IN THE COURT OF THE SENIOR CIVIL JUDGE
AT ASIFABAD
Present:- K. Venkatesh
Senior Civil Judge
Asifabad
Thursday, this the 13th day of April, 2023.
O.S. No. 30 of 2013
Between:
1. Kishandas Khilwani, S/o: Dharamdas Khilwani, Age: 66 years, Occ:Nil, R/o:H.No.2-3-71, M. G. Road, Sirpur Kagaznagar (died).
2. Nirmala Kishandas Khilwani, W/o: Late Kishandas Khilwani, Age: 67 years, Occ: Household.
3. Kumar Kishandas Khilwani, S/o: Late Kishandas Khilwani, Age: 45 years, Occ: Business.
4. Naresh Kishandas Khilwani, S/o: late Kishandas Khilwani, Age: 43 years, Occ: Business.
Plaintiffs no.2 to 4 are R/o: H.No. , Punnam Asihwarya Bigranji town, Nagpur-13 Mahastra State.
5. Maneesha, W/o: Chandra Kumar Rungvani, Age: 41 years, Occ: Household, R/o: Mayuresh Strushti, LBS Marg, Bhandu, West Mumbai.
(As per amendment I.A.No.43/2018 in OS NO.30/2013, dated 23.072018 plaintiffs no.2 to 5 are brought on record as legal heirs of plaintiff no.1)
...Plaintiffs
A N D
1. Laxmi Narayan Yadav, S/o: Late Nathulal Yadav, Age: 55 years, Occ: Business, R/o: Plot No.82, near Maharudra Maruthi
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Mandir, Galli No.4, Pundalik Nagar, Garkhaeda, Aurangabad, Maharastra State.
2. Nanda Yadav, W/o : Late Vinod Yadav, Age: 45 years, Occ: Nil.
3. Reema Yadav, D/o: Late Vinod Yadav, Age: 27 years, Occ: Nil.
4. Raveena Yadav, D/o: Late Vinod Yadav, Age: 24 years, Occ: Nil.
5. Kajal Yadav, D/o: Late Vinod Yadav, Age: 21 years, Occ: Nil.
6. Maneesh Yadav, S/o: Late Vinod Yadav, Age: 19 years, Occ: Auto driver.
Defendants no.2 to 6 are R/o: M.G. Road, Opp: Andhra Bank, Sirpur Kagaznagar.
...Defendants
This suit is coming before me on 16.03.2023 for final hearing in the presence of Sri T. Suresh, Advocate for plaintiffs and Sri M. Suresh, Advocate for defendants and having heard and stood over for consideration till to-day, this Court delivered the following:-
:: J U D G M E N T ::
This suit is filed by the plaintiffs for declaration of title and recovery of possession of the suit schedule property as described in the plaint schedule situated at M.G. Road, Sirpur Kagaznagar.
2.The averments of the plaint in brief are that, the plaintiff no.1 is the owner and possessor of open place to an extent of 87
Sq.Yards over which an old house bearing No.2-3-75 was existing, which was collapsed due to dilapidated condition and house bearing
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no.2-3-75/1, constructed over an area of 75 Sq. Yards, roofed with
Mangalore tiles, consisting of three rooms, one kitchen abutting to the said house, both the lands located in one compact area, situated at M.G. Road, Sirpur Kagaznagar and that originally the
Sirpur Paper Mills Company Limited was the owner of the suit schedule property and other lands in Sy.No.63 & 64 of Sirpur
Kagaznagar and the father of the plaintiff no.1 namely Dhramdas
Khilwani had obtained the suit premises from Sirpur Paper Mills
Company Limited on lease and executed a rented agreement in the year 1985 only for 11 months in the year 1986. The father of the plaintiff no.1 had also constructed a house consisting of two rooms, roofed with Mangalore tiles, he had also constructed one shed in- front of the said house and used to run a hotel in it in the name and style as “Bajrang Sweet house” for some time and when he became sufficiently old aged, he appointed one Nathulal Yadav, who is father of defendant no.1 as a Manager and that the father of the plaintiff no.1 died, so the said hotel was closed and due to old and dilapidated condition, the shed also collapsed.
3.The plaintiff further submits that, the father of the plaintiff no.1 had also paid the rent as agreed to the Sirpur Paper Mills
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Company Limited, thereafter neither the father of the plaintiff no.1 nor the plaintiff no.1 has executed any rental agreement in favour of Sirpur Paper Mills Company Limited and that they are in exclusive possession and enjoyment over the suit premises independently since 1996 to the knowledge of the Sirpur Paper Mills Company
Limited and that plaintiff no.1 also came to know that the Sirpur
Paper Mills Company Limited, Kagaznagar has surrendered the land in Sy.No.63 and 64 along with other encroached lands to the
Government and the Government of A.P. has issued G.O.Ms.No.125,
dated 12.02.1999 to this effect and in lieu of this land, government
has given some other land to the Sirpur Paper Mills Company
Limited, Kagaznagar for the said land, and as on the date of surrendering of the said land by the company, the plaintiff was in exclusive possession and enjoyment of the suit premises situated in
Sy.No.63 and 64 and that the plaintiff no.1 has also applied to the concerned authorities for grant of patta of the suit land, as he was in exclusive possession and enjoyment of the suit premises since 1986, keeping in view of long standing possession of plaintiffs over the suit property, the Tahsildar, Kagaznagar had also issued patta certificate for suit premises in favour of plaintiff no.1 vide
Proceedings No.RC.No.A/3307/97, dated 01.08.2009 and
RC.No.A/3307/97, dated 01.08.2009. Therefore, the plaintiff no.1
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has become the full-fledged owner and he has been in possession and enjoyment of the suit premises as an absolute owner and that he has also paying municipal taxes to the Municipality, Kagaznagar regularly and that the ownership of the suit property was also transferred in the name of the plaintiff no.1 in the year 2009 as per orders passed on 17.04.2009.
4. The plaintiffs further submits that, during the life time of the father of the defendant no.1, he used to run the said Bhajrang
Sweet house as Manager of the plaintiff for some period, during that period the family of father of the defendant no.1 used to reside in the house bearing no.2-3-75 with the permission of plaintiff no.1.
As soon as the hotel shed was collapsed, the entire sweet house business was closed and father of the defendant no.1 was also died, then the defendant no.1 has shifted his residence to Aurangabad and he is doing his business at Aurangabad and the defendant no.2 is the daughter-in-law of late Sri Nathulal Yadav, and the husband of defendant no.2 also died, then the defendants no.3 to 6 are the children of defendant no.2 and at present they are living in
H.No.2-3-75 out of the suit premises unauthorizedly. During the life time of the defendant no.1 he filed a suit for injunction against the
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plaintiff no.1 before the Junior Civil Judge’s Court, Sirpur and the said suit was dismissed, he has also preferred an appeal and the same was also dismissed. After the death of Nathulal Yadav, the plaintiff no.1 was also filed a suit for injunction against the defendant no.2 to 4 before the Junior Civil Judge’s Court, Sirpur for injunction, but the defendants are residing in one of the houses in suit premises illegally, even if the said suit is decreed, no purpose will be served, unless the defendant no.1 to 6 are evicted from the same in lawful manner. Therefore, the plaintiff no.1 has filed an application before the Junior Civil Judge’s Court, Sirpur vide
I.A.No.152/2013 seeking permission to withdraw the said suit in
O.S.No.56/2011, with a request to file fresh suit for declaration of
title and recovery of possession and the said petition was allowed by the said court and permission was accorded on 29.04.2013. The defendant no.1 is the eldest son of Nathulal Yadav, as such he was made as party to the suit and the defendant no.2 to 6 are the daughter in law and grandchildren of late Nathulal Yadav and the possession of defendant no.1 to 6 is an unauthorized and illegal and they are liable to be evicted from the suit premises and that the plaintiff no.1 approached the defendants on 03.04.2013 and requested them to vacate the suit premises and to hand over the vacant possession, but the defendants bluntly refused to vacate the
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suit premises and they also denied the title of the plaintiff no.1 over the suit schedule property. Hence, the suit.
5.The defendant no.2 filed his written statement, defendant no.3 to 6 filed adoption memo by adopting the written statement filed by the defendant no.2. The defendant no.2 denied the contents of plaint averments in toto and submitted that, as a matter of fact the land upon which the suit house bearing no.2-3-75/1 is existing and the open plot measuring 87 Sq. yards belonging to
Sirpur Paper Mills Limited was long back leased out in favour of the father in law of the defendant no.2 i.e. Nathulal Yadav and that during the life time of Nathulal Yadav, he had constructed two houses i.e. bearing no.2-3-75 and bearing no.2-3-75/1 and he used to run a hotel i.e. “Bhajrang Sweet Home” in front portion of house bearing no.2-3-75 and used to reside along with the family members in the remaining rear portion of said house bearing no. 2- 3-75/1. That the said Nathulal Yadav died on 22.03.1991 leaving behind him the defendant no.1, the husband of defendant no.2,
Meera Bai and the defendant no.2 to 6 herein as his legal heirs and that after the death of said Nathulal Yadav, the lease was granted in favour of the mother in law of the defendant no.2 with regard to suit houses by Sirpur Paper Mills Company Limited, Kagaznagar and subsequently the ownership was also transferred on the name of
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the mother-in-law of the defendant no.2 and defendant no.2 to 6 used to reside in the said houses without any interruption and that the mother-in-law of defendant no.2 also used to pay the land rents to the Sirpur Paper Mills Company Limited, Kagaznagar and she also used to pay the house taxes of the suit house in the Municipality,
Sirpur Kagaznagar and she has also used to pay the electric charges of the meter which is existing in the suit house and that the suit house bearing no.2-3-75 which was constructed by the father-in-law of defendant no.2 was in dilapidated condition and as such the mother-in-law of the defendant no.2 got removed the same and sold out the open plot, upon which the house bearing no. 2-3-75 was existing to one Venkanna, the cloth shop owner of Kagaznagar Town and that while the things stood thus, the mother-in-law of defendant no.2 died on 24.10.2012 and since then the defendant no.2 to 6 herein are alone or in exclusive possession and enjoyment over the house bearing no.2-3-75/1.
6.The defendants further submits that, the plaintiffs who are rich and influencial persons got created some documents and by taking undue advantage of said fabricated documents habituated to file the suit against the defendants on false grounds to knock away the suit house by hook and crook. In continuance of his said ill motive, he has filed suit vide OS No.34/2009 in the court of Junior
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Civil Judge at Sirpur against the husband of the defendant no.2 and
while the said suit was pending, the husband of the defendant no.2 died and ultimately the said suit was dismissed. Thereafter, he has also filed a suit against defendant no.2 to 4 herein for perpetual injunction in the court of Junior Civil Judge at Sirpur vide OS
No.56/2011 on false grounds and with created cause of action and when he could not succeed in his illegal attempts to occupy the suit house in high handed manner, he filed petition for withdrawal of the suit and thereafter filed a present suit on false grounds with an ill intention to harass the defendants herein and that the defendant no.2 herein is a poor widow has been residing in the said house bearing no.2-3-75/1 along with defendant no.3 to 6 herein who are her children and prior to the defendants herein the father-in-law of the defendant no.2 who constructed the suit houses was in possession over the said house and thus by way of inheritance, the defendant nos.2 to 6 became the owners of the suit house bearing no.2-3-75/1 and they alone are residing and that basing on the fabricated documents the plaintiffs have filed the present suit and that the plaintiffs have no right of whatsoever manner over the suit house, filed the present suit to illegally grab away the suit house from the possession of the defendant no.2 to 6. Hence, they prays the court to dismiss the suit with costs.
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7.As matter of record, during course of final hearing, this court has noticed that, without framing the issues, the matter was posted for evidence and both parties adduced their evidence. As such this court has framed the following issues:
i) Whether the plaintiffs are entitled for declaration of title in respect of the suit schedule property as prayed for?
ii) Whether the plaintiffs are entitled for recovery of possession of the suit schedule property as prayed for?
iii) If so, as to what relief?
8. After framing of the above issues, the learned counsel for the plaintiffs filed a memo stating that they have no further evidence on the side of the plaintiffs. The learned counsel for the defendants also endorsed on the said memo that he has no further evidence on the side of defendants. Hence, the matter is posted for arguments.
9.During the course of trial, on behalf of the plaintiffs, the plaintiff no.4 himself is examined as PW1 and Ex.A1 to A11 are got marked. One Pavan Kumar Gaba is examined as PW2. On behalf the defendants, the defendant no.2 herself is examined as DW1 and
Ex.B1 to B25 are got marked. Sri Nanda Kishor Joshi and Ayub Khan are examined as DWs.2 and 3.
[[10.Heard the learned counsel for the plaintiffs and learned counsel for the defendants.
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11.Perused the record.
12.The learned counsel for the plaintiffs has contended that, the father of the plaintiff no.1 by name Dharamdas Khilwani had obtained the suit premises from Sirpur Paper Mills Limited on lease through rental agreement in the year 1985 for a period of 11 months and he had constructed a house consisting of two rooms roofed with Mangalore tiles, so also, constructed a shed in-front of the said house and used to run a hotel in it in the name and style as ‘Bhajrang Sweet House’ for some period, when he became old, he appointed one Nathulal Yadav who is the father of the defendant no.1 as Manager of the said hotel and he has also run the said hotel for some period as Manager, as the father of the plaintiff no.1 was also died, hence the said hotel was closed due to its dilapidated condition and that in the year 1999 the Sirpur Paper Mills Limited has surrendered the suit lands situated in Sy.No.63 and 64 along with other lands and that as on the date of the surrendering of the said land by the said company, the plaintiff no.1 was in the exclusive possession and enjoyment over the suit schedule property and he also applied to the concerned authorities to grant patta of the suit land in his name and that basing on the previous long standing possession, the Tahsildar, Kagaznagar had issued patta certificate for the suit premises under Ex.A1 and A2, dated
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01.08.2009 and also the father of the plaintiff paid municipal taxes to municipality, Kagaznagar regularly and the ownership of the suit property was also transferred in the name of plaintiff no.1 on 17.04.2009 and that the father of the defendant no.1 was worked as
Manager of Bhajrang Sweet house and the father of the defendant no.1 used to reside in house bearing no.2-3-75 and that as soon as the hotel was collapsed, the entire sweet house business was closed and the father of the defendant no.1 also died and that presently defendant no.2 to 6 are residing in house no.2-3-75/1 unauthorizedly, as such they have filed a suit for perpetual injunction before the Junior civil Judge’s Court, Sirpur and subsequently it was withdrawn with a liberty to file fresh suit for declaration of title and recovery of possession, since the defendant no.2 to 6 were in illegal possession of the suit schedule premises.
Hence, he prays the court to decree the suit with costs.
13.On the other-hand the learned counsel for the defendant no.2 to 6 has strenuously argued that, the plaintiffs have filed the present false suit against defendants by obtaining forged and fabricated documents by influencing the revenue and municipal officials and that the plaintiffs have no right or title over the suit schedule property and that the defendant no.2 to 6 are in exclusive possession and enjoyment of the suit schedule property and the
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documents which are filed by them i.e. Ex.B1 to B24 clinchingly establishes that the plaintiffs have no right or title over the suit schedule property, hence he prays the court to dismiss the suit with exemplary costs.
14.To prove the case of the plaintiffs, they have filed certain documents i.e. Ex.A1 is proceedings of MRO, Kagaznagar vide
Proc.No.3307/1997, dated 01.08.2009. Ex.A2 is proceedings of
MRO, Kagaznagar vide Proc.No.3307/1997, dated 01.08.2009.
Ex.A3 is mutation proceedings of house bearing no.2-3-75/1, dated 17.04.2009 issued by Municipal Commissioner, Kagaznagar. Ex.A4 is ownership certificate, dated 17.04.2009. Ex.A5 is house tax receipt of H.No.2-3-75/1 for the year 2009. Ex.A6 is house tax receipt of H.No.2-3-75/1 for the year 2010. Ex.A7 is house tax receipt of H.No.2-3-75/1 for the year 2011-12. Ex.A8 is house tax receipt of H.No.2-3-75/1 for the year 2012-13. Ex.A9 is demand notice dated 23.05.2013. Ex.A10 is the certified copy of affidavit and petition filed under Order XXIII Rule 1 of CPC along with docket order. Ex.A11 is certified copy of judgment and decree in
A.S.No.2/2008.
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15.On behalf of the defendants certain documents are filed i.e.
Ex.B1 letter submitted to Sirpur Paper Mills Limited by Smt.
Meerabai Yadav, dated 07.06.2004. Ex.B2 is rental certificate issued by Sirpur Paper Mills Limited. Ex.B3 is Meeseva residential certificate, dated 30.11.2015. Ex.B4 is Municipality property tax receipt, dated 15.10.2008. Ex.B5 is Municipality property tax receipt, dated 02.06.2010. Ex.B6 is ownership certificate issued by
Municipality, Kagaznagar, dated 08.05.2007. Ex.B7 is property tax receipt issued by Municipality for the year 01.04.1993 to 31.03.1994, dated 20.08.1994. Ex.B8 is property tax receipt issued by Municipality for the year 01.10.1992 to 31.03.1993, dated 27.08.1994. Ex.B9 is land receipt issued by Sirpur Paper Mills
Limited, dated 01.09.1990. Ex.B10 is land receipt issued by Sirpur
Paper Mills Limited, dated 01.10.1993. Ex.B11 is land receipt issued by Sirpur Paper Mills Limited, dated 01.09.1997. Ex.B12 is land receipt issued by Sirpur Paper Mills Limited, dated 01.03.1991.
Ex.B13 is land receipt issued by Sirpur Paper Mills Limited, dated 01.11.1984. Ex.B14 is land receipt issued by Sirpur Paper Mills
Limited, dated 01.12.1990. Ex.B15 is land receipt issued by Sirpur
Paper Mills Limited, dated 01.12.1989. Ex.B16 is land receipt issued by Sirpur Paper Mills Limited, dated 01.08.2004. Ex.B17 is land receipt issued by Sirpur Paper Mills Limited, dated 01.06.2004.
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Ex.B18 is land receipt issued by Sirpur Paper Mills Limited, dated 01.11.2004. Ex.B19 is land receipt issued by Sirpur Paper Mills
Limited, dated 01.11.2005. Ex.B20 is land receipt issued by Sirpur
Paper Mills Limited, dated 01.04.2005. Ex.B21 is land receipt issued by Sirpur Paper Mills Limited, dated 01.05.2004. Ex.B22 is land receipt issued by Sirpur Paper Mills Limited, dated 19.01.2004 for the year 01.04.2002 to 31.08.2004. Ex.B23 is land receipt issued by Sirpur Paper Mills Limited, dated 01.06.2005. Ex.B24 is land receipt issued by Sirpur Paper Mills Limited, dated 02.05.2005.
Ex.B25 is Patta certificate, dated 11.04.2005.
16.It is settled law that where a party is seeking declaration of title, burden heavily lies on such a party to adduce satisfactory evidence to prove his title and possession and that he has to succeed only on the strength of his case and not on the weakness of case set up by defendants. When title is claimed, one has to prove the source of such title and identity of the property clearly.
17.ISSUE NO.1:
The averments of the plaint and the evidence of PW1 in lieu of chief examination is that, the suit schedule property originally belongs to Sirpur Paper Mills Company Limited, and the said property was obtained by the father of the plaintiff no.1 Sri
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Dharamdas Khilwani on lease and executed a rental agreement in the year 1985 only for a period of 11 months. But, no document is filed by the plaintiffs to substantiate their claim. The plaintiffs mainly relying on Ex.A11 copy of the judgment and decree passed in Appeal Suit No.2 of 2008 by the Senior Civil Judge’s Court,
Asifabad and the said appeal was filed by the plaintiff no.1 herein against the judgment and decree passed by the Junior Civil Judge’s
Court, Sirpur in OS No.23 of 2012, dated 23.01.2007, the said suit was filed by M/s. Sirpur Paper Mills Limited, Kagaznagar against the plaintiff no.1 herein for eviction in respect of land to an extent of 84x15 feet situated in Sy.No.63 and 64. On perusal of the Ex.A11 it is evident that, originally the suit was filed by the Sirpur Paper Mills
Limited, against the plaintiff no.1 herein for eviction in respect of the land to an extent of 84x15 feet situated in Sy.No.63 and 64.
But, the contents of Ex.A11 does not disclose that the property in the above appeal suit and the property in the present suit are one and the same. Even the plaintiffs did not file any document before this court to show that both properties are one and the same.
18.Further, as per the averments of the plaint, as well as the evidence of PW1 that, after obtaining lease of the suit schedule property, the father of the plaintiff had constructed a house consisting of three rooms, roofed with Mangalore tiles, he had also
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constructed one shed in-front of the said house and used to run a hotel in it in the name and style of ‘Bhajrang Sweet House’. But, no document is filed by the plaintiffs to prove their contention.
Further, it is the version of the plaintiffs that the father of the plaintiff no.1 run the above hotel for some period and then he became sufficiently old aged, he appointed one Nathulal Yadav who is the father of the defendant no.1 as a Manager of said hotel and he had also run the said hotel for some period as a Manager. On perusal of Ex.A11, on behalf of the plaintiff no.1 herein one
Gopaldas Chebria was examined as DW2 in O.S.No.23 of 2004, wherein he deposed that there was a hotel in the name of Bhajrang hotel run by Nathulal in the suit premises for the last 20 to 25 years.
So, it is clear that the father of the plaintiff no.1 was not the owner of the said hotel. If really the father of the plaintiff no.1 was the owner of the said hotel, definitely DW2 would have deposed the same in his evidence.
19.The further evidence of PW1 is that, the Sirpur Paper Mills
Company Limited, Kagaznagar has surrendered entire land in
Sy.No.63 and 64 to the Government of A.P. vide G.O.Ms.No.125,
dated 12.02.1999 and that as on the date of surrendering of the
said land by the company, the plaintiffs were in exclusive possession and enjoyment over the suit premises and the plaintiff
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was also applied to the concerned authorities for grant of patta of the suit land and that keeping in view of long standing possession of plaintiff over the suit property, the Tahsildar, Kagaznagar had also issued patta certificate for suit premises under Ex.A1 and A2 respectively. Whereas, the counsel for plaintiff no.1 herein who filed appeal suit on behalf of the plaintiff no.1 herein in A.S.No.2 of 2008 was argued in the said appeal that, a patta was also granted in favour of the defendant (plaintiff no.1 herein) by the Government for the suit property after he approached the Hon’ble High Court of
A.P. If really the properties which are mentioned in the present suit, as well as, in appeal suit in A.S.No. 2 of 2008 are one and the same, the plaintiffs herein would have mentioned the same in the present suit that after approaching the Hon’ble High court of A.P., they were granted patta. So, it is further clear that the properties mentioned in A.S.No.2 of 2008 is not the same property to that of the present suit schedule property. Even, there is no mention in the plaint about filing of the suit and appeal suit, so also, the properties in the above appeal suit and in the present suit are one and the same.
20.Further, as per the evidence of PW1 that, after granting pattas under Ex.A1 and A2, dated 01.08.2009 in his favour, the ownership of the suit property was also transferred in the name of the plaintiff in the year 2009 as per the orders passed on 17.04.2009. Indeed,
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as per procedure, after granting of patta, the ownership will be transferred in the name of the person in whose name the patta was granted. But in the present case after transferring ownership in the name of the plaintiff no.1, patta certificate was alleged to have been granted in favour of the plaintiff no.1. So, it is crystal clear that either Ex.A1, A2 or Ex.A4 ownership certificate are created documents. Further, the plaintiff did not file any document to show his possession prior to issuance of either Ex.A1, A2 or Ex.A4.
Further, the present suit has been filed for declaration in respect of house bearing no.2-3-75 and house bearing no.2-3-75/1, but there is no document in respect of H.No.2-3-75 except Ex.A1 patta certificate to substantiate the claim of the plaintiffs. In respect of
H.No.2-3-75/1 except Ex. A1 to A11, no other document is filed to substantiate the claim of the plaintiff. Further, Ex.A3 alteration of name which was issued by the Municipal Commissioner,
Kagaznagar, dated 17.04.2009 in respect of H.No.2-3-75/1 by mutating the name of the plaintiff no.1 after deleting the name of the mother-in-law of the defendant no.2, so also, Ex.A4 ownership certificate in respect of the same house which was issued by the
Municipal Commissioner, Kagaznagar in favour of the plaintiff no.1.
Ex.A3 and A4 documents were issued by the concerned municipality on same day by deleting the name of mother-in-law of defendant
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no.2 that too, without issuing any notice to the defendants.
Moreover as on the date of issuance of Ex.A3 and A4 no patta certificate was issued in favour of the plaintiff no.1 in respect of house bearing no.2-3-75/1.
21.The further version of PW1 that, after closing Bhajrang sweet house, the father of the defendant no.1 used to reside in the house bearing no.2-3-75 with permission of the plaintiff and that as soon as the hotel was collapsed, the entire sweet house business was closed and the father of the defendant no.1 was also died, then the defendant no.1 has shifted his residence to Aurangabad and defendant nos.2 to 6 who are daughter-in-law and grand children of late Nathulal Yadav are at present living in H.No.2-3-75/1 unauthorizedly. It is further version of the PW1 that during the life time of defendant no.1, he filed a suit for injunction against the plaintiff before the Junior Civil Judge’s Court Sirpur and the said suit was dismissed, and he has also preferred an appeal and the same was also dismissed. But, no document is filed to that effect. Even,
DW1 during her cross examination denied about the filing of the said suit by her father-in-law.
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22.It is further version of PW1 that, after death of Nathulal Yadav, the plaintiff no.1 has also filed a suit for injunction against the defendant no.2 to 4 before the Junior Civil Judge’s Court, Sirpur for mere injunction, but the defendants are residing in one of the house in suit premises illegally, even if the said suit is decreed, no purpose will be served, unless defendant no.1 to 6 are evicted from the same in lawful manner, therefore, the plaintiff no.1 has filed a petition in I.A.No.152/2013 before the Junior Civil Judge’s Court,
Sirpur seeking permission to withdraw the said suit in OS
No.56/2011, with a request to file fresh suit for declaration of title and recovery of possession and the said petition was also allowed by the said court and permission was accorded on 29.04.2013. As seen from the evidence of PW1 it is apparently clear that as on the date of filing of suit in OS No.56/2011 before Junior Civil Judge’s
Court, Sirpur, the plaintiff no.1 herein is having very much knowledge that the defendants herein were in possession of the suit schedule property. Further, as per the version of PW1 he filed an application to withdraw the above suit with a liberty to file fresh suit for declaration of title and recovery of possession of the suit schedule property.
23.On perusal of Ex.A10 which is the certified copy of affidavit and petition filed under Order XXIII Rule 1 CPC along with docket
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order in I.A.No.152/2013 in OS No.56/2011 on the file of Junior Civil
Judge’s Court, Sirpur, it appears that the plaintiff no.1 herein has
mentioned in the affidavit and petition that he filed the above suit for permanent injunction against the defendants, but he wants to withdraw the suit due to unavoidable circumstances and file a fresh suit whenever required to give permission to withdraw the suit.
Whereas, PW1 has mentioned in his plaint, as well as in his chief examination that, he filed the above interlocutory application to withdraw the suit with a liberty to file fresh suit for declaration of title and recovery of possession. So, it is clear that the plaintiffs herein without taking permission from the concerned court to file comprehensive suit, they have filed the present suit. Further, the plaintiffs have suppressed the material facts before the court.
24.It is pertinent to mention here that, the plaintiffs have filed
Ex.A1 patta certificate issued in respect of H.No.2-3-75, dated 01.08.2009 and Ex.A2 patta certificate issued in respect of H.No.2- 3-75/1, dated 01.08.2009 in favour of the plaintiff no.1. The both documents were issued by the the then same Mandal Revenue
Officer, Kagaznagar on the same date, month and year in favour of the plaintiff no.1 herein. On perusal of Ex.A1 and A2 it is apparent on the face of the documents that, in Ex.A1 the concerned Revenue
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officer put his signature with blue ink pen, whereas in Ex.A2 patta certificate his signature was made with green ink pen. Further, in
Ex.A1 the official stamp of Tahsildar was affixed in Telugu, whereas in Ex.A2 the stamp of Tahsildar was affixed in English. Moreover, if we observe the signatures of the Mandal Revenue Officer on Ex.A1 and A2 with a naked eye, those signatures are not one and the same and there is a variation between both signatures. Further, in
Ex.A1 and A2 the same challan number was referred as C.No.9889,
dated 31.03.2005. If really the plaintiff no.1 had paid any amount
to the revenue authority in respect of both properties by way of challan, definitely there should be two different challans. So, it is clear that both documents are created one and that basing on Ex.A1 and A2, Ex.A5 to A9 i.e. tax receipts are brought into existence.
Basing on the above documents they have filed the present false suit against the defendants.
25.On behalf of plaintiffs, one Pavan Kumar Gaba is examined as
PW2, now he is aged about 42 years, he deposed that the father of the plaintiff was the owner and possessor of the suit schedule property and Sirpur Paper Mills Limited has executed rental agreement in the year 1985 for a period of 11 months and the grandfather of PW1 constructed one house roofed with Mangalore
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tiles and run the Bhajrang Sweet House and the father-in-law of defendant no.2 worked as Manager of the said Bhajrang hotel for about 5 years from the year 1985 to 1990. In-fact in the year 1985 the age of the PW2 might be five years, then how could he know about the above aspects. During the cross examination, he admitted that, he took the shop of plaintiff no.1 on lease and running the Bakery business. So, it is clear that PW2 is not having any knowledge about the suit schedule property and he gave his evidence to support the version of PW1. Hence, the evidence of
PW2 is no way helpful to the case of the plaintiffs.
26. On the other-hand the defendant no.2 is examined as DW1, through her Ex.B1 to B25 are got marked. The evidence of DW1 coupled with Ex.B1 to B25 which discloses that, initially the father- in-law of DW1 took the suit schedule property on lease and constructed two houses bearing no.2-3-75 and H.No.2-3-75/1 and that his father-in-law Nathula Yadav run Bhajrang sweet house, thereafter, after his death, basing on their previous possession, the revenue officials granted patta under Ex.B25, dated 11.04.2005 in favour of the mother-in-law of DW1 and they were also paying house tax under Ex.B4, Ex.B5,Ex.B7, Ex.B8, prior to that also tax was paid to the said property from the year 1990 onwards till the
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year 2005 to Sirpur Paper Mills Limited. Even, DWs.2 and 3 are also supported the version of DW1. However, here, we are not deciding the title of the defendants in respect of the suit schedule property.
It is the bounded duty of the plaintiffs who filed suit for declaration of title and recovery of possession, they can succeed only on the strength of their own title and that it is not obligatory on the part of the defendants to plead and prove the possible defects in the plaintiffs’ title and so if the plaintiffs fail to establish their title, even if the defendant fails to establish their own title, the plaintiffs must be non-suited. In this case since the plaintiffs are seeking declaration of their title to the suit property, they have to establish their title and they cannot expect relief on the basis of the weakness of the case of the defendants, or on the basis that the evidence adduced by the defendants does not establish their title to the suit property.
27.As seen from the evidence adduced by both parties i.e. oral and documentary, and foregoing reasons, it can be safely concluded that, the plaintiffs failed to establish their title in respect of the suit schedule properties. Hence, this issue is answered against the plaintiffs and in-favour of the defendants.
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28.ISSUE NO.2:
In view of the finding given in issue no.1, this issue is also answered against the plaintiffs holding that the plaintiffs are not entitled for recovery of possession of the suit schedule property.
29.ISSUE NO.3:
In the result, the suit is dismissed, however, no order as to costs.
D ictated to the Stenographer, corrected and pronounced by me in the open Court on this the 13 th day of April, 2023.
SENIOR CIVIL JUDGE
ASIFABAD
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For plaintiffs:
PW.1: Sri Kishandas Khilwani – Plaintiff no.4
PRL.SENIOR CIVIL JUDGE
PW.2: Sri Pavan Kumar Gaba
For defendants :
DW.1: Smt. Nanda Yadav – Defendant no.2 DW.2: Sri Nanda Kishor Joshi DW.3: Sri Ayub Khan
EXHIBITS MARKED
For plaintiffs:
Ex.A1: Proceedings of MRO, Kagaznagar vide Proc.No.3307/1997,
dated 01.08.2009.
Ex.A2: Proceedings of MRO, Kagaznagar vide Proc.No.3307/1997,
dated 01.08.2009.
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Ex.A3: Mutation proceedings of house bearing no.2-3-75/1, dated 17.04.2009 issued by Municipal Commissioner, Kagaznagar. Ex.A4: Ownership certificate, dated 17.04.2009.
Ex.A5: House tax receipt of H.No.2-3-75/1 for the year 2009. Ex.A6:
House tax receipt of H.No.2-3-75/1 for the year 2010. Ex.A7: House tax receipt of H.No.2-3-75/1 for the year 2011-12. Ex.A8: House tax receipt of H.No.2-3-75/1 for the year 2012-13. Ex.A9: Demand notice dated 23.05.2013.
Ex.A10: Certified copy of affidavit and petition under Order XXIII Rule 1 of CPC along with docket order.
Ex.A11: Certified copy of judgment and decree in A.S.No.2/2008.
For defendants:
Ex.B1: Letter submitted to Sirpur Paper Mills Ltd. by Smt. Meerabai Yadav, dated 07.06.2004.
Ex.B2: Rental certificate issued by Sirpur Paper mills Ltd.
Ex.B3: Meeseva residential certificate, dated 30.11.2015.
Ex.B4: Municipality property tax receipt, dated 15.10.2008.
Ex.B5: Municipality property tax receipt, dated 02.06.2010.
Ex.B6: Ownership certificate issued by Municipality, Kagaznagar,
dated 08.05.2007.
Ex.B7: Property tax receipt issued by Municipality for the year 01.04.1993 to 31.03.1994, dated 20.08.1994.
Ex.B8: Property tax receipt issued by Municipality for the year 01.10.1992 to 31.03.1993, dated 27.08.1994.
Ex.B9: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.09.1990.
Ex.B10: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.10.1993.
Ex.B11: Land receipt issued by Sirpur Paper Mills Ltd.,
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dated 01.09.1997.
Ex.B12: Land receipt issued by Sirpur Paper Mills Ltd.,
Dated 01.03.1991.
Ex.B13: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.11.1984.
Ex.B14: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.12.1990.
Ex.B15: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.12.1989.
Ex.B16: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.08.2004.
Ex.B17: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.06.2004.
Ex.B18: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.11.2004.
Ex.B19: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.11.2005.
Ex.B20 : Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.04.2005.
Ex.B21: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.05.2004.
Ex.B22: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 19.01.2004 for the year 01.04.2002 to 31.08.2004.
Ex.B23: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 01.06.2005.
Ex.B24: Land receipt issued by Sirpur Paper Mills Ltd.,
dated 02.05.2005.
Ex.B25: Patta certificate, dated 11.04.2005.
SENIOR CIVIL JUDGE
ASIFABAD