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IN THE COURT OF THE X ADDITIONAL DISTRICT JUDGE
::NARASAPURAM::
Present: V.S.S.Srinivasa Sarma IV Addl. District Judge, Tanuku
FAC X Addl. District Judge, Narasapuram.
Tuesday, this the 14th day of September 2021
Appeal Suit No.33/2017
Between:
Visinigiri Ramanna, S/o.Buchiramulu, Age 55 years, Male, Hindu, Agriculture, Jinnuru, Poduru Mandal, West Godavari District. …. Appellant/Plaintiff
And
1. Grama Panchayat, represented by its Secretary, Jinnuru, Poduru Mandal West Godavari District
2. Perupalem Chandrayya (Died), S/o.Suranna, Male, Hindu, Age 60 years, Business, Jinnuru, Poduru Mandal, West Godavari District.
3. Perupalem Satyanarayana, S/o.Chandrayya, Male, Hindu, Age 43 years, Business, Jinnuru, West Godavari District.
4. Perupalem Yesu, S/o.Chandrayya, Age 41 years, Male, Hindu, Business, Jinnuru, West Godavari District.
5. Chinchinada Lakshmi, W/o.Bhujanga Rao, Age 48 years, Female, Hindu, Housewife, Subbarayudu Colony, Jinnuru, West Godavari District.
6. Allam Yedukondalu, W/o.Subba Rao, Age 44 years, Female, Hindu, Housewife, Satyavaram, Penumantra Mandal, West Godavari District.
7. Chikkala Peddintlu, W/o.Nageswara Rao, Age 42 years, Female, Hindu, Housewife, Sivadevuni Chikkala, West Godavari District.
8. Bhupathiraju Surya Chandra Raju, S/o.Bhima Raju, Age 58 years, Male, Hindu, Agriculture, Jinnuru.
9. Bhupathiraju Suryanarayana Raju, S/o.Bangar Raju, Age 68 years, Male, Hindu, Agrilculture, Jinnuru, West Godavari District.
2 …. Respondents/Defendants
Appeal preferred against the Decree and Judgment dated
22.11.2016 passed in O.S.No.6/2007 on the file of Principal Junior
Civil Judge’s Court, Palakol, West Godavari District.
Between:
Visinigiri Ramanna … Plaintiff
And
1. Grama Panchayat, represented by its Secretary, Jinnuru.
2. Perupalem Chandrayya (Died)
3. Perupalem Satyanarayana
4. Perupalem Yesu
5. Chinchinada Lakshmi
6. Allam Yedukondalu
7. Chikkala Peddintlu
8. Bhupathiraju Surya Chandra Raju
9. Bhupathiraju Suryanarayana Raju … Defendants
This Appeal came on 13.09.2021 for hearing before me in the presence of Sri M.V.Rama Reddy, Advocate for the Appellant and of Sri C.V.N.Kishore, Advocate for the Respondent No.1; and Respondent No.2 died; and Respondent No.3 to No.9 remained exparte and having stood over for consideration till this day the Court delivered the following:
J U D G M E N T
The appellant Visinigiri Ramanna was the plaintiff in
O.S.No.6/2007 on the file of Principal Junior Civil Judge’s Court, Palakol
West Godavari District.
Nature of the suit in OS No.6/2007
2. As seen from the record, the appellant/ plaintiff Visinigiri
Ramanna filed the suit in O.S.No.6/2007 seeking for Declaration of Title over 'FBDE' marked portion of the plaint plan with consequential relief of
Possession and Permanent Injunction and for grant of Mandatory 3
Injunction directing the respondents/defendants to remove all the structures if any like gravel and other material in the FBDE marked portion of the suit schedule and for costs. The Trial Court dismissed the suit on 22nd November 2016.
Grounds of Appeal
3. Aggrieved by the Decree and Judgment dated 22.11.2016, the above stated appellant/plaintiff Ramanna filed the present appeal. The appellant/plaintiff Visinigiri Ramanna questioned the Judgment of the
Trail Court on various grounds interalia that the Judgment of Trial Court is contrary to law, weight of evidence and probabilities of the case.
that the Trial Court dismissed the suit on assumptions without following the law.
that the Trial Court did not assign proper reasons for dismissal of the suit and it did not consider the evidence of the plaintiff, both oral and documentary in nature.
that the Trial Court ought to have observed that the FBDE portion was never handed over to the 1st defendant Gram Panchayat for laying road and if so it ought to have held that the 1st defendant Gram Panchyat had high handedly laid road in FBDE portion without any authority.
that the observation of the Trail Court in Para No18 and No.19 that the plaintiff Ramanna claimed exclusive title but he did not establish exclusive title in possession of FBDE portion was erroneous.
that the Trial Court ought to have observed that the 1st defendant Gram Panchayat had no power of authority to lay road on private passages without execution of any settlement deed by the owners.
that the Trial Court ought to have observed that the instrument in respect of immovable property valuing more than Rs.100/ should be registered under the provisions of Transfer of Property Act and Registration Act.
4 that observation of the Trail Court that though the defendants failed to produce documents relating to the schedule property, the details were elicited through the witnesses of the plaintiff is unsustainable under law.
that observation of the Trial Court that all the coowners of the schedule property were not impleaded as parties to the suit was erroneous.
Thus, the appellants/plaintiff Visinigiri Ramanna sought to set aside the Decree and Judgment, dated 22.11.2016 in O.S.No.6/2007 on the file of Principal Junior Civil Judge’s Court, Palakol.
Points for consideration :
“Whether the Decree and Judgment dated 22.11.2016 passed in
O.S.No.6/2007 on the file of Principal Junior Civil Judge’s Court, Palakol
is sustainable under law”? or to put it otherwise,
1. Whether the plaintiff Ramanna is entitled for declaration that he has title and possession over the FBDE shown portion of the plaint plan and if yes, whether he is entitled for the relief of Permanent Injunction as well?
2. Whether the plaintiff is entitled in seeking Mandatory Injunction of removal of all structures including gravel and other material in FBDE shown portion of the plaint plan?
4. The present appeal is the first appeal against the Decree and
Judgment in O.S.No.6/2007, and thus, there is a legal obligation to examine the merits of the case in O.S.No.6/2007 based on the pleadings and the evidence of the parties. So, it is required to extract the pleadings of the parties and the evidence in brief.
Case of the plaintiff in OS No.6/2007
5. The plaint schedule property i.e, 273.8 sq.yards of site in
R.S.No.148/2 of Jinnuru village of Poduru Mandal, West Godavari
District having house bearing No.3171 and other structures including fruit bearing trees is the ancestral property of the plaintiff and it was shown as ABCD in the plaint plan. The plaintiff Ramanna and his family 5 members partitioned the plaint schedule property and other properties vide registered Partition deed, dated 24.02.2001 and thereafter, each party is in possession and enjoyment of their respective shares of property. The plaintiff Ramanna constructed daba house (RCC roofed house) in the plaint schedule property and he has possession and enjoyment of it.
6. The 2nd defendant Chandrayya encroached 90 sq.yards of site of the plaintiff Ramanna which is shown as FBDE in the plaint plan and later the 1st defendant Gram Panchayat, Jinnuru on the instigation of the 2nd defendant Chandrayya and others formed road and drain one year prior to the date of filing of the suit in a high handed and unlawful manner without the permission of the plaintiff. When the plaintiff Ramanna sought the defendants to remove the encroachments, the defendants postponed it. Hence, the suit for 'Declaration of Title with consequential relief of Possession and Permanent Injunction and further for the relief of
Mandatory Injunction.
7. As seen from the record, initially the suit was filed against the 1st defendant Gram Panchayat, Jinnuru and the 2nd defendant Perupalem
Chandrayya. On the death of 2nd defendant Chandrayya, his legal heirs were impleaded as the defendant No.3 to No.7 vide Orders in
I.A.No.354/2012, dated 06.12.2012.
8. As seen the defendant No.8 Bhupathiraju Surya Chandra Raju and the defendant No.9 Bhupathiraju Suryanarayana Raju were impleaded vide Orders in I.A.No.70/2014, dated 10.10.2014.
Written statement of the defendants in OS No.6/2007
9. The 1st defendant Gram Panchayat filed written statement and the 2nd defendant filed memo adopting the written statement of the 1st defendant. In such written statement, the 1st defendant Gram Panchayat denied all material averments of the plaint. It contended that 'BDEF' 6 (FBDE) portion of plaint plan is joint land of the plaintiff Ramanna and other residents on either side of the such land and the plaintiff Ramanna did not have exclusive right over BDEF portion of land. It contended that the plaintiff Ramanna, the 2nd defendant Chandrayya and others used the lane as pathway and cartway and as they used it for a period of more than statutory period, they perfected right as a right of easement. It contended that the father of the plaintiff V.Buchi Ramulu and other residents on either side of the joint lane called as Marisetti vari Street in
Narsaraju Nagar Pet of Jinnuru village filed a petition before it handing over joint lane seeking for laying Gravel Road and when it was accepted vide Resolution dated 82, dated 29.08.1989, it proposed to lay Gravel
Road vide Resolution, dated 05.10.1989 itself. It contended that the father of the plaintiff and other residents in that locality had executed a letter, dated 04.09.1991 seeking the 1st defendant Gram Panchayat to take possession. It contended that it installed three electrical poles with street lights and it laid metal road in pursuance of Resolution No.56,
dated 14.11.2002 spending an amount of Rs.60,000/ under SJRY
scheme and thus, the road is in existence since 1989 and it belongs to the 1st defendant Gram Panchayat.
10. The 1st defendant Gram Panchayat further contended that the plaintiff Ramanna and other defendants are using BDEF pathway and thus the allegations that it had laid road high handedly or unlawfully was incorrect. It contended that the plaintiff Ramanna and his family members have no right to claim to suit reliefs. It contended that the 2nd defendant Chandrayya and other residents had joint right over the path way shown as BDEF in the plaint plan. Thus, it sought to dismiss the suit.
Issues settled by Trail Court
11. As seen from the record, based on the pleadings, initially the
Trial Court framed the following issues:
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1. Whether the plaintiff is entitled for declaration of Title to FBDE marked portion of the plaint plan?
2. Whether the plaintiff is entitled for vacant possession of FBDE marked portion of the plaint plan?
3. Whether the plaintiff is entitled for Mandatory Injunction against the defendants?
4. Whether the plaintiff is entitled for Permanent Injunction against the defendants?
5. To what relief?
12. As seen from the record, after the death of the 2nd defendant
Chandrayya, the defendant No.3 to No.7 were impleaded vide Orders in
I.ANo.354/2012 dated 06.12.2012. On receipt of summons, the defendant No.3 Perupalem Satyanarayana filed memo adopting the written statement of the 1st defendant Gram Panchayat. The defendant
No.4 to No.7 remained exparte. As noted above, the defendant No.8
Bhupathiraju Surya Chandra Raju and the defendant No.9 Bhupathiraju
Suryanarayana Raju were impleaded vide Orders in I.A.No.70/2014
dated 10.10.2014. On summons, the defendant No.8 Bhupathiraju Surya
Chandra Raju and Defendant No.9 Bhupathiraju Suryanarayana Raju remained exparte.
13. However, basing on the pleadings whereby the defendant No.8
Bhupathiraju Surya Chandra Raju and the defendant No.9 Bhupathiraju
Suryanarayana Raju were impleaded as the parties to the suit, the Trial
Court framed the following additional Issue on 14.03.2016. It read as follows:
“Whether the defendant No.8 Bhupathiraju Surya Chandra Raju and Defendant No.9 Bhupathiraju Suryanarayana Raju are coowners of FBDE passage of the plaint plan and they are proper and necessary parties to the suit”?
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Nature of evidence before the Trail Court
14. As seen from the record, during trial of the suit, the plaintiff
Visinigiri Ramanna examined himself as PW.1. He examined Kopparti
Narasimha Murthy as PW.2 and Pyla Sanyasi Rao as PW.3. In his evidence PW.1 Ramanna got marked Ex.A1 and Ex.A2 i.e., Ex.A1 is the certified copy of Registered Partition Deed, dated 24.02.2001 and Ex.A2 is the Registered Partition Deed dated 13.02.1933.
(On perusal, it was observed to be Sale deed dt.13.2.1933 executed
Bhupathiraju Ranga Raju and others in favour of V Ramanna
S/o.Appanna)
15. As seen from the record, after closure of the evidence of the plaintiff, the Secretary of 1st defendant Gram Panchayat, Jinnuru by name
P.Ravi was examined as DW.1. It got marked Ex.B3 to Ex.B6. Ex.B3 is the
Resolution No.82, dated 29.08.1989 passed by the Gram Panchayat,
Jinnuru; Ex.B4 is the Resolution No.99, dated 05.10.1989 passed by the
Gram Panchayat, Jinnuru; Ex.B5 is the Resolution No.56, dated 14.11.2002 passed by the Gram Panchayat, Jinnuru and Ex.B6 is the registered sale deed executed by Maddala Seetha Rama Murthy and his sons in favour of Perupalem Chandra Rao.
16. Ex.B1 and Ex.B2 Photos relating to the dispute property were marked in the crossexamination of PW.1 Ramanna. Ex.B1 and Ex.B2 are the positive photograph relating to the property shown as FBDE in the plant plan.
17. As seen, the 1st defendant Gram Panchayat examined Marisetti
Naga Venkata Rama Chandra Murthy as DW.2 and Burla Appala
Satyanarayana as DW.3.
Nature of the Findings or Observations of the Trail Court in OS No.6/2007
18. As seen from the record, the Trial Court after careful consideration of the pleadings of the parties and their evidence both oral 9 and documentary in nature, it had dismissed the suit on various grounds interalia that FBDE portion of the suit property is a joint property where the plaintiff Ramanna has 1/5th undivided share and the other sharers were not imlpeaded as the parties to the suit even though the other sharers i.e, defendant No.8 Bhupathiraju Surya Chandra Raju and the defendant No.9 Bhupathiraju Suryanarayana Raju were impleaded, the plaintiff Ramanna failed to prove that he had exclusive right as claimed by him.
the evidence of the defendants and the crossexamination of witness of the plaintiff Ramanna shows that the FBDE was handed over to the Panchayat for the purpose of laying road in the year 1989 itself and the road was laid by 1992 itself.
the plaintiff Ramanna did not approach Court with clean hands and as such, he is not entitled for suit reliefs.
Analysis of the Case and Enquiry as to the correctness of the Judgment of the Trail Court
19. As noted above, the plaintiff Ramanna had sought for declaration that he had title to part of the suit schedule property which is shown as 'FBDE' in the plaint plan i.e., 90 sq.yards of site out of suit schedule property which is noted to the 273.8 sq.yards of site shown as
ABCD in the plaint plan. The plaintiff Ramanna had sought for Mandatory
Injunction of removal of structures raised in FBDE portion including gravel. Soon after he is granted a relief of Declaration of Title and
Mandatory Injunction for removal of all structures, he sought for delivery of possession, and then there shall be a Permanent Injunction restraining the defendants from interfering with his possession over FBDE property, which is part of ABCD property.
20. For the sake of convenience, the Schedule of the property as well as Rough sketch of the property are extracted.
Schedule of suit property 10
Daba house bearing No.3171 in an extent of 273.8 sq.yards in
R.S.No.148/2, Jinnuru Village, Poduru Mandal , West Godavari District having the following boundaries:
East: Marisetti Rambabu West: Visinigiri Rama Krishna South: Burla Satyanarayana North: Road
Plaint Plan/Rough Sketch
AFB RCC Roofed house of plaintiff
Cattl e Encroached Shed portion
CED
21. At the outset, it should be observed that there is no dispute that the plaintiff Ramanna is the owner of the property shown as AFEC in the plaint plan/rough sketch. The plaintiff Ramanna noted the suit schedule property to be 273.8 square yards of site. The plaintiff Ramanna specifically noted that the property shown as FBDE in the plaint plan was the encroached portion of the property shown as ABCD in the plaint plan.
When the plaintiff Ramanna is seeking for Declaration of title of the property shown as FBDE in the plaint plan and its possession, the schedule should be clear and unambigious. The boundaries were furnished for the entire property shown as ABCD in the plaint plan. The plaintiff Ramanna did not furnish linear measurement of the property shown as FBDE in the plaint plan and or the property shown as ABCD in the plaint plan. In such a case, even if a decree is granted in favour of the plaintiff, it is not practical to execute it. Leaving aside such an aspect, 11 which this Court would discuss hereafter, the merits of the case are required to be considered.
22. As noted above, the plaintiff Ramanna pleaded that he had partition with his family members on 24.02.2001 and in such partition, the plaint schedule property shown as ABCD in the plaint plan felt his share and since then he is in possession and enjoyment of such property constructing a RCC roofed house (bada house). During trial of the suit, the plaintiff Ramanna filed affidavit under Order18 Rule4 of Civil
Procedure Code reiterating the contents of the plaint. In his evidence, the certified copy of the Partition Deed, dated 24.02.2001 bearing Document
No.717/2001 was marked as Ex.A1. He also got marked the Sale deed of
Visinigiri Ramanna son of Appanna dated 13.02.1933 where under the said Ramanna purchased the property from Bhupathiraju Ganga Raju and others. But, it was referred as Partition Deed in evidence. Infarct Ex.A2 has no direct bearing on the suit claim.
23. As noted above, the defendants did not deny the title of the plaintiff Ramanna over the entire extent of ABCD plaint schedule which included the property shown as FBDE in the plaint plan. The defendants contended that the property shown as FBDE in the plaint plan is not the exclusive property of the plaintiff Ramanna and that it belongs to the plaintiff Ramanna and the residents on either side of the pathway.
24. In his crossexamination, PW.1 Ramanna had categorically admitted that the property shown as FBDE in the plaint plan does not exclusively belong to him but it is a joint lane. He admitted that earlier the family of the defendant No.8 Bhupathiraju Surya Chandra Raju, the defendant No.9 Bhupathiraju Suryanarayana Raju and he used the property shown as FBDE in the plaint plan. He admitted that in such joint lane there existed a road with mud and it was called as Rajula Veedhi. He admitted that the 2nd defendant Perupalem Chandrayya is the eastern boundary owner of the property shown as FBDE in the plaint plan. He 12 admitted that the Gram Panchayat laid electrical poles and fixed lights in the property shown as 'FBDE' in the plaint plan. He denied suggestions given by the Counsel for the 1st defendant Gram Panchayat which were in tune the case of the 1st Gram Panchayat. In his crossexamination he admitted Ex.B1 and Ex.B2 Positive photographs of the disputed lane i.e., the property shown as FBDE in the plaint plan. He denied that based on the letter dt.4.9.1991 of his father and others, the Gram Panchayat converted the private lane as panchayat lane. He denied that the Gravel road was laid in the year 1989 and metal road in the year 2002 but he was claiming title schedule property where he had no such right.
25. As seen from the record, PW.2 Narasimha Murthy and PW.3
Sanyasi Rao gave evidence supporting the case of the plaintiff. In his crossexamination, PW.2 Narasimha Murthy admitted that the father of the plaintiff and others gave representation to the Gram Panchayat to lay road on the east of the property of the plaintiff. He contended that the lane on the east of the property of the plaintiff is not joint lane but it is his exclusive property. He denied knowledge about the Resolution No.82,
dated 29.08.1989 and that the Gravel Road was laid in disputed site in
the year 1989 but he admitted that Panchayat laid metal road in the year 2002 vide Resolution No.56 under SJRY Scheme. He admitted that
Bhupathiraju Satyanarayana Raju (defendant No.9) and Suryachandra
Raju (defendant No.8) had right of passage in the site situated to the east of the plaintiff. In his crossexamination PW.3 Sanyasi Rao admitted that the families belonging to Kshyatriya community residing on the south of the property of the plaintiff Ramanna have to pass through the disputed lane to reach the main road. He admitted that the Panchayat passed
Resolution to lay road. He admitted that the Panchayat erected three electrical poles and fixed street lights in the disputed lane after laying road. He admitted that the Panchayat laid metal road on gravel road in the year 1992 itself in the disputed lane. He contended that the plaintiff
Ramanna and he questioned the Panchayat about its act i.e., laying of road in the year 1992.
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26. Now considering the evidence of the plaintiff Ramanna and his witnesses, it is evident that the 1st defendant Panchayat laid road in the dispute property shown as FBDE in the plaint plan in the year 1992 itself.
The plaintiff Ramanna had questioned the 1st defendant Panchayat in the year 1992 itself, but he did not initiate action when there was no positive response. The crossexamination of PW1 Ramanna itself shows that the plaintiff Ramanna did not have exclusive right over the property shown as
FBDE in the plaint plan. Further, the crossexamination of the plaintiff
Ramanna and his witnesses show that the Gram Panchayat had laid road in the year 1992 and further it laid metal road over the existing gravel road in the year 2002. Further, the 1st defendant Gram Panchayat had erected three poles and the electrical lights in the property shown as 'FBDE' in the plaint plan. The suit was filed in the year 2007. Therefore, when the Gram Panchayat had laid road in the year 1992, be it with the consent of the plaintiff Ramanna and other, be it in any high handed manner, the fact remained that the road is put to public use since 1992 and thus, the plaintiff Ramanna had lost his exclusive right, if any and so also, the possession over the property shown as 'FBDE' in the plaint plan since 1992. Irrespective of the fact that the parties took a plea of limitation, it is the bounden duty of the Court to consider the aspect of limitation. Therefore, the relief of the declaration of title and consequential possession is barred by limitation. The plaintiff Ramanna is not entitled of the suit relief of declaration and consequential recovery of the possession.
27. If the property shown as FBDE site in the plaint plan is a joint property, the plaintiff Ramanna had to implead all the joint owners as the parties to the suit and he should ask appropriate reliefs. Incidentally during pendency of the suit, the plaintiff Ramanna had impleaded the so called coowners i.e., the defendant No.8 Suryachandra Raju and the defendant No.9 Suryanarayana Raju. He impleaded the defendant No.8
Suryachandra Raju and the defendant No.9 Suryanarayana Raju as the 14 plaintiff Ramanna felt that they are also joint owners of the property shown as FBDE in the plaint plan but it was not stated as to how the defendants No.8 and No.9 can be considered as joint owners. A perusal of
Ex.A1 Partition deed it not show them as the cosharers. It should be noted that though he impleaded such persons as the defendants in this suit, he maintained the suit claiming exclusive right over the property shown as FBDE in the plaint plan. Admittedly, when the plaintiff
Ramanna claimed that the dispute portion of land i.e., the property shown as FBDE in the plaint plan is joint lane be it the defendants No.8 and No.9, he cannot seek the relief of declaration of title exclusively. As such, he cannot even seek for exclusive Possession or Mandatory
Injunction or Permanent Injunction. Thus, viewed in this angle, the plaintiff Ramanna is not entitled for suit reliefs.
28. Before this Court make further discussion of the evidence on record, it is pertinent to refer to Ex.A1 Partition Deed dt.24.2.2001. As seen from the said Partition deed, the plaintiff Ramanna was allotted 'D schedule properties. D Schedule properties include property situated at
RS No.148/2 of Jinnuru Village. The plaintiff Ramanna was allotted 273.8.60 square yards site i.e., Item No.2 and 1/5th undivided and unspecified right in joint pathway which was noted as 21.3.86 square yards site i.e., Item No.3 and in all 295.3.2 square yards of site. The Item
No.2 i.e., the site of 273.8.60 square yards has the following boundaries.
East: Joint Pathway shown as Item No.380 feet; South: Boorla
Satyanarayana30.6 feet; West: Property of Visinigiri Rama Krishna and
North: Raja Veedhi. The Item No.3 i.e., Joint Pathway is site of 21.3.86 square yards and it has the following boundaries. East: the Compound wall of Marisetti Ramababu 80 feet; South: Joint Lane abutting the Item
No.3 belonging to Bhupathi Raju and others 12 feet; West : Item No.2 80 feet and North : Raja veedhi. So, it is evident that there are two items of property i.e., Item No.2 Vacant site and the Item No.3 Joint path way between the site of the plaintiff (item No.2) and compound wall of
Marisetti Rambabu. In all the property is 295.3.2 square yards is given to 15 the plaintiff Ramanna vide Ex.A1 Partition deed. It includes vacant site of 273.8.60 square yards and the Joint pathway of 21.3.8 square yards. But, the plaintiff Ramanna had shown the suit property as ABCD as site of 273.8 square yards only which is inclusive of FBDE pathway which is of 90 square yards (allegedly encroached by the 2nd defendant where the 1st defendant Gram Panchayat laid road). So it is evident that the plaintiff
Ramanna did not furnish the entire property covered by the Ex.A1
Partition deed as schedule property. Sketch of Item No.2 and No.3 can be prepared and represented as below. But it should be observed that the
Item No.2 and No.3 of Ex.A1 Partition deed dt.24.2.2001 are adjoining one another.
(ref :: Ex.A1 Partition deed dt.24.2.2001)
Item No.2 Item No.3
North : Raja Veedhi (public lane) North: Raja Veedhi
West: Property of Visinigiri RamakrishnaWest: Item No.2 in Dschedule in Ex.A1 in Dschedule in Ex.A1East: Joint path way shown as Item No.3d wall of Marisetti Rambabu 21.3.86 sq.yards 273.8.60 sq.yards of siteof site shown as shown as Item No.2 of DItem No.3 of D schedule in Ex.A1 Partitionschedule in Ex.A1 deed dt.24.2.2001Partitiondeed dt.24.2.2001
South: Burla SatyanarayanaSouth: Joint lane of Family of Bhupathiraju
29. As noted above the Ex.A1 Partition deed referred two items of property. The Item No.2 is Vacant site of 278.3.86 square yards and the
Item No.3 is Joint pathway i.e., site between the site of the plaintiff (Item
No.2) and compound wall of Marisetti Rambabu of 21.3.86 square yards.
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In all the property is 295.3.2 square yards. The plaintiff Ramanna has not shown these two properties in the suit schedule. It is not his case that there is no dispute regarding the Item No.3. It is not his specific case that the 2nd defendant Chandrayya had encroached 90 square yards of site of the Item No.2 and then, the 1st defendant Gram Panchayat laid road. So, it should be understood as if the 1st defendant Gram Panchayat laid road in the Item No.3. When the boundaries of the suit schedule property shown as ABCD in the plaint plan are considered, the eastern boundary was shown as the property of Marisetti Ramababu. Therefore, the suit schedule is inclusive of the joint lane i.e., Item No.3. Then the total extent of the property should be 295.3.2 square yards. The plaintiff Ramanna is aware that he had no absolute and exclusive right over the Item No.3 and in all 295.3.2 square yards. Therefore, the plaintiff Ramanna had noted the suit schedule to be 273.8 square yards of site. Infact the defendants are not questioning the right of the plaintiff Ramanna over the Item No.2 i.e., site of 273.8.6 square yards covered by Ex.A1 Partition deed. They question the right of the plaintiff Ramanna over the disputed lane.
30. As noted above the plaintiff Ramanna had shown the suit schedule property as 273.8 and he pleaded that the 2nd defendant encroached 90 square of site where the 1st defendant Gram Panchayat had laid road. He did not specifically state that the 90 square yards of site was part of the Item No.2 i.e., 273.8.6 square yards of site covered by
Ex.A1 Partition deed. Evidently, it is not the Item No.3 alone as it is 21.3.86 square yards. If the encroachment is 90 square yards, it should cover the Item No.2 and No.3 of Ex.A1 Partition deed dt.24.2.2001. He left the details in ambiguity.
31. The plaintiff Ramanna claimed title to the property where the 1st defendant Gram Panchayat laid road. Certainly, the 1st defendant
Gram Panchayat laid road in the Item No.3 of the property i.e., 21.3.86 square yards of site covered by the Ex.A1 Partition deed dt.24.2.2001. If not, the plaintiff Ramanna should show the suit schedule property as 17 273.8 square yards of site inclusive of 90 square yards of site allegedly encroached by the 2nd defendant and then, the eastern boundary would be the joint pathway which is referred as the Item No.3 in the Ex.A1
Partition deed. But, as noted above, the eastern boundary was shown as the property of Mariseeti Rambabu. Ex.A1 Partition deed shows the eastern boundary of the Item No.3 as the compound wall of Marisetti
Rambabu. Ex.B1 and Ex.B2 Photos show that the eastern side of the lane is covered by the compound wall of Mariseeti Rambabu. So, the necessary inference is that the plaintiff Ramanna is referring the Item No.3 as the disputed lane and such property is shown as FBDE in the plaint plan.
When the property shown as FBDE in the plaint plan is considered as the
Item No.3 referred in D Schedule in Ex.A1 Partition Deed, it has specific measurements. Then specific measurements should be given. So, the description of the property and schedule itself are incorrect and as such, the plaintiff Ramanna is not entitled for sort of relief.
32. In the case of Executive officer Arulmigu Chokkanatha Swamy
Trust Virudhunagar Vrs Chandran and Others (2017) 3 Supreme Court cases 702, the Supreme Court discussed the effect of furnish incorrect or wrong particular i.e., mis-description of the property. The ratio in this case supports the above observation of this Court.
33. Now this Court would consider the evidence of the defendants.
When the evidence of the defendants on record is considered, it is evident that the 1st defendant Gram Panchayat had fortified its contentions by leading cogent evidence. As noted above, the Secretary, Gram Panchayat by name P.Ravi was examined as DW.1 In his evidence, he filed the
Resolution No.82, dated 29.08.1989 as Ex.B3 and the Resolution No.99,
dated 05.10.1989 as Ex.B4. Ex.B3 and Ex.B4 shows that the disputed
property i.e., FBDE was handed over to the 1st defendant Gram Panchayat seeking to lay road. Further Ex.B5 Resolution No.56, dated 14.11.2002 shows that the 1st defendant Gram Panchayat intended to lay Gravel Road on metal road. Ex.B3 to Ex.B5 and Ex.B1 as well as Ex.B2 Photographs 18 show the existence of Gravel road since 1992. The above evidence fortified the claim of the 1st defendant Gram Panchayat that it laid road in the year 1992 itself.
34. As seen, the 1st defendant Gram Panchayat examined
M.N.V.Rama Chandra Murthy as DW.2 and B Appala Satyanaraan as
Dw2. They supported the version of the 1st defendant. They stated that the property FBDE as a pathway meant for use of the public in general and it did not exclusively belong to the plaintiff Ramanna. The cross examination of DW.1 to DW.3 had not discredited their evidence. The crossexamination did not lend any support to the claim of the plaintiff
Ramanna that the plaintiff had exclusive right over the suit schedule property.
35. Before further aspects are discussed, it is necessary to refer the established principles of law set out by the Apex Court which are required to be considered in a suit for declaration of title and recovery of possession. In
Jagdish Prasad Patel (dead) through Legal Representatives and another vs.
Shivnath and others, (2019) 6 SCC 82 while dealing with the suit for declaration of title and possession, Apex Court reiterated the principle that suit for declaration of title and possession the plaintiffs will succeed on the strength of their own title irrespective of whether defendants proved their case or not. In
Paragraph 44 and 45 the Apex Court had set out the principles. It held that in the suit for declaration for title and possession, the plaintiff could succeed only on the strength of his own title and not on the weakness of the case of the defendant. It held that the burden is on the plaintiff to establish his title to the suit properties to show that he is entitled for a decree for declaration. In Para 45 the Apex Court observed that in a suit for declaration of title, the plaintiff has to succeed only on the strength of his own title irrespective of whether the defendant has proved his case or not. In Union of India Vrs Vasavi
Cooperative Housing Society Limited (2014) 2 SCC 269, the Apex Court held that (Para 15) it is trite law that, in a suit for declaration of title, the burden always lies on the Plaintiff to make out and establish a clear case for granting 19 such a declaration and the weakness, if any, of the case set up by the Defendants would not be a ground to grant relief to the Plaintiff.
36. As noted above, the plaintiff Ramanna had filed the suit for the relief of declaration of his title, possession of the property shown as FBDE in the plaint plan and other reliefs. When the plaintiff Ramanna filed the suit for declaration and possession, the plaintiff Ramanna has to prove his case and he should succeed on the strength of his evidence but he cannot seek for a decree based on the weakness of the case of the defendants or the failure of the defendants in substantiating their pleas. When such is the proposition of law, even if the defendants failed to prove that the father of the plaintiff and others had given the disputed site i.e., FBDE to the 1st defendant Gram Panchayat to lay roads, it would not entitle the plaintiff Ramanna in seeking a decree. Therefore, the failure of the 1st defendant Gram Panchayat in causing production of a letter dt.4.9.1991 handing over the property to the Gram Panchayat would not confer title to the plaintiff. Infact, the witness of the plaintiff i.e., PW2 Narasimha
Murthy admitted that the father of the plaintiff and others have representation to the 1st defendant Gram Panchayat to lay road. Thus, the plaintiff Ramanna has to prove his title to have a decree. If not, the suit is liable to be dismissed.
37. The admitted fact was that the Gram Panchayat laid road in the year 1992 itself and the plaintiff Ramanna filed the suit questioning it in the year 2007 when the Gram Panchayat tried to lay Gravel road over the
Metal road. It should be noted that the plaintiff Ramanna lost his title to the suit schedule property, if any in the year 1992 itself. The silence on the part of the plaintiff Ramanna in questioning the act of the 1st defendant Gram Panchayat in laying road since 1992 would debar him in seeking the suit reliefs. Certainly the claim of the plaintiff Ramanna, even if he is entitled for the relief of declaration of title and possession, it is barred by limitation. In order to overcome the aspect of limitation, the plaintiff Ramanna was questioning the act of the 1st defendant Gram 20
Panchayat in laying road in the year 2002 pleading as if the possession of the property shown as FBDE in the plaint plan was never given to the 1st defendant Gram Panchayat. Further, he filed the suit in OS No.6/2007 questioning the act of the Gram Panchayat of the year 2001 in the year 2007 and the attitude of the plaintiff Ramanna shows that he did not approach the Court with clean hands.
38. The plaintiff Ramanna had invoked the provisions of Specific
Relief Act 1963 in seeking the relief of Declaration, Possession and
Injunction. The Courts can grant the 'Declaratory Relief and Injunction
Relief' provided the right of the plaintiff Ramanna is established but if it could be observed that the plaintiff Ramanna has not approached the
Court with clean hands and or that he approached the Court suppressing the material facts, the Court should deny the suit reliefs. In the instant suit, the plaintiff Ramanna had suppressed the fact that the road was laid in the year 1992 itself. He sought for exclusive right of title which he did not possess over the property. The details of the schedule were wrongly furnished in the suit. Therefore, it should be observed that the plaintiff
Ramanna had approached the Court suppressing the material facts and with unclean hands. Therefore, even if the law permits the plaintiff
Ramanna in having the suit reliefs, the salutary provisions of Specific
Relief Act 1963 would debar him in having the reliefs.
39. In Dalip Singh Vrs State of UP (2010) 2 SCC 144, the Apex Court had condemned the practice of misrepresentation and suppression of material facts. It started the judgment stating that “For many centuries, Indian society cherished two basic values of life i.e., `Satya' (truth) and `Ahimsa' (non-vio- lence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to in- grain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences.
However, post-independence period has seen drastic changes in our value sys- tem. The materialism has over-shadowed the old ethos and the quest for personal 21 gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly re- sort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who at- tempts to pollute the stream of justice or who touches the pure fountain of jus- tice with tainted hands, is not entitled to any relief, interim or final”.
40. Further, in the case of M/s.Seemax Construction (P) Ltd v. State
Bank of India AIR 1992 Delhi 197 it was held that the suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the Court with clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. A person deliberately concealing material facts from Court is not entitled to any discretionary relief.
41. Thus, viewed in any angle, the suit was liable to be dismissed and the Trial Court had rightly dismissed the suit in OS No.6/2007 be that it had adopted a different style of approach in consider the lis and answering the issues framed in the suit.
42. Considering the pleadings of the parties and their evidence on record, it should be observed that the plaintiff Ramanna could not establish his exclusive right in respect of the property shown as FBDE in the plaint plan and as such, the Trail Court had rightly answered the Issue
No.1 against the plaintiff Ramanna and it is affirmed. Similarly, the plaintiff Ramanna was not entitled for the relief of Possession and
Mandatory Injunction as well as Permanent Injunction and thus, the Trail
Court had answered the Issue No.2 and No.3 against the plaintiff
Ramanna and the same are affirmed. In fact without pleading, the Trail 22
Court had framed additional Issue and it need not be considered. So, when this Court made a thorough analysis of the pleading and evidence, it should be observed that the Trial Court had given cogent reasons while dismissing the suit and the appellant/plaintiff Ramanna could not place material suggesting that there existed perversity in the findings or observations of the Trial Court which warranted interference. Thus, there are no merits in this appeal whereby the Decree and Judgment dt.22.11.2016 of the Trial Court can be set aside. Thus, the above points framed for consideration are answered against the appellant/plaintiff.
Thus, the appeal should fail.
Result
43. In the result the appeal is dismissed with costs confirming the
Decree and Judgment, dated 22.11.2016 in O.S.No.6/2007 of Principal
Junior Civil Judge’s Court, Palakol West Godavari District.
Dictated to the Stenographer GradeIII, corrected and pronounced
by me in Open Court, on this the 14th day of September, 2021.
Sd/V.S.S.Srinivasa Sarma IV Additional District Judge Tanuku FAC X Additional District Judge Narasapuram
Appendix of Evidence
N I L
Sd/V.S.S.Srinivasa Sarma IV ADJ, Tanuku FAC X ADJ, Narasapuram.