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IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE::TADEPALLIGUDEM
Present: Sri. M.S.Karimulla,
Principal Junior Civil Judge
Thursday, the day of 28th day November, 2019
O .S.No.84/2009
Between:
Mullapudi Naga Pavan Kalyan, S/o late Satyanarayana, 19 years, Student, Achannapalem, Nallajerla Mandal, TPG PJCJ.
(As per orders in IA.No.593/2017, dt.31-07-2017, the plaintiff is declared as
major) ..Plaintiff
And
1.Yendapalli Veera Venkata Satya Durga Lakshmi, W/o Krishna, 40 years, Hindu, Female, House wife, Vellachintalagudem, Gopalapuram Mandal, KVR PJCJ
2.Katuri Sai Jyothi, W/o Bhairava Kumar, 37 years, Hindu, Female, House wife, Andaluru, Veeravasaram Mandal, BVRM, PJCJ.
3.Akurati Venkateswarlu, S/o Lakshmanayaswamy, 59 years, D.No.5-3-17, Gandhinagar, Sill Campus, Palvancha, Khammam Dist., (3rd defendant is added as per orders in IA.641/2014, dt.29-6-2015)
..Defendants
This suit coming on 15-11-2019 for final hearing before me in the presence of Smt. G.K. Durga Devi, Advocate for Plaintiff and of Sri J.V. Ramana and Sri T. Sampat Kumar, Advocates for defendants 1 to 3 and the matter having stood over for consideration till this day, the Court delivered the following:
J U D G M E N T
This is a suit filed by the plaintiff against the defendants 1 to 3 praying this Court for declaration of his title over the suit schedule property which he got it by virtue of a Will, dated 3-9-1999 executed by his grandfather
Naganna and also consequential permanent injunction restraining the defendants and their men from ever interfering with the plaintiff’s possession and enjoyment over the plaint schedule property by stating as hereunder;
2. The brief facts of the plaint :
That originally the plaint schedule property Ac.0.97 cents belongs to 2 one Mullapudi Naganna who is paternal grandfather of the plaintiff. The plaint schedule property and some other properties were fallen to the share of the said Naganna in a registered partition deed, dated 03-10-1963 (document No.709/1963) effected in between himself and his only son namely Satyanarayana. As per the above registered partition deed, the suit schedule property ie., Ac.0.97 cents and other properties fell to the share of
Naganna and the remaining properties fell to the share of his son Mullapudi
Satyanarayana.
a)The wife of the said Naganna died long back and the 1st wife of
Mullapudi Satyanarayana died intestate leaving behind two daughters ie., the defendants 1 and 2 herein and her husband. Later, the said
Satyanarayana married the mother of plaintiff as 2nd wife namely Baby
Sarojini on 24-04-1992. The said Naganna executed a Will on 03-09-1999 bequeathing the suit schedule property to the plaintiff who is his grandson who was born on 1-9-1998 through the 2nd wife of his son Mullapudi
Satyanarayana, out of their lawful wedlock.
b)The said Naganna and his son Satyanarayana performed the marriages of the defendants 1 and 2. As the above Naganna used to reside along with his son and his daughter-in-law Baby Sarojini who is mother of the plaintiff and as they looked after the welfare of Naganna, hence the
Naganna bequeathed his properties to the plaintiff who was minor by that time as he had already given other properties to the defendants 1 and 2 who were born through 1st wife of his son. The said Naganna died on 3-12-2001. As the plaintiff was being minor, his mother looked after the properties on his behalf. On 23-11-2008 the father of the plaintiff also died due to ill-health and since then the mother of the plaintiff has been looking after the affairs of the plaintiff and also his properties.
c)The defendants taking advantage of the death of father of the 3 plaintiff, they are proclaiming in the village that they would interfere with the possession and enjoyment of the suit schedule property of the plaintiff as the plaintiff is born through the 2nd wife of their father and they are not willing to give any property to the plaintiff. The defendants have been proclaiming in the village that they would not allow the plaintiff to cultivate the suit schedule property and they also threatened the plaintiff that they would interfere with the possession and enjoyment of the suit schedule property forcibly and also stating that plaintiff has no right in the schedule property.
d)The suit schedule property is self acquired property of the deceased Naganna by virtue of a partition deed, dated 03-10-1963 effected in between him and his son and the said Naganna executed a Will in favour of the plaintiff on 3-9-1999 voluntarily in a sound and disposing state of mind and the said Will is duly attested. Thus, the plaintiff became absolute owner of the suit schedule property after demise of the said Naganna. The plaintiff is raising vegetable plants in small extents as a small farmer in the suit schedule property and the said land is a dry land and it is being irrigated with bore water, hence the tax is exempted to the schedule property by the
Government.
e)The 3rd defendant during pendency of the suit obtained a nominal sale deed on 18-11-2013 without consideration from the 1st defendant for some part of suit schedule property which is nothing but a sham and nominal document and the same is not binding on the plaintiff as it is obtained during pendency of the suit. This para is added as per Orders in IA.641/2014, dated 29-06-2015.
f)The defendants have no any manner of right to interfere in the schedule property. As the defendants are denying the right of the plaintiff over the suit schedule property and trying to interfere it, hence the plaintiff 4 is constrained to file this suit for declaration and consequential relief of permanent injunction against the defendants and their men. Hence, the suit.
3.On the other hand, the 1st defendant filed written statement denying the averments of plaint and also stated as hereunder which is adopted by the 2nd defendant.
a)That the alleged Will, dated 03-09-1999 is a forged one,
Mullapudi Naganna never executed any Will bequeathing his properties in favour of the plaintiff. The plaintiff is put to strict proof of the alleged Will,
dated 3-9-1999.
b)Mullapudi Satyanarayana is the only son to his father Mullapudi
Naganna. The alleged partition deed, dated 3-10-1963 is only a nominal document executed anticipating land ceiling laws and the said partition deed is never acted upon. The said Mullapudi Naganna and his son
Satyanarayana lived as a single family and the Naganna agreed only to take maintenance by giving up all his rights in the family properties in favour of his son Satyanarayana and accordingly, Satyanarayana maintained his father till his death.
c)The defendants 1 and 2 are daughters of the above Mullapudi
Satyanarayana and the 1st defendant filed a suit in Os.383/1993 on the file of 1 Addl.District Munciff Court, Kovvur for partition of the family properties against her father, her sister ie., 2nd defendant herein and another. The suit schedule property in this suit is shown as 2nd Item in the above suit in
OS.383/1993. The said suit in OS.383/1993 was decreed on 5-10-1994.
Later, a final decree in IA.783/2004 in OS.383/1993 was allowed in which an
Advocate commissioner was appointed who filed his report by dividing the properties into three shares and accordingly, a final decree was passed, registered and an application was also filed for delivery of the respective 5 shares.
d)The plaintiff, Mullapudi Naganna are aware all the facts in the above suit in OS.383/1993 and also showing the suit schedule property herein as 2nd Item in that suit. The said Mullapudi Naganna or his son
Mullapudi Satyanarayana never raised any objection claiming that the plaint schedule property is the property of Mullapudi Naganna. The said Naganna died intestate and as such all his properties came into the hands of his son
Satyanarayana as ancestral property and as such the defendants 1 and 2 herein are also entitled to the shares in the suit schedule property as prayed in OS.383/1993.
e)The Mullapudi Satyanarayana and the plaintiff herein are estopped to contend otherwise and there is a feeding of rights during the pendency of the above suit. The Judgment and decree in OS.383/1993 became final and conclusive, hence this suit is barred by res-judicata. The next friend of the plaintiff I.e., his mother and Mullapudi Satyanarayana who is father of plaintiff are aware that an advocate commissioner visited the plaint schedule property for division of the plots as per the final decree in
IA.783/2004 in OS.383/1993 on the file of Junior Civil Judge’s Court, Kovvur.
f)The defendants are taking steps to take separate delivery of their respective shares in the plaint schedule property, but the next friend of the plaintiff who is his mother created the alleged Will, dated 03-09-1999 by forging the signature of the Mullapudi Naganna and filed this suit with false allegations. There is no whisper about the alleged Will, dated 3-9-1999 in any of the previous proceedings or before the revenue authorities. The plaintiff has no right, possession or enjoyment over the plaint schedule property at any point of time. The plaintiff has no right to stop the execution proceedings in OS.383/1993. The plaintiff suppressed the previous proceedings and filed this suit.
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g)The partition deed, dated 3-10-1963 shows Mullapudi Naganna got Ac.1.26 ½ cents in R.S.No.375/1 of Nallajerla village. Mullapudi Naganna had some other properties and also he had Ac.0.13 cents of house sites in
R.S.No.387 and also Gramakantam site to an extent of Ac.0.13 cents in
R.S.No.386/1B of Atchannapalem village. The alleged Will, dated 3-9-1999 is forged in respect of Ac.0.97 cents only as the 1st defendant filed
OS.383/1993 only for Ac.0.97 cents. The said Will is created just before
filing of this suit to defeat the rights of the defendants herein in
OS.383/1993. There is no whisper about the other properties of Mullapudi
Naganna in the alleged Will, dated 3-9-1998 which shows that it is nothing but a forged one and created to defeat the rights of defendants 1 and 2.
Hence, it is prayed to dismiss the suit.
4.The 3rd defendant though filed a separate written statement, but he got mentioned the same averments of the written statement of 1st defendant except the following paragraph as mentioned hereunder;
a)That the sale deed, dated 18-11-2013 is not a nominal sale deed and created for the purpose of litigation and infact, he paid Rs.2,80,000/- to the 1st defendant and purchased the property under the above sale deed and took possession of the same having considering all the documents and he is a bonafide purchaser of the property without knowledge of the suit proceedings. Hence, it is prayed to dismiss the suit.
5.On the basis of above pleadings the following issues are framed.
1. Whether the plaintiff is entitled for declaration and for consequential injunction?
2. Whether the Will, dt.3-9-1999 is forged one?
3. To what relief?
Additional issues framed on 29-8-2017
1. Whether the plaintiff has been in possession and enjoyment over suit schedule property as rightful owner?
2. Whether the registered sale deed, dt.18-11-2013 executed by
1 st defendant in favour of 3 rd defendant is true, valid and
binding on the plaintiff?
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3. Whether the plaintiff is entitled to be declared as absolute
owner of suit schedule property by virtue of Will, dt.3-9-1999
and for consequential permanent injunction restraining the
defendants from interfering plaintiff's possession over the suit
schedule property?
4. To what relief?
6.On behalf of the plaintiff, PW.1 to P.W.6 are examined and Ex.A1 to Ex.A-5 are marked. On behalf of the defendants, D.W.1 to D.W.3 are examined and Ex.B-1 to B-3 are marked. Ex.X-1 is marked through hand writing expert by the Advocate commissioner.
7.Heard both sides.
8.In order to better appreciation of facts and also to come to a just conclusion, the above issues are recapitulated as hereunder.
1. Whether the Will, dated 3-9-1999 executed by Mullapudi
Naganna in favour of the plaintiff is true, valid and binding on
the defendants?
2. Whether Ex.A-1 partition deed, dated 03-10-1963 is only
nominal and vitiated by Ex.B-1 sale deed, dated 18-05-2001 ?
3. Whether the plaintiff is in possession and enjoyment over suit schedule property as a rightful owner?
4. Whether the registered sale deed, dt.18-11-2013 executed by
1 st defendant in favour of 3 rd defendant is true, valid and
binding on the plaintiff?
5. Whether the suit is barred by res-judicata?
6. Whether the plaintiff is entitled to be declared as absolute
owner of suit schedule property by virtue of Will, dt.3-9-1999
and for consequential permanent injunction restraining the
defendants from interfering plaintiff's possession over the suit
schedule property?
7. To what relief?
9. Issue No.1 and 2 :
1. Whether the Will, dated 3-9-1999 executed by Mullapudi
Naganna in favour of the plaintiff is true, valid and binding on
the defendants?
2. Whether Ex.A-1 partition deed, dated 03-10-1963 is only
nominal and vitiated by Ex.B-1 sale deed, dated 18-05-2001 ?
As both issues are inter related, hence they are taken commonly for discussion.
10.In order to prove the genuineness of the Will, dated 3-9-1999 executed by the Mullapudi Naganna in favour of the plaintiff, the mother of the plaintiff herself is examined as P.W.1 and she also got marked Ex.A-2 8
Will, dated 3-9-1999 through her. The plaintiff namely Mullapudi Naga Pavan
Kalyan is nothing but grandson of executant namely Mullapudi Naganna who was born through 2nd wife namely Baby Sarojini of his only son Mullapudi
Satyanarayana after demise of his 1st wife. The defendants 1 and 2 are granddaughters of Mullapudi Naganna through his son’s 1st wife. There is no dispute with regard to the relation among the Mullapudi Naganna, plaintiff and the defendants 1 and 2. The suit schedule property is Ac.0.97 cents.
11.The plaintiff also in order to substantiate his contention as to his grandfather ie., Naganna got right over the suit schedule property by virtue of a registered partition deed, dated 01-10-1963 and the registered extract of the said partition deed is also marked as Ex.A-1.
12.The plaintiff also got examined the attestors ie., P.W.2
J. Satyanarayana, P.W.3 P. Nageswararao and P.W.5 K. Suryachandrarao on the Ex.A-2 Will, dated 03-09-1999. As the defendants took a plea that the above said Will, dated 03-09-1999 is a forged one, hence the plaintiff also got sent the disputed Will to the hand writing expert who sent his opinion to this Court stating that the signature on the Will, dated 03-09-1999 belongs to the Mullapudi Naganna himself and it is not a forged document.
13.The plaintiff got marked the expert opinion as an Ex.X-1 through hand writing expert(P.W.6) by appointing an Advocate commissioner. The said Will coupled with oral evidence of the remaining all witnesses especially the attestors on the Ex.A-2 Will ie., P.W.2 J. Satyanarayana, P.W.3
P. Nageswararao and P.W.5 K. Suryachandra Rao. Even though, there is a slight variation in the evidence of attestors in respect of signature of
Mullapudi Naganna on the Ex.A-2 Will and the same would not cut away the genuineness of the Ex.A-2 Will, in view of expert opinion.
14.The 1st defendant/D.W.1 stated in her cross examination in 2nd page at para-3 that she has no disputes with the attestros on Ex.A-2 Will.
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The 2nd defendant/D.W.2 also stated in her cross examination she has no enimity with the attestors on the Ex.A-2 Will. The D.W.2 also admitted that apart from the suit schedule property, her paternal grandfather Naganna also got Ac.0.16 cents in the Ex.A-1 partition and out of which Ac.0.10 cents was sold to A. Venkateswararao by her paternal grandfather under Ex.B-1 sale deed, dated 18-05-2001. The D.W.2 also stated the remaining Ac.0.06 cents, there is a house in which the plaintiff and his mother are residing.
15.At this juncture, the counsel for defendants relied a case law in a case between Renu Devi Kedia Vs.Seetha Devi which is reported in AIR 2005 AP. 180 wherein it is held that when there is a gap of nearly nine years in between the two signatures there is every possibility of disguising the style of signature as to make them dis-similar with the disputed signature and there are no contemporaneous signatures for comparison with the disputed signatures, hence dismissal of the petition for sending the suit agreement of sale by the trial Court to the hand writing is upheld by the
Hon’ble High Court. This case law is not applicable to the present case on
hand as the nature of suit and document is different and the gap in between the disputed Will, dated 03-09-1999 and the Ex.B-1 registered sale deed,
dated 18-05-2001 is within the period of two years only which is affordable
for getting expert opinion.
16.The counsel for defendants also relied another case law in a case between Sallepalli Narasimha Reddy Vs. Yerram Pedda Subbareddy which is reported in 2014(2) ALD 195 wherein it was held that when hand writing expert opined the suit pronote is forged and it is not corroborated by any evidence and the expert also gave evidence that out of experience she learnt the comparison of hand writing and having no diploma or degree in hand writing comparison. The dismissal of the suit basing on the un- corroborated opinion of expert is not safe and moreover, when there is a 10 convincing and legally admissible direct evidence in proof of execution of the pronote by the defendant and that too when there is no discrepancies in the testimony of the witnesses with regard to date, time and place of execution of the pronote and it is held that the plaintiff is entitled for recovery of suit amount.
17.In this case also P.W.6 hand writing expert admittedly has no educational qualification to give expert opinion but he gave Ex.X-1 opinion stating that the signature on the disputed Ex.A-2 Will belongs to the
Mullapudi Naganna by comparing the same with Ex.B-1 sale deed. The independent oral evidence of P.W.2 who stated that Ex.A-2 Will was executed in Ananthapalli Sub-Registrar’s office on 03-09-1999, the P.W.2 denied the suggestion that he insisted the defendants 1 and 2 to give up their rights in the properties of Satyanarayana by taking Rs.10 lakhs and when the defendants refused they created Ex.A-2 Will by forging the signature of the
Naganna by colluding with the plaintiff. Infact, there is no such pleading in the written statement.
18.The P.W.3 who is also another attestor stated in his cross examination that at the time of Ex.A-2 Will, the Naganna brought the original partition deed and after perusing the said partition deed only Ex.A-2 was drafted and he identified the signature of Naganna on Ex.B-1 sale deed.
Even though, there is slight variation in respect of reaching the
Sub-Registrar’s office on the date of Ex.A-2 Will by all the attestors and the same would not give any doubt on the execution of Ex.A-2 Will because the
P.W.2, P.W.3 are around aged about 60 years by the time of giving their evidence and there is a gap of 14 years in between Ex.A-2 Will and the date of giving their evidence. The P.W.3 denied the suggestion that the signature on the Ex.A-2 Will is not belong to Naganna. The P.W.3 voluntarily stated that due to age gap there will be variations in the signatures. The P.W.5 who 11 is said to be another attestor on Ex.A-2 Will stated that now he cannot identify the signature of Naganna, but he saw the signatures at the time of agrrement of sale and he never saw his signature. The counsel for plaintiff treated the P.W.5 as hostile and he was permitted to put the questions to
P.W.5 in the nature of cross examination. The P.W.5 stated that the signature shown to him on Ex.A-2 Will at serial No.3 in the end belongs to him and it was written at the office of Sub-registrar by that time and merely because he was brought by the mother of the plaintiff to give evidence, his evidence cannot be brushed aside totally. There is no suggestion to the P.W.5 that the signature of the Naganna is forged on the Will.
19.The other contention of the defendants is that the Ex.A-1 partition deed, dated 03-10-1963 is only a nominal document and it was executed only in anticipation of Land Ceiling Laws and the said partition deed is never acted upon. The said Mullapudi Naganna and his son
Satyanarayana lived as a single family and the Naganna agreed only to take maintenance by giving up all his rights in the family properties in favour of his son who maintained him till his death, hence after demise of Mullapudi
Naganna, the plaintiff and defendants 1 and 2 would get equal rights in the suit schedule property. But, the 1st defendant who is examined as D.W.1 stated in her cross examination that her father lived in Vellachintalagudem which is her maternal grandmother’s village by selling his properties in
Atchannapalem which is his native place. The 2nd defendant who is examined as D.W.2 also stated in her cross examination that to her knowledge, his father ie., Mullapudi Satyanarayana and his 1st wife lived in
Vellachintalagudem and by that time her paternal grandfather ie., Naganna was living in Atchannapalem. The D.W.2 also stated that her paternal grandfather lived with his wife during her life time and also subsequent to her death in Atchannapalem. Therefore, the contention of defendants that 12
Mullapudi Nagayya and his son lived as a single family is not believable.
20.There is no dispute with regard to the suit schedule property fell to the share of Mullapudi Naganna admittedly. The defendants also did not establish as to how much extent of land their family possessed and due to the apprehension of the Land Ceiling Act, the Ex.A-1 partition deed was executed nominally. The 1st defendant/D.W.1 stated in her cross examination in 1st page, 3rd para that she did not know for how much extent of land, Land
Ceiling Act is applicable. The D.W.2 also stated she did not know the averment in her chief affidavit as to the partition deed, dated 03-10-1963 is only a nominal document and it is never acted upon, she also did not know how much extent of land one can owns in view of Land Ceiling Act and she also did not know when the said Act came into force. The D.W.2 also stated she did not know the averment in her chief affidavit that in anticipation of
Land Ceiling Act, the above partition deed was executed. Therefore, the plea of defendant that partition deed is only a nominal one and it is never acted upon is not tenable and accepted.
21.The Ex.A-1 partition deed shows that even though Mullapudi
Naganna and his son Satyanarayana partitioned their properties and if whenever they intend to sell away their respective properties individually, the other party also has to sign in the said document. The 1st defendant/D.W.1 stated it is mentioned in Ex.A-1 partition deed that if any sharer intends to sell his share the other party also must sign. Merely because the father of the defendants 1 and 2 also signed in Ex.B-1 sale deed, the Ex.A-1 partition deed cannot be vitiated, in view the specific recital in Ex.A-1 partition deed.
22.Therefore, admittedly the suit schedule property ie., Ac.0.97 cents fell to the share of Mullapudi Naganna under Ex.A-1 partition deed.
The D.W.2 also stated that her father, his 2nd wife and her paternal 13 grandfather lived together at Atchannapalem. Hence, the said Mullapudi
Naganna executed a Will in favour of his grandson ie., plaintiff on 03-09-1999 as he resided along with his son and his 2nd wife who is mother of the plaintiff. The 1st defendant/D.W.1 stated her marriage was held during life time of her mother and the marriage of 2nd defendant was held even
before her father married 2nd time. As the said Naganna lived with the
parents of the plaintiff, there is a probability of executing a Will in favour of his grandson ie., plaintiff out of love and affection as admittedly by the 2nd defendant/D.W.2 in her cross examination that the plaintiff was born during life time of the Naganna. Thus, the plaintiff established the Will,
dated 03-09-1999 by way of examining his mother as P.W.1, by examining
the attestors and also by sending the same to hand writing expert and by marking Expert’s opinion.
23.The counsel for defendant vehemently argued that the hand writing expert though gave his opinion stating the signature on the Ex.A-2
Will belongs to the Mullapudi Naganna after comparing the same with the
Ex.B-1 sale deed, but the hand writing expert stated in his cross examination that he has no evidence to prove that he used highly sophisticated instruments in this case, he has no educational qualification regarding hand writing expert, he has no right to give independent expert opinion, he also stated as per his opinion the signatures on the Will which is marked as Q1 to
Q3 are variance and as per the standards also Q1 to Q3 are variance.
24.The hand writing expert also stated there is variance in the signature of the Mullapudi Naganna in between the Ex.A-2 Will and Ex.B-1 registered sale deeds. He also stated all letters in variation in signatures Q-1 to Q-3 on the Will and S-1 to S-8 are not similar, but he denied the suggestion that there are fundamental diferences and there are no similarities in signature in between Q-1 to A-3 and S-1 to S-8. The P.W.6 14 hand writing expert also denied the suggestion that there are no similarities in between S-1 to S-8 and Q-1 to Q-3 and he also denied the suggestion that he did not follow proper scientific methods and forensic procedure and he gave Ex.X-1 report at the influence of the plaintiff. The defendants having took strong objection to the report of hand writing expert did not take steps to send the said disputed Will to another hand writing expert for getting 2nd opinion. Non taking steps by the defendants gives adverse inference to the case of the defendants. Hence, it is concluded that the Will, dated 03-09-1999 is true, valid and binding on the defendants and the Ex.A-1 partition deed, dated 03-10-1963 is not vitiated by Ex.B-1 sale deed, dated 18-05-2001. Accordingly, issue No.1 and 2 are answered.
25. Issue No.3 & 4 :
3. Whether the plaintiff is in possession and enjoyment over suit schedule property as a rightful owner?
4. Whether the registered sale deed, dt.18-11-2013 executed by
1 st defendant in favour of 3 rd defendant is true, valid and
binding on the plaintiff?
As both issues are inter related, hence they are taken commonly for discussion.
26.The 2nd defendant/D.W.2 stated in her cross examination at page
No.3 in 2nd para 1st line that the mother of the plaintiff is still today raising vegetable crops in the suit schedule property and providing education to the plaintiff. However, the D.W.2 voluntarily stated the plaintiff is cultivating the suit schedule property by deducting her share of Ac.0.29 ½ cents, but the defendants did not file a single piece of document or adduce any independent oral evidence showing that the 2nd defendant is in possession and enjoyment of Ac.0.29 ½ cents. Therefore, it is safely concluded that the plaintiff has been in possession and enjoyment of the suit schedule property as on the date of filing of the suit in view of the admission made by the
D.W.2. The 1st defendant/D.W.1 stated in her cross examination at page 15
No.3, 1st line that it is not mentioned in Ex.A-4 sale deed executed by her in favour of the 3rd defendant, the Ex.A-4 property was delivered to her through
Court. When, the 1st defendant herself did not get possession of the Ex.A-4 property, the delivery of the same to the 3rd defendant is not believable.
27.The D.W.3 who is a purchaser of a part of the suit schedule property from the 1st defendant under Ex.A-4 sale deed also stated in his cross examination that he never visited the suit schedule property, hence he cannot give the total extent of property in R.S.No.375. The D.W.3 purchased some part of suit schedule property under Ex.A-4 sale deed, dated 18-11-2013 executed by the 1st defendant in his favour, but surprisingly the
D.W.3 stated he did not know which crop is raised at present in the Ex.A-4 and also in other property which shows that he is not in possession of the
Ex.A-4 property. The D.W.3 also stated he did not know whether plaintiff’s mother has been raising vegetable crops in the Ex.A-4 and other property, but he did not deny it and he simply gave evasive answer. The D.W.3 also stated he did not know the total extent in R.S.No.375 in which he purchased some property, he also did not know on which side share in the total extent of property he purchased under Ex.A-4, he did not know who put the signature as identifying the witness, he did not know who scribed Ex.A-4 document, he did not know how his vendor got Ex.A-4 property and there is no document to show that he paid Rs.2,80,000/- to his vendor shows that the Ex.A-4 registered sale deed, dated 18-11-2013 is only a nominal and sham document and that too it was executed during pendency of this suit, hence the Ex.A-4 sale deed is not true, valid and binding on the plaintiff.
Accordingly, issue No.3 and 4 are answered.
28. Issue No.5 :
5. Whether the suit is barred by res-judicata?
The 1st defendant/D.W.1 stated his father married 2nd time even before 16 she filed a suit in OS.383/1993 as her mother died. The D.W.1 also stated that in cross examination, dated 08-07-2019 at page No.2 at 4th line that she did not show her paternal grandfather as a party in OS.383/1993 who was alive by that time and who died admittedly on 03-12-2001.
29.The 2nd defendant/D.W.2 also stated in her cross examination that she did not know whether her paternal grandfather was shown as a party in OS.383/1993 or not. Admittedly, the suit schedule property in this suit was fallen to the share of paternal grandfather of the defendants 1 and 2 under the Ex.A-1 registered partition deed and a suit for partition filed by the defendants in OS.383/1993 without showing their paternal grandfather who was alive and in whose favour the suit schedule property was fallen towards his share as party, hence the exparte decree and Judgment in
OS.383/1993 is not binding on the plaintiff for want of necessary party which
goes to the root of the case and cut the root the case.
30.Admittedly, the suit in OS.383/1993 was decreed exparte in the year 1994 and the final decree petition is filed in the year in the year 2004 ie., after ten years of the decree and Judgment also gives suspicion with regard to conduct of the defendants 1 and 2 which gives adverse inference to the case of defendants.
31.At this juncture, the counsel for plaintiff also relied a case law in a case between Bank of India Vs.M/s Mehatha Brothers and others which is reported in AIR 1991 Delhi 194 wherein it is held that when the parties in earlier and subsequent case are not one and the same and the issue raised directly and substantially in later case is not so raised in earlier case and the matter is not argued in depth, hence the principle of res- judicata is not attracted.
32.This case law is aptly applicable to the present case on hand because the earlier suit ie., OS.383/1993 is only for partition whereas the 17 present suit is for declaration of title, the original owner of the suit schedule property ie., Mullapudi Naganna is not shown as a party in OS.383/1993 and the OS.383/1993 is only an exparte decree and it was not argued in depth by contesting keenly, hence the present suit is not barred by res-judicate and the Ex.B-2 certified copy of decree and Judgment in OS.383/1993 and
Ex.B-3 certified copy of final decree and order in IA.783/2004 in
OS.383/1999 are not valid and not useful to the case of the defendants.
Accordingly, issued No.5 is answered.
33.Issue No.6:
6. Whether the plaintiff is entitled to be declared as absolute
owner of suit schedule property by virtue of Will, dt.3-9-1999
and for consequential permanent injunction restraining the
defendants from interfering plaintiff's possession and
enjoyment over the suit schedule property?
34.The 2nd defendant/D.W.2 stated in her cross examination that
D.W.1 is her elder sister, the plaintiff namely Pavan Kalyan is her younger brother. The defendants 1 and 2 were born through the 1st wife of their father Mullapudi Satynarayana whereas the plaintiff was born through the 2nd wife of their father and there is no dispute with regard to the relation.
The D.W.2 also stated that they visited the house of plaintiff even after death of their father and they also visited the house of plaintiff till the plaintiff filed this suit.
35.There is no dispute with regard to ownership of Mullapudi
Naganna over the suit schedule property as D.W.1 stated in her cross examination, dated 08-07-2019 in the 1st page at 2nd para last line that the partition deed, dated Ex.A-1 shows the suit schedule property fell to the share of her grandfather. The D.W.2 also stated in her cross examination,
dated 23-07-2019 in the 3rd para 2nd line that the suit schedule property was
fallen to the share of Mullapudi Naganna. The plaintiff also established the execution of Ex.A-2 Will in his favour by his grandfather by way of adducing 18 oral evidence and also by sending the Will to the hand writing expert and by marking expert report. The defendants themselves admitted the possession of the plaintiff over the suit schedule property. Even though, it is elicited from the cross examination of P.W.4 that several attempts took place to do compromise, it would not take away the rights of the plaintiff.
36.The D.W.1 stated in her cross examination that she did not show either the 2nd wife of his father or the son of his 2nd wife as legal heirs of her father even though she showed her father as died in the Execution petition in OS.383/1993. The D.W.2 also stated that by the time he filed Execution petition in EP.61/2010, this suit was spending. The D.W.2 also stated they did not show the plaintiff in this suit and his mother as parties in the
Execution petition even though they showed their father as died.
Admittedly, the both Execution petitions filed by the defendants 1 and 2 for delivery of the suit schedule property basing on a exparte decree in
OS.383/1993 without showing the plaintiff herein itself shows that they are
trying to interfere with the possession and enjoyment of the plaintiff who is a rightful owner. Therefore, it is safely concluded that the plaintiff is entitled to be declared as absolute owner of suit schedule property by virtue of Will, dt.3-9-1999 and for consequential permanent injunction restraining the defendants and their men from interfering with the plaintiff's possession and enjoyment over the suit schedule property. Accordingly, issue No.6 is answered.
37. Issue No.7 :
To what relief ?
In the result, the suit is decreed with costs declaring that the plaintiff is absolute owner of the plaint schedule property by virtue of a Will,
dated 3-9-1999 executed by his grandfather Naganna and the defendants
and their men are restrained by way of permanent injunction from ever 19 interfering with the possession and enjoyment of the plaintiff over the plaint schedule property.
Typed to my dictation to Stenographer, on computer, corrected and pronounced by me in the open court, this the 28 th day of November , 2019.
PRINCIPAL JUNIOR CIVIL JUDGE,
TADEPALLIGUDEM.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS:
P.W.1 : Mullapudi Baby Sarojini
P.W.2 : Jalaparthi Satyanarayana
P.W.3 : Pakalapati Nageswararao
P.W.4 : Kasukurthi Narasarao
P.W.5 : Kasukurthi Suryachandararao
P.W.6 :Nomula Krishna Prasad (Hand writing expert)
FOR DEFENDANTS:
D.W.1 : Yendapalli Veera Venkata Satya Durga Lakshmi
D.W.2 : Katuri Sai Jyothi
D.W.3 : Akurathi Venkateswarlu
DOCUMENTS MARKED
FOR PLAINTIFFS:
Ex.A-1: Certified copy of registered partition deed, dt.01-10-1963 Ex.A-2: Will, dt.03-9-1999 executed by the Mullapudi Naganna in favour of plaintiff Ex.A-3: Death certificate of Mullapudi Naganna, S/o Veeraiah, dt.5-3-2002 Ex.A-4: Registered sale deed, dt.18-11-2013 executed by the 1st defendant in favour of 3rd defendant Ex.A-5: Certified copy of order in EA.423/2009 in EP.162/2009 in
OS.383/1993, dt.3-6-2019
FOR DEFENDANTS:
Ex.B-1 : Registered sale deed, dated 18-5-2001 Ex.B-2 : Certified copy of decree and Judgment in OS.383/1993 Ex.B-3 : Certified copy of final decree and order in IA.787/2004 in
OS.383/1993 along with commissioner report
THROUGH COURT :
Ex.X-1:Hand writing expert opinion
P.J.C.J.,TPG.
20
Plaint presented on :05-03-2009 Plaint filed on:05-03-2009
IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE ::TADEPALLIGUDEM
Present: Sri M.S.Karimulla,
Principal Junior Civil Judge
Monday, the 25th day November, 2019
O .S.No.84/2009
21
Between:
Mullapudi Naga Pavan Kalyan, S/o late Satyanarayana, 11 years, Student, being minor rep.by guardian mother Baby Sarojini, Achannapalem, Nallajerla Mandal, TPG PJCJ.
...Plaintiff
And
1.Yendapalli Veera Venkata Satya Durga Lakshmi, W/o Krishna, 40 years, Hindu, Female, House wife, Vellachintalagudem, Gopalapuram Mandal, KVR PJCJ
2.Katuri Sai Jyothi, W/o Bhairava Kumar, 37 years, Hindu, Female, House wife, Andaluru, Veeravasaram Mandal, BVRM, PJCJ.
3.Akurati Venkateswarlu, S/o Lakshmanayaswamy, 59 years, D.No.5-3-17, Gandhinagar, Sill Campus, Palvancha, Khammam Dist., (3rd defendant added as per orders in IA.641/2014, dt.29-6-2015)
..Defendants
This is a suit filed by the plaintiff against the defendants 1 to 3 praying this Court for declaration of his title over the suit schedule property by virtue of the Will, dated 3-9-1999 and also consequential injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property by stating as hereunder;
VALUATION OF THE SUIT:- The relief of declaration and consequential injunction is valued U/s 24(b) of APCF & SV Act. An extent of 97 cents in RS.375/1A is valued Rs.1,95,000/- and it comes to RS.1,89,150/- in that half of the same comes to .Rs.94,575/-
Upon which a Court fee of Rs.3,346/- is paid U/s 24(b) Sch.1 Art.1 (b & c) of APCF & SV Act CAUSE OF ACTION:-suit arose on and from 1963 when the schedule property fell into the share of deceased Mullapudi Naganna, on 3-9-1999 when the said Naganna executed the Will in favour of plaintiff by bequeathing the properties on 3-12-2001 when the said Naganna was died and plaintiff got properties by virtue of Will and on all dates when the defendants are making proclamations in the village and from the last fifteen days when the defendants are trying to make forcible entry into the schedule property by taking advantage of their father's death at Nallajarla where the schedule property is situated within the jurisdiction of the Hon'ble Court. This suit coming on 15-11-2019 for final hearing before me in the presence of Smt. G.K. Durga Devi, Advocate for Plaintiff and of Sri J.V. Ramana, Advocate for defendants 1 and 2 and of Sri T. Sampat Kumar, Advocate for 3rd defendant and the matter having stood over for consideration till this day, the Court delivered DOTH ORDER AND DECREE as follows :
1.that the suit be and is hereby decreed
2.that the plaintiff be and is hereby declared that he is the absolute 22 owner of the plaint schedule property by virtue of the Will, dated 3-9- 1999 from his grandfather Naganna
3.that the defendants be are restrained by way of granting permanent injunction from ever interfering with the possession and enjoyment of the plaintiff over the plaint schedule property.
3.that the defendants do pay an amount of Rs.------- to the plaintiff (Copy of plaint schedule attached to decree)
Given under my hand and the seal of this Court, this the 25 th day of November, 2019.
PRINCIPAL JUNIOR CIVIL JUDGE,
TADEPALLIGUDEM
MEMO OF COSTS.
For PlaintiffFor Defendants
Stamp on Vakalat 2-00 2-00 Plaint fees411-00-- Process fees---- Pleaders fees--3,000-00
Total :413-003,002-00
PJCJ, TPG 23
Typed to my dictation to Stenographer, on computer, corrected and pronounced by me in the open court, this the 28 th day of November , 2019.
PRINCIPAL JUNIOR CIVIL JUDGE,
TADEPALLIGUDEM.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS:
P.W.1 : Mullapudi Baby Sarojini
P.W.2 : Jalaparthi Satyanarayana
P.W.3 : Pakalapati Nageswararao
P.W.4 : Kasukurthi Narasarao
P.W.5 : Kasukurthi Suryachandararao
FOR DEFENDANTS:
D.W.1 : Yendapalli Veera Venkata Satya Durga Lakshmi
D.W.2 : Katuri Sai Jyothi
D.W.3 : Akurathi Venkateswarlu
DOCUMENTS MARKED
FOR PLAINTIFFS:
24
Ex.A-1: Certified copy of registered partition deed, dt.01-10-1963 Ex.A-2: Will, dt.9-9-1999 Ex.A-3: Death certificate of Mullapudi Naganna, S/o Veeraiah, dt.5-3-2002 Ex.A-4: Registered sale deed, dt.18-11-2013 executed by the 1st defendant in favour of 3rd defendant Ex.A-5: Certified copy of order in EA.423/2009 in EP.162/2009 in
OS.383/1993, dt.3-6-2019
FOR DEFENDANTS:
Ex.B-1 : registered sale deed, dated 18-5-2001
Ex.B-2 : Certified copy of decree and Judgment in OS.383/1993
Ex.B-3 : Certified copyo f final decree and order in IA.783/2004 in
OS.383/1993 along with commisisoenr report
P.J.C.J.,TPG.
25