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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, CHITTOOR.
Present:- SMT S.SAILAJA
Principal junior Civil Judge, Chittoor.
Wednesday, the Nineteenth (19th) day of February, 2020.
O.S.NO.230 OF 2014
O.S.NO.642 OF 2017
COMMON-JUDGMENT
O.S.NO.230 OF 2014
Between:
T. Munirathnam … Plaintif
And:
A. Harikrishnana @ A. Harikrishna … Defendant
This suit is coming before me on 06.02.2020 for final hearing in the presence of Sri C. Hari Krishna - Advocate for Plaintiff, and of Sri M. Dasaradhi - Advocate for Defendant, and having stood over for consideration till this day, this court delivered the following:
O.S.NO.642 OF 2017
Between:
A. Harikrishnana @ A. Harikrishna… Plaintif
And:
T. Munirathnam… Defendant
This suit is coming before me on 06.02.2020 for final hearing in the presence of Sri M. Dasaradhi- Advocate for Plaintiff, and of Sri C. Hari Krishna - Advocate for Defendant, and having stood over for consideration till this day, this court delivered the following:
C O M M O N - J U D G M E N T
SUIT IN O.S.NO.230 OF 2014
01.The Plaintif filed suit for seeking declaration of his right and title of the plaint schedule mentioned property and also consequential relief of permanent injunction restraining the Defendant and his men and agents by way of interfering with the peaceful possession and enjoyment of the plaint schedule property and for costs of the suit.
02. The brief averments of the plaint in O.S.No.230 of 2014 are as follows:
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The Plaintif submitted that he got the plaint schedule mentioned property and other properties by way of Gift Settlement Deed dated 31-03-2001 situated in
S.No.874/3B of Muthireveua Village of Puthalapattu revenue Mandal to an extent of
Ac.0-10 2/3 rd cents from one C. Govindaswamy Naicker vide document
No.2066/2001 register at Sub-Registrar, Chittoor. He is in possession and enjoyment of the properties covered under the said Gift Settlement Deed. After one year of the said Gift Deed, he, Perumal and Ragavappa @ Chinnaraju got divided the said Ac.0.32 cents in to three equal shares under oral partition. In the said oral partition he got the plaint schedule property and since then he is in possession and enjoyment of the same. C. Perumal, S/o Pedda Munaswamy Naicker signed as
Attestor in said Gift Deed. Later the above said C. Perumal executed his 1/3 rd share of property to the Defendant under Register Sale Deed dated 09-06-2008 and since then the Defendant is in possession and enjoyment of the property an extent of Ac.0-10 2/3 rd cents in S.No.874/3B, but the Defendant got created the said sale deed for an extent of 0-14 cents. Further the Defendant filed a false suit in
O.S.No.262 of 2012 on the file of this Court for grant of injunction against the
Defendant an extent of Ac.0-10 2/3 rd cents in S.No.874/3B, evn though his vendor was only 1/3 rd share, and said case is pending for trial. The Defendant has no right over the plaint schedule mentioned property. The Defendant is taking advantage of his sale deed dated 09-06-2008 making attempt to encroach the plaint schedule property. Hence, the suit.
03. The brief averments of the written statement filed by Defendant is as follows:
The Defendant denied all the allegations mentioned in plaint further he submitted that, he purchased the land in S.No.874/3B to an extent of Ac.0.14 cents from one C. Perumal and a sale deed executed in his favour on the same day. The said property is got by Perumal through oral partition of his family members. Being the eldest son of his family, he got the Ac.0.14 cents of property. The said Perumal sold away his extent of Ac.0.14 cents of property to him on 09-06-2008. He obtained pattadar pass book and title deed and also the Tahsildar made entries in
Revenue records i.e., No.2 adangal and No.3 pahani. He has been raising seasonal crops like Groundnut and Redgram and Horse gram in the said lands from the date
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of purchase to till today. He is in continuous possession and enjoyment over the said property. The Plaintif tried to encroach and trespass in to his land in survey
No.874 3/B to an extent of Ac.0.14 cents and with his huge followers. He filed the suit in O.S.No.262/2012 against the Plaintif herein for permanent injunction and
I.A.No.714 of 2012 is ad interim injunction and same is allowed. The main suit
O.S.No.262 of 2-012 is posted for Defendant’s side further evidence. The Plaintif
herein filed the written statement with erected and concocted stories with false allegations. The Plaintif has came with false claim and he is claiming his property which is purchased by him from Perumal to an extent of Ac.0.14 cents. Adjacent to the land of Munirathanam an extent of Ac.0.35 cents he is having Ac.0.14 cents of land and the same is in his possession and enjoyment over the said property till today. The Plaintif is showing the said Gift Deed to mislead this court and the
Plaintif is trying to get wrongful gain. Hence, prays to dismiss the suit.
04. The brief averments of the written statement filed by Defendant on 11-08-2016 is as follows:
The Defendant denied all the allegations mentioned in plaint, further he submitted the contents which sated in earlier written statement herein. And prays to dismiss the suit.
05. The brief averments of the Rejoinder filed by Plaintiff, is as follows:
The Plaintif submitted the contents which already stated earlier in plaint, and futher submitted that actually out of Ac.0.32 cents the Plaintif having Ac.0.10 2/3 cents. The Defendant purchased property from Perumal an extent of Ac.0.10 2/3 cents out of Ac.0.32 cents in Sy.No.874/3B. He prays to decree the suit.
06. The brief averments of Additional written statement filed by Defendant, is as follows:
The Defendant denied all the allegations mentioned in Rejoinder and further he submitted that, the Plaintif has came with false claim and he is claiming his property which is purchased by him from Perumal to an extent of Ac.0.14 cents.
Adjacent to the land of Munirathanam an extent of Ac.0.35 cents he is having
Ac.0.14 cents of land and the same is in his possession and enjoyment over the said property till today. He filed suit in O.S.No.262 of 2-012 for permanent injunction and said suit is dismissed. He preferred appeal against the Judgment in AS.No.
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27/2016 and same is pending.
07. The following issues have been framed for trial in O.S.No.230 of 2014:
1. Whether the Plaintif is entitled to the relief of declaration his right and title over the plaint schedule property?
2. Whether the Plaintif is entitled to the consequential relief of permanent injunction?
3. To what relief.
SUIT IN O.S.NO.642 OF 2014
08.The Plaintif filed suit for seeking declaration of his right and title over the plaint schedule property an extent of Ac.0.14 cents and for costs of the suit.
09. The brief averments of the plaint in O.S.No.642 of 2014 are as follows:
The Plaintif submitted that he is the absolute owner of the plaint schedule property. Originally the plaint schedule property belonged to one C.Perumnal S/o
Munaswamy. He has purchased the plaint schedule property for true and valid consideration under Registered Sale Deed dated 09-06-2008 vide document
No.833/2008 and took possession of the same on the same day. He filed a suit in
O.S.262 of 2012 on the file of this court for grant of permanent injunction and the
same was dismissed and he preferred an appeal in A.S.No.27 of 2016 before the
Hon’ble VIII Addl. District Judge, Chittoor and the same is coming for hearing. Since
from the ancestors of his vendor's, vendor having right and title, possession and enjoyment over the plaint schedule property by his vendor. The Defendant causing troubles to him by stating he has no right over the plaint schedule property. Hence, the suit.
10. The brief averments of the written statement filed by Defendant is as follows:
A. The Defendant denied all the allegations mentioned in plaint further he admitted that the O.S.No.262 of 2012 and appeal in A.S.No.262 of 2012 and appeal in A.S.No.271 of 2016. The boundaries given by the Plaintif East : S.No.874-4 belongs to him is correct, West : land of Pattamma and her two sons namely
Manickya Velu and Kadiravelu is correct, North : land of Munrirathnam is not correct, the land of Sorajamma (his Mother) are situated in S.No.874/3A. The
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further name given on North is belongs to C.Perumal is not correct. and South : land of Chinnaraju who is also called Raghavappa is not correct. The South of plaint schedule property is belongs to the Plaintif.
B. The grant of injunction in respect of the suit property in favour of
Plaintif is already decided by this court in OS.No.262/2012 and at present in the present suit can not go to the decision on injunction. At best Plaintif can raise question before the appellate court. Now the Plaintif can not raise the same dispute in this court as the said is decided by this court by giving finding that the relief of injunction prayed by the Plaintif in OS.No.262/2012 is already dismissed.
He filed suit in OS.No.230/2014 on the file of this court for declaration and for consequential injunction in respect of his land in S.No.874/3B extent of Ac.0.10 2/3 cents and same is pending for trial. The Defendant in OS.No.230/2014 filed a petition in IA.No.526/2014 for appointment of Advocate Commissioner and he visited the suit locality with support of surveyor and hegiven report that suit schedule property in S.No.874/3B extent Ac.0.10 cents are belongs to him.
C. Periappa @ Munaswamy Naiker and Subramanyam Naiker purchased an extent of Ac.0.67 cents in S.No.874/3 and other property under Registered Sale
Deed dt.13-05-1942.Above two persons divided said property orally and the
Northern portion of Ac.0.35 centswas alloted to Subramanyam Naiker which is sub- divided as S.No.874/3A. The Southern portion of Ac.0.32 cents was alloted to the share of Periyappa @ munaswamy Naiker. TheGenealogy tree of Preiyappa and others mentioned. out of Ac.0.32 cents the Plaintif's vendor got 1/3 rd share and
Ragavappa @ Chinnarajulu got 1/3 rd share and his vendor C.Geetha got 1/3 rd share in the extent of Ac.0.32 cents. The Plaintif known about his vendor had only an extent of Ac.0.10 2/3 cents only. But the the Plaintif colluding with Perumal got creating the sale deed dt.09-06-2008 to the Ac.0.14 cents. He got Northern portion of Ac.0.10 2/3 cents of land in S.No.874/3B out of Ac.0.32 cents under Gift
Settlement Deed dt.31-03-2001 from his vendor C.Govindaswamy Naiker. There are no merits in the present suit. Hence, prays to dismiss the suit.
11. The following issues have been framed for trial in O.S.No.642 of 2017:
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1. Whether the Plaintif is entitled to the relief of declaring his right and title over the plaint schedule property an extent of Ac.0.14 cents?
2. To what relief.
12. On 14-06-2018 the counsel for Plaintif in OS.No.642/2017 filed memo stating that parties in OS.No.642/2017 and OS.No.230/2014 are same and relief also same in both suits and prayed to try both suits jointly, which is recorded. And both suits tried jointly. Hence, the evidence recorded in suit in OS.No.230/2014.
13. To prove his case the Plaintif in OS.No.230/2014 examined himself as
P.W.1 and documents Exs.A.1 to Ex.A.9. 3rd party examined as P.W.2 and Advocate-
Commissioner in IA.No.536/2014 examined as P.W.3 & Ex.C.1 & 2 marked through him. To prove his case the Defendant examined as D.W1 and marked Ex.B.1 to B14, and Advocate-Commissioner in IA.No.762/2017 in OS.No.642/2017 examined as
D.W.2, and Ex.C.1 to C3 marked and 3rd party examined as D.W.3 on his behalf.
As per evidence of PW3 the documents Ex.C.1 & 2 were marked, again through DW2 Ex.C.1 to C3 were marked. To avoid confusion the documents marked through DW2 i.e., Ex.C.1 to 3 are renumbered as Ex.C.3 to 5 for seriatum.
14. Heard the learned counsel for the Plaintiff as well as the Defendant.
15. ISSUES NO.1 & 2 in OS.No. 230/2014 & ISSUE NO.1 in
OS.No.642/2017:
1. Whether the Plaintiff is entitled to the relief of declaration his right and title over the plaint schedule property?
2. Whether the Plaintiff is entitled to the consequential relief of permanent injunction? AND
1. Whether the Plaintiff is entitled to the relief of declaring his right and title over the plaint schedule property an extent of Ac.0.14 cents?
For the sake of convenient discussion, and as the Issue No.1 in O.S.No. 230/2014 & ISSUE NO.1 in O.S.No.642/2017 are interdependent with each other, they are taken up together.
A. PW-1 is the Plaintiff in OS.No. 230/2014. PW2 is 3 rd party. Advocate-
Commissioner in IA.No.536/2014 examined as P.W.3. DW1 is the Defendant in
OS.No.230/2014. Advocate-Commissioner in IA.No.762/2017 in OS.No.642/2017
examined as D.W.2, and 3 rd party examined as D.W.3. PWs1 and 2 are in one hand and DW-1 & DW3 are in another hand filed examination in chiefs by way of affidavits as contemplated U/Or. XVIII Rule 4(1) C.P.C. PW1 and DW1 deposed in
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detail in accordance with their pleadings.
B. PW1 deposed in his cross-examination that the Defendant herein filed suit in O.S.No.262/2012 on the file of this court against him. Later he filed the present suit. The relief in O.S.No.262/2012 is that restraining the Defendants not tried to enter into the suit schedule property. The suit in O.S.No.262/2012 is dismissed on merits and that Plaintif preferred appeal in A.S.No.27/2016 on the file of Hon’ble
VIII Additional District Court, Chittoor and the appeal is allowed. They did not prefer 2nd appeal before Hon’ble High Court. Witness adds that Northern side was given to him in the said appeal, hence he did not prefer 2nd appeal. Witness adds that the said 0.35 cents belongs to his mother. Witness adds that the said 0.14 cents belongs to him. In the year 2008, Perumal, Raghavappa and Govindaswamy Naidu were alive. It was not mentioned in written statement filed in O.S.No.262/2012 that he was having share 10 2/3 and its specific boundaries, gift deed also. In the said gift deed, dated 31-03-2001 it was not specifically mention about the boundaries regard to shares. Witness volunteers that three members were having share in the property shown in Gift Deed. Perumal is the elder in their family. The Defendant got pattadhar pass book, title deed regard to 0.14 cents. Defendant herein filed suit in
O.S.No.642/2017 against him seeking declaration. He has not filed pattadhar pass
book, title deed and other revenue records respect to his share in property in
O.S.No.262/2012. Revenue Officials i.e. Tahsildar, Puttalapattu given information
that originally Sy.No.874/3B, then for convenience they gave Sy.No.874/3B/A. In 1-B register it was mentioned Sy.No.874/3A an extent Ac.0.33.02 cents. The total extent in Sy.No.874/3A is Ac.0.35 cents and in Sy.No.874/3B is Ac.0.32 cents. He was not filed any photos or records to show that Defendant forcibly entered into his land.
He has not filed revenue records i.e.pattadar pass book and title deed. The appeal filed before RDO court is still pending. He has not filed Ex.A7 in the suit which filed by him in O.S.No.242/2012. The date filing of present suit he has not filed Ex.A7 to
Ex.A9. On the date of filing of suit i.e. O.S.No.242/2012 and present suit he has filed 1-B, adangal and pattadhar pass book respect to Sy.No.874/3B. He denied the suggestion that the property situated in Sy.No.874/3A is an extent of 0.35 cents allotted to him and that the property situated adjacent Sy.No.874/3A is concerned
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to the Sy.No.874/3B an extent of 0.14 cents belongs to defendant herein. Further he denied rest of the suggestions.
C. PW2 deposed in his cross-examination that he knows the suit Sy.No.874/3 B an extent of 32 cents and boundaries follows: North – Land of Sarojamma South - Land of Hari Krishna West – Land of Manikyam East – Milk diary He knows the Defendant Hari Krishna filed suit against Plaintif herein at first in
O.S.262 of 2012 on the file of this court. He does not know the relief asked by
Defendant herein in O.S.262 of 2012. He knows that on 09-06-2008 Defendant purchased land, and in it an extent mentioned 14 cents in Sy.No.874/3 B. Witness volunteers that total extent 32 cents in Sy.No.874/3 B was divided by three brothers and Defendant got only 10 2/3 cents. He does not know whether within boundaries an extent of 10 ¾ situated or not. He does not know the date when panchayat was held and he was not present in said Panchayat. He denied the suggest that vendor of Defendant sold his share of property i.e 14 cents. And that Revenue officials issued pattadhar pass book in favour of Defendant respect to 14 cents to property.
Further he denied rest of the suggestions.
D. PW3 isAdvocate-Commissioner in IA.No.536/2014, he deposed in Chief examination that as per orders in I.A. No. 526/2014 he was appointed as an advocate commissioner to visit suit schedule property to note down physical features of the same with the assistance of Mandal Surveyor. He visited suit schedule premises along with Mandal Surveyor on 30-05-2015. The counsels for
Petitioner and Respondent were present. He identified the warrant schedule property with the help of Mandal Surveyor, Petitioner, Respondents and their counsels. He noted down the physical features and filed report along with Mandal
Surveyor’s sketch. Ex.C1 is commissioner report. Ex.C2 is Mandal Surveyor’s field sketch.
In his cross examination he deposed that he has not filed his sketch and photos of petition schedule property. Witness volunteers that he has filed Mandal surveyor’s sketch. Witness volunteers that since mandal surveyor given sketch, hence he has not filed his sketch. He has not specifically mentioned in Ex.C1 about
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owners of Eastern and Western boundaries. The Mandal Surveyor given sketch after two days of our visit. In Ex.C2, the date mentioned as 04-06-2015 beneath the signature of Mandal surveyor. There was no signature of Tahsildar as counter sign in
Ex.C2. He filed Ex.C1 on 15.07.2015. He denied the suggestion that he has not followed due process of law as per orders in I.A. No. 536/2014. Further he denied rest of the suggestions.
E. DW1 deposed in his cross-examination that he was Defendant in present suit and Plaintiff in O.S.No.642/2017 on the file of this court. Both suits are tried jointly. He filed suit in O.S.No.642/2017 respect to Sy.No.874/3B with an extent of
Ac.0.14 cents by restraining the defendants. The total extent in Sy.No.874/3B is
Ac.0.32 cents. He purchased 0.14 cents from one Perumal on 09-06-2008. He does not know the extent Ac.0.32 cents were owned by three persons. The boundaries mentioned in his sale deed are on North – land of Plaintiff herein, West – lands of
Pattammal, Manickyavel and south – Chinnaraju, East – land in Sy.No.874/4. He does not know the total extent in Sy.No.874/3A. The total extent in Sy.No.874/3A is
Ac 0.35 cents. In the present suit, the commissioner visited suit schedule property and measured the property with the assistance of surveyor. He was present at the time and objected advocate commissioner, not to measure his property. He filed the present suit basing on sale deed executed by Perumal in his favour and he prayed for decree the suit. He does not remember whether Plaintiff herein got property to an extent of Ac.0.10 ¾ cents in Sy.No.874/3B by way of gift on 31-03- 2001 i.e. Ex.A5. He does not know whether his vendor Perumal signed in Ex.A5 as a witness. He filed suit in O.S.No.262/2012 on the file of this court for sought relief of permanent injunction. Said suit was dismissed on merits. Witness adds that he preferred appeal in A.S.27/2016 and the same is decreed. In addition to appeal schedule property his vendor Perumal is having 0.14 cents of land on north of appeal schedule property. On north of Perumal property, Plaintiff land is situated.
He denied the suggestions that the Plaintiff herein was having Ac.0.10 ¾ cents in suit survey number. And that his vendor Perumal having his share in Ac.0.10 ¾ cents only and he created the document respect to 0.14 cents. And that he handedly occupy the land of Plaintiff herein and filed false suit. Further he denied
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rest of the suggestions.
F. DW2 isAdvocate-Commissioner in IA.No.536/2014, he deposed in Chief examination that he was appointed as an advocate commissioner in
I.A.No.762/2017 in O.S.No.642/2017 to note down the physical features of warrant schedule property. Accordingly, I visited the warrant schedule property on 16-12- 2017 at about 11.00 AM in the presence of both parties and their counsels. I have answer the work memos given by the both counsels and the boundaries of warrant schedule property is tallied and survey number of the warrant property is 874/3B is tallied and note down the physical features and filed report along with sketch and photos number in 15 along with C.D. Ex.C3 is commissioner report. Ex.C4 is commissioner’s sketch. Ex.C5 is photos number in 15 along with C.D.
In his cross-examination he deposed that he has not received field sketch from this Hon’ble court, hence he has not filed the same. The warrant did not disclose to take the assistance of mandal surveyor to note down physical features. At the time of his visit the Defendant has not disputed the boundaries except stating that on northern boundary owner is one Perumal was died and the same was stated orally.
The total extent of warrant schedule property is Ac.0.32 cents situated in
Sy.No.874/3B. On northern boundary to above said 0.14 cents is land of C.Perumal and land of Munirathnam. At the time of his visit Perumal property was not shown to him, but stated Perumal was died. Northern boundary was tallied with respect to land of Munirathnam. Today he has produced work memos of both plaintif and defendant and notice copy along with memo. He has endorsed on work memo given by defendant in O.S.642 of 2017 that the documents are not received.
Witness volunteers that he is not party to the suit and he has not received the documents. He has filed rough sketch. He is not mentioned boundaries in Ex.C.2 but he has mentioned boundaries in Ex.C.1. He cannot say the total extent in
S.No.874/3B is o.32 cents. He has not given measurements for warrant schedule property in Ex.C.1 and Ex.C.2. Witness volunteers that the warrant only mentioned in note down physical features of schedule property and not directed to measure the property. He denied the suggestion that to note downs physical features means to note down measurements including. He has not verify rough sketch of plaintif.
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He has mentioned in Ex.C.1 southern boundary property of Chinnaraju. Northern boundary is Munirathnam and Perumal. He cannot say 0.14 cents of warrant schedule property existing on middle of 0.32 cents. He deposed that he has not explained in Ex.C.1 without the point No.7 of work memo of defendant. He denied the suggestion that he has intentionally not received the documents and that he has intentionally not received documents of Defendant. Further he denied rest of the suggestions.
G. DW3 deposed in his cross-examination that the suit S.No.874/3B. The total extent is 0.32 cents in Sy.No.874/3B. Advocate commissioner visited suit schedule property with assistant of Mandal Surveyor. He knows
Harikrishna/Defendant filed suit in O.S.No.642/2017 and mentioning property situated in Sy.No.874/3B an extent of 0.14 cents and boundaries for the said property are as follows north – land of Munirathnam, south – land of Raghavappa@
Chinnaraja, east – land in Sy.No.874/4 and west – land of Pattamma and others.
Advocate commissioner visited suit property in O.S.No.642/2017 without assistance of surveyor. Above said boundaries were mentioned in plaint schedule in
O.S.No.642/2017. He denied the suggestions that above said boundaries are not
mentioned in plaint schedule in O.S.No.642/2017. And that he was deposing false by stating above boundaries as he is relative to Defendant. Further he denied rest of the suggestions.
H. The learned counsel for Plaintif in OS.No.230/2014 and Defendant in
OS.No.642/2017 argued that the Plaintif got the plaint schedule mentioned
property and other properties by way of Gift Settlement Deed dated 31-03-2001 situated in S.No.874/3B of Muthireveua Village of Puthalapattu revenue Mandal to an extent of Ac.0-10 2/3 rd cents. The Defendant in OS.No.230/2014 and Plaintif in
OS.No.642/2017 in view of his sale deed attempt to encroach land of Plaintif in
OS.No.230/2014. The documents and evidence is supporting to the case of the
Plaintif in OS.No.230/2014, and he established his case, and Defendant in
OS.No.230/2014 failed to prove his case. Hence, prays to decree the suit in
OS.No.230/2014 and dismiss the suit in OS.No.642/2017.
I. The learned counsel for Defendant in OS.No.230/2014 and Plaintif in
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OS.No.642/2017 argued that the evidences of PW1 to PW3, and documents Ex.A.1
to A8 an Ex.C1 & 2 were not supporting the case of Defendant in OS.No.230/2014 and that the Plaintif in OS.No.230/2014 failed to proved his contentions, the
Defendant proved his contentions, hence prays to dismiss the suit in
OS.No.230/2014 and Decree the suit in OS.No.642/2017.
J. As seen from the contentions of both parties, the admitted fact is that
Originally one Periyappa Naiker @ Munaswamy Naiker and Subramanyam Naiker purchased an extent of Ac.0.67 cents in S.No.874/3 and other property under Regd.
Sale Deed dt.13-05-1942 from Narayana Swamy Naiker and other and since then they are in possession of the same. Above said persons got divided the Ac.0.67 cents of land in which Northern portion to an extent of Ac.0.35 cents was alloted to
Subramanyam Naiker and remaining Southern portion to an extent of Ac.0.32 cents alloted to Periyappa Naiker @ Munaswamy Naiker. Periyappa Naiker @
Munaswamy Naiker had three sons namely Muniswamy Naiker, Raghavappa and
Govindaswamy Naiker. It is settled law that admitted facts need not be proved.
K. It is the case of Plaintifin OS.No.230/2014 got the plaint schedule mentioned property and other properties by way of Gift Settlement Deed dated 31- 03-2001 situated in S.No.874/3B to an extent of Ac.0-10 2/3 rd cents. The
Defendantin OS.No.230/2014 got the property by way of Registered Sale Deed.
The Plaintif in OS.No.230/2014 and the Plaintif in OS.No.642/2017 are sought relief of declaration of their right and title, possession and enjoyment of their respective properties. So the burden is on the Plaintif in OS.No.230/2014 and the
Plaintif in OS.No.642/2017. But the evidence adduced in the suit in
OS.No.230/2014. The Plaintif in OS.No.230/2014 examined as PW1, 3rd party
examined as PW2 and Advocate-Commissioner examined as PW3 and documents marked as Ex.A.1 to A8. And the Defendant in OS.No.230/2014 & the Plaintif in
OS.No.642/2017 examined as DW1, Advocate-Commissioner examined assss DW2
& 3rd party examined as DW3 and documents marked as Ex.B.1 to B14.
L. As per plaint schedule in OS.No.230/2014, the land situated in
Sy.No.874/3B total extent Ac.0.32 cents in this Ac.0.10 cents situated with in the following boundaries : North : Land in Sy.No.874/3A belongs to Sarojamma, South :
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Land of Defendant, East : Land in Sy.No.874/4 belongs to Plaintiff, West : Land of
Manikyavelu, Pattamma.
M. As per written statement schedule in OS.No.230/2014 and plaint schedule in OS.No.642/2017, the land situated in Sy.No.874/3B total extent
Ac.0.32 cents in this Ac.0.14 cents situated with in the following boundaries : East :
Land in Sy.No.874/4, West : Land of Pattamma, Manikyavelu, Kadirivelu, North :
Land Munirathnam and C.Perumal, South : Land of Chinnaraju.
So it clears that the plaint schedule property in OS.No.230/2014 and the plaint schedule property in OS.No.642/2017 are different extent, and different boundaries except East & West, and said properties are situated in same survey number.
N. The documents relied up on by the Plaintif are Ex.A.1 to A9.Ex.A.1 served copy of plaint in O.S.No.262 of 2012 of this court. The said suit was filed by
A. Hari Krishnana @ Hari Krishna against T.Munirathnam for seeking permanent injunction with respect to the property situated in Muturevulu revenue accounts in
Sy.No.874-3B total extent Ac.0.32 cents in this 0.14 cents situated within the following boundaries : East – Sy.No.874-4, West : land of Pattamma, Maokvelu ,
Kadhirivelu, North : land of Munirathnam and C.Perumal and South : land of
Chinnaraju.
O. Ex.A.2 Served Copy of Written Statement of Defendant (T.Munirathnam) along with sketch filed in O.S.No.262 of 2012 of this court. In said written statement he denied pleadings of plaint and stated the vendor of Plaintiff got only
Ac.0.10 2/3 cents in Sy.No.874/3 and he got delived possession of the same only
Ac.0.10 2/3 and stated genealogy of Periyappa that Periyappa @
Munaswamynakar and Subramay nakar purchased land in suit survey numerbs under registed sale deed dt 13-5-1942. Both are got divided the land in suit survey number in total extent Ac.0.67 cents in which northern portiion of Ac.0.35 cents was given to Subramanyamnakar and other portion of Ac.0.32 cents was given to
Periyappa @ Munaswamynyakar. Sad Peria[[a had theree sons namely Pedda
Munaswamynayakar, Raghavappa and Govindaswamy nayakar the said three brothers got Ac.0.10 2/3 cents in the suit survey number. Govindaswamynakar
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executed gift settlement deed in favour of Munirathnam in the suit land an extent of 0.10 2/3 cents under gift deed dated 31-3-2001 since then Munirathnam is enjoyment of the same. In the said Gift deed the vendor of plaintiff Perumal signed as a witness. Plaintiff obtained sale deed from Perumal an extent of 0.14 cents under sale deed even the said Perumal got only 0.1023/ cents.
P. Ex.A.3 Geneleogoly trees of Plaintiff's vendor Govindaswamy nayakar in the said genealogy tree shown : Periyappa @ Munaswamynayakar and his wife
Munemma had three sons and said three brothers having children the vendor of plaitniff Perumal is son of Peddamunaswamynayakar T.Mun irathanma is Son-in- law of Govindaswamynayakar Ex.A.4 Certified copy of sale deed dt 13.05.1942.
said sale deed was admitted by both parties. Ex.A.5 certified copy of Gfit deed
dated 31-03-2001 executed by Govindaswamy nayakar in favour of T.Munirathnam
(Plaintiff in OS.No.230/2014) the schedule shown Sy.Nos 873-3, 874-3B total extent 0.32 cents in this joint Ac.0.10 2/3 cents and other survey numbers.
Q. Ex.A.6 Certified Copy of Appeal petition before RDO Chittoor, this petition filed by T.Munirathnam (Plaintiff in OS.No.230/2014) against A.Harikrishnan @ Hari
Krishna (Defendant in OS.No.230/2014) seeking to enquired into the matter and canceled pattadar pass book and title deed issued to respondent in respect of appeal schedule mentioned properly. Schedule shown as : Sy.No.874/3B total extent Ac.0.32 cents. Ex.A.7 pattadar passbook of Plaintiff in OS.No.230/2014 (T.Munirathnam), it shown suit Sy.No.874/3B an extent of Ac.0.1033, Ex.A.8
Certified Copy of 1-B namuna issued in faovur of Plaintiff by Tahsidlar Puthalapattu mandal which obtained through mee-seva dated 14.03.2019. in which suit
Sy.No.874/3B shown extnt 0.1033 Ex.A.9 Certified Copy of Adangal /Phani for the fosli 1428 issued in favour of plaintiff by Puttalapattu mand which obtained mee- seva which shown 874/3B an extent 0.1033.
R. The documents relied up on by the Defendant are Ex.B.1 to B14. Ex.B.1 is
Certified Copy of sale deed dated 09-06-2008 executed in favour of A.Harikrishnan by C.Perumal and his minor son Lokesh. Wherein mentioned Schedule as :
Sy.No.874-3B total extnen Ac.0.32 cents in this Ac.0.14 cents situated in boundaries East – Sy.No.874/4 West lands of Pattamma, Manikyavelu and
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Khadirvelu, North – land of Munirathnam South- land of Chinnaraju. Ex.B.2
Certified Copy of adangal /phani which obtained through mee-seva issued in favour of A.Harikrishnan with respect to the Sy.No.874/3B/A to an extent of Ac.0.14 cents.
Ex.B.3 Certified Copy of plaint in O.S.262/2012 on the file of this court which filed by A.Harikrishnan @ Harikrishna against T.Munirathanam. Ex.B.4 Certified Copy of
I.A.No.315/2014 in CMA dated 23-4-2014 of Hon'ble District Judge, Chittoor. The
Application and section 5 of limitation act filed by T.Munirathnam the respondent in
I.A.741 of 2012 in O.s.262 of 2012 under order 39 rule 1 and 2 CPC. and the result, the petition fails and accordingly dismissed. Ex.B.5 E.C with respect to Sy.No. 3B extent 14 cents executed by Perumal in favour of Harikrishna with regard to the pertion 1-10-2007 to 23-10-2014. Ex.B.6 rough sketch which shown land of
Chinnaraju situated southern side and land of T.Munirathnam and Perumal Ac.0.35 cents in between SyNo.874/3B an extent Ac.014 cents were shown. East –
Sy.No.874/4 , West – lands of Pattamma, Manikyavelu and Khadrivelu.
S. Ex.B.7 Certified Copy of Judgment dated 21-08-2018 in A.S.No.27 of 2016 which filed by A. Harikrishnan @ Harikrishna against T.Munirathnam. Filed by
Defendant in O.S.No. 230 of 2014 against judgment & decree in O.S.No.262 of 2012 wherein findings were given “ The Plaintif dropped his ancestral property of vendor of Plaintif purchased plaint schedule property in the year 2008 immediately after purchase his name entered in revenue records. In gift deed there was no specific boundaries mentioned and he did not file revenue record pertaining to the Suit survey number. The Defendant did not to prove his property also neglected in the plaint schedule property. Ex.B.8 Certified Copyof decree in
A.S.262 of 2012 and A.S. 27 of 2016. ExB.9 Certified Copy of pattadar pass book
of Defendant in O.S.230 of 2014 which shown Suit survey number an extent of 14 cents. Ex.B.10 is Adangal/phani an extent of 0.14 cents issued in favour of
Defendant. Ex.B.11 Adangal which shown in favour of Defendant in O.S.230 of 2014. ExB.12 Certified Copy of adnglal /phani for fosili 1427 obtained through meeseva dt. 11-10-2017 issued in favour of D.W.1 in respect of Sy./No.874/3B/A
Ex.B.13 is Certified Copy of decree and order in I.A. 741/2012 in O.S. 261 of 2012.
The said petition filed under order 39 rule 1 and 2 CPC filed by A.Harikrishna
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against T.Munirtahtnam seeking temporary injunction in the said petition is allowed by granting temporary injunction. Ex./B.14 Certified Copy of 1-B extract obtained through mee -seave dated 23-12-2019 issued in favour of A.Harikrishnan with respect of Sy.No.874/3B/A to an extent of Ac.0.14 cents.
T. The Defendant in OS.No.230/2014 got an Advocate commissioner appointed and he has inspected the suit schedule property and has filed his report with Mandal Surveyor's sketch which marked as Ex.C.1 & 2. As seen from report
Ex.C.1 it clearly mentioned on Eastern side of warrant schedule property there is
S.No.874/4 is belongs to Milk Centre. And there is fencing on the Western side &
Northern side of warrant schedule property i.e., S.No.874/3B an extent Ac.0.10 2/3 cents. Ex.C.2 shown S.No.874/3A & S.No.874/3B and its extents.
Advocate commissioner appointed in IA.762/2017 in OS.No.642/2017 and examined as DW2. He filed report, sketch & photos. As seen from report Ex.C.3 it clearly mentioned there is a 6 pillars on northern side boundary and iron fencing is covered. The extent of Ac.0.14 cents is no dispute on Petitioner/Plaintiff and disputed by the Respondent/Defendant.
As per evidences of PW3 and DW2 the warrant schedule properties in both suits in OS.No.230/2014 and in OS.No.642/2017 are tallied.
U. From the beginning the Plaintiff in OS.No.230/2014 contended that as per oral partition between the family members i.e., C. Govindaswamy Naicker,
Pedda Munaswamy Naiker who is father of Perumal (vendor of Defendant) and
Ragavappa @ Chinnaraju got divided the said Ac.0.32 cents in to three equal shares i.e., each got an extent of Ac.0.10 2/3 cents. But no proof was filed either oral or documentary i.e., examine any of the family members of C. Govindaswamy
Naicker, Pedda Munaswamy Naiker and Ragavappa @ Chinnaraju. In that regard no reasons were explained by the Plaintiff.
V. It was elicited by the counsel for Defendant from PW1 that A.S.No.27/2016 on the file of Hon’ble VIII Additional District Court, Chittoor and the appeal is allowed. They did not prefer 2nd appeal before Hon’ble High Court. Witness adds that Northern side was given to him in the said appeal, hence he did not prefer 2nd appeal. So it clears that the Judgment in A.S.No.27/2016 is final. The documents in
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Ex.A1 and Ex.B3 are same i.e., plaint copy in OS.No. 262/2012 on the file of this court. As already discussed above the Plaintif in OS.No.642/2017 and Defendant in OS.No.230/2014 filed above suit in OS.No. 262/2012 respect to Ac.0.14 cents in
Sy.No.874/3B for relief of permanent injunction. So the possession and enjoyment of the Plaintiff in OS.No.642/2017 and Defendant in OS.No.230/2014 respect to
Ac.0.14 cents in Sy.No.874/3B is confirmed by appellate court. Even the Plaintiff in
OS.No.642/2017 and Defendant in OS.No.230/2014 established his title by filing
registered Sale Deed.
W. As per documents filed by both parties, they are shown the suit schedule property in S.No.230/4 and in O.S.642 of 2017, and are supporting to their respective contentions. The plaint schedule property in O.S.230 of 2014 is situated on Northern side of plaint schedule property in O.S.No.642 of 2017. The
Defendant in O.S.No.230 of 2014 is not claimed the property of Plaintif in O.S.230 of 2014. The Plaintif in O.S.230 of 2014 failed to establish that the Defendant in
O.S.230 of 2014 was encroached the Plaintif's land an extent Ac.0.10 2/3 cents.
Hence, the plea of Plaintif is not proved. As Periayappa three sons got Ac.0.10 2/3 cents each is not established by examining his vendor i.e., father-in-law of Plaintif in OS.No.230/2014. So the Plaintif in OS.No.230/2014 failed to prove that, the
Defendant encroached his property and he established his property situated in
Sy.No.874/B an extent Ac.102/3 cents, and the Defendant in O.S.230 of 2014 established his extent of property in suit survey number. Since, properties claimed by the both parties in both suits are diferent, and they are entitled for declaration in respective of their extents of property in suit survey number. And also the both parties in both suit are entitled for permanent injunction respect to their properties i.e., in O.S.No.230 of 2014 and the plaintif in O.S.642 of 2017 established his property an extent of Ac.0.14 cents which purchased in sale deed from C.Perumal by producing cogent evidence and documents. Hence, the Plaintif in O.S.642 of 2017 is entitled for declaration of property mentioned in plaint schedule.
X. In view of above discussion, the documents filed by the Plaintif and
Defendant shows the properties mentioned in plaint schedule were separately in possession and enjoyment of the parties. Even the admission of PW1 shows that his
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father-in-law given Ac0.10 2/3 cents of property, and he has not prefer 2nd appeal against the Judgment in AS.No.27/2016. When the parties are in exclusive possession and enjoyment of the properties, by mutating their names in the revenue records respect to their extent of properties. The plea of the Plaintif in
OS.No.230/2014 that the Defendant encroached his land is not proved. Therefore,
this court is concluded and holds that the Plaintif in OS.No.230/2014 is established his title over the plaint schedule property and Plaintif in OS.No.642/2017 is established his title over the plaint schedule property.
Therefore, the Issues No.1 & 2 in OS.N0.230/2014 and Issue No.1 in
OS.N0.642/2017 are answered accordingly.
16. ISSUE NO.3 in OS.No. 230/2014 & ISSUE NO.2 in OS.No.642/2017:
To What relief?
In the result, the suit in OS.230 of 2014 is decree by declaring right
and title of the Plaintiff over plaint schedule property and by granting
permanent injunction restraining the Defendant, his men and agents by
way of interfering peaceful possession and enjoyment of suit schedule
property and suit in O.S. 642 of 2017 is decree by declaring the Plaintiff's
right and title over plaint schedule property an extent of Ac.0.14 cents.
Both parties do bear their own costs.
Dictated to the Personal Assistant, transcribed by her corrected and
pronounced by me in the Open Courton the 19th day of February, 2020.
Principal Junior Civil Judge,
Chittoor.
APPENDIX OF EVIDENCE
Witness examined on behalf of
Plaintiff :
PW-1 : T. Munirathnam.
PW-2 : M. Subramanyam.
PW-3 : T. Balaji (Advocate-Commissioner).
Defendant:
DW-1: A. Harikrishnan @ A. Harikrishna.
DW.2 : N. Vishwanatha Reddy (Advocate-Commissioner).
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DW-3 : T. Rajagopal Naiker.
Exhibits marked on behalf of
Plaintiff :
Ex.A-1 : Served Copy of plaint in O.S.No.262 of 2012 of this court.
Ex.A-2: Served Copy of Written Statement of Defendant (T.Munirathnam) along with sketch filed in O.S.No.262 of 2012 of this court.
Ex.A-3: Genealogical Tree of Plaintiff's Vendor C. Govindaswamy Naicker.
Ex.A-4: Certified Copy of Sale Deed, dated 13-05-1942.
Ex.A-5: Certified Copy of Gift Deed, dated 31-03-2001.
Ex.A-6: Certified Copy of Appeal Petition before RDO, Chittoor.
Ex.A-7: E-Pattadar Pass Book of Palintiff.
Ex.A-8: Certified Copy of 1-B Namoona issued in favour of Plaintiff by Tahsildar, Putalapattu Mandal which obtained through Mee-seva, dated 14-03-2019.
Ex.A-9: Certified Copy of Adangal/Pahani for the fasali 1428 issued in favour of Plaintiff by Tahsildar, Putalapattu Mandal which obtained through mee-seva, dated 14-03-2019.
Exhibits marked through PW3
Ex.C-1 : Commissioner Report.
Ex.C-2 : Mandal Surveyor’s field sketch.
Defendant:
Ex.B-1 : Certified Copy of Sale Deed, dated 09-06-2008.
Ex.B-2 : Certified copy of Adangal.
Ex.B-3 : Certified copy of plaint in O.S.No.262/2012 on the file of Principal Junior Civil Judge’s Court, Chittoor.
Ex.B-4 : Certified copy of I.A.No.315/2014 in CMA /2014, dated 23-04-2014 of
District Judge, Chittoor.
Ex.B-5 : E.C. of defendant relating to S.No;.874/3-B for an extent of Ac.0.14 cents from 01-10-2017 to 23-10-2014.
Ex.B-6 : Rough Sketch.
Ex.B-7 : Certified Copy of Judgment, dated 21-08-2018 in A.S.27/2016.
Ex.B-8 : Certified Copy of decree, dated 21-08-2018 in A.S.27/2016. Ex.B-9: Certified Copy of Pattadhar Pass Book and Title Deed of Defendant.
Ex.B-10: Certified Copy of Adangal/Pahani for the fasali 1425 obtained through mee-seva, dated 11-10-2017 issued infavour of DW1.
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Ex.B-11 :Certified Copy of adangal/pahani for the fasali 1426 obtained through mee-seva, dated 11-10-2017 issued in favour of DW1 respect to Sy.No.874/3B/A. Ex.B-12 : Certified Copy of adangal/pahani for the fasali 1427 obtained through mee-seva, dated 11-10-2017 issued infavour of DW1 respect to Sy.No.874/3B/A. Ex.B-13 : Certified Copy of decree and order in I.A.No.471/2012 in
O.S.No.262/2012.
Ex.B-14 :Certified Copy of 1-B extract obtained through mee-seva, dated 23.12.2019.
Exhibits markedthrough DW2
Ex.C-3 : Commissioner Report. Ex.C-4 : Commissioner’s sketch. Ex.C-5 : Photos number in 15 along with C.D.
PJCJ., CTR.