THE HON’BLE SRI JUSTICE G.CHANDRAIAH APPEAL SUIT No. 1069 of 1994. JUDGEMENT: Heard the learned Counsel for the appellants. None appears for the respondents though notices were served, This appeal is filed by the plaintiffs aggrieved by the Judgement and Decree dt. 5.4.1994 in O.S.No. 21 of 1988 on the file of the Subordinate Judge, Penukonda. The parties will be referred to as they are arrayed in the suit. The plaintiffs filed suit O.S.No. 21 of 1988 for declaration of title and permanent injunction restraining the defendants and their men from interfering with their peaceful possession and enjoyment of the suit schedule property i.e. an extent of Ac. 0.64 cents of dry land covered by S.No. 190/2 of Settipalli village. The averments in the plaint are that one Ramannagari Narisi Reddy was the owner of Ac. 2.64 cents in S.No. 190 and that he sold the said land to 1) Lakshme Naik, 2) Nanu Naik, 3)Kasine Naik 4)Lakshme Naik S/o:Ramji Naik and 5) Somla Naik by a registered sale deed dt. 4.11.1927 for a valuable consideration and delivered possession to them and they are in possession of the same right from 4.11.1927. Lakshme Naik died about 20 years back leaving his interest on the suit schedule property on the 1st plaintiff and his two brothers. Nanu Naik died about 30 years ago leaving the 2nd plaintiff and Lakshme Naik. Kasine Naik died about 40 years ago leaving behind his sons Jeera Naik, Sasram Naik and Peekla Naik. Peekla Naik took a separate plot from out of Ac. 2.64 cents and therefore he has no right over the suit land. Vasram Naik died about 15 years ago leaving behind him his sons i.e. the 3rd plaintiff and his brothers and that Lakshme Naik S/o: Ramji Naik died long ago leaving behind him his son i.e. the 4th plaintiff and his brother Somla Naik who died issue less and that after the death of all the purchasers under sale deed dt. 4.11.1927, their respective heirs as stated above succeeded to Ac. 2.64 cents and are in possession and enjoyment of the same. Thereafter, Sugalis of Settipalli including the defendants constructed houses in some portions of land of Ac. 2.64 cents with the permission of the plaintiffs and the plaintiffs are not making any claim over the houses constructed. The 4th defendant purchased 1/16th share out of Ac. 2.64 cents under a registered sale deed dt. 10.7.1964 from Vasram Naik and that the plaintiffs also constructed houses in some portions of Ac. 2.64 cents and that later the Government acquired about 0.76 cents out of Ac. 2.64 cents for providing house sites to Sugalis and that excluding the land acquired by the Government and the portions in which the houses constructed, an extent of Ac. 0.64 cents remained. The assertion of the plaintiffs is that themselves and their predecessors paid land revenue to the suit land and the same is being used for agricultural purposes for the last 20 years and the defendants 1 to 3 have no right over the suit land and they are nothing to do with the sale deed dt. 4.11.1927 and that the defendants are trying to dispossess them with a view to grab the suit land. Hence the suit. The 1st defendant filed written statement which was adopted by the defendants 2 and 3. The 4th defendant remained ex parte. The averments in the written statement of defendant No.1 are that Lakshme Naik, the father of the 1st plaintiff, Nanu Naik, the father of 2nd plaintiff, Kasine Naik, Lakshme Naik the father of plaintiff No.4 and Somla Naik, Pomme Naik the father of 1st defendant, Loke Naik the father of 2nd defendant, Somla Naik the father of 3rd defendant, Dadu Naik, Jamala Naik, Dene Thippa Naik, Baseke Thippanna, Subba Naik, Pakkera Naik, Hare Naik and Sivappa purchased an extent of Ac. 2.64 cents in the suit survey number from Ramannagari Narasireddy for a valuable consideration in the year 1927 and that the above said 16 persons decided to get the land registered in the name of Lakshme Naik, Nanu Naik, Kasine Naik, Lakshme Naik and Somla Naik and accordingly a registered sale deed was executed in the name of above five persons on 4.11.1927 by the vendor and that all the above said 16 persons have been in possession and enjoyment of the suit land. Thereafter, the said 16 persons including the fathers of the plaintiffs constructed houses in some portions of the suit survey number about 50 years back and they also constructed a temple called Maremma Kuladevatha on the eastern side of the suit survey number. Except Baske Naik and Hare Naik, the remaining 14 persons died long back and their successors have been enjoying the suit survey number and that there are 14 tomb stones of the deceased persons on eastern side of the suit survey number and that the above said 16 persons and their successors paid land revenue for the suit survey number. It was further stated that the Government of A.P. has acquired about 0.76 cents of land out of the suit survey number for providing house sites to Sugalis and it was renumbered as 190/1 and that the remaining land was numbered as 190/2 and that pursuant to acquisition, the heirs of 16 persons including the plaintiffs 1 to 4 have received compensation from the Tahsildar, Penukonda in R.C.No. 3421/82 dt. 4.4.1985. Further, the said Baske Naik, Hare Naik and the heirs of 14 members including the plaintiffs and the defendants have obtained loans from the A.P. Khadi and Village Industries Board, Hyderabad in the year 1980. Peere Naik, the brother of Deni Thippe Naik sold his 1/96th share in survey number 190 to Palasamudram Nage Naik under a registered sale deed dt. 4.10.1976 and that the said Dene Thippe Naik sold his share to R.Narayana Reddy s/o: Nagi Reddy of Settipalli. Pakere Naik has three brothers namely Ramala Naik, Nene Naik and Chaje Naik. Dene Naik sold his 1/96th share in S.No. 190 to Rupla Naik S/o: Mure Naik under a registered sale deed dt. 16.1.1967. Thippe Naik has four sons namely Thippe Naik, Thavara Naik, Denujee Naik and Kana Naik. Tavara Naik sold his 1/64th share to Ghande Naik, the brother of the 1st defendant under a reregistered sale deed dt. 4.5.1962 and that the 1st defendant and his four brothers got 1/16th share plus 1/64 and 5/64th share in the suit land and the family of the defendants 2 and 3 have got 1/64th share each and thus all the defendants are co-owners of the suit land and therefore the plaintiffs have no exclusive or absolute rights over the suit land and they are not entitled for injunction since they are also co- owners along with the plaintiffs. The averment that Somla Naik died issueless and his interest devolved upon the branch of the 3rd plaintiff was denied. The said Somla Naik has a son by name Bheemla Naik who has got wife by name Gurigi Bai and one daughter by name Nagibai and that the said Somla Naik died long ago leaving behind his share to his son Bheemla Naik and that the said Bheemla Naik also died leaving his share to his wife and daughter and they are the legitimate persons to succeed to the properties of Somla Naik. The above said 16 persons including the plaintiffs and the defendants have constructed houses on some portions of Ac. 2.64 cents as joint owners but not with the permission of the plaintiffs. It was further stated that the defendants do not know that the 4th defendant purchased 1/6th share in Ac. 2.64 cents under a registered sale deed dt. 10.7.1964 from Vasram Naik and Peekla Naik. It was further stated that the suit was undervalued and the necessary court fee under Section 26-A of the APCF and SV Act is not paid and that the suit is bad for non-joinder of necessary parties and prayed to dismiss the suit. On the above pleadings, the trial court framed the following issues. i) Whether the plaintiffs have got exclusive right and title to the suit property. ii) Whether the defendants are co-owners of the suit property. iii) Whether the plaintiffs have been in exclusive possession and enjoyment of the suit property. iv) Whether the plaintiffs are entitled for permanent injunction. v) To what relief. The trial court also framed an additional issue as under: Additional Issue: Whether the suit is bad for non-joinder of necessary and proper parties. To prove their case, the plaintiffs examined PWs 1 to 4 and got marked Exs:A.1 to A.6. To substantiate their contention, the defendants examined DWs 1 to 3 and got marked Exs: B.1 to 14. The trial court, after appreciating both oral and documentary evidence adduced by both the parties, dismissed the suit by the Judgement and decree dt. 5.4.1994. Aggrieved by the same, the plaintiffs filed the present appeal. It is contended by the learned Counsel for the appellants that the trial court erred in relying on Ex:B.1 for coming to the conclusion that the property was purchased by the 16 persons under Ex.A.1 and they are all enjoying the property. He further contended that merely because DW.2 has sold a portion of the property by means of an unregistered sale deed to a third party, the trial court ought not to have concluded that he has got title over the property. The learned Counsel for the appellants further contended that merely because the defendants have received compensation under the Land Acquisition Act, the same does not conclusively establish that they have got right over the property and the burden lies on them to establish that they have right over the property. He further contended that the trial court failed to consider Exs:A.1 to A.5 which conclusively prove the possession of the plaintiffs over the suit land. He further contended that the trial court failed to consider the fact that defendants are barred from taking the plea that the property was purchased under Ex:A.1 by 16 persons in view of the provisions of the Benami Transactions (Prohibition) Act 1988 and that the finding of the court below that the suit is bad for non-joinder of necessary parties is not legal and correct and therefore it is prayed that the appeal may be allowed. Now the point that arises for consideration is whether the Judgement and decree of the trial court can be sustained or the same is liable to be set aside. The main contention of the plaintiffs is that Lakshme Naik, the father of 1st plaintiff, Nanu Naik, the father of 2nd plaintiff, Kasine Naik, the grand father of 3rd plaintiff, Lakshme Naik, the father of 4th plaintiff and Somla Naik S/o: Bheemla Naiak have purchased Ac. 2.64 cents on northern side of S.No. 190 from Ramannagari Narasi Reddy under a registered sale deed dt. 4.11.1927 and eversince the purchase, the vendees and after their death, the plaintiffs and other respective heirs have been in possession and enjoyment of the land and that the Government of A.P. acquired about 0.76 cents of land for house sites and the remaining extent of Ac. 0.64 cents i.e. the suit land is in possession and enjoyment of the plaintiffs and they are the exclusive owners of the same. On the other hand, the contention of the defendants is that Lakshme Naik, the father of 1st plaintiff, Nanu Naik, the father of 2nd plaintiff, Kasine Naik, Lakshme Naik, the father of 4th plaintiff and Somla Naik, Pomme Naik, the father of 1st defendant, Loke Naik, the father of 2nd defendant, Somla Naik, the father of 3rd defendant, Dadu Naik, Jamala Naik, Dene Thippa Naik, Baseke Thippanna, Subba Naik, Pakkera Naik, Hare Naik and Sivappa jointly purchased Ac. 2.64 cents and got it registered in the name of Kakshme Naik, Kasine Naik, Lakshme Naik and Somla Naik out of an understanding and that since the date of purchase, all the 16 persons have been in possession of the said land. In support of their contention, the defendants 1 and 3 are examined as DWs 1 and 3 and examined DW.2 and filed Exs:B.1 to B.14. DWs 1 and 3 have stated in their evidence that 16 persons mentioned above purchased the suit survey number and got it registered in the name of predecessors of plaintiffs 1 to 4 and one Somla Naik and they also stated that the Government of A.P. acquired 0.75 cents out of Ac. 2.60 cents for the purpose of providing house sites to weaker sections. They further stated that 16 families have obtained loan of Rs. 1000/- each from the Khadi Board, Hyderabad for installing limekilns in the suit survey number. Ex:B.1 is an unregistered sale deed executed by Baske Naik, who is one of 16 persons. DW.2 purchased 1/64th share of Baske Naik under Ex:B.1 nine years prior to institution of the suit. Exs:B.2 and B.3 are the tax receipts showing that the land revenue was paid by Dw.2. If 5 persons mentioned in Ex:A.1 alone have purchased the property, they would have objected the sale made by Baske Naik in favour of Dw.2. This is one of the circumstances which supports the contention of the defendants that they are co-owners of the suit land along with the plaintiffs. It is an admitted fact that the Government of Andhra Pradesh acquired 0.76 cents of land out of Ac. 2.64 for house sites to weaker sections. Dws 1 and 3 have stated in their evidence that the Government paid compensation for the acquired land and that the plaintiffs 1 to 4, themselves and other sugali families of 16 persons have received compensation and in support of their evidence, they filed Exs: B.4 to B.11 which is the file relating to the acquisition of Ac. 0.76 cents and ExB.7 the proceedings of the Land Acquisition Officer clearly shows that compensation was apportioned among 16 persons as shown in Exs: B.4, B.5, which supports the contention of the defendants. If really the 5 vendees have purchased the land under Ex:A.1 and they alone are in possession and enjoyment of the property, the compensation would not have been paid to 16 persons. Therefore, the evidence adduced by the defendants coupled with Exs: B.4 to B.11 clearly goes to show that the defendants are also co- owners of the property in question along with the plaintiffs. Dws 1 and 3 have stated in their evidence that all the 16 families have obtained loans from the Khadi Board and established limekilns in the suit land and in support of their evidence, they filed Ex:B.13 which is a letter addressed to Somla Naik who is the father of Dw.3 by the Accounts Officer, A.P. Khadi and V.G. Board whereby the father of Dw.3 was sanctioned loan and an amount of Rs. 1,000/- was paid to him. Further, the defendants have pleaded in their written statement that the above 16 persons constructed the temple of Maremma Kuladevatha on the eastern side of the plaint schedule land and that there are 14 tomb stones of their descendants. Dw.1 stated in his evidence that within the suit land Maremma temple, limekilns and manure pits are situated and that all the houses of sugali families have got access to the suit land. The evidence of Dw.1 is unchallenged as he was not cross-examined. The evidence of Dws 1 and 3 coupled with ExB.13 clinches the contention of the defendants that they are also the co-owners along with the plaintiffs. Further, the documentary evidence filed by the plaintiffs also supports the contention of the defendants. The plaintiffs filed Ex:A.4 which is a certified copy of 10(1) account of Settipalli village pertaining to S.No. 190 in which beasides Lakshme Naik, Nanu Naik, Lakshma Naik and some others Jeera Naik, Hare Naik, Lakshme Naik S/o: Ramji Naik, Beemla Naik and C.Narayana Reddy were shown as pattadars of S.No. 190 along with 5 vendees mentioned in Ex:A.1. If really the 5 vendees are the actual purchasers of the suit survey number, the above mentioned names would not have been shown as Pattadars along with the plaintiffs. Further Ex:A.6 is the registered sale deed dt. 10.7.1964 executed by Vasram Naik, Pikle Naik who are the sons of Kasine Naik and Range Naik in favour of the 5th plaintiff. Under Ex:A.6, Vasram Naik and Pikle naik sold 1/16th joint share in Ac. 2.63 cents in S.No. 190. According to the plaintiffs, Kasine Naik has got 1/5th share in Ac. 2.63 cents but as seen from Ex:A.6, the heirs of Kasine Naik was owning only 1/16thshare and not 1/5th share. If really Kasine Niak had 1/5th share, his heirs would have sold the joint 1/5th share in the suit survey number and this circumstance also strengthens the contention of the defendants that 16 persons have jointly purchased the property under Ex:A.1 and they have been jointly enjoying the same. Except oral evidence of Pws 1, 2 and 4 there is no other evidence adduced by the plaintiffs to prove that 5 vendees and their legal heirs alone are in exclusive possession and enjoyment of the property covered by Ex:A.1. The trial court rightly appreciated the evidence on record with regard the issues 1 to 3 and rightly held that the plaintiffs have no exclusive right over the suit land and that the defendants are also co- owners of the suit along with the plaintiffs. With regard to issue No.4 i.e. whether the plaintiffs are entitled for permanent injunction, the documentary evidence adduced by the plaintiffs did not show that they are in exclusive possession and enjoyment of the suit property. Ex:A.5 the certified copy of Adangal does not show that the plaintiffs are in possession and enjoyment of the suit property. No tax receipts are filed to show that the vendees under Ex:A.1 have paid land revenue at any point of time. Absolutely there is no cogent and convincing evidence on record to prove that five vendees during their lifetime and after their death, their heirs have been in exclusive possession and enjoyment of the property under Ex:A.1. Therefore, the plaintiffs are not entitled for permanent injunction. The trial court rightly appreciated the evidence with regard to issue No.4 and rightly rejected permanent injunction in favour of the plaintiffs. With regard to additional issue i.e. whether the suit is bad for non-joinder of necessary parties, it is an admitted fact that Jeera Naik, Vasram Naik and Peekla Naik are the sons of Kasine Naik who is one of the five vendees of Ex:A.1. It is also an admitted fact that Jeera Naik died. According to the plaintiffs, Jeera Naik died issueless and his property devolved on the branch of 3rd plaintiff. The contention of the defendants is that Jeera Naik has got children. The plaintiffs did not adduce any evidence to prove that Jeera Naik died issueless and his wife is also no more. Further, it is pleaded in the plaint that Peekla Naik took separate plot for him in Ac. 2.64 cents and as such he has no right in the rest of the land. Except the averment in the plaint and the interested testimony of Pws 1 and 2 there is no other evidence to prove that the said Peekla Naik took separate share in the land and he is in possession of his share. As seen from Ex: A.6, registered sale deed, Vasram Naik, the father of 3rd plaintiff, Peekla Naik and Range Naik, the son of Vasram Naik sold away their joint 1/16th share in Ac. 2.63 in S.No. 190 and if really Peekla Naik took away his share, there is no reason as to why he executed Ex:A.6 along with his brothers to sell their joint interest in the property. Therefore, it is clear that Peekla Naik is also one of the co-owners along with the plaintiffs and defendants and since he is not added as a party to the suit, the suit is bad for non-joinder of necessary party. Further, the contention of the defendants is that Somla Naik had a son by name Bheemla Naik who died about 15 years back leaving behind him his wife Gujari Bai and daughter Nagi Bai and that they are living at Applavandlapalli village. Though Pw.1 stated that Somla Naik died issueless, the said fact was not substantiated by any evidence on behalf of the plaintiffs. Therefore, the wife and daughter of Bheemla Naik are also necessary parties to the suit and since they are not added as parties, the suit is bad for non- joinder of necessary parties. The trial court rightly appreciated the evidence on record with regard additional issue and rightly held that the suit is bad for non-joinder of necessary parties. On a consideration of the entire evidence marshalled by both the parties as discussed above, I hold that there are no merits in the appeal and accordingly dismiss the same confirming the Judgement and decree dt. 5.4.1994 of the learned Subordinate Judge, Penukonda in O.S.No. 21 of 1988. There shall be no order as to costs. _______________________ G.CHANDRAIAH,J 21.10.2010. KRB. THE HON’BLE SRI JUSTICE G.CHANDRAIAH APPEAL SUIT No. 1069 of 1994. JUDGEMENT: Dt. 21.10.2010.