1 of 32
OS. No.332 of 2016
IN THE COURT OF THE V ADDL. JUNIOR CIVIL JUDGE –CUM-
PROHIBITION AND EXCISE COURT KHAMMAM
Dated this the 25 th day of April, 2025
Present: Smt. R. SANTHILATHA,
V Addl. Junior Civil Judge-Cum- Prohibition and Excise Court, Khammam.
O.S. No.332 of 2016
Between: Gaddam Laxmikanthamma W/o Bujjaiah @ Buchaiah, Age:70 years, Occ:Household, R/o:H.No.8-7-156, Sukravarapeta, Khammam District.
.....Plaintiff
AND
1.Gaddam Naveen Kumar S/o Laxminarayana, Age:35 years, Occ:Business, R/o:H.No.1-7-80/1, Near Govt Hospital, Yellandu Town, Khammam.
2.Gaddam Rangaiah S/o Late Narsaiah, Age:58 years, Occ:Business, R/o:H.No.6-2-78, Srikrishna Nagar, Khanapuram Haveli, Khammam District.
3.Gaddam Gattaiah S/o Late Narasaiah, Age:61 years, Occ:Gumasta, R/o:H.No.8-7-25, Sukravarapet, Khammam.
4.Gaddam Rambayamma W/o Late Narasaiah, Age:75 years, Occ:Household, R/o:8-7-25, Sukravarapet, Khammam.
.....Defendants
This suit is coming before me for final hearing in the presence of V.Srinivas Rao, advocate for the plaintiff and G.Harender Reddy, advocate for the defendant No.1 & 2, M.V. Varada Chary for defendant No.3 & 4; and the matter having been stood over for consideration till this day, this Court made the following:
:: J U D G M E N T ::
[1].This suit is filed for declaration of title, to declare that the plaintiff is the exclusive owner of the suit schedule property and to recover the possession of the schedule property and also to award costs of the suit.
2 of 32
OS. No.332 of 2016
[2].The gist of the contents of the plaint is as follows:
(i).The plaintiff is the absolute owner and possessor of
Mangalore tiles roofed house bearing No. 8-7-156 along with its open site to an extent of 242.65 Square yards situated at Sukaravari peta,
Khammam city with in the limits of Khammam Muncipal Corporation, out of which an extent of 42.65 Sq.Yds was illegally occupied by the defedants which is suit schedule property.
(ii).The plaintiff further submitted that one Gaddam Venkata
Narayana was the original owner and possessor of house bearing No. 2- 1/6 along with its open site an extent of 242.65 Sq.Yds and he gifted the said house and its open site to his grand-daughter by name Gaddam
Kasamma through a registered Gift Deed No. 437/1952 on 26.09.1952 since then the said Gaddam Kasamma was in peaceful possession and enjoyment of the said house which is a open site. Later the said Kasamma relinquished her rights over the said house and its open site by executing registered Relinquishment deed No. 465/1952 dated 07.10.1952 infavour of her husband by name Gaddam Bujjaiah @ Buchaiah and subsequently she died due to ill health without issues. Subsequently the said Gaddam
Bujjaiah @ Buchaiah performed second marriage with the plaintiff in the year 1960 and since then both the plaintiff and Gaddam Bujjaiah @
Buchaiah led happy marital life and they are in peaceful possession and enjoyment of the said house without any interruption.
(iii).The plaintiff further submitted that on 20.12.1993 the husband of plaintiff Gaddam Bujjaiah @ Buchaiah had executed a will 3 of 32
OS. No.332 of 2016
deed infavour of the plaintiff regarding the said house and its open site, in which he stated that after his demise the said house and its open site devolved to the plaintiff. On 04.04.1994 the husband of plaintiff Gaddam
Bujjaiah @ Buchaiah died leaving behind the plaintiff to succeed the said house and its open site through Will deed dated 20.12.1993, since then the plaintiff is in peaceful possession and enjoyment of the said house and its open site with absolute rights and title.
(iv).The plaintiff further submitted that in order to affect the partition for the children of plaintiff, she got measured the said house and its open site and found that the entire site including the said house comes to 200 Sq.yds out of 242.65 sq.yds towards southern side of the said house and its site an extent of 42.65 sq.yds were illegally occupied by the defendants. Immediately the plaintiff demanded the defendants to handover the possession of 42.65 Sq.Yds, to her but the defendants postpone the matter on different pretext infact the entire house and its site is 242.65 sq.yds, which also evident from the old records since 1952.
subsequently on 26.07.2016 the plaintiff put the matter before the elders and locality people and the elders after thorough verification of documents advised the defendants to hand over the possession of 42.65
Sq.yds to the plaintiff, but the defendants refused to do so and abused the plaintiff in filthy language and also warned her with dire consequences. Hence the present suit.
[3]. Written statement of defendant no.1 and 2:-
(i).The defendant No.1 and 2 filed written statement by denying 4 of 32
OS. No.332 of 2016
the plaint averments and contended that one late Gaddam Gattaiah was the absolute owner of the property to an extent of 303.84 Sq.yds situated at Vanama Kotilingam Vari Veedi, SukraVari Peta, Khammaam and his wife Gaddam Rambayamma along with their 3 sons by name 1. Gaddam
Lakshmi Narayana, 2. Gaddam Rangaiah, 3. Gaddam Gattaiah got partition the said property among themselves vide registered partitioned deed No. 2195/2003 dated 19.04.2003 out of the said partition deed
Gaddam Lakshmi Narayana got ‘A” schedule property and Gaddam
Rangaiah got ‘B’ schedule property and Gaddam Gattaiah got ‘C’ schedule property and his wife Gaddam Rambayamma got ‘D’ schedule property. Gaddam Rangaiah got the share in Municipal house bearing
No. 8-7-154 open place to the extent of 94.39 sq.yards i.e., B schedule property being bounded by East: Municipal Street, West” house of
Gaddam Bujji, north: ‘C’ and D schedule property and South: A schedule property. And Gaddam Rangaiah for his family necessities sold the property to Gaddam Kalpana after receiving the sale consideration and handed over the property and executed the sale deed on 28-07-2008 vide registered sale deed No. 7730/2008, since then Gaddam Kalpana is in absolute possession and enjoyment over the property without any interruption from any body.
(ii).The defendant No.1 and 2 further contends that the said Gaddam
Kalpana is necessary party to the suit and defendant No.2 may be deleted as such suit is bad for non-joinder of necessary parties. The defendants
No.1 and 2 further contends that the plaintiff filed the present suit only in 5 of 32
OS. No.332 of 2016
order to grab the property from the defendants first time he created that the defendants encroached an extent of 42.65 Sq.yds and there is no cause of action for the suit and prayed to dismiss the suit.
[4]. Written statement of defendant no.3 and 4:-
The defendant No.3 and 4 filed written statement by denying the plaint averments and contended that the father of the defendants by name Gaddam Narasaih was the absolute owner and possessor of the house site measuring 305 square yards and after his demise his wife and his 3 sons i.e., defendant No. 1 to 4 got partitioned the said property among them through registered partition deed bearing No. 2195/2003 on 19.04.2003 and defendants constructed RCC building in their respective shares of the property and since then they have been in possession of the property without any interruption. The defendants No.3 and 4 further submits that before partition of the property there was compound wall around entire 305 sq.yds house site and it is well with in the knowledge of the plaintiff and also at the time of partition and construction of the their houses neither plaintiff nor any person raised any objection and for the first time the plaintiff filed this suit with false allegation hence prayed to dismiss the suit.
[5]Basing on the above rival pleadings, my learned predecessor framed the following issues are settled for trial.
1.Whether the plaintiff is entitled for declaration of title in the suit schedule property?
2.Whether the plaintiff is sole declarant of the suit schedule property?
3.To what relief?
6 of 32
OS. No.332 of 2016
[6].However on 12.02.2025 this court re-casted and framed additional issue as the issues settled earlier are not ventilating the real grievance of the parties. The following issues are re-casted and additional issues framed :-
Issue No.4:-
Whether Will deed dated 20.12.1993 said to have been executed by Bujjaiah @ Butchaiah is true valid and binding on the plaintiff?
[7].After recasting the suit and upon framing the additional issues as supra, an opportunity was given to both parties to adduce additional evidence. On behalf of plaintiff PW3 and PW4 were examined and defendant no.1 to 4 reported no further evidence.
[8].To prove their respective contentions PW.1 is examined and Ex.A1 to A9 are marked, further examined PW.2 who is the grandson of plaintiff,
PW3 and PW4 who are witnesses to the Will deed dated 20.12.1993 on behalf of Plaintiff. On behalf of the defendants, the defendant No.1 examined himself as DW.1 and defendant No.3 examined himself as DW2,
Ex.B1 to B10 were marked.
[9].Heard both the learned counsel for the Plaintiff and the learned counsel for the defendant. Perused the material on record.
[10]. Issues No.1, 2 and 4: Since issues 1,2 and 4 are interrelated, they are answered together to avoid repetition of facts and evidence.
[11]. It is the contention of the plaintiff that the plaintiff is the absolute owner and possessor of tiles roofed house bearing No. 8-7-156 along with its open site to an extent of 242.65 square yards situated at Sukravari peta out of which an extent of 42.65sq.yards was illegally occupied by the 7 of 32
OS. No.332 of 2016
defendants. The plaintiff further contends that one Gaddam
Venkatnarayana was the original owner and possessor of the house bearing no. 2-1/6 along with its open site to an extent of 242.65 Sq.yards and he gifted the said house to his grand daughter by name Gaddam
Kasamma through a registered gift deed no. 437/1952 dated 26.09.1952 and since then the Gaddam Kasamma was in peaceful possession and enjoyment of the said house and its open site. Subsequently the said
Gaddam Kasamma relinquished her rights over the said house and its open site by executing a registered relinquishment deed No. 465/1952 on 7.10.1952 in favour of her husband by name Gaddam Bujjaiah @
Buchaiah, later the said Gaddam Bujjaiah @ Buchaiah performed second marriage with the plaintiff in the year 1960 and on 20.12.1993 the husband of plaintiff Gaddam Bujjaiah @ Buchaiah had executed a will deed infavour of the plaintiff regarding the said house and its open site.
Since then the plaintiff is in peaceful possession of the house and its open site and devolved her rights over the suit schedule property through Will deed dated 20.12.1993.
[12].When the suit is filed by the Plaintiff for declaration of her right, title and interest, possession over the disputed property, the burden lies on her to prove the same. To discharge the above burden lies on the
Plaintiff, she herself was examined as PW.1. The Plaintiff as PW.1 filed her evidence affidavit reiterating the plaint averments with regard to her right, title and interest over the disputed property and also about the illegal occupation by the defendants over the said property, Further, in 8 of 32
OS. No.332 of 2016
support of her oral testimony, she exhibited Ex.A1 to A9.
[13]. The plaintiff also examined her grandson as PW2. He filed his evidence by supporting the version of Pw.1 with regard to ownership of
Gaddam Venkatanarayana and about execution of gift deed infavour of his grand daughter Gaddam Kasamma, and execution of relinquishment deed by Gaddam Kashamma infavour of her husband Gaddam Bujjaiah @
Gaddam Butchaiah and further execution of the Will deed by Gaddam
Bujjaiah @ Buchaiah infavour of plaintiff and about the illegal interference of defendants 1 to 4.
[14].The plaintiff contends that the originally one Gaddam
Venkatanarayana was the original owner and possessor of house bearing
No. 2-1/6 along with its open site to an extent of 242.65 Sq.yds and he gifted the said house infavour of his grand daughter by name Gaddam
Kasamma through a registered gift deed No. 437/1952 on 26.09.1952. In order to prove the same the plaintiff relied on Ex.A1. Ex.A1 is gift deed executed by Gaddam Venkata Narayanana infavour of Gaddam Kasamma.
On perusal of Ex.A1 it was executed in Urdu language. The plaintiff filed translated copy of the said gift deed. While marking the Ex.A1 gift deed the counsel for the defendant submitted to mark the gift deed subject to objection since the said document was executed in Urdu language but not in the language of the court. The plaintiff filed translated copy of the said document and the defendant no where disputed the contents of translation filed by the plaintiff. The plaintiff paid stamp duty for Ex.A1 even though it was registered. On perusal of translated copy filed along 9 of 32
OS. No.332 of 2016
with Ex.A1 it was mentioned that the gift deed was registered as No. 437 of 1952 of Book-I dated 26th September, 1952 at SRO Khammam. On perusal of translated copy of Ex.A1 Gift deed it was mentioned in 2nd page last para that Registration endorsement. Where in it is mentioned that “this document gift deed submitted at the office of Sub-registrar, Tq.
Khammam, place: Khammam on 26th September, 1952 A.D Friday at 1.25
P.M. by Gaddam Venkata narayana S/o. Venkata Appaiah (Executant) for the purpose of registration”. It is further mentioned in translated copy as note “ A word in line 4 is doubtful.” From this it is appearing that Ex.A1 was presented for registration. The plaintiff in her chief examination stated that Gaddam Venkat Narayana executed registered Gift deed vide document No. 437/1952 dated 26.09.1952.
[15]. At the outset it is pertinent to mention here that, A gift deed is required to be compulsorily attested in terms of Section 123 of the
Transfer of Property Act, 1882. Section 68 of Indian Evidence Act
makes it mandatory to examine one of the attesting witnesses for the purpose of proving of the execution of a document which is required by law to be attested but such limitation is not applicable in respect of proof of execution of any document which has been registered in accordance with provisions of the Indian Registration Act, 1908 unless the execution is specifically denied. The defendant no where specifically denied Ex.A1.
However on perusal of Ex.A1 translated copy filed along with Gift deed it reveals that Gaddam Venkat Narayana gifted his property situated in house No. 2-10/6, where as the suit schedule property situated in house 10 of 32
OS. No.332 of 2016
No. 8-7-156. The plaintiff no where stated the house number mentioned in Ex.A1 and house number mentioned in suit schedule are one and the same. Further in Ex.A1 except house number the extent and schedule of property was not mentioned. In such a case it is difficult to arrive at conclusion that the defendants occupied/grabbed to an extent of 42.65 sq.yds out of i.e., suit schedule property by taking Ex.A1 in to consideration. Moreover plaintiff did not choose to examine any witnesses or any person to prove the contents of Ex.A1. Hence, Ex.A1 is no way useful to the plaintiff in proving ownership of the suit schedule property.
[16]. In order to prove her contention that after devolving rights by the
Gaddam Kasamma under Ex.A1, she relinquished rights over the property infavour of her husband by name Gaddam Bujjaiah @ Buchaiah for which the plaintiff relied on Ex.A2 and Ex.A3. Though Ex.A2 was marked as
Urdu Gift deed but on perusal of recitals of translated copy filed along with the said deed it reveals that the document is relinquishment deed.
On perusal of Translated copy of Ex.A2 it reveals that Gaddam Kasamma relinquished her rights over the house bearing No. 2-1/6 situated at
Sukravari peta infavour of her husband Gaddam Buchaiah. Ex.A3 is also certified copy of relinquishment deed vide document NO. 465 of 1952 executed by the Gaddam Kasamma infavour of Gaddam Buchaiah. Ex.A2 and Ex.A3 are one and the same. On perusal of Ex.A2 and Ex.A3 the extent and boundaries of the property no where mentioned. The house number mentioned in translated copy of Ex.A2 and Ex.A3 are not one and the same.
11 of 32
OS. No.332 of 2016
[17]. During cross examination PW1 admitted that “It is true in Ex.A1 to A3 it is no where mentioned how much extent of property was devolved to me and further deposed that the eastern boundary mentioned in suit schedule property as road is wrong as per Ex.A1 to A3.” PW2 also admitted that the extent of 242.65 Sq.Yards no where mentioned in Ex.A1 to A3. Hence on perusal of Ex.A1 to A3 the plaintiff failed to establish that the suit schedule property is originally belongs to Gaddam Venkat
Narayana and he gifted the said property to his grand daughter Gaddam
Kasamma and Gaddam Kasamma relinquished her rights over the suit schedule property infavor of husband of plaintiff. The schedule of property and house number mentioned in Ex.A1 to Ex.A3 and the schedule of property mentioned in suit schedule are not one and the same. The plaintiff failed to establish that her husband Gaddam Bujjaiah devolved rights over the suit schedule property through Ex.A2 and Ex.A3 after relinquishment by his wife Gaddam Kasamma.
[18]. The plaintiff further contended that on 20.12.1993 her husband
Gaddam Bujjaiah executed Will deed in favour of her by bequeathing the said house and its open site to her and the said property devolved to her after the demise of her husband. The plaintiff further contended that on 04.04.1994 her husband was died and as per the Will deed dated 20.12.1993 she being beneficiary is in peaceful possession enjoyment of the property with absolute rights and title. The defendant No.1 to 4 no where specifically denied the execution of Will by the husband of plaintiff, but contended that the plaintiff filed to prove the Will dated 20.12.1993.
12 of 32
OS. No.332 of 2016
[19]. In order to prove that the husband of plaintiff Bujjaiah @
Buchaiah executed the Will infavour of plaintiff the plaintiff filed Original
Will dated 20.12.1993 and the same was marked as Ex.A4. When the plaintiff claiming right under Will, the burden is on the plaintiff to prove that the Will is true, valid and binding on the plaintiff. In order to discharge the burden, the plaintiff relied on oral evidence of PW1 to PW4 as well as documentary evidence of Ex.A4.
[20]. The chief examination of PW1 is almost replica of plaint pleadings, which go to show that her husband Gaddam Bujjaiah @ Buchaiah got the schedule property from his first wife Gaddam Kasamma through relinquishment deed vide document No. 465/1952 dated 7.10.1952 and it was bequeathed in her favour by Gaddam Bujjaiah @ Buchaiah under the
Will deed dated 20.12.1993. Further she also produced the original Will
Deed and got it marked as Ex.A4 the contents of which are also corroborating her evidence.
[21]. Under the provisions of Sec.63 of Indian Succession Act, the
Will should be attested by atleast two witnesses and further, the execution of the Will has to be proved by the propounder by examining atleast one of the attestors U/sec.68 of Indian Evidence Act that the executant had either signed or put his thumb impression on the Will in their presence and that, they in turn attested the same in the presence of the executant, and unless it is established, it cannot be said that, the execution and attestation of the Will are duly proved. Further, the proof of the Will stands in a higher degree in comparison to other documents and 13 of 32
OS. No.332 of 2016
there must be clear evidence of the attesting witnesses or other witnesses that the contents of the Will were read over to the executant and after admitting the same to be correct, he put his signature in the presence of the witnesses. It is only after executant puts his signature, the attesting witnesses shall put their signatures in the presence of the executant. So, the onus to prove the Will is on the propounder, and the absence of suspicious circumstances regarding the execution of the Will and proof of testamentary capacity and proof of signatures of the testator as required by law, are sufficient to prove the Will.
[22]. In the present case on hand when the issues are re-casted and an
additional issue was framed with regard to validity of will, the plaintiff
examined PW3 and PW4 who are witnesses and attestors of Ex.A4 Will deed dated 20.12.1993. Therefore, their evidence assumes much significance regarding the execution of the Will under Ex.A4 by Late
Gaddam Bujjaiah @ Buchaiah in favour of the plaintiff.
[23]. The chief-examination affidavit of PW3 and PW4 contains hardly 5 paras and the same is nothing but replica of plaint and chief affidavit of
PW1. With regard to execution of the Will PW3 and PW4 deposed in 4th para and 5th para that “on 20.12.1993 Gaddam Bujjaih @ Buchaiah had executed the Will deed infavour of plaintiff regarding the said house and its open site in his/her presence and Thumma Lakshmi Narayana and
Parsa Satyanarayana @ Satyam and the same was scribed by one Atluri
Ramakishan Rao who is no more and they were acted as attestors.” [24]. Thus, it is clear that the P.W.3 and PW.4 has not stated in their 14 of 32
OS. No.332 of 2016
chief-examination affidavit itself that, the contents of the said Will were read over to the testator, Late Gaddam Bujjaiah @ Buchaiah and he admitted them to be true and thereafter, he put his thumbe impression/singnature thereon as executant. Further, they have not stated in their chief-examination affidavit that the testator put his signature on the Will in their presence and thereafter, the attestors put their signatures as witnesses on it in the presence of the testator, Late Gaddam
Bujjaiah @ Buchaiah. The PW3 and PW4 though stated they acted as attestors and Atluri Rama Krishan Rao scribed the Will, they have not given the details, as to when it was got prepared and where it was got prepared. Further, he has also not stated the place of the execution of the
Will by Gaddam Bujjaiah @ Buchaiah and also the exact time, when it was executed on 20.12.1993. Thus, as rightly argued by the learned counsel for the defendants, it can be said that the chief-examination affidavit of the PW3 and PW4 is not at all sufficient to prove the execution of the Will under Ex.A4 by Gaddam Bujjaiah @ Buchaiah , as it is very vague.
[25]. Further during cross examination PW3 and PW4 deposed that they can not say the house number where Ex.A4 was executed and further deposed that they do not know how the property was devolved to the testator of the Will i.e., to the Gaddam Bujjaiah @ Buchaiah.
According to the evidence of PW3 and PW4 they do not know anything about the recitals of the Will and as such it is clear that that PW3 and 4 are deposing false. Except the evidence of P.W.3 and PW4 there is nothing on record about the execution of the Will under Ex.A4 by Late 15 of 32
OS. No.332 of 2016
Gaddam Bujjaiah @ Buchaiah in favour of plaintiff. Further, the Will under
Ex.A4 also does not reveal that its contents were read over to the executant and after admitting them to be true, he put his thumb impression on it.
[26]. The learned counsel for the defendants argued that the suit schedule property was not mutated on the name of plaintiff basing on the
Ex.A4 Will deed and further argued that Ex.A4 Will deed not brought in to light till filing of the suit and after filing of suit only the plaintiff filed
Ex.A4 Will deed. It is further argued by the defendants that in Ex.A1 to
Ex.A3 the extent of the property not mentioned as 242.65 square yards but for the first time in Ex..A4 Will deed it is mentioned as 242.65 Square yards in house number 8-7-156.
[27]. PW1 during her cross examination deposed that she never made any attempt to survey or measure the suit schedule property after execution of Ex.A4 Will deed and further she admitted that in municipal and revenue records the name of Gaddam Venkat Narayana was reflecting pertaining to the suit schedule property. PW1 further deposed that she did not made any requisition before revenue authorities for mutation of her name in revenue records.
[28]. As rightly contended by the counsels for the defendants on perusal of Ex.A1 to Ex.A3 the extent of property no where mentioned.
More over the house number was mentioned as 2-1/6, where as in Ex.A4
Will deed the house number was mentioned as 8-7-156 to an extent of 242.65 square yards. As per the contention of plaintiff the property 16 of 32
OS. No.332 of 2016
devolved to her husband Gaddam Bujjaiah @ Butchaiah through Ex.A2 and Ex.A3 and Property devolved to Gaddam Kasamma thorugh Ex.A1.
But in Ex.A1 to Ex.A3 and in Ex.A4 the house number is different. Except
Ex.A1 to A3 there is no other document filed by the plaintiff to prove that
Gaddam Venkat Narayana was original owner of the suit schedule property. When there is no reference made with regard to the extent of property in Ex.A1 to Ex. A3 and the plaintiff failed to explain how in Ex.A4 the extent of the property arrived.
[29]. In order to prove her right and title over the suit schedule property the plaintiff further relied on Ex.A5 to A9. Ex.A5 is death certificate of Gaddam Bujjaiah @ Buchaiah, which reveals that Gaddam
Bujjaiah @ Buchaiah died on 04.04.1994. As per Ex.A5 the death of
Gaddam Bujjaiah @ Buchaiah remained undisputed. Ex.A6 is electricity bill, Ex.A7 is water tax receipt dated 21.03.2016 and Ex.A8 is property tax demand notice. Ex.A6 to Ex.A9 all the documents stands on the name of Gaddam Venkat Narayana in respect of house bearing no. 8-7-156. The plaintiff no where stated that the house number was changed from 2-1/6 to 8-7-156. More over the plaintiff no where stated that both house numbers i.e., 2-1/6 and 8-7-156 are one and the same and belongs to the suit schedule property. According to the plaintiff Ex.A1 was executed by
Gaddam Venkat Narayana on 26.09.1952 infavour of Gaddam Kasamma later on 07.10.1952 the said Gaddam Kasamma executed relinquishment deed in favour of the Gaddam Bujjaiah @ Buchaiah under Ex.A2 and
Ex.A3 and he executed the Will deed on 20.12.1993. As per Ex.A1 to A4 17 of 32
OS. No.332 of 2016
the property was transferred to 3 persons i.e., from Gaddam Venkat
Narayana to Gaddam Kasamma and from Gaddam Kasamma to Gaddam
Bujjaiah @ Buchaiah and from Gaddam Bujjaiah @ Buchaiah to plaintiff.
Which means over a period of 6 decades even after several dispositions and alienations the property still stands on the name of Gaddam Venkat
Narayana. As rightly contended by the defendants counsel the plaintiff did not filed any single document to show that the property was mutated on the name of her. The property transferred on the name of Gaddam
Kasamma under Ex.A1 and then transferred to Gaddam Bujjaiah @
Buchaiah under Ex.A2 and Ex.A3. But their names were not mutated in the revenue records even till this date. PW1 herself admitted that she did not made any requisition for mutation of the suit schedule property on her name. Ex.A4 was executed in the year 1993. Over a period of 23 years the plaintiff did not made any attempts to record her name in revenue records by acting upon the Will under Ex.A4 and also not presented the said Will Deed before any authority.
[30]. The plaintiff examined attestor of Ex.A4 the Will deed as PW3.
The counsel for the defendants submitted during the course of arguments that the signature of PW3 on chief examination affidavit is not similar with the signature appearing on Ex.A4/Will deed. During cross examination of PW3 and PW4 the learned counsel for the defendants suggested that signature on Ex.A4 Will deed does not belongs to PW3 and
PW4 and the said suggestion denied by the PW3 and PW4. The defendants did not made any efforts to prove that the signature of PW3 18 of 32
OS. No.332 of 2016
and PW4 differs in Ex.A4/Will deed and not belongs to them. When the defendants disputed the signatures of the attestors on Ex.A4/Will deed the plaintiff has not submitted anything on the said aspect. Both parties did not take any steps to compare the signature of PW3 and PW4 on Ex.A- 4 along with the admitted documents by sending the same to handwriting expert. Under the law, it is always open for the Court to compare the signature on the disputed document with the admitted signatures of the defendant and witnesses (attestors). The rule of prudence and caution requires that, in the first place, expert opinion should be obtained for assistance. If such an opinion is not available, the Court can compare disputed writings and signatures and come to its own conclusion.
[31]. Section 73 of the Indian Evidence Act, 1872, expressly enables the Court to compare disputed writings and signatures with the admitted signatures to ascertain whether the signature of the attestor is that of a person by whom it purports to have signed on the document. Both parties have not opted for comparison of signatures by a handwriting expert. In the case on hand, Ex.A4/Will deed contain the signatures of PW3 and
PW4 and PW3 and PW4 singed in the their chief examination affidavit as well as cross examination, those signatures are not disputed by both the parties.
[32]. The Apex Court in Murari Lal v. State of M.P. observed that the duty of the Court to compare the writings and come to its conclusion cannot be avoided by recourse to the statement that the Court is not an expert. It is thus clear from the above observation of the Hon’ble Apex 19 of 32
OS. No.332 of 2016
Court that under Section 73 of the Indian Evidence Act, the Court can compare disputed and admitted signatures to come to its own conclusion.
[33]. When this court compared the signature of PW3 on Ex.A4 with that of signature of PW3 in her chief examination affidavit and cross examination, on the face of it, disparities were evident between the signature of PW3 in Ex.A4 and in her chief examination affidavit and cross examination. In Ex.A4 in the first attestor column the signature appearing in telugu as “ R. Vijaya Devi” where as in chief examination the signature appears in english. Not only in the language the entire signature it self differing in both places. Hence, as rightly contended by the counsels for the defendants the evidence of PW3 and PW4 clouded with doubts. When the defendants disputed the signature of the PW3 and
PW4 on Ex.A4 Will deed the plaintiff did not choose to take any steps to prove their signatures.
[34]. The defendant further argued that the plaintiff filed Ex.A4 Will deed subsequent to the filing of suit and the said Will is not brought in to light over a period of decade hence, the execution of the Will under
Ex.A4 is under suspicious circumstances. On this aspect the defendant relied on Ram Singh Vs. Ram Swarup (2017) 02 P&H CK 0194,
where in Hon’ble Punjab and Haryana At Chandigarh High court
held that “ the Lower court noticed that though the Will was
stated to have been executed on 5.03.1984 but the document
never came to light for over two decades and the mutation had
been incorporated in the revenue record in 2004 and the plaintiff
20 of 32
OS. No.332 of 2016
had been sitting over the Will and did not claim any right. It noted
that the alleged Will was not scribed by the regular deed writer
and was not presented before any authority for a long time and
was shrouded by suspicion. The thumb impressions were also
disputed and the suit was dismissed”. The Hon’ble P&H High
Court dismissed the appeal by upholding the decision of trial
court by stating will was not proved.” [35].As rightly contended by the learned counsels for the defendants the Ex.A4 Will deed was came in to light only after filing of the suit. The plaintiff no where explained what are the circumstances prevented her to produce the Will before any authority in order to mutate her name in revenue records basing on Ex.A4 Will.
[36]. In Janki Narayan Bhoir Vs. Narayana Namdeo Kadam,
wherein it is held by Hon’ble Supreme court that “Where the
attesting witness is not a position to prove the attestation of the
Will by the second witness, the evidence of all the witnesses
called falls short to the mandatory requirements of Sec. 68 of the
Indian Evidence Act”. The said decision is applicable to the facts of present case. Because in the present suit, the plaintiff have got examined two attesting witnesses as PW3 and PW4 but their evidence is not sufficient to prove the due attestation and execution of the Will by Late
Gaddam Bujjaiah @ Buchaiah therefore, it falls short of the mandatory requirements under the provisions of Sec. 68 of Indian Evidence Act.
21 of 32
OS. No.332 of 2016
[37]. Further, the Hon’ble Apex Court, dated 06.03.2009 passed in
“Yumnam Ongbi Tampha Ibemma Devi, Appellant Vs. Yumnam
Joykumar Singh and Ors. Respondents, wherein the Hon'ble Supreme
Court reiterated that “The propounder has to show that the Will was signed by the testator, that he was at the relevant time in a sound and disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature or thumb impression to the testament of his own free Will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But, there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds, propounder is interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again
in cases where the propounder has himself taken a prominent part
in the execution of the Will which confers on him substantial
benefit that is itself one of the suspicious circumstances which he
must remove by clear and satisfactory evidence.” Further, the 22 of 32
OS. No.332 of 2016
Hon'ble Supreme Court also hold at Para No.46 that “The existence of
suspicious circumstances, it may be held to be sufficient to arrive at a conclusion that the execution of the Will has not been duly proved”.
[38]. The Hon’ble Supreme Court in Girija Datta Singh Vs. Gangotri
Datt Siingh AIR 1955 SC 343 the quoted passage with respect to in what manner the propounder has to discharge the burden to prove the
Will is as under:- "(a) it was signed by the testator in the presence of the two attesting witnesses;
(b) the witnesses should have seen the testator sign the Will, or have been told by him that he had signed it;
(c) The attesting witnesses, or one of them must depose to these facts, in the subsequent probate or other action concerning the
Will. In the absence of attesting witnesses, of course, it is open to the propounder to prove the Will like any other document, provided that proof of the facts mentioned in Section 63 and 68 are led." [39]. The learned counsel for the plaintiff argued that the defendants no where specifically disputed execution of Will by the late Gaddam Bujjaiah @ Buchaiah, hence, the Will is deemed to be proved. Though the defendants not disputed about the execution of the Will by the Gaddam
Bujjaiah @ Buchaiah in their written statement, but during cross examination of PW3 and PW4 the learned counsels for the defendants raised certain aspects which creates doubts in the mind of the this court.
More over merely because some witnesses have been placed and deposed
before the Court in a manner known to law to prove the document, the
23 of 32
OS. No.332 of 2016
Court cannot shut its eyes when other circumstances available on record to find out whether the evidence of the attesting witnesses are true and genuine and whether they actually present at the time of execution of the
Will. In the present case on hand the testator of the Will i.e., Gaddam
Bujjaiah @ Buchaiah died on 04.04.1994 and he executed the Will under
Ex.A4 on 20.12.1993, which is 5 months much prior to the death of the testator. The signatures of the attestors on Ex.A4 will appearing to be doubtful. The attestor of the Will i.e., PW3 and PW4 did not speak any thing about the disposition of the property by the late Gaddam Bujjaiah @
Buchaiah under Ex.A4 Will. The evidence of P.W3 and P.W4 in entirety when read, they have not spoken about whether the Will was read over to
Gaddam Bujjaiah @ Buchaiah at the relevant time. Further the evidence of P.W3 and P.W.4 is in artificial nature and their presence and signing as attesting witnesses is highly doubtful. Therefore, the plaintiff failed to prove execution Will by late Gaddam Bujjaiah @ Buchaiah.
[40]. The defendant further argued that the suit is barred by limitation.
In their written statement the defendants pleaded that one Gaddam
Gattaiah was the absolute owner of the property to an extent of 303/84
Sq.yds situated at Vanam Kotilinga Vari Veedi, Sukarvari peta, Khammam and after the demise of Gaddam Gattaiah his son Gaddam Narasiah and his wife Gaddam Rambayamma along with their 3 sons i.e., Gaddam
Lakshmi Narayana, Rangaiah, Gattaiah partitioned the said property among themselves vide registered partition deed 2195 of 2003 on 19.04.2003 and in that partition Gaddam Rangaiah got the share in 24 of 32
OS. No.332 of 2016
Municipal house no. 8-7-154 to an extent of 94.39 sq.yards. In order to prove their contention the defendant No.1 himself examined as DW1.
DW1 filed his chief examination affidavit by reiterating his written statement averments. Ex.B1 to B4 were marked. Ex.B1 certified copy of
Partition Deed vide document no. 2195 of 2003 executed in between
Gaddam Lakshmi Narayana, Gaddam Rangaiah, Gaddam Gattaiah and
Gaddam Narasaiah by partitioning the property mentioned in Schedule A to D in Ex.B1. The learned counsel for the defendant argued that the plaintiff has to challenge the possession of defendants when Ex.B1 was executed and if Ex.B1 was taken in to consideration the plea of adverse possession Will come in to play and for challenging the same the limitation is 12 years as per Article 65 of Indian Limitation Act. Ex.B1 was executed in the year 2003 and the plaintiff kept silent for all these years and filed the present suit after expiry of limitation. To substantiate the said contention the defendant relied on Vasanthiben P. Nayak & others
Vs. Somnath M. Nayak & ors decided on 9 th March, 2004 where in
the Hon’ble Apex court held that in case of adverse possession,
the starting point of limitation does not commence from the date
when the right of ownership arises to the plaintiff but it
commences from the date when the defendant's possession
became adverse.” [41]. Whereas, the learned counsel for the plaintiff argued that the documents filed by the defendants shows the property of plaintiff as one of the boundary as such the right of the plaintiff over the suit schedule 25 of 32
OS. No.332 of 2016
property was established. On perusal of suit schedule mentioned in the plaint the southern boundary was mentioned as house of Gaddam
Gattaiah and his family. In Ex.B1 partition deed in ‘B’ and ‘C’ schedule which is allotted to Gaddam Rangaiah and Gaddam Gattaiah the Northern boundary was shown as the house of Gaddam Bujji. The plaintiff no where specifically stated which boundary in which document the suit schedule property was shown as one of the boundary of the defendants.
The defendants counsels argued that the suit is barred by limitation if
Ex.B1 is taken in to consideration. According to the defendant Ex.B1 was executed in the year 2003 and the present suit if filed in the year 2016 as such the suit is barred by limitation under Article 65 of Limitation Act.
But the defendants no where pleaded about plea of adverse possession either in the written statement or in the evidence of defendants about adverse possession. No single suggestion was put forth by the defendants about plea of adverse possession while cross examining the plaintiff witnesses. Since the suit is filed for declaration of title by the plaintiff, the right and title of the plaintiff has to be looked in to. The defendant contended about adverse possession only for argument sake can not be considered since there is no specific plea about it. If at all the defendants has any right they are at liberty to follow the procedure established by law. However the plaintiff cannot take advantage of the weakness of the defendants case. The burden is on the plaintiff to prove the suit schedule property devolved to her and she is the owner of the same.
[42]. On perusal of Ex.B1 the defendant No.2 and 3 and the father of 26 of 32
OS. No.332 of 2016
defendant No.1 Gaddam Lakshmi Narayana and the husband of defendant
No. 4 Gaddam Narasaiah partitioned the property ‘A’ to ‘D’ schedule property in respect of house No. 8-7-155, 8-7-154, 8-7-25. Ex.B2 is sale certified copy of sale deed executed by wife of Gaddam Lashmi Narayana
Gaddam Malliswari, Gaddam Naveen Kumar (Defendant No.1) Mididoddi
Srivani infavour of 1. Mohd. Khaja Miya, 2. Mohd. Esaq Ahmad in respect of house situated at No. 8-7-155 which was devolved to the share of
Gaddam Lakshmi Narayana as per Ex.B1. Ex.B3 is certified copy of sale deed executed by Gaddam Rangaiah infavour of Gaddam Kalpana in respect of house situated in house NO. 8-7-154. Ex.B4 is the certified copy of sale deed executed by the Gaddam Kalpana infavour of Pasikanti
Neelamma in respect of the house situated in house No. 8-7-154.
[43]. In order to prove the contention of the defendants the defendant
No.1 examined himself as DW1. DW1 filed his chief examination affidavit by reiterating the averments made in his written statement. During cross examination DW1 deposed that Gaddam Lakhminarayana is elder son of
Gaddam Narasaiah. DW1 admitted that he did not filed any document to show that his grand father devolved right over the property covered under Ex.B1. The learned counsel for the plaintiff suggested that the defendants colluded and created Ex.B1 to B4 On perusal of Ex.B1 to B4 the property of Gaddam Gattaiah was partitioned in between his legal heirs and Ex. B2 to B4 are subsequent alienation made by the share holders basing on Ex.B1. The plaintiff contended that Ex.B1 to B4 are created to grab the property of plaintiff. Ex.B1 is executed in the year 27 of 32
OS. No.332 of 2016
2003. During cross examination PW1 admitted that the house of Gaddam
Gattaiah was situated on the eastern side of suit schedule property and house was also constructed about 50 years back and the legal heirs of
Gaddam Gattaiah I.,e Gaddam Narasaiah and his children partitioned the said house and constructed houses about 20 years back in their respective shares. She further deposed that no survey was conducted on the property of D1 to D4. From the evidence of PW1 it is clear that the plaintiff is having knowledge of partition of property of Gaddam Gattaiah among his legal heirs and about construction of house. But the plaintiff kept silent for these years and filed the present suit in the year 2016. The learned counsel for the plaintiff merely suggested that Ex.B1 to B4 are created to grab the property of plaintiff. But the plaintiff did not file any single document or adduced any material evidence to show that the defendants encroached the property of plaintiff basing on Ex.B1. More over the plaintiff did not challenged any of the document under Ex.B1 to
B4 filed by the defendants.
[44].In order to substantiate the version of the defendants the defendant
No.3 examined himself as DW2. DW2 filed his chief examination affidavit by stating that the suit schedule property is his favour since 1966-67 to till this date, the property is ancestral property of his grand father late
Gaddam Gattaiah and he purchased long back and after his demise his grand father has given the property to his brothers i.e., to Defendant No.
1 to 3 through partition deed under Ex.B1. In order to prove the possession over the property the defendant No.3 filed house tax bills and 28 of 32
OS. No.332 of 2016
same were marked as Ex.B5 to B10. Ex.B5 is house tax bill dated 20.02.1996 in respect of house bearing No. 2-10/4. Ex.B6 is house tax bill
dated 18.03.1884 in respect of house bearing No. 8-7-154 to 155. Ex.B7
house tax bill receipt dated 21.02.1994 in respect of house bearing No. 8- 7-25. Ex.B8 is house tax receipt in respect of house bearing No. 8-7-154.
Ex.B9 and B10 are house tax receipts for the house bearing No. 8-7-25.
During his chief examination DW2 deposed that the suit schedule property is belongs to them. But the defendants no where pleaded that the suit schedule property belongs to them. As per Ex.B1 to B10 the property of defendants situated in house No. 8-7-154, 8-7-155, 8-7-25. But where as the suit schedule property situated in house No. 8-7-156 to an extent of 42.65 square yards out of 242.65 square yards.
[45]. During cross examination DW1 admitted that he did not field any document to show that he is in possession of suit schedule property from 1966-67 to till date as deposed in his chief examination. He further deposed that the suit schedule property is not purchased by his grand father but he devolved rights over the suit schedule property from his ancestors. The defendants no where pleaded that suit schedule property belongs to them. The contention of the defendants from the beginning of filing of written statement is that Gaddam Gattaiah was the absolute owner of the property to an extent of 303.84 sq.yards and the same was partitioned by his legal heirs. The defendants even did not mentioned about survey number or house number of the property partitioned by them in their written statement. For the first time DW1 deposed in chief 29 of 32
OS. No.332 of 2016
examination that the suit schedule property belongs to him. For which there is no single document filed by the defendants to prove the said contention. However it is settled law that in the absence of pleadings, the evidence if any adduced by the parties can not be considered. Though the
DW3 deposed in his chief examination that the suit schedule property belongs to him but the said contention was not pleaded by the defendant
No.3 in his written statement. Hence the same can not be considered.
Though the learned counsel for the plaintiff cross examined DW2 at length but nothing could be elicited in favour of plaintiff to show that the plaintiff is absolute owner of the suit schedule property.
[46]. The Apex court in case of In Nagar Palika, Jind v. Jagat Singh,
Advocate (1995) 3 SCC 426, held as under: the onus to prove title to the property in question was on the plaintiff. In a suit for ejectment based on title it was incumbent on the part of the court is that first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first
before going into any other question that may arise in a suit. But, the
plaintiffs are failed to prove their case with cogent evidence.
[47]. The Hon'ble Supreme Court in a decision reported in
UNION OF INDIA VS. VASAVI CO-OP. HOUSING SOCIETY LTD.
AND OTHERS (AIR 2014 SC 937), while reiterating the principles
and the parameters which govern the relief in a suit for
declaration, in para Nos. 12, 15 of the said judgment has
categorically laid down as under:
30 of 32
OS. No.332 of 2016
It is trite law that in a suit for declaration of title, burden always lies on the Plaintiff to made out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the Plaintiff.
The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the omis on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the Defendants is found against, in the absence of establishment of Plaintiff's own title, Plaintiff must be non-suited.
[48]. Hence, from above decision it is clear that in a suit for declaration of title the burden is always on the plaintiff to establish his title and he can not take advantage of weakness of case of the defendants. And in the present case on hand the plaintiff failed to establish her title over the suit schedule property. The schedule of the property mentioned in the plaint is to an extent of 42.65 square yards out of 242.65 square yards including house No. 8-7-156 situated at Sukravaripeta, Khammam. There is no clarity in the schedule mentioned in the plaint. The plaintiff contends she is the absolute owner of the property basing Ex.A4 Will deed. But the plaintiff failed to prove Ex.A4 and also failed to prove that the property devolved to her basing on Ex.A1 to A4. No single document filed by the plaintiff to prove that the suit schedule property stands on her name and she is the absolute owner and possessor of the suit schedule property. Thus, considering all the above facts and circumstances, this court is of the considered opinion that the Will deed
dated 20.12.1993 under Ex.A4 is not true and invalid and not binding on
the plaintiff and plaintiff is failed to prove that she is the absolute owner 31 of 32
OS. No.332 of 2016
of the suit schedule property and the defendants encroached to an extent of 42.65 square yards out of 242.65 Square yards. Accordingly, the issues
No.1, 2 and 4 are answered negatively against the plaintiff.
[49]. ISSUE No.3: To what relief:
In view of my findings in Issue Nos.1,2 and 4, that this suit deserves to be dismissed with out costs.
[50]. In the result, the suit is dismissed with out costs.
Typed by myself in my Laptop,corrected and pronounced by me in the open Court on this the 25th day of April, 2025.
V ADDL. Junior Civil Judge Khammam.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiffs PW-1:Gaddam Laxmi Kanthamma PW-2: Gaddam Venkateswarulu PW-3: Rajputh Vijaya Devi PW-4: Parsa Satyanarayana @ Satyam For Defendants DW-1:Gaddam Naveen Kumar DW-2: Gaddam Gattaiah
Exhibits Marked
For Plaintiffs Ex.A1: Original Urdu gift deed along with translated copy vide No.467261 Ex.A2: Original Urdu gift deed along with translated copy vide No.467262 Ex.A3: Certified copy of Urdu registered relinquishment deed vide document No.465/1952 along with translated copy Ex.A4: Original will dated 30.12.1993 Ex.A5: Mee seva copy of death certificate of Gaddam Bujjaiah @ Buchaiah dated 06.06.2014 Ex.A6: Electricity bill Ex.A7: Water tax receipt Ex.A8: Property tax demand bill Ex.A9:Aadhar card of Gaddam Laxmi Kanthamma vide No.934692020582. [Note: Ex.A2 is Urdu Relinquishment Deed vide No. 467262 along with translated copy due to inadvertently marked as Urdu Gift Deed.] 32 of 32
OS. No.332 of 2016
For Defendants
Ex.B1: Certified copy of registered partition deed, vide document No.2195/2003, dated 19.04.2003 Ex.B2: Certified copy of registered sale deed, vide document No.1134/2024, dated 05.02.2024 Ex.B3: Certified copy of registered sale deed, vide document No.7730/2008, dated 28.07.2008 Ex.B4: Certified copy of registered sale deed, vide document No.11091/2017, dated 14.12.2017 Ex.B5: House tax bill dated 20.09.1996 Ex.B6: House tax bill dated 18.03.1884 Ex.B7: House tax bill dated 21.02.1994 Ex.B8: House tax bill vide bill No.176775 Ex.B9: House tax bill dated 11.11.1991 Ex.B10: House tax bill dated 04.11.1990
V ADDL. Junior Civil Judge Khammam.
33 of 32
OS. No.332 of 2016