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IN THE COURT OF THE IV ADDL. DISTRICT JUDGE, ANANTAPUR
Present: Sri K.V.Vijaya Kumar., B.Com., LL.M.,
FAC IV Addl. District judge, Anantapur.
Friday, the 16 th day of March, 2012.
Appeal Suit No.26/2009
Between:
1. Boya Nagappa, S/o Eerappa, aged 59 years, died by L.Rs.4 to 7
2. Boya Rajamma.
3. Boya Palaiah.
4. G.Marekka.
5. G.Lakshmanamurthy.
6. G.Palaiah.
7. G.Balakrishna.… Appellants/Defendants.
And
1. K.Hanumantharayudu.
2. K.Eeranna.
3. K.Palaiah.
4. K.Nagappa.
5. K.Krishna Murthy.
6. K.Sreenivasulu.
7. K.Hanumantharayudu.
8. K.Palakshi.
9. K.Akkamma.
10. K.Ashok Gajapathi.
11. K.Rajeswari.
12. K.Padmavathi. …. Respondents/Plaintiffs.
This Appeal is against the Decree and Judgment passed in
O.S.No.41/1999, dt.10.6.2008 by the Junior Civil Judge, Kalyandurg.
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Between:
1. K.Hanumantharayudu.
2. K.Eeranna.
3. K.Palaiah.
4. K.Nagappa.
5. K.Krishna Murthy.
6. K.Sreenivasulu.
7. K.Hanumantharayudu.
8. K.Palakshi.
9. K.Akkamma.
10. K.Ashok Gajapathi.
11. K.Rajeswari.
12. K.Padmavathi. …. Plaintiffs.
And
1. Boya Nagappa, S/o Eerappa, aged 59 years, died by L.Rs.4 to 7
2. Boya Rajamma.
3. Boya Palaiah.
4. G.Marekka.
5. G.Lakshmanamurthy.
6. G.Palaiah.
7. G.Balakrishna.… Defendants.
This Appeal is coming on 9.03.2012 for final hearing before me in the presence of Sri N.C.Sampath Kumar, Advocate for the Appellants/Defendants and of Sri N.R.K.Mohan, Advocate for the Respondents/Plaintiffs and on perusing the material papers on record and the matter having stood over for consideration till this day, this Court delivered the following:
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JUDGMENT
This is an appeal suit filed by the Appellants/defendants against the judgment and decree in O.S.41/1999 for grant of permanent injunction passed by the Junior Civil Judge, Kalyandurg on 10.6.2008.
2.The facts of the suit in brief are as follows:
About seventy years ago the then Tahsildar, Kalyandurg had assigned an extent of Ac.27.35 cents in Sy.No.238 of Jambugumpala village in favour of one Kanchempalli Boya Kallu Hanumanthu @ Kallu Hanumanthappa in
D.A.R.Dis.No.1691339. Since then the assignee was in possession and enjoyment of the suit property. The said Hanumanthappa had died leaving behind him his four sons, namely Boya Pedda Polaiah, Obilesappa, Ramappa and Chinna Polaiah. The said Polaiah has died leaving behind him his two sons
B.Hanumantharayudu and B.Eeranna the plaintiffs 1 and 2 herein.
Obulesappa died leaving behind him his three sons Palaiah, Nagappa and
Krishna Murthy who are plaintiffs 3 to 5 herein. Ramappa died without leaving any separate heirs and without issues. Chinna Palaiah also died leaving behind his sons Srinivasulu, Hanumantharayudu and palakshi who are the plaintiffs 6 to 8 herein. Being the legal heirs of Hanumanthappa, the present plaintiffs have been in possession and enjoyment of entire plaint schedule property dividing it into 8 items. The plaintiffs 1 and 2 are in possession of the plaint schedule property. The M.R.O., Kundurpi has issued pattadar pass book and title deeds infavour of the plaintiff in respect of the land being enjoyed by them.
3. In the mean time the defendants who are strangers to the plaint schedule property and to the family of the plaintiffs are now trying to interfere with the peaceful possession and enjoyment of the plaintiffs. But the defendants are openly proclaiming in the village that they would not allow the plaintiffs to show the groundnut in the plaint schedule property. Therefore, the plaintiffs are constrained to file this suit for permanent injunction.
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4.The brief averments of the written statement filed by D.3 adopted by D.2 are as follows:
The defendant No.1 has died during the pendency of the suit. Thereby the defendants 4 to 7 are added as L.Rs of defendant No.1. They have also filed a memo adopting the written statement filed by the defendant No.3.
The genealogical tree was also filed along with the written statement showing the common ancestors of four plaintiffs and defendants. The common ancestor Boya Dasappa has three sons namely, Boya Obulesappa,
Boya Gadeeranna and Boya Dasanna. Boya Obulesappa has got one son Kallu
Hanumanthappa. Boya Gadeeranna has got one son Palaiah. Boya Dasanna has three sons by name Boya Eerappa, Boya Karipalaiah and Boya
Gadeerappa. Boya Eerappa has got one son by name Boya Nagappa who is the first defendant herein. Boya Kadipalaiah has got one son by name Palaiah who is the third defendant herein.
5.The allegation that the land in an extent of Ac.27-35 cents was assigned in favour of Kallu Hanumanthu and he was in exclusive possession and enjoyment of the property is a blatant lie invented for the purpose of this suit. Boya Obulesappa, Boya Gadieeeranna, Boya Dasanna and their children were the members of the Hindu joint family and they were living and cultivating the land jointly. After the death of Boya Obulesappa his son Kallu
Hanumanthappa was managing the joint family and the assignment of the suit survey number is for the benefit of joint family and the suit property was thrown into the common hatch potch of joint family and as such plaint schedule property has always been treated as joint family property. Apart from the suit property, the joint family was in possession of land in Sy.No.151 measuring Ac.15.11 cents and Sy.No.139 measuring Ac.9-02 cents and
Sy.No.161 measuring Ac.0-80 cents respectively. There is no absolutely no division of property by metes and bounds by the branches of the above said persons and they have been cultivating the aforesaid lands including the plaint schedule property after division of the joint family members in status. The 5 defendants have been cultivating the half of the extent on the northern side of
Suit Sy.No. and the plaintiff’s branch have been cultivating the remaining half extent on southern side. The lineal descendants of Gadeeranna have been cultivating Sy.No.161. Likewise the lineal descendants of Boya Obulesappa,
Boya Gadeeranna and Boya Dasanna have been cultivating Sy.No.151 and
Sy.No.139 equally. The joint enjoyment right from the date of acquisition establishes that the suit schedule property is ancestral joint family property and the ancient ridges in fact establish the said fact. There is a well established ridge running east to west dividing the suit schedule property into two halves that also establishes the fact that the defendants 3 and 2 are cultivating their property. As nobody is co-operating for sub-division and mutation of the land, the third defendant and other lineal descendants filed a suit in O.s.No.143/88 on the file of Senior Civil Judge, Anantapur for partition and separate possession. After institution of the suit, elders intervened and advised that the existing cultivation with reference to ridges is fair and equitable with reference to good and bad soil and advised all the parties to the suit to continue the existing cultivation and sub-divided the land and effect mutation in all revenue accounts. Here on the advice of elders, the defendants have given up their right over the other land in which they are not in possession and enjoyment and on the said advice, the suit filed in
O.s.143/88 is allowed to be dismissed. The plaintiffs have suppressed all the
material facts and relationship of the defendants with the plaintiffs, the plaintiffs have manipulated the paper subdivision and obtained pattadar pass book in collusion with the Village Administrative Officer. The defendants having come to know about the illegal act of the plaintiffs, have preferred an appeal before the R.D.O., Dharmavaram. The said R.D.O., by his order, dt.22.2.1998 set aside the order of granting pattadar pass books and directed to issue revised pattadar pass books to the extents as laid down in the order.
The first plaintiff further preferred an application in pursuance of the notice issued by Mandal Revenue Officer. Thereby the defendants had also 6 presented a representation to the M.R.O., and the enquiry under the pattadar pass books act is pending before the competent authority. Having full knowledge about the orders passed by the R.D.O., and pending knowledge of the order of the R.D.O., and pending of enquiry under the Act yhe plaintiffs are guilty of pleading that the pattadar passbooks and title deeds are issued in favour of the father of the plaintiffs. There is absolutely no sub-division of the suit Sy.No as 238-1 to 8 and the said division is manipulated and the R.D.O directed the said division of the said Survey Number. As the defendants are in possession and enjoyment of the northern portion of the suit survey number, the question of the defendants interference of the possession of the plaintiffs does not arise. As this defendant has no possession over the southern half, this defendant has absolutely no need or occasion to interfere with the possession of the plaintiffs. There is absolutely no cause of action for the plaintiffs to file the Suit and the cause of action alleged in the plaint is not correct. The suit is liable to be dismissed.
6. Basing on the pleadings of the parties, the following issues are settled for trial:
1. Whether the plaintiffs are entitled for permanent injunction as prayed for?
2. To what relief?
The following additional issued are framed between Issue Nos.1 and 2 1 (a) Whether Kallu Hanumanthappa is the manager of both the plaintiffs and defendants? 1(b). Whether the suit schedule property is the joint family property?
1 (c ) Whether the plaintiffs established their right and title apart from the possession over the suit schedule property?
1 (d) Whether the defendants have been at any point of time in possession and enjoyment of the suit schedule property?
7.In the lower court on behalf of the plaintiffs, P.Ws.1 to 3 are examined and Exs.A.1 to A.31 documents are marked on their behalf. On behalf of the defendants, D.Ws.1 to D.W.4 are examined and Exs.B.1 to B.4 documents are marked.
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8.After considering the arguments on behalf of both parties and after considering the documents available on record, the lower court has found that the plaintiffs have established their possession over the suit schedule property and it is accordingly decreed the suit of the plaintiff for permanent injunction.
9.Aggrieved by the said Judgment and decree, the defendants therein had filed the present appeal on the following grounds:
a)The lower court ought to have seen that all the respondents has joined as plaintiffs and claimed injunction for separate subdivided share but had not paid court fee separately and they have not placed any evidence in tune with their pleading. Hence, their suit for the relief in respect of schedule properties ought to have dismissed;
b) The lower court ought to have seen that he has put his entire burden on the defendants to defend and ignored tacit admissions which had totally destroyed the case of the plaintiffs;
c)The lower court only analysed the evidence under a microscope and misread the purpose and on the other hand totally ignored the salient admissions made by P.Ws.1 to 3 who have admitted the joint enjoyment of suit schedule in the past and division in North and Southern portions between the plaintiffs and defendants;
d)The lower court has framed issues prior to pronouncement of judgment should have given an opportunity to lead evidence as it would have definitely permitted the defendants / appellants to place few details for comprehensive decision;
e) The lower court has not properly understood the mechanism of assignment. Joint assignment is prohibited under Board standing order 15 and the only scope was to assign it in favour of a managerial or individual member which could be shared or spared for the family. It was shared and evidence shows joint enjoyment, then all the concepts of joint Hindu Family apply. In the case under appeal, the specific pleading of assignment for the 8 benefit of Larger joint family and mixing it with hatch potch with other lands was pleaded in the written statement and evidence was led by the appellants and P.W.1 and P.W.2 admitted the joint enjoyment. But the lower court had failed to observe the same and ought not to held the issues 1 (a) and 1 (b) against the plaintiffs;
f)The lower court should have seen that the respondents filed the suit for permanent injunction simpliciter. In fact the respondents have miserably failed to establish their right while seeking for temporary injunction in I.A.176/1999 as the same was dismissed on 21.7.1999 holding that the plaintiffs had no possession over the plaint schedule property on the date of the suit as adanagals filed at that time established the defendant’s possession. The order was confirmed in CRP 458/2003,dt.7.2.2003. As P.W.1 and P.W.2 themselves have admitted the possession of the defendants over the suit schedule property to an extent of Ac.13-00 and odd from 1400 to 1408 faslies, the lower court ought to have dismissed the suit of the plaintiff;
g)The lower court ought not have allowed Ex.A.31 to be marked as it is only an inter-departmental communication between a public officer to public officer which is not admissible in evidence. On the other hand, the plaintiffs/respondents have not made any effort with Tahsildar and prove that document under Ex.A.31. But the lower court has given unnecessary weightage to Exs.A.1 to A.31 without considering this aspect. Hence, the lower court’s judgment as far as the finding on title and possession of the respondents is absolutely improper and illegal.
i)The lower court ought to have seen that the entire Exs.A.1 to A.31 have no probative value in the light of glaring admissions made by P.W.1 and
P.W.2. In a suit for permanent injunction admissions play a relevant role and the state of things existing on land was clearly spoken to P.Ws.1 and 2. In a suit for permanent injunction relevant role and the state of things existing on land was clearly spoken to P.Ws.1 and 2, therefore the lower court should not 9 have placed its reliance on adangales and pattadar pass books filed by plaintiffs as they were cancelled by the R.D.O and ordered for enquiry;
j)The lower court ought to have seen that the adangals filed by the plaintiff after filing of a suit will have absolutely no bearing on the case. As on the day when the suit was filed when the plaintiffs have no exclusive possession of the property and the suit for bare injunction has to be dismissed.
Under such circumstances, the lower court ought to have dismissed the suit of the plaintiffs for permanent injunction;
k)P.W.1 in his cross-examination at page No.5 has categorically admitted as follows:
“It is true in adangal for the fasli 1408 the names of the
defendants are mentioned as they are enjoying the suit schedule
property to an extent of 13 acres and odd and the same was also
mentioned in fasli 1400. The faslies for 1400 and 1408 are marked as
Exs.B.1 and B.2. It is true the names of the defendants are there in
Chitta issued by M.R.O. is marked as Ex.B.3. The witness adds the
defendants names are mentioned in revenue records.”
The lower court had failed to take the admission of P.W.1 into consideration but had proceeded to decree the suit of the plaintiffs erroneously. When the plaintiffs themselves have admitted that the defendants are in possession and enjoyment of the property in northern portion, the lower court ought to have dismissed the suit. The appellants therefore pray for dismissal of the suit to set aside the decree and judgment passed by the lower court;
10.The learned counsel for the appellants besides the above mentioned grounds of appeal, had specifically argued that though the assignment was made only in favour of one individual it was for the benefit of the entire family and the various documents filed by the defendants also clearly admitted the possession of the defendants over the property, the suit for permanent injunction claiming possession over the entire suit schedule property is liable to be dismissed. He further argued that the plaintiffs have 10 relied on the pattadar pass book and title deed pass books issued by the
V.R.O. which were in fact cancelled by the R.D.O., ordering for fresh enquiry.
But the lower court has erroneously considered those documents and thereby great injustice was done to the defendants. The learned counsel for the appellants had further argued that the plaintiffs themselves have admitted possession of the defendants over the northern portion of the suit, it clearly establishes the claim of the defendants and even on that ground the suit ought to have been dismissed by the lower court. He finally argued that the judgment of the lower court is against the established principle of law relating to the suit for permanent injunction. The learned counsel for the respondents/plaintiffs had vociferously argued that the suit lands were only assigned in favour of Hanumanthappa. Once that fact is admitted by the defendants, the plaintiffs being the legal heirs of Hanumanthappa are certainly entitled to claim possession over that particular property. It is for the plaintiffs to show as to how they could also claim right over the property it was not at all assigned either in their favour or in favour of their ancestors. The counsel
for the respondents further argued that the lower court has considered all the
aspects clearly and had decreed the suit of the plaintiffs. He further argued that there are no grounds to entertain this appeal at all. During further arguments, the counsel for the appellants has brought to the notice of this court that the plaintiffs have filed an application for grant of temporary injunction in the lower court in I.A.176/1999 in which it was clearly observed that the defendants were in possession of the property in the northern portion and consequently the injunction petition was dismissed. The said order of dismissal was confirmed even in the appellate court. When that was the case, the lower court has completely negatived the contention of the defendants that they are in possession of the property though P.Ws.1and 2 have admitted that fact.
11.In view of the arguments put forth by both sides, the points that fell for determination are:
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1. Whether the respondents/plaintiffs were not in exclusive
possession and enjoyment of the plaint schedule property and they
are not entitled for permanent injunction?
2. Whether the lower court has erred in decreeing the suit of the plaintiffs?
3. To what relief?
12.For the purpose of this appeal, the parties will be referred as plaintiffs and defendants to avoid any confusion and to have clarity.
13.The plaintiffs have filed the suit for permanent injunction claiming to be in exclusive possession and enjoyment of the same. The plaintiffs also claimed that the suit land was assigned infavour of their grand father by name
Kallu Hanumanthu @ Hanumanthappa and they are only the legal heirs of the said Hanumanthappa. Therefore they are entitled to claim the relief of injunction. In the present suit, the defendants had also contended that they are also in possession of the property as they are also the legal heirs of common ancestors and actually their ancestors were in joint possession and enjoyment of the entire property, therefore, injunction cannot be granted against the defendants. However, the lower court has found that the plaintiffs had only got right in the property and they are in possession and enjoyment of the entire property, therefore the suit was decreed in favour of the plaintiffs/respondents. As this is the first appeal the entire evidence adduced by both parties can be reanalyzed to find out whether the plaintiffs can be granted such a relief or not.
In fact in this suit the relief claimed by the plaintiffs is mingled with the complex question of right and title of the parties. It is well established principles of law that any suit for permanent injunction, the title of the parties need not be gone into or to be decided. However, it is also time and again held by the lordships of Supreme Court that the title of the parties can be 12 incidentally gone into. To decide the points involved in the present suit and appeal, the various points have to be considered.
14.How the plaintiffs claimed to have got the suit property?
In para No.3 of the plaint the plaintiffs have specifically contended that the suit property belonged to their ancestors. The suit land admittedly belonged to the Government at first instance. Later the then Tahsildar
Klayandurg had assigned the suit land in an extent of Ac.27-35 cents in
Sy.No.238 of Jambugupala village in favour of Kallu Hanumanthu @ Kallu
Hanumanthappa about 70 years ago. The plaintiffs further contended that
Hanumanthu had got four sons by name Boya Pedda Polaiah, Obilesappa,
Ramappa and Chinna Polaiah. The plaintiffs 3 to5 are sons of Obilesappa.
Ramappa died issue less without any heirs. The plaintiffs 6 to 8 are the sons of Chinna Palaiah. Therefore, the plaintiffs are claiming to be the legal heirs of
Hanumanthappa and they are claiming right in the suit property by virtue of the assignment given in favour of Hanumanthappa. The defendants on the other hand in para No.3 of the written statement had clearly mentioned as follows:
"The lineal descendants of Boya Obulesappa as pleaded in para
No.4 of the plaint is true and correct."
The defendants are not in fact disputing the lineal descendants of
Hanumanthappa as claimed by the plaintiffs. The defendants are also not disputing the fact that the suit land was originally assigned in the name of
Hanumanthappa, the grandfather of the plaintiffs. Ex.A.24 is the D form patta issued in the name of Hanumanthappa. Therefore, it is clear from the claim of the plaintiff and as well as the admission of the defendant that the plaintiffs have got right in the suit property and the suit property was assigned in the name of Hanumanthappa, the grandfather of the plaintiffs.
15.Who are the defendants in regard to the suit property:
It is the specific contention of the defendants that the entire property belonged to the common ancestors and the defendants also are the members 13 of the descendants of the common ancestor and they are also having right in the property. To make the things more clear the relationship of the parties has to be clearly mentioned. The defendants have filed the genealogy tree in the lower court. In view of the claim made by the defendants, the members of the genealogy tree are to be mentioned here. One Boya Dasappa was the common ancestor of the parties to the suit. The said Dasappa has got three sons by name Obilesappa, Gadeeranna and Dasanna. The plaintiffs are representing the branch of Obilesappa. The said Obilesappa has got one son by name Kallu Hanumanthappa and the present plaintiffs are the grand children of the said Hanumanthappa.
16.Gadeeranna had got one son by name Palaiah and he had no L.Rs.
The present defendants are representing the branch of Dasanna. Dasanna has got three sons by name Eerappa, Palaiah and Gadeerappa. D.1 and D.2 and D.3 are representing the three branches of Eerappa, Palaiah and
Gadeerappa. Therefore, there is relationship between the parties to the suit.
17.It is the specific contention of the defendants that the suit land was assigned in favour of Hanumanthappa as the Manager of the joint family and therefore the benefit must be ensued to all the members of the family. It is the specific evidence of the defendants also that Obilesappa, Gadeeranna and Dasanna were the members of joint family and therefore all the children of the said three persons have been in joint possession of the property. In view of the contention put forth by the defendants it is now to be seen as to whether the said Hanumanthappa was acting as the manager of the family at any point of time. There is no doubt that Obulesappa, Gadeeranna and
Dasanna were brothers and they are sons of Boya Dasappa and up to that point it is absolutely undisputed. But here the contention of the defendant is that Hanumanthappa was the Manager of the joint family. Here it is important to note assignment was not made in favour of Obulesappa. It is was made in favour of the son of Obulesappa by name Kallu Hanumanthappa. By that time
Gadeeranna and Dasanna were alive. The said Gadeeranna and Dasanna 14 were the paternal uncles of said Hanumanthappa. As Hanumanthappa was the only son of Obulesappa, under no circumstances it can be considered that he was the manager of the joint family, particularly in view of the presence of
Gadeeranna and Dasanna being elders and paternal uncles of
Hanumanthappa. D.W.1 also in his cross-examination has categorically deposed as follows:
"The land in Sy.No.238 was the Sivajamma land. The land in
Sy.No.161 is also a Sivajamma land with an extent of Ac.18-00. It is
true that the land in S.No.238 i.e., suit land was assigned to one Kallu
Hanumanthappa S/o Boya Obulesappa who is the great grand father."
The counsel for the defendants at this juncture has brought to the notice of this court that there is evidence to show that all the parties were in joint family. The defendant had examined D.W.2 Jugulappagari Pamobanna to say that plaintiffs and defendants were in joint possession of property. However, in the cross-examination D.W.2 has deposed as follows:
"Eddula Thippaiah is the common ancestor for plaintiffs and the
defendants. Thippaiah had three sons by name Obulesappa.
Gadeeranna and Boya Dasanna. Kallu Hanumanthappa, Dasanna are
not brothers."
Even the genealogy filed by the defendants are clearly showing that
Hanumanthappa is not the brother of Gadeeranna and Boya Dasanna. The defendants are claiming to be descendants of Dasanna. Hanumathappa was only the son of Obulesappa. But he is not the brother of Gadeeranna and
Dasanna. I have already explained in the above paras also that there is no possibility for Hanumanthappa to become the Manager of the joint family.
Hanumantappa being the son of Obulesappa and as Gadeeranna and Dasanna the paternal uncles of Hanumanthappa, the contention of the plaintiffs that
Hanumanthappa was the manger of the joint family cannot be accepted at all.
There is no clear evidence also produced by the defendants also to show that
Hanumanthappa and the children of Gadeeranna and Dasanna had lived jointly or the Hanumanthappa was the manager of the joint family. The 15 circumstances are also not clearly showing that Hanumanthappa ever acted as Manager of the family. The possibility of Hanumanthappa acted as
Manager of the family is remote and in fact it is nil.
18.Whether the plaintiffs and defendants were in joint family:
The learned counsel for the defendants had argued that there is clear evidence produced by the defendants and there is an admission made by the plaintiffs also to show that the parties were in joint family. Therefore, the defendants are also to be considered as the co-owners of the property. Under such circumstances, the suit of the plaintiffs has to be dismissed. The plaintiffs have been denying that they are in joint possession of the property with the defendants. However, P.W.1 in the cross-examination has deposed as follows:
"Except the suit schedule land, other lands mortgaged jointly by
Pedda Palaiah S/o Kallu Hanumanthappa, Gadeeranna brother of
Obulesappa and Dasanna grand father of defendants in Sy.No.139
and 151."
P.w.1 in his cross-examination has also deposed as follows:
"Apart from the schedule mentioned property they are having lands in Sy.Nos.151, 139 and 161."
In page No.3 of the deposition of P.W.1 in his cross-examination has deposed as follows:
"The lands in Sy.No.151 and 139 are being enjoyed jointly by us."
By taking this particular evidence of P.W.1, the defendants are trying to contend that the entire properties were enjoyed jointly. At this juncture it is important to note that the ancestors of the plaintiffs and defendants were having lands in Sy.No.151, 139 and 161 besides the suit land in Sy.No.238.
But it is the contention of the plaintiffs that the suit land in Sy.No.238 were not at all enjoyed jointly. We come to that point later on. But it is an admitted fact that the land in Sy.No.151 and 139 were belonged to the family of the 16 ancestors of the parties and they enjoyed the property jointly. But those lands were also partitioned subsequently. Even D.W.1 in his cross- examination has categorically admitted as follows:
"It is true that Gadi Eeranna legal heirs got their properties
divided in Sy.No.139 and 151 and that they are the ancestral
properties of our ancestor alone and that after partition among the
plaintiff and defendant and L.Rs of Gadi Eeranna, Govbernment
granted pattas to Kally Hanumanthappa and Gadi Eeranna.
Here it is clear from this evidence that the land in Sy.No.139 and 151 originally belonged to the ancestors of family, but they were divided between the parties. We are actually concerned only with the suit property. The question here is whether the parties are in joint possession of suit property or not. The learned counsel for the defendants had argued that Ex.B.1 adnagal for fasli 1400, 1407 and 1408 are clearly showing the names of the defendants as possessors of the suit property and therefore the defendant's possession in the suit property is also to be accepted. There is no doubt P.W.1 also has categorically deposed in his cross-examination as follows:
"It is true in adangal for the fasli 1408 the names of the
defendants are mentioned as they are enjoying the suit schedule
property to an extent of 13 acres and odd and the same was also
mentioned in Fasli 1400."
Whether this particular admission of P.W.1 in regard to the entries in the adangals as marked as Exs.B.1 and B.2 will automatically destabilise the case of the plaintiffs and it will be establish the case of the defendants, is to be seen. It is a fact that the defendants are not disputing thae the property was assigned to Hanumathappa. It is only the contention of the defendants that suit property was enjoyed by the plaintiffs and defendants by making ridges by dividing the property into two shares. The southern portion is enjoyed by the plaintiffs and the northern portion is enjoyed by the defendants. I am not for a movement accepting the contention of the defendants to say that they are in possession of the suit property. I have got a strong reason for coming 17 to this conclusion that there are other aspects that are to be considered to see how the defendants are claiming to be in possession of the property.
Therefore at this juncture, I want to make an endeavour to see what is the effect of assignment granted to Hanumanthappa.
19.Whether the assignment infavour of Hanumanthappa is for
the benefit of all the family members i.e., even the brothers of
Obulesappa:
Admittedly, Hanumanthappa was assigned the suit land as per Ex.A.24.
That is not at all disputed by the defendants. But here the contention of the defendants is that though it was assigned in favour of Hanumanthappa, he was the manager of the joint family and all the members of family are enjoying the property jointly. I have already answered the first question of defendants that 'Hanumanthappa was granted assignment being manager of the plaintiffs '. I have already held that Hanumanthappa had never acted as manager of the familly of Obulesappa and Gadeeranna and Dasanna.
Therefore it cannot be considered that assignment was given to
Hanumanthappa for the benefit of other members of the family also i.e., to the branch of Gadeeranna and Dasanna. There is no such law that is prevailing to say that the land assigned to one person will be for the benefit of the other members of the family I.e. the brothers of their father. I have a strong reason even to come to this conclusion. D.W.1 in his evidence has categorically deposed as follows:
"The land in Sy.No.161 measuring Ac.18-00 was assigned to
Papanna S/o Gadi Eeranna in the year 1930."
Therefore, there is separate assignment that was given to Papanna which is admitted by the defendants themselves. Likewise separate assignment was given even to Kallu Hanumanthappa the grand father of the plaintiffs. Under the A.P Assigned of Prohibition of Alienations of lands Act it was never mentioned that the assignment can be considered as the allotment of land to the whole lot of people in the family. However, it is well established 18 principle of law that assigned land is heritable though not alienable. At this juncture, the learned counsel for the defendants had argued that assignment of land can be given only for an extent of Ac.5-00 more than that no assignment can be made. He further argued that even as per the Revenue
Board Standing Orders huge extent of Ac.27-38 cents cannot be assigned to one member. We are not here to going into the details of the validity of the assignment. It may be policy of the government to allow only certain extent of land while assigning the land to the parties. Therefore, granting assignment of
Ac.27-38 cents in Sy.No.238 infavour of Hanumanthappa cannot be considered as illegal at any point of time. Because even as per the evidence of defendants that an extent of Ac.0-18 cents that was assigned to Papanna in
Sy.No.161. Therefore, in the olden days i.e., prior to the independence the assignments were given to the benefit of poor people not only to an extent of
Ac.5-00 but more than that extent. Under such circumstances there cannot be any objection for the defendants to contend that more extent of land cannot be assigned to Hanumanthappa or it can be contended that an extent of
Ac.27-00 was assigned only for the benefit of whole lot of people. I have no hesitation to say that the assignment of land in favour of Hanumanthappa in respect of the suit land was given under Ex.A.24 only for the benefit of
Hanumanthappa and it is not for the benefit of the uncles of the said
Hanumanthappa also. This situation will answer all the disputes raised by the defendants in regard to the suit property.
20.Whether the plaintiffs are in actual possession of the suit property:
The plaintiffs have examined P.Ws.1 to 3 to claim their right and possession over the property. It is not only the evidence but the documents filed by the parties will establish the right and possession of the parties. At this juncture it is important to note that the plaintiffs have claimed that they were issued pattadar pass books and also titled deed pass books separately in respect of suit schedule property and they are in possession of the property.
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The various documents filed by the plaintiff have to be referred at this juncture. Exs.A.1 to A.13 are the title deeds and pattadar pass books of the plaintiffs in the suit property. The plaintiffs have also filed tax receipts under
Exs.A.14 to A.20 to show that they have been in possession and enjoyment of the property by paying tax. The plaintiffs have also filed the certified copy of the adangals under Ex.A.25 to A.29. The learned counsel for the defendants had argued that the pattadar pass book and title deeds issued to the plaintiffs were challenged by the defendants and they were already cancelled by the
R.D.O and therefore they cannot be accepted at all. The defendants have not filed the orders of the R.D.O., cancelling the pattadar pass books or the title deed pass books issued to the plaintiffs. There is no doubt true that after issuing of pattadar pass books and title deeds to the plaintiffs, the defendants have preferred an appeal before the R.D.O. The R.D.O passed an order directing the M.R.O to revise the issuance of pattadar pass books. The defendants have filed Ex.B.4 copy of the proceddings of the R.D.O., dt.23.9.1998. In that order it was clearly mentioned as follows:
"In the circumstances reported and recommended by the
Revenue Divisional Officer, Kundurpi, the Mandal Revenue Officer,
Kundurpi is hereby permitted to revise the pattadar pass books as
per title and enjoyment to the rightful owners. But before taking
action to revise the pattadar pass books the pattadar pass book
holders may be given an opportunity of being heard."
Therefore this is an order passed by the R.D.O under Ex.B.4. But under
Ex.B.4 the pattadar pass books and title deeds were not cancelled. Such proceedings are not filed here. It is brought to the notice of this court that subsequently the plaintiffs have also preferred an appeal before the Joint
Collector and obtained stay. Ex.A.21 is such an order staying the proceedings of R.D.O., dt.30.10.1998. The defendants are also not disputing this particular fact. Subsequently, there are proceedings of the Joint Collector, dt.30.11.2005 under Ex.A.30. Under Ex.A.30 the M.r.O., is directed to further conduct an 20 enquiry in regard to the issuance of patta in regard to the assignment patta granted in favour of Hanumanthappa and also to find out the rightful owners of the property to claim pattadar pass books. Under these circumstances the contention of the defendants that pattadar pass books and title deed issued by
R.D.O., are cancelled, can not be accepted at all.
21.The learned counsel for the defendants at this juncture has argued that there is an admission made by P.W.1 also in regard to the possession of the defendants over the property therefore it must be accepted that the defendants are in joint possession of the property and therefore no injunction can be granted in favour of the plaintiffs. It is very important to note that the plaintiffs have obtained pattadar pass books and title deeds books in respect of the entire suit schedule property. There is no pass book or title deed issued to the defendants at any point of time. Further the defendants have challenged the issuance of pass books in favour of the plaintiffs by filing an application before the R.D.O in the year 1998. During the pendency of this particular dispute the defendants have claimed to have got right in the property, thereby it is noted in Exs.B.1 and B.2 that the defendants were also in possession of the property. Therefore, I am not for a moment accepting to say that defendants are in possession of the property. Because of the challenged proceedings between the plaintiffs and defendants before the
Revenue Authorities, this situation has arisen where the defendants' names were mentioned in Exs.B.1 and B.2. Because the fact remains that the assignment was granted only in favour of Hanumanthappa, the children and grand children of Hanumanthappa only can claim right over the suit property.
Therefore, under no circumstances, the defendants can claim right over the property or possession over the property.
22.The learned counsel for the defendants had argued that even the name of Eerappa S/o Dasanna and Kari Palaiah and Gadeerappa were also entered in 10-1 account and therefore the defendants have got right in the property. It is not known as to how the names of the other branches of the 21 family were also mentioned along with the branch of Hanumanthappa in
Ex.B.3. But that will not establish the possession and right of the defendants over the property. Because the assignment was made only in favour of
Hanumanthappa. There is no separate assignment made in favour of Dasanna for an extent of Ac.18-00 in Sy.No.161. Therefore, the assignment made in favour of Hanumanthappa is only for the benefit of children and grand children of Hanumanthappa. The defendants under no circumstances to claim that they have got right and claim possession over this property.
23.Where do the defendants stand:
It is pertinent to note that the defendants have filed a suit previously in
O.S.143/1988 on the file of Senior Civil Judge's Court, Anantapur seeking for
partition of the suit schedule property. The defendants even in their written statement at page No.4 in para No.4 had clearly mentioned as follows:
"This defendant and other lineal descendants filed a suit in
O.S.143/88 on the file of Senior Civil Judge, Anantapur for partition
and separate possession."
However, D.W.1 in his cross-examination had tried to deny even filing of suit. But Ex.A.22 plaint copy in O.S.143/88 and decree in that suit under
Ex.A.23 are clearly bringing it to the notice of this court that previous suit filed by the defendants is in fact dismissed by the court. Even the arguments put forth by the counsel for the defendants are to the effect that though the suit for partition was dismissed for default it will not take away the right of the defendants as the property was not partitioned between the joint family members. But it is to be noted at this juncture that the defendants have not contended that the previous suit filed by the defendants for the matter is compromised out side of the court for that reason they did not prosecute the suit and therefore the suit was dismissed. But the fact remained that the suit was dismissed for default under Ex.A.23. The defendants admittedly have not filed any memo in the court to say because of the compromise effected 22 outside of court they are not pressing the suit. Another aspect that is important to be noted is that in the previous suit the defendants have sought for partition of the property in to three equal share and they claimed for 1/3rd share. But surprisingly in the present suit the defendants are claiming half share in the property and they are claiming to be in possession of half extent of the suit schedule property. Therefore there is no consistent plea taken by the defendants even in regard to the right of the plaintiffs. That suit was dismissed on 23.2.1997. Just one year prior to the filing of the present suit, the defendants have been contending that the property has to be divided into three shares. It is not known how the defendants could claim half share in half extent of land in the suit property. That itself shows that there is no force in the contention of the defendants that the defendants have got right and possession over the property. The said entries in Exs.B.1 and B.2 will not establish their possession of property. But the disputes are pending before the Revenue Authorities such situation has arisen and thereby the names of the defendants are entered in the record.
24.The evidence of P.Ws.1 to 3 coupled with the documents under
Exs.A.1 to A.3 also will clearly show that the plaintiffs are in possession and enjoyment of the suit schedule property. The plaintiffs have also established that they are the legal heirs of Hanumanthappa in whose favour the suit land was assigned.
25.The learned counsel for the defendants at this juncture has argued that the Interlocutory application filed by the plaintiffs for grant of temporary injunction was dismissed and even that dismissal was confirmed even by the
Hon'ble High Court and therefore the plaintiffs have no right to claim
injunction. This argument of the defendants is found to be farcical. Order of interim injunction is entirely different from granting injunction in the main suit.
The relief of main suit will be granted basing on the evidence adduced by the parties. The counsel for the defendants had argued that the plaintiffs have not come to the court with clean hands and they are also admitting the 23 relationship of the defendants also and therefore they are entitled not entitled for equitable relief of injunction. The counsel for the defendants had also contended that the revenue entries under Exs.B.1 to B.3 cannot be completely ignored and basing on that also their right has to be considered. In this regard, the counsel for the defendants has relied on a decision reported in (1976 ) 3 Supreme Court Cases 642. In that their lordships had observed as follows:
"The entries in the revenue records ought, generally, to be
accepted at their face value and courts should not embark upon an
appellate inquiry into their correctness."
The observations made by the lordships of Hon;ble Supreme Court cannot be made applicable to the case of the defendants in the present case because the entries in Exs.B.1 and B.2 are considered to be only stray entries and by that they cannot claim any right and therefore the defendants cannot take shelter under the above cited judgments. The counsel for the appellants has brought to my notice that the observations of their Hon'ble High Court in decision reported in 2011 (2) ALD 350. In that their lordships had observed as follows:
"In a suit for permanent injunction what is material is only aspect of possession."
There is no doubt, in the present suit also it is only to be seen who is in possession of property by the date of filing of the suit. The possession maintained by the plaintiffs is not disputed by the defendants. But it is only contended by the defendants that they are also in possession of northern portion of the plaint schedule property. The counsel for the defendants had relied on a decision reported in 2008 (1) ALD 748. In which their lordships had observed as follows:
"Suit for injunction simpliciter complicated questions of title cannot be gone into." 24
I have already observed in the present appeal the title of the parties was not decided in the suit. The plaintiffs are considered as legal heirs of
Hanumanthappa in whose favour the assignment was made. Therefore the title of the parties was not decided in the present suit. But subsequently entries in regard to the possession of the properties were clearly noted.
26.The plaintiffs have no doubt contended in the plaint that the defendants are strangers. Only on that aspect the interim injunction petition was dismissed for the reason that the plaintiffs have suppressed the factum of relationship with the defendants. But here it is pertinent to note that the defendants were mentioned as strangers as the defendants have no right in the property and therefore they are strangers to the property. Therefore, for that reason it cannot be said that the plaintiffs have suppressed the real facts to claim the relief. All the documents filed by the plaintiffs are clearly establishing the possession of the plaintiffs over the property. Therefore, I hold that the respondents/plaintiffs are in exclusive possession and enjoyment of the property and they are entitled for injunction. Accordingly, the point
No.2 is answered infavour of the respondents/plaintiffs and against the appellants/defendants.
27.The learned counsel for the defendants had argued that the lower court gone to the extent of giving a finding in regard to the title of the parties also, therefore, the lower court has erred in giving judgment in favour of the plaintiffs. It is to be noted at this juncture that the lower court has made a strenuous effort in finding a clear solution to the various points raised by the parties in the present suit. The points involved in the suit were very minutely discussed by the lower court. However title of the parties had not gone into incidentally by the lower court. Therefore, I hold that the lower court has not erred in decreeing the suit of the parties. Accordingly, the point is answered.
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28.Point No.3::-
In the result, the appeal is dismissed with costs by confirming the judgment and decree passed by the Junior Civil Judge, Kalyandurg in
O.S.41/99, dt.10.6.2008.
Dictated to the Personal Assistant, transcribed by her, corrected and
pronounced by me in open court, this the 16th day of March, 2012.
IV Addl. District Judge, Anantapur.
Appendix of Evidence
-Nil-
IV ADJ.