IN THE COURT OF XXV ADDITIONAL CHIEF JUDGE CITY CIVIL COURT: AT
HYDERABAD
THURSDAY, THE 20TH DAY OF DECEMBER, 2018
PRESENT: SMT.V.A.L.SATHYAVATHI
XXV ADDITIONAL CHIEF JUDGE
Original Suit No.402 of 2008
Between:
1. Ponna Chalapathi Rao S/o Late Ponna Vittal Rao, aged 34 years, Occ: Business, R/o 185380, outside Lal Darwaza, Hyderabad.
2. Ponna Srinivas Rao S/o Ponna Satyanarayana, aged 37 years, Occ: Business, R/o H.No.181292/47/A/20/B, Shivajinagar, Uppuguda, Hyderabad.
3. Ponna Venkateshwarlu S/o Ponna Satyanarayana, aged 31 years, Occ: Business, R/o H.No.181297/161/A, Shivajinagar, Uppuguda, Hyderabad.
4. Ponna Venkatramana S/o Ponna Sudershan, aged 26 years, Occ: Business, R/o H.No.185542, Mekalabanda, outside Lal Darwaza, Hyderabad.
5. Ponna Santosh S/o Ponna Sudershan, aged 25 years, Occ: Business,
6. Ponna Jithendra S/o Ponna Sudershan, aged 24 years, Occ: Business, both are R/o H.No.185544, Mekalabanda, outside Lal Darwaza, Hyderabad.
.....Plaintiffs
AND
1. V.Rameshwar Rao S/o Late V.Narayana Rao, aged about 50 years, Occ Private Service,
2. V.Ram Mohan Rao S/o Late V.Narayana Rao, aged about 48 years, Occ: Private Service,
3. V.Laxman Rao S/o Late V.Narayana Rao, aged about 45 years, Occ Private Service, all are R/o H.No.3214, Burugu Chetty Bazar, Secunderabad.
4. M.Sai Rani D/o Late V.Narayana Rao, aged about 43 years, Occ: Household,
5. R.Anuradha D/o Late V.Narayana Rao, aged about 40 years, Occ: Household, both are R/o 66461, Gandhi Nagar, Secunderabad.
6. S.Sandhya Rani D/o Late V.Narayana Rao, aged about 38 years, Occ: Household, R/o 44696, Kanda Swamy Lane, Sultan Bazar, Hyderabad.
7. D.Krishna S/o D.Anantaiah, aged about 56 years, Occ: Business, R/o H.No.202735/1, Hussaini Alam, Near Narsing Bhavan Temple, Hyderabad.
8. The Sub Registrar, SRO, Azampura, Hyderabad.
....Defendants
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This suit is coming on this day before me for final hearing in the presence of Sri M.Sudheer Reddy, Counsel for the plaintiffs, Sri Arvind Palan, Counsel for defendants 1 to 6, Sri M.Papa Reddy, Counsel for defendant No.7 and Government Pleader for defendant No.8 and upon hearing both the counsel and on perusing the material available on record and the matter having stood over for consideration till this day, the Court delivered the following:
J U D G M E N T
This is a suit filed by plaintiffs seeking the Court to declare release deed registered as document No.1947/2005 dated 27.05.2005 as null and void and not binding on the plaintiffs, to declare sale deed registered as document
No.3885/2007 dated 25.07.2007 as null and void and not binding on the plaintiffs, to grant perpetual injunction against defendants and their agents, servants, etc., from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and to award the costs of suit.
2.The case of the plaintiffs as could be seen from the plaint, in brief, is as follows:
Plaintiffs contend that they are absolute owners and possessors of house bearing municipal No.185117 to 122, admeasuring 670 sq. yards, situated at
Mekalabanda, outside Laldarwaza, Hyderabad, which is suit schedule property.
They acquired the same vide registered release deed document No.2973/2008
dated 23.05.2008. It is their ancestral property.
3.Plaintiffs contend that originally the suit schedule property belonged to
Mr.Ponna Agaiah S/o Ponna Muthaiah who is their great grandfather and he died intestate leaving behind his four sons namely 1) Ponna Narasaiah @ Ponna
Chinna Narsaiah, 2) Ponna Basavaiah, 3) Ponna Sivanna and 4) Ponna Balaiah
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as his only legal heirs and successors to his estate. So their names were mutated in municipal records as well as town survey records.
4.Plaintiffs contend that Ponna Sivanna and Ponna Basavaiah died issueless.
Ponna Narsaiah @ Chinna Narsaiah had a son namely Ponna Sathaiah. Said
P.Sathaiah also died issueless. P.Basavaiah, P.Sivanna and P.Sathaiah died intestate leaving behind them P.Balaiah as their only legal heir and successor to their estate. Thereafter P.Balaiah died intestate leaving behind him his three sons
1) P.Vittal died and his legal heirs 1) P.Chalapathi Rao (plaintiff No.1), 2)
P.Satyanarayana 3) P.Sudershan as his only legal heirs and successors to this estated. P.Satyanarayana and P.Sudershan executed a release deed bearing document No.2973/2008 in favour of plaintiffs releasing their share in suit schedule property, thereby plaintiffs acquired right and title as absolute owners in respect of suit schedule property.
5.Plaintiffs contend that originally their ancestors acquired property bearing
No.185116 to 122 admeasuring 760 sq. yards at Mekalabanda, Hyderabad and thereafter P.Sathaiah sold only one house bearing No.185116 admeasuring 46 sq. yards in favour of V.Antaiah through a registered sale deed document
No.628/1960 dated 21.04.1960 while retaining other houses bearing municipal
Nos.185117 to 122 for themselves.
6.Plaintiffs contend that defendants 1 to 6 created a false registered release deed document No.1947/2005 dated 27.05.2005 in respect of property bearing municipal No.185116 to 120 and 185426. Defendants 1 to 3 executed a
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release deed in favour of defendants 4 to 6. Defendants 1 to 6 created release deed knowing fully well that they have no manner of right or title in respect of that property and it is created only to grab the property of plaintiffs. Defendants 4 to 6 taking advantage of holding false release deed executed registered sale deed document No.3885/2007 dated 25.07.2007 in favour of defendant No.7.
Defendants created all this with dishonest intention to grab the property and cause wrongful loss to the plaintiffs and to have wrongful gain for themselves.
7.Plaintiffs contend that defendant No.7 having obtained false and fabricated document try to induct himself into the possession of the suit schedule property with the help of anti social elements on 31.05.2008. They resisted the illegal activities of defendant No.7 and inquired about his title and came to know about existence of false release deed and sale deed in the first week of June 2008. Then they lodged complaint with the police and as police did not take any action they were constrained to initiate appropriate criminal proceedings against defendants 1 to 7. There is continuous threat of being dispossessed by defendants.
8.Therefore plaintiffs pray this Court to pass a judgment and decree in their favour and against defendants,
a) to declare deed registered as document No.1947/2005 dated 27.05.2005 as null and void and not binding on the plaintiffs,
b) to declare the sale deed registered as document No.3885/2007 dated 25.07.2007 as null and void and not binding on the plaintiffs,
c) to grant perpetual injunction against defendants and their agents, servants, henchmen, from interfering with peaceful possession and enjoyment of the plaintiffs over the suit schedule property,
d) to award the costs of the suit and such other reliefs as this Court deems fit and proper in the circumstances of the case.
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9.Though defendants 1 to 6 made their appearance through counsel, but later they did not file written statement even after availing several adjournments, hence they were set ex parte.
10.Against this defendant No.7 filed written statement with the following averments:
Defendant No.7 denied all the allegations made by the plaintiffs in the plaint and contends that the suit without seeking relief of declaration as to title of plaintiffs in respect of suit schedule property merely seeking declaration in respect of release deed dated 27.05.2005 and sale deed dated 25.07.2007 and for perpetual injunction is not maintainable either in law or on facts.
11.Plaintiffs have sought for the relief in such manner only to avoid payment of requisite court fee and as such the very framing of the suit is erroneous. The assertion as shown alleged position of plaintiffs is absolutely in correct and in those circumstances plaintiffs are not entitled to seek the relief of perpetual injunction restraining him from interfering with alleged peaceful possession and enjoyment of plaintiffs. This suit is only chance litigation and hence it deserves dismissal. Hence issue as to maintainability of suit being preliminary issues and the same has to be dealt with at the threshold itself.
12.Defendant No.7 contends that it is apparent from the meaningful examination of documents that the documents styled as Release Deed appears to have been obtained plaintiffs so as to create evidence claiming title in respect of the suit schedule property inter se between themselves. It does not create any
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title in favour of the plaintiffs in respect of the suit schedule property. The documents would speak for themselves that only a portion admeasuring 46 sq.
yards of premises 185116 was sold in favour of Mr.V.Anthaiah under document
No. 628/1960 and other portions of the houses numbers 185117 to 122 were retained by alleged ancestral of the plaintiffs are absolutely incorrect. There was no question of defendants 4 to 6 taking advantage of such document. The property has been purchased for valuable consideration from its rightful owners by him and they registered sale deed document No. 3885/2007 dated 2501 2007 and he was put in possession of the suit schedule property and he has been in peaceful possession and enjoyment of the suit schedule property as absolute owner.
13.Defendant No.7 contends that it is the plaintiffs who have obtained a make believe document in the nature of release deed obtained by them in their favour under document No.2973/2008, and as such the plaintiffs are precluded from making any such allegations relating to the title of defendants 1 to 6 or that of him.
14.It is apparent that with an intention to give colour to their fictitious and false claims in respect of the suit schedule property plaintiffs have filed a false criminal case in crime No.68/2008 but same is of no consequence as to the plaintiffs have absolutely no right, title or interest in respect of the suit schedule property and they have ever being in possession of the same.
15.Defendant No.7 contends there is no cause of action for filing the present
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suit as the plaintiffs do not have any right in respect of the suit schedule property nor any attempts were made by this defendant to take possession of the property as he has been in possession of the suit schedule property since its purchase and prior to him defendants 1 to 6 have been in possession of the same.
16.It is pertinent to note that originally late P.Rajanna has executed a registered deed of gift in respect of an area admeasuring 81 sq. yards under a registered gift deed being document No.2399/1351 fasli dated 19th Sherewar 1351 fasli. The property gifted was described as “No.5391 (old) and [New No. 16921] situated at Outside Lal Darwaza Market Saheb Khan, Hmmam bowli, Myakalabanda bounded by: East:Passage West:Land and house of Mahaboob Ali North:House of Kammu Shankaraiah South:Passage
17.The said property in turn was sold for valuable consideration by lat
P.Sataiah to V.Antaiah under a registered sale deed being document
No.628/1960, dated 21.04.1960. While alienating the said property, the property sold was specifically described as follows: “1291/3 [old] [New No.185116] and the extent described in plan as 81 sq. yards within the following boundaries:
East:Way and house of Kammu Ramesh West:Land and house of Mahaboob alienating North: House of Kammu Shankeraiah South:Way
18.Thus premises No.185116 admeasuring 81 sq. yards owned and possessed by late V.Antaiah.
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19.Defendant No.7 contends that in so far as premises bearing No.185117 is concerned it was originally belongs to Laxmanji and he in turn had mortgaged the same to V.Antaiah under a registered deed of mortgage bearing document
No. 336/1350 fasli dated 09th Dai, 1350 fasli. After the said mortgage Laxmaiah did not get property redeem and as such the absolute rights in said property stood transfer in favour of V.Antaiah and continued to be in possession of the same as absolute owner. Stipulated period of time mentioned in the registered deed of mortgage expired and redemption time also expired. Thereafter
V.Antaiah registered a will document No.3/1964 bequeathing his properties to his grandson V.Rameshwar Rao, V.Ramohan Rao and V.Laxman who were born by then, along with other grandson who were born thereafter specifically describe in the property bequeath the premises bearing No. 185116 and 117 totaling admeasuring 260 sq. yards i.e., 81 sq. yards acquired from Ponna
Sataiah under a registered sale deed bearing document No. 628/1960, dated 21.04.1960 and premises No. 185117 admeasuring 179 sq. yards which was originally mortgaged to him by late Laxmanji while absolutely bequeathing the property in favour of his grand son late V.Antaiah also created life interest in favour of his adopted son V.Narayan Rao.
20.Defendant No.7 contends that in so far as the other portion of property bearing premises No. 185117, 118, 119 and 120 and 185426 are concerned premises bearing No. 185426 [old No. 5380] originally belonged to one Shivaji who in turn gifted the same to his on Pushkarji @ Khaja Miya under a registered
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deed of gift dated 09th Meher 1328 fasli bearing document No. 1268/1328 fasli.
The said Pushkarji @ Khaja Miya @ Karanraj in turn sold the same to V.Antaiah under a registered sale deed bearing document No.335/1350 fasli dated 09th Dai 1350 fasli. V.Antaiah under his registered will bequeathed all his above mentioned properties in favour of his grand children while creating life interest in favour of his adopted son V.Narayan Rao.
21.Defendant No.7 contends that as seen from the registered will of
Smt.V.Vijay Kumari wife of V.Narayan Rao the adopted son of late V.Antaiah she has bequeathed premises No. 185117 to 120 and 185426 absolutely in favour of defendants 4 to 6 herein being their daughters in accordance with the wishes of her late husband V.Narayan Rao and his adoptive father late V.Antaiah. It is thus apparent that in so far as premises No. 185116 admeasuring 81 sq. yards and premises No. 185117 admeasuring 176 sq. yards is concerned the same stood bequeathed to the three sons of V.Narayan, i.e., V.Rameshwar Rao, V.Ram
Mohan Rao and V.Laxman. Apparently no further sons were begotten by late
V.Narayan Rao but he begot three daughters i.e., defendants 4 to 6 who became owners of portions of premises No. 185117, 118 to 120 and 185426 absolutely under and in pursuance of registered will executed by V.Vijay Kumari wife of late V.Narayan Rao dated 27.11.1992. Thus defendants 1 to 6 between themselves are the owners of the said property bearing premises No. 185116 to 120 and 185426.
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22.Defendants 1 to 3 appear to have released the said property in favour of defendants 4 to 6 under document No. 1947/2005, dated 27.05.2005 totaling admeasuring 32 sq. yards equivalent to 779.24 sq meters situated at Phool Bath
Lal Darwaza Hyderabad. Unfortunately complete tracing of title in respect of the said portion of the said property other than 185516 and manner of acquisition by V.Antaiah was not explained in the said release deed which is sought to be taken benefit of by the plaintiffs. However it is apparent from the registered document that late V.Antaiah and after him his adopted son V.Narayan Rao and his wife V.Vijay Kumari have been the registered owners of the property and are in continuous peaceful possession and enjoyment of the same all along. Those documents are more than 13 years old documents.
23.Defendant No.7 contends released deed executed by D1 to D3 in favour of
D4 to D6 is a valid document and hence D4 to D6 have every right to alienate the said property for valuable consideration in favour of him. Plaintiffs are not in a position to explain how their ancestral claimed to acquired the property. Plaintiff cannot be owners of premises baring No. 185116 to 120 and 185426 are any portion thereof. There is absolutely no cause of action of the suit all the reasons mentioned above defendant No.7 prays this court to dismiss the suit exemplary costs.
24.Defendant No.8 filed written statement with the following averments:
Defendant No.8 denied all the allegations made by the plaintiffs and admits as to execution of release deed dated 23.05.2008 by Ponna Satyanrayana, Ponna
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Sudershan in favour of Ponna Chalapathi Rao, Ponna Srinivas Rao, Ponna
Venkateswarlu, Ponna Venkatramana, Ponna Santosh and Ponna Jitendra and the plaintiffs herein releasing their 2/8th undivided share in ACC roofed house bearing No.185117 to 122 admeasuring 670 sq. yards situated Mekalabanda
Outside Lal Darwaza Hyderabad got it registered as document No. 2173/2008 at
Sub Registrar Office Azampura Hyderabad. He also stated as to execution of sale deed by Pona Sataiah in favour of V.Anataiah in respect of house baring No. 18 5116 admeasuring 46 sq. yards under document No.628/1960. he also stated as to execution of release deed by defendant No. 1 to 3 in favour of defendant 4 to 6 dated 27052005 and got registered it as document No.1947/2005. He also stated as execution of sale deed by D4 to D6 in favour of D7 dated 25.07.2007 bearing document No.388/2007.
25.Defendant No. 8 contends that registering officer has no power to inquire into the validity of document brought him to for registration or the right of executing the party to execute the same as per the provision of Registration Rule
58. The action of this defendant in registering document is in accordance with the law prescribed for the registration document. Therefore defendant No.8 prays to this court to dismiss the suit with exemplary costs in the interest of justice.
26.On hearing both sides and considering the pleadings and documents filed for both parties, my learned predecessor in office settled the following issues for trial:
1. Whether the suit schedule property was ancestral property of plaintiffs?
2. Whether the release deed bearing document No.2973/2008 executed in favour of plaintiffs is true, genuine, valid and binding on defendants?
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3. Whether the suit is maintainable without seeking the relief of declaration of title?
4. Whether the plaintiffs are entitled for declaration as to the release deed bearing document No.1947/2005 being null and void and not binding on plaintiffs?
5. Whether the plaintiffs are entitled for declaration that the sale deed bearing document No.3885/2007 is null and void and not binding on them?
6. Whether the plaintiffs are in possession of the suit schedule property?
7. Whether the plaintiffs are entitled for relief of perpetual injunction against defendants as prayed for?
8. Whether the Court fee as paid is sufficient?
9. To what relief?
27.To substantiate the case of plaintiffs, PW1 to PW3 were examined and
Ex.A1 to A13 and Ex.X1 to X5 were marked. On behalf of defendant No.7, DW1 is examined and Ex.B1 to B64 were marked.
28.Learned counsels for plaintiffs and defendants submitted their oral arguments. Learned counsel for defendant No.7 also filed written arguments.
29.Second plaintiff testified as PW1. Plaint averments and evidence of PW1 are that the plaintiffs are in possession of suit schedule property as owners of the said property. The protest is from defendant No.7 who contends he is in possession of the suit schedule property as owner of the said property.
Defendant No.7 deposing as DW1 claimed his title and possession based on a registered sale deed. Ex.B24 is the certified copy of the sale deed, dated 25.07.2007. A perusal of it shows that defendant No.7 purchased a part of suit schedule property. Suit property is H.No.185117 to 122. Property covered under Ex.B24 H.No.185116 to 120 and 185426. Plaintiffs prayed for declaration that the said sale deed is null and void and does not bind them. They
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have not claimed any right over H.No.185116, since according to plaint and evidence of PW1 that H.No.185116, was sold out by ancestral of plaintiffs under the original of Ex.A2 registered sale deed dated 22.04.1960. (Ex.A2 is in
Urdu language and its true translation is Ex.A2). Plaintiffs have also not claimed any rights over H.No.185426, as could be seen from the plaint. In fact, PW1 during his cross examination categorically stated that they are not concerned with H.No.185426. Thus on their own showing plaintiffs have no legal right over H.No.185116 and 185426. Therefore, they cannot seek declaration that
Ex.B24 (its’ equivalent is Ex.A5 filed by plaintiffs) is null and void concerning
H.No.185116 and 185426. H.No.185116 and 185426 are not covered by
Ex.B24/Ex.A5. In these circumstances the claim of plaintiffs is limited to
H.No.185117 to 120 covered by Ex.B24/Ex.A5.
30.As per the pleadings on both sides and evidence of PW1 and DW1 the vendors of defendant No.7 traced their right through a registered released deed.
Certified copy of that is filed by plaintiffs as per Ex.A4 and filed by defendant
No.7 as per Ex.B23. This release deed dated 27.05.2005 executed by D1 to D3 in favour of D4 to D6. Recitals therein refer as to how the property came to to defendants 1 to 6 and how D1 to D3 relinquished their rights in favour of D4 to
D6. This document also refer to H.No.185116 to 120 and H.No.185426.
Plaintiffs seeks declaration that this document is also null and void. What all that is stated about Ex.B24/Ex.A5 in the earlier paragraphs applies to this document also.
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31.Since plaintiffs seek to avoid the above referred documents dealing with immovable property it is for plaintiffs to show their rights over this property and only then it can be said that they could seek declarations for their annulment.
How plaintiffs laid claim is to be discussed now.
32.As per the averments in the plaint and evidence of PW1 the claim of title is based on a registered released deed. Original deed is not filed and plaintiffs have not offered any explanation for that lapses. It certified copy is Ex.A1. This document dated 23.05.2008. Under this document two persons released their rights over suit property in favour of six persons. Recitals therein indicate that from ancestors all of them got the suit property and therefore some of them relinquished their right in favour of others. Releasers and releases signed the document. A release by itself is not a document in proof of title. It is a document that presupposes existence of earlier rights. This document is a mere statement of executants that the property belonged to them. When defendants questioned this title it is for the plaintiffs to show how they got the property and hold the title.
How they got the title is not narrated in Ex.A1 and is repeated in the plaint and is also repeated by PW1. What is it has to be seen now.
33.Plaintiffs contend that their ancestor Mr.Ponna Agaiah acquired the suit schedule property. Through out trial plaintiffs failed to state as to when and how he acquired it. In his cross examination PW1 admitted that plaintiffs have not filed any document such as sale deed etc., standing in the name of that Poona
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Agaiah. Ex.A1 also does not indicate the manner in which Ponna Agaiah had acquired the suit property. Record does not indicate the acquisition of title over the suit property by Ponna Agaiah. Be that as it may.
34.As per the plaint and evidence of PW1 Ponna Agaiah died intestate. When he died is not stated by plaintiffs. Plaintiffs have not filed any document indicating his death. As could be seen from record plaintiffs are Hindus. Their ancestors are presumed to be Hindus. It is not known whether Ponna Agaiah died prior to or after the Hindu Succession Act came into force. Plaint and PW1 have not whispered about wife of Ponna Agaiah and about any daughters to him and whether they are died or alive and if they are dead when they died. Thus, certain crucial facts are not disclosed by plaintiffs. Be that as it may.
35.It is averred in the plaint and PW1 stated that Ponna Agaiah had four sons namely Narasiah, Basavanna, Shivanna and Balaiah. Thus, on the death of Ponna
Agaiah his four sons succeeded the property in equal measures. They state that out of four referred sons Basavaiah and Shivanna issue less and intestate. That implies they were married and had their respective wifes. Whether those females are alive or not is not disclosed through out the trial. When Basavaiah and
Shivaiah died is not disclosed any where. Since what was succeeded by Basvaiah and Shivanna from their fathers self acquired property became their self acquired property. Plaintiffs are bound to disclose about the existence or otherwise of the respective wifes of Basvaiah and Shivanna. Plaintiffs seemed to assumed for themselves that on the death of those two persons their shares went to their
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surviving siblings. Such assumptions are not permissible in a suit where title is at dispute. Be that as it may.
36.It is averred in the plaint and PW1 say that Narasiah had a son by name
Sataiah. They have not stated whether Narasiah is dead or alive. It seems that one should infer that Narasiah died. When he died and what happen to his wife is not disclosed by plaintiffs. Their is not positive averment that he had no daughters. Be that as it may.
37.It is averred in the plaint and PW1 stated that Mr.Satiaha S/o Narasiah also died and he died issueless that means he got married but had no children. Then what happen to his wife is not disclosed anywhere. When he died is also not known from the record.
38.According to plaint and evidence of PW1 Balaiah died leaving behind three sons. When he died what is the leaving status of his wife are not disclosed by the plaintiffs. Those three sons are Vittal, Satyanarana and Sudershan. Plaintiffs state that Vittal died leaving behind his son Chalaptahi Rao. When he died not disclosed. What happened to his wife is also not disclosed. Whether he has daughters or not is not disclosed. Thus there are vital omissions for considering the devolution of title on plaintiffs.
39.It is averred in the plaint and PW1 deposed that on parties to Ex.A1 title devolved. It is with that assumption Satyanarayana and Sudharshan who are grandsons of original owner Ponna Agaiah executed release deed. As per Ex.A1 release deed releasing their rights over their assumed to 2/8 right title over the suit schedule property in favour of great grand sons of Ponna Agaiah, Chalapathi
Rao, Srinivas Rao, Venkateshwarlu, Venkataramana, Santosh and Jitendra.
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40.A Court of law cannot aspect devolution of title by inheritance with all lapses vital facts indicated in the earlier paragraphs. It is with that imperfect title contained in Ex.A1 now the beneficiary of Ex.A1 filed this case challenging the documents asserted by defendant No.7, whether D7 holds valid title or not does not fall for consideration until plaintiffs show their titles. It is only then they are able to establish their title they can seek avoidance of documents of defendants.
The narration of plaintiffs given indication that during all this generation title remained intact among all the persons in all the generations without any division of shares. It is at this junction one shall see the contents of Ex.A2 and its English translation Ex.A3. This is certified copy of registered sale deed dated 24.04.1960 where under H.No.185116 was sold to one Sri.Vengal Anthaiah. The vendor/executant is Mr.P.Sataiah who is son of Narasiah and grandson of Ponna
Agaiah. It recitals show that the vendor is the absolute owner and he is in possession of the property without any body share or interest. This recital is to be verified on the plaint pleadings. In the plaint it is averred that Ponna Agaiah owned H.No.185116 to 185122. Plaint does not indicate any division of property since then till now. If that be the case how could a grandson of Ponna
Agaiah sell a part of that property claiming exclusive right and possession. Such recitals are possible only where there was division of property. Plaintiffs have not explained the implications of above recitals in Ex. A2. In this view of the matter also the claim of plaintiffs cannot be sustained.
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41.From the time of Ponna Agaiah possession of property is claimed. If plaintiffs claimed their right through possession the material on record show a few aspects denting that. In the name of Ponna Agaiah no document is filed showing his possession. Next comes his four sons. This suit was filed in the year 2008. Plaintiff have not filed documents existing prior to 2008 showing possession of that. Certain tax receipt of \the year 2008. Ex.A11 is tax receipt for
H.No.185117 in the name of Balaiah. Ex.A11 (2) tax receipt is for H.No.185 118 in the name of Basavappa who is not a successor of late Ponna Agaiah.
Ex.A10 tax receipt for H.No. 185118 to 122 in the name of Shivanna. Thus for
H.No.185118 one receipt in the name of successor to Ponna Agaiah while the other receipt is in the name of a 3rd party to the family. Moreover this tax receipts indicate tax being separately assessed for each house number in the name of separate individuals. That is also an indicative of separation which fact does not fit in with the averments made by the plaintiffs in the plaint.
42.Through PW2 and PW3 plaintiffs got marked Ex.X1 to X5. Ex.X1 to X3 do not show the name Ponna Agaiah but show the name of Antaiah. Through whom defendant No.7 traces his title. Ex.A4 shows owner as per Revenue Registers showing name of one Abadi who is no way connected to plaintiffs and their ancestors. Ex.X4 shows details as per municipal registers indicating names of four persons Narasiah, Basavappa, Shivanna and Bajeed. Basavappa and Bajeed are not children of Ponna Agaiah. From all this it is clear that plaintiffs failed to show any possessor title or possession in the manner as alleged in the plaint.
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43.Defendant No.7 claims valid title. This suit is not for deciding title of defendant No.7. It is sufficient to indicate few facts. Ex.A23 release deed is earlier source of title for defendant No.7. this contains recitals about
Ex.B4/Ex.A2 sale deed as though H.No.185116 to 120 and 185426 were sold.
However the recitals in Ex.B4/A2 show that only H.No.185116 was sold but no
H.No.185117 to 120 and 185426. the claim of title by defendant No.7 also take support from Ex.B56 which is certified copy of registered will by Anataiah.
None of the attestors testified to prove this will. Thus the criticism of title of defendant No.7 raised by plaintiffs has force. However weakness of defendants case is of no use for plaintiffs in case for declaration as laid down by the Hon’ble
Supreme Court in Union of India Vs Vasavi Cooperative Housing Society Ltd (2014) to SCC 269.
44.Keeping the above decision the issues shall be answered.
45.Issue No.1: Whether the suit schedule property was ancestral property of plaintiffs.
From the discussion made above it can be said that property bearing
H.No.185117 to 122 belongs to the ancestral but clear rights of plaintiffs are not established. Hence this issues is answered accordingly.
46.Issue No.2: Whether the release deed bearing document No.2973/2008 executed in favour of plaintiffs is true, genuine and valid binding on the defendants?
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From the discussion made above the release deed bearing document No.
2973/2008 standing in the name of plaintiffs is true, genuine. However it does not bind defendants since devolution of title on plaintiffs is not established.
47.Issue No.3: Whether the suit is maintainable without seeking the relief of declaration of title?
Since the defendants have been asserting title even much before the suit and since core of the dispute revolves around title, failure to seek prayer for declaration of title is not acceptable. However it may be technically said the suit is not maintainable. Hence this issue is answered accordingly.
48.Issue No.4: Whether the plaintiff are entitled for the declaration as to the release deed bearing No. 1947/2005 being null and void and not binding on the plaintiffs?
Not entitled. In view of the above issues plaintiffs are not entitled to seek declaration of release deed document No. 1947/2005 as null and void and not binding on the plaintiffs. Hence this issue is answered against the plaintiffs.
49.Issue No.5: Whether the plaintiffs are entitled for the declaration as to the sale deed bearing No. 3885/2007 is null and void and not binding on them?
Not entitled. In view of the above issues plaintiffs are not entitle to seek declaration of sale deed document No. 2885/2007 as null and void and not binding on the plaintiffs. Hence this issue is answered against the plaintiffs.
21 O.S.No.402 of 2008
50.Issue No.6: Whether the plaintiffs are in possession of the suit property?
As per Ex.B15 notice from municipal corporation of the year 2005
Municipal authorities have issue notices to defendants which is indicative of their possession. Clear possession of plaintiffs is not established. Hence this issues is answered against the plaintiffs.
51.Issue No.7: Whether the plaintiffs are entitled for relief of perpetual injunction against defendants as prayed for?
In view of my finding for issue No.6, plaintiffs are not entitled for perpetual injunction. Hence this issues is answered against plaintiff.
52.Issue No.8: Whether the court fee as paid is sufficient?
As seen from the plaint. Plaintiffs paid court fee in terms of section 24 B of
A.P. Court Fee and Suits Valuation Act and also under Section 26 of A.P. Court
Fee and Suits Valuation Act and it is in correct lines.
53.Issue No.9: To what relief?
In the result this suit is dismissed. No costs.
Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court, on this the 20th day of December, 2018. Sd/
V.A.L.SATHYAVATHI
XXV ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDERABAD.
APPENDIX OF EVIDENCE:
Witnesses Examined
For the plaintiffs: For defendant No.7:
PW1: Ponna Srinivas Rao DW1: D.Krishna PW2: A.Arjuna Rao PW3: T.Mohan Rao
22 O.S.No.402 of 2008
Documents marked for the plaintiffs:
Ex.A1 is the certified copy of release deed document No.2973/2008
Ex.A2 is the certified copy of sale deed document No.628/1960 dated 21.04.1960
Ex.A3 is the true translation in English
Ex.A4 is the certified copy of release deed document No.1947/2005
Ex.A5 is the certified copy sale deed bearing document No.3885/07 dated 21.04.1960
Ex.A6 is the office copy of complaint to P.S. Shalibanda dated 10.06.2008
Ex.A7 is the office copy of complaint to ACP dated 10.06.2008
Ex.A8 is the attested copy of FIR in crime No.68/2008 dated 26.06.2008
Ex.A9 is notice under Section 91 and 161 of Cr.P.C. dated 03.07.2008
Ex.A10 is the GHMC tax receipt dated 04.05.2008 (2 Nos)
Ex.A11 is the GHMC tax receipt dated 30.05.2008 (2 Nos)
Ex.A12 is the letter dated 20.10.2008
Ex.X1 is the statement showing details of reassessment of tax in respect of ward No.18, Block No.5 and H.No.117 i.e. 185117 dated 02.01.1956
Ex.X2 is the statement showing details of reassessment of tax in respect of ward No.18, Block No.5 and H.No.118 i.e. 185118 dated 02.01.1956
Ex.X3 is the statement showing details of reassessment of tax in respect of ward No.18, Block No.5 and H.No.119 and 120 i.e. 185119 and 120 dated 02.04.1956
Ex.X4 is the true extract of town survey record pertaining to ward No.271, block H and T.S.No.18, H.No.185116 to 120 and 426
Ex.X5 is the true copy of Andhra Pradesh Hyderabad District Gazette extraordinary publication dated 24.01.1977
23 O.S.No.402 of 2008
Documents marked for the defendant No.7:
Ex.B1 is the certified copy of ad interim injunction order in IA.753/2008 in
O.S.No.1503/2008 dated 06.05.2008
Ex.B2 is the certified copy of docket order in IA.753/2008 in O.S.No.1503/2008
dated 20.06.2008
Ex.B3 is the certified copy of gift deed document No.2399/1351 in Urdu along with translation
Ex.B4 is endorsement and certificate vide document No.328/1960
Ex.B5 is the certified copy of document No.336/1350 mortgage deed along with translation
Ex.B6 mistakenly omitted
Ex.B7 is the certified copy of document No.1268/1321 gift deed along with English translation
Ex.B8 is the certified copy of document No.335/2008 along with English translation
Ex.B9 is the original acknowledgment datd 16.06.2008
Ex.B10 is original acknowledgment dated 13.06.2008
Ex.B10A is the certified copy of town survey register along with plan dated 14.08.2008
Ex.A11 is the original newspaper Telugu Vartha dated 01.09.2005
Ex.A12 is the certified copy of Hindu Smasana Prabhandika Committee
Ex.A13 is the certified copy of death certificate of V.Narayana Rao
Ex.B14 is the certified copy of death certificate of Vijay Kumari
Ex.B15 is notice dated 01.09.2005
Ex.B16 is original letter dated 01.08.2008
Ex.B17 is original letter dated 11.08.2008
24 O.S.No.402 of 2008
Ex.B18 is original notice from Government dated 03.07.2008
Ex.B19 is the original complaint dated 16.08.2008
Ex.B20 is the original FIR No.70/08 dated 30.06.2008
Ex.B21 is the original complaint dated 21.08.2008
Ex.B22 is the original complaint to PS Shalibanda dated 21.08.2008
Ex.B23 is certified copy of release deed document No.1947/2005
Ex.B24 is the certified copy of sale deed dated 25.07.2007 document No.3885/2007
Ex.B25 is the copy of sketch plan
Ex.B26 is the original application for EC dated 21.05.2008
Ex.B27 is the certified copy of order in IA.753/08 dated 12.08.2008
Ex.B28 is the original encumbrance certificate
Ex.B29 is the original encumbrance certificate
Ex.B30 is the original reassessment of MCH of property tax of H.Nos.185117, 118, 119 and 120 to 122
Ex.B31 is the original receipt of property tax of H.No.185116 dated 28.08.2008
Ex.B32 is the original receipt of property tax of H.No.185119 and 120 for the period 01.04.2008 to 31.03.2009 dated 02.02.2009
Ex.B33 is the original receipt of property tax of H.No.185116 for the period from 01.04.2009 to 31.03.2010 dated 24.08.2009
Ex.B34 is the original property tax receipt of H.No.185117 for the period 01.04.2009 to 31.03.2010 dated 24.08.2009
Ex.B35 is the original property tax receipt of H.No.185118 for the period 01.04.2009 to 31.03.2010 dated 24.08.2009
Ex.B36 is the original property tax receipt of H.No.185119 & 120 for the period
25 O.S.No.402 of 2008
01.04.2009 to 31.03.2010 dated 29.12.2009
Ex.B37 is the original property tax receipt of H.No.185116 for the period 01.04.2010 to 31.03.2011 dated 28.06.2010
Ex.B38 is the original property tax receipt of H.No.185117 for the period 01.04.2010 to 31.03.2011 dated 28.06.2010
Ex.B39 is the original property tax receipt of H.No.185118 for the period 01.04.2010 to 31.03.2011 dated 28.06.2010
Ex.B40 is the original property tax receipt of H.No.185119 & 120 for the period 01.04.2010 to 31.03.2011 dated 30.10.2010
Ex.B41 is the original property tax receipt of H.No.185426 for the period 01.04.2010 to 31.03.2011 dated 28.06.2010
Ex.B42 is the original property tax receipt of H.No.185116 for the period 01.04.2011 to 31.03.2012 dated 29.02.2012
Ex.B43 is the original property tax receipt of H.No.185117 for the period 01.04.2011 to 31.03.2012 dated 29.02.2012
Ex.B44 is the original property tax receipt of H.No.185118 for the period 01.04.2011 to 31.03.2011dated 29.02.201209
Ex.B45 is the original property tax receipt of H.No.185119 & 120 for the period 01.04.2011 to 31.03.2012 dated 30.04.2012
Ex.B46 is the original property tax receipt of H.No.185116 for the period 01.04.2012 to 31.03.2013 dated 14.08.2012
Ex.B47 is the original property tax receipt of H.No.185117 for the period 01.04.2012 to 31.03.2013 dated 14.08.2012
Ex.B48 is the original property tax receipt of H.No.185118 for the period 01.04.2012 to 31.03.2013 dated 14.08.2012
Ex.B49 is the original property tax receipt of H.No.185119 & 120 for the period 01.04.2012 to 31.03.2013 dated 31.03.2013
Ex.B50 is the original property tax receipt of H.No.185426 for the period 01.04.2012 to 31.03.2013 dated 14.08.2012
26 O.S.No.402 of 2008
Ex.B51 is the original property tax receipt of H.No.185116 for the period 01.04.2013 to 31.03.2014 dated 13.08.2013
Ex.B52 is the original property tax receipt of H.No.185117 for the period 01.04.2013 to 31.03.2014 dated 13.08.2013
Ex.B53 is the original property tax receipt of H.No.185118 for the period 01.04.2013 to 31.03.2014 dated 13.08.2013
Ex.B54 is the original property tax receipt of H.No.185426 for the period 01.04.2013 to 31.03.2014 dated 13.08.2013
Ex.B55 is the certified copy of will dated 27.11.1992 executed by V.Vijay Kumari
Ex.B56 is the certified copy of will bearing document No.3/1964
Ex.B57 is the certified copy of agreement of lease dated 01.10.2017 document No.311/2017
Ex.B58 is the certified copy of agreement of lease dated 31.10.2017 document No.941/2018
Ex.B59 is the notarized copy of building permit order dated 21.06.2011 issued by GHMC Town Planning Section
Ex.B60 is the notarized copy of building permit order dated 22.10.2014 issued by GHMC Town Planning Section
Ex.B61 is the notarized copy of license for retail sale of toddy dated 07.03.2015 issued by Prohibition and Excise Superintendent, Dhoolpet
Ex.B62 is notarized copy of renewal endorsement dated 18.12.2017 issued by District Prohibition and Excise Officer of Hyderabad
Ex.B63 is the notarized copy of proceedings of District Prohibition and Excise Officer of Hyderabad dated 18.12.2017
Ex.B64 is five photographs along with CD
Sd/
V.A.L.SATHYAVATHI
XXV ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDERABAD.