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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGECUMJUDL.
MAGISTRATE OF FIRST CLASS AT VIZIANAGARAM
Present: Sri Shaik Abdul Shariff
Principal Junior Civil JudgecumJudl. Magistrate of I Class,
Vizianagaram.
Friday, the 20th day of March, 2020.
O.S.No.42/2016
Between:
1. Sri Danthuluri Chiranjeevi Raju
2. Sri Gottimukkala Venkata Narayana Raju .… Plaintiffs
A n d :
1. Sri Pakalapati Vasudeva Raju
2. Sri Boni Tata Rao …. Defendants
This suit is coming on 16.03.2020 for final hearing before me in the presence of Sri K. Kameswara Rao, Advocate for the Plaintiffs and of Sri Ch. Ram Babu and Sri P.R.Prasad, Advocates for Defendants and having stood over till this day for consideration, this court delivers the following:
J U D G M E N T
This suit is filed by the plaintiffs for grant of permanent injunction against the defendants and their men from interfering with the plaintiffs’ possession and enjoyment of plaint schedule property and for cost of the suit.
2. The facts of the case in essence which is as follows:
That the plaintiffs 1 and 2 state in the plaint that they purchased the plaint schedule property by means of registered sale deed dated 25.07.2015 from the GPA Holder of Gottimukkala Krishna Murthy Raju and ever since they are in possession and enjoyment of the suit schedule property. The defendants 1 and 2 have no manner of right in the suit schedule property and they have been interfering into the suit schedule property. Therefore, the suit be decreed.
Controverting the averments, the 1st defendant filed written statement and the same is adopted by D2 mutadis and mutandis, and D1 inter alia 2 maintains that he is the absolute owner of the plaint schedule property and he has been in peaceful possession and enjoyment of the property and he used to run brick industry in the plaint schedule property, and right now the plaint schedule property is vacant site. Therefore, the suit is liable to be dismissed.
3. Basing on the above factual matrix the following issues germane for consideration.
1) Whether the plaintiffs are entitled for relief of permanent injunction as prayed for?
2) To what relief?
4.That the 1st plaintiff by name Dantuluri Chiranjeevi Raju filed proof affidavit in lieu of chiefexamination, and reiterated by and large all the averments made in the plaint, and in order to buttress his contention got himself examined as PW1, and filed proof affidavit of PW2 and same is eschewed and examined PW3 and got Ex.A1 to A7 marked. The 1st defendant in order to fortify his contention got himself examined as DW1 and got Ex.B1 to B5 marked.
5.On the aforementioned evidential settings, it is strenuously canvased by the learned counsel for the plaintiff, Sri K. Kameswara Rao garu that one
Gottimukkala Krishnam Raju had recognizable title over the suit schedule property, and which was devolved upon him through his paternal ancestors, and he exercised unobstructed control over the suit schedule property during his lifetime. Ex.A3 IB Namuma in vivid terms demonstrates that the predecessor in title of the vendor of PW1 exercised complete dominion over the suit schedule property. Aftermath of the death of Gottimukkala Appala
Suryanarayana Raju, a verbal division was ensued in between the heirs of 3
Gottimukkala Appala Suryanarayana Raju, interse and during partition, the suit schedule property fell to the share of Gottimukkala Krishnamurthy
Raju, and he executed a General power of attorney in favour of Kolukuluri
Srinivasa Raju covered under Ex.A2. PW1 and the 2nd plaintiff jointly purchased the suit schedule property from the GPA holder by name
Kolukuluri Srinivasa Raju covered under Ex.A1 sale deed dt.25.07.2015, and ever since they are exercising physical control over the suit schedule property. It is the jurisprudential justification that the plaintiff is obligated with the duty to prove his case only by preponderance of probabilities and not with mathematical precision. Thus, non production of pattadar pass book and title deed does not create any serious dent in plaintiffs case. Ex.A5 to A7 photographs and CD in unmistakable terms demonstrate that PW1 and the 2nd plaintiff are the enjoyer and possessor of the plaint schedule property. No positive and dependable proof is produced by DW1 to show that he carried on brick business in the suit schedule property. Ex.B1 unregistered sale deed and Ex.B2 certificate copy of the sale deed have no legal efficacy in the eye of law. Therefore, giving stamp of approval to the case of the plaintiff is wholly sustainable in law.
6.Resisting the arguments, it is strongly canvased by the learned counsel for the defendant, Sri P. R. Prasad garu that a person who approaches the court for seeking the discretionary relief of perpetual injunction must be able to satisfy the court that his dealing of the matter has been fair, honest and free of any fraud or illegality, and further he has to show inter alia that he did not act in an unfair or inequitable manner. In the case on hand, the evidence available on record clearly depicts that PW1 came to the court with a soiled hands. Originally one Gottimukkala
Narasimha Raju had marketable title over the plaint schedule property and he begot one son through his former wife i.e., Gottimukkala Suri Raju. After 4 the demise of the 1st wife, Narasimharaju wedded another woman, and he had four sons through her. Narasimha Raju, during his lifetime parted with some property to Suri Raju. The suit schedule properties and other properties were in possession and enjoyment of four sons. After his demise,
Appala Suryanarayana Raju used to monitor the suit schedule properties and his name was cropped up in the revenue records. During the year 1975, all the family members got their shares individualized. During partition, an extent of Ac.016 cents i.e., a part of the plaint schedule property covered by
Sy.No.62/6 fell to the share of Chandra Satyanarayana Raju, while remaining Ac.008 cents fell to the share of Butchi Venkatapathi Raju.
Chadra Satyanarayana Raju and his son Krishnam Raju had unfettered rights over the land admeasuring Ac.016 cents and thus, they alienated
Ac.016 cents in favour of the father of D1 by name Pakalapati
Ramakrishnam Raju under the unregistered sale deed dated 25.05.1980 covered under Ex.B1. Nonetheless, Ex.B1 is not registered, the court is not debarred from placing reliance, and Ex.B1 can be legally looked into for collateral purpose i.e., possession over the suit schedule property. After the demise of Butchi Venkatapathi Raju, the remaining Ac.008 cents devolved upon his son Narayanamurthy Raju. The father of the 2nd defendant by name Boni Appanna purchased Ac.008 cents covered by Sy.No.62/6 under registered sale deed dated 15.0.1994 covered under Ex.B2. Subsequent to the purchase, a consensus arrived in between the father of the 2nd defendant and DW1, and accordingly, the exchange of properties were taken place, and pursuant to the verbal commitment, the 2nd defendant handed
Ac.008 cents, to DW1 and in turn he gave Ac.010 cents to the father of the 2nd defendant in an extent of Ac.010 cents covered by Sy.No.75/13 and ever since DW1 has been exercising complete dominion over the suit schedule property. Therefore, the suit deserves dismissal.
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7.In order to appreciate the tenability and sustainability of the rival stances, now at this juncture, I am obliged to advert to the material emanated from the testimony of PW1 to PW3, DW1 and recitals of Ex.A1 to
Ex.A7 and Ex.B1 to Ex.B5.
ISSUE NO.1:
8.Whether a good deal of reliance can be placed upon the oral
testimony of the DW1 without there being any credible or persuasive
documentary proof to show that Chandaka Satyanarayana Raju and
Butchi Venkatapathi Raju got an extent of Ac.0.16 cents while Buchi
Venkatapathi Raju acquired Ac.0.08 cents during partition?
For fair appreciation and ready reference the material averments made in para 5 of the written statements needs extraction. Para 5 goes on to disclose that " Thereafter all of them have orally partitioned the said
joint family properties in the year 1975 by metes and bounds. In that
partition apart from other properties, the land in an extent or Ac.0.16
cents covered by Survey No.62/6 of Peda Thadivada Village i.e., the
part of the plaint schedule property fell to the share of Chandra
Satyanarayana Raju and the remaining extent of Ac.0.08 cents in the
plaint schedule property fell to the share of Butchi Venkatapathi Raju
apart from other properties."
It is the cardinal rule of law of evidence that in all cases best evidence has to be produced, and the evidence cited is of sterling quality, and which the court gets convinced of regarding the existence and nonexistence of the factinissue. In the matter at hand, as noticed, in essence from the pleadings that Chandra Satyanarayana Raju got Ac.0.16 cents while Butchi
Venkatapathi Raju got Ac.0.08 cents of the land covered by Sy.No.62/2. In 6 such circumstances, a powerful question is bound crop up as to why the name of Chandra Satyanarayana Raju and Butchi Venkatapathi Raju are not reflected in the revenue records as the pattedar and enjoyer of the suit schedule property from 1975. In this regard, no authenticated explanation much less satisfactory emanated from the side of DW1.
9.As to why the pleadings of DW1 is uncommunicative with
respective with respect to the share of Appala Suryanarayana Raju
and Narayana Murthy Raju?
It is the essential contest of DW1 that Chandra Satyanarayana Raju and Butchi Venkatapathi Raju got Ac.0.16 cents and Ac.0.08 cents of the land covered by Sy.No.62/6 respectively. However, the pleadings of the DW1 is sadly silent with respect to the share of Appala Suryanarayana Raju and
Narayana Murthy Raju.
10.Whether the registration of document introduces an element of
solemnity to the recitals therein and its nonregistration would mark
the stamp of illegality?
In this disputative backdrop, I may revert to the averments made in para 6 of the written statement. It is unfolded in para 6 of the written statement that " This defendant submits that while the matters stood
thus, being the absolute owner of the land in an extent of Ac.0.16
cents in S.No.62/6 i.e., part of the plaint schedule property, the said
Chandra Satyanarayana Raju along with his son Krishnam Raju sold
away the same to the father of this defendant Vizianagaram.,
Pakalapati Rama Krishnam Raju under a sale deed dated
25.05.1980." 7
In order to resolve the problem unfolded in this case, I think apt to revisit to the Judgment of our honourable High Court reported in 2019 (3)
ALT 79 in between V.Madhusudhana Rao Vs S. Nirmalabai and others.
What is held in essence in the aforementioned judgment is that the ownership and possession cannot be separated, and both are one and the same. Therefore, in view of the legal ratio, in the absence of registration of
Ex.B1 sale deed, the operative recitals in Ex.B1 have no legal efficacy.
11.As to what held back Pakalapati Rama Krishna Raju who is the
father of the 1st defendant not to get Ex.B1 registered in the Registrar
Office or was there any pressing reason which forestalled him for not
getting it registered?
Ex.B1 unregistered sale deed is attacked on the premise that the stamps covered under Ex.B1 are purchased from the private stamp vendor, and Ex.B1 does not reflect the license number of the stamp number and thus, it is a spurious and illegitimate document and the court cannot be the venue to enforce void document.
It is the settled principle of law that when the document is charged with suspicious circumstances, it is for the propounder to wipe out those suspicious circumstances. In the case on hand, DW1 did not eradicate these circumstances, and no cogent explanation emerged out as to what impelled the father of DW1 not to get Ex.B1 registered in the Registrar Officer.
Therefore, in view of these reasons, implicit reliance cannot be placed upon the recitals of Ex.B1.
12.Whether on what basis the father of the 2 nd defendant by name
Boni Appanna purchased the property covered under Ex.B2 sale deed
dt.15.07.1994?
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The next bone of the contention in between the parties is that the father of the 2nd defendant purchased Ac.0.08 cents from the wife of Bucthi
Venkatapathi Raju by name Saraswathi and his son Narasimha Murthy
Raju. In this backdrop, I may reproduce the crossexamination of DW1.
During crossexamination, DW1 maintains that "I did not produce any
documentary proof to show that Butchi Venkatapathiraju and his
successor were in possession and enjoyment of Ac.008 cents of land
covered by Sy.No.62/6". However, no acceptable material forthcame from the side of the 2nd defendant that by seeing which material his father got carried away to purchase Ac.0.08 cents of land from his vendors.
13.Whether DW1 cited any revenue record to show that himself and
his father were and is in possession and enjoyment of the suit
schedule property?
The learned counsel for the defendant confronted DW1 that he did not produce any revenue record to show that himself and his father were and is in possession and enjoyment of the suit schedule property, on which, DW1 went in denial mode. If indeed, his father was and he is in possession of any revenue record, as to what impelled him not to produce the same.
14.Whether an atmosphere of distrust prevails on careful perusal of
the entries in Ex.B3 and B4 pattadar pass book and title deed stand
in the name of Pakalapati Rajeswari, W/o Ramakrishna Raju, who is
mother of DW1?
The third fold of the argument advanced by the learned counsel for the defendant is that after the demise of the father of DW1 by name
Ramakrishna Raju, the revenue officials issued pattadar pass book and title deed covered under Ex.B3 and B4 in the name of mother of DW1 and thus, 9 they graphically reveal that DW1 is in possession and enjoyment of the suit schedule property. In this disputative backdrop, I feel it relevant to advert to the entries made in Ex.B3 and B4.
1) At page No.4 of Ex.B3, at serial No.13, the survey number i.e., 626 is incorporated by scraping the earlier entry, and the extent is also interpolated by scratching the former entries.
2) At page No.4 of the Ex.B4, at Serial No.13, the extent i.e., 24 is written with different black ink pen. The digit "2" is inserted.
3) It is shown in Ex.B4 the patta number is 182, however, it is struck off and patta No.537 is stamped. Ex.B3 reflects the patta number is 112.
Thus, in view of the unexplained and unwarrantable interpolations and internelations in Ex.B3 and B4, placing reliance is risky and hazardous and the court can safely depart, and the presumption as envisaged under 6A of ROR Act does not spring into action in favour of the defendants.
15.Whether the party to the proceedings are controlled by the pleadings and they cannot travel beyond the pleadings?
Order VI Rule 2(1) C.P.C implicitly makes it imperative and obligatory on the part of the parties to the lis to have a strict adherence to the statutory prescriptions laid in the statute. In the case on hand, it is the case of DW1 that, after demise of his father, the revenue officials issued pattadar pass book and title deed in the name of his mother. However, there is no such asseverations in the written statement of DW1. It is the settled principle of law that any amount of evidence which is let in by the party without pleading is inconsequential.
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16.Whether the exchange of properties as pleaded by DW1 satisfies
the legal parameters as laid down in Section 17 of Registration Act
read with 118 of Transfer of Property Act?
In this debatable backdrop, once again i am back to the averments made in para 6 of the written statement. The substantial revelation from the para 6 of the written statement is that "This defendant submits that in
view of the good relations with the father of the 2nd defendant
Appanna, this defendant being the absolute owner of the major extent
in the plaint schedule land for his convenient enjoyment of his
property requested the father of the 2nd defendant to part with the
remaining extent of Ac.008 cents in the plaint schedule property and
accordingly in terms of their understanding, both of them orally
agreed to exchange their properties as this defendant also having
lands adjacent to the lands of the said Appanna. As such, the father
of the 2nd defendant gave his Ac.008 cents of land i.e., part of the
plaint schedule property to this defendant in the year 1997 and put
him in physical possession of the same and likewise this defendant
gave his land in Survey no.75/13 in an extent of Ac.010 cents to the
father of the 2nd defendant. As such, this defendant became the
absolute owner of the entire plaint schedule property and he has been
in physical and lawful possession and enjoyment of the same by
exercising all rights of ownership thereof."
Now the aforementioned factual matrix has to be tested on the touch stone of Section 118 of Transfer of Property Act.
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Section 118 of Transfer of Property Act, in essence, lays down that "Exchange" defined When two persons mutually transfer the ownership of one thing for the ownership of another neither thing or both things being money only, the transaction is called an "exchange".
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale."
The plan of action as laid down in Section 118 makes it abundantly clear that the exchange involves transfer of property and thus, it shall be registered as per Section 17 of Registration Act. In the case on hand, the exchange as contended is not registered. Therefore, the plea of exchange propounded by DW1 cannot be countenanced in view of the legal interdict as envisaged under Section 17 r/w 118 of Transfer of Property Act.
17.Whether absentation of the 2nd defendant i.e., Boni Tata Rao
into the witness box is certainly a big infirmity, and the 2nd
defendant cannot escape from being blamed for not getting into the
witness box?
The sum and substance of the argument of the learned counsel for the defendant is that in view of the exchange of properties, the father of the 2nd defendant is in possession and enjoyment of Ac.010 cents covered by
Sy.No.75/13.
It is well neigh settled that mere averment will not suffice, unless it is substantiated by some cogent proof. In the case on hand, D2 did not get into the witness box to prove the possession of DW1 in the entire extent of the suit schedule property and his possession over the land admeasuring Ac.0 10 cents covered by Sy.No.75/13.
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18.Whether DW1 offered any substantial good reason as to why
Ex.B3 and B4 reflect the land admeasuring Ac.010 cents covered by
Sy.No.7513 when exchange was alleged to have been taken place?
It is proverbial that witness may tell lie but the documents do not and they speak as it is. The factual scenario from the written statement of D1 reveals that the exchange was taken place during the year 1997. It appears from Ex.B3 pattadar pass book and B4 title deed that the land covered by
Sy.No.532 to an extent of Ac.044 cents and the land covered by Sy.No.575 to an extent of Ac.276 cents were sold and the entries are rounded off, and there is an endorsement to that effect with red ink pen, and the endorsement bears the date 06.11.2006. Now the stage is set for application of logic. If really the exchange is taken place, DW1 would have got the exchanged property i.e., Ac.010 cents in Sy.No.7513 rounded off in Ex.B3 and Ex.B4.
In this regard, no intelligent explanation emerged from the side of DW1.
19.Whether from Ex.A3 1B Namuna and A4 Pahani Adangal, the
conclusion is irresistible that the suit schedule property fell to the
share of Gottimukkala Appala Suryanarayana Raju, S/o Narasimha
Raju during partition?
Appreciation of evidence in case of like this is a serious business of the court, and when there is no direct evidence, the court is obligatory with the duty to take the aid of presumptive evidence, and the presumptive evidence too has higher degree of probative value. Now, in this context, for answering the query posed, i may recapitulate the factual scenario emanated from the pleadings of the plaintiffs. Para III (b) of plaint reveals that "The said
Gottimukkala Appala Suryanarayana @ Gottimukkala Appala
Suryanarayana Raju inherited the plaint schedule property and some
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other properties from his ancestors and enjoyed the same with
absolute rights during his lifetime."
It is axiomatic that what is pleaded is to be proved. In the case on hand, Ex.A3 and A4 in vivid terms reveal that Gottimukkala Appala
Narasimha Raju had transferable interest in the suit schedule property.
Certain facts are incapable of direct proof and their existence can be inferred from the circumstances or from the proved facts. Ex.A3 and A4 make it very clear that the combined status was severed and the suit schedule property fell to the share of Appala Suryanarayana Raju, and not to the share of
Surya Chandra Raju and Buchi Raju. Confessedly, the vendor of PW1 by name Gottimukkala Krishna Raju is the son of Gottimukkala Suryanarayana
Raju. Therefore, after the demise of Gottimukkala Appala Suryanarayana
Raju, the suit schedule property devolved upon Gottimukkala Krishnam
Raju, therefore, he has transferable right, title, interest and possession over the suit schedule property and he has got every right to sell away the property whom so ever he likes.
20.Whether non examination of Gottimukkala Krishna Murthy Raju casts bad reflection upon the case of the plaintiffs?
The main thrust of the argument of the learned counsel for the defendant is that Gottimukkala Krishna Murthy Raju is the main and material witness to unfold the case of the plaintiff with respect to the division of shares and devolution of property, and his non examination is bound to be fatal to the case of the plaintiffs and the case of the plaintiffs would flap.
Ex.A3 1B Nanuma and Ex.A4 Pahani adangal unequivocally establishes that the father of Gottimukkala Krishna Murthy Raju by name
Gottimukkala Appala Suryanarayana Raju exercised complete dominance over the suit schedule property. Therefore, nonetheless, Gottimukkala 14
Krishna Murthy Raju is not examined, however, Ex.A3 and A4 are solidly backing the case of the plaintiffs.
21.Whether PW1 resorted to untruth with respect to his possession and enjoyment over the suit schedule property?
Ex.A5 and A6 photos with CD clearly reveal that the plaintiffs are carrying on business in the suit schedule property under name and style of "Dhanunjaya Garden and Restaurant". Assume for a moment and for arguments sake, if plaintiffs are not carrying on any business under the caption of Dhanunjaya Garden and Restaurant, in such a case, what precluded the defendants not to get the commissioner appointed for noting down the exact location of Dhanunjaya Gardens. Thus, this material drops an hint that plaintiffs are in physical possession and enjoyment of the suit schedule property.
In the wake of the aforementioned reasons, i am of the unhesitant opinion that the plaintiffs succinctly established their possession over the plaint schedule property. Thus, this issue is answered in favour of the plaintiff and against the defendants.
Issue No.2:
22.In the result, the suit is decreed with costs granting permanent injunction restraining the defendants and their men from interfering with the plaintiffs peaceful possession and enjoyment of plaint schedule property.
Typed to my dictation by the Stenographer Grade III, corrected and
pronounced by me in the open Court, this the 20 th day of March, 2020.
Sd/ Shaik Abdul Shariff
PRINCIPAL JUNIOR CIVIL JUDGECUM,
JUDL. MAGISTRATE OF I CLASS, VIZIANAGARAM.
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APPENDIX OF EVIDENCE
Witnesses examined
For Plaintiffs: For Defendants:
PW1: Dantuluru Chiranjeevi Raju DW1: Pakalapathi Vasu Deva Raju
PW2: G. Venkata Krishna (eschewed)
PW3: K. Srinivasa Raju
DOCUMENTS MARKED
For Plaintiffs:
Ex.A1: Certified copy of the sale deed dt.27.05.2015 executed by K. Srinivasa Raju the General Power of Attorney holder of G. Krishna Murthy Raju in favour of PW1 and 2nd plaintiff.
Ex.A2: General Power of Attorney dt.15.05.2015 executed in favour of K. Srinivasa Raju by G. Krishna Murthy Raju (Ex.A1 and A2 are marked subject to the proof and relevancy as they are not original).
Ex.A3: 1B Register, dt.11.01.2016.
Ex.A4: Pattadhar adangal, dt.11.01.2016.
Ex.A5: 12 photographs along with CD.
Ex.A6: 13 photos along with the CD.
Ex.A7: Photo.
For defendants:
Ex.B1: Unregistered sale deed (Marked only for collateral purpose and not for main purpose since stamp duty penalty is paid.
Ex.B2: Certified copy of sale deed, dt.07.07.1994 executed by Gottimukkala Saraswathi in favour of the father of 2nd defendant by name Boni Appanna.
Ex.B3: Pattadhar pass book.
Ex.B4: Title deed.
Ex.B5: Encumbrance Certificate.
Sd/ Shaik Abdul Shariff
PRINCIPAL JUNIOR CIVIL JUDGECUM,
JUDL. MAGISTRATE OF I CLASS, VIZIANAGARAM.