1 Fair
IN THE COURT OF THE III ADDITIONAL CIVIL JUDGE (SENIOR DIVISION)
:: KAKINADA
Present : Sri N. Ramesh Naidu
III Additional Civil Judge (Senior Division), Kakinada
Thursday, this the 30 th day of January, 2025
APPEAL SUIT No.185/2019
Between:
1. Nitla Maneswararao S/o Venkatarao, Aged 57 years, Business, R/o D.No.70.2.174/1, Kapula Veedhi, Ramanayyapeta, Kakinada.
2. Nitla Rambabu S/o Venkatarao, Aged 54 years, Business, R/o D.No.70.2.174/1, Kapula Veedhi, Ramanayyapeta, Kakinada.
3. Nitla Vishnu S/o Venkatarao, Aged 52 years, Business, R/o D.No.70.2.174/1, Kapula Veedhi, Ramanayyapeta, Kakinada.
4. Nitla Nanaji S/o Venkatarao, Aged 48 years, Business, R/o D.No.70.2.174/1, Kapula Veedhi, Ramanayyapeta, Kakinada.
...Appellants/Defendants
Vs.,
Kesana Sivanarayana S/o Suryanarayana, Aged 62 years, Business, R/o D.No.69.3.15/5B, 5 Building Center, Kakinada.
…Respondent/Plaintiff
On appeal filed against the decree and Judgment dated 25.06.2019 passed in O.S.No.370/2014, on the file of I Addl. Junior Civil Judge, Kakinada.
Between:- Kesana Sivanarayana …Plaintiff
Vs.,
1. Nitla Maneswararao
2. Nitla Rambabu
3. Nitla Vishnu
4. Nitla Nanaji ...Defendants
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This appeal coming on 05.12.2024 for final hearing before me in the presence of Sri M.Jawahar Ali, Advocate for the Appellants/Defendants and of Sri.Mallampalli Sarveswara Rao, Advocate for the Respondent/Plaintiff and having heard the matter and stood over for consideration till this day, the Court delivered the following:
JUDGMENT:
1.The unsuccessful defendants in the suit in O.S No.370/2014 on the file of learned I Addl. Junior Civil Judge, Kakinada preferred the appeal challenging the decree and judgment dated 25.06.2019, whereby and whereunder the relief of perpetual injunction has been granted infavour of the plaintiff restraining the defendants and their henchman from ever interfering with his peaceful possession and enjoyment in respect of suit schedule property.
2. Whereas, the respondent cum plaintiff has contested the appeal.
3.The appellants and respondent, hereinafter would be referred to according to their original positions of the suit for the sake of convenience and clarity.
4. The plaintiff has instituted the suit claiming perpetual injunction for restraining the defendants and their henchman from ever interfering with his peaceful possession and enjoyment in respect of the plaint schedule property.
5. Whereas the defendants have resisted the suit by way of a written statement.
6. The case of plaintiff in a nutshell is that he purchased from one Kakarla
Varalakshmi and her children the plaint schedule site ad-measuring 50 Sq.
yards out of property of Ac.0.13 cents covered by Sy.No.148/3 of
Ramanayyapeta Village of Kakinada Municipal Area under a registered sale deed dated 26.06.2000 and thereafter he got constructed therein a Mangalore tiled house and started enjoying it with absolute rights, duly paying taxes to 3 the Municipal Corporation of Kakinada. The plaint schedule property is planked by B.T Road or Military Road, leading to Nagavaram, on the north, and a pathway (puntha) of Government covered by R.Sy.No.154 of
Ramanayyapeta on the south. The defendants have been doing tiles business with a catch name of Money Granites. They got constructed a godown to the further south of pathway to stock tiles. Nevertheless, the defendants are stocking tiles in the southern pathway of the plaint schedule property and thereby causing obstructions for him and his neighbours for their ingress and egress through such a pathway. The defendants have nursed grudge against him after being questioned for causing illegal obstructions in the southern pathway of plaint schedule property. Despite the fact that the encroachments of defendants are brought to the notice of Officials of Municipal Corporation,
Kakinada, no action was initiated against the defendants by the authorities of
Municipal Corporation for being succumbed to the influence. While the matters stood thus, the defendants, one week prior to the institution of suit, have attempted to encroach the plaint schedule property with a highhanded manner and thereby tried to dispossess him there from. However, he could able to resist the illegal attempts of defendants with the help of neighbours. The defendants have scant respect for law and order. It is becoming difficult for him to thwart the illegal attempts of defendants to dispossess him from the plaint schedule property, which constrained him to seek perpetual injunction restraining the defendants and their henchman from ever interfering with his peaceful possession and enjoyment in respect of the plaint schedule property 7. Whereas, the contest of defendants, inter alia is that they have purchased property ad-measuring 487 Sq. Yards from one Yalamanchi
Vidyavathi through her GPA Holder by name Chodey Parasuram under a registered sale deed dated 14.12.2007 and ever since they have been in possession and enjoyment of the property they have purchased. There is a vacant site belonging to one Muppidi Surya Kala and two others lying towards the east of site they have purchased, which they took on lease and got 4 constructed some godowns therein, and thereby the godowns are being used for doing their business. Since times immemorial there existing a pathway towards north of their property and also towards north of the godowns. They have been using such a pathway to reach the road lying towards it’s further north. There are no other ways, except that pathway, for them to reach the road lying towards it’s further north, proposed to be winded to 100 feet road, according to the master plan of Municipal Corporation. In fact, one
Temmanapudi Veerabhadrarao had attempted to occupy the northern pathway of their properties with the help of a sham and invalid document and in that process, he caused obstructions for their (defendants) passage through the northern pathway and in which connection, they have instituted Suit in O.S 340/2012 on the file of this Court against Temmanapudi Veerabhadrarao and another for declaration of easmentary right of access through the northern pathway to reach the northern main road, and obtained an ad-interim injunction, restraining Temmanapudi Veerabhadrarao and another from causing obstructions in the northern pathway and that suit is pending for adjudication. Having failed to succeed in their attempts to grab the northern pathway, again they attempted through Gade Rajaramohanrao to occupy the northern pathway, which made their lessors (Suryakala and two others) to institute the suit in OS No.67/2014 on the file of I Addl. Junior Civil Judge
Kakinada, for being prevented to reach the northern main road and thereby thwarted their efforts to occupy northern pathway. Now Temmanapudi
Veerabhadrarao has once again indulged in filing the present suit through the plaintiff, as if he got property and an appurtenant mangalore tiled house (plaint schedule property) towards north of pathway. But, the boundaries, structures and the details of plaint schedule property are absolutely false. Never the plaintiff got constructed a mangalore tiled house in the plaint schedule property. The plaintiff, with a view to obtain exparte ad interim injunction, has invented a story of existence of a mangalore tiled house in the plaint schedule property. But the plaintiff got raised a shed with asbestos sheets roof in the 5 plaint schedule property lying between the norther pathway of their (defendants) property and northern B.T Road/Military Road after obtaining ad interim injunction on 19.09.2014, notwithstanding the fact that Mummidi
Suryakala and other (lessors) have obtained in their favour an injunction in connection with suit in O.S No.67/2014 on the file of I Addl. Junior Civil Judge,
Kakinada. So, their lessors are contemplating to take separate action against the plaintiff herein for making unauthorized constructions in the plaint schedule property, which is a public pathway. The plaintiff has no right, nor title to make constructions in the plaint schedule property. According to the recitals of registered sale deed dated 16.07.1982, the predecessor of plaintiff’s vendor has acquired from one Pyanda Suryanarayana Murthy the property admeasuring Ac.0.05 cents out of Ac.0.13 cents situated in Sy.No.148/3 corresponding to R.Sy.No.148/5, which includes the plaint schedule property, for formation of a road to the use of owners of approved layout vide L.P
No.266/1983, including the defendants. Therefore, the plaintiff’s vendor has neither right nor title nor possession over the plaint schedule property. But, the plaintiff, so as to grab the public pathway, which is being used by them (defendants) has instituted the suit, suppressing the real facts. Therefore, the suit is liable to be dismissed.
8.Upon the failure of plaintiff and defendants to resolve the dispute, across the negotiating table by utilizing the benevolent provisions covered under Section 89 of C.P.C, the issues hereunder are framed by the trial court:
1. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?
2. To what relief?
9. During the course of trial, PWs 1 and 2 were examined and Ex.A1 to A5 were marked on behalf of the plaintiff. Whereas, DW1 was examined and
Exs.B1 to B8 were marked on behalf of defendants.
6 10. The trial court having appreciated the evidence on record, has decreed the suit of plaintiff for perpetual injunction.
11. Feeling aggrieved by the judgment and decree of trial court, the plaintiff has preferred the appeal with the following grounds.
i. The decree and judgment of trial court is contrary to law, weight of evidence and probabilities of case.
ii. The trial court has improperly appreciated the evidence by ignoring the material produced by the defendants to disprove the plaintiff’s case.
iii. The trial court could not have ignored such of those aspects which are elicited during the cross examination of PWs 1 and 2.
iv. The trial court has unnecessarily attached credence to the evidence of
PW1.
v. The trial court should not have lost sight of the admission of PW1 that his vendor did not have valid right and title to obtain Ex.A1.
vi. The trial court should have realized that the evidence of plaintiff is not supporting the facts in issue.
vii. The trial court should not have overlooked the plaintiff’s disentitlement to claim the relief of perpetual injunction in the light of cloud cast on the title of plaintiff.
viii. The trial court ignoring the fact that the public pathway, including the plaintiff’s property, is part and parcel of 100 feet road held that there exists a road between the property of plaintiff and defendants.
ix. The trial court should have considered the recitals of sale deed covered by Ex.B3 to hold that the vendor of plaintiff has already surrendered the plaint schedule property for formation of road in the approved layout under
L.P.No.266/1983.
7 x. The trial court ought not to have failed to overlook the fact that the plaintiff’s vendor has alienated property, more than the property of Ac.0.05 cents that was acquired under Ex.B3 to form a road.
xi. The trial court should not have overlooked the blue print of layout plan covered by Ex.B8 to hold that the plaint schedule property is part and parcel of 100 feet road.
xii. The trial court should have dismissed the suit instead of decreeing the suit by ignoring legal aspects.
12. Heard the learned counsels for the appellants/defendants and respondent/plaintiff.
13. Now the points that arise for determination in the appeal are;
1. Whether the plaintiff has been in possession and enjoyment of the suit schedule property? If so, whether the plaintiff’s possession over the plaint schedule property is legal?
2. Whether the plaintiff has threat of dispossession?
3. Whether the plaintiff is entitled to claim for equitable relief of injunction?
4. Whether the circumstances of appeal warrant interference with the judgment and decree of the trial court?
14. POINTS 1 to 4: The specific case of plaintiff is that he purchased the suit schedule property admeasuring 50 Sq. yards covered by survey number 148/3 of Ramanayyapeta village of Kakinada Municipal Area under a registered sale deed dated 26.06.2000 from one Kakarla Varalakshmi and her children through their GPA holder by name Kakarla Venkatarao for a valuable consideration and was delivered with it’s possession on the even date and whereafter, he got constructed therein a Mangalore tiled house and has been in it’s peaceful possession and enjoyment without interruption from anyone.
The suit schedule property is bounded by East : Property of others, West- 8 property of Veerabhadra Rao, North- B.T road leading to Nagavanam and
South – puntha (pathway of Government). The quartet defendants have got their property towards further south of pathway of Government. The defendants have been running tiles business. They took out site situated towards east of their property belonging to one M.Surya Kala and two others and got constructed therein godowns for stocking of tiles. Nevertheless, the defendants are stocking piles of tiles across the pathway situated towards south of suit schedule property cum north of their eastern godowns, causing obstructions for his ingress and egress to reach the suit schedule property and thereby attempted to dislodge him from the suit schedule property. Whereas, the specific contest of defendants is that they purchased from one Yalamanchi
Vidyavathi through her GPA holder by name Choday Parasuram property of 487 Sq. Yards covered by R.S.No.155/2-6A of Ramanayyapeta village of
Kakinada, bounded by East- Vacant site left in the lay out, West- Plot No.4,
South-5 Building sites of R&B Department and North-Public Road. They have been peacefully enjoying their property, without causing any obstructions towards the northern public road. While so, the eastern and western boundaries owners of the suit schedule property having failed in their attempts to encroach property covered by Sy.No.148/3 corresponding to R.S.No.148/5, which is left for formation of a road to the use of plot owners of approved layout bearing LP No.266/82, including them (defendants) to have access to the northern B.T.Road of suit schedule property, got the suit instituted through the plaintiff without having any manner of right or title. In fact, the vendors of plaintiff have no right or title to alienate the suit schedule property. So, the plaintiff is disentitled to claim injunction. Thus, it is manifest that the defendants have been denying the very right and title of plaintiff in respect of the suit schedule property. It may be a fact that the plaintiff has instituted the suit claiming injunction simpliciter. Therefore, the court cannot embark on a journey to delve deep into the roots of title of plaintiff over the suit schedule property, as if the suit was instituted for a comprehensive relief of declaration.
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However, when the very right and title of plaintiff in respect of the suit schedule property is under dispute, the court has to invariably examine the title of plaintiff incidentally in respect of the suit schedule property so as to ascertain whether the plaintiff is legally holding possession of suit schedule property, without which examination, the controversy involved in the matter cannot be adjudicated upon. Let me now examine the evidence as to how far the plaintiff has succeeded in establishing his legal entitlement to hold the suit schedule property.
15. The plaintiff has been examined as PW1, so as to substantiate his right and entitlement in respect of the suit schedule property. The plaintiff as PW1 has once again reasserted and reaffirmed in his evidence the averments of plaint. Besides, the plaintiff as PW1 has produced certified copy of sale deed
dated 26.06.2000 under the cover of Ex.A1. But, PW1 has failed to produce
the original sale deed of Ex.A1 claiming that the original of Ex.A1 has been handed over to a private financier while borrowing some amount, which explanation remained unretaliated. Anyway, the original of Ex.A1 is a registered document, duly entertained before the concerned registrar. It is not the contest of defendants that the original sale deed covered by Ex.A1 is a sham and nominal document, brought into existence by the plaintiff in connivance with his vendors, rather the plaintiff is suggested to have been misled to purchase the plaint schedule property from his vendors under the original sale deed of Ex.A1 without his vendors having any valid right, title and possession in respect of the suit schedule property. Therefore, execution of original sale deed covered by Ex.A1 is not under dispute, which is why the plaintiff has not attempted to examine either the attestors or scribe of Ex.A1 in proof of it’s execution. Though execution of sale deed covered by Ex.A1 is not under dispute, the defendants are seriously disputing the right, title and possession of plaintiff’s vendors to alienate the suit schedule property under
Ex.A1. So, the plaintiff has to first of all substantiate the right of his vendors over the suit schedule property for conveying it to him under Ex.A1.
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Nevertheless, the plaintiff neither examined any of his vendors, nor examined the GPA holder of his vendors, so as to ascertain how his vendors got right, title and possession over the suit schedule property. The only explanation the plaintiff has offered for non-examination of any of his vendors or GPA Holder of his vendors is that he does not know the whereabouts of his vendors and
GPA Holder of his vendors, which explanation does not have any basis. It is not as if the plaintiff made any enquiries about his vendors and GPA holder of vendors. So, non examination of plaintiff’s vendors and GPA holder of plaintiff’s vendors is a militating circumstance that goes against the right of plaintiff’s vendors. Not only that, the plaintiff has not made any effort to produce before the Court the General Power of Attorney under which his vendors have authorized the GPA holder to deal with the suit schedule property, nor made any efforts to secure the certified copies of title deeds of his vendors under which they acquired the suit schedule property. In other words, the plaintiff has shirked away his onerous responsibility of establishing the right of his vendors in respect of the suit schedule property, which compelled the defendants to investigate into the right of plaintiff and his vendors over the suit schedule property.
16. The recitals of Ex.A1 do disclose that on 26.06.2000 the plaintiff has purchased from one Kakarla Varalakshmi, her son-Srinivas and her daughter-
Padmaja and one Nirmala Devi through their GPA Holder Kakarla Veera
Venkata Rao the suit schedule property of 50 Sq. yards out of Ac. 0.05 cents out of Ac.0.13 cents covered by Sy.No.148/3 of Ramanayyapeta of Kakinada for a sale price of Rs.60,000/-. The vendors of plaintiff have disclosed under
Ex.A1 that the first amongst them (Varalakshmi) purchased the suit schedule property on 16.07.1982 under a registered sale deed bearing
Doc.No.6449/1982 from one Pyanda Suryanarayana Murthy with her
Sthridhana. The defendants through the evidence of PW1 have produced the certified extract of sale deed dated 16.07.1982 vide document No.6449/1982 of SRO, Kakinada under the cover of Ex.B3. As per recitals of Ex.B3, the 11 vendor therein (Pyanda Suryanarayana Murthy) has disclosed that his property of Ac.0.05 cents out of Ac.0.13 cents covered by Sy.No.148/3 corresponding to R.S No.148/5, bounded by East-Military Road, South-
Government Pathway and property of some extent covered by Sy.No.154 and 147/1, West-property of Jalamuri Apparao covered by Sy.No.153/5 and North-
Military Road, was left unutilized and not yielding any income, leading to put such property for sale, whereupon the vendee (Kakarla Varalakshmi), who has got property covered by Sy.No.155/2-6A, lying adjacent to his property intends to purchase such property for the purpose of creating way and thereby she came forward to purchase such property, as such the property was sold to the vendee for Rs.1000/-. The vendor has further declared that he did not have any property left other than Ac.0.05 cents out of total extent of Ac.0.13 cents lying in Sy.No.148/3 corresponding to Sy.No.148/5 after formation of roads.
Thus, the recitals of sale deed covered by EX.B3 are enough to hold that there remains only Ac.0.05 cents out of total extent of Ac.0.13 cents lying in
Sy.No.148/3 corresponding to Sy.No.148/5 and the remaining property out of
Ac.0.13 cents was already utilized for formation of roads. So, the vendee under EX.B3, who is none other than one of the plaintiff’s vendor, cannot have any chance to hold property more than Ac.0.05 cents in Sy.No.148/3 corresponding to Sy.No.148/5. Although PW1 has pleaded ignorance that his vendors got suit schedule property under Ex.B3, PW2, who has got property adjacent to the suitt schedule property has confirmed that his vendors cum the plaintiff’s vendors acquired suit schedule property under Ex.B3, which evidence is sufficient to hold that the vendors of plaintiff have acquired the suit schedule property under Ex.B3. Consequently, Ex.B3 is held to be the source of title for the plaintiff’s vendors to acquire the suit schedule property. None of the recitals of Ex.B3 are under dispute. Therefore, what all the recitals covered under Ex.B3 can safely held to be true. The recitals of Ex.B3 are therefore, plays significant role so as to ascertain the necessity of plaintiff’s vendors, more particularly the first vendor by name Kakarla Varalakshmi, to 12 acquire property of Ac.0.05 cents (which includes suit schedule property of 50
Sq.Yards) out of Ac.0.13 cents covered by Sy.No.148/3 corresponding to R.S
No.148/5. One of the vendors of plaintiff by name Kakarla Varalakshmi, according to the recitals of Ex.B3 has declared that the property of Ac.0.05 cents out of Ac.0.13 cents covered by Sy.No.148/3 corresponding to R.S
No.148/5, which includes the plaint schedule property, is necessary to create a way for her property covered by Sy.No.155/2-6A, but not for division of property into plots to alienate to third parties. Men may lie, but not the circumstances is the adage. Though the plaintiff does not agree that the suit schedule property admeasuring 50 Sq. yards, being integral part of Ac.0.05 cents out of Ac.0.13 cents covered by Sy.No.148/3 corresponding to R.S
No.148/5 covered by EX.B3, is acquired for the purpose of formation of way for the benefit of land covered by Sy.No.155/2-6A, the recitals of Ex.B3 leads to believe and hold that one of the plaintiff’s vendor (Kakarla Varalakshmi) acquired the suit schedule property for the purpose of formation of way for the benefit of users of land covered by 155/2-6A.
17. Now the short question that crops up for consideration is whether a vendee of property shall mandatorily utilize the property for the purpose for which it was acquired or can he utilize the property for the purposes other than the purpose for which it was acquired. A vendee of a property is vested with absolute rights and unbridled powers without any restrictions to utilize his property at his sweet will notwithstanding the purpose for which he acquires such property, unless any reasonable restrictions are imposed in the very sale deed itself about the usage of property in any particular manner. There are no any restrictions imposed under Ex.B3 as to the manner of usage or utilization of the property therein. Therefore, the vendee of Ex.B3, rather one of the vendors of plaintiff (Kakarla Varalakshmi) is at liberty to utilize the property covered by Ex.B3 in the manner in which it derives him benefit. Whatever it might be, one of the vendors of plaintiff by name Kakarla Varalakshmi acquired only Ac.0.05 cents out of Ac.0.13 cents covered by Sy.No.148/3 13 corresponding to R.S No.148/5. Let me now see whether one of the vendors of plaintiff cum vendee of Ex.B3 by name Kakarla Varalakshmi has utilized the property therein, including the suit schedule property, for the purpose for which it was acquired or for any other purposes.
18.The defendants through DW1 have produced certified extract of sale deed dated 19.09.1983, so as to establish that one of the plaintiff’s vendor by name KaKarla Varalakshmi, who acquired Ac.0.05 cents out of Ac.0.13 cents covered by Sy.No.148/3 corresponding to R.S No.148/5 under Ex.B3 has utilized such property, among other properties to form a layout of five house plots, and thereafter formation of layout of five plots, those plots are sold away to various persons, including them (defendants), and while forming layout, the property covered by Ex.B3 (Ac.0.05 cents) has been left to form a road for the owners of 5 plots to reach the northern military road, lying towards north of pathway (puntha). On examination of the recitals of Ex.B5, it has been observed that a layout of 5 plots has been formed vide L.P No.266/1983 in extent of A.0.81 cents covered by Sy.Nos.155/2-6A & 148/5, belonging to one
Koka Krishna Mohanarao for an extent of 0.16 cents, Koka Vivekananda for an extent of Ac.0.15 cents, Koka Padmaratnam for an extent of Ac.0.15 cents,
Koka Mallikarjuna Rao for an extent of Ac.0.15 cents, Kanakapalli Kalamani for an extent of Ac.0.15 cents, totaling Ac.0.76 cents together with property of
Kakarla Varalakshmi for an extent of Ac.0.05 cents purchased under Ex.B5 from Pynda Suryanaraya Murthy, a sum total of Ac.81 cents. Thus, the recitals of Ex.B5 makes it crystal clear that the property of Ac.0.05 cents out of
Ac.0.13 cents covered by Sy.No.148/3 corresponding to R.S No.148/5, that was acquired under Ex.B3, which also includes the suit schedule property, has been utilized for formation of layout vide L.P No.266/1983 of 5 house plots, including the defendants 5th plot of 487 Sq. yards. Ignoring the concrete documentary evidence the defendants have produced before the court to substantiate that the suit schedule property has been utilized for the formation of layout covered by L.P.No.266/1983, the trial court has held that the 14 defendants have failed to file even a scrap of paper to establish that the property of Ac.0.05 cents covered by Ex.B3 was surrendered for formation of layout covered by L.P. No.266/1983. Moreover, the plaintiff as PW1, on being asked to confirm that one of his vendors/Kakarla Varalakshmi has already surrendered property of Ac.0.05 cents of her land covered by Ex.B3 to the
Municipality for the purpose of formation of layout, he has given an evasive answer that he is unaware of such a fact. PW1 did not even dare to deny the factum of surrendering property of Ac.0.05 cents, which includes suit schedule property, covered by Ex.B3 to the Municipality for formation of an approved layout vide L.P.No.266/1983. Therefore, it can be safely held that one of the vendors of plaintiff (Kakarla Varalakshmi) has surrendered the property covered by Ex.B3 (Ac.0.05 cents), including the suit schedule property, for formation of approved layout covered by L.P No.266/1983. So, the findings of trial court that the defendants have failed to file even a scrap of paper to establish that the property of Ac.0.05 cents covered by Ex.B3 was surrendered for formation of layout covered by L.P. No.266/1983, cannot be sustained. The defendants through DW1 have also produced the certified copies of sale deeds of two other plot owners of layout covered by L.P
No.266/1983 under the cover of Exs. B6 and B7, and the recitals of those registered documents also confirms the claim of defendants that the property of Ac.0.05 cents covered by Ex.B3, including the suit schedule property, has been utilized for formation of layout of house plots vide L.P No.266/1983.
Consequently, the defendants by producing Exs.B4 to B7 have probabilized their defence that the property of Ac.0.05 cents covered by Ex.B3, including the suit schedule property had been already utilized for formation of layout of five house plots vide L.P No.266/1983. So, the purpose for which the property covered by Ex.B3 was acquired was the purpose for which the property was utilized. But the plaintiff claims that the suit schedule property is not the integral part of layout of five house plots covered by L.P No.266/1983. Except mere pretension, the plaintiff has failed to produce before the Court any kind 15 of evidence to establish that the suit schedule property is not utilized for formation of layout covered by L.P No.266/1983, nor able to establish that his vendors have acquired some more property out of Ac.0.13 cents covered by
Sy.No.148/3 corresponds to Sy.No.148/5 cents, other than Ac.0.05 cents.
More so, the plaintiff’s vendor’s vendor by name Pynda Suryanarayana
Murthy has declared that he was left with property of only Ac.0.05 cents out of
Ac.0.13 cents covered by Sy. No.148/3 corresponds to Sy. No.148/5 cents after surrendering of remaining property for road formation. Consequently, there would not have any right left for the plaintiff’s vendor’s vendor by name
Pynda Suryanarayana Murthy to alienate property more than Ac.0.05 cents.
Indisputably, the vendors of plaintiff, after formation of layout of five house plots covered by L.P No.266/1983, sold away three plots to the vendor of defendants and two others under the cover of Exs.B4, B6 & B7 vendor during 1982-1985. There has been no evidence to indicate that there remains any piece of site left for the vendors of plaintiff out of Ac.0.13 cents covered by
Sy.No.148/3 corresponds to Sy. No.148/5 in the layout covered by L.P
No.266/1983 to alienate to plaintiff. What all the rights the plaintiff’s vendor had in the layout covered by L.P.No.266/1983 had been divested and conveyed to various persons, including the vendor of defendants. There is nothing to indicate that the vendors of plaintiff have any subsisting right, title or possession in respect of Ac.0.13 cents covered by Sy. No.148/3 corresponds to Sy. No.148/5 after surrendering property of Ac.0.05 cents for formation of house plots covered by layout vide L.P No.266/1983. Consequently, the vendors of plaintiff cannot said to have any property left out of Ac.0.13 cents covered by Sy.No.148/3 corresponding to R.S No.148/5 covered by Ex.B3 for alienation after surrendering property of Ac.0.05 cents for formation of house plots covered by layout vide L.P No.266/1983. Still, the vendors of plaintiff through their GPA are said to have sold the suit schedule property of 50 Sq.
yards to the plaintiff out of Ac.0.05 out of cents Ac.0.13 cents covered by
Sy.No.148/3 corresponds to Sy. No.148/5 without having any manner of right 16 or title or possession. No man shall pass a better title than what he has. But, the plaintiff’s vendors appear to have alienated the suit schedule property, being the part and parcel of property covered by Ex.B3, to the plaintiff under
Ex.A1 and some other extents covered by Ex.B3 to PW2 and her other family members under the cover of Exs.B1 and B2, as if they got right, title and possession in respect of Ac.0.05 cents out of Ac.0.13 cents covered by
Sy.No.148/3 corresponding to R.S No.148/5 covered by Ex.B3 notwithstanding abrogation of rights long ago.
19. The defendants through DW1 have produced their sale deed under the cover of Ex.B4 under which they purchased plot No.5 admeasuring 487 Sq.
yards in the layout covered by L.P No.266/1983 from one Yalamanchi
Vidyavathi. The vendor of defendants has uncovered in the sale deed covered by Ex.B4 not only her source of title, but also the source of title of her predecessor. There is no dispute that the vendors of defendants’ vendor have formed layout covered by L.P No.266/1983. Having formed the layout, they sold away plot No.5 to the vendor of defendants under Ex.B5. So, the vendor of the defendants has perfectly acquired from her vendors the property covered by Ex.B4, from whom the defendants have acquired property under the cover of Ex.B5. Moreover, PW2 has also confirmed in his cross examination that the defendants purchased one of the plots out of 5 plots covered under the layout covered by L.P No.266/1983 and got constructed four shops therein. Thus, the defendants have fully substantiated their defence.
20. The defendants through DW1 have produced the blue print of approved plan covered by LP No.266/1983 under the cover of Ex.B8. On examination of
Ex.B8, it is noticed to have been issued by the Director of Town and Country
Planning, Government of A.P. The defendants claim that they have received
Ex.B8 from the Director of Town and Country Planning in pursuance of application they made to obtain it’s copy. Ex.B8 is annexed with a registered 17 postal cover with stamps and seal of Postal Department, addressed to the 1st defendant from the Office of Director of Town and Country Planning,
Government of A.P, Hyderabad with a postal receipt bearing time of booking, date of booking and weight of cover, which postal cover annexed to Ex.B8 strengthens the contention of defendants that Ex.B8/Blue Print Plan has been received from the Director of Town and Country Planning, Government of A.P,
Hyderabad. Unless, the defendants have applied for obtaining certified copy of blue print plan in respect of L.P.No.266/1983, there will not be any necessity for the Department of Town and Country Planning to supply to the defendants the blue print of plan covered by Ex.B8. Nothing has been produced by the plaintiff, nor any circumstances are brought to record to indicate that Ex.B8 is a created document. Consequently, Ex.B8 is a genuine document, issued by proper authority. In the light of Ex.B8, the location map under the cover of
Ex.A5, said to have been issued by a licensed surveyor, fades into insignificance. Ex.B8 is directly in fine tune with the recitals covered by Ex.B4,
Ex.B6 and Ex.B7. Even according to the entries made in Ex.B8, five plots are laid in an area of Ac.0.81 cents covered by survey numbers 148/3 and 155/2- 6A of Ramanayyapeta Village. Thus, the blue print of plan covered by Ex.B8 also supports the version of defendants that the property covered by
Sy.No.148/3, which includes the suit schedule property has been utilized for formation of five plots covered by L.P No.266/1983. According to the pictorial and representational diagrams covered by Ex.B3, meant to describe the site utilization, like residential use, layout boundaries, existing roads, proposed roads, master plan roads and puntha road, the vacant property covered by Sy.
No.148/3 is left for proposed roads. Therefore, the contention of defendants that property of Ac.0.05 cents, including the suit schedule property admeasuring Ac.0.05 cents out of Ac.0.13 cents covered by Sy.No.148/3 corresponding to R.S No.148/5 is left for formation of proposed roads, is thus fully substantiated. According to the extract of Kakinada Master Plan covered by Ex.B3, the Government Pathway (puntha) of 40 feet, lying towards South of 18 suit schedule property cum further north of defendants’ property was proposed to be widened to 80 feet road. Similarly, the existing 40 feet military road, lying towards north of suit schedule property is proposed to be widened to 80 feet road according to the Master Plan, though not 100 feet road. The property of
Ac.0.05 cents, including the suit schedule property of 50 Sq. yards is lying in between two roads of 40 feet, proposed to be widened to 80 feet road and that was the reason why the property of Ac.0.05 cents, including the suit schedule property of 50 Sq. Yards is left for the purpose of widening of roads to 80 feet.
21. The defendants have been contending that high-tension electrical wires have been running above the suit schedule property and that NFCL water pipes are passing underneath the suit schedule property, which is indicative of
Government’s property left for public utilization while taking up process of road widening. It has been elicited from the plaintiff as PW1 that the high tension electrical wires are running above the house constructed in the suit schedule property and that some water pipelines of NFCL are passing underneath ground, situated near to the suit schedule property. PW1 has not offered any plausible explanation as to why high tension electrical wires have been running above his house and that underneath water pipelines of NFCL (Nagarjuna Fertilizers Company Limited) are passing near to his house, without which explanation what is it that could be inferred is that because the suit schedule property is left for public purpose, high tension electrical wires are running above the suit schedule property and that some water pipelines of
NFCL are passing underneath the ground, lying near to the suit schedule property, and such inference is drawn regard being had to the circumstances of case.
22.The defendants have produced overwhelming documentary evidence to substantiate their defence that the suit schedule property against which the plaintiff got constructed a tiled house or house with asbestos sheets is the property left for public utility, like widening of roads, meant for access not only 19 to the plot owners of layout covered by L.P.No.266/1983, including the defendants, but also to provide access to the general public. Notwithstanding creation of serious cloud in respect of plaintiff’s right, title and entitlement over the suit schedule property and it’s appurtenant house therein, the plaintiff did not attempt to convert his suit for injunction simpliciter to a comprehensive suit for declaration to perfect his right, title and entitlement in respect of the suit schedule property and it’s appurtenant house therein, rather continued the battle for claiming injunction simpliciter. Therefore, the plaintiff’s suit for injunction simpliciter does not resolve the controversial aspects involved in the matter. Consequently, the suit for injunction simpliciter, without seeking a declaratory relief is not maintainable.
23.It may be a fact that the plaintiff has been in peaceful possession and enjoyment of the suit schedule property and it’s appurtenant house therein.
The plaintiff is held to have been in occupation of the suit schedule property, that is left for public utility, without having any valid right. In other words, possession of plaintiff over the suit schedule property is not legal. The plaintiff, being the person in wrongful possession of the suit schedule property, meant for public utility cannot claim equitable relief of injunction against the defendants for whose benefit the suit schedule property is acquired and left for widening of roads. The right of defendants to utilize the suit schedule property while enjoying their property covered by the approved layout vide L.P 266/1983 cannot allowed to be interfered with, and if allowed to be interfered with, the defendants will be deprived of their legitimate right of access to the northern public road of suit schedule property. Granting of perpetual injunction in favour of the plaintiff would come in the way of defendants and his neighbouring owners of property covered by layout under L.P No.266/1983 to proceed against the plaintiff to get him evicted from the suit schedule property, meant for public utility, by taking recourse to due process of law. Nevertheless, the trial court has granted perpetual injunction in favour of the plaintiff without envisioning the consequences of granting perpetual injunction.
20 24. The plaintiff claims that the defendants have been stocking piles of tiles in the public pathway situated towards southern side of suit schedule property, causing obstructions for their ingress and egress to reach the suit schedule property and in spite of bringing such obstructions to the notice of authorities of Municipal Corporation of Kakinada, no action is launched against the defendants on account of influence of defendants. The plaintiff has not produced before the Court copy of representation, he is said to have made
before the concerned authorities for removal of obstructions, nor disclosed the
date or month or year of making such a representation before concerned authorities, without there being any justifiable exception. No attempt is made to implead the Municipal Corporation of Kakinada as one of the parties to the suit for their inaction in removing the obstructions, said to have been caused towards southern pathway of suit schedule property. The plaintiff has not even taken recourse to take out a Court Commission to record the physical features and topographical features of the southern pathway of suit schedule property.
Still, the plaintiff claim that the defendants by stocking piles of tiles causing obstructions towards southern pathway of suit schedule property. Of course, I am not unmindful of the photographs the plaintiff has produced under the cover of Ex.A4. It has not been elicited from DW1 that the piles of tiles seen in the photographs covered by Ex.A4 are stocked in the southern pathway of suit schedule property. DW1, on being confronted with the photographs covered by Ex.A4 has affirmed that the piles of tiles seen in the photographs covered by Ex.A4 are being stocked within his property. Mere production of photographs are insufficient to hold that the property at which piles of tiles are stocked, is the pathway situated towards south of suit schedule property.
Moreover, the plaintiff as PW1 has confirmed that the main doorway of his house is opened towards north of the suit schedule property and he is using the northern military road to reach the suit schedule property. So also, PW1 has confirmed that there are no doorways opened towards east and south of his house raised in the suit schedule property. So, the fact remains 21 established is that there is no doorway to the house of plaintiff opened towards south of suit schedule property. PW1 has failed to explain what necessitates him to use southern pathway to reach the suit schedule property.
PW1 neither established causing of obstructions through the southern pathway of suit schedule property, nor established any necessity of him to pass through the southern pathway of suit schedule property to reach his house. Therefore, it cannot be said that the defendants are causing any obstructions to the plaintiff to reach the suit schedule property and it’s appurtenant house through the southern pathway.
25.The plaintiff claims that just prior to the institution of suit, the lawless defendants, accompanied by their henchmen attempted to dislodge him from the suit schedule property, but their efforts were foiled with the help of neighbours. The plaintiff has delightfully left in his pleadings and evidence, the names of neighbours, with whose support he could foil the attempts of defendants to dislodge him from the suit schedule property, nor attempted to examine any of such neighbours, nor disclosed any specific time, date of interference, without any justifiable cause or reason. However, I have not lost sight of the fact that the plaintiff has examined PW2 in support of his claim that the defendants have attempted to dislodge him from the suit schedule property. But, PW2, nowhere stated that she, as a neighbor of plaintiff helped him to resist the defendants from dispossessing him from the suit schedule property. What PW2 has affirmed in her evidence is that the plaintiff, with the help of neighbours resisted the defendants from being dispossessed from the suit schedule property, but not with her support as a neighbour. Nevertheless, the trial court has erroneously hold that the plaintiff has examined one of the neighbours as PW2. PW2 has although purchased property of 50 Sq. yards under Ex.B1, and purchased another extent of 33.3 Sq. yards under Ex.B2 in the name of her children, situated adjacent to the suit schedule property, she is said to have sold away such properties to one Rajaram. Thus, PW2 cannot claim to be neighbor of the suit schedule property. In addition to that, PW2 22 claimed in the affidavit of her chief examination that she is a third party to the proceedings. But, it has been elicited from PW2 in the very opening lines of cross examination that the plaintiff is her junior brother in law. It appears that
PW2, being the close relative, has been supporting the false narrative of plaintiff. The plaintiff should not have failed to state with little elaboration as to the manner of interference had the defendants really interfered with his possession over the suit schedule property. Mere making unsubstantiated allegations are not enough. If at all any incident of interference was happened, the plaintiff would have dissected the incident with all details, like number of persons accompanied the defendants, nature of weapons carried, the means by which attempt is made to dislodge him from the suit schedule property, nature of discussions held before alleged attempt of dislodgement, time of incident, duration of incident, names of neighbours with whose assistances attempts are foiled, and so on and so forth. Barring a statement of interference, the plaintiff has failed to disclose any of the associated incidents that are capable of explaining incident of trespass. Therefore, it is hard to believe that the defendants have ever attempted to trespass into the suit schedule property aiming to dislodging the plaintiff there from. Indisputably, there are some civil suits pending between the defendants and the neighbours of plaintiff, which exemplifies the intention of defendants to exhaust their remedies through court of law to get their rights over the suit schedule property adjudicated upon, without taking law into their own hands. The defendants have clarified that they have already intimated to their lessors, from whom property is taken on lease to raise godowns, for initiating necessary action against the plaintiff for occupying the suit schedule property with a view to infringe their right of access to reach the northern military road from their respective properties, which explanation drives to suggest that the defendants and their lessors are contemplating to avail remedies by recourse to due process of law. In the absence of proof of interference with the suit 23 schedule property, threat of interference from the defendants cannot be inferred.
26. The plaintiff claims to have been in peaceful possession and enjoyment of the suit schedule property. The plaintiff as PW1 affirmed that a house with asbestos sheets roof is existing in the suit schedule property. The defendant, as DW1 has also acknowledged that the plaintiff raised a hut in the suit schedule property and has been residing in it. The plaintiff as PW1, apart from producing the certified copy of registered sale deed under Ex.A1 under which he purchased suit schedule property, has also produced house tax receipts under the cover of Ex.A2, and property tax demand notices under the cover of
Ex.A3. The evidence of PW1 coupled with the documentary evidence covered by Exs.A1 to A3 read in conjunction with the admitted factual evidence of
DW1, establishes the only fact that the plaintiff has been in possession and enjoyment of the suit schedule property. Mere possession of a property is not enough to seek equitable relief of injunction, unless such possession is legal.
It is held in the earlier part of my discussion that the plaintiff got constructed a house in the suit schedule property that is left for public utility. Therefore, possession of plaintiff in respect of the suit schedule property cannot said to be legal. So, the plaintiff is disentitled to seek equitable relief of injunction. The plaintiff, not being in legal possession and enjoyment of suit schedule property, cannot maintain a suit claiming injunction against the defendants, for whose benefit as owners of Plot No.5 covered by layout under L.P
No.266/1983, and for the benefit of general public, the suit schedule property was left in the layout to reach northern military road of suit schedule property.
27. Thus, regard being had to the totality of factual scenario, I am constrained to arrive at an irresistible conclusion that the plaintiff’s possession in respect of the suit schedule property is not legal, nor there has been any real threat of dispossession, which in it’s turn disentitles the plaintiff to claim equitable relief of injunction. The points under discussion are answered 24 accordingly. Consequently, the circumstances of appeal warrant inference with judgment and decree of the trial court.
28. In the result, the appeal is allowed, setting aside the judgment and decree of trial court dated 25.06.2019 rendered in the suit in OS 370/2014 on the file of I Addl. Junior Civil Judge, Kakinada and thereby the suit in O.S
No.370/2014 on the file of I Addl. Junior Civil Judge, Kakinada claiming perpetual injunction has been dismissed without costs. Each party shall therefore do bear it’s own costs.
Typed to my dictation to the Stenographer Gr-II, corrected and pronounced by me in the open Court, this the 30th day of January, 2025.
Sd/ Sri N.Ramesh Naidu III Addl. Civil Judge (Senior Division) Kakinada
APPENDIX OF EVIDENCE
No oral or documentary evidence is adduced on either side.
Sd/ Sri N.Ramesh Naidu III Addl. Civil Judge ( Senior Division) Kakinada
Copy to the I Addl. Civil Judge (Junior Division), Kakinada