Smt T.Haritha

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: ONGOLE

Present: Smt T. Haritha,

Prl. Junior Civil Judge, Ongole

Saturday, the Thirtieth (30th) Day of May, 2015

ORIGINAL SUIT NO.935/2008

AND

ORIGINAL SUIT NO.444/2010

O.S.NO.935/2008:

BETWEEN :

Chennareddy Subbamma, W/o. Sreeramulu, Hindu, aged 68 years, Housewife and landlord, Resident of Chavatapalem village, N.G. Padu Mandal, Prakasam District … Plaintiff

And

1. Katragadda Seshaiah (Died)

2. Katragadda Venkateswarlu, S/o. Venkata Subbaiah, Hindu, aged 52 years, Employee, Resident of Chavatapalem village, N.G. Padu Mandal, Prakasam District

3. Katragadda Seetharavamma, W/o. Late Seshaiah, Hindu, aged 50 years, Housewife, Resident of Chavatapalem village, N.G. Padu Mandal, Prakasam District

4. Katragadda Pratap Kumar, S/o. Late Seshaiah, Hindu, aged 31 years, cultivation, Resident of Chavatapalem village, N.G. Padu Mandal, Prakasam District

Amended as per Orders in I.A.No.796/2012, dt.25-04-2012 … Defendants

A N D

O.S.NO.444/2010:

BETWEEN :

1. Katragadda Seshaiah (Died)

2. Katragadda Venkateswarlu, S/o. Venkata Subbaiah, Hindu, aged 53 years, B.S.N.L. Employee, Resident of Chavatapalem village, N.G. Padu Mandal, Prakasam District

3. Katragadda Seetharavamma, W/o. Late Seshaiah, Hindu, aged 50 years, Housewife, Resident of Chavatapalem village, N.G. Padu Mandal, Prakasam District 2

4. Katragadda Pratap Kumar, S/o. Late Seshaiah, Hindu, aged 31 years, Lands, cultivation, Resident of Chavatapalem village, N.G. Padu Mandal, Prakasam District (Added as per Orders in I.A.No.29/2011, dt.21-10-2011) … Plaintiffs

And

Chennareddy Subbamma, W/o. Sreeramulu, Hindu, aged 64 years, Housewife, R/o. Chavatapalem village, N.G. Padu Mandal, Prakasam District … Defendant

These suits coming on 15-04-2015 before me for final hearing in the presence of Sri C. Venkata Rao, Advocate for the Plaintiff in

O.S.No.935/2008 and Advocate for the Defendant in O.S.No.444/2010

and of Sri Parvathareddy Venkateswara Rao, Advocate for the Plaintiffs in

O.S.No.444/2010 and Advocate for the Defendants 2 to 4 in

O.S.No.935/2008, 1st defendant died, upon hearing the arguments and

having stood over for consideration till this day, this Court delivered the following:

// COMMON JUDGMENT //

O.S.No.935/2008:

1.The suit is filed for perpetual injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the plaintiff in the plaint schedule property and its crops therein and for costs.

2.The brief averments of the plaint reads as follows:

The Plaintiff is the absolute owner of the property. The Plaintiff and her sister Veeragandham Rangamma are only the legal heirs of her father late Katragadda Sreeramulu. After the demise of Sreeramulu, the plaintiff and her sister have partitioned their father ancestral properties including the plaint schedule property and she obtained pattadar passbook and title deed for respective extents. There is a dispute in between the plaintiff, plaintiff's father and defendants' father. The defendants' father and defendants, who belongs to opposite group developed hatred and bore 3 grudge with regard to the joint varanda in between their lands. Previously the plaintiff and her father, her sister filed a suit in O.S.No.291/1969 on the file of District Munsif Court, Ongole, against the father of the defendants by name Katragadda Venkata Subbaiah and others with regard to varava and the same was decreed in favour of the plaintiff and her father on 02-12-1977. The defendants father preferred appeal in

A.S.No.163/1978 on the file of Addl. District Judge's Court, Ongole, during

the pendency of appeal the defendants father died and the defendants are brought on record. The appeal was dismissed on 27-01-1984.

Subsequently the E.P.No.168/1984 was filed for execution of the decree and the E.P. was compromised on payment of Rs.800/- and on agreement to dig the varava once in every four years in the presence of Court Amin and Village elders on 24-08-1986. The Defendants bore grudge over the plaintiff and proclaiming since one week in the village that they would interfere with the peaceful possession and enjoyment of the plaint schedule property and its standing crops, the plaintiff is a lady and she is unable to resist the unlawful acts of the defendants. Hence the suit.

3.The 2nd Defendant filed written statement. 1st Defendant filed adoption memo adopting the written statement of 2nd defendant. The brief averments of the written statement are that:

They denied the contents of the plaint and admitted, the plaintiff having Ac.1-94 cents of land and obtained pattadar passbook and title deed. Likewise the defendants are having Ac.0-20 cents i.e. Ac.0-10 cents each in same survey number and obtained pattadar passbook and title deed in their favour along with other properties for respective extents. The said passbooks were already filed as documents 1 and 2.

He admitted about O.S.No.291/1969, A.S.No.163/2008 and the 4 compromise in between the parties after filing of E.P.No.168/1984 with regard to varava and sharing of expenses etc. He further submitted, they never tried to interfere with peaceful possession and enjoyment of the plaintiff in suit schedule property as mentioned in the plaint. The defendants are in possession and enjoyment of the properties of Ac.0-20 cents without any interruption from anybody. The suit schedule filed by the plaintiff is not correct. Adjacent to the suit schedule property on southern side boundary the defendants are having their land Ac.0-20 cents, but the plaintiff wrongly mentioned in the schedule on southern side Nadipineni Rangamma and Dodda Suryanarayana, who are the southern side boundary holders to the land of this defendant. Due to heavy rains, the said Varava is dislocated and expand all sides. Due to that this defendant requested the plaintiff to measure the lands and the varava and fix the actual boundaries. He paid challan to the Mandal

Officer, N.G. Padu Mandal for measurements by the Surveyor. The defendants raised Jonna crop in their Ac.0-20 cents. The plaintiff raised tobacco crop in the suit schedule property. The Hon'ble Court appointed an Advocate/commissioner, he executed warrant and measured the lands of both parties and fixed boundary stones with the assistance of Surveyor and Deputy Inspector of Surveyor and filed his report before this Court.

According to the Commissioner's report, the land of defendants located by fixing the boundary stones. The fact is reveal that, the defendant is having land on southern side boundary of the suit schedule land. But the plaintiff cut away the Jonna crop of defendants after executing the warrant. The said Commissioner report may be read as part and parcel of written statement of defendants. When the land of plaintiff is located where some portion of land is in the possession and enjoyment of 5 defendants, the plaintiff has no right to seek the relief of injunction. She has to file suit for possession and declaration as clearly confirmed that some portion of the land is in possession of defendants. The suit is not maintainable and liable to be dismissed. Without seeking possession of land, the plaintiff has no right to seek the relief of injunction against the defendants. Prays to dismiss the suit.

4.The following issues are settled for trial :

1.Whether the plaintiff has been in peaceful possession and enjoyment of the suit schedule property as on the date of filing of the suit?

2.Whether the defendants attempted to interfere with plaintiff's possession and enjoyment of suit schedule property, if so whether such interference is warranted?

3.Whether the plaintiff is entitled for permanent injunction as prayed for?

4.To what relief?

O.S.No.444/2010:

Suit is filed for permanent injunction restraining the defendant and her men from interfering with the peaceful possession and enjoyment of the plaintiffs in plaint schedule property and for costs.

5.The brief averments of the plaint reads as follows:

The schedule property is the ancestral property of plaintiffs 1 and 2 and they are enjoying the same Ac.0-20 cents jointly. The defendant is having Ac.1-94 cents in S.No.195 and obtained passbook and title deed.

Likewise, the plaintiffs 1 and 2 are also obtained passooks and title deeds in their favour along with other properties and Ac.0-20 cents jointly. The defendant filed a suit in O.S.No.935/2008 on the file of P.J.C.J. Court, 6

Ongole by misrepresenting and misleading the Court and the said suit is pending. The defendant obtained temporary injunction for Ac.1-94 cents only in I.A.No.3000/08. The commissioner was appointed and he measured the land with the assistance of the Surveyor. According to the commissioner's report, the plaintiffs are in possession of the land by raising Jowar crop in Ac.0-20 cents of land. The defendant and her family members are proclaiming in the village since one week that they will interfere with the plaintiffs in the schedule property. If the words of the defendant are put into action, the plaintiffs unable to resist the illegal acts of the defendant. Hence the suit.

During pendency of the suit, the 1st plaintiff died. Plaintiffs 3 and 4 are added as his L.Rs.

6.The Defendant filed written statement. The brief averments of the written statement are that:

She denied the contents of the plaint and once again she reiterated the dispute in O.S.No.291/1969, A.S.No.163/1978, E.P.No.168/1984 and compromise with regard to varava and sharing of expenses for varava.

She further submitted, she is having Ac.1-94 cents of land in S.No.194, obtained pattadar passbook and title deed. The plaintiffs 1 and 2 having

Ac.0-20 cents each Ac.0-10 cents of land in same survey number and obtained pattadar passbook and title deeds in their favour along with other properties for their respective extents. She admitted about filing of

O.S.No.935/2008, but denied the contents of misrepresentation,

suppressing the material facts, misleading the Court in obtaining temporary injunction. She denied the remaining contents of the plaint.

The defendant is the absolute owner of the property in S.No.195 to an extent of Ac.1-94 cents out of Ac.3-88 cents of land situated at Raparla 7 village. Katragadda Sreeramulu had two daughters by name Chennareddy

Subbamma-defendant and Veeragandham Rangamma. After demise of

Katragadda Sreeramulu, the defendant and her sister have partitioned their ancestral properties including Ac.1-94 cents. The said Ac.1-94 cents including other properties fell to the share of defendant and obtained pattadar passbook and title deed for their respective extents. The plaint schedule is not correct. The alleged extent of Ac.1-94 cents having well formed ridges on all four sides. The said extent of Ac.1-94 cents on its southern side is Nadipineni Ragamma etc. The Plaintiffs are having large following, due to that they are causing obstruction to defendant for enjoyment of Ac.1-94 cents. Hence she filed O.S.No.935/2008 and obtained temporary injunction. Pattadar passbook and title deeds stands in her name. There is no inch of land varava on its southern side. Due to disputes in between the families of both, the plaintiffs bore grudge agianst the defendant and causing obstruction for enjoyment of Ac.1-94 cents. On 20-01-1904 Edara Venkata Rangam executed a Gift deed in favour of

Katragadda Subbamma, W/o. Yathi Rajulu @ Yarraiah in respect of

S.No.195 with an extent of Ac.1-94 cents. One Nadipineni Ankaiah purchased with an extent of Ac.1-94 cents in S.No.195 dt.27-12-1923.

Northern side boundary owner is Katragadda Subbamma. The defendant obtained F.M.B. copy. In that total extent is mentioned as Ac.3-88 cents in

S.No.195. R.S.R. copy stands in the name of Edara Venkata Rangam.

Edara Venkata Rangam is the junior paternal uncle of Katragadda

Subbamma. 1-A stands in the name of Katragadda Audemma.

Katragadda Audemma is the daughter-in-law of Katragadda Subbamma.

By virtue of inheritance, the defendant is the absolute owner of the property with an extent of Ac.1-94 cents in S.No.195. Dodda Subbaiah executed a sale deed dt.24-05-1954 in favour of Edara Atchaiah. The said 8 sale deed reveals that, the northern owner is Katragadda Sreeramulu. The

Commissioner report shall not be taken into consideration to decide the right and title. The plaintiffs have no right and title over the extent in

S.No.195. On the basis of title deed and pattadar passbook, the plaintiffs are claiming as owners of the property. Mere entries in revenue accounts does not confer any right and title. The plaint schedule property is the part and parcel of Ac.1-94 cents in S.No.195. That belongs to the defendant. There is no separate extent in the said S.No.195. To that effect, the defendant filed R.C.D.No.2102/2009 before Revenue Divisional

Officer, Ongole for cancellation of pattadar passbook and title deed and the same is pending for disposal. The plaintiffs suppressed the fact and filed this suit. The suit is not maintainable. There is no cause of action against the defendant. Prays to dismiss the suit.

7.The following issues are settled for trial:

1. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for?

2. To what relief?

8.As per the joint memo filed by both parties to club both the suits and the same is allowed on 18-07-2013, both the suits were clubbed together and evidence was recorded in O.S.No.935/2008. For the skae of convenience, the parties are referred as plaintiff and defendants as per

O.S.No.935/2008.

9.During the course of trial, the Plaintiff herself got examined as

PW.1. One third party to the suit by name Katragadda Audi Narayana was examined as PW-2. Deputy Inspector of Survey, R.D.O. Office was examined as PW-3. Exs.A1 to A11 are marked. Ex.A1 is title deed stands 9 in the name of Plaintiff, Ex.A2 is pattadar passbook stands in the name of plaintiff, Ex.A3 is certified copy of judgment in O.S.No.291/1969 on the file of District Munsif Court, Ongole, Ex.A4 is certified copy of Judgment in

A.S.No.163/1978 on the file of Addl. District Court, Ongole, Ex.A5 is

registration extract of Settlement deed dt.20-01-1904 executed by Edara

Venkata Rangam in favour of Katragadda Subbamma, Ex.A6 is registration extract of sale deed dt.27-12-1923 executed by Edara

Sreeramulu and Madala Rama Seethamma in favour of Nadipineni

Ankaiah, Ex.A7 is attested copy of F.M.B. relating to Field No.195 of

Raparla village, Ex.A8 is attested copy of Re-survey and re-settlement register of Raparla village, dt.31-03-2009, Ex.A9 is attested copy of 1-A

Namuna issued by the Deputy Tahsildar, N.G. Padu for S.No.195 of

Raparla village, Ex.A10 is registration extract of sale deed dt.24-05-1954 executed by Edara Atchaiah and Edara Mahalakshamma in favour of

Dodda Subbaiah and Ex.A11 is copy of 10-1 account for S.No.195 of

Raparla village issued by the Village Revenue Officer, Raparla. Plaintiff's evidence is closed.

After closure of the plaintiff side evidence, the 2nd Defendant himself got examined as DW-1. One Chennareddy Suryanarayana was examined as DW-2. Exs.B1 to B4 are marked. Ex.B1 is pattadar passbook stands in the name of 1st defendant, Ex.B2 is pattadar passbook stands in the name of 2nd defendant, Ex.B3 is certified copy of the sketch of Field No.195 and Ex.B4 is certified copy of Commissioner report with plan in I.A.No.164/2009 in O.S.No.935/2008. Defendants evidence was closed.

10.Heard both sides.

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11.Issue No.1 in O.S.No.935/2008 :

Whether the plaintiff has been in peaceful possession and

enjoyment of the suit schedule property as on the date of filing of

the suit?

PW-1 deposed, she is absolute owner of suit schedule property having inherited the same from her father Katragadda Sreeramulu in the partition between herself and her sister. The plaintiff in her chief examination affidavit deposed, she obtained pattadar passbook and title deed for respective extents and has been enjoying the same with absolute rights by raising crops. The plaintiff mentioned in the plaint and deposed in chief examination affidavit, she raised tobacco plants and Jonna crop in plaint schedule property and they are ready to harvest. During cross- examination, she deposed, she did not say Jonna crop was raised in

Ac.0.20 cents of land. She mentioned Jonna crop was raised towards southern side of plaint schedule property. She had documentary evidence to show, she had Ac.1-94 cents of land.

PW-1 during cross-examination deposed, the defendants filed pattadar passbooks. She further deposed, “it is true as on the date of filing of the suit, there was a tobacco crop in my land. Jonna crop was not raised in Ac.0-20 cents of land which is situated towards south of suit schedule property. It is true Surveyor measured the property,

Commissioner visited the suit locality and filed report along with sketch.

It is true I had Ac.1-94 cents only. It is true after measurement boundaries were fixed for Ac.1-94 cents and Ac.0-20 cents of land. I am concerned with only Ac.1-94 cents of land and I am no way concerned with other properties. I cannot say how I got Ex.A7 document.” 11

12.PW-2 is neighbouring land owner. He supported the version of the plaintiff. He deposed, the total extent of S.No.195 is Ac.3-88 cents. He do not know the boundaries. He do not know the extent of suit schedule property. He do not know about visit and measurement of suit schedule property. He do not know how many persons have land between his land and suit schedule property. 1st defendant not cultivating the land situated in between suit schedule property and Nadipineni Ragamma in an extent of Ac.0-20 cents of land. He do not know the defendant obtained injunction order with regard to Ac.0-20 cents of land against the plaintiff.

The plaintiff had Ac.1-94 cents only. He do not know the survey number of suit schedule property.

The evidence of PW-2 shows, he do not know anything about suit schedule property, except the plaintiff has been in possession and enjoyment of Ac.1-94 cents.

13.PW-3 Deputy Inspector of Survey deposed along with Deputy

Inspector of Surveyor, he measured the suit schedule property. He assisted at that time and measured the property and sketch was prepared by Deputy Inspector of Surveyor. The then Deputy Inspector of Surveyor was expired. The Deputy Inspector of Surveyor showed the Ac.1-94 cents and Ac.0-20 cents and Ac.1-94 cents in his sketch prepared by him. For the purpose of confirming the boundaries for Field No.195 of Raparla

Village, they measured the surrounding survey number lands. The Deputy

Inspector of Surveyor fixed Ac.1-94 cents towards north of Field No.195 as per instructions of Advocate-commissioner. Northern side of Field

No.195, there is a canal. “It is true after identifying Ac.1-94 cents,

Ac.0.20 cents was identified. 5 per cent per acre will be added or deleted 12 after measuring the entire F.M.B. If there is any discrepancy or variation with F.M.B. available in our record.” He filed attested copy of original

F.M.B. Under observation of Deputy Inspector of Surveyor being Mandal

Surveyor, V.R.O. measured the entire land. He measured and fixed the outline of Field No.195 only.

14.The Plaintiff filed pattadar passbook and title deed to prove her possession. The counsel for the plaintiff submitted, as per F.M.B. under

Ex.A7, the total extent of land in S.No.195 is Ac.3-88 cents only. The boundaries mentioned in Exs.A5, A6 and A10 shows, the northern boundary is mentioned as the land belongs to Katragadda Sreeramulu and

Chennareddy Subbamma i.e. the plaintiff, her father etc. There is no inch of land to the defendants towards south of plaintiff's property. He further argued, as per Ex.A8 attested copy of re-survey and re-settlement reigster of Raparla village also, the total extent in S.No.195 is only

Ac.3.88 cents. But the Deputy Inspector of Surveyor measured the property and found Ac.4-08 cents in that survey number. PW-3, PW-1 and DW-1 categorically admitted, there are ridges on all four sides of

Ac.1-94 cents. The plaintiff has been enjoying the said property since times immemorial since the time of her forefathers. Thus, the plaintiff is able to establish her right, possession and enjoyment over the suit schedule property as on the date of filing of the suit.

15.Issue No.2 in O.S.No.935/2008:

Whether the defendants attempted to interfere with plaintiff's

possession and enjoyment of suit schedule property, if so whether

such interference is warranted?

13

PW-1 categorically deposed in her chief examination affidavit and plaint that the defendants are proclaiming in the village since one week that they would interfere with possession and enjoyment of the plaint schedule property, its standing crop without any right. If the words of the defendants are put into action, she cannot resist the unlawful acts fo the defendants without help of this Court. She is a lady and aged woman.

The defendants are having large following and no respect to law and

Order. Hence she constrained to file this suit. Thus, the plaintiff is able to establish the defendants made attempt to interfere with plaintiff's possession and enjoyment of the suit schedule property. The Defendants have no right to interfere with possession and enjoyment of the suit schedule property. There are ridges on four sides of plaintiff's property.

The Defendants have no right to enter into the suit schedule property of the plaintiff. Hence their interference is unwarranted.

16.Issue No.3 in O.S.No.935/2008:

Whether the plaintiff is entitled for permanent injunction as

prayed for?

The Plaintiff is able to establish her possession and enjoyment by filing pattadar passbook and title deed. The defendant not claimed the property in Ac.1-94 cents of plaintiff. He is claiming he had land towards south of suit schedule property and he had got right over the same. He has no right to interfere with Ac.1-94 cents of land in S.No.195.

The counsel for the plaintiff submitted, as per F.M.B., R.S.R. and earlier Regd. Sale deeds of the year from 1902 to 1954, the total extent is only Ac.3-88 cents. But the Deputy Inspector of Surveyor measured and found Ac.4-08 cents. How the extent is enhanced was not explained. The 14 person who gave the sketch was died and the person who assisted at the time of measurement was not able to explain how the Deputy Inspector of

Surveyor showed Ac.4-08 cents of land in S.No.195. The documents relied on by the plaintiff are pertains to the years from 1905 to 1954 and there is no document in between 1954 to 2008. Hence basing on those documents, it cannot be said that the defendants have no land towards south of plaintiff's suit schedule property. This is only a suit for permanent injunction. The plaintiff has to establish prima facie case of possession only. If she claims the defendants have no right and have no site towards south of her Ac.1-94 cents, she has to file separate suit for declaration. In this suit, that point cannot be decided. Plaintiff not taken steps to prove the pattadar passbooks of defendants are fake or created one. There is no allegation also.

In view of the above discussion, the plaintiff is entitled for permanent injunction as prayed for.

17.Issue No.1 in O.S.No.444/2010:

Whether the plaintiffs are entitled for the relief of permanent

injunction as prayed for?

DW-1 reiterated the contents of his plaint in his chief examination affidavit. He deposed in cross-examination, total extent in S.No.195 is

Ac.4-08 cents. He pleaded ignorance about dismissal of

A.S.No.163/1978. He admitted E.P. and compromise. He deposed, there

are ridges on four sides to an extent of Ac.1-94 cents. Her grandfather sold an extent of Ac.1-94 cents to maternal grandmother of Katragadda

Sreeramulu. Surveyor measured the property as per Field Measurement

Book. He do not know about R.S.R. As per R.S.R., total extent in 15

S.No.195 is Ac.3-88 cents under Ex.A8. As per Field Map, the total extent in S.No.195 is Ac.4-08 cents. Pattadar passbook was issued to them about 20 years ago. He did not file any document of his title. But he filed only pattadar passbook stands in the name of himself and his brother. He further deposed, “It is true Ac.1-94 cents consists of single bit having ridges on four sides. At present stones were available as demarcation of

Ac.1-94 cents. It is true Ac.1-94 cents has been in possession and enjoyment of the plaintiff in O.S.No.935/2008.” The Plaintiff in

O.S.No.935/2008 not examined the revenue authorities to prove the entry

in pattadar passbook is not relating to defendants. They simply relying on old documents and claiming the defendants have no site towards south of suit schedule property and the suit is filed for injunction simplicitor and another suit for declaration has to be filed.

As per the evidence of DW-1, PW-1 and PW-3, it is clear that there are ridges on four sides of suit schedule properties in both the suits and they have been enjoying their respective extent of properties by raising crops. Both have no right to interfere with others property or against the property of each other. Their interference is unwarranted. Hence the plaintiffs in O.S.No.444/2010 are entitled for perpetual injunction.

18.Issue No.4 in O.S.No.935/2008 and

Issue No.2 in O.S.No.444/2010 :

To what relief?

In the result, the suit in O.S.No.935/2008 is decreed without costs granting perpetual injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the plaintiff in the plaint schedule property and its crops therein.

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The suit in O.S.No.444/2010 is decreed without costs granting perpetual injunction restraining the defendant and her men from interfering with the peaceful possession and enjoyment of the plaintiffs in the plaint schedule property.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open Court this the 30 th day of May, 2015.

PRL. JUNIOR CIVIL JUDGE,

ONGOLE

Appendix of Evidence

Witnesses examined

For Plaintiff: For Defendants:

PW-1: Chennareddy Subbamma DW-1: Katragadda Venkateswarlu PW-2: Katragadda Audi NarayanaDW-2: Chennareddy Surya Narayana PW-3: G. Venkata Musalaiah

Documents marked

For Plaintiff:

Ex.A1/ –: Title deed stands in the name of Plaintiff. Ex.A2/ --: Pattadar passbook stands in the name of plaintiff. Ex.A3/ –: Certified copy of judgment in O.S.No.291/1969 on the file of District Munsif Court, Ongole. Ex.A4/ --: Certified copy of Judgment in A.S.No.163/1978 on the file of Addl. District Court, Ongole. Ex.A5/ --: Registration extract of Settlement deed dt.20-01-1904 executed by Edara Venkata Rangam in favour of Katragadda Subbamma. Ex.A6/ –: Registration extract of sale deed dt.27-12-1923 executed by Edara Sreeramulu and Madala Rama Seethamma in favour of Nadipineni Ankaiah. Ex.A7/ --: Attested copy of F.M.B. relating to Field No.195 of Raparla village. Ex.A8/ –: Attested copy of Re-survey and re-settlement register of Raparla village, dt.31-03-2009. Ex.A9/ –: Attested copy of 1-A Namuna issued by the Deputy Tahsildar, N.G. Padu for S.No.195 of Raparla village. Ex.A10/ –: Registration extract of sale deed dt.24-05-1954 executed by Edara Atchaiah and Edara Mahalakshamma in favour of Dodda Subbaiah. Ex.A11/ –: Copy of 10-1 account for S.No.195 of Raparla village issued by the Village Revenue Officer, Raparla.

17

For Defendants :

Ex.B1/ –: Pattadar passbook stands in the name of 1st defendant. Ex.B2/ --: Pattadar passbook stands in the name of 2nd defendant. Ex.B3/ –: Certified copy of the sketch of Field No.195. Ex.B4/ –: Certified copy of Commissioner report with plan in I.A.No.164/2009 in O.S.No.935/2008.

P.J.C.J.

ONGOLE

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: ONGOLE

Present: Smt T. Haritha,

Prl. Junior Civil Judge, Ongole

Saturday, the Thirtieth (30th) Day of May, 2015

ORIGINAL SUIT NO.888/2008

AND

ORIGINAL SUIT NO.108/2009

O.S.NO.888/2008:

BETWEEN :

Dharmavarapu Anjamma, W/o. Venkata Rao, Hindu, aged 43 years, Housewife, R/o. Thimmannapalem (V), Korisapadu Mandal, Prakasam District … Plaintiff

And

Chaganti Venkatappaiah, S/o. Seetharamaiah, Hindu, aged 40 years, cultivation, R/o. Chinna Ravipadu (V), Chimakurthy Mandal, Prakasam District … Defendant

A N D

O.S.NO.108/2009:

BETWEEN :

Chaganti Venkatappaiah, S/o. Seetharamaiah, aged 40 years, cultivation, R/o. Chinna Ravipadu (V), Chimakurthy Mandal, Prakasam District … Plaintiff

And

Dharmavarapu Anjamma, W/o. Venkata Rao, aged 43 years, Housewife, R/o. Thimmannapalem (V), Korisapadu Mandal, Prakasam District … Defendant

These suits coming on 10-04-2015 before me for final hearing in the presence of Sri C. Venkateswarlu and C. Venkata Rao, Advocates for the Plaintiff in O.S.No.888/2008 and Advocates for the Defendant in

O.S.No.108/2009 and of Sri B. Hanuma Reddy and Y. Konda Reddy,

Advocates for the Plaintiff in O.S.No.108/2009 and Advocates for the Defendant in O.S.No.888/2008, upon hearing the arguments and having stood over for consideration till this day, this Court delivered the following:

// COMMON JUDGMENT //

O.S.No.888/2008:

1.The suit is filed for perpetual injunction restraining the defendant, his men and followers from interfering in any manner with the plaintiff's 2 exclusive possession and enjoyment of the plaint schedule property and for costs.

2.The brief averments of the plaint reads as follows:

One Gali Seethamma is paternal aunt of plaintiff and defendant.

She inherited the suit schedule property from her husband. She had no issues. She executed a Will on 21-04-1997 bequeathing the properties in favour of the plaintiff and Defendant. Later she executed another Will on 21-04-1997 with some modifications of the earlier Will. Later on 18-05- 2001 Gali Seethamma executed a Regd. Settlement deed in favour of the plaintiff with regard to suit schedule properties and properties in

S.Nos.225/1 and 223/1. Ever since she has been in possession and enjoyment of the same. On 15-05-2004, the plaintiff and defendant got exchanged the properties. The plaintiff settled Ac.1-37 cents in

S.No.225/1 and Ac.1-31 cents in S.No.223/1 in favour of the defendant. In turn the defendant executed Settlement deed in plaintiff's favour for similar extent of Ac.3-08 cents of his land in S.No.194/1 from out of the land of Ac.5-37 cents. Ever since the plaintiff and defendant have been enjoying their respective items of the property without any disputes. Gali

Seethamma died on 05-07-2006. The Defendant got issued a legal notice to the plaintiff alleging that Gali Seethamma executed a Will dt.03-10- 1986 in the name of the plaintiff and defendant and claiming right thereon, ignoring last and final will that was executed and registered by late Seethamma on 21-04-1997 and the Settlement deed dt.18-05-2001 under which Seethamma settled her properties in plaintiff's favour and also the exchange of properties on 15-05-2004 in between the plaintiff and defendant. The plaintiff got issued a reply notice. The plaintiff obtained pattadar passbook and title deed. Her name was mutated in revenue 3 records including 1-B Register. She also secured loan from the Bank by hypothecating the plaint schedule property. The defendant proclaiming in the village that he would cause obstruction with the plaintiff's enjoyment of plaint schedule property and also preventing the plaintiff from disposing of the sale as he intends to alienates the same. The defendant has no right, title or interest in the plaint schedule property. Those have been in possession and enjoyment of the plaintiff. Hence the suit.

3.The Defendant filed written statement. The brief averments of the written statement are that:

He denied the contents of the plaint with regard to settlement deed and execution of the Will etc. He admitted the relationship between the plaintiff and defendant and Gali Seethamma. His contention is,

Seethamma executed a Will on 03-10-1986 and got it registered. In that

Will, she mentioned the property in two schedules. She bequeathed A schedule property to defendant, B schedule property to plaintiff. He admitted Seethamma died in the year 2006. During lifetime, Seethamma disposed off some properties mentioned in the Will. The plaintiff is not in possession and enjoyment of the suit schedule properties. The boundaries mentioned in the schedule are not correct. The land shown in the schedule is not there on the land by metes and bounds. The exchange deeds are not concerned with the suit schedule lands. They were executed for a different purpose. They are unnecessary for the just decision of this suit. The alleged modified Will dt.21-04-1970 of

Seethamma is another aspect which is not necessary to decide the issue in this suit. There is no necessity of late Seethamma to execute the

Settlement deed in favour of the plaintiff. The plaintiff was never near 4 and dear to late Seethamma. The settlement deed did not carry the intention of the late Seethamma. The said Settlement deed cannot be acted upon and it will not create any right in favour of the plaintiff. The revenue records obtained in the name of the plaintiff do not destroy the rights of the defendant. No revenue record will establish any right to anybody. The revenue records are not title deeds. He gave notice with true allegations. The plaintiff gave reply with false allegations. The defendant filed O.S.No.108/2009 on the file of this Court for declaration of his rights in S.Nos.189/18, 194/1, 196 of China Ravipadu village. The plaintiff has no right and possession over the suit schedule property.

Prays to dismiss the suit.

4.The following issues are settled for trial :

1.Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?

2.To what relief?

O.S.No.108/2009:

Suit is filed for declaration to declare the plaintiff's right over the schedule properties and for consequential permanent injunction restraining the defendant and her men from alienating the schedule properties to others and for costs.

5.The brief averments of the plaint reads as follows:

The plaintiff and defendant are brother and sister and they are children of Seetharamaiah who went illitam. One Gali Seethamma is the paternal aunt of the plaintiff and defendant. Seethamma and her husband

Kotaiah and father of the plaintiff and defendant along with the plaintiff and defendant lived in one roof as joint family. Kotaiah died intestate and 5

Seethamma succeeded the properties. On 03-10-1986 the said

Seethamma bequeathed 'A' schedule property to plaintiff and 'B' schedule property to defendant under a registered Will. If any property not shown in the Will, they will fell to the share of the plaintiff as per the Will. Item

No.3 of the schedule property is shown in the Will and as per the Will, the plaintiff is entitled for item No.3 of the schedule property. Seethamma died on 16-07-2006. Seethamma was under care and custody of plaintiff till her death. After the death of Seethamma, the plaintiff has been in peaceful possession and enjoyment of the schedule properties. recently the plaintiff came to know that the defendant got some property under a gift, which includes schedule property and trying to alienate the same.

Seethamma has not executed any document in favour of the defendant and if any such document said to have been executed, it is a forged one.

Seethamma neither cancelled the Will dt.03-10-1986 nor executed any fresh Will. Exchange of notice took place. Defendant filed a suit in

O.S.No.888/2008 for permanent injunction on the file of this Court and

the same is pending. As there is a cloud on the title of the plaintiff, this suit is filed. Hence the suit.

6.The Defendant filed written statement. The brief averments of the written statement are that:

She denied the contents of the plaint and admitted the relationship between them and stated on 18-05-2001 Gali Seethamma executed a

Settlement deed in her favour. Ever since she has been enjoying the plaint schedule properties with absolute rights having obtained pattadar passbook, title deed and her name was mutated in revenue records.

There was exchange in between the plaintiff and defendant on 15-05- 6 2004. The defendant executed a Settlement deed for Ac.3-08 cents for land in S.No.194/1. She executed a Settlement deed with regard to the property situated in S.No.225/1 and 223/1 which was secured by her under

Settlement deed dt.18-05-2001 and got by her from Gali Seethamma. Her father Seetharamaiah and Gali Seethamma lived in her house till their death. The plaintiff filed the suit with false allegation and basing on the will dt.03-10-1986 ignoring the subsequent Will dt.21-04-1997 and

Settlement deed dt.18-05-2001. Hence the suit is not maintainable. Prays to dismiss the suit.

7.The following issues are settled for trial:

1. Whether the plaintiff is entitled for the relief of declaration and consequential permanent injunction as prayed for?

2. To what relief?

8.The evidence was recorded in O.S.No.888/2008, hence the parties are referred as plaintiff and defendant as per O.S.No.888/2008 for the sake of convenience.

9.During the course of trial, the Plaintiff herself got examined as

PW.1. Attestor of Ex.A3 Settlement deed was examined as PW-2. Father of plaintiff and defendant was examined as PW-3. Exs.A1 to A9 are marked. Ex.A1 is Regd. Will dt.21-04-1997 executed by Gali Seethamma,

Ex.A2 is Regd. Settlement deed dt.18-05-2001 executed by Gali

Seethamma in favour of the plaintiff, Ex.A3 Regd. Settlement deed dt.15- 05-2004 executed by defendant in favour of the plaintiff, Ex.A4 is pattadar passbook stands in the name of plaintiff, Ex.A5 is title deed stands in the name of plaintiff, Ex.A6 is true copy of 1-B Register dt.31-07-2007, Ex.A7 is property certificate dt.31-07-2007, Ex.A8 is true copy of No.3 Adangal 7 pertains to suit schedule property and Ex.A9 is certified copy of plaint in

O.S.No.108/2009. Exs.A6 to A8 are issued by Village Revenue Officer,

Chinaravipadu. Plaintiff's evidence is closed.

After closure of the plaintiff side evidence, the Defendant himself got examined as DW-1. Attestor of Ex.B1 Will dt.03-10-1986 was examined as DW-2. Exs.B1 to B4 are marked. Ex.B1 is certified copy of the Will dt.03-10-1986 executed by Gali Seethamma in favour of the plaintiff and defendant, Ex.B2 is office copy of legal notice dt.08-08-2008 issued by defendant, Ex.B3 is reply notice issued by the plaintiff dt.06-10- 2008 and Ex.B4 is voter identity card of Gali Seethamma. Defendant evidence was closed.

10.Heard both sides.

11.Issue No.1 in O.S.No.888/2008 :

Whether the plaintiff is entitled for the relief of permanent

injunction as prayed for?

The Defendant in his written statement mentioned, the schedule mentioned is not correct and the land is not in existence as per the schedule mentioned along with the plaint. During cross-examination,

DW.1 deposed “I did not mention if the boundaries mentioned in the schedule of the suit is not correct.” He further mentioned in the written statement, the modified Will dt.21-04-1970 by Gali Seethamma is not necessary to decide the issue in this suit. But during cross-examination, he pleaded he do not know Gali Seethamma executed Modified Will in the year 1997. He further deposed, Seethamma never discussed about Will of the year 1997, 1986 and Settlement deeds of the year 2001 and 2004.

She never informed to him. The Defendant mentioned in the written 8 statement, the plaintiff was never near and dear to late Seethamma. But during cross-examination, he deposed expenditure for the final obsequies of Seethamma was incurred by the plaintiff. His father performed final obsequies. That shows, the plaintiff was never near and dear to late

Seethamma is false.

He further contended, the Settlement deed was brought into existence either normally or by misrepresentation and fraud. But he did not adduce any evidence to prove the same. He further mentioned in the written statement, the settlement deed cannot be acted upon and it will not create any right in favour of the plaintiff. But the plaintiff obtained pattadar passbook and title deed and her name was mutated in the revenue records and the documents marked as Exs.A4 to A6 reveals, the

Settlement deed was acted upon and she is in possession and enjoyment of the suit schedule properties.

DW-1 during his cross-examination deposed, “I got read over the contents of the documents filed by the plaintiff”. That shows, he has knowledge about mutation of name of plaintiff in revenue records and issuance of pattadar passbook and title deed. During cross-examination, he further deposed, he did not take any steps before revenue Court for cancellation of pattadar passbook and title deed stands in the name of plaintiff. That shows, the Settlement deed was acted upon and it created right, possession and enjoyment to the plaintiff over the suit schedule property. Hence the contention of the defendant is not acceptable.

12.The Plaintiff in order to establish her possession, got filed Ex.A2

Regd. Settlement deed dt.18-05-2001 and Ex.A3 Regd. Settlement deed dt.15-05-2004. Apart from that, she examined PW-2 first attestor of 9

Settlement deed dt.18-05-2001 executed by Gali Seethamma. PW-2 deposed, Gali Seethamma was present at the time of registration of document and handed over the possession. Stamps were not purchased in her name. Ex.A2 Settlement deed was executed at Chinaravipadu Sub-

Registrar Office. At the request of the plaintiff and her husband, he acted as attestor for Ex.A2. His chief examination was prepared on his instructions. Evidence of PW-2 clearly establishes his presence at the time of execution of Settlement deed under Ex.A2 and there is no cross- examination with regard to misrepresentation, fraud as pleaded by the defendant in his written statement. Thus, the defendant failed to prove the plea that the plaintiff obtained Settlement deed by misrepresentation and fraud.

PW-3 father of plaintiff and defendant deposed, Gali Seethamma executed Settlement deed in the year 2001 under Ex.A2 to an extent of

Ac.7-28 cents. Later there was exchange of properties between the plaintiff and defendant under two Regd. Settlement deeds. Since then they are enjoying their respective extents. His son with malafide intention, got issued frivolous legal notice and foisted this suit. During cross-examination he deposed, extent of suit schedule property is Ac.7-28 cents. There is red gram crop in the year 2008 in suit schedule property.

He do not remember the survey number of suit schedule property. He admitted execution of Will by Gali Seethamma under Ex.B1. He do not remember who are present at the time of execution of Will by Gali

Seethamma. He do not know who is scribe of the Will. He do not know who signed as attestor on Ex.A1 Will. His evidence supports the version of the plaintiff and not supports the version of the defendant.

10

By examining PWS-1 to 3, the plaintiff is able to establish she has been in possession and enjoyment of the suit schedule property. Apart from oral evidence of PWs-1 to 3, she filed Exs.A2 to A8 documents to prove her possession and enjoyment over the suit schedule property.

Evidence of PWs-1 to 3 and contents of Exs.A2 to A8 clearly establishes the possession and enjoyment of the plaintiff over the suit schedule property.

13.DW-1 during cross-examination deposed, from the year 2006 the land was kept as beedu. In fact he is not in possession and enjoyment o the suit schedule property. When he is not in possession and enjoyment of the suit schedule property, he is not entitled for perpetual injunction.

He did not file any documentary evidence to establish his possession and enjoyment over the suit schedule property.

In view of the above discussion, the plaintiff is able to establish her right, possession and enjoyment over the suit schedule property. Hence the plaintiff is entitled for perpetual injunction as prayed for. The interference by the defendant is unwarranted. The defendant has no right to interfere with the right, possession and enjoyment of the suit schedule property by the plaintiff. The plaintiff categorically mentioned in the plaint and chief examination affidavit, the defendant proclaiming in the village that he would cause obstruction with enjoyment of the suit schedule property and prevents her from disposing of sale and he intends to alienates the same. His interference is unwarranted.

14.Issue No.1 in O.S.No.108/2009:

Whether the plaintiff is entitled for the relief of declaration and

consequential permanent injunction as prayed for?

11

DW-1 reiterated the contents of the plaint in O.S.No.108/2009 in his chief examination affidavit. To establish his title, the defendant has filed the certified copy of the Will dt.03-10-1986 executed by Gali Seethamma.

He did not mention either in the plaint or in his evidence what happened to the original Will and why he filed certified copy of the Will. Certified copy of the Will is only a secondary evidence. That too on proof original

Will is lost. He did not mention anywhere in the plaint or in written statement or in his evidence what happened to the original Will. Without mentioning what happened to the original Will, he simply filed certified copy of the Will obtained by him from Sub-Registrar Office. Ex.B1 Will is not substantial piece of evidence to declare the title of the defendant over the suit schedule properties. Ex.B2 is office copy of legal notice, Ex.B3 is reply notice and Ex.B4 is photo identity card of Seethamma. Those documents are not helpful to the defendant to prove his title over the suit schedule property.

DW-1 during cross-examination deposed, he is native of Kandlapady village, Mundlamuru Mandal. Maternal aunt name is Gali Seethamma.

She is native of Chinaravipadu village of Chimakurthy Mandal. She has no children. Maternal aunt and her husband brought his parents from

Kambhampadu village to Chinaravipadu village of Chimakurthy Mandal.

Himself and plaintiff born at Chinaravipadu village. The marriage of plaintiff was performed with Venkata Rao. The disputed properties belongs to Gali Seethamma. Seethamma executed Will in the year 1986 only. The plaintiff filed suit stating Gali Seethamma gave the property to her under written document. There are about three suits between himself and plaintiff. He do not know about the modified Will under Ex.A1. He 12 got read over the contents of the documents filed by the plaintiff. He do not know about the Settlement deed under Ex.A2. He do not know under

Ex.A2 the plaintiff got Ac.7-28 cents from Gali Seethamma. It is true, plaintiff executed Settlement deed in my favour and transferred the property of Ac.1-71 cents in S.No.223/1 and Ac.1-37 cents in S.No.225/1, total Ac.3-08 cents. As per the version of the plaintiff, she got the property in S.Nos.223/1 and 225/1 under Ex.A2 Regd. Settlement deed.

When he obtained Settlement deed in his favour, that itself establishes he is admitting the contents of Ex.A2 Settlement deed. He did not question the settlement deed and he do not sought for cancellation of said

Settlement deed. Apart from that he acted upon Settlement deed under

Ex.A2. Hence the contention of the defendant is, he do not know about the settlement deed under Ex.A2 is not at all believable.

15.DW-1 further admitted about execution of Settlement deed under

Ex.A3. He categorically deposed, “I executed Settlement deed for Ac.3-08 cents in favour of the plaintiff.” He did not included those properties in the suit schedule of O.S.No.108/2009. He further deposed, “It is true, we are enjoying our respective shares as per Will and Settlement deed. It is true, we are enjoying our shares inherited by us by obtaining separate revenue records.” Till the death of Seethamma and till the year 2008, there are no disputes between them. He came to know about the loan obtained by the plaintiff from the Bank after filing of the suit.

The above evidence clearly shows, the plaintiff and defendant have been in possession and enjoyment of their respective properties as per the

Settlement deed executed by Gali Seethamma, plaintiff and defendant.

His contention is, he got the suit schedule property in O.S.No.108/2009 13 under Ex.B1 Will. Ex.B1 Will is the last Will of Seethamma. He further deposed, “It is true, I did not mention about Settlement deeds and exchange deeds between myself and plaintiff in declaration suit.” He is very well aware of settlement deed executed by Gali Seethamma, exchange deeds between them, but he suppressed the fact. He is not aware of Ex.A1 Will and Settlement deeds under Exs.A2 and A3 is false.

He further deposed, “It is true, Ac.7-28 cents is a single bit.” The documents filed by the defendant are not sufficient to establish his title over the suit schedule property.

16.The Defendant examined Attestor of the Will under Ex.B1. During cross-examination DW-2 deposed, he do not know about subsequent events happened after execution of Ex.B1 Will. It is settled law that even if a Will was executed by a person, she has every right to dispose of those properties during her lifetime. Gali Seethamma during her lifetime sold some properties. The said fact was admitted by both parties. She executed Settlement deed as per her wish under Ex.A2. She had every right and title to execute the Ex.A2 Settlement deed even after execution of Regd. Will under Ex.B1.

The oral and documentary evidence filed by the defendant is not sufficient to declare his title over the suit schedule property. Thus, the defendant failed to establish his title over the suit schedule property.

17.Issue No.2 in O.S.No.888/2008 and

Issue No.2 in O.S.No.108/2009 :

To what relief?

In the result, the suit in O.S.No.888/2008 is decreed with costs granting perpetual injunction restraining the defendant, his men and 14 followers from interfering in any manner with the plaintiff’s exclusive possession and enjoyment of the plaint schedule property.

The suit in O.S.No.108/2009 is dismissed with costs.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open Court this the 30 th day of May, 2015.

PRL. JUNIOR CIVIL JUDGE,

ONGOLE

Appendix of Evidence

Witnesses examined

For Plaintiff: For Defendant:

PW-1: Dharmavarapu Anjamma DW-1: Chaganti Venkatappaiah PW-2: Paritala Chiranjeevi DW-2: Gali Ramachandra Rao PW-3: Chaganti Seetharamaiah

Documents marked

For Plaintiff:

Ex.A1/21-04-1997: Regd. Will executed by Gali Seethamma in favour of plaintiff and defendant. Ex.A2/18-05-2001: Regd. Settlement deed executed by Gali Seethamma in favour of the plaintiff. Ex.A3/15-05-2004: Regd. Settlement deed executed by defendant in favour of the plaintiff. Ex.A4/17-03-2004: Pattadar passbook stands in the name of plaintiff issued by M.R.O., Chimakurthy. Ex.A5/17-03-2003: Land ownership Title deed passbook stands in the name of plaintiff issued by the M.R.O., Chimakurthy. Ex.A6/31-07-2007: Extract of 1-B Register issued by V.R.O., Chinaravipadu village in favour of plaintiff. Ex.A7/31-07-2007: Property certificate issued by the Village Revenue Officer, Chinaravipadu village in favour of plaintiff. Ex.A8/13-08-2008: Extract of No.3 Adangal for the year 2006-07 issued by the V.R.O., Chinaravipadu village. Ex.A9/ --: Served copy of plaint in O.S.No.108/2009 on the file of P.J.C.J. Court, Ongole.

For Defendant :

Ex.B1/ –: Certified copy of the Will dt.03-10-1986 executed by Gali Seethamma in favour of the plaintiff and defendant. Ex.B2/08-08-2008: Office copy of legal notice issued by defendant. Ex.B3/06-10-2008: Office copy of Reply notice issued by the plaintiff. Ex.B4/ --: Voter identity card of Gali Seethamma.

P.J.C.J.

ONGOLE

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: ONGOLE

Present: Smt T. Haritha,

Principal Junior Civil Judge, Ongole

Saturday, the Thirtieth (30th) Day of May, 2015

Original Suit No.78/2013

Between:

1. Masimukku Rattaiah, S/o. Late Raghavaiah, Hindu, aged 80 years, Dependant, R/o. House No.1-123, Uppugunduru, N.G. Padu Mandal, Prakasam District

2. Masimukku Srinivasa Rao, S/o. Rattaiah, aged 45 years, Hindu, Agriculture and Business, R/o. H.No.1-127, Uppugunduru, N.G. Padu Mandal, Prakasam District … Plaintiffs

And

Masimukku Venkateswarlu, S/o. Rattaiah, aged 48 years, Hindu, Business, R/o. House No.1-127, Uppugunduru, N.G. Padu Mandal, Prakasam District … Defendant

The suit coming on 17-04-2015 before me for final hearing in the presence of Smt. M. Sarada, Advocate for the plaintiffs and of Sri M. Rama Murthy, Advocate for the defendant, upon hearing the arguments and the matter 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 mandatory injunction directing the defendant to remove the shops etc. raised recently by trespassing and occupying the suit schedule site illegally and for costs.

02.The brief averments of the plaint are that:

The defendant occupied the plaint schedule 'E1 E2 E3 E4' marked property which is road margin and shown as plaint plan and raised the ut to his tea shop. Originally, the 1st plaintiff was granted D.K. Patta for an extent of Ac.0-06 cents in S.No.77A/1A3 Uppugunduru village, N.G. Padu

Mandal in the year 1976. Later the property was divided into three parts shown as A, B, C in rough plan. The 2nd plaintiff is residing in A portion.

3rd son of 1st plaintiff is residing in B portion. The 1st plaintiff is in 2 possession of C portion. The Defendant is residing on eastern side of B- portion which is clearly shown as V1, V2, V3, V4 in the plaint plan. The defendant raised a shop at south-west corner of 2nd plaintiff's A-portion in road margin illegally and forcibly which is shown as E1, E2, E3, E4 and causing obstructions to the plaintiff to reach southern side road freely which leads to Eedumudi - Inkollu and other villages from Uppugunduru.

The defendant has no right to use the road margin obstructing the plaintiffs for ingress and egress. The plaintiffs got issued a legal notice on 19-01-2013 to the defendant. The defendant got issued a reply notice on 01-02-2013 stating the construction place is covered by R & B

Department. Hence the suit.

03.The Defendant filed written statement. The brief averments of the written statement are that:

He denied the contents of the plaint and submitted, he occupied the plaint schedule E1 E2 E3 E4 marked property which is road margin as shown in the plaint plan and raised hut to his tea shop in the year 1986.

The same was removed by this defendant in the year 1988 and constructed asbestos roofed shed in the said road Uppugunduru to

Eedumudi road owned by R & B Department. This defendant's shop is situated towards south face on eastern edge of Eedumudi road. The plaintiffs constructed house towards south face. In front of the said house, the defendant's tea shop is situated. The plaintiffs have no manner of right and title over the suit schedule property. The

Government is the paramount title holder of plaint schedule property.

The 1st plaintiff encroached R & B road from east to west at a width of two meters and 7.6 meters length from south to north construction A marked portion of the building. The same was brought to his notice at 3 the time of measuring the suit schedule property and A B C marked portion of plaint plan by the Advocate/commissioner with the assistance of Mandal Surveyor. There is no cause of action to plaintiff's case and locus standi to file the suit against the defendant. The defendant obtained Electricity service connection from A.P.S.E.B., Ongole with

S.C.No.1451. The Gram Panchayat asked the defendant to remove the part of the roof of his shop to run water pipeline in the ground from south to north into the S.T. Colony of Uppugunduru. Accordingly, he removed and Gram Panchayat laid pipeline. Immediately this defendant refixed the roof to his tea shop. The plaintiffs took photographs by the time of refixing the roof of his shop and kept quite. The plaintiffs also running tea and cool drinks shop in their respective properties. Suit is bad for non-joinder of necessary parties. Prays to dismiss the suit.

04.The following issues are settled for trial :

1.Whether the suit is bad for non-joinder of necessary parties?

2.Whether the plaintiff is entitled for mandatory injunction as prayed for?

3.To what relief?

05.During the course of trial, the 2nd Plaintiff himself got examined as

PW.1. The Advocate-commissioner is examined as CW-1. Exs.A1 to A4 are marked. Ex.A1 is D.K. Patta stands in the name of 1st plaintiff, Ex.A2 is legal notice dt.19-01-2013, Ex.A3 is acknowledgment from defendant and Ex.A4 is reply notice dt.01-02-2013. Ex.C1 is Commissioner report and Ex.C2 is layout sketch of Mandal Surveyor. Plaintiff's evidence is closed.

After closure of the plaintiffs side evidence, the Defendant himself got examined as DW-1. Exs.B1 to B10 are marked. Ex.B1 is photo with 4

C.D. and Exs.B2 to B10 are electricity consumption receipts from the year 2006 to 2014. Defendant side evidence is closed.

06.Heard both sides.

07.Issue No.1 :

Whether the suit is bad for non-joinder of necessary

parties?

In the written statement, the defendant not mentioned who are necessary parties. Without mentioning who are necessary parties, he simply stated the suit is bad for non-joinder of necessary parties. Hence the contention of the defendant is not acceptable. The suit is not bad for non-joinder of necessary parties.

08.Issue No.2 :

Whether the plaintiff is entitled for mandatory injunction as prayed for?

The counsel for the defendant submitted, the encroached property was situated in R & B Road. R & B Department or Gram Panchayat has to take steps. The plaintiff and Defendant are brothers. To take revenge against the defendant, the present suit is filed. No complaint by R & B

Department or Gram Panchayat and there is no objection by villagers, hence there is no cause of action. There is no private road to the plaintiff to seek the present relief. The property which is encroached by the defendant is not a property of the plaintiff.

In view of Sec.58 of Indian Evidence Act and Sec.41 of Specific

Relief Act, the plaintiff is not entitled for the relief as prayed for. As per

Sec.41, injunction has to be refused, when the plaintiff has no personal interest in the matter.

5

09.PW-1 reiterated the contents of the plaint in his chief examination affidavit. During cross-examination, PW-1 deposed, the suit schedule property belongs to Government i.e. R & B Department. Tea stall is situated towards west of his property. His house is facing towards south and west. Main fencing is towards south. He is running cool drink shop in his house. He admitted, he occupied two meters site of R & B site at the time of construction of his house. He added, his house was constructed about 50 years ago and prior to construction of road. He did not file any objection to Advocate-commissioner's report. The road was in existence since his childhood. His father constructed the building. He is alive. He admitted, there is an encroachment of 7.6 meters into road.

After measurement by the Surveyor, the shop is within place of R & B

Road. He deposed, “it is true in the same road on the parallel line, he kept asbestos sheet as roof to avoid encroachment by the defendant.”

The photo shown to him containing the properties of himself and his brother. The first shop belongs to defendant, second shop belongs to him. Ex.B1 is the photo. He deposed, “It is true as per my contention, two shops are in R & B Road site.” He is doing business in shop and not leased to others. He added, “prior to shop, there is a bunk. It is true, shops were removed for laying pipeline by R & B Department.” Again the defendant started construction at that time, he raised objection.

Evidence of PW-1 itself shows, the defendant encroached the road site as well as the plaintiff also encroached the road site.

10.DW-1 reiterated the contents of the written statement in his chief examination affidavit. During cross-examination, he deposed “I made construction encroaching the road margin site of Uppugunduru to 6

Eedumudi, Inkollu Road. I had evidence to show the encroachment. I filed the said documentary evidence. It is true measurements of encroached site shown in sketch prepared by Mandal Surveyor.

Measurements shown by the Surveyor are correct.” Though the plaintiff removed his encroachment, he is not ready to remove his encroachment.

Evidence of DW-1 itself is sufficient to establish he made construction of shop on the road margin site and the road belongs to

Government or R & B Department.

11.The contention of the counsel for the Defendant is, the property not belongs to the Defendant. Hence they have no right to seek mandatory injunction against the defendant. For that, the counsel for the plaintiff relied on a decision held in a case of “Josyula Hanuma Venkata Rao Vs.

Nandam Subbarayudu and others” reported in 1992 (3) ALT 375. The

Hon'ble High Court at Para No.6 held:

“A person cannot make any construction by making any

encroachment in the public street and the mandatory

injunction can be granted directing the demolition of the

said construction. If the constructions are made in the road

margin, the plaintiff who has got a right of access into the

road can seek the relief of mandatory injunction for

demolition of the constructions made by the defendants. No

doubt the constructions made by the plaintiff are also

encroachments in the said road margin. It is open to the

Gram Panchayat which is 14th defendant or anybody else to

take appropriate action against the plaintiff. If the gram

Panchayat or anybody else takes action against the plaintiff

for removal of construction, appropriate direction may be

given therein. But on that ground the plaintiff cannot be

deprived of the relief claimed by him. The owner of a

property adjacent to a highway or a public street has got a

right of access to such highway or street at any point of

which his land actually touches it.” 7

The ratio laid down in the above case squarely applies to the facts of the present case. The plaintiffs are owners of the property adjacent to highway. They had every right of access to such highway. The plaintiffs categorically mentioned in the plaint, the constructions made by the defendant is causing obstruction to the plaintiffs for their ingress and egress and it is causing obstruction to reach southern side road. The ration laid down in the above decision squarely applies to the facts of the present case.

12.It is admitted by both parties, the encroached portion was in public road. 'Public road' means any street, road, square, court, alley, passage, cart-track, footpath or riding path, over which the public have a right of way, whether a thorough-fare or not. The encroachment made by the defendant was on the public road. Nobody has got any right to make any construction therein including the plaintiff. The plaintiff also shall remove the encroachment made by him on the public road. The right of plaintiffs to use such highway or public street as soon as he is adjacent to that highway or public road becomes public right. When the constructions are made in the road margin, the plaintiffs who has got right of access into the road, can seek the relief of mandatory injunction for demolition of the constructions made by the defendant. The Advocate-commissioner also mentioned in her report and evidence, the defendant encroached E1 E2

E3 E4 portion and constructed shop in it. The defendant himself admitted he made construction in road margin.

In view of the above discussion, the plaintiff is entitled for the relief as prayed for.

13.Issue No.3 :

8

To what relief?

In the result, the suit is decreed without costs granting mandatory injunction directing the defendant to remove the shop raised by him by trespassing and occupying the Inkollu-Eedumudi road margin i.e. suit schedule site.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open Court this the 30 th day of May, 2015.

PRL. JUNIOR CIVIL JUDGE,

ONGOLE

Appendix of Evidence

Witnesses examined

For Plaintiffs: For Defendant:

PW-1: Masimukku Srinivasa Rao DW-1: Masimukku Venkateswarlu

Through Court:

CW-1: K. Rajani

Documents marked

For Plaintiffs:

Ex.A1/ –: D.K. Patta stands in the name of 1st plaintiff.

Ex.A2/19-01-2013: Legal notice issued by the plaintiffs. Kunchala Kotamma.

Ex.A3/ –: Acknowledgment from the defendant.

Ex.A4/01-02-2013: Reply notice issued by Panchayat Secretary, Gram Panchayat, Uppugunduru.

For Defendant:

Ex.B1/ –: Photograph with C.D.

Ex.B2/26-01-2006: Electricity charges receipt.

Ex.B3/21-09-2006: Electricity charges receipt.

Ex.B4/21-11-2006: Electricity charges receipt.

Ex.B5/29-07-2007: Electricity charges receipt.

Ex.B6/28-11-2007: Electricity charges receipt.

9

Ex.B7/29-09-2007: Electricity charges receipt.

Ex.B8/27-06-2008: Electricity charges receipt.

Ex.B9/21-07-2013: Electricity charges receipt.

Ex.B10/28-10-14: Electricity charges receipt.

Through CW-1:

Ex.C1/ –: Commissioner report. Ex.C2/ –: Layout sketch of Mandal Surveyor.

P.J.C.J.

ONGOLE

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: ONGOLE

Present: Smt T. Haritha,

Prl. Junior Civil Judge, Ongole

Saturday, the Thirtieth (30th) Day of May, 2015

ORIGINAL SUIT NO.420/2011

BETWEEN :

Mamillapalli Venkata Nagarathnam, W/o. Venugopala Rao, Hindu, aged 53 years, Housewife, R/o. Door No.6-318 (D), Shiridi Saibaba Nagar, North of Kurnool Road, Ongole-2, Prakasam District… Plaintiff

And

1. The District Collector, Prakasam Ditrict, Ongole

2. The Revenue Divisional Officer, Ongole

3. The Tahsildar, Ongole Mandal, Ongole… Defendants

The suit coming on 24-04-2015 before me for final hearing in the presence of Sri B. Ramalingam, Advocate for the Plaintiff and of Assistant Government Pleader for the Defendants; upon hearing the arguments and having stood over for consideration till this day, this Court delivered the following:

// J U D G M E N T //

1.The suit is filed for declaration that the plaintiff has got easementary and legal right over the 30 feet wide eastern public Donka which is situated on the east of the suit schedule property and to grant consequential perpetual injunction restraining the defendants for granting

D.K. Pattas to third parties to the 30 feet wide eastern public Donka and for costs.

2.The brief averments of the plaint reads as follows:

The Plaintiff purchased the suit schedule property i.e. Plot No.34 on 16-05-1992 under Regd. Sale deed No.1937/1992 of S.R.O., Ongole from one Ahamadulla Beig, who in turn purchased the same from Muthawallies of Ongole Rajawari Peerla Chavadi with Document No.1833/1990 and 2 obtained sale deed as per Orders dt.09-12-1988 in W.P.No.15180/1988.

The suit schedule property is part of the land in S.No.141 of Ongole Rural which originally belongs to Muthawallies of Ongole Rajawari Peerla

Chavadi which was divided into house plots as per G.O.Ms.No.31, dt.10- 01-1986. Prior to that, the suit property bounded by North 100 feet

Donka and on its East 30 feet Donka was in existence since times immemorial. The same reveals in the master plan. The plaintiff's and her vendor's sale deeds reveals that, the suit schedule property is bounded with northern boundary as road and eastern boundary as Donka. There are houses in between the plaintiff's site and northern road. Due to those houses, the plaintiff is not in a position to enter into the northern road directly. She had to use the eastern 30 feet Donka only for her ingress and egress to reach northern road. The plaintiff came to know that neighbours are approaching the 3rd defendant for D.K. Patta. The 3rd defendant is trying to give D.K. Pattas to the eastern road. If they issued any patta to the eastern road, the plaintiff cannot enjoy her property as there will not be any passage from her property. The defendants have no right to issue patta to the eastern road in which the plaintiff acquired easementary and legal right of passage by way of prescription, necessity and grant. Hence the suit.

3.The 3rd Defendant filed written statement. Defendants 1 and 2 filed adoption memo adopting the written statement of 3rd defendant.

The brief averments of the written statement are that:

They denied the contents of the plaint and submitted, Survey

No.141 of Ongole Rural area was divided into 185 plots and arranged from north to south. Roads also formed. Plot owners might have ingress into the roads left according to the plan. The suit plan and approved plan 3 filed by the plaintiff are xerox copies and contradictory to each other. As per R.S.R. Of Ongole village, S.No.141 is the wakf land with an extent of

Ac.20-68 cents. In the said land, private layout was formed long back with 185 house site plots with an extent of 50 gadies each. There is a donka on the northern side width 100 feet and there is 30 feet donka in

S.No.142. The northern side donka of the schedule property was covered with asbestos houses by others and the eastern side donka is vacant on the ground. Nobody approached 3rd defendant for grant of D.K. Pattas to them in the eastern side donka. As per the approved plan filed by themselves, there is no donka of 30 feet on the estern boundary to the plaint schedule plot No.34. Hence self styled schedule and plan cannot be relied upon and the self styled plan cannot be override the plan of layout approved at Ongole Rural Panchayat and filed by the plaintiff herself.

Prays to dismiss the suit.

4.The following issues are settled for trial :

1.Whether 30 feet eastern public donka is available on the east of suit schedule property as per approved plan?

2.Whether the plaintiff is entitled for declaration that he has got easementary and legal right over 30 feet eastern public donka which is situated on the east of suit schedule property and consequential permanent injunction as prayed for?

3.To what relief?

5.During the course of trial, the Plaintiff herself got examined as

PW.1. Third party to the suit by name Annangi Venkatrao was examined as PW-2. Advocate/commissioner was examined as PW-3. Exs.A1 and

A2 are marked. Ex.A1 is Regd. Sale deed dt.16-05-1992 executed by

Ahamadulla Beig in favour of the plaintiff and Ex.A2 is certified copy of 4 sale deed dt.05-05-1990 executed by Syed Jalal and others in favour of

Ahamadulla Beig. Ex.C1 commissioner report with rough plan and photos is marked through PW-3. Plaintiff's evidence is closed.

After closure of the plaintiff side evidence, the 3rd Defendant was got examined as DW-1. Exs.B1 to B3 are marked. Ex.B1 is true copy of

R.S.R., Ex.B2 is true copy of F.M.B. And Ex.B3 is true copy of combined sketch pertains to suit schedule property. Defendants side evidence is closed.

6.Heard both sides.

7.Issue No.1 :

Whether 30 feet eastern public donka is available on the east

of suit schedule property as per approved plan?

Ex.A1 is sale deed of plaintiff and Ex.A2 is sale deed of her vendor.

In that document, eastern boundary is mentioned as road. But as per the contention of the defendants and plaintiff, the entire extent is Ac.20-00 and odd. The same was divided into house plots. In order to establish eastern road, the plaintiff shall file approved plan. But she did not file approved plan and they kept the same in dark. When the layout is prepared, roads will be formed and they will show the way for ingress and egress of each plot owner. Without filing approved plan, the plaintiff failed to establish existence of eastern road. Simply mentioning of eastern boundary as road itself will not create any right and title to the plaintiff. Thus, the plaintiff failed to establish the eastern public road.

8.Issue No.2 :

Whether the plaintiff is entitled for declaration that he has

got easementary and legal right over 30 feet eastern public

5

donka which is situated on the east of suit schedule property

and consequential permanent injunction as prayed for?

PW-1 reiterated the contents of the plaint in her chief examination affidavit. During cross-examination, she deposed, still the suit schedule property is vacant. Suit schedule property is situated in S.No.141. The same is divided into 185 plots. There is a road towards north of his land which is situated in S.No.141. Her plot is last plot and north-east corner plot. Towards east of his plot, there is a road and it is situated in

S.No.142. He cannot say the road is situated towards east of his plot which is in S.No.142 not belongs to wakf board and it belongs to

Government. She admitted, northern road is 100 feet road. She do not know who made representation to the Tahsildar to grant patta in

S.No.142 and she do not know nobody made representation to the

Tahsildar to grant patta in S.No.142 which is on east of suit schedule property and there is no proposal from the Government to issue patta to landless poor persons in S.No.142.

PW-2 deposed supporting the version of PW-1. He also deposed, except the eastern road, the plaintiff had no other alternative passage for her ingress and egress. PW-3 Advocate-commissioner deposed, there are houses towards south of northern road. Hence the plaintiff cannot utilize northern road for her ingress and egress. Except the eastern side road, she has no other alternative passage. He prepared rough sketch and photos evidencing his visit.

9.PW-1 during cross-examination deposed, she did not add the third parties who are in possession by raising houses towards south of his northern boundary road. Without taking action against third parties, who raised houses towards north of her site, the suit is not maintainable. She 6 filed xerox copy of plan. As per that plan, eastern road was not in existence.

Evidence of PWs-1 to 3 clearly discloses that the suit schedule property is vacant site. There was a road towards north.

PW-1 categorically deposed, she do not know who gave representation to Tahsildar. She do not know who informed to her the

Government is going to grant pattas to eastern road. As per R.S.R.

Under Ex.B1, there is a road in S.No.142. As per Revenue Board standing

Orders, Government shall not issue any pattas into the road side which is earmarked as donka or road.

10.DW-1 reiterated the contents of the written statement in his chief examination affidavit. DW-1 during cross-examination admitted existence of Donka as per R.S.R. in S.No.142. DW-1 deposed in his cross-examination, “It is true the plaintiff's land is situated in S.No.141.

Total extent is Ac.20-18 cents. Donka was in existence in S.No.142 and the same was being utilized by neighbouring land owners for their ingress and egress since times immemorial to reach their respective properties.

It is true, towards east and north of S.No.141, there is a donka and it is situated in S.No.142. Government has no objection Donka was being utilized by neighbouring land owners for their ingress and egress.

Northern side of suit schedule property, there is 100 feet road. It is true, the plaintiff had no passage to reach northern side in view of construction of houses. There is no proposal to issue house site pattas to the site situated towards east of suit schedule property in S.No.142. We are not going to issue any patta to the east of suit schedule property in

S.No.142”.

7

Evidence of DW-1 discloses that the allegation of the plaintiff that the Government is going to issue D.K. Pattas to the road situated towards east of his property and it is only an apprehension and there is no real interference by the defendants. As per Board Standing Orders, the

Government or the Revenue Department shall not issue any house site pattas to the donka or road. Cause of action does not exists as on today and the allegation made by the plaintiff is only an apprehension. Without filing approved plan, the plaintiff is not entitled for declaration and consequential permanent injunction as prayed for. Hence the plaintiff is not entitled for the reliefs as prayed for.

11.Issue No.3 :

To what relief?

In the result, the suit is dismissed without costs.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open Court this the 30 th day of May, 2015.

PRL. JUNIOR CIVIL JUDGE,

ONGOLE

Appendix of Evidence

Witnesses examined

For Plaintiff: For Defendants:

PW-1: Mamillapalli Venkata Nagarathnam DW-1: M. Venkateswarlu PW-2: Annangi Venkatrao PW-3: P. Pavan Kumar

Documents marked

For Plaintiff:

Ex.A1/16-05-1992: Registered sale deed executed by Ahamadulla Beig in favour of the plaintiff under Document No.1937/1992. Ex.A2/ –: Certified copy of sale deed dt.05-05-1990 under Document No.1833/1990 executed by Syed Jalal and others in favour of Ahamadulla Beig.

Ex.C1/ – : Commissioner report with rough plan and photos.

8

For Defendants:

Ex.B1/ --: True copy of R.S.R. Ex.B2/ --: True copy of F.M.B. Ex.B3/ --: True copy of combined sketch.

P.J.C.J.

ONGOLE

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: ONGOLE

Present: Smt T. Haritha,

Prl. Junior Civil Judge, Ongole

Saturday, the Thirtieth (30th) Day of May, 2015

ORIGINAL SUIT NO.93/2013

BETWEEN :

1. Repuri Ramaiah, S/o. Late Peda Ankaiah, Hindu, aged 60 years, R/o. Naguluppalapadu (V) & (M), Prakasam District

2. Repuri Suresh @ Efrain, S/o. Ramaiah, Hindu, aged 26 years, R/o. Naguluppalapadu (V) & (M), Prakasam District … Plaintiffs

And

1. Repuri Singaiah, S/o. Late Peda Ankaiah, Hindu, aged 40 years, R/o. Naguluppalapadu (V) & (M), Prakasam District

2. Repuri Satyam, S/o. Ankaiah, aged 40 years, Hindu, R/o. Naguluppalapadu (V) & (M), Prakasam District… Defendants

The suit coming on 13-04-2015 before me for final hearing in the presence of Sri C.V. Rami Reddy, Advocate for the Plaintiffs and the 2nd defendant having remained exparte, suit against 1st defendant was dismissed for non-payment of batta; upon perusing the material available on record and having stood over for consideration till this day, this Court delivered the following:

// J U D G M E N T //

1.The suit is filed for declaration to declare the rights and title of the plaintiffs' half share in suit schedule property; for partition of the suit schedule property into two equal shares and for allotment of one such share to the plaintiffs and give separate possession of that half share to the plaintiffs and to grant permanent injunction restraining the defendants and their people from making constructions in the suit schedule property and for costs.

2

2.The brief averments of the plaint reads as follows:

The 1st Plaintiff and 1st Defendant are sons of late Peda Ankaiah.

2nd Plaintiff is the son of 1st plaintiff. Originally, the suit schedule property was assigned in the name of their father Peda Ankaiah. The original D.K. Patta is filed. The original assignee i.e. Peda Ankaiah died in the year 2011. Taking advantage of the absence of the plaintiffs in the village, the 1st defendant colluded with 2nd defendant and hatched a plan and encroached into the schedule property. The plaintiffs asked the defendants 1 and 2. They replied that they will be vacated and handed over to the plaintiffs with vacant possession within 3 months. But they did not do so. The 2nd defendant created fake patta in his favour from revenue people without knowledge of the plaintiffs. Without considering the request of the plaintiffs, they are constructing the house in the schedule property. The 2nd Defendant has no right and title over the schedule property. The 2nd defendant filed caveat O.P. against the plaintiffs with all false allegations on the file of Junior Civil Judge, dt.31- 07-2012. After receiving the caveat, the plaintiffs requested the 2nd defendant not to make any construction in the schedule property. But the 2nd Defendant refused the same and encroached into the schedule property and proclaiming that he has got right over the same. There is a cloud over the schedule property between the plaintiffs and defendants.

The defendants hatched a plan to obtain wrongful gain on the schedule property as the properties value is raised in the market. The 1st defendant who is own brother of 1st plaintiff has got half share in the suit schedule property along with the 1st plaintiff. The 2nd defendant 3 colluded with 1st defendant to avoid half share to the plaintiffs out of total 30 gadies of site. Hence the suit.

3.Suit against 1st defendant was dismissed for non-payment of batta.

Later the plaintiffs did not take any steps. The 2nd defendant received the summons from this Court and engaged an Advocate, but he did not file any written statement. Later he was set exparte.

4.On behalf of the plaintiffs, the 1st plaintiff himself got examined as

PW-1. Exs.A1 to A3 are marked. Ex.A1 is original D.K. Patta stands in the name of Repuri Peda Ankaiah, who is father of 1st plaintiff, Ex.A2 is served copy of caveat petition filed by the 2nd defendant and Ex.A3 is certificate issued by Panchayat Secretary, N.G. Padu village. Plaintiffs' evidence is closed.

6.Heard counsel for the plaintiffs.

7.Now the point for consideration is :

Whether the plaintiffs are entitled for declaration, partition and permanent injunction as prayed for?

PW-1 reiterated the contents of the plaint in his chief examination affidavit. He filed Ex.A3 certificate issued by Gram Panchayat Secretary which shows, there is no entry with regard to death of Repuri Peda

Ankaiah, who is father of 1st plaintiff and 1st Defendant. Hence the contention of the plaintiffs that, Repuri Peda Ankaiah died in the year 2011 is not appears to be believable. Apart from that, the plaintiffs did not take steps for sending summons to 1st Defendant. Suit was dismissed against the 1st defendant for non-payment of batta. When he 4 is saying 1st plaintiff and 1st defendant are brothers and entitled for half share, he is a proper and necessary party to the suit for partition.

Though the 1st plaintiff added his brother 1st defendant as a party to the suit, did not take steps by paying batta for issuance of summons to the 1st defendant. On that ground, the suit was dismissed against the 1st defendant. The 1st defendant is not in a position to contest the suit as he did not receive any summons. Without presence of 1st defendant, the plaintiff is not entitled for the relief of partition, declaration and consequential permanent injunction. Hence the suit is dismissed.

8.In the result, the suit is dismissed without costs.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open Court this the 30 th day of May, 2015.

PRL. JUNIOR CIVIL JUDGE,

ONGOLE

Appendix of Evidence

Witnesses examined

For Plaintiffs: For Defendants:

PW-1: Repuri RamaiahExparte

Documents marked

For Plaintiffs:

Ex.A1/15-09-1978: Original house site patta granted by the Government in favour 1st plaintiff's father Peda Ankaiah.

Ex.A2/31-07-2012: Un-numbered Caveat O.P. on the file of Junior Civil Judge filed by the 2nd defendant against the plaintiffs.

Ex.A3/21-12-2012: Certificate issued by Panchayat Secretary, N.G. Padu village.

For Defendant: Nil.

P.J.C.J. ONGOLE