1
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE,
MACHILIPATNAM.
Present: M.Sreenu,
Principal Junior Civil Judge, Machilipatnam.
Monday, this the 19th day of December, 2022.
O.S.No.187 of 2015 & O.S.No.54 of 2015
O.S.No.187 of 2015:
Between:
1.Mirza Bakar Hussain (Died rep. by his L.Rs. Plaintiff Nos 2 to 6).
2.Mirza Bheebi Jhan, W/o. Late Mirza Bakar Hussain, Muslim, Aged 59 years, Housewife, R/o. D.No.14/1968290, Sundaraiah Nagar, Edepalli, Machilipatnam, Presently residing at Jalalpet, Machilipatnam.
3.Mirza Hussain Ali, S/o. Late Mirza Bakar Hussain, Muslim, Aged 35 years, Coolie, R/o. D.No.14/1968290, Sundaraiah Nagar, Edepalli, Machilipatnam, presently residing at Jalalpet, Machilipatnam.
4.Mirza Abbas, S/o. Late Mirza Bakar Hussain, Muslim, Aged 30 years, Coolie, R/o. D.No.14/1968290, Sundaraiah Nagar, Edepalli, Machilipatnam, presently residing at Jalalpet, Machilipatnam.
5.Mirza Zynab, D/o. Mirza Bakar Hussain, W/o. Suleman, Muslim, Aged 37 years, Housewife,PattilakottuCenter, Machilipatnam.
6.Mirza Shakira, D/o. Late Mirza Bakar Hussain, W/o. Khaza, Muslim, Aged 36 years, Housewife, R/o. Pattilakottu Center, Machilipatnam. (Plaintiff Nos.2 to 6 were added as L.Rs. of deceased original Plaintiff). … Plaintiffs.
A N D
1.Sakamuri Srinivasa Rao @ Srinu, S/o. Masthan Rao, Hindu, Aged 42 years, Car Driver, R/o. D.No.14/1968290, Sundaraiah Nagar, Edepalli, Machilipatnam.
Page No.1 of 28 2
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
2.Sakamuri Nagendramma, W/o. Srinivasa Rao @ Srinu, S/o.Masthan Rao, Hindu, Aged 35 years, Housewife, R/o. D.No.14/19682 90, Sundaraiah Nagar, Edepalli, Machilipatnam. … Defendants.
O.S.No.54/2015:
Between: Sakamuri Nagendramma, W/o. Srinivasa Rao @ Srinu, S/o.Masthan Rao, Hindu, Aged 35 years, Housewife, R/o. D.No.14/1968290, Sundaraiah Nagar, Edepalli, Machilipatnam. … Plaintiff.
A N D
1.Mirza Bakar Hussain (Died rep. by his L.Rs Plaintiff Nos 2 to 6).S/o. Mirza Mohammad Anis, Muslim, Aged 63 years, R/o. Jalalpet, Machilipatnam, Krishna District.
2.Mirza Bheebi Jhan, W/o. Late Mirza Bakar Hussain, Muslim, Aged 59 years, Housewife, R/o. D.No.14/1968290, Sundaraiah Nagar, Edepalli, Machilipatnam, Presently residing at Jalalpet, Machilipatnam.
3.Mirza Hussain Ali, S/o. Late Mirza Bakar Hussain, Muslim, Aged 35 years, Coolie, R/o. D.No.14/1968290, Sundaraiah Nagar, Edepalli, Machilipatnam, presently residing at Jalalpet, Machilipatnam.
4.Mirza Abbas, S/o. Late Mirza Bakar Hussain, Muslim, Aged 30 years, Coolie, R/o. D.No.14/1968290, Sundaraiah Nagar, Edepalli, Machilipatnam, presently residing at Jalalpet, Machilipatnam.
5.Mirza Zynab, D/o. Mirza Bakar Hussain, W/o. Suleman, Muslim, Aged 37 years, Housewife,PattilakottuCenter, Machilipatnam.
6.Mirza Shakira, D/o. Late Mirza Bakar Hussain, W/o. Khaza, Muslim, Aged 36 years, Housewife, R/o. Pattilakottu Center, Machilipatnam. (Defendant Nos.2 to 6 were added as L.Rs of deceased original Defendant).
...Defendants.
Page No.2 of 28 3
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
These two suits are coming before me on 07.12.2022 for final hearing in the presence of Sri P.Devendra Kumar, Advocate for the plaintiffs in O.S.No.187/2015 (defendants in O.S.No.54/2015), and of Sri Ch.Gopi Krishna, Advocate for the defendant No.2 in O.S.No.187/2015 (plaintiff in O.S.No.54/2015) as the defendant No.1 in O.S.No.187/2015 is remained exparte, and the matter is having stood over for consideration till this day, this court delivered the following:
C O M M O N J U D G M E N T
S uit in O.S.No.187 of 2015:
1. This suit is filed by the plaintiff No.1 (died, represented by his L.Rs, plaintiff Nos.2 to 6) against defendants under Section 6 of Specific Relief
Act, for recovery of possession of suit schedule house property measuring 111 sq.yards situated in D.No.14/1968290. Original plaintiff (plaintiff
No.1) died pendete lite and that his legal heirs are added as plaintiff Nos.2 to 6.
2.(a) The case of the plaintiffs in O.S.No.187/2015, in brief, is that the suit schedule property is the absolute property of deceased plaintiff No.1 (died, represented by his L.Rs. plaintiff Nos.2 to 4) and, according to them, suit schedule property was assigned by the government to one Pothana
Venkata Krishna Rao under a patta dated 02.12.1995 and that the beneficiary P.V.Krishna Rao was in possession over suit property and thereafter, on 30.08.2000, deceased original plaintiff purchased the suit schedule property from beneficiary P.V.Krishna Rao under a possessory agreement of sale and ever since, deceased plaintiff was in continuous possession and enjoyment over suit property. While so, defendants being nearby residents, had evil intention to occupy suit schedule property and that, defendant No.1 made attempts to dispossess the original plaintiff from suit schedule property on 20.08.2007 and 21.08.2007, for which the
Page No.3 of 28 4
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
original plaintiff filed a suit in O.S.No.507/2007 on the file of I Additional
Junior Civil Judge’s Court, Machilipatnam against defendant No.1 herein for permanent injunction and got decree in his favour on 19.12.2014.
According to plaintiffs, during the pendency of the suit in
O.S.No.507/2007, the original plaintiff had constructed an ACC sheet
roofed house replacing the existed thatched hut and at that time, defendant No.1 created certain documents in the name of his wife/defendant No.2 in a collusion with Municipal authorities. According to plaintiff; defendants herein have never been in possession over suit schedule property.
(b) Plaintiff further submitted that the defendant No.2, in spite of having knowledge about the decree in O.S.No.507/2007, filed the suit in
O.S.No.54 of 2015 (one of the suits on hand) and obtained interim
injunction orders in I.A.No.159/2015 from this court on 08.04.2015 and thereafter, on 13.04.2015, defendant Nos.1 and 2 have highhandedly dispossessed the original deceased plaintiff from the possession of suit schedule property under the guise of interim injunction orders and on that, original plaintiff gave a report to the police, for which, no action taken by the police in view of interim injunction orders in I.A.No.159/2015.
According to plaintiffs; defendants have fraudulently obtained interim injunction orders in O.S.No.54/2015 on the basis of a created possession certificate dated 23.06.2007 allegedly issued by Tahsildar, Machilipatnam in favour of defendant No.2 though the earlier assignment dated 02.12.1995 in favour of one P.Venkata Krishna Rao had not been cancelled. According to plaintiffs; defendants have dispossessed the original plaintiff on 13.04.2015 by taking advantage of interim injunction orders in favour of defendant No.2. Hence, the suit under Section 6 of
Page No.4 of 28 5
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
Specific Relief Act for recovery of dispossessed property as original plaintiff was dispossessed within 6 months prior to filing of the suit.
3.(a) Defendant No.1 remained exparte in the suit. Whereas, defendant No.2 contested the suit and she filed a written statement by denying the plaint averments. In written statement, defendant No.2 admitted that the suit schedule property was previously assigned to one
P.V.Krishna Rao in the year 1995. But the defendant No.2 contended that the beneficiary P.V.Krishna Rao had not constructed any house in the allotted land and on that, the revenue authorities canceled the assignment in the name of P.V.Krishna Rao on 23.06.2007 and on the same day, a possession certificate was issued in the name of defendant No.2 and since then. defendant No.2 is in possession over suit property by raising ACC roof shed. Thereafter, on 09.03.2015 the name of defendant No.2 has been mutated in municipal records and she obtained water and electricity connection. Defendant No.2 further contended that the deceased plaintiff in colluding with P.V.Krishna Rao, created a nominal possessory agreement of sale, though P.V.Krishna Rao had no saleable interest over the assigned property as per terms and conditions mentioned in the Patta, granted in favour of P.V.Krishna Rao. According to defendants, deceased plaintiff could not get any right through a possessory agreement of sale and that he is not entitled for recovery of possession of suit schedule property.
(b) Defendant No.2 further contended that neither the alleged vendor of the original plaintiff Krishna Rao nor the original plaintiff were in possession over suit schedule property. Defendant No.2 further contended that the original plaintiff, in collusion with P.V.Krishna Rao, got filed suit
Page No.5 of 28 6
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
in O.S.No.507 of 2007 against the husband of defendant No.2 (defendant
No.1) and obtained exparte decree in O.S.No.507 of 2007 by managing him. Thereafter, plaintiff mutated his name by using collusive decree in
O.S.No.507 of 2007, though the decree is not a title document. Defendant
No.2 further stated that after mutation of name of the plaintiff, he tried to interfere with the possession and enjoyment of defendant No.2 on 29.03.2015 and 04.04.2015 and on that, defendant no.2 filed a suit in
O.S.No.54 of 2015 and obtained interim injunction. Defendant No.2
further stated that suit for recovery of possession without seeking the relief of declaration is not maintainable as the original plaintiff had never been in possession over suit property even prior to 13.04.2015. It is is further contended by defendant No.2 that there is no document to show the possession of original plaintiff within 6 months prior to filing of the suit and that the suit is barred by limitation. With this, defendant No.2 prayed this court to dismiss the suit.
Suit in O.S.No.54/2015:
4.This suit is filed by the plaintiff (Defendant No.2 in O.S.No.187 of 2015) against the defendant (original Plaintiff in O.S.No.54 of 2015) for the relief of permanent injunction by restraining the defendant and their men from interfering with the possession and enjoyment of plaintiff over suit schedule property. After consolidation of the suits, original defendant
Mirza Bakar Hussain died pendete lite and that his L.Rs were brought on record.
5.The case of the plaintiff in O.S.No.54 of 2015 is that the plaintiff is the absolute owner of the suit schedule property having allotted the same
Page No.6 of 28 7
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
under a possession certificate dated 23.06.2007 and ever since, the plaintiff has been in possession and enjoyment over the same by paying municipal tax and electricity charges to the relevant authorities. Plaintiff further submitted that she being an illiterate, had obtained tax receipts in the name of her husband and after living separately from her husband, the name of the plaintiff got mutated in municipal records relating to suit schedule property. While so, original defendant, who was in habit of occupying land of weak persons and single women, tried to occupy the suit schedule property on 29.03.2015, which was resisted with the support of neighbors. According to plaintiff, once again on 04.04.2015 at 11.00 a.m, the original defendant went to the suit schedule property and threatened the plaintiff by abusing her in filthy language, for which, the plaintiff gave a report to the police on that day, but the police did not take any action.
According to plaintiff, she is in continuous possession over suit schedule property and that the original defendant has no right or title in any manner over suit property. Hence, the suit for permanent injunction.
6.Original defendant filed written statement by denying the plaint averments. He contended that he is absolute owner of the suit property having obtained the same from original owner P.Venkata Krishna Rao under a possessory agreement of sale dated 30.08.2000 and got possession on the same day. According to original defendant, his vendor
P.V.Krishna Rao had obtained assignment patta on 02.12.1995. Original defendant further contended that the plaintiff and her husband being nearby residents, made attempts to dispossess the defendant on 20.08.2007 and 21.08.2007 for which, the original defendant had filed a suit in O.S.No.507 of 2007 against the husband of plaintiff for the relief of
Page No.7 of 28 8
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
permanent injunction and obtained a decree on 19.12.2014. According to original defendant, during the pendency of the suit proceedings in
O.S.No.507/2007, he raised ACC roof house in the place of thatched hut
and at that point of time, the husband of plaintiff crated some documents in the name of his wife by colluding with municipal authorities, though the plaintiff has never been in possession over suit schedule property. Original defendant further contended that, in spite of having knowledge about decree in O.S.No.507/2007, the plaintiff filed this suit with wrong boundaries and got obtained interim injunction orders on 08.04.2015. The original defendant further contended that on 13.04.2015, the plaintiff and her husband highhandedly dispossessed the defendant from suit schedule property under the guise of interim injunction, for which the original defendant gave a police report, but in vain. According to original defendant, plaintiff herein has obtained interim injunction on the basis of a created document i.e., possession certificate, dated 23.06.2007 allegedly issued in favour of plaintiff. According to original defendant, the possession certificate, dated 23.06.2007 is not a valid one as the suit schedule property was previously assigned to one P.Venkata Krishna Rao on 02.12.1995. According to original defendant, as he was dispossessed from suit property on 13.04.2015 within 6 months, he filed suit for recovery of possession (O.S.No.187/2015) under Section 6 of Specific
Relief Act. According to original defendant; plaintiff filed the suit for wrongful gains by suppressing material facts. Hence, the original defendant prayed this court to dismiss the suit.
7.Having perused the pleadings and documents in the suits, the following issues have been framed by this court for trial:
Page No.8 of 28 9
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
Issues in O.S.No.187/2015:
(i). Whether the plaintiff is entitled for recovery of
possession of the plaint schedule property from the
defendants as prayed for?
(ii). To what relief?
Issues in O.S.No.54/2015:
(i). Whether the plaintiff is entitled for permanent injunction as prayed for?
(ii). To what relief?
8.The suit in O.S.No.187 of 2015 is filed subsequent to the suit in
O.S.No.54 of 2015 for same property. Hence, this court consolidated both
the suits for joint trial and accordingly, a joint trial has been conducted in
O.S.No.187 of 2015 as the relief therein is suit for recovery of possession.
9.Original plaintiff in O.S.No.187 of 2015 (original defendant in
O.S.No.54/2015) was died during suit proceedings and that his legal heirs
have been brought on record. In view of consolidation of both the suits in
O.S.No.187/2015, the parties hereafter are being referred to as they have
been arrayed in O.S.No.187/2015.
10.During joint trial in O.S.No.187/2015, P.Ws.1 to 3 are examined on behalf of plaintiff therein and Exs.A.1 to A.8 are marked. On the other hand, D.Ws.1 to 5 are examined on behalf of defendant No.2 and Exs.B.1 to B.7 are marked on her behalf. Defendant No.1 in O.S.No.187/2015 is remained exparte and he is not a party in the suit in O.S.No.54 of 2015, filed by his wife/defendant No.2.
Page No.9 of 28 10
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
11.Heard. Perused the record.
12.Having a perusal of rival pleadings, the suit schedule property in both suits measuring 111 sq. yards consists with house bearing Door
No.14/1968290 is one and the same, though the schedule boundaries of the suits are different. It is not in dispute that a Patta/Ex.A1 has been granted in the name of one P.Venkata Krishna Rao in the year 1995 relating suit schedule property. The suit in O.S.No.187 of 2015 filed by plaintiffs for recovery of possession on the ground that the deceased plaintiff was dispossessed by the defendants on 13.04.2015. Therefore, the deceased original plaintiff was admittedly not in possession over suit schedule property as on the date of filing of the suit in O.S.No.187/2015.
13. According to original plaintiff in O.S.No.187/2015 (original defendant in O.S.No.54 of 2015), he was in possession till 13.04.2015 from the year 2000 and he was dispossessed on 13.04.2015. On the the other hand, defendant No.2, who is plaintiff in O.S.No.54 of 2015, is claiming her right and possession over suit schedule property by averring that she obtained a possession certificate/Ex.B1 and she in continuous possession over the same. At this juncture, it is to be noted that the suit in O.S.No.54 of 2015 is filed on 08.04.2015 and the suit in O.S.No.187 of 2015 is filed on 15.06.2015. According to defendant No.2, she is in possession over suit schedule property since she got Ex.B1 and when the plaintiff in
O.S.No.185 of 2015 was trying to interfere with her possession, she filed
suit for permanent injunction in O.S.No.54 of 2015. Therefore, the main issue to be determined herein is that whether the deceased original
Page No.10 of 28 11
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
plaintiff namely Mirza Bakar Hussain was dispossessed from suit property within 6 months prior to filing of the suit in O.S.No.187/2015 as this suit has been filed under Section 6 of Specific Relief Act, in which mere proof of possession of plaintiff within 6 months prior to filing of the suit is sufficient. Title of the plaintiff over suit property is irrelevant for the suit filed under Section 6 of Specific Relief Act. With this backdrop, let us see the evidence of the parties in brief.
14.(a) Plaintiff No.4, a son of original plaintiff, was examined as P.W.1 and he filed chief examination affidavit by reiterating the plaint averments.
Exs.A.1 to A.8 are marked through P.W.1. Ex.A.1 is the house site patta issued in favour of Pothana Venkata Krishna Rao dated 02.12.1995 by the
MRO, Machilipatnam; Ex.A.2 is the possessory agreement of sale dated 30.08.2000 executed by Pothana Venkata Krishna Rao in favour of Mirza
Bakar Hussain; Ex.A.3 is the certified copy of judgment and decree dated 19.12.2014 in O.S.No.507/2007 on the file of I Additional Junior Civil
Judge’s Court, Machilipatnam; Ex.A.4 is the copy of the plaint in
O.S.No.54 of 2015; Ex.A.5 is the title transfer fee payment receipt, dated
24.03.2015 issued in the name of original plaintiff/Mirza Bakar Hussain;
Ex.A.6 is the proceedings of transfer of title of property and two house tax payment receipt; Ex.A.7 is the office copy of the notice, dated 14.03.2018 got issued by the plaintiff to the Tahsildar, Machilipatnam and, Ex.A.8 is postal acknowledgments.
(b) In cross examination P.W.1 deposed that his father purchased suit property from one P.Venkata Krishna Rao under an agreement of sale/Ex.A.2 and the vendor of his father P.Venkata Krishna Rao had obtained suit property under Ex.A.1/Patta dated 02.12.1995. P.W.1
Page No.11 of 28 12
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
further deposed that as per the recital of Ex.A.2/possessory agreement of sale, the suit schedule property was vacant land and that P.Venkata
Krishna Rao have not made any construction in suit property within 2 years after getting Ex.A.1/Patta as per the condition prescribed in
Ex.A.1/patta. P.W.1 further deposed that the decree in
O.S.No.507/2007/Ex.A3 does not contain a direction regarding mutation
of name of his father into municipal record. P.W.1 further deposed that he has not filed any document to show that his father/original plaintiff constructed a thatched house in suit premises the year 2011 and thereafter, his father constructed a tin sheet shed in the year 2013 replacing the thatched hut. P.W.1 admitted that summons in the suit in
O.S.No.54 of 2015 served to his father/original plaintiff in Jalalpet address
and they are having a own house in Jalalpet. P.W.1 further admitted that his family is residing at Jalalpet residency and as per ration card and
Aadhar card, the address particulars of original plaintiff and his family members is Jalalpet only. P.W.1 denied that his father/original plaintiff has not deposed evidence as a witness though he was not suffering from any kind of ailment. P.W.1 further stated that he cannot say the name particulars of neighbors of suit schedule property. P.W.1 further denied that he has got knowledge about the possession certificate dated 23.06.2007 issued in the name of defendant No.2. According to him, said documents is created one. P.W.1 further denied that they are no way relating to suit schedule property and the defendant No.2/Sakamuri
Nagendramma is in possession and enjoyment over suit schedule property.
15.P.Ws.2 and 3 are third parties namely Raavi Srinivasa Rao and
Md.Khaja respectively. P.Ws.2 and 3 filed similar chief examination
Page No.12 of 28 13
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
affidavits by stating inter alia that the original plaintiff purchased the suit schedule property in the year 2000 and he was in possession over suit property till April 2015, when the original plaintiff was dispossessed by the defendants. In cross examination, P.W.2 deposed that he was working under original plaintiff and according to P.W.2, original plaintiff had been residing at Jalalpet house since 30 years. P.W.2 is not aware about the suit property particulars. In his cross examination, P.W.3 also deposed that he is not aware about particulars of suit property and relief claimed.
16.(a) Defendant No.2, who contested the suit, is examined as D.W.1 by reiterating her written statement contents and Exs.B.1 to B.7 are marked on her behalf. Ex.B.1 is the residential house site certificate issued by the Tahsildar, Machilipatnam, dated 23.06.2007 in favour of Sakamuri
Nagendramma/Defendant No.2; Ex.B.2 is a bunch of property tax demand notices issued in the name of Sakamuri Srinivasa Rao/Defendant No.1 for the assessment No.1070034843; Ex.B.3 is a bunch of electricity bills demand notice and payment receipts; Ex.B.4 is the copy of police report submitted by Defendant No.2/Sakamuri Nagendramma to the SHO,
Chalakalapudi; Ex.B.5 is the water tax demand notices, issued in the name of S.Srinivasa Rao; Ex.B.6 is the special notice of property tax new assessment number issued in the name of Sakamuri Srinivasa Rao; Ex.B.7 is the proceedings of transfer of title of property dated 09.03.2015 in the name of Defendant No.2/Sakamuri Nagendhramma.
(b) In cross examination, D.W.1 deposed that the plaintiff had filed a suit in O.S.No.507/2007 against defendant No.1. D.W.1 further deposed that as on the date of getting possession certificate in her favour i.e., 23.06.2007, she is living with her husband. D.W.1 further deposed that in
Page No.13 of 28 14
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
possession certificate/Ex.B.1, survey number of property therein is mentioned as R.S.No.186. D.W.1 further deposed that she has not filed any proceedings regarding cancellation of patta/Ex.A.1 issued in favour of
P.Venkata Krishna Rao. D.W.1 denied that she has intentionally suppressed about particulars of suit in O.S.No.507/2007. D.W.1 further denied that her husband and she have received summons jointly as they are residing together. D.W.1 further denied that the plaintiff was in continuous possession and enjoyment over suit property and that he obtained decree in O.S. No.507/2007 against defenadnt No.1 for permanent injunction. and D.W.1 further denied that the plaintiff was dispossessed by them under the guise of interim injunction in O.S.No.54 of 2015.
16.D.W.2 and D.W.5 are third parties to the suit, who have allegedly obtained possession certificates like defendant No.2 in the suit schedule locality. D.Ws.2 and 5 deposed, in chief examination affidavit, that the defendant No.2 obtained possession certificate when they got the same and ever since defendant No.2 has been residing in suit schedule house by paying municipal tax and electricity charges and that the original plaintiff/
Mirza Bakar Hussain interfered with the possession of the plaintiffs on two instances and on that the defendant No.2 filed suit in
O.S.No.54/2015. In cross examination, D.W.2 deposed that she was not
aware in whose name the suit schedule property was allotted prior to 2007. D.W.2 further deposed that he did not mention in his chief examination affidavit about the door number of house in which he is residing. D.W.5 deposed, in her cross examination, inter alia that defendants are living separately. D.W.5 further deposed that she did not
Page No.14 of 28 15
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
file documents to show that she was in possession over the property situated near to the suit schedule property.
17.D.W.3 is also a third party and she filed her chief examination affidavit by deposing inter alia that she had been residing since six years in suit schedule area and got to know that the plaintiff had filed suit against defendant No.2 with false allegations. D.W.3 further deposed that the defendant No.2 got separated from her husband and alone is in possession over suit schedule property by paying municipal tax and electricity charges and that the original plaintiff attempted twice for interference of possession of defendant No.2 in suit schedule property and that the defendant No.2 filed suit in O.S.No.54 of 2015. In cross examination, D.W.3 deposed that she did not know the original plaintiff/Mirza Bakar Hussain personally. D.W.3 further deposed that she did not file documents to show that she is residing near to suit schedule property and she is also not aware about the person, to whom patta granted earlier. According to D.W.3, she got to know the suit facts from defendant No.2.
18.Tahsildar, Machilipatnam is examined as D.W.4 and he deposed, in chief examination, that the original register regarding Ex.B.1/possession certificate is not available with his office. He further deposed that Ex.B.1 register is not traced out due to computerization of records. According to
D.W.4, possession certificate will be issued for recognition of possession of beneficiary for a period of 12 years. He further deposed that on his enquiry, he came to know that the defendant No.2 is in possession over suit schedule property. In cross examination, D.W.4 deposed that he has
Page No.15 of 28 16
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
no authorization to say that the defendants are in possession over suit property. He further deposed that there is no allotment of land under
Ex.B.1 as Ex.B.1 is only a possession certificate. D.W.4 further deposed that the possession certificate may be issued only on production of electricity bills, water tax or the government assessment. But, D.W.4 denied that Ex.B.1 was issued by his office without any supporting documents.
19.After completion of evidence, I heard the arguments of either parties.
(a) Counsel for plaintiffs (in O.S.No.187/2015) argued that the original deceased plaintiff purchased the suit schedule property under a possessory agreement of sale dated 30.08.2000 and since then he was in possession over suit property till 13.04.2015. He further submitted that the defendants highhandedly dispossessed the original plaintiff on 13.04.2015 by taking advantage of interim injunction orders in the suit in
O.S.No.54 of 2015. According to counsel for plaintiffs, the defendants have
never been in possession over suit schedule property and when the defendant No.1 herein was attempted to interfere with the possession of plaintiff in the year 2007, a suit in O.S.No.507/2007 was filed by him against defendant No.1 for the relief of permanent injunction and obtained a decree in his favour and in spite of that the defendants herein filed the suit in O.S.No.54/2015 with a created possession certificate/Ex.B.1 and obtained interim injunction orders from the Court on 08.04.2015 and thereafter on 13.04.2015, original plaintiff was dispossessed by defendants. Counsel for plaintiffs would further submit that the defendant
No.1 intentionally failed to appear before the court and that an adverse inference is drawn against the defendants. Therefore, according to counsel
Page No.16 of 28 17
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
for plaintiffs i.e., suit in O.S.No.187/2015 was filed under Section 6 of
Specific Relief Act for recovery of possession, is liable to be decreed.
(b) Learned counsel for plaintiff further argued that the documents filed i.e., Ex.A.1 to A.3 have alredy admitted in the suit in
O.S.No.507/2007, filed against the defendant No.1 herein and that the
defendants cannot dispute the validity of those documents. To support his contention, he filed following Judgments:
(i) Veeramachaneni Subba Rao (died and others v. Indian
Bank, Governor pet,Vijayawada, rep. by the General Manager,1997 (4)ALT, Page 112;
(ii). T.A.Khaja Hussain v. C.Irshad Basha Nizami, 2010(1)
ALT, page 225;
(iii). Isra Fatima v. Bismillah Begum and another, 2006 (4)
ALT, page 2016.
(c)The learned counsel for plaintiffs further argued that unregistered possessory agreement of sale/Ex.A.2 can be considered for collateral purpose to prove the possession. To support this contention, he cited following judgments:
i). Avula Sathaiah v. Avula Lingaiah and others, 2001(3) ALT, page 221; ii). Rayadurgam Pedda Reddeppa (died) and others v.
Rayadurgam Narasimha Reddy (died) and others, 2006(6)
ALT 292;
(iii). Anga Bhuloka Rao v. Smt.Norrjahan Begum, 2011 (2) ALT 373;
(iv). G.Udayakiran Reddy v. G.Ramakrishna Reddy and others, 2011 (3) ALT 600;
(v). K.R.Subrahmanyam and another v. A.Rajareddy, 2002 (5) page 404
(vi). A.Kishore @ Kantha Rao v. G.Srinivasulu, 2004(3) ALT 817(DB).
Page No.17 of 28 18
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
(d) Regarding maintainability of suit under Section 6 of Specific
Relief Act, the learned counsel for original plaintiff filed following judgments:
(i). Mogilipuvvu Annapurnaiah v. Malampati Narasimha Rao and another,
AIR 1982 AP 253 (DB);
(ii). H.B.L Air craft Batteries Ltd., v. Commissioner of Central Excise,
Hyderabad, 2004(5) SCC 664;
(iii). Kamarapu Veera Lakshmi and others v. Vemula Krishna Murthy, 1999(2) ALT 276;
(iv). Mohd.Mehtab Khan and others v. Khushnuma Ibrahim and others, 2013 AIR SC, 1099;
(v). Katta Penchalaswamy and others v. Mopuru Veera Raghava Reddy, 2015 (1) ALT 667.
20.On the other hand, the counsel for defendants argued that the defendant No.2 is in exclusive possession over suit property since she got
Ex.B.1/patta on 26.03.2007 and the plaintiffs have never been in possession over suit schedule property at any point of time. Therefore, according to counsel for defendants, there is no question of dispossession of original plaintiff on 13.04.2015. The learned counsel for defendants further argued that the original plaintiff cannot derive any title under a possessory agreement of sale and the judgment obtained against defendant No.1 in O.S.No.507/2007 is not binding on the defendant No.2 as she is not a party to the suit proceedings in O.S.No.507/2007. He further argued that the defendant No.2 is in settled possession of suit property and that the defendant No.2 is entitled for permanent injunction.
To support his contentions, the learned counsel for defendant No.2 cited following judgments:
(i). Kaneez Fathima and another v. Samru Sultana and others 2008(3) ALT 538;
Page No.18 of 28 19
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
(ii). Ramavath Hasala Naik v. Sabahavath Gomli Bai, 2011(2) ALT 690;
(iii). Manjit Singh and ors. v. Shanti Devi and another,2010(15) SCC 578;
(iv). Rame Gowda (d) bhy L.rs v. M.Varadappa Naidu (D) by L.rs and another, 2003(8) SCC 928.
(v). Seera Simhachalam v. Pedireala Simhachalam, 2000(2) ALT 292;
(vi). Chellingi Narayanamurthy v. Chillingi Satyanarayana and others, AIR 20008AP 25.
(vii). Alla Seshukumar and another v. Alla Radha Krishna 2008(1)
ALT 430
Issue No.1 in O.S.No.187/2015:
21.As stated above, the suit O.S.No.187/2015 is filed under Section 6 of
Specific Relief Act, in which plaintiff has to prove that he was in possession over suit property within 6 months prior to filing the suit and that he was dispossessed by the defendants. The scope of the suit filed under Section 6 of Specific Relief Act is very limited, which shall be decided on the basis of possession within 6 months prior to filing of the suit only. Title of the plaintiff is not relevant to the suits filed under
Section 6 of Specific Relief Act. The suit on hand i.e., O.S.No.187/2015 is filed by original plaintiff on 15.06.2015 by alleging that he was in possession over suit schedule property from the date of execution of agreement of sale i.e., 30.08.2000 to till 13.04.2015. According to him, he was dispossessed by the defendants on 13.04.2015, within 6 months prior to filing of the suit. On the other hand, the defendant No.2 is contending that the original plaintiff/Mirza Bakar Hussain in O.S.No.187/2015 had never been in possession over suit property and according to defendant
Page No.19 of 28 20
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
No.2, she is in continues possession over suit property since 23.06.2007 and that she filed the suit in O.S.No.54/2015 for the relief of permanent injunction. Parties herein are described as they have been arrayed in the suit in O.S.No.187/2015.
22. In order to prove the possession of original plaintiff/Mirza Bakar
Hussain till his alleged dispossession, his son/plaintiff No.4 is examined as P.W.1 and deposed evidence on behalf of original plaintiff. Exs.A.1 to
A.8 documents are marked through him. Ex.A.1/patta granted in favour of
P.Venkata Krishna Rao, Ex.A.2 is the unregistered agreement of sale under which the plaintiff purchased suit schedule property; Ex.A.3 is the copy of decree in O.S.No.507/2007. According to counsel for plaintiffs, Exs.A.1 to
A.3 are valid documents as the validity of Exs.A.1 and A.2 was already tested in O.S.No.507/2007, the suit which was filed by the original plaintiff against defendant No.1 herein and on the basis of Exs.A.1 and
A.2, original plaintiff obtained a decree for permanent injunction in
O.S.No.507/2007.
23. Ex.A.1 is the undisputed document and Ex.A.2 is unregistered possessory agreement of sale under which the original plaintiff is allegedly entered into suit schedule property. According to counsel for plaintiffs,
Ex.A.2 is admissible for collateral purpose to prove his possession. To support this contention, he filed several judgments of higher Courts. In the suit filed by the plaintiffs under Section 6 of Specific Relief Act, title is irrelevant. But the original plaintiff is claiming his possession over suit property through Ex.B.2/unregistered agreement of sale, within 6 months prior to filing of the suit, on the basis of which the suit decides. Therefore,
Page No.20 of 28 21
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
Ex.B.2 being unregistered document, cannot be considered for primary purpose. Accordingly, the judgments cited by original plaintiff are not applicable to the case on hand. Ex.A.3 is the decree in O.S.No.507/2007, which had been filed by the original plaintiff against the defendant No.1 is a valid decree, though the defendant therein remained exparte. But, the decree in O.S.No.507/2007 is only binding on the parties therein only;
Ex.A.4 is the copy of plaint in O.S.No.54/2015, which is also an undisputed document; Exs.A.5 and A.6 are relating to mutation proceedings in the name of original plaintiff with regard to suit property.
Having a perusal of Exs.A.5 and A.6, mutation of suit property in the name of original plaintiff/Mirza Bakar Hussain has been done on 24.03.2015 from the name of defendant No.2 on the basis of the decree in
O.S.No.507/2007 though defendant No.2 is not a party to the suit
proceedings in O.S.No.507/2007. Therefore, the Exs.A.5 and A.6 documents clearly show that name of the defendant No.2 was in municipal records till 24.03.2015.
24.According to plaintiffs, original plaintiff was in possession over suit property from the date of execution of Ex.A.2 to till 14.03.2015. But, no document is filed by plaintiffs to prove their possession over suit property during that period except Ex.A.2/possessory agreement of sale, which cannot be considered for primary purpose. Ex.A.3 is not binding on the defendant No.2. Exs.A.7 and A.8 are notice and acknowledgment dated 14.03.2018 which are no way helpfulfor the determining the suit as the possession of the plaintiff within 6 months prior to the date of filing of the suit is the only relevant consideration.
Page No.21 of 28 22
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
25.Coming to oral evidence of P.W.1, who is testified on behalf of original plaintiff, has deposed, in cross examination, that they are residing at Jalalpet since several years and the original plaintiff received summons in O.S.No.54 of 2015 in Jalalpet address. Evidence of P.Ws.2 and 3 are no way helpful to the case of original plaintiff as they deposed that they did not know anything about the particulars of the suit.
26.On the other hand, defendant No.2 is examined as D.W.1 and filed
Exs.B.1 to B.7 documents. Ex.B.1 is the possession certificate, dated 23.06.2007; Exs.B.2, B.3 and B.5 are water tax receipts, property tax and electricity bills stands in the name of defendant No.1 for various dates.
According to defendant No.2, after filing earlier suit in O.S.No.507/2007 by original plaintiff against defendant No.1, defendant No.2 got separated from her husband and living separately in suit schedule property and that she was paying property tax and electricity bills in the name of her husband. Ex.B.4 is the copy of report given to the police by defendant No.2 by alleging that the original plaintiff made two attempts on 23.09.2015 and 04.04.2015 and tried to interfere with the possession of defendant No.2 over suit property. Ex B.7 are relating to mutation of name of defendant
No.2 in municipal records dated 09.03.2015 pertaining to suit property, according to which the name of defendant No.2 has been mutated on 09.03.2015 from the name of her husband. Exs.B.2, B3, B5 and B.6 show that the defendant No.1, who is the husband defendant No.2 was in possession over suit property, and under Ex B.7, the name of defendant
No.2 was entered into municipal records in the place of her husband on the basis of possession certificate/Ex.B.1. Moreover, the evidence of
D.Ws.2 to 5 are also supported the possession of defendant No.2 over suit
Page No.22 of 28 23
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
property during the period of possession claimed by original plaintiff.
Therefore, this court is of opinion that the plaintiffs failed to prove that the original plaintiff was in possession over suit property within 6 months prior to filing of the suit. Accordingly, the judgments cited by the counsel for original plaintiff relating to Section 6 of Specific Relief Act, are not applicable to the present suits.
27. Other contention of the learned counsel for plaintiff is that the defendant No.1 has intentionally remained exparte and that an adverse inference can be drawn against the defendants. Though the defendant
No.1 remained exparte in this suit, according to defendant No.2, she got separated from her husband/defendant No.1 and she is in exclusive possession over suit property and as such nonappearance of defendant
No.1 is cannot be a ground to take adverse inference against defendant
No.2 who is claiming her exclusive possession over suit property.
Therefore, the contention of the learned counsel for original plaintiff relating to adverse inference is unsustainable and the judgments cited thereon are not applicable to the facts on hand. Moreover, the original plaintiff was alive till about to completion of evidence on his behalf and in spite of that, he did not appear before the court as witness. P.W.1, a son of original plaintiff, is added as plaintiff as legal heir of original plaintiff. But
P.W.1 has deposed his evidence on behalf of his father during life time of his father. In the circumstances, this court is of the opinion that the plaintiffs have failed to prove the possession of the original plaintiff over suit property within 6 months prior to filing of the suit and that original plaintiff was dispossessed by defendants from the suit schedule property within such 6 months period and that the plaintiffs are not entitled for
Page No.23 of 28 24
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
recovery of possession under Section 6 of Specific Relief Act. Accordingly, this issue is answered against the plaintiffs in O.S.No.187/2015.
Issue No.1 in O.S.No.54/2015:
28.Admittedly, as on the date of filing of main suit in O.S.No.187/2015 i.e., on 15.06.2015, the defendant No.2 is in possession over suit property.
According to original plaintiff in O.S.No.187/2015, defendants have highhandedly entered into the possession of suit property on 13.04.2015 under the guise of interim injunction orders obtained in the suit filed by defendant No.2 in O.S.No.54/2015. The suit filed by the defendant No.2 in
O.S.No.54/2015 is filed on 07.04.2015 for the relief of permanent
injunction and that the plaintiff therein (defendant No.2 in main suit) namely Sakamuri Nagendramma has to prove her possession as on the date of filing of the suit i.e., 07.04.2015.
29.As discussed in aforesaid issue, defendant No.2 filed Exs.B.1 to B.7 documents to prove her possession over suit schedule property as on the date of filing the suit. Ex.B.1 is the possession certificate dated 23.06.2007. But, Ex.B.1 does not contain the door number and Exs.B.2 to
B.5 are tax and electricity receipts relating to suit property issued in the name of defendant No.1 pertaining to various dates prior to filing of the suit. According to defendant No.2, she is in exclusive possession over suit property after getting separated from her husband and she is paying tax to the relevant authorities in the name of her husband. B.7 is crucial document which is mutation proceedings dated 09.03.2015 under which the name of defendant No.2 mutated from the name of her husband.
Page No.24 of 28 25
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
30.Though there is no other document to show the possession of defendant No.2, except Exs.B.1and B.7; Ex.B.2, B.4, B.5 and B.6 clearly show that the defendant No.1 was residing in suit schedule house door number. Ex.B.7 mutation proceedings have been done even prior to the suit filed by the defendant No.2. After taking into consideration of all documents along with oral evidence of D.Ws.2 to 5, are supporting the possession of defendant No.2 over suit property since several years, including as on the date of filing of the suit in O.S.No.54 of 2015.
Moreover, in view of findings arrived in previous issue, original plaintiff failed to prove his possession over suit property prior to 14.03.2015.
Therefore, it can be considered that the defendant No.2 is in possession over suit schedule property not only from 14.03.2015, but even prior to such date as the name of defendant No.2 mutated on 09.03.2015 as document/Ex.A6 clearly show that name of the defendant No.2 was in municipal records till 24.03.2015 and on that day, the name of original plaintiff/Mirza Bakar Hussain, entered into municipal records in the place of defendant No.2/Sakamuri Nagendramma. Ex.B.4/copy of supports the allegation of interference by plaintiff/Mirza Bakar Hussain over possession of defendandant No.2/nagendramma. Moreover, plaintiffs have not created any kind of cloud over title of the suit property through Exs.A.2 and A.3.
31.Hon’ble Apex Court in Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs., and others 2008 (4) SCC 594, held that “where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a
Page No.25 of 28 26
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
person in wrongful possession is not entitled to an injunction against the rightful owner”.
32.By applying the principles relating to the permanent injunction, laid down by Hon’ble Apex Court, to the facts of the case on hand, the defendant No.2 herein has proved her possession over suit property and that her possession has to be protected by way of permanent injunction.
Accordingly, this issue is answered in favour of defendant No.2 namely
Sakamuri Nagendramma.
Issue No.2 in O.S.No.187/2015 and Issue No.2 in O.S.No.54/2015:
33.In view of findings arrived in aforesaid issues, the suit in
O.S.No.187/2015 is liable to be dismissed. Whereas, the suit in
O.S.No.54/2015 is decreed. However, in view of facts and circumstances,
both parties are directed to bear own costs. Accordingly, these issue are answered.
34.IN THE RESULT, the suit in O.S.No.187 of 2015 is DISMISSED and, the suit in O.S.No.54 of 2015 is DECREED by granting permanent injunction in favour of plaintiff therein namely Sakamuri Nagendramma by restraining the defendants (plaintiffs in O.S.No.187/2015) and their men from interfering with the possession and enjoyment of plaintiff /Sakamuri
Nagendramma (defendant No.2 in O.S.No.187/2015) over suit schedule property. Both parties shall bear their own costs.
Dictated to Personal Assistant, transcribed by him, corrected and
pronounced by me in the open Court, this the 19 th day of December, 2022.
Principal Junior Civil Judge,
Machilipatnam.
Page No.26 of 28 27
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF FOR DEFENDANTS
P.W.1:Mirza Abbas. D.W.1:S.Nagendramma.
P.W.2:Raavi Srinivasa Rao. D.W.2:Putti Nagaraju.
P.W.3:Md.Khaja. D.W.3:Kasula Anjali.
D.W.4:D.Sunil Kumar.
D.W.5:N.Nageswaramma.
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A.1:House site patta issued in favour of Pothana Venkata Krishna Rao dated 02.12.1995 by the MRO, Machilipatnam.
Ex.A.2:Possession agreement of sale dated 30.08.2000 executed by Pothana Venkata Krishna Rao in favour of Mirza Bakar Hussain.
Ex.A.3:Certified copy of judgment and decree dated 19.12.2014 in
O.S.No.507/2007 on the file of I Additional Junior Civil
Judge’s Court, Machilipatnam.
Ex.A.4:Served copy of the plaint in O.S.No.54 of 2015.
Ex.A.5:Title transfer fee payment receipt, dated 24.03.2015 issued in the name of Mirza Bakar Hussain;
Ex.A.6:Proceedings of transfer of title of property and two house tax payment receipt;
Ex.A.7:Office copy of the notice, dated 14.03.2018 got issued by the plaintiff to the Tahsildar, Machilipatnam;
Ex.A.8:Two postal acknowledgments.
FOR DEFENDANTS :
Ex.B.1:Residential house site certificate issued by the Tahsildar, Machilipatnam, dated 23.06.2007 in favour of Sakamuri Nagendramma.
Ex.B.2:Bunch of Property tax demand notices issued in the name of Sakamuri Srinivasa Rao for the assessment No.1070034843.
Page No.27 of 28 28
O.S.No.187/2015 & O.S.No.54/2015, Prl. Junior Civil Judge's Court,
dt.19.12.2022 Machilipatnam.
Ex.B.3:Bunch of electricity bills demand notice and payment receipts.
Ex.B.4:Copy of police report submitted by Sakamuri Nagendramma to the SHO, Chilakalapudi.
Ex.B.5:Water tax demand notices (5 in number) issued in the name of S.Srinivasa Rao.
Ex.B.6:Special Notice of property tax new assessment number or amendment, for the assessment No.1070034843 issued in the name of Sakamuri Srinivasa Rao.
Ex.B.7:Proceedings of transfer of title of property dated 09.03.2015 issued in the name of Sakamuri Nagendhramma.
Principal Junior Civil Judge,
Machilipatnam.
Page No.28 of 28