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IN THE COURT OF V ADDITIONAL SENIOR CIVIL JUDGE:
VIJAYAWADA.
PRESENT: Sri P. Govardhan,
II Addl. Senior Civil Judge, Vijayawada, FAC V Addl. Senior Civil Judge, Vijayawada.
Thursday, dated this the 27th day of February, 2020.
Original Suit No.1204 of 2004
Between:
Governorpet Ansari Park Baddikotla Yajamanula Sankshema Sangham, Vijayawada, Registered No.16/1996, represented by its President, M.Madhusudhana Rao, s/o Venkateswarulu, Hindu, 49 years, Business, Besant Road,
Vijayawada – 2....Plaintiff
and
Vijayawada Municipal Corporation, represented by its Commissioner, Municipal Buildings,
Vijayawada.... Defendant
This suit is coming on this day before me for consideration after hearing on 13.02.2020 in the presence of Sri P.Seshu Mohan, Advocate for Plaintiff and of Sri P.Durga Jhansi Rani, Advocate for Defendant, after hearing and upon perusing the material on record, this Court delivered the following:
J U D G M E N T
Initially the plaintiff represented by its members filed this suit against the Defendant/Vijayawada Municipal Corporation for declaration that the members of the Plaintiff Sangham are legal tenants and sought consequential relief of permanent injunction and independent relief of mandatory injunction. Later, some members were impleaded and accord ingly plaint was amended as per orders in I.A. No.80/2018 and I.As.101 to 104/2010. Accordingly one Chekka Venkata Chenna Kesava Rao was
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added at Sl.No.20 and as per orders in I.A. Nos .101/2010 to 114/2010 some more members were added at Sl.No.3, 5, 6, 8 to 11, 13, 14, 17 to 19 respectively in para No.5 and at relevant places in the plaint. Accord ingly, as per orders of this Court dated 18.12.2018 neat copy of the plaint was filed and amendment was also carried out.
2.The contentions of the plaintiff as seen from the neat copy of the plaint are as follows :
Plaintiff is a society with its registration No.16/1996. Plaintiff soci ety consists of owners of ‘Baddikotlu’ (petty shops) which are located in the site of the defendant Corporation on allotment. All the members have been carrying out their business for more than three decades and paying rents to the defendant Corporation from time to time. The said shops are the only source of livelihood of the members of the plaintiff.
There is an understanding and agreement between the members of the plaintiff and the defendant that the members can continue as long as they do business in their respective shops, but with due payments and periodical enhancements as per the practice. Therefore, the members of the plaintiff have right to continue and the defendant has got no right to forcibly evict them except under due process of law. The Commissioner of the defendant Corporation and some of its officials came to the plaint schedule property in January, 1997 and stated that they have to vacate their shops as the Corporation is going to provide shops in the proposed complex and the members of the plaintiff can be accommodated in the said complex with less rent and till such time they can continue in the shops shown as plaint schedule property. Believing the said representa tion, the members of the plaintiff complied with the request of the defen
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dant, but due to heavy rainfall on 5.10.1994 all the members sustained heavy losses in their business and even now they could not recoup the loss sustained by them. On one occasion the then Municipal Commis sioner, Sri Sameer Sharma has visited the shops on a petition lodged by the members of the Sangham and he promised that they cannot and will not be evicted under any circumstances, without making provision for their business. Even the successors of the defendant Corporation show ered the same promise.
The following are the members of the Plaintiff Sangham who are carrying on the respective shops :
01.Ruthula Usha Rani, W/o late Anjaiah, aged about 53 years, Suit cases business. (Impleaded in the place of Ruthula China Anjayya, S/o Tham manna) (Amended as per orders in I.A.No.101/2018 dated 18.12.2018)
02.Manchikanti Madhu Sudhana Rao, S/o Venkateswarulu, selling the stoves relating to the gas and attend the repairs to the stoves. (Impleaded in the place of Bysani Venkatanarayana S/o Purnachan dra rao) (Amended as per orders in I.A.No.102/2018 dated 18.12.2018)
03.Manchikanti Srinivasa Rao, S/o Venkateswarulu, aged about 43 years, selling the travelling bags and school bags. (Impleaded in the place of Kondaveeti Chalamayya, S/o Venkata Subbayya) (Amended as per orders in I.A.No.103/2018 dated 18.12.2018)
04.Gondesi Apparao Reddy, S/o Yellareddy, 42 years, stove repairing.
05.Chakka Radha W/o Venkata Channa Kesava Rao, aged about 43 years, selling the traveling bags and other bags. (Impleaded in the place of Sheik Basha S/o Babu). (Amended as per orders in I.A.No.104/2018 dated 18.12.2018).
06.Paila Gangadhara Rao, S/o late Simhachalam, aged about 43 years, plastic items business. (Impleaded in the place of Pyla Simhachalam, S/o Sanyasirao). (Amended as per orders in I.A.No.105/2018 dated 18.12.2018).
07.Parimi Koteswara Rao, S/o Lakshminarayana (P.H.C), 42 years, readymade dresses.
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08.Pinnamaraju Radha Rukmini, W/o Venkateswara Rao, aged about 65 years. (Impleaded in the place of Chakka Lakshmayya, S/o Chinnaswamy). (Amended as per orders in I.A.No.106/2018 dated 18.12.2018).
09.Panuganti Venkata Siva Rama Prasad, S/o Satyanarayana, aged about 46 years, repairs to the stoves and also dispose of the spare parts of the stoves and tubes relating to the stoves. (Impleaded in the place of Kommu Chandra Babu, S/o Jalayya). (Amended as per orders in I.A.No.107/2018 dated 18.12.2018).
10.Gollapudi Thoshi Kumar, S/o Janardhana Rao, aged about 36 years, selling Cycle spare parts and school bags. (Impleaded in the place of Nainayarapu Koteswara Rao, S/o Basavaraju). (Amended as per orders in I.A.No.108/2018 dated 18.12.2018).
11.Manchikanti Veera Venkata Vineth Kumar, S/o Madhusudhana Rao, Selling the travelling bags and other bags. (Impleaded in the place of Talada Paidnayudu, S/o Sanyasiraju). (Amended as per orders in I.A.No.109/2018 dated 18.12.2018).
12.Manchikanti Madhusudhana Rao, S/o Venkateswarulu, 26 years, Kirana Merchant.
13.Bramadevara Satyanarayana, S/o Durga Prasad, aged about 33 years, suit case repairs. (Impleaded in the place of Brahadevi Appa Rao, S/o Papa Rao). (Amended as per orders in I.A.No.110/2018 dated 18.12.2018).
14.Bandpalli Venkateswara Rao, S/o. Gopala Rao, aged about 48 years (impleaded in the place of Dandu Peddi Raju). (Amended as per orders in I.A.No.111/2018 dated 18.12.2018).
15.Pydimukkala Arlappa, S/o Babu Rao, (P.H.C) 30 years, Chappals Shop & Public Telephone No.424568.
16.Gandiboyina Mangayya, S/o Ramaswamy, 50 years, Ice Business.
17.Veluganti Lakshmana Rao, S/o Venkata Rao aged about 46 years, selling the stoves relating to the gas and attend the repairs to the stoves and also dispose of the spare parts of the stoves and tubes relating to the stoves. (Impleaded in the place of Kondaveeti Venkata Subba Rao, S/o Venkata Subbaiah). (Amended as per orders in I.A.No.112/2018 dated 18.12.2018).
18.Namala Vimala, W/o Srinivasa Rao, Hindu, aged about 31 years, selling Chapels and shoes. (Impleaded in the place of Boona Ravi Kumar, S/o Nageswara Rao). (Amended as per orders in I.A.No.118/2018 dated 18.12.2018).
19.Chakka Venkata Naga Saimanikanta, S/o Venkata Channa Kesava
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Rao, aged about 20 years, selling traveling bags. (Impleaded in the place of C.Kotireddy, S/o Venkata Reddy). (Amended as per orders in I.A.No.114/2018 dated 18.12.2018).
20.Chekka venkata Chenna Kesava Rao, S/o, Chenna Subbaiah, aged about 45 years stove repairing. (Impleaded as per orders in I.A.No.80/2018 dated 22.10.2018).
It is also learnt that the other businessmen of the locality who are earning much profits have been have been planning to get rid of the members of the plaintiff society as they are selling various items at rea sonable profit and the other businessmen are under clear conspiracy with the defendant’s officials. On 12.4.1997 the defendant’s officials and some policemen and some unruly elements have almost raided the shops of the members of the plaintiff without any reason and proclaimed that only two days time is given for lifting the shops to some other places which was not even allotted. The said unexpected and unrighteous scene created apprehension in the minds of the members of the plaintiff. Many such instances were there wherein the defendant apprehended the mem bers of the plaintiff with their highhanded acts.
Even now, the members of the plaintiffs are not served with any notice ether for eviction or for any arrears which itself speaks the bonafide and sincere continuance of the members of the plaintiff by re specting the terms of understanding who naturally expect due compli ance of the agreement from the defendant officials also. Instead of mak ing provision by constructing pucca shops the defendant and its officials are trying to adopt illegal measures for forcible eviction of the plaintiff’s members. Hence, the plaintiff filed O.S. No.272/97 in the larger interests of its members, for permanent injunction against the defendant and its officials. In the said suit status quo was granted by the Court and it is
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pending. The members of the plaintiff Sangham are depositing rents reg ularly to the credit of suit proceedings since the officials of the defendant refused to receive the rests.
The members of the Plaintiff association cannot be termed as en croachers since the occupation is with the consent and contract of the defendant only as such they are lessees in their respective buddy shops.
It is not the case of the defendant that the members of the plaintiff oc cupy the premises forcibly or in authorized manner. Thus, there is legal relationship between the members of the plaintiff and the defendant as tenant and landlord and it is the duty of the defendant to issue notice and seek legal remedies to evict the members. One AdvocateCommis sioner was appointed in I.A. No.532/1997. He stated that schedule shops or ‘baddikotlu’ are located near drainage canal i.e., on eastern side of drainage canal and not after the drainage canal or road margin.
Hence, the members of the plaintiff are not creating any traffic problems.
The donors of Ansari Park raised objection for constructing a complex in the place of library and park, as such the construction work in the said
Ansari Park is stopped.
In the opposite lane of the schedule shops similar shops are there and Hon’ble high Court in Writ Petition observed that the defendant shall take appropriate action in accordance with law after putting the peti tioner on notice by giving reasons therein before resorting to any dispos
sessions vide orders in Writ Petition No.7829/1997. In the Writ Petition
Nos.25200, 25198 and 25209 of 2001 the Hon’ble High Court also ob served that notice was issued under wrong provision of law and set aside the said notice.
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Defendant is styling the members of the plaintiff as encroachers instead of tenants. The members of the plaintiff cannot seek amendment of the plaint in O.S. No.272/1995 as the trial was commenced. The present suit was filed for declaration that members of the plaintiff sang ham are legal tenants and the rights are perfected under law and a con sequential relief of permanent relief was also sought. Mandatory injunc tion was also sought seeking direction to the defendant to construct pukka shop or shops in the ground floor and deliver the same to the members of the plaintiff sangham.
3.Defendant filed written statement denying the contentions of the plaintiff. The contentions of the defendant as seen from the written state ment are as follows :
The plaintiffs are encroachers of the site of the defendant Corpora tion and they installed some buddies and are carrying on petty business.
The plaintiff members are not having any agreement with the defendant in respect of the encroached shops. As per practice and rules the en croachers have to pay encroachment fee and collection of encroachment fee foes not confer any right of tenancy for continuation. The encroach ment fee paid by the plaintiff members as per the rules fixed by the Cor poration from time to time. The then Commission Sri Sameer Sharma never promised and no such promises were ever made to the members of the plaintiff society.
On 12.4.1997, the officials of the defendant never raided at the shops of the members of the plaintiff and they never threatened them to vacate the same. The defendant is not aware of the rivalry between the members of the plaintiff and other local traders in that locality, as such
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the question of conspiracy does not arise. The action of the defendant
Corporation on 12.4.1997 is strictly in accordance with law and the same was already appraised to the Civil Court in O.S. 272/1997 and the said suit was dismissed. The members of the plaintiff are not having legal right in continuation of the encroachment as there is no such agreement existing between the members of the plaintiff and the defendant.
The earlier suit vide O.S. No.272/1997 filed by the plaintiff was dismissed holding that the members of the plaintiff are not tenants un der the defendant. The officials of the defendant never refused to receive the rents tendered by the members of the plaintiff. As the earlier suit in
O.S. No.272/1997 was dismissed the appeal suit filed by the members
of the plaintiff was also withdrawn by them as such the question of exis tence of status quo does not arise. The construction in the underground of Ansari Park is not stopped and the construction is completed and it is ready for occupation. The factum of road widening is also well within the knowledge of the plaintiff. The members of the plaintiff are encroaching the western side of Ansari Park occupying the road side covering the drain, as such in the interest of public health and on the point of view of traffic, presence of these encroachers/members of the plaintiff is causing hurdles to the defendant in clearing the drain. The members of the plain tiff can even get pucca shops available in the locality both in the private sector and private sector as well as in the complex under the Municipal
Corporation. Even then the members of the plaintiff are preferring to continue in the encroachment to avoid rent and other encumbrances.
The plaintiff is bent upon filing similar suits and earlier they were dis missed and on the same lines filed the present suit to gain sympathy and the present suit is also liable to be dismissed.
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The plaintiff is not entitled to claim the relief of mandatory injunc tion also and the members of the plaintiff cannot cling to the schedule property without any right. Not even a scrap of paper was filed by the members of the plaintiff in support of their claims and contentions, as such the suit is liable to be dismissed.
4.Based on the said pleadings the following issues are framed :
1) Whether the members of plaintiff association are only the encroachers and if so, whether the plaintiff is entitled for declaration?
2) Whether the plaintiff is entitled for mandatory injunction?
3)Whether the plaintiff is entitled for permanent injunction?
4)To what relief?
5.During the course of trial, on behalf of the plaintiff P.Ws.1 to 6 were examined and Exs.A1 to A67 were marked. On behalf of defendant,
D.W.1 was examined and Ex.B1 was marked.
6.The arguments of learned Counsel for the plaintiff are summarized as follows :
The members of the plaintiff occupied the plaint schedule property about 30 years ago and an Association was also formed and they are paying regular taxes to the Municipal Corporation for utilizing the prop erty and demand notices were also raised in the name of the plaintiff.
Entire record from the year 1996 to 2002 was filed by the plaintiff which shows that the members of the plaintiff are enjoying the plaint schedule property. It is for the plaintiff to satisfy this Court about the proof of oc cupation and about the point whether the said occupation is legal or not.
The previous suit referred in the plaint is on different aspect, as such the particulars of the previous suit were not mentioned in detail in present suit.
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For deviation in the constructions, if a tax is collected it is legal ized. In the same manner, the members of the plaintiff occupied the plaint schedule property about 30 years ago and paid tax from the year 1996 as such any permanent occupation will be considered as legal oc cupation. Amount is collected by the defendant only for enjoyment, as such the relationship between the Corporation and the occupants is es tablished as owner and tenant.
Even DW1 admits about the collection of tax and even admits in his cross examination that a resolution of the Council is necessary to take any action against the members of the plaintiff. No record was pro duced by DW1 regarding encroachment and the shop allotted to PW6 is admitted by DW1 and it was not disputed and he also admits that one shop in Ansari Park is allotted to G.Lakshmaiah which shows that the plaint schedule and the occupation of the members of the plaintiff has been recognized. From the year 1997 no encroachment notice was given to the plaintiff. Therefore, if the land belongs to the Corporation and if the members of the plaintiffs are in possession of the said land for over 30 years, the members can be considered as legal occupants and they can even claim adverse possession. The defendant never contends that
Ex.A2 and A3 tax receipts are encroachment taxes. Therefore, the mem bers of the plaintiff are paying taxes regularly to the defendant as such they are entitled to claim right over plaint schedule property and they cannot claim absolute right over the plaint schedule property. Even li cense means a permission to continue and it is not an encroachment and when once members of plaintiff are in continuous possession, it im plies that the said possession is adverse to the interests of the defendant and even though the defendant collected amount from the members they
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never raised any objection, as such the encroachment for a considerable period is recognized. In response to thedemand notice issued by the de fendant, members of the plaintiff complied the same and paid the tax and the documents would not disclose the nature of the tax. While con structing underground shops the plaint schedule property was not re moved which shows that the members of the plaintiff are recognized as such no member of the plaintiff can be identified as an encroacher.
Therefore, the members of the plaintiff are entitled to the relief of decla ration and also entitled to the relief of consequential relief of permanent injunction and independent relief of mandatory injunction
7.The contentions of the learned Counsel for the defendant are sum marized as follows :
No pleading of adverse possession is taken in the pleadings and the members of the plaintiff are not entitled to take such plea. As per the defendant Corporation, members of the plaintiff are encroachers and ad mittedly they are paying encroachment fees only. Therefore, the mem bers of the plaintiff cannot be declared as legal tenants. On one hand, the members of the plaintiff say that they are tenants and on the other hand, they say that they are paying encroachment fee and they never filed rent receipts as such the question of granting declaratory relief does not arise. As the members of the plaintiff encroached the road margin no mandatory injunction can be granted as claimed by the plaintiff. Even the Appeal Suit filed by the plaintiff previously was withdrawn and the present suit was filed on the same lines. Therefore, there was no process initiated by the defendant for recognizing tenancy rights of the members of the plaintiff and no circumstances are established by the members of
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the plaintiff to claim tenancy. Thus, admittedly the members of the plain tiff are encroachers, as such they are not entitled to claim relief of decla ration.
8. ISSUE No.1 :
To establish that there is landlord and tenant relationship between the defendant and the plaintiff society, it is for the plaintiff to establish that an agreement is there between the defendant and the plaintiff and in pursuance of the said agreement the members of the plaintiff sang ham are paying rents to the defendant regularly. It is the contention of the plaintiffs that to show the enjoyment over the plaint schedule prop erty, members of plaintiff filed documents from the year 1986 to 2002 to establish that they are in possession and enjoyment of the respective stalls in the plaint schedule property. The contention of the defendant is that there is no evidence to show that the members of the plaintiff are tenants of the defendant and they are only encroachers and paying en croachment fee. In the plaint a specific pleading is there that there was an understanding agreement between the members of the plaintiff and the defendant that the members can continue as long as they do busi ness in the respective shops, but with due payments and periodical en hancements as per the previous practice. It was also recited in the plaint that the plaintiff association cannot be termed as encroachers since the occupation is with the consent and contract of the defendant only, as such they are lessees in their respective shops and there exists a legal re lationship between the members of the plaintiff and the defendant as tenants and landlord. Therefore, when members of the plaintiff specifi cally contend that they are lessees in their respective shops and there ex
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ists an understanding of agreement between the members of the plaintiff and the defendant regarding continuation of the business in the plaintiff premises, it is for the plaintiff to file relevant material in support of its contentions. It was elicited from the cross examination of DW1 that they have no record to show that whether any encroachment was there or not.
He admits that one shop was allotted to Ch.Lakshmaiiah in Ansari Park,
Governorpet, and from the year 1997 till now no encroachment notice was issued to the plaintiff.
The plaintiff relied upon Exs.A2 and A3/tax receipts and in fact there are only two receipts filed by the plaintiff. Out of 67 documents filed by the plaintiff, other than Exs.A2 & A3, the receipts filed by the plaintiff are only towards payment of electricity charges from the year 1986 till the year 2018. Filing of electricity receipts at best establish the possession of the members of the plaintiff over the plaint schedule premises. But, to establish that they are the tenants of the defendant, it is for the plaintiff to file rent receipts or to file documents to establish the existence of an agreement between the defendant and the members of the plaintiff.
Before coming to Ex.A2 and A3 it is to be noted that Ex.A1 to A49
were filed by the plaintiff as secondary evidence and they were allowed to be marked as per orders of this Court in I.A.No.16/2019 dated 9.4.2019.
As the originals were misplaced, the contentions of the plaintiff can be taken into account and Exs.A1 to A49 can be taken as secondary evi dence subject to proof and relevancy.
Ex.A50 to A67 are the original documents filed as per orders in I.A.
No.23/2019 dated 13.6.2019 and it is for the plaintiff to establish that
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the members of the plaintiff paid the electricity bills under Ex.A50 to
A67.
Now coming to Ex.A2 tax receipt. Ex.A2 is not legible copy and it cannot be taken into account. Ex.A3 is issued in the name of Sri Bysani
Venkata Narayana for running tea stall and the tax paid under Ex.A3 is annual tax for the year 1986 to 1987 for Rs.75/. However, in the place of Bysani Venkata Narayana the second member by name Manlchikanti
Madhusudhana Rao was impleaded as per orders of this Court in I.A.
No.102/2018 dated 18.12.2018. Ex.A3 tax receipt is relating to the year 198687 only and no subsequent tax receipts were filed. To establish that there exists a relationship of tenant and owner between the plaintiff and defendant, there should be tax receipts for a continuous period, but the plaintiff filed only two tax receipts pertaining to the year 198687 and no subsequent receipts were filed.
No doubt under Ex.A43 certificate of registration dated 9.7.1996, the plaintiff society was registered. Equally Ex.A44 copy of proceedings
before Municipal Corporation was filed by the plaintiff and as per the
condition No.’A’ of Ex.A44 it was stipulated that the encroachers should pay encroachment license fee every year and condition No.’C’ of Ex.A44 lays down that the bunks will be removed after intimation whenever they are found objectionable. Therefore, Ex.A44 states that the plaintiff filed only material pertaining to encroachers and encroachment license fee ev ery year, but not the rent and the agreement of tenancy. Added to it the evidence of PW1 also assumes importance. In the cross examination of
PW1 it was elicited from him that without permission from the defendant the plaint schedule property was established by them and PW1 volun teered that they are paying annual tax to the defendant for their shops
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and they never paid monthly rentals to the defendant. PW1 further made a categorical admission that no documentary proof was filed by them to show that the plaint schedule property was let out to them. One sugges tion was put to PW1 in his cross examination as follows :
“It is not true to suggest we only paid encroachment fee for the plaint schedule property and the defendant never let out the plaint schedule property to us”
When PW1 himself admits in his cross examination that the plaint schedule property was established by them without any permission from the defendant and when he emphatically admits that there was no docu mentary proof to show that the plaint schedule property was let out to them, by considering Ex.A4 to A49, the conclusion which can be drawn is that the members of the plaintiff are in possession of the respective bunks as encroachers.
To substantiate the contention of the defendant that the members of the plaintiff are encroachers, PW2 admits in his cross examination that they paid tax to the association and PW3 admits that they paid an nual tax of Rs.480/ to the defendant Corporation and after some mem bers vacated the shops they took possession of the shops, which sug gests that taking possession of shops without any authority from the de fendant is an encroachment. Now coming to the testimony of PW4 who testified that he can file receipts to show that he pays Municipal tax to the defendant, but he did not file any such receipts. PW5 categorically testified that he pays tax to the committee members and he does not know particulars of the tax paid directly to the defendant. An affirmative admission was made by PW6 in his crossexamination that he is paying annual encroachment fee to the Municipal Corporation. He referred in
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his chiefexamination about allotment proceedings passed by the defen dant Corporation in the year 1983. When PW6 himself admits that he pays annual fees to the Municipal Corporation, the material evidence of
P.Ws.1 to 6 and the documents filed the plaintiff suggest that the mem bers of the plaintiff are only encroachers, but not tenants of the defen dant.
Even DW1 in his chief examination testified that the Municipal
Corporation is not having any agreement with the plaintiff in respect of the encroached shops and the same was also admitted by PW1 in his cross examination. Even though DW1 deposed in his cross examination that he does not know the mode of tax paid by the plaintiff, equally the burden is on the plaintiff to file tax receipts or atleast the receipts ob tained from the society as PW2 deposed that they paid taxes to the asso ciation. The receipts issued by the plaintiff society were not filed and on the other hand, receipts from the year 1987 till date were not filed by the members of the plaintiff to show that they are paying taxes to the defen dant Corporation.
The members of the plaintiff contend that as the defendant refused to receive tax, they deposited the tax in the Court. However, in the plaint, the plaintiff referred to O.S. No.272/1997 and in the cross examination of DW1 it was suggested to the defendant that the facts in that O.S.
No.272/1997 and the facts of this suit are not one and the same and they cannot be correlated. Even the Court in which the O.S. No.272/97 was filed, was not mentioned in the plaint. If at all the plaintiff furnishes the full particulars of the earlier suit including the date of judgment and the certified copy of judgment then only this Court can come to a conclu sion about the previous events and the facts transpired prior to filing of
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this suit. It was only elicited from the cross examination of PW1 that O.S.
No.272/1997 was dismissed and the appeal was preferred by the plaintiff and the plaintiff withdrew the appeal voluntarily. Only in the written statement some particulars of O.S. No.272/1997 were mentioned and as per the defendant O.S. No.272/1997 was dismissed and appeal was filed and withdrawn and the same was admitted by the plaintiff. Only if the plaintiff filed a judgment in O.S.No.272/1997 then only this Court can come to a conclusion that the facts in the said suit cannot be correlated with the facts of this suit. When the plaintiff filed 67 documents what prevented the plaintiff from filing the judgment in O.S. No.272/1997?
Therefore, even though DW1 deposed that he has no record regarding encroachment, however, PW1 filed Ex.A44 which describes the guidelines given to the encroachers. PW1 to PW6 testified about the annual tax paid by them and PW6 admits that they are paying annual encroachment tax to the Municipal Corporation. Therefore, the evidence on record shows that the members of the plaintiff are only encroachers, but not tenants of the defendant and the defendant is guided by its policies to provide alter native accommodation to the members of the plaintiff and the plaintiff cannot seek a direction from the defendant in that regard. Therefore, the members of the plaintiff are only encroachers.
Now coming to the aspect whether the plaintiff is entitled to the re lief of declaration, the answer is, when the plaintiff failed to establish that they are tenants of the defendant even though they made specific pleadings that there exists an agreement and they are lessees, the plain tiff miserably failed to establish its right to claim declaratory relief.
Therefore, they are not entitled to the relief of declaration as legal ten ants.
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Now coming to perfection of the rights of the members of the plain tiff. The contention of the learned counsel for plaintiff is that it is admit ted that the members of the plaintiff are in possession and enjoyment of their respective shops for over 30 years, as such by virtue of adverse pos session, plaintiffs are entitled to protect their rights. However, to estab lish the adverse possession it is for the plaintiff to place material to show that they are in possession and enjoyment of the plaint schedule prop erty adverse to the interests of the defendant. However, the fact is other wise. The members of the plaintiff are paying encroachment fee and they are encroachers, as such the defendant has knowledge of the fact that the members of the plaintiff are encroachers and permitted the members of plaintiff as encroachers but not as tenants. Therefore, the plaintiff cannot take shelter of adverse possession as such the plaintiff is not en titled to the relief of declaration as legal tenants or perfection of rights under law. Accordingly the issue is answered against the plaintiff.
9. ISSUE Nos.2 & 3:
As the plaintiff is not entitled to the relief of declaration the ques tion of claiming consequential relief of permanent injunction does not arise. Now with reference to the mandatory injunction, the contention of the plaintiff is seeking a direction to the defendant to construct pucca shops in the place of plaint schedule property. It was elicited from the crossexamination of PW1 that there was a proposal from the defendant for laying out the shops by the defendant in that locality to the plaintiffs.
In his crossexamination DW1 stated that the shops of the plaintiff af fected the master plan layout as such there are objections. Therefore, it is for the Municipal Corporation to take decision at its end for allotment
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of shops. In the absence of entitlement of declaratory relief to the plain tiff, the plaintiff cannot seek relief of mandatory injunction. Accordingly the issues 2 & 3 are answered against the plaintiff.
10. ISSUE No.4:
In view of my foregoing findings on Issue Nos.1, 2 & 3, the suit is liable to be dismissed.
11.In the result, the suit is dismissed, in the circumstances without costs.
Dictated to the Stenographer of II Addl. Senior Civil Judge’s Court,
Vijayawada (the II Addl. Senior Civil Judge, Vijayawada is holding Full
Additional Charge of the V Addl. Senior Civil Judge, Vijayawada), tran
scribed by her, corrected and pronounced by me in the open Court this the 27th day of February, 2020.
II ADDL. SENIOR CIVIL JUDGE,
FAC V ADDL. SENIOR CIVIL JUDGE,
VIJAYAWADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF : DEFENDANT :
PW1 : M. Madhusudana Rao.DW1 : Nelapudi Giri. PW2 : Golapudi Janardhana Rao PW3 : Ch. Venkata Chena Kesava Rao PW4 : P. Venkata Siva Rama Prasad PW5 : Pyla Gangadhar Rao PW6 : Parimi Koteswara Rao
DOCUMENTS MARKED ON BEHALF OF
PLAINTIFF:
Ex.A1:Copy of pass for electricity charges
Ex.A2:Copy of receipt for the amount paid towards yearly taxes.
Ex.A3:Copy of receipt for the amount paid towards yearly taxes. Dt.01.08.1997.
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Ex.A4:Copy of Receipt for payment of electricity charges, Dt.05.10.2000.
Ex.A5:Copy of Receipt for payment of electricity charges, Dt.19.10.1988.
Ex.A6:Copy of Receipt for payment of electricity charges, Dt.05.03.1986.
Ex.A7:Copy of Receipt for payment of electricity charges, Dt.11.11.1986.
Ex.A8:Copy of Receipt for payment of electricity charges, Dt.14.03.1976.
Ex.A9:Copy of Receipt for payment of electricity charges, Dt.17.06.1986.
Ex.A10:Copy of Receipt for payment of electricity charges, Dt.10.02.1987.
Ex.A11:Copy of Receipt for payment of electricity charges, Dt.10.02.1987.
Ex.A12:Copy of Receipt for payment of electricity charges, Dt.30.04.1987.
Ex.A13:Copy of Receipt for payment of electricity charges, Dt.07.05.1987.
Ex.A14:Copy of Receipt for payment of electricity charges, Dt.9.06.1987.
Ex.A15:Copy of Receipt for payment of electricity charges, Dt.12.06.1987.
Ex.A16:Copy of Receipt for payment of electricity charges, Dt.12.07.1987.
Ex.A17:Copy of Receipt for payment of electricity charges, Dt.25.08.1989.
Ex.A18:Copy of Receipt for payment of electricity charges, Dt.09.06.1987.
Ex.A19:Copy of Receipt for payment of electricity charges, Dt.12.01.1988.
Ex.A20:Copy of Receipt for payment of electricity charges, Dt.05.09.1988.
Ex.A21:Copy of Receipt for payment of electricity charges, Dt.05.12.1988.
Ex.A22:Copy of Receipt for payment of electricity charges, Dt.21.10.1988.
Ex.A23:Copy of Receipt for payment of electricity charges, Dt.07.07.1988.
Ex.A24:vReceipt for payment of electricity charges, Dt.18.10.1985.
Ex.A25:Copy of Receipt for payment of electricity charges, Dt.05.12.1988.
Ex.A26:Copy of Receipt for payment of electricity charges, Dt.02.02.1988.
Ex.A27:Copy of Receipt for payment of electricity charges, Dt.06.04.1988.
Ex.A28:Copy of Receipt for payment of electricity charges, Dt.19.05.1988.
Ex.A29:Copy of Receipt for payment of electricity charges, Dt.07.07.1988.
Ex.A30:Copy of Receipt for payment of electricity charges, Dt.02.02.1988.
Ex.A31:Copy of Receipt for payment of electricity charges, Dt.17.10.1987.
Ex.A32:Copy of Electricity bills for the month of August to September, 2000
Dt. 01.10.2000.
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Ex.A33:Copy of Electricity bills for the month of October to November, 2000.
Dt. 01.10.2000.
Ex.A34:Copy of Electricity bills for the month of February and March, 2001,
Dt. 01.04.2001.
Ex.A35:Copy of Electricity bills for the month of February and March, 2001,
Dt. 01.04.2001.
Ex.A36:Copy of Electricity bills for the month of April and May, 2001, Dt. 01.06.2001.
Ex.A37:Copy of Electricity bills for the month of April and May, 2001, Dt. 01.06.2001.
Ex.A38:Copy of Electricity bills for the month of October and November, 2001, Dt. 01.12.2001.
Ex.A39:Copy of Electricity bills for the month of December and January, 2002, Dt. 01.02.2002.
Ex.A40:Copy of Electricity bill and receipt for the month of April and May, 2002, Dt. 01.06.2002.
Ex.A41:Copy of Electricity bill card.
Ex.A42:Copy of Electricity bill card.
Ex.A43:Copy of Certificate of registration, Dt. 09.07.1996.
Ex.A44:Copy of Proceeding before Municipal Corporation.
Ex.A45:Copy of Paper publication, Dt. 06.10.1996.
Ex.A46:Copy of Office copy sent by the plaintiff, Dt. 15.07.2004.
Ex.A47:Copy of Certificate of posting.
Ex.A48:Copy of resolution, Dt. 09.08.2004.
Ex.A49:Copy of Certificate of registration of plaintiff Society, Dt.10.01.1996.
Ex.A50:Electricity bill in the name of P. Koteswara Rao, Dt. 18.10.2012.
Ex.A51:Electricity bill in the name of P. Koteswara Rao, Dt. 18.11.2008.
Ex.A52:Electricity bill in the name of P. Koteswara Rao, Dt. 01.06.2003.
Ex.A53:Electricity bill in the name of Param Koti Reddy, Dt. 24.04.2013.
Ex.A54:Electricity bill in the name of Param Koti Reddy, Dt. 17.02.2012.
Ex.A55:Electricity bill in the name of Param Koti Reddy, Dt. 19.11.2011.
Ex.A56:Electricity bill in the name of B.V. Narayana, Dt. 11.12.2018.
Ex.A57:Electricity bill in the name of Pydimukala Arlappa, Dt. 19.01.2016.
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Ex.A58:Electricity bill in the name of Pydimukala Arlappa, Dt. 19.05.2013.
Ex.A59:Electricity bill in the name of Pydimukala Arlappa, Dt. 19.12.2012.
Ex.A60:Electricity bill in the name of Pydimukala Arlappa, Dt. 21.08.2012.
Ex.A61:Electricity bill in the name of Dandu Peddi Raju, Dt. 11.01.2019.
Ex.A62:Electricity bill in the name of Pydimukala Arlappa, Dt. 11.12.2018.
Ex.A63:Complainant to Deputy Police Commissioner, Vijayawada, dated 01.05.1997.
Ex.A64:News item No. daily paper Praja Sakthi in respect of the Association, Dt.03.05.1997.
Ex.A65:News item No. daily paper Eenadu in respect of the Association Eenadu, Dt.17.12.1997.
Ex.A66:News item No. daily paper Eenadu in respect of the Association, Dt.01.12.2004.
Ex.A67:News item No. daily paper Eenadu in respect of the Association, Dt.14.10.2004.
DEFENDANT:
Ex.B1 : Authorization letter, dated 28.11.2019.
II ASCJ, VJA.
FAC V ASCJ, VJA.