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IN THE HONOURABLE COURT OF SPL.JUDGE FOR TRIAL OF
CASES UNDER SCs & STs (POA) ACT, 1989-CUM-
ADDL.DISTRICT JUDGE AT SRIKAKULAM
PRESENT: SRI V.Gopala Krishna Rao, Spl.Judge for trial of cases under SCs & STs (POA) Act-cum- Addl. District and Sessions
Judge, Srikakulam.
WEDNESDAY, the 13th day of FEBRUARY, 2019
APPEAL SUIT NO. 11/2018
Between :
1. Gangu Chinnammadu wife of Krishna Rao, aged 60 years, Hindu, household duties and cultivation, re/at Door No.2-78, Ganguveedhi, Burja village and post, Burja mandal, Srikakulam district.
2. Gangu Varalakshmi wife of Appalanaidu, aged 50 years, Hindu, residing at door No.2-85, rest do.
..Appellants/Plaintiffs.
And :
1. Bhaviri Haranadha Rao son of late Krishna Murthy, aged 52 years, Hindu, cultivation, residing at door No.1-36, Khandyam village and post, RA Valasa mandal, Srikakulam district.
2. Bhaviri Vijaya Kumari wife of late Anantha Rao, aged 43 years, Hindu, Household duties and cultivation, Door No.1-37, rest do.
3. Bhaviri Chakradhara Rao son of late Krishna Murthy, aged 47 years, Hindu, cultivation, re/at door No.1-38, rest do.
..Respondents/defendants.
ON APPEAL FROM THE DECREE AND JUDGMENT PASSED IN
OS 63/2012 dt. 30.10.2017 PASSED BY THE SENIOR CIVIL JUDGE
AT RAJAM
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Between :
1. Gangu Chinnammadu wife of Krishna Rao, aged 56 years, Hindu, household duties and cultivation, re/at Door No.2-78, Ganguveedhi, Burja village and post, Burja mandal, Srikakulam district.
2. Gangu Varalakshmi wife of Appalanaidu, aged 45 years, Hindu, residing at door No.2-85, rest do.
..Plaintiffs.
And :
1. Bhaviri Haranadha Rao son of late Krishna Murthy, aged 47 years, Hindu, cultivation, residing at door No.1-36, Khandyam village and post, RA Valasa mandal, Srikakulam district.
2. Bhaviri Vijaya Kumari wife of late Anantha Rao, aged 38 years, Hindu, Household duties and cultivation, Door No.1-37, rest do.
3. Bhaviri Chakradhara Rao son of late Krishna Murthy, aged 42 years, Hindu, cultivation, re/at door No.1-38, rest do.
..Defendants.
This appeal coming on 6.12.2018 before me for final hearing in the presence of Sri P.Seethannaidu, Advocate for the
Appellants/plaintiffs and of Smt. D.Vijaya Laxmi, Advocate for the respondents 1 and 3 and of Sri S.Sitharam, Advocate for the respondent No.2, and having stood over for consideration till this day and this court delivered the following :
JUDGMENT
01. The appellants are the plaintiffs in the suit OS 63/2012 on the file of Senior Civil Judge, Rajam and the respondents are the defendants in the same suit.
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02)For the sake of convenience both parties in the appeal can be referred as they were arrayed in the suit.
03)The plaintiffs in OS 63/2012 on the file of Senior Civil
Judge, Rajam filed the suit against the defendants for claiming the
relief of declaration declaring that the plaintiffs have got right, title and interest over the suit schedule property and also for the relief of recovery of possession of the suit schedule property.
04)The case of the plaintiffs in OS 63/2012 on the file of Senior Civil Judge, Rajam is that, the plaintiffs are the sisters and they are the daughters of Bhaviri Simmanna of Khandyam village and
Bhaviri Simmanna had only two daughters i.e, plaintiffs and he had no male issues through his wife Appamma and the father of the plaintiff died intestate in the year 1971 and after his death, his wife
Appamma used to manage the properties of Bhaviri Simmanna and she became the absolute owner of the properties of Simmanna along with them. The plaintiffs further contended that, by the date of death of Simmanna, the first plaintiff was married and second plaintiff was minor, their mother Appamma used to manage the properties of
Simmanna and the said Simmanna died intestate.
05)The plaintiffs further contended that , the revenue authorities entered the name of their mother Appamma in 1B register prior to granting Pattadar pass book and title deed in her favour, during the life time of Appamma she used to enjoy the entire property 4 without interruption from anybody and she used to give entire produce to them towards their share, Appamma died intestate on 22.9.1998 leaving them behind her as her class-I legal heirs, after the death of their mother/Appamma, they became the absolute owners of the properties of Appama , they used to cultivate the landed property by engaging coolies and they used to pay land revenue to the
Government till 2004.
06)The plaintiffs further contended that, defendants 1 and 3 are the sons and the 2nd defendant is the daughter in law of Bhaviri
Krishna Murthy who is the son of the younger brother of Bhaviri
Simmanna, during the life time of Simmanna he and his younger brother partitioned their joint family properties long back.
07)The plaintiffs further contended that, after the death of their mother, they managed the properties at Khandyam village, but as they were residing in different villages and unable to cultivate the properties at Khandyam village personally, and that the plaintiffs requested the defendants 1 and 3 and the husband of the 2nd defendant to manage the plaint schedule properties on their behalf and deliver income thereof deducting the agricultural expenses and to pay the half of the next amount on the value of the produce, The plaintiffs further contended that, the defendants used to comment in every year that the expenditure for the cultivation is more than the income and thereby did not pay anything and that the plaintiffs 5 developed suspicion about the way in which the defendants are avoiding to deliver to the produce and enquired about the mater and reliably learnt in the month of June, 2010 that the defendants are manipulating the revenue records in their favour to defeat their rights and the plaintiffs have got right, title and interest over the plaint schedule property and the defendants have no right title or interest over the suit schedule property and they are in permissive possession.
08)The plaintiffs further contended that, the plaint schedule property is in possession and enjoyment of the plaintiffs as they were handed over to another person in the village and the remaining property of Ac.3-90 cents is in permissive possession of the defendants and that the plaintiffs filed the present suit for claiming the relief of declaration of title and also claiming the relief of recovery of possession.
09)The case of the 1st defendant as per the written statement filed by the first defendant which was adopted by other defendants is that, the plaint schedule and its items, extents and boundaries are not correct, the extent and boundaries and survey numbers are correct in respect of item No.3, item No.4, Item No.5 and item No.6, and the extent and boundaries and survey numbers of other items of the plaint schedule is in correct.
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10)The defendants further contended that, Bhaviri
Simmanna, Bhaviri Appalasuri and Krishna Murthy the minor son of
Appalasuri who is represented by guardian Senior Paternal uncle partitioned their properties for an extent of Ac.9-00 cents of wet land into three equal shares and to that effect a registered partition deed
dt. 29.1.1951 was executed in between them , subsequent to the
partition, Bhaviri Simmanna and Bhaviri Krishna Murthy lived jointly and acquired lands for an extent of Ac.9-00 cents, Bhaviri Simmanna and Bhaviri Krishna Murthy jointly possessed an extent of Ac.15-00 of wet land situated at Khandyam village, the Bhaviri Simmanna had no issues through Appamma and Bhaviri Simmanna kept a concubine by name Chinnammi and begotten the plaintiffs through her , the said
Chinnammi has no legal status as wife of Simmanna. The defendants further contended that, Bhaviri Krishna Murthy had four sons and three daughters namely Bhaviri Haranadha Rao, Anantha Rao and
Chakradhara Rao and Simmannaidu, and Eswaramma, Adhilakshmi and Lalithakumari are the daughters of Krishna Murthy, and all the family members lived together and jointly performed the marriages of plaintiffs, defendants and daughters of Krishna Murthy.
11)The defendants further contended that, the plaintiffs are not at all the daughters of the Bhaviri Appamma, whereas they are the daughters born to Chinnammi, so they are not the legal heirs of
Appamma, as such they cannot succeed the properties of Appamma.
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12)The defendants further contended that, in order to avoid future disputes regarding the properties of Simmanna, Bhaviri
Appamma and Chinnammi had jointly executed three settlement deeds dt.24.1.1990, 24.1.1990 and 24.1.1990 and settled their properties in favour of defendants 1 to 3 and Simmannaidu and in favour of the plaintiffs. The defendants further contended that,
Appamma and Chinnammi had jointly executed a gift settlement deed in favour of the plaintiff No.1 for an extent of Ac.1.21 cents in Sy
No.113-4 and 115/5, similarly they had also executed a gift settlement deed in favour of the 2nd plaintiff for an extent of Ac.0-99 cents in Sy
No.113-4 and an extent of Ac.132-9 for an extent of Ac.0-20 cents, intotal Ac.1.19 cents was settled in favour of the 2nd plaintiff. The defendants further contended that, Appamma and Chinnammi had jointly executed gift settlement deeds in favour of defendants 1 to 3 and Simmannaidu , to an extent of Ac.0-67 cents in Sy No.110-2,
Ac.0-72 cents in S.No.132-1, Ac.0-37 cents in Sy No.117-14, Ac.1-57 cents in S.No.117-15, Ac.0-58 cents in Sy No.117-9, Ac.0-49 cents in
S.No.117/8 and Ac.0-26 cents in S.No.117/7, in total Ac.4.66 cents was settled in favour of the defendants and Simmannaidu. Eversince the plaintiffs and defendants are in possession and enjoyments of their respective lands covered under the registered settlement deeds, so , the defendants have got absolute title and possession over the lands covered by the settlement deeds duly executed by Appamma 8 and Chinnammi and that the plaintiffs are estopped to question the registered settlement deeds , the 2nd plaintiff attested on settlement deeds, as such she has got knowledge of the transactions and that those transactions are binding on the plaintiffs and the plaintiffs have no title or possession over the plaint schedule lands and they have also no right or interest in respect of the lands covered by the registered settlement deeds dt.24.1.1990.
13) The defendants further contended the item No.3 to 6 are covered by the above registered settlement deeds and item No.1,2 and 6 are in possession and enjoyment of the defendants and the defendants had given Poyyalamadi and Jadamadi to the 2nd plaintiff in exchange, and the defendants got item No.1,2 and 7 in exchange.
The defendants further contended that, they have partitioned their properties equally covered by the registered gift settlement deeds and the revenue authorities also issued pattadar pass books and title deeds in favour of the defendants 1 to 3.
14)The defendants further contended that, plaintiffs are in possession and enjoyment of the lands covered by the registered settlement deeds and also an excess extent of Ac.0-45 cents, , so the total land is in an extent of AC.2-84 cents and they have been cultivating the said lands ever since the date of execution of the aforesaid registered settlement deeds and that the plaintiffs have no title and possession over the plaint schedule lands at any time.
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15)The defendants further contended that, the plaintiffs never made any entrust of the lands to the defendants and the defendants have been cultivating the plaint schedule lands since more than 22 years, so the defendants acquired rights by way of adverse possession.
16)The defendants further contended that, Bhaviri Appamma died subsequent to the death of Chinnammi, Chinnammi died about 18 years ago and the Bhaviri Appamma died about 16 years ago.
Bhaviri Chinnammi has no legal status as wife of Bhaviri Simmanna and the plaintiffs are born to Chinnammai but not to Appamma and that the averments in the plaint that the plaintiffs were born to
Appamma is a false statement.
17)The defendants further contented that, the suit is barred by limitation and the suit is not maintainable under law, as the plaintiffs are not daughters of Appamma.
18).Basing upon the pleadings of both the parties, the trial
Court framed the following issues .
ISSUES
1) Whether the plaintiffs are entitled for decree to declare that the plaintiffs have got right, title and interest over the suit schedule property?
2) Whether the defendants cultivating the plaint schedule land since more than 22 years and acquired rights by adverse possession?
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3) Whether the suit is barred by limitation?
4) Whether the plaintiffs entitled for consequential relief of recovery of possession of the suit schedule property and deliver the same to the plaintiffs over evicting the defendants therefrom?
5) Whether the plaintiffs entitled for future profits?
6) To what relief?
19)During the course of trial before the trial court, on behalf of plaintiffs, PW1 to PW3 are examined and Ex.A1 to Ex.A5 are marked. On behalf of defendants, DW1 to DW5 are examined and
Ex.B1 to 8 are marked.
20). Basing on the material available on record, the trial court dismissed the suit vide its Judgment dt.30.10.2017. Aggrieved against the said decree and judgment, the plaintiffs in the suit OS 63/2012 filed the present appeal before this appellate Court.
21).I have gone through the evidence adduced by both the sides in the trial Court and the decree and judgment dt. 30.10.2017
passed by the trial Court and the grounds of appeal.
22)Heard arguments of counsel for plaintiffs and also heard the arguments of counsel for defendants.
23)Now, the points for determination are… 11
1) Whether the plaintiffs in OS 63/2012 on the file of Senior
Civil Judge, Rajam are entitled the relief of declaration of title in the
plaint schedule property, as prayed in the plaint?
2) Whether the plaintiffs in OS 63/2012 on the file of Senior
Civil Judge, Rajam are entitled the consequential relief of recovery
of possession in the plaint schedule property, as prayed in the plaint?
3) Whether the trial court committed any error in dismissing the suit OS 63/2012 on the file of Senior Civil Judge, Rajam and , whether the said decree and judgment , requires any interference of this appellate Court in such findings?
3) To what relief?
24)POINT NO. 1: Whether the plaintiffs in OS 63/2012 on the file of Senior Civil Judge, Rajam are entitled the relief of declaration of title in the plaint schedule property ?
It is a settled principle , in a suit for declaration of title the burden is on the plaintiffs to prove the right and title of the plaintiffs in the plaint schedule property, they have to adduce oral and documentary evidence . In a suit for declaration of title, the plaintiffs are not supposed to depend upon the weaknesses in the case of the defendants.
25)The case of the plaintiffs is that, they are the sisters and daughters of Bhaviri Simmanna of Khandyam village and Bhaviri
Simmanna had only two daughters i.e, plaintiffs and he had no male 12 issues through his wife Appamma and the father of the plaintiff died intestate in the year 1971 and after his death, his wife Appamma used to manage the properties of Bhaviri Simmanna and she became the absolute owner of the properties of Simmanna along with them.
26)The plaintiffs further contended that, the revenue authorities entered the name of their mother Appamma in 1B register prior to granting Pattadar pass book and title deed in her favour, during the life time of Appamma she used to enjoy the entire property without interruption from anybody and she used to give entire produce to them towards their share, Appamma died intestate on 22.9.1998 leaving them behind her as her class-I legal heirs, after the death of their mother/Appamma, they became the absolute owners of the properties of Appamma, during the life time of Simmanna he and his younger brother partitioned their joint family properties long back, defendants 1 and 3 are the sons and the 2nd defendant is the daughter in law of Bhaviri Krishna Murthy who is the son of the younger brother of Bhaviri Simmanna, during the life time of
Simmanna he and his younger brother partitioned their joint family properties long back.
27)The plaintiffs further contended that, the defendants used to pay the value of the properties in every year , but they stopped to pay the produce and that the plaintiffs developed suspicion about the way in which the defendants are avoiding to deliver to the produce 13 and enquired about the mater and reliably learnt in the month of
June, 2010 that the defendants are manipulating the revenue records in their favour to defeat the rights of the plaintiffs and that the plaintiffs are constrained to file the suit. The contention of the defendants is that the plaintiffs are not the daughters of Appamma.
28)In order to prove the case of the plaintiffs , the plaintiffs relied on Ex.A1 to Ex.A5. Ex.A1 is the true copy of 1B extract issued by the Tahsildar. Ex.A1 goes to show that the plaint schedule property and some other properties survey numbers and extent are in possession of Bhaviri Appamma and defendants 1 and 3 and wife of
Bhaviri Anantha Rao . Ex.A1 is no way helpful to prove that
Appamma or plaintiffs are having exclusive rights in the plaint schedule property and they are in exclusive possession of the plaint schedule property and other property. Ex.A2 is the death extract of
Bhaviri Appamma, Ex.A2 shows Bhaviri Appamma died on 22.9.1998.
Ex.A3 is the family member certificate. Ex.A4 and Ex.A5 are land revenue receipts. Ex.A4 land revenue receipt in the year 2003, the first plaintiff paid land revenue on behalf of Appamma for survey
No.30 only for fasli 1405-1430 on one day itself. Ex.A5 the land revenue receipt shows the second plaintiff paid land revenue for Sy
No.30 on behalf of Appamma in the year 2004 for the fasli 1405-1430 on one day itself. Ex.A1 to Ex.A5 filed by the plaintiffs fails to 14 establish that the plaintiffs are having exclusive ownership rights in the plaint schedule property.
29)The defendants are contending that the plaintiffs are not the daughters of Appamma and they are the daughters of Bhaviri
Chinnammi. The first plaintiff i.e., PW1 admitted in her evidence in cross examination itself that, herself and second plaintiff got filed the suit OS 84/2007 on the file of Junior Civil Judge, Rajam against
Bhaviri Chakradhar(defendant No.3 herein) and Bhaviri Simmannaidu and the same is pending. She further admits in her evidence in cross examination that, herself and her sister i.e., second plaintiff gave instructions to their counsel namely Sri T.S.Seshachari for preparation of plaint in OS 84/2007 . The defendants also got examined the said advocate Sri T.S.Seshachari as a DW5. He admits in his evidence that, he is practicing as an advocate since 1965 and he filed OS 84/2007 on the file of Junior Civil Judge, Rajam on behalf of plaintiffs and the defendants in the said suit are Bhaviri
Chakradhar(defendant No.3 herein) and Bhaviri Simmannaidu.
Basing on the instructions given by Gangu Chinnammadu and
Varalakshmi who are the plaintiffs in the present suit , he prepared plaint in OS 84/2007 ie.. Ex.B5, the plaintiffs 1 and 2 signed their signatures in his presence in plaint in OS 84/2007. In Ex.B5 plaintiffs admitted that they are the daughters of Chinnammi. Here the plaintiffs filed the suit for the relief of declaration of title , but the 15 plaintiffs failed to prove by producing documentary evidence that they are having exclusive rights in the plaint schedule property and the plaintiffs also failed to produce any documentary evidence to prove that Appamma is having exclusive rights in the total plaint schedule property.
30)In order to prove the case of the plaintiffs, the plaintiffs relied on the evidence of PW1. PW1 reiterated the contents of the plaint in her evidence affidavit. She admits in her evidence in cross examination that, she cannot say the extent and boundaries of suit schedule property and she do not know whether her father and her junior paternal uncle were lived jointly or not. She further admits in her evidence in cross examination that, her father/Simmanna and his younger brother/Appalasuri partitioned their joint family properties.
31)PW2/Surapu Apparao, is another witness of the plaintiffs, he deposed that he know the parents of the plaintiffs i.e., Bhaviri
Simmanna and Appamma and the plaintiffs are only the daughters of
Bhaviri Appamma through Simmanna and after the death of
Simmanna, his wife Appamma enjoyed the properties along with the suit schedule properties by managing the same till her death and subsequently Appamma died at about 17 years back and after her death the plaintiffs being the daughters have been in possession and enjoyment of the properties of Bhaviri Simmanna along with the suit schedule properties. He further deposed that because it is very 16 difficult to the plaintiffs to cultivate the suit schedule properties personally and that they handed over the same to the defendants for cultivation and that the defendants have been in possession and enjoyment of the suit schedule property with the permission of the plaintiffs and used to give produce to the plaintiffs.
32)PW2 further deposed that since 5 years the defendants did not give any share of produce over the suit schedule property to the plaintiffs inspite of their request and more over the defendants are proclaiming that they are the owners of the suit schedule properties and also making efforts to enter into the revenue records. In cross examination, he admits that Bhaviri Anantha Rao was the son in law of the first plaintiff and said Anantha Rao is no more, he cannot say the date of death of Anantha Rao at her house, Appamma executed a gift settlement deed in favour of the plaintiffs and defendants and deceased/Anantha Rao and the plaintiffs and defendants and legal representatives of Anantha Rao are in possession and enjoyment of their respective share of property fell to them under gift settlement deed executed by Appamma and he cannot say the survey numbers, extent and boundaries of the plaint schedule property and he is not cultivating the lands of the plaintiffs and he do not know the lands situated at Burja village for which the plaintiffs and defendants are disputing each other. Therefore, in view of the above admissions of
PW2 in his evidence in cross examination, his evidence fails to 17 establish that the plaintiffs are having exclusive rights and title in the plaint schedule property.
33)PW3/Golivi Ramachandra Rao, is another witness of the plaintiffs, he deposed in his evidence that, he know the parents of the plaintiffs i.e., Bhaviri Simmanna and Appamma and the plaintiffs are only the daughters of Bhaviri Appamma through Simmanna and after the death of Simmanna, his wife Appamma enjoyed the properties along with the suit schedule properties by managing the same till her death and subsequently Appamma died at about 17 years back and after her death the plaintiffs being the daughters have been in possession and enjoyment of the properties of Bhaviri
Simmanna along with the suit schedule properties. He further deposed that because it is very difficult to the plaintiffs to cultivate the suit schedule properties personally and that they handed over the same to the defendants for cultivation and that the defendants have been in possession and enjoyment of the suit schedule property with the permission of the plaintiffs and used to give produce to the plaintiffs. He further deposed in his evidence that, since 5 years the defendants did not give any share of produce over the suit schedule property to the plaintiffs inspite of their request and more over the defendants are proclaiming that they are the owners of the suit schedule properties and also making efforts to enter into the revenue records. He admits in his evidence in cross examination that , his 18 birth place is Khandyam and father of the plaintiffs namely Bhaviri
Appalasuri and Simmanna were own brothers and Bhaviri Krishna murthy was the son of Appalasuri and said Krishna Murthy was the father of defendants 1 to 3 and Bhaviri Simmanna got the properties through his father in the partition in between him and his brother /Appalasuri and father of the plaintiffs died about 40 years back and son in law of the first plaintiff by name Anantha Rao is the own brother of defendants and he cannot say the survey numbers and boundaries and extent of the suit schedule properties. Therefore, the evidence produced by the plaintiffs that is the evidence of PW3 also failed to prove that the plaintiffs are having exclusive rights and title in the plaint schedule property.
34)The plaintiffs failed to discharge their burden to prove that they are having right, title and interest in the plaint schedule property and the plaintiffs also failed to prove that the defendants are with the permissive possession of the plaintiffs in the plaint schedule properties.
35)In order to prove the pleadings of the defendants , the defendants relied on the evidence of DW1 to DW5. DW1/Surapu
Haranadha Rao, deposed in his evidence that, Bhaviri Simmanna and Appalasuri and Krishna Murthy and the minor son of Appalasuri who is represented by guardian is senior Paternal uncle Bhaviri
Simmanna lived jointly and partitioned their properties for an extent of 19
Ac.9-00 cents of wet land into three equal shares and to that effect a registered partition deed dt. 29.1.1951 was executed in between
Bhaviri Simmanna and Appalasuri and Krishna Murthy. In order to prove the same, the defendants got filed certified copy of registration extract of partition deed as Ex.B1. The plaintiff No.1 ie., PW1 admitted in her evidence in cross examination that , their father
Simmanna and his younger brother Appalasuri partitioned their joint family properties, the said partition is admitted by PW1 in her evidence in cross examination itself.
36)DW1 further deposed in his evidence that, Bhaviri
Simmanna kept a concubine by name Chinnammi and begotten the plaintiffs through her , the said Chinnammi has no legal status as wife of Simmanna. The DW1 further contended that, Bhaviri Krishna
Murthy had four sons and three daughters namely Bhaviri Haranadha
Rao, Anantha Rao and Chakradhara Rao and Simmannaidu, and
Eswaramma, Adhilakshmi and Lalithakumari are the daughters of
Krishna Murthy, and all the family members lived together and jointly performed the marriages of plaintiffs, defendants and daughters of
Krishna Murthy.
37)The DW1 further contended that, in order to avoid future disputes regarding the properties of Simmanna, Bhaviri Appamma and Chinnammi had jointly executed three settlement deeds dt.24.1.1990, 24.1.1990 and 24.1.1990 and settled their properties in 20 favour of defendants 1 to 3 and Simmannaidu and in favour of the plaintiffs. The defendants further contended that, Appamma and
Chinnammi had jointly executed a gift settlement deed in favour of the plaintiff No.1 for an extent of Ac.1.21 cents in Sy No.113-4 and 115/5, similarly they had also executed a gift settlement deed in favour of the 2nd plaintiff for an extent of Ac.0-99 cents in Sy No.113-4 and an extent of Ac.132-9 for an extent of Ac.0-20 cents, intotal
Ac.1.19 cents was settled in favour of the 2nd plaintiff. The defendants further contended that, Appamma and Chinnammi had jointly executed gift settlement deeds in favour of defendants 1 to 3 and Simmannaidu , to an extent of Ac.0-67 cents in Sy No.110-2,
Ac.0-72 cents in S.No.132-1, Ac.0-37 cents in Sy No.117-14, Ac.1-57 cents in S.No.117-15, Ac.0-58 cents in Sy No.117-9, Ac.0-49 cents in
S.No.117/8 and Ac.0-26 cents in S.No.117/7, in total Ac.4.66 cents was settled in favour of the defendants and Simmannaidu, ever since the plaintiffs and defendants are in possession and enjoyments of their respective lands covered under the registered settlement deeds,. In order to prove the same, the defendants relied on registration extract of the said gift settlement deeds as Ex.B2 and
Ex.B3, the original registered sale deed executed by Bhaviri
Appamma and Chinnammi is got exhibited as Ex.B4.
38)DW1 further deposed that the plaintiffs are in possession and enjoyment of the lands covered by registered sale deeds , so 21 also an exclusive extent of Ac.0-45 cents and so the total land is an extent of Ac.2.94 cents and they have been cultivating the said lands ever since the execution of the said registered sale deeds.
39)PW1 I.e,. the first plaintiff herself admitted in her evidence in cross examination that, Poyyalamadi and Jadamadi are in possession and enjoyment of herself and second plaintiff . He further deposed that they are enjoying the plaint schedule lands and cultivating the lands more than 22 years and they were acquired right of adverse possession. The plaintiffs and defendants have been in possession and enjoyment of the lands, ever since the execution of said gift settlement deeds with absolute rights. The defendants also got exhibited the certified copy of plaint in OS 84/2007 on the file of
Junior Civil Judge, Rajam as Ex.B5, the certified copy of written statement filed by the defendant NO.1 and others in OS 84/2007 is got exhibited as Ex.B6, the certified copy of judgment in OS 84/2007 on the file of Junior Civil Judge, Rajam as Ex.B7 and certified copy of decree in OS 84/2007 on the file of Junior Civil Judge, Rajam as
Ex.B8.
40)The third defendant is examined as DW2. He deposed in his evidence that, the plaintiffs are not the daughters of Bhaviri
Appamma . He further deposed in his evidence that, Bhaviri
Simmanna and Bhaviri Krishna Murthy lived jointly and acquired lands for an extent of Ac.9-00 cents, Bhaviri Simmanna and Bhaviri 22
Krishna Murthy jointly possessed an extent of Ac.15-00 of wet land situated at Khandyam village,
41)DW2 further deposed in his evidence that, in order to avoid future disputes regarding the properties of Simmanna, Bhaviri
Appamma and Chinnammi had jointly executed Ex.B2 to Ex.B4. The
DW2 further contended that, Bhaviri Krishna Murthy had four sons and three daughters namely Bhaviri Haranadha Rao, Anantha Rao and Chakradhara Rao and Simmannaidu, and Eswaramma,
Adhilakshmi and Lalithakumari are the daughters of Krishna Murthy, and all the family members lived together and jointly performed the marriages of plaintiffs, defendants and daughters of Krishna Murthy, the plaintiffs and defendants have been in possession and enjoyment of the lands, ever since the execution of said gift settlement deeds with absolute rights.
42)DW3/ Nakka Laxminarayana, deposed in his evidence about the execution of gift settlement deeds i.e., Ex.B2 to Ex.B4 and so also the execution of gift settlement deeds and the said gift settlement deeds came into force and the plaintiffs and defendants have been in possession and enjoyment of the lands, ever since the execution of said gift settlement deeds with absolute rights.
43)DW4 /Kondadadi Raghu Kumar, deposed in his evidence that he is a document writer and he is scribing the documents for the last 16 years, his father during his life time , he was a document 23 writer and he used to assist his father in writing documents and
Ex.B4 was shown to him and he identified the signature of his father on Ex.B4.
44) I have clearly stated above, in a suit for declaration of title, the burden is heavily lies on the plaintiffs, but not on the defendants, the plaintiffs have to prove their right and title by producing oral and documentary evidence. Here in the present case, the oral and documentary evidence produced by the plaintiffs is no way helpful to the plaintiffs to prove that they are having right and title in the plaint schedule property.
45)The counsel for the appellants relied on a decision reported in 2019 SAR ( Civil) 37 Supreme Court in between
Jharkhand state Housing Board v. Didar Singh and Another, in that decision it was held ; “ It is well settled by catena of judgments of this court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration,. A suit for mere injunction does not lie only when the defendants raises a genuine dispute with regard to title and when he raised a cloud, over the tittle of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.
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Here in the present case, the suit is filed for the relief of declaration of title and recovery of possession, but not for the relief of permanent injunction. Therefore, the facts and circumstances in the cited decision are different to the instant case. Therefore, in view of the above reasons the plaintiffs in OS 63/2012 are not entitled the relief of declaration of title over the plaint schedule property as prayed in the plaint. Accordingly, point No.1 is answered.
46)POINT No.2 : Whether the plaintiffs in OS 63/2012 on the file of Senior Civil Judge, Rajam are entitled the consequential relief of recovery of possession over the plaint schedule property, as prayed in the plaint?
It was held on point No.1, that the plaintiffs are not entitled the main relief of declaration of title, therefore, the question of granting consequential relief of recovery of possession does not arise at all. Accordingly, point No.2 is answered.
47)POINT No.3 : Whether the trial court committed any error in dismissing the suit OS 63/2012 on the file of Senior Civil Judge,
Rajam and , whether the said decree and judgment , requires any interference of this appellate Court in such findings?
In view of my findings on points 1 and 2, I find there is no illegality in the decree and judgment passed by the trial Court, therefore, there is no need to interfere with the finding given by the 25 trial Court in its judgment in OS 63/2012 dt. 30.10.2007 on the file of
Senior Civil Judge, Rajam . Accordingly, point No.3 is answered.
48)POINT No.3 : In view of my findings on points 1 to 3, the appeal is dismissed by confirming the decree and judgment passed by the Senior Civil Judge, Rajam in OS 63/2012 dt. 30.10.2007
Considering the circumstances of the case, I order each party do bear their own costs in the appeal.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in open Court, this the 13th day of February,2019
Spl. Judge for trial of cases under
SCs & STs (POA) Act-cum-Addl.
District Judge, Srikakulam.
NO ORAL OR DOCUMENTARY EVIDENCE ON EITHER SIDE IN THIS APPEAL
Spl. Judge for trial of cases under SCs & STs (POA) Act-cum-Addl.
District Judge, Srikakulam
Copy to the Senior Civil Judge, Rajam