1 OS No.153 of 2018
IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-
JUDICIAL MAGISTRATE OF FIRST CLASS, KOVVUR,
WEST GODAVARI DISTRICT
Thursday, this the 4th day of June, 2020 Present:- Smt.S.HEMALATHA,
Principal Junior Civil Judge–cum-
Judicial First Class Magistrate, Kovvur.
O.S. No.153 of 2018
Between:
Smt. Guthula @ Jogi Bhavani, W/o Srinivasa Rao, D/o Guthula Satyanarayana, Hindu, female, aged 32 years, properties and Housewife, resident of Kumudavalli village, Palakoderu mandal.
… Plaintif And:
1.Sri Bokka Nagendra Rao, S/o late Somanna, Hindu, male, aged 62 years, Cultivation, R/o D.No.3-119, Tadipudi village, Tallapudi mandal.
2. Smt. Bokka Vimala, W/o Nagendra Rao, Hindu, female, aged 59 years, Housewife, R/o D.No.3-119, Tadipudi village, Tallapudi mandal.
…. Defendants
This suit coming on 02.06.2020 before me for final hearing in the presence of Sri.K.S.S.V.G.V.R.Murthy, advocate for the plaintiff and
Sri.S.Subba Rao Advocate for defendants and having stood over till this day for consideration, this court delivered the following:-
:: JUDGMENT ::
This suit is filed for recovery of possession of the suit land from the defendants; directing the defendants to return the original sale deed,
dated 29.03.1997 to the plaintiff; directing the defendants to lay a bund
in between the suit land and the land of the 2nd defendant and to pay
Rs.20,000/- towards the share of profits for the two crops of 2017-2018 along with interest at 12% per annum from the date of the suit till realization.
2. The case of the plaintiff, in brief, is as follows. Plaintiff is the absolute owner of the suit property, having purchased it under a 2 OS No.153 of 2018 registered sale deed, dated 29.03.1997, from one Teki Suryanarayana.
Her name was mutated in all the revenue records recognizing her title and possession. The plaintiff cultivated the suit schedule land through her men with the help of her father by coming all the way from
Bhimavaram since the date of purchase till her marriage and after her marriage with the help of her husband, the plaintiff was in possession and enjoyment of the suit schedule land till May, 2012.
a) 1st defendant is the husband of the 2nd defendant. The 2nd defendant is the junior maternal aunt of plaintiff. The 2nd defendant purchased Ac.0-22 cents of land in the same R.S.No.186/4 on the east of the suit schedule land.
b) In June, 2010 the plaintiff's husband met with major accident and undergone major surgery. At that time, the defendants approached the plaintiff and offered to take lease of the suit schedule land, but the plaintiff did not agree. Later, in May, 2012 both the defendants came to the house of the plaintiff and requested the plaintiff that the 1st defendant will look after the cultivation and share the expenses and profits of the cultivation. Being lady and in view of the accident of her husband, the plaintiff agreed for the proposal. Accordingly, since June, 2012, the 1st defendant has been cultivating the suit property and he raised paddy crop for Sarva and Dalwa and has shared the expenditure and income till January, 2017. The plaintiff paid her share of expenses for cultivation of Sarva and Dalwa seasons during the year 2017 but the 1st defendant failed to pay the income to the plaintiff for two crops of the year 2017-2018.
c) In the month of June, 2013, the defendants by misrepresentation that Government is giving agricultural loans on subsidy basis and the 1st 3 OS No.153 of 2018 defendant will arrange loan for the plaintiff, have taken the original sale deed of the plaintiff. Later, they said that loan is not sanctioned and they are prosecuting it and they failed to return the sale deed on some pretext or the other.
d) In the first week of May, 2018, the plaintiff and her husband visited the suit land and they found that the bund existed in between the land of the plaintiff and the 2nd defendant was removed and the entire land was made as a single bit. When the plaintiff and her husband questioned it, the defendants openly said that they removed the bund for convince of cultivation and they will restore the bund in a short time. But the plaintiff did not agree. On her application, the Mandal Surveyor fixed the boundary on 04.06.2018. The neighbouring ryots were there at that time, but the defendants failed to attend survey in spite of receiving notice from the Mandal Surveyor. On the next day, when the plaintiff and her husband visited the suit schedule land, again they found removal of the pegs in the boundary lines, which were plugged by the Mandal
Surveyor. When the plaintiff and her husband questioned the illegal acts of defendants, 1st defendant threatened them with dire-consequences and refused to lay the boundary bund. The defendants even denied the title of the plaintiff and bluntly refused to pay the arrear amount for
Sarva and Dalwa crops of 2017-2018, which is Rs.10,000/- per each crop.
The plaintiff does not want to continue the defendants to cultivate the suit land on her behalf and she revoked the permission given to the 1stdefendant. Therefore, the 1stdefendant is liable to vacate and deliver vacant possession of the suit land to the plaintiff.
e) Further without any manner of right, defendants dug earth in the suit schedule land without the knowledge of the plaintiff, sold it and 4 OS No.153 of 2018 enjoyed the profits illegally. The defendants retained the original sale deed of the plaintiff and threatened to do some illegal acts. The plaintiff did not give the sale deed as security. In view of the attitude of the defendants, the plaintiff issued a legal notice on 02.07.2018 demanding the defendants to comply the notice. The defendants issued a reply
dated 20.07.2018 with false allegations. The plaintiff never leased the
suit land to the 1stdefendant. His possession is only permissive. The alleged pronote, dated 20.04.2016 is a forged one. The plaintiff never borrowed any amount from the defendants. Therefore, the plaintiff issued a rejoinder to the notice of the defendants seeking a copy of the alleged pronote and denying the allegations of the defendants. As defendants willfully failed to vacate and deliver possession of the suit land, failed to return sale deed, restore the bund and pay the profits, the plaintiff was constrained to file this suit seeking appropriate reliefs, in this regard.
3. The defendants filed written statement admitting the relationship between the parties and ownership of the plaintiff to the suit land. However, they have denied the other averments of plaint. The contentions in the written statement, in brief, are as follows. The plaintiff leased out suit schedule land to the 1st defendant orally on 15.04.2005 on annual lease of Rs.5,000/-. She took advance of Rs.5,000/- from the 1st defendant and delivered possession of the suit land to the 1st defendant.
The 1st defendant reclaimed suit schedule land by levelling it and brought it fit for cultivation by investing amount. All these years the 1st defendant raised various crops like paddy, blackgram, maize etc. in two seasons. He also nourished the crops by drawing water from his nearby borewell. The 1st defendant paid the agreed rent to the plaintiff regularly. In view of the relationship between the parties, there was no practice of passing on 5 OS No.153 of 2018 rent receipts. The rent was enhanced to Rs.7,000/- in the year 2013-2014 with the same terms and conditions.
a) When the 1st defendant paid the rent in the 1st week of April, 2016-2017 to the plaintiff, the plaintiff requested to lend the amount.
Accordingly, the 1st defendant lent Rs.7,30,000/- on 20.04.2016. The plaintiff agreed to pay the interest at the rate of 18% per annum and there was an understanding that the existing rent shall be adjusted towards the accrued interest. The plaintiff executed a promissory note on the same day in favour of the 1st defendant and also handed over her original registered sale deed, dated 29.03.1997 pertaining to the suit schedule land to the 1st defendant as security.
b) Subsequently, the 1st defendant demanded the plaintiff to repay the debt but she postponed on one pretext or the other. All of a sudden, she issued a notice to the defendants on 02.07.2018 demanding them to vacate and deliver vacant possession of the suit schedule land to the plaintiff. The plaintiff has no right to seek for eviction of the 1st defendant as he is not a defaulter and he is a cultivating tenant and his possession shall be protected under the Tenancy Act till he is evicted under due process of law. It is an implied understanding that the lease should be continued until the debt is cleared. The defendants issued a proper reply on 20.07.2018 with the true facts and also furnished a copy of pronote along with another reply dated 10.08.2018.
c) Later, disputes arose between the 1st defendant and his brothers regarding their properties. Taking advantage of it, the enemies of 1st defendant poisoned the mind of the plaintiff and the plaintiff started troubling the defendants. As such, the defendants had to file O.S.No.218 of 2018 on the file of the court of Hon'ble Principal Senior Civil Judge, 6 OS No.153 of 2018
Kovvur for recovery of amount and sought for attachment the suit schedule land. The agreed rent for the suit schedule land is only
Rs.7,000/-, but not Rs.10,000/- as contended by the plaintiff. The 1st defendant never disturbed the suit schedule land and he has been protecting it. The plaintiff, without offering the defendants, has been trying to sell the suit schedule land to her associates. The 1st defendant is ready to purchase the suit schedule land in accordance with law.
Therefore, he filed A.T.C. No.2 of 2018 before the Special Officer for
Tenancy Tribunal-cum-Principal Junior Civil Judge, Kovvur against the plaintiff for declaration of his tenancy and for consequential reliefs. He also obtained interim injunction against the plaintiff. The 1st defendant has raised paddy crop of 1064 variety in the 3rd week of July, 2018 in the suit schedule land by investing more than Rs.15,000/-. The plaintiff is seriously trying to alienate the suit schedule land to defraud the defendants and against the subsisting tenancy rights of the defendants.
On 05.09.2018 at 4 p.m. when the 1st defendant was at the suit schedule land, the plaintiff and her husband came there and high handedly proclaimed that they will destroy the standing crop by spraying anti- weed chemical on the crop if the 1st defendant does not leave the suit schedule land. The court fee paid by the plaintiff is not correct. She has no cause of action to file this suit and the suit is, therefore, liable to be dismissed with costs.
4. Based on the above pleadings, the following issues are settled for trail:
1)Whether the agreed rent between plaintif and 1 st defendant is Rs.10,000/-?
2)Whether the plaintif is entitled for recovery of possession of the suit property, as prayed for?
3)Whether the plaintif is entitled for mandatory injunction directing
the defendants to return the original registered sale deed, dated
29.03.1997 to the plaintif, as prayed for?
4)Whether the defendants removed the bund existed in between the 7 OS No.153 of 2018
suit property and 2 nd defendant’s land? If, so whether the plaintif is
entitled for mandatory injunction directing the defendants to
restore it, as prayed for?
5)Whether the plaintif is entitled to recover Rs.20,000/- towards her
share of profits for the two crops of 2017-2018 together with
interest, as prayed for?
6)To what relief?
5. On behalf of the plaintiff, P.W.1 is examined and Exs.A1 to A23 are marked. On behalf of defendants, D.Ws.1 to 4 are examined and
Exs.B1 to B3 are marked.
6. Heard learned counsel for both the parties and perused the material on record.
7. Issues No.1 and 2: These issues are interconnected. Therefore, they are taken up together.
8. Admittedly, plaintiff is the absolute owner of the suit land, having purchased under the original of Ex.A1 sale deed,
dated 29.3.1997. Ex.A2 Encumbrance certificate also reflects
the sale. As seen from Ex.A3 pattadar passbook and title deed, and Ex.A4 adangal, the name of plaintiff is also mutated in the revenue records. Admittedly, the second defendant is the maternal aunt of plaintiff and the 1st defendant is her husband.
9. Plaintiff contended that in the month of May 2012 at the request of defendants, the plaintiff permitted the defendants to cultivate the suit land by sharing the income and expenditure, but defendants did not pay the income for the Sarva and Dalwa crops of the year 2017-2018, that they removed the boundary bund existed in between the suit land and the land of 2nd defendant, dug earth from the suit land without the knowledge of the plaintiff and therefore, under
Ex.A10 legal notice, the plaintiff revoked the permission and 8 OS No.153 of 2018 demanded the defendants to vacate and deliver possession of the suit land, and when the notice is not complied, she filed this suit for recovery of possession along with other reliefs.
10. On the other hand, the defendants denied the permissive possession. According to them, the plaintiff leased the suit land to the 1st defendant orally on 15.4.2005 on an annual rent of Rs.5,000/-,which is enhanced to Rs.7,000/- from 2013-14. He stated to have regularly paid rent to the plaintiff. They further pleaded that 1st defendant lent
Rs.7,30,000/- to the respondent on 20.04.2016 with an understanding to adjust the interest accrued on the said debt towards the lease amount. They alleged that when the 1st defendant demanded the plaintiff to repay the debt, the plaintiff denied the tenancy, interfered with his possession and enjoyment of suit land and also filed this suit seeking recovery of possession of the suit land. Therefore, they contended that the 1st defendant is the protected tenant of the suit land and he is also not liable for eviction till the debt is discharged.
11. Learned counsel for the plaintiff submitted that the defendants admitted the title of the plaintiff, that there is no proof of the lease, that in Ex.A12 reply to Ex.A10, which is at the earliest in point of time, the date of commencement of lease, period of lease and other terms and conditions of lease are not mentioned, that for the first time in the written statement, the defendants have introduced them, and in fact, the pleadings are contrary to Ex.A12 reply, that plaintiff never intended to lease the suit land, that in the revenue records 9 OS No.153 of 2018 i.e, Exs.A3, A4 and A21, the name of plaintiff alone is entered, that there is no record to prove the lease of the 1st defendant and on the contrary, the own admission of the 1st defendant, who is examined as D.W.1, shows that he did not avail any benefits as lessee of the suit land, which disproves tenancy, that the evidence of D.Ws.2 to 4 is not helpful to the defendants, as as per their own admission they are not the witnesses for the lease and had no personal knowledge about the lease, in fact, their names are not referred in Ex.A12, and therefore, the lease pleaded by the defendants is not correct.
Learned counsel further submitted that the evidence on record supports the plea of plaintiff that in view of the ill- health of her husband and the relationship between the parties, the plaintiff permitted the defendants to cultivate the suit land.
12. On the other hand, learned counsel for defendants submitted that the evidence of D.Ws.1 to 4 proves the tenancy, that except the unproved revenue records, the plaintiff has not filed any document proving her cultivation of land till 2012 from the date of her purchase, that she has not examined any of the neighbours of the suit land nor any independent witness in support of her plea and she has also not produced any probable evidence proving her sharing of income and expenditure for cultivation of the suit land, that when the plaintiff admitted the 1st defendant’s possession of the suit property, it shall be presumed that he is the sitting tenant, that third party will not take lease of meager extent of
Ac.0.50 cents, and that all these circumstances prove that 10 OS No.153 of 2018 only to avoid repayment of debt covered by Ex.B2, the plaintiff filed this suit.
13. In view of the rival contentions, now it is to be seen whether the possession of defendants is permissive or whether the 1st defendant is the cultivating tenant of the suit land. The plaintiff is examined as P.W.1. In her evidence, she has reiterated about the understanding between both the parties and the permissive possession of the suit land by the defendants. During her cross-examination also, she has denied the tenancy and affirmed her contentions. Nothing could be elicited in her cross-examination to prove the tenancy in spite of thorough cross-examination.
14. Apart from that Exs.A3, A4, A20 and A21 pattadar passbook and No.3 adangals stand in her name. A perusal of these documents evidence that the name of the plaintiff is shown even in the enjoyment column.
15. As pointed out by the learned counsel for the defendants, the plaintiff has not examined revenue authorities to prove those revenue records. As seen from these documents, they were issued by the authority concerned and they are public documents. As per the ratio laid down in the case of Mohd.
Ibrahim and another vs. the Secretary to the Government
of India, Ministry of Defence, New Delhi and others, reported in 1996 (2) ALT 950 (DB), of the Division Bench of the
Hon’ble High Court of Judicature, Andhra Pradesh at Hyderabad,
as the pahanies/adangals are prepared in the usual course of business of preparation of Record of Rights, there is a due presumption that the entries made therein have been made in 11 OS No.153 of 2018 due performance of official duties. Therefore, there is no necessity to examine revenue authorities to prove the entries in the above revenue records. Thus, the entries in these documents evidence that the name of the plaintiff alone is mentioned in the enjoyment column in the adangals, but not the 1st defendant.
Further, Ex.R22 bank statement of the respondent also shows that government extended benefits to the plaintiff under PM
KISAN and Annadhatha Sukheebhava schemes. So, all these documents categorically proves that the name of the plaintiff alone is recorded in the records.
16. With regard to the oral understanding, no doubt, except the evidence of P.W.1, there is no other evidence to prove it. As seen from the suggestions in the cross-examination of P.W.1 and as admitted by P.W.1, the plaintiff was brought up by the defendants and as evident from Ex.B1 photographs and admitted by P.W.1, the defendants performed all the rituals during the marriage of the plaintiff. So, it proves the closeness of the families of both the parties prior to the litigation. It is also not in dispute that the plaintiff is not residing in the suit schedule village. It is also undisputed fact that the husband of the plaintiff met with an accident and has undergone major surgery.
Therefore, from all these circumstances coupled with the entries in the revenue records, and the unimpeachable evidence of
P.W.1, there is every possibility of plaintiff permitting the defendants to cultivate the suit land by sharing the income and expenditure. There is nothing strange in seeking the assistance of defendants for cultivating the suit land. Therefore, the plea of permissive possession of the plaintiff appears to be probable. As 12 OS No.153 of 2018 evident from Ex.A10 notice of plaintiff, the plaintiff revoked the permission and directed the defendants to vacate and deliver possession of the suit land. Thus, it discharges the initial burden of the plaintiff to prove her entitlement to recover possession of the suit land.
17. As stated supra, the defendants admitted the title of the plaintiff, denied permissive possession and pleaded tenancy. Therefore, it is for them to prove as to why they are entitled to continue in possession of the suit land. Reliance is placed on the evidence of D.Ws.1 to 4, to prove the lease. D.W.1 is the 1st defendant herein, D.Ws.2 and 4 are the southern and further eastern boundary owners of the suit land and D.W.3 claims to have levelled the suit land with his tractor at the time of commencement of lease. As per the chief-examination of all these witnesses, the 1st defendant took lease of the suit land in the year 2005. It is manifest from the evidence of D.Ws.2 to 4, that they have no personal knowledge about the lease and through D.W.1 they came to know about the lease. D.W.2 also clarified that he did not negotiate between both the parties at the time of lease. Therefore, their evidence is hearsay and they can not say whether the possession of the 1st defendant is permissive or the as lessee. Thus, their evidence is not helpful to the defendants to prove the lease.
18. As regards the evidence of D.W.1, he has categorically stated that except his oral statement, there is no proof to show that he paid annual lease of Rs.5,000/- to the plaintiff. Further, admittedly, he is resident of suit schedule village and his family has agricultural lands in that village and it would be entered in 13 OS No.153 of 2018 the village accounts. If really he has been in possession of the suit land as lessee since 13 years prior to this litigation, he would have got his name entered in the revenue records in the column of enjoyment, proving his tenancy. However, no single revenue record is filed. In the cross-examination he says that he made an application in the year 2014 to the Tahsildar seeking to enter his name as enjoyer of the suit land in the adangals. Evidently, copy of such application is not filed. He further admits that he did not derive any benefits from the Government as lessee of the suit land. Under Andhra Pradesh Licensed Cultivators Act, 2011, the
Government is issuing ‘loan and other benefits eligibility card, called as ‘kaul cards’ to the lessees for getting benefits from the
Government. Admittedly, the 1st defendant did not obtain such card.
19. In this regard, learned counsel for the defendants submitted that when the 1st defendant is cultivating the suit land and when the original sale deed of plaintiff is with the 1st defendant, there is no necessity to obtain loan eligibility card. I am unable to accept the said contention. Cultivation of land or possession of original title documents regarding the land are not concerned with availing benefits from the Government and loan eligibility card. Further, mere cultivating the land and possession of original sale deed would not infer that the nature possession is as a lessee. In fact, it is the contention of the 1st defendant that the sale deed was handed over towards security for the debt contracted under Ex.B2, but not concerning the lease. If really he is the lessee since 13 years, he would have availed benefits from the Government.
14 OS No.153 of 2018
20. On the other hand, his statement in Ex.A23-the relevant portion in his deposition in O.S.No.230 of 2011 on the file of the court of Hon’ble Principal Senior Civil Judge, Kovvur, is against his plea. He filed the said suit against the father of plaintiff and another. He gave evidence in the said suit on 11.09.2012 i.e, much later to the alleged tenancy. In Ex.A23 he said that he does not know whether the daughter of the defendant therein i.e, the plaintiff herein has Ac.0.50 cents of land. If really he was the tenant by then, he would not have given such a statement. So, except his self-serving testimony, there is no other evidence to prove his lease. It is not sufficient to prove the tenancy. The other documentary evidence adduced by the parties i.e, Exs.A16 to A19 and Ex.B3 are the self-serving pleadings of either side. They are not helpful to prove the dispute in the suit. They would not prove the tenancy. Thus, except the oral evidence of D.W.1, there is no other probable evidence in support of the tenancy.
21. In this regard, it is pertinent to refer to the judgment of the Hon’ble Supreme Court, in the case of Shri Pratap
Singh (dead) through L.Rs., vs. Shiv Ram (dead)
through L.Rs., in Civil Appeal No.1511 of 2020,
delivered on 20.2.2020, wherein, similar aspects were dealt with. The said case was filed by the owner asserting that the defendant was appointed to manage and look after the property and to render accounts. However, the defendant therein pleaded oral tenancy. It is pertinent to refer to the relevant portion of the judgment, which is as under:
“ In the absence of entry in the revenue record, which
is also expected to contain the entry of rent and
15 OS No.153 of 2018
possession, the tenancy cannot be treated to be in
existence only on the basis of oral evidence of the
witnesses examined by the defendant. The burden of
proving the relationship was on the defendant. Such
burden cannot be said to be rebutted only by oral
evidence. The witnesses may lie but the documents do
not, is a golden rule. The presumption of truth attached
to the revenue record can be rebutted only on the basis
of evidence of impeccable integrity and reliability. The
oral evidence can always be adduced contrary to the
revenue record but such oral testimony will not be
sufficient to hold that the statutory presumption stands
rebutted…
… The burden is on the person who asserts such a
relationship as per Section 109 of the Evidence Act. The
defendant has failed to rebut the presumption of truth on
the basis of reliable, trustworthy and cogent
documentary evidence to prove the relationship of a
tenant.”
The ratio laid down in the said case squarely applies to the case on hand. As observed supra, except oral testimony, the defendants have not produced any document in support of the lease and rebut the entries in the revenue records and the evidence of the plaintiff. In view of the ratio laid down in the said case, such self-serving testimony of D.W.1 alone is not sufficient to prove the tenancy.
22. No doubt, as contended by the learned counsel for the defendants, except examining herself, the plaintiff has not examined any other villager of the suit land. She offered an explanation that in view of the threat of the 1st defendant, the neighbouring ryots are not willing to give evidence on her behalf.
Admittedly, the plaintiff is not residing in the suit schedule village. Naturally, the neighbours may not come to give evidence on her behalf and against their villager. Irrespective of the same, mere failure of the plaintiff to examine the neighbours would not prove the tenancy. When the 1st defendant is claiming oral tenancy, heavy burden is on him to prove the same. Thus, the defendants failed to prove that the 1st defendant is the cultivating tenant of the suit land. Therefore, question of considering 16 OS No.153 of 2018 whether the annual rental at the suit schedule locality is
Rs.7,000/- or Rs.10,000/- does not arise.
23. Under Ex.A10 legal notice, the plaintiff revoked the permission granted to the defendants and directed the defendants to vacate and deliver possession of the suit land.
Admittedly, the defendants did not comply with the same. As observed supra, the defendants failed prove their entitlement to continue in possession of the suit land. When the rightful owner seeks recovery of suit land, defendants are bound to deliver it.
Therefore, the plaintiff is entitled for recovery of possession of the suit property, as prayed for. Accordingly, these issues are answered in favour of the plaintiff and against the defendants.
24. Issue No.3: Plaintiff seeks to direct the defendants to return her original registered sale deed, dated 29.3.1997, (Original of Ex.A1) pertaining to the suit land. She alleged that by misrepresenting that they would arrange loan, the defendants took the sale deed from her in the year 2013, but they did not arrange the loan and failed to return the sale deed.
25. The defendants did not deny their custody of sale deed.
According to them, the plaintiff borrowed Rs.7,30,000/- from the 1st defendant under the original of Ex.B2 promissory note dated 20.4.2016, that she has handed over the original of Ex.A1 towards security for the said debt and therefore, she is not entitled to get it returned till the debt is discharged.
26. Admittedly, the 1st defendant filed O.S.No.219 of 2018 on the file of the court of the Hon’ble Principal Senior Civil Judge,
Kovvur, for recovery of money based on the original of Ex.B2.
Even according to the 1st defendant, the plaintiff has not created 17 OS No.153 of 2018 mortgage on deposit of her title deed, within the meaning of
Section 58 (f) of the Transfer of Property Act. Further, as seen from Ex.B3, certified copy of the plaint in the said suit, it is a simple suit for recovery of money, and not based on mortgage. If the contention of defendants is true, the 1st defendant would have filed suit on mortgage by deposit of title deeds, but not simple suit for recovery of money. Admittedly, the suit land is attached in the said suit. If the said suit is decreed, while enforcing the decree, the attached property would be brought to sale and the original documents have to be handed over to the auction purchaser. By keeping the original of Ex.A1, the defendants would not derive any benefit. Therefore, now the defendants can not retain the original of Ex.A1 and they are bound to return it to the plaintiff. Accordingly, this issue is answered in favour of the plaintiff and against defendants.
27. Issue No.4: Plaintiff alleged that in May, 2018 she noticed that the bund existed in between the suit land and the land of the 2nd defendant was removed, that when she questioned them, they replied that for the convenience of cultivation, they removed the bund, that thereafter, plaintiff made an application on 11.05.2018 to the revenue authorities,
Tallapudi, and in pursuance thereof, the Mandal Surveyor,
Tallapudi, surveyed the land and fixed boundary in between the suit land and the land of the 2nd defendant and fixed sticks in the boundary line on 04.06.2018, however, again the defendants highhandedly removed the peg marks on the boundary line and that when the plaintiff and her husband questioned it, 18 OS No.153 of 2018 defendants threatened them with dire consequences. Therefore, the plaintiff seeks to direct the defendants to lay bund in between the suit land and the land of 2nd defendant. The defendants denied removal of bund and peg marks and also the survey.
28. P.W.1 has reiterated in her evidence about the defendants’ removal of boundary bund, getting survey through
Mandal Surveyor, fixation of boundary and the defendants’ removal of peg marks planted by the surveyor. She has denied suggestions put to the contrary during her cross-examination.
29. Apart from that she has filed Ex.A6 the copy receipt issued through A.P., online dated 11.05.2018 for survey. Ex.A7, the certified copy of the endorsement dated 13.06.2018 issued by the Tahsildar, Tallapudi, evidences that in pursuance of the application of the plaintiff, suit land was surveyed and boundaries were fixed.
30. In this regard, learned counsel for the defendants submitted that mere payment of fee for survey would not give any right to the plaintiff, that there is no document evidencing survey of the suit land, that the plaintiff did not get a commissioner appointed to inspect the suit land and note removal of bund, that except P.W.1, none others are examined to prove the removal of bund, survey and fixation of boundaries and therefore, the plaintiff failed to prove removal of boundary bund by defendants and survey.
31. I am unable to accept the said contentions.
Admittedly, the defendants were in possession of the suit land 19 OS No.153 of 2018 by the date of alleged removal of boundary bund and survey. As seen from the written statement and the evidence of defendants, except denying removal of bund and survey, the defendants did not specifically plead that bund is still existing and therefore, the question of survey and fixation of boundary does not arise. When the land is in their possession, their bald denial is not sufficient. It is for them to explain as to whether the bund is existing as it is and they did not disturb it. However, there is no such explanation either in their pleadings or evidence. On the other hand, the evidence of P.W.1 coupled with
Exs.A6 and A7 substantiates the plea of plaintiff. Ex.A7, the certified copy of the endorsement of Tahsildar clearly proves that in pursuance of the application of the plaintiff, survey was conducted and boundary for the suit land was fixed. No doubt, the plaintiff did not seek for appointment of commissioner to note down the physical features of the suit property. When the defendants did not speak about existence of bund even till now and dispute the physical features of the suit property, there is no necessity for the plaintiff to seek for appointment of commissioner. Her evidence coupled with Exs.A6 and A7 are sufficient to substantiate her plea. Thus, it proves removal of bund in between the suit land and the land of 2nd defendant by the defendants. Therefore, they are bound to restore the bund and the plaintiff is entitled for mandatory injunction for restoration bund. Accordingly, this issue is answered in favour of the plaintiff and against the defendants.
20 OS No.153 of 2018
32. Issue No.5: Plaintiff claimed that as per the oral understanding between her and the defendants, the income and expenditure for cultivating the suit land shall be shared by the plaintiff and defendants equally, that the defendants raised paddy crop in the suit land, but they have not paid the share of profits of the plaintiff for the two crops i.e., ‘Sarva and Dalwa’ of the year 2017-2018 amounting to Rs.10,000/- for each crop, totalling Rs.20,000/-.
33. In view of the findings on issues 1 and 2, the plea of tenancy of the 1st defendant is rejected. Consequently, the plea of adjusting the lease amount towards the alleged debt can not be considered. The defendants further disputed the quantum of profits claimed by the plaintiff. Their plea is that the annual rental for the suit land is only Rs.7,000/-, that the suit land is a dry land and the 1st defendant raised paid, blackgram and maize crops periodically by drawing water from the land of 2nd defendant.
34. Learned counsel for the defendants submitted that the plaintiff has to prove the yield from the suit land, the quantum of income from the suit land, but except the evidence of P.W.1, the plaintiff has not placed any other evidence to prove the said fact and as such, her claim on mere assumption cannot be considered.
35. As seen from the written statement, the defendants did not dispute about raising crops during the two seasons in the suit land. It is pleaded that as per the convenience paddy, black gram and maize crops are raised in the suit land. Though the 21 OS No.153 of 2018 plaintiff pleaded that only paddy crop is raised in the suit land, her evidence is contrary to it. She has categorically admitted that back gram and maize crop will be generally raised in the suit land and if there is rain, paddy crop will be raised. So, it falsifies about raising only paddy crop in the suit land. No doubt, as seen from the evidence of D.Ws.1 to 4, the lands surrounding the suit land are irrigated through Gutala Pumping Scheme canal. However, in view of the admission of P.W.1, it can not be said that in both the seasons only paddy crop is raised.
36. Further, when the plaintiff seeks her share of profits, as rightly pointed out by the learned counsel for the defendants, she has to prove the yield and income from the suit land. Her pleadings and evidence are totally silent about the quantity of the crop realised and income earned. However, admittedly, the defendants raised crop and realised income from the suit land for the two crops in the year 2017-2018 and they did not pay any amount to the plaintiff during that period. As per the suggestion to P.W.1 in an extent of Ac.0.50 cents 10 to 12 bags of paddy will be raised. If it is considered, approximately
Rs.18,000/- will be realised for one crop. P.W.1 further stated that
Rs.10,000/- is required for raising a crop in the suit land.
Considering it and the annual rental value at the schedule schedule locality pleaded by the defendants, to meet the ends of justice, instead of rejecting th9e total claim of plaintiff, the undisputed amount can be awarded. Accordingly, the defendants be directed to pay Rs.7,000/- to the plaintiff towards income 22 OS No.153 of 2018 from the suit land for the year 2017-2018. Accordingly, this issue is answered.
37. Issue No.6:In view of the findings on issues 1 to 5, the suit is to be decreed in part with proportionate costs.
In the result, the suit is decreed in part with proportionate costs as under;
1. The defendants are hereby directed to vacate and deliver vacant possession of the suit land to the plaintiff within the period of three months from the date of decree and if the defendants fail, the plaintiff is at liberty to recover possession through process of law;
2. The defendants are hereby directed to return the original registered sale deed, dated 29.03.1997 standing in the name of the plaintiff to the plaintiff within a period of three months from the date of decree and if the defendants fail, the plaintiff is at liberty to get it returned through process of law;
3. The defendants are directed to restore the bund in between the suit property and the land of the 2nd defendant on the eastern side of the suit land within three months from the date of the decree and if the defendants fail, the plaintiff is at liberty to recover possession through process of law;
4. The defendants are directed to pay Rs.7,000/- to the plaintiff together with interest @ 12% per annum from the date of the suit till the date of the decree and at 6% per annum from the date of the decree till realization towards the crops of the year 2017-2018.
Typed to my dictation, corrected and pronounced by me in Open Court, on this the 4th day of June, 2020.
23 OS No.153 of 2018
Sd/-S.Hemalatha
PRINCIPAL JUNIOR CIVIL JUDGE-cum
JUDICIAL MAGISTRATE OF FIRST CLASS,
KOVVUR.
APPENDIX OF EVIDENCE
Witnesses examined for
Plaintif:
P.W.1: Guthula @ Jogi Bhavani
Defendants: D.W.1 : Bokka Nagendra Rao D.W.2: Mandiga Rambabu D.W.3: Borra Veera Nageswara Rao D.W.4: Mandiga Veera Venkata Krishna Rao
Documents marked
For Plaintif:
Ex.A1 : The certified copy of registered sale deed, dated 29.03.1997, under Doc. No.269/97 registered with the SRO,
Vegeswarapuram executed by Teki Suryanarayana in favour of the plaintiff.
Ex.A2 :The original encumbrance certificate, dated 11.06.2018, issued by SRO, Vegeswaram.
Ex.A3 : The certified copy of pattadar title deed and pass book issued by
Tahsildar, Tallapudi mandal, West Godavari District through Mee
Seva for the plaint schedule land in the name of the plaintiff,
dated 28.02.2018.
Ex.A4 : The certified copy of No.3 adangal for the plaint schedule property for fasali No.1427 issued in the name of the plaintiff through Mee Seva by Tahsildar, Tallapudi mandal, West
Godavari District, dated 08.03.2018.
Ex.A5 : The certified copy of FMB Plan for R.S No. 186 of Tadipudi village, Tallapudi mandal, through Mee Seva by Tahsildar,
Tallapudi mandal, West Godavari District, dated 08.03.2018.
Ex. A6 : The copies of “F” line application receipt dated 11.05.2018 for the application NO. FSO11800182784 issued by the AP online services in the name of the plaintiff along with Treasury 24 OS No.153 of 2018
Challan No. 0000014186, dated 01.03.2018.
Ex.A7 : The certified copy of endorsement. dated 13.06.2018 for the application No. FS011800182784 issued by MRO, Tallapudi mandal through Meeseva.
Ex.A8 : The office copy of police report given by the plaintiff against the defendants and others (marked as subject to objection)
Ex.A9 : The office copy of Monday Arji receipt, dated 30.04.2018, issued by District Collector office, for the protection suit filed by the plaintiff in Prajavani, Eluru (marked as subject to objection).
Ex.A10 : The office copy of registered legal notice, dated 02.07.2018 issued on dated 03.07.2018 to the defendants along with postal receipts.
Ex.A11 : The original track consignment issued by the department of posts, dated 25.07.2018 (2 in Nos.)
Ex.A12 : The received copy of reply notice, dated 20.07.2018, issued by the defendants through the counsel to the plaintiff counsel on 22.07.2018
Ex.A13 : The office copy of rejoinder reply, dated 26.07.2018 issued by the plaintiff’s counsel to the defendants counsel and also the 1st defendant through registered post along with postal receipt, dated 27.07.2018.
Ex.A14 : The original postal acknowledgment from the 1st defendant
Ex.A15 : The originals of money order receipt, dated 27.07.2018 along with refusal money order NO.009041326789829010, dated 31.07.2018.
Ex.A16 : The certified copy of plaint in OS No.218/2018 filed by Bokka
Nagendra Rao (D1) against the plaintiff on the file of the court of Hon’ble Senior Civil Judge, Kovvur.
Ex.A17 : The certified copy of written statement in OS No. 218/2018 filed by this plaintiff as defendant.
Ex.A18 : The certified copy of the suit in ATC No.2 of 2018 on the file of the Special officer to Tenancy Tribunal cum PJCJ,
Kovvur.
E.A19 : The certified copy of in counter in ATC No.2 of 2018 on the file of the Special officer to Tenancy Tribunal cum PJCJ, Kovvur.
Ex.A20 : The bunch of No.3 adangals pertaining to the suit schedule 25 OS No.153 of 2018 mentioned property for faslies 1406, 1407, 1409, 1411 and 1412, 1420, 1421, 1422.
Ex.A21 : The pattadar pass book and title deed issued in favour of plaintiff.
Ex.A22 : The statement of account of account No.101610100058679 standing in the name of plaintiff issued by Andhra Bank,
Bhimavaram.
Ex.A23: Relevant portion in the cross-examination of plaintiff in
O.S.No.230/2011 on the file of the court of the Hon’ble Principal
Senior Civil Judge, Kovvur.
For Defendants:
Ex.B1: Three photographs
Ex.B2: Certified copy of the promissory note, dated 20.04.2016 executed by the plaintiff in favour of 1st defendant.
Ex.B3 : The certified copy of the plaint in OS No. 219 of 2018, on the file of the court of Hon’ble Senior Civil Judge, Kovvur filed by 1st defendant against the plaintiff.
Id/-S.H.L PJCJ-cum-JMFC, KOVVUR.