VIDYA SAGAR COLE Vs. J.BALAJI SINGH

JUDGEMENT

(1.) This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(u) of the C.P.C. challenging the judgment and decree dt. 17-02-2012 in A.S. No. 42 of 2010 of the Family Court-cum-VI Additional District Judge, Kadapa allowing the appeal and remitting the matter back to the Court of Senior Civil Judge, Kadapa. The appellants are defendant Nos. 1 to 7 in the suit O.S. No. 65 of 2005 on the file of Senior Civil Judge, Kadapa. The Ist respondent herein/plaintiff filed the said suit for declaration of his title to the plaint schedule property and for a consequential permanent injunction restraining the defendants from interfering with his alleged possession and enjoyment of the plaint schedule property. The plaint schedule property is a vacant site of extent Ac. 0.05 cts in D. No. 238 and Ac. 0.10 cts in D. No. 239/1B in 3rd ward in Kadapa Municipality.

(2.) In the plaint, the plaintiff contended that the plaint schedule property belonged to one R. Seetha Bai, wife of late Ram Singh, who got it under a Will Ex.A-1 dt. 09-12-1984 executed by his brother Sundar Singh; that she and Ram Singh had no issues and they adopted the plaintiff as their son; that she executed a registered Will Ex.A-2 dt. 21-03-1986 in his favor and thus, he became the owner of the property after her death. He contended that the defendants, who are neighbors of the plaintiff on the northern side of the plaint schedule property, are trying to encroach into the plaint schedule property with the help of unsocial elements; that he protested and requested them to take measurements of the property but they failed to accept his request; that the 8th defendant Municipal Corporation/2nd respondent herein erected a board stating that the plaint schedule property belongs to it; that he got issued a notice to it to remove the board; though the 8th defendant had no right, title or interest in the property, yet it constructed a road in part of the plaint schedule property on the northern side and also on the southern side; and therefore, he had to file the suit for the above reliefs.

(3.) The 2nd defendant filed a written statement denying the plaint averments. He denied that the plaintiff is the adopted son of Seetha Bai and Ram Singh. He contended that his father by name David Alfred Cole purchased the property of extent Ac. 0-62 cents in Sy. No. 238, 239/1 of Nagarajupalli village from one Mesa David and Robert Felic Cook; that the vendors had no surplus land in the said Sy. Nos. to sell Ac. 0-10 cents to Sundar Singh as alleged by the plaintiff; David Alfred Cole was in possession of the property till his death on 07-08-1962 and on his death, the property devolved upon the defendant Nos. 1 to 7, his legal heirs; the entire property was being assessed to tax in the name of David Alfred Cole since 1941 and the plaintiff and his predecessors in title neither paid any taxes nor have filed any record to show that the property in dispute stands in their name; Sundar Singh never objected to the enjoyment of the property by late David Alfred Cole; that the present suit is filed after lapse of 60 years with manipulated and concocted facts; and that there is no question of the defendants trying to encroach upon the plaint schedule property as they have always been in possession and enjoyment of the same, being the legal heirs of David Alfred Cole. They therefore, prayed that the suit be dismissed.