1O.S.134/2013/ IV AJCJC, VSP
IN THE COURT OF IV ADDITIONAL JUNIOR CIVIL JUDGE AT
VISAKHAPATNAM
PRESENT : Sri K.Pardha Saradhi Rao, V Addl. Junior Civil Judge, FAC- IV Addl. Junior Civil Judge, Visakhapatnam.
Thursday, this the 31st day of March, 2016.
O.S.134 /2013
Between:
Smt. Koppisetti Chilakamma, W/o Tatayya, Hindu, aged 48 years, residing at D.No.12-86, Lakshminagar, Gopalapatnam, 68th ward of GVMC, Visakhapatnam.
… Plaintiff
And
Sri Varaha Lakshmi Narasimha Swamy vari Devasthanam, rep. By its Executive Officer, Simhachalam, Visakhapatnam.
… Defendant
This suit is coming on this day i.e., 24-03-2016 for final hearing
before me in the presence of Sri R.Krishnam Raju, Advocate for plaintiff and
of Smt. N.V.R. Vijaya Lakshmi, Advocate for the defendant and upon perusing the plaint, written statement and other connected material papers on record and upon hearing the arguments of both sides, this Court delivered the following:
J U D G M E N T
1.This is a suit filed by the plaintiff against the defendant seeking to grant decree and Judgment for permanent injunction restraining the defendant from ever interfering with the plaintiff’s peaceful possession and enjoyment over the suit schedule property.
2.The averments made in the plaint in brief are as follows:
Plaintiff is the absolute owner of house property in an extent of 114 sq.
yards or 95.318 sq. mtrs. covered by D.No.14-239 and her family members acquired the schedule property form their ancestors and since then the plaintiffs and their forefathers have been in peaceful possession and enjoyment in the schedule property without any hindrance, disturbance, 2O.S.134/2013/ IV AJCJC, VSP interruption and interference from whom so ever and whatsoever in any manner from any corner and enjoying the schedule property as its full owners to the knowledge of each and every person in that locality including the defendant authorities as well as the Government authorities for the last several years and accordingly the plaintiff and their ancestors acquired and perfected their right, title, interest in the schedule property even by adverse possession. The House Tax passbook, Water Tax are in the name of plaintiff and she has been paying taxes to GVMC regularly. Originally schedule property from her ancestors, and having recognized the name of plaintiff, the
Municipal Corporation assessed the schedule property in the name of plaintiff and also obtained the electricity service connection and accordingly the plaintiff paying the electricity consuming charges of schedule property to electricity department.
3.The plaintiff further averred that subsequently the government issued
Election Identity Card in favour of son of plaintiff by name Koppisetti
Srinivasa Rao, indicating that the plaintiff and her family members have been in peaceful possession and enjoyment of schedule property and the plaintiff is the absolute owner of schedule property and to that effect recently on 21-02-2013 obtained a certificate of Encumbrance on property (E.C.,).
Since the residential tiled houses situated in the schedule property become old and damaged for which the plaintiff and her family members facing much inconvenience particularly in the rainy season and besides that the titled roof which was completely damaged the plaintiff and her family members apprehending danger to live under the said damaged roof, anticipating at any point of time that may be fallen to ground as such the plaintiff in order to construct a residential house in the place of the existing damaged titled house accordingly the plaintiff who is a law abiding citizen got prepared a house plan to that effect in an extent of 90 sq. yards by living 24 sq. yards of vacant land all around the said house and since the 3O.S.134/2013/ IV AJCJC, VSP construction portion in the schedule property in an extent of 90 sq. yards shown in plan is less than 100 sq. yards and on enquiries it was revealed no approval is required for the construction of house in an extent of 0.90 sq.
yards and accordingly the plaintiff started the construction in the schedule property by gathering all resources like cement, sand, bricks and iron etc.,
4.Plaintiff further averred that in order to construct the residential house as per the plan removed the existing titled house and laid foundation and raised pillars therein the schedule property and for the construction of residential house and while the plaintiff proceeding with the construction work surprisingly the defendant officials who are absolutely nothing to do with the schedule property appeared at the schedule property and threatened the plaintiff with dire consequences and attempted to demolish the structures made by plaintiff and further warned the plaintiff not to proceed with any construction activities otherwise they would demolish the existing structures for which out of shock and surprise plaintiff questioned the conduct of the defendant officials particularly with regard to their mis- behaviour and also the plaintiff and her family members appraised all the true and correct facts by showing the documents and particularly the situation of schedule property in S.No.1 of Gopalapatnam, but even then reasons best known the defendant officials most high handedly even without any curtsy towards the plaintiff being a lady raised their voice in such manner loudly towards the plaintiff but at the intervention of neighboring come once again to the schedule property and demolish the existing structures therein the schedule property and dispossess the plaintiff from the schedule property even by use of force as such since then the plaintiff facing imminent threat of invasion her legal right over the schedule property and apprehending danger of schedule property in the hands of defendant officials. In fact the schedule property is exclusively belongs to the plaintiff acquired from her forefathers and besides that the schedule property is 4O.S.134/2013/ IV AJCJC, VSP situated in S.No.1 of Gopalapatnam and documents filed by plaintiff clinchingly establishing that aspect and she is paying taxes to GVMC but reasons best known at the instance of some other persons who are enimic ally disposed off towards the plaintiff's family and who developed eye shore and jealousy against the plaintiff's family, the defendant officials making their hectic efforts some how to cause obstruction and accordingly visiting the schedule property very frequently and threatening the plaintiff with dire consequences.
5.Plaintiff further averred that on 23-02-2013 when the plaintiff as stated supra proceeding with the construction of residential house, surprisingly the defendant officials most high handedly appeared at the schedule property and attempted to cause obstruction to plaintiff to proceed further, out of surprise and shock the plaintiff questioned the conduct of defendant officials for which the defendant official threatened the plaintiff with dire consequences and also warned her not to make any construction in the schedule property, plaintiff being lady and innocent most humbly requested the defendant officials by showing document relating to schedule property evidencing their possession and enjoyment of schedule property for the last several years a stated supra but the defendant officials who bent upon an illegal and malafied intention at the influence of some other third party who are inimically disposes towards plaintiffs' family did not considered the request made by plaintiff and further attempted to demolish the structures situated in the scheduled property but for the timely intervention of neighboring people the defendant officials left the place with the open proclamation that they would come once again with in a day or two and certainly that they would not allow the plaintiff to proceed with the construction in the schedule property and as such since then the plaintiff is facing eminent threat of invasion of her legal rights over the schedule property and accordingly apprehending danger of schedule property in the 5O.S.134/2013/ IV AJCJC, VSP hands of defendant officials since the acts of defendant officials are so high handed illegal arbitrary and contrary to principles of natural justice and absolutely it is not possible on the part of plaintiff to resist the acts of defendant officials without aid and assistance of the Court. Hence, the suit.
6.Defendant filed an elaborated written statement denying the plaint averments and further averred that as could be seen from the documents filed by plaintiff except the tax pass book and electricity bills and receipts, no document has been filed into court to show the right and title of plaintiff over suit schedule property. Moreover, plaintiff did not disclose the alleged right from whom the schedule property devolved on her from her ancestors and whose name was recorded in the revenue records as pattadar to schedule property and if really the property belongs to ancestors of plaintiff, what prevented her from filing the documents relating to her ancestors. The property tax passbook shows that the taxes paid for the period 2011-3 and 4 on 30-04-2012 but no earlier tax receipts were paid into Court to show the alleged adverse possession of plaintiff over schedule property. In fact as could be seen from the electricity bill, the name of consumer was shown as
G.B.Raju but whereas the name of plaintiff - K.Chilakamma; as such it is be to explained by plaintiff that on what way the name of G.B.Raju was recorded as consumer to suit schedule property and the plaintiff has to explain the relationship between G.B.Raju and herself and there may be a doubt that whether the service connection belongs to suit schedule property or not and the documents filed by plaintiff does not confer the right, title over the suit schedule property. The schedule property belongs to defendant
S.V.L.N.Swamy Devasthanam and the plaintiff has not right, title or interest over the schedule property. The real facts are that the defendant devasthanam is having rights over the land measuring to an extent of
Ac.25.00 cents in R.S.No.1/1 part of Gopalapatnam Village, which was confirmed by the Commissioner of Survey Settlements and Land Records 6O.S.134/2013/ IV AJCJC, VSP vide orders in file No.B4/1257/79 dt.4-7-1980 by allowing the R.P. filed by devasthanam and the orders of Director of Settlements issued earlier was set aside and the defendant devasthanam is the absolute owner of S.No.275 of
Adivivaram hill, which is situated abutting to S.No.1/1 of Gopalapatnam and the land was previously known as mount kailas. Hence, the defendant devasthanam got ownership rights in an extent of Ac.25.00 cents in measuring to Ac.25.00 cents is yet to be made by the Assistant Director of
Survey and Land Records, the plaintiff unauthorisedly occupied the land in
S.No.1 of Gopalapatnam. While making preliminary inspection of suit schedule land the devasthanam surveyor observed that it is covered by
S.No.1/1 of Gopalapatnam.
7.The defendant further averred that the S.No.275 of Adivivaram belongs to Simhachalam Devasthanam is classified as green belt area in the Master
Plan of VUDA as such any construction on the said land or the abutting land covered by S.No.1/1 of Gopalapatnam is objectionable and there are interim orders issued in W.P.No.3184/2009, dt. 19-02-2009 not to grant any building permission to any individual seeking for building plan by GVMC,
Visakhapatnam pending disposal of W.P. The survey demarcation of
R.S.No.1/1 of Gopalapatnam is still pending before the Assistant Director,
Survey and Land Records, Visakhapatnam even though the R.P. was allowed by the C.C.L.A., Hyderabad long back. The matter is being pursued and hence the plaintiff herein is not entitled to make constructions without having any right over the property. defendant devasthanam has got vast extents of landed property endowed by erstwhile Maharajah of Vizianagarm.
People like plaintiff are attempting to encroach the land as the value of land in Visakhapatnam has increased abnormally. Therefore, the Devasthanam is maintaining land protection squads consisting of Devasthanam officials,
Special Deputy Collector and Home Guards, Security Guards. The squad is 7O.S.134/2013/ IV AJCJC, VSP going around the lands to protect them and in some places like Lakshmi
Nagar, Indira Nagar etc., guards are also posted to protect encroachments.
8. The defendant devasthanam officials further averred that the plaintiff under the guise of documents, trying to construct a building in the suit schedule property belongs to defendant devasthanam which will cause an irreparable loss to defendant devasthanam as after enforcement of
A.P.Endowments Act 30/87, according to Sections 75,76 and 80 of the
A.P.Charitable Hindu, Religious Institutions & Endowments Act, all the sales belonging to a charitable or religious institution is void without permission of
Commissioner, Endowments Department or Government. The suit schedule property belongs to defendant devasthanam and nobody has right to construct any building on the suit schedule property and if the Court grants any injunction, it will cause loss and hardship to the defendant devasthanam and finally prayed to dismiss the suit with costs.
9.Basing on the above pleadings the following issues have been settled for trial.
1. Whether the plaintiff is entitled for permanent injunction as prayed for?
2. Whether this Court has territorial Jurisdiction to entertain the suit or not?
3. To what relief?
10.To prove the suit claim, the plaintiff herself examined as PW1 and also examined PW2 and PW3 and got marked Exs.A1 to A5 and to disprove the suit claim of plaintiff, the defendant devasthanam examined as Dws.1 and 2 and Exs.B1 to B7 are marked.
11.Issues No.1&2:Learned counsel for plaintiff very vehemently argued that the evidence of PW1 to 3 coupled with documentary evidence and
Exs.A1 to A5 clearly and cogently proved the prima facie possession of the plaintiff and also balance of convenience is in favour of plaintiff and if at all 8O.S.134/2013/ IV AJCJC, VSP the defendant is not injuncted, she would also sustain irreparable loss and
PW1 herself confined her evidence with that of her plaint averments and her evidence is quite corroborated by the evidence of Pws.2 and 3 coupled with documentary evidence.
12.Plaintiff counsel further argued that he is absolute owner of house property in an extent of 114 sq. yards or 95.318 sq. mtrs. covered by D.No.
14-239 and her family members acquired the schedule property form their ancestors and since then the plaintiffs and their forefathers have been in peaceful possession and enjoyment in the schedule property without any hindrance, disturbance, interruption and interference from whom so ever and whatsoever in any manner from any corner and enjoying the schedule property as its full owners to the knowledge of each and every person in that locality including the defendant authorities as well as the Government authorities for the last several years and accordingly the plaintiff and their ancestors acquired and perfected their right, title, interest in the schedule property even by adverse possession. The House Tax passbook, Water Tax are in the name of plaintiff and she has been paying taxes to GVMC regularly. Originally schedule property from her ancestors, and having recognized the name of plaintiff, the Municipal Corporation assessed the schedule property in the name of plaintiff and also obtained the electricity service connection and accordingly the plaintiff paying the electricity consuming charges of schedule property to electricity department.
13.The plaintiff counsel further argued that subsequently the government issued Election Identity Card in favour of son of plaintiff by name Koppisetti
Srinivasa Rao, indicating that the plaintiff and her family members have been in peaceful possession and enjoyment of schedule property and the plaintiff is the absolute owner of schedule property and to that effect recently on 21-02-2013 obtained a certificate of Encumbrance on property (E.C.,).
Since the residential tiled houses situated in the schedule property become 9O.S.134/2013/ IV AJCJC, VSP old and damaged for which the plaintiff and her family members facing much inconvenience particularly in the rainy season and besides that the titled roof which was completely damaged the plaintiff and her family members apprehending danger to live under the said damaged roof, anticipating at any point of time that may be fallen to ground as such the plaintiff in order to construct a residential house in the place of the existing damaged titled house accordingly the plaintiff who is a law abiding citizen got prepared a house plan to that effect in an extent of 90 sq. yards by living 24 sq. yards of vacant land all around the said house and since the construction portion in the schedule property in an extent of 90 sq. yards shown in plan is less than 100 sq. yards and on enquiries it was revealed no approval is required for the construction of house in an extent of 0.90 sq.
yards and accordingly the plaintiff started the construction in the schedule property by gathering all resources like cement, sand, bricks and iron etc.,
14.Plaintiff counsel further argued that in order to construct the residential house as per the plan removed the existing titled house and laid foundation and raised pillars therein the schedule property and for the construction of residential house and while the plaintiff proceeding with the construction work surprisingly the defendant officials who are absolutely nothing to do with the schedule property appeared at the schedule property and threatened the plaintiff with dire consequences and attempted to demolish the structures made by plaintiff and further warned the plaintiff not to proceed with any construction activities otherwise they would demolish the existing structures for which out of shock and surprise plaintiff questioned the conduct of the defendant officials particularly with regard to their mis-behaviour and also the plaintiff and her family members appraised all the true and correct facts by showing the documents and particularly the situation of schedule property in S.No.1 of Gopalapatnam, but even then reasons best known the defendant officials most high handedly even without 10O.S.134/2013/ IV AJCJC, VSP any curtsy towards the plaintiff being a lady raised their voice in such manner loudly towards the plaintiff but at the intervention of neighboring come once again to the schedule property and demolish the existing structures therein the schedule property and dispossess the plaintiff from the schedule property even by use of force as such since then the plaintiff facing imminent threat of invasion her legal right over the schedule property and apprehending danger of schedule property in the hands of defendant officials. In fact the schedule property is exclusively belongs to the plaintiff acquired from her forefathers and besides that the schedule property is situated in S.No.1 of Gopalapatnam and documents filed by plaintiff clinchingly establishing that aspect and she is paying taxes to GVMC but reasons best known at the instance of some other persons, who are enimically disposed off towards the plaintiff's family and who developed eye shore and jealousy against the plaintiff's family, the defendant officials making their hectic efforts some how to cause obstruction and accordingly visiting the schedule property very frequently and threatening the plaintiff with dire consequences. Plaintiff further argued that on 23-02-2013 when the plaintiff as stated supra proceeding with the construction of residential house, surprisingly the defendant officials most high handedly appeared at the schedule property and attempted to cause obstruction to plaintiff to proceed further, out of surprise and shock the plaintiff questioned the conduct of defendant officials for which the defendant official threatened the plaintiff with dire consequences and also warned her not to make any construction in the schedule property, plaintiff being lady and innocent most humbly requested the defendant officials by showing document relating to schedule property evidencing their possession and enjoyment of schedule property for the last several years a stated supra but the defendant officials who bent upon an illegal and malafied intention at the influence of some other third party who are inimically disposes towards plaintiffs' family did 11O.S.134/2013/ IV AJCJC, VSP not considered the request made by plaintiff and further attempted to demolish the structures situated in the scheduled property but for the timely intervention of neighboring people the defendant officials left the place with the open proclamation that they would come once again with in a day or two and certainly that they would not allow the plaintiff to proceed with the construction in the schedule property and as such since then the plaintiff is facing eminent threat of invasion of her legal rights over the schedule property and accordingly apprehending danger of schedule property in the hands of defendant officials since the acts of defendant officials are so high handed and illegal.
15.Now this Court is inclined to first of all scrutinize the evidence let in by either side. PW1 confined her chief affidavit with that of plaint averments in a quite verbatim manner but, during the course of cross-examination, PW1 categorically admitted that there are title deeds to suit property, but they are damaged and rusted and she did not secure certified copie4s of title deeds.
PW1 denied that they had no title deeds for the suit property and she admitted that PW1 did not mention in her plaint that her title deeds are damaged and rusted and the suit property is in the name of her maternal grand father and her grand father name is Gollapalli Raju and his name is not mentioned in the plaint. PW1 does not know whether the suit property belongs to defendant devasthanam and her maternal grand father occupied the same or not and since her maternal grand father occupied the devasthanam lands, he had no title deeds to the suit property. The
Simhachalam mountain is not visible from her mountain slope. PW1 adds that it is not "Kondavalu Area" and her house is equal level to Gopalapatnam
Bus Stop. PW1 denied as she is deposing false for purpose of the suit though they occupied the defendant devasthanam property. PW1 admitted
Ex.A5 does not disclose either her name or the name of her maternal grand father and she further denied Ex.A5 does not belong to suit schedule 12O.S.134/2013/ IV AJCJC, VSP property. She admitted Ex.A3 the name of G.B.Raju is her maternal grand father and he died about 15 or 20 years back. PW1 admitted that Ex.A3 electricity bills pertaining to the year 2008, 2011 and 2012 and she does not know there is an electricity facility to that area, about 20 years back. She further denied that Ex.A3- bills does not belong to her house i.e. suit schedule property.
16.PW1 admitted Ex.A2 - property tax receipts belongs to the year 2008 onwards. She denied that they are residing the suit property since 2008 unauthorizedly and that it is not her ancestral property and that she is deposing false. She does not know whether their house plan is not approved by GVMC since they have no title deeds for her house property. PW1 denied that they got constructed ground floor and 1st floor in the entire 114 sq.
yards and she further adds that they got constructed the house in 90 sq.
yards, as two portions in ground floor and two portions in 1st floor and she does not know whether there are no title deeds to the residents of Lakshmi
Nagar area and that some are paying Cists to Devasthanam. She know that when any construction is going on the defendant devasthanam people came and caused obstruction for the construction work. PW1 admits that the defendant people came and cause obstruction while they are going to construction of building in their schedule property and she doe snot know whether S.No.1/1 is adjacent to S.No.275. PW1 voluntarily admits that schedule property is situated in S.No.1/1 and she did not go through the contents of written statement and they did not get survey the suit property and she denied that even till today they have no right in the schedule land and that they got construction the suit house by obtaining injunction from the Court with out any right in it.
17.To support the version of PW1, PW2 was examined whose chief affidavit is quite verbatim as that of plaint averments, but during the course of cross-examination PW2 categorically admitted that since his mother is 13O.S.134/2013/ IV AJCJC, VSP illiterate and she is not able to give proper evidence, he is giving evidence.
PW2 admitted that the evidence affidavit of his mother and mine is one and the same and himself, his mother, his wife and his children are residing in the suit schedule house and presently there is no documents regarding the title of suit schedule property. PW2 adds that the title deeds are damaged when the house is collapsed. PW2 does not know if the document is lost they can obtain certified copy of document from the Sub-register office. PW2 admits that his younger brother obtained Ex.A5 from the register office and the name of the mother or his grandfather is not shown in Ex.A5 -
Encumbrance Certificate. PW2 further denied that they did not file any document to prove the title of his mother or his grand father is not shown in
Ex.A5. PW2 further denied that defendant officials used to obstruct when ever there is construction in their locality and the guards of defendant devasthanam came to suit schedule property two times or three times on the complaints, against them by way of phone. Petitioner cannot say the name of those people who made phone complaint to defendant and Devasthanam people never came when there is unauthorized constructions also and he adds that the GVMC people came and causing obstructions for unauthorized constructions. PW2 admitted that the GVMC people did not cause obstruction for their house, since they obtained plan for construction of their house.
18.PW2 denied that GVMC authorities did not approve their building plan and even though their building plan is not approved they managed the
GVMC people and got constructed the suit building unauthorizedly. PW2 denied that their house is situated in hills slope and he adds that their house is 1½ Kilo meter away from the hill and their house is in higher level from the Gopalapatnam main road. PW2 informed to his counsel that titled deeds of their house are destroyed when their house is collapsed. The contents of his evidence affidavit are not read over to him in Telugu, so he 14O.S.134/2013/ IV AJCJC, VSP cannot say whether said fact is not mentioned is his evidence or not. He did not file any document to show that the property belongs to his great grandfather. PW2 also admits that the suit property is located in S.No. 1/1 which is adjacent to S.No. 275. PW2 adds that suit property is located in
S.No.1. PW2 denied that knowing that the lands in S.No. 1/1 and S.No. 275 are belongs to defendant Devastanam, he has deposed false that schedule is in S.No.1. PW2 denied that the suit property is belongs to Devastanam, and that himself, his mother and grandfather are residing that property unauthorizedly, and that the Devastanam people caused the obstruction at the time of construction they filed this false suit. PW2 admits that since the suit land belongs to defendant devastanam, his building plan is not approved. PW2 denied that they have no right to suit property and that they obtained injunction orders from the Court and completed the construciton, when the defendant officials obstructed construction of the building and that this suit is not maintainable and that they have to file a suit for declaration.
19. Plaintiff examined one Katta Pentayya as PW3 on his behalf. His chief affidavit is quite verbatim with that of PW1's chief affidavit. He received summons from Court to depose today and his counsel brought summons to him. PW3 admitted that he constructed PW1's house as mason. PW3 denied that schedule property is sitate adjacent to hill slope and he did not witness the title deed stands in the name of PW1. PW3 admitted nobody in the locality were schedule property situate does have any kind of deeds much less title deeds including plaintiff and most of the people in that locality including schedule property by PW1 and the defendant devasthanam never objected them and directed them to vacate their built houses except on the occassions of commencing constructions of houses. PW3 denied that PW1 constructed her house without plan, duly approved by GVMC and he has witnessed said plan and PW1's plan is not an approved plan and survey
No.275 which is situate quite adjacent to survey No.1/1 belong to demand 15O.S.134/2013/ IV AJCJC, VSP draft. PW3 admitted that his chief affidavit is silent with regard to making mention of visit of devasthanam officials on the complaint made by neighbors of PW1 and he denied that as PW1 made construction unauthorizedly the devasthanam officials obstructed PW1 and others for such unauthorised constructions and he has signed his chief affidavit in the month of February, 2013 and as he has worked as mason for PW1 house, he has acquaintance with PW1. PW3 further denied that he is deposing false evidence at the instance of PW1 though he has completely unaware about suit facts, and that PW1 made construction under the guise of interim injunction order.
20. Defendant devasthanam examined its Superintendent as DW1 and his chief affidavit is replica to that of written statement and marked Exs.B1 to B5. During the course of cross-examinaiton DW1 deposed that as per the instructions given by E.O., written statement was filed into Court, by the time of filing written statement as well as counters, Ex.B5 is not in existence and he denied Ex.B5 was invented for the purpose of adducing evidence only and basing upon Ex.B5 their defence through their written statement to present suit is not maintainable. He has verified the schedule property physically, which consists of two storeyed residential building in which plaintiffs and their family members are residing, having electricity and water connection and there were pucca residential houses in and around schedule property.
21.DW1 denied that schedule property is surrounded by apartments and group houses. There was existence of cement road towards Western side of schedule property, through out the street and he does not know as to whether GVMC or Panchayat laid that cement road. Though they got surveyed the schedule property by their surveyor, they did not file his report into Court, he denied that they did not got survey the property, they are unable to file surveyor's report into Court. The schedule property is situate 16O.S.134/2013/ IV AJCJC, VSP in Survey No. 275, but not in Survey No.1/1 as mentioned in their written statement. He admits that though the scheudle property is situate in Survey
No. 275, but not in survey No.1. DW1 chief affidavit is also silent with regard to that aspect and denied that though the schedule property is situate in survey No.1/1, they have been wrongly stated that it was situate in survey No.275, with a view to deprive plaintiff. DW1 admits that survey
No.1 of Gopalapatnam does not pertain defendant.
22.DW1 adds that the subdivisions in Survey No.1 were allotted to defendant and he cannot say the exact measurements, boundaries and extent of each subdivision in Survey No.1 and he know subdivision in survey
No.1/1 consists of 25 acres, but he cannot say boundaries for it since it is so far not demarcated. DW1 denied that they have no basis for concluding that survey No.1/1 consists of 25 acres on the ground that there was demarcation. DW1 admits that he cannot say the exact survey number in which the schedule property is situate. He know the contents in Ex.B1 and they did nto file the G.O. copy in G.O.No.1643 dated 26-10-1999, which was referred in Ex.B1 and he cannot said the contents there it. Except Ex.B1, they did not file any documentary proof to show that 5279.57 acres are vested with their temple and Ex.B1 is silent with regard to survey numbers in which 5279.57 acres are situate, MRO, Pendurthy issued patta in the year 1996 in favour of their temple and no patta was granted by MRO,
Chinagadili.
23.DW1 admits the properties situate within Simhachalam are come under the purview of Chinagadili Mandal which is familiarly known as
Visakhapatnm rural Mandal and basing on the said patta, regularisation
G.O.578 was emanated and according to his knokwledge, some part of patta that was issued to their temple was cancelled and in that regard some litigation is pending consideration before Hon'ble Supreme Court, but he cannot said as to which lands covered within the cancelled portion of patta 17O.S.134/2013/ IV AJCJC, VSP and their survey numbers. DW1 denied that though the entire patta was cancelled and is deposing falsely as if some part of patta was cancelled.
24.DW1 denied that as the entire patta was cancelled, their temple has no right to claim over any property incluindg property covered under Ex.B1 and that Ex.B2 remained to be useless for proving their case, as their survey has already detected the survey No.275 instead of survey No.1/1 and they have filed Ex.B3 as their patta does not covered the survey No.275 and no right was accrued through Ex.B3 in respect of schedule property since it is situate in survey No.1 of Gopalapatnam.
25.DW1 admitted that Ex.B4 order is only granting of interim relief, as the main Writ petition 3184/2009 is still pending and they did not file any documetn to show that the said Writ petition is still pending. He denied that they did not made any contest with regard to pendency of the said Writ petition and that Ex.B4 is useless for proving of case as it relates to Survey
No.1 of Gopalapatnam and that the schedule property is private land belong to ancestors of plaitniff and the temple has nothing to do with it. DW1 further denied that by which of acquisition of schedule property by plaintiff through her ancestors and enjoying the same since their ancestors with absolute rights till as of date and the documents so filed by plaitniff established her right. DW1 does not know as to whether G.B.Raju might have been one of the ancestor of plaintiff in whose name electricity bill stands issued and no notices were issued to plaintiff by their temple much prior to filing of the present suit.
26.DW1 further denied that they have been contesting the present suit with false pleas and at the instance of 3rd parties, who are inimical towards plaintiff and the paras 5 to 10 of his chief affidavit are invented for the purpose of attacking the suit, on the ground that they have already mentioned the schedule property is situate in Survey No.275, but not in 18O.S.134/2013/ IV AJCJC, VSP
Survey No.1 and that this Court has jurisdiction to try the suit as the property is situate within the limits of Gopalapatnam and that they have no right over the schedule proprty, basing on their documents and the plaintiff alone is having absolute rights over schedule property, basing on her documents and they have only contesting the suit with a view to harass plaintiff and hence plaintiff is entitled to get the relief of injunction against them.
27.Defendant devasthanam examined its Surveyor as DW2 on their behalf. His chief affidavit discloses that as per the instructions of the officials of the Sri Varaha Lakshmi Narasimha Swamyvari Devasthanam, he had conducted survey of the suit schedule property, which is situated at
Lakshminagar, Gopalapatnam Area, Visakhapatnam and as per the survey conducted by him, the suit schedule property is falling under survey
No.275/P of Adivivaram village and he had prepared encroachmement location map and submitted the survey report to the Devasthanam along with photos of schedule property and Exs.B6 and B7 are marked through him.
28.During the course of cross-examination DW2 admitted that he has been workign as Surveyor since 2008 and he has qualified ITI draughts man
Civil and he has visited schedule property consisting of ground and 1st floor in which PW1 and only aware as to survey work only, but he is not aware as to his chief affidavit contents. Though he was given written direction to survey schedule property and found where it is located he did not file it into
Court. DW2 and Jagannadham, Superintendent visited schedule property for surveying and he does not know exact time of their visit but it is on 4-3- 2014 . Ex.B6 - report signed by Superintendent. DW2 admitted that no notice was issued to PW1 intimating their conducting Survey. DW2 did not invite PW1 to attend before them, while they have been surveying schedule property and they did not obtain neighbours signatures including PW1 to 19O.S.134/2013/ IV AJCJC, VSP prove that they have conducted survey their conduct of survey is subsequent to filing of suit so also written statement. In their written statement, they have mentioned that the schedule property is situate in survey No.275, but not in survey No.1/1 and their Devasthanam gave some land to GVMC for greenbelt.
29.DW2 further denied that the schedule property is situate in Survey
No.1 of gopalapatnam, but not in Survey No.275 or 1/1 as stated in their written statement and evidence affidavit and that they have created Ex.B6 for this suit purpose and that they did not conduct any survey as stated by them and that he is deposing falsely being Devasthanam employee for depriving plaintiff's rightful ownership and hence his evidence is not valid.
30.The possession of the plaintiff is not disputed by defendant any where in the evidence let in by defendant further more DW1 very clearly admits those sub-divisions in survey No.1 were done. He cannot say as to exact measurements and boundaries and extent of each sub-division in Survey
No.1. DW1 though knows sub-division of Survey No.1/1 consisting of 25
Acres, he cannot say its boundaries on the ground that so far it was not demarcation. DW1 further admits that he cannot say as to the exact survey number in which schedule property situated and though DW1 know contents in Ex.B1 and they did not choose to file G.O. copy in G.O.Ms.No.
1643 dated 26-10-1999 , which G.O. was referred to in Ex.B1 and he cannot say its contents. Further DW1 admits that they did not file any documentary proof except Ex.B1 to prove that 5279.57 Acres are vested with the temple and Ex.B1 is silent with regard to survey numbers in which such extent is situated and MRO Pendurthi issued patta in the year 1996 in favour of temple, but no patta was granted by MRO, Chinagadili, though
DW1 admits that devasthanam properties are situated within Chinagadili
Mandal, which is similarly known as Visakhapatnam Rural Mandal and basing on the patta registration, regularisation through G.O.Ms.No.578 was 20O.S.134/2013/ IV AJCJC, VSP amended and according to DW1's knowledge some part of patta that was issued to the temple was cancelled and in that regard some litigation is pending before Hon'ble Supreme Court, but he cannot say as to which lands covered within the cancelled portion of the patta and their survey numbers.
This part of evidence of DW1 clearly helpful to plaintiff's case run the defendant's case. DW2 also admits that he has visited schedule property consisting of ground and first floor in which PW1 was residing, but he does not know PW1's chief affidavit contents and DW2 clearly admits that know notice was issued to PW1 duly intimating their conducting survey number and DW2 did not invite to PW1 to attend before them, while they were in the job of surveying schedule property and they did not obtain neighbours signature including PW1 to prove that they have conducted survey and their conduct of survey is subsequent to the filing of the suit. The evidence of
PWs. 1 to 3 coupled with documentary evidence adduced by plaintiff clearly proves prima facie possession of the plaintiff over schedule property and balance of convenience is also stands in favour of plaintiff which was proved through both oral and documentary evidence adduced by plaintiff and if the defendant is not injunction the plaintiff would also sustain irreparable loss and thus the plaintiff has established three cardinal principles prima facie, balance of convenience and irreparable loss for obtaining equitable relief of injunction.
31.This Court upon thorough perusal of evidence let in by either side, came to the conclusion that the evidence let in by the plaintiff clearly proved prima facie possession and enjoyment of the plaintiff over the plaint schedule property in the presence of uncorroborated testimony of Dws 1 and 2 evidence which is not rebutted the plaintiff's oral and documentary evidence.
32.Issue No.1 is answered accordinly in favour of plaintiff and against the defendant holding that the plaintiff is certainly entitled for injunction but 21O.S.134/2013/ IV AJCJC, VSP this Court is inclined to grant decree of permanent injunction restraining defendant from ever interfering with the plaintiff's peaceful possession and enjoyment over plaint schedule property except by following due process of law.
33.Issue No.2:IN THE RESULT, the suit is decreed without costs, granting decree of permanent injunction restraining the defendant devasthanam from ever interfering with the plaintiff’s peaceful possession and enjoyment over plaint schedule property, except by following due process of law.
Dictated to the Stenographer and transcribed her, corrected and pronounced by me in the
open Court, this the 31st day of March, 2016.
V ADDL. JUNIOR CIVIL JUDGE,
FAC - IV ADDL. JUNIOR CIVIL JUDGE,
VISAKHAPATNAM.
APPENDIX OF EVIDENCE
For Plaintiff:
Pw.1 : K.Chilakamma Dt. 05-05-2014
Pw.2: K.Srinivasa rao dt 17-7-2014
Pw.3: K. Pentayya dt 12-8-2014
For Defendants:
Dw.1: T.Jagannadham dt 22-1-2015
Dw.2: G.Ganapathi dt 6-2-2015.
EXHIBITS MARKED
For Plaintiff:
Ex.A1: Tax pass book issued by GVMC.
Ex.A2: Bunch of House tax & water tax receipts
Ex.A3: Bunch of Electricity bills and receipts.
Ex.A4: Proposed House plan
Ex.A5: Encumbrance certificate.
22O.S.134/2013/ IV AJCJC, VSP
For Defendants:
Ex.B1: Attested copy of the GOMs NO. 406 Rev (funds-IV dept.dt 20-6-2000.
Ex.B2: Attested copy of the commissioner of survey lands and land record in Rc No. B1 1257/79 dt 4-7-1980.
Ex.B3: Order in W.P,NO. 32 8000/97 dt 28-9-2000
Ex.B4: Order in W.P. No. 3184 /09 dt 19-02-2000
Ex.B5: Authorization letter dt 21-9-14 in the name of Pw1
Ex.B6: Survey report and location map prepared by me.
Ex.B7: Authorized letter.
V AJCJ, VSP.
FAC- IV AJCJ, VSP.
23O.S.134/2013/ IV AJCJC, VSP
IN THE COURT OF IV ADDITIONAL JUNIOR CIVIL JUDGE AT
VISAKHAPATNAM
PRESENT : Sri K.Pardha Saradhi Rao, V Addl. Junior Civil Judge, FAC- IV Addl. Junior Civil Judge, Visakhapatnam.
Thursday, this the 31st day of March, 2016.
O.S.134 /2013
Between:
Smt. Koppisetti Chilakamma, W/o Tatayya, Hindu, aged 48 years, residing at D.No.12-86, Lakshminagar, Gopalapatnam, 68th ward of GVMC, Visakhapatnam.
… Plaintiff
And
Sri Varaha Lakshmi Narasimha Swamy vari Devasthanam, rep. By its Executive Officer, Simhachalam, Visakhapatnam.
… Defendant
This is a suit filed by the plaintiff against the defendant seeking to grant decree and Judgment for permanent injunction restraining the defendant from ever interfering with the plaintiff’s peaceful possession and enjoyment over the suit schedule property.
Value of the suit for the purpose of court fee and jurisdiction is
Rs.10,000-00 and a court fee of Rs.786-00 is paid under section 26(c) of
A.P.C.F. and S.V. Act .
This suit is coming on this day i.e., 24-03-2016 for final hearing
before me in the presence of Sri R.Krishnam Raju, Advocate for plaintiff and
of Sri N.V.R. Vijaya Lakshmi, Advocate for the defendant and upon perusing the plaint, written statement and other connected material papers on record and upon hearing the arguments of both sides, this court doth order and;
DECREE
1. that the suit be and the same is hereby decreed :
2. that the suit is here by granting permanent injunction restraining the defendant devasthanam from ever interfering with the plaintiff’s peaceful possession and enjoyment over plaint schedule property, except by following due process of law.
24O.S.134/2013/ IV AJCJC, VSP
3. that there be no order as to costs.
(The plaint Schedule is attached in this decree)
Given under my hand and seal of this Court, this the 31st day of March, 2016.
V Additional Junior Civil Judge,
(FAC) RENT CONTROLLER-CUM- IV A.J.C.J.,
VISAKHAPATNAM.
MEMORANDUM OF COSTS.
For the Plaintiff. For the Defendant
Stamp on vakalatRs.2-00Stamp on vakalat Rs. 2-00
Stamp on plaintRs.1102-00Stamp on plaint Rs. 5-00
Process feeRs. 78-00 Advocate fee Rs. 1000-00
Sr.Advocate feeRs. 3000-00 Typing charges Rs. 100-00 Jr.Advocate fee Rs.1000-00 ======== Typing Charges Rs. 100-00 Costs certified Rs.3107-00 ------------------- Costs certified Rs.4908-00
V Additional Junior Civil Judge,
(FAC) RENT CONTROLLER-CUM- IV A.J.C.J.,
VISAKHAPATNAM.
25O.S.134/2013/ IV AJCJC, VSP