Sri U.satya Rao

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IN THE COURT OF II ADDL. DISTRICT JUDGE ::

VISAKHAPATNAM

Present : Sri.U.Satya Rao II Addl. District Judge, Visakhapatnam.

Wednesday,this the 4th day of April, 2018

A.S.NO.145/2012

Between :

1. Baliji Pydiraju, S/o late Pydayya, aged 35 years, Hindu, employee, residing at D.No.3-106/2, Venkatapuram, Visakhapatnam-29.

2. Baliji Ramu, S/o Simhachalam, Hindu, aged 65 years, retired employee, residing at D.No.3-154, Venkatapuram, Visakhapatnam-29.

3. Baliji Varalakshmi, W/o late Nagaraju, Hindu, aged 55 years, residing at D.No.1-101, Venkatapuram, Visakhapatnam.

4. Baliji Meerayya, S/o Simhachalam, Hindu, aged 60 years, residing at 3-154, Venkatapuram, Visakhapatnam.

5. Baliji Varahalamma, W/o late Thatarao, aged 50 years, Hindu, household duties residing at D.No.4-38/5, Venkatapuram, Visakhapatnam-29.

6. Baliji Raju, S/o late Sanyasi, Hindu, aged 26 years, residing at D.No.1-82, Venkatapuram, Visakhapatnam-29.

7. Baliji Chellayyamma, W/o Ramulu, aged 80 years, Hindu, household duties, residing at D.No.1-94, Venkatapuram, Visakhapatnam-29. … Appellants

And :

1. Baliji Ramu, S/o late China Ramulu, Hindu, aged 49 years, residing at D.No.1-79, Venkatapuram, Visakhapatnam.

2. Mamidi Varhalamma, W/o late Sivarao, aged 50 years, Hindu, residing at D.No.1-79, Venkatapuram, Visakhapatnam. … Respondents

This appeal is filed by the appellants, aggrieved by the Decree & Judgment, dated 23-01-2012 passed by the II Addl. Junior Civil

Judge, Visakhapatnam in O.S.1600/2007.

Between :

1. Baliji Pydiraju, S/o late Pydayya, aged 35 years, Hindu, employee, residing at D.No.3-106/2, Venkatapuram, Visakhapatnam-29.

2. Baliji Ramu, S/o Simhachalam, Hindu, aged 65 years, retired employee, residing at D.No.3-154, Venkatapuram, Visakhapatnam-29.

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3. Baliji Varalakshmi, W/o late Nagaraju, Hindu, aged 55 years, residing at D.No.1-101, Venkatapuram, Visakhapatnam.

4. Baliji Meerayya, S/o Simhachalam, Hindu, aged 60 years, residing at 3-154, Venkatapuram, Visakhapatnam.

5. Baliji Varahalamma, W/o late Thatarao, aged 50 years, Hindu, household duties residing at D.No.4-38/5, Venkatapuram, Visakhapatnam-29.

6. Baliji Raju, S/o late Sanyasi, Hindu, aged 26 years, residing at D.No.1-82, Venkatapuram, Visakhapatnam-29.

7. Baliji Chellayyamma, W/o Ramulu, aged 80 years, Hindu, household duties, residing at D.No.1-94, Venkatapuram, Visakhapatnam-29. … Plaintiffs

And :

1. Baliji Appa Rao, S/o late China Ramulu, Hindu, aged 51 years, residing at D.No.1-79, Venkatapuram, Visakhapatnam.

2. Baliji Kanka Raju, S/o late China Ramulu, Hindu, aged 47 years,residingatD.No.4-38/4,Venkatapuram, visakhapatnam.

3. Baliji Ramu, S/o late China Ramulu, Hindu, aged 49 years, residing at D.No.1-79, Venkatapuram, Visakhapatnam.

4. Mamidi Varhalamma, W/o late Sivarao, aged 50 years, Hindu, residing at D.No.1-79, Venkatapuram, Visakhapatnam. … Defendants

This appeal is coming on 28-03-2018 for final hearing before me in the presence of Sri.M.K.Sitaramayya, Advocate for the

Appellants and of Sri.R.Krishnam Raju, Advocate for Respondents and the matter having stood over for consideration till this day, this

Court delivered the following:

J U D G M E N T

1.This is an appeal preferred by the unsuccessful plaintiffs challenging the decree and judgment, dt.23-01-2012 in

O.S.1600/2007 passed by the II Addl. Junior Civil Judge,

Visakhapatnam.

2.The suit was filed for permanent injunction to restrain the defendants and their men from interfering with the peaceful possession and enjoyment of the plaint schedule property by the plaintiffs.

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3.The parties are arrayed as depicted in the suit for the sake of convenience.

4.The provenance of case facts is :- An extent of acres 3.35½ cents in survey No.62/1A, 62 B to E, patta No.27 situated in

Venkatapuram Village was purchased by Baliji Pydayya, Baliji

Simhachalam and Baliji Ramulu. Baliji Pydayya was no other than the grandfather of 1st plaintiff. Baliji Simhachalam was the father of plaintiffs 2 and 4, father-in-law of plaintiffs 3 and 5 and grandfather of 6th plaintiff. Baliji Ramulu was the husband of 7th plaintiff. the above mentioned three persons jointly enjoyed the suit property during their lifetime and subsequent to their demise the property was divided between their heads leaving the plaint schedule property.

5.The plaint schedule property is situated on the South

West corner of the entire acres 3.35½ cents of land mentioned above. There used to be a soap nut tree in the plaint schedule property, all the family members used to enjoy the soap nuts for their domestic purpose. There used to be a big well on the North

East corner and the same was used by the plaintiffs for cultivating the lands and for domestic purpose.

6.While so, the soap nut tree was spoiled and thereafter the plaintiffs raised several trees like papaya, brinjal, tomato and the plaint schedule property was safeguarded by keeping fencing all along.

7.The 4th defendant is the sister of defendants 1 to 3 and defendants 1 to 4 are the children of late China Ramulu. Late China - 4 -

Ramulu was the cousin of Baliji Pydayya, Simhachalam and

Ramulu. All the defendants requested the plaintiffs to sell away the suit property for which the plaintiffs refused. Ever since, the defendants bore grudge. The defendants have political clout and they have been wielding influence in Police Department. They have been interfering with the possession and enjoyment of the plaint schedule property by the plaintiffs and in the absence of the plaintiffs they have been trying to trespass into the suit property.

They made a vain attempt on 15-08-2007 by dispossessing the plaintiffs from the suit property and the plaintiffs could rebuff their attempts with the help of their neighbours.

8.The plaintiffs gave report to the Officer Incharge of

Gopalapatnam against the defendants and the police didn't take any action. Hence, the suit.

9.Defendants 3 and 4 filed written statement admitting the relationship as averred in the plaint and denying all other material averments. The plaint schedule property is covered by survey No.61 but not survey No.62. The boundaries were wrongly mentioned by the plaintiffs and in fact the boundaries shown in the plaint schedule are the boundaries relating to the property situated in survey No.61 which is in possession of the defendants and they don't relate to the property in survey No.62 as contended by the plaintiffs. The plaintiffs have nothing to do with the property covered by survey No.61, the said property is vested in

Government and it is locally known as kamsali manyam. The extent is 96sq.yds. (2 cents). The father of the defendants was in - 5 - possession of the said property and his name is China Ramulu, after the death of China Ramulu, the defendants gave the same to the 4th defendant towards pasupu kumkuma 22 years ago and ever since the 4th defendant has been in possession and enjoyment of the said property. The plaintiffs intentionally changed the boundaries as if the said property is in survey No.62 and to grab the same. There is a political rift in the village and the plaintiffs have been trying to grab the suit property. There is no cause of action to file the suit. The suit is bad for non-joinder of necessary parties.

10.The defendants 1 and 2 remained exparte.

11.On the strength of the aforementioned pleadings, the following issues were settled for trial :-

1. Whether the plaintiff is entitled for decree of permanent injunction restraining the defendants, their men etc. from ever interfering with the peaceful possession and enjoyment of schedule property by plaintiff with costs or not ?

2. Whether the suit is bad for non-joinder of necessary

parties as contended by D3 and D4 or not ?

3. To what relief ?

12.In the trial afforded to both the parties, the 1st plaintiff was examined as PW.1, one V.Nookaraju was examined as PW.2.

A1 to A10 were exhibited on behalf of the plaintiffs. The defendants 5 and 2 were examined as DWs.1 and 2 respectively.

One Baliji Apparao, V.Appa Rao, Y.Mahalakshmi and M.Eswara Rao - 6 - were examined as DWs.3 to 6 respectively. Ex.B1 was exhibited on behalf of the defendants.

13.Given the evidence let in by the parties to the suit, the trial Court passed the impugned judgment dismissing the suit without costs against which the present appeal was preferred.

14.As seen from the grounds of appeal, the lower Court misread the oral and documentary evidence let in by the plaintiffs.

The lower Court failed to consider that the defendants didn't adduce any documentary evidence in support of their contention. The lower Court didn't consider the inconsistencies elicited in the cross- examination of DWs.1 to 6. The lower Court failed to consider the fact i.e. the admission made in the written statement in paragraph 13 indicating the plaint schedule property is in possession of the plaintiffs. The lower Court failed to consider that the defendants took inconsistent pleas regarding survey number since they mentioned the survey No.62/1A in caveat petitions filed by them and whereas in the evidence they stated the survey number as 63 and in written statement the mentioned the survey number as 61.

15.The lower Court didn't consider the factum that the plaintiffs proved their possession of the plaint schedule property.

The lower Court failed to consider the admission by DW.2 that the plaintiffs demanded Rs.3,00,000/- during cross-examination and it alludes that the plaintiffs have been in possession and enjoyment of the plaint schedule property. The lower Court ought to have considered Ex.A1 which is a registered sale deed where under the plaintiffs have been claiming right, title and possession. The lower - 7 -

Court failed to give any weight to the photographs exhibited as A6 to A10. The observation made by the lower Court regarding identity of the property is erroneous. The lower Court ought to have considered the admission made by DW.1 in her evidence i.e.

in the affidavit filed in lieu of examination-in-chief and in paragraph 6 that the boundaries mentioned in the plaint schedule are correct.

16.Given, the appeal grounds and contentions of the parties to the suit, the points for determination are :-

1. Whether the plaintiffs have established that the plaint schedule property is the property situated on the

South West corner of acres 3.35½ cents purchased under a registered sale deed by Baliji Pydayya, Baliji

Simhachalam and Baliji Ramulu and whether the same was left undivided by the legal heirs of the above mentioned three persons after making partition of acres 3.35½ cents of land ?

2. Whether the plaintiffs have established that they have been in possession and enjoyment of the plaint schedule land ?

3. Whether the plaintiffs are entitled for permanent injunction as prayed for ?

4. Whether the judgment of the lower Court needs any interference ?

17.Points 1 and 2 :To shore up their contention, the plaintiffs examined the 1st plaintiff as PW.1. Baliji Pydiraju, the 1st plaintiff filed affidavit in lieu of examination-in-chief affirming the facts averred in the plaint that Baliji Pyadayya, Baliji - 8 -

Simhachalam and Baliji Ramulu purchased acres 3.35 ½ cents of land in survey No.62/1A and 62 B to E situated at Venkatapuram

Village under a registered sale deed. He further affirmed that subsequent to the death of the above mentioned three persons, the said property was divided among their legal heirs leaving the plaint schedule property on the South West corner and another strip of land admeasuring 5 cents on the North East corner. There used to be a soap nut tree in the plaint schedule property.

18.It was elicited in the cross-examination Baliji Appala

Swamy is the grandfather of the defendants, Pydayya and

Appalaswamy are the cousins and they are not consanguine brothers. The extent of the plaint schedule property is 135sq.yds.

and it is a part of the land extending acres 3.35½ cents covered by

Ex.A1 sale deed. After purchasing the property under Ex.A1, the plaintiffs got the land surveyed. He also admitted that he has no objection to get the land surveyed again to know whether it is a property covered by Ex.A1. He further admitted that after purchasing property under Ex.A1 the land was partitioned among his grandfather Pydayya, the defendants' grandfather Appala

Swamy, Simhachalam and Ramulu and the above mentioned four persons got acres 1.10 cents each in the said partition. After falling of acres 1.10 cents of land to the share of Appala Swamy, the defendants' father sold away his share, himself and legal representatives of Simhachalam and Ramulu signed the document as vendors.

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19.As seen from the aforementioned facts elicited in the cross-examination, it is evident that Appala Swamy, the grandfather of the defendants got acres 1.10 cents of land in the partition among the co-owners of Ex.A1 viz. Pydayya, Simhachalam and

Ramulu. It is, therefore, incumbent on the plaintiffs to establish that the entire land was not partitioned and during the said partition 135sq.yds. of site was left on the South West corner and so also 5 cents of land was left on the North East corner as averred in the plaint. Except the ipsi-dexit of PW.1 no such evidence is forthcoming to establish the said fact. The learned advocate for the defendants adroitly argued that no proof whatsoever was placed by the plaintiffs to establish the said fact. I do not find any substance in the said contention since, it is a case where one tenement i.e.

entire extent of acres 3.35½ cents was partitioned among the co- owners after purchasing the same under Ex.A1 into four bits and each of the co-owners got acres 1.10 cents as per the admission of

PW.1 during cross-examination and after leaving the plaint schedule property on the South West corner and another strip of land admeasuring 5 cents on the North East corner. I, therefore, hold that no entry can be incorporated in any revenue record regarding those two bits of land which are very small in extent unless it is specifically brought to the notice of the revenue authorities about the division of property among the co-owners by leaving a small strip of land extending 135sq.yds. of acres 3.35 ½ cents. A separate sub-division number shall be given on giving such information to the revenue authorities and then only necessary - 10 - entries will be incorporated in revenue records. There is no such cross-examination and the plaintiffs also didn't state about the said fact, in such a case no documentary evidence can be let in to prove the exclusive possession of the suit land by the plaintiffs but it doesn't absolve the burden of the plaintiffs to show that the plaint schedule land which is a small strip of land out of acres 3.35½ cents covered by Ex.A1 is part and parcel of said land. In fact, there was a cross-examination regarding the said aspect and PW.1 reported no objection to get it resurveyed but the plaintiffs didn't make any endeavour to get the land surveyed in order to establish it is part and parcel of the land covered by Ex.A1. It cannot be lost sight of the defendants took a specific plea that it is a banjar land vested in Government and it is popularly known as kamsali manyam and it is situated in survey No.61. Of course, there is incompatibility in the evidence of DWs.1 to 6 regarding survey number for they deposed it is survey No.63 and whereas, it was averred in the written statement filed by defendants 3 and 4, it is survey No.61. The mere inconsistency in the survey number does not take away the efficacy of their evidence and also the efficacy of the averments of the written statement for they specifically pleaded it is a banjar land vested in Government and locally known as kamsali manyam. I, therefore, hold the plaintiffs are obliged to dispel the doubt regarding the identity of the land and they didn't take any step whatsoever to establish the said fact. They didn't take any plausible explanation and they remained passive for the reasons best known to them.

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20.There is no gainsaying of the fact that Ex.A1 is the sale deed evidencing the purchasing of acres 3.35½ cents of land. The defendants admitted the said fact but the fact that the suit property extending 135sq.yds. is a part and parcel of the suit property remained not proved for no evidence whatsoever was let in to establish the said fact. Conceding for arguments sake that the suit property is a part and parcel of the land covered by Ex.A1 sale deed, Appala Swamy, the grandfather of the defendants got acres 1.10 cents of land out of acres 3.35½ cents during partition as per the evidence of PW.1, in such a case the defendants being the grand children of Appala Swamy, they are entitled for a share in the plaint schedule land which is yet to be partitioned. I, therefore, find nothing bizarre in the finding given by the trial Court regarding the said aspect. I, therefore, hold that the evidence of PW.1 is or no avail to establish the fact that the suit land is a part of the property covered by Ex.A1.

21.PW.2 is an independent witness. He corroborated the evidence of the plaintiffs by filing affidavit in lieu of examination-in- chief. It was elicited in the cross-examination the 3 ½ acres of land was partitioned and he didn't know the details of partition. The father of the plaintiffs by name Pydayya purchased the said property. He didn't know whether China Ramulu and Peda Ramulu are the sons of Appala Swamy. As seen from the overall evidence of this witness, he admitted his ignorance about the details of partition and the extent of the land fell to the share of each co- owner and whether Appala Swamy and Simhachalam are the - 12 - brothers of Pydayya i.e. the father of the plaintiffs. He gave his most favourite answer “I do not know” regarding all material aspects touching the identity of the land and whether the suit land is part and parcel of the acres 3.35 ½ cents of land. I, therefore, hold his evidence does not inspire confidence.

22.Ex.A2 is the report given to the police. Exs.A3 to A5 are the copies of caveat petitions filed by the defendants. Exs.A6 to A10 are photographs. Exs.A3 to A5 caveat petitions are filed to show that there is incompatibility regarding survey number when they are juxtaposed with the written statement and evidence of

DWs.1 to 6. The defendants are not consistent in their version regarding survey number of the land claiming possession. They pleaded in the written statement the survey number as 61 they mentioned the survey number as 62/1A, in the caveat petitions and whereas, they stated in their evidence the survey number as 63.

But, they are emphatic regarding the fact that it is a Government land locally known as kamsali manyam extending 2 cents. I, therefore, hold the inconsistency regarding survey number does not take way the efficacy of their evidence and thus Exs.A3 to A5 are of no avail to prop up the plaintiffs contention.

23.Exs.A6 to A10 are photographs. There is no dispute regarding the land shown in the photographs and the dispute is that it is a Government land and not a part of the land covered by

Ex.A1. The Court cannot come to any conclusion regarding the identity of the land basing on Exs.A6 to A10 photographs. I, - 13 - therefore, hold Exs.A6 to A10 are of no avail to fillip the plaintiffs' contention.

24.As seen from the cross-examination of DWs.1 and 2, it is palpable and transparent that they are precarious about the survey number of the land locally known as kamsali manyam vested in Government. They deposed the survey number as 63 and whereas, they averred in the written statement the survey number

as 61. DW.1 mentioned the boundaries in her evidence she was

examined by an advocate commissioner pointed out by the Court.

As seen from the evidence of DWs.1 and 2, their evidence is consistent and cogent all through regarding the identity of the land and they are emphatic that it is a land vested in Government occupied by their father long back and ever since they have been in possession and enjoyment of the suit land. Undoubtedly, DW.2 i.e.

the 3rd defendant admitted in the cross-examination, there used to be a soap nut tree and the yield of the said tree was being enjoyed by the plaintiffs and their used to be a well and it was used for cultivation. Basing on the said admission, the plaintiffs adroitly argued that the identity of the suit property is established. It cannot be lost sight of the said admission cannot be read in isolation and it should be read as a whole. As seen from the facts elicited before and after the admission, it is evident that the witness denied the identity of the suit land stating that the suit land is not part of the property covered by A1 and he also stated that his father used to share the yield of soap nut trees along with the plaintiffs. I, therefore, hold the admission relied on by the plaintiffs - 14 - is truncated and it is not the whole admission. The whole admission made by the witness confutes the evidence of PWs.1 and 2 and so also the averments of the plaint.

25.It is very much there in his evidence that the plaintiffs demanded the defendants for Rs.3,00,000/- but it does not mean that the plaint schedule property was in possession of the plaintiffs, no inference whatsoever can be drawn regarding the enjoyment of the property or the identity of the property basing on such admission. I, therefore, find no substance in the contention of the plaintiffs. The overall evidence of DWs.1 and 2 inspires confidence for the reasons mentioned supra.

26.DW.3 deposed startling facts by filing the evidence affidavit in lieu of examination-in-chief. He submitted that there is a gedda covered by survey No.63 and there is a vacant land admeasuring 2 cents in between the said gedda and 3 feet path way. It was gifted to 4h defendant since she became widow and helpless woman. This topography was not disclosed elsewhere either in the written statement or in the evidence of DWs.1 and 2.

Moreover, he retired from service in the seventh month of 2012 and as seen from his evidence, he didn't know the purpose of filing of the suit and he gave evidence at the request of DWs.1 and 2 and he didn't know the contention of the defendants. I, therefore, hold that the lower Court rightly didn't give any significance to the evidence of this witness. So also DW.4 deposed the topography of the suit property as stated by DW.3. He deposed that the suit property is locally known as chakali manyam and whereas, DWs.1 - 15 - and 2 stated that it is locally known as kamsali manyam. There is wide divergence in the evidence of this witness and DWs.1 and 2.

I, therefore, hold it is not safe to rely on his evidence.

27.DW.5 came to the village one year back from Kuwait.

He didn't read the documents and the plaint averments. He didn't go through the averments of the written statement. He stated that the suit land is covered by survey No.63. He didn't explain how long he stayed in Kuwait. I, therefore, find substance in the contention of the plaintiffs that this gentleman readily obliged the defendants 1 and 2 and gave evidence affidavit to please them. It cannot be lost sight of he is a labourer and there is no necessity for him to know the checkered history of suit property and also the survey numbers. But, he mentioned the survey number albeit he is a labourer attending the work in the village and it is quite against the stance of a common man. I, therefore, hold it is not safe to rely on his evidence.

28.DW.6 is an independent witness and he deposed he is the resident of Venkatapuram Village and he knows the plaintiffs' family and the defendants' family since 1999. It was elicited in the cross-examination, the facts mentioned in his evidence affidavit are based on enquiry held by him, it indicates that he didn't know personally how come the defendants have been in possession of the suit property and whether it is vested in Government as contended by the defendants. I, therefore, hold it is not safe to rely on his evidence.

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29.In view of the aforementioned discussion, I hold that the plaintiffs failed to establish that the suit property is part and parcel of acres 3.35 ½ cents of land covered by Ex.A1 and it is the undivided and left strip of land after making partition of acres 3.35½ cents of land among the co-owners. The plaintiffs failed to establish their possession on the date of filing of the suit. I,

therefore, answer these points in negative and against the

plaintiffs.

30.Point No.3 : In view of the discussion on points 1 and 2, I hold the plaintiffs are not entitled for the relief of permanent injunction as prayed for. This point is answered accordingly.

31.Point No.4 : In view of the discussion on points 1 to 3, I do not find any reason to interfere with the finding of the lower Court. This point is answered accordingly.

32.In the result, the appeal is dismissed. Costs follow the event.

Dictated to the Stenographer Grade-II, transcribed by her,

corrected and pronounced by me in open Court, this the 4th day of April, 2018.

Sd/- U.SATYA RAO

II ADDL. DISTRICT JUDGE,

VISAKHAPATNAM.

Appendix of Evidence

No additional oral or documentary evidence is adduced on either side.

Sd/- U.SATYA RAO

II ADJ, VSP.

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IN THE COURT OF THE II ADDL. DISTRICT JUDGE,

VISAKHAPATNAM.

Present : Sri.U.Satya Rao II Addl. District Judge, Visakhapatnam.

Friday, this the 6th day of April, 2018

O.S.49/2010

Between: Sri.Veluri Suryabhagavanulu, S/o Sreerama Murthy, Hindu, aged 45 years, residing at L.Kota Mandal, Vijayanagaram District.

... Plaintiff

And :

1. Yerra Apparao, S/o Demudu, Hindu, aged 40 years, resident of Rayapuvanipalem, Hamlet of Rajayyapeta, Pendurthy, Visakhapatnam.

2. Dogga Umashankar, S/o Simhachalam, Hindu, aged about 41 years, Near Pendurthy Railway gate, Pendurthy, Visakhapatnam.

... Defendants

This suit is coming on 23-03-2018 before me in the presence of Sri.B.S.S.T.Srinivas, Advocate for the Plaintiff and of

Sri.V.V.R.Prasad, Advocate for the defendants and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.This is a suit filed to direct the defendants to refund the advance money along with interest and damages.

2.The material averments stemming from the plaint are :- The defendants made believe the plaintiff that they jointly purchased the plaint schedule land extending acres 8.26 cents situated at Mudapaka Village and they have been in peaceful possession and enjoyment of the same. They proposed to sell the suit land and the plaintiff offered and they accepted the same.

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They accepted to sell away the suit land at the rate of Rs.5,200/- and the total consideration was arrived at Rs.42,95,200/-. They entered into an agreement in writing on 03-01-2007 to sell away the suit land and the plaintiff paid Rs.6,00,000/- as advance amount. He agreed to pay further advance amount of

Rs.4,00,000/- within 45 days there from. It was mutually agreed that the remaining sale consideration shall be paid within three months.

3.Eventually, the plaintiff could know that there are disputes regarding the suit property and it was not in possession of the defendants, one Sukhavasi family members are having right over the suit property and they have been in possession of the same. In fact, he questioned the defendants about the fraud committed by them and the defendants gave false assurances stating that they have been negotiating with Sukhavasi family members and the dispute will be resolved before long. They also assured the plaintiff that he need not pay the further advance amount as agreed under the agreement, dt.03-01-2007 until the dispute is resolved. Believing the said representation the plaintiff waited patiently all these days. Of late, the plaintiff could know that the defendants have neither right nor title in the suit property and Sukhavasi people alone are having right and title and they got erected a fencing all along the suit schedule property.

4.The plaintiff, therefore, demanded the defendants to return the amount in the presence of elders and the defendants admitted their mistake and promised to refund the amount with

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interest. The defendants have been dodging the matter. The plaintiff, therefore, got issued a notice to the defendants on 26-11- 2009 demanding them to refund the advance amount with interest and to pay damages of Rs.2,00,000/-.

5.Though the plaintiff is entitled to seek for the relief of specific performance since the defendants have neither right nor title in the suit property, there is no possibility of execution of the contract and thus he is seeking the relief of refund of money with damages. Hence, the suit.

6.The 1st defendant filed written statement denying the material averments and admitting the execution of the agreement and payment of advance amount of Rs.6,00,000/- and so also the terms and conditions of the agreement of sale, dt.03-01-2007. The plaintiff didn't fulfill the conditions of the agreement and thus the agreement is not maintainable and the plaintiff is not entitled for any relief sought for in the suit. The entire record regarding the suit property is clear and the plaintiff has no money with him to perform his part of contract and he dodged the matter in getting the registered sale deed. The plaintiff has been making false allegations without any proof and proclaiming that the defendants deceived him. In fact, he paid small chunk of sale consideration.

The defendants demanded the plaintiff by going to his house on many occasions and requested him to get the sale deed registered but the plaintiff has been postponing the matter on one pretext or the other. Since the plaintiff failed to pay the remaining sale consideration within stipulated period he is not entitled for any of

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the reliefs. The time is the essence of the contract and the plaintiff could not keep his promise within time stipulated period of the agreement. The suit is barred by limitation and not maintainable under law. The defendants sustained huge loss due to the failure of the plaintiff to pay the sale consideration within stipulated time.

There is neither demand nor notice from the side of the plaintiff as averred in the plaint. In fact, the plaintiff disappeared after the suit agreement and he approached the Court with unclean hands.

7.The 2nd defendant filed memo adopting the written statement filed by 1st defendant.

8.On the strength of the aforementioned pleadings, the following issues were settled for trial :-

1. Whether the plaintiff's assertion that the defendants are not having title to the suit schedule property is true ?

2. Whether the plaintiff is entitled to recover all the

advances together with interest ?

3. Whether the plaintiff is entitled for damages of

Rs.2,00,000/- ?

4. To what relief ?

9.In the trial afforded to both the parties, the plaintiff examined himself as PW.1 and A1 to A9 were exhibited on his behalf. The 2nd defendant was examined as DW.1, one of the attestors to the agreement of sale Mudapaka Ramu was examined as DW.2. B1 to B10 were exhibited on behalf of the defendants.

10.The admitted facts are there was an agreement interse

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the plaintiff and defendants, dt.03-01-2007 and as per the said agreement, the sale consideration is Rs.42,95,200/- and the plaintiff paid Rs.6,00,000/- on the date of agreement itself as advance amount and agreed to pay Rs.4,00,000/- within 45 days there from as further advance and the remaining sale consideration within three months.

11.The disputed facts are the defendants have neither title nor right in the suit property the defendants made believe the plaintiff that they are having right and title in the suit property and played fraud on the plaintiff and later, the plaintiff could know that one Sukhavasi family members are having title and right in the suit property that the plaintiff demanded the defendants to refund the suit amount.

12.Issue No.1 :To shore up his contention, the plaintiff examined himself as PW.1, he filed affidavit in lieu of examination-in-chief affirming all the material averments of the plaint. The sale agreement, dt.03-01-2007 was exhibited as A1. It was elicited in the cross-examination, he was realtor before joining as VRO. He used to make himself sure about the details of landed property. He intended to purchase as a realtor. In the normal course, he verifies all the documents before purchasing a property and so also the nature of the property and it is photographed

before purchasing the same. He could not peruse any document

relating to the suit property before execution of the sale agreement. He was shown the suit property by the defendants, he asked for relevant documents after execution of sale agreement

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and he was told by the defendants that they didn't bring the documents. It was recited in Ex.A1 sale agreement how come the suit property was devolved to the defendants. On verification, he could know that there was a document standing in the name of one

Visweswara Rao relating to the suit property and he could further know that there is no document standing in the name of the defendants relating to the suit property. On further verification of revenue records, he could know the suit land stands in the name of persons having surname Sukhavasi and they have been in possession and enjoyment of the same.

13.As seen from the aforementioned facts elicited in the cross-examination, it is obvious that the plaintiff is a VRO and

before joining as a VRO, he is a realtor. He had the experience of

making enquiry about the title of any property proposed for sale by third parties and as a realtor he used to make himself sure about the title by verifying the relevant documents. But, in the present case, he didn't verify the documents while making offer to purchase the property or at least at the time of signing Ex.A1 agreement, he gave a lame excuse for not doing so though he was told by the defendants that they didn't bring the title deeds. Only naive people would believe such version. It cannot be lost sight of that he is a realtor and on his own show it is evident that he used to verify all the documents before purchasing any property but he has given a go bye to such a invaluable and indispensable precaution as a realtor and simply believed the defendants and didn't insist for the title deeds even at the time of entering into agreement. It is

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against the stance of a common man much less a realtor like the plaintiff. I, therefore, find substance in the defendants' contention that this is a lame excuse offered by the plaintiff to gloss over the latches on his part.

14.He deposed that he verified the document subsequent to the execution of Ex.A1 agreement and he could know there was one document in the name of Visweswara Rao relating to the suit property but he failed to divulge the source of such information or the document evidencing that one Visweswara Rao is the title holder of the suit property. His evidence that he verified the revenue records and he could know that members of Sukhavasi family have been in possession of the suit property. He is a VRO and he knows the details of relevant documents evidencing the possession of a landed property. He didn't file any document said to have been verified by him evidencing the possession of the suit property by members of Sukhavasi family. It probabilizes the defendants' contention that all these pleas were taken by the plaintiff to paper over the short comings on his part and in fact he was not ready with cash to pay the sale consideration or further advance amount as stipulated in the Ex.A1 agreement.

15.It was further elicited in the cross-examination of PW.1, when he personally went to the field to verify the boundaries, some farmers raised demur claiming title to themselves and the defendants didn't come there despite his request. This is a startling fact albeit a material fact which was not averred in the plaint and he didn't divulge the names of the farmers, the timing and the date

­ 8 ­

when he visited the suit land. It is very much there in the cross- examination that he could know the suit land does not belong to the defendants in the year 2007 but he was dormant till 26-11- 2009 i.e. for two years without giving any notice to the defendants demanding to return the advance amount. He woke up from the long slumber two years after the execution of the agreement and after coming to know that the defendants have no title over the suit property. No plausible explanation is forthcoming to remain passive for those two years and the insouciance is against the prudent stance of a realtor and a VRO like the plaintiff. I find substance in the defendants' contention, all the aforementioned reasons given by the plaintiff are insinuations just to circumvent the fact he failed to pay further advance amount of Rs.4,00,000/- within stipulated time and the remaining sale consideration within three months thereafter. Had really, the plaintiff had gone through any document evidencing that one Visweswara Rao is the owner of the suit property or the members of the Sukhavasi family are in possession of the suit property, he would have mentioned the details of those documents albeit, he could not file the copies of those documents. He neither gave explanation nor explained the reasons to withhold those details. As seen from the plaint averments, he demanded the defendants to return the advance amount in the presence of elders and the defendants admitted their mistake and promised to refund the amount but he didn't examine any of the elders said to have been present at the time of demanding the defendants and the admission said to have been

­ 9 ­

made by the defendants regarding the mistake crept in. In the absence of those details, I do not find any reason to shelve the defendants' contention that all those pleas are mere insinuations to surmount the dodging of payment of advance money and remaining sale consideration as stipulated in the sale agreement. The plaintiff even failed to mention about his inability to examine the persons concerned after filing the documents divulging some other persons are the owners of the suit property and not the defendants. The burden is heavy on the plaintiff in the backdrop of copious documentary evidence let in by the defendants establishing their title and possession. In this context, I earnestly feel it is sagacious to go through the oral and documentary evidence let in by the defendants establishing their title and possession.

16.To prove their contention the defendants examined the 2nd defendant as DW.1. He exhibited the registered sale deeds, dt.21-02-2005, 04-04-2005 and 04-04-2005 as B1 to B3. As seen from Exs.B2 and B3 both the defendants jointly purchased the suit property from Kuncham Visweswara Rao i.e. the so called

Visweswara Rao referred in the evidence of PW.1. There is no cross-examination regarding the genuineness of those documents nor the plaintiff disputed the execution of those sale deeds in favour of the defendants by Visweswara Rao. Per contra, he himself admitted in the cross-examination that Visweswara Rao is the owner of the suit property. I, therefore, hold the documentary evidence i.e. the sale deeds let in by the defendants confute the plaintiff's evidence that he could know the defendants are not the

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owners of the suit property. The ownership passbooks and patta passbooks issued in favour of the defendants were exhibited as B4 to B10. As seen from Ex.B4 to B10 patta passbooks and ownership passbooks, the defendants have been in possession and enjoyment of the suit property. There is no cross-examination regarding the genuineness of those documents, they are public documents and the Court cannot go beyond the public document unless it is established that the entries therein are tampered or those records are fabricated. I, therefore, hold Exs.B1 to B10 documents establish the title and possession of the defendants. The documentary evidence let in by the defendants confute the entire evidence of the plaintiff regarding the the title and possession of the suit property and it is evident that he belied out and out after taking oath and he has no regard for truth. Nothing concrete was elicited in the cross-examination of DW.1 to disdain his evidence.

His evidence by and large relates to the documentary evidence and his evidence corroborated the documentary evidence and I, therefore, hold his evidence inspires confidence.

17.DW.2 is one of the attestors to Ex.A1 agreement. He deposed that the plaintiff didn't fulfill his part of contract despite demands made by the defendants to get ready for registration by paying the remaining sale consideration. The plaintiff postponed the event on one pretext or the other. It was elicited in the cross- examination, the defendants didn't get the land surveyed by the

Government surveyor after purchasing the same. He didn't know the survey number of the suit property, the plaintiff met the

­ 11 ­

defendants and him outside the plaintiff's house at Kothavalasa and told the defendants that he would come later. He could know that the plaintiff has not been coming forward for registration of the sale deed. The aforementioned facts clinchingly establish that the defendants approached the plaintiff and demanded him to come forward for registration of the sale deed. Nothing concrete was elicited in the cross-examination to shelve his evidence. I do not find any unnaturality in the evidence of this witness, his evidence inspires confidence.

18.In view of the aforementioned discussion, I answer this issue in negative and against the plaintiff.

19.Issue No.2 :In view of the discussion on issue No.1 and since the plaintiff failed to establish that the defendants have neither title nor right in the suit property and since the defendants could establish their title and possession by adducing copious documentary evidence, I hold the plaintiff failed to come forward for registration of the sale deed by paying the remaining sale consideration within stipulated time. Moreover, by incisive cross- examination of PW.1, the defendants could establish that the plaintiff belied out and out after taking oath and all the reasons given by the plaintiff for non-payment of further advance amount and remaining sale consideration are false to the core. I, therefore, hold the plaintiff was not ready and willing to perform his part of contract at any time.

20.Since the amount of Rs.6,00,000/- paid by the plaintiff is an advance amount, the defendants cannot refuse to refund that

­ 12 ­

advance amount. Moreover, there is a covenant in the agreement itself, in case of failure to pay the remaining sale consideration within three months as agreed in the said agreement, the defendants undertook to refund the advance amount after expiry of the three months without interest. I, therefore, hold the defendants are obliged to return the advance amount without interest. This issue is answered accordingly.

21.Issue No.3 :In view of the discussion on issues 1 and 2, I hold that there are latches on the part of the plaintiff and he was never ready and willing to perform his part of contract at any time after execution of the agreement and thus he is not entitled for any damages much less Rs.2,00,000/- as prayed for. I,

therefore, answer this issue in negative and against the plaintiff.

22.Issue No.4 :In the result, the suit is decreed in part with proportionate costs directing the defendants to refund advance amount of Rs.6,00,000/- within one month hence failing which the plaintiff is entitled for interest at the rate of 6% per annum from the date of decree.

Dictated to the Stenographer Grade-II, transcribed by her,

corrected and pronounced by me in open Court on this the 6th day of April, 2018.

Sd/- U.SATYA RAO

II ADDL. DISTRICT JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff :For Defendants : PW.1 : V.SuryabhagavanuluDW.1 : D.Umasankar DW.2 : M.Ramu

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DOCUMENTS MARKED

For Plaintiffs : Ex.A1 is the sale agreement, dt.03-01-2007. Ex.A2 is the office copy of notice, dt.26-11-2009. Ex.A3 is the postal receipts. Ex.A4 is the returned envelop cover. Ex.A5 is the certified copy of cultivation account for the fasili 1427 regarding survey No.59/2. Ex.A6 is the certified copy of cultivation account for the fasili 1427 regarding survey No.97/3. Ex.A7 is the certified copy of cultivation account for the fasili 1427 regarding survey No.97/5. Ex.A8 is the certified copy of cultivation account for the fasili 1427 regarding survey No.97/7. Ex.A9 is the certified copy of cultivation account for the fasili 1427 regarding survey No.97/2.

For Defendants : Ex.B1 is the certified copy of sale deed, dt.21-02-2005. Ex.B2 is the certified copy of sale deed, dt.04-04-2005. Ex.B3 is the certified copy of sale deed, dt.04-04-2005. Ex.B4 is the ownership deed, dt.02-10-1996. Ex.B5 is the ownership deed, dt.09-09-1996. Ex.B6 is the pattadar passbook issued in the name of Mukku Subrahmanyam. Ex.B7 is the pattadar passbook in favour of 1st defendant. Ex.B8 is the ownership passbook in favour of 1st defendant. Ex.B9 is the pattadar passbook in favour of 2nd defendant. Ex.B10 is the ownership passbook in favour of 2nd defendant.

Sd/- U.SATYA RAO

II ADJ/VSP.

- 1 -

IN THE COURT OF II ADDL. DISTRICT JUDGE ::

VISAKHAPATNAM

Present : Sri.U.Satya Rao II Addl. District Judge, Visakhapatnam.

Saturday,this the 7th day of April, 2018

A.S.NO.31/2013

Between :

1. Karri Narasayyamma, W/o Suri Babu, Hindu, aged 54 years, residing at D.No.65-3-164, Hanuman Nagar, Visakhapatnam.

2. Dunna Pydi Raju, S/o late Sanyasappadu, Hindu, aged 49 years, residing at D.No.65-3-164, Hanuman Nagar, Visakhapatnam.

3. Dunna Varalaxmi, W/o Dunna Pydi Raju, Hindu, aged 44 years, residing at D.No.65-3-164, Hanuman Nagar, Visakhapatnam.

4. Dunna Bulli Babu, S/o late Sanyasappadu, Hindu, aged 45 years, residing at D.No.65-3-164, Banuman Nagar, Visakhapatnam. … Appellants

And :

1. Vunduru Devudamma, W/o Venkata Ramana, Hindu, aged 51 years, residing at D.No.65-3-159, Hanuman Nagar, Visakhapatnam.

2. Greater Visakhapatnam Municipal Corporation, rep. by its Commissioner, Visakhapatnam. (D5 added as per orders in I.A.320/2010, dt.14-06-2011). … Respondents

This appeal is filed by the appellants, aggrieved by the Decree & Judgment, dated 09-10-2012 passed by the I Addl. Junior Civil

Judge, Visakhapatnam in O.S.696/2008.

Between : Vunduru Devudamma, W/o Venkata Ramana, Hindu, aged 51 years, residing at D.No.65-3-159, Hanuman Nagar, Visakhapatnam. … Plaintiff

And :

1. Karri Narasayyamma, W/o Suri Babu, Hindu, aged 55 years, residing at D.No.65-3-164, Hanuman Nagar, Visakhapatnam.

2. Dunna Pydi Raju, S/o late Sanyasappadu, Hindu, aged 49 years, residing at D.No.65-3-164, Hanuman Nagar, Visakhapatnam.

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3. Dunna Varalaxmi, W/o Dunna Pydi Raju, Hindu, aged 44 years, residing at D.No.65-3-164, Hanuman Nagar, Visakhapatnam.

4. Dunna Bulli Babu, S/o late Sanyasappadu, Hindu, aged 45 years, residing at D.No.65-3-164, Hanuman Nagar, Visakhapatnam.

5. Greater Visakhapatnam Municipal Corporation, rep. by its Commissioner, Visakhapatnam. (D5 added as per orders in I.A.320/2010, dt.14-06-2011). … Defendants

This appeal is coming on 21-03-2018 for final hearing before me in the presence of Sri.R.Parameswara Rao, Advocate for the

Appellants and of Sri.B.Jagadeeswara Rao, Advocate for 1st

Respondent and of Sri.Y.Ch.Dora, Advocate for 2nd Respondent and the matter having stood over for consideration till this day, this

Court delivered the following:

J U D G M E N T

1.This is an appeal preferred by the unsuccessful defendants 1 to 4 against the decree and judgment, dt.09-10-2012 in O.S.696/2008 passed by the I Addl. Junior Civil Judge,

Visakhapatnam.

2.The suit was filed originally against four defendants for permanent injunction restraining the defendants and their men from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. Later, 5th defendant i.e.

Greater Visakhapatnam Municipal Corporation represented by its

Commissioner was added vide separate order in I.A.320/2010, dt.14-06-2011 and the plaint was amended as per the order in

I.A.139/2010, dt.14-06-2011 and the reliefs of mandatory injunction, damages of Rs.50,000/- and permanent injunction are sought for.

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3.The parties are arrayed as depicted in the suit for the sake of convenience.

4.The material averments stemming from the plaint are :- The plaintiff is the absolute owner of the property extending 157sq.yds. in survey Nos.55 and 61 of Mulagada Village. There was a house bearing door No.65-3-159 in the said property and it is situated at Hanuman Nagar, Malkapuram and within the limits of

Greater Visakhapatnam Municipal Corporation, Visakhapatnam.

The suit property was assigned to the plaintiff vide proceedings bearing R.C.No.452, dt.08-07-2003 of Mandal Revenue Officer (Urban), Visakhapatnam. The plaintiff occupied the suit property in the year 1980 and got constructed a thatched house therein and ever since she has been in peaceful possession and enjoyment of the same. It is a hill poramboke, she was given power consumption services connection bearing S.C.No.3744 and the property was assessed for tax purpose and she has been paying the tax to the

Greater Visakhapatnam Municipal Corporation. Subsequently, the

Government decided to issue patta/assignment orders to the occupiers in that locality and accordingly Mandal Revenue Officer (Urban) issued patta to the plaintiff recognizing her possession and enjoyment of the suit property. Ever since, the plaintiff has become absolute owner of the suit schedule property and she has been in possession and enjoyment of the same with absolute rights.

5.While so, on 30-07-2008 all the defendants attempted the demolition of suit schedule property on the premise that they want to form a road on the Northern side of the suit schedule - 4 - property by demolishing the house of the plaintiff and the drainage.

The plaintiff could rebuff their attempts with the help of their neighbours, she apprehends that the defendants may come at any time to demolish her house and hence, the suit.

6.4th defendant filed written statement denying the material averments of the petition and submitting that the residents of the locality submitted a representation to the M.L.A. stating that they have been suffering for the last two decades due to the unauthorized encroachment made by the plaintiff in the road portion. Responding the said representation the M.L.A. endorsed necessary action to the Assistant City Planner, Zone-IV, Greater

Visakhapatnam Municipal Corporation. The residents of the locality also submitted a representation to the Commissioner, Greater

Visakhapatnam Municipal Corporation with a request to remove the encroachment and provide road in the interest of the public. In pursuance of said representation, the Building Inspector, Town

Surveyor and Assistant City Planner made an enquiry and they inspected the suit locality and opined that the plaintiff encroached 2½ feet road portion and got constructed a thatched house therein taking undue advantage of construction of drain by Greater

Visakhapatnam Municipal Corporation. They made an attempt to remove the encroachment on the road portion on 26-06-2008 and in that context, the plaintiff gave an undertaking to remove the encroachment on her volition on 27-06-2008. The photostat copy was annexed to the written statement.

- 5 -

7.Later, the plaintiff approached the Court suppressing the real facts and obtained interim order in I.A.778/2008 in

O.S.696/2008, dt.01-08-2008. The suit is bad for non-joinder of

necessary party i.e. Greater Visakhapatnam Municipal Corporation,

Visakhapatnam represented by its Commissioner. There is no cause of action to file the suit.

8.Defendants 1 to 3 filed memo adopting the written statement filed by 4th defendant.

9.On the strength of the aforementioned pleadings, the following issues were settled for trial :-

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

2. Whether the suit is bad for non-joinder of necessary parties as contended by defendant in written statement ?

3. To what relief ?

10.Later, the plaintiff sought for amendment of the plaint and also filed petition to add the Greater Visakhapatnam Municipal

Corporation, Visakhapatnam represented by its Commissioner as 5th defendant. 5th defendant was added as per the order passed in I.A.320/2010, dt.14-06-2011. Since the house of the plaintiff was demolished after filing of the suit, she sought for amendment of the plaint and she also sought for the reliefs of mandatory injunction and damages besides the relief of permanent injunction and that petition was allowed and the amendment was carried out as per the order in I.A.139/2010, dt.14-06-2011. The Court fee was paid.

- 6 -

11.5th defendant remained exparte.

12.The 4th defendant filed an additional written statement stating the plaintiff is an encroacher in respect of road portion and the defendants being the residents of that locality are the sufferers.

13.The defendants 1 to 3 filed memo adopting the

additional written statement filed by 4th defendant.

14.On the strength of the aforementioned pleadings,

additional issues were framed as under :-

1. Whether the plaintiff is entitled to get the mandatory injunction as prayed for ?

2. Whether the plaintiff is entitled for damages of

Rs.50,000/- from the defendants ?

15.In the trial afforded to both the parties, the plaintiff examined herself as PW.1 and one Akula Nirmala was examined as

PW.2, Exs.A1 to A18 were marked on behalf of the plaintiff. 4th defendant was examined as DW.1, one Yedukondalu, Peela

Suhasini and D.Srinivasa Rao were examined as PWs.2 to 4 on behalf of defendants. Exs.B1 to B5 and Exs.X1 to X9 were marked.

16.Given the evidence let in by the parties to the suit, the lower Court passed the impugned judgment against which the present appeal was preferred.

17.As seen from the appeal grounds, the lower Court ought to have considered that the defendants clearly established their case by exhibiting X9 i.e. notice issued U/Sec.452 of H.M.C.Act by

Greater Visakhapatnam Municipal Corporation, Visakhapatnam and by exhibiting B2 undertaking letter given by plaintiff, dt.26-06-2008 to remove the encroachment. The lower Court didn't consider - 7 -

Exs.B1 to B5 in right perspective, Exs.B1 to B5 clearly establish laying of road after removing encroachments in that area. The lower Court ought to have considered that the personnel of Greater

Visakhapatnam Municipal Corporation and police personnel were present at the time of removing encroachment as per Ex.B5. The lower Court ought to have considered Exs.A16 to A18 are in no way conducive to establish the plaintiff's contention. The lower Court ought to have considered at the time of filing O.S.514/1995, the plaintiff was not assigned any land nor she was in possession of the property in the year 1995.

18.Given, the appeal grounds and contentions of both the parties to the suit, the points for determination are :-

1. Whether 5th defendant-Greater Visakhapatnam

Municipal Corporation or the defendants 1 to 4 are entitled to remove the encroachment on the mere ground that the plaintiff didn't keep her promise to remove the encroachments after giving letter of undertaking to 5th defendant ?

2. Whether the defendants are entitled to form a road by forcibly demolishing the alleged encroached portion by the plaintiff ?

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

4. Whether the plaintiff is entitled for damages ?

5. Whether the plaintiff is entitled for perpetual injunction as prayed for ?

- 8 -

6. Whether the judgment of the lower Court needs any interference ?

19.Points 1 and 2 :To shore up her contention, the plaintiff examined herself as PW.1. She affirmed all material averments of the plaint, she was emphatic in her evidence that she occupied the plaint schedule property which is a hill poramboke in the year 1980 and got constructed a thatched house therein. She was given power consumption service connection bearing No.3744 to the said thatched house and it is being assessed for payment of tax by Greater Visakhapatnam Municipal Corporation.

Subsequently, the Government decided to issue patta/assignment orders to the encroachers in that locality and accordingly Mandal

Revenue Officer (Urban) issued proceedings recognizing her possession to prop up her contention. She adduced documentary evidence, the power consumption payment bills were exhibited as

A1 to A3, the letter issued by the then Chief Minister, dt.30-06- 1991 evidencing granting of patta to encroachers and proceedings issued by the Greater Visakhapatnam Municipal Corporation, dt.30- 06-1991 evidencing granting of patta to encroachers and proceedings issued by the Greater Visakhapatnam Municipal

Corporation, dt.30-05-1999 and the original proceedings issued by

Mandal Revenue Officer, dt.08-11-2003 granting patta in favour of the plaintiff were exhibited as A4 to A6 respectively, tax passbook was exhibited as A7.

20.The defendants didn't stoutly deny the proceedings.

Their contention is that she encroached a portion of the road, she - 9 - has given undertaking to the Greater Visakhapatnam Municipal

Corporation on her volition to remove the said encroachment.

21.Per contra, the 4th defendant examined himself as

DW.1 and he exhibited the certified copy of the letter addressed by the Commissioner, Greater Visakhapatnam Municipal Corporation to

Station House Officer, Malkapuram and certified copy of the undertaking letter issued by the plaintiff to the Commissioner,

Greater Visakhapatnam Municipal Corporation, dt.26-06-2008 as B3 and B2 respectively. As seen from Ex.B2 undertaking given by the plaintiff, undoubtedly she gave the consent on her volition to remove the encroachment but she didn't remove the encroachment, it does not mean that the defendants are entitled to remove the encroachment without following due procedure. As seen from the overall evidence of DWs.1 to 4, the Greater Visakhapatnam

Municipal Corporation didn't initiate the proceedings on its own demanding the plaintiff to remove the encroachments and the proceedings were issued by the Commissioner on the representation made to the M.L.A. by the residents of the locality and the copy of the representation was exhibited as B1. As seen from Ex.B1 representation, the M.L.A. endorsed the same directing the Greater Visakhapatnam Municipal Corporation to take proper action. The 5th defendant-Municipality didn't issue any notice to the plaintiff demanding to remove the alleged encroachment nor it issued any notice before removing the alleged encroachment. Even as seen from the photographs exhibited by the defendants the personnel of Greater Visakhapatnam Municipal Corporation were - 10 - not found and the photographs indicate only the residents of the locality were there at the time of removing the alleged encroachment. Moreover, it is incumbent on the Greater

Visakhapatnam Municipal Corporation or the defendants to specifically mention the extent of the alleged encroachment made by the plaintiff and how come they arrived at the extent of encroachment. It is not as though that a survey was held before removing the alleged encroachment and the surveyor submitted his detailed report. Conceding for arguments sake that there is any such survey the copy of the report was not furnished to the plaintiff to enable her to know the correctness of the alleged encroachment.

As seen from the evidence of DW.1 and Ex.B1, the Greater

Visakhapatnam Municipal Corporation initiated proceedings only at the instance of the defendants and the M.L.A. and not on its own, it never issued any notice on its own to the plaintiff alleging that she encroached a part of the road. The evidence of DW.2 the Assistant

Engineer working in Greater Visakhapatnam Municipal Corporation divulges that there is no recorded evidence available with the

Corporation to say CC road was laid to some extent out of 23mts.

length by the Corporation. As per Ex.X5, the proposed width of the road is 1.2mts., there is a thatched house abutting the road at the disputed spot. He didn't know whether the road which is in existence as on today at the disputed spot is a road laid down on 22-10-2008 or not. He also admitted that Ex.X5 does not reveal that a road was formed in that area. Ex.X5 is the copy of the estimate, Ex.X3 is the site plan. He also made it very clear that - 11 -

Exs.X2 to X5 do not reveal that road was already in existence at the disputed spot.

22.DW.2 being the Assistant Engineer working in 5th defendant-Corporation, he is competent witness to speak about the existence of the road and as seen from his evidence he is precarious whether there was any road before the alleged encroachment said to have been made by the plaintiff. It is, therefore, discernible from his evidence that the defendants are prophetic in contending that there was a road and the same was encroached by the plaintiff causing hindrance and obstruction and inconvenience to the residents of that locality.

23.DW.3 is the Corporator of 47th Ward and he deposed that during his stint as Corporator from 26-02-2007 to 25-02-2012 he has not seen any record in Greater Visakhapatnam Municipal

Corporation regarding the existence of the road on the Northern side of the plaintiff's house. She also admitted that a road was laid down in an extent of three houses only. It probabilizes the contention of the plaintiff that her thatched house was removed highhandedly by the Greater Visakhapatnam Municipal Corporation at the instance of defendants only and not at the instance of residents of that locality. The evidence of PW.2 who is also the resident of that locality corroborated the evidence of PW.1 on all material fronts.

24.DW.4 is the Surveyor working in the 5th defendant-

Corporation, he deposed that a copy of notice was served

U/Sec.452 of H.M.C.Act on the husband of the plaintiff by name - 12 -

G.V.Ramana. He has no personal knowledge about Ex.X8 endorsement and Ex.X9 notice, dt.18-02-2008. He deposed that originally the entire hill area in which the plaint schedule property is situated is a poramboke land vested in Government. He never visited the plaint schedule property after assuming charge in T.P.S.

in Greater Visakhapatnam Municipal Corporation. The plaint schedule property is situated in 47th Ward and it is within his jurisdiction. There is no record available with the Greater

Visakhapatnam Municipal Corporation to say whether the area in which the plaint schedule property is located is within unapproved layout or regularized by the Government. Ex.X8 proceedings were issued basing on the complaint made by some individuals. He didn't know whether City Planner verified any record before passing orders. He also admitted that there is no record about the existence of Municipal road in the plaint schedule property. He also admitted no endorsement was made in Ex.X9 evidencing notice was served to the plaintiff or her husband.

25.All the aforementioned facts elicited in the cross- examination of DW.4 bespeak that the action of the defendants is hasty and highhanded and no reasonable opportunity was given to the plaintiff. Moreover, the evidence of DW.4 clinchingly establishes that the 5th defendant is precarious whether any notice was served to either the plaintiff or her husband before demolishing the structures in the plaint schedule property. 5th defendant-

Corporation is also precarious whether there is used to be any road in the plaint schedule property. It is, therefore, evident that the - 13 - defendants are hasty and intentionally demolished the constructions in the plaint schedule property without making themselves sure that those constructions are made after encroaching the road. For that matter, there is no record whatsoever to show that their used to be a road in that area where the plaint schedule property is situated. I, therefore, find no unnaturality in the evidence of PWs.1 and 2 and their evidence inspires confidence. The mere undertaking given by PW.1 to remove the encroachment on her own does not empower the defendants to demolish the constructions highhandedly without following the due procedure. I, therefore, find substance in the contention of the plaintiff. I do not find anything bizarre in the findings of the lower Court regarding this aspect. I, therefore, answer points 1 and 2 in negative and against the defendants.

26.Point No.3 : In view of the discussion on points 1 and 2, I hold the plaintiff is entitled for mandatory injunction as prayed for. This point is answered accordingly.

27.Point No.4 : The lower Court after considering the factual backdrop of the plaintiff's case and the defendants contention rightly awarded compensation of Rs.15,000/-. I, therefore, find no reason to interfere with the said finding. This

point is answered accordingly and in favour of the plaintiff.

28.Point No.5 : In view of the discussion on points 1 to 4, I hold that the plaintiff is entitled for perpetual injunction as prayed for. This point is answered accordingly.

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29.Point No.6 : In view of the discussion on points 1 to 5, I do not find any reason to interfere with the finding of the lower Court. This point is answered accordingly.

30.In the result, the appeal is dismissed with costs.

Dictated to the Stenographer Grade-II, transcribed by her,

corrected and pronounced by me in open Court, this the 7th day of April, 2018.

Sd/- U.SATYA RAO

II ADDL. DISTRICT JUDGE,

VISAKHAPATNAM.

Appendix of Evidence

No additional oral or documentary evidence is adduced on either side.

Sd/- U.SATYA RAO

II ADJ, VSP.

­ 1 ­

IN THE COURT OF THE II ADDL. DISTRICT JUDGE,

VISAKHAPATNAM.

Present : U.Satya Rao, II Addl. District Judge, Visakhapatnam.

Wednesday, this the 11th day of April, 2018.

I.A.241/2018 in O.S.8/2013

Between : Percy Paul Jetty, S/o Jetty Moses (L), Christian, aged 62 years, residing at Flat No.503, Vibhav Hills Apartments, VUDA Layout, Marripalem, Visakhapatnam. … Petitioner

And : Smt.Mercy Sucharita Prasad, W/o S.V.Prasad, aged 54 years, r/at D.No.13-2-13, Bhujangaraopeta, Visakhapatnam. … Respondent

This petition is coming on 10-04-2018 for hearing before me in the presence of Sri.D.Ravindra Nath, Advocate for Petitioner and of Sri.B.G.Chandra Sekhar, Advocate for Respondent and the matter having stood over for consideration till this day, this Court delivered the following :

O R D E R

1.This is a petition filed U/Or.VII R.14(3) of C.P.C. to receive the listed documents and to mark those documents on behalf of the petitioner/plaintiff.

2.The petitioner's case in precise is the petitioner is the plaintiff in the above referred suit. The suit was filed for partition of the suit property. As seen from the evidence of DW.1, the entire suit property stands in her name and she has been enjoying the same by paying taxes to the municipal corporation. He applied to the

Commissioner, G.V.M.C., Visakhapatnam to furnish the details of house tax relating to the suit property under Right to Information and he received the said information. He obtained certified copy of the

Will, dt.09-03-1990 which falsifies the evidence of PW.2. He also obtained the study certificate to prove that Jetty Moses is his father

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and those documents are just and necessary to prove his contention.

3.The respondent/defendant fended off the petition on the ground there is no averment whatsoever in the petition explaining the delay why he could not file all the documents along with the plaint and in the absence of such explanation the petition is not maintainable.

4.The point for determination is :-

Whether the petitioner has established sufficient cause to receive the documents ?

5.POINT :The earlier petition filed by the petitioner to receive the listed documents was dismissed on the ground that no sufficient cause is established and no plausible explanation was given for the delay in filing the documents and without causing prejudice to the right of the petitioner to file a fresh petition by mentioning the cause for the delay in filing the listed documents. Now the petitioner filed the affidavit in support of the petition giving plausible explanation for the delay in filing the documents. As seen from the reasons mentioned in the affidavit, he obtained the copy of the assessment of house bearing No.13-02-2013 under Right to Information Act on 08- 08-2017 and there was a delay in obtaining the certified copy of the

Will and hence, he could not file the document along with the plaint. I do not find any unnaturality in the said explanation given by the petitioner. The explanation is plausible and I, therefore, hold that the petitioner as established sufficient cause to receive the documents.

6.In the result, the petition is allowed.

Dictated to the Stenographer Grade-II, transcribed by her, corrected

and pronounced by me in open Court on this the 11th day of April, 2018.

Sd/- U.SATYA RAO

II ADDL. DISTRICT JUDGE,

VISAKHAPATNAM.

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IN THE COURT OF THE II ADDITIONAL DISTRICT & SESSIONS JUDGE

VISAKHAPATNAM.

Present : Sri.U.Satya Rao II Addl. District Judge, Visakhapatnam.

Tuesday, this the 03rd day of April, 2018

A.O.P. 78/2017

Between : M/s Shriram Transport Finance Company Limited, represented by its Authorized Signatory cum GPA holder: M.V.Ravi Kumar, Office situated at Madhurawada, Visakhapatnam. …Petitioner And :

1.Ch.Siva Sankar Reddy, S/o Ellanna Reddy, Hindu, aged about 40 years, residing at 8-63-68, Chilla peta, Chittivalasa, Bheemunipatnam, Visakhapatnam.

2.Vadra Ramesh Babu, S/o Eswara Rao, Hindu, aged about 42 years, residing at 4-58-106/1, Santhapeta, Chittivalasa, Bheemunipatnam, Visakhapatnam. …Respondents

This petition is coming for final hearing before me in the presence of Sri. Y.Vijaya Saradhi, Advocate for the petitioner, R2 set exparte, Petitioner called absent, No representation, this Court delivered the following :

O R D E R

Petition filed under section 9 of the Arbitration & Conciliation Act 1996 to furnish security for the amount of Rs.86,245/- as on 08.11.2016 being the outstanding amount as per the Arbitration claim amount, within time to be fixed by the Hon'ble Court, and upon his failure to attach the petition schedule property and for costs of the petition.

No representation, steps not taken, Petitioner is absent. Petition is dismissed.

Pronounced by me in open Court, this the 03rd day of April, 2018.

II Addl., District Judge, Visakhapatnam.

No oral and documentary evidence are adduced on either side.

II ADJ/VSKP.