Sri M.Babu

1 OS.NO.79/2010 Dt.03.04.2024

IN THE COURT OF THE SENIOR CIVIL JUDGE, RAJAM

PRESENT: Sri M. BABU,

Senior Civil Judge,

Rajam.

Wednesday, this the 3rd day of April, 2024.

O.S.No.79/2010

BETWEEN:

1.Pasumarthi Rambabu, S/o Appalaraju, aged 52 years, Hindu, Business, resident of Rajam Town and Mandal, Srikakulam District, now resident of Parvathipuram town and Mandal, Vijayanagaram District.

2.Grandhi Rajamani, W/o late Mrutyamjayarao, aged 55 years, Hindu, Housewife, resident of Santhinagara, Rajam town and Mandal, Srikakulam District. … Plaintiff(s) AND:

1.Samanthula Sangamnaidu, S/o late Chinnappadu, aged 65 years, Hindu, Cultivation, resident of Rajayyapeta village, Rajam Mandal, Srikakulam District.

2.Samantula Satyamnaidu, S/o late Chinnappadu, aged 40 years, Hindu, Cultivation, resident of Rajayyapeta village, Rajam Mandal, Srikakulam District.

3.Samantula Ramu, S/o late Chinnappadu, aged 35 years, Hindu, Cultivation, resident of Rajayyapeta village, Rajam Mandal, Srikakulam District.

4.Kotla Lakshmanarao (died), S/o late Krishnarao, aged 65 years, Hindu, Business, resident of Segidi Street, Rajam town and Mandal, Srikakulam District.

5.Asapu Veerabradhrarao (died), S/o late Apparao, aged 60 years, Hindu, Managing Partner of Sree Venkataratnam Traders, resident of Kalepu Street, Rajam town and Mandal, Srikakulam District.

6.Malipeddi Eswaramma, W/o Manmadharao,aged 35 years, Hindu, Employee, resident of Door No.92, Indiranagar colony, Palakonda town and Mandal, Srikakuam District.

7.Seemakurthi Satyanandarao, S/o late Appalanarasimhulu, aged 65 years, Hindu, Business, resident of Cheepurpalli road, Rajam town and Mandal, Srikakulam District.

8.Asapu Hemalatha, W/o late Veerabadhrarao, aged 58 years, Hindu, Housewife, resident of Mallikarjuna colony, Rajam town and Mandal, Srikakulam District.

2 OS.NO.79/2010 Dt.03.04.2024

9.Asapu Ramesh, S/o late Veerabadhrarao, aged 45 years, Hindu, Business, resident of Mallikarjuna colony, Rajam town and Mandal, Srikakualm District (died)

10.Konapala Aruna, W/o Lakshmanarao, D/o Veerabadhrarao, aged 35 years, Hindu Housewife, resident of Mallikarjuna colony, Rajam town and Mandal, Srikakuam District.

11.Konapala Uma, W/o Ravi Kumar, D/o late Veerabadhrarao, aged 30 years, Hindu, Housewife, resident of Mallikarjuna colony, Rajam town and mandal, Srikakualm District.

12.Asapu Bhagyalakshmi, W/o late Ramesh, aged 35 years, Hindu, Housewife, resident of Mallikarjuna colony, 3rd line, Rajam town and Mandal, Srikakulam District.

13.Asapu Bhagyalakshmi, W/o late Ramesh, aged 35 years, Hindu, Housewife, resident of Mallikarjuna colony, 3rd line, Rajam town and Mandal, Srikakulam District.

14.Asapu Siri, D/o late Ramesh, aged 16 years, Hindu Minor, resident of Mallikarjuna colony, 3rd line, Rajam town and Mandal, Srikakulam District.

15.Kotla Kishore, S/o late Lakshmanarao, aged 25 years, Hindu, Business, Segidi street, Rajam town and Mandal, Srikakulam District.

16.Kotla Sai, S/o late Lakshmanarao, aged 20 years, Hindu Business resident of Segidi street, Rajam town and Mandal, Srikakulam District.

(7th defendant is impleaded as a necessary party as per order in I.A.No.235/2014 dated 16.09.2015) (The defendants 8 to 11 are added as LRs of the deceased 5th defendant as per the order in I.A.No.393/2012 dated 06.02.2017) (The defendants 12 to 14 are added as LRs of the deceased 9th defendant as per order in I.A.No.615/2017 dated 28.01.2019) (The 14th defendant is being minor represented by her mother natural guardian 12th defendant Asapu Bhagyalakshmi as per the order in I.A.No.633/2017 dated 28.01.2019) (The defendants 15 and 16 are added as LRs of the deceased 4th defendant as per the order in I.A.No.67/2020 dated 17.01.2022) … Defendant(s)

The suit is coming on 28.03.2024 for final hearing before me in the presence of Sri I.Sreeramulu Naidu, Ld. Counsel for plaintiff(s) and of Sri. M.Damodararao, Ld. Counsel for defendants No.1 to 3 and D4 died, D5 and D9 died, Lrs are added, remained ex-parte and Sri Jayadev, Ld. Counsel for 6th defendant and Sri Y.Satya Srinivas and Sri Y.Ramesh, Ld. Counsels for 7th defendant and 8th defendant and upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:

3 OS.NO.79/2010 Dt.03.04.2024

J U D G M E N T

This is a suit filed by the plaintiffs against the defendants for declaration of the title that the plaintiffs are the absolute owners of the plaint schedule land and for recovery of possession of the plaint schedule land after due eviction of the defendants therefrom; for consequential relief of permanent injunction restraining the defendants from alienating the plaint schedule land to the third parties for ever in any manner what so ever and for costs of the suit.

2. The brief averments of the Plaint are that:

The first plaintiff is the absolute owner of the plaint schedule dry land. The first plaintiff purchased the plaint schedule land referred as item No.3 in 3rd para of the schedule of the sale deed

dated 17.06.1998 from Bevara Chinnammi w/o Dalappadu for a valid

consideration of Rs.1,60,000/- including the item No.1 and 2. The vendor of the first plaintiff got the property form Samanthula

Appalaswamy and others by means of a registered sale deed dated 29.04.1966. Ever since, the execution of the aforesaid registered sale deed the first plaintiff is in legal possession and enjoyment of the plaint schedule land with absolute rights. The first plaintiff executed a registered settlement deed dated 08.02.2005 in favour of the 2nd plaintiff who is the sister of the first plaintiff out of love and affection part of the plaint schedule land with an extent of Ac.0.67 ½ cents in

Sy.No.53/2 of Rajayyapeta village. The plaintiff have got right, title and possession over the plaint schedule land.

The defendants 1 to 3 absolutely have no right or title or possession over the plaint schedule land. The first defendant has no 4 OS.NO.79/2010 Dt.03.04.2024 lands in Sy.No.53-2 as he has already sold away lands in Sy.No.53-2 fell to his share to Gundabala Satyavathamma, W/o Nageswararao and

Gundabala Sudharsanarao and executed a registered sale deed in their favour on 04.11.1966. So, the first defendant absolutely has no right or title over the plaint schedule land at any time. In order to grab the plaint schedule land the first defendant influenced the revenue officials and got fabricated a pattadar pass book and title deed book for an extent of Ac.1.37 cents in Sy.No.53-2 of Gopalapuram which is absolutely belongs to the plaintiffs. The pattadar pass book and title deed book alleged to be obtained by the first defendant does not confirm any right, title over the plaint schedule land and those records are not binding on the plaintiffs. The plaintiffs are came to know that the defendants 1 to 3 are created some nominal documents i.e

General power of attorney with sale agreement in favour of the defendants 4 adn5 and a sale deed in favour of 6th defendant. The

Defendants 4 to 6 cannot acquired any right or title over the plaint schedule land and it is absolutely belongs to the plaintiffs. The first defendant himself has no right, title over the plaint schedule land. The plaintiffs are absolute owners of the plaint schedule land. Hence, the suit.

3. The first defendant filed written statement and also the contents of the same adopted by the 2nd and 3rd defendants by denying all the material allegations mentioned in the plaint and alleged that the plaintiffs valued the suit for declaration and possession under section 34(2) of APCF and SV Act, 1956. It is submitted that section 34(2) of

APCF and SV Act, 1956, relates to court fee to be paid in a suit for 5 OS.NO.79/2010 Dt.03.04.2024 partition and separate possession of joint family property or property owned jointly or in common by a plaintiff who is in joint possession of such property at the rates shown there under; but, the present suit is not a partition suit but a suit for declaration of title and possession valuation of the suit is to be calculated under section 24® of APCF and SV Act, 1956. It is submitted that under section 24(1) of APCF and

SV Act for declaration of title and possession of immovable property the court fee to be paid is three fourth of market value and not half of the market value as calculated in the plaint, so court fee on an amount of Rs.5,34,000x ¾ = Rs.16,02,000/4th = Rs.4,00,500/- has to be calculated and not on 2.37.000 as calculated by the plaintiff in the plaint. so, instead of paying Court fees worth of Rs. 6.431/- the plaintiffs paid Rs 4,926/- only. So, the plaintiffs must pay balance court fee of Rs. 6,431 - Rs. 4,826 = Rs. 1.605/- only. It is further submitted that the plaintiffs did not pay any court fee on the consequential relief of injunction. There can be no consequential relief of permanent injunction, unless declaration of title of immovable property is sought for. Under Section 24(b) of the Act, the plaintiffs have to pay court fee on one half of the market value of the property which come to Rs. 5,126/-. Thus in all, the plaintiffs have to pay court fee of Ra. 6,431/- + Rs. 5,126/- = Rs. 11,557/-, but, instead he paid

Rs. 4,826/- only. So, the plaintiffs have to pay another court fee worth of Rs.6,731/-. It is therefore, submitted to the Honourable Court that the Honourable Court may be pleased to direct the plaintiffs to deposit an amount of Rs. 6,731/- towards deficiency in court fees, invoking its power under Section 11 (2) of A.P.C.F & S.V.Act, 1956, and reject the plaint under Order 7 Rule 11 C-P.C r/w Section 11 of A.P. Court Fees 6 OS.NO.79/2010 Dt.03.04.2024 and suits valuation Act, 1956 if the plaintiffs do not comply with the order of the court for depositing the deficit court fee of Rs.6,731/-.

The plaintiffs are not entitled to a decree as prayed for in Para VI of the plaint and it is fit to be dismissed with costs, as there can be no consequential relief of injunction without the main prayer of declaration as prayed for by the plaintiffs and also without seeking for cancelation of the registered sale deeds in favour of D4 to D6 executed by D1 to D3 admittedly and also for cancellation of pattadar pass took and title deed issued by Revenue Officials in favour of 1st defendant under section of A.P.Rights in Land and Pattadar Pass books Act, 1972.

It is submitted that one Samanthula Chinna Appadu had three sons, by names (1) Ramanna Appadu (2) Sanyasi Naidu and (3)

Sangam Naidu. This Sangam Naidu is the 1st defendant herein and defendants 2 and 3 are the sons of Sangam Naidu (D1). Samanthula

Chinna Appadu had vast ancestral properties, of which the land covered by S.No.53/2, extending to Ac.4.00 cants, is one. After his demise, the aforesaid three sons of late Samanthula Chinna Appadu partitioned the ancestral properties including the land covered by

S.No. 53/2 and so, each one of them got Ac. 1.33 1/3 cents, in S.No.

53/2, besides other properties. Thus, the first defendant got Ac.1.33 1/3 cents to his share in S.No. 53/2 of suit village and he has been in continuous possession of the same. The land of the 1st defendant is in between the lands of the other two shares the share of Ramanna

Appadu being towards North and the share of Sanyasi Naidu being towards south of the one acre and thirty three cents of Sangam Naidu, 7 OS.NO.79/2010 Dt.03.04.2024 the 1st defendant herein. The other two shares sold their land ie. two acres sixty seven cents in 5.No. 53/2 out of total extent of four acres in

S.No. 53/2 to the plaintiffs and third parties. The other two shares gave Ac.0.90 cents each to the first defendant under partition deed and first defendant sold the said land of Ac.1.80 cents in S.NO.53/2 to

G.Satyam, Rajeswararao and Sudarsanarao. He did not sell anything of his share except the sales in favour of D4 to D6. While so the D1 and his two sons i.e D1 to D3 sold away an extent of Ac.12.9 cents i.e 624 square yards in S.No.53/2 under registered sale deed dated 15.05.2010 to the 5th defendant; 486.115 Sq. Yards ie. 10.04 cents under a registered sale deed dt.15.5.2010 in S.No.53/2 to the 4th defendant and Ac.0.28 cents in. 138.88 sq. Yards under registered sale deed dated 15.5.2010 to the 6th defendant and put them in physical possession of the same immediately.

It appears that the 1st plaintiff might have purchased some extent of land in S.No.53/2 from out of the other two shares. The 1st plaintiff requested the 1st defendant to sell away the land belonging to the 1st defendant in S.No.53/2 to him at a low price, so, the 1st defendant did not agree, So, the 1st plaintiff invented a story and filed the above suit with all false things. It is clear from the documents filed by the plaintiffs that there can be no circumstance of trespass by the defendants. The sale deed filed along with the plaint said to have been executed by Samanthula Ramannappadu, S/o Late Chinnappadu in favour of Bevara Chinnammi W/o Dali Naidu on 19.4.1966 is for an extent of Ac.0.93 cents only in patta No.2619; and the document number is 2486 of 1966. This sale deed does not contain any survey 8 OS.NO.79/2010 Dt.03.04.2024 number. The plaintiffs filed another sale deed dated 17.7.1998 executed by Bevara Chinnammi, w/o Dalappadu but not Dali Naidu, in favour of 1st plaintiff in which it was recited that the said Bevara

Chinnammi, W/o Dalappadu got the lands covered by the said sale deed under a document No.1720 of 1969 but not under document No.

2486 dated 19.11.1966 by way of purchase from Ssamantula Appala

Swamy etc., So, it is clear from these two sale deed that Bevara

Chinnammi w/o Dali Naidu purchased a land covered by patta No.

2619 without any mention of survey No. and another woman by name

Bevara Chinnammi w/o Dalappadu sold three fields covered by Patta

No.1720 to the 1st plaintiff. So, it clear that these two instruments do not refer to identically the same land and also identically by same executant. Even assuming for a moment that the executant in the same woman in the two sale deeds, in the 1st sale deed the extent of land in Patta No. 2619 was shown as Ac.0.93 cents whereas in the second sale deed, the extant is shown as Ac.1.33 ½ cents in patta no.

1720. Again, in the 1st sale deed, the southern boundary owner is shown as Samanthula Sangam Naidu, the 1st defendant, whereas, in the second sale deed, the owner of southern boundary land is not

Samanthula Sangan Naidu but one Grandhi Venkataraju. so, it is crystal clear that the same land, which was purchased by Bevara

Chinnanmi was not at all sold by her to the 1st plaintiff, so, the plaintiff himself is not at all sure of the identity of the suit land and so it is a myth for him to alleged that the defendant trespassed into the plaint schedule land and are trying to alienate the plaint schedule to third parties. It in pertinent to note that it is no where mentioned that the defendants have possession of the plaint schedule property.

9 OS.NO.79/2010 Dt.03.04.2024

Lawfully or unlawfully, so that the plaintiffs can pray the court for possession after evicting of the defendant from the suit land further the plaint does not disclose anywhere that the defendants denied the title of the plaintiffs and claimed title in themselves and possession with them. So, that the plaintiffs can seek for declaration of their title to suit land from the defendants after physically evicting the defendants. So there is no cause of action at all for the plaintiffs to file the above suit for declaration of their title to plaint schedule land and for possession of the same, after rejecting the defendants from the plaint schedule land. So the plaintiff have no case at all, let apart a prima facie case to show that they are having any glimpse of title to the plaint schedule land.

The defendants 1 to 3 are the absolute owners to the plaint schedule property and so they sold the plaint schedule property under three different registered sale deeds to defendants 4,5 and 6 as stated supra and gave then physical possession of the same. The D1 obtained encumbrance certificate for the plaint schedule land, which clearly shows, as on 14.05.2010 that there are no encumbrances. The D1 to

D3 have been paying cist to the government and obtained land revenue receipts from the revenue officials. On an earlier occasion one

Koncharlapaati Satyavathi filed a suit O.S.No.86/2007 on the file of

Junior Civil Judge Court, Rajam for declaration of her title and for possession in respect of some other bit of land covered by S.NO.53/2 against the D1 and it was compromised in Lok Adalat on 19.07.2008 and a certified copy of the same is being filed along with the plaint schedule in O.S.No.86/2007 on the file of JCJ Court, Rajam, which 10 OS.NO.79/2010 Dt.03.04.2024 clearly shows that the suit land was there in existence by 19.07.2008 in as much as the present suit land and the land referred in the award passed by the Lok Adalat belong to the same S.No.53/2 and the 30 feet wide joint Rasta was referred to as northern boundary of the award of

Lok Adalat which is also the southern boundary of the present plaint schedule.

The first defendant was given title deed and pattadar pass book in respect of his lands including the present suit land. So it is crystal clear that the D1 is the owner having possession of the sati land and the plaintiffs have nothing to do with the plaint schedule land. So, the plaintiffs have to filed a suit for cancellation of pattadar pass book and title deed in favour of D1 under section 8 of ROR Act and till then, the Pattadar pass book and Title deed in favour of D1 binds the plaintiffs and hence an injunction cannot be granted against

D1 to D6 and in favour of the plaintiffs.

Under Hindu Law, a Hindu has no right to make a gift of his property without concurrence of the other coparceners. The first plaintiff has sons and daughters, who constitute the coparcenary and as such the first plaintiff has no right to make a gift of his coparcenary property to his sister and hence, the so called gift deed said to have been made by the first plaintiff in favour of the second plaintiff is ab initio void. To add to this there is no acceptance by 2nd plaintiff of the said gift alleged to have been made by first plaintiff.

The registered sale deeds executed by D1 to D3 in favour of

D4 to D6 under three different instruments are absolutely valid and 11 OS.NO.79/2010 Dt.03.04.2024 binding on the plaintiffs. The D1 top D3 filed encumbrance certificate, which clearly show that the D4 is the absolute owner for Ac.1.33 ½ cents in S.No.53/2. The D1 to D3 file award passed by Lok Adalat in case No.154/2008 which clearly shows that the D1 has land in

S.No.53/2 by the year 2008. The D1files Pattadar pass book No.12377 to show his possession for Ac.1.37 cents of land in S.No.53/2 besides other lands in the suit village and the title deed is mortgaged with

Andhra Bank, Rajam so, this document clearly establishes in unequivocal terms that the D1 has been in settled possession of

Ac.1.37 cents in S.No.53/2 of suit village, containing the suit land as part of it.

The first defendant herewith files 7 cist receipts relating to the suit land, which are issued by revenue authorities in his name.

These documents clearly establish possession and title of Ac.1.37 cents of land in S.No.53/2 by the first defendant. The plaintiffs are not entitled to declaration and possession of the suit lands. The plaintiffs have no right to pay for the issue of an injunction against the defendants restraining them form ever alienating the same in any manner they like to third parties, as it is their absolute right to do so as owner of the plaint schedule property and prayed to dismiss the suit with costs.

4. The 4th defendant filed written statement and the contents of it were almost same contents of the first defendant and further submitted that he obtained encumbrance certificate on 16.10.2010 which clearly shows that there are no transactions relating to suit land except his transaction only. This defendant made enquires also about 12 OS.NO.79/2010 Dt.03.04.2024 the title of the suit land and then only he purchased the suit land. So, at any rate he is a bonafied purchaser for consideration and so his right, title and interest in the suit land cannot be questioned by the plaintiffs and prays to dismiss the suit with costs.

5. The 5th defendant filed written statement and the contents of it were almost same contents of the first defendant and 4th defendant he further submitted that 5th defendant is a sickly person.

The moment he received injunction warrant and suit summons in the above case, the D5 had a heart stroke and he was immediately taken to Care Hospital , Visakhapatnam and had to spend about two lakhs of rupees for medical treatment besides undergoing mental torture which the D5 estimates at three lakhs of rupees. The D5 therefore, claims a counter claim of five lakhs of rupees against the plaintiffs, as the cause of action for the counter claim arose on the very day when he received the court summons on 09.11.2010 and a court fee worth of

Rs.7,426/- dated 10.12.2010 is paid under order 8 Rule 6 A of CPC under bank challan and prays to court to award decree of

Rs.5,00,000/- against the plaintiffs towards the counter claim.

6. The 6th defendant filed written statement and the contents of it were almost same contents of the first defendant and further submitted that the plaintiffs are not entitled the declaration and possession of the suit lands. The plaintiffs have no right to pray for the issue of an injunction against the defendants restraining them from ever alienating the same in any manner they like to third parties, as it is their absolute right to do so as owner of the plaint schedule property. The defendant obtained encumbrance certificate16.10.2010 13 OS.NO.79/2010 Dt.03.04.2024 which clearly shows that there are no transactions relating to suit land except his transaction only. This defendant made enquires also about the title of the suit land and then only he purchased the suit land. So, at any rate he is a bonafide purchaser for consideration and so his right, title and interest in the suit land cannot be questioned by the plaintiffs and prays to dismiss the suit with costs.

7. The 7th defendant filed written statement by denying the material allegations mentioned in the plaint and alleged that the plaintiffs are not entitled for declaration that they are the owners of the plaint schedule land and also they are not entitled for recovery of possession after due eviction of the defendants therefrom and also for consequential relief of permanent injunction restraining the defendants from alienating the land in favour of third parties. It is a deliberate false hood that D1 to D3 unlawfully and illegally executed nominal collusive document to D7 without consideration suppressing pendency of the suit and injunction orders restraining he alienation in order to screen the same and deceive the rights of the plaintiff in the suit. D7 is a bonafide purchaser of no notice of earlier proceedings between plaintiffs and D1 to D3. The registered sale deed dated 17.06.1998 said to have been executed by Bevara Chinnamnaidu in favour of first plaintiff and the registered settlement deed by first plaintiff in favour of 2nd plaintiff and the registration extract dated 29.04.1966 executed by

Samantula Ramanna in favour of Bevara Chinnammi are not true and correct. The said documents are not binding on the defendants. D7 obtained a General power of attorney form D1 to D3 for management etc., mentioned in the registered power of attorney dated 16.06.2015 in 14 OS.NO.79/2010 Dt.03.04.2024 respect of Ac.0.43 cents sold by registered sale deeds to third parties and subsequently, D7 as General power of attorney holder of D1 to D3 purchased dry land measuring Ac.0.42 cents out of Ac.0.92 cents of northern part in S.NO.53/2 situated in Rajam Nagara panchayat of

Gopalapuram village for a valuable consideration of Rs.30,50,000/- under registered sale deed dated 30.07.2015 as such D7 became absolute owner in respect of the plaint schedule. D7 obtained another registered General Power of attorney cum sale agreement from D1 to

D3 dated 07.03.2014, subsequently, sold by D7 to Jangam Gowri in

Sy.No.53/2 out of AC.0.92 cents part measuring 30 feet x 55 feet of zerayati dry. Similarly on 19.06.2015 in respect of 75 feet from East to

West and 58.5 feet from North to South. The above registered power of attorney in faovur of D7 by D1 to D3 and also sale deeds in favour of

Jangam Gowry, Jangam Bhavani executed by D7 binds the plaintiff.

Anem Bhaskararao also purchased dry land under a registered sale deed dated 01.12.2015 from D7. D7 executed several sale deeds in favour of third parties in respect of the same land in S.No.53/2 in parts by dividing into plots out of 0.43 the said alienees from D7 by name Seemakurti Vijayalakshmi, Jangam Gowri, Jangam Bhavani and

Anem Bhaskararao who are in actual possession are necessary parties as D7 already sold land in dispute to the alienees. The plaintiff without any right, title in the property filed the above suit only to grab the property of D1 to D3 in respect of S.NO.53/2 of Gopalapuram village,

Rajam Nagara Panchayat, the plaintiffs are not entitled for any relief in the above suit and prays to dismiss the suit with costs.

15 OS.NO.79/2010 Dt.03.04.2024

8. Basing on the rival contentions of both the parties, the following issues were settled for trial.

1.Whether the plaintiffs are entitle for decree for declaration of title that plaintiffs are the owners of the plaint schedule land and for recovery of the possession after due eviction of the defendants, there from?

2.For consequential relief of perpetual injunction restraining the defendants from alienating the plaint schedule land in favour of their parties for ever?

3.To what relief?

9. To prove the case of the plaintiff, first plaintiff himself examined as P.W.1, got examined three third party witnesses to the suit as P.W.s 2 to 4 and got marked Ex.s A1 to A34. Ex.A1 is the original Registered sale deed dated 17.06.1998; Ex.A2 is the original

Registered settlement deed dated 08.02.2005; Ex.A3 is the Certified copy of Registered sale deed dated 29.04.1966; Ex.A4 is the certified copy of Registered sale deed dated 16.07.1964; Ex.A5 is the certified copy of Adangal for the fasali 1406, dated 17.06.1998; Ex.A6 is the certified copy of sale deed dated 04.11.1966; Ex.A7 is the certified copy of sale deed dated 24.11.1987; Ex.A8 is the certified copy of SLR issued by the Tahsildar, Rajam for Sy.No.53/2 of Gopalapuram; Ex.A9 is the Adangal for the fasali 1416 for the Sy.No.53/2 of Gopalapuram;

Ex.A10 is the Pattadar pass book issued by the Tahsildar, Rajam;

Ex.A11 is the Title deed book issued by the Tahsildar, Rajam; Ex.A12 is the certified copy of Registered sale deed dated 23.11.2010; Ex.A13 is the certified copy of Registered sale deed dated 15.05.2010; Ex.A14 is the certified copy of Registered sale deed dated 15.05.2010; Ex.A15 is the certified copy of Registered sale deed dated 15.05.2010; Ex.A16 is the certified copy of Registered sale deed dated 14.06.2010; Ex.A17 16 OS.NO.79/2010 Dt.03.04.2024 is the certified copy of General power of attorney agreement dated 08.09.2021; Ex.A18 is the certified copy of General power of attorney agreement, dated 23.11.2010; Ex.A19 is the certified copy of Registered sale deed dated 16.06.2015; Ex.A20 is the certified copy of Registered sale deed dated 24.06.2015; Ex.A21 is the certified copy of Registered sale deed dated 30.10.2021; Ex.A22 is the certified copy of Registered sale deed dated 13.09.2021; Ex.A23 is the certified copy of General

Power of attorney agreement dated 18.08.2021; Ex.A24 is the Certified copy of General Power of Attorney agreement dated 18.08.2021;

Ex.A25 is the Certified copy of General Power of Attorney agreement

dated 18.08,2021; Ex.A26 is the Certified copy of General Power of

Attorney agreement dated 28.09.2021; Ex.A27 is the Certified copy of

General Power of Attorney agreement dated 28.09.2021; Ex.A28 is the certified copy of Registered sale deed dated 25.10.2021; Ex.A29 is the

Certified copy of General Power of Attorney agreement dated 18.08.2021; Ex.A30 is the Certified copy of General Power of Attorney agreement dated 29.09.2021; Ex.A31 is the Certified copy of General

Power of Attorney agreement dated 01.09.2022; Ex.A32 is the Certified copy of General Power of Attorney agreement dated 05.01.2022;

Ex.A33 is the Certified copy of General Power of Attorney agreement

dated 05.01.2022 and Ex.A34 is the Certified copy of General Power of

Attorney agreement dated 05.01.2022.

10. On behalf of the defendants, first defendant himself examined as D.W.1, got examined six third party witnesses as D.W.s 2,3,5,6,8 & 11 and tenant of land of first defendant examined as

D.W.4, 7th defendant himself examined as D.W.7, the document writer 17 OS.NO.79/2010 Dt.03.04.2024 of Ex.B18 as D.W.9 and Sub Registrar, Rajam examined as D.W.10 and got marked Ex.s B1 to B26. Through D.W.10 Ex.X1 and X2 are marked. Ex.X1 is the Thumb impression register volume No.410 from 06.03.2014 to 17.04.2014; Ex.X2 is the thumb impression register volume No.420 from 04.06.2015 to 30.06.2015. Ex.B1 is the Partition

Deed dated 20.03.1963; Ex.B2 is the E-Pass Book; Ex.B3 is the 1-B

Adangal dated 14.02.2022; Ex.B4 is the 1-B Adangal dated 08.07.2022; Ex.B5 is the 1-B Adangal dated 19.10.2022; Ex.B6 is the

Cist receipt, dated 20.02.1969; Ex.B7 is the Cist receipt dated 17.02.1974; Ex.B8 is the Cist Receipt dated 11.03.1976; Ex.B9 is the

Cist Receipt dated 13.03.1976; Ex.B10 is the Cist receipt dated 13.03.1976; Ex.B11 is the Cist receipt dated 15.02.1979; Ex.B12 is the

Cist receipt dated 12.01.1990; Ex.B13 is the Cist receipt dated 13.05.2007; Ex.B14 is the Cist receipt dated 10.10.2010; Ex.B15 is the certified copy of FMB; Ex.B16 is the Order copy of Lok Adalat, dated 19.07.2008; Ex.B17 is the Registered power of attorney document

No.2723/2015, dated 16.06.2015 at SRO, Rajam in favour of D7 executed by D1 to D3 copy obtained form Grama Sachivalayam;

Ex.B18 is the Registered power of attorney cum sale agreement dated 07.03.2014 vide Doc.No.613/2014 at SRO, Rajam in favour of D7 executed by D1 to D3 copy obtained from Gram Sachivalayam; Ex.B19 is the Registered sale deed Document No.3581/2015 dated 30.07.2015 in favour of D7 coy obtained from Grama Sachivalayam; Ex.B20 is the registered sale deed No.2962/2015, dated 24.06.2015 at SRO, Rajam in favour of Jingam Gowri executed by D7 copy obtained from Grama

Sachivalayam; Ex.B21 is the Registered sale deed No.2816/2015 dated 19.06.2015 at SRO, Rajam in favour of Undralla Gowri Shankar 18 OS.NO.79/2010 Dt.03.04.2024

Lakshmanarao executed by D7; Ex.B22 is the registered sale deed bearing No.2961/2015 dated 24.06.2015 in favour of Seemakurthi

Vijayalakshmi executed by D7 copy obtained from Grama

Sachivalayam; Ex.B23 is the Registered sale deed bearing

No.2963/2015 dated 24.06.2015 in favour of Jingam Bhavani executed by D7 copy obtained from Grama Sachivalayam; Ex.B24 is the Registered sale deed bearing No.225/2015 dated 01.12.2015 in favour of Anem Bhaskararao executed by D7 copy obtained from

Grama Sachivalayam; Ex.B25 is the Cancelled Registered Sale deed

No.4350/2018 dated 03.08.2018 with Anem Bhaskararao and Ex.B26 is the Cancelled Registered sale deed bearing No.4716/2020 dated 05.10.2020 with Jingam Gowri.

11. Heard the learned counsels for the Plaintiffs and the

Defendants. Perused the written arguments and citations filed by the both counsels.

12. The learned plaintiff counsel by submitting his arguments contending that the plaintiff is the absolute owner of the plaint schedule property who purchased the same through a registered sale deed dated 17.06.1998 from Bevara Chinnammai, W/o Dalappadu for a valid consideration of Rs.1,60,000/-.He further contended that the vendor of the first plaintiff got the property through a registered sale deed dated 29.04.1966 thereafter the first plaintiff executed settlement deed in favour of 2nd plaintiff who is the sister of the first plaintiff on 08.02.2005 to an extent of Ac.0.67 ½ cents in S.NO.53/2 as such the plaintiffs are the absolute owner of the plaint schedule property. He further contended that D1 to D3 has no landed property in S.No.53/2 19 OS.NO.79/2010 Dt.03.04.2024 as they already sold away his share to the Gundabala Satyavathamma,

W/o Nageswararao and Gundabala Sudharsanarao through a registered sale deed dated 04.11.1966 as such, the first defendant has no right and title over the plaint schedule property. He further contended that the first defendant by influencing the revenue authorities and got pattadar pass book and revenue records to an extent of Ac.1.37 cents in S.NO.53/2 and alienated some properties to 4th to 6th defendants. He further contended that in the partition between first defendant and his brothers the middle share of the property i.e Ac.1.33 cents fell to the share of first defendant.

Subsequently, an extent of Ac.1.19 cents was given to his brother in exchange of the same as such, the northern boundary and southern boundary was shown the first defendant property in the plaint schedule property. He further contended that the mere filing of revenue records does not confer right and title to the defendant. In support of his contention, he relied on citation which was reported in 2004(3) ALT 200 between Sammeta Tulasi Ram and others Vs. State of A.P and others, wherein it was held at Para No.20 that “ So far as the principle laid down in the above judgment is concerned, it is not in dispute, but in the facts and circumstances of the case on hand and in view of the decision referred above, I am of the view that the entries in the revenue records do not confer any valid title to the person in whose name the entries are made against the person who acquired valid title according to law. Unless the parties adopt one of the modes provided under the

Transfer of Property Act or any other law for the time being in force, the claim regarding the title of the D4 cannot be recognized as it is not valid under law”.

20 OS.NO.79/2010 Dt.03.04.2024 ii) The learned plaintiff counsel also relied on another citation reported in 2002(5) ALD 568 between Sammeta Tulasi Ram and others

Vs. State of A.P. and others wherein it was held that “ Record of Rights - The entries in record of rights do not confer title – when the plaintiffs based their claim on registered sale deed, the mere mutation in favour of the D4 does not confer the title on her, more so when she did not contest the suit – Hence, Government cannot attach the said property for realizing the amounts found to have been misappropriated by the husband of the fourth defendant, working as the village officer, on the ground tht the properties were offered as security by him.” iii) Also relied on another decision reported in 1998(2) ALT 623 between Yeluri Vijayabharathi and others Vs. Yeluri Manikyamma and others, wherein it was held at Para No.8 that “Mr. Haranath, the learned Advocate is not right in contending that the entries in the

Record of Rights Register should be taken as the basis to fix the title.

Although, the entries in the Record of Rights register enjoy the presumption in law that the entries are true unless the contrary is proved and may not be discredited, the records of rights are no records of documents of title. Such a question has been clearly dealt with by the Honourable Supreme court in Nagarpalika, Jind Vs. Jagat

Singh and following Nirman Singh Vs.Lal Rudra Pratap, it has been held that such documents are more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. In other 21 OS.NO.79/2010 Dt.03.04.2024 words, the records of rights are the documents ensuring the person to be made liable to pay the revenue and for no other purpose. However, it may not be hastened to be added that such entries have got corroborative value regarding the possession of a party in regard to an immovable property”

Relying on those citations the learned counsel for plaintiff prays to decree the suit.

13. On the other hand, the learned counsel for defendants 1 to 3 by submitting his arguments contending that the plaintiff has no absolute right and title over the plaint schedule property originally, the 1st defendant got the property under Kutumba Parikattuura Dastaveju which was marked under Ex.B1 dated 20.03.1963 in the said partition the first defendant has got Ac.5.97 cents including the land and covered in S.No.53/2 which is an extent of Ac.1.33 ½ cents with his brothers. He further contended that the first defendant and his sons sold away some extent of land i.e Ac.0.12 cents through a registered sale deed dated 15.05.2010 to 5th defendant as well as an extent of

Ac.0.10 cents through a registered sale deed dated 15.05.2010 to the 4th defendant and Ac.0.28 cents through a registered sale deed dated 15.05.2010 in S.No.53/2 to the 6th defendant as such after that the first defendant has got Ac.0.80 cents in S.No.53/2. The document executed by Bevara Chinnammi which is an extent of Ac.0.93 cents does not contain the survey number and the boundaries also not correct. He further contended that the Ex.A2 to A12 are no way concerned to the first defendant and 7th defendant created GPA and sold away property to the 3rd parties. So, the revenue records and 22 OS.NO.79/2010 Dt.03.04.2024 documents filed by the first defendant which shows that he got the property which is ancestral property apart from the land in S.NO.53/2.

14. On the other hand, 7th defendant by submitting his arguments contending that the 7th defendant is a bonafied purchaser form D1 to D3 and D1 executed GPA for an extent of Ac.0.42 cents out of Ac.0.92 cents of the northern part of the S.No.53/2 subsequently, the 7th defendant sold away the property to the Jangam Gowri, through a registered sale deed dated 19.07.2015 and Jangannadha Bhavani through a registered sale deed dated 01.12.2015. He further contended that the suit filed by the plaintiff is not maintainable the suggestion in the cross examination of D.W.1 and D.W.7 itself shows that the first defendant and his brothers sold away in respect of their shares to the third parties. The documents filed by the defendant which shows that the properties were already alienated by laying plots to the third parties there is no existence of the properties as vacant land as stated by the plaintiff. It is well settled Law the plaintiff has to establish the title and possession over the plaint schedule property.

In support of his contention he relied on citations which was reported in 2014(2) ALD 157 (SC) between Union of India and others

Vs. Vasavi Co-op. Housing Society Limited and others, wherein it was held at Para No.15 that The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendant is found 23 OS.NO.79/2010 Dt.03.04.2024 against in the absence of establishment of plaintiffs own title, plaintiff must be non –suited.

ii) Another citation reported in 2023(2) ALD 28 (SC) between

Smriti Debbaram (dead) thr. LRS Vs.Prabha Ranjan Debbarma and others, wherein it was held that “Specific Relief Act, 1963 – Section 34 – Suit for declaration of title and possession – Decree of possession –

Entitlement – Plaintiff must establish a legal title to property – And only then is entitled to a decree of possession – Defendants cannot be dispossessed unless plaintiff has established a better title and rights over property – A person in possession of land in assumed character as owner, and exercising peaceably ordinary rights of ownership has a legal right against entire world except the rightful owner – Decree of possession cannot, therefore, be passed in favour of plaintiff unless it fully established right, title and interest in property – Evidence Act, 1872, Sections 101 and 102 – Burden of Proof – To establish title in suit for title and possession iii) Relied on another decision reported in 2019(2) ALD 64 (SC) between Poona Ram Vs. Moti Ram (Died) thr. LRs and others, wherein it was held that “Limitation Act, 1963 – Section 64 – Suit based on possessory title – Plaintiff to show that he was under settled or established possession of property in question – Mere casual possession that too relying on a motor vehicle body lying on a part of property, would not prove settled possession of plaintiff – plaintiff cannot succeed on weakness of case of defendant – In order to claim possessory title, plaintiff will have to prove his own case – And also will have to show that he has better title than any other person.

24 OS.NO.79/2010 Dt.03.04.2024

So, relying on those citations, the learned counsel for 7th defendant prays to dismiss the suit.

15. On perusal of the material on record, on behalf of the plaintiff P.W.s 1 to 4 examined and got marked Ex.s A1 to A34 are marked. On behalf of the defendants, D.W.s 1 to 11 were examined and got marked Ex.s B1 to B26, Through D.W.9, Ex.X1 and X2 are marked.

16. At the outset the suit is filed for declaration and possession and consequential permanent injunction restraining the defendants not to alienate the plaint schedule property. The plaint schedule property which is an extent of Ac.1.33 ½ cents in S.NO.53/2 corresponding to patta No.224 with old Patta No.2619 out of an extent of Ac.4.00 cents situated towards southern part in Gopalapuram village, Rajam Mandal bounded by East: Cart track; South: Dry land of Grandhi Venkataraju alias Gova Sahukari; West: Dry land belong to the first plaintiff and North: Dry land belong to the first plaintiff i.e first item.

17. It is well settled Law in a suit for declaration and possession, the plaintiff has to establish the legal title over the plaint schedule property. As seen from the material record and evidence of both parties, it is admitted fact that Samanthula Chinnappadu has got three sons by name Samanthula Ramannappadu, Sanyasinaidu and

Sangam Naidu (first defendant). It is also an admitted fact that the land in S.No.53/2 which is an extent of Ac.4.00 cents, the said S.No.is a pura land in the partition between the Ramappadu, Sanyasinaidu 25 OS.NO.79/2010 Dt.03.04.2024 and Sangamnaidu each got Ac.1.33 ½ cents in S.No.53/2 as such it is undisputed fact with regarding to the above facts.

18. Now the brief evidence of the plaintiff witnesses is as follows:-

i) One Pasumarthi Rambabu who is the first plaintiff examined as

P.W.1. Through his evidence, Ex.s A1 to A34 are marked. As seen from the evidence of P.W.1, evidence is nothing but replica of the contents of the plaint. As per the evidence of P.W.1 goes to show that he purchased the plaint schedule property under Ex.A1 registered sale deed dated 17.06.1998 from Bevara Chinnammi W/o Dalappadu for valuable consideration of Rs.1,60,000/- since then, he has been in possession and enjoyment of the same, his vendor Bevara Chinnammi purchased the same through a registered sale deed dated 29.04.1966 which was marked as Ex.A3 thereafter he executed registered settlement deed date 08.02.2005 in favor of his sister i.e 2nd plaintiff towards love and affection which is an extent of Ac.0.67 ½ cents as such they are the absolute owners of the plaint schedule property. He further stated that the defendants 1 to 3 have no right and title over the plaint schedule property and they have no land in S.No.53/2 of

Gopalapuram village as they already sold away to Gundabala

Satyavatamma, W/o Nageswararao and Gundabala Sudharsanarao under registered sale deed dated 04.11.1966 which is an extent of

Ac.1.87 cents which was marked as Ex.A6. In turn the said

Gundabala Satyavathamma and Gundabala Sudarsanarao sold away the said land to Grandhi Venkataraju through a registered sale deed

dated 24.11.1987 as such the defendants have no landed property in

26 OS.NO.79/2010 Dt.03.04.2024

S.No.53/2. He further stated that the vendor of Bevara Chinnammi by name Samanthula Ramannappadu and Samanthula Papanna and

Samanthula Sumamma @ Gaviramma W/o Suranna are jointly purchased the land with an extent of Ac.11.00 cents from Peesapati

Apalacharyulu under a registered sale deed dated 16.07.1964 including the land in Sy.No.53/2 with an extent of Ac.4.00 cents of land. The said Samanthula Rammannappadu, Samanthula Papanna and Samanthula Gaviramma are orally partitioned the said land under the sale deed dated 16.07.1964. The land in S.NO.53/2 with an extent of Ac.4.00 cents of dry land in Gopalapuram village is fell to the said

Samanthula Ramannappadu. The said Samanthula Ramannappadu equally partitioned to his brothers and to him and each will get

Ac.1.33 ½ cents in S.No.53/2 of Gopalapuram. The Sangamnaidu and

Sanyasirao exchanged Ac.0.50 cents i.e Sanyasirao has given Ac.0.50 cents in S.No.53/2 to Sangamnaidu and the Sangamnaidu given another land of Ac.0.50 cents to Sanyasirao. So, the Sangamnaidu given another land of Ac.0.50 cents to Sanyasirao. So, the

Sangamnaidu D1 is having Ac.1.87 cents in S.No.53/2 of

Gopalapuram. The said Sangamnaidu D1 and D2 Satyamnaidu are jointly sold away the said land to Gundabala Satyavathamma and

Gundabala Sudarsanarao under a registered sale deed dated 04.11.1966. He further stated that the defendants in order to grab the land influenced the revenue authorities obtained fabricated pattdar pass book, title deed to an extent of Ac.1.37 cents in S.No.53/2. He further contended that subsequently he came to know that D1 to D3 created nominal document like General Power of Attorney and executed sale deed in favour of D4 to D6 in turn D4 to D6 sold away 27 OS.NO.79/2010 Dt.03.04.2024 the plaint schedule property to the others without having any manner of right and title. As such, the plaintiff filed the suit for declaration of title and possession and consequential relief of injunction.

ii) One Bevara Dalinaidu and one Bevara Suryanarayana who are the 3rd party to the suit examined as P.W.2 and P.W.3, their evidence is corroborating with the evidence of P.W.1 with regarding to the purchase of land from Bevara Chinnammi through a registered sale deed dated 17.06.1998 which is an extent of Ac.1.33 ½ cents . They further stated that the mother of P.W.2 Bevara Chinnammi purchased the land through a registered sale deed dated 19.04.1966 from

Samanthula Ramannappadu. The said Samanthula Ramannappadu,

Papanna, Sumamma @ Gaviramma are jointly purchased the land which is an extent of Ac.11.00 cents from Peesapati

Appalakondacharyulu, S/o Peesapati Satyanarayanacharyulu under a registered sale deed dated 16.07.1964 including the land covered in

S.No.53-2 with a total extent of AC.4.00 cents . They further stated that in the said partition Ramannappadu has got AC.1.33 ½ cents the same was sold to the mother of P.W.2 through a registered sale deed

dated 29.04.1966. Thereafter mother of P.W.2 sold away the said land

to the first plaintiff under registered sale deed dated 17.06.1998.

Thereafter the first plaintiff executed settlement deed in favour of second plaintiff out of love and affection which is an extent of Ac.0.67 ½ cents through a registered settlement deed dated 17.06.1998. They further stated that one Samanthula Sanyasirao who is the brother of first defendant sold away his share which is an extent of Ac.0.78 cents 28 OS.NO.79/2010 Dt.03.04.2024 in S.NO.53-2 of Addanki Srinivasarao, S/o Satyam under registered sale deed vide Doc.No.1760/1969 as such, the plaintiff has been in possession and enjoyment of the plaint schedule property.

iii) One Geddapu Parannaidu who is the third party to the suit examined as P.W.4, his evidence is also corroborating the material aspects of evidence of P.W.1 and in the same lines of P.W.s 2 and 3.

19. The brief evidence of defendant witnesses is as follows:

i) One Samanthula Sangamnaidu who is the first defendant himself examined as D.W.1,his evidence is nothing but replica of the contents of his written statement. In his evidence he denied the right and title of the plaintiff and stated that in the family partition he got the property which is an extent of Ac.5.97 cents including the plaint schedule property S.No.53-2 and he himself and his brothers have got an extent of Ac.1.33 ½ cents in S.No.53-2, so he has got Ac.1.33 ½ cents to his share and executed Kutumbasthula Pampakam Parikattu

Dasthaveju dated 20.03.1963. He further stated that his land was in between his brothers share by name Ramannappadu being towards north and the share of Sanyasinaidu being towards south. His brothers sold away their share in the Sy.No.53/2. He further stated that he sold the land an extent of Ac.1.80 cents to Gundabala

Satyavathamma, W/o Nageswararao and Sudarsanarao. He further stated that he sold away the land an extent of Ac.0.12.9 cents in

S.NO.53-2 under registered sale deed dated 15.05.2010 to 5th defendant and also Ac.0.10 cents to 4th defendant through a registered sale deed dated 15.05.2010 and Ac.0.28 cents to the 6th 29 OS.NO.79/2010 Dt.03.04.2024 defendant in S.No.53/2 through a registered sale deed dated 15.05.2010 as such after selling the above said land he has got Ac.0.80 cents in S.No.53/2 has been in possession and enjoyment of the same. The revenue authorities also issued pattadar pass book and title deed in respect of the remaining land. He further stated that the sale deed executed by Samanthula Ramannappadu, S/o late Chinnappadu and Bevara Chinnammai which is not contain the survey numbers and boundaries are also not correct. He further stated that the defendant has been in possession and enjoyment of the land the government also issued pattadar pass book and title deed and one

Kocharlapati Satyavathi filed a suit O.S.No.86/2007 on the file of

Junior Civil Judge, Rajam for declaration of title and possession in one bit in S.NO.53/2, the said case was compromised before Lok Adalath.,

The plaintiff has no right and title filed the suit without any cause of action. Through the evidence of D.W.1, Ex.s B1 to B6 are marked.

ii) One Yedla Trinadha who is the third party to the suit filed his chief affidavit as D.W.2 but his evidence was eschewed on 11.04.2023.

iii) one Amiti Appanna Dora who is also third party to the suit, filed his chief affidavit as D.W.3, his evidence was eschewed on 25.04.2023.

iv) One Ippili Dalinaidu who is the third party and tenant of first defendant examined as D.W.4, his evidence is corroborating the evidence of D.W.1 with regarding to the acquiring of property with his brothers and also got the land an extent of Ac.1.33 ½ cents out of

Ac.5.97 cents in S.No.53/2. He further stated that he cultivated the 30 OS.NO.79/2010 Dt.03.04.2024 land of the first defendant since 30 years and also cultivated the land an extent of Ac.0.80 cents in S.No.53/2. The government i.e Mandal

Tahsildar issued pattadar pass book and title deed to the first defendant in respect of the Ac.0.80 cents in S.NO.53/2 and the first defendant has been in possession and enjoyment of the same.

v) One Perumali Ramayya who is the third party to the suit examined as D.W.5, he also deposed the same lines of D.W.4 with regarding to the acquiring of property by the first defendant with his brothers in the partition. Since then, the first defendant has been in possession and enjoyment of the same.

vi) One Adapaka Sanyasappadu examined as D.W.6, his evidence also corroborating the evidence of D.W.4 and D.W.5 in the same lines.

vii) One Seemakurthi Satyanandarao who is the 7th defendant himself examined as D.W.7, in his evidence, he stated tht about the

General Power of Attorney executed by first to 3rd defendants in his favour subsequently, he sold away the property to the Undralla Gowri

Sankara Lakshmanarao through a registered sale deed dated 19.06.2015 and also he executed sale deeds in favour of Jingam Gowri and Jingam Bhavani through a registered sale deed No.225/2016

dated 01.12.2015 to Anem Bhaskararao and executed sale deed

No.2961/2015 dated 24.06.2015 in favour of Seemakurthi

Vijayalakshmi and also executed several sale deed in faovur of 3rd parties in respect to the same land in S.No.532-2 in parts by diving into plots out of Ac.0.42 cents and through the evidence of D.W.7, Ex.s

B17 to B26 are marked.

31 OS.NO.79/2010 Dt.03.04.2024 viii) One Dabbiru Chiranjeevi who is the document writer examined as D.W.8, in his evidence he deposed about the scribe of the

GPA dated 16.06.2015 executed by Samanthula Sangayya and his sons in favour of Seemakurthi Sayanandam in respect of dry land in an extent of Ac.0.43 cents out of Ac.0.92 cents in S.NO.53/2 and also

GPA executed by Samanthula Sangamnaidu @ Sangayya and his younger son namely Ramu in favour of Seemakurthi Satyanandarao

dated 16.06.2015 the said GPA was attested by Kotla Lakshmanarao

and A.Ramarao. He further stated that he scribed the registered settlement deed dated 24.06.2015 executed by Samanthula

Sangamnaidu @ Sangayya and his sons namely Satyamnaidu and

Ramu through GPA in favour of Seemakurthui Vijayalakshi in respect of vacant site of 400 sq.yards out of Ac.0.92 cents covered by S.No.53- 2 and also another registered sale deed dated 24.06.2015 by the same parties and also another registered sale deed dated 30.07.2015 executed by Samanthula Sangamnaidu and its GPA holder

Satyanandarao.

ix) One Vishnupatruni Ramarao who is the document writer of

Ex.B18 examined as D.W.9, in his evidence he also stated that he defendants 1 to 3 executed registered GPA cum possessory agreement of sale dated 07.03.2014 in favour of Seemakurthi Satyanandarao which is an extent of dry land Ac.0.42 cents subsequently, the said

Satyananadarao executed sale deeds in favour of third parties. One

M.M.Pothanna Dora and R.Appalanaidu and A.Ramarao are attestors of the said power of attorney cum possessory sale agreement.

32 OS.NO.79/2010 Dt.03.04.2024

x) One S.S.Revathi who is the Sub Registrar, Rajam examined as

D.W.10, through her evidence Ex.X1 and X2 are marked. As per the evidence of D.W.10, D1 to D3 executed GPA dated 16.06.2015 and another GPA dated 16.06.2015 in favour of 7th defendant. The evidence of D.W.10 further reveals about the execution of registered General

Power of attorney by D1 to D3 in favour of 7th defendant which was marked as Ex.B17 and Ex.B18.

xi) One Vegireddi Lakshmunaidu who is the third party to the suit and purchaser of the property from 7th defendant through a registered sale deed dated 24.08.2016 which is an extent of 100 sq.yards of site in S.No.52/3. He further stated that he also purchased another plot No.11 through a registered sale deed dated 23.02.2018 from Sikha Joji as such consisting in both plots he constructed two storied building in the said site. He further stated that Samanthula

Sangamnaidu executed a registered General Power of Attorney cum sale agreement dated 07.03.2014 in favour of Seemakurthi

Satyanandarao, he is also paying the house tax to the said house.

Issue No.1 and 2: 20.

Whether the plaintiffs are entitle for decree for declaration of title that plaintiffs are the owners of the plaint schedule land and for recovery of the possession after due eviction of the defendants, therefrom? &

For consequential relief of perpetual injunction restraining the defendants from alienating the plaint schedule land in favour of their parties for ever?

At the outset as discussed above the suit is filed for declaration and possession in respect of the plaint schedule properties. To substantiate the 33 OS.NO.79/2010 Dt.03.04.2024 version of the plaintiff case, apart from the P.W.s 1 to 4, who filed documents.

In the evidence of P.W.s 1 to 4 and D.W.s 1 to 11 it is admitted fact that the

Sy.No.53/2 which is an extent of Ac.4.00 cents out of which, first defendant and his brothers partitioned under Ex.B1, each got Ac.1.33 ½ cents in the family partition. To substantiate the version of the plaintiff in his evidence, he stated that the vendor of the Bevara Chinnammi by name Samanthula Ramannappadu and Samanthula Papanna and Samanthla Sumamma @ Gaviramma are jointly purchased the land an extent of Ac.11.00 cents from Peesapati Appalacharyulu through a registered sale deed dated 16.07.1964. But as seen from the entire contents of the plaint pleadings there is no whisper about the same. Similarly the

Samanthula Sangamnaidu and Samanthula Sanyasinaidu exchanged Ac.0.50 cents i.e Sansirao has given Ac.0.50 cents in S.No.53/2 to Sangamnaidu and the said Sangamnaidu given another land of Ac.0.50 cents to Sanyasirao. But as seen from the plaint pleadings there is no such whisper. Similarly first defendant, 4th defendant to 6th defendants in turn sold away the plaint schedule land to the other defendants without any manner of right and title and possession over the plaint schedule property. So as seen from the evidence of P.W.1 which are not mentioned in the plaint pleadings as stated the same. In the cross examination of

P.W.1 he was stated that “It is true I have no right over the said property since I gave right to 2nd plaintiff under gift deed”. Admittedly, the 2nd plaintiff was not examined in the suit to prove the contents of Ex.A2.

21. To substantiate the version of the plaintiff case, he filed the documents which was marked under Ex.s A1 to A11. A perusal of the Ex.A1 which is the original registered sale deed dated 17.06.1998 purchased by first plaintiff from 34 OS.NO.79/2010 Dt.03.04.2024

Bevara Chinnammi, W/o Dalappadu. As seen from the contents of the sale deed, the plaint schedule property which is consisting item No.3 schedule as follows:

పాత పట్టా నెంబర్ 2619 కొతత పట్టా నెంబర్ 224 జూరాయితి మెట్టా సర్వే నెంబర్ 53-2 పురా 4.00 సెంట్టు లో దక్షి ణ భాగెం యకర్స్ 1.33 ½ సెంట్స్ (0.534 హెకా ర్స్) మెట్టా కు హద్దు లు.

తూర్పు: బెండ్ు గోర్వే ; దక్షి ణెం: గర ెంధి వెంకట్రాజు ఉర్ఫ్ గోవా సాహుకారి ; పశ్చిమెం: మీ తాలూకా మెట్టా ; ఉతత ర్ెం మీ తాలూకా అనగా అెందలి 1 వ పర తిమెట్టా .

So, as per the Ex.A1 and Ex.B1 partition list and evidence of D.W.1 he categorically stated that since the first defendant is younger than his brothers i.e

Ramannappadu and Sanyasinaidu. So, as per the recitals of Ex.A1, Ac.1.33 ½ cents fell to the share of first defendant with his brothers which is of southern site of the entire land in S.No.53/2.

22. On perusal of the Ex.A2 which is the original settlement deed dated 08.02.2005 executed by first defendant in faovur of Grandhi Rajamani, W/o

Mrutyanjayarao which is an extent of Ac.1.91 ½ cents consisting two items. On perusal of the boundaries item NO.1 is consisting an extent of Ac.1.24 cents in

S.No.53/1 which is no way concerned to the plaint schedule property and the second item which is consisting Ac.0.37 ½ cents in S.NO.53/2 bounded by తూర్పు: బెండ్ు గొర్ే ; దక్షి ణెం: గర ెంధి వెంకట్రాజు గారి మెట్టా భూమి; ;ఉతత ర్ెం పసుమరిి రాెంబాబు గారి మెట్టా ; పశ్చిమెం: రాజయయపేట్ గార మమునకు చెందిన పసుమరిి రాెంబాబు గారి మెట్టా భూమి. But, whereas in the Rule(3) statement which is further mentioned the 35 OS.NO.79/2010 Dt.03.04.2024

Sy.No.53/2 an extent of Ac.0.30 cents. But to that extent of Ac.0.30 cents separate schedule was not given in Ex.A2.

23. On perusal of Ex.A3 which is certified copy of registered sale deed

dated 29.04.1966 executed by Samanthula Ramannappadu S/o Chinnappadu and

Apalanaidu, S/o RAmannappadu being minor represented by Ramannapadu which is an extent of Ac.0.95 cents but survey number was not mentioned, the patta number was mentioned as 2619. So, the Bevara Chinnammi has got only

Ac.0.95 cents which was sold to the vendor of the plaintiff. Ex.A4 is the certified copy of registered sale deed dated 16.07.1964 executed by Peesapati

Appalacharyulu, S/o Satyanarayanacharyulu which is consisting there are four items which are no way concerned to the plaint schedule property. Ex.A5 is the

Adangal for the fasalie 1406 which is consisting S.No.53/2 an extent of Ac.4.00 cents on the name of Bevara Chinnammi W/o Dalappadu an extent of Ac.1.34 cents. Ex.A6 is the certified copy of sale deed dated 04.11.1966 purchased by

Gundabala Nageswararao and Gundabala Satyavatamma and others from

Samanthula Appalanaidu and others which is an extent of Ac.0.50 cents.

Similarly Ex.A7 is the registered sale deed dated 24.11.1987 and Ex.A8 is the

SLR copy of Gopalapuram village, wherein S.No.53/2 stands on the name of

Samanthula Appalanaidu. So, the documents filed by the plaintiffs which reveals that there is no certainty of the extent of the plaint schedule property. It is well settled Law that in a suit for declaration the plaintiff has to establish the case on his own legs with specific boundaries and extent of land, but as seen from the entire contents of the plaint as well as evidence of the plaintiff witnesses, there is no whisper about how much extent of land was occupied by the first to 3rd defendants and sold away the same to the others.

36 OS.NO.79/2010 Dt.03.04.2024

24. As seen from the evidence of the D.W.1 he sold away an extent of

Ac.0.12 cents through a registered sale deed dated 15.05.2010 to the 5th defendant and to an extent of Ac.0.10 cents through a registered sale deed dated 15.05.2010 to the 4th defendant and to an extent of Ac.0.28 cents through a registered sale deed dated 15.05.2010 to 6th defendant . So, the total Ac.0.50 cents sold by the D1 to D3 to the above D4 to D6. As seen from the material record, it reveals that the plaint was presented on 05.10.2010 but whereas before filing of the suit itself the first defendant to 3rd defendants sold away the property to D4 to D6 as stated above.

25. To substantiate the version of the defendant apart from the oral evidence, he filed the documents. On perusal of the Ex.B1 which is the Kutumba

Asthula pampakam dated 20.03.1963 between first defendant and his brothers, wherein first defendant and each brother has got Ac.5.97 cents out of which the plaint schedule property S.No.53/2 which is total extent of Ac.4.00 cents each got Ac.1.33 ½ cents and first defendant has got Ac.1.34 cents. So, apart from the plaint schedule property survey number the first defendant has got other properties. As seen from the Ex.B2 which is the pattadar pass book and title deed stands on the name of first defendant which was categorically mentioned

S.No.53/2 stands on Ac.0.80 cents as ancestral property. Similarly, Ex.B3

Adangal Pahani for the faslie No.1431 dated 14.02.2022 as well as Ex.B4 Form 1-B dated 08.07.2022, Ex.B5 Form 1-B namuna dated 19.10.2022 and Ex.s B6 to B14 land revenue receipts shows that the first defendant has been paying the revenue receipts and also his name is mutated in the revenue records. Ex.B15 is the Field sketch in S.No.53. Ex.B16 is the Award copy passed in

O.S.NO.06/2007 between Kutcharlapati Satyavathi and Samanthula Sangayya.

37 OS.NO.79/2010 Dt.03.04.2024

In Ex.B17 to B26 which are the registered sale deeds marked through the evidence of D.W.7 reveals that D1 to D3 executed General Power of Attorney in favour of Seemakurthi Satyanandarao S/o late Appalanrarasimhulu in respect of

S.NO.53/2 an extent of Ac.0.43 cents out of Ac.0.92 cents. Subsequently, 7th defendant which was disposed under various sale deeds. Ex.B18 is the certified copy of registered GPA cum possession sale agreement dated 07.03.2014 executed by D1 to D3 in favour of Seemakurthi Satyananadarao/D7, S/o late

Appalanarasimhulu in respect of the site which is an extent of 2032.8 sq.yards in

S.NO.53/2 and Ex.B19 is the certified copy of registered sale deed document 3581/2015 dated 30.07.2015 in respect of the site which is an extent of 2032.8 sq. yards in S.NO.53/2 Ex.B20 is the certified copy of Registered sale deed executed by GPA holder on behalf of D1 to D3 by Seemakurhti Satyanandarao,

S/o Appalanarasimhulu in favour of Jinagam Gowri, W/o Krishnarao which is an extent of 183.33 sq.yards of site in S.No.53/2. Ex.B21 is the certified copy of registered sale deed No.2816/2015 dated 19.06.2015 in favour of Undralla

Gowrisankarlakshmanarao, S/o Narasimhapparao which is an extent of 487.5 square yards of house site. Ex.B22 is the certified copy of Registered sale deed bearing No.2961/2015 dated 24.06.2015 executed in favour of Seemakurthi

Vijayalakshmi, W/o Satyanandarao which is an extent of 400 square yards of site in S.No.53/2. Ex.B23 is the certified copy of Registered sale deed bearing

NO.2963/2015 dated 24.06.2015 in favour of Jingam Bhavani, W/o Jinagam

Bhaskarao an extent of 183.33 square yards of site in S.NO.53/2. Ex.B24 is the certified copy of Registered sale deed bearing No.225/2015 dated 01.12.2015

Anem Bhasakararao, S/o Veeranna an extent of 325 square yards of site in

S.NO.53/2. Ex.B25 is the certified copy of Registered sale deed executed by 38 OS.NO.79/2010 Dt.03.04.2024

Anem Bhaskararao, S/o Veeranna in favour of Samanthula Sangayya and others to an extent of 2081.2 square yards and Ex.B26 is the registered sale deed bearing No.4716/2020 dated 05.10.20 executed by Jingam Gowri, W/o

Krishnarao. So, as seen from the Ex.B17 to B26 which categorically established that D1 to D3 given General Power of Attorney cum sale to 7th defendant. The evidence of D.W.10 and Ex.X1 and X2 reveals that the said fact.

In the evidence of D.W.1 denied about the non execution of GPA but it is the fact that on seeing of Ex.s B17 to B26 is that he gave General Power of Attorney to 7th defendant as such, the defendant sold away the property in S.No.53/2. As seen from the entire contents of the plaint, there is no identity of the plaint schedule property when Ex.A2 Registered sale deed is situated some property in S.NO.53/1 and Ex.A1 property situated in S.NO.53/2. So, it is the burden of the plaintiff to establish the identity of the property. But he failed to identify the plaint schedule property in S.No.53/2 under Ex.A1 and A2.

26. The plaintiff also filed Ex.A2 to A34 which are the certified copies of sale deeds. On perusal of Ex.A12 which is the certified copy of General

Power of attorney cum agreement of sale dated 23.11.2010 executed by D1 to

D3 in favour of Sri Venkataratnam Traders, Rajam represented its Managing

Partner, Rajam by name Veerabhadrarao, S/o late Apparao which is an extent of 624 sq. yards in S.NO.53/2. On perusal of Ex.A13 which is the certified copy of

Registered sale deed dated 15.05.2010 executed by D1 to D3 in favour of

Malipeddi Eswaramma, W/o Manmadharao which is an extent of 138.88 sq.yards of site in S.NO.53/2; Ex.P14 which is the certified copy of General

Power of attorney cum sale agreement dated 15.05.2010 executed by D1 to D3 in favour of Sri Venkataratnam Traders, Rajam represented its Managing 39 OS.NO.79/2010 Dt.03.04.2024

Partner, Rajam by name Veerabhadrarao, S/o late Apparao which is rectification of Ex.A12. Ex.A15 is the certified copy of General Power of

Attorney cum sale agreement executed by D1 to D3 in favour of Kotla

Lakshmanarao, S/o Krishnarao dated 15.05.2010 which is an extent of 486.11 sq.yards of site in S.NO.53/2. Ex.A16 is the certified copy of GPA cum agreement of sale executed by first defendant under GPA in favour of Kotla

Lakshmanarao, S/o Krishnarao dated 14.06.2010 which is an extent of 120

Sq.yards of site. Ex.A17 is the certified copy of GPA dated 08.09.2021 executed by first defendant in favour of Samanthula Ramana, S/o late Ramulu to an extent of 100 sq.yards of site in S.Y. NO.53/2. Ex.A18 is the certified copy of

GPA cum agreement of sale rectification deed dated 23.11.2010 executed by D1 to D3 in favour of Kotla Lakshmanarao, S/o Krishnarao which is an extent of 486.11 square yards which is the Ex.A15 connected rectification of deed.

Ex.A19 is the certified copy of GPA executed by D1 to D3 in favour of

Seemakuirthi Satyananadharao/D7 S/o Appalanarasimhulu dated 16.06.2015 which is an extent of Ac.0.43 cents in S.NO.53/2 out of Ac.0.92 cents. Ex.A20 is the certified copy of registered sale deed dated 24.06.2015 executed by D1 to

D3 in favour of Seemakurthi Vijayalakshmi, W/o Satyananadarao which is an extent of 400 sq.yards of site . Ex.A21 is the certified copy of registered sale deed executed by first defendant in favour of Chinta Lakshmi, W/o

Lakshmanarao dated 30.10.2021 which is an extent of 200 sq.yards of site.

Ex.A22 is the certified copy of General Power of Attorney dated 13.09.2021 executed by first defendant in favour of Samanthula Ramana , S/o late Ramulu which is an extent of 340.88 Sq.yards. Ex.A23 is the certified copy of General

Power of Attorney dated 18.08.2021 executed by D1 in favour of Samanthula 40 OS.NO.79/2010 Dt.03.04.2024

Durgaprasad, S/o Satyam which is an extent of 400 sq.yards of site. Ex.A24 is the certified copy of General Power of attorney dated 18.08.2021 executed by

D1 in faovur of Samanthula Satyam, S/o Ramulunaidu which is an extent of 519.44 sq.yards of site. Ex.A25 is the certified copy of General Power of

Attorney dated 18.08.2021 executed by D1 in favour of Samanthula

Durgaprasad, S/o Satyam in respect of plots 17,18,19,20,21 in S.No.53/2 out of

Ac.0.80 cents. Ex.A26 is the certified copy of General Power of Attorney dated 28.09.2021 executed by D1 in favour of Ch.Ramu, S/o Sanyasinaidu which is an extent of 77 square yards of site. Ex.A27 is the certified copy of GPA dated 28.09.2021 executed by D1 in favour of Arella Koteswararao, S/o

Venugopalarao which is an extent of 100 sq. yards of site. Ex.A28 is the registered sale deed dated 25.10.2021 executed by D1 in favour of Samanthula

Ramana, S/o late Ramulu which is an extent of 100 sq.yards of site. Ex.A29 is the GPA agreement dated 18.08.2021 executed by first defendant in favour of

Samanthula Satyam, S/o Ramulunaidu which is an extent of 533.33 sq.yards of site. Ex.A30 is the certified copy of General power of attorney dated 29.09.2021 executed by D1 in favour of Ravada Madhubabu, S/o Satyanarayana which is an extent of 340.89 sq.yards of site. Ex.A31 is the certified copy of GPA dated 01.09.2022 executed by D1 in favour of Mahapatruni Venkatarao, S/o late

Suryanarayana which is an extent of 968 sq.yards of site. Ex.A32 is the certified copy of General Power of Attorney dated 05.01.2022 executed by first defendant in favour of Sunkari Sai Kishore, S/o Surya Prabhakararao which is an extent of 166.66 square yards of site. Ex.A33 is the certified copy of General

Power of Attorney cum registered sale deed dated 05.01.2022 executed by D1 in favour of Gampa Kalidas, S/o of late Sankararao which is an extent of 216.66 41 OS.NO.79/2010 Dt.03.04.2024 sq.yards of site. Ex.A34 is the General Power of Attorney cum registered sale deed dated 05.01.2022 executed by D1 in favour of Panda Varalakshmi, W/o

Venkatanageswararao which is an extent of 216.66 sq.yards of site.

27. So, as seen from the Ex.A12 to A34 , D1 to D3 sold away nearly an extent of Ac.1.77 cents . As per Ex.B1 the first defendant has got only Ac.1.34 ½ cents in S.No.53/2 in the family partition. So, the first defendant sold away the excess of the land. It is the contention of the 7th defendant is that he is the bonafied purchaser of the properties from the D1 to D3 under Ex.B17 and

Ex.B18 in the family partition took place between first defendant and his brothers there is exchange of Ac.0.90 cents in addition to first defendant share.

As such, the first defendant has got Ac.1.34 cents + Ac.1.80 cents in total

Ac.3.50 cents in S.No.53/2 under partition. But, there is no documentary proof to show that the first defendant brothers gave each Ac.0.90 cents to first defendant each to say that the first defendant has got property as stated by him.

Admittedly, the D.W.7 purchased the property under General Power of Attorney which was marked under Ex.B17 and Ex.B18 the same was confronted by examining the D.W.10 who is the Sub Registrar, Rajam got marked Ex.X1 and

X2. Subsequently, D.W.7 sold away the property to others under registered sale deeds they are in possession and enjoyment of the same. The evidence of

D.W.11 reveals the same. When the suit for declaration the plaintiff has to establish with specific boundaries of the plaint schedule properties. When the plaintiff came to know about the alienation of the properties in S.NO.53/2 which is the primary obligation of the plaintiff to appoint advocate commissioner to get measure the plaint schedule property under Ex.A1 and A2 to demarked the plaint schedule properties and the total extent of land in S.No. 53/2 but the 42 OS.NO.79/2010 Dt.03.04.2024 plaintiff failed to do the same and measured the plaint schedule land and learned counsel in S.No.53/2 which Ac.4.00 cents of land.

28. Admittedly, as seen from the both parties and pleadings and evidence, it is a fact that the Sy.No.53/2 is a pura land which is consisting in pura survey number, persons has to bear the excess or loss extent of the said respective land in that survey number. But the plaintiff failed to prove the same.

Even though, Ex.A19 to A34 is a subsequent to the suit proceedings which is hit under section 52 of Transfer of Property Act but the plaintiff has to establish the specific boundaries. In the cross examination of D.W.1 when the learned plaintiff counsel confronted about the Ex.B12 to B34 he denied the same. But it is a fact that D1 to D3 executed sale deeds under Ex.A12 to A34. So, when there is a documentary evidence, clearly established the sale of the properties by D1 to

D3 to others, the oral evidence cannot be admitted by denying the same which is effected under section 92 of Evidence Act. It is further contention of the defendants D4 to D6 that the court fees paid by the plaintiff is not correct.

Though, the D4 to D7 did not adduce any evidence but as seen from the plaint relief the plaintiff sought declaration and possession and consequential injunction. The plaintiff did not paid the court fee for injunction by assessing the notional value. The plaintiff paid the court fee under section 24(a) of A.P. Court

Fee and Suits Valuation Act, 3/4th value of the entire plaint schedule property.

29. As could be seen from the evidence of P.W.2 in his chief affidavit of examination categorically stated that the first plaintiff purchased the plaint schedule land from my mother under registered sale deed dated 17.06.1998 and since then, the plaintiff has been in possession and enjoyment of the said land 43 OS.NO.79/2010 Dt.03.04.2024 and they are the absolute owners of the plaint schedule property. So, this part of the evidence of P.W.s 2 and 3 which is contrary to the evidence of P.W.1. In the entire evidence of P.W.s 1 to 3 there is no whisper when the defendant encroached the plaint schedule properties and the cause of action to the suit arose. They baldly stated that the plaint schedule properties are the absolute owners of the plaintiffs, the defendant has no right and title over the plaint schedule properties.

30. As seen from the contents of the plaint there is no specific pleading as stated in the evidence of P.W.1. So, without pleading the adducing evidence cannot be looked into. On close reading of the citations referred by the plaintiff counsel is not applicable in the case on hand and the citations referred by the defendant counsel as discussed the burden of proof in declaration of suit is lies on the plaintiff. So, in view of the above facts and circumstances, considering the material on record, the plaintiff failed to establish the case. Hence, the suit is liable to be dismissed. Therefore, the issues are answered in favour of the defendants against the plaintiffs.

31. Issue No.3:

In the result, the suit is dismissed, both parties bear their own costs.

Dictated to the Stenographer, Gr.III, transcribed by her, corrected and

pronounced by me in open Court, this the 3rd day of April, 2024.

Senior Civil Judge

Rajam.

APPENDIX OF EVIDENCE

Witnesses Examined For Plaintiff:

P.W.1: 24.08.2022: Pasumarthi Rambabu 44 OS.NO.79/2010 Dt.03.04.2024

P.W.2: 31.10.2022: Bevara Dalinaidu P.W.3: 31.10.2022: Bevara Suryanarayana P.W.4: 31.10.2022: Geddapu Parannaidu

For Defendant:

D.W.1:08.12.2022: Samanthula Sangamnaidu D.W.2: 27.01.2023: Yedla Trinadha D.W.3: 18.04.2023: Amiti Appanna Dora D.W.4:25.04.2023: Ippili Dalinaidu D.W.5: 08.05.2023: Perumali Ramayya D.W.6: 26.06.2023: Adapaka Sayasappadu D.W.7: 14.08.2023: Seemakurthi Satyananadarao D.W.8: 09.10.2023: Dabbiru Chiranjeevi D.W.9: 14.11.2023: Vishnupatruni Ramarao D.W.10: 12.12.2023: S.S.Revathi D.W.11: 02.02.2024: Vegiredi Lakshmunaidu

Documents Marked For plaintiffs:

Ex.A1: Original Registered sale deed dated 17.06.1998 Ex.A2: Original Registered settlement deed dated 08.02.2005 Ex.A3: Certified copy of Registered sale deed dated 29.04.1966 Ex.A4: Certified copy of Registered sale deed dated 16.07.1964 Ex.A5: Certified copy of Adangal for the fasali 1406, dated 17.06.1998 Ex.A6: Certified copy of sale deed dated 04.11.1966 Ex.A7: Certified copy of sale deed dated 24.11.1987 Ex.A8: Certified copy of SLR issued by the Tahsildar, Rajam for Sy.No.53/2 of Gopalapuram Ex.A9: Adangal for the fasali 1416 for the Sy.No.53/2 of Gopalapuram Ex.A10 : Pattadar pass book issued by the Tahsildar, Rajam Ex.A11 :Title deed book issued by the Tahsildar, Rajam Ex.A12: Certified copy of Registered sale deed dated 23.11.2010; Ex.A13: Certified copy of Registered sale deed dated 15.05.2010; Ex.A14: Certified copy of Registered sale deed dated 15.05.2010; Ex.A15: Certified copy of Registered sale deed dated 15.05.2010; Ex.A16: Certified copy of Registered sale deed dated 14.06.2010; Ex.A17: Certified copy of General power of attorney agreement

dated 08.09.2021

Ex.A18: Certified copy of General power of attorney agreement,

dated 23.11.2010

Ex.A19: Certified copy of Registered sale deed dated 16.06.2015 Ex.A20: Certified copy of Registered sale deed dated 24.06.2015 Ex.A21: Certified copy of Registered sale deed dated 30.10.2021 Ex.A22: Certified copy of Registered sale deed dated 13.09.2021 Ex.A23: Certified copy of General Power of attorney agreement

dated 18.08.2021

Ex.A24:Certified copy of General Power of Attorney agreement

dated 18.08.2021

Ex.A25:Certified copy of General Power of Attorney agreement 45 OS.NO.79/2010 Dt.03.04.2024

dated 18.08,2021

Ex.A26: Certified copy of General Power of Attorney agreement

dated 28.09.2021

Ex.A27: Certified copy of General Power of Attorney agreement

dated 28.09.2021

Ex.A28: Certified copy of Registered sale deed dated 25.10.2021 Ex.A29: Certified copy of General Power of Attorney agreement

dated 18.08.2021

Ex.A30: Certified copy of General Power of Attorney agreement

dated 29.09.2021

Ex.A31: Certified copy of General Power of Attorney agreement

dated 01.09.2022

Ex.A32: Certified copy of General Power of Attorney agreement

dated 05.01.2022

Ex.A33 : Certified copy of General Power of Attorney agreement

dated 05.01.2022

Ex.A34: Certified copy of General Power of Attorney agreement

dated 05.01.2022

Ex.X1: Thumb impression register volume No.410 from 06.03.2014 to 17.04.2014 Ex.X2: Thumb impression register volume No.420 from 04.06.2015 to 30.06.2015.

For defendants:

Ex.B1: Partition Deed dated 20.03.1963 Ex.B2: E-Pass Book Ex.B3: 1-B Adangal dated 14.02.2022 Ex.B4: 1-B Adangal dated 08.07.2022 Ex.B5: 1-B Adangal dated 19.10.2022 Ex.B6: Cist receipt, dated 20.02.1969 Ex.B7: Cist receipt dated 17.02.1974 Ex.B8: Cist Receipt dated 11.03.1976 Ex.B9: Cist Receipt dated 13.03.1976 Ex.B10:Cist receipt dated 13.03.1976 Ex.B11:Cist receipt dated 15.02.1979 Ex.B12:Cist receipt dated 12.01.1990 Ex.B13:Cist receipt dated 13.05.2007 Ex.B14:Cist receipt dated 10.10.2010 Ex.B15: Certified copy of FMB Ex.B16: Order copy of Lok Adalat, dated 19.07.2008 Ex.B17: Registered power of attorney document No.2723/2015, dated 16.06.2015 at SRO, Rajam in favour of D7 executed by D1 to D3 copy obtained from Grama Sachivalayam Ex.B18: Registered power of attorney cum sale agreement dated 07.03.2014 vide Doc.No.613/2014 at SRO, Rajam in favour of D7 executed by D1 to D3 copy obtained from Gram Sachivalayam Ex.B19: Registered sale deed Document No.3581/2015 dated 30.07.2015 in favour of D7 coy obtained from Grama 46 OS.NO.79/2010 Dt.03.04.2024

Sachivalayam Ex.B20: Registered sale deed No.2962/2015, dated 24.06.2015 at SRO, Rajam in favour of Jingam Gowri executed by D7 copy obtained from Grama Sachivalayam Ex.B21: Registered sale deed No.2816/2015 dated 19.06.2015 at SRO, Rajam in favour of Undralla Gowri Shankar Lakshmanarao executed by D7 Ex.B22: Registered sale deed bearing No.2961/2015 dated 24.06.2015 in favour of Seemakurthi Vijayalakshmi executed by D7 copy obtained from Grama Sachivalayam Ex.B23: Registered sale deed bearing No.2963/2015 dated 24.06.2015 in favour of Jingam Bhavani executed by D7 copy obtained From Grama Sachivalayam Ex.B24: Registered sale deed bearing No.225/2015 dated 01.12.2015 in favour of Anem Bhaskararao executed by D7 copy obtained from Grama Sachivalayam Ex.B25: Cancelled Registered Sale deed No.4350/2018 dated 03.08.2018 with Anem Bhaskararao Ex.B26:Cancelled Registered sale deed bearing No.4716/2020 dated 05.10.2020 with Jingam Gowri.

Senior Civil Judge

Rajam

1 OS.NO.72/2018

Dt: 10.04.2024

IN THE COURT OF THE SENIOR CIVIL JUDGE, RAJAM

PRESENT: Sri M. BABU,

Senior Civil Judge,

Rajam.

Wednesday, this the 10th day of April, 2024.

O.S.No.72/2018

BETWEEN:

1.Pilla Savitramma, W/o late Venkatarao, Hindu, aged 75 years, Hindu, Household duties, resident of Near Srinivasa Takis, Saradhi, Rajam Municipality, Rajam Mandal, Srikakulam District.(DIED)

2.Bonda Laxmi, W/o Satyanarayana, aged 63 years, Hindu, Household duties, resident of Denkada, Denkada mandal, Vizianagaram District.

3.Busi Sarojini, W/o Krishnarao, aged 60 years, Hindu, Household duties, resident at Parlakimidi, Odisha state

4.Jakkam Nirmala, W/o late Krishnarao, aged 57 years, Hindu, Household duties, resident at Near Srinivasa Takis, Saradhi, Rajam Municipality, Rajam Mandal, Srikakulam District.

5.Kotturu Uma, W/o Malleswararao, aged 55 years, Hindu, Household duties, resident at Vizianagaram District.

6.Jakkam Chandra Kumari, W/o Chidambaram, aged 54 years, Hindu, Household duties, resident at Vizianagaram town and District.

7.Pilla Govinda Rao, S/o late Venkatarao, aged 50 years, Railway employee, resident at Kharagapur, West Bengal

8.Vadigunda Jyothi, W/o late Apparao, aged 48 years, Hindu, Govt. Employee, resident at Visakhapatnam town and district.

9.Pedagopu Sudha, W/o Anandarao, aged 46 years, Hindu, House hold duties, resident at Parlakimidi, Odisha state

10.Pulapa Gowri, W/o Jagadeesh, aged 44 years, Hindu, Household duties, resident at Near Pedasamajam, Saluru, Vizianagaram District. ** Deceased first Plaintiff’s LRs are added as order dated 31.03.2021 in I.A.No.141/2022** … Plaintiffs. AND:

1.Gedela Babu Rao, S/o Raminaidu, Hindu, aged 69 years, resident of Door NO.3-52, Bodduru village, Santhakaviti Mandal, Vizianagarm District.

2.Kodiboyina Suryanarayana, S/o late Krishnarao, Hindu, aged 40 years, Business, Resident of Door NO.2-52, Mallikarjuna colony, Rajam town and Mandal, Vizianagaram District.

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3.Kodiboyina Siva, S/o late Krishnarao, Hindu, aged 29 years, Business, resident of Door No.2-52, Mallikarjuna colony, Rajam town and Mandal

4.Pinninti Mohana Rao, S/o late Suryanarayana, Hindu, aged 49 years, cultivation, resident of Door No.4-26, Gopalapuram, Opp. FCI Godown, Rajam town and Mandal, Vizianagaram District.

… Defendants

The suit is coming on 04.04.2024 for final hearing before me in the presence of Sri T.Seshachary and Sri S.Polarao, Assistant Government Pleader, Ld. Counsels for plaintiff(s) and of Sri R.Ramamurthy, Ld Counsel for defendant(s) and upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This is a suit filed by the plaintiffs for grant of permanent injunction restraining the defendants and their men, agents, and followers from ever interfering with the plaint schedule property of the deceased plaintiff; and for costs of the suit.

2. The brief averments of the Plaint are that:

The plaintiffs are the absolute owners of the plaint schedule property and same was purchased by the deceased plaintiff under registered sale deed dated 27.02.1985 vide document No.571/1985 from Addanki Venkatarao. The deceased plaintiff filed the original sale deed dated 27.02.1985. Since the date of purchase the deceased plaintiff and after her death her LRs are in peaceful possession and enjoyment over the same without any interruption The deceased plaintiff paid the vacant land tax for the year 2017-18 to the concerned authorities. The deceased plaintiff filed the original vacant land tax receipt dated 04.10.2017 issued by the Commissioner, Nagara

Panchayat, Rajam along with the plaint. One Kodiboyina Surappadu 3 OS.NO.72/2018

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purchased the property under registered sale deed in the year of 1940 from Setti Seethamma and subsequently the said Kodiboyina

Surappadu died intestate leaving behind his legal representatives who are Kodiboyina Seethamma, Ramayya, krishna and subsequently, the said legal representative of the Kodiboyina Surappadu who are

Seethamma and others due to need of money, they sold the said property for an extent of Ac.1.00 cents covered under S.No.193/4 under registered sale deed dated 05.02.1985 vide document

No.220/1985 to the Addanki Venkatarao who is the vendor of the plaintiff. The deceased plaintiff filed the certified copy of the registered sale deed dated 05.02.1985 along with the plaint.

The deceased plaintiff further submits that out of such property for an extent of Ac.1.00 cents covered under S.No.193/4 the said

Addanki Venkatarao who is the vendor of the plaintiff sold some extent of property to the deceased plaintiff which is shown as plaint schedule property under the cover of registered sale deed dated 27.02.1985.

Accordingly, the deceased plaintiff is the absolute owner of the plaint schedule property and since then the deceased plaintiff and her LRs are has been peaceful possession and enjoyment over the same without any interruption and what so ever. The deceased plaintiff filed the Encumbrance certificate dated 03.10.2017 issued by Sub

Registrar, Rajam along with the plaint. In the month of November, 2017 the deceased plaintiff intent to make a construction in the plaint schedule property and apply plan to the Commissioner, Nagara

Panchayat and paid necessary fee to the concerned authorities on 12.12.2017. The deceased plaintiff filed the copy of the plan and building permit order. The D2 and D3 are the relatives of the said 4 OS.NO.72/2018

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Kodiboyina Seetamma and the defendants No.1 and 4 are the relatives of the said Kodiboyina Seethamma and the D1 and D4 are the strong followers of the D2 and D3 and they have no right, title, possession and enjoyment over the plaint schedule property and taking advantage of the distance relationship with the plaintiffs vendors, the defendants in the 2nd week of May, 2018 highhandedly openly proclaiming in around the plaint schedule property so also Rajam town that they will trying to trespass into the plaint schedule property of the deceased plaintiff. Hence, the suit.

3. The defendants 1 to 4 filed written statement by denying all the material allegations mentioned in the plaint and alleged that they are not obstructing the construction with the help of D4. The 3rd and 4th defendants never threatening the plaintiff stating that they will implicate the plaintiff in false cases, if the plaintiff make any construction on the plaint schedule land. The defendants have right and title over the plaint schedule property and they are the absolute owners and have been in possession and enjoyment of the plaint schedule land. The first defendant, when he was minor, represented by his mother and guardian filed a partition suit O.S.No.206/1982 on the file of District Munsiff Court, Rajam against Kodiboyana Ramayya,

Kodiboyana Krishna, Kodiboyana Seethamma and Patta Suramma for partition of the joint family property. After full-fledged trial, the court passed preliminary decree on 30.11.1992 granting partition of the suit

A, B schedule properties into three equal shares and allot one such share to the 3rd defendant, 4th defendant, and D1 and that the 1/3rd share of D1 should be divided into four equal shares and be put in possession of the plaintiff 1/12th share, D2 1/12th share, D1 1/12th 5 OS.NO.72/2018

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share and daughter of D2 should be given to 1/12th share (i.e. 1/12th share each ) in the said suit. Pending the suit, D3 K.Seethamma died, her daughter Patta Suramma was added as D4 as LR of deceased D3 in the suit. After decree of the suit, D1 Kodiboyana Ramayya also died.

The plaintiff was in possession and enjoyment of the entire A, B schedule proepryt intehsaid suit. As such, the plaintiff therein did not prefer any final decree proceedings in the suit on the preliminary decree. In the year 2001, Patta Suramma D4 in O.S.No.206/1982 filed final decree petition I.A.No.321/2001 on the preliminary decree and

Judgment dated 30.11.1992 against the plaintiff, his father D2 in the said suit. Pending I.A.No.321/2001 the petitioner Patta Suramma died, her only daughter Koyyana Appamma came on record as 2nd petitioner as sole heir to Patta Suramma. While the final decree petition

I.A.No.321/2001 was pending, the 2nd petitioner Koyyana Appamma and the respondents therein compromised and referred the civil case to Lok Adalath bench, Rajam by filing joint petition by both petitioner and respondents therein. In the presence of the Presiding Officer and two members of Lok Adalat, the dispute was settled and entered into compromise as per the terms the 2nd petitioner received

Rs.1,20,000/- towards value of her share of properties in the plaint A, and B schedule properties from the first respondent therein namely

Kodiboyana Surayanarayana who is the first defendant in the present suit O.S.No.60/2017, in full and final settlement of her rights in the plaint A, B schedule properties and relinquished her rights in favour of first respondent and plaintiff in O.S.No.206/1982 and agreed not to claim any right at any time in future in the plaint A, B schedule properties and the first respondent has to enjoy the share of the 2nd 6 OS.NO.72/2018

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petitioner in the plaint A, B schedule property besides his share with absolute rights. The award in Lok Adalat case 136/2008 dated 05.07.2008 is passed accordingly the final decree petition

I.A.No.321/2001 in O.S.No.206/1982 was closed.

The plaint schedule property in O.S.No.227/2009 is the 2nd and 3rd items of A schedule in O.S.No.206/1982. The plaint schedule land is not in actual possession and enjoyment of the plaintiff. Kodiboyana

Seethamma, Kodiboyana Ramayya and Kodiboyana Krishna have no right to alienate the plaint schedule property to Addanki Venkatarao the vendor of the plaintiff under sale deed dated 05.02.1985 as the schedule property is subject matter of O.S.No.206/1982 which was pending trial by that date. The vendors of the sale deed dated 05.02.1985 have no absolute rights to alienate the plaint schedule land to Addanki Venkata Rao. As such Addanki Venkatarao cannot convey any valid title to the plaintiff herein or to any persons mentioned above. The plaintiff never in possession and enjoyment of the plaint schedule land. The plaint allegations are created by the plaintiff for the purpose of the above suit. The defendants have been paying land revenue to the government for the plaint schedule land and the plaint schedule land is registered in the name of these defendants as enjoyers in the village records. Addanki Venkatarao filed injunction suit O.S.No.227/2009 on the file of Junior Civil Judge,

Rajam against the first defendant for the same schedule land. After full fledged trial, the suit was dismissed on 15.03.2017. Addanki

Venkatarao the plaintiff therein did not prefer any appeal against the decree and Judgment in O.S.No.227/2009. As such, the said decree and judgment became final. At the instance of Addanki Venaktarao, 7 OS.NO.72/2018

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the above suit is filed in the name of the plaintiff who is close relative of Addanki Venkatarao. As such, the above suit barred by Resjudicate and is liable to be dismissed.

The first defendant applied to the Tahsildar, Rajam to survey the land in his possession which he got as per award in I.A.No.321/2001 in O.S.No.206/1982 of A schedule item 2 and 3 on paying necessary survey charges. The Taluk Surveyor surveyed the land and fixed the boundaries and issued the FMB sketch and possession certificate to the first defendant for the plaint schedule land and the plaint schedule land is comprised in S.No.192. The plaint schedule land is the only ancestral land of the defendant under the Ayukattu of Buddepuvani tank in Rajam Mandal.

The plaintiff suppressed the real facts mentioned above and filed the above suit with false allegations with an intention to get ex-parte injunction has not come with clean hands to the court. As such the plaintiff is not entitled for any injunction. The balance of convenience is in favour of these defendants. The first defendant executed registered General Power of Attorney dated 29.01.2012 in favour of

Pinninti Mohan Rao for the schedule land. The Tahsildar and RDO issued Pattadar pass book and title deed in favour of Pinninti

Mohanrao. The land of the first defendant is covered by S.No.192/1 to 5 sub divisions. The Tahsildar on the application of D1, the land was measured and identified and gave possession certificate and FMB copy stating that the land of D1 is comprised in S.NO.192/1 to 5 and

Addanki Venaktarao nothing to do with the schedule land. Addanki

Venkatarao gave wrong survey number and wrong boundaries and 8 OS.NO.72/2018

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created the sale deed and settlement deeds nominally in favour of his relatives.

The 3rd defendant Gedela Baburao purchased land from Pinninti

Mohanrao, a power of attorney holder of D1 under registered sale deed

dated 30.07.2012 for valuable consideration and took possession of the

same immediately and laid fence around the site and levelled the land to height of 3 feet.

Pinninti Mohan as power attorney holder of D1 sold house site to

Kodiboyana Siva under registered sale deed dated 10.07.2014 for valuable consideration and took possession of the site immediately and got approved the house plan by the Nagara Panchayat, Rajam and raised foundation in his site to height of four feet and also filled the site with earth levelled the same and deposited building material in the site and proceeding with the construction. The plaintiff is never in possession and enjoyment of the plaint schedule site. The plaintiff mischievously created some documents with wrong survey number, harassing the defendants to have unlawful gain and the suit is not maintainable under law and prays to dismiss the suit with costs.

4. Basing on the rival contentions of both the parties, the following issues were settled for trial.

1.Whether the plaintiff has been in possession and enjoyment of the plaint schedule property as on the date of filing of the suit?

2.Whether the plaintiff is entitled for permanent injunction as prayed for?

3.To what relief?

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5. To prove the case of the plaintiff, 4th plaintiff herself examined as P.W.1, got examined 2nd plaintiff as P.W.2 and got marked

Ex.s A1 to A5. Ex.A1 is the original registered sale deed dated 27.02.1985 executed by Addanki Venaktarao; Ex.A2 is the original vacant land tax receipt, dated 04.10.2017 issued by the

Commissioner, Nagarapanchayat, Rajam; Ex.A3 is the certified copy of sale deed dated 05.02.1985 executed by Kodiboyina Seethamma and others; Ex.A4 is the Plan and building permit order, dated 12.12.2017 obtained through online and Ex.A5 is the Encumbrance certificate,

dated 03.10.2017 issued by the Sub Registrar, Rajam. On behalf of

the defendants, first defendant himself examined as D.W.1, got examined 2nd defendant as D.W.2, one third party witness to the suit examined as D.W.3 and got marked Ex.s B1 to B12. Ex.B1 is the certified copy of the Award passed by the Mandal Legal Services

Committee, Rajam in I.A.No.321/2001 in O.S.No.206/1982 LAC No.

136/2008 along with schedule; Ex.B2 is the certified copy of Report given by the defendant to the Sub Inspector of Police, Rajam; Ex.B3 is the certified copy of report of Tahsildar, Rajam addressed to the SHO,

Rajam regarding to the land covered by S.No.192-1,2,3,4,5 of Rajam village; and Ex.B4 is the certified copy of FMB sketch for field No.192 demarcating the possession in Sub divisions 1,2,3,4,5 showing in green colour supplied by Tahsildar, Rajam; Ex.B5 is the certified copy of Registered General Power of Attorney executed by D.W.2 and

Kodiboyana Parvathi and others of Golla Veedhi, Rajam; Ex.B6 is the certified copy of Pattadar pass book issued by RDO, Palakonda and

Tahsildar, Rajam in favour of Pinninti Mohanarao; Ex.B7 is the certified copy of Title deed issued by RDO, Palakonda and Tahsildar, 10 OS.NO.72/2018

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Rajam in faovur of Pinninti Mohanarao; Ex.B8 is the certified copy of

Registered sale deed dated 30.07.2012 executed by Pinninti

Mohanarao in favour of Gedela Baburao; Ex.B9 is the certified copy of

Registered sale deed dated 10.07.2014 executed by Pinninti

Mohanarao in favour of Kodiboyana Siva; Ex.B10 is the Certified copy of Approved and Approval of plan issued by commissioner, Rajam in favour of Kodiboyana Siva; Ex.B11 is the certified copy of Judgment in

O.S.No.227/2009 on the file of Junior Civil Judge Court, Rajam dated

15.03.2017 and Ex.B12 is the certified copy of decree and Judgment along with schedule in O.S.No.227/2009 on the file of Junior Civil

Judge, Rajam.

6. Heard the learned counsels for the Plaintiffs and the

Defendants.

7. The learned counsel for plaintiff by submitting his arguments contending that the plaint schedule property was purchased by the first plaintiff through a registered sale deed dated 27.02.1985 from Addanki Venkatarao, since then, the deceased plaintiff has been in peaceful possession and enjoyment of the same.

He further contended that the said Addanki Venkatarao purchased the same through a registered sale deed dated 05.02.1985 from

Kodiboyina Seetamma and others in S.NO.193/4 which is an extent of

Ac.1.00 cents of land. He further contended that since the plaintiff has been in possession and enjoyment of the same in the year 2017 when the first plaintiff intended to construct the house in the plaint schedule property by obtaining the permission from Nagara Panchayat, Rajam, the defendants are no way concerned to the suit schedule property 11 OS.NO.72/2018

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trying to interfere with the peaceful possession and enjoyment of the same. He further contended that the first defendant is the landlord and created a false document and selling away the lands to others by creating false documents. So, the plaintiff being a lady unable to resist the legal acts of the defendants. He further contended that the plaintiff paid the municipal tax to the Nagara Panchayat, Rajam.

During pendency of the suit, the first plaintiff died as such, the legal representatives was impleaded as parties to the suit as Plaintiffs 2 to

10. He further contended that the defendants are no way concerned to the suit schedule property and set up a false plea stating that the plaintiff has no right and title over the plaint schedule property. The documents filed by the plaintiff is no way concerned to the suit schedule property and prays to decree the suit as prayed for.

8. On the other hand, the learned counsel for defendants submitting his arguments contending that the plaintiff has no right and title over the plaint schedule property and the boundaries shown is not correct. He further contended that one Kodiboyana

Suryanarayana who is the 2nd defendant in this suit filed suit

O.S.NO.206/1982 being minor represented by his mother for

partition of the plaint schedule properties and other properties against his paternal grandfather for partition, the same was decreed by the learned Junior Civil Judge, Rajam. Subsequently, I.A.No.321/2001 is filed for passing of preliminary decree. In that suit Patta Suramma, who is the petitioner died as such, her daughter by name Koyyana

Appamma was impleaded in the Final decree petition subsequently, the said FDP was compromised before Lok Adalat on 05.07.2008 and as such, the I.A.No.321/2001 in O.S.No.206/1982 was closed as such, 12 OS.NO.72/2018

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the plaint schedule properties are the absolute owners of the suit schedule properties belongs to the defendant. He further contended that the Addanki Venkatarao filed suit O.S.No.227/2009 against first defendant and others for injunction the same was dismissed on 15.03.2017. So, the said Addanki Venkatarao has no right and title to sell away the plaint schedule property to the plaintiff. He further contended that the Sy.No.192/1,2,3,4,5 is belongs to the defendants and the plaintiff is no way concerned to the land . The plaintiff and others filed the suit with false allegations and prays to dismiss the suit.

9. On perusal of the material on record, on behalf of the plaintiff, P.W.s 1 and 2 were examined and got marked Ex.s A1 to A5.

On behalf of the defendants D.Ws 1 to 3 were examined and got marked Ex.s B1 to B12.

10. Issue No.1 and 2:

Whether the plaintiff has been in possession and enjoyment of the plaint schedule property as on the date of filing the suit? &

Whether the plaintiff is entitled for permanent injunction as rayed for?

At the outset the suit is filed for bear injunction in respect of the plaint schedule property which is an extent of 14 feet East to West and 45 feet north to south situated in S.No.193/4 assessment NO.39 situated in Rajam Nagara panchayat, Latchayyapeta towards northern row, Mallikarjuna colony, bounded by East: Vacant site of Jakkan

Nirmala @ Nirmala; South: Road; West: vacant site of Addanki

Venkatarao and North: Vacant site of Puripanda Satyavathi.

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11. It is well settled law since the suit is bear injunction, the plaintff has to establish the legal right and possession over the plaint schedule property as on the date of filing of the suit. The plaintff has to establish the physical possession as on the date of filing of the suit.

In the case of Balkrishna Dattatraya Galande vs Balkrishna

Rambharose Gupta reported in 2020 (19) SCC 199 where in it was held at Para No.8 and 11 that

8. In a suit filed under Section 38 of the Specific Relief Act, permanent injunction can be granted only to a person who is in actual possession of the property. The burden of proof lies upon the first respondent-plaintiff to prove that he was in actual and physical possession of the property on the date of suit. The First Appellate Court drew inference of the possession of the first respondent-plaintiff from Purshis Ex.-41 and from the circumstances that he has obtained permission from the Corporation for carrying out the repairs. The Commissioner’s report dated 02.11.1988 which was referred to in extensor in the order passed in interlocutory application (Ex.-5) dated 17.10.2005 rejecting the first respondent’s prayer for temporary injunction shows the poor condition of the suit premises prior to filing of the suit RCS No.430/2004. The Commissioner’s report indicates that even after replacing the roof by new tin sheet, the premises was not fit to carry on business.

11. The first respondent-plaintiff has filed the suit under Section 38 of the Specific Relief Act seeking permanent injunction on the ground that he is in actual possession of the suit property. Grant of permanent injunction results in restraining the defendant’s legitimate right to use the property as his own property. Under Section 38 of the Specific Relief Act, an injunction restraining the defendant from disturbing possession may not be granted in favour of the plaintiff unless he proves that he was in actual possession of the suit property on the date of filing of the suit. The earlier suit RCS No.1004/1988 was filed in the year 1988 and it proceeded till 1991. In the present case, the first respondent-plaintiff has to prove his actual possession on the date of filing of suit. The First Appellate Court concluded that the appellant-defendant had failed to prove that the plaintiff has vacated the premises in 1991 after withdrawal of earlier suit RCS No.1004/1988. Contention of the appellant is that a settlement was arrived at between the parties and pursuant to that settlement, the plaintiff has vacated the premises in 1991. This has not been rebutted by the first respondent- plaintiff by adducing substantive evidence. The possession of the plaintiff cannot be based upon the inferences; drawn from circumstances. The plaintiff has to prove actual possession for grant of permanent injunction.

So as per the above citation, the plaintiff has to establish the actual possession over the plaint schedule property.

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12. During pendency of the suit, the first plaintiff died as such,

P.W.s 2 to 10 who are the legal heirs of the first plaintiff are impleaded as L.Rs.

13. To substantiate the version of the case, one Jakkam

Nirmala who is the 4th plaintiff and daughter of deceased first plaintiff examined as P.W.1, her evidence is nothing but replica of the contents of the plaint. Similarly one Bonda Lakshmi who is the 2nd plaintiff and daughter of deceased first plaintiff examined as P.W.2. As seen from the evidence of both P.W.s 1 and 2 who are the own sisters and daughters of the first plaintiff, they deposed with one voice in their chief examination affidavit, that her mother deceased first plaintiff purchased the plaint schedule property through a registered sale deed

dated 27.02.1985 from Addanki Venkatarao, since then her mother

has been in possession and enjoyment of the same. The deceased plaintiff also paid vacant land tax for the year 2017-2018 to the concerned authorities and the Nagarapanchayat, Rajam issued receipt to that effect. Originally the plaint schedule property was purchased by one Addanki Venkatarao through registered sale deed dated 05.02.1985 from Kodiboyina Seethamma and others which is an extent of Ac.1.00 cents of land in S.NO.193/4. Subsequently, the said

Addanki Venkatarao sold the property to the mother of both P.W.s 1 and 2 i.e first plaintiff through registered sale deed dated 27.02.1985.

They further stated with one voice that her mother obtained

Encumbrance certificate dated 12.10.2017 issued by Sub Registrar,

Rajam and also applied house plan to the Nagarapanchayat, Rajam to the concerned dated 12.12.2017 after getting permission for construction of the house the defendant tried to obstruct the plaint 15 OS.NO.72/2018

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schedule property. In those circumstances, the deceased first plaintiff filed the present suit for permanent injunction. Through the evidence of P.W.1, Ex.s A1 to A5 are marked.

14. As seen from the entire cross examination of P.W.s 1 and 2 nothing was elicited to disbelieve the evidence of P.W.s 1 and 2.In the cross examination of P.W.s 1 and 2 it is the suggestion that Addanki

Venkatarao has no right and title to sold away the property and the land which is an extent of Ac.0.56 cents in S.No.192/1,2,3,4,5 is no way concerned to the plaintiff. Except that nothing was elicited in the cross examination of both P.W.s 1 and 2 to disbelieve their evidence.

As seen from the documents filed by the plaintiff i.e Ex.A1 Original

Registered sale deed dated 27.02.1985 purchased by Pilla

Savithramma, W/o Venkatarao from Addanki Venkatarao, S/o

Suryanarayana for valuable consideration of Rs.2,100/- with measurements East to West 14 Feet; North to South : 45 feet which is a house site. In the cross examination of P.W.1 it was elicited that her mother and sister purchased the plots on the same date. So, it is a fact that the first plaintiff and others purchased the house plots from

Addanki Venkatarao. It is not the case of the defendant is that the plaintiff has no capacity to purchase the land. In the cross examination of P.W.2, it was elicited that “my father worked as Sub

Inspector of Police”. So, there is no question about the capacity of the first plaintiff to purchase the plaint schedule property.

15. As seen from the entire cross examination of P.W.s 1 and 2, the learned defendant counsel didn’t denied the existence of Ex.s

A1 to A5. On perusal of the Ex.A3 which is the certified copy of registered sale deed dated 05.02.1985 purchased by Addanki 16 OS.NO.72/2018

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Venkatarao S/o late Narayana from Kodiboyana Seetamma, W/o

Surappadu and others which is an extent of Ac.1.00 cent of land in s.NO.193/4. So, Ex.A1 though, it was not mentioned the survey number as seen from the schedule but in Ex.A2 which is the link document of the Ex.A1 the survey number categorically mentioned as 193/4. Ex.A2 is the house tax receipts for the year 2017-2018 with assessment No.39 was stands on the name of Pilla Savitramma, W/o

Venkatrao i.e first plaintiff herein. Ex.A4 is the house obtained from the Nagarapanchayat, Rajam which shows that the plaintiff applied the house plan with licensed surveyor. Similarly Ex.A5 which is the encumbrance certificate stands on the name of Pilla Savitramma dated 03.10.2017 which reveals that she purchased the property from

Addanki Venkatarao. So, Ex.s A1 to A5 which categorically established that the possession over the plaint schedule property of the plaintiff.

16. It is the contention of the defendant is that the plaint schedule property is not correct, the survey number and its boundaries are not correct. To substantiate the version of the defendant the first defendant examined as D.W.1. In his evidence he deposed that he purchased the land which is an extent of Ac.0.56 cents with different survey numbers i.e S.No.192/1 an extent of

Ac.0.09 cents; S.No.192-2 an extent of Ac.0.14 cents; S.NO.192-3 extent of Ac.0.13 cents; S.No.192-4 extent in Ac.0.13 cents and

S.No.192-5 extent of Ac.0.07 cents total extent Ac.0.56 cents.

Subsequently, one Kodiboyana Parvathi and Kodiboyana

Suryanarayana executed General Power of Attorney to Pinninti

Mohanarao for valuable consideration of Rs.3,34,000/- under registered sale deed dated 30.07.2012. Subsequently, the Tahsildar, 17 OS.NO.72/2018

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Rajam also issued FMB. He further stated that the 2nd and 3rd defendants filed the suit in O.S.NO.206/1982 for partition and the same was compromised in Final Decree petition in I.A.No.321/2011

before Lok Adalat. The Addanki Venkatarao has no right and title to

sell away the plaint schedule property. The plaint schedule property in possession and enjoyment of the same. Through, the evidence of D.W.1 no document was marked.

17. In the cross examination of D.W.1 he categorically stated that “I do not know about the Addanki Venkatarao who is the resident of Menthipeta village. I do not know Pilla Savitramma, Jakkam Nirmala and Bonda Lakshmi purchased the property from Addanki

Venkatarao”. So, this part of the evidence of D.W.1 which is contrary to the chief examination affidavit of D.W.1. So, his evidence is no way helpful to prove the case of the defendant. It is further stated that “it is true one Jakkam Niramala and Bonda Lakshmi filed the suits. He further stated that it is true in the award copy K.Suryanarayana and

K.Seetamma are signed. The property purchased by me is situate din

S.No.192/1,2,3,4,5”. But where as the suit schedule property is situated in S.No.193/4, which is no way helpful to the defendant version.

18. The evidence of D.W.2 who is the 2nd defendant by name

Kodiboyana Suryanarayana, his evidence is nothing but replica of the contents of the written statement so also pleadings of the evidence of

D.W.1. In the written statement he denied about the execution of

General Power of Attorney but whereas in the evidence of D.W.1 he categorically stated that D.W2 and his mother executed General Power of Attorney in the name of Pinninti Mohanarao who is the 4th defendant 18 OS.NO.72/2018

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herein. So, the evidence of defendant witnesses itself shows contrary to each other. In the written statement they specifically denied about the execution fo the alleged General Power of Attorney.

19. As seen from the evidence of D.W.2, his contention is that he filed suit O.S.NO.206/1982 on the file of District Munsiff Court,

Rajam against Kodiboyana Ramayya, Seethamma and Krishna for partition, after full-fledged trial the said suit was decreed on 30.11.1992. Subsequently, in the year 2001 Final Decree Petition is filed in I.A.NO.321/2001, the said FDP was compromised before Lok

Adalat by receiving Rs.1,20,000/- towards her share of Patta Suramma who is the only daughter of Koyyana Appamma. He further stated that the said Koyyana Appamma relinquished share in AB schedule property in the said final decree by receiving money. It is well settled

Law if any immovable property relinquished it is compulsory registereable document. But the defendant did not filed any such document of relinquishment of deed. The plaint schedule property in

O.S.No.227/2009 did not file any document to show the same one and

the same. He further stated that the defendants has been in paying the land revenue to the plaint schedule property but he did not filed those revenue records. The suit O.S.No.227/2009 and present suit schedule property extent is different. The plaint schedule property is a small extent which is house site. In the cross examination of D.W.2 he categorically admitted as follows: “It is true Jakkam Nirmala, Bonda

Laxmi and Pilla Savitramma filed the suits against us for permanent injunction in respect of the plots in S.nO.193/4”.So, this part of the evidence of D.W.2 which categorically established that the plaint schedule property survey number is different property from the 19 OS.NO.72/2018

Dt: 10.04.2024

claiming of the property of defendant in S.No.192/1,2,3,4,5. In the cross examination of D.W.2 he further admitted that “it is true

Addanki Venkatarao sold the house plots to Jakkam Nirmala, Bonda

Laxmi and Pilla Savitramma through a registered sale deeds. The suits filed by Jakkam Nirmala in O.S.No.71/2018 and the suit filed by the

Bonda Laxmi in O.S.No.69/2018 are decreed”. So, the evidence of

D.W.2 which categorically established that the plaint schedule properties has been in possession and enjoyment of the plaintiff. In the cross examination fo D.W.2 he further admitted that “it is true Pinninti

Mohanarao is the nephew of G.Baburao. It is true I executed General

Power of Attorney in favour of Pinninti Mohanarao”. So, the evidence of

D.W.s 1 and 2 is contrary to each other with regarding to the execution of General Power of Attorney. D.W.3 who is the third party to the suit , his evidence is no way helpful to prove that the plaint schedule property and properties claimed by defendants are one and the same and the defendant has been in possession and enjoyment. In the cross examination of D.W.3 he stated that “I do not not know the contents of my chief affidavit as I am an illiterate”. So, his evidence is no way helpful to prove the contention of the defendant.

20. As seen from the documents filed by the defendant i.e

Ex.B1 is the certified copy of award copy dated 05.07.2008 on perusal of it, the schedule and survey number was not mentioned. Similarly

Ex.B2 which is the certified copy of report given by defendant to Sub

Inspector of Police, Rajam, shows that there is no survey number of the plaint schedule property. Ex.B3 is the letter of Tahsildar, Rajam addressed to the SHO, Rajam; Ex.B4 is the Field measurements in

S.No.192. Ex.B5 is the certified copy of General Power of Attorney 20 OS.NO.72/2018

Dt: 10.04.2024

executed by D.W.2 and Kodiboyana Parvathi and others of Golla

Veedhi, Rajam in favour of Pinninti Mohanarao in respect of

S.NO.192/1,2,3,4,5 to an extent of 2710.4 square feet. Ex.B6 is the certified copy of Pattadar pass book in the name of Pinninti Mohanarao in S.No.192/1 to 5. Ex.B7 is the certified copy of title in the name of

Pinninti Mohanarao in S.No.192/1 to 5. Ex.B8 is the certified copy of registered sale deed dated30.07.2012 executed by Kodiboyana Parvathi

W/o late Krishna in favour of Gedela Baburao, S/o late Raminaidu to an extent of 256.66 sq.feet in S.No.192/1 to 5. Ex.B9 is the certified copy of registered sale deed dated 10.07.2014 by Kodiboyana

Paravathi, W/o late Krishna and others in favour of Kodiboyana Shiva,

S/o late Krishna which is an extent of 79.44 sq.feet of site in

S.NO.192/1,2,3,4,5. Ex.B10 is the building permit order which was stands on the name of Kodiboyana Shiva. Ex.B11 is the certified copy of Judgment in O.S.No.227/2009 passed by Junior Civil Judge, Rajam

dated 15.03.2017 and Ex.B12 is the decree copy in O.S.No.227/2009.

So, the documents field by the defendants under Ex.B1 to B12 are no way concerned to the suit schedule survey number.

21. So, as seen from the entire evidence and documents filed by both parties, the plaintiff has established the legal possession, right and title over the suit schedule property as on the date of filing of the suit. In view of the above facts and circumstances considering the material on record the issues are answered in favour of the plaintiff against the defendant.

22. Issue No.3: To what relief

In the result, suit is decreed with costs in favour of the Plaintiffs against the Defendants, by granting Permanent Injunction restraining 21 OS.NO.72/2018

Dt: 10.04.2024

the defendants, their men, agents and followers from ever interfering with the peaceful possession and enjoyment of the Plaintiff over the plaint schedule property.

Dictated to the Stenographer, Gr.III, transcribed by her, corrected

and pronounced by me in open Court, this the 10th day of April, 2024.

Senior Civil Judge

Rajam

APPENDIX OF EVIDENCE

Witnesses Examined

For Plaintiff:

P.W.1: 27.03.2023: Jakkam Nirmala P.W.2: 08.05.2023: Bonda Lakshmi

For Defendant:

D.W.1: 06.11.2023: Gedela Baburao D.W.2: 19.02.2024: Kodiboyana Suryanarayana D.W.3: 07.03.2024: Vavilapalli Jagannadham

Documents Marked

For plaintiffs:

Ex.A1: Original registered sale deed dated 27.02.1985 executed by Addanki Venaktarao Ex.A2: Original vacant land tax receipt, dated 04.10.2017 issued by the Commissioner, Nagarapanchayat, Rajam Ex.A3: Certified copy of sale deed dated 05.02.1985 executed by Kodiboyina Seethamma and others Ex.A4: Plan and building permit order, dated 12.12.2017 obtained through online Ex.A5: Encumbrance certificate, dated 03.10.2017 issued by the Sub Registrar, Rajam.

For defendants:

Ex.B1: Certified copy of the Award passed by the Mandal Legal Services Committee, Rajam in I.A.No.321/2001 in

O.S.No.206/1982 LAC No. 136/2008 along with schedule

Ex.B2: Certified copy of Report given by the defendant to the Sub Inspector of Police, Rajam Ex.B3: Certified copy of report of Tahsildar, Rajam addressed to the SHO, Rajam regarding to the land covered by S.No.192- 1,2,3,4,5 of Rajam village Ex.B4 : Certified copy of FMB sketch for field No.192 demarcating the 22 OS.NO.72/2018

Dt: 10.04.2024

possession in Sub divisions 1,2,3,4,5 showing in green colour supplied by Tahsildar, Rajam Ex.B5: Certified copy of Registered General Power of Attorney executed by D.W.2 and Kodiboyana Parvathi and others of Golla Veedhi, Rajam Ex.B6: Certified copy of Pattadar pass book issued by RDO, Palakonda and Tahsildar, Rajam in favour of Pinninti Mohanarao Ex.B7: Certified copy of Title deed issued by RDO, Palakonda and Tahsildar, Rajam in faovur of Pinninti Mohanarao Ex.B8: Certified copy of Registered sale deed dated 30.07.2012 executed by Pinninti Mohanarao in favour of Gedela Baburao Ex.B9: Certified copy of Registered sale deed dated 10.07.2014 executed by Pinninti Mohanarao in favour of Kodiboyana Siva Ex.B10: Certified copy of Approved and Approval of plan issued by commissioner, Rajam in favour of Kodiboyana Siva Ex.B11: Certified copy of Judgment in O.S.No.227/2009 on the file of Junior Civil Judge Court, Rajam dated 15.03.2017 Ex.B12: Certified copy of decree and Judgment along with schedule in

O.S.No.227/2009 on the file of Junior Civil Judge, Rajam.

Senior Civil Judge

Rajam

1 A.S.No.07/2020

Dated 12.04.2024

IN THE COURT OF THE SENIOR CIVIL JUDGE, RAJAM

Present: Sri M. Babu,

Senior Civil Judge,

Rajam

Friday, this the 12th day of April, 2024. (Dt: 12.04.2024)

Appeal Suit No.07/2020

Between:

Seepana Apparao, S/o Chandra Rao, 45 years, Hindu, Agriculture, resident of Door No.6-60, Vavilapallipeta village, Rapaka Panchayath, Ponduru Mandal, Srikakulam district.

…… Appellant(s)/Plaintiff.

And:

1.Seepana Chandra Rao, S/o late Appanna, aged 70 years, Hindu, Agriculture, resident at Door No.6-73, Vavilapallipeta village, Rapaka Panchayat, Ponduru Mandal, Srikakulam District.

2.Seepana Nagayya, S/o Chandra Rao, aged 45 years, Hindu, Agriculture, resident at Door No.6-73, Vavilapallipeta village, Rapaka Panchayat, Ponduru Mandal, Srikakulam District.

3.Seepana Krishnarao @ Krishna, S/o Chandra Rao, aged 48 years, Hindu, Agriculture, Door No.1-24, Gara peta village, Ponduru mandal, Srikakulam District.]

4.Vavilapalli Srinivasarao @ Srinu, S/o Ramarao, aged 40 years, Hindu, Proprietor of Stone crusher, Vavilapallipeta village, Ponduru Mandal, Srikakulam district. (4th defendant has been added as defendant vide order

dated 28.01.2019 in I.A.No.233/2018

.... Respondents/Defendants

An appeal against the Judgment and Decree, dated 31.12.2019 in

OS.No.74/2015 on the file of the Junior Civil Judge’s Court,

Ponduru.

Between: Seepana Apparao, S/o Chandra Rao, 45 years, Hindu, Agriculture, resident of Door No.6-60, Vavilapallipeta village, Rapaka Panchayath, Ponduru Mandal, Srikakulam district. … Plaintiff(s) 2 A.S.No.07/2020

Dated 12.04.2024

And:

1.Seepana Chandra Rao, S/o late Appanna, aged 65 years, Hindu, Agriculture, resident at Door No.6-73, Vavilapallipeta village, Rapaka Panchayat, Ponduru Mandal, Srikakulam District.

2.Seepana Nagayya, S/o Chandra Rao, aged 40 years, Hindu, Agriculture, resident at Door No.6-73, Vavilapallipeta village, Rapaka Panchayat, Ponduru Mandal, Srikakulam District.

3.Seepana Krishnarao @ Krishna, S/o Chandra Rao, aged 43 years, Hindu, Agriculture, Door No.1-24, Gara peta village, Ponduru mandal, Srikakulam District.]

4.Vavilapalli Srinivasarao @ Srinu, S/o Ramarao, aged 40 years, Hindu, Proprietor of Stone crusher, Vavilapallipeta village, Ponduru Mandal, Srikakulam district. (4th defendant has been added as defendant vide order

dated 28.01.2019 in I.A.No.233/2018

… Defendant(s)

This appeal is coming on 01.04.2024 for final hearing before me in the presence of Sri N.S.R.Murthy and Sri S.Polarao, AGP, Learned Counsels for the Appellant(s)/Plaintiff(s) and of Sri K.Kondalarao, Ld. Counsel for the respondent(s)/Defendant(s) and having stood over for consideration till this day, this Court made the following:

J U D G M E N T

1. This is an appeal filed against the Decree and Judgment in O.S.No.74/2015 dated 31.12.2019 on the file of Junior Civil

Judge’s Court, Ponduru by the unsuccessful Plaintiff.

(i) The Appellant/Plaintiff is hereinafter referred as Plaintiff and the respondent/defendant is referred as defendant for convenient sake.

(ii) This is a suit filed by the Plaintiff against the Defendants 1 to 3 for partition of the plaint schedule item No.s 1 to 7 into three equal shares with metes and bounds and put one such share into the possession of the plaintiff after ejecting the defendant No.s 1 and 2 by allotting each one such share to them and for costs of the suit. Thereafter as the 4th 3 A.S.No.07/2020

Dated 12.04.2024

defendant purchased item No.3 of the plaint schedule e properties, he added in the suit as 4th defendant.

2. The material averments of the plaint are in brief as follows:-

The plaintiff is the elder son of defendant No.1. Defendant No.2 is the youngest son of Defendant No.1 and defendant No.3 is the 2nd son of the first defendant and all of them constitute joint family members of Hindu undivided joint family. The defendant No.1 is the

Kartha of Hindu undivided joint family properties with nucleus of the ancestral properties (item No.s 2 and 5 of the plaint schedule). The first defendant during his childhood days of the plaintiff as well as defendant No.s 2 and 3 went to Nidadhavolu of East Godavari District as there are high rates of agriculture coolie and thereby with the aid and help of defendant No.s 2 and 3, have earned and purchased the rest of the plaint schedule properties at Vavilapallipeta but in the name of first defendant as he is the head and kartha of the joint family. All the parties to the suit used to work together and used to throw the earnings into joint stock and purchased the wet and dry lands at Vavilapallipeta with the joint earnings. The 2nd son of first defendant shown as 3rd defendant after his marriage demanded his share, as such the D1 allotted Ac.0.14 cents and Ac.0.11 cents of land at Vavilapallipeta (not shown in the schedule) and got executed a relinquishment deed from D3 before village elders. So, the D3 is not entitled to any share in the plaint schedule property but he is shown as proforma defendant. The rest of the properties in the plaint schedule are till today kept under joint with the monetary contribution of investment of money of the plaintiff and defendant 4 A.S.No.07/2020

Dated 12.04.2024

No.s 1 and 2 and properties jointly and used to distribute the derived income amicably among the plaintiff, defendant No.s 1 and 2.

The plaintiff recently came to know that contrary to the joint right over the plaint schedule properties with an evil intention of 2nd defendant, first defendant is trying to alienate the schedule properties to others. The plaintiff worked together with other defendants and contributing the capital investment to raise the crops. The plaintiff found change in the attitude of the first defendant, held mediation through elders to allot his legitimate share.

Since the first defendant did not give any food grains or money out of the plaint schedule properties for the last two years, the plaintiff felt that it is no longer safe for him to keep the plaint schedule properties under joint possession. The D4 is the fraudulent purchaser of item

No.3 of the suit schedule property during the pendency of the suit.

The plaintiff got issued a registered legal notice date 25.06.2015 but the first defendant wilfully refused to receive the said notice. 2nd defendant received but did not respond. Hence, the suit.

3. The 1st Defendant filed written statement denying all the averments mentioned in the plaint. He admitted that he is the father of plaintiff and defendant No.s 2 and 3. He stated that he went to Unagatla long back and stayed for a period of 25 years and purchased Ac.0.12 cents house site and got registered in his name and after that he came to his native village Vavilapallipeta and gave the said land to the plaintiff. The joint family was divided and the properties were also partitioned between the joint family and the property ie. Lands and houses which acquired by the D1 divided equally and given to his sons i.e plaintiff, 2nd and 3rd defendants and they are living separately. At the time of partition, all his sons i.e plaintiff, 2nd and 3rd defendants agreed to pay an amount of 5 A.S.No.07/2020

Dated 12.04.2024

Rs.2,000/- each to the first defendant for his maintenance every month.

But they failed to do so, for which, the first defendant filed

M.C.No.20/2015 before this court against plaintiff and defendants 2 and 3.

The plaintiff, 2nd and 3rd defendants are neglecting the first defendant and not providing minimum needs. After partition, the plaintiff is residing at

Unagatla by constructing houses on the sites and staying there and did not come back to Vavilapallipeta at any time. The suit is filed for wrongful loss to the defendants and the suit is not maintenance and not bonafide one since the schedule properties are already partitioned.

4.Defendant No.2 and 3 had not appeared before the court as such they were set ex-parte.

5.The defendant No.4 filed his written statement by denying the material averments in the plaint and stated that the averment that he is the fraudulent purchaser of item No.3 of the suit schedule property during pendency of the suit is false and created with an intention to harass him.

6. As seen from the pleadings and on hearing the counsels of both the parties, the lower court framed the following issues:-

1.Whether the plaint schedule property is the joint family properties claimed by the plaintiff?

2.Whether the plaint schedule property is entitled for partition and if so what extent and whether the plaintiff entitled to his 1/3rd share in it?

3.Whether the first defendant is the kartha of Hindu undivided joint family properties with the nucleus of the ancestral properties of item NO.2 and 5 of plaint schedule or not?

4.Whether the 2nd defendant and 3rd defendant earned rest of plaint schedule properties at Vavilapallipeta and purchased in the name of the D1 as he is head and kartha of family?

5.Whether 2nd son of first defendant shown as 3rd defendant Krishnarao @ Krishna was allotted Ac.0.14 cents and Ac.0.11 cents of land at Vavilapallipeta village towards his share and executed a relinquishment deed from the said Krishnarao or not?

6.Whether the defendant No.4 purchased the item No.3 of the plaint schedule property or not?

7.To what relief?

6 A.S.No.07/2020

Dated 12.04.2024

7. To prove the case of the plaintiff, he himself was examined as P.W.1 and got examined another witness as P.W.2 and also marked Ex.s A1 to A4. Ex.A1 is the registered legal notice;

Ex.A2 is the Postal receipts; Ex.A3 is the unserved postal cover of first defendant and Ex.A4 is the postal acknowledgment. The 4th defendant himself is examined as D.W.1 and no documentary evidence was adduced on his side. No evidence was adduced by the first defendant.

8. Basing on the evidence available on record, the trial court decreed the suit filed by the plaintiff on 31.12.2019 in

O.S.No.74/2015 on the file of Junior Civil Judge’s Court, Ponduru.

Aggrieved by the trial court decree and judgment, the unsuccessful

Plaintiff filed this appeal and the appeal grounds as follows:

1.The decree and Judgment is not in accordance with law, weight of evidence, facts and circumstances of the case.

2.That the lower court ought to have seen by taken into consideration the true pleadings, oral and documentary evidence adduced on behalf fo the plaintiff who filed the suit for partition into three equal shares. Instead of allowing the suit as prayed for erroneously dismissed the same only on the lame ground that the plaintiff did not prove his case.

3.The First defendant is being head of the family Karta and father of appellant as well as father of the 2nd and 3rd respondents migrated to West Godavari where plenty of agriculture works available and out of the joint earnings of all of them the plaint schedule properties were earned but registered in the name of the father of the appellant. The R1 posing as if those are ancestral properties sell away some of the items to R4 during pendency of the suit.

4.The trial court rightly framed the issues but miserably failed to appreciate those issues with reference to facts and law.

5.The D1/R1 appeared before the trial court and simply filed his written statement where as R2 and R3 set ex-parte at an initial stage. But the R1 failed to examine himself or else examined any witness or else filed single scrap of paper to prove his contention.

6.The trial court erroneously came to know that the partition among the joint family already affected. To prove the same the R1 did not say either orally or else filed any document to prove the same

7.The appellant nowhere says that the suit schedule properties are ancestral properties but the trial court in its judgment mentioned 7 A.S.No.07/2020

Dated 12.04.2024

in paragraph 11 as ancestral properties. Out of plaint schedule the item No.2 and 5 are only the ancestral properties but not rest of the items of the plaint schedule which were purchased in the name of R1 but with joint earnings of the appellant as well R1 to R3 as they were migrated to Patamata and out of all of their joint earnings they earned but stands in the name of R1 who is head of family.

8.The trial court in several places of its judgment pointed out that the plaintiff failed to prove the same that the plaint schedule properties are joint family properties. The same was admitted by the R1 in his chief affidavit. The trial court ignored the same.

9.The trial court hold the small mistake in its judgment page 5 that the pleadings are not co-relating with the evidence. But failed to grasp the true Bhava of the plaintiff/appellant. Rather the findings of the trial court in the same paragraph is not supported by documentary evidence let in by first respondent with regarding suggestion put by the counsel of the R1 in the cross examination of P.W.1.

10.In its core part of judgment the trial court relied on whims and fancies but not with support of evidence. It reveals in its judgment page 5 mentioned would have partitioned their properties is ghostly mistake committed by the trial court.

11.The entire judgment is most erroneous and not according to the case facts and totally disbelieved the version f the appellant also disbelieved the evidence of P.W.2.

12.The trial court misconceived so far the share of R3 he took his share from R1 and executed relinquishment deed for which the plaintiff failed to file the same before the court of law is reveals how the trial court came to such conclusion as it is beyond its control since it is unregistered one rather the R3 and R2 set ex- parte. Non mentioning of its discretion allotted to R3 is un-sound finding.

13.The total trial court finding is based on that the appellant failed to prove that there exist the plaint schedule properties in the name of the first defendant. It seems that the trial court did nto saw the pleadings of the R1.

14.The cited quotations by the trial court are not cogent to the instance case; rather non mentioning the case laws filed along with a memo by the appellant is based one. It implies that the trial court mechanically dismissed the suit by not holding the just decision

15.With regarding 13th and 15th paragraphs in its page No.6 wholly not according to law and it is mistake of fact in none filing the fraudulent purchasers sale deed and the same will be file before the court as additional evidence.

16.There were no separate findings for the issues framed but the answer for the issuenNo.1 is linked up with other different issues framed by the trial court and the appellant prays to court to set aside the judgment dated 31.12.2019 in O.S.NO.74/2015 on the file of Junior Civil Judge, Ponduru by allowing this appeal as prayed for with costs in the interest of Justice.

9. Arguments heard. Perused the material and evidence 8 A.S.No.07/2020

Dated 12.04.2024

10. As seen from the pleadings, appeal grounds, evidence on record and on hearing the arguments, the following points are raised for consideration:-

i)Whether the trial court has committed any illegality or irregularity in dismissing the suit vide OS.No.74/2015 dated 31.12.2019 on the file of Junior Civil Judge’s Court, Ponduru and thereby this court warrants interference with the findings and observations made by the lower court while delivering the judgment in the said suit?

ii)To what relief?

11. POINT No.1 and 2 :

The learned counsel for Appellant/plaintiff counsel by submitting his arguments contending that the trial court failed to observe that the plaintiff and defendants constitute joint family and earned properties, out of item No.2 and 5 of the plaint schedule properties. He further contended that the trial court ought to have decree the suit pertaining the plaint schedule property, but erroneously dismissed the same. He further contended that the trial court failed to observe the item No.2 and 5 of the plaint schedule properties are ancestral properties out of which, the respondents 1 to 3 acquired the same by migrating to East Godavari District and earned other properties. The trial court failed to refer the citations submitted by the appellant/plaintiff in the trial court. The trial court ought to have disbelieve the evidence of D.W.1 and prays to allow the appeal. To prove the contention of the plaintiff, the learned counsel

for appellant/plaintiff relied on the following citations

i)A citation reported in 2008(3) ALT 468 between Ravada Yerranna (died) Per L.Rs Vs. Ravada Thammunaidu (died) per L.R.s and others, wherein it was held that “Injunction suit – Burden of proof as to nature of property – Relevancy – Plaintiff claiming the suit property as his self-acquired property – While admitting ancestral 9 A.S.No.07/2020

Dated 12.04.2024

nucleus, plaintiff asserting that it was not sufficient to purchase suit properties – First defendant claiming the suit schedule properties as joint family properties – Plea taken by plaintiff that burden of proof lies on first defendant to prove that the suit properties were purchased by ancestral nucleus – Both parties led evidence in support of their respective case – In the circumstances of the case on whom burden lies – Not relevant – It becomes a mere academic issue – When there is evidence of parties, conflicting evidence can be weighed to determine the nature of property.

ii)Also relied on another decision reported in Kasaram Jayamma and another Vs. Jajala Lakshmamma and others wherein it was held that 2008(3) ALT 104 (D.B.), wherein it was held that Hindu Law – Partition – Joint family property – Admitted facts – Joint family consisting of father and sons existing – Father got 80 cents of wet land, gold and cash in family partition between him, his father and brothers in 1933 – Father used to maintain bullock carts and also cultivated about 7 acres of land of others on lease – Father purchased certain immovable properties in 1938 for Rs.200/- from out of income received from existing property – Contention of appellants- contesting defendants that income from 80 cents of land was insufficient to purchase the aforesaid property rejected by courts below having regard to price index, cost of living and price properties in those days – Both the courts below concurrently found that both those properties became available as joint family nucleus to purchase suit schedule properties by father while living together with his sons and drawn a presumption that suit A and B schedule properties were joint family properties – The said finding upheld on a consideration of entire evidence – Plea taken by appellants that two settlement deeds and Will executed by deceased father, show that they were his self-acquired properties and that therefore finding of courts below that suit properties are joint family properties is erroneous - plea not accepted – Held: Recital in a document by a dead person though relevant not sufficient evidence to establish that fact – Some other evidence must be available to substantiate the same - Plaintiff pleading that those alienations are not valid and binding on them – No lapses on the part of plaintiffs in questioning the same – Plaintiff need not specifically seek for setting aside those alienations – They can seek such declaration in partition suit filed by them – Held that plaintiff successfully discharged their burden of establishing that joint family possessed sufficient nucleus out of which plaint A and B schedule properties were acquired – No evidence adduced by appellants – defendants to rebut the said evidence – Preliminary decree for partition of A and B schedule properties passed by Courts below – Justified.

Relying on those citations, the learned counsel for appellant/plaintiff prays to set aside the decree and Judgment passed by the Junior Civil Judge, Ponduru in O.S.No.74/2015 dated 31.12.2019.

10 A.S.No.07/2020

Dated 12.04.2024

12. On the other hand, the learned counsel for respondent/defendant by submitting his arguments contending that the trial court after appreciation of evidence and documents properly dismissed the suit. He further contended that the first respondent/defendant acquired property by migrating to East

Godavari District subsequently, he partitioned the properties between his sons. But, the appellant and first respondent sons did not looked after the first defendant as such, he filed the maintenance case on the file of Judicial First Class Magistrate, ponduru vide

M.C.No.20/2015. The appellant/plaintiff agreed to take Ac.0.12 cents

of site and the house therein in Ungatla village, East Godavarit district and there has been residing in the same. So, the property which was already acquired by first defendant which was partitioned to his sons so, again the suit for partition is not maintainable. He further contended that the parties are not impleaded, so there are no sufficient grounds to allow the appeal and prays to dismiss the appeal.

13. On perusal of the material on record, the present appeal is preferred against the Judgment in O.S.No.74/2015 passed by the

Junior Civil Judge, Rajam dated 31.12.2019, aggrieved by the plaintiff which was dismissed the said suit presented appeal by the appellant/plaintiff.

14. For the sake of convenience of both parties arrayed as a trial court parties.

15. On perusal of the material on record, in the trial court, on behalf of the plaintiff P.W.s 1 and 2 were examined and got marked 11 A.S.No.07/2020

Dated 12.04.2024

Ex.s A1 to A4. On behalf of the defendants, 4th defendant himself examined as D.W.1 and no documents were marked.

16. At the outset, the suit is filed for partition of the plaint schedule properties consisting item No.1 to 7 into three equal shares and allot one such share to the plaintiff.

17. Now the brief evidence of the plaintiff witnesses is as follows:

i) To substantiate the version of the plaintiff, the plaintiff himself examined as P.W.1 and his evidence is nothing but replica of the contents of the plaint. As seen from the evidence of P.W.1 further goes to show that first defendant being Kartha of Hindu undivided joint family properties with the nucleus of ancestral properties i.e item No.2 and 5 of the plaint schedule properties. The first defendant during his childhood days went to Nidadhavolu, East Godavari district for coolie as there are high rates of agriculture coolie rates and plenty of work available, thereby with the aid and help of himself and the D2 and D3 earned the rest of plaint schedule properties at

Vavilapalli village but purchased in the name of D1 as he is head of the family and karta of joint family. He further stated that all the parties to the suit worked together and used to earn in joint status and purchased the property. The second son of the first defendant who was shown as 3rd defendant by name Kartha after his marriage when he demanded for his share the first defendant allotted Ac.0.14 cents of land and Ac.0.11 cents of land at Vavilapallipeta village towards his share and first defendant executed the relinquishment deed before the villagers from Krishnarao. The rest of the properties 12 A.S.No.07/2020

Dated 12.04.2024

are still in joint possession. He further stated that when the defendants tried to alienate the plaint schedule properties with a malafied intention got issued legal notice to the defendant dated 25.06.2015. But, the first defendant refused willfully, the 2nd defendant did not received legal notice as such, he filed the suit for partition. Through the evidence of P.W.1, Ex.s A1 to A4 are marked.

ii) One Gubbala Suryanarayana who is the third party to the suit examined as P.W.2, his evidence also corroborating with the evidence of P.W.1 as in the same lines and also corroborating all the material aspects.

18. Now the brief evidence of defendant witnesses is as follows:

The 4th defendant by name Vavilapalli Srinivasarao examined as

D.W.1, in his evidence he deposed that the plaintiff filed the suit with false and collusive allegations without verifying the records in order to harass the 4th defendant He further stated that he purchased the item No.3 of the plaint schedule property as such she was added as unnecessary party. He further stated that the plaintiff and defendants are native of Vavilapallipeta village. First defendant being kartha of Hindu undivided joint family properties with nucleolus of properties in item No.2 and 5 of plaint schedule properties. The first defendant went to Nidadhavolu, East Godavari District for coolie work after marriage of 3rd defendant on the demand he allotted Ac.0.14 cents and Ac.0.11 cents to his son byname Krishna after his marriage and also executed relinquishment deed and there is no cause of action arose to file the suit and prays to dismiss the suit.

13 A.S.No.07/2020

Dated 12.04.2024

19. POINT No.1:

It is well settled Law since the suit is filed by the plaintiff for partition stating that the plaint schedule properties are still in joint family properties and as in joint possession. As per section 101 of

Indian Evidence Act it is burden of duty lies on the plaintiff that he has to prove that the plaint schedule properties are still in joint possession.

20. In the case of Bhagwath Saran Vs. Purushottam reported in 2020(6) SCC 386 which was held that the burden of proof regarding the Hindu undivided family properties is on the person who alleged existence of Hindu undivided family to prove the same.

Similarly in the case on hand, the contention of the plaintiff is that the plaint schedule properties are Hindu joint family properties, the first defendant being Kartha of the Hindu family used to maintain the property. Apart from the oral evidence of P.W.s 1 and 2 no document was filed to prove that the plaint schedule properties are still in joint possession. In the cross examination of P.W.1, he categorically stated that “I am residing at West Godavari District since my childhood myself along with my brothers used to reside therein”. So as per the admission of P.W.1 it was categorically established that first defendant migrated to East Godavari District and residing there.

In the entire evidence in chief affidavit of P.W.1 as well as in the plaint pleadings there is no whisper about the migration of plaintiff and his father to the West Godavari District. In the cross examination of P.W.1 he further stated that “it is true the partition took place in my presence and the said properties were given to 3rd defendant”. So 14 A.S.No.07/2020

Dated 12.04.2024

as per the admission of P.W.1 it was categorically established that as per the contention of the defendant the partition was already taken place and Ac.0.12 cents and Ac.0.11 cents were given to the 3rd defendant. In the cross examination of P.W.2 he stated that “ I came to court on request of the plaintiff except that nothing was stated. In the evidence of D.W.1 nothing was elicited. In the cross examination of D.W.1 he deposed that “I do not know whether my father Ramarao has purchased the property under registered sale deed dated 10.05.2018 consisting of two items of suit schedule properties from first defendant or not”. As seen from the evidence of P.W.1 and plaint pleadings it was specifically stated that the 2nd son of the first defendant who was shown as 3rd defendant in the suit by name

Krishnarao @ Krishna after his marriage on his demand for his share the first defendant allotted Ac.0.14 cents of land and Ac.0.11 cents of land at Vavilapallipeta village towards his share. But the said document was not filed. However as discussed above in the cross examination of P.W.1 he specifically admitted about the property given to first defendant son i.e 3rd defendant. But those items were not shown in the plaint schedule properties. It is the specific pleadings of the written statement of the first defendant is that the partition was already taken place and Ac.0.12 cents of house site was given to the plaintiff at Vungatla at about 25 years back and they have been staying therein. In the cross examination of P.W.1 he admitted the same about residing in the Ungatla village of East

Godavari district. It is also admitted fact that the first defendant filed the maintenance case against his sons i.e plaintiff, 2nd and 3rd defendants on the file of Judicial Magistrate of I Class, Ponduru. In 15 A.S.No.07/2020

Dated 12.04.2024

the entire evidence of D.W.1 the said fact was not denied. Though,

D.W.1 who is the first defendant was not examined, the initial burden has to be discharged by the plaintiff to show that the plaint schedule properties is still in joint possession and enjoyment of the same but failed to prove the same. The plaintiff did not impleaded all the parties to the suit.

21. On close reading of the citations referred by the plaintiff counsel is not applicable to the case on hand. Since the plaintiff didn’t file any documentary proof regarding the joint possession of the plaint schedule properties and also the plaintiff did not adduce any evidence to show that the item No.2 and 5 of the plaint schedule properties are ancestral properties out of nucleus the plaintiff and defendants acquired the remaining of properties. If really item No.2 and 5 of the plaint schedule properties are ancestral nucleus the children’s of the plaintiff and 2nd,. 3rd defendants would have been impleaded as a parties to the suit they are the co-sharers of item No.

2 and 5 of the plaint schedule properties. But the plaintiff did not implead any of them in this suit. So also as per the evidence of P.w.1 itself shows that there is oral partition taken place and acted upon.

In a suit for partition all the parties if not added it is a bad for non joinder of necessary parties. If the co-sharers in the joint families are not made parties to the suit and suit is liable to be dismissed. In view of the above facts and circumstances, considering the material on record the points are answered accordingly.

22. On perusal of the Judgment passed by the trial court rightly appreciated all the facts with evidence and documents 16 A.S.No.07/2020

Dated 12.04.2024

filed by the plaintiffs and rightly dismissed the suit. Hence, this court does not interfere into the Judgment and decree passed by the Junior

Civil Judge, Ponduru in O.S.No.74/2015 dated 31.12.2019

23. POINT No.2: In the result, the appeal suit is dismissed without costs by confirming the judgment and decree passed by the Junior Civil Judge, Ponduru in O.S.No.74/2015 dated 31.12.2019.

Dictated to the Stenographer Gr.III, transcribed by her

corrected and pronounced by me in open Court, this the 12th day of April, 2024.

Senior Civil Judge,

RAJAM.

APPENDIX OF EVIDENCE

No oral and documentary evidence is adduced on either side of the parties

Senior Civil Judge,

RAJAM.

1 A.S.No.04/2021

Dated 27.03.2024

IN THE COURT OF THE SENIOR CIVIL JUDGE, RAJAM

Present: Sri M. Babu,

Senior Civil Judge,

Rajam

Wednesday, this the 27th day of March, 2024 (Dt: 27.03.2024)

Appeal Suit No.04/2021

Between:

1.Karanam Srinivasa Rao, S/o Satyam Naidu, aged 38 years, Hindu, Cultivation, residing at Majji Ramudupeta, Hamlet of Appapuram village, Regidi Amadalavalasa Mandal, Srikakulam District.

2.Correspondent, Sri Sai Srinivasa Vidya Mandir, represented by Gorle Govindarao, S/o late Suryanarayana, aged 40 years, Hindu, Residing at Chinnayyapeta village, Regidi Amadalavalasa Mandal, Srikakulam District. …… Appellant(s)/Defendant(s)1 and 2.

And:

1.Nilurouthu Annapurnamma, W/o late Satyam Naidu, aged 60 years, Hindu, Cultivation, residing at Majji Ramudupeta, Hamlet of Appapuram village, Regidi Amadalavalasa mandal, Srikakulam District.

2.Kemburu Swathi, W/o Rama Krishna, aged 30 years, Hindu, Employee, residing at Dolapeta village, Rajam mandal, Srikakulam District.

.... Respondents/Plaintiffs 1 and 2

3.Mandal Educational Officer, mandal Parishad, Regidi Amadalavalasa mandal, Srikakulam District.

4.District Educational Officer, Srikakulam district. (The respondents 3 and 4 are nominal parties and they are the defendants in O.S.No.01/2013) …Respondent(s)/Defendant(s) 3 and 4.

An appeal against the Judgment and Decree, dated 30.12.2019 in

OS.No.01/2013 on the file of the Junior Civil Judge’s Court,

Rajam.

Between:

1.Nilurouthu Annapurnamma, W/o late Satyam Naidu, aged 60 years, Hindu, Cultivation, residing at Majji 2 A.S.No.04/2021

Dated 27.03.2024

Ramudupeta, Hamlet of Appapuram village, Regidi Amadalavalasa mandal, Srikakulam District.

2.Kemburu Swathi, W/o Rama Krishna, aged 30 years, Hindu, Employee, residing at Dolapeta village, Rajam mandal, Srikakulam District. … Plaintiff(s)

And:

1.Karanam Srinivasa Rao, S/o Satyam Naidu, aged 38 years, Hindu, Cultivation, residing at Majji Ramudupeta, Hamlet of Appapuram village, Regidi Amadalavalasa Mandal, Srikakulam District.

2.Correspondent, Sri Sai Srinivasa Vidya Mandir, represented by Gorle Govindarao, S/o late Suryanarayana, aged 40 years, Hindu, Residing at Chinnayyapeta village, Regidi Amadalavalasa Mandal, Srikakulam District.

3.Mandal Educational Officer, mandal Parishad, Regidi Amadalavalasa mandal, Srikakulam District.

4.District Educational Officer, Srikakulam district.

… Defendant(s)

This appeal is coming on 25.03.2024 for final hearing before me in the presence of Sri C.P.Naidu, Learned Counsel for the Appellant(s)/Defendant(s) 1 and 2 and of Sri K.Kondalarao, Ld. Counsel for the respondent(s)/Plaintiff(s) 1 and 2 and having stood over for consideration till this day, this Court made the following:

J U D G M E N T

1. This is an appeal filed against the Decree and Judgment in O.S.No.01/2013 dated 30.12.2019 on the file of Junior Civil

Judge’s Court, Rajam by the unsuccessful defendants 1 and 2.

(i) The Appellant/defendant is hereinafter referred as defendant and the respondent/plaintiff is referred as plaintiff for convenient sake.

(ii) This is a suit filed by the Plaintiffs against the Defendants to declare their title over the plaint schedule land, for consequential relief of recovery of possession and also to grant subsequent profits on it.

3 A.S.No.04/2021

Dated 27.03.2024

2. The material averments of the plaint are in brief as follows:-

The first plaintiff is the mother of the 2nd plaintiff. The husband of the first plaintiff and father of 2nd plaintiff i.e Nilurothu

Satyamnaidu died in the year 2003 and the plaintiffs are his only legal heirs. The plaint schedule land is the dry land measuring

Ac.1.16 cents situated in Sy.No.7/16 of Kondamamidivalasa village,

RA Valasa Mandal and it is the ancestral property of the deceased

Nilurothu Satyamnaidu who is the only son of his father

Appalanaidu. Nilurothu Satyamnaidu raised crops and enjoyed the plaint schedule land during his life time without any interruption.

His name is also mentioned in the revenue records. After his death, the plaintiffs are continuing in possession of the plaint schedule property and the revenue authorities issued pattadar pass book and title deed passbooks in favour of the first plaintiff. The first plaintiff also obtained a Kissan Credit Card from the Primary Agricultural

Society, Sankili. The plaintiffs are the absolute owners of the plaint schedule land. After the death of her husband, the plaintiffs are getting the land cultivated through hired labour as they are unable to look after the properties as first plaintiff is alone and 2nd plaintiff was married and living with her husband. Taking advantage of the above situation, the first defendant being a leader of Telugu Desam Party, with evil intention to grab the plaint schedule land, trespassed and got raised temporary sheds and started school four years back by misrepresenting the ownership of the land of the plaintiffs. The 3rd and 4th defendants on misrepresentation made by first and 2nd 4 A.S.No.04/2021

Dated 27.03.2024

defendants granted permission to the 2nd defendant to run the school. Defendant No.1 and 2 are only trespassers and their occupation is illegal and they have no right to continue in possession of the said land, which absolutely belongs to the plaintiffs.

After having known the illegal occupation, the plaintiffs got issued registered legal notice to the defendants. They also intimated about the unauthorized occupation of defendants 1 and 2 to District

Collector, Mandal Revenue Officer and Mandal District Officer, RA

Valasa. Defendant No.s 3 and 4 gave reply that they are not aware about the ownership of the land and stated to settle the dispute

before the revenue authorities. Again the first plaintiff got issued

another legal notice to the defendants. The defendant No.s 1 and 2 are realizing huge profits over the said land by running school unauthorizedly without any right. Defendant No.3 and 4 are added as only formal parties. Hence, defendant No.1 and 2 have to be evicted from the plaint schedule land by delivering the property to the plaintiffs. The plaintiffs are also entitled for profits for a period of 28 months over the plaint schedule property. Hence, the suit.

3. The 1st Defendant filed his written statement which was adopted by the 2nd Defendant on filing adoption memo and they denied all the material averments except the relationship between both the plaintiffs and deceased Nilurouthu Satyamnaidu. It is stated that the first plaintiff’s husband is the maternal uncle of the first defendant. The plaintiffs husband have no properties in the village. The plaint schedule properties are the ancestral properties of first defendant and his father cultivated the plaint schedule land and raised mango tope and teak trees in it. The revenue authorities also issued pattadar pass book and title deed in favour of first defendant in respect of the plaint schedule land along with other 5 A.S.No.04/2021

Dated 27.03.2024

lands and paid cist to the Government. The first defendant established

Educational Institution under the name and style of Sri Sai Srinivasa Vidya

Mandir in the year 1999 and he leased out the educational institution to the 2nd defendant from 09.06.2010 to 08.06.2015 for an amount of

Rs.4,000/- per year. The first defendant is the absolute owner of the plaint schedule land and have got right and title over it. The plaintiffs are the puppets in the hands of 2nd plaintiff’s husband. After leasing out the educational institution, at his instigation, the plaintiffs filed the suit to gratify money from the first defendant. Further the first plaintiff filed suit in O.S.No.121/2011 against the fist defendant and his family members and the suit is pending before the court. The suit documents were created by the plaintiffs for the purpose of filing of the suit. The plaintiffs never cultivated the plaint schedule land and have no right or possession over the plaint schedule land. The suit is not maintainable under law and not bonafide one and there is no cause of action for the suit and prays to dismiss the suit with costs.

4. Defendant NO.3 filed written statement and the contents of the same was adopted by the 4th defendant and both of them admitted that the 2nd defendant filed an application before the 4th defendant for granting permission to run a school and it was allowed by issuing a proceeding and granting permission for 2011-2012. The 2nd defendant produced a copy of lease deed dated 09.06.2010 executed by first defendant in his name.

further he has not filed any renewal application before the 4th defendant for sanction of recognition for running the school. They admitted that the plaintiffs issued notice to them and they gave a reply on 18.07.2011. They stated that they are no way related to the land dispute. Further, the suit is not maintainable under law and the cause of action for the suit does not arise. This court has no jurisdiction to entertain the suit as per the A.P.

6 A.S.No.04/2021

Dated 27.03.2024

Educational Institutional Rules 1993 and prays to dismiss the suit with costs.

4. As seen from the pleadings and on hearing the counsels of both the parties, the lower court framed the following issues:-

1.Whether the plaintiffs are the absolute owners of the plaint schedule property?

2.Whether the plaintiffs are entitled for delivery of the vacant possession of the plaint schedule property from the defendants 1 and 2 ?

3.Whether the plaintiffs are entitled sum of Rs.9,333/- towards rent in respect of the plaint schedule property?

4.Whether the plaintiffs are entitled for the mesne profits as prayed for?

5.To what relief?

5. To prove their contentions, the first plaintiff herself examined as P.W.1, got examined four other witnesses as P.W.s 2 to 5 and got marked Ex.s A1 to A12 on her behalf. Ex.A1 is the Adangal copy of Kondamamidivalasa dated 07.03.2012 issued by MRO, RA

Valasa; Ex.A2 is the No.3 computerized adangal copy for fasali 1421 issued by MRO, RA Valasa; Ex.A3 is the Pahani account copy of plaint schedule property for fasali 1416, 1417 and 1418 issued by

VRO, Kondamamidivalasa; Ex.A4 is the office copy of legal notice issued to District Collector, Srikakulam dated 04.06.2011; Ex.A5 is the Reply notice given by MEO, RA Valasa; Ex.A6 is the Reply notice given by DEO, Srikakulam dated 18.07.2011; Ex.A7 is the office coy of legal notice issued to D1 and D2 dated 10.06.2012; Ex.A8 is the refused legal notice cover of D1; Ex.A9 is the Reply notice given by D2

dated 30.06.2012; Ex.A10 is the office copy of legal notice issued to

D1 and D2 dated 29.06.2011; Ex.A11 is the Title deed in the name of husband of first plaintiff and Ex.A12 is the certified copy of pattadar pass book issued by MRO, RA Valasa. On behalf of the defendants, first defendant examined himself as D.W.1 and examined two other 7 A.S.No.04/2021

Dated 27.03.2024

witnesses as D.W.s 2 and 3. The 2nd defendant himself examined as

D.W.4 and 3rd defendant got examined the Mandal Education Officer as D.W.5. D.W.1 got marked Ex.B1 to prove his case. Ex.B1 is the

Pass Book.

6. Basing on the evidence available on record, the trial court decreed the suit filed by the plaintiff on 30.12.2019 in

O.S.No.01/2013 on the file of Junior Civil Judge’s Court, Rajam.

Aggrieved by the trial court decree and judgment, the unsuccessful defendant filed this appeal and the appeal grounds as follows:

1.The decree and Judgment dated 30.12.2019 passed by the Junior

Civil Judge Court, Rajam is contrary to law, weight of evidence and

probabilities of the case

2.The lower court erred in law and fact in decreeing the suit.

3.The lower court erred in not properly appreciating the case of the defendants and ought to have seen the evidence of P.W.1 to P.W.5 that they did not produce in compliance to their case

4.The lower court ought to have seen that whether the documents i.e Ex.A1 to A12 are relating to the suit schedule and or not and erroneously believed the documents Ex.s A1 to A12 ad decreed the suit.

5.The lower court ought to have observed the relationship between the plaintiffs and defendants and living jointly.

6.The lower court ought to have observed that the educational institute was started by first defendant in the year 1999 and at the time of the Education Institution started by D1 in the year 1999 the husband of first plaintiff was alive.

7.The lower court ought to have observed that as per he evidence of P.W.1, the husband of fist plaintiff was died in the year 2003 and why the husband of first plaintiff trying to stop the starting of education institution by first defendant in the year 1999.

8.The lower court should have seen that when P.W.1 admitted in her cross examination that D1 established his school in the year 1999 which disclosed as per admission the right of adverse possession conferred on the first defendant as it is a legal aspect of the title of P.W.1 according to law.

9.The lower court should have seen that when the plaintiff averred in the plaint that the plaint schedule site in Sy.No.7/16 is not a vacant site by the time of filing of this suit as per admission, D.W.1 established and running in the permanent slabbed rooms since 1999. So, the plaint schedule cannot be considered as vacant site. So, the lower court also erred instead of by directing the mandatory direction to demolish the permanent class rooms 8 A.S.No.04/2021

Dated 27.03.2024

on the plaint schedule and therefore prays to set aside the decree and Judgment of lower court and allow the appeal with costs.

7. Arguments heard. Perused the material and evidence

8. As seen from the pleadings, appeal grounds, evidence on record and on hearing the arguments, the following points are raised for consideration:-

i)Whether the plaintiff is entitle for declaration and possession over the plaint schedule property?

ii)Whether the trial court has committed any illegality or irregularity in decreeing the suit vide OS.No.01/2013 dated 30.12.2019 on the file of Junior Civil Judge’s Court, Rajam and thereby this court warrants interference with the findings and observations made by the lower court while delivering the judgment in the said suit?

iii)To what relief?

9. POINT No.1 and 2 :

The learned counsel for appellants/D1 and D2 by submitting arguments contending that the trial court failed to appreciate the evidence of the P.W.s 1 to 5 and wrongly decreed the suit instead of dismissing the same. He further contended that the trial court failed to appreciate the relationship between both parties. The trial court failed to observe that the first defendant established the school in the year 1999 and the appellant has been in adverse possession and the same was failed to observe by the trial court. The trial court ought to have believe the evidence of D.W.s 1 to 5 and Ex.B1. He further contended that the plaint schedule property is the ancestral property of the defendant. He filed the Ex.B1 pattadar pass book which shows that the plaint schedule properties are ancestral property of the defendant and prays to allow the appeal by setting aside the decree 9 A.S.No.04/2021

Dated 27.03.2024

and Judgment passed by the trial court in O.S.NO.01/2013 on the file of Junior Civil Judge, Rajam dated 30.12.2019.

10. On the other hand, the learned counsel for respondent/plaintiff by submitting his arguments contending that originally the plaint schedule property is belongs to the husband of the first plaintiff which is their ancestral property. The husband of the first plaintiff ie. Satyamnaidu is only the son to his parents after death of the first plaintiff husband, the first plaintiff and 2nd plaintiff who is her daughter has been in peaceful possession and enjoyment of the same. He further contended that the revenue authorities issued pattadar pass book and title deed on the name of the first plaintiff. The 2nd plaintiff working as a Teacher in Kasturibha School residing with her husband. Taking advantage of the same the plaintiffs are being women, the defendants 1 and 2 highly occupied the plaint schedule property and erected sheds and run the school.

He further contended that Ex.B1 which is the pattadar pass book which is only created one there is a correction and manipulated in survey number of the plaint schedule property. On perusal of the

Ex.B1 which categorically established that there is a material alteration so, the trial court after appreciation of the entire evidence and documents rightly decreed the suit and there is no grounds to allow the appeal and prays to dismiss the appeal.

11. On perusal of the material on record, the present appeal is preferred against the Judgment in O.S.No.01/2013 passed by the

Junior Civil Judge, Rajam dated 30.12.2019, aggrieved by the 10 A.S.No.04/2021

Dated 27.03.2024

defendant which was decreed, the said suit presented appeal by the appellant/defendant.

12. For the sake of convenience of both parties arrayed as a trial court parties.

12. On perusal of the material on record, on behalf of the plaintiff P.W.s 1 to 5 were examined and got marked Ex.s A1 to A12.

On behalf of the defendants, D.W.s 1 to 5 were examined and got marked Ex.B1.

13. At the outset, the suit is filed for declaration and possession in respect of the plaint schedule property which is an extent of Ac.1.16 cents in S.No.7-16 situated at Konda Mamidivalasa village, RA Valasa mandal. It is well settled law in a suit for declaration the burden of proof is lies on the plaintiff to establish the legal title in respect of the plaint schedule property and same was held in the case of Union of India Vs. Vasavi Corporation Housing

Society Limited reported in 2014(2) SCC 269 and also in a suit for declaration of title the plaintiff must independently prove his/her title to the suit property without depending upon the weakness of the defendant title. So, the plaintiff has to establish the title over the plaint schedule property.

14. The brief evidence of the plaintiff witnesses is as follows:

i) The first plaintiff by name Nilurothu Annapurnamma examined as P.W.1, her evidence is nothing but replica of the contents of the plaint. Through the evidence of P.W.1, Ex.s A1 to A12 are marked. The evidence of P.W.1 which goes to show that the 11 A.S.No.04/2021

Dated 27.03.2024

plaint schedule properties which is an extent of Ac.1.16 cents situated in S.NO.7-16 of K.M.Valasa, RA Valasa Mandal is ancestral property of her husband. Her husband is only son to his father by name Nilurothu Appalanaidu. During his life time in the plaint schedule property he raised mango crop and realized the same without any interruption. After the death of her husband, she has been in possession and enjoyment of the same as she succeeded into the plaint schedule property. The 2nd plaintiff used to look after the plaint schedule property as she is old woman. The first defendant is a Telugudesam Party leader and in order to grab the plaint schedule property with an intention to occupy the same and trespassed into the same and erected temporary sheds and running school illegally.

She further stated that she also issued legal notice demanding the defendants 1 and 2 to evict the same and also informed about the highhanded occupation of the plaint schedule property to D3 and D4 which are the Mandal Education Officer and District Education officers. The defendants D1 and D2 issued reply notice with false allegations. She further stated that she is entitle crop from the D1 and D2 @ Rs.4,000/- and prays to decree the suit as prayed for?

ii) One Kemburi Ramakrishna who is the son in law of

P.W.1 examined as P.W.2. He also corroborating the evidence of

P.W.1 with regarding to all the material aspects.

P.W.3/Kimidi Venkata Ramana, P.W.4/Meesala

Simhachalam and P.W.5/Majji Satyamnaidu, they also deposed with one voice stating that the plaint schedule properties are ancestral properties of the first plaintiff husband after death of the 1st plaintiff 12 A.S.No.04/2021

Dated 27.03.2024

husband, the plaintiff has been looked after the plaint schedule properties and first and 2nd defendants are the influenced persons highhandedly trespass into the land of the plaint schedule property as such she filed the suit for declaration and possession.

15. The brief evidence of the defendant witness is as follows:

i) The first defendant by name Karanam Srinivasarao himself examined as D.W.1 and his evidence is nothing but replica of the contents of the written statement of first defendant. His evidence which goes to show that the first plaintiff husband has no properties in the village who is no other than his maternal uncle He further stated that the plaint schedule property is belongs to them to his father which is ancestral property, his father raised mango and

Teakwood trees in the plaint schedule property at about 30 years back the revenue authorities also issued pattadar pass book and title deed in respect of the plaint schedule property thereafter he established educational institution under the name and style of Sri

Sai Srinivasa Vidya Mandir in the year 1999 for LKG to 5th class.

Thereafter he leased out the school to the 2nd defendant from 2010 to 2015 on rent of Rs.4,000/- per year. The first plaintiff also filed the suit in O.S.No.121/2011 against him and his family members which is pending. The plaintiff has no right and title over the suit schedule property. Through his evidence Ex.B1 pattadar pass book was marked.

13 A.S.No.04/2021

Dated 27.03.2024

ii) One Kudigana Pakeeru, one Balivada Papinaidu, one Gorle

Govidnarao who are the third parties to the suit examined as D.W.s 2 to 4 and all of them deposed with one voice stating that the plaint schedule properties are the ancestral properties of the first defendant the first defendant father cultivated the plaint schedule property since long time from their ancestors. The father of the first defendant raised mango and teak trees in the plaint schedule property at about 30 years back the revenue authorities also issued pattadar pass book and title deed in favour of the first defendant in respect of the plaint schedule property. They further stated with one voice that the first defendant established educational institution under the name and style of Sai Srinivasa Vidya Mandir in the year 1995 from LKG to 5th class. Thereafter the first defendant leased out the said educational institution to the 2nd defendant form 09.06.2010 to 08.06.2015 for yearly rent for Rs.4,000/-. The first defendant has got right and title over the plaint schedule property. The first plaintiff file the suit O.S.NO.121/2011 against the first defendant and his family members.

iii) One M.V.Prasadarao who is the Mandal Education Officer examined as D.W.5, in his evidence he deposed that the 2nd defendant filed application before the 4th defendant for granting permission to run the Sai Srinivasa Vidya Mandir, U.P.School at

K.M.Valasa near Ungaradametta, RA Valasa Mandal, accordingly, 4th defendant issued proceedings vide RC.No.4767/A-2/2011 dated 03.06.2011 to grant permission to the 2nd defendant as the correspondent of Sri Sai Srinvasa Vidya Mandir to open an unaided private school for Class I to VII both in Telugu and English medium 14 A.S.No.04/2021

Dated 27.03.2024

for the academic year 2011-2012 only. He further stated that the 2nd defendant produced a copy of lease deed dated 09.06.2010 executed by D1 in the name of D2 in S.No.7/2016 an extent of Ac.1.16 cents of KMValasa to grant permission to erect sheds and running school in the schedule land on rental basis temporarily. He further stated that as per the AP Educational Institution establishment, recognition and

Administration and Control of school under Private Rules 1993 after expiry of one year permission period academic year the next renewal permission shall be granted soon after lapse of one year and the suit is not maintainable against D3 and D4.

16. POINT NO.1 and 2:

Whether the plaintiff is entitle for declaration and possession over the plaint schedule property?

It is the contention of the plaintiff is that the plaint schedule property is ancestral property of the first plaintiff husband. There is no dispute with regarding to the relationship between the plaintiffs and first defendant they are close relatives. To substantiate the version of the plaintiff, apart from the oral evidence of P.W.s 1 to 5, the plaintiff filed the documents which are marked under Ex.s A1 to

A12. As seen from the Ex.A1 Fair Adangal copy which shows that an extent of Ac.1.16 cents in S.No.7/16 stands on the name of Nilurothu

Appalanaidu i.e father of the first plaintiff husband by name

Nilurothu Satyamnaidu. In the entire cross examination of P.W.1, the learned defendant counsel did not deny the said fact. In the cross examination of P.W.1 and it was also categorically established that the plaint schedule property is the ancestral property of my father in law. She denied the suggestion given by the learned defendant 15 A.S.No.04/2021

Dated 27.03.2024

counsel that the plaint schedule properties are the ancestral properties of the first defendant.

17. As seen from the evidence of P.W.1 and evidence of D.W.5 it is a fact that there is an existence of school under the name and style of Sri Sai Srinivas Vidya Mandir except that nothing was elicited. In the entire cross examination of P.W.1, the Ex.A1 which contains the father in law name of P.W.1 which shows that as asserted in the evidence of P.W.s 1 to 5 and Ex.A1 which categorically established that originally the plaint schedule property is belongs to

Nilrothu Appalanaidu who is the father in law of the first plaintiff. As seen from the Ex.A1 adangal for fasalie 1421 for the year 2012 - 2013 it was categorically mentioned in S.NO.7-16 an extent of

Ac.1.16 cents on the name of Nilrouthu Annapurnamma, W/o

Satyamnaidu i.e first plaintiff herein. Similarly Ex.A3 is adangal copy which shows that the plaint schedule property i.e an extent of

Ac.1.16 cents in S.NO.7/16 stands on the name of Nilrouthu

Annapurnamma W/o Satyamnaidu i.e first plaintiff. Ex.A12 pattadar pass book which stands on the name of Nilrouthu Satyamnaidu in respect of the plaint schedule property. So, Ex.s A1 to A4, Ex.A11 and A12 which categorically established that the plaintiff is the absolute owner of the plaint schedule property. In the cross examination of D.W.1 he categorically admitted that the plaintiff filed the suit in respect of wet land in an extent of Ac.1.17 cents and he executed registered lease deed in favour of the 2nd defendant. But the defendant did not filed any lease deed.

16 A.S.No.04/2021

Dated 27.03.2024

18. It is further contention of the defendant in the cross examination of P.W.s 1 to 5 and evidence of D.W.s 1 to 4 that the plaint schedule properties are the ancestral property of the first defendant. But, the first defendant did not filed any revenue records to show that the plaint schedule properties stands on the name of the first defendant father. On perusal of the Ex.B1/Pattadar pass book which was stands on the name of first defendant in respect of the plaint schedule property survey number was mentioned but the extent is on the face of record with naked eye it appears it is a manipulated one and here is no signature or initial of the concerned revenue authorities in respect of the property mentioned in Ex.B1 i.e plaint schedule property Sy.No.7-16 and also there is no proceedings number of the revenue authorities for mentioning the same. Except filing Ex.B1 the defendant did not file any documentary proof to establish that the plaint schedule property is belongs to their ancestral property

19. In the cross examination of D.W.2, he stated that “I do not know in whose name the title deed and pattadar pass book was issued with regarding to the plaint schedule property land. I do not know whether first plaintiff is having pass book and title deed with regarding to the plaint schedule property. He further stated that I cannot say the name of the school”. So, the evidence of D.W.2 is no way helpful to the version of the defendant. Similarly in the cross examination of D.W.3 he also categorically admitted that “I do not know the extent of the plaint schedule property land and I do not know the number of the mango tress in the plaint schedule property.

He further stated that I do not know the name of the school which 17 A.S.No.04/2021

Dated 27.03.2024

was given on the lease to the 2nd defendant by the D.W.1. So, the evidence of D.W.s 1 to 4 which categorically established that they do not know about the facts of the case. So, their evidence is no way helpful to establish the title of the first defendant. When the plaintiff established by filing revenue records title of the plaint schedule property which is belongs to the first plaintiff husband the burden is lies on the defendant to prove the same. But he failed to prove the same.

20. As seen from the material record and evidence it is further contention of the defendant is that the first defendant leased out the educational institution to the 2nd defendant under the name and style of Sai Srinivasa Vidya Mandir from 09.06.2010 to 08.06.2015 for rent an amount of Rs.4,000/- per year. But the defendant did not file any lease deed. The evidence of D.W.5 who is the official witness disclosed that the 4th defendant has given permission only to conducting the school for the academic year 2011-12 only and evidence of D.W.5 did not disclosed about filing of lease deed between

D1 and D2. So, the evidence of plaintiff and both parties which established that the plaintiff is the absolute owner of the plaint schedule property. Accordingly, the points are answered.

21. On perusal of the Judgment passed by the trial court rightly appreciated all the facts with evidence and documents filed by the plaintiffs and defendants and rightly decreed the suit, in the appeal ground itself admittedly the ownership of plaintiff by pleading adverse possession but the defendant failed to prove the same. Hence, this court does not interfere into the Judgment and 18 A.S.No.04/2021

Dated 27.03.2024

decree passed by the Junior Civil Judge, Rajam in O.S.No.01/2013

dated 30.12.2019

22. POINT No.3: In the result, the appeal suit is liable to be dismissed without costs by confirming the judgment and decree passed by the Junior Civil Judge, Rajam in O.S.No.01/2013 dated 30.12.2019.

Dictated to the Stenographer Gr.III, transcribed by her

corrected and pronounced by me in open Court, this the 27th day of March, 2024.

Senior Civil Judge,

RAJAM.

APPENDIX OF EVIDENCE

No oral and documentary evidence is adduced on either side of the parties

Senior Civil Judge,

RAJAM.

1 1 S.C.No 65/2023

Dt: 15.04.2024

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE, RAJAM

PRESENT:- Sri M. Babu Assistant Sessions Judge, Rajam.

Monday, this the 15th day of April, 2024.

SESSIONS CASE No. 65/2023

(P.R.C. No. 08/2021 on the file of Judicial Magistrate of 1st class, Ponduru, corresponding to Cr. No.91/2021 of G.Sigadam Police Station)

Between:

The State of Andhra Pradesh represented by Inspector of Police, Rajam Rural Circle.

... Complainant.

And:

1.Botta Asirappa, W/o Adinarayana, aged 51 years, Yadava by caste, Coolie, Jagannadhavalasa village, G.Sigadam mandal.

2.Botta Adinarayana, S/o late Pentayya, aged 55 years, Coolie, Yadava by caste, Jagannadhavalasa village, G.Sigadam Mandal.

... Accused.

This Sessions Case is coming on 12.04.2024 for final hearing before me in the presence of learned Additional Public Prosecutor for Prosecution and of Sri N.Prasada Rao, Ld. Counsel for accused and upon hearing on both sides and having stood over till this day for consideration, this Court delivered the following:

J U D G M E N T

The State of Andhra Pradesh, represented by the Inspector of Police,

Rajam Rual Circle filed charge sheet against the accused A1 and A2 in

Cr.No.91/2021 of G.Sigadam Police Station, for the offence under sections 306, 498-A r/w 34 of Indian Penal Code.

2. The brief facts mentioned in the complaint are as follows:

One Devara Parvathi who is the de-facto complainant and mother of the deceased D1 byname Botta Bogeswaro, grand mother of D2 to D4 i.e Botta

Chakri aged about 5 years, Jayalaxmi aged about 3 years and Bharat Kumar aged about 1 ½ year. The marriage of the deceased D1 was performed with 2 2 S.C.No 65/2023

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one Botta Sankararao of Jagannadhavalasa village was celebrated about eight years back and they have three children who are D2 to D4. The husband of

D1 by name Sankararao is an innocent but the deceased D1 studied up to 10th class and she used to look after her husband and children properly as such there are no disputes between the couple. But D1’s mother in law and father in law i.e A1 and A2 developed some dissatisfaction on D1 and used to harass her both physically and mentally with intolerable words by saying that D1 was not doing any work and she was eating with the earnings of their son.

The deceased No.1 bore the torture silently for some time and later she expressed her or deal before her mother and neighbours who in turn convinced

D1 by saying that her husband is good as such her in laws would change their attitude in the course of time. Finally D1 brought the issue before village elder who summoned and warned the accused. But nothing change was noticed and the accused continued to harass D1. In the course of time D1 had developed some vexation on her life and though that death would be better rather than plight of life. While son on 30.06.2021 afternoon usually the accused harassed D1 by hurling intolerable words that there would be no use if she was alive. This instance made D1 to take an extreme decision committing suicide. D1 felt insecure and safety of her three children after her death and decided to commit suicide along with her children and on 30.06.2021 about 15.00 hours D1 committed suicide along with D2 to D4 by jumpting off into the ground well of one Ijju Babji which is situated at the outskirts of the village.

Basing on the report of the de-facto complainant, Sub Inspector of

Police, G.Sigadam Police Station registered a case in Cr.No.91/2021 under section 498-A, 306 r/w 34 IPC of G.Sigadam P.S. on 30.06.2021 at 21.00 hours and issued First Information Report. L.W.41/D.Naveen Kumar, 3 3 S.C.No 65/2023

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Inspector of Police, Rajam Rural Circle conducted investigation in this case.

During the course of investigation, Investigating officer inspected the scene of offence in the presence of mediators, collected one liter water from the ground well under cover of scene observation report, prepared rough sketch, photographed the scene of offence, held inquest over the dead body of the deceased in the presence of mediators, got held inquest over the dead bodies to Govt. Hospital, Rajam for autopsy. The Inspector of Police, arrested the accused on 07.07.2021 and forwarded them to the Honourable Court for autopsy.

L.W.s 30 to 33 Dr.L.Sailaja, Area Hospital, Rajam; Dr.P.Kasi

Viswanadham, Area Hospital, Rajam, Dr.Rajendra, Area Hospital, Rajam and

Dr.Shanmukha Srinivas Junnuru, Area Hospital, Rajam conducted autopsy over the dead bodies of D1 to D4, preserved sternum bones and reserved their opinion for analysis. After analysis report, issued final opinion with regard to cause of death of the deceased that the deceased would appear to have due to ante mortem drowning. Inspector of Police, Rajam forwarded sternum bones and sample water to the Assistant Professor, RFSL, Visakhapatnam for analysis through the office of SDPO, Palakonda and the doctors analyzed the material objects and issued opinion vide file No.R/512/2021 dated 31.08.2021 and file No.VSP/TOX/974/2021 dated 21.09.2021 respectively that similar diatoms are detected. Thus both the accused are liable to be punished under section 498-A and 306 r/w 34 IPC for subjecting D1 to cruelty both physically and mentally and abetting D1 to commit suicide along with D2 to D4. Hence, the charge sheet.

3. The learned Judicial Magistrate of 1st Class, Ponduru took cognizance for the offence under Sections 306, 498-A of Indian Penal Code 4 4 S.C.No 65/2023

Dt: 15.04.2024

against the accused and registered the same as P.R.C.No.08/2021 and committed the same to the Court of Sessions, Srikakulam. The Honorable

Sessions Judge, Srikakulam registered the said PRC as Sessions Case

No.65/2023 and made over the same to this Court for disposal according to law.

4. After appearance of the accused A1 and A2 before this Court, the accused were examined under section 228 of Criminal Procedure Code, read over and explained the contents of the charge in Telugu for the offence punishable under sections 306, 498-A r/w 34 of Indian Penal Code against accused A1 and A2, for which, they pleaded not guilty and claimed to be tried.

5. To bring home the guilt of the accused the Prosecution examined

PW1 to 17 and got marked Ex.P1 to P22. Ex.P1 is the Part of Section 161

Cr.P.C.Statement of P.W.1; Ex.P2 is the Part of Section 161 Cr.P.C.Statement of P.W.2; Ex.P3 is the part of Section 161 Cr.P.C.Statement of P.W.3; Ex.P4 is the part of Section 161 Cr.P.C.Statement of P.W.4; Ex.P5 is the part of

Section 161 Cr.P.C.Statement of P.W.5; Ex.P6 is the Section 161

Cr.P.C.Statement of P.W.6; Ex.P7 is the scene observation report; Ex.P8 is the

Inquest Panchanama of D1; Ex.P9 is the Inquest panchanama of D2; Ex.P10 is the inquest panchanama of D3; Ex.P11 is the inquest panchanam of D4;

Ex.P12 is the Postmortem Examination report of deceased Bogeswari; Ex.P13 is the Postmortem Examination report of deceased by name Chekri; Ex.P14 is the Final Opinion; Ex.P15 is the Postmortem examination report of deceased

Bharath Kumar; Ex.P16 is the Final opinion; Ex.P17 is the Postmortem examination report of deceased byname Botta Jayalakshmi; Ex.P18 is the

Final Report; Ex.P19 is the written complaint given by P.W.1; Ex.P20 is the 5 5 S.C.No 65/2023

Dt: 15.04.2024

original FIR; Ex.P21 is the rough sketch of scene of offence and Ex.P22 is the eight photographs along with CD. No material objects were marked.

6. After closure of prosecution evidence, the accused A1 and A2 examined under Section 313 Cr.P.C, incriminating material available in the prosecution witnesses is explained to them in Telugu, having understood and they denied the same and reported no defence evidence.

7. Heard arguments on both sides.

8. Now the point for determination is:-

Whether the prosecution has proved the guilt of the accused A1 and A2 for the offence punishable under sections 306 and 498- A r/w 34 of Indian Penal Code beyond all reasonable doubt?

9. It is the case of the prosecution is that the deceased No.1 married the son of the accused at about 8 years back, during their wedlock they blessed with three children i.e D2 to D4.Subsequently, the accused harassed the D1 by stating that she is not doing any work and leading their lives depending upon the only earnings of her husband. The deceased D1 same was conveyed to her parents and villagers but they consoled her by stating that her husband is a good person. Finally, due to unbearable harassment of the accused the deceased No.1 take extreme and she committed suicide by jumping into well along with her three children i.e D2 to D4. On the report given by P.W.1 a case in Cr.No.91/2021 was registered for the offence under section 498-A, 306 r/w 34 IPC was registered by P.W.16 Sub Inspector of Police, G.Sigadam P.S.

During the course of investigation, P.W.17 who is the Investigating Officer examined and recorded the statement of witnesses and also conducted inquest panchanama over the deceased dead bodies and visited the scene of offence and prepared rough sketch. Finally on 07.07.2021 the accused was arrested and send them for judicial remand and after completion of entire investigation, 6 6 S.C.No 65/2023

Dt: 15.04.2024

the Investigating officer filed charge sheet as such, the accused are liable for the offence under sections 498-A and 306 r/w 34 IPC.

10. On the other hand, the learned accused counsel by submitting his arguments contending that the deceased committed suicide by extreme step there is no fault of harassment on the part of the accused. He further contended that the deceased is a close relative of the accused and in the spur of movement she committed suicide along with her three children and there is no willful default or intentional to aid on the part of the accused in committing suicide by the D1 to D4. He further contended that the prosecution witnesses did not support the version of the prosecution and entire witnesses turned hostile deviating version of the prosecution case. Except the investigating officers i.e P.W.16 and 17 and mediators about the conduct of inquest panchanama no witness deposed about the harassment and abetment of suicide against the deceased. The prosecution failed to prove the same and prays to acquit the accused.

11. POINT:

On perusal of the material record in order to bring home the guilt of the accused, the prosecution examined P.W.s 1 to 17 and got marked Ex.s P1 to P22.

12. The first charge levelled against accused is for the offence under section 306 r/w 34 of IPC. In order to clear understanding I am herewith draw the provision is as follows:

306. Abetment of Suicide:-

If any person commits suicide, who ever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

7 7 S.C.No 65/2023

Dt: 15.04.2024

So, the prosecution has to establish the ingredients which attracted for the offence under section 306 of IPC i.e intentional aid or abetment in committing suicide. As seen from the material record and evidence of both parties, it is an admitted fact that the marriage of the deceased took place with one Botta Sankararao who is the son of accused 1 and 2 at about 8 years back. As per the version of the prosecution the accused who are in-laws of the deceased Botta Bogeswari harassed her both mentally and physically by using intolerable words towards her, due to unbearable harassment caused by the accused, the deceased D1 along with her three children committed suicide on 30.06.2021 at about 3.30 PM by jumping into well. Due to intolerable harassment of the accused, the deceased committed suicide along with her three children.

13. As seen from the evidence of P.W.1 who is the mother of the deceased she did not supported the version of the prosecution case and did not state anything against the accused A1 and A2. P.W.1 stated in her evidence that “my son in law looked after my daughter is well manner. The accused and my daughter and her in laws are lived together in one house. About three years back, my daughter committed suicide by jumping into well”. Except that nothing was stated against the accused. When, the learned Additional Public

Prosecutor confronted about the report she stated that “I do not know the contents of police report, police obtained my thumb impression” Except that nothing was elicited. P.W.s 2 to 5 who are the alleged neighbours of the deceased, they also did not support the version of the prosecution.

14. As seen from the evidence of P.W.6, P.W.7 and P.W.8 to P.W.10 who are the mediators about conducting of inquest panchanama over the deceased dead bodies and Ex.s P8 to P11 reveals that the deceased died due to drowning into well. The evidence of P.W.12 to P.W.15 who are the Doctors 8 8 S.C.No 65/2023

Dt: 15.04.2024

and Sub Inspector of Police reveals that they conducted autopsy over the dead bodies of the deceased and issued Postmortem examination report. The evidence of P.W.16 and 17 who are the police official witnesses they deposed about the mode and manner of the investigation except that they did not depose anything against accused. As seen from the entire evidence of the prosecution witnesses, there is no evidence that the accused intentionally abated and aid in committing the offence towards the deceased. As such the prosecution failed to prove the offence against accused for the offence under section 306 of IPC.

15. The another charge leveled against the accused A1 and A2 is for the offence under section 498-A r/w 34 of Indian Penal Code. In order to clear understanding I am herewith draw the provision is as follows:

“498-A. Husband or relative of husband of a woman subjecting her to cruelty : Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation : For the purpose of this Section, “Cruelty” means :

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (Whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand”.

A reading of the explanation of (a) and (b) clearly disclose that the definition of ‘cruelty’ has two meanings, one is, any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the women. The second meaning is, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any 9 9 S.C.No 65/2023

Dt: 15.04.2024

property or valuable security or is on account of failure by her or any person related to her to meet such demand.

16. So, the prosecution has to establish the harassment and cruelty made by the accused towards deceased. The allegation of the prosecution is that due to unbearable harassment of the accused who are the in laws of the deceased D1, both mentally and physically, the deceased D1 committed suicide along with her three children. As such, the accused are liable for the offence punishable under section 498-A r/w 34 IPC.

17. As seen from the contents of the Ex.P19 written complaint given by P.W.1, it reveals that the P.W.1 put her thumb impression on the written complaint. When the learned Additional Public Prosecutor confronted about the contents of the report she categorically stated that “I do not know about the contents of the report”. As seen from the evidence of P.W.s 2 to 10 who are prosecution witnesses there is no specific evidence in the prosecution witnesses that the accused harassed the deceased both mentally and physically.

Admittedly, as seen from the version of the prosecution the deceased is no other than the close relative of the accused and as seen from the entire contents and evidence of P.W.1, there is no whisper that the accused harassed the deceased for want of additional dowry , due to unbearable harassment she committed suicide. The entire material witnesses i.e P.W.s 1 to 5 did not support the version of the prosecution. The evidence of P.W.s 6 to 9 who are the mediators and deposed about the conducting of inquest over the dead body of the deceased at Area Hospital, Rajam except that nothing was deposed against the accused. So, in view of the above facts and circumstances, the prosecution failed to prove the offence against accused. As seen from the entire evidence of the prosecution, they did not support the version of the prosecution, they entirely deviated the version of the prosecution. As such, 10 10 S.C.No 65/2023

Dt: 15.04.2024

there is no question of harassment for dowry or demand of additional dowry, the prosecution failed to prove the offence under section 498-A of IPC against accused A1 and A2.

18. In view of the above facts and circumstances, considering the material on record, the prosecution failed to prove the guilt of the accused A1 and A2 for the offence under sections 306 and 498-A r/w 34 of IPC. The point is answered accordingly.

19. In the result, Accused A1 and A2 are found not guilty for the offence punishable under sections 306, 498-A r/w 34 of Indian Penal Code, accordingly they are acquitted under section 235(1) Cr.P.C. The unmarked case property, if any shall be destroyed after expiry of appeal time. The bail bonds of the accused A1 and A2 shall stand cancelled after 6 months as per

Section 437-A of Cr.P.C.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open Court, this the 15th day of April, 2024.

Sd/- M.BABU

Assistant Sessions Judge, Rajam.

APPENDIX OF EVIDENCE

Witnesses Examined

FOR PROSECUTION: FOR DEFENCE:

PW.1: 23.02.2024: Devara Parvathi -None- PW.2: 23.02.2024: Devara Laxmi PW.3: 23.02.2024: Vaigala Rama Krishna P.W.4: 23.02.2024: Bammidi Ramanna P.W.5: 23.02.2024: Korikana Nagabushanarao P.W.6: 15.03.2024: Ijji Babuji P.W.7: 15.03.2024: Duragasi Raju P.W.8: 15.03.2024: Siddala Raghu P.W.9: 15.03.2024: Kuppili Seethayya P.W.10: 15.03.2024: Potnuru Jagannadham P.W.11: 22.03.2024: Dr.L.Sailaja P.W.12: 22.03.2024: Dr.G.Kasi Viswanadham P.W.13: 22.03.2024: Dr.Shanmukh Srinivas J. P.W.14: 22.03.2024: Betha Ramarao 11 11 S.C.No 65/2023

Dt: 15.04.2024

P.W.15: 26.03.2024: Dr.B.Rajendra P.W.16: 26.03.2024: ch.Ramarao P.W.17: 12.04.2024: D.Naveen Kumar

Documents Marked

FOR PROSECUTION: FOR DEFENCE: Ex.P1: Part of Section 161 Cr.P.C. Statement of -Nil- P.W.1 Ex.P2: Part of Section 161 Cr.P.C. Statement of P.W.2 Ex.P3: Part of Section 161 Cr.P.C. Statement of P.W.3 Ex.P4: Part of Section 161 Cr.P.C.Statement of P.W.4 Ex.P5: Part of Section 161 Cr.P.C.Statement of P.W.5 Ex.P6: Section 161 Cr.P.C. Statement of P.W.6 Ex P.7: Scene observation Report Ex P.8: Inquest Panchanama of D1

Ex.P9: Inquest Panchanama of D2 Ex.P10: Inquest Panchanama of D3

Ex.P11: Inquest Panchanama of D4 Ex.P12: Postmortem examination report of Deceased D1 Ex.P13: Postmortem examination report of Deceased D2 Chakri Ex.P14: Final Opinion Ex.P.15: Postmortem examination report of Deceased Bharath Kumari Ex.P16: Final opinion Ex.P17: Postmortem examination report of Deceased Botta Jayalakshmi Ex.P18: Final Opinion Ex.P19: Written complaint given by P.W.1 Ex.P20: Original First Information Report Ex.P21: Rough sketch of scene of offence Ex.P22: Eight photographs along with C.D.

Material Objects -- NIL --

Sd/- M.BABU

Assistant Sessions Judge, Rajam.

//True copy//

Assistant Sessions Judge, Rajam.

12 12 S.C.No 65/2023

Dt: 15.04.2024

13 13 S.C.No 65/2023

Dt: 15.04.2024

IN THE COURT OF THE ASSISTANT SESSIONS JUDGE, RAJAM

PRESENT:- Sri M. Babu Assistant Sessions Judge, Rajam.

Monday, this the 15th day of April, 2024.

SESSIONS CASE No. 65/2023

(P.R.C. No. 08/2021 on the file of Judicial Magistrate of 1st class, Ponduru, corresponding to Cr. No.91/2021 of G.Sigadam Police Station)

Name of the Complainant: The State of Andhra Pradesh represented by Inspector of Police, Rajam Rural Circle.

Name of the Accused : 1.Botta Asirappa, W/o Adinarayana, aged 51 years, Yadava by caste, Coolie, Jagannadhavalasa village, G.Sigadam mandal.

2.Botta Adinarayana, S/o late Pentayya, aged 55 years, Coolie, Yadava by caste, Jagannadhavalasa village, G.Sigadam Mandal.

Offences with which charged : under Sections 498-A and 306 r/w 34 of IPC.

Date & Place of offence : 30.06.2021 at about 15.30 hours in Jagannadhavalasa village, G.Sigadam Mandal.

Date of Apprehension of : 07.07.2021 accused Accused in Jail or bail : On bail Date of commencement of Trial : 23.02.2024 Date of Close of Trial : 12.04.2024 Date of sentence or Order : 15.04.2024

Explanation for the delay : Vide separate docket extract enclosed.

a) In the committal court

b) in the Trial : This case was received as made over by the Hon’ble Court Principal District & Sessions Judge, Srikakulam to this Court. After appearance of the Accused A1 and A2, charge has been framed under Sections 498-A and 306 r/w 34 of Indian Penal Code against them, read-over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

On 07.02.2024, the trial schedule was fixed, PWs.1 to 17 are examined and Exs.P.1 to P.22 are marked and the prosecution evidence is closed. On 12.04.2024, the Accused A1 and A2 examined under Section 313 of Cr.P.C., by explaining the incriminating material appearing against them and they denied the same and reported no defence evidence on their behalf. On the 14 14 S.C.No 65/2023

Dt: 15.04.2024

same day, arguments heard on both sides and posted for Judgment. On 15.04.2024 Judgment is pronounced (vide separate Judgment).

Sentence or : In the result, Accused A1 and A2 are found not guilty for the Order offence punishable under sections 306, 498-A r/w 34 of Indian Penal Code, accordingly they are acquitted under section 235(1) Cr.P.C. The unmarked case property, if any shall be destroyed after expiry of appeal time. The bail bonds of the accused A1 and A2 shall stand cancelled after 6 months as per Section 437-A of Cr.P.C.

Sd/- M.BABU

Assistant Sessions Judge, Rajam.

Copy submitted to:-

1.The Hon’ble Registrar (JUDICIAL), High Court of Andhra Pradesh, Nelapadu, Amaravathi through the Hon’ble Principal District and

Sessions Judge, Srikakulam.

2.The Hon’ble Principal District and Sessions Judge, Srikakulam.

Copy to:-

3.The Superintendent of Police, Srikakulam.

4.The Additional Public Prosecutor, Rajam.

5.The Judicial Magistrate of I Class, Ponduru.

Sd/- M.BABU

Assistant Sessions Judge, Rajam.

//True Copy//

Assistant Sessions Judge, Rajam.