alleged deviations, encroachments as well as unauthorized constructions etc. As per
G.O.Ms.No. 502 M.A., dt.21.10.1991, order in Para-1 these powers are delegated by VUDA, to the Visakhapatnam Municipal Corporation. Hence it is the duty and responsibility of the GVMC i.e., Defendant No. 2 in the above suit proceedings or any local body/authority in that area. Hence the
Defendant No. 3 VUDA office is not liable to pay any damages to the plaintiff much less as claimed by plaintiff. As such the defendant No. 3 is not a necessary and proper parties in the suit proceedings, hence the suit is liable to be dismissed against the defendant No. 3. DW.1 exhibited Exs
B.1 and B.2 documents. Ex-B.1 is authorization letter dt.20.01.2018 issued by Chief Urban Planner, VUDA in favour of Dw.1 and Ex-B.2 is the attested copy of G.O.Ms.No.502 MA dt.23.10.1991 delegating the powers from
VUDA to GVMC, Visakhapatnam. Dw.1 was cross-examined by the learned counsel for plaintiff. In his cross-examination DW.1 admitted in his cross- examination that Ex-A.18 approved layout plan was issued by VUDA and
VUDA is having an obligation to issue certified copies of Approved plan or other proceedings in respect of a layout whenever a party applied for it.
- 16 -
Dw.1 denied the suggestion that through Ex-B.2 the power of maintenance of Layouts were not delegated to GVMC, Visakhapatnam. Dw1 further denied the suggestion that inspite of the old age of the plaintiff, they made him to move around their office several times without attending his lawful grievance and caused lot of mental agony to him and that they are liable for paying damages for the same.
16.For defendant No. 2 GVMC, U. Ramakrishna, Town Planning
Supervisor, Zone-1, GVMC, Madhurawada, Visakhapatnam is examined as
DW.2 and exhibited Ex-B.3 Authorization dt.27.03.2018. Dw.2 deposed in his evidence affidavit that the defendant No. 2 and 3 kept quite without initiating any action on the injunction orders brought by the 1st defendant in the Junior Civil Judge’s Court, Bheemili against the 4th defendant about occupation construction in Road portion which is an approach road to this plaintiff is not correct. The defendant/corporation is not the defendant in that above case and also this defendant/corporation is not having any knowledge notice in that issue. Hence the contention of plaintiff is denied and not responsible for further contention since this defendant corporation is not the party to the alleged suit. The layout owners who have formed the road and sold the house sites has to form the layout roads and have to handover the roads to the concerned local bodies as per the layout rules and provisions of the HMC Act 1955. But the layout owner has not do so, this defendant corporation has nothing to do with the said road as it is not handed over to this defendant corporation. This defendant corporation nothing to do with the private dispute on the suit schedule property between the plaintiff and the defendant 1, 4 and 5. The 4th defendant has produced registered ownership documents, its link documents from the vendor and their previous link documents. The same was also verified by - 17 - the Twon Survey and on the remarks of the Town Surveyor and as per the
G.O.Ms.No. 678 MA, 27.09.2007 rules the permission was granted. Dw.2 was cross-examined by the learned counsel for the plaintiff. In cross- examination, Dw.2 admitted that it is the duty of GVMC to take any action in respect of any obstruction over the roads formed in the VUDA approved layouts. Dw.2 volunteers that their responsibility will commence when the roads were handed over to them. Ex-A.19 certified copy of the endorsement dt.21.08.2007 GVMC, Visakhapatnam pertaining to land in
Survey No. 134/1 issued in favour defendant No. 1 is marked in the evidence of Dw.2. In the cross-examination of Dw.2, he admitted that in
Ex-A.19 in Northern side boundary Seetha Ramaraju layout and Road was shown. He do not know that defendant No. 4 filed O.S.165/2010 against
GVMC before this Court. Dw.2 do not know that vendor of the defendant
No. 1 i.e., defendant No. 4 when planted some plant on the suit schedule property their GVMC officials removed the same for which defendant No. 4 filed O.S.65/2010 against them and obtained decree. DW.2 denied the suggestion that thought the defendant No. 1 is making construction of the house by encroaching the road the plaintiff made several representations to GVMC but they by colluding with defendant No. 1 and 4 with illegal gratifications they did not take any action and made the plaintiff to suffer and that the approved layout plan is adverse to their case, he did not file the same into court and he suppressed the same.
17.The learned counsel for the plaintiff argued that in view of the unchallenged evidence of PW.1, plaintiff proved that the suit schedule property is a public road and it is elicited that defendant No. 1 and 4 made constructions on the public road by obstructing the right of the plaintiff to use the road and plaintiff sought for declaration that the suit schedule - 18 - property is a public road and the plaintiff further requested the Court to give a finding that defendant No. 1 and 4 are no way concerned with the suit schedule property. It is the burden on the part of plaintiff to prove his case on his own strength and he cannot relied upon the weakness in the case of defendants.
17 A.In this regard I deem it is just and proper to refer the Judgment of Hon’ble Apex Court reported in AIR 2014 SC (Civil) 613 in between
Union of India and Others Vs. Vasavi Co-operative Housing Society
Limited and others wherein it was held that;
“Onus to prove his title is on plaintiff,
he cannot succeed on weakness of
defendant’s case”.
“The plaintiff in a suit for declaration of
title and possession could succeed only
to the strength of its own title and that
could be done only by adducing
sufficient evidence to discharge the
onus on it, irrespective of the question
whether the defendants have proved
their case or not. Even if the title set up
by the defendants is found against, in
the absence of establishment of
plaintiff’s own title, plaintiff must be
non-suited”.
18.Hence, from the above judgment, it is clear that the plaintiff has to prove his own case on strength of his own but he cannot succeed on weakness of defendants’ case.
19.In order to prove the fact that defendant No. 1 and 4 encroached the public road the plaintiff relied on Exs A.1 to A.19. Ex-A.1 - 19 -
Registered Sale deed dt.20.11.1999 executed by Managing Director S.
Seetharama Raju, GPA holder of Primarth Relators Private Limited in favour of Ragini Gupta in respect of an extent of 166 sq.yds., Plot No. 37 situated in Survey No. 84/14 and 140 of VUDA approved layout, Madhurawada, Ex-
A.2 Registered Sale deed dt.05.05.2005 executed by Managing Director S.
Seetharama Raju, GPA holder of Primarth Relators Private Limited in favour of Mallidi Ramireddy in respect of an extent of 166 sq.yds., Plot No. 36 situated in Survey No. 84/14 and 140 of VUDA approved layout,
Madhurawada, Ex-A.3 Registered GPA cum agreement of sale dt.06.09.2005 executed by Mallidi Ramireddy in favour of Potula
Balakrishna in respect of an extent of 166 sq.yds., Plot No. 36 situated in
Survey No. 84/14 and 140 of VUDA approved layout, Madhurawada and Ex-
A.4 Registered GPA cum agreement of sale dt.05.10.2005 executed by
Ragini Gupta in favour of Pothina Bala Krishna Rao in respect of an extent of 166 sq.yds., Plot No. 37 situated in Survey No. 84/14 and 140 of VUDA approved layout, Madhurawada are the link documents of plaintiff which shows the possession of vendors vendors of plaintiff. Ex-A.5 Registered
Sale deed dt.09.11.2005 executed by Mallidi Ramireddy & Pothina Bala
Krishna Rao in favour of plaintiff in respect of an extent of 166 sq.yds., Plot
No. 36 situated in Survey No. 84/14 and 140 of VUDA approved layout,
Madhurawada and Ex-A.6 is the Registered Sale deed dt.09.11.2005 executed by Pothina Bala Krishna Rao and Vandrasi Appala Swamy in respect of an extent of 166 sq.yds., Plot No. 37 situated in Survey No.
84/14 and 140 of VUDA approved layout, Madhurawada shows the possession of plaintiff in Plot No. 36 and 37. Ex-A.7 is the Paper Publication in Eenadu Daily local newspaper dt.18.10.2013 showing the publication given by plaintiff with regard to the plot No. 36 and 37 and the said paper publication is no way related to the suit schedule property road. Ex-A.8 - 20 -
Office copy of application submitted to Grievance Wing, GVMC,
Visakhapatnam on 25.10.2010 and Ex-A.9 office copy of re-joinder submitted to Grievance Wing, GVMC, Visakhapatnam on 25.10.2010 shows that PW.1 approached the defendant No. 2 and presented a complaint to the Grievance Cell against the high handed acts of obstruction to the southern road. Ex-A.10 office of registered notice got issued by plaintiff to the Commissioner, GVMC on 16.05.2011, Ex-A.11 Postal Acknowledgment
Ex-A.12 is the office copy of registered notice got issued by plaintiff to the defendants 1 to 4, Ex-A.13 postal receipt relating to District Collector,
Visakhapatnam, Ex-A.14 & A.15 returned notices from defendant No. 1 and 4 show that the plaintiff got issued a registered notice to the defendant No.
2 and the receipt of the same. Ex-A.16 bunch of photographs 10 in number along with CDs two in number shows some constructions and name of defendant No.1. Ex-A.17 bunch of encumbrance certificates for the year 2005 shows the possession of plaintiff in plot No. 36 and 37. Hence the only document in which the plaintiff was relied on is Ex-A.18 attested copy of layout for S.No.84/14 and 140 relating to Primarth Relators Private
Limited in LP 06/2004. The evidence of PW.1 reveals that in the said layout in Hasthinapuri Enclave, the plaintiff purchased Plot No. 36 and 37.
There is a 40 feet road on the southern side of Plot No. 36 and 37 and its extent towards east for few meters and joins another road that leads to 40 feet road of adjacent layout. It is the case of plaintiff that the defendant 1 and 4 encroached the southern side road of Plot No. 36 and 37 and made constructions. As per the schedule annexed to the plaint, the schedule is shown as “ABCD Road bounded by east : Continuation of road in the layout, South : Aiswarya Layout, West : Continuation of road and North :
Plaintiff’s site in Plot No. 36 and 37.
- 21 -
20.According to plaintiff M/s Primarth Realtors Private Limited, rep. By its Managing Partner Sri S. Sitaramaraju formed a layout in land covered by Survey No. 84/14 of Madhurawada and obtained GPA and developed the same and applied for the approval by forming the roads and drainages and defendant No. 3 VUDA approved the layout and issued proceedings in R.C.No.2151/03/JPO(DC)/BML dt.02.03.2004. The plaintiff did not file the said proceedings in R.C.No.2151/03/JPO(DC)/BML dt.02.03.2004 before this Court and no such record from VUDA was summoned by the plaintiff.
21.It is pertinent to note that Ex-A.18 Layout Plan LP. No. 6/2004 is depicting Plot No. 36 and 37 in the layout and it is pertaining to LP No.
6/2004 only. In Ex-A.18 it was clearly mentioned in the note that the layout owners (LP.No. 6/2004) are required to form 40 feet wide road X to X1 in the existing rastha duly obtaining permission from Revenue Authorities. It is pertinent to note that though a road was shown on the southern side to plot No. 36 and 37, it appears that it is not covered in LP. No. 06/2004 of the plaintiff. On careful perusal of Ex-A.18 Layout Plan, it is clear that 40 feet road is not part of LP.No. 06/2004 and it is part of L.P.No. 13/1996. If the LP 13/1996 is produced before this Court, the real facts will come into light. As such from Ex-A.18 LP. No. 06/2004, this Court cannot conclude that the road was formed in L.P.No. 06/2004 on the southern side of Plot
No. 36 and 37 of the plaintiff. Even as per the note in Ex-A.18 it is clear that the lay out owners are required to form the road in the said proposed layout by obtaining necessary permission from the Revenue authorities.
Therefore, mere filing of Ex-A.18 will not serve any purpose to show that there is road on southern side of Plot No. 36 and 37 as per L.P.No. 06/2004.
- 22 -
22.It is pertinent to note that except Ex-A.18 Layout Plan, no evidence is produced by the plaintiff to show that there is a road on southern side of Plot No. 36 and 37 of plaintiff. There is no evidence to show that the road was formed as proposed in the layout. For the reasons best known to the plaintiff, he did not choose to examine the owners of the layout or any of the neighbouring plot owners or any other third party to establish that there is a road on southern side of Plot No. 36 and 37 of plaintiff. Keeping the said fact aside, plaintiff is further required to prove that the defendant No. 1 and 4 made constructions by occupying the road.
For this aspect, the plaintiff relied on Ex-A.15 photographs. Except the
Photographs, there is no material to show that the defendant No. 1 and 4 made constructions on the southern side of Plot Nos 36 and 37 of plaintiff.
For the reasons best known to the plaintiff, he did not choose to take steps for appointment of Advocate Commissioner to note down the physical features and to locate the suit schedule property. Without appointing the
Advocate Commissioner, it is not possible to identify the alleged road. By mere filing Ex-A.16 photographs, this Court cannot conclude that the said constructions were made by the defendant No. 1 and 4 by occupying the public road on the southern side of Plot No. 36 and 37 of plaintiff. No doubt some constructions were found in Ex-A.16 photographs by showing the name of defendant No. 1. Mere producing the photographs will not serve any purpose unless it is shown that the photographs are pertaining to the suit schedule property road. Except the self serving statement of PW.1, there is no other corroborative oral or documentary evidence adduced by the plaintiff to show that Ex-A.16 photographs belongs to suit schedule property. Though there are some constructions as found in Ex-A.16 photographs, this Court has no reason to believe that the said constructions were made across the road on the southern side of plot No.
- 23 - 36 and 37 of the plaintiff. No survey report is produced before this Court to identify the suit schedule property. Without producing sufficient evidence, the plaintiff cannot take advantage on the ground that PW.1 was not cross- examined by the defendants.
23.It is pertinent to note that initially though defendant No. 1 and 4 filed their written statements, they did not take part in the trial. Though
Defendant No. 2 filed their written statement initially, they did not turn up to cross-examine the PW.1. At later stage defendant No. 3 approached this
Court with proper petition to set aside the exparte order against them. At that time when defendant No. 3 approached the Court and sought recall of
PW.1 and requested to give an opportunity to them to cross-examine the
PW.1 by which time PW.1 was no more. As such, the defendants lost valuable opportunity to cross-examine the PW.1. From non-cross- examiantion of PW.1 by defendants the plaintiff cannot gain any advantage. Even if defendant No. 1 and 4 remained exparte and did not choose to cross-examine the PW.1, this Court cannot rely on the evidence of PW.1 as a matter of right of the plaintiff. It is the duty on the part of the plaintiff to satisfy the Court by adducing positive and reliable evidence and he has to prove his case on his own strength. Keeping the fact that defendants remained exparte aside and keeping the fact that PW.1 was not cross-examined by the defendants aside, the perusal of evidence of PW.1 and Exs A.1 to A.18 documents are not sufficient to establish that defendant No. 1 and 4 made constructions on the public road.
24.As seen from the averments of plaint and from the evidence of
PW.1 and even from the evidence of Dw.2, it is clear that defendant No. 1 by producing the documents obtained permission from GVMC and he made - 24 - constructions in the suit schedule property. According to plaintiff the defendant No. 1 and 4 managed the Defendant No. 2 GVMC and obtained approved plan illegally and it is a collusive one. As such the illegal construction which was made by defendant No. 1 and 4 is liable to be demolished and defendant No. 2 and 3 who allowed the defendant No.
1and 4 to do the illegal things are liable to pay damages. Except the vague evidence of PW.1, plaintiff failed to produce any material before this Court to show that defendant No. 2 gave permission to defendant No. 1 and 4 illegally to raise the constructions on the public road. I deem it proper to go through the evidence of Dw.2 in this regard. In his evidence Dw.2 categorically deposed that LP.No. 06/2004 in which Plot No. 36 and 37 are located are approved by 3rd defendant authority (VUDA). Dw.2 further deposed that the GVMC has no knowledge about the suit filed by 1st defendant in Junior Civil Judge’s Court, Bheemunipatnam against the 4th defendant. According to Dw.2 the lay out owners who have formed the road and sold the house sites has to form the layout roads and have to handover the roads to the concerned local bodies as per the layout rules and provisions of the HMC Act. But the layout owners has not do so. As such this defendant is nothing to do with the said road as the said road was not handed over to the defendant No. 2 Corporation. According to
Dw.2, the defendant No. 4 produced registered ownership documents, link documents from the vendor and their previous link documents and the same was verified by the Town Survey and on the remarks of the Town
Surveyor and as per G.O.Ms.No. 678 MA, 27.09.2007 rules the permission was granted. As such the allegation that 2nd defendant GVMC has granted permission illegally against the rules is not correct. When the plaintiff contended that the GVMC gave the approval illegally in favour of defendant No. 4, the heavy burden lies on the plaintiff to prove the same.
- 25 -
The plaintiff cannot throw the said burden on the defendants. When Dw.2 categorically deposed before this Court that the plan was approved in favour of defendant No. 4 as per the report of the Town Surveyor by examining the documents, I found no reason to disbelieve the version of plaintiff that approval is illegal. In the cross-examination Dw.2 categorically admitted that Ex-A.19 certified copy of endorsement of Town Surveyor,
GVMC dt.21.07.2007 is pertaining to the land in Survey No. 134/1 and in
Ex-A.19, the northern side boundary was shown as Seetharama Raju layout and road. Though Ex-A.19 was admitted by Dw.2, it is not sufficient to connect that the road referred in Ex-A.19 and the alleged road on southern side of Plot No. 36 and 37 are one and the same.
24 A.It is pertinent to note that according to plaintiff defendant No.
4 obtained permanent injunction against GVMC in O.S. 165/2010 on the file of this Court. In the cross-examination DW.2 deposed that he do not know that defendant No. 4 filed O.S.165/2010 against GVMC before this Court and that GVMC contested O.S.165/2010 and allowed the defendant No. 4 to obtain the decree against GVMC. Dw.2 do not know that vendor of the defendant No. 1 i.e., defendant No. 4 when planted some plants in the suit schedule property, GVMC officials removed the same, for which defendant
No. 4 filed O.S.165/2010 against GVMC and obtained decree. All these facts were suggested by plaintiff to Dw.2, but Dw.2 do not know those facts. From the averments of plaint and evidence of PW.1 and from the cross-examination of Dw.2 it is clear that defendant No. 4 herein filed
O.S.165/2010 in respect of the same schedule property and obtained
decree against the GVMC and others. It is the case of the plaintiff that defendant No. 2 i.e., GVMC allowed the defendant No. 4 to get the decree against them in O.S. 165/2010 i.e., defendant No. 2 GVMC from removing - 26 - the plants planted by defendant No. 4 in the suit schedule property. For the reasons best known to plaintiff though he referred about the filing of suit and passing of the decree by this Court in favour of Defendant No. 4 in
O.S.165/2010, the plaintiff did not choose to produce the certified copies of
the said plaint, judgment and decree before this Court for the inspection of this Court. Though the said record is pertaining to this Court, the same is not produced or summoned by the plaintiff. It is admitted by the plaintiff that defendant No. 4 obtained decree of perpetual injunction against the
GVMC in respect of suit schedule property in O.S. 165/2010. When the decree in O.S. 165/2010 is in existence in favour of Defendant No. 4 as admitted by plaintiff, he cannot vaguely contend that it was obtained illegally or collusively. The plaintiff must produce some material before this
Court to convince this Court that said decree and judgment in
O.S.165/2010 was obtained by defendant No. 4 in collusion with defendant
No. 2 herein or otherwise. Without producing the said record pertaining to
O.S.165/2010 and without producing the decree and judgment of this
Court, this Court cannot conclude that the decree and judgment in O.S.
165/2010 was obtained by defendant No. 4 illegally against the GVMC in respect of suit schedule property. The plaintiff has to establish that when the defendant No. 4 is having decree against Defendant No. 2, how the plaintiff can seek for declaration and how plaintiff will expect that defendant No. 2 will demolish the structures of defendant No. 4 while decree in O.S.165/2010 is in force.
25.Coming to the evidence of Dw.1 VUDA i.e., defendant No. 3, in his evidence Dw.1 deposed that their VUDA office is concerned with approving of layouts only, but subsequently unauthorized constructions are required to be dealt by GVMC in that area to watch and take necessary - 27 - action on any deviations, encroachments as well as unauthorized constructions etc. All such deviations and demolitions are within the purview of GVMC as delegated by VUDA as per G.O.Ms.No. 502 M.A., dt.21.10.1991, order in Para-1 (Ex-B.2). On perusal of Ex-B.2 copy of
G.O.Ms.No. 502 M.A., dt.21.10.1991 all the powers of approval of sub division of plots, building plants, multi storied building plans and also demolition of buildings shall be delegated by the VUDA to Visakhapatnam
Municipal Corporation. As suh any deviation and demolition is within the purview of Defendant No. 2 but not within the purview of defendant No. 3 in view of Ex-B.2 G.O.Ms. No. 502 M.A., dt.21.10.1991. In his cross- examination DW.1 admitted that Ex-A.18 approved lay out plan was issued by VUDA. Accord/ing to Dw.2 VUDA gave Ex-A.18 approved lay out plan and the layout owners owners are required to form the roads and the maintenance of the roads and any deviation and demolition etc., are within the purview of defendant No.2 GVMC as per Ex-B.2 G.O.Ms.No. 502 M.A., dt.21.10.1991. No doubt defendant No. 3 issued Ex-A.18 layout plan. From the evidence of Dw.2 it is clear that necessary permission was obtained by defendant No. 4 for making constructions by producing the documents and by exercising their powers, defendant No. 2 GVMC granted necessary sanction in favour of defendant No. 4. The plaintiff contended that such sanction is illegal and collusive. When after examining the documents defendant No. 2 gave necessary sanction in favour of defendant No. 4, the plaintiff cannot object the same without any basis. Plaintiff failed to produce any reliable evidence to show that such sanction is illegal and collusive for making constructions in the suit schedule property which is marked as public road in the layout. Undoubtedly the plaintiff made several representations to defendant No. 2 and 3. It is the version of defendant No. 2 and 3 that the same is within the purview of defendant - 28 -
No. 2 and when the said constructions are not illegal and when they were made with necessary sanction that too in a private property, the defendant
No. 2 cannot take steps for demolition of the same. I found some force in the contention of learned counsel for the defendant No. 2. The evidence of
Dws 1 and 2 and from the entire evidence on record clearly shows nothing found in their evidence to doubt their testimony and that plaintiff failed to establish that said constructions were made by defendant No. 4 in the public road and they are illegal and collusive.
26.Without examining the layout owners or neighbouring plot owners and without producing the survey report or any other corroborative oral or documentary evidence, it is not possible to conclude that the constructions were made by defendant No. 4 are illegal and it was made in the public road. The evidence produced by the plaintiff is not sufficient to give any declaration to that effect. Hence, Issue No. 1, 4 and 5 are decided agianst the plaintiff.
27.Issue No. 2 :
2. Whether the plaintiff is entitled for
mandatory injunction as prayed for?
In view of the finding in Issue No. 1, 4 and 5 and from the evidence of DW.2 it is clear that defendant No. 4 obtained necessary permission from defendant No. 2 GVMC and after verifying the documents, the Town Surveyor gave necessary sanction and the same was admitted by Dw.2 in his evidence. The plaintiff failed to produce any material in contrary to the same. Even according to the plaintiff, the defendant No. 4 obtained the decree and judgment against the GVMC in respect of suit schedule property in O.S. 165/2010 on the file of this Court. When the - 29 - defendant No. 4 is having decree and judgment of permanent injunction in his favour against the GVMC in respect of suit schedule property, the
GVMC cannot be directed to demolish the said constructions lying in the suit schedule property by way of this suit. Except the evidence of PW.1 there is no other corroborative evidence to prove that said construction was made by defendant No. 4 illegally in the public road. According to
Dw.2 constructions by defendant No. 4 was made in private property.
Considering the admission made by the plaintiff that defendant No. 4 obtained decree in O.S.165/2010 on the file of this Court and in absence of any other reliable evidence, this Court conclude that plaintiff failed to establish that the construction was made by defendant No. 4 illegally on the public road.
28.The learned counsel for the plaintiff relied on the judgment of
Hon’ble Supreme Court in Rattan Dev Vs. Pasam Devi dt.13.09.2002 and
the Judgment of Hon’ble Apex Court in Man Kaur (dead) by Lrs Vs. Hartar
Singh Sangha dt.05.10.2010 and the Judgment of Hon’ble Karnataka High
Court in Kummagal Gowramma Vs. Dodda Bhimanna and purport of these judgments are that ‘power of attorney holder can give evidence with regard to the facts which are within his knowledge and non examination of original plaintiff is not fatal to the case of plaintiff’. This Court absolutely agreed with the said contention of the learned counsel for the plaintiff. No doubt here the PW.1 who is looking after the affairs of entire property of original plaintiff being his father. PW.1 is having personal knowledge about the facts and he is competent to give evidence on behalf of original plaintiff.
- 30 - 28 A.However, the plaintiff is at liberty to decide whether to examine himself or to examine his GPA holder on his behalf. As such the
PW.1 is competent to decide and he can given evidence on behalf of original plaintiff. It is pertinent to note that during the pendency of suit
GPA holder of the plaintiff is examined as PW.1 and after the evidence the
GPA holder died. PW.1 was not cross-examined. At that stage the original plaintiff sought amendment by deleting the name of GPA and accordingly the name of GPA holder was removed in the short and long cause title and original plaintiff himself prosecuted the same. Therefore, when the plaintiff himself contested the suit, for the reasons best known to him, he did not examine himself as witness. The witness examined on his behalf is PW.1 who examined in the capacity of GPA holder. After removing the name of
GPA holder in the short and long cause title after his death, the suit was prosecuted by original plaintiff. When the suit was prosecuted by original plaintiff, plaintiff ought to have examined himself. When the GPA holder is removed from the suit by way of amendment on his death, the evidence of
PW.1 cannot be considered as the evidence of original plaintiff. The evidence of PW.1 is as good as any other party and it cannot be considered that PW.1 gave evidence in the capacity of GPA holder. It is pertinent to note that when plaintiff failed to produce sufficient evidence in proof of his case, the said aspect will not have much significance and no further discussion is required.
29.The plaintiff also relied on the Judgment of Hon’ble Apex Court in Hari Ram Vs. Jyoti Prasad and Another in which it was held that “In
case of a continuing breach of contract or in case of a continuing
tort, a fresh period of limitation begins as per Sec. 22 of the
Limitation Act, 1963“.
- 31 -
The above judgment is very much applicable to the present case. In the present case, the case of the plaintiff cannot be dismissed on the ground of limitation. As per Sec. 22 of Limitation Act, 1963 when it is continuing breach of contract or in case of continuing tort, a fresh cause of action arose. Therefore the present suit is also within the period of limitation under Sec. 22 of Indian Limitation Act and also in view of the above judgment of Hon’ble Apex Court.
30.Apart from the above, it is pertinent to note that suit schedule property is not described properly. Though it is contended by the plaintiff that defendant No. 4 made constructions across the road, he failed to give necessary particulars, details, measurements and description of the alleged constructions made by defendant No.4 in the suit schedule property. The schedule shown by the plaintiff is not clear. The schedule described by the plaintiff is not sufficient to identify the said unauthorized constructions to execute the mandatory decree which may be passed in favour of plaintiff. The length, height or any measurements of the said unauthorized constructions were not described in detail in the schedule.
Therefore, It is not possible to identify the suit schedule property with the limited particulars given in the schedule and the same can’t be excluded practically..
For all the above reasons, the plaintiff failed to prove his case and plaintiff is not entitled for mandatory injunction for demolition of the constructions as sought for. Accordingly the issue No. 2 is answered against the plaintiff.
- 32 -
31.Issue No. 3 :
It is the version of Dws 1 and 2 that they are acted in accordance with law. Defendant No. 3 VUDA approved the layout plan which is marked as Ex-A.18. According to Dw.2, defendant No. 2 GVMC after verifying the documents gave necessary sanction and approval for defendant No. 4 to made constructions in the suit schedule property road.
As per Ex-B.2 G.O.Ms.No. 502 M.A., dt.21.10.1991, the maintenance of the roads and and demolition of buildings is not within the purview of VUDA (Defendant No. 3) and it was delegated to GVMC i.e., Defendant No. 2 in view of Ex-B.2 G.O.Ms.No. 502 M.A., dt.21.10.1991. It Is the case of defendant No. 2 that after approval of the layout, the owners of the layout did not handover the said roads to GVMC for maintenance. When the roads were not handed over to GVMC after forming the same by layout owners,
GVMC cannot take steps for maintaining the same. As per the case of Dw.2 the constructions were made in the private property but not on the public road. The alleged road is not within the purview of GVMC since it was not handed over to them as deposed by Dw.2. It is the allegation of plaintiff that inspite of several representations, defendant No. 2 and 3 by colluding with defendant No. 4 did not take steps to demolish the construction, as such defendant No. 2 and 3 are liable to pay damages of Rs.50,000/-.
32.In view of the finding in Issue No. 1, 4 and 5 I found no reason to believe that defendant No. 2 and 3 colluded with defendant No. 4 and allowed the defendant No. 4 to made illegal constructions. Even according to plaintiff, defendant No. 4 obtained the decree in O.S.165/2010 against the GVMC. In Such circumstances we cannot expect the GVMC to go beyond the decree or to violate the orders in O.S.165/2010. Plaintiff did not take steps to produce the record pertaining to O.S.165/2010 and even the - 33 - decree and judgment in the present suit. For the reasons best known to plaintiff, he failed to prove defendant No. 2 and 3 in collusion with defendant No. 4, allowed the defendant No. 4 to make illegal constructions on the public road. The plaintiff failed to place any material before this
Court to assess the damages. There is no standard and there is no reliable evidence adduced by the plaintiff to ascertain the damages claimed by the plaintiff. It is vaguely contended by the plaintiff that he is entitled for
Rs.50,000/- towards damages from defendant No. 2 and 3. Absolutely there is no material to establish how the plaintiff is entitled for such damages of Rs.50,000/- from defendant No. 2 and 3. there is no basis for making such plea of damages. Hence, the issue No. 3 is also decided against the plaintiff.
33.Issue No. 6 :
To what relief
In view of the findings in Issue No. 1 to 5 against the plaintiff, the plaintiff is not entitled for declaration that the suit schedule property is a public road. The evidence produced by the plaintiff is not sufficient to conclude that the constructions made by defendant No. 4 is on the public road and that they are illegal and liable to be demolished. The plaintiff failed to prove his case by adducing positive evidence that the said constructions made by defendant No. 4 is illegal and liable to be dismissed and that he is entitled for mandatory injunction. The plaintiff further failed to establish that how he is entitled for damages of Rs.50,000/- from defendant No. 2 and 3.
For all the above reasons, the plaintiff is not entitled for declaration and mandatory injunction as prayed for and the suit is liable to be dismissed without costs.
- 34 -
In the result, the suit is dismissed without costs.
Directly typed to my dictation by the Stenographer - Gr.I, corrected and
pronounced by me in open Court, this the 23rd day of April, 2018.
PRINCIPAL JUNIOR CIVIL JUDGE,
BHEEMUNIPATNAM
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE PLAINTIFFS:FOR THE DEFENDANTS:
PW.1: Josyula Varaha Narasimha Murthy DW.1 : Bonda Nagabhushana Rao (Eschewed).Dw.2 : U. Ramakrishna
PW.2: Josyula Sundara Rao
DOCUMENTS MARKED
FOR THE PLAINTIFF:
Ex-A.1/ Registered Sale deed dt.20.11.1999 executed by Managing Director S. Seetharama Raju, GPA holder of Primarth Relators Private Limited in favour of Ragini Gupta in respect of an extent of 166 sq.yds., Plot No. 37 situated in Survey No. 84/14 and 140 of VUDA approved layout, Madhurawada.
Ex-A.2/ Registered Sale deed dt.05.05.2005 executed by Managing Director S. Seetharama Raju, GPA holder of Primarth Relators Private Limited in favour of Mallidi Ramireddy in respect of an extent of 166 sq.yds., Plot No. 36 situated in Survey No. 84/14 and 140 of VUDA approved layout, Madhurawada.
Ex-A.3/Registered GPA cum agreement of sale dt.06.09.2005 executed by Mallidi Ramireddy in favour of Potula Balakrishna in respect of an extent of 166 sq.yds., Plot No. 36 situated in Survey No. 84/14 and 140 of VUDA approved layout, Madhurawada.
Ex-A.4/ Registered GPA cum agreement of sale dt.05.10.2005 executed by Ragini Gupta in favour of Pothina Bala Krishna Rao in respect of an extent of 166 sq.yds., Plot No. 37 situated in Survey No. 84/14 and 140 of VUDA approved layout, Madhurawada.
Ex-A.5/Registered Sale deed dt.09.11.2005 executed by Mallidi Ramireddy & Pothina Bala Krishna Rao in favour of plaintiff in respect of an extent of 166 sq.yds., Plot No. 36 situated in Survey No. 84/14 and 140 of VUDA approved layout, Madhurawada.
- 35 -
Ex-A.6/Registered Sale deed dt.09.11.2005 executed by Pothina Bala Krishna Rao and Vandrasi Appala Swamy in respect of an extent of 166 sq.yds., Plot No. 37 situated in Survey No. 84/14 and 140 of VUDA approved layout, Madhurawada.
Ex-A.7/ Paper Publication in Eenadu Daily local newspaper dt.18.10.2013
Ex-A.8/ Office copy of application submitted to Grievance Wing, GVMC, Visakhapatnam on 25.10.2010
Ex-A.9/Office copy of re-joinder submitted to Grievance Wing, GVMC, Visakhapatnam on 25.10.2010
Ex-A.10/Office of registered notice got issued by plaintiff to the Commissioner, GVMC on 16.05.2011
Ex-A.11/Postal Acknowledgment
Ex-A.12/Office copy of registered notice got issued by plaintiff to the defendants 1 to 4
Ex-A.13/Postal receipt relating to District Collector, Visakhapatnam
Ex-A14&A15Returned notices from defendant No. 1 and 4
Ex-A.16/Bunch of photographs 10 in number along with CDs two in number
Ex-A.17/Bunch of encumbrance certificates for the year 2005
Ex-A.18/Attested copy of layout for S.No.84/14 and 140 relating to Primarth Relators Private Limited.
Ex-A.19/Certified copy of the endorsement dt.21.08.2007 GVMC, Visakhapatnam pertaining to land in Survey No. 134/1 issued in favour defendant No. 1
FOR THE DEFENDANTS:
Ex-B.1/Authorization letter dt.20.01.2018 issued by Chief Urban Planner, VUDA in favour of Dw.1
Ex-B.2/Attested copy of G.O.Ms.No.502 MA dt.23.10.1991
PRINCIPAL JUNIOR CIVIL JUDGE,
BHEEMUNIPATNAM
- 36 -
IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: BHEEMUNIPATNAM
Present: K. Murali Mohan
Principal Junior Civil Judge,
Bheemunipatgnam.
Monday, this the 23rd day of April, 2018.
O.S. No. 91/2012
Between:
Josyula Varaha Narasimhamurthy S/o Sundara Rao, Hindu, 36 years, Soft Engineer, Zurich Switzerland, rep., by his Power of Attorney, his father Josyula Sundara Rao S/o late Varaha Narasimham, Hindu, 70 years, Retired Central Government Employee, Plot No. 24, Lane 3, Srinivasa Nagar, Behind Deepamahal Cinema Theatre, Srikakulam.
(In view of the death of Power of Attorney Josyula Sundara
Rao, the name of Power of Attorney is omitted from record as
per the Orders in I.A.616/2017 dt.27.11.2017) … Plaintif
And
1.Bayina Srinivasarao S/o Venkanna, Hindu, 28 years, Book Shop & Binding Works, Madhurawada, Chinagadili Mandal, Visakhapatnam District.
2.The Greater Visakhapatnam Municipal Corporation, Rep. By its Commissioner, Visakhapatnam.
3.Visakhapatnam Urban Development Authority Rep. By its Commissioner, Visakhapatnam.
4.Bayina Ramu S/o Venkanna, Hindu, years, Labour, Nagarapupalem,Tarluwada,AnandapuramMandal, Visakhapatnam District.
5.Pilla Venkata Vijay Kumar Bhaskar S/o Krishna Murthy Patrudu, 40 years, Hindu, Business, D. No. 49-48-16/1, NGGO Colony, Akkayyapalem, Visakhapatnam. … Defendants
The plaintiff filed the present suit against the defendants for declaration that the suit schedule property described as ABCD of Sketch attached to the plaint is a public way; for mandatory injunction directing Defendant No. 1, 4 and 5 to remove all unauthorized structures, buildings, sheds, plants and all other erections and obstructions from the schedule property which is depicted in as in sketch; for damages to a tune of Rs.50,000/- from defendant No. 2 and for costs of the suit.
The value of the suit for the purpose of Court fee and Jurisdiction is for the relief of declaration of public way as sought in Para VI
(a), being notionally valued to a tune of Rs.15,000/- and a Court fee of - 37 -
Rs.1,086/- is paid under Sec. 30 B and 24 (d) of A.P.C.F. Act and for the relief of mandatory injunction is valued notinally for Rs.15,000/- and a Court fee of Rs.1,086/- is paid under Sec. 26 (c) of A.P.C.F., and SV. Act and for the relief of damages to a tune of Rs.50,000/- a sum of Rs.2,386/- is paid under Sec. 20 of A.P.C.F., Act., and the total Court fee of Rs.4,558/- paid.
This suit is coming on 28.03.2018 before me for hearing in the presence of Sri P. S. L. K. Bharadwaj, Advocate for the Plaintiff and of Smt. Gara Susheela, Advocate for Defendant No. 2 and of Sri M. A. Rasool, Advocate for Defendant No. 3 and Defendant No. 1, 4 and 5 having remained exparte and having stood over till this day for consideration, this court doth order and pass the following:-
D E C R E E
1. that the suit be and the same is hereby dismissed ; and
2.that there be no costs.
(Copy of schedule hereto attached).
Given under my hand and the seal of this Court, this the 23rd day of April, 2018.
PRINCIPAL JUNIOR CIVIL JUDGE,
BHEEMUNIPATNAM
MEMORANDUM OF COSTS
For Plaintiff : For Defendants :
For VakalatRs. 2-00 For PlaintRs.4,558-00 For ProcessRs. 275-00 For documentsRs. 30-00 Advocate feeRs.4,000-00No Cost Memo is filed Publication chargeRs. 500-00 Typing ChargesRs. 100-00 Writing ChargesRs. 100-00 Clerk WagesRs. 50-00 ----------------- Costs CertifiedRs.9,615-00 ------------------
PRINCIPAL JUNIOR CIVIL JUDGE,
BHEEMUNIPATNAM.
- 38 -
PRINCIPAL JUNIOR CIVIL JUDGE,
BHEEMUNIPATNAM