P. Radhamma

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IN THE COURT OF THE SENIOR CIVIL JUDGE AT

PUNGANUR

Present:Kum P. Radhamma, M.A., M.L.,

Senior Civil Judge, Punganur.

Monday, the Twenty – Third (23rd) day of October,

TWO THOUSAND AND SEVENTEEN.

O.S. No. 16 of 2010

1. Sri M.R.Nagaraja, (Died) aged about 35 years son of M.N.Subbarayappa, one of the Founder Trustee of the Temple by name Sri Bhoga Nanjundeswara swamy temple, Hindu, residing at D.No.24-81, Nagappalyam, Punganur town, Chittoor district.

2. Sri. Pagidi Sudhakar son of late Divakar, aged about 29 years, cultivation, residing at Aradigunta village and post, Punganur mandal, Chittoor district, A.P.,

3. Smt. M.Rohini wife of late Nagaraja, aged about 39 years, Hindu, now Chairmen of Sri Bhoga Nanjundeswara Swamy temple situated in Punganur town, residing at Nagappalyam of Punganur town and Municipality, Chittoor district. A.P.

2nd plaintiff added as per orders in I.A.No.401 of 2014 dated 04.12.2015.

3rd plaintiff being the legal heir of deceased 1st plaintiff added as per orders in I.A.No.411 of 2014 dated 04.12.2015.

.. Plaintiffs.

// Versus //

1. The Assistant Commissioner of Endowment, Chittoor,

2. The Inspector of Endowments, Chittoor,

3. The Executive Officer, Endowments, Group temples

office at Sri Kalyana Venkateswara swamy temple,

near Koneru, Punganur chittoor district. Amended as per orders in I.A.No.26/11 dated 03.02.2011.

.. Defendants.

This suit coming on 20-10-2017 for final hearing

before me in the presence of Sri. B.Venkatamuni and Sri

M.S.Harinatha Reddy, Advocates for the plaintiffs and of Sri.

Y.Bhaskar Reddy and Sri Y.Raghunatha Reddy, Advocates for the defendants; and upon perusing all the material papers on record and upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:

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J U D G M E N T

1) This is a suit filed by the plaintiffs for grant of permanent injunction restraining the defendants and their men and agents from in any way interfering with the management, administration and possession of the plaintiffs and two other founder trustees of Sri Bhoga Nanjundeswara swamy Temple, Punganur; and for costs.

2) It is averred in the plaint that one Virupaksha

Malleswaramma, Pagidi Diwakar, M.R.Nagaraja are the founder trustees of the temple by name Sri Bhoga Nanjundeswara

Swamy Temple situated near by Punganur Municipal Bus stand by virtue of Lok Adalath Award under Ex.A1 passed by Lok

Adalath at Madanapalle in O.S.No.6/2001 on the file of the

Hon'ble Additional District Judge's court, Madanapalle dated

23.04.2005 in between the above said founder trustees and the defendants 1 to 3. It is well aware of the same by the defendants. They have signed in the said Award along with their counsel represented by the Assistant Government

Pleader in the presence of the Hon'ble Chairman and the members of the said Lok Adalath.

3) The first plaintiff submits that the ancestors of the above said founder trustees by name Aradigunta Nagappa constructed the above temple about morethan a century ago.

The said Nagappa was the founder of the above said temple and enriched the deity by name Sri Bhoga Nanjundeswara swamy Temple, his family deity with the sole object and welfare and for 'Santaana Prapti'. The said Nagappa built the above said temple from of his own private income and managed by himself.

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4) During his life time he bare all the expenses of the institution though income out of his own property situated at Malumdoddi village for meeting 'Deepa, Doopa

Naivedhyalu' and other expenses of the said temple. Either the public in general or in any other have never contributed any single pai for the said temple and the said Nagappa only constructed and managed the said temple.

5) It is submitted that during the life time of

Nagappa he had managed the temple exclusively of his own independent right and after his demise, his successors and after them, their successors and ultimately the first plaintiff along with two other trustees have succeeded the exclusive right over the above said temple and they are in continuous possession and enjoyment of the above said temple without interruption of anybody else at any point of time.

6) It is submitted that there are so many registered deeds executed in between the ancestors of the first plaintiff and other trustees, family members in respect of the above said temple. The said registered deeds are clearly establishes and shows the continuous possession and exclusive right over the above said temple by the first plaintiff and his ancestors. Likewise under Ex.A2 copy of the partition deed dated 01.02.1986.

7) It is submitted that the first plaintiff and other founder trustees have constructed the shop rooms around the above said temple and let out the same to third parties and the plaintiff and the other above. Founder trustees are managing the said temple by paying monthly taxes to the said shop rooms and performed poojas of each and every day and celebrating the 'Maha Sivarathri' festival and also the other 4 festivals in the said temple by spending huge amounts in a grand manner to the knowledge of entire public in the

Punganur and surrounding villages. Except the first plaintiff and two other founder trustees, no other person have entered at any time in the management of the said temple with the traditional and custom of the community and the first plaintiff also giving salaries to the poojaries and workers of the said temple. The said fact also well known to the defendants 1 to 3 inspite of knowledge of the said fact, the defendants tries to interfere with the first plaintiff's and other founder trustees right, title and peaceful possession of the above said temple in the year 2001. So, on that the other founder trustees

Malleswaramma, P.Diwakar jointly filed the civil suit against the present defendants and against their higher officials and against the first plaintiff shown as 5th defendant and the tenants of the shop rooms who have not co-operating by that time in payment of rents regularly at the instance of the defendants 1 to 3 for declaration of the founder trustees with right, title and possession over the temple and for restraining the defendants by way of permanent injunction in

O.S.No.6/2001 on the file of the Additional District and

Sessions Court, Madanapalle. The said case was ended in

compromise before the Lok Adalath and passed Ex.A1 Lok

Adalath Award.

8) The first defendant and Commissioner of

Endowments, Hyderabad entered into a compromise with the plaintiff and other founder trustees. As per the terms of the compromise, the plaintiff and other founder trustees of the temple they being dissidents of the founder trustees namely

Aradigunta Nagappa and their progenies can administer and 5 maintain the above said temple in Punganur temple and the suit was dismissed against the remaining defendants who are not contesting. Accordingly the Lok Adalath Award was passed and the same is become final and conclusive one.

9) It is submitted that the defendants 1 to 3 with the active political influence, recently they tried to interfere with the management of the first plaintiff and other two founder trustees got issued a legal notice dated 20.02.2010 under Ex.A5 to the defendants 1 to 3 asking them not to interfere with the management and affairs and the administration of the first plaintiff and other founder trustees in respect of the said temple by virtue of Ex.A1 and the same was received by the defendants 1 to 3 under Ex.A6 and kept quite without sending reply.

10) The first plaintiff submits that the defendants 1 to 3 due to much political pressure, knowing pretty well about the passing of the said Lok Adalath Award, colluded together an tried to create some nominal charge list in respect of the management of the above said temple and also trying to interfere with the first plaintiff and founder trustees of the said temple activities and trying to restrain tenants of the shop rooms which are connected to the said temple to pay the monthly rents to the first plaintiff and other founder trustees without manner of right, title or possession whatsoever and about two days back when the first plaintiff came and create some nominal charge list. He send a letter to third defendant requesting not to take charge by virtue of Ex.A1 Lok Adalath

Award. But inspite of the said letter the defendants are trying to interfere with the peaceful possession and management, administration of the first plaintiff and other trustees.

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11) It is further averred in the plaint that the defendants 1 to 3 and their officials know the Lok Adalath

Award in O.S.No. 6 of 2001 with the help of police and other political leaders are trying to interfere with the management and administration of the 1st plaintiff and two founder trustees in respect of ‘Sri Bhoga Nanjundeswara Swamy Temple’ even by force. The 1st plaintiff and other founder trustees are in helpless condition without any support of the political parties or officials. If the defendants 1 to 3 have succeeded in their unlawful attempts, the 1st plaintiff and other founder trustees will be put to great and irreparable loss and troubles.

12) The 1st plaintiff being the one of the founder trustee of the temple has filed the above suit on behalf of other founder trustees namely Malleswaramma, Pagidi Divakar and there is no any conflict of interest between the 1st plaintiff and two other founder trustees to file a suit against the defendants 1 to 3 for permanent injunction. 1st plaintiff got issued a legal notice dated 20.12.2010 and the defendants received the said notice on 22.02.2010 and the statutory period is not completed as contemplated under section 80 of

CPC. The 1stpf craves the indulgence of this Hon’ble court to dispense with the section 80 ( c ) of CPC provisions. Hence the suit.

13) The defendant 3rd filed the written statement which was adopted by the defendants 1 and 2 assailing the averments made in the plaint and contended that in the year 2004 this defendant came to know that one Vontimitta

Pandurangaiah Chetty has filed a suit against one Vontimitta

Sreeram Prasad in O.S.No. 40 of 2002 claiming that the said

V.Pandu Rangaiah is the rightful owner of one of the shop 7 room belongs to the above said temple. So this defendant filed a petition and added as party to the said suit stating that the above said temple is the rightful owner of the said shop room and this defendant authorities have given the said shop room for the said V.Sreeram Prasad for rent and they are collecting the monthly rent from him. After due trial in the said suit in O.S.No. 40 of 2002 the Principal Junior Civil Judge,

Punganur pleased to dismiss the said suit in O.S.No. 40 of 2002 on merits on 28.02.2007 stating that this defendant who is the 2nd defendant in that suit is the rightful owner of the said shop-room maliga and the 1st defendant has to deliver of vacant possession of the said shop room and has to pay arrears of rent. Both the plaintiff and the 1st defendant in the said suit in O.S.No.40 of 2002 are close relatives as cousin brothers and they both colluded together and filed the said suit with a malafide intention to grab the valuable rights of this defendant over the shop-room maliga which is the subject matter of the said suit. After filing the petition and add as the 2nd defendant in the said suit in O.S.No. 40 of 2002 by this defendant , the 1st defendant in the said suit stated in his evidence in the said suit that he is tenant of this defendant and this defendant is the rightful owner of the subject matter of the said suit. After disposal of the said suit OS No.40/2002, the 1st defendant in that suit Vontimitta Sreeram Prasad vacated the said shop-room and delivered vacant possession of the same and paid the arrears of rent to this defendant.

This defendant as an Executive Officer of the said temple has taken possession of the said shop-room Maliga belongs to the above said temple under cover of panchanama dated 08.04.2007 itself. In that panchanama, the plaintiff, one of the 8 alleged founder trustee P.Diwakar, the archakas of the above said temple by name Archakam M.Viswanatham,

M.Manjunatha ( present archakas also) and some other elders.

In the said suit in OS No.40/2002 the plaintiff Vontimitta

Pandurangaiah contended that he got purchased the suit schedule shop room in the said suit from one Aradigunta family member under a registered sale deed dated 21.11.1994 and took possession of the same. This defendant has filed his written statement, that the vendor of the plaintiff in that suit in O.S.No.40/2002 has no iota of right over the same and the plaintiff in it could not derive any right over the same and the alleged sale deed dated 21.11.1994 is only a nominal and the same is not acted upon nor intended to be acted upon.

14) This defendant further contended that in OS

No.40/2002 V.Sreeram Prasad was a tenant of the temple and paid rent to the temple and obtained receipt from this defendant.When A.P.Transco Urban, Punganur issued notice to the tenant of the temple V.Sreeram Prasad to disconnect electricity service connection in collusive with the plaintiff in

OS No.40/2002, the Legal Adviser, Endowments issued a legal

notice to the Assistant Engineer, A.P.Transco, Urban, Punganur not to disconnect as the said shop-room belongs to the temple and the tenant is paying electricity charges regularly.

15) All the shop-rooms are belongs to the above said temple. The shop-rooms and the said temple situated in the S.No.115/13 in an extent of Ac.0.22 cents. All the relevant revenue records are clearly and categorically showing the said

S.No., belongs to ‘Sri Bhoga Nanjundeswara Swamy Temple’.

There are 12 shop-rooms in front of the temple and either side. In the month of December, 2000 the then Assistant 9

Commissioner, Endowments, Group temples, Punganur pleased to take possession of the said shop-rooms on 13.12.2000 in Roc.No.178/2000 as they belonged to ‘Sri Bhoga

Nanjundeswara Swamy Temple’ and as per the directions of the Commissioner, Endowments, Hyderabad and as per orders of the Hon’ble High Court in W.P.No.14327/98 dated 08.08.2000 and W.P.No.1114/2000 dated 19.10.2000 under a pqanchanama, all the press reporters, archakas, revenue officials, Municipal officials, police were attested the said panchanama.

16) The said temple ‘Sri Bhoga Nanjundeswara

Swamy Temple’ at Punganur situated very near to the old bus- stand. As per the entries recorded in column No.3 in the approved property register under Sec. 38 of the Act, the temple is in existence from the date of inception by the village. Sri Thimmappa has filed an application under Sec. 38 of the Act for registration in the year 1977 and a certificate has been issued as required under the provisions of the Act. A non - herediatary Trustee Board was appointed in

Roc.No.356/B-1/81-82, dated 28.01.1982 for the proper management of the temple. The Trustee appointed have not shown interest, after received complaints from the Bhakthas of that area caused enquiry into the contents of the petition by the 2nd defendant and with an intention to safe-guard the properties of the temple a fit person was appointed suspending the Trustees from the office of the Trusteeship.

The above said temple is a public temple. There is no bar to appoint any devotee as fit person to manage the affairs of the temple. The said temple invoke the provisions of the Act. The

Executive Officer was appointed to the institution by the 10

Commissioner, Endowments department, Hyderabad in his proceedings in D.Dis.lNo.C2/55268/91 dated 15.02.1992 to the temple. The Executive Officer has possessed necessary right and responsibility to safe-guard the temple and its proceedings according to the provisions of the Act. The temple has not been burdened to bear the salary of the Executive

Officer even when so appointed.

17) Hence there is no impact on the financial position of the temple by the Appointment of Executive officer on the other hand the financial position of the temple is found to improve on setting right the administration of the temple by the Executive Officer. Hence the extention of appointment of the neighbouring Executive officer to the temple is with a pious intention of improving the temple from all denominations. The temple is a public temple and never declared as denomination temple. The temple is facing to East and “Lord Eswara’ is presiding Deity. The temple is published under Section 6 (c ) (ii) of the Act and also registered under

Sec. 38 of the Act in the year 1977. As per contention of the register no hereditary declaration was obtained by the Trustee from the Deputy Commissioner, Endowments department,

Kurnool under Sec. 77 of the old Act. The temple is having the properties as per approved property Register in S.No.167/1

Dry Ac.4.19 cents at Melumdoddi village and in S.No.37/1 Dry

Ac.3.99 cents at Punganur village. This defendant has taken charge as Executive officer on 27.03.2010 from the previous

Executive officer and now he is discharging his duties as

Executive Officer to the said temple continuously.

18) The plaintiff has filed the suit directly before this court without exhausting his remedy before the proper 11 forum i.e., The Commissioner of Endowments. It is very clear under Sec. 151 of the Endowment Act once the dispute is in between Endowments department, the plaintiff has to agitate the same before the proper Forum as stated above. So, there is no jurisdiction to this court to try the suit. Hence prayed this court to dismiss the suit.

19) Basing on the above said pleadings, the following issues have been settled by this court for the purpose of trial:

1. Whether the plaintiff is in possession and

managing and administering the suit schedule

property ?

2. Whether there plaintiff is entitled for permanent injunction as prayed for ?

3. To what relief ?

20) The following additional issues have been settled for trial on 15.02.2016:

1) Whether the orders of the Honourable High Court of Judicature, Hyderabad in W.P.No.14327 of 1998

dated 08.08.2000 and W.P.No.1114 of 2000 dated

19.10.2000 are binding on the plaintiffs ?

2) Whether the Lok-Adalath Award dated 23.04.2005 passed in O.S.No. 6 of 2001 on the file of Additional District Judge’s court, Madanapalle is binding on the defendants ?

On perusal of the plaint, written statement and other material papers on record, the

above two additional issues are struck off.

21) To ensure the plaintiff’s claim, the second plaintiff P. Sudhakara examined as PW1, P.Ws. 2 to 5 are examined on behalf of the plaintiffs. Exs.A1 to A9 are got it marked through PW1 to PW5. On behalf of the defendants, the third defendant J. Ekambaram examined as DW-1 and Exs.B1 to B13 have been marked on behalf of the defendants.

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22)Head both sides.

23) ISSUE NO.1:Whether the plaintiff is in possession

and managing and administering the suit schedule

property ?

Admittedly there is no dispute that the plaintiff claims the suit property under the equitable relief of bare injunction in respect of the plaint temple. It is also an admitted fact that as per Ex.A1 Lok Adalath in O.S.No.6/2001 against this defendants and other defendants. It is also an admitted fact that one Ontimitta Srirama Prasad filed a suit in OS

No.40/2002 claiming the rightful owner of one of the shop room belongs to the above said temple and the third defendant filed a petition under Order 1 Rule 10 and added as a necessary party. The said suit was dismissed on merits and made a finding that the defendant in that suit is a rightful owner of the said shop rooms maliga and the first defendant has to deliver the vacant possession of the said shop room and has to pay arrears of rent. In view of that the said Ontimitta

Srirama Prasad has delivered the possession to the

Endowment authority and used to pay the rents under a cover of panchanama dated 08.04.2007 itself. In that panchanama the plaintiff and the alleged founder trustee V.Diwakar, the archaka of the above said temple by name Archakam

M.Viswanatham, M.Manjunath and some other elders. It is also an admitted fact that at present the plaintiff has not been in possession and enjoyment of the same as the Endowment authority has already taken over the possession of the temple and other shop rooms in the year 2000 itself.

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24) It is the claim of the plaintiffs in the suit is that the second plaintiff examined as PW1 and one Smt.

Virupaksha Malleswaramma, Pagidi Diwakar and the first plaintiff are the founder trustees of the temple and they claim the suit property under Ex.A1 Lok Adalath Award, they filed the suit in OS 6/2001 against the defendants and the same was ended by way of passing an Award before the Lok

Adalath. The ancestors of the founder trustees by name

Aradigunta Nagappa got constructed the above temple called as 'Sri Bhoga Nanjundeswara swamy Temple', Punganur about morethan a century ago. The said Nagappa was founder of the said temple and enshrined the deity by name 'Sri Bhoga

Nanjundeswara swamy Temple', Punganur and his family diety with the sole object and welfare of his family and for 'Santaana

Prapti'. The said temple was built out of the income of the said

Nagappa derived from his private assets and the same is treated as private institution and managed by himself. During his life time he made all the expenses of the said institution through the income from his own properties situated at

Melumdoddi village for meeting ' Doopa Deepa Naivedhyalu' and other expenses of the said temple. Either the public in general or any other department including the defendants never contributed any single pai for the said temple and the said Nagappa only constructed and managed the said temple.

The said Nagappa managed the said temple in his own independent own and exclusive right and after his demise, his successors after their successors and ultimately the plaintiff along with the other two founder trustees have succeeded the above said temple. Hence the plaintiff filed the suit and they are having a registered documents executed in between their 14 ancestors and other founder trustees, family members in respect of the said temple.

25) The founder trustees have constructed the shop-rooms around the temple and let out the shop rooms to some third parties and the first plaintiff and other founder truestees are managing the temple by paying monthly rents to the shop-rooms and performing pooja and each and every day and celebrating 'Sivarathri' festival and other festivals in a grand manner. Except the plaintiff and two other founder trustees, no other person have entrusted at any time in the management of the temple.

26) On the other hand the third defendant filed written statement, assailing the averments made mentioned in the plaint, admitting the suit filed by the plaintiff in OS 6/2001 against the defendants and the same was ended compromise before Lok Adalath under Ex.A1 and also admitting the suit in O.S.No.40/2002 filed by one Ontimitta

Sriram against one V.Pandurangaiah and the same was dismissed and the said Ontimitta Sriram hand over possession to the Endowment authority. It is contended that this court has no jurisdiction and the plaintiff have not in possession and enjoyment of the temple property at the time of filing of the suit as per the orders in W.P.No.14327/1998 dated 08.08.2000 and W.P.No.1114/2000 dated 19.10.2000 under a panchanama. But unfortunately those writ petitions are not filed in the court. It is contended that the Executive Officer of the temple is took management of the temple under a cover of panchanama in the presence of all the press reports,

Archakas, revenue officials, Municipal authorities, police they 15 attested the said panchanama marked Ex.B13 itself. So, in all these aspects the plaintiffs are mismanaging the funds of the plaintiff temple, then the Endowment authority have taken over the same for management of the temple. Hence prayed this court to dismiss the suit.

27) In respect of the documentary and ocular evidence, I have gone through and scrutinized the same. The second plaintiff Sudhakar examined as PW1 who is the of late

Diwakar who filed his chief affidavit, stated in his evidence and admitting the filing of writ petitions before the Hon'ble High

Court of A.P., admitting the filing of suits by Ontimitta

Sreedhar in O.S.No.40/2002 on the file of Prl. JCJ Court,

Punganur in S.No.115/13 and admitting the S.No.115/13 he shown as 'Sri Bhoga Nanjundeswara swamy Temple',

Punganur in Ex.B5 10(1) and No.2 adangal and No.3 pahani and the settlement fair adangal under Ex.B6. Both the documents clearly proves that the above suit temple is belongs to 'Sri Bhoga Nanjundeswara swamy Temple',

Punganur but not mentioned any one of the same i.e., the alleged founder trustees by name Aradigunta Nagappa or any other name of the plaintiffs. It is sufficient to prove that the property claimed by the plaintiffs as shown in the name of

Lord Sri Nanjundeswara swamy temple but not in the name of any other individual.

28) On the other hand, the plaintiffs have not filed any other documentary proof that the said Aradigunta

Nagappa has built the temple and gifted the property for management of the said temple but it is the pleading of the plaint that there are several sale deeds are in existence in 16 respect of the plaintiff's temple but absolutely nothing was made mentioned in respect of the ownership and possession of the plaintiff's temple. So in those such and such circumstances this court inclined to come to conclusion that the plaintiffs are not able to establish that they are the founder trustees.

29) Moreover the plaintiffs depending upon mainly on Ex.A1 i.e., the Lok adalath Award. On perusal of the said

Award in para No.2 it was clearly made mentioned that the plaintiffs 1 and 2 and the 5th defendant and their progeny can administer and maintain and Mandir i.e., 'Sri Bhoga

Nanjundeswara swamy Temple', situated at Punganur town,

Chittoor district. The suit against the defendants 6 to 21 is dismissed. So, it is very clear that only to maintain and administer the temple and they are not claiming any such other relief under Ex.A1 Lok Adalath Award but unfortunately the plaintiffs claims the suit property by virtue of Ex.A1.

Except that they have not filed any documentary proof to claim the temple property. It is the specific plea of the plaintiffs that there is no appeal against the order under

Ex.A1. No doubt, the defendants have not preferred any appeal against the orders passed in Lok Adalath under Ex.A1.

In ocular evidence of Executive Officer examine as DW1, the deceased first plaintiff and the father of second plaintiff are managed the temple upto 2010 from the year 2005.

Thereafter some allegations made against the deceased first plaintiff and the father of the second plaintiff and the

Endowment authority has taken over the temple in the year 17 2010. It is the claim of the Endowment authority a panchanama was prepared in the dear 2002 itself.

30) The plaintiffs filed Ex.A2, the copy of partition deed dated 01.02.1986 in between the ancestors of the founder trustees. In this document itself, there is no particulars of the ownership and the suit property. In the plaint as well as chief affidavit of PW1 itself not disclosed about the existence of the plaintiff temple. It is stated by DW-1 that the plaintiff temple is the ancient temple at Punganur town. The said temple was built by Aradigunta Nagappa, till 2002 the above said persons are maintained the plaintiffs temple and thereafter Executive Officer was appointed to lookafter the temple by the Endowment throaty. There are nearly twenty shop-rooms were erected around the temple prior to 2002 by the founder trustees. As per his specific evidence, the above said persons who claims the temple are not attend at the time of preparation of the panchanama and present any explanation before the Endowment authority held in the presence of Revenue Inspector and others under Ex.A13.

31) On the other hand, the defendants filed Exs.B8 to B12 which are the payment receipts of the shop-rooms for the years 2001 – 2002, 2002-03 and 2003-04. So, from the years 2002 to 2004 the plaintiffs are not in possession and maintain the plaintiffs' temple as per the payment receipts filed by the defendants under Ex.B8 to B12. Though the plaintiffs filed Ex.A3 tax receipt pertaining in the name of

Malleswaramma. The electricity bills under Ex.A4 the name of

Malleswaramma and the Executive Officer, Endowment authority are found place. Ex.A5 is the legal notice dated 18 20.02.2010 claiming the suit property and the same was received by the defendants but they have send any reply and it is the explanation offered to the DW1 in this regard, he has stated that the Endowment authority is in possession and management of the temple. Due to which the defendants have not sent any reply. Ex.A6 is the acknowledgments of the legal notices, Ex.A7 is the Aadhar card of one Pagidi Lingamma,

Ex.A8 is the certified copy of the Gift settlement deed dated 20.07.1952 executed by N.Gundamma @ Nanjamma in favour of Pagadi Somappa. No suit survey number and its extent was made mentioned in it. There is no proof that the property mentioned in the said paimaish numbers are correlated to the suit property and there are several properties were gifted. Ex.A9 is the unregistered will executed by

Diwakar in favour of PW4 Rohini who is the first wife of first plaintiff in respect of the suit properties. PW-5 is the first attestor of Ex.A9 by name Gowramma. The second wife of first plaintiff is alive.

32) The evidence of PW4 Rohini is that the suit schedule temple is under the possession and enjoyment of the

Endowment authority and she has not filed any record to prove that she is one of the founder Trustee of the temple. In the year 1997 her grandfather Aradigunta Nagappa constructed the suit temple, admitting that the suit temple has been in existence for several decades.

33) In view of the above admissions made by PW4

Rohini, her document Ex.A9 cannot be taken into consideration as the said temple is built and in existence for 19 several decades and she has not filed any record that she is one of the founder trustee of the said temple.

34) One T.Mallappa who is the third party who examined on behalf of the plaintiffs as PW-2, he has stated that he has no proof to construct the temple by Aradigunta

Nagappa and that temple was maintained by the second plaintiff and one Malleswaramma and he is closely related to the second plaintiff as PW1. He do not know the suit survey number and its extent but there are sixteen shop-rooms are in existence in and around the temple and he does not know who paid the electricity charges. So, his evidence is no way helpful to the plaintiffs.

35) One Pagidi Lingamma who is a third party is examined as PW3, she is the grandmother of PW1. The

Endowment authority appointed the Archakas to perform the pooja of temple. Diwakar who is her son constructed the temple and shop-rooms about twenty years back. Ex.A8 Gift settlement deed was executed by her mother in favour of

Pagadi Somappa. Her evidence also is noway helpful to the case of the plaintiffs.

36) On the other hand, Ex.A4 possession panchanama . In pursuance of the decree and Judgment in OS 40/2002 passed against Ontimitta Sreeramau was made mentioned in the said panchanama dated 08.04.2007. The temple was taken over by Endowment authority as per the directions of the Prl. JCJ Court, Punganur in the presence of first plaintiff Nagaraja, P.Diwakar, V.Jagadeesh and some others. By virtue of Ex.B4 the temple was went under the purview of Endowment authority in the year 2007 itself. But 20 the suit is filed in the year 2010. So, by the date of filing of the suit the plaintiffs are nothing to do with the suit property.

Hence the above said issue is answered accordingly.

37) ISSUE NO.2: Whether the plaintiff is entitled for permanent injunction as prayed for ?

It is the averments made in the written statement that this court has no jurisdiction to entertain the suit as there is a special Tribunal is launched and the civil court has no jurisdiction. Admittedly the Tribunal is in existence, certainly this court has no jurisdiction as the dispute is in between the individual and the Endowment authority. If the special tribunal is in existence the above said dispute was decided by the competent authority but not this court. If really the Tribunal is not in existence certainly this court has got authority to try the suit. So, in view of the above aspect itself this court has no jurisdiction to entertain the present suit, is one aspect. The another aspect that the plaintiff has not able to establish that they are the founder trustees of the suit temple and the

Nagappa built the temple in several decades ago and they are having a documentary and ocular evidence for that proof. In the absence of the above, this court concludes that the plaintiffs are not able to establish their claim.

38) On the other hand, the Endowment authority has filed relevant documentary and ocular evidence by proving that the Endowment authority has taken over the temple under the decree and Judgment in O.S.No.40/2002 and taken over the same under Exs.B1 and B2. The Endowment authority added as a necessary party in I.A.No.116/2004 under

Ex.A3 and the possession panchanama was held under Ex.B4.

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As per Exs.B5 and B6, 10(1) and No.2 adangal and No.3 pahani, settlement fair adangal the name of 'Sri Bhoga Nanjundeswara swamy Temple', Punganur was made mentioned and no name of Aradigunta Nagappa or any one of the name of trustees in the above said Exs.B5 and B6.

Moreover Ex.B8 to B12 are the payment receipts of the year 2001 to 2004 to the shop-rooms. The panchanama under

Ex.B13 attested by first plaintiff and Diwakar and others at the time of taken over the temple by virtue of Exs.B1 and B2, itself is sufficiently proves that the plaintiffs are not in possession and management of the plaintiff's temple.

39) Viewed in any angle and in view of the above foregoing discussion, this court concludes that the plaintiffs are not able to establish the equitable relief of bare injunction as they are not in possession and management of the plaintiff's temple. Hence the suit is liable to be dismissed. This issue is also decided accordingly.

40) ISSUE NO.3: To what relief ?

In view of the above foregoing discussion, this court concludes that the suit is liable to be dismissed.

41) In the result, the suit is dismissed, without costs.

Typed to my dictation directly on computer by the Personal Assistant of this court. Corrected, signed and

pronounced by me in the open Court this the 23rd day of

October, 2017.

SENIOR CIVIL JUDGE,

PUNGANUR.

APPENDIX OF EVIDENCE

Witnesses examined for Plaintiffs: Defendant:

22

PW.1: P. Sudhakara,DW1: J. Ekambaram PW2: T. Mallappa, PW3: P.Lingamma, PW4: M. Rohini, PW5: M.Gowramma.

Exhibits marked for

Plaintiffs:

Ex.A1: Certified copy of Lok Adalath Award in O.S.No. 6 of 2001

dated 23.04.2005 on the file of Hon’ble Additional District

Court, Madanapalle,

Ex.A2: Registration copy of partition deed dated 01.02.1986 in between the ancestors of founder trustees,

Ex.A3: Municipal Tax receipts paid by Smt. Malleswaramma one of the founder trustee ( two in number),

Ex.A4: Electricity bills stands in the name of Malleswaramma one of the founder trustee ( three in numbers),

Ex.A5: Office copy of legal notice dated 20.02.2010,

Ex.A6: Acknowledgments,

Ex.A7: Xerox copy of Aadar card of Pagadi Lingamma,

Ex.A8: Certified copy of Registered Gift settlement deed dated 20.07.1952 executed by N.Gundamma @ Nanjamma in favour of Pagadi Somappa,

Ex.A9: Will dated 18.12.2012 executed by P.Divakar in favour of

Rohini.

Defendants:

Ex.B1: Certified copy of Judgment in O.S.No. 40/2002 dated 28.02.2007,

Ex.B2:Certified copy of decree in O.S.No.40/2002 dated 28.02.2007,

Ex.B3: Office copy of the petition dated 09.01.2004 in

I.A.No.116/2004 in O.S.No.40/2002,

Ex.B4: Possession panchanama of the 3rd defendant dated 08.04.2007,

Ex.B5:Certified copy of 10(1) and No.2 adangal,

Ex.B6:Certified copy of Settlement Fair D.Adangal,

Ex.B7: Office copy of the notice dated 11.08.2003, 23

Ex.B8: Certified copy of receipts passed for the years 2001 and 2002,

Ex.B9: Certified copy of receipts passed for the years 2001 to 2003,

Ex.B10: Certified copy of receipts passed for the year 2001 to 2002,

Ex.B11: Certified copy of receipts passed for the year 2001 to 2004

February,

Ex.B12: Certified copy of receipts passed for the year 2001 to

March, 2004,

Ex.B13: Certified copy of panchanama conducted by the 3rd defendant.

S.C.J.

DRAFT JUDGMENT

IN O.S.NO. 16 OF 2010

DATED 23.10.2017.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT

PUNGANUR

Present:Kum P. Radhamma, M.A.,M.L.,

Senior Civil Judge, Punganur.

Wednesday the Twenty – Fifth (25 th ) day of October,

TWO THOUSAND AND SEVENTEEN.

O.S. No. 61 of 2011

1. Sri Gajjela Ravindra Reddy, aged about 41 years son of Late G.Sivarami Reddy, Hindu, living by cultivation, residing at D.No.5-23,Berupallevillage, Pengaragunta post, Palamaner Mandal, Chittoor district,

2. Sri G.Nagesh Babu, aged about 45 years son of Sri Gangarapu Venkatappa, Hindu, residing at D.No.27-136/1, Police Line street, Punganur, Punganur mandal, Chittoor district.

2nd plaintiff added as per orders in I.A.No.230/2016 dated 17.10.2016.

.. Plaintiffs. // Versus // The Punganur Municipality, represented by its

Commissioner, Punganur, Chittoor district.

..

Defendant.

This suit coming on 24-10-2017 for final hearing

before me in the presence of Sri D. Venkatramaiah Chetty and

Sri P.Prasad, Advocates for the plaintiffs and of Sri. V.S. Reddy,

Advocate for the defendant; and upon perusing all the material papers on record and upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1)This is a suit filed for (a) declaration of right and title of the plaintiff over 'B' schedule disputed suit property covered by the points 'ABFEA' of rough sketch annexed to the 2 plaint and direct the defendant authorities to deliver possession of the same within the time specific by the Court, failing the same be delivered through the process of the Court,

(b) directing the defendant authorities to remove the unauthorized structures in the plaint 'B' schedule disputed property covered by the points 'ABFEA' of rough sketch annexedx to the plaint consisting of a compound wall etc., in rapid progress making in roads into it by them within the specified time by the Court, failing which the Court may be pleased to order to remove the same by means of mandatory injunction, (c) granting perpetual injunction restraining the defendant authorities, their men and agents from proceeding with further unauthorized structures making in roads into the disputed suit 'B' schedule property covered by the points 'ABFEA' of rough sketch (d) and for costs of the suit.

2)The plaintiff submits that the agricultural in an extent of Ac 2.00 cents comprised in S. NO 136/3B/1 of

Melupatla, within the limits of Pungnaur Municipality was oro9ginally owned and possessed by the family of Ande

Balaramaiah of Punganur Town which in continuation of its and interrupted peaceful possession enjoyment began to part with their rights to third parties for house sites apart from constructingGokulChitraMandhirandGokul

Kalyanamanadapam by forming a layout roads for access of public as well as their vendors to have ingress and agrees into their respective sites acquired it. It is not out of place of submit that the afore said Ande family has allowed the defendant authorities to hold to keep and improved the public roads, vacant site meant of public purpose such as Municipal park, school etc., setting upon the said authorities by way of 3 gift in the year 1990. Accordingly the defendant authorities have been holding keeping and improving the public roads vacant site meant for public purpose.

3)The plaintiff submits that he is a rightful owner of the property morefully described in A schedule covered by the bounds ABFCDEA as shown in the rough sketch annexed to the plaint in pursuance of his acquiring from Sri Andegondhi

Suryanarayana Raju son of A Kodanda Raju resident of

Murigimatam street, Nanasaheb Pet of Punganur being his self acquired by way of purpose from the subsequent rightful owners Smt Ponepalli Lakshmikanthamma and Smt Srikakulam

Padmavathi a view of his purchase under regd. Sale deed

dated 16.12.2001 for a valid and proper consideration as D NO

439/2008. The plaintiff was put in physical possession and enjoyment of the suit A schedule property that he is conveyed by his vendor and even date of sale and as such he has been continued his possession ever since the date of his acquiring as rightful owner. The defendant authorities happens to be the eastern owner of the plaintiff which fact is evidence and clear from the boundary reticles of his instrument of the sale.

4)The defendant authorities being the eastern side owner of the plaintiff in respect of the piece of land which was set a part in the layout map by the original owner meant for public purpose for common use was very much contemplating to put up fencing ion course of developments in the town in usual course after utilizing the sanction sum by the government. The defendant authorities were very much intending to make encroachments without fix of the boundary line properly into the A schedule mention property without confirming and restricting land settled upon it resulting in 4 clear invasion over the legitimate civil rights of the plaintiff over hi exclusive suit A schedule mention property to his loss and determine which the defendant authorities are not expecting to do so. However and whatever the plaintiff has absolutely made no objection for such contemplated developments restraining to the land so settled by the original owners as donors without making in roads into the vacant site of him among others. IN the pressing and prevailing circumstances a legal proportionery notice dated. 26.05.2010 under Ex A5 was caused to the defendant and the same acknowledge by the defendant under EX A6 but they neither complied nor issued any reply within time.

5)The defendant authorities asked to take notice of the service protest with objection in making indoors into the suit A schedule mention property of plaintiff while effecting the contemplated developments restricting to the land settled for public purpose if necessary by effecting survey in the presence of interested parties affording clear and proper opportunity to them in accordance the principles of nature justice quite considering the precise and valuable civil rights of the plaintiff which are most justified besides being legal without any ambiguity for avoiding any future complications failing which the plaintiff has to initiate appropriate legal proceedings in preservation of his legal rights for which he is perfectly entitled within the four corners of law by taking resource levying suitable steps and the defendant authorities alone will be held liable for the consequence there of including the costs and damages etc., . They were asked to await unpleasant vexatious litigation in that regard duly complying in the legitimate demands of the plaintiff. Which are most 5 justified and conscionable in the eye of law giving priority over other things without leaving him to face mental ebony and torture. The defendant authorities have successfully made stout encroachment making in roads into the suit A schedule mention property to an extent of 23rd feet approx. on eastern side morefully described in the suit B Schedule which is called as suit property for brevity sake and proceedings with the erection of compound wall in lightening speed as noticed by the plaintiff on 28.06.2011 on his occasional formal visit in natural course. Immediately the plaintiff has taken steps to have photo snaps depicting physical features in and around the plaint schedule under Ex A7 i.e., photo snaps along with

CD showing the rapid progress erection work of compound wall etc.,.

6)The defendant authority highly made injustice besides illegal on their part. There is no scrap of paper and any record evidencing their possession and title to the suit disputed property. In view of denial of the title to the suit property by the defendant authority on the face of things the plaintiff is forced to file a suit for declaration of his title and delivery of possession of the disputed suit property and mandatory injunction to remove the structures consisting of compound wall which is in progress making roads into the suit property covered by the points ABFEA of rough sketch annexed to the plaint so also to restrain the defendant authority from proceeding further with their past haste constructions making in roads with the disputed property and for suit cost.

7)The defendant authorities has levied vacant land tax over the plaint A property so also allow vendor of the 6 plaintiff to remit certain sums in respect in of his exclusive absolute property in exercise of his precious valuable tights duly recognized his Cristal clear rights by the defendant authority as such the defendant authority are quite stopped to say anything contra disclaiming the rights of the plaintiff including his predecessor right title over the suit schedule property in any manner of fashion.

8)It is submitted that plaintiff include his predecessors right title have got adverse possession till he was dispossessed by the highhanded hands of the defendant authority recently, over the disputed suit property. ON the other hand the defendants possesses no documentary evidence established their title and earlier possession prior to the date of their dispossession recently . Under Article 64, 65 of the Limitation Act 1963 the plaintiff has to prove his title only and if such title is proved it is for the defendant authorities to show how the title of the plaintiff is loss and how the possession his adverse as against the plaintiff.

9)The suit is filed for declaration of title , delivery of possession, mandatory as well as perceptual injunction and for suit cost. If any difference of court is payable over the plaint while confirming the extent covered by the suit B schedule property the plaintiff under takes to comply with the same as and when directed to do so by this court.

10)The plaintiff being busy in his domestic has empowered and authorized his GPA agent under Ex A1 to do all acts such as administer manage etc., on behalf of him as he is not in a possession attend them personally out of his total confidence with a trust and such acts done by him will be binding against him as if they were done by him as he is his 7 well wisher. The proposed 2nd plaintiff has been assigned with interest in the suit property by the plaintiff during the pend ency aforesaid suit. Hence the suit.

11)On the other hand the defendant filed written statement assailing averments made mentioned in the plaint and admitting the execution of gift deed in favour of the

Municipality , Punganur who is the present defendant itself .

The agricultut5al wet land to an extent Ac 2.28 cents in S. No 136/3B/31 of Melupatla viullage of Punganur Municipality originally belongs to One Ande Blalaramaiah which was approved by Deputy Tahsildhar and Commissioner of C.P of AP

Hyderabad for the residential layout vide LP NO 85/90 and it is also admitted that the owner was handover the land for roads and open place for the purpose of public to the defendants authority through a registered gift deed under Document NO 3044/1990 and after receiving the roads and open place for the purpose of the public the defendant municipal authority was laid a cc road and also protected the open place for the purpose of public by way of barbed wire fencing by planting the stone posts and kept the same in possession of the defendants municipal authority.

12)This defendant submits that the defendant municipality is not aware of the transaction made with regard suit schedule property with regard to the plaint schedule property and the open placement for public purpose was a n absolute possession of the defendants municipality by way of barbed wire fencing since from the year 1990 from the date of receipt of the same through a registered gift deed the defendants municipal authority is not aware of the suit schedule property as it was not fallen in the approved layout 8 area and the same was fallen in un-authorised layout area and will not have any authority for the plot measurements to checkup in future disputes in any arises.

13)This defendants submits the defendant municipality is a absolute possession of the site by way of barbed wire fencing since its acquisition through the gift deed which is gifted by the land owner and there is no need to survey again for the suit schedule property. As the plaintiff was purchased the plot showing the eastern boundary of the plaintiffs plot as the municipal authority land left for the public purpose and the plot of the plaintiff being in an un-authorised layout area and it is necessary to get surveyed and fix up the boundaries keeping the eastern boundary as fixed one as it was in existing by way of barbed wire fencing . Now there is a compound wall.

14)It was admitted by the defendant has levied vacant land tax to the vendor of the plaintiff when he approached the defendants municipality for the construction of the building and for permission sought for the construction of building was refused within an endorsement given to the vendor of the plaintiff while B.A NO 32/2004/GI. ON 13.04.2004 stating that the proposed site falls in the municipal open place for the purpose of the public and after wards VLT was not collected for the above said site. As such the vendor of the plaintiff and the plaintiff are also having well knowledge about the disparity in a suit schedule property the vendor has purchased the suit schedule property and approached defendants municipal authority for interim reliefs. Hence prays this court to dismiss the suit.

9

15)After amending the plaint an additionalwritten statement was filed and admitting the executing of the gift deed in favour of Municipality , Punganur in S NO 136.3B/1 an extent of Ac 2.00 cents for public purpose as Municipal park and school etc., and it was also approved by the defendant.

The defendant is in possession and enjoyment of the land for which gifted to this defendant by original owner Ande

Ramaiah. The defendant submits that the defendants authority have no necessity to encroach into the land of the plaintiff and have got right to develop the area as per the directions of the higher authorities and as per law. This defendant asked the plaintiff to avoid unpleasant vexation litigation. This defendant has no necessity to erect compound wall in lightning speed as alleged by the plaintiff.

16)This defendant is in possession of the property which is gifted to this defendant authority as stated above but more than that . The plaintiff filed the present suit for declaration of his title and mandatory injunction to remove the compound wall which was constructed by the defendant authority long back to cause loss and give trouble to public.

Infact the plaintiff are trying to encroach into the public property i.e, the defendants site only with dishonest intention to knock away the defendants site.

17)This defendant is at liberty to stop encroachments any carried by the third parties or the plaintiffs . The defendants submits that plaintiff is not entitled for declaration of right title for mandatory injunction . The plaintiff is trying to occupy the defendants property which is gifted to the defendants authority. Hence prayed this court to dismiss the suit.

10 18 ) Basing on the above said pleadings, the following issues have been settled by this court for the purpose of trial:

1) Whether the plaintiff is the owner of the disputed site over B schedule property ABFEA. ?

2) Whether the plaintiff is entitled for declaration and delivery of possession over

the B schedule property i.e., ABFEA ?

3) Whether the plaintiff is entitled for mandatory injunction directing the defendants to remove un-authorised constrictions in B schedule property i.e., ABFEA ?

4) Whether the plaintiff is entitled for permanent injunction ?

To what relief ?

19) To ensure the plaintiffs' claim, one G Nagesh Babu power attorney Holder of the plaintiffs as PW1, Ex A1 to A7 got it marked through him and on behalf of the defendants one

KV Krishna Rao, Town Planning Officer examined as DW1 no documents has been marked on his behalf.

20) Admittedly the suit schedule A and B Schedule properties and other properties are originally owned and possessed one Ande Ramaiah . It is also an admitted fact that

Ande Ramaiah executed a gift settlement deed in favour of defendant municipality under a registered Document NO 3044 of 1990 dated 31.10.1990 to an extent of Ac 2.00 cents of land for the purpose of laying road , school and park etc. It was an admitted fact that PW1 Nagesh Babu is a GPA holder executed by plaintiff Gajjala Ravindra Reddy in favour of the

PW1.

21) It is the claim of the plaintiff in the suit is that he purchased the plaint schedule property under Ex A1 11

dated 07.02.2008 executed by one Anegundhe Suryanarayana

Raju in his favour to an extent of 37.5 x 45 in SY No 136-3B/1 ( vacant site) for a valid consideration of RS. 563000/- . The above said Ande family has allowed the defendants authority to hold and to keep and improve the public roads vacant site meant for public purpose such as municipal park, school etc., settling upon the said authority by way of gift in the year 1990. The plaintiff is the rightful owner of the A schedule property covered under ABFCDEA as shown in the rough sketch annexed to the plaint. It is the self acquired property of

Anegundhe Suryanarayana Raju by way of purchase subsequent rightful owner Smt Kolepalli Lakshmikanthamma and Srikakulam Padmavathi. In view of his purchase under the sale deed 16.12.2001 for valid and proper consideration under

EX A2. A schedule mentioned property was not conveyed by his vendor on the even date of sale as such he has been continuing his possession ever since the date of his acquire as a rightful owner. The defendant municipal authority being the eastern side owner of him in respect of piece of land which was set apart in the layout map by the original owner meant for public purpose for common use was very much contemplating to put up fencing in course of effecting developments in the town in usual course out of utilizing the sanctioned sum by the government. It appears and seems that the defendant authority was very much intending to make encroachments without fix up the boundary line into the plaint

A schedule mentioned properties without confining and restricting to the land settled upon it. Resulting can clear invasion over the legitimate civil rights of him over his exclusive plaint A schedule property to the loss and 12 determined which the defendant authorities are expected to do so. However and whatever absolutely he had no objection for such contemplated developments restricting the land so settled by the original owner a donor without making in roads into the vacant site of him among others. Hence caused legal notice to the defendants under EX A5 and the same was acknowledged by the defendants under Ex A6 hence prayed this court to decree the suit.

22) On the other hand the defendants filed written statements in twice assailing the averments made mentioned in the plaint and admitting the execution of the gift settlement deed of the year 1990 in the favour of the defendant municipality and also existence of the compound wall and other physical features which are laid on the ground and contending that one Ande Ramaiah gifted a suit schedule property an extent of Ac 2.00 cents in SY No 136.3B/1 meant for the public for that purpose obtained approved plan for construction of the school, park and that the defendant never encroached into the site of the plaintiff as alleged by him and prayed this court to dismiss the suit.

23) ISSUE NOS. 1 AND 2:

1. Whether the plaintiff is the owner of the

disputed site over B schedule property ABFEA. ?

2. Whether the plaintiff is entitled for declaration

and delivery of possession over the B schedule

property i.e., ABFEA ?

Issue Nos. 1 to 3 are together answered as the three Issues are interlinked to each.

Originally the suit schedule property is vested with one Ande Ramaiah and he himself gifted an extent 13 of Ac 2.00 cents of land comprised with Survey No. 136.3B/1 admittedly there is no specific boundaries made mentioned in the gift settlement deed. But on the eastern of the plaintiff side the defendant municipality encroached into the plaintiff site for it which it was pleaded by the GPA holder as PW1 G

Nagesh Babu. It is the advanced arguments of the counsel of plaintiff that the defendant municipality encroached into the plaintiff site and constructed the compound wall and declare the right title of the plaint A and B schedule property. On the other hand the counsel for the defendant has been advanced his arguments the defendant have never encroached into the plaintiff side and the plaintiff has no right to question the same.

24) Once the property was gifted by one

Ande Ramaiah to the defendant municipality again that property was claimed by the plaintiff as purchased is absolutely is nothing but misleading the court. As the person who gifted the property to the defendant municipality is nothing to do with the same as he has no right title to claim the same property once again without cancellation of the said regd. Document of the year 1990.

25) On behalf of the plaintiff he got appointed an advocate commissioner to note down the physical features and got measured the suit with the assistance of the mandal surveyor in IA 311/2011. He filed the report after executing the warrant marked Ex C1 and C2 . It is the report of the commissioner and gone through scrutinized the same that the advocate commissioner has not measured the disputed site though the mandal surveyor is available at 14 the time of his visit. Report reveal that it is not possible to measure warrant A and B Schedule property on ground .

Because of the rough sketch and existing plan is in different.

ABFCDEA shown in rough sketch attached to IA 133/2011 is not tallied when it is not possible to measure ABFEA points covered in rough sketch but the court commissioner identified the suit property and tallied the boundaries .

26) The present construction of the municipal park is not according to the measurements shown in approved plan as it is in it compare with the same existing plan and four side measurements of municipal park shown in the existing plan removed with clouds that the present construction of the said park is not going on as per the measurements shown in the approved plan.

27) The schedule properties given in the warrant does not tallied with the physical features on ground and the same suffers from vengeance and he unable to give physical features in it. But the physical features what he saw during his visit on 01.07.2011 are given below without reference to the petition schedule.

28) From east-west there is 46.5 feet of vacant site existing in between constructed foundation of municipal park ( western side in west – north corner of municipal par 50 feet building shown in existing plan shown apart immediate west of 46.5 feet of vacant site. There are standing iron rods tied with binding wire to make concrete pillars on western side foundation of the municipal park from north to south ion west to north corner which are five in number. D No 27-57/18/3 that the same is filed by him on the 15 northern side wall of the house written in white color just opposite to 50 feet building shown in the existing plan situated towards the southern side of cement road leading from weest to east upto present constructed foundation of municipal park.

29) On gone though and scrutinized the report of the court commissioner it is very made mentioned clear that he unable to measured plaint A and B schedule properties without measuring the plaint A and B schedule properties how this court decided for which extent the defendant encroached into the plaintiff side or which extent the plaintiff encroached onto the defendant side it is absolutely nothing was made mentioned in the commissioners report for purpose of appointment of the court commissioner is no use. On the other hand it has stated that the approved plan and the present is got variations and he has not ascertained which plan is correct one to fix up the boundaries. Even he has not fix up the boundaries to what extent the plaintiff purchased from his vendor and to what extent the defendant municipality gifted from his donor. In such and such circumstances it is not say come to conclusion that the defendant municipality encroached plaintiff site and constructed the compound wall absolutely not road.

30) With regard to ocular evidence the GPA holder G Nagesh Babu examined as PW1 marked Ex A1 to A7 , he stated that he know the defendant municipality acquired Ac 0.32 cents of land and the plan was approved. But there is no documentary or ocular evidence of either of the parties with regard to the approved plan to an extent of Ac.0.32 cents. On 16 behalf of the defendants Municipality, absolutely not filed any record. But DW1 has stated that compound wall is in existence long back prior to his assuming charge. According to his evidence the person who gifted the site to the defendants

Municipality is sold the same land to the plaintiff and the land gifted to the Municipality and the plaintiff are one and the same.

31) It was already stated supra in the above, once the land was gifted to the defendants Municipality, Donor has no right to take back the same without seeks the relief of cancellation of the Gift settlement deed under Court of Law. In fact the Court Commissioner visited the suit property and measured the same with the assistance of the Mandal

Surveyor, but the court Commissioner filed his report which reveals that it is unable to measure the site on the ground either 'A' schedule or 'B' schedule. So, it goes to show that it is nothing but misleading the Court for arrival of the right conclusion.

32) It was already stated supra that the site shown on the ground and sketch furnished by the Surveyor is not tallied so also the approved plan and the sketch is also having variations with regard to the physical features and structures on the ground. The very appointment of the Court

Commissioner is no use and not useful for the plaintiff or the defendants. On the other hand, after filing of the report by the

Court Commissioner either the plaintiff or the defendant has not filed any objections to the report of the Commissioner.

Hence in view of the above lacuna, this court is unable to come to conclusion that the defendant Municipality 17 encroached into the plaintiff's site or the plaintiff himself encroached into the site of the defendants Municipality. Hence the Issue Nos. 1 and 2 are answered accordingly.

33) ISSUE NO.3:

Whether the plaintiff is entitled for mandatory

injunction directing the defendants to remove un-

authorized constrictions in B schedule property i.e.,

ABFEA ?

The plaintiff seeks the relief of demolition of ABFEA points by way of Mandatory injunction measuring 45 x 23. In these measurements the plaintiff has not proved these points are encroached by the defendants Municipality. Obviously, the

Court Commissioner visited the suit locality along with the

Mandal Surveyor but failed to measure it to identify the particular disputed points which are ABFEA points which is shown in Red washed in the plaint sketch. It is unfortunate thing that the Court Commissioner has stated in his report that he unable to measured ABFEA points covered in rough sketch in 'B' schedule property because of as per the plan of the

Mandal Surveyor and the approved plan and existing plan both are not tallied. So plaint ABFEA points are in part of 'ABCDEF'.

So both the points are not measured or tallied on the ground.

It is a suit for mandatory injunction, the plaintiff what he claims is very very specific and clear to declare his right, title over the said property. But the plaintiff is not made it clear in any aspect except filing of the sale deed Ex.A1 and nothing was proved with corroborate ocular evidence and other cogent evidence.

34) There was a specific measurements in

Ex.A1 that is 37.5 East to West and 45 north to south 18 comprised in S.No.136-3B/1 that was not measured by the

Court Commissioner with the assistance of the Mandal surveyor. Though DW1 stated in his evidence that the Mandal

Surveyor measured the land in his presence. But nothing was made mentioned in the report of the Court Commissioner. On the other hand the Court Commissioner has revealed in his report that he was unable to measure the disputed site i.e.,

ABFEA points under the part of ABCDA points. In those circumstances it is not safe to come to conclusion that without having any authenticative record to declare the mandatory relief of the plaintiff.

35. Hence in view of the above discussion in the above said paragraphs, this court concludes that this court is unable to assess for declaring the mandatory relief by way of removal of the structures. Absolutely, there is no ocular and documentary evidence of the plaintiff or the defendant. Hence this Issue is answered accordingly.

36) ISSUE NO.4: Whether the plaintiff is entitled for permanent injunction ?

The plaintiff filed Ex.A1 sale deed and legal notice

Ex.A5 and acknowledgment Ex.A6 are the evidence of the plaintiff to prove his possession and title. It is the fact that title follows possession. But absolutely there is no ocular and documentary evidence that the plaintiff was in possession and enjoyment of the disputed 'A' and 'B' schedule properties. It is a well settled Law that if a person filed a suit for the equitable relief of bare injunction, he must show the possession or title over the said property, he cannot depend upon the weakness of the defendants' plea. In this regard, except filing Ex.A1 19 registered sale deed, nothing was shown to prove the possession of the plaintiff. On the other hand, the report of the

Court Commissioner adversely affected to the suit claim.

37) On the other hand, the plaintiff filed

Ex.A3 special notice dated 02.04.2004 No. 3-68 Murigimatam veedhi bearing D.No.30-170 and Ex.A7 is the photograph and

C.D. Ex.A4 is the tax receipts four in number paid on one day.

The first receipt shown Rs.10/- was paid, the second receipt shown Rs.765/- was paid, the third receipt shows Rs.1727/- was paid and fourth receipt shows Rs.500/- was paid in the name of Suryanarayana Raju who is vendor of the plaintiff. But the plaintiff claim the vacant possession for the equitable relief of bare injunction. The plaintiff has not claimed the equitable relief of bare injunction to the house door No.30-170, so Ex.A3, A4 and A7 are no way helpful to the plaintiff's claim.

Ex.A6 is the legal notice issued to the Defendants Municipality claiming the relief under 'A' and 'B' schedule property but the defendant has acknowledged the same nor issued any reply.

The explanation offered to the defendant, stated that as they are not encroached into the site of the plaintiff. Hence the defendant has not issued any reply. Whatsoever the plaintiff is not able to establish the equitable relief of bare injunction as he failed to prove that he is in possession and enjoyment of the disputed property. Hence this issue is also answered against the plaintiff.

38) ISSUE NO.4: To what relief ?

In the result, the suit is dismissed, without costs.

20

Typed to my dictation directly on computer by the Personal Assistant of this Court. Corrected, signed and

pronounced by me in the open court this the 25th day of

October, 2017.

SENIOR CIVIL JUDGE,

PUNGANUR

APPENDIX OF EVIDENCE

Witnesses Examined for:

Plaintiff: PW-1 G. Nagesh Babu.

Defendant: DW-1:K.V. Krishna Rao.

Exhibits marked on behalf of:

Plaintiff:

Ex.A1: Original General Power of Attorney deed dated 08.04.2013, Ex.A2: Registered sale deed dated 07.02.2008, Ex.A3: Special notice dated 02.04.2004, Ex.A4: Triplicate challans ( four in number), Ex.A5: Legal precautionary notice dated 26.05.2010, Ex.A6: Postal acknowledgment, Ex.A7: Photo snaps ( five in number).

Defendant:

NIL. S.C.J.

PGR.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT

PUNGANUR

Present:Kum P. Radhamma, M.A.,M.L.,

Senior Civil Judge, Punganur.

Thursday the Twenty-Sixth (26th) day of October,

TWO THOUSAND AND SEVENTEEN.

O.S. No. 15 of 2011

Smt. M.P. Rajamma wife of late M.P.Gopalan, aged about 75 years, Hindu, House wife, residing at D.No.4-922, Kajuru Road, opposite to Greamspet post Office, Greamspet, Chittoor town.

.. Plaintiff.

// Versus //

1. G. Kasthuri wife of N.Gopal, aged about 45 years, Hindu, House-wife, Junction O.B. Vuddanuru village and post, Mulbagal Taluk, Kolar district, Karnataka state.

(2). B. Parvathamma (Died) wife of Late Kadiyala Chinna Ramaiah, aged about 85 years, D.No.6-37, By the side of Zilla Parishad High School, Main road, Chowdepalle town, post and mandal, Chittoor district

3. B. Deenadayala Naidu son of Late Kadiyala Chinna Ramaiah, Hindu, aged about 52 years working as Attender in Tahsildar's office, Somala village, post and Mandal, Chittoor district and residing at D.No.28-178/2A, New pet, Punganur town and mandal, Chittoor district,

4.B. Sundara Raja son of K.Chinna Ramaiah, aged about 70 years, Hindu, Retired Teacher (PET), Aragonda village, post, Thavanampalli mandal, Chittoor district.

Defendant No.4 is added as per orders in I.A.No.189/2016

dated 09.11.2016.

.. Defendants.

This suit coming on 23-10-2017 for final hearing

before me in the presence of Sri Y.Bhaskar Reddy,

Advocate for the plaintiff and of Sri B.S. Harsha Vardhan,

Advocate for the defendant Nos. 3 and 4; the first defendant having remained exparte; and the suit against 2nd defendant abated since she died; and upon perusing all the material papers on record and upon hearing both sides and having stood over for consideration till this day, this

Court delivered the following:

2

J U D G M E N T

1)This is a partition suit filed by the plaintiff to pass a preliminary decree for partition of the plaint schedule properties dividing into two equal shares by taking into consideration of good and bad soil and to allot one such share to the plaintiff by metes and bounds and direct the first defendant to put the plaintiff in separate possession of one such share; for costs of the suit.

2)It is averred in the plaint that the plaintiff, mother of the first defendant Lalithamma and the second defendant

Parvathamma are the sisters and are daughters of one

Ballapuram Narasamma. During the life time of the said

Narasamma, the said Narasamma and her three daughters i.e., plaintiff, mother of the first defendant Lalithamma and the second defendant Parvathamma were divided under a registered partition deed under Ex.A1 dated 29.09.1950 of their joint family properties. In that partition 'B' schedule properties fell to the share of Narasamma, plaintiff and to the mother of the 1st defendant. 'A' schedule property fell to the share of the second defendant. The third defendant is no other than the son of the 2nd defendant. After partition, the plaintiff, mother of the plaintiff and the mother of the 1st defendant enjoyed the suit schedule property and the 2nd defendant enjoying the 'A' schedule property.

3)The plaintiff further submits that about 30 years ago the mother of the plaintiff died intestate and on her demise, both the plaintiff and the mother of the 1st defendant succeeded to the share of the said B.Narasamma in the suit schedule property and they continued to be in possession of 3 the same as usual as previously while being so the mother of the 1st defendant Lalithamma died about six years ago intestate leaving her only daughter i.e., the 1st defendant to succeed to all her estates. So, the plaintiff and the 1st defendant has got half share each in the suit schedule property. In the month of November, 2010 the plaintiff came to know that the defendants 2 and 3 are contemplating to being into existence of certain documents in collusion with one

B.Harinath who is working as Teacher, M.P.P. Elementary school, Gandlapalli village, Chowdepalli mandal, Chittoor district, pertaining to the suit schedule property. That the defendants 2 and 3 have no right, title and possession on the suit property on bringing into existence of any such documents in collusion in between 2 and 3 defendants or any third parties, are not binding on the plaintiff or on the 1st defendant and such attempts of 2nd and 3rd defendants are illegal. That the plaintiff re-intestate and states that Nos. 2 and 3 defendants have no right to execute any such documents with respect to the schedule property in favour of the said

B.Harinath or any third party and even if any such documents are in existence are not binding on the plaintiff. So, the plaintiff got issued a legal notice to the defendants 2 and 3 and to the said B.Harinath on 11.11.2010. The first defendant is not coming forward for amicable partition of the suit schedule property to save them from defendants 2 and 3.

4)It is further stated by the plaintiff that the plaintiff thought that it is no longer safe to keep the suit schedule property jointly. It is also very difficult for the plaintiff to avail loan with any Banks by hypothecation of her half share in the suit schedule property as there is no document to show the 4 partition in between the plaintiff and 1st defendant. Hence the suit.

5)On the other hand, the defendants 3 and 4 filed written statement assailing the averments made mentioned in the plaint. The defendants 3 and 4 further contended that the mother Smt. Narasamma might have passed away about 30 years ago intestate but on her demise both the plaintiff and

Smt. Lalithamma, the late mother of the first defendant did not succeed to the suit schedule properties to brand them selves as absolute owners thereof in equal moieties as alleged. Moreover they were never in possession and enjoyment of them as exclusive owners thereof.

6)The defendants further contended that Smt.

Lalithamma, the mother of the first defendant who died testate on 11.11.2002 bequeathing her properties which includes the suit schedule properties among another item comprised in Sircar Dry S.No.411/6 having an extent of

Ac.0.78 cents wherein her 1/3rd joint share in the name of the third defendant by executing her last and final registered will

dated 02.03.1990 as D.No.24 of book 3 on the file of Sub –

Registrar, Punganur with an intention to avoid complication about the devolution of her properties in future, in a sound and disposing state of mind which came into effect immediately after her demise as the same was not either revoked or cancelled by her during her life time. She has categorically mentioned in the said will about the celebration of marriage of her only daughter Smt. Kasthuri, the first defendant herein and her happy living with her husband at her matrimonial home and in the circumstances she had reached to the shelter of the third defendant who looked after her well 5 being at the fag end of her old age providing with all the amendments such as food, clothing, medical aid and ultimately performed obsequies as desired and cherished by her.

7)The defendants further contended that on 05.07.1965 the mother Smt. Ballapuram Narasamma got settled her 1/3rd share in the entire landed properties in the name of the second defendant out of love and affection she had towards her without receiving any sort of consideration whatsoever quite considering her valuable past services about a decade and expecting similar services in future also by executing a Gift Settlement deed as D.No.2154/1965 and put her in physical possession and enjoyment of them on the even date of gift settlement. However no document was reduced into writing in between the mother Smt. Narasamma and the second defendant Smt. Parvathamma with regard to the suit schedule house property comprised in item No.1 but she continued her possession with enjoyment even during the life time of her mother as well as after her demise remitting the necessary tax due to the Chowdepalle Grama Panchayath authorities. In such circumstances neither the plaintiff nor

Smt. Lalithamma never claimed the total properties comprised in the 'B' schedule of their partition deed dated 26.09.1950 in equal moieties after the demise of the mother and exercised their rights to the extent of 1/3rd joint share only as evidenced by several transactions which are sure index to their full knowledge.

8)The defendants further submits that the plaintiff has purposefully suppressed all the facts knowing pretty well full well for the reasons best known to herself. As a matter of 6 fact, the plaintiff never questioned these defendants 2 and 3 in their personal dealings at any time raising her little finger even. Perhaps the plaintiff wants to have unlawful gain by dictating terms to these defendants 2 and 3 without any manner of right whatsoever in the suit schedule properties and on such score only the plaintiff appears to have stopped down to issue the registered notice dated 11.11.2010. The particulars of the suit schedule properties such as measurements etc., are also not correctly furnished by the plaintiff. Viewed in any angle the suit is devoid of merits as the same is purposely designed with concoction of things to suit her peculiar version and attitude. More over no correlation statement to the suit new survey numbers from that of old paimaish numbers as found in the registered partition deed

dated 29.09.1950 has been filed to substantiate and establish

with proper identity that the suit properties pertains to the 'B' schedule of the said partition, so also enlightening the court properly as required to the just decision of the case.

9)The defendants further submits that the plaintiff or the first defendant have no subsisting right or interest whatsoever in the suit properties to any extent or any longer.

Further there is no need or dire necessity to file a suit for partition and separate possession as being contended by the plaintiff. The version of the plaintiff that the first defendant is not coming forward for amicable partition of the suit schedule properties even without making copy of the registered notice or demanding her even orally for the said purpose cannot be believed. The plaintiff's contention to save the suit properties from these defendants 2 and 3 is nothing but to grab over them to their loss and detriment. The plaintiff kept quite all 7 these years just sleeping over her rights if any and she has put forth her frivolous claim falsely. The plaintiff is not in joint possession along with these defendants 2 and 3 with any of the suit properties. The plaintiff has been acting under the influence of certain people having vast experience in the sphere of courts for decades together. Hence the plaintiff is not entitled to the relief of partition without seeking declaration of her alleged right and title. The suit is bad for non-joinder of necessary parties namely the other alienees in respect of the landed properties from the plaintiff. Hence prayed this court to dismiss the suit, with costs.

10)Basing on the above said pleadings, the following issues have been settled by this court for the purpose of trial:

1) Whether the plaintiff is entitled for partition as prayed for ?

2) To what relief ?

11) To ensure the plaintiff's claim, Smt. M.P. Rajamma examined as PW-1 and B.Dasappa Reddy who is the third party examined as PW-2 and got marked Exs.A1 and A2 on behalf of the plaintiff. On behalf of the defendants,

B.Deendayal Naidu who is third defendant examined as DW-1, 4th defendant Sundara Raja examined as DW-2, one

Munirathnam who is third party examined as DW-3, Ex.B1 to

B10 are marked through DW1.

12) Heard both sides.

13) Admittedly the suit schedule properties are the properties of Narasamma who is the mother of plaintiff

Rajamma and the mother of first defendant Lalithamma and the second defendant Padmavathamma. It is also an admitted fact that Narasamma and her three daughters were got 8 partitioned to their properties under Ex.A1 in the year 29.09.1950. It is also an admitted fact that after filing of the suit, the second defendant Parvathamma died and the 4th defendant was impleaded as a testamentary successor in the present suit as per orders in I.A.No.189/2016 dated 09.11.2016

14) ISSUE NO.1: Whether the plaintiff is entitled for partition as prayed for ?

It is the claim of the plaintiff in the suit is that she is the daughter of Narasamma. She herself and her sisters

Lalithamma and Parvathamma are the issues of Ballapuram

Narasamma and they were got partitioned the properties under a registered partition deed under Ex.A1 dated 19.11.2016 of their joint family properties. In that partition 'B' schedule properties was fell to the share of her mother

Narasamma and she herself and the mother of the first defendant. 'A' schedule fell to the share of second defendant.

Subsequent to the partition they are enjoying the same with their respective shares. About 30 years ago her mother

Narasamma died. After the demise of her mother, the plaintiff

Rajamma and the first defendant Lalithamma succeeded to the share of Narasamma to the suit property and they continued to be the same. The said Lalithamma mother of the first defendant died about six years ago intestate leaving her only daughter first defendant to succeed to her estate and both of them are got half share each in the suit schedule properties.

15) In the month of November, 2010 she came to know that the defendants 2 and 3 are contemplating to in 9 existence of certain documents in collusion with one

B.Harinath who is working as a Teacher, M.P.P Elementary school, Gandlapalle pertaining to the suit properties. The plaintiff got issued legal notice Ex.A2 to defendants 2 and 3 and one B.Harinath claiming half share over the suit properties and they send the reply. Thus the defendants 2 and 3 have no right, title and possession of the schedule properties and that prayed this court to declare her half share over the suit schedule properties.

16) On the other hand, the 2nd defendant filed written statement, the first defendant remained exparte and the 4th defendant added who is testamentary successor, assailing the averments made mentioned in the plaint, admitting the relationship in between both the parties and existence of Ex.A1 registered partition deed and issuance of the legal notice and admitting the 'B' schedule property was fell to the share of the plaintiff Rajamma and the mother of the first defendant Lalithamma and 'A' schedule property fell to the share of Parvathamma and contended that the plaintiff is nothing to do with the suit property as she has sold away the item No.1 of the suit property to one Tamada Ramaiah under a registered sale deed and that she has no right to go against the defendant claim half share in the suit property and further contended that the existence of registered will under Ex.B3 and B4 in favour of 3rd and 4th defendants by Lalithamma and

Parvathamma and execution of the registered Gift settlement deed under Ex.B1 in favour of the second defendant by

Narasamma in respect of item Nos. 2 and 3 of the suit properties. Hence prayed this court to dismiss the suit.

10

17) Admittedly on gone through the copy of the registered partition deed under Ex.A1 dated 29.09.1950. There is no dispute with regard to the allotment of the 'A' and 'B' schedule properties to the Narasamma and her three daughters. 'A' schedule property was fell to the share of

Parvathamma and 'B' schedule property was fell to the share of Narasamma and her two daughters who are plaintiff

Rajamma and Lalithamma who is the mother of the first defendant. In this Ex.A1 partition deed the old paimaish numbers are made mentioned as it is the document of the year 1950, she has not filed any document for correlation paimaish numbers with the suit survey numbers. Though there was a specific boundaries mentioned in the partition deed but there is no survey numbers and specific paimaish numbers are made mentioned to correlate the suit survey numbers.

18) It is the advanced arguments of the plaintiff's counsel that PW1 Rajamma has already sold her share to one

Tamada Ramaiah under a registered sale deed in the year 1965, it was also admitted by her in her evidence that she sold one ankanam of the house to the above said Tamada Ramaiah on 26.05.1965. Inturn the said Tamada Ramaiah sold 1/3rd in joint share to the second defendant Parvathamma on 05.07.1965 under Ex.B2. The recitals under Ex.B2 is very made it mentioned clear that the vendor Tamada Ramaiah purchased the said property from the plaintiff Rajamma in the year 1965 and the same was sold to the second defendant

Parvathamma. How plaintiff Rajamma again claim the half share in the house property as already he sold to Tamada

Ramaiah in the year 1965. So, the plaintiff filed the suit by 11 suppressing the real facts though she claim half share from the suit schedule properties against the first defendant only.

The first defendant Kasthuri is the daughter of co-sharer who is her mother Lalithamma in the 'B' schedule property of

Ex.A1.

19) Admittedly the plaintiff Rajamma claims half share against the first defendant alone but not the defendants 2 to 4. But for what purpose she filed the suit against the 2nd and 3rd defendants who is the mother and son. The 4th defendant was added subsequently as a testamentary successor. Moreover the plaintiff send a legal notice under

Ex.A2 to Defendants 2 and 3 and one B.Harinath, Teacher who is not a party to the suit but not send a legal notice to the first defendant itself. The plaintiff claims half share against the first defendant only, she has to issue notice to the first defendant claimed her half share over the plaint 'B' schedule property under Ex.A1 partition deed only. But the extents or the survey numbers of the 'B' schedule property were not made mentioned in Ex.A1 partition deed under 'B' schedule.

20) In such and such circumstances, how the plaintiff claims half share out of the seven items of the plaint schedule properties. It is the claim of the plaintiffs that she has half share from the suit schedule properties against the first defendant Kasthuri. Admittedly the mother of Kasthuri by name Lalithamma had executed a registered Will bequeathing her properties in favour of Deenadayal who is D3 under Ex.B4 dated 02.03.1990. The suit is filed in the year 2011. From the year 1990 till the filing of the suit nothing was resisted against the will under Ex.B3 but it is the claim of the 12 plaintiff that the said Lalithamma allotted 'B' schedule property along with her mother Narasamma and herself. So, she claims half share against the property of Lalithamma but not first defendant Kasthuri. Though Lalithamma bequeathed her property in favour of third defendant in the year 1990 itself. Absolutely there is no property to the first defendant for partition of half share allotted in favour of the plaintiff. As the first defendant already remained exparte. Hence the claim of the plaintiff is absolutely wrong and nothing was there for partition against the first defendant. Originally the plaintiff clams an half share against the first defendant only according to the plaint pleadings. But how she added D2 to D4 in the suit.

21) Ex.B4 is the registered Will executed by second defendant Parvathamma in favour of the defendant

No.4 who is her elder son dated 02.03.1990, bequeathed all the properties by way of acquiring sale and registered Gift settlement deed and partition i.e., Ex.A1, Ex.B1 and B2. Ex.A1 is a registered partition deed, Ex.B2 is the registered sale deed executed by Tavada Ramaiah in favour of Parvathamma second defendant on 05.07.1965 for the share of the plaintiff and Ex.B1 is the Gift settlement deed executed by Sarasamma in favour of the second defendant Parvathamma in respect of

S.Nos.410/7 Ac.1.20 cents, 411/6 Ac.0.78 cents, 399/3 Ac.2.55 cents, 400/7 Ac.0.54 cents altogether 1/3rd in joint share. In the above said documents, the second defendant

Parvathamma has given the said property to her elder son

Sundara Raja under a registered will of the year 1990. So, from the year 1990 till the filing of the suit, either the plaintiff 13 or the first defendant or any other have not questioned about the existence of the registered documents which are referred above as Ex.A1, Exs.B1 to B4.

22) In view of the above foregoing discussion, the defendants 3 and 4 are having absolute rights over the properties which are made mentioned in registered documents and to prove the same they filed R.O.R, 1-B namuna, pattadar adangal under Ex.B9 and B10. In those documents which reveals that the names of Parvathamma and Deenadayal i.e., 3rd defendant were mutated in the revenue records. The plaintiff has not claim the properties of the second defendant

Parvathamma. She claim only half share of the first defendant

Kasthuri. As per the contents of the legal notice under Ex.A2 and reply notice under Ex.B5 only the item No.1 was made mentioned and mentioning of the partition deed itself. The said reply notice was also acknowledged by the plaintiff under

Ex.B6. There is no re-joinder subsequent to Ex.B6.

23) It is the evidence of D.Ws. 1 to 3 to strengthen the claim of DW1 and DW2 who are D3 and D4. The third defendant examined as DW1. Nothing was adversed against their plea and nothing was elicited against his plea. DW3 is the third party who cultivating the lands on lease to the defendants 3 and 4. Except that nothing was elicited adversely against the claim of defendants 3 and 4. On the other hand, plaintiff Rajamma has made admissions with regard to her selling the property to one Tavada Ramaiah in the year 1965, inturn that property was sold by Tavada

Ramaiah to the second defendant, admitting the conducting funerals of her mother and her sister Lalithamma by third 14 defendant and his brothers. She does not know the survey numbers, boundaries and its extents and admitting the possession of the third defendant of the share of Lalithamma conveyed under the Will Ex.B3. She has admitted that the property given to second defendant Parvathamma by her mother Narasamma has been enjoyed during her life time. So, what enough to falsify the contention of the plaintiffs against the pleadings and her evidence.

25) In view of the above foregoing discussion, viewed in any angle the plaintiff has not able to establish her share out of the suit schedule properties by virtue of the plaint pleadings and her evidence and documents Exs.A1 and A2 i.e., registered partition deed and office copy of legal notice against the share of the first defendant. Hence this Court inclined that the plaintiff is not entitled to claim half share out of the total plaint schedule properties as she has already sold away her 1/3rd share to one Tavada Ramaiah in respect of item No.1 of the suit property on 26.05.1965. The above said

Tavada Ramaiah inturn the above said property in favour of the second defendant Parvathamma under a registered sale deed dated 05.07.1965. Item Nos. 2 and 3 were already gifted by Narasamma in favour of the second defendant under a Gift settlement deed dated 05.07.1965. The Narasamma's 1/3rd share was settled in favour of her elder daughter

Parvathamma who is the second defendant. So, the said

Parvathamma had her 1/3rd share plus her mother's 1/3rd share = she had 1/6th share out of the suit properties. So, the plaintiff is nothing to do with the suit property to claim against any properties to defendants 2 to 4. As it is already stated 15 supra that the mother of first defendant Lalithamma had bequeathed her share in favour of Deenadayal i.e., 3rd defendant under Ex.B3 by way of registered will dated 02.03.1990. Hence the first defendant has no property in the suit schedule properties to claim half share by the plaintiff.

Hence the suit is liable to be dismissed. This issue is answered accordingly.

26) Issue No.2 : To what relief ?

In the result, the suit is dismissed, without costs.

Typed to my dictation on computer corrected, signed and pronounced by me in the open court this the 26th day of October, 2017.

SENIOR CIVIL JUDGE,

PUNGANUR

APPENDIX OF EVIDENCE

Witnesses examined on behalf of:

Plaintiffs:

PW- 1: M.P. Rajamma,

PW-2: D. Dasappa Reddy.

Defendants:

DW-1: B. Deenadayal Naidu,

DW-2:B. Sundara Raja,

DW-3: M. Munirathnam.

Documents marked on behalf of:

Plaintiffs:

Ex.A1: Copy of Registered partition deed dated 29.09.1950,

Ex.A2: Office copy of legal notice dated 11.11.2010.

Defendants:

Ex.B1: Original registered Gift settlement deed executed by

B.Narasamma in favour of 2nd defendant dated 05.07.1965,

Ex.B2: Original registered sale deed executed by mother of D1

Lalithamma in favour of D3 dated 05.07.1965, 16

Ex.B3: Original Will dated 02.03.1990 executed by the mother of

D1 Lalithamma in favour of D3,

Ex.B4: Original registered will dated 02.03.1990 executed by

B.Parvathamma,

Ex.B5: Office copy of reply notice dated 12.12.2010,

Ex.B6:Postal acknowledgment,

Ex.B7: Certificate of Encumbrance dated 10.08.2017,

Ex.B8: Certificate of Encumbrance certificate dated 10.08.2017,

Ex.B9:1-B namuna,

Ex.B10: Pattadar adangal/pahani.

S.C.J. PGR.

DRAFT JUDGMENT in

O.S.No.15 of 2011

Dt.26-10-2017

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT PUNGANUR

Present:Kum. P.Radhamma, M.A., M.L.,

Senior Civil Judge, Punganur.

Friday, the Twentieth (20th) day of October,

TWO THOUSAND AND SEVENTEEN.

O.S. No. 15 of 2010

Sri. Pagadala Muni Venkatappa son of Venkatramaiah, aged about 45 years, Hindu, cultivation, residing at High School street, Chowdepalli, Chowdepalli mandal, Chittoor district. .. Plaintiff. // Versus //

1) Sri Kunchi Sreenivasulu son of Ramaiah, aged about 55 years, Hindu, cultivation, residing at Koturu, h/o Kondamarri, Chowdepalli mandal, Chittoor district,

2) Smt. Kunchi Gayathri wife of Udaya Narasimhulu, aged about 29 years, Hindu, private Employee, residing at Thatimakulapalyam, Punganur town and mandal, Chittoor district .

Second defendant added as per orders in I.A.No.137 of

2017 dated 25.04.2017.

.. Defendants.

This suit coming on 17-10-2017 for final hearing

before me in the presence of Sri.G.Shivasankar Naidu, Advocate

for the plaintiff and Sri. Y. Bhaskar Reddy, Advocate for the first defendant, and of Sri B.Venkatamuni, Advocate for the second defendant; and upon perusing all the material papers on record and upon hearing the arguments on both sides and having stood over for consideration, this Court delivered the following:

J U D G M E N T

1) This is a suit filed by the plaintiff for bare injunction restraining the defendants, their men, and agents from in any way interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property and for costs of the suit.

2) The brief facts of the plaint in nutshell is as follows:- The suit schedule property originally belonged to the 2 ancestors of the first defendant. He was in peaceful possession and enjoyment of the same. On 19.10.2006 the plaintiff purchased the suit schedule land with specific boundaries for valid and proper consideration from its lawful owner, the defendant under document No.3388/2006. Since then the plaintiff is in peaceful possession and enjoyment of the same.

The name of the plaintiff also mutated in the revenue records.

The plaintiff also constructed a poultry shed in the suit schedule property under the name and style of ‘Swathi Poultry Form’ and leased the same for three years and supplied the birds to Suguna

Poultry Form Ltd., with their financial assistance. Due to ups and down in the poultry business the plaintiff stopped the same for two batches. Now the poultry shed is vacant and not in use. For proof of construction of the shed, the Panchayath Secretary,

Pedda Kondamarri also issued a certificate. The plaintiff perfected his right, title and possession over the suit schedule property and he is in uninterrupted peaceful possession and enjoyment of the same.

(a) The defendant without any right, title and possession and the suit schedule property since a week is giving out in the village that he will trespass into the suit property and will dispossess the plaintiff even by force and political power. The defendant has no right to do so. The defendant who is having support of unruly elements and political people may put his words into action at any time and the plaintiff being a poor and having no support may not be in a position to resist the highhanded acts of the defendant. Hence, the suit.

3) On the other hand, the first defendant filed written statement assailing the averments made in the plaint. The brief facts of the written statement of first defendant are that the suit 3 schedule property is the ancestral property of the defendant and he was in possession of the same. First defendant also admitted that the plaintiff purchased an extent of Ac.0.62 ½ from the defendant on 19.10.2006 with specific boundaries. In the sale deed dated 19.10.2006 the southern boundary is the land of

Thunga Sreenivasulu and not Thunga Sreenivasulu Poultry shed as mentioned in the suit schedule. The correct boundary on southern side is the land of Thunga Sreenivasulu, Boorugala

Ramachandraiah and then the Poultry shed of one Suresh @

Seenu. On western side the land of the defendant and the road.

So the boundaries mentioned in the suit schedule are not correct even as per the own document of the plaintiff filed along with the plaint. The defendant also filed rough sketch along with the written statement.

(a) The defendant also admitted that the plaintiff constructed a poultry shed within the land purchased by him on southern side to a length of 250 East-west and width of 25 feet

North-south, shown as ‘MNOP’ in the rough sketch. The plaintiff has left vacant place on North, East and South and the same has been shown as ‘KLMP” and “LHIW” in the rough sketch. The plaintiff has shown falsely as 515 feet on East-west intentionally, purposefully with a malafide intention with a view to knock away the poultry shed of the defendant situated to the West of the poultry shed of the plaintiff which have been shown as “OPQR”, “QRST” and “TSUV” in the suit survey number.

(b) The defendant also contended that there is a well in between the poultry form of the plaintiff, “MNOP” and the poultry form of defendants “OPQR”, “QRST” and “TSUV’’ as shown in the rough sketch filed by the defendant. The water 4 pipelines in the defendants poultry form are in low level and the water pipe-line in plaintiff’s poultry pipeline is on higher level.

The poultry shed “OPQR” as shown in the rough sketch has been constructed by the defendant in the year 2007 including “QRTS” shed. The old poultry form “TSUV” has been constructed by the defendant in the year 1992 itself and running the same even till today. The remaining land in the suit survey number has been cultivating by the defendant and the same is shown as “ABCDEFGKPUVX’. After sell away the land in the suit survey number “KLHIW” to the plaintiff, the defendant did not interfere with the possession and enjoyment of the same, the plaintiff is in possession of the same. The plaintiff filed the suit with a malafide intention to grab the poultry sheds of the defendant in “OPQR”, “QRST” and “TSUV” also without having any right or possession of the same. Hence, prayed this court to dismiss the suit with costs.

4) The second defendant also filed written statement assailing the averments made in the plaint. The brief facts of the written statement of second defendant are that 1st defendant is her father and her sisters namely K.Vemavathi, K.Hyma, K.Kavya and Yamuna all are constituted as Hindu joint family members by virtue of Amendment Act 39 of 2005 in Hindu succession Act, 1956. This defendant and her sisters are coparceners along with the first defendant having 1/6th joint share each in the suit schedule property and other joint family properties. The first defendant became vagabond and addicted to bad vices and he neglected this defendant and her sisters. The first defendant never contributed any amount to the benefit of the joint family.

The mother of this defendant and her sisters, looking after this 5 defendant and her sisters with her parental side assistance and performed the marriages of this defendant, her two sisters and providing education to the other sisters of this defendant.

(a) The second defendant also contended that the first defendant to meet his bad habits and personal necessities, he used to offer to sell the joint family properties in favour of some third parties without knowledge and consent of this defendant and her sisters. The first defendant such continuation of his unlawful attempts colluding with the plaintiff, he created a sale deed in respect of suit schedule property with an intent to defeat and defraud the legitimate claim of this defendant and her sisters in respect of the suit schedule property. The plaintiff is well aware of the above the coparcenership in between this defendant, her sisters and the first defendant in respect of the suit schedule property and other properties of Hindu joint family.

The first defendant has no any exclusive right, title or possession whatsoever in respect of the said property to convey in favour of plaintiff nominally and the plaintiff will not derive any exclusive or valid right in respect of the above said property under a nominal and void document.

(b) The second defendant also contended that she got issued a legal notice dated 20.05.2016 to the first defendant and the plaintiff demanding for partition of the joint family properties, they acknowledged the notices but kept quite without any reply.

The first defendant and the plaintiff is going ahead to alienate the suit schedule property in favour of some third parties.

Further the sisters of this defendant also gained over by this first defendant and they are also kept quite. So, this defendant got filed a civil suit in O.S.No.6 of 2017 on the file of this court 6 against the first defendant, and her sisters and the plaintiff for partition of all the joint family properties including the suit schedule property and the said suit is pending trial. The first defendant has raised the poultry form in the suit schedule property with the joint efforts of this defendant, her sisters out of nucleus of the joint family properties. The plaintiff and the first defendant colluded together got created some revenue records and this certificates in respect of the suit schedule property without knowledge and consent of this defendant and her sisters to defeat and defraud the legitimate shares of this defendant and her sisters. The suit for mere injunction against a co-owner is not maintainable and the plaintiff has to file the suit for partition of the suit schedule property. Hence prayed this court to dismiss the suit.

5) Basing on the averments of the plaint and written statements, the following issues are framed for the purpose of trial.

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

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

3. To what relief?

6) To ensure the plaintiff’s claim, the plaintiff

Pagadala Muni Venkatappa examined himself as PW1, PW-2 and

PW-3 are examined on behalf of the plaintiff and Exs.A1 to A3 got marked. On behalf of the defendants, the first defendant K.

Sreenivasulu got himself examined as DW.1. He also examined 7 one third party witness as DW2 on his behalf. Ex.B1 i.e., the written statement rough sketch is marked on behalf of the first defendant. The second defendant K.Gayathri is examined as DW- 2 and got marked Ex.B2 on her behalf.

7) Heard both sides.

8) Issue No.1 :

Whether the plaintiff is in possession and enjoyment of the plaint schedule property as on date of suit ?

9) Admittedly the suit schedule properties is the ancestral properties of the defendants 1 and 2. It is also an admitted fact that the second defendant by name Gayathri added as per orders in I.A.No.137 of 2017 dated 25.04.2017 as one of the daughter of the first defendant. It is also an admitted fact that she filed a suit in O.S.No.6/2017 for partition of the plaint schedule property before this court and the plaintiff is the 6th defendant in the above said suit. It is also an admitted fact that the first defendant has no objection to decree the suit in respect of the suit schedule property in favour of the plaintiff.

10)It is the claim of the plaintiff P.Munivenkatappa that he is an absolute owner of the plaint schedule property purchased under Ex.A1 dated 19.10.2006, subsequently his name was mutated in the revenue records i.e., 10 (1) and No.2 account, he has been in possession and enjoyment of the same, he constructed a poultry shed in the suit schedule property under the name and style as “Swathi Poultry farm' and leased out the same for three years and supplied the birds to 'Suguna

Poultry farm' ltd., with their financial assistance. Due to ups and downs in the poultry business, he stopped the business for two 8 batches. Now it is a vacant and not in running. He filed Ex.A2 certificate issued by panchayath secretary, Kondamarri that he has been in possession and enjoyment of the plaint schedule property. Hence the plaintiff has perfected his right, title and possession over the suit schedule property and he is in uninterrupted possession and enjoyment of the same. The defendants without having any right, title and possession, he would trespass into the suit property and tried to dispossess him even by force and political power. The defendants have no right to do so. Hence the present suit.

11) On the other hand, the defendants 1 and 2 are filed independent written statements assailing the averments made mentioned in the plaint and the first defendant admitting the sale transactions held between himself and the plaintiff and he has no objection to decree the suit to an extent of the suit property sold under Ex.A1 and filed a sketch appended with the written statement marked Ex.B1 and he has stated in his evidence that he has no objection to decree 'MNOPKL' of the written statement schedule property. On the other hand, the second defendant filed written statement claiming that the suit schedule property is her ancestral property and the plaintiff has no right, title over the suit schedule property and she filed a suit in O.S.No.6/2017 for partition of the suit schedule property and that her father i.e., D1 has no exclusive right to sell away the suit property as it is an ancestral property. Hence prayed this court to dismiss the suit.

12) It is the advanced arguments of the counsel for the 2nd defendant that the first defendant is a vagabond, never look after the welfare of the second defendant, her sisters, his 9 wife and he left the company since long time. He sell away the suit schedule property without the consent and knowledge of the second defendant, her sisters and her mother for his lavishness and the suit may be dismissed. The counsel for the plaintiff advanced his arguments that the plaintiff purchased the suit property under a registered document and he is in possession and enjoyment of the same on the date of Ex.A1 i.e., 19.10.2006.

So the plaintiff is the absolute owner of the suit schedule property.

13) Admittedly court Commissioner was appointed to note down the physical features of the suit property. By that time both the counsels and parties are stated before the court commissioner, the matter is likely wood of the compromise and hence the court commissioner returned the warrant without execution of the warrant and endorsed that as per the advise of both the counsels were likelywood of the compromise dated 27.04.2012. Subsequently the matter was went for several adjournments for likely-wood of the compromise but unfortunately the suit was commenced, one of the daughter as second defendant added and filed a partition suit in

O.S.No.6/2017 against the plaintiff and her other sisters and

father. So, at this stage as this court has no option as it is the well settled principle that the injunction cannot be granted against the co-owner.

14) Even though PW1 P.Munivenkatappa and DW1

K.Sreenivasulu are close friends and there is no dispute with regard to the sale transaction held in between them. But it is the rival contention of the second defendant that her father is a vagabond and left their company and living separately since a 10 long time and her father has no exclusive right, title over the suit schedule property. Admittedly the suit schedule property is an ancestral property, the first defendant family has got so many properties on perusal of the ocular evidence which reveal from their evidence that the first defendant Sreenivasulu and his five daughters sold 3 to 4 acres of land to one Govardhan Reddy and another. But unfortunately the present suit property was sold by the father first defendant alone to the plaintiff. As it is the evidence of the plaintiff Munivenkatappa that the first defendant assured him to obtain the signatures of his daughters and there is no difficulty for that issue. But it is the fact that no one of the daughters not joined as a party in Ex.A1 sale deed or an attesting witnesses.

15) In such and such circumstances the sale under

Ex.A1 is not a valid one as the other coparceners are alive and the suit property is admittedly is an ancestral property. It was admitted by all the witnesses in their evidence. On the other hand, the plea of the first defendant Sreenivasulu that he has no objection to decree the suit to an extent of ac.0.62 ½ cents out of Ac.1.67 cents. Though there is a plea taken by the first defendant, filed a sketch with 'MNOP and KLMP' are the points for decree the suit.

16) It is a well settled principle that an equitable relief of bare injunction can be granted in favour of the person who seeks the relief of bare injunction, he should come to the court with clean hands. But in the present suit as the plaintiff know that the suit schedule property is an ancestral property though he purchased the same from the first defendant 11

Sreenivasulu without the consent and knowledge of the second defendant, her mother and sisters.

17) To prove the possession of the plaintiff he filed

Exs.A2 and A3 which are the certificates issued by Panchayath secretary pertaining in the name of the plaintiff Munivenkatappa and Ex.A3 is the Suguna poultry farm bills which are in the name of Swathi poultry farm for the years 2007. Mere filing of the receipts cannot create any possession over the suit property. On the other hand, the defendants filed Ex.B1 rough sketch and

Ex.B2 copy of 1-B namuna which is in the name of K.Sreenivasulu for S.No.269/1 to an extent of Ac.1.69 cents as 'Anuvamshikamu'. From the date of Ex.A1 i.e., 19.10.2006 till the filing of the suit of the year 2010 the name of the plaintiff has not mutated in the revenue records as he is having a registered sale deed in respect of an half extent of suit schedule property. More over the plaintiff examined two more witnesses who known both the defendant and the plaintiff who stated about the sale transactions between the plaintiff and the defendant. PW-2 who did electric wire work and water pipe line work to the shed and who knows the boundaries of the suit property. PW-3 Venkatramana who supervised the construction work so also electric wiring work and water pipe line work.

18) In view of the above foregoing discussion, the plaintiff has not filed any cultivating account in respect of the suit property though it is an ancestral property of the defendants 1 and 2. Hence it is not proved as an date of filing of the suit, the plaintiff is in possession and enjoyment of the property itself. No cultivating accounts has been filed to prove his title and possession. Moreover an injunction cannot be granted against 12 the co-owner as the first defendant is a co-owner who is vendor of the plaintiff. Hence this Issue is answered accordingly.

19) ISSUE NO.2: Whether the plaintiff is

entitled for permanent injunction as prayed for?

It is already stated supra in the above said paragraphs that the first defendant Sreenivasulu admitted in his pleadings in the written statement and his ocular evidence that he himself executed Ex.A1 in favour of the plaintiff, the boundaries and extents are admitted and he has no objection to decree the suit to that extent only. But whereas the evidence of

Dw3 K.Gayathri who is a newly added party who is the daughter of the first defendant, what she stated that there are five sisters and her last sister is unmarried, she studied Diploma P.E.T and she is the second daughter to her parents. As per her evidence for the last eight years her father never went to their house and she has stated that her father is a vagabond but she has no enmity with her father. The plaintiff and first defendant are jointly constructed a poultry farm according to her version.

20) In all these aspects it is very clear that the first defendant voluntarily sold the suit schedule property to the plaintiff Munivenkatappa, inturn the said Munivenkatappa has know that the suit schedule property is an ancestral property and it is not an exclusive property of the said Sreenivasulu even though he purchased the same under Ex.A1. Obviously

Sreenivasulu has no objection to decree the suit to an extent of

Ac.0.62 ½ cents under Ex.A1 sale deed with boundaries but unfortunately the second defendant is added as a necessary party and took a plea that she and her other sisters are having a 13 right over the suit schedule property and their father has no exclusive right to sell away half extent in the suit schedule property to the plaintiff.

21) Viewed in any angle this court concludes that the suit schedule property is the ancestral properties of the defendants 1 and 2 and the first defendant has no exclusive right to sell away the same to the plaintiff and that injunction cannot be granted against the co-owner. In view of that the suit is liable to be dismissed. This issue is also decided accordingly.

22) Issue No.3 : To what relief ?

In view of the discussion made in Issue Nos. 1 and 2 , the suit is liable to be dismissed.

17) In the result, the suit is dismissed, without costs.

Typed to my dictation on computer by the Stenographer, corrected, signed and pronounced by me in the open court this the 20th day of October, 2017.

SENIOR CIVIL JUDGE,

PUNGANUR.

APPENDIX OF EVIDENCE

Witnesses examined for Plaintiff: Defendants:

PW.1:P. Munivenkatappa,DW.1K. Sreenivasulu, PW.2:K. Muniraja,DW.2 P. Subramanyam, PW.3:K. Venkataramana. DW.3K. Gayathri.

Exhibits marked for: Plaintiff :

Ex.A1: Registered sale deed dated 19.10.2006 executed by the defendant in favour of plaintiff. Ex.A2: Certificate issued by Panchayath Secretary, Ex.A3: The Suguna poultry farm bills.

Defendants:

Ex.B1: Written statement rough sketch, Ex.B2: Copy of 1-B namuna.

S.C.J.

PGR

14

DRAFT JUDGMENT

IN O.S.NO. 15 OF 2010

DT. 20.10.2017.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE AT PUNGANUR

Present:Kum P. Radhamma, M.A., M.L.,

Senior Civil Judge, Punganur.

Thursday, this the Second (2nd) day of November,

TWO THOUSAND AND SEVENTEEN.

O.S. No. 85 of 2014

Sri Managani Mohana Krishna son of late M.Srinivasulu Naidu, Hindu, now residing at D.No.12-134, East Peta street, Punganur town, Chittoor district, A.P. .. Plaintiff. // Versus //

1. Sri P. Nizamuddin aaa 36 years son of P.Shahabuddin, residing at D.No.2-96, Mahaboob Basha street, N.S. Peta, Punganur, Chittoor district,

2. Sri M.K.Ansar Khan, aged about 59 years son of Mahamoodh Khan, D.No.10, 1st cross, Journalist colony, J.C. Road, Bangalore Karnataka State.

..

Defendants.

This suit coming on 27-10-2017 for final hearing before me in the presence of Sri. C.V.Sreenivas, Advocate for the plaintiff and of

Sri. V.Suryanarayana Rao, Advocate for the 2nd defendant; the first defendant having remained exparte; and upon perusing all the material papers on record and upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1) This is a suit for specific performance of contract, directing the first defendant to execute a regular registered sale deed in favour of the plaintiff in pursuance of the sale agreement

dated 26.09.2011 after receiving the balance of sale consideration

amount in respect of the suit schedule property in favour of the plaintiff at the expenses of plaintiff and for costs of the suit.

2

2) The averments of the plaint in nutshell are as follows :

The suit schedule property belongs to the first defendant having purchased the same from his rightful owners by name S.Azumubee,

S.M. Kamal Basha, S.Amath Basha and S.Nissar Basha for valid consideration vide document No.986/2005 under the registered sale deed. The plaintiff submits that the first defendant offered to sell the plaint schedule property to the father of the plaintiff Late

Sreenivasulu Naidu for a sum of Rs.9,00,000/- and the father of the plaintiff accepted the said offer and entered into a contract with the first defendant. In pursuance of the said contract on 26.09.2011 the father of the plaintiff paid a sum of Rs.8,00,000/- to the first defendant towards advance out of the full sale transaction of

Rs.9,00,000/- to purchase the plaint schedule property and executed Ex.A1 sale agreement. It is agreed that the first defendant has to execute a regular registered sale deed in favour of the father of the plaintiff or any person suggested by him at any time whenever demanded by him from 26.09.2011 after receiving the balance of sale consideration of Rs.1,00,000/- in respect of the plaint schedule property in favour of father of the plaintiff.

3)The plaintiff submits that the father of the plaintiff

M.Sreenivasulu Naidu was died recently. The plaintiff become owner of the plaint schedule property. The father of the plaintiff demanded several times to the first defendant to perform his part of contract but the first defendant evading to do so. Now the plaintiff was and is always ready to perform part of his contract by paying balance of sale consideration of Rs.1,00,000/- but the defendant has not willing to perform his part of contract by virtue of Ex.A1 and postponing the same on some pretext or the other.

4)The plaintiff learnt that first defendant was sold the said property along with S.Riyazuddin to the said defendant on 3 08.12.2001 under Ex.B2, the second defendant purchased the said property from the first defendant with the knowledge of Ex.A1 agreement with the father of the plaintiff with the first defendant intentionally to deceive and get wrongful gain from the plaintiff, the first and second defendants colluded together and created the said documents to get wrongful gain and to defeat and defraud the legitimate claim of the plaintiff in respect of the plaint schedule property.

5)The plaintiff got issued a legal notice dated 08.07.2014 under Ex.A2 to the first defendant demanding him to perform the part of the contract and to execute the regular registered sale deed

before the Sub Registrar on 11.07.2014 at 08.10 am., but the

defendant No.1 received the said notice and not send any he purchased the Rs.10/- stamp papers on the same day under Ex.A2 to A4. The plaintiff waited since 10.00 am., till 5.00 pm., before the

Sub Registrar's office, Punganur to have a regular sale deed from the defendant and the balance of sale consideration of

Rs.1,00,000/- but the first defendant did not turn up and failed to perform his part of contract. Hence the present suit. The plaintiff.

6)On the other hand, the second defendant filed written statement, the first defendant remained exparte, assailing the averments made in the plaint and contended that the first defendant has no subsisting interest in the suit property from 02.11.2010. He had subsisting interest only till then and not thereafter. The said property was acquired the same from Azmubi

Kamal Pasha, Amath Basha and S.Nissar Basha. It may be true that the plaintiff's father died recently but this defendant was nothing to do with the death of the plaintiff's father and he has no need to know about the death of plaintiff's father and the plaintiff is not the sole legal heir to his father. The deceased Sreenivasulu Naidu died 4 leaving behind him not only the plaintiff but the another son, a daughter and a wife are their. Without their presence the suit cannot be maintainable. So, the suit is suffers from non joinder of parties.

7)It is averred that prior to his purchase of the suit property, he made detailed enquiry about the suit property such as acquisition of right by Riyazuddin on 02.11.2010 from the first defendant and also the mode of acquisition of the property by the first defendant. It is only after ascertaining the marketable title of

Riyazuddin, this defendant purchased the suit property. It is a strange that the plaintiff being aware of prior registered sale deed pertaining the suit property in favour of Riyazuddin that he has ventured to initiate the suit. The plaintiff has no locus standi to press into service the bogus agreement of sale to claim the relief against second defendant.

8)Basing on the above said pleadings, the following issues have been settled by this court for the purpose of trial:

1. Whether the plaintiff is entitled to have a regular registered sale deed from the defendant No.1 in pursuance of the sale agreement dated 26.09.2011 ?

2. To what relief ?

9) To ensure the plaintiff’s claim, the plaintiff M.Mohana

Krishna examined as PW1. Exs.A1 to A4 were got it marked through him. On behalf of the second defendant, he himself examined as

DW-1 and Exs.B1 and B2 were got it marked on behalf of the defendants.

10)Head both sides.

11)Admittedly Ex.A1 was came into existence between late

Sreenivasulu Naidu and the first defendant Nizamuddin under

Ex.A1. It is also an admitted fact that the first defendant who is 5 responsible person remained exparte. The second defendant who purchased the property from the first defendant, examined as DW-1 and filed his written statement marking Exs.B1 and B2. It is also an admitted fact that late Sreenivasulu Naidu had a wife, daughter and another son along with the plaintiff.

12)ISSUE NO.1: Whether the plaintiff is entitled to

have a regular registered sale deed from the

defendant No.1 in pursuance of the sale agreement

dated 26.09.2011 ?

It is the claim of the plaintiff that his father Sreenivasulu

Naidu entered into an agreement with the first defendant

Nizamuddin and the first defendant offered to sell the suit schedule property and it was agreed by the above said Sreenivasulu Naidu and both of them entered into a contract under Ex.A1 by receiving an amount of Rs.8,00,000/-, the bargaining was settled for

Rs.9,00,000/-. Subsequently his father died and the plaintiff filed the present suit and he send a legal notice to the first defendant demanding him to execute a registered sale deed, neither he send the reply nor approached the plaintiff to settle the dispute. Hence the suit.

13)On the other hand the first defendant remained exparte, the second defendant alone filed independent written statement, admitting the transaction between the late Sreenivasulu Naidu and the first defendant as he has not received any legal notice from the plaintiff or held any transaction with late Sreenivasulu Naidu or the present plaintiff herein and he purchased the suit schedule property from the first defendant and one Riyazuddin under Ex.B2 and he is nothing to do with the transaction. Hence the suit is suffered by non-joinder of parties and the plaintiff has no locus standi to file the suit. Hence prayed to dismiss the suit.

6

14)First of all it has to be discussed whether there is any transaction is in existence between the first defendant and father of the plaintiff Sreenivasulu Naidu. Originally the said transaction held between the first defendant and Sreenivasulu Naidu as the offering sale consideration was paid by Sreenivasulu naidu and received by the first defendant. But unfortunately the said Sreenivasulu naidu died through the contract is held in between the said Sreenivasulu and the first defendant, after the death of the Sreenivasulu naidu, the plaintiff who is his son succeeded the estate of his father.

15)It is the averments of the written statement of second defendant that the late Sreenivasulu Naidu had a wife, another daughter and a son are alive. But the plaintiff alone filed the present suit is suffers with non joinder of parties. It is a fact that the plaintiff as PW1 in his evidence has stated that he is having sister, brother and mother who are alive. If such is the case the suit is not filed on representative capacity or there is no any general power of attorney in favour of the plaintiff on behalf of his mother, brother and sister. But simply he came and filed the suit in an individual capacity. Absolutely there is no pleadings in the plaint that on behalf of his family members, he sue the present suit. So, the admitted facts need not be proved. Hence the suit is suffered with non – joinder of necessary parties.

16)It is the rival contention of the first defendant that he has no subsisting interest in the suit property from 02.11.2010. He had subsisting interest till then not thereafter. If such is the case, how the first defendant entered into the contract with the father of the plaintiff Sreenivasulu Naidu. The first defendant already sold the suit schedule property in favour of one Riyazuddin on 02.11.2010 with the suit property under Ex.B1. Subsequently he 7 entered into an agreement with the above said Sreenivasulu naidu on 26.09.2011, it is nothing but deceived the father of the plaintiff.

So, it is only the obligation of the first defendant even though he has entered into the contract with the father of the plaintiff. If the plaintiff filed the suit in a representative capacity the suit will be decreed against the first defendant only but not the second defendant as the contract held in between late Sreenivasulu Naidu and the first defendant only. But unfortunately the second defendant who purchased the suit property again from the first defendant and one Riyazuddin under Ex.B2. So, there was a three sale transactions were held between the father of the plaintiff, defendants 2 and 3 and one Riyazuddin, is nothing but deceive the father of the plaintiff.

17)It is a fact that the plaintiff issued a legal notice claiming both the defendants to receive the balance of sale consideration of Rs.1,00,000/- and execute the regular registered sale deed and the same was acknowledged by the second defendant but he has not send any reply or took any negotiations to settle the dispute and the plaintiff waited upto 5.00 pm., on the date i.e., on 11.07.2014 for which it was demanded in Ex.A2 by purchasing Rs.10/- N.J. Stamps. But the first defendant has not attend the Sub Registrar's office to perform his part of contract.

Hence the plaintiff is ready and willing to perform his part of contract but the first defendant is failed to perform his part of contract.

18)So, in view of the above foregoing discussion, it was already stated supra in the above that the suit is hit by non – joinder of necessary parties as the other legal heirs of Late Sreenivasulu

Naidu are alive who are his wife, daughter and a son. Those are not 8 added in the present suit as a legal heirs and the plaintiff was not filed the suit in a representative capacity on behalf of his mother, brother and sister. In those circumstances, the suit is liable to be dismissed. Hence this issue is decided accordingly.

19)ISSUE NO.2: To what relief ?

In view of the above foregoing discussion, this court concludes that the suit is liable to be dismissed as there is no alternative.

20)In the result, the suit is dismissed, without costs.

Typed to my dictation directly on computer by the Personal Assistant of this court. Corrected, signed and pronounced by me in the open Court this the 2nd day of November, 2017.

SENIOR CIVIL JUDGE,

PUNGANUR.

APPENDIX OF EVIDENCE

Witnesses examined for Plaintiffs: Defendant:

PW.1: Mohana KrishnaDW1: M.K. Ansar Khan.

Exhibits marked for

Plaintiff: 2nd

Defendant

Ex.ASale agreement dated Ex.B1: Registration copy 126.09.2011 executed of regd. Sale deed dated by the first defendant 02.11.2010, in favour of father of plaintiff. Ex.B2: Registration copy Office copy of legal of registered sale deed Ex.Anoticedated dated 08.12.2011. 208.07.2014,

Postal acknowledgment, S.C.J. Ex.AN.J. Stamp . PGR. 3 Ex.A 4 9