Sri. Y. Govinda Reddy

O.S. 946/20021

IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE:::

WARANGAL.

Monday the 15th day of April, 2013.

Present:- Sri Y. Govinda Reddy, M.Com., B.L., II Addl. Junior Civil Judge, Warangal.

O.S. No. 946 OF 2002

Between :

1. Saleha Sultana(died) her L.R's plaintiffs No.2 to 6

2. M.A. Khader

3. Mohd. Khaja Moinuddin

4. Yasmeen Sultana

5. Shabana Azmeen

6. Ruksana …Plaintiffs

And

1. G. Laxminarayana

2. Khasim Kham

3. Raju

4. Pushpavathy

5. Kalavathy …Defendants

This suit coming up before me for final hearing in the presence of Sri Syed Jafer Ahmed, Counsel for Plaintiffs, and of Sri P. Laxminarayana, Advocate for the defendants and upon perusing the material on record and having the matter stood over for consideration this Court has made the following:

: : J U D G M E N T : :

This is a suit filed by the plaintiffs against the defendants seeking permanent injunction restraining the defendants their agents, servants and workmen etc, from any way interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and to award costs of the suit.

PER PLAINTIFF:

2.That the open plot measuring 306.66 Sq. yards, which is spreading in S.No. 347, 348, 350 and 351 situated at Waddapally

Revenue village within the Municipality limits, is the suit property. That the deceased plaintiff NO.1 has purchased the suit plot under

O.S. 946/20022

registered sale deed No. 1237/2002 dated: 9-3-2002 and took delivery of possession of the same from Md. Saheb Hussain. The plaintiff NO.1, who died pending suit leaving plaintiff NO.2 to 6 as his legal heirs, was in possession and enjoyment of the same. While so on 2-7-2002 the defendants interfered with the possession of deceased plaintiff No.1 when she tried to dig trenches for foundation.

Hence the suit for perpetual injunction against the defendants.

During pending suit the plaintiff NO.1 died and her LRs were added as plaintiffs No.2 to 6 as per orders in I.A. NO.844/2004 dated:

8-7-2004.

PER DEFENDANTS:

3.It is false to say that Md. Saheb Hussain was owner of the land in S.NO. 347, 348, 350 and 351d of Waddapally Revenue village and that he sold the suit plot to the deceased plaintiff NO.1 under registered sale deed No. 1237/2002 and delivered possession of the same to deceased plaintiff No.1. The suit property as has been described in the plaint schedule is not in S.No.347, 348, 350 and 351.

In fact the suit property is part and parcel of S.No. 346 of Waddapally

Revenue village. Land in S.No. 346 originally belong to Pingili Janaki

Devi who appointed Nukala Raghunatha Reddy as her GPA holder. The said Nukala Raghunatha Reddy has laid land in S.No. 341 into the house plots and sold to several persons. The defendant NO.4 purchased 200 Sq. yards of plot in S.No. 346 under a registered sale deed No. 231/83 on 27-1-1983. The boundaries for the plot are as under:

East: Land NO. 5 West :Land of Kalavathi (D5) South:Land No. 14

O.S. 946/20023

North :60 feet road. After the purchase of suit plot D4 obtained door number to her plot as 2-8-525/3 and has been enjoying the same. At presently the plot of D4 is bounded by:

East: Shed with open land of A. Umadevi West :Shed with open land of fKalavathi (D5) South:Plot NO. 14 North :60 feet road.

4.The D5 has purchased open plot measuring 200 Sq. yards in S.No. 346 under a registered sale deed from Pingili Janaki Devi through her GPA holder : Nookala Raghunatha on 2-1-1983 vide document No. 231/83 within the following boundaries: -

East: Land of Pushpavathi West :Land No.3 South:Land NO. 14 North :60 feet road.

The Defendant No.5 has levelled her plot, constructed compound wall and has obtained H.NO.524/2 in respect of her plot and she has been in possession and enjoyment of the same. The plots of Defendant No.4 and Defendant No.5 are situated in plot NO. 4 of S.No.346 and

Defendant No.4 and Defendant No.5 have been in possession and enjoyment of their respective plots. The plaintiffs cannot file the suit for simple injunction without seeking declaration of the title. The cause of action pleaded is incorrect and the suit is liable to be dismissed.

5.Basing on the above pleadings, this court has framed the following issues:

1. Whether the plaintiffs No.2 to 6 along with plaintiff No. 1 were in possession and enjoyment of the suit property. Whether the defendants interfered with the possession of the plaintiffs NO. 2 to 6 over the suit property

without any right and jurisdiction?

2. Whether the plaintiffs No.2 to 6 are entitled

O.S. 946/20024

for permanent injunction as prayed for?

6.The above issues are not properly cast and as such the following issues were agreed to be recast by both the counsels.

7.The issues framed are as under:

1. Whether the plaintiffs are entitled for perpetual injunction in respect of the suit property as prayed for?

2. To what relief?

8.The plaintiffs have examined P.Ws.1 to 4 and got marked

Ex.A1 to A3 on their behalf. P.W.1 is plaintiff No.1, P.W.2 is brother of plaintiff's vendor, P.W.3 is a mason and P.W.4 is an attester of Ex.A1 sale deed. Ex.A1 is registered sale deed dated: 9-3-2002 executed by

Md. Saheb Hussain in favour of plaintiff No.1. Ex.A2 and A3 are photographs. On the other hand defendant No.1 has examined himself as D.W.1 and got marked Ex.B1 and B2 (photographs) through P.W.2.

He also got marked Ex.B1-A, Ex.B2-A and Ex.B3 to B8. Defendant

NO.4 has examined herslef as D.W.2 and got marked Ex.B9 to B15 pahanies. The defendants have also examined the neighbouring plot owners as D.W.3 and D.W.4

9.Now let me answer the issues basing on the above pleadings:

ANSWER TO ISSUE NO.1

10.The contention of plaintiffs is that the deceased plaintiff

No.1 is the owner and possessor of suit plot having purchased the suit property under Ex.A1 on 9-3-2002 from Saheb Hussain and that the suit plot is spilling in S.No. 347, 348, 350 and 351.

11.Per contra the contention of defendants is that the suit property is part and parcel of S.No. 346 and that the plaintiffs are

O.S. 946/20025

claiming their right over the land in S.No. 346 under mistaken identity as to their plot.

12.It is pertinent to mention at an outset that the entire litigation is running around the location of suit property as the plaintiffs would contend that the suit property is situated in S.No.347, 348, 350 and 351, and defendants say it is in S.No.346. The plaintiffs will succeed in their case if they establish that the suit proplerty is located in S.No.347, 348, 350 and 351 of Waddepally village. The plaintiff No.2, who is the husband of plaintiff No.1 has entered into the witness box and reiterated the contents of plaint in his chief examination. In the course of cross examination as to the location of suit property, the P.W.1 stated as - " My wife purchased the property in S.NO. 347, 348, 350 and 351 measuring 306 Sq. yards. The said extent of 306 Sq. yards is spreading in all the four survey numbers. I can not say the specific extent which spread in each of the above survey numbers. We never measured the suit land to know in which survey number the suit property is falling". The above evidence of

P.W.1 is disclosing that the plaintiffs have no idea as to where the property covered by Ex.A1 is situated. When the location of suit property is disputed, the plaintiffs shall have to prove the location of disputed property by filing integrated sketch map of all the survey numbers and to superimpose the suit plot on such integrated sketch map. But such exercise has not been taken by the plaintiffs to establish that the suit plot is in S.No.347, 348, 350 and 351. Normally the question of falling of a small plot of 306 Sq. yards in four survey numbers is not possible, unless the boundary lines of four survey numbers intersect with each other within the suit plot. But as I have

O.S. 946/20026

already held, the plaintiffs failed to file the integrated sketch map of all the above survey numbers to locate the suit property in such integrated sketch map of S.No.347, 348, 350 and 351.

13.In the course of cross examination as to the adjoining survey numbers of the suit plot, P.W.1 added that at present there is a constructed house of Saheb Hussain to the east of suit property and no door number has been assigned to such house. The presence of house of Saheb Hussain to the east of suit property is not mentioned in the plaint schedule. The evidence of P.W.1 is disclosing that he has no personnel knowledge as to where the suit property is located and he is doubtful as to in which survey number the suit property is falling. He has deposed that in conformity on Ex.A1 sale deed without having personnel knowledge as to the location of the suit property.

14.Though the suit property was shown as open plot, during the course of cross examination P.W.1 admitted that there is a sheds in the suit plot having door ways towards north and that one north- south wall is dividing the suit property and the plot of Saheb Hussain.

P.W.1 further added that at the time of filing of suit it was open land and that subsequently he constructed shed and compound wall in the suit property. Construction of shed during pending suit by P.W.1 can not be taken as an exercise of possession over suit plot. Post suit activity over the disputed plot by the parties can not be taken into consideration to count the possession of the parties over the suit property.

15.During the course of cross examination, a rough sketch prepared by defendants, was confronted to P.W.1 and he admitted the same as true and correct and as such the rough sketch is treated as

O.S. 946/20027

part and parcel of deposition of P.W.1. The admitted rough sketch of suit property is disclosing that the suit plot is containing a shed and a north - wall is constituting eastern boundary. The physical features of suit property as admitted by P.W.1 are probabilizing the case of defendants as correct. The plea of the defendants is that D4 and D5 are holding two plots adjoining to each other having door ways towards northern side.

16.Further the plaintiffs did not place any evidence to prove the extent of suit plot. Plaintiffs say that the extent of suit plot is 306.66 Sq. yards, whereas the defendants say such extent as 400 Sq.

yards. Hence the extent of suit plot also assumes significance in proving the right and title of the parties. The plaintiffs could have proved the extent of suit property as 306.66 to tilt the case in their favour.

17.P.W.2, is no other than the brother of plaintiff's vendor.

P.W.2 deposed that his brother namely Saheb Hussain sold 306 Sq.

yards of plot under Ex.A1 to the original plaintiff on 9-3-2002 and delivered the possession of the same. He further deposed that his brother Saheb Hussain has retained the land to the east of the house plot covered by Ex.A1 and that his brother constructed a shed to the east of suit plot. He further deposed that the deceased plaintiff No.1 constructed a shed in her plot and after her death, her husband (P.W.1) let out the same to third parties for rent purpose. He further mentioned that Pingili Janaki Devi has no right in S.No.346 to sell any property to the defendant No.4 and 5 through her GPA holder : Nukala

Raghunatha Reddy.

O.S. 946/20028

18.In the course of cross examination P.W.2 disclosed that his father died leaving behind himself and Saheb Hussain to succeed to the property covered by land in S.No. 346, 347, 348, 350 and 351 of

Waddapally Revenue village. Burt no document has been filed to show the right of P.W.2 and his brother: Saheb Hussain over the land in

S.NO.346, 347, 348, 350 and 351. P.W.2 did not file any sale deed executed by his brother: Saheb Hussain in respect of land in suit survey numbers to show any semblance of right over S.NO.346, 347, 348, 350 and 351 and to lend strength to Ex.A1.

19. On the other hand the pahanies as in Ex.B4 to B15 are showing that land in S.No. 346 was standing in the name of Pingili

Janaki Devi as pattadar and possessor for the years 1976-77 to 1999- 2000. P.W.2 did not choose to file any documents contrary to the pahanies as in Ex.B4 to B15 which are standing in the name of Pingili

Janaki Devi. P.W.2 has mechanically supported Ex.A1 since he has got some vested interest in getting recorded that his family is the owner and possessor of land in S.No. 346, 347, 348, 350 and 351 of

Waddapally Revenue village. Hence the evidence of P.W.2 is not helpful for the plaintiffs to prove that the suit property is situated in

S.No. 347, 348, 350 and 351.

20.P.W.3 is Mason by profession. P.W.3 deposed that he constructed compound wall around the plot in the month of July, 2002 on the instructions of P.W.1. The construction of compound wall by

P.W.1 was not pleaded in the plaint and if at all any compound wall was constructed, it must be during the pendency of the suit. P.W.1 also stated that during pending suit he got constructed a compound

O.S. 946/20029

wall around the plot. The evidence of P.W.3 is silent in which survey number he constructed compound wall and sheds therein.

21.P.W.4, one of the attestor of Ex.A1 deposed taht on 9-3- 2002 Saheb Hussain executed Ex.A1 sale deed in his presence and he was present at the time of execution of sale deed and that the plot was delivered in his presence under Ex.A1. He stated that the plot within the boundaries of Ex.A1 was delivered to the deceased plaintiff in his presence. P.W.4 never said that the land was measured in his presence and that the land covered by Ex.A1 is spreading in S.No.

347, 348, 350 and 351. There is no basis for P.W.4 to say that the plot covered by Ex.A1 is spreading in four survey numbers i.e., S.No. 347, 348, 350 and 351. The evidence of P.W.4 is helpful for the plaintiffs to prove the execution of Ex.A1 sale deed by Saheb Hussain, but nothing else.

22.The evidence of P.Ws.1 to 4 is not proving anything that the plot covered by Ex.A1 is spilling in S.No. 347, 348, 350 and 351.

23.Coming to the evidence of defendants, Defendant No.1 as

D.W.1 has deposed that Defendant No.4 and 5 have purchased each 200 Sq. yards of open plot in S.No. 346 from Pingili Janaki Devi through - her GPA - holder, Nukala Raghunatha Reddy under Ex.B2-A and B3 respectively in the year 1983. He further deposed that plot of

D4 (Pushpavathi) is situated to the east of plot of Defendant No.5 (Kalavathy). Ex.B1-A sale deed standing in the name of Nukala

Raghunatha Reddy reads that plot No. 3 is constituting west boundary and plot NO.5 is constituting eastern boundary to the plot measuring 90 x 40. Ex.B2-A and B3 are proving that such 40 x 90 feet plot was

O.S. 946/200210

divided and sold such 20 x 90 area of 2 plots to D4 and D5 respectively under Ex.B2-A and B3 by Nukala Raghunatha Reddy.

24.The contention of defendants is that the plots of D4 and

D5 are situated in plot NO. 4 and that such plot No.4 is bounded by plot No.5 on east, and plot No.3 on the west, and plot No.14 on the south. The boundaries contained in Ex.B1-A sale deed and the boundaries given in Ex.B2-A and B3 are coinsiding with each other. In other words the plots covered by Ex.B2-A and B3 are fitting within the boundaries given in Ex.B1-A sale deed. It is clear that the plot covered by Ex.B1A was divided into two parts and sold eastern plot (20 x 90) to D4 under Ex.B2-A, and sold western plot (20 x 90) under Ex.B3 to

D5. Ex.B4 to B15 pahanies are showing that Pingili Janaki Devi was the owner and possessor of land in S.No.346.

25.In order to prove the boundaries of plots purchased by

Defendant NO.4 and 5, the defendants have filed Ex.B16 and B17 sale deeds. D.W.4, the owner and possessor of plot No.5 which is situated to the eastern side of plot of Defendant NO.4, has deposed that open plot of Defendant No.4 is situated to the west of his plot and such fact is found in Ex.B17. He further added that Defendant NO.4 and 5 have constructed their sheds in their respective plots and that the plot of

Defendant No.4 was given municipal No. 2-5-525/3 and the plot of

Defendant No.5 was assigned with municipal No. 2-5-525/B. D.W.3 deposed that the plot of Defendant No.5 is situated to the west of plot of defendant No.4, and such fact is found in Ex.B16.

26.D.W.2, the defendant No.4, deposed that she purchased her plot under Ex.B2-A from Nukala Raghunatha Reddy and that she has constructed a shed in his plot. She further deposed that D5 has

O.S. 946/200211

also purchased her plot from Nukala Raghunatha Reddy and that she is in possession and enjoyment of the same. During the course of cross examination two photographs as in Ex.A2 and A3 were confronted to this witness. On seeing Ex.A2 and A3 she stated that some strangers are found standing infront of her shed. Mere presence of persons in the disputed property does not mean that such persons are holding possession over the disputed property.

27.Though the defendants have not filed the approved lay out, the presence of plot covered by Ex.B1-A is proved by filing Ex.B16 and B17 registered sale deed. The boundaries given in Ex.B16 and

B17: the sale deed of third parties, are admissible in evidence to believe the existence of plot covered by Ex.A1. Since the lay out of plots in S.No. 346 was not approved, the property conveyed under

Ex.B1-A, B2-A and B3 are not containing in plot number. However while describing the schedule property the parties have given land numbers instead of plot numbers. However the defendants have proved the existence of plot No.4 or land No.4 in S.No.346 and that such land No.4 or plot No.4 was bounded by plot No.5 to the east and plot No.3 to the west. It is also proved by the defendants that Pingili

Janaki Devi was the owner and possessor of the land in S.No.346 and that Nukala Raghunatha Reddy purchased land No.4 or plot No.4 from the said Pingili Janaki Devi under Ex.B1-A.

28.The evidence of D.W.3 and D.W.4, is proving that the plots of D4 and D5 are situated in between the plots held by D.W.3 and D.W.4. In existence of plots of D.4 and D5 is amply proved by the defendants. It is further proved that the plots of D4 and D5 are situated in S.No.346, but not in S.NO.347, 348, 350 and 351. The

O.S. 946/200212

evidence of plaintiffs is falling short in proving that the suit plot is in

S.No. 347, 348, 350 and 351. Hence the suit of plaintiffs shall fail as the location of suit property has not been proved by them and that the right of Saheb to execute Ex.A1 sale deed is also not proved.

29.This issue is therefore answered in favour of defendants and against the plaintiffs.

ANSWER TO ISSUE NO.2

30.In view of my findings in respect of issue NO.1 the suit is dismissed.

(Dictated to the Personal Assistant, after transcription, corrected and

pronounced by me in the open court on this the 15th day of April,

2013)

II-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS: FOR DEFENDANT :

P.W.1 – MA. Khader D.W.1 D. Laxminarayana P.W.2 - Mohd. Madhar Saheb D.W.2 M. Pushpavathi P.W.3 - K. Karunakar D.W.3 N. Rajarathnam P.W.4 - G. Bhaskar D.W.4 A. Ramesh

EXHIBITS MARKED

FOR PLAINTIFFS :

Ex.A1 is registered sale deed Ex.A2 and A3 : photographs FOR DEFENDANT : Ex.B1 and B2 are photographs Ex.B1-A is the Original registered sale deed, dt: 5-5-1980 Ex.B2-A is the Original sale deed dt: 27-1-1983 standing in the name of D4 Ex.B3 is the original sale deed dt: 27-1-1983 standing in the name of D5 Ex.B4 is the CC of pahani for the year 1976-77 Ex.B5 is the CC of pahani for the year 1977-78 Ex.B6 is the CC of pahani for the year 1979-80

O.S. 946/200213

Ex.B7 is the CC of pahani for the year 1981-82 Ex.B8 is the CC of pahani for the year 1982-83 Ex.B9 is the CC of pahani for the year 1982-83 Ex.B10 is the CC of pahani for the year 1993-94 Ex.B11 is the CC of pahani for the year 1994-95 Ex.B12 is the CC of pahani for the year 1995-96 Ex.B13 is the CC of pahani for the year 1996-97 Ex.B14 is the CC of pahani for the year 1997-98 Ex.B15 is the CC of pahani for the year 1999-2000 Ex.B16 is the CC of sale deed, dt: 8-5-1980 executed by Janaki Devi in favour of D.W.3's mother. Ex.B17 is Certified copy of Registered sale deed, dt: 29-12-1999 pertaining to plot No.5 purchased in the name of D.W.4's wife.

II-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

O.S. 946/200214

O.S. 391/20091

IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE:::

WARANGAL.

Monday the 21st day of March, 2013.

Present:- Sri Y. Govinda Reddy, M.Com., B.L., II Addl. Junior Civil Judge, Warangal.

O.S. No. 391 OF 2009

Between : Vinjamuri Rama Devi …Plaintiff

And

1. Bura Vijay Kumar

2. Bura Veeraswamy

3. Bura Sreenath

4. Bura Harinath …Defendants

This suit coming up before me for final hearing in the presence of Sri Y. Shyam Sunder Reddy, Counsel for Plaintiff, and of Sri P.V. Vidyadhar Rao, Advocate for the defendants and upon perusing the material on record and having the matter stood over for consideration this Court has made the following:

: : J U D G M E N T : :

This suit is for declaration filed by the plaintiff declaring that the plaintiff is owner of the suit schedule plot for permanent injunction retraining the defendants from interfering with the exclusive possession and peaceful enjoyment of the suit schedule plot by the plaintiff and to award costs of the suit.

PER PLAINTIFF:

2.That one Bura Balaraju was the owner and possessor of

Ac.0-20 guntas of land in S.No.623/D, and he executed a registered

GPA in favour of K. Shankar Prasad under document NO. 32/1989. The

GPA holder converted the same into house plots and sold to several persons. That an open plot measuring 336 Sq. yards in S.No.623/D of

Bheemaram village within the plaint schedule boundaries is a suit property. That the plaintiff is wife of late V. Venu Gopala Swamy. The said Late V. Venu Gopala Swamy purchased the suit plot under an

O.S. 391/20092

unregistered agreement of sale, dt: 8-3-1995 for Rs.23,520/- from

Bura Balaraju represented by his GPA holder K. Shankar Prasad. At the time of agreement of sale, dated: 8-7-1995, the plaintiff's husband Late V. Venu Gopala swamy has paid Rs.20,000/- and said remaining sale consideration of Rs.3,520/- on 2-6-1995 and took delivery of possession of suit property. The plaintiff's husband Venu

Gopala Swamy died on 1-12-1995 and on his demise the plaintiff and her children have succeeded to the suit property and gained possession over the suit property. After the death of plaintiff's husband, the plaintiff approached the GPA holder: K. Shankar Prasad and requested him to execute the regular registered sale deed in her favour, and accordingly the GPA holder: K. Shankar Prasad executed a registered sale deed in favour of plaintiff on 5-12-2005 in respect of suit property. The registered sale deed dated: 5-12-2005 reads that the GPA holder K. Shankar Prasad has received entire sale consideration earlier. The defendants have no concern over the suit property. The defendants, being the legal representatives of original pattadar Bura Balaraju, have tried to interfere with the possession of plaintiff over the suit property. On 22-4-2009 when the plaintiff tried to lay foundation in the suit property, the defendants obstructed her.

Hence the suit for perpetual injunction.

PER DEFENDANTS:

3.It is false to say that on 8-3-1995 K. Shankar Prasad, being the GPA holder of Bura Balaraju, has executed an agreement of sale on 8-3-1995 and delivered the possession of the suit property to the husband of plaintiff Venu Gopala Swamy on 2-6-1995. The original pattadar Bura Balaraju did not deliver the possession of the suit

O.S. 391/20093

property to his GPA holder K. Shankar Prasad under GPA No. 32/1989.

When the original owner Bura Balaraju has not delivered the land in suit Sy.No.623/D to his GPA holder Bura Balaraju, the question of delivering the suit property by GPA holder K. Shankar Prasad to the plaintiff's husband does not arise. The D-1 is the son of original pattadar Sri Bura Bala Raju, and D2 to D4 are the sons of D-1. The father of D-1: Bura Balaraju has executed GPA in favour of K.Shankar

Prasad in view of close friendship and confidence in K. Shankar Prasad on 10-4-1989. But the delivery of possession of property was not effected by Bura Balaraju to his GPA holder K. Shankar Prasad. When

K. Shankar Prasad, the GPA holder himself had no possession over the suit property, the question of his delivering suit property to plaintiff's husband under sale agreement dt: 8-3-1995 does not arise. The original owner Bura Balaraju died on 12-4-2004 leaving behind his son (D1) and his grand sons (D2 to D4) who succeeded to the land in suit survey number. The sale deed executed by GPA holder: K. Shankar

Prasad in favour of plaintiff on 5-12-2005, subsequent to the death of

Bala Raju, who died on 12-4-2004, is not valid in the eye of law. There is an inconsistency as to the delivery of property in between in the pleadings of plaintiff, and the recital in the sale deed dated; 5-12-2005 in favour of plaintiff. The plaint averments reads that the suit property was delivered to the plaintiff's husband on 2-6-1995, and the receitals in regd. sale deed in favour of plaintiff reads that delivery was effected on 5-12-2005 to plaintiff. The GPA executed by Bura Balaraju, who died on 12-4-2004, has come to an end on 12-4-2004 and execution of sale deed by GPA holder on 5-12-2005 after the death of

principal(Bura Balaraju) is non-est in the eye of law. In fact the

O.S. 391/20094

defendant No.1 has conveyed 20 guntas of land in suit S.No.623/D in favour of one E. Sammaiah under two regd. GPAs dated: 8-12-2006.

In pursuance of sale-cum-GPA dated: 18-12-2006, the said Sammaiah has sold the property in suit survey number to 1). Challa Raj Reddy, 2)

Manypathi Yadagiri, 3) M. Ilamma, 4) Pulucheru Sudhakar by way of registered sale deeds on 18-7-2007 and delivered the possession of the same to those vendors. The plaintiff is not in possession of the suit property and that the suit for bare injunction without seeking declaration of title is not maintainable.

Hence the suit is liable to be dismissed.

4.Basing on the above pleadings this court has framed the following issues.

1. Whether the plaintiff is entitled to have

declaration of title in respect of suit property.

2. Whether the plaintiff is entitled for perpetual injunction.

3. To what relief?

5.The plaintiff has examined himself as P.W.1 and got marked Ex.A1 to A5. She also examined the GPA holder K. Shankar

Prasad as P.W.2 and one independent person as P.W.3. Ex.A1 is registered sale deed, dt: 5-12-2005 vide document No. 3361/2005.

Ex.A2 is encumbrance certificate obtained by plaintiff. Ex.A3 is CC of

GPA vide document NO. 32/1989 executed by Bura Balaraju in favour of K. Shankar Prasad. Ex.A4 is CC of GPA vide document No. 19/1987 executed by Bura Balaraju in favour of K. Shankar Prasad on 12-3- 1987. Ex.A5 is CC of GPA executed by Bura Balaraju in favour of K.

Shankar Prasad on 10-4-1999.

O.S. 391/20095

6.The defendant No.1 has examined himself as D.W.1 and got marked Ex.A1 to A6. Ex.B1 is death certificate of Bura Balaraju.

Ex.B2 is CC of GPA executed by D1 in favour of Sammaiah vide document No. 4801/2006. Ex.B3 is CC of GPA executed by D1 in favour of Sammaiah on 18-12-2006 vide document No. 4802/2006.

Ex.B4 is CC of sale deed executed by Sammaiah on 18-7-2007 vide document No. 3991/2007, Ex.B5 is CC of sale deed executed by

Sammaiah on 18-7-2007 vide document No. 3993/2007, Ex.B6 is sale deed executed by Sammaiah in fvour of Yadagiri on 18-7-2007 vide document No. 3997/2007.

ANSWER TO ISSUE NO.1

7.The contention of plaintiff is that her husband Venu Gopala

Swamy purchased the suit plot from P.W.2 on 8-3-1995 under an unregistered agreement of sale and took delivery of possession of the suit plot on 2-6-1995 and that after the death of her husband she obtained Ex.A1 registered sale deed in her favour on 5-12-2005 in respect of suit property from P.W.2.

8.Per contra the contention of defendants is that his father, deceased Bura Balaraju executed GPA in favour of P.W.2 on 10-4-1989 in respect of 20 gts., of land in suit survey number; and that since

Ex.A1 sale deed was executed by GPA holder (p.W.2) subsequent to the death of principal: Bala Raju the Ex.A1 sale deed is non-est in the eye of law. Hence the plaintiff shall be non-suited.

9.It is an admitted fact that 20 gts., of land in S.No.623/D originally belongs to Bura Balaraju who is the father of D1 and that he executed a registered GPA in favour of P.W.2 k. Shankar Prasad in respect of 20 gts., of land on 10-4-1989 as in Ex.A3. It is also an

O.S. 391/20096

undisputed fact that the principal: Balaraju died on 12-4-2004. It is also an admitted fact that P.W.2 executed Ex.A1 sale deed on 5-12- 2005 which is subsequent to the death of Balaraju, the principal of

P.W.2.

10.In the light of above admitted facts, now let me examine whether the purchase of suit property by plaintiff's husband from

P.W.2 is legally valid.

11.The plaintiff did not choose to exhibit the unregistered sale deed, dated: 8-3-1995 though she has filed the same in to the court.

The plaintiff did not choose to pay stamp duty and penalty on such unregistered sale deed and as such the same has not been marked.

Hence it can be said that the sale agreement dated; 8-3-1995 under which the plaintiff's husband alleged to have purchased the suit property has not been marked and as such it can be said that the said transaction has not proved. Since the unregistered sale deed, dated:

8-3-1995 is not at all be exhibited, the delivery of possession under the said document can not be presumed to have been effected to the deceased husband of plaintiff.

12.Now let me examine whether the plaintiff has acquired the suit property under Ex.A1 registered sale deed dated: 5-12-2005.

Ex.A1 has been executed by P.W.2 in the capacity of GPA holder of

Bura Balaraju. As on the date of Ex.A1 the principal: Bura Balaraju was no more as he died much prior to Ex.A1. However P.W.,2, a practicing advocate, has boldly declared in Ex.A1 that Bura Balaraju is alive as on the date of Ex.A1. The P.W.2 played fraud on the

Registration Authorities and got nominal Ex.A1 in favour of P.W.1.

Ex.A1 is void abintio since the principal was no more as on the date of

O.S. 391/20097

its execution by P.W.2, the GPA holder. It is settled law that once the

principal dies, the GPA executed by him will come to an end by virtue

of Sec.of contract Act. Though the GPA is not cancelled in writing by principal, such GPA will cease to exist by operation of law with the death of principal. It is for this reason Ex.A1 is not a valid document.

13.The contention of counsel for plaintiff is that P.W.2 had no knowledge about the death of the principal: Balaraju and as such the

Ex.A1 sale deed executed by P.W.2 in bonafied belief that his principal was alive shall not be rendered as void or illegal. He also relied on citation reported in N.R. Srinivas Vs. Madduri Mallareddy and others in 2005(1) ALD 268 and Canvassed that the GPA remains in force unless it is cancelled and notice of such cancellation has been served on GPA holder. The pith and substance of the citation is that " the principal should take some steps either expressive or constructive that the cancellation or termination is made known to the entire world apart from agents and then only he could be ceased of the responsibility, otherwise he holds the responsibility for the third parties for the transaction entered into by the agents".

14.The facts of the reported case and the facts of the case on hand are different for the reasons that in the reported case, the

principal was alive and the GPA was cancelled by the principal, but

such cancellation was not duly and sufficiently communicated to the

GPA holder. But in the present case the principal died and as such the

GPA as in Ex.A3 ceased to exist by virtue of Sec.201 of The Indian

Contract Act. The power of P.W.2 to execute Ex.A1 was terminated with the death of Bura Balaraju. Hence Ex.A1 sale deed executed by

O.S. 391/20098

P.W.2 is invalid in the eye of law and it cannot convey any right to the plaintiff.

15. In the course of cross examination P.W.2 as to death of his principal he stated as : "I did not enquire as to whether my

principal was alive or died on the date of execution of sale agreement

in favour of the plaintiff's husband or on the date of execution of sale deed in the name of plaintiff". There is no legal mandatory on the part of GPA to know whether the principal is alive or died when any transaction is made in respect of property covered by GPA. I came to know that my principal: Bura Balaraju died when the parties in the suit agitated. I executed Ex.A1. There is a declaration in Ex.A1 that my

principal was alive as on Ex.A1. I do not know the exact date of death

of Bura Balaraju. I do not know whether date of death of Bura

Balaraju is 12-4-2004".

16.The perusal of evidence of P.W.2 is disclosed that P.W.2 has made a mechanical declaration before Registering Authorities that his principal: Bura Balaraju was alive as on the date of Ex.A1. P.W.2 being a legal practitioner is not supposed to make such declaration without knowing the purport of such declaration. Making declaration

before public servant without verifying the truthfulness of a fact will

amount to that P.W.2 facilitated fraud on Registering Authority.

17.There is no obligation on the part of D1 to communicate to the P.W.2 as to death of father of D1. The obligation is cast upon

P.W.2 to know whether his principal is alive or died. P.W.2 cannot avoid his obligation by saying that nobody has communicated about the death of Bura Balaraju to him and as such he has no knowledge about the same. It is P.W.2, who is bound to know about such fact by

O.S. 391/20099

resorting to due enquiries and to make declaration before the

Registering Authorities before execution any conveyance deed as a

GPA holder. The willful omission on the part of P.W.2 in making enquires as to the death of Bura Balaraju would suggest that P.W.2 is at fault. The Ex.A1 is not a legally enforceable sale deed as P.W.2 was divested with the Power of deal with suit property on the death of the

principal of P.W.2.

18.For the above discussions I hold that Ex.A1 sale deed in favour of plaintiff is a void document which shall not convey any title or possession to her over the suit property.

ANSWER TO ISSUE NO.2

19.Now let me examine whether the possession of suit property was delivered to plaintiff's husband under an unregistered agreement of sale dated: 8-3-1995 by P.W.2. It is pertinent to mention that the principal: Bura Balaraju did not effect delivery of land in S.No. 623/D to P.W.2 under Ex.A3 GPA. The perusal of Ex.A3 GPA in favour of P.W.2 would disclose that the land in S.No. 623/D was not at all delivered to P.W.2. When the possession of entire land in suit survey number was retained by principal: Bura Balaraju the question of P.W.2 being the GPA holder delivering suit plot to the husband of plaintiff does not arise at all. As I have already held that the sale transaction between the husband of plaintiff and P.W.2 on 8-3-1995 has not been proved since the plaintiff did not choose to cross examine unregistered sale deed dt: 8-3-1995. Hence it can be said that there is no document to document to show that the suit property was delivered to the husband of plaintiff by P.W.2. The evidence of P.W.1 is that the suit property was delivered to her husband during his life time and

O.S. 391/200910

that she obtained Ex.A1 sale deed only as a matter of precaution. It is curious to note that Ex.A1 sale deed does not recite about the existence of unregistered sale deed dated: 8-3-1995 in favour of plaintiff's husband. Ex.A1 reads that the possession of suit property was delivered only under Ex.A1 by P.W.2 to the plaintiff. There is a recital in Ex.A1 sale deed on page No.2 as - " hereafter the vendor shall not have any right, title or interest in the said property and the possession of the suit property has been delivered to the purchaser in pursuance of this deed of sale on this day". This recital conveys a unambiguous meaning the suit property was delivered to plaintiff only under Ex.A1, and there is a crucial variation in the pleadings and

Ex.A1 as to delivery of possession for the reason that in Ex.A1 there is a mention that the suit property was delivered under Ex.A1, but in the plaint it has been mentioned that the suit property was delivered to plaintiff's husband under an unregistered sale deed dated: 8-3-1995.

18.As I have already held that principal: Bura Balaraju did not deliver the property in S.No.163/D to P.W.2 under Ex.A3, the question of P.W.2 delivering the property either to plaintiff's husband or to the plaintiff under Ex.A1 does not arise. Hence I am constrained to hold that no possession of suit property was delivered by P.W.2 under

Ex.A1 to the plaintiff for the above discussions I hold that the plaintiff did not derive any title or possession to the suit property under Ex.A1.

Hence this issue is answered against the plaintiff and in favour of defendants.

19.The plaintiff filed the suit in respect of the property which is found within the following boundaries

East: Open plot of Bharathi West : 20 Feet Road

O.S. 391/200911

North : Plot of others South: Land of vendor.

20.Whereas P.W.1 in the course of her cross examination has disclosed the boundaries of her property as follows: -

East:Open plot of others. West:20 Feet road South:Open plot of Vijay Kumar North : Plot of Bharathi.

21.The boundaries of plaint schedule property are no compatible with the property claimed by P.W.1. When there is no certainty as to the identity of the disputed property and when the plaintiff is not sure about the location of disputed property, it can be said that the plaintiff's case is doubtful. It is settled law that the possession over an open house plot is presumed to have follow with title. Since the house plot is not capable of being possessed physically. its possession shall be proved by showing several instances of exercise of possession, such as digging of trenches, levelling of land, construction of compound wall, tethering of cattle, leasing out to third parties, construction of shed, laying of a bore well, raising of crops or some of the instances which will prove the possession of plaintiff over the suit property. But in the present case no such instances has been pleaded and proved by the plaintiff to show her possession over the suit property. Absolutely there is no document except Ex.A1 to claim the possession over the suit property by the plaintiff. I have already held that Ex.A1 is a void document which was executed by a person of no legal competency, such document cannot be relied on by the plaintiff to prove her possession over the suit property. Hence I have no hesitation to record that the plaintiff has miserably failed to prove her possession over the suit property.

O.S. 391/200912

This issue is answered in favour of defendants against against the plaintiff.

ANSWER TO ISSUE NO.3

22.In view of my finding in respect of issus NO.1 and 2 the suit is hereby dismissed.

(Dictated to the Personal Assistant, after transcription, corrected and

pronounced by me in the open court on this the 21st day of March,

2013)

II-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS: FOR DEFENDANT :

Pw.1 – V. Ramadevi D.W.1 B. Vijay Kumar P.W.2- K. Shankar Prasad P.W.3 - Narsimha murthy

EXHIBITS MARKED

FOR PLAINTIFFS : Ex.A1 is registered sale deed, dt: 5-12-2005 vide document No. 3361/2005. Ex.A2 is encumbrance certificate obtained by plaintiff. Ex.A3 is CC of GPA vide document NO. 32/1989 executed by Bura Balaraju in favour of K. Shankar Prasad. Ex.A4 is CC of GPA vide document No. 19/1987 executed by Bura Balaraju in favour of K. Shankar Prasad on 12-3-1987. Ex.A5 is CC of GPA executed by Bura Balaraju in favour of K. Shankar Prasad on 10-4-1999. FOR DEFENDANT : Ex.B1 is death certificate of Bura Balaraju. Ex.B2 is CC of GPA executed by D1 in favour of Sammaiah vide document No. 4801/2006. Ex.B3 is CC of GPA executed by D1 in favour of Sammaiah on 18-12-2006 vide document No. 4802/2006. Ex.B4 is CC of sale deed executed by Sammaiah in favour of third party on 18-7-2007 vide document No. 3991/2007, Ex.B5 is CC of sale deed executed by Sammaiah in favour of third party on 18-7-2007 vide document No. 3993/2007, Ex.B6 is sale deed executed by Sammaiah in fvour of Yadagiri on 18-7-2007 vide document No. 3997/2007

II-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

O.S. 1600/20041

IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE:::

WARANGAL.

Tuesday the 9th day of April, 2013.

Present:- Sri Y. Govinda Reddy, M.Com., B.L., II Addl. Junior Civil Judge, Warangal.

O.S. No. 1600 OF 2004

Between : Paka Kamalamma …Plaintiff

And

1. Modem Veeramallu

2. Modem Yellamma

3. Modem Sadanandam

4. J. Sareetha …Defendants

This suit coming up before me for final hearing in the presence of Sri K. Narsimha Rao, Counsel for Plaintiff, and of Sri K.P. Eshwarnath, Advocate for the defendants and upon perusing the material on record and having the matter stood over for consideration this Court has made the following:

: : J U D G M E N T : :

This is a suit filed by the plaintiffs against the defendants seeking permanent injunction restraining the defendants their agents, servants and workmen etc, from any way interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and to award costs of the suit.

PER PLAINTIFF:

2.That the open plot measuring 300 square yards in

S.No.508 within the plaint schedule boundaries in Rama Krishna

Colony, Waddapelly Revenue village, Hanamkonda mandal, is the suit property. The lands in S.No.508 originally belongs to Modem Saianna @ Sayeb S/o Naryana who executed General Power of Attorney in favour of Chirra Mogili under a registered GPA No.191/1983 on 19-10-1983. The said Modem Saianna has sold the suit property to the

O.S. 1600/20042

plaintiff through his GPA holder Chirra Mogili under a registered sale deed No. 707/1984 on 7-4-1984 and delivered the possession of the same to the plaintiff. But in the said registered sale deed No. 707/84, the GPA number was wrongly incorporated as 64/84 instead of 191/1983. The plaintiff has been in possession and enjoyment of the suit property not withstanding the incorrect mention of GPA number in sale deed No. 707/1984. The defendant No.1 has also executed one registered GPA in favour of the said Chirra Mogili, GPA No. 78/1983 on 9-5-1983, in respect of lands covered by S.No. 493, 494, 507 and 508 of Waddapally Revenue village. The said Chirra Mogili on the strength GPA No. 78/83 has sold the lands in S.No.493, 494, 507 and 508 to third parties and such third parties are in possession and enjoyment of the house plots in S.No.493, 494, 507 and 508. The defendant No.2 is wife of defendant No.1 and D3 to D5 are LRs of D1 who died during pending suit. The defendants have tried to trespassed into the suit plot on 26-6-2004 and as such the plaintiff was constrained to file this suit for perpetual injunction.

PER DEFENDANTS:

3.It is false to say that the plaintiff purchased the suit property under registered sale deed No.707/1984 from Modem

Saianna represented by GPA Chirra Mogili and took possession of the suit property. In fact the GPA number 64/84 as mentioned in registered sale deed in favour of the plaintiff, is not correct and such wrong mention of GPA number in the sale deed of plaintiff is fatal and the sale deed in question can not convey any valid title to the plaintiff in respect of suit property. Though the plaintiff has not acquired any right, title or possession over the suit property, the plaintiff is trying to trespass in to the land in S.No.494/C under mistaken impression in

O.S. 1600/20043

search of her property. The defendants are holding land in S.No.

494/C. The plaintiff who is claiming right over the house plot in

S.No.508 is trying to encroach upon the property which is part and parcel of land in S.No.494/C. The suit property is not situated in

S.No.508, but it is part and parcel of 494/C. The sale deed in favour of plaintiff vide document No. 707/84 is void document as it was executed by Chirra Mogili without proper power. Hence the plaintiff cannot acquire any rights under such invalid sale deed. Defendant

No.1 has executed GPA vide document No. 78/83 in favour of Chirra

Mogili in respect of land in S.No. 493, 494, 507 and 508 IPC. But

Chirra Mogili did not sell any land in the capacity of GPA holder of defendant NO.1. At later point of time the GPA No. 78/83 in favour of

Chirra Mogili was cancelled by way registered document No. 62/85.

The cause of action pleaded is invented. The suit is liable to be dismissed.

4.Basing on the above pleadings this court has framed the following issues.

1.Whether the plaintiff is entitled for the relief of

perpetual injunction in respect of suit property?

2. Whether the boundaries of suit land are incorrect?

3. To what relief ?

5.The plaintiff No.1 has examined herself as P.W.1. Since the plaintiff is an old aged person, she has examined her son as P.W.2 and got marked Ex.A1 to A9. Plaintiff has also examined her vendor Chirra

Mogili as P.W.3. Ex.A1 is registered sale deed in favour of plaintiff vide document No. 707/84. Ex.A2 is rectification sale deed dated: 3-11- 2006 by mentioning the correct GPA number as 191/83. Ex.A3 is CC of

GPA No. 78/83. Ex.A4 to A7 are pahanies Ex.A8 is encumbrance

O.S. 1600/20044

certificate dated 1-1-1983 Ex.A9 is copy of FIR. On the other hand defendant No.2 has examined herself as D.W.1 and got marked Ex.B1 to B5 on her behalf. Ex.B1 is CC of GPA No. 78/83 executed by D1 and another in favour of Chirra Mogili. Ex.B2 is encumbrance certificate

dated 16-5-1985, Ex.B3 is cancellation of GPA dt: 30-4-1985. The

husband of D5 is examined as D.W.2, and got marked Ex.B4: death certificate of Modem Saianna and Ex.B5 : CC of Commissioners report in O.S.545/2004.

6.Now let me answer the issues basing on the above oral and documentary evidence. The admitted fact is that Modem Sailu executed GPA No. 191/1983 in favour of Chirra Mogili. It is also an admitted fact that the defendant No.1 (Veeramallu) also executed one registered GPA No. 78/83 in favour of Chirra Mogili.

ANSWER TO ISSUE No.1 AND 2:

7.The contention of plaintiff is that she purchased the property under Ex.A1 on 7-4-1984 from Modem Saianna represented by GPA holder by name Chirra Mogili and that he has been in possession and enjoyment of the same. The further contention of plaintiff is that since there was a clerical mistake with regard to registration number of GPA in Ex.A1 sale deed, such mistake was rectified and Ex.A2 rectification sale deed was obtained from Chirra

Mogili, mentioning the correct registration number of GPA as 191/83 in the place of incorrect GPA No. 64/84.

8.Per contra the contention of defendants is that Ex.A1: sale deed is par-se invalid in the eye of law, since there is wrong mention as to GPA number in it; and that the rectified sale deed as in Ex.A2 during pending of the suit cannot cure the defect. The further contention of defendant is that as on the date of Ex.A2 i.e., on 3-11-

O.S. 1600/20045

2006 the principal: Modem Saianna S/o Narayana was no more and as such the GPA in document No.191/83 came to an end with the death of principal and Ex.A2 rectification deed dt: 3-11-2006 is subsequent to the death of the Principal: Modem Sayanna and as such Ex.A2 is an invalid document which can not be looked into.

9.Admittedly there is a wrong mention of GPA in Ex.A1 sale deed since the incorrect GPA No. 64/84 was mentioned instead of GPA

No. 191/83. However such mistake was rectified by Ex.A2 rectification deed on 3-11-2006. But as on 3-11-2006 the principal of Chirra Mogili by name Modem Saianna was no more as he died on 29-11-1988 as per Ex.B4 death certificate. Since Ex.A2 sale deed was executed by

Chirra Mogili: GPA holder after the demise of the principal, Ex.A2 is not valid in the eye of law. Sec. 201 of Indian Contract Act provides that the agency between the principal and agent will come to an end with the death of either principal or agent. Now that the principal Modem

Saianna died on 29-11-1988, the execution of Ex.A2: rectification sale deed rectifying the GPA registration number by agent Chirra Mogili on 3-11-2006 is not valid.

10.The crucial documents i.e., Ex.A1 and Ex.A2, which are relied on by the plaintiff are not legally valid documents. Since the claim of plaintiff is based on the invalid document, the plaintiff cannot succeeded on the strength of those invalid documents.

11.Now let me examine whether there is any oral evidence to prove the existence of suit plot and the possession of plaintiff over such suit plot. The defendants are seriously contending that the suit plot is part and parcel of S.No. 494/C, but not 508 as contended by plaintiff. In order to prove the existence of suit plot and possession of

O.S. 1600/20046

plaintiff over the suit plot she has examined P.Ws.1 to 3. Now let me evaluate the oral evidence of P.Ws.1 to 3.

12.P.W.1, the plaintiff stated that her son is well versed with facts of the case and that she cannot depose anything due to her old agedness.

13.P.W.2, the son of P.W.1 deposed in chief examination in consonance with the plaint allegations. In the course of cross examination he has admitted that there is a wrong mention as to GPA in Ex.A1 sale deed. He further deposed that nearly 30 to 40 plots were laid by GPA holder (Chirra Mogili) and sold to several persons.

Admittedly the lay out of plots has not been approved by either local

Grampanchayath or Municipality. Even the unapproved lay out plan has not been filed into the court to prove the location of suit plot.

When the plaintiff proposed to prove the existence of disputed plot, which is in unapproved lay out, the only course left to the plaintiff is that he has to examine the boundary owners of disputed plots and to file the sale deeds pertaining to adjoining plots. But in the present case the plaintiff did not choose to file the sale deed pertaining to his boundary owners. In the absence of such sale deeds and in the absence of evidence of boundary owners of suit plot, it is very difficult to visualize the existence of suit plot. In view of deficiency in the evidence of plaintiff, I am constrained to record that the plaintiff has not proved the location of suit plot and her possession over thereof.

14.The plaintiff has also examined Chirra Mogili the executent of Ex.A1 and A2, who deposed that he sold the suit plot under Ex.A1 to plaintiff on 19-10-1983 and that the plaintiff has been in possession of the suit plot, ever since the date of purchase. In the course of cross examination he stated that he executed about 40 sale deeds in the

O.S. 1600/20047

capacity of GPA and that his principal Modem Saianna sold all those plots to several persons and asked him to execute sale deeds, and accordingly he executed registered sale deeds. He further added that he is having custody of plotting map and that he can file the same into the court. Having stated so, P.W.3 did not choose to file plotting map into the court. The evidence of P.W.3 is disclosing that he executed Ex.

A1 and A2 in favour of plaintiff, but nothing else. P.W.3 failed to mention the boundaries of suit plot and the location of plot which he sold to P.W.1. The evidence of P.W.3 is not helpful in any manner in proving the sale of suit plot and possession of plaintiff over the suit plot. Coming to the evidence of D.W.1, she admitted that the plaintiff's plot is in S.No.508, and his property is in S.No.494/C. Such admission of D.W.1 can not be taken to understand that the suit plot is within the plaint schedule boundaries. D.W.1 further admitted that houses have come up around the suit plot. But the boundary house owners of suit plot were not examined to speak about the possession of plaintiff over the suit plot. The specific instances involving the exercise of possession by plaintiff hve not been pleaded and proved. Ex.A1 sale deed shall not be the basis to draw legal presumption that the possession of land is followed by title, since Ex.A1 was already held as invalid.

15.The oral evidence placed by the plaintiff is running short to believe the possession of the plaintiff over the suit property.

16.For the above discussions, I hold that the plaintiff failed to prove her possession over the suit property. This point is therefore answered against the plaintiff and in favour of defendant.

ANSWER TO ISSUE NO.3:

O.S. 1600/20048

17. In view of my findings in respect of issues No.1 and 2, the suit of the plaintiff is dismissed with costs.

(Dictated to the Personal Assistant, after transcription, corrected and

pronounced by me in the open court on this the 9th day of April, 2013)

Sd/-

Smt. V. Sarada Devi

II-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS: FOR DEFENDANT :

P.W.1 – Paka Kamalamma D.W.1 Modem Yellamma P.W.2 - Paka Venkateshwarlu D.W.2 Julluri Srinivas P.W.3 - Chirra Mogili

EXHIBITS MARKED

FOR PLAINTIFFS :

Ex.A1 is registered sale deed in favour of plaintiff vide document No. 707/84. Ex.A2 is rectification sale deed dated: 3-11-2006 by mentioning the correct GPA number on 3-11-2006 Ex.A3 is CC of GPA No. 78/83 executed by D1 and others in favour of Chirra Mogili Ex.A4 to A7 are pahanies Ex.A8 is encumbrance certificate dated 1-1-1983 Ex.A9 is copy of FIR.

FOR DEFENDANT :

Ex.B1 is CC of GPA executed by D1 and another in favour of Chirra Mogili, vide document No. 78/83 (=Ex.A3) Ex.B2 is encumbrance certificate dated 16-5-1985, Ex.B3 is cancellation of GPA dt: 30-4-1985 under which Ex.B1 was cancelled. Ex.B4 is death certificate of Modem Saianna Ex.B5 is CC of Commissioners report in O.S.545/2004.

Sd/-

Smt. V. Sarada Devi

II-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.

IN THE COURT OF THE II -ADDL. JUDICIAL MAGISTRATE OF I-

CLASS, WARANGAL

Thursday, the 21 st day of March, 2013

PRESENT : Sri Y. Govinda Reddy, B.Com, B.L ., II Addl. Judl. Magistrate of I. Class, Warangal.

CALENDER CASE NO. 110 of 2011

Between :

The State of A.P. represented through The Sub Inspector of Police, P.S. Kazipet (tr)

...Complainant

And

Nallamalli Sunil Kumar, S/o Soma Sundaram 46 yrs., Christian, H.No.6-1-56 Kancharakunta, Hanamkonda, Driver Indica Car AP 10-AF 5432

.. Accused

This case coming up for final hearing before me in the presence of Learned Asst. Public Prosecutor for the state and of Sri J.

Jeevarathanam Counsel for the accused and the matter having stood over for consideration till this day, this court delivered the following:

: : J U D G M E N T : :

The Sub-Inspector of Police, P.S. Kazipet filed charge sheet against the accused in crime No. 149/2010 for the offences punishable U/s.338 IPC and Sec. 181, 196, 190(ii) of MV Act.

2.The brief facts of the case of the prosecution are as under:-

That on 3-12-2010 the injured Javeed was travelling on his motor cycle bearing No. AP 36 T/R towards his college from his house.

When he reached near Gowthami Model Public School in Nakkalagutta area, the crime Indica Car bearning No. AP 10 AF 5432 came in opposite direction in high speed and hit the motor cycle of injured

C.C.110 / 2011 2

Javeed. The injured: Javeed fell down and sustained severe injury to his right thigh. This incident was witnessed by Naresh Kumar (P.W.3).

L.W.3: Naresh Kumar informed about the occurrence to the father of injured over cell phone. Then the father of injured Siraj Pasha reached the spot and shifted the injured person to Rohini Hospital and lodged

Ex.P.1 complaint. The Doctor in Rohini Hospital gave treatment to injured: Javeed and opined that the injury was grievous in nature as there was a fracture of right femur bone. The police registered the complaint of Siraj Pasha as Cr.No. 149/T-458/2010 under Sec. 337

IPC. During the course of investigation the police examined the witnesses and recorded their statements. The police have visited the scene of offence and prepared Crime Detail Form in the scene of offence. While so L.Ws.7 N. Rajenderam S.I of police arrested the accused on 31-1-2011 when he surrendered before the police station.

L.W.7 S.I of Police forwarded the accused to judicial remanded and filed charge sheet after completion of investigation. Hence charge for the offence under Sec. 338 IPC, 181, 196 and 190(ii) MV Act.

The case was taken on file for the offence under Sec. 338 IPC and Sec. 181, 196 and 190(ii) MV Act. On appearance of the accused copies were furnished under Sec. 207 Cr.P.C. The accused was examined under Sec. 251 Cr.P.C. and the incriminating material was put to him. The accused denied the same and claimed to be tried.

The prosecution examined P.W.s1 to 7 and got marked Ex.P1 to

P4. P.W.1 is father of injured and he is defacto complainant. P.W.2 is injured, P.W.3 is an eye witness to the occurrence. P.W.4 is Doctor who gave treatment to P.W.2. P.W.5 is panch witness for Crime Detail form

P.W.6 is S.I. of Police filed charge sheet P.W.7 is S.I. of Police who

C.C.110 / 2011 3 conducted investigation. Ex.P1 is complaint of P.W.1 Ex.P2 is medical certificate issued by P.W.4 Ex.P3 is Crime Detail Form Ex.P4 is FIR.

After closure of the evidence, the accused was examined under

SEc. 313 Cr.P.C., and the incriminating material was put to him. The accused denied the truth in the evidence of prosecution and reported no defence.

Heard both the sides.

Point: Whether the accused being the driver of indica Car bearing No. AP 10 AF 5432 drove his car in rash and negligent manner and hit P. W. 2 on 3-12-2010 at

8.00 a.m.,near Gowtham Model School, Hanamkonda

and thus committed an offence under Sec. 338 IPC?

ANSWER TO POINT:

In order to prove the case of the prosecution it has examined

P.Ws.1 to 7. Now let me evaluate the evidence of prosecution.

P.W.1 deposed that on 3-12-2010 at 8. a.m., while he was in his office he received a phone call from P.W.3 that his son (P.W.2) met with an accident near Gowtham Model school. He further added that he rushed to the scene of offence, noticed the Indica car in the scene of offence along with the accused. Ex.P1 is the complaint lodged by him on the next day.

The evidence of this witness is of no avail for the prosecution since he has not witnessed the occurrence.

P.W.2 the injured person deposed that on 3-12-2010 at about 8.00 a.m., he was travelling on motor cycle and that when he reached near Gowtham Model school, Nakkalagutta the crime vehicle Indica

Car came in opposite direction and hit his motor cycle, and as a result he suffered fracture injury to his right thigh. He further added that the accused was responsible for the occurrence since the accused was

C.C.110 / 2011 4 maintaining high speed.

In the cross examination he stated that at the time of occurrence the road in the scene of offence was under repair and the traffic was moving on the other side of road-divider. The scene of offence is admittedly a busy locality having Gowtham Model School, Hospitals and several offices. When the entire traffic was directed to move only on half of the road, there is no chance for the accused to move his car in high speed. P.W.2 has categorically admitted that at the time of occurrence, the road in the scene of offence was under repair and the traffic was moving very slowly due to heavy traffic. When such is the case the question of accused moving in high speed does not arise.

Now let me examine the evidence of P.W.2 as to whether the accused was neglect in driving the crime vehicle. The evidence of

P.W.2 is not disclosing anything that the accused was negligent in his driving. In order to attribute negligence to the driver of the crime vehicle in road accident, the eye witness shall narrate the manner in which the accused was negligent. The bald statement that the accused came in opposite direction and hit the motor cycle of P.W.2 alone is not sufficient to hold that the accused was negligent. It requires some more evidence, but P.W.2 did not narrate in his evidence as to how the accused was negligent. The vehicle is meant for moving briskly with high speed in order to reach the destination quickly. A bald statement that the accused was coming in a high speed at the time of occurrence cannot be regarded as negligent. It requires more than that. P.W.2 failed to mention as to whether he was moving in left side part of the road or on the middle part of the road or was crossing the road.

Likewise P.W.2 failed to mention the course of movement of the crime

C.C.110 / 2011 5 vehicle. Hence the evidence of P.W.2 is not sufficient to fasten the crime liability to the accused.

P.W.3: an eye witness to the occurrence deposed that on 3-12- 2010 at 8.a.m., while he was going to his college in an auto, on the way he notice a large gathering in front of Gowthami Model School, got down from the auto and noticed P.W.2 with injures and immediately he informed about the occurrence' to P.W.1; and shifted the injured to Rohini hospital. He further mentioned that the accused was driver of crime car bearing No. AP10 AF 5432 and that P.W.2 was going on motor cycle. The evidence of P.W.3 is strongly suggesting that he reached the scene of offence after the occurrence since he got down from the auto on noticing the gathering in the scene of offence.

P.W.3 never said that he saw the crime vehicle while hitting the motor cycle of P.W.2. In the course of cross examination of P.W.3 it has been elicited that he (P.W.1) stated before the police that he was standing in the bus stop near Gowthami Model School at the time of occurrence.

Hence there is a serious contradiction in the evidence of P.W.3 since he stated before the police that he was standing in the Bus stop near

Goutham School at the time of occurrence; but he stated before this court that he got down from the running Auto on noticing gathering in the scene of offence. Normally a school going boy will not get down from the Auto on seeing gathering of unknown persons on the road.

The evidence of P.W.3, in my opinion is not sufficient to fasten criminal liability. P.W.4 Arthopedic Surgeon of Rohini Hospital deposed that on 3-12-2010 he examined P.W.2 and found fracture of shaft femur right bone, which is grievous in nature and that Ex.P.2: is wound certificate issued by him. His evidence has prove the injury on the person of

C.C.110 / 2011 6

P.W.2.

P.W.5 panch witness to Ex.P3 Crime Detail Form stated that the police prepared an observation panchanama in his presence in the scene of offence on 4-12-2010 at 4.30 p.m., I have consulted Ex.P3 crime detail form and the rough sketch drawn in the scene of offence.

Ex.P3 is disclosing that Gowthami Model School and kids Hospital are situated by the side of road and the road is divided by road dividers and that the other part of road was in repair. Ex.P3 and the evidence of P.W.5 are not clinching the issue. Sometimes though the witnesses failed to mention the things presented in the scene of offence, the rough sketch may explain the actual disposition of several things in the scene of offence, and the pictorial description of crime scene will explain the court as to how accident occurred. But in the present case

Ex.P3 is not suggesting anything to draw the conclusion as to which of accused was wrong. Ex.P3 suggests that both the accused and

P.W.2(injured) were moving in diagonally opposite direction soon after the occurrence.

P.W.6 is S.I of police who filed charge sheet after verifying the investigation done by P.W.6. P.W.7 deposed that on the day of occurrence he received Ex.P1 from P.W.1 and issued Ex.P4 FIR. Further stated that he visited the scene of offence and prepared

Ex.P5(=Ex.P3) CDF and that he visited the Rohini hospital and examined the injured person and P.W.3. The evidence of this witness is only a circumstantial and the material gathered by P.W.7 is not disclosing anything that the accused was negligent or rash at the time of occurrence.

While evaluating the evidence of P.Ws.2 and 3 I have observed

C.C.110 / 2011 7 that their evidence is not helpful for the prosecution to bring home the guilty of the accused. Hence I am constrained to record that prosecution failed to bring home the guilty of accused.

As a result, the accused is acquitted under Sec. 255(1) Cr.P.C. of offence under Sec. 338 IPC and Sec. 181, 196, 190(ii) of MV Act. The accused bail bonds shall stands cancelled after expiry of appeal time.

(Dictated to the Personal Assistant, after her transcription, corrected and pronounced by me in the open court, on this the 21th day of March, 2013)

II ADDL. JUDL.MAGISTRATE OF I. CLASS

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENCE :

P.W.1 : Syed Siraj Pasha, Complainant - None - P.W.2 :Javeed Injured P.W.3 : Naresh Kumar Eye witness P.W.4 : P. Vijay Chander ReddyDoctor who treated P.W.2 P.W.5: JahangeerPanch witness P.W.6: N. RajendramS.I of Police AP Transco P.W.7: M. SuryanarayanaS.I of Police who filed charge sheet.

EXHIBITS MARKED

FOR PROSECUTION : FOR DEFENCE :

Ex. P1. Complainant filed by P.W.1-Nil- Ex. P2. Wound certificate issued by P.W.4 Ex. P3. Crime Detail Form Ex. P4. FIR Ex. P5. CDF.

MATERIAL OBJECTS

FOR PROSECUTION : FOR DEFENCE :

-Nil- - NIL –

II ADDL. JUDL.MAGISTRATE OF FIRST CLASS

WARANGAL

C.C.110 / 2011 8

:: CALENDER EXTRACT ::

IN THE COURT OF THE II ADDL. JUDL.I-CLASS MAGISTRATE ::

WARANGAL

1. Number of the Calendar Case : C.C.NO.110/2011

2. Name of the Police Station: P.S. Kazipet (tr)

a) Nature of offence : U/s. 338IPC and 181, 196, 190(ii) MV Act

b) F.I.R.No.: Cr.No.149/2010

3. DESCRIPTION OF THE ACCUSED:

Nallamalli Sunil Kumar, S/o Soma Sundaram 46 yrs., Christian, H.No.6-1-56 Kancharakunta, Hanamkonda, Driver Indica Car AP 10-AF 5432

4. DATE OF : -

a) Occurrence: 3-12-2010

b) Complaint: 4-12-2010

c) Apprehension of Accused: 31-1-2011

d) Release of accused on bail: 31-1-2011

e) Commencement of Trial: 21-6-2012

f) Closure of Trial : 28-2-2013

g) Judgment : 21-3-2013

5. RESULT OF THE CASE: IN THE RESULT, the accused is acquitted under Sec. 255(1) Cr.P.C. of offence under Sec. 338 IPC and Sec. 181, 196, 190(ii) of MV Act. The accused bail bonds shall stands cancelled after expiry of appeal time.

6. Explanation for delay: The case was taken on file on 26-8- 2011, Accused examined U/s.251 Cr.P.C, on 18-11-2011, Prosecution evidence commenced on 21-6-2012 and closed on 28-2-2013. Accused examined U/s.313 Cr.P.C, on 7-3-2013, Arguments heard on 8-3-2013, and judgment pronounced on 21-3-2013

II-ADDL. JUDL. I. CLASS MAGISTRATE

WARANGAL.

Copy submitted to The Hon’ble I-Addl. District and Sessions Judge, Warangal.

O.S. 931/20091

IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE:::

WARANGAL.

Monday the 18th day of March, 2013.

Present:- Sri Y. Govinda Reddy, M.Com., B.L., II Addl. Junior Civil Judge, Warangal.

O.S. No. 931 OF 2009

Between :

1. Emmadi Iyalaiah

2. Emmadi Kanakaiah

3. Emmadi Yadagiri …Plaintiff

And

Kandukuri Mallaiah @ Maale Mallaiah …Defendants

This suit coming up before me for final hearing in the presence of Sri J. Laxman Rao, Counsel for Plaintiff, and of Sri K.P. Eshwar Nath, Advocate for the defendant and upon perusing the material on record and having the matter stood over for consideration this Court has made the following:

: : J U D G M E N T : :

This is a suit filed by the plaintiffs against the defendant seeking permanent injunction restraining the defendant his agents, servants and workmen etc, from any way interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and to award costs of the suit.

PER PLAINTIFF:

2.That the plaintiffs NO.1 to 3 are the sons of late Emmadi

Komuraiah who belongs to Schedule Caste. The said Emmadi

Komuraiah was making his livelihood through agriculture. He had no landed property at all. Considering the poverty of landlessness of

Emmadi Komuraiah, the Government of Andhra Pradesh has accorded patta in respect of 30 gts. of land in S.No.88/15 under patta certificate

No. D2/10307/78 through G.O.Ms.No. 1406 dated: 26-7-1958. The said Emmadi Komuraiah was cultivating the said land personally by raising crops. The said 30 gts. of land within the plaint schedule

O.S. 931/20092

property is the suit property. While so the Mandal Revenue Officer has issued Ryithu Pass Book in the year 1985-86 in the name of Emmadi

Komuraiah in respect of suit land. The plaintiffs' father Emmadi

Komuraiah died leaving behind plaintiffs No.1 to 3 as his legal heirs who succeeded to the suit property and they have been cultivating the suit land. Thus the plaintiffs got the suit property from their father and they have been in possession and enjoyment of the same. The plaintiffs have made an application to Grampanchayat seeking construction permission for construction of compound wall around the suit property. But the said application was returned by the

Grampanchayat. The defendant, who has no manner of right, has got muscle power in the village and he is trying to encroach upon the suit property. The plaintiffs are of depressed community who have no commensurate strength to withstand the onslaughts of defendant. On 18-8-2009, the defendant tried to encroach the suit property and hence the present suit is laid for seeking permanent injunction.

PER DEFENDANT :

3.It is false to say that the property situated within the plaint schedule boundaries measures 30 gts. It is false to say that the plaintiffs' father was holding 30 gts of land in S.NO.88/15 and after his death, the plaintiffs got the suit property. The property of plaintiffs is situated in some other place but not within the plaint schedule boundaries. The plaintiffs are trying to encroach the land of defendant in S.No.88/23 under a mistaken identity as to their property. In fact the defendant is one of the alloties of land in S.No. 88 of Gopalpuram village and that his land was denoted as S.No. 88/23 this defendant has been in possession and enjoyment of the land even as on today.

This defendant has filed suit against third parties in O.S. 63/2005 on

O.S. 931/20093

the file of II-Addl. Junior Civil Judge's Court, Warangal and the same was transfered on administrative ground to V-Addl. Junior civil Judge's court, Warangal and the same is pending. Since several houses have come up around the suit survey number, the value of the property gone up. One 100 feet road was also laid through the said survey number 88 and the land of plaintiff was considerably effected and as such the plaintiffs are holding less than 30 gts. of land, and the claim of plaintiffs is excessive. The claim of plaintiffs over the land with in the plaint schedule boundaries is incorrect. Hence the suit is liable to be dismissed.

4.Basing on the above pleadings this court has framed the following issues.

1. Whether the plaintiffs are entitled

for permanent injunction?

2. To what relief?

5.The plaintiffs have examined P.Ws.1 and 2 and got marked

Ex.A1 to A3. P.W.1 is plaintiff No.1 and P.W.2 is plaintiff No.3. Ex.A1 is copy of application submitted to Grampanchayat seeking construction permission. Ex.A2 is true copy of patta certificate Ex.P3 is rythu pass book. On the other hand defendant was examined himself as D.W.1 marked no documents. Now let me answer the above issues basing on the above oral and documentary evidence.

ANSWER TO ISSUE NO.1

6.The contention of plaintiffs is that they got 30 gts., of land within the plaintiff schedule boundaries from their father who got patta under Ex.A2 in respect of suit property.

7.Per contra the contention of defendant is that the area of land within the plaintiff schedule boundaries is more than 30 gts., and

O.S. 931/20094

the plaintiffs land is not situated within the plaint schedule boundaries.

The further contention of defendant is that the plaintiffs are trying to grab the property of the defendant under the mistaken identity as to the suit property.

8.The plaintiff No.1 has entered into the witness box and reiterated the contents of plaintiff. but in the course of cross examination he admitted as :- " I say the length and breadth of suit property. It measured 80 x 90 yards approximately. A portion of such plot was occupied by the road. 12 gts of land is occupied by the road.

I filed the suit. After excluding the piece of land occupied by the road.

I filed the suit for 18 gts., of land". When this evidence is read in juxtaposition with plaint schedule it is disclosed that the plaintiffs' claim is excessive. The oral evidence of P.W.1 reads that his claim is only in respect of 18 gts., of land. But the plaint schedule reads that his claim is for 30 guntas of land. Hence it is evident that the plaintiffs are trying to grab the property of others with false boundaries by claiming excessive area than what they were entitled to.

9.P.W.2 has deposed in his cross examination as: " Out of 30 gts. 12 gts. of land occupied by the road. The suit land is situated half a kilometer from Kunta shikham. I filed the suit for 30 gts., of land, though 12 gts., of land is occupied by road from out of 30 gts.,. ... The boundaries given in plaint schedule are related to 30 gts., of land". This piece of evidence of P.W.2 is rendering the claim of plaintiffs as unjust and excessive. The admission of P.W.2 that he filed the suit in respect of 30 gts., of land though he was entitled for 18 gts., is cutting the grass roots of case of plaintiffs and rendering the plaintiffs to be bad.

O.S. 931/20095

10.Though the defendant has not filed any document he has destroyed the case of plaintiff in the course of cross examination. The evidence of defendant has no bearing on the result of the suit since

P.Ws.1 and 2 have unequivocally stated that they are claiming 30 gts., of land though they are entitled to 18 gts., of land.

11.As a result, I have no hesitation to record that the plaintiffs claim is ill conceived. Therefore the issue is answered against the plaintiffs and in favour of the defendant.

ANSWER TO ISSUE NO.2

In view of my findings in respect of issue No.1 the suit is dismissed with costs.

(Dictated to the Personal Assistant, after transcription, corrected and

pronounced by me in the open court on this the 18th day of March,

2013)

II-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS: FOR DEFENDANT :

Pw.1 – Emmadi Iylaiah D.W.1D. Mallaiah @ Maale Mallaiah P.W.2- Emmadi Yadagiri

EXHIBITS MARKED

FOR PLAINTIFFS : Ex.A.1– is the letter issued by Gram Panchayat, Gopalpuram Dt:25-8-2009 Ex.A.2 – is the permanent patta certificate No. 10307/98, in the name of P.W.1's father Ex.A.3 – is the Rythu pass book issued by MRO, Hanamkonda.

FOR DEFENDANT :Nil

II-ADDL. JUNIOR CIVIL JUDGE,

WARANGAL.