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IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, KADAPA.
Present : Smt. S. Hemalatha,
Principal Senior Civil Judge, Kadapa.
Tuesday, this the 18th day of April, 2023.
Original Suit No.189 of 2010
C. Sambasiva Reddy … Plaintif
Vs.
1. Edula Rama Gopal Reddy
2. A. Veera Reddy
3. K. Jagadeeswara Rao
4. K. Durgamma
5. K. Venkateswara Rao
6. K. Jagadeesh … Defendants
This suit has come up before me on 27.02.2023 for final hearing in the presence of Sri.A.Raja Reddy and Sri.M.V. Bali Reddy, learned counsels for plaintiff, and of Sri.M.Nagi Reddy, learned counsel for defendants 2, 4 and 5, and defendants 1, 3 and 6 remained ex parte; upon perusing the material on record and having stood over for consideration till this day, this Court delivered the following :
:: J U D G M E N T ::
This suit is filed for declaration of right and title of the plaintiff to the suit schedule mentioned property; for permanent injunction restraining the defendants and their men from interfering with the plaintiff’s possession and enjoyment of the suit property; and also for compensation of Rs.5,00,000/- towards damages caused by the defendants by demolishing the compound wall, trees, bore-well and all types of trees in the suit property.
2.The averments of the plaint, in brief, are as follows.
Plaintiff purchased an extent of Ac.0.31 ¼ cents in Sy.No.432/1 situated in Chinnachowk village within the Kadapa Municipal
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Corporation, under registered sale deed dt.12.1.1995. After purchase, the plaintiff constructed class rooms and started running school under the name and style of ‘Sri Saraswathi Vidyanikethan High School’. He had dug a bore-well and raised plantation in the open land and constructed compound wall.
(a)The said extent of Ac.0.31 ¼ cents purchased by the plaintiff is from Manuguri Venkata Subbaiah S/o. Chinna Venkata
Subbaiah, Nallapati Lakshmi Narayana Naidu, S/o. Rama Naidu,
Karanaboina Jagadeeswara Rao, S/o. Lingaiah, Koneru Durgamma,
W/o. Ramachandraiah, K.Venkateswara Rao, S/o.K. Ramachandraiah and K. Jagadeesh, S/o. Ramachandraiah and the vendors 3 to 6 of the plaintiff are represented by their General Power of Attorney Holder
Shaik Kamal Saheb S/o Shaik Chinna Kamal Saheb. The said extent is shown as two items in the schedule to an extent of Ac.0.17¼ cents and Ac.0.14 cents, belonging to the same vendors. There is no dispute with regard to the extent of Ac.0.17¼ cents. On the very same day, another General Power of Attorney is executed in favour of
E.Rama Gopal Reddy in respect of Ac.0.65 cents in the same survey number towards southern side of Ac.0.27 cents, for which G.P.A is executed in favour of Kamal Saheb.
(b)There is no dispute that defendants 3 to 6 are the original owners of Ac.0.65 cents and Ac.0.27 cents, in respect of which
General Power of Attornies are executed in favour of E.Rama Gopal
Reddy and Kamal Saheb. Rama Gopal Reddy shifted his residence and never acted upon G.P.A executed in his favour. He has not sold any extent out of Ac.0.65 cents. The other G.P.A holder Kamal Saheb, in consultation and with the consent of the owners, levelled Ac.0.65 cents and Ac.0.27 cents and made it a single plot. He sold Ac.0.31 ¼ cents of land in two bits adjoining each other to the plaintiff on 12.1.1995. The plaintiff mortgaged the property and availed loan for construction. He has been running school in the said land.
Defendants 3 to 6 have given consent and ratified the action of Kamal
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Saheb in levelling the entire land and selling Ac.0.31 ¼ cents to the plaintiff. Subsequent to the sale also, they never raised any objection when the school buildings and compound wall are constructed. Later, in the month of December, 2004 after the death of Kamal Saheb they raised a dispute regarding Ac.0.14 cents. Then the plaintiff filed suit in O.S.No.232/2004 on the file of the Court of Additional Senior Civil
Judge, Kadapa for permanent injunction and it is pending. Temporary
injunction is also granted in favour of the plaintiff and it is subsistence. In the written statement filed in the said suit on 21.3.2005 they have taken a stand that they have executed General
Power of Attorney in favour of Kamal Saheb on 20.9.1993 authorizing him to deal with and dispose of an extent of Ac.0.27 cents in
Sy.No.432/1 with specific boundaries adjoining the main road.
(c)While the things stood thus, defendants 1 to 6 colluded together and by conspiring with the 2nd defendant got executed the registered sale deed through the 1st defendant for an extent of
Ac.0.65 cents on 27.6.2005 and started giving trouble to the plaintiff.
On 26.5.2007 the 2nd defendant along with some other antisocial elements have highhandedly trespassed into the school premises with a proclainer and demolished the structures existing in an extent of Ac.0.14 cents, damaged the trees and compound wall and caused loss to an extent of Rs.5,00,000/-. Therefore, the plaintiff lodged a criminal case in Chinnachowk police station, which was registered in
Cr.No.105/2007 for the offences punishable under Sections 447, 427 and 506 IPC. The plaintiff also filed I.A.No.27/2008 in O.S.No.232/2004 to implead the 2nd defendant as one of the defendants in that suit and the application was dismissed on 27.1.2010 observing that the plaintiff has independent cause of action against the proposed party and he has to file a separate suit for damages. The defendants have conspired together and caused damage by demolishing the structures, compound wall and trees and bore-well. Therefore, the
Page 4 of 24 O.S.189/10 estimated cost of the damages is Rs.5,00,000/-. All the defendants are jointly liable to pay the damages.
(d)The plaintiff is a bonafide purchaser of the suit property.
He purchased it for construction of school building and he obtained permission from the Municipality and raised construction. The sale deed in favour of the plaintiff is executed on behalf of defendants 3 to
6. From their own conduct, the defendants are estopped from raising any objection at this belated stage. The plaintiff has perfected right over the suit property. The sale consideration is received by the G.P.A holders of defendants 3 to 6 and it is not disputed by the original owners. The sale deed executed by the 1st defendant as G.P.A
Holder of defendants 3 to 6 in favour of the 2nd defendant on 27.6.2005 is brought into existence with a malafide intention during pendency of O.S.No.232/2004. It is non-est in the eye of law and not binding on the plaintiff. Thus, the plaintiff filed the suit seeking appropriate reliefs in this regard.
3.Defendants 1, 3 and 6 remained ex-parte. Defendants 2, 4 and 5 together filed written statement opposing the suit. The contentions in the written statement, in brief, are as follows. The plaintiff is not in possession of suit property and his claim is barred by proviso to Section 34 of Specific Relief Act. Therefore, the suit has to be dismissed in limini. Earlier, the plaintiff filed O.S.No.232/2004 on the file of the Court of Additional Senior Civil Judge, Kadapa claiming permanent injunction in respect of the self-same property and the same is pending for disposal. It is not known as to why he filed a separate suit for declaration of title though he is not in possession of suit property. At least he could have amended the earlier suit in
O.S.No.232/2004 by converting into a declaratory suit. Therefore, the
suit is not maintainable and as the matter is already sub judiced, it is hit by Section 10 of C.P.C.
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(a)The plaintiff suppressed all the material facts and filed the suit twisting the facts. The allegations regarding the source of his alleged title are vague and ambiguous. Neither the plaintiff nor the
General Power of Attorney Holder have any right over the disputed property to an extent of Ac.0.14 cents in Sy.No.432/1 of Chinnachowk village.
(b)Plaintiff claimed Ac.0.17 ¼ cents out of Ac.1.20 cents in
Sy.No.432/1 and Ac.0.14 cents out of Ac.0.27 cents and out of Ac.1.10 cents in the same survey number and confined to Ac.0.14 cents only for the purpose of grant of injunction. There are two distinct and separate extents in survey number 432/1. An extent of Ac.1.20 cents out of the total extent of Ac.6.80 cents and an extent of Ac.1.10 cents out of the total extent of Ac.6.10 cents exists in Sy.No.432/1. They have got separate boundaries. The extent of Ac.1.20 cents was purchased by two individuals by names Manuguru Venkata Subbaiah and Balapati Lakshmi Narayana Naidu under registered sale deed dt.24.1.1986 from K. Mariyanandam. The extent of Ac.0.17 ½ cents falls within the extent of Ac.1.20 cents. There is no dispute regarding the said extent of Ac.0.17 ¼ cents, so far as defendants 2, 4 and 5 are concerned.
(c)The disputed extent of Ac.0.14 cents falls out of Ac.1.10 cents. It originally belonged to the 3rd defendant and the husband of the 4th defendant. Defendants 5 and 6 are the children of the 4th defendant. The 3rd defendant and husband of the 4th defendant purchased an extent of Ac.1.10 cents under registered sale deed dt.24.1.1986 from K. Mariyanandam W/o.Jogi Reddy. Thus, the common owner Mariyanandam sold the extent referred above to separate individuals. Ac.1.10 cents purchased by 3rd defendant and the husband of the 4th defendant namely K. Ramachandra Rao is situated on the eastern side of Ac.1.20 cents. Both properties are abutting Kadapa – Rajempet road on its south.
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(d)While so, one of the vendors of Ac.1.10 cents by name K.
Ramachandraiah died leaving behind defendants 4 to 6. During his lifetime a temple was constructed abutting main road. Defendants used to enjoy the property jointly without partition. All of them have executed a General Power of Attorney on 20.9.1993 in favour of one
Kamal Saheb, authorizing him to deal with and dispose of the extent of Ac.0.27 cents with specific boundaries i.e. on the East : land of
Lingala Jayamma, West : Land of Manuguri Venkata Subbamma and
North : Davelam madi and road and South : Remaining land of defendants in the same survey number. The said Ac.0.27 cents situated adjoining the main road after the temple and land meant for the temple and the said extent of Ac.0.27 cents cannot be termed as front side portion of Ac.1.10 cents.
(e)On the very same day, defendants executed a separate
General Power of Attorney in favour of one E.Rama Gopal Reddy in respect of Ac.0.65 cents out of Ac.1.10 cents to deal with and dispose of the same with the boundaries as East : land of Lingala Jayamma,
West : Land of Manuguri Venkata Subbaiah, North : Remaining land in the same survey number of defendants and South : land in D.No.434.
The said extent of Ac.0.65 cents, which is subject matter of General
Power of Attorney, is on the southern side of Ac.0.27 cents and it can be termed as rear side portion of Ac.1.10 cents.
(f)Kamal Saheb had power of dispose of Ac.0.27 cents only within the boundaries referred in the G.P.A. The plaintiff illegally obtained registered sale deed for an extent of Ac.0.14 cents of vacant site, which falls in Sy.No.65 to annex his property. This fact came to light when the defendants recently levelled their land by removing the cheeky bushes and when the plaintiff claimed the said land.
Kamal Saheb has no right to sell Ac.0.14 cents to the plaintiff and therefore, the plaintiff will not derive any right and title to the said extent. Kamal Saheb was gained over by the plaintiff. It is settled law that no one can convey a better title than what he has. The plaintiff
Page 7 of 24 O.S.189/10 suppressed all the material facts and approached the Court as if he is the owner of the property in dispute.
(g)Though defendants executed General Power of Attorney in favour of E.Rama Gopal Reddy i.e. the 1st defendant, he did not sell any extent out of Ac.0.65 cents. Still it vests with the defendants.
They have been in possession and enjoyment of the said extent of
Ac.0.65 cents. Their agent settled in Hyderabad. The plaintiff is not in possession and enjoyment of any strip of land in an extent of Ac.0.14 cents nor any he has legal right to possess it.
(h)The plaintiff obtained ex-parte injunction by twisting the facts. He is intending to raise pucca structures under the guise of ex- parte injunction. He is not entitled for injunction against true owners.
He failed to approach the Court with clean hands. He has no manner of right, title or interest over the suit property. He has no cause of action to file the suit. Thus, the suit is liable to be dismissed with costs.
4.Based on the above pleadings, the following issues and
additional issues were settled for trial :
Issues :
1) Whether the plaintif is entitled for permanent injunction, as prayed for?
2) To what relief?
Additional issues framed on 25.4.2016:
1. Whether the plaintif is entitled for the relief of
declaration of his right and title over the suit schedule
property ?
2. Whether the defendants 3 to 6 have executed a
registered general power of attorney dated 20.9.1993 in
favour of their agent Mr.Kamal Sab for the extent of
Ac.0.27 cents situated in suit survey number 432/1?
3. Whether the present suit filed by the plaintif is hit by
the doctrine of res judicata, as per Section 10 CPC by
reason of fact that he filed a suit in O.S.No.232 of 2004
on the file of the Hon’ble Court in respect of suit
schedule property against the defendants 3 to 6 herein
for grant of permanent injunction ?
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4. Whether the plaintif is entitled to claim for recovery
of compensation of Rs.5,00,000/- as damages from the
defendants ?
5. To what relief ?
Additional Issues framed on 12.12.2018 :
1. Whether the plaintif is entitled to declaration of right and title in respect of the suit property?
2. Whether the plaintif is entitled for damages of
Rs.5,00,000/-, as prayed for by the defendants?
5.On behalf of the plaintiff, P.Ws.1 to 4 are examined and
Exs.A.1 to A.28 are marked. On behalf of the defendants 2, 4 and 5
D.Ws.1 and 2 are examined and Exs.B.1 to B.5 are marked.
6.Heard learned counsel for both the parties and perused the material on record.
7.Additional issue No.1 to 3 framed on 25.4.2016 and
additional issue No.1 framed on 12.12.2018: Since these issues
are interconnected, they are answered together. As these issues are main issues, they are taken up first.
As seen from the respective pleadings and documents, admittedly, there are two bits of land to an extent of Ac.1.20 cents on western side and Ac.1.10 cents on the eastern side in Sy.No.432/1 of
Ramanjaneyepuram village of Chinna Chowk village fields, now merged with Municipal Corporation, Kadapa, and it originally belonged to one K.Mariyanandam. It is also an admitted fact that under the originals of Ex.A16, K.Mariyanandam sold Ac.1.20 cents to one K.Venkata Subbaiah and Nelapati Lakshmi Narayana Naidu.
Similarly, on the same day, under the original of Ex.A17,
Mariyanandam also sold the eastern bit of Ac.1.10 cents to the 3rd defendant and husband of the 4th defendant and father of defendants 5 and 6, by name K.Ramachandraiah. It is also an admitted fact that defendants 3 to 6 have executed the original of Ex.A15 registered
Page 9 of 24 O.S.189/10 general power of attorney in favour of one Shaik Kamal Saheb authorising him to deal with Ac.0.27 cents, out of Ac.1.10 cents and similarly, they also executed the original of Ex.B1, registered general power of attorney in favour of the 1st defendant, authorising him to deal with the southern bit of Ac.0.65 cents covered by the said extent of Ac.1.10 cents.
8.Plaintiff claims to have purchased an extent of Ac.0.17 ¼ cents out of Ac.1.20 cents situated on the western side and Ac.0.14 cents out of Ac.1.10 cents, out of Ac.0.27 cents, totalling an extent of
Ac.0.31 ¼ cents under the original of Ex.A1 = A14 from Manubolu
Venkata Subbaiah, Nalapati Lakshmi Narayana Naidu, and defendants 3 to 6 through their agent Kamal Saheb. He also claims to have obtained approval from the Gram Panchayat concerned under Ex.A18 for construction of school building and claims to have constructed it.
He also claims to have been paying necessary taxes and charges under the originals of Exs.A23 to A26 and thereby claims to have been in possession and enjoyment of the total extent, including the suit property of Ac.0.14 cents. He further alleges that the 1st defendant did not act upon the original of Ex.B1, that Kamal Saheb with the consent of defendants 3 to 6 levelled the total extent covered by Exs.B1 and A15 by merging them, made it compact bit and sold Ac.0.14 cents to the plaintiff, that defendants 3 to 6 received consideration from Kamal Saheb and ratified the sale. He further alleged that by colluding together, defendants brought into existence of the original of Ex.A2 = B2, a nominal sale deed and under the guise of the same, the defendants have denied the right and title of plaintiff to the suit property, by falsely claiming that the suit property is part and parcel of Ac.0.65 cents and they also highhandedly demolished the structures, compound wall, and damaged the trees and bore-well existed in the suit property. Thus, the plaintiff seeks to declare his right and title to the suit property, apart from other reliefs sought by him.
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9.Defendants did not dispute execution of Exs.A1 = A14 in faovur of the plaintiff in respect of the total extent of Ac.0.31 ¼ cents.
They also did not dispute the plaintiff's right, title and possession of an extent of Ac.0.17 ¼ cents covered by Ex.A1 = A14. The dispute is regarding the extent of Ac.0.14 cents covered by the said sale deed, which is the suit property. It is their specific contention that under the original of Ex.A15, Kamal Saheb had authority to sell only Ac.0.27 cents, but without any authority he sold Ac.0.14 cents out of Ac.0.65 cents situated on the southern side, which is covered by the original of Ex.B1. Thereby, they contend that by virtue of Ex.A1 = A14, the plaintiff cannot claim any right and title to the suit property. Apart from denying the right, title and possession of the plaintiff to the suit property, they also contend that by virtue of the original of Ex.A2 =
ExB2, the 1st defendant, as agent of defendants 3 to 6, sold the total southern bit of Ac.0.65 cents to the 2nd defendant and therefore, the 2nd defendant became absolute owner of the said extent. Apart from the above aspects, they also contended that the suit is barred under
Order II Rule 2 CPC and hit by Section 10 CPC and also barred by limitation.
10.In view of the above contentions of defendants, before adverting into the title of the plaintiff, I would deal with the maintainability of suit. The respective pleadings and documents depict that the plaintiff filed O.S.No.232 of 2004 on the file of the court of learned Additional Senior Civil Judge, Kadapa, in respect of the suit property against defendants 3 to 6 seeking permanent injunction. Ex.A3 is the certified copy of the plaint and Ex.A4 is the certified copy of written statement in the said suit. A perusal of Ex.A3 discloses that facing threat of dispossession in the hands of defendants 3 to 6 and threat of demolition of structures existed in the suit property, plaintiff sought for permanent injunction to restrain defendants 3 to 6 from interfering with his possession and enjoyment
Page 11 of 24 O.S.189/10 of the suit property. However, in this suit, the plaintiff alleges that after institution of the said suit, defendants colluded together and brought the original of Ex.A2 = B2 into existence and under the guise of the same, they denied the right of plaintiff by falsely claiming that the suit property is part and parcel of Ac.0.65 cents and 2nd defendant has demolished the structures and damaged the bore-well, trees, etc., in the suit property. He joined defendants 1 and 2 also in this suit with fresh cause of action.
11.As per Order II Rule 2 of C.P.C, every suit shall include the whole claim which the plaintiff is entitled to make in respect of the cause of action, but the plaintiff may relinquish any portion or his claim in order to bring the suit within the jurisdiction of the Court.
Sub-Rule (2) of Rule 2 of Order II CPC envisages that where the plaintiff omits to sue or intentionally relinquishes any portions of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. In the case of Dr.Amit Kumar v. Dr.Sonila and others, reported in 2019 (1) ALD 110 (SC), the Hon’ble Supreme
Court explained the scope of Order II Rule 2 CPC and bar to institute subject suit with same cause of action.
12.Reverting to the case on hand, undoubtedly, the cause of action and relief sought in both the suits is entirely different.
Admittedly, by the date of filing O.S.No.232 of 2004, the original of
Ex.A2 = B2 was not in existence and in fact, the cause of action for damages according to the plaintiff arose only during the pendency of the said suit. No doubt, as seen from Ex.A4, defendants taken the same plea which is taken in this suit. However, that it would not attract Order II Rule 2 of CPC. As such, the bar under the said provision is not applicable to the present suit. Therefore, the said objection is not sustainable.
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13.As regards applicability of Section 10 of CPC also, when the cause of action, issues and reliefs are distinct, the doctrine of res subjudice under Section 10 CPC is not applicable. In the case of
Amrutlal and Company, Merchants and Commission Agents v.
Rankids Impex Private Limited, reported in 2015 (1) ALT 730while interpreting Section 10, CPC, the Hon’ble High Court held that Section 10 CPC can be invoked to stay the subsequent suit only where the whole of the subject matter in the previous suit and the subsequent suit is identical and where the decision in the previous suit operates as res judicata in the subsequent suit and it is it is not sufficient if only few of the matters in issue are common. In view of the ratio laid down in the above referred case, when the issues and reliefs are different and when earlier suit is only for bare injunction with different cause of action, Section 10 CPC is not applicable to the present case.
14.The other objection is limitation for filing this suit. No doubt, as seen from Ex.A4 written statement, which was filed in the year 2005, defendants 3 to 6 contended that suit property is part and parcel of Ac.0.65 cents, that Kamal Saheb had no right or authority to sell the said extent and therefore, the plaintiff has no title to the suit property. Be that as it is. Admittedly, the plaintiff did not seek declaration simplicitor. As seen from Ex.A5 certified copy of the affidavit and petition in I.A.No.27 of 2008 in O.S.No.232 of 2004 plaintiff alleged that on 26.5.2007 the 2nd defendant along with his men has damaged the structures, bore-well and trees existed in the suit property. He thereby sought to implead the 2nd defendant as 5th defendant in the said suit. Under Ex.A7 order, the said request was rejected by holding that the 2nd defendant did not claim right, title or possession over the suit property, that the said suit is for injunction simplicitor and cause of action is different. Later, the plaintiff filed this suit within three years from the date of alleged damage, seeking declaration, permanent injunction and also damages with fresh and different cause of action.
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15.Further more, as rightly pointed out by the learned counsel for the plaintiff, when the suit is not for bare declaration, Article 58 of the Limitation Act does not attract. Further, as per the ratio laid down by the Hon’ble High Court of A.P., in the case of Gottumukkala
Sundara vs. Pinnaraju Venkata Narasimharaju, reported in
(2016) 2 ALT 497, when the suit for declaration coupled with further relief of permanent injunction or possession is sought, Article 58 of
Limitation Act is not applicable. So, this suit is within the period of limitation.
16.Now the main aspect to be seen is whether the plaintiff has proved that the suit property is part and parcel of Ac.0.27 cents covered by Ex.A15, and thereby he got right and title to the suit property. In order to prove his right, title and possession, the plaintiff has relied on his evidence, as P.W.1. In his evidence, he has reiterated that the suit property is part and parcel of Ac.0.27 cents covered by
Ex.A15. P.W.2 is one of the executants of the original of Ex.A1=A14,
P.W.3 is one of the attestors of sale deed of plaintiff and P.W.4 claims to be the Teacher in the school of plaintiff. In the chief-examination,
P.Ws.2 to 4 supported the version of plaintiff. Thereby, they too spoke that suit property is part and parcel of Ac.0.27 cents, but not Ac.0.65 cents and Kamal Saheb was very much authorised to sell the suit property to the plaintiff. Coming to P.W.4, his evidence is only to prove the trespass and damage of the structures by the 2nd defendant. Similarly, the defendants got examined the 2nd defendant as D.W.1 and the 1st defendant as D.W.2. They too have reiterated their pleadings in their evidence. Be that as it is.
17.No doubt, as seen from Ex.A1=A14, the extent of Ac.0.14 cents covered by the suit schedule is shown to be part and parcel of
Ac.0.27 cents, regarding which GPA is given to Kamal Saheb. P.W.1 admits the boundaries for the total extent of Ac.1.20 cents and
Ac.1.10 cents. As seen from Exs.A16 and A17, which are pertaining to
Page 14 of 24 O.S.189/10 the total extent, the southern boundary is the land bearing Sy.No.434 and northern boundary is Kadapa-Rajampeta Road. In fact, as observed supra, P.W.1 admits the boundaries. As per his admission and as seen from Exs.A15 and B1, the southern boundary in Ex.B1 is land in Sy.No.434 and southern boundary in Ex.A15 is the remaining land of the executants. So, towards southern side of Ac.0.27 cents covered by Ex.A15, there is no land of third party or Government.
Interestingly, the southern boundary in Ex.A1=A14 refers to the land of one land of one Vadde peddanna. Admittedly, Vadde Peddanna is not the purchaser of any bit of land covered by the suit schedule survey number. In fact, during course of arguments, learned counsel for the plaintiff submitted that land possessed by Vadde Peddanna is a government land. So, as rightly argued by the learned counsel for the defendants, the southern boundary itself substantiates that the property covered by Ex.A1 is on the southern side of the total extent, but not either middle or northern portion. Even the evidence of P.W.2, one of the vendors of the plaintiff regarding the extent of Ac.0.17 ¼ cents proves the same. P.W.2 states that entire land purchased by him to an extent of Ac.1.20 cents was made into two bits, that the southern boundary of the land of Ac.0.17 ¼ cents there is land bearing Sy.No.434 and the remaining land after sale to the plaintiff under Ex.A1 is situated towards northern side.
18.It is the specific case of the plaintiff that the total extent of
Ac.0.17 ¼ cents and suit property (Ac.0.14 cents) have common boundaries and both the plots are adjacent to each other. So, the southern boundary in Ex.A1=A14 and the above statement of P.W.2 makes it clear that suit property is also situated towards southern side i.e, to the north of Sy.No.434. Admittedly, Kamal Saheb was authorised to sell the land situated towards northern side of Ac.0.65 cents only, and he has no right or authority to sell any extent of land in Sy.No.0.65 cents. In fact, as pointed out by the learned counsel for the defendants, the plaint pleading about Kamal Saheb clubbing both
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Ac.0.27 cents and Ac.0.65 cents and selling the land and ratification by defendants 3 to 6 about the said sale, indicates that as the suit property is not out of Ac.0.27 cents, plaintiff introduced the said pleading to project consent of defendants 3 to 6 to sell the suit property.
19.Plaintiff further relied on Ex.A19 legal opinion for availing loan, Ex.A18 approved plan for construction of school, Ex.A20 tax receipt, Ex.A21 proceedings of District Education Officer for running school, Ex.A22, common examination marks register of students of school, Ex.A23 house tax demand notice, Ex.A24, electricity bill,
Ex.A25 water tax demand notices and bills, Ex.A26 property tax receipt, to show that by obtaining necessary approval, he constructed the school building and Ex.A19 legal opinion also supports the flow of title of the plaintiff and the above documents establish his possession and enjoyment of the total extent purchased under Ex.A1=A14.
20.Undoubtedly, Ex.A19 legal opinion will not give any right to the plaintiff when Kamal Saheb had no right to sell the southern portion. Similarly, in Ex.A18, the approval is not for the total extent of Ac.0.31 ¼ cents. Similarly, payment of taxes, and other charges will not help the plaintiff to prove his title in respect of disputed extent. In fact, it is the specific contention of the defendants that the building regarding which approval is obtained and taxes are paid is situated on the western side of the total extent, but not concerning the suit property. In fact, as per the schedule and plaint pleading in
O.S.No.232 of 2004, the building is situated on the western side.
However, it is the contention of the plaintiff that on the eastern side two rooms were constructed, that he dug bore well purchased under
Ex.A12 and planted trees. Therefore, those receipts will not be helpful to the plaintiff to establish his title.
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21.Learned counsel for the plaintiff vehemently argued that at the time of execution of sale deed in the year 1995, construction of building with compound wall, availing loan and establishing school, defendants 3 to 6 did not raise any objection, as with their consent and knowledge Kamal Saheb sold the suit property and only after death of Kamal Saheb, defendants colluded together and denied the title of the plaintiff. Learned counsel has also drawn the attention of this court to Ex.A28 judgment in O.S.No.232 of 2004, Ex.A27 photographs. Learned counsel for the plaintiff further pointed out that the entire cross-examination of P.W.1 is focused on the authority of
Kamal Saheb and no suggestion is put to P.W.1 to the effect that the suit property is part and parcel of land of the 2nd defendant. Learned counsel also pointed out the statement of D.W.1 about surveying the land and not filing its report and also not challenging the order on
I.A.No.133 of 2021 filed for appointment of commissioner.
22.On the other hand, learned counsel for the defendants argued that defendants were not aware of execution of Ex.A1 till they tried to remove the cheeky bushes and when plaintiff objected and therefore, it does not amount to consenting for sale, that the judgment under Ex.A28 is not binding on this court, when particularly it is pending in appeal and it is for bare injunction, that mere exhibiting Ex.A27 does not amount to its proof. Learned counsel further pointed out that in a suit for declaration burden is on the plaintiff to establish his title, that the defendants made attempt to locate the property instead of plaintiff, but the plaintiff opposed and though the defendants did not challenge the order on I.A.No.133 of 2021, it will not help the plaintiff. Thus, the learned counsel argued that the plaintiff cannot seek a declaratory decree based on the weakness in the case of defendants.
23.I find force in the contentions of the learned counsel for defendants. Having approached the court seeking declaration of title,
Page 17 of 24 O.S.189/10 it is the plaintiff who has to establish his right and title to the suit property and he cannot depend on the weakness in the case of defendants, as held by the Hon’ble Supreme Court in the case of
Union of India Vs. Vasavi Cooperative Housing Society
Limited, reported in 2014(2), ALD, 157 (SC) = (2014) 2 SCC 269.
Merely because the defendants did not object while getting approval for construction of building, availing loan or establishing school, he cannot claim any right and title. When the defendants specifically pleaded in O.S.No.232 of 2004 and this suit that suit property is part and parcel of Ac.0.65 cents, but not Ac.0.27 cents, plaintiff ought to have localised the property through a competent surveyor proving that the suit property is within the extent covered by Ac.0.27 cents.
He has not done so. On the other hand, a perusal of record discloses that though the defendants moved I.A.No.133 of 2021 seeking appointment of commissioner with the assistance of surveyor to locate the property covered by Exs.A14 and A15 stating that both are distinct, he opposed the application instead of consenting. Even in fact in the order also it is observed that the plaintiff claimed title not only based on Ex.A15 but also based on the alleged ratification of sale made by Kamal Saheb. Therefore, it clinches that though the burden is on the plaintiff, defendants wanted to clear the cloud, but plaintiff did not cooperate. As such, merely because defendants did not challenge the said order, it cannot be presumed that the suit property is within Ac.0.27 cents. Similarly, merely because though
D.W.1 (who is the 2nd defendant) has stated that the survey is conducted, and has not filed any report, it will not be helpful to the plaintiff to discharge his burden.
24.No doubt, as seen from Ex.A28, the 5th defendant, who is examined as D.W.1 has admitted plaintiff’s possession and enjoyment of the suit property and based on the documents of the plaintiff and such admission, the relief of permanent injunction was granted.
Undoubtedly, the judgment under Ex.A28 has not attained finality
Page 18 of 24 O.S.189/10 and it is pending appeal. Further, in this comprehensive suit, plaintiff has to prove his title independently. Even his mere possession will not prove his title. In spite of thorough cross-examination of D.W.1, nothing could be elicited from D.W.1 to prove that suit property is part and parcel of Ac.0.27 cents. An objection is also raised when
Exs.B1 to B4 are exhibited stating that conditions under Section 65 of
Indian Evidence Act are not complied and therefore, Exs.B1 to B4 are inadmissible. As seen from Ex.B5, the originals of Exs.B1 and B2 are deposited in the bank. Therefore, objection regarding Exs.B1 and B2 are not sustainable. As regards Exs.B3 and B4, which are the certified copy of gift deed and rectification deed executed by the 2nd defendant in favour of his wife, no foundation is laid in the pleadings for adducing secondary evidence. Therefore, Exs.B3 and B4 shall be excluded. Even if they are excluded, they are executed pending the litigation and they have no bearing on this suit.
25.Be that as it is. During the cross-examination of D.W.1 and arguments, it is tried to elicit that the property covered by Ex.B2 sale deed of the 2nd defendant is situated at Buddayapalli, which is far away from the suit property and D.W.1 has no knowledge about location of his property. It is quite contrary to the plaint pleadings and is baseless. It is the specific plea of plaintiff that Ex.A2=B2 is in respect of Ac.0.65 cents, but not some other property. Similarly, it is tried to elicit that Ex.B2 is collusive document without consideration to defeat the right of plaintiff. When according to the plaintiff he is concerned with only Ac.0.14 cents out of Ac.0.27 cents, it is not known as to what is the grievance he has if Ex.B2 is executed for the extent of Ac.0.65 cents. Similarly, merely because the defendants did not prefer any counter claim, it cannot be inferred that the plaintiff has right and title to the suit property and as defendants have no right and title, they did not prefer any counter claim.
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26.Similarly, it is also tried to point out from D.W.2 that since execution of the original of Ex.B1 till execution of Ex.A2=B2, the 1st defendant did not exercise any right and he executed Ex.A2=B2 only after O.S.No.232 of 2004 is filed. It is also tried to elicit from D.W.2 that in view of execution of sale deeds by his principals, the GPA is ceased. However, as observed supra, the plaintiff is no way concerned with Ac.0.65 cents and GPA executed in faovur of D.W.2 (1st defendant). Therefore, it is between defendants 3 to 6 and DW.2.
27.Further, plaintiff also relied on Ex.A8 to A10 and Ex.13, the certified copy of complaint, FIR and protest petition in C.C.No.76 of 2008 and paper publication to show his possession and enjoyment of the suit property since long time and demolition of structures by the defendants. Undoubtedly, Exs.A8 and 10 are self-serving documents.
Further, admittedly, the criminal case in C.C.No.76 of 2008 ended in acquittal. As such, these documents are not helpful to the plaintiff.
Thus, except his self-serving evidence, the plaintiff has not proved that the suit property is part and parcel of Ac.0.27 cents and he acquired right and title to the suit property by virtue of Ex.A1=A14 executed by Kamal Saheb on behalf of defendants 3 to 6. On the other hand, the above discussion makes it clear that the disputed extent is not part of Ac.0.27 cents and it is out of Ac.0.65 cents. As such, the plaintiff failed to prove his right and title to the suit property. Accordingly, these issues are answered.
28.Issue No.1: Plaintiff sought to restrain the defendants from interfering with his possession and enjoyment of the suit property. In view of the findings on the above issues, the plaintiff failed to prove his right and title to the suit property. On the other hand, it is found that the extent of Ac.0.14 cents claimed by him is part and parcel of Ac.0.65 cents, but not Ac.0.27 cents. Undoubtedly, plaintiff cannot get any right over the suit property, which is part of
Ac.0.65 cents, and it belonged to defendants 3 to 6. As seen from
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Ex.A2=B2, through the 1st defendant, defendants 3 to 6 sold Ac.0.65 cents to the 2nd defendant. Therefore, when the 2nd defendant became owner, and when in this suit independent cause of action particularly against the 2nd defendant is shown, even if Ex.A28 and admission of D.W.1 in O.S.No.232 of 2004 is considered for a moment, plaintiff cannot seek injunction against the true owner, without establishing the identity of the property claimed by him and his right to such property. Further, when the main relief of declaration is rejected, he is not entitled to the consequential relief of permanent injunction. Accordingly, this issue is answered in favour of the defendants and against the plaintiff.
29.Additional issue No.4 framed on 25.4.2016 and
additional issue NO.2 framed on 12.12.2018: Plaintiff sought for
damages of Rs.5,00,000/- claiming that on 27.6.2005 the 2nd defendant along with his men has highhandedly trespassed into the suit property and demolished the structures existing in the suit property, damaged the trees, compound wall and caused loss of
Rs.5,00,000/- to the plaintiff. The defendants denied existence of structures in the suit property and causing damage to any of the property.
30.In this regard, learned counsel for the defendants has drawn my attention to schedule in the plaint in O.S.No.232 of 2004 and pointed out that as per the schedule the entire extent of Ac.0.14 cents is vacant site and therefore, the question of demolition does not arise. On the other hand, learned counsel for the plaintiff has argued that Exs.A27 and A28 prove the possession of plaintiff, existence of structures, trees, bore-well and compound wall, that even in the body of the plaint in O.S.No.232 of 2004 also there is reference of existence of the said property and the plaint shall be read as a whole, but not schedule alone. Learned counsel also drawn my attention to Exs.A8 to
A13 and Exs.A27 and A28.
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31.No doubt, as seen from Ex.A3 certified copy of plaint in the earlier suit, it is referred that there are trees, submersible bore-well in the suit property, whereas in the schedule, the property is described as vacant site. Existence of rooms is not pleaded in the said suit. A27 photographs shows the existence of trees and compound wall and also demolition of structures. At the outset, when it is the specific contention of defendants that those structures are not in the suit property, the plaintiff ought to have sought for localization and proving that it is part and parcel of suit property. He has not done so.
32.Further, he has examined P.W.4, who claims to be worked as Teacher in the school of the plaintiff and who claims to have witnessed the highhanded action of 2nd defendant and his men.
However, as seen from his cross-examination, admittedly, he has not filed any proof to show that he attended summer classes in the school of the plaintiff and he is not even cited as a witness in the criminal case. If really he is eyewitness, he would have been cited as a witness in the criminal case. Therefore, it shows that he is a planted witness. Even otherwise, as observed supra, the criminal case ended in acquittal. Therefore, Exs.A8 to A10 are not going to help the plaintiff.
33.No doubt, as rightly pointed out by the learned counsel for the plaintiff, when Ex.A27 evidences removal of trees and damage of structures, the plaintiff himself cannot damage his own property.
However, when he is seeking damages, it is for the plaintiff to establish that the damaged property is in the suit property, that the 2nd defendant and his men trespassed into the suit and damaged the same. He has not even filed any document for assessing damage. It is not known as to what is the basis for him to assess the damages at
Rs.5,00,000/-. Therefore, merely because some of the photographs in
Ex.A27 evidence damage of property, it cannot be concluded that the
Page 22 of 24 O.S.189/10 2nd defendant is responsible for it and damages cannot be claimed from him or any of the defendants without proving that they have caused such damage. Therefore, the plaintiff is not entitled for damages. Accordingly, this issue is answered in favour of defendants and against the plaintiff.
34.Issue No.2 and additional issue No.5 framed on 25.4.2016: In view of the findings on the issue No.1 and additional issues, the suit is liable to be dismissed with costs.
35.In the result, the suit is dismissed with costs.
Typed to my dictation, corrected and pronounced by me in the open Court, this the 18th day of April, 2023.
Sd/S.Hemalatha
PRINCIPAL SENIOR CIVIL JUDGE,
KADAPA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
Plaintiff’s side Defendants No.2, 4 and 5
P.W.1. : C.Sambasiva RedyD.W.1 : A.Veera Reddy
P.W.2. : N.Lakshminarayana NaiduD.W.2 : E.Ramagopal Reddy
P.W.3. : M.Venkataiah
P.W.4. : P.Rajagopal
Exhibits marked on behalf of the Plaintif :
Ex.A. 1. : Certified copy of Registered sale deed, dated 12.01.1995 stands in the name of the plaintiff.
Ex.A. 2. : Certified copy of Registered sale deed, dated 27.06.2005 stands in the name of the second defendant
Ex.A. 3. : Certified copy of the plaint in O.S.No.232/2004 on the file of this Addl. Senior Civil Judge, Kadapa,
Ex.A. 4. : Certified copy of written statement in O.S.No.232/2004 filed by defendant No.3,
Page 23 of 24 O.S.189/10
Ex.A. 5. : Certified copy of 1.A.No.1287/2004 in O.S.No.232/2004 and order thereon
Ex.A. 6. : Certified copy of Affidavit of petitioner in I.A.No.27/2008 in
O.S.No.232/2004,
Ex.A. 7. : Certified copy of Order in I.A.No.27/2008 in O.S.No. 232/2004,
Ex.A. 8. : Copy of complaint given in Chinna Chowk P.S., by the plaintiff
dated 26-05-2007
Ex.A. 9. : Attested copy of F.I.R. in Crime No.105/2007 of Chinna Chowk P.S.,
Ex.A. 10.: Complaint in C.C.No.76/2008 on the file of 11 Additional Judicial
Magistrate of First Class, Kadapa,
Ex.A. 11.: Valuation Certificate issued by the Sub Registrar, Kadapa,
Ex.A. 12.: Quotation issued by the Vinayaka Bore wells, dated 20.05.1995,
Ex.A. 13.: Vaartha Daily News paper dated 27.05.2007
Ex.A. 14.: Certified copy of Registered Sale deed dated 12.01.1995 vide document No.2282/1995 executed by S.Kamalsab in favour of plaintiff,
Ex.A. 15.: Certified copy of Registered General Power of Attorney vide document No.223/1993, dated 20.09.1993,
Ex.A. 16.: Certified copy of Registered sale deed dated 24.01.1986 vide document No.538/1986,
Ex.A. 17.: Certified copy of Registered sale deed dated 24.01.1986 vide document No.553/1986,
Ex.A. 18.: True copy of Plan showing proposed construction of Sri Saraswathi Vidyanikethan School, issued by Gram Panchayath, Chinna Chowk, Kadapa,
Ex.A. 19.: Certified copy of Legal Opinion, dated 20.04.2004;
Ex.A. 20.: True copy of Receipt issued by the Panchayath Secretary, Chinna Chowk, Kadapa, dated 18.08.2004,
Ex.A. 21.: True copy of Order of proceedings to Sri Saraswathi Vidyanikethan School issued by the District Educational Officer, Kadapa dated 23.08.1997,
Ex.A. 22.: True copy of Sri Saraswathi Vidyanikethan School Seventh Class Common Examination Central marks register in the year 1998- 1999,
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Ex.A. 23.: True copy of Extract of demand notice registered issued by Municipal Corporation of Kadapa from 2004-2005 to 2013-2014,
Ex.A. 24.: True copy of computerized electricity bill issued by Assistant Engineer, Operation/East Rural, APSPDCL, Kadapa from 2004 to June 2015,
Ex.A. 25.: True copy Water Tax Demand Notices cum Cash Chalanas (5 in number),
Ex.A. 26.: True copy of Property tax payment receipt, dated 30.04.2015,
Ex.A. 27.: 40 Photos relating to the School beginning and running and demolished structure of the school photos.
Ex.A 28.: Certified copy of Decree and Judgment passed by this Hon'ble Court in favour of the plaintiff in O.S.No.232/2004, dated 01.02.2016.
Exhibits marked on behalf of the Defendants 2,4 and 5 :
Ex.B.1 : Certified copy of registered General power of attorney dated 20.09.1993 executed by defendant Nos.3 to 6 in favour of defendant No.1.
Ex.B.2 : Certified copy of registered sale deed dated 27.06.2005 executed by defendant No.1 in favour of defendant No.2.
Ex.B.3 : Certified copy of registered gift deed dated 27.08.2015 executed by defendant No.2 in favour of his wife Abbireddygari Malleswari.
Ex.B.4 : Certified copy of registered rectification deed dated 07.09.2015 executed by defendant No.2 in favour of his wife Abbireddygari Malleswari.
Ex.B.5 : Letter dated 26.6.2018 issued by D.B.1 Bank, Kadapa to wife of 2nd defendant, by name Abbireddygari Malleswari about custody of original documents.
Sd/S.Hemalatha P.S.C.J., Kdp.