O.S.No.61/2013: 1 :SCJ, Allagadda
IN THE COURT OF THE SENIOR CIVIL JUDGE, ALLAGADDA.
PRESENT: Smt. S. Sujatha,
Senior Civil Judge, Allagadda.
Thursday, the 10th Day of August, 2023.
O.S.No.61/2013
1. Giddesabugari Khaja Bi
2. Giddesabugari Pedda Md. Ghouse …. Plaintiffs
Versus
1. Rameeza Bi
2. Mahaboob Bi
3. Jailan Bi
4. Hussain Bi
5. Giddesabugari Chinna Bibi @ Beelu * Amended as per orders in I.A.No.27/2019, dt.08.01.2020. … Defendants
This suit is coming up for final hearing before me on 11.07.2023 in the presence of Sri S.Md. Haneef and Sri Shaik Mahammed Rafi, Sri P.S. Mahaboob Basha, Advocates for the Plaintiffs and of Sri B. Neelakanteswaram and Sri E. Mallikarjuna Reddy, Advocates for the Defendants No.1 & 5, and the Defendants 2 to 4 remained exparte, upon hearing both sides, having perused the material on record and the matter having stood over for consideration till this day, this Court delivered the following:-
J U D G M E N T
The Plaintiffs filed the suit under Order VII Rules 1 and Sec.26 of Code of Civil Procedure against the defendants for declaration of their right and title over the Plaint Schedule Properties, and also for declaration of Sale Deed
dated 07.12.2010 as null and void and not binding on the plaintiffs, etc.,
reliefs.
The brief averments of the plaint are that :
2.The plaintiff No.1 is the absolute owner of the plaint schedule item No.1 and the plaintiff No.2 is the absolute owner of the plaint schedule
Item No.2 to an extent of Ac.1.28 cents each, situated in Sy.No.1069/1B of
Kota Kundukuru village, Allagadda Mandal. Plaintiff No.1 is paternal aunt of plaintiff No.2. Originally the plaint schedule item Nos.1 & 2 and some extent
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in Sy.No.1069/1B belongs to Mulla Moolapalli Hussain Sab @ Zeethre Sab of
Kota Kundukuru village, who had three sons viz., 1) Pedda Ghouse Peera Sab,
2) Nadipi Ghouse Peera Saheb @ Chinna Ghouse Peera Sab and 3) Ghouse
Hussain. On 23.12.1958 said Mulla Moolapalli Hussain Sab @ Zeethre Sab sold an extent of Ac.3-85 cents in Sy.No.1069/1B to his three sons under a
Registered Sale Deed vide Doc.No.2063/1958 and delivered vacant possession.
Since the date of purchase, the said three sons of Mulla Moolapalli Hussain
Sab have jointly enjoyed the said property and later got divided among them orally, and got Ac.1.28 cents each in Sy.No.1069/1B apart from other properties. The revenue authorities issued pattadar passbooks and title deeds in their names as per their respective extent.
Prior to the division of the land in Sy.No.1069 in between three brothers, they used to enjoy the said property jointly with their personal cultivation. The revenue authorities entered their names in Adangal extract as possessors, enjoyers and pattadars of plaint schedule land, and issued separate pattadar passbooks in their names. Later Pedda Ghouse Peera Sab died leaving behind the plaintiff No.1, and he was issued pattadar passbook by the revenue authorities to an extent of Ac.1.28 cents pertaining to item No.1 of plaint schedule property. In the oral family partition among family members of
Nadipi Ghouse Peera Sab, the plaintiff No.2 who is the eldest son of Nadipi
Ghouse Peera Sab got Ac.1.28 cents of plaint schedule item No.2 towards his share and the remaining brothers have secured other properties. The revenue authorities also issued pattadar passbooks in the name of plaintiff No.2 pertaining to item No.2 of plaint schedule. The plaintiffs 1 & 2 have jointly enjoying the plaint schedule items No.1 and 2 properties continuously with absolute rights without any objection or obstruction from anybody.
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While so, the defendant No.1 who is the wife of one Mahaboob Basha resident of Kota Kandukuru village, in the year 2010 fraudulently got obtained a registered sale deed from Pedda Mahaboob Sab who is the husband of defendant No.2 and father of defendant No.3 & 4 and the defendant No.5 vide Doc.No.4629/2010 in Sy.No.1069/1B to an extent of Ac.3.00 cents pyki
Ac.3.85 cents. Actually the vendors of defendant No.1 have no right or authority over the said survey number, and they owns land in Sy.No.1069/1 of Kota Kandukur village to an extent of Ac.4.50 cents. The land in
Sy.No.1069/1B is away from the land in Sy.No.1069/1. Pedda Hussain Sab, father of Late Pedda Mabu Sab had purchased the land in Sy.No.1069/1 from
Linga Reddy, S/o Bheem Reddy Subba Reddy of Krishnapuram village on 03.07.1939 under document No.1493/1939. Due to misunderstandings and petty quarrels between the family of plaintiffs and the family of defendant
No.1, the defendant No.1 with the help of her husband obtained Registered
Sale Deed, dated 07.12.2010 vide Doc.No.4629/2010 from Pedda Mabu Sab (husband of D2 and father of D3 & D4), and defendant No.5 who are strangers to the plaint schedule properties and they have no lands in
Sy.No.1069/1B. They are the owners of land in Sy.No.1069/1 only. After obtaining the fraudulent sale deed, the defendant No.1 has been trying to disturb the peaceful possession and enjoyment of the plaintiffs 1 & 2, and finally in the month of March, 2013 the defendant No.1 along with her men and agents tried to trespass into the plaint schedule items No.1 & 2, and the same was averted by the plaintiffs with the help of neighbouring land owners.
The defendant No.1 and her men while leaving the plaint schedule property warned plaintiff No.2 that they will dispossess the plaintiffs from the plaint schedule properties. So, the plaintiffs 1 & 2 held a panchayat at Kota
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Kandukuru village in which the elders adviced the defendant No.1 and her husband not to harass the plaintiffs No.1 & 2.
It is further averred that the defendant No.1 and her husband are sincerely trying to grab the lands of plaintiffs 1 & 2 with the aid of sale deed
dated 07.12.2010, and also trying to take loans from the bank by producing
fabricated and fraudulent deed. The plaintiffs No.1 & 2 have submitted an application before the registration authorities of Allagadda to cancel the fabricated deed of the defendant No.1. But the authorities expressed that unless the defendant No.1 and her vendors approached before them, they would not cancel the sale deed of defendant No.1. Hence, the plaintiffs constrained to file this suit.
3.The defendant No.1 filed written statement and the same is adopted by defendant No.5. 1st defendant denied all the allegations of the plaint. She contended that the plaint schedule land and other land an extent of Ac.3-85 cents originally belongs to one Bheemreddy Linga Reddy, and from him Pedda Hussain Sab purchased under Registered Sale Deed, dated 03.07.1939, and after the death of Pedda Hussain Sab, his son Pedda Mabu
Sab and his brother’s wife i.e. 5th defendant got succeeded the same. Later, on 07.12.2010 the said persons sold the schedule land to her by executing a
Registered Sale deed, and delivered the possession of the same, and from then she is in rightful possession of the same. The plaintiffs are having no manner of right over the schedule land and they never in possession of the same at any time. She further contended that she came to know that the son of 1st plaintiff by name Giddesabgari Mulla Abdul filed a suit in O.S.No.19/2010 against her husband on the file of JCJ, Allagadda for permanent injunction with regard to the same schedule land, and the said suit is pending. In the
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said suit O.S.No.19/2010 the son of 1st plaintiff pleaded that the schedule land is Government land, and it was allotted to him by way of ‘D’ Form patta, and he is in possession of the same. The boundaries mentioned in the schedule are wrong.
Since the original owners sold the schedule land to the 1st defendant under Registered Sale Deed for valid consideration, and delivered the possession of the said land to the 1st defendant, the said document is valid one, and not liable for cancellation. The plaintiffs filed the above suit by suppressing the original facts and even though they are well aware of the proceedings of the suit in O.S.No.19/2010, they did not mention the same in this suit, and suppressed the same and filed the suit with false claims. On the above grounds, prayed the Court to dismiss the suit.
4.Basing on the above pleadings, my predecessor has settled the following issues for trial:-
1.Whether the plaintiffs are in possession and enjoyment of suit schedule property?
2.Whether the Registered Sale Deed dated 07.12.2010 in favour of 1st defendant is binding on the plaintiffs?
3.Whether the plaintiffs are entitled for the reliefs as prayed for?
4.To what relief?
5.Since the plaintiffs sought for declaration of their right and title over the plaint schedule property and sale deed dated 07.12.2010 as null and void and not binding on them as main reliefs, but as the relevant issues to that effect not framed, the issues already framed, recasted as follows:
1. Whether plaintiffs No.1 and 2 having right and title over item No.1 & 2 of the plaint schedule property respectively and thereby they are entitled for the same with consequential permanent injunction restraining defendants from interfering with their possession of item No.1 and 2 of plaint schedule?
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2. Whether plaintiffs are entitled for declaration of Registered Sale Deed, dated 07.12.2010 in the name of 1st defendant as null and void and not binding on them?
3. To what relief?
6.During the course of trial 2nd plaintiff is examined as PW1 and
Exs.A1 to A9 marked on behalf of plaintiffs. On the other hand, 1st defendant is examined as DW1 and two more witnesses examined as DW2 and DW3,
Exs.B1 to B6 marked on behalf of defendants 1 & 5.
7.Heard both sides. Apart from submitting oral arguments both sides filed written submissions also, reiterating the pleadings evidence part and relying on some reported decisions.
8.ISSUE NO.1 AND 2:
The chief evidence of PW1 is reiteration of plaint pleadings in nutshell is that the 1st plaintiff is his paternal aunt and absolute owner of Item No.1 of the plaint schedule property in Sy.No.1069/1B of Kota Kandukuru village of
Allagadda Mandal. Whereas he is absolute owner of Item No.2 of the property to an extent of Ac.1.28 cents in the same survey number. Originally the plaint schedule property and some extent in Sy.No.1069/1B belongs to one
Mulla Moolapalli Hussain Sab @ Zeethre Sab of Kota Kandukuru village. He blessed with three sons viz., Pedda Ghouse Peera Sab, Nadipi Ghouse Peera
Saheb @ Chinna Ghouse Peera Sab and Ghouse Hussain.
On 23.12.1958 said Mulla Moolapalli Hussain Sab sold an extent of
Ac.3-85 cents in Sy.No.1069/1B to his three sons under a Registered Sale
Deed vide Doc.No.2063/1958 and delivered vacant possession. Since from the date of purchase, the said 3 sons of Mulla Moolapalli Hussain Sab have been in possession and enjoyment of the same got divided orally wherein three of
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them were allotted Ac.1.28 cents each. The 1st plaintiff is the wife of the above said Pedda Ghouse Peera Sab and PW1 is the son of Nadipi Ghouse
Peera Sab @ Chinna Ghouse Peera Sab.
PW1 further deposed that the revenue authorities entered the names of sons of Mulla Moolapalli Hussain Sab in the adangal extracts as possessors and enjoyers and issued separate pattadar passbooks in their names to their respective extents. While so, the said Pedda Ghouse Peera Sab died leaving behind him 1st plaintiff, and after his death, 1st plaintiff approached revenue authorities for mutation of her name in the revenue records and after due enquiry the revenue authorities issued pattadar passbook in the name of 1st plaintiff in respect of item No.1 of the plaint schedule property. Further there was an oral division among the family members of Nadipi Ghouse Peera
Sab @ Chinna Ghouse Peera Sab, wherein PW1 secured item No.2 of the plaint schedule towards his share. Revenue authorities also issued pattadar passbooks in his name in respect of item No.2 of the plaint schedule property.
Further, himself and 1st plaintiff jointly enjoying the plaint schedule items 1 and 2 without any obstruction from anybody.
While so, in the year 2010 1st defendant fraudulently got obtained a sale deed, dated 07.12.2010 from the husband of D2 and father of defendants 3 & 4 and also from D5 alleging that she has purchased the land in
Sy.No.1069/1B to an extent of Ac.3-00 cents pyki Ac.3-85 cents though the vendors of defendant No.1 have no right over the said property, since her vendors were having land in Sy.No.1069/1 of Kota Kandukuru village in an extent of Ac.4-50 cents which is away from the plaint schedule property.
PW1 further deposed that one Pedda Hussain Sab who is father of
Pedda Mabu Sab has purchased land in Sy.No.1069/1 from one Linga Reddy,
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S/o Bheem Reddy Subba Reddy of Krishnapuram village on 03.07.1939. But in view of quarrels between family of PW1 and D1 and her husband to harass
PW1 and his family and in that process 1st defendant with the support of her husband obtained Registered Sale Deed, dated 07.12.2010 from the strangers to the plaint schedule property. After obtaining the fraudulent sale deed 1st defendant trying to disturb the peaceful possession and enjoyment over the plaint schedule property by the plaintiffs and trying to grab the same by entering into the land. Further, D1 also trying to take loans from the Bank by producing fabricated and fraudulent deeds. Apart from that she is also trying to obtain pattadar passbook in her name. In the said backdrop, the present suit is filed by the plaintiffs having no other option for declaration of their right and title over the plaint schedule property etc., reliefs.
9.In support of oral contention of PW1, Exs.A1 to A9 marked.
Ex.A1 is original pattadar passbook. Ex.A2 is original Tax receipt for faslis 1392 to 1404. Ex.A3 is the certified copy of Registered Sale Deed, dt.23.12.1958. Ex.A4 is the registration extract of the Sale Deed, dated 07.12.2010. Ex.A5 is registration extract of the sale deed vide document
No.1493/1939. Ex.A6 is land revenue receipt, dated 23.03.2017. Ex.A7 is land revenue receipt, dated 24.04.2018. Ex.A8 is discharge receipt, dated 12.10.2012. Ex.A9 is Rythu passbook.
10.On the other hand, the chief affidavit of DW1 is replica of her written statement and in nutshell is that the plaint schedule land and other land in an extent of Ac.3.85 cents originally belonged to one Bheemreddy
Linga Reddy and he was in possession of the same. From him one Pedda
Hussain Sab purchased the same under a Registered Sale Deed, dated 03.07.1939 and since from the date of his purchase he has been in possession
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and enjoyment of the same till his death. After him his son Pedda Mabu Sab and his brother’s wife who is 5th defendant succeeded the same and are in rightful possession. While so, the said Pedda Mabu Sab who is husband of
D2 and father of D3 & D4 and D5 sold an extent of Ac.3.00 cents including the plaint schedule property to her under a Registered Sale Deed, dated 07.12.2010 delivered the possession on the same date. Since then she has been in possession of the plaint schedule property and she also applied for pattadar passbooks. DW1 further deposed that son of 1st plaintiff by name
Giddesabgari Mulla Abdul filed suit in O.S.No.19/2010 against her husband on the file of Junior Civil Judge’s Court, Allagadda for grant of Permanent
Injunction with regard to the present plaint schedule property contending that plaint schedule property is a Government land and the Government has given the plaint schedule land to him by issuing ‘D’ form patta by virtue of it he was in possession of the same. By suppressing the above facts, plaintiffs filed the present suit without having any manner of right and title over the plaint schedule property.
In support of her case, Exs.B1 to B6 marked. Ex.B1 is the certified copy of Registered Sale Deed, dated 03.07.1939. Ex.B2 is the certified copy of
R.H. Extract. Ex.B3 is the certified copy of Registered Sale Deed, dated 07.12.2010. Ex.B4 is the served copy of plaint in O.S.No.19/2010 on the file of Junior Civil Judge, Allagadda. Ex.B5 is thecertified copy of Decree in
O.S.No.19/2010, dated 26.07.2016 on the file of Junior Civil Judge,
Allagadda. Ex.B6 is the certified copy of Judgment in O.S.No.19/2010, dated 26.07.2016 on the file of Junior Civil Judge, Allagadda.
11.The evidence of DW2 who is husband of DW1 is also on the same lines as that of DW1 in his chief examination. Further, the evidence of DW3 is
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projected to the facts that the plaint schedule property belongs to 1st defendant and she is in possession and enjoyment of the same as originally the same belongs to one Bheemreddy Linga Reddy who sold the same to
Pedda Hussain Sab. After him, his son Pedda Mabu Sab and his brother’s wife succeeded the same who in turn sold the same to D1 in the year 2010.
Since then D1 is in possession and enjoyment of the same by raising crops in an extent of Ac.3-85 cents.
12.Upon perusing the rival contentions it goes to show that the plaintiffs version is that originally the plaint schedule properties and some extent of land in Sy.No.1069/1B belongs to one Mulla Moolapalli Hussain Sab @ Zeethre Sab of Kota Kandukuru village and he sold out Ac.3-85 to his three sons under a Registered Sale Deed, dated 23.12.1958, who in turn in oral division got Ac.1.28 cents each. Likewise the husband of 1st plaintiff and father of 2nd plaintiff got an extent of Ac.1-28 cents each which are item No.1 and 2 of the plaint schedule properties. Further, 1st plaintiff succeeded item
No.1 from her husband whereas 2nd plaintiff got item No.2 during oral partition among his family members.
13.On the other hand, the contention of the defendants 1 & 5 would goes to show that the plaint schedule property originally belongs to one
Bheemreddy Linga Reddy from whom one Pedda Hussain Sab purchased the same under a Registered Sale Deed, dt.03.07.1939 and after him his son
Pedda Hussain Sab and D5 succeeded the same from whom D1 has purchased under a Registered Sale Deed, dt.07.12.2010. Thereby D1 and D5 denied the title of plaintiffs and in turn set up rival claim of their title over plaint schedule property.
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14.Since the plaintiffs filed the suit seeking declaration of their title over plaint schedule it is for them to prove the same irrespective of the claim of the defendants. To prove the contention of the plaintiffs 2nd plaintiff as
PW1 deposed oral evidence and placed Exs.A1 to A9 before the Court. Though plaintiffs contends that originally the plaint schedule property belongs to one
Mulla Moolapalli Hussain Sab @ Zeethre Sab, but except self serving statement of PW1 there is no documentary proof to show the title of the said
Mulla Moolapalli Hussain Sab @ Zeethre Sab filed before the Court. Further there is no pleading in the plaint as to the mode of acquisition of plaint schedule by the said Mulla Moolapalli Hussain Sab. Apart from that during the cross examination of PW1, he admitted that there existed a document of the year 1958 disclosing the right of his paternal grandfather in respect of the schedule property. But the said document is not filed by the plaintiffs before the Court. In view of non filing a document of title disclosing the right and title of Mulla Moolapalli Hussain Sab @ Zeethre Sab though existed which clinch the title of Mulla Moolapalli Hussain Sab @ Zeethre Sab over the property would goes to throw an adverse inference against their version. Even it is also admitted by PW1 during his cross-examination that his grandfather purchased the said property. So it can expect a document of sale in the name of Mulla Moolapalli Hussain Sab. But non-filing of any such document amounts to withholding best piece of evidence which unveils the title over the property, which tends to lead to draw an adverse inference to the version of plaintiffs that the plaint schedule property originally belonged to Mulla
Moolapalli Hussain Sab @ Zeethre Sab and he was having title over it. Non- filing of said documents would goes to show that the version of plaintiffs to claim the title of Mulla Moolapalli Hussain Sab @ Zeethre Sab of the plaint
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schedule property and he purchased the same can’t be accepted, in terms of plaintiffs case. Among Ex.A1 to Ex.A9 there is no document to show the title of Moolapalli Hussain Sab.
15.Moreover, as seen from the recitals of Ex.A3 which is certified copy of Registered Sale Deed, dated 23.12.1958 which is said to be executed by Mulla Moolapalli Hussain Sab @ Zeethre Sab in favour of his sons nowhere he stated the source of title to him over the property. There is no whisper in Ex.A3 as to how Mulla Moolapalli Hussain Sab @ Zeethre Sab has got the property covered under it to alienate the same in favour of his three sons under Ex.A3. It is not recited in Ex.A3 that Mulla Moolapalli Hussain
Sab @ Zeethre Sab has got the property by way of purchase or as ancestral property as stated by PW1 in his cross-examination. So, in the absence of proving the source of title to Mulla Moolapalli Hussain Sab @ Zeethre Sab to convey the same under Ex.A3 to his sons under whom plaintiffs 1 and 2 claiming the title, the very title of Mulla Moolapalli Hussain Sab @ Zeethre
Sab over the plaint schedule property is not able to be substantiated by the plaintiffs. So, in the absence of proof of title of Mulla Moolapalli Hussain
Sab @ Zeethre Sab the very foundation of case of the plaintiffs is shaken since Mulla Moolapalli Hussain Sab @ Zeethre Sab’s title is not able to be proved by the plaintiffs. In the absence of proof of title of Mulapalli Hussain
Sab to convey under Ex.A3 acquiring of title by his three sons under Ex.A3 can’t be accepted. Since in the absence of title over the property Moolapalli
Hussain Sab can’t convey the same to his three sons by executing Ex.A3.
Thereby it can be said that Ex.A3 can’t confer title to the sons of Moolapalli
Hussain Sab, over the plaint schedule property.
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16. Further, the other contention of the plaintiffs that after the death of husband of 1st plaintiff she has succeeded 1st item of plaint schedule property. Admittedly, 1st plaintiff has got three sons. So, succeeding estate of her husband by 1st plaintiff alone leaving behind her three sons namely
Ghouse Mohiddin, Ghouse Hussain and Abdul as admitted by PW1 cannot be accepted. When the husband of 1st plaintiff died intestate leaving behind him his sons, the theory of succession as set up by 1st plaintiff alone has no weight under law. Though a Muslim widow is not excluded from succession but when a widow has children through her deceased husband she is entitled only a share but not the entire estate of deceased husband. So, the mode of acquisition of title over item No.1 as claimed by the 1st plaintiff that she alone succeeded her deceased husband has no legs to stand in the eye of law.
17.Moreover, there is no evidence before the Court that the husband of 1st plaintiff and father of 2nd plaintiff along with their another brother partitioned the properties and in which partition item No.1 fell to the share of husband of 1st plaintiff and item No.2 fell to the share of father of 2nd plaintiff. So, in the absence of proof of factum of partition and allotment of item No.1 & 2 to them, the version of plaintiffs is difficult to believe. On the other hand, there is no proof of evidence placed by the plaintiffs that among the family members of 2nd plaintiff also there was a partition took place wherein item No.2 was allotted to the share of 2nd plaintiff. Though plaintiffs contends that the said partitions are oral, but there are no subsequent events evindencing partition are placed before the Court to believe the factum of partition. When there is a partition of properties by metes and bounds and allotment of shares and when such partition is acted upon, it can expect the evidence of acting upon such partition and allotment of shares. So, the
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factum of partition as pleaded by the plaintiffs among the sons of Moolapalli
Hussain Sab and also among family members of PW1 is not able to be probablised by them, with cogent evidence. Though during the cross- examination of PW1 he admitted that pattadar passbook issued in the name of his father and brothers of his father for an extent of Ac.1.28 cents each but the same is not filed by the plaintiffs which probablise factum of partition by which it can be inferred that plaintiffs withheld the material document which clinches their case thereby an adverse inference can be drawn against their version that the theory of partition of properties covered under Ex.A3 among the sons of Moolapalli Husain Sab and in the said division each got Ac.1.28 cents and that item No.1 allotted to the share of husband of 1st plaintiff and item No.2 of plaint schedule property to the share of father of PW1 as not correct. Even though plaintiffs has placed Ex.A1 which is pattadar passbook which stands in the name of 2nd plaintiff wherein under Sl.No.2,
Sy.No.1069/1B in an extent of Ac.1-28 cents appears, as acquired by way of inheritance and not by way of partition as contended by 2nd plaintiff.
Further, Ex.A2 which is tax receipt, dt.28.03.1995 stands in the name of G.Chinna Ghouse Peera who is father of PW1 wherein Sy.No.1069/B and 1069/C an extent of Ac.3.85 cents and Ac.0.25 cents appearing but not the
Sy.No.1069/1B which is suit survey number. So it is difficult to connect
Ex.A2 to the plaint schedule property. The other documents under Ex.A4 which is certified copy of Registered Sale Deed, dt.07.12.2010 under which D1 said to have purchased the property in Sy.No.1069/1B in an extent of Ac.3.00 cents. Ex.A5 which is the registration extract of registered sale deed, dt.03.07.1939 under which one Pedda Hussain Sab said to have purchased the property from one Bheemreddy Lingareddy. So, Ex.A4 and Ex.A5 are not
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disclosing the title of plaintiffs. Further, Ex.A6 which is cist receipt dated 23.03.2017 stands in the name of 2nd plaintiff wherein Sy.No.1069/1B to an extent of Ac.1.28 cents appearing, whereas Ex.A7 which is also tax receipt,
dated 24.04.2018 stands in the name of 1st plaintiff for an extent of Ac.1.28
cents in Sy.No.1069/1B, but mere filing of Exs.A6 and A7 can’t confer title to plaintiffs over plaint schedule property unless they derives title from the rightful owners for the reason that mere entries in the revenue record will not vest or confer any right and title over the property except they are meant for collecting land revenue.
Moreover, Ex.A8 which is a receipt wherein the recitals goes to show that the Secretary of PACCS issued it stating that the land to an extent of
Ac.1-28 cents in Sy.No.1069/1B along with land to an extent of Ac.1-48 cents in Sy.No.595/2 is mortgaged and obtained loan on 04.12.2001 under Loan
Order No.69/2001 under Registered Mortgage Deed and in connection with the same on the date of Ex.A8 husband of 1st plaintiff along with others paid an amount of Rs.28,000/- to PACCS, for that Secretary issued Ex.A8. But mere issuance of Ex.A8 receipt by the Secretary of PACCS will not create any legal presumption as to the title over the property in favour of persons who repaid the loan under Ex.A8. At any count Ex.A8 can’t be considered as title document, except as a payment receipt. Furthermore, the details of the property mentioned under Ex.A8 are the land to an extent of Ac.1-28 cents in
Sy.No.1069/1B bounded by East:-Krishnapuram Subbareddy Land; West:-
Ambarapu Bala Buchi land; North:-Rastha; South:-Beegala Ramudu land which is not tallying to either item No.1 or item No.2 of the plaint schedule property. So, Ex.A8 cannot be connected to either item No.1 or 2 of plaint schedule property. Even though plaintiffs filed Ex.A9 which is Ryth passbook,
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dated 22.08.1981 wherein the land in an extent of Ac.3-85 cents in
Sy.No.1069/1B stands in the name of one Giddesabgari Ghouse Hussain S/o
Zeethre Sab, which is not stated in the plaint pleadings. Further as per the version of plaintiffs the said Mulla Moolapalli Hussain Sab @ Zeethre Sab said to have sold the land to an extent of Ac.3-85 cents in Sy.No.1061/1B to his three sons under Ex.A3, dated 23.12.1958. So, when already the said Mulla
Moolapalli Hussain Sab @ Zeethre Sab conveyed his title in the property to his three sons in the year 1958 itself under Ex.A3 again reflecting the name of one Giddesabgari Ghouse Hussain, S/o Zeethre Sab in Ex.A9 for the entries
dated 22.08.1981 is against the case of plaintiffs. The entries in Ex.A9 are
against the plaint pleadings on this aspect. Therefore, Exs.A1 to A9 are not helpful to plaintiffs to establish their right and title over the plaint schedule property. When both plaintiffs claiming title over item No.1 & 2 properties separately wherein both items divided with specific boundaries wherein 1st plaintiff claiming her title over item No.1 by way of succession but 1st plaintiff not coming to the witness box to speak about as to how she acquired item No.1 is fatal to the case of plaintiffs. No cogent reasons assigned for 1st plaintiff not entering into the witness box to speak about her title over item
No.1. So, when 1st plaintiff being a party to the suit fails to enter into the witness box to speak her case and offers to be cross examined by the other party, an adverse inference can be drawn that the case set up by 1st plaintiff is not correct.
18.On the other hand, Ex.B3 goes to show that 1st defendant has purchased the property in an extent of Ac.3.00 cents in Sy.No.1069/1B wherein it is recited in Ex.B3 that the father and father-in-law of vendors of
D1 respectively by name Pedda Hussain Saheb got the property by way of
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registered document and from him they have succeeded it. Further, Ex.B1 which is certified copy of Registered Sale Deed, dt.03.07.1939, the said Pedda
Hussain Saheb said to have purchased an extent of Ac.4.50 cents in
Sy.No.1069/1 bounded by East:- Land of vendor; West:- Land of vendor in self same survey number; North:- Rastha; and South:- Land of Annapureddy Eswar
Reddy. However, the property covered under Exs.B1 & B3 are not able to be correlated with items No.1 & 2 of the plaint schedule property since it differs from the plaint schedule in extents, boundaries and survey number. However,
Ex.B2 which is R.H. Extract goes to show that the land in an extent of
Ac.3.85 cents in Sy.No.1069/1B in the name of one Pedda Hussain Sab.
There is difference of survey number since it is mentioned in Ex.B1 as
Sy.No.1069/1 with that of Ex.B3 wherein survey number shown as
Sy.No.1069/1B. Though it is contended by the plaintiffs that the land in
Sy.No.1069/1 is away from the plaint schedule land, but there is no proof filed by them to that effect.
19.Moreover, Ex.B4 which is certified copy of plaint in
O.S.No.19/2010 on the file of Junior Civil Judge, Allagadda, admittedly filed
by the son of 1st plaintiff wherein the schedule in the said suit mentioned as
Ac.2-57 cents in Sy.No.1069/1B, and an extent of Ac.0.17 cents in
Sy.No.1069/02 and the boundaries are tallying with boundaries mentioned for item No.1 of the present suit schedule. Thereby the boundaries for item No.1 of the present suit schedule and the boundaries mentioned for the schedule in
O.S.No.19/2010 are one and the same. So it can be inferred that for item
No.1 of present suit schedule property son of 1st plaintiff filed
O.S.No.19/2010. Further, the plaintiff in O.S.No.19/2010 pleaded that the
plaint schedule property therein belongs to the Government and his
O.S.No.61/2013: 18 :SCJ, Allagadda
grandfather by name G. Hussain Sab @ Zeetar Sab was in possession since more than 50 years and after him plaintiff’s father by name Pedda Ghouse
Peera Saheb was in possession until his death and after his death it is plaintiff in O.S.No.19/2010 is in possession of the same. Further on his application the ‘D’ Form patta issued by MRO, Allagadda for the plaint schedule property to him vide proceedings under R.Dis.No.265/DAR, dated 27.05.2006. So, if the contention of the plaintiff in O.S.No.19/2010 is to be considered, it goes to show that item No.1 of the present plaint schedule is a Government land for which son of 1st plaintiff was issued ‘D’ Form patta which is contrary to the version of plaintiffs herein. Adding to it plaintiffs in the present suit suppressed the fact that 1st plaintiff blessed with three sons to succeed their deceased father and further the filing of O.S.No.19/2010 by one of her sons in order to suppress the facts pleaded in O.S.No.19/2010 which amounts to suppression of material fact. When Ex.B4 is to be considered wherein the nature of item No.1 of the plaint schedule land herein is described as
Government land and ‘D’ form is issued to the son of 1st plaintiff, the very case of the plaintiffs as narrated in the present suit collapses seeking declaration of title of plaintiffs. However, Ex.B5 and Ex.B6 goes to show that the said suit in O.S.No.19/2010 is dismissed.
20.Moreover, there is no evidence before the Court placed by the plaintiffs to prove that the property covered under sale deed of 1st defendant dt.07.12.2010 and the plaint schedule property is one and the same.
Moreover, the property covered under Ex.B3 which is dated 07.12.2010 in the name of 1st defendant is an extent of Ac.3.00 cents in Sy.No.1069/1B bounded by East:- Vendors land in the same survey number; West:- Land of Golla
Rama Krishna; North:- Public Road; South:- Land of Beegala Narasimhudu and
O.S.No.61/2013: 19 :SCJ, Allagadda
others, whereas plaint schedule item No.1 & 2 an extent of Ac.1.28 cents each in Sy.No.1069/1B with different boundaries. Thereby the property covered under Ex.B3 and plaint schedule are not correlating with each other. Hence in the absence of proof that property covered under sale deed of 1st defendant
dated 07.12.2010 and the plaint schedule property is one and the same,
plaintiffs can’t sought for declaration of sale deed, dt.07.12.2010 as null and void. Further, in the absence of seeking relief of declaration of title over the property covered under sale deed, dt.07.12.2010 and when plaintiffs seeking their title to be declared for plaint schedule property which is not able to be proved as the property covered under Ex.A3, plaintiffs can’t sought for declaration of sale deed of 1st defendant dt.07.12.2010. Irrespective of proof of Exs.B1 & B3 by the defendants No.1 & 5, plaintiffs have to prove their case basing on their own evidence and they cannot depend upon the latches or weakness on the part of evidence of the defendants for the reason that it is the plaintiffs who approached the Court seeking the relief of declaration of their right and title but not the defendants. Even during the cross- examination of DW1 to DW3 also nothing material evidence is elicited to prove that plaintiffs are having title over the plaint schedule property, except suggesting to that effect which DW1 to DW3 denied it.
21.The declaratory relief under Sec.34 of Specific Relief Act, 1963 is in the nature of equitable relief for granting of an already existing right which has been deemed by the other party. So, the plaintiff who seeks remedy must have a right to the plaint schedule property. In order to prove the right and title over plaint schedule property, plaintiffs needs to independently prove as to the source from which they acquired the title and the way they were conferred with title. It is the plaintiffs who have to stand
O.S.No.61/2013: 20 :SCJ, Allagadda
on their own legs in a suit for claiming title inspite of the inability of the other side to discredit plaintiffs contention. After analysis of evidence before the court it goes to show that plaintiffs are not able to prove their case as per their plaint pleadings.
22.During the course of arguments the learned counsel for the plaintiffs relied upon the following reported decisions.
(a)M.B. Ramesh (D) by LRs Vs. K.M. Veeraje (D) by LRs and other 2013(5)
ALT 40 (SC), wherein the Hon’ble Apex Court held that:
“Construction of a document of title or an instrument being foundational to rights of parties, necessarily raises a question of law”,
But the above proposition of law in the above reported decision cannot be made applicable to the present suit on hand for the reason that there is no issue involved in the suit with regard to construction of document of title of the parties.
(b)Magbul Shaik (Died) and others Vs. Cheerala Thripura and others 2015 (5) ALT 627, for the proposition that:
“When vendor has no title to the property, purchaser of the property from him cannot get better title”,
When the above ratio relied by the plaintiffs counsel made applicable to the present suit on hand it goes against to the case of plaintiffs since said
Mulla Moolapalli Hussain Sab @ Zeethre Sab’s title has not established to convey the same to his sons under Ex.A3, and in turn his two sons to the plaintiffs who are claiming title under them.
(c)Nagamma and others Vs. G.Kamalamma and others 2008(1) ALT 281 (D.B.), wherein it is held that:
O.S.No.61/2013: 21 :SCJ, Allagadda
“In a suit for declaration of title, the plaintiff must succeed on the strength of his own title. Initial onus always on the plaintiff, if he discharges that onus, then it shifts to defendant to prove the circumstances which would dis-entitle plaintiff to the relief claimed. Question of burden of proof not of very great importance when both parties adduce their evidence. Court has to come to a decision on consideration of all materials.”
The ratio in the above reported decision if applied to the present suit on hand, it is for the plaintiffs to prove their case on their own and initial onus always on them only. Thereby the same cannot be shifted to the defendants. Since plaintiffs are not able to discharge their initial onus of proof of title, the same cannot be shifted to the defendants. Hence, the ratio in the reported decision is favour to the version of defendants No.1 & 5 than the plaintiffs.
(d)Atluri Kuchela Rao Vs. District Collector, Hyderabad and another 2012(3) ALT 621, wherein it was held that:
“In a suit for declaration of title, if the plaintiff establishes certain broad aspects and tenets of title and the defendant is not able to establish any superior title, a decree for declaration of title must follow”.
But in the present suit on hand, as the plaintiffs are not able to establish the foundation of their case and tenets of title, thereby the above reported decision is not helpful to the plaintiffs.
(e)Tirumala Tirupati Devasthanam Vs. K.M. Krishnaiah (1998) 3 SCC 331, wherein the Hon’ble Apex Court was held that:
“Judgment not inter parties admissible in evidence under
Section 13 of Evidence Act as evidence of assertion of a right to property in dispute, judgment rendered in an earlier
O.S.No.61/2013: 22 :SCJ, Allagadda
suit declaring title of the present appellant in a land held admissible and could be relied upon by the appellant in the subsequent suit filed by the respondent for grant of permanent injunction against the appellant in respect of same land, even though respondent was not a party to earlier suit.”
But to rely on the above ratio to the present suit facts there is no earlier judgment in favour of plaintiffs declaring their title over the property.
Hence the above decision will not come to the aid of plaintiffs.
(f)Mohd. Ibrahim Vs. Secretary to the Government of India, Ministry of
Defence, New Delhi and Ors., 1996(1) APLJ 470 (HC), wherein it was held that:
“In a suit for possession based on title, the title of plaintiff established. The plaintiffs claim cannot be defeated unless the defendants take a specific plea of adverse possession”.
In the present suit on hand which is in comprehensive nature for declaration of title of the plaintiffs but not suit for possession simplicitor.
Further defendants No.1 & 5 also not taken the plea of adverse possession on the other they set up rival claim of title. So the ratio in the above reported decision cannot be made applicable to the present suit on hand.
On the other hand, the counsel for defendants No.1 & 5 relied upon the following reported decisions.
(a)P.John Nelson Vs. V.Benjamin 2016(6) ALT 17.
(b)Union of India Vs. Vasavi Co-op. Housing Society Ltd., & others AIR 2014 (SC) 937.
(c)Uppara Anjinappa (Died) and others Vs. T.Khasim Sab (died) per LR and others 2018 (5) ALT 511.
For the proposition of law that in a suit for declaration of title the burden was heavy on the plaintiff to establish that he has title to the property
O.S.No.61/2013: 23 :SCJ, Allagadda
with cogent and satisfactory evidence, and he can’t claim relief on the weakness of defendant’s case.
The above reported decision squarely falls on the present suit on hand, and as the plaintiffs failed to prove their title over the plaint schedule property and having not able to discharge the burden rests upon them, they are not entitled to seek the relief of declaration of their title.
23.Therefore, viewed in any angle, plaintiffs 1 & 2 are not able to prove their right and title over the plaint schedule item Nos.1 & 2 respectively and for consequential relief of permanent injunction against defendants, and also the relief of declaration that the Registered Sale Deed,
dated 07.12.2010 in favour of 1st defendant as null and void and not binding
on them. Thereby plaintiffs are not entitled for the reliefs as prayed for.
Accordingly, issues No.1 & 2 answered.
24. In the result, the suit is dismissed without costs.
Dictated to the Stenographer Gr-II, transcribed by her, corrected and
pronounced by me in the open Court, this the 10th day of August, 2023.
SENIOR CIVIL JUDGE,
ALLAGADDA.
APPENDIX OF EVIDENCE
Witnesses Examined
For Plaintiffs:-
PW1: Giddesabugari Pedda Mohammad Ghouse
For Defendants:-
D.W.1: Rameeza Bi D.W.2: Mohaboob Basha D.W.3: Mohammed Ghouse
O.S.No.61/2013: 24 :SCJ, Allagadda
EXHIBITS MARKED
For Plaintiffs:- Ex.A1: Pattadar Passbook Ex.A2: Tax receipt for faslis 1392 to 1404. Ex.A3: Certified copy of Registered Sale Deed, dt.23.12.1958. Ex.A4: Registration Extract of Sale Deed, dated 07.12.2010. Ex.A5: Registration Extract of Sale Deed, dt.03.07.1939. Ex.A6: Land Revenue receipt, dated 23.03.2017 Ex.A7: Land Revenue receipt, dated 24.04.2018 Ex.A8: Discharge receipt, dated 12.10.2012. Ex.A9: Rythu passbook.
For Defendants:-
Ex.B1:Certified copy of Registered Sale Deed, dated 03.07.1939. Ex.B2: Certified copy of R.H. Extract relating to Sy.No.1069/1B. Ex.B3:Certified copy of Sale Deed, dated 07.12.2010. Ex.B4:Served copy of plaint in O.S.No.19/2010 on the file of JCJ, Allagadda. Ex.B5:Certified copy of Decree in O.S.No.19/2010, dated 26.07.2016 passed by the Junior Civil Judge, Allagadda. Ex.B6:Certified copy of Judgment in O.S.No.19/2010, dated 26.07.2016 passed by the Junior Civil Judge, Allagadda.
SCJ, ALG.
O.S.No.61/2013: 2 :SCJ, Allagadda
IN THE COURT OF THE SENIOR CIVIL JUDGE, ALLAGADDA.
PRESENT: Smt. S. Sujatha,
Senior Civil Judge, Allagadda.
Thursday, the 10th Day of August, 2023.
O.S.No.61/2013
1. Giddesabugari Khaja Bi, W/o Late Pedda Ghouse Peera Sab, aged about 70 years, Muslim, Agriculturist, R/o Kota Kandukuru Village, Allagadda Mandal, Kurnool District.
2. Giddesabugari Pedda Md. Ghouse, S/o Nadipi Ghouse Peera Sab @ Chinna Ghouse Peera, aged about 48 years, Muslim, Agriculturist, R/o Kota Kandukuru Village, Allagadda Mandal, Kurnool District. …. Plaintiffs
Versus
1. Rameeza Bi, W/o Mahaboob Basha, aged 35 years, Muslim, House wife, R/o Kota Kandukuru Village, Allagadda Mandal, Kurnool District.
2. Mahaboob Bi, W/o Late Pedda Maboosa, Muslim, aged about 70 years, Agricultural coolie, R/o Pedda Bazar, Kota Kandukuru Village, Allagadda Mandal, Kurnool District.
3. Jailan Bi, W/o Late Abdul Rahaman, aged 50 years, Muslim, Agricultural Coolie,
4. Hussain Bi, W/o Chinna Mabu, aged 40 years, Muslim, Agricultural Coolie, The defendants 4 & 5 are residing in the house of the defendant No.3.
5. Giddesabugari Chinna Bibi @ Beelu, W/o Nadipi Mabu Sab, aged 60 years, Muslim, Agricultural Coolie, R/o Kota Kandukuru village, Allagadda Mandal, Kurnool District. * Amended as per orders in I.A.No.27/2019, dt.08.01.2020. … Defendants
The Plaintiffs filed the suit under Order VII Rules 1 and Sec.26 of Code of Civil Procedure against the defendants for declaration of their right and title over the Plaint Schedule Properties, and also for declaration of Sale Deed dated 07.12.2010 as null and void and not binding on the plaintiffs, etc., reliefs.
Plaint presented on 23.05.2013 and filed on 30.05.2013. J.V. of Rs.1,28,000/- (Rs.64,000/- & Rs.64,000/-) for declaration, and Court fee of Rs.5,412/- is paid U/Sec.24 (b), and for cancellation of Sale Deed dt.07.12.2010, suit is valued at Rs.1,80,000/- and C.F. of Rs.4,226/- is paid U/Sec.37 of A.P.C.F. and S.V. Act, 1956
The Cause of action for the suit arose on 07.12.2010 on the date when D1 tried to disturb the peaceful possession and enjoyment of the plaintiffs over plaint schedule land and when D1 created and fabricated Sale Deed in her name from the persons who are not having any title and enjoyment, and the plaint schedule property situated at Kota Kandukuru village, Allagadda Mandal, which is within the Jurisdiction of this Court.
This suit is coming up for final hearing before me on 11.07.2023 in the presence of Sri S.Md. Haneef and Sri Shaik Mahammed Rafi, Sri
O.S.No.61/2013: 2 :SCJ, Allagadda
P.S.Mahaboob Basha, Advocates for the Plaintiffs and of Sri B.Neelakanteswaram and Sri E. Mallikarjuna Reddy, Advocates for the Defendants No.1 & 5, and the Defendants 2 to 4 remained exparte, upon hearing both sides, having perused the material on record and the matter having stood over for consideration till this day, this court doth order and passed the decretal order as follows;-
1) that the suit be and the same is hereby dismissed;
2) that there shall be no costs.
Given under my hand and seal of the court, this the 10th day of August, 2023.
SENIOR CIVIL JUDGE,
ALLAGADDA.
Table of Costs For PlaintiffFor Defendant Stamp on plaint 9,638-00-- Stamp on vakalath2-002-00 Stamp on process233-00-- Senior Advocate FeeNil (not certified)12,800-00 Junior Advocate Fee --4,267-00 Typing Charges --100-00 Writing Charges --100-00 Total9,873-0017,269-00
SCJ, ALG.
SCHEDULE
Item No.1
The land in Sy.No.1069/1B to an extent of Ac.1.28 cents, out of Ac.3.85 cents situated within the limits of the Kota Kandukuru village, Allagadda Mandal, Kurnool District, Sub-Registration District, Allagadda and Registration District Kurnool, bounded as follows:
East: Land of Pedda Md. Gouse; West: Land of Sivudu; North: Road; South: Lands of B.Narasimhudu and Eeswar Reddy.
Item No.2 The land in Sy.No.1069/1B to an extent of Ac.1.28 cents, out of Ac.3.85 cents situated within the limits of the Kota Kandukuru village, Allagadda Mandal, Kurnool District, Sub-Registration District, Allagadda and Registration District Kurnool, bounded as follows:
East: Land of Gouse Hussain; West: Land of Pedda Gouse Peera; North: Road; South: Lands of B.Narasimhudu and Eeswar Reddy.
S.C.J, ALG.