IN THE COURT OF THE I ADDL.DISTRICT JUDGE,
KHAMMAM DISTRICT
PRESENT:- SRI .V. BALA BHASKAR RAO,
I ADDITIONAL DISTRICT JUDGE,
KHAMMAM
Dated this the 12 th day of August, 2021
APPEAL SUIT No. 05 OF 2017
BETWEEN:-
Bondili Suvarna Bai, W/o. Narender Singh, Age: 61 years, Occu: House hold, R/o. H.No.2-48, Bhakta Ramdas Mandiram Road, Nelakondapalli Village and Mandal, Khammam District … Appellant/Plaintiff.
A N D
1. Patangi Rajeswari, S/o. Nagabhushanam, Age: 67 years, Occu: House hold, R/o. H.No.2-49, Bhakta Ramdas Mandiram Road, Nelakondapalli Village and Mandal, Khammam District
2. Patangi Pavan Kumar, S/o. Nagabhushanam, Age: 47 years, R/o. H.No.2-49, Bhakta Ramdas Mandiram Road, Nelakondapalli Village and Mandal, Khammam District.
3. The Panchayath Secretary, Grampanchayath, Nelakondapalli Village and Mandal, Khammam District.
…Respondents/defendants.
APPEAL preferred by the Appellant/plaintiff having been aggrieved by the Judgment dated 16.09.2015 passed by the learned Prl. Junior Civil Judge, Khammam in O.S.186 of 2008.
BETWEEN:-
Bondili Suvarna Bai, W/o. Narender Singh, Age: 61 years, Occu: House hold, R/o. H.No.2-48, Bhakta Ramdas Mandiram Road, Nelakondapalli Village and Mandal, Khammam District … Plaintiff.
and
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1. Patangi Rajeswari, S/o. Nagabhushanam, Age: 67 years, Occu: House hold, R/o. H.No.2-49, Bhakta Ramdas Mandiram Road, Nelakondapalli Village and Mandal, Khammam District
2. Patangi Pavan Kumar, S/o. Nagabhushanam, Age: 47 years, R/o. H.No.2-49, Bhakta Ramdas Mandiram Road, Nelakondapalli Village and Mandal, Khammam District.
3. The Panchayath Secretary, Grampanchayath, Nelakondapalli Village and Mandal, Khammam District.
...Defendants.
This Appeal coming before me for final hearing in the presence of Sri A.Sarath Chander, Advocate for the Appellant/Plaintiff and Sri Kolli Satyanarayana, Advocate for Respondent No.1 and 2/Defendant No.1 and 2 and Government Pleader for the Respondent No.3/Defendant No.3, upon perusal of the material papers on record and the matter having been stood over till this day for consideration, this Court delivered the following:-
J U D G M E N T
1.This appeal is preferred by the appellant/plaintiff against the
Judgment and Decree dt.16.09.2015 in O.S.No.186/2008 on the file learned Principal Junior Civil Judge, Khammam dismissing the suit filed by the appellant/plaintiff seeking the relief of perpetual injunction against respondents/defendants.
2.The parties to the appeal suit will be referred as they are arrayed in the trial court for the sake of convenience and to avoid confusion.
3.The plaintiff filed the suit seeking the relief of perpetual injunction restraining the defendants and their men from ever interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.
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4-A. The brief facts of the plaint are that late Rajaputi
Bheekam Singh had four daughters namely 1. Bondili Suvarna
Bai(Plaintiff) 2. Bondili Vanee Bai 3. Rajaputra Padmavathi 4. Bondili
Jayanthee Bai and performed their marriages. Late Rajaputi
Bheekam Singh was the owner and possessor of Mangalore tiled house bearing No.2-52( New 2-48) along with open site to the extent of 730 Sq.yds and his name was recorded in the Gram Panchayat records as owner and possessor of the said house and he enjoyed the same till his death. That during his life time on 4.1.1993 the said
Rajaputi Bheekam Singh executed registered Will deed bearing document No.1/1993 by bequeathing the above said property in favour of his four daughters and that subsequently he died on 26.08.2005, leaving behind his four daughters as his soul legal heirs and successors and they succeeded the said property jointly after the demise of their father. The plaintiff has been residing in the said house with the permission of her sisters and that in Southern side of the said house, the house bearing No.2-49 of late Panthangi
Nagabhushanam is situated and he also died long back and that the defendant No.1 and 2 being his wife and son are residing. That there is a mud wall to the extent of 90 feet in the Western side of house bearing No.2-48, in between the houses of the plaintiff and defendants No.1 and 2 which belongs to H.No.2-48 succeeded by the plaintiff and her three sisters and that the said mud was exclusively belongs to the plaintiff and the defendants No.1 and 2 are no way 4
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concern with mud wall of the plaintiff. Previously there was a cattle shed and subsequently it was collapsed during the life time of father of plaintiff.
4-B.That about one and half year back the defendants No.1 and 2 wanted to construct a wall by removing the old mud wall and they tried to start construction by demolishing the old mud wall, then the plaintiff raised the objections for the said construction, that the defendants No.1 and 2 expressed that they intend to construct the same was jointly, but the plaintiff did not accept the same as the said mud wall exclusively belongs to the family of plaintiff. That since the defendants are making illegal attempts to start construction, the plaintiff approached the defendant No.3 and made application for the measurement of the sites and fix boundary line between the houses of plaintiff and defendants No.1 and 2.
Basing on the said application the defendant No.3 issued notice
dated 30.10.2006 vide proceedings in ROC.No.545/2006 calling upon
the plaintiff and defendants to be present at the spot with their documents for their verification. Accordingly, on 7.11.2007 the then
Panchayat secretary, Nelakondapalli Grampanchayat and Sarpanch and the staff of the Grampanchayat inspected the suit schedule property and after verifying the documents, measured the area and fixed the boundaries by obtaining the signatures of the plaintiff and defendants and gave the decision that the suit schedule property 5
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exclusively belongs to the plaintiff and defendants No.1 and 2 are in no way concerned with the suit schedule property.
4-C.Due to the errors in decision regarding the measurements, the plaintiff made another application on 9.11.2006 as the measurements on the Southern side house of the plaintiff and
Northern side of Puranam Damayanthi house ie., from back side of the wall to the disputed area it was mentioned as 34 feet instead of 39 feet and that again the defendant No.3 inspected the spot and measured the same and passed the decision on 26.12.2006 and rectified the same and the said decision was signed by the plaintiff, defendants in the presence of elders and the then Secretary,
Grampanchayat, Nelakondapalli and Sarpanch of the said Gram panchayat. As per the said decision of defendant No.3, the suit schedule property exclusively belongs to plaintiff and passed the resolution permitting the plaintiff to construct a new wall.
4-D. Recently the defendants No.1 and 2 in collusion with staff of the defendant No.3 tried to obtain permission to construct wall by encroaching property of the plaintiff in the month of March, 2008 and that the staff of the defendant No.3 came to the suit schedule property and taken the photographs and through their words, the plaintiff came to know that they are going to give permission to the defendants No.1 and 2 for construction of a wall by violating the previous decision dated 26.12.2006. Immediately the plaintiff approached the defendant No.3 and shown the decision 6
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passed by the then Secretary of defendant No.3, but the secretary of the defendant No.3 did not listen and hence, on 28.3.2008 the plaintiff filed a petition before the Government of Andhra Pradesh.
Parishkruthi by enclosing all the documents and requested for action and the same is pending for consideration. On 29.03.2008, the defendants No.1 and 2 tried to start construction work by removing the mud wall and that with great difficulty the plaintiff could resist them. The defendants are threatening the plaintiff by using force.
Hence this suit.
5-A.The written statement was filed by the defendant No.1 on his behalf and on behalf of the defendant No.2 contending that the averments made in the plaint are not true and correct. The suit is not maintainable as all the sisters of the plaintiff are not made as parties to the suit. The father of the plaintiff i.e. late Bheekam Singh has not purchased the property of his own, but his brother-in-law
Ramachandar Singh purchased the property from one Hari
Viswanadham and that till date the name of the said Hari
Viswanadham finds place in the Grampanchayat records. That unless the sale deed or agreement executed by Hari Viswanadham is not filed before the court, it is very difficult to ascertain the extent and dimensions for the property. The boundaries as mentioned in the suit schedule property does not disclose the existence of property under the Will i.e. H.No.2-52. The Will is also silent about the boundaries of the House bearing No.2-52, as such, there is no 7
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documentary proof filed by the plaintiff to substantiate her claim with regard to the suit schedule property.
5-B.That originally the father-in-law of the defendant No.1 by name Panthangi Narasimha Ramaiah constructed a tiled house after obtaining permission from Grampanchayat Nelakondapally on 05.09.1957 vide proceeding No.704. In the said permission, the name of Hari Viswanadham was referred. That later on Panthangi
Narasimha Ramaiah enjoyed the possession of the property till the year 1964 and paid property tax to the Grampanchayat. That towards the East to the property owned by Panthangi Narasimha Ramaiah there is a compound wall constructed with mud to a length of 90’.
The said mud wall is still in existence with certain damages. That out of the said 90’ length of compound there is a curve taken place and still the same is in existence i.e. the compound wall is not a straight one, but it has different dimensions.
5-C.The plaintiff is claiming the above said compound wall is of their own and that the defendant No.1 and 2 have no right over the same. That, after the death of Panthangi Narasimha Ramaiah in the year 1969, the defendant No.1 and her family was staying in another house belonging to him which is towards the North to the house bearing No.2-49. The defendant No.1 was granted with a house under a Government scheme and with that funds the defendant No.1 constructed four rooms RCC building in the place of the said dilapidated house. The compound wall raised by the Panthangi 8
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Narasimha Ramaiah is kept as it is. The defendants No.1 and 2 never attempted to demolish the existing compound wall or construct the new one as alleged. Hence, to dismiss the suit with exemplary costs.
6.The defendant No.3 filed written statement contending that the averments made in the plaint are not true and correct. As per the records of the Grampanchayat, one Hari Viswanadham is the owner of House No.2-48 (Old 2-52). The then Grampanchayat
Secretary physically verified the disputed site on 07.11.2006 again on 26.12.2006 and no permission was given to anybody. But, the
Grampanchayat passed the resolution on 19.03.2008 vide Resolution
No.5(4) to issue permission to defendant No.1 for construction of the compound wall, while the matter stood thus the defendant No.3 received summons from this court hence, no permission was issued in favour of anybody. There is no collusion between the defendant No.3 and defendants No.1 and 2. There is no cause of action for the plaintiff to file this suit and the plaintiff approached the court with unclean hands and hence, to dismiss the suit with costs.
7.Basing on the above pleadings the following issues are settled for trial before the trial court.
1. Whether plaintiff is entitled for permanent injunction as prayed for?
2. To what relief?
8. During course of trial before the trial court on the side of the plaintiff, PW1 to PW3 are examined and Ex.A1 to A11 are marked and 9
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on side of the defendants, DW1 and DW2 are examined and Ex.B1 to
B22 are marked.
9.The learned trial judge, after hearing the arguments on behalf of the plaintiff and on behalf of the defendant Nos.1 to 3 and after going through the record, held that the plaintiff is not entitled for the relief of permanent injunction and dismissed the suit with costs.
10.As stated above, aggrieved by the findings of the trial court, the plaintiff herein preferred the present appeal on the following grounds.
i.The judgment of the lower court is contrary to the facts established and the law applicable to such facts and that the judgment and decree are contrary to the settled legal position.
ii.The learned trial court ought to have decreed the suit of the plaintiff holding that the plaintiff is entitled for injunction in respect of the appeal schedule property.
iii.The learned trial court failed to appreciate the legal plea raised by the plaintiff in accordance with the settled principles of law.
iv.The learned trial court has not appreciated the evidence brought out in the form of cross-examination by the contesting defendants.
v.The learned trial court ought to have held that the plaintiff is entitled for the equitable relief of injunction, as the plaintiff came to the court with clean hands.
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vi.The learned trial court ought to have appreciated that the plaintiff filed the suit with an authority in writing from her late father through the Registered sale deed No.1/1993, vii.The learned trial court came to an erroneous conclusion that the evidence adduced by the defendant Nos.1 and 2 on their behalf supports their version, which is against the provisions of the Indian
Evidence Act.
Therefore, the plaintiff filed the present appeal to set aside the impugned judgment and decree dt.16-09-2015 passed in
O.S.No.186/2008 by the Prl. Junior Civil Judge, Khammam.
11.Heard arguments on behalf of the plaintiff and the arguments on behalf of the defendants no.1 to 3. Perused the record.
12.In view of the contentions raised by the plaintiff and defendants no.1 to 3 the following points will arise for determination in the present appeal.
1. Whether the plaintiff was in lawful possession and enjoyment of the suit schedule property by the date of filing of the suit?
2. Whether the plaintiff is entitled for the relief of perpetual injunction against the defendants as prayed for?
3. Whether the plaintiff has shown sufficient grounds to set aside the impugned judgment?
4. To what relief?
POINTS NO.1 to 3:
13. The plaintiff filed the suit for perpetual injunction to restrain the defendants no.1 and 2 and their men from interfering 11
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with her possession and enjoyment of the suit schedule property and to restrain them from obtaining permission from the defendant
No.3 in construction of the said compound wall i.e. the suit schedule property. In such circumstances, the burden is on the plaintiff to prove that by the date of filing of the suit that she was in lawful possession and enjoyment of the suit schedule property and that the defendants No.1 and 2 without having any manner of right over the schedule property tried to interfere with her possession and enjoyment of the suit schedule property and that thereby she is entitled for the relief of perpetual injunction. Since the plaintiff filed the above suit, the plaintiff has to stand or fall on the evidence adduced by her before the trial court and cannot depend upon the weakness in the case of the defendants if any
14.In this regard as stated above on the side of the plaintiff,
PW1 to PW3 are examined and Exs. A1 to A11 are marked. The plaintiff examined herself as PW1 and filed her chief examination affidavit with similar averments that are made in the plaint. In the further chief examination affidavit of PW1, Ex.A1 to A11 are marked.
Ex.A.1 is Original un-registered agreement dated 26.11.1970 by RDO,
Khammam, Ex.A.2 is Original un-registered agreement of sale dated 29.03.1979 (impounded by RDO, Khammam), Ex.A.3 is Application
dated20.05.1971toExecutiveOfficer,Nelakondapally
Grampanchayat, Ex.A.4 is Death Certificate of R.Bheekam Singh,
Ex.A.5 is Registered Will deed, dt.04.01.1993, Ex.A.6 is Original 12
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notice issued by Panchayat Secretary, Nelakondapally,
Grampanchayat, dt.13.06.2006, Ex.A.7 is copy of letter addressed by
B.Suvarna Bai, dt.09.11.2006 to Panchayat Secretary, Nelakondapalli
Grampanchayt its copy to DPO, Ex.A.8 is Receipt issued by Collector
Office, Khammam dt.28.03.2008 in receipt of complaint, Ex.A.9 is rough sketch, Ex.A.10 is Miscellaneous receipt issued by Panchayath
Secretary dt.01.03.2008 and Ex.A.11 is Plan.
15.PW2 Bondili Praveen Singh son of the plaintiff and who is residing at Vijayawada deposed that the schedule disputed wall is situated towards Western side of their house bearing No.2-48 and that their house is inclusive of backyard of the open place from South to North and the disputed wall is 90 feet and that he is filing the map de-marking the disputed wall running from South to North at the backyard of their house. PW2 stated the existing mud wall towards
Western side of their house exclusively belongs to plaintiff and that the defendants No.1 and 2 have no concern with the mud wall and that prior to the filing of the suit, the defendants No.1 and 2 wanted to construct a wall by removing the old mud wall and tried to start construction of the wall by demolishing the old wall and then the plaintiff raised objection for construction of the wall. PW2 deposed about inspection by the grampanchayat authorities at the suit schedule property on 07.11.2006 and 26.12.2006 and that after inspecting the suit schedule property and after verifying the documents measured the area and fixed the boundaries by way of 13
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obtaining the signature of his mother and defendants No.1 and 2 and gave the decision on 07.11.2006 stating that the mud wall exclusively belongs to the plaintiff and defendants No.1 and 2 have no concern with the schedule property and that again on 26.12.2006 inspected and remeasured and passed the decision on 26.12.2006 on the application made by his mother on 09.11.2006 and that the said document was signed by the plaintiff along with the defendants No.1 and 2 before the elders, namely, P.Divakar, R.Ramachandar singh,
R.Satyanarayana Singh, R.Natraj Singh, K.Venu, Sarpanch and Vice-
Sarpanch of Nelakondapally and the Panchayat Secretary. PW2 stated the plaintiff filed the suit when the defendants No.1 and 2 in collusion with the defendant No.3 against the previous decision of the defendant No.3 trying to obtain permission to construct a new wall and trying to encroach into the suit schedule property.
16.PW3 R.Satyanarayana Singh, resident of Khammam deposed that plaintiff is the daughter of his eldest brother
R.Bheekam Singh and she is residing in the house bearing No.2-48,
Bhakta Ramdas Street, Nelakondapally Mandal and that his brother died on 26.08.2005, leaving behind four daughters and the plaintiff is the elder daughter and other three daughters of his elder brother are married and living in different places and that plaintiff is residing in the above house. PW3 stated his elder brother executed the registered Will bearing No.1/1993, dt.04.01.1993 bequeathing the schedule property in favour of his four daughters. PW3 stated the 14
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schedule property comprising of 730 square yards including of the house bearing old No.2-52 subsequently re-numbered as 2-48. PW3 corroborated the evidence of PWs 1 and 2 regarding the inspection and measurement of the disputed wall by the panchayat authorities on 07.11.2006 and 26.12.2006 and that the disputed mud wall exclusively belongs to the plaintiff and that the defendants No.1 and 2 have no concern with the said wall and that the plaintiff filed an application on 28.03.2008 before the District Collector, Khammam stating the reasons that the new Secretary of the Nelakondapally
Grampanchayat has issued permission to the defendant for construction of wall ignoring the earlier Grampanchayat decision on 26.12.2006 and that on 28.03.2008 he accompanied the plaintiff and that subsequently they approached the defendant No.3 on 29.03.2008 not to allow the construction of the new wall by the defendants, but the defendant No.3 expressed his inability and advised to approach the civil court for proper adjudication.
17.After closure of the evidence on the side of the plaintiff, on the side of defendants No.1 and 2, DW1 and DW2 are examined.
No evidence is adduced on the side of the defendant No.3. The defendant No.1 filed his chief examination affidavit with the similar averments that are made in the written statement. In the further chief examination of DW1, exhibits Ex.B.1 to Ex.B.22 are marked.
Ex.B.1 is Permission proceedings of Sarpanch, Grampanchayath,
Nelakondapalli dt.05.09.1957, Ex.B.2 is proceedings of Panchayath 15
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Secretary, Nelakondapally dt.13.09.2004, Ex.B.3 is Notice issued by
Grampanchayat Office dt.30.10.2006, Ex.B.4 isReceived copy of petition dated 02.01.2007, Ex.B.5 is Copy of petition dt.08.01.2007,
Ex.B.6 is Copy of petition dt.06.04.2007, Ex.B.7 is copy of petition dt.24.07.2007, Ex.B.8 is copy of petition dt.04.04.2008, Ex.B.9 is copy of petition dt.07.11.2012 to E.O., Nelakondapalli, Ex.B.10 is
Application dt.07.11.2012 to Panchayath Secretary, Nelakondapally,
Ex.B.11 is Proceedings of Panchayath Secretary, dt.17.12.2012,
Ex.B.12 is copy of petition dt.17.12.2012 to E.O., Nelakondapally
Grampanchayat, Ex.B.13 is Copy of petition, dt.12.12.2012 to MDO,
Nelakondapally, Ex.B.14 is copy of petition, dt.02.01.2013 to
E.O.,Nelakondapally, Ex.B.15 is Receipt issued by Parishkruthi
Grievance Tracking system (2Nos), Ex.B.16 is Approved layout plan,
Ex.B.17 is House Tax demand notice, dt.21.07.2010, Ex.B.18 is House
Tax demand notice, dt.29.12.2011, Ex.B.19 is House Tax receipt dt.04.08.2004, Ex.B.20 isHouse tax receipts (15 nos.), Ex.B.21 is
House tax demand notice and receipt and Ex.B.22 is Photographs (9
Nos.) along with two CDs.
18.DW2 Vunnam Jagadishchandra Bose, resident of
Nelakondapally village filed his chief examination affidavit stating that he knows the house of defendants as well as the plaintiff which are adjacent to each other and situated at Brahmin bazar, Bhakta
Ramdas Mandir Road, Nelakondapally and that during the life time of
Nagabushanam and later on as per the request of defendant Nos.1 16
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and 2 he attended the miscellaneous works at their house and that on the East of the house of the defendants No.1 and 2, the house of the plaintiff is situated and in between two houses one old compound wall is existing which is within the place of defendants
No.1 and 2 and that since 1992 onwards he observed that the said wall is in the possession of the defendants and that the wall is constructed by the mud and stones and due to rain and other reasons damage is caused to the said wall and as such, he along with other coolies repaired the damages by filling mud in the gap between the walls.
19.The plaintiff has described the suit schedule property in the plaint as follows:
SCHEDULE OF PROPERTY
The old mud wall was lying in the Western side of the house of plaintiff i.e. on the Eastern side of the house of the defendant, consisting of 90 feets, running from Galli road to the site of Gudi Lokanadha Sharma situated at Bhakta Ramdas Mandiram Road, Nelakondapally vilage and mandal, Khammam District.
East:House of plaintiff West:House of defendant North:Galli road South:Site belongs to Gudi Lokanadha Sharma(died) now his family members/
20.As stated above, the plaintiff filed the present suit claiming to be the possessor of the suit schedule property and that the same is part of the house property bearing No.2-48(Old No.2-52) which is to the extent of 730 sq. yds. belonging to her father 17
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R.Bheekam Singh who executed the registered will bearing document No.1/1993 dt.04.01.1993 Ex.A.5 bequeathing the above house property in favour of his four daughters and that Bheekam
Singh died on 26.08.2005 and the plaintiff is residing in the above said house properties with the permission and consent of her sisters.
21.The plea of the plaintiff is that the suit schedule property i.e. the disputed mud wall which is to the length of 90 feet is situated in the Western side of her house property in between the house of the plaintiff bearing Door No.2-48 and the house of the defendants
No.1 and 2 and that the said disputed mud wall exclusively belongs to the plaintiff and that the defendants No.1 and 2 are no way concerned with the said mud wall. The plaintiff filed the present suit stating that the present panchayat secretarty of Nelakondapally
Grampanchayat i.e. defendant No.3 gave permission to the defendant Nos.1 and 2 for construction of the disputed mud wall by violating the previous decisions of the earlier panchayat secretary,
Nelakondapally Grampanchayat dt.26.12.2006 and that the defendants No.1 and 2 are trying to make construction by removing the disputed mud wall belonging to the plaintiff and hence, the present suit.
22.The plea of the defendants No.1 and 2 is that the disputed mud wall does not exclusively belongs to the plaintiff and no document is filed by the plaintiff to prove that the disputed mud wall exclusively belongs to the plaintiff. The mud wall situated 18
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towards East of the house of the defendants No.1 and 2 to the length of 90 feet is in existence since long time and that there is no cause of action for the plaintiff to file the present suit and she has approached the court with false averments and as such, the plaintiff is not entitled for the relief prayed for in the above suit.
23.In a reported case at AIR 2008 SC 2033 Anathula Sudhakar
Vs. P.Buchi Reddy it was held as follows:
“17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.”
24.In the instant case the plaintiff has sought the relief of the perpetual injunction only and whereas the plea of the defendants No.1 and 2 is that the suit as filed by the plaintiff is not maintainable as the plaintiff is not having any exclusive title over the schedule property. In the cross-examination, the plaintiff (PW1) stated in Ex.A.1 there was no reference about the compound wall and to whom it belongs to. As per the recitals of Ex.A.1, the house property was purchased by Ramchander Singh who is the brother-in- law of Bheekam singh and that Ramchander Singh purchased the said property from the original owner Hari Viswanadham. As admitted by the plaintiff(PW1) from the recitals of Ex.A.1, it is clear that there is no mention about the existence of the mud wall on the western side 19
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of the said house property. As per Ex.A.2, Ramchander Singh executed agreement of sale dt.29.03.1979 in favour of Bheekam
Singh alienating the house bearing No.2-52 and delivered possession in lieu of the debt obtained from Bheekam Singh to a tune of
Rs.15,000/-. Ex.A.2 does not contain any schedule of the property.
25.As stated above, Bheekam Singh bequeathed the house property bearing door No.2-52 in favour of his four daughters vide
Ex.A.5 Registered Will dt.04.01.1993. Plaintiff (PW1) is the eldest daughter of Bheekam Singh. In the cross-examination PW1 admitted that Ex.A.5 does not show the boundaries of their house and compound wall. PW1 admitted, in between her house and house of defendant No.1 there is compound wall running from North towards
South which was made with mud and stones which is in existence, but there are some damages to the wall. PW1 admitted that there is no record to show the said wall belongs to them. PW1 stated, during the life time of her father there was no panchayat between her and husband of defendant No.1 regarding the compound wall and that she made an application to the Grampanchayat in May, 2006 to settle the boundary disputes between her and the defendants. PW1 stated basing on her representation, notice under Ex.A.6 was issued by the
Panchayat authorities stating that they will visit the disputed place on 07.11.2006 to resolve the boundary dispute. PW1 also stated the panchayat authorities came to the disputed property and took measurements, but they did not issue any certificate or resolution 20
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and she admitted that the authorities resolved that the compound wall belongs to the defendant No.1.
26.The above evidence on record elicited in the cross- examination of PW1 shows that there was a denial of title of the plaintiff over the schedule property by the defendants No.1 and 2 prior to the date of filing of the suit and in said circumstances, the plaintiff ought to have filed the suit seeking the relief of perpetual injunction by paying the court fees under section 26(a) of A.P.Court
Fee and Suit Valuation Act, but the plaintiff filed the present suit by paying the court fee under section 26(c ) of A.P. Court Fee and Suit
Valuation Act which is not proper and correct.
27.The evidence of PW1 further shows that again on application submitted by her on 09.11.2006, to again measure on the
Southern side of her house that the panchayat authorities inspected the site and remeasured the same on 26.12.2006 and passed the decision and obtained her signature and the signature of her son and the defendant No.1 on the said document. Though, PW1 stated that she filed the said decision dt.26.12.2006, the said document is not filed by the plaintiff and the same is not marked as an exhibit on the side of the plaintiff. PW1 denied the suggestion that she did not file the resolution dt.26.12.2006 as the said document shows that the disputed compound wall belongs to the defendant No.1. The rough sketch and the plan marked as Ex.A9 and Ex.A.11 are prepared by the plaintiff and there is variation in the said documents with regard to 21
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the existence of the disputed mud wall and as such, no reliance can be placed on the said documents.
28.In the cross-examination PW2 the son of the plaintiff stated vide document dt.26.12.2006 it is resolved that the disputed wall belongs to them. Admittedly, the said evidence of P.W.2 is contrary to the evidence of PW1, wherein PW1 admitted in the cross- examination that the panchayat authorities resolved that the compound wall belongs to the defendant No.1. As stated above, the document/resolution dt.26.12.2006 is not filed before this court and no steps are taken by the plaintiff to cause produce the said documents from the office of the defendant No.3. In the written statement, the defendant No.3 got mentioned that the then
Grampanchayat secretary physically verified the disputed site on 07.11.2006 and again on 26.12.2006 and no permission was given to anybody.
29.Since the plaintiff filed the present suit seeking the relief of perpetual injunction against defendants No.1 and 2, as stated above the burden of proof is on the plaintiff to prove that she is entitled for the said relief. Having taken the plea that the suit schedule property is the exclusive property of the plaintiff, but the plaintiff failed to adduce cogent evidence in support of the said contention. The documents marked as Ex.A.1 to A.11 does not show that the disputed compound mud wall exclusively belongs to the plaintiff. The plaintiff failed to give any proper explanation for non 22
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filing of the resolution dt.26.12.2006. Further, in the cross- examination it is categorically admitted by the plaintiff (PW1) that the Grampanchayat authorities after measurements resolved that the compound wall belongs to defendant No.1. In such circumstances, the suit filed by the plaintiff seeking the relief of perpetual injunction simplicitor is not maintainable and since there is a cloud over the title of the plaintiff in respect of the suit schedule property and in view of the ratio laid down in the above reported case at AIR 2008 SC 2033 that the plaintiff ought to have filed the suit seeking the relief of declaration of her title in respect of the suit schedule property. Nothing wrong is elicited in the cross- examination of DW1 and DW2 to prove the contentions of the plaintiff that the plaintiff was in lawful possession and enjoyment of the suit schedule property by the date of filing of the suit.
30.In view of the facts concerning to this case, since the plaintiff filed the suit seeking the relief of perpetual injunction over the suit schedule property, that the plaintiff has to prove that she was in lawful possession of the suit schedule property by the date of filing of the suit and in view of the fact that the plaintiff has failed to prove that she was in lawful possession and enjoyment of the suit schedule property by the date of filing of the suit, and as the suit filed by the plaintiff without seeking the relief of declaration of title, it is found not maintainable that the plaintiff is found not entitled for the relief of perpetual injunction as prayed for. In such 23
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circumstances, the various grounds shown by the plaintiff to set aside the impugned judgment are found not tenable and further on close perusal of the impugned judgment it shows that the findings recorded by the trial court on the issues settled in the suit are based upon cogent reasons and warrants no interference as such, it is to be held that the impugned judgment passed by the trial court is sustainable in law and needs no interference and hence Point nos1 to 3 are answered accordingly against the plaintiff.
POINT NO.4:
31.Since point nos.1 to 3 are answered against the plaintiff the appeal filed by the plaintiff is liable to be dismissed.
32. In the result, the Appeal preferred by the appellant/plaintiff is dismissed with costs by confirming the Judgment and decree passed by the trial Court in O.S. No.186 of 2008, dt 16.09.2015 on the file of the Prl.Junior Civil Judge, Khammam.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in the open court on this the 12th day of
AugustJuly, 2021.
I ADDL. DISTRICT JUDGE
KHAMMAM
APPENDIX OF EVIDENCE
APPELLANT: Nil RESPONDENT : Nil
I ADDL. DISTRICT JUDGE
KHAMMAM.
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