1 OS No.98 of 2015
IN THE COURT OF PRL. JUNIOR CIVIL JUDGE
AT :: GODAVARIKHANI
PRESENT: SMT.M ARUNA
PRL. JUNIOR CIVIL JUDGE,
GODAVARIKHANI
Monday, 23rd day of April, 2018
O.S NO.98 of 2015
Between:
Kompelli Bheemamma W/o.late Rajaiah, Age 55 years, Occupation HouseholdR/o.H.No.6183/134,PrashanthiNagar, Godavarikhani, Ramagundam mandal, Karimnagar District … Plaintiff.
And
1]Mekala Lingaiah S/o.Komuraiah, Aged 45 years, Occupation Labour R/o.H.No.52150, Jangalapally H/o.Medipalli PM Shivar, Ramagundam mandal, Karimnagar District 2]Geetla Buchamma W/o.late Rajireddy Aged 60 years, occupation House hold, R/o.H.No.52155, Jangalapally H/o.Medipalli PM shivar, Ramagundam mandal, Karimnagar District
...Defendants.
Claim: Suit for declaration of title and recovery of possession
Plaint Under section 26 & Order 7 Rule 1 of CPC.
This suit is coming on 17.04.2018 for final hearing before me in the presence of Sri Patha Ashok Advocate for plaintiff, and that of Sri K Sudhakar Reddy, Advocate for the defendant No.1 and of Sri D Gopal reddy, Advocate for the defendant No.2 having been heard and stood over for consideration till this day, the court delivered the following :
:: J U D G M E N T ::
This suit is filed for declaration and recovery of possession of
Ac.003 guntas of land in Sy.No.223 of Jangalapalli H/o.Medipalli shivar & village of Ramagundam mandal.
2 OS No.98 of 2015 2 The brief averments of the plaint are as follows:
The plaintiff is the absolute owner and possessor of the land admeasuring 25 ½ guntas in Sy.No.223 of Jangalapalli
H/o.Medipalli shivar & village of Ramagundam mandal. The suit property situated beside Sindhura Engineering College, NTPC,
Jangalapalli Area. The plaintiff got the property from her late husband by name Kompally Rajaiah through the Virasath by the
Revenue authorities vide Lr.No.B/714/2010 dated 15.02.2011.
The plaintiff name is recorded as Pattadar and possessor of the property to an extent of 25 ½ guntas in Sy.No.223 of Medipalli shivar and the revenue authorities issued Pattadar passbook and title deed book to the plaintiff, but the defendants No.1 and 2 who are the adjacent land owners towards western side of the suit land and their property situated in Sy.No.222 of Medipalli shivar. The defendant No.1 is having land to an extent of 012 guntas and the defendant No.2 is having land to an extent of Ac.020 guntas in
Sy.No.222. The land was previously used for the purpose of agricultural and due to urbanization, the agricultural land converted into plots/residential lands, as such, the land become valuable. The defendants No.1 and 2 are began for construction of compound wall to their lands, at that time, the plaintiff measured his land through the help of private surveyor and found that the land of the plaintiff is having only 22 ½ guntas instead of 25 ½ guntas, so that the plaintiff land is less of Ac 003 guntas, later measured the lands of the defendants No.1 and 2, then found 3 OS No.98 of 2015 that the defendant No.1 is having land 13 ½ guntas instead of 12 guntas and the defendant No.2 is having land to an extent of 21 ½ guntas instead of 20 guntas, therefore, the defendants No.1 and 2 having each 1 ½ guntas excess land, so the excess of Ac.003 guntas is belongs to the plaintiff. The defendants No.1 and 2 are western side owners occupied the land of the plaintiff, hence, this plaintiff requested to return the excess land, but the defendants did not heed the words of the plaintiff, so that, the plaintiff requesting to pass decree for recovery of Ac.003 guntas from both defendants lands, as cause of action arose on 22.05.2015 when the land was measured and the defendants were illegally trespassed into the land of the plaintiff, therefore, the plaintiff is no other go except to file this suit, to get the decree from the Court.
3The defendants No.1 and 2 are filed written statement. The contents of the written statement of the defendant No.1 is that this defendant is having land of 13 ½ guntas but not 12 guntas as alleged by the plaintiff in Sy.No.222 and the plaintiff is having land in Sy.No.223 which is no way concerned to the land of this defendant. The plaintiff never measured the land of this defendant, therefore, there is no excess land found in the land of this defendant. This defendant acquired the said land from his forefathers and constructed house since long back, therefore, the illegal encroachment by this defendant does not arise and there are no reasonable grounds to recover land of the plaintiff from this 4 OS No.98 of 2015 defendant land as there is no excess land found in the land of the defendant and there is no cause of action to file this suit as this defendant never tried to construct the compound wall and the plaintiff never measured his land while constructing the compound wall and as there is no construction made by the defendant, therefore, there are no merits to allow this suit, hence, the suit is liable to be dismissed.
4The defendant No.2 also filed written statement by submitting that this defendant land is in Sy.No.222 and this defendant is not adjacent owner to the plaintiff’s land and in between land of the plaintiff and this defendant, there is land of the defendant No.1, therefore, the illegal encroachment of theland of the plaintiff, does not arose as the land of the defendant is faraway from the land of the plaintiff. The Survey number of the plaintiff and this defendant is totally different, therefore, the illegal encroachment of 1 ½ guntas of the plaintiff does not arise and there is a road towards Northern side of the land of the plaintiff and while laying the road, the Government authorities acquired the land of the plaintiff to raise the CC roads and also the plaintiff sold some portion of land from her land to some others, they constructed the house and residing therein, therefore, the plaintiff by suppressing the real facts filed this suit to grab the land of this defendant, hence, the suit is not maintainable as there is no cause of action, hence, liable to be dismissed.
5 OS No.98 of 2015 5 Basing on the pleadings and material available on record, this Court framed the following issues.
6. Issues
1)Whether the plaintiff is entitled for Declaration of title against the defendants in respect of suit schedule property as prayed for?. 2).Whether the plaintiff is entitled for Mandatory injunction for land admeasuring an area 25 ½ guntas in Sy.No.223 and for recovery of possession as prayed for?. 3). To what relief.
7. To prove the case of the plaintiff, the plaintiff examined himself as PW1 and also examined one Mekala Gattaiah as PW2 and got marked Ex.A1 to Ex.A4. Ex.A1 is the Pattadar Passbook issued by the Revenue authorities. Ex.A2 is the Title deed book issued by the Revenue authorities. Ex.A3 is the Original Adangal pahani. Ex.A4 is the Encumbrance certificaten to support her case. On behalf of the defendants, the defendant No.1 is examined as DW1, but no document has been marked and the defendant
No.2 is examined as DW1 and also examined Barigala Swamy as
DW3 to support his case but no documents has been marked.
Issue No.1 & 2 :
1] “ Whether the plaintiff is entitled for Declaration of title against the defendants in respect of suit schedule property as prayed for?.
2] Whether the plaintiff is entitled for Mandatory injunction for land admeasuring an area 25 ½ guntas in Sy.No.223 and for recovery of possession as prayed for?.
8The contention of the plaintiff is that she acquired the property from her late husband who purchased the said property, and after his death, it is mutated on her name in the year of 2011 6 OS No.98 of 2015 and after that the Revenue authorities issued Pattadar Passbook and Title deeds and also entered her name in pahanies as the owner and possessor of 25 ½ guntas in Sy.No.223 of Medipalli shivar of Ramagundam mandal, since then, the plaintiff is in possession and enjoyment of the property, but the defendants who are the owners of the property in Sy.No.222 which is adjacent to property of plaintiff i.e.,Sy.No.223, they occupied illegally to an extent of Ac.003 guntas of plaintiff’s land, so that, the plaintiff contending that the both defendants are having excess Ac.1 ½ guntas each which is belongs to the plaintiff as the plaintiff is having 22 ½ guntas instead of 25 ½ guntas in Sy.No.223 of
Medipally shivar, so that, the plaintiff is requesting to pass a decree for recovery of possession and also further submitting that the defendant denying her title so requesting to pass decree for declaration.
9On the other hand, the defendant No.1 counsel contending that the Survey number of the plaintiff is 223 and the
Survey number of this defendant is 222 and this plaintiff is having total extent of 13 ½ guntas, but the plaintiff himself reporting that this plaintiff is having only 12 guntas of land, but in fact, this defendant is having 13 ½ guntas which is acquired from his forefather, so that this defendant is having 13 ½ guntas land and since long back, this defendant constructed houses, therefore, there is no excess of land as alleged by the plaintiff, hence, this suit is liable to be dismissed.
7 OS No.98 of 2015 10The contention of the defendant No.2 is that this defendant is having land in Sy.No.222 and in between the property of the plaintiff and this defendant,there is a property of defendant
No.1, therefore there is no question of illegal encroachment as alleged by the plaintiff and moreover, the plaintiff do not have any cause of action as this defendant never tried to construct the compound wall, so that the question of measuring of land by the plaintiff does not arise, so that, the cause of action is created one, hence, without cause of action, this suit is filed, therefore, requesting to dismiss the suit with costs.
11As per discussion above, to prove the title, the burden lies on the plaintiff that she is the owner and possessor of the property to an extent of 25 ½ guntas in Sy.No.223 of Medipalli shivar of
Ramagundam mandal. At the same time, she has to prove how she acquired the property and what was the right to her vendor or the person from whom she acquired the property and had title to succeed the same. Therefore, to prove the title of the plaintiff, the plaintiff relied on Ex.A1 to Ex.A4 and submitted that she acquired the property from her late husband Kompelly Rajaiah through “Virasath” and after that the revenue authorities issued
Ex.A1 and Ex.A2 Passbook and Title deeds to her. As per Ex.A1 it is pattadar passbook, the name of the plaintiff is mentioned as
Kompelly Bheemamma and having the property to an extent of 25 ½ guntas in Sy.No.223 which is issued in the year of 2013, 8 OS No.98 of 2015 therefore, as per this document, the plaintiff is the owner and possessor of the property to an extent of 25 ½ guntas in Sy.No.223 and the said property acquired by way of Virasath. Ex.A2 is the title deed, in which the name of the plaintiff is mentioned to an extent of 25 ½ guntas in Sy.No.223 which is issued in the year of 2013. Therefore, as per Ex.A1 and Ex.A2, the plaintiff acquired the property from her late husband by way of Virasath proceeding
dated 15.02.2011, but at the same time, it is the duty of the
plaintiff to establish that what title her husband had, whether her husband purchased the property under the registered sale deed or
Sadabayanama or any other mode, so that, to prove her husband’s tile and to get property by way of Virasath, the plaintiff has to file any document or evidence of her late husband, but in this case, the plaintiff simply stated that her husband purchased the property and after his death, she succeeded the property by way of
Virasath, but, in this case, the plaintiff nowhere mentioned that when her husband purchased the property and from whom, her husband purchased the property and when he died, whether the property purchased under Sadabayanama or registered sale deed and what was the total extent of the property purchased by her husband, is nowhere mentioned, why because, the plaintiff is seeking the relief of recovery of possession and declaration, so that it is a comprehensive suit, so to prove the same, the plaintiff has to place true and clear evidence before this Court, but, in this case, the plaintiff except making of bold statement that her husband 9 OS No.98 of 2015 purchased the property, later, she succeeded by way of Virasath after his death, and later the Revenue authorities issued Ex.A1 and Ex.A2 to her, except this statement, how she got title and what was the title of her husband had and when her husband died, who are the legal heirs to succeed the property, nowhere mentioned and no evidence produced, therefore, with regard to the title of her late husband is doubtful as there is no clarity.
12The further contention of the plaintiff is that in the year of 2015 while the defendants constructing the compound wall to their properties, then, she measured her land and found that her land was less of Ac003 guntas and later, she measured the land of the defendants No.1 and 2, then found that the defendants are having excess land of each 1 ½ gunta, therefore, Ac.003 guntas of excess land, is belongs to her, but to prove the same, that the defendants constructed the compound wall to their properties and while they constructing the compound wall, she measured her land. To this effect, there is no evidence filed by the plaintiff either oral or documentary, atleast she would have to file photographs to show that on the date of construction by the defendants, she measured the land and found Ac.003 guntas excess, in the land of the defendants No.1 and 2, why because, both the defendants are denying the cause of action and further contending that the plaintiff is only under the impression that these defendants may got excess land of Ac.003 guntas which is belongs to her, but the 10 OS No.98 of 2015 plaintiff did not file any piece of evidence to prove the same and also the alleged Private Surveyor also not examined. However, the plaintiff is examined as PW1. In her cross examination she stated that her land is situated in Sy.No.223 and the land of the both defendants are situated in Sy.No.222 and in cross examination by the defendants counsel, she stated that her husband purchased the property to an extent of Ac.032 guntas from one Durugam
Induru from which, she sold Ac.007 ½ guntas to Erukali Poshu and Erukali Illaiah and the remaining property is with her and she further deposed that Ac.001 gunta land from 25 ½ guntas is given to one Chinthala Posham and Chukkamma, and they constructed house and living in that house, but except in her cross examination, the plaintiff did not state the same either in her plaint or in her chief affidavit that her husband purchased the property to an extent of Ac.032 guntas from which Ac.007 ½ guntas sold to Erukali Poshu and Erukali Illaiah and Ac.001 guntas given to Chinthala Posham and Chukkamma, therefore the plaintiff suppressed the said facts before this Court and further
PW1 deposed that “on what extent the said Chinthala Posham and Chukkamma constructed the house she do not know”, therefore, the plaintiff do not have any clarity with regard to her property why because, the plaintiff in her plaint, she submitted that she is having 25 ½ guntas of land which is acquired from her late husband, but, whereas, in crossexamination she submitted that her husband purchased 35 ½ guntas from which she sold 11 OS No.98 of 2015 7 ½ guntas to Erukali Poshu and Erukali Illaiah and 001 guntas to Chinthala Posham and Chukkamma and she do not know on what extent, the Chinthala Posham and Chukkamma constructed the house, therefore, as per these two contrary statements, the plaintiff is not having knowledge about her property, hence, this court feels that the plaintiff do not have any clarity with regard to her property.
13The further contention of the defendants is that the defendants are in possession and enjoyment of their respective properties since long time, which is acquired from their forefathers and the plaintiff intends to grab the property of this defendant as the soninlaw of this defendant is working in Revenue Department as VRO, so that due to influence, she intends to grab the property of this defendants. However, in crossexamination of PW1, she categorically stated that at about 20 years back, the defendants constructed the houses and the defendants are owners of different survey number i.e.,222, therefore, when the defendants are the owners of different survey number, how the plaintiff is claiming the property of the defendants, even though, if we consider that the defendant No.1 is adjacent owner to the property of the plaintiff, but first of all, the plaintiff has to measure the total extent in
Sy.No.223, but without measuring the entire property in Sy.No.223 in which the plaintiff is claiming the property, why measured the land in different Survey number i.e.,222, why because, it is an admitted fact that one Sindhura Engineering College constructed 12 OS No.98 of 2015 in Sy.No.223, in which the plaintiff claiming the property so the plaintiff has to measure the entire property in Sy.No.223, but without measuring her survey number why the plaintiff measured the property of these defendants which is different survey number and moreover, there are several persons in possession of
Sy.No.223 and also in Sy.No.222, as per Ex.A3 and Ex.A4, so without measuring entire property in those survey number why the plaintiff specifically measured the land of defendants only why because, as per Ex.A3 pahanies in Sy.No.223 is having 316 guntas and there are several owners and possessors name, reflecting in that pahany so the plaintiff has to measure the entire land in Sy.No.223 first of all, and moreover Sy.No.222 is having total extent of 1206 guntas, as per pahani marked as Ex.A3 and there are several owners and possessors in that Survey number also, but without measuring the entire property either in
Sy.No.222 or Sy.No.223 why the plaintiff measured the land of the defendants No.1 and 2 only, therefore, the plaintiff would have to survey the entire property of Sy.No.223 in which, she is claiming, but, without measuring the entire property of Sy.No.223, how she can claim the property of defendants in Sy.No.222, therefore, as per Ex.A3 and Ex.A4 pahanies belongs to Sy.No.222 and
Sy.No.223, both survey numbers having huge properties and without measuring entire property, it is impossible to show that the both defendants having property of 1 ½ guntas each which is in Sy.No.223 and moreover, the plaintiff herself admitted in cross 13 OS No.98 of 2015 examination that she gave the property to an extent of Ac.001 gunta to Chinthala Posham and Chukkamma, in which they constructed the house, but stated that she do not know, on what extent, they constructed house, therefore, out of 25 ½ guntas, if she gave 001 gunta to Chinthala Posham and Chukkamma , how she is claiming 25 ½ guntas again without disclosing the same why because, the said fact also not disclosed before this
Court either in her plaint or in her chief examination affidavit.
14The further contention of the defendants is that the
Sy.No.222 and 223, both survey numbers are agricultural lands now converted into house cites and laid roads by the Government, and one road is in existence, at Northern side o the plaintiff and the defendants, therefore, they contending that while laying
CC roads by the Government, they acquired the land of the plaintiff, but, the plaintiff failed to explain this fact to this Court, hence, the defendants requesting to dismiss the suit. However, as per plan map attached by the plaintiff to the plaint, it is clear that there is a road on Northern side to her property and also there is
Sindhura College at Southern side in Sy.No.223, but the plaintiff without measuring the land of Sindhura College, how she measured the Westerns side of defendants properties in Sy.No.222 and moreover the plaintiff admitted that the agricultural land become converted into residential plots and as per plan map, there is a CC road at Northern side of the plaintiff. Further the CC road is in the land of the plaintiff in Sy.No.223 or in any other survey 14 OS No.98 of 2015 number, is to be explained by the plaintiff to this Court why because the plaintiff is claiming the relief of declaration and recovery of possession, so, she has to place all the material facts
before this Court, but in this case, the plaintiff mere making of
allegations, nothing was elicited.
15The further contention of the defendant No.2 is that his property is faraway from the property of the plaintiff and the property of this defendant is in Sy.No.222 and in between the property of the plaintiff and the defendant No.2, there is a property of the defendant No.1, therefore, the defendant No.2 submitted that there is no possibility to encroach the property of the plaintiff as alleged by the plaintiff. It is also admitted by the plaintiff that the defendant No.2 property is in Sy.No.222 and he is not immediate neighoubr to her, therefore, when the defendant No.2 is not immediate neighbor to her, how he can encroach the suit property of the plaintiff.
16Therefore, as per the evidence of PW1, the she is the owner to an extent of 25 ½ guntas in Sy.No.223 in which she is claiming, but the defendants are the owners and possessors in Sy.No.222 and PW1 further stated in her crossexamination that defendants constructed their house at about 20 years back, then, how the plaintiff is kept silent all these years and why she filed this suit in the year of 2015. If the plaintiff is really having less land why she did not make any effort to measure the entire land in her surey number, why because, the defendants acquired the property since 15 OS No.98 of 2015 from their forefather but whereas the plaintiff acquired the property from her late husband by way of Virasath in the year of 2011. As per this version the defendants are constructed the house and residing in that property prior to the possession of the plaintiff. Therefore, the plaintiff also failed to take any step immediately after purchasing the property. Therefore, as per discussion above, the plaintiff failed to establish that the defendants encroached 1 ½ guntas each, total Ac.003 guntas from her property in Sy.No.223, therefore, when the plaintiff herself failed to prove the alleged encroachment made by the defendants, then she is not entitled to recovery the property, but, the plaintiff contending that the defendants did not file any single document to show that they are owners and possessors of the property to an extent of 32 ½ guntas and 20 guntas respectively, but the plaintiff herself admitted the possession and extent of property, then how the plaintiff again dispute the property and moreover, the plaintiff filed the suit for recovery of possession and ownership of the defendants 12 guntas and 20 guntas respectively, then again, no need to take that plea of filing of documents of defendants and moreover as per Evidence Act, admitted facts need not be proved, in this suit the dispute is with regard to the excess of the property only which is alleged to be occupied by the defendants, so to prove the same, the burden lies on the plaintiff, but, the alleged encroachment not proved by the plaintiff, so the plaintiff is not entitled for recovery of possession of the suit property i.e.,Ac.003 16 OS No.98 of 2015 guntas from the defendants and when the plaintiff failed to prove the encroachment of the suit property, then the relief of mandatory injunction and also for declaration to an extent of 25 ½ guntas in Sy.No.223 does not arise, therefore, she is not entitled for any relief.
17But whereas the defendant No.1 himself examined as DW1 and the defendant no.2 is examined as DW2 and also examined
DW3. As per their evidence, DW1 contending that he is the owner of 13 ½ gunta and he is acquired the said property from his forefather, but the plaintiff given a suggestion that they encroached the property of the plaintiff. To prove the same, the plaintiff did not file any document or evidence and the defendant
No.2 also examined as DW2. DW2 also stated that she is noway related to the land of the plaintiff, because, the defendant No.2 is not the immediate neighbor or owners to the plaintiff property so that she denied the alleged encroachment of the plaintiff.
18DW3 also stated that defendant never encroached into land of the plaintiff, further, submitted that it is a case of the plaintiff, so the total burden lies on the plaintiff to prove these two issues, but the plaintiff failed to prove these issues, hence,the defendants are requesting to dismiss the suit. However, it is true that the plaintiff herself failed to prove those issues, then, there is no need to go for defendants evidence and the Commissioner appointed by this Court as per IA No.32 of 2016 with the assistance of Local 17 OS No.98 of 2015
Surveyor and he filed report. As per Commissioner report, the
Defendant No.1 is having Ac.013 guntas of land and the defendant No.2 is having Ac.022 guntas of land in Sy.No.223, but the defendant No.1 counsel contending that the Defendant No.1 is having Ac.013 ½ guntas, and ½ guntas of land occupied by the
Government while laying the roads, therefore, the defendant No.1 counsel contending that the defendant NO.1 having total Ac.013 ½ guntas of land, so there is no encroachment made by the defendants.
19The defendant No.2 counsel contending that this defendant is having Ac.023 guntas in which, Ac.003 guntas land is given to
Barigala Swamy which is in his possession so the defendant No.2 is having 20 guntas, after giving 3 guntas to Barigala Swamy, therefore, the defendant No.2 contending that if the land of 003 gunta of Barigala Swamy includes the defendant No.2 having
Ac.023 guntas and when it is leaves, the defendant is having
Ac.020 guntas and he is the owner and possessor of the land, therefore, as per report of the Commissioner, the said Barigala
Swamy house is in the property of this defendant, but it is not excluded, therefore, the commissioner report is not at all supporting the plaintiff claim, but supporting the version of the defendants. therefore, the plaintiff herself failed to establish the case, so, there are no merits, hence, these issues are answered against the plaintiffs.
18 OS No.98 of 2015 20 Issue No.3 “ What Relief”
As per discussion at Issue No.1 and 2, the plaintiff is failed to prove her case,hence, the suit is liable to be dismissed.
In the result, the suit is dismissed. No costs.
Dictated to the Typist, transcribed by him, corrected and pronounced
by me in the Open court on this the 23rd day of April, 2018.
Prl. Junior Civil Judge Godavarikhani
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF: FOR DEFENDANTS : Nil
PW1 : Kompelli Bheemamma DW1: Mekala Lingalaiah PW2: Mekala Gattaiah DW2: Geetla Buchamma DW3: Barigala Swamy
EXHIBITS MARKED
FOR PLAINTIFF:
Ex.A1Is the Pattadar Passbook issued by the Revenue Authorities in respect of land an area 25 ½ guntas in Sy.No.223 of Medipalli shivar & village of Ramagundam mandal in the name of plaintiff
Ex.A2Is the Title Deed book issued by the Revenue Authorities in respect of land an area 25 ½ guntas in Sy.No.223 of Medipalli shivar & village of Ramagundam mandal in the name of plaintiff
Ex.A3Is the Original Adangal Pahani computer generated obtained through Meeseva (2)
Ex.A4Is the Encumbrance Certificate
FOR DEFENDANTS: Nil.
Prl. Junior Civil Judge Godavarikhani