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In the Court of Civil Judge (Senior Division), Nandigama
Present:- Smt. V. Lakshmi Rajyam,
Civil Judge (Senior Division),
Nandigama.
Tuesday, this the 31st day of December, 2024
O.S.No. 167/2013
Between:
Pullagura Rajesh, S/o. Late Venkata Rama Rao, Hindu, Male, aged about 27 years, Cultivation, R/o. Kanchikacherla Village and Mandal, Krishna District. …….Plaintiff.
And:
1). Pullagura Nageswara Rao S/o. Late Appaiah, Hindu, Male, aged about 56 years, Employee, Central Bank of India, Mylavaram village and Mandal, Krishna District.
2). Satyavolu Jyothiramayi @ Jyothi, W/o. Hussain Sha Kiran, D/o. Pullagura Nageswara Rao, Hindu, Female, aged about 25 years, House wife, R/o. Kanchikacherla Village and Mandal, Krishna District.
…...Defendants.
This suit came up on 12.11.2024 for hearing before me in the presence of Sri. V. Madhu and Sri. G. Pavan Kumar, Advocates for plaintiff and Sri. Ch.Srinivas and Sri. V.Lakshmi Narayana, Advocates for defendants and the same is having stood over to this day for consideration, this Court delivered the following:
JUDGMENT
The plaintiff filed this suit for declaration that he is the absolute owner of the suit schedule property and for consequential relief of permanent injunction, restraining the defendants, their men, agents, followers, relatives and servants from interfering with his peaceful possession and enjoyment over the plaint schedule property in any manner and for costs of the suit.
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2.The averments of the plaint in brief are as follows:
(i). The plaintiff averred that he is the absolute owner and enjoyer of the plaint schedule property and that it had originally belonged to his paternal grandfather by name Pullagura Appaiah. He averred that his grandfather Pullagura Appaiah got the suit schedule property in a joint family partition that took place about 40 years back.
He averred that his grandfather Pullagura Appaiah bequeathed the plaint schedule property to him, while he was a minor, by way of a WILL dated 07.01.1993 and subsequently the said Pullagura Appaiah died on 15.01.1993. He averred that since the date of demise of his grandfather
Pullagura Appaiah, he has been in possession and enjoyment of the plaint schedule property as an absolute owner to the knowledge of one and all including the defendants by virtue of the said WILL and that the defendants have no right, interest or title over the schedule property, but the defendants along with their henchmen came to the schedule property on 15.11.2012 and tried to interfere with his peaceful possession and enjoyment and when he questioned the defendants and their men about their highhanded acts, the first defendant informed him that he has settled the plaint schedule property in favour of the 2nd defendant by way of registered settlement deed dt.21.08.2006 vide document No.
3551/2006 of Kanchikacherla Sub Registrar Office.
(ii). He averred that in the meantime, the neighbourers came there and pacified the matter and on that the defendants went away by threatening that they will occupy the plaint schedule property even by force. He averred that the said settlement deed dt. 21.08.2006 is not at all valid or binding upon him and that it was brought into existence by the 1st defendant only with a view to grab the suit schedule property and as such he was constrained to file this suit for declaration that he is the 3 absolute owner and enjoyer of the suit schedule property by declaring that the said gift deed dt. 21.08.2006 executed by the 1st defendant in favour of 2nd defendant is not valid and not binding on the plaintiff and for consequential relief of permanent injunction, restraining the defendants, their men, agents etc., from ever interfering with his peaceful possession and enjoyment over the suit schedule property. Hence, the suit.
3. On receipt of summons, the 1st defendant made his appearance and Sri. T.V. Markandeswara Rao, Advocate filed
Vakalatnama on behalf of 1st defendant. The 2nd defendant, on receipt of summons, did not choose to appear before this court and she remained exparte on 17.12.2013. The first defendant filed his written statement by denying all the allegations made in the plaint. He contended that the suit of the plaintiff is not maintainable, either on law or on facts, as the plaintiff does not have any basic title in his favour except the unregistered, forged and fabricated WILL and further the plaintiff does not have any physical possession of the plaint schedule property to seek permanent injunction. He contended that the alleged WILL dt.
07.01.1993 said to have been executed by Pullagura Appaiah is a forged and fabricated document and that the signature appearing on it does not belong to his father Pullagura Appaiah. He contended that there are many other litigations between the plaintiff, his vendees and the children of the said Appaiah and that the alleged WILL was not seen till now. He contended that the 2nd defendant, through her tenant, has been in possession and enjoyment of the suit schedule property since 21.08.2006 ie., the date on which he has executed the gift settlement deed in favour of 2nd defendant and prior to that, he was in possession and enjoyment of the suit schedule property, since three decades by 4 paying taxes, to the knowledge of his father, brothers and sisters. He contended that the defendants are in open, exclusive, continuous and uninterrupted possession and enjoyment of the plaint schedule property, since three decades from which time; his father gave the said property for his enjoyment by erecting a shed therein and as such the said property was not mentioned in the partition list dated 16.07.1983 which was brought into existence in confirmation of the earlier partition of all the other properties after 1980 that were in the name of his father Appaiah, in which the said Appaiah has also got share.
(ii). He contended that as the plaintiff is not having title and possession over the suit schedule property, the plaintiff is not entitled for the relief of declaration and permanent injunction. He further contended that if at all the plaintiff wants to question the gift deed which was registered, he has to make his claim within the limitation period and also by paying necessary court fee. He contended that after compromise of the earlier litigation in O.S. 38/2007 on the file of this court on 22.04.2007, the plaintiff executed “Angeekara patram” on 13.11.2014 before Notary at Vijayawada in the presence of some of the family members of late
Pullagura Appaiah stating that he has no claim against the plaint schedule property and another property belonging to the 1st defendant and as such the plaintiff cannot go beyond the said Appaiah as it is binding upon him. He contended that the said WILL dt. 07.01.1993 was created by the plaintiff by forging the signature of his father Appaiah only in order to grab the suit schedule property and to harass the defendants.
He contended that the 2nd defendant has been in possession and enjoyment of the suit schedule property continuously since 1980.
(iii). He further contended that the gift deed dt. 21.08.2006 is binding upon all the children and grandfather of Pullagura Appaiah as 5 the 1st defendant is in possession and enjoyment of the said property during the life time of his father Pullagura Appaiah with his discretion and as such the said property was not included in the partition list dt.
16.07.1983. He contended that the plaintiff had made several illegal acts in selling the properties of other family members also and those matters were subsequently compromised due to the rash and uncontrolled attitude of the plaintiff. He further contended that he is a law abiding citizen…………………………….., whereas his daughter ie., the 2nd defendant is a well educated woman and as such they do not have any necessity to grab away the properties of others.
(iv). He contended that it is the plaintiff who is trying to interfere with the property of others with the help of anti-social elements.
He contended that the suit is not properly valued and that the plaintiff must have valued the suit for the relief of cancellation of the gift deed by paying necessary court fee. Hence, he sought for dismissal of the suit with costs.
4. Basing on the above pleadings, the following issues were settled for trial, namely:- (1). Whether the plaintiff is entitled for the declaration as an absolute owner of the plaint schedule property and for consequential relief of permanent injunction, as prayed for?
(2). To what relief?
5. During the course of trial, the plaintiff/Pullagura Rajesh has got examined himself as P.W.1 and further got examined P.W.2 to P.W.7 and got marked Ex.A.1 to Ex.A.6. Further, it is pertinent to note that the plaintiff has summoned the S.R.O. Kanchikacherla vide I.A. 64/2017 and the same was allowed on 27.02.2017 and through the S.R.O.
Kanchikacherla, Ex.X.1 to Ex.X.3 were marked with the consent of both 6 parties. Further, the S.R.O. Kanchikacherla was examined as P.W.7 and through her Ex.X.4 to Ex.X.6 were got marked. Subsequently, the plaintiff has sent the disputed WILL along with the admitted signatures of Pullagura Appaiah to the Hand Writing Expert vide I.A. 87/2017 dt.
16.03.2017. The Handwriting Expert was examined as C.W.1 and through him, Ex.X.7 was got marked. After closure of the plaintiff’s side evidence, the first defendant got examined himself as D.W.1 and further got examined D.W.2 to D.W.6 and got marked Ex.B.1 to Ex.B.13. It is pertinent to note that even though the plaintiff had examined one Y.
Subba Rao as P.W.4 and P.W.4 filed his chief affidavit in lieu of examination in chief, P.W.4 did not choose to appear before this court for cross-examination and as such his evidence was eschewed on 27.12.2016.
6.Heard arguments on both sides and perused the record
Discussion regarding issue No.1:
7. To prove the issue No.1, the plaintiff/Pullagura Rajesh got examined himself as P.W.1 and he filed chief affidavit in lieu of his examination in chief, which is nothing, but a reiteration of the contents of his plaint. Hence, this court is not inclined to again narrate the same.
8. The plaintiff has got examined one Mandala Nageswara Rao and Devireddy Gopala Rao, who are the alleged attestors of the said WILL as P.W.2 and P.W.3 respectively. P.W.2/Mandala Nageswara Rao and
P.W.3/Devireddy Gopala Rao filed their chief affidavits in lieu of their examination in chief and in such evidence, they deposed that they know the plaintiff, the first defendant and Pullagura Appaiah. They deposed that Pullagura Appaiah was the absolute owner of the plaint schedule property and some other properties and that the plaintiff is the grandson 7 of the said Pullagura Appaiah. They deposed that during the lifetime of the said Pullagura Appaiah, he executed a WILL dt. 07.01.1993 (Ex.A.1) bequeathing the plaint schedule property and other properties in favour of the plaintiff and at that time, since the plaintiff was a minor, his father
Venkata Rama Rao was appointed as a guardian to the plaintiff. They further deposed that at the time of execution of the said WILL, the said
Venkata Rama Rao, Pullagura Appaiah, P.W.2, P.W.3 and Advocate Sri.
Pasala Arogyam were present. They deposed that the said Pullagura
Appaiah dictated the contents of the said WILL to Sri. Pasala Arogyam and he got it computerized and read over the contents of the said
Pullagura Appaiah and the said Pullagura Appaiah being satisfied with the said contents, has put his signature on the said WILL in their presence. They deposed that subsequently, they signed as attestors in the presence of Pullagura Appaiah. They deposed that the said Pullagura
Appaiah executed the said WILL in a sound and disposing state of mind in their presence.
9.The plaintiff has examined one Thota China Subba Rao R/o.
Kanchikacherla village as P.W.5. P.W.5/Thota China Subba Rao filed his chief affidavit in lieu of examination in chief and in such evidence, he deposed that he is having a house nearer to the plaint schedule property.
He deposed that originally the plaint schedule property belongs to late
Pullagura Appaiah, who is the grandfather of the plaintiff and that the said Pullagura Appaiah gave the said property to his grandson ie., the plaintiff about 20 years back. He deposed that during the lifetime of the said Pullagura Appaiah, the father of the plaintiff Venkata Rama Rao and the plaintiff lived in the schedule property and now also the plaintiff is in possession and enjoyment of the plaint schedule property. He deposed 8 that the defendants were never in possession of the plaint schedule property.
10. The plaintiff has examined one Namburi Srinivasa Rao @
Srinu as P.W.6. P.W.6/Namburi Srinivasa Rao @ Srinu filed his chief affidavit in lieu of examination in chief and in such evidence, he deposed that he is having a house nearer to the plaint schedule property. He deposed that originally the plaint schedule property belongs to one
Pullagura Appaiah who is grandfather of the plaintiff. He deposed that the plaint schedule property belongs to the plaintiff and he is in possession and enjoyment of the same. He deposed that the defendants were never in possession of the plaint schedule property. He deposed that previously on 20.05.2008, he had purchased the landed property to an extent of Ac.3.16 cents in R.S.No. 57/4 from the plaintiff by way of registered sale deed (Ex.A.3) vide document No. 2313/2008, which was bequeathed to him by his grandfather late Pullagura Appaiah. He deposed that on verification of the said WILL only, he has got registered the said landed property. He deposed that the defendant is also having knowledge about the said WILL and about the registration of property in his favour.
11.As noted above, the Sub Registrar, Nandigama was summoned to produce the Thumb Impression Register (Ex.X1) and Sri.
V.V. Rama Devi, S.R.O. Nandigama appeared before this court on 19.01.2008 and she gave evidence as P.W.7. She deposed that she has received the summons from this court to produce the Thumb Impression
Register in respect of the documents bearing Nos. 1426/1978, 1235/1958 and 2283/1966. She deposed that she has not produced the
Thumb Impression Register in respect of the document bearing Nos.
1235/1958 and 2283/1966 as they do not bear the thumb 9 impressions/signatures of Pullagura Appaiah. She deposed that the Sub
Registrar was not obtaining the thumb impressions/signatures of the vendees prior to 2002 and for that reason, the thumb impressions/signatures of Pullagura Appaiah were not present on the
Thumb Impressions Register. Through P.W.2, the True Register Extracts of the documents bearing Nos. 1426/1978, 1235/1958 and 2283/1966 were marked as Ex.X.4 to Ex.X.6 respectively. Through plaintiff, Ex.A.1 to Ex.A.6 were got marked. Ex.A.1 is the unregistered WILL dt.
07.01.1993 executed by Late Pullagura Appaiah in favour of the plaintiff,
Ex.A.2 is the true extract of the gift/settlement deed dt. 21.08.2006 executed by the 1st defendant in favour of 2nd defendant, Ex.A.3 is the true copy of registered sale deed dated 20.05.2008 bearing document No.
2313 of 2008 executed by the plaintiff in favour of Namburi Srinu,
Ex.A.4 is the true copy of the registered sale deed dated 25.01.2022 bearing document No. 253 of 2012 executed by N. Srinu in favour of
Madugula Srinu, Ex.A.5 is the true copy of registered sale deed dt.
02.02.2012 bearing document No. 400 of 2012 executed by Namburi
Srinu in favour of M. Sankara Rao and Ex.A.6 is the served copy of the plaint in O.S. 41/2011 along with documents.
12.After closure of the plaintiff’s side evidence, the first defendant/ Pullagura Nageswara Rao got examined himself as D.W.1 and he filed chief affidavit in lieu of his examination in chief, which is nothing but a reiteration of the contents of his written statement. Hence, this court is not inclined to again narrate the same.
13.Further, the first defendant has got examined his sisters
Pullagura Venkata Narasamma, Paleti Vijaya Lakshmi and Mandala
Durga Bhavani as D.W.2, D.W.3 and D.W.5 respectively. D.W.2, D.W.3 and D.W.5 filed their chief affidavits in lieu of their examination in chief 10 and in such evidence, they deposed that the alleged WILL dt. 07.01.1993 is a created and forged document and it was not executed by Pullagura
Appaiah. D.W.2/Pullagura Venkata Narasamma deposed that she is the elder sister of the 1st defendant. D.W.3/Paleti Vijayalakshmi deposed that she is the second elder sister of the 1st defendant, while D.W.5/M.
Durga Bhavani deposed that she is the younger sister of 1st defendant.
They further deposed that they are well aware of the signatures of the said Pullagura Appaiah and that the alleged signatures of Ex.A.1/WILL does not belong to their father Appaiah. They deposed that the plaintiff has not intimated anybody or shown the said WILL. They deposed that since around three decades, the 1st defendant and his daughter are in open, exclusive, continuous and interrupted possession and enjoyment of the plaint schedule property and they have also erected the shed in the plaint schedule property. They deposed that the plaintiff was never in possession of the plaint schedule property. They further deposed that there are other litigations between the plaintiff, his vendees and the children of the said Pullagura Appaiah. They deposed that the said
Pullagura Appaiah gave the suit schedule property to the 1st defendant long back ie., 30 years ago and for that reason, the plaint schedule property was not mentioned in the partition list dt. 16.07.1983 which was brought into existence in confirmation of the earlier partition of all the other properties, after 1980 and that the said Pullagura Appaiah has also got a share. They deposed that the 1st defendant gifted the plaint schedule property to the 2nd defendant by way of registered gift deed dt.
21.08.2006 (Ex.A.2/Ex.B.1) vide document No. 3551/2006 of S.R.O.
Kanchikacherla and the said gift deed was accepted by the 2nd defendant and acted upon. They deposed that the said gift deed was executed with the consent of the all the family members as none of all the family 11 members including the plaintiff and his father and it is binding upon them. They further deposed that there is a tenant of the 2nd defendant in the plaint schedule property and they have been paying taxes etc. They further deposed that in the alleged WILL, it was mentioned as if the maintenance of D.W.2/Pullagura Venkata Narasamma must be taken care by the plaintiff, but he never took care of her. They deposed that in the alleged WILL, it was mentioned as if Pullagura Appaiah purchased
Ac.1.00 cents in the name of D.W.2 in lieu of Ac.1.00 cents of land in
Kanchikacherla gifted to D.W.3/Paleti Vijayalakshmi by their father, but the same is absolutely false. They deposed that no property in an extent of Ac.1.00 cents in the name of D.W.3/Paleti Vijayalskhmi is there. They further deposed that in the alleged WILL, it is mentioned that no children of Pullagura Appaiah had male offsprings, but it is not true. They deposed that in the alleged WILL, it is mentioned as if the properties mentioned in the WILL are self-acquired properties of Pullagura Appaiah, but in fact only one of those properties to an extent of Ac.3.16 cents is the self acquired property of Pullagura Appaiah and the remaining two properties ie. the plaint schedule property and other house to an extent of Ac.0.04 cents are ancestral properties. They deposed that after compromise of the earlier litigation in O.S. 41/2011 on the file of this court, the plaintiff executed an affidavit (Ex.B.13) on 13.11.2011 before a
Notary at Vijayawada in the presence of family members of late Pullagura
Appaiah stating that he has no claim against the plaint schedule property and another property of the first defendant. They further deposed that the said notarized affidavit given by the plaintiff is binding upon him and he cannot go beyond it. They deposed that the plaintiff had made several illegal acts in selling the properties of other family 12 members also and those matters subsequently went into compromise due to rash and uncontrollable attitude of the plaintiff.
14.The first defendant has examined one Paleti Rama Rao who is his brother-in-law as well as the husband of D.W.3 as D.W.4.
D.W.4/Paleti Rama Rao filed chief affidavit in lieu of examination in chief and in such evidence he has supported the version of D.W.1, D.W.2,
D.W.3 and D.W.5. He deposed that he is the brother-in-law of the first defendant and he has personal knowledge of the affairs of the first defendant and they are his closest relatives.
15.The first defendant has examined one Shaik Shafatullah as
D.W.6. D.W.6/Shaik Shafatullah filed his chief affidavit in lieu of examination in chief and in his evidence, he deposed that he is a neighbor of the first defendant and that he has got personal knowledge of the affairs of the defendants as they are his close neighbourers. He deposed that he is the owner of the property situated at Door No. 1-53,
Ramalayam Street, Kanchikacherla where he resides and that to his southern side, there is Ac.0.07 cents of site belonging to P. Hanumantha
Rao which was purchased by the father of P.Hanumantha Rao from
Pullagura Narasaiah and that the said P. Hanumantha Rao constructed a house therein about 40 years back and still his family is residing there.
He deposed that to the southern side of Ac.0.07 cents of land, the plaint schedule property, which is ancestral in nature, lies. He deposed that for around 3 decades, the 1st defendant and later his daughter is in open, exclusive, continuous and uninterrupted possession and enjoyment of the plaint schedule property and they have erected a shed in the plaint schedule property. He deposed that the plaintiff was never in possession of the plaint schedule property. He further deposed that his property is situated nearer to the defendant’s property. He further deposed that the 13 said Pullagura Appaiah gave the plaint schedule property to the first defendant about 30 years back and that in the year 2006, the 1st defendant gifted the plaint schedule property to the 2nd defendant by way of registered gift deed and such gift deed was accepted and acted upon by the 2nd defendant. He deposed that such gift deed was executed with the consent of all the family members and known to all the family members including the plaintiff and his father. He deposed that he is aware of all the above incidents as he was actively involved in the incidents happening around the execution of such gift deed. He deposed that there is a tenant of the 2nd defendant in the plaint schedule property. He further deposed that the people of the locality also know about the execution of such gift deed (Ex.A.2/Ex.B.1). He further deposed that the plaint schedule property and another house site to an extent of Ac.0.04 cents are the ancestral properties of the defendant’s family.
16.As noted above, the disputed WILL (Ex.A.1) was sent to the
Handwriting Expert for comparison and the Handwriting Expert gave opinion to that effect vide Ex.X7. The Handwriting Expert was summoned to produce the documents and to give evidence and Sri. K.
Vani Prasad, Assistant Director, A.P.F.S.L. Mangalagiri, appeared before this court on 31.03.2023 and he gave evidence as C.W.1. C.W.1 deposed that he is working as Assistant Director, A.P.F.S.L. Mangalagiri since
January, 2019 and that he is a Science Post Graduate and he underwent training in Handwriting Examination. He deposed that he has 29 years of vast experience in Forensic Document Examination. He deposed that on 02.04.2019, their department registered (Sic Received) a case pertaining to O.S.167/2013 of Senior Civil Judge’s Court, Nandigama along with 14 certain documents for examination and opinion and that the details of the said documents received for comparison are as follows--
Ex.A.1/WILL dated 07.01.1993 containing the disputed signature marked as “Q.1” and “Q.2” and standard signature of Pullagura Appaiah in a thumb impression register marked as “S.1” and a partition list marked as “S.2 to S.6” by him. He deposed that after careful examination of the above questioned and standard signatures, he gave his opinion vide F.S.L. file No. DCV/9/2019 dated 18.05.2020 (Ex.X.7) opining that “the person who wrote the red enclosed signatures marked as “S.1 to S.6” also wrote the red enclosed marked signatures marked as “Q.1 and Q.2”.
17.Considering the above evidence of both parties and the facts of this case, the plaintiff filed this suit for declaration that he is the absolute owner of the suit schedule property and also for permanent injunction restraining the defendants, their men etc., from ever interfering with his peaceful possession and enjoyment over the suit schedule property. As per the averments of the plaint, the plaint schedule property originally belonged to his paternal grandfather by name Pullagura Appaiah and that the said Pullagura Appaiah got the schedule property in the joint family partition that took place about 40 years back and the said Pullagura Appaiah bequeathed the plaint schedule property in favor of the plaintiff by way of Ex.A.1/WILL dt.
07.01.1993. On the other hand, the contention of the first defendant is that the suit schedule property was given to him by his father Appaiah about 30 years back and that since then he has been in possession and enjoyment of the same. The plaintiff has filed and got marked
Ex.A.1/WILL under which allegedly the said Pullagura Appaiah bequeathed the plaint schedule property in favour of the plaintiff.
Though in the plaint, it has been mentioned that the said Pullagura 15
Appaiah got the suit schedule property in the joint family partition,
P.W.1 during his evidence categorically deposed that the property mentioned in the WILL was the self-acquired property of Pullagura
Appaiah. He further admitted that in Ex.A.1, it was mentioned that the executant got the property in the partition list dt. 16.07.1983. He further admitted that the plaint schedule property was not given to the share of
Pullagura Appaiah. He admitted that in Ex.A.1, it is mentioned that his father as his guardian obtained the WILL in his favour. Hence, as per the admission made by P.W.1, the plaint schedule property did not fell into the share of Pullagura Appaiah.
18.The plaintiff has cross-examined D.W.1 to D.W.6. During the cross-examination of D.W.1 to D.W.6, it was suggested to D.Ws.`1 to 6 that the father of the plaintiff purchased the suit schedule property by way of registered documents in the year 1966 and 1978. D.W.1 to D.W.5 denied the suggestion that the suit schedule property is the ancestral property of said Pullagura Appaiah.
19.D.W.5 further admitted that the suit schedule property was purchased by her father in the year 1966 and 1978 by way of registered documents. She voluntarily deposed that though her father purchased the same, the said property fell into the share of P. Hanumantha Rao.
D.W.6 denied the suggestion of the plaintiff that Pullagura Appaiah purchased the suit schedule property, but not by his father. Hence, the above suggestions made to D.W.1 to D.W.6 shows that the plaintiff is contending that the suit schedule property was purchased by his grandfather Pullagura Appaiah. However, the said contention is contradictory to the contents of the plaint. In the plaint, it was averred that the suit schedule property fell into the share of Pullagura Appaiah in the joint family partition which was made about 40 years back. Though 16 much hue and cry was raised by both parties about a partition list dated 16.07.1983, the same could not be marked for want of impounding stamp duty and penalty. The record of the suit shows that the then
Presiding Officer of this court had held the said document dt. 16.07.1983 as a partition deed and sent the said document to the District Registrar,
Vijayawada for impounding stamp duty and penalty, but before the documents could be impounded and stamp duty could be collected, the document was returned to this court, on the application made by the plaintiff vide I.A. No. 292/2016 on 04.08.2016. Hence, the entire record shows that the said partition list/partition deed was not marked by my learned predecessor for want of stamp duty and penalty and even though it was sent to the District Registrar, Vijayawada, it was returned at the instance of the plaintiff without payment of stamp duty and penalty and as there was already an order regarding the admissibility of the said partition list, this court did not mark the same. However, even though,
P.W.1 admitted that in Ex.A.1 it was mentioned that the executant got the property in the partition list dt.16.07.1983, the defendants more particularly, the first defendant though admitting the partition list, categorically admitted that the suit schedule property was not shown in the said partition list. It is pertinent to note that one of the suggestions made to D.W.1 by the plaintiff which is as follows:
“It is not true to suggest that there is no documentary proof except the partition list dt. 16.07.1983 to show that there was a partition of our joint family properties. The witness voluntarily says that in the year 1980, there was a oral partition regarding two properties and the same was referred in the partition list dt. 16.07.1983. It is true that in the said partition list, there is no reference of earlier partition.
It is true that the “C” schedule property shown in the WILL dt.
07.01.1993 (Ex.A.1) was not shown in the partition list, as the “C” schedule property shown in the WILL dt. 07.01.1993 exclusively 17 belongs to my father Pullagura Appaiah.
20.Likewise, a similar suggestion was made to D.W.4, who is the brother-in-law of D.W.1 and husband of D.W.3. D.W.4 during his cross- examination admitted that there is no mention in the partition list dt.
16.07.1983 that his father-in-law gave the suit schedule property to the 1st defendant. He voluntarily deposed that the “C” schedule property in the partition deed dt. 16.07.1983 is inclusive of the suit schedule property.
21.Hence, the above suggestions made to D.W.1 and D.W.4 clearly shows that the suit schedule property was not shown in the said partition list dt. 16.07.1983. D.W.1 to D.W.5 during their evidence deposed that Pullagura Appaiah gave the plaint schedule property to the first defendant about 30 years back and for that reason, the plaint schedule property was not mentioned in the partition list dated 16.07.1983 which was brought into existence in confirmation of earlier partition of all the other properties after 1980 that Pullagura Appaiah, in which the said Pullagura Appaiah has also got a share. Hence, the above evidence of D.W.1 to D.W.5 shows that there is no mention of the suit schedule property in the said partition list. In Ex.A.1/WILL, dt.
07.01.1993, it was however shown as if except “A” schedule property, all other properties were devolved through the partition list dt. 16.07.1983.
Hence, it is clear that the recitals of Ex.A.1 and the evidence of P.W.1 are contradictory to each other andalso to the contention of the plaintiff that the suit schedule properties fell into the share of the said Pullagura
Appaiah in the joint family partition.
18 22. Furthermore, the suggestions made to D.W.1 to D.W.5 clearly show that the plaintiff is contending that Pullagura Appaiahpurchased the plaint schedule property in the year 1966 and 1978. If at all the suit schedule property was purchased by the said Pullagura Appaiah in the year 1966 and 1978, the plaintiff ought to have mentioned the same in the plaint directly, instead of saying that the plaint schedule property fell into the share of Pullagura Appaiah in the joint family partition. Further, the record shows that when the defendants have denied the execution of
Ex.A.1/WILL and contended that the signatures appearing on Ex.A.1 were forged and that they do not belong to Pullagura Appaiah, the plaintiff had summoned the said Sub-Registrar, Kanchikacherla vide I.A.
64/2017 dt. 27.02.2017. The docket of the suit record shows that on 16.03.2017, the Junior Assistant of Sub Registrar Office, Kanchikacherla was called present and he filed his authorization letter (marked as
Ex.X.3) and also a Thumb Impression Register, Vol. No. 14 (marked as
Ex.X.1) contending that the thumb impressions of Pullagura Appaiah with reference to Doc. No. 505/1995 and the said thumb impressions was marked as Ex.X.2 with the consent of both sides. Further, the evidence of P.W.7 shows that through P.W.7, the true registration extracts of the document bearing No.1426/1978, document No.
1235/1958 and Document No. 2283/1966 were marked as Ex.X.4 to
Ex.X.6 respectively. However, as Ex.X.4 to Ex.X.6 as do not contain the thumb impressions or signatures of Pullagura Appaiah, they were not sent to the Handwriting Expert. The record shows that the plaintiff had filed a petition to send the suit WILL (Ex.A.1) along with the partition list dt.16.07.1983 and Thumb Impression Register to the Handwriting
Expert for comparison and the said Handwriting Expert ie., C.W.1 examined the said documents and gave opinion that the person who 19 wrote the red enclosed signatures marked as S.1 to S.6 ie., the partition list and Ex.X2 also wrote the red enclosed marked signatures marked as
Q.1 and Q.2 ie., on Ex.A.1/WILL. The said opinion of the C.W.1 was marked as Ex.X.7.
23. The plaintiff had examined the attestors of Ex.A.1 as P.W.2 and P.W.3 respectively. P.W.2 and P.W.3 have supported the version of
P.W.1 in all material aspects. Hence, as far as the execution of Ex.A.1 is concerned, the evidence of P.W.1 to P.W.3 and the evidence of C.W.1 and
Ex.A.7 proves that Ex.A.1 was executed by Pullagura Appaiah. Though the learned counsel for the defendants have cross-examined C.W.1 and contended that the C.W.1 has admitted that the writing strokes is very much important for examination of any Hand Writing, letters, space and joining of letters are one of the characteristics for examination and that
C.W.1 has not examined Ex.A.1 and the said partition list in a scientific manner, this court feels that C.W.1 being an expert in his field, has examined Ex.A.1 as per procedure and his evidence cannot be brushed aside. Furthermore, as of now, whether it be an ancestral property or the self acquired property, the suit schedule property, as per both parties, was the property of Pullagura Appaiah. Hence, when the plaintiff could prove the execution of Ex.A.1 in favour of the plaintiff by the said
Pullagura Appaiah, this court feels that the plaintiff is entitled for the plaint schedule property virtue of Ex.A.1/WILL.
24. Though, the 1st defendant contended that the said Pullagura
Appaiah gave the suit schedule property to him about 30 years back and since then he has been in possession and enjoyment of the said property, admittedly, no document was filed to show that the said Pullagura
Appaiah gave the suit schedule property to the 1st defendant. D.W.1 during his cross-examination deposed that he got the suit schedule 20 property by way of oral partition of 1980. D.W.2, D.W.3 and D.W.5 who are the sisters of D.W.1 during their cross-examination deposed that they do not know whether they have filed any document to show that 30 years back, their father gave the suit schedule property to the 1st defendant. Likewise, the D.W.4 who is the husband of D.W.3 also deposed that D.W.1 has filed a partition deed to show the same.
However, he admitted that there is no mention in the partition list dated 16.07.1983 that his father-in-law gave the suit schedule property to the first defendant. He voluntarily deposed that the “C” plaint schedule property in the partition deed dt. 16.07.1983 is an inclusive of the suit schedule property. Though, D.W.4 deposed that the partition list dt.
16.07.1983 includes the suit schedule property, it is contrary to the evidence of D.W.1 who had deposed that the “C” schedule property shown in Ex.A.1/WILL was not shown in the partition list.
25. In fact, D.W.1 to D.W.5 during their chief examination also deposed that the suit schedule property was not shown in the said partition list. Hence, as of now, there is no title document in the name of first defendant to show how he allegedly got the suit schedule property.
The defendants have filed the certified copy of the gift deed dt.
21.08.2006 executed by the first defendant in favour of the 2nd defendant as Ex.B.1. In Ex.B.1 it was mentioned that the D.W.1 got the suit schedule property in a joint family partition between himself, his father and his brother and that it is his ancestral property. However, no document has been filed to prove that there was any partition between himself, his father and his brothers. The plaintiff, on the other hand, contended that during the cross-examination of D.W.1 to D.W.5 that the suit schedule property was purchased by Pullagura Appaiah by way of registered document ie., of 1966 and 1978.
21 26. As noted above, through P.W.7, the said document of 1966, 1978 and 1958 were marked as Ex.X.4 to Ex.X.6, a perusal of Ex.X.4 ie., certified copy of registered sale deed dt. 22.06.1978 executed by
Pullagura Hanumantha Rao, S/o. Suryanaryana in favour of Pullagura
Appaiah S/o. Raghavaiah shows that the said Pullagura Hanumantha
Rao sold the house site in R.S.No. 503/1 in the first ward of
Kanchikacherla village with the boundaries i.e., east, west and north:-
Housesite belonging to Pullagura Appaiah and south: joint passage.
Admittedly, though in the plaint schedule, the said R.S.No. 503/1 was not shown, in Ex.A.1 the “C” schedule property is shown as R.S.No.
503/1. Further, there is no dispute that the suit schedule property is the same property as shown in “C” schedule of Ex.A.1/WILL as the defendants have put suggestions to P.W.1 which he admitted as follows:- “It is true that I filed a suit in respect of the house property. The said scheduled property were the 3 rd item in the Ex.A1. The extent of the property given to me in Item No.C not mentioned in Ex.A1. The Door number and assessment Number were not mentioned. It is true that is house is in scheduled Item No.C in Ex.A1”.
27. Hence, the above suggestions made to P.W.1, Ex.A.1, Ex.X.4 and the evidence of P.W.1 to P.W.3 and C.W.1 clearly show that the suit schedule property belongs to Pullagura Appaiah and he executed
Ex.A.1/WILL in favour of the plaintiff. The plaintiff having proved the execution of the said WILL, he is entitled for declaration that he is the absolute owner of the suit schedule property.
28.Though, the plaintiff could prove that he is entitled for declaration that the suit schedule property was bequeathed to him by virtue of Ex.A.1/WILL, the plaintiff though sought the relief of permanent 22 injunction, P.W.1 during his cross-examination categorically deposed that he has not filed any document to show that he is in possession and enjoyment of the suit schedule property. P.W.1 during his evidence deposed that since the date of execution of Ex.A.1, is was in possession and enjoyment of the plaint schedule property. However, he deposed that he has not filed any house tax receipt before the court to prove his possession over the property as per Ex.A.1. P.W.5 and P.W.6 deposed that the father of the plaintiff and after his demise, the plaintiff is in possession and enjoyment of the plaint schedule property, however categorically P.W.5 during his cross examination, deposed that his house is situated near Cinema hall in the 9th ward, whereas the house of the plaintiff is situated in the first ward of Kanchikacherla panchayat.
Further, except Ex.A.1/WILL, the plaintiff had not filed any other document to show his possession and enjoyment over the suit schedule property. Ex.A.2/settlement deed was executed by the first defendant in favour of the 2nd defendant, and the plaintiff is denying the same. Ex.A.3 and Ex.A.4 are the sale deeds executed by the plaintiff in favour of P.W.6 and P.W.6 to one M. Srinu and from M. Srinu to one M. Sankara Rao and they are documents executed subsequent to Ex.A.1. Further, they do not pertain to the suit schedule property.
29. On the other hand, the defendants have filed and got marked
Ex.B.1 to Ex.B.13. A perusal of Ex.B.1 shows that the suit schedule property was gifted in favour of 2nd defendant by the 1st defendant.
Ex.B.4 ie., the house tax demand receipt for the year 2007 is in the name of D.W.1 and likewise, Ex.B.7 ie., house tax demand receipt for the years 1996, 1997, 1998, 2007, 2008, 2009 and 2010 are in the name of D.W.1.
Ex.B.2 and Ex.B.3/house tax demand notice and house tax receipts for the years 2011 to 2016 show that they are in the name of the 2nd 23 defendant in respect of the suit schedule property. Further, Ex.B.9 endorsement dt. 27.01.2007 issued by the Panchayat Secretary,
Executive Officer, Gram Panchayat, Kanchikacherla shows that for the suit schedule property Pullagura Appaiah was in possession and enjoyment from 1996-97, 1986-87 and for the years 1987-88 to 1991-92
D.W.2 / P. Venkata Narasamma was in possession, from 1992-93 to 2009-10 D.W.1 / Pullagura Nageswara Rao was in posession and from 2011-12 till date, the 2nd defendant is in possession and enjoyment of the suit schedule property. Hence, the documents filed by the defendants clearly prove that the suit schedule property is in possession and enjoyment of the defendants, but not in possession of the plaintiff.
Hence, in view of the aforesaid discussion, though the plaintiff could prove that he is entitled for declaration that he is the absolute owner of the suit schedule property, he is not entitled for the relief of permanent injunction as he could not prove his possession over the suit schedule property. Hence, the suit is entitled to be decreed partly. Hence, issue
No.1 is answered partly decreed in favour of the plaintiff and partly decreed in favour of the defendants.
Issue No.2
To what relief?
30. Considering the issue No.1, the suit is partly decreed in favour of the plaintiff and partly decreed in favour of the defendants 31. In the result, the suit is decreed partly in favour of the plaintiff and partly decreed in favour of defendants with costs declaring that the plaintiff is the absolute owner of the suit schedule property.
However, the relief of permanent injunction in favour of the plaintiff is hereby dismissed.
24 (Dictated to the Personal Assistant, transcribed by him, corrected and pronounced by me in the open court on this the 31st day of December, 2024).
Civil Judge (Senior Division),
Nandigama.
Appendix of Evidence
Witness examined
For plaintiff:
P.W.1: Pullagura Rajesh
P.W.2: Mandala Nageswara Rao
P.W.3: Devireddy Gopala Rao
P.W.4: Yanamandala Subba Rao (eschewed)
P.W.5: Thota China Subba Rao
P.W.6: Namburi Srinivasa Rao @ Srinu
P.W.7: V.V. Rama Devi Sub Registrar Nandigama
C.W.1: K. Vani Prasad, Assistant Director A.P.F.S.L.
For Defendants:
D.W.1: Pullagura Nageswara Rao
D.W.2: P. Venkata Narasamma
D.W.3: P. Vijaya Lakshmi
D.W.4: Paleti Rama Rao
D.W.5: Mandala Durga Bhavani
D.W.6: Sk. Shafatullah
Documents marked on behalf of plaintiff:-
Ex.A.1: Unregistered WILL in favour of the plaintiff executed by Late Pullagura Appaiah dt. 07.01.1993
Ex.A.2: True extract of the gift/settlement deed dt. 21.08.2006 executed by the first defendant in favour of the second defendant.
Ex.A.3: True copy of registered sale deed document No. 2313 of 2008 executed by the plaintiff in favour of Namburi Srinu dated 20.05.2008
Ex.A.4: True copy of the registered sale deed document No. 253 of 2012 executed by N. Srinu in favour of Madugula Srinu dated 25.01.2022
Ex.A.5: True copy of registered sale deed document No. 400 of 2012 executed by Namburi Srinu in favour of M. Sankara Rao dt. 02.02.2012
Ex.A.6 : Served copy of the plaint in O.S. 41/2011 along with documents.
25
Documents marked on behalf of defendants:
Ex.B.1: Certified copy of registered Gift Deed dt. 21.08.2006 executed by D.W.1 in favour of D.2 (corresponding to Ex.A2).
Ex.B.2: House tax demand notice for the year 2011 issued in the name of D.2.
Ex.B.3: House tax receipts for the year 2012, 2013, 2014, 2015, 2016, 2017 issued in the name of the 2nd defendant
Ex.B.4: House tax demand notice issued in the name of D.W.1 for the year 2007.
Ex.B.5: CC of registered WILL dated 21.01.2017 executed by Pullagura Hanumantha Rao (younger brother of D.W.1) in favour of his wife Padmavathi and to his Son Mahesh
Ex.B.6: CC of the registered Settlement Deed dated 04.06.2012 executed by Pullagura Padmavathi and the plaintiff in favour of Namburi Rajya Lakshmi
Ex.B.7: House tax demand notice issued in the name of D.W.1 for the years 1996, 1997, 1998, 2007, 2008, 2009 and 2010.
Ex.B.8: House tax demand notice issued in the name of 2nd defendant for the years 2017-18, 2018-19, 2019-2020, 202-21, 2021-22, 2022-23.
Ex.B.9: Endorsement dated 27.01.2017 issued by the Panchayat Secretary, Executive Officer, Gram Panchayat, Kanchikacherala
Ex.B.10: Attested copy of the report dated 09.09.2017 given by D.W.1 to SHO, Kanchikacherla.
Ex.B.11: Receipt dated 22.11.2018 got issued by the SHO, Kanchikacherla P.S.
Ex.B.12: Receipt dated 12.12.2018 got issued by the SHO, Kanchikacherla P.S.
Ex.B.13: Notarized affidavit tiled as “Angeekara Patram” dated 13.11.2011 executed by the plaintiff in favour of D.W.1 (marked subject to objection that is not admissible)
Documents marked on behalf of C.W.1:
Ex.X.1: Thumb impression register, Vol. No. 14 from 27.04.1992
Ex.X.2: Thumb impression containing the Signature of Pullagura Appaiah.
Ex.X.3: Authorization letter dt. 06.03.2017.
Ex.X.4: True registration extract of the document bearing No. 1426/1978
Ex.X.5: True registration extract of the document bearing No. 1235/1958.
Ex.X.6: True registration extract of the document bearing No. 2283/1966.
26
Ex.X.7: Report of C.W.1 in F.S.L. file No. PCV/9/2019 dated 18.05.2020.
C.J. (S.D.) NDG.
27
In the Court of Civil Judge (Senior Division), Nandigama
Present:- Smt. V. Lakshmi Rajyam,
Civil Judge (Senior Division),
Nandigama.
Tuesday, this the 31st day of December, 2024
O.S.No. 167/2013
Between:
Pullagura Rajesh, S/o. Late Venkata Rama Rao, Hindu, Male, aged about 27 years, Cultivation, R/o. Kanchikacherla Village and Mandal, Krishna District. …….Plaintiff.
And:
1). Pullagura Nageswara Rao S/o. Late Appaiah, Hindu, Male, aged about 56 years, Employee, Central Bank of India, Mylavaram village and Mandal, Krishna District.
2). Satyavolu Jyothiramayi @ Jyothi, W/o. Hussain Sha Kiran, D/o. Pullagura Nageswara Rao, Hindu, Female, aged about 25 years, House wife, R/o. Kanchikacherla Village and Mandal, Krishna District.
…...Defendants.
Claim: Plaintiff filed this suit for declaration that he is the absolute owner of the suit schedule property and for consequential relief of permanent injunction, restraining the defendants, their men, agents, followers, relatives and servants from interfering with his peaceful possession and enjoyment over the plaint schedule property in any manner and for costs of the suit.
Plaint presented on : 02.04.2013
Plaint numbered on : 19.06.2013
Particulars of the suit claim:
(A) As this is a suit for declaration that the plaintiff is the absolute owner and enjoyer of the plaint schedule property, it is valued under section 24
(b) of A.P.C.F and S.V. Act., VII of 1956 as follows:
Market value of the property is Rs.1,03,680.00
Cost of the construction @ Rs.240 X 432
Cost of the site @ Rs.800/-per square X 311 is .. Rs.2,48,800.00
Total value is .. Rs.3,52,480.00 28
Half of the value of the property is .. Rs.1,76,240.00
Half of the market value of the same is under section 24 (b) of A.P.C.F and S.V. Act., VII of 1956.00
The relief of consequential permanent injunction in favour of the plaintiff and against the defendants, restraining the defendants from alienating the plaint schedule property in favour of anybody is valued at
Rs.5,000/- under Sec. 26 © of A.P.C.F and S.V. Act. but as it is consequential relief, no court fee is paid.
On Rs.1,76,240/- a court fee of Rs. 4226/- is paid under section 24
(b) of A.P.C.F and S.V. Act. VII of 1956, since the court fee is paid on the main relief, no court fee is paid for the consequential relief of injunction.
The value of the suit for te purpose of court fee and jurisdiction is
Rs. 1,76,240/- Under Section 50 (1) of A.P.C.F and S.V. Act. VII of 1956.
The cause of action of the this suit arose on and from 40 years back when the oral partition took place between Pullagura Appaiah and his family members, on and from 07.01.1993 when the said Pullagura
Appaiah executed the WILL in favour of the plaintiff by bequeathing the plaint schedule property, on and when 15.01.1993 the said Appaiah died, and when the plaintiff came into possession and enjoyment of the plaint schedule property immediately after the death of the said Appaiah, on and 15.11.2012 since when the defendants have been canvassing in the village that they will occupy the plaint schedule property even by force, and subsequently so at Kanchikacherla village and Mandal,
Krishna District, where the plaint schedule property is situated, within the jurisdiction of this court.
This suit came up on 12.11.2024 for hearing before me in the presence of Sri. V. Madhu and Sri. G. Pavan Kumar, Advocates for plaintiff and Sri. Ch.Srinivas and Sri. V.Lakshmi Narayana, Advocates for defendants and the same is having stood over to this day for consideration, this Court doth order and decree:
(i). that the suit be and the same is hereby decreed partly in favour of the plaintiff;
(ii). that the suit be and the same is hereby decreed partly in favour of the defendants; 29
(iii). that the plaintiff be and the same is hereby declared that he is the absolute owner of the suit schedule property;
(iv). that the relief of permanent injunction in favour of the plaintiff be and the same is hereby dismissed;
(ii). that the defendants do pay an amount of Rs.31,677/- to the plaintiff towards costs of the suit and do bear their own costs of
Rs.23,601.00 (Schedule copy is attached to the Decree)
Given under my hand and the seal of the court this the 31st day of December, 2024.
Civil Judge (Senior Division),
Nandigama.
Memo of Costs
SlNo. Description Plaintiff Defendants 1 Stamp on Vakalat 2.00 2.00 2 Stamp on petition 10.00 -- 3 Stamp on plaint 4226.00 --
4. Stamp on process 600.00 -- Witness Batta 200.00 --
5. Advocate Fee (Sr.) 17624.00 17624.00
6. Advocate Fee (Jr.) 5875.00 5875.00
7. Expert fee 3000.00 --
8. Commissioner Batta 40.00 --
9. Writing Charges 50.00 50.00
10. Typing Charges 50.00 50.00
11. Total 31,677.00 23,601.00
C.J. (S.D.) NDG.