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O.S.No.

4 of 2010 Page 1 of 44

IN THE COURT OF THE ADDL. DISTRICT JUDGE :: HINDUPUR


Present: Sri D. Ramulu, Addl. District Judge
Wednesday, the 16th day of November, 2016
Original Suit No. 4 of 2010
Between:

M. Ramanjana Reddy son of


M. Sanjeeva Reddy, Hindu,
Agriculturist, aged 56 years,
Honampalli, Parigi Mandal Plaintiff

and

1) Smt. Aswarthamma w/o late


Narasaiah, 50 years

2) G.C. Narasimha Reddy s/o late


Narasaiah, 50 years

3) G. Narayana Reddy s/o late


Narasaiah, 60 years

4) M.Narayana Reddy s/o late


Govindappa, 60 years

5) M. Venkataramireddy s/o late


Govindappa, 55 years

6) M. Ananda Reddy s/o late


Govindappa, 53 years

7) M. Eswara Reddy s/o late


Govindappa, 48 years

All are agriculturists, residents of


Honnampalli,
Parigi Mandal
.. Defendants

This suit is coming on 31-8-2016 for final hearing before me in


the presence of Sri P.Nagabhushana Rao, advocate for plaintiff and of
Sri K. Sadasiva Reddy, advocate for Defendants 1 to 3 and
Sri K.C.Raghunatha Reddy, advocate for defendants 4 to 7 and the
matter having stood over for consideration till this day, and this court
delivered the following:

JUDGMENT

1. The plaintiff filed the suit for declaration of plaintiffs title and

possession over the suit schedule property and direct the defendants
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to remove the constructions made on over suit schedule property in an

extent of Ac.0.21 cents shown as AECF and GBHI portion of plaint

rough plan and directed to deliver the vacant possession of the same

to the plaintiff and in case if the defendants fails to do so, the plaintiff

at liberty to get it done through Court and also for consequential relief

of permanent injunction restraining the defendants and their men from

interfering with the peaceful possession and enjoyment of the plaintiff

over entire extent of Ac.0.36 cents of the suit schedule property and

for costs.

2. Before writing judgment it is noticed in number of civil suits

under what law and under what section of law particular suit is filed, is

not mentioned in the plaint. It creates a much trouble for the judge

who is not a trial judge in reading the plaint, written statement and

the evidence on both sides before pronouncing judgment.

3. In this case on hand, the plaint filed on behalf of the plaintiff

under Or.7 R.1 and 2 CPC. It is not mentioned under what section of

law the suit is mentioned. It is to be mentioned the suit is filed under

Sec.26 of CPC read with Or.7 Rules 1 and 2 of C.P.C. If the sections

of Civil Procedure Code, 1908 is a substantive law, whereas the 51

orders and 620 rules is a procedure. The sections cannot be amended

except by the power of the parliament, whereas the procedure can be

amended even by the State Legislature. When there is a contradiction

between section of law and the orders and rules, the section of law will

prevail over. For example, Sec. 32(c) of C.P.C. contradicts Or.16 R.12

of C.P.C. However after perusing the entire plaint, written statement

and chief affidavits of both sides, the evidence adduced on both sides,

the Court pronounced the following Judgment.


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4. Before pronouncing the judgment let us see what is the case of

plaintiff.

The plaintiff herein humbly submitted his sublime supplications

and lamentations that the total extent of suit schedule property in

S.No.255-2 is in an extent of Ac.1.26 cents which is the ancestral

property of the plaintiff and the plaintiff and their predecessors are in

possession and enjoyment of the same in their own right. The father

of the plaintiff namely M.Sanjeeva Reddy out of Ac.1.26 cents in the

suit schedule survey number a plot measuring Ac.0.90 cents on the

western side sold away to one M. Govindareddy under registered sale

deed dated: 23-10-1956 with specific boundaries and measurements

by retaining remaining Ac.0.36 cents of land on the eastern side and

enjoying the same till his death. After the death of M. Sanjeeva

Reddy, the plaintiff herein M. Ramanjana Reddy succeeded the same

and the plaintiff continuous to be in possession and enjoyment of the

suit schedule property to the knowledge of all more particularly to the

knowledge of the defendants herein (D1 to D7).

It is further submitted that the husband of the first defendant

namely Narasa Reddy raised a dispute with the plaintiff in enjoying the

suit schedule property and filed a suit in OS 220/1983 on the file of

the District Munsif Court, Hindupur for grant of permanent injunction

and the said suit was dismissed by the District Munsif Court, Hindupur

by its decree and judgment dt. 24-6-1991 on merits. Against the said

decree and judgment, the above said Narasa Reddy preferred an

appeal in A.S.23/91 on the file of Additional District Judges Court,

Hindupur. On merits, the said appeal was dismissed by its decre and

judgment. Against the said decree and judgment, a second appeal

was preferred by Narasa Reddy before the Honble High Court of A.P.

at Hyderabad. In the second appeal in SA 505/1995 was also


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dismissed by the decree and judgment dt. 21-2-2007. The entire

litigation was ended in favour of plaintiff and all the courts were

categorically gave a finding that the plaintiff is in possession and

enjoyment of the suit schedule property in his own right. Neither the

defendants nor any others or the persons claiming through the

defendants are nothing to do with the suit schedule property.

It is further submitted that Ac.0.36 cents of land retained by the

father of the plaintiff after the sale by virtue of the sale deed dt.

23-10-1956 is shown as ABCD of the plaint rough plan. The plaintiff

constructed a mulberry shed in a portion of the plaint schedule

property and the same was subjected to property tax by the Grama

Panchayat, Parigi and a door number was assigned as D.No. 2/99 to

the mulberry shed. Apart from this, the plaintiff has constructed a

house bearing D.No.2/19-A and use to reside in the same with his

family members. Subsequently, the plaintiff constructed another

house opposite to the house bearing D.No.2-19 as shown in the plaint

rough plan. The remaining open space is being used by the plaintiff for

tying cattle and for manure pits and a portion of the suit schedule

property is also using by the plaintiff as a thrashing floor. Thus the

plaintiff is in possession of the entire extent of Ac.0.36 cents in his

own right.

The plaintiff also submitted that recently when the matter is

pending before the High Court of Judicature of A.P. in second appeal

No. 505/1995, the defendants 1 to 3 made some constructions in the

village poramboke which is lying immediately abetting to the eastern

boundary to the plaint schedule property in between the road and the

plaint schedule property blocking the access to the plaintiff into the

public road, for which the plaintiff raised objections saying that the

constructions made by the defendants 1 to 3 are obstructing the


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plaintiff in using the road that was running immediately on the eastern

side of the plaint schedule property. Inspite of the objections the

defendants 1 to 3 made permanent structures over the

Government Poramamboke land in the year 2005 and

thereafter, the defendants 1 to 3 encroached into the suit

schedule property to an extent of 26 x 26 feet into the suit

schedule property. If such is the case, title of the plaintiff must be

mentioned. The plaint is filed under so and so section of Indian

Easement Act, 1882. For example, the plaintiff may ask injunction to

restraining the disturbance u/sec. 35 of the Indian Easement Act,1882

along with other provisions of Specific Relief Act,1963. This is lacking

in every plaint filed by the plaintiff through his advocate. So, in this

regard the plaintiff also preferred a complaint to the Station House

Officer, Parigi P.S. but the police did not take any action. The

panchayat was also held in this regard. In the said panchayat, the

defendants 1 to 3 agreed to remove the encroachment made by them

in the suit schedule property on the eastern side as shown in the plaint

rough plan. But the defendants 1 to 3 did not remove the

encroachments and continued to be there. The defendants 1 to 3 have

no right and title and possession whatsoever over the suit schedule

property inspite the findings given by the courts in the earlier

litigation.

It is further submitted that the defendants 4 to 7 are nothing to

do with the suit schedule property. Neither the defendants 4 to 7 nor

their ancestors through whom they are claiming the property are

nothing to do with the suit schedule property which is more

particularly described in the plaint rough plan as ABCD.

It is also submitted that on 14-8-2003 the defendants 4 to 7

made a false representation before the Mandal Development Officer,


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Parigi for grant of financial assistance for construction of the houses

along with all other amenities. For which, the plaintiff got issued a

notice to the Mandal Development Officer, Parigi on14-8-2003. With

that the defendants 4, 6 and 7 stopped temporarily their attempts.

Again on 4-7-05 when the defendant No.5 made an application to the

Assistant Director of Sericulture, Hindupur for grant of financial aid for

construction of mulberry shed in the suit schedule property, the

plaintiff got issued a notice to the Assistant Director, Sericulture,

Hindupur and the same was acknowledged and the defendant No.5

temporarily stopped his attempts in encroaching into the suit schedule

property.

It is further submitted that inspite of the objections made by the

plaintiff and the defendants 4 to 7 again high handedly trespassed into

the suit schedule property and constructed four permanent structures

in the suit schedule property to an extent of Ac.0.20 cents of land on

the western side of the mulberry shed belongs to the plaintiff. The

details of the permanent structures constructed by the defendants 4

to 7 are shown in the plaint rough plan as AECF portion marked in red

colour with door numbers. Similarly, the defendants 1 to 3

encroached into the plaint schedule property high handedly and made

construction on the eastern side of the plaintiff residential house

shown as GBHI portion in the red colour in the plaint rough plan.

It is also submitted that the defendants 1 to 7 are well aware

that they are nothing to do with suit property belonged to the plaintiff

shown as AECF and GBHI portion in the plaint rough plan and the

defendants are well aware that the said portion of the property in the

plaint schedule survey number is exclusive property of the plaintiff,

inspite of their knowledge, the defendants 1 to 7 high handedly

encroached into the property and made permanent constructions


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inspite of the strong resistance of the plaintiff. Taking advantage of

the plaintiffs weakness and the pendency of the second appeal

No.505/95 before the Honble High Court of A.P. the defendants high

handedly made constructions as shown in the plaint rough plan. The

constructions made by the defendants over the suit schedule property

shown as AECF and GBHI portion of the plaint rough plan are illegal

constructions and are liable to be demolished.

At this juncture, the Court made observation that the plaint

must file under Sec.39 of the Specific Relief Act, 1963, the plaintiff

must ask a negative mandatory injunction. Why this Court insisting

on sections of laws is that on perusal of the plaint title itself the Court

must come to the conclusion that the plaintiffs prayer is crystal clear

i.e. why this Court insisting the plaintiff to file a suit under appropriate

provision of law. Since the defendants are very powerful and are

having much political influence the plaintiff filed the present suit for

declaration of his title and possession the plaint schedule property in

an extent of Ac.0.36 cents and for consequential relief of permanent

injunction restraining the defendants and their men from interfering

with plaintiffs peaceful possession and enjoyment over the suit

schedule property and for mandatory injunction for removal of the

constructions made by the defendants 1 to 7 in the plaint schedule

property shown as AECF and GBHI portion and for delivery of the

property that was encroached by the defendants 1 to 7 high

handedly.

The cause of action for the suit arose on the date when the

plaintiffs ancestors acquired the suit schedule property and on the

date when the plaintiffs father sold an extent of Ac.0.90 cents of land

from out of Ac.1.26 cents by retaining Ac.0.36 cents under registered

sale deed dt. 23-10-1956 and on the date when G.Narasa Reddy
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thought whom the defendants are claiming the property filed suit in

OS 220/83 on the file of District Munsif Court, Hindupur and on

24-6-91 when the said suit was dismissed on merits and on the date

when AS 23/91 was filed against the decree and judgment in OS

220/83 and on 10-1-1995 when AS 23/91 was dismissed on merits

and on the date when the second appeal No.505/95 was preferred and

on 21-2-2007 when the said second appeal was dismissed on merits

and on the dates when the defendants tried to encroach into the suit

schedule property and on 4-7-05 and 14-8-2003 when the plaintiff

got issued notice to the authorities concerned when the defendants

tried to make constructions in the suit schedule property by obtaining

loans and permissions and on subsequent dates when the defendants

made constructions in the portion of the plaint schedule property

shown as AECF and BGHI portion are all at Honnampalli village of

Parigi Mandal within the jurisdiction of this Court. Hence the suit.

5. Now let us come to the averments what are made in the written

statements filed by the defendants 1 to 3 and 4 to 7 as counter to the

plaint.

The defendant No.2 filed a detailed written statement under

Or.8 R. 1 and 2 of CPC and the defendants 1 and 3 filed memo on

1-10-2010 submitting to adopt the written statement filed by the

second defendant and the same is considered and taken into

consideration.

The written statement of Defendant No.2 runs as follows: The

defendants submits their sublime supplications that the suit is bad

and not maintainable either in law or on facts as the plaintiff alleges

that the suit schedule property was and is his ancestral property. If

such allegations are true, the plaintiff alone cannot maintain the suit
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by himself and all the legal heirs of the original pattadars become

entitled to own and possess of such property by way of succession.

The defendants 1 to 3 further submits that the disputed land

was in S.No. 255-2 and it was an extent of Ac.1.26 cents which is

claimed to be ancestral property of the plaintiff family prior to

23-10-1956. The plaintiff shall be put to strict proof of such

allegations. The defendants 1 to 3 further more submitted that out of

such property, the plaintiff alleges that an extent of Ac.0.90 cents was

sold in favour of Mandla Govindappa alias Govindareddy through a

registered sale deed dt. 23-10-1956, by retaining another extent of

Ac.0.36 cents. These defendants are not aware of the said allegations

and the plaintiff shall be put to strict proof of the same. If such

allegations are true, the remaining extent of Ac.0.36 cents could be

inherited by all the legal heirs of the original owners. The plaintiff

alone cannot claim absolute and exclusive right and title to the said

extent and he cannot maintain the suit. The defendants further

submitted that Mandala Sanjeeva Reddy father of plaintiff and his

brother Mandala Narayana Reddy have succeeded to the suit schedule

property. It is therefore deemed that all the legal heirs of the

Mandala Sanjeeva Reddy and Mandala Narayana Reddy shall succeed

to all their joint family properties including the suit schedule property.

The said Mandala Narayana Reddy is alive and he has also got three

sons namely Venkatarami Reddy, Sreenivasa Reddy and Hanumantha

Reddy and 3 daughters Saraswathamma, Sakunthalamma and

Subbashinamma. All of them remain the co-owners of the suit

schedule property apart from the branch of the plaintiff. The

defendants further submitted that Sanjeeva Reddy father of the

plaintiff has got four sons namely Venkatarami Reddy, the plaintiff,

Jayarami Reddy and Kesava Reddy whereas he has got two daughters
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namely Lakshmamma and Rathnamma. The said legal heirs of

Mandala Sanjeeva Reddy are deemed to become the co-owners of the

suit schedule property along with the legal heirs of Mandala Narayana

Reddy.

The defendants further submitted that the plaintiff cannot even

for the sake of arguments be imagined to own possess and enjoy the

suit schedule property as his own. All the legal heirs of late Sanjeeva

Reddy along with Mandala Narayana Reddy and his children named

above are all therefore necessary and proper parties to the suit. The

plaintiff alone filed the suit ignoring all the remaining co-owners of the

suit schedule property. The suit is therefore bad for non joinder of

necessary and proper parties and it is liable to be dismissed on that

ground alone.

The defendants 1 to 3 further submitted that the rough sketch

filed by the plaintiff is a self-serving document which does not disclose

the actual facts on the field. It is prepared to suit the convenience of

the plaintiff. The physical features relating to the suit schedule

property are suppressed by the plaintiff and being misrepresented to

the Court to have wrongful gain, if possible. The rough sketch is false

and fabricated and cannot be made use of for any purpose

whatsoever. The defendants 1 to 3 further submitted that the grand

father of the defendants namely Narasimhaiah constructed the

residential house about 70 or 80 years and it is shown in the rough

sketch filed by the plaintiff. The said house is an existence for more

than 80 years and till now. This fact is well known to one and all

including the plaintiff and all the other members of his family. The

plaintiff has himself shown the said house in the rough sketch. The

plaintiff has got no right to lay a claim to such house at this stage for

any reason whatsoever. The plaintiff has lost his right, if any over the
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property now claimed by him by efflux of time too. The remedy of the

plaintiff is barred by limitation even if he has got any merits in the

allegations made in the plaint.

The allegation contained in paragraph No.5 of the plaint that he

is in actual physical possession of the entire extent of Ac.0.36 cents by

himself is totally false. The defendants 1 to 3 also denied that they

trespassed into the suit schedule property high handedly and

constructed house. The house is in village poramboke land and the

plaintiff has got nothing to do with the same. The question of trespass

by the defendants 1 to 3 does not arise at all. The defendants 1 to 3

and their ancestors have been residing in the said house shown in the

rough sketch for more than 80 years and they have been paying house

tax relating to the said houses. The plaint does not indicate the EFG

and H spots in his rough sketch enabling the defendants to such

allegations. The rough sketch is therefore conveniently prepared to

make false representations to the Court. The defendants 1 to 3

further denied that there is a cause of action for the suit and the cause

of action is invented for the purpose of litigation.

6. The defendant No.5 filed a detailed written statement under

Or.8 R. 1 and 2 of CPC and the defendants 4, 6 and 7 filed memo on

1-10-2010 submitting to adopt the written statement filed by the fifth

defendant and the same is considered and taken into consideration.

The written statement of Defendant No.5 runs as follows: The

plaintiff alleges that the suit schedule property was and is their

ancestral property. If such allegations are true, the plaintiff alone

cannot maintain the suit by himself and all the legal heirs of the

original pattadars become entitled to own and possess such property

by way of succession. The disputed land was in S.No. 255-2 and it


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was in an extent of Ac.1.26 cents which is claimed to be the ancestral

property of the plaintiffs family. Out of such property, the plaintiff

alleges that an extent of Ac.0.90 cents was sold in favour of Mandala

Govindappa through a registered sale deed dated: 23-10-1956 by

retaining another extent of Ac.0.36 cents. If such allegations are true,

the remaining extent of Ac.0.36 cents could be inherited by all the

legal heirs of the original owners.

The defendants 4 to 7 further alleged that the registered sale

deed dt.23-10-1956 was executed by Mandala Sanjeeva Reddy, the

plaintiffs father and the said sale deed was attested by Mandala

Narayana Reddy. The said Mandala Narayana Reddy is non other

than the brother of the executants namely Mandala Sanjeeva Reddy.

The sale of the property was therefore through a registered sale deed

deemed to be executed by the brothers, being the sons of Mandala

Ramaiah. It is therefore deemed that all the legal heirs of the said

Mandala Sanjeeva Reddy and Mandala Narayana Reddy shall succeed

to all their joint family properties including the suit schedule property.

The said Mandala Narayana Reddy is alive and he has also got three

sons namely Venkatarami Reddy, Sreenivasa Reddy and Hanumantha

Reddy and 3 daughters Saraswathamma, Sakunthalamma and

Subbashinamma. All of them remain the co-owners of the suit

schedule property apart from the branch of the plaintiff. The

defendants further submitted that Sanjeeva Reddy father of the

plaintiff has got four sons namely Venkatarami Reddy, the plaintiff,

Jayarami Reddy and Kesava Reddy whereas he has got two daughters

namely Lakshmamma and Rathnamma. The said legal heirs of

Mandala Sanjeeva Reddy are deemed to become the co-owners of the

suit schedule property along with the legal heirs of Mandala Narayana

Reddy. The plaintiff cannot claim as sole owner of the property and
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cannot claim that he is in possession and enjoyment of the suit

schedule property alone. So, all the legal heirs of the late Mandala

Sanjeeva Reddy and Mandala Narayana Reddy and his children named

above are all therefore necessary and proper parties to the suit. The

plaintiff alone filed the suit ignoring all the remaining co-owners of the

suit schedule property. The suit is therefore bad for non joinder of

necessary and proper parties and it is liable to be dismissed on that

ground alone.

Whereas the defendants 4 to 7 further alleges in their written

statement that the rough sketch filed by the plaintiff is a self-serving

document which does not disclose the actual facts on the field. The

defendants 4 to 7 further stated that the father of the defendants 4 to

7 namely Govindappa alias Govinda Reddy purchased Ac.0.90 cents

from Mandala Sanjeeva Reddy the father of the plaintiff and his

brother Narayana Reddy. Since the date of purchase, the said

Govinda Reddy owned and enjoyed the property purchased by him

since then. The said Govinda Reddy father of the defendants 4 to 7

constructed a residential house in the said property in the year 1963-

1964. The said Govinda Reddy was residing in the said house along

with the family members right from 1964 and till his death. The

defendants 4 to 7 continued to live in the said house for quite some

time jointly and then got partition of the said house about 32 years

back by dividing it into 4 shares.

The defendant 4 to 7 further alleged in their written statement

that they got their respective shares in the house in which they are

separately living even now. The defendants residential houses are in

existence right from 1964 and till now. This fact is well known to one

and all including the plaintiff and all the other members of his family.

The plaintiff has himself shown the houses of the defendants 4 to 7 in


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the rough sketch. Such rights of the defendants over the said houses

cannot be disputed at this stage. The plaintiff has lost his right, if any,

over the suit property now claimed by him by efflux of time too. The

remedy of the plaintiff is barred even if he has got any merits in the

allegations made in the plaint.

The defendants 4 to 7 further alleges that there is a drainage

channel running north to south in between the houses of the

defendants on one side and the shed constructed by the plaintiffs

family on the other side and it is in existence for more than 50 years.

The plaintiffs ancestors never disputed the existence of such drainage

at any time. The village panchayat also constructed a permanent

drainage channel in the year 1996 by spending sufficient amount. The

family members of the plaintiff have raised no dispute with regard to

the existence of construction of such drainage to the eastern side of

the houses of the defendants 4 to 7. At no point of time, there was

any claim by the plaintiff or his family men to the property beyond

such drainage or their houses situated to the west of such drainage

channel. The plaintiffs prayer to remove such houses is baseless and

he is not entitled for any such relief.

The defendants 4 to 7 further stated in their written statement

that the plaintiffs rough sketch also shows the open space in between

the houses of the defendants 4 to 7 and his shed but he conveniently

avoided to mention it as a drainage channel. The defendants 4 to 7

further stated in the written statement that the plaintiff is in

possession of entire Ac.0.36 cents is totally false. The defendants 4 to

7 further stated that the allegation in paragraph No.8 of the plaint

that the 5th defendant stopped constructing mulberry shed is false and

he has in fact completed the construction and the shed is being used

by him now. The 5th defendant is financed by the government to


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construct the shed. The plaintiff never objected to such construction

at any time. The defendant No.5 constructed the shed in the year

2005 but the existence of such shed is not shown in the rough sketch.

The allegations that the defendants 4 to 7 trespassed into the suit

schedule property highhandedly and constructed four permanent

structures occupying 0.20 cents of land on the western side of the

plaintiffs mulberry shed are false. The permanent structures are in

existence right from 1964 as already mentioned above. The

defendants 4 to 7 further stated that the said houses are in existence

since 1964. The voters lists of the village for the year 1984 filed

herein establish the existence of the defendants residential houses

and the same are shown in the rough sketch filed by the plaintiff. The

electric service was obtained by the father of the defendants 4 to 7 in

1977 itself. The electric service No. 62 is available for some decades

which fact is proved from their bills for 6/87, 6/88 and 6/89 as well as

for 8/2005. The household supply card issued by the government in

the name of the father of the defendants 4 to 7 in the year 1993

which establishes the existence of the house in D.No.2/20 even prior

to 1993 itself and other denials are similar in nature.

7) Basing upon the above pleadings, the following issues were

settled for trial.

1) Whether the plaintiff is the owner of the plaint schedule


property and if so, whether he can be entitled for declaration
of his right and title over the plaint schedule property and
possession?

2) Whether the registered sale deed dazted 23-10-1956


executed by M.Sanjeeva Reddy father of the plaintiff is
binding on the plaintiff ?

3) Whether the suit is bad for non joinder of necessary parties?

4) Whether the plaintiff is not the owner of the suit property as


contended by the defendants in the written statement?

5) Whether the suit claim is barred by limitation as contended


by the defendants in the written statement?
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6) Whether the framing of suit for declaration and possession by


the plaintiff is maintainable?

7) To what relief?

8) On behalf of the plaintiff, the plaintiff himself examined as PW1

and got marked Exs.A1 to A7. The plaintiff also examined his brother

as PW2 in order to prove his case. On behalf of the defendants,

DWs.1 to 3 examined and got marked Exs.B1 to B.27.

9) Heard the arguments on both sides. The learned counsel for

defendants 4 to 7 filed written arguments apart from his oral

arguments.

10) Issue Nos. 1 to 6: The plaintiff namely M. Ramanjana

Reddy has filed his chief-affidavit in support of proving the facts made

in the plaint. PW1 deposed that he is son of M.Sanjeeva Reddy, Hindu

by religion, husbandman by occupation, aged about 58 years,

Honnampalli, Parigi Mandal and he filed the suit for permanent

injunction and for other reliefs against the defendants. These facts are

relevant u/sec.9 of the Indian Evidence Act,1872 as the facts discloses

the facts which are introductory in nature. Most of the facts which are

stated by the plaintiff in the suit are one and the same of the plaint

filed by the plaintiff.

This Court perused Ex.A1 dt.23-10-1956 which is registration

extract of sale deed executed by Mandala Sanjeeva Reddy son of

M.Ramaiah. The said Mandala Sanjeeva Reddy is the father of the

plaintiff. The said document bearing No.929/1956. It is mentioned in

the second page of the registration extract of sale deed that out of

Ac.1.26 cents in S.No. 255-2, the said Mandala Sanjeeva Reddy sold

away Ac.0.90 cents to M. Govindapps @ Govinda Reddy. Since Ex.A1

is more than thirty years old document u/sec. 90 of the Indian


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Evidence Act, 1872. May presumption as to document of thirty years

old may be taken into consideration.

Where any document, purporting or proved to be thirty

years old, is produced from any custody which the Court in

the particular case considers proper, the Court may presume

that the signature and every other part of such document,

which purports to be in the hand writing of any particular

person, is in that persons handwriting, and, in the case of a

document executed or attested, that it was duly executed

and attested by persons by whom it purports to be executed

and attested.
Further more, the registered sale deed is a public document within the

meaning of Sec. 74 (2) of the Indian Evidence Act,1872. The sale

deed is a private document. Record of the sale deed kept in Sub

Registrar Office is a public record of private document. The

registration does not prove the document, nor it is thereby becomes a

private document by production of the register from the Sub Registrar

office, a sale deed is not proved, it has to be proved. This was held in

Naresh Chandra v. State of West Bengal, AIR 1955 Cal. 398 ::

59 Cal. W.N.757.

Certified copy is obtained u/sec. 76 of the Indian Evidence Act,

1872. Sec. 77 of the Indian Evidence Act, 1872 provides that such

certified copies may be produced in proof of the contents of the public

documents or parts of the public documents of which they purport to

be copies. Sec. 78 (6) of the Indian Evidence Act, 1872 provides by

whom such certified copies are to be made.

PW1 further stated that after the death of his father, he

succeeded the property and he continued to be in possession and

enjoyment of the suit schedule property to the knowledge of all more

particularly to the knowledge of the defendants in the suit.


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At this juncture, this Court may be permitted to refer the cross-

examination of PW1 dt. 15-12-2011. The witness/plaintiff admitted

that the suit schedule property belongs to his grand father Ramaiah

and his grand father had two sons namely his father and Narayana

Reddy and his father is no more. His junior paternal uncle is alive. In

the cross-examination by the learned counsel for D1 to D3, the

plaintiff (PW1) admitted that his father blessed with one son and one

daughter through his first wife and three sons including himself and

one daughter through his second wife. The witness further stated that

they all separated and living separately since about 18 to 20 years.

There was partition which was reduced into writing on a white paper

among their three brothers. Their eldest brother already separated

long back from their three brothers.

But the partition deed which is reduced on white paper

not filed before this Court. As such this Court came to the

conclusion that there was no partition between the family members of

the plaintiff.

At this juncture this Honble Court may be permitted to invoke

Or.1 R.1 of C.P.C. As per the evidence of plaintiff in his cross-

examination on 16-10-2012, father of the plaintiff had blessed with

one son and one daughter through his first wife and three sons

including himself and one daughter through second wife and they are

all separated and living separately since about 18 to 20 years. There

was partition which reduced into writing on white paper among their

three brothers. Their elder brother already separated long back from

his three brothers. This fact is to be proved as the half blood brother

of the plaintiff and his three brothers are equally entitled and they are

necessary parties to the suit.


O.S.No. 4 of 2010 Page 19 of 44

Order 1 Rule 1 of CPC provides that all persons may be


joined in one suit as plaintiffs where - (a) any right to relief
in respect of, or arising out of the same act or transaction
or series of acts or transactions is alleged to exist in such
persons, whether jointly, severally or in the alternative; and

(b) if such persons brought separate suits, any


common question of Law or fact would arise.

Or.1 R.1 of CPC speaks about necessary parties. At this juncture this

Court may be permitted to invoke Or.1 R.9 of C.P.C.

Or.1 R.9 of CPC Misjoinder and non joinder No suit shall be


defeated by reason of the misjoinder or non-joinder of parties,
and the Court may be every suit deal with the matter in
controversy so far as regards the rights and interests of the
parties actually before it.

Provided that nothing in this rule shall apply to non


joinder of necessary party.

This was amended by Act 104 of 1976, Sec.52 which comes into force
on 1-2-1997. For the plaintiff there is no remedy even in the appeal
u/sec. 99 priviso which provides that nothing in this rule shall apply to
non-joinder of necessary parties. The witness stated in his evidence
that there is a partition which bald statement and he never tried to
prove the same. So, the suit can be rejecting in limini for non joinder
of necessary parties.

If a suit is not properly constituted it may be dismissed for non-

joinder of necessary parties This was held in AIR 1979 SC 1682

The rule of mis joinder of parties is not applicable to necessary

parties. This was held in Thrilokinath Vs. Laxinariyan 1978 AWC

(Revenue) 69

The plaint as well as chief affidavit and the evidence of plaintiff

clearly discloses that the husband of first defendant namely Narasaiah

raised a dispute with the plaintiff in enjoying the suit schedule

property and filed a suit in O.S.220/1983 on the file of District Munsif


O.S.No. 4 of 2010 Page 20 of 44

Court, Hindupur for grant of permanent injunction and the said suit

was dismissed by the District Munsif Court, Hindupur by its decree

and judgment dated: 24-6-1991 on merits. Against such decree and

judgment, the above said Narasa Reddy preferred appeal in A.S.23/91

on the file of Additional District Judge, Hindupur and on merits the said

appeal was dismissed. Against the said decree and judgment in AS

23/91, second appeal was preferred by said Narasareddy in S.A. No.

505/1995 on the file of Honble High Court of A.P. and the same was

dismissed by its decree and judgment on 21-2-2007.

With regard to the above said appeal and second appeal

and its judgment, this Court perused Secs. 42 to 44 of Indian

Evidence Act, 1872 and came to the conclusion that Sec. 43 is

very relevant which provides judgments, orders or decrees

other than those mentioned in Secs. 40, 41, 42, are irrelevant,

unless the existence of such judgment, order or decree, is a

fact in issue, or is relevant under some other provision of this

Act.

Sec.41 of Indian Evidence Act,1872 is not at all relevant

because Sec.41 speaks about Sec.11 of C.P.Cc.1908 and it

speaks about Sec.300 of Cr.P.C 1973 and Article 20 (2) of

Constitution of India. Sec.41 provides that a final judgment,

order or decree of a competent Court, in the exercise of

probate, matrimonial, admiralty or insolvency jurisdiction is

final.

Sec.42 of Indian Evidence Act,1872 provides relevancy

and effect of judgments, orders or decrees, other than those

mentioned in Sec. 41 are relevant if they relate to matters of a

public nature relevant to the enquiry, but such judgments,


O.S.No. 4 of 2010 Page 21 of 44

orders or decrees are not conclusive proof of that which they

state.

Sec.44 of Indian Evidence Act,1872 provides fraud or

collusion in obtaining judgment, or incompetency of Court may

be proved. The only section i.e. left, is Sec.43 of Indian

Evidence Act.1872.

After perusing Sec. 42 of Indian Evidence Act,1872, this Court

came to the conclusion that u/sec. 43 of Indian Evidence Act, 1872 a

judgment which does not come within Secs. 40 or 41 or 42 of Indian

Evidence Act,1872, is irrelevant, unless the existence of such

judgment, order or decree, is a fact in issue, or is relevant under some

other provision of this Act. This Court cannot invoke Sec. 40 unless

the existence of such judgment, order or decree, is a fact in issue, or

is relevant under some other provision of this Act,1872 r/w 11 of

C.P.C. as the defendants in the present suit are not parties to OS

220/1983, AS 23/91, SA 505/95. So the judgments is not an issue

and those judgments are not relevant in some other provision of this

Act. As such the judgments and decrees passed in OS 220/83, AS

23/91 and SA 505/95 before the Honble High Court of A.P. are hereby

Justined any consideration. If the parties in OS 220/83 are one and

the same invoking sec. 40 of the Indian Evidence Act, 1872 r/w 11 of

C.P.C. the Court may pass necessary judgment.

The plaintiff (PW1) further stated that recently when the matter

is pending before the Honble High Court of Judicature of A.P. in S.A.

505/1995 the defendants 1 to 3 made some constructions in village

poramboke land which is lying immediately abetting to the eastern

side of the plaint schedule property in between road and the plaint

schedule property blocking the access to the plaintiff into the public

road, for which the plaintiff raised objections saying that the
O.S.No. 4 of 2010 Page 22 of 44

constructions made by the defendants 1 to 3 are obstructing the

plaintiff in using the road that was running immediately on the eastern

side of the plaint schedule. Inspite of the objections the defendants 1

to 3 made permanent structures over the government poramboke land

in the year 2005.

The plaintiff could not say the time of construction of permanent

structures in the government poramboke land as time is relevant fact

u/sec. 9 of the Indian Evidence Act, 1872 and it has to be corroborated

with the material particulars u/sec. 156 of the Indian Evidence Act,

1872.

If the fact of time is true and correct, it will have

corroboration which renders it more probable that the

witnesss testimony is true on any material point. This

corroboration evidence may be direct or circumstantial. This

was held in Rameshwar v. State of Rajasthan AIR 1952 SC 54.

The plaintiff (PW1) stated that recently when the matter is

pending before the Honble High Court of A.P. in S.A. 505/1995, the

defendants 1 to 3 made some constructions in the village poramaboke

and obstructed his road way to the extent of 26 x 26 feet into the suit

schedule property. The second appeal in S.A. 505/1995 was dismissed

on 21-2-2007. The plaint is filed on 25-3-2010 and the plaintiff (PW1)

further says that during the pendency of second appeal before Honble

High Court of A.P. if certain encroachments of the property of the

plaintiff were made, he is entitled to institute a suit within 12 years

under Article 65 of Limitation Act,1963. But what made the plaintiff

to wait for more than three years, is a question, which shows the

conduct of the plaintiff u/sec. 114 of the Indian Evidence Act,1872 for

encroachments made and permanent structures are raised by the

defendants 1 to 3.
O.S.No. 4 of 2010 Page 23 of 44

Delay in suing to enforce his rights raises a presumption

unfavourable to the person who makes such delay. This was

held in Bachan v. Hamid Hussain 10 B.L. R 54.

This Court cannot say that it is a delay as per law under Article

65 of the Limitation Act,1963. But what made the plaintiff to wait

more than three years or four years, is a question for consideration.

If it is a poramboke, why the revenue authorities are not made as

parties to the suit, is another question under Or.1 R.9 of CPC. So, the

revenue authorities of poramboke land, are necessary parties and

hence the suit is not maintainable as per Or.1 R.9 of C.P.C.

The plaintiff (PW1) further stated that he made a complaint

before the Station House Officer, Parigi P.S., but the police died not

take any action. It is not a complaint, it is an information furnished to

the police. If the information furnished to the police in a cognizable

case, if the FIR is not registered, second option available to the

plaintiff to file a complaint u/sec 2 (d) read with 190 and Sec.200 of

Cr.P.C. 1973 and moreover u/sec. 154 (3) of Cr.P.C.1973. If the

Station House Officer, Parigi P.S. not registered the F.I.R. the

substance of the information thereof shall be sent to the

Superintendent of Police concerned, who, if satisfied that the

information disclosed commission of cognizable offence shall either

investigate the case by himself or direct the investigation to be made

by any police officer who is subordinate to him, in the manner

provided by this Code. No one can say that he does not know law.

However, person is presumed to be known the law.

The plaintiff (PW1) further says that there was panchayat to be

beheld in this regard. In the panchayat, the defendants 1 to 3 agreed

to remove the encroachments made by them in the suit schedule


O.S.No. 4 of 2010 Page 24 of 44

property on eastern side. But the defendants 1 to 3 did not remove

the encroachments and continued to be there. At this juncture, the

Court is compel to invoke Sec. 23 of the Indian Evidence Act, 1872.

Sec. 23 of the Indian Evidence Act, 1872: Admissions in civil

cases, when relevant In civil cases no admission is relevant, if

it is made either upon an express condition that evidence of it is

not to be given, or under circumstances from which the Court

can infer that the parties agreed together that evidence of it

should not be given.

The plaintiff (PW1) further stated that on 14-8-203 the

defendants 4 to 7 made a false representation before the Mandal

Development Officer, Parigi for grant of financial assistance for

construction of the houses along with other amenities. For which the

plaintiff got issued a notice to the Mandal Development Officer, Parigi

on 14-8-03. Again on 4-7-05 made an application to Assistant

Director, Sericulture, Hindupur for grant of financial aid for

construction of Mulberry shed in the suit schedule property. The

plaintiff got issued a notice to the Assistant Director, Sericulture,

Hindupur. These two notices were marked as Exs.A5 and A6. Inspite

of the objections made by the plaintiff, the defendants 4 to 7 high

handedly trespassed into the suit schedule property and constructed

four permanent structures to the extent of Ac.0.20 cents of the land

on the western side of the mulberry shed belongs to the plaintiff. This

piece of evidence will be evaluated with the evidence of the defendants

4 to 7.

With regard to Exs. A2, A3 and A4, this Court already evaluated

their evidentiary value. PW1 in his cross-examination stated that the

suit schedule property is ancestral property and at the same time he

says that his grand father has no right whatsoever in S.No. 255-2.
O.S.No. 4 of 2010 Page 25 of 44

Witness further admitted that his father do not have any patta form in

respect of S.No.255-2 and further says he does not know as to how his

father acquired the land in S.No. 255-2. PW1 further stated that he

does not know the name of the diglot pattadar in respect of S.No.

255-2 and he has not filed revenue record to show the earlier

ownership of the property in question. He further admitted the fact

he does not remember when his father and his junior paternal uncle

partitioned the property. He further more stated that the property

was orally partitioned and he denied that the children of his junior

paternal uncle are necessary and proper parties as they have got

share in the property and the witness further admitted that they are

four brothers and two sisters and their four brothers divided about 20

years ago and they orally partitioned their properties. Witness adds

the entire property stands in the name of his father and his grand

father has nothing to do with the property. This property exclusively

belonged to his father. He cannot say about the documents shown to

him. It is not true to suggest that this property was recorded in the

name of his grand father Ramaiah in revenue records. The plaint

schedule property fell to the share of the plaintiff in oral partition and

the same is incorporated in revenue records. In support of this oral

evidence, no document is submitted before the Court. Witness

admitted that there are no houses in 0.90 cents of land and he denied

all other suggestions given by the learned counsels for defendants.

Again PW1 was recalled as per orders in IA 258/12 dt.

16-10-2012. In the third line of the cross-examination by the learned

counsel for the defendants 1 to 3, witness stated that there was

partition which was reduced into writing on a white paper among their

three brothers. Whereas in the cross-examination held on 16-10-2012

the witness submitted that there was an oral partition. His eldest

brother already separated long back from their three brothers and the
O.S.No. 4 of 2010 Page 26 of 44

witness further stated that his father has another brother Narayana

Reddy and the witness adds that Narayana Reddy has no right in the

suit survey number and he is not aware whether his father and his

brother partitioned their property in writing. Again the witness says

that Ac.1.26 cents in suit survey number was self-acquired property of

his father and in his evidence and chief affidavit says that the suit

survey number property is ancestral property. Now he says it is self-

acquired property of his father and he do not know how his father

acquired that land and he do not have any idea whether his father and

the brother of his father were joined at the date of Ex.A1. He denied

that his father was the manager in the joint family and he sold the

property and he denied the share of his junior paternal uncle in

Ac.0.36 cents of land. Witness denied all other suggestions, but he

admitted the fact in the cross-examination held by the learned

counsel for the defendants 1 to 3 on 16-10-2012 at 8th line

from the bottom he has nothing to do with the poramboke land

and he has no raised any objection when the house was

constructed in poramboke land by the husband of the first

defendant. So with this admission the suit against D1 to D3 is

liable to be dismissed as admitted fact need not be proved

u/sec. 58 of the Indian Evidence Act, 1872. Ofcourse admissions

are not conclusive proof but they may part of evidence as per the

Indian Evidence Act, 1872. The witness is stopped from making any

further allegations as he has admitted that he is nothing to do with the

poramboke land and he has not raised any objection when the house

was constructed by the husband of first defendant.

11) PW2 M. Kesava Reddy testified before the Court that he is

third party to the suit. He knows the plaintiff and defendants in the

present suit as stated in his affidavit. But whereas the truth is PW2 is

fourth son of the M. Sanjeeva Reddy which means he is no other than


O.S.No. 4 of 2010 Page 27 of 44

the brother of the plaintiff. He further stated that after the death of

his father, he and his other two brothers namely M. Ramanjina Reddy

(plaintiff), Jayarami Reddy partitioned their family properties on

1-5-1989 with meets and bounds orally. The suit schedule property

and other properties were fallen to the share of plaintiff M. Ramanjina

Reddy. Since then his brother alone is enjoying the suit schedule

property in his own right. As per the allotment of the properties by

oral partition he and his other brothers are enjoying their respective

shares. Along with him, his other brothers also obtained pattadar pass

books and title deeds from the Mandal Revenue Officer, Parigi for the

properties allotted to their shares separately. He further stated in his

affidavit that the plaintiff alone is entitled to the suit schedule

property. He further stated that himself and his other brother

namely Jayarami Reddy are nothing to do with the suit schedule

property, though it is stands in the name of his father.

The witness was vastly cross-examined by the learned counsel

for defendants 4 to 7. In the cross-examination, he stated that his

father had two wives and his father had one son and one daughter

through his first wife and his father had three sons and one daughter

through the mother of PW2 i.e. second wife. The suit schedule

property was the self-acquired property of his father. He further

stated that he is not aware from whom, his father purchased the

properties. He admitted that he has not filed his pass book in Court.

He further admitted that the defendants 4 to 7 constructed houses in

the suit schedule land about ten years ago. Since the witness was

examined on 7-8-2012, ten years ago means in the year 2002 the

defendants 4 to 7 constructed houses in the suit schedule property as

per the evidence of PW2. The plaintiff also constructed his house in

the portion of suit schedule land. The witness further stated that she
O.S.No. 4 of 2010 Page 28 of 44

cannot exactly say how much extent of the suit schedule property is in

possession of the plaintiff and he denied that the oral partition of their

properties is false. He also stated before the Court that the plaintiff

raised objection while the constructing the houses of the defendants 4

to 7 and he is not aware whether the father of defendants 4 to 7

constructed the house in the plaint schedule property in the year

1966.

The witness was recalled as per orders in IA 258/12 dated:

16-10-2012 and the witness cross-examined by the learned counsel

for defendants 1 to 3. Witness admitted clearly in the second of his

cross-examination that they have partitioned their properties in writing

and he did not remember who is the scribe of the partition document

and who are attestors and further stated that he do not know when his

father and his brothers divided.

In the second para of the chief affidavit, PW2 categorically

stated that after the death of his father, himself and his other two

brothers namely M. Ramanjina Reddy (plaintiff) and M. Jayarami

Reddy partitioned their family properties. On 1-5-1989 with meets and

bounds orally. Whereas in the cross-examination he admitted that

they have partitioned their properties in writing, but he do not

remember who is the scribe of the partition document and who are

attestors. It clearly shows the contradictions in the evidence. The

date of partition was orally on 1-5-1989 is for the name sake.

At this juncture, this Court invoke Sec. 145 of Indian Evidence

Act.

Sec.145 of the Indian Evidence Act,1872: Cross-examination as

to previous statements in writing A witness may be cross-

examined as to previous statements made by him in writing or

reduced into writing, and the relevant to matters in question,


O.S.No. 4 of 2010 Page 29 of 44

without such writing being shown to him, or being proved, but, if it

is intended to contradict him by the writing, his attention must,

before the writing can be proved, be called to those parts of it

which are to be used for the purpose of contradicting him.

Sec. 145 of the Indian Evidence Act,1872 has two limbs. The

first limb permits cross-examination of a witness with reference

to his previous statement without showing him the writing. Second

limb provides that if the witness disowns having made such

statement his attention must be drawn to that parts of the writing

which is sought to be used for the purpose of contradiction.

This Court dare to declare that the chief affidavit filed by the

witness is a previous statement and there is a contradiction between

chief affidavit of PW2 with his previous statement. Sec. 145 of the

Indian Evidence Act,1872 does not confine the right for contradiction

only to previous statement recorded on oath. This was held in Smt.

Sewaki v. State of Himachal Pradesh, 1981 Sim.L.C 258. The

witness is found to be asulating witness and this Court did not believe

the date of partition as stated by PW2 is 1-5-1989. If the date is

true, why the plaintiff neither mentioned in his plaint nor in his chief

affidavit nor in his evidence, is a million dollars question. The date is

invented purposefully for this case. As such the evidence of PW2

justined abroad.

12) Let us evaluate the evidence of DW1. DW1 is the second

defendant in the main suit. In the cross-examination by the learned

counsel for plaintiff, DW1 stated that 2-16 is the door number of his

house. The voters list was prepared of their village. His fathers

name is Narasareddy. The photo shown in Xerox copy of voters list of

his village for the year 2009 against door number 2-16 is of him. In

the said voters list against D.No. 2-17 Narasimha Reddy s/o Narasaiah
O.S.No. 4 of 2010 Page 30 of 44

is enrolled as voter. He denied the suggestion that Narasaiah is not

his father. He admitted that suit was filed by Narasareddy against

Ramanjina Reddy. He further stated before the Court his forefathers

constructed houses in government lands, but not in the suit survey

number. He openly admitted that he has no objection for removal of

the houses constructed in suit survey number.

13) Now let us see the evidence of DW2. DW2 is the third

defendant in the suit. The witness was cross-examined on

19-2-2013 and he admitted that he has no documents to show that

their houses have constructed about more than 70 years ago. He

admitted that the houses were in existence even prior to his birth. As

such he do not know whether these houses were constructed by his

father or by his grand father.

This Court also evaluated the evidence and the written

statement of the defendants 1 to 3 and their chief affidavits and the

suit is liable to be dismissed against the defendants 1 to 3 under the

grounds mentioned supra.

14) Now, let us to evaluate the evidence of DW3. DW3 is the

fifth defendant in the suit and he is duly authorized by the defendants

4, 6 and 7, who are his own brothers, to give evidence on their behalf

also and to defend the suit proceedings. The plaint allegations are

false to the extent specifically admitted herein. His evidence is most

important as he exhibited 27 documents and the same are marked by

this Honble Court. The best evidence is documentary evidence and

this Court evaluated each and every document in accordance with the

Evidence Act and pronounced judgment.

DW3 says in his chief affidavit that the plaintiff is Ex.sarpanch

and Ex. Single Window President of the village and he is veteran


O.S.No. 4 of 2010 Page 31 of 44

litigant and created this litigation only with an intention of harassing

all of the defendants. The plaint rough plan annexed to the plaint is a

fabricated document. There is no specific property shown in the suit

schedule which is sought to be delivered to the plaintiff in case of his

succeeding in the proceedings. DW3 further says that an extent of

0.21 cents shown as AECF and GBHI portions in respect of which the

reliefs are claimed are the imaginations of the plaintiff as against the

real facts on the field. The plaintiff, in paragraph No.5 of the plaint,

refers to his mulberry shed with D.No. 2/99 in Parigi village panchayat,

his residential house in D.No. 2/19-A, another house in D.No. 2-19.

No exact measurements of any of the above items of the property can

be found nor the exact extents nor their boundaries are shown

anywhere in the plaint. The pattadars to the land of Ac.1.26 cents in

S.No. 255-2 were one Mandala Sanjeevappagari Mandala Ramaiah and

another Mandala Pedda Hanumaiah as per the Register of Holdings

issued by the Sub Registrar, Hindupur. The said Ramaiah and

Hanumaiah are therefore entitled to own, possess and enjoy equal

shares in the said property. Though the plaintiffs claim is that the

suit schedule property is their ancestral one, he failed to explain as to

how much extent their erstwhile joint family owned and possessed in

the said property and also as to what extent their family succeeded to.

The said Mandala Ramaiah has got two sons Mandala Sanjeeva Reddy

and Mandala Narayana Reddy. The plaintiff herein is one of the four

sons of the said Mandala Sanjeeva Reddy and also being one of the

several grand sons of the said Mandala Ramaiah. The very case of the

plaintiff himself is that his father M. Sanjeeva Reddy sold Ac.0.90

cents out of the said Ac.1.26 cents in S.No.255-2 on 23-10-1956 for a

valid consideration amount of Rs.300/- through a registered sale deed

dt. 23-10-1956 to one Govinda Reddy, the father of the defendants 4

to 7. The said sale deed, though executed by the plaintiffs father


O.S.No. 4 of 2010 Page 32 of 44

M. Sanjeeva Reddy was attested by the plaintiffs grand father

Mandala Ramaiah and the plaintiffs junior paternal uncle Mandala

Narayana Reddy. The plaintiff had or has no dispute about the

contents of the said sale deed and the acquisition of the ownership and

possession by the vendee M. Govinda Reddy who is the father of the

defendants 4 to 7. DW1 further stated that the defendants under the

management of his father Govinda Reddy had been in possession and

enjoyment of the said Ac.0.90 cents of land having constructed

residential buildings for their families in the years 1963-1964 and

onwards. Since then, the defendants 4 to 7 are residing in the said

houses and by also using the other constructions as cattle shed,

mulberry sheds etc. This piece of sublime supplications will be

evaluated with the documentary evidence exhibited by DW3 in the

later course of judgment. The plaintiff had no occasion whatsoever

to question the defendants right over the said property since 1956.

The plaintiffs junior paternal uncle M. Narayana Reddy had some

altercation with fourth defendant and M. Govinda Reddy, the father of

the defendants 4 to 7 in the year 1984 with regard to the residential

houses constructed by M. Govinda Reddy and family in the property

purchased through the registered sale deed dt. 23-10-1956. The

matter was however amicably settled between them by payment of

Rs.90/- by the fourth defendant and his father to the said Mandala

Narayana Reddy. A sale deed was executed by M. Narayana Reddy

on 9-2-1984 in favour of fourth defendant and his father. The plaintiff

who is veteran litigant now raised a fresh litigation against the

defendants 4 to 7 alleging encroachment of some property on the

western side of his property. The plaint also shows some litigation

created by the plaintiff against the defendants 1 to 3 which is nothing

to do with the suit S.No.255-2 land. This part of matter meticulously

Dealt by this Court in supra.


O.S.No. 4 of 2010 Page 33 of 44

Causes of action alleged by the plaintiff against the defendants

1 to 3 on one side and the defendants 4 to 7 on other side are totally

different and distinct and there is nothing common in both the causes

of action. In factm there is no cause of action against any of the

defendants. The causes of action alleged by the plaintiff is totally

misconceived and do not exist at all. The clubbing of two different and

distinct causes of action to file one suit against different parties is not

warranted and the suit is hence liable to be dismissed on that ground

alone.

DW3 further stated that the plaintiff has suppressed the facts

about the ages of the existing structures which are in fact in existence

for more than some decades. Such evasive tactics of the plaintiff are

intended to mislead the Court and to gain unlawfully. The defendants

4 to 7 have been residing in the respective houses independently after

partition amongst themselves that took place about 36 years by now.

The plaintiff has himself shown the independent houses belonging to

the defendants 4 to 7 in his rough sketch. The property belonging to

the defendants 4 to 7 on one side and that owned by the plaintiff on

the other side are separated by a drainage channel for more than 55

years now. A pucea channel is constructed in 1996 by the village

panchayat with the panchayat funds. The plaintiff though earlier got

elected as the village Sarpanch never objected to the construction of

the drainage channel nor his co-owners did.

DW3 further speaks about the documents that he exhibited and

marked by this Court. The copy of the declaration under Sec. 8/18 of

Mandala Narayanappa before the Sub Collector, Penukonda and the

1-B register copies in the name of the plaintiff and his brothers

individually are produced which show that the plaintiff is divided from

his brothers long back. The online copies of the ration cards issued to
O.S.No. 4 of 2010 Page 34 of 44

in the names of the plaintiff, his brothers and the plaintiffs sons

individually leave no scope for suspicion about the plaintiffs getting

partitioned himself not only from his brothers but also from his own

sons. The plaintiff therefore not entitled to contend that he has got

the right to file the suit in respect of the property shown in the plaint

schedule.

Let us come to evaluate the evidence of DW3 with documentary

evidence. Ex.B1 is one of the registered sale deed executed by

Mandala Sanjeeva Reddy father of the plaintiff on 23-10-1956. This

document is also exhibited as Ex.A1 and evaluated in full at length.

This Court perused Ex.B2 which was issued on 17-8-1977 in the

name of M. Govindapa as electricity consumption charges of Rs. 30-00

paid by him. Ex.B3 Household supply card is issued in the name of M.

Govindapp in the year 1993. Exs.B2 and B3 are public documents

within the meaning of Sec.74 of Indian Evidence Act, 1872 as they are

revenue documents. This was held in Guru Amarjit Singh Vs. Rattan

Chand (1993) 4 SCC 349.

Ex.B4 is original Voters List of 1984 for Dhanapuram village h/o

Sirekolam, Parigi Mandal. It is also a public document. Even the

Honble Supreme Court held that certified copies of electoral roll is

also public document Aina Devi v Bachan Singh AIR 1980 All

174. Electoral roll is public document held in Kirtan v. Thakur

AIR 1972 Ori.158. It is settled law that original voters list is a public

document.

Ex.B5 is the original receipt issued by APSEB for collection of

consumption charges for 6/87on 14-8-87 for Rs.60/-. Ex.B6 is the

original receipt issued by APSEB for collection of consumption charges

for 6/88 on 14-8-88 for Rs.83-00. Ex.B7 is the original receipt issued

by APSEB for collection of consumption charges for 6/89 on 30-7-89


O.S.No. 4 of 2010 Page 35 of 44

for Rs.86/-. Ex.B8 is the original receipt issued by APSEB for collection

of consumption charges for 8/05 on 23-12-2007 forRs.60/-. Ex.B.9 is

Xerox copy of household card in the name of fifth defendant in which

the date is not mentioned. Ex.B.10 is certified copy of Record of

Holdings pertaining to the land in S.No.255-1 of Sirekolam village dt.

19-12-2011. Ex.B11 is original sale deed executed by M. Narayana

Reddy in favour of fourth defendant dt. 9-2-1984. Though it is not a

registered document, the stamp paper is purchased on 9-2-1984. At

the time of exhibiting and marking this document, the learned counsel

for plaintiff has not objected.

The facts which are admitted need not be proved u/sec.

58 of the Indian Evidence Act, 1872. This was held in Vice

Chairman v. Girdharilal (2004) 6 SCC 325. But however

admission cannot create title. This was held in M.P. Wakf

Board v Subhan (2006) 10 SCC 696.

Admissions are two kinds. One is judicial admission and

the second is extra judicial admission. Admitting the document

by adverse party is judicial admission. No fact need be proved

in any proceeding which the parties thereto or their agents

agree to admit at or before the hearing or which by any rule of

pleading in force at the time they are deemed to have admitted

by their pleadings. This was held in Mahendra Manilal V.

Sushila AIR 1965 SC 364.

Admissions in pleadings or judicial admissions,

admissible u/sec. 58 of the Indian Evidence Act, 1872, made by

the parties or their agents at or before the hearing of the case

by themselves can be made the foundation of the rights of the

parties. This was held in Nagindas Ramdas v. Dalpatram AIR


O.S.No. 4 of 2010 Page 36 of 44

1974 SC 471, 476-477. The special feature of judicial

admission is its conclusiveness upon the party making it.

Ex.B12 is the certified extract of Revision Register extract for

assessment of house tax for the period ending on 1-4-1988. This

assessment of house tax register is also a public document. Perused

in detail and believe the same as it inspires confidence of this Court.

Ex.B13 is original house tax demand notice and receipts in the

name of fourth defendant on 12-11-2005. Ex.B14 is original house

tax demand notice and receipts in the name of fifth defendant dt.

18-10-99. Ex.B15 is original house tax demand notice and receipts in

the name of sixth defendant in 6 Nos. one such receipts shows dt.

13-11-99 and the other receipts shows different dates. Ex.B16 is

original house tax demand notice and receipts in the name of seventh

defendant in 2 Nos. Ex.B.17 is the declaration under Sec.8/18 of the

A.P. Land Reforms Act, 1973 in C.C.No.893/1975 of the Sub Collectors

office, Penukonda dt. 9-4-1975 in the name of M. Narayanappa. If

one peruse this document it is sufficient to disprove the case of the

plaintiff. Ex.B.18 is Meeseva Certificate of ROR-18 form in the name

of Venkatarami Reddy dt. 20-4-2015. Ex.B.19 is Meeseva Certificate

of ROR-18 form in the name of Ramanjina Reddy dt. 17-4-2015.

Ex.B.20 is Meeseva Certificate of ROR-18 form in the name of

Jayarami Reddy dt. 17-4-2015. Ex.B.21 is Meeseva Certificate of

ROR-18 form in the name of Kesava Reddy dt. 17-4-2015. Ex.B.22 is

the Online copy of ration card RAP 12580051172 in the name of

Venkatarami Reddy. Ex.B.23 is the Online copy of ration card RAP

125800600329 in the name of Ramanjina Reddy for D.No.2-19.

Ex.B.24 is the Online copy of ration card RAP 125800600158 in the

name of Jayarami Reddy for D.No.2-73 (A). Ex.B.25 is the Online

copy of ration card RAP 125800600334 in the name of Kesava Reddy

for D.No. 2-73. Ex.B.26 is the Online copy of ration card RAP
O.S.No. 4 of 2010 Page 37 of 44

125800600791 in the name of Sanjeeva Reddy son of plaintiff.

Ex.B.27 is the Online copy of ration card RAP 125800600793 in the

name of Prasad Reddy son of the plaintiff.

Now all the ration cards are public documents? Yes. These

documents are electronic documents within the meaning of Sec.73 of

the Indian Evidence Act,1872 and u/sec. 29-A of Indian Penal Code,

1860 and within the meaning of Sec. 2 (t) of Information Technology

Act, 2000.

The learned counsel for plaintiff cross-examined DW3 to some

extent. The witness in the cross-examination for the questions asked

by the learned counsel for plaintiff, he deposed that no suit especially

OS 220/83 not filed against him in the District Munsif Court, Hindupur.

He further stated that he does not know G. Narasa Reddy s/o

Narasimha Reddy and he is not related to him and he does not

anything about the suit filed by Narasa Reddy against the plaintiff He

admitted that he knows the fourth defendant who is his brother and

he knows the defendants6 and 7 who are his younger brothers. No

written application is submitted by seventh defendant by name

Eswara Reddy to Mandal Revenue Officer on 14-8-2003. It is true

that on 4-7-2006 he made an application to the Assistant Director of

Sericulture for grant of financial assistance for construction of

mulberry shed. The land of that shed is within the suit schedule

survey number property. He further stated that he does not know the

fact that the plaintiff objected as to the financial assistance for

construction of mulberry shed. He denied further suggestion that he

did not care for such objection and proceed further in construction of

mulberry shed. He further denied that he does not have any

connection with the suit schedule property. He further stated that he

do did not find anything about OS 220/83.


O.S.No. 4 of 2010 Page 38 of 44

After perusing the cross-examination of DW3 by the learned

counsel for plaintiff, I dare to make statement that the art of cross-

examination is dead. The cross-examination neither relates to the

facts in issue nor relevant facts and the learned counsel for plaintiff did

not deny not even single document exhibited by DW3 and marked by

this Court. As such all the documents are taken into consideration and

those documents are believed.

No man was ever endowed with a judgment so correct and

judicious, but that circumstances, time, and experience would teach

him something new and appraise him that of those things, with which

he thought himself the best acquainted, he knew nothing and that

those ideas which in theory appeared the most advantageous were

found, when brought into practice, to be altogether inapplicable. This

was stated by a person by name Terence. Terance was dramatist of

ancient Rome who born in Greece during 190-159 B.C. whose

comedies were based on his works by Menandar.

This Court knows pretty well, judgment is not framed as per

normal course i.e. mentioning every issue or decision on that issue.

But this Court courageous and courteous mentioned that what issues

framed by this Court are answered.

However, the fifth issue whether the suit claim is barred by

limitation as contended by the defendants in the written statement?

After perusing Exs.B1 to B27 any prudent man can make in his

judgment that the houses constructed by the defendants 4 to 7 are

age old and they must be constructed in 1963-1964 as alleged by the

defendants 4 to 7 are true and correct. The bills relating to electricity

consumption charges and house tax receipts and demand notices

reveals the same fact. PW1 (plaintiff) has not stated any time of

partition of their property. Whereas PW2 in his evidence more


O.S.No. 4 of 2010 Page 39 of 44

especially in his chief affidavit stated that the properties were

partitioned in writing on 1-5-1989. The such white paper on which

partition deed is executed by the family members not tendered as

documentary evidence before this Court and so this suit is barred by

limitation. U/sec. 3 of the Limitation Act, 1963 all suits, appeals,

applications made after expiry of prescribed period, shall be

dismissed even though the defendants have not taken limitation as

defence.

U/Sec. 27 of the Limitation Act, 1963, it provides adverse

possession.

Sec. 27 of the Limitation Act, 1963 provides

Extinguishment of right to property At the

determination of the period hereby limited to any

person for instituting a suit for possession of any

property, his right to such property shall be

extinguished.

As per Article 65 of the Limitation Act, 1963 for the possession

of immoveable property or any interest thereof based on title has to

be filed within 12 years. The plaintiff (PW1) made a bald allegation

that during the pendency of second appeal in S.A.No. 505/1995 the

defendants raised permanent structures in the suit schedule

property, is completely false and fabricated for the purpose of this

case. After perusing Exs.B1 to B27, the permanent structures raised

in the disputed land/suit schedule property is in existence prior to

1977 itself.

The issue No.3 is answered in detail in supra.

15) Now the point for consideration is though the specific issue

is not framed whether the plaintiff can make join of cause of action
O.S.No. 4 of 2010 Page 40 of 44

against the defendants 1 to 3 and the cause of action against the

defendants 4 to 7 together or not?

The fourteenth paragraph of the chief affidavit of DW3 reveals

that the causes of action alleged by the plaintiff is totally

misconceived and do not exist at all. The clubbing of two different and

distinct causes of action to file one suit against different parties is not

warranted and the suit is hence liable to be dismissed on that ground

alone.

Now let us see Order 2 Rule 4 of Code of Civil Procedure, 1908.

Order 2 Rule 4 of C.P.C.: Only certain claims to be joined for


recovery of immovable property No cause of action shall, unless
with the leave of the Court, be joined with a suit for the recovery
of immovable property, except

(a) claims for mesne profits or arrears of rent in respect of the


property claimed or any part thereof;

(b) claims for damages for breach of any contract under which the
property or any part thereof is held; and

(c) claims in which the relief sought is based on the same cause of
action:

Provided that nothing in this rule shall be deemed to prevent any


party in a suit for foreclosure or redemption from asking to be put
into possession of the mortgaged property.

Order 2 Rule 4 of Code of Civil Procedure, 1908 does not permit

the plaintiff to club the causes of action of different persons. This

objection is taken at earliest possible time by the defendants 4 to 7

under Or.2 R.7 of C.P.C

Or.2 R.3 of C.P.C- Joinder of causes of action (1) Save as


otherwise provided, a plaintiff may unite in the same suit
several causes of action against the same defendant, or the
same defendants jointly; and any plaintiffs having causes of
action in which they are jointly interested against the same
defendant or the same defendants jointly may unite such
causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the


Court as regards the suit shall depend on the amount or value
of the aggregate subject-matters at the date of instituting
O.S.No. 4 of 2010 Page 41 of 44

the suit.

DW3 is right in law for raising objection in paragraph No.14 of

his chief affidavit that the plaintiff is not entitled to club two causes of

action against two kinds of persons together.

16) Viewing in any angle, the plaintiff is totally failed to prove his

case and the defendants 1 to 3 successfully succeeded in disproving

the case against them as they raised permanent structures in the

government poramboke land and not in the suit schedule property and

PW1/plaintiff himself admitted in the cross-examination that he is

nothing to do with the permanent structures raised by the defendants

1 to 3 in the government poramboke land as admitted fact need not be

proved, held in Utta

The defendants 4 to 7 proved their case by exhibiting Exs.B1 to

B27 on their behalf and marked all the documents.

The plaintiff filed rough sketch which is private document.

Ex.A7 is a private document which means a document of private

person, gen at be a party to the suit. However such document cannot

be taken into consideration in proving the case. As such Ex.A7 is

discarded in taking into consideration and Ex.A1 is considered at

length in evaluating the evidence of plaintiff (PW1). With regard to

judgments of OS 220/83 and subsequent appeal in AS 23/91 and

second appeal in SA 505/1995 on the file of Honble High Court of

A.P. and discussed at length u/sec. 43 of the Indian Evidence Act,

1872.

17) After perusing and evaluating the evidence on both sides,

this Court is under the considered view, the plaintiff is totally failed in

proving his case, whereas the defendants 1 to 3 and 4 to 7 have

successfully succeeded in disproving the case of the plaintiff.


O.S.No. 4 of 2010 Page 42 of 44

18) Since the plaintiff filed vexatious suit against the defendants

and the defendants defended the vexatious suit, the plaintiff is liable

to pay exemplary costs to the defendants u/sec. 35 (A) of Code of

Civil Procedure,1908.

19. Issue No.7: In the result, the suit is dismissed with costs by

awarding exemplary costs of Rs.10,000-00 payable to the defendants

for bearing the expenses in defending the vexatious suit.

Typed my dictation by the Stenographer, corrected and


pronounced by me in open Court on this the 16th day of November,
2016.

Additional District Judge,


Hindupur.

Appendix of Evidence
Witnesses examined for
Plaintiff Defendants

PW.1: M. Ramanjina Reddy (Plaintiff) DW1/G.C. Narasimha Reddy


PW.2: M. Kesava Reddy DW2/G.Narayana Reddy
DW3/M. Venkatarami Reddy

Exhibits marked for Plaintiff

Ex.A.1/23-10-1956 Registration extract of sale deed


Ex.A2/Certified copy of decree and judgment in OS 220/83
Ex.A3/Certified copy of decree and judgment in AS 23/91
Ex.A4/ Certified copy of decree and judgment in SA 505/1995
Ex.A5/Office copy of notice dt. 14-8-03
Ex.A6/Office copy of notice dt. 4-7-2005 issued to Asst. Director,
Sericulture, Hindupur

Ex.A7/Rough sketch
Exhibits marked for defendants

Ex.B1/23-10-1956 Registered sale deed executed by Mandala


Sanjeeva Reddy father of the plaintiff

Ex.B2/17-8-1977 Receipt for Electricity Consumption charges stands


in the name of M. Govindapa

Ex.B3/ Household supply card stands in the name of M. Govindappa

Ex.B4/Original Voters List of 1984 for Dhanapuram village


O.S.No. 4 of 2010 Page 43 of 44

Ex.B5/14-8-87 Original receipt issued by APSEB for collection of


consumption charges for 6/87

Ex.B6/14-8-88 Original receipt issued by APSEB for collection of


consumption charges for 6/88

Ex.B7/30-7-89 Original receipt issued by APSEB for collection of


consumption charges for 6/89

Ex.B8/23-12-2007 Original receipt issued by APSEB for collection of


consumption charges for 8/05

Ex.B.9/Xerox copy of household card in the name of D5

Ex.B.10/Certified copy of Record of Holdings pertaining to the land in


S.No.255-1 of Sirekolam village dt. 19-12-2011.

Ex.B11/9-2-1984 Original sale deed executed by M. Narayana Reddy


in favour of fourth defendant

Ex.B12/Certified extract of Revision Register extract for assessment of


house tax for the period ending on 1-4-1988.

Ex.B13/12-11-2005 Original house tax demand notice and receipts in


the name of fourth defendant

Ex.B14/18-10-99 Original house tax demand notice and receipts in the


name of fifth defendant

Ex.B15/Original house tax demand notice and receipts in the name of


sixth defendant in 6 Nos.

Ex.B16/Original house tax demand notice and receipts in the name of


seventh defendant in 2 Nos.

Ex.B.17/Declaration under Sec.8/18 of the A.P. Land Reforms Act,


1973 in C.C.No.893/1975 of the Sub Collectors office,
Penukonda dt. 9-4-1975 in the name of M. Narayanappa.

Ex.B.18/Meeseva Certificate of ROR-18 form in the name of


Venkatarami Reddy dt. 20-4-2015.

Ex.B.19/Meeseva Certificate of ROR-18 form in the name of Ramanjina


Reddy dt. 17-4-2015.

Ex.B.20/Meeseva Certificate of ROR-18 form in the name of Jayarami


Reddy dt. 17-4-2015.

Ex.B.21/Meeseva Certificate of ROR-18 form in the name of Kesava


Reddy dt. 17-4-2015.
Ex.B.22/Online copy of ration card RAP 12580051172 in the name of
Venkatarami Reddy.

Ex.B.23/Online copy of ration card RAP 125800600329 in the name of


Ramanjina Reddy for D.No.2-19.

Ex.B.24/Online copy of ration card RAP 125800600158 in the name of


Jayarami Reddy for D.No.2-73 (A).
O.S.No. 4 of 2010 Page 44 of 44

Ex.B.25/Online copy of ration card RAP 125800600334 in the name of


Kesava Reddy for D.No. 2-73.

Ex.B.26/Online copy of ration card RAP 125800600791 in the name of


Sanjeeva Reddy son of plaintiff.

Ex.B.27/Online copy of ration card RAP 125800600793 in the name of


Prasad Reddy son of the plaintiff.

Additional District Judge


Hindupur