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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: AMALAPURAM.
Present : Sri K.Ratna Kumar,
Principal Junior Civil Judge, Amalapuram
Thursday, the 20th day of April 2017
O.S.No.33/2012 and OS NO.136/2012
Between: (OS NO.33/2012)
Pachimala Satyanarayana...Plaintiff.
AND 1.Pachimala Janardhanarao 2.Pachimala Sampadarao 3.Pachimala Chalapathirao
4.Pachimala Someswararao...Defendants.
Between: (OS No.136/2012) 1.Pachimala Janardhanarao 2.Pachimala Sampadarao 3.Pachimala Chalapathirao
4.Pachimala Someswararao...Plaintiffs.
AND
Pachimala Satyanarayana...Defendant.
These suits are coming on 15.3.2017 for final hearing before me in the presence of Sri N.Ravi Prasad, Advocate for plaintiff in OS No.33/.2012 and for defendant in OS No.136/2012 and of Sri P.Radha Krishna, Advocate for defendants in OS No.33/2012 and for plaintiffs in OS No.136/2012 and having stood over for consideration till this day, this Court delivered the following:-
:: COMMON JUDGMENT::
OS NO.33/2012:
1.This suit is filed by the plaintiff for the relief of permanent injunction against the defendants with a prayer to restrain the defendants 1 to 4 and their men from ever interfering with his peaceful possession and enjoyment over item
No.1 and 2 of suit schedule property and for costs.
2.The brief facts of the plaint reads as under:-
The suit schedule property is shown as item No.1 and 2 and it is the ancestral property of plaintiff. Item No.1 of suit schedule property is the coconut garden and item No.2 of suit schedule property is house property, wherein the plaintiff and his family members are residing. The plaintiff has been in peaceful possession and enjoyment of the suit schedule property. Originally the suit schedule property belongs to the father of plaintiff by name Pachimala Pothayya and he purchased Ac.1.00 cents in RS No.493/12 under registered sale deed 2
dated 22.8.1981 from his vendor and he was in peaceful possession and
enjoyment of the same. Item No.1 of suit schedule property is part of it. The father of plaintiff is having five sons and four daughters and he performed the marriages of his sons and daughters. The defendants are own brothers of the plaintiff. All the brothers of the plaintiff who are the defendants constructed houses separately in the same village and living independently with their families. The sisters of the plaintiff are residing with their husbands after their marriages. The mother of the plaintiff died long back, thereafter the father of plaintiff lived with the plaintiff. Plaintiff and his wife looked after his old aged father and served him.
The father of plaintiff and plaintiff resided in the thatched house bearing D.No.2- 233 situated in Military colony in RS No.493/15 in an extent of Ac.0.07 cents which is item No.2 of suit schedule property. The plaintiff served his father with great love and affection. Out of love and affection against plaintiff, his father executed a registered gift-cum-settlement deed dated 24.3.2008 in respect of item No.1 and 2 of suit schedule property in a sound and disposing state of mind in favour of plaintiff reserving the life interest with him and vested remainder rights in favour of plaintiff. Father of plaintiff died on 29.12.2011 in the thatched house situated in item No.2 of suit schedule property. The plaintiff and his brothers performed the obsequies of his father pachimala Pothayya. After death of his father, the plaintiff is continuing in possession and enjoyment of the suit schedule property as he acquired absolute rights under gift-cum-settlement deed to the knowledge of one and all including the defendants. The defendants though aware of the execution and registered gift-cum-settlement deed dt.24.3.2008 by late Pachimala Pothayya in favour of plaintiff to knowledge of one and all in the village making false claim of partition of suit schedule property with a malafide intention to grab the suit schedule property. The defendants threatened the plaintiff that they will take forcible possession of the suit schedule property without having any manner of right. The suit schedule property is self acquired property of father of plaintiff and he gifted the same to the plaintiff under registered gift-cum-settlement deed dated 24.3.2008 and he became absolute owner of the suit schedule property after death 3 of his father and he is in possession and enjoyment of the same and he is unable to resist the illegal acts of the defendants without aid of this court. Hence the suit for the relief of permanent injunction.
3.On receipt of summons, 1st defendant filed written statement denying the allegations made in the plaint and the same was adopted by defendants 2 to 4.
1st defendant submitted that, plaintiff is not the absolute owner of item No.1 and 2 of suit schedule property, there is no dispute with regard to item No.2 of suit schedule property, item No.1 of suit schedule property is the joint family property and it is purchased by all the defendants and plaintiff with the joint family funds in the name of their father Pachimala Pothayya, all the defendants and the plaintiff are in joint possession of item No.1 of suit schedule property, their father Pothayya died on 29.12.2011, after death of their father, all the defendants demanded the plaintiff to affect partition of item No.1 of suit schedule property, the village elders also advised the plaintiff to allot shares to all the defendants, but the plaintiff did not heed their words, the plaintiff is claiming right over the suit schedule property under the guise of gift-cum-settlement deed dated 24.3.2008 which is a false document, all the defendants including the plaintiff are entitled for 1/5th share in the schedule property, the plaintiff is not entitled to the relief of permanent injunction since the defendants are co sharers in item No.1 of suit schedule property, all the defendants filed suit in OS NO.136/2012 for partition of item No.1 of suit schedule property and it is pending before this court, the plaintiff is not entitled for any relief as prayed for and prays to dismiss the suit.
4. Basing on the above pleadings, my learned predecessor in office framed the following issues for trial:-
1. Whether the plaintiff is entitled for an equitable relief of permanent injunction as prayed for?
2. To what relief?
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OS NO.136/2012:
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6.This suit is filed by the plaintiffs for partition of schedule property against the defendant with a prayer to pass preliminary decree for partition of suit schedule property into five equal shares by metes and bounds and to allot four shares to them and one such share to the defendant and for costs.
7. The brief facts of the plaint reads as under:-
The suit schedule property is the joint family property. Originally all the plaintiffs and defendant jointly purchased the suit schedule property with the joint family funds in the name of their father Pachimala Pothayya and they are in joint possession of the suit schedule property. Their father died on 29.12.2011, after death of their father, the plaintiffs demanded the defendant for partition of suit schedule property into five equal shares and to allot four such shares to them. The plaintiffs also placed the matter before elders and the elders advised the defendant to affect the partition of the suit schedule property into five equal shares, but the defendant did not heed their words. The defendant by creating gift-cum-settlement deed dated 24.3.2008 is claiming rights over the suit schedule property, the alleged gift-cum-settlement deed dated 24.3.2008 is not valid document and they are entitled for 1/5th share each in the suit schedule property and as the defendant refused to affect partition, they were constrained to file the present suit for partition seeking the partition of suit schedule property into five equal shares and to allot four such shares to the plaintiff and one such share to the defendant.
8.The defendant filed his written statement denying the allegations made in the plaint and submitted that, the suit schedule property is not joint family property, it was not purchased from out of the joint family funds, the plaintiffs are his own brothers, his father Pachimala Pothayya purchased Ac.1.00 cents of property in RS No.493/12 under registered sale deed dated 22.8.1981, the suit schedule property is the self acquired property of his father Pachimala Pothayya, during his life time, his father performed the marriages of plaintiffs and his sisters and all the plaintiffs were allotted Ac.0.07 cents each and they constructed their respective houses and living separately, his sisters are also living separately with 5 their husbands, his father lived with him during his last days and he died in the thatched house situated in an extent of Ac.0.07 cents, which is item No.2 of suit schedule property in OS NO.33/2012, his father during his life time in a sound and disposing state of mind executed gift-cum-settlement deed dated 24.3.2008 in his favour keeping the life interest with him and vested remainder interest in his favour, his father died on 29.12.2011, after death of his father, he continued his possession over the suit schedule property, the plaintiffs are well aware of the registered gift-cum-settlement deed dated 24.3.2008, inspite of that, the plaintiffs are claiming share in the suit schedule property and threatened him to dispossess from the suit schedule property, he is unable to resist the illegal acts of the plaintiffs and he filed suit in OS NO.33/2012 for the relief of permanent injunction, after filing of the said suit, the plaintiffs filed the present suit for the relief of partition with all false allegations, as the schedule property is self acquired property of his father and as his father executed gift-cum-settlement deed in his favour, the plaintiffs are not entitled for partition of suit schedule property into five equal shares and prays to dismiss the suit.
8. Basing on the above pleadings, my learned predecessor in office framed the following issues for trial:-
1. Whether the plaintiffs are entitled for a preliminary decree of partition of suit schedule property into five equal shares by metes and bounds and to allot four shares to the plaintiffs as prayed for?
2. To what relief?
9.During pendency of the suit, as per orders in IA No.245/2016 in OS
No.33/2012 dated 25.4.2016, the suit in OS No.33/2012 is clubbed with suit in OS
No.136/2012 and permitted to lead common evidence in OS No.136/2012 and to pronounce common judgment.
10.On behalf of plaintiffs, PW.1 to PW.3 were examined and Ex.A1 was marked. On behalf of defendant, DW.1 and DW.2 were examined and Ex.B1 to
Ex.B7 were marked.
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11.Heard arguments on both sides.
12.For the sake of convenience, the parties as arrayed in OS
No.136/2012 are discussed in the judgment.
13.ISSUE NO.1 IN OS NO.136/2012:
“Whether the plaintiffs are entitled for a preliminary decree of partition of suit schedule property into five equal shares by metes and bounds and to allot four shares to the plaintiffs as prayed for”?
It is the case of the plaintiffs that the suit schedule property is the joint family and ancestral property. Originally the suit schedule property was purchased by them along with the defendant with the joint family funds in the name of their father Pachimala Pothayya, they were in possession of the suit schedule property, their father died on 29.12.2011, after death of their father, they demanded the defendant for partition of the suit schedule property into five equal shares and to allot four such shares to them, they also placed the matter before village elders, the village elders advised the defendant to effect the partition of suit schedule property, but the defendant did not heed their words, hence they were constrained to file the present suit for partition, they are entitled for 1/5th share each in the suit schedule property. In support of their contention, 1st plaintiff was examined as PW.1 and he reiterated the contents of plaint. He filed one document which was marked as Ex.A1. Ex.A1 is death certificate of Pachimala Pothaya, (father of plaintiffs). In support of their contention, they also examined PW.2 and
PW.3 and they also supported his version during chief examination regarding nature of property.
14.It is the case of the defendant that, his father purchased Ac.1.00 cents in RS No.493/12 under registered sale deed dated 22.8.1981 and the suit schedule property is part and parcel of the same, the suit schedule property is the self acquired property of his father, his father during his life time performed the marriages of his brothers i.e., plaintiffs herein and all his sisters and all of them are residing separately in their own houses independently, during the last days of his father, he resided with him in the thatched house situated in Ac.0.07 cents in RS 7
No.493/15 which is item No.2 of schedule property in OS No.33/2012 and his father during his life time executed gift-cum-settlement deed dated 24.3.2008 in respect of the suit schedule property keeping life interest with him and vested remainder interest in his favour, his father died on 29.12.2011 and after death of his father, he became absolute owner of the suit schedule property by virtue of gift- cum-settlement deed dated 24.3.2008, since then he was in peaceful possession and enjoyment of the suit schedule property, the revenue authorities recognized his possession over the suit schedule property and issued pattadar pass book and title deed in respect of suit schedule property, his name was mutated in the concerned revenue records, the plaintiffs have no manner of right over the suit schedule property, in fact he filed suit in OS No.33/2012 for the relief of permanent injunction against the plaintiffs when they tried to interfere with his possession and after filing of the said suit, the plaintiffs came up with the present suit without having any manner of right, the suit schedule property was not joint family property and it was not purchased with the joint family funds as alleged by the plaintiffs and prays to dismiss the suit. In support of his contention, he himself was examined as DW.1 and he reiterated the contents of written statement. He filed seven documents, which were marked as Ex.B1 to Ex.B7. Ex.B1 is original registered gift-cum-settlement deed dated 24.3.2008 executed by Pachimala Pothayya in favour of defendant in respect of schedule property and also in respect of item
No.2 of schedule property in OS NO.33/2012. Ex.B2 is registered sale deed
dated 22.8.1981 executed in favour of Pachimala Pothayya in respect of schedule
property and other property. Ex.B3 is death certificate of Pachimala Pothayya issued by Secretary, Gram Panchayat, Komaragiripatnam. Ex.B4 is Xerox copy of ownership certificate issued by RDO, Amalapuram in respect of item No.2 of schedule property in OS NO.33/2012 (marked with consent of other side). Ex.B5 is possession certificate issued by VRO, Komaragiripatnam in favour of plaintiff.
Ex.B6 is pattadar pass book issued by Tahsildar, Allavaram in favour of plaintiff and Ex.B7 is computerized copy of adangal for fasli year 1425 obtained through
Mee-Seva. In support of his contention, he also examined one of the attestor of 8
Ex.B1 as DW.2 and he supported his version regarding the execution of Ex.B1 by
Pothayya.
15.The learned counsel for the plaintiffs contended that, since the suit schedule property is the joint family property and it is purchased from out of the joint family funds by the plaintiffs 1 to 4 and defendant in the name of their father, the plaintiffs are entitled for 1/5th share each in the suit schedule property and it is just and necessary to decree the suit in favour of plaintiff who are the share holders of the suit schedule property.
16.The learned counsel for the defendant contended that, the plaintiffs failed to place any evidence before this court to show that the suit schedule property is the joint family property and it was purchased with the joint family funds in the name of Pachimala Pothayya, the suit schedule property is the self acquired property of Pachimala Pothayya who purchased the same under Ex.B2,
Pachimala Pothayya executed Ex.B1 in favour of defendant in a sound and disposing state of mind, after his death, as per Ex.B1 the defendant became absolute owner of the suit schedule property and his name was mutated in the concerned revenue records, the plaintiffs were allotted lands by his father and they constructed their respective houses and they are not entitled to claim any share in the suit schedule property which is self acquired property of Pachimala Pothayya who executed Ex.B1 in favour of defendant.
17.On going through the rival contentions and on perusal of oral and documentary evidence available on record, it is the case of the plaintiffs that, the suit schedule property is the joint family property and it was purchased by them along with defendant with the joint family funds in the name of their father
Pachimala Pothayya and he died intestate, as such, they are entitled for 1/5th share each in the suit schedule property. In support of their contention, as many as three witnesses were examined and they exhibited Ex.A1. Ex.A1 is the death certificate of Pachimala Pothayya. Except Ex.A1, the plaintiffs did not file any piece of documentary evidence to show that the suit schedule property is the joint 9 family property and it was purchased with the joint family funds by them along with defendant in the name of their father Pachimala Pothayya. In fact, 1st plaintiff who was examined as PW.1 categorically admitted in his cross examination that, he did not file any revenue record pertaining to the schedule property before this court, one year after his marriage, he separately constructed a house in an extent of
Ac.0.07 cents and residing in it, plaintiffs 2 to 4 were also residing at different places in their respective separate houses, the extent of houses of plaintiffs 2 to 4 is Ac.0.07 cents each, it is true that the house sites where they are residing was given to Ex-Serviceman by the government, his father as an Ex-Service man got the above said sites from the government, all the daba houses of himself and plaintiffs 2 to 4 were situated in the above said sites, the defendant is residing in a thatched house in an extent of Ac.0.07 cents, the site in which the thatched house of defendant is situated is allotted to his father as Ex-Service man by the government, he does not know in which year his father died, he filed the present suit in respect of Ac.0.30 cents of land, he cannot say the survey number and the boundaries of the schedule property, the schedule property stands in the name of his father, they purchased the schedule property from Peri Kameswararao of
Ambajipeta village in the name of his father, he cannot say the year in which they purchased the schedule property, he did not file the sale deed before this court, he did not file any document to show that himself, plaintiffs 2 to 4 and his father jointly purchased the schedule property, he does not know whether Revenue authorities issued possession certificate in favour of defendant in respect of the schedule property and the house property, he did not submit any petition to
Revenue authorities claiming schedule property as joint family property after filing of suit in OS NO.33/2012 and prior to filing of the present suit, after filing of the suit in OS No.33/2012, he came to know about gift settlement deed dt.24.3.2008, there are no ancestral properties to their family members. The admissions of PW.1 during his cross examination clearly discloses that, the plaintiff did not file any document to show that the suit schedule property is the joint family property and it was purchased by them along with the defendant with the joint family funds in the 10 name of their father Pachimala Pothayya. In fact, the plaintiffs did not file any
Revenue record to show the nature of the property as alleged by them. PW.2 who was examined on behalf of plaintiff during his cross examination admitted that, he cannot say the survey number of the properties and the year in which
Pachimala Pothayya purchased the properties, he does not know the details of the present suit and suit in OS No.33/2012 and the reliefs sought in both the suits, he was not present at the time of purchase of properties by Pachimala Pothayya, he cannot say the extent and survey numbers of the properties mentioned in the documents of Pachimala Pothayya. The admissions of PW.2 clearly discloses that, he does not know the contents of present and suit in OS No.33/2012 and the reliefs sought in both the suits. It seems that, he does not know the extent and boundaries of the properties of Pachimala Pothayya. So, his evidence who does not know the details of the present suit and suit in OS No.33/2012 and the reliefs sought in both the suits and who cannot say the survey number and extent of properties is in no way helpful to the case of the plaintiffs to prove that the suit schedule property is the joint family property and it was purchased from out of the joint family funds in the name of their father Pachimala Pothayya. PW.3 also categorically admitted in his cross examination that, he cannot say the survey numbers of the property purchased by Pachimala Pothayya, he does not know at present whose name was mutated in concerned Revenue records in respect of schedule property, he did not see the documents of Pachimala Pothayya. The admissions of PW.3 clearly discloses that, he does not know the survey number and extent of suit schedule property and the properties purchased by Pachimala
Pothayya and according to him, Pachimala Pothayya executed a document allotting Ac.0.25 cents of property to 4th plaintiff, which clearly discloses that
Pachimala Pothayya during his life time allotted some properties to his sons, which is nothing but prior partition. So, the oral evidence of PW.3 without any documentary proof to show that the suit schedule property is the joint family property is in no way helpful to the case of the plaintiffs.
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18.On the other hand, the defendants by examining himself as DW.1 and attestor of Ex.B1 as DW.2 and by exhibiting Ex.B1 to Ex.B7 clearly establishes his case that the suit schedule property is the self acquired property of his father pachimala Pothayya who purchased the same under Ex.B2 and his father executed Ex.B1 gift-cum-settlement deed dated 24.3.2008 in his favour.
Ex.B5 is the possession certificate issued by VRO, Komaragiripatnam village in favour of defendant. However since the said possession certificate is issued by
VRO, there is no need to look into Ex.B5 as VRO is not competent to issue possession certificate. Ex.B6 is pattadar pass book issued by Tahsildar,
Allavaram in favour of defendant strengthens the case of the defendant that,
Revenue authorities by recognizing his possession over the suit schedule property issued pattadar pass book, which clearly discloses that the plaintiff is the owner of the suit schedule property. Ex.B7 is the computerized copy of adangal for fasli year 1425 obtained through Mee-Seva, which clearly discloses that the defendant is in possession of the suit schedule property. The defendant by exhibiting Ex.B1 to Ex.B7 more particularly, Ex.B1 to Ex.B3, Ex.B6 and Ex.B7 clearly establishes his case that the suit schedule property is the self acquired property of his father
Pachimala Pothayya, who executed a registered gift-cum-settlement deed dated 24.3.2008 his favour and after death of his father, his name was mutated in the concerned revenue records and he is in possession of the suit schedule property.
19.The present suit is filed by the plaintiffs seeking the relief of partition into five equal shares and to allot four such shares to them and one such share to the defendant, the burden always on the plaintiffs to prove that the suit schedule property is the joint family property and it is purchased by them from out of joint family funds in the name of their father, but the plaintiffs miserably failed in that regard. Except filing Ex.A1, which is nothing but death certificate of Pachimala
Pothayya, the plaintiffs did not place any documentary evidence before this court to show that the suit schedule property is the joint family property and it is purchased from out of the joint family funds in the name of their father Pachimala
Pothayya. No Revenue record is placed before this court by the plaintiffs. Except 12 the oral testimony of PW.1 to PW.3, there is nothing on record to come to conclusion that the suit schedule property is the joint family property and it is purchased in the name of their father Pachimala Pothayya from out of the joint family funds. So, in view of above facts and circumstances, this court has no other go except to conclude that the plaintiffs failed to prove that the suit schedule property is the joint family property, as such they are not entitled for partition of suit schedule property into five equal shares and to allot four such shares to them.
Accordingly the issue is answered against the plaintiffs and in favor of defendant.
20.ISSUE NO.1 IN OS NO.33/2012:
“Whether the plaintiff is entitled for an equitable relief of permanent injunction as prayed for”?
It is the case of the defendant in OS No.136/2012 that the suit schedule property originally belongs to his father and he executed registered gift- cum-settlement deed dated 24.3.2008 in his favour, after death of his father, he continued to be in possession and enjoyment of the schedule property, his name was mutated in the concerned Revenue records, the plaintiffs in OS NO.136/2012 without having any manner of right claiming partition and tried to interfere with his possession over the suit schedule property. In support of his contention, he himself was examined as DW.1 in OS NO.136/2012 as common evidence is being led in OS NO.136/2012 and he reiterated the contents of plaint in OS NO.33/2012 and he filed Ex.B1 to Ex.B7. Ex.B1 is original registered gift-cum-settlement deed
dated 24.3.2008 executed by Pachimala Pothayya in favour of defendant in
respect of schedule property and also in respect of item No.2 of schedule property in OS NO.33/2012. Ex.B2 is registered sale deed dated 22.8.1981 executed in favour of Pachimala Pothayya in respect of schedule property and other property.
Ex.B3 is death certificate of Pachimala Pothayya issued by Secretary, Gram
Panchayat, Komaragiripatnam. Ex.B4 is Xerox copy of ownership certificate issued by RDO, Amalapuram in respect of item No.2 of schedule property in OS
NO.33/2012 (marked with consent of other side). Ex.B5 is possession certificate issued by VRO, Komaragiripatnam in favour of plaintiff. Ex.B6 is pattadar pass 13 book issued by Tahsildar, Allavaram in favour of plaintiff and Ex.B7 is computerized copy of adangal for fasli year 1425 obtained through Mee-Seva. In support of his contention, he also examined one of the attestor of Ex.B1 as DW.2 and he supported his version regarding execution of Ex.B1 by late Pachimala
Pothayya. It is the case of the defendants in OS No.33/2012 that the item No.1 of schedule property is the joint family property and it is purchased from out of the joint family funds by them along with plaintiff in OS No.33/2012 in the name of their father Pachimala Pothayya, as such they are entitled for 1/5th share each in the schedule property and they are in joint possession of item No.1 of schedule property. In support of their contention, 1st plaintiff in OS No.136/2012 (1st defendant in OS No.33/2012) was examined as PW.1 and he reiterated the contents of plaint in OS No.136/2012. In support of their contention, they also examined PW.2 and PW.3 and they supported their version regarding the nature of the property. They mainly relied upon Ex.A1 which is nothing but death certificate of Pachimala Pothayya.
21.On going through the rival contentions and on perusal of oral and documentary evidence available on record, to prove the contention of plaintiff in
OS No.33/2012, he himself was examined as DW.1 and he exhibited Ex.B1 to
Ex.B7. Ex.B1 is original registered gift-cum-settlement deed dated 24.3.2008 executed by Pachimala Pothayya in his favour and Ex.B2 is registered sale deed
dated 22.8.1981 executed in favour of Pachimala Pothayya in respect of schedule
property and other property. Ex.B2 clearly discloses that father of plaintiffs and defendant in OS NO.33/2012 late Pachimala Pothayya purchased item No.1 of suit schedule property in OS No.33/2012 and it is the self acquired property of
Pachimala Pothayya. Ex.B1 clearly discloses that Pachimala Pothayya executed a registered gift-cum-settlement deed dated 24.3.2008 in favour of plaintiff in OS
NO.33/2012 in respect item No.1 and 2 of schedule property. Ex.B3 to Ex.B5 are death certificate of Pachimala Pothayya, ownership certificate issued by RDO,
Amalapuram and Possession certificate issued by VRO, Komaragiripatnam.
Ex.B6 and Ex.B7 are the crucial documents. Ex.B6 is pattadar pass book issued 14 in favour of plaintiff in OS No.33/2012 and Ex.B7 is computerized copy of adangal for fasli year 1425 obtained through Mee-Seva in respect of item No.1 of schedule property. Ex.B6 and Ex.B7 clearly discloses that the name of plaintiff in OS
No.33/2012 was mutated in the concerned Revenue records in respect of item
No.1 of suit schedule property. The plaintiff in OS No.33/2012 proved Ex.B1 by examining attestor of Ex.B1 as DW.2 and he categorically proved execution of
Ex.B1 in his favour. Though the defendants in OS No.33/2012 contended that, item No.1 of suit schedule property is the joint family property and they purchased the same from out of the joint family funds in the name of their father Pachimala
Pothayya, they did not place any documentary evidence before this court to show the same. In fact, the defendants in OS NO.33/2012 did not dispute with item
No.2 of suit schedule property. The dispute is only with regard to item No.1 of suit schedule property. The defendants in OS NO.33/2012 filed suit in OS
No.136/2012 for partition of schedule property into five equal shares alleging that the schedule property is the joint family property, but they miserably failed to prove that the suit schedule property is joint family property. The defendants in OS 33/2012 though examined PW.1 to PW.3 in OS NO.136/2012, PW.2 who was examined on their behalf categorically admitted the possession of plaintiff in OS
No.33/2012 over the schedule property. Pw.2 and PW.3 pleaded ignorance about the survey number of the schedule property and the extent of schedule property.
So, their oral evidence without any documentary evidence is in no way helpful to their case. The plaintiff in OS No.33/2012 by examining himself as DW.1 in OS
NO.136/2012 and by exhibiting Ex.B1 to Ex.B7 and by examining DW.2 categorically proved his case that item No.1 of schedule property is self acquired property of his father and by virtue of Ex.B1, he succeeded to the said property and he also categorically proved that, his name was mutated in concerned
Revenue records and he is in possession of the schedule property. His possession was also admitted by PW.2 in his cross examination. As plaintiff in
OS NO.33/2012 proved his possession over the schedule property by exhibiting
Ex.B1 to Ex.B7 and by examining DW.2 and as the defendants failed to prove that 15 the schedule property is the joint family property and failed to place any documentary evidence in that regard and as the defendants did not claim any right over item No.2 of suit schedule property and as they are claiming right over item
No.1 of suit schedule property by way of claiming partition of schedule property, definitely there is interference to the possession of plaintiff in OS No.33/2012 over item No.1 of suit schedule property. As the defendants in OS No.33/2012 did not claim any right over item No.2 of suit schedule property and claiming partition of item No.1 of suit schedule property and as they failed to prove that the suit schedule property is joint family property and taking into consideration of apprehension of the plaintiff that the defendants trying to interfere with his possession over item No.1 and 2 of suit schedule property, this court has no other go except to conclude that the possession of plaintiff in OS No.33/2012 should be protected by way of granting permanent injunction in his favour and this court is of the view that plaintiff proved his possession over the schedule property and interference to his possession by the defendants in OS No.33/2012 in respect of item No.1 and 2 of suit schedule properties, as such the plaintiff is entitled to the relief of permanent injunction as prayed for. Accordingly the issue is answered in favour of plaintiff in OS No.33/2012 and against the defendants in OS
NO.33/2012.
22.ISSUE NO.2 IN OS NO.136/2012: “To what relief”
In view of my findings in issue No.1 in OS No.136/2012, the plaintiffs in OS No.136/2012 are not entitled to the relief of partition as prayed for.
23.ISSUE NO.2 IN OS NO.33/2012: “To what relief”
In view of my findings in issue No.1 in OS No.33/2012, the plaintiff in OS No.33/2012 is entitled to the relief of permanent injunction as prayed for.
In the result, the suit in OS No.136/2012 is dismissed with costs.
In the suit, the suit in OS No.33/2012 is decreed with costs granting permanent injunction in favour of plaintiff and against the defendants 1 to 4 16 restraining the defendants 1 to 4 and their men from interfering with the possession and enjoyment of plaintiff over the suit schedule property.
Dictated to the personal assistant, transcribed by him, corrected and
pronounced by me in open court on this 20th day of April 2017
Sd/- K.Ratna Kumar.
PRL. JR. CIVIL JUDGE,
AMALAPURAM
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:
PW.1 : Pachimala Janardhanarao PW.2 : Pithala Anandaraju. PW.3 : Chevela Nageswararao.
FOR DEFENDNATs:
DW.1 :Pachimala Satyanarayana. DW.2 :Gutula Satyanarayana.
DOCUMENTS MARKED
FOR PLAINTIFFs:
Ex.A1: Death certificate of Panchimala Pothayya.
FOR DEFENDANT
Ex.B1: Original registered gift-cum-settlement deed dated 24.3.2008 executed by Pachimala Pothayya in favour of defendant in respect of schedule property and also in respect of item No.2 of schedule property in OS NO.33/2012. Ex.B2: Registered sale deed dated 22.8.1981 executed in favour of Pachimala Pothayya in respect of schedule property and other property. Ex.B3: Death certificate of Pachimala Pothayya issued by Secretary, Gram Panchayat, Komaragiripatnam. Ex.B4: Xerox copy of ownership certificate issued by RDO, Amalapuram in respect of item No.2 of schedule property in OS NO.33/2012 Ex.B5: Possession certificate issued by VRO, Komaragiripatnam in favour of plaintiff. Ex.B6: Pattadar pass book issued by Tahsildar, Allavaram in favour of plaintiff Ex.B7: Computerized copy of adangal for fasli year 1425 obtained through Mee-Seva
Sd/- K.Ratna Kumar
P.J.C.J.
//True copy//
Prl.Jr.Civil Judge, Amalapuram.