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IN THE COURT OF THE SENIOR CIVIL JUDGE :: AT
NAGARKURNOOL
On Friday, this the 20th day of July, 2018
Present:- SRI P. VASANTH,
Senior Civil Judge,
Nagarkurnool.
OS.No.101 of 2012
Between:-
1. Kathey B. Gopala Kishan s/o Bal Kishan, age : 68yrs
2. Kathey B. Srikishan s/o K. Bala Kishan, age : 62yrs
3. Kathey Radha Kishan s/o K. Bala Kishan, age : 59yrs
4. Lingamurthy s/o K. Bala Kishan, age : 52yrs
All Occ : Rtd. Employees, r/o Bijinapally proper.
...Plaintiffs
And
K. B. Nirmala Devi w/o Laxmana, age : 55yrs, Occ : Govt. Employee, r/o Bijinapally proper.
...Defendant
-0o0-
This suit came up before me for hearing on 19.07.2018 for disposal in the presence of Sri. B. Raja Shekar, M. Narsimha Reddy and M. Krishna, Advocates for the plaintiffs and Sri. K. Ravikanth Rao,
Advocate for the defendant and the matter having stood over for determination till this day, the court delivered the following:-
JUDGMENT
1.This suit is for permanent injunction filed by plaintiff No.1 to 4 against the sole defendant to grant permanent injunction restraining the defendant and her yesmen from interfering with the plaint schedule land in Sy.No.287 Adm.31 guntas situated at Bijinepally.
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2.The material averments in the plaint are as follows :
The plaintiffs and defendant are the children of one K.
Balakishan and they are members of Undivided Hindu Joint Family and all of them are retired Government employees. After the demise of their father, the plaintiffs got mutated their names in revenue records in respect of Sy.No.287 Adm.31 guntas and they have been in continuous possession ever since. The defendant was married long ago by paying appropriate dowry. Since the value of suit land, which is abutting the village, has rapidly escalated, the defendant with malafide intention to occupy the suit land, came with anti-social elements on 02.06.2012 and tried to trespass into the suit land but the plaintiffs could protect their possession with the help of neighbours. Hence, the suit.
3.The defendant filed W.S. with the following averments :
The defendant is the absolute owner and possessor of the land in Sy.No.287 /A admeasuring 11 guntas; Sy.No.287/E admeasuring 13 guntas; Sy.No.284/UU admeasuring 26 ½ guntas thereby total land of 50 ½ guntas including the suit land. Originally her father purchased 54 guntas in his name and 8 guntas in the name of his wife (mother of defendant) under registered sale deed dated 18.04.1981. Hence, it is self acquired property of her father and it was declared so in judgment and decree dated 08.05.2000 in OS.No.39/1993 filed by plaintiff No.4 against her father, mother, defendant herein and other brothers for partition and the same was dismissed holding that it was self acquired property of father of the parties. Her father gifted totally 45 guntas to his wife under registered gift deed dated 23.10.1992 which was 3 of 16 attested by plaintiff No.3 herein. He father gifted 5 guntas each to her two brothers under registered gift deed dated 18.06.1991 and he further partitioned the property under registered partition deed dated 20.01.1992 and raised houses. While so, her mother gifted totally 23 guntas under registered gift deed dated 09.10.2003 in her favour and subsequently her mother gifted 20 guntas under registered gift deed
dated 22.01.2004 and 6 ½ guntas under registered gift deed dated
10.10.2003. Thus, the total extent of land gifted by her mother to defendant is 50 ½ guntas under registered gift deeds and the suit land is part and parcel of one of such items. Ever since the defendant has been in continuous possession and enjoyment of the lands including the suit land. Her mother filed OS.No.76/2002 against defendant No.1 for declaration and injunction for 52 guntas and the same was decreed on 29.01.2009. During the pendency of such suit, her mother executed gift deeds in her favour and delivered the possession of the lands. The
Tahsildar incorporated her name to an extent of 31 guntas instead of 50 ½ guntas by mistake. The records of Tahsil office were destroyed in fire accident and taking advantage thereof, the plaintiffs got mutated their names for 31 guntas only whereupon she made an application to
R.D.O. and upon whose instructions the M.R.O. caused enquiry and passed orders dated 22.06.2012 effecting the mutation of the name of defendant in respect of 50 ½ guntas and accordingly, issued pattadar pass book and title deed to her. During the pendency of proceedings
before Tahsildar, by suppressing the fact, the plaintiff filed the instant
suit by fabricating documents and mutating their names in revenue records. The plaintiffs are not in possession and enjoyment of the suit 4 of 16 land. Making such averments it is prayed to dismiss the suit.
4.Basing on the above pleadings, the following issues were framed.
1) Whether the doctrine of resjudicata applies to this suit?
2) Whether the plaintiffs are entitled to perpetual injunction in respect of suit schedule property against the defendant as prayed for?
3) To what relief ?
5.During the course of trial, plaintiff No.1 examined himself as
PW1 and he also examined supporting witnesses PW2 and PW3.
Plaintiffs marked in evidence Ex.A1 to A17. On the other hand, the defendant examined herself as DW1 and got marked Ex.B1 to B32.
The details of exhibits shall be noted at the appendix of evidence.
6.Heard the arguments of either side.
7.In order to avoid recapitulation of the facts, it is apposite to refer to the admitted facts that can be culled out from the pleadings. The admitted facts are as under :
Plaintiff No.1 to 4 are own brothers and defendant is their own sister. Originally the suit land belongs to their father. During his life time, their father gifted suit land to their mother. Their father and mother died in 2006 and 2009 respectively. Plaintiff No.4 had filed
OS.No.39/1993 against his parents, defendant herein and other
plaintiffs in respect of total properties, including the suit land, praying 5 of 16 the relief of partition and separate possession. However, the suit was dismissed on the ground that since the property was self acquired property of his father, he was not entitled for the relief of partition.
Mother of parties to the suit filed OS.No.76/2002 against the plaintiff
No.1 for declaration of title and permanent injunction and the said suit was decreed on 29.01.2009 in respect of suit land and other lands.
Issue No.1 :
Whether the doctrine of resjudicata applies to this suit?
As regards the above issue, it may be noted that so as to attract the principle of “resjudicata”, the former suit and the subsequent suit should be between the same parties and the issue in both the suits should be directly and substantially the same. So far as the application of the said principle is concerned, it is noticed that in OS.No.76/2002 the mother of parties and plaintiff No.1 were the parties whereas the parties to the present suit are plaintiff No.2 to 4 in addition to plaintiff
No.1 and the defendant is the sister of plaintiff No.1 to 4. In other words, plaintiff No.2 to 4 and the defendant herein were not the parties to OS.No.76/2002. Hence, the principle of resjudicata is not applicable.
Issue No.1 is answered accordingly.
Issue No.2 :
Whether the plaintiffs are entitled to perpetual injunction in respect of suit schedule property against the defendant as prayed for?
This is a suit for injunction simplicitor and it is the settled principle of law that initially the burden always lies on the plaintiff to 6 of 16 prove and to establish with cogent and convincing evidence that he is in possession of the suit schedule property as on the date of filing of the suit and he cannot depend upon the weakness of the defendant’s case. It is also settled principle of law that the relief of injunction is equitable relief and as such, the conduct of the plaintiff should be free from blame and the plaintiff should approach the court with clean hands.
Embarking upon the analysis of the evidence on record in the backdrop of the aforementioned settled principles of law, as has been indicated hereinabove, it is the case of the plaintiffs that they constitute
Hindu Joint Family and upon the demise of their father, the suit land devolved upon them and they have been in joint possession and enjoyment thereof. While so, the defendant stoutly opposed the claim of the plaintiffs on the grounds, inter alia, that her mother gifted her 50 ½ guntas in different survey numbers, including suit land, by way of executing registered gift deeds. Defendant raised another specific plea that though she had been the owner and possessor of 50 ½ guntas, entire records of Tahsil office had perished in a fire accident and taking advantage of such fact, the plaintiffs surreptitiously got entered their names in revenue records for 31 guntas only and when she discovered such fact, she made an application to R.D.O. and upon whose instructions, the Revenue Inspector conducted enquiry by physically inspecting the spot and upon his submission of enquiry report, the
Tahsildar passed orders by issuing proceedings under Ex.B9 and effected mutation in her name for 50 ½ guntas and issued pattedar pass books and title deeds in her favour. She further ventilated her 7 of 16 grievance stating that during the pendency of proceedings before the
Tahsildar, the plaintiffs herein have filed the instant suit by suppressing the real facts. In this regard, Ex.B9 is germane for consideration.
Perusal of Ex.B9 proceedings issued by Tahsildar shows that he observed in his order that after mutation was made in favour of the defendant in 2005, the office record was burnt due to fire accident and taking advantage thereof, brothers of defendant submitted an application and succession was granted in their favour; Sy.No.287/E admeasuring 13 guntas, Sy.No.287/U2 admeasuring 6 ½ guntas already got gift deed from the mother of defendant vide proceedings
dated 26.02.2005 and pass books were issued to the defendant; it is
hereby ordered under ROR Act to restore the defendants extent of 13 guntas in Sy.No.287/E and 6 ½ guntas in Sy.No.287/U2 in ROR and to delete the land from the existing pattedars.
It is manifestly clear from the order of Tahsildar under Ex.B9 that 31 guntas was restored in the name of the defendant as asserted by the defendant in her W.S. The most crucial aspect to be noted in this context is that the plea of defendant that the plaintiffs took advantage of the destruction of records in fire accident and clandestinelygetting entered their names in revenue records stood corroborated by the observation of none other than the Tahsildar himself thereby lending credence to the defence set up by the defendant. It is another matter that during the course of evidence, it has come on record that the plaintiffs have preferred appeal against the orders of Tahsildar under
Ex.B9 before the R.D.O. and the same is pending. At the same time, it is relevant to note that the plaintiffs did not make any whisper in their 8 of 16 pleadings about such appeal.
Ex.B4 to B6 are the registered gift deeds whereunder the mother of defendant is said to have gifted Ac.1.10 ½ gts to the defendant. The learned counsel for the plaintiffs picked holes in Ex.B26 which is the proceedings of Tahsildar dated 10.05.2012 whereunder 31 guntas in
Sy.No.287/A (11 guntas) and 287/UU (20 guntas) came to be mutated in favour of the defendant. The learned counsel for the plaintiffs pointed out that apart from the names of her parents, the names of two third parties namely Parushuramulu and Mallaiah are mentioned in
Ex.B26. The learned counsel for the defendant repelled this contention by submitting that the names of third parties appeared in Ex.B26 since they were original pattedars of land therein and from whom father of defendant purchased the land and this fact is specifically pleaded in the W.S. At any rate, the learned counsel for the plaintiffs’s contention to the above effect is not so relevant vis-a-vis issue in this suit. The learned counsel for the plaintiffs further commented that the plaintiff got issued a letter vide Ex.B13 dated 18.06.2012 intimating the Tahsildar about pendency of the suit but he issued Ex.B9 proceedings on 22.06.2012 despite such intimation. In this regard suffice it to note that according to the plaintiffs, they have already preferred appeal before the R.D.O. and this issue does not have much bearing on the issue involved in this suit. It is significant to note that Ex.B4 to B6 are the registered gift deeds executed by the mother of defendant in favour of the latter while she obtained mutation proceedings on 10.05.2012 under Ex.B26. However, defendant explained such delay stating that the delay was caused since she was abroad. This fact is confirmed by 9 of 16
PW1 himself by stating, in his cross examination, that the defendant was in the U.S.A. where her sons reside. The learned counsel for the plaintiffs further pointed out that in Ex.B18 R.O.R. copy the mode of acquisition of land by the defendant is showing by way of “sale” but not “gift”. It may be noted that this point is not so vital vis-a-vis relief prayed in the suit. It is a specific plea of the plaintiffs that the Ex.B4 to B6 registered sale deeds are sham, invalid, null and void, fraudulent, concocted and collusive documents. It must be stated in this respect that nothing prevented the plaintiffs from challenging Ex.B4 to B6 by way of filing suit for cancellation of documents. It is worth noting that the Tahsildar attached sanctity to Ex.B4 to B6 by issuing Ex.B9 and
B26 proceedings in favour of the defendant.
It is admitted position that the suit land is covering Ac.1.22gts i.e.
father acquired 24 guntas and mother acquired 8 guntas. Plaintiff No.4 filed OS.No.39/1993 in respect of Ac.1.08gts and as such the plaintiffs can be said to have admitted that their father purchased Ac.1.08gts and accordingly defendant need not prove the purchase of land by her father. This fact is answer to the contention of the plaintiffs that the defendant has not filed any documents to show that her father purchased the land concerned.
Mother of the parties filed OS.No.76/2002 for declaration and permanent injunction against PW1 in respect of 52 guntas including the suit land. The suit was decreed declaring her title for 52 guntas.
The learned counsel for the plaintiffs contended that during the pendency of such suit, mother of defendant executed registered gift deeds. This contention cannot be countenanced owing to the fact that 10 of 16 when the court granted the decree of declaration of title in favour of the donor, her title is held legal and valid and as such, her act of executing
Ex.B4 to B6 cannot be termed illegal. Moreover, the decree in that suit attained finality decree since the plaintiffs did not challenge the same during the life time of mother and without doing so, they simply filed instant suit in 2012 for injunction simplicitor without seeking the relief of declaration though they have knowledge of Ex.B4 to B6 and decree in
OS.No.76/2002. It is needless to mention at this juncture that given
the history of litigation, as noted supra, the suit for mere permanent injunction by the plaintiffs is not maintainable without seeking the relief of declaration. Thus, the plaintiffs deserved to be the non-suited on this count itself.
PW1 deposed that he and rest of the plaintiffs are the successors of his late father. It may be noted that if they are the successors, the defendant is also one of the successors being class-I legal heir. PW1 stated, in his cross examination, that he and his brothers have been living separately since the long time by dividing the houses and landed property. This statement by PW1 himself falsified the very case of the plaintiffs that they constitute Undivided
Hindu Joint Family. He further admitted it to be true that the defendant applied for mutation of 50 ½ guntas but by mistake only 31 guntas was mutated and subsequently the mistake was rectified. Thus, he explicitly confirmed the proceedings by Tahsildar under Ex.B9. He admitted to have not preferred any appeal against the orders is IA.No.216/2012 whereby the temporary injunction filed by the plaintiffs in this suit was dismissed. Be it noted that such order is prelude to the final outcome of 11 of 16 this suit when the court found, in initial stage, that the plaintiffs failed to prove their prima facie possession over the suit land.
Contradictions are noticed in the extent of the plaintiffs as different extents are mentioned in Ex.A1 and A2 compared to Ex.A3 to
A12. It is the consistent plea of PW1 to PW3 that the suit is filed for
Ac.1.08gts the joint family members while the defence of the defendant is that she is the owner and possessor of 50 ½ guntas. It is observed that firstly in 2011 upon her application, Tahsildar effected mutation in her name vide Ex.B26 to an extent of 31 guntas and secondly, upon her application to R.D.O. and upon whose instructions, Tahsildar effected mutation in her name an extent of 19 ½ guntas thereby totally 50 ½ guntas as reflected in page No.2 of Ex.B9, B11, B12, B19 to B22.
In Ex.B23 and B24 sale deeds the land of defendants is shown towards Southern side and this fact established her possession over the suit land. Similarly, mother of the parties executed gift deed dated 27.10.2005 in favour of plaintiff No.4 donating the house and in that document the plot of defendant is shown on the Southern side and this aspect indicated that the suit land had already been gifted to defendant in 2003. Ex.B9 and B26 categorically proved that the defendant was in possession of suit land as on the date of filing of this suit and this fact stood buttressed by exhibits B11, B18, B19 and B22. The subject matter in this suit and OS.No.76/2002 are one and the same and in the latter suit, the court declared mother of the parties to be the title owner of 52 guntas including the suit land and as such, the plaintiffs are barred to lay to claim the suit land again by filing this suit.
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In this regard, the learned counsel for the defendant placed reliance a decision reported in 2012 (3) ALT 127 between
Nagasamudrala Vasaraiah and Dasam Kondaiah (died) L.Rs, wherein our Hon’ble High Court held as under :
In a suit for injunction, once a court of competent jurisdiction has passed a decree for injunction in respect of a property, the defendant in that suit cannot be heard to say that he is in possession of the said property even if he has assumed possession unlawfully, court cannot extent its helping hand to him.
The ratio laid down in the aforesaid case law squarely applies to the facts of the case on hand as in OS.No.76/2002 the possession of mother of defendant was adjudged to be legal and valid by way of granting the decree of declaration of title and permanent injunction.
It is needless to add that it is the settled proposition of law that the plaintiff has to win or lose his case on his own strength and not on any weakness of defence. As has been already observed in the initial stage of this judgment that the relief of injunction is equitable relief and the conduct of the plaintiff should be free from blame and the plaintiff should approach the Court with clean hands. After scanning and weighing the material on record, it is found that the plaintiffs have not approached the court with clean hands and furthermore they utterly failed to prove that they are in possession of the suit land as on the date of filing of the suit. In sharp contrast thereto, defendant has clinchingly and conclusively proved her possession over the suit land as on the date of filing of this suit.
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8.When the matter was posted for judgment on 18.07.2018, on that date the plaintiffs filed IA.No.195/2018, for recalling PW1 for his further evidence. Since the learned counsel for the defendant did not choose to raise any objection and he reported no objection provided
PW1 be summoned on the next date of hearing. As such, the petition was allowed. Consequently, PW1 was recalled and further examined.
He produced and got marked Ex.A18 to A23.
Adverting to the documents tendered by PW1, as regards his filing of Ex.A18 (title deed) of father of plaintiffs and defendant, he stated, in his cross examination, that such document has already been in his possession right from the date of suit but he did not make any whisper about it in the plaint. In this connection it is pertinent to mention that Ex.A18 title deed has lost its relevance and evidentiary value owing to the fact that it is the admitted position of the plaintiffs that their father had gifted 23guntas in favour of their mother. In this regard, PW1 admitted it to be true, in his cross examination, that in his earlier cross examination, he admitted that 23 guntas in Ex.A18 (title deed of father) was gifted by his late father to his late mother. What is most important fact to be taken note of is that it is the specific plea of the defendant that her late mother gifted lands, including the suit land in her favour as mutation was effected in her name vide Ex.B26 to the extent of 31 guntas. In his second spell of cross examination after he is recalled, PW1 explicitly admitted to have not filed any document to show that 31 guntas stood in the name of his parents. This factor lent credence to the allegation of the defendant that when the entire record in M.R.O. office was gutted in fire accident, taking advantage thereof, 14 of 16 the plaintiffs got entered their names in Ex.A19 proceedings. The doubtful character of Ex.A19 further stood buttressed when PW1 admitted, in the present cross examination, that it is true that entire record in M.R.O. office was gutted in a fire accident in 2010 and he further admitted that he and other plaintiffs got mutated their names after the demise of their mother without serving any notice upon the defendant. This fact further reinforced and fortified the plea of the defendant that the plaintiffs obtained Ex.A19 mutation proceedings with malafide intention and to deprive her right over the land concerned. Be it noted that admittedly father gifted 23 guntas to mother who has become its owner while 8 guntas belongs to mother. If it is so, the question of plaintiffs deriving title to 31 guntas from father does not arise.
In view of the foregoing discussion, it is held that the plaintiffs are not entitled to the relief of permanent injunction as prayed for. Issue
No.2 is answered accordingly.
Issue No.3 :
In view of my findings under issue No.2, the suit is hereby dismissed with costs.
In the result, the suit is dismissed with costs.
Dictated to Personal Assistant, transcribed by him, corrected and
pronounced by me in open court, on this the 20 th day of July, 2018.
Senior Civil Judge,
Nagarkurnool.
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APPENDIX OF EVIDENCE
For Plaintiffs:-
PW1 Kathey B. Gopala Kishan
PW2 Kathey Shiva Ramulu
PW3 Kathey Srisailam
For Defendant:
DW1 K.B. Nirmala Devi
EXHIBITS MARKED
For Plaintiffs:
Ex.A1 is the original pattedar pass books (3 original and 1 certified copy)
Ex.A2 is the CC of pahani for the year 2011-12
Ex.A3 to A12 are the copies of pahanis for the fasli years 1422 (10)
Ex.A13 to A17 are the copies of ROR (5)
Ex.A18 is the title deed issued in favour of late father of PW1
Ex.A19 is the proceedings of Tahsildar dated 18.05.2010
Ex.A20 to A22 are the notices issued by RDO dated 06.09.2016, 19.04.2016 and 14.03.2016
Ex.A23 is the O/c of ROR appeal
For Defendant :
Ex.B1 is the CC of registered gift deed
Ex.B2 is the CC of judgment in OS.NO.39/1993 in Senior Civil Judge,
Nagarkurnool
Ex.B3 is the CC of decree in OS.No.39/93 in Senior Civil Judge,
Nagarkurnool
Ex.B4 to B6 are the CC of gift deeds
Ex.B7 and B8 are the CC of judgment and decree in OS.No.76/2002 of
Junior Civil Judge, Nagarkurnool respectively
Ex.B9 is the proceedings issued by Tahsildar, Bijinapally
Ex.B10 is the CC of ROR 16 of 16
Ex.B11 is the original pattedar pass book of K.B. Nirmala Devi
Ex.B12 is the original title deed of K. B. Nirmala Devi
Ex.B13 is the letter to Tahsildar, Bijinepally
Ex.B14 and B15 are the CC of registered gift deeds
Ex.B16 is the CC of palint on the file of Senior Civil Judge,
Nagarkurnool in OS.No.162/2012
Ex.B17 is the CC of palint on the file of Senior Civil Judge,
Nagarkurnool OS.No.163/2012
Ex.B18 is the computerized ROR of defendant
Ex.B19 is the pahanis for the Sy.No.287/U2 for the years 1420 to 1427
Ex.B20 to B22 are the computerized pahanis for the fasli years 1420 to 1427
Ex.B23 to B25 are the CC of sale deeds
Ex.B26 is the proceedings of Tahsildar, Bijinapally
Ex.B27 is the CC of sale deed (Ex.B1,B4 to B6, B14, B15, B23 to B25 and B27 are marked subject to the objection raised by the learned counsel for the plaintiffs as the original documents are not produced.)
Ex.B28 and 29 are the old pattadar pass books of Balakishan and
Naramma respectively
Ex.B30 is the proceedings issued by MRO, Bijinepally in favour of late
Naramma from Balakishan
Ex.31 is the proceedings of Tahsildar, Bijinepally issued in favour of mother of DW1
Ex.B32 is the 1-B form and receipt in favour of defendant
Senior Civil Judge,
Nagarkurnool.