Allowed

Billa Vijaya Nirmala v. Bathula Venkateswarlu

Andhra Pradesh HC20 Dec 2023SA/293/2015

Case brief

AI extract

What is this about?

This Court allowed a second appeal against a first appellate court judgment that dismissed a suit for permanent injunction. The High Court set aside the lower court's decision, holding that reliance on a vacated status quo order and an improper Commissioner's report was erroneous.

What did the court decide?

The second appeal was allowed, the judgment dated 07-04-2015 of the First Appellate Court was set aside, and the decree dated 29-07-2013 in favor of the plaintiffs was restored.

Billa Vijaya Nirmala Vs Bathula Venkateswarlu — Property and Title | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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WEDNESDAY, THE TWENTIETH DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR

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SECOND APPEAL NO: 293 OF 2015

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Appeal under Section 100 aggrieved by the Judgment^{dated07-04-2015} passed in A.S.No.124 of 2013 on the file of the VII Additional District Judge, Ongole, reversing the Decree passed in O.S.No.849 of 2005, dt. 29-07-2013 on the file of the Principal Junior Civil Judge, Ongole.

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BETWEEN:-

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Billa Vijaya Nirmala, W/o. Chennaiah, aged 35 years, R/o. Plot NO. 38-A and 37-A Dharavarithota, Annavarapdu, Ongole, Prakasam^District.

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Medikonda Venkata Subbamma, aged 55 years, W/o. Pitchaiah, R/o. KarumanchiVillage, Tangutur Mandal, Prakasam District.

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...APPELLANTS/RESPONDENTS/PLAINTIFFS AND

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Bathula Venkateswarlu, S/o. Venkaiah, aged 60 years, Hindu, R/o. Dharavathotha,

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1 St Lane, NearVinayaka Temple, Ongole, Prakasam District.

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...RESPONDENTS/APPELLANT/DEFENDANT

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Counsel for the Appellant(s):SRI. Y V ANIL KUMAR

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Counsel for the Respondents: SRI.KOTI REDDY IDAMAKANTI

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The Court made the following JUDGMENT:

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THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

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SECOND APPEAL NO. 293 of 2015

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JUDGMENT:

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Plaintiffs before the trial court filed this appeal^under section 100 CPC assailing the judgment dated 07.04.2015 of learned Vll Additional District Judge, Ongole in A.S.No.l24 of 2013. The sole respondent herein is the sole defendant^before the trial court.

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O.S.No.849 of 2005 is a suit filed by two plaintiffs as against sole defendant seeking perpetual injunction to protect possession of two plots of house sites described in the plaint schedule. After due contest, by a judgment dated 29.07.2013, the learned Principal Junior Civil Judge, Ongole decreed the suit in favour of the plaintiffs.

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Aggrieved by it, the sole defendant preferred A.S.No.l24^of 2013. After due hearing, by a judgment dated 07.04.2015,^the learned VII Additional District Judge, Ongole allowed the appeal and set aside the trial Court’s judgment and as a consequence dismissed the suit. The aggrieved plaintiffs are before^thiscourt in this second appeal.

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Dr. VRKS, J S.A.Nos.293 0/2015

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On 01.05.2015, a learned Judge of this court admitted the second appeal on formulating the following substantial questions of law:

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Whether the learned first appellate court failed to appreciate the fact that the status quo order dated 27.09.2013 granted by this court in W.P.No.8697 of²⁰¹² was already vacated and reached to erroneous conclusions assuming that the status quo order was still subsisting?

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Whether the learned first appellate court misread the evidence and illegally concluded its findings based on Advocate Commissioner’s report with reference to possession of disputed property and thereby its judgment suffers from perversity requiring interference?

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Learned counsel on both sides submitted arguments. Essentially the arguments of the learned counsel for appellants supports the view taken by the trial court. Whereas the arguments of the learned counsel for respondent support^the view taken by the first appellate court.

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Dr. VRKS, J S.A.Nos.293 of 2015

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POINT NOS.l and 2

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Property in dispute is described in the plaint schedule. Item No. 1 which is described as Plot - A refers to a plot of house site in an extent of 400 Sq.feet bearing plot No.38-A in Survey No.3 of Annavarappadu Village. Item No.2 which is described^as Plot - B is a house plot in an extent of 1,000 Sq.feet bearing plot N0.37-A in Survey No.3 of Annavarappadu Village. Both^these items of properties situate in Ongole District. Stating^thatD.K. Pattas were granted to the affect that Plot - A of plaint schedule was granted to plaintiff No.l and Plot - B of the plaint^schedule was granted to plaintiff No.2 as they were landless poor. The plaintiffs laid the suit alleging that since the time of grant of pattas on 18.04.2005, they have been in possession and enjoyment of these properties and the defendant without any manner of right and with a view to grab the properties continuously threatening to dispossess the plaintiffs and therefore seeking protection of their possession, they^filed the suit for permanent injunction. These two plots are contiguous to each other and a plan showing both the plots is also appended to the plaint.

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The sole defendant in the suit contested the suit wherein he denied the plaint mentioned allegations stating that they are

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Dr. VRKS, J S.A.Nos.293 of 2015

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incorrect. He denied the possession claimed by the plaintiff as false. At para No. 5 of the written statement, he categorically pleaded that the pattas alleged in the plaint were duly cancelled by the Revenue Authorities. At para No.7, he pleaded^thatthe defendant has no connection with these plaint schedule properties and unnecessarily the suit is filed against^himand there is no cause of action to sue him and in respect^ofthese properties one Sri Bathula Venkata Nageswararao filed O.S.No.889 of 2005 and he is in possession of these properties. For these reasons, he sought dismissal of the suit.

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On the above rival pleadings, the learned trial court settled the following issues for trial:

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Whether the plaintiffs are in peaceful possession and enjoyment of the suit schedule property as on the date^of filing of the suit?

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Whether the defendant is interfering with the plaint schedule property and whether such interference is warranted?

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Whether the plaintiffs have come to the court with unclean hands as contended by the defendant?

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Dr. VRKS, J S.A.Nos.293 of 2015

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Whether the plaintiffs are entitled for permanent

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injunction as prayed for?

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To what relief?

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To prove their respective contentions, for plaintiffs,^PWs.l to 6 deposed and got marked Exs.Al to A24 and Exs.Xl to XI1. The sole defendant testified as DW.l and did not examine any other witness and did not exhibit any documents.

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On considering the entire oral and documentary evidence on both sides and after giving due consideration to the arguments advanced on both sides, the learned trial court stated that Ex.Al - D.K. Patta stands in favour of plaintiff No.l and Ex.A2- D.K. patta stands in favour of plaintiff^No.2andthat Ex.A series documents do indicate payment of taxes by the plaintiffs and all that indicated possession of plaint^schedule properties by the plaintiffs. It stated that the contention of defendant that these pattas were cancelled by appropriate proceedings issued by the Revenue Authorities stood^notproved as the defendant failed to produce any such documents. It further stated that defendant himself pleaded and admittedⁱⁿ his evidence as DW. 1 that, he has no connection with the plaint schedule properties. While considering the oral evidence^and

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Dr. VRKS, J S.A.Nos.293 of 2015

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certain discrepancies that were seen in the evidence of witness as to the actual possession of these plots of lands, the learned trial court stated that in a suit for injunction, the possession need not necessarily be actual and physical and it could also be symbolic. Finally, it held all the issues in favour of the plaintiffs and decreed the suit filed by the plaintiffs and granted permanent injunction.

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The learned first appellate court acting upon the same evidence on record was impressed with the contentions raised by the defendant in the suit. At para No. 12, the learned first appellate court stated that there is a title dispute concerning plaint schedule properties. That the Advocate Commissioner’s report shows that defendant in the suit was found to be in possession of the plaint schedule properties. That the report of an Advocate Commissioner is a good piece of evidence especially when the plaintiffs in the suit did not file any objections. It further held that the genuineness of Ex.Al Patta was challenged before the Revenue Authorities. Though all of them went in favour of the plaintiffs in the suit, the writ petition filed by the defendant in the suit was pending before the Hon’ble High Court wherein the Hon’ble High Court granted Status Quo. When such order was subsisting it was incorrect on part of the trial court to

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Dr. VRKS, J S.A.Nos.293 of 2015

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grant the relief of permanent injunction. It also held that tax receipts, electricity payment receipts contained in Ex.A series documents filed by the plaintiffs came into existence subsequent to the filing of the suit and the trial^{courtoughtnot} to have relied upon them. For all these reasons, it^agreedwith the contentions of the defendant and accordingly it^allowedthe appeal and dismissed the suit.

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It is in the background of the above facts and circumstances, this appeal has come up for consideration:

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It is to be noticed that the appellants filed S.A.M.P.No.790 of 2015 under section 151 CPC seeking permission to file additional material papers namely:

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Order dated 27.09.2013 passed in WVMP.No.2082 and 2623 of 2013 in WPMP.No.10996 of 2012 in W.P.No.8697 of 2012.

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Notice issued by Tahsildar, Ongole in RC.No.B/1212/2015, dated 11.11.2013.

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Order dated 14.02.2014 passed in W.P.No.4061 of^2014.

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Proceedings of the District Collector, Ongole in Rc.B/1212/2005, dated 28.11.2023.

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Dr. VRKS, J S.A.Nos.293 of 2015

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The suit is for permanent injunction. The relief claimed^is protective in nature. In other words, one who is in settled possession of property is entitled to seek such a relief. Claiming possession over the property and alleging threat of dispossession in the hands of defendant, the suit was filed. Their claim is based on D.K. Pattas granted to them^under Exs.Al and A2. As per the pleadings and the evidence of plaintiff No.l/ PW.l and the other witnesses, they^obtained these pattas from the Government on the ground that they were landless poor. PW.6 was the Tahsildar, Ongole Town. In his evidence, based on office records, he stated to the^courtthat Exs.Al and A2 were issued by the Government to the plaintiffs. He also deposed that no patta was granted to the defendant concerning the properties covered by Exs.Al and A2. Thus, the claim of possession asserted by plaintiffs based on^Exs.Aland A2 was found to be correct by the learned trial court.^Defendant testified as DW.l. According to his pleadings and his evidence. he himself does not hold any patta over the plaint^schedule properties and he himself has not been in possession of plaint schedule properties. His case is that his son Sri Bathula Venkata Nageswara Rao who is living separately from^himisthe one who is in possession of plaint schedule properties.^Hedid not examine his own son whose possession he was canvassing

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Dr. VRKS, J S.A.Nos.293 of 2015

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before the courts below, In his cross-examination DW.l admitted that Revenue Authorities inspected the property^and found plaintiffs in possession of the plaint schedule^properties. He further said, that he has no connection with the plaint schedule properties. All this evidence made the trial court to record a categorical finding that the plaintiffs were able to establish their possession over the plaint schedule^properties.

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A reading of the judgment of the learned first appellate court does not indicate any effort on its part in appreciating^the above referred evidence. It stated that a writ petition^ispending before the Hon’ble High Court and a status quo order was passed and therefore the trial court ought not to have^granted the protective relief of injunction to the plaintiffs.^Thatapproach is questioned in the second appeal. To appreciate these contentions, one has to go through the evidence of^PW.6 - the Tahsildar. In his evidence he stated that Sri Bathula^Venkata Nageswara Rao who is the son of the defendant raised^adispute about granting Exs.Al and A2 pattas to the plaintiffs^onthe ground that plaintiffs did not take possession of the^properties and did not raise constructions as required by the^pattas. In of that there was cancellation of pattas ordered by pursuance the Tahsildar. He further said that as against that^{theplaintiffs}

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Dr. VRKS, J S.A. Nos. 293 of 2015

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preferred an appeal before Revenue Divisional Officer and the Revenue Divisional Officer set aside the order of the cancellation that was passed by the Tahsildar. As against that the son^ofthe defendant preferred an appeal before Joint Collector. By an order, the Joint Collector dismissed the appeal and^confirmed the order passed by the Revenue Divisional Officer. As against that the son of the defendant preferred an appeal before^Chief Commissioner of Land Administration. After due hearing^and consideration, the learned Chief Commissioner of Land Administration dismissed the appeal and affirmed the order of the Joint Collector. Thus, the order of the Revenue Divisional Officer who set aside the cancellation order passed by the Tahsildar and who restored the pattas to the plaintiffs was confirmed by all the superior authorities in the Revenue Department. It was then the son of the defendant filed a writ petition before the HonT)le High Court. DW. 1 / defendant^inhis evidence stated that the said writ petition is W.P.No.8697 of 2012. He further deposed that the High Court granted status quo. In other words, the High Court directed the parties to maintain the existing state of affairs. It is in that context if one reads the evidence of PW.6 - the Tahsildar, one would notice that as per the records and on ground, plaintiffs were in possession of the property. The question of eligibility of plaintiffs

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Dr. VRKS, J S.A.Nos.293 of 2015

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to secure pattas is under challenge in the writ petition. The which means to maintain the High Court granted status quo affairs as they existed. That status quo order cannot^besaidto militate against the order of injunction granted by^{thetrialcourt} in favour of the plaintiffs, since by the decree of^perpetual injunction, the trial court maintained the status quo as available by then. Moreover, it is not the case of^{defendantthat} there was any direction from the High Court preventing^thetrial court from trying the case or from disposing of the suit or staying the proceedings in A.S.No.124 of 2013. In such circumstances, the trial court was right in disposing^ofthesuit. Its judgment did not dispossess anyone. Its judgment^simply protected the possession asserted by the plaintiffs. Such possession of the plaintiffs was upheld by the Revenue Authorities. The order of the High Court was a mere^directionto maintain status quo which is in harmony with all the^factsand circumstance s referred above. The suit before the trial court is not one about title. In such circumstances, the view of the learned first appellate court that because the High Court granted status quo, it wanted to upset the judgment of the trial court is wholly incorrect and against facts and against^law.In the additional material papers that are filed by the^appellants, the first document filed is order dated 27.09.2013^ofthiscourt.

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Dr. VRKS, J S.A.Nos.293 of 2015

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It pertains to certain applications in W.P.No.8697^of2012.This order reads that in WPMP.No. 10996 of 2012, the High Court granted status quo. Thereafter, the plaintiffs herein moved WVMP.No.2623 of 2013 seeking to vacate the said interim^order. After due hearing this court vacated the order of status quo that was passed. Thus, by 27.09.2013, there was no order^ofstatus quo granted by this court. Learned VII Additional District Judge passed the impugned judgment in A.S.No. 124 of 2013 on 07.04.2015. Thus, two years after this court vacated^thestatus quo, the first appellate court without noticing this fact concluded the case and pronounced the judgment. The submission of the learned counsel for appellants is that despite bringing this to the notice of the first appellate court, it failed to consider the same. This aspect is urged in the grounds of appeal also. Respondent could not deny correctness of such submission. All these further make it clear showing^failureof the learned first appellate court in adverting to the necessaiy facts and circumstances before concluding the litigation and deciding the appeal on matters that are irrelevant for consideration. Therefore, the impugned judgment is perverse and cannot be sustained.

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Dr. VRKS, J S.A.Nos.293 of 2015

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The appendix of evidence of trial court’s judgment^does not indicate about Advocate Commissioner’s report.^Thelearned first appellate court stated that it verified the commissioner’s report and as per that the appellant before it (defendant^inthe suit) was found to be in possession of the plaint schedule property. According to the learned first appellate^{court,thatisa} good piece of evidence to decide the dispute. In that^viewofthe matter, it found possession with the defendant and^notwiththe plaintiffs and therefore it allowed the appeal and^dismissedthe suit. This is seriously contested as incorrect by the learned counsel for appellants. Learned counsel cited Mallu Venkatramana Reddy V. Gandluri Govinda Reddy^. This court held that Commissioner’s report cannot be considered^as substantive evidence and it can be used only for the limited purpose of appreciating the evidence which the parties have laid. Commissioner’s report in a suit cannot have any^bearingin deciding the title or possession but it is relevant^only to the limited extent of noting physical features of the land^atthetime of Commissioner’s visit and inspection. Learned counsel for appellants also cited Parepally Satyanarayana V. Vutukuri

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2013 see Online (AP) 13/ (2013) 4 ALD 23

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Dr. VRKS, J S.A.Nos.293 of 2015

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Meenedar Goud^. This court held that in a suit for injunction, the question as to who is in possession of the property is a matter to be decided by the court based on the evidence,^either oral or documentary, to be adduced by the parties. That function cannot be delegated to a Commissioner. A Commissioner cannot be appointed to find out who is in possession of the property. The purpose of appointing a commissioner is not to gather information regarding possession of the property in an injunction suit. 15. The above principles find their complete alienation in the approach of the learned first appellate court. The observations recorded by the first appellate court that Advocate Commissioner’s report indicated possession over the disputed property with defendant in the suit is erroneous on law and therefore it has to be set aside.

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Om considering the entire material on record, it is clear that the learned trial court appropriately appreciated the evidence on both sides and decreed the suit. However, the learned first appellate court very incorrectly approached the facts in dispute and unreasonably set aside the trial court’s

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^MANU/ AP/ 0361/ 2007

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Dr. VRKS, J S.A.Nos.293 of 2015

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judgment. Therefore, the impugned judgment of the learned^first appellate court cannot be sustained. All the points^areheldin favour of the appellants.

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In the result, this appeal is allowed. Consequently, judgment dated 07.04.2015 of learned Vll Additional District Judge, Ongole in A.S.No.l24 of 2013 is set aside. Thus, the judgment dated 29.07.2013 of learned Principal Junior Civil Judge, Ongole in O.S.No.849 of 2005 stands restored.

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As a sequel, miscellaneous applications pending, if any.

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shall stand closed.

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Sd/- V. DIWAKAR DEPUTY REGISTRAR

//TRUE COPY//

To,

SECTION OFFICER

The Vll Additional District Judge, Ongole. 2. The Principal Junior Civil Judge, Ongole. 3. One CC to Sri. Y.V. Anil Kumar, Advocate [OPUC] 4. One CC to Sri. Koti Reddy Idamakanti, Advocate [OPUC] 5. The Section Officer, VR Section, High Court of Andhra Pradesh

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THREE C.D Copies.

SSL AL

HIGH COURT

DATED:20/12/2023

JUDGMENT SA.N0.293 OF 2015

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SECOND APPEAL IS ALLOWED.

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SSL

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2c ,yOj/2D2W

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'p
2 2 MAY 20211 C- (i

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI WEDNESDAY, THE TWENTIETH DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE j PRESENT \

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THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR SECOND APPEAL NO: 293 OF 2015

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BETWEEN:-

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Billa Vijaya Nirmala, W/o. Chennaiah, aged 35 years, R/o. Plot NO. 38-A and 37-A Dharavarithota, Annavarapdu, Ongole, Prakasam^District.

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Medikonda Venkata Subbamma, aged 55 years, W/o. Pitchaiah, R/o. Karumanchi Village, Tangutur Mandal, Prakasam^District.

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...APPELLANTS/RESPONDENTS/PLAINTIFFS

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AND

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Bathula Venkateswarlu, S/o. Venkaiah, aged 60 years, Hindu, R/o. Dharavathotha, 1®* Lane, Near Vinayaka Temple, Ongole, Prakasam District.

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...RESPONDENTS/APPELLANT/DEFENDANT

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This appeal is coming on for hearing and upon perusing^{theMemorandumof} Appeal, the decrees of the Lower Courts and the material papers in the case, and upon hearing the arguments of SRI. Y V ANIL KUMAR, Advocate for the Appellant and SRI. KOTI REDDY IDAMAKANTI, Advocate for the Respondent.

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THIS COURT DOTH ORDER AND DECREE:-

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That the Second Appeal be and hereby is allowed.

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That the Judgment dated 07-04-2015 of VII Additional District Judge Ongole in AS.NO.124 of 2013 be and is hereby set aside.

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That the Judgment dated 29/07/2013 of Principal Junior Civil Judge, Ongole in O.S.No.849 of 2005 stands restored.

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Sd/- V. DIWAKAR

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DEPUTY REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

The VII Additional District Judge, Ongole. 2. The Principal Junior Civil Judge, Ongole. 3. THREE C.D Copies. SSL

HIGH COURT

DATED:20/12/2023

DECREE SA.N0.293 OF 2015

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SECOND APPEAL IS ALLOWED.

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SSL

Billa Vijaya Nirmala v. Bathula Venkateswarlu

Case brief

What is this about?

What did the court decide?

Billa Vijaya Nirmala v. Bathula Venkateswarlu

Case brief

What is this about?

What did the court decide?

What the court decided

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