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IN THE COURT OF ADDITIONAL. JUNIOR CIVIL JUDGE ::
PITHAPURAM
PRESENT:-Kum.M.Vijaya Rameswari
Principal Junior Civil Judge-cum-Judicial Magistrate of First Class,
(FAC) Additional Junior Civil Judge-cum-Judicial Magistrate of First Class, Pithapuram.
Friday, the 10 th day of October, 2025
O.S.No.19/2014
Between: Yepu Ramulu, S/o.Appala Swamy, Aged 66 years, Agricultural Coolie, D.No.7-203/1, Kothapeta (Ramayyammarao Peta), Gollaprolu, Gollaprolu Mandal, Pithapuram JCJ Court Limits.
..Plaintiff
And
1.Amjuri Appa Rao, S/o.Ramulu, Aged 55 years, Business, D.No.7-202, Kothapeta (Ramayyammarao Peta), Gollaprplu, Gollaprolu Mandal, Pithapuram JCJ Court Limits.
2.Amjuri China Ram Babu, S/o.Apparao, Aged 35 years, Business, D.No.7- 202, Kothapeta (Ramayyammarao Peta), Gollaprolu, Gollaprolu Mandal, Pithapuram JCJ Court Limits.
3.Amjoori Krishna Veni, W/o.Rambabu, Aged 32 years, Housewife, D.No.7- 202, Kothapeta (Ramayyammarao Peta), Gollaprolu, Gollaprolu Mandal, Pithapuram JCJ Court Limits.
4.Gundarapu Durga, W/o.Seetaranaswamy, Aged 40 years, Housewife, Kothapeta, Gollaprolu.
5.Amjuri Ganiyya, S/o.Apparao, Aged 38 years, Business, Kothapeta, Gollaprolu.
6.Kaki Lova, W/o.Nookaraju, Aged 35 years, Housewife, Yetivara, Payakaraopeta, Visakha District.
7.Poturaju Ammani, W/o.Baburao, Aged 33 years, House wife, Eye Hospital, Anaparthi, Ramchandrapuram JCJ Limits.
2 8.Seeram Venkata Lakshmi, W/o.Markandeyulu, Aged 32 years, Housewife, Near Market, Narsipatnam.
(Defendant No.3 added as per orders in I.A.229/2019 dated 16.10.2019) (Defendant Nos.4 to 8 are added as per orders in I.A.224/2021 dated 25.10.2021 being the legal heirs of Defendant No.1).
.. Defendants
This suit is coming before me on 08.10.2025 for arguments in the presence of Sri S.M.Ali, Advocate for the Plaintiff and Sri V.V.V.S.N.Murthy, Advocate for defendant Nos.2 to 5, Defendant No.1 died and Defendant Nos.6 to 8 called absent. And set exparte and the matter having stood over for consideration till this day, this Court the following:
J U D G M E N T
1.The suit is filed by the plaintiff for declaration that he is the absolute owner of the sites described in the plaint B schedule Item Nos.1 and 2 shown as “A E F G C D” in the plaint plan and to direct the defendants to vacate from respective sites and put the same in possession of the plaintiff after demolishing the constructions i.e., gate at point “A E”; Walls at “E E1” & “FF1”, lavatory tank, lavatory bathrooms “BL:; well “W”; compound wall at “F G” and portico projected into the plaintiff’s site made therein failing which to get them through process of law and grant permanent injunction of the plaint B schedule 29 square yards site shown as “A E F G C D” in plaint plan restraining and their men from ever interfering with the peaceful possession and enjoyment of the same after giving possession to the plaintiff, costs of the suit and such other reliefs deems fit and proper in the circumstances of the suit.
2.The brief averments of the plaint:
(a) The plaintiff and his brother Yepu Venkata Rao are the owners and possessors of the site an extent of 152 square yards after demolition of
Thatched house having old D.No.1-66 of Gollaprolu Village, Gollaprolu 3 mandal and the said property was their ancestral property. On 10.03.2004 the brother of the plaintiff viz., Yepu Venkatarao executed a registered gift deed vide Document No.401/2004 dated 10.03.2004 at Sub-Registrar’s
Office, Pithapuram bequeathing his undivided half share to the plaintiff and thus the plaintiff acquired right, title and possession of the entire property an extent of 152 square yards of site and constructed a house therein more vividly described in the plaint “A” schedule property which is shown as “A B
C D” in the plaint sketch.
(b) The plaintiff submits that the defendants are having houses on the
Southern side an extent of 168 square yards of site, one Kurru Apparao is having house on the Western side of the plaint A schedule property there are public path ways. The plaintiff started construction of a Daba house in the said site of him after obtained a registered gift deed from his brother in the year 2004 and the plaintiff started construction of daba house by leaving 1 ½ yards width site on the Western side in between the Wall AD of Kurru
Apparao and his house for the purpose of making repairs and white washing the Western side house wall to be constructed. The plaintiff is also leaving site on other three sides for his convenient and the first defendant who executed a registered gift deed dated 16.07.2001 in favour of his another son by name Amjuri Ganne Rao for an extent of 98 square yards of the site towards Eastern side of his site of 168 square yards having no path way to reach the Raja Veedhi on the Eastern side and Northern side, having illegal thoughts and taking advantage of weakness of the plaintiff and his family members to grab the site of 1 ½ yards width left by the plaintiff in between his western side house wall and Kurru Apparao’s wall, the 1st defendant filed
O.S.133/2005 on the file of Junior Civil Judge Court, Pithapuram for
mandatory injunction against the plaintiff and three others who are his family members to remove the constructions made in the 1 ½ yards wide path way 4 leading from his house to the public road alleging that there is 1 ½ yards wide path way leading from his house to the public road alleging that there is 1 ½ yards width path way and that this plaintiff and his family members started construction by encroaching into the said pat way.
(c) The plaintiff submits that in the said suit 1st defendant obtained interim orders against the plaintiff and his family members restraining them from proceed further construction, having obeyed the orders of the
Honourable Court this plaintiff and his family members stopped further
constructions. During the pendency of the suit O.S.133/2005 and taking advantage of interim orders in his favour, the 1st defendant herein highhandedly encroached into B schedule property Item No.1 shown as “AEFD” in plaint sketch and put up a GATE at point “AE” and constructed walls at “E E1” and “FF1” and restrained the plaintiff and his family members not to enter into the 1 ½ yards site left by the plaintiff on the Western side of his site for their use, in view of pendency of interim orders against the them, the plaintiff and his family members kept quite looking the illegal acts of the defendants.
(d) The plaintiff submits that the suit OS.133/2005 was dismissed for default on 24.02.2011, but the plaintiff/ 1st defendant filed a petition and got it restore on file, but even after restoration of the suit the plaintiff / 1st defendant did not appear before the Honourable Court and hence the
Honourable Junior Civil Judge, Pithapuram holding that “it appears that the
plaintiff is not interested in prosecuting the case and hence the suit is dismissed for default on 07.12.2011”. The plaintiff submits that after dismissal of the suit he started further constructions and completed his daba house and the gram panchayat Gllaprolu also imposed house tax to the plaintiff;s house. While the plaintiff making efforts to construct the compound wall on the Western side in between his site and defendant’s site, the 5 defendants high handedly encroached into the plaintiff’s site on the
Southern side and started construction of lavatory tank, lavatory and bathrooms and to dig a well and also projecting the portico into the said said site which is shown as plaint B schedule item No.2 as shown “FGCD” in plaint sketch.
(e) The plaintiff disputed the illegal acts of the defendants before village elders but they were not able to persuade the defendants to stop their illegal attempts, as the defendants openly proclaiming that they will do what can they do and do the plaintiff what can be can do. On that the son of the plaintiff gave a complaint to Gollaprolu police on 23.03.2013 but the police issued a receipt on 28.03.2013 as if it is given on that day by correcting the date as 28.03.2013 in view of the management of the defendants to complete their construction of lavatory tank, bathrooms to dig a well and projecting portico into the occupied site, thus the defendants constructed a bathroom, lavatory tank “ B & L” and dig a well “W” as shown in the plaint sketch by working day and night and the defendants have also constructed a compound wall beyond the encroached site at “EG” shown in plaint sketch in plaintiff’s site, even though the police gave receipt dated 28.03.2013 to the son of the plaintiff, they did not registered the case and did not take any action against the defendants, finally police expressed their inability by saying that it is a civil dispute in view of the influence of the defendants and their political leaders.
(f) The plaintiff submits that defendants have wrongfully and unlawfully entered into the possession of the site on the Western and southern side shown in B schedule which is part of the plaint A schedule property against the will of the plaintiff, the defendants have no manner of right, title or interest in respective sites on Western site and southern side of the plaint A schedule property occupied by them by dispossessing of the 6 plaintiff from the said sites and the registered mortgage deed dated 15.06.1970 executed in between Kurru Adiraju and other and Vbyoina
Satyam and others with regard to the Western side property of the plaint schedule property clearly discloses that the Eastern boundary is the Yiyyapu
Venkatarao and others house and the said document clearly discloses that tehre is no 1 ½ yards width way as alleged by the 1st defendant in the suit
O.S.133/2005.
(g) The plaintiff submits that defendant has no manner of right, title to encroach the respective sites shown in B schedule of the plaintiff and the defendants are high handed persons and they have got political back ground, The plaintiff submits that subsequent to filing of the suit the plaintiff came to know that the 3rd defendant purchased the property as per the sale deed dated 17.03.2011 from the 1st defendant along with the FGCD property which was belongs to the plaintiff and the plaintiff submits that the 1st defendant is not having any right to sell the FGCD plaint plan portion to the 3rd defendant and the 3rd defendant will not get any right, title on the FGCD plaint plaint portion property and the plaintiff is the owner of the FGCD property, hence the 3rd defendant is added as party in the suit and the 3rd defendant is not having any right, title in the FGCD property and the sale deed dated 17.03.2011 will not be binding on the plaintiff as the defendants colluded together and got executed the collusion and document
No.17.03.2001. Subsequent to the filing of h suit, the 1st defendant died intestate on 29.10.2020 leaving behind the other defendants 4 to 8 as his other legal heirs and hence the plaintiff is entitled to ask the prayer which was mentioned in the plaint prayer portion against the defendants 4 to 8.
Hence the suit.
3.The defendant No.2 filed written statement and the same was adopted by defendant No.1. Defendant No.4 and 5 also adopted the written 7 statement filed by Defendant No.2. The defendants filed written statement denying the material averments of the plaint para wise and submits that the suit is not maintainable either in law or on facts. The defendants submits that plaintiff and his brother Yepu Venkata Rao are not the full and absolute owners and possessors of the site alleged to be their ancestral property, their sister and after her death her legal heirs are also have a share in the same and this is a suit for declaration of ownership and hence the suit suffers from the nonjoinder of the necessary parties. It is submitted that the gift deed of the plaintiff vide document No.401/2004 is ab initio null and void in law and the plaintiff and his brother cannot partition the property and give it as gift deed between themselves without including their sister or her legal heirs as parties, as such the plaintiff does not acquire right, title and possession of the property and the the measurements shown in Document
No.401/2004 does not reflect on ground reality and those measurements were given just to suit their convenience and false claims and falsely claimed that it is the property acquired by their father.
(b) It is submitted that the 1st defendant was having his house in a site admeasuring 168 square yards and originally through a sale deed vide
Document No.3129/1988, dated 30.11.1988, subsequently in the year 2001, he gifted away an extent of 98 square yards to his elder son namely
Gannerao vide Document No.1796/2001, dated 16.07.2011, subsequently in the year 2011, he executed a gift settlement deed in favour of his younger son i.e., 2nd defendant not only on the remaining correct extent of 72.24 square yards but also on 18 square yards of the path solely meant for his house by virtue of adverse title on the same against one Karru Adiraju. It is submitted that Kurru Apaprao is not having any house on the Western side of the plaint A schedule property the path solely meant for the defendants is on the Western side of the plaint “ A” schedule property.
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(c) It is submitted that the plaintiff never left 1 ½ yards width site in between the wall AD of Kurru Apparao and his house for the purpose of making repairs and white wash and the plaintiff always has the easement right to enter the properties of others for the purpose of repairs and white wash and the 1st defendant’s son to whom the 1st defendant gifted away a portion of the house, is having his own path on the Eastern side to reach
Rajaveedhi and the suit OS.133/2005 was got filed by the 1st defendant to get removed the obstructions in the 1 ½ yards wide pathway solely meant for him as per the document No.3129/1988 dated 30.11.1988 and the gate at points “AE” the wall at “EE1” and “FF1” were constructed even before filing the said suit No.133/2005 and there were no illegal acts at all on the part of the defendant.
(d) it is submitted that the 1st defendant could not attend the court in
OS.133/2005 on 07.12.2011 because he was suffering from paralysis,
diabetes and high blood pressure, moreover the elders in the street had already made a compromise between the 1st defendant and plaintiff’s people, as per the terms of the said compromise, the 1st defendant herein would not insist on the removal of obstructions in his pathway and the plaintiff herein would abandon his claim on the said pathway and would finish the house constructions and accordingly plaintiff completed his house construction and now the plaintiff’s hands are free and so he has started another bout of litigation, throwing away the compromise to winds.
(e) It is submitted that in the “FGCD” portion of the sketch, the lavatory, lavatory tank, bath room, well and portico and compound wall were constructed without any encroachment, and the police complaint given by the plaintiff is only nominal with a view to prepare a basis for this suit and moreover, the said “FGCD” portion in the plaint sketch belongs to Amjoori
Krishnaveni and the suit is bad for non joinder of necessary party. It is 9 further submitted that the defendants have not indulged in any kind of encroachment over the plaintiff’s property and Patnala Padalu, the vendor of the 1st defendant was having settled right of way as easement over the 1 ½ yards width and 36 feet long pathway shown as “AEFD” in the plaint sketch and the site used as the pathway solely to Patnala Padalu and his vendee i.e., the 1st defendant originally belongs to one Vayiboina family and the
Vayiboina family people became heavily indebted to one Kurru Adiraju, father of Kurru Apparao and so the property of Vayiboina family came into the hands of Kurru Adiraju, father of Kurru Apparao, then said Kurru Adiraju constructed a wall across the property of Vayiboina people, leaving aside the place site used as a pathway solely to Patnala Padalu i.e., the 1st defendant vendor.
(f) It is submitted that there is no cause of action and the plaintiff is not entitled for any relief and the measurements given in the plaint “A” schedule property are all cooked up and are absed on the plaintiff’s self serving gift deed and the plaintiff’s hands are not at all clean and he is not eligible for any equitable relief and prays to dismiss the suit with costs.
4.The 3rd defendant filed written statement denying the material averments of the plaint para wise and reiterated some of the averments made in the written statement of 2nd defendant. It is submitted that the extent and boundary measurements shown in the gift deed No.401/2004 dated 10.03.2004 are not true and correct and those false measurements were intended to enable themselves to make false claim against the defendants and it is also falsely claimed therein that it is the property acquired by their father, moreover the plaintiff has not furnished any documents to claim that the said property was acquired by their father, nor has he furnished any link documents. The pathway refered to in OS.133/2005 shown as AEFD in the plaint sketch in this suit.
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(b) It is submitted that the said FGCD was obtained by the 3rd defendant herein through a sale deed dated 17.03.2011 executed by one
Amjoori Gannerao, who got the said property through a gift deed
No.1796/2001, dated 16.07.2001 and the donor therein got the said property through a sale deed No.3129/1988 dated 30.11.1988 and thus the plaintiff’s claim of possession over the same is barred by limitation and these facts were known to the plaintiff herein through OS.133/2005 in which he was the 2nd defendant, inspite of this knowledge on the part of the plaintiff, he has chose to file this suit simply to harass the defendant. The plaintiff has not paid the court fee for seeking mandatory injunction of removing and demolishing constructions at AE, EE1, FF1 of the plaint sketch, lavatory tank, bathrooms, well, compound wall and portico. The plaintiff should have paid the court fee for permanent injunction over one half o the market value of the AEFGCD property because his title to the AEFD pathway there was denied even before filing of the suit by the plaintiff. The defendant prays to dismiss the suit with costs.
5.Based on pleadings of both the parties following issues are framed for trial:
1. Whether the plaintiff is the absolute owner of the site plaint B schedule item Nos.1 and 2 shown as “AEFGCD” in plaint plan?
2. Whether the plaintiff is entitled for declaration that he has absolute owner of the B schedule Item Nos.1 and 2 shown as “AEFGCD” in plaint plan?
3. Whether the defendants occupied the schedule land?
4. Whether the defendants are liable to vacate from the schedule land and hand over to the possession of plaintiff?
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5. Whether any constructions are made at Gate at point “AE” walls at “EE1” and “FF1” points, lavatory tank, bath rooms at “BL” point, well at “W” point, compound wall at “FG” point and portico project in the plaintiff’s sit?
6. Whether they are liable to be demolish by the defendants before handling over the schedule property, failing which whether the plaintiff is entitled to get them through process of law?
7. Whether the plaintiff is entitled for permanent injunction restraining the defendants from further interference with plaint B schedule 29 square yards of site shown in “AEFGCD” in plaint plan?
8. Whether the plaintiff is entitled for declaration and permanent injunction as prayed for?
9. To what relief?
Considering the additional pleadings the following additional issue is framed.
10.Whether the plaintiff is entitled to seek relief against the 3rd defendant for FCD portion of land?
6.(a) To prove the case of the plaintiff, P.Ws.1 to 3 examined and got marked Exs.A1 to A8. On behalf of defendants, D.Ws.1 to 4 examined and got marked Exs.B1 to B4.
7.Heard the both side and perused the record.
8.Issue no.1
Whether the plaintiff is absolute owner of the site plaint “B”
Schedule “item 1 and 2 shown as “AEFGCD” in plaint plan?
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A)Plaint “B” schedule property is in East Godavari, Pithapuram Sub- Division, Gollaprolu Mandal, Gollaprolu, Gram Panchayath, Appurtenant site to Door No. 7-230/1, house in an extent of 29 sq. yds., bounded by Site on west side of plaintiff’s house
EAST :Plaintiff’s house wall & site:36 SOUTH:House of Anjuri Gannayya – Now the defendant. 4.06 WEST :House of Kirnys Appa Rao : 38.00 NORTH:Raja Veedhi 4.06
ITEM II
Site on Southern side of Plaintiff’s site EAST :Raja Veedhi 2.09 SOUTH:House of Anjuri Gannayya – Now defendant. 29.00 WEST :Plaintiff’s site – 2.00 NORTH :Plaintiff’s site – 29.00
With the above boundaries of 2 items an extent of 29 sq. yds. Site within the occupancy of defendants.
9.To shore up the contention plaintiff is examined as PW1, by filing chief affidavit in lieu of examination-in-chief reiterating all material averments of the plaint.
10.On 10-03-2004, the brother of plaintiff Yepu Venkata Rao executed a
Registered Gift Deed vide Document No.401/2004 dated 10-03-2004 at
Sub-Registrar Office, Pithapuram; bequeathing his undivided half share to plaintiff. Thus plaintiff acquired right, title and possession of entire property to an extent of 152 sq. yds. Of site and constructed a house therein i.e., “A”
Schedule Property shown in “ABCD” in plaint sketch.
“B” – Schedule item 1 & 2 “AEFGCD” are part & parcel of “A” schedule of “ABCD”.
11.To substantiate the contention of plaintiff, he marked Ex. A1 i.e., registered Gift Deed dated 10-03-2004 executed by Yepu Venkata Rao 13
Schedule in Ex. A1 and Plaint A Schedule is same – but – door no. differed in Ex. A1. Door No. in Ex. A1 is 1-66 whereas door no. in Plaint “A”
Schedule is 7-203/1 but boundaries are tallied
Pw.1 stated in his evidence that he filed this suit against D1 to D3, seeking for possession of his land to an extent of 29 cents. He admitted that he had not filed any document prior to partition deed executed in between him and his brother to show that plaint schedule property is ancestral property. His parents blessed with 4 children 2 daughters namely Lakshmi, Veeraraju & 2 sons i.e., plaintiff and Venkat Rao.
12.As can be seen from the recitals of Ex.A1 – Gift Deed., it was recited that document schedule property is self-acquired property of father of Pw.1.
After demise of their father, document schedule property jointly devolved to plaintiff and his brother Venkata Rao. However, during the cross- examination of Pw.1, he deposed that plaint schedule property is their ancestral property and devolved from their forefathers.
(a)He admitted that there is no mention of link deed in Ex.A1 gift deed.
(b) His parents blessed with 4 children, 2 daughters namely Lakshmi,
Veerraju and 2 sons i.e., Venkata Rao & Ramulu i.e., Pw.1 & his brother.
(c) His elder brother Venkata Rao has children.
(d) He denied that children of his elder brother & his sisters are also having share in plaint schedule property and he is not the exclusive owner of the plaint schedule property.
(e) He denied that measurements, boundaries of the property of
Ex.A1 are not correct and they are presumptive and they mentioned the door number by assuming it.
13.Learned counsel for the plaintiff submitted written arguments by stating that the document filed by the plaintiff Ex.A1 to show that his brother 14 executed his half share on plaintiff behalf and hence the plaintiff is the owner of the plaint schedule property for an extent of 152 Sq. Yds. For this the defendant contending that he is not the owner of the plaint schedule property as all the family members were not executed the relinquishment deed except the brother of plaintiff. His submission is that admittedly he and his brothers are the owners of the property and this fact is known to the defendants also and hence the suit filed by the 1st defendant, O.S. 133 of 2005 was marked as Ex.A2. On the other hand, this suit filed by the plaintiff is on the third party’s but not on his family members.
Learned counsel for the plaintiff further submitted that Plaintiff relied upon the Ex.A1 Gift Deed and nobody came to the court and denied the title of the plaintiff. Even as per the admission made by the defendant, in Ex.A2
Plaint Copy in OS 133 of 2005, plaintiff is the owner of the plaint schedule property. Therefore, plaintiff proved his title to an extent 152 Sq. Yards and defendant never denied the extent of the plaint schedule property in this suit.
14.Learned counsel for the defendant submitted in his written arguments that “for his claim to be the absolute owner of the suit B schedule items 1 and 2 shown as “AEFGCD” in plaint plan, the plaintiff relies upon his Ex.A1 registered gift deed dated 10-03-2004. But said gift deed was executed on undivided ancestral property, the donor (plaintiff’s brother) gifted away his half share to the plaintiff. But there are other coparceners with right and title over the said property. Their consent for the said gift is not given as per the contents of the said gift deed. Such a gift without the consent of the other coparceners is not valid in law. For this submission he relied upon
Thamma Venkata Subbamma v. Thamma Rattamma AIR 1987 SC 1775
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Wherein it was held that, “a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener and that such a gift would be legal and valid.”
Hence, he submitted that plaintiff is not the absolute owner of the suit B
Schedule properties Item No. 1 & 2 shown as “AEFGCD” in plaint plan.
15.On the other hand, the learned counsel for the plaintiff replied that “above said cited of Thamma Venkata Subbamma will not applicable to the present facts of the suit as the case mentioned by the counsel is in between the family members but not with outsiders. In this suit, the defendant admitted that title of the plaintiff and his brother by filing the OS 133 of 2004 i.e., Ex.A2 plaint. Hence, the citation will not applicable.
16.While considering the facts the attestors of gift deed i.e., Ex.A1 is not examined to prove the gift. As per the contention of the plaintiff, the defendant admitted that title of the plaintiff and his brother by filing OS 133 of 2004 i.e., Ex.A2 Copy of the plaint. The plaintiff and his brother venakata rao are the defendants in OS 133 of 2004. As can be seen from the averments of the plaint, it was averred that “defendants who are jointly owning a house on the northern side of the plaintiff’s house started construction of new house and encroaching the plaint path way”.
17.According to the averments of the plaint OS 133 of 2004 it was averred plaintiff and his brother Venkata Rao jointly owning the house. It was not recited that house exclusively owned by the Yiyyapu Ramulu.
Hence, even as can be seen from the averments of the plaint in OS 133 of 2004, there is no admission on the part of the defendant in the suit, that the plaintiff is absolute owner of the plaint schedule property.
18.The elder son of the Pw.1 is examined as Pw.2, he deposed in his cross-examination that Ramakrishna, Subba Raju and Vani are the children of his paternal aunt Lakshmi. The children of the Veer raju are residing in 16
Dummuru. He does not remember their names. The donor of Ex.A1 i.e., his senior paternal uncle was died in the year 2020. His wife is alive and they had three children namely Mhadava Rao, Appala Raju & Govinda Rao, who are residing in Gollaprolu. He admitted that as per Ex.A1, the plaint schedule property is shown as ancestral property.
19.As per the evidence of the Pw.1 & Pw.2, plaint schedule “A & B” are their ancestral properties. Even as can be seen from the recitals of the
Ex.A1, gift deed the document schedule property is ancestral property. Pw.1 & Pw.2 are also deposed that above said persons are the coparceners and having share over the ancestral property. It is not the case of the plaintiff that partition was affected among brother and sisters of the plaintiff and plaint schedule property devolved to the share of the Yiyyapu Venkata Rao.
In Ex.A1, it was clearly recited, the document schedule property is the self- acquired property of their father, after demise of their father, plaintiff and his brother Yiyyapu Venkata Rao jointly devolved the said property.
20.Though learned counsel for plaintiff submitted that Thamma Venkata
Subbamma will not applicable to the present facts of the suit as the case mentioned by the counsel is in between the family members but not with outsiders, There is no force in the contention and arguments of the plaintiff the finding of Tamma Venkata Subbamma v. Thamma Rattamma is very much applicable to the facts of this suit..
21.Therefore, Yiyyapu Venkata Rao has no right to execute the gift deed in favour of plaintiff, without obtaining the consent of the remaining coparceners; Hence, Ex.A1 gift deed is void. Since the plaintiff relied upon
Ex.A1 gift deed to prove that he is absolute owner of site Plan B schedule item no. 1 & 2 and failed to prove that Ex.A1 is valid gift deed. Therefore, issue number 1 is answered in negative and against plaintiff.
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22. Issue no.2
Whether the plaintiff is entitled for the declaration , that he is the
absolute owner of the B-Schedule items 1 and 2 shown as "AEFGCD"
in plaint plan.
The learned counsel for defendant submitted that, in a suit for declaration the burden is on the plaintiff to establish his title.
In Ram Das Vs. Salim Ahmed, 1998 (9) SCC 719
The Honourable Supreme Court observes, “It may be noted that the plaintiff was not entitled to get declaration of title if such title could not be established by the plaintiff by leading convincing evidence." In the matter on hand, the plaintiff is not at all able to establish his title.
He also submitted that in a suit for declaration and possession, the plaintiff can succeed only on the strength of their own title and not on the weakness of the case of the defendants. For this submission, he relied on decision of the Honourable Supreme Court
In reply to the arguments of defendant , plaintiff counsel submitted that,
Ram Das Vs. Salim Ahmed:- In this case the title of the party i.e., the WILL was not produced by the party hence the Hon'ble court said the plaintiff has to prove his case. But in my case I filed Ex. Al and the defendants admit the same by way of Ex. A2.
defendant also relied upon
Jagdish Prasad Patel Vs. Shivnath, 2019 (6) SCC 82
The Honourable Court observes, " In the suit for declaration for title and possession, the plaintiff - respondents could succeed only on the strength of their own title and possession defendant is and not on the weakness of the case of the defendants 18
23.It is submitted that in this matter, the defendants have successfully established their title to the alleged encroachments by producing Exhibits
B1, B2 and B3 and Exhibit A-8 (produced by the plaintiff). But even if the defendant is not able to establish own title, the plaintiff has to rely on his own strength in order to succeed in a suit for title and declaration. For this submission, reliance is placed upon the decision of the Honourable
Supreme Court
24.Plaintiff counsel submitted that Jagdish Prasad Patel Vs. Shivnath :-
Ex. Al filed and Ex.A.2 admissions are there what more the plaintiff have to prove and Ex. B1 to B3 clearly stated that the defendants having only having 168 Sq. yards they cannot executed Ex. B3 to DwI and on the other hand he cannot execute the way as if it is property and when the suit in O.S.
103 of 2004 is pending with regard to dispute of Way.
25.Defendant also relied upon
Union of India Vs. Vasavi Coop Housing Society Ltd.AIR 2014 SC 937.
It is held, "The legal position, the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is against, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited.
Plaintiff counsel submitted that Union of India Vs. Vasavi Co-op
Housing Society Ltd.:-The plaintiff filed Ex. Al and the defendants admit Ex.
A2 and plaintiff also got appointed the commissioner and the report said that the defendant encroached the portion of the plaintiff, what more plaintiff has to prove. Hence this citation is not applicable even though it is good citation with regard to declaration suits.
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Defendant counsel submitted that in a suit for declaration of title and to establish injunction, it is not obligatory on the part of defendant to prove the defects in plaintiff's title as per the decision of the Honourable Andhra
Pradesh in plaintiff's title
In Sajana Granites Vs. Manduva Srinivasa Rao, 2002 (2) ALD 436
it is submitted that in a suit for declaration of title, the plaintiffs have to establish not only their title but also the title of their vendors. If the vendors claim that it is ancestral property, that fact also is to be established as observed by the Honourable Andhra Pradesh High Court
Plaintiff counsel further submitted in his written arguments that the citation will not be applicable to the present case as this suit was filed by the plaintiff on the 3 rd parties but not on the family members to safe guard his site and if the family members are having any share they will file separate suit for their grievance. Hence I submit that the defendants cannot stand on their only plea.
26.On the other hand the defendants filed the suit O.S. 133/205 was only on 4 persons and they are stating that they are the owners of the property, in which one of the person i.e., the 2" defendant therein executed the gift deed Ex. Al in favour of 1st defendant i.e., plaintiff and other 3 and 4 are the sons of the 1 defendant therein i.e., plaintiff in this case.
in its decision The Executive Offcer, Sri Bramaramba Mallikarjuna
Swamy Temple Vs. Sai Krupa Homes, 2010 (6) ALT 699 in the matter on hand, the plaintiff claims that half -share of the property is gifted to him from out of the ancestral property. But he is not able to prove that itis ancestral property.
In K. Papadu Vs. Golagana Suryanarayana 2005 Supreme (A.P.) 747 Honourable Andhra Pradesh High Court observes that in a suit for declaration of title in case of ancestral properties, they can be proved by 20 revenue records. As an analogy to the said observation, in the case of houses, panchayat records like assessment registeres and panchayat tax receipts can be produced to prove that the plaint A-schedule property is ancestral. But no such attempt is made by the plaintiff.
27.He also submitted that the plaintiff has produced his Exhibit A-1 gift deed, but he has not made any attempt to prove the truth of its contents. He has not produced the scribe to prove the truth of its contents. For this submission reliance is placed upon the decision of the Honourable Andhra
Pradesh High Court
In V. Satyawathi Vs. P.Venkataratnam, 1988 (1) L.S.315 wherein it is observed that the writer of the document is also to be examined to prove the document.
in K.Kuppuswami Pillai Vs. K. Natarajan, 1993 (2) LW 587 the Madras High Court also observes that when the genuineness of the contents are in dispute, it is necessary to examine the scribe
Moreover, a gift deed is a compulsorily attestable document.
According to section 123 of Transfer of Property Act, "For the purpose of the making a gift of immoveable property, the transfer must be effected by a to the defendants' property, they have to file registered instrument signed by or on behalf of the donor, and attested by at least two witnesses." claiming Adverse Possession.
28.According to section 68 of the Indian Evidence Act, "If a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving the execution. But the plaintiff has failed to call any attesting witness for the purpose of proving the execution of his Exhibit A-1 gift deed, the validity by one of its attestors as D.W.3. Hence, in the circumstances mentioned above, the second issue is to be answered in favour of the defendants by 21 holding that the plaintiff is not entitled for a declaration that he is the absolute owner of the B-schedule items 1 and 2 shown as " AEFGCD" in the plaint plan.
29.In reply to the arguments of defendant, plaintiff submitted that (Sajana Granites Vs. Manduva Srinivasa Rao :-
The Executive Office, Sri Bramaramba Mallikarjuna swamyTemple Vs. Sai
Krupa Homes :- . K. Papadu Vs. Golangana Suryanarayana :-
The above three citation were made basing on the revenue records because revenue records did not confirm any title and hence the Hon'ble
Court said that the plaintiff has to prove his case basing on their title deed.
In present the plaintiff filed their title deed. Hence these citations will not be applicable. The other citation will not be applicable to the present case.
30.Plaintiff submitted in his arguments that the defendants are having their property on the southern side in an extent of 168 Sq. Yards of site which was purchased by the 1st defendant and the vendor's father got that property by way two bits and the property which was purchased by the 1st defendant i.e., an extent of 168 Sq. yards and in which and extent of 98 Sq.
yards of property on his Faster side, 1st defendant executed a registered
Gift deed dt. 16-7-2001 in favour of his son by name Amjuri Ganniyya who is the 5th defendant (Dw2) in this suit and the said document was marked as
Ex. B2 (for an extent of 98 Sq. yards) in his total extent of 168 Sq. Yards site which is on the eastern side of his total site of 168 Sq. yards. This fact was not informed in the suit O.S. 133 of 2004 and without joining the 5th defendant as party in that suit, the 1st defendant only filed the suit O.S. 133 of 2004 against the plaintiff and his brother. This property i.e, Ex. B2 property was sold by the 5th defendant to Amjuri Krishna Veni who were added as 3rd defendant and who is the wife of 2nd defendant (Dwl) and 22 executed a sale deed in her favour as Ex. A8. The 3rd defendant did not come into the Box to say that on her northern side i.e., on her southern side she was not occupied the plaintiff's property and she did not say that the commissioners report is not correct.
31.He submits that the 1st defendant also executed another Gift settlement deed dated17-03-2011 Ex. B3 in favour of his another son Amjuri
China Ram Babu who is the2nd defendant (Dwl) in this suit and who was examined as Dwl in this case for an total extent of 90.24 Sq. yards as 3 items who is only having remaining extent of 70 Sq. yards after the execution of 98 Sq. yards site in favour of D5 as per Ex. B2 in his total
32.He submits that the executor i.e., 1 defendant is not having any right to execute the such a gift settlement deed date 17-03-2011 (Ex. B3) for an extent of 90.24 sq. yards which he is not having any right or title on the side of northern side and to execute such gift deed by 1st defendant in favour of 2nd defendant (PW1) and it clearly shows that he might have executed that document which was occupied by him. Even as per the plan filed by the 1st defendant in O.S. 133 of 200s and the as per the admissions made in the evidence of Pwl the way which was shown by him is to the North West corner of the defendants' property but the defendants contending in this suit that the way is on the western side of the plaint schedule property and later it was way and after that also the defendants having their constructions.
33.Counsel for plaintiff further submits that the other side submitting his arguments that the way mentioned as Item No. 3 in B3 document and hence
D1 executed in favour of D2. The ways will not be conveyed to others by way mentioning as schedule properties in the deeds which the defendant is not having any saleable interest or right on that property and on the other the item NO. 3 of B3 settled to him by way of adverse possession through
Kurru People for which there is no proof and the Kurru people are not the 23 parties even in the suit O.S. 133 of 2004. The defendants did not file any case for any other reliefs by filling any cases after dismiss the suit O.S. 133 of 2004. But the defendants contending as they compromised before the elders they did not come to the court and hence the suit was dismissed which is wrong contention and there is no proof at all and theDw.1 cross- examined by the plaintiff's counsel on this point and that the suit O.S. 133 of 2004 was dismissed for default twice and the Ex. A4 judgment clearly mentioned that the plaintiff was not present in spite of opportunity given to him. Hence the compromise contention made by the defendants is baseless and not correct and proved by the defendants.
34.Plaintiff submits that the defendant is not having any case to prove that they are having site on the western side of the plaint schedule property and defendant contending at the time of trail that they are having adverse possession for the site of way which they are used from Kurru Apparao, if they are having adverse possession for the way which mentioned in the plan of O.S. 133 of 2005 which is situated on the North West corner to the defendants' property, they have to file the suit on the Kurru Apparao by claiming Adverse Possession but not on this case as filed by the 1st defendant O.S. 133 of 2005. The defendants did not adduce any evidence against the case of the plaintiff.
35.He further submitted that while at the time of submitting the arguments the defendants counsel misleading the court through Ex. B4 and
EX. A7 and that Ex. B4 is the part of the link document to the Ex. B1 only for the half of the property but not for the full property, even as per the admission of the Dw2 in his cross examination, he filed Ex.A7 mortgage deed of Kurru people who were the western side to the plaintiff's property.
Ex. A7 clearly mentioned that the Eastern boundary to the Kurru people is the property of the plaintiff but not the way of the defendants. Hence it is 24 clear that there is no way to the defendants on the western side of the plaintiff.He submits that the defendant mainly contending that the suit filed by the plaintiff is not correct as the plaintiff is not the absolute owner of the property as the brother of plaintiff cannot execute the alleged gift deed Ex.
Al
36.While considering the evidence of the plaintiff and defendants, during the cross-examination of the Pw1, he admitted that there is no mention in link document in Ex.A1 Gift deed. He had not file any tax receipts with door number 1-66. In the cross-examination of the Dw.1, he also stated that OS 133 of 2004 filed against plaintiff his children and brother of the plaintiff by contending that they are the owners of the plaint schedule property.
It is settled law that, in a suit for declaration, heavy burden lies on the plaintiff to prove his title Even as can be seen from the evidence of the defendants they never admitted that plaintiff is the exclusive owner of the plaint schedule property, as per the pleadings of the OS 133 of 2004 they contended that plaintiff and his brother and their children are having the house in plaint schedule property, In such circumstances, the plaintiff cannot take that statement as an admission on the part of the defendants to say that defendants admitted his ownership over the plaint schedule property.
Since the plaintiff failed to prove that he is the absolute owner of item nos. 1 & 2 of the plaint B schedule property as answered in issue no.1 he is not entitled for declaration of ownership that he is the absolute owner of item nos. 1& 2 of plaint schedule property therefore issue no.2 is answered in negative against the plaintiff.
37. Issue no.3 to 6
3. Whether the defendants are occupied the schedule land?
4. Whether the defendants are liable to vacate from the schedule land and hand over to the possession of the plaintiff?
25
5. Whether any constructions are made at Gate at point "A E", Walls
at"E E1" and "F F1" points, lavatory tank and bath rooms at "B L"
point, Well at "W" point, Compound wall at "F G" point and portico
project in the plaintiff's site?
6. Whether they are liable to be demolished by the defendants before
handing over the schedule property, failing which whether plaintiff is
entitled to get them through process of law?
As per the pleadings of the plaint, he contended that during the pendency of the suit OS133 of 2005, by taking advantage of the interim orders in his favour, the 1st defendant herein high-handedly encroached into the B scheduled property Item No. 1 showing " AEFD" in the plaint sketch and put up the GATE at the point " AE". And constructed wall at E.E1. and F.F1. and restrained the plaintiff and his family members not to enter into a 1 1/2 yards' site left by the plaintiff on the western side of the site for their use. In view of the pendency of the interim orders against them, the plaintiff and his family members kept quiet. He also submitted that OS No. 133 of, 2005 was dismissed for default on 24.04.2011. But the plaintiff /1 st defendant filed the petition to get restored. But even after restoration the plaintiff did not appear
before the court. Hence the court dismissed the said suit for default on
07.12.2011.
38.Plaintiff failed to mention when the defendants get interim injunction order in OS133 of 2005 and made illegal constructions said to have been constructed by the defendants in this suit. In the cross examination of
PW.1,he testified defendants occupied the land and defendants have been in possession of plaint ‘B’ schedule property from the date of dispute arose between them and when the defendant filed suit against him, and constructed a bath rooms by removing his wall at about 4 years or 2 years.
26
Pw.2 admitted in his cross examination that the defendants have been enjoying the site from 2004. For which he testified that when they were constructing a housed, D.1 obstructed and erected a wall in it by filing a suit against them.
39.The advocate commissioner report goes to show that he verified the registered sale deed dated 10.03.2004 in the name of plaintiff and he verified the registered sale deed dated 30.11.1988 in the name of 1st defendant and he also verified the physical features of plaint schedule property. The plaint schedule property is RCC slab building. On the southern side of plaint schedule property the defendants tiled house beyond that the tiled house RCC slab building of the defendants are situated.
The measurement of plaint schedule property as per. document dated
10.03.2004 is on :
East: 41 Feet - Raja Veedhi, but on land it is 39 feet
South: 33 feet 6 inches but on land it is 29 feet 6 inches, when the measurement is taken up to the wall of Kurru. Appa Rao, it is33 feet 6 inches, the difference is 4 feet.
West: 38 feet but on land it is 36 feet
North:35 feet 9 inches but on land it is 33 feet 6 inches, when the measurement is taken up to the wall of Kurru. Appa Rao it is 35 feet 9 inches, the difference is 2 feet 3 inches.
The measurement of defendant’s house as per documents dated
30.11.1988 is on:
27
East: 32 Feet - Raja Veedhi, on land also it is 32 feet
South: 47 feet ,but on land it is 45 feet
West: 32 feet, on land it is also32 feet
North: 47 feet but on land it is 45 feet
Learned counsel for plaintiff filed objections that an advocate commissioner had not mentioned the measurements of occupied portion towards south and west of the plaintiff’s property. Advocate commissioner report is inadequate report did not contain the particulrs of wall, gate and other physical features. The advocate commissioner report based on Ex.A.1 gift deed,. However, Ex.A.1 gift deed itself is not valid in the eye of law as discussed in issued no.1 and 2; the plaintiff is not entitled to restore the possession of plaint B schedule property. Property therefore issue no.3 to 6 are answered in negative against the plaintiff.
40. Issue no.7
Whether the plaintiff is entitled for permanent injunction restraining
the defendants from further interfering with plaint B-schedule 29
square yards site shown in A E F G C D “ in plaint plan?
Plaintiff failed to prove that he is the absolute owner of item nos. 1 & 2 of the plaint B schedule property and he is not entitled for declaration of ownership that he is the absolute owner of item nos. 1& 2 of plaint B schedule property.
Since the plaintiff is not entitled for the relief of declaration as answered in issue no.1 and 2, he is not entitled to seek for the relief of permanent injunction as prayed. Point is answered accordingly.
41. Issue no.8
Whether the plaintiff is entitled for declaration and permanent
injunction as prayed for?
28
Since issues no.1 to issue no.7 are answered against the plaintiff, he is not entitled for declaration and permanent injunction as prayed for. . Point is answered accordingly.
42. Issue no.9
To what relief ?
In the result, Suit is dismissed.
Typed to my dictation, corrected and pronounced by me in Open Court on this the 10th day of October, 2025.
Sd/- M.Vijaya Rameswari
(FAC) Additional Junior Civil Judge, `Pithapuram.
APPENDIX OF EVIDENCE
WITNESS EXAMINED
For Plaintiff:
PW1: Yepu Ramulu
PW2: Yepu Naga Chakradhara Rao
PW3: Yepu Appalaraju
For Defendant:
D.W.1: Amjuri China Ram Babu
D.W.2: Amjuri Gannerao @ Ganiyya
D.W.3: Karri Satyanarayana
D.W.4: Amjuri Rambabu
DOCUMENTS MARKED
For Plaintiff :
Ex.A1 is the registered gift deed dated 10.03.2004 executed by Yepu
Venkata Rao 29
Ex.A2 is the served copy of plaint in OS,133/2004 on the file of Junior Civil
Judge Court, Pithapuram.
Ex.A3 is the served copy of sale deed dated 30.11.1988 executed in favour of 1st defendant.
Ex.A4 is the certified copy of judgment and decree in OS.133/2005 on the file of Junior Civil Judge Court, Pithapuram.
Ex.A5 is the house tax receipt along with demand notice in the name of plaintiff for the period 2012-13
Ex.A6 is the office copy of complaint dated 23.03.2013 addressed to SI,
Gollaprolu.
Ex.A7 is the registration extract of mortgage deed dated 15.06.1970 executed in favour of Kurru Adiraju.
Ex.A8 is the certified copy of sale deed vide document No.841/2011 dated 17.03.2011 in favour of D5.
For Defendant:
Ex.B1 is the original sale deed No.3129/1988 of Sub-Registrar, Pithapuram in favour of the 1st defendant dated 30.11.1988.
Ex.B2 is the certified copy of the gift deed No.1796/2001 of Sub-Registrar,
Pithapuram in favour of the 5th defendant dated 16.07.2001
Ex.B3 is the certified copy of gift settlement deed No.842/2011 of Sub-
Registrar, Pithapuram in favour of 2nd defendant dated 17.03.2011.
Ex.B4 is the certified copy of registered sale deed dated 22.04.1929
Sd/- M.Vijaya Rameswari
(FAC) Additional Junior Civil Judge, `Pithapuram.