O.S.No.184/2009
IN THE COURT OF THE JUNIOR CIVIL JUDGE, SALUR.
Present: Kum.K.Sailaja, Junior Civil Judge, Salur.
Thursday , this the 16th day of August, 2018.
O.S.NO.184 OF 2009
Between:
1) Vikram Chandra Sanyasi Raju, S/o late L.N.Sanyasi Raju, aged 52 years, Hill Zamindar of Salur, R/o Kota Veedhi, Salur, Vizianagaram District.
2) P.B.Srinivas, S/o late R.J.Sanyasi Raju, aged 49 years, R/o D.No.1-4-30, Makkuva Road, Salur, Vizianagaram District.
...Plaintiffs.
And: Smt. Niroda Kumari Devi, W/o late Vinod Chandra Sanyasi Raju, Aged 45 years, Household duties, Kota Veedhi, Salur, Vizianagaram District. …Defendant.
This suit is coming on for final hearing before me on 10.8.2018 in the presence of Sri S.Srinivasa Rao, Advocate for the plaintiffs and Sri T.Murali Krishna, Advocate for the defendant and after perusing the material available on record and upon having stood over for consideration to this day, the Court delivered the following:
J U D G M E N T
1.This suit is filed by the plaintiffs against the defendant for grant of permanent injunction restraining the defendant and her henchmen from ever interfering with the plaintiffs’ peaceful possession and enjoyment of the schedule mentioned property and for costs of the suit.
2.The brief averments of the plaint are that the plaintiffs are lineal descendants of Salur Zamindar family. The plaintiffs belonged to Hill
Zamindar Konda Dora. The family of the Zamindars has its private properties besides the properties of the Estate. The estate was governed by the Madras Estates Land Act, 1908 which was abolished by virtue of the provisions of the Act of 26 of 1948. The properties relating to the Zamindars i.e., private properties, buildings, lands,
Temples, Muths were left as private properties of Zamindar. The
Zamindar has got many private properties which were also exempted
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and retained by the Zamindars and as the then Zamindar i.e., father of the 1st plaintiff was minor by the time of taking over the Estate, the private properties of the Zamindar were kept under the management of the Government till the Zamindar L.N.Sanyasi Raju, retained majority and the powers of the court of wards came to an end and all the private properties of the Zamindar of Salur were handed over to the Zaminsdar L.N.Sanyasi Raju vide proceedings of the court of wards in D.Dis.No.1365/52 dated 30.12.1952. The plaint schedule property is one of the such property which were listed out in the above mentioned proceedings. Till the date of proceedings of the court of wards, all the properties covered by the said proceedings had been in possession and enjoyment of late L.N.Sanyasi Raju. The plaint schedule properties are part of the said proceedings. Apart from that an extent of Ac.10.00 cents of land was acquired by the grand mother of the 1st plaintiff by name Seethayyamma Mahadevi under re-conveyance agreement
dated 10.04.1941. The grandmother of the 1st plaintiff died and the
father of the 1st plaintiff succeeded the same he had been in possession and enjoyment of the same. Thus the total extent of
Acs.29.33 cents had been in possession and enjoyment of the late
L.N.Sanyasi Raju. Out of the total extent of Ac.29.33 cents father of the 1st plaintiff disposed of land to an extent of Ac.4.50 cents to the third parties and an extent of Ac.5-00 cents of land was acquired by the
Government for the construction of Police Quarters and the remaining extent of land about Ac.19.50 cents is the schedule property. One R.J.
Sanyasi Raju who is father of the 2nd plaintiff and paternal uncle of the 1st plaintiff, used to look after the management of the affairs of the
Estate of Salur. During the tenure of Salur Zamindar L.N.Sanyasi Raju and even after abolition of the Estates, he used to look after the entire affairs of family of L.N.Sanyasi Raju, in respect of all properties of
Zamindari of Salur. In consideration and out of affection late
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L.N.Sanyasi Raju permitted R.J.Sanyasi Raju to enjoy the schedule mentioned property and to that effect a conditional Will under the name and style of “Stirasthi Saswatha Hakku Anubhava Patram” dated 26.08.1997 was executed wherein late L.N.Sanyasi Raju mentioned that the term in the Deed shall enforced by the 1st plaintiff against the 2nd plaintiff by name R.J.Sanyasi Raju. The father of the 1st plaintiff died in the year 1997 and the father of the 2nd plaintiff died in the year 2004 and now the plaintiffs are enforcing the terms of the Deed duly incorporating their possession and title in the Revenue records and thus they have been in possession and enjoyment of the schedule mentioned property. While so, the defendants are proclaiming that they will trespass into the schedule mentioned property without any right, title or interest over the same. The defendants offering threats to the plaintiffs and the plaintiffs will be dispossessed from the land.
Hence the suit.
3.The defendant filed her written statement denying the material averments of the plaint and contended the husband of the defendant by name Vinoda Chandra Sanyasi Raju died intestate on 19.09.2007 leaving the defendant and his three children as his class-I heirs. 1/3rd share of Vinoda Chandra Sanyasi Raju is devolved upon the defendant and her three children. The brother of the 1st plaintiff by name
Viswambara Chandra Sanyasi Raju died and his share was also devolved upon the husband of the defendant and 1st plaintiff in equal shares. R.S.Sanyasi Raju had no relationship with the family of the
Salur Zamindari and he never look after the management affairs of
Salur estate during his life time. If really “Stirasthi Saswatha Hakku
Anubhava Patram” was executed by late L.N.Sanyasi Raju, certainly it will be filed along with the suit. It might have been prepared by the plaintiffs for the purpose of the suit. It is well settled proposition of law
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one cannot be executed the Will or settlement of the entire property which are ancestral in nature. The plaintiffs have been since long time to deprive the legitimate shares in the properties of the defendant and her children. Taking advantage of the fact that the 2nd plaintiff residing at Salur, started laying take claims over several properties belonging to the Salur Zamindar and the 1st plaintiff has been using as a tool under him and bringing into existence of several fake documents fabricated by them. The defendant and her children filed a suit in
O.S.30/2009 for partition against the 1st plaintiff on the file of Hon’ble
District Court, Vizianagaram and the same was transferred to the
Hon’ble 2nd Addl.District Court, Parvathipuram and the same is
pending. The defendant and her children are the co-sharers of the plaint schedule mentioned property with the 1st plaintiff and all of them are joint and constructive family. Suit for injunction against co-owner is not maintainable.
4.Basing on the above pleadings, the following issues were settled for trial:
1) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?
2) To what relief?
5.During the course of trial, on behalf of the plaintiffs PWs.1 and 2 were examined and Exs.A.1 to A.13 were marked. On behalf of defendant DW-1 was examined and no documents were marked.
6. The 2nd plaintiff and defendant filed their written arguments.
Heard both sides.
7.During the course of trial, the counsel for the plaintiff filed not press memo not pressing the suit claim against the 1st plaintiff and suit against 1st plaintiff is dismissed.
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8.Issue No. 1:
According to the plaintiffs they have been in possession of the schedule property by virtue of “Stirasthi Saswatha Hakku Anubhava
Patram” which was executed by late L.N.Sanyasi “Raju. They were issued pattadar pass books and their names were also mutated in the revenue records. They have been in possession of the schedule property. The contention of the defendant is that originally properties are ancestral properties of L.N.Sanyasi Raju and they are legal heirs of
L.N.Sanyasi Raju. They are having share in the property of L.N.Sanyasi
Raju and L.N.Sanyasi Raju alone has no right to execute “Stirasthi
Saswatha Hakku Anubhava Patram” and L.N.Sanyasi Raju never executed any “Stirasthi Saswatha Hakku Anubhava Patram” .
9.The 2nd plaintiff filed his written arguments contended that he filed some documents which were marked as Ex.A-1 to Ex.A-6. The exhibits such as pattadar pass books prepared under Rule 26 (1) of the
Act and Rules and I-B register and V.A.No.3 filed by the Tahsildar are legally admissible documents issued by the competent Revenue authorities under the Act and Rules which extent support to the suit claim of the plaintiff. Exhibits filed by the Tahsildar legally admissible documents which proves and discloses the possession and enjoyment over the schedule property. The Tahsildar, Salur affirmed that those documents are under their custody and did not express any doubt about the genuineness of the documents. The above two documents are Record of rights which indicates that the plaintiffs are in possession and enjoyment of the schedule property. According to Section 6 of the
Pattadar Pass Book Act there is a statutory presumption of correctness of entries in revenue records. Title deed pass book shall be given only persons who are in actual possession of the land. Record of rights in
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respect of title of land in respect of other rights and interests in land.
Pattadar pass book Act, it is clarified that pattadar include every person who holds land under the government under a patta whose name was is registered in the land revenue accounts as pattadar. The above exhibits are documentary evidence to support the possession and enjoyment of the property by the plaintiff. Thus the ingredients required under the Specific Relief Act are complied with. The defendant also admitted in her cross examination about the possession of the plaintiffs over the schedule mentioned property. She also admitted that no knowledge about the boundaries and survey numbers of the property. She admitted that she did not file any complaint to any authority questioning the revenue records. She did not approach any court of law for recovery of the possession of the property. The Court while passing orders in I.A.286/2009 categorically discussed about the possession of the of the plaintiffs over the property. The allegation that property is joint property is only imaginary. The plaintiff filed certain registered sale deeds executed by the family members of the Salur
Zamindar including the husband of the defendant. Therefore, the plea of the defendant that they are joint family properties is untenable. He relied on a decision reported in Nagar Palika Raisinghnagar V.
Rameshwar Lal and another 2018 (1) ALT 51 (SC) wherein it was held that:
“…… Since the respondent held a Patta of the suit land, there was a prima facie case in his favour. Secondly, he was also held to be in possession of the suit land and hence the other two ingredients, namely, the balance of convenience and and irreparable loss and injury, were also in his favour. It is for these reasons, in our view, the plaintiff was rightly held entitled to claim permanent injunction against the appellant (defendant) in relation to the suit land”.
10.The counsel for the defendant argued that the schedule property is joint family property and the plaintiff is not entitled to any injunction against true owner. L.N.Sanyasi Raju has no right to execute
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any Will or Sale deed to others for the joint family properties. The plaintiff is not approached with clean hands and he suppressed material facts. The defendant is nothing but daughter-in-law of
L.N.Sanyasi Raju. There is no cause of action to file this suit. The plaintiff did not file any piece of document that how he is in lawful possession except filing false revenue documents. The R.O.R. Act clearly shows that other than owner who is tenant, yearly cultivator got pattadar pass book. The plaintiff filed only pattadar pass book and did not gave lawful right and possession of the schedule property. He relied on a decision reported in
11.There is no dispute that schedule property originally belongs to
Zamindar, Salur. It is also not disputed that the defendant is daughter in law of L.N.Sanyasi Raju. In this suit claim against 1st plaintiff was dispensed as he not pressed the same. Now the 2nd plaintiff only continued. According to him, plaint B schedule property was settled by way of “Stirasthi Saswatha Hakku Anubhava Patram” . According to
PW-1 “Stirasthi Saswatha Hakku Anubhava Patram” was executed by
L.N.Sanyasi Raju since then he was in possession of plaint A schedule property. The plaintiff relied on Ex.A-1 No.3 Adangal for the year 2007- 2008. As seen from Ex.A-1 plaint B schedule property which is in
S.No.216/1A, 216/1B, 216/5B and 217/1 is in possession of 2nd plaintiff.
But L.N.Sanyasi Raju is pattadar of said land. Ex.A-2 is pattadar pass book issued in the name of 2nd plaintiff shows that plaint B schedule property is in possession of 2nd plaintiff. Ex.A-3 is the Five tax receipts.
Out of Five tax receipts, the tax has been paid by the 2nd plaintiff on behalf of L.N.Sanyasi Raju. In four receipts except tax receipt dt.20.12.2009 all the remaining tax receipts paid on behalf of the
L.N.Sanyasi Raju. The tax receipt dated 20.12.2009 is only paid by the 2nd plaintiff for the land situated in S.No.216 and 217 for an extent of
Ac.11.19 cents. Ex.A-4 is the copy of orders passed by the Hon’ble High
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Court of Judicature at Hyderabad in W.P.No.24609/2009 and the said writ petition filed by the plaintiff herein against District Collector,
Vizianagaram and Tahsildar, Salur and the Hon’ble High Court passed order that the District Collector shall consider and pass appropriate orders as warranted by law. Ex.A-5 is the certified copy of judgment in
O.S.22/2005. The defendant herein is not a party to the above
proceedings. Further in the said judgment the Hon’ble Court observed that D-1 and D-2 are strangers and third party and nothing to do with the schedule property. The defendant herein is not a party to the above proceedings, therefore Ex.A-5 is not binding on the defendant.
The plaintiff exhibited some sale deeds stating that husband of the defendant made some sale transactions during his life time. Ex.A-8 is the certified copy of registered sale deed dated 12.8.2006 executed by husband of defendant. In Ex.A-8 it is recited that property covered under Ex.A-8 was expired by way of family arrangement. Ex.A-9 is the certified copy of registered sale deed dated 2.4.1983 executed by father of 1st plaintiff and others and it is mentioned that property got in the family arrangement. Ex.A-10 is the certified copy of Registered sale deed dated 4.9.1995 executed by the husband of defendant and it is also mentioned that property fell to his share in the partition. Ex.A- 11 is the certified copy of registered sale deed dated 8.12.2006 executed by the husband of defendant. It is also recited that property fell to his share in the family arrangement.
12.The plaintiff’s counsel contended that in the documents executed by the L.N.Sanyasi Raju and defendant’s husband there is a specific recital that there was family arrangement and all the children of L.N.Sanyasi Raju are enjoying their respective shares except properties situated opposite to Post office entire property of Zamindar were partitioned, now the defendant is claiming that property is joint family property. DW-1 in her evidence admitted that they are enjoying
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their respective properties. As seen from the evidence of DW-1, she has stated that she has got monthly income of Rs.5000/- through 8 shops. She performed marriages of her daughter from the money given by her brother and taking advance of Rs.1 lakh from each shop.
They are collecting rents from their shops likewise 1st plaintiff is collecting rents from his shops. Of course the documents Exs.A-8 to
A-12 shows there was family arrangement between L.N.Sanyasi Raju and his family members and L.N.Sanyasi Raju and 1st plaintiff sold away some property of their own accord. The evidence of DW-1 shows that she is receiving rent from shops. But it is not the case of plaintiff that the plaint schedule properties fell to the share of L.N.Sanyasi
Raju. The 1st plaintiff who is natural heir of L.N.Sanyasi Raju did not contest the suit. It is a fact that 2nd plaintiff is no way related to
L.N.Sanyasi Raju’s family and he is not legal heir of L.N.Sanyasi Raju.
As per the version of the 2nd plaintiff he got the property by virtue of “Stirasthi Saswatha Hakku Anubhava Patram” . But the said “Stirasthi
Saswatha Hakku Anubhava Patram” was not filed before this Court for the reasons best known to the 2nd plaintiff. The defendant is claiming the property is a joint family property and documents filed by the plaintiff they show there is a family arrangement but there is no evidence that entire family properties are partitioned and the schedule property fell to the share of L.N.Sanyasi Raju. Even there is no evidence that suit property is personal property of L.N.Sanyasi Raju.
When it is the case of the plaintiff he got the property by virtue of “Stirasthi Saswatha Hakku Anubhava Patram” he has to produce the said document before this Court to prove his source of title, especially when the defendant is challenging that there is no “Stirasthi Saswatha
Hakku Anubhava Patram” and the revenue records are fabricated. In this case one Tahsildar was examined as PW-2 and he brought some records before court. He deposed that as per manual I-B register, Pw-1
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having lands in S.No.216/1A, 216/1B, 217. In the revenuer records filed by the plaintiff nature of the property is shown as “Swantham” but no where in the revenue records it is mentioned that he got the property by virtue of conditional Will.
13.The plaintiff filed some revenue documents. Ex.A-13 Tax receipts stating that he paid tax for the said property. The said tax receipts were paid by L.N.Sanyasi Raju and one tax receipt paid by the husband of defendant. The said documents were filed stating that separate tax paid by L.N.Sanyasi Raju and husband of defendant. It may be true that there was family arrangement between parties but there is no evidence that the entire properties are partitioned. Further it is the own case of plaintiff that some properties are kept joint. In a suit for injunction the plaintiff has to prove his case. The plaintiff relied on a decision reported in Prakash Singh V. State of Haryana and Ors wherein it was held that:
“law respects possession even if there is no title to support it. No one is permitted to take law in one’s own hands and to dispossess the person in actual settled possession without due course of law...”
Admittedly no one can be permitted to take law into their own hands.
But in the above case, the plaintiff was brought to the village as “Kami” by Bhakhra Oustees who gave him site on assurance that he would not be dispossessed therefrom and submitted an application for allotment of suit property to him on government rate. Though DW-1 has admitted in her cross examination that the plaintiff has occupied schedule property it is not the case of the plaintiff that he is an encroacher or trespasser. According to him he is in possession of the schedule property lawfully. But in the above decision, the court observed that trespassers cannot be ejected forcefully. But it is not the case of the plaintiff that he is trespasser and the facts are different
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from the case and hence the above said decision is not applicable to the present case.
14.It is the contention of the plaintiff in I.A.286/2009 the court observed that the defendants failed to prove that properties belong to joint family, property and the said order is conclusive proof to pass a decree. The said Order in I.A.286/2009 was passed by the Court while deciding in temporary injunction petition and the observation made in the temporary injunction petition are not binding while deciding the main suit and the parties have to lead evidence to prove their case.
15. It is contended by the plaintiff that he obtained revenue records and his name is mutated in revenue record. Therefore, there is statutory presumption of correctness of entries shall be presumed to be true until contrary is proved. The plaintiff relied on a decision reported in M.Narasimha Reddy and others V. Supdt.Engineer,
Irrigation, Warangal and others 2000 (3) ALT 295 wherein it was held that:
“….Section 6 of the A.P.Rights in Land and Pattadar Pass Books Act, 1971 create a statutory presumption about the correctness of the entries in Record of Rights. As already noted, the petitioners’ names were entered in the said Record of Rights by the revenue authorities….”
He relied on another decision reported in Chanumolu Nirmala and others V. Chanumolu Indira Devi 1994 (1) ALT 673 (D.B.) wherein it was held that:
“….Under Section 6 of the Andhra Pradesh Record of Rights in Land Act, 1971, every entry in the Record of Rights shall be presumed to be true until the contrary is proved or until it is otherwise amended in accordance with the provisions of the said Act. Ex.A-16, the Ryot pass book, contains the signatures of the Revenue Inspector and the Village Officer. Its authenticity, therefore, cannot be doubted….”
16. There is presumption under Section 6 of Pattadar pass book Act that entires in revenue records are correct but it is rebuttable presumption and entries in the revenue records are not conclusive but
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presumption of correctness can apply to the genuine entries but not fradulent entries. When it is the case of the defendant documents are obtained by playing fraud, burden is on the plaintiff to prove his revenue records are genuine . The records filed by the plaintiff shows that he has obtained said documents by stating that property is his own property. There is no specification in the revenue records that he got the property by virtue of conditional Will or “Stirasthi Saswatha
Hakku Anubhava Patram”. There is no explanation why there is no such entry in the revenue records that plaintiff got the property by virtue of “Stirasthi Saswatha Hakku Anubhava Patram”. Further according to the documents filed by the plaintiff shows that pattadar of property is L.N.Sanyasi Raju. Further the plaintiff did not choose to file
Title deed book reasons best known to the him. It is contended that originally the property belongs to L.N.Sanyasi Raju’s family. It is also contended that L.N.Sanyasi Raju having three son. Though there is evidence that there was family arrangement between L.N.Sanyasi Raju and his brother, there is no evidence that partition was effected between them. There is no evidence that schedule property fell to the share of L.N.Sanyasi Raju. When the property is joint family property,
L.N.Sanyasi Raju alone having no right to execute any deed. There is no evidence on record to show that suit schedule property fell to the share of L.N.Sanyasi Raju. Though the documents shows that some family arrangement but some documents filed by the plaintiff i.e.,
Ex.A-8 to A-12 it cannot be said that schedule property fell to the share of L.N.Sanyasi Raju. It is also an admitted fact that some properties of
L.N.Sanyasi Raju were still kept joint. It is the case of the defendant that all properties are kept joint, burden is on the plaintiff to prove that schedule property fell to the share of L.N.Sanyasi Raju or his personal property. But there is no such averment and thee is no pleading in the plaint also. When the defendant is challenging entries in the revenue
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records, the plaintiff has to prove those documents obtained genuinely and he is in lawful possession. Simply obtaining some revenue records is not sufficient. He has to prove that he has placed material before revenue people while obtaining revenue records. But there is no evidence such “Stirasthi Saswatha Hakku Anubhava Patram” is placed
before revenue people and entries were made. there is no evidence on
what basis his name is mutated in revenue records. Even the said “Stirasthi Saswatha Hakku Anubhava Patram” not produced to show lawful possession. Furthermore, it is contended that defendant is daughter in law of L.N.Sanyasi Raju but in the entire plaint averments there is no such pleading that the defendant is daughter in law of
L.N.Sanyasi Raju. In the plaint it is pleaded that the defendant is proclaiming that she will trespass into the property without any right or title. In the pleadings, the plaintiff suppressed the fact that defendant is daughter in law of L.N.Sanyasi Raju. Injunction is an equitable relief and plaintiff has to come before court with clean hands and person who approached the court with unclean hands is not entitled for relief of injunction. Therefore in the light of above, the plaintiff is not entitled for the relief of injunction as prayed for.
15.Issue No.2:
In the result, the suit is dismissed with costs.
Dictated to the Stenographer, Gr.III, transcribed by him,
corrected and pronounced by me in open Court on this the 16th day of August, 2018.
Sd/- K.Sailaja
JUNIOR CIVIL JUDGE,
SALUR. Appendix of Evidence Witnesses examined For Plaintiffs: PW-1: P.B.Srinivas PW-2: S.Krishnam Raju
For Defendant: DW-1: Nirod Kumari Devi
Documents marked
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For Plaintiffs:
Ex.A-1: True copy of V.A.No.3 Adangal for fasali year 2007-2008 and 2008-2009. Ex.A-2: Pattadar pass book in the name of 2nd plaintiff. Ex.A-3: Tax receipts (5 in Nos.) Ex.A-4: Copy of orders passed by the Hon’ble High Court of Judicature at Hyderabad in W.P.No.24609/2009. Ex.A-5 is the certified copy of judgment in O.S. 22/2005 on the file of
Hon’ble Senior Civil Judge’s Court, Bobbili.
Ex.A-6: Attested copy of I-B Register (Manual relevant page) Ex.A-7: Attested copy of No.3 Adangal register relevant page . Ex.A-8: Certified copy of registered sale deed dated 12.8.1996 executed by father of the 1st plaintiff. Ex.A-9: Certified copy of registered sale deed dated 2.4.1983 executed by father of 1st plaintiff and others and it is mentioned that property was brought up in the family arrangement. Ex.A-10: Certified copy of Registered sale deed dated 4.9.1995 executed by the husband of defendant. Ex.A-11:Certified copy of registered sale deed dated 8.12.2006 executed by the husband of defendant. Ex.A-12: Regd. Sale Agreement cum G.P.A. dt.8.12.2006 executed by the Husband of defendant. Ex.A-13: Tax receipts (4 in Nos.)
For Defendant: -NIL-
Sd/- K.Sailaja
JUNIOR CIVIL JUDGE,
SALUR.
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