Smt N.Rajya Lakshmi

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT BOBBILI

Present: Smt.N.Rajyalakshmi,

Senior Civil Judge

Monday, the 16th day of April, 2018

O.S.No.88/2012

Between:

Korra Ranjith S/o late. Lakshmana, aged 36 years, R/o Check post, P.Konavalasa, Pachipenta Mandal. Vizianagaram District. ... Plaintif

And:

1. Chalasani Leela Prasad, S/o Krishnarao, aged 53 years, Jeypore Road, Salur. Vizianagaram District.

2. The District Collector, Vizianagaram representing State of A.P.

3. The Revenue Divisional Officer, Parvathipuram. Vizianagaram District.

4. The Tahasildar, Mandal Revenue Office, Pachipenta Vizianagaram District.

...Defendants

This suit coming on 06.04.2018 for final hearing before me in the presence of Sri P.M.M.Kumar, Advocate for plaintif and Sri T.Panigrahi, Advocate for defendant No.1, Asst.Govt. Pleader, Advocate for defendants 2 to 4 and the matter having stood over for consideration to this day, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintif against defendants 1 to 4 for declaration that the impugned cancellation order of the possession certificate passed by the 3rd defendant in M.C.2/2011 are void; consequential relief of permanent injunction and for costs of the suit .

2.The brief facts of the plaint are:

The Plaintif is the assignee of house property I.e, plaint schedule vacant site. The Plaintif is a poor person. He constructed two thatched houses in the entire plaint schedule property by leaving vacant site and living therein along with his family since 21 years. The Government of A.P., recognised the possession of the Plaintif and granted possession certificate on 25.05.2006. The Plaintif is in 2 lawful possession and enjoyment of the plaint schedule property for the last 21 years. There is an electrical service connection to the plaint schedule property, he was also given ration card, photo I.D card, Adhar card etc. The Plaintif was also granted amounts under Indiramma Housing Scheme subsidy loan under

A.P.S.H.C.C for construction of item No.1 of the plaint schedule property. A.P.

Housing Corporation retained the original possession certificate with them while granting amount. The Plaintif has been constructing a RCC slabbed house in the place of erstwhile thatched house I.e, Item No.2 of the plaint schedule property.

D.1 has no kind of right, title or interest over the plaint schedule property. D.1 is a landlord, he purchased dry land in his name and in the name of his family members about two years ago on the western and southern side of the plaint schedule property, now cultivating the land. D.1 is intending to open a new venture in his business and to construct the building for the purpose of his business. He entertained an evil idea to occupy the plaint schedule property for which the Plaintif resisted the illegal acts of D.1. He influenced and instigated the

Revenue and police authorities as a result D.3 issued a notice under sec.145(1) of

Cr.P.C. in M.C.20/11 on false allegations to attend on 17.12.2011 at 11 AM., for enquiry on the basis of the report of S.I of Police, Pachipenta. The Plaintif attended before D.3. The matter posted to 24.12.2011 for filing written statement or counter. On 24.12.2011 the Plaintif attended and sought time to engage an advocate and to file their written statement or counter but D.3 in hurried manner passed an order directing S.I of Police, Pachipenta to evict the Plaintif and hand over the possession to the 1st defendant. The order passed by D.3 is null and void and against the principles of natural justice. He is not empowered to pass such an order under sec.145(6) (a) of Cr.P.C.. As aggrieved by the said order, the Plaintif preferred an appeal before the 2nd defendant and it is pending. During the pendency of the appeal before the 2nd defendant, the 4th defendant cancelled the possession certificate granted to the Plaintif on 30.06.1997 just by issuing a notice under sec.7 of Act 3/1905 Madras Act and a letter ,dt. 12.05.2012 without conducting any enquiry. The Plaintif is going to prefer an appeal against the said 3 order. Under the guise of the above impugned orders passed by D.3 and D.4. D.1 is threatening and proclaiming in the village since two days that he would get the

Plaintif and his family members evicted and dispossessed him at any cost and trespass into the plaint schedule property. D.1 has been making hectic preparations in the said direction, he may at any point of time trespass into the plaint schedule property and may dispossess the Plaintif by using force. Hence the suit.

3.The defendant No.1 filed his written statement cum counter claim and

D.4 filed his written statement, D.2 and D.3 adopted the same. The Plaintif filed rejoinder . The brief facts of the written statement cum counter claim of D.1 are:

D.1 is father of one Chalasani and he is kartha of the joint family. D.1 purchased A schedule property in the name of his son Chalasani Dharmateja under Registered Sale deed ,dt. 08.02.2011. D.1 has been in possession and enjoyment of the A schedule property from the date of purchase. The property situated at Gairampeta of Pachipenta Mandal covered by S.No.21/4. The Plaintif has no manner of right or interest over the plaint schedule property. The Plaintif used to live in a small hut abutting to the bus shelter of Gavirammapeta village in

R&B site and he used to run tea stall. When he raised walls in the B schedule property in the absence of the then owner and vendor of defendant. The vendor raised objection therefore, the Plaintif stopped his construction long back.

Thereafter, the defendant purchased A schedule property and B schedule is part of the A schedule property which is the subject matter of present suit. Subsequent to purchase of the property by the defendant, he asked the Plaintif to remove the walls in the B schedule property but the Plaintif refused to do so and claimed that he issued a possession certificate in respect of the B schedule property.

Possession certificate does not bear the survey number, it is not relate to any manner to B schedule property. The possession certificate relates to P.Konavalasa village. He reported the matter to the Police, Police referred the matter to RDO,

Parvathipuram as the dispute relating to the immoveable property. The RDO., after thorough enquiry held that the property in dispute is covered by S.No.21/4. On 4 enquiry it is revealed that walls were also constructed in part of S.No.19 relating to the Government. Tahasildar, Pachipenta issued a notice under sec.7 of Land

Encroachment Act anticipating action from the Government in respect of thatched hut constructed by the Plaintif abutting to the bus shelter. The Plaintif shifted the same when the proceedings under sec.145 of Cr.P.C were launched to the B schedule property. Plaintif has no manner of right or enjoyment over plaint A schedule property and his claim under possession certificate is baseless, it does not bear the date, survey number, lenial dimensions. There is no person by name

Krishnamraju having land in the vicinity of A schedule property. A schedule property is at Gavirammapeta whereas the possession certificate shows area of

P.Konavalasa check post. Under the guise of said possession certificate the

Plaintif falsely claims B schedule property belong to him. After passing of orders of the RDO., in Sec.145 Cr.P.C., proceedings for removal of encroachment under

Land Encroachment Act, the Plaintif filed this suit and obtained status quo. Hence the counter claim for declaration that D.1 is absolute owner of the schedule mentioned property and Plaintif has no manner of right, title or interest and for eviction of the Plaintif from the B schedule property and also delivery of vacant possession to D.1.

4.The brief facts of the written statement of D.4 and adopted by D2. And 3 are: The Plaintif is not residing in the plaint schedule property for 20 years.

S.No.19 measuring Ac.1-24 cents of Gaviarammapeta village classified as road poromboke. It is national highway leading to other states. The Plaintif was issued possession certificate on 25.05.2006 by the then Mandal Revenue Officer for 132.5 sq.feet and no S.Nos were mentioned in it. The land noted in the possession certificate is relating to P.Konavalasa. The plaint schedule property is in Gavirammapeta. The Plaintif occupied half cent adjacent to N.H.5 road in

S.No.19 of Gavirammapeta. Possession certificate do not confer any title over the land, it confers only possession. The grant of fund under Indiramma Housing scheme by Housing Corporation said to have been advanced for construction of house on the basis of possession certificate denoting the name of the village as 5

P.Konavalasa in stead of Gavirammapeta without mentioning the S.No issued by

MRO., is irregular. The Plaintif occupied the land both in S.NO.19 NH road and adjoining to S.No.214 belong to the 1st defendant. On a complaint by SHO,

Pachipenta on law and order problem, the RDO, in M.C.20/2011 conferred possession of the patta land in S.No.21/4 for D.1 and SHO., was directed to evict the encroacher in co ordination with the 6th defendant. The suit for injunction and declaration of orders as null and void is not maintainable. The possession certificate issued by the Government was cancelled. The defendant never threatened the Plaintif. The government is the real owner of the land for the plaint schedule property.

5.The Plaintif filed his re joinder stating that the defendant never purchased the plaint schedule property granted to the Plaintif. A and B schedule property as shown in the schedule of the defendant in counter claim is not the subject matter of the suit. The defendant has to file a separate suit in respect of said property. D.1 has no right or title over the plaint schedule property. He tried to occupy the plaint schedule property. The Plaintif moved Hon’ble High Court of

A.P., against D.1 to D.4 by way of writ Petition and obtained orders and to dispossess the Plaintif from the plaint schedule property. Counter claim is not maintainable.

6.Basing on the pleadings of both the parties in plaint, written statement, counter claim and rejoinder, the following issues have been framed for trial:

[1]Whether the plaint schedule property is assigned to the

Plaintif ?

(2)Whether the possession certificate granted to the plaintif is for the plaint schedule property ?

(3)Whether the D.1 purchased the plaint schedule property ?

(4)Whether the Plaintif is entitled for declaration of cancellation order is null and void?

6 (5)Whether the Plaintif is entitled for permanent injunction over the plaint schedule property?

(6)Whether this Court has no jurisdiction?

(7)Whether D.1 is entitled for declaration of plaint B schedule property?

(8)Whether defendant is entitled for eviction of Plaintif?

(9)To what relief?

7.During the course of trial, Pws.1 to P.W.3 are examined, though chief affidavit of P.W.4 is filed but the same is eschewed as he did not turn up for cross examination and marked Exs.A.1 to A.11 on behalf of the Plaintif. On behalf of defendants, D.Ws.1 to D.W.3 are examined and Exs.B.1 to B. 4 are marked .

8.Heard both sides.

Issue No.1:

9.The Plaintif pleaded that the plaint schedule property is assigned property to him, he constructed two thatched houses in the plaint schedule property. Thereafter he wanted to construct RCC building with the loan granted by the Housing Board Corporation. Though he pleaded that the plaint schedule property is assigned to him, no such document is filed into Court and he himself pleaded and also gave evidence that the possession certificate is given to him. If the property is assigned to him, the Government would give D.patta that is why assignment is diferent from granting possession certificate. The D form patta grants to a person who is under poverty line assigning some landed property which is belonged to the Government. Possession certificate is diferent. To grant possession certificate the person would have already in possession of the property and it should be the Government property since he is in occupation of the said property from long time and the Government also has no necessity to take back the said property then the Government would give possession certificate to the said person on his application for construction of a house or cultivate the land. As per the plea of the Plaintif the Government granted possession certificate to him, as such the Plaintif was in occupation of property and on his application the 7

Government granted possession certificate to him. If DKT patta is granted the title would be transferred to the person to whom the D.form patta is granted but in case of possession certificate the title will not be transferred. Ex.A.7 is copy of possession certificate granted to the Plaintif. The Plaintif stated that the original of possession certificate is retained by the Housing Board Corporation while granting loan to him. This copy is not attested or it is not a certified copy, however it is already marked. Hence the Plaintif relied on this document to prove his possession over the plaint schedule property. Since it is the possession certificate and no other document is filed by the Plaintif to prove that the plaint schedule property is assigned to him by the Government. The plaint schedule property is not assigned to the Plaintif. Issue No.1 is answered accordingly. .

Issue No.2:

10.This issue is with regard to to the possession certificate granted to the Plaintif but whether it is belonged to the plaint schedule property? The plea of the Plaintif is that the plaint schedule property is the property under which the possession certificate is granted to him. Through this document only, the Plaintif has been claiming his possession or right or interest over the plaint schedule property. The contest of the defendant is that the plaint schedule property is part and parcel of the property purchased by D.1. According to the Plaintif the plaint schedule property is not part of the property purchased by the defendant. It is the

Government land that is why the Government granted possession certificate to him. Since this issue is with regard to the identity of the property whether the plaint schedule property is the property for which the possession certificate is granted to the Plaintif, we have to see the particulars of the property.

11.To identify the immoveable property the boundaries and S.Nos are required. As per Ex.A.7, possession no survey number is there. According to the

Plaintif the S.No of the plaint schedule property is 19 of P.Konavalasa. The S.No is not mentioned in the possession certificate. But he mentioned the S.No in the plaint schedule and his evidence. According to the defendant his property is in

S.No.21/4. The Plaintif claims his property in S.No.19 of P.Konavalasa. The 8 boundaries mentioned by the Plaintif in the plaint schedule are for Item no.1 the eastern boundary in the plaint schedule is bus shelter and road leading to

Pachipenta. As per Ex.A.7 possession certificate the eastern boundary is vacant site. When the boundary mentioned in the possession certificate is vacant site it should mention whose vacant site. But according to the eastern boundary in the plaint schedule is bus shelter and road. It is not the plea of the Plaintif that by the date of granting this possession certificate there was no road and subsequently the road is laid. Hence the road is already there, the eastern boundary mentioned in the plaint is not correct as per the possession certificate granted to him. With regard to the Southern boundary as per possession certificate land of

Krishnamraju. But according to the plaint schedule, the land of the 1st defendant.

The Plaintif deposed in his evidence that D.1 purchased the property from

Krishnamraju but the land purchased by D.1 is not from Krishnamraju,

Krishnamraju was never in occupation of the said property. The vendor of D.1 is

Gullapathi Jagadeesh. The Plaintif also did not file any document into Court that whether the said Jagadesh purchased the property from this Krishnamraju. Hence the southern boundary of the plaint schedule and possession certificate is not tallied.

12.With regard to the Western boundary, according to the possession certificate is vacant site and according to the plaint schedule the land of the 1st defendant. Though the Plaintif stated that the D.1 purchased property from

Krishnamraju for the southern boundary, he did not say D.1 purchased the property for the Western boundary or vacant place. According to the possession certificate the eastern boundary is vacant site. Hence he cannot say the defendant purchased the said vacant site. Hence the western boundary is not tallied. With regard to the northern boundary as per the possession certificate

R&B road and according to the plaint schedule NH 43 road leading to Jeypore from Salur this northern boundary road which is mentioned in the possession certificate is shown as road in the plaint schedule also. But according to the possession certificate there is only one road on the northern side but according to 9 the plaint schedule there are two roads on eastern and northern side. The defendants land is shown in the plaint schedule but the said land is not there in the possession certificate. For Item NO.2 of plaint schedule also the eastern boundary is thatched house of the Plaintif hence his own house is shown by the

Plaintif to him on the eastern side. The southern boundary is shown as defendant’s land. Whereas the possession certificate shows the land of

Krishnamraju who is not the vendor of D.1. With regard to the western boundary also land of D.1 is shown in the plaint schedule but the Western boundary as per the possession certificate is vacant site. The northern boundary is common shown as NH 43 road for the first and 2nd items but the northern boundary as per

Ex.A.7 possession certificate is R&B road except one northern boundary, no other boundaries are tallied from the possession certificate of plaint schedule. As such the boundaries are not tallied. The S.No though mentioned as 19 in the plaint schedule the said S.No is not there in the possession certificate hence the Plaintif cannot say that he is in possession of S.No.19. The plaint schedule property is not tallied with the possession certificate and hence the plaint schedule property is not the property given to the Plaintif under Ex.A.7.

13. According to the possession certificate he was granted 132.5 sq.feet of site. According to him the site granted to him is Ac.0-03 cents but as per his evidence he has constructed two thatched houses and now raised one RCC building for which the objection is raised.

14.The Plaintif in his evidence stated that the extent of the area in his possession is Ac.0-13 cents. The Government granted to him under Ex.A.7 is 132.5 sq.feet, he occupied the remaining extent of land. The advocate for the defendants argued that the Plaintif himself admitted that though Ac.0-03 cents of land is granted to him under possession certificate he is in occupation of Ac.0-13 cents I.e, the land of the defendant but the Advocate for the defendant argued that this admission is only stray admission by mistake made by the Plaintif. But the Plaintif admitted that after obtained possession certificate he got constructed two thatched houses and now constructing a slabbed house and he 10 has also been running tea stall in the property in his possession. Two thatched houses, one building and tea stall cannot be there in AC.0-03 cents of site.

15.The Plaintif admitted that S.No.21/4 is the land purchased by D.1 under the sale deed. D.1 gave report to RDO., that the Plaintif occupied the land in S.No.21/4. But denied that excess possession of the Plaintif is in S.No.21/4 but he admitted that the Mandal Surveyor measured the land of D.1 and gave the report to RDO as the Plaintif is in occupation of part of the land of D.1, he was also present at the time of taking measurements. Hence the Plaintif not even by mistake he has categorically admitted that he is in possession of excess property which is not granted to him.

16.The Plaintif examined the other witnesses to say that he is in possession of the property and it is not belonged to D.1. But the Plaintif himself admitted that the land of D.1 is adjacent to the land given to him under Ex.A.7 but there is no boundary of D.1 land in the possession certificate granted to him.

Though he stated that the land of Krishnamraju is there, Krishnamraju is not the vendor of D.1, hence the land shown as boundary land of Krishnamraju is not the defendant’s land that is why P.W.2 stated that the land of Krishnamraju is not the boundary of the Property claimed by the Plaintif. Hence the property is in occupation of the Plaintif is not the boundary of Krishnamraju but the property granted to him under Ex.A.7 is the land adjacent to Krishnamraju that is why the plaint schedule property is not the property granted to the Plaintif. This P.W.2 also stated that the Plaintif constructed a thatched house at first, another thatched house later and again constructed RCC building. One thatched house is similar to the extent of the Court hall. It clearly shows that the Plaintif is in possession of more than the land granted to him.

17.P.W.3 also stated that the Plaintif has been making construction of three portioned RCC building and now residing in a thatched house. RCC building which is under construction is 32 X 16 feet and the measurements of thatched house is 25 X 10 feet, it shows that the Plaintif to fill lacuna prepared this witness to give the measurements but P.W.2 stated that the thatched house is similar to 11 the extent of Court hall nearly 1 ½ cents of land. Since the Plaintif would get only

Ac.0-03 cents of land the remaining 1 ½ cents of land is there but there are two thatched houses in the site of ½ cent of land and now constructing one RCC building is clearly shows that he is in possession of excess land.

18.The Plaintif also filed some documents to prove that he is in possession of the plaint schedule property and it is granted to him. Ex.A.1 is electricity bills. According to the Plaintif these electricity bills are belonged to the plaint schedule property but the plaint schedule property is granted to the Plaintif whereas the electricity bills are in the name of Parvathi who is the wife of the

Plaintif. The electricity department would give the electrical connection in the name of the owner of the property, hence these are not belonged to the plaint schedule property. Ex.A.2 and A.3 are Post office account pass book which is granted in Indiramma Housing Scheme, it do not reveal the identity of the property whether it is given for the plaint schedule property or not and whether they have tallied the property to prove his title and possession. Ex.A.3 is post office savings account which is given by the NREGS. Hence these documents do not show the identity of the property. Moreover the Plaintif admitted that the wife of the Plaintif has a house at P.Konavalasa hence the electricity bills in the name of his wife are belonged to the said house but not to the plaint schedule house.

Ex.A.4 is the orders passed by the Sub Divisional Magistrate, Parvathipuram. The

Plaintif seeking cancellation of these orders we need not go with the orders of this court, according to this order the RDO., openly enquired. The Plaintif also admitted that the measurements are taken in his presence on the said enquiry it is observed by the Sub Divisional Magistrate, Parvathipuram that D.1 is in possession of the land measuring Ac.0-03 cents in S.No.21/4 of Gavirammapeta and not the Plaintif. It show that it is not the property of the Plaintif even after taking the measurements the said order is given. Though the Plaintif stated that a Writ Petition filed and the Hon’ble High Court granted order not to evict the

Plaintif from the property the direction of the Hon’ble High Court is since an order under sec.6 of Act is not yet passed he cannot be evicted and hence direct the 12 respondents not to dispossess the petitioner from the said land till the order under sec.6 of the Act is passed and one week later of notice of such order. Hence the

Hon’ble High Court not observed that the Plaintif is the owner of the plaint

schedule property and he cannot be evicted from the plaint schedule property.

The direction is only that except under due process of law he cannot be evicted thereby it can safely conclude that the plaint schedule property is not the property granted to the Plaintif under Ex.A.7 possession certificate. Issue No.2 is answered accordingly.

Issue Nos.3,7 and 8:

19.The defendant pleaded that D.1 purchased the plaint schedule property. The Plaintif shown the land purchased by D.1 as his boundary land in the plaint schedule but the schedule is not tallied as per the possession certificate hence the boundaries mentioned in the plaint schedule are diferent from the possession certificate. Since the Plaintif denied that the defendant purchased the property including the plaint schedule property we have to tally the property with the sale deed of the defendant. The Plaintif shown the land of D.1 in the plaint schedule on southern and western side thereby the Plaintif admitted that the land of the D.1 is adjacent to the plaint schedule property. Now we would see whether the land purchased by D.1 includes the plaint schedule property or excludes the plaint schedule property. Ex.B.1 is the sale deed filed by the D.1. Under this document the defendant purchased the property which is in dispute and also the adjacent land under this document the defendant purchased Ac.3-00 of land now the dispute is with regard to the land in occupation of the Plaintif.

20.To identify the property, the boundaries of the property purchased by

D.1 are East : Road. According to the plaint schedule, the eastern boundary is bus shelter and road. If the plaint schedule property is belonged to the Plaintif and on the western side the defendant’s property is there, the eastern boundary of the defendant should be the Plaintif I.e, the plaint schedule property. But the eastern boundary shown in the sale deed is the road. The northern boundary is road as per the sale deed under Ex.B.1 and also as per the plaint schedule. Hence the 13 property purchased by D.1 is up to the road on the eastern side hence the site of the Plaintif is not there.

21.The Plaintif cross examined the 1st defendant as D.W.1 with regard to the attestors, scribe and the link document of the defendant but it is not the case of the Plaintif that D.1 has not purchased the property there. He also admitted the right of D.1 adjacent to his land. He has shown D.1 as his boundary property on the western and southern side, hence now he cannot deny the sale deed or the title of D.1. The defendant suggested that the Plaintif is well within his site for which possession certificate is granted to him and never occupied any site but the document itself shows that the eastern boundary is not the road but according to the plaint schedule the eastern boundary is the road, the same road is boundary of the land of D.1 under Ex.B.1.

22.D.W.3 is Tahasildar, he denied that the Plaintif did not encroach the site of D.1. Since the Tahasildar made enquiries, measured the property in the presence of both parties he can clearly say that whether the Plaintif has occupied the land of D.1 or not hence he categorically denied that Plaintif encroached the land of D.1. Hence D.1 purchased Ac.3-00 of land including the plaint schedule property and he is entitled for declaration that plaint B schedule property is belonged to him as purchased by him and the Plaintif has no right in it . Hence the defendant is entitled for eviction of the Plaintif from the plaint schedule property. . Issue Nos.3, 7 and 8 are answered accordingly.

Issue Nos.4 and 6:

23.The Plaintif pleaded and prayed to declare that the cancellation order of possession certificate in R.C.No.70/12, dt.12.05.2012 accompanied with notice under sec.7 of Act 3/1905 by the 4th defendant and order passed by the 3rd defendant in M.C.No.20/11, dt.23.12.2011 are void abinitio. According to this prayer two orders passed by D.3 and D.4 are to be declared as void. Ex.A.4 is the order passed by D.3. Ex.A.6 is the eviction order passed by D.4. First we would see

Ex.A.4 order passed by the Sub Divisional Magistrate , Parvathipuram I.e, cancellation of possession certificate. Ex.A.7 is the possession certificate issued 14 by the Tahasildar. According to the Plaintif the RDO., has no power to cancel the possession certificate and he also mentioned in the plaint that the reasons are not mentioned etc.

24.D.W.3 is the Tahasildar. He deposed that the RDO., has no power to cancel the pattas. As per Ex.A.4 the order is passed by RDO., under sec.145

Cr.P.C. Sec.145 Cr.P.C., deals with procedure where dispute arose between two parties with regard to the land or water which is likely to cause breach of peace.

As per Sec.145(4) Cr.P.C the Magistrate can enquire with regard to the dispute on the report of Police officer or on information give notice to both parties, receive in evidence and decide that which party on the date of order is in possession of the subject of the dispute. Under this provision D.3 passed an order, he also gave notice to the Plaintif. The Plaintif also admitted the same. According to the

Plaintif after receipt of notice he appeared before the RDO., he requested time for filing written statement. The RDO., gave time to him and on the next adjournment he again requested time. RDO., did not give time to him on 24.12.2011. The

Plaintif argued that he has no power to cancel such order. According to Sec.145

Cr.P.C., he has power and according to him the order is passed . But as admitted by the Plaintif himself D3 gave notice to the Plaintif and Plaintif appeared before

RDO., but he did not utilize the opportunity by filing his written statement or any documents to prove his possession. But the RDO.,, I.e, D.3 perused the record, he also referred about the possession certificate of the Plaintif and he also mentioned that the possession certificate in favour of the Plaintif is not having survey number. It is not a village site to issue possession certificate thereby he decided that D.1 is in possession of the property and D.1 has to retain his possession. Hence though the Plaintif mentioned that it is against principles of natural justice the notice is given to the Plaintif and Plaintif appeared before him, he also requested time and the RDO., also granted time to him but the

Plaintif did not utilise the said opportunity and again requested time for which the

RDO., did not grant time and decided the issue by verifying the document of the

Plaintif also. Against this order, the Plaintif also preferred appeal before the 15

Collector and it is pending. Again the Plaintif approached this Court to cancel the said order since it is an order passed by an authority which is empowered to pass it and the appellate authority is there, the appeal is also preferred by the Plaintif and the appeal is pending in such circumstances this Court cannot interfere in the said proceedings or in the said process and declare that it is not valid or void or valid.

25.Ex.A.6 is eviction order passed by the Tahasildar. He also passed an order under sec.7 of Madras Act. This is also the proceedings issued after giving notice to the Plaintif and passed the proceedings as per the procedure and the

Tahasildar found that the Plaintif purchased some of the property and some of the property is belonged to R&B Department. The RDO., passed order to evict the

Plaintif from the said property. He cancelled the possession certificate. Against this order the Plaintif filed a writ before the Hon’ble High Court under Ex.A.8 and the Hon’ble High Court passed an order finding that a show cause notice is given under sec.7 of the Act to the petitioner and it is pending. NO order under sec.6 is passed till date and hence the Hon’ble High Court passed an order directing the respondents not to dispossess the petitioner from the subject land till an order under sec.6 of the Act is passed and for a period of one week after the said order is communicated to the petitioner. The Hon’ble High Court it self found that the show cause notice given under sec.7 of the Act is genuine and the order not passed under sec.6 that is why the Hon’ble High Court directed only not to dispossess the Plaintif until order under sec.6 is passed and communicated to the Plaintif and it is not the direction that the Plaintif has right over the property and he cannot be dispossessed, thereby both orders under sec.4 and 6 are passed under due process. The Plaintif also preferred appeal and writ and he also got an oder and one appeal is pending before the Collector, now the Plaintif want to get another order from this Court to get multiple orders. Since one process also going on this court cannot interfere into such procedure and both parties of the proceedings have to follow the same thereby this court has no jurisdiction to entertain or interfere in the process of the proceedings which are already gong on.

16

At this stage, this Court cannot pass any order that the cancellation order i.e.

Ex.A.4 or eviction order under Ex.A.6 are void and cannot be cancelled. Issue

Nos.4 and 6 are answered accordingly.

Issue No.5:

26.Since this issue is with regard to the permanent injunction to the

Plaintif over the plaint schedule property, the Plaintif has to prove his possession over the plaint schedule property. He has to prove primafacie case, balance of convenience, irreparable loss. The documents filed by the Plaintif are Ex.A.1 is the electricity bills which are in the name of wife of Plaintif but not in the name of the Plaintif. Since the Plaintif filed possession certificate in his name the electricity connection also would be in the name of the Plaintif but the Plaintif did not file such bills into Court. Ex.A.1 electricity bills are not with regard to the plaint schedule property, they are belonged to the property which is in the name of the wife of the Plaintif at P.Konavalasa. Ex.A.2 and A.3 are pass books which will not prove the possession of the Plaintif over the plaint schedule property. They show only that he has obtained loan from Housing Board Corporation and Indiramma scheme granted to him but it is not proved that they are granted for the plaint schedule property. Ex.A.7 possession certificate do not show the plaint schedule property. As discussed in previous issues that the boundaries mentioned in the plaint schedule property are not tallied with the boundaries mentioned in the possession certificate filed by the Plaintif hence this property is diferent from the plaint schedule property.

27.With regard to the oral evidence though the Plaintif mentioned that

Ac.0-03 cents of site is granted to him but he is in occupation of Ac.0-13 cents which is not his legal possession. He is in possession of excess land which is more than the possession granted to him. The ration card and Adhar card shows only that he is resident near check post but will not show that he has been residing in the plaint schedule property, thereby the primafacie case of the Plaintif is that though he is in possession of the property it is not lawful possession. The possession certificate granted to him is diferent and the plaint schedule property 17 is diferent property hence the Plaintif has no primafacie case over the plaint schedule property thereby he also has no balance of convenience or irreparable loss. Hence the Plaintif is not entitled for permanent injunction. Issue No.5 is answered accordingly.

Issue Nos.9:

27. In the result the suit of the Plaintif is dismissed and the counter claim of the defendant No.1 is decreed with costs and that the defendant No.1 is entitled for declaration that he is the absolute owner of the plaint B schedule property and defendant No.1 is entitled to evict the Plaintif from the B schedule property and recover possession of the same from the Plaintif. Three months time granted to the Plaintif to vacate the plaint schedule property from the date of this

Judgment.

Dictated to Stengrapher-Grade.II transcribed by him, corrected and

pronounced by me in Open Court, this the 16th day of April, 2018.

Sd/- N.Rajyalakshmi,

Senior Civil Judge,

Bobbili.

Appendix of Evidence Witnesses Examined

For Plaintif:For Defendants:

P.W.1: Korra RanjithD.W.1: Ch.Leela prasad P.W.2: Kandela YesuD.W.2: A.Satyanarayana P.W.3: P.VenkataraoD.W.3: M.V.Kurma Sudhakar. P.W.4: P.Chinnayya

Documents Marked For Plaintif:

Ex.A.1: Two demand notice and two electrical bills.

Ex.A.2: Post office savings account pass book

Ex.A.3: Post office savings account pass book

Ex.A.4: Order in M.C.20/11 issued by RDO.

Ex.A.5: Office copy of grounds of appeal and Petition.

Ex.A.6: Notice under sec.7 of Land Encroachment Act.

Ex.A.7: Attested copy of possession certificate

Ex.A.8: Served copy of the order in writ Petition

Ex.A.9: Office copy of legal notice.

18

Ex.A.10: Two acknowledgments.

Ex.A.11: Adhar card.

For Defendants:

Ex.B.1: Meeseva copy of sale deed

Ex.B.2: Pattadar pass book

Ex.B.3: Certified copy of 1B account

Ex.B.4: Certified copy of adangal.

Sd/- N.Rajyalakshmi,

Senior Civil Judge,

Bobbili.

19

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT BOBBILI

Present: Smt.N.Rajyalakshmi,

Senior Civil Judge

Tuesday, the 10th day of April, 2018

O.S.No.51/2012

Between:

Sala Sri Rama Krishna Suryarao, S/o late Gopalarao, aged 74 years, R/o Velamastreet, Bobbili. Vizianagaram District.

... Plaintif And:

1. Sala Suneel Sardar, S/o late. S.V.Ramakrishna, aged 22 years, R/o Near Gandhi Statue and Tandrapaparaya school, Bobbili. Vizianagaram District. 2.Botsa Apparao, S/o late.Mallayya, aged 38 years, R/o Ravuvari street, Bobbili. Vizianagaram District.

3. Pentapalli Krishna, S/o Pydayya, aged 40 years, R/o Jagannadhapuram, Komatipalli post, Bobbili Mandal. Vizianagaram District.

4. Boddana Satyanarayana, S/o Suryanarayana, aged 38 years, R/o Medarabanda, opposite Sivalayam, Bobbili. Vizianagaram District. 5.Pentapalli Pydayya, S/o Seetharam, aged 75 years, R/o Jagannadhapuram, Komatipalli , Bobbili Mandal. Vizianagaram District.

...Defendants

This suit coming on 22.03.2018 for final hearing before me in the presence of Sri P.M.M.Kumar, Advocate for plaintif and Sri A.Chandrasekhara Rao, Advocate for D.1 and D.2, D.3 to D.5 remained ex parte and the matter having stood over for consideration to this day, this Court delivered the following:

JUDGMENT

This suit is filed by the plaintif against defendants for cancellation of sale deed, permanent injunction, mandatory injunction and for costs.

2.The brief facts of the plaint are:

One Sala Surayya had six sons viz., Jaggarao, Seetaramaswamy,

Suryarao, Apparao, Venkatarao. They all constitute Hindu joint Mitakshara family it had ancestral immoveable property at Jagannadhapuram including thrashing floors. All the six brothers partitioned their joint family immoveable properties into six equal shares by metes and bounds about 70 years ago but they kept the thrashing floor in 3 plots in an extent of Ac.0-29 cents, Ac.0-50 cents, Ac.0-49 cents in joint. In the said joint thrashing floor there existed madras terraced room 2 with one storeyed tiled room with appurtenant tiled cattle shed for the common usage of thrashing floor and keeping hay heap, cattle, agriculture tools and bullock carts etc. The said 6 brothers and later their respective legal heirs separately enjoying their respective shares since long time till 1998 the above six sharers as well as their legal heirs were in joint possession and enjoyment of the thrashing floors. There was an understanding between the six brothers in case any co sharer would sell his entire landed property at Jagannadhapuram, his share in the thrashing floors should be transferred in favour of any other co sharer who has landed property. Sala Jagadeswararao S/o Suryarao sold away his half share in the third branch of Suryarao, thrashing floor in an extent of 6 ¾ cents in which the madras terraced room etc., were there in S.No.54/2 to the Plaintif under an oral sale. Jagadeswararao sold away his eastern portion of landed property at

Jagannadhapuram. The Plaintif has been in joint possession of his original share as well as the plaint schedule property as he purchased it. In the year 1998 the legal heirs of 5th Branch Apparao as well as legal heirs of Seetaramaswamy separated from legal heirs of 1,3,4 and 6 branches I.e, from the branches of

Jaggarao, Suryarao, Gopalarao and Venkatarao. In the meanwhile the legal heirs of 2nd branch I.e, Seetaramaswamy were allotted thrashing floor to an extent of

Ac.0-29 cents and the legal heirs of 5th branch I.e, Apparao were allotted a thrashing floor to an extent of Ac.0-50 cents. The legal heirs of 2nd branch I.e,

Seetaramaswamy sold away their share to the legal heirs and 5th Branch Apparao the remaining legal heirs of 1,3,4 and 6 branches I.e, Jaggarao, Suryarao,

Gopalarao and Venkatarao have been in joint possession and enjoyment of the thrashing floor etc., to an extent of AC.0-49 cents in which Madras terraced room etc., were there. The Plaintif used to maintain the thrashing floor along with

Madras terraced room etc., . Recently the Plaintif being legal heir through 4th branch sold away his 1/4th share to Jagadeswararao on 18.01.2012. The legal heirs of 1st branch I.e, legal heirs of Jagadedswararao sold away their 1/4th share in the thrashing floor to Jaggarao under a Registered Sale deed ,dt.30.01.2012.

Suryarao sold away his half share in the 1/4th share towards their branch in 3 thrashing floor to Jaggarao under sale deed ,dt.30.01.2012. Jagadeswararao who is brother of Suryarao and another legal heir in the third branch Suryarao already sold away his half share in the third branch to the Plaintif which is the plaint schedule property in the year 1980 thus the Plaintif is the absolute owner of the plaint schedule property. The Plaintif has been in possession and enjoyment of the same. Except the Plaintif no others have any right in the plaint schedule property. The Plaintif retained the plaint schedule property without selling to anybody as it is useful for the Plaintif as thrashing floor to keep hay heap and cattle, agriculture tools and bullock carts etc. The Plaintif is intending to make repairs to the Madras terraced room. D.1 is son of Ramakrishna I.e, son of

Jagadeswararao. Ramakrishna addicted to alcohol, he sufered from chronic T.B and later expired. D.1 was habituated to bad vices. Ramakrishna executed a Will bequeathing his rights over some of his properties situated at Rompalli,

Seetaramapuram and Bobbilin in favour of the Plaintif with absolute rights directing them to utilize the usufruct from out of the properties for the purpose of providing education to the poor and needy children. Ramakrishna father of D.1 expressed his intention that D.1 should not perform his obsequies hence the

Plaintif performed the obsequies of Ramakrishna. Hence D.1 bore grudge and entertained an evil intention to wreck vengeance against the Plaintif. D.1 conspired with D.2 to D.4 and they collusively created sham and nominal documents and untenable sale deed on 01.02.2012 in respect of the plaint schedule property in between D.1 and D.2. 1st defendant has no any manner of right or title or interest or possession over the plaint schedule property to sell to 2nd defendant. The Plaintif also raised objection before the Sub Registrar Office,

Bobbili but invain. D.1 to D.5 are rough and rude persons. D.1 to D.5 forcibly trespassed into the plaint schedule property and demolished the plaint schedule property in the absence of the Plaintif. Plaintif rushed to the spot, resisted the illegal acts of the defendants and took possession. By the time the Plaintif reached spot, the defendants totally demolished the Madras terraced room etc.

Since one week the defendants are threatening and proclaiming in the village that 4 they would trespass into the plaint schedule property and they will kill away the

Plaintif. In such a case the Plaintif would sustain loss. The sale deed executed by

D.1 in favour of D.2 to be cancelled declaring the sale deed as void abinitio, permanent injunction and for mandatory injunction. Hence the suit.

3.D.2 filed his written statement and D.1 adopted the same. The brief facts of the written statement are:

D.2 purchased the plaint schedule property from D.1 under Registered

Sale deed ,dt.01.02.2012. D.2 is put in possession of the plaint schedule property from the date of execution of sale deed. The schedule property is vacant place which is situated nearby the village of Jagannadhapuram, it is fit for construction of house. The Plaintif has no right over the plaint schedule property. The plaint schedule property is the ancestral property of the 1st defendant and it is devolved on him from his father, he is in possession and enjoyment of the plaint schedule property with absolute rights till it sold away to D.2. The sale transaction between the 1st defendant and D2. under Registered Sale deed is valid but Plaintif cannot question the sale transaction in between D.1 and D.2. The Plaintif not filed any document to show that he purchased the property from Jagadeswararao in the year 1980 under oral sale. He also did not file any document to prove his possession. The father of 1st defendant viz., Ramakrishna never executed any Will in favour of the Plaintif, the alleged Will is created. The defendants never trespassed into the plaint schedule property and never demolished any structure.

By the time of purchase, by D.2, the schedule property is vacant place and the suit is liable to be dismissed.

4.Basing on the pleadings of both the parties, the following issues have been framed for trial:

[1]Whether the plaint schedule property is in possession of the

Plaintif by the date of filing of suit ?

(2)Whether the defendants demolished the construction?

(3)Whether Will is genuine ?

(4)Whether the Plaintif is entitle for cancellation of sale deed ?

(5)Whether the Plaintif is entitle for permanent injunction?

5 (6)Whether the Plaintif is entitle for mandatory injunction?

(7)To what relief?

5.During the course of trial, Pws.1 to P.W.3 are examined and marked

Exs.A.1 to A.4 on behalf of the Plaintif. On behalf of defendants, D.Ws.1 and 2 are examined and Ex.B.1 is marked .

6.Heard both sides. Written arguments submitted on behalf of the defendants.

Issue Nos.1 and 5:

7. This issue is with regard to the possession of the Plaintif over the plaint schedule property. The Plaintif examined himself as P.W.1 and also examined P.Ws.2 and 3 to prove his plea. The documents filed by the Plaintif are

Ex.A.1 is the sale deed I.e, claiming cancellation. Ex.A.2 is third party sale deed.

Ex.A.3 is Will. As per Ex.A.2 sale deed the Plaintif tried to prove his possession over the plaint schedule property. According to this document in the schedule of

Item No.1, the northern boundary of this document is belonged to the Plaintif, it is recited as Plaintif’s land in an extent of 6 ¾ cents of land thereby the Plaintif has Ac.0-06 cents and odd of land is there on the northern side of the property covered under Ex.A.2 I.e, the plaint schedule property. This document is executed on 30.01.2012. With regard to the oral evidence, though the Plaintif stated about the geneology, succession etc., with regard to the plaint schedule property the claim of the Plaintif based on an oral sale. The Plaintif purchased the plaint schedule property from a co sharer under oral sale I.e, Jaggarao in the year 1980.

Thus the Plaintif has to prove his possession over the schedule property. He deposed that from the year 1980 he has been in possession and enjoyment of the plaint schedule property along with other sharers but he stated that the plaint schedule property is in his name in the Revenue records, but he did not file any revenue record into Court, himself and his sons obtained pattadar pass book and title deed for his land at Jagannadhapuram but the plaint schedule property is not in his name in the Revenue record. The Plaintif sold his original share of land in the suit S.No. As per the evidence of the Plaintif, the Plaintif gave two versions 6 that the Revenue record is in his name and again stated that the Revenue record is not in his name with regard to the plaint schedule property. If we believe that the revenue record is in the name of the Plaintif, no such record is filed into Court as admitted by the Plaintif since stated that the record is there and not filed into

Court shows that no such record is there or it is not in his favour hence he did not file the said record into Court, an adverse inference can be drawn in these circumstances. If we believe that the Revenue record is not in his name, the

Plaintif has to prove his possession over the property by otherwise since there is no revenue record in his name. The Plaintif also stated that himself and his sons obtained pattadar pass book and title deed for their properties. If really the

Plaintif obtained pattadar pass book and title deed his all properties would be entered in the pattadar pass book and title deed.

8.The pattadar pass book and title deed are introduced under ROR Act in 1980’s. The Plaintif also pleaded that he has purchased the plaint schedule property from Jagadeswararao in the year 1980 I.e, prior to introduction of ROR

Act. In such circumstances, he also would have obtained pattadar pass book and title deed for the plaint schedule property also along with other properties since it was purchased even prior to obtaining pattadar pass book and title deed. But no such pattadar pass book and title deed also filed into Court. If plaint schedule property is entered in pattadar pass book and title deed it should be in the revenue record. It shows that the Revenue record is not stand in the name of the

Plaintif with regard to the plaint schedule property hence the pattadar pass book and title deed has no entry about the plaint schedule property. Hence the Plaintif did not file the said pattadar pass book and title deed into Court to prove his possession. As pleaded by the Plaintif, the purchase is oral purchase hence there is no record to prove that the Plaintif purchased the property, even revenue record is also not there to prove his possession of plaint schedule property.

9.To prove his possession the Plaintif also examined P.W.2 who is another co sharer I.e, son of Venkatarao. He pleaded that the Plaintif purchased the plaint schedule property from Jagadeswararao. This witness stated with 7 regard to the partition. The Plaintif pleaded in the plaint that Surayya is the original owner, he has six sons and six sons partitioned their properties but kept the plaint schedule property and other thrashing floor in joint for common use hence all the six sons have joint right in the said thrashing floors. The right of

Jaggarao sold to the Plaintif. When once the Plaintif pleaded that the plaint schedule thrashing floors are kept joint and the Jaggarao has right in the property and he sold it and the Plaintif gave boundaries to the said Ac.0-06 cents and odd of land to the Plaintif. If the property is kept joint how the Plaintif can give boundaries and how Jaggarao sell his property specifically. When once the

Plaintif pleaded it is joint, the undivided share can be sold but specific share cannot be sold. When once the Plaintif has been pleading that the property kept joint the thrashing floors should kept joint for other properties are partitioned but pleaded that Jaggarao sold specified property with boundaries to the Plaintif in an extent of Ac.0-06 cents and odd of land. However, as admitted by the Plaintif, the plaint schedule property is originally belonged to Jaggarao. D.1 is grandson of

Jaggarao. If the property is not sold it should be succeeded by D.1 from his father who is the son of Jagadeswararao. But because of the purchase by the Plaintif the D.1 certainly succeed the property from his father or grandfather. Hence P.W.2 is examined to say that the property kept joint, later Jagadeswararao sold the property to the Plaintif. This witness purchased some property from the Plaintif.

According to this witness his brother Suryarao I.e, Plaintif and his cousin brothers were present at the time of payment of consideration by the Plaintif to

Jagadeswararao. But he could not say the date of purchase. He did not say what was the consideration passed by the Plaintif to Jagadeswararao towards sale consideration.

10.P.W.3 is examined to say about the possession of the Plaintif. This witness do not know anything. P.W.3 stated that Surayya is alive and he know him.

But admittedly, Surayya died long back and he has six sons. But P.W.3 stated that

Surayya had 3 sons. He also stated that the plaint schedule property is Ac.0-50 cents of land but the claim of the Plaintif is only Ac.0-06 cents and odd of land, 8 his father informed to him that Plaintif purchased the plaint schedule property. It shows that this witness do not know anything I.e, he do not know Surayya, he do not know how many sons are there to him. The extent of the plaint schedule property and his information that the Plaintif purchased the plaint schedule property from Jagadeswararao is also an information given by his father I.e, hearsay evidence which is not admissible. The evidence of this witness cannot be considered. As per the oral evidence of the Plaintif also, the Plaintif could not prove his possession over the plaint schedule property by filing any revenue record which is available with the Revenue Department or pattadar pass book and title deed available with him. As stated above since the documents are there and not filed into Court, adverse inference can be drawn as the document is against to his plea. Except Ex.A.2 sale deed by a third party there is no proof about the possession of the Plaintif over the plaint schedule property the Plaintif relied on

Ex.A.2 since the name of the Plaintif is referred as the northern boundary owner of the said property. To believe the said recital if the name of the Plaintif is recited as northern boundary owner we can believe the same but extent of Ac.0- 06 ¾ cents of land is mentioned in the boundary. In normal course nobody mention the extent of the property of the neighbouring owner or the boundary owner except the name of the owner as a boundary. Moreover, the Plaintif alleged to purchase the plaint schedule property in the year 1980 whereas this sale deed is executed in the year 2012 in which year this suit is filed. It may be a recital got made by the Plaintif in the said sale deed that is why there is no other record for the Plaintif to prove his possession over the property. Since in the year 1980 itself he purchased he would have certainly got pattadar pass book and title deed but the said pattadar pass book and title deed also not filed and there is no such recital also hence the possession of the Plaintif is not proved by the Plaintif and thereby he is not entitled for permanent injunction. Issue Nos.1 and 5 are answered accordingly.

9

Issue Nos.2 and 6:

11.The plea of the Plaintif that defendants demolished the construction in the plaint schedule property. The Plaintif pleaded in the plaint that the defendants vehemently trespassed into the plaint schedule property in his absence and after coming to know the same he came to the property and resisted the same and recovered the property from the defendants but by that time the defendants demolished the construction. Nowhere the Plaintif in his evidence mentioned that how the defendants demolished the construction. According to the

Plaintif the constructions are in dilapidated condition and hence he want to get repair the properties. But the defendants demolished it.

12.P.W.2 though stated that the Plaintif purchased the plaint schedule property orally and he was present at the time of passing of consideration, he did not say about the demolition of the construction in the plaint schedule property by the defendants or he did not mention whether he was present at the time of such demolition.

13.P.W.3 though examined before the Court, he do not know the intention and hence he also did not say about the demolition of construction of the defendants in the plaint schedule property. The defendants mentioned in the written statement that by the time of his purchase itself it is a vacant site. There is no proof that there was a construction in the plaint schedule property and it was demolished by the defendants. since the Plaintif failed to prove the demolition they are not entitle for mandatory injunction. Issue Nos.2 and 6 are answered accordingly .

Issue No.3:

14.The Plaintif pleaded that the father of d.1 Ramakrishna addicted to alcohol because of discrepancies with his wife, later D1. Is also addicted to vices and hence Ramakrishna executed a Will bequeathing his entire properties to the

Plaintif thereby D.1 bore grudge against the Plaintif and demolished the structure in the plaint schedule property. According to this plea the Will is not a main issue in this aspect, not with regard to the plaint schedule property. The 10 plaint schedule property as pleaded by the Plaintif is purchased by him from the grandfather of D.1, whereas father of D.1 executed the Will bequeathing the other properties to the Plaintif. Hence directly Will is not acted or relevant to the suit property. But it is with regard to the motive of the Plaintif to file this suit. If the

Will is genuine the property in the said Will would devolve upon the Plaintif and not if genuine it would be devolved upon D.1 but they are not included in the plaint schedule property. The Plaintif also did not examine any witness to prove the Will hence the genuineness of the said Will cannot be decided and not even necessary to this suit. Issue No.3 is answered accordingly.

Issue No.4:

15.According to the Plaintif D.1 created sale deed in favour of D.2 for the plaint schedule property in which D.1 has no right in the property. D.2 pleaded in his written statement that D.1 is the absolute owner of the plaint schedule property since he is only son to his father. Jagadeswararao is the grandfather of

D.1, the Plaintif also admitted the same. Ramakrishna is the son of

Jagadeswararao and D.1 is son of Ramakrishna hence as stated above since the

Plaintif also admitted that he purchased the plaint schedule property from

Jagadeswararao he admitted title of Jagadeswararao over the plaint schedule property. If the sale deed is not executed by Jagadeswararao, it would devolve upon Ramakrishna and from Ramakrishna to D.1, if no Will is executed. Hence the

Plaintif has to prove purchase of plaint schedule property from Jagadeswararao otherwise D.1 become owner of the plaint schedule property automatically. But the plea of the Plaintif is that he purchased the property by oral sale and no documentary evidence is there to prove the same. Except P.W.2, no witness is there to say that Plaintif purchased the plaint schedule property under an oral sale. The evidence of P.W.2 also cannot be considered since his presence is not proved at the time of such sale. Moreover P.W.2 is vendee of the Plaintif and also that since the Plaintif himself pleaded that the thrashing floors are kept joint how

Jagadeswararao can sell his specified share in an extent of Ac.0-06 and odd cents of land specifically when there is no partition of the joint properties. Since the 11

Plaintif himself pleaded that no partition took place at the most he can sell his undivided share but the Plaintif mentioned specific boundaries to the said property hence the evidence of P.W.2 also cannot be relied in the light of the plea of the Plaintif himself.

16.The advocate for the Plaintif argued that oral sale cannot be considered and no immoveable property can be transferred without a registered document, for which he relied on a decision reported in 2011(5) ALT 598 in between Harijana Chinna Thippanna and another V.Harijana Eramma and others wherein it was held that:

“The appellants pleaded that Smt.Sunkulamma was indebted to ther vendor Veera Reddy and as an adjustment thereof, she had efected an oral sale of the property. The plea has to be taken note of, only to reject it. The concept oral sale is totally known to law. At any rate, the only person who could have substantiated the nature of such a transaction was Veera Reddy, the vendor of the appellants. He was not examined. His daughter, who deposed as D.W.3, clearly stated that she has absolutely no knowledge about the entire issue, so much so, she did not even visit the village. Therefore, the appellants miserably failed to prove the accrual of title to them.”

As per this citation, the Hon’ble High Court of A.P., settled the law that the concept of oral sale is totally unknown to law. The said oral concept can be substantiated only by the vendor of the property I.e, who sold the property under an oral sale has to establish the same then only it can be proved. In this case on hand according to the Plaintif Jagadeswararao sold the property under oral sale,

Jagadeswararao is no more and hence he is not examined before the Court thereby the Plaintif could not prove his purchase of plaint schedule property from

Jagadeswararao. The Hon’ble High Court also stated that the plea ha to be taken note of only but rejected it. Hence the plea of oral sale cannot be admitted. The

Plaintif also could not prove his possession over the plaint schedule property even by filing a revenue record or pattadar pass book and title deed into Court.

The sale deed executed by D.1 in favour of D.2 cannot be cancelled by the

Plaintif. Issue No.4 is answered accordingly.

Issue No.7

17.In the result, this suit is dismissed with costs.

12

Dictated to Stengrapher-Grade.II transcribed by him, corrected and

pronounced by me in Open Court, this the 10th day of April, 2018.

Sd/- N.Rajya Lakshmi,

Senior Civil Judge,

Bobbili.

Appendix of Evidence Witnesses Examined

For Plaintif:For Defendants:

P.W.1: S.Srirama Krishna SuryaraoD.W.1: B.Apparao P.W.2: S.Venkata JaggaraoD.W.2: K.Soori P.W.3: T.Eswararao

Documents Marked For Plaintif:

Ex.A.1: Registered sale deed executed in favour of 2nd defendant by D.1

Ex.A.2: Certified copy of sale deed ,dt.30.01.2012

Ex.A.3: Will, dt.15.05.2007

Ex.A.4: C.D with 6 photographs.

For Defendants:

Ex.B.1: Registered Sale deed ,dt.01.02.2012 executed by D.1 in favour of D.W.1.

Sd/- N.Rajya Lakshmi,

Senior Civil Judge,

Bobbili.

13

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT BOBBILI

Present: Smt.N.Rajyalakshmi,

Senior Civil Judge

Wednesday, the 11th day of April, 2018

O.S.No.55/2012

Between:

1. Ravva Sriramamurthy, S/o late. Gunnayya, aged 66 years, R/o Chilakalapalli village, Balijipeta Mandal. Vizianagaram District.

2. Ravva Satyanarayana, S/o late. Gunnayya, aged 62 years, rest-do-.

3. Ravva Appala Raju, S/o late. Gunnayya, aged 60 years,

rest-do-. ... Plaintiffs

And:

1. Ravva Eswara Rao, S/o late. Gunnayya, aged 50 years, R/o Chilakalapalli village, Balijipeta Mandal. Vizianagaram District.

2. Ravva Laxmi, W/o Eswara Rao, aged about 36 years,

rest-do-. ...Defendants

This suit coming on 06.04.2018 for final hearing before me in the presence of Sri K.Prasada Rao , Advocate for plaintiffs and Sri M.Benarjee, Advocate for defendants and the matter having stood over for consideration to this day, this

Court delivered the following:

J UD G M E N T

This suit is filed by the plaintiffs 1 to 3 against defendants 1 and 2 for partition of the plaint schedule property, mesne profits and for costs of the suit .

2.The brief facts of the plaint are:

The Plaintiffs and D.1 are brothers and sons of one Ravva Gunnayya.

During the lifetime of Gunnayya with the assistance of Plaintiffs and D.1 acquired the plaint schedule properties and some other properties. The plaint schedule properties are joint family properties. Gunnayya acted as kartha of the joint family. The Plaintiffs, D.1 and Gunnayya used to do business. Due to the family differences, the 1st Plaintiff separated thereafter the Plaintiffs 2 and 3 also separated and doing business independently. At the time of separation by the

Plaintiffs 1 to 3 Gunnayya gave Ac.2-25 cents of land to each of them for their 2 enjoyment. The properties acquired by the father of the Plaintiffs and D.1 were in the hold of Gunnayya with an understanding that family properties shall be partitioned after demise of the father. To that effect he executed a document, dt.05.07.1991 in which the Plaintiffs and D.1 also signed. D.2 is the wife of D.1 who is no other than sister’s daughter of the Plaintiffs and D.1 as well as gran daughter of Gunnayya. Due to the said reason Gunnayya and his wife used to reside with D.1 and D.2 during their lifetime. The entire documents relating to the joint family properties kept with Gunnayya. Gunnayya died on 05.06.2010 and his wife also died in March, 2011. After demise of Gunnayya, the Plaintiffs requested

D.1 for partition of the properties. D.1 postponing the same on one pretext or other. The Plaintiffs raised a dispute before the elders. D.1 attended to the said mediation admitting liability of partition but sought time. The document is in the custody of D.1 since Gunnayya used to live with him during his lifetime. The

Plaintiffs and D.1 are in possession of the plaint schedule property. Defendants 1 and 2 jointly sent a caveat stating that Gunnayya executed a registered Will in favour of D.2. Gunnayya was not in a sound state of mind to execute the Will. He lost his mental balance and eye site from the year 2000 as he is aged more than 90 years. The defendants might have coerced and obtained signature on the Will.

The said caveat petition B schedule properties wet lands are purchased in the name of the Plaintiffs and D.1. C schedule mentioned house property stands in the name of Plaintiff’s mother. The alleged Will is not acted upon. After demise of

Gunnayya, both the defendants secreted all the documents relating to the joint family properties. The Plaintiffs issued legal notice to the defendants on 25.10.2011 demanding the 1st defendant for partition of the properties into four equal shares and to allot one such share. Both the defendants received the same and gave reply with false allegations. Hence the suit.

3.The defendants filed written statement . The brief facts of the written statement are Gunnayya was a hard worker, initially he started a small kirana shop, even before the birth of children. He did seasonal business and acquired properties. After birth of his children he used to acquire properties in his name 3 and also in the name of his family members. After performing the marriages of daughters and Plaintiffs some disturbances occurred hence Gunnayya allotted two shares from his properties to his elder son I.e Plaintiffs 1 and 2 prior to 1985 thus the Plaintiffs 1 and 2 separated from their father and remaining sons I.e, 3rd

Plaintiff and D.1 jointly living with their father. After 1989 Gunnayya made remaining his self acquired properties into three parts and retained one such share for himself. Due to his old age and old age of his wife they were looked after by the defendants. Therefore, Gunnayya and his wife were residing with the defendants, thus Gunnayya allotted his self acquired properties to his sons by making a partition and retaining one such share for himself except A schedule property of caveat Petition. In the said partition, 3 houses purchased by

Gunnayya fell to the shares of Plaintiffs 1 to 3. The house in which D.1 is residing is fell to his share. After partition, he removed the old house in the year 1993 and constructed a new building i.e., Item No.3 of plaint C schedule, two houses situated in Dorala street and Nalli street in Chilakalapalli were fell to the share of

Gunnayya besides the landed property shown in B schedule. The Revenue department recognised the separate enjoyment and issued pattadar pass book and title deeds separately to each individual. B and C schedule properties are not joint family properties. The Plaintiffs have no right to seek any partition. The

Plaintiffs and defendants are not joint family members. The jointness was severed during the lifetime of Gunnayya out of love and affection towards his granddaughter I.e, D.2 executed a Will ,dt.08.12.2004 in sound and disposing state of mind and bequeathing his entire share of properties including 1/5th share in A schedule property. Gunnayya died on 05.06.2010. Narayanamma died on 13.03.2011. Since then the 2nd defendant is in possession and enjoyment of the properties devolved upon her under the Will. Gunnayya lost his vision partially but hale and healthy. When A schedule property is only property kept joint which is a mango tope in an extent of Ac.8-13 cents in which 1/5th share of late

Gunnayya devolved on D.2. The said mango tope is only liable for partition into 5 shares. Srinivasa Modern Rice Mill situated in land in an extent of Ac.1-48 cents is 4 the property of partnership firm in which the sister of the Plaintiffs and 1st defendant also one of the partners. Therefore, it is not liable for partition. The alleged letter ,dt.05.07.1991 is not true, valid and binding, it is fabricated and forged. Gunnayya never executed any such letter. The defendants never made any attempt to alienate the property devolved on D.2 after death of Gunnayya.

Injunction cannot be granted, suit is not maintainable in respect of the plaint B and C schedule properties. The suit is liable to be dismissed.

4.Basing on the pleadings of both the parties, the following issues have been framed for trial:

[1]Whether the Plaintiffs are having right to sought for partition over the plaint schedule property or not ?

(2)Whether the Plaintiffs are entitled for partition of the plaint schedule properties into four equal shares and allot one such share each to them or not ?

(3)Whether the Plaintiffs are entitled for mesne profits or not?

(4)To what relief?

5.During the course of trial, Pws.1 to 3 are examined and marked

Exs.A1 to A.5 on behalf of the Plaintiffs. On behalf of defendants, D.Ws.1 to 3 are examined and Exs.B.1 to B.15 are marked .

6.Heard both sides.

Issue No.1 and 2:

7. The admitted facts are: The plaint schedule properties are purchased by Gunnayya who is the father of the Plaintiffs 1 to 3 and D.1. According to the

Plaintiffs they also participated in the business and hence the properties are purchased in the name of Gunnayya and also the family members. But according to D.1 all the properties are self acquired properties of Gunnayya. As admitted by the Plaintiffs the Plaintiffs 1 to 3 separated from their father long back and when they were separated from their father Gunnayya gave Ac.2-25 cents and a house to each Plaintiff. D.1 and Gunnayya living together in one house. He also gave some property to D.1 and retained some property to his share. As per the 5 defendants, the property retained to Gunnayya is bequeathed to D.2 who is the wife of D.1. According to the defendants the Will is not genuine and it is created.

Gunnayya executed a letter stating that the property retained to Gunnayya is to be partitioned equally among 4 sons hence the property of Gunnayya shall be partitioned among Plaintiffs 1 to 3 and D.1. The main dispute is whether the Will is genuine or not? Whether any partition took place?

8.Admittedly, there is no ancestral property to Gunnayya. Even as per the pleadings of the Plaintiff Gunnayya migrated from Srikakulam to Chilakalapalli village even before the birth of the Plaintiffs and D.1. All the properties acquired are with the earnings but not with ancestral property. Hence the plaint schedule properties are not ancestral properties. According to the defendants they are joint family properties as they are acquired with the efforts of Gunnayya and his sons.

Gunnayya did paddy business. He has license for it. According to the Plaintiffs they also participated in the business. Hence the properties purchased by

Gunnayya are joint family properties. The Plaintiff admitted that there is no documentary proof that the Plaintiffs jointly did paddy business along with their father. He also admitted that Gunnayya purchased the properties in the name of his sons. The Plaintiff also deposed that his father gave Ac.2-50 cents of land to

Plaintiffs 1 and 2 when they separated and also gave a house on main road,

Chilakalapalli. In the year 1991 his father gave Ac.2-25 cents of land to P.W.1 also when he separated from the family. D.1 and his father are entitled for Ac.2-25 cents of land each, still there is Ac.5-00 of land to their family which shows that

Gunnayya gave the land and house equally to all the Plaintiffs. Ac.5-00 of land is remained since D.1 and Gunnayya were there, he might have retained the said

Ac.5-00 of land to their two shares. Item No.3 of C schedule is originally thatched house. In the year 1993 the said tiled house was removed and constructed a terraced house. The Plaintiff also stated that he filed the suit for Ac.2-50 cents of land which is the share of his father. He also admitted that his father has right to settle his share to anybody. He denied the execution of Will. He also deposed that he obtained pattadar pass book and title deed for the land given to him likewise 6 other brothers are also obtained pattadar pass book and title deed for their respective lands given to their father. Gunnayya also obtained pattadar pass book and title deed for the land.

9.P.W.2 is a third party, he examined to say that both the parties did business and acquired the properties and that father of both parties executed a document on 05.07.1991 stating that after his demise the properties shall be partitioned equally among the Plaintiffs and D.1 and Gunnayya has not executed any Will. The evidence of this witness can be admitted to the extent of execution of letter which is a positive evidence but the evidence that Gunnayya has not executed the Will is a negative evidence which cannot be accepted. If he is the witness or attestor of the Will, he can say about the things what are happened to execute the said document. Since he is not an attestor and his presence was not there at the time of execution of the Will the evidence that Gunnayya has not executed the Will is not acceptable. He deposed that the father of both parties was doing paddy business but he did not attest even the document, dt.05.07.1991 as stated by him document executed by Gunnayya, he was not present at the time of such transaction. He also do not know in whose favour he executed the Will. Hence the evidence of this witness is that on 05.07.1991

Gunnayya executed a document is also not acceptable. Since he was not present, he is not attestor of the said document.

10.P.W.3 also stated the same that father of both parties executed the document on 05.07.1991 as the property shall be partitioned among all his sons equally. This witness is no other than the son in law of Gunnayya and he gave his daughter to the son of 1st Plaintiff, hence he is interested in the Plaintiffs. He deposed in cross examination that in the year 1991 he was working in K.Kotapadu of Visakhapatnam District, he is not attestor of the document. Since this witness is also not an attestor or he did not say that he was present at the time of the document and he was present at Visakhapatnam, the evidence of this witness is with regard to the execution of the said document is also not correct.

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11.As admitted by both the parties, Gunnayya gave Ac.2-25 cents or

Ac.2-30 cents of land and house to each of his son that is why he equally gave the landed property and house property to all his sons. There is no dispute with regard to that aspect. The dispute is only with regard to the property retained by

Gunnayya. Gunnayya retained Ac.5-00 of land out of the said Ac.5-00 also gave

Ac.2-50 cents of land to D.1 subsequently hence he also gave the equal shares to

D.1. Hence we need not go into whether the property is ancestral property or self acquired property of Gunnayya or the joint property claimed by all the parties.

Since he has already given equal shares to all the persons it is not in dispute.

Since he retained Ac.5-00 of land for himself and also gave Ac.2-50 cents of land to D.1, the remaining Ac.2-50 cents of land is retained with him now the Plaintiffs argument is that Gunnayya agreed to partition the said land among 4 sons whereas the defendant has been contesting that Gunnayya executed a Will in favour of D.2 I.e, wife of D.1 for the said land hence it need not be partitioned.

12.The counsel for the defendants argued that a previous partition can be proved even though no document is available or oral partition. In this case on hand, the father of the Plaintiffs and D.1 already partitioned the properties and all the sharers obtained pattadar pass book and title deed for their respective shares, it is not necessary to file a registered partition deed in all the cases for which he relied on a decision reported in 2017(2) ALD 387 in between K.V.Janardhanam

Chetty and another V. K.V.Jaya Kumar and another wherein it was held that:

“The law is well settled that an old partition can be inferred basing on the surrounding circumstances like mutation of property, shares of individuals in the revenue records and municipal records, transactions of sale subsequent in the partition would form the basis to infer that the partition was real and acted upon.”

13.With regard to the document the Plaintiff examined P.Ws.2 and 3 stating that Gunnayya executed Ex.A.1 agreeing to partition the property among 4 sons. The defendants denied the same. The Plaintiffs also cross examined the defendant with regard to the said original document. According to the version of the Plaintiff, the original document is with the defendants since Gunnayya and his wife I.e, parents of Plaintiffs and D.1 were living with D.1 the original is in the house of Gunnayya where D.1 has been residing. Hence the original is with D.1 8 and Ex.A.1 is xerox copy filed into Court stating that it is the document executed by Gunnayya admitting that the properties should be partitioned among 4 sons.

Since it is xerox copy it is not admissible in evidence. Original is not filed into

Court. This document is also not proved by examining any of the attestors of this document. Hence this document cannot be considered.

14.The documents filed by the Plaintiffs are Ex.A.2 is office copy of legal notice given by the Plaintiffs. Ex.A.3 is the legal notice issued by D.1 and D.2.

Ex.A.4 is postal acknowledgment. Ex.A.5 is copy of COP. These documents cannot prove that the property is divisible or not. D.1 is examined as D.W.1, he deposed that his father did business along with his sons, himself, his brothers and father separated in the year 1985. The plaint A schedule property is kept in joint. The rice mill is in the name of his brothers and sisters, it is a firm it cannot be partitioned. The plaint B schedule property was purchased in the name of 4 brothers under two sale deeds purchased 3 houses in C schedule. Hence according to the defendants except the plaint A schedule property no properties are there for partition. With regard to the Will since the defendants pleaded that

Gunnayya executed a Will in respect of genuineness of the said Will as the

Plaintiffs denied the same.

15.The advocate for the Plaintiffs argued that Will should be proved and the proof of Will is not sufficient to prove normally and at least one of the attsesting witness should be examined to prove the Will. The learned counsel for defendants argued that proof of Will is separately explained in Sec.62 of Indian

Evidence Act and examining attestor of the Will is sufficient to prove the Will for which he relied on a decision reported in 2012(4) ALD 71 (SC) in between Mahesh

Kumar (dead ) by Lrs V. Vinod Kumar and others wherein it was held that:

“Section 63(c) of the 1925 Act does not contain any such requirement and it is settled law that examination of one of the attesting witnesses is sufficient.”

As per this citation The will should be proved by examining at least one of the attestor of the Wil. Accordingly the defendant examined D.W.2 who is the attstor of the Will. D.1 deposed that the attestors of the Will are Pediredla Tirupathi who is resident of Piridi and Alubilli Venkatarao who is resident of Palagara. He 9 examined the said Tirupathi as D.W.2. According to the evidence of D.W.2.

Gunnayya executed a Registered Will on 08.12.2004 in a sound and disposing state of mind bequeathing his share of property in favour of D.2. Gunnayya furnished information for preparation of Will and gave instructions. Gunnayya affixed his thumb impression on the Will in his presence and in the presence of another attestor and scribe. Later he attested the Will , thereby he proved the

Will. During cross examination he identified his signature in the Will. To discredit the evidence of this witness, the Plaintiff cross examined and he stated that he is working under the scribe of Ex.B.1 Will I.e, Satyanarayana. Gunnayya called him at his house for the attestation of the Will on the date of Ex.B.1. Alubilli

Venkatarao who is the another attestor who is in white chap and short in height aged about 25 years, none of the children of the Gunnayya attended for the transaction. Gunnayya brought pattadar pass book and title deed document for preparation of the Will, he was aged about 85 years. He was signatory but since his eye sight was not proper he affixed his thumb impression, he was hale and healthy on the date of execution of Ex.B.1.

16.The Plaintiffs pleaded that Gunnayya was not hale and healthy, his mental balance was not good. D.W.3 who is the 2nd defendant in whose favour the

Will is executed she is grand daughter cum daughter in law to Gunnayya. The defendant cross examined that there is no mention in Ex.B.1 Will that the properties covered under the Will are fell to his share in the partition. It is not the plea of Gunnayya that he partitioned the property. The Plaintiffs pleaded that they also made efforts in the business and acquired the property jointly but according to Gunnayya all the properties are acquired by himself. However, he gave land and house equally to all his sons and retained some property i.e, property covered under Ex.B.1 Will. Ex.B.1 Will contains that he has settled the properties to his sons and the property covered under the Will is in his possession that is why it is not the intention of Gunnayya that he partitioned the properties and retained the property to his share. According to Gunnayya he acquired the properties and he voluntarily gave to his sons and retained some property hence the word 10 partition is not there in the mind of Gunnayya,

17.The Plaintiffs cross examined that by the date of execution of Will

Gunnayya was living in the house of D.1 and D.2 but the evidence of D.W.2 is that none of the children of Gunnayya were present at the time of execution of the Will that is why though he has been living in the house of D.1 and D.2 he did not bring them to prepare the Will or for registration of the Will. The Plaintiff also suggested that Gunnayya has no absolute right over the property to execute the Will.

Though he argued that the said plea is not there in the plaint. Since he is also giving the properties to his sons either by way of partition or not the properties are acquired by Gunnayya and there is no evidence that the properties are acquired with the efforts of the sons of Gunnayya that is why the property is self acquired property of Gunnayya and he has absolute right in it and he can execute the Will in favour of anybody. Since the defendants marked Ex.B.1 Will into Court and also examined one of the attestor I.e D.W.2 and he also clinchingly established that the Will is executed by Gunnayya he proved the Will. No suspicious circumstances are also there around the Will even though the Plaintiffs raised that since Gunnayya was living in the house of the defendants by the date of execution of Will they obtained his signature without his consent but it is registered Will. Since it is the registered Will he went to Registrar office and the

Sub Registrar enquired about the genuineness of the document. If really withoiut consent of Gunnayya the defendants obtained the signature it would have revealed before the Registrar hence there is no suspicious circumstance in execution of the Will thereby Ex.B.1 Will is proved. The Plaintiffs are not entitled for partition of plaint B and C schedule properties. As stated by D.1 plaint A schedule property is joint property and B schedule property is firm since A schedule property is joint, it is only liable for partition and other properties are not liable for partition. Issue No.1 and 2 are answered accordingly.

Issue No.3:

18.Though the Plaintiffs claimed the mesne profits in the prayer portion in 11 the pleadings, there is no recital that the defendants have not been giving the usufruct from the plaint A schedule property to the Plaintiffs. Moreover in the plaint, the Plaintiffs mentioned that they are in joint possession till filing of the suit, in such case the Plaintiffs are already receiving the benefits from the property, hence mesne profits do not arise. Issue No.3 is answered accordingly.

Issue Nos. 4:

19. In the result the suit is partly preliminary decreed for the plaint A schedule property, Plaintiffs 1 to 3 and D.1 are entitled for 1/4th share each. The suit in respect of plaint B and c schedule properties is hereby dismissed. No costs.

Dictated to Stengrapher-Grade.II transcribed by him, corrected and

pronounced by me in Open Court, this the 11th day of April, 2018.

Sd/- N.Rajya Lakshmi

Senior Civil Judge,

Bobbili.

Appendix of Evidence Witnesses Examined

For Plaintiffs:For Defendants:

P.W.1:R.AppalarajuD.W.1: R.Eswararao P.W.2:T.SankararaoD.W.2: P.Tirupathi P.W.3: A.Venkata Govinda Rajulu D.W.3: R.Laxmi.

Documents Marked For Plaintiffs:

Ex.A.1: Xerox copy of document ,dt. 05.07.1991

Ex.A.2: Office copy of legal notice ,dt. 25.10.2011

Ex.A.3: Reply notice ,dt. 28.11.2011

Ex.A.4: Postal acknowledgment.

Ex.A.5: Copy of caveat.

For Defendants:

Ex.B.1: Registered Will

Ex.B.2: Pattadar pass book

Ex.B.3: Title Deed

Ex.B.4: Pattadar pass book of D.2.

Ex.B.5: Certified copy of adangal in favour of D.2.

Ex.B.6: Certified copy of 1B account in favour of D.2.

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Ex.B.7: Certified copy of No.3 adangal of D.2 for the year 2014-15

Ex.B.8: Office copy of reply notice issued by defendant

Ex.B.9: Certified copy of registered sale deed

Ex.B.10: Certified copy of Registered Sale deed

Ex.B.11: Certified copy of Registered Sale deed.

Ex.B.12: Food grains license.

Ex.B.13: Registered Sale deed

Ex.B.14: Dishonoured cheque.

Ex.B.15: Receipt issued by market committee.

Sd/- N.Rajyalakshmi

Senior Civil Judge,

Bobbili.

13

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT BOBBILI

Present: Smt.N.Rajyalakshmi,

Senior Civil Judge

Friday, the 6th day of April, 2018

O.S.No.39/2014

Between:

Guravana Hemalatha, W/o Venkata Naidu, aged 38 years, R/o Therlam village and Mandal. Vizianagaram District.

... Plaintif And:

1.Thanubuddhi Venkata Jagadeswararao Naidu, S/o Apparaonaidu, aged 52 years, V.R.O., resident of Bathuva village, G.Sigadam Mandal. Srikakulam District (Died)

2. Thanubuddhi Chinnamnaidu, W/o late. Venkata Jagadeswararao Naidu, aged 50 years, R/o Bathuva, G.Sigadam Mandal. Srikakulam District.

3. Thanubuddhi Sekhar, S/o late. Venkata Jagadeswararao Naidu, aged 28 years, rest-do-

4. Thanubuddhi Suresh, S/o late. Venkata Jagadeswararao Naidu, aged 24 years, rest-do-

5. Thanubuddhi Dhanalakshmi, D/o late. Venkata Jagadeswararao Naidu, aged 22 years, rest-do-. (D.2 to D.5 are added as L.Rs of the deceased D.1 as per orders in I.A.No.920/2015, dt.14.03.2017)

...Defendants

This suit coming on 16.03.2018 for final hearing before me in the presence of Sri P.M.M.Kumar, Advocate for plaintif and Sri T.Panigrahi, Advocate for D.3 to

D.5, D.1 died, D.2 remained ex parte and the matter having stood over for consideration to this day, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintif against defendants for recovery of money from out of the estate of deceased D.1 in the hands of D.2 to D.5,basing on promissory note .

2.The brief facts of the plaint are:

The 1st defendant approached the Plaintif, requested for money and accordingly, the Plaintif lent an amount of Rs.2 lakhs to D.1 on 20.11.2010 for the purpose of his family necessities and to clear the debts. D.1 executed the Suit promissory note in the presence of attestors and scribe agreeing to pay interest at 12% p.a.. He did not repay amount in spite of repeated demands of the Plaintif 2 personally and through elders. The Plaintif filed the suit for recovery of money against D.1. During the pendency of the suit D.1 died on 24.10.2015 leaving behind him defendants 2 to 5 as class I legal heirs. D.2 is the wife, D.3 to D.5 are children of D.1. Hence the suit.

3. The defendant No.1 filed his written statement denying the execution of the promissory note an stated that the Suit promissory note is forged one, there is no previty of contract between the Plaintif and defendant, he never borrowed any amount from the Plaintif. The rival persons got filed this suit through the

Plaintif with the help of attestor and scribe who are under the thumb of the rival group of the defendant. The suit promissory note is materially altered and the suit is liable to be dismissed.

4.D.4 filed written statement, D.2, D.3 and D.5 adopted the same. The brief facts of the written statement of D.4 are that D.1 never borrowed any amount from the Plaintif. The Suit promissory note must be fabricated or forged one. It is materially altered. D.1 addicted to vices, he has no necessity to borrow the amounts for the welfare of the family. The debt must be avyavaharika debt and the suit is liable to be dismissed.

5.Basing on the pleadings of both the parties, the following issues have been framed for trial:

[1]Whether the Suit promissory note is executed by the defendant ?

(2)Whether the Plaintif is entitled to suit amount ?

(3)To what relief ?

6.During the course of trial, Pws.1 and 2 are examined and marked

Ex.A1 on behalf of the Plaintif. On behalf of defendant, no oral or documentary evidence is adduced.

7.Heard learned counsel for Plaintif.

3

Issue No.1:

8. Originally, this suit is filed against D.1 who is alleged to be original borrower, he remained ex parte at the first instance. Thereafter, he filed I.A to set aside the ex parte decree and filed his written statement. Basing on his written statement and the plaint, issues are framed, thereafter, the borrower-D.1 died, subsequently D.2 to D.5 are added as L.Rs of D.1. D.4 filed another written statement and D.2, D.3 and D.5 adopted the same. The Legal heirs stepped into shoes of the deceased, accordingly D.2 to D.5 being L.Rs of D.1 step into shoes of

D.1 thereby D.2 to D.5 as L.Rs have to proceed with the contest already taken by

D.1 and they cannot take a diferent stand and diferent contest. Originally D.1 filed his written statement stating that the Suit promissory note is forged one and materially altered. The defendants 2 to 5 though taken the same plea of forgery they have also took another plea that it is avyavaharika debt. As stated above the L.Rs have to step into the shoes of the deceased and they cannot take a diferent contest hence the contest which is not taken by D.1 cannot be considered.

9.This issue is whether D.1 executed the Suit promissory note? Since the defendants contested the Suit promissory note is forged one, to prove the transaction and to prove the promissory note, the Plaintif examined himself as

P.W.1 and also examined P.W.2, who is the attestor of the promissory note. Since

D.1 died by the date of examination of Plaintif and D.2 to D.5 came into picture, they have cross examined P.Ws.1 and 2 as per their contest, it is diferent contest taken by D.1 stating that D.1 is alcoholic , he not used to attend to the office regularly. He sold some properties for his vices, he never looked after the family and the transaction under Ex.A.1 is avyavaharika debt. D.1 died because of lever problem. As stated above since this is not the plea taken by D.1, it cannot be considered. Moreover the defendants mere taken plea that D.1 is an alcoholic habituated to consuming alcohol but no document is filed into Court. They also suggested to P.Ws.1 and 2 that D.1 died because of lever problem and he did not attend to the office regularly but no document is filed that deceased D.1 died due 4 to lever problem or he has not attended to the office. Hence the plea taken by the defendants is only to escape from the liability. The defendants also cross examined with regard to the acquaintance with D.1, Plaintif stated that D.1 used to reside opposite to his house and he is distant relative to the Plaintif. Since there is relationship in between Plaintif and D.1, defendants 2 to 5 also have relation with the Plaintif hence knowing fully well that there is relation in between them and they have acquaintance with each other but cross examined with regard to the acquaintance. The defendants also suggested that D.1 suspended since he was in drunken state in the office for which also no document is filed.

They also suggested that D.1 sold some properties for his vice, no such sale deeds also filed into Court. Hence the defendants failed to prove that it is avyavaharika debt.

10.With regard to the execution of promissory note the Plaintif deposed that M.A.S.N.Raju is the scribe who is resident of Therlam , both attestors are also residents of Therlam. The Plaintif and defendants are also residents of Therlam.

The Plaintif also deposed that defendant himself brought the attestors and scribe.

11.P.W.2 stated that D.1 has no habit of consuming alcohol and denied that D.1 sufered from lever problem and bedridden for 4 years. The attitude of the defendants can be seen from the suggestions. The defendants cross examined

P.W.1 stating that D.1 did not attend to office one year prior to his death and suggested to P.W.2 that D.1 bedridden for 4 years. If really D.1 bed ridden if it is one year they can say that it is one year and if it is is 4 years they can suggest as 4 years but to P.W.1 it is one year and to P.W.2 it is 4 years. Whereas D.1 appeared

before the Court and filed I.A to set aside the ex parte decree and filed his written

statement also. P.W.2 deposed with regard to the transaction , the suit transaction took place at the house of the Plaintif . One Venkataramana is another attestor.Raju is the scribe. The transaction took place at about 10 AM., Ex.A.1 is executed on a printed form. One revenue stamp is affixed.

12.Though both D.1 and D.2 to D.5 contested that the Suit promissory 5 note is forged one, none of the witnesses on behalf of the defendants are examined before the Court, they did not take any steps to disprove the promissory note or to disprove the signature in Ex.A.1. They not even turn up for cross examination to Court even to substantiate their plea. Hence the evidence of

Plaintif prevailed. The Plaintif by examining himself and also attestor proved the promissory note, they both stated about the transaction that the suit transaction took place at 10 AM., at the house of the Plaintif, both attestor and scribe are brought by D.1, the denomination was in Rs.1000/- notes X 200. With regard to the acquaintance both parties and attestor and scribe also belonged to one village, there is also relation in between Plaintif and D.1, hence the Suit promissory note is executed by D.1. Issue No.1 is answered accordingly. .

Issue No.2:

13. Since Issue No.1 is answered in favour of the Plaintif that D.1 borrowed amount from the Plaintif and executed the Suit promissory note and did not discharge the debt, the Plaintif is entitled for the suit amount. Issue No.2 is answered accordingly.

Issue No.3:

14.In the result, this suit is decreed with costs against the estate of deceased D.1 in the hands of D.2 to D.5 for a sum of Rs.2,71,399/- (Rupees Two

Lakhs Seventy One Thousand Three Hundred Ninety Nine only) together with subsequent interest at 12% p.a., from the date of suit till the date of decree, thereafter at 6% p.a., till realisation on the principal amount of Rs.2,00,000/- (Rupees Two Lakhs only).

Dictated to Stengrapher-Grade.II transcribed by him, corrected and

pronounced by me in Open Court, this the 6th day of April, 2018.

Sd/- N.Rajyalakshmi,

Senior Civil Judge,

Bobbili.

Appendix of Evidence Witnesses Examined

For Plaintif:For Defendant: P.W.1: G.HemalathaNone. P.W.2: B.Narayanarao 6

Documents Marked For Plaintif:

Ex.A.1: promissory note, dt.20.11.2010

For Defendants: Nil

Sd/- N.Rajyalakshmi,

Senior Civil Judge,

Bobbili.

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IN THE COURT OF THE SENIOR CIVIL JUDGE AT BOBBILI

Present: Smt.N.Rajyalakshmi,

Senior Civil Judge

Monday, the 9th day of April, 2018

O.S.No.160/2015

Between:

Sambana Pydiraju, S/o Appalaswamy, aged about 45 years, Door No.40-15, Singarapuveedhi, Bobbili. Vizianagaram District.

... Plaintif And:

1.Kallepalli Rama Rao, S/o late. Narayana, aged about 51 years, R/o Singarapu street, Bobbili. Vizianagaram District.

2. Kallepalli Parvathi, W/o Ramarao, aged about 41 years, rest-do-

3. Kallepalli Laxmana Rao, S/o Ramarao, aged about 27 years, rest-do-

4. Kallepalli Srinu, S/o Ramarao, aged about 25 years, rest-do-.

...Defendants

This suit coming on 14.03.2018 for final hearing before me in the presence of Sri K.Prasada Rao, Advocate for plaintif and Sri Ch.L.V.Prasanna Kumar,

Advocate for defendants and the matter having stood over for consideration to this day, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintif against defendants for recovery of money basing on Mortgage deed .

2.The brief facts of the plaint are:

The Plaintif and defendants are residents of Bobbili. The defendant has RCC slabbed house I.e, plaint schedule property. The defendants approached the Plaintif and borrowed an amount of Rs.2 lakhs from the Plaintif on 03.01.2012 for their family necessities. He agreed to pay interest at 24% p.a., and executed registered simple Mortgage deed on 03.01.2012 and created mortgage on the plaint schedule property. The defendants agreed to pay interest of

Rs.4,000/- every month and endorsed the same on the Mortgage deed or to 2 obtain receipt from the Plaintif. As per the conditions, the defendants have to redeem the Mortgage deed within 3 years, they also further agreed for personal liability in case of the property is not sufficient to satisfy the debt and also liability on moveable and immoveable properties of the defendants. The defendants did not pay the monthly interest as agreed in the Mortgage deed. The Plaintif demanded the defendants on many occasions but the defendants are postponing on one pretext or other. The Plaintif also got issued the legal notice on 03.06.2015, they received the same, neither give any reply nor pay the amount.

Hence the suit.

3.D.4 filed his written statement and D.1 to D.3 adopted the same. The brief facts of the written statement are: There is no direct or indirect transaction in between the Plaintif and D.4. D.4 did not receive any amount of Rs.2 lakhs. The

Mortgage deed is not supported by consideration. There are many transactions in between the Plaintif and relation of D.4 Nakka Ramarao, in that connection, the

Plaintif and Nakka Ramarao compelled him to sign on Mortgage deed, due to coercive steps taken by the Plaintif, the defendants signed on the Mortgage deed.

The suit is not maintainable and liable to be dismissed.

4.Basing on the pleadings of both the parties, the following issues have been framed for trial:

[1]Whether there is coercion in execution of suit Mortgage deed against D.4 ?

(2)Whether the Plaintif Iis entitled for preliminary decree ?

(3)To what relief?

5.During the course of trial, Pws.1 and 2 are examined and marked

Exs.A1 to A.3 on behalf of the Plaintif. On behalf of defendants no oral or documentary evidence is adduced

6.Heard learned counsel for Plaintif .

Issue No.1:

7. The Plaintif examined himself as P.W.1 and examined P.W.2 who is the 3 attestor to prove the transaction since the defendants denied the consideration and admitted only signatures. The Plaintif and P.W.2 clearly stated that defendants 1 to 4 Mortgaged the property and executed the Mortgage deed

Ex.A.1 in the Sub Registrar office. The defendants suggested to them that no consideration was passed and Plaintif and P.w.2 denied it. They also denied that one Nakka Ramarao obtained the signatures of the defendants on the Mortgage deed and the defendants do not know the contents of the Mortgage deed. The defendants are not illiterates since they are illiterates there is presumption that when the signature is admitted they know the contents and the contents are took place in their presence. Since there is presumption automatically the Court can draw such inference that the defendants executed the Mortgage deed and received the consideration. The defendants denied the transaction and consideration hence the burden is on the defendants to prove the plea or to rebut the presumption. In this case on hand, the defendants pleaded that no consideration was passed and there is coercion to execute the document. This is not a promissory note, it is a registered Mortgage deed, if there is any coercion by the Plaintif or Nakka Ramarao, the defendants can say that the said coercion to the Sub Registrar but they did not inform any such coercion. Though the defendants taken such plea about the coercion and no consideration the defendants did not examine before the Court to prove their plea. It shows that the defendants have taken plea nominally to drag on the proceedings thereby get time but they are not serious to contest the suit. Since the Plaintif examined himself and marked the Mortgage deed, P.W.2 who is the attestor also clinchingly established that the suit Mortgage deed is executed by the defendants and received the consideration and defendants failed to prove the coercion. Issue No.1 is answered accordingly. .

Issue No.2:

8.In Issue No.1 it is proved that the defendants family executed the

Mortgage deed by borrowing money the presumption also arise that the defendants since admitted their signatures in the document and no plea that their 4 signatures on blank papers, they admittedly went to Sub Registrar Office and put signatures in the Mortgage deed hence the presumption is that the defendants know the contents, received the consideration and executed the Mortgage deed.

Since the defendants failed to rebut the said presumption and did not discharge the said debt, the Plaintif is entitled for preliminary decree. Issue No.2 is answered accordingly. .

Issue No.3:

9.In the result, the suit is Preliminary decreed with costs for a sum of

Rs.3,64,000/- (Rupees Three Lakhs Sixty Four Thousand only) together with subsequent interest at 12% p.a., from the date of the suit till the date of decree and thereafter at 6% p.a., till realisation on the principal amount of RS.2,00,000/- (Rupees Two Lakhs only).

Time for redemption is two months.

Dictated to Stengrapher-Grade.II transcribed by him, corrected and

pronounced by me in Open Court, this the 9th day of April, 2018.

Sd/- N.RajyaLakshmi,

Senior Civil Judge,

Bobbili.

Appendix of Evidence Witnesses Examined

For Plaintif:For Defendants:

P.W.1: S.Pydiraju P.W.2: K.Thoudu

Documents Marked For Plaintif:

Ex.A.1: Simple Mortgage deed dt.03.01.2012

Ex.A.2: Office copy of legal notice ,dt. 03.06.2015

Ex.A.3: Postal receipts four in number.

For Defendants: Nil

Sd/- N.Rajyalakshmi

Senior Civil Judge,

Bobbili.

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