1
IN THE COURT OF SENIOR CIVIL JUDGE :: ADDANKI ::
PRESENT : SMT S. SUJATHA,
SENIOR CIVIL JUDGE, ADDANKI.
Tuesday, this the 24th day of March, 2020.
Original Suit No. 46 of 2012
Between:
Minnekanti Jayasri, D/o. Dhulipalla Ramachandraiah, Adopted D/o. Minnekanti Satyanarayana, aged 44 years, Hindu, House Wife, R/o. Rajendra Nagar, 3rd Line, D.No.3-1-69, Guntur.… Plaintiff.
Vs.,
1. Dhulipalla Ramachandraiah ( Died)
2. Kalahasthi Vasudeva Murthy s/o. Pitchaiah, aged 56 years, Hindu, Cultivation, r/o. Dwarakapadu Village, H/o.Valaparla of Martur Mandal.
3. Kalahasthi Audilaxmi, W/o. Vasudeva Murthy, aged 54 years, Hindu, House Wife, R/o. Dwrakapadu Village, H/o.Valaparla of Martur Mandal.
4. Janjanam Anjaneyulu @ Devudibhaktha Anjaneyulu, S/o. Anjaneyulu @ Gopala Rao, aged 65 years, Hindu, Business,
5. Goli Syamalamba, W/o. Subbarayudu, aged 65 years, Hindu, House Wife,
6. Goli Nageswara Rao, S/o. Subbarayudu, aged 50 years, Hindu, Business,
7. Shaik Baji, S/o. Masthan, aged 40 years, Muslim,
8. Janjanam Gopala Rao, S/o. Gurubhakta Anjaneyulu, Aged 45 years, Hindu, Cultivation,
Defendants 4 to 8 are R/o.Valaparla of Martur Mandal.
(D.8 is added as per orders in I.A.No.271/2014
Dt: 02.02.2018) … Defendants
This suit is coming on 12.03.2019 before me for final hearing in the presence of Sri V. Subrahmanyam, Learned Advocate for Plaintiff and of Sri V.
Anji Reddy, Learned Advocate for defendant No. 2 & 3; and defendants 4 to 7 remained exparte; and of Sri A. Rama Swamy, Learned Advocate for defendant
No.8; and defendant No.1 died; and upon perusing the oral and documentary 2 evidence on record and hearing the arguments on both sides, and having stood over for consideration till this day, this Court delivered the following :- // J U D G M E N T \\
01. The suit is filed for declaration of plaintiff right over the plaint schedule property with a consequential relief of possession, evicting the defendants 2 to 8 there from and deliver the possession of the suit schedule property to the plaintiff and for costs of the suit.
02. The averments of the Plaint, in nutshell, are as follows:
1st defendant is the natural father of plaintiff. 1st defendant married one Venkata Subbamma, d/o. Kalahasthi Venkata Subbaiah, S/o. Pitchaiah and through her, he begot four daughters and a son by name Punna Rao. The daughters are Challagundla Nagaratnam, w/o. Venkateswarlu, Kalahasthi Audilaxmi i.e. 3rd defendant, plaintiff and Valeti Prabhavathi. After given birth to all the children, plaintiff’s natural mother Venkata Subbamma died on 28.11.1968. While plaintiff was 11 months old she was taken to the house of one Minnekanti
Satyanarayana, who began treating her as his faster daughter. After the death of
Venkata Subbamma, the plaintiff was taken in adoption by Satyanarayana and his wife and ever since she was going by the name as Minnekanti Jayasri, D/o.
Satyanarayana. She was also got married to one Pentyala Yellamanda Babu Rao.
Unfortunately, her marriage tie with her husband failed and she is living under the parents’ protection of her adopted father. Kalahasthi Venkata Subbaiah, the maternal grandfather of the plaintiff had a son by name Pitchaiah, who is no other than the father of 2nd defendant, who married 3rd defendant the natural sister of plaintiff. Kalahasthi Venkata Subbaiah was having extensive properties. On account of family problems, Venkata Subbaiah and his son Pitchaiah partitioned all the joint family properties and a written partition deed was executed on 16.12.1957 which is registered document No.1934/1957. The partition deed covers 3 ‘A’ and ‘B’ schedules, while ‘A’ schedule property was allotted to the share of
Kalahasthi Venkata Subbaiah, ‘B’ schedule property was allotted to the share of
Pitchaiah. The property shown in the plaint schedule is allotted to the share of
Venkata Subbaiah. Ever since the partition, Venkata Subbaiah began living with the family of 1st defendant, while Pitchaiah lived with family of defendants 2 and 3 and his other children. He died later. Thus, 2nd defendant got substantial properties of his father, 2nd defendant took to business activities, lost most of his properties on account of loss sustained by him. Since the mother of plaintiff died even before the marriages of her children 1st defendant began living at Ongole and performed the marriages of all the children. Plaintiff’s brother Punnaiah while he had undergo major operation of his lung at Vellore. On account he became a sick person without maturity of mind though he is a post graduate. In those circumstances as the 1st defendant lost his wife after giving birth to the five children, Kalahathi Venkata Subbaiah, the maternal grandfather of the plaintiff intended to make arrangements regarding his properties. Then he executed a registered Will on 20.05.1970 in a sound and disposing state of mind and later died. Making reference to the earlier partition between himself and his son ( plaintiff’s maternal uncle) of the property he possessed by then, he bequeathed
Ac.2.68 cents of land in S.No.48, and Ac.1.12 ½ cents of land in S.No.51 and 52 of Valaparla Village to the 1st defendant to be enjoyed by him with absolute rights.
He made such bequeaths to the plaintiff, her elders sisters Nagarathamma, 3rd defendant, and plaintiff’s younger sister Prabhavathi. Such bequest was also made to Punnaiah, the brother of plaintiff. Later Kalahasthi Venkata Subbaiah died and the said Registered Will, which was registered as document No.25/1970 came into force. By the time of execution of the said Will, plaintiff, her sisters and brother were all minors except the elder sister Nagarathamma. It is for that reason he appointed the 1st defendant as Guardian for all the minor’s properties in the said 4 Will. By the year 1983, plaintiff and her sisters except her youngest sister were married. Later 1st defendant came down to Addanki and shifted his practice.
Punnaiah was also married and living at Vallapalli with the assistance of 1st defendant began looking after the cultivation of lands. 1st defendant was alone in management of the joint family properties possessed by him and Punnaiah in addition to the properties which he got under the said Will executed by Kalahasthi
Venkata Subbaiah and some other property. After plaintiff and her sisters attained majority, all of them took possession of properties bequeathed to each of them by late Venkata Subbaiah under the said Will. Likewise Punnaiah, Plaintiff, her sisters, brother and 1st defendant began dealing with their properties in their own right. 1st defendant sought for partition of his share in the joint family properties possessed by them left over after making gifts of properties to three daughters towards pasupu kumkuma excluding the 3rd defendant, since substantial dowry was given to 2nd defendant, not satisfied the same, 2nd defendant got filed a suit in
O.S.No.57/2011 seeking partition of properties on the file of Additional District
Judge’s Court, Ongole through 3rd defendant. In the said suit plaintiff was
impeladed as 4th defendant while her other sisters were impleaded as defendants 3 and 5 along with some third parties. 1st defendant had heart problems in addition to being a diabetic patient. He underwent major operation at Hyderabad. 1st defendant became heavily indebted. The creditors of 1st defendant began pressing for discharge of their loans. The 1st defendant sell some of his properties which is not the subject matter of suit in O.S.No.57/2011. He offered to sell a portion of property covered by S.Nos.48/3 and 48/5 of Valaparla Village to an extent of
Ac.1.61 cents. Plaintiff came to know the same she went to the 1st defendant and agreed to purchase the said property. The bargain was settled at Rs.1,94,000/-.
Plaintiff paid the entire sale consideration to the 1st defendant, for which he executed a registered sale deed on 05.09.2011 in favour of plaintiff and delivered possession of the property to the plaintiff with absolute rights. During the 5 cultivation year 2011-2012, plaintiff got the suit land ploughed and raised maize crop in the land which is also ripe. 2nd defendant took the support of defendants 4 to 7, who are his close associates and caused obstruction to the coolies engaged by the plaintiff. Plaintiff came to know the fact and went to defendants 4 to 7 and questioned them about their conduct, there was no proper reply from them.
Plaintiff further submits that 1st defendant is the absolute owner of the suit schedule property which was bequeathed to him by late Kalahasthi Venkata
Subbaiah, the maternal grandfather of the plaintiff by virtue of a Registered Will
dt: 20.05.1970 and it is his separate property in which his son Punnaiah or any
other daughter have no right. The property got by 2nd defendant’s father is different and 2nd defendant has no right in any portion of the suit property. Thus, none of the defendants 2 to 7 can meddle with right of the plaintiff in enjoying the suit schedule property. The suit property is not a portion of the property covered by the suit in O.S.No.57/2011. In the said circumstances plaintiff was advised to seek for declaration of her title to the suit schedule property with a consequential relief of permanent injunction. The plaintiff is not in possession of the plaint schedule property either on the date of suit or earlier, she is praying alternative relief, for declaration of her title to the suit schedule property and for recovery of possession of the same after evicting such of those defendants as are found to be in possession of the suit property either alone or jointly in which case she will be entitled for profits. Hence, the suit. Though plaintiff is not seeking any relief against 1st defendant he is impleaded as pro-forma defendant since plaintiff acquired title to the suit property under sale deed executed by him. 2nd defendant had created a nominal and sham document styled as sale deed dt:
01.09.1999 in the name of 8th defendant in respect of Ac.1.50 cents i.e. the suit schedule property. This fact was brought to the notice of the plaintiff after filing of the suit. In the said circumstances 8th defendant is added and seek the relief of 6 recovery of possession of the suit schedule property from him along with other defendants.
03. On the other hand 2nd defendant filed written statement which was adopted by defendant No.3 admitting the relationship as mentioned in the plaint, denying the averments in the plaint and further stating that 1st defendant has no manner of right and title over the suit schedule property sell to the plaintiff under a registered sale deed as document No.4948/2011 on 05.09.2011 and the said document is not valid in the eye of law. Subsequent to the Will dt: 20.05.1970 the said Kalahasthi Venkata Subbaiah executed another Will dt: 01.06.1970 in favour of his wife Hanumayamma with regard to the suit schedule property and other properties in which he got absolute right. The said Venkata Subbaiah cancelled the Will dt: 20.05.1970 and executed an unregistered Will in favour of
Hanumayamma, Nagarathnam and to the children of Pitchaiah. The said Venkata
Subbaiah died on 06.06.1970. After death of Venkata Subbaiah, Hanumayamma,
Nagarathnam and the children of Pitchaiah became absolute owners of their respective properties and enjoying the properties under the Will dt: 01.06.1970. In the land ceiling the suit schedule property was shown in the name of
Hanumayamma in C.C.No.1713/ADK/75 and it is considered by the Spl. Deputy
Tahsildar, Land Reforms, Addanki. In that declaration Hanumayamma shown the present suit schedule in her name before the concerned authorities. 1st defendant has no properties in Valaparla revenue village, he is a stranger to the suit schedule property and he cannot sell the suit property. More over towards the western side of the suit schedule property the land of one K. Hari Babu is in existing, but in the schedule the plaintiff shown on the western side as defendant No.1 remaining land, which is a suppression of fact. On 04.04.1987 the said Kalahasthi
Hanumayamma executed a Will in favour of 2nd defendant in which she got absolute right in the plaint schedule property to an extent of Ac.1.65 cents of 7 Valaparla Village. The said Hanumayamma died on 04.06.1987 and since then 2nd defendant had been in possession and enjoyment of the suit schedule property and later on 01.09.1999 2nd defendant sold the land in S.No.48/1 and S.No.53/4 an extent of Ac.1.50 cents of Valaparla Village to one Janjanam Gopala Rao under registered sale deed for a considerable amount. Later the name of Gopala Rao was mutated in Revenue records and he got pattadar passbooks and title deed and he has been in possession and enjoyment of the said land. The said Gopala Rao is the son of defendant No.4. 1st defendant is well known about the subsequent Will
dt: 01.06.1970 which was executed K.Venkata Subbaiah in favour of
Hanumayamma and other and the said unregistered Will is with the 1st defendant.
2nd defendant has no necessity to file suit O.S.No.57/2011 in District Court, Ongole through defendant No.3 for partition of joint family properties of defendant No.1.
In the said suit 1st defendant in his written statement stated he has given Ac.4.00 cents of land to his two daughters i.e. plaintiff and Prabhavathi as Pasupu- kumkuma. The 1st defendant induced and threatened 3rd defendant and obtained signatures at Registrar Office. But it was happened without knowledge of 2nd defendant. The plaintiff was never given or taken adoption by M. Satyanarayana.
The plaintiff marriage was also performed by the 1st defendant and with a view to avoid to give a share in the joint family properties to the 3rd defendant, the 1st defendant got filed this suit through the plaintiff to give trouble to the defendants 2 and 3. The son of 1st defendant is hale and healthy and he studied post graduation. 1st defendant has been enjoying the entire joint family properties which were vested to him and managing the properties. He got good income. So the question of borrowing cash from others or indebted amounts to others does not arise. The 1st defendant constructed a new two storied building and living in that house. The 1st defendant by creating a nominal, sham and invalid documents and got filed this suit. The purchaser Janjanam Gopala Rao have been in possession 8 and enjoyment of the plaint schedule property by raising crops from time to time.
Hence, prays to dismiss the suit with costs.
On the other hand 1st defendant filed written statement admitting the relationship as mentioned in the plaint and further admitted that while plaintiff was 11 months old she was taken by Minnekanti Satyannarayana and his wife
Anjamma to their house and they adopted the plaintiff as their adopted daughter and all formalities prevalent among Hindus in Hindu Law were performed for this adoption. Since then plaintiff was going by the name as Minnekanti Jayasri, D/o.
Satyanarayana. The plaintiff’s marriage was in fact performed by late Anjamma with her monies who is adoptive mother of plaintiff. Denying the allegations in the written statement filed by the 2nd and 3rd defendants, further submits that said
Hanumayamma never executed any Will either on 04.04.1987 or any other date as alleged by 2nd defendant and it is a forged Will brought into existence. It is also not correct to state that Hanumayamma died on 04.06.1987. The 2nd defendant had no right to sell the plaint schedule property to one Janjanam Gopala Rao under registered sale deed dt: 01.09.1999 and it is not valid sale deed. Said Gopala Rao got no right under an invalid sale deed. It is absolutely in correct to state that the unregistered Will dt: 01.06.1970 is with 1st defendant. The 2nd defendant is a main mentor in filing O.S.No.57/2011 on the file of District Court, Ongole. Hence prays to dismiss the suit with costs.
On the other hand 8th defendant filed written statement stating that he is a stranger to the plaintiff’s family. After verifying the Will dt: 04.04.1987 executed by Hanumayamma in favour of 2nd defendant and the pattadar passbook and title deed and other Revenue Records he purchased Ac.1.50 cents in S.No.48/1 of
Valaparla Village for valuable consideration of Rs.45,000/- under a Registered Sale deed dt: 01.09.1999 and obtained physical possession of the property. Since then he is in possession and enjoyment of the said property. The plaintiff has got knowledge about the said sale deed. The relief claimed by the plaintiff against 8th 9 defendant for declaration and possession is barred by time. He is a bonafide purchaser for value. The plaintiff is not entitled to any reliefs against him. Hence prays to dismiss the suit with costs.
04. Basing on the above pleadings as there is no element of settlement this
Court framed the following issues for the purpose of trial :-
1. Whether the plaintiff is entitled to declare the right over the plaint schedule property with consequential relief of possession?
2. Whether the plaintiff is entitled to evict the defendants 2 to 8 from the plaint schedule and delivery of possession?
3. Whether the plaintiff is entitled for mesne profits?
4. To what relief ?
Since defendant No.8 claims in his written statement that the suit is barred by limitation and he is a bonafide purchaser but no issues framed to that effect, the following additional issues framed. Further issue No.3 is struck off as not necessary.
1. Whether the suit is barred by limitation?
2. Whether defendant No.8 is bonafide purchaser?
05. To substantiate the case of the plaintiff, she is examined as PW.1 and got marked Ex.A.1 to Ex.A.4. Plaintiff further got examined one Immaneni Rama
Chandra Rao as PW.2 on her behalf. On the other hand defendant No.2 and 3 are examined as DW.1 and DW.2. Ex.B.1 to Ex.17 marked through DW.1. Further defendant No.2 got examined DW.3, who is an independent witness, DW.4, who is said to be identifying witness of Ex.B.3, and also DW.5, who is Revenue Divisional
Officer and got marked Ex.B.18 and Ex.B.19. Further defendant NO.8 is examined 10 as DW.6 got marked Ex.B.20 to Ex.B.32 and DW.7 and DW.8, who are third parties examined on behalf of defendant No.8.
06.Heard the arguments.
07.Issue Nos.1 & 2:
The evidence of PW.1 in nut shell is that her maternal grandfather by name Kalahasthi Venkata Subbaiah and his son Pitchaiah partitioned all their joint family properties under a registered partition deed dt: 16.12.1957 the certified copy of which marked as Ex.A.1. As per the said partition deed ‘A’ schedule property was allotted to the said Kalahasthi Venkata Subbaiah and ‘B’ schedule property was allotted to the share of Pitchaiah. The plaint schedule properties forms part of the property allotted to the share of Venkata Subbaiah. Ever since the said partition both of them have been in possession and enjoyment of their respective properties. While so, the said Venkata Subbaiah has executed a
Registered Will dt: 20.05.1970 which is exhibited as Ex.A.2 in a sound and disposing state of mind, referring the earlier partition under Ex.A.1 to 1st defendant to be enjoyed by him with absolute rights in respect of plaint schedule properties and some other properties and also bequeathing some other properties to the plaintiff, her elder sisters Nagarathamma and defendant No.3 and another sister
Prabhavathi and brother Punnaiah. Later the said Kalahasthi Venkata Subbaiah died and Ex.A.2 came into force and defendant No.1 was under the management of joint family properties possessed by him and Punnaiah in addition to the properties which he has got under Ex.A.2. While so, 1st defendant to discharge his loans when intends to sell the plaint schedule property, plaintiff approached him and asked him to sell the property to her, for which defendant No.1 agreed, accordingly she has purchased the plaint schedule properties for consideration of
Rs.1.94,000/- paid to defendant No.1 under a registered sale deed dt: 05.09.2011 which is Ex.A.4. The same was not liked by defendant No.2, since plaintiff was 11 not supporting defendant No.3 in O.S.No.57/2011 filed by defendant No.3 against defendant No.1, plaintiff and others for partition of the plaint schedule properties on the file of Additional District Judge’s Court, Ongole. However the plaint schedule property is not the subject matter of the said suit. Further when plaintiff went to cultivate the land she was not allowed by defendant No.4 to 7, who are his close associates and caused obstructions to the coolies engaged by the plaintiff to work in the plaint schedule property which constrained her to file the present suit for declaration of her right and title over the plaint schedule property and for consequential relief of permanent injunction alternatively for recovery of possession.
08.On the other hand it is the evidence of defendants 2 and 3 as DW.1 and DW.2 that they have admitted the relationship as set out by the plaintiff in the plaint and further admitting the execution of Ex.A.2 by Kalahasthi Venkata
Subbaiah in favour of defendant No.1 as contended by the plaintiff in respect of the properties including the plaint schedule properties. However defendants 2 and 3 contending that the said Kalahasthi Venkata Subbaiah during his life time cancelled Ex.A.2 and again executed unregistered Will dt: 01.06.1970 in favour of his wife Kalahasthi Hanumayamma and some others. In turn the said Kalahasthi
Hanumayamma executed a registered Will dt: 04.04.1987 which is Ex.B.3 in favour of defendant No.2 bequeathing amongst other properties the plaint schedule property in an extent of Ac.1.65 cents and she died on 04.06.1987. On her death defendant No.2 became absolute owner of the plaint schedule land came into possession of the same. Further being the absolute owner defendant No.2 sold the plaint schedule land to defendant No.8 for valuable consideration under a registered sale deed dt: 01.09.1999 and delivered possession to defendant No.8, since then defendant No.8 is in possession and enjoyment with absolute rights and the name of defendant No.8 is also mutated in the revenue records.
12
09.The evidence of defendant No.8, who is examined as DW.6 is also similar to that of DW.1 who also deposed that he has purchased the plaint schedule property from defendant No.2 under registered sale deed dt: 01.09.1999 which is Ex.B.17 and since then he has been in possession and enjoyment of the same and his name is also mutated in the revenue records. To support his case he filed Certified copy of Adangal through me-seva for the fasli 1427 in S.No.48/3,
Certified copy of Adangal through me-seva for the fasli 1429 in S.No.48/5, Land
Revenue Receipt for Fasli 1409, Land Revenue Receipt for Fasli 1410, Land
Revenue Receipt for Fasli 1411, 1414 to 1416, Land Revenue Receipt for Fasli 1417 to 1421, Land Revenue Receipt for Fasli 1422 to 1424 as Ex.B.20 to Ex.B.26 respectively.
10.So the contentions of both parties as can be seen from the evidence goes to show that plaintiff based her case on Ex.A.2 executed by Kalahasthi
Venkata Subbaiah in favour of defendant No.1 which is not denied by defendants 2 and 3. It is also not disputed by defendants 2, 3 and 8 that the plaint schedule property covered under Ex.A.1 which was allotted to the share of Kalahasthi
Venkata Subbaiah. So, it goes to show that originally the plaint schedule property belongs to Kalahasthi Venkata Subbaiah which he got under Ex.A.1 and subsequently he has executed Ex.A.2 in favour of defendant No.1 is not disputed by defendants 2, 3 and 8. Further more identity of the plaint schedule as contended by the plaintiff is not disputed by defendants 2, 3 and 8, except western boundary since they denied that the western boundary is not the remaining land of defendant No.1, but it is the land of one Hari Babu. So it is clear that the title of the plaint schedule property by Kalahasthi Venkata Subbaiah under Ex.A.1 and his execution of Ex.A.2 in favour of defendant No.1 in respect of plaint schedule property is admitted by defendants 2, 3 and 8.
13
11.On the other hand their contention is that the said Will is cancelled by Kalahasthi Venkata Subbaiah during his life time and again executed unregistered Will dt: 01.06.1970 in favour of his wife Hanumayamma under whom defendant No.2 claiming title over the plaint schedule property. But the said Will
dt: 01.06.1970 in favour of Hanumayamma is not placed by defendants 2 and 3
before the court and even admittedly during the cross-examination of DW.1 he
stated that he has not mentioned about the loss of Will dt: 01.06.1970 in his written statement. However defendant No.3 as DW.2 stated that the said Will is in the custody of defendant No.1. So it goes to show that absolutely there is no evidence placed by defendant No.2 to prove that Venkata Subbaiah has cancelled
Ex.A.2 and subsequently executed the unregistered Will dt: 01.06.1970 in favour of his wife Hanumayamma. Hence in the absence of Will dt: 01.06.1970 alleged to be executed in favour of Hanumaiah by Kalahasthi Venkata Subbaiah the same cannot be considered as true. It is for the defendant No.2 to prove the said fact to claim plaint schedule property said to be got by him from Hanumayamma under
Ex.B.3. However plaintiff also not denied the execution of Ex.B.3 by Kalahasthi
Hanumayamma in favour of defendant No.2 except pleading ignorance.
12.On perusal of Ex.B.3 which is said to be executed by Hanumayamma it categorically goes to show in the recitals, there is no reference of Ex.A.2, so also its cancellation and subsequently execution of Will dt: 01.06.1970 by
Kalahasthi Venkata Subbaiah in favour of Hanumayamma which are material to explain the title of Kalahasthi Hanumayamma over plaint schedule property to execute Ex.B.3. Absolutely there is no reference of source of title under the Will
dt: 01.06.1970 by Hanumayamma in her favour by her husband Venkata Subbaiah
to execute Ex.B.3 by her in favour of defendant No.2. Contrary to it in Ex.B.3 it is recited that Hanumayamma got the properties under the Will including the plaint schedule property by way of succession after the death of her husband 14 Kalahasthi Venkata Subbaiah, but not by virtue of Will dt: 01.06.1970 as alleged by defendants 2, 3 and 8. So absolutely the source of title as contended by defendant No.2 to Kalahasthi Hanumayamma to execute Ex.B.3 for the plaint schedule property is contrary to the recitals of Ex.B.3 relied by defendant No.2.
13.Further more the evidence of DW.4, who is said to be the attestor of
Ex.B.3 is that he signed as identifying witness of Ex.B.3 in Sub-Registrar Office,
Martur and the evidence elicited during his cross-examination is that at the time of execution of Ex.B.3 by Hanumayamma himself one Sambaiah Panthulu, Khasim were present. After scribing the Will Hanumayamma affixed the thumb impression and at the time of scribing the Will the previous Will was perused and the same is referred in the Will, which is also contrary to the recitals of Ex.B.3 and also the said evidence of DW.4 falsifies the version of defendants 2 and 3 that the alleged
Will dt: 01.06.1970 said to be executed by Kalahasthi Venkata Subbaiah in favour of Hanumayamma is in the custody of defendant No.1. If the evidence of DW.4 is to be believed as true, the entire case of the defendant No.2 that Will dt:
01.06.1970 said to be executed by Kalahasthi Venkata Subbaiah in favour of his wife Hanumayamma is retained by defendant No.1 and it is in the custody of
Defendant No.1 is falsified. So non filing of the Will dt: 01.06.1970 said to be executed by Kalahasthi Venkata Subbaiah contending that it is his last Will which dispel the case of the plaintiff and strengthen the case of the 2nd defendant and suppressing such material document by defendant No.2 goes to show that an adverse inference can be drawn to the case of defendant No.2.
14.On the other hand plaintiff during her evidence consistently deposed that defendant No.1 has got the plaint schedule property under Ex.A.2 and she has purchased the same from Defendant No.1 under Ex.A.4. However during her cross- examination she admitted that there is no document to show that prior to 15 execution of Ex.A.4 defendant No.1 was in possession and enjoyment of the plaint schedule property and after execution of Ex.A.4 to show possession and enjoyment in her name. She also admitted that she do not know the said Hanumayamma sold an extent of Ac.1.10 cents out of the plaint schedule property to one Arvapalli
Jagannadham under a registered sale deed dt: 11.07.1975and an extent of Ac.0.89 cents and Ac.1.15 cents to defendant No.5 for that she has given explanation that when she went to the plaint schedule property in the year, 2012 she came to know that for the plaint schedule property document are brought into existence as if the land was sold and defendant No.4 and 5 and there by defendants 4 and 5 obstructed her from entering into the land stating that they have purchased the land from Hanumayamma.
15.Further plaintiff got examined one independent witness as PW.2, who deposed that he worked as a farm servant at defendant No.1 and defendant No.1 leased out his lands at Vallapalli and Valaparla Villages and used to collect the huge amounts every year. At the relevant time he accompanied defendant No.1.
During his cross-examination he stated that there is no document to show that he worked as a farm servant at defendant No.1. However the fact of defendant No.1 leased out his lands at Vallapalli and Valaparla Villages is not a material aspect to decide the contentions of both parties. So, the evidence of PW.2 is not material to decide the versions of both parties, since it is admitted fact that execution of
Ex.A.4 by defendant No.1 in favour of plaintiff in respect of plaint schedule property. So, the factum of possession by defendant No.1 over the plaint schedule property is not material to consider in clinching the crux of the suit.
16.Further more PW.1 admitted during her cross-examination that entire lands covered under Ex.A.2 came over to the possession and enjoyment of
Hanumayamma after the death of Kalahasthi Venkata Subbaiah and as defendant 16 No.1 was practicing as Advocate at Ongole and Addanki Courts the lands were in possession and enjoyment of defendant No.2. So, the said evidence of plaintiff about the possession over the plaint schedule property by Hanumayamma and defendant No.2 is not fatal to her case, since plaintiff has not admitted the said possession by Hanumayamma and defendant No.2 is by virtue of their title, but explained that as defendant No.1 was a practicing Advocate at Ongole and Addanki the possession of the plaint schedule was with Hanumayamma and defendant No.2.
17.The evidence of DW.3 who is independent witness on behalf of defendant No.2 that Kalahasthi Hanumayamma was in possession of the plaint schedule property till her death. Later defendant No.2 came into possession and the same is sold to defendant No.8 above 20 years ago, thereby defendant No.8 is in possession and enjoyment of the plaint schedule property is not useful to defendant No.2 for the reason that the title of Kalahasthi Hanumayamma over the property by virtue of alleged Will dt: 01.06.1970 said to be executed by Kalahasthi
Venkata Subbaiah in her favour is not able to be proved by defendants 2, 3 and 8.
18. More over the evidence of DW.3 elicited during his cross-examination is that he do not know defendant No.1 has managed the properties of defendants 2 and 3 for some time and that according to him defendant No.2 is in possession of the plaint schedule property by the time of giving his evidence on 28.08.2019 which is also contrary to his chief evidence and also the evidence of defendant
No.2 that by virtue of Ex.B.17 from that day onwards defendant No.8 is in possession and enjoyment of the plaint schedule property. So, the evidence of
DW.3 is also not believable and supporting the version of defendant No.2.
19.Further the evidence of DW.7 and DW.8, who are examined on behalf of defendant No.8 to speak about the possession of defendant No.2 prior to
Ex.B.17 and on execution of Ex.B.17 defendant No.8 was put in possession of the 17 plaint schedule also cannot be considered in favour of defendants 2 and 8 in view of failure of proof of right and title of Kalahasthi Hanumayamma over the plaint schedule property.
20. Further the evidence of DW.7 elicited during the cross-examination also goes to show that the extent of the property purchased by defendant No.8 is
Ac.1.50 cents and he has given boundaries of the said property as East: Canal,
South: Yerra Nageswara Rao, West: Yeakkala Setthaiah and brothers, North: his land, which is not tallying with the plaint schedule property since the plaint schedule extent is Ac.1.61 cents and the boundaries are West : the land of defendant No.1 and North: the land of one Shaik Sharief Land, East: NSP Canal and South: Land of Dw.7 and others land. Further more according to him he has purchased the land towards the north of the plaint schedule property on 25.04.1997 which is even prior to Ex.B.17. But as per Ex.B.17 schedule also the northern boundary is not the land of DW.7. But it is the land of Shaik Yusuf. So the version of DW.7 that as he got the land towards the north of the plaint schedule he is speaking about the possession of defendant No.2 and defendant
No.8 cannot be accepted as true and it is falsified by Ex.B.17.
21.Further evidence of DW.8 during the cross-examination also goes to show that the property situated at Dhupadu which is contrary to the plaint schedule property since as per the plaint schedule property is situated at Valaparla
Village. So, the evidence of DW.7 and DW.8 is not useful to believe the version of defendants 2 and 3.
22.So in the absence of proof of title of Hanumayamma over the plaint schedule property by virtue of the Will dt: 01.06.1970 said to be executed by
Kalahasthi Venkata Subbaiah in her favour, the said Hanumayamma cannot convey any title over the plaint schedule property under Ex.B.3 in favour of defendant 18 No.2 and in turn defendant No.2 will not get any right and title to convey the same to defendant No.8 under Ex.B.17. On the other hand it is admitted fact by defendant No.2 that Ex.A.2 is executed by Kalahasthi Venkata Subbaiah in favour of defendant No.1. So, in the absence of proof of execution of alleged Will dt:
01.06.1970 by Kalahasthi Venkata Subbaiah Ex.A.2 is the last testament of
Kalahasthi Venkata Subbaiah in favour of defendant No.1. Thereby it can be said that defendant No.1 has got title over the plaint schedule property and the same is conveyed by him to the plaintiff under Ex.A.4.
23.Further defendant No.2 relied on Ex.B.1 which is a declaration given by Hanumayamma to Land Ceiling Authorities stating that she is the owner of the plaint schedule property. But the evidence of DW.5, who is Revenue Divisional
Officer is that Ex.B.1 is given by Kalahasthi Hanumayamma original of the same got marked as Ex.B.19. DW.5 also deposed that defendant No.1 has not given any declaration in respect of his properties at Valaparla Village including the plaint schedule property to Land Ceiling Authorities under Ex.B.15. Though DW.5 deposed that Ex.B.19 which is original of Ex.B.1 and under Ex.B.18 which is original of Ex.B.2 declarations are given by Hanumayamma and defendant No.1 respectively in respect of their properties to the Land Ceiling Authorities, but DW.5 categorically admitted during his cross-examination that he cannot say the truth or otherwise of Ex.A.18 and Ex.A.19 declaration with regard to the title of declarants.
So the declaration by Kalahasthi Hanumayamma under Ex.B.19 is according to her own Will, volition and it is her self serving statement. She will not get any right and title and by giving declaration under Ex.B.19 similarly by giving declaration by defendant No.1 under Ex.B.18 the right and title of defendant No.1 is nto divested in the plaint schedule property. Since such declarations are given by the individuals as per their Will and the same will not vest or divest their right and title in the property and the said declarations to Land Ceiling Authorities are not 19 the title documents to believe and to consider their title in the property. So the statements under Ex.B.18 and Ex.B.19 by itself are not the proof of title of
Hanumayamma and disprove the title of defendant No.1 over the plaint schedule property. Further more Revenue documents filed by defendant No.2 under Ex.B.6 to Ex.B.16 and the revenue records placed by defendant No.8 under Ex.B.20 to
Ex.B.32 are not helpful to consider their right and title over the plaint schedule property for the reason that the entries in the revenue records will not be considered to prove the title over the property. Accordingly, Issue No.1 & 2 answered.
24.Additional Issue No.1:
Further the contention of defendant No.8 that since from the date of purchase he is in possession and enjoyment of the plaint schedule within the knowledge of plaintiff and thereby the suit is barred by limitation also cannot be considered for the reason that plaintiff consistently deposing that when she went to the plaint schedule land after Ex.A.4 in the year, 2012 she was obstructed by the defendants 2, 4 to 7 and thereby she filed the suit in the year, 2012 itself. So the suit is within time of limitation. Nowhere in the evidence of DW.1 and DW.6 it is elicited that plaintiff has got knowledge about the selling of plaint schedule land by defendant No.2 to the defendant No.8. So it cannot be consider that plaintiff has got knowledge about the same and inspite of that the suit is filed in the year, 2012 beyond the period of limitation. Additional Issue No.1 answered.
25.Additional Issue No.2 :
Further defendant No.8 claims to be a bonafide purchaser of the plaint schedule property from defendant No.2. His contention is that after enquiring about the title of the defendant No.2 over the plaint schedule property for valuable consideration he purchased it. But during his cross-examination as DW.6 his 20 evidence is that he do not know the grandfather of defendant No.2 by name
Kalahasthi Venkata Subbaiah. Further as to how Kalahasthi Hanumayamma got the plaint schedule property and he do not know that the said Hanumayamma has no right and title over the property to execute Ex.B.3 in favour of defendant No.2 and in turn defendant No.2 has no right and title over the property. So, this evidence of defendant No.8 elicited during the cross-examination takes away his entire version that he has enquired about the title of defendant No.2, who is his vendor proved as false. Since defendant No.8 do not know Kalahasthi Venkata Subbaiah, who is husband of Hanumayamma under whom Hanumayamma claiming the title by virtue of Will dt: 01.06.1970 and he has no knowledge about the
Hanumayamma is not having right and title over the plaint schedule property and in turn defendant No.2 has no right over the property. When defendant No.8 is not assertive in respect of the title of Hanumayamma by virtue of Will dt:
01.06.1970 and also title of defendant No.2 who is his vendor, it is difficult to believe that defendant No.8 is a bonafide purchaser of the plaint schedule property. Accordingly, Additional Issue No.2 answered.
26.The counsel for the plaintiff relied upon the following reported decisions:
1.2004 (2) ALD 635 ( DB)., Kusam Satyanarayana Reddy and others., Vs.,
Kusam Sambrajyamma ( died) by L.Rs., and others., wherein it was held that “ The plaintiff laid the suit for declaration with a gift deed dt: 06.11.1979 which was registered on 12.11.1979 purported to have been executed by late
Punna Reddy in favour of defendants 2 and 3 was illegal and void. They also sought a declaration that they were in possession of the suit property.
Alternatively they prayed that if the Court did not find them in possession of the property, they should be given possession of the suit property which was gifted out”.
21 In view of the ratio in the above reported decision the alternative relief of recovery of possession was sought by the plaintiff for the relief of permanent injunction in the suit on hand can be sought for.
2.AIR 1994 A.P 164., page No.165., Order 7 Rule.7 of C.P.C., Suit for recovery of possession. The courts should record finding that it is impossible to grant the main relief and that as such the alternative relief is being granted. Suit for recovery of possession. Concluded findings of fact that plaintiffs were legal owners of suit properties. Court must grant specific relief of possession.
In the present suit on hand also plaintiff claiming her right and title over the property basing on Ex.A.4 executed by defendant No.1 and also recovery of possession over the plaint schedule property. So the ratio in the above decision is applicable to the suit on hand.
27.On the other hand the counsel for defendants 2 and 3 relied upon the following reported decisions:
1.2019 (3) ALD 302., Uppara Anjinappa ( died) and others., Vs., T. Khasim
Sab ( died) per L.Rs., Section.34 of Specific Relief Act, 1963 – Declaratory suit filed by the plaintiffs claiming ownership of suit property both by inheritance from a common ancestor and also by adverse possession and that they are in possession and enjoyment of land. Defendants filed written statements expressly denying title and possession of plaintiffs. By pleading adverse possession plaintiffs themselves admitted title of defendant. A plea of adverse possession implies an admission of title which is supposedly extinguished. Plaintiffs failed to prove that title that is there in defendants has been extinguished”.
The ratio in the above reported decision is not applicable to the facts on hand in the suit since it is not plea of adverse possession by the defendants. Hence the above reported decision is not helpful to the case of the defendants 2 to 8.
22
2.2014 (2) ALD 157 (SC)., Union of India and others., Vs., Vasavi Co-op.
Housing Society Ltd., and others., wherein Section.34 of Specific Relief Act, 1963 – Suit for declaration of title and possession – Onus to prove his title is on plaintiff. He has to discharge onus on him by adducing sufficient evidence. He cannot succeed on weakness of defendant’s case.
3.2019 (3) ALD 266., Silver Jublee Club., Devarakonda Village Vs., District
Collector, Nalgonda and others., Section.34 of Specific Relief Act, 1963., - Suit for declaration of title- Burden of proof. Plaintiff will have to prove with clear and cogent evidence their right, title and interest. Failure of defendant to prove his case or weaknesses in defendant’s case will not entitle plaintiff to decree as prayed for.
In the present suit on hand the evidence goes to show that by virtue of
Ex.A.2 to Ex.A.4 plaintiff could able to prove that defendant No.1, who is her vendor has got right and title over the property by virtue of Ex.A.2 and he has executed Ex.A.4 in her favour and conveyed title to her over the plaint schedule property. So the plaintiff is able to prove her case basing on the strength of her own case.
28.On the other hand though the defendants 2, 3 and 8 has taken the stand that Ex.A.2 is cancelled by testator by name Kalahasthi Venkata Subbaiah and subsequently executed alleged unregistered Will dt: 01.06.1970 in favour of his wife Hanumayamma under whom defendant No.2 claimed the title under Ex.B.3 and in turn said to be conveyed by him to defendant No.8 under Ex.B.17 but not able to prove the conveyance of title by Kalahasthi Venkata Subbaiah to
Hanumayamma in turn from Hanumayamma to defendant No.2 and thereby from defendant No. 2 to defendant No.8.
In view of the reasons arrived supra, as the plaintiff is able to prove that defendant No.1 being the rightful owner of the plaint schedule property sold the 23 same under Ex.A.4 to her, thereby conveyed title to her. Hence she is able to prove that she is entitled for declaration of her right and title over the plaint schedule property and also for recovery of possession of the same.
29.Issue No.4:
In the result, the suit is decreed with costs declaring the right and title of the plaintiff over the suit schedule property and also for recovery of possession from the defendants 2 to 8.
Dictated to the personal Assistant, Transcribed by her, corrected and
pronounced by me in open court this the 24th day of March, 2020.
Sd/- Smt S. Sujatha,
Senior Civil Judge,
Addanki.
// APPENDIX OF EVIDENCE // Witnesses Examined For Plaintiffs For Defendants
PW1 : M. Jayasri DW.1 : K. Vasudeva Murthy
PW2 : I. Ramachandra Rao DW.2 : K. Audi Lakshmi
DW.3 : J. Rosaiah
DW.4 : Y. Venkateswarlu
DW.5 : Prabhakar Reddy
DW.6 : J. Gopala Rao
DW.7 : Sk. Hussain Ali
DW.8 : B. Yesu Bhakthi
Documents Marked
For Plaintiffs :
Ex.A.1 : Certified copy of registered partition deed dt: 16.12.1957.
Ex.A.2 : Certified copy of Registered Will dt: 20.05.1970.
Ex.A.3 : Certified copy of Registered Sale deed dt: 05.09.2011
Ex.A.4 : Registered Sale deed dt: 05.09.2011
For Defendants :
Ex.B.1 : Declaration dt: 28.05.1976.
24 Ex.B.2 : Certified copy of Declaration dt: 10.04.1985.
Ex.B.3 : Original Registered Will dt: 04.04.1987
Ex.B.4 : Certified copy of Registered sale deed dt: 04.04.1987
Ex.B.5 : Certified copy of Registered Sale deed dt: 11.07.1977
Ex.B.6 : Pattadar passbook
Ex.B.7 : Certified copy of Adangal for the year, 1995-96.
Ex.B.8 : Certified copy of Adangal for the year 1997-98 for S.No.48/1
Ex.B.9 : Certified copy of Adangal for the year 2002-2003 for S.No.48/1
Ex.B.10: Certified copy of Adangal for the year 2002-2003 for S.No.53/4.
Ex.B.11: Certified copy of Adangal for the year 2003-2004 for S.No.48/1
Ex.B.12: Certified copy of Adangal for the year 2003-2004 for S.No.53/4.
Ex.B.13: Certified copy of Adangal for the year 2005-2006 for S.No.48/1
Ex.B.14: Certified copy of Adangal for the year 2005-2006 for S.No.53/4.
Ex.B.15: Certified copy of Adangal for the year 2008-2009 for S.No.48/1
Ex.B.16: Certified copy of Adangal for the year 2008-2009 for S.No.53/4.
Ex.B.17: Certified copy of Registered Sale deed dt: 01.01.1999
Ex.B.18 : Attested copy of C.C.No.1711/Addanki/75.
Ex.B.19: Attested copy of C.C.No.1713/Addanki/75.
Ex.B.20: Certified copy of Adangal through me-seva for the fasli 1427 in S.No.48/3.
Ex.B.21: Certified copy of Adangal through me-seva for the fasli 1429 in S.No.48/5.
Ex.B.22: Land Revenue Receipt for Fasli 1409.
Ex.B.23: Land Revenue Receipt for Fasli 1410
Ex.B.24: Land Revenue Receipt for Fasli 1411, 1414 to 1416
Ex.B.25: Land Revenue Receipt for Fasli 1417 to 1421
Ex.B.26: Land Revenue Receipt for Fasli 1422 to 1424
Ex.B.27: Adangal copy for the fasli 1427 obtained from Mee-seva for S.No.53/4.
Ex.B.28 : Adangal copy for the fasli 1426 obtained from Mee-seva for S.No.48/1
Ex.B.29 : Adangal copy for the fasli 1425 obtained from Mee-seva for S.No.48/1
Ex.B.30 : Adangal copy for the fasli 1424 obtained from Mee-seva for S.No.53/4
Ex.B.31 : Certified copy of Adangal Namuna obtained from Me-seva dt: 01.06.2018
Ex.B.32 : Pattadar passbook standing in the name of Janjanam Gopala Rao.
Sd/- Smt S. Sujatha,
Senior Civil Judge,
Addanki. // True Copy \\
S.C.J., Addanki.
25
IN THE COURT OF SENIOR CIVIL JUDGE :: ADDANKI ::
PRESENT : SMT S. SUJATHA,
SENIOR CIVIL JUDGE, ADDANKI.
Tuesday, this the 24th day of March, 2020.
Original Suit No. 46 of 2012
Between:
Minnekanti Jayasri, D/o. Dhulipalla Ramachandraiah, Adopted D/o. Minnekanti Satyanarayana, aged 44 years, Hindu, House Wife, R/o. Rajendra Nagar, 3rd Line, D.No.3-1-69, Guntur.… Plaintiff.
Vs.,
1. Dhulipalla Ramachandraiah ( Died)
2. Kalahasthi Vasudeva Murthy s/o. Pitchaiah, aged 56 years, Hindu, Cultivation, r/o. Dwarakapadu Village, H/o.Valaparla of Martur Mandal.
3. Kalahasthi Audilaxmi, W/o. Vasudeva Murthy, aged 54 years, Hindu, House Wife, R/o. Dwrakapadu Village, H/o.Valaparla of Martur Mandal.
4. Janjanam Anjaneyulu @ Devudibhaktha Anjaneyulu, S/o. Anjaneyulu @ Gopala Rao, aged 65 years, Hindu, Business,
5. Goli Syamalamba, W/o. Subbarayudu, aged 65 years, Hindu, House Wife,
6. Goli Nageswara Rao, S/o. Subbarayudu, aged 50 years, Hindu, Business,
7. Shaik Baji, S/o. Masthan, aged 40 years, Muslim,
8. Janjanam Gopala Rao, S/o. Gurubhakta Anjaneyulu, Aged 45 years, Hindu, Cultivation,
Defendants 4 to 8 are R/o.Valaparla of Martur Mandal.
(D.8 is added as per orders in I.A.No.271/2014
Dt: 02.02.2018) … Defendants
The suit is filed for declaration of plaintiff right over the plaint schedule property with a consequential relief of possession, evicting the defendants 2 to 8 there from and deliver the possession of the suit schedule property to the plaintiff and for costs of the suit.
Plaint Presented on : 23.04.2012 Plaint Registered on : 23.04.2012
Valuation and Court Fee: As this suit is filed for declaration and permanent injunction. As per the certificate given by the Sub-Registrar, Martur market value of the suit property is Rs.1,61,000/-. As per the document the market value of the property is Rs.1,94,000/-. Thus the suit is value at Rs.97,000/- upon which a court fee of Rs.3346/- is paid U/Sec.24 (b) of A.P.C.F & S.V.Act. As per the certificate given by the Sub-Registrar, Martur market value of the suit property is
Rs.1,61,000/-. As per the document the market value of the property is
Rs.1,94,000/-. Thus the suit is value 3/4th of the market value is Rs.1,45,500/- upon which a court fee of Rs.3,926/- is paid U/Sec.24 (a) of A.P.C.F & S.V.Act.
Since court fee of Rs.3346/- is already paid, accordingly plaintiff has paid balance amount of Rs.580/-. Total Court fee of Rs.3926/- is paid.
Cause of Action: The case of action for the suit arose on 16.12.1957 the date of execution of the partition deed between Kalahasthi Venkata Subbaiah and Pitchaiah where at the suit schedule property amongst other properties were allotted to the share of Venkata Subbaiah and on 20.05.1970 the date of execution of the Will by
Kalahasthi Venkata Subbaiah making various bequeaths where under the 1st defendant became entitled to the suit property in addition to other properties on 20.06.1970 when Venkata Subbaiah died and the Will executed by him came into force and subsequently on 05.09.2011 the date of purchase of the suit property by the plaintiff from the 1st defendant and ever since when the plaintiff is in possession and enjoyment of the suit property in her own right and two days ago when there was obstruction to the coolies, and when after filing the suit when the 8th defendant in collusion with other defendants forcibly occupied the suit schedule property and when defendants 2 to 8 harvested the crop in the suit schedule property at Valaparla Village, where the schedule property is situated, which is within the Jurisdiction of this Hon'ble Court.
This suit is coming on 12.03.2019 before me for final hearing in the presence of Sri V. Subrahmanyam, Learned Advocate for Plaintiff and of Sri V.
Anji Reddy, Learned Advocate for defendant No. 2 & 3; and defendants 4 to 7 remained exparte; and of Sri A. Rama Swamy, Learned Advocate for defendant
No.8; and defendant No.1 died; and upon perusing the oral and documentary evidence on record and hearing the arguments on both sides, and having stood over for consideration till this day, this Court doth order and decree:
1.that the suit be and the same is hereby decreed;
2.that the right and title of the plaintiff over the suit schedule property be and is hereby declared;
3.that the plaintiff be and is hereby entitled to recover the possession of the suit schedule property from the defendants 2 to 8 ;
4.that the defendants 2 to 8 be and are hereby directed do pay to the plaintiff a sum of Rs. 3928/- towards institutional costs of the suit; ( C.M & F.C not filed on either side ) (Schedule attached to decree)
Given under my hand and the seal of the Court, this the 24th day of March, 2020.
Senior Civil Judge,
Addanki.
// Table of Costs //
For Plaintiff For Defendants Rs. Rs.
For Vakalath 2.00 2.00 For Court Fee 3926.00 ( C.M & F.C not filed) ( C.M & F.C not filed)
-------------- ------------
TOTAL 3928.002.00
-------------- ------------
Senior Civil Judge,
Addanki.
NOTE: Both parties/parties concerned in this case are hereby informed that the exhibited and non-exhibited documents should retrieve within the stipulated time on a condition that “ the same should produce as and when required by the Court”.