O.S.No.211/2016
PSCJC/GWK 1
IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AT
GAJUWAKA
Present:- SMT. N. SRIVIDYA,
PRINCIPAL SENIOR CIVIL JUDGE,
GAJUWAKA.
THURSDAY, THE 14 th DAY OF SEPTEMBER, 2023
ORIGINAL SUIT No.211/2016
Between:
Likithapudi Shyama Kumari, W/o Srirama Murthy, Hindu, aged 50 years, Housewife, residing at D.No.28-63-4/4, Vadlapudi Post, Kanithi RH Colony, Visakhapatnam-530046. Aadhar No.4494 4283 9373. Ph.No.9160999005.
… Plaintiff And :
1. Angati Krishna, S/o late Apparao, Hindu, aged about 45 years, residing at Kanithi R.H. Colony, Vadlapudi Post, Visakhapatnam- 530046. (Aadhar number and phone number are not known to the plaintiff)
2. Dasari Srinivasa Rao, S/o not known, Hindu, aged 46 years, Employee in Visakhapatnam Steel Plant as a Junior Manager, SMS- 2, residing at Vadlapudi Post, Kanithi RH Colony, Visakhapatnam- 530046. Phone No.9848229591 and Aadhar number not known to the plaintiff.
... Defendants
This suit came before me for hearing on 30.08.2023 in the presence of Smt. K. Sudha Rani, learned advocate for the plaintiff and Sri. B. Prabhakara Rao, learned Advocate for defendants 1 & 2 and upon hearing their arguments and the matter having stood over for consideration till this day, this Court delivers the following:
J U D G M E N T
1.The present suit is filed by the plaintiff seeking the relief of declaration that the plaintiff is the absolute owner and title holder over the suit schedule property and also sought for consequential relief of permanent injunction restraining the defendants, their men and servants from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property and also sought for the costs of the suit and any other relief which the Court deems fit.
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PSCJC/GWK 2 2.a) The main contention of the plaintiff is that she became the absolute owner of the plot Nos.1854, 1855 to an extent of 53.5 sq. yards and 1856 to an extent of 107 sq. yards in total, she purchased 160.5 sq.
yards by paying valuable consideration to Gunja Chintayya, S/o late
Kesava Rao and Smt. Gunja Nagendramma, W/o Gunja Chintayya under a registered sale deed dated 04.02.2003, Sy.No.13, Assessment
No.1088201205 and D.No.28-63-4/5, Vadlapudi Post, Kanithi RH Colony,
Visakhapatnam-530046 bearing document No.853/2003 of the Sub-
Registrar of Gajuwaka and that the boundaries are
East : Municipal Road, 36 sq. feet or 10.97 sq. meters
South: Plaintiff’s another house, 40 sq. feet or 12.19 sq. meters
West : Plot Nos.1843, 1844, 1845, 36 sq. feet or 10.97 sq. meters
North : 12 feet road, 40 sq. feet or 12.19 sq. meters.
2.b) It is also the case of the plaintiff that from the date of purchase of the said property under the guise of said sale deed, she became the absolute owner of the same and she has been in peaceful possession and enjoyment of the same without any interference and interruption from any one including the defendants and that the plaint schedule properties being contiguous and abutting properties to each other, the boundaries for the plot are described as a single unit.
2.c)It is the case of the plaintiff that soon after purchase of the said property, she constructed a house with asbestos sheets and later she constructed a thatched house, for which, the property tax was allotted and were paid taxes to the Municipal Corporation up to date and that could not proceed further with the construction subsequently, being
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PSCJC/GWK 3 lady and her husband being a retied employee, having two children and since due to their old age, the plaintiff could not raise the RCC building.
2.d) It is also the case of the plaintiff that R-Card holders are the persons from whom the plaintiff purchased the property and that though there are R-Cards, the defendants 1 & 2 having no identity to become rehabilitants, forcibly tried to enter the suit schedule property with their men and muscle power, being outsiders, but closely attached to local land brokers took advantage of the inability and health issues of plaintiff and far residing children of the plaintiff, both the defendants together with their men entered into the suit schedule property two days prior to the filing of the suit and tried to measure the property and to make certain marks over the same and soon after having knowledge about the said issue, the plaintiff questioned about marking and that both the defendants 1 & 2 with some unknown persons, by using filthy language necked out the plaintiff from the suit schedule property and with the intervention of the neighbours gathered there, defendants left the place threatening the plaintiff i.e., they will make construction in the suit schedule property under any circumstances and would come to the place with very more men and material for the said purpose of construction and that if the plaintiff attempts to resist them, they would do away the life of the plaintiff, through their men and threatened with dire consequences.
2.e) It is further the case of the plaintiff that on 10.10.2016 again with the local land brokers by names Bonda Suri Babu and Jagan Jims
Talent School Correspondent and some unknown persons tried to take measurements over suit schedule property and when plaintiff went, with
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PSCJC/GWK 4 the help of persons gathered there, both the plaintiff and other persons could able to resist the defendants though they both were openly threatening that they will come and trespass the property and make constructions under any circumstances and that they will not allow the plaintiff to make any constructions.
2.f)It is further the case of the plaintiff that defendants determined to trespass into the suit schedule property and since they both been highly influential persons and who can materialize the threatenings made by them to the plaintiff, as the defendants are having political background and can easily materialize the threatenings, plaintiff rushed to the police and though intimated the same to them, police did not take any action and suggested that since the matter is a civil matter better plaintiff approach the Civil Court and plaintiff approached this
Court.
2.g) It is also the contention of the plaintiff that the defendants who were always disputed with all, plaintiff opted to file the present suit for the reliefs mentioned supra.
3.a) On the other hand, defendant Nos.1 & 2 filed their written statement denying the entire contentions raised by the plaintiff as allegations and projected the defence stating that 1st defendant was allotted a plot bearing No.1856-A at Kanithi Village, Vadlapudi
Rehabilitation Colony, Phase-II under married major son quota of his father Angati Appa Rao and that R-Card of said Appa Rao is bearing
No.93 and that there was allotted a plot to the father of the plaintiff No.1 by the time of land acquisition for the establishment of Visakhapatnam
Steel Plant and that subsequently when 1st defendant also applied for
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PSCJC/GWK 5 allotment of plot as a plot which was allotted to the father of 1st defendant was congested to live jointly, considering the application submitted by 1st defendant along with his father Angati Appa Rao,
Special Deputy Collector, Rehabilitation Colony and Resettlement is allotted odd bit which is situated towards north of the plot No.1856 vide proceedings RC.No.104/2011/SA/dt. /02/2011 and delivered possession to the 1st defendant. It is also the defence of the defendants that basing on the said proceedings, by Special Deputy Collector, Steel Plant, Land
Acquisition, 1st defendant constructed an asbestos sheets roofed shed and started enjoying the said plot allotted to the 1st defendant and that the Greater Visakhapatnam Municipal Corporation laid house tax for the said asbestos sheets shed constructed by the 1st defendant and also apart from the said tax, electrical consumption bills were also paid by the defendants to the APEPDCL and that they both are in possession of the suit schedule property.
3.b) Further it is the contention of the defendants that where suit schedule property is situated is a rehabilitation colony and that plots were distributed to the land loosers under the rehabilitation scheme and that each plot is measured 107 sq. yards with 24 X 40 feet measurements and that if any excess land is available it was left without issuing any number to it and subsequently when the family of land loosers are excess and unable to live in the small house i.e., 107 sq.
yards, the Government introduced to issue excess plots to the rehabilitants under married major sons quota and in the said quota the odd bits to the applicants i.e., the sons of the land loosers/R-Card holders, were allotted with the odd bits of land and accordingly a plot was allotted to plaintiff No.1 by Special Deputy Collector, Land
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PSCJC/GWK 6
Acquisition, Visakhapatnam Steel Plant and he is in possession and enjoyment of the schedule property and further it is the contention of the defendants that the then Tahasildar, Gajuwaka issued a patta to the 1st defendant by confirming the orders of Special Deputy Collector, Land
Acquisition, Visakhapatnam Steel Plant and that plaintiff is unnecessarily raising dispute without any cause, right, interest or possession over the suit schedule property and that with a view to grab the property of 1st defendant, the suit is filed and that the registered sale deed mentioned in the plaint is wrong and that the suit is not at all maintainable and is liable to be dismissed.
4.Basing on theaforesaid pleadings, the following issues are framed for trial:
1. Whether the odd bit plot bearing No.1856-A is situated on the northern side of plot No.1856 or not?
2. Whether the plaintiff’s title, possession and enjoyment
over suit schedule property is true, correct or not?
3. Whether plaintiff is entitled to get the decree passed for
declaration of his title and consequential permanent
injunction against the defendants as prayed for or not?
4. To what relief?
5.In order to substantiate her case, plaintiff exhibited Exs.A.1 to A.13 by examining P.Ws.1 to 4 and on the contra defendants 1 & 2 examined D.Ws. 1 to 3 and exhibited Exs.B1 to B.7.
6.Heard both sides.
7.Learned counsel for plaintiff urged that as per Exs.A1 to A13, it can safely be concluded that plaintiff is the absolute owner of the suit schedule property and that Ex.A2 registered sale deed which was executed in favour of the plaintiff was proved by the plaintiff by
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PSCJC/GWK 7 examining P.Ws.2 to 4 and further urged that the defence put up by the defendants is baseless and cannot be taken into consideration much particularly in the light of Ex.B1 which does not show any date of issuance of Ex.B1 and further urged that mere filing of tax receipts, passbooks and acknowledgments issued by customer service centre regarding electricity bill, could never proved the defence put up by the defendants and further it is argued that defendants projected a wrong defence which is not even proved by themselves and miserably failed in destroying the case of the plaintiff and that when the plaintiff could able to submit the pattas and original registered sale deeds, it can safely be concluded that plaintiff is the absolute owner of the suit schedule property and suit is to be decreed in favour of the plaintiff.
8.Learned counsel for plaintiff also argued at length that the age of D.W.1 if taken into consideration, it can safely be concluded that by the date of alleged allotment of plot under Ex.B1 to the 1st defendant by the Steel Plant Authorities under the so called married major sons quota, he was aged about 5 years and it is highly unimaginable issue that a 5 years old boy will not be allotted any plot much particularly under the married major sons quota. It is also the argument of the learned counsel for the plaintiff that D.W.1 categorically admitted that during the course of his cross-examination that by the date of issuance of plot No.1856-A, he was a job holder and that he was aged about 36 years in the year 2011 and by the date of passing of award by the Steel
Plant for the sake of rehabilitants, in the year 1980, he was aged about 5 years. It is also urged that D.W.1 has no knowledge as to the alleged fact of enquiry conducted by Special Deputy Collector, Land Acquisition,
Visakhapatnam Steel Plant at the time of allotting plots i.e., 1854, 1855,
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PSCJC/GWK 8 1856 to the plaintiff and further urged that D.W.1 categorically admitted in his cross-examination that he filed Ex.B1 and deposed that he has no objection to send the same along with Ex.A7 to a handwriting expert and also deposed that 2nd defendant is his friend and Steel Plant employee.
The learned counsel for plaintiff urged that D.W.1 categorically admitted that no plot will be allotted on a repeated proceeding and further it is urged that D.W.2 who is 2nd defendant in the main suit in his cross- examination deposed that he had no knowledge about the details of
R-Card and other particulars of his family members though he had knowledge about the issuance of R-Card to the father of 1st defendant. It is further urged that this D.W.2 being friend of 1st defendant categorically deposed that he has no knowledge about plot No.1856-A and whether D.W.1 is paying tax or property bills etc., and that he has no knowledge who is the plaintiff in the suit, but knows the husband of the plaintiff and that 1st defendant informed him that he was issued a plot under married major sons quota. The learned counsel for plaintiff further urged that when D.W.2 deposed that he was present for some time at the time of alleged construction, he pleaded the ignorance about the particulars of plot, its extent and boundaries of the defendant. It is argued that when D.W.2 being the friend of D.W.1 i.e., 1st defendant is not having any knowledge about the property of the defendant No.1, his evidence cannot be taken into consideration and further urged that the evidence of D.W.3 who is none other than the advocate commissioner is of no use and that he himself admitted why he was examined as D.W.3 by the defendants, that there is a correction in layout plan regarding mentioning of plot numbers and that he cannot even say the exact number by looking into the layout plan and further admitted that
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PSCJC/GWK 9 measurements of the plot No.1856 must be 24 X 40 feet as per layout plan and that as per the measurements on ground, it was 46.6 X 24 feet and it is further urged that when the defendants are unable to demolish the very title of the plaintiff over the suit schedule property in any manner though they examined D.Ws. 1 to 3 and exhibited Exs.B1 to B7, plaintiff must be declared as the absolute owner of the suit schedule property.
9.Learned counsel for defendants argued at length that plaintiff unnecessarily projected a dispute against the defendants. The learned counsel for the defendants also by relying upon the judgments reported in ALD 1997 2 71 in between Chittoju Brahmaiah Vs
Saridasubha and reported in AIR 2007 Kant 91 in between Sri
Aralappa Son Of Sri Chowrappa, ... vs Sri Jagannath Son Of Late
Sri ... on 24 August, 2006.
10.The learned counsel for defendants vehemently urged that when the plaintiff could not establish her possession over the suit schedule property even on the date of filing of the suit, the very relief of declaration let alone the permanent injunction cannot be granted in favour of the plaintiff and prayed this Court to dismiss the suit. It is further argued by the learned counsel for defendants that during the course of cross-examination of P.W.1, she categorically admitted that she did not specifically plead whether 53.5 sq. yards is part and parcel of which plot either under plot No. 1855 or plot No. 1854 and further P.W.1 replied that plot No.1856 is bounded by roads on its east and south. It is urged that plaintiff is not clear about her case and there is no clarity to her and further urged that when P.W.1 has no knowledge as to one
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PSCJC/GWK 10 person only in the family is entitled to obtain R-Card, her case cannot be believed. It is urged that when P.W.1 is unable to mention the linear measurements of the shed in the suit schedule property, her evidence cannot be taken into consideration. The defendants counsel further urged that when P.W.1 categorically deposed that when there is no gap between 1856 and the road on its north, it can safely be concluded that the suit schedule property is not within the knowledge of plaintiff and that even she cannot locate the disputed portion of the land and that since all the land of 1st defendant is situated towards north of plot
No.1856, it can safely be concluded that plaintiff is not in possession of the suit schedule property and that plot number 1856-A which is an odd bit allotted to 1st defendant, but not to the plaintiff. It is also urged that plaintiff categorically deposed that she did not obtain valid approval for making any constructions and when she did not even obtain any plan, her constructions are void in nature. It is also argued that the evidence of P.W.2 and P.W.3 is of no use when Ex.A2 is not a valid document and further urged that the evidence of P.W.4 also cannot be looked into and prayed this Court to dismiss the suit with costs.
11.In order to avoid the repetition, this Court intends to decide issues 1 & 2 at the same time.
I S S U E Nos.1 & 2
1. Whether the odd bit plot bearing No.1856-A is situated on the northern side of plot No.1856 or not?
2. Whether plaintiff’s title, possession and enjoyment over suit schedule property is true and correct or not?
12.The basic case of the plaintiff is to the effect that she became the absolute owner of the suit schedule property under the
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PSCJC/GWK 11 guise of Ex.A2 and Ex.A1 through which her vendor purchased the property and further contended that the other exhibits i.e., Exs.A3 to
A13 clearly discloses that the plaintiff is the absolute owner of the suit schedule property and that she has been regularly paying the house tax as well as municipal tax, water tax and that even when the plaintiff got issued Ex.A10 to the concerned Department under Section 80 of C.P.C., the plaintiff could able to get a certification from the concerned
Department regarding the ownership of the plaintiff over the suit schedule property in writing from the concerned Department. It is further the contention of the plaintiff that by virtue of said document i.e.,
Ex.A7 which was issued by Special Deputy Collector, Land Acquisition,
Steel Plant, Visakhapatnam, plaintiff became absolute owner of the suit schedule property as it is clearly shown in the document i.e., Ex.A7. The contention of the plaintiff is that defendants having no other avocation, trying to dispossess the plaintiff from the suit schedule property and also trying to usurp the property of the plaintiff and also challenging the very title of the plaintiff, as such plaintiff approached this Court to get the declaration that she is the absolute owner of the suit schedule property and that she needs permanent injunction against the defendants, their men and servants from ever interfering with the peaceful possession of the plaintiff over the suit schedule property. The contention of the plaintiff is that entire suit schedule property is pertaining to plot Nos.
1856, 1855, 1854 bearing Door No.28-63-4/5 vide assessment
No.1088201205 and that the total extent of the land is 160.5 sq. yards bounded by East: Municipal Road, South: House property of the plaintiff,
West: Plots bearing Nos. 1843, 1844 and 1845 and North: 12 feet road.
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PSCJC/GWK 12
13.In order to substantiate her claim, the plaintiff examined herself as P.W.1 and exhibited Exs.A1 to A13. The entire contention of the plaintiff in the plaint was the replica of her evidence in lieu of her evidence in chief whereas during the course of cross-examination, this plaintiff/P.W.1 categorically admitted that she is not a R-Card holder and that no property was allotted to her under rehabilitation scheme and admitted that she did not specifically plead that 53.5 sq. yards is part and parcel of plot Nos. 1855 or 1854 and that plot No.1856 is bounded by roads towards its East and North and plot No.1843, is on its west, plot
Nos.1854 and 1855 are towards South. This witness categorically deposed about her purchase from Nagendramma regarding plot bearing
No.1856. This witness further admitted that she purchased plaint schedule property allotted to R-Card holders under Steel Plant
Rehabilitation Scheme and further deposed that she has no knowledge about the condition for alienation of said R-Card lands.
14.During the course of further cross-examination, this witness categorically stood strong regarding her purchase of suit schedule property under different R-Cards and she clearly deposed that she filed pattas Exs.A8 & A9 before this Court and she also deposed that there is a shed in the suit schedule property and she cannot mention the linear measurements of the said shed. Even the several suggestions were posed to the P.W.1 regarding issuance of Ex.A7 stating that Ex.A7 is not a genuine document, but she categorically deposed that it was given to her by Special Grade Deputy Collector, Land Acquisition, Steel Plant,
Visakhapatnam when they approached him. She also explained about not much gap between the plot No.1856 and the road on its north portion and she also added to her evidence that there is a drainage
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PSCJC/GWK 13 which was constructed in between the plot No.1856 and northern side road and also deposed that defendants disputed with her for the site located on the north of their plot No.1856. She also deposed about payment of tax and filing of those tax receipts for the shed and also deposed that out of the three plots, there is one pucca house and two sheds in the site and also constructed a house in plot No.1854 and part of the 1855 plot and pleaded ignorance that she has no knowledge about the linear measurements of the said house, but categorically deposed that she did not obtain any valid permission, valid plan approval for making certain constructions. She deposed that she verified Exs.A8 & A9 recitals and further admitted that she filed property tax books for the house bearing No.28-63-4/5 and tax receipts for the same house under Exs.A3 & A4 and further deposed that 8 years ago they got constructed the said house and denied the suggestion that the disputed property is nothing to do with the existing construction already made by the plaintiff and it was denied by this witness. This witness further deposed that she has gone through the defence taken by the defendants in the suit and denied the rest of the suggestions that in order to usurp the property of the defendants, the present suit is foisted against them. Plaintiff could able to examine her vendors wherein P.W.2 who is none other than Gunja Chintayya and he deposed that he executed Ex.A2 along with his wife Nagendramma on 04.02.2003 regarding plots 1854, 1855 and 1856 of Vadlapudi Rehabilitation Colony and during the course of cross-examination, this witness deposed that he has been working as Assistant Manager, Visakhapatnam Steel Plant and he deposed that he purchased the plot No. 1854 from one person by name Dharma Rao regarding plot No.1855, he purchased the said plot
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PSCJC/GWK 14 from Kondrapu Musalayya and plot No.1856 he purchased from
Kondrapu Pydi Naidu and after verifying their pattas which were issued by the Steel Plant Authorities, he purchased all the said properties. This witness also deposed in the cross-examination that he has not gone through the condition No.8 of their pattas and admitted that as per condition No.8 in Ex.A8 which is nothing but patta, the patta holders cannot alienate their plots without consent from the Government and also deposed that if any transfer is made without consent of
Government, the patta is liable to be cancelled. This witness also deposed that he has no knowledge whether their vendors obtained any consent from the Government prior to their purchase of lands from the patta holders and further deposed that he has no knowledge that his purchase of plots from patta holders is invalid and that he is not entitled for any right or title over the said plots and as well as Ex.A2 which was executed by them do not confer any right, title to the plaintiff.
15.This witness also deposed in his cross-examination that he can mention the boundaries of plot No.1856 i.e., towards East, there is a road, towards South, plot No.1855 and towards North, vacant site of
Government is existing and towards West he pleaded ignorance and admitted that plot No.1856 is situated towards North of plot No.1855 with 24 X 40 sq. feet measurements and further admitted that there is a road towards North to the plot of 1856 intervened by some Government vacant site and further deposed that he cannot say the extent of
Government site. This witness also deposed that he is nowhere concerned to the said Government site and he did not sell the same to anyone and admitted that towards North of Plot No.1856, it was wrongly
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PSCJC/GWK 15 mentioned as 24 feet road instead of Government vacant site in Ex.A2 sale deed.
16.P.W.3 is wife of P.W.2 and she categorically deposed that she along with P.W.2 executed Ex.A2 sale deed in favour of plaintiff on 04.02.2003 and further deposed that regarding plots 1854, 1855 and 1856 of Vadlapudi Rehabilitation Colony said sale deed was executed and during the course of cross-examinations she deposed that plot
No.1856 stands in her name and it was sold to the plaintiff and that she do not remember the boundaries of plot No.1856 and that P.W.2 being her husband used to look after the sale transactions of Ex.A2 and she has no knowledge about anything about the said transaction.
17.Plaintiff also got examined P.W.4 who is a third party, but an employee of Steel Plant and he filed chief affidavit in lieu of his examination in chief stated that he was very much present at the time of transaction and that consideration of Rs.96,500/- was paid at the time of execution of Ex.A2 in favour of P.Ws.2 & 3 by the plaintiff and also deposed that he knows both the plaintiff and her vendors since 20 long years. During the course of cross-examination, he deposed before this
Court that Gunja Chintayya and his wife are known to him since 1998 as
Chintayya is his colleague and that they sold out the plaint schedule property in 2003 and it was registered at the Sub-registrar Office,
Chittivanipalem and that after completion of his Intermediate, this witness joined and completed ITI and also deposed that he do not know how Chintayya and Nagendramma got the plaint schedule property, but deposed that he signed on Ex.A2 as an attestor and further deposed that he never visited the plaint schedule property and do not know about the
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PSCJC/GWK 16 background history of the plaint schedule property and signed only on
Ex.A2 as an attestor and he has no further knowledge as to who has been in possession and enjoyment of the plaint schedule property at present.
18.The aforesaid mentioned contents of the oral evidence let in by plaintiff and other P.Ws.2 to 4 clearly disclose about the execution of
Ex.A2 by P.Ws.2 & 3 jointly in favour of P.W.1 and Ex.A2 is attested by
P.W.4. Ex.A2 is filed before this Court and this Court observed that apart from oral testimony, this plaintiff could able to establish the sale under
Ex.A2 by her. This Court further observed that the defence put up by the defendants was to the effect that they are the absolute owners of property i.e., 1856-A plot at Kanithi Village, Vadlapudi Rehabilitation
Colony Phase-II and that it was obtained by the defendants under married major sons quota of his father Angati Appa Rao vide R-Card
No.93 and that the said plot was allotted to the father of the plaintiff by the time of land acquisition for the establishment of Visakhapatnam
Steel Plant and subsequently defendant No.1 applied for allotment of a plot as the plot allotted was not sufficient to his father and the 1st defendant to live jointly and further it is the contention of the defendant that Special Deputy Collector considering his request vide proceedings
RC No.104/2011/SA/dt. 02-2011 plot No.1856 odd bit situated towards
North of the plot 1856 was allotted and also delivered the possession to 1st defendant. It is pertinent to mention here that at para No.10 instead of mentioning the name of the defendant, in the written statement at para 10 plaintiff is used. Further this Court observed that basing on the said proceedings, defendants started living in the said property. The entire contention of the defendants was to the effect that each plot is
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PSCJC/GWK 17 measuring 107 sq. yards measuring 24 feet X 40 feet and if any excess land is available it is left out without issuing any number to that bit of land and it is later on called as odd bit land and that subsequently when the family of the land loosers become excess and unable to live in the small houses of 107 sq. yards, the Government introduced excess plots to the rehabilitants under the married major sons quota and towards the said quota, plaintiff No.1 by Special Deputy Collector, Land Acquisition,
Visakhapatnam Steel Plant was allotted and that he is in possession and enjoyment of the said property. Here also it is pertinent to mention that defendant again mentioned the name of plaintiff No.1 instead of mentioning defendant, but at stretch of serious reading of entire written statement it can easily be construed and understood that the intention of defendant is that he got the odd bit land but not the plaintiff. But nowhere in the entire written statement, it is mentioned that as per clause No.8 of the patta without taking prior permission from the
Government, no property can be purchased from the said patta holders, but it is pertinent to mention here that Ex.A2 was executed on 04.02.2003 and it is registered. Nowhere the defendants took the defence regarding the said point of clause No.8 and the very validity of purchase of property by the plaintiff regarding suit schedule property is not valid. Hence, this Court is of the view that when there is no pleading there shall not be any evidence to that effect and there shall not be any finding to that effect hence the said acquisition or submission though it is admitted by the witness, cannot be taken in to consideration by this
Court.
19.On careful perusal of Ex.A7 which is addressed by Special
Deputy Collector, Land Acquisition, Steel Plant, Visakhapatnam vide
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PSCJC/GWK 18
R.C.No.255/2011/SA dated .06.2011 addressed to the Inspector of
Police, Gajuwaka P.S., Visakhapatnam City from the office of Special
Deputy Collector, Land Acquisition, Steel Plant, Visakhapatnam wherein the subject matter was mentioned as Rehabilitation - Rehabilitation
Colony, Vadlapudi allotment of house site plots for beneficiaries request to settle the dispute of rehabilitation colony sites – report – regarding.
Reference shows about petition No.356/2011 dated 31.03.2011 regarding reception cell Inspector of Police, Gajuwaka and notice vide
R.C.No.255/2011/SA dated 25.04.2011. The said Ex.A7 appears for this
Court to be a crucial document in order to establish the title of the plaintiff and plaintiff could able to exhibit Ex.A7 which categorically shows that she is the absolute owner of the suit schedule property regarding plot Nos.1854, 1855 and 1856 and that there is a dispute for the plot No.1856 of Vadlapudi R.H. Colony between Likithapudi Shyama
Kumari and Sausarla Sanyasamma and that after verifying the entire records of R-Card holders, it is found that said Sanyasamma has not been allotted any plot and plot numbers 1855, 1854 and 1856 were allotted to Kundrapu Dharma Rao, S/o Appanna, Kundrapu Mutyalayya,
S/o Mutyalu, Kundrapu Pydi Naidu, S/o Appanna were the R-Card holders from whom the said Likithapudi Shyama Kumari purchased the property and that she is the original owner of the said plots. These are the names taken by P.W.2 in his cross-examination that Kundrapu Dharma Rao, K.
Musalayya, K. Pydi Naidu were the persons from whom P.Ws.2 & 3 purchased the property and then resold it to P.W.1. As such, this Court is under the view that suit schedule properties are the properties of the plaintiff. As far as the boundaries are concerned, Ex.A8 which is pertaining to 1855 plot number regarding phase-II is bounded by
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PSCJC/GWK 19
North : plot No.1856, East : Road, South : plot No.1854, West : plot
No.1844. Even Ex. A9, it is pertaining to plot No.1856 which shows that it is within the Phase-II towards North there is 24 feet road, towards
East : there is road and towards South : plot No.1855 and towards West :
Plot No.1843 is available. The contention of the defendants is to the effect that for 1856 plot, the northern boundary of 1856 plot number is odd bit vide plot bearing No.1856-A. But these two R-Cards which are pertaining to 1855 and 1856, did not show the odd bit plot No.1856-A.
20.In order to prove his contention that towards North on plot
No.1856, there is odd bit plot No.1856-A, it is for the defendants to establish the same. It is pertinent to mention here that the present suit is filed by the plaintiff praying this Court to declare the plaintiff as absolute owner of the suit schedule property regarding plots three in number but defendants went on taking the defence that odd bit is allotted to them and that they are absolute owners of same.
Surprisingly, the R.C.No.104/2011/SA/dated .02.2011 i.e., Ex.B1 is filed and this Court observed that it is an order from the office of Special
Grade Deputy Collector, Steel Plant, Land Acquisition, Visakhapatnam that Sri. Angati Krishna, S/o late Angati Appa Rao who is married major son of R- Card holder Angati Appa Rao, S/o Sanyasi with R-card number 93 of Kanithi Village while using their dwelling house and equitable land their parents were issued R-card and one house site plot bearing No.107 sq. yards under displaced persons quota in Vadlapudi R.H. Colony and requested to allot house plot under married major son quota and that the matter has been examined in detail and considered on humanitarian grounds and that it is hereby ordered sympathetically to allot the house plot to the applicant under married major son of R-Card holder as
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PSCJC/GWK 20 detailed below and name of the R-Card holders son is Angati Kirshna, S/o late Appa Rao and father R-Card No. is 93 of Kanithi Village and plot number allotted is 1856-A measuring 107 sq. yards and name of rehabilitation colony is Sector – II and towards North there is 24 feet road towards East 24 feet road towards South plot no.1856 is existing and towards West plot No.1843-A is existing. When Ex.B1 clearly explains about the plot No.1856-A regarding 107 sq. yards is allotted to the defendant, this Court is of the view that when the defendant contends by way of his written statement that for allotment of plots, 107 sq. yards is allotted towards each plot and if any excess land is available it is left out without issuing any number to that bit of land and that subsequently when the family of land loosers are unable to live in the small house of 107 sq. yards excess plot will be allotted to rehabilitants under married major sons quota and under the married major sons quota, Steel Plant Authorities allotted odd bit to the applicant i.e., the defendants herein. On careful perusal of the entire Ex.B1 this Court could not find any recital to that effect that the so called odd bit is allotted to the defendant. This Court also observed that nowhere, in
Ex.B3, after filing of the suit, it appears that said Ex.B3 is produced
before this Court which is nothing but property house tax pass book,
whereas all the electricity bills and etc., which are filed by the defendants under Exs.B1 to B5 disclose about the tax book and tax receipt and as mentioned supra about Ex.B1 and Ex.B5 are nothing but orders issued by Mandal Revenue Officer allotting lands to the landless poor vide RC 5/2013 and this Court observed that the contention of the plaintiff is that the defendants are trying to usurp the property of the plaintiff. Whereas it is the contention of the defendants that their
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PSCJC/GWK 21 property is the boundary line to 1856 plot number vide bearing plot
No.1856-A is allotted to them under Ex.B1. But when the defendants themselves through their written statement deposed that odd bits are allotted to the applicants under married major sons quota, nowhere the defendants could able to establish the boundaries. The defendants did not even mention about the boundaries allotted to 1856-A property alleged to have been allotted to them. This Court is also of the view that when the plaintiff could able to establish her title under the guise of
Exs.A1 & A2 and all their documents much particularly, the evidence of
P.Ws.1 to 4, she could able to establish that she is the absolute owner of the suit schedule property, this Court intends to consider her plea. As far as the boundaries concerned, it is for the defendant who has to prove that 1856-A is northern boundary for 1856 plot, but defendant could not able to establish the same, as such this Court is of the view that defendant miserably failed in proving the issue No.1 in his favour and plaintiff could able to establish her plea regarding her title, possession, enjoyment over the suit schedule property. This Court observed that defendant did not choose to mention the boundaries of the plot alleged to have been allotted to him and the cross-examination of D.W.1 was to the effect that by the date of allotment of plot under Ex.B1 i.e., D.W.1/ 1st defendant is a job holder at APEPDCL and under these circumstances, this Court is of the view that defendant miserably failed in establishing his defence. The evidence of D.W.2 who is none other than the alleged friend of defendant No.1, D. Srinivas and he deposed before this Court towards his chief examination that defendant No.1 was allotted with plot measuring 107 sq. yards by linear measurements of 24 feet X 40 feet and during the course of his cross-examination, this witness deposed
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PSCJC/GWK 22 that he has no knowledge about the issuance of R-Card to the father of 1st defendant and did not even know the details of the said R-Card and other particulars and as he is not the family member of the defendant and further deposed that he has no knowledge about plot No.1856-A and has no knowledge whether he is paying property tax or otherwise and further it is added by the witness that he is just a friend occasionally he goes to the house of D.W.1 but has no knowledge about any details regarding his properties and further deposed that he has no knowledge that the plaintiff in this suit personally, but he knows the plaintiff through her husband by name Sri Rama Murthy and further deposed that 1st defendant informed him that he was issued a plot under married major sons quota and that he was present for some time at the time of construction and that he do not know rest of the particulars of the said plot and also deposed that he has no knowledge even about the boundaries of the same. As such, this Court is of the view that evidence of D.W.2 could not help the defendant in establishing the boundaries.
Advocate Commissioner was also examined as D.W.3 by the defendants and the Advocate Commissioner warrant and report are marked as
Exs.B6 & B7 and warrant of Advocate Commissioner is Ex.B6 and per the warrant he is directed to note down the physical features of the property but surprisingly this Advocate Commissioner went beyond the scope of the warrant of Advocate Commissioner and he went even to the extent of measuring the properties of both the parties. This Court is of the view that the Advocate Commissioner was directed under Ex.B6 only to note down physical features but not to measure the property but some how being Senior Advocate of the Gajuwaka Bar Association, this Advocate
Commissioner felt it necessary by even answering the work memos
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PSCJC/GWK 23 wherein it was asked the Advocate Commissioner to measure the schedule property and to measure plots and surprisingly this Advocate
Commissioner/D.W.3 went on measuring the property which is beyond the scope of Ex.B6 Advocate Commissioner warrant. The cross- examination of this D.W.3 is concerned, this witness categorically deposed that the land in which 1856 is situated is started from 1850 and ended with 1856 plot and as such basing on the approved layout he came to the said conclusion. This Court is of the view that the very evidence of D.W.3 is of no use so also the advocate Commissioner’s report, as it is beyond the scope of the warrant. This Court is of the view that issue No.1 is answered against the defendant on whom the burden lies to establish the same and issue No.2 is decided in favour of the plaintiff.
I S S U E No.3:
Whether plaintiff is entitled to get the decree passed for
declaration of his title and consequential permanent
injunction against defendants as prayed for or not?
21.In view of the findings of this Court in issues 1 & 2, mentioned supra in detail, this Court is of the view that plaintiff is absolute owner of the suit schedule property and she is entitled for declaration of her title and as far as the consequential permanent injunction is concerned, this Court observed that the defendants did not even choose to cross-examine the P.Ws.1 to 4 with regard to disturbing the possession of the plaintiff over the suit schedule property and unchallenged testimony with regard to P.W.1 regarding permanent injunction is concerned, this Court is of the view that the unchallenged testimony of P.W.1 regarding their alleged attack over the plaintiff’s peaceful possession and enjoyment of the suit schedule property.
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PSCJC/GWK 24
Hence, this Court intends to grant permanent injunction in favour of the plaintiff and against the defendants. Hence, this issue is answered in favour of the plaintiff.
I S S U E No.4:
To what relief?
22.In the result, suit is decreed with costs by declaring that the plaintiff is the absolute owner of the plaint schedule property and further grants permanent injunction restraining the defendants, their men and servants from ever interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property.
Dictated to the Stenographer Gr.II, transcribed by her, corrected and
pronounced by me in open Court, this the 14 th day of September,
2023.
Sd/- Smt. N. Srividya,
PRINCIPAL SENIOR CIVIL JUDGE,
GAJUWAKA.
APPENDIX OF EVIDENCE
Witnesses examined for
Plaintiff :- Defendants :-
P.W.1 : L. Shyama KumariD.W.1 : Angati Krishna P.W.2 : Gunja ChintayyaD.W.2 : D. Srinivasu P.W.3 : Gunja NagendrammaD.W.3 : M. Parvatheesam P.W.4 : TDAI Satyanarayana
Exhibits marked for :-
Plaintiff :-
Ex.A.1 : Original registered sale deed executed in favour of G. Nagendramma dated 01.10.2001
Ex.A.2 : Original registered sale deed executed in favour of P.W.1
dated 04.02.2003
Ex.A.3 : Original property tax pass book issued in favour of P.W.1 for the house bearing D.No.28-63-4/5 of Vadlapudi
Ex.A.4 : Original Municipal Tax and Water Tax receipts (2 in number)
dated 13.06.2016
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PSCJC/GWK 25
Ex.A.5 : Original encumbrance certificate obtained through Mee-seva
dated 26.09.2016
Ex.A.6 : One positive photograph without corresponding negative or C.D
Ex.A.7 :Letter issued by Special Grade Deputy Collector, Steel Plant, Visakhapatnam dated -06-2011
Ex.A.8 :Patta issued by Steel Plant Authorities for plot No.1854 dated 15.05.2001
Ex.A.9 :Patta issued by Steel Plant Authorities for plot No.1855 dated 15.05.2001
Ex.A10:Office copy of registered legal notice issued by plaintiff under Section 80 of C.P.C dated 19.04.2016
Ex.A11:Office copy of registered legal notice issued by plaintiff for protest petition dated 20.06.2016
Ex.A12:Office copy of registered legal notice issued by plaintiff to the defendants dated 20.06.2016
Ex.A13:Two (2) Municipal tax and water tax receipts for the year 2017-18 dated 09.06.2018
Defendants :-
Ex.B.1 :Order in RC No.104/2011/SA/Special Grade Deputy Collector, Steel Plant, Visakhapatnam dated 28.02.2011
Ex.B.2 :Tax receipt issued by Greater Visakhapatnam Municipal Corporation
Ex.B.3 :Tax pass book for D.No.28-61-1/5, Vadlapudi
Ex.B.4 :Acknowledgment issued by customer service centre, Gajuwaka of Eastern Power Distribution Company for the month of August, 2011 along with electricity bill
Ex.B.5 :Order issued by Mandal Revenue Officer allotting land to the landless poor vide RC No.5/2013
Ex.B.6 :Advocate Commissioner’s warrant received by Sri. M. Parvateesam
Ex.B.7 :Report submitted by Sri. M. Parvateesam along with its enclosures
Sd/- Smt. N. Srividya,
PRINCIPAL SENIOR CIVIL JUDGE,
GAJUWAKA.