1/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
IN THE COURT OF ADDL. SENIOR CIVIL JUDGE :: AT SIDDIPET
PRESENT :: SRI MILIND KAMBLE,
ADDL. SENIOR CIVIL JUDGE,
SIDDIPET
Wednesday, this the 16th day of October, 2024
O.S. No. 160 OF 2012
Between:-
Akula Mallappa S/o Shankaraiah, Age 52 years, Occ: Agriculture, R/o. Gajwel, Revenue Mandal Gajwel.
….Plaintiff
A N D
1.Maisakshi Mallesham (died on 21-09-2012 per L.R. Defendant No.6)
2.Talakokkula Rajesham, S/o. Narsimulu, Age 34 years, Occ: Business, R/o. H.No. 3-163, Gajwel.
3.Bashini Koteshwar Rao, S/o. Kumaraswamy, Age 46 years, Occ: Agriculture, R/o. Jaligama, Revenue Mandal Gajwel.
4.Mohd. Vaheeduddin Khan (died on 05-04-2015 per L.Rs. Defendant No.5 and 7)
5.Mohd. Khaled Abdur Raoof Khan, S/o. Md. Vaheeduddin Khan, Age 45 years, R/o. H.No. 15-75, Old Town, Gajwel presently residing at H.No. 11-3-554/A, Besides Prince Hotel, Mallepally, Hyderabad.
6. Maisakshi Nagu Bai, W/o. Mallesham, Age 45 years, Occ: Household, R/o. Lingareddypally village, Revenue Mandal Doultabad.
7.Mohd Shahed Jammaluddin Khan, S/o. Mohd, Vaheeduddin Khan, age 40 years, Occ: Private Employee, R/o Mangole Village, Revenue Mandal Kondapak, Siddipet District. .…Defendants 2/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
This suit coming before me for Judgment, in the presence of Sri A. Kiran Sagar Rao, counsel for Plaintiff and Sri. V. Raja Reddy, Counsel for Defendants and the matter having stood over for consideration till this day, this Court delivered the following:-
:: J U D G M E N T ::
1.The plaintiff filed this suit for Declaration of Title and Perpetual
Injunction in respect of suit schedule property.
2.Case of Plaintiff:- The plaintiff is the absolute owner and exclusive possessor of the suit schedule A property. On 10.04.1996 the plaintiff has purchased the suit schedule-A land from the defendant No.4 under the registered sale deed No.1343 of 1996 dated 10.04.1996 for a valid consideration of Rs. 31,800/- (Rupees Thirty One Thousand Eight
Hundred Only) and came into physical possession to suit A schedule property. The name of the plaintiff was mutated through proceedings
dated 21.01.1997 through file number No. B/204/1997 issued by the
M.R.O. Gajwel in respect of suit schedule-A property. The revenue authorities issued pattedar passbook title in favour of plaintiff and the plaintiff name was recorded as owner and possessor in respect of suit schedule A property. The plaintiff has been cultivating the suit land by raising dry crops therein. In the rainy season of 2012 the plaintiff raised maize crop. The plaintiff also purchased land in Sy.No. 589/Ru, to an extent Ac. 0-07 ½ gts., in Sy.No. 589/Roo to an extent Ac.0-07 ½ gts., 3/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, situated at Gajwel from the defendant No.4 and his brother Mohd.
Hameed Khan under the registered sale deed document No. 657 of 2005, dated 14.02.2005 for a valid consideration of Rs. 15,000/- (Rupees Fifteen Thousand Only) and came into possession of the said property and his name was got mutated and recorded in the pahanies as owner and possessor. In the rainy season of 2012 the plaintiff became owner and possessor land of Ac.3-39 gts and Ac.0-15 gts., at
Gajwel. The said Ac.0-15 gts., of land is located on the western side of the suit schedule property. In the recent past the defendants No.4 and 5 threatened the plaintiff as he does not have valid title over the suit land.
On 30-07-2012 evening hours all the defendants highhandedly came to the suit land and denied the title of the plaintiff and tried to interfere into his possession over the suit land, they tried to damage the maize field and also tried to disposses him from the land, but plaintiff could resist the illegal acts of the defendants. The plaintiff has made efforts by visiting the Sub-Registrar office, Gajwel and came to know that a false sale deed document No. 5123 of 2012, dated 30-07-2012 has been executed by defendant No.4 in favour of defendant No.1 to 3 attested by the son of defendant No.4 that is defendant No.5 in respect of suit schedule A-property. The plaintiff has obtained the certify copy of the sale deed on 23-08-2012 and came to know that a document is created to grab away his property as the defendant No.4 has no alienable right.
4/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
3.Originally defendant No.4 and 1/Mohd. Hameed Khan are brothers, the suit lands and other lands were owned by their father by name Mohd. Hayath Khan. On 20-04-1985 the defendant No.4 and his brother partitioned their lands which includes the suit land into two equal shares by metes and bounds under a registered partition deed dated 20- 04-1985 vide document No.1102 of 1985. The suit land fell to the share of the defendant No.4 in Sy.No. 593. Originally the total extent in Sy.
No.593 is Ac.10-10 gts., and in Sy.No.590 is Ac.1-00 gts., as such defendant No.4 got Ac.5-05 gts., his brother got Ac.5-05 gts., towards their respective shares in Sy. No.590. The lands in Sy.No. 590/AA/1, extent Ac.0-14 gts, and Sy.No.593/A/1, extent Ac.3-25gts, total extent
Ac.3-39gts, located in enblock situated at Gajwel.
East:Land of Mohd.Hameed Khan now land of Smt.Shameem Sulthana
West:Land of Gangishetty Srinivas, S/o Balaiah and Electric K.V. Sub-Station
North:P.W.D. Road leads from Gajwel to Toopran
South:Land of Atukuri Ramulu which is descripted in the schedule cum sketch map attached to the plaint which is the suit schedule-A land. On 10-04-1996 the plaintiff has purchased the suit schedule-A land from the Defendant No.4 under the
Registered Sale Deed No. 1343 of 1996 for a valid consideration of 5/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
Rs.31,800/- (Rupees Thirty One Thousand Eight Hundred Only) and came into possession, since then he has been in physical possession thereof. Plaintiff got the patta mutated vide the proceeding dated 21-01- 1997 in file No.B/204/1997 passed by M.R.O., Gajwel. The revenue authorities have issued the pattedar pass book and title deed to the plaintiff. The name of the plaintiff has been recorded in the pahanies as owner and possessor of the suit schedule-A land. To substantiate the claim of the plaintiff the original sale deed, mutation order, pass book and certified copies of pahanies for the year 1996-97,1997-98,1998-99, 1999-2000, 2000-01, 2001-02, 2002-03, 2003-04, 2005-06, 2006-07, 2007-08, 2008-09, 2009-10, 2010-11 and true copies of Pahani for the year 2011-12 are filed. The plaintiff has been cultivating the suit land by raising dry crops in the suit land. In the rainy season of 2012 the plaintiff he has raised maize crop.
4.The plaintiff also purchased the land in SY.No.589/Ru, extent
Ac.0-07 ½gts., Sy.No.589/Roo, extent Ac.0-07 ½gts., situated at Gajwel from the defendant no.4 and his brother Mohd.Hameed Khan under the
Registered Sale Deed No.657 of 2005, dated 14-02-2005 for a valid consideration of Rs.15,000/- (Rupees Fifteen Thousand Only) and came into possession the said land which boundaries are:
6/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
East:Suit schedule-A land of the Plaintiff
West:P.W.D. Road leads from Gajwel to Toopran
North:P.W.D. Road leads from Gajwel to Toopran
South:133,132/11 K.V. Sub-Station.
The plaintiff got the patta mutated in his name and his name is recorded in the pahanies as owner and possessor. In the rainy season of 2012 the plaintiff has raised maize field in the said land. Thus the plaintiff is the owner and possessor of Ac.3-39gts + Ac.0-15gts of the land situated at
Gajwel. The said Ac.0-15 gts. Of land is located on the western side to the suit schedule-A land.
5.The defendant No. 1 to 5 knowing well that the plaintiff owner and possessor of the suit land the alleged transaction his made under forged document. The Defendant No.4 and 5 are threatening the plaintiff that he does not have valid title over the suit land. On 30-07-2012 in the evening hours all the defendants highhandedly came to the suit land and denied the title of the plaintiff and tired to interfere with the peaceful possession of the plaintiff and tried to damage the existing maize field, and tried to dispossess the plaintiff from the suit land. But the plaintiff could resist the illegal act of the defendants. The plaintiff has made a search in the office of Sub-Registrar, Gajwel and came to know that a false sale deed
No.5123 of 2012, dated 30-07-2012 alleged to have been executed by 7/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, defendant No.4 who has no alienable rights, and that the said document is attested by his son defendant No.5 in favour of defendant No.1 to 3 in respect of land Sy.No. 593/A/1, extent Ac.0-26 gts, situated at Gajwel covering with the boundaries.
East:Land of Shameen Sulthana
West:133 K.V. Sub-Station
North:P.W.D. Road from Gajwel to Toopran
South:Land of Akula Umapathi (brother of plaintiff) which is a document having the above property, which document is schedule-B referred as schedule-B document, accordingly the plaintiff has obtained the certified copy on 23-08-2012 and found that the property mentioned in the document is part and parcel of the suit scheduled property.
6.The defendant No.1 to 3 are not bonafide purchasers and they have created false document only to grab his property. The defendant
No.1 to 5 all were aware of his possession over the suit land.
7.Originally the defendant No.4 and Md. Hameed are real brothers and their father Md. Hayath owned suit lands. On 20-04-1985 defendant
No.4 and his brother partitioned their lands into two equal shares under partition deed dated 20-04-1985 vide document number 1102/1985. The suit schedule-A land fell to the share of defendant No.4. The land in Sy.
8/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
No. 593 is Ac.10-10gts and land in Sy. No.590 is Ac.1-00gts. The defendant No.4 got Ac.05-05gts in Sy. No.593. There is 100 feet PWD passing through Sy. No.593 and also there is an internal road from
Gajwel to Stadium. Thus, Ac.00-33gts of land is covered with both roads and defendant No.4 land of Ac.00-16 ½gts out of Ac.5-05gts is covered with the road. The defendant No.4 sold Ac.01-00gts of land to
Gangishetty Balaiah, Ac.03-39gts to plaintiff, Ac.00-06gts to Shameem
Sulthana and Ac.00-03 ½ gts to A. Yellaiah. Thus, defendant No.4 has no single piece of land in Sy. No.593. As the land covered by road, the land sold to Shameem Sulthana and land sold to A. Yellaiah is not deleted from the passbook, taking advantage of the same defendant
No.4 sold land covered under schedule-B property, which is false, fictitious document. The defendant No.1 to 3 on 29-08-2012, 30-08- 2012 and 08-09-2012 who are the henchmen of defendant No.4 and 5 tried to interfere into the plaintiff possession over the suit schedule-A property; but the plaintiff could resists the illegal acts of the defendants.
Therefore the present suit is filed with a prayer to declare the plaintiff as the owner and possessor of suit schedule-A property; consequently restraining the defendants perpetually from interfering into his peaceful possession over the suit schedule-A property and to declare the document schedule-B document as null and void.
9/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
8.The defendants No.2 to 6 filed the written statement along with counter claim. In the pleadings there defendants aver that the entire facts that are pleaded in the plaint are not true and there defendants denied the entire plaint averments with a prayer to dismiss the suit with costs. Further the defendants in their counter claim aver that defendant
No.4 never sold Ac.03-39gts in Sy. No. 593 in Sy. No.593 to the plaintiff and that defendant No.4 had land in Sy. No.593 as such he sold the same to defendants No.1 to 3. There is a road since more than five decades connecting Gajwel and Toopran passing through Sy. No.593 with width of 50 feet. The defendant No.4 sold Ac.00-14gts of land in Sy.
No.590 and Ac.0325gts in Sy. No.593 to plaintiff which includes the existing road which passes through the sold land. The defendant No.4 sold Ac.00-34gts of land in Sy. No.593 in favour of Gangishetty Balaiah besides Ac.00-06gts in Sy. No.590. After the said alienation defendant
No.4 was left with Ac.00-26gts of land in Sy. No.593; which is sold to defendant No.1 to 3 through registered sale deed No.5123/2012 dated 30-07-2012 having following boundaries:
North:Road
South:Land of Akula Mallappa
East:Agriculture land of Shameem Sulthana
West:133 K.V. Sub Station 10/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
However in the document the western boundary was mistakenly shown
as 133 KV Sub-Station instead of agriculture land of Akula Mallappa, as
such rectification deed is executed. The defendant No.4 inducted defendant No.1 to 3 into possession of the land. The plaintiff under the guise of inunction order has occupied Ac.00-26gts of land without any manner of right.
9.The road connecting Gajwel-Toopran was never 100 feet road even at time of partition in the year 1985 or subsequent to it. As such there is no possibility of the defendant No.4, Ac00-16gts of land covered by roads. The defendant No.1 to 3 are owners of Ac.00-26gts of lands.
Therefore the defendants pray to allow their counter claim declaring defendant No.1 to 3 as owners of Ac.00-26gts of land and also recovery of possession of the same.
10.The plaintiff filed rejoinder to the counter claim denying the ownership, possession of the defendant No.1 to 3 of the counter claim scheduled property. The plaintiff categorically denied the existence of counter claim property in view of the defendant No.4 selling away his Ac.
05-05gts of land to him; G. Balaiah, Shameem Sulthana and A. Yellaiah, and the remaining land being covered by PWD road. Therefore plaintiff prays to dismiss the counter claim with cost.
11/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
Heard. Perused the record.
The Court framed the following issues:
1)Whether the plaintiff is absolute owner of suit “A” schedule land measuring Ac.3-39 guntas in total in two survey numbers as shown in plaint “A” schedule?
2)Whether the plaintiff was in exclusive possession of entire plaint “A” schedule land as alleged by him as on the date of duty?
3)Whether the suit “B” schedule registered sale deed is sham, fictitious, null and void as alleged by the plaintiff?
4)Whether the plaintiff is entitled for declaration of ownership in respect of entire plaint “A” schedule land as prayed for?
5)Whether the contesting defendants No.1 to 3 are entitled for declaration of ownership in respect of Ac.0-26 guntas of land shown in the schedule annexed to written statement along with counter claim as prayed for?
6)Whether the plaintiff occupied Ac.0-26 guntas of land shown in the schedule annexed to the written statement with counter claim under the guise of injunction as alleged by the contesting the defendants ?
12/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
7)Whether the plaintiff is entitled for consequential relief of perpetual injunction against defendant No.1 to defendant No.5 in respect of entire plaint “A” schdeule land as prayed for?
8)Whether the plaintiff is entitled for cancellation of “B” schedule document as prayed for?
9)Whether the plaintiff is entitled for perpetual injunction against defendant No.1 to 3 from selling or creating the charge or transferring by sale deeds, mortgage deeds or any type of conveyance deeds in respect of Ac. 0-26 guntas in Sy. No. 593/A/1 at Gajwel covered by plaint “B” schedule document as prayed for?
10)Whether defendant No.1 to 3 are entitled for delivery of possession respect of Ac. 0-26 guntas shown in the schedule annexed to written statement with counter claim as prayed for?
11)To what relief?
Issue No.1, 2, 4, 7:
1)Whether the plaintiff is absolute owner of suit “A” schedule land measuring Ac.3-39 guntas in total in two survey numbers as shown in plaint “A” schedule ?
13/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
2)Whether the plaintiff was in exclusive possession of entire plaint “A” schedule land as alleged by him as on the date of suit ?
4)Whether the plaintiff is entitled for declaration of ownership in respect of entire plaint “A” schedule land as prayed for ?
7)Whether the plaintiff is entitled for consequential relief of perpetual injunction against defendant No.1 to defendant No.5 in respect of entire plaint “A” schedule land as prayed for ?
11.The above issue No.1, 2, 4, 7 are interrelated with each other; and to avoid the repetition of appreciation of evidence all these issues are decided together.
12.In a suit for declaration of title the burden of proof is on the plaintiff to prove his case. But it is pertinent to mention that the defendants have also came-up with their counter claim. In this case the plaintiff entered into the witness box as PW1 and filed his affidavit in-lieu of chief- examination by reiterating the entire facts pleaded in the plaint and got marked Ex.A1 to Ex.A26. Besides examining PW2 on his behalf. The case of the plaintiff is that he is owner of suit scheduled “A” property which was purchased by him under Ex.A1(Registered Sale Deed) from defendant No.4; and that the defendant No.4 who is the original owner had Ac.05-05gts of land in Sy. No.593, sold away his entire land in the 14/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, said survey number to different persons, as such defendant No.4 was not left with any land in Sy. No.593; but however as the land sold by defendant No.4 to one A. Yellaiah and Shameem Sulthana was not deleted from the revenue pass book record, and also the land covered under the 100 feet road passing through Sy. No.593 was not deleted, taking advantage of the same the defendant No.4 in collusion with his son defendant No.5 has sold Ac.00-26gts of land under
Ex.A19(Registered Sale Deed) to defendant No.1 to 3; and the defendants are claiming his land as their land. The defence of the defendants is that the defendant No.4 has not sold any land to
Shameem Sulthana or A. Yellaiah and also that the 100 feet road was of only 50 feet at the time of execution of Ex.A1 as such defendant No.4 was left with Ac.00-26gts of land which is sold by him to defendant No.1 to 3 under Ex.A19 and that an internal road was passing through Gajwel to stadium in which plaintiff lost his part of land and now claiming the land sold under Ex.B4. If the rival contention of the two opposite parties are looked into, the crux of the case is whether the defendant No.4 was left with Ac.00-26gts of land in Sy. No.593 to sell the same under
Ex.A19 has to be decided in this case.
13.As discussed above PW1 affidavit in chief is nothing but the entire plaint pleadings. PW2 is one of the attestor of Ex.A1 and the real 15/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, brother of defendant No.4 and also the beneficiary of the partition deed under Ex.A20. PW2 supported the case of plaintiff deposing that the plaintiff has purchased the suit schedule-A property from defendant
No.4; and that defendant No.4 land of Ac.05-05gts; out of which Ac.00- 16 ½ gts of land is covered under the road and the other remaining portion of land defendant No.4 was purchased by his wife Shameem
Sulthana to an extent of Ac.00-06gts under document No.420/2005
dated 27-01-2005, land to an extent of Ac.00-34gts of land was sold to
G. Balaiah through document No.1912/1987 dated 29-06-1987; as such defendant No.4 had no land to sell to defendant No.1 to 3.
14.If the suit schedule-A property and the scheduled property of the counter-claim is perused, the boundaries of the southern side and western side of the said properties are different. The defendants in the counter claim more particularly in their sketch map have admitted about the extent of the PWD road as 100 feet. The defendants in the scheduled property of the counter claim has shown Shameem Sulthana land as the boundary on the eastern side. So it is held that Shameem
Sulthana has purchased land to an extent of Ac.00-06gts of land from defendant No.4 in Sy. No.593. When the defendants themselves have admitted about the existence of 100 feet road in Sy. No.593; by showing it in the rough sketch of the counter claim then the onus shifts on the 16/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, defendants to prove that when did the 50 feet road of Sy.No.593 was widened to 100 feet road. Though the defendants in their written statement at para No.11 pleaded the extent of PWD road as 50 feet but contra to it in the rough sketch the extent of road is admitted as 100 feet. This contradiction shows that the defendants did not approach the court with clean hands.
15.The defendants during the course of cross-examination of PW1 and PW2 tried to elicit that on the day of plaintiff (PW1) purchasing the suit scheduled-A property the road was of only 50 feet, but the defendants could not succeed in the same. The defendants another defence was that at the time of partition of land between defendant No.4 and his brother (PW2) there was no road at all in Sy. No.593. On perusal of Ex.A20 (The Partition Deed) the northern boundary to the land in Sy.No. 593 is shown as PWD road. As such it is held that even at the time of partition there was PWD road in existence. Therefore this defence of defendant cannot be looked into. As stated above the onus is on the defendants to show how the 50 feet PWD road was widened to 100 feet road. The defendant No.3 entered into the witness box as DW1 and got marked Ex.B1 to Ex.B5. The document Ex.B1 is registered sale deed under which defendant No.4 sold the Suit-B property to defendant
No.1 to 3 this is a disputed document. This document Ex.B1 does not 17/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, help the defendants in any manner to show that the 100 feet PWD road was earlier a 50 feet road. Ex.B2 and Ex.B3 are pahanies for the year 1997-98, 2010-2011. These Two documents does not speak anything about the PWD road. So also Ex.B4 and Ex.B5 they are revenue title deeds and pattedar passbook. As such the documents relied by the defendants does not establish that the PWD road was of 50 feet road and subsequently it was widened to 100 feet road. The other witnesses of defendants i.e., DW2, DW3 and DW4 only spoke about the defendant
No.1 to 3 purchasing land from defendant No.4. There is nothing spoken about the PWD road widening from 50 feet to 100 feet, by these witnesses.
16.In the cross-examination of PW1 the defendants elicited the fact that the internal road leading to stadium is passing through the land of
Md. Ismail and Hameed Khan in Sy. No.593. In the cross-examination of
PW2 the defendants elicited that the stadium road is passing through the land of Ismail which is western side and the road is also passing through his land which is on western side in Sy. No.593 and also that, the road is passing only through his land and Ismail land except that the road is not passing through anyone’s other land. On this the counsel for defendants argued that the rough sketch filed by the plaintiff along with the plaint is quite contrary with the above fact elicited in the cross-examination of 18/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
PW1 and PW2. Because the plaintiff has lost his land when the internal stadium road was laid, and that the plaintiff is wrongly claiming their
Ac.00-26gts of land which is lost in the internal road was laid down. The arguments put forth by the counsel for defendants is not sustainable because PW1 and PW2 have categorically deposed that the internal stadium road is passing only through the land of Md. Ismail and Hameed
Khan. Moreover it is pertinent to mention that the defendants have filed their written statement along with counter claim, but nowhere the defendants raised any such plea that the plaintiff has lost his land in Sy.
No.593 when the internal stadium road was laid down. As such the arguments of the defendants cannot be considered. The defendants through their evidence failed to establish that plaintiff has lost some portion of scheduled-A property in the road which was laid in between stadium and Gajwel Town.
17.Coming to the aspect whether the plaintiff has purchased the suit scheduled “A” property under Ex.A1 by defendant No.4. Though the defendants denied about the purchase of land by plaintiff under Ex.A1, but no such evidence was led by the defendants to prove the same.
Except defendant No.3, the other defendants did not choose to enter in the witness box. The document Ex.A1 stands unrebutted and unchallenged which proves the fact that plaintiff has purchased the suit 19/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, scheduled “A” property from defendant No.4 under Ex.A1. Therefore it is held that plaintiff has purchased the suit scheduled “A” property from the defendants.
18.Now, coming to the possession of the plaintiff over the suit scheduled “A” property. The plaintiff as PW1 got marked Ex.A1 to
Ex.A35, among the said documents Ex.A1 is the sale deed under which he became the owner and possessor of the suit scheduled “A” property.
Ex.A2 is the mutation proceedings dated 21-01-1997 standing in his favour showing his ownership and possession over the suit scheduled “A” property. So also Ex.A3 which is the pattedar passbook. The document Ex.A5 to Ex.A19 are the pahanies for the year 1996-97, 1997- 98, 1998-99, 1999-2000, 2000-2001, 2001-02, 2002-03, 2003-04, 2005- 06, 2007-08, 2008-09, 2009-2010, 2010-2011, respectively which clearly establish the continuous possession of the plaintiff over the suit scheduled “A” property till the filing of the suit. The Ex.A23, to Ex.A35 are also pahanies in respect of suit scheduled-A property. These documents pertains to the year which are subsequent to filing of the suit, they also establish the possession of the plaintiff over the suit scheduled-A property. These documents Ex.A1 to Ex.A35 though disputed by the defendants in the pleadings but they remained unchallenged and unrebutted in the cross-examination of PW1. So the 20/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, documentary evidence produced by the plaintiff clearly proves and establish his possession over the suit scheduled-A property. On the other hand the defendant No.3 as DW1 got introduced Ex.B1 to Ex.B5.
The document Ex.B1 is the sale deed executed by defendant No.4 in favour of defendant No.1 to 3. The documents Ex.B2 and Ex.B3 are pahanies showing defendant No.4 as pattedar of land in Sy. No.593/A4 to an extent of Ac.05-05gts of land. The document Ex.B2 is pahani for the year 1997-98. This document show the defendant No.4 also as pattedar and possessor of land admeasuring Ac.0-26gts in the suit survey number and also Ex.B3 shown defendant No.4 as the owner of person of land in Sy. No. 593/AA4 admeasuring Ac.5-05gts and also pattedar and possessor in Sy. No.593/AA admeasuring only Ac.0-20gts of land. The document Ex.B4 and Ex.B5 shows that the defendant No.4 had land to an extent of Ac.04-11gts and thereafter this was corrected to
Ac.0-26gts of land. The correction made in Ex.B4 and Ex.B5 does not have any proceedings number under which the correction was made.
There is no signature of the person across the correction who made it.
Further the pahani under Ex.B3 show that defendant No.4 is having only
Ac.0-20gts of land which is lesser than the land shown in Ex.B4 and
Ex.B5. It is pertinent to mention that when defendant No.4 had land only to an extent of Ac.05-05gts in Sy. No.593; then how come the pahanis under Ex.B2 and Ex.B3 reflects that defendant No.4 has more land than 21/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
Ac.05-05gts of land in Sy. No.593. The documentary evidence produced by the defendants under Ex.B2 to Ex.B5 are very much inconsistent.
Therefore the documents of defendants cannot be relied and the case of the defendants cannot be believed. The Ex.B4 and Ex.B5 are pattedar passbook and title deed respectively. These documents shows that the defendant No.4 as pattedar of land in Sy. No. 593/A to an extent of
Ac.04-11gts the extent was later rounded up and written as Ac.00-26gts.
If these documents are perused nowhere these documents show as to how the defendant No.4 has put the defendant No.1 to 3 into possession of the Ac.00-26gts of land. In the Ex.B1 it is mentioned that defendant
No.4 has handed over the possession of the scheduled property of the counter claim. First of all the defendant No.4 has no document to believe his possession over counter-claim property. Under such circumstances defendant No.4 putting the defendant No.1 to 3 in possession of such property cannot be believed. Moreover the defendants have pleaded that the plaintiff have thrown them out of the scheduled property of the counter-claim and prayed to put them into possession of the said property. The defendants could not prove the existence and their possession over the counter-claim scheduled property. Hence they cannot claim the relief of possession of such property.
22/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
19.The above discussion clearly establish that the plaintiff after purchasing the suit schedule-A property under Ex.A1 from the defendant
No.4 become the owner and possessor of the said property and the mutation proceedings under Ex.A2 confirms the title and possession of the plaintiff over the suit schedule-A property and that the pahanies under Ex.A5 to Ex.A18 and Ex.A23 to Ex.A26 proves the exclusive possession over the suit schedule-A property. The plaintiff as PW1 in his evidence clearly deposed that the defendants No.1 to 3 on 29-08-2012, 30-08-2012 and on 08-09-2012 tried to interfere into his possession over the suit scheduled-A property. But the defendants could not rebut the said fact when PW1 was cross-examined. Therefore it is held that the plaintiff was successful in proving his title over the suit schedule-A property; the plaintiff was successful in proving his exclusive possession over the suit schedule-A property and also was successful in proving that the defendant No.1 to 3 illegally interfered into his possession over the suit schedule as such the plaintiff is entitled for the relief of declaration declaring him as the owner and possessor of the suit schedule-A property; and the plaintiff is entitled for the relief of perpetual injunction against the defendants. Hence the issue No. 1, 2, 4 and 7 are answered in favour of plaintiff.
23/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
Issue No.3, 5, 6, 8, 9 and 10:-
3)Whether the suit “B” schedule registered sale deed is sham, fictitious, null and void as alleged by the plaintiff?
5)Whether the contesting defendants No.1 to 3 are entitled for declaration of ownership in respect of Ac.0-26 guntas of land shown in the schedule annexed to written statement along with counter claim as prayed for?
6)Whether the plaintiff occupied Ac.0-26 guntas of land shown in the schedule annexed to the written statement with counter claim under the guise of injunction as alleged by the contesting the defendants ?
8)Whether the plaintiff is entitled for cancellation of “B” schedule document as prayed for?
9)Whether the plaintiff is entitled for perpetual injunction against defendant No.1 to 3 from selling or creating the charge or transferring by sale deeds, mortgage deeds or any type of conveyance deeds in respect of Ac. 0-26 guntas in Sy. No. 593/A/1 at Gajwel covered by plaint “B” schedule document as prayed for?
10)Whether defendant No.1 to 3 are entitled for delivery of possession respect of Ac. 0-26 guntas shown in the schedule annexed to written statement with counter claim as prayed for?
24/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
20.All the above issues are decided together as they are inter-related with each other and also to avoid the reputation of the appreciation of evidence.
21.In this case the defendants have came up with the counter-claim filed along with the written statement claiming that defendant No.4 was owner of land to an extent of Ac.05-05gts of land which he succeeded in partition and on succeeding the same the defendant No.4 has sold the said property to various persons and was left with Ac.00-26gts of land which was sold to defendant No.1 to 3 by defendant No.4; but however under the guise of injunction order the plaintiff has illegally occupied their land as such this counter-claim is filed for the relief of declaring the defendant No.1 to 3 as the owner of the scheduled property of counter- claim and recovery of the same. On the other hand the plaintiff in the written statement to the counter-claim pleaded that as the defendant
No.4 sold out his entire total extent of land in Survey No. 593, before executing thedisputedsale deed under Ex.B1, as such the said sale deed is sham, bogus and non-est in the eye of law; and that all the defendants with dishonest intention has misled the Court.
22.In support of their case the defendant No.3 is examined as DW1 besides examining DWs2 to 4. In the foregoing issues it was held that the evidence of DWs2 to 4 is only to the extent of proving the 25/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, possession of the defendants No.1 to 3 in respect of the counter-claim property. In this case the plaintiff has denied about the existence of counter-claim scheduled property. Under such circumstances the defendants shall prove the existence of Ac.00-26gts of land as on the date executing Ex.B1. It is a proved fact that originally defendant No.4 owned Ac.05-05gts of land in Survey No.593. The plaintiff pleaded that the defendant No.4 out of his Ac.05-05gts of land has sold away Ac.01- 00gts of land to Sri. Gangishetty Balaiah, land to an extent of Ac.03- 39gts to him; Ac.00-06gts of land to Shameem Sulthana; Ac.00-03 ½ gts of land to A. Yellaiah and the remaining land of Ac.00-16 ½ gts of land is covered by road. So, defendant No.4 was not left with any land in
Survey No.593 as such the selling of Ac.00-26gts of land in favour of defendant No.1 to 3 under registered sale deed Ex.B1 does not arise.
23.It is settled principle of law that in a suit for declaration the party claiming title shall prove the case. In this case the defendants by filing counter claim are claiming their title over the scheduled of property shown in the counter-claim. Except Ex.B1 the registered sale deed executed by defendant No.4 in favour of defendant No.1 to 3, there is no any other documentary evidence to believe that defendant No.4 was left with Ac.00-26gts of land. The defendants denied about defendant No.4 selling property to Shameem Sulthana out of Ac.05-05gts of land, but 26/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, the eastern boundary of the counter-claim property itself is sufficient to believe that Shameem Sulthana owned land in Survey No.593, after defendant No.4 succeeding Ac.05-05gts of land under Ex.A20. This clearly establishes that defendant No.4 sold land in Sy. No.593 to
Shameem Sulthana. Moreover, the defendants in their written statement admitted about defendant No.4 selling away land to Gangishetty Balaiah and Shameem Sulthana. Though the defendants pleaded that originally the PWD road was of 50 feet and subsequently it was widened to 100 feet road but there was no any such evidence led to believe the said fact. The foregoing factors clearly show that the defendant No.4 after succeeding Ac.05-05gts of lands has sold away land to an extent of
Ac.01-00gts to G. Balaiah, to Shameem Sulthana to an extent of Ac.00- 06gts; land to an extent of Ac.00-03 ½ gts to A. Yellaiah and the extent of Ac.00-16 ½ gts of land in Sy. No.593 is covered with road; under all these circumstances the defendant No.4 being left with Ac.00-26gts of land in Sy. No. 593 does no arise. The defendants failed to establish the existence of land to an extent of Ac.00-26gts in Sy.No. 593. In the foregoing issues it is concluded that the documents under Ex.B2 to
Ex.B5 are so inconsistence with each other and contrary to the pleadings made in counter-claim they cannot be relied upon the same was decided in the foregoing issue. Moreover, the crucial point in this case is that the defendant No.4 is the vendor of the suit scheduled “A” 27/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, property and the defendant No.4 has sold the same to plaintiff. Under such circumstances the defendant No.4 basic duty is to come forward and deposed that after selling the suit scheduled “A” property to the plaintiff he was left with Ac.00-26gts of land but defendant No.4 did not do so, which show that the defendants did not approach the court with clean hands. The above discussion shows that all the circumstances put together shows that the defendants failed to show the existence of
Ac.00-26gts of land in Sy. No. 593.
24.Once it is concluded that the defendant No.4 was not left with
Ac.00-26gts of land in Sy. No.593; then the defendant No.4 has no right to sell the counter-claim scheduled property to defendant No.1 to 3 under Ex.B1. Hence Ex.B1 is declared as a void document. As the defendants failed to prove the existence of Ac.00-26gts in Sy. No. 593 then the defendant No.4 putting the defendant No.1 to 3 in the possession of the counter-claim scheduled property does not arises. No doubt DWs2 to DW4 chief-examination speaks about the possession of the defendant No.1 to 3 over the counter-claim scheduled property, but their evidence is oral evidence, there is no documentary evidence to believe that the defendant No.1 to 3 were cultivating counter-claim scheduled property by growing cotton crops over it; nor there is any documentary evidence to believe that there was a boundary erected 28/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, around the Ac.00-26gts of counter-claim scheduled property. The defendants failed to prove the existence of counter-claim property; as such it is held that DWs1 to DW4 are speaking false about the possession of the defendant No.1 to 3 over such property. Hence the oral evidence of DWs2 to DW4 cannot be believed. Once the defendants failed to prove the possession of defendant No.1 to 3 over the counter- claim scheduled property then the question of plaintiff dispossessing the defendant No.1 to 3 from such property does not arise and further the defendants are not entitled for recovery of possession of such property which does not exist. All these factors show that the defendants No.1 to 3 are not entitled to declare themselves as owner of the counter-claim scheduled property; nor they are entitled for recovery of possession of the said property.
25.Coming to the issue whether the plaintiff is entitled for the relief of perpetual injunction over the suit scheduled “A” property. The defendant
No.3 as DW1 in his cross-examination clearly admitted about the defendant No.4 selling the suit schedule-A property to plaintiff. The said fact is further confirmed by the document produced by the plaintiff under
Ex.A1. The possession of the suit scheduled “A” property is proved by the plaintiff by introducing the documents under Ex.A2 to Ex.A35. These documents remained unchallenged and unrebutted by the defendants.
29/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
These aspects clearly shows the possession of plaintiff over the suit scheduled “A” property. Further, there is dispute regarding the defendants having the suit scheduled “A” property (to an extent of Ac.00- 26gts) of land over it. The plaintiff categorically pleaded that the defendants No.1 to 3 on 29-08-2012, 30-08-2012 and 08-09-2012 along with their henchmen tried to interfered in his possession over the suit scheduled “A” property. The plaintiff as PW1 led evidence on this point, but the defendants did not choose to rebut the said fact. Moreover there is serious dispute regarding the title in this case. Therefore it is believed defendant No.1 to 3 interfered into the peaceful possession of the plaintiff over the suit scheduled “A” property as such plaintiff is entitled for the relief of perpetual injunction against defendant No.1 to 5. The above discussion also shows that there is no existence of counter-claim scheduled property as such the question of defendant No.1 to 3 creating any charge or seeing the property does not arise. Therefore the Issue
No.5, 6 and 10 are decided against the defendants and the Issue No.8 and 9 are decided in favour of plaintiff holding that the suit scheduled “B” document as null and void, and the defendants are perpetually restrained from interfering into the peaceful possession of the plaintiff over the suit scheduled “A” property. The Issue No.8 is framed for cancellation of suit scheduled “B” document, but the relief of cancellation can be sought only by the person who is party to the document, but the 30/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet, plaintiff is not a party to scheduled “B” document as such he cannot seek the relief of cancellation of the document. However the issue No.3 is decided in favour of plaintiff holding the suit scheduled “B” document as null and void. Once the document is declared as null and void, further it cannot be cancelled. Accordingly the issue No.8 is decided.
26.Result:- In the result, the suit of the plaintiff is decreed with costs declaring the plaintiff as owner and possessor of suit schedule plaint “A” (property); further the defendants are perpetually restrained from interfering into the peaceful possession and enjoyment of the plaintiff over the plaint schedule “A” property and the registered sale deed vide document No.5123/2012 dated 30-07-2012 covered under "B" schedule property is declared as null and void. The counter claim of the defendants is dismissed with costs.
Dictated to Stenographer, transcribed by him, corrected and pronounced
by me in open court on this the 16 th day of October, 2024.
ADDL. SENIOR CIVIL JUDGE,
SIDDIPET
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF DEFENDANTS
PW1 : Akula MallappaDW1 : Bashini Koteshwar Rao PW2 : Mohd. Hameed KhanDW2 : Surna Konda Pochaiah DW3 : Jangam Venkata Goud DW4 : Dara Ashok 31/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
EXHIBITS MARKED FOR
PLAINTIFF
Ex.A1Original registered sale deed No. 1343/1996 dated 10-04-1996 Ex.A2Mutation proceedings dated 21-01-1997 Ex.A3Original pattadar passbook Ex.A4Original registered sale deed No. 657/2005 dated 04-02-2005 Ex.A5CC of pahani for the year 1996-97 Ex.A6CC of pahani for the year 1997-98 Ex.A7CC of pahani for the year 1998-99 Ex.A8CC of pahani for the year 1999-2000 Ex.A9CC of pahani for the year 2000-01 Ex.A10 CC of pahani for the year 2001-02 Ex.A11 CC of pahani for the year 2002-03 Ex.A12 CC of pahani for the year 2003-04 Ex.A13 CC of pahani for the year 2005-06 Ex.A14 CC of pahani for the year 2006-07 Ex.A15 CC of pahani for the year 2007-08 Ex.A16 CC of pahani for the year 2008-09 Ex.A17 CC of pahani for the year 2009-10 Ex.A18 CC of pahani for the year 2010-11 Ex.A19 CC of sale deed No.5123/2012 dated 30-07-2012 Ex.A20 CC of registered partition deed No.1102/1985 dated 20-04-1985 with fair copy. Ex.A21 CC of sale deed No.1912/1987 dated 29-06-1987 Ex.A22 CC of sale deed No. 420/2005 dated 27-01-2005 Ex.A23 Meeseva pahani for Fasli year 1420 in respect of Sy.No.593/A2 to extent of Ac.3-25gts dated 20-06-2017 Ex.A24 Mee seva pahani for the Fasli year 1421 in respect of land in Sy.No.593/A2 to extent of Ac.3-25gts dated 20-06-2017 Ex.A25 Mee seva pahani for the Fasli year 1423 in respect of land in Sy.No.593/A2 to extent of Ac.3-25gts dated 20-06-2017 Ex.A26 Mee seva pahani for the Fasli year 1424 in respect of land in Sy.No.593/A2 to extent of Ac.3-25gts dated 20-06-2017 Ex.A27 Mee seva pahani for the Fasli year 1425 in respect of land in Sy.No.593/A2 to extent of Ac.3-25gts dated 20-06-2017 Ex.A28 Mee seva pahani for the Fasli year 1426 in respect of land in Sy.No.593/A2 to extent of Ac.3-25gts dated 20-06-2017 32/32 O.S. No.160/2012 Addl. SCJ Court, Siddipet,
Ex.A29 Mee seva pahani for the Fasli year 1420 in respect of land in Sy.No.590/Aa/1 to extent of Ac.0-14gts dated 20-06-2017 Ex.A30 Mee seva pahani for the Fasli year 1421 in respect of land in Sy.No.590/Aa/1 to extent of Ac.0-14gts dated 20-06-2017 Ex.A31 Mee seva pahani for the Fasli year 1422 in respect of land in Sy.No.590/Aa/1 to extent of Ac.0-14gts dated 20-06-2017 Ex.A32 Mee seva pahani for the Fasli year 1423 in respect of land in Sy.No.590/Aa/1 to extent of Ac.0-14gts dated 20-06-2017 Ex.A33 Mee seva pahani for the Fasli year 1424 in respect of land in Sy.No.590/Aa/1 to extent of Ac.0-14gts dated 20-06-2017 Ex.A34 Mee seva pahani for the Fasli year 1425 in respect of land in Sy.No.590/Aa/1 to extent of Ac.0-14gts dated 20-06-2017 Ex.A35 Mee seva pahani for the Fasli year 1426 in respect of land in Sy.No.590/Aa/1 to extent of Ac.0-14gts dated 20-06-2017
EXHIBITS MARKED FOR
DEFENDANTS
Ex.B1 Registered sale deed document No.5123/2012 executed by Waheeduddin Khan (D4) in favour of Defendant No.1 to 3 Ex.B2 CC of pahani for the year 1997-98 Ex.B3 CC of pahani for the year 2010-11 Ex.B4 Original title deed of defendant No.4 Ex.B5 Original patta passbook of defendant No.4
ADDL. SENIOR CIVIL JUDGE,
SIDDIPET.