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IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) ::
PUTTUR.
Present: Sri V. GOPALA KRISHNA
Additional Civil Judge (Junior Division),
Puttur.
Monday, the Twenty-fourth (24th) day of February, 2025.
ORIGINAL SUIT NO. 156 /2018.
Between:
P. Saidha Saheb @ Saidhan Saheb, S/o Nainababa Saheb @ P.Abdhul
Khadar Saheb, Muslim, Aged about 60 years, residing at D.No.9/5,
Thatimakula Palle Village, Neallavenganapalle Post, Vedurukuppam
Manal, Chittoor District.
… Plaintiff.
And
1) S. Rafhi, S/o Hushen Saheb, Muslim, Aged about 33 years,
Coolie worker,
2) S. Fathimabi, W/o S. Hammadh Basha, Muslim,
Aged about 42 years, Coolie worker,
3) S. Hasha, W/o Hushen Saheb, Aged about 55 years,
Coolie worker,
All are residing at Thatimakula Palle Village, Nellavengana palle
Post, Vedurukuppam Mandal, Chittoor District.
… Defendants.
This suit is came before me for final hearing on 03.02.2025 in the presence of Sri M. Sanjeevi, Advocate for the Plaintiff and Sri K.Purushotham,
Advocate for the Defendant Nos.1 to 3 and having heard and after perusing the material on record, this Court delivered the following:-
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:: J U D G E M E N T ::
1) This is a suit filed by the plaintiff against the defendant Nos.1 to 3 with a prayer to pass a decree and judgment in favour of the plaintiff and against the defendant Nos.1 to 3; (a) by granting permanent injunction in favour of the plaintiff restraining the defendants, their men, agents, servants, relatives, nominees, friends, etc., from in any way interfering with the plaintiff’s possession and enjoyment over the plaint “B” schedule mentioned properties;
(b) by directing the defendants to pay the costs of this suit to the plaintiff; and
(c) to pass such other order or orders as the Hon’ble Court may deem, fit and proper in the circumstances of the case.
2) The pleadings of the plaintiff in brief are that the plaint schedule mentioned properties are absolute properties of the Plaintiff. The plaintiff purchased plaint ‘A’ schedule mentioned property through the registered sale deed on 23-05-2013 from one D. Peeraiah Naidu, S/o. D. Rama Naidu for a valid consideration of Rs.63,000/- under document No.554/2013. Originally he purchased vacant house site with intent to give to his daughter for construction of the R.C.C house.
3) It is submitted that the plaintiff already purchased house site property on 08-03-1982 from D. Anjaneyulu Naidu, S/o. D. Gangi Naidu through the unregistered sale deed on northern side of plaint ‘A’ schedule mentioned property with measurement of East to West 15 yards (45 feet) and
North to South 17 yards (51 feet). He left 5 feet on the eastern side as vacant place and constructed a R.C.C house in the remain place. His possession was recognized by the Nallavengana Palle Grama Panchayath authority and assessed the house tax. He is paying the house tax regularly. Similarly he applied for Electric service connection to that house. The electric service authority also allotted the electric service House connection to that house in
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the name of plaintiff. Since onwards the plaintiff has been in possession and enjoyment of same with perfect title. He has been residing in the said house along with his children without interruption of any person. The property which was left 5 feet as vacant place on the eastern side, for the purpose of the way to the plaint "A" schedule mentioned property i.e., hereunder item No.2 of the plaint "B" schedule mentioned property (5 X 51 feet). The street is situated 60 feet away to this vacant place on the eastern side. For access of the street the plaintiff has to purchase some property from persons who are owners of the eastern side of this property. Accordingly the plaintiff purchased some portion of the property i.e., East to West 60 feet and North to South 6 feet through the unregistered sale deed on 06-03-2017 from one 1) S. Husen Saheb, S/o. Late
S. Baba Saheb, 2) S. Ahammad Basha, S/o S. Husen Saheb (who is husband of defendant No.2), 3) S. Marambi, W/o. S. Shameer, 4) S. Rafhi,
S/o S. Husen Saheb (who is defendant No.1). Since the date of purchase the plaintiff has been in possession and enjoyment of the same. The plaintiff has no any alternative way to reach to street except this way. This property is Item
No.1 of plaint "B" schedule mentioned property. The plaintiff filed herewith rough sketch of the plaint “A” and “B” schedule mentioned properties for kind perusal of this court. The “B” Schedule property is only source of way to reach the plaint “A” schedule mentioned property.
4) It is further submitted that the plaintiff intended to construct a house in the plaint “A” schedule mentioned property for his daughter. So he brought material for the construction of the R.C.C house in the plaint "A" schedule mentioned property through plaint "B" schedule mentioned properties. Recently the defendants got sore eye upon the plaintiff's family due to well development of plaintiff family. So the defendants, all of suddenly, in the absence of plaintiff they tried to change the physical features of the plaint “B” schedule mentioned properties and to trespass into the same.
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Subsequently the plaintiff warned their illegal acts. But they did not hear words of the plaintiff and on 12-07-2018 at 11-00 AM the defendants objected to use the plaint “B” schedule mentioned property. The defendants got rowdy elements with manpower.
5) It is further submitted that the defendants have no right or interest or title or possession whatsoever in the suit schedule property and they are absolute strangers to the suit schedule property. The defendants are indented to cause the damage to the plaint 'B' schedule mentioned property because they got jealousy upon the plaintiff's family.
6) It is further submitted that on 12-07-2018 at 11-00 A.M the defendants objected to use the plaint ‘B’ schedule mentioned properties by the plaintiff. But the Plaintiff thwarted their attempts with the help of village elders.
The defendants went away with proclamation that they would come with their supporters to occupy the plaint "B" schedule mentioned properties. The defendants are powerful persons having large number of supporters and the
Plaintiff is not a match to them. Unless the defendants are restrained by way of grant of Permanent Injunction from in any way of the interfering with the
Plaintiff's peaceful possession and enjoyment of the suit schedule properties, the plaintiff cannot protect his possession and enjoyment. Under the above said circumstances the Plaintiff files this suit for grant of Permanent Injunction restraining the defendants, their men, agents, servants, relatives, nominees, friends, etc., from in any way interfering with the Plaintiff's peaceful possession and enjoyment of the plaint "B" schedule mentioned property. Hence the suit.
7) The suit summons were served on the Defendant Nos.1 to 3. The defendant Nos.1 to 3 entered appearance before the Court and resisted the suit claim and filed written statement of defendants.
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8) The pleadings of the defendant No.1 in the Written Statement in brief are that this defendant does not admit any of the allegations mentioned in the plaint except save those that are specifically and expressly admitted herein and the plaintiff is put to strict proof of the same.
9) This defendant submitted that the relationship between defendants No.1 to 3 is related to each other. The 1st defendant is son and 2nd defendant is daughter-in-law of 3rd defendant herein. The 3rd defendant is wife of S. Hussain Saheb. The 2nd defendant is wife of S.Hameed Basha who is elder son of 3rd defendant and S. Hussain Saheb.
10) It is submitted that the written statement schedule property is house site consisting of houses of defendants No.1 to 3 and other family members. The plaint 'A' schedule property is situated on south west corners to the written statement schedule. The plaintiff has suppressed facts about physical location of the properties and filed a false suit with twisted version.
The written statement schedule item No.1 was purchased by one S.Baba
Saheb, S/o S.Hussaian Saheb on 19-04-1978 with specific measurements
East to West: 21 yards (63 feet) and North to South: 8 yards (24 feet).
Adjacent to the said property on northern side item No.2 of the written statement schedule property was purchased from Nooru Saheb and his sons under oral sale on 18-12-2013 and they were put in possession and enjoyment with specific boundaries measuring East to West: 63 feet and North to South:
22.06 feet. The entire property was divided between the children of S. Baba
Saheb and the defendants are in absolute possession and enjoyment of the same by constructing houses and also leaving joint lane on northern side.
11) It is further submitted that the plaintiff is having house on the western side of the property of the defendants and he is having access on the
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western side of his property. But the plaintiff in order to have approach to the eastern side road, requested the defendants to provide a right of way to his property for his convenience in the joint lane left by the defendants. The defendants without any hesitation, bonafidely agreed to sell right of way in the joint lane left by them to reach their houses, accordingly they executed an unregistered sale letter in favour of the plaintiff on 25-03-2017. The intention of the defendants is only to provide access to the plaintiff up to his house but not to his vacant site situated on southern side of his house. But for the reasons known to the plaintiff he is claiming the alleged rights in the item No.2 of alleged plaint 'B' schedule property. The said item No.2 of plaint schedule property is absolute property of defendants having left as setback on the western side of their houses, for the purpose of ventilation and to white wash their houses and to reach back yard portions.
12) It is further submitted that the house of the plaintiff is surrounded by compound wall in the entire extent owned by him, the alleged document
No.3 of plaint is manipulated one with regard to measurement east to west as 15 yards to knock away the property of these defendants.
13) It is further submitted that there are no registered documents with regard to house site in the said area. Taking advantage of the same and also illiteracy of the defendants, the plaintiff had thought of mentioning wrong measurements in his documents and claiming property of the defendants. The plaint sketch is not depicting the actual topography of the land on ground and it was drawn to suit his convenience. The learned Advocate/commissioner visited the property also followed the sketch of the plaintiff. The defendants filed objections to commissioner report. There is no item No.2 of plaint 'B' schedule. The construction of the compound wall on eastern side of his house reveals that he has no space left by the plaintiff on the eastern side of his
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house. Further there is no provision for way left by the plaintiff on the eastern side compound wall.
14) It is further submitted that the plaintiff has filed wrong boundaries to his house property and vacant site, which itself shows his malafide intention to grab the property of the defendants. The plaintiff has approached the
Hon'ble court with unclean hands and suppression of material facts and he is
not entitled for any reliefs in the suit. There is no cause of action to file this suit against the defendants and the alleged cause of action is also invented for the purpose of the suit. The plaintiff has no locus standi to file the above suit, on this ground alone the suit is liable to be dismissed. The suit is misconceived one and it is not properly valued and the provision of law under which court fee paid is not correct. This is not a bonafide suit at all. The suit is devoid of merits. Therefore prayed that this Hon'ble court may be pleased to dismiss the suit with costs.
15) The Defendant Nos.2 and 3 are adopting the written statement filed by the 1st Defendant in all material facts and they also pray that the suit may be dismissed with costs.
16) Basing on the rival contentions of both the parties, the following issues are settled for trial.
ISSUES:
1) Whether the plaintiff is in possession and enjoyment of the plaint “A” & “B” schedule properties as on the date of filing of this suit?
2) Whether the plaintiff is entitled for permanent injunction, as prayed for?
3) To What relief?
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17) To substantiate the case, the plaintiff himself examined as P.W.1 and got exhibited Ex.A1 to Ex.A6 documents and PW1 also got examined one
D.Peeraiah Naidu who is third party in the above suit and vendor of the plaint ‘A’ schedule mentioned property of the plaintiff, on behalf of PW1. Ex.A1 is the
Registered sale deed stands in the name of plaintiff, dated 23.05.2013. Ex.A2 is the Unregistered sale deed stands in the name of plaintiff, dated 06.03.2017. Ex.A3 is the Unregistered sale deed stands in the name of plaintiff, dated 08.03.1982. Ex.A4 is the House tax receipts stands in the name of the plaintiff. Ex.A5 is the Bunch of Electricity demand notices stands in the name of plaintiff. Ex.A6 is the Rough Sketch of plaint schedule mentioned properties.
18) On the other hand, the first defendant himself examined as DW1 and DW1 also got examined one S. Baaji Saheb who is third party to the suit as DW2 and DW1 also got examined one D.Babu Naidu who is one of the attesting witness in unregistered sale deed, dt.06.03.2017/Ex.A2 in the above suit as DW3, on his behalf and got exhibited Ex.B1 and Ex.B2 documents on his behalf. Ex.B1 is the Unregistered sale deed, dt.19.4.1978 executed by
I.Munikrishnaiah Chetty and others in favour of S.Baba Saheb who is grandfather of Defendant No.1 for the plaint ‘B’ schedule property and other property. Ex.B2 is the Rough Sketch for the item Nos.1 and 2 of defendants property.
19) This Court got examined one N.Nadhamuni who is Advocate
Commissioner in this case and got exhibited Ex.C1 to Ex.C7 documents.
Ex.C1 is the Warrant of Commission. Ex.C2 is the Notice issued by Advocate
Commissioner to the petitioner’s counsel. Ex.C3 is the Notice issued by the
Advocate Commissioner to the petitioner and respondents. Ex.C4 is the
Rough sketch. Ex.C5 is the Work memos of petitioner. Ex.C6 is the
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Requisition of the respondents. Ex.C7 is the photos of the warrant schedule property.
20) Heard the arguments on both sides. Perused the material on record. The learned counsels for plaintiff and defendants filed written arguments.
21) ISSUE NOs.1 & 2:-
1) Whether the plaintiff is in possession and enjoyment of the plaint “A” & “B” schedule properties as on the date of filing of this suit?
2) Whether the plaintiff is entitled for permanent injunction, as prayed for?
22) In order to grant the relief of permanent injunction, the plaintiff has to establish his possession and enjoyment over the plaint schedule property as on the date of filing of the suit, invasion or threat of invasion over his right and enjoyment of the suit schedule property by the defendants.
23) The Plaintiff in support of his case examined himself as P.W.1.
The Plaintiff filed his chief-examination affidavit by reiterating the averments in the plaint and got exhibited Ex.A1 to Ex.A6 documents. Ex.A1 is the
Registered sale deed stands in the name of plaintiff, dated 23.05.2013. Ex.A2 is the Unregistered sale deed stands in the name of plaintiff, dated 06.03.2017. Ex.A3 is the Unregistered sale deed stands in the name of plaintiff, dated 08.03.1982. Ex.A4 is the House tax receipts stands in the name of the plaintiff. Ex.A5 is the Bunch of Electricity demand notices stands in the name of plaintiff. Ex.A6 is the Rough Sketch of plaint schedule mentioned properties.
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24) In the cross-examination, PW1 deposed that the defendant Nos.1 to 3 are his relatives. The defendant No.1 is his nephew.
The defendant No.2 is the sister-in-law of defendant No.1 and the defendant
No.3 is the cousin sister of first defendant. He is an illiterate person. The house of defendants is situated on the eastern side of his house in Pathagunta village of Vedurukuppam Mandal. He shown only the vacant site in the suit schedule property. He filed a rough sketch along with the suit. He has purchased the house in a site under EX.A3 which is unregistered sale deed stands on his name. He adds that he paid stamp duty and penalty to EX.A3.
After purchasing of site under EX.A3 he raised thatched hut and residing in the said hut. He constructed a RCC building in the site purchased under EX.A3 about 20 years back by removing the thatched hut. He is also constructing a compound wall on four corners. He got way to reach the road on the western side of his house. PW1 denied the suggestion that he constructed a compound wall on entire site covered under EX.A3. He adds that he has constructed compound wall by leaving 5 feet of land on the eastern side of the house. He has purchased vacant site on the southern side about five years back of his house which was shown as Plaint ‘A’ schedule property in his rough sketch and the same was given to his daughter by way of registered gift deed.
25) PW1 in his cross-examination further deposed that he filed the
EX.A6 rough sketch of the Plaint schedule property along with plaint. He gave instructions to the Counsel for preparing the EX.A6 rough sketch. The item
No.1 of the rough sketch is a lane to reach the plaintiff and defendants to the eastern side street. One Anarbi and Piyaz are having no right to reach the eastern side road through item No.1 lane in ‘B’ schedule. There is a way on the western side of his house to reach his house. The western side way is reached to the main road which leads from Penumur to Pachikapalam road.
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There is a cement road on the western side of his house in between his house and the house of Sattar Saheb and the cement road was laid by Masjid
Committee. As the western side road belongs to the Masjid Committee in order to prevent the future litigation he has purchased the right of way through item No.1 lane in ‘B’ schedule to reach eastern side road after construction of compound wall of his house as per EX.A2 unregistered sale deed. Till today he did not arrange any gate to the compound wall to reach the eastern side road through item No.1 lane in ‘B’ schedule. PW1 has purchased the item
No.1 lane in ‘B’ schedule under EX.A2 from the defendants. PW1 denied the suggestion that the defendants did not gave any exclusive right to him through item No.1 lane and the item No.1 lane in ‘B’ schedule is only a joint lane in between him and defendants. He filed this suit for permanent injunction to claim the exclusive right over the item No.1 lane of ‘B’ schedule. He can understand the Telugu language but he does not know reading of Telugu language. He was present at the time of execution of EX.A2 unregistered sale deed. He again says that he was not present at the time of execution of
EX.A2. The scribe of EX.A2 was read over the contents of the EXA2 unregistered sale deed. There is a clear recital regarding joint right over the item No.1 lane of ‘B’ schedule as per EXA2 unregistered sale deed. He purchased the right for ingress and engress to reach his house from the eastern side road and the measurements of the lane was mentioned as East to West – 60 feet, North to South – 6 feet. His house is situated on the western side of the item No.1 lane of ‘B’ Schedule. He did not shown the item No.2 of the ‘B’ schedule property as western side boundary of item No.1 of ‘B’ schedule as per EX.A2 unregistered sale deed. He has purchased house site from one Anjaneyulu Naidu as per EX.A3 which is an unregistered sale deed in 1982 and he constructed a RCC building in the said site. There is no recital in EX.A3 that how the Anjaneyulu Naidu is acquired the property shown in
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EX.A3. At present at the time of execution of EX.A3 unregistered sale deed he does not know which document is used by Anjaneyulu Naidu for giving boundaries mentioned in EX.A3 unregistered sale deed. He did not shown the vacant site of Bejawada Purushotham Naidu on the western side of his house and he did not shown the house site of Shaik Baba Saheb, Shaik Patan
Chandu Saheb on the eastern side of his house in EX.A2. He adds that Patan
Chandu Saheb sold away his site to the defendants herein as such he shown the name of the defendants. He did not mention all the boundary matters as per EX.A3 sale deed in his plaint and EXA6 rough sketch. He is in possession and enjoyment over the site purchased from Anjaneyulu Naidu under EX.A3 sale deed. At first he build a thatched house and later he constructed a RCC building and compound wall around the RCC building in the site purchased from Anjaneyulu Naidu under EX.A3. He constructed the bathrooms and
Septic tank regarding his house in the plaint ‘A’ Schedule site. He has purchased the plaint ‘A’ schedule site in Sy.No.76/15 for construction of his house. He arranged a gateway to go to plaint ‘A’ schedule vacant site from his house. The defendants have got three houses on the southern side of the item
No.1 of the ‘B’ schedule land and the defendants have to reach their houses through the item No.1 of the ‘B’ schedule lane only from the eastern side road.
There is a 3 feet lane in between his house and house of Defendant No.1 as per rough sketch. PW1 denied the suggestion that there is a vacant site on the southern side of the houses of Defendant Nos.1 to 3 and they reached to the southern site through 3 feet lane in between his house and house of
Defendant No.1. The Defendant No.1 has to arrange painting to the house of the Defendant No.1 and his house in the lane. PW1 denied the suggestion that the defendants left the 3 feet lane in between his house and house of
Defendant No.1 in order to go to their southern side site and to make painting to their house and for ventilation purpose. The Defendant No.1 constructed a
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house in his site 15 years back after he constructed his RCC building by arranging windows to the 3 feet lane for ventilation. PW1 denied the suggestion that he did not take any action against the Defendant No.1 when he arranged the windows in the lane. He gone through the contents of the written statement filed by defendants. The defendants purchased the house site and item No.1 of the ‘B’ schedule lane from one Nurul Saheb and others measuring about East to West – 60 feet and North to South – 22.6 feet on 18-12-2013. The defendants have purchased some portion of house site on the northern side of B.Peraiah’s house from one Munikrishnaiah Chetty on 19-4-1978 measuring about East to West – 21 Sq.Yards, North to South – 8 Sq.Yards in which the defendants constructed their houses in 40 site from
North to South by leaving 6 feet as joint lane in item No.1 of ‘B’ Schedule. At the time of purchasing of house sites there is no arrangement of measurements taken by the surveyor. PW1 denied the suggestion that he is in possession and enjoyment and constructed a house in the site purchased from one Anjaneyulu Naidu under EXA3 and at present he is claiming the site of Defendant No.1 which was given to reach the backside of the houses of the defendants which is exclusively belongs to the defendants and the same is shown in item No.2 of ‘B’ schedule and he has no right over the item No.2 of ‘B’ schedule. PW1 denied the suggestion that the measurements mentioned in
EX.A3 is not correct and there is no land physically as mentioned in the measurements in EX.A3. PW1 denied the suggestion that he did not approach the court with clean hands and he filed this suit with false measurements and his suit is liable to be dismissed and he is not entitled to claim any right over the item No.2 of the ‘B’ schedule property as per EXA6 rough sketch.
26) PW.2 who is third party in the above suit and vendor of the plaint ‘A’ schedule filed his chief-examination affidavit and stated the same facts as stated by PW1.
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27) In the cross-examination, PW2 deposed that he knows the particulars of the plaint schedule property. He knows the particulars of the ‘A’ schedule property as well as ‘B’ schedule property in this suit. The plaintiff purchased the plaint ‘A’ schedule property which is a vacant site from him in the year 2013. In the Northern side of ‘A’ schedule vacant site the plaintiff has got residential house covered with compound wall as on the date of EX.A1 sale deed. There is a western side way to the house of plaintiff. He knows the particulars of the house property of plaintiff and from whom he purchased the site, etc. He does not know whether the plaintiff purchased the house site from his junior paternal uncle by way of Registered sale deed or not. He knows the measurements of the house constructed by the plaintiff as himself and his junior paternal uncle are partitioned the said site by way of partition deed. He studied up to 10th class. He can read and write Telugu language. There is no clear recital in EXA3/Unregistered sale deed from whom the vendor of the plaintiff acquired the said land. There is no registered link documents to his junior paternal uncle who is vendor of the plaintiff with regard to property mentioned in EX.A3 unregistered sale deed. He has got share in the southern side of the property mentioned in the EX.A3 unregistered sale deed. There is a way on the western side of the ‘A’ schedule property sold by him to the plaintiff. There is a cement road on the western side of the house of plaintiff which is exclusively laid by the Masjid Committee. The house of defendants is situated on the western side of the house of plaintiff. There is a street on the eastern side of the house of defendants. There is a 6 feet way on the northern side of the house of defendants to the opposite of their house in order to reach eastern side street. He adds that the defendants sold away the 6 feet way (Sandhu dari) to the plaintiff herein which is the item No.1 in ‘B’ schedule property. The defendants used to reach their house from the eastern side street through the northern side 6 feet way at present. As on the date of the
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filing of the suit there is a house of defendants in item No.1 of the ‘B’ schedule.
He never gone through the alleged sale deed executed by the defendants with regard to the 6 feet way in favour of the plaintiff and he never seen the said sale deed. He does not know the recitals of the EX.A2 with regard to joint over the item No.1 lane of the ‘B’ schedule property. In EX.A2 the western boundary is shown as the house of the plaintiff. As per EX.A1 sale deed the northern side boundary is shown as the vacant site of the plaintiff. As per the schedule of the EX.A1 sale deed the northern lane is shown as the vacant site of the plaintiff, but not shown as item No.2 of the ‘B’ schedule property. PW2 denied the suggestion that there is no lane in item No.2 of ‘B’ schedule property as per EX.A1 sale deed which was sold by him to the plaintiff and he is deposing false to help the plaintiff. The plaintiff filed this suit on the allegation that item No.1 of ‘B’ schedule property was tried to encroach by the defendants. Within one year of the date of EX.A1 sale deed the plaintiff informed that the defendants tried to encroach the item No.1 of the ‘B’ schedule property as per EXA6/rough sketch. The plaintiff held mediation in the presence of elders in which himself and plaintiff are attended the said mediation. The plaintiff arranged the pipeline and plumbing work, etc., on the site purchased by the plaintiff from him. PW2 denied the suggestion that the plaintiff purchased item No.1 of ‘B’ schedule property jointly with the defendants as per EX.A6/rough sketch by way of EX.A2. If the item No.1 of ‘B’ schedule property was closed there is no way to reach the house of defendants from the eastern side road. PW2 denied the suggestion that he is deposing false to help the plaintiff who is his close friend.
28) On the other hand the first defendant was examined as DW1 and
DW.1 filed his chief-examination affidavit by reiterating the averments of the written statement and got exhibited Ex.B1 and Ex.B2 documents. Ex.B1 is the
Unregistered sale deed, dt.19.4.1978 executed by I.Munikrishnaiah Chetty and
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others in favour of S.Baba Saheb who is grandfather of Defendant No.1 for the plaint ‘B’ schedule property and other property. Ex.B2 is the Rough Sketch for the item Nos.1 and 2 of defendants property.
29) In the cross-examination, DW1 deposed that the plaintiff filed this suit against him for permanent injunction not to interfere into the plaint schedule properties. The plaintiff purchased his house property from one
Anjaneyulu Naidu on 08-03-1982. The plaintiff purchased the house property with specific measurements i.e., East to West 45 feets, North to South 51 feets and constructed Dhaba house in the said site. He does not know the measurements of the house constructed by the plaintiff in the said site. He does not know whether the plaintiff constructed a house measuring about 39 feet from East to West. The Court Commissioner visited the plaint schedule property and noted the boundaries of the house of PW.1 and plaint schedule property including pathway mentioned in ‘B’ schedule in his report. At the time of visit of Advocate Commissioner, his mother (D3/S.Asha) was present. DW1 denied the suggestion that the plaintiff constructed his house by leaving 5 feet vacant site on the eastern side of his house. DW1 admitted that he sold away the 6 x 60 feet vacant site on the eastern side of house of plaintiff by taking consideration of Rs.25,000/-. He again says that he received consideration of
Rs.25,000/- by sold away the pathway (Sandu daari) and executed a document by him and his three other brothers. The EX.A2, Dt.06-03-2017 was read over by scribe and after admitting the contents they put their signatures in
EX.A2. He studied up to 7th class and he can read and write Telugu language.
The counsel for the plaintiff read over the contents of EX.A2 sale deed and he clearly admitted the recitals of EX.A2 including East – West measurements which was having right by their family was sold away to the plaintiff. One
Anarbee house site is situated in the northern side boundary of the exhibit ‘B’ schedule sandhu daari mentioned in EX.A2. There is a public street on the
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eastern side of their family houses i.e., four houses. There is a vacant site of one Peer Naidu on the southern side of their house measuring about 6 x 16 feet from east to west. The said Peer Naidu is examined as PW.2 and he was present before this Court. The plaintiff is also purchased one site from PW.2 on 23-5-2013 bounded by East - Vacant site of Peer Naidu/PW2, North –
House of plaintiff, West – Land of one Govindaswamy Naidu and others, South - Land of one Govindaswamy Naidu. DW1 denied the suggestion that one can reach to Plaint ‘B’ Schedule property through the eastern side vacant site left by the plaintiff to his house only and except the said way there is no other way to reach the vacant site purchased by the plaintiff from Peer Naidu(PW2).
DW1 denied the suggestion that on the western side of the house of plaintiff there is a street for some extent as per EX.B2 rough sketch filed by him. He again says after gone through EX.B2 rough sketch and admitted that there is a street for some extent on the western side of house of PW.1.
30) DW1 further admitted in his cross-examination that there is a 4 feet gap between the houses of DW1 and PW.1 since the date of construction of the house by plaintiff. He does not know whether the plaintiff used to pay the house tax to his house regularly. He does not know generally no one given vacant site on the western side of the house and given the vacant site on the eastern side of the house. The disputes arose between
DW1 and plaintiff when he claimed right over the site sold away to the plaintiff under EX.A2. He has purchased the vacant site from one Nooru Saheb and he did not obtain the mother document/Link document from the said Nooru
Saheb. “DW1 clearly admitted that he sold away the plaint ‘B’ schedule property to the plaintiff after measuring the same and executed EX.A2 and since then plaintiff is in possession and enjoyment over the said pathway/sandhu dari”. DW1 denied the suggestion that the plaintiff used to come and go to the plaint ‘B’ schedule property to reach the plaint ‘A’ schedule
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property since the date of EX.A2. There is a house wall on the southern side of the house of PW.1. DW1 denied the suggestion that he has no right over the plaint ‘B’ schedule property sold by him under EX.A1 and he has got public way on the eastern side of his house. He has no objection to go to the plaintiff through the site sold by him under EX.A2. There is a compound wall on the eastern side of the house of plaintiff. DW1 denied the suggestion that as he sold away the ‘B’ Schedule property under EX.A2, he has no right to create objection by using ‘B’ schedule property to reach ‘A’ schedule property and he is deposing false.
31) DW.2 filed his chief-examination affidavit and stated the facts as similar to the facts stated by DW1.
32) In the cross-examination, DW2 deposed that this suit was filed by plaintiff claiming ownership of the suit ‘B’ schedule property. The plaintiff constructed a house in the suit schedule property long back. DW2 denied the suggestion that the plaintiff constructed his house by leaving 5 feet vacant site on the eastern side of his house. He cannot say the boundaries and measurements of the house of plaintiff on four sides. The Plaintiff filed this suit against the defendants No.1 to 3. The Defendant No.1 is his maternal uncle.
There is a gap of 3 feet of site in between the houses of plaintiff and
Defendant No.1. DW2 denied the suggestion that on 06-03-2017 the
Defendant No.1 sold away some land to the plaintiff under EX.A2. The plaintiff purchased one house plot under EX.A1 from one Peer Naidu, Dt.25-03-2013 on the southern side of his house which was bounded by East - Vacant site of
Peer Naidu/PW.2, North – House of plaintiff, West – Land of Govindaswamy
Naidu and others, South – Land of Govindaswamy Naidu. He cannot say the measurements of the house site purchased by the plaintiff under EX.A1. There is a pathway on the western side of the house of plaintiff to reach his house.
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There is a street on the eastern side of the house of Defendant No.1 and the
Defendant No.1 has got pathway on the eastern side of his house to reach the public road. The Defendant No.1 has purchased his house site from one
Anjaneyulu Naidu by way of registered sale deed with specific measurements of East to West – 60 feet, North to South – 40 feet and odd.
33) DW2 clearly admitted that the plaintiff purchased the sandhu dari measuring about length – 60 feet and width – 6 feet for pathway from the defendants to reach his house. He does not know whether the Advocate
Commissioner visited the suit schedule property and measured the site or not.
He does not know in which side the alleged sandhu dari was situated to the plaint ‘A’ schedule property. The four houses of defendants are faced towards northern side. DW2 denied the suggestion that the defendants constructed their houses without leaving any site on their western side. His house is situated at a distance of 200 feet from the house of Defendant No.1. The plaintiff purchased the house site from Anjaneyulu Naidu under EX.A3 and constructed a house. DW2 denied the suggestion that the house of Anjaneyulu
Naidu is situated on the northern side of house of Plaintiff. The Anjaneyulu
Naidu, Peer Naidu are cousin brothers. DW2 further admitted that the plaintiff has got only one sandhu dari which was purchased by him measuring about 60x6 on the eastern side of his house to reach plaint ‘A’ schedule property from the eastern side road. He knows all the issues in his village as he is the elder of his village. DW2 denied the suggestion that he does not know anything regarding this case and he is deposing false to help the Defendant
No.1 who is his maternal uncle.
34) DW.3 who is one of the attesting witnesses in unregistered sale deed, dated 06.03.2017/Ex.A2, filed his chief-examination affidavit and stated the facts as similar to the facts stated by DW1.
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35) In the cross-examination, DW3 deposed that he studied up to
Secondary School Certificate equal to 10th class. He knows the facts of the suit. The plaintiff filed this suit against the defendants for permanent injunction over the sandhu dari (pathway). The plaintiff constructed his house in the year 1982 in the suit schedule land. He does not know the measurements of the site purchased by the plaintiff. The plaintiff constructed house in his entire site.
In the year 2013 the plaintiff purchased the ‘A’ schedule property from one
Peer Naidu who is his elder brother. On 06-03-2017 the plaintiff purchased the pathway measuring about 6 x 60 feet site from the defendants. He adds that the plaintiff and defendants have joint right over the said pathway. Himself and one Baaji Saheb/DW2 are attestors of the said sale deed, Dt.06-03-2017. The learned counsel for plaintiff read over the contents of sale deed, Dt.06-03-2017 to him and he denied the contents of EX.A2 document. DW3 denied the suggestion that the defendants sold away the entire site from east to west as much they have got the site measuring about 6 x 60 feet. One Imam Saheb has got house and site on the northern side of the house constructed by the plaintiff. To the further northern side of the house of Imam Saheb, his brother sold away the said site to one Babini Saheb. DW3 denied the suggestion that the plaintiff has got right over the vacant site to reach his southern side house from northern side. The plaintiff has got way to reach the road on the western side of his house. There is a gap of 4 feet site between the houses of plaintiff and the defendant No.1. The house of Defendants was facing towards north.
He was present at the time of visiting by the Advocate Commissioner. DW3 denied the suggestion that the plaint ‘B’ schedule property is purchased from the defendant measuring about 6 x 60 feet in order to go to plaint ‘A’ schedule property. There is no direct way to reach the plaint ‘A’ schedule property purchased from his brother Peer Naidu. He can say the boundaries of plaint ‘A’ schedule property bounded by North – House of plaintiff, South – Land of one
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Govindaswamy Naidu, West – Land of one Govindaswamy Naidu, East –
House of one Nuru Saheb. DW3 denied the suggestion that the plaintiff leaving 5 feet site in order to reach plaint ‘A’ schedule property at the time of constructing of his house. He has no disputes with his elder brother Peer
Naidu. DW3 denied the suggestion that he does not know anything regarding this case and he is deposing false to help the defendants.
36) This Court examined the Advocate Commissioner as CW.1 and he deposed in his evidence stating that he is a practicing advocate at Puttur
Bar Association since 2017. On 19-7-2018 he was appointed as an Advocate
Commissioner in IA.793/2018 in OS.No.156/2018 with a direction to visit the plaint ‘A’ and ‘B’ schedule properties to note down physical features, receive work memos if any and filed a report along with rough sketch. Accordingly, he issued prior notices to the petitioner counsel and the respondents and he visited the suit schedule property at about 8.30 am on 27-7-2018. At the time of his visit the petitioner and his counsel and respondents are present and both parties gave work memos. He identified the plaint schedule property with the help of petitioner and respondents and noted the physical features and boundaries of the plaint schedule property and the same was mentioned in his rough sketch. He noted the observations at the time of his visit and noted the measurements East to West – 43 feet, North to South – 29 feet and also noted the boundaries in his report. He further submitted that the warrant ‘B’ schedule properties are two items i.e., item No.1 is East to West – 60 feet and North to
South – 6 feet lane and the same was mentioned in his rough sketch. There are bricks, sand, mud were deposited in the vacant place. He noted the boundaries and measurements of the said ‘B’ schedule property in his report.
The item No.2 of the warrant ‘B’ schedule property is East to West 5 feet,
North to South – 55 feet lane. He has shown the item No.2 also in his rough sketch and noted the measurements and boundaries in his report. The
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defendants gave requisition to measure their house and note down the physical features and the same was noted in his report that since the defendants’ house is in existence and it is beyond the scope of warrant and he is unable to note the same, he took the photographs regarding the physical features of the petition schedule property. Accordingly, he filed his report.
37) In the cross-examination by the counsel for the plaintiff, CW1 deposed that he thoroughly visited the petition schedule property as per the directions of the warrant. Except the way mentioned in his report there are no other way to reach the plaint ‘A’ schedule property. The house of plaintiff is situated on the northern side of the plaint ‘A’ schedule property. The plaintiff house is measuring about East to West – 39 feet. The alleged way was closed at the house of plaintiff. At the time of his visit the plaintiff and defendants were present.
38) In the cross-examination by the counsel for the defendants, CW1 deposed that this Hon’ble Court appointed him in IA.793/2018 which is an
Ex-parte Commissioner. As per the Commissioner Warrant there is no direction to measure the petition schedule properties. The petitioner did not ask about the measurements to his work memo also. He adds that he noted the measurements as per the oral request of the petitioner. The respondents gave requisition to measure their land as per their sale deeds. He adds that the defendants are not produced their sale deeds and he did not measure the same. He mentioned in his report that he is unable to measure the defendants’ property as it is beyond the scope of warrant. The respondents gave requisition seeking time to engage their counsel. Then he informed to the respondents if their counsel file a separate petition he will revisit the same. He noted the measurements in Item No.1 and 2 of ‘B’ schedule and the way to go to ‘A’ schedule according to the physical features available at the time of his
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visit. The defendants also reached to their house through item No.1 of ‘B’ schedule property measuring about 6x60 feet way. CW1 (Commissioner) denied the suggestion that the defendants also reached to their backyard of their house through the item No.2 of the ‘B’ schedule property. There is no wall in between the plaintiff’s house and on its southern side ‘A’ schedule vacant site. Two septic tanks and one water tank in ‘A’ schedule property which are belongs to the plaintiff. There is a lane on the western side of the plaintiff’s house in item No.2 of ‘B’ schedule. CW1 denied the suggestion that there is a compound wall on the eastern side of the plaintiff’s house. There is no way to go outside from the eastern side of the plaintiff’s house. CW1 denied the suggestion that he prepared the rough sketch as per the direction of plaintiff and he refused to measure the house of defendants intentionally and file a report to help the plaintiff by mentioning the way and he execute the warrant beyond scope and he is deposing false.
39) The learned counsel for the plaintiff filed written arguments stated the pleadings of the plaintiff and pleadings of the defendants and further stated that the plaintiff himself was examined as PW1 and deposed that he left 5 feet as vacant place on the eastern side of his house for the purpose of the way to the plaint ‘A’ schedule mentioned property i.e., item No.2 of the plaint ‘B’ schedule mentioned property (5 x 51 feet). PW2 also clearly deposed that the plaintiff left 5 feet as vacant place on the eastern side of his house for the purpose of the way to the plaint ‘A’ schedule mentioned property. The
Advocate Commissioner visited the locality and he measured the house of the plaintiff, suit schedule property and filed report, as his report shows that the house of plaintiff is situated within the 39 feet of East to West only, so remain 6 feet is left for the way on the eastern side of his house for the purpose of the way to the plaint ‘A’ schedule mentioned property because the plaintiff purchased as per the Ex.A3 East to West 15 yards, it means 45 feet. So, it is
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clear that the plaintiff constructed his house within 39 to 40 feet only. He left 5 feet for way of the ‘A’ schedule property. So it is clear that item No.2 of the plaint ‘B’ schedule mentioned property has been in possession and enjoyment of the plaintiff.
40) The learned counsel for the plaintiff further stated in his written arguments that the plaintiff purchased the item No.1 of plaint ‘B’ schedule mentioned property on 06.03.2017 from one 1) S.Husen Saheb, S/o Late
S.Baba Saheb, 2) S. Ahammad Basha, S/o S. Husen Saheb, (who is husband of defendant No.2), 3) S. Marambi, W/o S. Shameer, 4) S. Rafhi, S/o S.Husen
Saheb, (who is defendant No.1) i.e., the East to West 60 feet and North to
South 6 feet through the unregistered sale deed (Ex.A2). The said sale deed is clearly indicated that East to West 60 feet and North to South 6 feet sold to the plaintiff with absolute right, but defendants pleads that they sold as use the joint way, but it is wrong, as per the said Ex.A2 item No.1 of plaint ‘B’ schedule mentioned property was sold to the plaintiff for valid consideration with an absolute rights. It means the defendants have no right in the said way.
41) The learned counsel for the plaintiff further stated in his written arguments that the Advocate Commissioner also clearly narrated that the plaintiff has been using the way of plaint ‘B’ schedule mentioned property to reach the plaint ‘A’ schedule mentioned property i.e., except the said lane i.e., plaint ‘B’ schedule mentioned property there is no any way to reach plaint ‘A’ schedule property in Para 7 of his report. So, it is clear that the plaint ‘B’ schedule mentioned property has been in possession and enjoyment of the plaintiff.
42) The learned counsel for the plaintiff further stated in his written arguments that the defendants pleaded that they have East to West 63 feet,
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but their family members sold to the plaintiff for way purpose under Ex.A2 East to West 60 feet only, so it is clear that they have 60 feet only, in his cross examination also DW1 admitted that “it is true to suggest that he sold away the 6x60 feet vacant site on the eastern side of the house of the plaintiff by taking consideration of Rs.25,000/-. He again says that he received consideration of
Rs.25,000/- by sold away the pathway (Sandu Dhari) and executed a document by him and his three other brothers. It is true that Ex.A2, dated 06.03.2017 was read over by scribe and after admitting the contents they put their signatures in Ex.A2”. DW1 further admitted that “It is true that he sold away the plaint ‘B’ schedule property to the plaintiff after measuring the same and executed Ex.A2 and since then the plaintiff is in possession and enjoyment over the said pathway/sandu Dhari”. Similarly DW1 admitted that “It is true that the disputes arose between him and plaintiff when he claimed right over the site sold away to the plaintiff under Ex.A2”. In his cross-examination also DW2 admitted that “It is true that the plaintiff purchased the sandhu Dhari measuring about length 60 feet and width 6 feet for pathway from the defendants to reach his house”. DW2 further admitted that “It is true that the plaintiff has got only one Sandhu Dhari which was purchased by him measuring about 60 x 6 on the eastern side his house to reach plaint ‘A’ schedule mentioned property from the eastern side road”.
43) The learned counsel for the plaintiff further stated in his written arguments that the DW1, DW2, DW3 clearly admitted in their cross examination that the plaint ‘A’ schedule mentioned property has no direct street access. The sites are situated on east, west and south and plaintiff house is situated on northern side with wall. So there is no access of direct way to reach the street from the plaint ‘A’ schedule mentioned property. The only way is plaint ‘B’ schedule property i.e., pathway/sandhu Dhari is only way to reach the plaint ‘A’ schedule mentioned property, those circumstances
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categorically shows that the defendants have taken vague pleas, which have no basis and they failed to prove the same. In these circumstances, all the facts as revealed, categorically proved the plaintiff as pleaded by plaintiff, all the preponderance of probabilities lies towards the case of plaintiff. In addition to that fact commissioner evidence also clear that the plaintiff did not construct the house in the total of his site from east to west. He left some property for the passage or pathway on eastern side of his house for the purpose of the plaint ‘A’ schedule property.
44) In support of the contentions of the plaintiff’s counsel, he relied upon the decision of Hon’ble Apex Court in between M. Siddiq (D) thr Lrs Vs.
Mahant Suresh Das and others reported in 2019(6) ALT (SC) 383 (L.B.) wherein the Hon’ble Apex Court held that “HEAD NOTE EVIDENCE ACT, 1872, Section 110 Burden of proof of ownership Section 110 deals with the burden of proof Where the provision applies, the burden of proving that another person who is in possession is not the owner lies on the person who affirms against the ownership of that other person Section 110 is based on the principle that TITLE FOLLOWS POSSESSION Section 110 is based on the principle that possession in and of itself may arise a presumption. It is also well settled that the presumption cannot be arise when the facts are known Unless the shown to be in possession requirement is fulfilled, the presumption would not arise and there would be no question of placing the burden of establishing that the plaintiff in Suit 4 are not the owners on the contesting Hindu parties”.
Thus, all the above circumstances categorically proved that the documents filed by the plaintiff under Ex.A1 to Ex.A6 are helpful to prove the case of the plaintiff and the document which are filed by the defendants are not helpful to this case and prayed the Hon’ble Court may be pleased to decree the suit with costs.
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45) On the other hand, the learned counsel for the defendants filed written arguments stated the pleadings of the plaintiff and pleadings of the defendants and further stated that the plaintiff is not established his case by filing necessary documents or evidence. But the defendants clearly established their case by way of cross examination of PW1 and PW2. At the time of cross examination PW2 clearly admitted that “It is true item No.1 of the sketch is the lane to reach the plaintiff and defendants to the eastern side.
There is a way on the western side of house of his house to reach his house.
The western side way to reach main road which leads from Penumuru and
Pachikalam road. There is a cement road on the western side of his house in between his house and the house of Sattar Sahib and cement road was laid by the Maseed Committee and also admitting that the Maseed Committee to prevent future litigation to western road. There is a clear recital with regard to joint right over the item No.1 lane of ‘B’ schedule as per Ex.A2/Unregistered sale deed. He purchased the right for ingress and egress to reach his house from eastern side and measurements of lane was mentioned as east to west 60 feet; north to south 6 feet. The defendants got 3 houses on southern side of 1st item of ‘B’ schedule lane and the defendants have to reach their house through item No.1 of ‘B’ schedule lane only from the eastern side road. The defendant No.1 has to arrange painting to the house of defendant No.1 and his house in the lane; The defendant No.1 constructed a house in his site 15 years back after he constructed his RCC building by arranging windows to the 3 feet lane for ventilation. The defendant purchased the house site item No.1 of ‘B’ schedule lane from one Nooru Sahib and others measuring about east to west 60 feet; north to south 22.6 feet on 18.12.2013”.
46) The learned counsel for the defendants further stated that at the time of evidence of PW2 who is no other than vendor of Ex.A1 clearly admitted that “It is true that if item No.1 of ‘B’ schedule property was closed, there is no
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way to reach the house of defendants from eastern side road and also admitted that there is a way on western side of ‘A’ schedule property sold by him to the plaintiff. There is a 6 feet way on northern side of house of defendants to the opposite of their house in order to reach the eastern side street. The defendants used to reach their houses from the eastern side street through northern side 6 feet way at present”.
47) The learned counsel for the defendants further stated that the plaintiff is not elicited his case and simply put suggestions contrary to the recital of document that he is claiming exclusive right over the ‘B’ schedule property i.e., Ex.A2 and also defendants examined the attestors of Ex.A2 who are DW2 and DW3 clearly stating that at the time of execution of Ex.A2 for the purpose of lane to the plaintiff and defendants and also Ex.A2 clearly recites that both are using ‘B’ schedule property for ingress, egress for their houses.
48) The learned counsel for the defendants further stated that the plaintiff appointed court commissioner and commissioner visited the suit schedule property and also court commissioner examined as CW1 and marked Ex.C1 to Ex.C7 and defendants counsel cross examined the commissioner and elicited. At the time of cross examination, Advocate- commissioner clearly admitted that there is no wall in between plaintiff house and on its southern side of ‘A’ schedule vacant site and also admitted that the defendants also reached their house through item No.1/B-schedule property measuring about 6 x 60 feet way. So, as per the evidence of PW1 and PW2 at the time of cross examination clearly admitted that B-schedule property is way for ingress and egress of plaintiff and defendants and also admitted that there is recital of Ex.A2 that for the purpose of enjoying the said property for ingress, egress of executants and purchaser i.e., plaintiff and defendants.
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49) It is settled principle of law the document may be taken into consideration basing on contents of document not nomenclature of document.
As per Ex.A.2 the contention of the document that both are enjoying said
Ex.A.2 schedule property i.e., B-schedule property for ingress and egress of both of them and the same was admitting by P.W.1 at the time of cross examination of defendants and also P.W.2 admitting the same. The court commissioner clearly stating that there is no other way. The Defendants using the B-schedule property for ingress and egress to reach their houses and also the Commissioner clearly stating that there is no wall in between plaintiff's house and on its southern side A-schedule vacant site. That means remaining part of B-schedule property belongs to defendants to leave the said property for free air and ventilation and also painting the wall and the same admitting by
P.W.1. That means the plaintiff has no right entire B-schedule property, only having part of B-schedule property. But the plaintiff shown wrong boundaries with regard to item No.2 of B-schedule property and the same was established by defendants.
50) In support of contentions of learned counsel for the defendants, he relied upon the decision of Hon’ble A.P. High Court at Hyderabad in between
Uppula Ramesh v. Elagandula Harinath and others reported in 2014(1) ALD 1 wherein the Hon’ble Court held that “Stamp Act 1989 – Section 35 –
Instrument not duly stamped – Admissibility in evidence – Determination, relevant criterion – Contents of document and not the nomenclature of document that is relevant in determining admissibility”.
51) As per the judgment, the contents of the document taken into consideration admissibility of the document not the nomenclature of the document. In the case also the nomenclature of the document Ex.A2 sale deed, but the contents of the documents Ex.A2 property enjoying the both of
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them. So the contents of the documents taken into consideration as per judgment and also PW1 clearly admitted that B-schedule property purchased by him for using ingress and egress i.e., B-schedule property jointly. So the contents of the document B-schedule property is a joint lane.
52) Another point as per Ex.A2 is a joint way, but the plaintiff is claiming exclusive right contrary to the recital of the document. It is settled principle of law injunction cannot be granted against the other co-owner. As per recitals of Ex.A.2 that both are using the said property for ingress and egress to reach their houses. That means defendants also one of the co- sharers having joint right over the lane. So there is a joint right over the property injunction not tenable. On that ground also the suit is liable to be dismissed.
53) In support of contentions of learned counsel for the defendants, he relied upon the decision of Hon’ble High Court of Judicature, Telangana and
Andhra Pradesh at Hyderabad in between P. Johan Nelson v. V. Benjamin reported in 2017(2) ALD 53 wherein the Hon’ble Court held that “the plaintiff did not approach Court with clean hands – and suppressed several facts obviously for different reasons known to him – Plaintiff is, therefore, disentitled to claim equitable and discretionary relief under Sec.34”. The Hon’ble Court further held that “Specific Relief Act, 1963 – Section 38 – Permanent injunction – Grant of-, scope – Finding of trial Court in declining to grant main relief of declaration of title – When confirmed by High Court in appeal question of granting consequential permanent injunction in favour of plaintiff does not arise as plaintiff is not in lawful possession of property – Even otherwise, plaintiff being a co-owner along with children of defendant-9 and her husband ‘M’ (parents of plaintiff), is entitled to enjoy each and every piece of land – But not entitled to claim any permanent injunction against co-owners – Grant of
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permanent injunction by exercising power under S.38, declined. The Hon’ble
Court further held that “the plaintiff did not approach the Court with clean hands and suppressed several facts obviously for different reasons known to him. In such case, the plaintiff is disentitled to claim equitable and discretionary relief under Section 34 of the Act of 1963 as he did not approach the Court with clean hands.
54) The learned defence counsel for the defendants further relied upon the decision of Hon’ble High Court of Judicature, Andhra Pradesh at
Hyderabad in between Yashoda Super Specialty Hospitals, Hyderabad v.
Yashoda Medicare and Research Center (P) Ltd., New Delhi and another reported in 2011(1) ALD 79 wherein the Hon’ble Court held that “suit for injunction is equitable remedy and the primary requirement for grant of equitable relief is, a person who claims the remedy must come before the court with clean hands. He must show equity and entitlement under the equity, the relief as sought. Fairness and good faith are two important things required for obtaining any equitable relief”.
55) Injunction cannot be granted against the co-owner in view of that both entitled to enjoy each and every piece of land. In this case also both of them enjoying and every piece of land on that ground the plaintiff is not entitled the injunction.
56) The Court commissioner report and examination of commissioner as C.W.1 executed warrant beyond scope of warrant and given work memos at the time of inspection. But the court commissioner has not complied work memo of defendants also and defendants filed objection with regard to commissioner report. It is settled principle of law the commissioner report not weight of evidence with regard to immovable properties and as per
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commissioner report decide the rights of parties. The commissioner cannot decide rights of parties. On that ground also commissioner report cannot be looked into.
57) The plaintiff suppressed all material facts and filed the suit. On that ground also the suit is liable to be dismissed in view of that as per document/Ex.A.2 that both are enjoying the said property and purchasing the same for using ingress and egress and the same was suppressed by plaintiff and filed this suit. On that ground also plaintiff not entitled for discretionary relief of injunction. He come up with malafide intention and suppressed material facts with regard to subject matter of suit. On that ground the suit is liable to be dismissed.
58) As per judgment of their Hon'ble High Court of A.P. 2017(2) ALD page 52 in para 27 that the plaintiff disentitled to claim equitable and discrenary relief as he did not approach the Hon'ble Court with clean hands. In this case the plaintiff approached this Hon'ble court with unclean hands and suppressed all material facts with regard to the B-schedule property. As per
Ex.A2 the B-schedule property is joint lane both are enjoying the said lane for ingress and egress for their houses. But the plaintiff suppressed the said facts and claiming the exclusive right and also claiming permanent injunction exclusively by restraining the defendants over the B-schedule property and he has no right to do so reasons as stated above. Hence on that ground also the plaintiff is not entitled injunction.
59) As per the relief of injunction the plaintiff is claiming restraining defendants not entitled in view of that the B-schedule property is the lane. Both are enjoying the same for ingress and egress for using the B-schedule property to reach their houses. That fact established by the defendants the
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question of granting of injunction against defendants does not arise in the above said reasons. On that ground also the suit is liable to be dismissed and framing of the suit are not correct. On that ground also the suit liable to be dismissed. There is a cloud of title between the parties for the said way, both are claiming way. But plaintiff is claiming exclusive right contrary to the document. Once the plaintiff contrary to the document seeking relief ought to have sought for declaration of title and seek for permanent injunction is not tenable. On that ground also the suit is liable to be dismissed.
60) The learned defence counsel for the defendants further relied upon the decision of the Hon’ble Supreme Court of India in between
T.V.Ramakrishna Reddy v. M. Mallappa and another reported in 2021(5) ALD 231 (SC) wherein the Hon’ble Court held that “Specific Relief Act, 1963 –
Section 38 – Permanent injunction – Suit for – Not maintainable without claiming declaration of title, when title is disputed”. The Hon’ble Court further held that “it has been clearly held that if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction”.
61) Coming to the appreciation of evidence, as per the evidence of
DW1 to DW3, they filed only Ex.B1 and Ex.B2 documents. Ex.B1 is executed by I.Munikrishnaiah Chetty but he was not examined and the defendants did not file any other link documents to show that the defendants having possession and enjoyment over the plaint schedule mentioned property as on the date of filing of this suit.
62) In the cross-examination of DW1, he admitted that the plaintiff purchased his house property from one Anjaneyulu Naidu on 08-03-1982. The
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plaintiff purchased the house property with specific measurements i.e., East to
West 45 feets, North to South 51 feets and constructed Dhaba house in the said site. The Court Commissioner visited the plaint schedule property and noted the boundaries of the house of PW.1 and plaint schedule property including pathway mentioned in ‘B’ schedule in his report. At the time of visit of
Advocate Commissioner, his mother (D3/S.Asha) was present. DW1 further admitted that he sold away the 6 x 60 feet vacant site on the eastern side of house of plaintiff by taking consideration of Rs.25,000/-. He again says that he received consideration of Rs.25,000/- by sold away the pathway (Sandu daari) and executed a document by him and his three other brothers. The EX.A2,
Dt.06-03-2017 was read over by scribe and after admitting the contents they put their signatures in EX.A2. The counsel for the plaintiff read over the contents of EX.A2 sale deed and he clearly admitted the recitals of EX.A2 including East – West measurements which was having right by their family was sold away to the plaintiff. One Anarbee house site is situated in the northern side boundary of the exhibit ‘B’ schedule sandhu daari mentioned in
EX.A2. The plaintiff is also purchased one site from PW.2 on 23-5-2013 bounded by East - Vacant site of Peer Naidu/PW2, North – House of plaintiff,
West – Land of one Govindaswamy Naidu and others, South - Land of one
Govindaswamy Naidu. He again says after gone through EX.B2 rough sketch and admitted that there is a street for some extent on the western side of house of PW.1. There is a 4 feet gap between the houses of himself and PW.1 since the construction of the house by plaintiff. The disputes arose between
DW1 and plaintiff when the defendants claimed right over the site sold away to the plaintiff under EX.A2. DW1 has purchased the vacant site from one Nooru
Saheb and he did not obtain the mother document/Link document from the said Nooru Saheb.
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63) DW1 clearly admitted that “the defendants sold away the plaint ‘B’ schedule property to the plaintiff after measuring the same and executed
EX.A2 and since then the plaintiff is in possession and enjoyment over the said pathway/sandhu dari”. There is a house wall on the southern side of the house of PW.1. There is a compound wall on the eastern side of the house of plaintiff. DW2 and DW3 clearly admitted in their cross examination that the plaint ‘A’ schedule mentioned property has no direct street access. The sites are situated on east, west and south and plaintiff house is situated on northern side with wall. So there is no access of direct way to reach the street from the plaint ‘A’ schedule mentioned property. The only way is plaint ‘B’ schedule property i.e., pathway/sandhu Dhari is only way to reach the plaint ‘A’ schedule mentioned property, those circumstances categorically shows that the defendants have taken vague pleas, which have no basis and they failed to prove the same. In these circumstances, all the facts as revealed, categorically proved the plaintiff as pleaded by plaintiff, all the preponderance of probabilities lies towards the case of plaintiff. In addition to that fact commissioner evidence also clear that the plaintiff did not construct the house in the total of his site from east to west. He left some property for the passage or pathway on eastern side of his house for the purpose of the plaint ‘A’ schedule property. The defendants did not file any documents to show that they are in possession and enjoyment over the plaint ‘B’ schedule mentioned properties. Whereas the plaintiff filed documents i.e., Ex.A1 to Ex.A6 to prove his possession and enjoyment over the plaint schedule mentioned property.
Therefore, the plaintiff proved his possession and enjoyment over the plaint schedule mentioned properties by way of documents as well as oral evidence.
64) In support of the contentions, the learned counsel for plaintiff filed a decision reported in 2001 (1) ALD 268 in between Sultan-ul-Uloom
Education Society v. Mir Shahmat Ali Khan of Hon’ble High Court of Judicature
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of Andhra Pradesh at Hyderabad, wherein the Hon’ble Court held that “it is settled law that boundaries would prevail over extents. Either the number covering the land or the extent of the land given in the document is only criterion. The Hon’ble Court further held that “reference to the boundaries will always prevail than the number covering the property or the extent of the property given in the document”. The Hon’ble Court further held that “The existence of prima facie right and infraction of the enjoyment of the right is a condition for the grant of injunction and that prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial and only prima facie case is substantial question raised bonafide which needs investigation and a decision on merits”.
65) The counsel for the plaintiff further relied upon a decision in between Suryadevara Pullayya and another vs. Suryadevara Satyanarayana reported in 2001(4) ALT 94 (S.B.) wherein the Hon’ble High Court of
Judicature at Hyderabad held that “Document of 30 years old – Presumption to be drawn – Registered partition deed”. The counsel further relied upon a decision in between G.Venkat Ratnam v. Kollipara Jhansi Lakshmi and others reported in 2011(3) ALT 229 (S.B.) wherein the Hon’ble High Court of
Judicature at Hyderabad held that “when title to Vacant site is proved, the principle of law that ‘Possession follows title’ gets attracted which presumption the other side can rebut only by proving its title or lawful possession. Perpetual injunction – In a suit for perpetual injunction simpliciter, question of title cannot be decided except for a limited purpose”. The counsel for plaintiffs further relied upon a decision in between Shanta Sriram Constructions Pvt. Ltd.,
Hyderabad, rep. by its Managing Director, M.Narsaiah Vs. State of Telangana, rep. by its Principal Secretary, Revenue Department, Hyderabad and others reported in 2022(2) ALT 385 (DB) wherein the Hon’ble High Court for the State of Telangana held that “In an injunction suit first requirement is Title followed
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by Possession person in possession is entitled to injunction”. Therefore, prays the Hon’ble Court to decree the suit.
66) By applying the above decisions, as per Sec.4 and 90 of Indian
Evidence Act, 1872, Ex.A2 document i.e., Unregistered sale deed stands in the name of plaintiff, dated 08.03.1982 which is a 40 years old document and a presumption has to be drawn in favour of the plaintiff that the PW1 is the absolute owner of the suit schedule property by way of Ex.A3/Unregistered sale deed and the examination of any attesting witnesses not necessary to prove the execution of a document registered which is not required by law to be attested as Ex.A3 is a 40 years old document. In the case on hand the suit was filed by the plaintiff for permanent injunction against the defendants as they are evil intention to grab the plaint schedule property, the plaintiff obtained the suit schedule property by purchasing the same under Ex.A3.
During the court of trial, PW1 produced Ex.A1 to Ex.A6 documents with regard to the plaint schedule properties. As per article 25 to 28 of Indian Constitution,
India has great Harmony and it is an ample for religions harmony where people of different religion live peacefully and in harmony. Religion is a matter of people are faith. The constitution of India recognizes the fact, how important religion is in the life of people of India and hence provides for the right to freedom of religion under Article 25 to 28. The constitution of India envisages secularism, ample and provides that every person has a right and freedom to choose and attracts his or her religion. In a number of cases, the Hon’ble Apex
Court of India has held that secularism is the basic structure of constitution, the most important being the Kesavananda Bharati’s case. People of India mainly attracts Secularism, Islam, Jainisam, Buddisam, Sikkisam and
Christianity followed by different religions of the country.
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67) In the instant case, the plaintiff filed this suit for permanent injunction against the defendants. Coming to the appreciation of evidence and by applying the above decisions, in civil disputes the court has wide spectrum of power to deal with various aspects of litigation at various stages i.e., to find out the prima facie case, balance of convenience and irreparable loss or injury caused to the plaintiff, etc. A person in settled possession of property is entitled to retain it and even a rightful owner can be taking the law into his own hands to protect his property. In an injunction simpliciter suit, the possession is entitled for injunction and finally the Court is only required to assess whether the prima facie made out on the dispute raises in the suit and whether triable issue is made out prima facie case has to be established by producing the evidence of both parties, etc. By perusing the evidence of plaintiff and defendants and Ex.A1 to Ex.A6 and Ex.B1 and Ex.B2, Ex.C1 to Ex.C7 documents, the plaintiff is the absolute owner of the suit schedule property and he is in continuous possession and enjoyment of the suit schedule land since 1982 and the claiming of the defendants is repeatedly demanding to encroach the plaint schedule property which is the absolute property of the plaintiff. By perusing the Ex.A1 to Ex.A6 documents clearly shows that the plaintiff proved the prima facie case and makes further consideration of the balance of convenience, etc., if the acts of the defendants is continued, the plaintiff is put to irreparable loss as such the plaintiff is entitled for permanent injunction with regard to his property only as mentioned in Ex.A1 to Ex.A6 documents.
68) The learned counsel for the defendants argued that the plaintiff has not examined the attesters of Ex.A2 and he has not filed any record to show that the plaintiff is in possession and enjoyment of the plaint ‘B’ schedule properties. He further argued that the plaintiff is depend upon the weaknesses of defendants and hence prays the Hon’ble Court to dismiss the suit.
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69) Coming to the appreciation of evidence, the plaintiff filed this suit for Permanent Injunction restraining the defendants, their men from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property. In a suit filed for Injunction simpliciter the only question to be decide is whether the plaintiff is in possession and enjoyment of the suit schedule property on the date of filing of the suit. The plaintiff clearly proved his possession over the plaint schedule property as per the evidence of PW.1 and PW.2 and Ex.A1 to Ex.A6 documents in which in the 2nd page of Ex.A2
Sale deed, dt.06.03.2017 which was paid the deficit stamp duty of Rs.4,575/- imposed by the District Registrar, Tirupati which was treated as Sale deed executed by defendants and the recitals clearly shows that the defendants sold the plaint ‘B’ schedule property and handed over the possession and enjoyment with all full rights and responsibilities and change the patta on the name of plaintiff with un-conditionally with specific measurements and schedule, boundaries etc. Hence the defendants failed to disprove the case of plaintiff. Therefore, the plaintiff is entitled for Permanent Injunction.
70) In the light of the above said reasons, this Court holds that the plaintiff has proved his possession and enjoyment over the suit schedule property and interference or threat of interference by the defendants over his peaceful possession and enjoyment over the suit schedule property. Hence, the plaintiff is entitled for the relief of permanent injunction as prayed for.
Accordingly, Issue Nos.1 and 2 are answered in favour of the plaintiff and against the defendants.
71) ISSUE NO.3:- In view of findings in Issue Nos.1 and 2, this Court holds that the plaintiff is entitled to a decree of Permanent Injunction in respect of the suit schedule property against the defendants as prayed for.
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In the result, this suit is decreed with costs in favour of the plaintiff against the defendants No.1 to 3 by granting permanent injunction restraining the defendants, their men, agents, servants, relatives, nominees, friends, etc., from in any way interfering with the plaintiff’s possession and enjoyment over the plaint “B” schedule mentioned properties.
Typed to my dictation to the Stenographer Gr-III, corrected and
pronounced by me in the open court, this the 24 th day of February, 2025.
Sd/- V. Gopala Krishna,
Additional Civil Judge (Junior Division),
Puttur.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff:
P.W.1: P. Saidha Saheb.
P.W.2: D. Peeraiah Naidu.
For Defendants:
D.W.1: S. Rafhi.
D.W.2: S. Baaji Saheb.
D.W.3: D. Babu Naidu.
For Court:-
C.W.1: N. Nadhamuni, Advocate Commissioner.
EXHIBITS MARKED
For plaintiff:
Ex.A1: Registered sale deed stands in the name of plaintiff, dated 23.05.2013.
Ex.A2: Unregistered sale deed stands in the name of plaintiff, dated 06.03.2017.
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Ex.A3: Unregistered sale deed stands in the name of plaintiff, dated 08.03.1982.
Ex.A4: House tax receipts stands in the name of the plaintiff.
Ex.A5: Bunch of Electricity demand notices stands in the name of plaintiff.
Ex.A6: Rough Sketch of plaint schedule mentioned properties.
For Defendant:
Ex.B1: Unregistered sale deed, dt.19.4.1978 executed by
I.Munikrishnaiah Chetty and others in favour of S.Baba Saheb who is grandfather of Defendant No.1 for the plaint ‘B’ schedule property and other property.
Ex.B2: Rough Sketch for the item Nos.1 and 2 of defendants property.
For Court:
Ex.C1: Warrant of Commission.
Ex.C2: Notice issued by Advocate Commissioner to the petitioner’s counsel.
Ex.C3: Notice issued by the Advocate Commissioner to the petitioner and respondents.
Ex.C4: Rough sketch.
Ex.C5: Work memos of petitioner.
Ex.C6: Requisition of the respondents.
Ex.C7: Photos over the warrant schedule property.
Sd/- V. Gopala Krishna,
Additional Civil Judge (Junior Division),
Puttur.
// True Copy //
Additional Civil Judge (Junior Division),
Puttur.
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FAIR JUDGMENT.
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IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) ::
PUTTUR.
Present: Sri V. GOPALA KRISHNA
Additional Civil Judge (Junior Division),
Puttur.
Monday, the Twenty-fourth (24th) day of February, 2025.
ORIGINAL SUIT NO. 156 /2018.
Between:
P. Saidha Saheb @ Saidhan Saheb, S/o Nainababa Saheb @ P.Abdhul
Khadar Saheb, Muslim, Aged about 60 years, residing at D.No.9/5,
Thatimakula Palle Village, Neallavenganapalle Post, Vedurukuppam
Manal, Chittoor District.
… Plaintiff.
And
1) S. Rafhi, S/o Hushen Saheb, Muslim, Aged about 33 years,
Coolie worker,
2) S. Fathimabi, W/o S. Hammadh Basha, Muslim,
Aged about 42 years, Coolie worker,
3) S. Hasha, W/o Hushen Saheb, Aged about 55 years,
Coolie worker,
All are residing at Thatimakula Palle Village, Nellavengana palle
Post, Vedurukuppam Mandal, Chittoor District.
… Defendants.
This is a suit filed by the plaintiff against the defendant Nos.1 to 3 with a prayer to pass a decree and judgment in favour of the plaintiff and against the defendant Nos.1 to 3; (a) by granting permanent injunction in favour of the plaintiff restraining the defendants, their men, agents, servants, relatives, nominees, friends, etc., from in any way interfering with the plaintiff’s possession and enjoyment over the plaint “B” schedule mentioned properties;
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(b) by directing the defendants to pay the costs of this suit to the plaintiff; and
(c) to pass such other order or orders as the Hon’ble Court may deem, fit and proper in the circumstances of the case.
PARTICULARS OF VALUATION
Rs.24,400-00 Market Value of the Item No.1 of plaint ‘B’ schedule mentioned property Notional Value of the suit schedule properties for the Rs.5,000-00 relief of Permanent Injunction Court Fee paid thereon U/Sec.26(c) of APCF and SV Act Rs.411-00
Rs.17,690-00 Market Value of the Item No.2 of plaint ‘B’ schedule mentioned property Notional Value of the suit schedule properties for the Rs.5,000-00 relief of Permanent Injunction Court Fee paid thereon U/Sec.26(c) of APCF and SV Act Rs.411-00 Total Court fee Rs.822-00
Plaint Presented on : 17-07-2018. Last Represented on : 19-07-2018. Plaint Filed on : 19-07-2018.
The cause of action for the above suit arose on 12-07-2018 at 11.00 AM the defendants objected to use the plaint ‘B’ schedule mentioned property and continues de-die-in-diem at Tatimakula palli Village, Vedurukuppam Mandal, within the jurisdiction of this Hon’ble Court.
This suit is came before me for final hearing on 03.02.2025 in the presence of Sri M. Sanjeevi, Advocate for the Plaintiff and Sri K.Purushotham, Advocate for the Defendant Nos.1 to 3 and having heard and after perusing the material on record, this Court Doth order and Decree as follows:
1.that the suit be and the same is hereby decreed with costs in favour of the plaintiff against the defendants No.1 to 3 by granting permanent injunction restraining the defendants, their men, agents, servants, relatives, nominees, friends, etc., from in any way interfering with the plaintiff’s possession and enjoyment over the plaint “B” schedule mentioned properties.
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2.that the defendants do pay a sum of Rs.5,659-00/- (Rupees Five Thousand Six Hundred and Fifty Nine Only) to the plaintiff towards costs of the suit.
Given under my hand and the seal of the Court this the 24 th day of February, 2025.
Sd/- V. Gopala Krishna,
Additional Civil Judge (Junior Division),
Puttur.
STATEMENT OF COSTS
S.No. Description Plaintiff (Rs.) Defendants (Rs.) 1 Vakalat 2-00 2 Plaint Fees 822-00 3 Process 435-00 Costs Memo not 4 Pleaders Fees 3,000-00 filed hence costs 5 Junior Advocate Fees 1,000-00 not certified.
6 Type Charges 200-00 7 Writing Charges 200-00
Total 5,659-00
Sd/- V. Gopala Krishna,
Additional Civil Judge (Junior Division),
Puttur.
“A” SCHEDULE
Chittoor District - Sri Balaji Registration District - Karvetinagaram Sub- District, Vedurukuppam Mandal – Pathagunta Village Accounts – Dry Sy.No.76/15 at Thatimakula Palle Village – A Vacant House site – within the following measurements and boundaries:
East to West : 43 feet, (13.109 mts) North to South : 29 feet, (8.841 mts)
It means 138.55 Sq.Yards or 1247 Sq.Ft.
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North : Plaintiff’s house,
South : Lands of B. Govindaswamy Naidu and others
East : D. Peeraiah Naidu vacant site,
West : Lands of B. Govindaswamy Naidu and others.
“B” SCHEDULE
Chittoor District - Sri Balaji Registration District - Karvetinagaram Sub- District, Vedurukuppam Mandal – Pathagunta Village Accounts – Dry Sy.No.76/15 at Thatimakula Palle Village – Vacant places within the following boundaries:
Item No.1
East - West : 60 feet (18.292 mts) North - South : 6 feet (1.829 mts)
It means 40 Squire Yards or 360 Sq.fts
North : Houses of Anarbi & Piyaz, South : S. Hushen Saheb, S. Ahamad Basha, S. Marmbi & S.Rafhi Vacant house site (defendants) East : Street, West : Plaintiff’s vacant place (Item No.2 of Plaint ‘B’ schedule mentioned property).
Item No.2
East - West : 5 feet (1.524 mts) North - South : 51 feet (15.548 mts)
It means 28.333 Squire Yards or 255 Sq.fts.
North : House of the P. Himam Saheb, South : Plaint “A” schedule mentioned property, East : S. Hushen Saheb, S. Ahamad Basha, S. Marmbi & S. Rafhi Vacant house site, (defendants) West : Plaintiff’s house.
Sd/- V. Gopala Krishna,
Additional Civil Judge (Junior Division),
Puttur.