OS.1800/2012, VI ASCJ, VSP
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IN THE COURT OF VI ADDL. SENIOR CIVIL JUDGE, VISAKHAPATNAM
Present: Smt. K.Neelima, VI Additional Senior Civil Judge, Visakhapatnam
Monday, the 18th day of May, 2020
O.S.No.1800/2012
Between:-
Maddala Santhi, w/o Naga Prasad, Hindu, aged 30 years, Housewife, r/o Srinivasanagar, Akkayyapalem, D.No.44-38-12, Visakhapatnam.
… Plaintif And:
1. Tirumalaraju Narasimha Murthy Raju, s/o Seetha Ram Raju, Hindu, aged about 43 years, Professional, D.No.09-40, N.G.G.O’s Colony, Adavivaram, Visakhapatnam.
2. Dulla Venkata Mahesh, s/o Sanyasi Naidu, Hindu, aged about 44 years, Real Estate Business, D.No.37-12-71/6, N.G.G.O’s Colony, Muralinagar East, Visakhapatnam.
3. Chukka Kanaka Rao, s/o late Pydithalli, Hindu, aged 40 years, Real Estate business, D.No.45-02-33/7/2, Muslim Tatichetalpalem, Akkayyapalem, Visakhapatnam. … Defendants
This suit is coming on 20.02.2020 for final hearing before me in the presence of Sri V.V.Ravi Prasad and Sri J.V.Rama Krishna, Advocates for the plaintif and of Sri S.S.Chalam, Advocate for the 1st Defendant and of Sri T.V.S.K.Kanaka Raju & Co, Advocates for the 2nd Defendant and 3rd Defendant called absent and is set exparte and after having stood over till this day for consideration and this Court delivered the following:
J U D G M E N T
This suit is filed by the plaintif seeking permanent prohibitory injunction against the defendants.
2.The brief averments of the plaint are as follows :
The plaintif submitted that she purchased the suit schedule property i.e., land admeasuring 311.11sq.yds., in Vepagunta village, GVMC through a registered sale deed bearing document No.756/06, dt.27.12.2006 for a valuable consideration from her vendor. From the date of purchase she has been in peaceful possession and enjoyment of the same. The plaintif to protect her property from encroachers and land grabbers intended to construct a compound wall in and around her property and as the basement required repairs due to
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2 recent heavy rains gathered construction material and started digging the ground for construction of compound wall. The defendants and their men who have no right, title over the property came to the schedule property and obstructed the plaintif to construct a compound wall and thereby tried to encroach the plaint schedule property and they were questioned by the plaintif and her husband but the defendants failed to give any appropriate reply but threatened the plaintif that they will interfere with the plaintif’s peaceful possession and enjoyment. Then the elders by name A.Eswara Rao, Prabhakar,
Sada Sivam, T.Venkata Ramana, P.Srinivasa Rao, Mallesh, Ravi and Sk. Madeena intervened and pacified the matter, then the defendants and their men left the property by proclaiming that they will come with more men and interfere with the possession of the plaintif and dispossess her from the property. Hence, the plaintif filed the suit seeking permanent prohibitory injunction by way of restraining the defendants from causing interference with her peaceful possession over the suit schedule property.
3.The 1st defendant filed written statement and denied the allegations mentioned in the plaint. He submitted that he has nothing to do with the plaint schedule property and the plaintif unnecessarily filed the suit against him. Defendant further submitted that earlier some third party has informed the defendants that their site is in the plaintif’s vendor’s society. Then the 1st defendant made an enquiry with the help of local surveyor and he came to know that the property is covered in S.No.164/1 in an extent of Ac.1.00 belongs to one
Ayyala Somayajula Srirama Sarma and MRO issued a patta in favour of Ayyala
Somayajula Srirama Sarma vide patta No.3147 and the said Srirama Sarma have been in possession and enjoyment of the same and he filed a suit against the defendants before the Junior Civil Judge’s Court at Bheemunipatnam and the said suit was decreed. The 1st defendant further submitted that the plaintif never in
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3 possession and enjoyment of the suit schedule property at any point of time and requested the court to dismiss the suit.
4.The 2nd defendant filed separate written-statement and denied the allegations mentioned in the plaint. He submitted that he is the power of attorney holder of Sri Ayyala Somayajula Srirama Sarma, s/o late
Lakshmi Narasimha Panthulu who is absolute owner of an extent of land covered by S.No.164/1. The said Ayyala Somayajula Srirama Sarma got right over the property through a registered sale deed, dt.26.11.1934 executed by one
Gudavarthi Narayanacharyulu in favour of Ayyala Somayajula Lakshmi
Narasimha Panthulu, father of Sri Ayyala Somayajula Srirama Sarma. Since the date of purchase the father of Ayyala Somayajula Srirama Sarma was in peaceful possession and enjoyment of the property. After demise of Ayyala Somayajula
Lakshmi Narasimha Panthulu, the said Ayyala Somayajula Srirama Sarma succeeded the said property and had been in peaceful possession and enjoyment of the same.
The 2nd defendant further submitted that the Visakhapatnam Urban
Development Authority granted layout permission to Hindustan Shipyard Staf
Co-operative Building Society Limited under BLP No.07/89, dt.08.03.1989 and again granted revised BLP No.04/90, dt.25.09.1990. The VUDA mischievously included the land of Sri Ayyala Somayajula Srirama Sarma in the layout of
Hindustan Shipyard Staf Co-operative Building Society Limited and thus, Ayyala
Somayajula Srirama Sarma submitted that the officials of VUDA have colluded and connived with the said society and sanctioned LP No.39/94, dt.23.09.1994 to the said layout. Ayyala Somayajula Srirama Sarma brought to the notice of VUDA and in turn VUDA gave a show cause notice to the society and the society submitted that they have not purchased the land covered by S.No.164/1 of
Vepagunta village and accordingly, cancelled BLP No.4/90 vide RC No.3173/88-
G2, dated 19.05.1992. Thereafter there was a lull for quite some time and again
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4 the status quo ante was restored by reviving the block layout plan which were cancelled earlier.
The 2nd defendant submitted that on 08.09.2011 the officials of municipal corporation and the men of Hindustan Shipyard Staf Co-operative
Building Society Ltd., Sri R.Ratna Kumar, President, Sri Ramakrishna, Secretary and Sri B.Mohan Rao have highhandedly and unauthorizedly ventured to trespass tentatively and demolished the cement poles fixed to the ground. After the incident they left the place. Again there was another attempt to occupy the schedule property by the said people on 18.09.2011. Sri Ayyala Somayajula
Srirama Sarma again resisted highhanded actions of the said people and also got issued another notice calling upon them to pay damages of Rs.10,00,000/- for the last occasioned at the instance of them. Ayyala Somayajula Srirama Sarma represented by the 2nd defendant herein was constrained to file a civil suit in
O.S.1500/2011 on the file of VI Additional Senior Civil Judge court against the
Hindustan Shipyard Staf Co-operative Building Society Ltd., represented by its
President and three others and also obtained an interim order in his favour. He also filed a suit in O.S.No.73/2011 on the file of Junior Civil Judge’s Court,
Bheemunipatnam and obtained a decree in his favour. The name of Ayyala
Somayajula Srirama Sarma was also recognized as a person in possession and enjoyment of the property as a rightful owner by the various government authorities and pattas have been granted in favour of Ayyala Somayajula
Srirama Sarma. There is a compound wall around the boundaries of Ac.1.00 property that absolutely belongs to said Ayyala Somayajula Srirama Sarma represented by 2nd defendant. The plaintif in view of a cloud on her right, title will have to file a suit for declaration of her title over the suit schedule property and the suit is not maintainable. For the above said reasons, the 2nd defendant requested this court to dismiss the suit with exemplary costs.
5.Basing on the pleadings, the following issues are settled :
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1) Whether the plaintif has been in possession and enjoyment of the suit schedule property?
2) Whether the plaintif is entitled to get the relief of permanent injunction as prayed for?
3) To what relief?
6.During course of trial, on behalf of the plaintif PWs 1 and 2 are examined and Exs.A1 to A25 are marked. On behalf of the defendants DW1 examined and Exs.B1 to B73 are marked.
7.Heard arguments submitted by learned counsel for the defendants.
8.ISSUE NO.1: Whether the plaintiff has been in possession and enjoyment of the suit schedule property?
At the outset the relief of injunction is an equitable relief. Therefore, the plaintif has to approach the court with clean hands without suppressing any material facts and by placing proof before the court. Similarly, the plaintif has to stand or fall on her own case and she cannot take advantage of the lacuna in the case of the defendants.
9.Before proceeding with the oral and documentary evidence the record shows that the plaintif did not enter into the witness box and her husband Sri Maddala Naga Prasad examined as PW1 and one V.Nagalingeswara
Rao examined as PW2. On the other hand, the contesting 2nd defendant examined as DW1. The plaintif exhibited Exs.A1 to A25 whereas the 2nd defendant exhibited Exs.B1 to B73.
10.The record before me shows that there were prior disputes between the parties to the suit. The plaintif filed this suit against Tirumala Raju
Narasimha Murthy Raju, Venkata Mahesh and Ch.Kanaka Rao out of which the 3rd defendant remained exparte. The 1st defendant T.Narayana Murthy Raju filed written statement but did not examine himself as a witness. This is because when PW1 was examined by learned counsel for the 1st defendant made several
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6 admissions that the 1st defendant is nothing to do with the suit schedule property and he never interfered with the possession and enjoyment of the plaintif over the suit schedule property and he has no objection to dismiss the suit against the 1st defendant. In view of the same, this court is left with oral and documentary evidence of plaintif and the 2nd defendant to decide the issues involved in the suit.
11.This is the case of the plaintif that originally the suit schedule property was acquired by Hindustan Shipyard Staf Co-operative
Building Society Ltd., for the purpose of laying house plots by way of housing board and the said society purchased the land of an extent Ac.23.14cents covered by S.No.164/1, 164/1A, 164/2 and 166 of Vepagunta village under five registered sale deeds and formed a layout in and around 1992 or 1993 and the plaintif purchased the property from Sri Akella Venkata Sarma under a registered document bearing No.7526/06 on 27.12.2006. The plaintif contended that after purchasing the property under a registered sale deed dated 27.12.2006 she is enjoying the same with absolute rights. According to the plaintif the actual dispute arose when the plaintif intended to construct a compound wall around the suit schedule property on 26.11.2012 the defendants and their men prevented the plaintif to construct the same and thus, the plaintif seeking for permanent prohibitory injunction against the defendants.
12.The contesting 2nd defendant strongly opposed the claim of the plaintif. He filed his written statement contending that he is GPA holder of
Ayyala Somayajula Srirama Sarma who is the absolute owner of Ac.1.00 of land in S.No.164/1 of Adavivaram village and the suit schedule property is part and parcel of the same. Ayyala Somayajula Srirama Sarma gave a GPA in favour of 2nd defendant and he is in possession and enjoyment of the property in his capacity as GPA holder of Ayyala Somayajula Srirama Sarma and the 2nd
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7 defendant raised a compound wall and a shed in the suit schedule property and he is looking after the same by engaging a watchman.
13.The 2nd defendant further contended that prior to filing of the suit Ayyala Somayajula Srirama Sarma learnt that the society is planning to have a housing board and Sarma raised objection before VUDA claiming that the suit schedule property which is part of Ac.1.00 land in S.No.164/1 is owned by him and the society has nothing to do with it and hence, approval of plan cannot be given in respect of the land in S.No.164/1. Basing on the objections a notice was given to the society and they inturn informed to VUDA that they did not acquire the land of Ac.1.00 belongs to Ayyala Somayajula Srirama Sarma in S.No.164/1 and they are not laying any layout therein in view of the same VUDA informed to
Ayyala Somayajula Srirama Sarma that Ac.1.00 of land is not included in the layout and cancelled the layout and issued revised approval layout vide BLP
No.04/90.
14.The 2nd defendant therefore, claiming that the plaintif or her vendor or vendor’s vendor and the society have no right, title over the suit schedule property. Subsequently, the 2nd defendant came to know that a layout was mischievously laid by cancelling BLP 7/89 and on coming to know about the same Ayyala Somayajula Srirama Sarma represented by this defendant filed
O.S.1500/2011 on the file of this court and obtained interim injunction order and
also filed O.S.73/2011 on the file of Junior Civil Judge’s Court, Bheemunipatnam by making the society who is vendor’s vendor of the plaintif as a party to the suit and the said suit was decreed in favour of Ayyala Somayajula Srirama
Sarma. The 2nd defendant therefore, contends that the suit for mere injunction is not maintainable under law and the plaintif has to necessarily file a suit seeking for declaration for right and title over the suit schedule property. He went on to contend that Ayyala Somayajula Srirama Sarma is necessary party to the proceedings and non-joinder of Ayyala Somayajula Srirama Sarma is fatal to the
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8 case of the plaintif and that the 2nd defendant requesting this court to negate the claim of the plaintif.
15.Subsequent to filing of the written statement the plaintif did not file any rejoinder despite above specific contention of the 2nd defendant.
16. Now, I proceed to examine the oral and documentary evidence let in by the plaintif and the defendants. In view of the nature of the suit I proceed to examine the evidence let in by the plaintif. As I already observed above the plaintif did not enter into witness box and her husband Sri
Maddala Naga Prasad examined as PW1.
17. The chief examination affidavit of PW1 discloses the plaint averments and in addition to the same he deposed a new story running from para 3 to 5 which was not pleaded by the plaintif in the plaint. The same is reproduced hereunder for convenience sake :
“I submit that the plaint schedule property is a plot in a layout, laid by
Hindustan Shipyard Staff Co-operative Building Society, herein after referred as society, approved by VUDA under LP No.30/1994. I submit that the said society had purchased the land of an extent of Ac.23.14 cents covered by S.Nos.164/1, 164/1A, 164/2 and 166 of Vepagunta village under five registered sale deeds bearing document from its lawful owners and formed a layout in the said land and in other adjacent lands. The actual development of the whole land into a layout has started prior to 1990 and was fully completed in and around 1992 or 1993. I submit that the layout has all the basic physical features, i.e., well demarcated plots, 80 feet roads and other internal roads, street lights, underground drainage system with manholes. Further in many plots in the layout single storied as well as multistoried buildings have come up resembling a well inhabited colony. I submit that the 2 nd defendant, who is believed to be a seasoned man in land grabbing activities, has been causing trouble not only to us but to many people in the layout trying and has been trying to occupy an
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9 extent of one acre of land in the layout. I submit that the 2 nd defendant in his written statement has taken false pleas and claimed to be agent of one
Ayyalasomayajula Srirama Sarma, who is alleged to be the owner of an extent of
Ac.1.00 cents covered by S.No.164/1 and that the father of his principal purchased the said extent of Ac.1.00 cents in S.No.164/1 under registered sale deed bearing document No.2069/1934 dt.25.11.1934. I submit that the vendee under document No.2069/1934 is not the father of Ayyalasomayajula Srirama
Sarma at all and he is altogether a different person. I submit that
Ayyalasomayajula Srirama Sarma the alleged principal of 2 nd defendant was a notorious and unethical person. He was an officer in Revenue Department and worked in the department in different capacities. I submit that using his mischievous intelligence and manipulative capacities, with the active support of persons of similar character and conduct, took advantage of the name of the vendee in document No.2069/1934, which is disguisingly similar to the name of his father. I submit that Ayyalasomayajula Lakshmi Narasimham, s/o late
Perayya was the father of the alleged principal of 2 nd defendant and whereas
Ayyalasomayajula Narasimham Panthulu s/o Rayudu is the vendee under document No.2069/1934. I submit that the father of the alleged principal of the 2 nd defendant purchased undivided share of Ac.13.60cents out of Ac.27.20cents in S.No.164/1, 164/1A, 164/2 and 166 situated in Vepagunta of Visakhapatnam
District from Godavarthi Narayanacharyulu under a registered sale deed
No.659/1928 dated 09.05.1928 and sold the said property i.e., Ac.13.60cents back to Godavarthi Narayanacharyulu under registered sale deed dated 20.07.1931 vide doc.number 961 to 1931. I submit the same Godavarthi
Narayanacharyulu sold Ac.1.00cents in S.No.164/1 to Ayyalasomayajula
Narasimham Panthulu, s/o Rayudu under registered sale deed dated 26.11.1934 vide document No.2069 of 1934 out of the total extent of Ac.27.20cents. The purchaser Ayyalasomayajula Narasimham Panthulu made an endorsement on
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10 the last page of the document on 31.08.1939 stating that the sale deed is a nominal one and was never acted upon and no consideration was passed on and hence, it was cancelled. Thus, Godavarthi Narayanacharyulu continued to be the owner of the total extent of Ac.27.20cents in S.No.164/1, 164/1a, 164/2 and
166. I submit that Godavarthi Narayanacharyulu s/o Venkata
Narasimhacharyulu executed Will dated 12.07.1970 bequeathing the properties to his great grandsons, the male heirs of the said person and from them society purchased Ac.23.14cents in S.Nos.164/1, 164/1A, 164/2 and 166 under five different registered sale deeds bearing document numbers 11325/1985 to 11329/1985 out of the total extent of Ac.27.20cents and took possession of the extent. The society also purchased Ac.12.94cents from Dasari Ammojiamma and others vide document No.3449/1986 in S.No.164/3 and 164/A, which is an abutting land to the land of Ac.23.14cents purchased by it under the above referred five sale deeds. Thus, the society became the owner of land admeasuring Ac.36.08cents which is a compact and contiguous land, which was developed into a layout as submitted by me above and the suit schedule property is a plot in the said layout. I submit that the land of nearly Ac.4.00 in
S.No.164/1 and S.No.164/1A that the vendors of the society were left with, was purchased from them under a registered document bearing document
No.2081/2000, dt.24.06.2000 by an association called Mytrinagar Association, which is a registered Association, formed by employees of Life Insurance
Corporation of India. I submit that falsely pleading that the vendee in document
No.2069/1934 is his father and suppressing the fact right or interest was never claimed by the vendee in the said land over the property thereunder and that it was also cancelled by an endorsement, the alleged principal of the 2 nd defendant clandestinely obtained patta from the revenue authorities in the year 1991 and later it was set aside at the instance of the society in the appeal filed by it before
RDO, Visakhapatnam impugning the order granting patta for Ac.1.00 in his
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11 favour, who had remanded the matter and confirmed by the honourable High
Court in the writ petition filed by the alleged principal of 2 nd defendant. I submit that the alleged principal of 2 nd defendant kept silence after the honourable High
Court had remanded the matter, without pursuing the matter before the primary authority again fearing exposure of truth. I submit that I learnt that the 2 nd defendant approached his alleged principal and started litigation again from 2007 or 2008 onwards. I submit that I filed documents, which are the documents of title of my wife, the plaintiff herein, documents showing my wife’s possession, existence of layout, various proceedings to show the mischief played by the alleged principal of 2 nd defendant etc. I pray the honourable court to mark them as exhibits. I submit that neither the defendants nor anybody, including the alleged principal of the 2 nd defendant have any right and possession over the suit schedule property or for that matter in any part of the layout.”
18.I carefully perused chief examination of PW1 and it discloses that the plaintif without filing any rejoinder choose to mention in the chief examination of PW1 which evidence is nothing but a contradictory version to the written statement contents of the 2nd defendant. However, the evidence refers in para 3 to 5 cannot be considered as the same is not covered by pleadings and the plaintif did not file any rejoinder. The plaintif chose to mark Exs.A1 to A29 through PW1 in support of her case. Out of which Exs.A1 to A4 only referred in the plaint list of documents. Exs.A5 to A29 not shown in the list of documents and there is no pleading in the plaint regarding Exs.A5 to A29. These documents are filed subsequent to the plaint. But the entire case of the plaintif was cut at the root by the 2nd defendant who placed Ex.B1 before the court which is a reply given by Hindustan Shipyard Staf Co-operative Building Society Ltd., the vendor’s vendor of the plaintif stating that land covered by S.No.164/1 was not
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12 acquired by the society. This is because the case of the plaintif is that the suit schedule property is covered by S.No.164/1, 164/3.
19.Whereas in the cross-examination PW1 categorically admitted that the plaint schedule property is situated in S.No.164/1A and he stated that he has no claim regarding the property situated in S.No.164/1. PW1 admitted that the property claimed by 2nd defendant covered by compound wall and he is in possession and enjoyment of Ac.1.00 land and the same depict in
Exs.B1 to B8 photographs. He went on to admit that as per Ex.B11 survey report given by Deputy Inspector of Survey the plaint schedule property i.e., plot
No.323 is not covered by S.No.164/1 and does not form part of layout of the society. PW1 further admitted that they got it noted in Ex.B9 copy of application submitted before the Regional Deputy Director Land and Survey (Ex.B9 marked through PW1) stating that their property situated in S.No.164/1 and 2nd defendant encroached the said property and he is in possession of the property by raising a shed. Ex.B9 document relates to the date 11.07.2014. This evidence clearly shows that PW1 and his wife plaintif have knowledge about possession of 2nd defendant over suit schedule property.
20.Further PW1 admitted that VUDA confirmed that the society never acquired the land covered by S.No.164/1 and VUDA issued proceedings in this regard and the said proceedings admitted by him and marked through him as Ex.B11. PW1 went on to admit that as per the orders in A.S.7432/2012 dated 10.05.2017 marked as Ex.B12 the Revenue Divisional Officer cancelled the patta issued in the name of 2nd defendant and the same challenged by 2nd defendant by way of filing writ petition vide W.A.No.24516/2017 and Honourable High Court held that Revenue Divisional Officer has not competent to pass above order. The order in W.P.No.24516/2017 marked as Ex.B13. PW1 admitted that VUDA issued proceedings under Ex.B14 confirming that the society never acquired land in
S.No.164/1. PW1 went on to admit Exs.B15 to B23 out of which Ex.B15 is copy of
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13 explanation dt.20.05.1991, Ex.B16 is explanation dt.28.09.1991, Ex.B17 is explanation, dt.20.09.1991, Ex.B18 is explanation dt.20.04.1992, Ex.B19 is proceedings issued by VUDA, dt.19.05.1992. Ex.B20 is letter, dt.26.06.2014,
Ex.B21 is proceedings dt.10.10.2013 issued by MRO, Pendurthy, Ex.B22 is letter, dt.29.03.2013. As per the above said documents it is evident that the society never purchased land in S.No.164/1. The above admissions by PW1 suggest that he is admitting the case of 2nd defendant. While so, it is pertinent to observe that no such explanation was given by the plaintif in her pleadings or by filing a rejoinder or by specifically mentioning the same in suit schedule. Therefore, the burden to prove that the suit schedule property is located in S.No.164/1A is on the plaintif as there shall not be any ambiguity in respect of the property for which injunction is sought.
21.The plaintif who approached the court is expected to prove the genesis and truth before the court but the plaintif or PW1 though placed
Exs.A1 to A29 did not place any specific documentary evidence to prove that the suit schedule property is located in S.No.164/1. The schedule in Exs.A1, A3 discloses that the schedule property is part of S.No.164, 164/1 and 164/3. PW1 has already stated above admissions that the 2nd defendant is in possession and enjoyment of Ac.1.00 land in S.No.164/1 and the society stated that they did not acquire land in S.No.164/1 of Adivivaram village. Therefore, mentioning of
S.No.164/1 the registered sale deed of the plaintif create any amount of doubt about the genuineness of the approval of layout as rightly contended by the 2nd defendant. In view of the same the plaintif is expected to examine either her vendor or vendor’s vendor or any official from the society or VUDA to prove that the suit schedule property is infact acquired by the society and is a part and parcel of the layout BLP 4/09 and subsequent approval plan. Further, it was stated by plaintif the suit schedule property surveyed in 2014 and a report was given by the surveyor. The said report could have clear the issue as to whether
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14 the suit schedule property is in S.No.164/1 or 164/1A. For the reasons best know to the plaintif or PW1 they did not file the survey report before the court. But
PW1 admitted Ex.B11 survey report during his cross-examination which suggests that it is not in favour of the plaintif. Further, in a suitable case where there is a dispute or ambiguity of the location of the suit schedule property either parties to the suit can seek for the appointment of advocate commissioner to decide the issue but in this case surprisingly, the plaintif and the defendants did not opt for the same.
22.Now, I proceeded to examine the documentary evidence exhibited by the plaintif. Ex.A1 is certified copy of sale deed stand in the name of plaintif. She purchased suit schedule property from Akella Venkata Sharma on 27.12.2006. Ex.A2 is certified copy of sale deed stands in the name of Akella
Venkata Sharma in respect of suit schedule property dt.30.10.1999. Plaintif’s vendor Akella Venkata Sharma purchased the property from Chodampu Rama
Rao who in turn purchased the property from Hindustan Shipyard Staf House
Building Society on 09.04.1995. The said document marked as Ex.A3. The plaintif did not choose to examine either her vendor or vendor’s vendor or attestors or scribe of Exs.A1 to A3. As per settled law mere filing and marking a document is not sufficient. The contents of the documents should be proved by examining the parties to the document or attestors. But the plaintif failed to do so in order to prove the contents of Exs.A1 to A3. Admittedly PW1 is not a party to the above said documents.
23.Now coming to Ex.A4 photographs. According to the plaintif Ex.A4 photographs belong to suit schedule property but the plaintif failed to show the link to connect these photographs to suit schedule property. Neither the plaintif nor any name board depicts in the said photographs. No proof placed before the court to show that these photographs related to suit schedule property. Thus,
Ex.A4 photographs noway helpful to the case of the plaintif. Ex.A5 is certified
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15 copy of mortgage deed executed by plaintif in favour of Pitty Chitti Babu wherein the plaintif mortgaged the suit schedule property to mortgagee on 18.11.2010. This date clearly shows that plaintif mortgaged the property prior to filing of the suit. But she did not mention the same in the plaint. Neither the mortgagee nor attestors under Ex.A5 are examined in order to prove the contents of Ex.A5. Hence, Ex.A5 document cannot be considered. The plaintif got marked copy of layout plan as Ex.A6. As per the claim of the 2nd defendant the said layout was cancelled initially. Ex.A7 certified copy of order in writ petition No.17638/2007 on the file of Honourable High Court of Andhra Pradesh,
dated 17.06.1997. The said writ petition filed by 2nd defendant herein against
RDO, Visakhapatnam, MRO Pendurthy and Hindustan Shipyard Staf Co-operative
House Building Society seeking dismissal of order of RDO, Visakhapatnam in his proceedings No.AIA No.1/92, dt.13.08.1993. The said writ petition ended in dismissal holding that RDO, Visakhapatnam has power to remand the matter for further disposal. This order does not speak right, title and possession of the parties to the present suit over suit schedule property. Hence, Ex.A7 is no way helpful to the plaintif’s case. Exs.A8 to A15 are certified copies of sale deeds, adoption deed, Will. These documents filed by the plaintif to show that the principle of 2nd defendant with a malafide intention to claim right over the property fabricated documents taking advantage of the similarity in the name
Ayyalasomayajula Narasimham Panthulu, s/o Rayudu – Ayyalasomayajula
Lakshmi Narasimham, s/o late Parayya.
24.The plaintif got marked certified copy of proceedings issued by MRO, Pendurthy as Ex.A17. Ex.A18 is certified copy of letter issued by
Revenue Divisional Officer and Manager, Ex.A19 letter addressed by Joint
Collector, Visakhapatnam to the Registrar, A.P. Lokayukta, Ex.A20 is certified copy of letter issued by A.P. Lokayukta, Ex.A22 is certified copy of letter issued by RDO to Deputy Superintendent of Police. These letters are correspondence
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16 held between government officer about enquiry in respect of disputed land in
S.No.164/1. The gist of the above documents is that matter remanded back for fresh enquiry and the earlier order stands cancelled. Therefore, the said documents noway helpful to the case of the plaintif. Ex.A23 is certified copy of writ petition in W.P.No.17638/1993. Ex.A24 is certified copy of
W.U.M.P.No.2425/1994 in W.P.No.17638/1993. Ex.A25 is copy of reply affidavit filed by Ayyalasomayajula Srirama Sarma in W.P.M.P.No.22291/1993. These documents relates to orders under Ex.A7. Ex.A26 is certified copy of registered sale deed executed by Jayanthi Karunakar in favour of Vasa Satyanarayana and three attestors in respect of plot No.286 in S.No.164/1A and 164/3 of Vepagunta village. In order to show the existence of plots in the layout in LP No.30/1994 this document is filed by the plaintif. Ex.A29 is certified copy of letter from
Regional Deputy Director Survey and Land Records, Kakinada to The Collector,
Visakhapatnam. These documents filed by the plaintif to show lacuna in the title of the 2nd defendant’s vendor.
25.However, while deciding a suit for permanent prohibitory injunction the court is supposed to check the entitlement of the plaintif to have the relief but not the disentitlement of the defendants or lacuna or latches in the case of the defendant. It is an established principle of law that even if the defendant fails to prove his contentions the same cannot be a reason for the plaintif to claim an injunction. The plaintif has to independently prove his case and in case of his failure he is not entitled for the relief prayed for. In the case on hand, the plaintif instead of proving her case she is making strenuous eforts to impress that the 2nd defendant or his predecessor do not have title over the property. Even if it is accepted that the defendants failed to prove that they have right, title and possession over the suit schedule property, the same will not absolve the plaintif from proving his case.
OS.1800/2012, VI ASCJ, VSP
17 26.The plaintif examined one Vasa Sada Siva Nagalingeswara Rao as
PW2. Though he is third party to the suit his chief examination is nothing but replica of plaint and chief examination affidavit of PW1. According to him he got knowledge about layout formed by the society. But during cross-examination he deposed that he was present during cross-examination of PW1. He does not know in which survey number the plaint schedule property situated. He admitted that the defendant got constructed a compound wall and shed in 2013 in his Ac.1.00 land covered by S.No.164/1 and 164/1A and survey conducted in respect of suit schedule property. He also admitted the letter sent by society stating that they have not purchased land in S.No.164/1 and initially patta issued in the name of Sharma and the said land is inam land. PW1 stated that he got knowledge about Ex.B12 order issued by RDO. In view of the above admission of
PW2, it is clear that he is an interested witness and thus, his evidence is untrustworthy. Here, it is pertinent to mention that the plaintif chose to examine PWs 1 and 2 only. She referred in the plaint the names of A.Eswar Rao,
Prabhakar, Sada Siva, T.Venkataramana, Srinivasa Rao, Mallesh, Ravi, Sk.
Madeena, local persons who intervened at the time of alleged attempt by the defendants to encroach the suit schedule property. But she did not choose to examine above said local persons to prove the alleged cause of action.
27.The learned counsel for the 2nd defendant cross-examined PW1 at length and as a part of it, he confronted PW1 with Exs.B1 to B23 documents.
PW1 admitted all the documents. Ex.B12 is an order of RDO in D.Dis
No.7432/2013 which was admitted by PW1clearly shows that the plaintif herein shown as 14th respondent and she obtained a patta in respect of suit schedule property and the 2nd defendant preferred an appeal before RDO wherein it was held that the patta of the plaintif was held to be cancelled and kept in abeyance.
Further, it was observed that as the dispute includes a dispute about title both parties are directed to approach a civil court. Hence, two points can be
OS.1800/2012, VI ASCJ, VSP
18 considered from this, first point, the plaintif who is contending that she purchased the property under a registered sale deed is putting forth a new case contrary to the above that she was issued with a patta in respect of the said property. These two pleas are contrary to each other and the plaintif failed to give any explanation for the same. Point No.2, the plaintif suppressed the said fact of issuance of patta and filing of the case before RDO etc., from the court at the time of filing of the suit. Thus, it is clear that the plaintif approached the court with unclean hands.
28.The 2nd defendant examined as DW1 and he exhibited
Exs.B24 to B72. Out of the said documents Ex.B24 is certified copy of sale deed, dt.26.11.1934, Ex.B25 is certified copy of sale deed, dt.27.03.1928. These documents filed by the 2nd defendant to show his principal’s right over the property over Ac.27.20cents of land. Ex.B26 is certified copy of rythuvari patta, dt.22.06.1991. Ex.B27 is certified copy of GPA executed by Ayyalasomayajula
Srirama Sharma in favour of 2nd defendant. Ex.B28 is office copy of complaint filed before Special Judge, ACB, Visakhapatnam. Ex.B29 to B58 and B60 to B72 are proceedings and correspondence between Revenue Survey Department,
GVMC officials. Ex.B59 is death certificate of Ayyalasomayajula Srirama Sarm.
Through these documents 2nd defendant impress upon the count that he is in possession of Ac.1.00 land which includes the suit schedule property. He chose to file the survey report before the court and the same was marked as Ex.B11 through PW1 and he admitted the same. The said report clearly shows that
Ac.1.00 of land in S.No.164/1 which includes the plaint schedule property given by way of inam patta Ayyalasomayajula Lakshmi Narasimha Panthulu father of
Ayyala Somayajula Srirama Sarma and that the said Ac.1.00 of land though was included in the layout the same was only an encroachment. It clearly shows that the plaintif’s case that she has right and title over the property and that the suit
OS.1800/2012, VI ASCJ, VSP
19 schedule property is in S.No.164/1 and 164/1A is not correct and on the other hand, the above contention proves the case of the 2nd defendant.
29.While dealing within a suit for injunction, certain principles are to be followed of which the principle that the failure of the defendant in proving his contention will not automatically entitle the plaintif to the relief of injunction as prayed for. The case on hand, it is already observed by me that the plaintif failed to prove that she is entitled to the relief of injunction. But the defendant was cross-examined by the learned counsel for the plaintif at length nearing to almost 15 pages. The plaintif concentrated more on the latches in the case of the defendant i.e., the learned counsel for the plaintif made strenuous cross-examination while stating that the 2nd defendant or his principal
Ayyalasomayajula Srirama Sarma or his predecessors in title do not have title over the property and that there was earlier litigations before the revenue authority between the parties and through the MRO, Pendurthy was directed to enquire to the matter afresh. The defendant conveniently kept quiet without getting his title decided by pursuing the matter before the revenue authority.
The intention of the plaintif is to show that the defendant or his predecessors in title do not have any right or title over the property and without having any right or title they are trying to grab the property of the plaintif and hence, the plaintif is entitled to permanent injunction as prayed for. But it is pertinent to observe that the plaintif did not even disclose the name of her vendor in the plaint and as already observed earlier even after filing the written statement she did not choose to either file a rejoinder or amend the plaint and without having any pleadings the plaintif introduced Exs.A1 to A25 to impress the court that she is having right, title and possession over the suit schedule property without proving her own case do not hold any strength. Therefore, need not be considered. In view of the above observation, it can only be said that the entire cross- examination of DW1 is nothing but a futile excuse. In view of my above
OS.1800/2012, VI ASCJ, VSP
20 observation to hold that the alleged defect in the case the defendant do not ensure to the benefit of the plaintif and the same do not entitle the plaintif to have an injunction as prayed.
30.The learned counsel for the 2nd defendant filed citations and the same are discussed hereunder :
1. Aanaimuthu Thevar Vs. Alagammal and others reported in 2005 AIR SCW 3516, wherein it is held that the courts below should not give any findings with reference to any title over the property if the party seeks a mere injunction.
2. Anathula Sudhakar Vs. P.Buchi Reddy died represented by
LRs reported in 2008 AIR (SCW) 2692, wherein it is held that :
“We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff’s title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, 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, believing 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
OS.1800/2012, VI ASCJ, VSP
21 plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.”
Relying on the above citation, learned counsel for the defendant sought for dismissal of the present suit since the plaintif opted to seek relief of permanent injunction instead of relief of declaration. In this regard, this court is of the opinion that as laid down in case law held between Anathula Sudhakar
Vs. Butchi Reddy whenever a dispute is in respect of title the plaintif is entitled to file a suit for declaration of title and atleast after filing of the written statement by the defendant and the defendant disputes the title of the plaintif over suit schedule property and claims title in him, the plaintif is at liberty to amend the plaint but the plaintif herein failed to do so. In view of the same, the plaintif’s suit for mere injunction is not maintainable under law.
31.In view of my discussion and in view of the documentary evidence placed by the plaintif and the 2nd defendant and the cross-examination of PW1, it is clear that PW1 is admitting that the property of 2nd defendant is in
S.No.164/1 and that the 2nd defendant is in possession and enjoyment of the same. Whereas the contention of the plaintif that her property located in
S.No.164/1A neither covered in the pleadings nor any documentary evidence.
Therefore, it is clear from the oral and documentary evidence placed before this court that the plaintif has failed to prove her right, title and possession over the suit schedule property. In view of my above discussion, I hold that the plaintif failed to prove her possession over the suit schedule property and she is not
OS.1800/2012, VI ASCJ, VSP
22 entitled for the relief of permanent injunction. Issue No.1 answered against to the plaintif.
32.ISSUE NO.2 :Whether the plaintiff is entitled for the relief of injunction?
In view of my discussion in issue No.1 it is clear that the plaintif approached the court with unclean hands by suppressing material facts and she failed to prove before the court she has prima facie case. The plaintif failed to establish the three cardinal principles. Therefore, I hold that the plaintif is not entitled for the equitable relief of injunction. Issue
No.2 answered against to the plaintif.
33. ISSUE NO.3 :To what relief?
In the result, the suit is dismissed without costs..
Dictated to the Stenographer Gr-I and transcribed by her, corrected and
pronounced by me in open Court this the 18 th day of May, 2020.
VI Addl. Senior Civil Judge Visakhapatnam.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:FOR DEFENDANTS: PW1 : Maddala SanthiDW1 : Dulla Venkata Mahesh PW2 : Vasa Sada Siva Nagalingeswara Rao
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A1/27.12.2006 : Certified copy of sale deed Ex.A2/30.10.1998 : Certified copy of sale deed Ex.A309.02.1999 : Certified copy of sale deed Ex.A4/27.11.2012 : Photographs 3 in number along with C.D. and cash bill Ex.A5/18.11.2010 : Certified copy of registered mortgage deed Ex.A6/06.02.2013 : Layout plan blue print copy certified by town planning officer VUDA Ex.A7 : Certified copy of orders in petition no.17638/2002. Ex.A8/27.03.1928 : Certified copy of sale deed
OS.1800/2012, VI ASCJ, VSP
23
Ex.A9/09.05.1928 : Certified copy of sale deed Ex.A10/20.07.1931:Certified copy of sale deed Ex.A11/26.11.1934:Certified copy of sale deed Ex.A12/17.10.1985:Certified copy of sale deed Ex.A13/17.10.1985:Certified copy of sale deed bearing document no.11327/1985 Ex.A14/17.10.1985:Certified copy of sale deed vide document no.11328/1985 Ex.A15/16.10.1985:Certified copy of sale deed vide document no.11329/1985 Ex.A16/17.10.1985:Certified copy of sale deed vide document no.11326/1985 Ex.A17/22.06.1991:Certified copy of proceedings of th Mandal Revenue Officer of Pendurthy Ex.A18/01.03.2013:Certified copy of letter issued by Public Information Officer and Manager, Anakapalli Municipal Corporation Ex.A19/18.03.2013:Certified copy of letter addressed by Joint Collector to the Registrar, AP Lokayukt, Hyderabad Ex.A20/19.06.2013:Certified copy of letter issued by Joint Collector, Visakhapatnam to the Registrar, AP Lokayukt, Hyderabad Ex.A21/24.06.2000:Certified copy of agreement to sell with power of attorney Ex.A22/31.12.2013:Certified copy of letter issued by Revenue Divisional Officer, Visakhapatnam the Deputy Superintendent of Police, Anti Corruption Bureau Ex.A23 :Certified copy of writ petition vide V.P.No.17638/1992 Ex.A24 :Certified copy of WBMP No.2425/1994 in writ petition 17638/1992 Ex.A25 :Certified copy of reply affidavit of the writ petition filed in Writ Petition no.17638/1992
FOR DE FENDANTS:
Ex.B1 to B8: Photographs Ex.B9/11.07.2014: Copy of application submitted before the regional deputy director land and survey Ex.B10/31.01.2013: Complaint copy Ex.B11: Copy of survey report Ex.B12/10.05.2017: Order copy in AS 7432/2013 Ex.B13/22.02.2018: Order in writ petition no.24516/2017 as per the order
Hon’ble Court, AP
Ex.B14/23.09.1994: Proceeding and plan Ex.B15/20.05.1991: Copy of explanation Ex.B16/28.09.1921: Explanation Ex.B17/20.09.1991: Explanation before Mandal Revenue office Ex.B18/20.04.1992: Explanation copy of the society submitted before the chairman VUDA Ex.B19/19.05.1992: Proceeding issued by Vice Chairman VUDA Ex.B20/26.06.2014: Letter issued by MRO office, Pendurthy to HPCL Ex.B21/10.10.2013: Proceedings Ex.B22/29.03.2013: Letter Ex.B23/13.02.2013: Original letter Ex.B24/26.11.1934: Certified copy of sale deed vide document no.2069/1934. Ex.B25/27.03.1928: Certified copy of registered sale deed vide document no.373/1928 Ex.B26/ 24.09.2018:Certified copy of rythu vari patta Ex.B27/26.11.2010: Certified copy of general power of attorney Ex.B28: Office copy of compliant before Hon’ble Special Judge, ACP cases at Visakhapatnam
OS.1800/2012, VI ASCJ, VSP
24
Ex.B29/22.11.2011: Copy of proceedings issued by Anti Corruption Bureau Ex.B30/24.11.2011: Copy of memo issued under RTI Act Ex.B31/22.07.2010: Certified copy of decree and Judgment in OS 73/2011 on The file of Junior Civil Judge Court, Bheemunipatnam Ex.B32: Certified copy of petition affidavit in IA 1091/2011 in OS 1500/2011 on the file of this court Ex.B33: Served copy of counter in writ petition 13551/2012 on the file of Hon’ble High Court at Hyderabad Ex.B34/06.03.2013: Order in writ petition 6512/2013 on the file of Hon’ble High Court at Hyderabad Ex.B35: Served copy of counter in writ petition 5227/2013 on the file of Hon’ble High Court at Hyderabad Ex.B36: Served copy of counter in writ petition 12585/2013 on the file of Hon’ble High Court at Hyderabad Ex.B37/25.03.2013: Letter addressed to the Tahsildar, Pendurthy mandal by Superintendent of Police, Visakhapatnam Ex.B38/05.02.2013: Letter addressed to Tahsildar, Pendurthy Mandal by Assistant Commissioner of Police, North sub-division, Visakhapatnam Ex.B39/18.02.2013:Letter addressed to the Commissioner of Police, North Sub-Division by Revenue Divisional Officer, Visakhapatnam Ex.B40/16.08.2012:Letter addressed to the Collector, Visakhapatnam by Tahsildar, Pendurthy dated 16.08.2012. Ex.B41/17.04.2012: Letter addressed to the Chief Planning Officer, VUDA, Visakhapatnam by Tahsildar Pendurthy Ex.B42/06.01.1993: Letter addressed to Vice-Chairman VUDA by MRO Pendurthy Ex.B43/19.03.1991: Letter addressed to Vice-Chairman Urban Development Authority Visakhapatnam by MRO, Pendurthy Ex.B44/02.05.2013: Certified copy of proceedings by Tahsildar Pendurthy to the District Collector, Visakhapatnam Ex.B45/19.07.2010: Letter issued by Public Information Officer along with letter Ex.B46/14.03.2013: Letter issued to the Joint Collector and Tahsildar Pendurthy Ex.B47/18.06.2013: Letter issued to Joint Collector by Tahsildar Pendurthy Ex.B48/17.12.2013: Original letter addressed by P.S.R Sastri by Tahsildar Pendurthy Ex.B49/26.07.2014: Office copy of letter addressed by D2 to the Revenue Divisional Officer, Visakhapatnam Ex.B50/04.01.2014: Office copy of letter addressed to Joint Collector, Visakhapatnam by D2 Ex.B51/03.07.2017: Original registered GPA executed by the legal heirs of Ayyala Somayajula Srirama Sharma in favour of D2 Ex.B52/24.05.2017: Endorsement issued by the Regional Deputy Director, Survey and Land Records dated 14.06.2016 along with copy of letter Ex.B53/12.09.2016: Endorsement addressed Special Deputy Director
OS.1800/2012, VI ASCJ, VSP
25
Ex.B54:24.09.2015: Endorsement issued by Public Information Officer along with letter dated 01.08.2015. Ex.B55/12.09.2016: Endorsement issued by Special Deputy Collector
dated 12.09.2016.
Ex.B56/18.04.2016: Office note submitted by Chief City Planner before the Commissioner GVMC Ex.B57/28.07.2014: Letter addressed to the Assitant Director, Survey and Land Records Visakhapatnam by Direct of Survey Settlement and Land Records Ex.B58/30.03.2017: Certified copy of report submitted by Tahsildar Pendurthy before RDO Ex.B59: Death certificate of Ayyala Somayajula Lakshmi Narasimha. Ex.B60/ 19.09.2012: Certified copy of rythuvari patta Ex.B61/13.02.2013: Letter addressed the Assistant Commissioner of Police by Tahsildar Pendurthy Ex.B62/25.02.2013: Certified copy of letter addressed to the Government Pleaders Visakhapatnam by Tahsildar Pendurthy Ex.B63/07.12.2011: Letter issued by Public Information Officer VUDA Ex.B64/29.03.2013: Letter addressed to the Superintendent of Police by Tahsildar Pendurthy Ex.B65/10.08.2013: Letter addressed to the Vice-President Hindustand Shipyard Staf Co-operative Building Society Limited, Visakhapatnam by Tahsildar Pendurthy Ex.B66/14.02.2013: Letter addressed the Revenue Divisional Officer Visakhapatnam by Assistant Commissioner of Police, North Sub-Division Visakhapatnam city Ex.B67: Certified copy of hukum order in IA 1091/2011 in OS 1500/2011 on the file of this court. Ex.B68/12.09.2013: Letter addressed to the Tahsildar Pendurthy by Deputy Superintendent of Police, ACB Visakhapatnam Ex.B69/27.08.1991: Certified copy of memo Ex.B70/1010.2013: Certified copy of letter addressed to the Deputy Superintendent of Police by Senior Assistant at Office of Pendurthy Ex.B71/06.07.2012: Letter addressed to the District Collector Visakhapatnam by the Assistant Director, Survey and Land Records Ex.B72/10.10.2013: Certified copy of endorsement issued by Deputy Tahsildar Pendurthy Ex.B73: Certified copy of counter affidavit filed in writ petition 12585/2013 before Hon’ble High Court of AP, Hyderabad.
VI ASCJ, VSP