IN THE COURT OF THE PRL. JUNIOR CIVIL JUDGE-CUM- JUDICIAL
MAGISTRATE OF FIRST CLASS AT HUZURABAD.
PRESENT: Smt. Paladugula Alekhya, Prl. Junior Civil Judge-cum-JMFC, Huzurabad.
Friday, this the 25th day of April, 2025
Original Suit No.123 OF 2012
Between:-
Ellandula Bikshapathi S/o Durgaiah, Age: 60 years, Occ: Retired Employee, R/o H.No.13-62, Ellandulawada, Huzurabad proper and mandal of Karimnagar district. …Plaintiff.
AND
1.Ellandula Srinivas S/o Durgaiah, Age: 42 years, Occ: Agriculture, R/o Bheemaram village of Hasanparthi mandal of Warangal district.
2.Musham Chandrakala W/o Chander, Age: 40 years, Occ: Household, R/o H.No.13-153/A, Ellandulawada, Huzurabad village and mandal of Karimnagar district. …Defendants. ***
This suit has come for final hearing and disposal before me in the presence of Sri.G.Narayana, Ld. Counsel for the Plaintiff, and Sri Md.Mustaffa, Ld. Counsel for defendant no.2, defendant No.1 set exparte, and having been heard and having been stood over for consideration to this day, this court made the following:-
: : J U D G M E N T : :
1.This suit is filed by the plaintiff seeking declaration of title and perpetual injunction restraining the defendants, their family members, agents, workmen etc., from interfering with the peaceful possession and enjoyment of the plaintiff in respect of the suit schedule property viz., land in Sy.No.2367/D to an extent of Ac.0-05 gts, near Bhoolaxmi Rice Mill, situated at Huzurabad proper and mandal of Karimnagar district, and to 2 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad declare the registered sale deed vide doc.No.5453/2011 dated 30.12.2011 as null and void and not binding on the plaintiff.
2.The averments of the plaint in brief are that plaintiff is the absolute owner and possessor of the suit schedule property. That originally, father of plaintiff was the owner and pattadar of the land in Sy.No.2367/D and after his death, his sons, succeeded the same in equal shares, in which the plaintiff allotted suit schedule property to an extent of 5 gts and defendant
No.1 allotted land in Sy.No.2367/D to an extent of Ac.0-04 5/16 gts and other two brothers also allotted their respective shares in the said survey number and also other lands and since then they are in possession and enjoyment of the same and their names also recorded in revenue records as owner of their respective shares and they were issued pattadar passbooks and title deeds. It is further submitted that defendant No.1 sold away part of his share in Sy.No.2367/D to an extent of 250 sq.yrds to one Jella Laxmaiah through his GPA holder/Mohammed Abdul Saleem vide registered sale deed doc.No.1495/2006 dated 27.03.2006 and the remaining land is in possession of defendant No.1.
It is further submitted that defendant No.1 with a malafide intention to grab the the suit schedule property and without having any rights defendant No.1 sold away the suit schedule property to defendant No.2 through concocted and fictitious Registered Sale Deed vide doc.No.5453/2011 dated 30.12.2011 and that plaintiff came to know about 3 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad the same on 10.02.2012. That defendants taking advantage of the same trying to interfere with the possession of the plaintiff and defendant No.2 trying to obtain permission from Grampanchayat, Huzurabad. That on 20.02.2012, plaintiff requested the defendants to take necessary steps for cancellation of registered sale deed bearing doc.No.5453/2011 dated 30.12.2011 but they refused for the same. That on 24.04.2012, defendant
No.2 along with her yesmen came to the suit property and tried to interfere into the suit schedule land, but the plaintiff and his well wishers resisted them from doing so. Hence, the suit.
3.Defendant no.1 did not contest the suit and did not file his written statement. Both defendants were set exparte on 24.09.2012 for non filing of written statement. I.A. No. 961 of 2012 is filed and allowed setting aside the exparte order. Written statement of defendant no.2 is only filed and on 11.03.2019 defendant was set exparte. I.A. No. 219 of 2019 was filed by defendant no.2 and the same was allowed.
3.1 The defendant No.2 filed written statement and denying all the material averments in the plaint except relationship between the plaintiff and defendant No.1 and submitted that the plaintiff already sold out his share in suit Sy.No.2367/D in the year 1993 vide doc. No. 791/1993 and doc.No.936/1993 to one Goskula Venkataiah and Banda Srinivas Reddy and as such, plaintiff has no right over the suit schedule property and that the Grampanchayat, Huzurabad also granted permission to defendant No.2 4 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad for construction over the suit schedule plot on 26.11.2012, hence prayed to dismiss the suit.
4.Basing on the pleadings filed by the plaintiff and the Defendant No.2, this court settled the following issues for trial :
1Whether the plaintiff is entitled for declaration of title, as prayed for? 2Whether the plaintiff is entitled for perpetual injunction, as prayed for? 3Whether the plaintiff is entitled for a declaration that the registered sale deed No.5453/2011 dated 30.12.2011 as null and void and not binding on the plaintiff? 4To what relief?
ISSUES No.1 to 3:-
5. In support of plaintiff’s case, plaintiff is examined as PW1 and got marked Ex.A1 to Ex.A17 and got examined his son as PW2 on his behalf.
Ex.A1 is the Pattadar passbook. Ex.A2 is the Title Deed. Ex.A3 is the Pahani for the year 1994-95. Ex.A4 is the Pahani for the year 1998-99. Ex.A5 is the pahani for the year 2002-03. Ex.A6 is the pahani for the year 2005-06.
Ex.A7 is CC of General Power of Attorney. Ex.A8 is the CC of Sale Deed.
Ex.A9 is CC of Sale Deed. Ex.A10 is Encumbrance Certificate. Ex.A11 is
Statement of Encumbrance Certificate. Exs.A12 to A17 are the True copy of pahanies for the year 1969-70, 1975-76, 1976-77, 1979-80, 1981-82 and 1984-85 respectively.
5 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad
6.In support of defendant no.2’s case, defendant No.2 got examined as
DW1 and got marked Exs.B1 to B44 and got examined her husband as DW2 on her behalf.
7.In support of plaintiff’s case, plaintiff himself got examined as PW1 and re-iterated the contents of plaint in his chief examination affidavit and got marked as Exs.A1 to A11 and in his further examination, he got marked
Exs.A12 to A17. In his cross examination, he stated that they are four brothers and that he has filed the documents to show that the suit property was allocated to him during the family partition. He denied the suggestion that he has not filed any such document. He stated that the total land in suit survey number is 20 guntas and then his mother allotted 5 guntas of land to him out of said 20 guntas of land. He denied the suggestion that after purchase of suit land defendant no.2 obtained construction permission from the Grampanchayat and constructed house in it and volunteers that till date it is vacant and there are no structures in suit land.
He denied the suggestion that defendant No.2 constructed a house in the suit land and it was allotted house number 12-221/2 and that she obtained tap connection and that she dug a bore-well by obtaining permission from Grampanchayat and that she obtained electricity connection and is paying electricity charges till date. He admitted that he filed suit before the Hon'ble Senior Civil Judge, Huzurabad against his relatives in respect of suit survey number but to a different extent of land.
6 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad
He denied the suggestion that he sold away the land situated in suit survey number which fell towards his share during partition to one Banda Srinivas
Reddy and another on 02.08.1993 and also on 16.08.1993 under registered sale deed. He denied the suggestion that he filed another suit vide OS
No.41/2013 seeking perpetual injunction over suit land and in his further cross examination he stated that he cannot say the boundaries of the land to an extent of 22 guntas held by his father Ellandula Durgaiah in Sy.No.
2367/D. He stated that no Will deed was executed by his father during his lifetime. He further stated that his father passed away on 01.04.1981 and his mother passed away in the year 1999. He further stated that his father has four sons and three daughters and he admitted that the above eight (8) persons are all legal heirs of his late Father/Ellandula Durgaiah.
8.One Ellandula Kishore who is the son of plaintiff got examined himself as PW2 and he deposed that his father is the absolute owner and possessor of the suit schedule property and that the defendants are not having any rights over the same. He further stated the facts stated by plaintiff in his chief examination affidavit as all true. During the cross examination, he stated that his father has three brothers by name Late Mogili, Sanjeev and
Srinivas. He stated that on the Eastern side of the suit schedule land, the plots of Raghupathi and Srinivas are present, on the Western side, there is a road, on the Northern side, there is Bhoolakshmi Rice Mill is present and on the Southern side, there is a plot of one Ravinder. He admitted that vide
Ex.B1 which is document no. 791/1993, his father/PW1 alienated land to 7 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad an extent of 292.30 Sq. yards to one Banda Srinivas Reddy and that vide document no. 936/1993, his father/PW1 along with his brothers sold a land to an extent of 260 Sq. yards to one Goskula Venkataiah in Sy. No. 2367/D under Ex.B2 and that defendant No.1 sold land to an extent of 541.66 Sq.
yards in Sy.No.2367/D to defendant No.2 under Ex.B3. He denied the suggestion that he has signed as witness in above said Registered sale deed.
Upon confrontation of the document, he denied the signature appearing on the Registered Sale Deed and pleaded ignorance about the mutation in favour of defendant No.2 in respect of said land. He admitted that as per 1B namuma confronted to him, Ellandula Ramadevi is possessing land to an extent of 05 gts in Sy. No. 2367/D and Ellandula
Sanjeev is possessing land to an extent of 05 gts in Sy. No. 2367/D and
Ellandula Srinivas is possessing land to an extent of 4 15/16 gts in Sy. No.
2367/D under Ex.B4.
He pleaded ignorance as to whether defendant No.2 dug a well and obtained House construction permission from the concerned authorities for water connection and he added that they are in possession of the suit survey land by constructing a compound wall. He admitted that a case got registered vide Cr.No. 278/2022 of PS Huzurabad against him alleging that he criminally trespassed into the house of defendant No.2. He admitted that his father filed a suit vide OS No. 41/2013 on the file of the Hon'ble Senior
Civil Judge's Court, Huzurabad pertaining to the same suit schedule land to
8 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad an extent of 4 1/2 gts against Ellandula Ramadevi, Ellandula Praneeth
Kumar and Gudimalla Veeeraswamy. He denied the suggestion that PW1 already sold his share of land in Sy.No.2367/D to third parties in the year 1993 and that there is no land belonging to PW1 in Sy.No.2367/D as he already sold his share of land.
9.Defendant No.2 got examined herself as DW1 and got marked Exs.B5 to B44. She stated in her cross examination that she has deposed in the same lines as stated in her written statement, in her chief examination affidavit. She denied the suggestion that she purchased excess land which is not owned by defendant no.1. She also stated that she forgot whether the contents of her written statement are not in the line of her chief examination affidavit. She denied the suggestion that she has adduced oral evidence without necessary pleadings in her written statement.
She admitted that after verifying the pahanies and Encumbrance certificate reflecting the name of her vendor/defendant No.1, she purchased land to an extent of 541.66 sq. yards in suit survey number. She denied the suggestion that defendant no.1 originally had only 4 ½ gts of land in suit survey number as per revenue records. She admitted that as per Ex.B4, defendant no.1 had only 4 & 15/16 guntas of land in suit survey number.
She also admitted that as per Ex.B32, defendant no.1 is recorded as pattadar and possessor in respect of 4 ½ guntas of land in suit survey number and as per Ex.B33, plaintiff is recorded as pattadar and possessor 9 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad in respect of 4 ¼ guntas of land in suit survey number and defendant no.1 is recorded as pattadar in respect of 4 ¼ guntas of land in suit survey number but he is not recorded as possessor.
She pleaded ignorance of the total extent of land in Sy.No. 2367/D.
She admitted that as per Ex.A12, the total extent of land in Sy.No. 2367/D is Ac.03-12 gts and that Ellandula Mallaiah, Ellandula Durgaiah and
Ellandula Bakkaiah are recorded as pattadars along with few others. She pleaded ignorance about the ancestors of said persons. She admitted that defendant no.1, plaintiff and Mogili are the sons of Ellandula late Durgaiah.
She added that the Ellandula Durgaiah had another son by name Sanjeev.
She pleaded ignorance about the partition amongst plaintiff, defendant no.1 and Mogili about the inheritance of the land to an extent of Ac. 01-06 gts in suit survey number and partitioned and whether the same is recorded in
Ex.A15.
She pleaded ignorance about the properties being sold jointly by plaintiff, defendant no.1 and Mogili in suit survey number and by 1993, they were having only 14 guntas of land. She admitted that as per records, said plaintiff was allotted 5 guntas, Ellandula Rama who is the wife of deceased
Mogili was allotted approximately 4 ½ guntas and defendant no.1 was allotted the land approximately 4 ½ to 4 & 15/16 guntas in suit survey number. She admitted that plaintiff was issued pattadar passbook and title deed in respect of said 5 guntas of land in suit survey number.
10 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad
Upon being questioned as to giving notice of paper publication seeking objections at the time of her purchase from defendant no.1. She deposed that the son of plaintiff by name Ellandula Kishore/PW2 signed as attesting witness in her document of purchase vide Ex.B3. She denied the suggestion that PW2 is not the attesting witness to Ex.B3 and that one Ramesh and B.
Anjaiah are the witnesses to it as per the document. She admitted that the signature of PW2 in his deposition is not the same as the one appearing in
Ex.B3 and added that the signature in the deposition of PW2 is not his original signature.
She pleaded ignorance about whether defendant no.1 executed GPA,
dt. 18.02.2006 in favour of Mohd. Abdul Saleem for an extent of 250 sq.
yards out of land allotted to him which is 04 ½ gts of land under Ex.A7.
She further pleaded ignorance about the sale of 250 sq. yards out of land allotted to defendant no.1 by said Abdul Saleem to one Jalla Lakshmaiah under Ex.A8. She denied the suggestion that after the said transactions in favour of Jalla Lakshmaiah, defendant no.1 did not have 541.66 sq. yards in suit survey number to sell the same to her and that she did not filed any document and also pattadar passbook of her vendor/defendant no.1 to show that he is having 541.66 sq. yards of land after the said transactions and that the suit schedule property is allotted to him. She admitted that she did not mention about the pendency of this suit before Nagar panchayath officials at the time of obtaining Ex.B14/building permission. To which she 11 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad added that she applied for the building permission prior to the filing of the suit.
10.DW2/Musham Chander is the husband of DW1. He also deposed in similar lines as DW1 both in his chief and cross examination.
11.Ex.A1 is the old pattadar passbook of Ellandula Bikshapathi and as per it, he is having land to an extent of 5 gts in Sy.No.2367D.
Ex.A2 is the old title deed of Ellandula Srinivas/defendant No.1 and as per it, he is having land to an extent of Ac.0-04 5/16 gts in Sy.No.2367D.
Ex.A3 is the pahani for the year 1994-95 and as per it, Ellandula
Bikshapathi, Mogili, Sanjeev and Srinivas are recorded as pattadar and they each having 4 ¼ gts of land in Sy.No.2367/D.
Ex.A4 is the true copy of pahani for the year 1998-99 and as per it,
Ellandula Bikshapathi, Ellandula Ramadevi (who is the wife of Mogili),
Ellandula Sanjeev, Ellandula Srinivas recorded as pattadar and possessor in respect of 4 ¼ gts of land each in Sy.No.2367/D.
Exs.A5 and A6 are the true copy of pahani for the years 2002-03 and 2005-06 respectively also reflects the same as Ex.A4 in respect of
Sy.No.2367/D.
Ex.A7 is the certified copy of General Power of Attorney dated 18.02.2006 executed by Ellandula Srinivas/D1 in favour of Mohd.Abdul
Saleem and authorizing the said Saleem to manage and sale the land to an 12 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad extent of 250 sq.yrds in Sy.No.2367/D. The boundaries of the said plot are as follows: North: Land of Thirupathamma, South: H.No.12-224 of Immadi
Mallaiah, East: others plot and West: G.P Road.
Ex.A8 is the sale deed dated 27.03.2006 executed by Mohd.Abdul
Saleem as G.P.A Agent of Ellandula Srinivas in favour of Jella Laxmaiah to an extent of 250 sq.yrds of land and as per it, H.No.12-224 is situated adjacent to said plot. It is pertinent to note that he has not shown the remaining land allotted to him in any of the boundaries.
Ex.A9 is the certified copy of sale deed dated 30.12.2011 executed by defendant No.1 in favour of defendant No.2/Musham Chandrakala in respect of 541.66 sq.yrds of land in Sy.No.2367/D and the boundaries of the said land has shown in the document are as follows: North: Bhulaxmi Rice
Mill No.12-207, South: Plot of Srinivas, East: H.No.12-202 of Musham
Raghupathi and H.No.12-203 of Chanda Mahender and West: 18’ feet G.P
Road. The boundaries of suit land are same as that shown in Ex.A9 though the extents are different.
Ex.A10 is the Copy of Encumbrance on Property of the land to an extent of 4.5 gts in Sy.No.2367/D, wherein the transaction under Ex.A9 is recorded.
Ex.A11 is the Encumbrance certificate obtained from Mee-seva, wherein the transaction under Ex.A8 is recorded.
13 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad
Ex.A12 is the true copy of pahani for the year 1969-70 and as per it, the total extent of land in Sy.No.2367/D is Ac.3-12 gts and the names of
M.Agaiah, Panjala Veeramallu, Ellandula Bikshapathi and another is recorded as Khabzadar.
Ex.A13 is the true copy of pahani for the year 1975-76 and as per it,
Ellandula Durgaiah, Ellandula Bakkaiah and Ellandula Mallaiah are recorded as Khabzadar in respect of 22 gts of land each in Sy.No.2367/D2, 2367/D3 and 2367/D4 respectively. The said Ellandula Durgaiah is the father of the plaintiff and defendant No.1.
Ex.A14 is the true copy of pahani for the year 1976-77 also reflects the extents held by said persons in Sy.No.2367/D as 22 gts each.
Ex.A15 is the true copy of pahani for the year 1979-80 also reflects the same as in Ex.A13 and A14.
Ex.A16 and Ex.A17 are the true copy of pahani for the year 1981-82 and 1984-85 respectively wherein, Ellandula Durgaiah, Bakkaiah and
Mallaiah are shown to have possession of Ac.1-26 gts in total and their respective extents are mentioned in the pahani across the survey number 2367/D.
12.Exs.B1 to B3 were marked during cross examination of PW2. Exs.B1 and B2 are sale deeds pertaining to the year 1993. That the defendant No.2 pleaded that plaintiff has sold away his property as per the said documents, 14 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad however, in her cross examination DW1 has admitted that Bikshapathi along with others have jointly sold the properties to third parties.
The extent covered under Ex.B1 is 292 sq.yrds and the extent covered under Ex.B2 is 260 sq.yrds. Ex.B3 is the Registered Sale Deed executed by defendant No.1 in favour of defendant No.2 in respect of the suit schedule property. Ex.B4 is 1-B Namuna and as per it, Ellandula Srinivas is having 4 15/16 gts in Sy.No.2367/D. Ex.B5 is the ownership certificate issued by the
Commissioner, Huzurabad Municipality in respect of H.No.12-221/2.
Exs.B6 to B11 are the various miscellaneous receipts pertaining to H.No.12- 221/2 in Sy.No.2367/D.
Ex.B12 is the permission obtained by defendant No.2 from
Commissioner, Nagara Panchayath, Huzurabad for digging well. Ex.B13 is the miscellaneous receipt. Ex.B14 is the building permission along with plan. Ex.B15 is the original Transco Electricity Bill. Ex.B16 to B19 are
Receipts of property tax. Ex.B20 is the assessment payment details. Ex.B21 to B24, B26 are Original NPDCL electricity charges receipt. Ex.B25 is the electricity bill. Ex.B27 is the Consumption billing collection and arrears history (KVAH). Ex.B28 is the pahani for the year 2008-2009 and as per it, defendant No.1 is shown as pattadar and possessor in respect of 4 ½ gts of land in Sy.No.2367/D. Ex.B29 is the mutation proceedings dated 17.02.2012 and as per mutation proceedings, objections were called for, however as no objections were received, mutation was effected vide order
dated 17.02.2012. Ex.B30 is land valuation certificate. Ex.B31 is Paper
15 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad publication notice issued by plaintiff counsel. Ex.B32 and B33 are true copy of Pahanies for the years 2008-2009 and 2010-2011, as per which,
Ellandula Srinivas is shown as pattadar and possessor of 4 ¼ gts in suit survey number and Ellandula Bikshapathi was shown as pattadar and possessor of land to an extent of 4 ¼ gts. Ex.B34 is the property tax receipt.
Ex.B35 and B36 are Tap receipts. Ex.B37 is Electricity consumption particulars.
Ex.B38 is certified copy of Application to Police. Ex.B39 is the
Certified copy of FIR in Cr.No.278/2022. Ex.B40 is the Certified copy of the plaint in O.S.No.41 of 2013 on the file of Hon'ble Senior Civil Judges Court,
Huzurabad which is filed by plaintiff herein for perpetual injunction against
Ellandula Ramadevi, Ellandula Praneeth Kumar and Gudimalla Veera
Swamy and as per it, the total market value of subject matter therein is shown as Rs.30,25,000/-.
Ex.B41 is the registered sale deed executed by Ellandula Bishapati,
Ellandula Sanjeev, Ellandula Srinivas, Ellandula Chinna Rajaiah and
Ellandula Pedda Rajaiah in favour of Ellandula Bikshapati to an extent of 241.66 sq.yrds and as per it, the boundaries on the northern side is open place of Ellandula Bikshapati. Ex.B42 is the registered sale deed executed by Ellandula Pedda Rajanna and Ellandula Bikshapati in favour of Tangella
Ramulu to an extent of 120.83 sq.yrds and as per it, the eastern side boundary is shown as land of vendors. Ex.B43 is water tax receipt and
Ex.B44 is house property tax.
16 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad
13.The pahani filed by the plaintiff for the year 1994-95 shows that he is having 4 ½ gts of land and Exs.B1 and B2 are sale transactions prior to the year 1994-95. The sale transactions under Ex.B41 and B42 are transactions made by the plaintiff subsequent to the year 1994. As per the documents filed by the plaintiff, more particularly, Ex.A13 to Ex.A15, the father of plaintiff namely Durgaiah is having 22 gts of land and admittedly, they are 4 sons and 3 daughters. The case of the plaintiff is that he was allotted 5 gts of land, however, the documents filed by defendant vide Ex.B1, B2, B41 and
B42 shows that plaintiff is party to sale transactions to an extent of 7.5 gts in total, however, the sale transaction does not specifically states what share of plaintiff has been sold and no explanation is given in that regard.
14.The Ld. Counsel for the plaintiff has placed reliance upon the decision of the Hon’ble Supreme Court in Kashi Nath (Dead) through Lrs Vs.
Jaganath (2003) 8 SCC 740 and the decision of the Hon’ble Supreme
Court in Kalyan Singh Chouhan Vs. C.P. Joshi (2011) 11 SCC 786 wherein it was observed that evidence adduced in variance with the pleadings is to be ignored and it cannot be considered and that in absence of pleading, evidence adduced or produced by the parties cannot be considered. It was held that when there is variance in the pleadings and evidence, such evidence cannot be relied upon as per Order 6 Rule 1 CPC and Order 18 Rule 2 CPC and further held that an adverse inference is to be drawn if pleadings and evidence are self contradictory. In the present case, 17 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad the chief examination affidavit of DW1 contains certain facts which are not pleaded in the written statement. They are in respect of the subsequent permissions obtained by defendant no.2 in respect of the suit property in the Nagar Panchayath and also about the complaints made against the plaintiff before SHO, PS Huzurabad and also the proceedings before the
Hon’ble High court in the Writ Petition.
15.The transactions covered under Ex.B41 and Ex.B42 are also not pleaded in the written statement but are mentioned in the chief examination affidavit. Thus, it appears that the defendant no.2 has deposed about subsequent facts regarding the suit property in her chief examination affidavit and also in respect of transactions made under Ex.B41 and
Ex.B42, however, this court is of the view that the said evidence is not in contradiction to the pleadings of defendant no.2 but in continuation of the same.
16.In the said case, it was observed that the evidence and the pleadings were not only at variance with but directly contradictory and self destructive of the case on the claim of adoption. In such circumstances, it was observed that an adverse inference is to be drawn when pleadings and evidence are self contradictory. In the present case as observed, the defendant no.2 adduced evidence on the subsequent events that followed the filing of the suit and also about the transactions involving land in suit survey number and the plaintiff as such, it cannot be said that such evidence is 18 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad contradictory to her pleadings. In her written statement, she has categorically pleaded that plaintiff is out of possession of the suit property and in support of the same, she has filed Ex.B4 to Ex.B27, Ex.B29, Ex.B34 and Ex.B37 and she has also filed certified copies of criminal cases between the parties which came to be registered in the year 2022 and as such, this court is of the view that they are relevant as well as admissible.
17.Furthermore at the time of marking of said documents, no objection was raised by the plaintiff counsel as to their admissibility and relevancy. In her written statement, defendant no.2 has categorically pleaded about transactions of the plaintiff vide Ex.B1 and Ex.B2 pertaining to the year 1993 stating that plaintiff has sold out his share in suit survey no. 2367/B in the year 1993. In addition to the said transactions, the defendant no.2 in her evidence has pleaded that the plaintiff has also entered into transactions under Ex.B41 and Ex.B42 pertaining to the year 1996 and 1998 respectively. It is pertinent to note that denying the transactions under
Ex.B41 and Ex.B42, the plaintiff has not filed any rejoinder explaining the said transactions and the plaintiff put forth a case through his evidence and through his cross examination that the said transactions were jointly made along with other share holders.
18.Similarly, Ex.B41 and Ex.B42 were not denied in the cross examination against defendant no.2. But the only stand taken by the plaintiff through his counsel in the cross examination of defendant 19 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad witnesses is that said transactions were jointly made and they were not made out of the share allotted to him. That being the case, this court is of the view that Ex.B41 and Ex.B42 are admissible in evidence and are relevant to the case of the defendant no.2 to establish that plaintiff sold out the share in the property and has no right over the suit land.
19.The Ld. Counsel for the plaintiff contended that the Defendant no.1 has not entered the witness box and adverse inference has to be drawn and relied upon the decision of the Hon’ble Supreme Court in Vidhyadhar Vs.
Manikrao and another (1999) 3 SCC 573 wherein it was observed that when a party to the suit does not appear to the witness box and state his own case on oath and does not offer himself to be cross examined by the other side a presumption would arise that the case set up by him is not correct. However, the said decision is not applicable to the present case as defendant no.2 was examined as DW1 and no adverse inference can be drawn against defendant no.2 as defendant no.1 was set exparte.
20.The suit is filed for declaration of title and perpetual injunction, the plaintiff has not filed any document to show that he is in possession of the suit land prior to filing of the suit. The documents filed by the defendants amply shows that they have been in possession of the suit land and subsequently has raised construction by obtaining permission. Though, the permission was obtained during the pendency of the suit that itself does not show that they are not in possession. Both the plaintiff and defendants 20 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad have filed photographs to show that they are in possession of the construction laid in suit land. The plaintiff counsel during cross examination of DW1 has pointed out that the said construction is not as per the building permission, however, the plaintiff has not filed any document to show that he has raised said construction in which he allegedly resides with his wife. He categorically pleaded in his plaint that the suit land was vacant at the time of filing the suit.
21.Furthermore, the house number is evidently written on the construction laid in the suit land as the suit is filed for declaration of title, the burden heavily lies upon the plaintiff to show that he is the absolute owner and possessor of the suit land.
22.In the present case, the case of the plaintiff is that the suit land was allotted to him in partition along with other lands and Ellandula Srinivas was allotted 4 15/16 gts of land. The plaintiff has relied upon the documents executed by Ellandula Srinivas in favour of one Saleem authorizing him to manage and sale the land to an extent of 250 sq.yrds in
Sy.No.2367/D vide Ex.A7. However, the boundaries shown in the said deeds vide Exs.A7 and A8 shows that land covered under said deeds is nowhere near the suit land. Furthermore, he has not specifically pleaded about the transactions made by him at the time of filing the suit. The transaction to which, he is party has been brought to light by defendant
No.2.
21 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad
23.The relief sought in this petition is an equitable relief and therefore, the parties have come to the court with clean hands and should not suppress any material fact affecting the case. From the evidence brought on record, it is evident that the plaintiff has suppressed the transactions to which he is part in respect of suit survey number. Whether or not, the said transactions have been made prior to or subsequent to the alleged partition between the brothers has not been evidently brought on record. There are no pleadings with respect to date of partition and the circumstances surrounding the oral partition.
24.From the old pahanies filed by the plaintiff, it appears that his father and his father’s brothers were having separate extents of land in
Sy.No.2367/D. However, the reason for making the joint sales from the years 1992 to 1996 is not explained by the plaintiff. Though, the plaintiff claims to have 5 gts of land, the extent of land covered under Ex. A9 is only 4 ½ gts approximately. These discrepancies are also unexplained. Moreover, there is no document to show that he was allotted 5 gts of land. He has not adduced any evidence of his family members or the witnesses present at the time of alleged oral partition to show that he was allotted the suit land with specific boundaries except that of his own son.
25.Though the contention taken by the plaintiff that his brother has sold away land more than his share by relying upon the document executed by
GPA holder in favour of one Jella Laxmaiah vide Ex.A8 in 2006, the revenue 22 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad records filed doesn’t show the name of said Jella Laxmaiah and he is no where recorded as pattadar and possessor of said extent. Mere admission of the defendant No.2 in her cross examination that the plaintiff was allotted 4 ½ gts of land in partition along with his brother, defendant No.1 and others itself does not confer title as she has not witnessed the said oral partition.
26.The Ld. Counsel for the plaintiff has further relied upon the decision of the Hon’ble Supreme court in J.P. Builders and ors. Vs. A. Ramadas
Rao and ors. 2010 (12) (2011) 1 SCC 429 in support of his contention that the court can mould any relief and though the plaintiff was allotted 5 guntas of land and though the suit property is shown as 5 guntas, it can be moulded to the land covered under Ex.B3 which is 541.66 Sq. Yards. The said case does not come to the aid of the plaintiff as this court has already observed that the plaintiff failed to establish his ownership under the suit and also the land covered under Ex.B3. As such, the question of moulding the relief does not arise.
27.The Ld. Counsel for the plaintiff contended that DW1 and DW2 has admitted that the plaintiff was allotted 4 & 1/2 guntas of land in suit Sy.
No. 2367/D and based on such admission, the suit judgment can be
pronounced by decreeing the suit and in this regard has relied upon the
decision of the Hon’ble Supreme Court in Vikrant Kapila and another Vs.
Pankaja Panda and others wherein it was observed that discretion is conferred on court to pass a Judgment on admission in pleading as per 23 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad order 12 rule 6 CPC and such admission should be unequivocal, unconditional and unambiguous. In the present case, though the defendant no.2 has admitted that the plaintiff was allotted 4 & 1/2 guntas of land in suit survey number she has categorically stated that he has sold away such share allotted to him and the plaintiff has failed to disclose the transactions under Ex.B1, B2, B41 and B42 and failed to explain the said transactions by way of filing rejoinder or otherwise. That being the case, the admission of the defendant no.2 that the plaintiff was allotted the share of 4 & 1/2 guntas cannot be said to be unambiguous and unequivocal and the burden lies on the plaintiff to establish the surrounding circumstances and the exact land that was allotted to him. As already observed, the plaintiff failed to establish the same by adducing cogent and convincing evidence. As such, the said decision does not come to the aid of the plaintiff.
28.The Ld. Counsel for the defendant no.2 has relied upon the decision of
Hon’ble High Court Bombay High Court in Shri Vassudev Nene & Others
vs Shri Dattatraya Raghunath Jog, dt. 26.03.1999 in support of his contention that the plaintiff approached the court without clean hands and suppressed the material fact and documents and as such, he is not entitled to any equitable relief. The principal laid down in the said case is very much relevant to the present case and it is already observed that the plaintiff has suppressed the material facts as to the transactions made by him in respect of the suit survey number.
24 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad
29.Moreover, on the aspect of court fee, to show that the suit is undervalued, defendant No.2 has relied upon the certified copy of plaint filed by the plaintiff in the court of Hon’ble Senior Judge, Huzurabad vide
Ex.B40, wherein the market value of the suit property is shown as
Rs.30,00,000/-. Whereas, in the present case, the total market value of the suit land is shown as Rs.4,35,000/- and also the suits are filed within span of 1 year. No plausible explanation is given by the plaintiff counsel for the same. As per Ex.A9, the Market Value is shown as Rs. 3900/- per square yard amounting to Rupees Twenty One Lakhs approximately. The plaint shows that said suit is filed in respect of subject matter of this suit. Thus, the plaint in this suit is evidently undervalued.
30.Though, the defendant No.1 has not contested the matter, the same does not confer title on the plaintiff. The plaintiff filed the original title deed of defendant No.1 which usually is kept in the custody of the pattadar.
Thus, it appears that defendant No.1 colluded with the plaintiff and filed the suit. When the suit as such nature is instituted, the burden heavily lies on the plaintiff to show that he is the absolute owner and in the present case, the plaintiff has relied upon the pattadar passbook to show that he is having the suit land, however, the surroundings circumstances have not been brought on record, therefore for the said reasons, the suit is liable to be dismissed.
25 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad
ISSUE No.4:
31.As issue No.1 to 3 are decided in favour of defendant No.2 and against plaintiff, the suit is liable to be dismissed.
32. In the result, the suit is dismissed. Parties to bear their own costs.
Dictated to the stenographer Gr.III, transcribed by him, corrected and pronounced
by me in the open court on this the 25 th day of April, 2025.
Sd/-
PRL. JUNIOR CIVIL JUDGE,
HUZURABAD
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE PLAINTIFF: FOR THE DEFENDANT NO.2:
PW1: Ellandula BikshapathiDW1: Musham Chandrakala PW2: Ellandula KishoreDW2: Musham Chander
EXHIBITS MARKED
FOR THE PLAINTIFF:
Ex.A1 is the Pattadar passbook.
Ex.A2 is the Title Deed.
Ex.A3 is the Pahani for the year 1994-95.
Ex.A4 is the Pahani for the year 1998-99.
Ex.A5 is the pahani for the year 2002-03.
Ex.A6 is the pahani for the year 2005-06.
Ex.A7 is CC of General Power of Attorney.
Ex.A8 is the CC of Sale Deed.
Ex.A9 is CC of Sale Deed.
Ex.A10 is Encumbrance Certificate.
Ex.A11 is Statement of Encumbrance Certificate.
Ex.A12 is the True copy of pahani for the year 1969-70 (02)
Ex.A13 is the True copy of pahani for the year 1975-76 (02) 26 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad
Ex.A14 is the True copy of pahani for the year 1976-77 (02)
Ex.A15 is the True copy of pahani for the year 1979-80 (02)
Ex.A16 is the True copy of pahani for the year 1981-82 (01)
Ex.A17 is the True copy of pahani for the year 1984-85 (01)
FOR THE DEFENDANT NO.2:
Ex.B1 is the CC of Registered Sale deed vide doc.No.791/1993 dated 02.08.1993.
Ex.B2 is the CC of Registered Sale Deed vide doc.No.936/1993 dated 16.08.1993.
Ex.B3 is the Registered Sale Deed vide doc.No.5453/2011 dated 30.12.2011.
Ex.B4 is 1-B Namuna.
Ex.B5: Original ownership certificate issued by the Commissioner, Nagara Panchayath, Huzurabad, dt.29-07-2017.
Ex.B6: Original miscellaneous receipt issued by the Commissioner, Nagara Panchayath, Huzurabad, dt. 29-07-2017.
Ex.B7: Original miscellaneous receipt tap tax issued by the Commissioner, Nagara Panchayath, Huzurabad, dt.07-07-2017.
Ex.B8: Original miscellaneous receipt tap tax issued by the Commissioner, Nagara Panchayath, Huzurabad, dt.17-08-2015.
Ex.B9: Original miscellaneous receipt tap tax issued by the Commissioner, Nagara Panchayath, Huzurabad, dt. 11-12-2013.
Ex.B10 Original miscellaneous receipt tap contribution fees issued by the Commissioner, Nagara Panchayath, Huzurabad, dt. 11-12-2013.
Ex.B11: Original miscellaneous receipt bore permission issued by the Commissioner, Nagara Panchayath, Huzurabad, dt 30-11-2012.
Ex.B12: Original permission letter for digging the well issued by the Commissioner, Nagara Panchayath, Huzurabad, dt. 30-11-2012.
Ex.B13: Original miscellaneous receipt permission for construction the building issued by the Commissioner, Nagara Panchayath Huzurabad, dt.19-11-2012.
Ex.B14: Original building permission issued by the Commissioner, Nagara Panchayath, Huzurabad, dt. 16-11-2012 with site plan.
Ex.B15: Original Transco Electricity Bill, dt.01-04-2017.
27 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad
Ex.B16: Original receipt of property tax, issued by the Commissioner, Nagara Panchayath, Huzurabad, dt.08-01-2016.
Ex.B17: Receipt of property tax, issued by the Commissioner, Nagara Panchayath, Huzurabad, dt.10-11-2015.
Ex.B18: Original Receipt of property tax, issued by the Commissioner, Nagara Panchayath, Huzurabad, dt.26-11-2014.
Ex.B19: Original Receipt of property tax, issued by the Commissioner, Nagara Panchayath, Huzurabad, dt. 10-06-2013.
Ex.B20: Original assessment payment details for the assessment as on 01- 07-2017 issued by the Commissioner, Nagara Panchayath, Huzurabad, dt.01-07-2017.
Ex.B21: Original NPDCL electricity charges receipt, dt. 11-07-2017.
Ex.B22: Original NPDCL electricity charges receipt, dt.22-07-2017.
Ex.B23: Original NPDCL electricity charges receipt, dt.22-06-2017.
Ex.B24: Original electricity charges paid receipt, dt:28-06-2017.
Ex.B25: NPDCL electricity bill, dt.24-06-2013.
Ex.B26: Electricity charges receipt, dt.19-06-2013.
Ex.B27: Consumption billing collection and arrears history (KVAH), issued by Asst. Accounts Officer, Electricity Revenue Office, Huzurabad, dt.28-06- 2017.
Ex.B28: Original pahani pathrika for the year 2008-2009, dt.08-01-2010.
Ex.B29: Proceedings of Tahasildar, Huzurabad vide No.b/692/2011, in favour of the defendant No.2, dt.17-02-2012.
Ex.B30: Original land valuation certificate issued by the Sub Registrar, Huzurabad, dt.28-07-2017.
Ex.B31: Paper publication published in Eeenadu daily newspaper in Huzurabad edition, dt.01-08-2017.
Ex.B32: Pahani patrika for the year 2008-2009, dt.08-01-2010.
Ex.B33: Adangal pahani for the year 2010-2011 (3) papers, dt.29-10-2022.
Ex.B34: Receipt property tax for the year from 01-04-2015 to 22-10-2022 (16) papers.
Ex.B35: Tap receipt for the year from 04/2017 to 03/2019, dt.27-07-2018.
Ex.B36: Tap receipt for the year from 04/2019 to 03/2021, dt.12-01-2021.
28 OF 28 Judgment in OS.No.123 of 2012 Prl. JCJ, Huzurabad
Ex.B.37: Electricity consumption particulars from January, 2013 to December, 2022 (4) papers, 16-12-2022.
Ex.B38: Certified copy of Application to police, dt.04-10-2022.
Ex.B39: Certified copy of FIR in Cr.No.278/2022 (5) papers, dt.04-10-2022.
Ex.B.40: Certified copy of the plaint in O.S.No.41 of 2013 on the file of
Hon'ble Senior Civil Judges Court, Huzurabad, dt. 18-04-2013.
Ex.B41: Certified copy of registered sale deed doc No.2358/1996, dt.26-04- 1996.
Ex.B42: Certified copy of registered sale deed doc No.3893/1998, dt.03-11- 1998.
Ex.B43: Original water tax payment receipt for the period from 01-04-2021 to 31-03-2023.
Ex.B44: Original house property tax payment receipt for the year 2024-25
dated 16.08.2024.
Sd/-
PRL. JUNIOR CIVIL JUDGE,
HUZURABAD.