IN THE COURT OF III ADDITIONAL JUNIOR CIVIL JUDGE AT
VIJAYAWADA
Present: - Smt. M. Shyam Sree, LL.B., III Additional Junior Civil Judge, Vijayawada.
Thursday, this the 21st day of March, 2013
Original Suit No.439/12
Between:
Mynampati Venkata Subbaiah ..PLAINTIFF
And
1.Pantla Vara Lakshmi 2.Velagapudi Sambasiva Rao 3.Velagapudi Siva Rama Krisha
4.Velagapudi Seetha Ramaiah ..DEFENDANTS
This suit is coming on this day for final hearing on 27.2.13 in the presence of Sri I.Venkateswara Rao, Advocate for the plaintiffs and of Sri P.L.Prabhakar, Advocate for the defendantNo.1 and of Sri P.D.S. Narayana, advocate for the defendant No.2 to 4 and upon hearing both sides and perusal of the material on record, the Court delivered the following:
JUDGMENT
1. This is a suit filed by the plaintiff to grant mandatory injunction against the 1st defendant, and her men, followers etc., directing her to remove the structure raised in the 10 feet width path way and direct all the defendants not to raise any structures therein herein afterwards as shown in the plaint plan and for costs of the suit.
2. The averments made in the plaint in brief are:
On 14.11.68 One Mynampati Venkataiah purchased the suit schedule property from Vekagapudi Tataiah and others with his self earnings under registered sale deed. The said Venkataiah executed a will dt:26.12.1999 which was attested Notary Public Late under Notary, bequeathed his property to his daughter Maddineni Padmavathi as he has no male children. The said Venkataiah died on 10.8.2001. The total 2 extent is Ac.0-84cents. Out of Ac.0-84cents the said Maddineni
Padmavathi executed a gift deed in favour of the plaintiff on 16.6.04 for an extent of Ac.0-42cents of wet land in R.S.No.25/8 situated in
Tadigadapa on the southern side of the entire property and delivered the possession of the same on the same day. Since then the plaintiff has been in peaceful possession and enjoyment of the property. On the
Northern boundary of the schedule property i.e. in the land of the 2 to 4 defendants there is 10 feet width passage left for the ingress and egress of the adjacent land owners to reach their lands and to water to their lands from the well situated on North-West corner of the plaint schedule property to lay Pantabode, in which the plaintiff’s predecessor by name Velagapudi Tataiah and his sons are having 1/5th share was also conveyed by them to Mynampati Venkaiah. The 2 to 4 defendants by ignoring the said fact and by encroaching into the said 10 feet width way and divided their land into plots by un-authorized laying out without being approved by any authorities and sold an extent of 96.75square yards of side to the 1st defendant on 22.8.09 under registered sale deed, in the said sale deed they have intentionally mentioned their southern boundary as the land sold by Mynampati Venkataiah to others instead of mentioning the 10 feet width way left among them. The 1st defendant in collusion with other defendants have started construction of R.C.C roof building adjacent to the site of the plaintiff by encroaching 10 feet width way also. The plaintiff’s son by name Mynampati
Sreenivasulu raised objection for constructing the building in the path way by the 1st defendant by sending representation to the Collector and
M.D.O. On 10.5.12, but the 1st defendant failed to stop her illegal construction and in collusion with other defendants by suppressing the real facts filed the suit O.S.No.42/12 on the file of District Judge-cum-
Vacation Judge Court, Machilipatnam for permanent injunction against her vendors who are defendants 2 to 4 and plaintiff’s son Mynampati
Sreenivasulu. The son of the plaintiff received the summons in that suit 3 and plaintiff came to know the same. After obtaining injunction orders in the above suit the 1st defendant trying to complete the construction of her building by encroaching 10 feet width passage also. The plaintiff is entitled to file this suit against the defendants to protect his easementary right. Hence, the suit.
3. The 1st defendant filed written statement and denying all the material allegations made in the plaint. The 1st submits that the plaintiff is the absolute owner of Ac.0-42cents of land in R.S.No.25/8 and the defendants 2 to 4 are the absolute owners of the land situated in
R.S.No.25/1 adjacent land of the plaintiffs. Originally both the lands are agricultural lands. Now both the plaintiff and the defendants 2 to 4 are divided into house plots and sold away to others. The 1st defendant purchased 96.75square yards of house plot from D2 to D4 under a registered sale deed dt:22.8.09, after purchasing the same the defendant No.1 is absolute owner of the plaint schedule property and they constructed a thatched house in the said property and resided along with her husband. Later the 1st defendant getting approved plan and constructed a house in her property. The defendants 2 to 4 and plaintiff colluded to each other and trying to encroach into the property of the 1st defendant and making obstructions to construct the RCC building in her property not the part of the plaint schedule property and they are demanding the 1st defendant to pay more amount as the rates are very high in the present market and threatened her with dire consequences. The 1st defendant filed lodged complaint in Penamaluru
P.S. and filed suit in O.S.No.42/12 in Vacation court and obtained temporary injunction and re-numbered as O.S.No.416/12 on the file of
Prl. Junior Civil Judge, Vijayawada. The 1st defendant further submits that now the lands are converted into a house plots and there are no agricultural lands for cultivation purpose and there is no well in the northern edge of the plaint schedule property the easementary rights 4 ceased when the lands are converted into residential plots. The plaintiff is having right over Ac.0-42cents of land only. The easementary right is only for purpose of cultivating the lands. There is no mutual written understanding in between the plaintiff and D2 to D4. Actually the 10 feet width passage belongs to the D2 to D4 the grand father of D2 to D4 may allow using the water facility. It can not create any constructive right over 10 feet width passage is for the plaintiff. The plaintiff colluded D2 to D4 filed this false suit to get wrongful gain and to cause loss to the 1st defendant. Thus prayed to dismissal of the suit.
4. The 2nd to 4th defendants filed written statement and denying all the material allegations made in the plaint. The defendants 2 to 4 submits that they are having Ac.1-75cents and they jointly sold away Ac.1-00 of land to 3rd parties in the year 1980. There after the 1 to 4 having Ac.0-75cents only. The plaintiff did not having any right over the entire property of D2 to D4. The plaintiff and their co-sharers and adjacent land owners occupied Ac.0-10½cents out of Ac.075cents of land of D2 to D4 and suppressed the facts and filed the false suit against the defendants with a created and fabricated documents. D2 to
D4 sold away 193.71 square yards out of Ac.0-75cents to one Ravuri
Venugopal Reddy on 4.12.2000 and also sold away Ac.0-61½ cents to different persons, the plaintiff with an evil intention to use the remaining Ac.0-13½cents of land by defendants 2 to 4 filed this false suit against them. If the plaintiff really having any right they have tobe object in the year 2000 while the 1st registration made by D2 to D4 to the 3rd party and the said bonafide purchaser is in possession of the property. The plaintiff is not entitled any claim or right against the properties belongs to D2 to D4 and their bonafide purchasers. Thus prayed to dismissal of the suit.
4. On the strength of the above rival pleadings, the following issues are framed for trial:
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1) Whether the 10 feet width passage was left for ingress and egress towards northern side of plaintiff’s land ? If so whether the plaintiff have any right upon it ?
2) Whether 1st defendant constructing the building by encroaching 10 feet width passage ?
3) Whether the plaintiff is entitled for the relief of mandatory injunction against the 1st defendant as prayed for ?
4) To what relief?
5. On behalf of the plaintiff, P.W.1 to 3 are examined and Ex.A1 to Ex.A6 are marked. On behalf of the defendants, D.W.1 and DW2 are examined and Ex.B1 and B2 are marked.
6. Heard arguments.
ISSUE No.1 :
7. The admitted facts of the case are that the plaintiff and defendants do not dispute each other’s title over their respective lands but the contention of the plaintiff is that towards northern side of his land 10 feet passage was left by their ancestors upon which he has a joint right. But the 2 to 4 defendants have sold away their plots along with 10 feet width passage. The 1st defendant who was one of the vendee of 2 to 4 defendants had raised construction in the disputed 10 feet width passage.
8. Whereas the defendants dispute the existence of such passage now as long back the well has been closed and no agricultural operations are being done in the land of either plaintiff or defendants and the said 10 feet width passage is their exclusive land and they have title and right to sell the same.
9. The plaintiff approached the court so the burden rests upon him to establish his contention and to prove the same the plaintiff’s son got examined as Pw.1 and got marked Exs.A1 to A6. As seen from the cross examination of Pw.1 he admits that the 1st defendant did not construct 6 in the extent of Ac.0-42cents which is the plaint schedule and the property belonging to the plaintiff admittedly he do not claim any title beyond Ac.0-42cents of land which was neither encroached nor any obstruction has been caused to his enjoyment. This 10 feet width passage is situated beyond Ac.0-42 cents of land towards northern side upon which the plaintiff claims right. In the plaint the plaintiff stated categorically that:
“Originally the property of the plaintiff and defendants 2 to 4 belongs to the same family, the entire property is the agricultural land. To water their lands there is well in the land of the plaintiff on the North- west edge, they have left 10 feet width way on the northern side of plaintiff’s land i.e. in the land of the defendants 2 to 4 herein to reach the well and to lay pantabode to water their lands in which the plaintiff’s predecessor in title by name Velagapudi Tataiah and his sons are having 1/5th share was also conveyed by them to Mynampati Venkataiah”.
10. So, as seen from the pleadings of the plaintiff it is admitted that the said 10 feet width passage is situated in the land of 2 to 4 defendants. Whereas in the cross examination that the son of the plaintiff stated that the 1st defendant is raising construction upon the passage belonging to them and she also encroached the path way of 10 feet of their land. So, Pw.1 had gone contrary to the pleadings of the plaint so to extract the truth the plaintiff was not examined in the suit, it is only the son of the plaintiff who was examined and he claims title upon the disputed path way. However, either the plaintiff or his son relies upon the documents for establishing their right.
11. So, let us evaluate documentary evidence adduced by the plaintiff. Through Ex.A1 Maddineni Padmavathi gifted the plaint schedule property to the plaintiff in which the northern boundary is shown as “Motubaviki povu Adugu 10 Vedalpu gala Dari Haddu” so the land which is within this boundary that has been gifted to the plaintiff.
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But there was no mention with regard to the joint right in the said Ex.A1 gift deed. Originally under Ex.A2 Velagapudi Rattaiah had sold the schedule property to Velagapudi Tataiah from whom the Mynamapati
Venkataiah had purchased the schedule property along with the other property and the said Mynampati Venkataiah through will bequeathed the schedule property to the Maddineni Padmavathi. As seen from
Ex.A2 it is clearly mentioned as:
“Eee Haddula Madya Ac.0-84cents Ee Nambarulo Makunnu, Maa Sodarulukunnu jointga vundutakunnu 10 adugula vedalpugala Mota Bhavi shed stalamulonu Neeti Bodelu, Darulu stalamulonu Maku vunchukunna 1/5th vantu joint Hakkuto Ee rojuna neeku vikrayinchina Bhumiki rabadina Vata joint hakkuto saha neeku vikrayinchadamynadi”
And the northern boundary is shown as joint path way. But it is not mentioned that the width of the path way is 10 feet it is well i.e. width of 10 feet and un disputedly the said well is situated in the land of the plaintiff itself. Therefore, the northern boundary owners of the schedule property might have left the passage to reach the well situated in the plaintiff’s land. But the plaintiff in no way can use the said passage as the passage is meant only to reach the well and when the well is situated in the plaintiff’s land itself there is no question of using the said path way . Mover ever the width nor any features of the said path way had been mentioned in the mother document i.e. Ex.A2 and there is no iota of evidence adduced by the plaintiff regarding the width or that they ever used the said path way.
12. It is for the benefitial enjoyment of the defendants the recital has been inserted as earlier all these lands were agricultural lands and if no joint right was given upon the well and the way to reach the well the agricultural operations can not be taken up. But as the time went on the agricultural lands were converted into the residential plots and now 8 nobody using the said well. For that matter the joint right has tobe exercised even upon and 10 feet width well which is situated in the land of the plaintiff. But the plaintiff do not whisper regarding the joint right of defendant over the 10 feet width well which is situated in his own land only claim joint right over passage. It is clear that neither of plaintiffs are exercising their joint right there after for that reason only there is no recital in Ex.A2 gift deed with regard to the joint right.
Plaintiff claims his title and right on the basis of Ex.A2, when the executant of Ex.A2 itself not given any joint right then how the plaintiff can claim is remained unexplained. More over even in the will Ex.A5 through which the schedule property was bequeathed to Maddineni
Padmavathi also there is no mention of either joint right or even the boundaries Therefore, restraining the defendants from enjoying their own land is not justifiable and plaintiff legally can not do so as he did not inherit any right over alleged 10 feet width of passage. It has tobe clarified by the plaintiff that how he had mentioned the width of the path way as 10 feet and what is the basis for its measurement.
Therefore, the plaintiff failed to establish the existence of 10 feet width passage and his right upon it Accordingly this issue is answered.
ISSUE No.2:
12. Admittedly the 1st defendant has constructed the building in the land purchased by her but according to the plaintiff that she encroached 10 feet width passage, when the plaintiff failed to establish that 10 feet width passage is in existence the question of encroaching by the 1st defendant does not arise. Accordingly this issue is answered.
ISSUE No.3:
13. As the plaintiff failed to establish the existence of 10 feet width passage and his right over it he is not entitled for the mandatory injunction against the 1st defendant as prayed for. Accordingly this issue is answered.
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ISSUE No:4
14. IN THE RESULT, the suit is dismissed without costs.
Dictated to the Personal Assistant of this Court and after transcribed
by her, corrected and pronounced by me in the open Court, on this the 21st day of March, 2013.
III ADDITIONAL JUNIOR CIVIL JUDGE,
VIJAYAWADA.
APPENDIX OF EVIDENCE
(WITNESSES EXAMINED FOR)
PLAINTIFFS: DEFENDANTS
PW1 – MSrinivaslu D.W.1: V.Seetharamaiah D.W.2: P.Vara Lakshmi
DOCUMENTS MARKED
FOR PLAINTIFFS:
Ex.A1 : dt:16.6.04, Registered gift deed Ex.A2 : dt:20.9.1952, Registered sale deed Ex.A3 : Dt:22.8.09, registered sale deed Ex.A4 : served copy of plaint in O.S.No.416/12 Ex.A5 : dt:26.12.1999, copy of will Ex.A6 : Death certificate of M.Venkataiah
EXHIBITS MARKED FOR DEFENDANTS
Ex.B1 – dt:8.7.12, Copy of Adangal Pahani Ex.B2 – dt:20.6.12, Encumbrance Certificate.
III ADDITIONAL JUNIOR CIVIL JUDGE:
VIJAYAWADA
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IN THE COURT OF III ADDITIONAL JUNIOR CIVIL JUDGE AT
VIJAYAWADA
Present: - Smt. M. Shyam Sree, LL.B., III Additional Junior Civil Judge, Vijayawada.
Thursday, this the 21st day of March, 2013
Original Suit No.439/12
Between:
Mynampati Venkata Subbaiah, s/o.Peda Venkataiah. Hindu, 64 yrs., Properties, D.No.76-8—18/1A,
Besides Swathi Theatre, Bhavanipuram, Vijayawada ..PLAINTIFF
And
1.Pantla Vara Lakshmi, w/o.Venkata Rao, Hindu, 28 yrs., House wife and properties, Durgamahal complex, Patamata, Vijayawada.
2.Velagapudi Sambasiva Raom s/o.Late Bushaiah, Hindu, 56 yrs., D.No.20-18, Yenamalakuduru, Penamaluru Mandal.
3.Velagapudi Siva Rama Krisha, s/o. s/o.Late Bushaiah, Hindu, 54 yrs., D.No.20-18, Yenamalakuduru, Penamaluru Mandal.
4.Velagapudi Seetha Ramaiah, s/o.Late Bushaiah, Hindu, 49 yrs., D.No.20-18, Yenamalakuduru, Penamaluru Mandal.
..DEFENDANTS
1. This is a suit filed by the plaintiff to grant mandatory injunction against the 1st defendant, and her men, followers etc., directing her to remove the structure raised in the 10 feet width path way and direct all the defendants not to raise any structures therein herein afterwards as shown in the plaint plan and for costs of the suit.
2. Plaint presented on 4.6.12
3. Value of the suit for the purpose of court fees and jurisdiction is valued at Rs.10,000-00 as per section 50 of APCF & SV Act and on which a court fee of Rs.786/- is herewith paid u/s.26(c) of APCF & SV Act.
4. Cause of action for the suit arose on 16.6.04 when the plaintiff acquired the plaint schedule property by virtue of gift deed executed by Maddineni Padmavathi and has been enjoying the property with all easementary rights since then and on 22.8.09 when the 1st defendant purchased the property on the northern side of the plaintiff’s property from D2 to D4 with a wrong recital i.e. by eliminating the existence of 10 feet width path way by intentionally mentioning their southern boundary as the property sold to others by Mynampati Venkataiah who is the the plaintiff’s processor in title and during recent months the 1st defendant started constructing an RC.C. roof building by occupying the 10 feet width passage and on several occasions when the plaintiff and his son 11 tried interfere on that the plaintiff filed a suit vide O.S.No.42/12 and at Tadigadapa where the plaint schedule property is situated is within the jurisdiction of this Court.
5. This suit is coming on this day for final hearing on 27.2.13 in the presence of Sri I.Venkateswara Rao, Advocate for the plaintiffs and of Sri P.L.Prabhakar, Advocate for the defendantNo.1 and of Sri P.D.S. Narayana, advocate for the defendant No.2 to 4 and upon hearing both sides and perusal of the material on record, the Court doth order and decree :
(i) that the suit be and the same is hereby dismissed.
(ii) that the defendants do bear their own costs of Rs.3252/- and the plaintiff do bear his own costs of Rs.NIL.(as no bill of costs filed).
(iii)Without costs.
Copy of Plaint schedule and plan attached herewith.
Given under my hand and seal of this court, this the 21st day of March, 2013.
III ADDITIONAL JUNIOR CIVIL JUDGE,
VIJAYAWADA
MEMO OF COSTS
FOR PLAINTIFFSFOR DEFENDANT
1.Stamp on vakalat52-00
2.Stamp on plaint--
3.Stamp on process--
4.Stamp on petitionsNo bill of costs filed--
5.Sr. Advocate fees 3000-00
6.Jr. Advocate fees --
7.Typing charges100-00
8.Writing charges 100-00
TOTAL3252-00
III AJCJ::VJA
Note: The parties should apply as soon as possible for return of all exhibits which they may wish to be preserved as the record will be liable to be destroyed after three years from the date of decree of order