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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE : SULLURPET
Monday, this the 24th day of April, 2017.
Present : Smt. T.Haritha,
Principal Junior Civil Judge, Sullurpet
ORIGINAL SUIT No.122 OF 2010
1. Muthukuru Chengamma
2. Muthukuru Ramesh
3. Muthukuru Rambabu
4. Muthukuru Nagaraju … Plaintiffs
Vs.
1. Nimmala Polaiah
2. Nimmala Gunnaiah
3. Marri Jakkaraiah
4. Marri Jayamma
5. B. Kumari (died & abated) … Defendants
This suit coming on 28.3.2017 for final hearing before me, in the presence of Sri K. Dharma Prasad - Advocate for the plaintiff, and of Sri B. Venugopal Reddy - Advocate for the defendants Nos.1, 3, 4 and Sri V. Muni Krishna Reddy – Advocate for the 2nd defendant and the case against the 5th defendant was abated as she died and the matter having stood over for consideration to this day, and this Court delivered the following :-
J U D G M E N T
The suit is filed for declaration to declare the title of the plaintiffs 2 to 4 over suit schedule property and to grant consequential relief of perpetual injunction restraining the defendants, their men and followers and agents from interfering with the plaintiffs’ peaceful possession and enjoyment of plaint schedule property and for costs.
2. The brief averments of the plaint are as follows:-
(i) Originally suit schedule property belongs to one
Kamireddy Rama Raghava Reddy of Pulivendra Village. He had no children. He died intestate. His wife name is Kamireddy Chandra
Vadanamma. She is the only legal heir of Rama Raghavareddy. After 2 the death of Rama Raghava Reddy, his wife Chandra Vadanamma sold away suit schedule property to defendants 1 and 2 under Sale letter dt.12.6.1984 on a stamp paper and delivered possession. Since then, defendants 1 and 2 were in possession and enjoyment of the same till the year 1992.
(ii) Land is situated near Pulivendra Harijanawada. It became residential area. Defendants 1 and 2 jointly sold an extent of
Ac.0.05 cents house within Ac.0.29 cents to father of plaintiffs 2 to 4 under an agreement of sale on 10.7.1992 for consideration of
Rs.2,350/-. The said Ac.0.05 cents fell to the share of 2nd defendant.
Defendants 1 and 2 jointly sold Ac.0.05 cents of land which fell to the share of 2nd defendant under agreement of sale to the father of plaintiffs on 25.7.1992 for consideration of Rs.3,000/-. Later 1st defendant sold away remaining land to father of plaintiffs 2 to 4 under agreement of sale dt.11.6.1993 for consideration of Rs.4,200/-. Thus, the entire plaint schedule property was purchased by the father of plaintiffs 2 to 4. He was in possession and enjoyment of the same till his death. Defendants 1 and 2 handed over original sale letter dt.12.6.1984 to Muthukuru Thirupalu i.e. father of plaintiffs 2 to 4.
The possession and enjoyment of the Thirupalu was recognized by the
Revenue Department.
(iii) During the life time of Thirupalu, he sold Ac.0.06 ½ cents to Muthukuru Subramanyam and Yerramuthu Sreenivasulu.
They constructed a pucca house and residing therein. Remaining
Ac.0.22 ½ cents and the vacant land is in possession and enjoyment of
M. Thirupalu. M. Thirupalu died intestate leaving behind him the plaintiffs as his legal heirs. After the death of Thirupalu, plaintiffs are in possession and enjoyment of plaint schedule property till today.
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The 1st plaintiff being old aged, she divided the suit schedule land into 3 equal shares and executed the settlement deed in favour of plaintiffs 2 to 4 after relinquishing her share in the property on 27.3.2010.
Thereafter since the suit schedule land is uneven land the plaintiffs 2 to 4 cleared the suit schedule land and fix up the boundaries as per the settlement deed. The plaintiffs and their family members have been in possession and enjoyment of suit schedule property since the year 1993. In order to avoid further litigation, plaintiffs 2 to 4 applied to the Revenue Department to fix up stamp duty of agreement of sale.
Then the Revenue Department conducted enquiry, in that enquiry 1st defendant did not give his consent to the agreement of sale dt.11.6.1993 and agreed the sale of Ac.0.15 cents of 2nd defendant and his signature on two agreements dt.10.7.1992 and 25.7.1992, then, the Tahsildar, Tada Mandal kept the file pending. Then the 1st plaintiff made an application to District Collector, Nellore. Then, the
Joint Collector passed the order on 14.5.2010 directing the plaintiffs to approach the competent court for declaration of their title though the defendant sold away the suit schedule property.
(iv) Taking advantage of the death of Tirupalu, they did not give consent. The defendants without having any manner of right, trying to interfere, then the plaintiffs approached the police, then the police directed the plaintiffs to approach civil court. Plaintiffs are in joint possession of plaint schedule property. The defendants are powerful and backed by anti social elements, they have openly proclaimed on 2.7.2010, they will dispossess the plaintiff from the plaint schedule property. The plaintiffs are unable to resist the high handed acts of the defendants. Hence the suit.
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3. The 1st defendant filed the written statement. The defendants 3 and 4 filed adoption memo adopting the written statement of 1st defendant. The 2nd defendant filed separate written statement. The case against the 5th defendant was abated as she died.
4.The brief averments of the written statements are follows:-
Both parties admitted the written statements and submitted originally suit schedule property belongs to Kamireddy
Raghavareddy. He died intestate. He had no children. His wife name is Kamireddy Chandra Vadanamma. She is sole legal heir. After the death of Kamireddy, his wife sold away Ac.0.29 cents out of Ac.24/1 of
Pulivendra Village through a sale letter dt.12.7.1984 on a stamp paper. 1st defendant claims he alone purchased property and 2nd defendant claims both of them purchased the property and they both became absolute owners. 2nd defendant deposed he sold Ac.0.05 cents out of Ac.0.29 cents in favour of husband of 1st plaintiff. They both denied sale under agreement of sales which were marked as
Exs.A1 to A3 in favour of husband of 1st plaintiff. Both defendants admitted sale of Ac.0.05 cents of land in favour of M. Thirupalu out of
Ac.0.29 cents. Then the property will be Ac.0.24 cents. In the plaint, the plaintiffs are claiming 22 ½ cents. The 1st defendant admitted he handed over the agreement of sale dt.10.7.1992 to Thirumala. They are in possession and enjoyment of Ac.0.14 cents of land with boundaries. The boundaries given in plaint schedule are incorrect. Till today the 1st defendant has been in possession and enjoyment of
Ac.0.14 cents along with pathway of Ac.0.01 cent. Till today the 1st defendant has been in possession and enjoyment of Ac.0.14 cents -5- along with pathway of Ac.0.01 cent. He never sold or delivered his
Ac.0.14 cents of land to M. Thirupalu under registered settlement deed dt.27.3.2010 is in between the plaintiffs. It is not binding on the defendant. He did not acquire any title. He cannot execute registered deed. The sale is for the purpose of litigation. The petition is filed for appointment of Advocate Commissioner. Advocate commissioner visited the suit schedule property and filed his report. Suit is bad for agreement of sale. There is no cause of action for filing the suit.
Prays to dismiss the suit. The 2nd defendant further added 1st defendant and plaintiffs colluded, hence original agreement of sale dt.12.7.1984 is available in the hand of plaintiffs. Plaintiffs never in possession and enjoyment of suit schedule property. Prays to dismiss the suit.
5. In view of the pleadings, the following issues are settled for trial:-
1)Whether the plaintiffs 2 to 4 are entitled for declaration of right, title over the suit schedule property?
2)Whether the plaintiffs are in possession and enjoyment of the suit schedule property?
3)Whether the suit is bad without prayer for specific performance of agreement of sale?
4)Whether there is no cause of action for the suit?
5)Whether the plaintiffs are entitled for the relief as prayed for?
6)To what relief?
6. The 1st plaintiff herself got examined as PW1. The 3rd plaintiff was examined as PW2. The 3rd parties to the suit were examined as PWs.3 and 4. Exs.A1 to A11 were marked. Plaintiffs evidence was closed. The 1st defendant himself examined as DW1. 2nd 6 defendant was examined as DW2. Exs.B1 to B4 were marked.
Defendants evidence was closed.
7. Ex.A1 is the agreement of sale dt.12.6.1984 executed by
Chandravadanamma in favour of 1st and 2nd defendants. Ex.A2 is the agreement of sale dt.10.7.1992 executed by defendants 1 and 2 in favour of 1st plaintiff’s husband M. Thirupalu. Ex.A3 is the agreement of sale dt.25.7.1992 executed by defendants 1 and 2 in favour of 1st plaintiff’s husband M. Thirupalu. Ex.A4 is the agreement of sale dt.11.6.1993 executed by 1st defendant in favour of 1st plaintiff’s husband M. Thirupalu. Ex.A5 is the register Gift settlement deed dt.27.3.2010 executed by 1st plaintiff in favour of plaintiffs 2 to 4.
Ex.A6 is the certified copy of No.3 adangal for fasli 1417 and 1418.
Ex.A7 is the true copy of application filed by 1st plaintiff to Tahasildar,
Tada. Ex.A8 is the served copy of order dt.14.5.2010 passed by Joint
Collector, Nellore. Ex.A9 is the certified copy of report submitted by
MRI, Tada. Ex.A10 is the certified copy of report submitted by
Tahasildar, Tada to the District Collector, Nellore. Ex.A11 is the true copy of information given by Asst. Engineer Operation, Tada in respect of HSC 307572.
8. Ex.B1 is the No.3 adangal issued by the Village Revenue
Officer, Kadaluru for fasalies 1416 to 1418. Ex.B2 is the true copy of
No.3 adangal issued by the Village Revenue Officer, Kadaluru for fasalies 1419 to 1422. Ex.B3 is the No.3 adangal issued by the Village
Revenue Officer, Kadaluru for fasalies 1422 to 1423. Ex.B4 is the No.3 adangal issued by the Village Revenue Officer, Kadaluru for fasalies 1423 to 1424.
9. Heard both sides.
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ISSUE NO.1:-
Whether the plaintiffs 2 to 4 are entitled for declaration of right, title over the suit schedule property?
10. PW1 reiterated the contents of the plaint in her chief- examination affidavit. During cross-examination, she deposed “she had personal knowledge that suit schedule site was purchased by 1st defendant and 2nd defendant from Chandravadanamma. Her husband read over the sale letter. Her husband purchased Ac.0.05 cents from the 2nd defendant in the year 1992. At the time of purchase, they received sale letter executed by K. Chandravadanamma under Ex.A1.
After purchase of land by her husband Ac.0.17 cents site was available. 1st defendant alone sold Ac.0.17 cents of land to her husband. One Venkatarathnam was signed as attestor in all the documents. 1st defendant was brought him as a witness on each and every occasion. Venkatarathnam used to advice her on all occasions.
She does not know whether boundaries for Ac.0.06 ½ cents land sold by her husband. Her husband executed document in her favour bequeathing her properties but she filed the said document. Witness says she gave property to her sons. She cannot say any reason for not executing relinquishment deed and executing settlement deed in favour of her sons. She does not know whether she paid amount to
Tahsildar for impounding unregistered sale deed. In the enquiry conducted by the Tahsildar, defendants 1 and 2 stated they did not execute any agreement of sale in favour of her husband. Initially 2nd defendant stated he sold property to her husband during the enquiry made by the Tahsildar later he also changed his version. It is true he approached the District Collector, there also defendants 1 and 2 denied the agreement of sale under Exs.A2 and A4. It is true 8 “Advocate Commissioner visited the suit schedule property and noted physical features. It is true I mentioned in the plaint when I tried to level the land, defendants caused obstruction. Then I filed the suit.
Defendants 1 and 2 filed petition for appointment of Advocate
Commissioner”. She denied the suggestion they are not in possession and enjoyment and defendants are in possession of suit schedule property”.
11. PW2 also reiterated the contents of the plaint in his chief- examination affidavit. During cross-examination, he deposed “at the transaction under Exs.A2 to A4, 1st defendant alone sold Ac.0.14 cents of land. Advocate Commissioner visited the suit schedule property.
Both the defendants handed over Ex.A1 document to his father. He kept hayrick yard and thatering cattle in suit schedule property. He filed present suit for delivery of suit schedule property. He did not file any document to show his father sold certain extent of land to
Yerramuttu Srinivasulu. Suit schedule property is situated in Survey
No.24/1. He admitted transaction under Exs.A1 and A2. He denied defendants are in possession and enjoyment of suit schedule property”.
12. PW3 deposed “he know the suit schedule property and both parties. Since the date of her purchase under Exs.A2 and A4, husband of 1st defendant was in possession and enjoyment of the same. He sold Ac.0.06 ½ cents site to Subramanyam and Y.
Srinivasulu. About 15 years ago M. Thirupalu died. Thereafter the plaintiffs are in possession and enjoyment of the same. Defendants tried to trespass into the suit schedule property. Plaintiffs are the owners. Defendants have no manner of right. Defendants sold about 24 years ago. Since then plaintiffs have been in possession and -9- enjoyment”. PW3 during cross-examination deposed “1st plaintiff is his sister. He does not know one M.C. Venkatarathnam. Except the dispute with regard to suit schedule property there are no other disputes between plaintiff and defendant”.
13. PW4 deposed supporting the version of PW3 and plaintiffs she also deposed the husband of 1st plaintiff purchased suit schedule property from defendants 1 and 2 under agreement of sale. Till his death Tirupalu was in possession and enjoyment of the same. He sold
Ac.0.06 ½ cents to Subramayam and Srinivasulu. He was in possession and enjoyment of remaining Ac.0.22 ½ cents of land. After his death, plaintiffs are in possession and enjoyment of suit schedule property. During cross-examination, she deposed Tirupalu is her only brother. Tirupalu is husband of 1st plaintiff and father of plaintiffs 2 to
4. Defendants purchased Ac.0.29 cents from Chandravadanamma.
She deposed boundaries for Ac.0.29 cents. 1st plaintiff husband purchased the property on three occasions. She cannot say the details, dates etc. She does not know when they sold, how much extent. She denied the suggestion defendants are in possession and plaintiffs are not in possession and enjoyment of suit schedule property.
14. Both parties admitted Kamireddy Rama Raghava Reddy is the original owner. His wife executed agreement of sale in favour of the defendants on 12.7.1984 and the said document is an unregistered agreement of sale with possession stand in the name of 1st defendant for an extent of Ac.0.29 cents in Survey No.24/1. As per Section.52 of
Transfer of property Act any property which is morethan value of
Rs.100/- requires registration. Without registered sale deed, title will not transfer to any other person.
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15. From the averments of the plaint, the contention of the plaintiffs is defendants 1 and 2 purchased the property under unregistered agreement of sale. The document is impounded, but, it does not mean they got title over the suit schedule property.
Unregistered agreement of sale, after impounding, can be used for collateral purpose to prove the possession only. That document is not at all helpful to prove their title. Ex.A2 is the agreement of sale dt.10.7.1992 with regard to purchase of Ac.0.05 cents of land in the name of M. Thirupalu. Ex.A3 is the unregistered agreement of sale dt.25.7.1992 in the name of M. Thirupalu executed by defendants 1 and 2 for an extent of Ac.0.10 cents in Survey No.24/1. Ex.A4 is the another agreement of sale dt.11.6.1993 executed by 1st defendant alone in favour of M. Thirupalu for an extent of Ac.0.14 cents out of
Ac.0.29 cents in Survey No.24/1. The contention of the plaintiffs is by virtue of agreements under Exs.A2 to A4, M. Thirupalu purchased
Ac.0.29 cents of land from the defendants which were purchased by them under Ex.A1. The defendants themselves have no title to convey better title to the M. Thirupalu. No title is transferred in the name of 1st defendant. Hence, he cannot convey better title than he had. After the death of M. Thirupalu, wife of Thirupalu i.e. 1st plaintiff executed the settlement deed in favour of plaintiffs 2 to 4. M. Thirupalu did not get any title over suit schedule property, hence his wife cannot get any title from him. The defendants denied signature on Exs.A2 to A4, then it is the duty of the plaintiffs to examine attestors of the document.
The plaintiffs not examined attestors of the Exs.A2 to A4. One Marri
Joseph and T. Venkatesu are attestors of Exs.A2, A3 documents but they did not examine them to prove the execution of agreement of sale by defendants 1 and 2. Ex.A4 agreement of sale was attested by -11-
Audi Subramanyam and M.C. Venkatarathnam but they did not examine them as witness in this suit. They did not mention any reason for not examining them as witness.
16. When the defendants denied the execution of Exs.A2 to A4 documents, it is the bounden duty of the plaintiffs to prove the execution. Burden lies on them to prove it was executed by defendants 1 and 2, documents stand in the name of M. Thirupalu. M.
Thirupalu died. The plaintiffs are not aware of the transaction. They have no personal knowledge about the transaction. Thus, the plaintiffs failed to prove execution of Exs.A2 to A4 agreement of sale in favour of M. Thirupalu i.e. Father of plaintiffs 2 to 4.
17. The Hon’ble Supreme Court in a decision reported in 2015
Supplementary Civil Court case 187 AP the Supreme Court observed “agreement of sale, admission of signatures merely because signatures is appended on a document. It cannot be concluded that executants has knowledge about its contents unless it is established by the surrounding facts and circumstances by other evidence either direct or circumstantial”.
18. The Hon’ble High Court of Andhra Pradesh in a decision reported in 2012 (3) ALD 327 observed- “an agreement of sale can be marked after payment of stamp duty and penalty, then it can be looked into collateral purpose only. Collateral purpose means document is admissible, contents have to be proved by examining attestor of document”.
19. Punjab and Haryana High Court in a reported decision 2016 ICC 265 observed- “transfer of interest in immovable property cannot passed by admission”.
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20. In view of the above discussion, the plaintiffs failed to prove execution of document by examining attestors of Exs.A2 to A4 and there is no transfer of title of immovable property from
Chandravadanamma in favour of defendants 1 and 2 and there is no title in favour of M. Thirupalu from defendants 1 and 2 and 1st defendant did not get transfer of title from M. Thirupalu as there is no document of title. Hence, the 1st plaintiff had no title to convey the suit schedule property in favour of plaintiffs 2 to 4. The registered gift deed executed by 1st plaintiff in favour of plaintiffs 2 to 4 under Ex.A5 document is not valid and no title is conveyed to plaintiffs 2 to 4.
There will not be any transfer of title in immovable property by admission.
21. In view of the above discussion, the plaintiffs failed to prove their title over suit schedule property. Hence, the plaintiffs 2 to 4 are not entitled for declaration of their right and title over suit schedule property.
ISSUE No.2:-
Whether the plaintiffs are in possession and
enjoyment of the suit schedule property?
22. PW1 reiterated the contents of the plaint in her chief- examination affidavit. During cross-examination, she deposed she had personal knowledge when defendants 1 and 2 purchased the suit schedule property from Chandravadanamma. Her husband purchased
Ac.0.05 cents from defendants 1 and 2 in the year 1992 under Ex.A2.
1st defendant alone sold Ac.0.17 cents of land to her husband. It is true one Venkatesu signed as attestor of the document. But she did not examine the attestor as a witness and not mentioned any reason for not examining. In chief-examination affidavit, she deposed her -13- husband sold Ac.0.06 ½ cents to one M. Subramanyam and Y.
Srinivasulu and they constructed a house in it. During cross- examination, she pleaded ignorance about said transaction. She did not depose about the document executed by her husband in her favour. During cross-examination, she deposed her husband executed document in her favour bequeathing his properties. But she did not file the said document. Non mentioning of Nomen Clature of the document and not filing of the document before this court clearly proves that there is no document of title transferring the properties of
Thirupalu in favour of 1st plaintiff. She deposed in the enquiry made by Thirupalu and police, defendants 1 and 2 took a false plea stating they did not execute any agreement of sale in favour of her husband.
She further deposed initially 2nd defendant stated he sold his property to her husband during the enquiry made by Tahsildar later he changed his version. She admitted she approached District Collector. They also denied the execution of agreement of sale under Exs.A2 and A4.
She admitted Advocate Commissioner visited the suit schedule property and noted physical features. She further admitted when she tried to level the land, defendants 1 and 2 caused obstruction, then she filed suit. Defendants 1 and 2 filed petition for appointment of
Advocate Commissioner. She denied the suggestion she is not having any title over the suit schedule property and she never in possession and enjoyment of the same.
23. PW2 is 3rd plaintiff. He reiterated the contents of the plaint in his chief-examination affidavit. During cross-examination, PW2 denied the possession of defendants and he further submitted
Advocate Commissioner visited the suit schedule property and filed 14 report. He kept hayrick yard and cattle in suit schedule property. He filed the present suit for delivery of suit schedule property.
24. PW3 deposed defendants sold away suit schedule property to the plaintiffs about 25 years ago. Since then, plaintiffs have been in possession and enjoyment of the same as absolute owner. He did not depose he is one of the attestor to the documents. His evidence is not at all helpful to prove the agreement of sale. He denied the suggestion the plaintiffs are not in possession and enjoyment of suit schedule property.
25. PW4 deposed defendants have been in possession and enjoyment of suit schedule property. During cross-examination he deposed plaintiffs purchased the property on three occasions. She cannot say those details, dates etc. She did not know when they sold and how much extent. She does not have personal knowledge about the agreement of sales under Exs.A2 to A4. Their evidence is not helpful to prove the possession of the plaintiff over suit schedule property. Plaintiffs filed I.A. for recovery of suit schedule property.
The plaintiffs filed adangals for fasli 1417 and 1418 issued by
Tahsildar, Tada Mandal. It shows the name of 1st plaintiff as enjoydar for suit schedule property. Plaintiff filed copy of proceedings of the
Joint Collector dt.14.5.2010. The same was marked as Ex.A8. The plaintiff filed true copy of proceedings of Tahsildar, Tada, the same was marked as Ex.A10. In that document, the Tahsildar reported to the Collector stating as per the adangal entries, the name of 1st plaintiff was shown as enjoydar. The defendants denied their signatures on agreement of sale under Exs.A3 and A4. The contents of the adangal and report of the Tahsildar and evidence of PWs.3 and 4 clearly shows and proves as on the date of filing of the suit, the -15- plaintiffs have been in possession and enjoyment of suit schedule property.
ISSUE NO.3:-
Whether the suit is bad without prayer for specific performance of agreement of sale?
26. The counsel for the defendants submitted the plaintiffs have an efacassions remedy. They have to file suit for Specific
Performance of Agreement of Sale. Without availing the remedy, they are not entitled to seek the relief of declaration of title and they are not entitled for perpetual injunction, as per Section.41(H) of Specific
Relief Act. In this case, the defendants 1 and 2 are only having agreement of sale from original vendors. They do not have any title to execute register sale deed in favour of the plaintiffs. Hence, suit for
Specific Performance of Agreement of Sale is not maintainable against defendants 1 and 2. Plaintiff could have filed suit for Specific
Performance of Agreement of Sale and defendant Nos.1, 2 and their vendors without filing suit for Specific Performance of Agreement of sale, suit for declaration of title is not maintainable. Hence, suit is bad without prayer for Specific Performance of Agreement of Sale.
ISSUE NO.4:-
Whether there is no cause of action for the suit?
27. The plaintiffs categorically mentioning about the proceedings of the Joint Collector directing them to approach the Civil
Court for redressal of greiveance. The defendants are also unnecessarily interfering with their possession. Hence, the plaintiffs approached this court. That shows there is a cause of action for filing the suit.
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ISSUE NO.5:-
Whether the plaintiffs are entitled for the relief as prayed for?
28. In view of discussion at issue No.1, the plaintiffs are not entitled for declaration of right and title over suit schedule property.
Whether the plaintiffs are entitled for consequential relief of perpetual injunction?
29. The plaintiffs filed this suit on 16.7.2010. This court granted interim injunction till 27.7.2010. Thereafter the petitioner filed petitions for extension of interim orders. As such interim orders were extended from time to time. PW2 deposed in his cross- examination, he filed suit for recovery of possession. The plaintiffs filed I.A.Nos.350/2010, 351/2010 and 352/2010. Those petitions were filed to punish the defendants for violating injunction orders of this court and to grant police aid and for the relief of recovery of possession. In that petitions, the plaintiff mentioned on 29.8.2010 during nigh time the defendants made illegal trespass and caused violation of temporary injunction order granted in I.A.No.269/2010 and prepared the suit site as if 1st defendant family is residing in that suit site and made arrangements appears to be they have been in possession and enjoyment of the same on that day. The said trespass is illegal and forcibly violating the court orders. As such the defendants have to restore the possession to them. Hence, they filed
I.A.No.350/2010 for recovery of possession, I.A.No.351/2010 to punish the defendants for violating court orders and for police aid.
The contents of three petitions show and prove, the plaintiffs lost their possession, after filing of the suit. The persons who are not in possession and enjoyment of suit schedule property are entitled for -17- perpetual injunction as prayed for. Hence, the plaintiffs are not entitled for consequential relief of perpetual injunction.
Whether the plaintiffs are entitled for recovery of possession, or restoration of possession as prayed in I.A.No.350/2010?
30. In I.A.No.269/2010 interim order was granted and it was extended from time to time, on 16.8.2010 interim order was extended till 17.9.2010 as per the averments in the petition and chief- examination affidavit of the plaintiffs, the defendants illegally trespassed into the suit site on 29.8.2010 night time. That means during the subsistence of temporary injunction order in favour of the petitioners. In the counter the defendants denied the contents of the petition and submitted he is in possession and enjoyment of suit schedule property even prior to filing of the suit and prior obtaining temporary injunction against him and others. Police had full knowledge about the same. Hence, they did not take any action. He prays to read Advocate Commissioner’s report as part of his counter and prays to dispose of the main petition in I.A.No.269/2010 on merits to find out who is in actual possession as on the date of filing of the suit schedule property.
31. The defendants 1 and 2 are admitting their signatures on
Ex.A2 agreement of sale. They are admitting Ex.A1 agreement of sale which stands in the name of 1st defendant. They are admitting Ex.A1 is in possession of the plaintiff. DWs.1 and 2 on one occasion admitted their signatures on EXs.A3 and A4 agreement of sale, again they changed the version and denied the execution of Exs.A3 and A4 agreement of sale in favour of husband of 1st plaintiff. If really they did not execute agreement of sale for entire extent i.e. Ac.0.29 cents, they will not hand over the original agreement of sale to plaintiffs, it is 18 filed and marked as Ex.A1 on behalf of the plaintiffs. Plaintiffs filed original agreement of sale stand in the name of 1st defendant shows the said document stand in possession and enjoyment of the plaintiffs.
The contents of Exs.A2 to A4 show delivery of possession to husband of 1st plaintiff. Though they are not documents of title, they can be used for collateral purpose to prove possession of the plaintiffs over suit schedule property. The documents under Exs.A2 to A4 show and prove the possession of the plaintiffs/ husband of 1st plaintiff over suit schedule property. Their contention is they inherited the same from
M. Thirupalu. The entries in adangal and report of Tahsildar with regard to entries in adangals show and prove enjoyment of plaintiffs over suit schedule property. The defendants are admitting their signature, execution, handing over possession under Ex.A2 because already it was sold to 3rd parties by M. Thirupalu i.e. husband of 1st plaintiff. 3rd parties have been in possession and enjoyment of the same by raising house. It is not possible for them to get their eviction and recovery of possession. Hence, they are simply admitting the contents of Ex.A2 agreement of sale and its execution and their signatures. But the property under Exs.A3 and A4 is a vacant site in order to grab the property, they are denying the execution, consideration, delivery of possession in favour of M. Thirupalu i.e.
husband of 1st plaintiff. Evidence of PWs.3 and 4 is supporting the evidence of plaintiff with regard to their possession over suit schedule property.
32. Except the evidence of defendants, there is no other evidence to prove their possession over suit schedule property. The defendants filed adangal copy issued by VRO in the year 2009. The same was marked as Ex.B1. Ex.B2 is adangal for fasli 1419 issued by -19-
VRO. The documents Ex.B3 is the adangal issued by VRO for fasli 1422. Ex.B4 is the adangal issued by the VRO for fasli 1423. The VRO is not competent to issue adangals. Only MRO is competent to issue adangals. Exs.B2 to B4 are not certified copies. The VRO not mentioned whether those are certified copies or true copies. They simply signed, affixed the signature and gave it to the defendants and those documents are not admissible in evidence. Thus, the defendants failed to prove their possession over suit schedule property as on the date of filing of the suit.
33. The defendants claiming possession basing on the service connection number mentioned by the Advocate Commissioner. The plaintiffs approached the electricity department and obtained the letter from the electricity department. In that letter, they informed there is no such electricity connection. That clearly show and falsify the version of the defendants. Defendants are relying on the Advocate
Commissioners report. The Advocate Commissioner mentioned there is a temporary sala and bathroom with a gunny bag roof. That shows it is only made in order to claim possession over suit schedule property. Those are the sala is very small and not fit for residence and the bathroom is made with gunny bags. That shows it was made temporarily. They created the sala and bathroom in order to claim possession over the suit schedule property just prior to visit of
Advocate Commissioner. Advocate Commissioner Report is not helpful to prove possession of defendants over suit schedule property.
34. The counsel for the plaintiffs submitted during the pendency of the ad-interim injunction granted by this Hon’ble Court, the defendants forcibly enter into the suit schedule property and occupied the suit schedule property. The suit is filed in the year 2010.
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The ad-interim injunction was granted. The plaintiffs did not take any steps to get interim application for temporary injunction decided on merits. They filed I.A.No.351/2010 and I.A.No.352/2010 to punish the defendants for violation of injunction orders and for police aid. Though they filed those two applications in the year 2010, they did not proceed with those applications and those I.As. were not decided on merits. If really the plaintiffs have bonafides, they could have get ready to dispose of under Order 39 Rule 1 and 2 of CPC petition and
I.A.No.351/2010 and 352/2010 filed to punish the defendants for violation of injunction order and for police aid, on merits. But they did not do so and they kept quiet till the year 2016. They commenced the trial in the year 2016. That shows there are no bonafides on their part. They did not examine any persons to prove violation of injunction order. In view of the above discussion, the plaintiffs are not entitled for the relief as prayed for.
35. The petitioner filed I.A.No.350/2010 under Order 39 Rule 1 and 2 and Section.159 CPC for evicting of the defendants and to restore the possession and enjoyment of suit schedule property to the petitioners. The contention of the plaintiffs is this Hon’ble Court granted ad-interim injunction in their favour and extended from time to time. During the subsistence of ad-interim injunction, the defendants occupied the suit schedule property. Hence, they are entitled for restoration of possession, the plaintiffs failed to establish their title over suit schedule property. They did not have any title over suit schedule property. The duty of the plaintiff is to sought for
Specific Performance of Agreement of Sale under Exs.A3 and A4 against the defendants and their vendors. The plaintiffs without taking any steps for Specific Performance of Agreement of Sale against -21- defendants 1 and 2 and their vendors, they simply filed suit for declaration of title without any document of title. It is the bounden duty of the plaintiff to prove execution of agreement of sale, its contents and delivery of possession. The case of the defendants is denial of agreement of sale and its execution. In evidence on one occasion they are admitting their signature and on another occasion they are denying their signatures on Exs.A3 and A4. When the defendants gave two different versions with regard to one point, then plaintiffs could have examined the attestors of the document to prove their case. They could have examined the persons who were present when the defendants handed over possession to plaintiffs 2 to 4’s father. The plaintiffs not examined attestors, not examined the persons who were present at the time of delivery of possession to plaintiffs’ father, they simply relying on entries in adangals. In order to obtain recovery of possession, they have to establish their right to continue in the possession. If they are able to prove contents of
Exs.A3, A4, then there will be a prima facie case in their favour for recovery of possession from defendants 1 and 2. Without proving agreement of sale in favour of plaintiffs, without filing suit for Specific
Performance of Agreement of Sale, they are not entitled for recovery of possession.
ISSUE NO.6:-
To what relief?
36. In the result, suit is dismissed without costs.
I.A.Nos.350/2010, 351/2010 and 352/2010 are dismissed without costs.
Dictated to the Stenographer, transcribed by her, corrected and
pronounced by me in the Open Court, this the 24th day of April, 2017.
Principal Junior Civil Judge,
SULLURPET.
22
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF : FOR DEFENDANTS: PW-1 : M. Chengamma DW-1 : Nimmala Polaiah
PW-2 : M. Rambabu DW-2 : N. Gunnaiah
PW-3 : B. Thirupolaiah
PW-4 : Marri Chengamma
DOCUMENTS MARKED
FOR PLAINTIFF :
Ex.A1 is the agreement of sale dt.12.6.1984 executed by Chandravadanamma in favour of 1st and 2nd defendants.
Ex.A2 is the agreement of sale dt.10.7.1992 executed by defendants 1 and 2 in favour of 1st plaintiff’s husband M. Thirupalu.
Ex.A3 is the agreement of sale dt.25.7.1992 executed by defendants 1 and 2 in favour of 1st plaintiff’s husband M. Thirupalu.
Ex.A4 is the agreement of sale dt.11.6.1993 executed by 1st defendant in favour of 1st plaintiff’s husband M. Thirupalu.
Ex.A5 is the register Gift settlement deed dt.27.3.2010 executed by 1st plaintiff in favour of plaintiffs 2 to 4.
Ex.A6 is the certified copy of No.3 adangal for fasli 1417 and 1418.
Ex.A7 is the true copy of application filed by 1st plaintiff to Tahasildar, Tada.
Ex.A8 is the served copy of order dt.14.5.2010 passed by Joint Collector, Nellore.
Ex.A9 is the certified copy of report submitted by MRI, Tada.
Ex.A10 is the certified copy of report submitted by Tahasildar, Tada to the District Collector, Nellore.
Ex.A11 is the true copy of information given by Asst. Engineer Operation, Tada in respect of HSC 307572.
FOR DEFENDANTS :
Ex.B1 is the No.3 adangal issued by the Village Revenue Officer, Kadaluru for fasalies 1416 to 1418.
Ex.B2 is the true copy of No.3 adangal issued by the Village Revenue Officer, Kadaluru for fasalies 1419 to 1422.
Ex.B3 is the No.3 adangal issued by the Village Revenue Officer, Kadaluru for fasalies 1422 to 1423.
Ex.B4 is the No.3 adangal issued by the Village Revenue Officer, Kadaluru for fasalies 1423 to 1424.
Principal Junior Civil Judge,
SULLURUPET.
-23-
IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE : SULLURPET
Monday, this the 24th day of April, 2017.
Present : Smt. T.Haritha,
Principal Junior Civil Judge, Sullurpet
ORIGINAL SUIT No.122 OF 2010
1. Muthukuru Chengamma, W/o late Tirupalu, Hindu, agriculturist, Aged about 60 years;
2. Muthukuru Ramesh, S/o late Tirupalu, Hindu, agriculturist, Aged about 30 years;
3. Muthukuru Rambabu, S/o late Tirupalu, Hindu, agriculturist, Aged 27 years;
4. Muthukuru Nagaraju, S/o late Tirupalu, Hindu, agriculturist, Aged 20 years; (All are r/o Pulivendra Harijanawada, Akkampeta Post, Tada Mandal, SPSR Nellore District.) … Plaintiffs
Vs.
1. Nimmala Polaiah, S/o late Guravaiah, Hindu, agriculturist, Aged 70 years;
2. Nimmala Gunnaiah, S/o late Guravaiah, Hindu, agriculturist, Aged 65 years;
3. Marri Jakkaraiah, S/o late Chengaiah, Hindu, agriculturist, aged 38 years;
4. Marri Jayamma, W/o Marri jakkaraiah, D/o Nimmala Polaiah, Hindu, agriculturist, aged 36 years;
5. B. Kumari (died & abated) … Defendants
The suit is filed under Section.26 Order VII Rule 1 of CPC for declaration to declare the title of the plaintiffs 2 to 4 over suit schedule property and to grant consequential relief of perpetual injunction restraining the defendants, their men and followers and agents from interfering with the plaintiffs’ peaceful possession and enjoyment of plaint schedule property and for costs.
Plaint presented on: 16.7.2010;
The relief of declaration and consequential injunction is valued at Rs.54,450/- which is the half of the market value of the suit schedule property being Rs.1,08,900/- and a Court fee of Rs.2,546/- is paid thereon under Section.24 (B) of A.P. Court Fee and suits valuation Act 1956. *** 24
This suit coming on 28.3.2017 for final hearing before me, in the presence of Sri K. Dharma Prasad - Advocate for the plaintiff, and of Sri B. Venugopal Reddy - Advocate for the defendants Nos.1, 3, 4 and Sri V. Muni Krishna Reddy – Advocate for the 2 nd defendant and the case against the 5 th defendant was abated as she died and the matter having stood over for consideration to this day, and this Court DOTH ORDER AND DECREE—
1. that the suit be and the same is hereby dismissed;
2. that the I.A.Nos.350/2010, 351/2010 and 352/2010 be and the same are hereby dismissed;
3. that the plaintiffs do bear their own costs of Rs.3,658/- (Rupees Three Thousand Six Hundred and Fifty Eight Only) towards the costs of the suit and the 1st defendant do bear his own costs of Rs.4,009/- (Rupees Four Thousand and Nine Only) and the 2nd defendant do bear his own costs of Rs.5,447/- (Rupees Five Thousand Four Hundred and Forty Seven Only)and the defendants 3 and 4 do bear their own costs of Rs.Nil/- (Costs memo not filed).
Given under my hand and the seal of the Court, this the 24th day of April, 2017.
Prl. Junior Civil Judge,
SULLURUPET
PARTICULARS OF COSTS
For Plaintiffs For 1 st For 2 nd For Rs. Defendant defendant defendants Rs. 3 and 4 Stamp on Plaint 2.546-00 -- -- Stamp for Power 2-00 2-00 2-00 Commissioner’s fee -- 1,000-00 -- Process fee 350-00 -- -- Costs for obtaining -- 5-00 -- Costs memo Certified copies not filed -- 2-00 -- Petitions
Typing Charges 50-00 -- -- (as claimed) Advocate Fee : 3,000-00 3,000-00 5,445-00
TOTAL 3,658-00 4,009-00 5,447-00
Prl. Junior Civil Judge,
SULLURPET
Schedule filed on behalf of the Plaintiffs
SPSR Nellore District – Tada Revenue Mandal – Sullurpet Sub-Registration –
Konduru Grama Panchayat – Pulivendra Village – S.No.24/1, Extent Ac.0.22 ½ cents out of Ac.1.59 cents dry land within the following boundaries:
-25-
East : Street
South : Site and houses of Muthukuru Subramanyam to some extent and Yerramuthu Sreenivasulu and Nimmala Pedda Subbaiah and others lands.
West : Land of Nimmala Chinna Gunnaiah and Audeiah.
North : Lands of Irakam Nagabhushanam, Ponna Nagaiah, Vallam
Venkatesu.
Valued at Rs.1,08,000/-
Half of the Market Value Rs.54,450/-
Prl. Junior Civil Judge,
SULLURPET
Valuation of immovable property filed on behalf of the plaintiff under
Section.10 of the Andhra Pradesh Court Fee and Suits Valuation Act,
1956.
1. Serial number of item of : Only item immovable property.
2. Registration District and Sub-: Nellore District and Registration District Sullurpet Sub-Registration
3. Mandal and village where the : Tada Mandal, Pulivendra Village property is sitaute
4. Survey Number : 24/1 Sub-Divisiona l Number
5. Extent : Ac.0.22 ½ cents
6. Class of lands : Dry Wet and Dry
7. Rental alue of the land wet or dry : Rs.10,000/-
8. Present Market value : Rs.1,08,900/-
9. Value for purposes of Court Fee & : The relief of Declaration of Title and Jurisdiction with the provision of consequential injunction is valued at Law under which it is valued Rs.54,450/- being ½ of the market value of Rs.1,08,900/- and a Court fee of Rs.2,546/- is paid thereon u/s 24 (b) of A.P.C.F. and S.V. Act, 1956.
10. Remarks : --- //True Copy//
Principal Junior Civil Judge,
Sullurpet.
26