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2024 DIGILAW 459 (AP)

Lonagala Pothu Naidu v. Govt. of Andhra Pradesh

2024-04-16

V.GOPALA KRISHNA RAO

body2024
JUDGMENT : V. Gopala Krishna Rao, J. 1. This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellants/plaintiffs challenging the Decree and Judgment, dated 27.08.2007, in O.S.No.204 of 2006 passed by the learned I Additional District Judge, Visakhapatnam [for short 'the trial Court']. The Respondents herein are the defendants in the said Suit. 2. The appellants/plaintiffs filed a Suit for declaration to declare that the plaintiffs are having title and possession over the suit schedule property and to grant relief of permanent prohibitory injunction restraining the defendants and their men from ever interfering with the possession and enjoyment of the plaintiffs in the plaint schedule property. 3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court. 4. The case of the plaintiffs is that the first plaintiff is the son of one Narasimhulu, who used to enjoy the plaint schedule property along with other brothers and co-parceners. In the family partition the plaint schedule property fell to the share of Narasimhulu, who died intestate in the year 1986 leaving behind his four sons namely Longala Pothu Naidu, first petitioner herein, Longala Appadu, Longala Yellaiah and Longala Pydiraju, who used to enjoy the plaint schedule property. In the oral partition, between the brothers, in the year 1994, the plaint schedule property fell to the share of first plaintiff. Plaintiffs 2 to 4 are the sons of first plaintiff. Plaintiffs stated that the plaint schedule property is their ancestral property and they are in possession and enjoyment of the same. ii) The plaintiffs further contend that the land in an extent of Ac.0.76 cents was purchased from one Longala Chinnamma and others by the second plaintiff under a registered sale deed dated 20.01.1996. The remaining extent of Ac.1.20 cents of the plaint schedule property fell to the share of first plaintiff in the oral partition. iii) It is stated that the land in survey No.134 is classified as Assessed Waste Dry. The plaintiffs were paying land revenue to the said land and their names were also incorporated in the revenue records, as such the classification of the said land as assessed waste dry is also illegal and arbitrary. iii) It is stated that the land in survey No.134 is classified as Assessed Waste Dry. The plaintiffs were paying land revenue to the said land and their names were also incorporated in the revenue records, as such the classification of the said land as assessed waste dry is also illegal and arbitrary. The government never laid objection for possession and enjoyment of the plaintiffs over the plaint schedule property since long time, hence, the plaintiffs are entitled for declaration of their right, title and possession over the plaint schedule property. 5. The defendants were remained set ex parte and did not choose to contest the suit before the court below. 6. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 was examined and Ex.A1 to Ex.A6 were marked. No oral or documentary evidence was adduced on behalf of the Defendants. 7. After completion of the trial and on hearing the argument of plaintiffs, the trial Court dismissed the suit vide its judgment, dated 27.08.2007, against which the present appeal is preferred by the appellants/plaintiffs in the Suit questioning the Decree and Judgment passed by the trial Court. 8. Heard Sri P.Veerraju, learned counsel for appellants and the learned Government Pleader for appeals on behalf of respondents. 9. The learned counsel for appellants would contend that even though the documentary evidence produced by the plaintiffs amply proves the right, title and possession of the plaintiffs over the plaint schedule property, the trial Court dismissed the suit. He would further contend that the learned trial Judge ignored Ex.A1 to Ex.A5 documents and dismissed the suit and the decree and judgment passed by the trial Court is not sustainable and the appeal may be allowed. 10. Per contra, the learned Government Pleader for appeals appearing for respondents would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly dismissed the suit and there is no need to interfere with the finding given by the learned trial Judge. 11. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following points would arise for determination: 1. 11. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following points would arise for determination: 1. Whether the appellants/ plaintiffs are entitled the relief of declaration of title in the plaint schedule property and whether they are entitled the relief of permanent injunction to restrain the defendants and their men from ever interfering with the possession and enjoyment of the plaintiffs in the plaint schedule property? 2. Whether the decree and judgment passed by the trial court needs any interference, if so, to what extent? 12. Point Nos.1 and 2: The case of the appellants/plaintiffs is that the first plaintiff is the son of one Narasimhulu, who used to enjoy the plaint schedule property along with his other brothers and in the family partition, that took place along ago, the part of the plaint schedule property having an extent of Ac.1.20 cents held to be the share of Narasimhulu, and he died intestate in the year 1986 leaving behind his four sons, namely, Pothu Naidu, Appadu, Yellaiah and Pydiraju, who used to enjoy the said property jointly. The appellants further pleaded that in the oral partition, that took place among themselves in the year 1994, the said land fell to the share of first appellant, as the said land is ancestral property of first appellant, all the family members being Hindu undivided joint family have been enjoying the same. 13. The plaintiffs further pleaded that the remaining part of the plaint schedule land having an extent of Ac.0.76 cents was purchased from its owners by name Longala Chinnamma and others in favour of second plaintiff under registered sale deed dated 20.01.1996 and the remaining extent of Ac.1.20 cents of plaint schedule property fell to the share of first plaintiff in the oral partition in the year 1994. 14. In order to prove the case of the plaintiffs, the first plaintiff is examined as PW1 and relied on Ex.A1 to Ex.A6. The defendants did not file any written statement and did not choose to cross examine the PW1 and the right of filing written statement by the defendants is forfeited by the trial Court. 15. The plaintiffs herein are claiming the relief of declaration of title over the plaint schedule property. The defendants did not file any written statement and did not choose to cross examine the PW1 and the right of filing written statement by the defendants is forfeited by the trial Court. 15. The plaintiffs herein are claiming the relief of declaration of title over the plaint schedule property. Therefore, the entire burden is on the plaintiffs to prove that they are having right and title in the plaint schedule property. It is not a simple suit for relief of permanent injunction. The legal position in this regard is no more res integra and the same has been well settled in a catena of judgments. In a suit for declaration of title, the burden is heavily lies on the plaintiffs to prove their right and title in the plaint schedule property by producing oral and documentary evidence, even though the defendants did not adduce any evidence and the defendants are remained set ex parte, the suit for declaration of title cannot be granted unless the plaintiffs prove their right and title in the plaint schedule property. The learned counsel for appellants would contend that the defendants did not contest in the suit proceedings before the trial Court, instead of decreeing the suit, the learned trial Judge dismissed the suit by ignoring the evidence of PW1. As stated supra, even though the defendants are not contesting in the suit proceedings, the burden is heavily lies on the plaintiffs to prove their right and title in the plaint schedule property because they approached the trial Court for claiming the relief of declaration of title in the plaint schedule property. 16. In order to prove their case, the plaintiffs relied on the evidence of PW1. PW1 is the first plaintiff. He reiterated the contents of plaint in his evidence affidavit as PW1. The copy of the settlement fair adangal is marked as Ex.A1 through PW1. The registered sale deed for an extent of Ac.0.76 cents in favour of the second plaintiff is marked as Ex.A2 and land revenue receipts in the name of first plaintiff is marked as Ex.A3 and Ex.A4, copy of legal notice is marked as Ex.A5 through PW1. Ex.A6 is the postal acknowledgments of defendants 1 and 2. 17. The plaintiffs relied on Ex.A1 to Ex.A6. Ex.A6 is the postal acknowledgments of defendants 1 and 2. 17. The plaintiffs relied on Ex.A1 to Ex.A6. The suit schedule property is situated in Survey No.134/1 and 2 and its extent is Ac.1.94 cents and Ac.0.02 cents situated at Kommadi village. The name of the pattadar in Ex.A1 is Longala Sanyasi Naidu, son of Gangu Naidu. The extent in Ex.A2 sale deed is Ac.0.76 cents. Ex.A2 is said to have been executed by Longala Chinnamma in the name of second plaintiff. Ex.A3 and Ex.A4 land revenue receipts stands in the name of Yellaiah, Ex.A3 and Ex.A4 are not relate to suit schedule property survey number. Ex.A5 is the copy of the legal notice, Ex.A6 is the postal acknowledgment. The defendants are disputing the title of the plaintiffs. The learned counsel for respondents would contend that the plaintiffs failed to prove their right and title over the plaint schedule property. The learned counsel for appellants would contend that before the trial Court, the defendants did not contest the suit proceedings and they were remained set ex parte, therefore, now the respondents cannot be permitted to contest in the appeal proceedings. As stated supra, the plaintiffs herein are claiming the relief of declaration of title, therefore, the burden is on the plaintiffs to prove their right and title in the plaint schedule property. 18. The evidence of PW1 goes to show that the plaintiffs are in possession of plaint schedule property. Moreover, the defendants did not choose to cross examine the PW1. As stated supra, the plaintiffs are claiming the right and title of plaint schedule property, the burden is on the plaintiffs to prove their right and title of the plaint schedule property, even though the defendants did not choose to cross examine PW1. In the plaint itself, the plaintiffs clearly mentioned that when the second plaintiff approached the Sub-Registrar Office, Madhurawada for encumbrance certificate for the first time he came to know that the land in survey No.134 is classified as Assessed Waste Dry. Therefore, the burden is on the plaintiffs to prove that the plaint schedule property is a private land but not assessed waste dry land and they are also supposed to prove that the plaint schedule property is not a government land. Therefore, the burden is on the plaintiffs to prove that the plaint schedule property is a private land but not assessed waste dry land and they are also supposed to prove that the plaint schedule property is not a government land. As stated supra, the extent of Ex.A2 is Ac.0.76 cents of land, the boundaries in Ex.A2 and plaint schedule property for Ac.1.96 cents are one and the same. Therefore, the said discrepancy has to be ruled out by the plaintiffs. For the reasons best known to the plaintiffs they did not make any venture to summon the revenue officials to prove that the plaint schedule property is a private land. 19. A reliance has been placed by the learned counsel for appellants in N.Padmamma and others vs. S.Ramakrishna Reddy and others 2008:INSC:720 : (2008) 15 SCC 517 , the facts and circumstances in the cited decision is relates to the tendency laws, whereas the case on hand relates to the relief of declaration of title in the plaint schedule property. 20. The learned counsel for appellants placed a decision in Sangram Singh vs. Election Tribunal Kotah and another 1955:INSC:15 : AIR 1955 SC 425 and also placed another decision in Pratap Singh vs. Shiv Ram 2020:INSC:219 : (2020) 11 SCC 242 , the facts in the two cited decisions relate to the tendency laws, the case on hand is not simple suit for permanent injunction. 21. The learned counsel for appellants also relied on another decision in Gujarat Maritime Board vs. G.C.Pandya 2015:INSC:322 : (2015) 12 SCC 403 , the facts in the cited decision relates to the service matter in a government service with regard to promotion of the post in a civil engineering department, hence, the facts and circumstances in the cited decision are different to the instant case. 22. The evidence on record proves that the plaintiffs are in a possession of the plaint schedule property, but the plaintiffs failed to prove their title in the plaint schedule property. It was admitted by both sides that this Court granted interim orders in W.P.M.P.No.20963 of 2015 in W.P.No.16121 of 2015 restraining the defendants herein from interfering with their possession and enjoyment over the suit schedule property, the same is in force till today. It was admitted by both sides that this Court granted interim orders in W.P.M.P.No.20963 of 2015 in W.P.No.16121 of 2015 restraining the defendants herein from interfering with their possession and enjoyment over the suit schedule property, the same is in force till today. The evidence on record proves that the plaintiffs are in a possession and enjoyment of the plaint schedule property but the plaintiffs failed to prove their right and title in the plaint schedule property. 23. The legal position in this regard is no more res integra and the same is well settled by the Apex Court in a case of Rame Gowda by L.Rs vs. M.Varadappa Naidu by L.Rs. In the said case, the Apex Court held as follows: "......so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if be can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession". The material on record reveals that the plaintiffs are in a possession and enjoyment of the plaint schedule property but the plaintiffs failed to prove their right and title in the plaint schedule property. Therefore, the plaintiffs are not at all entitled the relief of declaration of title, but the plaintiffs are entitled the relief of permanent injunction by restraining the respondents 1 and 2 and their men from ever interfering into the possession and enjoyment of the plaintiffs into the plaint schedule property until they were evicted under due process of law. Accordingly, the point Nos.1 and 2 are answered. 24. In the result, the appeal is partly allowed and the suit in O.S.No.204 of 2006 on the file of I Additional District Judge, Visakhapatnam is partly decreed by granting relief of permanent injunction restraining the defendants 1 and 2 and their men from ever interfering into the possession and enjoyment of the plaintiffs in the suit schedule property until the plaintiffs are evicted under due process of law. The rest of the judgment of trial Court holds good. In the facts and circumstances of the case, both parties shall bear their own costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.