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IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE:::
WARANGAL.
Friday, the 27 th day of November, 2015
Present:- Smt. V. Sarada Devi, II Addl. Junior Civil Judge, Warangal.
O.S. No. 762 OF 2010
Between : Mujjiga Rajamouli …Plaintiff
And
1. Thummala Pradeep Reddy
2. Thummala Kaladevi
3. Modem Sudarshan
4. Mujjiga Radha Rani
5. Mujjiga Srikanth
6. Mujjiga Srinath
7. Mujjiga Veerabhadra Swamy
8. Dopathi Sammi Reddy
...Defendants
This suit is coming up before me for final hearing on Dt: 16-10-2015 in the presence of Sri Y. Aravind, Counsel for Plaintiff, and of Sri M. Sadasivudu, Advocate for defendant No.1,4, 5, 6 & 8 and defendants No.2 & 3 remained exparte and suit against defendant No.7 is dismissed and upon perusing the material on record and having the matter stood over for consideration this Court has made the following:
: : J U D G M E N T : :
1.The present suit is filed by the plaintiff against the defendants seeking relief of permanent injunction by restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property.
2.The averments of the plaint in brief are:
The plaintiff and defendant No.7 are the natural brothers. They are the absolute owners and possessors of vacant land in Sy.No.128/A old admeasuring Ac.0-17 ½ gts., of Darga Kazipet, Hanamkonda, having inherited the same from their father Veeraiah @ Veeraswamy. Mujjiga
Parushuramulu i.e., the husband of defendant No.4 and father of
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defendants No.5 & 6 was elder paternal uncle’s son of plaintiff and defendant No.7. On behalf of plaintiff and defendant No.7 legal notice was issued to defendant No.1 from the office of plaintiff’s counsel and thereafter defendant No.7 has not evinced interest, therefore he was also made as a party to the suit proceedings for proper adjudication of the dispute in the present case. It is further stated that defendant No.1 entered into sale agreement with plaintiff and defendant No.7 on 21-5- 2007. Defendant No.2 is the mother of defendant No.1. Defendant No.3 joined in execution of some documents with plaintiff and defendant No.7.
Therefore he is also made as party. Defendant No.8 in collusion and in connivance with other defendants started interfering into the peaceful possession and enjoyment of the plaintiff’s land in two bits on east and west side of 100 feet road and the present suit is filed in respect of 204
Sq. yards which is the suit land. The total extent of land in Sy.NO.128/A is
Ac.1-26 gts. The father of plaintiff and defendant No.7 namely Veeraiah and his elder brother Kajaiah was having equal share therein. The partition was effected in between them long back about 50 years and mutations were effected in revenue records as per the partition. On the death of
Kazaiah, his son Parushuramulu and on the death of Parushuramulu in 2006 his wife i.e., defendant No.4 and his children i.e., defendants No.5 & 6 succeeded to the land. On the other hand on the death of Veeraiah in 2000 both plaintiff and defendant No.7 succeeded to their part of land.
From the entire extent of aforesaid survey number, KUDA acquired part of land for formation of 100 feet road from REC to Kazipet Jagir and remaining 50% compensation was paid through proceedings No.
E2/342/85 dt: 5-8-1992. More compensation amount was paid to Late
Parushuramulu than that of Veeraiah, since more extent of land was acquired from Parushuramulu. For formation of 60’ road, though land was
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acquired no compensation was paid. For both roads an extent of Ac.0-33 gts., was acquired and the remaining area was found to be Ac.0-28 gts/.
as per the demarcation made by the Survey and Land records office, in proceedings No. A3/127/2007, dt: 27-2-2007. Out of it plaintiff and defendant No.7 are owning Ac.0-17 ½ gts., and legal representatives of
Parshuramulu are having Ac.0- 10 ½ gts. On eastern side of 100 feet road plaintiff and defendant No.7 are owning Ac.0-10 ½ gts., and defendants
No. 5 to 7 are owning Ac.0-3 ½ gts. On the western side of the suit land, the plaintiff and defendant no.7 are owning Ac.0-07 gts. Defendants No.5 to 7 are owing Ac.0-03 ½ gts., each on north and south directions of plaintiff and defendant No.7. Defendant No.1 is aware of the aforesaid facts and on verification of the said document only he entered into sale agreement on 21-5-2007 to purchased Ac.0-06 gts., of land and paid some amount on that day. As per the recitals of that sale defendant No.1 was liable to pay total sale consideration in two installments and the first by or before 20-7-2007 and the balance by or before 20-9-2007. Then only the plaintiff and defendant No.7 are liable to execute the document as required by the defendant No.1 for total extent. As required by defendant
No.1, the plaintiff and defendant No.7, with defendant No.3 have executed two agreement of sale cum GPA deeds in the first week of March, 2008 in the names of Velpula Rajamani and Dasari Sammakka. Defendant No.1 did not adhere to the afore said material condition of the said agreement to make payment to them as such the agreement with him became null and void. Defendant No.1 is aware that plaintiff and defendant No.7 are ordinary residents of Hyderabad, inview of their employment. Defendant
No.1 has not only caused financial loss to the plaintiff and defendant No.7 but also made them to roam number of times from Hyderabad to Warangal on false pretexts. He had caused both physical and mental agony to them.
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Having vexed with the dilatory and delay tactics of defendant No.1, the plaintiff and defendant No.7 initiated legal action by issuing legal notice dt:
27-1-2009 calling up on the defendant No.1 to make payment of entire sale consideration within one week, failing which the agreement shall be terminated. Defendant No.1 got issued reply without date but served on 2- 3-2009 on plaintiff counsel for which they have got issued rejoinder dt:9- 3-2009. It is further stated as soon as the plaintiff received the notice
dt:29-9-2009 from T. Sadasivudu, Advocate, the same was handed over to
defendant No.1 who inturn under took to take of care of the issue and the plaintiff and defendant No.7 specifically denied that they ever gave any reply or instructed N. Mahatma, G. Srinivas , Advocates, to give any reply as mentioned in the said reply to defendant No.1. It is further submitted that defendants No.1 to 6 in connivance with each other and with an intention to cause loss to the plaintiff have invented the documents. It is further stated that the plaintiff and defendant No.7 got executed a sale agreement cum GPA in favour of third parties who inturn have sold the land to an extent of 317.5 Sq. yards to Dr. Guguloth Venkanna in the year 2008. Defendants No.1 to 6 have suppressed the material facts and they are playing hide and seek game. After setting apart all the plotted area covered under those documents and terminating the sale agreement dt:
21-5-2007 and after leaving the area of defendant No.7, the plaintiff is having on either side of 100 feet road in two bits admeasuring in 204 Sq.
yards (suit land) on the western side of the road and 80.5 Sq. yards on east of said road and the plaintiff is in peaceful possession and enjoyment of the same as absolute owner. The development of illegal interference and after issuance of legal notice dt: 27-1-2009 is at the instance of defendant No.1. The illegal interference of defendant with the peaceful possession and enjoyment of the plaintiff took place on 12-6-2010. The
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defendant also threatened plaintiff, by continuing their illegal activities and if the defendants succeed in their illegal attempts, then the plaintiff would suffer hardship. Hence suit filed for permanent injunction.
4.On the other hand defendant No.1 filed his written statement.
Adoption memo filed for defendants No.4,5,6 & 8. Defendants N0.2 & 3 remained exparte. Suit against defendant No.7 was dismissed.
5.The averments of the written statement in brief are :
It is submitted that the defendant herein is resident of Habsiguda,
Brundavan Nagar Colony. The name of the defendant No.2 is not Smt.
Thummala Kalavathi, but it is Smt. Thummala Kamala Devi. Defendant
No.3 was the rightful owner who made registration of land in favour of defendant No.8. Whereas defendants No.4 to 6 are the co-obligates to defendant No.3. Though they are not having title or possession, their names were incorporated along with defendant No.3 as vendor. It is further stated that the plaintiff has to stand for explanation as to how he could find 204 Sq. yards under existence as the suit land, when there is no such land. It is further stated that on what basis the plaintiff uttered, unwarranted language against the defendant that he is familiar litigant for the same, he is taking steps to file a case of defamation and a suit for damages in a separate proceedings. It is further stated that the plaintiff narrated unwarranted story and attempted to suit out the unwarranted things which does not hold any merits. It is further stated that a single document or pleading is not disclosing that the plaintiff is having possession and enjoyment and the valid title as on the date of filing of the suit, as such he is not entitled for any relief of permanent injunction.
The plaintiff has not approached this court with clean hands. The alleged rough sketch appended to the plaint is a created one for the purpose of filing of the suit to show some thing as if under existence. In fact in part –
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1 towards northern side such land gone in road, similarly in part 2 also gone in road but the plaintiff himself shown as land is under existence. The alleged pass book filed by plaintiff is of SyNo.204, but not 207 which is clearly appearing to the naked eye. The plaintiff filed notice dt: 27-7-2007 which stands in the name of Sudershan Rao and how it pertains to the plaintiff is not explained. It is further stated that the plaintiff has also filed tounch map vide file A3/127/2007. As per that map only, survey number is identified. There is no single paper to show the survey No. 207 by the plaintiff. The plaintiff approached this court with unclean hands by showing wrongful cause of action to get wrongful means, though there is no existence of physical possession of land. The defendant is reserving his right to file his additional written statement or rejoinder when ever needed. Hence prayed to dismiss the suit with costs.
6.Upon perusal of the pleadings, the following issues were framed.
7.Issues No.1 & 2
1.Whether the plaintiffs are entitled for the relief of per- manent injunction as prayed for?
2. To what relief?
8.On behalf of plaintiffs, P.Ws.1 & 2 examined, Ex.A1 to A9 marked. On behalf of defendant D.W.1 examined. No documents marked.
C.W.1 examined and Ex.X1 & X2.
9.Heard arguments of both sides.
10.Now the issue for discussion is :
11.Issue No.1
Whether the plaintiffs are entitled for the relief of per- manent injunction as prayed for?
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The plaintiff got examined himself as P.W.1 and got marked Ex.A1 to
A9 on his behalf. It is the case of the plaintiff/P.W.1 that he and the defendant No.7 herein namely Veerabhadra Swamy are the natural brothers and they are absolute owners and possessors of vacant land admeasuring Ac.0-17 ½ gts., situated in Sy.No.128/A old, 207 (new) at
Kazipet Jagir, Hanamkonda revenue village. They have inherited the same from their father Veeraiah @ Veeraswamy. The husband of defendant No.4 namely Parshuramulu, who is also father of defendants No.5 & 6 herein was the son of elder paternal uncle of P.W.1 viz., Kajaiah. The total extent of land in Sy.No.128/A is of Ac.1-26 gts. The father of P.W.1 namely
Veeraiah and his elder brother Kajaiah got equal share in the partition, which was effected between them long back. Mutations were also effected in the revenue records as per the partition. After the death of Kajaiah his son Parshuramulu (husband of defendant NO.4) inherited his share and on the death of Parshuramulu in the year 2006, defendants No.4 to 6 succeeded to that land. On the other hand after the death of Veeraiah in the year 2000, P.W.1 and his brother i.e., defendant No.7 succeeded to the share of their father. It is the contention of plaintiff counsel that out of
Ac.1-26 gts., an extent of Ac.0-33 gts., each fell to the share of Veeraiah and Kajaiah.
12.The evidence of P.W.1 further reveals that KUDA officials acquired part of land in suit Sy.No. 128/A for formation of 100 feet road from REC to Kazipet Jagir. According to P.W.1, more compensation amount was paid to Late Parshuramulu, than that of his father Veeraiah since more extent of land was acquired by KUDA from Parshuramulu. According to
P.W.1 the total land which was acquired by KUDA officials for formation of 100 feet road is Ac.0-33 gts., in SyNo.128/A. Hence the remaining area left in suit Sy.No. is Ac.0-28 gts., as per demarcation made by Survey and
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Land records, Warangal in proceedings file No. A3/127/2007 dt: 27-2- 2007. According to P.W.1 out of Ac.0-28 ts., he and defendant No.7 were owning Ac.0-17 ½ gts., whereas the legal representatives of Parshuramulu i.e., defendants No.4 to 6 are having Ac.0-10 ½ gts., in the suit survey number. According to P.W.1 on the eastern side of 100 feet road, he and his brother are owing Ac.0-10 ½ gts., Whereas defendants NO.4 to 6 are owing Ac.0-3 ½ gts. Coming to the western side of 100’ road, P.W.1 and his brother are owing Ac.0-07 gts, whereas defendants No.4 to 6 are owing Ac.0-03 ½ gts., each on north and south directions of their land, aggregating to Ac.0-07 gts. P.W.1 deposed that, out of Ac.0-07 gts., of their land located on the western side of 100 feet road, they have entered into agreement of sale with defendant No.1 on 21-5-2007 in respect of
Ac.0-06 gts., of land, for which some amount was paid to them on that day. As per the recitals of the said agreement dt: 21-5-2007, defendant
No.1 is liable to pay the total sale consideration in two installments i.e., first installment by or before 20-7-2007 and balance by or before 20-9- 2007.
13.In support of his case P.W.1 had filed Ex.A1 pahani for the period 1979-80 which reveals the total land in Sy.No.128/A is Ac.1-26 gts., and M. Narsimhulu is shown as the possessor in column No. 9.
Whereas at column NO. 14 the names of M. Veeraswamy and
Parshuramulu were shown as the persons, who are cultivating the lands to an extent of Ac.0-33 gts., each in the suit survey number. Though P.W.1 deposed that he and defendant No.7 in toto are owing an extent of Ac.0- 17 gts., of land in Sy.No.128/A old and Sy.No.207 (new), there is no document on record to show that their names were mutated in the revenue records to that extent. Even as per the pahanies filed by P.W.1, the names of Veeraswamy and Parshuramulu are appearing in the
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possessor column in respect of Ac.0-33 gts., each, totaling to an extent of
Ac.1-26 gts. Ex.A1 document is not much helpful to the case of plaintiff to prove his claim in respect of suit property. It is the case of plaintiff /P.W.1 that out of Ac.1-26 gts., belonging to Veeraswamy and Kajaiah, an extent of Ac.0-33 gts., was effected in the road widening, hence the land which was succeeded by plaintiff and defendant No.7 from Veeraswamy is Ac.0- 17 ½ gts., out of Ac.0-33 gts., which fell to the share of Veeraswamy.
Defendants No.4 to 6 succeeded to the land to an extent of Ac.0-10 ½ gts., out of Ac.0-33 gts., which fell to the share of Kajaiah. No document is filed on behalf of plaintiff/P.W1 to prove that the husband of defendant
No.4 namely Purshuramulu succeeded to Ac.0-10 ½ gts., of land in suit survey number. After the death of Kajaiah, the name of Parshuramulu is being recorded in the revenue records in respect of Ac.0-10 ½ gts., of land. It is the case of plaintiff/P.W.1 that after setting part of the plotted area covered under the documents and terminating the sale agreement dt:
21-5-2007, after leaving the area of defendant No.7, he is having on either side of 100 feet road in two bits admeasuring 204 Sq. yards. i.e., suit property on western side of 100 feet road. He is having 80.5 Sq. yards on eastern side of 100 feet road and he is in peaceful possession and enjoyment of those two bits. However he had filed the present suit in respect of 204 Sq. yards only.
14.The evidence of P.W.1 do not reveal whether the partition took place in between him and defendant No.7 in respect of Ac.0-17 ½ gts., of land in suit survey number or not. Though it is deposed by him that after leaving the area of defendant No.7, he is having 204 Sq. yards on the western side of 100 feet road, his evidence do not reveal how much extent of land is in possession of defendant No.7 in suit survey number as on the date of filing of this suit. It is the main contention of P.W.1 that defendant
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No. 1 had entered into sale agreement with them on 21-5-2007 in respect of Ac.0-06 gts., of land in suit survey number 207. Defendant No.1 who is examined as D.W.1 in the present case. During his cross examination he admitted that on 21-5-2007, he had entered into agreement of sale with plaintiff/P.W.1 and defendant No.7 namely Veerabhadraiah relating to purchase of land to an extent of Ac.0-06 gts., in Sy.No.207. At one instance D.W.1 deposed that at the time of entering into the agreement of sale he had not verified the documents relating to the title of his vendor, but was satisfied with their statement relating to their title over their property.
15.At the other instance D.W.1 deposed that his alleged vendor i.e., P.W.1 and defendant No.7 do not have any land in Sy.No.207 as they have not shown any document to him to prove their title. His evidence clearly reveals that except oral demand he had not issued any legal notice to them i.e., to his vendor demanding to show their document relating to title prior to issuing notice to him by his alleged vendor. Though
D.W.1 denied that P.W.1 and defendant No.7 do not have any land in suit survey number, his evidence further shows that he had paid an amount of
Rs.18,00,000/- approximately under that agreement in installments i.e., within a period of 2 years. Defendant No.1/D.W.1 did not plead in his written statement that under the alleged agreement of sale dt: 21-5-2007 he had paid an amount of Rs.18,00,000/- to P.W.1 and defendant No.7 in installments. His evidence further reveals that he had not filed any suit against his alleged vendor i.e., P.W.1 and defendant No.7 in order to get back the money paid by him, but he was demanding them orally for repayment. His evidence do not reveal that whether he had sent any legal notice to P.W.1 and defendant No.7 for repayment of his money.
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16.Thus it is apparent from the evidence of P.W.1 that even though he had entered into the agreement of sale dt: 21-5-2007 with
P.W.1 and defendant No.7, he did not choose to make any payment to his alleged vendor, under that document. D.W.1 failed to file the alleged agreement of sale before this court. Moreover if really D.,W.1 was not satisfied about the title of his alleged vendor in respect of Ac.0-06 gts., of land in Sy.No.207, then the question of payment of Rs.18,00,000/- by him to his alleged vendor under that document does not arise. Thus it is apparent from the record that D.W.1 is making a false statement before this court by stating that he had made payment of Rs.18,00,000/- under the alleged agreement of sale dt: 21-5-2007 to plaintiff and defendant
No.7. It is the main contention of P.W.1 that as D.W.1 failed to pay the sale consideration as per the conditions stipulated in the alleged agreement of sale dt: 21-5-2007, the said agreement became null and void. His evidence further reveals that Ex.A6 is the office copy of legal notice dt: 27-1-2009 which was got issued by him through his counsel to
D.W.1 by demanding him to pay the entire sale consideration for Ac.0-06 gts, of land within one week from the date of notice failing which it shall be treated that the alleged agreement dt:21-5-1007 is terminated. The contents of Ex.A6 reveals that D.W.1 who is carrying on with real estate business is aware of the fact that Ac.0-07 gts., of land in suit survey umber which is situated towards western side of 100 feet road was succeeded by plaintiff and defendant no.7 and out of which D.W.1 entered into sale agreement on 21-5-2007 who purchased Ac.0-06 gts., of land.
17.Though the contents of Ex.A6 reveals that some amount was paid to P.W.1 and defendant NO.7 on that day, both Ex.A6 (notices) and as well as the plaint averments including the evidence of P.W.1 do not reveal the exact amount which was paid by D.W.1 to them on 21-5-2007.
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Ex.A6 further reveals that D.W.1 is liable to pay the sale consideration in two installments i.e., by or before 20-7-2007 and balance by or before 20- 9-2007. Then only P.W.1 and defendant No.7 are liable to execute the documents in favour of D.W.1 for the total extent. As per Ex.A6, D.W.1 did not adhere to the material conditions of the agreement of sale and thereby the agreement is treated as null and void under Ex.A6 notice there was a demand by the plaintiff counsel to D.W.1 that D.W.1 shall make payment of entire sale consideration of Ac.0-06 gts., within one week from the date of that notice failing which the agreement shall be deemed to have been terminated. Ex.A6 (notice) is dt: 27-1-2009 i.e., prior to filing of this suit.
18. According to D.W.1, they have issued reply to Ex.A6 notice as in Ex.A7. The contents of Ex.A7 notice reveals that P.W.1 and defendant
No.7 entered into agreement of sale with D.W.1 by posing that they are owners of the land in Sy.No.207. Ex.A8 is the RP cover addressed to the plaintiff counsel. Ex.A9 is the rejoinder notice issued by the plaintiff counsel, to the counsel for defendant No.1. Even in Ex.A9, P.W.1 had denied that they ever gave any reply or instructions to Sri N. Mahathma and Srinivas, Advocates to give any reply as contained in Ex.A7 reply notice. Ex.A9 further reveals that D.W.1 is directed to furnish authenticated copies of notice referred in Ex.A7 within one week time from receipt of that notice, to take suitable steps. It is the contention of plaintiff counsel that no reply was got issued by D.W.1 to Ex.A9 and no such document i.e., the alleged legal notice dt: 21-9-2007 was filed by
D.W.1 before this court. Though it is the contention of the defendant that
P.W.1 and defendant No.7 are not having any land in Sy.No.207, the evidence of C.W.1 shows that they are having land in Sy.No.204. From the evidence of C.W.1, it is clearly apparent that it is M. Parshuramulu who is having land in Sy.No.204 but not M. Veeraswamy ( father of P.W.1 and
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defendant No.7). Thus from the evidence of C.W.1 it is evident that the revenue officials have issued Ex.A2 which is rythu pass book to M.
Veerawamy in which it was mentioned tht Veeraswamy was having land to an extent of Ac.0-33 gts., in suit Sy.No.207. It further reveals that after entering into the alleged sale agreement with P.W.1 and defendant
No.7, D.W.1 was served with a copy of legal notice dt: 21-9-2007 issued from the office of T. Sadasivudu, Advocate, stating that one M. Thirumala
Devi and M. Sridhar are the owners of land in Sy.No.207 of Kazipet Jagir.
19.Whereas D.W.1 in his written statement never pleaded that through the legal notice copy dt: 21-9-2007, he came to know that M.
Thirumala Devi and Sridhar who are residents of Darga Kazipet were the owners of the land in Sy.No.207 i.e., suit survey number. D.W.1 did not choose to file the alleged legal notice dt: 21-9-2007 which is said to have been received by him. Moreover there is no documentary evidence on behalf of D.W.1 to prove that Thirumala Devi and Sridhar are the owners of land in Sy.No.207. Ex.A7 further reveals that on receipt of the alleged legal notice dt: 21-9-2007 D.W.1 approached P.W.1 and defendant No.7 and questioned about the dispute to which P.W.1 and defendant No.7 promised to settle the issue as such D.W.1 repeated the granted time for settlement of the dispute. Ex.A7 further reveals that P.W.1 and defendant
No.7 had signed the reply notice to D.W.1 from the office of N. Mahathma and G. Srinivas advocates in which they have mentioned that the property in respect of which the sale agreement was entered on 21-5-2007 is situated in Sy.No.204 of Kazipet jagir village. Whereas P.W.1 in his plaint and as well as in his evidence before this court, had strongly denied that he and defendant NO.7 never give any reply or instructions to Mahathma and Srinivas Advocates to give any reply, as alleged by D.W.1.
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20.As P.W.1 is strongly denying the issuing of reply notice by them, through the above said advocates, then the burden shifts upon
D.W.1 to prove that as per the alleged reply notice served on him, he came to know that the property of his alleged vendor is situated in Sy.No.
204. D.W.1 not only failed to file the alleged reply notice, which is said to have been got issued by P.W.1 and defendant NO.7, he also failed to file any document before this court to show that P.W.1 and defendant No.7 are having land in Sy.No.204 but not in Sy.No.207 which is suit survey number. It is the main contention of the defendant counsel that as per
Ex.A2 which is rythu pass book in the name of M. Veeraswamy, the survey number 204 is corrected as 207. The defendant counsel had also filed the petition before this court vide I.A.No. 444/2014 praying the court to summon the Tahasildhar, Hanamkonda to appear before this court along with the concerned register to depose with regard to Ex.A2 i.e., to ascertain whether the survey number mentioned by them is 204 or 207.
The said petition was allowed by this court as such one P. Raj Kumar,
Tahasildar, Hanamkonda appeared before this court on the receipt of summons and he is examined as C.W.1 in the present case.
21.The evidence of C.W.1 shows that Ex.A2 is pass book issued to
Veeraswamy by revenue officials. P.W.1 in his cross examination admitted that there is over writing in Sy.No.Ex.A2. However he had denied that it is he who had altered Sy.No.204 into Sy.No.207 in Ex.A2 to make wrong claim. His evidence shows that the corrections in Ex.A2 are not initialled by revenue authorities and it was also not mentioned in Ex.A6 or A9 about the corrections in Ex.A2. As per Ex.A2 which is rythu pass book out of
Ac.1-26 gts., Veeraswamy was in possession of Ac.0-33 gts., as claimed by P.W.1. However as the dispute is with regard to alteration of Sy.No.
204 as 207 in Ex.A2, the evidence of C.W.1 becomes crucial for
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consideration. The evidence of C.W.1 shows that as per Ex.A2, survey number was mentioned as 207 which appears to have been corrected and there is no initial at that correction. According to C.W.1, the revenue officials would generally put their initial at the corrections made by them in the revenue records. The evidence of C.W.1 clearly reveals that as per the register produced by him i.e., Ex.X1 (CC of form – 1A register) the name of M. Parshuramulu is shown as pattedar in respect of Sy.NO.204.
The names of M. Bhadraiah, Thirupathaiah, Babu Rao, Sudharshan Rao were shown as pattedar in respect of Sy.No.207 and so also in possessor column. His evidence further reveals that the name of Veeraswamy is not mentioned in any of the column in form No. 1-A register i.e., Ex.X1 in respect of Sy.No.204. Even Ex.X1 produced by C.W.1 do not reveal that M.
Thirumala Devi and M. Sridhar are the pattedars of land in Sy.NO.207 as contended by defendant No.1 in Ex.A7 reply notice.
22.Thus it is evident from the evidence of C.W.1 that M.
Veeraswamy was not having any land in Sy.No.204. Hence the contention of defendant that father of P.W.1 namely Veeraswamy was having land in
Sy.No.204, but not in Sy.No.207 and P.W.1 had made material alterations of Sy.No.204 as 207 appears to be quite unsustainable. C.W.1 had also produced certified copy of Kasra Pahani for the year 1954-55 which reveals the names of pattedar in respect of Sy.No.200 to 204, but it is not in respect of Sy.No.207 i.e., the suit survey number. Though Ex.A2 reveals that M. Veeraswamy was having land to an extent of Ac.0-33 gts., in suit survey No. 207 his name is not reflected as pattedar in Ex.X1. No document is filed on behalf of P.W.1 to show that how much extent of land out of Ac.0-33gts., belonging to M. Veeraswamy was acquired by the government for formation of 100 feet road. As per Ex.A3 & A4 proceedings issued by Vice Chairman KUDA dt: 5-8-1992 and 11-5-1993 respectively
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an extent of 1331 Sq. yards was acquired from M. Veeraswamy for the compensation amount of Rs.53,240/- and an extent of 2057 Sq yards from
M. Parshuramulu for compensation of RS.82,280/-. Though Ex.A3 & A4 reveals the extent of land which is said to have been acquired from M.
Veeraswamy and Parshuramulu, they do not reveal in which survey number the said land was acquired by KUDA officials. As per Ex.A3 it is evident that out of the total compensation amount payable to
Veeraswamy, Parshuramulu and one M. Saraiah 25% was paid under
Ex.A3 proceedings and the remaining 25% was paid to them under Ex.A4 proceedings.
23.As per the evidence of C.W.1, Ex.A2 was issued by their revenue officials prior to 1986 and the entries appearing in it were made by revenue officials and it contains the signatures of his predecessor.
C.W.1 further deposed that as per Ex.A2 in the second page, digit ‘0’ was corrected as ‘1’ and it is appearing as Ac.1-26 gts. However he had admitted that as per their revenue records and as well as in Ex.A2, the extent of land covered in Sy.No.207 is Ac.1-26 gts. He further admitted that as per the documents produced by him, the old survey number of the suit survey number is 128/Aa. It is the case of the plaintiff/P.W.1 that out of Ac.1-26 gts., partition was effected in between M. Veeraswamy and his brother Kajaiah as such each of them got Ac.0-33 gts., of land towards their share. Even Ex.A2 reveals that out of Ac.1-26 gts., in Sy.No.207, the land which is shown to be in possession of Veeraswamy is Ac.0-33gts.
C.W.1 denied his knowledge about acquisition of land in Sy.No.207 by the government for formation of 100 feet road. He further deposed that there is no entry in revenue records brought by him relating to the acquisition of land by government for formation of road. He further deposed that he do not have personal knowledge relating to the fact that land in Sy.No.207
O.S. 762/ 2010 17
and other surrounding survey numbers became abadi at present or not.
Then in such case as Ex.A3 & A4 also do not reveal the survey number in which the land was acquired by the government for formation of 100 feet road, the burden is upon P.W.1 to prove that the extent of land acquired by government in Ex.A3 & A4 is out of Sy.No.207 only. P.W.1 in his cross examination deposed that he had not filed any document showing the area effected by the road and the area which is in his possession and the area which they have sold out to third parties. He further deposed that the details of his alienation are not mentioned in the plaint and at present he cannot file any more documents with regard to the suit property. In support of his case, P.W.1 had filed Ex.A5 which is notice relating to demarcation of land in Sy.No.207. As per Ex.A5 the office of Survey and
Land records, Warangal had issued notice to N. Sudharshan Rao i.e., defendant No.3 and P.W.1, one M. Mahinder, K. Ravi, N. Mallikarjun by stating that as per the application submitted by Sudhakar i.e., defendant
NO.3 on 5-3-2007 at 10-00 a.m., the Deputy Inspector of Survey,
Warangal fixed the boundaries in respect of Sy.No.207, as per the plan enclosed to Ex.A5, the land in Sy.No.207 was bifurcated into three parts as 207/1, 207/2, 207/3. The land in Sy.No.207/2 is shown as Ac.0-28 gts., and it is shown as road. The land in Sy.No.207/3 is shown as 15.67 Sq.
yards.
24.It is the case of plaintiff/P.W.1 that the total extent of Ac.0-33 gts., was acquired by KUDA officials for formation of road out of Ac.1-26 gts, in Sy.No.207, as such they are left with Ac.0-28 gts., of land in suit
Sy.No.207. Out of which Ac.0-17 ½ gts., of land in suit Sy.No. is in possession and enjoyment of P.W.1 & defendant No.7. Where Ac.0-10 ½ gts. is in occupation and enjoyment of defendants No.4 to 6. Whereas plan enclosed to Ex.A5 (notice) reveals that only Ac.0-28 gts., of land in
O.S. 762/ 2010 18
Sy.No.207 is shown as road and it is demarcated as Sy.No.207/2. Then in such case the burden shifts upon P.W.1 to prove that it is not Ac.0-28 gts., of land which was acquired by the government in Sy.No. 207 for formation of road, but it is Ac.0-33 gts., of land as contended by him. There is no documentary evidence on behalf of P.W.1 to prove that total Ac.0-33 gts., of land in Sy.No.207 was acquired by KUDA officials for formation of road.
25.It is the case of P.W.1 that he and defendant No.7 together executed registered sale cum GPA in favour of D.W.1. Even though D.W.1 admitted about the alleged agreement of sale, the said document is not filed either by P.W.1 or by D.W.1 before this court. D.W.1 on one hand denied that P.W.1 and defendant NO.7 are not having any land in
Sy.NO.207 and on the other hand contended that having satisified with statement of P.W.1 and defendant No.7, he entered into agreement of sale and at present he is not in possession of agreement of sale, as he had already sold away Ac.0-06 gts., of land. According to D.W.1 it is defendant No.3, who had executed GPA in his favour. The alleged GPA of
D.W.1 is not filed by him before this court. Moreover he did not choose to examine defendant No.3 as witness on his behalf. There is no documentary evidence on behalf of D.W.1 to prove that he had sold away
Ac.0-06 gts., of land to others.
26.As per the evidence of D.W.1, the land covered under GPA is in two bits, but he failed to state their extents. Though he deposed about the boundaries in respect of those two bits, the same is not much helpful to the case of D.W.1, as he failed to state the extent of land and also the survey number for which he was given GPA by defendant No.3. From the evidence of D.W.1, it is seen that as P.W.1 and defendant No.7 failed to produce any document to prove their ownership and possession in
Sy.No.207 as such he was of the opinion that they do not held any land in
O.S. 762/ 2010 19
that survey number. However from the evidence of C.W.1, it is evident that father of P.W.1 and defendant NO.7 were owning land in Sy.No.207.
But the same is not sufficient for considering the claim of plaintiff/P.W.1 in respect of suit schedule property, because having filed the suit for equitable relief of permanent injunction, the burden is always upon the plaintiff/P.W.1 to prove that he is in possession of the suit property within the specified boundaries (as mentioned in the plaint schedule) as on the date of filing of the suit. During the cross examination of D.W.1, he admitted that location of land to an extent of 204 Sq. yard is as per the rough sketch of suit land shown in part – 1 relating to Sy.No.207. P.W.1 had filed the rough sketch of the suit land it is enclosed to the plaint in which he had shown the suit property as 204 S. yards within the given boundaries. But there is no documentary evidence on his behalf to prove that to show that the suit property is situated within the given boundaries as mentioned in the plaint schedule.
27.D.W.1 during his cross examination deposed that by seeing the rough sketch he cannot say the exact location of Ac.0-06 gts., of land in
Sy.No.207 sold by him as the same is not authenticated map. According to him the map prepared by land and Survey departments, is an authenticated one. Then in such case the burden shifts upon the plaintiff/P.W.1 to prove that the rough sketch filed by him is in consonance with the extent of land which is available on the spot. In the present case plaintiff/P.W.1 had examined one M. Yadagiri as P.W.2 on his behalf.
Though P.W.2 deposed that on the death of Veeraswamy, P.W.1 and defendant No.7 succeeded to their part of land, his evidence do not reveal about the exact extent of land succeeded by P.W.1 and defendant No.7 after the acquisition of land by KUDA officials for formation of 100 feet road in suit survey number. The evidence of P.W.2 reveals that he was one
O.S. 762/ 2010 20
of the mediator for disputes in between P.W.1, defendant No.7 and defendant No.4 which took place in May, 2007 and at that time the mediators have reduced the terms and conditions of award on 20-5-2007 to which he is fifth signatory.
28.However the said award passed by the mediators dt: 20-5- 2007 is not produced before this court. During the cross examination
P.W.2 deposed that there is no land in the name of P.w.1. According to him M. Veeraswamy is having two sons i.e., P.W.1 and defendant No.7.
Veeraiah is also having two daughters. Even P.W.1 in his cross examination deposed that they are two brothers and three sisters and all of them are alive. The evidence of P.W.1 shows that there is no document on his behalf to show the partition among the family members. Even P.W.2 deposed that he had not seen any document relating to their partition.
According to P.W.1, Ac.0- 17 ½ gts., in Sy.No. 128/A is in the name of
Veeraswamy and his brother Kajaiah. P.W.2 denied his knowledge about the share got by the children of Veeraiah from Ac.0-17 ½ gts., of land. As per the evidence of P.W.1, his father was no more as on the date of filing of the suit and his mother died in the year 2005. As the evidence of P.W.1 shows that they are two brothers and three sisters to his parents, then the burden lies upon P.W.1 to prove that after the death of his parents, he along with his brother alone succeeded to the share of Veeraswamy in
Sy.No.207 by excluding the share of his three sisters. Though P.W.1 deposed that after leaving the area of defendant No.7, he is having 204 S.
yards on western side of 100 feet road and 80.5 Sq. yards on eastern side of 100 feet road, there is no document on record to show that the partition was effected in between P.W.1 and defendant No.7 in respect of Ac.0-17 ½ gts., of land and in that alleged partition the suit schedule property fell to the share of P.W.1.
O.S. 762/ 2010 21
29.According to PW.1, he and his brother i.e., defendant No.7 together executed registered sale cum GPA in favour of D.W.1, but he did not file the same before this court. According to him the GPA in favour of
D.W.1 was not cancelled by way of registered deed. It is the case of plaintiff/P.W.1 that as D.W.1 failed to pay the entire sale consideration as per the conditions stipulated in the agreement of sale deed dt: 21-5-2007 and as he failed to comply the demand in Ex.A6 legal notice, the alleged agreement in between them is deemed to have been cancelled. Even though D.W.1 in his cross examination deposed that he had paid
Rs.18,00,000/- to P.W.1 and defendant No.7, by way of installments within the period of 2 years, there is no documentary evidence to that effect and in the absence of the alleged agreement of sale dt 21-5-2007
before this court it cannot be held that whether any valid title passed to
D.W.1 in respect of Ac.0-06 gts.,of land in Sy.No.207 or not. P.W.1 in his cross examination deposed that the extent of right of himself and his brother i.e., defendant NO.7 were not specifically mentioned in the GPA in favour of D.W.1. His evidence clearly shows that no property is standing in his name in Ex.A1 to A9.
30.The evidence of P.W.1 itself clearly shows that the property in suit survey number stands in the name of his father. His evidence further shows that even in survey report no property was shown on his name.
However from his cross examination it is evident that basing on the land acquisition proceedings i.e., Ex.A3 & A4 (award and pass book) he had prepared his plaint and chief affidavit. The documents filed by P.W.1 are not much helpful to prove his claim in respect of suit property, as they do not reveal that after the death of Veeraswamy, it is only P.W.1 and defendant No.7 who have succeeded to Ac.0-17 ½ gts.,of land, after excluding the land which was acquired by KUDA officials for formation of
O.S. 762/ 2010 22
100 feet road. Coming to the evidence of P.W.2, he deposed that P.W.1 and his brother defendant No.7 sold away Ac.0-17 ½ gts., of land to D.W.1 as such D.W.1 was made party in the present suit. According to him, there is no vacant land in suit survey number as the entire land was sold away. His evidence further shows that P.W.1 filed this suit for Ac.0-07 gts., of land, he failed to state the boundaries of land admeasuring Ac.0- 17 ½ gts. Thus from his evidence it is clearly apparent that he is not aware of the fact of the present case and as per his evidence there is no land in the name of P.W.1 as on the date of filing of the suit as the entire land was sold away by P.W.1 and defendant No.7 to D.W.1. The evidence of P.W.2 do not lend any support to the case of P.W.1 in respect of his claim over the suit property. The evidence of P.W.2 reveals that approximately Ac.0-29 gts., of land in Sy.No.128/A was acquired for 100 feet road. Hence the land existing in the name of Veeraswamy and his brother Kajaiah was Ac.0-28 gts. According to P.W.2, there were dispute between Veeraswamy and his brother Kajaiah after the land was given to government for road. Hence the documents were executed before the elders at that time, by Veeraswamy and Kajaiah and he stood as witness for those documents. Though he deposed that those documents were not filed in this case, there is no document much less the award passed by the mediators in respect of the alleged dispute between Veeraiah and his brother Kajaiah, in respect of Ac.0-28 gts., of land in Sy.No.207. Hence the evidence of P.W2 is not much helpful to the case of plaintiff/P.W.1.
31. Coming to the evidence of P.W.1, though he deposed that he had filed the documents to show the ownership over the suit property, he further deposed that he had not filed any document to show his ownership over the property described in the sketch map annexed to the plaint.
According to him before preparation of the sketch map, the suit property
O.S. 762/ 2010 23
was measured on the field. He further deposed that the measurements are not mentioned in the said sketch map. According to P.W.1, after working out calculations , he had mentioned the extent of suit property as 204 Sq.
yards. However there is no sufficient oral or documentary evidence on behalf of P.W.1 to prove that the suit property was measured on the field and at that time the extent of suit property is calculated as 204 Sq. yards on the spot. P.W.1 himself deposed that he had not filed any document to show his possession over the suit property. Though he deposed that Ac0- 11 gts., of land belonging to him was effected in 100 feet road widening likewise Ac.0-17 gts., of land of his brother was effected, there is no sufficient documentary evidence to that effect, as Ex.A3 and A4 do not reveal the survey number in which the land of Veeraswamy and
Parshuramulu was acquired.
32.According to P.W.1 out of Ac.0-28 gts., he got Ac.0- 17 ½ gts., towards his share, but there is no documentary proof to that effect. As per the evidence of P.W.1, defendant No.7 is his own brother and he do not know whether he had sold away his share in the suit survey number.
In the absence of any oral or documentary evidence on behalf of P.W.1, to show that how much extent of land fell to the share of P.W.1 and defendant No.7 in Sy.No.207, it cannot be held that the suit schedule property to an extent of 204 Sq. yards fell to the share of P.W.1 and he is in exclusive possession and enjoyment of the same. Though D.W.1 admitted that location of land to an extent of 204 Sq. yards is as per the rough sketch of the suit land, shown to him i.e., in part -1, his evidence further reveals that he cannot say the exact location of Sy.No.204 & 207.
P.W.1 denied his knowledge about the fact that whether page – 2 in Ex.A5 and the measurements contained in it are relating to Sy.No.207 or not, after formation of road. He further deposed that seeing the page – 3 of
O.S. 762/ 2010 24
Ex.A5, he had found the name of defendant No.3 as owner and pattedar of
Ac.0-06 gts., of land in Sy.No.207. But D.W.1 failed to file the alleged revenue records before this court to show that defendant No.3 is the owner and pattedar of Ac.0-06 gts., of land in Sy.No. 207. Moreover he himself admitted that the revenue records relating to defendant No.3 is not filed by him in his case. Though he deposed that he can file them, no effort is made on his behalf to produce the same before this court. D.W.1 in his cross examination further admitted that the fact relating to verification of revenue records and not finding the name of P.W.1 and defendant No.7 were not pleaded by him in his written statement.
33. He also admitted that he had not furnished any documents which were demanded in Ex.A9. Though it is contended by the defendant counsel that Sy.No.204 is altered as Sy.No.207 in Ex.A2, D.W.1 in his cross examination deposed that he had not perused Ex.A2 as such he cannot say whether it relates to Sy.No.207 or 204. He had also denied his knowledge that the total extent of land in Sy.No.207 is Ac.1-26 gts., out of which Veeraswamy and his brother Kajaiah got equal shares as per the partition which took place between them about 50 years back. He also denied his knowledge about the extent of land acquired by government for formation of road from Khajaiah and Veeraswamy. It is the case of P.W.1 that as required by D.W.1, he and defendant No.7 with defendant No.3 have executed two agreement of sale cum GPA in the first week of March, 2008 in the name of Velpula Rajamani and Dasari Sammakka. D.W.1 during his cross examination had denied the same. According to P.W.1, the above persons namely V. Rajamani and Sammakka had sold their lands to
G. Venkanna in 2008 to an extent of 317.5 Sq. yards and he is disputing those transactions. There is no documentary evidence on record to show that how much extent of land was sold away by P.W.1 and defendants. No.
O.S. 762/ 2010 25
7 & 3 in favour of V. Rajamani and D. Sammakka. It is the case of P.w.1 that excluding the land for which GPA was executed in favour of Rajamani and Sammakka, remaining extent of land in Sy.No.207 is 204 Sq. yards and the same is in possession and enjoyment of P.W.1 alone. The name of
G. Venkanna is shown as southern side boundary owner of the suit schedule property herein. If really Rajamani and Sammakka had sold away their land to an extent of 317.5 Sq. yards to the said Venkanna then P.W.1 ought to have examined the said Venkanna as a witness in the present case, to prove that after the alleged alienation made by P.W1 and defendant No.7 with the help of defendant NO.3, P.W.1 is in possession of 204 Sq. yards in suit survey number ie., suit property. P.W.1 did not choose to examine any of the neighbouring boundary owners to prove his possession over the suit property as on the date of filing of the suit.
34.On the other hand it is the case of D.W.1 that at present, there is no land in the name of P.W.1 as the same was already registered in the name of defendant No.8. According to D.W.1, defendant no.3 and others had executed registered sale deed in favour of defendant No.8 for about 204 Sq. yards about of 4 or five years back and that transaction took place in his presence. According to D.W.1 at his instance the sale deed was executed in favour of defendant No.8 by defendant No.3 and others. Defendants NO.2 to 6 and defendant No.8 remained exparte in the present suit. D.W.1 during his evidence failed to file the alleged registered sale deed in the name of defendant No.8 in respect of suit property i.e., 204 Sq. yards of land in suit survey number. It is the contention of plaintiff counsel that the land held by defendant No.8 is no way concerned with the plaint schedule property. According to D.W.1, the boundaries of the land purchased by defendant No.8 are towards east : 100 feet road, west : nala north : land of Sudharshan (D3) and others, south : land of D3 and
O.S. 762/ 2010 26
others. Though eastern and western boundaries as deposed by D.W.1 tallies with the boundaries in the plaint schedule, Northern and southern boundaries as deposed by D.W.1 varies with the boundaries as contained in plaint schedule.
35.Though D.W.1 failed to file the alleged registered sale deed of defendant No.8 in respect of 204 Sq. yards of land in Sy.No.207, the same itself do not entitle the plaintiff/P.W.1 for the relief of permanent injunction against the defendants in respect of suit property, because the plaintiff/P.W.1 has to prove his case independently without depending on the weakness of the case of defendants. In the present case there is no sufficient oral or documentary evidence on behalf of P.W.1 to prove that after the death of his father Veeraswamy, the land to an extent of Ac.0-17 ½ gts., was succeeded by him and by his brother defendant No.7 by excluding their sisters. Hence, both of them together had held alienation with the help of defendant No.3 and thereafter by excluding the share of defendant No.7, the plaint schedule property fell to the share of P.W.1 and he is in exclusive possession and enjoyment of the same. Even according to P.W.1, he had not filed any documents to show his possession over the suit property. Then in such case having failed to prove his possession over the suit property by plaintiff/P.W.1 as on the date of filing of the suit, he is not entitled for the relief of permanent injunction as prayed for.
Accordingly issue No.1 is answered in favour of defendants and as against the plaintiff.
36.Issue No.2 : To what relief?
In the result, this suit is dismissed with costs.
(Dictated to the Personal Assistant, after transcription, corrected and
pronounced by me in the open court on this the 27th day of November, 2015)
O.S. 762/ 2010 27
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS: FOR DEFENDANT : P.W.1 – M. RajamouliD.W.1 T. Pradeep Reddy P.W.2 – M. Yadagiri
FOR COURT
C.W.1 P. Raj Kumar
EXHIBITS MARKED
FOR PLAINTIFFS : Ex.A1 : CC of pahani for the year 1979-80 in respect of Sy.No.128/1 Ex.A2 : Pass book relating to Sy.No. 207 Ex.A3 : Land Acquisition award proceedings dt: 5-8-92 Ex.A4 : Proceedings dt; 11-5-1993 Ex.A5 : Notice relating to demarcation of land in Sy.No.207 Ex.A6 : Office copy of legal notice dt: 27-1-2009 Ex.A7 : Reply Notice Ex.A8 : Envelope cover addressed to counsel for P.W.1 Ex.A9 : Office copy of rejoinder for reply notice vide Ex.A7. FOR DEFENDANT : Nil. FOR COURT : Ex.X1 : CC of form-1A register (original produced, compared and returned to the witness) Ex.X2 : CC of kasra Pahani for the period 1954-55
II-ADDL. JUNIOR CIVIL JUDGE,
WARANGAL.