Andhra Pradesh High Court - Amravati
Arugunta Sree Praveen vs Pothireddy Indiramma on 5 January, 2024
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
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APPEAL SUIT No.1304 OF 2018
Between:
Arugunta Sree Praveen,
S/o.Sreenivasulu Reddy,
Occ:Software Engineer,
Aged about 39 years,
R/o.USA, Rep. By his father and
GPA agent Dr. Arugunta Sreenivasulu
Reddy, S/o.Late Pitchi Reddy,
Occ:Private Medical Practitioner,
Aged about 68 years,
R/o.16-2-399, Srinivasa Agraharam,
Nellore and three others. .... Appellants/Plaintiffs
Versus
Pothireddy Indiramma,
W/o.Audisesha Reddy,
Hindu, House Wife,
Aged about 35 Years,
Residing at Pudiparthi Village,
Venkatachalam Mandal,
SPSR Nellore District
and three others. .... Respondents/Defendants.
DATE OF JUDGMENT PRONOUNCED : 05.01.2024
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
2
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AS No.1304/2018
2. Whether His Lordship wishes to see
The fair copy of the judgment? Yes/No
,,
______________________________
A.V.RAVINDRA BABU, J
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AS No.1304/2018
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ APPEAL SUIT No.1304 OF 2018
% 05.01.2024
# Between:
Arugunta Sree Praveen,
S/o.Sreenivasulu Reddy,
Occ:Software Engineer,
Aged about 39 years,
R/o.USA, Rep. By his father and
GPA agent Dr. Arugunta Sreenivasulu
Reddy, S/o.Late Pitchi Reddy,
Occ:Private Medical Practitioner,
Aged about 68 years,
R/o.16-2-399, Srinivasa Agraharam,
Nellore and three others. .... Appellants/Plaintiffs
Versus
Pothireddy Indiramma,
W/o.Audisesha Reddy,
Hindu, House Wife,
Aged about 35 Years,
Residing at Pudiparthi Village,
Venkatachalam Mandal,
SPSR Nellore District
and three others. .... Respondents/Defendants.
! Counsel for the Appellants : M/s.M.Vidyavathi.
^ Counsel for the Respondents : Mr.V.Roopesh Kumar Reddy
> Head Note:
? Cases referred:
This Court made the following:
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AS No.1304/2018
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
APPAL SUIT No.1304 OF 2018
JUDGMENT:
This Appeal Suit is directed against the judgment and
decree, dated 04.06.2018, in Original Suit No.239 of 2012, on the
file of the Court of V Additional District Judge, Nellore (for short,
„the learned Additional District Judge‟) where under the learned
Additional District Judge dismissed the Suit of the plaintiffs,
which was filed seeking to declare the title of the first plaintiff over
the plaint schedule property and for permanent injunction
restraining the defendants and their men from interfering with his
peaceful possession and enjoyment over plaint A schedule
property; for declaration of title of plaintiffs 2 to 4 over plaint B
schedule property and for permanent injunction restraining the
defendants and their men from interfering with their peaceful
possession and enjoyment over plaint B schedule property and
further to direct the defendants to pay a sum of Rs.30,000/- to the
first plaintiff jointly and severally for demolishing the western side
compound wall of plaint A schedule property with interest thereon
at 24% p.a. and for costs.
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2. The parties to the Appeal Suit will hereinafter be referred to
as described before the trial Court for the sake of convenience.
3. The case of the plaintiffs, in brief, according to the
averments in plaint in O.S. No.239 of 2012, is as follows:
(i) Plaint A and B schedule properties were originally owned
by Vemireddy Subba Rami Reddy and his sons Chandra Mohan
Reddy - 4th defendant herein, Sreenivasulu Reddy and Balakota
Reddy, residents of Muthukur village. They got partitioned the said
properties and other properties vide registered partition deed,
dated 07.02.1979. An extent of Ac.1.69 cents in Survey No.485 of
Muthukur village which fell to the share of 4th defendant in the
above mentioned partition was sold to one Anumakonda
Ramadasu under a registered sale deed, dated 19.08.1980. One
Vinnakoti Subbarayudu purchased an extent of Ac.0.19 cents of
land equivalent to 114 ankanams in S.No.485 of Muthukur village
under the registered sale deed, dated 30.11.1988, from
Anumakonda Ramadasu. Vinnakoti Hyma, wife of Vinnakoti
Subbarayudu, purchased Ac.0.20 cents of land equivalent to 120
ankanams in S.No.485 of Muthukur village under the registered
sale deed, dated 30.11.1988, from Anumakonda Ramadasu. The
aforesaid Ac.0.19 cents and Ac.0.20 cents along with other
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neighbouring lands were converted into house site plots and the
layout was approved by Muthukur Gram Panchayat under B.A.
No.15/2002-2003 and P.R. No.79/1, dated 31.03.2003. Plot No.34
measuring 146 ankanams is the part of the said land of Ac.0.19
cents and Ac.0.20 cents mentioned as above. Southern portion of
113 ankanams out of 146 ankanams was purchased by the first
plaintiff under the registered sale deed, dated 18.06.2003, from
them for Rs.1,35,600/- and he took possession of the same which
is in plaint A schedule. The remaining extent of 33 ankanams in
northern portion of Plot No.34 i.e., in plaint B schedule was
purchased by the first plaintiff‟s younger brother Arugunta
Venkata Hareesh under the registered sale deed, dated
18.06.2003, from Vinnakoti Subbarayudu and Hyma. Since the
date of purchase, first plaintiff and the said Arugunta Venkata
Hareesh had been in physical possession and enjoyment of plaint
A and B schedule properties respectively. They also enclosed the
Plot No.34 with thorny fencing and later with barbed wire fencing.
Venkata Hareesh died intestate on 11.02.2005 leaving behind his
mother - 2nd plaintiff, wife - third plaintiff and minor son - 4th
plaintiff. Thus, plaintiffs 2 to 4 succeeded to the estate of deceased
Arugunta Venkata Hareesh which includes plaint B schedule
property. First plaintiff has been in possession and enjoyment of
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plaint A schedule property. Plaintiffs 2 to 4 are in possession and
enjoyment of plaint B schedule property. Since the first plaintiff is
employed in USA as software engineer, he executed a registered
General Power of Attorney (GPA) on 11.01.2010 appointing his
father Dr. Arugunta Sreenivasulu Reddy to manage plaint A
schedule and to sell the same including filing of suits etc. The
deed of GPA was adjudicated by the District Registrar, Nellore on
collection of stamp duty of Rs.1,000/-, which is still in force. So,
the power of attorney agent of first plaintiff has been looking after
and supervising the plaint A schedule site on behalf of first
plaintiff. Plaintiffs raised a compound wall of about 4½ feet height
from the base level and 50 feet length with brick walls at the
western boundary of plaint A schedule on 23.04.2012 by engaging
a mason viz., Suresh. The defendants on 28.04.2012 without any
manner of right, title interest or possession demolished 50 feet
length of the compound wall of 4½ feet height from the base level,
constructed at the cost of Rs.30,000/-, at the western boundary of
plaint A schedule property. The power of attorney of the first
plaintiff came to know about demolition of the said wall through
one Suresh - mason. He was informed that the defendants and
their men demolished the said wall and placed a board stating
that the plaint A and B schedule properties belongs to defendants
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1 and 3. However, the general power of attorney agent of first
plaintiff removed the said board.
(ii) Second defendant is the maternal uncle of first
defendant. Defendants 3 and 4 are the natives of Muthukur
village. The defendants have no document in their favour to show
that plaint A and B schedule properties belong to them but they
are proclaiming that they will trespass and occupy the plaint A
and B schedule properties.
4. The total extent of the land in Survey No.485 of Muthukur
village is Ac.15.95 cents. It was subdivided into 485/1A, 485/1B,
485/2A and 485/2B and the extent of lands in Survey No.485/1A
is Ac.4.72 cents. Ac.6.23 cents is in S.No.485/1B; Ac.1.25 cents is
in S.No.485/2A and Ac.3.75 cents is in S.No.485/2B. The said
sub-division took place as some portions of land were surrendered
by the respective owners towards their surplus in their land ceiling
cases. The plaint schedule site is in S.No.485/1A of Muthukur
village after sub-division. The Revenue Divisional Officer, Nellore
has issued a certificate, dated 26.06.2012, to that effect. Hence,
the Suit for declaration, consequential permanent injunction and
for a direction to pay the damages.
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5. The second defendant remained ex parte before the trial
Court.
6. The first defendant got filed a written statement denying the
case of the plaintiffs and her contention, in brief, is that 4th
defendant got the lands in S.Nos.485 and 486 of Muthukuru
village to an extent of Ac.13.00 cents and he was in possession
and enjoyment of the said property. He sold away an extent of
Ac.1.69 cents to one Anumakonda Ramadasu under a registered
sale deed, dated 19.08.1980, and to the west of the said land, he
sold away land in an extent of Ac.1.00 cents to one Cheemakurthi
Kasturi. To the east of Anumakonda Ramadasu, fourth defendant
was still having land in an extent of 124 ankanams for which
Krishnapatnam road is the southern boundary. Out of 124
ankanams, 4th defendant sold away a site in an extent of 40
ankanams to one Duvvuru Srinivasulu Reddy, who is the father of
1st defendant, under a registered sale deed, dated 30.08.1984. He
sold 28 ankanams to one Ponnuru Raghavaiah, third defendant
herein, under a registered sale deed dated 30.08.1994. Further, he
sold away the site in an extent of 16 ankanams to one Valluru
Hymavati, who is not a party to the suit, vide registered sale deed,
dated 30.08.1994. After the death of Duvvuru Srinivasulu Reddy
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intestate, she being the legal heir inherited the same and she has
been in uninterrupted possession thereof. The suit schedule
property, as alleged by the plaintiffs, is not in existence. The
alleged layout is false, fabricated and is not valid. The so called
vendors of the land whose names were shown in the copy of layout
are not having a total extent of the land as shown in the said
layout. The total site of the layout is shown as 1712.15 ankanams.
If the site shown in each plot is summed up, it comes to total
extent of 1735.35 ankanams. It is for the plaintiffs to show the
total extent of the land purchased by all the alleged owners of the
land whose names were shown in the layout. All those people are
necessary parties to the suit and their non-joinder is fatal and the
Suit is not maintainable. One Gadamsetty Anith Kumari,
Gadamsetty Chandrasekhar and Sarabu Obaiah are shown in the
alleged layout as some of the owners of the said lay out property.
They all have jointly purchased the land in an extent of Ac.1.00
cents which was purchased by one Cheemakurthi Kasturi from 4th
defendant. The aforesaid three persons sold away house site plots
bearing Nos.1 to 17 in total extent of 668 ankanams. There are
lay-out roads in the said layout on the east and north of the said
plots which is in an area of 379.35 ankanams. It is for the
plaintiffs to prove how it was possible for them to sell 1047.35
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ankanams as they purchased only 600 ankanams. So, the
plaintiffs are never in possession and enjoyment of the suit
schedule properties. Hence, the Suit is liable to be dismissed.
7. The third defendant got filed a written statement denying
the case of the plaintiffs and as evident from his written statement
his case is replica as that of the first defendant, as mentioned in
his written statement, as such it need not be extracted here.
8. The fourth defendant got filed a written statement which is
also same as that of the contentions of first defendant. So it also
need not be extracted here.
9. On the basis of the above pleadings, the following issues
were settled for trial before the trial Court:
1) Whether the 1st plaintiff is entitled for declaration of
title over plaint A schedule property?
2) Whether the plaintiffs 2 to 4 are entitled for
declaration of title over plaint B schedule property?
3) Whether the 1st plaintiff is entitled for permanent
injunction restraining the defendants from peaceful
possession and enjoyment of plaint A schedule
property?
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4) Whether the plaintiffs 2 to 4 are entitled for
permanent injunction in respect of B schedule
property?
5) To what relief?
10. During the course of trial, on behalf of the plaintiffs, PWs.1
to PW.3 were examined and Exs.A-1 to A-14 were marked. On
behalf of the defendants, DWs.1 to DW.4 were examined and
Exs.B-1 to B-3 were marked. Though the chief-examination
affidavit of DW.3 was filed but later it was eschewed from
consideration.
11. The learned Additional District Judge on conclusion of trial
and on considering the oral and documentary evidence on record
dismissed the suit of the plaintiffs.
12. Felt aggrieved of the aforesaid judgment and decree of the
learned Additional District Judge, the un-successful plaintiffs
therein filed the present Appeal.
13. Now, in deciding the present Appeal, the points that arise for
determination are as follows:
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1) Whether the plaintiffs before the learned Additional
District Judge proved their entitlement to get
declaration of title in respect of plaint A and B
schedule properties within the boundaries as
described in the plaint schedule as prayed for and
further proved their entitlement for a permanent
injunction?
2) Whether the first plaintiff proved his entitlement to
claim damages in the manner as pleaded?
3) Whether the judgment, dated 04.06.2018, in O.S.
No.239 of 2012 is sustainable under law and facts and
whether there are any grounds to interfere with the
same?
POINT Nos.1 to 3:
14. PW.1 before the trial Court was no other than the General
Power Attorney holder of first plaintiff who adverted to the case of
the plaintiffs in tune with the pleadings in his chief-examination
affidavit. Through his examination-in-chief, Exs.A-1 to A-10 were
marked. Ex.A-1 is the certified copy of General Power of Attorney
dated 11.01.2010. Ex.A-2 is the certified copy of registered
partition deed dated 07.02.1979. Ex.A-3 is the certified copy of
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registered sale deed dated 19.08.1980 executed by 4th defendant
in favour of A. Ramadasu. Ex.A-4 is the certified copy of registered
sale deed dated 30.11.1988 executed by A. Ramadasu in favour of
Vinnakoti Subbarayudu. Ex.A-5 is the certified copy of registered
sale deed dated 30.11.1988 executed by A. Ramadasu in favour of
Vinnakoti Hyma. Ex.A-6 is certified copy of registered sale deed
dated 18.06.2003 executed by Vinnakoti Subbarayudu and
Vinnakoti Hyma in favour of 1st plaintiff. Ex.A-7 is the certified
copy of registered sale deed dated 18.06.2003 executed by
Vinnakoti Subbarayudu and Vinnakoti Hyma in favour of Venkata
Hareesh. Ex.A-8 is the death extract of Venkata Hareesh. Ex.A-9 is
the photos 19 in number with CD. Ex.A-10 is the letter from the
RDO, Nellore dated 26.06.2012 vide L.R (K) No.2065/2012
addressed to Sub-Registrar, Muthukur.
15. Plaintiffs got filed the chief-examination affidavit of PW.2,
who is no other than the vendor of the plaintiffs namely Vinnakoti
Subbarayudu, in support of their case. The sum and substance of
his evidence is that he purchased an extent of Ac.0.19 cents in
S.No.485 and his wife Vinnakoti Hyma purchased an extent of
Ac.0.20 cents in S.No.485 from Anumakonda Ramadasu under
two separate registered sale deeds dated 30.11.1988. The said
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lands along with other neighbouring lands were converted into
house site plots and they sold away plaint A and B schedule
properties to the first plaintiff and his younger brother - Arugunta
Venkata Hareesh.
16. The plaintiffs got filed the chief-examination affidavit of
PW.3, a third party, and his evidence is that he constructed a
compound wall of about 4½ feet height from the base level and 50
feet length with bricks at the western boundary of 146 ankanams
of site in Muthukur village and the defendants demolished it on
28.04.2012 by 08:00 a.m.
17. On behalf of the defendants, they got filed the chief-
examination affidavit of DW.1, who is no other than the first
defendant, who put forth the facts in tune with her written
statement. According to her, Ex.B-1 is the certified copy of sale
deed, dated 30.08.1994, executed in favour of Duvvuri Srinivasulu
Reddy (her father).
18. Further, chief-examination affidavit of DW.2 was also filed
for the defendants and DW.2 is no other than the 3rd defendant
who put forth the facts in tune with his written statement.
According to him, Ex.B-2 is the registration extract of registered
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sale deed, dated 12.09.1994, under which he purchased the
property from the 4th defendant.
19. Though the chief-examination affidavit of DW.3 was also
filed for the defendants and DW.3 is no other than the 2nd
defendant, later it was eschewed from consideration.
20. The chief-examination affidavit of DW.4 was filed and DW.4
is no other than the 4th defendant who put forth the facts in tune
with his chief-examination affidavit.
21. During the course of hearing M/s. M. Vidyavathi, learned
counsel for the appellants/plaintiffs, would canvass the facts in
tune with the pleadings of the plaintiffs. She would strenuously
contend that though there was no issue at all with regard to the
validity or otherwise of Ex.A-1 - registered General Power of
Attorney in the name of first plaintiff and though it was not in
dispute, the learned Additional District Judge erroneously made
adverse findings in this regard without there being any issue as to
the validity of GPA in the name of PW.1 as such findings of the
learned Additional District Judge are not at all tenable. The plaint
A schedule property was purchased by the first plaintiff. Plaint B
schedule property was purchased by Arugunta Venkata Hareesh,
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who died and plaintiffs 2 to 4 are no other than his legal heirs.
There was no dispute about the traces of title to contend that the
plaintiffs had valid title over plaint A and B schedule properties.
She would rely upon the evidence of PW.2, who is the so called
vendor of the property. The defendants did not dispute the fact
that the vendor of the plaintiffs i.e., PW.2 and his wife purchased
the property. Without there being any reason at all, the defendants
denied the case of the plaintiffs that there was layout covering
plaint A and B schedule properties. Plaintiffs exhibited the sale
deeds in their names before the learned Additional District Judge.
By virtue of the evidence of PW.2, the vendor of the plaintiffs, they
were able to establish their title. The sale deeds in the name of the
plaintiffs were enclosed with copy of the layout plan identifying the
plaint A and B schedule properties. The findings of the learned
Additional District Judge were nothing but perverse and irregular.
The learned Additional District Judge overlooked the fact that
possession follows the title. When the plaintiffs had a valid title by
virtue of Exs.A-6 and A-7, the learned Additional District Judge
made irrelevant findings as if the plaintiffs did not prove Ex.A-1 -
GPA in the name of PW.1. Absolutely, for obvious reasons, the
defendants denied the existence of the layout. The plaintiffs, to
prove a valid title, have chosen to examine PW.2, whose evidence
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is fully convincing. The defendants miserably failed to probabilize
their contentions. There was no dispute about the title of the 4th
defendant over an extent of Ac.1.69 cents in survey No.485/1A,
who sold away the same in favour of one Anumakonda Ramadasu
and from whom Vinnakoti Subbarayudu and his wife Vinnakoti
Hyma purchased two bits and it was converted into a layout and
out of it, the suit schedule property in Plot No.34 was sold out to
Arugunta Sree Praveen and Arugunta Venkata Hareesh. All these
facts were quietly established by the plaintiffs with consistent
evidence. The learned Additional District Judge erroneously
upheld the contentions of the defendants by accepting their
contention that the plaintiffs did not establish the title of the
property. At any rate, the overall appreciation of the evidence by
the learned Additional District Judge was not on proper basis and
with erroneous reasons the Suit of the plaintiffs was dismissed
though the defendants failed to probabilize their contentions. She
would submit that the defendants have no right, whatsoever, over
the plaint A and B schedule properties. The property claimed by
them has nothing to do with the plaint schedule properties. With
the above said contentions, she would submit that the Appeal is
liable to be allowed.
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22. Mr. V. Roopesh Kumar Reddy, learned counsel for the
respondents/defendants, would contend that the plaintiffs did not
mark the copy of the layout to show and to prove the existence of
plaint A and B schedule properties. What was enclosed with
Exs.A-6 and A-7 was not the copy of approved layout. The so
called layout set up by the plaintiffs is nothing but false. The
authenticated copy of the layout did not see the light of the day.
There was no identity of the property on ground within the
boundaries mentioned in plaint A and B schedule. Plaintiffs have
no reason as to why they did not summon the authenticated copy
of the layout from the concerned. The GPA does not contain the
signature and the plaintiffs did not produce the original thereof.
The boundaries to the plaint schedule properties were not
established. Plaintiffs did not join some of the parties, whose
presence is necessary. The plaintiffs did not take any steps to
prove the identity of the plaint schedule properties. There was
admission made by PW.2, the so called vendor of the plaintiffs, in
cross-examination that his vendor sold away different properties
with same boundaries in favour of various persons. There was a
serious dispute with regard to identity of the property claimed by
the plaintiffs under Exs.A-6 and A-7. The learned Additional
District Judge rightly made a finding that the plaintiffs did not
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prove Ex.A-1 and further did not establish the identity of the
property. He would submit that in a Suit for declaration of title, it
is the bounden duty of the plaintiffs to establish the identity of the
property. Though the vendor of the plaintiffs had purchased the
property from Anumakonda Ramadasu but what is material is
that he was alleged to have converted the property into plots along
with other owners and other owners did not execute any sale
deeds in the name of the plaintiffs. So, there was a bona-fide
dispute raised by the defendants. The learned Additional District
Judge rightly dismissed the Suit of the plaintiffs as such there are
no grounds to interfere with the same. With the above
submissions, he would seek to dismiss the Appeal Suit
23. M/s. M. Vidyavathi, learned counsel for the
appellants/plaintiffs, during the course of reply, reiterated her
contentions and would further submit that though the plaintiffs
filed a copy of layout but it could not be marked for various
reasons and even the defendants did not take any steps to
establish their contentions and they have no semblance of right to
make a claim over the plaint A and B schedule properties.
According to PW.2, plaint A and B schedule properties were part
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and parcel of the land purchased by him and his wife as such
there was identity of the property.
24. The admitted facts are that one Vemireddy Subbarami
Reddy, his sons viz., Chandramohan Reddy (D-4), Sreenivasulu
Reddy and Bala Kota Reddy, residents of Muthukur village got
partitioned their properties under a registered partition deed,
dated 07.02.1979 under Ex.A-2; according to which, one of the
property that fell to the share of Chandramohan Reddy i.e., fourth
defendant was an extent of Ac.1.69 cents in S.No.485.
Subsequently, the said Chandramohan Reddy executed a sale
deed, dated 19.08.1980, copy of which is Ex.A-3, in favour of one
Anumakonda Ramadasu conveying the said extent of Ac.1.69
cents in his favour. Further, the admitted facts are that the said
Ramadasu sold away the property covered under the original of
Ex.A-4 i.e., an extent of Ac.0.19 cents out of the said Ac.1.69 cents
in favour of one Vinnakoti Subbarayudu. Further, the said
Ramadasu also executed the original of Ex.A-5 selling away an
extent of Ac.0.20 cents in the aforesaid survey number in favour of
Vinnakoti Hyma, wife of Vinnakoti Subbarayudu. To this extent,
the facts were not in dispute. Further, the factum of execution of
Exs.A-6 and A-7 sale deeds for selling away the alleged extents in
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Plot No.34 in favour of the first plaintiff and his younger brother -
Anumakonda Venkata Hareesh is not in dispute. The dispute is
with regard to the identity of the property covered under Exs.A-6
and A-7 which is no other than the plaint A and B schedule
properties.
25. Now this Court has to see as to whether plaintiffs before the
trial Court were able to establish the identity of the property
covered under Exs.A-6 and A-7. As seen from Ex.A-6, which is the
copy of the sale deed stood in the name of first plaintiff, the
schedule property was described in Survey No.485 in an extent of
113 ankanams or 755.857 square meters out of 146 ankanams in
Plot No.34 of Survey No.485. The schedule reads that the said plot
was covered by a layout. Coming to Ex.A-7, the schedule depicts
the extent as that of 33 ankanams or 220.737 square meters out
of 146 ankanams in Plot No.34 in Survey No.485 covered by a
layout. Literally, the schedule in Exs.A-6 and A-7 did not whisper
as to the name of panchayat or any authority which approved the
layout, in whose name the layout was standing and on which date
it was approved. Even Exs.A-6 and A-7 were not enclosed with a
copy of the layout. What they were enclosed with is only a sketch
of the so called property. As seen from the plaint averments, the
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contention of the plaintiffs is that the land of Ac.0.19 cents and
Ac.0.20 cents along with the neighbouring lands were converted
into house site plots and layout was approved by Muthukur gram
panchayat under B.A.No.15/2002-2003 and P.R.No.79/1, dated
31.03.2003. Admittedly, it is a fact that the plaintiffs did not bring
the so called layout which was pleaded in the plaint in their
evidence.
26. Turning to the cross-examination of PW.1, the GPA holder of
the first plaintiff, he deposed that Plot No.34 is situated in Survey
No.485/1A. The lands of Vinnakota Subbarayudu and Vinnakota
Hyma in an extent of Ac.0.19 cents and Ac.0.20 cents along with
the neighbouring lands were made into plots as such the plaint
schedule properties are the part and parcel of the said properties.
The owners of other plots in the layout in Survey No.485 did not
execute sale deed in his favour. He did not get the plaint schedule
property surveyed at the time of his purchase. He purchased plots
in the land belonging to Subbarayudu and Hymavathi. However,
he cannot say whether the plaint schedule property is situated in
the lands belonging to Subbarayudu and Hymavathi. He does not
know whether there is any document between Vinnakota
Subbarayudu and Hyma and other owners, whose lands were
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converted as layout to the effect that Plot No.34 was allotted to
Hyma and Subbarayudu. He obtained certified copy of approval
proceedings in Muthukur gram panchayat in B.A.No.15/2002-
2003 and P.R. No.79/1 but he did not file the same in the Court.
He denied that Survey No.485 was not made into plots and no
layout was sanctioned by Muthukur gram panchayat.
27. By virtue of the above admissions made by PW.1 in cross-
examination, it emerges that apart from the lands claimed to be
purchased by Vinnakota Subbarayudu and Hyma other lands
were also taken together to form the so called layout. If that be the
case, it is the duty of the plaintiffs to explain as to where the plaint
schedule properties are situated whether they are located in the
lands belonging to Vinnakota Subbarayudu and Hyma or other
lands. However, admissions made by PW.1 means that he cannot
say as to whether plaint schedule properties are located in the
land belonging to Vinnakota Subbarayudu and Hyma. He admitted
that other land owners, whose lands were also taken to form the
so called layout, did not execute any sale deed. Even he had no
proof to show that Plot No.34 fell to the share of Vinnakota
Subbarayudu and Hyma. It is to be noted that when the plaintiffs
made a pleading as to the name of panchayat which issued the
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layout and the number of layout in the plaint averments, it is
shrouded in mystery as to why he did not bring the same into
evidence. When it is the contention of the defendants that the suit
schedule properties were not covered by any layout and the
allegations of the plaintiffs in this regard are all false, plaintiffs
kept quiet without bothering to bring the original layout into
evidence to establish the identity of the property.
28. As seen from the plaint averments as well as the chief-
examination affidavit of PW.1, a specific pleading was made at
Para No.10 of the plaint which runs as follows:
"10. It is learnt that the total extent of S.No.485 of
Muthukur village is Acs.15-95 cents. The said Survey number
was sub divided into 485/1A, 485/1B, 485/2A and 485/2B
by the revenue department. The extent of land in
S.No.485/1A is Acs.4-72 cents; S.No.485/1B is Acs.6-23
cents; S.No.485/2A is Acs.1-25 cents and S.No.485/2B is
Acs.3-75 cents. The said sub division took place as some
portions of land was surrendered by the respective owners
towards their surplus in their land ceiling cases. The plaint
schedule mentioned site is in S.No.485/1A of Muthukur
village after sub division. The Revenue Divisional officer,
Nellore has issued a certificate dated 26-6-2012 to that effect.
Thus plaint schedule mentioned vacant site is in
S.No.485/1A after sub-division."
AVRB,J
29. During the course of cross-examination with regard to these
pleadings he deposed that he did not verify the sub-division of
survey mentioned in his chief-examination affidavit.
30. Exs.A-6 and A-7 reveals that the so called property claimed
to be purchased by the plaintiffs is located in S.No.485 in the
plaint schedule. Now, the property is shown as located in
S.No.485/1A. There is no pleading as to whether sub-division of
the property purchased by the plaintiffs was made prior to the
alleged layout or subsequent to the alleged layout. So, it is very
clear that the plaintiffs did not bring any piece of document in
evidence to show the sub-division numbers as alleged in the plaint
averments and in the chief-examination affidavit.
31. As seen from Ex.A-4, it is a copy of sale deed, dated
30.11.1988, executed by Anumakonda Ramadasu in favour of
Vinnakoti Subbarayudu. Ex.A-5 is the copy of sale deed, dated
30.11.1988, executed by Anumakonda Ramadasu in favour of
Vinnakota Hyma. During cross-examination, PW.1 admitted that
Vinnakota Subbarayudu purchased Ac.0.19 cents and Vinnakota
Hyma purchased Ac.0.20 cents from Ramadasu on one and the
same day i.e., on 30.11.1988 but under two separate registered
sale deeds. He does not know whether on the same day or
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subsequently Vinnakoti Sekhar, Vinnakoti Lakshmi Prasad,
Vinnakoti Madhu, Vinnakoti Lalitha and some others purchased
land from Anumakonda Ramadasu. He admitted that he had gone
through the schedule mentioned in Exs.A-4 and A-5. He deposed
that the boundaries of Ex.A-4 are: east - land of 4th defendant;
south - Nellore Krishnapatnam road, west - land belonging to
Cheemakurthi Kasturi and north - irrigation canal. He deposed
that the boundaries mentioned in Ex.A-3 are correct and similar to
the boundaries mentioned in Ex.A-4. He does not know whether
the schedule in Ex.A-4 is misleading as it was not possible to have
the boundaries of Ac.1-69 cents under Ex.A-3. He admitted that
the boundaries in Ex.A-5 are also same as the boundaries given in
Exs.A-3 and A-4. He does not know whether the boundaries
mentioned in the sale deed executed by Ramadasu in favour of V.
Sekhar on 30.11.1988 are same as boundaries given in Ex.A-5.
32. It is to be noted that as this Court already pointed out
Ex.A-3 was the copy of sale deed, dated 19.08.1980, executed by
Vemireddy Chandramohan Reddy having an extent of Ac.1.69
cents in favour of Anumakonda Ramadasu. Even if that is the
situation it is not understandable as to how self same boundaries
were mentioned in Exs.A-4 and A-5, copy of the sale deeds
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standing in the name of Vinnakota Subbarayudu and Vinnakota
Hyma. So, by virtue of the above answers deposed by PW.1 in
cross-examination, even the identity of the property said to be
purchased by Vinnakota Subbarayudu and Vinnakota Hyma is
doubtful.
33. According to the evidence available on record, first plaintiff
herein filed O.S. No.41 of 2012 against the third defendant herein
and another and later not pressed it. During the further chief-
examination of PW.1 on 05.12.2016, Exs.A-11 to A-14 were
marked. Ex.A-11 is the original registered sale deed executed by
Vinnakoti Subbarayudu and Vinnakoti Hyma in favour of
Arugunta Sree Praveen, dated 18.06.2003. Ex.A-12 is the original
registered sale deed executed by Vinnakoti Subbarayudu and
Vinnakoti Hyma in favour of Arugunta Venkata Harish dated
18.06.2003. Ex.A-13 is the certified copy of decree in O.S. No.41 of
2012, dated 13.07.2012, on the file of I Additional Junior Civil
Judge, Nellore. Ex.A-14 is the certified copy of judgment in O.S.
No.41 of 2012 dated 13.07.2012 on the file of I Additional Junior
Civil Judge, Nellore. During cross-examination, PW.1 deposed that
earlier he filed O.S. No.41 of 2012 on the file of the I Additional
Junior Civil Judge, Nellore in respect of the same subject matter
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and obtained ex parte injunction. In his cross-examination he
admitted that after obtaining injunction with aid of the Police, he
tried to fix boundaries for some property on the western side of
Axis Bank and in that connection he tried to get measurements
through Surveyor. He further admitted that he filed the present
Suit only after coming to know from the District Surveyor that it is
not possible to identify the property only basing on the documents.
He denied that the Suit is not maintainable as the suit schedule
property is not identifiable. He admitted that the above said Suit
was dismissed as withdrawn. He further admitted that on his
request in the year 2012, RDO appointed a Surveyor to survey the
suit schedule property and to identify the same. So, the above
admissions made by PW.1 further reveals that even the District
Surveyor was not able to identify the property.
34. In a Suit for declaration of title, it is the bounden duty of the
plaintiffs to stand on their own legs to establish the identity of the
property. Mere execution of originals of Exs.A-6 and A-7 in favour
of the first plaintiff and his younger brother - Arugunta Venkata
Hareesh respectively does not mean that the property claimed by
the plaintiffs is identifiable. When the plaintiffs pleaded that the
property covered under plaint A and B schedule is covered by a
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valid approved layout, the so called layout has not seen the light of
the day. There is no explanation from the plaintiffs as to why they
could not produce the best evidence to establish the identity of the
property. On the other hand, various admissions made by PW.1
during cross-examination means that Ramadasu executed
originals of Exs.A-4 and A-5 relating to two chunks of the property
with the self same boundaries and the same boundaries were
there in Ex.A-3 also. Apart from this, admission of PW.1 during
cross-examination means that on the strength of ex parte
injunction in O.S. No.41 of 2012, he tried to fix up the boundaries
and even the District Surveyor expressed his inability to identify
the plaint schedule property basing on the documents available.
The plaintiffs sought to prove the boundaries basing on the
available sale deeds with them. Even during the course of trial
before the learned Additional District Judge, plaintiffs did not take
any other steps to get a comprehensive survey so as to identify the
plaint schedule property. In my considered view, plaintiffs, for the
reasons best known to them, withheld the best evidence available
with them i.e., the so called approved layout, whose reference was
made in the pleadings to establish the identity of the property. The
learned Additional District Judge rightly looked into all these
aspects. In my considered view, the evidence on record is not at all
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sufficient to establish the identity of plaint A and B schedule
properties. Though the defendants 1, 3 and 4 claimed property
under Exs.B-1 to B-3, even there is no whisper from their case as
to whether the so called house sites claimed by them is covered
under a valid layout. However, their contention is also that under
the guise of ex parte injunction plaintiffs tried to encroach their
property. In a suit of this nature, as this Court already pointed
out, plaintiffs have to succeed on their own strength and they
cannot succeed basing on the weakness of the defence.
35. A perusal of the impugned judgment reveals that the learned
Additional District Judge appreciated the evidence on record in
proper perspective. However, absolutely, there was no dispute with
regard to the fact that PW.1 is no other than father of the first
plaintiff and the first plaintiff is in abroad as such he is
representing the first plaintiff as GPA. Though the findings of the
learned Additional District Judge commenting against Ex.A-1 are
not tenable but even a positive finding about Ex.A-1 is not going to
advance the case of the plaintiffs to establish identity of the plaint
schedule property.
36. Having regard to the above, I am of the considered view that
as the plaintiffs miserably failed to establish identity of plaint A
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and B schedule properties, they are not at all entitled to seek a
declaration of title in respect of plaint A and B schedule properties,
permanent injunction and also the damages in respect of plaint A
schedule property. In the light of the above, I am of the considered
view that the learned Additional District Judge rightly appreciated
the evidence on record and came to a conclusion that the plaintiffs
failed to establish the identity of plaint A and B schedule
properties. Hence, the judgment is not liable to be interfered with.
37. In the result, the Appeal Suit is dismissed with costs
confirming the decree and judgment, dated 04.06.2018, in O.S.
No.239 of 2012 on the file of the Court of V Additional District
Judge, Nellore.
Consequently, Miscellaneous Applications pending, if any,
shall stand closed.
________________________________
JUSTICE A.V.RAVINDRA BABU
Date: 05.01.2024
Note:
Mark L.R. Copy.
DSH
