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IN THE COURT OF THE SENIOR CIVIL JUDGE AT SIRCILLA.
Friday, this the 26th day of July, 2019.
PRESENT: SRI M.SRINIVAS B.A.L.,LL.M.,
SENIOR CIVIL JUDGE,
SIRCILLA.
O.S.NO.54/2013.
Between:
Kankanala Rajender, S/o: Late Prasad, Age: 35 years, Occ: Business, R/o: Vemulawada village and Mandal of Karimnagar District. …Plaintiff.
And
1.Kankanala Ravinder, S/o: Prasad, Age: 39 years, Occ: Business, R/o: H.No.1248/1, Vemulawada village and Mandal of Karimnagar District.
2.Kankanala Vijay, S/o: Prasad, Age; 37 years, Occ: Business, R/o; H.No.1144, Opp: Coconut shop, Vemulawada village and mandal of Karimnagar District.
3.Kankanala Sateesh, S/o: Prasad, Age: 35 years,Occ: Business, R/o: H.No.17106, Rama Mandir Road, Vemulawada village and mandal of Karimnagar District.
4.Kankanala Suresh, S/o: Prasad, Age: 30 years, Occ: Business, R/o: H.No.17106, Rama Mandir Road, Vemulawada village and mandal.
5.Kankanala Rakesh, S/o: Prasad, Age: 24 years, Occ: Business, C/o: Mahendra show room, Kothirampur, Karimnagar District.
6.Kankanala Sai, S/o: Prasad, Age: 22 years, Occ: Business, R/o; H.No.17106, Rama Mandir Road, Vemulawada village and mandal of Karimnagar District.
7.Kankanala Kishan, S/o: Rajalal, age; 58 years, Occ: Business, R/o: H.No.17107, Rama Mandir Road, Vemulawada village and mandal of Karimnagar District.
8.Kankanala Srinivas, S/o: Rajalal, Age; 55 years, Occ; Business, R/o: H.No.17105, Rama Mandir Road, Vemulawada village and mandal of Karimnagar District. …Defendants.
This suit is coming before me on 0372019 for final hearing in the presence of Sri K.Ganesh and G.Anjaiah, Advocates for the plaintiff and of Sri Kodam Suresh, Advocate for the defendant Nos.1 to 8, upon perusing the material papers on record, having been heard and stood over for consideration till this day, the Court delivered the following: :: J U D G M E N T ::
1)This is a suit filed by the sole plaintiff against the defendant Nos.1 to 8 for declaration of title and recovery of vacant possession of the house bearing 2
H.No.1239/1 (old), corresponding its new H.No.17106 admeasruing 132.50
Sq.yards situated at Gandhinagar, Rammandir road, Vemulawada town and mandal (hereinafter in brief, for the convenient sake, be referred as suit schedule house) and also to award costs.
2) The brief averments of plaint are that, the plaintiff is the absolute owner of the suit house and the defendant Nos.1 to 6 are none other than his natural brothers. The defendant Nos.7 and 8 are paternal uncles of the plaintiff and the defendant Nos.1 to 6. The plaintiff acquired the suit schedule property apart from the other property from Smt.K.Chandra Baga through a registered will deed vide document No.5/1991 dt:26121991 and she bequeathed the
H.Nos.1239 and 1239/1 to the plaintiff and defendant Nos.7 and 8 equally out of love and affection and services rendered to her. After her death, the plaintiff and defendant Nos.7 and 8 orally partitioned the houses which were bequeathed under the will deed into equal shares and took over the possession of their respective shares and got mutated their names in the grampanchayath records and new house numbers were allotted vide H.Nos.17106 belongs to plaintiff, H.No.17107 belongs to defendant No.7 and 17105 belongs to the defendant No.8 and were in possession of their respective houses. The original will deed is in the custody of defendant No.8 as he being the paternal uncle of the plaintiff.
It is further stated that the parents of plaintiff and defendant Nos.1 to 6 who are unmarried at that time, lived together in the suit schedule house.
After the marriage of the plaintiff in the year 1996, the plaintiff and his wife resided in the suit schedule house for some period. On the advise of his parents, to facilitate the enlarged family, the plaintiff took rent of another small house in the nearby locality and used to visit the parents and defendants Nos.1 to 6 frequently. The plaintiff, due to his avocation, went to Dubai during the year 2009 and the came down to India (Vemulawada) twice between these 3 periods. Even though plaintiff went to Dubai, but his wife used to visit the parents of plaintiff who were ailing with severe old age ailments and thus the plaintiff allowed the defendant Nos.1 to 6 to reside in the suit schedule house on affectionate grounds, so that the plaintiff's wife and defendant Nos.1 to 6 looked after the aged parents. The father and mother of plaintiff resided in the suit schedule house till their death in August, 2012 and September, 2012 respectively. After the death of their father and mother, the plaintiff permitted the defendant Nos.1 to 6 who are his natural brothers, to reside in the schedule house till the completion of all the funeral ceremonies. The defendant
Nos.1 to 6, however sought oral permission from the plaintiff to stay in the suit schedule property for few months until they secure alternate premises and the plaintiff gave his consent to that extent. As the suit schedule house was in dilapidated condition, the plaintiff was in preparation of making arrangements to remove the structures in order to construct a new building.
The plaintiff made several repeated requests in November, 2012 with all the defendant Nos.1 to 6, to vacate the suit schedule house to enable him to demolish the old structure and construct a new building over the suit schedule house. But the defendant Nos.1 to 6 postponed to vacate the suit schedule property on one pretext or other. On 3012012, the plaintiff got issued legal notices to the defendant Nos.1 to 6 to vacate the suit schedule house. The defendant Nos.1 to 6 gave an evasive reply and hatched a plan to usurp the schedule property by taking advantage of their possession over it. The plaintiff came to know in the month of April 2013 that, the defendant Nos.1 to 6 are trying to pose as owners of the schedule property in the society and trying to alienate it to the third parties by entering into an agreement of sale. The defendant Nos.1 to 6 have no right or interest in any manner over the suit schedule property and taking advantage of love and affection over the defendant Nos.1 to 6, they are not vacating the suit schedule house. At the 4 end, the plaintiff prayed the court to pass a decree declaring him as owner of the suit schedule house and for recovery of possession, directing the defendant
Nos.1 to 6 to vacate the said house and to deliver the possession to him and also to award costs.
3) The defendant Nos.1 to 8 filed their common written statement denying the allegations made in the plaint and interalia submitted that, one Kankanala
Chandrabaga was owner and possessor of shops and house bearing door No.
17106 (new), 1239 (old) which were acquired through her husband.
K.Chandrabaga had no issues, so she adopted the father of the plaintiff namely
Kankanala Prasad, Kishan and Srinivas as her sons. During her life time, after death of her husband, she executed a registered will deed vide document No.5 of 1991 dt: 26121991 in favour of K.Kishan, K.Srinivas, K.Srinias (defendant
Nos.7 and 8 herein) and eldest son of K.Prasad i.e., plaintiff herein, why because the father of plaintiff namely Prasad, may mismanage or misuse the said property for his bad habits. Therefore, to safe guard the entire family of
K.Prasad and as per the advise of defendant Nos.7 and 8, the name of plaintiff was mentioned in the will deed as cosharer, instead of K.Prasad along with the defendant Nos.7 and 8 as he is the eldest son to K.Prasad out of seven sons.
The defendant Nos.7 and 8 are the witnesses for the said fact. Accordingly, the entire joint family of K.Prasad along with his wife and defendant Nos.1 to 6 resided in the said house till their death, thereafter defendant Nos.1 to 6 have been jointly residing in the schedule house till today, except the plaintiff and his family. The plaintiff and his family never resided in the schedule house after his marriage. There is no record to show that the plaintiff and his family resided in the schedule house since 1261996, when the said Chandrabaga died till the date. The defendant Nos.1 to 6 have been residing in the suit schedule house by paying house taxes. All the documents showing that the defendant Nos.1 to 6 and their parents have been in possession in the suit 5 schedule house since more than 40 years. The defendants perfected their title by way of adverse possession to the knowledge of all the locality people, including the plaintiff and all his family members also. Therefore, the plaintiff has no right, claim or interest over the schedule house since he was out of possession since more than 12 years. So the suit of plaintiff is not maintainable as time barred as per Article 64 of the Limitation Act. The plaintiff was never in possession in the schedule house since 1261996 to till the date. The defendant Nos.7 and 8 are junior paternal uncles of plaintiff and defendant Nos.1 to 6, but they are no way concerned with the schedule house and no allegation or claim against the defendant Nos.7 and 8, hence the suit is bad for misjoinder of parties. At the end, the defendants prayed the court to dismiss the suit of plaintiff with costs.
4) Subsequently the plaintiff filed a rejoinder contending that the said Smt
Chandrabhaga bequeathed the suit schedule property to the plaintiff, defendant No.7 and 8 out of love and affection and for the services rendered to her with her free will and consent and in good state of mind. The allegations that the defendants, to safeguard the entire family of the father of the plaintiff and as per the advise of the defendant Nos.7 and 8, the name of the plaintiff is incorporated in the will deed as cosharer, instead of the father of plaintiff, as the plaintiff being the eldest son to K.Prasad, out of his seven sons along with defendant Nos.7 and 8 etc., are incorrect and bundle of lies are made for the purpose of the suit. There is no iota of truth, hence the defendants are put to strict proof of the same. The names of plaintiff and defendant No.s7 and 8 are recorded in the grampanchayath records as per the registered will deed. The possession of the defendant Nos.1 to 6 is permissive possession and as such, the question of claiming adverse possession by the defendant Nos.1 to 6 does not arise. The fact of permissive possession known to all the locality people and all the relatives of the parties. As such, the defendant Nos.1 to 6 never made 6 any efforts at any point of time, to change the name in the grampanchayath records. The suit of the plaintiff is within the limitation from the date of demand of eviction of the defendant Nos.1 to 6, from the suit schedule house.
The registered will deed itself shows that the plaintiff alone is having title and ownership over the suit schedule property. The defendant Nos.1 to 6 at any point of time never raised any objection with their little finger with regard to the registered will deed, evenafter the death of their father and mother. The defendant Nos.1 to 6 took false pleas with the collusion of defendant Nos.7 and 8.
5) Basing on the pleadings of both parties and on hearing the learned counsels appearing for both sides, the following issues were settled for trial: 1).Whether the late K.Chandra Bagha bequeathed H.Nos.1239 and 1239/1 in favour of the plaintiff, defendant Nos.7 and 8 equally?
2).Whether the plaintiff, defendant Nos.7 and 8 after the death of Chandrabaga, partitioned the said house properties among them?
3).Whether the plaintiff is entitled to be declared owner of the suit property? 4).Whether the plaintiff is entitled to recover possession of the suit property from defendant Nos.1 to 6?
5).Whether the defendant Nos.1 to 6 perfected title to the suit property by adverse possession?
6).To what relief?
6) During the course of trial, PWs.1 to 4 were examined out of which the chief examination of PW.2 was eschewed since he did not turn up for cross examination. Exs.A1 to A15 were marked on behalf of the plaintiff. In rebuttal, the DWs.1 and 2 were examined and Exs.B1 to B21 were marked on behalf of the defendants.
7) Heard arguments by the learned counsels appearing for both parties and perused the entire material available on record.
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8) The testimonies of both sides witnesses are very much available on record in the shape of depositions and there is no need to reproduce the same in this judgment, to avoid repetition. However, the appreciation of evidence of such witnesses shall be dealt with at relevant times while answering the issues.
ISSUE Nos.1 and 2 :
9. Since the issue Nos.1 and 2 are interlinked with each other, it is just and proper to answer these two issues simultaneously. Before dwelling into the actual issues, it is just and proper to discuss about the right of late K.Chandra
Bagha to execute a will deed under Ex.A1 over the house Nos.1239 and 1239/1, bequeathing the said houses in favour of plaintiff, defendant Nos.7 and 8. Generally a person executes a will deed bequeathing his or her properties in favour of either relatives or close persons, but not to the third parties. The plaintiff specifically mentioned in his plaint averments in para
No.4 that, one K.Chandra Bagha executed a registered will deed vide document
No.5/1991 dt:26121991 in favour of plaintiff, defendant Nos.7 and 8, out of love and affection and services render to her. There is no whisper in the entire plaint averemnts as to the relationship in between the executant of Ex.A1 namely K.Chandra Bhaga, plaintiff, defendant Nos.7 and 8. However, during the evidence, that too during the cross examination by the defendants only, the
PW.1 revealed his relationship that the executant of will deed namely
K.Chandra Bhaga as his paternal grand mother and that since she was issue less, she brought up the father of plaintiff namely Prasad, defendant Nos7 and 8 as her sons. So it is crystal clear from the plaint averments that there is no mention of relationship between the plaintiff, defendants and the said
Chandrabhaga and simply averred in the plaint averments, without mentioning the relationship that, out of love and affection and services rendered to her only, she executed a will deed in favour of plaintiff, defendant Nos.7 and 8.
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10. For bequeathing any properties to others through a will deed by a person, first of all the executant of the will deed shall have the right or title over the said properties, otherwise he/she cannot bequeath the properties to others.
Nowhere in the plaint pleadings, the plaintiff could able to disclose that the suit schedule property and the another property are the self acquired properties of the executant namely K.Chandra Bhaga and as to how she secured those properties. However, after filing the written statement by the defendants, the plaintiff filed rejoinder admitting that the plaint schedule property and another house property are the self acquired properties of Chandrabagha. It is stated that the house Nos.1239 and 1239/1 upon which the will deed was executed by Chandrabaga, originally belong to her husband namely Rajalal and the said properties were recorded on his name in the Grampanchayath records and subsequent to his death, the said Chandrabagha secured those properties.
11. The PW.1 in his cross examination at page No.14 says that, the suit schedule house, shop and other properties mentioned in the will deed are the self acquired properties of Chandrabaga. Per contra, it is averred in the plaint that the said Chandra Bagha secured the said properties after demise of her husband namely Rajalal. It is admitted fact that, the said Rajalal died leaving behind his wife namely Chandrabagha, three adopted or broughtup sons namely Prasad, defendant Nos.7 and 8 as his legalheirs. It is also an admitted fact that the said Rajalal died intestate and in such case, the properties left by him, would obviously become ancestral properties to his legal heirs, but not the self acquired properties of Chandrabhaga only. But as stated supra, the PW.1 reiterated in his evidence that the suit schedule house, shop and other properties mentioned in Ex.A1 are the exclusive self acquired properties of
Chandrabaga. However, no documents are filed into court to show that those properties are the self acquired properties of Chandrabaga and the PW.1 also categorically admitted that he did not file any documents into court to show 9 that the properties covered under will deed, are only the self acquired properties of his grandmother Chandrabaga. Thus there is no record placed
before this court to show that the properties covered under the will deed, are
the self acquired properties of Chandrabhaga only.
12. No doubt, the plaintiff filed an ownership certificate of the suit schedule property showing that he is the owner of said property as on the date of filing the present suit and that he secured the said property through a will deed under Ex.A1 executed by Chandragaba. As already discussed supra, unless and until the said Chandrabaga holds perfect title and ownership over the suit schedule house and other properties covered under will deed, she will not get any rights to execute a registered will deed bequeathing those properties to others. But no documents are found on record to show that the properties covered under the Ex.A1 were previously stood recorded in the name of Smt.
Chandrabhaga in the Grampanchayath records, atleast for some period and being the original owner and possessor of those properties, she executed the
Ex.A1 in favour of plaintiff, defendant Nos.7 and 8. On the other hand, the documents under Ex.B9 to B18 could disclose that one Rajalal was the owner and possessor of the suit schedule house and other properties covered under
Ex.A1 and that no scrap of paper is filed by plaintiff into court, to show that those properties were mutated on the name of Chandrabaga in the
Grampanchayath records. Therefore, it can be held that without having any legal right to transfer the properties, the said Chandrabhaga executed the
Ex.A1 in favour of plaintiff, defendant Nos.7 and 8.
13. The another important aspect to be considered is, proving the will deed.
Unless and until the will deed is proved, the plaintiff cannot get the title over the suit schedule property. It is the specific plea of the plaintiff that by virtue of will deed, the said Chandrabaga bequeathed two houses bearing
H.No.1239 and 1239/1 in favour of plaintiff, defendant Nos.7 and 8 equally 10 and subsequently after her demise, the plaintiff, defendant Nos.7 and 8 orally partitioned those properties, wherein the plaintiff secured the suit schedule property and another property towards his share and also got mutated those properties on his name in the Grampanchayat records. It is to be noted here that, unless and until a registered document is produced into the
Grampanchayath office, the authorities of grampanchayath will not mutate any house property in the name of another person by deleting the name of original owner appearing in the record.
14. Admittedly, the will deed under Ex.A1 was executed for two properties which were subsequently partitioned among the plaintiff, defendant Nos.7 and 8 and as per the evidence of plaintiff side witnesses, the partition of said properties among plaintiff, defendant Nos.7 and 8 is only oral and no documents were executed with regard to their partition. But it is surprising to note that, though the will deed was executed for all the properties for the joint shares of plaintiff, defendant Nos.7 and 8 and without producing any partition deed pertains to the properties covered under Ex.A1, the Grampanchayath authorities peacefully mutated the suit schedule property and another house in the name of plaintiff and the remaining property in the names of defendant
Nos.7 and 8 in Grampanchayath records, for the reasons best known to them.
When no partition deed is produced in the Grampanchayath office, showing the partition and allotment of particular property towards the share of either plaintiff or defendant Nos.7 and 8, the Grampanchayath authorities cannot mutate the properties fell to their respective shares. But in this peculiar case, it appears that basing on the will deed/Ex.A1 only, the properties were mutated in the names of plaintiff, defendant Nos.7 and 8, according to their shares got in oral partition, which is against the procedure.
15. Reverting to the actual aspect of proving the will deed, burden lies on the plaintiff to prove the will deed. For proving the will deed, the plaintiff has to 11 either produce original will deed into court or take the leave of the court
U/Sec.66 of Indian Evidence Act, to mark the certified copy of will deed in case of its non availability. Further, the plaintiff has to examine the attestors of will deed. But as seen from the record, neither the original will deed is produced into court, nor the attestors of such document were examined as witnesses and on the other hand, the certified copy such will deed was marked as ExA1. It is borne by record that at the time of marking the certified copy of will deed as
Ex.A1, the learned counsel for defendants raised objection for marking the same that the same cannot be marked unless the plaintiff had shown the non availability of original will deed or his inability to produce the same into court.
But either of the above, were not resorted to by the plaintiff.
16. It is submitted on behalf of the plaintiff that, the original of will deed is remained with the defendant No.8. In such case and when the original of will deed is remained with the defendant No.8, the plaintiff was at liberty to take steps to summon such original will deed from the defendant No.8 through the process of court. However, the plaintiff did not take any steps to summon the original of will deed from the defendant No.8. Admittedly, the defendant No.8 is none other than the junior paternal uncle of the plaintiff and as such, the production of original will deed into court may not be a burden for him or even if the defendant No.8 is reluctant to produce the original will deed into court, atleast the plaintiff should have taken steps to summon the original will deed to the court through process of court, but in vain. On the other hand, the plaintiff straight away got marked the certified copy of such will deed under
Ex.A1, without obtaining any leave from the court U/Sec.66 of the Indian
Evidence Act, for leading secondary evidence.
17. It is not the plea of plaintiff that the defendant No.8 is not alive, so that the summoning of original will deed from him, to the court is impossible. Even the plaintiff also failed to summon atleast the defendant No.8 through process 12 of court, for examining him as a witnesses, with regard to the execution of will deed and of bequeathing the properties to the plaintiff, defendant Nos.7 and 8 by the said Chandra Bhaga, so also the partition of properties covered by will deed, among the plaintiff, defendant Nos.7 and 8. Admittedly, the plaintiff is not either an adopted son or broughtup son of said Chandrabaga, unlike the defendant Nos.7 and 8 and the fact remains that, the said Chandrabaga brought up the father of plaintiff namely Prasad who was alive by that time of execution of will deed. In such case and when the said Chandrabaga either adopted or brought up three sons namely Prasad/father of plaintiff, defendant
Nos.7 and 8 as her sons since she was issueless, invariably she has to bequeath her properties only either on her adopted or brought up sons namely
Prasad, defendant Nos.7 and 8, but not to her grand son like plaintiff.
18. It is specifically averred in the written statement that, since the father of plaintiff became drunkard, used to play cards and moves as a wagabond suspecting the welfare of such properties, the said Chandrabaga bequeathed her properties to the defendant Nos.7 and 8 and the plaintiff who is the elder son of said Prasad and that does not mean that, the properties given to the plaintiff are the exclusive properties of plaintiff only, since there are seven other sons and two daughters remained to the said Kankanala Prasad. It is not the plea of plaintiff that, his father namely K.Prasad and his brothers/right from defendant Nos.1 to 6, were allotted some other properties by the said
Chandrabaga and as such, she bequeathed the suit schedule property and another shop to the plaintiff, towards his share under the Ex.A1. In view of the above discussion and allotment of some properties to the defendant Nos.7 and 8 and allotment of some properties in the name of plaintiff, makes it clear that, the executant of will deed namely K.Chandrabhaga intended to give the share of properties pertains to the father of plaintiff, in the name of plaintiff only and that does not mean that she had given the said properties exclusively to the 13 plaintiff and that those properties would become the joint family properties for the plaintiff and defendant Nos.1 to 6 and their sisters only.
19. Coming to the documentary evidence produced by plaintiff as PW.1, it is evident from the record that, Ex.A1 to A15 were marked on behalf of the plaintiff. Out of the said documents, Ex.A1 is the certified copy of registered will deed for which a detailed discussion was already done in the forgoing paras, with regard to its validity. Ex.A2 is the house ownership certificate
dt:1042013 issued by the Nagarapanchayath Vemulawada, which discloses
that the suit schedule house was stood recorded in the name of plaintiff in the
Nagarapanchayath records. It is a settled proposition of law that, mere entries in the grampanchayath record with regard to the ownership of a particular person over a particular property, does not confer any title or ownership over such property. It is also the further settled law that, the entries in
Grampanchayath records are only for the sake of collection of house taxes and another allied taxes to the government only and it does not confer any title over the property. With the above discussion it can be said that, just because the suit schedule property stood recorded in the name of plaintiff in the
Grampanchayath records, that does not mean that he is only the exclusive owner and possessor of such property.
20. The remaining documents under Exs.A4 to A15 are the office copy of legal notice got sent by the plaintiff to the defendants, reply notice, rejoinder notice, property tax receipts, Aadhar card of plaintiff and postal acknowledgements served on counsel for defendants, with regard to the service of notices etc., which are nothing but consequential documents to the legal notice and nothing more. On over all scrutiny of the documents marked on behalf of the plaintiff, a prudent man can say that, except the Exs.A1 and A2, the remaining documents are only connected/ancillary documents. As already discussed supra, in respect of the Exs.A1 and A2, a detailed discussion was 14 already held with regard to their validity and the final conclusion that can be arrived is that the Exs.A1 and A2 are no way helpful to the plaintiff for seeking the relief of declaration of title over the suit schedule property.
21. Coming to the oral evidence adduced on behalf of plaintiff, it is evident from the record that, the evidence affidavits of PWs.1 to 4 were filed on behalf of the plaintiff, out of which the chief examination of PW.2 was eschewed since he did not turn up for cross examination. The evidence remained on record is,
PWs1, 3 and 4. The PW.1 is none other than the plaintiff only. In his chief examination affidavit the PW.1 reiterated the contents of his plaint. Further, during the cross examination by the learned counsel for defendants, the PW.1 revealed new facts which were not at all pleaded by him. As seen from the averments of plaint, nowhere it is revealed by the plaintiff, the relationship between him and the executant of will deed namely Chandrabhaga, so also the relationship among the said Chandrabhaga, the defendant Nos.7 and 8.
However, during the cross examination in page No.6, the PW.1 admits that the said Chandrabaga is his paternal grand mother and that his father namely
Prasad and his two brothers namely Kishan and Srinivas are the brought up sons of said Chandrabaga and that he did not know the names of natural parents of his father, defendant Nos.7 and 8.
22. As stated supra, nowhere it is stated in the plaint averements that, as to in which capacity the said Chandrabhaga took the father of plaintiff, defendant
Nos.7 and 8 to her house, either in the capacity of adopted sons or brought up sons. Whatever it may be, it is undisputed fact that, all the said three children were brought up by the said Chandrabhaga in her house and gave some of her properties to them. It is also repeatedly admitted by PW.1 in his evidence that, the said Chandrabhaga brought up the said children namely Prasad, defendant
Nos.7 and 8 as her sons in her house, since she was issueless. So obviously one can presume that she kept the all her sons with her under the same roof 15 and brought up them as her sons and since she brought them at the age of their child hood, one cannot except that she may kept one boy in one house each in three of her houses and brought them up separately. But surprisingly, the PW.1 admitted in his cross examination that his father, his brothers and his grand mother has not resided in the same house when she brought up them, and that she kept those three children in different houses individually and brought up them, which appears to be an unnatural thing.
23. Similarly, the house number wherein his father was brought up by the said Chandrabhaga as stated by PW.1 is, H.No.17106, which is the suit schedule property, whereas the house number wherein the defendant Nos.7 and 8 were brought up was H.No.1239/1. It is crystal clear from the averments of para No.4 of plaint pleadings that, the H.No.1239/1 was allotted a new house number as H.No.17106, which is the suit schedule property.
Apparently both the said house numbers are one and the same and belongs to one house only. But as per the cross examination of PW.1, the said two house numbers are different, which is the contradictory statement of PW.1 in between his pleadings and evidence. Further contradicting the same, the PW.1 lastly says that the said two house numbers belongs to one and the same house only, which gives further confusion on his evidence.
24. Apart from it, the PW.1 also categorically admitted in his cross examination with regard to the date of his marriage, his age at the time of execution of will deed etc., that he stayed in the suit schedule property only for short period soonafter his marriage and his long standing residing is in rented houses only etc., which are ofcourse noway relevant to the present issues, but they are quite bearing upon the trustworthiness of his evidence. Thus in view of above discussion and viewed from any angle it is crystal clear that, though the late K.Chandrabhaga bequeathed the house numbers 1239 and 1239/1 in favour of plaintiff, defendant Nos.7 and 8 equally, but the suit schedule 16 property and another property given to the plaintiff on record, in the name of plaintiff, are not at all the properties exclusively allotted to the share of plaintiff and that in addition to the plaintiff, the defendant Nos.1 to 6 are also having their rights over the said properties and the evidence adduced by the plaintiff is also did not prove about the partition of properties covered under the will deed among the plaintiff, defendant Nos.7 and 8. The issue Nos.1 and 2 are answered accordingly.
ISSUE NO.3:
25. By virtue of finding given on the issue Nos.1 and 2, it is proved that just because the suit schedule property and another property were allotted in the name of plaintiff in lieu of his father's share, they are not the exclusive properties of plaintiff only, so that the plaintiff is alone not the owner and possessor of such properties and that the rights of defendant Nos.1 to 6 are also involved in the said properties. It is also crystal clear from the admission of plaintiff as PW.1 that, only for few days after his marriage in the year 1994, the plaintiff resided in the suit schedule house and since then, he has been residing outside the suit schedule property. Surprisingly, the PW.1 himself admits in his cross examination that he let out the shop to his younger brother/defendant No.2 wherein the defendant Nos.1 and 8 are running a shop since 7½ years, but there is no lease agreement between them and that his wife namely Vijaya also previously filed civil suit for perpetual injunction in
Vemulawada court, which discloses that there were earlier litigation on the said property.
26. Be that as it may, the PW.3 admitted several aspects contrary to the claim of plaintiff stating that, the plaintiff has been still residing in the suit schedule property since his child hood to till date, but he did not know the house number of the said property. The PW.3 further stated that the 17 grandmother of plaintiff executed gift deed in favour of plaintiff, but he did not sign on it and had not seen it so far. In addition to it, in the last few lies of his cross examination, the PW.3 admits that he did not know the contents of his chief examination affidavit. On the other hand, the another witness on behalf of plaintiff who was examined as PW.4 categorically admitted that even till today also, the plaintiff is still residing in a rented house and that till two years after his marriage, the plaintiff resided in the rented house, whereas the parents of defendant Nos.1 to 6 resided in the old house till the death of their parents. It is interesting to note here that, the PW.4 admitted in page No.3 of his cross examination that the plaintiff and his wife resided in Rajivnagar,
Sircilla and that he also visited the said house and that the plaintiff filed the present suit against the six defendants only, which are quite contrary to the plaintiff's case. Whatever it may be, viewed from any angle, there is no convincing evidence adduced by the plaintiff to show his previous title or possession over the suit schedule property. In those circumstances, it is needless to say that, the plaintiff is not entitled to be declared as owner of the suit schedule property. The issue No.3 is answered accordingly.
ISSUE NO.4:
27. As already discussed supra in the previous issues, when the plaintiff is not at all declared as owner of the suit schedule property, he cannot recover the possession of the suit schedule house from the defendant Nos.1 to 6. As such, it can be finally concluded that the plaintiff is not entitled to recover the possession over the suit schedule property from the defendant Nos.1 to 6 as prayed for. The issue No.4 is answered accordingly.
ISSUE NO.5:
28. The burden lies on defendant Nos.1 to 6 to prove this issue since they asserted the same. The DWs.1 and 2 were examined, Exs.B1 to B21 were 18 marked on behalf of defendant Nos.1 to 6, which disclose that the defendant
Nos.1 to 6 have been residing in the suit schedule house since long time and approximately since more than 20 years, to the knowledge of plaintiff.
Therefore without going to any depth discussion, it can be said that the defendant Nos.1 to 6 perfected their title over the suit schedule house, even by adverse possession. The issue No.5 is answered accordingly.
ISSUE NO.6:
29. In view of the conclusions arrived by this court through the issue Nos.1 to 5, the suit of plaintiff fails and accordingly the same is liable to be dismissed.
30. IN THE RESULT, the suit of plaintiff be and is hereby dismissed. But in the circumstances of the case, each party shall bear their own costs.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in the open Court on this the 26th day of July, 2019.
SENIOR CIVIL JUDGE,
SIRCILLA
APPENDIX OF EVIDENCE
WITNESSES EXAMINED.
FOR PLAINTIFF: FOR DEFENDANTS:
P.W.1 : Kankanala Rajender. DW.1: Kankanala Sathish. P.W.2 : Vuyyala Bhumaiah (Eschewed). DW.2: Thogari Bhagya Laxmi. P.W.3 : Pilli Parshaiah. P.W.4 : Kone Thirupathi.
EXHIBITS MARKED.
FOR PLAINTIFF:
Ex.A.1: Certified copy of registered will deed vide document No.5/1991
dt:26121991.
Ex.A2 : Original house ownership certificate dt:1042013 issued by Commissioner, Nagara Panchayath, Vemulawada.
Ex.A3 : Office copy of legal notice dt:3012013.
Ex.A4 : Postal receipts (6 Nos.).
Ex.A5 : Postal acknowledgement card of defendant No.3.
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Ex.A6 : Postal acknowledgement card of defendant No.6.
Ex.A7 : Returned envelop of defendant No.5.
Ex.A8 : Returned envelop of defendant No.4.
Ex.A9 : Returned envelop of defendant No.2.
Ex.A10 : Returned envelop of defendant No.1.
Ex.A11: Reply notice dt:1922013.
Ex.A12: Rejoinder to the reply notice dt:1742013.
Ex.A13 : Property tax receipt dt:18122014.
Ex.A14: Aadhar card of plaintiff.
Ex.A15 : Postal acknowledgment card served on Sri.N.Thirumal Goud, previous counsel for defendants.
FOR DEFENDANTS: Ex.B1: Original Rajeev Arogyasri health card of father of DW.1 namely Kankanala Prasad. Ex.B2: Original photo election voter identity card of elder brother of DW.1 namely Kankanala Ravinder/defendant No.1. Ex.B3: Original Aadhar card of defendant No.3. Ex.B4: Original photo election voter identity card of brother of DW.1 namely Kankanala Vijay/defendant No.2. Ex.B5: Original Aadhar card of brother of DW.1 namely Kankanala Suresh/defendant No.4. Ex.B6: Original photo election voter identity card of brother of DW.1 namely Kankanala Suresh/defendant No.4. Ex.B7 : Original photo election voter identity card of brother of DW.1 namely Kankanala Rakesh/defendant No.5. Ex.B8 : Household card of brother of DW.1 namely Kankanala Ravinder/defendant No.1. Ex.B9 :Certified copy of lease deed dt:1951955 in Urdu language along with true translation to Telugu. Ex.B10: Original demand notice issued by executive officer, Grampanchayath, Vemulawada. Ex.B11: Original demand notice dt:371965 issued by executive officer, Grampanchayath, Vemulawada. Ex.B12: Original Reply dt:361966 issued to the E.O., Grampanchayath, Vemulawada by Kankanala Chandrabhaga. Ex.B13: Original notice dt:9121965 issued by E.O., Grampanchayat, Vemulawada to Kankanala Chandrabhaga. Ex.B14: Original agreement dt:2741987executedin between Smt.Kankanala Chandrabhaga and her sons. (Impounded in court). Ex.B15 : Original Electricity payment receipts (36 Nos.). Ex.B16 : Original house tax payment receipt dt:2762018. Ex.B17 ; Original house tax payment receipt dt:482012. Ex.B18 : Original registered sale deed vide document No.41/1358 Fasli
dt:1631958 in Urdu language, along with true Telugu
translation. Ex.B19: Original household card of parents of DW.1. Ex.B20: Original election photo identity card of father of Kankanala Prasad. Ex.B21: Original election photo identity card of mother of DW.1 namely Kankanala Lalitha.
SENIOR CIVIL JUDGE,
SIRCILLA.
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