Smt. V. Bhavani

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE;

TIRUPATI.

PRESENT: Smt. V.Bhavani,

I Additional Junior Civil Judge,

Tirupati

Friday, the 8th day of May, Two thousand and fifteen

O.S.NO. 220 OF 2014

Between: Koneti Subramanyam, S/o late K. Veeraswamy, Hindu, aged years, residing at D.No.5-36/45, Rajiv Nagar Colony, Madhava Nagar, Tirupati. … Plaintiff

And:

Tirumala Tirupati Devasthanams, represented by its Executive Officer, holding its office at Administrative buildings, K.T. Road, Tirupati. … Defendant

This suit coming on 10.04.2015 before me for final hearing in the presence of Sri M. Nagaraju, Advocate for plaintiff, and of Sri L. Madhusudhan Reddy, Advocate for Defendant and upon hearing both sides, upon perusal of material available on record and this matter having stood over for consideration till this day, this court delivered the following:

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

This is a suit filed by the plaintiff for declaration that he is the legal heirs of deceased K. Veeraswamy and for costs.

2. The brief averments in the plaint are as follows:

The plaintiff submitted that K. Veeraswamy is the father of plaintiff and the said Veeraswamy died on 03.09.2005 leaving behind the plaintiff as his legal heir to succeed his estate. Further during the life time of

Veeraswamy had been eaked his livelihood by obtaining hawkers license from the TTD and same was given to him in Roc. No.

PO.5/307/AEO(Rev)/TTD/TML/1987 dt: 08.09.1994 and after the death of

Veeraswamy the plaintiff approached several times to the TTD officials to 2 transfer the hawker license in the name of plaintiff by way of representation and on consideration of the representation, TTD officials directed the plaintiffs to produce legal heir Certificate in its notice in Roc.

No.Rev.5/481/AEO(Rev)/TML/2014 dt: 24.06.2014. Further the Family member certificate issued by the Tahsildar was not accepted and there was no legal heir certificate and only declaration has to be obtained for the declaration of character. Hence the suit.

3.The E.O of the TTD ie., defendant appeared before this court and filed its written statement and submitted that at the time of allotting hawker license the said K. Veeraswamy has not furnished the particulars of his family members, hence the defendant is not aware of the alleged relationship of plaintiff with the said K. Veeraswamy and the plaintiff has to prove the relationship and so also death of the said K. Veeraswamy. Further int he absence of this court orders the TTD cannot decide the legal heirs of deceased, hence TTD issued proceedings and directed to get orders from the court, even to examine the request of the plaintiff. Further the hawker license is not the property of allottee, to be inherited by the legal heirs, after the death of allottee and the license was granted only on humanitarian grounds to do business for livelihood and it is not transferable, but the TTD issued proceedings and directed the plaintiffs to produce legal heirs certificate from the competent court of law.

Further it is for the plaintiff to prove his relationship with original allottee and they cannot be declared as legal heirs only on the basis of alleged family members certificate and the suit is barred by limitation.

Hence prayed to dismiss the suit.

4. Basing on the above pleadings, the following issues are framed:

1 Whether the plaintiff is entitled for declaration by declaring that the plaintiff is the legal heir of the deceased K. Veeraswamy having succeeded to the plaint schedule hawker license including renewal of license of the said property from the defendant?

2 To what relief ?

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5. During the course of trial, on behalf of the plaintiff, PWs-1 and PW-2 are examined and through PW-1 Ex.A-1 to A-6 are marked. On behalf of the defendant DW-1 is examined and no document is marked on behalf of the defendants.

6. Heard both the sides and perused the record.

7. Issue No.1:

The learned counsel for plaintiff argued that one Veeraswamy died on 03.09.2005 leaving behind the plaintiff as his legal heir to succeed his estate. and the said Veeraswamy had been eaked his livelihood by obtaining hawkers license from the TTD and same was given to him and after the death of Veeraswamy the plaintiff approached several times to the

TTD officials to transfer the hawker license in the name of plaintiff by way of representation and on consideration of the representation, TTD officials directed the plaintiffs to produce legal heir Certificate in its notice.

8.The learned counsel for defendant argued that the defendant is not aware of the alleged relationship of plaintiffs with the said K.

Veeraswamy and the plaintiff has to prove the relationship and so also death of the said K. Veeraswamy. Further in the absence of this court orders the

TTD cannot decide the legal heirs of deceased, hence TTD issued proceedings and directed to get orders from the court, even to examine the request of the plaintiff. Further the hawker license is not the property of allottee, to be inherited by the legal heirs, after the death of allottee and the license was granted only on humanitarian grounds to do business for livelihood and it is not transferable, but the TTD issued proceedings and directed the plaintiff to produce legal heirs certificate from the competent court of law.

9. Before adverting to the rival contention made on both the sides and the ocular evidence adduced on both the sides, it is necessary to look into the documentary evidence produced by both the sides. PW-1 exhibited

Ex.A-1 to A-6, it is seen that Ex.A-1 Proceedings issued by the E.O, TTD,

Tiruapti in favour of deceased K. Veeraswamy dt: 08.09.1994, Ex.A-2 is 4

Original copy of Hawker license in the name of deceased K. Veeraswamy,

Ex.A-3 is Death Certificate issued by the Registrar of Births and deaths

Tirupati Municipality, Ex.A-4 is Notice issued by the defendant to plaintiff

dt: 24.06.2014, Ex.A-5 is Family member certificate issued by the Tahsildar,

Tirupati Urban Mandal, Tirupati dt: 25.02.2009 and Ex.A-6 is Residence

Certificate issued by Tahsildar, Tirupati Urban Mandal in the name of the plaintiff.

10.The Issue No. 1 cast burden on the plaintiff to prove that he is the legal heir of the deceased K. Veeraswamy.

11. To discharge the burden, the plaintiff examined himself as

PW-1 by filing chief affidavit in lieu of his examination in chief wherein he reiterated the plaint pleadings and as such examination in chief of PW-1 is nothing but replica. In cross-examination he deposed that he is the only son to his father K. Veeraswamy and he has voter card and ration card and he has no idea whether his father has ration card and he is residing at D.No.5- 36/45, Madhava Nagar, Tirupati.

12. One Baddela Sathish who is 3rd party to the suit filed his affidavit as chief examination and examined as PW-2 stating that K. Veeraswamy had hawker license obtained from the defendant and the said Veeraswamy died on 03.09.2005 leaving behind him his only ie. plaintiff as legal heir to succeed his estate. In cross-examination he deposed that plaintiff is running a shop since 20 years and plaintiff is only son of his parents. He further deposed that the deceased K. Veeraswamy and he died in the year 2005, but he cannot say the date of his death and the wife of Veeraswamy also died.

13. One G. Sridhar who is working as Superintendent in Revenue

Section, TT Devasthanams, Tirumala filed his chief affidavit in lieu of his examination in chief wherein he reiterated the written statement allegations and such examination in chief of DW-1 in nothing but replica of written statement. In cross-examination he admitted that TTD issued license in proceedings in the year 1994 in favour of K. Veeraswamy and the said 5

Veeraswamy was died. He further deposed that he does not know the legal heirs of the deceased Veeraswamy. He further admitted that the plaintiff approached the defendant for transfer the license in favour of plaintiff and the plaintiff made representation before TTD for transfer of license of deceased Veeraswamy in favour of plaintiff. He further admitted that the plaintiff submitted the documents along with representation.

14.On perusing the evidence of cross-examination of PW-1 he categorically deposed that suit property belongs to defendant and he is the son of K. Veeraswamy Gupta and the TTD allotted granted hawkers license to K. Veeraswamy and PW-1 in his evidence clearly stated that hawkers license was allotted by TTD authorities in the replacement by acquiring the property of his father K. Veeraswamy and he made application before TTD to change and transfer of the said license in his favour and TTD issued a notice under Ex.A-4 to bring legal heir Certificate from competent court.

Hence it clearly shows that plaintiff is son of K. Veeraswamy as per Ex.A-1 to A-6. Further the plaintiff produced Ex.A-5 Family Members Certificate and on perusing Ex.A-5 Family Members Certificate it is observed that plaintiff is the son of K. Veeraswamy.

15.The learned counsel for defendant argued that the family members certificate is only document which the plaintiffs are relying upon to prove their legal heirship to the deceased and the said document is issued by the Tahsildar and the said document is void document as the Tahsildar has no jurisdiction to issue Certificate of Family members of the deceased.

For this the learned counsel for defendant relied upon a decision reported in:

2013(5) ALT -489 in the case between

D. Leelavathi @ Lavanya and others Vs. Director of Mines and Geology,

Hyderabad and others

Wherein it is held that " Legal heirs, issue relating to the legal

heirs of deceased persons has to be decided by

competent court of civil jurisdiction, Mandal

Revenue Officer/Tahsildar has no jurisdiction to

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issue Certificates of family members of the

deceased".

16.The learned counsel for plaintiffs argued that as per Sec. 35 of

Evidence Act explains as follows" any entry in any public or other official

book or Register or Record or electrical record stating a fact, an issue

or relevant fact, and made a public servant in the discharge of his duties

or by any other person in performance of a duty specifically enjoyed by

the law of the country in which such book, Register, or Recorded or an

Electrical record is kept, is itself a relevant fact". Hence the family members certificate issued by the Tahsildar is valid document and the then

Tahsildar discharged his duty is a admissible in evidence as per Sec. 35 of

Indian Evidence Act. Further the learned counsel for plaintiffs relied upon a decision reported in:

1) 2014(3) ALT -473 in the case between

G. Sathyanarayana and others Vs. Government of Andhra Pradesh, represented by its Secretary, Revenue Department and others

Wherein it is held that " In the absence of patta, revenue

records form basis for determining title. A-

Register/Diglot, Leder/Chitta in Andhra Area and

Sethwar, Supplementary Sethwar and settlement

record which provide basis for subsequent entries in

the Village accounts . Before integration of revenue

record, No.1 and No.2 accounts, No.3 account, No.10

account and Register of Holdings in Andhra Area

and Phani Patrika, Chowfasla, Faisal patti and

Khasra pahani in Telangana Area are relevant

village accounts for determination of title.

Between two rival claimants relying upon the entries

in revenue record, the person whose name is

recorded in the basic records such as A-Register and

Record of Holdings and their successors-in-interest

will be considered as the rightful owners.

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Long possession supported by multiple registered

sale transactions give rise to presumption of title.

Such presumption is however rebuttable.

Where thee is a bonafide dispute regarding title of a

person in possession, of the lands, other than public

in possession, of the lands, other than public roads,

streets, bridges or the bed of the sea or the like,

summary proceedings under the 1905 Act cannot be

initiated. In all such cases, the Government which

claims title shall approach the competent Civil

Court for declaration of its title.

2) AIR 1983 Supreme Court -634 in the case between

State of Bihar and others Vs. Sri Radha Krishna Singh and others

Wherein it is held that " the entry must be made by a public

servant in the discharge of his official duties or in

performance of his duties especially ejoined by the

law of the country in which the relevant entry is

kept.

Sections 5 and 35, Admissibility and probative value

of document.

3) AIR 1995 Supreme Court -167 in the case between

Bala Shankar Maha Shankar Bhattjee and others Vs. Charity Commissioner, Gujarath State

Wherein it is held that " Gazette, Official record evidencing public affairs, Admissible in evidence.

17.As per the above judgments, the Hon'ble Supreme Court held that any entry made by the public officer and discharged his duties is admissible in evidence. Hence in the above said facts and circumstances the defendants' cited judgments are not applicable in this case and the said judgments facts are not applicable to the present case and it is settled that

Section prevails over the judgment.

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18.Further the learned counsel for defendant argued that this court has no jurisdiction to entertain the suit. For this the learned counsel for plaintiff relied upon a decision reported in:

AIR 2010 Supreme Court - 818 in the case between

Ramachandra Dagdu Sonavane (dead) by L.Rs and others Vs. Vithu Hira Mahar (dead) by L.Rs & Ors.

Wherein it is held that " Specific Relief Act, Sec. 34 Claim for

hereditary interest of rights in respect of Watan

property based on adoption, jurisdiction of Civil

Court is not excluded, such claim cannot be decided

by Collector, Question regarding adoption involves

declaration as to status/character of a person, can be

decided only by Civil Court.

According to this judgment, the legal character of the person can be decide the Civil Court alone. Claim for hereditary interest of rights in respect of the property based on adoption, jurisdiction of civil court is not excluded.

19. The learned counsel for defendant stated that the said facts is not applicable to this case as to cause of action because of the proceedings of the defendant. In this case also the defendant issued a letter to obtain legal heir certificate and to produce it before them to give license and the same was admitted by DW-1 in his evidence. Hence in this case also there is a cause of action and further as per decision reported in AIR 2010 Supreme

Court - 818, this court has jurisdiction. Further the plaintiff argued that as per Sec.79, 81 and 114(e) of Evidence Act, official documents, presumption, phahani prepared in the course of official business, do presumption existent that the entries therein have made in due performance of official duties they are to receive due weight age evidence :

1996(2) ALT-950 DB in the case between 9

Mohd. Ibrahim and another Vs. The Secretary to the Government of India, Ministry of Defence, New Delhi and others

Wherein it is held that " Indian Evidence Act, 1872 Sec.114(e),

Presumption as to existence of acts, pahanis,

prepared in usual course of official business, entreis

therein must be presumed to have been made in due

performance of official duties.

20.Hence the plaintiffs filed by the documents are issued by the public officer and defendant not adduced any contrary evidence with regard to the said documents and this court held that the documents filed by the plaintiffs are genuine one. The burden heavily lies upon the defendant, hence the judgments relied by the defendant are not applicable to the present case.

21.Further the defendant argued that as per Family Courts Act

Sec.7(1) Expl. (e) the family court is having jurisdiction to decide the legitimacy of any person and this court has no jurisdiction. The Section 7(1)

Explanation (e) reads as follows: "a suit or proceeding for a declaration as to the legitimacy of any person". The learned counsel for defendant relied upon a decision reported in

AIR 2004 Supreme Court - 3500 in the case between

Renubala Moharana and another Vs. Mina Mohanty and others

Wherein it is held that " Family Courts Act, Sec.7 Jurisdiction

of Family Court, to grant declaratory relief,

petitioners seeking declaration that child in question

was child of their deceased son born from extra-

marital relationship of their son with a married

woman, their son was never married to that woman

and the child can never be a legitimate child of their

son and that woman. Such declaratory relief

regarding illegatimacny of child, cannot be granted

by Family Court.

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According to it the grant of declaratory relief of petitioners seeking the child in question was of their deceased son born from extra-marital relationship of their son with a married woman and the facts and circumstances of the above decision not applicable to the above as above said case is between the same family and Sec.7(1) is only applicable to the in between the family members. But the present case is in between plaintiff and defendant ie., TTD hence the Section 7(1)(e) is not applicable to the present case and as per Sec.9 of CPC this court has jurisdiction to entertain the present case and family court has no territorial jurisdiction.

22.Further the learned counsel for defendant argued that the

Hawker license issued by the TTD is not the deceased K. Veeraswamy original licensee and the said license issued only on humanitarian grounds to do business for limited period and not transferable and the defendant never accepted to transfer the license in favour of the plaintiffs as the license is for limited period and not inheritable and so also the plaintiffs are not legal heirs of original licensee and it is decided by the TTD authorities and the plaintiffs are seeking only for declaration to declare them as legal heirs of deceased K.

Veeraswamy. Hence this court cannot decide whether the said license is transferable or inheritable and if the defendant has accepted the said

Hawkers license, it is not a issue to decide by this court. Hence there is no need to discuss about this fact.

23. On perusing Ex.A-1 Allotment Proceedings issued by the defendant in favour of K. Veeraswamy it is clearly mentioned that N. K.

Veeraswamy is allotted hawkers license to do business at Tirumala on humanitarian grounds duly granting him license upto 31.03.1995 and the

Estate Officer, Tirumala communicated to hand over the said shop to him and intimate the date of occupation of the same in the said proceedings.

According to Ex.A-6 residential Certificate issued by the Tahsildar, Tirupati

Urban Mandal clearly shows that plaintiff is residing in 5/36/45, Rajiv

Nagar, Madhava Nagar, Tirupati and also on perusing Ex.A-3 Hawker license of K. Veeraswamy was residing in 715, Balaji Nagar, Tirumala and he was doing bangles business on perusing Ex.A-5 Death Certificate of K.

Veeraswamy who died on 03.09.2005 On perusing Ex.A-4 it clearly is 11 observed notice issued by defendant to plaintiff directing to submit Legal

Heir Certificate issued by competent Court of law within seven days from the date of receipt of notice to examine his request for transfer of license.

Hence the plaintiff filed this suit to obtain legal heir Certificate as it is the competent court to him. Hence on perusing Ex.A-1 to A-6 it clearly shows that plaintiff is the son of K. Veeraswamy.

24.On perusing all the documents and evidences of PWs-1 and 2 it clearly shows that K. Veeraswamy was granted hawker license to do business at Tirumala and the said K. Veeraswamy has been in possession and enjoyment of the said shop till his death and after his death his son ie., the plaintiff approached TTD making an application to transfer the license in his favour and TTD directed the plaintiff to produce legal heir under Ex.4, hence the plaintiff approached this court and on perusing the evidence of

PW-2 he clearly stated that K. Veeraswamy was granted hawker license and the said K. Veeraswamy died on 03.09.2005 leaving behind him the plaintiff as his legal heir and after death of K. Veeraswamy the plaintiff approached to TTD officials to transfer the hawker license in his name, then the TTD directed the plaintiff' to produce legal heir certificate. Hence the evidence of PW-2 is very much corroborating with the evidence of PW-1 and his evidence is very much helpful to the case of the plaintiff.

25.On perusing the evidence of DW-1 he clearly admitted that they allotted hawker license to K. Veeraswamy to do business at Tirumala and the said deceased K. Veeraswamy has been in possession and enjoyment of the said shop till his death. He further admitted that TTD issued license in proceedings in the year 1994 in favour of K. Veeraswamy and the said K.

Veeraswamy. He further admitted that the plaintiff approached the defendant for transfer the license in favour of the plaintiff and the plaintiff made representation before TTD for transfer of license of deceased K.

Veeraswamy in favour of plaintiffs. He further admitted that the plaintiffs submitted the documents along with representation. Hence as per admissions made by DW-1 it clearly shows that the plaintiffs are legal heirs of said K. Veeraswamy and further on perusing Ex.A-1 to A-6 and evidence of PWs-1 and 2 and DW-1 it clearly shows that plaintiffs are legal heirs of 12 said K. Veeraswamy, hence the plaintiffs are entitled for declaration as prayed for. Accordingly this issue is answered in favour of the plaintiff and against the defendants.

26. Issue No.2:-

In the result, the suit is decreed with costs by declaring that the plaintiff is the legal heir of deceased K. Veeraswamy.

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

signed and pronounced by me in the open Court, this the 8th day of May, 2015.

Sd/- Smt. V. Bhavani,

I Additional Junior Civil Judge Tirupati

APPENDIX OF EVIDENCE

Witnesses examined on behalf of the Plaintiffs:

P.W.1K. Subramanyam

P.W2B. Satheesh

Witnesses examined on behalf of the Defendants:

DW-1 : G. Sreedhar

Exhibits marked on behalf of the Plaintiffs:

Ex.A-1 :Proceedings issued by the E.O, TTD, Tiruapti in favour of deceased K. Veeraswamy dt: 08.09.1994

Ex.A-2 : Original copy of Hawker license in the name of deceased K. Veeraswamy

Ex.A-3 : Death Certificate issued by the Registrar of Births and deaths Tirupati Municipality

Ex.A-4 : Notice issued by the defendant to plaintiff dt: 24.06.2014

Ex.A-5 : Family member certificate issued by the Tahsildar, Tirupati Urban Mandal, Tirupati dt: 25.02.2009

Ex.A-6 : Residence Certificate issued by Tahsildar, Tirupati Urban Mandal in the name of the plaintiff.

Exhibits marked on behalf of the defendants:

-NIL-

Id/-VB

I A J C J,

T PT 13