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IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE,
SRIKAKULAM.
PRESENT:- SRI P.V. PRASADRAO,
PRINCIPAL SENIOR CIVIL JUDGE, SRIKAKULAM.
Wednesday, THE 27TH DAY OF MAY, 2020.
ORIGINAL SUIT No.441/2015
Between:
Sopinti Krishna Murty @ Krishna, S/o.late Suryanarayana, aged about 62 years, Hindu, Carpenter, presently residing in plot No.18, New colony, Srikurmam village, Gara Mandalam, Srikakulam District.
...Plaintiff.
And:
1. Sopinti Sarada, w/o.late Bhaskara Rao, aged about 40 years, Hindu, household duties, permanent resident of Voppangi village, Srikakulam Mandal and District, presently residing at plot No.17, New colony, Srikurmam village, Gara Mandalam, Srikakulam District.
2. Arasavalli Vijayakumari, W/o.Bhujanga Rao, aged about 23 years, Hindu, household duties resident Dr.No. Dharmana veedi of Voppangi village, Srikakulam Mandal and District.
.Defendants
This suit is coming on 06-02-2020 for final hearing before me in the presence of Sri Padda Paparao, Advocate for the plaintiff and of Sri T.Sivaprasada Rao, Advocate for the defendants 1 and 2 and the matter having been stood over till today for consideration, this court delivered the following:
JUDGMENT
1. This is a suit filed by the plaintiff against the defendants to declare that the plaintiff is the exclusive owner of the item No.1 of schedule property and to recovery of possession from the defendants and handover to the plaintiff and grant for permanent injunction restraining the defendants, her men and agents in any way interfering with the plaint item No.2 to 4 of schedule properties and for costs of the suit.
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2. The material averments of the plaint in brief are as follows:-
The plaintiff submits that the plaintiff and defendants are related to each other i.e., the 1st defendant is his late younger brother’s wife. 2nd defendant is the daughter of 1st defendant. The plaintiff is permanent resident of
Srikurmam village but both the defendants are resident of Voppangi village of
Srikakulam Mandal and Srikakulam District. The plaintiff and the husband of 1st defendant are the sons of Suryanarayana resident of Pusarlapadu village and the said Suryanarayana shifted his family around 50 years back lived there by doing carpenter work which is his caste profession. After the marriage, the plaintiff separated from joint family and he shifted his residence to Srikurmam village around 40 years back for his livelihood. Subsequently his younger brother namely Bhaskararao married the 1st defendant at Duvvupeta village around 24 years back, but the said Bhsakararao died after 1 year of his marriage, then the 1st defendant shifted her residence to her parent’s house which is situated in Voppangi village and she gave birth to 2nd defendant at
Voppangi village also. Both the defendants are resident of Voppangi village and 1st defendant is now getting widow pension at Voppangi village and the 2nd defendant was given in marriage to the brother of the 1st defendant who is also permanent resident of Voppangi village.
It is further averred in the plaint that the plaint schedule property is the exclusive property of the plaintiff i.e., item No.1 of the plaint schedule house patta plot o.17 covered by survey No.506/7 for an extent of Ac.0.03 cents was allotted by the Tahsildar to the plaintiff by way of house site patta on 10.10.1987 after allotment, the plaintiff constructed cement sheet roofed 3 portioned house and used to stay in the said house along with his married sons.
Further the plaintiff is being landless poor, the Government allotted D form 3 patta lands an extent of Ac.0.87 cents in survey No.2-63 IP and an extent of
Ac.0-36 cents in Survey No.262-28 in Srikurmam village which are shown as item No.s 2 and 3 by giving D form patta on 28.10.1979, further the plaintiff’s wife i.e., Damayanthi having streedana property at Amadalavalasa and sold the same, from that amount, the plaintiff purchased house site measured into East to West 12 feet, North to South 45 feet at Karnala street, New colony,
Srikurmam on 06.06.1992 under registered sale deed and constructed R.C.C.
slabbed house with door No.2-30 which is shown as item No.4 of the plaint schedule. The defendants are no way concerned with the plaint schedule properties and they having any right of the properties item No.1 to 4 of the properties thus the plaintiff is the exclusive owner of the item Nos.1 to 4 of the plaint schedule properties because the Government allotted item No. 1 to 3 properties to him after his separation from the joint family, further the father of the plaintiff not acquired any properties in his life time, and he used to stay in a rented house and the plaintiff not get any right from his father.
It is further averred in the plaint that the defendants with dishonest intention and to harass the plaintiff, they tried to interfere into the schedule properties even though they are not having any right in the schedule properties, but the defendants forcibly entered into the item No.1 of the schedule properties by implicating the plaintiff in a false case when the plaintiff was in jail in the month of April, 2013 by influencing the police and leaders who are having inimical contacts with the plaintiff in the village. Further the defendants are trying to interfering into the peaceful possession and enjoyment of the plaintiff. The Properties item Nos.2 to 4 with the help of their henchmen, even the defendants are not having any right over the properties,
The plaintiff who is having exclusive title, possession and enjoyment over the 4 plaint schedule properties 2 to 4 and the defendants are no way concerned item
No.1 of plaint schedule house but forcibly entered into the property, when the plaintiff was in jail, the plaintiff is entitled for declaration and recovery of possession over the item No.1 of house property by dispossessing the defendants and the plaintiff is entitled for permanent injunction, restraining the defendants from ever interfering into the item Nos.2 to 4 of plaint schedule properties. Hence the suit.
3. On the other hand the 1st defendant filed her written statement and adopting the written statement of 1st defendant on memo filed by the 2nd, defendant by denying the material averments in the plaint except admitting the relationship with the plaintiff. The plaintiff is the elder brother of late
Bhaskara Rao who is the husband of 1st defendant and father of the 2nd defendant and the husband of 1st defendant and plaintiff and all the family members are residing in the plaint schedule property house and enjoying the same jointly and the remaining plaint schedule properties also. After the marriage of 1st defendant with the Bhaskararao she be got male child but he was died at the time of delivery, subsequently, the 1st defendant begot another child on 07.08.1989 i.e, 2nd defendant Vijayakumari and at the age of two years of the 2nd defendant, the 1st defendant husband died on 14.08.1991. After the death her husband, the plaintiff and his family members not provide food and clothes to this defendant, then she raised dispute before the elders, whenever the elders interfered, the plaintiff promise to look after the defendants properly, but the plaintiff harass the defendant without any valid reason and grab the ancestral properties and the defendants not tolerated the harassment of the plaintiff, ultimately in the month of July, 2005 again she raised dispute before the elders namely Uppada Laxmayya Surpanch, Baratam Nageswararao, Kaibada Raju 5
MPTC, Korada Venkatarao, A.Nagaraju, Dharmana Kumar, Seepana Tata,
Guruvilli Yerrayya, Bora Venkatarao, Gondu Kannababu, Chukka Thammayya etc., When the elders advise the plaintiff to settle the ancestral properties and allot item No.1 of plaint schedule property and some other properties mentioned in the plaint schedule properties, since 19.07.2005 the defendants are in possession and enjoyment the properties according to the settlement deed.
Further the defendant contended that in the year 2006 the plaintiff filed suit against this defendant and his brother before Principal Junior Civil Judge,
Srikakulam in O.S.No.392/2005 and the suit was dismissed on 08.06.2011.
Further the plaintiff sister Arasavalli Naaratnam, Arasavali Bhadram filed suit against this defendant one Arasavalli Venkatarao, Arasvalli Bhujangarao and the plaintiff before the Principal Junior Civil Judge, Srikakulam in
O.S.No.396/2005 and the same also dismissed on 31.05.2011 as thus the
plaintiff harassing the defendants time to time and created stories by filing the false suits without preferring appeal against the judgment and decree passed in
O.S.392/2005.
The defendants further contended that the plaintiff harass the defendant, attacked and try to kill this defendant, then this defendant gave report against the plaintiff to the Gara Police Station, then the SI of Police
Gara PS. Registered a case in Cr.No.30/2013 for the offence under section 307 of IPC against the plaintiff and filed case, same was numbered as S.C.67/2014 filed by the Additional Assistant Sessions Judge Srikakulam and the Hon’ble court after full trial found guilty and passes sentence against the plaintiff and convicted Rigorous imprisonment for a period of five years and shall also pay fine of Rs.1000/- in default of payment of fine, the plaintiff is sentenced to undergo Simple Imprisonment for a period of three months. The defendants 6 further contended that the plaintiff trespassed into one of the plaint schedule property and her other properties whenever she obstructed the illegal acts of the plaintiff, the plaintiff try to kill her and try to occupy the properties of defendants, thus the plaintiff harass the defendant time to time and grab her properties, the defendant obstructs his acts, the plaintiff bore grudge against her, the plaintiff filed this suit against the defendants for recovery of 1 to 4 schedule properties without having any right over the properties, this defendant paying the house tax to the Gram Panchayat since 2006 till date and having possession over the property and the properties according to settlement deed
dated 19.07.2005 and other properties hence the defendants prays the court to
dismiss the suit with costs.
4). Basing the above pleadings, the following issues are settled for trial:
1. Whether the plaintiff has got right, title and possession over the suit schedule properties?
2. Whether the plaintiff is entitled for declaration that he is exclusive owner of item Nos.1 to 4 of the plaint schedule properties?
3. Whether the plaintiff is entitled for recovery of possession in respect of item No.1 of plaint schedule property from the defendants?
4. Whether the plaintiff is entitled for permanent injunction as prayed for?
5. To What relief?
05). During the course of trial, on behalf of plaintiff, plaintiff examined as PW1 and got examined one Arasavalli Bhadram as PW.2 on his side and got marked Exs. A1 to A5 documents. On behalf of the defendants, the 1st defendant examined as DW1 and she got examined Dasumahanthi
Madhaveswaraarao, Korada Venkata Rao, Kaibada Raju examined as
Dws.2 to 4 and got marked Ex.B1 to Ex.B3.
7 06). Heard both sides.
The plaintiff contended that he is absolute owner of the plaint schedule properties having right and title over the properties and also having possession over the item Nos.2 to 4 of the plaint schedule properties, but the 1st defendant having any possession of item No.1 of plaint schedule property without having any right and title her ownership, even the property was given to the plaintiff by the Government under Ex.A2 house site patta plot No.17 in survey No.506/7 on 10.10.1987. When he was in jail, the 1st defendant occupied the item No.1 of the plaint schedule property for which he asked for recovery of possession from the 1st defendant in respect of item No.1 of property and further 1st defendant trying to interfere into the item No.2 to 4 of plaint schedule properties of the plaintiff, the defendant must be prevented from her acts by granting permanent injunction in favour of the plaintiff against the defendant for the item No. 2 to 4 of plaint schedule properties, as he is having right and title over the properties to the Ex.A1 original Pattadar pass book and bunch of Ex.A5 land tax receipts inrespect of item Nos.2 and 3,
Ex.A3 Original sale deed dated 06.06.1992 and Ex.A4 bench of House Tax receipts in respect of item No.4 of the plaint schedule property.
07). On the other hand the defendants contended that the plant schedule properties are joint family properties of the defendants along with plaintiff having joint possession over the schedule properties, after the death of husband of 1st defendant, the plaintiff necked out her to grab the properties even she resides in item No.1 of plaint schedule house along with the plaintiff, as the plaintiff failed to recovery of possession of item No.1 of plaint schedule properties by admitting of possession and as well as agree to give item No.1 of plaint schedule house and Ac.0.20 cents of land in the presence of elders by 8
Ex.B1 settlement deed dated 19.07.2005, the 1st defendant has right in item
No.1 of plaint schedule house and also Ac.0.20 cent of land, and he is not entitled for permanent injunction in respect of item No.2 to 4 properties as not having D-form patta for item No.2 and 3 properties.
08). Admitted facts are :-
D1 is the wife of younger brother of plaintiff. D2 is the daughter of D1. Originally the father of the plaintiff Sopinti Suryanarayana resident of Pusarlapadu village and he shifted his family to Duvvupeta for eking his livelihood about 50 years back and doing his caste profession ie., carpentry work as the defendant also admitted in her written statement that the
Suryanarayana shifted family from Pusarlapadu village to Duvvupeta village and further admitted fact is the Voppangi village is the parental village of 1st defendant who is the none other than the daughter of one of the sister of plaintiff that the plaintiff have been 3 sisters. Further admitted fact that after the marriage, 1st defendant be got male child and died at the time of delivery and subsequently 2nd defendant born to the 1st defendant, her husband died at the age of two years of the 2nd defendant.
09).Further admitted facts that the item No.1 of the plaint schedule property was in possession and enjoyment of the 1st defendant as the plaintiff and his brother Bhaskara Rao (husband of 1st defendant and father of 2nd defendant) and their father Suryanarayana lived in the village Duvvupeta for doing carpentry profession as the plaintiff admitted that in the plaint that item No.1 of the house property was in the possession of 1st defendant and for which he asked recovery of possession of item No.1 of the property, the 1st defendant without having any right and title. Here the disputed facts are whether the plaintiff is having right and title over the plaint schedule properties 9 and entitled for recover of possession from the 1st defendant in respect of item
No.1 of plaint scheduled property and entitled ask for permanent injunction against the 1st defendant in respect of item No.2 to 4 and defendant trying to interfere into the possession of the plaintiff.
10). ISSUE NOs.1 and 2:As per thecontention of the plaintiff, he is absolute owner of the plaint schedule properties having right and title over the properties. Whereas the defendant contended that those properties are joint family properties as the father of the plaintiff and husband of 1st defendant lived jointly in Duvvupeta village in the plaint schedule house. The plaintiff acquired the properties 2 to 4 out of joint family funds.
11). Though the plaintiff contended that his father not acquired any properties, which denied by the defendant and the schedule properties are self acquired properties. Admittedly there is no evidence on record to show that the properties are self acquired properties of Suryanrayana father of the plaintiff and father in law of 1st defendant.
12). When the plaintiff is having right title over the item No. 1 to 4 of the schedule properties, it is for him to prove his title over the schedule properties in respect of item No.1 of schedule properties. In order to prove his owner ship the plaintiff, he filed Ex.A2 house site patta for an extent of Ac.0.03 cents issued by Tahsildar, Srikakulam. Basing on the Ex.A2 the plaintiff claimed right and title in respect of item No.1 of property. As per his contention, the said patta was issued on 10.10.1987. But whereas there is no date of issuance on the patta and further the plaintiff show the boundaries in the plaint schedule of time No.1 of schedule property, but on Ex.A2 did not discloses the boundaries of house site as well as measurements or extents of
Ac.0-03 cents on house site patta.Mere marking of Ex.A2 house site patta is 10 not sufficient to prove the title and ownership of the plaintiff without proving its contention of the patta. In order to prove the contention of the issuing of patta, the plaintiff ought to have examined the then Tahsildar or revenue people regarding issuance of patta to the beneficiary and its genuinity. But here the plaintiff not choose to examine any of the revenue official to prove Ex.A2 issued in his favour Ac.0-03 cents of house site patta in Survey No.506/7 for the plot No.17.
13). No doubt patta discloses that the plot No.17 and survey
No.506/7 and no other details are there in the patta, it shows that it was issued in the name of the plaintiff S/o.Suryanarayana. The plaintiff admitted in the cross examination that Ex.A2 not discloses the date of issuance of Tahsildar, boundaries to the properties as well as measurements of the extent of Ac.0.03 cents of house site.
14). It is the contention of the defendant that Ac.0.03 cents of house site is the joint family property and the Ex.A2 patta filed by the plaintiff is created document for the purpose of this case. Since her marriage she along with her husband Bhaskararao, plaintiff and her father in law residing in the said Ac.0.03 cents site where 3 portioned roofed house is there i.e., asbestos sheets. Since her marriage the said house was in her possession.
15). It is the contention of the plaintiff that when he was in jail in the month of April, 2013, the case filed by the D1 under section 307 of IPC, the 1st defendant entered into the item No.1 of schedule 3 portioned cement roofed house, with the assistance of one Busi Ramesh and her henchmen having inimical terms to the plaintiff. But the defendant admitted in the cross examination that the defendant residing in the said house from the last 5 years by evicting her from the house. Therefore as per the case of the plaintiff and the 11 case of the defendant, the 1st defendant was in possession of item No.1 of plaint schedule property. But her dispute is whether she was in possession by forcibly entered in the absence of the plaintiff when he was in jail or with his knowledge D1 entered in item No.1 of plaint schedule house.
16). It is the contention of the 1st defendant that she was residing in the schedule house since her marriage and when Plaintiff trying to evict him by attempt to commit murder on her, she filed case u/s.307 of IPC in Gara
Police Station and after full pledged trial Additional Senior Civil Judge,
Srikakulam convicted him for which she filed Xerox copy of Judgment as the plaintiff admitted that he was convicted in 307 of IPC. There is no dispute regarding his sentence passed by the Additional senior Civil Judge, Srikakulam u/s.307 of IPC the case filed by the 1st defendant.
17). Further the 1st defendant was in possession of plaint schedule house property, the plaintiff filed suit against 1st defendant and one
Arasavalli Venkata Rao, and one Arasavalli Bhujanga Rao, in O.S.No.392/2005 on the file of Principal Junior Civil Judge’s Court, Srikakulam and the suit was dismissed for default without mentioning the same fact in the plaint the plaintiff filed this suit for which she filed Ex.B2 certified copy of decree and Judgment in O.S.No.392/2005. On perusal of Ex.B2, the plaintiff filed this suit against 1st defendant and two other persons the same was dismissed for default after giving several opportunities given by the court and on perusal of the record, the same fact was not mentioned by the plaintiff in the plaint.
18).Further the 1st defendant contended that the plaintiff also got filed the suit in O.S.No.396/2005 through his sister Arasavalli Nagaratnam and her son Arasavalli Bhadram against the above cited persons Arasavalli Venkata
Rao, Arasavalli Bhujanga Rao, 1st defendant and the plaintiff the same was also 12 dismissed by the Hon’ble Court, in support of his contention she filed Ex.B3
Certified copy of decree and Judgment. On perusal of Ex.B3 document
Arasavalli Nagaratnam who is sister of plaintiff and her son Arasavalli Bhadram filed suit against Arasavalli Venkata Rao, Arasavalli Bhujanga Rao, 1st defendant and the plaintiff and the same was dismissed. The same fact was not mentioned by the plaintiff in the plaint.
19). As per the admissions made by the PW.2 i.e., Arasavalli
Bhadram who is the son-in-law as well as nephew of plaintiff admitted that he himself and his mother filed suit against D1, plaintiff and two others for the item No.1 of house schedule property as default to him and the said suit was dismissed for default. Considering the Ex.B2 and Ex.B3 certified copy of the
Decree and Judgment and as per the contention of the 1st defendant it is crystal-clear that the plaintiff failed to mention about previous litigations inrespect of item No.1 of schedule property and neighboring houses of item
No.1 of plaint schedule property in between his sister and defendant. Therefore it is clear that he intentionally not mentioned about the previous suits filed by him and his sister though they were dismissed for default. There is no record that either the plaintiff or his sister preferred any set aside petition for restoration of suits or preferred any appeal before appellate court. Here PW.1 admitted in the cross examination that either he himself or his sister did not prefer any application before trial court for restoration of those suits. The defendant contended that because item No.1 plaint schedule property was in her possession, the plaintiff not prosecute the suits 392/2005, 396/2005.
20). It is further contention of the 1st defendant that she is having right over the property in item No.1 by virtue of Ex.B1 settlement deed dated 19.07.2005 executed by the plaintiff in her favour settling the properties item 13
No.1 to 4 and the plaintiff agreeing to give item No.1 of schedule property as well as Ac.0.20 cents of wet land to the defendant. The defendant filed Ex.B1 settlement deed dated 19.07.2005 and also elicited from the PW.1 during his cross examination that PW.1 executed Ex.B1 settlement deed because PW.1 admitted in the cross examination that the signature on the settlement deed belongs to him and he signed on the document in the presence of elders. But he contended that the elders in the panchayat obtained his signature by using force upon him, but not obtained signature without coercion.
21). When the plaintiff ascertain the fact that the elders obtained signature on Ex.B1 by using force by him. It is for him to establish the same fact, except his oral testimony and the oral evidence and his son in law as well as nephew namely Arasavalli Bhadram who examined as PW.2. But there is no proof of evidence to say that the elders obtained his signature on the Ex.B1 though he is not willing to sign on Ex.B1. If really the elders obtained his signature on the Ex.B1, he ought to have issued legal notice either to the D1 or to the elders or to file report to the police against D1 as well as elders of the panchyayat are else or direct file the suit against defendant for cancellation of settlement deed.
22). Admittedly, the plaintiff did not do so, it implies that he willfully signed on the Ex.B1 by agreeing to give item No.1 of plaint schedule house as well Ac.0-20 cents of land to the 1st defendant who is none other than his younger sister-in-law. Further PW.2 also stated in his cross examination that the elders obtained his signature as witness on the Ex.B1, though he gave report police against the elders who obtained signature on Ex.B1 but Gara
Police not taken any action against the defendant or others. That is so, what made prevented in to file the case and issued legal notice against 1st defendant 14 or others. Non issuing of legal notice or non-filing of case indicates that the contention raised by the plaintiff or PW.2 that the elders obtained signature forcibly is untenable because he admitted in the cross examination that “It is
true the disputes arose between plaintiff and 1 st defendant and the disputes
settled before the elders and compromised the matter.” Further admitted that “It is true I signed on the compromise deed as 13 th witness Ex.B1, their
surpanch Uppada Lakshmanna, MPTC Baratam Nageswararao and
another MPTC Kaipada raju, Ex-surpanch Korada Venkata Rao,
Dharmana Kumar and others signed on the compromise deed”. PW.2 further admitted thatthe 1st defendant used paying the house taxes to the
Srikurmam panchayat in it she is residing.
23). From these admissions though the plaintiff denied that he is not signed on the Ex.B1 with free consent. The contention raised by the plaintiff that the elders obtained his signature on Ex.B1 in force is untenable why because the defendant examined scribe of the document Ex.B1 namely
Dsumahanthi Madhaveswararao as DW.2. who deposed in the evidence that in the month of July, 2005 the disputes arose between the plaintiff and defendant in the presence of elders viz., Uppada Laxmayya Surpanch, Baratam
Nageswararao, Kaibada Raju MPTC, Korada Venkatarao, A.Nagaraju,
Dharmana Kumar, Seepana Tata, Guruvilli Yerrayya, Bora Venkatarao, Gondu
Kannababu, Chukka Thammayya etc., on the advise of elders, the plaintiff settled the ancestral property by allotting the item No.1 of plaint schedule property and some other properties mentioned in the plaint schedule property to the 1st defendant since 19.7.2005 the defendants are in possession and enjoyment of the item No.1 of plaint schedule property as well as other 15 properties by virtue of Ex.B1 settlement deed and he scribed the settlement deed.
24). Besides her evidence the 1st defendant examined the attestors
Korada Venkatarao, Ex-MPTC and Kaibada Raju, Ex-MPTC as DWs.3 and 4.
Both the witnesses categorically stated in their evidence that the matter settled
before them and other above elders and they signed on Ex.B1 settlement deed
dated 19.07.2005 as attestors, when DW.2 scribed the document and plaintiff
agreed to give item No.1 of plaint schedule property and some other properties.
DWs.2 to 4 are not the relatives or friends to the 1st defendant. Though the plaintiff cross examined DWs.2 to 4 to elicit the elders obtained his signature on force, but he could not elicit any material from the witness in support of his contention. Though the plaintiff could able to elicit evidence from the DW.2 that Busi Ramesh who is having political influence in TDP party and having dispute with the plaintiff regarding rental but he denied the suggestion that the said Busi Ramesh instigated the defendant to enter into the item No.1 of plaint schedule house property when the plaintiff was in the jail in the criminal cases.
Mere because the disputes arose between the Busi Ramesh and plaintiff even
Busi Ramesh instigated the D1 to enter into the item No.1 of plaint house schedule property, the defendant ought not entered into the house, if she is not right.
25). Further there is no evidence on record that the Busi Ramesh is behind the litigation in entering D1 into the plaint schedule house property, when plaintiff is in jail. Admittedly the plaintiff was in possession and enjoyment of the plaint schedule property since 2005. Whereas the case filed against the plaintiff in the year 2013 and even as per the case of the plaintiff D1 entered into the schedule property in the year 2013. Therefore, his contention is 16 not tenable as it is for the evidence of witnesses and the suits filed by the plaintiff in the year 2005 and against the plaintiff for permanent injunction in
O.S.No.396/2005, it is crystal-clear to D1 not forcibly entered into item No.1 of
plaint schedule property in the year 2013 in the absence of plaintiff. Therefore, the plaintiff failed to prove his contention, because on perusal of Ex.B1 which is disclosed by the said plaintiff that the plaintiff agreed to give item No.1 of schedule property and Ac.0-20 cents of land out of Ac.1-20 cents of land, nearly 16 persons signed on the document scribed by the DW.2 Dasumahanthi
Madheswararao and even as per the document the settlement deed should be in the possession of 1st defendant and the copy in the possession of plaintiff.
26). Though the plaintiff signed on the Ex.B1 either force or consent further it is valid or not valid he ought to have mentioned in the plaint about the settlement deed. But the plaintiff nowhere stated either in the plaint or in his chief evidence about settlement between the plaintiff and defendant even it is assigned that his signature on Ex.B1, the elders by force not mentioned of fact of settlement deed between the plaintiff and defendant is defeat the contention of the plaintiff. In overall consideration the evidence of PW.1 and DW.1 and
Ex.B1 that the plaintiff agreed to give item No.1 of plaint schedule property and
Ac.0-20 cents land to the 1st defendant by using his right over the property.
Once he signed on the document Ex.B1 it is for him to prove that his signature obtained by force, but except the oral evidence of PW.1 and PW.2 there is no such evidence there on his side to prove that his signature obtained by coercion.
Then it indicates that he agreed in the settlement before the elders to give item
No.1 of plaint schedule house property and Ac.0-20 cents of the land to the defendant and once he give the properties under EX.B1 to the defendant he cannot denied the same and he cannot blow hot and cool at a time.
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As per the 15 of Indian Contract Act, “Coercion” defined.—“Coercion” is the committing, or threatening to commit, any act forbidden by the Indian
Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.
27). In this regard, the plaintiff has to prove that the elders forced into signed on Ex.B1 settlement deed, then the burden lies on him, but he failed to prove that the elders obtained his signature on Ex.B1 on force, but not through consent. Therefore the contention raised by the plaintiff is not tenable.
Therefore, the plaintiff is not entitled right over the item No.1 of plaint schedule property as the defendant having right over the item No.1 of plaint schedule house property by virtue of Ex.B1 that the defendant proved her right over the item No.1 of house schedule property.
28). Regarding right and title over the plaint schedule item No.2 and 3 properties, the plaintiff filed Ex.A1 pattadar pass book and Ex.A5 bunch of land tax receipts besides his oral evidence and no other documents is filed by the plaintiff. It is the contention of the plaintiff that the Government issued D- form patta land for an extent of Ac.0-87 cents in survey No.263/1p and Ac.0-36 cents of land in survey No.262-28 situated at Sreekurmam village of Gara
Mandal on 28.10.1978 i.e., item No.2 and 3 of plaint schedule property. But the plaintiff in order to establish the title the plaintiff did not filed D-form patta in respect of Ac.0-87 cents and Ac.36 cents.
29). Even the defendant contended that those properties are ancestral properties of plaintiff and husband of D1. When the plaintiff claiming right and title over the plaint schedule item Nos.2 and 3 properties, he has to prove his title mere filing the pattadar pass book without filing D-form patta in respect of 18 item No.2 and 3 of plaint schedule properties. The plaintiff cannot claim the right and title over item No.2 and 3 of plaint schedule property except Ex.B1 pattadar pass book and Ex.B5 bunch of land tax receipt besides the oral evidence of PW.1 and PW.2. Absolutely there is no oral or documentary evidence to prove the right and title of plaintiff over item No.2 and 3 of plaint schedule, though it is not the point of consideration for permanent injunction.
But the title of the plaintiff is incidentally looked into. Here the plaintiff failed to establish his right and title over the item No.2 and 3 of plaint schedule properties.
30).It is the contention of the plaintiff that he is having Ac.0-87 cents in survey No.263/1p and Ac.0-36 cents of land in survey No.262-28 situated at Srikurmam village of Gara Mandal as per the plaint schedule.
Whereas Ex.A1 pattadar pass book shows that the plaintiff having possession
Ac.0.57 cents in survey No.325-1p and Ac.0-87 cents in survey No.263-1p and
Ac.0-36 cents in survey No.262-28 in total Ac.1-80 cents. Except survey
No.263-1p in respect of Ac.0-36 cents the other extent and survey numbers are not tallied with the plaint schedule as well as contention of the plaintiff.
31). As per the contention of the plaintiff he is having Ac.1-23 cents of land. But whereas pass book shows that he is having Ac.1-80 cents of land. Therefore there is a difference of extent of Ac.0-57 cents. Though the plaintiff mentioned boundaries item Nos. 2 and 3 in the plaint schedule, but the plaintiff unable to say the boundaries item Nos.2 and 3 in his chief affidavit or in his cross examination. Therefore, no explanation from the plaintiff about the differences of the land in between the plaint schedule as well as in the pattadar pass book. The plaintiff who have the claim of title over the plaint schedule property, ought to have filed D.form patta in respect of item No.2 and 19 3 of schedule properties, or atleast examined the revenue officials regarding the title of plaintiff over the item Nos.2 and 3 of schedule but the plaintiff failed to- do to prove his title.
32). Regarding the item No.4 of plaint schedule property the plaintiff contended that he is absolute owner of the item No.4 of plaint schedule property as he purchased the said property from one Nallamanti Appalasuri with the sale proceeds and after selling the streedhana properties of his wife. As per the contention of the plaintiff that he purchased the house site measuring East to
West 12 feet and North to South 45 feet situated at Karnala street Srikurmam village on 06.06.1992.
33). Though the defendant denied the title in respect of item No.4 of plaint schedule by claiming that it is ancestral property of plaintiff and his brother. But the Ex.A3 registered sale deed clearly shows that the plaintiff purchased the properties from one Nallamanti Appalasuri on 06.06.1992 wherein he constructed RCC slabbed house and also filed Ex.A4 bunch of house tax receipts. Mere denial of the plaintiff item No.4 of plaintiff, D1 did not file any documents or evidence to rebut the contention of the plaintiff that she was the absolute owner of item No.4 of plaint schedule. Though the defendant cross examined PW.1 at length to disprove the title of the plaintiff item No.4 she could not elicit any material from him except giving suggestions that the item No.4 of plaint schedule property also ancestral property of father of the plaintiff which is denied by the witness.
34). The defendant though contended that if really wife of plaintiff sold her streedhana property and purchased item No.4 of the property, he should be purchased the name of Damayanthi but not her husband (Plaintiff).
But there is no strict rule when streedhana property sold away, if any property 20 purchased from the streedhana property, it should be purchased in her name, or her husband name it is their own choice of the spouse can purchase either of the choice even they sold streedhana property. Therefore, the contention raised by the defendant is not tenable. When Ex.A3 registered sale deed clearly shows that the plaintiff is the absolute owner of item No.4 of plaint schedule besides his evidence and no evidence from the defendant we can safely concluded that the plaintiff is the absolute owner of item No.4 of plaint schedule having right, title over the item No.4 of plaint schedule property. In view of the above discussion, the plaintiff proved his right title over the itemNo.4 of the plaintiff schedule, but failed to prove his right and title over the item No.1 to 3 of plaint schedule properties. These issues are answered accordingly.
35). Issue No.3:- In view of the discussion in issue Nos.1 and 2 the plaintiff failed to prove his right and title over item No.1 of plaint schedule property and further the defendant establish that she is having right over the property by virtue of Ex.B1 document executed by the plaintiff and also proved his possession over the property since 2005 and the same is admitted by the plaintiff during the cross examination that Uppada Laxmayya, Baratam
Nageswararao, K.Venkatarao, K.Raju, A.Nagarao, B.Kumar and others signed on the Ex.B1 settlement deed. Admittedly on the Ex.B1 all the above said persons and other persons signed on the Ex.B1. Therefore, the 1st defendant was in possession and enjoyment over the item No.1 plaint schedule house property since 2005, but not forcibly enter into the plaint schedule house property in the year 2013 when the plaintiff was in jail.
36). When the plaintiff failed to prove his title over the item No.1 of plain schedule house property as discussed in issue Nos.1 and 2 is not entitled 21 for recovery of possession of item No.1 of plaint schedule property from the 1st defendant. Therefore, this issue is decided against the plaintiff in favour of the defendant as the possession of defendant is lawful possession.
37). Issue No.4:- As per the contention of the plaintiff that he is possession over the item No.2 to 4 even then the defendant without right title over the possession trying to interfere into his peaceful possession of the plaintiff, when the plaintiff asked permanent injunction against the defendant in respect of item
Nos.2 to 4 of properties claiming that she is trying to interfere into his peaceful procession.
38). The plaintiff has to prove his possession over the plaint 2 to 4 plaint schedule by the date of filing of this suit. Though he is claiming over the item No.2 and 3 of the properties except his oral evidence that he was in possession of item No.2 and 3 of properties, he did not file any proof of document like Adangal Pahani or any revenue records to show his possession over the item No.s 2 and 3 of plaint schedule properties. Further he failed to examine any revenue official to prove his possession by showing cultivation accounts that item No.2 and 3 in his possession, mere filing pattadar pass book and tax receipts besides his oral evidence does not suffices his contention that item No.2 and 3 of plaint schedule was in possession by the date of filing this suit. Except his oral evidence and his son in law, there is no evidence to see the possession of the plaintiff over the item No.2 and 3 by the date of fling of the suit.
39). Unless and until the plaintiff proved his possession over the item Nos 2 and 3 of plaint schedule property by the date of filing of the suit with relevant documents like adangal pahanies or cultivation accounts or reliable evidence of revenue officials or neighboring land owners of the item 22
No.2 and 3 of the plaint schedule. Admittedly, the plaintiff did not examine the neighbouring land owners of the item nos.2 and 3 of the plaint schedule and not filed any documents like Adangal pahanies because, the plaintiff is interesting party and PW.2 being son in law of PW.1 is also interesting party, their evidence cannot believable without support of documents like Adangal pahanies and corroboration evidence of neighbouring land owners of the item No.2 and 3 of plaint schedule properties. Since the plaintiff failed to examine the neighbouring land owners and failed to file Adangal pahanies to his possession over the property of item No.2 and 3, therefore he cannot entitled for permanent injunction against the defendants in respect of item No.2 and 3 of plaint schedule.
40). The plaintiff proved his title over item No.4 of plaint schedule through Ex.A3 registered sale deed and coupled with evidence of plaintiff supported by the evidence of his son in law as PW.2. Ex.A3 and Ex.A4 bunch of house tax receipts proves the possession over the item No.4 of plaint schedule as the defendant did not rebut the contention of the plaintiff and Ex.A3 document right possession falls title. Therefore the plaintiff having possession over the title and possession over the item no.4 of plaint schedule and he is entitled for permanent injunction against the defendants in respect of item No.4 of plaint schedule property only. Hence, this issue is answered accordingly.
15. ISSUE NO.5: In the result, the suit is decreed partly without costs granting permanent injunction in favour of the plaintiff against the defendants in respect of itemNo.4 of plaint schedule property only, directing the defendants not to interfere into the peaceful possession of the plaintiff in respect of item
No.4 of plaint schedule property only and the rest of the claim of the plaintiff i.e., declaration and title and recovery of possession of item No.1 of schedule 23 house property from the defendant and permanent injunction in favour of the plaintiff against the defendants, in respect of item No.2 and 3 schedule properties is dismissed.
Dictated to the typist, typed by him, corrected and pronounced by
me in open court, this the 27th day of May 2020.
PRINCIPAL SENIOR CIVIL JUDGE,
SRIKAKULAM.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff: For Defendants:
PW.1: Sopinti Krishna Murthy DW.1:Sointi Sarada PW.2: Arasavalli Bhadram DW.2:Dasumahanthi Madhaveswararao DW.3: Korada Venkatarao Dw.4: Kaibada Raju
DOCUMENTS MARKED
For Plaintiff:
Ex.A1/Original pattadar pass book for patta lands in suvey No.263/1 for an extent of Ac.0-87 cents and survey No.263/28 for an extent of Ac.0.36 cents.
Ex.A2/Original patta for the house plot No.17 in survy no.506/7 issued by the then tahsildar, Srikakulam in his favour
Ex.A3/Original sale deed datd 06.06.1992 executed by the Nallamanti Appalasuri in his favour
Ex.A4/bunch of house tax receipts
Ex.A5/bunch of land tax receipts
FOR DEFENDANTS:
Ex.B1: Settlement deed dated 19.07.2005
Ex.B2: Certified copy of the decree and Judgment in O.S.No.192/2005 of
Principal Junior Civil Judge, Srikakulam.
Ex.B3: Certified copy of decree and judgment in O.S.No.396/2005 of Principal Junior Civil Judge, Srikakulam.
PRINCIPAL SENIOR CIVIL JUDGE,
SRIKAKULAM.