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Judgment in OS 183/2012 /Mahila Court/VSP
IN THE COURT OF VI ADDITIONAL DISTRICT JUDGE, VISAKHAPATNAM.
Present: - Sri. V.V.Seshu Babu VI Additional District Judge, Visakhapatnam.
Friday, the 21st day of December, 2018.
Original Suit No.183/2012
Mr. Buddha Maheswara Rao, S/o late Appalanaidu garu Hindu, aged 64 years, retired laison officer, Station Bank of India, R/a D.No.1-117-7, MIG 57/12, Sector 12 MVP Colony, Visakhapatnam – 530 017 … Plaintif
Versus
1. Smt. Buddha Indira @ Tulasi Parvathi, wife of late Dr. Satyanarayana, Hindu, aged about 48 years, Housewife, R/a D.No.14-6-39, one way traffic down, Gavarapalem, Anakapalli, Alternative address D.No.14-8-22, c/o Malla Appala Naidu, Reddy Adinarayana Street, Gavarapalem, Anakapalli alternative address C/o Uma Bharati Book Center, 28-16-24, Surya Bagh, Visakhapatnam – 530 002.
2. Mr. Buddha Raghuram, S/o late Dr. Satyanarayana, Hindu, aged about 30 years, employee Satyam Mahendra, R/a Flat No.408, Cyber Towers, Plot Number 417, Ayyappa Society, near SGR constructions, beside Godavari Men’s Hostel, Madapur, Hyderabad – 500 081 alternate address C/o Malla Appala Naidu, 14-8-22, Reddy Adinarayana Street, Gavarapalem, Ankapalli.
3. Mr. Malla Appalanaidu @ Bujji, S/o late Rama Rao, Hindu, aged about 40 years, business,R/aD.No.14-8-22,Reddy Adinarayana Street, Gavarapalem, Ankapalli.
4. Mr. Karri Divakar Rao, Father’s name not known to the plaintiff, Hindu, aged about 60 years, retired Teacher, R/a D.No.14-8-22, Reddy Adinarayana Street, Gavarapalem, Ankapalli.
… Defendants
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Judgment in OS 183/2012 /Mahila Court/VSP
This suit coming on 01.11.2018 for final hearing before me in the presence of Sri. Lanka Jagannadham, Advocate for plaintiff and Sri. M.
Ramdas Advocate for D1 & D2, defendants no.3 & 4 having remained ex- parte, and having gone through the material available on the record, this court delivered the following:
J U D G M E N T
01.The suit is filed for eviction and for consequential injunction restraining the defendants from making any constructions or alterations and also from interfering with the plaintiff peaceful possession and enjoyment over the suit schedule property including obstructing plaintiff to draw water from the bore well, situated in the northeast corner of the suit schedule property and also for damages for use and occupation of the property till vacant possession of the same is delivered to plaintiff.
02.The brief facts of the plaint are that one Late Buddha Dr.
Satyanarayana is the younger brother of the plaintiff that plaintiff is the absolute owner of the 594 sq.yrds of the property having got the same in allotment from VUDA, Visakhapatnam vide proceedings dt.18.10.1980 having made an application for the same on 30.06.1981. Ever since the same, the plaintiff is in possession and enjoyment of the property. At first plaintiff constructed ground floor vide BA.1059/1981-G2 dt.13.10.1981 and later constructed the first floor vide BA.No.913/1994ACP-II division no.23 dt.06.06.1994 and residing therein with family members. The ground and 1st floor was assessed to property tax and water tax, besides service connections to the ground floor in 1981-82 and to the 1st floor in 1994-95.
Plaintiff dug a bore well in the north-east corner of 594 sq.yrds and installed submersible pump to bailout water for usage in the constructed buildings
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Judgment in OS 183/2012 /Mahila Court/VSP and for gardening the plants. D1 is the sister-in-law of plaintiff and wife of late Buddha Narayana and D2 is her son. D3 is the younger brother of D1 and D4 is the sister’s husband of D1. Husband of D1 died on 28.08.1994 at
Hyderabad and he was a medical practitioner and was residing at D.No.28- 16-24, Suryabagh, opp. Commissioner-ate of Police, Visakhapatnam. He was residing in the ancestral house at Suryabagh and it is yet to be partitioned.
The plaintiff constructed compound wall on all the four sides of the 594 sq.yrds in 1981-82 and constructed building on the southern portion of 594 sq.yrds. The D1 created some documents and trying to pressurize plaintiff to part with suit schedule property for which he has not given any voluntary concerned with free will. D1 to D4 came to the house of plaintiff and demanded to deliver the suit schedule property for which he refused to deliver the same on 28.04.2012 and asked them to place the matter before caste elders. The defendants have demolish the north western corner portion of the compound wall in a high handed manner and forcibly arranged a gate and at that time plaintiffs took photographs of the same. The defendants have removed banana fruit bearing plants, Dabba(citrus plants) two teak trees and flower garden. Plaintiff presented a complaint to the
Inspector of III town police station and it was not entertain on the ground of civil dispute who advised the plaintiff to approach civil court. The photos taken by the plaintiff it reflects the high handed acts of the plaintiff. The
House of plaintiff faces south and the entry into the same was located in Plot number MIG-1-57/12 from southern side road. There is also a small gate in south-western portion of the compound wall of the MIG-1-57/12; hence, the suit.
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Judgment in OS 183/2012 /Mahila Court/VSP
03.D1 filed written statement and it is adopted by D2. The brief averment of the written statement are that the suit is not maintainable either under law or facts. Plaintiff is put to strict proof of all the averments made in the plaint except those are admitted. The plaintiff is not entitled for any of the reliefs as prayed for. Husband of D1 and plaintiff are natural brothers and suit is filed by suppressing the material facts to make a wrongful gain and cause wrongful loss to the defendants. Buddha Jaganadha
Rao, Buddha Rama Rao and Buddha Malikarjuna Rao are brothers of plaintiff and husband of D1. Mother of plaintiff was alive by the time husband of D1 died. The correct name of D1 is Buddha Tulasi parvathi @ Indira and D2
Buddha Ragahavendra Rama rao but not raghuram. Husband of D1 and plaintiff had very cordial relationship till the death of husband of D1. Both the brothers decided to purchase one plot in the name of plaintiff, when
VUDA offered plots in the year 1981 and both of them contributed amounts for the purchase of 594 sq.yrds. As per their understanding plot was purchased in the name of plaintiff and husband of D1 contributed
Rs.26,000/- and also Rs.2,000/- for the registration. Immediately after purchase the plot was divided in two parts to enable them for constructions of houses in the respective portions. Souther side portion felt the share of plaintiff and northern one to the husband of D1. As the measurement are unever for the sake of Vastu both the brothers decided to leave a strip of land to an extent 74 sq.yrds on the south-west corner of the property that fell to the share of plaintiff and then only the plot was made into two parts of each 260 sq.yrds. The brothers have taken respective portions of the plot and in possession of the same as absolute owners. Compound wall was constructed on all the four sides with the equal contribution of amounts by both the brothers. The plaintiff arranged a gate on the southern side where
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Judgment in OS 183/2012 /Mahila Court/VSP as defendants gate is on the western side. Shed was also constructed on south-west corner by the husband of D1 in his portion and separating wall was also constructed in between the portions of plaintiff and husband of D1.
The plaintiff being a bank employee wanted to construct a building in his portion by availing loan on the entire property as the total plot is standing in the name of plaintiff, for which husband of D1 gave the consent. Then plaintiff during 1981-82 constructed a house in his portion by obtaining necessary permissions. The bore well that was dug in the portion of husband of D1 is being utilized by plaintiff with the permission of husband of D1. The plaintiff never dug the bore well nor installed submersible motor as contended. Since the water is being consumed by plaintiff he has to pay the power charges. Unfortunately after the death of husband of D1, plaintiff given a go bye to the understanding and started asserting rights. There upon mediation was arranged in the presence of elders on 10.09.1994 and plaintiff executed the documents in conformity with the understanding and also admitting how the plot was purchased and how he constructed the house with bank loan and etc. It was scribed by D4 and he has nothing to do with the suit dispute and unnecessarily dragged into the litigation. Plaintiff executed the same voluntarily on his behalf and behalf of his minor son.
Suppressing all the facts the suit is filed to make a wrongful gain. The D1 and D2 not raised any construction in their portions. However a small shed was constructed. The plaintiff entertained correspondence with husband of
D1 by writing post cards and Inland letters admitting the understand regarding the share of the property and expenditure inclined etc. Ever since 10.09.1994 defendants have been enjoying the property. D1 to D3 and another daughter by name Jaya madhuri assessed their portions by paying vacant land tax. D1 and her husband planted banana and coconut trees in
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Judgment in OS 183/2012 /Mahila Court/VSP their portion and enjoyed them. D1 and D2 perfected their title to their portion by adverse possession also. The suit is barred for misjoinder of parties as well as non-joinder of necessary parties. There is no cause of action for the suit. With these pleas requested to dismiss the suit with costs.
04.Plaintiff filed misjoinder to the written statement denying the written statement averments. The plaintiff mortgaged entire plot with the
State Bank of India for housing loan; as such he has no right to execute any document in relation to any part of the property. The document dt.10.09.1994 is inadmissible evidence for want of stamp duty and registration. The plaintiff voluntarily and willingly executed the document and it is a fabricated one. D1 and D2 not raised any shed as contended by them and plaintiff not entered into any correspondence with husband of D1, admitting the division of properties. Husband of D1 never enjoyed any property at any time and plaintiff never drawn the water with the permission of defendants and husband of D1. With these pleas requested the suit decreed as prayed for.
05.Basing on the above pleadings, the following issues are settled for trial:
1. Whether the plaintiff is entitled to claim eviction and possession of the plaint schedule property?
2. Whether the plaintiff is entitled for consequential relief injunction as prayed for?
3. Whether the plaintiff is entitled for future damages as prayed for?
4. Whether the plaintiff is entitled for permanent injunction as prayed for?
5. Whether the suit is liable to be dismissed for non-joinder of necessary parties and misjoinder of parties?
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Judgment in OS 183/2012 /Mahila Court/VSP
6. Whether the 1st defendant and her children have perfected the title for extent of 266 sq.yrds in northern portion of plot MIG-I, 57/12?
7. If so, to what relief?
06.To prove the case of the plaintiff examined himself as PW1 and got marked Ex.A1 to Ex.A25. DW1 to DW3 are examined and Ex.B1 to
Ex.B16 are got marked for D1 and D2.
07.Plaintiff counsel filed written arguments and the case law in book form. The counsel for the D1 & D2 submitted case law and submitted oral arguments.
08.Basing on the pleadings, documents, evidence and arguments the above issues are answered like here under:- 09.Issue Nos.1 & 6:
There are several admitted facts in the case and they are very crucial to decide the suit and they are :-
i)PW1 is having four brothers namely B.Jagannadha Rao, the Eldest
B.Rama of Rao, PW1, husband of D1 by name Dr. B.Satyanarayana and B.
Mrutyunjaya Rao the youngest. Eldest brother and husband of D1 are no more.
ii)The VUDA Sold MIG Plot No.57 in Sector VII MVP Colony, vide its proceedings dated 18.12.1918 in the name of PW1 basing on his application and the plot was registered in his favour on 30.06.1981 in Document
No.4789/1981 in the office of Joint Sub-Registrar, Visakhapatnam and its extent is 594 sq.yards.
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Judgment in OS 183/2012 /Mahila Court/VSP iii)D1/DW1 is the wife of late Dr.B.Satyanarayana, and 2nd defendant is his son.
iv)PW1 is an employee in State Bank of India and that the loan was borrowed to purchase 594 sq.yards. Admittedly, the suit schedule property to an extent of 260 sq.yards is northern portion of 594 sq.yards of the plot purchased by PW1 from VUDA.
v)PW1, to the South of the suit schedule property constructed ground floor and first floor by getting necessary sanctions from the concerned authorities, obtained power connection and residing therein with family.
vi) Husband of DW1 died on 28.08.1994. It is the contention of PW1 that he was pressurized by DW1 to sign on some created documents to part with the part of 594 sq.yards for which PW1 said to have not given consent freely and voluntarily. It means PW1 though given consent , it was not free and voluntary consent. In the evidence of PW1 stated that, the document
dated 10.09.1994 is not voluntarily signed by him; that it is inadmissible in
evidence for want of stamp duty penalty and for registration.
vii) PW1 mortgaged 594 sq.yards of site to the State Bank of India
for a housing loan. It is his contention that he cannot part any extent out of 594 sq.yards in favour of late B.Satyanarayana due to the existence of mortgage.
viii)The compound wall was constructed on all the four sides of 594 sq.yards. It may as it be there.
10.There is no dispute about the registered sale deed standing in the name of PW1 for 594 Sq.yards and also construction of ground and first floors in the Southern part of 594 sq.yards by taking loan, obtaining power connection, getting floors assessed with tax etc,. The only dispute is whether
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Judgment in OS 183/2012 /Mahila Court/VSP the husband of DW1 contributed half the amount for the purchase of 594 sq.yards and allowed the same to be registered in the name of PW1; that partition of the same orally took place in between PW1 and his brother Dr.
B.Satyanarayana in the year 1981, wherein the suit plot was allotted to the share of late Dr. B.Satyanarayana and also whether PW1 voluntarily executed the agreement dated 10.09.1994. Whether the execution of agreement dated 10.09.1994 is fabricated, created and executed by PW1 under coercion or undue influence? If so, PW1 is entitled for the reliefs as asked for. In case PW1 if found to be a person executed the said agreement with free will and consent, the result would be different.
11.Ex.A15 and Ex.B16 are one and the same, but Ex.B16 is the original and it is styled as Kararunama patram dated 10.09.1994. It is the crucial document to decide the rights of PW1 and D1 including D2 over the suit schedule property. The details of the document are like this viz., 1) it was drafted on three stamp papers worth Rs.100/- + Rs.20/- + Rs.20/- and documents are in S.No.15175, 15176, 15177 purchased on 08.09.1994 in the name of DW1; 2) It was scribed by D4 and attested by 1) K.Sanyasi Rao
2) Murtyunjaya Rao 3) Pilla Appala Naidu 4) Malla Sambasiva Rao and 5) B.
Mahalakshmi Naidu; 3) The executant are namely PW1 for himself and also as a guardian of his minor son B.Venkata Suresh. PW1 and his son are mentioned as parties to the 2nd part; 4) A-Schedule property was allotted to
PW1 and B-Schedule property was allotted to DW1 and her children. The boundaries and extents are given for A and B Schedules; 5) There is a
recital to the efect that in 1981, PW1 and his brother who is no
other than husband of DW1 jointly invested the amount and with an
intention to enjoy the property equally and as PW1 happened to be
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Judgment in OS 183/2012 /Mahila Court/VSP employee of Bank, the property in the name of the PW1 only. It is also mentioned that, husband of DW1 expired on 29.08.1994 and as DW1 and her children requested for a document as a proof of purchase of property by brothers jointly, the Ex.B16 was executed in the presence of relatives and well wishers and immediately B-Schedule property was delivered.
There is another recital to the effect that, as PW1 took loan from the Bank and dues are to be cleared fully up to the year 2002, the parties to the 2nd part have to wait till the completion of clearance of dues without causing any inconvenience to PW1 and also stated that DW1 shall not raise any constructions till then.
12.It is also recited that as the husband of DW1 contributed the amounts for the purchase of the property and as PW1 is having love and affection towards the children of his deceased brother, who is husband of
DW1 voluntarily and willingly executed the document in the presence of well wishers, friends and relatives.
13.On the reverse page of first sheet, there is an endorsement of the RDO-cum-Sub-Divisional Magistrate, Visakhapatnam that the document is impounded by collecting Rs.1,64,920/- towards stamp duty and penalty and office seal is also there with date 24.09.2007. It may as it be there.
14.PW1 admitted his signatures are available on Ex.B16 and they are marked as Ex.B1 to Ex.B6. In the plaint pleadings, except stating that
DW1 and others pressurized PW1 and obtained signatures, not whispered on what document, on which date he signed and in what way was
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Judgment in OS 183/2012 /Mahila Court/VSP pressurized. The word pressurized will have several meanings. It is for PW1 to explain what sort of pressure was applied on him to obtain the signatures. So, heavy burden is placed on PW1 to explain all the details which made him to sign on the document without free consent. Except, PW1 no body is examined to establish under what circumstances PW1 put the signatures. In the cross-examination PW1 stated that “I know one M.
Sambasiva Rao of Anakapalli, Municipal Chairman, I know one A.Sanyasi and
Pilla Appla Naidu and I do not know one Budda Mahalakshmi Naidu, Pilla
Appala Naidu is no more now. A.Sanyasi Rao is now aged about 80 years. I do not know if he is bedridden”. PW1 further stated that, I have no enmity with Sanyasirao, Sambasiva Rao, Pilla Appala Naidu and B.Mrutyunjaya Rao” who is his brother whose signatures are available in the agreement. PW1 was confronted with Ex.B16 and then he deposed “the witness adds my signature was forcibly obtained by elders. On the 10th day after completion of ceremonies I came out. The elders were present. They produced a
agreement and obtained Ex.B1 to Ex.B6 signatures in it. I am not
aware of the contents in the said agreement. I know 4 th defendant.
The agreement is in the handwriting of 4 th defendant.” Here, it is important to note that one must have knowledge about the contents of the document atleat to say that, he signed involuntarily and without free consent. In the plaint pleadings, it is clearly mentioned that DW1 pressurized him to part with the suit schedule property and so, he signed without voluntarily and without free consent. It means PW1 is having knowledge that he put the signatures under Ex.B1 to Ex.B6 due to the pressure applied by elders. It is for PW1 to explain what steps has taken to nullify the Ex.B16.
When PW1 admitted that the elders forcibly applied signatures on 10.09.1994, that too after completion of the death ceremonies of husband of
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Judgment in OS 183/2012 /Mahila Court/VSP
DW1 more so, with regard to the suit schedule property, it is for him to explain why the elders and relatives pressurized PW1 alone to execute the document or to give consent for Ex.B16. The elders and well wishers without having any grouse, grudge or enmity against PW1 will not pressurize him to part with his immovable property that was purchased with his self exertions. This goes to show that PW1 is very much aware of the contents of
Ex.B16 and signned in the document voluntarily with free will and consent.
15.For every document which transfer the rights one party to the other, whether movable or immovable consideration is necessary. Even in the gift deeds love and affection is the consideration. There is clear cut recitals in Ex.B16 that husband of DW1 contributed amounts at the time of purchase of 594 sq.yards and there was an agreement in between the brothers to equally distribute the property. Therefore, the passing of consideration for the execution of Ex.B16 is clearly there in the document itself. Of course, the amount of consideration in figures is not mentioned. I am reiterating at the cost of repetition that, till the filing of the suit PW1 not taken steps for the cancellation of Ex.B16 on the ground that it was obtained by coercion or undue influence. Even the the suit is not filed seeking the relief of cancellation of Ex.B16 but filed for eviction of the defendants. As the delivery of possession is mentioned in Ex.B16 probably the stamp duty and penalty was paid at Rs.1,69,920/- to the Government.
When the attestors of the Ex.B16 have no enmity whatsoever against PW1 there is no question of those persons pressurizing PW1 to contribute the signatures under Ex.B1 to Ex.B6 that too without explaining the contents of the document. After going through all these aspects, I am of the emphatic view that PW1 intentionally denying his knowledge about the contents of
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Judgment in OS 183/2012 /Mahila Court/VSP
Ex.B16. Probabilities so far discussed supra would lead to, without hesitation that Ex.B16 is signed by PW1 voluntarily with free will and consent.
16.It is the argument of the plaintiff counsel that PW1 said to have signed Ex.B16 on his behalf and on behalf of his minor son, and when the property in question exclusively belonged to PW1 there is no necessity for him to sign on behalf of his minor son. When the sale deed for 594 sq.yards stands in the name of PW1 there is no question of his son getting any rights over the same. Then it is a moot point for consideration, why PW1 put the signature on behalf of his minor son in Ex.B16?. Probably, if anything happens to PW1 before the year 2002, (which is fixed as the year for execution of regular document by PW1 in favour of DW1, her children regarding B-Schedule property) son of PW1 is the natural heir to the property. There is a possibility that his son may dispute the Ex.B16 in future.
Therefore, only as a precautionary method the signatures of PW1 obtained in
Ex.B16 for himself and also being the father of his minor son. Taking such signatures on behalf of the minor son, is not a ground to draw an inference that the document was obtained by undue influence and coercion.
17.It is the argument of plaintiff’s counsel that, District Collector was alone competent to collect the stamp duty and penalty but not the RDO- cum-Sub-Divisional Magistrate, as such the document is inadmissible in evidence and it cannot be looked into. It is the argument of the DW1 counsel that, this objection was raised by plaintiff’s counsel at the time of marking Ex.B16 and by overruling such objection, it was marked. No revision or appeal is filed by PW1 against the marking of the document. So, arguments at this stage cannot be taken into consideration and on the other
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Judgment in OS 183/2012 /Mahila Court/VSP hand, RDO is also competent to collect stamp duty and penalty. I am of the view that, on the ground of this objection without preferring any revision cannot be considered at this stage. Here, the plaintiff counsel relied upon the following case law reported in:-
18.It is the argument of the plaintiff’s counsel that, no legal notice was issued after the year 2002 seeking the specific performance of the
Ex.B16 by demanding registration. In the counter claim also only, injunction is sought for by DW1 but not demanded the registration of regular sale deed or relinquishment deed as per the terms of Ex.B16. So, it is argued for plaintiff that injunction cannot be granted against true owner and in the absence of relief seeking registration of document, no rights will be accrued to DW1 and her children.
19.The defendants counsel argued that possession was delivered to
DW1 in pursuance of Ex.B16 in the year 1994 itself. This suit is filed nearly 18 years after the Ex.B16. Therefore, DW1 and her children with the help of
Ex.B16 can fight for their rights U/s. 53-A of Transfer of Property Act i.e., part performance.
20.The counsel for the plaintiff relied upon the following citations:
1997(4) ALD 202
Canara Bank and Ors
Vs.
Dist Registrar and Collector, Registration and Stamps Dept. & Ors
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Judgment in OS 183/2012 /Mahila Court/VSP “ Constitution – Provision – Applicability of Article 14 of Constitution of India and Section 73 of Indian Stamp Act, 1899 – Whether amendment incorporated vide Andhra Pradesh Act in Section 73 of Act, which empowers person authorized by Collector to seize and impound instruments, is utlra vires provisions of Act and violative of Article 14 of Constitution? - Held, Section 73 of amended Act and Rules framed by State Government thereunder do not provide any guidelines relating to seizure and impounding of instruments – Provisions of Central Act empower Collector only to impound instruments, which were voluntarily produced or brought in evidence – But no power was conferred to inspect documents in custody of Bank or any other officer to secure duty – A blanket and unguided power was conferred on authorised person vide section 73 of Act- – Power to seize and impound instruments from Banks and power to demand deficit stamp duty from banks without any notice to affected party arbitrary and illegal – Further amendments made by states to Section 73 of Act did not provide for seizure and unless he has reason to believe that instrument was not duly stamped – If collector had reason to believe that particular instrument was not properly stamped, then he can seize and impount instrument and after giving notice, deficit stamp duty can be collected – Now law is well settled that when statute vests unguided and unrestricted power in authority to affect rights of authority in exercise of this power, it would be affected by vice of discrimination since it would leave it open to Authority to discriminate between persons and things similarly situated -Section 73 of amended Act is ultra vires the provisions of the Indian Stamp Act and is violative of Article 14 of the Constitution and strike it down accordingly and all consequential orders passed Under Section 73 of impugned Act are declared to be void and illegal – Petitions Allowed.”
AIR 2005 Supreme Court 186
District Registrar and Collector, Hyderabad and another Appellants
Vs.
Canara Bank Etc “ Stamp Act (2 of 1899), S.73, S.75 (as amended by A.P. Act 17 of 1986) Andhra Pradesh Amendment Act (17 of 1986) R.3-Rules for the collection of duties seemed in the course of inspection under Section 73 of the Indian Stamp Deficitly stamp document – Power of inspection and impounding conferred by A.P. State Amendment – Is violative of principles of natural justice; right to privacy respectively under Arts. 14, 21 and also liable to be vitiated for excessive delegation.”
2018 (5) ALD 396
Sure Ranga Murali Krishna Reddy
Vs.
Sure Yerri Vara Prasada Reddy and Others
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Judgment in OS 183/2012 /Mahila Court/VSP “ Civil Procedure Code 1908 – Order 15 Rule 3 – Inadmissible document – Power of Court to reject – Certified copy of partition deed / Ex.B1 – Original of it not property stamped nor registered and therefore, inadmissible in evidence even for collateral purpose – Objection raised with regard to admissibility of such document – May be considered at any stage of matter, even though it is marked as an exhibit, more particularly, when such marking is given inadvertently and without application of mind – Inspite of prohibition contained in S.36 of Stamp Act, Trial Court has power to exclude Ex.B.1 from evidence – Words ‘an instrument’ in S.36 Stamp Act must have same meaning as that in S.35 thereof, which only deals with original instruments and not copies – And, therefore, S.36 of Stamp Act cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit – Ex.B.1 being a certified copy and not an original benefit cannot be extended to it in any view of the matter – Dismissal of application filed by plaintiff for De-exhibiting certified copy of partition deed marked as exhibit B.1, therefore, not proper – [stamp Act 1899, Sections 33, 36, 61; Registration Act 1908, Section 49]”
I am of the view that the above case law is not applicable to the facts of the present case, because in the above cases the point is whether the persons conferred with power to collect stamp duty and penalty can even go to the banks and impose penalty on the documents on the ground of deficit stamp. Here, it not the case. The defendants themselves produced the document before Sub-Divisional Magistrate and paid deficit stampduty.
21.Plaintiff also relied upon the following case law, by stating that
Defendants ought have filed the suit to declare their rights over the property or for specific performance of contract and on the hand seeking injunction is not maintainable.
Civil Appeal No.8241 of 2009 Supre Court Dt.9/10/2018
(Non-Reportable)
Jharkhand State Housing Board.
Vs.
Didar Singh & Anr.
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Judgment in OS 183/2012 /Mahila Court/VSP “ 12. In the facts of the case the defendant Board by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The
Courts below erred in entertaining the suit for injunction.”
Civil Appeal No.8242 of 2009 Supre Court Dt.9/10/2018
( Non-Reportable )
Jharkhand State Housing Board.
Vs.
DidAnirudh Kumar Sahu & Ors “ 7.We have given our anxious consideration and we are of the considered opinion that the Courts below misconstrued the pleadings and went on a premise that the suit is for declaration of title when the same is for bare injunction and in a way declared the title of the plaintiff. Even
before this Court plaintiff filed the counter and stated that his suit is only for
the relief of injunction. The learned counsel has also submitted that the relief sought is only for injunction. The copy of the plaint filed before us also strengthens the same. The judgment and decree under appeal deserves to be set aside and accordingly appeal is allowed.”
AIR 2012 SC 1727
Maria Margarida Sequeria Fernandes and Ors
Vs.
Erasmo Jack De “ Property-Possession – Trial Court granted injunction in favour of Respondent and same was upheld by High Court in impugned judgment in Civil Revision Application – Hence, present Appeal – Whether judgments of High Court and Trial Court, were liable to be set aside – Held, a possessory suit was good against whole world except, rightful owner – It was not maintainable against true owner – A Court must discharge its statutory functions – whether discretionary or obligatory – according to law in dispensing justice because, it was duty of a Court not only to do justice but also to ensure that justice was being done – Truth was foundation of justice – It must be endeavor of all judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object – Courts must give greater emphasis on veracity of pleadings and documents in order to ascertain truth – Pleadings were foundation of litigation – In pleadings, only necessary and relevant material must be included and unnecessary and irrelevant material must be excluded – Pleadings were given utmost importance in similar systems of adjudication – In Civil cases,
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Judgment in OS 183/2012 /Mahila Court/VSP pleadings were extremely important for ascertaining title and possession of property in question – Wherever pleadings and documents established title to a particular property and possession was in question, it would be for person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession – Court must insist on documentary proof in support of pleadings – If pleadings did not give sufficient details, they would not raise an issue, and Court could reject claim or pass a decree on admission – On vague pleadings, no issue arose – framing of issues was an extremely important stage in a civil trial –
Judges were expected to carefully examine pleadings and documents before
framing of issues in a given case – until pleadings raised a sufficient case, they would not constitute sufficient claim of defence – Court must ensure that pleadings of a case must contain sufficient particulars – Insistence on details reduced ability to put forward a non-existent or false claim or defence – In dealing with a civil case, pleadings title documents and relevant records played a vital role and that would ordinarily decide fact of case – None one could take law in his own hands – It must be endeavour of Court that, if a suit for mandatory injunction was filed, then it was its bounden duty and obligation to critically examine pleadings and documents and pass an order of injunction while taking pragmatic realities including prevalent market rent of similar premises in similar localities inconsideration – It was duty and obligation of Court to at least dispose off application of grant of injunction as expeditiously as possible – Due process of law meant nobody ought to be condemned unheard – Due process of law meant a person in settled possession would not be dispossessed except by due process of law – Due process meant an opportunity for defendant to file pleadings including written statement and documents before Court of law – It did not mean whole trial – Due process of law was satisfied moment rights of parties were adjudicated by a competent Court – False claims and defences were really serious problems with real estate litigation, predominantly because of ever escalating prices of real estate – If pragmatic approach was adopted, then this problem could be minimized to a large extent – Due care, caution, diligence and attention must be bestowed by judicial officers and judges while granting or refusing injunction – In order to grant or refuse injunction, judicial officer or judge must carefully examine entire pleadings and documents with utmost care and seriousness – Court must make serious endeavor to ensure that even handed justice was given to both parties – In a large number of cases, hones litigants suffered and dishonest litigants got undue benefit by grant or refusal of an injunction because Court did not critically examine pleadings and document on record – In present case, if Courts below would have carefully looked into pleadings, documents and had applied principle of grant of mesne profit, then injustice and illegality would not have perpetuated for more than two decades – Respondent did not claim any title to suit property – Appellant had a valid title to property which was clearly proved from pleadings and document on record – Respondent had not been able to establish family arrangement by which this
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Judgment in OS 183/2012 /Mahila Court/VSP house was given to respondent for his residence – Courts below failed to appreciate that premises in question was given by appellant to her brother Respondent as a caretaker – Caretaker held property of principal only on behalf of Principal – Respondent’s suit for injunction against true owner – Appellant was not maintainable, when it was established beyond doubt that respondent was only a caretaker and he ought to have given possession of premises to true owner of suit property on demand – Possession of a servant or agent was that of his master or principal as case may be for all purposes and former could not maintain a suit against latter on basis of such possession – Caretaker, watchman or servant could never acquire interest in property irrespective of his long possession – Caretaker or servant had to give possession forthwith on demand – Courts were not justified in protecting possession of a caretaker, servant or any person who was allowed to live in premises for some time either as a friend, relative, caretaker or as a servant – Impugned judgment of High Court as also of Trial Court, were set aside – Appeal allowed.
AIR 1982 SC 989
Sardar Govindrao Mahadik and Ors
Vs.
Devi Sahai and Ors “ Property – Redemption – Section 53-A of the Transfer of Property Act – What constitutes part performance within meaning of expression in Section 53-A of Act so as to clothe a mortgagee in possession with title of ownership which would defeat suit of erstwhile mortgagor for redemption? - Held, mortgagee has failed to prove that he did any act in furtherance of contract, continued retention of possession being a circumstance of neutral character in facts and circumstances of case and it being further established that mortgagee was not willing to perform his part of contract, it is clear that mortgagee is not entitled to benefit of equitable doctrine of part performance – on conclusions hereby indicated appeal preferred by appellant must be allowed and judgment of High Court has to be set aside and one rendered by trial Court is restored with costs throughout.”
AIR 2008 SC 493
A. Lewis & others Vs. M.T. Ramamurthy & others
Transfer of Property Act,1963-Sec.53-A-Existence of right to claim protection under-Held_ Right to claim protection would not be available if transferee just kept quiet and remained passive without taking effective
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Judgment in OS 183/2012 /Mahila Court/VSP steps-further, he must also perform his part of the contract and convey his willingness.
2018 (5) ALD 408
G. Shyamlal Vs.G. Ishwarji and others “ Specific Relief Act 1963 – Section 34 – Declaration of title –
Entitlement – Plaintiff claiming title to suit property on basis of Ex.A.1, registered sale deed in his favour -Defendants set up plea of nominal nature of sale deed – And therefore, it is for them to prove “nature” of Ex.A.1 sale deed – Defendants not able to discharge burden cast upon them – Combined effect of admissions in written statement, contradictory stands of defendant about consideration and existence of Ex.A.1 sale seed and application for construction etc., is that plaintiff is owner of property – Suit rightly decreed in favour of plaintiff – Appeal dismissed – Evidence Act 1872, Section 34 –
Entries in books of accounts – Cannot by themselves be treated as proof.”
2018 (5) ALD 718
Pusapati Laxmi Narasayamma (died) per LRs.
Vs.
Alamanda Narayana (died) per Lrs. And others “ Specific Relief Act 1963 – Section 34 – Suit for declaration of title – And consequential relief of delivery of possession – Plaintiff claimed to have purchased suit property under registered sale deed from one ‘KB’ -
Defendants also set up their own title, but do not plead manner in which they acquired their right to property – Witnesses examined for defendants admitted that ‘P’, who brought father of defendants 1 and 4 as illatom-son- in-law (who after death of said ‘P’ , inherited property), was employed by ‘KB’ for about 30 years – And later, defendant-1 continued to work for said ‘KB’ - But so called transfer of title from ‘KB’ to ‘P’ was not explained – Nor plea of illatom-son-in-law proved – Defendants thus, could not plead or establish their title to property – A servant, in gratuitous/permissible possession, cannot have any rights in property irrespective of his long stay or occupation – Plaintiff, on other hand, proved her title to property – Her title and possession made out by available document on record – Plaintiff,
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Judgment in OS 183/2012 /Mahila Court/VSP therefore, declared as owner of property – And defendants directed to forthwith vacate and deliver possession of property within 60 days.” “ Limitation Act 1963 – Article 65 – Adverse possession – Perfection of title by – Plea and proof of – Mere long possession of property without required animus, cannot ripen into title – Moreover, neither pleading nor the proof, adequate for coming to conclusion that defendants perfected their title by adverse possession – Possession of defendants was only possession of a caretaker or a watchman of property – And there are no equities in their favour both in view of judgments of Supreme Court in 2012 (5) ALD 41 (SC) and 2012 (4) ALD 1 (SC) and in view of fact that they pleaded adverse possession – Defendants thus, not able to prove their title to property – Facts that they mortgaged property to a Bank etc., will not clothe them with any title as there is no evidence to show what documents were relied upon by Bank for creating mortgage – And also plaintiff was not a part to same.
Evidence Act 1872 – Sections 65 and 120 – Secondary evidence – Admissibility – Certified copy of registered sale deed – Tendered in evidence along with explanation stating that original is lost and is not traced – And marked without any objection from defendants – Once document received in evidence, without any objection about its admissibility, no further argument can be advanced on admissibility – PW.1, being husband of plaintiff, is competent to depose about same.
Transfer of property Act 1882 – Sections 54 and 5 – Registered sale deed ‘sham or nominal nature of document – Determination – Mere fact that after more than three decades of execution of document, witness made a mistake in speaking about manner of payment of balance sale consideration cannot lead to conclusion that entire sale deed is false – Furthermore, once execution of sale deed is proved, onus, as noticed in (2009) 5 SCC 713, moves on to defendant to prove that it was a ‘sham’ transaction – Defendants did not discharge heavy burden thus case upon them – Held, therefore, that Ex.A.1 document is validly proved.”
22.As against the same the argument of the defendants counsel is that, at the time of obtaining Ex.B16 there were no disputes between them and PW1 and only in a precautionary method the said document was obtained. Till PW1 objected for the posession of defendants just before the suit, they have no knowledge about his intentions. In view of the close relationship, they have not time and again requested or demanded PW1 to
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Judgment in OS 183/2012 /Mahila Court/VSP execute regular registered sale deed in their favour. The counsel for the defendants 1 & 2 relied upon the following citations:
Shamrao Suryavanshi and Ors.
Vs.
Pralhad Bhairoba Suryavanshi by Lrs. And Ors “It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part performance of the contract to protect his possession, though he may not able to enforce that right through a suit or action.
In the present case, it is not disputed that the transferee has taken possession over the property in part performance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation.”
Prem Singh and Ors.
Vs.
Birbal And Ors “Limitation is a statute of repose. It ordinarily bars a remedy, but, does not extinguish a right. The only exception to the said rule is to be found in Section 27 of the Limitation Act, 1963 which provides that at the determination of the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. An extinction of right, as contemplated by the provisions of the Limitation Act, prima facie would be attracted in all types of suits.”
Eureka Builders and Ors.
Vs.
Gulabchand And Ors “60) In our considered opinion, whatever so-called rights, title and interest which the original holders derived from the orders of re-grant in 1973 in the suit property in their favour, the same stood extinguished by efflux of time.
61) The reason was that in order to keep such new rights intact and enforceable, the original holders (three PATIL) were under a legal obligation to have filed a suit for claiming a declaration and possession of the suit land and this ought to have been done by them within 12 years from the date of re-grant, i.e., 1973.
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Judgment in OS 183/2012 /Mahila Court/VSP
62) They, however, failed to do so within 12 years and when they actually tried to exercise their rights by filing the suit in 2004 (after 31 years from 1973), by then it was too late to exercise such rights in law. By that time, their rights in the suit land stood extinguished.
63) Section 27 of the Limitation Act deals with extinguishment of right to property. It says that at the determination of the period prescribed in the Act for any person to institute a suit for possession of any property, his right to such property shall be extinguished. Articles 64 and 65 of the Schedule provide 12 years period for filing a suit to claim possession of any immovable property. The period of 12 years prescribed in these two articles is required to be counted from “the date of dispossession” (Article 64) and “when the possession of the defendant becomes adverse to the plaintiff” (Article 65).
After going through the case law relied upon by the both sides, I am of the view that the principle of part performance U/s.53-A of T.P. Act, is availablev to the Defendants 1 & 2 to retain their possession since this plea is only a shield but not sword.
23.PW1 categorically stated that there is a wall in between his property and to the suit schedule property. It is to be observed that, if there is no division of properties between PW1 and his brother, who is husband of
DW1, there is no necessity to construct a wall between two portions. For any reason if such wall is constructed by PW1 for the reason of “Vastu”, it is for him to explain the same. Existence of demarcating wall is another ground to believe that the husband of DW1 contributed amount for the purchase of site and for that reason brothers have divided and the intervening wall was constructed. Therefore, from all angles one can observe that PW1 voluntarily executed Ex.B16.
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Judgment in OS 183/2012 /Mahila Court/VSP
24.The contention of PW1 that due to the subsisting mortgage he cannot execute Ex.B16, has no logic to stand for the reason that, there is a clear cut recital in Ex.B.16 that, DW1 and other defendants shall not make any constructions in the property till the closure of housing loan in the year 2002 and by making such constructions, they shall not embarass PW1 before the Bank authorites, who granted the housing loan. The other argument is that, if any alienation has to be made one has to obtain permission from the
VUDA and as the site was solely granted and registered in his favour, there cannot be any understanding with husband of DW1 etc., cannot be believed.
Absolutely there is no embargo for the transfer of part of the site to anybody.
Even if such clause is there, it will be only for a temporary period, but cannot be there for ever. Therefore, the argument of the plaintiff’s counsel in the regard cannot be appreciated.
25.This Court already observed in the above part of the judgment that, there is a consideration for the Ex.B16, as PW1 in crystal clear terms mentioned that his brother contributed amounts for the purchase of the property and also about the division of the same in between the brothers.
Failure on the part of DW1 to place evidence regarding the actual contributions made by her husband is not a ground by itself to disbelieve their version, more so in the absence of PW1 to establish that Ex.B16 was obtained by coersion or undue influence. The case law relied upon by the defendant goes to show even though defendants have not asked for the relief of specific performance of contract, they can hold on the possession
U/s. 53-A of Transfer of Property Act.
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Judgment in OS 183/2012 /Mahila Court/VSP
26.Some photostat copies of the letters are confornted to PW1 at the time of cross-examination and he admitted the handwriting as that of him. The defendants counsel argued that in those letters PW1 categorically amditted about the understanding that his brother Satyanarayana in the purchase of the property and acknoweledgment of his liability to transfer the property. In any view of the matter, as those documents are not marked, no finding can be given and they cannot be reckoned with. It is the argument of the plaintiff’s counsel that, there is a borewell in the north-east corner of the suit schedule property and it was dug by PW1 and he has been using the water to cater the needs of the buildings constructed in his portion. It is the contention of the defendants that, they dug the said bore well. Neither side filed any document to show that who dug the said bore well. As PW1 and husband of DW1 being brothers, there is no surprize for utilization of water by PW1. Due to the absence of any constructions in the suit property and due to the existence of a bore well in the site of his brother, probably PW1 might not have thought of digging another borewell in his portion. Therefore, due to the presence of the said bore well one cannot conclude that PW1 enjoyed total 594 sq.yards as absolute owner of the same. Taking all those aspects into consideration, the issues 1 and 6 are answered against the plaintiff.
27. Issued No.5: it is the contention of the defendants that 4th defendant is no way concerned to the suit except scribing the Ex.B16; so, the suit is liable for dismisal on the ground misjoinder of un-necessary party and also contended that the other children Dr. B.Satyanarayana are not made as parties to the suit, as such the suit is laible for dismissal for non- joinder of necessary parties. Here, it is to be observed that PW1
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Judgment in OS 183/2012 /Mahila Court/VSP categorically stated that D4 also high handedly tried to arranged gate, painted the wall and inscribed the name of the DW1 as absolute owner and so, sought for permenant injunction. Therefore, D4 cannot be considered as misjoinder to the suit. When D1 & D2 are guarding the interests of late Dr.
B.Satyanarayana not adding the daughters cannot be considered as bad for non-joinder of necessary parties. So, the issue is answered accordingly.
28. Issues 2 to 4: As issues 1 and 6 are answered against the plaintiff, he is not entitled for eviction of defendants consequential relief of injunction, for future damages and for permanent injunction etc,. So, the issues are answered against the plaintiffs.
29. Issue No.7: As issues 1 & 6 are answered in favour of the defendants and against the plaintiff, the suit is to be dismissed without costs.
30.In the result, the suit is dismissed without costs by holding that plaintiff is not entitled for eviction of the defendants 1 to 3 and for recovery of suit schedule property; that defendants 2 to 4 are entitled to hold on to the suit schedule property under Section 53-A of Transfer of Property Act shield; that the suit is not bad for either non-joinder or mis-joinder of the parties; and that the plaintiff is not entitled for any consequential relief and for damages.
Dictated to the Stenographer, Gr.II, transcribed by him, corrected and
pronounced by me in open Court, this the 21st day of December, 2018.
VI ADDITIONAL DISTRICT JUDGE,
VISAKHAPATNAM.
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Judgment in OS 183/2012 /Mahila Court/VSP
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF:DEFENDANTS:
PW.1: Buddha Maheswara RaoDW.1: Buddha Tulasi Parvathi
DW.2: Karri Diwakara Rao
DW.3: Mall Sambasiva Rao
EXHIBITS MARKED
For Plaintiff:
Ex.A1: Original letter from VUDA to plaintiff allotting house site dated 16.06.1980 Ex.A2: Original letter from VUDA to plaintiff allotting house site by drawing lottery dated 19.10.1980. Ex.A.3: Original order dated 18.12.1980 Ex.A.4: Original letter from VUDA to plaintiff acknowledging payment of full cost of plot Rs.26,730/- dated 29.07.1981 Ex.A.5: Original registered sale deed dated 30.06.1981 Ex.A.6: Original proceedings of GVMC dated 13.10.1981 Ex.A.7: Orginal valuation certificate by valuer D.Venkatareddy dated 08.12.1992 Ex.A.8: Original proceedings by GVMC dated 06.06.1994 Ex.A.9: Original property tax passbook by GVMC dated 03.03.2012 Ex.A.10: Original demand notice dated 17.05.2011 Ex.A.11: Original demand notice dated 09.11.2011 Ex.A.12: Original receipt Eseva for payment of property tax dated 03.03.2012 Ex.A.13: Original property tax pass book by GVMC Ex.A.14: Original demand notice dated 17.05.2011 Ex.A.15: Original demand notice dated 09.11.2011 Ex.A.16: Original water charges receipt by GVMC dated 03.03.2012 Ex.A.17: Office copy of complaint by Plaintiff to SHO dated 28.04.2012 Ex.A.18: Office copy of letter to APEPDCL dated 30.04.2012 Ex.A.19: Office copy of letter to APEPDCL dated 30.04.2012 Ex.A.20: Office copy of letter to GVMC dated 03.05.2012 Ex.A.21: Original electricity bill dated 03.05.2012 Ex.A.22: Original electricty receipts dated 17.04.2012 Ex.A.23: Original Encumbrance Certificate dated 02.05.2012 Ex.A.24: Original Nil encumbrance certificate dated 02.05.2012 Ex.A.25: 13 positic photographs dated 28.04.2012
For Defendants:-
Ex.B1: Plaintiffs signature on Page 1 as guardian for his son dated 10.09.94 Ex.B.2: Plaintiffs signature on page 1 as guardian for his son dated 10.09.94
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Judgment in OS 183/2012 /Mahila Court/VSP
Ex.B.3: Plaintiffs signature on page 2 for self dated 10.09.1994 Ex.B.4: Plaintiffs signature on page 2 as guardian for his son dated 10.09.94 Ex.B.5: Plaintiffs signature on page 3 for self dated 10.09.1994 Ex.B.6: Plaintiffs signature on page 3 as guardian for his son dated 10.09.94 Ex.B.7: Two photographs Ex.B.8: Receipt by GVMC to D.1 for issue of passbook dt.16.04.08 Ex.B.9: Tax receipt by GVMC to D.1 dated 16.04.2008 Ex.B.10: Tax receipt by GVMC to D.1 dated 24.04.2009 Ex.B.11: Tax receipt by GVMC to D.1 dated 30.04.2010 Ex.B.12: Tax receipt by GVMC to D.1 dated 09.04.2011 Ex.B.13: Tax receipt by GVMC to D.1 dated 11.04.2012 Ex.B.14: Tax receipt by GVMC to D.1 dated 02.04.2013 Ex.B.15: Kararanama (Deed of confirmation) executed by PW.1 dt.10.09.94 Ex.B.16: Stamp duty penalty endorsement
VI ADJ,VSP