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A.S.NO.259/2012
IV ADJ,VSP.
IN THE COURT OF THE IV ADDITIONAL DISTRICT JUDGE:
VISAKHAPATNAM.
Present: K.Venkata Ramana Reddy,
IV Additional District Judge, Visakhapatnam.
Thursday, the 28th day of June 2018
A.S.No.259/2012
Between :
1.Sri Naidu Ramarao, S/o.late Suryanarayana, Hindu, aged 39 years, residilng at D.No.36-92-299, Jai Bharathi Nagar, Kancharapalem, Visakhapatnam.
2.Smt.Naidu Venkata Lakshmi, W/o.Sri Ramarao, Hindu, aged 31 years, residing at D.No.36-92-299, Jai Bharathi Nagar, Kancharapalem, Visakhapatnam.
… Appellants
And
1.Sri Boda Pakir, S/o.late Adinarayana, Hindu, aged 66 years, residing at D.No.31-30-2, Dabagardens, Visakhapatnam-20 (died) (Legal heirs of the 1st respondent brought on record)
2.Smt.Boda Indira, W/o.Pakir, Hindu, aged 51 years, residing at D.No.31-30-2, Dabagardens, Visakhapatnam-20 … Respondents
MEMORANDUM OF APPEAL FILED UNDER ORDER 41 READ WITH SECTION 96 OF CPC., AGAINST THE DECREE AND ORDER DT.23.07.2012 PASSED IN
O.S.NO.2059/2007 ON THE FILE OF PRINCIPAL JUNIOR CIVIL JUDGE’S COURT,
VISAKHAPATNAM.
Between :
Between :
1.Sri Naidu Ramarao, S/o.late Suryanarayana, Hindu, aged 39 years, residilng at D.No.36-92-299, Jai Bharathi Nagar, Kancharapalem, Visakhapatnam.
2.Smt.Naidu Venkata Lakshmi, W/o.Sri Ramarao, Hindu, aged 31 years, residing at D.No.36-92-299, Jai Bharathi Nagar, Kancharapalem, Visakhapatnam.
… Plaintiffs 2
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And
1.Sri Boda Pakir, S/o.late Adinarayana, Hindu, aged 66 years, residing at D.No.31-30-2, Dabagardens, Visakhapatnam-20 (died) (Legal heirs of the 1st respondent brought on record)
2.Smt.Boda Indira, W/o.Pakir, Hindu, aged 51 years, residing at D.No.31-30-2, Dabagardens, Visakhapatnam-20 … Defendants
This appeal coming on 6.6.2018 for final hearing before me in the presence of Sri T.V.S.K.Kanaka Raju Advocates for the Appellants/defendants and of Sri K.Jagadeeswara Rao, Advocate for Respondents and the same having stood over for consideration, this court delivered the following:-
J U D G M E N T
1.This appeal suit has been filed on behalf of Appellants /defendants against decree and Judgment dt.23.7.2004 in O.S.No.2059/2007 on the file of Principal Junior Civil Judge, Visakhapatnam with a prayer to set aside the decree and Judgment of trial court and to dismiss the said suit with costs throughout.
2.Respondents/Plaintiffs filed the said suit i.e., O.S.No.2059/2007 to pass decree and judgment in favour of plaintiffs declaring that adoption deed dt.11.12.2006 bearing Doc.No.457/2006 is null and void, consequently to grant of permanent injunction restraining the defendants from interfering with plaintiffs’ peaceful possession and enjoyment of the suit schedule property.
3.Appellants and Respondents in this appeal suit are defendants and plaintiffs respectively before trial court. To avoid confusion and for sake of better clarity parties in this appeal are herein after referred to as they were arrayed before trial court.
4.The case of plaintiffs as appearing in the plaint in brief is ;
i)1st Plaintiff got married 2nd plaintiff after demise of his 1st wife. 1St
Plaintiff begotten daughter i.e., Nagamani through his 1st wife. Plaintiffs 3
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who are physically handicapped persons had decided to adopt a son to fulfill their wish i.e., performing their karmakanda on their demise according to their customs and religion. Defendants who were family friends of plaintiffs accepted the proposal of plaintiffs and decided to give their elder son namely Naidu Kesava Kumar aged 10 years in adoption to plaintiffs.
Plaintiffs adopted said Kesava kumar as their son through a registered deed on 11.12.2006. On the date of adoption, defendants took a week days time to send their child to plaintiffs. Plaintiffs agreed for that and waited for more than 2 weeks but the defendants did not send the child to the plaintiffs house, further started harassing the plaintiffs and impose a condition to transfer the suit schedule property by way of gift deed in the name of his child with immediate effect in order to send the child to plaintiffs house, further defendants demanded from plaintiffs Rs.5,00,000/-. On that issue, defendants man handled the plaintiffs and also warned the plaintiffs with dire consequences if the property was not transferred in the name of their child. Then the plaintiffs gave police report to the station House Officer, II
Town (L&O) p.s. Despite direction of police to hand over adopted child, defendants did not send adopted child to the plaintiffs.
ii)Defendants filed OP.654/2007 on the file of District Family Judge under sec.20 of Hindu Adoption Maintenance Act claiming maintenance to the child and also filed an application in I.A.No.480/2007 seeking attachment of plaint schedule property before Judgment.
iii) Defendants were planning to grab the suit schedule property belong to the plaintiffs by giving their son in adoption and consequently not sending the adopted son to the plaintiff's house and imposing condition to transfer the schedule property in the name of adopted son. The defendants are trying to enter into suit schedule property by force. Therefore, the plaintiffs are constrained to file the suit.
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5.Defendants 1 and 2 made their appearance through their counsel and got filed written statement of D1 and memo on behalf of D2 adopting written statement of D1.
The plea of defendants as appearing in the written statement of D1 in brief is ;
Plaintiffs approached the defendants and requested to give their son for adoption. After execution of adoption deed dt.11.12.2006 minor child was taken by the plaintiffs to their custody and they never allowed the defendants even to see their son. Plaintiffs never look after the minor child properly and they used to beat him indiscriminately and finally thrown out the minor child from their house. Having no other go, minor child came to the house of defendants. As per the adoption deed plaintiffs had to maintain the minor child. To avoid maintenance to minor child, plaintiffs filed the suit with false and frivolous allegations. Plaintiffs have no cause of action to file the suit . The cause of action mentioned is totally false and the same is invented only for the purpose of filing the suit. Thus prayed to dismiss the suit with exemplary costs.
4.The trial court settled the following issues for trial considering the pleadings of both parties.
1.Whether the plaintiff is entitled for relief of declaration of the adoption deed dt.11.12.2006 bearing document No.457/2006 as null and void as prayed for?
2.Whether the plaintiff is entitled for consequential relief of permanent injunction against the defendant as prayed for?
3.To what relief?
5.To substantiate the case of plaintiffs they got their respective affidavits filed apart from affidavit of their witness J.Ramireddy in lieu of chief examination and tendered their witness including themself for cross 5
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examination apart from examining D.V.Lakshmi Record Assistant in the office of PEN school as 5th witness and also got marked 7 documents as Exs.A1 to
A7 i.e., Ex.A1 is the registered adoption deed, Ex.A2 is the xerox copy of police report, Ex.A3 is the receipt issued by police, Ex.A4 is the served copy of notice by defendants, Ex.A5 is the office copy of reply notice, Ex.A6 is the served copy of petition in OP 654/2000 and Ex.A7 is the served copy of interim orders in I.A.No.480/2007 and two other documents as Exs.X1 and
X2 i.e., Ex.X1 is the summons of witness and Ex.X2 is the authorisation given by PEN School, Dabagardens, Visakhapatnam.
ii)To substantiate the case of defendants, they got filed affidavit of 2nd defendant apart from the affidavits of their witnesses B.Raju, S.Venkata
Ramana and B.Satya Vasu in lieu of chief examination and tendered them for cross examination, further got marked 3 documents as Exs.B1 to B3. i.e.,
Ex.B1 is the certified copy of order in OP No.654/2007, Ex.B2 is the certificate issued by PEN School and Ex.B3 is the Encumberance certificate.
6.Having considered both oral and documentary evidence on record, after hearing submission of the respective counsel appearing for plaintiff and defendants, the learned Principal Junior Civil Judge, Visakhapatnam partly decreed the suit by declaring adoption deed dt.11.12.2006 bearing doc.NO.457/2006 as null and void and dismissed the suit in respect of rest of the claim of plaintiff.
7,Basing aggrieved by the said decree and Judgment of trial court , the defendants preferred this appeal challenging the said decree and Judgment on the following grounds.
1.The Judgment is vitiated by errors appeared on record, misapplication of law, misconception of evidence failure to draw proper legal inferences on proved facts and failure to decide essential points in contraversy ;
2.The Learned Judge apparently did not find any infirmity in the method 6
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of manner of adoption but held that custody of the child is not given to adoptive parents which is incorrect, observation is not based on the evidence;
3.The Learned Judge seems to have misguided himself while interpreting
Section 11(6) of Hindu Adoption and Maintenance Act 1956 .
4.The Learned Judge failed to consider oral and documentary evidence in the perspective and ought to have dismissed the suit holding that adoption is valid and it was acted upon.
8)1st Respondent died and 2nd respondent is recognized as Legal representative of 1st respondent. On receipt of notice in this appeal 2nd respondent made her appearance through a counsel.
9)Heard respective counsel appearing for Appellants/defendants and 2nd respondent/2nd defendant.
i)The learned counsel appearing for appellants submitted that once adoption and execution of adoption deed in respect thereof is admitted it is for the plaintiffs to establish that adoption was not acted upon. He further submitted that absolutely there is no evidence to show that adoption was not acted upon but the trial court erroneously passed decree declaring adoption deed dt.11.12.2006 bearing vide doc.no.457/2006 as null and void and prayed to allow the appeal by setting aside the decree and judgment of trial court and to dismiss the suit. He referred the following decision in support of his above said arguments PATHIVADA RAMASWAMY Vs.
KORADA SURYA PRADASA RAO (AIR 1993 AP 336).
ii)The learned counsel appearing for 2nd respondent/2nd plaintiff submitted arguments in support of the finding recorded by the trial court and prayed to dismiss the appeal.
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10.Now the points for determination are:
1.Whether the adoption deed dt.11.2.2006 bearing doc.no.457/06 executed by plaintiffs and defendants is required to be declared as null and void as pleaded by the plaintiffs?
2.Whether the decree and Judgment of trial court in declaring said adoption deed as null and void is required to be interfered?
3.To what relief?
11.POINT No.1 :
The undisputed relevant facts are:
i)Defendants are natural parents and plaintiffs are adoptive parents of a boy by name Kesava Kumar. 1st plaintiff is the husband of 2nd plaintiff.
Both plaintiffs and defendants executed Ex.A1 Registered adoption deed in respect of said Kesava Kumar. The said Kesava Kumar represented by his natural mother filed OP 654/2007 in the court of Judge, Additional Family
Court, Visakhapatnam against plaintiffs herein claiming as their adopted son for grant of maintenance and said OP was decreed after full trial granting maintenance @ Rs.2000/- p.m., for a period of 3 years prior to the filing of the petition.
ii)As seen from the averments of the plaint and evidence brought on record, it is ther version of plaintiffs that though the adoption deed was executed but adopted child Kesava Kumar was taken away by the natural parents i.e., defendants herein after registration of said adoption deed, later said boy was not handed over to plaintiffs, as such the said adoption deed is null and void.
iii)As status, right and interest of said adoption son Kesava Kumar is involved in this case and his right will be effected in case suit is decreed, he is a proper and necessary party to the suit. Neither plaintiff had chosen to 8
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implead adopted son Kesava Kumar as a party to the suit nor defendants had taken plea in their written statement in respect thereof. Unfortunately, the trial court also had not taken any objection in respect thereof at the time of institution of the suit.
iv) PW.1 B.Indira, PW.2 B.Pakeer stated in their respective evidence in chief in support of their above said version that from the date of adoption, defendants took a weeks day time to send the child to them because of defendants love and affection towards the child, for which they agreed and waited for more than 2 weeks but the defendants never send the child to them and moreover started harassing them imposing a condition to alienate the suit schedule property by way of gift deed in the name of child Kesava
Kumar with immediate effect to send the child to their house and further demanded Rs.5,00,000/-.
v)PW.4 J.Ramireddy who claims to be the 3rd party in this suit stated that immediately after adoption defendants took adopted child Kesava
Kumar to their house for a period of two weeks informing the plaintiffs that they give adopted child to their custody after two weeks and plaintiffs agreed for it, later that the defendants instead of giving the child to the custody of plaintiffs demanded them to give Rs.5,00,000/- and also demanded to transfer the total property in the name of minor child by way of gift deed with immediate effect and minor child was not in the custody of plaintiffs even for a single day either before registered gift deed or after the said document.
vi)Contra to the above said version of PW.1, PW.2 and PW.4, 2nd defendant N.Venkata Lakshmi as D.W.1 stated in her evidence in chief in support of the version of defendants appearing in the written statement that adoption of minor child and execution of adoption deed, plaintiffs had taken their son to their custody and ever since plaintiffs never allowed them to see 9
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their son, later they knew that plaintiffs never see the welfare of their child and harassed him indiscriminately and finally necked him out of their house, thereupon the boy came to their house as there was no other go. Father of 2nd defendant Boggu Raju as D.W.2 and his younger brother Boggu Satya
Vasu as D.W.4 and another witness S.Venkata Ramana stated in their respective chief evidence that after execution of adoption deed dt.11.12.2006 plaintiffs look after the minor child in a well manner for 3 months as a son and his new name i.e., Koda Kesava Kumar was entered in all the records as son of the plaintiffs, later plaintiffs started harassing the minor child physically and mentally and threatened him to leave the house and same was informed by minor child to his natural parents immediately the complaint was given to elders and SHO., II town police station,
Visakhapatnam against the plaintiffs and police called the plaintiffs and warned them to look after the minor child in a well manner but he did not do so and the minor child went to the house of her natural parents as there was no other go.
vii)But either parties did not choose to examine the adopted son Kesava
Kumar as a witness in this case. PW.5 P.V.Lakshmi, Record Assistant in the office of PEN School stated in her evidence that plaintiffs never approached them at any point of time to change the surname and father’s name of
Kesava Kumar in their school records and as per register of admissions for the year 2007 and 2008 the surname of their student Kesava Kumar
Admission No.18 was changed as Koda in the year 2011. PW.5 P.V.Lakshmi also stated in her evidence that from the date of joining of said Kesava
Kumar in their school they made correspondence with only defendants and plaintiffs never came to their school to enquire or to know the said student
Kesava Kumar.
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viii)As mentioned above, admittedly, within a few months after date of execution of Ex.A1 adoption deed said boy Kesava Kumar represented by his natural mother filed OP.654/2007 against plaintiffs in this suit for maintenance and Ex.B1 order was passed in that OP by the Judge, Family
Court, Visakhapatnam granting maintenance @ Rs.2000/- p.m., for 3 years prior to filing of said petition.
ix)In the above said decision referred on behalf of Appellants/plaintiffs i.e., PATHIVADA RAMASWAMy Vs. KORADA SURYA PRADASA RAO AIR 1993 AP 336.
Wherein the Hon'bel High Court of A.P. observed as :
“Whenever any document registered under any law for the
time being in force is produced before any court purporting to
record an adoption made and is signed by the person giving
and the person taking the child in adoption, the Court shall
presume that the adoption has been made in compliance with
the provisions of this Act unless and until it is disproved”
x)In view of the observation of the Hon'ble High Court, in the above said referred decision plaintiffs who admitted execution of Ex.A1 adoption deed is under obligation to rebut the presumption regarding giving and taking of child in adoption, available to the defendants. To decide the dispute between plaintiff and defendant with respect to custody of adopted child soon after execution of Ex.A1 adoption deed, the evidence of adopted child plays an important role. But as mentioned above, either parties did not choose to examine the said child as a witness before the trial court. Validity or otherwise of said adoption deed cannot be decided behind the back of child Kesava Kumar adopted under said document. Therefore, it is just and necessary to set aside decree and judgment of trial court dt.23.7.2012 in
O.S.No.2059/2007 on the file of Principal Junior Civil Judge, Visakhapatnam
and to remit the same to the trial court directing the plaintiffs to implead that child Kesava Kumar as a party to the suit, further directing the trial 11
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court to give an opportunity to both parties after adding the said Kesava
Kumar as a party to the suit to adduce further evidence and to dispose of the matter afresh in accordance with law. Accordingly this point is answered.
12. POINT NO.2:As observed in point no.1 the decree and judgment of trial court shall be set aside dt.23.7.2012 in O.S.No.2059/2007 on the file of Principal Junior Civil Judge, Visakhapatnam and remitted the same to the trial court directing the plaintiffs to implead the child Kesava Kumar as a party to the suit, further directing the trial court to give an opportunity to both parties after adding the said Kesava Kumar as a party to the suit to adduce further evidence and to dispose of the matter afresh in accordance with law.
13.POINT NO.3:In view of finding on Point Nos.1 and 2 as mentioned above, the decree and Judgment of trial court shall be set aside dt.23.7.2012 in O.S.No.2059/2007 on the file of Principal Junior Civil Judge,
Visakhapatnam and remitted the same to the trial court directing the plaintiffs to implead the child Kesava Kumar as a party to the suit, further directing the trial court to give an opportunity to both parties after adding the said Kesava Kumar as a party to the suit to adduce further evidence and to dispose of the matter afresh in accordance with law. According this appeal suit shall be disposed of.
In the result, the decree and Judgment of trial court is set aside dt.23.7.2012 in O.S.No.2059/2007 on the file of Principal Junior Civil Judge,
Visakhapatnam and remitted the same to the trial court directing the plaintiffs to implead the child Kesava Kumar as a party to the suit, further directing the trial court to give an opportunity to both parties after adding the said Kesava Kumar as a party to the suit to adduce further evidence and to dispose of the matter afresh in accordance with law.
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Considering the facts and circumstances of the case, there is no order as to costs.
As the suit relates to the year 2007 the trial court is directed to dispose of the matter within 3 months from the date of receipt of copy of judgment in this appeal suit.
Both parties are directed to appear before the trial court on 9.7.2018 at 10.30 A.M., and to co-operate with the trial court to dispose of the case as expeditiously as possible. Office is directed to return the trial court record copy of Judgment in this appeal forthwith. According this appeal suit is disposed of.
Typed to my dictation by the Stenographer Grade I corrected and
pronounced by me in the open court on this the 28th day of June 2018.
IV ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
APPENDIX OF EVIDENCE
NIL
IV ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
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Originally the suit has been filed against 1st defendant with a prayer to pass decree by way of plaintiff and against defendant for specific performance of agreement of sale dt.11.5.2005 directing the defendants to register plaint schedule property in favour of plaintiff by executing registered sale deed and if for any reason relief of specific performance of contract cannot be granted to pass decree in favour of plaintiff for a sum of Rs.2,00,000/- with subsequent interest from the date of execution of agreement of sale dt.11.5.2005 with interest @ 24% p.a.,
2.The case of the plaintiff as appearing in the plaint in brief is :
i)Defendant who is absolute owner of plaint property at the request of plaintiff agreed to sell the plaint schedule property for consideration of 14
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Rs.12,50,000/- and entered into agreement of sale and both of them on 11.5.2005 by receiving Rs.2,00,000/- as advance by the defendant from the plaintiff. Defendant further agreed to receive balance sale consideration of
Rs.10,50,000/- at the time of registration and granted 3 months time to get the sale property registered in favour of plaintiff ii)Later when plaintiff approached the defendant with balance sale consideration of Rs.10,50,000/- on several occasions and demanded to execute registered sale deed in his favour but defendant postponed execution of registered sale deed in favour of plaintiff on one pretext or the other. Plaintiff is ready and wiling to perform his part of contract but defendant was postponing the same on one pretext or the other .
iii)Later plaintiff came to know that defendant offering to sell the plaint schedule property to third parties at higher rate by concealing the suit agreement of sale and questioned the defendant in respect thereto , thereupon defendant expressed his innocence and acknowledged once again signifying his willingness to execute registered sale deed in favour of plaintiff. Later defendant did not come forward to execute sale deed despite plaintiff's readiness to pay the balance sale consideration, plaintiff was constrained to issue legal notice to defendant on 23.2.2006 demanding the defendant to execute registered sale deed within a week from the date of receipt of notice and said notice was returned unserved on 27.6.2006 with an endorsement “Addressee Left”. Hence plaintiff was constrained to file the suit.
3.Later as per order dt.11.9.2009 in I.A.No.558/2009, 2nd defendant is added and further amended the plaint with a plea that after filing the suit, 1st defendant filed written statement stating that he executed registered gift settlement deed dt.7.1.2006 in favour of 2nd defendant who is his son and said gift settlement deed in sham and nominal one and same was brought 15
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into existence to repeat the rights of plaintiff under suit agreement of sale , therefore, D2 is also liable to execute sale deed in favour of plaintiff in respect of suit schedule property
I) Plaintiffs further amended the plaint as per order dt.30.8.2010 in
I.A.No.582/2010 to the effect that part of 1st floor namely rear side of flat of plinth area of 750 sq.ft together with an extent of 28 sq.yds being undivided share of plaint schedule site in 181-1/3 sq. yds was transferred by 1st defendant in favour of one Nakkanti Satyamurthy under registered agreement for sale coupled with power of attorney dt 7.1.2006 for
Rs.7,50,000/- and after exchange of legal notice between plaintiff and said
Satyamurthy and to avoid litigation, plaintiff's son Kalisetti Srinivasa Rao purchased the same under registered sale deed dt.2.3.2006 for
Rs.8,15,000/-, therefore, only the remaining flat bearing No.FF-1 on the western side facing the road having plinth area of 800 sq.ft on an extent of 27.5 sq.yds of undivided proportionate out of 181-1/3rd sq.yds in the land which is nominally transferred by D1 in favour of D2 under Registered Gift
Settlement deed, 3.12.2005 remains enforcing the sale agreement and plaintiff was compelled to incur personal expenditure of Rs.8,15,000/- is entitled to claim the same by way of compensation.
4.The plea of 1st defendant as appearing in his written statement in brief is :
i)Defendant entered into two agreements one on 11.5.2005 with plaintiff for entire 1st floor of the suit schedule property, under said agreement and subsequently with Plaintiff's son K.L.Srinivasa Rao on 6.8.2005 for entire 2nd floor. Defendant requested the plaintiff and his son on several occasions for completion of construction as he was dire need of 16
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money due to his superannuation and medical necessities but plaintiff and his son did not bother. Subsequently when defendant told the plaintiff and his son that he would cancel the agreement and forfeited advance amount paid by them as damages for their failure and defendant bequeathed part of the unit in defendant’s sons name through a registered gift deed, plaintiff and his son came forward and paid the defendant balance sale consideration and requested the defendant to register the requisite deeds as directed by them. Accordingly on 7.1.2006 as per the directions of the plaintiff and his son, defendant executed an agreement to sell with power of attorney and the properties covered under two sale agreements excluding the portion that defendant already gifted to his son and registered as document
No.32/2006 for unit number SF-2, 33/06 for unit number SF-1 in favour of
Marchi Ramunaidu and Document No.34/06 for FF-2 in favour of Nekkanti
Satyamurthy. After completion of said transactions defendant sought for return of the agreements dt.11.5.2005 and 6.8.2005 but defendant and his son told that they forgotten to appearing the same and assured the defendant that they would return the same. After repeated requests of defendant, plaintiff returned the agreements dt.11.5.2005 and 6.8.2005, later surprisingly defendant received notices in this case and also from I
Additional Senior Civil Judge, Visakhapatnam in O.S.No.1009/06 filed by
K.L.SrinivasaRao. Upon a clear perusal, plaintiff returned him the colour xerox of agreements dt.11.5.2005 and 6.8.2005 which he did not identify due to short of sight due to his superannuation . Plaintiff got registered the same properties from the respective vendees in the names of plaintiffs, his wife and son as document nos.684/06, 685/06 and 444/06 suppressing the material facts plaintiff approached with unclean hands, as such he is not entitled the reliefs. Thus prayed to dismiss the suit with costs.
5.The plea of 2nd defendant as appearing in the written statement in 17
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brief is:
Subsequent to receipt of notice in I.A., on enquiry his father 1st defendant informed that he entered into an agreement and subsequently the same was cancelled and plaintiff returned the sale agreement to him and plaintiff making some false claim to gain unlawful. 1St defendant was absolute owner of suit property executed a registered gift settlement deed in favour of 2nd defendant on 3.12.2005 and 2nd defendant accepted the gift and he has been in peaceful enjoyment of suit schedule property since the date of decree. By the date of gift deed, there is no subsisting contract of plaintiff and 1st defendant, plaintiff and his family members, the execution of said gift deed from the date of his execution. Plaintiff and his family members recognized absolute ownership of 2nd defendant over plaint schedule property. 2Nd defendant refused request of plaintiff and his family members to sell the said flat. 2Nd Defendant informed to plaintiff and other residents of the building while converting bed rooms of the plaint schedule flat into shop rooms with a request to bear the sound and air pollution while said work was carried on. Plaintiff did not raise any objection and allowed the 2nd defendant to proceed with the work. Defendant applied the
Municipal Corporation for assessment of the tax on commercial basis and also applied to E.P.D.L. authorities for conversion of bill charges on commercial basis. While the said work was on the progress, plainitff filed two applications one under Order 1 Rule 10 to implead the 2nd defendant and another under Order 39 R.1 and 2 CPC., restraining the defendant from making alterations from schedule property but the court refused to grant exparte injunction Then his son and wife of plaintiff suppressing the facts and filed O.S.No.903/09 on the file of II Addl. Junior Civil Judge,
Visakhapatnam to grab the property at their price as the plaint schedule property was only a skeleton at the time of gift, 2nd defendant invested huge 18
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amounts on the property for utilisation. Suit is barred by limitation against 2nd defendant, thus prayed to dismiss the suit with exemplary costs.
iii.After amendment of the plaint, as mentioned above, Additional written statements are filed on behalf of defendants 1 and 2.
The plea of defendants 1 and 2 as appearing in their Additional written statement in brief is :
1st defendant never committed any breach of sale agreement entered into plaintiff. Plaintiff was not having any money at the time of sale agreement, as such he paid advance amount of Rs.2,00,000/- and obtained sale agreement instead of obtaining sale deed in his favour. Plaintiff was aware that 1st defendant was in need of money as such selling away the property, plaintiff neither approached nor paid balance sale consideration within the stipulated period i.e, within 3 months from the date of agreement.
There is no basis alleged damaged claim of Rs.8,15,000/- from the 1st defendant. Plaintiff has no such money to incur otherwise he would have paid balance sale consideration to 1st defendant and would have got the sale deed registered in his name as per the terms of sale agreement.
Except FF-2 belonged to 1st defendant and PF-3 belonging to M.Sambasiva
Rao, the remaining flats in the building are in the hands of family members of plaintiff. Therefore, the plaintiff with an intention to grab the property belonging to D2 had not returned sale agreement after sale of property FF-1,
SF-1 and SF-2 as there is no direction and returned the colour xerox copy of sale deed and 1st defendant believed it as original one and kept in the file , later he came to know the truth as mentioned in the written statement.
5.The plea of plaintiff as appearing in the rejoinder in brief is:
The delay in completing the transaction was due to paper publication made by State Bank of India, Simhachalam branch to the effect that entire plaint schedule property was mortgaged to it, later it transpired the said 19
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mortgage is effected by inpersuation . The allegation of settlement between plaintiff and 1st defendant pleaded in the written statement is totally false and no such settlement was ever reached.
7.Consideringthe above said pleadings and additional pleadings of both the parties, the following issues were settled for trial.
1.Issues dt.12.7.2007 1 to 6
Additional issues dt,.17.11.2009
The following Additional issue is framed.
Whether the gift deed executed by D1 in favour of D2 is true valid and binding on the plaintiff?
The following Additional issue is framed on .28.11.2017.
1 and 2
6.To substantiate the case of plaintiff K.Seetharamulu got his affidavit filed apart from the affidavit of witnesses namely K.L.Srinivasa Rao ,
N.Satyamurthy in lieu of chief examination and tendered witnesses including himself fro cross examination further got marked 10 documents as Exs.A1 to
A10.
7.To substantiate the case of defendants they got filed their respective affidavits in lieu of chief examination and tendered them for cross examination apart from exhibiting two documents as Exs.B1 and B2.
8.Heard respective counsel appearing for plaintiff and defendants 1 and 2.
i). The learned counsel appearing for plaintiff ii) 20
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The Learned counsel appearing for D1,D2 and also D3 submitted that the father of D3 and his brother-in-law Asi Appanna purchased property jointly 22
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under Ex.B1 sale deed later partition the same equally and in that partition the father of D3 got half of the extent in S.No.209/2B and from out of said property fell to the share of father of D3, D3 and his brother Gujju
Pentareddy and their father jointly sold the plaint schedule extent together with thatched houses therein to D1 and D2 under Ex.B2 sale deed dt.23.9.1981 and ever since D1 and D2 have been in continuous possession and enjoyment of the said property i.e., reconstructed house consisting with two rooms with zinc sheet roof and paying property tax to the Municipal corporation continuously without any interruption to the knowledge of one and all including the plaintiffs and that the plaintiffs have no right, title over the said property. Thus prayed to dismiss the suit O.S.No.166/2006 and to decree the suit in O.S.No.24/2009
15.ISSUE Nos. 1 and 2 in O.S.No.166/2006 :
It is not in dispute defendants 1 and 2 are in possession and enjoyment of the property now in dispute.
I)The plaint schedule in O.S.No.166/20006 reads as :
The vacant land measuring in an extent of 266.2/3 cents including structures in S.No.209/2B1 (asbestos cement sheets house bearing Door
NO.58-32-9) Asivanipalem, Marripalem village, Visakhapatnam bounded by
East:Survey No.209/B2 property
South:Survey No.209/2B1 Existing road,
West:Survey No.209/2B1, remaining plaintiff’s property
North:Survey No.209/2B1 remaining plaintiff’s property ii)The plaint schedule in O.S.No.24/2009 (O.S.NO.1496/2005) read as:
Visakhapatnam Municipal Corporation Limits, Asivanipalem,
Kancharapalem post, Survey No.209/2B, Zyraity: Patta No.25, Asbestos cement sheet shed along with vacant land consisting bearing D.No.58-32-9, 23
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bearing Municipal Property Tax Assessment No.72500/725, having Electrical
Service Connection No.1460/227919 in 43rd ward, admeasuiring 266 2/3 sq.yds belonging to the plaintiffs bounded by:
East:Property of Korni Rajeswari & others
South:15 ft. cement concrete road
West:Property of vendors the plaintiffs i.e., Gujju Apparao and others
North:Property of vendors of plaintiffs i.e., Gujju Apparao& others
Measurements:East to West 40 ft
North to South60 ft.
ii)As plaintiffs filed suit for declaration of their right, title to the property in dispute, they are under an obligation to establish their title to the said property in order to get a decree in this suit.
iii)PW.1 Asi Venkata Reddy is the GPA holder of plaintiffs, PW.2 Adduri
Ramesh Reddy is the grand son of 1st plaintiff, PW.3 K.Srinivasa Rao is Senior
Assistant in the office of Spl.Competent Authority, Urban Land Ceiling ,
Visakhapatnam , PW.4 E.Murali is the Tashildar, Visakhapatnam urban, PW.5
Metta Venkanna is the Mandal Surveyor in the office of Tashildar, Pendurthi,
Visakhapatnam District, PW.6 P.Rajendra Prasad is the Advocate
Commissioner who inspected suit schedule property and got measured the same with the assistance of PW.5 Surveyor and filed his report along with plan.
iv)PW.1 Asi Venkata Reddy and PW.2 Adduri Ramesh Reddy have stated in their respective chief affidavit filed in lieu of chief examination in support of the version of plaintiffs appearing in the plaint in O.S.No.166/2006.
v)Similarly, 1st defendant K.David as D.W.1, 3rd defendant G.Apparao as
D.W.4 stated in their respective affidavit filed in lieu of chief examination in 24
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support of their respective versions appearing in the written statements.
vi)D.W.2 Korni Kalyanam who claims to be owner and enjoymentdar of property situate adjacent to plaint schedule property on Eastern side and
DW.3 D.Mallesh who claims to be in possession of asbestos sheet roofed shed in the plaint schedule property as tenant of D1 have stated in their respective evidence about right, title and possession of defendants 1 and 2 over the plaint schedule property.
vii)As per the version of plaintiffs that Asi Appalaswamy alias Appanna is the father of plaintiffs 1 to 6 and he was the absolute owner of Ac.0.62 cents of vacant land in S.No.209/2B of Marripalem village and that urban Land
Ceiling Authority , Visakhapatnam had acquired Ac.0.34 cents out of said
Ac.0.62 cents in S.No.209/2B as surplus land as per CC.No.6089/76B2 dt.11.7.1980 and said Urban Land Ceiling Authority, Visakhapatnam sub divided S.No.209/2B covering the said acquired surplus land by
S.No.209/2B2 and the remaining extent i.e., Ac.0.28 cents as retained land with S.No.209/2B1. As such, it is the case of plaintiffs that Ac.0.34cents covered by S.NO.209/2B2 is a Government land as excess land and the remaining Ac.0.28 cents covered by S.No.209/2B1 is the land exclusively belonged to the plaintiffs being the LRs of said Late Asi Appanna. There is no much dispute that D1 and D2 claiming right, title and possession over the property in dispute under Ex.B2 sale deed executed by D3 and his brother
Gujju Pentayya Reddy and their father Gujju Ramulu. As seen from the evidence on record, it is also not in dispute that said Gujju Ramulu is the brother-in-law of said Late Asi Appanna. As mentioned above, 3rd defendant as D.W.4 stated in his chief affidavit that said Gujju Ramulu and Asi Appanna purchased Ac.0.80 cents as item no.1 and another extent Ac.0.30 cents as 2nd item in total Ac.1.10 cents situated at Asivanipalem covered in patta
No.45 on 14.3.1953 from Bodireddy Appalaswamy’s sons Bodireddy 25
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Venkataswamy, Eswara Rao and others under Registered sale deed vide doc.no.380/1953 and got marked Ex.B1 sale deed in support of his version in that regard. D.W.1 also stated in his evidence in chief in support of his version in the written statement the said Gujju Ramulu and Asi
Appalaswamy had been in possession and enjoyment of said two items with absolute right, title and their names are incorporated in all the Revenue records . He further stated in his evidence that at the time of purchase of said lands, the lands in Asivanipalem village were unsettled and no survey numbers were allotted and transactions had taken place by mentioning the patta number only and when property was surveyed subsequently by the
Surveyor Settlement Authorities , the above said item no.1 in an extent of
Ac.0.80 cents covered in S.No.209/2B of Asivanipelem village, Marripalem,
Visakhapatnam, thereafter said Asi Appanna and Gujju Ramulu divided the property into two equal shares and extent fell to the share of said Asi
Appanna is covered by S.No.209/2B1 and an extent fell to the share of Gujju
Ramulu is covered by S.NO.209/2B2. He further stated in his evidence that on 19.4.1975 Land Acquisition Authorities issued a notice to said Asi
Appanna and Gujju Ramulu under sec.4(1) and 5 of Land Acquisition Act for acquisition of land in S.No.209/2B for the purpose of construction of electrical locoshed by the Indian Railways and acquired 0.12.50 cents from out of the extent in S.No.209/2B1 belongs to Asi Appanna and equal extent from out of extent of Gujju Ramulu in S.No.209/2B2 and in support of his version in that regard he got exhibited original notice Ex.B5 and photo stat copy of same as Ex.B4.
viii)Plaintiffs who relied on Ex.A1 attested copy of Adangal for fasali no.1401/1991 issued by Mandal Reveune officer, Visakhapatnam in support of their claim over plaint schedule property examined PW.4 E.Murali,
Tashildar, Visakhapatnam urban to prove the said document . PW.4 stated in 26
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his evidence in chief by bringing Adangal pertaining to S.No.209/2B of
Marripalem, Bit-1 of Visakhapatnam urban that Ex.A1 was issued by them and as per said Adangal the name of Asi Appanna is shown as pattadar in pattadar column no.12 and as per said Adangal Asi Appanna is the owner and pattadar. But he stated in his evidence during cross examination that fair Adangal shows the settlement of land and and Adangal shows settlement and possession and that the source of title will be mentioned at the fair Adangal and is not aware exactly number of columns in the fair
Adangal . He further stated in his evidence that for localising the property they depend upon the Survey report and survey report is the basis for preparation of FMB.
16) PW.1 Asi Venkata Reddy stated in his evidence during cross examination that he does not remember when the suit survey number was sub-divided and he does not know patta number of the plaint schedule property. On further confrontation he stated that railways acquired some land in the Survey No.209 , but he pleaded ignorance when suggested that notice had been sent in that connection to Gujju Ramulu, Asi Appanna informing an extent of 0.25 cents land belonging to them were also included in that acquisition. On further confrontation, he stated that he did not go through the written statement of D3. PW.1 also admitted in his evidence during cross examination that the name of Gujju Ramulu is also mentioned in Ex.A4.
ii)PW.1 also stated in his evidence during cross examination on behalf of
D1 and D2 thattill 2006 they did not question the defendants as Survey by
ULC Authorities was conducted in the year 2006. On further confrontation
PW.1 stated in his evidence that he cannot say shape of 28 cents of land allegedly retained by Asi Appanna.
iia)PW.2 Aduri Ramesh Reddy stated in his evidence during cross 27
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examination after giving boundaries to 0.28 cents allegedly retained by Asi
Appalaswamy that he cannot say measurements of the plot within the said boundaries and he is not aware whether said 0.28 cents was under cultivation or not? On confrontation about acquisition of some part of property in S.No.209 for electrical locoshed, he pleaded ignorance. He also stated during cross examination that since 2006 only he has knowledge about pertaining to suit schedule property. He also stated in his evidence during cross examination that Asi Appalaswamy was the kartha of the family and that Gujju Apparao and Gujju Pentarao are also members of the family but he is not aware whether Appalaswamy was looking after the entire property in Asivanipalem and 104 Area .
iii) PW.3 K.Srinivasa Rao, Senior Assistant in the office of Urban Land
Ceiling, Visakhapatnam stated in his evidence that Special Competent
Authority, ULC., Visakhapatnam who received summons for production of certain documents directed him by giving Ex.X1 letter to produce said documents and to give evidence and he stated further that ULC had given proceedings in the name of one Asi Pothayya Reddy, S/o.Appanna on 25.3.2006 in respect of property situated in S.No.209/2B1 in an extent of 1434.50 sq.yds situated in Marripalem and identified Ex.X2 certified copy of the said proceedings. But he stated during cross examination that he cannot say the land mentioned in Ex.X2 is retained land or surplus land and their S.O is only competent to explain about Exs.X1 and X2. He stated specifically that he does not anything about the land covered by
S.No.209/2B1 and he is not aware that petitioner Thotayya Reddy was declared as excessive land owner.
17)PW.6 P.Rajendra Prasad, Advocate Commissioner stated in his evidence that he visited schedule property after issuing notices to both counsel and surveyor on 6.12.2015 and surveryor measured the property with the help of 28
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FMB, Ex.A1, A6 and A10 in his presence and after receiving report from
Surveyor, he filed his detailed report and identified Ex.X4 as his report and
Ex.X3 as the Surveyor's report. He further stated that as per his report and
Ex.X3 Surveryors report was found that schedule property is situated in
S.No.209/2B1 and identified the encroachment of 5 ½ cents. On confrontation, he stated in his evidence during cross examination that he does not know the contents of Doc.no.380/1953 stands in the name of Asi
Appanna and Gujju Ramulu. But he stated in his evidence during cross examination on behalf of D3 that basing on 1953 document surveyor fixed the boundaries and he has no idea of items in that document and survey number is mentioned as 209. He stated in his evidence during cross examination on behalf of D3 that 1953 document correlates in survey
No.209/2B1 and as per that documents vendees are Asi Appanna and Gujju
Ramulu. He further stated in his evidence during cross examination on behalf of D1 and D2 as:
“After verifying the documents of the both parties, I have to
submit my report. The Surveyor brought the FMB Sketch. I have
gone through the documents brought by the Surveyor. Basing on
the surveyor report, I prepared my report. After verifying the
documents brought by the Surveyor, I prepared my report. Basing
on the report submitted by the Surveyor, I prepared my report. “
D1 and D2got suggested PW.6 that without verifying the documents of partis and revenue records they prepared the report to suit the claim of the plaintiffs and the same was denied by him.
ii)PW.5 Metta Venkanna is a Mental Surveyor , Pendurthi Mandal and he said to have assisted PW.6 Advocate Commissioner in execution of the warrant, he stated in his evidence in chief that they went to schedule property and measured the same in the assistance of FMB in the presence of 29
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Advocate Commissioner and issued report noting the schedule property covered in S.No.209/2B1 and identified Ex.X3 as the report and rough sketch. He suggested during cross examination on behalf of D1 and D2 that after verifying both documents on ground he measured the land and he has shown extent and measurements of both the sale deeds in his sketch. He also stated during cross examination on behalf of D3 that he had gone through 1953 document for which there was a Settlement Fair Adangal (SFA) which contains the owners of land and he did not bring it that he verified the same at the office. He further stated in his evidence that document shown to him pertains to S.No.209 and as per that document the names of Asi
Appanna and Gujju Ramulu are shown that he has no idea that property covered in that document correlated with other survey number . He further stated in his evidence that parent survey no.209 and same is sub divided into 10 sub divisions and schedule property was declared as surplus land as per their revenue records and he cannot say owners and extent in S.No.209.
He admitted that the land was acquired by the Railways in S.No.209 for construction of electrical locoshed. He also admitted in his evidence that parent stone was not referred for measuring the schedule property.
iii)The scope of the Commission Warrant entrusted to PW.6 P.Rajendra
Prasad, Advocate Commissioner reads as:
It is order that you are hereby appointed as Advocate
Commissioner to record for the purpose of making a local
inspection to localize and identify the property, with the help of
sale deeds and title deeds of both the parties basing on the
boundaries mentioned in the sale deeds with the help of Mandal
Surveyor and the concerned Revenue Records.” iv)As per the case of plaintiffs, Urban Land Ceiling Authority,
Visakhapatnam acquired Ac.0.34 cents out of Ac.0.62 cents in S.No.209/2B 30
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as surplus land as per the CC.NO.6089/76B2 dt.11.7.1980 and sub-divided
S.No.209/2B assigning 209/2B2 to the said surplus land acquired i.e, Ac.0.34 cents and assigning S.No.209/2B1 in respect of Ac.0.28 cents retained by the original owner i.e, Asi Appanna and exhibited Ex.X4 as the statements of sub-division of said survey number .
v)Ex.X3 is the report and rough sketch given by Surveyor PW.5 Metta
Venkanna. The land covered by S.No.209/1A is shown adjacent to the land covered by S.Nos.209/1B, 209/2B1, 209/2B2 and 209/3B on Northern side in the sketch appearing in Ex.A4 . The land covered by S.No.209/5 and 209/4 is shown in that sketch adjacent to land covered in S.Nos.209/1B, 209/2B1, 209/2B2 and 209/3B on Southern side .
vi)In Ex.X3 rough sketch the land covered by S.No.209/1A and land covered by S.No.209/5 and S.No.209/4 is shown adjacent to land covered by 209/1B, 209/2B1 and 209/2B2 on Northern side and southern side respectively but the land covered by S.No.209/3B is shown to the east of land covered by S.No.209/2B2 in Ex.X3 but the survey number of land on
Northern side and southern side of S.No.209/3B is not mentioned in Ex.X3.
vii) On comparison of rough sketch appearing in Ex.A4 and Ex.X3 rough sketch it appears there is some material discrepancy, but unfortunately it was not brought on record in the course of evidence. In rough sketch appearing in Ex.A4 the boundary line between S.NO.209/1B and
S.No.209/2B1 and northern end of boundary line between S.No.209/5 and 209/4 is in straight line . The said features clearly shows only the land covered by S.No.209/2B1, 209/2B2 and 209/3B alone is situate adjacent to the land covered by S.No.209/4 on Northern side but not the land covered by
S.No.209/1B but in Ex.X3 rough sketch the part of land covered by
S.No.209/1B, 209/2B1 and 209/2B2 is shown adjacent to the land covered by
S.No.209/4 on Northern side.
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vii) As mentioned above, it is shown in rough sketch i.e., Ex.A4 - 3 plots with sub division numbers 2B1, 2B2 and 3B adjacent to the land covered by
Sub Division No.4 on Northern side. In Ex.X3 rough sketch also 3 plots are shown adjacent to land in sub-division no.4 on northern side but with sub division numbers 1B, 2B1 and 2B/2 i..e, land covered by sub-division 209/1B which is not appearing in Ex.A4 is shown in Ex.X3 and land covered by sub- division 209/3B which is appearing in Ex.A4 is not shown in Ex.X3 adjacent to the land covered by S.No.209/4 on Northern side.
viii)As per sketch in Ex.A4 the land covered by S.No.209/1B is situated adjacent to land covered by S.No.209/5 on Northern side but not adjacent to land covered by S.No.209/4. To the east of plot covered by S.No.209/1B, the plot covered by S.No.209/2B1 , further to the east of said plot covered by
S.no.209/2B2 to the east plot covered by S.No.209/3B are shown in Ex.A4.
But in Ex.X3 rough sketch to the east of plot covered by S.No.209/1B once again plot with S.No.209/1B shown and to its east plot with sub-division
No.2B1 and thereafter towards east plot sub division No.2B2 is shown but both in Ex.A4 and in Ex.X5 only 4 plots are shown adjacent to sub-division 209/5, and 209/4 on northern side. The portion in the occupation of B1 and
B2 is shown at south east corner in 3rd plot of said 4 plots. The said 3rd plot in Ex.A4 is shown with Sub-Division No.209/2B2. As per the version of plaintiffs their claim is only in respect of land covered by S.No.209/2B1. As mentioned above, it is the case of defendants that Asi Appanna and Gujju
Ramulu partitioned the property i.e, 80 cents of land purchased in Ex.B1 sale deed dt.14.3.1953 and in that partition 40 cents of land with sub division number 209/2B1 fell to the share of Asi Appanna and the remaining 40 cents of land covered by Sub division no.209/2B2 fell to the share of Gujju Ramulu and from out of said 40 cents of land covered by S.no.209/2B2 to the said
Gujju Ramulu and his sons i.e., Pentayya Reddy and Gujju Apparao i.e., B3 in 32
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O.S.No.166/2006 sold the plaint schedule extent now in dispute to D1 and
D2 under Ex.B2 sale deed dt.23.9.1981.
ix)Thus, there is a material discrepancy with respect to the location of land now in dispute shown in Ex.X3 rough sketch appearing in Ex.A4 which are brought on record on evidence on behalf of plaintiffs.
x)As per the commission warrant mentioned above, the Commissioner is acquainted to identify the property in dispute between parties with reference to sale deeds and title deeds of both parties basing on the boundaries mentioned therein. But unfortunately, as mentioned above,
PW.6 P.Rajendra Prasad, Advocate Commissioner stated in his evidence that he does not know the contents of Ex.B1 sale deed and basing on said document Surveryor fixed the boundaries but Ex.X3 report and sketch of the Mandal Surveyor i.e., PW.5 Metta Venkanna does not disclose about reference of Ex.B1 sale deed in the course of survey to localise the land in dispute on ground. As mentioned above, PW.5 stated in his evidence during cross examination that Ex.B1 pertains to S.No.209 and 209 sub divided into 10 sub divisions in Ex.A4 the names of Asi Appanna and Gujji Ramulu is noted against S.No.209/2.
18.Defendants elicited evidence in support of their plea that Asi Appanna and Gujju Ramulu jointly purchased 80 cents and another 30 cents in Ex.B1 sale deed even before survey and settlement and said land correlates to
S.No.209/2B and portion of said property was acquired for construction of locoshed and in that connection notice were issued to Asi Appalaswamy and
Gujju Ramulu and in support of their version in that regard, they got exhibited Ex.B4 notice dt.20.12.2006. Ex.B4 photo copy of notice issued by
Spl.Tashildar, Land Acquisition Act under sec.4(1) and 5(A) of Land
Acquisition Act and its original Ex.B5. The names of Asi Appala Swamy and
Gujju Ramulu are shown as owners of their land proposed to be acquired in 33
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S.No.209/2B. Defendants also established that D1 and D2 purchased plaint schedule extent from D3 and his brother Pentayya Reddy and their father
Gujju Ramulu in Ex.B2 Regd. Sale deed dt.23.9.1981. Ex.B1 sale deed dt.14.3.1953 shows purchase of 80 cents and another 30 cents jointly by Asi
Appanna and Gujju Ramulu. Though the defendants have taken specific plea about purchase of said 80 cents and another 30 cents jointly by Asi Appanna and Gujju Ramulu, plaintiffs being legal heirs of said Asi Appanna did not dispute purchase of property under Ex.B1 sale deed by Asi Appanna and
Gujju Ramulu, further they did not explain if said 80 cents purchased thereunder does not correlates to S.No.209/2B of Asivanipalem, where it situates and survey number to which it correlates.
ii)As mentioned above, the evidence of PWs.1 and 2 during cross examination is to the effect that they do not know about the plaint schedule property till 2006. Except a bare statement that plaint schedule property is the ancestral property of plaintiffs there is no convincing explanation how the ancestors of plaintiffs got the plaint schedule property, plaintiffs did not choose to enter into witness box. As PWs.1 and 2 stated in their evidence in their unmistakable terms that they came to know about plaint schedule property only in the year 2006 when the GVMC authorities surveyed the land, it cannot be said that the evidence of PW.2 either establishes plaintiffs right and possession over the plaint schedule property or disproves the above said version of defendants that plaint schedule extent is part and parcel of half of the extent in S.No.209/2B fell to the share of Gujju Ramulu in the partition between Asi Appanna who is the ancestor of plaintiffs against the said Gujju Ramulu and the said Gujju Ramulu and his sons including D3 sold the same under Ex.B2 sale deed. Added to it, sketch appearing in
Ex.A4 copy of subdivision of owned property issued by Special Officer,
GVMC., Visakhapatnam probablise the location of suit schedule site in 34
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S.No.209/2B2. In view of the same, in the light of specific plea of plaintiffs that the retained land of Asi Appanna is situated in S.No.209/2B1, it cannot be said that plaintiffs established their right and title to suit schedule property and entitled for declaration that they are the absolute owners of the said property.
19.The plaintiff's counsel referred the following decision in support of its contention that entries in Ex.A1 Adangal established the title of Asi Appanna to Ac.0.62 cents in S.No.209/2B of Marripalem village as his name is recorded as pattadar therein:
1.STATE OF ANDHRA PRADESH VS. PRAMEELA MODI AND
OTHERS (2005 (3) ALT 379 DB)
Where the Division Bench of Hon'ble High Court of A.P. observed as:
“ The entires in the Sethwar prepared and maintained under the provisions of the Land Revenue Act cannot be equated to that of mere revenue entries for the purpose of collection of land revenue.”
20.The Learned counsel appearing for defendants referred the following decision in support of their submissions that the entries in Revenue records does not confer any title.
1)UNION OF INDIA & OTHERS Vs. Vasavi Co-op. Housing Society
Ltd., & Others (2014 0 AIR (SC) 937
Where the Hon'ble Supreme Court held as
We are of the view that even if the entries in the Record of rights carry evidentiary value that itself would not confer any title on the plaintiff on the suit land in question. Ext.X-1 is Class Register of 1347 which according to the trial court, speaks of the ownership of the plaintiff vendor’s property. We are of the view that these entries , as such, would not confer any title, Plaintiffs have to show, independent of those entries that the plaintiff’s predecessors had title over the property in question and it is that property which they have purchased. The only document that has been produced before the court was the registered family settlement and partition deed dated 11.12.1939 of their predecessor in interest, wherein, admittedly, the suit land in question has been mentioned.
Even in Ex.A1attested photostat copy Adangal and Pahan, the name 35
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of Asi Appanna is shown as pattadar in respect of Ac.0.62 cents in
S.NO.209/2B but in the next column meant for the name of occupant is blank. As mentioned above, the name of Asi Appanna and also Gujju
Ramulu are shown against land covered by S.No.209/2B in Ex.A4.
Absolutely there is no evidence on record showing how the ancestors of plaintiffs got the land in S.No.209/2B if same was not purchased under Ex.B1 sale deed jointly by Asi Appanna and Gujju Ramulu. In view of the aforesaid decision i.e., 2014 (0) AIR (SC) 937 referred on behalf of defendants , the aforesaid decision i.e., (2005 (3) ALT 379 DB) on behalf of plaintiffs is not helpful to them.
ii)The learned counsel appearing for defendants referred the following decisions in support of their contention that in a suit for declaration of title, plaintiff shall establish his title by cogent and satisfactory evidence without depending upon the weakness of the case of defendants.
1.T.K.MOHAMMED ABUBUCKER (D) Thr. LRs. & Others Vs.
P.S.M.AHAMED ABDUL KHADER & OTHERS (2009 0 AIR SC 2966)
Where the Hon'ble Supreme Court observed as :
“A plaintiff in a suit for declaration of the title and possession, can succeed only by making out his title and entitlement to possession and not on any alleged weakness in title or possession of defendants”.
iii)In this particular case on hand, as mentioned above, the name of Gujju
Ramulu is shown along with the name of Asi Appanna against the land in
S.No.209/2B in Ex.A4 , further defendants filed Ex.B1 sale deed in support of their version that said Asi Appanna and Gujju Ramulu purchased jointly 80 cents and 30 cents before his settlement and said land correlates to said land in S.No.209/2B. Added to it, PW.5 Metta Venkanna Mandal Surveyor stated in his evidence in unmistakable terms that Ex.B1 document shown to him pertaining to S.No.209, therefore, the above said decision referred on behalf of defendants i.e., (2009 0 AIR SC 2966) squarely applicable to the 36
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facts of the case.
20.Therefore, it can be concluded safely that plaintiffs failed to establish their right and title to suit schedule property consequently they are not entitled to be declared as absolute owenrs of said property. Accordingly these two issues are answered against the plaintiffs and in favour of defendants in O.S.No.166/2006.
21.Issue NO.3 in O.S.NO.166/2006 and Issue No.1 in
O.S.NO.24/2009(O.S.NO.1496/2005 )
It is not in dispute that D1 and D2 in O.S.No.166/2006 of the plaintiffs in O.S.No.24/2009 and they had been in possession and enjoyment of plaint schedule property ever since prior to the date of filing of said two suits , in view of the same in the light of finding on Issues Nos.1 and 2 in
O.S.NO.166/2006 Plaintiffs in O.S.No.166/2006 are not entitled for delivery of
vacant possession of suit schedule property whereas plaintiffs in
O.S.No.24/2009 (O.S.NO.1496/2005) are entitled for grant of permanent
injunction against 2nd defendant Adduri Kondala Rao alone as D1 Asi
Thotayya Reddy died during pendency of the suit restraining D2 from interfering with plaintiffs possession and enjoyment of plaint schedule property. Accordingly these two issues are answered.
22.Issue No.4 in O.S.No.166/2006 ;In view of findings on Issue
Nos.1 to 3 as mentioned above, suit shall be dismissed with costs
23.Issue No.2 in O.S.No.24/2009 (O.S.NO.1496/2005):In view of finding on Issue No.1 as mentioned above, the suit shall be decreed with costs against D2 Adduri Kondala Rao granting permanent injunction restraining him from interfering with plaintiffs possession and enjoyment of plaint schedule property .
37
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24In the result,
a) the suit in O.S.No.166/2006 is dismissed with costs.
b)In the result, the suit in O.S.No.24/2009 is decreed against 2nd defendant granting permanent injunction restraining him from interfering with plaintiffs possession and enjoyment of plaint schedule property. Suit against 1st defendant is abated as he died during pendency of the suit.
Typed to my dictation by the Stenographer Grade I corrected by her and
pronounced by me in the open court on this the 30th day of April 2018
IV Additional District Judge Visakhapatnam.
APPENDIX OF EVIDENCE
NO. OF WITNESSES EXAMINED FOR
PLAINTIFF:DEFENDANT: PW.1: Asi Venkata ReddyDW.1:K.David PW.2: Adduri Ramesh ReddyDW.2: Korni Kalyanam
PW.3: K.Srinivasa RaoDW3:D.Mallesh P.W.4: E.MuraliD.W.4:G.Apparao P.W.5; Metta Venkanna PW.6; P.Rajendra Prasad No. of documents marked for Plaintiff Ex.A1 : Attested copy of Adangal in Fasali No.140//1991 issued by Mandal Revenue Officer, Visakhapatnam (urban) dt.1.6.2006 Ex.A2: xerox copy of death certificate of Asi Appanna issued byb Municipal Corporation, Visakhapatnam dt.23.6.1989. Ex.A3:xerox copy of Legal heir certificate dt.23.8.2006 issued by Mandal Revenue Officer, Visakhapatnam Ex.A4: Xerox copy of sub division of total property dt.4.5.1987 issued by Special Officer, Urban Land Ceiling, Visakhapatnam. Ex.A5:Certified copy of Writ Petition No.25245/1997 and WPMP 4791/2006 on the file of Hon’ble High Court of Judicature, Andhra Pradesh, Hyderabad dt.28.2.2006 Ex.A6:xerox copy of Endorsement of the Special Officer and competent authority urban land ceiling , Visakhapatnam dt.25.6.2006 Ex.A7:xerox copy of statement of sub division in the village of Marripalem dt.11.7.80 Ex.A8:Xerox copy of abstract in G.O.Ms.No.183 dt.15.2.2006 & G.O.Ms.No.456 dt.29.7.2007 Ex.A9:Xerox copy of plaint in O.S.No.1496/2005 on the file of II Addl.Junior Civil Judge, Visakhapatnam dt.7.7.2006 38
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Ex.A10:xerox copy of sale deed in favour of Kakara David dt.18.9.81 Ex.A11:original General power of attorney dt.1.9.2006 Ex.A12:Two market value slips Ex.A13: xerox copy of plaint in O.S.No.1447/2005 on the file of II Addl. Junior
Civil Judge, Visakhapatnam.
Ex.A14:Two photos
Ex.X1: Permission letter issued by Special Officer and competent authority, Urban Land Ceiling, Visakhapantam. Ex.X2: Certified copy of Endorsement of the Special Officer and competent authority urban land ceiling , Visakhapatnam Ex.X3: Surveyors report. Ex.X4: Advocate Commissioners report No. of documents marked for defendants Ex.B 1: Certified copy of Regd. sale deed dt.14.3.1953 in favour of Asi Appayyamma and another Ex.B2: Certified copy of Regd.sale deed dt.23.9.1981 in favour of 1st defendant executed by G.Ramulu Ex.B3: original tax pass book in favour of 1st defendant
Ex.B4: notice issued by Spl.Tashildar, Land Acquisition dt.20.12.2016 Ex.B5: Notice issued by Land Acquisition Authorities dt.19.4.1974
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30.4.2018
O.S.No.166/2006
Common Judgment pronounced. (Vide separate Common Judgment in this suit and in O.S.No.24/2009)
In the result, the suit is dismissed without
costs.
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O.S.No.24/09
Common Judgment pronounced. (Vide separate Common Judgment in this suit and in O.S.No.166/2006)
In the result, the suit is decreed against 2nd defendant by granting permanent injunction restraining him from interfering with plaintiffs possession and enjoyment of plaint schedule property. Suit against 1st defendant is abated as he died during pendency of the suit.
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I.A.NO.1213/2010 in O.S.No.166/2006
Dt.30.4.2018
As the Advocate commissioner was already appointed and he also filed his report further he examined as a witness on behalf of plaintiff this I.A is closed
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I.A.NO.721/2015 in O.S.No.166/2006:
As the suit was reopened and Advocate commissioner is examined as a witness on behalf of petitioner/plaintiff and also marked commissioner report as Exhibit, this petition is closed.
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Charge sheet in S.C.NO.139/2013 43
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