O.S.91/2008/VIII ADJ/GWK
IN THE COURT OF THE VIII ADDL.DISTRICT JUDGE :: AT GAJUWAKA
PRESENT: Sri N.SRINIVASA RAO XIII Addl. District Judge, FAC: VIII Addl. District Judge,
GAJUWAKA
Thursday, this the 18th day of August, 2016
O.S.No.91/2008
Between: 1.Akula Alivelu Manga Tayaru, w/o Srinivas Rao, Hindu, aged 35 years, r/at Sagar Vihar Apartment, Visakhapatnam – 530 002. 2.Jakkana Amareswari, w/o Simhadri Appadu, Hindu, aged 32 years, r/at Kallepalli Village, L. Kota Mandal, Vizianagaram District.
3.Kasireddi Srilaxmi, d/o K. China Venkata Rao, Hindu, aged 30 years, r/at D.No.26-14-265, Velampeta, Visakhapatnam-1 (Died) 4.Kasireddi Uma Rajeswari, d/o K.China Venkata Rao, Hindu, aged 27 years, r/at rest -do- 5.Kasireddi Varalakshmi, w/o K. China Venkata Rao, Hindu, aged 59 years, r/at D.No.26-14-265, Velampeta, Visakhapatnam – 1. (Amended as per orders in IA No.1458/09, dt. 02.03.2010 being legal representative of 3rd plaintiff) (Plaintiffs are being represented by General Power of Attorney Holder 5th plaintiff herein)
...Plaintiffs
And: 1.Akula Kusuma Rani, w/o A. Satya Jaya Prakash, Hindu, aged about 35 years, r/at Side by D.No.13-7-10, Opp. Parameswari Traders, B.C. Road, Gajuwaka, Visakhapatnam – 26. 2.Thota Papayyamma, w/o Apparao, Hindu, aged about 45 years, Labour, r/at rest -do- 3.Cheeramdasu China Talli, w/o late Appanna, Hindu, aged about 65 years, r/at rest -do- 4.Kavali Rambabu, s/o Sanyasi, Hindu, aged about 43 years, r/at rest -do- 5.Kasireddi Suryakantham, w/o late Suryanarayana Rao, Hindu, aged about 69 years, r/o D.No.26-14-193, Velampeta, Visakhapatnam – 530 001.
…..Defendants
This suit has come up on 01-08-2016 for final hearing before me in the presence of M/s. G. Ananda Kumar & L.V. Raja Rao, Advocates for the plaintiffs and of Sri R.V.N., Advocate for the Defendants 1 to 4 and of Sri N. Sanni Babu, Advocate for 5th Defendant and the matter having stood over till this day for consideration till this day, this Court delivered the following:
J U D G M E N T
One Kasireddi Varalaxmi who is General Power of Attorney Holder of plaintiffs 1 to 4 has been instituted the suit seeking relief of
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declaration that the plaintiffs are having right, title and interest over the 'B' schedule property and consequential relief of recovery of possession of 'B' schedule property by effecting defendants 1 to 4 and their men including agents from 'B' schedule property after demolishing and removing the structures thereon, either permanent or temporary in nature.
2. During the pendency of the trial, 3rd plaintiff K.Srilakshmi died and Kasireddi Varalakshmi who is a General Power of Attorney Holder is added as legal representative of 3rd plaintiff Kasireddi Srilakshmi.
3. Brief averments made in the plaint as mentioned below :
(a) All plaintiffs are absolute owners of 800sq.yds., of land situated in S.Nos.54, 168, 185 correlated to RS 86 covered by TD No.22 of
Gajuwaka village which is now within the limits of GVMC,
Visakhapatnam. The plaintiffs got 'A' schedule property i.e., an extent of 800sq.yds., under a Will dated 08.03.1986 executed by one Kasireddi
Suryanarayana Rao who is the plaintiffs' junior paternal grandfather.
The plaint 'A' schedule property is part of the land of 3000sq.yds., situated in above survey numbers. Originally, Kasireddi Suryanarayana
Rao has purchased 3000sq.yds., of site from one A.V.Bhanoji Rao for valuable consideration under registered sale deed, dt.19.11.1965 and since then he has been in possession and enjoyment of the total extent of the land till his last breath. The said Suryanarayana Rao, during his life time, in 1979 got declaration that he was entitled to patta for the entire land of 3000sq.yds., vide proceedings No.A.I.A.0.6/76/D/ 19.01.1971 issued by the then Special Deputy Tahsildar, Visakhapatnam and he paid necessary taxes to the authorities during his life time. The
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said Kasireddi Satyanarayana Rao is no other than the husband of 5th defendant. Suryanarayana Rao and 5th defendant Suryakantham has no issues and they adopted the grand son of Kasireddi Venkata Ramana who is no other than the brother of Suryanarayana Rao. Suryanarayana
Rao fostered the present plaintiffs who are the grand daughters of
Kasireddi Yerrayya @Chitti Babu who is a brother of Suryanarayana Rao since he had female issues. The said Kasireddi Suryanarayana Rao executed a Will, dt. 08.03.1986 in favour of plaintiffs 1 to 4, out of love and affection towards them. The entire family members and all the four brothers of Suryanarayana Rao lived jointly till 1982. There are some immovable properties in and around Visakhapatnam city kept jointly without partition of the same among the heirs of Suryanarayana Rao and his three brothers.
(b) The said Kasireddi Suryanarayana Rao died on 13.01.2000.
The plaintiffs being legatees under the Will and they become owners of the plaint 'A' schedule property i.e., an extent of 800sq.yds. 800sq.yds., of site is located East corner of 3000sq.yds of land. In April, 2005, 'A' schedule property got measured and showed by the 5th defendant herein in the presence of family members and fixing the boundaries.
The plaintiffs are in peaceful possession and enjoyment of the 'A' schedule property exclusively and they constructed a wall for 6ft on the
West of schedule property in order to protect the enjoyment and illegal occupation and there are compound of 4ft walls on other three sides.
(c) Defendants 1 to 4 illegally and high handedly occupied 'B' schedule property i.e., an extent of 300sq.yds., of site as clearly mentioned A, B, C, D in the rough sketch and constructed the houses
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and same structures meant for their residence in the schedule property and each defendant occupied 75sq.yds., of site i.e., located on the
Eastern side of the total extent of 800sq.yds. The plaintiffs are residing away from the suit schedule property and taking advantage of their absence, the defendants occupied the respective portions as mentioned in the rough sketch and the first portion occupied by 1st defendant, second portion occupied by 2nd defendant, third portion occupied by 3rd defendant and fourth portion occupied by 4th defendant. It is further contended that Defendants 1 to 4 encroached the 'B' schedule property for the convenience of the 5th defendant in order to evict defendants 1 to 4 from part of the suit schedule property in OS 30/03. Indeed, 5th defendant has been filed a civil suit in OS 30/03 on the file of Senior Civil
Judge, Gajuwaka against defendants 1 to 4 herein and some others for
recovery of the possession and the piece of different immovable properties from defendants 1 to 4 which is a small piece of land in total extent of 3000sq.yds and the suit is pending. The defendants 1 to 4 examined PW5 to 8 in OS 30/03. The 5th defendant has no right or title over the suit schedule property which was bequeathed by all plaintiffs.
(d) The plaintiffs constructed four rooms covered with AC sheets on the extreme west of 800sq.yds., of land as shown in the 'A' schedule property in the plinth area of 28.8 each in 2006 which are their possession and enjoyment and the rooms were assessed to the property tax by GVMC and plaintiffs are paying taxes to the said rooms.
(e) K. Varalakshmi who is added as 5th plaintiff in the suit and she is no other than the mother of plaintiffs 1 to 4 and who is a GPA Holder, lodged a complaint on 17.08.2005 in Gajuwaka Police Station for evicting
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defendants 1 to 4 from 'B' schedule property on the instructions of the plaintiffs and she made similar complaint to the concerned police,
Visakhapatnam for necessary action against defendants 1 to 4. The plaintiffs' mother submitted grievance petition on 31.08.2005 to the
District Collector, Visakhapatnam requesting the authority to evict defendants 1 to 4 over 'B' schedule property and handing over the land to the plaintiffs. The District Collector directed MRO, Gajuwaka to take action in this regard. The MRO, Gajuwaka addressed letter dated 28.01.2005 to plaintiffs' mother stating that the unauthorised occupations cannot be recognized or effected at the moment since the entire land in Gajuwaka is in consideration and purview of housing committee. The Gajuwaka police warned the defendants to evict the 'B' schedule property by demolishing the illegal constructions therein.
Defendants 1 to 4 did not care the police officials warning and they were supported by local persons who are politically potential can manage the things. The defendants 1 to 4 are constructing pucca building in 'B' schedule property and they are also trying to alienate the property to third parties and hence, the suit is filed.
4. Defendants 1 to 5 filed their detailed written statements independently and denied all the material allegations in the plaint. The precise pleadings of 1st defendant in the written statement as mentioned below :
(a) The husband of 1st defendant has been filed a civil suit in OS 814/99 on the file of Junior Civil Judge, Gajuwaka against husband of 5th defendant and one Palla Ramayamma for relief of permanent injunction in the suit schedule property which is part and parcel of the plaint
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schedule property in the present suit. The suit was decreed in favour of husband of 1st defendant.
(b) The 5th defendant has been instituted another civil suit in OS 30/03 on the file of Senior Civil Judge, Gajuwaka against husband of 1st defendant and ten others. The husband of the 1st defendant is in abroad and he could not attend the court at Gajuwaka. 5th Defendant approached and requested her that she want to allot an extent of 70sq.yds., on the southern side of the plaint schedule property towards eastern side and she has also agreed to pay an amount of Rs.15,000/- towards house construction expenses. 5th Defendant agreed to execute and sale deed for the above site immediately after clearing house committee issue. Thereupon 1st defendant had informed the proposal of 5th defendant to her husband. The husband of 1st defendant executed the proposal. Thereafter 1st defendant and 5th defendant entered into an agreement in pursuance of their oral understanding. According to the agreement, 1st defendant appeared before the court and filed affidavit stating that the husband of the 1st defendant taken part of the plaint schedule property from the husband of 5th defendant on monthly rental basis along with the defendants 2 to 4 and others and also some others failed to pay rental amounts to the husband of 5th defendant till April, 1996. The 5th defendant's husband evicted the husband of 1st defendant and defendants 2 to 4 and some others over the plaint schedule property. The husband of 1st defendant and defendants 2 to 4 and others were re-occupied the plaint schedule property and resided in the plaint schedule property. Then, 1st defendant and 5th defendant came to an understanding in the presence of elders to allot an extent of 70sq.yds., to 1st defendant on southern side of the plaint schedule
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property at free of cost and also to pay Rs.15,000/- towards construction expenses of the house in the said 70sq.yds. 5th Defendant allotted 70sq.yds., of vacant site to the 1st defendant for construction of the house in the plaint schedule property with free of cost as per the agreement dated 11.05.2005 and also paid an amount of Rs.15,000/- towards construction expenses. Basing on that, 1st defendant shifted from western side room facing to southern side road facing place an extent of 70sq.yds., in plaint schedule property as per the instructions given by her husband and also as per the written agreement, dt.
11.05.2005. 1st Defendant constructed asbestos sheets roofed house in the 70sq.yds., which is part and parcel of the plaint schedule property.
The 1st defendant has been in possession and enjoyment of the part of the plaint schedule property since long time and paying property tax to
GVMC and 1st defendant having electricity service connection to the said house and paying Electricity charges to APEPDC Ltd. The 1st defendant has been residing in plaint schedule property since long time.
The plaint schedule property is a Government land. The Government also passed GO for issuing all pattas after conducting enquiry in the house committee land. The 1st defendant is entitled for the patta for her house she is residing in the plaint schedule property since long time and she is also landless poor person and if she is eligible candidate for obtaining the patta as per the contents of Government Order. The 5th defendant colluded with plaintiffs and hatched upon a plan to cause loss to 1st defendant and defendants 2 to 4 and in order to evict them from the suit schedule property, the present suit is filed and infact the plaintiffs have no right, title over the suit schedule property. The 1st defendant in view of the above pleadings, urged before this court to
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dismiss the suit with exemplary costs as suit is false, frivolous and vexacious to the knowledge of plaintiffs.
5. The precise pleadings of 2nd defendant in the written statement as mentioned below :
(a) The 2nd defendant has been filed a civil suit in OS 813/99 on the file of Junior Civil Judge, Gajuwaka against husband of 5th defendant and one Palla Ramayamma for relief of permanent injunction restraining the husband of 5th defendant and P.Ramayamma from every interfering with the peaceful possession and enjoyment of the plaint schedule property. The plaint schedule property in OS 813/99 is part and parcel of the plaint schedule property in the present suit. The suit was decreed in favour of 2nd defendant.
(b) The 5th defendant has been instituted another civil suit in OS 30/03 on the file of Senior Civil Judge, Gajuwaka against 2nd defendant and ten others. 5th Defendant approached and requested her that she want to allot an extent of 70sq.yds., on the southern side of the plaint schedule property towards eastern side and she has also agreed to pay an amount of Rs.15,000/- towards house construction expenses. 5th
Defendant agreed to execute and sale deed for the above site immediately after clearing house committee issue. Thereupon 2nd defendant had informed the proposal of 5th defendant to her husband.
The 2nd defendant executed the proposal. Thereafter 2nd defendant and 5th defendant entered into an agreement in pursuance of their oral understanding. According to the agreement, 2nd defendant appeared
before the court and filed affidavit stating that the 2nd defendant taken
part of the plaint schedule property from the husband of 5th defendant
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on monthly rental basis along with the defendants 1, 3 & 4 and others and also some others failed to pay rental amounts to the husband of 5th defendant till April, 1996. The 5th defendant's husband evicted the 2nd defendant and defendants 1, 3 & 4 and some others over the plaint schedule property. The 2nd defendant and defendants 1, 3 & 4 and others were re-occupied the plaint schedule property and resided in the plaint schedule property. Then, 2nd defendant and 5th defendant came to an understanding in the presence of elders to allot an extent of 70sq.yds., to 2nd defendant on southern side of the plaint schedule property at free of cost and also to pay Rs.15,000/- towards construction expenses of the house in the said 70sq.yds. 5th Defendant allotted 70sq.yds., of vacant site to the 2nd defendant for construction of the house in the plaint schedule property with free of cost as per the agreement dated 11.05.2005 and also paid an amount of Rs.15,000/- towards construction expenses. Basing on that, 2nd defendant shifted from western side room facing to southern side road facing place an extent of 70sq.yds., in plaint schedule property as per the instructions given by her husband and also as per the written agreement, dt.
11.05.2005. 2nd Defendant constructed asbestos sheets roofed house in the 70sq.yds., which is part and parcel of the plaint schedule property.
The 2nd defendant has been in possession and enjoyment of the part of the plaint schedule property since long time and paying property tax to
GVMC and 2nd defendant having electricity service connection to the said house and paying Electricity charges to APEPDC Ltd. The 2nd defendant has been residing in plaint schedule property since long time.
The plaint schedule property is a Government land. The Government also passed GO for issuing all pattas after conducting enquiry in the
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house committee land. The 2nd defendant is entitled for the patta for her house she is residing in the plaint schedule property since long time and she is also landless poor person and if she is eligible candidate for obtaining the patta as per the contents of Government Order. The 5th defendant colluded with plaintiffs and hatched upon a plan to cause loss to 2nd defendant and defendants 1, 3 & 4 and in order to evict them from the suit schedule property, the present suit is filed and infact the plaintiffs have no right, title over the suit schedule property. The 2nd defendant in view of the above pleadings, urged before this court to dismiss the suit with exemplary costs as suit is false, frivolous and vexacious to the knowledge of plaintiffs.
6. 3rd Defendant in her written statement, inter-alia, contended that :
(a) She filed a civil suit in OS 811/99 on the file of Junior Civil
Judge, Gajuwaka against husband of 5th defendant and one Palla
Ramayamma for relief of permanent injunction restraining the husband of 5th defendant and P.Ramayamma from every interfering with the peaceful possession and enjoyment of the plaint schedule property. The plaint schedule property in OS 811/99 is part and parcel of the plaint schedule property in the present suit. The suit was decreed in favour of 3rd defendant.
(b) The 5th defendant has been instituted another civil suit in OS 30/03 on the file of Senior Civil Judge, Gajuwaka against 3rd defendant and ten others. 5th Defendant approached and requested her that she want to allot an extent of 70sq.yds., on the southern side of the plaint schedule property towards eastern side and she has also agreed to pay
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an amount of Rs.15,000/- towards house construction expenses. 5th
Defendant agreed to execute and sale deed for the above site immediately after clearing house committee issue. Thereupon 3rd defendant had informed the proposal of 5th defendant to her husband.
The 3rd defendant executed the proposal. Thereafter 3rd defendant and 5th defendant entered into an agreement in pursuance of their oral understanding. According to the agreement, 3rd defendant appeared
before the court and filed affidavit stating that the 3rd defendant taken
part of the plaint schedule property from the husband of 5th defendant on monthly rental basis along with the defendants 1, 2, & 4 and others and also some others failed to pay rental amounts to the husband of 5th defendant till April, 1996. The 5th defendant's husband evicted the 3rd defendant and defendants 1, 2 & 4 and some others over the plaint schedule property. The 3rd defendant and defendants 1, 2 & 4 and others were re-occupied the plaint schedule property and resided in the plaint schedule property. Then, 3rd defendant and 5th defendant came to an understanding in the presence of elders to allot an extent of 70sq.yds., to 3rd defendant on southern side of the plaint schedule property at free of cost and also to pay Rs.15,000/- towards construction expenses of the house in the said 70sq.yds. 5th Defendant allotted 70sq.yds., of vacant site to the 3rd defendant for construction of the house in the plaint schedule property with free of cost as per the agreement dated 11.05.2005 and also paid an amount of Rs.15,000/- towards construction expenses. Basing on that, 3rd defendant shifted from western side room facing to southern side road facing place an extent of 70sq.yds., in plaint schedule property as per the instructions given by her husband and also as per the written agreement, dt.
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11.05.2005. 3rd Defendant constructed asbestos sheets roofed house in the 70sq.yds., which is part and parcel of the plaint schedule property.
The 3rd defendant has been in possession and enjoyment of the part of the plaint schedule property since long time and paying property tax to
GVMC and 3rd defendant having electricity service connection to the said house and paying Electricity charges to APEPDC Ltd. The 3rd defendant has been residing in plaint schedule property since long time.
The plaint schedule property is a Government land. The Government also passed GO for issuing all pattas after conducting enquiry in the house committee land. The 3rd defendant is entitled for the patta for her house she is residing in the plaint schedule property since long time and she is also landless poor person and if she is eligible candidate for obtaining the patta as per the contents of Government Order. The 5th defendant colluded with plaintiffs and hatched upon a plan to cause loss to 3rd defendant and defendants 1, 2 & 4 and in order to evict them from the suit schedule property, the present suit is filed and infact the plaintiffs have no right, title over the suit schedule property. The 3rd defendant in view of the above pleadings, urged before this court to dismiss the suit with exemplary costs as suit is false, frivolous and vexacious to the knowledge of plaintiffs.
7. 4th Defendant in his written statement, inter-alia, contended that he filed a civil suit in OS 816/99 on the file of Junior Civil Judge,
Gajuwaka against husband of 5th defendant and one Palla Ramayamma for relief of permanent injunction restraining the husband of 5th defendant and P.Ramayamma from every interfering with the peaceful possession and enjoyment of the plaint schedule property. The plaint schedule property in OS 816/99 is part and parcel of the plaint schedule
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property in the present suit. The suit was decreed in favour of 4th defendant.
(b) The 5th defendant has been instituted another civil suit in OS 30/03 on the file of Senior Civil Judge, Gajuwaka against 4th defendant and ten others. 5th Defendant approached and requested him that she want to allot an extent of 70sq.yds., on the southern side of the plaint schedule property towards eastern side and he has also agreed to pay an amount of Rs.15,000/- towards house construction expenses. 5th
Defendant agreed to execute and sale deed for the above site immediately after clearing house committee issue. Thereupon 4th defendant had informed the proposal of 5th defendant to her husband.
The 4th defendant executed the proposal. Thereafter 4th defendant and 5th defendant entered into an agreement in pursuance of their oral understanding. According to the agreement, 4th defendant appeared
before the court and filed affidavit stating that the 4th defendant taken
part of the plaint schedule property from the husband of 5th defendant on monthly rental basis along with the defendants 1 to 3 and others and also some others failed to pay rental amounts to the husband of 5th defendant till April, 1996. The 5th defendant's husband evicted the 4th defendant and defendants 1 to 3 and some others over the plaint schedule property. The 4th defendant and defendants 1 to 3 and others were re-occupied the plaint schedule property and resided in the plaint schedule property. Then, 4th defendant and 5th defendant came to an understanding in the presence of elders to allot an extent of 70sq.yds., to 4th defendant on southern side of the plaint schedule property at free of cost and also to pay Rs.15,000/- towards construction expenses of the house in the said 70sq.yds. 5th Defendant allotted 70sq.yds., of vacant
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site to the 4th defendant for construction of the house in the plaint schedule property with free of cost as per the agreement dated 11.05.2005 and also paid an amount of Rs.15,000/- towards construction expenses. Basing on that, 4th defendant shifted from western side room facing to southern side road facing place an extent of 70sq.yds., in plaint schedule property as per the instructions given by her husband and also as per the written agreement, dt. 11.05.2005. 4th Defendant constructed asbestos sheets roofed house in the 70sq.yds., which is part and parcel of the plaint schedule property. The 4th defendant has been in possession and enjoyment of the part of the plaint schedule property since long time and paying property tax to GVMC and 4th defendant having electricity service connection to the said house and paying
Electricity charges to APEPDC Ltd. The 4th defendant has been residing in plaint schedule property since long time. The plaint schedule property is a Government land. The Government also passed GO for issuing all pattas after conducting enquiry in the house committee land. The 4th defendant is entitled for the patta for his house he is residing in the plaint schedule property since long time and he is also landless poor person and if he is eligible candidate for obtaining the patta as per the contents of Government Order. The 5th defendant colluded with plaintiffs and hatched upon a plan to cause loss to 4th defendant and defendants 1 to 3 and in order to evict them from the suit schedule property, the present suit is filed and infact the plaintiffs have no right, title over the suit schedule property. The 4th defendant in view of the above pleadings, urged before this court to dismiss the suit with exemplary costs as suit is false, frivolous and vexacious to the knowledge of plaintiffs.
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8. 5th Defendant who is no other than the wife of Kasireddi
Suryanarayana Rao filed a separate written statement, inter-alia, contended that,
(a) Her K. Suryanarayana Rao purchased an extent of 3000sq.yds from A.V.Bhanoji Rao under registered sale deed, dt. 19.11.1965 and since then her husband was in possession and enjoyment of the entire extent of land till his death. She also admitted that the patta was granted in favour of her husband Suryanarayana Rao under the Inams
Abolition Act, 1956 by the competent authority in 1979 in respect of the land covered under the registered sale deed, dt. 19.11.1965. The defendant denied the fact that her husband fostered all the plaintiffs since he has no male issues and executed a Will dated 08.03.1986 in favour of the plaintiffs out of love and affection towards them. She admitted that her husband and three brothers lived jointly till 1982 and having immovable properties in and around Visakhapatnam city. The entire property of Kasireddi family was orally partitioned during the life time of K. Suryanarayana Rao except the property covered under sale deed dated 19.11.1965 as there was dispute in the entire land in
Gajuwaka. The plaintiffs are not entitled for any right over the suit schedule property as they are the legatees under the Will. The plaintiffs are never in possession and enjoyment over the plaint 'A' schedule property at any point of time.
(b) It is further contended that Kasireddi Suryanarayana Rao purchased an extent of 3000sq.yds consisting of eight plots in S.No.84, 168, 185 correlated to RS 86 covered by TD 22 of Gajuwaka Village under document No.3227/65 for valuable consideration and
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subsequently after due enquiry a rythwari patta was granted in favour of her father by the Special Deputy Tahsildar, Visakhapatnam by its order
dated 19.01.1979 and he was in possession and enjoyment thereon till
his death by paying tax to the concerned authorities and after his death the 5th defendant is in possession and enjoyment thereon by paying the tax to the concerned authorities.
(c) It is further contended that at the time of establishment of
Steel Plant and several industries nearer to the property as such,
Kasireddi Suryanarayana Rao in order to protect the property from the trespassers and accepted the requests of some persons who are shown as defendants 1 to 8 in OS 30/08 on the file of Senior Civil Judge's Court, at Gajuwaka and permitted them to utilize a small bids in the part of the land on the margin of Balacheruvu road and accordingly, they constructed small nuts and thatched by paying land revenue. The
Government issued orders on the recognition of the house committee to regularise upto 100sq.yds., in Gajuwaka village with free of cost and defendants 1 to 8 in OS 30/03 are making hectic efforts to regularise the said estate in which they are residing and avoid payment of rent to landlord and they are trying to alienate the said site to third parties and as there is no option except to file a civil suit in OS 30/03 by this defendant against eight individual persons including District Collector,
RDO and MRO, Gajuwaka on the file of Senior Civil Judge for evicting the defendants 1 to 8 and handover the possession and for consequential permanent injunction restraining the defendants 1 to 8 from enjoying heir occupation or create a charge by alienating suit schedule property and for consequential permanent injunction restraining the defendants 9 to 11 from regularising the occupation of defendants 1 to 8 of suit
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schedule property in OS 30/03 and the suit is pending. The defendant and her husband have no issues and as such, they adopted one boy by name K.Appalaswamy and his name was recorded in all the school records as he is son of Kasireddi Suryanarayana Rao and he is looking after the affairs of this defendant and her husband. The late K.
Suryanarayana Rao never fostered the plaintiffs and he did not execute any Will, dt. 08.03.1986 and the Will is rank forged one and the signature in the alleged Will does not belong to the husband of this defendant and it cannot be acted upon and as such, the plaintiffs cannot claim right over the suit schedule property.
(d) The defendant also stoutly denied that at the instance of this defendant, defendants 1 to 4 herein illegally and high handedly occupied the 'B' schedule property and constructed the houses for the convenience of this defendant. plaintiffs with collusion with defendants 1 to 4 in order to grab the valuable property of this defendant and
Kasireddy Varalakshmi who is representing as GPA Holder to look after the plaintiffs who is leading and she is being managed the property tax and paying tax on the forged Will behind back of the plaintiffs and the assessment in the Municipal records does not create any title to the property and no rights will be conferred to the plaintiffs. The power of
Attorney said to have been executed by plaintiffs in favour of their mother Kasireddi Varalakshmi was not supplied to this defendant. In view of the above pleadings, she urged before this court to dismiss the suit with exemplary costs.
9. On the strength of the above pleadings, the following Issues are framed for settlement of trial on 28.06.2011 :
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1).Whether plaintiffs 1 to 4 are the fostered daughters of Sri
K.Suryanarayana?
2).Whether the plaintiffs 1 to 4 became absolute owners of the
'B' schedule property under the Will deed dt. 08.03.1986
executed by K.Suryanarayana?
3).Whether the Will deed dated 08.03.1986 is true, valid,
enforceable and binding on the defendants?
4).Whether the plaintiffs 1 to 4 are entitled for declaration of
title and for recovery of possession relating to suit 'B' schedule
property?
5).Whether defendants 1 to 4 are in collusion with Defendant
No.5?
6).To what relief?
10. During the course of trial, P.W.1 & P.W.2 were examined and
Exs.A.1 to A.6 were marked on behalf of the plaintiff. On behalf of defendant, DW.1 to DW4 were examined and Exs.B.1 to B.13 were marked. During the course of trial, PW3 did not appear before the court.
The learned predecessor of this court endorsed on 17.12.2014 that PW3 was absent continuously and hence, the chief examination of PW3 is eschewed. The plaintiff has not taken any legal steps to examine PW3 after 17.12.2014.
11. Before answering the above issues, it is opt to note the genealogy or pedigree of relationship in between the plaintiffs and their paternal grandfathers is as follows :
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12. Admittedly, there is no dispute relating to the relationship in between the parties.
13.Issue No.1 : The specific case of the plaintiffs is that they are the grandchildren of Kasireddi Yerrayya @ Chittibabu who is no other than the brother of Kasireddi Suryanarayana Rao. Kasireddi
Suryanarayana Rao is no other than the husband of 5th defendant and they had no issues. Kasireddi Suryanarayana Rao developed love and affection and he treated the plaintiffs as his 'abhimana putrikalu' and they are the fostered daughters of Kasireddi Suryanarayana Rao. The said fact is denied by DW1 in her chief examination. DW1 categorically stated that her husband never executed any Will and he never treated the plaintiffs as his fostered daughters. PW1 in her cross-examination, she stated that the testator to the alleged Will never paid any school fees to his daughters i.e., plaintiffs. If the case of the plaintiffs to be taken into consideration and if really the testator executed the Will, late
Kasireddi Suryanarayana Rao may pay the school fees and developed affection towards them. But the fact is otherwise. In view of the admission of PW1, it is very clear that Kasireddi Suryanarayana Rao never treated the plaintiffs as his fostered daughters.
Accordingly, the issue is answered negative of the case of plaintiffs.
14.Issue Nos.2 & 3 : Plaintiffs 1, 2 & 4 who are no other than the daughters of PW1. PW1 who obtained the GPA from her daughters and filed her chief affidavit in lieu of the chief examination. PW1 reiterated the contents of plaint in her chief affidavit. Exs.A1 to A6 got marked in chief affidavit of PW1. PW2 K. Jogayya who is one of the
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attestor of Ex.A1 Will and filed his chief affidavit in lieu of the chief examination.
15. It is not in dispute that one K.Suryanarayana Rao who is husband of DW1 purchased an extent of 3000sq.yds of land from
A.V.Bhanoji Rao under registered sale deed, dt. 19.11.1965. It is also not in dispute that 3rd plaintiff K.Srilakshmi died during the pendency of the trial and her mother PW1 was added as legal representative of 3rd plaintiff.
16. Briefly, the case of the plaintiffs is that Kasireddi
Suryanarayana Rao has no issues and he adopted the grandson of one
K.V.Ramana who is no other than his elder brother. It is the case of the plaintiffs that Kasireddi Suryanarayana Rao has no male issues and he fostered the plaintiffs 1, 2 & 4 who are no other than the grand daughters of K.Yerrayya @ Chitti Babu. Sri Yerrayya @ Chitti Babu is no other than the brother of Kasireddi Suryanarayana Rao. The said
Kasireddi Suryanarayana Rao out of love and affection executed Will
dated 08.03.1986 in favour of plaintiffs in respect of the plaint schedule
property and thus, plaintiffs 1 to 4 are the legatees under the Will and became the owners of the plaint 'A' schedule property. 'A' schedule property is located south east corner of 3000sq.yds of land. It is further case of plaintiffs that defendants 1 to 4 with collusion of 5th defendant illegally trespassed and entered into the plaint 'A' schedule property and occupied the land as mentioned 1 to 4 in the rough sketch. They occupied the eastern side of the entire 800sq.yds., of land.
17. On the other hand, 5th defendant filed her chief affidavit in lieu of the chief examination and examined as DW1. Husband of 1st
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defendant is examined as DW2. 3rd Defendant grandson is examined as
DW3. 4th Defendant is examined as DW4.
18. The case of the defendants in brief is that the plaintiffs are not entitled to claim any right over the suit schedule property and indeed
K.Suryanarayana Rao never executed Ex.A1 Will in favour of the plaintiffs. DW2 to 4 stated in their chief affidavits that 5th defendant filed OS 30/03 on the file of Senior Civil Judge, Gajuwaka against defendants 1 to 4 and ten others and at that time 5th defendant requested the defendants 1 to 4 to allot an extent of 70sq.yds., of site on southern side of the plaint schedule property and also agreed to pay an amount of Rs.15,000/- towards consideration. In that connection, the 5th defendant and other defendants executed an agreement dated 11.05.2005 and on the basis of the agreement the defendants filed their affidavits in the suit stating that they are paying the rent to the husband of the 5th defendant. The husband of the 5th defendant evicted defendants 1 to 4 and some others over the schedule property and again all the defendants are occupied the plaint schedule property and they also filed civil suits and obtained injunction against the husband 5th defendant. It is further case of the defendants that 5th defendant and other defendants came to understanding to allot 70sq.yds., to them and also paid cash of Rs.15,000/- towards construction expenses. In the meanwhile, the Government issued the G.O., for which all the defendants are entitled for the patta as per the G.O. It is further case of defendants 1 to 4 that the plaintiffs and 5th defendant colluded with each other and filed this suit under the guise of Ex.A1 document in order to evict defendants 1 to 4.
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19. The plaintiffs mainly relied upon Ex.A1 unregistered Will, dt.
08.03.1986 executed by Kasireddi Suryanarayana Rao in favour of the plaintiffs in respect of plots 81 to 98 in TD No.22, S.No.54, 168, 185 which is located at Gajuwaka. In order to prove the contents of Ex.A1, the plaintiffs mainly relied upon the evidence of PW1 and PW2. PW2 is one of the attestors of Ex.A1 document. Admittedly, plaintiffs 1, 2 & 4 are not examined during the course of trial in order to prove the contents of Ex.A1 unregistered Will. The specific contention of the counsel for defendants is that Ex.A1 never executed by Kasireddi
Suryanarayana Rao at any point of time and it is a forged document and in order to prove the contents of Ex.A1 no one is examined and therefore, Ex.A1 cannot be taken into consideration.
20. PW1 in her chief examination, she stated that plaintiffs are the absolute owners of plaint 'A' schedule property under Ex.A1 Will executed by Kasireddi Suryanarayana Rao. PW2 in his chief affidavit he stated that on the date of third month of 1986 he has received a telephone call from Kasireddi Suryanarayana Rao and informed him that he intended to execute a Will deed bequeathing the properties in favour of grand daughter of his elder brother. Having received the call, he approached to K.Suryanarayana Rao at 6pm and the Will was executed by him at Sub-Registrar Office, near Old Post Office, Visakhapatnam and no rough deed was prepared at that time. He further stated that he himself, PW1, scribe of the Will and another woman brought by
Suryanarayana Rao were present. He further stated that Kasireddi
Suryanarayana Rao out of love and affection towards grandchildren of his elder brother and treated them as 'Abhimana Putrikalu'.
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21. In view of the evidence of PW1 and PW2, crux of the point for consideration is :
Whether the testimony of PW1 and PW2 is sufficient to
prove the execution of Will by Kasireddi Suryanarayana Rao?
22. PW1 in her chief affidavit she categorically stated that plaintiffs 1, 2 & 4 executed a Deed of General Power of Attorney in her favour to file the suit against the defendants. During the course of trial, the GPA deed executed by plaintiffs 1 to 4 not marked on behalf of plaintiffs. PW1 in her cross-examination she stated that she is not a direct party to the suit and she is only a GPA holder and GPA is not registered. She also stated that GPA was executed for filing the suit.
Her lawyer drafted GPA and obtained her signature. The evidence of
PW1 is crystal clear that she is not a beneficiary to the Will. She came to the court in pursuance of GPA executed by her daughters. It is an admitted fact that GPA is not filed by PW1 during the course of trial.
Now I have to see the evidentiary value of PW1 in the absence of GPA executed by her daughters in her favour. In order to answer the above point it is relevant to refer the provision under Order III Rule 1 & 2 CPC empowers the holder of Power of Attorney to 'act' on behalf of the
principal. The word 'acts' employed in Order III Rule 1 & 2 CPC, confines
only in respect of the 'acts' done by the Power of Attorney holder in exercise of the power granted by the instrument. The term 'acts' could not include deposing in place and instead of the principal. In other words, if the power of Attorney holder has rendered some acts in pursuance to the power of attorney, he may depose for the principal in respect of the such acts, but he cannot depose for the principal for the acts done by the principal and not by him. It is relevant to refer the
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decision of Hon'ble High Court of A.P., reported in Kanapudi Bharati
Gudiwada Vs. Authority under Section of A.P. S.E. AUF-cum-
Labour Officer, Machilipatnam 1 wherein the Hon'ble High Court has considered the statutory provision under Rule 2 of Order III CPC and Rule 32 of Civil Rules of Practice and held that “Power of Attorney Holder of a party can appear only as a witness in his personal capacity to speak about the facts which are within his personal knowledge about the case, but, he cannot appear as a witness on behalf of the party in the capacity of that of a party.”
The above decision clearly go to show that the law aspect is very clear PW1 can appear only as a witness in her personal capacity to speak about the facts but she cannot appear as a witness on behalf of the plaintiffs. Admittedly, as I already stated that no Power of Attorney Deed executed by PW1, 2 ad 4 is not filed before the court. The above decision is further clear that she can come to the court and depose as a witness within her knowledge about the case. PW1 in her cross- examination she stated that she was not present at the time of Ex.A1.
Therefore, it is very clear that she has no personal knowledge about the execution of Ex.A1 by Kasireddi Suryanarayana Rao. Therefore, without any hesitation, I hold that in view of the principle of law laid down in the above decision, she is not a competent witness to prove the contents of
Ex.A1 document. The plaintiffs relied upon the testimony of PW2 who is one of the attestors. Admittedly, plaintiffs 1, 2 & 4 who are the beneficiaries or legatees under the Will, not come to the court and depose the contents of the Will and their relationship with late Kasireddi
Suryanarayana Rao. They are the crucial witnesses to prove the 1 1999 (3) ALT 428
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contents of Will. It is settled principle of law laid down in the decision of the Hon'ble Apex Court reported in Vidhyadharan Vs. Manik Rao and another 2 wherein the Hon'ble Apex Court observed that where the party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross-examined by the otherside, a presumption would be arose that the case set up by him is not correct”.
23. In the present case, plaintiffs 1, 2 & 4 are not examined and they did not appear before the court to prove the contents of the Will.
Therefore, there is no opportunity for defendants 1 to 4 to cross-examine them to disprove the contents of Ex.A1 Will. The plaintiffs also failed to produce GPA executed by them in favour of their mother PW1 and therefore, without any hesitation, I hold that non-examination of plaintiffs 1, 2 & 4 and non-filing of the GPA are certainly fatal to case of plaintiff and in the absence of their evidence, there is no evidentiary value to the evidence of PW2. In those circumstances, I hold that the plaintiffs failed to establish the contents of the Will executed by late
Kasireddi Suryanarayana Rao in their favour and in the absence of proof of Will they are not entitled to claim 'A' schedule property as their own.
PW1 in her cross-examination she stated that she can prove the signature found on Ex.A1 Will of Suryanarayana Rao and no boundaries are mentioned in the Will. Admittedly, the plaintiffs have not taken any legal steps to prove the signature of Kasireddi Suryanarayana Rao in
Ex.A1 and also prove the genuineness of the Will. In the absence of taking any steps it cannot be said that Ex.A1 is valid and binding on the defendants.
Accordingly, issues 2 & 3 are answered negative to the 2 1999(3) SCC 573
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case of plaintiffs.
24. Issue No.4 : In issue Nos.2 & 3, this court held that the plaintiffs failed to establish the contents of Ex.A1 Will and as per the case of plaintiffs they are entitled to claim 'A' schedule property under the Will and the Will itself is disbelieved in issues No.2 & 3 and therefore, the plaintiffs are not entitled for declaration of 'A' schedule property and recovery of the possession of 'B' schedule property from defendants 1 to 4.
Accordingly, the issue is answered negative to the case of the plaintiffs.
25. Issue No.5 : Defendant No.5in the suit is no other than the wife of Kasireddi Suryanarayana Rao and she is examined as DW1. In the evidence on record, it is not clear that there is a collusion in between defendants 1 to 4 with 5th defendant.
Accordingly, the issue is answered.
26. Issue No.6 : In view of the discussions mentioned in all the issues, the plaintiffs failed to prove the execution of the Will by
K.Suryanarayana Rao in favour of the plaintiffs.
Accordingly, the suit is dismissed. In the circumstances of the case, each party shall bear their own costs.
Dictated to the Stenographer Gr.II, transcribed by her, corrected
and pronounced by me in open Court, this the 18th day of August, 2016.
XIII ADDL.DISTRICT JUDGE,
FAC : VIII ADDL. DISTRICT JUDGE,
GAJUWAKA
O.S.91/2008/VIII ADJ/GWK
Appendix of Evidence
Number of Witnesses Examined
For Plaintiffs :For Defendants :
P.W.1 : Kasireddy Vara Lakshmi D.W.1 : Kasireddy Surya Kantham P.W.2 : Kannuru JogayyaD.W.2 : Akula Satya Jaya Prakash P.W.3 : Kolla Satya Rao (Eschewed)D.W.3 : Chowdavada Govindu D.W.4 : K. Rambabu
Number of documents marked
For Plaintiffs :
Ex.A.1 : Original unregistered Will, dt. 08.03.1986 executed by K.Suryanarayana Rao in favour of plaintiffs 1 to 4
Ex.A.2 : Original Death Certificate of K.Suryanarayana Rao
Ex.A.3 : Original Tax receipt dt.09.08.2007 issued by GVMC in the name of K.Uma Rajeswari
Ex.A.4 : Original Tax receipt dt.09.08.2007 issued by GVMC in the name of K. Sri Lakshmi
Ex.A.5 : Receipt issued in the name of Amareswari for the payment of House tax
Ex.A.6 : Receipt dt. 17.08.2005 issued by Gajuwaka Police
For Defendants :
Ex.B1 : Certified copy of Judgment in OS 814/99, dt. 12.09.2002 on the file of Jr. Civil Judge, Gajuwaka
Ex.B2 : Certified copy of Decree in OS 814/99, dt. 12.09.2002 on the file of Junior Civil Judge, Gajuwaka
Ex.B3 : Two receipts issued by GVMC
Ex.B4 : Receipt, Demand Notice, two receipts issued by GVMC
Ex.B5 : Two photographs and negatives
Ex.B6 : Certified copy of Judgment in OS 811/99, dt. 11.09.2002 on the file of Jr. Civil Judge, Gajuwaka
Ex.B7 : Certified copy of Decree in OS 811/99, dt. 11.09.2002 on the file of Junior Civil Judge, Gajuwaka
Ex.B8 : Two photographs and negatives
Ex.B9 : Certified copy of Judgment in OS 816/99, dt. 13.09.2002 on the file of Junior Civil Judge, Gajuwaka
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ExB10: Certified copy of Decree in OS 816/99, dt. 13.09.2002 on the file of Junior Civil Judge, Gajuwaka
ExB11: Three receipts issued by GVMC, Electrical bills (4 Nos.)
ExB12: Two receipts issued by GVMC
ExB13: Photographs 4 in No.
XIII ADJ :GAJUWAKA FAC: VIIIADJ/GJWK
O.S.91/2008/VIII ADJ/GWK
Date of Presentation: 05-03-2008Date of Filing: 05-03-2008 Value of the Suit : Rs.11,25,000/-
IN THE COURT OF THE VIII ADDL.DISTRICT JUDGE :: AT GAJUWAKA
PRESENT: Sri N.SRINIVASA RAO XIII Addl. District Judge, FAC: VIII Addl. District Judge,
GAJUWAKA
Thursday, this the 18th day of August, 2016
O.S.No.91/2008
Between: 1.Akula Alivelu Manga Tayaru, w/o Srinivas Rao, Hindu, aged 35 years, r/at Sagar Vihar Apartment, Visakhapatnam – 530 002. 2.Jakkana Amareswari, w/o Simhadri Appadu, Hindu, aged 32 years, r/at Kallepalli Village, L. Kota Mandal, Vizianagaram District.
3.Kasireddi Srilaxmi, d/o K. China Venkata Rao, Hindu, aged 30 years, r/at D.No.26-14-265, Velampeta, Visakhapatnam-1 (Died) 4.Kasireddi Uma Rajeswari, d/o K.China Venkata Rao, Hindu, aged 27 years, r/at rest -do- 5.Kasireddi Varalakshmi, w/o K. China Venkata Rao, Hindu, aged 59 years, r/at D.No.26-14-265, Velampeta, Visakhapatnam – 1. (Amended as per orders in IA No.1458/09, dt. 02.03.2010 being legal representative of 3rd plaintiff) (Plaintiffs are being represented by General Power of Attorney Holder 5th plaintiff herein)
...Plaintiffs
And:
1. Akula Kusuma Rani, w/o A. Satya Jaya Prakash, Hindu, aged about 35 years, r/at Side by D.No.13-7-10, Opp. Parameswari Traders, B.C. Road, Gajuwaka, Visakhapatnam – 26.
2. Thota Papayyamma, w/o Apparao, Hindu, aged about 45 years, Labour, r/at rest -do-
3. Cheeramdasu China Talli, w/o late Appanna, Hindu, aged about 65 years, r/at rest -do-
4. Kavali Rambabu, s/o Sanyasi, Hindu, aged about 43 years, r/at rest -do-
5. Kasireddi Suryakantham, w/o late Suryanarayana Rao, Hindu, aged about 69 years, r/o D.No.26-14-193, Velampeta, Visakhapatnam – 530 001.
…..Defendants
This is a suit filed by the plaintiffs for declaration that the plaintiffs are having right, title and interest over the 'B' schedule property and for consequential relief of recovery of possession of 'B' schedule property by effecting defendants 1 to 4 and their men including agents from 'B' schedule property after demolishing and removing the structures thereon, either permanent or temporary in nature and for costs of the suit.
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The value of the suit for the purpose of Court Fee and jurisdiction is Rs.11,25,000/- and a Court fee of Rs.13,726/- is paid thereon u/Sec.24
(a) r/w Art.1(c) Sch.I of A.P.C.F and S.V. Act.
This suit has come up on 01-08-2016 for final hearing before me in the presence of M/s. G. Ananda Kumar & L.V. Raja Rao, Advocates for the plaintiffs and of Sri R.V.N., Advocate for the Defendants 1 to 4 and of Sri N. Sanni Babu, Advocate for 5th Defendant and the matter having stood over till this day for consideration till this day, this Court doth order and:
D E C R E E
1.that the suit be and the same is hereby dismissed; 2.that each party do bear their own costs.
(Copy of schedule is herewith enclosed)
Given under my hand the seal of this court on this the 18th day of August, 2016.
XIII Addl. District Judge, FAC: VIII Addl. District Judge, Gajuwaka
MEMORANDUM OF COSTS
For Plaintiffs For Defendants 1 to 4
– Nil – – Nil –
For Defendant No.5: Rs. Stamp on Vakalat : 2-00 Commissioner Fee 2,500-00 Advocate fee 10,000-00 --------------- Costs incurred 12,502-00 --------------- (Certified that the decree is drafted in accordance with Judgment) (Administrative Officer, XIII ADC/GJWK)
XIII Addl. District Judge, FAC: VIII Addl. District Judge, Gajuwaka