Smt P. Lakshmi Kumari

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: ONGOLE

Present: Smt P. Lakshmi Kumari,

Principal Junior Civil Judge, Ongole

Friday this the 28th day of April, 2017

Original Suit No.125 of 2011

Between:

1. Nalamalapu Anji Reddy, S/o Venkataswamy Reddy, aged 60 years, Hindu, Cultivation, R/o Guravareddypalem village, h/o Nelatur village, Maddipadu Mandal, Prakasam District.

2. Kapa Sreenivasula Reddy, S/o late Venkata Reddy, aged about 37 years, Hindu, Cultivation, R/o Guravareddypalem village, h/o Nelatur village, Maddipadu Mandal, Prakasam District.

3. Kapa Lakshmana Reddy, S/o late Venkata Reddy, aged about 40 years, Hindu, Cultivation, R/o Guravareddypalem village, h/o Nelatur village, Maddipadu Mandal, Prakasam District. … Plaintiffs.

And

Gunduri Subba Reddy, S/o Anji Reddy, aged 59 years, Hindu, Cultivation, R/o Guravareddypalem village, h/o Nelatur village, Maddipadu Mandal, Prakasam District. … Defendant.

The suit coming on 07.04.2017 before me for final hearing in the presence of Sri G.V.Narendra Babu, Advocate for the Plaintiffs and Sri

J.Prabhakara Reddy, Advocate for the defendant; upon hearing the arguments and having stood over for consideration till this day, this Court delivered the following:

// J U D G M E N T //

01. Suit filed for declaration that the plaintiffs are the absolute owners of the plaint schedule property by directing the defendant to hand over the possession of the schedule property to the plaintiffs and for costs.

02.The brief averments of the plaint are as follows:

The plaintiffs purchased an extent of Ac.3-51 cents of land in

S.No.350/2 of Maddipadu village from one Male Govindamma and two 1 others through registered sale deed dated 30.04.1981 under document

No.1609/1981 for proper consideration and since the plaintiffs are in possession and enjoyment of the same with absolute rights. The revenue records show that the plaintiffs are in possession of the property with absolute rights. The plaintiffs wanted to sell the land to one Samanthapudi

Samba Raju and hence they have measured the land and the extent came to only Ac.2-98 cents instead of Ac.3-51 cents and then they came to know that an extent of Ac.0-53 cents has been occupied by the defendant.

Then the plaintiffs paid the challan of Rs.250/- to the surveyor to measure the land. The surveyor surveyed the plaintiffs' land and stated that an extent of Ac.0-53 cents of land is in the land of the defendant. The defendant filed the suit in O.S.No.682/2007 on the file of IIIrd Addl. Junior

Civil Judge's Court, Ongole for permanent injunction not to disturb the

ridges of the land and to grab the plaint schedule property and the suit is pending. But the defendant is not having any right over Ac.0-53 cents i.e., plaint schedule property and it belongs to the plaintiffs. That the plaintiffs came to know that the defendant is going to sell his land including the plaintiffs' land to others and then the plaintiffs got issued legal notice to the defendant on 19.05.2007. In the notice it was intimated that an extent of Ac.0-53 cents is in occupation and possession of the defendant. The surveyor measured the land as per the documents of the plaintiffs and found that an extent of Ac.0-53 cents is in excess in possession with the defendant. As per the sale deed the plaintiffs are rightful owners of the plaint schedule property, but the same is in possession of the defendant and hence the plaintiffs demanded the defendant to handover the plaint schedule property to them. The defendant is refusing to return the possession of the plaint schedule property on the ground that he was in possession of the same since a long time, but he did not produce any document and he is claiming it as his ancestral property. The defendant has no right or title over the plaint 2 schedule property. Hence this suit.

03.Defendant filed his written statement denying the plaint averments and submitted that in fact the Sy. No.350 of Maddipadu village contains an extent of Ac.8.70 cents. The said Sy. No.350 subdivided as (1) 350/1 and extent of Ac.0.62 cents in the name of Kanchi Kistamma (2) 350/2 an extent of Ac.7.71 cents in the name of Kanchi Raghavulu (3) 350/3 an extent of Ac.0.30 cents as Donka and Sy.No.350/4 an extent of

Ac.0.07 cents as Donka. The Sy. No.350/2 an extent of Ac.7.71 cents and

Sy. No.349 an extent of Ac.3.31 cents total Ac.10.02 cents land consisting a single plot under the ownership of late Kanchi Raghavulu and the said fact disclosing in the R.S.R. and other revenue records. The said extent of

Ac.10.02 cents comprised in Sy.Nos.349 and 350/2 devolved up on from late Kanchi Raghavulu as follows: (1) Kanchi Veera Reddy and

Narayanamma got an extent of Ac.1.56 cents Sy.No.350/2; (2)

Bheemanadham Venkata Subba Reddy got an extent of Ac.1.78 cents in

Sy. No.349(3); (3) Bheemanadham Jali Reddy got an extent of Ac.1.78 cents in Sy. No.349 Ac.033 cents and Sy. No.350/2 Ac.1.25 cents; (4)

Ganduri Chimpiri Reddy got an extent of Ac.0.38 cents in Sy. No.350/2; (5)

Ganduri Venkata Reddy got an extent of Ac.1.52 cents in Sy. No.350/2 and (6) Male Narapa Reddy (Govindamma) got an extent of Ac.3.00 cents.

Thus the land has been in their exclusive possession and enjoyment. All the above said land owners are close and inter related among them.

Therefore the entire land inter changed among them. Again plaintiff purchased the extent of Male Govindamma (Narapa Reddy) i.e., Ac.3.00 cents. Defendant being a grand son of late Venkata Reddy got an extent of Ac.1.52 cents and late Jali Reddy got to an extent Ac.1.178 cents (Ac.0.53 cents in Sy. No.349 and Ac.1.25 cents in Sy.No.350/2). It has been in his and his family possession and enjoyment with full rights. The defendant and his father paying cist to the said extent along with other property. Therefore, the defendant has absolute right over the extent of 3

Ac.3.23 cents in both survey numbers neither plaintiffs nor their vendors have any right over the said extent claim of the extent of defendant.

Nalamalapu Peddi Reddy purchased the extents of Ganduri Chimiri Reddy and Bheemanadham Venkata Subba Reddy an extent of Ac.2.11 cents.

Without having the extent Ac.3.51 cents of the schedule the vendor of plaintiffs Govindamma and others sold away to the plaintiffs by mistake or wrongful intention and the plaintiffs purchased in the similar fashion. But neither plaintiffs nor their vendors have possession and enjoyment of the suit schedule at any point of time. So, the plaintiffs are not entitled for any claim of declaration and possession. The defendant had absolute rights over the schedule property even under the adverse possession as the same has been in his possession since time immemorial much less from the purchase of plaintiffs. The other land owners of the same survey numbers like Kanchi Veera Reddy and Narayanamma, Nalamalapu Peddi

Reddy, Samanthapudi Samba Raju and D.Ramachandra Rao are the proper and necessary parties to the suit. Therefore, the suit is not maintainable as non-joinder of proper and necessary parties and prays to dismiss the suit with costs.

04.After issues defendant filed additional written statement and submitted that in fact the vendors of the plaintiffs had possessed only an extent of Ac.3.00 cents, but not Ac.3.51 cents. Since time immemorial the suit schedule land have been in peaceful possession and enjoyment of the defendant and his ancestors till today. This fact is known to one and all in the vicinity of the schedule including plaintiffs. The plaintiffs and their vendors have been in possession and enjoyment only Ac.3.00 cents in Sy.

No.350/2. Even if it is belongs to the vendors, they will not get any right over the said land as the defendant perfected the rights and title by way of adverse possession. Without having possession and hand overing the extent though it is mentioned in the sale deed of the plaintiffs will not get any rights and prays to dismiss the suit.

4

05.In view of the above pleadings, the following issues are settled for trial :

1. Whether suit is not maintainable for non-joinder of proper and necessary parties ?

2. Whether the plaintiff had got title over suit schedule property and he is entitled for declaration as prayed for ?

3. Whether the plaintiff is entitled for recovery of possession as prayed for?

4. To what relief ?

06.On behalf of Plaintiffs Pws.1 to 3 were examined and got marked Exs.A.1 to A.9. On behalf of defendant Dws.1 to 4 were examined and got marked Exs.B.1 to B.8.

07.Heard arguments.

08.Issue Nos 2 & 3: Since these issues are inter connected this court intends to answer them together.

It is a specific case of plaintiffs that they are absolute owners and possessors of suit schedule property by virtue of Ex.A1 and that when plaintiffs intended to sell to one Samanthapuri Samba Raju they have got measured the land through surveyor and the extent found was only Ac.2- 98 cents instead of Ac.3.51 cents and then plaintiffs came to know that 53 cents of land has been occupied by defendant and the surveyor had also intimated to the plaintiffs and the defendant and others about the survey of the land and stated that and extent of 53 cents of land is in the land of defendant. Defendant filed suit in OS.682/2007 on the file of learned III

Addl. Junior Civil Judge, Ongole for permanent injunction not to disturb the ridges of the land and to grab the petition schedule property though defendant is not having any right over the 53 cents of land and after filing of the said suit, it came to the knowledge of the plaintiffs that defendant is intending to sell his land including the land of plaintiffs and then the plaintiffs got issued legal notice to the defendant on 19.5.2007 where the fact of occupation and possession of 53 cents of land is with defendant is got mentioned and hence plaintiffs demanded the defendant to hand over 5 the 53 cents of land but defendant refused to return the 53 cents of land on the ground that defendant is in possession and enjoyment since long time having adverse title over the suit schedule property.

9.It is specific case of defendant that land in Sy. No.350 of

Maddipadu Village contains total extent Ac.8-70 cents and the said Sy.

No.350 is sub divided as Sy.No.350/1 to an extent of 62 cents in the name of Kanchi Kistamma, Sy.No.350/2 to an extent of Ac.7-71 cents in the name of Kanchi Raghavulu, 350/3 to an extent of 30 cents as Donka and

Sy.No.350/4 to an extent of 7 cents as Donka and that Sy. No.350/2 to an extent of Ac.7-71 cents and Sy.No.349 to an extent of Ac.3-31 cents total

Ac.10-02 cents consisting of single plot under the owner ship of Kanchi

Raghavulu disclosing the name of Kanchi Raghavulu in Re settlement register and other revenue records and from Kanchi Raghavulu it devolved upon 1. Kanchi Veera Reddy and Narayanamma to an extent of Ac.1-56 cents in Sy.No.350/2. (2) Bheemanadham Venkata Subba Reddy got an extent of Ac.1.78 cents in Sy.No.349(3); (3) Bheemanadham Jali Reddy got an extent of Ac.1.78 cents in Sy.No.349 Ac.033 cents and Sy.No.350/2

Ac.1.25 cents; (4) Ganduri Chimpiri Reddy got an extent of Ac.0.38 cents in Sy.No.350/2; (5) Ganduri Venkata Reddy got an extent of Ac.1.52 cents in Sy.No.350/2 and (6) Male Narapa Reddy (Govindamma) got an extent of

Ac.3.00 cents and that plaintiffs purchased 3 cents of land from Male

Govindamma (Narapareddy and vendor of the plaintiffs without having the extent Ac.3-51 cents had sold away to the plaintiffs by mistake or with wrong intention and plaintiffs had also accordingly purchased the same in

Similar fashion and neither the plaintiffs nor the vendor of the plaintiffs has been in possession and enjoyment of suit schedule property at any point of time and therefore plaintiffs are not entitle for relief of declaration.

6

10.Learned counsel for the plaintiffs argued plaintiffs are the absolute owners and possessors of suit schedule property by virtue of

Ex.A1 and that when plaintiffs intended to sell to one Samanthapuri

Samba Raju they have got measured the land through surveyor and the extent found was only Ac.2-98 cents instead of Ac.3.51 cents and then plaintiffs came to know that 53 cents of land has been occupied by defendant and the surveyor had also intimated to the plaintiffs and the defendant and others about the survey of the land and stated that and extent of 53 cents of land is in the land of defendant and that as per the sale deed under EXA.1, the plaintiffs are rightful owners of the plaint schedule property, but the same is in possession of the defendant and when the plaintiffs had demanded the defendant to handover the plaint schedule property to plaintiffs, the defendant had refused to return the possession of the plaint schedule property to the plaintiffs on the ground that he was in possession of the same since a long time and it is his ancestral property , but defendant had not produced any documentary proof claiming suit schedule property as his ancestral property.

11.Learned counsel for defendant argued that heavy burden is upon the plaintiffs to establish right, title and possession over suit schedule property and Pw.1 in his cross examination categorically admitted the fact that after measurement of property under Ex.A1 the four side boundaries are found intact consisting of four ridges and Ex.B2 clearly disclosed that the specific demarcation of well grown grass boundary ridges between plaintiffs and defendant and the documents marked by the plaintiffs under EXA.1 will not proove the right, title and possession of plaintiff as the vendors of plaintiffs had no right, title and possession over suit schedule property and vendor of the plaintiffs by name deceased Malle Govindamma in her deposition in respect of suit in suit in O.S 682/2007 on the file of Learned III additional junior civil judge 7 under EXA.6 and EXB.1 had expressed ignorance about the fact of total extent in respect of survey number of suit schedule property and she and her husband never got measured the said land but Mala Govindamma in her evidence had admitted that on the eastern side of plaint schedule property, defendants herein and others lands situated and in between the land of Mala Govindamma and defendant herein and others land, there is a straight ridge. Learned counsel for the defendant further argued that documents marked under EXA.2 and EXA.3 and EXA.8 and EXA.9 which are revenue records and documents and same will not confer right, title and possession to the plaintiffs in respect of suit schedule property and therefore plaintiffs failed to prove that suit schedule property is encroached by the defendant.

12.Learned counsel for the defendant relied upon citation2011

(1) Law Summary 53 reported in Madiga Papanna Vs., State of

A.P. & Others , wherein it is held that mere entries in R.S.R. will not constitute proof of title in absence of any other revenue record.

13.Learned counsel for defendant further relied upon citation

Shaik Ali and others Vs., District Collector, Chittoor, Chittoor

District and others reported in 2011 (2) ALD 48, wherein it is held that mere entries in R.S.R. or A-Register will not offer conclusive proof of title or ownership of land and do not constitute.

14.Learned counsel for defendant further relied upon citation

B.Sreenivasulu Vs., B.Kusuma Kumari and other reported in 2016

(1) ALT 806, wherein it is held that mere mistake or mis-description of only one boundary in one item of the schedule property which are crept in the plaint can be corrected even after passing of decree and that as per the settled law, boundaries will prevail over survey number and extents, 8 the same can be corrected for no change of boundaries.

15.Learned counsel for defendant further relied upon citation

N.Srinivas and another Vs., N.Yadagiri and another reported in

2016 (5) ALT 493, wherein it is held that whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in the cross examination, it must follow that he believed that the testimony given could not be disputed.

16.Learned counsel for defendant further relied upon Gorige

Ailamma Vs., Utkoori Somaiah and others reported in 2015 (2)

ALD 291, wherein it is held that suit for declaration of title and recovery of possession, burden lies upon such parties to adduce satisfactory evidence to prove his title and possession when a party takes a specific plea that he has put the defendant in possession of the said property.

17.Learned counsel for defendant further relied upon Shaik

Rahim Vs., Shaik Nasar Ahmed and others reported in 2011 (5)

ALD 438, wherein it is held that in a suit for declaration of title and consequential mandatory injunction ,two aspects become necessary. First is that plaintiff must independently prove his title over the property without depending upon the weakness of the defendant, the second is that even if the plaintiff has proved his title, the defendant can successful the resist the suit in case, he proof a title, which is superior to the one pleaded and proved by the plaintiff.

18.Plaintiffs to prove their suit claim had examined 3rd plaintiff as

Pw.1 who reiterated the plaint averments and got marked Ex.A1 to A5.

19.Perusal of Ex.A1 discloses that plaintiff purchased Ac.3.51 of land out of Ac.7.71 cents.

9

20.Perusal of Ex.A.2 and A3 discloses that plaintiff has got land to an extent of Ac.3.51 cents in S.No.350/2.

21.Perusal of Ex.A.4 certified copy of judgment and Ex.A.5 certified copy of decree in O.S.No.682/2007 discloses that defendant herein had filed suit against the plaintiffs herein in respect of suit schedule property and the same was dismissed against the plaintiffs herein.

22.Perusal of Ex.A6 and Ex.B1 deposition of deceased Mala

Govindamma discloses that Mala Govindamma has no knowledge about total extent in respect of survey number of suit schedule property and she and her husband never got measured the said land but Mala

Govindamma in her evidence had admitted that on the eastern side of plaint schedule property, defendants herein and others lands situated and in between the land of Mala Govindamma and defendant herein and others land there is a straight ridge.

23.Perusal of Ex.A7 discloses that defendants sold Ac.2.51 cents of land to L.Ramachandra Rao in respect of suit schedule survey number.

24.Perusal of Ex.A8 and A9 discloses that the same is not in respect of suit schedule property.

25. Pw.1 admitted that total extent in suit schedule survey number is Ac.7-71 cents and he purchased property under Ex.A1 from

Male Govindamma and others on 30th April, 1982 by the time he was residng at Guravareddipalem Village and thereafter he resided for 3 years in Nandanavanam Village of Nellore District and thereafter he shifted to

Hyderabad and that the sale transactions under Ex.A1 were looked after by his father and the registration was also done by his father in his presence and prior to purchase of property under Ex.A1 it was got 10 measured and the boundary stones were fixed on four sides and that four side boundaries were intact consisting of ridges on four sides as purchased by vendors under Ex.A1. Pw.1 expressed ignorance as to how much extent purchased by him from each of the vendors under Ex.A1.

Pw.1 admitted that contents mentioned in respect of Para No.7 of written statement filed by the defendant is correct. Pw.1 admitted further that plaintiffs got executed sale deed in the year 2007 in favour of one

Samanthapudi Samba Raju to an extent of Ac.2-98 cents and admitted that he deposed earlier in OS.682/2007 that the present suit schedule property was occupied by the plaintiffs therein I.e defendant herein and denied that he has got only Ac.2-98 cents of land and not Ac.3-51 cents of land.

26.Plaintiffs never pleaded that the suit schedule property under

EXA.1 prior to its purchase was got measured and the boundary stones were fixed on four sides and that four side boundaries were intact consisting of ridges on four sides as purchased by vendors under Ex.A1 either in the plaint or chief affidavit filed in lieu of chief examination of plaintiffs and said fact is disclosed for the first time during course of cross examination of PW.1 about taking measurement of suit schedule property prior to its purchase and about the fixing of boundaries stones on four sides and that four side boundaries were intact consisting of ridges on four sides as purchased by vendors under Ex.A1. Therefore the evidence of PW.1 clearly proves that plaintiffs has approached this court with unclean hands suppressing the true and material facts before this court.

27.Pw.2 is the 1st plaintiff reiterated the averments of the plaint and corroborated the version of Pw.1 in his chief affidavit filed in lieu of chief examination and deposed that he purchased property under Ex.A1 in the year 1982 and expressed ignorance about the details of sale transaction in respect of extent, boundaries of suit schedule property and 11 about the extent of land purchased specifically from each of the vendor by his father-in-law. Pw.2 admitted that he and the other plaintiffs cultivated the suit schedule property after 15 years from the date of purchase of suit schedule property and there is no documentary proof about the extent of land cultivated by him and the other plaintiffs.

28.Pw.2 admitted that land of defendant is existing towards eastern side of land of plaintiffs 2 and 3 and there is no occasion for the defendant to grab the land of the plaintiffs and admitted further that during life time of his father-in-law and during the cultivation period done by him as well as on the date of his deposition, the land and it's ridges towards eastern side is never disturbed by the defendant. Pw.2 admitted that he got mentioned in his chief affidavit filed in lieu of chief examination in OS.682/2007 filed by the defendant herein against the plaintiffs on the file of learned III Addl. Jr. Civil Judge seeking permanent injunction as not to disturb the ridges and to grab the suit schedule property. Pw.2 further admitted that at the time of sale of property to the plaintiffs under Ex.A1 their properties were got measured about 10 or 15 days prior to filing of the suit.

29.The evidence of Pw.1 and 2 clearly proving the fact that property under Ex.A1 was got measured prior to it's purchase and more particularly prior to date of filing of suit and therefore the contention of plaintiffs that suit schedule property was only got measured after it's purchase when plaintiffs intended to sell away the same to the

Samanthapudi Samba Raju and then the deficit extent to an extent of 53 cents was found in possession of the defendant by the surveyor in presence of plaintiffs and defendant is not tenable and same is a created and invented story by the plaintiffs for the purpose of suit as the plaintiffs as PW.1 had clearly and categorically admitted during his course of cross 12 examination that plaintiffs got executed sale deed in the year 2007 in favour of one Samanthapudi Samba Raju to an extent of Ac.2-98 cents and PW.1 had also admitted that he deposed earlier in OS.682/2007 that the present suit schedule property was occupied by the plaintiffs therein

I.e defendant herein is also proving that possession of suit schedule property was not in the hands of plaintiffs since year 2007 and the approach of plaintiffs before this court after lapse of prescribed period under section 6 of specific Relief Act is accordingly dis entitle the plaintiffs for seeking the relief under section 6 of specific Relief Act.

30.Pw.3 is independent witness who deposed that he is doing cultivation for the past 25 years and plaintiffs have got land in

Sy.No.350/2 to an extent of Ac.3-51 cents at Maddipadu Village and he has taken the said land on lease from one Kapa Venkata Reddy s/o Lakshma

Reddy in the year 1993 and 1994 and that Pw.3 has raised cotton crops in the above said land and has paid maktha to the said Kapa Venkata Reddy, s/o Lakshma Reddy for the above said period. Pw.3 deposed that suit schedule property is existing in Guravareddipalem village and the total extent is suit schedule survey number is Ac.7-71 cents and total extent of suit schedule property is Ac.3-51 cents and he never measured suit schedule property and he came to know about the extent of suit schedule property from Kapa Venkata Reddy and has no knowledge personally.

Pw.3 deposed that 1st plaintiff is his father-in-law and he married the daughter of 1st plaintiff. Pw.3 deposed that he has no documentary proof that he paid cash amount of Rs.5,000/- per acre of land in respect of suit schedule property to Kapa Venkata Reddy towards maktha.

31.The evidence of Pw.3 who is relative of 1st plaintiff and son-in- law of 1st plaintiff categorically disclosed that he has no documentary evidence that he cultivated AC.3-51 cents of land and that he paid 13

Rs.5,000/- per acre of land to Kapa Venkata Reddy towards maktha and that he has no knowledge personally about the total extent of suit schedule property and the extent of suit schedule property is only told to him by the Kapa Venkata Reddy. Therefore the evidence of Pw.3 is no way helpful to the plaintiffs to claim right, title and possession over suit schedule property.

32.Dw.1 is the defendant who examined himself and categorically deposed before this court and got marked Ex.B1 to B8. Perusal of Ex.B2 report of advocate commissioner discloses that the ridge is existing in between the land of the plaintiffs and defendant.

33.Perusal of Ex.B3 sale deed discloses that property sold is in respect of S.No.349 to an extent of Ac.2.31 cents and same is not in respect of suit schedule survey number.

34.Perusal of Ex.B4 field measurement is in respect of S.No.350 and not in respect of suit schedule property.

35.Perusal of Ex.B5 tax receipt discloses payment made by defendant for the tax in respect of S.No.350/2 and various other survey number.

36.Perusal of Ex.B7 discloses that defendant has got land to an extent of Ac.2.64 cents of land in S.No.350/2.

37.Perusal of Ex.B8 adangal copy discloses that 2nd plaintiff,

Samanthapudi Raju and Lavu Ramachandra Rao and Nallamalapu

Rajyalakshmi has got land in suit schedule survey number.

38.DW.1 deposed that Plaintiffs have purchased suit schedule property from one Male Govindamma under Ex.A1 and he was summoned by the plaintiffs for taking measurements by the surveyor, but denied that 14 after taking measurement by the surveyor in respect of property covered under Ex.A1 it was found that defendant had encroached 53 cents of land in Sy. No.350/2 out of Ac.3-51 cents of land.

39.Dw.1 admitted that he filed suit in OS.682/2007 on the file of learned III Addl. Jr. Civil Judge in respect of 53 cents of land against the plaintiffs herein and the said suit was dismissed seeking decree for permanent injunction and the appeal preferred against the decree and judgment in OS.682/2007 was also dismissed by Hon'ble II Addl. District and Sessions Judge, Ongole. There is a suggestion given to Dw.1 by the learned counsel for plaintiffs that defendant had encroached 53 cents of land out of Ac.3-51 cents of the plaintiffs during the absence of plaintiffs and that suit schedule property is the absolute property of the plaintiffs and same has to be delivered to the plaintiffs by the defendant, but it is pertinent to note that the year of said allegedly encroachment made by the defendant in respect of suit schedule property is not mentioned any where either in plaint or in chief affidavit filed in lieu of chief examination of Pw.1 to Pw.3, however Pw.3 in his evidence categorically admitted that he deposed in OS.682/2007 filed by the defendant herein against the plaintiffs herein on the file of learned III Addl. Jr. Civil Judge seeking permanent injunction discloses that defendant herein have allegedly occupied the suit schedule property was much prior to filing of the present suit. which means that the alleged encroachment of 53 cents of land was made more than 3 years from the date of filing of the suit which also proving the fact that the relief of declaration claiming title over suit schedule property is barred by limitation.

40.Dw.2 is the independent witness who deposed that he has got land to an extent of Ac.2-50 cents in his village and he is also cultivating lands of others on lease having pair of bullocks and that he has taken the 15 schedule land along with other land since 1992 to 1999 and personally cultivated schedule land with the help of bullocks and raised tobacco, red gram and at that time Pw.1 also cultivating the land and Anjireddy is ploughing the land and there is a well grown grass ridge existed between the lands of plaintiffs and defendant and the said ridge is in intact and that prior to the present lease, Dw.2 also ploughed the land of the defendant to an extent of Ac.3-40 cents for four years. Dw.2 admitted that defendant is his nearest relative and expressed ignorance that land of plaintiffs to an extent of 53 cents is encroached by the defendant and the said fact is known to entire village and Dw.2 came to know in the year 2007 that plaintiffs have sold away the suit schedule property to 3rd party and thereafter defendant filed suit in OS.282/2007. Dw.2 admitted the fact that father of 1st plaintiff during his life time had cultivated the suit schedule property and after his demise plaintiffs continue the cultivation of suit schedule property.

41.The evidence of Dw.2 is disclosing that he cultivated the schedule land along with other lands of defendant since 1992 - 1999 and his evidence was not destroyed by way of giving suggestion to Dw.2 by the learned counsel for the plaintiffs that he never took suit schedule property along with other lands of defendant on lease and never cultivated the schedule land since the year 1992 – 1999 which means that the evidence of Dw.2 about cultivation of schedule land and other land of defendant from the year 1992-1999 is admitted by the plaintiffs in possession of the defendant. Therefore the fact of alleged encroachment of 53 cents of land by the defendant coming to knowledge of plaintiffs when it was allegedly got measured by the surveyor in presence of plaintiffs and defendant at the time of alleged selling the land to

Samanthapudi Samba Raju is all created story invented for the purpose of the suit only to grab suit schedule property.

16

42.Dw.3 who is independent witness had deposed before this court that he got Ac.2-10 cents of land on the southern side of suit schedule property and the said property is purchased from it's land owner under registered sale deed covered under Ex.B3 and he used to cultivate the same by raising various crops and that defendant originally got schedule land along with other lands from his ancestors i.e., Gunduri

Venka Reddy, Gunduri Chimpiri Reddy, Bheemanadham Jali Reddy were constituting composite family and defendant has possessed Ac.3-40 cents in Sy.No.349 and Sy.No.350/2 and out of Ac.3-40 cents of land defendant had sold away an extent of Ac.2-85 cents in Sy.No.349 and Sy.No.350/2 and remaining suit schedule land to an extent of 53 cents is with the defendant in Sy.No.350/2 and there is a well grown grass ridge in between the land of plaintiffs and defendant and the said ridge is straight and intact and that plaintiffs possessed only one Gorru but not Ac.3-51 cents.

43.Dw.3 admitted that defendant has got land to an extent of

Ac.2-64 cents of Guravareddipalem and has got 21 cents of land in

Sy.No.349 which was sold away to one L. Ramachandra Rao s/o Ankamma

Chowday. Though Dw.3 admitted that Surveyor measured the land in the year 2007 and after surveying 53 cents of land was found in access in possession of defendant out of Ac.2-51 cents of land had also deposed that defendant had requested for 53 cents of land from the plaintiff at that stage, the present suit is filed by the plaintiffs due to grudge upon the defendant which is never the case of plaintiffs that the cause of action arose for filing the suit when defendant had requested the plaintiff for 53 cents of land ever to give to the defendant and therefore the said suggestion given to Dw.3 by the learned counsel for the plaintiffs is clearly denoting the fact that the suggestion given and the fact actually pleaded

before this court by the plaintiffs is quite contrary specifically regarding

cause of action and that the same is after thought of the plaintiffs for 17 creating new cause of action and new ground for filing the suit for the first time during the course of cross examination of Dw.3 and the said inconsistence pleas of the plaintiffs when compared to the evidence is also probablizing that case set up by the plaintiffs is false regarding the claim of title, right and possession over suit schedule property and plaintiff by taking in consistent pleas is only intending to grabf the suit schedule property by hook or crook..

44.Dw.4 is also independent witness categorically deposed before this court that he has got land on the north of suit schedule property by intervening the road to an extent of 2 cents and has cultivated the same personally and there is a demarcation of well grown grass ridge between the land of plaintiffs and defendant since times immemorial and the said ridge is in tact and that plaintiffs have been cultivating one Gorru by purchasing from Male Govindamma and the said Male Govindamma has only got one Gorru of land and not Ac.3-51 cents of land under Ex.A1.

45.Dw.4 admitted that plaintiffs purchased Ac.3-51 cents of land under Ex.A1 from Male Govindamma and the said Male Govindamma had sold away Ac.3-51 cents of land after measuring the boundaries and delivered the possession to the plaintiffs and that plaintiffs have let out the land to an extent of Ac.3.51 cents on lease to 3rd parties and expressed ignorance that out of Ac.3-51 cents of land it was found 53 cents of land deficit when the measurements were taken by the Mandal surveyor in the year 2007. The said suggestion given to Dw.4 by the learned counsel for the plaintiffs that 53 cents of land was found in deficit after taking measurements by the Mandal Surveyor in the year 2007 clearly proving the fact that the alleged encroachment made by the defendant is more than 3 years prior to filing of the suit and same disentitle the plaintiffs for seeking relief of declaration in respect of suit 18 schedule property.

46.The plaintiffs are claiming the relief of declaration as absolute owners of suit schedule property and for recovery of possession of suit schedule property directing the defendant to hand over the possessed to the plaintiffs.

47.To claim relief of declaration, the period prescribed for limitation is for 3 years and one has to approached the court within 3 years from the date of denial of title and dispossession from the property but in the given case at hand plaintiffs have approached this court after lapse of more than 3 years and there is no mention of date either in the pleadings of plaintiffs or in the chief affidavit filed in lieu of chief examination of Pw.1 to 3 about the fact of alleged encroachment over suit schedule property and dispossession of the plaintiffs in respect of suit schedule property and the said fact however disclosed during the course of cross examination to Dw.4 that the schedule of land was encroached by the defendant in the year 2007 and the same was traced out during taking measurements of land of the plaintiffs by the Mandal Surveyor and the said fact is similarly also admitted by Pw.3 in his course of cross examination in OS.682/2007 that defendant herein have encroached 53 cents of land and the evidence of Pw.2 clearly proving the fact that he cultivated the suit schedule property after 15 years from the date of his purchase along with other plaintiffs for 10 years and expression of ignorance by Pw.2 about the extent of land actually cultivated apart from sale transaction, extent, boundaries under Ex.A1 by Pw.2 who was very much present at the time of sale transaction of the property under Ex.A1 and the further admission of Pw.2 that defendant has no occasion to grab suit schedule property is clearly proving that suit schedule property and the property covered under Ex.A1 is not actually cultivated by the Pw.2 19 along with other plaintiffs and same is never encroached by the defendant and it further proves that there is no cause of action arose for the plaintiffs for filing present suit against the defendant and that plaintiffs have approached this court with false plea suppressing the true facts with unclean hands and therefore plaintiffs are not entitle for relief for declaration as absolute owner of suit schedule property.

Issues No.2 & 3 answered accordingly against plaintiffs.

48. Issue No.1: Defendant pleaded that there are also other land owners in respect of the suit schedule survey number by name Kanchi

Veera Reddy and Narayanamma, Nalamalapu Peddi Reddy, Samanthapudi

Samba Raju and Dr. Ramachandra Rao who are also proper and necessary parties to the suit but the said parties are not imp leaded by the plaintiffs in this suit and therefore this suit is bad for non joinder of proper and necessary parties.

49.It is admitted fact that total extent in suit schedule survey number 350/2 is to an extent of Ac.7-71 cents of land among which defendant, plaintiffs are the owners and PW.1 also admitted before this court during his course of cross examination that the contents of para

No.7 of written statement filed by the defendant is true and correct regarding the fact that land in Sy. No.350/2 an extent of Ac.7.71 cents and Sy. No.349 an extent of Ac.3.31 cents total Ac.10.02 cents land consisting a single plot under the ownership of late Kanchi Raghavulu.

The said fact is disclosing the R.S.R. and other revenue records. The said extent of Ac.10.02 cents comprised in Sy.Nos.349 and 350/2 devolved up on from late Kanchi Raghavulu as follows: (1) Kanchi Veera Reddy and

Narayanamma got an extent of Ac.1.56 cents Sy.No.350/2; (2)

Bheemanadham Venkata Subba Reddy got an extent of Ac.1.78 cents in

Sy.No.349(3); (3) Bheemanadham Jali Reddy got an extent of Ac.1.78 cents in Sy.No.349 Ac.033 cents and Sy.No.350/2 Ac.1.25 cents; (4) 20

Ganduri Chimpiri Reddy got an extent of Ac.0.38 cents in Sy.No.350/2; (5)

Ganduri Venkata Reddy got an extent of Ac.1.52 cents in Sy.No.350/2 and (6) Male Narapa Reddy (Govindamma) got an extent of Ac.3.00 cents.

Thus the land has been in their exclusive possession and enjoyment is proving the contention of defendant that apart from plaintiffs and defendant, there are other persons also having ownership in suit schedule survey number as disclosed in para No.7 of written statement filed by the defendant and the said fact is categorically admitted by the plaintiffs.

Therefore, the suit filed by the plaintiffs ignoring proper and necessary party in this suit considered to be suit is bad for non joinder of necessary and proper parties.

Issue answered accordingly against plaintiffs.

50. Issue No.4: In view of my findings given in issues No.2 and 3 the suit of the plaintiffs is and hereby dismissed.

In the result, suit is dismissed with costs.

Typed to my dictation by the Typist, corrected and pronounced by me in open Court, this the 28 th day of April, 2017.

Sd/-P.Lakshmi Kumari,

PRINCIPAL JUNIOR CIVIL JUDGE,

ONGOLE.

Appendix of Evidence

Witnesses examined

For Plaintiffs: PW-1: Kapa Lakshma Reddy PW-2: Nalamalapu Anjireddy PW-3: Kapa Srinivasula Reddy

For Defendant: DW-1: Ganduri Subba Reddy DW-2: Sunkara Seshi Reddy DW-3: Nalamalapu Peddi Reddy DW-4: Kanchi Venkata Subba Reddy Documents marked For Plaintiffs: Ex.A1: Certified copy of sale deed dt.30.04.1981 in favour of plaintiffs. Ex.A2: Certified copy of adangal issued by the revenue department. Ex.A3: Certified copy of 1-B register issued by the revenue department. Ex.A4: Certified copy of Judgment in O.S.No.682/2007 on the file of III- Addl. Junior Civil Judge, Ongole, dt.20.09.2011. Ex.A5: Certified copy of judgment and decree in A.S.No.55/2011 on the file of I-Addl. District Judge, Ongole, dt.21.09.2012. Ex.A6: Certified copy of deceased Male Govindamma in O.S.No.682/2007 on the file of learned III Addl. Junior Civil Judge's Court, Ongole.

21

Ex.A.7: Certified copy of Registered sale deed dt.23.07.2007 under document No.7200/2007. Ex.A.8: Adangal Pahani in Sy.No.349. Ex.A.9: Adangal Pahani in Sy.No.350/1. For Defendant: Ex.B1 : Certified copy of deposition of late Male Govindamma, dt.04.08.2011. Ex.B2 : Certified copy of commissioner report only, dt.22.08.2007. Ex.B3 : Certified copy of registered sale deed in favour of Nalamalapu Peddi Reddy with typed copy, dt.01.05.1986. Ex.B4 : FMB copy for Sy.No.350 of Maddipadu village, dt.11.07.2016. Ex.B5 : Certified copy of tax receipt in favour of defendant, dt.26.05.1984. Ex.B6 : Certified copy of representation by the defendant, dt.10.07.2007. Ex.B7 : Certified copy of 1B Form (ROR), dt.28.11.2011. Ex.B8 : Mee Seva Copy of adangal pahani for Sy.No.350/2, dt.17.12.2016.

Sd/-P.Lakshmi Kumari,

PRINCIPAL JUNIOR CIVIL JUDGE,

ONGOLE.

// True Copy //

Prl. Junior Civil Judge,

Ongole.

22 1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: ONGOLE

Present: Smt P. Lakshmi Kumari,

Principal Junior Civil Judge, Ongole

Friday this the 28th day of April, 2017

Original Suit No.125 of 2011

Between:

1. Nalamalapu Anji Reddy, S/o Venkataswamy Reddy, aged 60 years, Hindu, Cultivation, R/o Guravareddypalem village, h/o Nelatur village, Maddipadu Mandal, Prakasam District.

2. Kapa Sreenivasula Reddy, S/o late Venkata Reddy, aged about 37 years, Hindu, Cultivation, R/o Guravareddypalem village, h/o Nelatur village, Maddipadu Mandal, Prakasam District.

3. Kapa Lakshmana Reddy, S/o late Venkata Reddy, aged about 40 years, Hindu, Cultivation, R/o Guravareddypalem village, h/o Nelatur village, Maddipadu Mandal, Prakasam District. … Plaintiffs.

And

Gunduri Subba Reddy, S/o Anji Reddy, aged 59 years, Hindu, Cultivation, R/o Guravareddypalem village, h/o Nelatur village, Maddipadu Mandal, Prakasam District.---Defendant.

Suit filed for declaration that the plaintiffs are the absolute owners of the plaint schedule property by directing the defendant to hand over the possession of the schedule property to the plaintiffs and for costs. Plaint presented on: 24.03.2011 and filed on: 28.03.2011.

Valuation and Court Fee: The suit is filed for declaration and possession of the suit schedule property. As per the SRO, valuation certificate one acre land is Rs.65,000/-, Value of the plaint schedule property is Ac.0.53 cents is Rs.34,450/-, on which a court fee of Rs.1966/- is paid U/sec.24(a) of A.P.C.F and S.V. Act.

Cause of Action: Cause of action for the suit arose when the plaintiffs purchased the land in S.No.350/2 for an extent of Ac.3-51 cents through registered sale deed dt.30.04.1981 and since the date of purchase the plaintiffs are in peaceful possession and enjoyment the same with absolute rights, that the revenue records are in the names of the plaintiffs, when the plaintiffs sold the property came to know that Ac.0- 53 cents are in the possession of the defendant, when the surveyor measured the land and came to conclusion that an extent of Ac.0-53 cents is in the land of the defendant, when the plaintiffs requested to hand over the plaint schedule property to them and gave legal notice on 19-5-2007 but in vain, when the defendant sold his land leaving Ac.0-53 cents and claiming himself as Maddipadu village within the jurisdiction 1 2 of this court. The suit coming on 07.04.2017 before me for final hearing in the presence of Sri G.V.Narendra Babu, Advocate for the Plaintiffs and Sri J.Prabhakara Reddy, Advocate for the defendant; upon hearing the arguments and having stood over for consideration till this day, this court doth order and decree:

1. that the suit be and the same is hereby dismissed; and

2. that the plaintiffs do pay to the defendant a sum of Rs.3551/- towards costs of the suit, bearing their own costs of Rs.5603/-.

(Plaint schedule is herewith enclosed) Given under my hand and the seal of the court, this the 28 th day of April, 2017.

Sd/-P.Lakshmi Kumari,

PRL. JUNIOR CIVIL JUDGE,

ONGOLE.

//TABLE OF COSTS//

For PlaintiffsFor (Rs.)Defendant (Rs.) Stamp on Vakalat2-00 2-00 Stamp on Plaint1966-00- Stamp on Petition-- 4-00 Stamp on process 90-00 - Advocate Fee 3445-003445-00 Typing charges 100-00 100-00 Total Rs 5603-00 3551-00

Sd/-P.Lakshmi Kumari,

P.J.C.J., ONGOLE.

NOTE: The exhibited documents and non-exhibited documents, which are marked, have to be taken back by the parties concerned within the stipulated time with an undertaking to produce the same as and when required by the Court.

// True Copy //

Prl. Junior Civil Judge,

Ongole.

2

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: ONGOLE

Present: Smt P. Lakshmi Kumari,

Principal Junior Civil Judge, Ongole

Friday, this the 28th day of April, 2017

Original Suit No. 531 of 2011

Between:

Ravi Narasinga Rao, S/o Narayana, Aged 60 years, Hindu, Cultivation, R/o Jammulapalem village, Tangutur Mandal,

Prakasam District. ... Plaintiff.

And

Ravi Venkateswarlu, S/o Narayana, Aged 55 years, Hindu, Cultivation, R/o Jammulapalem village, Tangutur Mandal, Prakasam District. ---Defendant.

The suit is coming on 20.04.2017 before me for final hearing in the presence of Sri M.Gangadhara Rao, Advocate for the Plaintiff and of Sri

M.V.Krupa Sagar, Advocate for Defendant and upon hearing the arguments and having stood over for consideration till this day, this Court delivered the following:

// J U D G M E N T //

01. Suit for permanent injunction restraining the defendant and his associates from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule properties and to declare that the acts of the defendant is illegal and for mandatory injunction directing the defendant to remove the X, X1 wall in item No.2 of the suit schedule property, if the defendant fails to do so, the same may be done through process of law and for costs.

02.The brief averments of the plaint are as follows:

It is the specific case of the plaintiff that the plaintiff and defendants are brothers. They partitioned the family properties long time back and 2 got pattadar pass books and title deeds in favour of them. The plaintiff is the owner of the suit schedule properties item Nos.1 and 2. Item No.1 of suit schedule property is Ac.0.80 cents in S.No.1410 of Jammulapalem.

The plaintiff raised barns and shed in item No.1. The remaining land in

Item No.1 is cultivating land. Now the plaintiff raised fodder crop in the land. The defendant is the east-west and southern side owner of item

No.1. The defendant is used to obstructing the plaintiff to enter into item

No.1 of suit schedule property to reach barns and shed for cultivating and other tobacco works through the western side donka.

The item No.2 of the suit schedule property is the vacant site of the plaintiff in S.No.1397/1. The plaintiff used the vacant site and used the site for hayrick. The defendant is the southern side boundary owner of item No.2. the defendant constructed building in the southern side of item No.2. Two days back the defendant is trying to construct the compound wall in northern side of his building by occupying the plaintiff land. The defendant have no right in item Nos.1 and 2 of the suit schedule properties. As the schedule property is his share, the sale deed are in his custody. The revenue authorities also recognized the possession of the plaintiff and issued pattadar pass book and title deed in favour of the plaintiff for item No.1 of the suit schedule property. As item No.2 of suit schedule property is house site, the revenue authorities did not issue any document. The plaintiff used item No.2 for storing hayrick and other agricultural operations. The defendant have no right, title or interest in the schedule property. The defendant without any right, for the last 2 days he is canvassing in the village that he will interfere with the possession and enjoyment of the plaintiff and also canvassing in the village that he will encroach some site on the southern side of the plaintiff site i.e., item No.2. The plaintiff cannot resist the illegal acts of the defendant.

3

The plaintiff is the owner of item No.2 of the suit schedule property.

The defendant is the southern boundary owner of item No.2 of the suit schedule property. After filing of the suit the defendant high handedly constructed a compound wall from west to east by encroaching the site of the plaintiff with a width of 2 ½ feet and 15 feet length. The defendant has no right to encroach the site of the plaintiff i.e., item No.2 of the plaint schedule property. The wall constructed by the defendant shown as X, X1 has to be removed by way of mandatory injunction. The plaintiff orally requested and sent mediators to remove the X, X1 wall, but the defendant did not give proper reply. Hence the suit.

03.The defendant filed written statement denying the plaint averments and submitted that the defendant filed a plan along with this written statement. The 'A' marked portion is a old house of the plaintiff fell to his share in the partition. The 'B' marked portion is old house fell to the share of defendant in the partition. Subsequently defendant constructed the 'C' marked house north to 'B' marked house. There is a vacant site shown as

D, D1 belongs to Kothapalli Venkateswarlu and Rangaiah who are the brother-in-laws of the defendant. The property is in possession and enjoyment of the defendant. The E, E1 marked portion is the property belongs to Kothapalli Narasimha, brother-in-law of plaintiff. The plaintiff is enjoying the eastern side portion by keeping his hayrick and the said

Kothapalli Narasimha enjoying the 'E' marked portion by having custom and tethering cattle. The Y, Y1 is the demarcating line between 'E' marked portion and 'D' marked portion. In between Y, Y2 Kothapalli Narasimha put up thatties. Due to merging of 'D' series property with B & C marked portion the north-eastern corner is cutaway. As per vasthu defendant wants to put up a wall all along X, X1 without touching the Y, Y1 line. For this the plaintiff unnecessarily raising objection. There is a property stands 4 in the name of the plaintiff and defendant's mother. It was specifically agreed that after the life time of the mother this property has to be partitioned in between the plaintiff and the defendant. The defendant demanded for the same. For that the plaintiff bore grudge against the defendant. With regard to the site i.e., adjacent to the barns item No.1 the plaintiff tried his level best to create new ways and also tried to encroach the site adjacent to the barns of the defendant. In this attempt the plaintiff is also failed. In the existing barn in possession of the plaintiff, the defendant is having half share. The plaintiff is evading to give that half share to the defendant. The defendant reserves his right to initiate proceedings for partition of the mother's property and half of the barn which is in joint and constructive possession of the plaintiff and defendant. There are no valid grounds to entertain the suit. The suit is misconceived. There is no cause of action for the plaintiff for filing the suit.

04.The defendant filed additional written statement and submitted that a new fact was alleged in the neat copy of the plaint at para-III(c) that the plaintiff is the owner of item No.2 of the suit schedule property. The defendant is the southern boundary owner of item No.2 of the suit schedule property. After filing of the suit the defendant high handedly constructed a compound wall from west to east by encroaching the site of the plaintiff with a width of 2 ½ feet and 15 feet length. The defendant has no right to encroach the site of the plaintiff i.e., item No.2 of the plaint schedule property. The wall constructed by the defendant shown as X, X1 has to be removed by way of mandatory injunction. The plaintiff orally requested and sent mediators to remove the X, X1 wall, but the defendant did not give proper reply and for mandatory injunction directing the defendant to remove the X, X1 wall in item No.2 of the suit schedule 5 property. If the defendant falls to do so, the same may be done through process of law.

The plaintiff filed I.A.154/2012 for appointment of an advocate commissioner and that was dismissed on contest on 20.03.2012. Again another I.A.320/2012 was filed for appointment of advocate commissioner for the purpose of amending the plaint for mandatory injunction and that application was also dismissed. As on the date of filing of the suit itself, the disputed X, X1 wall is in existence. The plaintiff alleged that the defendant made encroachment into his site and constructed X, X1 wall.

The plaintiff specifically admitting that he lost his possession due to encroachment made by the defendant. He sought for the relief of mandatory injunction only. The construction is in existence even on the date of filing of the suit. The suit was filed in the year 2011. The relief of mandatory injunction itself is barred by time. The plaintiff is not entitled for the relief of mandatory injunction as prayed for.

05.The following issues are settled for trial :

1. Whether the plaintiff has been in possession and enjoyment of suit schedule property as on the date of filing of suit ?

2. Whether defendant interfered unlawfully ?

3. Whether the plaintiff is entitled for permanent injunction as prayed for ?

4. To what relief ?

Additional Issues:

1) Whether plaintiff is entitled for decree for mandatory injunction against the defendant as prayed for?

2) To what relief?

06.On behalf of Plaintiff, Pw.1 was examined and Exs.A.1 to A.5 were marked. On behalf of defendants Dws 1 and 2 were examined and

Exs.B.1 and B.2 were marked.

07. Heard on both sides.

6 08. ISSUE Nos.1 to 3: Since these issues are interconnected this court intends to answer them together.

It is the specific case of petitioner that he and defendant are brother and have partitioned the family properties long time ago enjoying their respective shares of properties and has got pattadar pass book and title deed in their favour and that father of the plaintiff had purchased item

No.1 of suit schedule property under various sale deeds and petitioner is owner of suit schedule property item No.1 and 2 and that item No.1 of suit schedule property is to an extent of 80 cents in S.No.1410 of

Jammulapalem and plaintiff has raised tobacco barn and shed and remaining land in item No.1 is cultivating land in which plaintiff has raised fodder crops. Defendant who is having land towards east, west and south of item No.1 is causing obstruction to the plaintiff to enter into item No.1 of suit schedule property from western side of the land of plaintiff to reach tobacco barn and shed. That item No.2 of suit schedule property is vacant site in S.No.1397/1 and plaintiff is using these said vacant land for accumulation of hayrick and that defendant who is southern side boundary owner of item No.2 had constructed the building two days prior to filing of the suit and while making construction of his building , defendant attempted to construct compound wall in northern side of his building by occupying the land of plaintiff and that defendant subsequent to the filing of suit had highhandedly constructed compound wall from west to east by encroaching site of the plaintiff to an extent of 2 ½ feet and 15 feet length and that defendant has no right to encroach the site of plaintiff in item No.2 of suit schedule property and that wall constructed by the defendant shown as X, X1 has to be removed as it is constructed illegal in item No.2 of suit schedule property.

09.It is the specific case of defendant that as per the written 7 statement plan A marked portion is old house of plaintiff fell to his share in the partition and that B marked portion is old house fell to the share of defendant and subsequently the defendant constructed C marked house north to B marked house. There is a vacant site shown as D, D1 belong to

Kothapalli Venkateswarlu and Rangaiah who are brother-in-laws of defendant and the said property is in possession and enjoyment of defendant. E, E1 marked partition of the property belongs to Kothapalli

Narasimha brother-in-law of plaintiff and that plaintiff is enjoying the eastern side portion by storing hayrick and the said Kothapalli Narasimha is enjoying E marked portion by raising costom and tethering cattle. The

Y, Y1 is demarcating line between E marked portion and D marked portion and in between Y, Y2 Kothapalli Narasimham put up thattis and due to merging of D series property with B and C marked portion, the north east corner is cut away and that as per vasthu defendant has to put up wall all along X, X1 without touching the Y, Y1 line for which plaintiff unnecessarily raising the objection. That site adjacent to the tobacco barn in item No.1 of suit schedule property, plaintiff tried his level best to create new ways and also tried to encroach the site adjacent to the barn of the defendant in which plaintiff failed and that in the said tobacco barn defendant is having half share in which plaintiff avoiding to give the share to the defendant. Plaintiff is also avoiding to partition the property of mother of plaintiff and defendant which was specifically agreed that after the life time of mother of the plaintiff and defendant, her property has to be partitioned equally between plaintiff and defendant and when defendant demanded for partition, the plaintiff bore against the defendant and suppressing the true facts the present suit is filed against the defendant and that defendant never encroached any site in item No.2 of suit schedule property to an extent of 2 ½ feet and 15 feet length by constructing compound wall from east to west on the southern side of 8 item No.2 of suit schedule property and that X, X1 wall was very much in existence as on the date of filing suit itself and that the relief of mandatory injunction is barred by limitation.

10.Plaintiff to substantiate his contention had examined himself

before this court and reiterated averments of the plaint and got Ex.A1 to

A5. PW1 admitted that defendant is his younger brother and there was partition deed in respect of family ancestral property between plaintiff and defendant and one Kothapalli Somaiah, Kothapalli Tirupathaiah. PW1 deposed that defendant constructed X, X1 wall of plaint plan subsequent to the suit and admitted that he has sought for appointment of advocate commissioner vide I.A.No.154/2012 in this suit to note down the physical features of suit schedule property and about the construction of wall raised by the defendant subsequent to the suit. PW1 admitted that he never approached the surveyor for measurement of site in item No.1 of suit schedule property. PW1 deposed that on the western side boundary for the land of defendant referred as ridge is the public bazaar as ingress and egress. PW1 admitted that site of defendant is towards southern side of site of the plaintiff in item No.2 of suit schedule property. No suggestion given to the PW1 by the learned counsel for defendant that X,

X1 wall of plaint plan constructed by the defendant is not subsequent to filing of the suit and that the same is not encroached into the land of plaintiff in item No.2 of suit schedule property to an extent of 2 ½ feet and 15 feet length by constructing compound wall from east to west on the southern side of item No.2 of suit schedule property.

11.Defendant as DW1 admitted the fact that plaintiff is owner and possessor item No.1 and 2 of suit schedule property and same is fallen to the share of plaintiff in the family partition. DW1 admitted that on 9 the western side of his land there is a ridge and thereafter agricultural land in existence belonging to one Chevuturi Pullaiah. DW1 admitted further that in between his land and the land of the plaintiff towards his northern side there is a passage proceeding from east, west to reach tobacco barn and shed and plaintiff has also got land on the northern side of his land. DW1 admitted further that item No.2 of suit schedule property is the absolute property of plaintiff and same is a vacant site and defendant is residing on the southern side of item No.2 of suit schedule property and to his southern side there is a house of the plaintiff and same is in dilapidated condition and plaintiff is using the said land for storing the hayrick and using for agricultural operation implement. DW1 admitted further that on the western side of item No.2 there is a site of

Kothapalli Venkata Narasaiah and towards northern side of item No.2 and there is a tobacco barn one Ravi Yogaiah and there is a road on the eastern side of his site and to the site of plaintiff and that he constructed a house on the western side and there is a compound wall constructed proceeding from east to west in between his property and item No.2 of suit schedule property and plaintiff had filed application seeking amendment for relief of mandatory injunction for removal of newly constructed wall in between his property and item No.2 of suit schedule property subsequent to filing of the suit vide I.A.2550/2014 and same was allowed .

12.DW2 is the independent witness who also admitted fact that southern boundary owner for item No.2 of suit schedule property is the property of defendant and defendant is constructed a compound wall proceeding from east to west on the north east corner of house. DW2 admitted that plaintiff and defendant had got right in S.No.1410 in item

No.1 of suit schedule property and expressed ignorance about the existence of donka on the west of defendant land from south to north 10 under Ex.A2 to A4. DW2 admitted that plaintiff uses the passage towards western side and turn towards east to reach his agricultural land and tobacco barn in item No.1 of suit schedule property.

13.Learned counsel for plaintiff argued that construction of compound wall X, X1 of plaint plan is made subsequent to filing of the suit by the defendant encroaching the land of the plaintiff in item No.2 of suit schedule property on its southern side proceeding from west to east to an extent of 2 ½ feet width and 15 feet length and that defendant is also obstructing the plaintiff to proceed into his land from western side donka for reaching his land for carrying out agricultural operation and tobacco barn and shed.

14.Learned counsel for defendant argued that X, X1 wall constructed is much prior to filing of the suit and same is very much with in knowledge of the plaintiff while making construction and that the present suit is filed only to cause inconvenience to the defendant when defendant demanded for the partition of the property of the mother of the defendant at that stage due to grudge upon the defendant the present suit filed and that no land of the plaintiff to encroach on the southern side of item No.2 of suit schedule property.

15.Learned counsel counsel for defendant further argued that plaintiff by taking advantage of weakness of the defendant in the evidence of defendant cannot seek to prove the pleading of the plaintiff and that plaintiff has to prove his case by standing on his own proof and that the pleading pleaded on the evidence lend by the plaintiff having no connectivity and Ex.A2 to A5 relevancy is not disclosed by the plaintiff as to how Ex.A2 to A5 are relevant to the suit schedule property and that the 11 boundaries mentioned under Ex.A2 to A5 and suit schedule boundaries are not different and relied upon citation K.Venkatasubba Reddi Vs.,

Bairagi Ramaiah, died, his L.Rs. and Others reported in Law

Summary (A.P) 1999(1), wherein it is held that the disputes to a strip of open site admeasuring 4 ft North-South and 45 ft East-West situated in between the sites of the plaintiff and the defendant, in Venkatagiri village.

16.The plaintiff can succeed on the weakness of the defendant's case when he failed to establish his own case on the strength of his own title deed.

17.In suit for declaration of title, the plaintiff must succeed in establishing his title irrespective of the question whether the defendant has proved his case or not.

For the foregoing reasons, I hold that the plaintiff failed miserably to establish his title to the suit property and as such he is not entitled for the reliefs claimed by him in the suit and the appeal has to be allowed.

18.Learned counsel for the defendant further relied upon 2014

(2) ALD 103 (SC), reported in Sebastiao Luis Fernandes (dead)

thr. and others vs., K.V.P. Shastri (dead) thr. L.Rs and others, wherein it is held that courts below erred in decreeing suit assuming certain facts which are not in existence, by misreading pleadings that there was admission of title of plaintiff by defendant and placing onus of proof on defendants. It was upon plaintiff to furnish proof regarding his ownership.

19.Learned counsel for the defendant further relied upon Union

of India and others vs., Vasavi Co-op. Housing Society Ltd., and

others reported in 2014 (2) ALD 157 (SC), wherein it is held that 12 entries in revenue records- Would not confer any title.

20.Absence of any mention about suit land in said document. No acceptable explanation given by plaintiff to explain away such conspicuous omission. Doubt cast on title of plaintiff over suit land.

Decreeing suit by finding weakness in evidence of defendant. Improper plaintiff has to succeed only on strength of his case and not on weakness of case set up by defendant. Plaintiff held, failed to establish his title and possession of suit land.

21.We reiterate that the plaintiff has to succeed only on the strength of his case and not on the weakness of the case set up by the defendants in a suit for declaration of title and possession.

22.Learned counsel for the defendant further relied upon 2014

(4) ALD 43 (SC) Rajasthan State TPT Corpn. and another Vs.,

Bajrang Lal, where in it is held that Civil Procedure Code 1908 – Order 6

Rule 2 – Pleadings – If not complete, Court under no obligation to entertain pleas – A party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in plaint.

The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law.

23.Learned counsel for the defendant further relied upon AIR

1971 Andhra Pradesh 74 Chitturi Perraju and another, Vs.,

Yednapudi Venkamma and others, wherein it is held that Evidence Act (1872), S.95 – Description of property in document – boundaries given will precision – Boundaries prevail even if there is some discrepancy about actual extent of land.

13

24.It is admitted fact that plaintiff and defendant has got respective shares in the family partition among their family and that suit schedule property item No.1 and 2 fell to the share of plaintiff in the said family partition.

25.The question before this court is whether the X, X1 wall of plaint plan constructed is in either the land of plaintiff or land of the defendant and whether the said X, X1 wall constructed subsequent to the filing of the suit by the defendant.

26.DW1 in his evidence has categorically admitted that he constructed compound wall subsequent to the suit and there is a petition filed by the plaintiff seeking amendment for relief of mandatory injunction for removal of newly constructed wall in between his property and item No.2 of suit schedule property subsequent to filing of the suit vide I.A.2550/2014 and same was allowed which discloses that the construction of compound wall is only subsequent to the suit and there is no dispute about the said fact. Defendant though alleged that the construction of compound wall towards southern side of item No.2 of suit schedule property is prior to filing of the suit but the said fact is not proved by the defendant. DW2 who is independent witnesses also admitted that the fact of construction of compound wall towards southern side of item No.2 of suit schedule property proceeding from west to east towards northern side corner of his house as to the same is constructed subsequent to filing of the suit. The evidence of DW2 clearly discloses that he is not disputing the fact of construction of compound wall by the defendant subsequent to filing of the suit although dW2 had specifically stated that the said compound wall is constructed 10 years prior to filing of the suit. It is never the contention of defendant that the said 14 compound wall constructed on the southern side of item No.2 of suit schedule property is 10 years prior to filing of the suit. Therefore, the evidence of DW2 clearly discloses that he is speaking lie before this court about the fact of construction of compound wall about 10 years prior to filing of the suit.

27.Non giving any suggestion about the fact of construction of compound wall given to the PW1 by the learned counsel for defendant that X, X1 wall of plaint plan constructed by the defendant is not subsequent to filing of the suit and that the same is not encroached into the land of plaintiff in item No.2 of suit schedule property to an extent of 2 ½ feet and 15 feet length by constructing compound wall from east to west on the southern side of item No.2 of suit schedule property is clearly disclosing the fact that defendant is not disputing the compound wall construction and about the encroachment made by the defendant on the southern side of item No.2 of suit schedule property and same is clear admission on the part of defendant about encroachment made by the defendant into the land of plaintiff in item No.2 of suit schedule property.

28.The admission of DW1 during his course of cross examination that item No.1 and 2 of suit schedule property is the property of plaintiff and plaintiff got the same in family partition and that item No.2 of suit schedule property is the absolute property of the plaintiff and same is vacant site used for storing hayrick and agricultural operation implement is clearly proving the fact that plaintiff is in possession and enjoyment over the suit schedule property.

29.The further admission of DW1 that plaintiff has got land on the northern side of land of defendant and expression of ignorance by DW1 15 about date, month and year of construction of compound wall towards his northern side in between his property and item No.2 of suit schedule property is clearly proving the fact that the said compound wall constructed on the southern side of item No.2 of suit schedule property is subsequent to the filing of the suit and prior to that plaintiff was very much in possession and enjoyment over the X, X1 wall. Defendant did not dispute that X, X1 wall constructed is not in the land of plaintiff in item

No.2 and no suggestion given to that effect X, X1 compound wall constructed is not the encroached portion into the land of plaintiff.

Therefore with the above said discussion it is held that X, X1 wall constructed by the defendant is on the land of plaintiff in item No.2 of suit schedule property. Issues 1 to 3 are answered accordingly in favour of plaintiff and against defendant.

30.ADDITIONAL ISSUE NO.1:

Plaintiff submitted that subsequent to filing of the suit defendant constructed compound wall by encroaching land of the plaintiff on the southern side of item No.2 of suit schedule property to an extent of 2 ½ feet width and 15 feet length proceeding from east to west and accordingly petition was filed by the plaintiff seeking amendment vide

I.A.2550/2014 for relief of mandatory injunction and accordingly, petition of the plaintiff was allowed.

31.Defendant submitted that the relief of mandatory injunction for removal of X, X1 wall of plaint plan is barred by limitation as the X, X1 wall is in existence prior to filing of the suit and plaintiff has knowledge of the said fact but has not objected for construction of the compound wall shown in X, X1 and now the plaintiff came with false plea only to cause inconvenience to the defendant.

16

32.Perusal of counter in I.A.2550/2014 filed by the defendant herein discloses that no date, month and year mentioned with regard to construction of compound wall on the northern side building of the defendant which is in between the item No.2 of suit schedule property on the southern side and property of the defendant on its northern side and there is no denial of the fact that X, X1, X2 marked wall is constructed prior to filing of the suit, except the fact that construction is even as on the date of filing the suit and the nature of construction disclose is either compound wall or the house construction. It is not the contention of the defendant that construction of X, X1 wall of plaint plan is much prior to filing of the suit and defendant in turn at para 8 of written statement admitted the fact that he intends to put up wall all along X, X1 without touching Y, Y1 line which itself proving the fact that by the date of filing the suit X, x1 wall was not put up by the defendant and same was constructed subsequent to filing the suit and therefore the contention of the defendant that X, x1 wall was in existence much prior to filing of the suit is not tenable. There is no denial about the extent of length and width of encroachment specifically while making construction of compound wall on the southern side of item No.2 of suit schedule property by the defendant in making construction of X, X1 compound wall which also proves that the X, X1 wall construction is made upon encroachment into item No.2 of suit schedule property on its southern side. The admission of DW1 that item No.1 and 2 of suit schedule property is very much in possession and enjoyment of the petitioner and the same is absolute property of plaintiff leaves no doubt that plaintiff is not the owner and possessor of suit schedule property including encroached portion in X, X1 wall and accordingly this court with the above said discussion is of opinion that the relief of mandatory injunction is within the 17 limitation and plaintiff proved the encroachment made into item No.2 of suit schedule property on its southern side of defendant in making construction of X, X1 compound wall and therefore, plaintiff is entitled for relief of mandatory injunction for removal of X, X1 wall of plaint plan.

Additional issue No.1 answered in favour of plaintiff and against

defendant.

33. Issue No.4 and additional issue No.2:

In view of my findings given in issue No.1 to 3 and additional issue

No.1 the suit of the plaintiff is and hereby decreed with costs granting permanent injunction in favour of the plaintiff restraining the defendant from causing any sort of interference of obstruction in the possession and enjoyment of the plaintiff in respect of suit schedule property. Suit is further decreed for the relief of mandatory injunction directing the defendant to remove the construction of X, X1 wall in item No.2 of suit schedule property.

34.In the result, suit is decreed with costs in favour of the plaintiff and against defendant granting permanent injunction in favour of the plaintiff restraining the defendant from causing any sort of interference and obstruction in the possession and enjoyment of the plaintiff in respect of suit schedule property. Suit is further decreed for the relief of mandatory injunction directing the defendant to remove the construction of X, X1 wall within three months from the date of judgment in item No.2 of suit schedule property and in failure to do so by the defendant, plaintiff is entitled to do so through the process of court.

Typed to my dictation by the Senior Assistant, corrected and

pronounced by me in open Court this the 28 th day of April, 2017.

Sd/-P.Lakshmi Kumari,

PRINCIPAL JUNIOR CIVIL JUDGE,

ONGOLE.

18

Appendix of Evidence Witnesses examined For Plaintiff:

PW.1 : Ravi Narasinga Rao

For Defendants:

DW.1 : Ravi Venkateswarlu

DW.2 : Ravi Yogaiah

Documents marked For Plaintiff: Ex.A.1 : Pattadar pass book.

Ex.A.2 : Registered sale deed dt.10.05.1934.

Ex.A.3 : Registered sale deed dt.05.04.1949.

Ex.A.4 : Registered sale deed dt.25.06.1958.

Ex.A.5 : Photos-6 in number with CD and receipt.

For Defendants: Ex.B.1 : Registered sale deed executed by Venkata Subbaiah, dt.17.09.1980. Ex.B.2 : Registered sale deed executed by Bezawada Venkata Subbaiah, dt.17.09.1980.

Sd/-P.Lakshmi Kumari,

P.J.C.J.,

ONGOLE.

// True Copy //

PRINCIPAL JUNIOR CIVIL JUDGE,

ONGOLE.

19

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: ONGOLE

Present: Smt P. Lakshmi Kumari,

Principal Junior Civil Judge, Ongole

Friday, this the 28th day of April, 2017

Original Suit No. 531 of 2011

Between: Ravi Narasinga Rao, S/o Narayana, Aged 60 years, Hindu, Cultivation, R/o Jammulapalem village, Tangutur Mandal,

Prakasam District. ... Plaintiff.

And

Ravi Venkateswarlu, S/o Narayana, Aged 55 years, Hindu, Cultivation, R/o Jammulapalem village, Tangutur Mandal, Prakasam District.---Defendant.

Suit for permanent injunction restraining the defendant and his associates from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule properties and to declare that the acts of the defendant is illegal and for mandatory injunction directing the defendant to remove the X, X1 wall in item No.2 of the suit schedule property, if the defendant fails to do so, the same may be done through process of law and for costs.

Date of Presentation: 24.10.2011 Date of Filing: 24.10.2011

Valuation & Court fee: The relief of permanent injunction is valued at Rs.10,000/- on which a Court fee of Rs.786/- is paid U/Sec.26 (C) of A.P.C.F & S.V. Act.

Cause of Action: The cause of action for the suit arose, when the plaintiff and defendant partitioned the family properties orally long time back, when the suit schedule properties are fell to the share of plaintiff, when the plaintiff is in possession and enjoyment of the suit schedule property, when the defendant without any right, for the last 2 days is trying to interfere with the possession of the plaintiff and also trying to encroach te southern side portion of item No.2 of the suit schedule property, when the defendant without any right encroached the site of the plaintiff and constructed X, X1 wall, when the plaintiff orally requested and sent mediators, when the defendant did not give proper reply, when the wall constructed by the defendant i.e., X, X1 wall has to be removed by way of mandatory injunction, when the defendant have no right, title in the suit schedule property, when the defendant translate their words into action the plaintiff cannot resist and at Jammulapalem village within the jurisdiction of this court.

The suit is coming on 20.04.2017 before me for final hearing in the presence of Sri M.Gangadhara Rao, Advocate for the Plaintiff and of Sri M.V.Krupa Sagar, Advocate for Defendant and upon hearing the arguments and having stood over for consideration till this day,this Court doth order and decree:

20

1. that the defendant be and is hereby restrained from causing any sort of interference and obstruction in the possession and enjoyment of the plaintiff in respect of suit schedule property by way of permanent injunction;

2. that the defendant be and is hereby directed to remove the construction of X, X1 wall within three months from the date of judgment in item No.2 of suit schedule property and in failure to do so by the defendant, plaintiff is entitled to do so through process of court; and

3.that the defendant do also pay to the Plaintiff a sum of Rs.4,013/- towards costs of the suit; bearing his own costs of Rs.3,104/-. (Plaint schedule and rough plan are here to attached )

Given under my hand and the seal of the Court, this the 28 th day of April, 2017.

Sd/-P.Lakshmi Kumari,

PRL. JUNIOR CIVIL JUDGE,

ONGOLE.

//TABLE OF COSTS//

For PlaintiffFor (Rs.)Defendant (Rs.) Stamp on Vakalat2-00 2-00 Stamp on Petition-2-00 Stamp on Plaint786-00 - Stamp on process 125-00- Advocate Fee 3000-003000-00 Typing charges100-00100-00 Total costs: 4013-003104-00

Sd/-P.Lakshmi Kumari,

P.J.C.J., ONGOLE.

NOTEThe exhibited documents and non-exhibited documents, which are marked have to be taken back by the parties concerned within the stipulated time with an undertaking to produce the same as and when required by the Court.

// True Copy //

PRINCIPAL JUNIOR CIVIL JUDGE,

ONGOLE.

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: ONGOLE

Present: Smt P. Lakshmi Kumari,

Principal Junior Civil Judge, Ongole

Friday, this the 28th day of April, 2017

Original Suit No. 5 of 2012

Between:

1. Pathan Mahaboob Khan, S/o Silar Khan, (died) Aged 65 years, Muslim, R/o. Kothapatnam Village and Mandal.

2. Pathan Khadar Khan, S/o. Silar Khan, Aged 60 years, Muslim, R/o. Gudur Village & Mandal.

3. Pathan Alli Khan, S/o. Silar Khan, Aged 55 years, Muslim, R/o. Bilal Nagar, Ongole Town.

4. Patan Mymoon,W/o Late Mahaboob Khan, 65 years.

5. Patan Ayub Khan, S/o. Late Mahaboob Khan, 50 years.

6. Shaik Dilshad, D/o. Late Mahaboob Khan, Aged 40 years.

7. Shaik Shakila, D/o. Late Mahaboob Khan, Aged 38 years.

8. Shaik Sajida, D/o. Late Mahaboob Khan,Aged 35 years.

9. Shaik Saheda, D/o. Late Mahaboob Khan,Aged 30 years.

All are Muslims, plaintiffs 4 and 6 are the residents of Kothapatnam 5th plaintiff is residing at Gudur, plaintiffs 7 to 9 are residing at Ongole.

Amended as per orders in I.A.No.1876/2015 dated 22-6-2016.

... Plaintiffs.

And

1. Shaik Khadar Vali, S/o. Kala Bude, Aged 40 years, Muslim.

2. Syed Karim, s/o. Syed Subhani, Aged 40 years, Muslim, Rangayapalem.

3. Pathah Aziz Khan, S/o. Pathan Pentu, Aged 60 years, Muslim.

4. Shaik Meera Saheb, S/o. Mohiddinsha, Aged 50 years, Muslim,

5. Pathan Chirri Mastha, S/o. Pathan Hussain Khan, Aged 70 years, Muslim, Rangayapalem.

6. Shaik Vali, S/o. Bhakshu, Aged 35 years, Muslim, Rangayapalem

7. Shaik Kalesha Vali, S/o. Babu, Aged 35 years, Muslim.

8. Shaik Kareem, S/o. Rahamathulla, Aged 35 years, Muslim.

9. Shaik Razak, s/o. Masthan, Aged 40 years, Muslim.

10. Pathan Zilani, S/o. Mabu, Aged 35 years, Muslim.

11. Shaik Shahmi, S/o. Saida, Aged 33 years, Muslim.

12. Shaik Kala @ Mahaboob, s/o. Kala Bude, Aged 42 years, Muslim.

2

All are Residents of Kothapatnam Post and Mandal. ---Defendants.

The suit is coming on 24-03-2017 before me for final hearing in the presence of Sri M. Gangadhara Rao, Advocate for the Plaintiffs and of Sri

P.L. Govindaiah, Advocate for the defendants; and upon hearing the arguments and having stood over for consideration till this day, this Court delivered the following:

// J U D G M E N T //

01. Suit filed for permanent injunction restraining the defendants, their men, their associates, their followers and their assignees from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and for costs of the suit.

02.The brief averments of the plaint are as follows:

One Pathan Alli Khan son of Lal Khan is the absolute owner of the suit schedule property to an extent of Ac.0.40 cents in

S.No.1429/A.B.C. of Kothapatnam Grama Panchayat. On 11-2-1936 he gifted some property in the suit schedule to an extent of 240 sq. yards for construction of Mosque under document No.183 of 1936 and registered the same in Sub-Registrar Office, Ongole for the purpose of performing of

Muslim festivals. On the eastern side in the suit schedule property, there was a peerla Chavadi constructed by the said Alli Khan by his own funds.

During life time of Alli Khan Son of Lal Khan performed Muzavor duties there after his son Silar Khan i.e., father of the plaintiffs performed the above said Muzavou duties. After death of Silar Khan the 1st plaintiff has been doing Muzavor duty in the said Peela Chavadi situated on the eastern side and within the suit schedule property as the said peerla chavadi is the plaintiffs own peerla chavadi and doing Muzavor duties since the time of their fore fathers. There are no disputes at all regarding 3 the Muzavour duties in the said Peela Chavadi. That the plaintiffs are the absolute owners of the suit schedule property and they have been in joint and peaceful possession and enjoyment of the same uninterruptedly.

There are other two peerla chavadies in the Kothaapatnam Village. One is

Peerla Chavadi of 'SHAIK' families, and another one is “GAJULA” families.

None else are having any manner of right over the Peerla chavadi situated in the suit schedule property except the plaintiffs. That Peerla Chavadi of the plaintiffs was damaged and fallen down due to heavy rain, the goddess PANZAS are also kept in the house of 1st plaintiff till now and they will be brought only in procession and auspicious days. The suit schedule property and Peerla Chavadi site are kept in vacant, the defendants are trying to interfere and also to grab the said property of the plaintiffs for which the plaintiffs objected and obstructed them, they are always trying to dispossess the plaintiff taking advantage, as 1st plaintiff is residing at

Kothapatnam, 2nd plaintiff is residing at Gudur and 3rd plaintiff is residing at Ongole for their livelihood. Thereupon the matter was placed before elders with relevant document, but the defendants paid the deaf ear. On 17-12-2011 the plaintiffs issued legal notice to th defendants questioning their illegal act over the suit schedule property for that they gave reply on 23-12-2011 with all false contention. The suit schedule property along with the said peerla chavadi belongs to the plaintiffs and the defendants have no nay manner of right therein. 4Th plaintiff is the wife, 5th plaintiff is the son, and the plaintiffs 6 to 9 are the daughters of late Mahaboob

Khan. The 1st plaintiff died on 8-5-2015 leaving behind back of the plaintiffs 4 to 9 as his legal heirs so they are added as the L.R's of the deceased 1st plaintiff. That the defendants are openly proclaiming after receipt of notices since 2 or 3 days in the Kothapatnam Village that they are are going to dispossess the plaintiffs from the peaceful possession and enjoyment of the suit schedule property forcibly and trying to construct 4

Peerla chavadi in the suit schedule property and also to grab the remaining suit schedule property for their illegal purpose. The defendants are powerful persons and the plaintiffs are weak person to resist the illegal acts of the defendants. Hence, the suit.

03.Defendant No.1 filed written statement and the same was adopted by the defendants 2 to 12 denying the plaint averments and submitted that the plaint schedule property do not belongs to the ancestral property of the plaintiffs and the plaintiffs have nothing to do with the Plaint schedule property. There is Peerla chavadi at the Plaint schedule property, which is meant for the all the Muslim minority people to celebrate their spiritual ceremonies and other activities under Muslim

Religion at the plaint schedule property. There is peerlachavadi since more than 100 years at the plaint schedule property and in addition to the

Peerlachavadi, Allikhan, S/o. Lal Khan has donated 240 sq yards site under a gift deed on 11-2-1936 under a gift deed with document

No.183/1936 for the purpose of Muslim Community to celebrate their prayers and other spiritual activities in the said place. The plaintiff's have absolutely nothing to do with the Peerlachavadi and the Mazeed place on the west of Peerlachavadi. The peerlachavadi walls were fallen during

Lyla Cyclone one year back. Taking undue advantage of the same the plaintiffs are trying to encroach the plaint schedule property without any manner of right and they have no absolute right over it to make any constructions. The defendants having no any personal interest with the plaint schedule property. The peerlachavadi for Gajula families was in

Rangayapalem Village, but not Kothapatnam and they have converted the same into burial ground and the said Peerlachavadi has been using for the purpose of burial ground and not using for Peerlachavadi.

It is further submitted by him that the plaintiffs have no possession 5 and enjoyment over the plaint schedule property and that Plaintiffs have not come forward with clean hands. The plaintiffs suppressed the facts and filed the suit. The defendants have no personal interest in the plaint schedule property. The defendants are intended to protect the suit for their community at large, but not for their personal interest. The plaintiffs have no possession and enjoyment over the plaint schedule property at any point of time. The 2nd Peerlachavadi in Kothapatnam village has been using for Urdu School by constructing building therein. The plaint schedule Peerlachavadi is only Peerlachavadi for entire Muslim

Community of Kothapatnam village and Rangayapalem Village. Therefore the defendants prayed for dismissal of the suit with costs.

04.Basing on the above pleadings, the following issues are settled for trial :

1. Whether plaintiff has been in possession and enjoyment of suit schedule property as on date of filing of suit?

2. Whether defendants interfered unlawfully?

3. Whether plaintiff is entitled for permanent injunction as prayed for?

4. To what relief?

05.On behalf of Plaintiff, Pws.1 to 3 were examined and got marked

Ex.A.1 to A3. On behalf of defendant, Dws.1 to 5 were examined and

Exs.B1 was marked.

06.Heard arguments.

07. ISSUE Nos.1 to 3 : Since these issues are interconnected, this court intends to answer them together.

It is the specific case of plaintiffs that one Patan Alikhan, S/o Lal

Khan the absolute owner of suit schedule property to an extent of 40 cents in S.No.1429/ABC of Kothapatnam village Gram Panchayath and on 11.02.1936 he gifted to an extent of 240 sq. yards under EXA.1 in suit schedule for construction of mosque for the purpose of performing 6

Musilim festival and that on the eastern side of suit schedule property there was a Peerla chavidi constructed by said Alikhan by his own fund and that during his life time he performed muzavor duties and thereafter his demise, his son by name Silar khan I.e father of plaintiffs performed muzavor duties and after the death of Silarkhan , 1st plaintiff has been doing muzavor duty in the said Peerla chavidi situated on eastern side of suit schedule property and within the suit schedule property and as the said peerla chavidi is the plaintiffs own peerlachavidi and has been performing mazavor duties since the time of their forefathers and that plaintiffs are the absolute owners of suit schedule property and has been in joint possession and enjoyment uninterruptedly and that plaintiffs are having no absolute right over the peerla chavidi and none else are having any right over it. That there are two Peerla Chavidies in Kothapatnam

Village, one belong to Shaik families and the another one belong to Gajula

Families and hence the existence of two Peerla Chavidies for two different families establishes that Muslim community people of Kothapatnam

Village pray their god in their Peerla Chavidies respectively and like wise the Peerla chavidi of the plaintiffs were demolished due to heavy rains as it was constructed about 80 years ago and that Godesses Panzas are also kept in the house of 1st plaintiff and the same will be produced only in the procession and auspicious day. That suit schedule property are vacant and that defendants are attempting to interfere and also attempting to grab the said property of the plaintiffs for which plaintiffs objected and obstructed them, but defendants are always attempting to dispossess the plaintiffs from suit schedule property as defendants are contending that

Peerla Chavidi situated on the eastern side of suit schedule property belongs to all Muslim community of Kothapatnam Village at large and are going to dispossess the plaintiffs from suit schedule property and forcibly intending toconstruct Peerla Chavidi in suit schedule property and will also 7 grab the remaining extent of suit schedule property for their illegal purpose.

08.It is the specific case of the defendants that suit schedule property is not the ancestral property of plaintiffs and plaintiffs have nothing to do with suit schedule property and that the Peerla Chavidi which is situated on the eastern side of suit schedule property is meant for all the Muslim minority people to celebrate their spiritual ceremonies and other activities of the Muslim religion at Plaint schedule property and that the Peerla

Chavidi is in existence for the past 100 years over suit schedule property and in addition to the Peerla Chavidi, one Ali Khan, s/o Lal Khan had donated 240 sq yards of site under Ex.A1 for the purpose of Muslim community to celebrate their prayers and other spiritual activities in the said place and that plaintiffs have absolutely nothing to do with Peerla

Chavidi and Masjid place on the west of Peerla Chavidi and the very intention of the plaintiffs is to grab suit schedule property which is meant for Muslim community at large and that defendants have no personal interest with the Plaint schedule property and that defendants being

Muslims are intending to renuate the Peerla Chavidi and Masjid in the suit schedule property as per the decision of all Muslims in an around

Kothapatnam and that plaintiffs have no possession and enjoyment over the suit schedule property and that plaintiffs have approached the court with unclean hands and that the Peerla Chavidi for Gajula families was in

Rangayapalem Village but not in Kothapatnam and the same is converted into burial ground and that plaint schedule Peerla Chavidi is the only

Peerla Chavidi for entire Muslim community of Kothapatnam village and

Rangayapalem Villagers.

09.Learned counsel for Plaintiffs argued that suit schedule 8 property is the absolute property of pathan Ali khan and that Pathan Ali khan had donated 240 sq. yards of site out of suit schedule property for the purpose of construction of masjid and for the benefits and welfare of

Muslim communities and that there is Peerla Chaavidi on the eastern side of suit schedule property which was originally constructed by the Pathan

Ali Khan with his own funds and said Pathan Alikhan was Muzavor and the son of said Pathan Alikhan by name silar khan after demise of said Pathan

Alikhan had performed the muzavor duties and after death of said silar khan the 1st plaintiff had performed muzavor duties in the said Peerla

Chaavidi situated on the eastern side of suit schedule property and the said Peerla Chaavidi is plaintiffs own Peerla Chaavidi as such plaintiffs are absolute owners of suit schedule property and hence suit schedule property along with the said Peerla Chaavidi is the belongs to the plaintiffs and they are in exclusive possession and enjoyment of suit schedule property and that defendants taking *** undue advantage that suit schedule property is vacant site , defendants are attempting to interfere and to grab the said property of the plaintiffs for which plaintiffs objected and obstructed them, but defendants are always making attempts to dispossess the plaintiffs from suit schedule property as defendants are contending that Peerla Chavidi situated on the eastern side of suit schedule property belongs to all Muslim community of

Kothapatnam Village at large and defendants are going to dispossess the plaintiffs from suit schedule property and forcibly intending to construct

Peerla Chavidi.

10.Per contra Learned counsel for defendants argued that plaint schedule property do not belongs to the plaintiffs and same is not the ancestral property of the plaintiffs and the plaintiffs have nothing to do with the Plaint schedule property and the Peerla chavadi situated on the 9 eastern side of the Plaint schedule property is meant for the all the Muslim minorities people to celebrate their spiritual ceremonies and other activities under Muslim Religion at the plaint schedule property and the said peerlachavadi is existing since more than 100 years at the plaint schedule property and in addition to the Peerlachavadi, Allikhan, S/o. Lal

Khan has donated 240 sq yards site under a gift deed on 11-2-1936 under

EXA.1 for the purpose of Muslim Communities to celebrate their prayers and other spiritual activities in the said place and that the plaintiff's have absolutely nothing to do with the Peerlachavadi and the Mazeed place on the west of Peerlachavadi and that the peerlachavadi walls were fallen down during Lyla Cyclone one year back and taking undue advantage of the same, the plaintiffs are trying to encroach the plaint schedule property without any manner of right and they have no absolute right over it to make any constructions.

11.Plaintiffs to prove their suit claim had got examined three witnesses, chief affidavit filed in lieu of chief examination of Pw.1 was eschewed. 2nd plaintiff was examined as Pw.2 and reiterated the plaint averments and got marked Ex.A1 to A3. PW.2 admitted that trustee of

Masjid is one Ali Khan who is grand father of Pw.1 and he died about 60 years ago and that suit schedule property was given to Ali Khan for the purpose of Masjid under Ex.A1 and that no documentary evidence filed by the plaintiffs to prove that suit schedule property was or in their possession and enjoyment of their families. Pw.2 admitted further that his elder brother ie deceased 1st plaintiff filed the present suit contending that suit schedule property is his absolute property and he intended to construct Peerla Chavidi over suit schedule property for personal usage of the families of the plaintiffs and that all the plaintiffs are also claiming suit schedule property for their personal benefits and that the Peerla Chavidi 10 existed on the eastern side of suit schedule property are still used for celebrating Peerla festival along with entire villagers. Pw.1 admitted further that no Masjid was constructed as per the document under Ex.A1 and that suit schedule property is intended for construction of Peerla

Chavidi for Masjid purpose and not for personal purpose.

12.Pw.3 is the independent witness who deposed that he is the son-in-law of Pw.2 and deposed that the ancestors of plaintiffs have donated the suit schedule property for Peerla Chavidi and the said Peerla

Chavidi had fallen down in Lyla Thuffan about 5 years ago and now the plaintiffs are intending to re-construct the Peerla Chavidi to protect the

Muslim community interests at large but not for personal usage and the suit schedule property is vacant site and that 1st plaintiff was the Muttavali of the said Peerla Chavidi which is situated on the eastern side of suit schedule property. Pw.3 admitted the fact that plaintiffs are claiming suit schedule property as their absolute property and when plaintiffs 1 to 3 had attempted to re-construct house over suit schedule property at that stage, the defendants have attempted to cause interference in the possession and enjoyment of suit land. Pw.3 denied that property under

Ex.A1 is intended for benefits of Muslim community.

13.A suggestion was given to Pw.3 that when villagers had attempted construct houses in the Peerla Chavidi by taking undue advantage of the site being kept vacant and wall of the said peerla chavidi fallen down, at that stage plaintiffs filed the suit against the said villagers who are the defendants herein is quite contrary to the case of plaintiffs as plaintiffs never pleaded either in their pleadings or in the chief affidavit filed in lieu of chief examination that defendants had ever attempted to construct any houses over suit schedule property. Therefore the said 11 suggestion given to the PW.3 clearly proves that plaintiffs by taking inconsistent and contra pleas are intending to grab suit schedule property

14.Pw.3 in his evidence categorically testified that the present suit is filed against 10 persons claiming suit schedule property as the absolute property of plaintiffs which is incorrect and on the other hand it discloses that PW.3 has no knowledge of facts of suit .

15.The evidence of Pw.2 and Pw.3 is disclosing that plaintiffs are intending to re-construct the Peerla Chavidi which is admittedly situated on the eastern side of suit schedule property which is gifted under Ex.A1 for the purpose of Muslim community out of the property of Pattan Ali

Khan s/o Lal Khan to an extent of 240 sq yards out of 40 cents. No doubt

Pattan Ali Khan s/o Lal Khan is the original absolute owner of land to an extent of 40 cents in suit schedule survey number and he was also the trustee for the Peerla Chavidi and was also performing Muzavar duties in the said Peerla Chavidi during his life time, but the fact of the Pattan Khan

S/o Lal Khan gifting the 240 Sq yards of site under Ex.A1 for the welfare and benefits of Muslim Community is also undisputed.

16.Plaintiffs in their pleadings pleaded the fact that suit schedule property is the absolute property of one Pathan Ali Khan, S/o Lal Khan to an extent of 40 cents in Sy.No.1429/ABC of Kothapatnam Gram Panchayat and out of the said property he gifted 240 Sq. Yards to construct Mosque under Ex.A1 for the purpose of performing Muslim festival and on the eastern side of suit schedule property there was a Peerla Chavidi constructed by the said Ali Khan with his own funds and he performed

Muzavar duties and after his death his son Silar Khan ie father of plaintiffs have performed the Muzavar duties and that after the death of Silar Khan, 12 1st plaintiff has been going Muzavar duty in the said Peerla Chavidi. The very fact that Pathan Ali Khan was performing Muzavar duties in the

Peerla Chavidi and was also absolute owner of land to an extent of 40 cents in Sy.No.1429/ ABC of Kothapatnam Village cannot entitle the plaintiffs to claim the entire extent of suit schedule property to be in their exclusive possession and enjoyment as the execution of gift deed by the

Pathan Ali Khan s/o Lal Khan under Ex.A1 for the purpose of benefits of

Muslim Community for performing their prayers and spiritual ceremonies is clearly denoting the intention of Pathan Ali Khan that he donated the 240 Sq yards of site out of 40 cents in suit schedule property for the purpose of entire Muslim community of Kothapatnam village and therefore plaintiffs cannot claim absolute and exclusive right, title and possession over the suit schedule property.

17.1St defendant examined himself as Dw.1 and got marked Ex.B1

Compact Disc and reiterated the contents of written statement filed by the defendants. Dw.1 admitted the fact that suit schedule property originally belongs to Pattan Ali Khan who is grand father of plaintiffs and admitted further that Peerla Chavidi situated on the eastern side of suit schedule property and that suit schedule property is vacant site and the constructions over suit schedule property were damaged in Lyla Thuffan and that subsequent to the death of Ali Khan, his son Silar Khan continued

Muzavar duties for the Mosque and denied that land on the eastern and northern side of property under Ex.A1 is the site of Ali Khan. A suggestion was given to Dw.1 that Peers are in custody of plaintiffs and they are in possession and enjoyment of the said Peers as well as suit schedule property as on the date of filing suit was categorically denied by Dw.1. the said suggestion given to Dw.1 that plaintiffs are in possession and enjoyment of Peers and entire suit schedule property is clearly expressing 13 the Malafied intention of the plaintiffs to grab the donated property under

Ex.A1 under the guise that Muzavar duty being performed by grand father and father of the plaintiffs and Peerla Chavidi which is situated on the eastern side of suit schedule property.

18. Dw.2 is the 2nd defendant and Dw.3 is the 9th defendant who corroborated the version of DW.1 during his chief examination in all lines mentioned in chief affidavit filed in lieu of chief examination of Dw.1 but

Dw.2 admitted the fact before this court that his chief affidavit filed in lieu of chief examination is not drafted as per his instructions and again volunteered that the chief affidavit filed in lieu of chief examination filed by him is drafted as per his instruction. Dw.1 expressed ignorance that plaintiffs 1 to 3 are the grand sons of Pathan Ali Khan and that suit schedule property is to an extent of 50 cents. Dw.1 denied that there is

Samadi of SilarKhan on the northern side of Peerla Chavidi. Dw.1 admitted the fact that suit schedule property is a vacant site and the constructions over the suit schedule property were damaged in Lyla

Thuffan. The suggestion given to the DW.2 and DW.3 that there is

Samadi of Silar Khan on the northern side of Peerla Chavidi do not find place in the pleadings of plaintiffs that there is any samadhi of silar khan on north of suit schedule property and it shows the subsequent thoughts of plaintiffs of their malafide intention to grab suit schedule property.

19.Dw.4 is the independent witness who deposed that the Peerla

Chavidi which is existing on the eastern side of suit schedule property is ment for all Muslim Minority people for celebrating spiritual ceremonies and other activities under Muslim religion and the said Peerla Chavidi is existed more than 100 years in suit schedule property and in addition to the said Peerla Chavidi one Ali Khan s/o Lal Khan has donated 240 sq 14 yards site under a gift deed on 11.02.1936 under Ex.A1 for the purpose of benefits and welfare of Muslim community and plaintiffs have nothing to do with Peerla Chavidi and Masjid place situated on the western side of

Peerla Chavidi and that suit schedule property is not the ancestral property of the plaintiffs and that entire Muslim community in an around

Kothapatnam are performing the festival in Peerla Panduga in suit schedule site.

20.The evidence of Dw.4 was not destroyed by the plaintiffs in material particulars about the fact that entire Muslim communities of

Kothapatnam Village is not celebrating the peerla festival in Peerla chavidi situated on the eastern side of suit schedule property and that suit schedule property is the exclusive property of the plaintiffs having absolute right over it inspite of the donation of 240 sq yards of site in suit schedule survey number out of 40 cents.

21.Dw.5 in independent witness who deposed that he is performing Muzavar duty in peerla chavidi and Masjid of Kothapatm

Village and also conducting peerla panduga every year in Kothapatnam village in suit schedule survey number and that there is a peerla chavidi in suit schedule property which is meant for all Muslim minority people to celebrate spiritual ceremonies and that all Muslim community celebrate their prayers in peerla chavidi which is in existence since 100 years and in addition to peerla chavidi, one Ali Khan s/o Lal Khan had donated 240 sq yards of site under Ex.A1 for the purpose of Muslim community welfare and the entire Muslim community in an around Kothapatnam used to attend peerla panduga in schedule site.

22.Dw.5 expressed ignorance about the parties to the suit and 15 about their reliefs sought by the plaintiffs and about the suit schedule property and it's extent, boundaries and survey number as well as the contents of it's chief affidavit filed in lieu of chief examination and further expressed ignorance about the person by name Silar Khan. There is no suggestion given to Dw.5 by the learned counsel for the plaintiffs that the contents mentioned in the chief affidavit filed in lieu of chief examination of Dw.5 is incorrect though Dw.5 expressed ignorance about the contents mentioned in his chief affidavit filed in lieu of chief examination.

23.Perusal of Ex.A1 clearly discloses that one Ali Khan had gifted 240 sq yards of site for the purpose of construction of Masjid for the benefit of Muslim community out of his absolute property.

24.Perusal of Ex.P2 discloses that plaintiffs have got issued legal notice to defendants to stop illegal and un-lawful activities cautioning the defendants not to construct any construction in respect of Mosque and demolished Peerla chavidi for which reply was given by defendants under

Ex.A3 contending that suit schedule property is not the ancestral property of the plaintiffs and that plaintiffs have nothing to do with suit schedule property and the peerla chavidi is meant for all Muslim community which is existed since100 years and in addtion to said peerla chavidi one Ali

Khan s/o Lal Khan has donated 240 sq yards under gift deed dt.11.02.1936 for the purpose of Mulim community.

25.Perusal of Ex.B1 Compact Disc discloses that Muslim festival is being celebrated by the Muslim community. There is no cross examination on Ex.B1 disputing the fact of celebration of festival by

Muslim community of Kothapatnam Village pertaining to 2010,2011 and 2012 and when the Ex.B1 was filed subsequent to the suit, no counter 16 filed opposing the Ex.B1 contents as false and fabricated and a created document. The contents of Ex.B1 on perusal clearly proves the celebration of festival of Muslim community of Kothapatnam Village and same is corroborating the version of defendants that Peerla festival is performed by all the Muslim community of Kothapatnam Village and the said Peerla Chavidi is existence on the eastern side of suit schedule property. There is no suggestion given by learned counsel for the plaintiffs to Dw.1 to Dw.5 that Peers are not in custody of defendants and that no peerla festival is jointly performed on the eastern side of peerla chavidi, however the admission of Pw.2 that all the Muslim community and plaintiffs are still celebrating peerla festival along with entire village people over suit schedule property is further strengthening the defence of defendants that the peerla chavidi existed on the eastern side of suit schedule property and the property under Ex.A1 is only meant for benefits of Muslim community and for performing spiritual ceremony for the

Muslim people. Therefore the above said discussion this court is of opinion that plaintiffs to claim suit schedule property as their absolute property and that they are in exclusive possession and enjoyment over the suit schedule property is false and that it clearly denotes that plaintiffs have approached this court with unclean hands and accordingly plaintiffs are not entitle for the discretionary relief of permanent injunction against the defendants. Issues answered against plaintiffs.

26.ISSUE NO.4 : In the result, suit is dismissed with costs.

Typed to my dictation by the Typist, corrected and pronounced by me in open Court this the 28 th day of April, 2017.

Sd/-P.Lakshmi Kumari,

PRINCIPAL JUNIOR CIVIL JUDGE,

ONGOLE.

17

Appendix of Evidence Witnesses examined

For Plaintiff: For Defendants:

PW.1: Pathan Mahaboob KhanDW1: Shaik Khadar Valli

PW.2: Pathan Khadar KhanDW2: Syed Karim

PW.3: Shaik Khasim DW3: Shaik Razak

DW4: Shaik Mahammad Saheb

DW5: Shaik Gafoor

Documents marked For Plaintiff:

Ex.A1: Certified copy of gift deed dated 11-02-1936

Ex.A2: Office copy of legal notice dated 17-12-2011

Ex.A3: Reply notice dated 23-12-2011

For Defendants: Ex.B1: Compact Disk.

Sd/-P.Lakshmi Kumari,

P.J.C.J.,

ONGOLE.

// True Copy //

Prl. Junior Civil Judge,

Ongole.

18

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: ONGOLE

Present: Smt P. Lakshmi Kumari,

Principal Junior Civil Judge, Ongole

Friday, this the 28th day of April, 2017

Original Suit No. 5 of 2012

Between:

1. Pathan Mahaboob Khan, S/o Silar Khan, (died) Aged 65 years, Muslim, R/o. Kothapatnam Village and Mandal.

2. Pathan Khadar Khan, S/o. Silar Khan, Aged 60 years, Muslim, R/o. Gudur Village & Mandal.

3. Pathan Alli Khan, S/o. Silar Khan, Aged 55 years, Muslim, R/o. Bilal Nagar, Ongole Town.

4. Patan Mymoon,W/o Late Mahaboob Khan, 65 years.

5. Patan Ayub Khan, S/o. Late Mahaboob Khan, 50 years.

6. Shaik Dilshad, D/o. Late Mahaboob Khan, Aged 40 years.

7. Shaik Shakila, D/o. Late Mahaboob Khan, Aged 38 years.

8. Shaik Sajida, D/o. Late Mahaboob Khan,Aged 35 years.

9. Shaik Saheda, D/o. Late Mahaboob Khan,Aged 30 years.

All are Muslims, plaintiffs 4 and 6 are the residents of Kothapatnam 5th plaintiff is residing at Gudur, plaintiffs 7 to 9 are residing at Ongole.

Amended as per orders in I.A.No.1876/2015 dated 22-6-2016.

... Plaintiffs.

And

1. Shaik Khadar Vali, S/o. Kala Bude, Aged 40 years, Muslim.

2. Syed Karim, s/o. Syed Subhani, Aged 40 years, Muslim, Rangayapalem.

3. Pathah Aziz Khan, S/o. Pathan Pentu, Aged 60 years, Muslim.

4. Shaik Meera Saheb, S/o. Mohiddinsha, Aged 50 years, Muslim,

5. Pathan Chirri Mastha, S/o. Pathan Hussain Khan, Aged 70 years, Muslim, Rangayapalem.

6. Shaik Vali, S/o. Bhakshu, Aged 35 years, Muslim, Rangayapalem

7. Shaik Kalesha Vali, S/o. Babu, Aged 35 years, Muslim.

8. Shaik Kareem, S/o. Rahamathulla, Aged 35 years, Muslim.

9. Shaik Razak, s/o. Masthan, Aged 40 years, Muslim.

10. Pathan Zilani, S/o. Mabu, Aged 35 years, Muslim.

11. Shaik Shahmi, S/o. Saida, Aged 33 years, Muslim.

12. Shaik Kala @ Mahaboob, s/o. Kala Bude, Aged 42 years, Muslim.

All are Residents of Kothapatnam Post and Mandal.---Defendants.

19

Suit filed for permanent injunction restraining the defendants, their men, their associates, their followers and their assignees from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and for costs of the suit.

Date of Presentation: 04.01.2012 Date of Filing: 04.01.2012.

Valuation & Court fee: The relief of permanent injunction is valued at Rs.10,000/- on which a Court fee of Rs.786/- is paid U/Sec.26 (C) of A.P.C.F & S.V. Act.

Cause of Action: The cause of action for the suit arose, when the grand father of the plaintiffs, Alli Khan, S/o Silar Khan constructed the Peerla Chavadi on the eastern side in the suit schedule property by his own funds and performed Muzavor duties during his life time thereafter his son Silar Khan i.e., the father of the plaintiffs and after his life time, the 1st plaintiff has been doing Muzavor duties in the said Peerla Chavadi and the said Peerla Chavadi demolished due to old age and also constructed nearly 80 years back and the Panzas of Peeru Goddess also kept in the house of the 1st plaintiff, taking advantages, the plaintiffs are residing in various places of their livelihood, the defendants are trying to occupy the aid Peerla Chavadi palace and also to grab the entire suit schedule property by force when the plaintiffs got issued a legal notice to the defendants, they are reply with all false contentions and they are openly proclaiming since 2 to 3 days in the Kothapatnam village, they will dispossess the plaintiffs from the suit scheduel property, occupy the same and trying to construction Peerla Chavadi on the eastern side and caveat also filed by the plaintiffs before the court but the defendants are trying to dispose the plaintiffs from the suit schedule property with their untruly support. Subsequently the entire transaction and the suit schedule property is situated at Kothapatnam village within the jurisdiction of this court.

The suit is coming on 24-03-2017 before me for final hearing in the presence of Sri M. Gangadhara Rao, Advocate for the Plaintiffs and of Sri P.L. Govindaiah, Advocate for the defendants; and upon hearing the arguments and having stood over for consideration till this day, this Court doth order and decree:

1. that the suit be and the same is hereby dismissed; and

2.that the plaintiffs do pay to the defendants a sum of Rs.Nil- towards costs of the suit; bearing their own costs of Rs.NIL. ( C.M & F.C not filed on either side)

(Plaint schedule is here to attached )

Given under my hand and the seal of the Court, this the 28th day of April, 2017.

Sd/-P.Lakshmi Kumari,

PRL. JUNIOR CIVIL JUDGE,

ONGOLE.

//TABLE OF COSTS//

- Nil -

Sd/-P.Lakshmi Kumari,

P.J.C.J., ONGOLE.

20

NOTEThe exhibited documents and non-exhibited documents, which are marked have to be taken back by the parties concerned within the stipulated time with an undertaking to produce the same as and when required by the Court.

1

IN THE COURT OF THE I-ADDL.JUNIOR CIVIL JUDGE: ONGOLE

Present: Smt P. Lakshmi Kumari,

Prl. Junior Civil Judge, Ongole,

FAC I-Additional Junior Civil Judge, Ongole

Saturday, this the 25th day of March, 2017

Original Suit No. 361 of 2009

Between:

1. Srirama Adilakshmi, W/o. Prabhakar, Aged 38 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

2. Chigurupati Arunachalam, S/o. Subbaiah, Aged 67 years, Hindu, Yanadi Colony, Pothurajupalem, Ongole.

3. Annm Malleswari, W/o. Srinivasa Rao, Aged 37 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

4. Bhimavarapu Anjani, W/o. Nagaraju, Aged 39 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

5. Thota Lakshmi Padmavathi, W/o. Nagendra, Aged 52 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

6. Ganta Subbulu, W/o. Raghavulu, Aged 60 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

7. Vallamsetty Yellamanda, S/o. Pydaiah, Aged 50 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

8. Rayapati Rasool Bee, W/o. Samuel, Aged 35 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

9. Thupakula Chittemma, W/o. Sreenu, Aged 48 years, Hindu, Yanadi Colony, Pothurajupalem, Ongole.

10. Chigurupati Anantha Lakshmi, W/o. Arunachalam, Aged 50 years, Hindu, House wife, R/o. Yanadi Colony, Pothurajupalem, Ongole.

11. Chigurupati Naga Seshu, S/o. Arunachalam, Aged 32 years, Hindu, Coolie, R/o. Yanadi Colony, Pothurajupalem, Ongole

12. Chigurupati Siva Kumar, S/o. Arunachalam, Aged 22 years, Hindu, Coolie, R/o. Yanadi Colony, Pothurajupalem, Ongole.

(Name and description of 10 to 12 are added as per orders on I.A.698/2014 dated 24.03.2015)

…........Plaintiffs.

And

1. Pasupuleti Srinivasa Rao, S/o. Narasaiah, Aged 37 years, hindu, Carpenter,

2. Pasupuleti Ramakrishna, S/o. Narasaiah, Aged 33 years, Carpenter, Both are Residents of Annavarappadu Colony, Ongole. …..… Defendants.

The suit is coming on 20.03.2017 before me for final disposal in the presence of Sri M. Ajay Babu, Advocate for the Plaintiffs and of Sri S.Siva Rama 2 Krishna Prasad, Advocate for Defendants, upon hearing the arguments, and having stood over for consideration till this day, this Court delivered the following:

// J U D G M E N T //

01.This is a suit filed for permanent injunction restraining the defendants, their men, followers, associates from entering or interfering and disturbing with the plaintiff's peaceful possession and enjoyment of respective plaint schedule items in any manner whatsoever, and for costs.

02. The brief facts of plaint are as follows:-

The plaintiffs 1 to 8 are coolies and they are residing in the suit schedule items 1 to 8 long time i.e., more than 18 years. Previously the plaintiffs used to have small huts in the plaint schedule items and they used to reside there. The plaintiffs used to work as a labour and improved the same and made efforts to raise structures and residing therein. That revenue authorities have issued ration cards also to the families of the plaintiffs. Further Municipal authorities recognized the structures and levied property taxes also. Electricity Department issued service connections to some of the structures. Revenue authorities recognized the possession and enjoyment of respective plaintiffs and issued separate possession certificates in favour of the plaintiffs. In evidence of the possession of the plaintiffs, the plaintiffs filed the photos showing the construction of houses, huts in the respective properties. That the plaintiffs are in long possession and enjoyment over suit schedule property which is known to one and all including the defendants. Due to eye sore and with a view to grab the plaint schedule items, the defendants since few days are frequently coming to the suit schedule items in the absence of the plaintiffs and used to threat the inmates of the houses that they are going to demolish the houses and remove the constructions, huts and took possession by force with the help of their unruly following. The defendants have scant respect for law and order. The defendants have no manner of right to disturb the plaintiffs possession and enjoyment. If the threats of the defendants made into action, the plaintiffs are 3 unable to resist the illegal and high handed acts of the defendants as they are weak, law abiding citizens, that too they are living by doing coolie works. Unless and until the defendants are restrained by means of process of law, the plaintiffs are unable to resist the defendants. Hence, the plaintiffs are constrained to file this suit for permanent injunction. The 2nd plaintiff possessed item 2 of the plaint schedule property and died on 06.05.2013 intestate leaving behind his estate in the hands of the plaintiffs 10 to 12 who are the wife and children and they are necessary and proper parties for effective disposal of the suit. (added as per the orders on I.A.No. 698/2014 dated 24.03.2015)

03.The defendants 1 and 2 filed written statement and denying the averments of the plaint and further submit that they filed LGOP 21/1998 on the file of Hon'ble Prl. District Judge's court, Ongole against 28 persons and obtained orders of eviction and possession against the defendants in that LGOP.

The L.G. case was allowed on 22.04.1999. The defendants herein have in filed execution petition and the Hon'ble Prl. District Judge's Court, Ongole directed the RDO to implement the orders in I.A.14/2005 in LGOP 21/1998. The RDO,

Ongole implemented the orders. On 15.04.2008 the MRO, reported stating that the land was measured and demarked on 02.05.2008 the Hon'ble Prl. District

Judge's Court, Ongole close the I.A.14/2005 stating as follows: “02.05.2008

Delivery, Tahsildar, Ongole field report stating that the disputed property delivered to the petitioners on 01.05.2008 and obtained deliver receipt and report of the Revenue Officials who complied with the order. That as per the orders of the Hon'ble Prl. District Judge's Court, Ongole the property was delivered to the defendant herein who are petitioners in O.P.21/1998 and

I.A.14/2005. The schedule land in that O.P is:

T.S.No.93, Ward No.6, Block No.5 of Annavarappadu, Ongole Municipality extent of 102 gadies or 816 sq. yards.

Boundaries:

North: Sola Laxamma to some extent, PWD channel to some extent.

4 South: Uppuluri Srinivasa Rao

East: Vasepallipadu Road

West: PWD channel.

The present plaintiffs are not parties in that O.P.21/1998 or in that

I.A.14/2005. The extent is 102 gadies. The present plaintiffs are pressed into service by the respondents in that O.P. and this false suit is filed making false recitals. That some of the respondents in the LGOP have filed I.A.846/2005 in

I.A.14/2005 in O.P.21/1998 praying to condone the delay of 2637 days in filing the application to set aside the exparte decree. The Hon'ble Prl. District Judge's

Court, Ongole pleased to dismiss the said I.A. The Hon'ble Prl. District Judge's

Court, Ongole held “ that there are no valid grounds to condone the delay of 2637 days and to set aside in exparte decree. In RCB 640/1998 dated 06.04.2006 the Mandal Revenue Officer, Ongole stated that there are 27 encroachers in the land in S.No.93 of Annavarappadu Village. He gave a list of 27 encroachers and the names of the encroachers do not find place in the present suit in the array of plaintiffs. In the report sent by MRO Ongole to the Hon'ble District Judge,

Ongole in RCB/164/1998 dated 20.05.1998 in the civil verification report in

O.P.21/1998 it is stated that there are 113 encroachers and the list was submitted along with the verification report. The present plaintiffs have nothing to do with the land in S.No.93. Hence, the present plaintiffs have no right or possessed in S.No.93 and the so called possession certificate filed along the plaint are not genuine documents and they are fabricated and false. The allegations regarding possession for 12 years in those certificates is not correct.

The allegation in the plaint in para III (b of the plaint are not correct. After the delivery proceeding dated 02.05.2008 in I.A.No.14/2005 in O.P.21/1998. The present plaintiffs are pressed into service by the unsuccessful respondents in that O.P to file this suit with false allegations. The ration cards issued by the

Revenue Authorities and the property taxes collected by the Municipality and the services connections by the electricity department are all fake and bogus documents and the present plaintiffs have fabricated such evidence with the 5 help of enemies of these defendants by winning over the concerned authorities.

From the delivery proceedings dated 02.05.2008. It is clear that plaintiffs here in have no possession and enjoyment of the suit property. The documents filed along with the plaint are concocted and make believe affairs of purpose of the suit and that since 18 years the delivery proceedings dated 02.05.2008 in the land grabbing case regarding their possession. The plaintiffs perfected the right and possession since their long possession and enjoyment which is known to one and all including the defendants is falsified through the claim to be in possession.

The defendants further submits that they are the owners of land in

S.No.93 and an extent of 102 gadies under the registered sale deed dated 23.02.1994 executed by Smt. Pelluru Lakshamma and her daughters in favour of the defendants. According to the resettlement register the property belonged to one Seshaiah and on the death of Seshaiah one Venkata Subbaiah got the property and after the death of Venkata Subbaiah the vendors under the registered sale deed dated 23.02.1994 got that property cist also have been paid by the concerned parties. That suit schedule property is a private land and the

Revenue Department has no business to poke its nose. Hence, the proceedings of the Revenue Department relied on by the plaintiffs do not effect the rights of the present defendants and they are null and void. The plaintiffs cannot maintain the suit only if they prove the possession on the date of suit i.e., 12.05.2009, but the facts of this case and delivery proceedings in LG case falsify their plea. Therefore, suit for permanent injunction is not maintainable and the report of the commissioner is not acceptable as it is behind the back of the defendants ad without notice to the defendants. Commissioner is not expected to state any things about title and possession and prays to dismiss the suit with costs.

04.Basing on the above pleadings, the following issues are framed:-

1) Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for?

2) To what relief?

6

05. During the course of trial, the plaintiff got examined as PW1 to

PW7 and exhibited Ex.A1 to Ex.A20. On behalf of the defendants DW1 to DW3 were examined and Ex.B1 to Ex.B14 were marked.

06. Heard arguments.

ISSUE NO.1:

07. It is specific case of plaintiffs that revenue authorities issued ration cards to the families of plaintiffs and Municipal authorities recognized the structure raised by the family of the properties and levied property tax and got electricity services connection to the said structures and the revenue authorities recognized the possession and enjoyment of respective plaintiffs and issued separate possession certificate in favour of plaintiffs and plaintiffs perfected their right and possession for long possession and enjoyment over the suit schedule property and that defendants due to eye sore and with a view to grab plaint schedule items of properties are frequently visiting the suit schedule items in absence of plaintiffs and threatening the inmates in the house of plaintiffs to demolish the house and to remove the constructions and to take over the possession by force, therefore defendants may be restrained.

08. It is specific case of defendants that plaintiffs 1 to 9 have nothing to do with land in S.No. 93 and they are not having any right or possession in

S.NO.93 and the possession certificate issued in favour of respective plaintiffs are fabricated false documents and that defendants are the owners of land in

S.No.93 to an extent of 102 gadies under the Registered sale deed dated 23.02.1994 executed by Smt. Pelluri Lakshmamma and her daughters in favour of defendants and according to resettlement register, the property belongs to one

Seshaiah and on the death of Seshaiah one Venkata Subbaiah got the property and after the death of Venkata Subbaiah, the vendors under registered sale deed 23.02.1988 got that property and has been paying property cist and that the land grabbing Original petition No.21/1998 on the file of Hon'ble Prl. District

Judge, Court Ongole against the person was allowed on 22.04.1999 where

7 respondents therein filed execution petition and directed the RDO to implement the order in IA 14/05 in LGOP 21/1998 and accordingly RDO Ongole implemented the orders and that on 15.04.2008 Mandal Revenue Officer reported that the land was measured and demarked on 02.05.2008 and the

Hon'ble Prl. District Judge's Court, Ongole closed IA 14/2008 by delivering the

property to the petitioners therein and that in the Mandal Revenue officer report in RCB 640/1998 dated 06.04.2006 it is mentioned that there are 27 encroachers in respect of land in S.No.93 of Annavarapadu Village and as per the report of MRO Ongole dated 20.05.1998 in RCB/164/1998 in the civil verification

No. in O.P.No.21/1998 it is mentioned that there are 113 encroachers and a list of those encroachers was submitted along with verification report and the claim of the plaintiffs regarding possession and enjoyment for the past 18 years falsifies the claim as per the land grabbing O.P.21/1998 and plaintiffs are never in possession and enjoyment of S.NO.93.

09. To prove the suit claim 1st plaintiff got examined as PW1 and reiterated the plaint averments and got marked Ex.A1 to Ex.A3. PW1 deposed that he is not party to the LGOP 21/1998 and admitted that defendants herein got the decree in their favour in the said LGOP and further admitted that by the date of filing of LGOP PW1 is not in possession and enjoyment as such he was not added and party to the said LGOP No.21/1998 and admitted further that

Mandal Revenue Officer did not come to suit schedule property about five years ago PW1 was got issued possession certificate.

10. PW2 is the 2nd plaintiff who reiterated the plaint averments and got marked Ex.A4 to Ex.A9 and depose that he is in possession and enjoyment over his house for the past 20 years and that he raised thatched hut and later raised zink sheet shed and has no documentary proof to show his possession since 20 years and that he lost the documents in cyclone and that his wife is having ration card on her name as he was not present in the house.

8

11. PW3 is the 3rd plaintiff who corroborated plaint averments and got marked Ex.A10 to Ex.A13. PW3 deposed that suit schedule property is situated in Balaji Nagar and he has knowledge about the boundaries of his house, but he has been residing by raising zink sheet shed since 18 years and expressed ignorance that Mandal Revenue officer handed over the possession to the defendants. PW3 admitted that he has no ration card in respect of suit schedule property and has no documentary evidence to prove his possession and enjoyment over his property since 18 years.

12. PW4 is the 4th plaintiff and got marked Ex.A14 to Ex.A16 PW5 is the 5th plaintiff examined and got marked Ex.A17 to Ex.A18 PW6 is the 6th plaintiff examined and got marked Ex.A19 and Ex.A20 and deposed that they have no idea about the door number of their houses and they are residing in

Arava Colony and deposed that suit schedule property is situated in

Annavarapadu and not in Kesava colony. PW4 to PW6 expressed ignorance for their plot Number for which they obtained possession certificate and expressed ignorance about the fact that names of the plaintiff not mentioned as encroachers in RCB 164/1998 dated 20.05.1998 and that there are 113 members as encroachers and as per RCB 640/1998 dated 06.04.2008 MRO has mentioned 27 persons as encroachers and plaintiffs names were not mentioned in any of the report of Mandal Revenue officer as encroachers. PW4 to PW6 expressed ignorance about filing of LGOP by defendants herein against Damacharla Subba

Rao and 27 others on the file of Hon'ble Prl. District Judge Court, Ongole.

13. 1st defendant examined as DW1and reiterated the contents of written statement and got marked Ex.B1 to Ex.B14. DW1 deposed that he purchased land in the year 1994 in S.No.93 of Annavarapadu and by the date of purchasing the land in S.No.93 towards its western side there is a road existing and he has got documentary proof that S.No.93 was sub divided and that he purchased the land from Venkata Subbaiah under Ex.B2 and that the vendor of

DW1 did not sold any land to any one and deposed that Pelluri Venkata Subbaiah 9 is not having land in S.NO.93/1C2 under Ex.B5 and there is no specific extent mentioned under Ex.B5 against each enjoyer.

14. DW2 is the independent witness who deposed that defendants 1 and 2 are his brothers and deposed that town S.No.93 ward No.6 block No.5 of

Annavarapadu Ongole Municipality has got land to an extent of 102 gadies and

Mandal Revenue officer had delivered possession as per the Hon'ble Prl. District

Court, Ongolel in LGOP 21/1998 and the land was sub divided by the revenue officials as S.No.93/1C2 and that D1 and D2 are in possession and enjoyment of

Suit schedule property and that plaintiffs are not in possession and enjoyment over the suit schedule property. DW1 deposed that suit schedule property is existed in Annavarapadu village and that Vasupallipadu road is situated on the east of Agraharam cement road and there is no S.No for the road.

15. DW3 is also independent witness corroborated the version of DW2 in his chief affidavit filed in lieu of chief examination and deposed the he is residing in Kesvasawmy peta Ongole. DW3 had deposed that the MRO Ongole had delivered the possession to Pasupuleti Srinivasa Rao in the year 2008.

16. The evidence of PW1 to PW6 clearly discloses that they are not having any documentary proof regarding their possession and enjoyment over the suit schedule property for their respective land for the past 18 years as alleged by them. PW1 to PW6 admitted that they are not the encroachers as per the report of Mandal revenue officer in LGOP 21/1998 in RCB 164/98 dated 20.05.1998 and RCB 640/98 dated 06.04.2006 and clearly admitted that by the date of delivering possession to the petitioners therein , plaintiffs 1 to 9 herein were not in possession and enjoyment and as such they were not made as parties to the said LGOP 21/1998.

17. Perusal of possession certificate under Ex.A1 discloses that the same is in the name of 1st plaintiff, Ex.A4 in the name of 2nd plaintiff, Ex.A10 in the name of 3rd plaintiff, Ex.A14 in the name of 4th plaintiff, EX.A17 in the name 10 of 5th plaintiff and Ex.A19 in the name of 4th plaintiff though discloses that respective land is in possession and enjoyment of the plaintiffs 1 to 6 but the said possession and enjoyment of the plaintiffs 1 to 6 is only found on the paper and not on the ground and there is no documentary proof filed by the plaintiffs 1 to 9 in proof of their alleged long possession i.e. for the 18 years as alleged by them. The above said possession certificate under Ex.A1, Ex.A4, Ex.A10 Ex.A14

EX.A17 and Ex.A19 though issued in favour of the plaintiffs 1 to 6, but no revenue officials examined by the plaintiffs to prove their actual physical possession and enjoyment over the suit schedule property pertaining to their respective land.

18. Defendants by examining 1st defendant categorically proved that suit schedule property delivered to the defendants as per LGOP 21/1998 as per report of Mandal Revenue officer in RCB 164/98 dated 20.05.1998 and RCB 640/98 dated 06.04.2006 where the names of plaintiffs were not found in the list as encroachers. The said fact of not being encroachers was categorically admitted by plaintiffs 1 to 6 before this Court during their course of their cross examination and about their being not in possession and enjoyment in respect of suit schedule property by the date of delivery of possession of land in favour of defendants as per LGOP21/98.

19. Defendants beside examining 1st defendant as DW1 got examined two independent witnesses DW2 and DW3 who categorically admitted about the delivery of possession of land in favour of defendants as per LGOP 21/98.

20. Learned counsel for the plaintiffs argued that the report of advocate commissioner regarding observation of physical features referred in the advocate commissioner plan is not disputed by the parties and the evidence of DW1 clearly proves that he has no knowledge about the existence of thatched house constructed by the plaintiffs with the boundary shown under suit property and as per the report of surveyor, there is no suit property in S.No.

93/1C2 and that the some of the houses are having electricity connection and 11 paying house tax to the Municipality which proves plaintiffs possession and enjoyment over the suit schedule property.

21. Per contra learned counsel for the defendants argued that the present plaintiffs are the hench men of the unsuccessfully respondents in LGOP 21/98 who are pressed into service to disturb the possession and enjoyment of the defendants and that they are not the encroachers at least as per the report of the Mandal Revenue officer submitted in LGOP 21-98 and never in possession and enjoyment and that the possession certificate filed under Ex.A1, Ex.A4,

EX.A10 EX.A14 Ex.A17 and Ex.A19 are not proved before this Court by examining any revenue officials, therefore there is no validity for Ex.A1, Ex.A4,

EX.A10 EX.A14 Ex.A17 and Ex.A19 in the eye of law to prove its genuineness and it appears that Ex.A1 , Ex.A4, EX.A10 EX.A14 Ex.A17 and Ex.A19 are created only to defeat the rights of defendants who are the true owners in respect of suit schedule survey numbers.

22. Admittedly no revenue officials examined before this Court by or on behalf of plaintiffs to prove that Ex.A1 , Ex.A4, EX.A10 EX.A14 Ex.A17 and

Ex.A19 and EX.A3 Ex.6 to Ex.A9 Ex.A11 to Ex.A13 Ex.A16 got issued by the revenue officials verifying the actual physical possession and enjoyment of the plaintiffs over the suit schedule property.

23. Plaintiffs did not dispute the delivery of possession of land in

S.NO.93 to an extent of 102 gadies of land in favour of defendants as per the delivery report of Mandal Revenue officer submitted in LGOP 21/98 and the delivery receipt recorded by Hon'ble Prl. District Judge, Ongole and therefore, it clearly proves that Ex.A1, Ex.A4, EX.A10 EX.A14 Ex.A17 and Ex.A19 and EX.A3

Ex.6 to Ex.A9 Ex.A11 to Ex.A13 Ex.A16 are created documents only for the sake of suit to grab the suit schedule property.

24. Perusal of Ex.B2 registered sale deed discloses that defendants 1 and 2 are the absolute owner and possessor of suit schedule property and same is not disputed by the plaintiffs regarding its genuineness.

12

25. Perusal of Ex.B3 to Ex.B5 discloses the names of predecessor in title of defendants in possession and enjoyment over the schedule property.

26. Perusal of Ex.B6 discloses that 1st plaintiff is remitted the cist receipt.

Perusal of Ex.B7 discloses that Certified copy of Form 3 Order dated 16.08.1982 issued by Special Deputy Tahsildar, Ongole discloses that predecessor in title of defendant that is Pelluri Venkata Subbaiah for sub division of patta land in

S.NO.93 /1C2

27. Perusal of Ex.B8 Certified copy of suit summons enclosed with plaint in O.S.438/1994 and EX.B9 certified copy of decree dated 10.06.1997 in

O.S.438/1994 discloses that the land in S.NO.93 consist of 100 huts claimed by

Harigana girigana balahina vargala samykya seva sangam balaramanagar,

Annavaraapadu Ongole where plaintiffs were not party to the suit.

28. EX.B10 is the verification report of Mandal revenue officer in

OP 21/1998 discloses that plaintiffs are not the encroachers as per the

list enclosed the report of MRO Ongole dated 14.05.1998.

29. EX.B11 to Ex.B14 discloses that defendants herein are parties to the suit. Perusal of Ex.B1 is discloses that defendants 1 and 2 in LGOP 21/98 and plaintiffs are not party to said OP filed for setting aside the exparte decree in LGOP 21/98. Perusal of Ex.B14 is the memo of Thasildar Ongole where the disputed property in LGOP 21/98 delivered to the petitioners therein and obtained delivery receipt which proves that plaintiffs herein are not concerned and not in possession and enjoyment over the suit schedule property.

30. It is not the contention of the plaintiffs that land delivered to the petitioners in LGOP 21/98 is one and the same compared to suit schedule property. Therefore with the above said discussion it is held that plaintiffs are not in possession and enjoyment over suit schedule 13 property as on the date of filing suit. Hence, suit of plaintiff is and hereby dismissed.

ISSUE NO.2;-

31.In the result, the suit is dismissed with costs.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in open Court, this the 25 th day of March, 2017.

Prl. JUNIOR CIVIL JUDGE, Ongole FAC/I.Addl. Junior Civil Judge, ONGOLE.

Appendix of Evidence

Witnesses examined

For Plaintiff: For Defendant:

PW-1: Sivarama AdilakshmiDW1: Pasupuleti Srinivasa Rao PW-2: Chigurupati ArunachalamDW2: Dumpala Rama Krishna PW-3: Annam MalleswariDW3: Reddy Mallikarjuna Rao PW-4: Bhimavarapu Anjani PW-5: Thota Lakshmi Padmavathi PW6: Ganta Subbulu PW7: T. chittamma(Eschewed)

Documents marked

For Plaintiff: Ex.A1:Possession certificate No.29/96 dated 24.01.1996

Ex.A2:Photo with negative

Ex.A3:Certified copy of Ration card dated 13.11.2005

Ex.A4:Possession certificate No.28/96 dated 24.01.1996 issued in favour of 2nd plaintiff(marked subject to objection)

Ex.A5:Photo with negative

Ex.A6:Original Ration card, dated 23.08.2005

Ex.A7:Property tax demand notice

Ex.A8:Property tax receipt two in number stand in the name of 2nd plaintiff

Ex.A9:Electricity bill stands in the name of 2nd plaintiff

Ex.A10:Possession certificate No.27/96 dated 24.01.1996 issued in favour of 3rd plaintiff

Ex.A11:Photo with negative

Ex.A12:Notice of property tax for new assessment or amendment

dated 06.08.2007

Ex.A13:Property tax receipt

Ex.A14:Possession certificate No.25/96 dated 24.01.1996 issued in favour of 4th plaintiff

Ex.A15:Photo with negative showing possession of 4th plaintiff 14

Ex.A16:Ration card dated 05.08.2005 issued to the 4th plaintiff

Ex.A17:Possession certificate No.26/96 dated 24.01.1996 in favour of 5th plaintiff

Ex.A18:Photo with negative

Ex.A19:Possession certificate No.22/96 dated 24.10.1996 in favour of 6th plaintiff

Ex.A20:Photo with negative

For Defendant:

Ex.B1:Certified copy of petition, dated 09.09.1997

Ex.B2:Certified copy of Registered sale deed dated 23.02.1994

Ex.B3:Certified copy of RSR in S.No.93 issued by VAO, Annavarappadu

Ex.B4:Certified copy of RSR in S.No.93 issued by VAO, Annavarappadu Village.

Ex.B5:Certified copy of Adangal in S.No.93 issued by VAO, Annavarappadu

Ex.B6:Certified copy of cist receipts 3 in No. in S.No.93 issued VAO

Ex.B7:Certified copy of Form 3 Order dated 16.08.1982 issued by Special Deputy Tahsildar, Ongole

Ex.B8:Certified copy of suit summons enclosed with plaint in

O.S.438/1994

Ex.B9:Certified copy of decree dated 10.06.1997 in O.S.438/1994

Ex.B10:Verification report RC.B/164/98, dated 20.05.1998 with 113 encroacher list in S.No.93

Ex.B11:Certified copy of decree and order dated 24.02.1999 in LGOP 21/1998

Ex.B12:Affidavit and petition dated 18.10.2004 and docket order dated 28.01.2005 to 02.05.2008

Ex.B13:Certified copy of order dated 02.08.2007 in I.A.No.846/2006 in LGOP No.21/1998

Ex.B14:Certified copy of memo dated 01.05.2008 issued by the Tahsildar, Ongole.

P.J.C.J. Ongole FAC/ I-A.J.C.J., ONGOLE.

15 // True Copy //

I.ADDL. JUNIOR CIVIL JUDGE,

ONGOLE.

1

IN THE COURT OF THE I-ADDL.JUNIOR CIVIL JUDGE: ONGOLE

Present: Smt P. Lakshmi Kumari,

Prl. Junior Civil Judge, Ongole, FAC I-Additional Junior Civil Judge, Ongole

Saturday, this the 25th day of March, 2017

Original Suit No. 361 of 2009

Between:

1. Srirama Adilakshmi, W/o. Prabhakar, Aged 38 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

2. Chigurupati Arunachalam, S/o. Subbaiah, Aged 67 years, Hindu, Yanadi Colony, Pothurajupalem, Ongole.

3. Annm Malleswari, W/o. Srinivasa Rao, Aged 37 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

4. Bhimavarapu Anjani, W/o. Nagaraju, Aged 39 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

5. Thota Lakshmi Padmavathi, W/o. Nagendra, Aged 52 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

6. Ganta Subbulu, W/o. Raghavulu, Aged 60 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

7. Vallamsetty Yellamanda, S/o. Pydaiah, Aged 50 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

8. Rayapati Rasool Bee, W/o. Samuel, Aged 35 years, Hindu, Coolie, Yanadi Colony, Pothurajupalem, Ongole.

9. Thupakula Chittemma, W/o. Sreenu, Aged 48 years, Hindu, Yanadi Colony, Pothurajupalem, Ongole.

10. Chigurupati Anantha Lakshmi, W/o. Arunachalam, Aged 50 years, Hindu, House wife, R/o. Yanadi Colony, Pothurajupalem, Ongole.

11. Chigurupati Naga Seshu, S/o. Arunachalam, Aged 32 years, Hindu, Coolie, R/o. Yanadi Colony, Pothurajupalem, Ongole

12. Chigurupati Siva Kumar, S/o. Arunachalam, Aged 22 years, Hindu, Coolie, R/o. Yanadi Colony, Pothurajupalem, Ongole.

(Name and description of 10 to 12 are added as per orders on I.A.698/2014 dated 24.03.2015)

…........Plaintiffs.

And

1. Pasupuleti Srinivasa Rao, S/o. Narasaiah, Aged 37 years, hindu, Carpenter,

2. Pasupuleti Ramakrishna, S/o. Narasaiah, Aged 33 years, Carpenter, Both are Residents of Annavarappadu Colony, Ongole. …..… Defendants.

This is a suit filed for permanent injunction restraining the defendants, their men, followers, associates from entering or interfering and disturbing with 2 the plaintiff's peaceful possession and enjoyment of respective plaint schedule items in any manner whatsoever, and for costs.

Plaint presented on: 12.05.2009Plaint filed on: 13.05.2009.

Cause of Action: Cause of action for the suit arose when the plaintiffs are coolies and they occupied the suit schedule items more than 18 years back, when the plaintiffs have small huts and residing there, when the Government recognized possession of the plaintiffs and issued possession certificates, when some of plaintiffs made constructions and some of plaintiffs residing in huts, cement sheet houses, when Municipality levied taxes, when ration card issued to the families of plaintiffs, when electricity connections were given to houses, when the defendants who have no manner of right whatsoever, due to eye sore threatening that they will enter, interfere, demolish the constructions and forcibly dispossess the plaintiffs and they have scant respect for law and order at Ongole where the cause of action arose, where the parties reside and suit schedule items are situated is within the jurisdiction of this court.

Valuation and Court Fee: Value of the suit for the purpose of Court Fee and Jurisdiction of rent at Rs.5000/- each on which a Court fee of Rs.411/- is paid by each of the plaintiff totaling to Rs.3699/- under Sec. 26 © of APCF & SV Act. The suit is coming on 20.03.2017 before me for final disposal in the presence of Sri M. Ajay Babu, Advocate for the Plaintiffs and of Sri S.Siva Rama Krishna Prasad, Advocate for Defendants, upon hearing the arguments, and having stood over for consideration till this day, this court doth order and decree:

1.that the suit be and the same is hereby dismissed; and

2.that the plaintiffs do pay to the defendants a sum of Rs.4002/- towards costs of the suit, bearing their own costs of Rs.3701/- (Institutional costs)(CM & FC not filed).

(Plaint schedule attached to decree) Given under my hand and the seal of the court, this the 25th day of March, 2017.

Prl. JUNIOR CIVIL JUDGE, Ongole FAC/I.Addl. Junior Civil Judge, ONGOLE.

//TABLE OF COSTS//

For Plaintiff For Defendants (Rs.)(Rs.) Stamp on Vakalat2-002-00 Stamp on Plaint3699-00-- Stamp on process ---- Advocate Fee --4000-00 Writing charges---- Typing charges---- Total costs of Rs.3701-00 4002-00

P.J.C.J. Ongole FAC/ I-A.J.C.J., ONGOLE.

3

NOTE: The exhibited documents and non-exhibited documents, which are marked, have to be taken back by the parties concerned within the stipulated time with an undertaking to produce the same as and when required by the Court.

4

1

IN THE COURT OF THE I-ADDL.JUNIOR CIVIL JUDGE: ONGOLE

Present: Smt P. Lakshmi Kumari,

Prl. Junior Civil Judge, Ongole,

FAC I-Additional Junior Civil Judge, Ongole

Saturday, this the 25th day of March, 2017

Original Suit No. 318 of 2010

Between: Thatiparthi Durga, W/o. Gopalamu, Aged 65 years, Hindu, Coolie, R/o. D.No.10-145, Indira Colony, Opp. FCI Gowdowns, Ongole.

…........Plaintiff.

And

1. Unni Sarvana, S/o. Gopal Reddy, Aged 30 years, Hindu, Business, Indira Colony, OPP FCI Gowdowns, Ongole

2. Unni Rajendra Prasad, S/o. Gopal Reddy, Aged 27 years, Hindu, Buiness, Indira Colony, Opp FCI Gowdowns, Ongole. …..… Defendants.

The suit is coming on 23.03.2017 before me for final disposal in the presence of Sri K. Srinivasulu, Advocate for the Plaintiff and of Sri P. Subba Rao,

Advocate for Defendants, upon hearing the arguments, and having stood over for consideration till this day, this Court delivered the following:

// J U D G M E N T //

01.This is a suit filed for permanent injunction restraining the defendants, their men, agents and followers from interfering with plaintiff's peaceful possession and enjoyment of plaint schedule property and for mandatory injunction directing the defendants to remove the structures raised over X1 FA1,

FA1-FA2, FA2-X2, X2-X1 in the plaint plan, failing which the same may be done through process of law and for costs.

02. The brief facts of plaint are as follows:-

Originally the plaint schedule property is belongs to Government. The plaintiff's mother by name Thirumalapuram Durgamma Wife of Veeraswamy occupied the schedule land 40 years ago. The Government recognized her possession and enjoyment of the house and issued a DK patta No.D.K.8/78 dated 05.04.1978 for an extent of Ac.0.05 cents. Later in the year 1982 the plaintiff's 2 mother settled an extent of Ac.0.2 ½ cents in favour of the plaintiff and submitted a requisition to the revenue authorities for issuance of patta in favour of the plaintiff. The revenue authorities made enquiry and given a patta in favour of the plaintiff for an extent of Ac.0.02 ½ cents in favour of the plaintiff. Since then the plaintiff has been in peaceful possession and enjoyment of the plaint schedule property. The plaintiff obtained service connection No.80 from the electricity department. The plaintiff had one brother. The remaining Ac.0.02 ½ cents was occupied by him. The plaintiff's brother failed to look after the welfare of her mother. As there is no other alternative, the plaintiff's mother was looked after by the plaintiff and she lost her breath in the house of the plaintiff in the year 1985. That he has been in peaceful possession and enjoyment of the plaint schedule property; plaint schedule and plaint plan i.e.,

Flat - “A” i.e., FA, FA1, FA2 & FA3. FA-FA1 is 24' feet width, FA1-FA2 is 45 feet,

FA2-FA3 is 24 feet width and FA3- FA is 45 feet. Out of which the plaintiff constructed a house i.e., FH, FH1, FH2 & FH3. FH-FH1 is 13' feet, FH1-FH2 is 27 ½ feet, FH2-FH3 is 13' feet and FH3-FH is 27 ½ feet. The plaintiff left 8 feet width vacant site northern side, 17 ½ feet on eastern side, 3 feet width vacant site on southern side, and 3 feet on western side for good light, air and to make repairs & plastering to the wall around the house. The plaintiff constructed a bath room on east-south corner. That plaintiff has been in peaceful possession and enjoyment of the plaint schedule property plaint schedule and plaint plan. The plaintiff obtained service connection No.80 from electricity department in the year 1985. The plaintiff paid tax to Koppolu Grama Panchayat for some period.

Later the plaintiff has been paying tax to the Ongole Municipality. That plaintiff came to know that the plaintiff's brother sold site on southern side remaining land to some body, in turn the purchaser sold the same to somebody, in turn the defendants purchased the same. The schedule land is Government land and, the transfer by way of sale is not valid in the eye of law. The plaintiff's daughter also residing with the plaintiff. One week back the plaintiff and her family went to

Chennai for summer vacations as her son-in-law relatives were staying Chennai.

3

On 04.06.2010 the plaintiff and her family came down to Ongole and observed that the defendants high handedly encroached and made construction on 2' feet width site on southern side of plaintiff's house i.e., X1-FA1, FA1-FA2, FA2-X2, X2-

X1, which come to 2' feet X 45' feet = 90' feet width site, the plaintiff questioned the defendants, the defendants threatened the plaintiff with dire consequences and more over they propagandas in the locality that they will demolish the plaintiff's southern side wall by putting a mark on the wall high handedly and making constructions without having any manner of right over X1-FA1, FA1-FA2,

FA2-X2, X2-X1. The defendants also propagating that they will occupy the eastern side vacant site by demolishing the bath room. The plaintiff and her daughters are coolies. The plaintiff and her daughter constructed the house in plaint schedule with their hard earnings. The plaintiffs is aged about 65 years senior and law abiding citizen. The plaintiff is not in a position to resist the unlawful acts of the defendants. The defendants are powerful persons having huge political influence and following. As there is no other go except to knock the door steps of the Hon'ble court for justice. Hence, the suit.

03.The defendant No.1 filed written statement and the same was adopted by the 2nd defendant and denying the averments of the plaint and further submit that in fact the suit schedule land is the Government land as stated by the plaintiff. The suit schedule property was allotted for one Purini

Ramana Reddy, son of Narasimha Reddy of Motumala Village and he was in possession and enjoyment of the suit schedule property. Later in the year 1984 the mother of the defendants purchased from the above said Purini Ramana

Reddy and she constructed a hut in the suit schedule property and she is in peaceful possession and enjoyment of the suit schedule property. As the property is the Government land the mother of the defendants applied for patta for the concerned revenue authorities. The revenue authorities enquired about the mother of the defendants by name v. Varadamma and found that she was the land less poor and believed that she is entitled for issuance of the house patta and the revenue authorities also issued the patta on the name of V.

4

Varadamma who is the mother of the defendants on 15.10.2001. Since the year 1984 the mother of the defendants i.e., V. Vardamma is in peaceful possession and enjoyment of the suit schedule property. The said Varadamma also applied for electricity connection and obtained electricity connection bearing No.000174 and she has been utilized the electricity till her death. The mother of the defendant's Varadamma also paid the house tax to the said house. The Ongole

Municipality also made the assessment and imposed tax on 09.07.2007. The said

Varadamma who is the mother of the defendants was passed way about 2 years back since the sons of the said Varadamma were in peaceful possession and enjoyment of the suit schedule property as the legal heirs of the said

Varadamma. The defendants were in peaceful possession and enjoyment of suit schedule property and they are paying the electricity tax regularly. The plaintiff constructed the pakka house in her site with out left even on inch of around her house; she also constructed the compound wall around her house on the boundary. The defendants house i.e., thatched house was damaged due to “Lyla” Cyclone and since the defendants and their family fell on the road as they have no residential alternative. When the defendants started to construct a house in the place of the thatched house which was demolished the plaintiff and his daughter were also present at the time of foundation and they kept quite till the walls raised by the defendants about 2 or 3 feet. The plaintiff and her daughter hatched up a plan to grab the site of the defendants and caused obstruction to construct the house. The defendants brought the same to notice of the elders, the elders measured the site with the assistance of revenue authorities and found that the plaintiff occupied 1 ½ feet to the southern side of her house which belongs to the defendants. The defendants kept quite as the plaintiff already constructed the compound wall as well as both rooms, being the neighbours the defendants could not insist the plaintiff to remove the construction made in the occupied site of the defendant. The plaintiff did not come to the Court with clean hands, the plaintiffs case is totally contra to the commissioner report. As per the petition the plaintiffs left 3 feet on the 5 southern side of her compound wall, but as per the commissioner report the plaintiffs construct the compound wall on the boundary. The commissioner shown in his plan that there is one foot between the A and B plots i.e., the plaintiffs and defendants plots. The entire plaintiff's case is different and no way concerned with the suit. The ownership of the schedule property is not disputed. Both plaintiff and defendants got their own documents issued by the revenue authorities by enquired the eligibility of the persons. Here the revenue authorities got issued the patta on proper enquiry to the defendant's mother.

The plaintiff and his daughter got several house sites in several colonies surrounding the Ongole town in every site there is dispute to the plaintiff and the neighbours. The plaintiff and her daughter never went to Chennai for summer vacations as stated in the petition. They got knowledge from the beginning of the construction made by the defendants. The plaintiff and her daughter did not here the words of the mediators. Even as the measurements shown in the plaint that the plaintiffs site is Ac.0.02 ½ cents still it is there, the defendants never cross their limits or occupied the site 2 feet of the plaintiff.

The defendants here with giving undertake that they never demolished the southern side wall of the plaintiffs or both rooms as stated by the plaintiff in their petition. That is the play rolled by the plaintiff and her daughter to cause obstruction the construction of the house. The daughter of the plaintiff also gave a police complaint against the defendants with the political influence. The concerned police also visited the suit locality and found the fault on the part of the plaintiff and her daughter, but they also found no fault on the part of the defendants. The defendants are coolies and they came from another place for the purpose of coolie work and they have no such capacity to cause harm her damage to the plaintiff. The plaintiff got political background and she is capable to resist anybody. The plaintiff also mentioned that she got one brother and she never looked after the welfare of their mother and he occupied the suit schedule property and she also stated that she alone looked after the welfare of her mother. But this is not concerned to this case, being a daughter she handed over 6 her mothers property ½ share she is entitled to that extent only and she is no way concerned with the property of others. The only intention of the plaintiff and her daughter is to cause obstruction to the s by ingress or egress and kept the family of the defendants on the street. Except that the plaintiff or her daughter are no way concerned with the site of the defendants. There is no prima facie, balance of convenience or any injury or loss as stated by the plaintiff as per the case of the plaintiff. Already list of documents filed in

I.A.No.369/2010 in O.S.318/2010. Hence, prays to dismiss the suit with costs.

04.Basing on the above pleadings, the following issues are framed:-

1) Whether the plaintiff is entitled for permanent injunction as prayed for?

2) Whether the plaintiff is entitled for mandatory injunction as prayed for?

3) To what relief?

05. During the course of trial, the plaintiff got examined as PW1 and exhibited Ex.A1 to Ex.A19. On behalf of the defendants none were examined and no documents were marked.

06. Heard arguments.

ISSUE NO.1:

07. It is specific case of plaintiff that suit schedule property originally occupied by mother of the plaintiff by name Tirumulapuram Durgamma wife of

Veeraswamy about 40 years ago and recognizing her possession and enjoyment,

Government got issued DK patta in DK.No.8/78 dated 05.04.1978 for an extent of Ac.0.05 cents and that in the year 1982 mother of the plaintiff settled Ac.0.02 1/2 cents in favour of plaintiff and submitted requisition to the revenue authorities for issuance of patta in favour of plaintiff and accordingly after due enquiry made by revenue authorities patta was given in favour of plaintiff to an extent of Ac.0.02 1/2 cents in favour of plaintiff and since the plaintiff has been in possession and enjoyment over the suit schedule property and had obtained service connection No.80 from Electricity Department and that remaining extent out of Ac.0.05 cents is occupied by the brother of the plaintiff. That plaintiff constructed flat "A" shown in plaint schedule plan FA, FA1, FA2 and FA3. FA- FA1 is 24 feet width, FA1- FA2 is 45 feet, FA2 FA3 is 24 feet width and FA3 - FA is 45 7 feet out of which plaintiff constructed a house i.e., FH, FH1, FH2 and FH3. FH-

FH1 is 13 feet, FH1-FH2 is 27 1/2 feet, FH2 - FH3 is 13 feet and FH3 - FH is 27 1/2 feet. The plaintiff left 8 feet width vacant site on northern side and that 17 1/2 feet on the eastern side, 3 feet width vacant site on southern side and 3 feet on western side for good light, air and to make repairs and plastering to the wall around the house. Plaintiff constructed both room on east south corner and has been in possession and enjoyment of plaint schedule as shown in plaint plan and paying property tax to the Grama Panchayat Koppolu for some period and later plaintiff has been paying tax to the Ongole Municipality. That plaintiff came to know that his brother has sold site on the souther side remaining land to some 3rd person and in turn the purchaser sold the same to some body and in turn the defendants herein purchased the same and that defendants high handedly encroached and made construction to an extent of 2 feet width site on southern side of house of plaintiff i.e., X1 - FA1, FA1-FA2, FA2-X2, X2-X1 which is 2 feet X 45 feet width site and when plaintiff questioned the defendants, defendants threatened the plaintiff with dire consequences and made propaganda in the locality to demolish the souther side wall of the plaintiffs house and will occupy the eastern side vacant site by demolishing the both room.

08. It is specific case of defendants that suit schedule land is

Government land originally allotted to one Purini Ramana Reddy son of

Narasimha reddy of Motumala Village and was in possession and enjoyment of suit schedule property and thereafetr in the year 1984 month of defendant purchased the said land from Purini Ramana Reddy and constructed hut in suit schedule property and applied for patta before the office of revenue authorities and accordingly patta was got issued on 15.01.2001 in the name of mother of defendants by name V. Varadamma after due enquiry that she is land less poor and thereafter said Varadamma also applied for electricity connection and obtained the same and also paid house tax and property tax and after demise of said Varadamma, defendants being legal heirs of said Varadamma continued possession and enjoyment over the suit schedule property and paying electricity 8 tax regularly and that house of defendants damage due to "Lyla " cyclone as such defendants commence to construct a house in place of thatched house and at the time of making foundation plaintiff and her daughter were also present and kept quite till the wall raised by the defendants to an height of 2 or 3 feet and that plaintiff and her daughter is intending to grab the site of defendants and to cause obstruction to the defendants by keeping the family of th defendants on streets and that defendants never encroached the land of plaintiff as alleged on the southern side of the house of plaintiff and that it is the plaintiff who occupied 1 1/2 feet to the southern side of her house belonging to defendants and the report of advocate commissioner clearly discloses that plaintiff constructed her compound wall on the boundary edge and there is no 3 feet site left on the southern side of her compound wall.

09. To prove the suit claim plaintiff got examined herself as PW1 and got marked Ex.A1 to Ex.A19 to prove that plaintiff is in possession and enjoyment over the suit schedule property. Defendants did not choose to cross examined PW1 and did not lead any oral or documentary evidence to prove their defence taken in the written statement.

10. It is admitted fact that ownership of the plaintiff with respect of suit schedule property is not disputed and about the fact that defendants having got his respective land on the southern side of land of plaintiff through

DK patta issued by the revenue authorities after due proper enquiry. However possession and enjoyment of the plaintiff in respect of suit schedule property though not disputed still the burden is upon the plaintiff to prove that the encroachment as mentioned in the plaint plan is made by the defendants. The documents marked under Ex.A1 to Ex.A19 discloses the plaintiff has got land over suit schedule property.

9

11. Perusal of Ex.A1 discloses that mother of the plaintiff is pattadar for the DK patta allotment in DK No.8/78 dated 05.04.1978 to an extent of

Ac.0.05 cents.

12.Perusal of Ex.A2 discloses that plaintiff is pattadar vide DK

No.134/406 to an extent of Ac.0.02 1/2 cents. Perusal of report of Advocate

Commissioner discloses that there is gap in between A & B marked construction to an extent of one feet width of vacant site in front of B marked basement of 7.2 feet. The actual construction made by the plaintiff regarding his house over suit schedule property when compared with plaint plan and advocate commissioner plan and regarding the vacant site left on the eastern side western side southern side is in variance.

13. Plaintiff pleaded that his brother has also got Ac.0.02 1/2 cents of land out of Ac.0.05 cents of land from their mother which mother of the plaintiff had got through DK patta under Ex.A1. The brother of the plaintiff who is having land on the southern side of land of plaintiff had sold to third party and that the said third part in turn sold to the mother of the defendants. Admittedly land of the defendants is on the southern side of the land of plaintiff and the land of defendants at the time of filing suit was constructed till basement containing pillars and there is no walls erected for the pillars on the four sides.

14. The possession and enjoyment of the plaintiff over the suit schedule property is not disputed, however the encroached area alleged by the plaintiff by the defendant is proved with the report of advocate commissioner where on the southern side of house of plaintiff the land found on ground is only 1 foot in between the house of plaintiff and defendant and the measurements shown from A1 to B3 as per commissioner plan the site found is 20.2 feet where as the site in between FA and FA1 found 24 feet which clearly reveals that the land of the plaintiff is being encroached by the defendant.

Defendants did not choose to cross examine PW1 to rebut the contention of 10

PW1 regarding the area encroached and did not dispute about the measurement mentioned in the advocate commissioner report.

15. Defendants did not lead any oral or documentary evidence to prove their defense taken in the written statement that suit schedule property on its southern side is the land of defendants and not of the plaintiff being encroached. Defendants though pleaded that their land to an extent of 1 1/2 feet encroached by the plaintiff and that the house of plaintiff is constructed on the boundary edge has not come forward to dispute the suit claim of the plaintiff and to prove their contention before this Court. The evidence of PW1 coupled with the report of the advocate commissioner prove the suit claim of plaintiff regarding the encroached area as shown in the plaint plan X1 - FA1, FA1-

FA2, FA2-X2, X2-X1 which is 2 feet X 45 feet width site. Therefore, with the above said discussion that this Court is of opinion that plaintiff is found in possession and enjoyment over the suit schedule property and the area shown as X1 - FA1, FA1-FA2, FA2-X2, X2-X1 which is 2 feet X 45 feet width site is been found to be encroached by the defendants and therefore plaintiff is entitled for relief of mandatory injunction and accordingly defendants are directed to remove the structures raised in X1 - FA1, FA1-FA2, FA2-X2, X2-X1 which is 2 feet

X 45 feet width site in plaint plan; failing which plaintiff is entitled to do so through process of Court. Plaintiff is granted permanent injunction in her favour and against defendants restraining the defendants and their men, followers from causing any sort of interference and obstruction in the possession and enjoyment of the plaintiff over the suit schedule property. Issue 1 & 2answered accordingly.

ISSUE NO.2;-

16.In the result suit is decreed with costs granting mandatory injunction in favor of the plaintiff and against defendants to remove the structures raised over X1 - FA1, FA1-FA2, FA2-X2, X2-X1 which is 2 feet X 45 feet 11 width site in plaint plan and in failure to do by defendants, plaintiff is entitled to do so through process of law; suit is decreed further granting permanent injunction in favor of the plaintiff and against defendants restraining the defendants and their men and followers from causing any sort of interference and obstruction in the possession and enjoyment of the suit schedule property as per plaint plan.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in open Court, this the 25th day of March, 2017.

Prl. JUNIOR CIVIL JUDGE, ONGOLE FAC/I.Addl. Junior Civil Judge, Ongole.

Appendix of Evidence

Witnesses examined

For Plaintiff: For Defendant:

PW-1: Thatiparthi Durga NIL

Documents marked

For Plaintiff: Ex.A1: Original Dk Patta in 8/78 dated 05.04.1978 issued in favour of plaintiff's mother

Ex.A2: Original DK patta in 134/1406 dated 30.06.1997 issued in my favour

Ex.A3: House tax receipt dated 04.11.1996 for September, 1995

Ex.A4: House tax receipt for March, 1996 dated 04.11.1996

Ex.A5: House tax receipt for September, 1996 dated 04.11.1996

Ex.A6: House tax receipt for March, 1997 dated 22.03.1997

Ex.A7: House tax receipt for March, 1998 dated 03.02.1998

Ex.A8: Demand notice for September, 1999

Ex.A9: House tax receipt for March, 2001 dated 21.01.2001

Ex.A10: Demand notice for 2nd half year i.e., 2004 to 2005

Ex.A11: House tax receipt for 2nd half year i.e., 2005 to 2006dated 03.02.2006

Ex.A12: Demand notice dated 30.05.2006

Ex.A13: House tax receipt dated 31.07.2006

Ex.A14: House tax receipt dated 06.09.2007

Ex.A15: Electricity demand notice for service connection No.80

dated 07.04.2010

12

Ex.A16: Electricity demand notice for service connection No.80

dated 07.08.2009

Ex.A17: Electricity demand notice for service connection No.80

dated 11.04.2008

Ex.A18: Electricity demand notice for service connection No.80

dated 14.02.2008

Ex.A19: Electricity demand notice for service connection No.80

dated 0305.2007

For Defendant:

P.J.C.J., ONGOLE,

FAC/I.A.J.C.J., ONGOLE 13 // True Copy //

I.ADDL. JUNIOR CIVIL JUDGE,

ONGOLE.

1 // True Copy //

I.ADDL. JUNIOR CIVIL JUDGE,

ONGOLE.

1

IN THE COURT OF THE I-ADDL.JUNIOR CIVIL JUDGE: ONGOLE

Present: Smt P. Lakshmi Kumari,

Prl. Junior Civil Judge, Ongole,

FAC I-Additional Junior Civil Judge, Ongole

Saturday, this the 25th day of March, 2017

Original Suit No. 318 of 2010

Between: Thatiparthi Durga, W/o. Gopalamu, Aged 65 years, Hindu, Coolie, R/o. D.No.10-145, Indira Colony, Opp. FCI Gowdowns, Ongole.

…........Plaintiff.

And

1. Unni Sarvana, S/o. Gopal Reddy, Aged 30 years, Hindu, Business, Indira Colony, OPP FCI Gowdowns, Ongole

2. Unni Rajendra Prasad, S/o. Gopal Reddy, Aged 27 years, Hindu, Buiness, Indira Colony, Opp FCI Gowdowns, Ongole. …..… Defendants.

This is a suit filed for permanent injunction restraining the defendants, their men, agents and followers from interfering with plaintiff's peaceful possession and enjoyment of plaint schedule property and for mandatory injunction directing the defendants to remove the structures raised over X1 FA1, FA1-FA2, FA2-X2, X2-X1 in the plaint plan, failing which the same may be done through process of law and for costs.

Plaint presented on: 07.06.2010Plaint filed on: 07.06.2010

Cause of Action:

Cause of action for the suit arose where the plaint schedule property is situated, originally it belongs to Government, when the plaintiff's mother Thirumalapuram Durgamma occupied the schedule land 40 years ago. The Government recognized her possession and enjoyment issued DK patta for an extent of Ac.0.05 cents. Later in the year 1982 the plaintiff's mother settled an extent of Ac.0.02 ½ cents in favour of plaintiff, when the plaintiff has been in peaceful possession and enjoyment of the plaint schedule property plaint schedule and plaint plan i.e., Flat “A” i.e., AF, FA1, FA2 & FA3, FA-FA1 is 24' feet width FA1-FA2 is 45 feet, FA2-FA3 is 24 feet width and FA3-FA is 45' feet. Out of which the plaintiff constructed a house i.e., FH, FH1, FH2 & FH3. FH-FH1 is 13/feet, FH1-FH2 is 27 ½ feet, FH2-FH3 is 13' feet and FH3-FH is 27 ½ feet the plaintiff left 8' feet width vacant site northern side, 17 ½ feet on eastern side, 3'feet width vacant site on southern side, and 3'feet on western side for good light, air and to make repairs & plastering to the wall around the house, the defendants also propagating that they will occupy the eastern side vacant site, and the same is within the jurisdiction of the Hon'ble Court.

Valuation and Court Fee:

Relief of permanent injunction valued at Rs.5000/- on which a C.F. of Rs.411/- is paid under Sec. 26(C) of APCF & SV Act.

Relief of mandatory injunction is valued at Rs.10,000/- on which a CF of Rs.786/- is paid under Sec. 26(C) of APCF & SV Act.

Total Jurisdiction value is Rs.15,000/-; total Court fee of Rs.1197/- 2

The suit is coming on 23.03.2017 before me for final disposal in the presence of Sri K. Srinivasulu, Advocate for the Plaintiff and of Sri P. Subba Rao, Advocate for Defendants, upon hearing the arguments, and having stood over for consideration till this day, this court doth order and decree:

1.that the suit be and the same is hereby decreed for grant of mandatory injunction in favour of the plaintiff and against defendants to remove the structures raised over X1-FA1, FA1-FA2, FA2-X2, X2-X1 which is 2 feet X 45 feet width site in plaint plan and in failure to do by defendant, plaintiff is entitled to do so through process of law;

2.that the suit be and the same is here by granted permanent injunction restraining the defendant and their men and followers from causing any sort of interference and obstruction in the possession and enjoyment of the suit schedule property as per plaint plan; and

3.that the defendants do pay to the plaintiff a sum of Rs.1199/- towards (Institutional costs) (CM & FC not filed)costs of the suit, bearing their own costs of Rs.-NIL-(CM & FC not filed).

(Plaint schedule and Plan are attached herewith) Given under my hand and the seal of the court, this the 25th day of March, 2017.

PRL. JUNIOR CIVIL JUDGE, ONGOLE

FAC/I.ADDL. JUNIOR CIVIL JUDGE, ONGOLE.

//TABLE OF COSTS//

For Plaintiff For Defendants (Rs.)(Rs.) Stamp on Vakalat2-00(CM &FC not filed) Stamp on Plaint1197-00 Stamp on process -- Advocate Fee -- Jr. Advocate Fee-- Typing charges-- Total costs of Rs.1199-00

P.J.C.J., ONGOLE,

FAC/I.A.J.C.J., ONGOLE

NOTE: The exhibited documents and non-exhibited documents, which are marked, have to be taken back by the parties concerned within the stipulated time with an undertaking to produce the same as and when required by the Court.

3