1 O.S.No. 37 of 2011 Dt:18.04.2023
IN THE COURT OF THE SENIOR CIVIL JUDGE AT CHIRALA.
Present : Smt M.Shubhavani,Present : Smt M.Shubhavani,
Senior Civil Judge, ChiralaSenior Civil Judge, Chirala
Tuesday, this the 18 th Tuesday, this the 18 th day of April, 2023 day of April, 2023
O.S.No. 37 of 2011 O.S.No. 37 of 2011
Between: Between:
1. Nellipudi Ganga Rajamma (Died), W/o. Late Venkata Rao,1. Nellipudi Ganga Rajamma (Died), W/o. Late Venkata Rao, Aged 85 years, Hindu, Dependent,Aged 85 years, Hindu, Dependent, R/o. D.No. 20-4-33, Kasulamara Street, Chirala.R/o. D.No. 20-4-33, Kasulamara Street, Chirala.
2. Nellipudi Veera Brahmam, S/o. Venkata Rao,2. Nellipudi Veera Brahmam, S/o. Venkata Rao, Aged 60 years, Hindu,Aged 60 years, Hindu, R/o. D.No. 20-4-33, Kasulamara Street, Chirala. R/o. D.No. 20-4-33, Kasulamara Street, Chirala. … .Plaintiffs … .Plaintiffs
V/s V/s
Muvvala Sujatha, W/o. Sambasiva Rao,Muvvala Sujatha, W/o. Sambasiva Rao, Aged 55 years, Hindu,Aged 55 years, Hindu, R/o. Gopal Nagar, Kothapeta Village & Post, Vetapalem Mandal,R/o. Gopal Nagar, Kothapeta Village & Post, Vetapalem Mandal, Prakasam District. . Prakasam District
… ..Defendant … ..Defendant
This suit is presented before me today i.e., on 24.03.2023, forThis suit is presented before me today i.e., on 24.03.2023, for
Judgment, in the presence of Sri. G. Mallikarjuna Rao, & Judgment, in the presence of Sri. G. Mallikarjuna Rao, & K. K.
SeshagiriraoAdvocate for the Plaintiff, and of SeshagiriraoAdvocate for the Plaintiff, and of Sri. B. Hemantha Sri. B. Hemantha
Kumar, Advocate for the Defendant, upon perusing the oral andKumar, Advocate for the Defendant, upon perusing the oral and documentary evidence on record, upon hearing the arguments on bothdocumentary evidence on record, upon hearing the arguments on both sides and having stood over for consideration till this day, this Courtsides and having stood over for consideration till this day, this Court delivered the following:delivered the following:
// J U D G M E N T // // J U D G M E N T //
01.This is a suit filed for declaration that the plaintiffs are the absolute owners of the plaint schedule site Ac.0.05 cents and Ac.0.01 ½ cents respectively, for possession of the plaint schedule site an extent of
Ac.0.06 ½ cents which is within the illegal occupation of the defendant and put the plaintiffs into possession without any objections for mandatory injunction directing the defendant to remove the sheds from the suit schedule site, for Permanent InjunctionPermanent Injunction restraining the defendant and her men from not making any alternations or constructions in the plaint schedule site and for costs.
2 O.S.No. 37 of 2011 Dt:18.04.2023
02. The averments of the Plaint, in brief, are as follows:-
The 2nd plaintiff is the son of 1st plaintiff. The 1st plaintiff purchased an extent of Ac.0.20 cents of vacant site in S.No. 125/1 and 126/1 of Kothapalem Village on 18.11.1980 from one Gollaprolu
Rangaiah and Chukka Subbaiah for valuable consideration under
Registered sale deed. From that day, the 1st plaintiff is in possessionRegistered sale deedpossession and enjoyment of the said site without any interruption from anybody.and enjoyment
Later, she gifted the said property to her son i.e., 2nd plaintiff to an extent of Ac.0.15 cents under Registered Gift Deed dated 24.06.2003 with absolute rights. The 2nd plaintiff sold away an extent of Ac.0.13 ½ cents to one Kota Saibabu and Yandamuri Venkata Satyanarayana under
Registered sale deed dated 04.05.2006. The plaintiffs No.1 and 2 are inRegistered sale deed possession and enjoyment of remaining part of the site i.e., Ac.0.06 ½possession and enjoyment cents which is shown as suit schedule propertysuit schedule property, but the same is in illegal occupation of the defendant, though the plaintiffs 1 & 2 are the absolute owners of plaint schedule propertyplaint schedule property. The defendant offered to purchase plaint schedule propertyplaint schedule property from plaintiffs and requested them to construct thatched shed in the suit property. For the last 3 years, the defendant is trying to grab the suit schedule propertysuit schedule property from plaintiffs with the help of their nephew Desi Srinu. Having came to know, the 2nd plaintiff requested the defendant to vacate the suit schedule premises or to purchase the suit propertysuit property. The defendant used to postpone either to vacate or to purchase the property. It is also came to the notice of the plaintiffs that the defendant with the help of Desi Srinu trying to change the Revenue Panchayat Records to grab the same. The 2nd plaintiff went to the defendant and requested her to remove the structures and to deliver vacant possession of suit propertysuit property. The defendant inspite of removing the same raised another shed in suitsuit property with the help of political support. Though, she do not haveproperty any right to do so. The defendant is trying to raise constructions in suitsuit 3 O.S.No. 37 of 2011 Dt:18.04.2023 property. The plaintiffs are unable to resist the illegal activities of theproperty defendant. Hence, the plaintiff constrained to file this suit for declaration of possession, Mandatory Injunction and for PermanentPermanent
Injunction over suit propertyInjunctionsuit property. Subsequently, the 1st plaintiff during her life time executed the Registered Will bequeathing the remaining
Ac.0.05 cents in favour of 2nd plaintiff on 24.06.2003.
03.The Defendant filed written statement by denying the allegations mentioned in plaint and further stated that, the defendant is the absolute owner of suit propertysuit property. The defendant’s father Muvvala
Sambasiva Rao during his life time purchased an extent of Ac.0.04 cents out of Ac.0.11 cents in S.No. 126/1 of Kothapeta Village from
Chinthalapudi Venkaiah, S/o. Venkateswarlu under Registered sale deedRegistered sale deed
dated 02.02.1989. The said Sambasivarao constructed a house and
resided therein. He got two daughters Sivaleela and Suneetha Lakshmi through first wife Kamala. The defendant is the second wife of said
Sambasiva Rao and they got one daughter Madhavi. The said
Sambasiva Rao executed a Registered Gift Deed dated 10.10.2003 to an extent of Ac.0.02 cents and house therein situated on the western side in favour of Muvvala Suneetha with vested reminder reserving life interest with him. Later, the both Sambasivarao and Suneetha Lakshmi out of love and affection towards Madhavi, executed a Registered Gift
Deed dated 26.02.2004, as she was minor represented by the defendant as guardian and delivered possession of the said property on that day itself. Ever since then, the defendant during minority of Madhavi, is in possession and enjoyment of the said site. Later, the said Madhavipossession and enjoyment attained majority and she is in possession and enjoymentpossession and enjoyment of the site.
The said Sambasiva Rao gifted remaining Ac.0.02 cents to his daughter
Sivaleela out of love and affection under Registered Gift Deed dated 12.08.2002 and delivered possession to her. The site of plaintiffs was 4 O.S.No. 37 of 2011 Dt:18.04.2023 situated towards southern side of the said site. The plaintiffs are also aware of the same. It is further mentioned that,It is further mentioned that, the vendor o
Sambasiva Rao, Chintalapudi Venkaiah got an extent of Ac.0.11 cents of site in S.No. 126/1 of Kothapet ilalge and another site under registered
Gift Deed dated 01.10.1982 executed and registered by his grand father
Peravalli Chenchu Punnaiah son of Venkateswarlu. The said site was shown as item No.1 in ‘A’ schedule of Gift Deed. B schedule properties were gifted to Chintalapudi Punna Rao who is co-beneficiary along with
Venkaiah. The possession of the respective properties were delivered on that day only. The said Chintapaludi Punnaiah and his maternal uncle Chintalapudi Subbaiah partitioned their joint property under registered partition deed dated 04.04.1966. In the said partition the B schedule land fell to the share of Chintalapudi Punnaiah. The said sharers jointly purchased the said land in the year 1947. The plaintiffs are not having any title and possession over suit schedule propertysuit schedule property and the plaint schedule propertyplaint schedule property absolutely belongs to Madhavi, who is a proper and necessary party to the suit. The suit is bad for non-joinder of necessary parties, as all the enjoyers are not shown as parties to the suit. The site of the plaintiffs is situated on the southern side of above referred site. There is no cause of action for this suit and the defendant prays to dismiss this suit with costs.
04.During pendency of the suit, the 1st plaintiff died on 12.11.2011 and the 2nd plaintiff is the sole legal heir to the 1st plaintiff. The said amendment was carried out and neat copy was filed by stating that the 1st plaintiff bequeathed item No.1 of suit propertysuit property in favour of 2nd plaintiff by way of registered Will dated 24.06.2003 and so, the 2nd plaintiff is the sole legal representative for item No.1 of suit schedulesuit schedule property.property 5 O.S.No. 37 of 2011 Dt:18.04.2023
05.The defendant filed additional written statementwritten statement by stating that, the 2nd plaintiff fabricated the alleged Will dated 24.06.2003 said to be executed by 1st plaintiff and the same is not binding on defendant.
Neither the 1st plaintiff nor the 2nd plaintiff have no right, title and possession over plaint schedule propertyplaint schedule property. The 1st plaintiff cannot convey better title what she had. The 1st plaintiff herself has no right, title and possession over plaint schedule propertyplaint schedule property. So, question of conveying absolute right to 2nd plaintiff does not arise and prays to dismiss the suit with costs.
06. Basing on the aforesaid averments, the following issues were settled for trial:-
1. Whether the Plaintiffs are entitled for declaration as prayed for?
2. Whether plaintiffs are entitled for possession as prayed for?
3. Whether plaintiffs are entitled for mandatory injunction as prayed for?
4. Whether plaintiffs are entitled for Permanent InjunctionPermanent Injunction as prayed for?
5.To What relief?
07. On behalf of the Plaintiffs, PW1 to PW4 wereexamined and
Ex.A1 to Ex.A6 were marked. On behalf Defendants, DW1 to DW3 were examined and Ex.B1 to Ex.B5 were marked. Through Advocate
Commissioner (PW4) Ex.C1 to Ex.C3 were marked.
08.Heard on both sides.
ISSUE No.1:
09.The 2nd plaintiff examined himself as PW1 and got filed his chief- affidavit reiterating the contents of the plaint that the 1st plaintiff i.e., his mother purchased an extent of Ac.0.20 cents of vacant site in S.No.
125/1 and 126/1 of Kothapeta Village under Registered sale deedRegistered sale deed dated 18.11.1980 from one Chukka Subbamma for valuable consideration and from that, the 1st plaintiff has been in continuous and uninterrupted 6 O.S.No. 37 of 2011 Dt:18.04.2023 possession of plaint schedule propertyplaint schedule property. In support of the same, the
Registered sale deed dated 18.11.1980 marked as Ex.A1. Subsequently,Registered sale deed the 1st plaintiff executed Registered Gift Deed dated 24.06.2003, in his favour to an extent of Ac.0.15 cents out of Ac.0.020 cents, with absolute rights. On the same day, the 1st plaintiff bequeathed the remaining extent of Ac.0.05 cents of vacant site of suit schedule propertysuit schedule property out of
Ac.0.20 cents under a Registered Will to him. In support of his case, the certified copy of Registered Gift Deed dated 24.06.2003, is marked as Ex.A2 and Registered Will dated 24.06.2003 is marked as Ex.A3.
The Death Certificate of 1st plaintiff is marked as Ex.A5. Subsequently,
PW1 sold to an extent of Ac.0.13 ½ cents out of Ac.0.15 cents of vacant site to one Kota Saibabu and Yandamuri Venkata Satyanarayana under
Registered sale deed dated 04.05.2006. After executing the said saleRegistered sale deed deed, PW1 got remaining Ac.0.06 ½ cents of site i.e., suit schedulesuit schedule property as such himself and his mother are absolute owners. Inproperty support of the same Certified copy ofCertified copy of Registered sale deedRegistered sale deed dated 04.05.2006 is marked as Ex.A4.
10.The plaintiff got examined one of the attestors of Ex.A1 as PW2.
PW2 filed his chief-affidavit that, 1st plaintiff purchased Ac.0.20 cents from Gollaprolu Ranaiah and another. From that day, 1st plaintiff was in possession and enjoyment of the said land. During her life time, shepossession and enjoyment executed Registered Gift Deed under Ex.A2 and also Registered Will under Ex.A3 in favour of her son i.e., PW1. After death of 1st plaintiff,
Ac.0.05 cents of land was devolved upon PW1, as per the terms of
Ex.A3.
11.The plaintiff also got examined one of the attestors of Will as PW3 and she filed her chief-affidavit that, she stood as one of the attestors of
Ex.A3 and 1st plaintiff executed a Will in favour of PW1 under Ex.A3, to an extent of Ac.0.05 cents and also executed Ex.A2 in favour of PW1 to 7 O.S.No. 37 of 2011 Dt:18.04.2023 an extent of Ac.0.15 cents. After death of 1st plaintiff, PW1 became title holder to Will property.
12.On the other hand, it is the case of the defendants that, theOn the other hand, plaintiffs do not have any right, title or possession over suit schedulesuit schedule property as the said property is absolute property of her daughterproperty
Madhavi, who is a proper and necessary party to this suit. In support of her case, the defendant got examined herself as DW1 and got filed her chief-affidavit by stating that one Muvvala Sambasiva Rao is her husband and he purchased an extent of Ac.0.04 cents out of Ac.0.11 cents in S.No. 126/1 of Kothapeta Village from Chinthalapudi Venkaiah,
S/o. Venkateswarlu under Registered sale deedRegistered sale deed dated 02.02.1989. In support of her case the said Registered sale deedRegistered sale deed dated 02.02.1989 is marked as Ex.B3. It is further mentioned that,It is further mentioned that, her husband constructed a house and resided therein. He got two daughters Sivaleela and
Suneetha Lakshmi through first wife Kamala.
13.The defendant is the second wife of said Sambasiva Rao and they got one daughter Madhavi. The said Sambasiva Rao executed a
Registered Gift Deed dated 10.10.2003 to an extent of Ac.0.02 cents and house therein situated on the western side in favour of Muvvala
Suneetha with vested reminder reserving life interest with him. In support of her case, the said Registered Gift Deed dated 10.10.2003 stands in favour of Sunnetha Lakshmi executed by Muvvala Sambasiva
Rao is marked as Ex.B2. Later, the both Sambasivarao and Suneetha
Lakshmi out of love and affection towards Madhavi, executed a
Registered Gift Deed dated 26.02.2004. The said Registered Gift Deed
dated 26.02.2004 is marked as Ex.B1. As the said Madhavai was a
minor represented by the defendant as guardian and delivered possession of the said property on that day itself. Ever since then, the defendant during minority of Madhavi, is in possession and enjoymentpossession and enjoyment 8 O.S.No. 37 of 2011 Dt:18.04.2023 of the said site. Later, the said Madhavi attained majority and she is in possession and enjoyment of the site. The said Sambasiva Rao giftedpossession and enjoyment remaining Ac.0.02 cents to his daughter Sivaleela out of love and affection under Registered Gift Deed dated 12.08.2002 and delivered possession to her. The site of plaintiffs was situated towards southern side of the said site.
14.In support of her case, the defendant got examined the vendor under Ex.B3 i.e., Chinthalapudi Venkaiah as DW2. DW2 filed his chief- affidavit by stating that his grand father Chinthalapudi Subbaiah and his nephew Peravalli Chenchu Punnaiah jointly purchased an extent of
Ac.5.35 cents of land in S.No. 126/1 of Kothapeta Village under
Registered sale deed dated 14.03.1947 from Marri Venkaiah and others.Registered sale deed
Later, they partitioned the said land under Registered Partition Deed
dated 04.04.1966 and each got Ac.2.30 cents and Ac.0.22 ½ cents of
land and the remaining extent of Ac.0.30 cents of land was given for formation of road i.e., Papaipalem road. In support of their case, the
Certified copy of Registered Sale DeedCertified copy ofRegistered Sale Deed dated 14.03.1947 stands in the name of Subbaiah and Peravalli Chenchu Punnaiah is marked as Ex.B4.
The Certified copy ofCertified copy of Registered Partition Deed dated 04.04.1966, in between Chinthalapudi Subbaiah and Chenchu Punnaiah marked as
Ex.B5. It is further mentioned in chief-affidavit of DW2 that the said
Chenchu Punnaiah gifted an extent of Ac.0.11 cents and Ac.0.10 cents in S.No. 126/1 of Kothapeta Village to DW2 under Registered Gift Deed
dated 01.10.1982, showing as ‘A’ schedule property and delivered
possession to him on the same day. He had been in possession andpossession and enjoyment of the same till he sold an extent of Ac.0.04 cents out ofenjoyment
Ac.0.11 cents (it was shown as item No.2 of ‘A’ schedule in Gift Deed
dated 01.10.1982) under Registered Deed dated 02.021989, marked as
Ex.B3. In support of the same, the Registered Gift Deed dated 9 O.S.No. 37 of 2011 Dt:18.04.2023 01.10.1982 was not marked by the defendants.
15.The defendant got examined Mason as DW3, in order to support their case that, the husband of defendant by name Muvvala Samba Siva
Rao constructed a house in suit schedule propertysuit schedule property. DW3 filed his chief- affidavit by stating that, Sambasiva Rao engaged him as mason for the construction of thatched house in the year 1989. As per his directions, he constructed house and completed the same within one month. After completion of work the defendant and her husband are residing in the said house. The husband of defendant died at about 13 years and he attended his funerals also. Ever since the construction, the defendant is running a Tiffin Hotel in the plaint schedule propertyschedule property.
16. It is the case of the 2nd plaintiff that his mother i.e., 1st plaintiff who was absolute owner of Ac.0.20 cents of vacant site in S.No. 125/1 and 126/1 of Kothapeta Village, as she purchased the same under Ex.A1 for valuable sale consideration from Chukka Subbamma and 1st plaintiff executed Registered Gift Deed in his favour under Ex.A2 in respect of
Ac.0.15 cents out of Ac.0.20 cents on 24.06.2003. On the same day, the 1st plaintiff bequeathed remaining extent of Ac.0.05 cents of vacant site out of Ac.0.20 cents to him by executing a Registered Will under Ex.A3.
So, by virtue of Ex.A2 and Ex.A3, the 2nd plaintiff got Ac.0.20 cents in his favour, which was purchased by his mother under Ex.A1. Though, the suit was filed at first by both plaintiffs No.1 and 2, but during pendency of the suit the 1st plaintiff died on 12.11.2011 and the Will came into force and the 2nd plaintiff got Ac.0.05 cents bequeathed by her mother under Ex.A3. It is also the case of the 2nd plaintiff that, on 04.05.2006, he sold Ac.0.13 ½ cents out of Ac.0.20 cents under
Registered sale deed dated 04.05.2006, under Ex.A4 in favour of KotaRegistered sale deed
Saibabu and Yandamuri Venkata Satyanarayana, so, now 2nd plaintiff got remaining extent of Ac.0.06 ½ cents which is shown as suit schedulesuit schedule 10 O.S.No. 37 of 2011 Dt:18.04.2023 property.property
17.As seen from Ex.A1, it shows that, the 1st plaintiff purchased an extent of Ac.0.20 cents out of Ac.0.85 cents out of Ac.1.00 in S.No.
125/1 and S.No. 126/1 of Kothapeta Village of Kothapeta Panchayat with boundaries : East: 20 links path way, South: site of Yencherla
Asservadam and others, West: land of Kothamasu Ramaiah, North:
Papaipalem Road for sale consideration amount of Rs.5,000/- from
Rangaiah son of Seshaiah and Chukka Subbamma W/o. Yanadi out of
Ac.0.20 cents under Ex.A1.
18.The plaintiffs got filed the Registered sale deedRegistered sale deed dated 09.12.1976 executed by Satyanarayana son of Kota Reddiaiah in favour of
Gollaprolu Rangaiah son of Gollaprolu Seshaiah for sale consideration amount of Rs.500/- in respect of Ac.0.05 cents out of Ac.0.85 cents out of Ac.1.00 out of Ac.16.68 cents in Division No. 125/1 to an extent of
Ac.11.33 cents and Division No. 126-1 to an extent of Ac.5.35 cents of
Kothapeta Village and same is marked as Ex.A6.Ex.A1 shows that, 1st plaintiff purchased an extent of Ac.0.20 cents from Gollaprolu Rangaiah
S/o. Seshaiah and Chukka Subbamma W/o. Yanadi. The plaintiffs filed
Ex.A6 to show the right and title of vendors of 1st plaintiff i.e.,
Gollaprolu Rangaiah and Chukka Subbamma. Though, Ex.A6 shows that the Registered sale deedRegistered sale deed dated 09.12.1976 was executed in favour of Gollaprolu Rangaiah by Kota Satyanarayana, but the said document was no where mentioned in Ex.A1 to show that Gollaprolu Rangaiah got right and title over suit schedule propertysuit schedule property by virtue of Ex.A6. More over, Ex.A1 shows that, the site to an extent of Ac.0.20 cents out of
Ac.0.85 cents out of Ac.1.00 in S.No. 125/1 and 126/1 of Kothapeta
Village is self acquired property of Gollaprolu Rangaiah and Chukka
Subbamma. It is pertinent to mention here that the plaintiffs did not filed any document to show the right and title of Chukka Subbamma 11 O.S.No. 37 of 2011 Dt:18.04.2023 over Ac.0.20 cents of site, as Ex.A6 shows only the name of Gollaprolu
Rangaiah. As Ex.A1 does not show about Registered sale deedRegistered sale deed dated 09.12.1976 i.e., Ex.A6, there was no explanation from the plaintiffs to connect Ex.A6 with Ex.A1.
19. The 1st plaintiff executed Gift Deed dated 24.06.2003 under Ex.A2 to an extent of Ac.0.15 cents in favour of 2nd plaintiff. The original Gift
Deed was not filed and Ex.A2 is Certified copy ofCertified copy of Gift Deed which shows that the 1st plaintiff gifted an extent of 726 sq yards in S.No. 125/1 and
S.No. 126/1 of Kothapeta Village in block No. 13, Door No. 13-86 of vacant site. The boundaries shown are East: 20 links path way, South:
site of Yencherla Asservadam and others, West: site sold by Kothamasu
Ramaiah to others and North: remaining site of 1st plaintiff. Ex.A1 does not show that the said site of 726 sq yards (equal to Ac.0.15 cents) is located near Door No.13-86 and also the Block No. 13 was not mentioned. The boundaries towards western side and northern side are also not tallied with Ex.A1, when compared with Ex.A2.
20. Subsequently, the 2nd plaintiff sold Ac.0.13 ½ cents out of Ac.0.15 cents to Kota Saibabu and Yandamuri Venkata Satyanarayana on 04.05.2006 unde Ex.A4. Ex.A4 is Certified copy ofCertified copy of Registered sale deedRegistered sale deed
dated 04.05.2006. Ex.A4 shows that, an extent of Ac.0.13 ½ cents
equal to 653 ½ sq yards vacant site situated in S.No. 125/1, S.No.126/1 near Door No. 13/84 in Block No.13 with boundaries East: 20 links path way, South: site purchased by Kota Saibabu and Yandamuri Venkata
Satyanarayana from Thanuku Subhash Chandrabose, West: site sold by
Kothamasu Ramaiah to others and North: Remaining site of 2nd plaintiff.
Ex.A4 when compared to Ex.A2 the Door Number shown as 13-86 in
Ex.A2 and whereas the Door Number 13-84 was shown under Ex.A4.
The southern boundary was also not tallied with Ex.A2.
12 O.S.No. 37 of 2011 Dt:18.04.2023
21.PW2, who stood as one of the identifying witness of Ex.A1 deposed that on 18.11.1980 a sale deed was executed in favour of 1st plaintiff and he was present at that time and he attested the said sale deed. In further cross-examination, after verifying Ex.A1, PW2 deposed that, he did not attested Ex.A1, but he stood as a witness to it.
22.Further, it is the case of the 2nd plaintiff that on 24.06.2003, i.e., on the same day of execution of Ex.A2, his mother/ 1st plaintiff executed a Registered Will in his favour bequeathing Ac.0.05 cents in his favour under Ex.A3. As seen from Ex.A3, it was mentioned by the Testator that she is in fit state of mind and in good health condition to execute Will and also mentioned that, the 2nd plaintiff is looking after her welfare and so, the property which was purchased by her under Ex.A1 was bequeathed in favour of her son, to an extent of Ac.0.05 cents equal to 242 sq yards situated in S.NO. 125/1, S.No.126/1 near Door No. 13-86, in Block No. 13 with boundaries East: 20 links path way, South: site belongs to Yencherla Asservadam and others, West: land sold by
Kothamasu Ramaiah and others, North; Papaipalem Road. The boundaries mentioned under Ex.A3 and the boundaries mentioned under Ex.A2 are one and the same. The boundaries shown under Ex.A2 and Ex.A3 are tallied with schedule shown under Ex.A1, except in adding Block No.13 and Door No. 13-86 in Ex.A2 and Ex.A3. The attestors under Ex.A2 and the attestors under Ex.A3 are one and the same and they are the sisters of 2nd plaintiff and daughters of 1st plaintiff. The 1st attestor of Ex.A2 and Ex.A3 was examined as PW3.
23.Though, Ex.A2 was executed for Ac.0.15 cents out of Ac.0.20 cents and though Ex.A3 was executed for remaining Ac.0.05 cents out of Ac.0.20 cents, the boundaries shown under Ex.A2 and Ex.A3 are one and the same. The boundaries for Ac.0.015 cents and the boundaries for Ac.0.05 cents were shown commonly in both documents. Though, 13 O.S.No. 37 of 2011 Dt:18.04.2023
Ex.A2 and Ex.A3 were executed on one day , but as seen from both documents, the contents under Ex.A2 does not show about Ex.A3, or
Ex.A3 contents does not show about execution of Ex.A2.
24.As seen from the evidence of PW2, he deposed that, he was present at the time of execution of Will/Ex.A3 at the house of 1st plaintiff and he got knowledge that, 2nd plaintiff got Ac0.05 cents of site under
Will/Ex.A3. Will/Ex.A3 was executed at morning hours and Ex.A2
Registered sale deed was executed at evening hours. PW2 deposedRegistered sale deed that, he do not know the scribe of Ex.A2, but one of the family members of 1st plaintiff signed as attestor. The daughter of 2nd plaintiff also attested on Ex.A2. PW2 further deposed that at the time of execution of
Ex.A3 the testator got entire extent of Ac.0.20 cents of land with her and on the same day, the 1st plaintiff also executed Gift Deed under
Ex.A3 in favour of 2nd plaintiff. Though he was present at that time, but he did not stood as attestor under Ex.A3.
25.When it comes to the evidence of PW3, she deposed that, 1st plaintiff is her mother, 2nd plaintiff is her brother and 1st plaintiff executed Will/Ex.A3 on 24.06.2003 and she was present at that time at
Sub-Registrar Office, Chirala. She further deposed that Ex.A3 was computarized one and the same was prepared on the instructions of 2nd plaintiff. She further deposed that, 1st plaintiff purchased stamp papers for Ex.A3, after signing by her mother on all papers onf Ex.A3, she along with her younger sister Nageswaramma attested Ex.A3. PW3 further deposed that she got five brothers and six sisters and at the time of execution of Ex.A3, 1st plaintiff was being looked after by 2nd plaintiff. She also deposed that the 2nd plaintiff purchased(the property covered under Ex.A3) in the name of 1st plaintiff. PW3 also deposed that at the time of execution of Ex.A3 she along with her sister
Nageswaramma (2nd attestor of Ex.A2 and Ex.A3), plaintiffs No.1 and 2 14 O.S.No. 37 of 2011 Dt:18.04.2023 were present. From the evidence of PW3, it shows that the Will/Ex.A3 was executed on 24.06.2003 at Sub-Registrar Office, Chirala and she along with her sister Nageswaramma attested Ex.A3 and her evidence also shows that Ex.A3, which is a computarized one was prepared on the instructions of 2nd plaintiff and 2nd plaintiff was also present at that time. Whereas, PW2 deposed that, Ex.A3 was executed at the house of 1st plaintiff at Kasulamarriveedhi, Chirala, which is entirely different to the evidence of PW3. So, also PW2 deposed that the daughter of 2nd plaintiff stood as one of the attestors under Ex.A3, but as seen from
Ex.A3 and from the evidence of PW3, it shows that the daughters of 1st plaintiff i.e., PW3 and Nageswaramma stood as attestors and the daughter of 2nd plaintiff did not stood as attestor. Though PW3 stood as attestor for Ex.A2, but she did not deposed anything about Ex.A2 and its particulars.
26.PW1 deposed in his cross-examination that, his mother purchased
Ac.0.20 cents of land under Ex.A1 and his mother executed Gift Deed in his favour under Ex.A2, to an extent of Ac.0.15 cents of land. PW1 also deposed that Ex.A2 does not show about executing Will and so also,
Ex.A3/Will does not show about executing Gift Deed/Ex.A2, to an extent of Ac.0.15 cents.
27.Further PW1 deposed in his cross-examination that, after execution of Ex.A4, the remaining Ac. 0. 01 ½ cents out of Ac.0.15 cents is still kept vacant and the boundaries for the said Ac.0.01 ½ cents are
East: 20 links path way, South: Yencherla Asservadam, West: land of
Vattigunta Veera Reddy, North: remaining Ac.0.05 cents of land belongs to his mother. PW1 also deposed that recently he filed a suit for grant of
Permanent Injunction against Kota Saibabu who purchased land to anPermanent Injunction extent of Ac.0.13 ½ cents from him and Ex.A4.
15 O.S.No. 37 of 2011 Dt:18.04.2023
28.During pendency of the suit, as per the Orders in I.A.No. 83/2011
dated 14.06.2017, an Advocate Commissioner was appointed to note
down physical features of plaint schedule propertyplaint schedule property and also to note down measurements of the same with the assistance of Mandal
Surveyor. The Advocate Commissioner inspected the suit property and filed his report. Subsequently, the said Advocate Commissioner was examined as PW4 by the plaintiffs. The Advocate Commissioner deposed in his chief examination that after issuing notice to both parties, he visited suit schedule propertysuit schedule property on 19.08.2017 at 10.00 AM and executed the warrant with the assistance of Mandal Surveyor. At that time, the both parties and the counsel for plaintiffs were present.
He measured the suit property with the help of Mandal Surveyor and he filed his report dated 03.10.2017, marked as Ex.C1 and sketch as
Ex.C2. The sketch prepared by Mandal Surveyor is marked as Ex.C3.
29.PW4 deposed in his cross-examination that, the Mandal Surveyor identified the suit property and prepared Ex.C3. Ex.C1 shows that the suit property was identified through plaintiff and physical features were recorded and its boundaries are North: Road, East: 20 links road,
South: vacant land, West: vacant land and Vattigunta Veera Reddy compound wall. The Advocate Commissioner observed a thatched house, in which defendant is residing with her daughter Madhavi to an extent of Ac.0.02 ¼ cents. The vacant land towards eastern side, separate compound wall in which Custard Appeal Tree, Cimacintha
Tree and cement polls and cement bricks situated in Ac.0.02 cents. It is also mentioned that vacant site is to an extent of Ac.0.0 ¾ cents
30.It was further mentioned in Ex.C1 that, as per the plan received from Mandal Surveyor, Vetapalem, who measured the land basing on the Registered sale deedRegistered sale deed dated 09.12.1976, which stands in the name of
Gollaprolu Rangamma , the said property is situated in S.No. 125/1, but 16 O.S.No. 37 of 2011 Dt:18.04.2023 the documents of defendant are relating to S.No. 126/1. The Surveyor shown the said property in S.No. 125/1 only.
31.The Ex.C2 is the Rough Sketch filed by Advocate Commissioner showing house and also cement polls, cement bricks, trees in vacant site, within the compound wall. The sketch given by Mandal Surveyor, which is marked as Ex.C3 shows small hut of Muvvala Madhavi, which is to an extent of Ac.0.02 ½ cents, vacant site within four compound walls of Sivaleela, W/o. Srinivasa Rao, to an extent of Ac.0.02 cents and vacant site to an extent of Ac.0.0 ¾ cents. The Mandal Surveyor gave his report by mentioning the three sites as situated in S.No. 125/1. So, as seen from Ex.C1 to Ex.C3, it shows that though the documents of defendant are relating to S.No. 126/1, but as per the report given by
Mandal Surveyor the property of defendant is situated in S.No. 125/1 only. So, also the suit schedule propertysuit schedule property is also situated in S.No. 125/1.
Ex.C1 to Ex.C3 also shows that the site to an extent of Ac.0.02 ¼ cents + Ac.0.02 cents + Ac.0.0 ¾ cents are in S.No. 125/1 to an extent in total Ac.0.05 cents. Ex.C1 also shows that the Ac.0.01 ½ cents in S.No.
126/1was not traced.
32.During pendency of the suit, the plaintiffs filed an application in
I.A.No. 1025/2019 under Order 6 Rule 17 CPC to permit him to delete
Ac.0.01 ½ cents and to show the suit schedule to an extent of Ac.0.05 cents only in the place of Ac.0.06 ½ cents. The said application was dismissed on merits on 04.02.2019, on the grounds that if the proposed amendment is permitted there will be inconsistency in between the plaint averments and to the plaint schedule.
33.It was further mentioned in I.A.No. 1025/19 by the plaintiff that the Advocate Commissioner visited suit property with the Assistance of
Mandal Surveyor and measured the same and filed report by 17 O.S.No. 37 of 2011 Dt:18.04.2023 mentioning Ac.0.05 cents with boundaries and the remaining extent is
Ac.0.01 ½ cents. Plaintiffs further mentioned that they preferred a separate suit against one Kota Saibabu in O.S.No. 67/2018 on the file of
Prl. Junior Civil Judge’s Court, Chirala and the plaintiffs are willing toPrl. Junior Civil Judge’s Court, Chirala delete their claim to an extent of Ac.0.01 ½ cents in respect of claim against the defendant herein.
34.During pendency of the suit, the plaintiffs again filed an application in I.A.No.141/21 under Order VI Rule 17 CPC to amend the schedule by showing the suit schedule into two items i.e., Ac.0.06 ½ cents into Ac.0.05 cents and Ac.0.01 ½ cents and same was dismissed on 08.03.2022 on merits. As the plaintiffs failed to mention separate measurements and boundaries for Ac.0.05 cents and also for Ac.0.01 ½ cents and also on considering that the report filed by the Advocate
Commissioner clearly shows that the extent of Ac.0.01 ½ cents of site was ‘not pressed’ by the 2nd plaintiff himself. The plaintiffs filed another application in I.A.No. 1260/2019 under Order XXIII Rule 1 of CPC to withdraw the claim for Ac.0.01 ½ cents of suit property. The said application allowed on merits on 08.03.2022.
35.On the other hand, it is the case of the defendant, that herOn the other hand, husband Muvvala Sambasiva Rao purchased Ac.0.04 cents out of
Ac.0.11 cents in S.No. 126/1 of Kothapeta Village under Registered saleRegistered sale deed dated 02.02.1989, marked as Ex.B3. Ex.B3 shows the schedule asdeed vacant site to an extent of Ac.0.04 cents out of Ac.0.11 cents in Division
No. 126/1, Block No. 12, D.No. 2-37 of Kothapeta Village with boundaries East: the remaining land of vendor. South: land belongs to
Nellipudi Veerabrahmama (2nd plaintiff) and others. West: Land of
Vattigunta Veera Reddy, North: Papaipalem Donka. The defendant further mentioned that the said Sambasiva Rao, constructed a house therein and resided with his family. Subsequently, Sambasiva Rao, 18 O.S.No. 37 of 2011 Dt:18.04.2023 executed Registered Gift Deed dated 10.10.2003 conveying extent of
Ac.0.02 cents in favour of his 2nd daughter Muvvala Suneetha Lakshmi, with vested reminder reserving life interest with him. The said
Registered Gift Deed dated 10.10.2003 is marked as Ex.B2. Ex.B2 shows the schedule of site to an extent of Ac.0.02 cents in Division No.
126/1 in Ward No. 13, D.No. 13-85. In the said site a thatched hut which was constructed at about 3 years back is situated. The boundaries for the said site with thatched hut in an extent of Ac.0.02 cents shows boundaries East: site of Desi Sivaleela, South: site of
Nellippudi Brahmam (2nd plaintiff), West: land of Vattigunta Veera
Reddy, North: Papaipalem Road. Subsequently, the said Sivaleela and suneetha Lakshmi out of love and affection executed Registered Gift
Deed dated 26.02.2004, in favour of Madhavi i.e., the daughter of
Sambasiva Rao and defendant. As Madhavi was minor, she was represented by the defendants showing her as guardian and delivered possession of the property to her. After attaining majority, the Madhavi took possession and enjoyment of the said Ac.0.02 cents. The said
Registered Gift Deed dated 26.02.2004 is marked as Ex.B1.
36.Ex.B1 shows the schedule of site to an extent of Ac.0.02 cents in
Division No. 126/1 in Ward No. 12, Door No. 13-85, in the said site a thatched hut which was constructed at about 4 years back is situated.
The boundaries for the said site is East: site of Desi Sivaleela, South:
site of Nellippudi Brahmam (2nd plaintiff), West: land of Vattigunta Veera
Reddy, North: Papaipalem Road. The boundaries shown under Ex.B1 and Ex.B2 are one and the same. It is also mentioned by the defendant that her husband Sambasiva Rao also executed a Registered Gift Deed
dated 12.08.2022 in favour of Sivaleela, who is daughter of Sambasiva
Rao through his first wife to an extent of Ac.0.02 cents and she is in possession and enjoyment of the same as the possession was deliveredpossession and enjoyment 19 O.S.No. 37 of 2011 Dt:18.04.2023 to her on the date of execution of Registered Gift Deed.
37.It is further mentioned by the defendant that the site of the plaintiffs was situated on the southern side of the land shown under Gift
Deed dated 12.08.2002. The defendant deposed in her cross- examination that, her husband conveyed suit propertysuit property to an extent of
Ac.0.02 cents to his daughter Sivaleela and also to an extent of Ac.0.02 cents to his another daughter Suneetha Lakshmi. The said Suneetha
Lakshmi conveyed Ac.0.02 cents of land to her sister Madhavi.
38.In support of her case, the defendant got examined the vendor of
Ex.B3 as DW2 and he deposed that, his paternal grand father
Chintalapudi Subbaiah and his nephew Peravalli Chenchu Punnaiah jointly purchased an extent of Ac.5.35 cents of land in S.No. 126/1 under Registered sale deedRegistered sale deed dated 14.03.1947 from Marri Venkaiah and others. The certified copy of Registered sale deedRegistered sale deed dated 14.03.1947 is marked as EX.B4. It is also mentioned by DW2 that the both
Chintalapudi Subbaiah and Peravalli Chenchu Punnaiah partitioned the property under Registered Partition Deed dated 04.04.1966 and she got
Ac.2.30 cents and Ac.0.22 ½ cents of land and Ac.0.30 cents of land was given for laying Papaipalem Road. The Certified copy ofCertified copy of Partition Deed
dated 04.04.1966 is marked as Ex.B5. It is further mentioned by DW2
that Pervalli Chenchu Punnaiah gifted an extent of Ac.0.11 cents and
Ac.0.10 cents in S.No. 126/1 of Kothapeta Village to him under
Registered Gift Deed dated 01.10.1982 and delivered possession on the same day. In support of his case the said Registered Gift Deed dated 01.10.1982 was not filed. Further, DW2 deposed that, out of Ac.0.11 cents in s.No. 126/1 of Kothapeta Village, he sold an extent of Ac.0.04 cents to Muvvala Sambasiva Rao under Ex.B3. He also deposed that his brother Punna Rao sold an extent of Ac.0.01 ½ cents in S.No. 126/1 of
Kothapet Village.
20 O.S.No. 37 of 2011 Dt:18.04.2023
39.When it comes to the cross-examination of PW1, he deposed that, he do not know about purchasing of Ac.0.04 cents of site by Sambasiva
Rao under Ex.B3 and also about execution of Ex.B2 and Ex.B3, but he admitted that the defendant is showing the property covered under
Registered Gift Deed dated 26.02.2004 i.e., Ex.B1 and he also deposed that by the date of execution of Gift Deed under Ex.B1, there is a thatched house in the said land. So, from the evidence of PW1, it clearly shows that the defendant is residing in the property covered under Ex.B1 and as on the date of execution of Ex.B1, there is a thatched house in the said site.
40.Though, the documents filed by the defendant, under Ex.B1 to
Ex.B3 shows that the site to an extent of Ac.0.02 cents is situated in
S.No. 126/1 , but whereas the Advocate Commissioner who filed his report under Ex.C1 shows that the land of the defendant is situated in
S.No. 125/1, but not in S.No. 126/1. The sketch given by Mandal
Surveyor, Vetapalem under Ex.C3 shows that Muvvala Madhavi (daughter of defendant) is in possession and enjoymentpossession and enjoyment of the site and small hut to an extent of Ac.0.02 ½ cents, there is a vacant site within compound wall on four sides which belongs to Sivaleela to an extent of
Ac.0.02 cents and there is a vacant site to an extent of Ac.0.0 ¾ cents.
Sivaleela is the daughter of Sambasiva Rao, through his first wife and he gifted Ac.0.02 cents of site to her under Registered Gift Deed dated 12.08.2022, but the defendant did not filed the said Registered Gift
Deed dated 12.08.2002, to show that Ac.0.02 cents is in possession andpossession and enjoyment of the Sivaleela, gifted by her father under Ex.B2. Ex.B3 filedenjoyment by the defendant shows the eastern boundary as the site belongs to
Sivaleela towards eastern side and Ex.C1 to Ex.C3 filed by Advocate
Commissioner also shows that Ac.0.02 cents is in possession andpossession and enjoyment of Sivaleela.enjoyment 21 O.S.No. 37 of 2011 Dt:18.04.2023
41. As per Ex.B1 and Ex.B2, the daughter of defendant Muvvala
Madhavi got Ac.0.02 cents of site under Ex.B1, but as per Ex.C1 to
Ex.C3 and from the report filed by the Advocate Commissioner, it shows that the said Madhavi is in possession and enjoymentpossession and enjoyment of Ac.0.02 ¼ cents. Ex.C1 to Ex.C3 shows that, there is a vacant site to an extent of
Ac.0.0 ¾ cents towards eastern side of Ac.0.02 cents of site which belongs to Sivaleela, which is vacant, but the report filed by the
Advocate Commissioner does not show in whose possession the said vacant site is in. The same was not elicited from the cross-examination of PW4/ Advocate Commissioner. It is the case of the defendant herself that the site towards eastern side of Sivaleela belongs to the plaintiff site. So, the site which is to an extent of Ac.0.0 ¾ cents as shown under
Ex.C1 to Ex.C3 belongs to the plaintiffs.
42.Though, the plaintiffs shown the suit schedule propertysuit schedule property as Ac.0.06 ½ cents , but they paid Court Fee separately for Ac.0.05 cents and
Ac.0.01 ½ cents of schedule propertyschedule property. The boundaries for the entire
Ac.0.06 ½ cents of suit propertysuit property were shown in plaint schedule. The plaintiffs did not mentioned separate boundaries for Ac.0.05 cents and for Ac.0.01 ½ cents which is situated in S.No. 125/1 & S.No. 126/1 of
Kothapeta Village. The plaintiffs filed this suit for declaration of suitsuit schedule property, for grant of Permanent Injunctionschedule propertyPermanent Injunction restraining the defendant and others from making any alternations or constructions in suit property and also for grant of Permanent Injunctionsuit propertyPermanent Injunction directing the defendant to remove the shed from suit schedule site i.e., in respect of
Ac.0.06 ½ cents of site, but the plaintiffs paid Court Fee for each relief in respect of Ac.0.05 cents separately and in respect of Ac.0.01 ½ cents separately, without showing any specific boundaries for Ac.0.05 cents and for Ac.0.01 ½ cents and by showing common boundaries to the entire extent of Ac.0.06 ½ cents.
22 O.S.No. 37 of 2011 Dt:18.04.2023
43.Though the case of the plaintiffs shows that the suit schedulesuit schedule property to an extent of Ac.0.06 ½ cents is in S.No. 125/1, 126/1 ofproperty
Kothapet Village, but the report and sketch filed by the Advocate
Commissioner and Mandal Surveyor of Chirala under Ex.C1 to Ex.C3 clearly shows that the suit schedule propertysuit schedule property is situated in S.No. 125/1, but not in S.No. 126/1. Though the counsel for the plaintiffs argued that the report and sketch filed by the Advocate Commissioner under
Ex.C1 to Ex.C3 are false and it is only a paper work without observing the physical features on ground, but the same was not elicited at the time of cross-examination of Advocate Commissioner /PW4 and so also, the plaintiffs did not choose to file objections on the report filed by the
Advocate Commissioner.
44.The counsel for the plaintiffs argued that the settled law that boundaries will prevail over survey number and extent, is not applicable to the present case and the plaintiffs property is situated in S.No. 125/1 and whereas the defendants property is situated in S.No. 126/1 and the plaintiffs are in possession and enjoymentpossession and enjoyment of Ac.0.05 cents of suitsuit property and relied upon G. Penchalaiah and others Vs. Chinnaiahproperty and others reported in 2017 (4) ALT 523.
45.This is a suit filed by the plaintiffs to declare them as absolute owners of suit schedule propertyschedule property to an extent of Ac.0.05 cents and
Ac.0.01 ½ cents i.e., in total Ac.0.06 ½ cents. The burden is heavily upon the plaintiffs to establish their case that they are the absolute owners of Ac.0.06 ½ cents. The burden is heavily upon the plaintiffs to establish their case that the plaintiffs No.1 and 2 are absolute owners of suit property to an extent of Ac..05 cents and Ac.0.01 ½ cents and insuit property order to establish the same, they got marked Ex.A6, Ex.A1, Ex.A2,
Ex.A3 and Ex.A4 on their behalf, but the documentary evidence adduced by the defendants under Ex.B4, Ex.B5 and Ex.B3 shows the 23 O.S.No. 37 of 2011 Dt:18.04.2023 flow of title of defendants in respect of Ac.0.04 cents in S.No. 126/1 of
Kothapeta Village. Ex.B1 to Ex.B3 filed by the defendants shows that they are in possession and enjoymentpossession and enjoyment of Ac.0.04 cents in S.No. 126/1 of
Kothapeta Village from 02.02.1989. There is a clear admission made by
PW1 regarding possession and enjoymentpossession and enjoyment of defendant in the property covered under Registered Gift Deed under Ex.B1. The property covered under Ex.B1 is an extent of Ac.0.02 cents in S.No. 126 with boundaries East: site of Desi Sivaleela, South: site of Nellippudi
Brahmam (2nd plaintiff), West: land of Vattigunta Veera Reddy, North:
Papaipalem Road. So also, the report and sketch filed by Advocate
Commissioner /PW4 and Mandal Surveyor of Chirala under Ex.C1 to
Ex.C3 shows the possession and enjoymentpossession and enjoyment of the Muvvala Madhavi (daughter of defendant) in respect of Ac.0.02 ¼ cents, Sivaleela in possession and enjoyment of Ac.0.02 cents of site in S.No. 125/1 ofpossession and enjoyment
Kothapeta Village. Though the counsel for the plaintiffs argued that the report filed by the Advocate Commissioner and the sketch given by
Mandal Surveyor, Chirala under Ex.C1 to Ex.C3 are only paper work without actual observing the physical possession on ground, but the same was not elicited at the time of cross-examination of PW4.
46.It is pertinent to mention here that, after filing of Ex.C1 to Ex.C3 by the Advocate Commissioner/PW4, the plaintiffs filed an application in
I.A.No. 1260/19 under Order XXIII Rule 1 of CPC, by mentioning that the Advocate Commissioner in his report mentioned that Ac.0.05 cents is situated in S.No. 125/1 and remaining extent of Ac.0.01 ½ cents of site was not traced. Basing on the report given by the Advocate
Commissioner , he filed a suit in O.S.No. 67/2018 on the file of Prl.Prl.
Junior Civil Judge’s Court, Chirala claiming Ac.0.01 ½ cents against oneJunior Civil Judge’s Court, Chirala
Kota Saibabu, since the land to an extent of Ac.0.01 ½ cents is not relating to the defendant and so, the plaintiffs filed the said application 24 O.S.No. 37 of 2011 Dt:18.04.2023 to permit them to withdraw the claim of Ac.0.01 ½ cents against defendant herein. On merits, the said application was allowed on 08.03.2022. So, it clearly shows that the plaintiffs themselves withdraw to an extent of Ac.0.01 ½ cents out of Ac.0.06 ½ cents of suitsuit schedule property.schedule property
47.It is the case of the plaintiffs that the defendant is in illegal occupation of Ac.0.06 ½ cents of suit propertysuit property. It was mentioned by the plaintiffs that the defendant approached them and expressed willingness to purchase suit schedule propertysuit schedule property and requested the plaintiffs for erecting thatched shed. The plaintiffs permitted the defendant for her residence, but the defendant made postponement to purchase suit property from plaintiffs and she is in illegal occupation of the same, inspite of repeated demands made by them, the defendant refused to remove the structures and to vacate the suit schedulesuit schedule property. The burden is heavily upon the plaintiffs to establish that theproperty defendant offered to purchase suit schedule propertysuit schedule property to an extent of
Ac.0.06 ½ cents. The burden also upon the plaintiffs to establish that the defendant though took permission from them and raised thatched hut, but subsequently inspite of repeated demands made by them, the defendant refused to vacate the suit premises. In support of the same, the plaintiffs did not examined any witnesses on their behalf. Though,
PW2 and PW3 were examined they did not depose anything about permitting the defendant by the plaintiffs to reside in suit schedulesuit schedule property. More over, the documents filed by the defendant under Ex.B1property to Ex.B3 shows that there is a thatched hut in Ac.0.04 cents of site which was constructed by the deceased Sambasiva Rao, after purchasing the said property under Ex.B3. The defendant got examined
DW3 who is a Mason for construction of the house and he deposed that, he constructed the said house in the instructions of deceased 25 O.S.No. 37 of 2011 Dt:18.04.2023
Sambasiva Rao. Though the counsel for the plaintiff cross-examined
DW1 to DW3 nothing was elicited from them in support of their case.
Though the plaintiffs got examined PW1 to PW4 and got marked Ex.A1 to Ex.A6, but completely failed to establish their case that they are the absolute owners of suit schedule propertysuit schedule property. So, the plaintiffs miserably failed to establish their right and title over suit schedule propertysuit schedule property.
Accordingly, this Issue is not answered in favour of the
plaintiffs.
ISSUES No.2 to 4:
48.It is the case of the plaintiffs that, the suit schedule propertysuit schedule property is in illegal occupation of the defendant though the plaintiffs No.1 & 2 are the absolute owners of suit schedule propertysuit schedule property. The defendant is trying to grab the suit schedule propertysuit schedule property from plaintiffs with the help of her nephew Desi Srinu. Though the plaintiffs requested the defendant to vacate the suit schedule premises, but the defendant did not come forward to do so. Though, the plaintiffs requested the defendant to purchase suit propertysuit property and for that also the defendant did not come forward and more over, made several attempts to grab the suit property, with the help of Desi Srinu. The defendant and Desi Srinu also tried to change the Revenue Panchayat Records in respect of suitsuit property. Inspite of repeated demands made by the plaintiffs, theproperty defendant did not vacated the property, but in turn raised another shed with political support and now the defendant is also making attempts to raise constructions in suit propertysuit property. The plaintiffs in support of their case, did not adduce any evidence to show that the defendant is trying to raise constructions in suit propertysuit property and also in support of his case that the defendant raised another shed in suit property. Except the pleadings of the plaintiffs, no evidence either orally or documentary were placed before this Court by the plaintiffs in support of their case.
Though the plaintiffs got examined PW2 and PW3, they did not deposed 26 O.S.No. 37 of 2011 Dt:18.04.2023 anything about the raising of sheds or any constructions in suitsuit property by the defendant. More over, the plaintiffs did not adducedproperty any evidence to show that one Desi Srinu who is nephew of defendant is helping to them to grab the suit propertysuit property and also they are trying to change the Panchayat Records in respect of suit propertysuit property, but in support of the same, no evidence was adduced by the plaintiffs.
49.The plaintiffs filed this suit for grant of Permanent InjunctionPermanent Injunction restraining the defendant and also their men from not making any alienation or constructions in suit propertysuit property and also for grant of
Mandatory Injunction, directing the defendant to remove the sheds from suit schedule site. The burden is heavily upon the plaintiffs to establish that the defendant is making serious attempts to make alterations or constructions in suit schedule propertysuit schedule property. No evidence was adduced by the plaintiff to that effect. More over, the plaintiffs completely failed to establish their right over suit schedule propertyschedule property and completely failed to establish that they are the absolute owners of suit schedule property to seek Mandatory Injunction in respect of thesuit schedule property to seek Mandatory Injunction in respect of the same. Hence, the plaintiffs completely failed to establish that they aresame.
entitled for grant of Permanent InjunctionPermanent Injunction and Mandatory Injunction as prayed for. So also, the plaintiffs completely failed to establish that they are entitled for delivery of vacant possession of suit schedulesuit schedule property from the possession of defendant.property
Accordingly, these Issues are not answered in favour of the
plaintiffs.
ISSUE No.5:
50. 50.In the result, the suit is dismissed without costsIn the result, the suit is dismissed without costs. .
Dictated to the Personal Assistant, transcribed by her, correctedDictated to the Personal Assistant, transcribed by her, corrected
and pronounced by me, in Open Court, this the 18and pronounced by me, in Open Court, this the 18 th th day of April, day of April, 2023. 2023.
SENIOR CIVIL JUDGE, SENIOR CIVIL JUDGE,
CHIRALA. CHIRALA.
27 O.S.No. 37 of 2011 Dt:18.04.2023
// APPENDIX OF EVIDENCE //
Witnesses Examined
For Plaintiff For Defendant
PW.1: Nellipudi Veera BrahmamDW.1: Muvvala Sujatha PW.2: Akurathi Bhaskara PrasadDW.2: Chintalapudi Venkaiah PW.3: Teku Appala NarasammaDW.3: Mannem Poleswara Rao PW.4: A. Subba Reddy
DOCUMENTS MARKED
For Plaintiff:
Ex.A1:Registered sale deed dated 18.11.1980Registered sale deed Ex.A2:Certified copy of Gift Deed dated 24.06.2003Certified copy of Ex.A3:Registered Will dated 24.06.2003 Ex.A4:Certified copy of Registered sale deedCertified copy ofRegistered sale deed dated 04.05.2006 (Ex.A2 to Ex.A4 are marked subject to objection) Ex.A5:Death Certificate of N. gangarajamma Ex.A6:Registered sale deed dated 09.12.1976 executed by KotaRegistered sale deed Satyanarayana in favour of Gollaprolu Rangaiah.
For Defendant: For Defendant:
Ex.B1:Registered Gift Deed dated 26.02.2004 stands in favour of Defendant’s daughter Madhavi. Ex.B2:Registered Gift Deed dated 10.10.2003 stands in favour of Suneetha Lakshmi executed by Samba Siva Rao Muvvala. Ex.B3:Registered Sale Deed dated 02.02.1989 stands in favour of Muvvala Samba Siva Rao, Ex.B4:Certified copy of Registered sale deedCertified copy ofRegistered sale deed dated 14.03.1947 stands in the name of Subbaiah and Peravalli Chenchu Punnaiah. Ex.B5:Certified copy of Registered Partition Deed dated 04.04.1996Certified copy of in between Chinthalapudi Subbaiah and Peravalli Chenchu Punnaiah.
Through Advocate Commissioner :
Ex.C1 :Advocate Commissioner Report dated 03.10.2017 Ex.C2:Advocate Commissioner Rough SketchRough Sketch dated 19.08.2017 Ex.C3:Sketch of Mandal Surveyor, Vetapalem dated 19.08.2017.
S.C.J., Chirala. S.C.J., Chirala.
28 O.S.No. 37 of 2011 Dt:18.04.2023
IN THE COURT OF THE SENIOR CIVIL JUDGE AT CHIRALA.
Present : Smt M.Shubhavani,Present : Smt M.Shubhavani,
Senior Civil Judge, ChiralaSenior Civil Judge, Chirala
Tuesday, this the 18 th Tuesday, this the 18 th day of April, 2023 day of April, 2023
O.S.No. 37 of 2011 O.S.No. 37 of 2011
Between: Between:
1. Nellipudi Ganga Rajamma (Died), W/o. Late Venkata Rao,1. Nellipudi Ganga Rajamma (Died), W/o. Late Venkata Rao, Aged 85 years, Hindu, Dependent,Aged 85 years, Hindu, Dependent, R/o. D.No. 20-4-33, Kasulamara Street, Chirala.R/o. D.No. 20-4-33, Kasulamara Street, Chirala.
2. Nellipudi Veera Brahmam, S/o. Venkata Rao,2. Nellipudi Veera Brahmam, S/o. Venkata Rao, Aged 60 years, Hindu,Aged 60 years, Hindu, R/o. D.No. 20-4-33, Kasulamara Street, Chirala. R/o. D.No. 20-4-33, Kasulamara Street, Chirala. … .Plaintiffs … .Plaintiffs
V/s V/s
Muvvala Sujatha, W/o. Sambasiva Rao,Muvvala Sujatha, W/o. Sambasiva Rao, Aged 55 years, Hindu,Aged 55 years, Hindu, R/o. Gopal Nagar, Kothapeta Village & Post, Vetapalem Mandal,R/o. Gopal Nagar, Kothapeta Village & Post, Vetapalem Mandal, Prakasam District. . Prakasam District
… ..Defendant … ..Defendant
This is a suit filed for declaration that the plaintiffs are theThis is a suit filed for declaration that the plaintiffs are the absolute owners of the plaint schedule site Ac.0.05 cents and Ac.0.01 ½absolute owners of the plaint schedule site Ac.0.05 cents and Ac.0.01 ½ cents respectively, for possession of the plaint schedule site an extent ofcents respectively, for possession of the plaint schedule site an extent of Ac.0.06 ½ cents which is within the illegal occupation of the defendantAc.0.06 ½ cents which is within the illegal occupation of the defendant and put the plaintiffs into possession without any objections forand put the plaintiffs into possession without any objections for mandatory injunction directing the defendant to remove the sheds frommandatory injunction directing the defendant to remove the sheds from the suit schedule site, for Permanent Injunctionthe suit schedule site, for Permanent Injunction restraining the restraining the defendant and her men from not making any alternations ordefendant and her men from not making any alternations or constructions in the plaint schedule site and for costs. constructions in the plaint schedule site and for costs.
Plaint presented on 25.03.2011 and filed on 25.03.2011Plaint presented on 25.03.2011 and filed on 25.03.2011
Cause of action: Cause of action: Cause of action for the suit arose on when the 1Cause of action for the suit arose on when the 1stst plaintiff plaintiff purchased an extent of Ac.0.20 cents vacant site in S.No. 125/1 and 126/1 ofpurchased an extent of Ac.0.20 cents vacant site in S.No. 125/1 and 126/1 of Kothapeta Village under a Registered sale deedKothapeta Village under a Registered sale deed on 18.11.1980, when the 1 on 18.11.1980, when the 1stst plaintiff gifted an extent of Ac.0.15 cents out of Ac.0.20 cents to the 2ndplaintiff gifted an extent of Ac.0.15 cents out of Ac.0.20 cents to the 2nd plaintiff plaintiff under a Registered Gift Deed dated 24.06.2003, when the 2ndunder a Registered Gift Deed dated 24.06.2003, when the 2nd plaintiff sold away plaintiff sold away an extent of Ac.0.13 ½ cents to third parties on 04.05.2006 under a Registeredan extent of Ac.0.13 ½ cents to third parties on 04.05.2006 under a Registered sale deed when the remaining site an extent of Ac.0.06 ½ cents of the plaintiffssale deed when the remaining site an extent of Ac.0.06 ½ cents of the plaintiffs which is plaint schedule propertywhich is plaint schedule property is existed, when the defendant approached the is existed, when the defendant approached the plaintiffs and offered the plaintiffs for purchase of the plaint schedule propertyplaintiffs and offered the plaintiffs for purchase of the plaint schedule property,, when the defendant requested the plaintiff for erecting thatched shed in the plaintwhen the defendant requested the plaintiff for erecting thatched shed in the plaint schedule property believed the sweet words of the defendant and accepted theschedule property believed the sweet words of the defendant and accepted the offer by the defendant, when the defendant is postponing to purchase the plaintoffer by the defendant, when the defendant is postponing to purchase the plaint schedule property from the plaintiffs, when the plaintiffs came to know about theschedule property from the plaintiffs, when the plaintiffs came to know about the illegal and threatened actions of the defendant and so trying for tamper theillegal and threatened actions of the defendant and so trying for tamper the revenue and Panchayat records of the plaintiffs plaint schedule propertyrevenue and Panchayat records of the plaintiffs plaint schedule property, when, when the defendant with malafide intention in collusion with her nephew Desi Srinu,the defendant with malafide intention in collusion with her nephew Desi Srinu, when the 2ndwhen the 2nd plaintiff requested the defendant by himself and through others plaintiff requested the defendant by himself and through others either to purchase or to vacate the plaint schedule property, when the defendanteither to purchase or to vacate the plaint schedule property, when the defendant refused to vacate the premises, when the defendant refuse to remove therefused to vacate the premises, when the defendant refuse to remove the 29 O.S.No. 37 of 2011 Dt:18.04.2023 structures therein in the plaint schedule property, when the 1ststructures therein in the plaint schedule property, when the 1st plaintiff executed a plaintiff executed a Registered Will in favour of 2ndRegistered Will in favour of 2nd plaintiff on 24.06.2003, when the 1 plaintiff on 24.06.2003, when the 1stst plaintiff died plaintiff died on 12.11.2011, where the plaintiffs and defendants are residing in Chirala andon 12.11.2011, where the plaintiffs and defendants are residing in Chirala and Kothapeta Village and where the plaint schedule propertyKothapeta Village and where the plaint schedule property is situated at Kothapeta is situated at Kothapeta Village which is within the jurisdiction of this court.Village which is within the jurisdiction of this court.
Valuation: For the purpose of Declaration and for possession of theValuation: For the purpose of Declaration and for possession of the plaint schedule property the market value of the 1plaint schedule property the market value of the 1stst plaintiff’s Ac.0.05 plaintiff’s Ac.0.05 cents is Rs. 2,23,384/-, 3/ 4thcents is Rs. 2,23,384/-, 3/ 4th of the market value is Rs.1,67,538/-, on of the market value is Rs.1,67,538/-, on which Court Fee of Rs.4126/-.which Court Fee of Rs.4126/-.
22ndnd plaintiff’s Ac.0.01 ½ cents is Rs. 67,015/-, 3/ 4 plaintiff’s Ac.0.01 ½ cents is Rs. 67,015/-, 3/ 4thth of the market of the market value is Rs.50,261/-, on which Court Fee of Rs.2466/- under Sec. 24(a)value is Rs.50,261/-, on which Court Fee of Rs.2466/- under Sec. 24(a) of APCF & SV Act.of APCF & SV Act.
For Mandatory Injunction the 1stFor Mandatory Injunction the 1st plaintiff’s Ac.0.05 cents is plaintiff’s Ac.0.05 cents is notionally valued at Rs.5000/- on which Court Fee of Rs.411/- is paid.notionally valued at Rs.5000/- on which Court Fee of Rs.411/- is paid.
For Mandatory Injunction the 2ndFor Mandatory Injunction the 2nd Plaintiff’s Ac.0.01 ½ cents is Plaintiff’s Ac.0.01 ½ cents is notionally valued at Rs.5000/- on which Court Fee of Rs.411/- is paid.notionally valued at Rs.5000/- on which Court Fee of Rs.411/- is paid.
For Permanent InjunctionFor Permanent Injunction the 1 the 1stst plaintiff’s Ac.0.05 cents is plaintiff’s Ac.0.05 cents is notionally valued at Rs.5000/- on which a Court Fee of Rs.411/- is paidnotionally valued at Rs.5000/- on which a Court Fee of Rs.411/- is paid under Sec. 26(c) of APCf & SV Act.under Sec. 26(c) of APCf & SV Act.
For Permanent InjunctionFor Permanent Injunction the 2 the 2ndnd plaintiff’s Ac.0.01 ½ cents is plaintiff’s Ac.0.01 ½ cents is notionally valued at Rs.5000/- on which a Court Fee of Rs.411/- is paidnotionally valued at Rs.5000/- on which a Court Fee of Rs.411/- is paid under Sec. 26(c) of APCf & SV Act.under Sec. 26(c) of APCf & SV Act.
Total jurisdiction of the suit is valued at Rs.2,37,799/- on which aTotal jurisdiction of the suit is valued at Rs.2,37,799/- on which a court fee of Rs. 8236/- is paid.court fee of Rs. 8236/- is paid.
This suit is presented before me today i.e., on 24.03.2023, forThis suit is presented before me today i.e., on 24.03.2023, for Judgment, in the presence of Sri. G. Mallikarjuna Rao, &Judgment, in the presence of Sri. G. Mallikarjuna Rao, & K. SeshagiriraoAdvocate for the Plaintiff, and of K. SeshagiriraoAdvocate for the Plaintiff, and of Sri. B. Hemantha Sri. B. Hemantha Kumar, Advocate for the Defendant, upon perusing the oral andKumar, Advocate for the Defendant, upon perusing the oral and documentary evidence on record, upon hearing the arguments on bothdocumentary evidence on record, upon hearing the arguments on both sides and having stood over for consideration till this day, this Courtsides and having stood over for consideration till this day, this Court doth order and decree:doth order and decree:
i. That the suit be and the same is hereby
dismissed; and and
ii. That each party do bear their own costs.
Cost of plaintiff : Rs. 20,858/-
Cost of Defendant: Rs. NIL (CM & FC not filed).
(Plaint schedule attached herewith)
Given under my hand and seal of this court, this the 18Given under my hand and seal of this court, this the 18 th th day of April, 2023. day of April, 2023.
Senior Civil Judge, Senior Civil Judge,
Chirala. Chirala.
30 O.S.No. 37 of 2011 Dt:18.04.2023
TABLE OF COSTS TABLE OF COSTS
For PlaintiffFor Defendant Stamp on Vakalath2-00 Stamp on Plaint 8236-00CM & FC not filed Stamp on petition10-00 Stamp on Documents 10-00 Process200-00 Commissioner Fee3000-00 Advocate fee9000-00 (As prayed for) Type charges200-00 Writing charges200-00
Total20,858-00 NIL
S.C.J., Chirala. S.C.J., Chirala.
NOTE:- The parties should apply as soon as possible for the return of allNOTE:- The parties should apply as soon as possible for the return of all the exhibits, which they may wish to preserve, as the record will bethe exhibits, which they may wish to preserve, as the record will be liable to destroy after the stipulated period from this date.liable to destroy after the stipulated period from this date.