O.S. No.155/2017 1 29-04-2026
IN THE COURT OF THE CIVIL JUDGE (JUNIOR DIVISION)::
RAJAMPET
Present : Sri P. RAJAN UDAY PRAKASH,
Civil Judge (Junior Division), Rajampet.
Wednesday, the Twenty Ninth day of April, Two Thousand Twenty Six.
ORIGINAL SUIT No.155 of 2017
Between:
1. Tallapaka Gangamma (Died leaving behind the plaintiff No.2)
2. Tallapaka Narasamma, W/o Gangaiah, 60 years, Usman nagar, Rajampet.… Plaintiffs
And
Penigalapati Penchalaiah Naidu, S/o Narasimhulu Naidu, 30 years, D. No.6/958/1, Noonevaripalli, Rajampet. … Defendant
-oo00oo-
This suit came before me on 17-04-2026 for final hearing in the presence of Sri T. Raghunath Reddy, learned counsel for the plaintiffs, and of Sri. K. Ravi Sankar, learned counsel for the defendant, 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.The present suit is filed seeking to declare the title of the plaintiffs over the suit A schedule property, for a mandatory injunction directing the defendant to remove the barbed wire fencing which was laid blocking the suit B schedule property, and for costs of the suit.
The gist of the plaint:
2.The plaintiff No.1 is the wife of one Tallapaka Pitchaiah and the plaintiff No.2 is their daughter. Pitchaiah purchased the suit A schedule property from one Lakshman on 24-10-1987 under a registered sale deed for valuable consideration of Rs.15,000/-. The possession of the suit A schedule property was delivered to Pitchaiah on the same day and he was in possession and enjoyment of the same till his death. A pattadar passbook was also issued in the name of Pitchaiah. Pitchaiah died intestate on 13-05- 2003 leaving behind the plaintiffs as his legal heirs. After the death of
Pitchaiah, his estate devolved upon the plaintiffs. The plaintiffs have been
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in peaceful possession and enjoyment of the suit A schedule property. The suit A schedule property is shown as ABCD in the plaint plan. After the death of Pitchaiah, the pattadar passbook was issued in the name of the plaintiff No.1 with the consent of the plaintiff No.2. The plaintiffs, their ancestors and their vendor have been using the suit B schedule property as a passage to reach the suit A schedule property, from a long time. The suit
B schedule property is shown as EFGH in the plaint plan.
3.The defendant, who has no right or title over the land in survey
No.20 of Kichamambapuram village highhandedly trespassed into the same and caused obstruction to the enjoyment of the plaintiffs over the suit
B schedule property. The plaintiff No.1 submitted a representation to the
District Collector and as per the orders of the District Collector, the
Revenue Divisional Officer passed orders dated 29-11-2008 in favour of the plaintiff No.1 directing the owners of the land in survey No.20 to allow the plaintiff No.1 to reach the suit A schedule property through the suit B schedule property, which was measured and demarcated by the Mandal
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surveyor. Thereafter, the defendant without any right or title, trespassed and blocked the suit B schedule property which barbed wire fencing in
May 2016. The plaintiff No.1 approached the Tahsildar, who directed the defendant to remove the fencing. The defendant did not oblige. The plaintiffs approached the police, who directed the defendant to remove the fencing. The defendant replied that since it was a civil dispute, the police had no role to play. Further, on 18-12-2017, the defendant highhandedly tried to trespass into the suit A schedule property. The plaintiffs resisted the same. Hence the suit.
The case of the defendant:
4.The defendant filed a written statement denying the averments of the plaint and contented that item number 1 of the suit A schedule property is government land and so, the vendor of the husband of the plaintiff No.1 had no right to sell the same in favour of the husband of the plaintiff No.1. The registered sale deed dated 24-10-1987 is a fraudulent document and it has no legal sanctity. The plaint plan does not reveal the
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actual features of the suit schedule properties. The pattadar passbook was also issued as a result of the misrepresentation played on the revenue authorities. The survey numbers and extent of the suit A schedule property are not shown in the plaint plan. The claim of the plaintiffs over item No.1 of the suit A schedule property is not maintainable since the property belongs to the government. The government is a necessary party to the suit and the same is confirmed by the market value certificate filed by the plaintiffs themselves.
5.The orders passed by the Revenue Divisional Officer,
Rajampet dated 29-11-2008 have no legal sanctity and no direction is given to the real owner of the land in survey No.20 of Kichamambapuram village. The defendant is not a party to the aforesaid proceedings. survey
No.20 of Kichamambapuram village consists of more than 900 acres. The boundaries of the suit A schedule property are not mentioned. The plaint plan is also not correctly drawn. Even the boundaries of the suit B schedule property are not correctly mentioned in the plaint. The defendant filed a
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suit vide O.S. No.89 of 2014 on the file of the Hon'ble Civil Judge Senior
Division, Rajampet against the government for an extent of acre 3.41 cents of land in survey No.20 of Kichamambapuram village for declaration of his right and title. In the aforesaid suit, the defendant also filed an application for appointment of Advocate Commissioner and an Advocate
Commissioner was appointed to note down the physical features of the property therein with the assistance of the Mandal survey.
6.In the earlier suit, the plan of the Mandal surveyor reveals that an extent of acre 3.41 cents of land in survey No.20 of Kichamambapuram village was under the encroachment of the defendant herein and that the encroachment is on the northern side of survey Nos.994 and 993 of Poli village. Further, on the northern side of survey No.995 of Poli village, there is an extent of acre 2.72 cents of land in survey No.20 of
Kichamambapuram village. There is no question of any passage or road between the land in survey Nos.993, 994, 995 of Poli village and the land in survey No.20 of Kichamambapuram village i.e., the acre 3.41 cents of
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land of the defendant. The advocate commissioner showed a rastha at the northern side of the suit schedule land in the earlier suit, and also showed a fencing. However, there is no road on the northern side of survey No.992.
7.The plan of the Mandal surveyor in the aforesaid suit does not show any rastha. However, the advocate commissioner showed the rastha at the northern side. The plaintiffs did not seek any claim or declaration over the suit B schedule property and straightaway claimed the relief of mandatory injunction to remove the barbed wire fencing. The question of a mandatory injunction does not arise without seeking the relief of declaration of title. The suit is not maintainable since the real owner of the suit B schedule property is not made as a party to the present suit. Hence the suit is bad for non joinder of necessary parties. Since the suit A schedule property is government land, the valuation with regard to the same is not maintainable. Further, the relief of mandatory injunction regarding suit B schedule property is not maintainable without seeking the relief of declaration of title. Hence the suit is liable to be dismissed.
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8.Basing on the rival contentions of both the parties, the following issues were settled for trial:
1. Whether the plaintiffs are entitled to be declared as the absolute owners of the suit A schedule property ??
2. Whether the suit is bad for non joinder of the necessary parties i.e., the government, and the owners of the land in survey No.20 of Kichamambapuram village ??
3. Whether the plaintiffs are entitled to a mandatory injunction directing the defendant to remove the barbed wire fencing blocking the suit B schedule property ??
4. To what relief are the plaintiffs entitled to ??
9.During the trial, the plaintiff No.1 died and the plaintiff No.2, being her sole legal heir, was already on record. The plaintiff No.2 was examined as PW-1 and Exhibits A1 to A5 were marked through her.
Exhibits B1 to B3 were marked in the cross-examination of PW-1. One
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Guduru Rangaswamy Raju was examined as PW-2 and no Exhibits were marked through him. The defendant was examined as DW-1 and Exhibits
B4 and B5 were marked through him. The advocate commissioner in the suit vide O.S. No.89 of 2014 by name H. Sudharshan Reddy was examined as DW-2 and Exhibit B6 was marked through him.
10.Heard the learned counsel for both sides. Perused the record.
Issue No.1:
11.The contention of the plaintiffs is that one Tallapaka Pitchaiah, i.e., the husband of the plaintiff No.1 and the father of the plaintiff No.2 purchased the suit A schedule property from one Lakshman on 24-10-1987 under a registered sale deed for valuable consideration of Rs.15,000/-.
Pitchaiah was in possession and enjoyment of the same till his death and a pattadar passbook was also issued in his name. Pitchaiah died intestate on 13-05-2003 leaving behind the plaintiffs as his legal heirs. After the death of Pitchaiah, the plaintiffs have been in peaceful possession and enjoyment of the suit A schedule property. According to the plaintiffs, they along with
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their ancestors and their vendor have been using the suit B schedule property as a passage to reach the suit A schedule property from a long time. The defendant has no right or title over the suit B schedule property.
The defendant trespassed into the suit B schedule property and caused obstruction to the enjoyment of the plaintiffs over the same. On the representation of the plaintiffs, the Revenue Divisional Officer passed orders dated 29-11-2018 in favour of the plaintiff No.1 directing the owners of the land in survey No.20 to allow the plaintiff No.1 to reach the suit A schedule property through the suit B schedule property. However, the defendant blocked the suit B schedule property which barbed wire fencing in May 2016. The defendant even tried to trespass into the suit A schedule property.
12.The case of the defendant is that item number 1 of the suit A schedule property is government land and so, the vendor of the husband of the plaintiff No. 1 had no right to sell the same. The registered sale deed
dated 24-10-1987 has no legal sanctity. The pattadar passbooks were also
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issued due to the misrepresentation played on the revenue authorities.
According to the defendant, the claim of the plaintiffs over item No.1 of the suit A schedule property is not maintainable since the property belongs to the government. The government is a necessary party to the suit and the same is confirmed by the market value certificate filed by the plaintiffs.
The orders passed by the Revenue Divisional Officer have no legal sanctity and no direction is given to the real owner. It is contended that the defendant is not a party to the aforesaid proceedings in which the orders were passed.
13.The defendant further contended that he filed a suit vide O.S.
No.89 of 2014 on the file of the Hon'ble Civil Judge, Senior Division
Rajampet against the government for an extent of acre 3.41 cents of land in survey No.20 of Kichamambapuram village for declaration of his right and title. The defendant also filed an application for appointment of Advocate
Commissioner and the Advocate Commissioner was appointed to note down the physical features of the property with the assistance of the
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Mandal survey. In the aforesaid suit, the plan of the Mandal surveyor reveals that an extent of acre 3.41 cents of land in survey No.20 of
Kichamambapuram village was under the encroachment of the defendant herein. As per the defendant, there is no question of any passage or road between the Poli village survey Nos.993, 994, 995 and survey No.20 of
Kichamambapuram village. Though the advocate commissioner showed a rastha at the northern side of the suit schedule land in the earlier suit, there is no such road. The plan of the Mandal surveyor in the aforesaid suit does not show any rastha. It is pleaded that since the plaintiffs did not seek any claim or declaration over the suit B schedule property and straightaway claimed the relief of mandatory injunction, the relief is not maintainable.
As per the written statement, the suit is not maintainable since the real owner of the B schedule property is not made as a party to the suit.
14.The pivotal contention of the plaintiffs is that the suit A schedule property was purchased by the husband of the plaintiff No.1 by name Pitchaiah under a registered sale deed and that he was in possession
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and enjoyment of the same. It is further stated that a passbook was also issued his favour. The suit A schedule property is shown as ABCD in the plaint plan. The plaintiffs further stated that their vendor along with their ancestors have been using the suit B schedule property as a passage to enter into the suit A schedule property. According to the plaintiffs, the defendant has no right or title over the suit B schedule property and he obstructed the usage of the same by the plaintiffs and laid a barbed wire fencing. Per contract, the defendant raised as many as four significant pleas in support of his case. The defendant contended that item No.1 of the suit
A schedule property was government land and that the same could not have been alienated in favour of Pitchaiah and so, the suit is not maintainable without adding the government as a party. Secondly, the defendant contended that no passage exists between survey No.20 of
Kichamambapuram village and the suit A schedule property. Thirdly, the defendant contended that the suit is not maintainable without adding the actual owner of survey No.20 of Kichamambapuram village i.e., the suit B schedule property as a party. Fourthly and lastly, the defendant contended
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that since the plaintiffs did not seek any declaration of right or title over the suit B schedule property, they cannot claim a mandatory injunction.
15.Thus, aside from establishing that the plaintiffs are the absolute owners of the suit A schedule property, they must also establish that they have a right of passage through the suit B schedule property and that they are entitled to the relief of a mandatory injunction directing the defendant to remove the barbed wire fencing arranged by the defendant. In this connection, since the plaintiffs contended that the defendant even tried to encroach into the suit A schedule property, they filed the suit for declaration. In order to establish their case, the plaintiffs relied upon
Exhibit A1 to A5. The record reveals that Exhibit A1 is the registered sale deed dated 24-10-1987 standing in the name of the husband of the plaintiff
No.1. A perusal of Exhibit A1 further reveals that it pertains to an extent of acre 2.16 cents of land in survey No. 982 and an extent of acre 1.50 cents of land in survey No.983 of Poli village. The record further reveals that the suit A schedule property is situated in an extent of acre 2.16 cents of land
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in survey No.982 and an extent of acre 1.50 cents of land in survey No.983 of Poli Village. When such is the case, it can safely be said that Exhibit A1 pertains to the suit A schedule property.
16.The record further reveals that Exhibit A2 is the pattadar passbook issued in the name of the plaintiff No.1. As per the entries in
Exhibit A2, it is seen that an extent of acre 2.16 cents of land in survey
No.982 and an extent of acre 1.50 cents of land in survey No.983 of Poli village are shown to be in the name of the plaintiff No.1. However, Exhibit
A2 reveals that there happens to be a correction in the extents. Regardless, this Court cannot ignore the fact that it is not the specific case of the defendant that Exhibit A2 is forged or fabricated. When such is the case, these corrections in Exhibit A2 hold little value. Putting aside the other documentary evidence adduced on behalf of the plaintiffs for the time being, it is seen that when Exhibit A1, in particular, is taken into consideration, a more than reasonable inference can be drawn that the suit
A schedule property was purchased by the husband of the plaintiff No.1.
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17.At this juncture, this Court is bound to consider the plea of the defendant in this regard. The defendant categorically contended that the suit A schedule property belongs to the government and, as such, the same could not have been sold to the husband of the plaintiff No.1. It is further contended on behalf of the defendant that since the vendor of the husband of the plaintiff No.1 himself had no right or title over the suit A schedule property, no right or title could have been conveyed in favour of the husband of the plaintiff No.1 under Exhibit A1. Thus, the defendant denied the title of the plaintiffs over the suit A schedule property. However, it must be noted that the defendant did not claim any right or title in the suit
A schedule property. He merely stated that since it is government land, the plaintiffs could not have obtained any valid right or title under Exhibit A1.
18.In this regard, a perusal of the examination-in-chief affidavit of the plaintiff No.2/PW-1 reveals that it contains similar recitals as that of the plaint. In her cross-examination, PW-1 admitted that she worked as a
Revenue Inspector at Rajampet and Pullampet. She further admitted that
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she has complete knowledge over the revenue affairs. When confronted with the market value certificate filed along with the plaint, PW-1 categorically admitted that as per the market value certificate, item No.1 of the suit A schedule property is shown to be DKT land. The market value certificate is marked as Exhibit B1 on behalf of the defendant. Delving into this aspect, a perusal of Exhibit B1 reveals that it is filed on behalf of the plaintiffs themselves and more importantly, as per the recitals therein, it is stated that survey No.982 of Poli village is classified as DKT land and so, the value cannot be stated.
19.In this connection, two things crop up for consideration. The first among them happens to be that though the market value certificate has been filed on behalf of the plaintiffs, they did not choose to have the same marked on their behalf for reasons unknown or best known to them. When a party does not intend to mark a document filed on its own behalf, prudence and logic dictate that such document would contain something adverse to the case of such a party. A question might arise that the very
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filing of such a document could have been avoided by the party, without having the trouble to omit or skip having the same marked on its behalf.
Nevertheless, since the present suit is filed for declaration of title, it becomes obligatory on the part of the plaintiffs to file the market value certificate and as such, the same has been filed. When such is the case, it can only be said that the failure of the plaintiffs to have the market value certificate filed by them marked on their behalf can only be termed as a deliberate omission but not an innocuous inaction or an oversight.
20.Regardless, when the market value certificate is marked on behalf of one of the parties, it becomes immaterial that the plaintiffs did not choose to have the same marked. No reason of exclusion whatsoever has been adduced by the learned counsel for the plaintiffs as to why
Exhibit B1 mentions item No.1 of the suit A schedule property to be DKT land which belongs to the government. This recital in Exhibit B1 would only strengthen the plea of the defendant that item No.1 of the suit A schedule property is government land. However, the same does not stand
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as proof of this plea of the defendant. Delving a little deeper, PW-1 deposed that item No.2 of the suit A schedule property was given to their vendor by Petlu family. She further stated that she was unaware as to how their vendor acquired the property.
21.In this connection, the record reveals that as per the contents of
Exhibit A1, there is no mention as to how the vendor of the husband of the plaintiff No.1 acquired the property therein. Exhibit A1 only mentions that the property therein has been under the right and enjoyment of the vendor of the husband of the plaintiff No.1 and that he sold the same to the husband of the plaintiff No.1. When such is the case, it becomes evident that Exhibit A1 does not depict how the vendor of the husband of the plaintiff No.1 got the property therein. In addition, this Court cannot ignore the fact that no link documents have been filed by the plaintiffs and neither did they put forth any pleading as to how the vendor under Exhibit A1 got the property therein. Even assuming that the link documents could not have been obtained, still, the plaintiffs could have very well put forth as to how
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the vendor of the suit A schedule property acquired his right over the same.
The plaint merely mentions that the vendor under Exhibit A1 sold the property to the husband of the plaintiff No.1 and it does not even put forth how the vendor got the property.
22.In her cross-examination, PW-1 categorically admitted that there is no document to show how the vendor under Exhibit A1 got item
No.2 of the suit A schedule property. PW-1 denied the suggestion that item
No.1 of the suit A schedule property belongs to the government. Save for these aspects, the cross-examination of PW-1 does not contain anything in connection with Exhibit A1. Furthermore, it is pertinent to note that PW-1 was not even cross-examined specifically in connection with Exhibit A2 save for a mere suggestion that Exhibit A2 was issued without inquiry, which was denied by her. Nonetheless, notwithstanding the fact that the plaintiffs have not been able to put forth how the vendor under Exhibit A1 got the title therein, still, when the registered document exists in favour of the husband of the plaintiff No.1, the inability of the plaintiffs to establish
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the title of the vendor under Exhibit A1 assumes a secondary role, if not an insignificant role.
23.The examination-in-chief affidavit of PW-2 reveals that he happens to be a third party to the suit. He deposed that the husband of the plaintiff No.1 purchased the suit A schedule property about 35 years ago and after the death of the husband of the plaintiff No.1, the plaintiffs have been in possession and enjoyment of the same. In his cross-examination,
PW-2 categorically stated that he did not know how PW-1 acquired the suit
A schedule property. The testimony of PW-2 does not contain anything else with regard to the title of the plaintiffs over the suit A schedule property. Thus, though PW-2 deposed in his examination-in-chief affidavit that the suit A schedule property was purchased by the husband of the plaintiff No.1, he categorically stated in his cross-examination that he was unaware as to how PW-1 acquired the suit A schedule property. That being the case, the evidence of PW-2 does not aid the plaintiffs in any manner whatsoever to establish their title over the suit A schedule property.
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24.The defendant/DW-1 reiterated the contents of the written statement in his examination-in-chief affidavit. In his cross-examination,
DW-1 categorically stated that the suit A schedule property belongs to the government and that he has no right over the same. Strangely, DW-1 stated that to his knowledge, the plaintiff No.1 occupied the suit A schedule property. He admitted that he did not file any documents to show that the suit A schedule property belongs to the government. He further admitted that prior to the possession of the plaintiffs, the same was in possession of one Lakshman. In this connection, two things crop for consideration.
Firstly, as noted earlier, it is not the case of the defendant that he has any right, title or interest over the suit A schedule property. Secondly, though the defendant stated that the suit A schedule property belongs to the government, no evidence has been adduced in this regard. Granted, it may be argued that since the defendant is not claiming any right or title over the suit A schedule property, he could not have been in a position to adduce any documentary evidence regarding the same. However, when the plea of the defendant is that the suit A schedule property is government land, he
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could have very well obtained one record or the other showing that the suit
A schedule property belongs to the government, if not to himself.
However, no such evidence has been adduced on behalf of the defendant.
25.To further complicate things, DW-1 categorically stated that to his knowledge, the plaintiff No.1 occupied the suit A schedule property.
He further admitted that the possession of the suit A schedule property vested with one Lakshman. In his connection, the record reveals that the said Lakshman happens to be none other than the vendor under Exhibit A1.
That being the case, this admission of DW-1 would only aid the plaintiffs to strengthen their title over the suit A schedule property. Further, DW-1 stated that he was unaware if the said Lakshman executed Exhibit A1 in favour of the husband of the plaintiff No.1. He further stated that he was unaware if the title deed and pattadar passbook were issued in the name of the plaintiff No.1. In this connection, the record reveals that Exhibit A1 pertains to the suit A schedule property, and it was executed by one
Lakshman. Furthermore, Exhibit A2 categorically reveals that it happens to
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be the pattadar passbook that was issued in the name of the plaintiff No.1 for the suit A schedule property. When such is the case, this ignorance on the part of the defendant does not aid his case.
26.At a later point of time, DW-1 denied the suggestion that after identifying the possession of the plaintiffs, the government issued the pattadar passbook and title deed in their favour. Though this suggestion was denied by DW-1, the record reveals that the pattadar passbook was, in fact, issued in favour of the plaintiff No.1. That being the scenario, this denial of DW-1 does not have any significance. Thus, it is seen that though
DW-1 did not categorically admit the right and title of the plaintiffs over the suit A schedule property, even his evidence goes to show that the suit
A schedule property was in possession of the vendor of the husband of the plaintiff No.1. Moreover, since the defendant did not claim any right or title in the suit A schedule property, any challenge to the right or title of the plaintiffs over the suit A schedule property by the defendant would lose its significance.
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27.The record reveals that DW-2 happens to be the learned
Advocate Commissioner who was appointed in the suit vide O.S. No.89 of 2014 and as such, his evidence regarding the right and title of the parties herein would have no significance. Thus, notwithstanding the fact that the plaintiffs have been unable to put forth the details as to how their vendor in
Exhibit A1 obtained the suit A schedule property, still, based on Exhibit
A1 in particular, the right and title of the plaintiffs over the suit A schedule property remains established. As such, when a registered document exists in favour of the plaintiffs for the suit A schedule property and when the defendant fails to prove that the suit A schedule property belongs to the government and when there is nothing on record to indicate that the defendant ever approached any authority claiming that the government land was alienated under the guise of Exhibit A1, the only logical conclusion that follows is that while the plaintiffs have been successful in establishing their title over the suit A schedule property, the defendant failed to establish otherwise. Accordingly, issue No.1 is answered in favour of the plaintiffs and against the defendant.
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Issue Nos.2 and 3:
28.With regard to the non joinder of necessary parties, it must be noted that this plea of the defendant is made in connection with two parties. The defendant contended that since the suit A schedule property belongs to the government, the government is a necessary party as the plaintiffs sought the relief of declaration of title over the suit A schedule property. The defendant also pleaded that the owners of the land in survey
No.20 i.e., the suit B schedule property are necessary parties to the suit since the plaintiffs are claiming a right through the same and so, the suit is bad for non joinder of the owners of the land in survey No.20. Thus, according to the defendant, the government as well as the owners of the land in survey No.20 of Kichamambapuram village are necessary parties to the suit.
29.Putting aside the latter contention of the defendant regarding the non joinder of the owners of the land in survey No.20 for the time being and considering only the non joinder of the government as a party to
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the suit, it is seen that the specific plea of the defendant is that the suit A schedule property is government land. However, in his cross-examination, the defendant categorically admitted that he did not adduce any documentary evidence whatsoever to show that the suit A schedule property is government land. While this Court cannot ignore the fact that the plaintiffs have not been able to put forth as to how the vendor under
Exhibit A1 acquired the suit A schedule property, still, when a registered document exists in favour of the plaintiffs, this inaction of the plaintiffs would have little significance. Furthermore, this Court cannot ignore the fact that Exhibit A2, which happens to be the pattadar passbook issued by the revenue authorities, categorically goes to show the entries pertaining to the suit A schedule property in the name of the plaintiff No.1.
30.If the plea of the defendant that the suit A schedule property belongs to the government is considered, in the usual course of things, a registered document could not have been executed pertaining to the same.
Even assuming that the registered document was obtained by hook or
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crook, still, the name of the plaintiff No.1, in the usual course of things, would not have been mutated against the suit A schedule property if the same belonged to the government. In addition, it is nowhere stated by the defendant that the government initiated any proceedings against the plaintiffs claiming that the suit A schedule property belongs to the government. Furthermore, it is nowhere stated by the defendant that he made any representation to the government stating that the plaintiffs have got Exhibit A1 executed in their favour over the suit A schedule property which, according to the defendant, belongs to the government. The defendant has not put forth as to why he stayed silent on this aspect.
31.Thus, when a registered document exists in favour of the plaintiffs and when the very government, who is stated to be the owner of the suit A schedule property according to the defendant, has mutated the name of the plaintiff No.1 in the revenue records, and when no proceedings were initiated by the government against the plaintiffs at any point of time in connection with the suit A schedule property, the plea of the defendant
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that the suit A schedule property belongs to the government does not hold water. Even considering otherwise, still, when the defendant does not claim any right or title in the suit A schedule property and merely contends that it belongs to the government, the defendant cannot be permitted to take up the mantle on behalf of the government to defend the interests of the government. It is incumbent upon the government to protect its own interests.
32.It may be assumed that the defendant, in his capacity as an upstanding and law abiding citizen, has chosen to protect the interests of the government. However, even in such a case, the course of option open to the defendant would be otherwise. The defendant could have filed a
Public Interest Litigation or initiated proceedings in the capacity of a citizen stating that the land of the government is being encroached upon and enjoyed by the plaintiffs. Such a plea requires the defendant to initiate other proceedings, but not to take up this matter as a ground of defence in his written statement in the present suit. When such is the case, it only
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stands that the defendant, till this juncture, failed to prove that the government is a necessary party to the suit.
33.In his cross-examination, DW-1 denied the suggestion that since the government itself identified the possession of the plaintiffs and issued the passbook, the government is not a necessary party. Be that as it may, when this Court has already arrived at a finding that the plaintiffs have established their title over the suit A schedule property based on
Exhibit A1, and when the name of the plaintiff No.1 is mutated in the revenue records, and when no proceedings were initiated at any point of time against the plaintiffs by the government claiming that the suit A schedule property belongs to the government, and when the defendant has not made any representation to the government stating that the suit A schedule property belongs to the government, and when the defendant did not choose to contest the title of the plaintiffs over the suit A schedule property by initiating any proceedings, the defendant cannot take shelter
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under the plea that the suit A schedule property belongs to the government and so, the government is a necessary party.
34.Further, this Court cannot ignore the fact that even the defendant could have taken steps to implead the government as a part of the suit if, according to him, the suit A schedule property belongs to the government. However, no such steps have been taken on his behalf. Thus, when all these factors are taken into consideration, it can only be said that the government is not a necessary party to the suit. Furthermore, the plaintiffs, with the help of Exhibit A1, have categorically established their right and title over the suit A schedule property. In addition, it must be noted that the defendant did not claim any right or title over the suit A schedule property in his own capacity. When all these factors are considered, the only conclusion that follows is that the government is not a necessary party to the present proceedings. Accordingly, the first limb of the plea of the defendant regarding the non joinder of necessary parties i.e., the limb regarding the government does not hold water.
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35.Delving into the aspect pertinent to the existence of a passage through the suit B schedule property, and putting aside the non joinder of the owners of survey No.20 for the time being, according to the plaintiffs, they contended that there is a passage to reach the suit A schedule property through the suit B schedule property and that the same is being used from a long time. They further stated that the defendant blocked the usage of the suit B schedule property by laying a barbed wire fencing around the same, thereby restraining the plaintiffs from using the suit B schedule property as a passage to reach the suit A schedule property. The defendant pleaded that he is in possession and enjoyment of an extent of acre 3.41 cents of land in survey No.20 of Kichamambapuram village by encroaching into the same and that no passage as pleaded by the plaintiffs exist between Poli village and Kichamambapuram village.
36.When the defendant categorically denied both the existence of the passage as well as the right of the plaintiffs to use such passage, if any, the onus is undoubtedly cast upon the plaintiffs to establish the same.
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Delving a little deeper, it must be noted that it would not suffice on the part of the plaintiffs to merely establish that a passage exists. The plaintiffs must, besides establishing the existence of a passage, also establish that they have a right to use such passage. Then and only then would the relief of a mandatory injunction be granted in favour of the plaintiffs. In this connection, the record reveals that the evidence of PW-1 and more particularly, the cross-examination of PW-1 is silent on the aspect as to whether this right of passage claimed by the plaintiffs is incorporated in any document. PW-1 has not been cross-examined on this particular aspect and as such, a question would arise if this Court is expected to look into the aspect as to whether any documentary evidence was adduced establishing the existence of the passage and the right of the plaintiffs to use the same.
37.This Court cannot ignore the fact that when it is the plaintiffs who intend to rely upon the existence of the passage as well as their right to use the same, notwithstanding the fact that PW-1 has not been cross- examined on this particular aspect, still, the onus continues to ride on the
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plaintiffs to establish the existence of such a passage. In connection with this particular aspect, it is seen that even according to the plaintiffs, the suit
B schedule property is being used by them as a passage to enjoy the suit A schedule property. A perusal of Exhibit A1 reveals that though it pertains to the suit A schedule property, it does not mention anything about the existence of the passage and nor does it mention about the right of the plaintiffs to use any passage to reach the property therein i.e., the suit A schedule property. That being the case, the plaintiffs cannot rely upon
Exhibit A1 in support of their contention that the passage exists and that they have a right to use the same.
38.Exhibit A2, which happens to be the pattadar passbook, does not aid the case of the plaintiffs either in this regard. The record reveals that Exhibit A3 happens to be the orders passed by the Tahsildar dated 29- 11-2008. As per Exhibit A3, it is seen that the plaintiff No.1 approached the District Collector and requested for settlement of the issue pertaining to the rastha in survey No.982 of Poli village. Exhibit A3 states that after a
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personal inquiry was conducted, orders are issued stating that an extent of 20 feet of rastha is to be provided to the plaintiff No.1 herein through survey No.20 of Kichamambapuram village. Exhibit A3 further states that the owner of the land in survey No.20 of Kichamambapuram village is directed to allow the plaintiff No.1 in the rastha shown to an extent of 20 feet, without any obstructions. Relying upon Exhibit A3, the plaintiffs contended that the rastha is, in fact, in existence through survey No.20 of
Kichamambapuram village and more importantly, that they have a right to use the same.
39.Per contra, the defendant contended that the orders passed under Exhibit A3 have no legal sanctity and that no direction was issued to the real owner. The defendant further pleaded that he is not a party to the proceedings in which the orders under Exhibit A3 were passed. In connection with the aspects pertaining to Exhibit A3, PW-1 admitted in her cross-examination that as per Exhibit A3, she approached the authorities for settlement of rastha dispute in survey No.982 of Poli village and that a
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20 feet rastha was provided through survey No.20 of Kichamambapuram village and further that the owner of the land in survey No.20 was directed to provide the aforesaid rastha. She stated that she was unaware if the owner of the survey No.20 as mentioned in Exhibit A3 is none other than the government itself.
40.While the admission of PW-1 regarding the direction given by the revenue authorities is evident in Exhibit A3, this suggestion posed to
PW-1 that the owner of the land in survey No.20 who was directed to provide the rastha is the government itself should be looked into. Though
PW-1 denied that she was unaware if the owner so directed under Exhibit
A3 is the government itself, still, the fact that this suggestion was posed to
PW-1 goes to imply that according to the defendant, the owner of the land in survey No.20 who was directed to provide the rastha happens to be the government itself. However, it is nowhere mentioned in the written statement that the owner of the land in survey No.20 or a part of it happens to be the government. When such is the case, this suggestion as posed to
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PW-1 appears unreliable notwithstanding the fact that PW-1 was ignorant of the same.
41.In his cross-examination, DW-1 stated that he was unaware of the survey number of the suit schedule property. He further stated that the dispute is regarding the road in survey No.20. DW-1 further stated that he has knowledge of the orders passed under Exhibit A3 and that after the orders were passed, a rastha was provided on one side. DW-1 denied the suggestion that except the rastha through the suit B schedule property, the plaintiffs have no other way to reach the suit A schedule property. He further admitted that he did not file any documents to show that the plaintiffs have any other way except through the suit B schedule property.
Strangely, DW-1 categorically stated that he has no objection for the plaintiffs to use the rastha as provided by the government in pursuance of the orders passed under Exhibit A3. However, it is at this juncture that the plot thickens. Exhibit A3 reveals that it does not specifically mention the
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dimensions of the rastha and neither does it mention the specific location of the rastha in survey No.20 of Kichamambapuram Village.
42.Furthermore, when DW-1 himself categorically stated that a rastha was provided on one side after the orders under Exhibit A3 were passed, it becomes more than evident that one rastha was provided to the plaintiffs. Though DW-1 denied the suggestion that the plaintiffs have no other rastha except through the suit B schedule property, he deposed that he did not file any evidence to show that any other rastha is in existence.
The statement of DW-1 that he has no objection for the plaintiffs using the rastha provided by the government under Exhibit A3 categorically goes to show that DW-1 does not object to or claim any right over the rastha as provided by the government under Exhibit A3. However, even considering the statement of DW-1, still, the specific location of this rastha seems obscure. It is at this juncture, that this Court is bound to consider the plaint plan/Exhibit A5. Exhibit A5 reveals that while the suit A schedule
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property is shown as ABCD therein, the suit B schedule property is shown as EFGH.
43.It is pertinent to note that Exhibit A5 does not mention the eastern boundary or the southern boundary of the suit A schedule property for that matter. As per the contents of Exhibit A5, the suit B schedule property happens to be situated towards the north west side of the suit A schedule property. It must be noted that the suit B schedule property, as per
Exhibit A5, does not form the entire northern boundary of the suit A schedule property or the entire western boundary, for that matter. When such is the case, the plaintiffs were bound to show all the boundaries of the suit A schedule property for a better and proper appreciation of the physical features. In addition, while the land of the defendant is shown to be situated towards the towards the western side of the suit A schedule property, the northern boundary of the suit B schedule property is not shown in Exhibit A5. As if these omissions do not suffice, Exhibit A5 categorically mentions that the length of the suit B schedule property is
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shown as 1564 feet. However, as per the orders under Exhibit A3, a rastha to an extent of 20 feet was provided to the plaintiffs through survey No.20 of Kichamambapuram village.
44.Thus, when a rastha of only 20 feet is provided under Exhibit
A3, and when the length of the suit B schedule property is shown to be 1564 feet, it cannot be said that the plaintiffs are permitted to use the entire length of the suit B schedule property as shown in Exhibit A5. It is not out of place to mention that the plaint plan ought to have categorically and specifically depicted the rastha which the plaintiffs intend to use through the suit B schedule property. Even according to the plaintiffs, they only have a right of passage through the suit B schedule property and such right, in the usual course of things, cannot be expected or extended through the entire suit B schedule property. It is nowhere specifically pleaded by the plaintiffs that they have to pass through the entire length of the suit B schedule property to reach the suit A schedule property. Even assuming that the same is the case of the plaintiffs, still, by virtue of the orders under
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Exhibit A3 on which the plaintiffs rely upon to establish their right of the rastha, it is seen that a rastha of only 20 feet was directed to be provided for the plaintiffs. When such is the case, it becomes incumbent upon the plaintiffs to put forth the specific location as to where this 20 feet rastha is situated in the 1564 feet of the suit B schedule property. The plaint plan does not reveal this aspect and as such, it can only be said that the plaint plan appears to be incomplete.
45.Furthermore, the fact that not even the boundaries of the suit A schedule property and the suit B schedule property have been completely shown cannot be ignored. To further complicate things, this Court cannot ignore the categorical statement of PW-1 in her cross-examination that she did not file Exhibit A5. It must be noted that PW-1 was confronted with
Exhibit A5 during the course of her cross-examination and strangely, she stated that it was not filed by her. Thus, owing to the fact that Exhibit A5 does not specifically depict the location of the rastha, coupled with the fact that even the boundaries of the properties are not properly mentioned
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therein and adding the statement of PW-1 that she did not file Exhibit A5, the only logical conclusion that follows is that Exhibit A5 does not aid the case of the plaintiffs in any manner whatsoever. Nevertheless, based on the statement of DW-1, it becomes evident that one rastha or the other was provided to the plaintiffs to reach the suit A schedule property and more importantly, that the defendant has no objection for the usage of the said rastha by the plaintiffs. However, when the very location of this rastha has not been put forth or established by the plaintiffs, it becomes questionable as to whether any relief can be passed with regard to such rastha, the details of which have not been placed before this Court specifically.
46.In addition, this Court cannot ignore the plea of the defendant that the orders under Exhibit A3 have no legal sanctity. In this connection, a perusal of Exhibit A3 reveals that it does not mention that both sides were heard before passing the orders therein. As a matter of fact, it does not even mention against whom the representation was given seeking the right of a rastha. As if these discrepancies do not appear sufficient, Exhibit
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A3 reveals that it does not even mention who the owner of the land in survey No.20 of Kichamambapuram village happens to be. Exhibit A3 merely directs the owner to provide the rastha as mentioned therein. In the humble opinion of this Court, the orders under Exhibit A3 do not appear to be justified and reasonable. Furthermore, when neither the details of the rastha nor the name of the owner of the survey No.20 is mentioned in
Exhibit A3, it becomes questionable as to how an order could have been passed against the aforesaid owner owing to the fact that it does not even appear that such owner was brought onto record or made as a party to the proceedings in which the orders under Exhibit A3 were passed.
47.When the authority under Exhibit A3 did not even choose to elicit the details of the owner against whom the orders were passed, the binding nature of such orders on the owner would undoubtedly be at stake.
To add to these complex scenarios, it is nowhere specifically stated by the plaintiffs that the defendant is a party to the proceedings in which the orders under Exhibit A3 were passed. When the defendant categorically
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stated that he is not a party to the proceedings in which the orders under
Exhibit A3 were passed and when the plaintiffs do not specifically state anywhere that the defendant was also made as a party to such proceedings, the outcome of such proceedings, for obvious reasons, cannot be held against the defendant. However, when the defendant himself states that he has no objection to the rastha as provided by the orders under Exhibit A3, the fact that the defendant was not made as a party to the proceedings becomes less significant. In any case, when there is no specific location of the rastha in Exhibit A3 and when there is no specific mention of the fact that all the interested parties were heard before passing such an order, and more significantly, when Exhibit A3 does not even put forth the name of the owner against whom the direction was issued, it only stands that
Exhibit A3 does not aid the case of the plaintiffs in establishing the right of a rastha.
48.Delving a little deeper, this Court cannot ignore the fact that
Exhibit A3 does not mention on what criteria it was arrived at that the
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plaintiffs have the right to use the aforesaid rastha. Exhibit A3 does not contain the specific details of the inquiry conducted, the nature of such an inquiry, and the documents or the oral evidence relied upon before passing such orders. Moreover, when it is not specifically stated that all the interested parties were heard prior to passing such an order, the competency of the authority in passing such an order which would adversely affect the rights of third parties becomes questionable. In addition, the fact that there is a vague mention in the order that the owner of the land in survey No.20 was directed to provide the rastha would only go to imply that the authority under Exhibit A3 did not even choose to ponder over or verify the fact as to who the owner happens to be. Thus, when the orders under Exhibit A3 appear to have been passed without even verifying who the owner happens to be, the sanctity of the same, as rightly contented by the defendant, becomes questionable.
49.In addition, it has already been held that Exhibit A5 cannot be relied upon by the plaintiffs owing to the fact that it does not even put forth
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the specific features of the suit schedule property. Till this juncture, though it appears that a rastha was provided to the plaintiffs, still they failed to specify the exact location of such a rastha. In addition, when the very proceedings under which such rastha was provided come under scrutiny for violation of the principles of natural justice and regarding the competency of the authority in having passed such an order, it becomes questionable if such orders can, in fact, be relied upon even for the limited purpose of establishing the right of the plaintiffs to use the rastha as mentioned therein. As such, even Exhibit A3 does not aid the case of the plaintiffs to establish their right over the suit B schedule property.
50.Delving into the documentary evidence adduced on behalf of the defendants, it is seen that the certified copy of the plan of the Mandal surveyor is marked as Exhibit B2. It must be noted that Exhibit B2 was marked in the cross-examination of PW-1 and the contents of the same are admitted by PW-1. When such is the case, Exhibit B2 can be relied upon by this Court. As per the contents of Exhibit P2, it is seen that there is an
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extent of acre 2.72 cents of land in survey No.20 in one part and an extent of acre 3.41 cents of land in another part. According to the defendant, he happens to be in possession of this part of acre 3.41 cents of land. The record further reveals that while Exhibit B2 mentions survey No.982, i.e., item No.1 of the suit A schedule property, it does not mention anything about survey No.983, i.e., item No.2 of the suit A schedule property.
Furthermore, it does not specifically depict any rastha from the land in survey No.20 of Kichamambapuram village to the suit A schedule property. When such is the case, Exhibit B2 does not aid the case of either party specifically.
51.In addition, the topography of the suit schedule properties and the location of the survey numbers as shown in Exhibit B2 do not tally with the topography and location of the properties as shown in Exhibit A5.
No reason whatsoever has been adduced by the learned counsel for the plaintiffs regarding this discrepancy. It is seen that Exhibit B4 happens to be the report of the learned Advocate Commissioner and Exhibit B5
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happens to be the rough plan of the learned Advocate Commissioner in
O.S. No.89 of 2014. In this connection, it must be noted that the plaint
does not mention anything about the suit vide O.S. No.89 of 2014.
However, the written statement categorically mentions that the aforesaid suit was filed by the defendant herein against the government, for the extent of acre 3.41 cents of land in survey No.20 of Kichamambapuram village. The Advocate Commissioner was appointed in the aforesaid suit.
As per the report of the Commissioner, it is mentioned that there is a road shown as BRDS therein on the northern side of the property therein. The rough plan filed by the learned Advocate Commissioner therein further reveals that the road appears to be on the northern side of the property therein.
52.In his examination-in-chief, DW-2 i.e., the learned Advocate
Commissioner stated that he prepared the rough plan as shown under
Exhibit B5. In his cross-examination, DW-2 categorically stated that the warrant was executed in the aforesaid suit and not the present suit. He
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further stated that he was unaware if the suit schedule property herein and the property therein is one and the same. In his connection, the record reveals that the defendant did not choose to put forth the specific details of the suit filed by him such as the relief sought for therein, or the copy of the plaint. In addition, it must be noted that Exhibits B4 and B5 do not even mention the survey number of the suit A schedule property herein. They merely mention a road running from the northern side of what appears to be survey No.20 of Kichamambapuram village but not through survey
No.20. When such is the case, it becomes questionable if Exhibits B4 and
B5 can be relied upon by either parties to the suit.
53.The record reveals that Exhibit B6 happens to be the warrant and notice of the learned Advocate Commissioner in the earlier suit. As per the same, the schedule therein is shown to be in an extent of acre 3.41 cents of land in survey No.20 of Kichamambapuram village. However, when it is seen that Exhibits B4 to B6 do not even depict the suit A schedule property herein, the effect or bearing of Exhibits B4 to B6 on the present suit
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becomes questionable. Thus, when the entire documentary evidence adduced on behalf of either sides is taken into consideration, there is no specific mention of the location of the rastha as claimed by the plaintiffs.
Though Exhibit A3 mentions that the rastha is about 20 feet long, the same is not depicted in the plaint plan, which only mentions the suit B schedule property to be 1564 feet long. While Exhibit A3 categorically mentions the rastha to be about 20 feet and when the same is not specifically shown in this 1564 feet length of survey No.20, the plaintiffs cannot be permitted to use the entire length of the 1564 feet of survey No.20 as a passage.
54.Moreover, though the suit schedule reveals that the boundaries and measurements of the suit B schedule property are shown, it must be noted that these boundaries appear to be for the entire extent of the suit B schedule property but not for the rastha as claimed by the plaintiffs. As noted earlier, the plaintiffs cannot be permitted to use the entire extent of the suit B schedule property as the rastha and they ought to have categorically put forth the exact location of the land which they intend to
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use as the rastha or over which they have a right to use as a rastha. When the same has not happened, it can only be said that the case of the plaintiffs is not specific. In addition, this Court cannot ignore the fact that save for the orders under Exhibit A3 and the statement of DW-1 that he has no objection to the usage of the rastha as provided under Exhibit A3, there is nothing on record to indicate the existence of the rastha or the right of the plaintiffs to use the rastha. Though Exhibits B4 and B5 mention the rastha on the northern side of survey No.20 of Kichamambapuram village, still, when they do not even depict the suit A schedule property herein, it becomes questionable if the aforesaid rastha does, in fact, extend till the suit A schedule property herein.
55.Thus, though the orders under Exhibit A3 direct the owner of the land in survey No.20 to provide the right of rastha to the plaintiffs and though the defendant categorically admitted in his cross-examination that a rastha was provided to the plaintiffs, when the specific location of such rastha is not put forth by the plaintiffs, arriving at a finding that the
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plaintiffs have a right to use the land in survey No.20 as a rastha might have the effect of enabling or entitling the plaintiffs to use the entire land in survey No.20 as a rastha, which cannot be permitted. Thus, though the existence of the rastha has been established to some extent, still, when the specific location is not put forth, granting a relief regarding the same, in the humble opinion of this Court, would be questionable. Further, in his cross- examination, the defendant denied the suggestion that without any right or possession, he has been obstructing the plaintiffs from using the rastha in the suit B schedule property. He volunteered that the suit B schedule property has been in his possession for the past 40 years. He admitted that he did not file any record in support of this contention.
56.In this connection, it must be noted that it is nowhere specifically stated by the defendant that he has been in possession and enjoyment of the suit B schedule property for the past 40 years. When such is the case, this statement of DW-1 cannot be relied upon. Even assuming otherwise, it becomes incumbent upon the plaintiffs to establish their own
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case without relying upon the weakness or inaction of the defendant. The plaintiffs must establish the specific location and existence of the rastha as well as the fact that they have a right to use the same. Failure to establish either of these conditions would only imply that the plaintiffs have failed in establishing their case. The fact that the defendant did not produce any evidence in support of his contention regarding his possession over survey
No.20 cannot be relied upon by the plaintiffs.
57.Reverting to the plea of non joinder of the owners of the land in survey No.20 of Kichamambapuram village, it must be noted that according to the plaintiffs, they have been using the rastha in survey No. 20 of Kichamambapuram village from a long time. It is further stated that the said rastha is the only way for the plaintiffs to reach the suit A schedule property. The plaintiffs contended that the defendant has no right or title over survey No.20 of Kichamambapuram village and that he has been obstructing their usage of the same as a passage. However, it must be noted that the plaintiffs did not put forth as to who has a right or title over survey
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No.20 of Kichamambapuram village. It is not the case of the plaintiffs either express or implied that they have any right, title or possession over survey No.20 of Kichamambapuram village i.e., the suit B schedule property. The only contention of the plaintiffs is that they have been using the suit B schedule property as a passage for ingress and ingress to the suit
A schedule property and that the defendant has been obstructing the same.
58.It is not out of place to mention that the plaintiffs did not even put forth the details as to who happens to be the owner of the land in survey No.20 of Kichamambapuram village. When, according to the plaintiffs, they have been using the suit B schedule property as a passage for ingress and ingress, in all probability, they would have been well aware of the fact as to who happens to be the owner of the aforesaid land.
According to the plaintiffs, it is not the defendant who is the owner of the suit B schedule property and as such, the plaintiffs were bound to put forth the details of the owner of the suit B schedule property. To further complicate things, it is seen that even Exhibit A3 under which the plaintiffs
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have been claiming the right of rastha and under which the rastha is provided to the plaintiffs does not put forth the details of the owner in survey No.20 of Kichamambapuram village. This Court is well aware of the fact that it can neither direct nor mandate the plaintiffs to litigate against someone against whom the plaintiffs have no grievance.
59.However, when the plaintiffs claim a right through the property of another person and when such person has not been made as a party to the suit, and when not even the details of such a person have been put forth, granting a relief with regard to such property in favour of the plaintiffs, even assuming that such a relief does not adversely affect the right of the owner so not impleaded, does not appear tenable and reasonable. Furthermore, this Court cannot ignore the fact that the very entitlement of the plaintiffs to seek the relief of a mandatory injunction, even according to them, emanates out of their right to use the suit B schedule property as a passage. This right, according to the plaintiffs, appears to be a right of easement be it one by way of necessity or by way
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of a grant or by way of a prescription. It is not out of place to mention that the entire plaint does not even mention the word ‘easement’. The plaint merely mentions that the plaintiffs, their ancestors and their vendor have been using the suit B schedule property as a passage to reach the suit A schedule property.
60.As noted earlier, it is not the specific case of the plaintiffs that they have any right, title or interest over the suit B schedule property save for its usage as a passage. When such is the case, the nature of this right, in the humble opinion of this Court, happens to be easementary in nature. The suit A schedule property, in such a case, happens to be the dominant heritage and the suit B schedule property happens to be the servient heritage. When such is the case, it becomes evident that the owner of the servant property ought to have been included as a part of the suit. It may be assumed that the owner has not committed any act affecting this right in favour of the plaintiffs and so, the plaintiffs have not impleaded him as a party to the suit. However, even in such a case, when the plaintiffs are
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claiming a relief emanating out of their purported right through the property of another person, such person ought to have been impleaded as a party to the suit to establish this purported right, to be entitled to the relief sought for.
61.In addition, even the relief sought for happens to be looked into. The plaintiffs have contended that the defendant laid fencing restraining them from using the suit B schedule property and so, they sought for a mandatory injunction directing the defendant to remove the same. For obvious reasons, the defendant can be directed to remove the fencing if and only if the plaintiffs succeed in establishing that they have a right to use the suit B schedule property as a passage. Granted, in all cases, it would not be incumbent upon the plaintiffs to seek a declaration in order to seek a relief of a mandatory injunction. This happens to be yet another plea raised by the defendant i.e., that the suit for a mandatory injunction is not maintainable without seeking the relief of declaration of debt.
However, when the very right and entitlement of the plaintiffs to claim the
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relief of a mandatory injunction emanates out of their purported right of easement, having such purported right of easement declared would become a precondition for the grant of the mandatory injunction in favour of the plaintiffs.
62.In other words, it is only because the plaintiffs contend that they have the right of passage through the suit B schedule property that the defendant should be mandated to remove the fencing obstructing such a right. That being the scenario, unless and until such right of the plaintiffs has been established, proved or declared, the relief of a mandatory injunction, which happens to be consequential to the declaration of such a right cannot be granted. If it turns out that no such right exists or that the plaintiffs failed to prove that such a right exists, needless to say, the defendant cannot be directed to remove the fencing laid by him even assuming that such a fencing was, in fact, laid. That being the case, as rightly argued by the defendant, the plaintiffs ought to have sought the
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relief of declaration of their right to use the suit B schedule property as a passage, be it an easementary right or any other right.
63.Unless and until the right of the plaintiffs has been pleaded and proved to the satisfaction of this Court, no relief or remedy can be granted against the person who is purported to have curtailed or restrained such a right. If there is no right, the question of obstructing such a right does not even emanate. In other words, when the plaintiffs claim that the defendant has been restraining them from enforcing their right over the property of another, be it in the form of an easement or any other form, the proof of such right becomes quintessential in the first place. Then and only then would the question arise as to whether the defendant did, in fact, encroach or barge into such a right and whether the defendant ought to be restrained from such encroachment. Strangely, the plaintiffs have not even sought to declare that they have a right to use the suit B schedule property. They have omitted or rather skipped this part and have straightaway gone to seek
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the relief of a mandatory injunction directing the defendant to remove the fencing which, according to them, hampered and dampened their right.
64.In the humble opinion of this Court, unless such a right has been prayed for to be declared to be in existence, the question of hampering or dampening such a right does not arise. Thus, when the evidence on record save for Exhibit A3 does not indicate or establish that the plaintiffs have any right to use the suit B schedule property as a passage and when even Exhibit A3 has been held to be unreliable and more significantly, when the plaintiffs did not even plead or pray to declare that such a right exists in their favour, a relief directing the defendant to remove the obstruction to such right, which has neither been pleaded and proved nor established, in the humble opinion of this Court, would have the ulterior and implying effect indicating that this Court has arrived at a finding that the plaintiffs do, in fact, have a right of passage over the suit B schedule property. In other words, directing the defendant to remove the fencing, even assuming that such a fencing has been laid, would be nothing
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short of an implied finding on the part of this Court that the plaintiffs have a right to use the suit B schedule property as a passage to the suit A schedule property. When the plaintiffs have not even pleaded for a declaration that such a right exists and when there is no evidence to indicate conclusively that such a right exists, this Court cannot resort to any action or finding that would have the effect of giving rise to an inference that such a right exists.
65.In addition, if the relief of a mandatory injunction happens to be granted, it would be nothing short of declaring the right of the plaintiffs, be it in the form of an easement or in any other form, to use the suit B schedule property as a passage. When the owner of the suit B schedule property is not shown as a party to the suit, it would neither be prudent nor appropriate on the part of this Court to render any finding that would give rise to such an inference. It does not imply that in all cases seeking the relief of a mandatory injunction, a relief of a declaration is mandated or necessary. However, when the situation and facts and circumstances of the
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case so warrant, and more importantly, when the relief of a mandatory injunction emanates out of the right in the nature of an easement, the declaration of such a right as well as the inclusion of the party through whose land such a right in the nature of an easement has been claimed are both necessary and essential for a complete and proper adjudication of the proceedings.
66.The record reveals that the plaintiffs did not even choose to put forth the details of the owner of the suit B schedule property i.e., in survey
No.20 of Kichamambapuram village through whose land he claims to have a right to use the same as a passage, let alone include such person as a party to the suit. Furthermore, the plaintiffs have not even sought for any declaration that they have a right to use the suit B schedule property as a passage, more so, when their purported right is in the nature of an easement, which is not recognized by any other piece of evidence save for
Exhibit A3. The nature of the right, as could be gleaned from the pleading that the plaintiffs have no other passage except the suit B schedule passage
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appears to be one of an easement by necessity, though the same is not specifically mentioned in the plaint.
67.In any case, when granting a mandatory injunction would have an effect of indirectly and impliedly recognizing the right of the plaintiffs or the easementary right of the plaintiffs to use the suit B schedule property as a passage, impleading the owner of the suit B schedule property as well praying for a relief of declaration of such a right should have been sought for. When the same has not happened, it only stands that the case of the
plaintiffs to the extent of the relief of a mandatory injunction is hit for
not seeking the relief of declaration as well as for not impleading the owner of the suit B schedule property, who happens to be a necessary party. As such, it becomes evident that the owners of the land in survey
No.20 of Kichamambapuram village are necessary parties to the suit. The inaction of the plaintiffs in impleading them is undoubtedly fatal to the case of the plaintiffs and consequentially renders the suit not maintainable.
The plaintiffs could have taken steps to implead such owners even after the
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defend raised such a plea. However, for reasons unknown or best known to the plaintiffs, they did not take any such steps.
68.Before parting, this Court would like to make an observation regarding the prayer portion in the plaint. Though the contents of the plaint mention that even a permanent injunction restraining the defendant from interfering with the possession of the plaintiffs over the suit A schedule property is sought for by the plaintiffs, still, the prayer portion i.e. the reliefs claimed do not mention anything about this permanent injunction.
The relief portion only mentions the declaration of the right of the plaintiffs over the suit A schedule property and a mandatory injunction directing the defendant to remove the fencing in the suit B schedule property and it is completely silent about this relief of a permanent injunction. However, when the plaintiffs have established their right and title over the suit A schedule property and when the defendant does not plead any right, title or interest or even possession over the suit A schedule property and when it appears that the defendant has nothing to do with the
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suit A schedule property, and when the plaint categorically mentions this relief of a permanent injunction, and when it is contented that the defendant intended to trespass into the suit A schedule property, the mere omission in the relief portion regarding this relief of permanent injunction cannot be a ground to reject such a relief, which has been pleaded twice in the plaint but not specifically mentioned in the relief portion.
69.In any case, since the defendant also does not appear to dispute the possession of the plaintiffs over the suit A schedule property, granting this consequential relief would not adversely affect the defendant also.
Further, the same would not go beyond the scope of pleadings or evidence adduced. Thus, to sum up, though the plaintiffs have been successful in establishing their right, title and even possession over the suit A schedule property as on the date of filing of the suit, still, when there is no substantive evidence on record to indicate that they have any right to use the suit B schedule property as a passage to reach the suit A schedule property and when the only document in this regard i.e. Exhibit A3 has
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been held to be unreliable, owing to the fact that it is ambiguous and vague and when the plaintiffs did not even choose to put forth the specific location of this passage which they intend to use through the suit B schedule property and more importantly, when the plaintiffs, did not even choose to have their right to use the suit B schedule property as a passage declared in the form of an easement or in the form of any other right, and when the owner of the property through whom the plaintiffs claim the right of passage is not shown as a party to the suit for reasons best known to the plaintiffs, the relief of a mandatory injunction as prayed by the plaintiffs cannot be granted for the reason that it would have the effect of impliedly declaring the right of the plaintiffs to use the suit B schedule property as a passage; a right that cannot be declared when no such declaration has been sought and more importantly, when the owner of such property in respect of which this right is claimed has not been made as a party to the suit.
70.In the present case, owing to the facts and circumstances, and more significantly, considering the fact that the right sought for appears to
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be easementary in nature, the plaintiffs ought to have sought for the relief of declaration of such a right and they ought to have made the owner of such a property as a party to the suit. When neither of these things has happened, it only stands that though the plaintiffs have been successful in establishing their right and title and possession over the suit A schedule property, no relief can be granted to them with regard to the suit B schedule property be it in the form of a mandatory injunction or otherwise.
As such, the plaintiffs are only entitled to be declared as the owners of the suit A schedule property and they are not entitled to any relief in connection with the suit B schedule property be it for the relief of a mandatory injunction or otherwise. Issue Nos.2 and 3 are answered against the plaintiffs and in favour of the defendant.
71. Issue No.4:
This Court holds that the plaintiff No.2 is entitled to be declared as the absolute owner of the suit A schedule property and that she is entitled to the consequential relief of a permanent injunction. This Court
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further holds that the plaintiff No.2 is not entitled to the relief of a mandatory injunction in connection with the suit B schedule property or to any other relief. Issue No.3 is answered in part in favour of the plaintiffs and in part against the plaintiffs.
72.In the result, the suit is decreed in part. The plaintiff No.2 is hereby declared as the absolute owner of the suit A schedule property. A permanent injunction is granted in favour of the plaintiff No.2 and against the defendant, restraining the defendant and his men from interfering with the peaceful possession and enjoyment of the plaintiff
No.2 over the suit A schedule property. The relief of a mandatory injunction directing the defendant to remove the barbed wire fencing blocking the usage of the suit B schedule property by the plaintiffs shall stand dismissed. The parties are directed to bear their own costs.
Typed by me in my laptop, corrected and pronounced by me in the Open Court, on this the 29 th day of April, 2026.
CIVIL JUDGE, (JUNIOR DIVISION)
RAJAMPET.
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Appendix of Evidence
Witnesses examined
For Plaintiffs:
PW-1 : Tallapaka Narasamma.
PW-2 : Guduru Rangaswamy Raju.
For Defendant:
DW-1 : Penigalapati Penchalaiah Naidu.
DW-2 : H. Sudharshan Reddy.
Exhibits marked
For Plaintiffs:
Ex.A1 : Registered sale deed dated 24-10-1987 in the name of Pitchaiah.
Ex.A2 : Pattadar passbook issued in the name of the plaintiff No.1.
Ex.A3 : Orders of the Tahsildar, Rajampet dated 29-11-2008.
Ex.A4 : Photographs along with the compact disc.
Ex.A5 : Plaint plan.
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For Defendant:
Ex.B1 : Market value certificate filed by the plaintiffs.
Ex.B2 : Certified copy of the plan of the Mandal surveyor.
Ex.B3 : Village sketch of Kichamambapuram village.
Ex.B4 : Certified copy of the report of the advocate commissioner.
Ex.B5 : Certified copy of the rough plan of the advocate commissioner.
Ex.B6 : Certified copy of notice and warrant of the advocate commissioner
C.J.(J.D.),
RAJAMPET.