July2007cv

HIGH COURT OF ANDHRA PRADESH: HYDERABAD

Written Examination for

Recruitment to the post of Junior Civil Judge (Limited Recruitment)

CIVIL LAW

29th July 2007.

Time: 3 hours                                                                                                                                                Max. Marks 100

9.00 a.m. to 12.00 noon

a)   Part A is compulsory. It carries 30 marks.

b)   Candidate should answer question No. 2 in Part B and any six other questions in Part B.

c)     Write your roll number only on the first page of the answer book.

d)   Do not write/put your name, roll number or any mark anywhere in the answer book/additional sheet.

e)   Any attempt by the candidate to disclose his/her identity in any manner in any other part of the answer sheet will disqualify him/her.

f)       No candidate shall be permitted to leave the examinational hall before 9.30 A.M.

PART-A

30 Marks

(1). The plaint, written statement, oral and documentary evidence in O.S.No. IK of 2007 on the file of the Junior Civil Judge, Vemulawada are furnished hereunder. Frame relevant issues and write your judgment after considering the pleadings and evidence keeping in view the provisions of Order XX of Code of Civil Procedure, 1908.

IN THE COURT OF THE JUNIOR CIVIL JUDGE, VEMULAWADA

O.S.NO. IK of 2007

China Pochaiah                                                                                                                                      ...Plaintiff

v

Pedda Pochaiah                                                                                                                                  ...Defendant

Suit for Permanent Injunction

Plaint filed under Section 26 read with order VII Rule 1 of Code of Civil Procedure, 1908

1.                                  The plaintiff is the younger brother of the defendant. The father of the plaintiff and defendant late Sattaiah, was owner of agricultural dry land admeasuring Acs. 10.00 in survey No. 44 situated at Vemulawada. After death of their father, plaintiff and defendant agreed to partition the property. In the presence of well wishers, Theta Mallaiah and Theta Pentaiah, the plaintiff and defendant divided the property on 14.01.2002. The partition was also reduced into writing. Under the said deed, the plaintiff was allotted an extent of Acs. 5.00 in survey No. 44/1, which is more particularly described in the Schedule below. The defendant was given equal extent in survey No. 44/2.

2.                                  The plaintiff submits that pursuant to partition deed, the plaintiff and defendant occupied the respective portions of land. He is paying the land revenue and his name is also entered in the revenue records as pattadar and possessor. Recently, the plaintiff engaged a Geologist for fixing water point with a view to dig a bore well for the purpose of cultivation. The Geologist fixed bore well point at

North Eastern corner of plaint schedule land which is nearer to South Eastern corner of the defendant's land. Having come to know this, the defendant openly proclaimed in the village that he would himself dig the borewell by driving out the plaintiff. With this aim, the defendant tried to trespass into North Eastern portion of the plaintiff's land. On 23.07.2007, the defendant came wth anti social elements and tried to encroach upon the plaintiffs land but, with the help of the neighbours, the plaintiff foiled his attempt. Defendant is a influential person in the village, whereas the plaintiff is an innocent man. Hence, the suit.

3.                                  Cause of action for the suit arose on 14.01.2002 when there was a partition of property between the plaintiff and defendant and on 23.07.2007, when the defendant tried to interfere with the possession of the plaintiff.

4.                                  The notional value of the suit for the purpose of jurisdiction and Court fee is Rs. 5,000/- on which Court fee of Rs. 475/- is paid.

5.                                  The plaintiff therefore prays that the Honourable Court may be pleased to pass decree of perpetual injunction restraining the defendant and his men from in any manner interfering with the peaceful possession and enjoyment of the suit schedule property, award costs and pass such other orders as this Honourable Court may be deem fit and proper in the facts, circumstances and in the interest of justice.

Suit Schiedule

An extent of Acs. 5.00 of agricultural land in survey No. 44/1 situated at

Vemulawada Village, Karimnagar District, bounded by: North :      Land of defendant South :      Cart track East   :      Vemulawada - Siddipet Road West :       Land of Theta Mallaiah

LIST OF DOCUMENTS

1.                                   14.01.2002       Partition deed between the plaintiff and defendant

2.                                   30.06.2007       Certificate issued by Geologist Dr. Mastan Rao

3.                                   22.05.2007       Land revenue receipt issued by Panchayat Secretary

4.                                   24.05.2007       Certificate issued by Panchayat Secretary

Written Statement filed by the defendant

1.                                   The suit for injunction against a co-owner is not maintainable and is liable to be dismissed with costs. Except the allegations, which are specifically admitted or denied, all other allegations made in the plaint are denied and the plaintiff is put to strict proof of the same.

2.                                   The allegations made in paragraphs and 1 and 2 of the plaint are not truly and correctly stated. Hence, they are denied. It is true that the plaintiff and defendant are sons of late Sattaiah. He was owner of land admeasuring Acs. 10.00 in survey No. 44. The allegation, however, that there was a partition between plaintiff and defendant and that they are in possession of Acs. 5.00 each of survey Nos. 44/1 and 44/2 respectively is not correct. It is false and denied. The allegation that on 14.01.2002 in the presence of well wishers there was a parition between plaintiff and defendant and the same was reduced to writing is false and denied.

3.                                   The allegation that pursuant to such partition that the plaintiff is in possession and paying land revenue is false. The allegation that with a view to dig a borewell, the plaintiff engaged Geologist, that the Geologist fixed borewell point on the North Eastern corner of plaintiff's land, and that the defendant proclaimed that he will dig a borewell and tried to trespass into the plaintiff's land are all false and invented for the purpose of the suit. They are denied and the plaintiff is put to strict proof of the same.

4.                                 While denying various allegations made in the plaint as above, the defendant submits as follows. The property in survey No. 44 in an extent of Acs. 10.00 is a joint family property. The plaintiff and defendant are jointly in possession of the land and there is no partition between them. It is the defendant who got the borewell point fixed by engaging a water diviner, when father was aive. The family had no surplus funds and borewell could not be dug. Now the plaintiff having secured some funds, is trying to claim portion of land where water is available all for himself. It is the plaintiff who declared that he will exclude the defendant from ownership.

5.                                 The plaintiff has no cause of action and suit filed against defendant is mala fide. Court fees paid is not proper. The defendant therefore prays that suit be dismissed with costs.

-X—XXX—x-

Depositions

P.W.I: (Plaintiff) Chief Examination: I am the plaintiff in the suit. The defendant is my elder brother. After death of our father, Sattaiah, there was a partition between me and defendant on 14.01.2002. The partition agreement is Ex.Al. The land which fell to the share of defendant is situated on the Northern side of my land. I wanted to dig a borewell in North Eastern corner of my land. I engaged Dr. Mastan Rao, Geologist, for fixing borewell point. He suggested to dig the borewell at North Eastern corner. So as to obtain loan from the Bank for digging borewell, I obtained a certificate from the Geologist, the same is marked as Ex.A2. I am in possession of the land. I am paying land revenue to same. The certificate issued by Panchayat Secretary on 22.05.2007 is marked as Ex.A3 and certificate issued by Panchayat Secretary on 24.05.2007 is marked as Ex.A4. As per Ex.A3, I paid land revenue to the Panchayat and as per Ex.A.4 I am in possession of the land. On 23.07.2007, the defendant came along with anti-social elements and tried to dispossess me with a view to dig a borewell in the North Eastern corner of my land.

Cross Examination: I studied upto Intermediate, but I did not pass. Defendant is an illiterate. (The witness adds: the Defendant was elected as Ward Member of Panchayat during the last elections). At present, the defendant is not Ward Member. We are not living jointly. The land in survey No. 44 is not in joint possession. I deny the suggestion that there was no sub division of survey No. 44 into survey Nos. 44/1 and 44/2. It is not correct to suggest that defendant did not sign Ex.Al. (The witness adds: the signature of the defendant is found at the bottom of first page on the right side of Ex.Al. Ex.Al is witnessed by Theta Mallaih and Theta Pentaiah. It is not correct to suggest that both of them are employees in Hyderabad and they are not residing in Vemulawada village. They come to our village now and them. They were present in the village on 14.01.2002. Except these two persons, none else was present when the partition deed was drafted at chavidi. I paid Rs. 1,000/- to Dr. Mastan Rao, but I do not have any receipt. I did not contact any borewell company for digging the borewell. I know that when my father was alive, we made an attempt to dig a borewell but could not do so because of lack of funds. It is not true to say that I am deposing falsely.

Re-examination: Nil.

P.W.2: (Theta Mallaiah) Chief examination: I am native of Vemulawada. At present I am working in Hyderabad as Sweeper in DEO's office, Hyderabad. I know plaintiff and defendant. Their father is the owner of the land in survey No.44. I used to own land in Vemulawada in survey No. 47, which is on the western side of the plaint schedule land. I know that there was a partition between plaintiff and defendant in 2002 after the death of Sattaiah. I also attested Ex. Al. I can identify my signature. On that day, I came to village along with my family for Sankranthi festival to the house of my father-in-law. Since then, plaintiff and defendant are separately cultivating the land.

Cross Examination: I do not exactly remember the date on which partition deed was executed. I know it was on Sankranthi day. On that day, when I was going to temple at about 9.00 or 10.00 a.m., plaintiffr came to my houseand took me to village chavigi. By thetime I went there, the defendant and Theta Pentaiah were present. None else was present. I do not know who scribed Ex.Al. By the time I went there, it was ready. Plaintiff and defendant told that they divided the property between themselves and it is reduced into writing. I do not remember whether the document was already executed by the time I attested. But, I remember that the defendant signed before us. It is not true to suggest I am deposing falsely because I am distantly related to the plaintiff. It is correct that the brother of wife of plaintiff is married to daughter of my sister. This marriage was performed in 2004. I do not go to Vemulawada regularly. At present, I do not own any land in Vemulawada as I sold my land in survey No. 47. After 2002, I visited Vemulawada only once to attend death ceremony of my relative. I came to this court as requested by plaintiff.

Re-examination: Nil.

P.W.3: (Panchayat Secretary) Chief Examination: I worked as Panchayat Secretary of Vemulawada till 31.05.2007. at present I am working as Extension Officer in the DPO's Office at Karimnagar. I got promotion. I gave certificates Exs. A3 and A4 because plaintiff requested me to give possession certificate and certificate to show that he is paying land revenue. Everybody in the village know that plaintiff and defendant are separately enjoying their respective shares. They partitioned the property between them. I know that plaintiff is in possession of the suit schedule property.

Cross-Examination: I issued Ex.A3 on 22.5.2007 and Ex.A4 on 24.5.2007. By the time, I did not receive promotion orders. By that time, I know that my name was included in promotion panel. On that day, when I issued Exs. A.3 and A.4,1 did not enquire with others whether the plaintiff is in exclusive possession of plaint schedule property or joint family property. I did not verify the records like Pahanis as they were submitted to MRO's office for scrutiny. (The witness adds: The plaintiff and defendant are separately claiming subsidized seed and fertilizers saying that they are two separate farmers having separate possession). I do not remember whether they applied for separate pattadar pass books and title deeds. It is not true to suggest that after I was relieved as Panchayat Secretary I gave Exs. A3 and A.4 with ante date. I do not remember whether plaintiff alone came to the office for certificate or he came with others. I did not collect any fees for issuing possession certificate. I have not visited the land of the plaintiff and defendant. It is not correct to suggest that I am deposing falsely to help plaintiff as he is a friend of mine.

Re-examination: Nil.

D.W.I: (Defendant) Chief Examination: I am the defendant in the suit. The plaintiff is my younger brother. My father owned Acs. 10.00 of land in survey No. 44. It is a joint family property. During his life time, my father, myself and plaintiff used to jointly cultivate the land. The pattadar pass book was issued in the name of my father. Even now the pattadar pass book and revenue records show the name of our father only as pattadar. After death of our father in 2001,1 am in joint possession with the plaintiff. There is no partition. As a co-owner I made lot of efforts to improve the land. During the life time of our father, we got a borewell point fixed by engaging water diviner but we could not dig borewell as we had no money. When I wanted to dig borewell below the neem tree on the Eastern side exactly in the middle of the land, plaintiff thinking that I might dig borewell filed the present suit. There is no partition. I never executed a partition deed on 14.01.2002. The same is false. I never signed Ex.Al. No Geologist ever visited our land. P.W.2 is not a resident of our village. He has left the village long ago. He has no property in the village. The father-in-law of P.W.2, Gangadhar, also migrated to Mumbai in 1998. As a co-owner, I have equal rights in the land. There is no sub-division of survey No. 44. The entire extent of Acs. 10.00 in survey No. 44 is in possession of myself and the plaintiff.

Cross Examination: During his lifetime, my father used to stay with me. Immediately after the marriage, the plaintiff took a separate house. (The witness adds: the plaintiff was married in 1988 and his wife used to quarrel with my mother and father, and therefore, he went out of the ancestral house). After death of our father, the plaintiff did not request me to allow him to come to the ancestral house. There was no partition. Though we are living separately, the property in survey No.44 is joint family property. It is not correct to state that I am deposing falsely. I deny the suggestion that the father in law of P.W.2, Gangadhar did not migrate to Mumbai in 1998.

Re-examination: Nil

D.W.2: (Theta Pentaiah) Chief Examination: I am younger brother of P.W.2. I am working as Attender in Social Welfare Office, Hyderabad. The plaintiff and defendant are related to us. The daughter of our sister is married to brother-in-law of the plaintiff. The father-in-law of P.W.2, Gangadhar, is not residing in Vemulawada since long ago. He went to Mumbai. Before he left our village, he was a Mason. After the death of the father of the plaintiff and defendant, both of them are not separated. All the properties are joint family properties. I never came to Vemulawada in January, 2002. I did not sign as witness on any agreement between plaintiff and defendant.

Cross Examination: I did not attend obsequies of father of plaintiff and defendant. I did not own any property in Vemulawada. I am not staying in Vemulawada. For the last twenty years, I am staying in Hyderabad. I am not in talking terms with P.W.2 as there are some differences. But, I regularly talk to plaintiff and defendant. They meet me when they come to Hyderabad on some work. There were no differences between the plaintiff and defendant. Both of them come together to my house. I deny suggestion that I am one of the attestors of Ex.A.l.

Re-examination: Nil

Ex.A,l : AGREEMENT

We are sons of late Sattaiah. Our family owns an extent of Acs. 10.00 in survey No.44 at Vemulawada. Our family also has an ancestral house in Vemulawada village. Pedda Pochaiah is in occupation of the said house. This for we are generally cultivating the land. But, as advised by wellwishers, we have decided to partition the property equally. We hereby agree to divide the property. The Northern side Acs.5.00 would be enjoyed by Pedda Pochaiah and Southern side Aes.5.00 would be enjoyed by Chinna Pochaiah. We agreed not to claim any rights in the land allotted to other. We agreed for this willingly without any influence from anybody.

This is the Agreement executed by both of us on this the 14th day of January, 2002.

Witnesses:

1.    Sd/-

Theta Mallaiah

2.    Sd/-

Theta Pentaiah

1.     Sd/-

Pedda Pochaiah

2.     Sd/-

Chinna Pochaiah

Ex.A.2 : CERTIFICATE

Dr. Mastan Rao                                                                                                                                                                                          30.06.2007

Geologist

HYDERABAD.

This is to certify that the undersigned has conducted Geology survey of field in survey No.44 of Vemulawada. Taking consideration the magnetic response as shown in Watermeter, the point near the Neem tree (shown to the party) is likely to yield 1,000 gallons of water per hour. The party is advised to dig a borewell to a depth of 150 feet.

Sd/-Dr.Mastan Rao

EX.A.3 : LAND REVENUE RECEIPT

22.05.2007

Received a sum of Rs. 44/- (Rupees forty four only) for 1416 Fasli towards Land Revenue for the land in survey No. 44/1.

N. Mukunda Rao Panchayat Secretary Vemulawada Village.

EX.A.4 : CERTIFICATE OF OWNERSHIP

24.05.2007

This is to certify that Chinna Pochaiah, s/o. Sattaiah, is owner of land admeasuring Acs. 5.00 of land in survey No. 44/1 of Vemulawada. He is in possession of the land. He is cultivating land by raising sun flower and Bendi. He has also paid land revenue.

N. Mukunda Rao Panchayat Secretary Vemulawada Village.

--XXX--

PART - B

10 marks

2. 'A' executed Promissory Note in favour of AB' for an amount of Rs. 1,00,000/- on 01.01.2003 promissing to pay *B' or order Rs. 1,00,000/- by 30.06.2003. He did not pay the amount. XB' issued notice demanding payment on 01.01.2007 and filed a suit for recovery of Rs. 1,18,000/- including interest on 01.07.2007 on the file of Court of Junior Civil Judge. 'A' (defendant) raised plea that Court of Junior Civil Judge has no pecuniary jurisdiction and that the suit is barred by limitation. Write a brief note on the objections raised by the defendant.

5 marks each

3.                 a) What are the powers of Civil Court in incidental and supplemental

proceedings?

b) What are the principles regarding exclusion of jurisdiction of Civil Court?

5 marks each

4.                 a) When can the trial of a suit be stayed on the ground that another suit

previously instituted is pending?

b) What is meant by constructive res judicata?

2 Vi marks each

5.                 a) What is burden of proof?

b)      In a civil case, when the character of any person is relevant?

c)        Expert evidence is not always binding on the Court. Write a brief note on this.

d)      When transfer of property may be made orally?

5 marks each

6.                 a) In a transfer of immovable property, what are the rights and liabilities of

the buyer?

b) Define "Easement" and explain "Dominant heritage and Dominant Owner" and "Servient heritage and Servient Owner".

2 1/2 marks each

7.                 Write short notes on the following:

a)          Feeding the grant by estoppel.

b)          Estoppel of Tenant

c)            Secondary Evidence.

d)          Necessary party and Proper party.

5 marks each

8.                 a) If salary and allowances of a Judgment Debtor, who is a Government

Servant, are sought to be attached in execution of a money decree, what are the

restrictions imposed by law on the power of the Court?

b) Under What circumstances, the Court can strike out pleadings?

10 marks

9.     Once Mortgage is always a Mortgage - Explain.

10 marks

10.   Explain the provision in the Section 89 of the Code of Civil Procedure.