Mohideen Zamruth Begum Kamaludeen, AJCJ

O.S.No.291 of 2008 1 Addl. Junior Civil Judge Court, Penukonda

IN THE COURT OF THE ADDL. JUNIOR CIVIL JUDGE, PENUKONDA

Present: Smt.K.M.Zamruth Begum, Addl. Junior Civil Judge, Penukonda.

Thursday, the 09th day of May, 2019

O.S.No. 291 of 2008

Between:

1. Gorantla Aswarthamma, W/o.G.Chowdi Reddy, Age 75 years,

2. Gorantla Somasekhar Reddy, S/o.G.Chowdi Reddy, Age 54 years, Both are Hindus, Agriculturists, Gorantla Village and Mandal. The plaintiff No.1 died on 06-04-2016 leaving the registered will in favour of the plaintiff No.2.

…Plaintiffs -Versus-

1. Nagalakshmamma, W/o.Madhusudhan Reddy, Age 58 years, Hindu, Agriculturist, Korepalli, Peresandra Post, Mandeka Taluk, Chickballapur, Karnataka State.

2. Chandrasekhar Reddy, S/o.Narayana Reddy, Age 50 years, Hindu, Agriculturist, Near Ramu mess, Gorantla Village and Mandal. ….Defendants

This suit is coming on 28-02-2019 final hearing before me in the presence of Sri R.Sreekanth Reddy, advocate for plaintiffs and Sri D.V.Siva

Reddy and V.Dharamendra Reddy, advocates 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 claim for perpetual injunction restraining the defendants from interfering with his peaceful possession and enjoyment over the suit schedule property.

2)The Defendant No. 2 have resisted the suit through his written statement.

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3)The quintessence of the plaintiff’s case is that:

A) Gorantla Narayana Reddy and Gorantla Chowdi Reddy are brothers and they are sons of Chinna Nagi Reddy. The defendant No.1,

Shanthamma and Gowramma are the daughters of Gorantla Narayana Reddy and the plaintiff No.1 is the wife, plaintiff No.2 is the son, Bhagyamma and

Bharathamma are the daughters of Gorantla Chowdi Reddy. Gorantla Narayana

Reddy and Gorantla Chowdi Reddy divided their properties by meets and bounds about 50 years ago under oral partition. The Gorantla Chowdi Reddy got the plaint schedule properties and some other properties for his share in partition between him and his brother Gorantla Narayana Reddy.

B) It is further averred in the plaint that Gorantla Chowdi Reddy, the husband of the plaintiff No.1 and the father of the plaintiff No.2, in sound state of health and mind with his free and volition bequeathed all his properties to his wife under registered will dated 27-01-1970. As per that will his wife i.e., plaintiff No.1 has to enjoy all his properties with limited rights during her life time than after death of his wife i.e. plaintiff No.1, the plaintiff No.2 has to enjoy the properties of

Gorantla Chowdi Reddy with absolute rights. The said Gorantla Chowdi Reddy died in the year 1975. After the death of Gorantla Chowdi Reddy, the will dated 27-01-1970 took effect. The will was properly attested by two attesters and the original will was lost, hence registration extract copy is filed. The plaintiffs have been in possession and enjoyment of the plaint schedule properties along with other properties by virtue of the will dated 27-01-1970. Bhagyamma and

Bharathamma who is the daughter of said Gorantla Chowdi Reddy had or have no objection to execute will infavour of plaintiffs by Gorantla Chowdi Reddy.

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C) It is also further averred in the plaint that the plaintiffs have been raising crops in the plaint schedule properties without any interruption from any body including the defendants. The defendants have no rights in the plaint schedule properties and the defendant No.1 is the daughter of Senior paternal uncle of plaintiff No.1 and she is in possession of properties fell to the share of her father in her own right. The defendant No.2 is the absolutely stranger to the plaint schedule properties and the defendant No.1 with the support of defendant No.2 is causing obstruction to the possession and enjoyment of the plaint schedule properties. The name of the plaintiff No.2 was mutated in Revenue Records as owner of the plaint schedule properties. The defendants are very powerful in the village, they are being supported by the political leaders and threatening the plaintiffs to disposes the plaintiffs from the plaint schedule property and the threats of the defendants are real and imminent.

4)Brief averments of the written statement filed by the defendant No.2;

A) The defendant No.2 admitted that Gorantla Narayana Reddy and Gorantla Chowdi Reddy are brothers and they are sons of Chinna Nagi

Reddy. He further admitted that the defendant No.1, Shanthamma and

Gowramma are the daughters of Gorantla Narayana Reddy and the plaintiff

No.1 is the wife, the plaintiff No.2 is the son, Bhagyamma and

Bharathamma are the daughters of Gorantla Chowdi Reddy. Defendant No.2 denied all other allegations made in the plaint filed by the plaintiffs and submits that the alleged will did not reveal any description of the property and the plaintiffs suppressed the facts and filed this suit for wrongful gain on the basis of self-styled registered will.

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B) The defendant No.2 further submits that as can be seen the true copy of Re-Settlement register furnished by the Tahsildar, Gorantla discloses that the plaint schedule property stands in the name of Chinna

Nagi Reddy Gari Chowdi Reddy and Chinna Nagi Reddy Gari Narayana

Reddy, minors and their guardian Nagamma is pattadar. Both the said two brothers got equal share i.e., Ac. 0-39 cents each in the suit schedule survey numbers. The father of the defendant No.1 mortgaged his share i.e., Ac. 0- 39 cents to Government under document No.1186/1981 and the said

Narayana Reddy exercised his rights over Ac. 0-39 cents under terms of mortgaged to Government. After death of Narayana Reddy, his share of properties devolved upon his three daughters i.e., Defendant No.1,

Santhamma and Gowramma and the said three sisters were living separately in their father in law houses. As per enjoyment and possession of the defendant No.1 and her two sisters, the Tahsildar, Gorantla issued pattadar passbook in favour of defendant No.1 over Ac.0-39 cents under patta No.541 as per R.O.R. Act. The defendant No.1 got half share in the plaint schedule property with consent of other two sisters and she has been in possession and enjoyment over Ac. 0-39 cents of land in the plaint schedule survey number without any objection or obstruction by anybody including the plaintiffs and she raising the paddy crop by her own right till sale deed

dated 30-05-2008.

C) The defendant No.2 also further submits that the defendant

No.1 conveyed to an extent of Ac. 0-39 cents in plaint schedule survey number to defendant No.2 under registered sale deed dated 30-05-2008 and delivered possession of the same to defendant No.2 on the date of sale deed

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itself. Since then the plaintiffs have been grudged against the defendants and filed suit for wrongful gain without any right, title or possession over the suit schedule property. The defendants further submits that the defendant No.2 is co-owner with plaintiffs. It is established law that the co- owner cannot get injunction against other co-owner. The defendant No.2 got to an extent Ac. 0-39 cents in the suit schedule property and he got right, right over Ac. 0-39 cents out of Ac. 0-78 cents in the suit survey number 358-4 and since the date of sale deed the defendant No.2 has been in peaceful possession and enjoyment over an extent of Ac. 0-39 cents as his won right. Hence they prayed to dismiss the suit with costs.

5)In view of rival contentions referred above, the following issues were settled for trial.

1. Whether the defendant No.2 is co-owner?

2. Whether the plaintiff No.1 is in possession and enjoyment of the suit schedule property?

3. Whether the suit can be decreed as prayed for?

4. If so, to what relief?

6)Perused the written arguments filed by the both counsels.

7) Synaptic outline of evidence of both parties is as follows:

Plaintiff side evidence:

PW-1:Plaintiff No.2 was examined asPW-1. PW-1 in his chief examination affidavit reiterated same facts mentioned in the plaint and he got marked Ex.A-1 to A-5. During the course of cross examination PW-1 stated that his grandfather name is Chinna Nagi Reddy and he has got two sons by name

Narayana Reddy and Chowdi Reddy. He further stated that he do not know the name of the wife of Narayana Reddy, the wife of Narayana Reddy is his senior

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paternal aunt and she got three children by name Nagalkshmamma (D-1),

Santhamma and Gowramma. He further stated that his father got two children himself and two daughters namely Soubhagyamma and Parvathamma and his father died in the year 1975 and he did not file death certificate showing that his father died in the year 1975. He further stated that plaintiff No.1 is his mother and she died on 6-4-2016 and he did not file any death certificate of Plaintiff No.1, but filed memo stating the same fact to the court. PW-1 further stated in his cross examination that he had not filed original will, as he have lost the same. PW-1 admitted that there is no mention of survey number in the will Ex.A-1. He further admitted that his senior paternal uncle mortgaged the suit schedule property in the year 1981 in Co-operative Society, Gorantla. He further admitted that the defendant No.1 executed a registered sale deed in favour of defendant No.2 in that sale deed. He further admitted that his father Chinna Nagireddygari Chowreddy,

Chinna Nagreddygari Narayanareddy and their mother Nagamma were the diglot pattadars as per diglot. PW-1 further admitted in his cross examination that he worked as V.R.O. in Gownivaripalli village. He further admitted that though the passbook issued to the defendant No.1, but there is no mention of unique number and round seal of the office. He further admitted that the defendant No.1 was granted adangal for fasli 1417. PW-1 denied the suggestion that the father of the defendant No.1 got half share in plaint schedule survey No.358/4 and as he worked as V.R.O., he manipulate Ex.A-3 to A-5. The counsel for the defendants put a suggestion to PW-1 that the defendant No.1 has not right to sell the suit schedule property to defendant No.2 and as the father of defendant No.1 has no male issues, he filed the suit to knock away the plaint schedule property.

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PW-2: The son of the plaintiff No.2 was examined as PW-2. PW-2 filed his chief examination affidavit and submit that the plaintiff No.2 is his father, he is only son of his father and the plaintiff No.2 are resideing jointly and enjoying the plaint schedule property. He further submit that they constructed a shed in the plaint schedule property and the plaintiff schedule property is an extent of Ac. 0- 78 cents. He further submit that the name of his father alone was mutated in revenue records as per the will executed by his grand father and as himself and plaintiff No.2 are enjoying the plaint schedule property, the Tahsildar, Gorantla was mutated his name for an extent of Ac. 0-39 cents and the name of his father for an extent of Ac. 0-39 cents out of Ac. 0-78 cents as shown plaint schedule property in 1-B Namoona and Adangal along with other properties. He further submit that the defendants have no right or possession over the plaint schedule property and he and his father plaintiff No.2 have been in actual physical possession of the entire plaint schedule property.

During the course of cross examination PW-2 stated that his father did not execute any document respect of Ac. 0-39 cents out of plaint schedule property in his favour. He further stated that he do not know whether defendant No.1 sold

Ac. 0-39 cents out of plaint schedule property in favour of Defendant No.2 and his father filed suit about 10 years ago. He further stated that he do not know whether defendant No.2 issued notice to his father in respect of the suit schedule property on 9-1-2015 and he do not know the name of defendant No.1 was mutated in

Revenue records for the Fasli 1417. He further stated that he do not know whether the defendant No.1 was granted pattadar passbook in respect of Ac. 0-39 cents out of plaint schedule property and he was issued Ex.A-3 to A-5 during the pendency

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of this court. PW-2 denied all the suggestion made by the counsel for the defendants.

PW-3: R.Bhaskar Reddy third party to the suit and adjacent land owner of the plaint schedule property was examined as PW-3. PW-3 filed his chief examination affidavit and submit that he know both parties to the suit and the plaintiff No.2/PW-1 and his son PW-2 are enjoying the plaint schedule property by raising crops in the plaint schedule property jointly. He further stated that himself and K.Natappa have own and possess the lands on southern side of the plaint schedule property. PW-3 further stated that the defendant have no right or possession over the plaint schedule property and the plaintiff No.2 and his son have been in actual physical possession of the entire plaint schedule property. During the course of cross examination PW-3 stated that he do not know whether news published in a paper stating that revenue authorities of Gorantla manipulated the records and he own land in Sy. No.359/10 in Gorantla fields. He further stated that he do not know the contents of his chief affidavit. PW-3 denied the suggestion that he do not know anything and he is deposing false evidence to help the plaintiff.

8) Defendants side evidence:-

DW-1: Defendant No.2 was examined as DW-1 and reiterated facts mentioned in his written statement and got marked Ex.B-1 to B-4. Ex.B-1 is the true copy of Re-settlement register issued by Tahsildar, Gorantla, dated 13-08-2008, Ex.B-2 is the E.C.No.1332/2008 issued by S.R.O, Chilamathur, dated 18-08-2008, Ex.B-3 is the Adangal Pahani for Fasli 1417 under 1-B in the name of defendant No.1 and Ex.B-4 is the Sale deed dated 30-05-2008 in the name of defendant No.2. During the course of cross examination DW-1 admitted that the total extent of suit schedule property is Ac. 0-78 cents, he enquired defendant No.1

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about suit schedule property prior to purchase of the Ac. 0-39 cents out of Ac. 0-78 cents and he purchased Ac. 0-39 cents out of Ac. 0-78 cents from the defendant

No.1 on 30-05-2008. He further admitted that as on 4-8-2008, the plaint schedule property stands in the name of plaintiff No.2 Somasekhar Reddy as per Ex.A-2.

DW-1 stated that he have seen that the father of the defendant No.1 was in possession of Ac. 0-39 cents out of plaint schedule property and he have not filed any document to show that the father of D-1 was in possession of Ac. 0-39 cents out of plaint schedule property. He further stated that the defendant No.1 inducted him in possession of Ac. 0-39 cents out of plaint schedule property, but he have not filed any document to show that he have been in possession of Ac. 0-39 cents out of plaint schedule property. DW-1 further stated that he have not filed any document to show that he have been in possession of Ac. 0-39 cents out of plaint schedule property and he filed passbook showing Ac. 0-39 cents stands in the name of defendant No.1 and he filed photocopy of pass book because defendant No.1 is having other properties along with Ac. 0-39 cents and she refused handover the same. He admitted that defendant No.1 has two sisters by names Santhamma and

Gowramma and as the sisters of defendant No.1has no title over Ac. 0-39 cents out of plaint schedule property, as such he did not obtain sale deed from sisters of defendant No.1. DW-1 further admitted that the R.D.O., Penukonda did not take any action regard to pattadar passbook and title deed issued in the name of the plaintiff and his son. He voluntarily stated that as suit is pending before the

Hon’ble Court with regard to injunction the R.D.O., Penukonda did not take any

action. He stated that he know the plaintiffs filed Ex.A-1, but Ex.A-1 does not contain any survey number. He further stated that he do not know whether

Narayana Reddy father of defendant No.1 was given 10-1 Chitta AC. 0-14 cents in

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Sy.No.359-11, Ac. 0-19 cents in Sy.No. 359-12, Ac. 0-46 cents inSy.No.349-5, Ac.

0-18 cents in Sy.No.346-9 and Ac. 0-12 cents in Sy.No.346-1. Except that the

DW-1 denied all the suggestions made by the counsel for the plaintiffs.

9).DW-2: The defendant No.1 was examined as DW-2 and filed chief examination affidavit. In her chief examination affidavit she submits that her father and her junior paternal uncle are pattadars of suit schedule under Ex.B-1 and both of them got equal share in the suit schedule property i.e., Ac. 0-39 cents each.

She further submit that her father mortgaged his ½ share i.e., Ac. 0-39 cents in

Sy.No. 354-4 to Co-operate society for Rs. 3,000/- under Ex.B-2 and after death of her father, she discharged the said loan amount. After death of her father, she had and have been in possession and enjoyment of ½ share of her father i.e., Ac. 0-39 cents in Sy.No.358-4 by raising paddy crop in her own right. Towards her eastern side of Ac. 0-39 cents, the plaintiffs got Ac. 0-39 cents in the suit schedule and the plaintiffs never objected at any time for raising paddy crops in Ac. 0-39 cents till 2008. DW-2 further stated that the revenue authorities also mutated her name in records and she obtained loan on the deposit of her pattadar passbook and title deed. Adangal and 1-B are in her name and raised the paddy in Ac. 0-39 cents under Ex.B-3. DW-2 further submit that she sold her Ac. 0-39 cents in Sy.No.358- 4 to defendant No.2 for valid consideration of Rs. 10,000/- with specific boundaries as per her peaceful possession under registered sale deed dated 30-05- 2008 under Ex.B-4 and delivered physical possession to him on the date of sale deed itself. She further submit that the plaintiffs had or have no right over Ac. 0-39 cents of suit survey number and the plaintiff No.2 and his father worked as Village

Revenue Officers, hence they created revenue records in their names with an intention to defraud her rights and prays for dismissal of the suit with costs.

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During the cross examination she stated that she did not file written statement in this suit. DW-2 admitted that her father Narayana Reddy and the father of the plaintiff No.2 Chowdi Reddy are brothers and plaintiff No.1 is the wife of Chowdi Reddy and the plaintiff No.2 is alone son of plaintiff No.1. She further admitted that her father was granted 10-1 Chitta Ac. 0-14 cents in

Sy.No.259-11, Ac. 0-19 cents in Sy.No.359-12, Ac. 0-46 cents in Sy.No.349-5,

Ac. 0-18 cents in Sy.No.346-9 and Ac. 0-12 cents in Sy.No.346-1. DW-2 further stated that she do not know whether the father of the plaintiff obtained loan on security of plaint schedule property and Ac. 0-40 cents in Sy.No.262-2, Ac. 0-59 cents in Sy.No.348-5 and she do not know whether her father obtained loan on security of Ac. 0-36 cents in Sy.No.346-9, Ac. 0-45 cents in Sy.No.349-5, Ac. 0-14 cents in Sy.No. 359-11. DW-2 voluntarily says that her father obtained loan on mortgage of the suit schedule property. She further stated that she do not know the properties including the plaint schedule property which were given 10-1 are transferred in the name of plaintiff in T.A.Dis.No.1186/88, dated 22-9-1978 and she do not know from the date of transfer the plaint schedule property stands in the name of plaintiff. DW-2 voluntarily stated that the plaintiff No.2 and his father were also worked as V.R.Os., and they might be created any revenue records with regard to the joint family property. She further stated that the eastern boundaries for the Ac. 0-39 cents of defendant No.2 is the land of plaintiff No.2 Ac. 0-39 cents in the same suit survey number, Western boundary land of Pula Adimurthy,

Northern boundary is land of Vysyas and southern boundary is land of

Lakshmamma. She further stated that she do not remember the attesters of the sale deed executed by her in favour of defendant No.2. She again says that that her daughter Nagaveni and one Byrappa attested the sale deed Ex.B-4. She further

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stated that she did not hand over any revenue record to the defendant No.2 to show that she was cultivating the Ac. 0-39 cents in the plaint schedule property.

10. POINTS 1 TO 4: As the points 1 to 4 are interrelated and interdependent and as such they are taken up together for simultaneous discussion to avoid redundancy.

11)The claim of the plaintiffs in nutshell:

Gorantla Narayana Reddy and Gorantla Chowdi Reddy are sons of

Chinna Nagi Reddy. The Defendant No.1, Shanthamma and Gowramma are the daughters of Gorantla Narayana Reddy. The plaintiff No.1 is the wife, the plaintiff

No.2 is the son, Bhagyamma and Bharathamma are the daughters of Gorantla

Chowdi Reddy. Gorantla Narayana Reddy and Gorantla Chowdi Reddy divided their properties by meets and bounds about 50 years ago under oral partition.

Gorantla Chowdi Reddy got the plaint schedule properties and some other properties for his share in partition between him and his brother Gorantla

Narayana Reddy. Gorantla Chowdi Reddy, the husband of the plaintiff No.1 bequeathed all his properties to his wife under registered will dated 27-01-1970 with limits rights during her life time that after death the plaintiff No.2 has to enjoy with absolute rights. After the death of the Gorantla Chowdi Reddy the will

dated 27-01-1970 took effect and the will was properly attested by two attesters.

The original was lost and registration extract copy is filed. Bhagyamma and

Bharathamma the daughters of Gorantla Chowdi Reddy had or have no objection to execute will in favour of plaintiffs. The plaintiffs have been raising crops in the plaint schedule properties without any interruption from any body including the defendants. The defendant No.1 is the daughter of Senior paternal uncle of plaintiff No.1 and she is in possession of properties fell to the share of her father in

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her own right. The defendant No.2 is the absolutely stranger to the plaint schedule property.

12)In order to prove their claim, Plaintiff No.2, son of the plaintiff

No.2by name G.S.Chandu and third party to the suit by name R.Bhaskar Reddy was examined asPW1,PW2 and PW3 respectively and Ex.A-1 to Ex.A-5 were marked through plaintiff No.2/PW-1.

13)Ex.P-1 is the registration extract of the will dated 27-01-1970 executed by Chowdi Reddy in favour of the plaintiff No.1. As can be seen from the Ex.A-1 registration extract of will deed, there is no description of the property and there is a mention that the share of the Gorantla Chowdi Reddy is bequeathed to his wife through Ex.A-1. Ex.A-2 is the 10-1 showing the name of Somasekhar by rounding the name Chinna Nagireddygari Chowdi Reddy and mentioning wife

Aswarthamma son and the date of its issue as signed by the Tahsildar, Gorantla

dated 4-8-2008. As per will Ex.A-1 the Gorantla Chowdi Reddy bequeathed

executed will in favour of plaintiff No.1 with limited rights during her life time and after her death, the property devolves upon his son plaintiff No.2 and the Ex.A-2 shows during the life time of plaintiff No.1, the plaintiff No.2 has changed to his name which is against the Ex.A-1 will. During the pendency of the suit, the plaintiff No.1 Aswarthamma died in the 2016. Ex.A-3, A-4 and A-5 shows that the plaint schedule property Sy.No.358-4 to an extent Ac. 0-39 cents is in the name of plaintiff No.2 and to an extent of Ac. 0-39 cents in the name of son of plaintiff

No.2 G.S.Chandu. The date of Ex.A-3 to A-5 is 18-04-2015. As per the Ex.A-1 will property devolves upon plaintiff No.2 only after the demise of plaintiff No.1, but Ex.A-3 to A-5 shows prior to the death of plaintiff No.1. Plaintiff No.2 and his son G.S.Chandu transferred the property in their names which shows that they

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have influenced the revenue authorities to get the same. The genuinity of Ex.A-2 to A-5 are suspicious and gain no confidence of the court.

14)Plaintiff No.2 was examined as PW-1. PW-1 in his cross examination admitted that his senior paternal uncle mortgaged the suit schedule property in the year 1981 in Co-operative Society Limited and he further admitted that the defendant No.1 executed a registered sale deed in favour of defendant No.2 in that sale deed he was shown as Eastern boundary holder. He also admitted that his father Chinna Nagireddygari Chowreddy, Chinna Nagireddygari Narayana Reddy and their mother Nagamma were the diglot pattadars as per diglot. He further admitted that he worked as V.R.O., in Gownivaripalli village and he also admitted that though the passbook issued to the defendant No.1, but there is no mention of unique number and round seal of the office and defendant No.1 was granted adangal for fasli year 1417.

15)The son of plaintiff No.2/PW-1 was examined as PW-2. PW-2 in his chief examination has submitted that they constructed shed in the plaint schedule properety and the plaint schedule property is an extent of Ac. 0-78 cents and formerly the name of his father was mutated in revenue records as per the will executed by his grand father and as he and his father plaintiff No.2 are enjoying the plaint schedule property, Tahsildar, Gorantla was pleased to mutate his name for an extent of Ac. 0-39 cents and the name of his father for an extent of AC. 0-39 cents out of Ac. 0-78 cents. In his cross examination PW-2 stated that his father did not execute any deed in respect of Ac. 0-39 cents out of plaint schedule property in his favour and he further stated that his father used to work as V.R.O. in

Gownivaripalli village.

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16)One R.Bhaskar Reddy third party to suit was examined as PW-3. PW- 3 submits in his chief examination affidavit that he know both parties to the suit.

The plaintiff No.2 and his son G.S.Chanduare enjoying the plaint schedule property by raising crops in the plaint schedule property jointly and he and

K.Narappa own and possess the lands on southern side of the plaint schedule property. In the course of cross examination PW-3 admitted that he do not know the contents of his chief examination affidavit.

17)Written statement filed on behalf of defendant No.2 and in his written statement and chief examination he admitted that the relationship of Gorantla

Narayana Reddy, Gorantla Chowdi Reddy, plaintiff No.1, plaintiff No.2 and

Defendant No.1, but he denied allegation that the partition took place between

Gorantla Narayana Reddy and Gorantla Chowdi Reddy about 50 years ago under oral partition and submitted that the joint family properties of Gorantla Chowdi

Reddy and Gorantla Narayana Reddy are in joint status, though they were living separately and further submitted that the alleged will did not reveal any description of the property. The father of the plaintiff No.2 was the V.A.O of Gorantla and after Chowdi Reddy, Appireddy was the V.A.O. of Gorantla and the plaintiff No.2 married the daughter of Appireddy. He further submit that the true copy of will

Re-settlement register furnished by Tahsildar, Gorantla that the plaint schedule property stands in the name of Chinna Nagireddygari Chowdi Reddy and Chinna

Nagireddygari Narayana Reddy, minors and their guardian Nagamma is pattadar and both the said two brothers got eqaual share i.e., AC. 0-39 cents each in the suit survey number. He further submit that the father of the defendant No.1 mortgaged his share i.e., Ac 0-39 cents to Government under document No.1186/1981 and the said Narayana Reddy exercised his rights over Ac. 0-39 cents under terms of

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mortgaged to Government. He further submit that after the death of Narayana

Reddy, his share of properties devolved upon his three daughters i.e., Defendant

No.1, Santhamma and Gowramma. The Tahsildar, Gorantla issued pattadar passbook in favour of defendant No.1 over Ac. 0-39 cents under patta No.541 as per R.O.R. act. The sister of Defendant No.1 given up Ac. 0-39 cents in the suit survey number to defendant No.1 and other properties was taken by them. He further submitted that the defendant No.1 conveyed Ac. 0-39 cents in plaint schedule property to defendant No.2 under registered sale deed dated 30-05-2008 and delivered possession of the same to defendant No.2.

18)Defendant No.2 was examined as DW-1. DW-1 in his cross examination admitted that the total extent of suit survey number is Ac. 0-78 cents and he enquired defendant No.1 about suit schedule property prior to purchase of the Ac. 0-39 cents out of Ac. 0-78 cents and he purchased Ac. 0-39 cents out of Ac.

0-78 cents from the defendant No.1 on 30-5-2008 and he admitted that 04-08-2008 as per the Ex.A-2 the plaint schedule property stands in the name of plaintiff No.2 and he have seen the father of the plaintiff No.2 and the father of defendant No.1 and seen the father of the defendant No.2 in possession of 39 cents out of suit schedule property.

19)Defendant No.1 was examined as DW-2. DW-2 in her chief examination affidavit submit that her father and her junior paternal uncle are pattadars of suit schedule under Ex.B-1 and both of them got equal share in the suit schedule i.e., Ac. 0-39 cents each. She further submit that her father mortgaged his half share to Co-operate Society for Rs. 3,000/- under Ex.B-2 and after the death of her father, she discharge the said loan amount and her father and her junior paternal uncle were not divided the joint family properties including the suit schedule till

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their death, but they had in joint status. She further submit that after the death of her father she has been in possession and enjoyment of half share of her father by raising paddy in her own right and towards her eastern side of Ac. 0-39 cents the plaintiffs got Ac. 0-39 cents in the suit schedule and she got 15 to 20 bags of paddy for every year till 2008. She further submit that the revenue accounts also mutated in her name and she obtained loan on the deposit of his pattadar passbook and title deed and she sold her Ac. 0-39 cents in Sy.No. 358-4 to defendant No.2 for valid consideration or Rs. 10,000/- with specific boundaries under registered sale deed

dated 30-05-2008 and delivered physical possession to him on the date of sale deed

itself. She further submit that the Ex.A-1 is no way help to them as her junior paternal uncle had no right over the suit schedule, as her father and her brother were not divide the joint family properties and the suit schedule property is not fell to the share of her junior paternal uncle and it is not joint status. She further submit that her sisters Bagyamma and Bharathamma are not added as parties to the suit. During her cross examination she admitted that she did not file written statement in this suit. She further stated that her sisters were granted separate pattadar passbook for some other land in joint family property and she got granted pattadar passbook in respect of the Ac.0-39 cents out of plaint schedule property.

She admitted that her father was granted 10-2 chitta in respect of property Ac. 0-14 cents in Sy.No.259-11, Ac. 0-19 cents in Sy.No.359-12, AC. 0-46 cents in

Sy.No.349-5, Ac. 0-18 cents in Sy.No.346-9 and Ac. 0-12 cents in Sy.NO. 346-1.

DW-2 further stated that she did not remember the suit survey number, she again says that suit survey no. is 388. She further admitted that her father and her junior paternal uncle partitioned orally. She further stated that the plaintiff No.2 and her father wee also worked as Village Revenue Officers and there might be created

O.S.No.291 of 2008 18 Addl. Junior Civil Judge Court, Penukonda

revenue records to the joint family properties and she further stated that the plaintiff and her sisters are well know about the sale of the suit schedule property to the defendant No.2 and informed to plaintiff No.2 also before selling suit schedule property to Defendant No.2.

20)Plaintiff claim the suit basing on the Ex.A-1 will, but there is no description of the property in the Ex.A-1 will and Ex.A-1 conveys the right over the property belongs to share of Gorantla Chowdi Reddy to his wife i.e., plaintiff

No.1 to enjoy the property till her death and after demise of his wife plaintiff No.1, the property devolves upon his son plaintiff No.2. The plaintiff in order to prove his possession, he has produced Ex.A-3 to A-5 1-B namoos showing the suit schedule property to an extent of Ac. 0-39 cents in his name and to an extent of Ac.

0-39 cents in his son name and the date of issuance of 1-N namoos is 27-05-2015.

As per the Ex.A-1 will the property devolves upon the plaintiff No.2 only upon the death of plaintiff No.1. During the pendency of the suit, the plaintiff No.2 died in the year 2016, so Ex.A-3 to A-5 are stands in the name of plaintiff No.1 and his son

dated 27-05-2015, which gives the impression that the plaintiff No.2 being V.R.O.

has used influence and mutated his name and his son’s name in the revenue records.

21)As per the version of Defendant No.2/Dw-1 he produced Ex.B-1 showing the suit schedule property stands in the name of Chinna Chowdi Reddy and Narayana Reddy minors guardian Nagamma as per diglot and the plaintiff no 2 PW1 in his cross examination has admitted that his Senior Paternal Uncle mortgaged the suit schedule property in the year 1981 in the Co-operative Society,

Gorantla and he further admitted that Defendant No.1 executed a registered sale deed in favour of Defendant No.2 showing him as Eastern boundary holder and

O.S.No.291 of 2008 19 Addl. Junior Civil Judge Court, Penukonda

also admitted that his father chowdi Reddy , Paternal uncle Chinna Narayana

Reddy and their mother Nagamma were diglot pattadars and he worked as V.R.O.

in Gonivaripalli village which is against PW1’S submission that 50 years back his father and his Paternal Uncle divided joint family properties. So, the admitted facts need not be proved, the defendants have successfully disputed the title of the plaintiff. The plaintiff failed to produce proper evidences and explanation with regard to the property shared between his father and his Paternal uncle and thus, the plaintiff failed to remove the clouds made by the defendants over title of plaint schedule of plaintiff.

22)Hence the plaintiff is disentitled to claim for permanent injunction as he failed to seek the relief of declaration of title with proper explanation and satisfactory evidence.

23)In the result, the suit filed by the plaintiffs against the defendants for permanent injunction restraining the defendants interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs is DISMISSED.

But in the circumstances no costs.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the open Court, this the 09 th day of May, 2019.

Addl. Junior Civil Judge, Penukonda

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS: FOR DEFENDANTS:

PW-1: G.Somasekhar Reddy DW-1: G.S.Chandrasekhar Reddy

PW-2: G.S.Chandu DW-2: Nagalakshmamma

PW-3: R.Bhaskar Reddy

O.S.No.291 of 2008 20 Addl. Junior Civil Judge Court, Penukonda

DOCUMENTS MARKED

FOR PLAINTIFFS:

Ex-A-1: Registration Extract of the will executed by G.Chowdi Reddy in favour of the plaintiffs Dated 27-01-2970. Ex-A-2: Certified copy of 10-1 account issued in the name of plaintiff No.2 by the then Tahsildar, Gorantla. Ex.A-3: 1-B extract issued in the name of plaintiff No.2 for Ac. 0-39 cents out of plaint schedule property. Ex.A-4: 1-B extract issued in the name of plaintiff No.1 for Ac. 0-39 cents out of plaint schedule property. Ex.A-5: 1-B extract issued in the name of plaintiffs for entire plaint schedule property, dated 27-05-2015.

FOR DEFENDANTS:

Ex.B-1: True copy of Re-settlement register issued by Tahsildar, Gorantla,

dated 13-08-2008.

Ex.B-2: E.C.No.1332/2008 issued by S.R.O, Chilamathur, dated 18-08-2008. Ex.B-3: Adangal Pahani for Fasli 1417 under 1-B in the name of defendant No.1. Ex.B-4: Sale deed dated 30-05-2008 in the name of defendant No.2.

A.J.C.J.

O.S.No. 116 of 2009 1 Addl. Junior Civil Judge, Penukonda

IN THE COURT OF THE PRL. JUNIOR CIVIL JUDGE:

PENUKONDA

Present:- Smt.K.M.Zamruth Begum,

Addl. Junior Civil Judge, Penukonda

Wednesday, the 12th day of June, 2019.

O.S.No. 116 of 2009

BETWEEN: D.Lakkamma, W/o.Bisappa, Age 55 years, Hindu, Agriculturist, L.Thimmapuram, Roddam Mandal.

...Plaintiff

AND

1. Kuruba Kristappa, S/o.Yellappa, Age 55 years, Hindu, Agriculturist, L.Thimmapuram, Roddam Mandal,

2. Kuruba Venkataswamy, Since deceased by his LRs.

3. K.Devamma, Age 55 years,

4. K.Ramanjaneyulu, Age 40 years,

5. K.Ramachandra, Age 34 years,

6. K.Kamalakar, Age 32 years,

7. K.Vijayakumar, Age 28 years,

8. K.Nagalakshmi, Age 37 years, Defendants No.3 to 8 are sons and daughters of K.Venkataswamy(Defendant No.-2), Hindus, Agriculturists, L.Thimmapuram Roddam Mandal, Defendants No.3 to 8 are Added as per orders in I.A. 347 of 2018, dated 13-12-2018.

...Defendants

This suit is coming for hearing before me in the presence of Sri R.Sreekanth Reddy, Advocate for the Plaintiff and Sri K.S.Rajasekhar, Advocate for the Defendants and in the matter having stood over for consideration, till this day, this Court, delivered the following :- :J U D G M E N T:

1.Suit For: This is a suit filed by the plaintiff for permanent injunction restraining the defendants, their men, and agents from interfering with the peaceful possession and enjoyment of the plaint schedule property.

2.The brief averments of the plaint are as follows :

A) The Defendant No.1 and 2 are sons of Pedda yellappa and they are residing jointly. The family of the plaintiff has been in possession and enjoyment of the plaint schedule property. Considering the possession of the

O.S.No. 116 of 2009 2 Addl. Junior Civil Judge, Penukonda

plaintiff, the plaintiff was assigned the plaint schedule property by the then

Tahsildar, Penukonda in H.S.R. Dis.No. 43/2004, dated 16-05-1984 and the plaintiff and her family members have been using the plaint schedule property as thrashing floor. Considering the possession and enjoyment of the plaintiff, the Tahsildar, Roddam was pleased to grant possession certificate to the plaintiff for the plaint schedule property in file No. 160/2007, dated 16-11-2007 for consideration of house. The plaintiff is one of the beneficiary of Indiramma

Housing Scheme and the housing department was pleased to sanction loan to the plaintiff for construction of the house in the plaint schedule property.

B) It is further averred in the plaint that when the plaintiff right to make construction in the plaint schedule property, the defendant No.1 filed

R.C.No. 1099/2008 on the file of Revenue Divisional Officer, Penukonda for

cancellation of possession certificate issued in the name of plaintiff by the

Tahsildar, Roddam. Finally, after hearing both parties, the Revenue Divisional

Officer dismissed the revenue appeal filed by the defendant No.1, dated 9-2- 2009 and confirmed the orders of the Tahsildar, Roddam in granting possession certificate to the plaintiff and no appeal was preferred by the defendant No.1.

C) It is also further averred in the plaint that the plaintiff has been in possession and enjoyment of the plaint schedule property, whereas the defendants have no any manner of right, title or possession over the plaint schedule property. The defendants were also granted possession certificate to the South of the plaint schedule property and the defendant with a view to make wrongful gain encroached into the site situated in front of their open space, which belongs to gram Nattam. The defendants are being not satisfied with the occupation of open space in front of their site and are trying to

O.S.No. 116 of 2009 3 Addl. Junior Civil Judge, Penukonda

encroach into the plaint schedule property. The defendants are powerful persons in the village and having support of antisocial elements and they will encroach into the plaint schedule property at any movement and the threats of the defendants are real and imminent.

3.The contentions of the defendants in the written statement are as hereunder: The Defendant denied all the allegations made by the plaintiff in his plaint specifically and submits that the defendants and their ancestors have been in possession and enjoyment of Ac. 0-10 cents of land in Sy.No.48-2 and recognizing their possession and enjoyment, the then Tahsildar was pleased to grant house site patta each for AC. 0-05 cents and they have constructed the

Kottam long prior to granting of patta in their fafvour. In the Ac.0-10 cents of land, the 2nd defendant had constructed the Kottams by taking permission from the Panchayath Surpanch on 26-02-1977 and after granting of patta, the defendants have raised a Kottam. The Defendants further submits that they wanted to construct a house, the said Kottams were removed. Taking advantage of the same, the plaintiff and her husband have started these proceedings by influencing the Tahsildar, Roddam and the proceedings in R.C.

10099/2008 before the R.D.O. Penukonda, the plaintiff herein has not pleaded the so called the assignment of house site patta in her favour on 16-05-1984.

The defendants further submits that the plaintiff under the guise of the orders of R.D.O., she is trying to encroach into the Ac. 0-03 cents of land in Ac. 0-10 cents of land assigned to them. The Surpanch granted permission to construct the house in the patta land, but on account of disputes, they could not construct the building. The plaintiff’s husband is the manager of the joint family and they have movable and immovable properties and they are not

O.S.No. 116 of 2009 4 Addl. Junior Civil Judge, Penukonda

eligible under Indiramma Pathakam. The land assigned to defendants are adjacent to the property of the plaintiff. The husband of the plaintiff has been demanding these defendants to give the said land and the defendants refused for the same. On account of the same, the husband of the plaintiff has started these suit proceedings with a view to harass the defendants. The plaintiff is not at all in possession and enjoyment of the suit property and prays for dismissal of the suit.

4.I S S U E S: Basing on the pleadings my learned predecessor has framed the following issues for trial,

1. Whether the plaintiff is entitled for permanent injunction or not?

2. If so, to what relief?

5. The plaintiff herself examined as PW-1 and adduced further evidence by examining one Boya Anjinappa on behalf of plaintiff and marked

Ex.A-1 to Ex.A-3. Ex.A-1 is the Possession certificate issued by Tahsildar to the plaintiff dated 16-11-2007, Ex.A-2 is the Proceedings of Sub Collector,

Penukonda, Dated 09-02-2009 and Ex.A-3 is the Rough Plan.

6.After closure of plaintiffs side evidence, the defendant No.1 in support of his case got himself examined as Dw-1 and also adduced further evidence by examining one T.Anjinappa on his behalf as DW-2 and got marked

Ex.B-1 to B-11 documents to prove his contentions raised in the written statement. Ex.B-1 is the H.S.R. Dis.No.2/1401, dated 25-10-1991 in favour of defendant No.1, Ex.B-2 is the H.S.R. Disl.No.2/1401 dated 15-10-1991 in favour of defendant No.2, Ex.A-3 is the Permission granted by the Gram Panchayath for defendant No.1, dated 20-07-2007 for construction of house. (Marked subject to objection), Ex.B-4 is the permission granted by the Gram Panchayath for

O.S.No. 116 of 2009 5 Addl. Junior Civil Judge, Penukonda

construction of house, dated 20-07-2007 (Marked subject to objection), Ex.B-5 is the Tax receipt, dated 04-03-2009 in the name of defendant No.1, Ex.B-6 is the

Tax receipt dated 4-3-2009 in the name of defendant No.2, Ex.B-7 is the certificate issued by the Sarpanch Gram Panchayath Pedda Manthur, Dated 01- 06-2009 (Marked subject to objection), Ex.B-8 is the Permission granted by the

Sarpanch in favour of Defendant No.2, dated 26-02-1977 (Marked subject to objection), Ex.B-9 is the Rough sketch, Ex.B-10 is the permission letter issued by the Sarpanch Gram panchayath, for construction of Shed and Ex.B-11 is the

House Tax receipts nine in number.

7.Perused the written arguments filed by the both counsels.

8.Plaintiff side evidence:

A) The plaintiff was examined as PW-1 and reiterating the contents of the plaint and the same was received in evidence in lieu of her chief examination and she was testified in cross examination by other side. In the course of cross examination PW-1 stated that her residential house is situated in the property in an extent of Ac. 0-03 cents or Ac. 0-04 cents. She further stated that her husband and his five brothers have two houses and other house of their family has ground and first floors and her husband and his brothers have been in joint possession of joint family properties. PW-1 admitted in her cross examination that the disputed property is situated on the

West side of the foundation and further stated that her family has about 100 acres of land and her family has Ac. 10-00 cents of land at Bodarahalli of

Pavagada Taluk. She voluntarily says that the land of Ac.10-00 cents at

Bodarahalli of Pavagada Taluk has been acquired by the Government. She further stated that Defendant No.1 and 2 although belong to her caste, her

O.S.No. 116 of 2009 6 Addl. Junior Civil Judge, Penukonda

family has no relationship with them and the disputed property is the

Government land. PW-1 further stated that there are two coconut trees in the disputed property and further stated that she do not know whether there is one neem tree and one badam tree. She further stated that the foundation is laid at a distance of 50 feet away from the disputed property and there is a vacant land of AC. 0-05 cents of land situated in front of their house, towards north but not Ac. 0-20 cents of land, as suggested. PW-1 denied all the suggestions and question made by the counsel for the defendants.

B) PW-2 Boya Anjinappa, third party to the suit has stated in his chief examination that he know both parties to the suit and he was working as coolie in the house of the plaintiff. He further stated that he have seen the plaint schedule property and the plaintiff has been using the plaint schedule property for tethering cattle in the plaint schedule property. PW-2 also further stated that the plaintiff has been in possession and enjoyment of the plaint schedule property and the defendants have no right or possession over the plaint schedule property. During the course of cross examination PW-2 stated that he owned 4 acres of land and he succeeded some property from his father and he also purchased 3 acres of land about 15 or 18 years back. He further stated that the suit property is situated in Thimmapuram village and it takes half an house time by walk from Pedda Manthur to Chinna Manthur village.

PW-2 denied the suggestion put by the defendant counsel that the suit schedule property is originally belongs to defendants and the plaintiff is never in possession of the suit schedule property and that he is deposing falsehood.

O.S.No. 116 of 2009 7 Addl. Junior Civil Judge, Penukonda

9.Defendants side evidence:

A) The defendant No.1 was examined as DW-1 and reiterating the same facts mentioned in the written statement. During the course of cross examination DW-1 stated that the total extent of suit Sy.No.48/2 is Ac. 1-04 cents. He further stated that he know that the plaint schedule property is an extent of Ac. 0-03 cents and again he says that nothing is there on Western side of plaint schedule property. He further stated that there is no site to the south of plaint schedule property and the boundaries of his property i.e., extent of 5 cents is bounded by East : Site of Husband of plaintiff, West : Rastha,

North : House of V.Venkataramanappa and South : House site of his brother

Venkataswamuy. DW-1 further stated that he do not know whether the plaintiff was granted D-Farm patta in regard to plaint schedule property in the year 1987 and he do not know whether the plaintiff was granted possession certificate in the year 2007 i.e., Ex.A-1. DW-1 admitted in his cross examination that against issuance of Ex.A-1 possession certificate, he preferred

Appeal in R.C.NO.1099/2008 before Revenue Divisional Officer, Penukonda and further stated that he do not know whether Revenue Divisional Officer,

Penukonda passed order Dated 9-2-2009 under Ex.A-2 Proceedings of Sub

Collector confirming possession certificate granted to the plaintiff and his advocate read over the contents of Ex.A-2 and explained to him and he have not seen the Ex.A-3 which is filed in the court. DW-1 further admitted that in

Ex.B-3 Rough plan does not contain any extent and in the East of the place in

Ex.A-3, there is a site of Bisappa who is the husband of plaintiff. He further admitted that he filed appeal in R.C.No. 1099/2008 before Revenue Divisional

O.S.No. 116 of 2009 8 Addl. Junior Civil Judge, Penukonda

Officer, Penukonda on the basis of Ex.B-1 and further stated that he do not know whether the R.D.O., passed an order in the above R.C. stating that there is no such site as mentioned in Ex.B-1. He further admitted that the suit is pending with regard to open site and further stated that Ex.B-9 rough sketch contains disputed place and also other than disputed place and further admitted that in Ex.B-9 to the Eastern boundary is house of husband of plaintiff and to the West of that plaintiff’s husband’s open place. DW-1 further stated that he never objected the plaintiff to construct the house in the plaint schedule property and he have no objection to construct the building by the plaintiff, if there is a site belongs to plaintiff. The counsel for the plaintiff put the suggestion to witness that he have no right, title or possession over plaint schedule property and he is deposing falsehood and contents in the chief affidavit are not correct, he denied the same.

B) T.Anjinappa, third party to the suit was examined as DW-2 on behalf of defendants and submitted in his chief examination affidavit that the defendants have been in possession and enjoyment of an extent of Ac.0-10 cents of land in Sy.No.48-2 ever since the time of their father. He further submit that the first defendant and his brother are in possession and enjoyment of Ac.

0-05 cents each by constructing kottam in their sites and recognizing the possession and enjoyment of the defendants over the above said land and the

Tahsildar also granted pattas. The government has granted houses to the defendants under Indiramma Gruha Pathakam, hence the defendants have removed the Kottams in their sites for construction of the sites of these defendants. He further submits that in fact the plaintiff has encroached an extent of Ac. 0-03 cents of land in the sites of defendants and filed the above

O.S.No. 116 of 2009 9 Addl. Junior Civil Judge, Penukonda

suit with an intention to grab the open space of defendants which was kept vacant for the construction of houses under Indiramma Gruha Pathakam and trying to grab entire Ac. 0-10 cents of land assigned to these defendants.

DW-2 further submit that the plaintiff is no way concerned to the suit property and in fact there is no Ac. 0-03 cents site in the Sy.No.48-2. He further stated that the plaintiff’s family is big joint family and her family is having nearly 17- acres of land in their village and they are big lands lords and the plaintiff family is influenced and powerful family in their village and the plaintiff is also not eligible person for assignment of any land.

During the course of cross examination DW-2 stated that his mother’s name is Pathakka and admitted that his father belongs to

Thadenkalapalli, but he was born and brought up in Thimmapuram village and presently he is residing in Thimkmapuram. He further stated that he do not know for how much extent the plaintiff filed the suit against the defendant and he do not know the survey number of the plaint schedule property. DW-1 further stated that the Western boundary of suit schedule property is Rastha, the north of the plaint schedule property is one Venkataramanapa’s house, to the South of the plaint schedule property, there is a house of Karavalapalli

Kondanna and to the East of the plaint schedule property, there is open space of husband of plaintiff. He admitted that the house of Bisappa the husband of plaintiff and the open space of defendant intervened. He further stated that the defendant owns five cents and he do not know the survey number of defendant open space and that open space was bounded by South : Foundation of One

Venkataswamy, West : Rastha, North : Vedda Venkataramanappa’s house and

East : House of husband of plaintiff Bisappa. The counsel for the plaintiff put

O.S.No. 116 of 2009 10 Addl. Junior Civil Judge, Penukonda

the suggestion that the plaintiff is in possession of the plaint schedule property and the defendants have no right, title or possession over the plaint schedule property, the witness denied the same. DW-2 also denied the suggestion that he is deposing false with a view to help the defendant as he is relative to the defendant.

10.The claim of the plaintiffs in netshell:

The family of the plaintiff has been in possession and enjoyment of suit schedule property and considering the possession the then Tahsildar, Penukonda in H.S.R.Dis.No.43/2004, dated 16-05-1984 assigned the suit schedule property to the plaintiff. The possession certificate dated 16-11-2007 in file No.

160/2007 was granted by the Tahsildar, Goddam. The plaintiff was one of the beneficiary of the Indiramma Housing scheme and was sanctioned loan for the construction of the house in the plaint schedule property. While the plaintiff started construction in the plaint schedule property, the defendant No.1 filed

R.C.No.1099/2008 on the file of Revenue Divisional Officer, Penukonda for

cancellation of possession certificate issued in the name of plaintiff by the

Tahsildar, Roddam and the said petition was dismissed and again he preferred appeal and the same was also dismissed. The Defendants were also granted possession certificate to the south of the plaint schedule property and the defendants with a view to make wrongful gain encroached into the site situate infront of their open space belongs to gram nattam and also trying to encroach into the plaint schedule property. Hence the plaintiff prayed the Hon’ble Court to restrain the defendants and their men from interfering with the possession and enjoyment of the plaintiff over the plaint schedule property.

O.S.No. 116 of 2009 11 Addl. Junior Civil Judge, Penukonda

11.The plaintiff was examined as PW-1 and in her chief examination affidavit she reiterated the same facts mentioned in the plaint and in her cross examination PW-1 deposed that her residential house is situated in the property in an extent of Ac. 0-03 cents or Ac. 0-04 cents and her husband and his five brothers have two houses and have been in possession of joint family properties. She further deposed that her family has laid foundation on the west of their residential house enclosing property of Ac.0-05 cents and the disputed property is situated on West of the said foundation and her family owns 100 acres of land. PW-1 further deposed that there are two coconut trees in the disputed property and the foundation is laid on distance of 50 ceet away from the disputed property and the vacant land of Ac. 0-05 cents is sutuated infront of their house towards north side. So many question and suggestions put by the counsel for the defendants but nothing was elicited for the purpose of this case.

12.PW-2 Boya Anjinappa, third party to the suit submits in his chief examination affidavit that he know both the parties to the suit and he was workings as coolie in the house of the plaintiff and he has seen suit schedule property. PW-2 further submits that the plaintiff has been using the plaint schedule property for tethering cattle in the plaint schedule property and the plaintiff has been in possession and enjoyment of the plaint schedule property and the defendants have no right or possession over the plaint schedule property. In his cross examination PW-2 deposed that he own 4 acres of land and he succeeded some property from his father and he also purchased 3 acres of land about 15 or 18 years back and the suit in

Thimmapuram village.

O.S.No. 116 of 2009 12 Addl. Junior Civil Judge, Penukonda

13.Defendants contest the suit by filing written statement and submitting that their ancestors have been in possession and enjoyment of 10 cents of land in Sy.No.48-2 i.e., suit survey number and in recognizing their possession and enjoyment, the then Tahsildar granted site patta to each defendant for 5 cents vide H.S.R.Dis.NO.2/1401, dated 28-08-1991 and there was a Kottam in each plot of 5 cents and constructed a Kottam long prior to granting of patta in their favour. The Defendant No.2 constructed a Kottam by taking permission from the Panchayath Sarpanch, dated 26-02-1977. The defendants wanted to construct a house under the scheme of Indiramma Gruiha

Pathakam and for that they removed the said Kottam and taking advantage of the same the plaintiff and her husband started proceedings by influencing the

Tahsildar, Roddam. The defendants further submits that the plaintiff in the proceedings in R.C.1099/2008 did not pleaded the assignment of house site patta in her favour on 16-05-1984 and the plaintiff under the guise of orders of

Revenue Divisional Officer, he is trying to encroach into 3 cents of land in 10 cents of land assigned to these defendants. The Sarpanch of Peddamanthur has granted permission to construct the house in the patta land and issued permission letter, dated 20-07-2007 and on account of disputes, these defendants were enable to construct the building. The defendants further submits that the plaintiff family is a big family and owning about 170 acres of land ans also 26 acres of land in Karnataka state and they are not eligible under Indiramma Pathakam.

14.Defendant No.1 was examined as DW-1 and got marked Ex.B-1 to

B-11. DW-1 in his chief examination affidavit reiterated the same facts mentioned in the written statement. In his cross examination DW-1 deposed

O.S.No. 116 of 2009 13 Addl. Junior Civil Judge, Penukonda

that the total extent of suit survey No.48/2 is an extent of Ac. 1-04 cents and he admitted that the plaint schedule property is an extent of 3 cents and again says that nothing is there on western side of plaint schedule property. DW-1 further admitted that the boundaries of his property i.e., extent of 5 cents is bounded by East : Site of husband of plaintiff, he laid foundation in that site,

West : Rashta, North : House of V.Venkatramanappa and South : House site of his brother Venkataswamy. He further admitted that he preferred against issuance of Ex.A-1 in R.C.No.1099/2008 before Revenue Divisional Officer,

Penukonda, but he do not know whether the orders passed, dated 9-2-2009 confirming possession certificate to the plaintiff. He further admitted that the contents of Ex.A-2 was read over to him and explained to him by his counsel.

So may suggestions made by the counsel for the plaintiff, but nothing was elicited for the purpose of this case.

15.T.Anjinappa was examined as DW-2 and submitted in his chief examination affidavit that he was well acquainted with the facts of the suit and defendants have been in possession and enjoyment of an extent of Ac. 0-10 cents of land in Sy.No.48-2ever since the time of their father and each defendant in possession of 5 cents constructed Kottam in their sits. Recognizing the possession and enjoyment of the defendants, the Tahsildar granted pattas to them and the government has granted houses to the defendants under

Indiramma Gruha Pathakam and they removed their Kottams in their sites for the construction of the houses. He further submits that the property of the plaintiff is adjacent to the sites of these defendants and plaintiff has encroached an extent of Adc. 0-03 cents of land in the sites of defendants and filed this suit an intention to grab the open space of defendants which was kept vacant

O.S.No. 116 of 2009 14 Addl. Junior Civil Judge, Penukonda

for the construction of houses under Indiramma Gruha Pathakam. He further submits that the plaintiff family owns 170 acres of land and they are big land lords and the plaintiff is not eligible for any assignment of land. During cross examination DW-2 deposed that his mother name is Pathakka and his father belongs to Thadenkalapalli and he was born and brought up in Thimmapuram village and presently he was residing in Thammapuram and the boundaries of the suit schedule property is East : Open site of husband of plaintiff, West :

Rastha, North : Venkataramanappa’s house and South : House os Karavalapalli

Kondanna. The counsel for the plaintiff made so many suggestions to witness, but nothing was elicited for the purpose of this case.

16.On perusal of the documents produced by both plaintiff and defendants in support of oral submission during course of trial. The plaintiff possession over the suit schedule property was proved by Ex.A-1 possession certificate and Ex.A-2 order passed by the Revenue Divisional Officer. The contention of the defendants i.e., they are in possession of the suit schedule property and plaintiff encroach into their assigned land. To prove their contention the defendant have produced Ex.B-1 and B-2 pattas granted in favour of defendants, but findings in Ex.A-2 clearly shows that pattas belongs to Nalluru village and not Thimmapuram village. The Ex.B-3 to B-11 filed by the defendants is no way helpful for contention of the defendants that they are in possession of the suit schedule property because they are submitting that they obtained permission from the Gram panchayath for construction of house and produced Ex.B-5, B-6 and B-11 tax receipts and at any point of time in their pleadings or their evidence, they did not state that they constructed house in the suit schedule property and they are paying tax for that house. The court

O.S.No. 116 of 2009 15 Addl. Junior Civil Judge, Penukonda

cannot presume or assume the facts on just mere production of documents and it is the duty of the defendants to explain the facts to the court.

17.Plaintiff has successfully proved his claim that she is in possession and enjoyment of the suit schedule property, hence she is entitled for the decree.

18. ISSUE NO.4: In the result, the suit filed by the plaintiff against the defendants for permanent injunction restraining the defendants interfering with the peaceful possession and enjoyment of the suit schedule property is

DECREED with costs.

Typed to my dictation by the Stenographer Gr.III, corrected and

pronounced by me in the open Court, this the 12TH day of June, 2019.

ADDL. JUNIOR CIVIL JUDGE

PENUKONDA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS: FOR DEFENDANT:

PW-1: D.LakkammaDW-1: K.Kistappa

PW-2: Boya AnjinappaDW-2: T.Anjinappa

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A-1: Possession certificate issued by Tahsildar to the plaintiff dated 16-11-2007. Ex.A-2: Proceedings of Sub Collector, Penukonda, Dated 09-02-2009. Ex.A-3: Rough Plan.

FOR DEFENDANT

Ex.B-1: H.S.R. Dis.No.2/1401, dated 25-10-1991 in favour of defendant No.1. Ex.B-2: H.S.R. Disl.No.2/1401 dated 15-10-1991 in favour of defendant No.2. Ex.B-3: Permission granted by the Gram Panchayath for defendant No.1, dated 20-07-2007 for construction of house. (Marked subject to objection).

O.S.No. 116 of 2009 16 Addl. Junior Civil Judge, Penukonda

Ex.B-4: permission granted by the Gram Panchayath for construction of house,

dated 20-07-2007 (Marked subject to objection).

Ex.B-5: Tax receipt, dated 04-03-2009 in the name of defendant No.1. Ex.B-6: Tax receipt dated 4-3-2009 in the name of defendant No.2. Ex.B-7: Certificate issued by the Sarpanch Gram Panchayath Pedda Manthur,

Dated 01-06-2009 (Marked subject to objection).

Ex.B-8: Permission granted by the Sarpanch in favour of Defendant No.2, dated 26-02-1977 (Marked subject to objection). Ex.B-9: Rough sketch. Ex.B-10: permission letter issued by the Sarpanch Gram panchayath, for construction of Shed. Ex.B-11:House Tax receipts nine in number.

A.J.C.J.

O.S.No. 116 of 2009 17 Prl. Junior Civil Judge, Penukonda

Present:- Smt.M.Zamruth Begum Kamaludeen,

Addl. Junior Civil Judge, Penukonda

FAC. Prl. Junior Civil Judge, Penukonda

Wednesday, the 26th day of September, 2018.

O.S.No. 21 of 2012

BETWEEN: Jeevaju Anjuneyulu, S/o.Jeevaji Sangeevappa, Age 48 years, Hindu, Cultivation, Residing AT Somandepalli Village, Somandepalli Mandal, Ananathapuramu.

...Plaintiff

AND

Badigannagari Nagaraju, S/o.B.Kadirappa, Age 42 years, Hindu, Cultivation, Residing at D.No.6/592, S.C.Colony, Somandepalli Village and Mandal.

...Defendant

Suit for Permanent Injunction restraining the defendant, his men, agents, and representatives from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and for costs of the suit.

Plaint presented on 25-01-2012 Plaint numbered on 25-01-2012

Suit is valued for the purpose of Court fee and Jurisdiction is at Rs.10,000/- and a Court fee of Rs.786/- is paid and on thereon under Section 26(C) of A.P.C.F. and S.V.Act.

The cause of action for the suit arose on 15-04-1989 when the plain- tiff’s brother purchased the plaint schedule mentioned property and when the plaintiff’s brother gifted the suit schedule property to the plaintiff on 29.11.2006 and about one month back when the defendant is trying to obstruct the plaintiff from enjoying the suit schedule property and on 03.01.2012 when the plaintiff got issued a legal notice to the defendant and the defendant has given reply notice dated 10-01-2012 all rose at Somandepalli Village, Somande- palli Mandal with in the jurisdiction of this Hon’ble Court.

This suit is coming on this day for final hearing before me in the pres- ence of Sri S.Krishna Murthy, Advocate for the Plaintiff and Sri. C.R.Nagarajuna for defendant and having stood over for consideration and THIS COURT DOTH ORDER AND DECREE AS FOLLOWS:-

1.That the suit be and the same is hereby decreed without costs.

2.That the defendant, his men, agents and representatives are restrained by way of Permanent Injunction from interfering with the plaintiffs peaceful possession and enjoyment over the suit schedule property;

O.S.No. 116 of 2009 18 Prl. Junior Civil Judge, Penukonda

3.That there shall be no order as to the costs.

Given under my hand and the seal of the Court this the 26th day of

September, 2018.

Addl.JUNIOR CIVIL JUDGE

PENUKONDA

FAC: JUNIOR CIVIL JUDGE

PENUKONDA

Table of Costs

Plaintiff Defendant Stamp on plaint Rs. 786-00 --- Stamp on vakalat Rs. 2-00 2 Process --- --- Typing charges --- --- Advocate Fee --- ---

- - - - - - - - - - - - - - - - - - - -

Total : Rs. 788-00 Rs. 2

- - - - - - - - - - - - - - - - - - - - -

(Fee and Costs memo not filed)

SCHEDULE

Land situated with in RD of Ananthapuramu, SRD of Penukonda within the Somandepalli village field limits described as follows:

NATURESY.NO.EXTENT REMARKS

G.D21-(6) Ac. 1-46 Cents Full

Boundaries: East : Land of Harijana Mutyalappa West : Land of Sugali Ramappa North: Land of Muddappa in same Sy.No. South: Land of Patti Veerabhadraiah

ADDL. JUNIOR CIVIL JUDGE

PENUKONDA

FAC: JUNIOR CIVIL JUDGE

PENUKONDA

O.S.No. 116 of 2009 19 Prl. Junior Civil Judge, Penukonda

O.S.No.125 of 2011 Date: 17.02.2021

Addl.JCJ, Penukonda

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE AT

PENUKONDA

PRESENT: Smt K.M.ZAMRUTH BEGUM

ADDITIONAL JUNIOR CIVIL JUDGE

PENUKONDA

WEDNESDAY, THE SEVENTEENTH DAY OF FEBRUARY

TWO THOUSAND AND TWENTY FIRST

O.S.No. 125 OF 2011

BETWEEN :

01.Shaik RAhamthulla 02.Shaik Asmath Bee… PLAINTIFF

AND 01.Vadde Manjala Venkata Swamy 02.Vadde Manjala Sankara 03.Vadde Anjali … DEFENDANTS

This suit is coming on 03.02.2021 before me for final hearing in the presence of Sri M.Bhaskar Reddy,Counsel for Plaintiffs and Sri M.Sreenivasulu,Counsel for the Defendants, upon hearing arguments on both sides, considering the material available on record and having stood over the matter for consideration till this day, the Court deliver the following:

:: J U D G M E N T ::

1.This is a Suit filed by the Plaintiffs against the Defendants 1 to 3 for declaration of Easementary rights of the Plaintiffs to use the Rastha i.e.,

Item No.2 of the Suit Schedule Property to reach the Item No.1 of the Suit

Schedule Property and consequently restrain the Defendants, their men and agents from interfering with the right of way of the Plaintiffs to make use

Rastha i.e., Item No.2 of the Suit Schedule Property to reach the Item No.1 of the Suit Schedule Property from main road by way of Permanent Injunction.

2. CASE OF THE PLAINTIFF, SUCCINCTLY :

2.1 The Plaintiff No.1 is the husband of the Plaintiff No.2 and the

Defendant No.1 is the father of the Defendants Nos.2 & 3. The Item No.1 of the Suit Schedule Property measuring East – West : 8 Yards, North – South :

Page 1 of 15

O.S.No.125 of 2011 Date: 17.02.2021

Addl.JCJ, Penukonda 12 yards in Survey No.233-2B of Gorantla Revenue Village is Ancestral

Property of the Plaintiff No.1 from the time immemorial. There was a Hut (Kottam) on Southern side in the said open site and its Door No.1-1187 and after the layout it has been allotted as Plot No.48 facing towards North. The

Plaintiff No.1 was the absolute owner with full rights and he has been exclusive Possession and enjoyment of the Item No.1 of the Plaint Schedule

Property and she paid House Taxes also and the same was filed herewith. In the year 1990, the said Hut collapsed and it has become an open site. On 27.08.1990, the Plaintiff No.1 gifted Item No.1 of the Plaint Schedule Property to his wife i.e., Plaintiff No.2 under a Registered Gift Deed dated 27.08.1990 and delivered possession of the same to her and the said Gift Deed was accepted by Plaintiff No.2 and she is in Possession and enjoyment of the same by constructing a House in the place of Hut.

2.2The Item No.2 of the Plaint Schedule Property is the Rastha which is existing towards North of the Item No.1 of the Plaint Schedule Property.

The Item No.2 of the Plaint Schedule Property is link road running East-West to the Main road from Plaintiffs’ House and other Houses. There is no other

Rastha except the Item No.2 of the Plaint Schedule Property and its width is 12-00 Feet. The said Rastha is leading to Main Road in Gorantla from the time immemorial without any objection or obstruction from anybody. There are open plots of the Defendants in Survey No. 233-1 to North of the Item

No.2 of the Plaint Schedule Property and the Defendants are trying to occupy the said Rastha i.e., Item No.2 of the Plaint Schedule Property and club with their Plots. But earlier they have not succeeded in their evil plan and now with collusion with Panchayat Officials to raise compound wall in front of the

House of the Plaintiffs and other houses clubbing the 12-00 Feet width Rastha with their open place. The Defendants have no rights over the Item No.2 of the Plaint Schedule Property and it is a public Rastha from time immemorial.

2.3The Plaintiffs and adjacent neighbours are very poor coolies and they have no capacity to oppose the Defendants. The Defendants are very powerful and influential persons and their intention is that if the Rastha is

Page 2 of 15

O.S.No.125 of 2011 Date: 17.02.2021

Addl.JCJ, Penukonda closed, the houses of the Plaintiffs and others will be valueless and become waste and the Plaintiffs bound to act according to the directions of the

Defendants and to sell away the Properties to the Defendants for low price.

The Plaintiff No.2 has intended to construct an extension of her house in the

Item No.1 of the Plaint Schedule Property i.e., Northern side of her house submitted an Application dated 12.07.2010 along with Plan to Gorantla Gram

Panchayat for approval. But the Defendants with a malafide intention to harass the Plaintiffs by influencing Gram Panchayat Officials and not to issue the approval Plan. The Plaintiff No.2 have came to know the collusion of the

Defendants and Gram Panchayat Officials, he gave a representation to the

District Panchayat Officer, Ananthapur and on his orders, the Tahsildar of

Gorantla took initiative and on the Report of Mandal Surveyor addressed a letter in L.Dis.No.178/2011(B) dated 13.06.2011 to the Panchayat Secretary,

Gram Panchayat, Gorantla stating that there is no objection to construct the

House by the Plaintiff No.2 by issuing the copy to the Plaintiff No.2 along with approved plan. The Defendants were aggrieved with the Orders of the

Tahsildar, Gorantla and started proclaming that there is no Rashta in Item

No.2 of the Plaint Schedule Property for the Houses of the Plaintiffs and others and the Plaintiffs are not entitled to use the said Rastha and the said

Rastha belongs to the Defendants.

2.4 The Rastha i.e., Item No.2 of the Plaint Schedule Property which is existing towards North of the Plaintiffs’ house is existing from time immemorial. There is no other way to the Plaintiffs to reach their House because there are Houses on Eastern and Western side and on Southern side there is a big Well which is called as ‘Yandalabanda Bavi. The Plaintiffs, their predecessor and other residential people are in enjoying the said Rastha Item

No.2 of the Suit Schedule Property from the time immemorial and the vendors of the Defendants or Government never objected the right of way for the Plaintiffs and other residential people at any time. Even water supply pipe line was also arranged by the Government underneath the said Rastha i.e., Item No.2 of the Plaint Schedule Property. The Value of the Properties are on the raise now a days, as such the Defendants with the malafide intention

Page 3 of 15

O.S.No.125 of 2011 Date: 17.02.2021

Addl.JCJ, Penukonda to enrich themselves have been making efforts to grab the 12 Feet width

Rastha i.e., Item No.2 of the Suit Schedule Property and trying to club the same with their Plots which is located towards the North of the said Rastha i.e., Item No.2 of the Suit Schedule Property.

2.5The Plaintiffs and their predecessors have acquired the right of way of said Rastha as an easement of necessity to reach their residential house. If the Defendants occupied the said Rastha along with their plots and raise Walls permanently , the right of way of the Plaintiffs to use the Rastha to reach their house will be infringed and they will suffer great and irreparable loss and injury. Hence, the Plaintiffs filed this Suit for declaration of Easementary right over the Item No.2 of the Plaint Schedule Property.

3. CASE OF THE DEFENDANTS 1 to 3, IN NUTSHELL :

3.1The Defendants denied the material contentions of the Plaintiff and submitted that the Suit Schedule Survey No.233-2B originally belonged to Government and the Government granted House site pattas to the landless persons about 20 years ago. Item No.1 of the Suit Schedule

Property was originally granted to one Fakruddin and a during the life time of original assignee, the Plaintiff No.1 executed a Registered Gift Deed in favour of the Plaintiff No.2. The Plaintiff No.1 has no right to execute Gift Deed in favour of the Plaintiff No.2 as it belongs to Government. The Defendant

Nos.1 and 3 purchased House Site Pattas in Survey No.233-1 from

Sathyanarayana, Nagabushana, Nagaraju and Kristappa for valid consideration under two Registered Sale Deeds. The Survey No.233-1 is private land and the Vendors of the Defendants 1 & 3 laid plots in Survey

No.233-1 and sold the same to the various persons including the Defendants 1 & 3. Since the date of purchase, the Defendants 1 & 3 are in Possession and enjoyment over the house sites purchased by them and laid foundations to construct houses in the said sites. The Plaintiffs are nothing to do with the

Survey No.233-1 as it belongs to the private persons. While laying plots in

Survey No.233-1, the vendors of the Defendants 1 & 3 left roads on Northern

Page 4 of 15

O.S.No.125 of 2011 Date: 17.02.2021

Addl.JCJ, Penukonda and Southern side to the plots purchased by Defendant Nos.1 & 3. The

Plaintiffs are nothing to do with the roads left by the Vendors of the

Defendants 1 & 3 and others.

3.2Item No.1 of the Suit Schedule Property is situated towards

Southern side of Item No.2 of the Suit Schedule Property which is road left by the Vendors of Defendants 1 & 3 and others to use as Rastha by the

Defendants and others. In order to occupy the Road left by the Defendants, the Plaintiffs filed this unjust suit. The Plaintiffs have no right to encroach the road of the Defendants. The documents filed by the Plaintiffs are concocted one. The Gram Panchayat, Gorantla had not given any permission for construction of alleged room in the Suit Schedule land as it is originally belongs to Government and it was assigned in favour of one Fakruddin who is the father of Rahamthulla (Plaintiff No.1). The Gram Panchayat Gorantla is proper and necessary party to the Suit and the Suit is liable to dismiss for non-joinder of necessary party. Finally, the Defendants prayed the court to dismiss the suit with costs.

4.Basing on the respective pleadings of Plaintiffs and Defendants, the following issues were settled for trial.

1. Whether there the Road i.e., Item No.2 of the Suit Schedule Property is the only way for Plaintiffs to access to their House from Main road ?

2. Whether the Plaintiffs are entitled to Easementary right of necessity over the Item No.2 of the Suit Schedule Property?

3. Whether the Plaintiffs are entitled to Permanent Injunction restraining the Defendants not to interfere with Easementary Right of necessity of Plaintiffs over the Item No.2 of the Suit Schedule Property?

4. To what relief ?

5.During Trial, the Plaintiff No.2 herself examined as PW-1, Plaintiff

No.1 was examined as PW-2 and got examined PW-3 & PW-4 and exhibited

Ex.A-1 to Ex.A-10. On the other hand, the Defendant No.1 was examined as

Page 5 of 15

O.S.No.125 of 2011 Date: 17.02.2021

Addl.JCJ, Penukonda

DW-1 and got examined DW-2 & DW-3 and exhibited Ex.B-1 to Ex.B-3. All the testimonies of PW-1 to PW-4 & DW-1 to DW-3 are available on record in the form of depositions and they are not reproducing here to avoid repetition.

6.Heard the learned counsel appearing for the Plaintiffs and the learned counsel appearing for the Defendants.

7.Perused the material available on record.

8. ORAL AND DOCUMENTARY EVIDENCES BEFORE THE COURT:

8.1The Plaintiff No.2 was examined as PW-1 and reiterated the same facts stated in Plaint in her Chief Examination Affidavit and got exhibited the following documents.

Ex.A-1 is the Registered Gift Deed dated 27.08.1990 executed by Plaintiff

No.2 in favour of Plaintiff No.1 with respect to the Item No.1 of the Suit

Schedule Property.

Ex.A-2 is the House Tax Receipts 5 in Number with assessment Number 788 in the name of Plaintiff No.1 and the Receipts pertains to the year 2001, 2002, 2006, 2009 and 2010.

Ex.A-3 is the House Tax Demand Notice issued to Asmit Bee (plaintiff no.2)

W/o Rahamthula (plaintiff no.1)in the year 2011.

Ex.A-4 is the Special Notice issued by Gram Panchayat, Gorantla dated 20.03.2009 to Rahamthulla (plaintiff no.1) S/o Fakruddin with assessment No.788 demanding to pay the Taxes for the year 2004 to 2009.

Ex.A-5 is the Special Notice issued by Gram Panchyat, Gorantla dated 20.05.2008 to Rahamthulla(plaintiff no.1) S/o Fakruddin with assessment No.788 demanding to pay the Taxes for the year 2004 to 2008.

Ex.A-6 is the Certificate issued by Panchayat Secretary dated 22.10.2010 certifying that S.Asmit Bee(plaintiff no.2) W/o S.Rahamthulla (plaintiff

Page 6 of 15

O.S.No.125 of 2011 Date: 17.02.2021

Addl.JCJ, Penukonda

No.1) owns House in 1stWard at Gorantla Village with

Assessment No.788 in Survey No.233-2B.

Ex.A-7 is the Letter addressed by Tahsildar, Gorantla to Panchayat, Secretary

Gorantla vide Letter in Dis.No.178/2011(B) dated 13.06.2011 stating that Smt Asmit Bee(plaintiff no.2) W/o S.Rahamthulla(plaintiffno.1) gave representation for construction of room in Survey No.233-3B an extent of 2 ½ acres through District Panchayat Officer, Ananthapur and filed Application to survey and Mandal Surveyor inspected site and gave report that no objection for construction of the room within the boundaries of the Plot No.48 assigned to Plaintiff No.2.

Ex.A-8 are the Photographs 3 in number. The first photo showing that the vacant plots of Defendants in front of the Plaintiffs Item No.1 of the Suit

Schedule Property along with other Houses, the second photo shows ‘Yandalabanda Bavi and third photo shows that the Defendants are trying to construct Houses in front of Item No.1 of the Suit Schedule

Property without leaving Rastha i.e., Item No.2 of the Suit Schedule

Property to the Plaintiffs by laying foundation .

Ex.A-9 is the plain Sketch of the Suit Schedule Property with full description of Item Nos.1 & 2 of the Suit Schedule Properties.

Ex.A-10 is the Proposed Construction Plan in Survey No.233-1B issued to

Plaintiff No.2 showing East – Narrow Passge (Sandhu), West : House of

Venkatesh, South : Yandllabanda Bavi and North : Road and total extent of Item No.1 of the Property, North – South : 36 Feet (12 Sq

Yards) and East – West : 24 Feet (8 Sq Yards).

8.2During Cross-Examination, PW-1 deposed that herself and her husband filed this Suit and her husband also present in the Court and he is able to give evidence in the Court. PW-1 deposed that they filed this Suit against Defendants 1 to 3. PW-1 further admitted that Defendants 1 & 3 purchased house plots and Defendant No.3 died about 6 years ago and the legal heirs of Defendant No.3 were not brought on record in the present Suit.

PW-1 further deposed that they filed documents to show that the Suit

Schedule Property belongs to her ancestors and the Suit Schedule Property

Page 7 of 15

O.S.No.125 of 2011 Date: 17.02.2021

Addl.JCJ, Penukonda does not belongs to the Government. PW-1 further deposed that as on the date of execution of Gift Deed by her husband, there was a Hut in the Suit

Schedule Property and that the Hut was in dilapidated condition and two years after execution of Ex.A-1, she constructed a House in the said Place after obtaining permission from Gram Panchayat Gorantla. PW-1 further deposed that she has filed copy of approval plan for construction obtained in her name. PW-1 further deposed that she constructed a House and she has paid House Taxes to the Gram Panchayat, Gorantla and Tax Receipts also filed

in the Court and the Receipts are in her name. PW-1 further admitted that

there is a mention about construction of a house after two years of execution of Ex.A-1 in her Plaint and Chief Affidavit. PW-1 further deposed that the boundaries are East : House of Ediga Obaiah, West : House of

Venkataramanappa, South : Endlabanda Bavi (Well) and North : House Plot belongs to her. PW-1 further admitted that she has constructed her house as per Ex.A-10/Plan filed by her and the Ex.A-9/plain Sketch of suit schedule property filed by her is showing 25 Feet width road running towards East to

West, but width of the road is 12 feet only. PW-1 further deposed that they were given documents pertaining to Plot No.48 for Survey by the Mandal

Surveyor. PW-1 admitted that Mandal Surveyor gave Report to the Secretary,

Gram Panchayat, Gorantla to grant permission for them to construct house within the boundaries of house plt No.48 allotted to her.

8.3The Plaintiff No.1 was examined as PW-2 and reiterated the same facts stated in the Plaint in his Chief Examination Affidavit. During Cross-

Examination, PW-2 deposed that the present Suit is filed by himself and his wife and the Plaint was prepared on his instructions and he has shown two items in his Plaint Schedule. PW-2 further deposed that Item Nos.1 and 2 of

Suit schedule Properties are existing in Survey No.233. PW-2 further deposed that he do not know whether Item No.1 of the Suit Schedule Property is existing in Survey No.233-2B and again says that he know Item No.1 is in

Survey No.233. PW-2 admitted that Defendants 1 & 3 are having house sites towards the North of Suit Schedule Property. PW-2 further deposed that two years after filing of this Suit, Defendant No.3 died and he has not brought

Page 8 of 15

O.S.No.125 of 2011 Date: 17.02.2021

Addl.JCJ, Penukonda legal heirs of Defendant No.3 to this Suit. PW-2 admitted that he executed

Ex.A-1/Gift Deed in favour of PW-1 regarding to the house and open site and he has filed documents to show that they got right and possession over the

Item No.2 of the Suit Schedule Property. PW-2 further deposed that he has paying house tax to the house bearing No.1/1187.

8.4S.Bab Jan third party to the Suit was examined as PW-3 and stated in his Chief Examination Affidavit that he know that the Suit Schedule

Properties are Ancestral Properties of the Plaintiffs and the Plaintiff Nos.1 & 2 are enjoying the Suit Schedule Properties since long time. PW-3 further stated that the Suit Schedule Property is an open space and there is Cart

Track towards northern side of the open space. PW-3 further deposed that the Defendant have no manner of title or possession over the Suit Schedule

Property. During Cross-Examination, PW-3 deposed that the Suit Schedule

Properties are in existence with their boundaries and they belongs to

Plaintiffs.

8.5 S.Rahamthulla third party to the Suit was examined as PW-4 and reiterated the same facts stated by PW-3 in his Chief Examination Affidavit and during Cross-examination, PW-4 replied that he do not know anything with respect to the questions posed by the Defendants Counsel.

8.6Defendant No.1 was examined as DW-1 he reiterated the same facts mentioned in the Written Statement in his Chief Examination Affidavit and exhibited the following Documents.

Ex.B-1 is the attested copy of Adangal for Survey No.233-2 of Gorantla

Revenue Village showing that the land belongs to the Government.

Ex.B-2 is the Original Registered Sale Deed dated 17.03.2001 executed by 1.M.Sathyanarayana Rao, 2.B.Nagabushana, 3.B.Nagaraju and 4.B.Kristappa sons of Karanam Subbarao in favour of M.Venkata

Swamy S/o M.Rangappa (Defendant No.1) with respect to the land in

Survey No.233-1 to an extent East – West : 5 Sq Yards and North –

Page 9 of 15

O.S.No.125 of 2011 Date: 17.02.2021

Addl.JCJ, Penukonda

South : 12 Sq Yards total 60 Sq Yards by leaving Road on North and

South sides of the said Plot.

Ex.B-3 is the Original Registered Sale Deed dated 17.03.2001 executed by 1.M.Sathyanarayana Rao, 2.B.Nagabushana, 3.B.Nagaraju and 4.B.Kristappa sons of Karanam Subbarao in favour of Anjalidevi W/o

V.Venkataramana (Defendant No.3) with respect to the land in Survey

No.233-1 with an extent East – West : 5 Sq yards and North – South :

12 Sq yards total 60 Sq yards leaving road North & South sides of the said Plot.

8.7During Cross-Examination, DW-1 deposed that he has no house at Yandalabanda Street of Gorantla, but he have a Site nearby Endalabanda

Street and he purchased the said Site and there is a Compound Wall in it.

8.8One Nagabushanam one of the Vendor of the Defendants was examined as DW-2 and submitted in his Chief Examination Affidavit that himself, M.Sathyanarayana Rao, B.Nagaraju and B.Kristappa were the absolute owners of Ac.2-50 cents in Survey No.233-1 of Gorantla Village.

DW-2 further submitted that himself and other owners were made layout regarding to the said Property and sold the same plots to some third parties and they sold two plots to Defendant Nos.1 & 3 and leaving roads towards north and south of their Plots and they left the roads to the Defendants and other plot purchasers for their use only. DW-2 further submitted that the land in Survey No.233-1 an extent of Ac.2-50 cents is patta land and towards the

South of their land in Survey No.233-2 is existing it covers an extent of Ac.4- 31 cents and it is Government Land. DW-2 further stated that the then

Mandal Revenue Officer, Gorantla, after laying out the house site plots in

Survey No.233-2 of Gorantla Revenue Village and granted house site pattas to the House less Poor persons at Gorantla Village. DW-2 further submitted that towards the south of the Plots and road of the Defendants 1 & 3 Plot

No.48 in Survey No.233-2 is exising which was assigned to Panchayat worker which is the Suit Schedule Property. DW-2 further stated that the Plaintiffs or their ancestors having no manner of right, title or possession over the Suit

Page 10 of 15

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Addl.JCJ, Penukonda

Schedule Property or Road left by them towards the South of the Plots of the

Defendants 1 & 3. DW-2 further stated that the Plaintiffs filed this unjust Suit in order to grab the Road left by them towards the South of the Plots of the

Defendants 1 & 3 for which they have no right. **During Cross-Examination,

DW-2 deposed that he do not know contents of his Chief Examination

Affidavit since it is in English. When question was posed by the Plaintiff

Counsel that whether the contents of his Chief Examination Affidavit was read over in Telugu or not. DW-2 remain silent without answering.

8.9Y.C.Obulappa third party to the Suit was examined as DW-3 and reiterated the same facts stated in the Chief Examination of Affidavit of DW-2 in his Chief Examination Affidavit. During Cross-Examination, DW-3 deposed that his Chief Examination is drafted as per his instructions and he did not file any document to show that Ac.2-50 cents in Survey No.233-1 was owned by

M.Nagabhushan, M.Sathyanarayana Rao, P.Nagaraju and P.Kristappa. DW-3 further deposed that the Road passes between the Plaintiffs’ House and the

Defendants’ House and the said Road situated towards the Southern side of the Defendants’ House and towards Northern side of the Plaintiffs’ House and the width of the said Road is 12 Feet.

9. MARSHALING OF EVIDENCES AND POINTS FOR

DETERMINATION:

9.1The Plaintiffs are claiming Item No.2 of the Suit Schedule Property as Easementary Right because there is no other way to reach their House. In order to prove their claim, the Plaintiffs filed Ex.A-1 to Ex.A-10, the Plaintiffs 1 & 2 and other two persons, third parties to the Suit were examined on behalf of the Plaintiffs and the details description of each documents are already explained above. The Documents exhibited by the Plaintiffs clearly shows that the Item No.1 of the Suit Schedule Property is the Property of the Plaintiff

No.1 and he executed Gift Deed dated 27.08.1990 in favour of his wife i.e.,

Plaintiff No.2 and they got permission from Gram Panchayat, Gorantla and constructed a House in the said item No.1 of the Suit Schedule Property.

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Addl.JCJ, Penukonda

Further, Ex.A-10/Proposed construction approval Plan issued to Plaintiff No.2 showing Road on the North side. The Photos produced before the Court shows that the Defendants are trying to raise construction attaching to the

Item No.1 of the Suit Schedule Property without leaving Rastha i.e., Item No.2 of the Suit Schedule Property which is only Access to the Plaintiffs House from the main road.

9.2On the other hand, the Defendants contended that the Plot No.48 in Survey No.233-2B was originally assigned to Fakruddin who is father of

Plaintiff No.1, but further contended that that the Plaintiff No.1 has no right to execute Ex.A-1/Gift Deed in favour of Plaintiff No.2. From the documents produced by the Plaintiffs and admission of the Defendants clearly shows that the Property belongs to the ancestors of the Plaintiffs. The Defendants produced Ex.B-1 to Ex.B-3, Ex.B-1 shows that the land in Survey No.233-2 is the Government land. There is no disputed with regard to the land in Survey

No.233-2 is the Government land and the State Government distributed to land less poor by laying plots and this is admitted fact. There is no dispute with regard to that the father of the Plaintiff No.1 is also one of the Assignee.

The dispute is with respect to whether there is a Road i.e., Item No.2 of the

Suit Schedule Property towards North of Item No.1 of the Suit Schedule

Property which is only Road to reach the Plaintiffs House. Ex.B-2 and Ex.B-3 recites that the Vendors of the Defendants sold land in Survey No.233-1 by making plots to different people by leaving road on North and South sides of the said Plots.

9.3If anybody wants to lay Plots and sell their land, they should get panchayat approval as per the AP Panchayatraj Rules and there are certain norms with respect to Roads. The Vendors of the Defendants might have left

Road in compliance with the rules of the Panchayat. Otherwise, they would not have left place for public use when they themselves own that land and they could fetch more money if they sell without leaving the road. A prudent man who has right over the land and fetching some profit, he will not leave roads for public use unless he is a great Philanthropist serving people. If the

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Addl.JCJ, Penukonda road is not left, the Plaintiffs along with other people who were given plots by the Government suffer great loss.

9.4Defendant No.3 died pending Suit and L.Rs are not brought on record. But Ex.B-3/Registered Sale Deed executed in favour of Defendant

No.3 discloses about the existence of Road in Item No.2 of the Suit Schedule

Property. Non adding of Legal Representatives of Defendant No.3 will not effect the Easementary Right of necessity of the Plaintiffs over item No.2 of the Suit Schedule Property.

9.5 Defendant No.1 was examined as DW-1, one of the Vendor of the

Defendants was examined as DW-2 and one third party to the Suit was examined DW-3. DW-1 in his Cross-Examination, deposed that he purchased said site and there is a Compound Wall. It shows that he raised Compound

Wall in the site. DW-2 one of the Vendor of the Defendants 1 & 3 deposed in his Cross-Examination, that he do not know the contents of his Chief

Examination Affidavit and the counsel for Plaintiffs asked him that whether his Chief Examination Affidavit read over to him and explained in Telugu, he remained silent without any reply which gives inference that his Chief

Examination affidavit is false and he did not want to depose any false in the court of law. DW-3 third party to the Suit deposed in his Cross-Examination, that there is Road between Plaintiffs’ House and Defendants’ house and width of the Road is 12 Feet. The evidences of Defendants are supporting Plaintiff’s

Claim that Item No.2 of the Suit Schedule Property is Rastha which defendants and others are using as road and they are obstructing plaintiffs by proclaiming that entire land owns by their Vendors and they have only have right to use the Road left by their Vendors. Road is a road for all purpose, no construction is permitted to block the road.

9.6 Even in Ex.A-7 the Mandal Surveyor after surveying the land and submitted report giving permission to the Plaintiff No.2 no objection for construction in the Item No.1 of the Suit Schedule Property. The Item No.2 of the Suit Schedule Property is described as road in Ex.A-7 as northern

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Addl.JCJ, Penukonda boundary. From all the evidences before court it is clear that the Plaintiffs cannot and could not enjoy their property unless a Road is left for them to reach their house from the main road through said Road, item no.2 of suit schedule property. Therefore, Plaintiffs are entitled for Easementary Right on the ground of necessity over the Item No.2 of the Suit Schedule Property.

10. ISSUE Nos.1 to 3:

In view of the above observations and findings of this Court issue

Nos.1 to 3 are answered accordingly in favour of Plaintiffs and against the

Defendants.

11. ISSUE No.4: To What relief?

11.1IN THE RESULT, the Plaintiffs Suit claiming for Easementary Right has been Decreed with Costs declaring that the plaintiffs have Easementary right of using the Rastha i.e., Item No.2 of the Suit Schedule Property as shown in the Plaint Plan to reach Item No.1 of the Suit Schedule Property.

Consequently Defendants and their men are directed not to interfere with

Plaintiffs’ Easementary Right to use Rastha i.e., Item No.2 to reach Item No.1 of the Suit Schedule Property by Perpetual Injunction.

Dictated to the Stenographer Grade III, transcribed by him, corrected

and pronounced by me in the open Court on this, the 17th day of February 2021.

ADDITIONAL JUNIOR CIVIL JUDGE

PENUKONDA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS

PW-1S.Ashmath Bee PW-2Shaik Rahamthulla PW-3S.Babjan PW-4S.Rahamthulla

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Addl.JCJ, Penukonda

FOR DEFENDANTS

DW-1M.Venkataswamy DW-2B.Nagabhushanam DW-3 Y.C.Obulappa

DOCUMENTS MARKED FOR PLAINTIFFS

Sl.No. Date of Description of Document Document Ex.A-1 / PW-127.08.1990Registered Gift Deed executed by Plaintiff No.2 in favour of the Plaintiff No.1 Ex.A-2 / PW-1–House Tax Receipts five in Number Ex.A-3 / PW-1–House Tax demand notice Ex.A-4 / PW-120.03.2009Special Notice issued by Gram Panchayat, Gorantla Ex.A-5 / PW-120.03.2008Special Notice issued by Gram Panchayat, Gorantla Ex.A-6 / PW-122.10.2010Certificate issued by Panchayat Secretary, Gorantla Ex.A-7 / PW-113.06.2011Mandal Surveyor Report to Gram Panchayat, Gorantla in Dis.No.178/2011-B, Ex.A-8 / PW-1–Photographs three in Number Ex.A-9 /PW-1–Plaint Plan Ex.A10 / PW-1–Proposed Construction Plan in Sy.No.233-1B issued to Plaintiff No.2

DOCUMENTS MARKED FOR DEFENDANTS

Sl.No. Date of Description of Document Document Ex.B-1 / DW-1---Attested Copy of Adangal Phani for Sy.No.233-2 of Gorantla Revenue Village Ex.B-2 / DW-117.03.2001Original Registered Sale Deed stands in the name of Defendant No.1 Ex.B-3 / DW-1 17.03.2001Original Registered Sale Deed stands in the name of Anjali Devi.

ADDITIONAL JUNIOR CIVIL JUDGE

PENUKONDA

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Addl.JCJ, Penukonda

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE AT

PENUKONDA

PRESENT: Smt K.M.ZAMRUTH BEGUM

ADDITIONAL JUNIOR CIVIL JUDGE,

PENUKONDA

THURSDAY, THE FOURTH DAY OF FEBRUARY

TWO THOUSAND AND TWENTY FIRST

O.S.No. 96 OF 2012

BETWEEN :

01. Torla Narayana

02. Torla Ademma died by Lr, Plaintiff No.3

03. Torla Adisesha … PLAINTIFFS

AND 01.Torla Anjineyulu, Died by LRs D-2 to D-4, 02.T.Laxminarasamma 03.T.Arunamma 04.T.Siva Kesava (Amended as per orders in I.A.No.835/2017, dt.20.06.2018) … DEFENDANTS

This suit is coming on 04.02.2021 before me for final hearing in the presence ofSri Md.Asif,Counsel for Plaintiffsand of Sri T.Chandrasekhar Reddy, Counsel for Defendant Nos.1 to 4, upon hearing arguments on both sides, upon considering the material available on record and the having stood over the matter for consideration till this day, the Court deliver the following:

:: J U D G M E N T ::

1.This is a suit for Partition and Separate Possession of Plaintiff’s 2/3rd share in the Suit Schedule Properties with metes and bounds and for actual delivery of possession of separated Property to the Plaintiffs and for such other reliefs.

2. CASE OF THE PLAINTIFFS, SUCCINCTLY :

2.1The Plaintiff No.1, Defendant No.1 and T.Pothanna are brothers and they constitute Hindu Joint Family. The Plaint Schedule Properties have been acquired from the ancestors of Plaintiff No.1, Defendant No.1 and

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Pothanna. The Plaint Schedule Properties were in joint Possession and enjoyment of Torla Madanna who is the father of Plaintiff No.1, Pothanna and

Defendant No.1. The said Madana died interstate leaving behind his three sons i.e., Plaintiff No.1, Pothanna and Defendant No.1 as his heirs who succeeded entire estate of their father i.e., Plaint Schedule Properties. The said Madanna also got two daughters Sanjeevamma and Chennamma and they did not claim any share in the Suit Properties owing to the expenses of their Marriages and receiving amounts from their father during his lifetime.

Previously, by taking undue advantage of the innocence of their father, the

Defendant No.1 used to conceal the Joint Family funds out of the reach of their father and also brought some false documents into existence in respect of some of the Properties of the Joint Family even during the life time of their father and when his father came to know about the same, he canceled the alleged documents. Pothanna and Plaintiff No.1 looked after their father well during his old age by providing all kinds of facilities to him.

2.2After demise of their father Madanna, the Defendant No.1 created false and fictitious documents in respect of Suit Schedule Properties to deceive and defraud his brothers Pothanna and Plaintiff No.1 from getting their legitimate share in the Suit Schedule Properties. The Plaintiff No.1 and said Pothanna called Defendant No.1 for division of Joint Family Properties in a peaceful manner, for which the Defendant No.1 refused to come forward and continuing his unlawful efforts. Plaintiff No.1 and said Pothanna got issued Legal Notice to Defendant No.1 on 13.02.2012 and no reply given by the Defendant No.1. unfortunately said Pothanna died interstate on 15.02.2012 leaving behind his wife Plaintiff no.2 and a son Plaintiff No.3 as his only heirs who inturn succeeded to 1/3rd Joint share in Schedule mentioned properties. The Plaintiff No.1 is entitle to 1/3rd share, the Plaintiff

Nos.2 & 3 together will get 1/3rd share and remaining 1/3rd share will go to

Defendant No.1.

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Addl.JCJ, Penukonda 2.3 Item Nos.5 to 7are assigned to Plaintiffs and not considered as

Joint Family Properties and never in Joint Possession and enjoyment of

Plaintiffs and Defendant and the same added for proper adjudication of the

Properties legally to avoid any complication in future. During the pendency of the Suit, the Defendant No.1 died on 04.09.2017and Defendant Nos.2 to 4 were added as Legal Heirs of Defendant No.1. Hence the Plaintiffs filed the

Suit to grant Preliminary Decree for partition and separate Possession of

Plaintiffs’ 2/3rd Share in the Suit Schedule Properties and actual delivery of

Possession of separate property to the Plaintiff.

3. CASE OF THE DEFENDANTS, IN NUTSHELL :

3.1The Defendant No.1 admitted the relationship that the Plaintiff

No.1 and Pothanna are his brothers and denied other material contentions of the Plaintiffs. Then Defendants submits that except the Item No.1 of the Suit

Schedule Properties, all other Properties i.e., Item No.2 to 4 are the

Government Lands and assigned in favour of T.Madanna who is the father of

Defendant No.1, Plaintiff No.1 and Pothanna and he was in exclusive

Possession and enjoyment of the Suit Schedule Properties during his life time.

The Plaintiff No.1 and Deceased T.Pothanna have neglected welfare of their father during his life time and even they did not provide any facilities and did not care to visit their father when he was ill. While the Defendant has nursed his father and looked after the welfare and well being of him from the beginning. The Item No.2 to 4 of the Suit Schedule Properties were the self acquired Properties of the father of Defendant No.1 i.e., T.Madanna as he got the same from the Government as an assignment lands. Out of love and affection towards Defendant No.1, said Madanna in sound state of mind with free volition has bequeathed the Item Nos.2 to 4 of the Suit Schedule

Properties which are the self acquired Properties of him in favour of the

Defendant No.1 under Registered Will dated 17.06.2008.

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Addl.JCJ, Penukonda 3.2Pothanna died on 27.03.2011. the Defendant No.1 as legatee under the above said Will became the exclusive owner of Item Nos.2 to 4 of the Suit Schedule Properties. Either the Plaintiff No.1 and Deceased

Pothanna or their legal heirs who are Plaintiff Nos.2 & 3 have no right over the Suit Items Nos.1 to 4. The Plaintiffs knows well about the execution of

Registered Will with regard to Items Nos.2 to 4 of the Suit Schedule Properties in favour of Defendant No.1.

3.3Considering the Possession and enjoyment over the Suit Schedule

Properties by the Defendant No.1, the Tahsildar of Penukonda has issued

Pattadar Passbook and Title Deed in favour of the Defendant No.1 as per ROR

Act in respect of the Items Nos.2 to 4 of the Suit Schedule Properties as well as with regard to Item No.1 of the Suit Schedule Property. The Defendant

No.1 got Item No.1 of the Suit Schedule Property in the division of the Joint

Family Properties in between his brothers and father.

3.4Other than, the Item No.1 of the Suit Schedule Property, the Joint family also owned lands in Munimadugu Village Polam in Survey No.66-1 an extent of Ac.2-29 cents, Survey Number 6-1 an extent of Ac.2-01 cents,

Survey No.6-2 an extent of Ac.1-18 cents and also a House Site and Kottam situated in Gutturu Village an extent of Ac.0-03 cents. During the life time of the father of the Plaintiff No.1, the Defendant No.1 and Pothanna have effected division of their Joint Family Properties about 20 years back orally considering the Good and Bad Soil. In the said Division, the Defendant No.1 has given Item No.1 of the Suit Survey Number and the Plaintiff No.1 was given lands in Survey No.6-1 an extent of Ac.2-01 cents and Survey No.6-2 an extent of Ac.1-18 cents, total extent of Ac.3-18 cents Munimadugu Polam.

The Deceased Pothanna was given land in Survey No.66-1 an extent of

Ac.2-29 cents of Munimadugu Polam. After the death of Pothanna, the

Plaintiff Nos.2 & 3 are in Possession and Enjoyment of the lands fallen to the share of Pothanna and the Sister of Plaintiff No.1 and Defendant No.1 was also given a House Site and Kottam situated in Gutturu an extent of Ac.0-03 cents. Considering their Possession over the lands allotted to them, the

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Revenue Authorities also issued Pattadar Passbook and Title Deed in their favour. The present Suit is a mischievous one with all false allegations with sole intention of knocking away the Properties of the Defendants which got under Registered Will dated 17.06.2008 executed by his father in favour of him with regard to suit Schedule Properties.

3.5The Plaintiffs have not included the Properties situated at

Munimadugu Village Polam and he has site and Kottam situated at Gutturu and hence the Suit for Partition is not maintainable. As admitted by the

Plaintiff, T.Madanna has two daughters namely Sanjeevamma and

Chenamma and they are proper and necessary parties to the Suit and hence the Suit is bad for non-joinder of necessary Parties. The Revenue Records clearly speaks that the entire Suit Schedule Properties are belong to the

Defendants and they are in Possession and enjoyment of the Suit Schedule

Properties. The Defendant No.1 has also raised Crop Loan in ING Vysa Bank

Lts., Penukonda with respect to the Suit Schedule Properties and he is the absolute owner and he is in Possession and Enjoyment of the Suit Schedule

Properties. There is no joint possession as alleged by the Plaintiffs and there is no peace of evidence to show that the Plaintiffs are in joint Possession of the Suit Schedule Properties with the Defendants. Hence, prayed dismiss the

Suit with costs.

5. ISSUES :

Basing on the respective pleadings of Plaintiffs and Defendants, the following issues were settled for trial.

1. Whether the Suit for Partition and Separate Possession of the Plaint Schedule Properties to the

instance of 2/3rd share is maintainable?

2. Whether the Suit Schedule Properties are in Joint Possession and enjoyment with the Plaintiffs and Defendants?

3. Whether the preliminary Decree is passed?

4. If so what relief ?

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6. TRIAL PROCEEDINGS :

During trial, the Plaintiff No.2 was examined as PW-1 and got exhibited Ex.A-1 to Ex.A-6. The Plaintiffs also got examined PW-2. On the other hand, the Defendant No.2 was examined as DW-1 and got exhibited

Ex.B-1 to Ex.B-3. The Defendants also got examined DW-2 & DW-3. All the testimonies of PW-1 & PW-2 & DW-1, DW-2 & DW-3 are very much available on record in the form of depositions and the same are not reproducing here to avoid repetition.

7.The learned Counsels for the Plaintiffs and Defendants filed

Written Arguments and the same is made form part of record.

8.Perused the material available on record.

8.This Court is inclined to answer the Issues 1 to 3 together since both are interrelated to each other.

9. ISSUE Nos.1 to 3:

9.1The Plaintiff No.2 was examined as PW-1 and reiterated the same facts stated in the Plaint in her Chief Examination Affidavit and got marked the following documents:

Ex.A-1 is the Genealogy;

Ex.A-2 is the Office copy of Notice dated 13.02.2012;

Ex.A-3 is the RP Acknowledgment Card served on Defendant No.1 dated 18.02.2012;

Ex.A-4 is the Registered Gift Deed dated 11.03.1996 with respect to Item

No.1 of the Suit Schedule Property;

Ex.A-5 is the Registered Gift Cancellation Deed dated 05.02.1997; and

Ex.A-6 is the Endorsement with respect to Ex.A-4 issued by the Tahsildar,

Penukonda in RTA No.76/2019, dated 17.12.2019 with Photocopy of

Memorandum of Patta attested by Deputy Tahsildar, Penukonda.

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Addl.JCJ, Penukonda 9.2During Cross-Examination, PW-1 deposed that Item Nos.2 to 4 of

Suit Schedule Properties are Government Lands and they are assigned to

Madanna and the same was enjoyed jointly. PW-1 further deposed that she do not know whether Madanna has executed a Registered Will dated 17.06.2008 in favour of Deceased Defendant No.1 and Madanna died about 8 years ago. PW-1 admitted that they own lands in Munimadugu Village Polam in Survey No.66-1 an extent of Ac.2-29 cents, Survey No.6-1 an extent of

Ac.2-01 cents, Survey No.6-2 an extent of Ac.1-18 cents and also House Site and Kottam situated in Gutturu an extent of Ac.0-03 cents. PW-1 further admitted that Cehnnamma is a sister of her husband and a Hut situated in

Ac.0-03 cents at Gutturu given to her. PW-1 further deposed that they got

Pattadar passbooks for the sake of obtaining loans. PW-1 further admitted that the sisters of her husband are not shown as parties to the Suit. PW-1 also admitted that the marriages of Chennamma and Sanjeevamma were preformed about 20 years ago and were given with some property at the time of their marriages and she has not filed any documentary proof to show that properties were given to Chennamma and Sanjeevamma. PW-1 also admitted that Madanna possessed Ac.2-66 cents at the time of Assignment of

Item Nos.2 to 4 of the Suit Schedule Properties.

9.2One B.Adiseshu was examined as PW-2 and stated in his Chief

Examination Affidavit that he know the Plaintiffs and Defendants in the Suit and also know the Suit Schedule Properties as his land is situated near by to the Suit Lands. PW-2 further stated that T.Pothanna, Plaintiff No.1 and

Deceased Defendant No.1 are brothers and sons of T.Madanna and they used to live jointly. The Item Nos.1 to 4 of the Suit Schedule Properties are their joint family Properties and they were joint Possession and enjoyment of

Pothanna, Plaintiff No.1, Deceased Defendant No.1 and their father Madanna.

PW-2 further stated that Madanna died interstate leaving behind his three sons who inturn succeeded entire estate of their father i.e., Item Nos.1 to 4 of

Suit Schedule Properties. PW-2 also stated that the Suit Schedule Properties are not partitioned among the Plaintiffs and Defendants and they all are enjoying the Suit Schedule Properties jointly till today.

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Addl.JCJ, Penukonda 9.3During Cross-Examination, PW-2 deposed that he do not know whether the Madanna was issued Patta in respect of Item Nos.1 to 4 of the

Suit schedule Properties. PW-2 further deposed that Madanna executed a

Registered Will Deed on 17.06.2008 in favour of Defendant No.1 in respect of

Items 2 to 4 of the Suit Schedule Properties. Again PW-2 stated that

Madanna canceled the said Will Deed and he did not file any document to show that the said Madanna has cancelled the said Will Deed. PW-2 admitted that the Government issued Pattadar Passbook to the Defendant in respect of

Item Nos.1 to 4 of the Suit Schedule Properties. PW-2 again says that the

Plaintiff No.1, Defendant No.1 and Pothanna are cultivating the Properties by raising Crops.

9.4The daughter of Defendant No.1 i.e., Defendant No.2 was examined as DW-1 and reiterated the same facts stated in the Written

Statement in her Chief Examination Affidavit and exhibited the following

Documents;

Ex.B-1 is the Pattadar pass Book with respect to the Suit Schedule Properties stands in the name of Madanna;

Ex.B-2 is the Death Certificate of Madanna dated 31.03.2011; and

Ex.B-3 is the Registered Will Deed with respect to Item Nos.2 to 4 of the Suit

Schedule Properties dated 09.09.2016.

9.5During Cross-Examination, DW-1 deposed that she know the Suit

Schedule Properties and the Suit Schedule Properties are the properties of her grandfather T.Madanna. DW-1 admitted that prior to the marriage of her father, her father and his brothers are in Joint Family and partitioned their

Joint Family Properties in the year 2008. DW-1 further deposed that at the time of partition, her grandfather was alive and she was not present at the time of partition and her parents informed about the partition. DW-1 further deposed that the document was reduced into writing regarding the Partition and she saw the said document and she filed the same in the Court. DW-1 further deposed that her grandfather died in the year 2011 and she was not present at the time of execution of Will dated 17.06.2008 and she do not

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Addl.JCJ, Penukonda know who were present at that time. DW-1 further deposed that the above said Will was executed at Penukonda. DW-1 further deposed that she saw the above said Will and she filed the same into the Court. DW-1 admitted that

Suit Schedule Properties are the Government lands and was assigned to her grandfather and the two daughters of her grandfather did not raise any objection regarding partition. DW-1 further admitted that the two daughters of her grandfather never asked the share in their Joint Family Properties either before or after the death of her grandfather because their grandfather performed their Marriages by incurring the amounts equal to their share in the Properties. DW-1 further admitted that Item Nos.5 to 7 of the Suit

Schedule Properties were assigned to the husband of Plaintiff No.2 by name

Pothanna and Plaintiff No.1 and pattas are also standing on their names.

DW-1 further deposed that she know the contents of the Written Statement filed by the Defendant No.1. DW-1 further deposed that Defendant Nos.3 & 4 and herself were present at the time of execution of Ex.B-3 and they had knowledge about the pendency of this Suit by the time of execution of

Ex.B-3. DW-1 further deposed that the contents of Ex.B-3 are true and correct and she admitted that her father did not cancel Ex.B-3 and he did not execute any other Testamentary document after execution of Ex.B-3 and her father died in the year 2017. DW-1 further deposed that her father did not file

Ex.B-3 into the Court. DW-1 further deposed that she know that her grandfather got canceled Ex.A-4 through Ex.A-5 and she has no document to say that her father and grandfather and the husband of 2nd Plaintiff are cultivating the lands separately. DW-1 denied the suggestion that the

Plaintiffs got issued Ex.A-2/Legal Notice to the Defendant No.1 demanding for

Partition and Separate Possession of the Suit Schedule Properties. DW-1 identified the Signatures of Defendant No.1 on the Written Statement and

Ex.A-3. The Counsel for the Plaintiff put many suggestions, but DW-1 denied all the suggestion.

9.6Boya Pothanna third party to the Suit was examined as DW-2 and stated in his Chief Examination Affidavit that he know both Plaintiffs and

Defendants. DW-1 further stated that the Item No.1 of the Suit Schedule

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Property and other properties i.e., Item Nos.2 to 4 are the Government Lands and assigned in favour of T.Madanna, who is the father of Defendant No.1,

Plaintiff No.1 and Pothanna. He further stated that Madanna was in exclusive

Possession and Enjoyment of the Suit Schedule Properties during his life time and Plaintiff No.1 and Deceased T.Pothanna have neglected the welfare and well being of their father during his life time and they did not care to visit

T.Madanna even when he fell ill. DW-2 further stated that Defendant No.1 has nursed his father and looked after the welfare and well being of him from the beginning. DW-2 further reiterated the same facts stated in the Written

Statement.

9.7During Cross-Examination, DW-2 deposed that he know all the

Suit Schedule Properties and the father of the Plaintiff No.1 by name

Madanna purchased the Suit Schedule Properties and he do not know their

Survey Numbers. DW-2 further deposed that he was present at the time of purchase and the Sale Deed was reduced into writing at Guttur Village regarding the purchase and he attested the said Sale Deed. DW-2 further deposed that Madanna died about 3 years ago and he do not know whether there was any document regarding the Division of sons of Madanna. DW-2 further deposed that Madanna was in Possession and enjoyment of the

Properties till his demise and he do not know the particulars of the Properties which were in the respective Possession and enjoyment of the sons of

Madanna. DW-2 further deposed that he was present at the time of Will Deed

dated 17.06.2008. He also deposed that Madanna executed the said Will in

favour of the Defendant No.1 in respect of the property of Ac.3-80 cents and he do not know the particulars of the Properties which were not mentioned in the Registered Will dated 17.06.2008. The Plaintiff counsel posed suggestions to DW-2, he denied all the suggestions.

9.8P.Babu third party to the Suit was examined as DW-3 and stated in his Chief Examination Affidavit that one Thorla Anjineyulu S/o Madanna has executed Registered Will in favour of son and two daughters by name

T.Sivakesava, S.Lakshminarasamma and V.Aruna on 09.09.2016. DW-3

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Addl.JCJ, Penukonda further stated that he was one of the Attestor of the Will along with

K.Muthyalu and one K.R.Surendra document writer who scribe Will under the instructions of Anjineyulu.

9.9During Cross-Examination, DW-3 deposed that Ex.B-3/Will Deed

dated 09.09.2016 was executed in respect of the Lands in Survey No.120-2

and 120-3 and he could not say their extents. DW-3 further deposed that the daughters and son of the Deceased Defendant No.1, one Muthyalu and himself were present at the time of execution of Ex.B-3 and the contents of

Ex.B-3 were read over to them. DW-3 admitted that the Defendant No.1 and his children did not raise any objection on the contents of Ex.B-3 and

Defendant No.1 did not inform him about the pendency of this Suit and further deposed that Defendant No.1 did not cancel Ex.B-3. DW-3 further admitted that Ex.B-3 contains a Recital that “After his demise, his only daughter by name Anitha will become the absolute owner of the property covered under it and the other heirs have no right over the Property and further admitted that the said Anitha is not a Party to the Suit. DW-3 also admitted that his brother-in-law is the relative of the Defendant Nos.3 and 4.

10.On evaluation of all the material evidences before the Court, the following observations were made:

10.1The Plaintiffs filed the Suit for the Partition of Ancestral Joint

Family Properties. In order to prove their claim, they produced Ex.A-1 to

Ex.A-6. But, no document produced before the Court to show that the Suit

Schedule Properties are the Ancestral Joint Family Properties of the Plaintiffs and Defendants. In addition to that Ex.A-6/Endorsement issued by Tahsildar,

Penukonda discloses that Item Nos.2 to 4 of the Suit Schedule Properties were assigned to T.Madanna which was against to the claim of the Plaintiffs that the Suit Schedule Properties are Ancestral Joint Family Properties of the

Plaintiff and Defendant No.1. Any assigned Property is a self acquired

Property of that particular person. Hence, Item Nos.2 to 4 of the Suit

Schedule Properties are the self acquired Properties of T.Madanna.

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Ex.A-4/Registered Gift Deed dated 11.03.1996 which discloses that

T.Madanna gifted the Item No.1 of the Suit Schedule Property to Defendant

No.1 with hope that he will take care of him during his old age.

Ex.A-5/Registered Gift Cancellation Deed dated 05.02.1997 discloses that

T.Madanna intended to Cancel the Gift Deed Ex.A-4 as Defendant No.1 is not taking care of him. When the Gift is made and the same was accepted by the

Donee, there is no other form of Cancellation of the Gift except approaching the Court on the contention of fraud or misrepresentation. The Registration of Gift Cancellation Deed is unknown to law, so Ex.A-5 cannot be relied upon.

PW-2 also stated that Will dated 17.06.2008 was executed by T.Madenna in favour of Defendant No.1 with respect to Suit Schedule Properties, but he stated that the said Will was canceled subsequently by T.Madanna for which there is no evidence. Suit Schedule was amended as per orders in I.A.No.184 of 2017 dated 20.06.2018 adding Item Nos.5 & 6 without proper description as to in which Village said Properties exists. PW-1 in her Cross-Examination clearly stated that Item Nos.5 & 6 exists in Munimadugu Village. Which gives impression that the Plaintiffs intentionally wants to suppress the facts before the Court.

10.2On the other hand, the daughter of Defendant No.1 was examined as DW-1 and deposed that her grandfather executed Registered

Will Deed dated 17.06.2008 in favur of her father with respect to Item Nos.2 to 4 of the Suit Schedule Properties. The Registered Will Deed dated 17.06.2008 was produced before the Court in I.A.No.296/2012 along with

Ex.B-1 and Ex.B-2, but the same was not marked due to over sight and the same was discussed by the both counsels and also lead evidence with respect to that, but was not brought to notice of the Court even at the time of arguments. While preparing Judgment, the same was noticed by the Court, hence the Registered Will Deed dated 17.06.2008 is marked as Ex.C-1 by the

Court Suo moto in the interest of justice. Ex.C-1 clearly recites that

T.Madanna with sound health and volition executed the Will with respect to

Item Nos.2 to 4 of the Suit Schedule Properties in favour of Defendant No.1 as he is taking care of him during his old age. Further, Ex.B-1/Pattadar Passbook

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Addl.JCJ, Penukonda shows that Item No.1 to 4 of the Suit Schedule Properties stands in the name of T.Madanna. Ex.B-2/Death Certificate of D.Madanna dated 31.03.2011 discloses that he executed Ex.C-1/Registered Will Deed with respect to the

Item Nos.2 to 4 of the Suit Schedule Properties in favour of Defendant No.1 three years prior to his death.

10.3Moreover, DW-2 and DW-3 third parties to the Suit were examined on behalf of Defendants though they have not deposed to the point of Suit and some what throwing some light pertaining to the existence and execution of Ex.C-1/Registered Will dated 17.06.2008 and Ex.B- 3/Registered Will Deed dated 09.09.2016.

10.4The Plaintiffs have no right to claim Partition in the Suit Schedule

Properties because in Ex.C-1, the Donor T.Madanna stats that he gave some

Properties in Munimadugu Village to other two sons. During Cross-

Examination, PW-1 also admitted in her Cross-Examination that they own lands in Munimadugu Village in Survey No.66-1 an extent Ac.2-29 cents,

Survey No.6-1 an extent of Ac.2-01 cents, Survey No.6-2 an extent of Ac.1-18 cents and also House Site and Kottam situated in Gutturu an extent of Ac.0- 03 cents, which is corroborating with recitals of Ex.C-1 and which clearly shows that some family arrangement was made by T.Madanna with regard to his Properties and Plaintiffs and Defendant No.1 each got some Properties in that family arrangement. The Plaintiff has not taken any initiations to disprove Ex.C-1 which gives the impression that the Plaintiffs are suppressing the facts before the Court.

10.5All the above attending circumstances leads to conclude that the

Plaintiffs are not entitled for Partition and Separate Possession as prayed for due to observations made above. These Issue Nos.1 to 3 are answered accordingly in favour of the Defendants and against the Plaintiffs.

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11. ISSUE No.4: To what relief ?

12.IN THE RESULT, the suit is Dismissed without Costs.

Dictated to the Stenographer Grade III, transcribed by him,

corrected and pronounced by me in the open Court on this, the 04th day of February 2021.

ADDITIONAL JUNIOR CIVIL JUDGE

PENUKONDA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS

PW-1T.Ademma PW-2B.Adiseshu

FOR DEFENDANTS

DW-1Lakshminarasamma DW-2Boya Pothanna DW-3P.Babu

DOCUMENTS MARKED FOR PLAINTIFFS

Sl.No. Date of Description of Document Document Ex.A-1 / PW1–Genealogy Ex.A-2 / PW113.02.2012Office Copy of Notice Ex.A-3 / PW118.02.2012RP Acknowledgment Card served on Defendant No.1 Ex.A-4 / PW111.03.1996Registered Gift Deed Ex.A-5 / PW105.02.1997Registered Gift Cancellation Deed Endorsement issued by the Tahsildar, Ex.A-6 / PW117.12.2013Penukonda in RTA No.76/2019, dated 17.12.2019.

DOCUMENTS MARKED FOR DEFENDANTS

Sl.No. Date of Description of Document Document Ex.B-1 / DW1–Pattadar Passbook Ex.B-2 / DW131.03.2011Death Certificate Ex.B-3 / DW109.09.2016Registered Will Deed

DOCUMENTS MARKED FOR COURT

Sl.No. Date of Description of Document Document Ex.C-1 17.06.2008Registered Will Deed

ADDITIONAL JUNIOR CIVIL JUDGE

PENUKONDA

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Addl.JCJ, Penukonda

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE AT

PENUKONDA

PRESENT: Smt K.M.ZAMRUTH BEGUM

ADDITIONAL JUNIOR CIVIL JUDGE,

PENUKONDA

WEDNESDAY, THE SEVENTEENTH DAY OF JUNE

TWO THOUSAND AND TWENTY

O.S.No. 119 OF 2011

BETWEEN:

01. Dasari Kollapurappa

02. Dasari Chinna Kollapuri… PLAINTIFFS AND

01. B.Arthur Symon

02. G.Kristappa … DEFENDANTS

This suit is coming on 27.02.2020 before me for final hearing in the presence of Sri G.Malli Reddy, Counsel for Plaintiffs and of Sri D.V.Siva Reddy, Counsel for the Defendants, upon hearing arguments on both sides, upon considering the material available on record and the having stood over the matter for consideration till this day, the Court deliver the following:

:: J U D G M E N T ::

1.This is a suit for Perpetual Injunction filed by the Plaintiffs restraining the Defendants 1 & 2 and their men from obstructing the construction of a House and Compound Wall in the Suit Schedule Property and awards costs of the Suit.

2. CASE OF THE PLAINTIFFS, SUCCINCTLY, IS AS FOLLOWS:

2.1The Schedule mentioned Property originally belonged to Mangala

Subbanna. Golla Henumanthu grandfather of the Plaintiffs purchased the schedule mentioned property from Mangala Subbanna under Registered Sale deed dated 06.04.1910 for a valid consideration of Rs.20/-. The said Golla

Hanumanthu executed Registered Will in favour of his wife Nagamma bequeathing the Schedule mentioned Property dated 20.02.1939. After the

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O.S.No.119 of 2011 Date: 17.06.2020

Addl.JCJ, Penukonda death of Hanumanthu, the Will came into force and acted upon. The said

Nagamma W/o Hanumanthu filed a Suit in O.S.No.31 of 1948 against her son

Yadava Chalapathi (Father of the Plaintiffs). The said Suit was ended in compromise dated 18.02.1949. In that compromise, the said Nagamma gave

Suit Schedule mentioned Property to Dasari Anjaneyulu S/o Chalapathi (The eldest brother of the Plaintiffs). The said Dasari Anjaneyulu died on 06.02.1950 at the age of 4 years and after the death of Dasari Anjaneyulu, the Suit Schedule Property devolved on dasari Chalapathi with existing House

No.6/154. After the death of Dasari Chalapathi, the Suit Schedule Property was in Possession and Enjoyment of the Dasari Lakshmamma W/o Dasari

Chalapathi (Mother of the Plaintiffs). During lifetime of Lakshmamma, the

Gram Panchayat assigned the Door No.6-204. After the death of mother of the Plaintiffs, the Suit Schedule Property came into occupation of the

Plaintiffs.

2.2Ever since, the Plaintiffs have been in continuous Possession and

Enjoyment of the Suit Schedule Property. The Plaintiffs intended to construct a new House in the Schedule mentioned Property and applied for permission to Gram Panchayat, Penukonda to construct the House in the Suit Schedule

Property. The Gram Panchayat, Penukonda granted permission in

B.A.No.77/2010-11, dated 11.03.2011 to construct a House in the Schedule mentioned Property. The Plaintiffs collected all the materials for the proposed constructed House in the Schedule mentioned Property.

2.3The Defendants have no Right, Title or Possession over the

Schedule mentioned Property and obstructing the Plaintiff from constructing the House and Compound Wall infront of the proposed House. The

Defendants are rich and influential persons in the Village and they are vehemently trying to dispossess the Plaintiffs from the Schedule mentioned

Property. Hence, the Plaintiff filed the present Suit praying Permanent

Injunction against Defendants.

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3. CASE OF THE DEFENDANTS, IN NUTSHELL IS AS UNDER:

3.1The Suit is bad in law, unjust and not maintainable on facts. The

Defendants denied the allegation that the Plaint Schedule Property originally belongs to one Mangala Subbanna. The Defendants further denied the allegation that the grandfather of the Plaintiffs by name Golla hanumanthu purchased the Plaint Schedule Property under Registered Sale deed dated 05.02.1910 for valid consideration of Rs.20/- and submits that the Sale deed shows the measurements of the House is East – West 4 Yards and North –

South 8 Yards only and measurement of the Suit Schedule Property is not tallying with the Sale deed. The Defendants further denied the allegation that Golla Dasari Hanumanthu executed a Will in favour of Nagamma under

Registered Will dated 20-02.1039 in respect of the Suit Schedule Property and stating that the said Will did not show any measurements, extent, Door

Number and Survey Number.

3.2The Defendants Submits that the wife of Hanumanthu was in

Possession of the Schedule mentioned property does not arise as she was not holding any right over the Suit Schedule Property. The Defendants further submits that as per the Sale Deed and the Will, the said Nagamma has Right

East – West 4 yards and North – South 8 Yards only and how the said

Nagamma had remaining extent of the Suit Schedule East – West 25 Feet and

North – South 25 Feet. The Plaintiffs did not mention in the Plaint that how they got the open place of East – West 25 Feet and North – South 25 Feet as shown in the Schedule and no document filed in respect of the open place in the Plaint Schedule Property.

3.3The Defendants further submits that they do not know whether

Nagamma filed a Suit O.S.No.31 of 1948 against Yadava Chalapathi who is the father of the Plaintiff and the said Suit ended with the compromise dated 18.02.1949. As per the above said compromise, Dasari Anjineyulu S/o

Yadava Chalapathi had right over the Property mentioned below.

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East: Open Place;

West: House of Mangala Venkatappa;

North: House of balija Nanjappa;

Souith: House of Kotnuru Narasamma; 3.4Hence, the said Anjinayulu had no right on open space shown in the Suit Schedule Property. The Defendants further submits that the compromise dated 18.02.1949 clearly shows the boundaries East – Open place, but the Plaintiff is claiming in the Suit including the open space. The

Defendants further submits that Gram Panchayat, Penukonda granted permission to the Plaintiffs to construct House in the Suit Schedule Property measuring East – West 15 Feet and North – South 25 Feet only and the boundary on the Eastern side of the said Plan is open place belongs to Gram

Panchayat on the basis of approved Plan, the Plaintiffs are trying to occupy

East – West 25 Feet and North – South 25 Feet. The Plaintiffs had and have no right over the open place of approved plan filed by them. If the Plaintiffs encroach in the open place of Eastern side of approved plan, the Defendant will suffer great loss as the Defendants got newly constructed building adjacent to the East of the Plaintiff’s House and open place on Southern side of their new building.

3.5The Plaintiffs filed this Suit with an intention to occupy the Gram

Panchayat Place and causing inconvenience to the Defendants and Public.

The Gram Panchayat, Penukonda also issued a Notice to the Plaintiffs on 05.05.2011 stating that not to make illegal construction in the Gram

Panchayat Place. The wife of Defendant No.1 obtained facts respect to the

Suit Schedule from Secretary, Gram Panchayat, Penukonda under RTA Act

dated 17.08.2011 and both documents was filed into the Court. When the

Plaintiffs made illegal construction in the Place of Gram Panchayat, the

Secretary and his Staff visited the Place and stopped the constructions, hence the Plaintiff filed the Suit. Under these circumstances, the Defendants prayed to dismiss the Suit with exemplary costs.

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Addl.JCJ, Penukonda

4.Basing on the respective pleadings of Plaintiffs and Defendants, the following issues were settled for trial.

1. Whether the Plaintiff is entitled for Permanent Injunction as prayed for ?

2. To What relief ?

5.During trial, the Plaintiff himself stepped into witness box as

PW-1, got examined PW-2 and exhibited Ex.A-1 to Ex.A-5. The wife of

Defendant No.1 was examined as DW-1 and exhibited Ex.B-1 & Ex.B02, on behalf of the Defendants the then Panchayat Secretary of Penukonda was examined as DW-2 and exhibited Ex.X-1 to Ex.X-3. The testimonies of PW-1,

PW-2, DW-1 & DW-2 are very much available on record in the form of depositions and the same are not reproducing here to avoid repetition.

6.Heard the learned counsel appearing for the Plaintiffs and the learned counsel appearing for the Defendants.

7.Perused the material available on record.

8. ISSUE No.1: Whether the Plaintiffs are entitled for

Permanent Injunction as prayed for?

8.1 The Plaintiff No.1 was examined as PW-1 and reiterated the same facts as stated in the Plaint, in his Chief Examination Affidavit and got marked the following documents.

i) Ex.A-1 – Certified Copy of Registered Sale Deed dated 06.04.1910 executed by Mangala Subbanna in favour of Golla Hanumanthu in respect of the Suit Schedule Property; ii) Ex.A-2 – Certified Copy of Registration Extract Will dated 20.02.1939 executed by Golla Hanumanthu in favour of his wife Nagamma in respect of the Suit Schedule Property; iii) Ex.A-3 – Certified Copy of Judgment in O.S.No.31 of 1948 on the file of District Munsif Court, Penukonda in respect of Suit Schedule Property;

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Addl.JCJ, Penukonda iv) Ex.A-4 – Death Certificate of D.Anjineyulu (elder son of

Y.Chalapathi and elder brother of Plaintiffs) dated 30.09.2008;

V) Ex.A-5 – Panchayat Approval for the construction of the house in the Suit Schedule Property dated 11.03.2011 in B.A.No.77/2010-11; 8.2During Cross-Examination, PW-1 has deposed that he was retired from service as Junior Veterinary Officer and he did not file any document to show that originally the Suit Schedule Property belongs to Mangala

Subbanna. PW-1 admitted that in Ex.A-1 it is mentioned that a Thatched

House is situated in the Suit Schedule Property and it has no Door Number.

PW-1 further admitted that there is no measurements were mentioned for open place. PW-1 further admitted that in Ex.A-2 no Door Number, Survey

Number and measurements for open Place was mentioned. PW-1 further admitted that in compromise Decree passed in O.S.No.31 of 1948, no measurements were mentioned for open place. PW-1 further admitted that

Gram Panchayat, Penukonda issued Notice to him stating that he is constructing House without their permission and directed him not to construct house.

8.3One Gorla Anjaneyulu third party to the Suit was examined as

PW-2. PW-2 stated in his Chief Examination Affidavit that he know both

Plaintiffs and Defendants in the above Suit and he is the neighbour to the

Plaintiff and Defendants. PW-2 further stated that the father of the Plaintiff namely Dasari Chalapathi was in Possession and Enjoyment of the Schedule mentioned property since his child hood and after the death of the father of the Plaintiff, the Plaintiffs succeeded the Schedule mentioned property as his

Legal Heirs. PW-2 further stated that the Plaintiffs obtained permission from

Gram Panchayat, Penukonda for Construction of House in the Suit Schedule

Property. PW-2 further stated that the Defendants have no Right, Title or

Possession over the Schedule mentioned Property and they are obstructing the Plaintiffs from constructing the House and Compound Wall in the Suit

Schedule Property.

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Addl.JCJ, Penukonda 8.4During Cross-Examination, PW-2 deposed that he do not know the

Survey Number of the Suit Schedule Property and the extent of Suit Schedule

Property from East – West 40 Feet and North – South 25 Feet. PW-2 further stated that the Suit Schedule Property originally belong to father of the

Plaintiffs, but he do not know the vendor of the Plaintiffs’ father. PW-2 further stated that he did not verify the Panchayat Approval which was given to

Plaintiff for construction of Compound Wall. PW-2 further deposed that the

Plaintiffs have been in Possession and enjoyment of the Suit Schedule

Property and the Plaintiff are his distance relatives. PW-2 further deposed that although in his Affidavit he revealed that he is the residing in 7th Ward, but he has a House in 6th Ward adjacent to the Suit Schedule Property.

8.5The wife of Defendant No.1 by name Manoranjani was examined as DW-1 and exhibited the following documents on behalf of Plaintiffs.

i) Notice issued by the Secretary, Gram Panchayat Penukonda to the Plaintiff dated 05.05.2011.

ii) Information furnished to the Wife of the Defendant No.1 by the

Secretary, Gram Panchayat, Penukonda in R.C.No.57/2011 dated 17.08.2011.

8.6DW-1 has stated in her Chief Examination Affidavit that the

Plaintiff filed a Suit against her husband and another for permanent

Injunction in respect of the Suit Schedule Property. DW-1 further stated that her husband is about 82 years old present and now he got more deaf and lost of Eye sight and he could not identify the persons and not able to speak clearly, hence she represent on behalf of her husband/Defendant No.1. DW-1 further submit that she know the facts of the Case and the Plaintiff house is having Southern face door and her house is adjacent to Eastern side house of

Plaintiff and Plaintiffs have not right or Possession over the open place which is on the Eastern side of her house. DW-1 further reiterated the same facts, which was already stated in the Written Statement.

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Addl.JCJ, Penukonda 8.7During Cross-Examination, DW-1 deposed that the Suit Schedule

Property is Ancestral Property of Plaintiffs. DW-1 admitted that the Suit

Schedule Property originally belonged to Mangala Subbanna and grandfather of the Plaintiff namely Golla Hanumanthu purchased the Property under

Ex.A-1/Registered Sale deed dated 06.04.1910 from the Mangala Subbanna and the Possession was delivered on the same day to the grandfather of the

Plaintiff. DW-1 further admitted that the said Property was bequeathed to his wife Nagamma under Ex.A-2/Registered Will Deed dated 02.02.1939 by Golla

Hanumanthu and after demise of Golla Hanumanthu, the Property devolved in the name of Nagamma and she was in Possession during her lifetime.

DW-1 further admitted that the said Nagamma filed s Suit in O.S.No.31 of 1948 on the file of Junior Civil Judge, Penukonda against her son Chalapathi who is the fatehr of the Plaintiff and the same was compromised on 18.02.1949 and as per the compromised arrived, the said property fell into the Share of Nagamma and the said Nagamma gave the Property to one

Dasari Anjineyulu who is the eldest brother of the Plaintiff. DW-1 further admitted that the elder brother of Plaintiff by name Dasari Anjineyulu died on 06.02.1950 at the age of 4 years. DW-1 further admitted that after the death of Dasari Anjineyulu, the property devolved on Chalapathi and after taking

Possession of the Property by Chalapathi, the Gram Panchayat Authorities assigned House No.6/154 and after the demise of Chalapathi, the said

Property is in Possession of Dasari Lakshmamma who is the mother of the

Plaintiff. DW-1 further admitted that the Gram Panchayat Authorities assigned new Door No.6/204 and after the death of the Mother of the

Plaintiff, the property devolved upon the Plaintiffs and the Plaintiffs are in

Possession of the Suit Schedule Property since then. DW-1 further admitted that Plaintiffs applied to Gram Panchayat Authorities seeking permission to construct a House in the Suit Schedule Property and the permission was granted under Ex.A-5 dated 11.03.2011. DW-1 further admitted that her

House is situated towards the Northern side of the Suit Schedule Property i.e., in the North – East corner of the House of the Plaintiff and they construct a compound Wall infront of their House. DW-1 further admitted that the Suit

Schedule Property is situated towards Southern side of their Compound Wall

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Addl.JCJ, Penukonda and again she says that the said Property belongs to Gram Panchayat. DW-1 further admitted that her daughter by name Sumana Jayanthi is working as

EORD in MPDO Office, Penukonda. DW-1 denied the suggestion that Gram

Panchayat Authorities are under the control of EORD and MPDO and by taking advantage her daughter position, they got issued a Notice to the Plaintiffs from the Gram Panchayat Authorities by influencing the Gram Panchayat

Authorities and also denied the suggestion that they are making efforts with a view to cause hardship to the Plaintiffs and objecting the construction by the Plaintiffs.

8.8One B.Aswarthappa, Panchayat Secretary was examined as DW-2 and stated in his Chief Examination Affidavit that he received Summons from the Court as per Orders in I.A.No.914 of 2017 in the present Suit and produced the following documents.

Ex.X-1 – Attested copy of approved Panchayath Plan dated 10.03.2013 pertaining the Door No.6/154 (6/165).

Ex.X-2 – Attested Copy of Proceedings of the Secretary Gram

Panchayat, Penukonda dated 11.03.2011.

Ex.X-3 – Attested Copy of Notice dated 05.05.2011.

8.9During Cross-Examination, DW-2 has admitted that as per Ex.X-1, the Plaintiff No.1 and 2 are permitted to raise constructions in the Plinth Area ad-measuring 15 X 25 Feet and as per the Proceedings of the Panchayat secretary, Penukonda dated 11.03.2011 the Plaintiffs constructed a House with the same measurements as mentioned in the Ex.X-1. DW-2 further deposed that the open site infront of the House constructed by the Plaintiffs belongs to the Gram Panchayat, Penukonda and it is a Gram Panchayat Road.

DW-2 further admitted that the Documents submitted by the Plaintiffs to them does not reflect the extent, but it only shows the boundaries of the

Property. DW-2 further admitted that the Plaintiffs raised Compound Wall in the open space situated infront of his House, the Panchayat Authorities demolished the same as it is a unauthorized construction. DW-2 further admitted that as per their records the said open space situated infront of the

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House of the Plaintiff belongs to Gram Panchayat, Penukonda and he has no

Idea whether the boundaries mentioned in their records are tallying with the boundaries of the Suit Schedule Property.

9On collective reading of all the materials and evidences produced

before the Court, the following observations are made:

i) Plaintiff has pleaded in his Plaint as well as in his Chief

Examination Affidavit that the Suit Schedule Property originally belongs to

Mangala Subbanna. The Grandfather of the Plaintiff purchased the Suit

Schedule Property from M.Subbanna under Ex.A-1/Registered Sale deed

dated 06.04.1910. A perusal of Ex.A-1 discloses that Mangala Subbanna in

order to clear his debts, he was selling the Property to Golla Hanumanthu for valid consideration of Rs.20/-. The description of the Property in Ex.A-1 is as follows:

East : Open Place;

West : House of Mangala Venkatappa

North : House of Basivi Nanjappa

South: House of Kotnuru Narasanna ii) There is clearly mention in Ex.A-1/that vendor delivered

Property described above along with open place in the East of the Suit

Schedule property.

iiI) Gorla Hanumanthu executed a Will in favour of his Wife

Nagamma under Ex.A-2/Registered Will. On perusal of Ex.A-2 there is a clear description of the Suit property as in the Ex.A-1.

iv) The Judgment in O.S.No.31 of 1948 in which compromise terms between parties are described Nagamma W/o Hanumanthu gave the

Suit Schedule Property which was described in Ex.A-1 and Ex.A-2 to Dasari

Anjineyulu the elder son of Y.chalapathi.

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v) The Plaintiffs in order to substantiate their claim, the Plaintiff

No.1 was examined as PW-1 and reiterated the facts pleaded in the Plaint and produced Ex.A-1 to Ex.A-5. On perusal of Ex.A-4 discloses that the death of

Dasari Anjineyulu S/o Chalapathi and a perusal of Ex.A-5 discloses that Gram

Panchayat, Penukonda has approved a Plan for the construction in the Suit

Schedule Property showing 15 X 25 for building and showing 25 X 25 open space in the East. If the open site of 25 X 25 belongs to Gram Panchayat it reflect in the Ex.A-5. Hence, which clearly goes to show that property does not belong to Gram Panchayat. Further, the Evidence of PW-2 further strengthened the version of the PW-1.

vi) On the other hand, the Defendant who denied the allegations of Plaintiff and questioned the Right of the Plaintiff over the open place measuring 25 X 25 in the East of proposed building and also stated that the open place measuring 25 X 25 in the Suit Schedule Property belongs to Gram

Panchayat. The Wife of Defendant No.1 was examined as DW-1 and exhibited

Ex.A-1 - Notice issued by the Secretary, Gram Panchayat, Penukonda to the

Plaintiff dated 05.05.2011 and Ex.A-2 – Information furnished to the Wife of

Defendant/DW-1 by the Secretary, Gram Panchayat, Penukonda in

R.C.No.57/2011 dated 17.08.2011. A perusal of Ex.A-2 discloses that the

Defendant No.1 filed a Petition under RTA seeking the information about the vacant site and the House No.6-204 and accordingly details were given stating that the Plaintiff obtained permission to construct house in Plinth area by 15 X 25 Feet and the boundaries are East – Open Site, West – B.Kristappa

House, North – B.Kollapuri House and South – G.Hanumanthppa House. On perusal of Ex.B-1 discloses that the Notice is issued to the Plaintiff stating the

Gram Panchayat received a complaint that the Plaintiffs are making illegal construction and if any illegal construction are made, they would be removed. Further, DW-1 in her Cross-Examination has admitted all the allegations made by the Plaintiffs in their Plaint. In Written Statement the

Defendants denied the allegations made by the Plaintiff in Plaint, but during

Cross-Examination Dw-1 admitted all the facts stated in the Plaint. During

Cross-Examination, Dw-1 stated that the Compound Wall constructed by the

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Plaintiff is the place belongs to Gram Panchayat and further stated that she did not file any document to show that place belongs to Gram Panchayat.

vii) Gram Panchayat Secretary was examined as DW-2, he was summoned by the Court as per orders in I.A.No.114 of 2014 in the present

Suit and produced Ex.X-1 to Ex.X-3. A perusal of Ex.X-1 discloses that it is a

Certified Copy of Ex.A-5 which was produced by the PW-1. A perusal of

Ex.X-2 discloses that it is Copy of Proceedings of Secretary, Gram Panchayat,

Penukonda pertaining to the guidelines with regard to the construction in the approved plan issued under Ex.A-5/X-1. A perusal of Ex.X-3 discloses that it is the copy of Notice which was already marked through DW-1 as Ex.B-1.

DW-2 though submitted Ex.X-1 to Ex.X-3 and stating that the open place infront of the House of the Plaintiff belongs to Gram Panchayat, but Ex.X-1 clearly shows East – Open Place, if it really belongs to Gram Panchayat it will be mentioned as the Gram Panchayat Road in the approved plan which gives the impression that DW-2 was influenced by the Defendants. DW-1 has also stated in her Cross-Examination that her daughter workings as EORD in

MPDO Office.

10.All the above attending circumstances lead to conclude that the

Plaintiffs established their Possession over the Suit Schedule Property. Under these circumstances, this Court is of the considered view that the Plaintiffs are entitled to the relief of Perpetual Injunction as prayed for. This issue is answered accordingly in favour of the Plaintiffs and against the Defendants.

11. Issue No.2 : To what Relief ?

In view of the observations and findings of this Court on issue

No.1, the Suit of the Plaintiffs is Decreed with costs.

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12.IN THE RESULT, the suit of the Plaintiffs is Decreed with Costs by granting Perpetual Injunction restraining the Defendants 1 & 2 and their men from obstructing the Construction of House and Compound Wall in the Suit

Schedule Property.

Typed to my dictation by Stenographer Grade III, corrected and

pronounced by me in the open Court on this, the 17th day of June 2020.

ADDITIONAL JUNIOR CIVIL JUDGE

PENUKONDA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF

PW-1D.Kollapurappa PW-2Gorla Anjaneyulu

FOR DEFENDANTS

DW-1I.Manoranjani DW-2B.Aswarthappa

DOCUMENTS MARKED FOR PLAINTIFFS

Sl.No. Description of Document Ex.A-1 / PW-1True Copy of Registered Sale deed dated 06.04.1910 Ex.A-2 / PW-1Certified Copy of Registration Extract Will dated 20.02.1039 Ex.A-3 / PW-1Certified Copy of Judgment in O.S.No.31 of 1948 dated 18.02.1949 on the file of District Munsif Court, Penukonda Ex.A-4 / PW-1Death Certificate of Anjineyulu dated 30.09.2008

Ex.A-5 / PW-1Panchayat approval dated 11.03.2011 granted in B.A.No.77/2010-11.

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O.S.No.119 of 2011 Date: 17.06.2020

Addl.JCJ, Penukonda

DOCUMENTS MARKED FOR DEFENDANTS

Sl.No. Description of Document Ex.B-1 / DW-1Notice issued by the Secretary, Gram Panchayath, Penukonda Information furnished to the Wife of the Defendant No.1 Ex.B-2 / DW-1by the Secretary, Gram Panchayath, Penukonda in

R.C.No.57/2011, dated 17.08.2011

Attested Copy of approved Panchayath Plan dated Ex.X-1 / DW-210.03.2013 pertaining to the Door No.6/154 (6/165) Attested Copy of Proceedings of the Secretary Gram Ex.X-2 / DW-2Panchayath, Penukonda dated 11.03.2011

Ex.X-3 / DW-2Attested copy of Notice dated 05.05.2011

ADDITIONAL JUNIOR CIVIL JUDGE

PENUKONDA

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