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2007 DIGILAW 688 (AP)

Chiriki Ranga Rao v. Kavelamudi Rekha

2007-07-24

P.S.NARAYANA

body2007
JUDGMENT : Facts in nut-shell: The unsuccessful defendants being aggrieved of the Decree and Judgment made in O.S. No.384/83 dated 27-7-1992, on the file of Subordinate Judge, Vijayawada, had preferred this Appeal. The respondent/plaintiff in the said suit instituted the suit O.S. No.384/83 aforesaid praying for the relief of recovery of possession of the plaint schedule property after removal of the thatched house, for mesne profits and other ancillary reliefs. The 1stdefendant died during the pendency of the suit and defendants 3 to 5 were added as the legal representatives of the deceased 1stdefendant as per orders in I.A. No.34/87 dated 23-3-1989. The learned Subordinate Judge, Vijayawada, in the light of the respective pleadings of the parties, having settled the Issues and additional Issues, recorded the evidence of P.W. to P.W.6, D.W.1 to D.W.4, marked Exs.A-1 to A-44, Exs.B-1 to B-20 and after recording findings in detail, arrived at a conclusion that the respondent herein/plaintiff in the said suit is entitled to recovery of possession of the plaint schedule property and also granted mesne profits at the rate of Rs.75/- per month from the date of suit till the date of realization. Aggrieved by the same, the present Appeal was preferred. 2. Respective pleadings of the parties: For the purpose of convenience, the parties hereinafter would be referred to as 'plaintiff'- and 'defendants'- as shown in O.S. No.384/83. The said suit was instituted by Kovelamudi Rekha, represented by her Power of Attorney Agent V.V. Bhoopal. 3. Averments made in the plaint: The plaintiff pleaded in the plaint as hereunder. It was pleaded that the plaintiff is the absolute owner of the house site with a thatched house therein in Punnammathota of Vijayawada City. The said property was settled on her by her father Sri K. Gopalakrishnaiah in July 1975 by a registered document towards her "pasupu kumkuma' and thus it is her "stridhana'. It was also pleaded that the father of the plaintiff in turn purchased the same from his brother Venkata Rama Rao in 1965 and earlier in 1964 the plaintiff's father and her five peternal uncles i.e., sons of Chandrasekhar Rao, partitioned the total extent of house site bequeathed to them by their paternal grandmother late Kancherla Kotamma, w/o. K.V. Ramaiah, by a registered Will before her death in April 1958. Subsequent to the partition of the said house site that fell to their respective shares. Subsequent to the partition of the said house site that fell to their respective shares. It was also further pleaded that one Ch. Bangaraiah, a trusted person of the household of this Kancherla family of Kotamma, was allowed to reside in the block of land by late K. Kotamma before her death. After the bequest and subsequent partition of the site by the six brothers, the said Bangaraiah's son Seethaiah purchased one of the plots (marked as G-1) at the extreme Southern end in the plan prepared by brothers at the time of partition. Bangaraiah's daughter and her husband Appa Rao purchased another adjacent plot (marked as "G') in the said plan from one of the brothers Madhavarao. Thus the 1stdefendant lived with her grand-father and her parents in the said premises till the early seventees. It was also further pleaded that the 1stdefendant as the grand daughter of the said Bangariah and daughter of Apparao, was a member of the joint family originally. The plaintiff's father Gopalakrishnaiah used to work as a Professor in U.S.A. till 1972. After his return to India, he worked at Hyderabad in Administrative Staff College. Some time after return of the plaintiff with her parents, the 1stdefendant sought for and was allowed to live with her husband in 1972 in the old thatched house in the suit schedule site because of the old acquaintance and attachment of defendants' family with that of the elders of the plaintiff's family and eversince she was being allowed to occupy the said house, just out of the considerations for the old acquaintance and also because of the fact that plaintiff's family was living at Hyderabad, not needing the schedule property for purposes of constructing a pucca building. The uncles of the plaintiff and other close relations living in Vijayawada had been looking after the plaintiff's interest in the schedule property. It was further pleaded that in 1975 when the father of the plaintiff wanted to settle the schedule property on her, he informed the defendants about the transfer and asked them to vacate the site, but the defendants implore him for indulgence promising to comply with such a demand to vacate whenever necessary. In 1979, the plaintiff applied for and got her name entered in the municipal records as "owner' of the property in the place of late Kotamma, after necessary enquiries. In 1979, the plaintiff applied for and got her name entered in the municipal records as "owner' of the property in the place of late Kotamma, after necessary enquiries. The property tax demands were being given to plaintiff's men and they as her agents and her predecessors-in-title had been paying all such taxes etc. It was also further pleaded that all these years since 1965 when the property was purchased by the plaintiff's father, taxes are being paid by him only for his men. It was also further pleaded that in April 1981 the plaintiff and her husband believing the oral representations of the defendants got a building plan approved and also secured permission of the Municipal authorities. At that time also the defendants pleaded for further accommodation. Thus the plaint schedule property always stood and continues in the names of either the plaintiff or her father and the predecessors-in-title. The defendants never gave cause for any suspicion about their intentions and the plaintiff or her father never thought it necessary to resort to any legal remedies, but in the last about one year or so, the defendants took wrong Counsel and are harbouring evil and selfish ideas of grabbing the valuable property and had been avoiding the plaintiff and her men and gaining time somehow or other. As time was passing, the plaintiff authorized her relation Sri V.V. Bhoopal to deal with her property and the defendants occupying the thatched shed and when oral requests proved to be of no use, the said authorized person Sri Bhoopal got a notice issued to defendants through his counsel on 29-1-1983. To the said notice, the defendants kept quiet for long but got a belated reply sent through their Advocate setting up false and absolutely untenable contentions stating inter alia that they purchased the property and resided in the house for the last 25 years without any let or licence and became absolute owners by adverse possession etc. Though it was not so necessary to refute such absurd contentions, the plaintiff's agent got a rejoinder notice sent with facts and particulars on 11-4-1983. Though it was not so necessary to refute such absurd contentions, the plaintiff's agent got a rejoinder notice sent with facts and particulars on 11-4-1983. It was also further pleaded that the plaintiff made it clear that the additions or alterations made by the defendants recently to the temporary thatched house were only made to complicate the matter for the plaintiff and that the defendants were at liberty to take all and if any belongings of the defendants when they vacate. It was further pleaded that there had been no response favourably even after the said notices to quit. The permission given to the defendants was expressly revoked and the stipulated time also had elapsed, but the defendants did not choose to vacate the schedule property and hence the plaintiff is obliged to file the suit for ejectment of the defendants from the suit property and for getting vacant possession of the same from the defendants. 4. Averments made in the written statement: In the written statement filed by the original defendants, the defendants 1 and 2, it was pleaded as hereunder. The allegations that the plaintiff is the absolute owner of the house site with a thatched house and that the said property was settled on her by her father in July 1975 by a registered document towards her "pasupu kumkuma' and that the property became her "stridhana' had been denied as not true and correct. The further allegations that the father of the plaintiff in turn purchased the same from his brother Venkatrama Rao in 1965 and that earlier in 1964 the plaintiff's father and her five paternal uncles, sons of Chandrasekhara Rao, partitioned the total extent of house site bequeathed to them by their paternal grandmother later Kancherla Kotamma w/o. K.V. Ramaiah, by registered Will before her death in April 1958 and that subsequent to the partition of the said house site some of the divided brothers alienated their plots of house site that fell to their respective shares also had been denied as false and concocted for the purpose of the present suit. It was also denied that the 1stdefendant lived with her grandfather and her parents in the said premises till the early seventees as false. It was also denied that the 1stdefendant lived with her grandfather and her parents in the said premises till the early seventees as false. It was further pleaded that the allegations that the 1stdefendant as the grand daughter of the said Bangaraiah and daughter of Apparao was a member of the joint family originally and that the plaintiff's father Gopala Krishnaiah used to work as a Professor in U.S.A. till 1972 and that after his return to India he worked at Hyderabad in the Administrative Staff College and that some time after return of the plaintiff with her parents the 1stdefendant sought for and was allowed to live with husband in 1972 in the old thatched house in the suit schedule site because of the old acquaintance and attachment of the defendants family with that of the elders of plaintiff's family and that eversince she was allowed to occupy the said house just out of considerations for the old acquaintance as stated supra and also because of the fact that the plaintiff's family was living at Hyderabad not in the schedule property for purposes of constructing a pucca building and that unless the plaintiff and other close relations living in Vijayawada had been looking after the plaintiff's interest in the schedule property had been denied as issues of falsehood invented only for the purpose of the suit. It was also further pleaded that the allegations that in 1975 when the father of the plaintiff wanted to settle the schedule property on her, he informed the defendants about the transfer and asked them to vacate the site but the defendants implored him for indulgence promising to comply with such a demand to vacate whenever necessary also had been denied as false. The allegation that the plaintiff got her name entered in the Municipal records as owner of the property in the place of late Kotamma after necessary enquiries in 1979 also had been denied as false. Further, it was pleaded that the allegation that the property tax demands were being given to the plaintiff's men and they as her agent and her predecessors-in-title had been paying all such taxes etc. is false. The allegation that all these years since 1965 when the property was purchased by the plaintiff's father taxes were being paid by him only or his men also is false. is false. The allegation that all these years since 1965 when the property was purchased by the plaintiff's father taxes were being paid by him only or his men also is false. The allegation that in April 1981 the plaintiff and her husband believing the oral representations of the defendants got a building plan approved and secured permission from the Municipal authorities is false. It was further specifically pleaded that the defendants never were demanded to vacate at any time and the allegation that the defendants pleaded for further accommodation is a lie. The allegations that the plaint schedule property always stood and continues in the names of either the plaintiff or her father and the predecessors-in-title and that the defendants never gave cause for any suspicion about their intentions and the plaintiff or her father never thought it necessary to resort to any legal remedies had been denied as absolutely false. It was further pleaded that the allegations made in para 7 of the plaint are all false excepting the exchange of notice. The allegation that in the last about one year or so the defendants stood wrong counsel and are harbouring evil and selfish ideas of grabbing the valuable property and had been avoiding the plaintiff and her men and gaining time somehow or other also had been denied as false. The allegation that the oral requests proved to be of no use and the plaintiff's authorized person got a notice issued to the defendants also had been denied as false. It was further pleaded that it is false to allege that the defendants made some additions or alterations to the thatched hut to complicate the matter. It was further specifically pleaded by the defendants that one Kancherla Kotamma was the owner of a total extent of site of about 3000 sq. yards in N.T.S. No.386, situate at Punnammathota, Vijayawada which includes the plaint schedule site and she has two sons namely Kancherla Chandrasekhara Rao and Kancherla Kesavarao. The said Kotamma had no female issues and she was fond of female children. The 1stdefendant was residing with her father in the site premises of Kancherla Kotamma since about 1950. The said Kotamma used to develop intimacy with the 1stdefendant who was then a child and the 1stdefendant used to spend most of the time with the said Kancherla Kotamma. The 1stdefendant was residing with her father in the site premises of Kancherla Kotamma since about 1950. The said Kotamma used to develop intimacy with the 1stdefendant who was then a child and the 1stdefendant used to spend most of the time with the said Kancherla Kotamma. As she had no female children in her house, Kotamma had all the affection and love towards the 1stdefendant. The marriage between the defendants was celebrated in the year 1957 and the said Kotamma had taken active part in performing the marriage. Subsequently the marriage between the defendants was consummated and both the defendants came to Vijayawada and were residing in the 1stdefendant's father's house for some time. At that time the 2nddefendant was seeking a job for his livelihood at Vijayawada and subsequently he was employed in Vishalandra news paper. It was also further pleaded that at that time the said Kotamma advised both the defendants to construct a small house of their own in the plaint schedule site and commence their married life therein. She also offered a site of 545 sq., yards to the defendants as gift as she had affection and love towards the 1stdefendant and her own daughter and she had plenty of other vacant site in the premises. But the defendants requested her to sell the said site to them as they felt constructing a house in a site belonging to others may create problems in future. It was specifically pleaded that the defendants then offered to pay a sum of Rs.2,300/- as value for the plaint schedule vacant site from out of the cash gifts they received during their marriage in 1957 and Kotamma had accepted the offer and received the sum of Rs.2,300/- offered by the defendants as consideration for the plaint schedule vacant site in February 1958 and delivered vacant possession of the plaint schedule vacant site and promised to execute a registered sale deed of the same as and when required by the defendants. The defendants then constructed a thatched house therein for the purpose of their residence and had been residing therein till now. But unfortunately, within a couple of months after the purchase of the plaint schedule site in February 1958 the said Kancherla Kotamma died and she could not execute the registered sale deed in favour of the defendants. The defendants then constructed a thatched house therein for the purpose of their residence and had been residing therein till now. But unfortunately, within a couple of months after the purchase of the plaint schedule site in February 1958 the said Kancherla Kotamma died and she could not execute the registered sale deed in favour of the defendants. The defendants could not expect the sudden demise of the Kotamma and out of confidence, affection and love towards the said Kotamma, they could not get the sale deed executed. Thus, it was pleaded that the defendants are the absolute owners of the plaint schedule property in possession and enjoyment since 1958 having purchased the same from late Kancherla Kotamma. As such, the plaintiff has no manner of right whatsoever over the plaint schedule property. It was further pleaded that apart from the purchase of the plaint schedule property concluded in February 1958 by the defendants with the said Kotamma, the defendants had been in possession and enjoyment of the plaint schedule property since 1958 as lawful owners continuously without any obstruction or objection from anybody since 25 years and neither the plaintiff nor her father or anybody ever objected and interfered with the peaceful possession of the defendants in the plaint schedule property. The defendants never knew about the partition of 1964 referred in the plaint between the plaintiff's father and her paternal uncles, the sale deed of 1965 referred in the plaint between the plaintiff's father and Venkatarama Rao and about the gift deed in 1975 referred in the plaint between Gopalakrishnaiah and the plaintiff. These documents were condocted with a view to cause wrongful loss to the defendants. The plaintiff's father and her paternal uncles have the knowledge of the concluded sale of the plaint schedule property between the said Kotamma and the defendants. It was further specifically pleaded that there was no occasion for the defendants to have knowledge of the partition, the sale deed of 1965 and the gift deed of 1975 as neither the plaintiff nor her father or her paternal uncles or her alleged agents ever at any time informed about the said documents to the defendants. The said documents were concocted behind the back of the defendants and as such the documents referred in para 3 of the plaint do not bind the defendants. The said documents were concocted behind the back of the defendants and as such the documents referred in para 3 of the plaint do not bind the defendants. It was also further pleaded that the defendants had been in uninterrupted and peaceful possession of the plaint schedule property since 1958. There was no dispute of any kind between the plaintiff or her father with the defendants regarding the plaint schedule property. The plaintiff nor her father or her agents ever demanded the defendants at any time to vacate the plaint schedule premises and it is false to allege that the defendants are only licencees. For the first time, the plaintiff got a legal notice dated 29-1-1983 issued to the defendants demanding them to vacate the plaint schedule premises. It was further pleaded that it is not true that the plaintiff had been paying the Municipal tax. The plaintiff got the gift deed of 1975 registered in her name and got her name entered in the Municipal records in the place of K.Kotamma in the year 1979 behind the back of the defendants with a view to make some claim over the plaint schedule property. The defendants never knew about the plaintiff's efforts to get her name entered in the Municipal records. The defendants also were not aware of the plaintiff's application for the alleged approval of a building plan. It was also further pleaded that the very fact that the name of K. Kotamma as the owner of the plaint schedule property stands in the Municipal records till 1979 in spite of the alleged partition in 1964 and the alleged sale deed in 1965 and the alleged gift deed in the year 1975, clinchingly establishes that the plaintiff with the assistance of her father created documents in the Municipal records so as to make it appear that they have some sort of control over the plaint schedule property. As such the documents created by the plaintiff in the Municipal records do not bind these defendants. The defendants further pleaded that they had been in uninterrupted possession and enjoyment of the plaint schedule property and neither the plaintiff nor her father or her agents did not know what type of construction the plaint schedule property was at any time between 1958 till date. The defendants further pleaded that they had been in uninterrupted possession and enjoyment of the plaint schedule property and neither the plaintiff nor her father or her agents did not know what type of construction the plaint schedule property was at any time between 1958 till date. It was also further pleaded that the defendants had been paying all the taxes due for revenue and because of the fact that nobody demanded them the Municipal tax, they did not pay. Even the plaintiff also paid the Municipal tax for 1979 to create a document for claiming the ownership of the property. The defendants further pleaded that an evil design was made by the plaintiff through her agents to grab the property lawfully vested in the defendants. The plaintiff has no manner of right over the plaint schedule property and the defendants are the rightful owners in possession and enjoyment of the plaint schedule property over a continuous period of 25 years and their title was also perfected by the doctrine of adverse possession and the plaintiff cannot claim the alleged rights over the property by the said doctrine. It was also further pleaded that the plaintiff out of avarice and after seeing the value of the property started the proceedings with a view to cause wrongful loss to the defendants by gaining wrongful profit to herself. For the first time the plaintiff got a legal notice dated 29-1-1983 issued through her advocate to the defendants with vague allegations of ownership over the property. It was further pleaded that the plaintiff alleged in the notice that she permitted the defendants to live in the plaint schedule property as licencees, but in fact, she knew that the defendants had been residing therein since 25 years. After serving the notice, taking advantage of the fact that the defendants did not possess any title deed, demanded the defendants to pay a lumpsum amount of Rs.1,00,000/- through her agents when they approached, but the defendants pleading all the facts stated their inability to pay the huge amount in view of the conclusion of sale by them with late Kancherla Kotamma. But, the agents of the plaintiff did not care for the defendants and they forcibly took some photographs of the plaint schedule property. Under the said circumstances, the defendants got their reply dated 8-3-1983 issued to the plaintiff's advocate with all true facts. But, the agents of the plaintiff did not care for the defendants and they forcibly took some photographs of the plaint schedule property. Under the said circumstances, the defendants got their reply dated 8-3-1983 issued to the plaintiff's advocate with all true facts. After receiving the reply, the plaintiff got a rejoinder dated 11-4-1983 with all false allegations with a view to force the defendants to concede for their illegal demand. As the defendants could not accept the illegal demand of the plaintiff, the plaintiff got the suit dated 15-6-1983 filed. The defendants further pleaded that to the plaintiff's notice dated 29-1-1983, the reply of the defendants dated 8-3-1983 and the rejoinder dated 11-4-1983 may be read as part and parcel their written statement. It was further pleaded by the defendants that assuming for a moment that the gift deed of 1975 is true and valid, the plaintiff at least never cared to inform the defendants about the alleged gift deed and for the first time after concocting all the documents in Municipal records, she served the notice dated 29-1-1983 with ulterior motives. The very conduct of the plaintiff clearly establishes that she had filed the present suit only to harass the defendants to make unlawful gain. The suit of the plaintiff also is liable to be dismissed by the doctrine of laches on the part of the plaintiff. The cause of action stated in the plaint had been denied as not correct and it was further pleaded that the plaintiff has no cause of action to file the suit. Further, it is not correct to allege that the plaintiff's father permitted the defendants to live in the thatched house in the plaint schedule house in 1972. The defendants submit that they had been residing in the plaint schedule property since 1958 as stated by them and as such the cause of action is incorrect and the plaintiff has no cause of action for filing the suit by the doctrine of adverse possession. 5. Issues and Additional Issues settled by the trial Court: On the strength of the respective pleadings of the parties, the following Issues and additional Issues had been settled for trial: