Smt. K.V.L.Hima Bindu

1 /Fair Judgment//

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION),

SRIKAKULAM.

Present :- Smt. K.V.L. Hima Bindu,

Principal Civil Judge (Senior Division),

Srikakulam.

WEDNESDAY, THIS THE 9 TH DAY OF APRIL, 2025

ORIGINAL SUIT No. 143 / 2010 and 227 / 2011

O.S.No.143 / 2010

Between :

1. Metta Pentamma, W/o.late Pentayya, aged 70 years, Household duties resident of Plot No.466, PN colony, Srikakulam town and District.

2. Metta Syamalarao, son of late Pentayya, aged 45 years, unemployee, rest – do -

3. Metta Ramana, S/o.Late Pentayya, aged 44 years, Singuru village, Ponduru Mandalam, Srikakulam District. (Amended as per the Orders of this Court in I.A.988/2011 dated 15.11.2011)

.… Plaintiffs.

And :

1. The Municipal Commissioner, Srikakulam Municipality, Srikakulam town and District.

2. The State of A.P. represented by its District Collector, Srikakulam town.

AND 2

O.S.No.227 / 2011

Between :

The Srikakulam Municipality, represented by Commissioner, Srikakulam Town and District. .… Plaintiff.

And :

1. Metta Pentamma (died)

2. Metta Syamalarao, S/o.late Pentayya, aged 45 years, residing at Plot No.466, P.N.Colony, Srikakulam Town and District.

3. The Tahsildar, Srikakulam Rural Mandal, Srikakulam Town and District.

4. The Revenue Divisional Officer, Srikakulam.

5. The District Collector, Srikakulam,

6. Metta Ramana, S/o.Late Pentayya, aged 44 years, Singuru village, Ponduru Mandalam, Srikakulam District.

(6th Defendant added as LR of D1 as per the Orders in I.A.1288/2012, dated 29.02.2012)

7. Sri Ramakrishna Government Employees Co-Operative House building Society Ltd. D.No.3-3-24/10, Paramkusam Nagar Colony, Flat No.13, Srikakulam Town and District.

(7th Defendant added as necessary party as per the orders in I.A.1744/2015

dated 19.09.2016)

… Defendants.

These suits in OS.143/2010 and OS.227/2011 coming before me on 03.03.2025 for final hearing in the presence of Sri K.Nagabhushana Rao,

Sri H. Ramakrishna, Learned Counsels for Plaintiffs in OS.143/2010; and

Sri D.Pardhasaradhi, Learned Municipal Standing counsel for D1; while D2 remained exparte; 3 and of Sri D.Pardhasaradhi, Learned standing Counsel for the

Plaintiff Municipality in OS.227/2011; Sri K.Nagabhushana Rao, Learned

Counsel for D2 and D6; and Sri M.Vinayabhushana Rao, Government

Pleader for Defendants 3 to 5; 1st Defendant died; and the matters having been heard and stood over for consideration till this day, this Court delivered the following :

C O M M O N J U D G M E N T

1.The present suit in OS.143/2010 is filed seeking the relief of permanent injunction restraining the Defendants, their men and staff from ever interfering with peaceful possession and enjoyment over the Plaint schedule property by the Plaintiff in the Interests of Justice.

2.The plaint averments goes to show that originally the Plaint schedule property and other sites in Fazulbegpeta, PN colony falls under poramboke land and Government also got right over the said poramboke land to issue house site patta to houseless poor people.

3.It is submitted that Plaintiff no.1 being very poor and landless person applied to District Collector, Srikakulam for granting D-patta house site.

Considering the same, the District Collector, Srikakulam directed the

Tahsildar, Srikakulam to conduct enquiry after which the Tahsildar,

Srikakulam issued D-Patta for house site to the Plaintiff no.1 under 4

R.C.No.446/85 A dt.21.04.1986. Since the date of issuing of the D-Patta to

the Plaintiff no.1, she got absolute right, title, possession and enjoyment over the Plaint schedule property. Later the Plaintiffs wanted to construct house in the D-Patta house site i.e., Plaint schedule property and so in the month of November, 2008 applied to the 1st Defendant for fixing the correct boundaries. Thereupon the 1st Defendant deputed Mandal Surveyor, who visited the plaint schedule property on 29.11.2008 along with Municipal records and fixed the boundaries and handed over physical possession to the Plaintiff and accordingly the Town Surveyor, Srikakulam made endorsement on the back side of D patta.

4.It is submitted that after confirmation of the correct boundaries of the

Plaint schedule properties, the Plaintiff filed requisition before R.D.O.

Srikakulam for issuance of house site confirmation letter. Accordingly the

R.D.O, Srikakulam issued house site confirmation letter after verification of the Plaintiff’s D patta and their site. Hence the Plaintiffs started house construction on 12.03.2009 and completed the same by 15th August, 2009 with their hard earned money and also borrowed some amounts from relatives. After completion of the house, the Plaintiff applied for electrical service connection and same was granted vide service number 13110- 1601-044984. The 1st Defendant also visited the Plaint schedule property personally and assessed tax as per the house measurements and allotted 5 assessment number No.1085018807. The Defendants are knowing fully well that the Plaintiffs got house site patta and constructed the house in the said patta site and that they are paying tax to the Srikakulam Municipality.

The 1st Plaintiff got absolute right, title, possession and enjoyment over the

Plaint schedule property and living in the said house since 24 years. As per the policy of the Government, they granted D-patta house site to the 1st

Plaintiff and the Tahsildar, Srikakulam had given several house site pattas in the PN colony to several poor people including the 1st Plaintiff. The

Defendants have no right over the Plaint schedule property and also no right to dispossess the Plaintiffs from the Plaint schedule property. However recently the 1st Defendant is trying to dispossess the Plaintiffs from the

Plaint schedule property due to some political pressure and litigant public to gain his own ends. Without knowing the facts the 1st Defendant personally came to the house of the Plaintiff and threatening the Plaintiffs to dispossess from the Plaint schedule property and also trying to demolish the Plaint schedule property without any right or whatsoever. The Plaintiffs are apprehending that the Defendants will demolish house of the Plaintiffs and dispossess them from the house and in case of such acts, the Plaintiffs will be put to heavy and irreparable loss. The 1st Defendant’s staff are openly proclaiming and threatening in the locality on 24.4.2010 that they will highhandedly trespass into the Plaint schedule property and dispossess the

Plaintiff and demolish the house without any right or whatsoever by using 6 force. The Plaintiffs are very poor and innocent and they cannot resist the acts of the Defendants otherwise than by way of injunction order passed by the Court. Hence the suit is filed for permanent injunction seeking to restrain the Defendants, their men and staff from ever interfering with peaceful possession and enjoyment of the Plaintiff over the Plaint schedule property.

5.Written statement filed by the 1st Defendant denying the Plaint averments and they submitted that Sri Ramakrishna Government

Employees Co-Operative House Building Society formulated layout in an extent of Ac.55.11 ½ cents covered by survey Nos.99, 100, 139, 140 and 142 situated at Fazulbeghpeta PN Colony and the Director of Town and

Country Planning, A.P. Hyderabad has granted tentative approval vide proceedings in LP.No.577/83 subject to observance of certain conditions as laid down in the proceedings. The Defendant submits that one of such condition is that the layout owner has to gift the plot nos.264, 294, 393, 416, 417, 458, 465, 466, 471, 475, 478, 490, 519, 520, 523, 430, 399 and eight irregular bits measuring to a total extent of 8702.83 square yards for public utility purpose. The Defendant Municipality provided infrastructure to the layout, and they are the custodian and possessor of the gifted plots in the said approved layout pursuant to the condition imposed by the Director of

Town and Country Planning, AP, Hyderabad. However the Plaintiff taking advantage of patta said to have been issued by the Revenue Authorities 7 vide No.7446 dt. 24.02.2009, had unauthorizedly constructed RCC roof slabbed house over the gifted plot bearing No.465. The Plaintiff contended that this is a Government land and that the Revenue authorities got issued patta in Plaintiffs favour and the boundaries of the plot in question clearly showed as follows:

East Plot No.465, South: Plot No.408, West: Vacant land, North: Road. As per alleged patta is concern it is numbered 466 but, the Plaintiff constructed house in 465 plot.

6.It is submitted that nowhere it is mentioned with regard to the

Government Land as contended by the Plaintiff. Hence, it is crystal clear that the Revenue Authorities without having any manner of right over the layout gifted plots might have issued pattas. As such their act in issuing pattas in an approved layout is beyond their powers and arbitrary and are liable to be struck down. The allotment of door number is for the purpose of census and payment of property tax and it shall not confer any right of occupation to the Plaintiff in respect of the gifted plots in an approved layout vide LP.No.577/83. While contending that all the allegations might have been motivated by the Plaintiff for the purpose of this suit to satisfy the

Court in getting exparte orders, submitted that the balance of convenience is in favour of Defendant. The factual circumstances explained above, clinchingly establishes that the Plaintiff approached the Court by 8 suppressing the material facts. As such, they are not entitled to seek any sort of relief’s as prayed for in the suit. There is no iota of evidence to show that the schedule property belongs to Government. If at all the Court grants any injunction in favour of the Plaintiff, this Defendant Municipality and public at large will suffer irreparable loss and injury. While contending that the cause of action, boundaries and the particulars of valuation furnished by the Plaintiffs are not true and correct and invented for the purpose of this suit contended that the suit is not maintainable under law and in all prayed to dismiss the suit with exemplary costs.

7.This being so, as first Plaintiff died, Plaintiff no.3 was impleaded as her legal heir as 2nd Plaintiff is already on record and necessary amendment carried out. However the 1st Defendant reported no additional written statement.

8.Upon hearing the rival contentions of both the parties, the following issues were settled for trial by my predecessor :

1) Whether the Plaintiffs are entitled for the relief of Permanent Injunction as prayed for ?

2) Whether the Tahsildar, Srikakulam issued D-Patta for schedule site to the Plaintiff ?

3) To what relief ?

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9. This being so, the suit in OS.227/2011 is filed for declaration, recovery of possession and mandatory injunction to demolish unauthorized constructions raised by Defendants 1, 2 and 6 in the Plaint Schedule property in the Interests of Justice.

10.The plaint averments goes to show that the Plaintiff is the rightful owner of the suit schedule property and the property is house site bearing

Plot no.466 in S.No.100 part at Fazulbegpeta, Srikakulam which is more fully described in the Plaint schedule.

11.It is submitted that Sri Ramakrishna Government Employees Co-

Operative House Building Society formulated a layout in an extent of

Ac.55.11 ½ cents covered by S.Nos.99, 100, 139, 140 and 142 situated at

Fazulbegpeta, P.N. Colony and the Director of Town and Country Planning,

A.P. Hyderabad has granted tentative approval vide proceedings in LP

No.577/83 subject to observation of certain conditions as laid down in the proceedings. The Plaintiff submits that pursuant to one such condition that the layout owner has gifted the plot Nos.264, 294, 393, 416, 417, 458, 465, 466, 471, 454, 478, 490, 519, 520, 523, 430, 399 and eight irregular bits measuring to a total extent of 8702.83 square yards. On fulfillment of the conditions imposed by the Director of Town and Country planning, the 10 layout was formulated. Srikakulam Municipality has provided infrastructure to the layout and the Plaintiff is the custodian and possessor of the gifted plots in the said approved layout in pursuance of the conditions imposed by the Director of Town and Country Planning, AP, Hyderabad. In fact nobody have got any right or claim over the gifted plots Nos.264, 294, 393, 416, 417, 458, 465, 466, 471, 454, 478, 490, 519, 520, 523, 430, 399 and eight irregular bits measuring to a total extent of 8702.83 square yards in the approved lay out.

12.It is submitted that while the things stood thus, the 1st and 2nd

Defendants taking advantage of open site, created patta with the help of D3 to D5 and constructed slabbed house and claiming right over the gifted plot bearing No.466. The 1st and 2nd Defendants contended that this is a government land and that the revenue authorities got issued patta in her favour. The Plaintiff submits that basing on the alleged patta, the 1st and 2nd

Defendants filed IA No.317/2010 in O.S.143/2010 on the file of this Court and obtained temporary injunction against the Plaintiff. The suit schedule property does not belong to Government land and the Revenue authorities without having any right over the layout gifted plots, issued Patta in favour of the Plaintiff and hence the same is liable to be canceled. The allotment of door number is for the purpose of census and payment of property tax and shall not confer any title or occupation of the 1st and 2nd Defendants in 11 respect of the gifted plots in an approved layout vide LP No.577/83, of 7th

Defendant.

13.The 1st and 2nd Defendants filed O.S.143/2010 for permanent injunction basing on patta which is alleged to be issued by D3 to D5 and hence the Srikakulam Municipality filed this suit for declaration, recovery of possession and mandatory injunction over the plaint schedule property. The 1st and 2nd Defendants are having possession by unauthorized occupation and hence they cannot claim ownership. The layout owner’s i.e., Sri

Ramakrishna Government Employees Co-operative House Building

Society, i.e., 7th Defendant gave the plots as reserve site to Srikakulam

Municipality for public utility purpose only. Since the possession of

Defendants 2 and 6 is that of trespassers, the Municipality has got every right to take back the possession of the Plaint schedule property from the

Defendants. Hence the suit is filed for declaration, recovery of possession and mandatory injunction to demolish unauthorized construction in the

Plaint schedule property.

14.Written Statement is filed by the 2nd Defendant denying the Plaint averments. It is submitted that originally the Plaint schedule property and other sites in Fazulbegpeta from PN colony is Government poraboke land and the Government got right over the said poramboke land. The private 12 persons or the Ramakrishna House Building Society or the Plaintiff does not have any right over the Plaint schedule property and the Government got right to issue house site patta to homeless poor people.

15.It is submitted that during the lifetime of the first Defendant, she applied to District Collector, Srikakulam for granting D-patta house site, who directed the Tahsildar, Srikakulam to conduct enquiry. After enquiry, the

Tahsildar, Srikakulam issued D-Patta house site to the 1st Defendant under

R.C.No.446/85 A dt.21.04.1986 and the said original D-patta is filed in

O.S.143/2010 on the file of this Court which is still pending. Since the date

of issuing of the D-Patta to the 1st Defendant, she got absolute right, title, possession and enjoyment over the Plaint schedule property. Later, the

Defendant No.1 made application to the Tahsildar, Srikakulam for fixing of the boundaries and handing over possession of the Plaint schedule property. On the said requisition of the first Defendant the said Tahsildar,

Srikakulam deputed Mandal Surveyor to fix-up the boundaries and also to handover the physical possession of Plaint schedule property to the first

Defendant. Accordingly the Mandal Surveyor, Srikakulam along with Town

Surveyor, Srikakulam visited the plaint schedule property on 29.11.2008 along with Municipal records and fixed the boundaries and handed over physical possession to the 1st Defendant and the Town Surveyor,

Srikakulam made endorsement on the back side of D patta accordingly.

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16.It is submitted that after confirmation of the correct boundaries of the

Plaint schedule properties, the first Defendant filed requisition before

R.D.O. Srikakulam for issuance of house site conformation letter.

Accordingly the R.D.O, Srikakulam issued house site confirmation letter after verification of the 1st Defendant D patta and her site and the said house site confirmation letter is also filed in O.S.No.143/2010 on the file of this Court.

17.It is submitted that he started house construction on 12.03.2009 and completed by 15.08.2009 with hard earned money and some amounts also borrowed from relatives. After completion of the house in the Plaint schedule property the 1st Defendant applied for electrical service connection and same was granted by the electrical authorities vide service number 13110-1601-044984. He also made application to the Plaintiff for the assessment of the tax as per the provisions of the Municipal Act.

Accordingly the Plaintiff visited the Plaint schedule property and took the measurements of the property for assessment of tax and the Plaintiff also gave assessment number 1085018807. The Defendants 1 and 2 are paying tax and also electricity bills. The Plaintiff is knowing fully well that the

Defendant No.1 was granted house site patta and constructed the house in the said site and paying of the tax to the Srikakulam Municipality. During the life time of the 1st Defendant she got absolute right, title, possession and 14 enjoyment over the Plaint schedule property till her death and thereafter the 2nd Defendant, who is the son of the Defendant No.1, is her legal heir and got absolute right, title possession and enjoyment over the Plaint schedule.

The Defendants 1 and 2 are enjoying the Plaint schedule property since 24 years unquestioned by anybody including the Plaintiff.

18.The Government policy is to provide houses to homeless poor people and they also constructed houses under Swagruha scheme. As part of the policy, Government of A.P. had given D-patta house site to the 1st

Defendant and also to others nearby in the locality. They also constructed their houses in the patta lands given by the Government. The Plaintiff do not have any right over the Plaint schedule property and also not having any documents to show that the Plaint schedule property belongs to them.

Moreover Ramakrishna House Building Society had not given any gift deeds to the Plaintiff and the Plaintiff have no right to dispossess the

Defendants No.2 from the plaint schedule property and the Plaintiff admitted that the Defendants 3 and 4 having issued D pattas to the first

Defendant. The Plaintiff never questioned the Defendants 1 and 2 even at the time of construction of building nor gave any notice to the Defendants 1 and 2. Due to the political pressure, the Plaintiff is trying to dispossess the

Defendants 1 and 2 from the Plaint schedule property at that stage the

Defendants 1 and 2 filed suit for an injunction in O.S.143/2010 on the file of 15 this Court which was pleased to grant interim injunction in favour of the

Defendants 1 and 2. While contending that Plaintiff is not having any right and not entitled for any relief as prayed for, submitted that there is no cause of action to file the suit and that the suit is barred by limitation and not maintainable, in all prayed to dismiss the suit with costs.

19.Written Statement is filed by the 3rd Defendant which is adopted by the 4th and 5th Defendants vide separate memo.

20.It is submitted that there is no need to cancel the house site patta as they are not issued by this Defendant and there is no need to cancel the forged pattas. The layout plots are gifted for public utility purpose only. The

Plaintiff can take any action under law against the 1st Defendant, and that there is no cause of action for filing the suit against the Defendants 3 to 5 and hence in all prayed to dismiss the suit with costs.

21.After Defendant no.6 was impleaded onto record as legal heir of the deceased 1st Defendant vide orders (6th Defendant added as LR of D1 as per the Orders in I.A.1288/2012, dated 29.02.2012) he marked his appearance and filed memo adopting the written statement of the 2nd

Defendant. D3 to D5 reported no additional written statement on their behalf.

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22.Upon hearing the rival contentions of both the parties, the following issues were settled for trial by my predecessor :

1) Whether the Plaintiff is entitled for declaration of title and for possession as prayed for ?

2) Whether the Plaintiff is entitled for the relief of mandatory injunction as prayed for ?

3) Whether the Plaintiff is entitled for relief of permanent injunction as prayed for ?

4) Whether the Plaint schedule property is government poramboke land ?

5) Whether the Tahsildar, Srikakulam issued D patta for the house site in favour of the 1st Defendant ?

6) To what relief ?

23.This being so, IA.761 /2014 was preferred in OS.143 / 2010 pursuant to which it was directed to conduct joint trial of both the matters OS.143 2010 and OS.2272011. Hence evidence was recorded in OS.143/2010 accordingly and for convenience sake, the parties shall be hereinafter referred as arrayed in OS.143/2010.

24.During the course of trial, the Plaintiff got examined PW1 to PW4 on their behalf and placed reliance on Ex.A1 to Ex.A15. They further got examined CW1 on their behalf. To rebut the case of the Plaintiff, the

Defendants got examined DW1 to DW6 and placed reliance on Ex.B1 to

Ex.B21. (Ex.B20 and Ex.B21 were got marked through CW1).

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25.Heard both sides. Perused material on record.

26.While the suit in OS.143/2010 was filed by the Plaintiff seeking the relief of permanent injunction against the Defendants restraining them from interfering into the peaceful possession and enjoyment of the suit schedule property which is said to have been a D-patta land granted to the Plaintiff,; the Defendant no.1 in OS.143/2010 while denying the same filed suit in

OS.227/2011 seeking the relief of declaration of title and for recovery of

possession contending that in fact the said plot is part of the layout formed by Sri Ramakrishna Government Employees Co-operative House Building

Society at Fazulbegpeta and it is one of the plots gifted to the Srikakulam

Municipality for public utility purpose and further sought for the relief of mandatory injunction seeking to dismantle the existing structures in the suit schedule property and for such other reliefs in the interests of Justice.

27.To substantiate their contention the 2nd Plaintiff got himself examined as PW1 and filed his chief affidavit in lieu of his chief examination and reiterated the entire contents as in the plaint. It is submitted that in fact the first Plaintiff is his mother to whom the Tahsildar has granted D-patta /

Ex.A1 vide R.C.No.446/85 dated 21.04.1986 considering the application made by her since she is a landless poor person. Further that she applied for fixing of the correct boundaries for construction of house and accordingly the Surveyor visited the suit schedule property on 29.11.2008 18 along with municipal records and fixed the boundaries and handed over the physical possession of the same and made endorsement on the backside of the patta to that effect. Later an application was also made for issuance of house site confirmation letter and after verification, the RDO has issued house site confirmation deed / Ex.A2. The Plaintiff accordingly constructed house in the said site and was paying tax and electricity charges also having obtained service connection. Ex.A2 is the house tax demand notice and Ex.A4 and Ex.A5 are the house tax receipts, Ex.A6 to Ex.A10 are the electricity consumption bills together with demand notices and Ex.A12 and

Ex.A13 are the electricity bills. It is also stressed upon that the fact of issuance of patta is also duly entered in the patta register and Ex.A14 is the attested copy of the house site patta register obtained under RTI Act. The relevant entry in the said register in page 18 serial number 5 is marked as

Ex.A15. Thus by placing reliance on the said documents it is stressed upon that the Plaintiffs were in possession and enjoyment of the said patta land from the time patta was granted without any interference and that if at all the Defendants are not restrained from interfering into their possession and enjoyment that they will suffer irreperable loss and injury.

28.To corroborate their contention, they further got examined PW2 who is said to be resident of plot no.473 and staying in the said area from the past 18 years and as such acquainted with the facts of the case. He reiterated that the Plaintiff was issued patta in which she constructed 19 slabbed house and has been in possession and enjoyment of the same.

However it cannot be ignored that as elicited he does not have any knowledge with regard to the facts concerning grant of patta, delivery of possession, etc., and are based on his knowledge that Plaintiffs are staying in the schedule property and hence deposed to that effect.

29.It is to be noted that though the Plaintiff made endeavor to summon

PW3 / Tahsildar and also for cause production of the original patta register.

However, when he entered into the witness box, he contended that no such patta was granted by them and also denied Ex.A2 to be issued by them.

Further it is submitted that pages 13 and 14 of the said register are missing.

Thus it is the case of the Plaintiffs that only to support the case of the

Government that the said pages were intentionally removed from the register, which however he denied. Admittedly as per the original register, their department granted patta to one Rakoti Krishnamma w/o.Ganesh in respect of plot number 264 in survey number 100 P. The said recital is found place in page no.16 of Ex.A15 register. Admittedly page no.17 in

Ex.A15 was strike off and the same page in original of Ex.A15 also strike off. The page number 20 of Ex.A15 is shown as page no.15 in original register. The page no.21 and 22 in Ex.A15 is page 16 in original register and are same. The page nos 23 and 24 of Ex.A15 are strike off and the same are shown in the original page no.18 and 19. He verified all the pages 20 of Ex.A15 by comparing with the original register except pages no.13 and 14, the remaining pages of Ex.A15 are the same with the original register.

He does not have any personal knowledge with regard to the suit transactions and he was deposing only based on the record. Admittedly as per the original of Ex.A15, that government issued house site pattas to

Seepana Chinnammi, Gurugubelli Ramu in survey number 100 of

Fazulbegpeta, which is the survey number in which the Plaintiff is contending herself to have been granted patta. As per PW3, the document showing the layout plan issued by the Srikakulam Municipality does not contain the survey number 100.

30.As PW3 did not support their case, the Plaintiff got summoned PW4 /

Administrative Officer who earlier worked as Tahsildar of Srikakulam for the period April, 2013 to February, 2014. As per PW4, on the application of the

Plaintiffs under RTI Act, he issued Ex.A14 which is the true copy of the house site patta register for the years 1986 to 1996. Their deputy Tahsildar attested Ex.A14 after he obtained the xerox of the original. As per Ex.A14, house site patta are granted to 6 persons at Fazulbegpeta village. The name of Metta Pentamma / 1st Plaintiff herein is shown in sl.no.5 in Ex.A14 relating to survey number 100P block no.466 vide proceedings RC no.466/85 dated 21.04.1986.

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31.His evidence is crucial as he is the one who is having knowledge with regard to the patta register as he acted upon the application of the Plaintiff and furnished attested copy of the same under RTI Act. Further he also brought along with him the original house site patta register for the years 1986 to 1996 before this Court and hence certain discrepancies which crept in the Ex.A14/ attested copy of the said register with the entries noted in the original register were confronted during the cross examination and elicited as under :

32.During the cross examination of PW4, he admitted that he issued

Ex.A14 as per the available record but he did not verify each and every entry relating to the respective pattas. He verified the page numbers of

Ex.A14 before issuing the same. Admittedly page no.106 is not mentioned in Ex.A14. Further as admitted, except the entry relating to Metta

Pentamma (PW1), all the other entries in Ex.A14 does not contain the block

No. i.e., except page no.18 of Ex.A14. Admittedly as per Ex.A14, the total extent of site mentioned across the name of PW1 is shown as Ac.0.02 cents. Admittedly page No.s18 and 19 of Ex.A14 are struck of even in the original register. Admittedly after leaving 3 pages, the page number was mentioned as 1. Without verifying the original record, he cannot say to whom survey number 100/p belongs to. He mentioned the page number as 19 but did not mention page numbers 1 to 26. Thus in all it was contended that Ex.A14 is not the true extract of the house site patta register and hence 22 that no reliance can be placed on the same, which is however denied. But at the same time, it cannot be ignored that as elicited during the cross examination of PW4, there is definitely discrepancy in the details appearing in the original register to that of Ex.A14. However the crucial aspect which needs appraisal is whether in view of any such discrepancies as elicited, the very genuinety of the entry made in the register be doubted.

33.This being so, the other crucial witness who was got examined on behalf of the Plaintiffs is the Surveyor / S.Rajagopalarao who is said to have made endorsement on Ex.A1 / Patta to the extent of delivery of possession to Metta Pentamma and placing reliance on the said endorsement dt.29.11.2008, that it is stressed upon that by virtue of Ex.A1 / Patta that the

Plaintiff has been put into possession and enjoyment of the same and hence the municipal authorities or the Defendants does not have any manner of right to dispossess her.

34.Proceeding further, to rebut the case of the Plaintiffs, the Town planning supervisors, working under Srikakulam Municipality got filed their chief affidavits as DW1 and DW2 but however subsequently as they failed to appear before this Court, due to transfer or otherwise, their evidence was closed. This being so, N.Appalaraju town Planning supervisor also filed his chief affidavit before this Court subsequently and was examined as DW3 and reiterated the entire contents as in their written statement.

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35.This being so, it needs concern that it was specifically confronted to

DW3 if he has filed any authorization letter before this Court or sought for any permission to be examined on behalf of the 1st Defendant. Though

DW1 contended that he filed the authorization report, apparently no such document was filed nor any such permission sought for from this Court.

36.It is also to be noted here that it is specifically confronted during his cross examination that the present suit schedule plot Number is 466, but however it is brought to his notice that in his entire chief affidavit, the schedule property is mentioned as Plot No.471. However inspite of specifically confronting the same, no steps whatsoever were taken by the 1st Defendant to clarify the said aspect.

37.It is further elicited during the cross examination of DW3 that the lay out was approved in the year 1983. However he pleaded ignorance if it was approved vide L.P.No.89/1975 and no such Layout copy is filed before this

Court. As per DW3, Srikakulam Municipality was established in the year 1865 itself and he pleaded ignorance if the schedule property in layout was fallen under Fazulbegpeta panchayat upto 1975. He pleaded ignorance as to the extent of the land remaining after converting Plots in survey numbers 99, 100, 140 and 149 of Fazulbegpeta. As per DW3, no pattas were issued 24 to anyone in survey number 100 as per their records. However he pleaded ignorance as to the total extent of survey number 100, the number of sub- divisions present in the said survey number and its extent.

38.This being so, to further substantiate their contention that the Plaintiff was paying property tax and also Electricity bills, Ex.A3 to Ex.A9 which are the property tax receipts filed by the Plaintiff were confronted to the witness who revealed that he cannot say if the same were issued by Srikakulam

Municipality or not. Admittedly without the consent of Srikakulam

Municipality, the electricity Department will grant service connection and denied that no such connection will be granted without the permission of the Municipality. With this regard, it is the contention of DW3 that the revenue records and the electricity bills will not confer any right over the schedule property and they are generated to enable proper administration only.

39.As per DW3, the Srikakulam Municipality will have right over the gifted plots, road, parks and open spaces. He further submitted that as per

GOMs no.114 dated 14.03.2006 all the roads, open spaces, parks etc., which are marked in accordance with these rules in the layout approved under sub section 185 shall automatically stand transferred free of cost and shall vest with Municipality free from all encumbrances. Though he further contended that any such reserve sites gifted to the Municipality need not be 25 registered and are exempted, admittedly there is no such GO existing. This being so, it is suggested that the Municipality is having right over the reserve sites only and not against any plots. Here it is to be appreciated that there is no clarity given as to what the Plaintiff meant by reserve sites.

In fact as per the Defendant, the said reserve sites are few plots which are irregular bits and plots gifted to the Municipality. The said suggestion in fact refers that the Plaintiff is admitting the right of the Municipality over the reserve sites but the said suggestion lacked clarity as to what he meant by reserve sites, neither the details of the said plots specified in his chief affidavit.

40.Admittedly Ramakrishna Co-operative Society furnished documents to them in respect of land acquired to them, but they did not file any such document before this Court. He does not have any idea if any land under survey number 100 is not acquired by the said Society. He is not aware if any letter is issued by their department by the Town Planning Officer cum public information officer, Srikakulam to G.Savitramma, dated 27.12.2014 under Right to Information Act.

41.In fact as per PW1, Rajagopalarao handed over vacant possession of the suit schedule property to the 1st Plaintiff and also gave endorsement to that effect on the backside of the Patta / Ex.A1. It is in view of the said endorsement, it is stressed upon that the town surveyor on their application, 26 visited the site, verified the boundaries and put them into possession of the same. However as per DW3, though he admitted that RajaGopalarao, is their town planning officer, he pleaded ignorance if had handed over any possession to the Plaintiff. This being so, it is astonishing to note that as per

DW3, the schedule property is a vacant site. If that were so, it is highly astonishing to note how then the Defendants sought for the relief of mandatory injunction seeking to dismantle the existing structures. Thus it is apparent that DW3 is not having clear picture of the case facts.

42.Another Town surveyor was examined as DW4, who also filed his chief affidavit reiterating the facts as in their written statement. However during cross examination he too when confronted revealed that he visited the schedule property and it is a vacant site bearing number 466. Survey number 100 is divided into 6 sub divisions but he does not know the individual extent of the property. As per SLR survey number 100/6 is shown as poramboke and ralla gutta and admittedly poramboke lands are government lands. He is not aware if A.Satyamurthy, the then TPO,

Srikakulam municipality furnished any information under RTI Act, that there is no open place covered under survey number 100.

43.The 1st Defendant further got examined the Town Planning Building

Inspector as DW5 who filed his chief affidavit on parallel lines with that of the testimony of DW1 to DW4 reiterating that the schedule property is part of reserve sites gifted to Municipality by Sri Rama Krishna Government 27

Employee Cooperative House Building Society and as such the

Government does not have any right or authority for granting of any patta for the said sites. While praying to dismiss the suit filed by Plaintiffs / Metta

Pentamma and others, prayed to declare their title and grant such other reliefs.

44.During the course of cross examination, when confronted, DW4 revealed that the layout was approved vide LP No.577/1983 by Srikakulam

Municipality. However it is suggested that the 1st Plan approval for the layout in survey no.99, 100, 139, 140 and 142 of Fazulbegpeta was under

LP No.89/1975 by Gujarathipeta Gram Panchayat. But apparently except

posing suggestion, no such document filed before this Court to suffice their stand. DW4 pleaded ignorance if land in Sy.No.100/6 is shown in revenue records as rocky area and if the Government is having title over the same.

Admittedly in para No.5 of plaint in OS 227/2011, it is mentioned that “Plaint schedule property therein does not belong to the Government and hence it is crystal clear that revenue authorities without having any right over the layout gifted plots has issued pattas by revenue authority in favour of the

Plaintiff are liable to be canceled”. It is further elicited that in general practice, plot numbers will not be allotted to the open sites and reserve sites. Thus based on the said pleading, it is contended that the Defendants are admitting the issuance of the patta. However it cannot be ignored that 28 they are challenging the very patta itself and hence, even assuming the same, it will not exonerate the Plaintiff of the burden to suffice that it was genuinely issued and is a valid and binding one.

45.It is at this juncture after getting examined around five witnesses on their behalf, that the Srikakulam municipality while getting examined DW6 who is the present Town Planning Officer has taken recourse for filing of the documents on their behalf. In fact the chief affidavit of DW6 was also on parallel lines with that of the earlier witnesses in all material particulars, however through this witness Ex.B1 to Ex.B17 were got marked.

46.This being so, during the course of cross examination of DW6, it is elicited that in general when patta is granted by the government, that the possession will be handedover to them through revenue surveyor. One

Rajagopalarao was working as Town Surveyor during the year 1986, however the witness volunteered that in case were patta is granted by the

Municipality that possession of the said property will be handed over by their surveyor. Admittedly as appearing on Ex.A1 / Patta, there is an endorsement made and signed by S.Rajagopalarao, Town Surveyor,

Srikakulam dt.29.11.2008 to the effect that physical possession was handed over. However DW6 contended that they did not hand over any possession of the same. Admittedly as appearing from Ex.A2, possession certificate 29 was also issued in the name of Metta Pentamma for which this witness volunteered that the said certificate was issued by the revenue officials and not concerned with the municipal office. He further added that when they enquired regarding Ex.A2, that the revenue authorities informed them that they did not issue any such patta.

47.When Ex.A3 and Ex.A4 tax receipts were confronted to the witness, he admitted that the same seems to have been issued by the municipality but however doubted if the said receipts correspond to the schedule property. Admittedly assessment number will be given to any property where there is any house constructed and that in general when house is in occupation, then only that property tax will be levied after allotting assessment number. This being so, his contention is that the tax matters will be looked after by another revenue department.

48.It is also pertinent to note that it was confronted to DW6 that layout was approved in the year 1986 for which the witness replied that it was approved vide LP No.577/1983. No Gazettee Notification was issued after the approval of the layout for which the witness contended that no such

Gazettee notification is required. At this juncture it is again stressed upon that once the panchayat was converted to municipality, that a Gazettee notification has to be issued for which DW6 replied that Fazulbegpeta was 30 covered under the Municipality from the beginning. Admittedly part of the survey number 100 in Fazulbegpeta in the revenue records is mentioned as canal and as further admitted there is no right to alienate or transfer canal lands. It is further admitted that the revenue maps pertaining to

Fazulbegpeta reflect some of the lands shown as D Patta lands, LC lands,

B.T roads, rasta, business sites, tanks and canals for which the witness clarified that the said map confronted show the entire Fazulbegpeta village and not survey number 100 alone.

49. This being so, the layout plan filed was confronted to the witness who admitted that the total number of plots is mentioned as 343 at the bottom of layout. However the witness volunteered that on the upper left side column, the plan bears plot number 533 and hence it is not correct that there are only 343 plots. Even considering the said plan, definitely it reflects to be containing plots of more than 500 in number.

50.The testimony of DW6 was consistent throughout insisting upon the point that the Society has agreed to gift to the municipality 13 plots, 18 regular bits and 5 reserve sites of total extent of 8702.83 Sq.Yards and admittedly it is the Municipality which will be having right over the said plots.

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51. Admittedly Ex.B3 / Plan Approval Proceedings dt.02.01.1984, the subject mentioned in the said letter refers Sy.No.100 / part in favour of Sri

Rama Krishna Employees Cooperative House Building Society for which the witness volunteered that there are three more enclosures with the said proceedings. Admittedly there is a stipulation that the lands gifted to the

Municipality must be by way of Registered Gift Deed.

52.Admittedly in Ex.B4 pertaining to the letter of acceptance of gift, the subject reads regarding roads, open spaces etc., and there is no mention of irregular bits or plots as alleged by them. Admittedly they did not submit any copy of the gift deed before this Court but however the witness volunteered that as per G.O.No.72 dt.20.02.2022 / Ex.B5, it reflects that even in the absence of execution of any gift deed that the open spaces and roads etc., shall belong to the Municipality.

53.By confronting Ex.A15 to the said witness / DW6, it is elicited that as appearing from the entries made in the said register, pattas in sy.no.100-P shown to have been granted to six persons and that the entries made in the said register is attested by Deputy Tahsildar, Srikakulam. At this juncture the witness further volunteered that the municipal authorities through the

District Collector has addressed a letter to the RDO who verified the records and gave a report that no D form patta was granted to Metta

Pentamma / Plaintiff in OS 143/2010.

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54. Issue No.2 in OS 143/2010 and Issue No.4 and 5 in OS 227/2011 :

Whether the Tahsildar, Srikakulam issue D patta for the house site in favour of the 1st Defendant ?

Whether the plaint schedule property is a government Poramboke land ?

55.In fact both the issues No.2 in OS 143/2010 and Issue No.5 in OS 227/2011 are one and the same and since Issue No.4 in OS 227/2011 is interlinked with both the issues, hence for brevity sake discussed together.

56.Culminating the oral evidence adduced on record as discussed above, the crucial aspects which needs consideration, is that though the main suit in OS 143/2010 was originally filed by Metta Pentamma and her son, by the time of commencement of trial, Metta Pentamma was no more and hence her legal representatives were impleaded on to record and the son of Metta Pentamma namely Metta Syamalarao / 2nd Plaintiff was got examined as PW1. This being so, though they placed reliance upon Ex.A3 /

House Tax Demand Notice, Ex.A4 and Ex.A5, House tax receipts, Ex.A6 to

Ex.A10 / electricity bills cum receipts, as established the revenue records or such entries may at the most refer to the aspect of the concerned paying the property taxes and the electricity bills, however the revenue records 33 cannot be said to confer any right or title of the person in whose name the said bills are paid. Thus these may aid the Plaintiff in supporting their version to the extent of dealing with the schedule property but cannot aid in drawing any reference as to the granting of the patta or their alleged right or title.

57.The crucial documents on record stressed upon by the Plaintiffs are

Ex.A1 / House site patta dt.21.04.1986 and Ex.A2/ Original House site confirmation deed dt.24.02.2009. It is sternly stressed upon these documents saying that the plaintiff, being houseless poor lady, was granted patta under Ex.A1 and since then she has been in peaceful possession and enjoyment of the said property. It is time and again contended by the

Defendants that no such patta was granted to the Plaintiff and further the

Defendant no.3 / Tahsildar, Srikakulam filed their written statement in OS 227/2011 denying granting of any house site patta to the Plaintiff as alleged.

It is further stressed upon that the pattas are forged and the Defendants 4 and 5 does not have any claim or right over the schedule property. It is also pertinent to note that they further submitted that the land belongs to

Municipality by virtue of the gift deed executed by the Society and that the other Defendants has nothing to do with it and denied the right and title of the Plaintiff / Metta Pentamma. Though it is apparent that except filing their written statement that they did not take any active part during the course of 34 trial, the fact remains the Defendant / Tahsildar denying the Government to have granted any patta to the Plaintiff as alleged.

58.Undoubtedly when it is the contention of the Plaintiff that she has been granted Ex.A1 / Patta and contending herself to be in possession and enjoyment of the schedule property by virtue of the said document, the burden of proof lies upon her to substantiate their stand. Merely because the Government failed to adduce any rebuttal evidence, that does not infer that the said document stood unchallenged. Further it cannot be ignored that the case of the Plaintiff must stand or fall on their own and not upon the strength or weakness of the Defendant. Further it cannot be ignored that when it is stand of the Defendant / Municipality that the schedule property formed part of approved layout and that it is one of the plots which is gifted to it by Sri Rama Krishna Government Employees Cooperative House

Building Society, and is claiming right and title over the same, it becomes imperative upon the Plaintiff to further suffice the genuinety of the said document. Thus definitely the burden of proof lying on the Plaintiff is stronger to establish that Ex.A1 is a genuine patta granted to her as alleged.

59.With this regard, apart from the oral testimony of PW2, who is her neighbour, they placed reliance on Ex.A14 which is the attested copy of 35

House site patta register for the year 1986 to 1996, obtained under RTI Act and Ex.A15 which is the relevant entry in page No.18, serial no.5 in Ex.A14 which is the details pertaining to Metta Pentamma. By stressing upon these documents, it is tried to be impressed upon that there is also relevant entry of granting of patta in the name of Metta Pentamma even as per the revenue records ie., house site patta register during the relevant period.

60.They further got examined PW4 / Administrative Officer, to speak with regard to Ex.A14 and Ex.A15. As appearing from the record, the said witness brought along with him the original house site patta register corresponding to Ex.A14 and resting upon the said document it is contended that Ex.A1 / Patta is a genuine document and asserted the right and title of Metta Pentamma over the schedule property.

61.However it does not escape notice of this Court that during the cross examination of PW4, he admitted that he issued Ex.A14 as per the available record but he did not verify each and every entry relating to the respective pattas. The same admission may not carry much weightage, but it is further elicited from him that he verified the page numbers of Ex.A14

before issuing the same. Admittedly page no.106 is not mentioned in

Ex.A14. Further as admitted, except the entry relating to Metta Pentamma 36 (PW1), all the other entries in Ex.A14 does not contain the block number, i.e., except page no.18 of Ex.A14. Admittedly as per Ex.A14, the total extent of site mentioned across the name of PW1 is shown as Ac.0.02 cents. Thus in all, it was contended that Ex.A14 is not the true extract of the house site patta register and hence that no reliance can be placed on the same, which is however denied. But at the same time, it cannot be ignored that definitely as elicited during the cross examination of PW4, that there is discrepancy in the details appearing in the original register to that of

Ex.A14. However the crucial aspect which needs appraisal is whether in view of any such discrepancies as elicited, the very genuinety of the entry made in the register be doubted. However the same cannot be equated to say that the said contents stood admitted or proved. It is to be further appreciated that as stressed upon by the Defendant counsel, the entry regarding the block number is kept blank in the original register but however Ex.A15, relevant entry is containing the said number. It would have aided the Court if in fact a photostat copy of the relevant page from the original register could have been further obtained to enable to appreciate the said fact elicited as if the block number is really kept blank, it would definitely raise a doubt as to the details of the site which is alleged to have been granted to be Plaintiff. However it further goes to show that as elicited, as per Ex.A15, it is only an extent of Ac.0.02 cents of land which has been granted patta to the Plaintiff.

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62.It is to be noted that though the Plaintiff made endeavor to summon

PW3 / Tahsildar and also for cause production of the original patta register, when he entered into the witness box, he contended that no such patta was granted by them and also denied Ex.A2 to be issued by them. Further it is submitted that pages 13 and 14 of the said register are missing. Thus it is the case of the Plaintiffs that only to support the case of the Government that the said pages were intentionally removed from the register, which however he denied. Admittedly as per the original register their department granted patta to one Rakoti Krishnamma w/o.Ganesh in respect of plot number 264 in survey number 100 P. The said recital is found place in page no.16 of Ex.A15 register. Admittedly page no.17 of Ex.A15 was strike off and the same page in original of Ex.A15 also strike off. The page number 20 of Ex.A15 is shown as page no.15 in original register. The page no.21 and 22 in Ex.A15 is page 16 in original register and are same. The page nos 23 and 24 of Ex.A15 are strike off and the same are shown in the original page no.18 and 19. He verified all the pages of Ex.A15 by comparing with the original register except pages no.13 and 14, the remaining pages of Ex.A15 are the same with the original register. He does not have any personal knowledge with regard to the suit transactions and he was deposing only based on the record. Admittedly as per the original of

Ex.A15, that government issued house site pattas to Seepana Chinnammi,

Gurugubelli Ramu in survey number 100 of Fazulbegpeta, which is the 38 survey number in which the Plaintiff is contending herself to have been granted patta. As per PW3, the document showing the layout plan issued by the Srikakulam Municipality does not contain the survey number 100.

63.It does not escape notice that in fact PW3, when confronted with

Ex.A1 / Patta denied the same to have been issued by them. It is as PW3 did not support their case, the Plaintiff got summoned PW4 / Administrative

Officer who earlier worked as Tahsildar of Srikakulam for the period April, 2013 to February, 2014. But however in view of the discrepancies which are elicited during their cross examination, it definitely raises a doubt as to the genuinity or otherwise of the relevant entries and Ex.A14 and Ex.A15 itself.

64.This being so, the other crucial witness who was got examined on behalf of the Plaintiffs is the surveyor / S.Rajagopalarao who is said to have made endorsement on Ex.A1 / Patta to the extent of delivery of possession to Metta Pentamma and placing reliance on the said endorsement dt.29.11.2008, that it is stressed upon that by virtue of Ex.A1 / Patta that the

Plaintiff has been put into possession and enjoyment of the same and hence the municipal authorities or the Defendants does not have any manner of right to dispossess her. In fact when Ex.A1 was confronted to

CW1, he identified the endorsement of “Physical possession handed over” dt.29.11.2008 to be in his handwriting and categorically admitted that 39 pursuant to the said endorsement that he also handed over possession of schedule property to Metta Pentamma. It is further elicited from him that it is pursuant to the directions of the municipal commissioner that he visited the schedule property and handed over the same. He further elaborated that the Municipal Commissioner enquired with the Tahsildar, Srikakulam with regard to the genuinety of issuance of Ex.A1 patta and only on satisfaction with that regard, that directions for delivery of the possession were given to him. Though he did not not verify the patta register, in the custody of

Thasildar, he identified the schedule property based on the boundaries mentioned in it and effected delivery.

65.This being so, during the course of cross examination, it is elicited from him that to his knowledge, the entire land situated in sy.no.100 of

Fazulbegpeta is a Government land as per the revenue records. Certified copy of SFA register was confronted to this witness who admitted that as per the said extract, the land in sy.no.100 is shown to be divided into six parts and only survey no.100/6 is shown as poramboke land and thus that the entire land in sy.no.100 is not Government land or Poramboke land as alleged by him. The certified copy of SFA was got marked as Ex.B20 through CW1. In fact objection was taken by the counsel for the Plaintiff on the ground that the said document confronted is the certified copy of an attested document produced before this Court and since the attested 40 document itself is a secondary evidence that certified copy of the same is not admissible in evidence. Thus definitely it needs concern if the certified copy of an attested document filed before another Court and be considered as a secondary evidence or not.

66.Keeping this aspect on one side, even if the relevant portion in

Ex.A14 is to be appreciated, the extent of schedule property is shown as

Ac.0.02 cents while it is described as 282 Sq.Yards in Ex.A1 / Patta. In the layout column, the details is entered as Sy.No.100/part, 38 feet x 67 feet which equal to around 282 Sq.Yards. However it does not escape notice of this Court that during the course of cross examination of PW1 when confronted he revealed that the suit schedule property of an extent of

Ac.0.05 cents. Undoubtedly even in the schedule property appended to the plaint, the measurements are shown as 38 x 67 feet which is tallying with the documents on record but the contention of PW1 with regard to the total extent needs concern. It is also not out of place to mention here that as elicited from PW1, his mother in law, Gurugubelli Savitramma is residing towards eastern side plot no.465 of suit schedule property, towards southern side and it is a vacant site. During further cross examination, he revealed that his mother Pentamma and mother in law Gurugubelli

Savitramma constructed one house in their respective patta land. To be more specific, when confronted regarding Ex.A3 to Ex.A10 that they does 41 not contain any door number of the property, he further revealed that there is no such column in the said exhibits but further revealed that the door number of his mother and mother in law is one and the same and it is one house and one electricity service connection obtained by both of them. He further revealed that though his mother in law applied for plan approval to the municipality, that the same was refused by it as it is a patta site. If the said facts revealed by PW1 were to be taken into consideration, it is clear that any assessment of tax pertaining to the schedule property as alleged by PW1, pertains to the schedule property inclusive of Plot No.465 of his mother in law. When the contention of the plaintiff goes to show that both his mother and mother in law were granted pattas separately, how they clubbed both the sites to one and constructed house, while preferring separate suits on the same assessment number and electricity service connection claiming possession and enjoyment over the said property.

67.The boundaries as mentioned in the Ex.A1 / patta also needs careful appraisal. Perusing the same, it is described as to the East is plot no.465, west is private land, to the north is road and to the south is plot no.408.

68.Thus it is clear that the boundaries are shown to be the plots which are part of the layout as contended by the Municipality. In these circumstances, it definitely reflect that in fact the schedule property also 42 forms part of the layout. In fact there is no direct or cogent evidence adduced to show that the schedule property formed part of the poramboke land to say that the Government is having any right to grant such patta. On the other hand as already discussed above, the Tahsildar who was examined as PW3 denied having issued any such patta. In these circumstances, merely based on Ex.A14 and Ex.A15 entries in the house site patta register, that too which is effected by discrepancies, no conclusion can be drawn regarding the fact that the schedule property is part of poramboke land. Hence issue no.4 in OS.227/2011 is answered accordingly against the Plaintiff.

69.This being so, definitely when there is no cogent evidence to show that Ex.A1 patta is granted to the Plaintiff in the manner as alleged, and moreover since PW3 / Tahsildar himself denied having issued any such patta and since the boundaries probablise the stand taken by the

Defendant / Municipality that it formed part of the layout, it can be said that the Plaintiff failed to probablise the fact that Ex.A1 / patta was granted to

Metta Pentamma in the manner as alleged. Thus these issue no.5 in

OS.227/2011 and issue no.2 in OS.143/2010 are answered accordingly.

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70. Issue No.1 in OS 227/2011 :-

Whether the Plaintiff is entitled for the relief of declaration of title and for possession as prayed for ?

71.Before adverting into the other details, I deem it necessary to mention here that in fact the Municipality has preferred I.A.1744/2015 seeking to implead Sri Rama Krishna Government Employees Cooperative House

Building Society as Defendant no.7 on the ground that they are the necessary and proper parties to the suit since as per their contention it is the said Society which has gifted the said plots to them. However as appearing from record, as no steps were taken for service of notices to the proposed parties, that the said petition stood dismissed for default against them. However the said petition was allowed on 19.09.2016 and subsequently amendment was carried out and neat copy filed. However apparently the Municipality did not choose to seek for any steps for issuing summons to them or secure their presence. As appearing from record, in fact the main relief is prayed for against Defendants 1, 2 and 6 only in

OS.227/2011 and even after carrying out amendment no relief whatsoever

was sought for against Defendant no.7, thus apparently he was intended to be impleaded as proforma Defendant only. Apparently without tendering any notices upon Defendant no.7 i.e, Society and though the petition was dismissed for default against the Society and allowed only against the 44 remaining respondents, somehow the Municipality amended the suit including the name of the Society as Defendant no.7. Keeping this aspect on one side, the Municipality did not choose to take notice to him and it appears that they just wanted to add him as proforma party and in fact no relief is claimed against Society. Considering all, the suit against the Society is liable to be dismissed and shall remain against the remaining Defendants only in OS.227/2011.

72.Coming to the facts of the case, it is the contention of the Municipality that Sri Rama Krishna Government Employees Cooperative House Building

Society which was approved by the Municipality vide LP No.577/1983.

However the Director of Town and Country Planning, A. P. Hyderabad while granting approval of the layout laid down the condition that certain irregular bits and open spaces be gifted to the Municipality for public utility purpose.

Accordingly the Society gifted 13 plots and 8 irregular bits measuring total extent of 8702.83 Sq.Yards and 6 reserved open spaces as reserved sites.

Thus that the said open spaces and reserved sites are vested with the municipality and that except them, the Government also do not have any right for granting any pattas.

73.It is to be noted here that DW3 to DW6 working in various capacities in Srikakulam Municipality were examined on behalf of them, who all together reiterated regarding the right of the municipality. However it is to be 45 noted here that till the time of examining DW6, the Municipality did not choose to submit any documents on their behalf. Admittedly there are other cases filed by the Defendants against some other persons who are claiming to have been granted pattas by the government and stressed upon the point that the government also filed written statements in the said cases reporting that no such pattas were granted by them. To substantiate their contention, the certified copies of the written statements filed in OS 433/2010, OS 283/2012, OS 231/2011, OS 459/2011, OS 227/2011, OS 225/2011, OS 379/2010, OS 394/010, OS 324/2010 and OS 285/2012 were got marked as Ex.B7 to Ex.B16. These documents may at the most support their contention to the extent that the government denied having granted any pattas by them as alleged but however it cannot be ignored that burden of proof lies upon the Defendants to establish that such plots and more specifically the suit schedule property is vested upon them by virtue of any alleged gift deed executed by Sri Rama Krishna Government Employees

Cooperative House Building Society.

74.With this regard, Ex.B1 is the certified copy of layout plan of Sri

Rama Krishna Government Employees Cooperative House Building

Society. It is in light of the said layout plan, it is mentioned that upon the directions of Director Town and Country Planning that the schedule property and other sites were gifted to the municipality. Undoubtedly, there is a policy 46 for gifting of open places, irregular bits etc., to the municipality for public utility purpose which plots shall be utilized for the purpose of construction of roads, parks, library etc., Thus the said contention of any such stipulation been laid down by Director, Town and country planning need not be doubted. However at the same time, it cannot be ignored that unless and until any cogent evidence is adduced on record with regard to the details of the irregular bits or open spaces said to have been gifted to the municipality, no conclusion can be drawn with regard to their right or title. It is to be appreciated here that to suffice their stand, they placed reliance on

Ex.B3 which is certified copy of letter addressed by DW6 to the Municipal

Commissioner, Srikakulam Municipality dt.06.1.1984 along with annexure-I which are the directions given by Director of Town and Country Planning.

Ex.B4 is the certified copy of the attested true copy of letter addressed by

Sri Rama Krishna Government Employees Cooperative House Building

Society to Commissioner, Srikakulam Municipality wherein it is specifically mentioned that they are enclosing the gift deed and the receipt of the same may be acknowledged. All these documents undoubtedly refer to the fact that the procedure has been duly followed wherein certain plots were gifted to the municipality. All said and done, the fact which remains to be established is that the suit schedule property is one of such plots which is gifted to the municipality with which regard there is no direct evidence nor any such gift deed produced before this Court.

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75.It is to be noted here that as per DW6, he contended that Ex.B5 /

GOMs.No.72 and Ex.B6 / GO.Rt.No.114, that such reserved sites shall vest upon the Municipality and registration of such document is exempted.

However during further cross examination, they admitted that there is no such provision incorporated with regard to exemption from registration.

However appreciating Ex.B5 / GOMs NO.72, there is no such exemption laid down but however it contains the guidelines that such allotted plots shall strictly be utilized for public utility purpose only which shall be strictly complied and in the alternative on remuneration be transferred for establishing shopping complexes etc., provided that they are also initiated for the betterment of the public.

76.The crucial point to be considered here is GO.Rt.No.114 dt.14.03.2006 wherein in exercise of powers conferred by (1) of Sec.326 of

Andhra Pradesh Municipalities Act, 1965, the Governor of Andhra Pradesh made the following amendment to the Andhra Pradesh Municipalities (Layout) Rules 1970, which reads as under :-

77.For Rule 14 of the said rules the following rule shall be substituted namely :- “14 – All the roads and open spaces such as parks and play grounds earmarked in accordance with these rules in a layout which is approved 48 under Sub Section (3) and Sec.185 shall automatically stand transferred free of cost and vest with the municipal counsel, free from all encumbrances. After such vesting the municipality shall maintain all such open spaces for the purposes of which they have been earmarked.

78.It is by placing reliance on the said GO, that it is insisted by the

Municipality that no such registration is required. However it cannot be ignored that the said GO is dated 14.03.2006 and there is no mandate that it is having any retrospective effect. Further it cannot be ignored as per the

Municipality, the layout pertained to the year 1983 and was approved vide

LP.No.577/1983 and in such circumstances, it is imperative upon the

municipality to submit relevant documents before this Court by virtue of which they are contending themselves to have acquired right over the same. Ex.B19 is the original letter addressed by the Society informing forwarding of the gift deed as mandated. But as already mentioned above, the same may, pave way to infer the genuinety of the contention taken by the Municipality with regard to the gifting of plots by the said Society.

However in the absence of producing any such gift deed before this Court containing the details of the plots gifted, no advantage flows to the

Defendant no.1.

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79.Ex.B17 is another crucial document which is certified copy of the complaint addressed to the Collector, Srikakulam pertaining to allegations against Tahsildar, Srikakulam, perusal of which reflects that some irregularities crept in where under there was no proper record with regard to the grant of pattas entered in the relevant records and while some of them are contending to have been granted pattas, in fact no such entries were found in any of the relevant records. Whatever it be, it cannot be ignored that it might be a complaint seeking necessary action against the Tahsildar presented before Lokayukta but however that does not come to the aid of the Defendant in any manner for appreciating factum of his alleged right or title over the schedule property.

80.Thus in all, it can be said that there is no cogent and convincing evidence adduced on record to show the details of the sites which are alleged to have been vested upon the municipality in the manner as alleged neither any such registered gift deed filed before this Court to infer the procedure to have been duly followed. Thus in all, it can be said that the

Defendant no.1 failed to suffice his contentions with regard to his right and title over the schedule property and in these circumstances, definitely he is not entitled for the relief of declaration of title as prayed for. This issue is answered accordingly.

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81. Issue No.2 and 3 in OS 227/2011 :- 2.Whether the Plaintiff is entitled for the relief of mandatory injunction as prayed for ?

3.Whether the Plaintiff is entitled for the relief of permanent injunction as prayed for ?

82.In view of Issue NO.1 in OS 227/2011 been answered against the municipality holding that the Municipality is not entitled for the declaration of title or for the recovery of possession, as a sequel definitely they are not entitled for the relief of mandatory injunction or permanent injunction as prayed for. These issues are answered accordingly.

83. ISSUE NO.1 IN OS.143/2010 :-

In light of the discussion made above, apparently the Plaintiffs failed to suffice their stand regarding the genuinety or otherwise of the patta issued in their favour as the Government in their written statement clearly denied the same and so also PW3 / Tahsildar denied any such patta been issued by them. This being so, considering the oral and documentary evidence on record, it was in light of the issues answered above, it was held that the Plaintiff failed to suffice his stand.

51

84.Keeping these aspects on one side, proceeding further, if the Plaintiff is entitled for the relief of permanent injunction as prayed for, as already discussed above, by examining PW4, it was elicited that he personally visited the site, measured and delivered physical possession of the same to

Metta Pentamma. They further contended that later on their application that house site confirmation deed vide Ex.A2 was also granted thereby enabling them to construct house in the said site and that since then they have been in possession and enjoyment of the same.

85.PW1 further placed reliance on Ex.A3 to Ex.A10, Ex.A12 and Ex.A13, which are all the tax receipts, electricity bills and demand notices. Thus stressed upon that their property is assessed and house tax been levied.

This being so, it is to be appreciated here that though they submitted that

Assessment no.1085018807 was granted to the property and that they have been paying municipal tax as well, the said tax receipts does not contain any particulars with regard to the door number or plot number of the said property to apprecaite that the assessment number as alleged by them or the said tax receipts pertain to the schedule property only.

86.Added to it though they also submitted that on their application that the electricity department granted service connection no.13110-1601- 044984 and also submitted the electricity demand notices and bills, so also 52 some those documents does not anywhere contain the details of the schedule property to say that the said demand notices or receipts pertain to the said service connection. Here it is apt to refer that as elicited from PW1, that they constructed one house in the schedule property and the plot of

Gurugubelli Savitramma / mother in law of PW1. In these circumstances, when it is the specific case of PW1 that the house was constructed covering the property of Metta Pentamma and Gurugubelli Savitramma, it becomes imperative to furnish the said details with precision as to the details furnished to the concerned authorities also while seeking for property assessment and obtaining service connection. Apparently these details are lacking.

87.Further as contended by the defendant no.1 / Municipality, the boundaries of Plot No.466 are shown to be Plot bearing No.408, 465, private land and road which all probablize the contention of the municipality that the schedule property is part of the layout. In the absence of establishing to the contrary, by merely resting their case on the electricity bills and the property tax, the plaintiff cannot seek the relief of permanent injunction. It is more pertinent to note here that the defendant no.1 throughout is disputing the genuinety of patta and claiming the same to have been gifted to them by the society and moreover the Government also filed the written statement denying issuance of any such patta as alleged, 53 definitely their title is challenged and when there is a cloud over the title by virtue of which the plaintiff is claiming themselves to have been in possession and enjoyment of the schedule property, definitely bare suit for injunction does not lie.

88.I deem it pertinent to refer to the Judgment of their Lordship in

Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors dt.25 March, 2008 Equivalent citations: AIR 2008 SUPREME COURT 2033 wherein ti was observed as under :-

89.The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled.

90.11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

91.11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, 54 if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

92.11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction.

Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

93.To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding 55 on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for 56 injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

94.Thus it is clear that when there is definitely a dispute regarding the title and right over the schedule property, definitely a bare suit for injunction does not lie.

95.Thus considering all, this Court is of considerable opinion that the

Plaintiff is not entitled for the relief of permanent injunction as prayed for.

This issue is answered accordingly.

96. ISSUE NO.3 in OS.143/2010 and ISSUE no. 6 in OS.227/2011 :-

In the result, the suit in OS.143/2010 and OS.227/2011 stands dismissed. In the facts and circumstances of the case, each party do bear their own costs.

Partly typed by me and partly typed to dictation by the Stenographer on my laptop, corrected and pronounced by me in the open Court, this the 9th day of April, 2025.

Sd/- K.V.L.Hima Bindu

Principal Civil Judge (Senior Division),

Srikakulam.

57

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Pla intiffs :

PW1: Metta Syamalarao PW2: Gunnu Chandrayya PW3: S.Dileep Chakravarthi, Tahsildar PW4: Madugula Kaliprasad, Administrative Officer

CW1: S.Rajagopala Rao, Surveyor

For Defe ndants :

DW1: P.Kanaka Rao, Town Planning Supervisor (closed) DW2: Dumpala Tejeswara Rao, Town Planning Supervisor (eschewed) DW3: N.Appalaraju, Town Planning Supervisor DW4: L.Prabhakararao, Town surveyor DW5: U.Bala Bhaskararao, Town Planning Building Inspector DW6: Y.Uma Maheswara Rao, Town Planning Officer

DOCUMENTS MARKED

For P laintiffs :

Ex.A1: Original D patta dated 21.04.1986

Ex.A2: Original House site confirmation deed dated 24.02.2009

Ex.A3: House Tax demand notice dated 27.10.2009

Ex.A4: House Tax receipt for Rs.455/- dated 28.10.2009

Ex.A5: House Tax receipt for Rs.455/- dated – NIL -

Ex.A6: Electricity consumption Bills for SC No.044984 together with five demand notices dated 25.03.2010

Ex.A7: Electricity consumption Bills for SC No.044984 together with five demand notices dated 12.06.2009

Ex.A8: Electricity consumption Bills for SC No.044984 together with five demand notices dated 21.07.2009

Ex.A9: Electricity consumption Bills for SC No.044984 together with five demand notices dated 21.01.2010

Ex.A10 : Electricity consumption Bills for SC No.044984 together with five demand notices dated 09.09.2009 58

Ex.A11 : Acknowledgment for complaint reference No.26229 dated 13.11.2009

Ex.A12 : Electricity consumption Bills for SC.No.044984 dated 09.12.2009

Ex.A13 : Electricity consumption Bills for SC.No.044984 dated 10.11.2009

Ex.A14 : House site pattas register for the year 1986 to 1996 issued by the Tahsildar, Srikakulam.

Ex.A15 : Relevant entry in page No.18 in S.No.5 Ex.A14 register

For D efendants:

Ex.B1: Certified copy of layout plan of Sri Ramakrishna Government employees cooperative house building society.

Ex.B2: Certified copy of written statement of D2 in O.S.229/2011

Ex.B3: Certified copy of Letter addressed to Municipal Commissioner, Srikakulam Municipality, dt.06.01.1984 along with annexure-I

Ex.B4: Letter addressed by Rama Krishna Government employees cooperative house building society limited to the Commissioner, Srikakulam Municipality, dt.16.11.1985

Ex.B5: Certified copy of G.O.Ms.No.72 dated 20.02.2002

Ex.B6: Certified copy of G.O.Rt.No.114, dated 14.03.2006

Ex.B7: Certified copy of written statement of D2 in O.S.433/2010

Ex.B8: Certified copy of written statement of D3 in O.S.283/2012

Ex.B9: Certified copy of written statement of D2 in O.S.231/2011

Ex.B10 : Certified copy of written statement of D2 in O.S.459/2011

Ex.B11 : Certified copy of written statement of D3 in O.S.227/2011

Ex.B12 : Certified copy of written statement of D2 in O.S.255/2011

Ex.B13 : Certified copy of written statement of D2 in O.S.379/2010

Ex.B14 : Certified copy of written statement of D2 in O.S.394/2010

Ex.B15 : Certified copy of written statement of D2 in O.S.324/2010

Ex.B16 : Certified copy of written statement of D4 in O.S.285/2012

Ex.B17 : Certified copy of Letter to collector, Srikakulam dated 09.06.2014 59

Ex.B18 : Proceedings vide ROC No.532/2016 A, dt.04.02.2017 addressed by the Tahsildar to the Commissioner, Srikakulam Municipality.

Ex.B19 : Letter issued by the Secretary, Ramakrishna Government Employees Cooperative House Building Society Limited to Commissioner, Srikakulam Municipality dated 16.11.1985

For Court Witness:

Ex.B20 : Certified Copy of SFA Register (marked subject to objection)

Ex.B21 : Certified Copy of Attested copy of FMB

Sd/- K.V.L.Hima Bindu

Principal Civil Judge (Senior Division),

Srikakulam.

1 /Fair Judgment//

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION),

SRIKAKULAM.

Present :- Smt. K.V.L. Hima Bindu,

Principal Civil Judge (Senior Division),

Srikakulam.

WEDNESDAY, THIS THE 9 TH DAY OF APRIL, 2025

ORIGINAL SUIT No. 143 / 2010 and 227 / 2011

O.S.No.143 / 2010

Between :

1. Metta Pentamma, W/o.late Pentayya, aged 70 years, Household duties resident of Plot No.466, PN colony, Srikakulam town and District.

2. Metta Syamalarao, son of late Pentayya, aged 45 years, unemployee, rest – do -

3. Metta Ramana, S/o.Late Pentayya, aged 44 years, Singuru village, Ponduru Mandalam, Srikakulam District. (Amended as per the Orders of this Court in I.A.988/2011 dated 15.11.2011)

.… Plaintiffs.

And :

1. The Municipal Commissioner, Srikakulam Municipality, Srikakulam town and District.

2. The State of A.P. represented by its District Collector, Srikakulam town.

AND 2

O.S.No.227 / 2011

Between :

The Srikakulam Municipality, represented by Commissioner, Srikakulam Town and District. .… Plaintiff.

And :

1. Metta Pentamma (died)

2. Metta Syamalarao, S/o.late Pentayya, aged 45 years, residing at Plot No.466, P.N.Colony, Srikakulam Town and District.

3. The Tahsildar, Srikakulam Rural Mandal, Srikakulam Town and District.

4. The Revenue Divisional Officer, Srikakulam.

5. The District Collector, Srikakulam,

6. Metta Ramana, S/o.Late Pentayya, aged 44 years, Singuru village, Ponduru Mandalam, Srikakulam District.

(6th Defendant added as LR of D1 as per the Orders in I.A.1288/2012, dated 29.02.2012)

7. Sri Ramakrishna Government Employees Co-Operative House building Society Ltd. D.No.3-3-24/10, Paramkusam Nagar Colony, Flat No.13, Srikakulam Town and District.

(7th Defendant added as necessary party as per the orders in I.A.1744/2015

dated 19.09.2016)

… Defendants.

These suits in OS.143/2010 and OS.227/2011 coming before me on 03.03.2025 for final hearing in the presence of Sri K.Nagabhushana Rao,

Sri H. Ramakrishna, Learned Counsels for Plaintiffs in OS.143/2010; and

Sri D.Pardhasaradhi, Learned Municipal Standing counsel for D1; while D2 remained exparte; 3 and of Sri D.Pardhasaradhi, Learned standing Counsel for the

Plaintiff Municipality in OS.227/2011; Sri K.Nagabhushana Rao, Learned

Counsel for D2 and D6; and Sri M.Vinayabhushana Rao, Government

Pleader for Defendants 3 to 5; 1st Defendant died; and the matters having been heard and stood over for consideration till this day, this Court delivered the following :

C O M M O N J U D G M E N T

1.The present suit in OS.143/2010 is filed seeking the relief of permanent injunction restraining the Defendants, their men and staff from ever interfering with peaceful possession and enjoyment over the Plaint schedule property by the Plaintiff in the Interests of Justice.

2.The plaint averments goes to show that originally the Plaint schedule property and other sites in Fazulbegpeta, PN colony falls under poramboke land and Government also got right over the said poramboke land to issue house site patta to houseless poor people.

3.It is submitted that Plaintiff no.1 being very poor and landless person applied to District Collector, Srikakulam for granting D-patta house site.

Considering the same, the District Collector, Srikakulam directed the

Tahsildar, Srikakulam to conduct enquiry after which the Tahsildar,

Srikakulam issued D-Patta for house site to the Plaintiff no.1 under 4

R.C.No.446/85 A dt.21.04.1986. Since the date of issuing of the D-Patta to

the Plaintiff no.1, she got absolute right, title, possession and enjoyment over the Plaint schedule property. Later the Plaintiffs wanted to construct house in the D-Patta house site i.e., Plaint schedule property and so in the month of November, 2008 applied to the 1st Defendant for fixing the correct boundaries. Thereupon the 1st Defendant deputed Mandal Surveyor, who visited the plaint schedule property on 29.11.2008 along with Municipal records and fixed the boundaries and handed over physical possession to the Plaintiff and accordingly the Town Surveyor, Srikakulam made endorsement on the back side of D patta.

4.It is submitted that after confirmation of the correct boundaries of the

Plaint schedule properties, the Plaintiff filed requisition before R.D.O.

Srikakulam for issuance of house site confirmation letter. Accordingly the

R.D.O, Srikakulam issued house site confirmation letter after verification of the Plaintiff’s D patta and their site. Hence the Plaintiffs started house construction on 12.03.2009 and completed the same by 15th August, 2009 with their hard earned money and also borrowed some amounts from relatives. After completion of the house, the Plaintiff applied for electrical service connection and same was granted vide service number 13110- 1601-044984. The 1st Defendant also visited the Plaint schedule property personally and assessed tax as per the house measurements and allotted 5 assessment number No.1085018807. The Defendants are knowing fully well that the Plaintiffs got house site patta and constructed the house in the said patta site and that they are paying tax to the Srikakulam Municipality.

The 1st Plaintiff got absolute right, title, possession and enjoyment over the

Plaint schedule property and living in the said house since 24 years. As per the policy of the Government, they granted D-patta house site to the 1st

Plaintiff and the Tahsildar, Srikakulam had given several house site pattas in the PN colony to several poor people including the 1st Plaintiff. The

Defendants have no right over the Plaint schedule property and also no right to dispossess the Plaintiffs from the Plaint schedule property. However recently the 1st Defendant is trying to dispossess the Plaintiffs from the

Plaint schedule property due to some political pressure and litigant public to gain his own ends. Without knowing the facts the 1st Defendant personally came to the house of the Plaintiff and threatening the Plaintiffs to dispossess from the Plaint schedule property and also trying to demolish the Plaint schedule property without any right or whatsoever. The Plaintiffs are apprehending that the Defendants will demolish house of the Plaintiffs and dispossess them from the house and in case of such acts, the Plaintiffs will be put to heavy and irreparable loss. The 1st Defendant’s staff are openly proclaiming and threatening in the locality on 24.4.2010 that they will highhandedly trespass into the Plaint schedule property and dispossess the

Plaintiff and demolish the house without any right or whatsoever by using 6 force. The Plaintiffs are very poor and innocent and they cannot resist the acts of the Defendants otherwise than by way of injunction order passed by the Court. Hence the suit is filed for permanent injunction seeking to restrain the Defendants, their men and staff from ever interfering with peaceful possession and enjoyment of the Plaintiff over the Plaint schedule property.

5.Written statement filed by the 1st Defendant denying the Plaint averments and they submitted that Sri Ramakrishna Government

Employees Co-Operative House Building Society formulated layout in an extent of Ac.55.11 ½ cents covered by survey Nos.99, 100, 139, 140 and 142 situated at Fazulbeghpeta PN Colony and the Director of Town and

Country Planning, A.P. Hyderabad has granted tentative approval vide proceedings in LP.No.577/83 subject to observance of certain conditions as laid down in the proceedings. The Defendant submits that one of such condition is that the layout owner has to gift the plot nos.264, 294, 393, 416, 417, 458, 465, 466, 471, 475, 478, 490, 519, 520, 523, 430, 399 and eight irregular bits measuring to a total extent of 8702.83 square yards for public utility purpose. The Defendant Municipality provided infrastructure to the layout, and they are the custodian and possessor of the gifted plots in the said approved layout pursuant to the condition imposed by the Director of

Town and Country Planning, AP, Hyderabad. However the Plaintiff taking advantage of patta said to have been issued by the Revenue Authorities 7 vide No.7446 dt. 24.02.2009, had unauthorizedly constructed RCC roof slabbed house over the gifted plot bearing No.465. The Plaintiff contended that this is a Government land and that the Revenue authorities got issued patta in Plaintiffs favour and the boundaries of the plot in question clearly showed as follows:

East Plot No.465, South: Plot No.408, West: Vacant land, North: Road. As per alleged patta is concern it is numbered 466 but, the Plaintiff constructed house in 465 plot.

6.It is submitted that nowhere it is mentioned with regard to the

Government Land as contended by the Plaintiff. Hence, it is crystal clear that the Revenue Authorities without having any manner of right over the layout gifted plots might have issued pattas. As such their act in issuing pattas in an approved layout is beyond their powers and arbitrary and are liable to be struck down. The allotment of door number is for the purpose of census and payment of property tax and it shall not confer any right of occupation to the Plaintiff in respect of the gifted plots in an approved layout vide LP.No.577/83. While contending that all the allegations might have been motivated by the Plaintiff for the purpose of this suit to satisfy the

Court in getting exparte orders, submitted that the balance of convenience is in favour of Defendant. The factual circumstances explained above, clinchingly establishes that the Plaintiff approached the Court by 8 suppressing the material facts. As such, they are not entitled to seek any sort of relief’s as prayed for in the suit. There is no iota of evidence to show that the schedule property belongs to Government. If at all the Court grants any injunction in favour of the Plaintiff, this Defendant Municipality and public at large will suffer irreparable loss and injury. While contending that the cause of action, boundaries and the particulars of valuation furnished by the Plaintiffs are not true and correct and invented for the purpose of this suit contended that the suit is not maintainable under law and in all prayed to dismiss the suit with exemplary costs.

7.This being so, as first Plaintiff died, Plaintiff no.3 was impleaded as her legal heir as 2nd Plaintiff is already on record and necessary amendment carried out. However the 1st Defendant reported no additional written statement.

8.Upon hearing the rival contentions of both the parties, the following issues were settled for trial by my predecessor :

1) Whether the Plaintiffs are entitled for the relief of Permanent Injunction as prayed for ?

2) Whether the Tahsildar, Srikakulam issued D-Patta for schedule site to the Plaintiff ?

3) To what relief ?

9

9. This being so, the suit in OS.227/2011 is filed for declaration, recovery of possession and mandatory injunction to demolish unauthorized constructions raised by Defendants 1, 2 and 6 in the Plaint Schedule property in the Interests of Justice.

10.The plaint averments goes to show that the Plaintiff is the rightful owner of the suit schedule property and the property is house site bearing

Plot no.466 in S.No.100 part at Fazulbegpeta, Srikakulam which is more fully described in the Plaint schedule.

11.It is submitted that Sri Ramakrishna Government Employees Co-

Operative House Building Society formulated a layout in an extent of

Ac.55.11 ½ cents covered by S.Nos.99, 100, 139, 140 and 142 situated at

Fazulbegpeta, P.N. Colony and the Director of Town and Country Planning,

A.P. Hyderabad has granted tentative approval vide proceedings in LP

No.577/83 subject to observation of certain conditions as laid down in the proceedings. The Plaintiff submits that pursuant to one such condition that the layout owner has gifted the plot Nos.264, 294, 393, 416, 417, 458, 465, 466, 471, 454, 478, 490, 519, 520, 523, 430, 399 and eight irregular bits measuring to a total extent of 8702.83 square yards. On fulfillment of the conditions imposed by the Director of Town and Country planning, the 10 layout was formulated. Srikakulam Municipality has provided infrastructure to the layout and the Plaintiff is the custodian and possessor of the gifted plots in the said approved layout in pursuance of the conditions imposed by the Director of Town and Country Planning, AP, Hyderabad. In fact nobody have got any right or claim over the gifted plots Nos.264, 294, 393, 416, 417, 458, 465, 466, 471, 454, 478, 490, 519, 520, 523, 430, 399 and eight irregular bits measuring to a total extent of 8702.83 square yards in the approved lay out.

12.It is submitted that while the things stood thus, the 1st and 2nd

Defendants taking advantage of open site, created patta with the help of D3 to D5 and constructed slabbed house and claiming right over the gifted plot bearing No.466. The 1st and 2nd Defendants contended that this is a government land and that the revenue authorities got issued patta in her favour. The Plaintiff submits that basing on the alleged patta, the 1st and 2nd

Defendants filed IA No.317/2010 in O.S.143/2010 on the file of this Court and obtained temporary injunction against the Plaintiff. The suit schedule property does not belong to Government land and the Revenue authorities without having any right over the layout gifted plots, issued Patta in favour of the Plaintiff and hence the same is liable to be canceled. The allotment of door number is for the purpose of census and payment of property tax and shall not confer any title or occupation of the 1st and 2nd Defendants in 11 respect of the gifted plots in an approved layout vide LP No.577/83, of 7th

Defendant.

13.The 1st and 2nd Defendants filed O.S.143/2010 for permanent injunction basing on patta which is alleged to be issued by D3 to D5 and hence the Srikakulam Municipality filed this suit for declaration, recovery of possession and mandatory injunction over the plaint schedule property. The 1st and 2nd Defendants are having possession by unauthorized occupation and hence they cannot claim ownership. The layout owner’s i.e., Sri

Ramakrishna Government Employees Co-operative House Building

Society, i.e., 7th Defendant gave the plots as reserve site to Srikakulam

Municipality for public utility purpose only. Since the possession of

Defendants 2 and 6 is that of trespassers, the Municipality has got every right to take back the possession of the Plaint schedule property from the

Defendants. Hence the suit is filed for declaration, recovery of possession and mandatory injunction to demolish unauthorized construction in the

Plaint schedule property.

14.Written Statement is filed by the 2nd Defendant denying the Plaint averments. It is submitted that originally the Plaint schedule property and other sites in Fazulbegpeta from PN colony is Government poraboke land and the Government got right over the said poramboke land. The private 12 persons or the Ramakrishna House Building Society or the Plaintiff does not have any right over the Plaint schedule property and the Government got right to issue house site patta to homeless poor people.

15.It is submitted that during the lifetime of the first Defendant, she applied to District Collector, Srikakulam for granting D-patta house site, who directed the Tahsildar, Srikakulam to conduct enquiry. After enquiry, the

Tahsildar, Srikakulam issued D-Patta house site to the 1st Defendant under

R.C.No.446/85 A dt.21.04.1986 and the said original D-patta is filed in

O.S.143/2010 on the file of this Court which is still pending. Since the date

of issuing of the D-Patta to the 1st Defendant, she got absolute right, title, possession and enjoyment over the Plaint schedule property. Later, the

Defendant No.1 made application to the Tahsildar, Srikakulam for fixing of the boundaries and handing over possession of the Plaint schedule property. On the said requisition of the first Defendant the said Tahsildar,

Srikakulam deputed Mandal Surveyor to fix-up the boundaries and also to handover the physical possession of Plaint schedule property to the first

Defendant. Accordingly the Mandal Surveyor, Srikakulam along with Town

Surveyor, Srikakulam visited the plaint schedule property on 29.11.2008 along with Municipal records and fixed the boundaries and handed over physical possession to the 1st Defendant and the Town Surveyor,

Srikakulam made endorsement on the back side of D patta accordingly.

13

16.It is submitted that after confirmation of the correct boundaries of the

Plaint schedule properties, the first Defendant filed requisition before

R.D.O. Srikakulam for issuance of house site conformation letter.

Accordingly the R.D.O, Srikakulam issued house site confirmation letter after verification of the 1st Defendant D patta and her site and the said house site confirmation letter is also filed in O.S.No.143/2010 on the file of this Court.

17.It is submitted that he started house construction on 12.03.2009 and completed by 15.08.2009 with hard earned money and some amounts also borrowed from relatives. After completion of the house in the Plaint schedule property the 1st Defendant applied for electrical service connection and same was granted by the electrical authorities vide service number 13110-1601-044984. He also made application to the Plaintiff for the assessment of the tax as per the provisions of the Municipal Act.

Accordingly the Plaintiff visited the Plaint schedule property and took the measurements of the property for assessment of tax and the Plaintiff also gave assessment number 1085018807. The Defendants 1 and 2 are paying tax and also electricity bills. The Plaintiff is knowing fully well that the

Defendant No.1 was granted house site patta and constructed the house in the said site and paying of the tax to the Srikakulam Municipality. During the life time of the 1st Defendant she got absolute right, title, possession and 14 enjoyment over the Plaint schedule property till her death and thereafter the 2nd Defendant, who is the son of the Defendant No.1, is her legal heir and got absolute right, title possession and enjoyment over the Plaint schedule.

The Defendants 1 and 2 are enjoying the Plaint schedule property since 24 years unquestioned by anybody including the Plaintiff.

18.The Government policy is to provide houses to homeless poor people and they also constructed houses under Swagruha scheme. As part of the policy, Government of A.P. had given D-patta house site to the 1st

Defendant and also to others nearby in the locality. They also constructed their houses in the patta lands given by the Government. The Plaintiff do not have any right over the Plaint schedule property and also not having any documents to show that the Plaint schedule property belongs to them.

Moreover Ramakrishna House Building Society had not given any gift deeds to the Plaintiff and the Plaintiff have no right to dispossess the

Defendants No.2 from the plaint schedule property and the Plaintiff admitted that the Defendants 3 and 4 having issued D pattas to the first

Defendant. The Plaintiff never questioned the Defendants 1 and 2 even at the time of construction of building nor gave any notice to the Defendants 1 and 2. Due to the political pressure, the Plaintiff is trying to dispossess the

Defendants 1 and 2 from the Plaint schedule property at that stage the

Defendants 1 and 2 filed suit for an injunction in O.S.143/2010 on the file of 15 this Court which was pleased to grant interim injunction in favour of the

Defendants 1 and 2. While contending that Plaintiff is not having any right and not entitled for any relief as prayed for, submitted that there is no cause of action to file the suit and that the suit is barred by limitation and not maintainable, in all prayed to dismiss the suit with costs.

19.Written Statement is filed by the 3rd Defendant which is adopted by the 4th and 5th Defendants vide separate memo.

20.It is submitted that there is no need to cancel the house site patta as they are not issued by this Defendant and there is no need to cancel the forged pattas. The layout plots are gifted for public utility purpose only. The

Plaintiff can take any action under law against the 1st Defendant, and that there is no cause of action for filing the suit against the Defendants 3 to 5 and hence in all prayed to dismiss the suit with costs.

21.After Defendant no.6 was impleaded onto record as legal heir of the deceased 1st Defendant vide orders (6th Defendant added as LR of D1 as per the Orders in I.A.1288/2012, dated 29.02.2012) he marked his appearance and filed memo adopting the written statement of the 2nd

Defendant. D3 to D5 reported no additional written statement on their behalf.

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22.Upon hearing the rival contentions of both the parties, the following issues were settled for trial by my predecessor :

1) Whether the Plaintiff is entitled for declaration of title and for possession as prayed for ?

2) Whether the Plaintiff is entitled for the relief of mandatory injunction as prayed for ?

3) Whether the Plaintiff is entitled for relief of permanent injunction as prayed for ?

4) Whether the Plaint schedule property is government poramboke land ?

5) Whether the Tahsildar, Srikakulam issued D patta for the house site in favour of the 1st Defendant ?

6) To what relief ?

23.This being so, IA.761 /2014 was preferred in OS.143 / 2010 pursuant to which it was directed to conduct joint trial of both the matters OS.143 2010 and OS.2272011. Hence evidence was recorded in OS.143/2010 accordingly and for convenience sake, the parties shall be hereinafter referred as arrayed in OS.143/2010.

24.During the course of trial, the Plaintiff got examined PW1 to PW4 on their behalf and placed reliance on Ex.A1 to Ex.A15. They further got examined CW1 on their behalf. To rebut the case of the Plaintiff, the

Defendants got examined DW1 to DW6 and placed reliance on Ex.B1 to

Ex.B21. (Ex.B20 and Ex.B21 were got marked through CW1).

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25.Heard both sides. Perused material on record.

26.While the suit in OS.143/2010 was filed by the Plaintiff seeking the relief of permanent injunction against the Defendants restraining them from interfering into the peaceful possession and enjoyment of the suit schedule property which is said to have been a D-patta land granted to the Plaintiff,; the Defendant no.1 in OS.143/2010 while denying the same filed suit in

OS.227/2011 seeking the relief of declaration of title and for recovery of

possession contending that in fact the said plot is part of the layout formed by Sri Ramakrishna Government Employees Co-operative House Building

Society at Fazulbegpeta and it is one of the plots gifted to the Srikakulam

Municipality for public utility purpose and further sought for the relief of mandatory injunction seeking to dismantle the existing structures in the suit schedule property and for such other reliefs in the interests of Justice.

27.To substantiate their contention the 2nd Plaintiff got himself examined as PW1 and filed his chief affidavit in lieu of his chief examination and reiterated the entire contents as in the plaint. It is submitted that in fact the first Plaintiff is his mother to whom the Tahsildar has granted D-patta /

Ex.A1 vide R.C.No.446/85 dated 21.04.1986 considering the application made by her since she is a landless poor person. Further that she applied for fixing of the correct boundaries for construction of house and accordingly the Surveyor visited the suit schedule property on 29.11.2008 18 along with municipal records and fixed the boundaries and handed over the physical possession of the same and made endorsement on the backside of the patta to that effect. Later an application was also made for issuance of house site confirmation letter and after verification, the RDO has issued house site confirmation deed / Ex.A2. The Plaintiff accordingly constructed house in the said site and was paying tax and electricity charges also having obtained service connection. Ex.A2 is the house tax demand notice and Ex.A4 and Ex.A5 are the house tax receipts, Ex.A6 to Ex.A10 are the electricity consumption bills together with demand notices and Ex.A12 and

Ex.A13 are the electricity bills. It is also stressed upon that the fact of issuance of patta is also duly entered in the patta register and Ex.A14 is the attested copy of the house site patta register obtained under RTI Act. The relevant entry in the said register in page 18 serial number 5 is marked as

Ex.A15. Thus by placing reliance on the said documents it is stressed upon that the Plaintiffs were in possession and enjoyment of the said patta land from the time patta was granted without any interference and that if at all the Defendants are not restrained from interfering into their possession and enjoyment that they will suffer irreperable loss and injury.

28.To corroborate their contention, they further got examined PW2 who is said to be resident of plot no.473 and staying in the said area from the past 18 years and as such acquainted with the facts of the case. He reiterated that the Plaintiff was issued patta in which she constructed 19 slabbed house and has been in possession and enjoyment of the same.

However it cannot be ignored that as elicited he does not have any knowledge with regard to the facts concerning grant of patta, delivery of possession, etc., and are based on his knowledge that Plaintiffs are staying in the schedule property and hence deposed to that effect.

29.It is to be noted that though the Plaintiff made endeavor to summon

PW3 / Tahsildar and also for cause production of the original patta register.

However, when he entered into the witness box, he contended that no such patta was granted by them and also denied Ex.A2 to be issued by them.

Further it is submitted that pages 13 and 14 of the said register are missing.

Thus it is the case of the Plaintiffs that only to support the case of the

Government that the said pages were intentionally removed from the register, which however he denied. Admittedly as per the original register, their department granted patta to one Rakoti Krishnamma w/o.Ganesh in respect of plot number 264 in survey number 100 P. The said recital is found place in page no.16 of Ex.A15 register. Admittedly page no.17 in

Ex.A15 was strike off and the same page in original of Ex.A15 also strike off. The page number 20 of Ex.A15 is shown as page no.15 in original register. The page no.21 and 22 in Ex.A15 is page 16 in original register and are same. The page nos 23 and 24 of Ex.A15 are strike off and the same are shown in the original page no.18 and 19. He verified all the pages 20 of Ex.A15 by comparing with the original register except pages no.13 and 14, the remaining pages of Ex.A15 are the same with the original register.

He does not have any personal knowledge with regard to the suit transactions and he was deposing only based on the record. Admittedly as per the original of Ex.A15, that government issued house site pattas to

Seepana Chinnammi, Gurugubelli Ramu in survey number 100 of

Fazulbegpeta, which is the survey number in which the Plaintiff is contending herself to have been granted patta. As per PW3, the document showing the layout plan issued by the Srikakulam Municipality does not contain the survey number 100.

30.As PW3 did not support their case, the Plaintiff got summoned PW4 /

Administrative Officer who earlier worked as Tahsildar of Srikakulam for the period April, 2013 to February, 2014. As per PW4, on the application of the

Plaintiffs under RTI Act, he issued Ex.A14 which is the true copy of the house site patta register for the years 1986 to 1996. Their deputy Tahsildar attested Ex.A14 after he obtained the xerox of the original. As per Ex.A14, house site patta are granted to 6 persons at Fazulbegpeta village. The name of Metta Pentamma / 1st Plaintiff herein is shown in sl.no.5 in Ex.A14 relating to survey number 100P block no.466 vide proceedings RC no.466/85 dated 21.04.1986.

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31.His evidence is crucial as he is the one who is having knowledge with regard to the patta register as he acted upon the application of the Plaintiff and furnished attested copy of the same under RTI Act. Further he also brought along with him the original house site patta register for the years 1986 to 1996 before this Court and hence certain discrepancies which crept in the Ex.A14/ attested copy of the said register with the entries noted in the original register were confronted during the cross examination and elicited as under :

32.During the cross examination of PW4, he admitted that he issued

Ex.A14 as per the available record but he did not verify each and every entry relating to the respective pattas. He verified the page numbers of

Ex.A14 before issuing the same. Admittedly page no.106 is not mentioned in Ex.A14. Further as admitted, except the entry relating to Metta

Pentamma (PW1), all the other entries in Ex.A14 does not contain the block

No. i.e., except page no.18 of Ex.A14. Admittedly as per Ex.A14, the total extent of site mentioned across the name of PW1 is shown as Ac.0.02 cents. Admittedly page No.s18 and 19 of Ex.A14 are struck of even in the original register. Admittedly after leaving 3 pages, the page number was mentioned as 1. Without verifying the original record, he cannot say to whom survey number 100/p belongs to. He mentioned the page number as 19 but did not mention page numbers 1 to 26. Thus in all it was contended that Ex.A14 is not the true extract of the house site patta register and hence 22 that no reliance can be placed on the same, which is however denied. But at the same time, it cannot be ignored that as elicited during the cross examination of PW4, there is definitely discrepancy in the details appearing in the original register to that of Ex.A14. However the crucial aspect which needs appraisal is whether in view of any such discrepancies as elicited, the very genuinety of the entry made in the register be doubted.

33.This being so, the other crucial witness who was got examined on behalf of the Plaintiffs is the Surveyor / S.Rajagopalarao who is said to have made endorsement on Ex.A1 / Patta to the extent of delivery of possession to Metta Pentamma and placing reliance on the said endorsement dt.29.11.2008, that it is stressed upon that by virtue of Ex.A1 / Patta that the

Plaintiff has been put into possession and enjoyment of the same and hence the municipal authorities or the Defendants does not have any manner of right to dispossess her.

34.Proceeding further, to rebut the case of the Plaintiffs, the Town planning supervisors, working under Srikakulam Municipality got filed their chief affidavits as DW1 and DW2 but however subsequently as they failed to appear before this Court, due to transfer or otherwise, their evidence was closed. This being so, N.Appalaraju town Planning supervisor also filed his chief affidavit before this Court subsequently and was examined as DW3 and reiterated the entire contents as in their written statement.

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35.This being so, it needs concern that it was specifically confronted to

DW3 if he has filed any authorization letter before this Court or sought for any permission to be examined on behalf of the 1st Defendant. Though

DW1 contended that he filed the authorization report, apparently no such document was filed nor any such permission sought for from this Court.

36.It is also to be noted here that it is specifically confronted during his cross examination that the present suit schedule plot Number is 466, but however it is brought to his notice that in his entire chief affidavit, the schedule property is mentioned as Plot No.471. However inspite of specifically confronting the same, no steps whatsoever were taken by the 1st Defendant to clarify the said aspect.

37.It is further elicited during the cross examination of DW3 that the lay out was approved in the year 1983. However he pleaded ignorance if it was approved vide L.P.No.89/1975 and no such Layout copy is filed before this

Court. As per DW3, Srikakulam Municipality was established in the year 1865 itself and he pleaded ignorance if the schedule property in layout was fallen under Fazulbegpeta panchayat upto 1975. He pleaded ignorance as to the extent of the land remaining after converting Plots in survey numbers 99, 100, 140 and 149 of Fazulbegpeta. As per DW3, no pattas were issued 24 to anyone in survey number 100 as per their records. However he pleaded ignorance as to the total extent of survey number 100, the number of sub- divisions present in the said survey number and its extent.

38.This being so, to further substantiate their contention that the Plaintiff was paying property tax and also Electricity bills, Ex.A3 to Ex.A9 which are the property tax receipts filed by the Plaintiff were confronted to the witness who revealed that he cannot say if the same were issued by Srikakulam

Municipality or not. Admittedly without the consent of Srikakulam

Municipality, the electricity Department will grant service connection and denied that no such connection will be granted without the permission of the Municipality. With this regard, it is the contention of DW3 that the revenue records and the electricity bills will not confer any right over the schedule property and they are generated to enable proper administration only.

39.As per DW3, the Srikakulam Municipality will have right over the gifted plots, road, parks and open spaces. He further submitted that as per

GOMs no.114 dated 14.03.2006 all the roads, open spaces, parks etc., which are marked in accordance with these rules in the layout approved under sub section 185 shall automatically stand transferred free of cost and shall vest with Municipality free from all encumbrances. Though he further contended that any such reserve sites gifted to the Municipality need not be 25 registered and are exempted, admittedly there is no such GO existing. This being so, it is suggested that the Municipality is having right over the reserve sites only and not against any plots. Here it is to be appreciated that there is no clarity given as to what the Plaintiff meant by reserve sites.

In fact as per the Defendant, the said reserve sites are few plots which are irregular bits and plots gifted to the Municipality. The said suggestion in fact refers that the Plaintiff is admitting the right of the Municipality over the reserve sites but the said suggestion lacked clarity as to what he meant by reserve sites, neither the details of the said plots specified in his chief affidavit.

40.Admittedly Ramakrishna Co-operative Society furnished documents to them in respect of land acquired to them, but they did not file any such document before this Court. He does not have any idea if any land under survey number 100 is not acquired by the said Society. He is not aware if any letter is issued by their department by the Town Planning Officer cum public information officer, Srikakulam to G.Savitramma, dated 27.12.2014 under Right to Information Act.

41.In fact as per PW1, Rajagopalarao handed over vacant possession of the suit schedule property to the 1st Plaintiff and also gave endorsement to that effect on the backside of the Patta / Ex.A1. It is in view of the said endorsement, it is stressed upon that the town surveyor on their application, 26 visited the site, verified the boundaries and put them into possession of the same. However as per DW3, though he admitted that RajaGopalarao, is their town planning officer, he pleaded ignorance if had handed over any possession to the Plaintiff. This being so, it is astonishing to note that as per

DW3, the schedule property is a vacant site. If that were so, it is highly astonishing to note how then the Defendants sought for the relief of mandatory injunction seeking to dismantle the existing structures. Thus it is apparent that DW3 is not having clear picture of the case facts.

42.Another Town surveyor was examined as DW4, who also filed his chief affidavit reiterating the facts as in their written statement. However during cross examination he too when confronted revealed that he visited the schedule property and it is a vacant site bearing number 466. Survey number 100 is divided into 6 sub divisions but he does not know the individual extent of the property. As per SLR survey number 100/6 is shown as poramboke and ralla gutta and admittedly poramboke lands are government lands. He is not aware if A.Satyamurthy, the then TPO,

Srikakulam municipality furnished any information under RTI Act, that there is no open place covered under survey number 100.

43.The 1st Defendant further got examined the Town Planning Building

Inspector as DW5 who filed his chief affidavit on parallel lines with that of the testimony of DW1 to DW4 reiterating that the schedule property is part of reserve sites gifted to Municipality by Sri Rama Krishna Government 27

Employee Cooperative House Building Society and as such the

Government does not have any right or authority for granting of any patta for the said sites. While praying to dismiss the suit filed by Plaintiffs / Metta

Pentamma and others, prayed to declare their title and grant such other reliefs.

44.During the course of cross examination, when confronted, DW4 revealed that the layout was approved vide LP No.577/1983 by Srikakulam

Municipality. However it is suggested that the 1st Plan approval for the layout in survey no.99, 100, 139, 140 and 142 of Fazulbegpeta was under

LP No.89/1975 by Gujarathipeta Gram Panchayat. But apparently except

posing suggestion, no such document filed before this Court to suffice their stand. DW4 pleaded ignorance if land in Sy.No.100/6 is shown in revenue records as rocky area and if the Government is having title over the same.

Admittedly in para No.5 of plaint in OS 227/2011, it is mentioned that “Plaint schedule property therein does not belong to the Government and hence it is crystal clear that revenue authorities without having any right over the layout gifted plots has issued pattas by revenue authority in favour of the

Plaintiff are liable to be canceled”. It is further elicited that in general practice, plot numbers will not be allotted to the open sites and reserve sites. Thus based on the said pleading, it is contended that the Defendants are admitting the issuance of the patta. However it cannot be ignored that 28 they are challenging the very patta itself and hence, even assuming the same, it will not exonerate the Plaintiff of the burden to suffice that it was genuinely issued and is a valid and binding one.

45.It is at this juncture after getting examined around five witnesses on their behalf, that the Srikakulam municipality while getting examined DW6 who is the present Town Planning Officer has taken recourse for filing of the documents on their behalf. In fact the chief affidavit of DW6 was also on parallel lines with that of the earlier witnesses in all material particulars, however through this witness Ex.B1 to Ex.B17 were got marked.

46.This being so, during the course of cross examination of DW6, it is elicited that in general when patta is granted by the government, that the possession will be handedover to them through revenue surveyor. One

Rajagopalarao was working as Town Surveyor during the year 1986, however the witness volunteered that in case were patta is granted by the

Municipality that possession of the said property will be handed over by their surveyor. Admittedly as appearing on Ex.A1 / Patta, there is an endorsement made and signed by S.Rajagopalarao, Town Surveyor,

Srikakulam dt.29.11.2008 to the effect that physical possession was handed over. However DW6 contended that they did not hand over any possession of the same. Admittedly as appearing from Ex.A2, possession certificate 29 was also issued in the name of Metta Pentamma for which this witness volunteered that the said certificate was issued by the revenue officials and not concerned with the municipal office. He further added that when they enquired regarding Ex.A2, that the revenue authorities informed them that they did not issue any such patta.

47.When Ex.A3 and Ex.A4 tax receipts were confronted to the witness, he admitted that the same seems to have been issued by the municipality but however doubted if the said receipts correspond to the schedule property. Admittedly assessment number will be given to any property where there is any house constructed and that in general when house is in occupation, then only that property tax will be levied after allotting assessment number. This being so, his contention is that the tax matters will be looked after by another revenue department.

48.It is also pertinent to note that it was confronted to DW6 that layout was approved in the year 1986 for which the witness replied that it was approved vide LP No.577/1983. No Gazettee Notification was issued after the approval of the layout for which the witness contended that no such

Gazettee notification is required. At this juncture it is again stressed upon that once the panchayat was converted to municipality, that a Gazettee notification has to be issued for which DW6 replied that Fazulbegpeta was 30 covered under the Municipality from the beginning. Admittedly part of the survey number 100 in Fazulbegpeta in the revenue records is mentioned as canal and as further admitted there is no right to alienate or transfer canal lands. It is further admitted that the revenue maps pertaining to

Fazulbegpeta reflect some of the lands shown as D Patta lands, LC lands,

B.T roads, rasta, business sites, tanks and canals for which the witness clarified that the said map confronted show the entire Fazulbegpeta village and not survey number 100 alone.

49. This being so, the layout plan filed was confronted to the witness who admitted that the total number of plots is mentioned as 343 at the bottom of layout. However the witness volunteered that on the upper left side column, the plan bears plot number 533 and hence it is not correct that there are only 343 plots. Even considering the said plan, definitely it reflects to be containing plots of more than 500 in number.

50.The testimony of DW6 was consistent throughout insisting upon the point that the Society has agreed to gift to the municipality 13 plots, 18 regular bits and 5 reserve sites of total extent of 8702.83 Sq.Yards and admittedly it is the Municipality which will be having right over the said plots.

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51. Admittedly Ex.B3 / Plan Approval Proceedings dt.02.01.1984, the subject mentioned in the said letter refers Sy.No.100 / part in favour of Sri

Rama Krishna Employees Cooperative House Building Society for which the witness volunteered that there are three more enclosures with the said proceedings. Admittedly there is a stipulation that the lands gifted to the

Municipality must be by way of Registered Gift Deed.

52.Admittedly in Ex.B4 pertaining to the letter of acceptance of gift, the subject reads regarding roads, open spaces etc., and there is no mention of irregular bits or plots as alleged by them. Admittedly they did not submit any copy of the gift deed before this Court but however the witness volunteered that as per G.O.No.72 dt.20.02.2022 / Ex.B5, it reflects that even in the absence of execution of any gift deed that the open spaces and roads etc., shall belong to the Municipality.

53.By confronting Ex.A15 to the said witness / DW6, it is elicited that as appearing from the entries made in the said register, pattas in sy.no.100-P shown to have been granted to six persons and that the entries made in the said register is attested by Deputy Tahsildar, Srikakulam. At this juncture the witness further volunteered that the municipal authorities through the

District Collector has addressed a letter to the RDO who verified the records and gave a report that no D form patta was granted to Metta

Pentamma / Plaintiff in OS 143/2010.

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54. Issue No.2 in OS 143/2010 and Issue No.4 and 5 in OS 227/2011 :

Whether the Tahsildar, Srikakulam issue D patta for the house site in favour of the 1st Defendant ?

Whether the plaint schedule property is a government Poramboke land ?

55.In fact both the issues No.2 in OS 143/2010 and Issue No.5 in OS 227/2011 are one and the same and since Issue No.4 in OS 227/2011 is interlinked with both the issues, hence for brevity sake discussed together.

56.Culminating the oral evidence adduced on record as discussed above, the crucial aspects which needs consideration, is that though the main suit in OS 143/2010 was originally filed by Metta Pentamma and her son, by the time of commencement of trial, Metta Pentamma was no more and hence her legal representatives were impleaded on to record and the son of Metta Pentamma namely Metta Syamalarao / 2nd Plaintiff was got examined as PW1. This being so, though they placed reliance upon Ex.A3 /

House Tax Demand Notice, Ex.A4 and Ex.A5, House tax receipts, Ex.A6 to

Ex.A10 / electricity bills cum receipts, as established the revenue records or such entries may at the most refer to the aspect of the concerned paying the property taxes and the electricity bills, however the revenue records 33 cannot be said to confer any right or title of the person in whose name the said bills are paid. Thus these may aid the Plaintiff in supporting their version to the extent of dealing with the schedule property but cannot aid in drawing any reference as to the granting of the patta or their alleged right or title.

57.The crucial documents on record stressed upon by the Plaintiffs are

Ex.A1 / House site patta dt.21.04.1986 and Ex.A2/ Original House site confirmation deed dt.24.02.2009. It is sternly stressed upon these documents saying that the plaintiff, being houseless poor lady, was granted patta under Ex.A1 and since then she has been in peaceful possession and enjoyment of the said property. It is time and again contended by the

Defendants that no such patta was granted to the Plaintiff and further the

Defendant no.3 / Tahsildar, Srikakulam filed their written statement in OS 227/2011 denying granting of any house site patta to the Plaintiff as alleged.

It is further stressed upon that the pattas are forged and the Defendants 4 and 5 does not have any claim or right over the schedule property. It is also pertinent to note that they further submitted that the land belongs to

Municipality by virtue of the gift deed executed by the Society and that the other Defendants has nothing to do with it and denied the right and title of the Plaintiff / Metta Pentamma. Though it is apparent that except filing their written statement that they did not take any active part during the course of 34 trial, the fact remains the Defendant / Tahsildar denying the Government to have granted any patta to the Plaintiff as alleged.

58.Undoubtedly when it is the contention of the Plaintiff that she has been granted Ex.A1 / Patta and contending herself to be in possession and enjoyment of the schedule property by virtue of the said document, the burden of proof lies upon her to substantiate their stand. Merely because the Government failed to adduce any rebuttal evidence, that does not infer that the said document stood unchallenged. Further it cannot be ignored that the case of the Plaintiff must stand or fall on their own and not upon the strength or weakness of the Defendant. Further it cannot be ignored that when it is stand of the Defendant / Municipality that the schedule property formed part of approved layout and that it is one of the plots which is gifted to it by Sri Rama Krishna Government Employees Cooperative House

Building Society, and is claiming right and title over the same, it becomes imperative upon the Plaintiff to further suffice the genuinety of the said document. Thus definitely the burden of proof lying on the Plaintiff is stronger to establish that Ex.A1 is a genuine patta granted to her as alleged.

59.With this regard, apart from the oral testimony of PW2, who is her neighbour, they placed reliance on Ex.A14 which is the attested copy of 35

House site patta register for the year 1986 to 1996, obtained under RTI Act and Ex.A15 which is the relevant entry in page No.18, serial no.5 in Ex.A14 which is the details pertaining to Metta Pentamma. By stressing upon these documents, it is tried to be impressed upon that there is also relevant entry of granting of patta in the name of Metta Pentamma even as per the revenue records ie., house site patta register during the relevant period.

60.They further got examined PW4 / Administrative Officer, to speak with regard to Ex.A14 and Ex.A15. As appearing from the record, the said witness brought along with him the original house site patta register corresponding to Ex.A14 and resting upon the said document it is contended that Ex.A1 / Patta is a genuine document and asserted the right and title of Metta Pentamma over the schedule property.

61.However it does not escape notice of this Court that during the cross examination of PW4, he admitted that he issued Ex.A14 as per the available record but he did not verify each and every entry relating to the respective pattas. The same admission may not carry much weightage, but it is further elicited from him that he verified the page numbers of Ex.A14

before issuing the same. Admittedly page no.106 is not mentioned in

Ex.A14. Further as admitted, except the entry relating to Metta Pentamma 36 (PW1), all the other entries in Ex.A14 does not contain the block number, i.e., except page no.18 of Ex.A14. Admittedly as per Ex.A14, the total extent of site mentioned across the name of PW1 is shown as Ac.0.02 cents. Thus in all, it was contended that Ex.A14 is not the true extract of the house site patta register and hence that no reliance can be placed on the same, which is however denied. But at the same time, it cannot be ignored that definitely as elicited during the cross examination of PW4, that there is discrepancy in the details appearing in the original register to that of

Ex.A14. However the crucial aspect which needs appraisal is whether in view of any such discrepancies as elicited, the very genuinety of the entry made in the register be doubted. However the same cannot be equated to say that the said contents stood admitted or proved. It is to be further appreciated that as stressed upon by the Defendant counsel, the entry regarding the block number is kept blank in the original register but however Ex.A15, relevant entry is containing the said number. It would have aided the Court if in fact a photostat copy of the relevant page from the original register could have been further obtained to enable to appreciate the said fact elicited as if the block number is really kept blank, it would definitely raise a doubt as to the details of the site which is alleged to have been granted to be Plaintiff. However it further goes to show that as elicited, as per Ex.A15, it is only an extent of Ac.0.02 cents of land which has been granted patta to the Plaintiff.

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62.It is to be noted that though the Plaintiff made endeavor to summon

PW3 / Tahsildar and also for cause production of the original patta register, when he entered into the witness box, he contended that no such patta was granted by them and also denied Ex.A2 to be issued by them. Further it is submitted that pages 13 and 14 of the said register are missing. Thus it is the case of the Plaintiffs that only to support the case of the Government that the said pages were intentionally removed from the register, which however he denied. Admittedly as per the original register their department granted patta to one Rakoti Krishnamma w/o.Ganesh in respect of plot number 264 in survey number 100 P. The said recital is found place in page no.16 of Ex.A15 register. Admittedly page no.17 of Ex.A15 was strike off and the same page in original of Ex.A15 also strike off. The page number 20 of Ex.A15 is shown as page no.15 in original register. The page no.21 and 22 in Ex.A15 is page 16 in original register and are same. The page nos 23 and 24 of Ex.A15 are strike off and the same are shown in the original page no.18 and 19. He verified all the pages of Ex.A15 by comparing with the original register except pages no.13 and 14, the remaining pages of Ex.A15 are the same with the original register. He does not have any personal knowledge with regard to the suit transactions and he was deposing only based on the record. Admittedly as per the original of

Ex.A15, that government issued house site pattas to Seepana Chinnammi,

Gurugubelli Ramu in survey number 100 of Fazulbegpeta, which is the 38 survey number in which the Plaintiff is contending herself to have been granted patta. As per PW3, the document showing the layout plan issued by the Srikakulam Municipality does not contain the survey number 100.

63.It does not escape notice that in fact PW3, when confronted with

Ex.A1 / Patta denied the same to have been issued by them. It is as PW3 did not support their case, the Plaintiff got summoned PW4 / Administrative

Officer who earlier worked as Tahsildar of Srikakulam for the period April, 2013 to February, 2014. But however in view of the discrepancies which are elicited during their cross examination, it definitely raises a doubt as to the genuinity or otherwise of the relevant entries and Ex.A14 and Ex.A15 itself.

64.This being so, the other crucial witness who was got examined on behalf of the Plaintiffs is the surveyor / S.Rajagopalarao who is said to have made endorsement on Ex.A1 / Patta to the extent of delivery of possession to Metta Pentamma and placing reliance on the said endorsement dt.29.11.2008, that it is stressed upon that by virtue of Ex.A1 / Patta that the

Plaintiff has been put into possession and enjoyment of the same and hence the municipal authorities or the Defendants does not have any manner of right to dispossess her. In fact when Ex.A1 was confronted to

CW1, he identified the endorsement of “Physical possession handed over” dt.29.11.2008 to be in his handwriting and categorically admitted that 39 pursuant to the said endorsement that he also handed over possession of schedule property to Metta Pentamma. It is further elicited from him that it is pursuant to the directions of the municipal commissioner that he visited the schedule property and handed over the same. He further elaborated that the Municipal Commissioner enquired with the Tahsildar, Srikakulam with regard to the genuinety of issuance of Ex.A1 patta and only on satisfaction with that regard, that directions for delivery of the possession were given to him. Though he did not not verify the patta register, in the custody of

Thasildar, he identified the schedule property based on the boundaries mentioned in it and effected delivery.

65.This being so, during the course of cross examination, it is elicited from him that to his knowledge, the entire land situated in sy.no.100 of

Fazulbegpeta is a Government land as per the revenue records. Certified copy of SFA register was confronted to this witness who admitted that as per the said extract, the land in sy.no.100 is shown to be divided into six parts and only survey no.100/6 is shown as poramboke land and thus that the entire land in sy.no.100 is not Government land or Poramboke land as alleged by him. The certified copy of SFA was got marked as Ex.B20 through CW1. In fact objection was taken by the counsel for the Plaintiff on the ground that the said document confronted is the certified copy of an attested document produced before this Court and since the attested 40 document itself is a secondary evidence that certified copy of the same is not admissible in evidence. Thus definitely it needs concern if the certified copy of an attested document filed before another Court and be considered as a secondary evidence or not.

66.Keeping this aspect on one side, even if the relevant portion in

Ex.A14 is to be appreciated, the extent of schedule property is shown as

Ac.0.02 cents while it is described as 282 Sq.Yards in Ex.A1 / Patta. In the layout column, the details is entered as Sy.No.100/part, 38 feet x 67 feet which equal to around 282 Sq.Yards. However it does not escape notice of this Court that during the course of cross examination of PW1 when confronted he revealed that the suit schedule property of an extent of

Ac.0.05 cents. Undoubtedly even in the schedule property appended to the plaint, the measurements are shown as 38 x 67 feet which is tallying with the documents on record but the contention of PW1 with regard to the total extent needs concern. It is also not out of place to mention here that as elicited from PW1, his mother in law, Gurugubelli Savitramma is residing towards eastern side plot no.465 of suit schedule property, towards southern side and it is a vacant site. During further cross examination, he revealed that his mother Pentamma and mother in law Gurugubelli

Savitramma constructed one house in their respective patta land. To be more specific, when confronted regarding Ex.A3 to Ex.A10 that they does 41 not contain any door number of the property, he further revealed that there is no such column in the said exhibits but further revealed that the door number of his mother and mother in law is one and the same and it is one house and one electricity service connection obtained by both of them. He further revealed that though his mother in law applied for plan approval to the municipality, that the same was refused by it as it is a patta site. If the said facts revealed by PW1 were to be taken into consideration, it is clear that any assessment of tax pertaining to the schedule property as alleged by PW1, pertains to the schedule property inclusive of Plot No.465 of his mother in law. When the contention of the plaintiff goes to show that both his mother and mother in law were granted pattas separately, how they clubbed both the sites to one and constructed house, while preferring separate suits on the same assessment number and electricity service connection claiming possession and enjoyment over the said property.

67.The boundaries as mentioned in the Ex.A1 / patta also needs careful appraisal. Perusing the same, it is described as to the East is plot no.465, west is private land, to the north is road and to the south is plot no.408.

68.Thus it is clear that the boundaries are shown to be the plots which are part of the layout as contended by the Municipality. In these circumstances, it definitely reflect that in fact the schedule property also 42 forms part of the layout. In fact there is no direct or cogent evidence adduced to show that the schedule property formed part of the poramboke land to say that the Government is having any right to grant such patta. On the other hand as already discussed above, the Tahsildar who was examined as PW3 denied having issued any such patta. In these circumstances, merely based on Ex.A14 and Ex.A15 entries in the house site patta register, that too which is effected by discrepancies, no conclusion can be drawn regarding the fact that the schedule property is part of poramboke land. Hence issue no.4 in OS.227/2011 is answered accordingly against the Plaintiff.

69.This being so, definitely when there is no cogent evidence to show that Ex.A1 patta is granted to the Plaintiff in the manner as alleged, and moreover since PW3 / Tahsildar himself denied having issued any such patta and since the boundaries probablise the stand taken by the

Defendant / Municipality that it formed part of the layout, it can be said that the Plaintiff failed to probablise the fact that Ex.A1 / patta was granted to

Metta Pentamma in the manner as alleged. Thus these issue no.5 in

OS.227/2011 and issue no.2 in OS.143/2010 are answered accordingly.

43

70. Issue No.1 in OS 227/2011 :-

Whether the Plaintiff is entitled for the relief of declaration of title and for possession as prayed for ?

71.Before adverting into the other details, I deem it necessary to mention here that in fact the Municipality has preferred I.A.1744/2015 seeking to implead Sri Rama Krishna Government Employees Cooperative House

Building Society as Defendant no.7 on the ground that they are the necessary and proper parties to the suit since as per their contention it is the said Society which has gifted the said plots to them. However as appearing from record, as no steps were taken for service of notices to the proposed parties, that the said petition stood dismissed for default against them. However the said petition was allowed on 19.09.2016 and subsequently amendment was carried out and neat copy filed. However apparently the Municipality did not choose to seek for any steps for issuing summons to them or secure their presence. As appearing from record, in fact the main relief is prayed for against Defendants 1, 2 and 6 only in

OS.227/2011 and even after carrying out amendment no relief whatsoever

was sought for against Defendant no.7, thus apparently he was intended to be impleaded as proforma Defendant only. Apparently without tendering any notices upon Defendant no.7 i.e, Society and though the petition was dismissed for default against the Society and allowed only against the 44 remaining respondents, somehow the Municipality amended the suit including the name of the Society as Defendant no.7. Keeping this aspect on one side, the Municipality did not choose to take notice to him and it appears that they just wanted to add him as proforma party and in fact no relief is claimed against Society. Considering all, the suit against the Society is liable to be dismissed and shall remain against the remaining Defendants only in OS.227/2011.

72.Coming to the facts of the case, it is the contention of the Municipality that Sri Rama Krishna Government Employees Cooperative House Building

Society which was approved by the Municipality vide LP No.577/1983.

However the Director of Town and Country Planning, A. P. Hyderabad while granting approval of the layout laid down the condition that certain irregular bits and open spaces be gifted to the Municipality for public utility purpose.

Accordingly the Society gifted 13 plots and 8 irregular bits measuring total extent of 8702.83 Sq.Yards and 6 reserved open spaces as reserved sites.

Thus that the said open spaces and reserved sites are vested with the municipality and that except them, the Government also do not have any right for granting any pattas.

73.It is to be noted here that DW3 to DW6 working in various capacities in Srikakulam Municipality were examined on behalf of them, who all together reiterated regarding the right of the municipality. However it is to be 45 noted here that till the time of examining DW6, the Municipality did not choose to submit any documents on their behalf. Admittedly there are other cases filed by the Defendants against some other persons who are claiming to have been granted pattas by the government and stressed upon the point that the government also filed written statements in the said cases reporting that no such pattas were granted by them. To substantiate their contention, the certified copies of the written statements filed in OS 433/2010, OS 283/2012, OS 231/2011, OS 459/2011, OS 227/2011, OS 225/2011, OS 379/2010, OS 394/010, OS 324/2010 and OS 285/2012 were got marked as Ex.B7 to Ex.B16. These documents may at the most support their contention to the extent that the government denied having granted any pattas by them as alleged but however it cannot be ignored that burden of proof lies upon the Defendants to establish that such plots and more specifically the suit schedule property is vested upon them by virtue of any alleged gift deed executed by Sri Rama Krishna Government Employees

Cooperative House Building Society.

74.With this regard, Ex.B1 is the certified copy of layout plan of Sri

Rama Krishna Government Employees Cooperative House Building

Society. It is in light of the said layout plan, it is mentioned that upon the directions of Director Town and Country Planning that the schedule property and other sites were gifted to the municipality. Undoubtedly, there is a policy 46 for gifting of open places, irregular bits etc., to the municipality for public utility purpose which plots shall be utilized for the purpose of construction of roads, parks, library etc., Thus the said contention of any such stipulation been laid down by Director, Town and country planning need not be doubted. However at the same time, it cannot be ignored that unless and until any cogent evidence is adduced on record with regard to the details of the irregular bits or open spaces said to have been gifted to the municipality, no conclusion can be drawn with regard to their right or title. It is to be appreciated here that to suffice their stand, they placed reliance on

Ex.B3 which is certified copy of letter addressed by DW6 to the Municipal

Commissioner, Srikakulam Municipality dt.06.1.1984 along with annexure-I which are the directions given by Director of Town and Country Planning.

Ex.B4 is the certified copy of the attested true copy of letter addressed by

Sri Rama Krishna Government Employees Cooperative House Building

Society to Commissioner, Srikakulam Municipality wherein it is specifically mentioned that they are enclosing the gift deed and the receipt of the same may be acknowledged. All these documents undoubtedly refer to the fact that the procedure has been duly followed wherein certain plots were gifted to the municipality. All said and done, the fact which remains to be established is that the suit schedule property is one of such plots which is gifted to the municipality with which regard there is no direct evidence nor any such gift deed produced before this Court.

47

75.It is to be noted here that as per DW6, he contended that Ex.B5 /

GOMs.No.72 and Ex.B6 / GO.Rt.No.114, that such reserved sites shall vest upon the Municipality and registration of such document is exempted.

However during further cross examination, they admitted that there is no such provision incorporated with regard to exemption from registration.

However appreciating Ex.B5 / GOMs NO.72, there is no such exemption laid down but however it contains the guidelines that such allotted plots shall strictly be utilized for public utility purpose only which shall be strictly complied and in the alternative on remuneration be transferred for establishing shopping complexes etc., provided that they are also initiated for the betterment of the public.

76.The crucial point to be considered here is GO.Rt.No.114 dt.14.03.2006 wherein in exercise of powers conferred by (1) of Sec.326 of

Andhra Pradesh Municipalities Act, 1965, the Governor of Andhra Pradesh made the following amendment to the Andhra Pradesh Municipalities (Layout) Rules 1970, which reads as under :-

77.For Rule 14 of the said rules the following rule shall be substituted namely :- “14 – All the roads and open spaces such as parks and play grounds earmarked in accordance with these rules in a layout which is approved 48 under Sub Section (3) and Sec.185 shall automatically stand transferred free of cost and vest with the municipal counsel, free from all encumbrances. After such vesting the municipality shall maintain all such open spaces for the purposes of which they have been earmarked.

78.It is by placing reliance on the said GO, that it is insisted by the

Municipality that no such registration is required. However it cannot be ignored that the said GO is dated 14.03.2006 and there is no mandate that it is having any retrospective effect. Further it cannot be ignored as per the

Municipality, the layout pertained to the year 1983 and was approved vide

LP.No.577/1983 and in such circumstances, it is imperative upon the

municipality to submit relevant documents before this Court by virtue of which they are contending themselves to have acquired right over the same. Ex.B19 is the original letter addressed by the Society informing forwarding of the gift deed as mandated. But as already mentioned above, the same may, pave way to infer the genuinety of the contention taken by the Municipality with regard to the gifting of plots by the said Society.

However in the absence of producing any such gift deed before this Court containing the details of the plots gifted, no advantage flows to the

Defendant no.1.

49

79.Ex.B17 is another crucial document which is certified copy of the complaint addressed to the Collector, Srikakulam pertaining to allegations against Tahsildar, Srikakulam, perusal of which reflects that some irregularities crept in where under there was no proper record with regard to the grant of pattas entered in the relevant records and while some of them are contending to have been granted pattas, in fact no such entries were found in any of the relevant records. Whatever it be, it cannot be ignored that it might be a complaint seeking necessary action against the Tahsildar presented before Lokayukta but however that does not come to the aid of the Defendant in any manner for appreciating factum of his alleged right or title over the schedule property.

80.Thus in all, it can be said that there is no cogent and convincing evidence adduced on record to show the details of the sites which are alleged to have been vested upon the municipality in the manner as alleged neither any such registered gift deed filed before this Court to infer the procedure to have been duly followed. Thus in all, it can be said that the

Defendant no.1 failed to suffice his contentions with regard to his right and title over the schedule property and in these circumstances, definitely he is not entitled for the relief of declaration of title as prayed for. This issue is answered accordingly.

50

81. Issue No.2 and 3 in OS 227/2011 :- 2.Whether the Plaintiff is entitled for the relief of mandatory injunction as prayed for ?

3.Whether the Plaintiff is entitled for the relief of permanent injunction as prayed for ?

82.In view of Issue NO.1 in OS 227/2011 been answered against the municipality holding that the Municipality is not entitled for the declaration of title or for the recovery of possession, as a sequel definitely they are not entitled for the relief of mandatory injunction or permanent injunction as prayed for. These issues are answered accordingly.

83. ISSUE NO.1 IN OS.143/2010 :-

In light of the discussion made above, apparently the Plaintiffs failed to suffice their stand regarding the genuinety or otherwise of the patta issued in their favour as the Government in their written statement clearly denied the same and so also PW3 / Tahsildar denied any such patta been issued by them. This being so, considering the oral and documentary evidence on record, it was in light of the issues answered above, it was held that the Plaintiff failed to suffice his stand.

51

84.Keeping these aspects on one side, proceeding further, if the Plaintiff is entitled for the relief of permanent injunction as prayed for, as already discussed above, by examining PW4, it was elicited that he personally visited the site, measured and delivered physical possession of the same to

Metta Pentamma. They further contended that later on their application that house site confirmation deed vide Ex.A2 was also granted thereby enabling them to construct house in the said site and that since then they have been in possession and enjoyment of the same.

85.PW1 further placed reliance on Ex.A3 to Ex.A10, Ex.A12 and Ex.A13, which are all the tax receipts, electricity bills and demand notices. Thus stressed upon that their property is assessed and house tax been levied.

This being so, it is to be appreciated here that though they submitted that

Assessment no.1085018807 was granted to the property and that they have been paying municipal tax as well, the said tax receipts does not contain any particulars with regard to the door number or plot number of the said property to apprecaite that the assessment number as alleged by them or the said tax receipts pertain to the schedule property only.

86.Added to it though they also submitted that on their application that the electricity department granted service connection no.13110-1601- 044984 and also submitted the electricity demand notices and bills, so also 52 some those documents does not anywhere contain the details of the schedule property to say that the said demand notices or receipts pertain to the said service connection. Here it is apt to refer that as elicited from PW1, that they constructed one house in the schedule property and the plot of

Gurugubelli Savitramma / mother in law of PW1. In these circumstances, when it is the specific case of PW1 that the house was constructed covering the property of Metta Pentamma and Gurugubelli Savitramma, it becomes imperative to furnish the said details with precision as to the details furnished to the concerned authorities also while seeking for property assessment and obtaining service connection. Apparently these details are lacking.

87.Further as contended by the defendant no.1 / Municipality, the boundaries of Plot No.466 are shown to be Plot bearing No.408, 465, private land and road which all probablize the contention of the municipality that the schedule property is part of the layout. In the absence of establishing to the contrary, by merely resting their case on the electricity bills and the property tax, the plaintiff cannot seek the relief of permanent injunction. It is more pertinent to note here that the defendant no.1 throughout is disputing the genuinety of patta and claiming the same to have been gifted to them by the society and moreover the Government also filed the written statement denying issuance of any such patta as alleged, 53 definitely their title is challenged and when there is a cloud over the title by virtue of which the plaintiff is claiming themselves to have been in possession and enjoyment of the schedule property, definitely bare suit for injunction does not lie.

88.I deem it pertinent to refer to the Judgment of their Lordship in

Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors dt.25 March, 2008 Equivalent citations: AIR 2008 SUPREME COURT 2033 wherein ti was observed as under :-

89.The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled.

90.11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

91.11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, 54 if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

92.11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction.

Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

93.To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding 55 on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for 56 injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

94.Thus it is clear that when there is definitely a dispute regarding the title and right over the schedule property, definitely a bare suit for injunction does not lie.

95.Thus considering all, this Court is of considerable opinion that the

Plaintiff is not entitled for the relief of permanent injunction as prayed for.

This issue is answered accordingly.

96. ISSUE NO.3 in OS.143/2010 and ISSUE no. 6 in OS.227/2011 :-

In the result, the suit in OS.143/2010 and OS.227/2011 stands dismissed. In the facts and circumstances of the case, each party do bear their own costs.

Partly typed by me and partly typed to dictation by the Stenographer on my laptop, corrected and pronounced by me in the open Court, this the 9th day of April, 2025.

Sd/- K.V.L.Hima Bindu

Principal Civil Judge (Senior Division),

Srikakulam.

57

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Pla intiffs :

PW1: Metta Syamalarao PW2: Gunnu Chandrayya PW3: S.Dileep Chakravarthi, Tahsildar PW4: Madugula Kaliprasad, Administrative Officer

CW1: S.Rajagopala Rao, Surveyor

For Defe ndants :

DW1: P.Kanaka Rao, Town Planning Supervisor (closed) DW2: Dumpala Tejeswara Rao, Town Planning Supervisor (eschewed) DW3: N.Appalaraju, Town Planning Supervisor DW4: L.Prabhakararao, Town surveyor DW5: U.Bala Bhaskararao, Town Planning Building Inspector DW6: Y.Uma Maheswara Rao, Town Planning Officer

DOCUMENTS MARKED

For P laintiffs :

Ex.A1: Original D patta dated 21.04.1986

Ex.A2: Original House site confirmation deed dated 24.02.2009

Ex.A3: House Tax demand notice dated 27.10.2009

Ex.A4: House Tax receipt for Rs.455/- dated 28.10.2009

Ex.A5: House Tax receipt for Rs.455/- dated – NIL -

Ex.A6: Electricity consumption Bills for SC No.044984 together with five demand notices dated 25.03.2010

Ex.A7: Electricity consumption Bills for SC No.044984 together with five demand notices dated 12.06.2009

Ex.A8: Electricity consumption Bills for SC No.044984 together with five demand notices dated 21.07.2009

Ex.A9: Electricity consumption Bills for SC No.044984 together with five demand notices dated 21.01.2010

Ex.A10 : Electricity consumption Bills for SC No.044984 together with five demand notices dated 09.09.2009 58

Ex.A11 : Acknowledgment for complaint reference No.26229 dated 13.11.2009

Ex.A12 : Electricity consumption Bills for SC.No.044984 dated 09.12.2009

Ex.A13 : Electricity consumption Bills for SC.No.044984 dated 10.11.2009

Ex.A14 : House site pattas register for the year 1986 to 1996 issued by the Tahsildar, Srikakulam.

Ex.A15 : Relevant entry in page No.18 in S.No.5 Ex.A14 register

For D efendants:

Ex.B1: Certified copy of layout plan of Sri Ramakrishna Government employees cooperative house building society.

Ex.B2: Certified copy of written statement of D2 in O.S.229/2011

Ex.B3: Certified copy of Letter addressed to Municipal Commissioner, Srikakulam Municipality, dt.06.01.1984 along with annexure-I

Ex.B4: Letter addressed by Rama Krishna Government employees cooperative house building society limited to the Commissioner, Srikakulam Municipality, dt.16.11.1985

Ex.B5: Certified copy of G.O.Ms.No.72 dated 20.02.2002

Ex.B6: Certified copy of G.O.Rt.No.114, dated 14.03.2006

Ex.B7: Certified copy of written statement of D2 in O.S.433/2010

Ex.B8: Certified copy of written statement of D3 in O.S.283/2012

Ex.B9: Certified copy of written statement of D2 in O.S.231/2011

Ex.B10 : Certified copy of written statement of D2 in O.S.459/2011

Ex.B11 : Certified copy of written statement of D3 in O.S.227/2011

Ex.B12 : Certified copy of written statement of D2 in O.S.255/2011

Ex.B13 : Certified copy of written statement of D2 in O.S.379/2010

Ex.B14 : Certified copy of written statement of D2 in O.S.394/2010

Ex.B15 : Certified copy of written statement of D2 in O.S.324/2010

Ex.B16 : Certified copy of written statement of D4 in O.S.285/2012

Ex.B17 : Certified copy of Letter to collector, Srikakulam dated 09.06.2014 59

Ex.B18 : Proceedings vide ROC No.532/2016 A, dt.04.02.2017 addressed by the Tahsildar to the Commissioner, Srikakulam Municipality.

Ex.B19 : Letter issued by the Secretary, Ramakrishna Government Employees Cooperative House Building Society Limited to Commissioner, Srikakulam Municipality dated 16.11.1985

For Court Witness:

Ex.B20 : Certified Copy of SFA Register (marked subject to objection)

Ex.B21 : Certified Copy of Attested copy of FMB

Sd/- K.V.L.Hima Bindu

Principal Civil Judge (Senior Division),

Srikakulam.

1 //Fair Judgment//

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION),

SRIKAKULAM.

Present :- Smt. K.V.L. Hima Bindu,

Principal Civil Judge (Senior Division),

Srikakulam.

MONDAY, THIS THE 07TH DAY OF APRIL, 2025

ORIGINAL SUIT No. 319 / 2017

Between :

Muddada Rajyalakshmi, W/o.Late Yerram Naidu, aged 24 years, resident of D.No.7-252/1, Bandiveedhi, Narasannapeta village & Mandal, Srikakulam District and presently C/o.Daneti Ramanamma, B.C. colony, Chintada village, Srikakulam Rural Mandal, Srikakulam District. .… Plaintiff.

And :

1. Muddada Sujatha, W/o.Late Ramachandra Rao, aged about 52 years, D.No.7-252/1. Bandiveedhi, Narasannapeta village & Mandal, Srikakulam District.

2. Muddada Balakrishna, S/o.Late Ramachandra Rao, aged 32 years, D.no.7-252/1, Bandiveedhi, Narasannapeta village and Mandal, Srikakulam District.

3. Muddada Sirisha, D/o.Late Ramachandra Rao, aged about 29 years, D.No.7-252/1, Resident of Bandiveedhi, Narasannapeta village and Mandal, Srikakulam District.

(amendment including proposed party / 3rd Defendant carried out as per orders in I.A.139/2021, dated 31.10.2023. ) … Defendants.

2

This suit coming before me on 06.03.2025 for final hearing in the presence of Sri G.Janardhana Rao, Sri B.Jagadeeswara Rao, Sri A.Vasudeva Rao, Learned Counsels for the Plaintiff and Sri D.Nellannaidu, Sri D.V.Ramana Murthy Learned Counsels for the Defendants 1 to 3; and matter having been heard and stood over for consideration till this day, this court delivered the following :

J U D G M E N T

1. The present suit is filed for partition of Plaint Schedule properties into four equal shares by metes and bounds and allotment of one such share to the Plaintiff and three such equal shares to the Defendants; for mesne profits; for costs of the suit and for such other reliefs as this Court deems fit and proper in the Interests of Justice.

2.The plaint averments goes to show that :-

(a) The Plaintiff’s marriage was solemnized on 27.08.2010 with one

Muddada Yerram Naidu as per Hindu rites who is the younger son of the 1st

Defendant and younger brother of 2nd Defendant. Plaintiff’s husband expired on 27.03.2016 and hence that the Plaintiff and both the Defendants are coparceners and joint family members and having joint family properties.

b)It is submitted that the schedule properties are ancestral joint family properties and owned and succeeded from late Ramachandra Rao, who is the father-in-law of the Plaintiff, and have been under the management of the 1st Defendant. The Plaintiff submits that while living in one house, the 1st

Defendant has let out the schedule properties to tenants for rent and getting 3 rents to a tune of Rs.30,000/- per month and used to maintain the family.

The Defendants are having liability to look after the welfare of Plaintiff, but the Defendants have failed to do so and also are not coming forward to partition the joint family properties. The Plaintiff submits that her husband expired on 27.03.2016 and the Plaintiff made several demands for partition of the schedule properties. Though both the Defendants have agreed, but are not coming forward for partition and have been postponing the same on one pretext or the other. The Plaintiff submits that she has no longer interest to keep the schedule properties in joint. Recently, at the interference of the Defendants, differences arose between the Plaintiff and

Defendants and the attempts of the elders to settle the problems became futile. The Plaintiff got issued legal notice dated 30.05.2017 to the

Defendants calling them to come forward to partition the schedule properties and for allotment of share to her. The Defendants received the said notice and got issued reply notice dated 27.06.2017 with all false and untenable contentions that too contrary to the statements made before elders. There is no any statement from the Defendants about the alleged

Will said to have executed by the father in law of the Plaintiff before elders.

The attempts and demands of the Plaintiff through elders for partition of the schedule properties did not yield fruitful results and the attempts of the elders in making partition of the schedule properties become futile exercise.

The Plaintiff and Defendants are in joint and constructive possession and 4 enjoyment of the schedule properties. It is reliably learnt that taking advantage of the innocence of the Plaintiff the Defendants are trying to alienate the schedule properties to 3rd parties in order to cause wrongful loss to the Plaintiff. Therefore, this suit is filed for partition of the schedule properties into four equal shares and allotment of one such share to the

Plaintiff and three such shares to the Defendants.

3.Written Statement is filed by the 2nd Defendant denying the Plaint averments. It is submitted that 1st Defendant is the wife, 2nd Defendant is the son, the husband of the Plaintiff is younger son and one Muddada Sirisha is the daughter of one late Muddada Ramachandra Rao. During life time of

Ramachandra Rao, he performed the marriage of his sons on 14.03.2008 and on 27.08.2010 respectively. Subsequent to the marriages of sons of

Ramachandra Rao, they separated and living with their families and eeking out their livelihood in individual capacity.

4.It is submitted that item Nos. 1 and 2 of Plaint schedule properties are the self acquired properties of Ramachandra Rao which were acquired by him under a Will dated 07.03.1997 from one Muddada Simhachalam

Naidu. The item No.3 of Plaint schedule property was a Gramakantam acquired by the 1st Defendant and she constructed a house therein with her

Stridhana property and hence the said property is her self-acquired property. Thus the items 1 to 3 are self acquired properties of 1st Defendant and her husband but not joint family ancestral properties. The item No.4 of 5

Plaint schedule property belongs to third parties and the Defendants has nothing to do with the same nor got any rights over it.

5.It is submitted that he used to reside in item No.3 of Plaint schedule and the husband of Plaintiff and Plaintiff used to reside in item No.2 of

Plaint schedule with the consent of Ramachandra Rao. While so, some disputes arose between the Plaintiff and her husband some time after marriage and the Plaintiff left her matrimonial home. Since that day onwards the Plaintiff’s whereabouts were not known to anybody. The

Husband of the Plaintiff since then got addicted to bad vices like alcohol etc. and advanced loans from villagers for his vices and later died.

6.It is submitted that during life time of Ramachandra Rao, he in a sound state of mind, executed a Will dated 16.05.2011 bequeathing his self acquired properties i.e., items 1 and 2 of the plaint schedule properties by giving life estate to his wife i.e., 1st Defendant and his daughter, thereafter to devolve the same on his grandsons with absolute rights. He died on 13.05.2013 and since then, the Will came into operation and the 1st

Defendant and her daughter is in possession of the same under the said

Will. The 2nd Defendant or the husband of Plaintiff has nothing to do with the said properties. Hence the question of joint family and joint possession does not arise. The Plaint schedule is not correct, the suit is bad for mis- joinder and non-joinder of parties and liable to be dismissed under law. The court fee paid by the Plaintiff is not correct as there is no joint family or joint 6 status over the properties. There is no cause of action to the suit. The suit is not maintainable under law, but is a frivolous and vexatious one and that the Plaintiff is liable to pay exemplary costs under law and hence, in all prayed to dismiss the suit with costs.

7.Memo filed by the Defendant no.1 adopting the written statement of

Defendant no.2.

8.Upon hearing the rival contentions of both the parties, the following issues were settled for trial by my predecessor :

1) Whether the Plaintiff is entitled for partition of Plaint schedule properties into three equal shares and entitled to get one share or not ?

2) To what relief ?

9.During the course of trial, I.A.139/21 is filed seeking for impleading 3rd Defendant as the suit was initially filed against Defendants 1 and 2 only, which was allowed. Hence Defendant no.3 was impleaded onto the record and amendment carried out.

10.However subsequent to the said amendment, counsels for D1 and

D2 reported no Additional Written Statement, while the Defendant no.3 filed memo adopting the written statement of Defendant no.2.

11 Having considering the material on record, my predecessor has framed the additional issues as under :-

1. Whether item No.3 of the Plaint schedule property is the self- acquired property of 1 st Defendant ?

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2. Whether item No.4 of the Plaint schedule property belongs to 3 rd parties ?

3. Whether the husband of the 1 st Defendant by name Ramachandrarao executed Will dt.16.05.2011 by bequeathing item No.1 and 2 of Plaint schedule properties by giving life interest to 1 st Defendant and his daughter and by giving vested interest to his grandsons and whether that will dated 16.05.2011 is true, valid and binding on the Plaintiff ?

4. Whether the suit is bad for mis-joinder and non-joinder of necessary parties ?

12.During the course of Plaintiff’s evidence, the Plaintiff herself examined as PW1 and mother of the Plaintiff examined as PW2, 3rd party witnesses as PW3 and PW4 and placed reliance on Exs.A1 to Ex.A3 on her behalf.

13.To rebut the case of the Plaintiff, the 2nd Defendant himself got examined as DW1 and one of the attestors of Will got examined as DW2 and DW3 and placed reliance on Exs.B1 to Ex.B8.

14.Heard both sides. Perused material on record. Written arguments are filed by the counsel for the Defendants apart from adducing oral arguments. The counsel for the Plaintiff filed citations on his behalf which shall be discussed where relevant.

15.ADDITIONAL ISSUE No.3 :-

The case of the Plaintiff is that after the death of her husband, that the Defendants neglected her and inspite of her best efforts that they did not come forward for partition and hence the present suit for partition.

8

Per contra it is the case of the Defendants that the Plaintiff was staying separately even during the life time of her husband and never took care of him and moreover that the schedule properties are not partitionable Item

No.1 to 3 being self acquired and Item No.4 belonging to third parties and hence that the said suit be dismissed.

16.To substantiate her contention the Plaintiff got herself examined as

PW1 and filed her chief affidavit in lieu of her chief examination and reiterated the entire contents as in her plaint and placed reliance on Ex.A3 which is the death certificate of her husband to say that he expired on 13.12.2016. It is further submitted that after the death of her husband that she demanded the Defendants for partition and also issued legal notice to that effect. Ex.A1 is the office copy of the legal notice dated 30.05.2017.

For the said legal notice, the Defendants are said to have issued reply notice dated 27.06.2017 taking the stand on parallel lines with that of their written statement, denying the partition and right of the Plaintiff.

17.To further corroborate her contentions she got examined her father as

PW2 who filed his chief affidavit reiterating that the schedule properties, as informed by late Ramachandra Rao are the ancestral joint family properties and been under his management during his life time after which the same is looked after by 1st Defendant and prayed for partition.

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18.Further she got examined the marriage elders as PW3 and PW4, who also filed their chief affidavit and while PW3 reiterated that he is residing in the locality to that of the Defendants, PW4 accompanied them even for the talks for partition and such they both are aware with regard to the said details and narrated the facts on parallel lines with that of PW2 in all material particulars and contended that the Plaintiff is having a share in the schedule property.

19.To rebut the case of the Plaintiff, the 2nd Defendant got himself examined as DW1 and filed his chief affidavit in lieu of his chief examination and reiterated the entire contents as in his written statement and also placed reliance on Ex.B1 which is the certified copy of the Will dated 07.02.1997 executed by Muddada Simhachalam Naidu and Ex.B3 which is the original Will dated 06.05.2011 which is executed by Muddada

RamachandraRao Naidu and by stressing on the said documents contended that by virtue of the said Wills that the schedule properties dwelled upon them and hence are not partitionable. Further by relying on

Ex.B2, Ex.B4 to Ex.B8, it is contended that their names are also mutated in the revenue record and they are enjoying the same with absolute rights.

20.To further corroborate their version they got examined the attestors of the said Will as DW2 and DW3. Thus the evidence of these attestors assumes much importance and need to be appreciated with care and circumspection.

10 21Critically appreciating the testimony of DW2, it goes to show that he acted as an attestor for the Will dated 16.05.2011 executed by Mudda

RamachandraRao Naidu. He categorically reiterated that the said Will was executed in the presence of himself, another attestor Sarapu

Simhachalam / DW3 who is also relative of Mudda RamachandraRao

Naidu. That it was drafted by document writer and Mudda

RamachandraRao Naidu executed the same in his sound state of mind.

After drafting the same, the contents were read over and after satisfaction and confirmation of the same by Mudda RamachandraRao Naidu, and after he affixed his signature that DW2 and DW3 also affixed their signatures and so also the scribe. Under the said Will, Mudda RamachandraRao Naidu bequeathed the properties to his wife and daughter giving them life estate and conferring vested interest to children born to his sons with equal rights.

That the Plaintiff, who is wife of his younger son stayed with him only for few days and left to her parental house and did not return, more so as he was chronic drunkard. That the said Will is in the custody of wife of

Muddada RamachandraRao Naidu and it came into effect after his death on 13.05.2013, ie., after two years after he executed the said Will.

22.The testimony of DW3, another attestor is on similar lines with that of

DW2 in all material particulars and moreover he is brother-in-law of

Muddada RamachandraRao Naidu and he detailed that it was scribed by one AppaRao. The younger son of Muddada RamachandraRao Naidu, who 11 is the husband of the Plaintiff also expired on 13.05.2013 and that there were some disputes between the husband and wife and that she did not even attend his funerals.

23.The evidence on record been thus, before adverting into other details, firstly it is to be appreciated if the schedule property is self acquired property of Muddada RamachandraRao Naidu or joint family property. With this regard except basing her contentions on the oral information alleged to have been given by late Muddada RamachandraRao Naidu during the marriage talks and thereafter, the Plaintiff did not choose to adduce any documentary evidence with that regard. This being so, during the course of cross examination of DW1, it is elicited that he too did not submit any documentary evidence to show that the schedule properties are the self acquired properties of his father. At this juncture he submitted that in fact during their childhood that as they did not had any house that their mother constructed house in the gramakantam land, which is the item no.3, shown herein. However it is suggested that in fact that item no.1 to 4 were acquired by their mother from her father and that they were enjoying the same which stood denied. This being so, it is volunteered by DW1 that he does not have any knowledge that properties were acquired from his maternal grandfather as alleged and further detailed that in fact their father handed over them only one house and one shop. It is his contention throughout that their father handed over them only one shop and one 12 house. Except Ex.B1 which is said to be the Will executed in favour of their father, they did not adduce any evidence to show that Item No.3 is self acquired properties of their mother as alleged. It is to be noted here that though he initially denied the same, later admitted that there is a suit pending between brothers of his father vide OS.111/2008 and that Ex.B1 is the certified copy of the said Will obtained from the said matter pending on the file of JCJ, Narsannapeta. Though he further contended that the said disputes between their father and his brothers were resolved, no such material adduced to suffice the same.

24.Keeping this aspect on one side, apparently Ex.B1 seems to be under dispute. Whatever it be the same cannot be said to have been established since original of the same not produced nor any attestors of the said Will examined. Thus Ex.B1 Will cannot be said to have been proved.

25.This being so, it is to be noted here that as appearing from Ex.B1, the said properties were said to have been acquired by Late Simhachalam

Naidu from his fathers. This apart, as already mentioned above, the said

Will/Ex.B1 itself is under dispute in OS.111/2008 and no Judgment or Order filed before this Court, to show that there was any finding with that regard.

Thus the very genesis under which late Simhachalam is said to have acquired the properties itself stood not sufficed.

26.Secondly, as per DW2, the said Will was executed in the Matt which is near the house of RamachandraRao. However as per DW3, it was 13 executed in the house of RamachandraRao. Thus though the other material particulars regarding the presence of the attestors and scribe tallied, there is clear contradiction regarding the place where the said Will is said to have been executed. DW2 submitted that he can affix his signature and that he affixed his signature in the said Will. However he did not choose to affix his signature but affixed his thumb impressions both in his chief affidavit and his deposition before this Court. No explanation whatsoever is tendered with that regard. Thus though DW1 got examined DW2 and DW3, attestors to substantiate his stand with regard to the execution of the Will, the same cannot be said to have been proved.

27.The Hon’ble SUPREME COURT OF INDIA in CIVIL APPEAL NO(S) 13192 OF 2024 (Arising out of Special Leave Petition (Civil) No.25645 of 2018) in GOPAL KRISHAN & ORS. Vs DAULAT RAM & ORS. (2025 INSC

18) observed :- “ The requisites for proving of a Will are well established. They were recently reiterated in a Judgment of this Court in Kamla Pradhan and

Another (See also Shivakumar and Others v. Sharanabasappa and Others)

The principles as summarised by the former are reproduced as below:- “…10.1. The court has to consider two aspects : firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him; 10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:

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(a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will;

(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;

(d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required; 10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; 10.5. The attesting witness should speak not only about the testator’s signatures but also that each of the witnesses had signed the will in the presence of the testator; 10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with; 10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence; 10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions

before it can be accepted as the testator’s last will. In such cases, the initial

onus on the propounder becomes heavier; 15 10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will; 10.10. One who alleges fraud, fabrication, undue influence etc., has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation; 10.11. Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ”. Whether a particular feature would qualify as “suspicious” would depend on the facts and circumstances of each case.

Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc.

28.The Counsel for Plaintiff also placed reliance on the Judgment of their Lordship in Beni Chand (Since Dead) now by L.Rs., vs. Smt.Kamla

Kunwar and Others, 1976 0 Supreme (SC) 340 It is stressed upon See

Jarman on Wills (8thEx., p.50) and H.Venkatachala Iyengar v.B.N.Thimmajamma, (1959) Supp 1 SCR 426. By “free and capable testator” is generally meant that the teatator at the time when he made the

Will had a sound and disposing state of mind and memory. Ordinarily, the burden of proving the due execution of the Will is discharged if the 16 propounder leads evidence to show that the Will bears the signature of mark of the testator and that the Will is duly attested. For proving attestations, the best evidence would naturally be of an attesting witness and indeed the Will cannot be used as evidence unless at least one attesting witness depending on availability, has been called for proving its execution as required by Sec. Of the Evidence Act. But where, as in the instant case, the circumstances surrounding the execution of the Will are shrouded in suspicion, it is the duty and the function of the propounder to remove that suspicion by leading satisfactory evidence. The testatrix was advanced in age being past eighty years of age, the will contains provisions which are prima facie unnatural since the only son is disinherited under it and the testatrix died five days after making the Will. There can be no dispute that these are gravely suspicious circumstances. But the propounder has, in our opinion, offered an explanation of these circumstances which ought to satisfy a prudent mind. Ultimately, that is the test to adopt for one cannot insist on mathematical proof even where the circumstances attendant on the execution of the Will raise a suspicion as regards its due execution. The burden in testamentary cases is of a different order than in other cases in the sense that an attesting witness must be called, wherever possible, to prove execution, the propounder must remove the suspicion, if any, attaching to the execution of the Will and if there be any doubt regarding the due execution, he must satisfy the conscience of the court that the testator had a sound and disposing state of mind and memory when he made the Will. “Reasonable scepticism, not an obdurate persistence in disbelief not a resolute and impenetrable incredulity” is demanded of the testamentary judge. “He is never required to close his mind to the truth. “See Harmes v.Hinkson, (1946) 50 Cal WN 895 per Lord Du Parcq.Gajendragadkar J. who spoke for the Court in

Iyengars case (1959) Supp (1) SCR 426 at page 446 noticed these observations of Lord Du Parcq with approval and said: “It would sound 17 platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.”

29.Thus it is clear that the Will is a compulsorily attestable document and it cannot be said to have been proved unless at least one of the attestor is examined. Further he must speak before the Court with regard to the due execution and the fact that the same was signed by the executant in their presence in sound state of mind. The fact of examination is not a mere formality and he must suffice the said aspects and clear the suspicious circumstances, if any. As discussed above, though they together contended regarding the other aspects connecting the Will, there is a clear variation with regard to the place of execution thereby casting doubt about the very execution of the said Will in the manner as alleged. Thus any contention that by virtue of the said Will that life interest was created in favour of the daughter/D3 and wife of Muddada RamachandraRao/D1 and vested interest granted in favour of the sons of D2, cannot be said to have been sufficed or binding on the parties as alleged. Thus it cannot be said that the said Will/Ex.B3 cannot be said to have been proved. Thus the

additional issue no.3 is answered against the Defendant and as such the

said Will cannot be said to be binding on the Plaintiff.

30.ADDITIONAL ISSUES NO.1 AND 2 :-

For convenience sake both the issues are discussed together.

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31.As discussed above, there is no cogent evidence to show that the

Will/Ex.B3 is executed by the deceased Muddada RamachandraRao Naidu.

Be that as it may, to suffice their contention, during the cross examination of

DW1, he contended that during their childhood as they does not have any house that their mother constructed house in the gramakantam land. Thus the said property is her self acquired property. This being so, at another moment, it is suggested to DW1 that the item no.1 to 4 were acquired by the mother of DW1 i.e., by 1st Defendant through her father i.e., by the maternal grandfather of DW1. It is highly astonishing to note that in fact as per the Plaintiff, she is seeking for partition on the ground that the schedule properties are the joint family ancestral properties of Muddada

RamachandraRao Naidu and during cross examination suggested that those properties were acquired by the mother of DW1 from her father. Thus it appears that the said suit is filed on speculation.

32.Keeping this aspect on one side, to suffice their stand the Defendants submitted Ex.B5 which is the house tax receipt and Ex.B6 is the house tax demand notice issued by EO Panchyath Secretary, Narsannapeta in the name of D1. Thus it is stressed upon that the said property is standing in the name of D1. Appreciating the same, except the assessment number, there is no description of the property mentioned in the said receipts and hence there is no evidence on record to show to which property it pertains.

Mere tax receipt or demand notice may at the most show that the property 19 tax was paid and demand made in the name of the said person, but the same does not confer any right or title of the said person over the said property.

33.This being so, Ex.B2 is the original sale deed dated 10.09.2004 executed by Y. Ramarao in the name of Muddada RamachandraRao Naidu and it pertains to vacant site of an extent of 30.33 sq.yards in survey number 219 at Gattupilli village. Considering the said property, the description does not tally with any of the properties / items described in the schedule and hence apparently it is never the case of the Defendants either that the property covered under Ex.B2 is shown as one of the item. Except contending that item no.3 is the self acquired property of D1, in fact there is no documentary evidence on record to show the title or right of D1 over the same and in what manner she acquired the said property.

34.Further though it is contended that the Item no.4 belongs to third parties, there is also no evidence of whatsoever nature adduced on record to suffice the same. Thus apparently except oral contentions, there is no documentary evidence adduced with that regard to show the same and hence it can be said that the additional issues no.1 and 2 fails.

35.ADDITIONAL ISSUE NO.4 :-

Admittedly Muddada RamachandraRao Naidu is having wife, two sons and one daughter. It is to be appreciated here that in fact, the Plaintiff 20 initially filed the suit only against Defendants 1 and 2 ie., her mother-in-law and brother-in-law who are the wife and son of the deceased Muddada

RamachandraRao Naidu. When confronted during her cross examination she contended that D3 is adopted daughter of Muddada RamachandraRao

Naidu and that she was actually daughter of sister of D1 namely Lakshmi.

However as per PW2/father of Plaintiff, he readily admitted that D3 is the daughter of Muddada RamachandraRao Naidu. Further Defendants placed reliance on Ex.B7 aadhar card of D3 and Ex.B8 SSC marks certificate and stressed upon the relevant entries made therein showing the father’s name as Muddada RamachandraRao Naidu and contended that D3 is daughter of

Muddada RamachandraRao Naidu. It is to be noted that subsequently that in fact steps were taken by Plaintiff and D3 arrayed onto the record. Thus any contention that the suit is bad for non joinder or misjoinder of parties fails.

36.ISSUE NO.1 :-

This being so, it is the case of the Defendants that in fact the Plaintiff stayed for a period of less than six months with her husband Yerrannaidu and left to her parental house and did not turn up and filed this case for partition only after death of her husband for personal gain. Though she denied the same, apparently except oral contentions there is no material on record to suffice the same. This being so, it is further stressed upon by the

Defendants that Yerrannaidu suffered from fits/epilepsy and so fell down 21 from building / stairs and died. There is no dispute that he died accidentally and that he was suffering from fits/epilepsy. However it is denied that

Plaintiff left his conjugal fold and left to her parental house as he was addicted to vices and as already mentioned above, except oral contentions there is no material on record to suffice the same. Whatever may be the veracity behind the alleged contentions of PW1 having left the company of her husband Yerrannaidu, apparently there is no divorce between them.

Thee is also no dispute that they are legally wedded husband and wife. In fact it is elicited from PW3 that he belongs to Kalinga community and is related to the Plaintiff while the Defendants belong to Velama Community.

Thus it was suggested that the marriage between Yerrannaidu with the

Plaintiff is a love marriage and hence that the parents of the Plaintiff did not allow her to join the company of her husband. It is also suggested that D1 incurred expenditure for the treatment of Yeerannaidu and that the Plaintiff never cared for him, etc. Whatever it be, the said are mere oral contentions and there is no dispute regarding the factum of the Plaintiff and Yerrannaidu being husband and wife and hence that in such legal capacity, she will be definitely entitled for her share which her husband is entitled for.

37.This being so, it is pertinent to note here that as already mentioned above, at one point of time it is contended that the schedule properties are the joint family ancestral properties of the deceased Muddada

RamachandraRao Naidu while during the cross examination of DW1 it is 22 suggested that item no.1 to 4 are acquired by the mother of DW1 ie., by 1st

Defendant through her father. Thus these are self contradictory stands taken by the Plaintiff herself.

38.This being so, it cannot be ignored that as already discussed above, as appearing from record, in fact there is dispute between Muddada

RamachandraRao Naidu with his brother for which a case is pending on the file of Junior Civil Judge, Narsannapeta. It is only from OS.111/2008 that certified copy of Ex.B1/Will was obtained and filed before this Court. As emerging from evidence, there is a dispute regarding the validity or otherwise of the said Will based on which Muddada RamachandraRao

Naidu is alleged to have acquired property from his father. As elicited from

PW3, the properties were not partitioned between the brothers of Muddada

RamachandraRao Naidu. When Ex.B1 Will itself is said to have been not proved, definitely there arises a question as to the apportionment of the properties between the brothers of Muddada RamachandraRao Naidu.

39.Culminating all, there is no material on record to show the manner in which Muddada RamachandraRao Naidu is said to have acquired the schedule properties. There is also no cogent an convincing evidence on records to show that the said properties were in joint possession and enjoyment of Defendant and they are partitionable being the ancestral properties as alleged. There is also contradictory stand taken by Plaintiff at one point of time that they are the ancestral properties of Muddada 23

RamachandraRao Naidu and at another moment that they are acquired by

D1 from her father. Above all, there is no documentary evidence to show actually to whom the said property belongs and the nature of property whether it is ancestral property or otherwise. If at all, the stand taken by the

Defendants to be taken to be true, that Muddada RamachandraRao Naidu acquired the same by virtue of Ex.B1, as already mentioned above, Ex.B1 stood not probablised. Further admittedly there is a civil suit pending the brothers. This being so, when the property issues were not settled between the brothers of Muddada RamachandraRao Naidu, then question of partition of properties between the legal heirs of Muddada

RamachandraRao Naidu does not arise.

40.As already mentioned above, it is the case of the Defendant that their father acquired one shop and one house under Ex.B1 Will executed by Late

Simhachalam. There is no clarity given as to which item number the said property corresponds to. On the other hand, as already discussed above, when the suit is pending challenging the genuinety or otherwise of the said

Will, between the brothers, definitely no right flows to the children of

Muddada Ramachandra Rao under the said Will or under Ex.B3 Will.

41.Mere filing of tax receipt in the name of D1 does no pave way to infer her title over the property and in fact the details of the property are lacking in the said receipt and there is also no evidence to show, how any why the said property is standing in her name. The said lapse on the other hand 24 does not entail any benefit to the Plaintiff either as it cannot be ignored that the burden of proof lies upon her and she cannot rest her case on the weakness of the Defendant. However since there is a specific issue framed regarding whether the item no.3 is the self acquired property of D1, in fact except filing tax receipt no other documents filed before this Court and there is also no cogent evidence to show how she acquired the same. Thus it can be said that D1 could not suffice her stand that Item no.3 is her self acquired property.

42.This being so, it is to be noted that initially as the Plaintiff merely arrayed D1 and D2, the schedule properties were pleaded to be divided into three equal shares and for allotment of one such share to Plaintiff.

However during the course of evidence it is amply established that D3 is the daughter of Muddada RamachandraRao Naidu and subsequently the

Plaintiff has taken necessary steps and got D3 impleaded. But when the properties between the brothers of Muddada RamachandraRao Naidu are not settled and when there is no cogent evidence to show to whom the said properties belongs to and the nature of property, this Court is of view that though the Plaintiff, being the wife of Yerram Naidu is entitled for his share, but since it appears to be premature and since the Plaintiff failed to suffice her contentions regarding the ownership or otherwise of the said properties, that the present suit is devoid of merits and no such relief of partition can be granted at this juncture. These issues are answered accordingly.

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43.ISSUE NO.2 :-

In the result, the present suit stands dismissed. In the facts and circumstances of the case, there shall be no order as to costs.

Partly typed by me and partly typed to dictation by the Stenographer on my laptop, corrected and pronounced by me in the open court, this the 07th day of April, 2025.

Sd/- K.V.L.Hima Bindu

Principal Civil Judge (Senior Division),

Srikakulam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff : PW1: Muddada Rajyalakshmi PW2: Daneti Ramanamma PW3: Metta ChinnaRao PW4: Metta Srinivasa Rao

For Defendants : DW1: Muddada Balakrishna DW2: Muddada Apparao DW3: Surapu Simhachalam

DOCUMENTS MARKED

For Plaintiff : Ex.A1: Legal Notice issued by the Plaintiff dated 30.05.2017

Ex.A2: Reply Notice got issued by the Defendants dated 27.06.2017

Ex.A3: Death Certificate of Plaintiff husband dated 13.12.2016

For Defendants: Ex.B1: Certified copy of Will, dated 07.02.1997 executed by Muddada Simhachalam Naidu

Ex.B2: Original Registered sale deed, vide Doc.No.16/2004, dated 10.09.2004 executed by Y.Ramarao in favour of Muddada Rama Chandra Rao Naidu

Ex.B3: Original Will, dt.16.05.2011 executed by Muddada Ramachandra Rao Naidu.

Ex.B4: Meeseva copy of Family Member Certificate issued by Tahsildar, Narasannapeta dated 03.01.2015 26

Ex.B5: Original House Tax receipt issued by E.O.Panchayat Secretary, Narasannapeta Panchayat in the name of D1

Ex.B6: House Tax demand notice issued by E.O.Panchayat Secretary, Narasannapeta panchayat in the name of D1

Ex.B7: Aadhar Card of 3rd Defendant

Ex.B8: Original SSC marks memorandum of 3rd Defendant issued by SSC board of A.P.

Sd/- K.V.L.Hima Bindu

Principal Civil Judge (Senior Division),

Srikakulam.

1 /Fair Judgment//

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION),

SRIKAKULAM.

Present :- Smt. K.V.L. Hima Bindu,

Principal Civil Judge (Senior Division),

Srikakulam.

WEDNESDAY, THIS THE 02 nd DAY OF APRIL, 2025

ORIGINAL SUIT No. 401 / 2018

Between :

Adasari Mahalakshmi, W/o.Anchu, aged 40 years, House hold duties, R/at Door No.1-23, Neradi village, Gurandi Post, Bhamini Mandal, Srikakulam District. .… Plaintiff.

And :

1. Adasari Anchu, son of late Chanchu, aged 42 years, cultivation, r/at Neradi village, Bhamini Mandal, Srikakulam District.

2. Adasari Ravi, son of late Anchu, aged 35 years, cultivation, r/at Neradi village, Bhamini Mandal, Srikakulam District.

3. Adasari Ranjesh, son of Anchu, aged 30 years, cultivation, r/at Neradi village, Bhamini Mandal, Srikakulam District.

4. Adasari Mattu, son of late Chanchu, aged 40 years, cultivation, r/at Neradi village, Bhamini Mandal, Srikakulam District.

5. Adasari Nagayya, son of Madhava Rao, aged 41 years, cultivation, r/at Neradi village, Bhamini Mandal, Srikakulam District.

6. Urlothu Santha Rao @ Santha, son of Jayanth, aged 50 years, cultivation, r/at Neradi village, Bhamini Mandal, Srikakulam District.

… Defendants.

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This suit coming before me on 04.03.2025 for final hearing in the presence of Sri Jallu Tirupati Rao, Sri M.Chiranjeevi, Jallu Someswari, Learned Counsels for the Plaintiff; Sri D.V.Ramana Murty, Learned Counsel for Defendant No.1; Sri S.Rudrasekhara Rao, Learned Counsel for Defendants 2 to 6 and the matter having been heard and stood over for consideration till this day, this court delivered the following :

J U D G M E N T

01.The present suit is filed seeking the relief of Permanent Injunction restraining the Defendants, their men and agents from interfering into the peaceful possession and enjoyment of the Plaintiff’s over the suit schedule property and for granting costs and such other reliefs as this Court deems fit and proper in the Interests of Justice.

02.The plaint averments goes to show that the first Defendant married one Sakuntala and they were blessed with children who are 2nd and 3rd

Defendants herein. The 4th Defendant is the brother of 1st Defendant and the 5th and 6th Defendants are married and are residing separately. The wife of the 1st Defendant by name Sakuntala died nearly 27 years back.

Later he married the Plaintiff about 24 years back as per Hindu caste customs. The Plaintiff was blessed with 3 female children through the 1st

Defendant. The Plaintiff and 1st Defendant performed the marriage of their elder daughter by name Sandhya and the remaining two daughters are unmarried but the Plaintiff and first Defendant are residing separately due to family disputes.

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03. It is submitted that the Plaintiff is the owner of the suit schedule properties. The 1st Defendant out of love and affection gave Ac.3.31 cents which are the suit schedule properties by way of Registered settlement deed dated 23.05.2016 in favour of the Plaintiff. Immediately after execution of the Registered settlement deed, the property was given in possession and enjoyment of the Plaintiff. As such, the Plaintiff has been in peaceful possession and enjoyment of the suit schedule properties from the date of settlement deed. After verifying the same, the Tahsildar, Bhamini Mandal issued Pattadar pass book and Title deed in respect of the suit schedule properties. Recently on 04.09.2018 the Tahsildar, Bhamini also issued IB

ROR Certificate in favour of the Plaintiff. Thus the Plaintiff is having valid title, possession and enjoyment over the suit schedule properties.

04.However the 1st Defendant without having any manner of right, title, possession and enjoyment over the suit schedule properties, in the 2nd week of October, 2018 in a highhanded manner making efforts to trespass into the suit schedule properties with the active assistance of other

Defendants. The said act was brought to the notice of elders of the locality but there was no use. The Defendants are powerful, lawless persons, having much influence and thereby harassing the Plaintiff from not cultivating the suit schedule properties. Hence this suit seeking the relief of permanent injunction.

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05.Written Statement is filed by the 1st Defendant denying the Plaint averments. As per Defendant, he is illiterate and does not know reading and writing of any language. The Registered settlement deed was got obtained by undue influence and misrepresentation and by informing that the said document is required to secure loan facility from Banks. The

Defendant came to know about the fraud and mischief got committed by

Plaintiff through her relative. The Defendant No.1 gained knowledge about the fraud and got shocked to know the contents only after receiving the notices from this Court. The suit property is the undivided property and the

Defendant No.1 is ready to allot the respective shares to the other sharers.

Hence in all prayed to dismiss the suit with costs.

06. Written Statement is filed by the Defendant Nos.2 to 6 denying the

Plaint averments and they contended that the suit schedule property is an undivided ancestral joint family property in the peaceful cultivation, possession and enjoyment of the Defendant Nos.2 and 3 and other family members of the Defendant No.1. The Defendant No.1 has no exclusive right, title and interest in respect of the undivided Hindu joint family suit schedule property. The Defendant Nos.2 and 3, being the sons of the

Defendant No.1 are coparceners. Besides, the Defendant No.1 through the Plaintiff begot three daughters and at the time of marriage of Sandhya, amounts and valuables were given by the 1st Defendant. The suit schedule property is undivided Hindu joint family property and is liable for partition 5 amongst the co-sharers. The Defendants have been in peaceful possession and enjoyment of the Plaint schedule properties and they have been raising paddy crop and cotton crop in some extent in this year. The suit schedule property is only source of income for their entire family and they depend upon only usufructs of this suit schedule property. This fact is known to the

Plaintiff and each and every cultivator of the village Neradi and neighbours and surrounding village. The Defendants demanded for an amicable partition of the suit schedule property and other properties. The Defendant

No.1 under misguidance and evil advise got fabricated the suit document

No.133/2016 dated 23.05.2016 in order to grab away the same and to avoid partition. The Plaintiff and the Defendant No.1 had collusively and fraudulently created document which is void abinitio and invalid. The

Defendant No.1 is not competent to execute any gift settlement deed in favour of the Plaintiff. The Plaintiff is the 2nd wife of Defendant No.1 and the

Defendant No.1 is puppet of Plaintiff and they created above said document to grab away the joint family property. The Plaintiff never received any possession from anybody and never cultivated the suit schedule property till filing of the suit. The Defendant Nos.2 and 3 are copartners and the suit for permanent injunction is not maintainable under law. The 1st Defendant also previously obtained loan from S.V.G.Bank, Battili and the amounts given to the Plaintiff. She is young and brought by the Defendant No.1 and he is the puppet of the Plaintiff and created said Registered sale deed and the entire 6 documents are recent documents created only on the basis of said settlement deed.

07.It is further submitted that the Revenue records filed i.e., Pattadar pass book, Title deed book, 1-B (ROR) record and present meeseva adangal issued by the Revenue people are the outcome of fraudulent document i.e., Registered settlement deed dated 23.05.2016 document

No.133/2016. They neither create title or extinguish the same in favour of

Defendant No.2 and 3 which are conferred by their birth. The recitals of para No.II of the said settlement deed line No.II clearly reveals that the suit schedule properties are ancestral property in nature. At the time of execution of the settlement deed dated 23.05.2016 the 2nd and 3rd

Defendants are aged about 37 and 32 years. The suit at its out set is not maintainable under law. It is a collusive suit got filed by the Defendant No.1 through the Plaintiff which is a champtries litigation and liable to be rejected for want of cause of action and title. While contending that the Plaintiff has no title to file the suit of this nature i.e., permanent injunction against the co partners, and that there is no cause of action for filing of the suit, that the suit is bad for non joinder of necessary parties as the other co partners who is the daughter of the Plaintiff was not made as parties, and since the

Plaintiff has no right to bring a suit against the co partners, hence in all prayed to dismiss the suit with costs.

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08.Upon hearing the rival contentions of both the parties, the following issues were settled for trial by my predecessor :

1) Whether the Plaintiff is entitled for permanent injunction against the Defendants 1 to 6 as prayed for ?

2) To what relief ?

09.During the course of Plaintiff’’s evidence, the Plaintiff got herself examined as PW1 and three independent witnesses as PW2 to PW4 and placed reliance on Exs.A1 to Ex.A10 on her behalf. To rebut the case of the

Plaintiff, the 2nd and 5th Defendants got themselves examined as DW1 and

DW3 and one independent witness as DW2 and placed reliance on Exs.B1 to Ex.B5.

10. Heard Counsels for Plaintiff and D2 to D6. The counsel for D2 to D6 filed memo along with citation which shall be discussed where relevant.

Inspite of conditional orders D1 did not choose adduce arguments on his behalf, hence arguments on behalf of D1 are deemed heard. Perused material on record.

11.ISSUE No.1 :

Thepresent suit is filed by the Plaintiff seeking the relief of

Permanent injunction against the Defendants 1 to 6.

12.The admitted facts of this case are that the Plaintiff is the second wife of Defendant no.1/Anchu. That he married her about 23 years back after 8 the death of his first wife Shakuntala. The Defendants 2 to 4 are the children of Shakuntala and Defendants 5 and 6 are known to the

Defendants 2 to 4.Admittedly thePlaintiff is blessed with three daughters through the Defendant no.1 and while her first daughter is married that the other two are unmarried.

13.Here it is also pertinent to note that except filing his written statement and contending that the schedule properties are not partitioned and that he has no objection for partition of the same and contending that the said document was obtained by fraud and misrepresentation, the 1st Defendant did not choose to take active part in the trial nor cross examined any of the witnesses nor adduced any evidence on his behalf.

14.This being so, while it the case of the Plaintiff that the Defendant no.1 executed Ex.A1 registered settlement deed in favour of the Plaintiff pertaining to the schedule property and that since then she has been in peaceful possession and enjoyment of the same, per contra it is the case of the Defendants 2 to 6 that the schedule properties are ancestral properties and more so, as Defendants 2 and 3 were majors as on the date of alleged execution of Ex.A1/settlement deed, that Defendant no.1 cannot unilaterally execute any such deed and further contended that it is they who are in possession and cultivation of the same and paying taxes and they came to know the said details and fraud played by the Plaintiff only after receiving summons in this case.

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15.To substantiate their contention, the Plaintiff got examined herself as

PW1 and filed her chief affidavit in lieu of her chief examination and reiterated the entire contents as in the Plaint. Further she got examined

PW2, who is her son in law and PW3, who is her brother who both filed their chief affidavits and reiterated that by virtue of Ex.A1 settlement deed that the Plaintiff is in possession and enjoyment of the schedule property and that the Defendants without having any manner of right or title are interfering into her possession.

16.This being so, to rebut the case of the Plaintiff the 2nd Defendant got himself examined as DW1 and the 5th Defendant as DW3 and filed their chief affidavit in lieu of their chief examination and reiterated the entire contents as in their written statement and also got examined one independent witness as DW2 who contended that he is having land adjacent to the land of Defendant no.2 and hence that he is aware that the

Defendants are in possession and enjoyment of the same and cultivating the said lands.

17.It is pertinent to note that to suffice her contentions of alleged possession and enjoyment, PW1 placed reliance on Ex.A1 which is the registered settlement deed and Ex.A2 to Ex.A10 which are the revenue records of which Ex.A2 is the pattadar pass book and Ex.A3 is the title deed. Admittedly the relevant entries made in the said records (Ex.A2 and 10

Ex.A3) show the nature of acquisition of land as purchase and there is no reference of Ex.A1 settlement deed. So also, coming to Ex.A4 to Ex.A6 I-B

ROR in respect of survey numbers 42/2, 17/2, 77/2 also seems to be standing in the name of the Plaintiff, while as elicited by the Defendants the nature of acquisition of land is shown as purchase and there is no reference of Ex.A1 settlement deed. Similarly Ex.A7 to Ex.A10 which are the adangals pertaining to the survey numbers 59/2, 17/2, 42/1 and 77/2 also seems to be standing in the name of the Plaintiff while as elicited by the

Defendants the nature of acquisition of land is shown as purchase and there is no reference of Ex.A1 settlement deed. However only because the nature of acquisition of land is shown as purchase (konugolu), it is not clarified how the said aspect is going to effect the contention of the Plaintiff regarding her possession.

18.With this regard the counsel for the Defendants placed reliance on the judgment of their Lordship in State of Punjab and others Vs

Bhagwanthpal Singh @ Bhagwanth Singh (deceased) through LRs reported in 2024 SAR (Civ) 1150 wherein it is held by their Lordships that merely because there are entries of the names of the parties in the revenue record that it cannot confer any title upon him. The revenue records have to be taken into consideration for the purpose of realising tax by the municipal corporations or land revenue by the gramshabas. Thus stressed upon that though entries in Ex.A2 to Ex.A10 reflect that the name of the Plaintiff is 11 shown in the revenue records but she cannot claim any title to the same and cannot be considered that she is in possession and enjoyment of the same.

19.With this regard it is to be noted that as elicited from PW1 during her cross examination, in fact though it is her name which is reflected in the revenue records, that till date, it is the Defendants only who are paying the tax. To suffice their contentions the Defendants filed Ex.B2 which is the original land tax receipts and Ex.B5 which is the water tax receipt dated 09.01.2021. Thus it is stressed upon that the Defendants are in cultivation of the same and looking after the affairs of the schedule property. Since

Ex.B5 pertains to the period after filing of this suit, cannot be said to form basis of the contention of the Defendants. However it is pertinent to note that PW1 admitted that the paddy crop in the schedule property was raised by the Defendants and then again volunteered that she cultivated the same till last year but the Defendants cultivated the same during this year.

Whatever may be the veracity behind the alleged contention, this fact on one hand reflects Plaintiff admitting that the Defendant are cultivating the schedule property, thus it probablises their possession and cultivation of the same. In such circumstances definitely she will not be entitled for the relief of permanent injunction.

20.On the other hand, even if she is not in possession of the said property, after filing of the suit and was dispossessed or otherwise, 12 definitely bare suit for injunction does not lie and on this count also the

Plaintiff is not entitled for the relief as prayed for.

21.I deem it pertinent to refer to the Judgment of their Lordship in

Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors dt.25 March, 2008 Equivalent citations: AIR 2008 SUPREME COURT 2033 wherein ti was observed as under :-

The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled.

11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession isinterfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have 13 to sue for declaration of title and the consequential relief of injunction.

Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

22.To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either 14 specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

23.Thus it is clear that when there is definitely a dispute regarding the title and right over the schedule property, definitely a bare suit for injunction 15 does not lie. In fact the 1st Defendant, though not contested the suit, submitted in his written statement denying the very execution of the settlement deed and that it was obtained by fraud. On the other hand, there is also contest that the said properties are ancestral properties and hence that the 1st Defendant even if presumed to have executed any such document cannot have any right to, more so when the Defendants 2 and 3 were majors as on the said date. Ex.B1 and Ex.B4 which are the title deeds in the name of the 1st Defendant clearly show that the schedule properties are ancestral properties. Thus when these issues are crucial to appreciate, if the Plaintiff is in rightful possession of the said properties by resting her case on Ex.A1, definitely the very execution, manner of possession and propriety have to be looked into which is not proper in the suit for bare injunction. Though the title can be incidentally looked into, as mentioned above, the points raised by the Defendants needs serious concern and when the 1st Defendant is also disputing the manner in which Ex.A1 came into existence, definitely, it needs concern.

24. Moreover admittedly the schedule properties are all ancestral properties, but as per the Plaintiff, that they were partitioned. Apparently there is no such evidence placed on record with that regard and moreover as per the Defendants, no such partition took place. Further it was elicited from PW4, daughter of Plaintiff, that no such partition took place.

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25.The counsel for the Defendants also placed reliance on the Judgment of their Lordship in Jharkand State Housing Board Vs Anirudh Kumar Sahu and others reported in 2018 SAR (Civil Supp.II) 20 wherein it was held that a mere suit for injunction does not lie only when the Defendant raises a genuine dispute with regard to the title and when he raises a could over the title of the Plaintiff, then necessarily in those circumstances, Plaintiff cannot maintain a bare suit for injunction.

26.Culminating all, apparently even as per Plaintiff/PW1 and her daughter/PW4, the suit schedule properties are ancestral properties. There was no partition effected till date. There is also dispute with regard to the manner in which Ex.A1 came into existence. As admitted by PW1, it is the

Defendants who have been paying the taxes till date and it is the

Defendants who are presently cultivating the schedule properties. Though she further contended that till now she was cultivating the same, her admission that presently it is under cultivation of the Defendants, it clearly reflects that she is not in possession of the said property. In the circumstances detailed above, in the absence of seeking any relief regarding the title and possession, bare suit for injunction does not lie.

Thus this issue is answered accordingly against the Plaintiff.

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27. ISSUE NO.2 :-

In the result, the suit stands dismissed. In the circumstances of the case, each party do bear their own costs.

Partly typed by me on my laptop and partly typed by the Stenographer Grade II, corrected and pronounced by me in the open Court, on this the 02nd day of April, 2025.

Sd/- K.V.L. Hima Bindu

Principal Civil Judge (Senior Division),

Srikakulam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs :

PW1: Addasari Mahalaxmi PW2: Meesala Chalapathi PW3: Balaka Sriramulu PW4: Addasari Sabitha

For Defendants :

DW1: Addasari Ravi DW2: Volurouthu Minna Rao DW3: Addasari Nagayya

DOCUMENTS MARKED

For Plaintiff : Ex.A1: Registered settlement deed dated 23.05.2016 executed by Addasari Anchu in favour of the Plaintiff

Ex.A2: Pattadar Pass book issued in favour of the Plaintiff

Ex.A3: Title deed issued in favour of the Plaintiff

Ex.A4: I-B ROR in respect of survey No.42/2, dated 04.09.2018

Ex.A5: I-B ROR in respect of survey No.17/2 and 59/2, dated 04.09.2018

Ex.A6: I-B ROR in respect of survey No.77/2, dated 04.09.2018

Ex.A7: Meeseva adangal, dt.22.10.2018 in respect of Survey No.59/2 shown in item No.2.

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Ex.A8: Meeseva adangal, dt.22.10.2018 in respect of Survey No.17/2 shown in Item No.1.

Ex.A9: Meeseva Adangal, dt.22.10.2018 in respect of Survey No.42/2 shown in Item No.3

Ex.A10: Meeseva Adangal, dt.22.10.2018 in respect of Survey No.77/2 shown in Item No.2.

For Defendants:

Ex.B1: Original Title deed book issued by the Tahsildar, Bhamini in favour of D1 for survey number 77/1 of Bommika village, Bhamini Mandal.

Ex.B2: Original land tax receipts (six in number) issued by the Revenue authority in favour of D1.

Ex.B3: Loan Book issued by Sri Visakha Grameena Bank Authority, Bhamini in favour of D1.

Ex.B4: Original Title deed book issued by Tahsildar, Bhamini in favour of D1 for survey No.42/2, 63/6, 66 of Neradi village in Bhamini Mandal

Ex.B5: Original water tax receipt, dated 09.01.2021 issued by VRO, Bommika village, Bhamini mandal.

Sd/- K.V.L. Hima Bindu

Principal Civil Judge (Senior Division),

Srikakulam.

1 //Fair Judgment//

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION),

SRIKAKULAM.

Present:- Smt. K.V.L. Hima Bindu,

Principal Civil Judge (Senior Division), Srikakulam.

Tuesday, this the 01st day of April, 2025.

Original Suit No. 59 / 2023

Between :

Menda Chandrasekhar, son of Late Akkanna, aged about 41 years, Real Estate Business, R/at P.N. Colony, Plot No.38, Gujarathipeta, Srikakulam town and District. … Plaintiff And :

Shaik Amith, S/o.Anwar, aged 39 years, Business, D.No.16-24-87, Tavitayya Cheri, Hayath Nagar, Gujarathipeta, Srikakulam Town and District. … Defendant

This suit having come up before me on 01.04.2025 for final hearing in the presence of Sri Jallu Thirupathi Rao, Sri M.Chiranjeevi and Smt.Jallu Someswari,Learned counsels for Plaintiff and

Sri G.Srikrishna Prasad, Sri K.Dhilleswara Rao, Sri Ampolu

Rambabu, Learned counsels for Defendant and upon hearing both sides and matter having been heard and stood over till this day for consideration, this Court delivered the following :

J U D G M E N T

01.The present suit is filed based on promissory note for recovery of an amount of Rs.49,98,000/- together with interest at the rate of 18% per annum and for costs and to pass such other reliefs as this Court deems fit and proper in the interests of justice.

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02.The plaint averments in brief are as under :

The Defendant borrowed an amount of Rs.40,00,000/- from the

Plaintiff on 18.03.2022 for clearing of house hold expenses and real estate Business purpose and duly executed the promissory note on the even date promising to repay the same together with interest at the rate of 18% per annum on demand or order. However inspite of repeated requests personally and through elders, the Defendant failed to discharge his liability. Hence, the present suit for recovery of the said amounts together with interests and costs.

03.Written statement is filed by the Defendant denying the petition averments and contended that he never borrowed such huge amount from the Plaintiff in the presence of attestors and scribe as alleged in the

Plaint. It is further submitted that he filed insolvency Petition before this court vide I.P. No.15/2003 and the Petitioner is shown as 2nd Respondent.

04.It is submitted that with the help of attestors and scribe, the Plaintiff to grab huge amounts from the Defendant filed this false suit. The attestors and scribe are not known to the Defendant and hence the

Defendant is not liable to pay any amounts due under the promissory note dated 18.03.2022 and that the Plaintiff is not having capacity to give such huge amounts towards loan and in all stated that the suit is not maintainable under law and prayed to dismiss the present suit with costs.

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05.After hearing both the parties and considering the material on record, the following issues were settled for trial by my predecessor :

1) Whether the suit promissory note dated 18.03.2022 for an amount of Rs.40,00,000/- is true, valid and binding on the defendant as alleged ?

2) Whether the Plaintiff is entitled for recovery of amount of

Rs.49,98,000/- together with interest @ 18% per annum as prayed for ?

3) To what relief ?

06.During the course of Plaintiff’s evidence the Plaintiff got examined himself as PW1 and 1st attestor and Scribe of Suit Promissory note were got examined as PW2 and PW3 and placed reliance on Ex.A1. However as the Defendant did not choose to adduce any defence evidence on his behalf inspite of granting ample time and opportunity, hence was set exparte.

07.Heard both sides. Perused material on record.

08.ISSUE NO.1 and 2 :-

Since the issues are intertwined, to avoid repetition and for the sake of brevity and convenience sake, discussed together under one head.

09.The case of the Plaintiff is that the defendant borrowed an amount of Rs.40,00,000/- from him on 18.3.2022 and duly executed Ex.A1 4 promissory note in the presence of attestros PW2 and another which was scribed by PW3. However inspite of repeated requests that he failed to discharge his liability and hence the present suit.

10.To substantiate his contention, he got examined himself as PW1 and filed his chief affidavit in lieu of his chief examination and reiterated the entire contents as in the Plaint. Further PW2 who is the attestor and

PW.3 who is the scribe also corroborated the case of PW1 with regard to the execution of Ex.A1 promissory note and passing of consideration under the said document. However the defendant did not choose to cross examine them and hence their testimony remained unchallenged.

This being so, even during the course of Defendant’s evidence the defendant did not choose to turn up or adduce any evidence on his behalf and hence was set exparte. Thus the only evidence on record is that of PW1 to PW3 which remained unchallenged. Thus in light of testimony of PW1 to PW3 it can be said that the promissory note/Ex.A1 is true, valid and binding on the Defendant.

11.In the absence of any evidence to show that the Defendant discharged his liability, the Plaintiff is definitely entitled for recovery of the said amounts as prayed for. Thus issue nos. 1 and 2 are answered accordingly in favour of the Plaintiff.

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12. ISSUE NO.3

In the result, the present suit is decreed with costs in favour of the

Plaintiff for recovery of an amount of Rs.49,98,000/- (Rupees Forty Nine

Lakhs Ninety Eight Thousand only) together with interest @ 6% per annum from the date of suit till realisation on the Principle amount of

Rs.40,00,000/- (Rupees Forty Lakhs Only).

Partly typed by me and partly typed to dictation by the Stenographer Grade-II on my laptop, corrected and pronounced by me in open Court, this the 01st day of April, 2025.

Sd/- K.V.L. Hima Bindu

PRINCIPAL CIVIL JUDGE (SENIOR DIVISION),

SRIKAKULAM.

Appendix of evidence

Witnesses examined

For Plaintiff:

PW1: Menda Chandrasekhar PW2: K.Srinivasa Rao PW3: Sundarapilli Pola Rao

For Defendant: - None -

Documents marked

For Plaintiff:

Ex.A1: Original Promissory note dated 18.03.2022 for an amount of Rs.40,00,000/-

For Defendant:

- NIL -

Sd/- K.V.L. Hima Bindu

PRINCIPAL CIVIL JUDGE (SENIOR DIVISION),

SRIKAKULAM.