Sri A V Pardhasaradhi

FAIR

IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE

KARIMNAGAR

PRESENT : SRI A.V. PARDHASARADHI, Prl. District Judge, Karimnagar, F.A.C., I Additional District Judge, Karimnagar.

Friday, the 21 stday of December, 2018

ORIGINAL SUIT NO. 102 OF 2012

Between:-

1.Arendula Anjaiah, S/o Ankus @ Shankaraiah, aged 49 Yrs, Occ: Agriculture

2.Arendula Rajendar, S/o Ankus @ Shankaraiah, aged 32 Yrs, Occ: Agriculture …Plaintiffs

And

1.Arendula Ankus @ Shankaraiah, S/o Pochaiah, aged 65 Yrs, Occ: Agriculture, R/o Irukulla Village of Karimnagar Mandal, Karimnagar District.

2.Arendula Babu, S/o Ankus, aged 28 Yrs, Occ: Labour, R/o Irukulla Village of Karimnagar Mandal, Karimnagar District.

3.Arendula Papamma, W/o Ankus @ Shankaraiah, aged 55 Yrs, Occ: Housewife, R/o Irukulla Village of Karimnagar Mandal, Karimnagar District.

4.Nadipelli Ashok Rao, S/o Venkat Rao, aged 49 Yrs, Occ: Business, R/ o H.No. 2-10-816/C, Jyothinagar, Karimnagar.

5.Nadipelli Nalini, W/o Ashok Rao, aged 42 Yrs, Occ: Housewife, R/o H.No. 2-10-816/C, Jyothinagar, Karimnagar.

6.Jadala Veeramallu, S/o Pochaiah, aged 65 Yrs, Occ: Agriculture, R/o Cherlaburthkur village of Karimnagar Mandal and District.

7.Eda Shankar Reddy, S/o Raji Reddy, aged 53 Yrs, Occ: Agriculture, R/o 7-1-264, Manakammathota, Karimnagar.

8.Potharaju Sadaiah, S/o Rajakomuraiah, aged 31 Yrs, Occ: Agriculture, R/o H.No. 8-4-9, Ramnagar, Godavarikhani of Ramagundam Mandal of Karimnagar District.

...Defendants

This suit coming before me on 15.11.2018 for final disposal in the presence of Sri K. Gopal Reddy, Advocate for the petitioners and Sri E. Madhusudhan Rao, Advocate for the Defendant No.1 to 5 and 7 and Sri M. Ramakrishna Chary, Advocate for defendant No.8, that defendant No.6 have 2

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been set-exparte, having been heard and having stood over for consideration till this day, this Court passed the following:- -: J U D G M E N T :- 1.00.The plaintiffs No.1 and 2 are brothers and children of the defendant No.1 and 3 filed this suit for a declaration that the suit schedule A to C properties are joint family properties and as such they are entitled for partition of the same and so to divide the same and allot 2/5th share to them each and also for a declaration that registered agreement of sale cum G.P.A., dated 25-01-2012 executed by the defendant No.1 in favour of the defendant No.8, registered sale deeds

dated 19-10-2005 executed by defendant No.1 in favour of the

defendant No.4 and defendant No.5 and another registered sale deed

dated 22-12-2009 executed in favour of defendant No.6, the registered

sale deed dated 23-12-2005 executed by the defendant No.1 in favour of defendant No.5 and the registered sale deed dated 03-09-2010 executed by defendant No.3 in favour of defendant No.7 are all null and void.

2.00.The case of the plaintiffs is that the defendant No.1 and defendant No.3 are their parents, defendant No.2 is their another brother and that suit schedule properties are all Hindu Joint Family properties which are land and house properties wherein they have share on the ground that the first plaintiff and his father the defendant No.1 went to

Dubai in the year 1983 by accepting employment and that second plaintiff and their mother defendant No.3 used to attend cultivation as their joint family was owning Ac.3-00 of ancestral property and that they used to send money earned by them at Dubai with which the plaint schedule A to C properties were purchased but in the name of defendant

No.1 and defendant No.3, their father and mother and that they have been enjoying the suit schedule properties jointly from the last more than 3

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20 years by living in joint. It is also pleaded that since the market value of the suit schedule properties is increased and taking advantage of the registered documents for the schedule properties in the name of defendant No.1 and defendant No.3 and with a view to avoid share to the plaintiffs, they brought into existence registered sale deeds in the name of the defendant No.4 to defendant No.8 and when they raised dispute for partition before the elders and against the advise of the elders the defendants did not agree for partition and hence the suit.

3.00.The defendant No.1 to 3 and 7 filed common written statement, whereas defendant No.4 and 5 filed their common separate written statement.

3.01.It is pleaded by the defendant No.1 to 3 while admitting the relationship between the plaintiffs and the defendant No.1 to 3 that the defendant No.1 the father of the plaintiffs and of defendant No.2 did not inherit any property from his father who died in the year 1951 when he was aged about 14 years except some debts. It is also pleaded that his father in law also died and that at then he had no other except his mother in law to look after him and then one Yellaiah brother of his mother in law being brother of his mother brought up the defendant No.1 and defendant No.3 by taking them to hut at Irukulla village and at then both defendant No.1 and defendant No.3 used to work as labourers and used to maintain their children. It is further pleaded that the defendant

No.3 the mother of the plaintiffs, by doing labour work at Bombay and by selling her gold and silver ornaments purchased Ac. 1-20 guntas of land bearing Sy.No.171/A and 172/A shown as item No.9 in plaint schedule on 01-03-1983 and thus it is her self-acquired and stridhana property. She 4

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also purchased item No.12 consisting of 0-23 guntas of land bearing

Sy.No. 326 and Ac.1-06 guntas of land bearing Sy.No.332 at Irukulla village under registered sale deed dated 26-01-2005 and that it is also his self acquired property. It is further pleaded that the plaint schedule A to

C properties are not joint family properties but are self acquired properties of the defendant No.1 and defendant No.3. It is denied that the joint family owned Ac.3-00 of land at Irukulla village and with the income derived from it and with the amount sent by first plaintiff and first defendant, the family purchased schedule A property and constructed a house shown in schedule B and C in the name of defendant No.1 and 3 and it is an utter falsehood. It is further pleaded the defendant No.1 went to Bombay in the year 1961 and worked there till 1975 and earned some noney and there after he went to Dubai in the year 1975 where at he worked till 1980 and also earned money by working as foreman in Satap

Company of Gujarat and he purchased 2-1/2 guntas of house site bearing

Sy.No. 779 situated at Durshad village and later constructed three shops which is item No. 11 (2) of schedule B. Thus it is his self acquired property. It is also pleaded that a house site was given by mother of the defendant No.3 to defendant No.3 in the year 1999 wherein the wife and husband constructed house bearing door No. 1-62 and thus it is self acquired property of the defendant No.3. It is further pleaded that the defendant No.1 with his onw earnings purchased 0-06 guntas of land out of Sy.No.173 at Durshed village from one S. Shankaraiah under registered sale deed dated 28-04-1988 and constructed a house bearing door No.5- 53/B which is item No.1 of schedule B and it is self acquired property. It is further pleaded that the first plaintiff went to Dubai in the year 1983 but did not earn money whereby he returned to India on 09-07-1986 and in the month of May 1986 his marriage was performed and from then he 5

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remained in India doing business in Fertilizers wherein he suffered losses and then he has taken transport vans and transporting civil supplies items to the villages by living at Sircilla and other places and in fact he was given financial aid by the defendant No.1 in purchasing the vehicles.

Thus it is stated that the first plaintiff has no connection with the family members since last more than ten years. Thus is it pleaded that neither the plaintiffs No.1 and 2 nor the second defendant their another son have any rights in the plaint schedule properties so to seek partition.

However, he admitted that the suit schedule properties were sold to the defendant No.4 to 8 under the registered documents and it is because the plaintiffs have no share therein. Thus they prayed to dismiss the suit.

3.02.The defendant No.4 and 5 in their written statement pleaded the same what is pleaded by defendant No.1 to 3 and 7 and added that the sale deeds in their favour are true and genuine and that the plaintiffs have no share therein and that the revenue authorities mutated their names and issued pattedar passbook and title deed books in their favour after conducting enquiry and that the suit is not maintainable. Hence, prayed to dismiss the same.

3.03.The defendant No.8 in his separate written statement pleaded while denying the plaint averments the suit schedule properties are joint family properties wherein the plaintiffs have share that it is the defendant No.1 and defendant No.3 are the absolute owners and the properties are their self-acquired and that the plaintiffs have no right to question the same sold by the defendant No.1 and 3 in favour of the other defendants including who obtained registered agreement of sale cum G.P.A on 21-12-2017 and for valid consideration and obtained 6

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possession of the property sold thereunder and so prayed to dismiss the suit with exemplary costs.

4.00.Basing on the pleadings the following issues are settled for trial :-

1. Whether the suit schedule properties are the joint family properties of plaintiffs and defendants No.1 to 3 or exclusive property of D-1 and D-3 ?

2. Whether the plaintiffs are in joint possession of the plaint schedule properties ?

3. Whether the plaintiffs are entitled for declaration as prayed for?

4. Whether the plaintiffs are entitled for partition of the plaint schedule properties, if so, to what share ?

5. To what relief 5.00.During the course of trial the first plaintiff examined himself as PW-1 and four witnesses on their behalf as PW-2 to PW-4 and they got marked Ex A-1 to Ex A-11 and closed their side evidence.

5.01.For the defendants the first defendant himself examined as

DW-1, one independent witness as DW-2, fourth defendant as DW-3 and defendant No.7 as DW-4 and got marked Ex B-1 to Ex B-4 through Dw-1,

Ex B-5 to Ex B-16 through the DW-3 and closed their side evidence.

6.00.Heard both the learned counsel for the plaintiffs, defendants and perused the entire evidence brought onto the record of both oral and documentary.

7.00.The learned counsel for the plaintiffs contended that the plaintiffs are none otherthan children of defendant No.1 and defendant

No.3 and both the plaintiffs and the defendant No.1 went abroad and earned money and purchased the schedule properties apart from using income that was derived from Ac.3-00 of ancestral property which used to be cultivated by second plaintiff for some time along with defendant

No.2 and defendant No.3 their another brother and mother and it is 7

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clearly admitted by the defendant No.1 as DW-1 that both the plaintiffs were working in Dubai and Sharja foreign countries and therefore the suit may be decreed as prayed for.

7.01.The learned counsel for the defendants contended the the defendant No.1 did not inherit any property from his parents except debts and that even he became orphan even at the age of 14 years and that he was brought up by brother of father of his wife the defendant No.3 and that he along with his wife the defendant No.3 used to work as labourers at Mumbai whereat the first plaintiff was born and went abroad and earned money and the defendant No.3 the mother of the plaintiffs also worked as labourers and by saving some money apart from by selling her gold and silver ornaments purchased some property as the first defendant purchased and that there is no iota of evidence brought on to the record by the plaintiffs that they saved money and invested in their purchasing the properties and in fact the first plaintiff stayed in Dubai only for three years during which period he had no income at all and so he returned to India and got married and therefore the suit schedule properties are not at all joint family properties, hence, the plaintiffs have no share there in and thereby the alienations made by the defendant

No.1 to 3 in favour of defendant No.4 to 8 cannot be questioned and that they cannot be cancelled or declared as null and void and so the suit may be dismissed with costs.

8.00.Now the points that arise for consideration are of each issue.

9.00.ISSUE NO.1:-

The first plaintiff examined himself as PW-1 deposed as in the plaint that he along with second plaintiff and defendant No.1 to 8

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defendant No.3 constitute a joint family. It is not at all in dispute. That the plaintiff No.1 and 2, defendant No.2 are children of defendant No.1 and 3. He deposed that their joint family possessed Ac.3-00 of ancestral property at Irukulla village. He further deposed that he along with his father the defendant No.1 went to Dubai in the year 1983 by securing the employment and that second plaintiff as well as the defendant No.3 the mother used to attend agriculture operations at Irukulla village and that he and his father defendant No.1 earned huge money jointly for a period of 15 years at Dubai and used to send the same to the defendant No.2 and 3 and also to the plaintiff No.2 and with that income and the income derived from the ancestral property of Ac.3-00 the suit schedule properties were purchased but in the name of defendant No.1 as Kartha of the family and defendant No.3 their mother and so all the suit schedule properties are joint family properties wherein they have share.

Ex A-1 to Ex A-5 are the registered agreement of sale cum G.P.A., and registered sale deeds, and Ex A-6 is certified copy of rectification deed which are executed by defendant No.1 and 3 in favour of third parties and thus they have not shown any proof that the properties subject matter of these registered documents were earned by the plaintiffs along with their parents. Ex A-7 is the Certificate issued by Village Secretary in the name of the defendant No.1, Ex A-8 is the Certificate issued by Village

Secretary, Durshed Gram Panchayat in the name of defendant No.3 and

Ex A-9 is similar Certificate issued by Village Secretary of Erukulla village in the name of defendant No.1 stating that the houses mentioned therein are registered in the name of the defendant No.1 and defendant No.3.

Thus those certificates also would not show that the schedule properties are ancestral properties or joint family properties. Ex A-10 and Ex A-11 are pahanies for certain land properties but are issued by Village 9

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Revenue Officer who is not at all competent to issue pahanies since the competent authority is only the Mandal Revenue Officer or Thahsildar.

Thus they are not admissible in evidence. Even otherwise the said pahanies are found recorded in the name of third parties as well as the defendant No.1 and 3. Thus the documents produced for the plaintiffs are not at all establishing that the suit schedule properties are joint family properties. No doubt it being the case of the plaintiffs that those properties are in the name of the defendant No.1 and 3 by alleging that the defendant No.1 is Kartha of the joint family and defendant No.3 being the mother and thus out of the income what the first plaintiff while working at Dubai along with his father used to send apart from the income derived from Ac.3-00 of agriculture land said to be ancestral property, it is for the plaintiffs now to show that their joint family possessed of ancestral property of Ac.3-00 and there from some income was being derived and that first plaintiff used to send money from Dubai.

9.01.The PW-1 stated in his cross examination that he studied upto 7th class and he is working as an Auto driver and previously he attended the agriculture work and that he went to Dubai after about four years of his father went to Dubai in the year 1975 and stayed for about eight years, though in the plaint it is pleaded that he stayed in Dubai for about 16 years. He failed to produce his passport to show that he went to

Dubai and he secured employment and what was his income he used to receive. However, he stated that he worked under his father at Dubai and so his father only looked after his financial affairs. But it is strange that he would not know what were his earnings at there.

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9.02.No doubt the defendant No.1 examined as DW-1 in his cross examination admitted that the first plaintiff worked in Shataff

Constructions from the year 1981 and that his salary was mentioned in the Visa at 420 to 480 Dinars per month. He however admitted that the first plaintiff used to send money to India separate from him. However, he denied that the first plaintiff worked for five years at Sharja from 29- 05-1981 to 13-07-1986. The said stray admission of PW-1 cannot be taken as proof that the first plaintiff was sending his income to India and if it is so, it is not known to whom he was sending. According to the defendants it was only for three years the first plaintiff stayed at Dubai.

But according to the first plaintiff he stayed there about for 15 years.

Had it been so, he should have produced his passport to prove that for how long many years he stayed in Dubai. In fact in the cross examination he stated that it is not for 15 years but he stayed only for eight years at Dubai. He admitted that he did not file any document to show that what was his income or earnings. He further admitted that he did not file any documentary proof to show that he used to send his earnings to his mother from Dubai who is staying at India. Though he stated that his marriage took place in the year 1987, according to the defendants the first plaintiff got married in the year 1986 which is not suggested to be false.

9.03.If the first plaintiff went to Dubai in the year 1983 and he was married in the year 1986 it must be accepted that he stayed in Dubai only for three years. Because he did not state that after the marriage also he went back to Dubai and stayed at there for another five years as he admitted in his cross examination that he stayed for eight years in

Dubai. If it is accepted that after marriage also he left for Dubai, he must 1

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be sending his money to his wife as he was already married much less in the absence of any proof that he sent the money to his brothers who are the second plaintiff and defendant No.2 or to the defendant No.3 his mother and not to his wife. Transferring money from Dubai could be only through Bank and so he would be having proof with him as to whose bank account he used to transfer from Dubai and what amount he was sending on every month or on every year. The PW-1 stated that he has no bank account at Dubai. If that is so, it is not known as to how he used to transfer the money.

9.04.In fact, the currency in Kuwaiti is called Dinars but in Sharja country the same is named as Riyals. The DW-1 evidence is that the employment of the first plaintiff and himself was at Sharja but he referred to his income in Dinars which cannot be correct. If the said income of 420 to 480 Dinars is referred to as Riyals his salary per month would be only few hundreds of rupees or thousands since one Riyal would be equivalent to Rs. 15 to Rs. 17. If what is deposed by the DW-1 that they used to receive Dinars which would be at Kuwaiti it would be Rs.

14,798.52 for 500/- Dinars during the year 1980 wherein the first plaintiff must have required for his livelihood at there some amount and it is for him to explain as to what amount he used to save and send to India and to whom. He failed.

10.00.Though it is not the case of the plaintiffs as seen from the plaint and evidence of PW-1 that second plaintiff also went to Gulf countries worked there and earned money and send the same to India and especially to his parents or to the defendant No.3 his mother and according to the PW-1 as well as his witnesses PW-2 and PW-3 the second 1

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plaintiff used to attend agriculture work at Irukulla village. The PW-4 deposed that both the plaintiffs used to go to Gulf countries and worked along with their father defendant No.1 and used to earn money and purchased the suit schedule properties with their joint earnings. In the cross examination PW-3 stated that the second plaintiff stayed at Dubai for three years, by denying that the second plaintiff never visited Dubai.

The PW-5 also deposed the same what is deposed by PW-4. No doubt the defendant NO.1 examined as DW-1 stated in his cross examination that second plaintiff also worked in Shataff Company at Sharja and that he sent money to get Visa for the second plaintiff. Therefore, it canbe accepted that the second plaintiff too left for Sharja and worked there, if not for five years as suggested but for some period. The second plaintiff did not come into witness box and depose that he earned money at

Sharja and invested the same for purchasing of the suit schedule properties. He did not depose by coming into witness box that he used to assist his brother defendant No.2 and his mother defendant No.3 living in

India in agriculture operations or working otherwise and invested his earnings so to purchase the suit schedule properties. Though the PW-2 to

PW-5 are examined for the plaintiffs who are co-villagers, they did not state as to the approximate income, the plaintiffs used to earn and when and how they used to send except the PW-3 who stated that by way of cheques the plaintiffs and defendant No.1 used to send and it was from 1985 to 1989.

10.01.No evidence of whatsoever is placed before this Court by plaintiffs that the defendants inherited Ac.3-00 of land from his father so to record the same as ancestral property and nucleus to acquire other property. In fact, it is the case of the defendant No.1 that during his 14th 1

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year of age and it was in the year 1951 his father died leaving some debts and that he was brought up by one Yellaiah brother of his father in law. It is not in dispute that the defendant No.3 wife of defendant No.1 is none other than the daughter of maternal uncle of the defendant No.1 and Yellaiah is brother of mother of the defendant No.3. In the absence of any evidence brought on to the record by the plaintiffs that Ac.3-00 of land was succeeded by defendant No.1 on death of his father, this Court is of the view that the defendant No.1 did not succeed to ancestral/coparcenary property.

10.02.It is not at all in dispute but is admitted fact that the suit schedule properties are all standing either in the name of defendant No.1 or defendant No.3 or both of them who are said to have acquired on their own by working as labourers and having received house property by defendant No.3 from her mother and that by selling gold and silver ornaments.

10.03.Therefore, this Court is of the clear view that the plaintiffs failed to show that the suit schedule properties are joint family properties of plaintiffs and defendant No.1 to 3. Accordingly, this issue is answered against the plaintiffs.

11.00.ISSUE No.2 :-

The alleged joint possession of the plaintiffs in the suit schedule property along with defendant No.1 to defendant No.3 would arise if there is any coparcenary property and the schedule properties were brought into hotch pot. When there is no coparcenary property or joint property acquired by the exertion of the plaintiffs along with the 1

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defendant No.1 to 3 the question of their joint possession would not arise.

Accordingly, this issue is answered against the plaintiffs.

12.00.ISSUE No.3 :-

When the plaint schedule properties are exclusive properties of the defendant No.1 and defendant No.3 they have every right to dispose them as they wish and so the registered sale deeds and agreement of sale cum G.P.A., executed by them cannot be questioned by the plaintiffs and as such they are not entitled for any declaration to declare the said sale deeds in favour of the defendant No.4 to 8 as null and void. Therefore, this issue is answered against the plaintiffs.

13.00.ISSUE No.4 :-

When the suit schedule properties are failed to be proved as joint and coparcenary property, the plaintiffs during the life time of the defendant No.1 and 3 are not entitled for partition and share. Therefore, this issue is answered against the plaintiffs.

14.00.ISSUE No.5 :-

In view of the answering of these issues No.1 to 4 against the plaintiffs, the plaintiffs are not entitled for any relief. Hence, the suit is dismissed with costs.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open Court on this the 21st day of December,

2018.

Prl. District Judge, Karimnagar, F.A.C., I Addl. District Judge, Karimnagar.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PLAINTIFF: FOR THE DEFENDANT:

PW-1A. AnjaiahDW-1A. Ankus

PW-2K. NarsaiahDW-2G. Pochaiah

PW-3B. MankaiahDW-3N. Ashok Rao

PW-4B. RajaiahDW-4E. Shankar Reddy

PW-5K. Mallaiah

EXHIBITS MARKED

FOR THE PLAINTIFF :

Ext.A1C.C of registered Agreement of Sale Cum G.P.A.No.450/2012

dated 25-01-2012

Ext.A2C.C of registered Sale deed No. 1185/2005, dt. 19-10-2005

Ext.A3C.C of registered Sale deed No. 1184/2005, dt. 19-10-2005

Ext.A4C.C of registered Sale deed No. 5189/2005, dt. 22-12-2009

Ext.A5C.C of registered Sale deed No. 4491/2010, dt. 03-09-2010

Ext.A6C.C of rectification deed No. 14345/2005, dt. 03-09-2010

Ext.A7Ownership Certificate issued by Panchayat Secretary Durshed, Dt. 26-03-2012 for H.No. 5-53/B

Ext.A8Ownership Certificate issued by Panchayat Secretary Durshed, Dt. 26-03-2012 for H.No. 1-1/2

Ext.A9Ownership Certificate issued by Panchayat Secretary Durshed, Dt. 28-03-2012 for H.No.1-62

Ext.A10Extract of Pahani patrika for the years 2009-10, issued by Village Revenue Officer, Irukulla

Ext.A11Extract of Pahani for the years 2009-10 issued by Village Revenue Officer, Irukulla

FOR THE DEFENDANT:

Ext.B1Rythwari Title Deed, Dt. 18-08-2010

Ext.B2Pattedar Pass Book, Dt. 12-08-2011 1

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Ext.B3Mutation proceedings issued by Thahsildar, Karimnagar

Ext.B4Original registered Sale Deed, dated 03-09-2010

Ext.B5Original registered sale deed document No. 11885/2005, Dt. 19- 10-2005 executed by defendant No.1 in favour of defendant No.4

Ext.B6Original registered sale deed document No. 11884/2005 Dt. 19- 10-2005 executed by defendant No.1 in favour of defendant No.5

Ext.B7Original rectification deed document No. 14345/2005 Dt. 23-12- 2005 executed by two vendors of document bearing No. 11884/2005

Ext.B8Original mutation proceedings No.B1/17/2007 on 11-06-2007 issued by Thahsildar, Karimnagar in favour of defendant No.4 deleting the name of the defendant No.1 and substituting the name of defendant No.4

Ext.B9Original mutation proceedings No.B1/15/2007 on 11-06-2007 issued by Thahsildar, Karimnagar in favour of the defendant No.5 deleting the name of the defendant No.1 and substituting the name of defendant No.5

Ext.B10Original title deed pass book bearing No.376307 with patta No.547 issued in favour of defendant No.4

Ext.B11Original title deed pass book bearing No. 376305 with patta No.548 issued in favour of defendant No.5

Ext.B12Pattedar Adangal Pahani in respect of Sy.No.91/B obtained from Meeseva for the Fasli 1425 Dt.27-01-2016

Ext.B13Pattedar Adangal Pahani in respect of Sy.No.87/A obtained from Meeseva for the Fasli 1425, Dt. 27-01-2016

Ext.B14Pattedar Adangal Pahani in respect of Sy.No. 91/B obtained from Meeseva for the Fasli 1426, Dt. 03-04-2017

Ext.B15Pattedar Adangal Pahani in respect of Sy.No. 87/A obtained from Meeseva for theFasli 1425, Dt. 28-07-2015

Ext.B16Pattedar Adangal Pahani in respect of Sy.No.91/B obtained from Meeseva for the Fasli 1425, Dt. 28-07-2015

Prl. District Judge, Karimnagar, F.A.C., I Addl. District Judge, Karimnagar.

1FAIR

IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE, KARIMNAGAR

PRESENT:SRI A.V.PRADHASARADHI, Prl. District Judge, F.A.C., I Additional District Judge,

K A R I M N A G A R.

Monday, the 17th day of December, 2018

APPEAL SUIT NO. 15 OF 2013

Between:

Sunka Mallaiah, aged about 74 Yrs, S/o Late Bhoomaiah, Occ: Agriculture, R/o

Laxmipur village of Manakondur Mandal, Karimnagar District.

….Appellant/Plaintiff

and

1.Edla Bhadraiah, aged about 55 Yrs, S/o Late Balaiah, Occ: Agriculture.

2.Edla Adi Reddy, aged about 37 Yrs, S/o Bhadraiah, Occ: Agriculture.

3.Edla Surender, aged about 35 Yrs, S/o Bhadraiah, Occ: School T\Owner.

4.Karra Veeramma, aged about 72 Yrs, W/o of Late Dathaiah, Occ: Household,

All are r/o Laxmipur village of Manakondur Mandal, Karimnagar District.

….Respondents No.1 to 4 /Defendants No.1 to 4.

On appeal against the judgment and decree, dated 24-01-2011 passed by the Principal Junior Civil Judge, Karimnagar made in O.S. No.171 of 2003.

Between:

Sunka Mallaiah, aged about 74 Yrs, S/o Late Bhoomaiah, Occ: Agriculture, R/o

Laxmipur village of Manakondur Mandal, Karimnagar District.

….Plaintiff

and

1.Edla Bhadraiah, aged about 55 Yrs, S/o Late Balaiah, Occ: Agriculture.

2.Edla Adi Reddy, aged about 37 Yrs, S/o Bhadraiah, Occ: Agriculture.

3.Edla Surender, aged about 35 Yrs, S/o Bhadraiah, Occ: School T\Owner.

4.Karra Veeramma, aged about 72 Yrs, W/o of Late Dathaiah, Occ: Household, 2FAIR

All are r/o Laxmipur village of Manakondur Mandal, Karimnagar District.

….Defendants No.1 to 4.

MEMORANDUM OF APPEAL FILED ON BEHALF OF THE APPELLANT UNDER

ORDER 41 RULE 1 R/W UNDER SECTION 96 OF C.P.C.

This Appeal Suit coming on before me on 09-11-2018 for hearing in the presence of Sri A. Prabhakar Sharma, Advocate for for the Appellant/Plaintiff and Sri G. Satyanarayana Reddy, Advocate and Sri P. Lachi Reddy, Advocate for defendants No.1 to 4/respondents No.1 to 4, having been heard and stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1.00. This appeal is preferred by the plaintiff whose suit is dismissed by the learned trial court by its judgment and decree dated 24-01-2011 passed in O.S No. 171 of 2003 on the file of Principal Junior Civil Judge’s Court,

Karimnagar.

2.00. The plaintiff filed the suit originally against the defendant No.1 to 3 and subsequently impleaded the D-4 and sought for permanent injunction in respect of the suit schedule property which is a dry land of Ac.

1-13 guntas bearing Sy.No.1331/3 situated at Laxmipur village of

Manakondur Mandal of Karimnagar district. It is pleaded there in that the suit schedule property was originally owned by his father and after the death of his father, his sister filed suit in O.S.No.186 of 1979 on the file of

Subordinate Judge Court, Karimnagar for partition of the suit schedule property herein and some other properties and that suit ultimately ended in compromise whereby he was given the suit schedule property and some other properties towards his share. The revenue authorities issued pattedar pass book and title deed pass book in his name for the suit schedule property and other lands that came to his share and he has been in continuous possession of the same and he is cultivating the said land. While so, the defendants who are strangers to the suit schedule property tried to 3FAIR interfere with his possession taking advantage of ownership of the land of

Smt. Lachama the mother of the first defendant and grand mother of defendant No.2 and defendant No.3 on eastern side to the suit schedule property and it was on 09-04-2003. He could at then with the help of his well wishers prevented them but they threatened him that they will dispossess him from the suit schedule land within 15 days. Therefore, the suit.

3.00.The defendant No.1 to 3 herein filed their common written statement denying the plaint allegations. It is pleaded by them that Ac. 2-26 guntas of land bearing Sy.No. 1331/3 was sold by the father of the plaintiff under simple sale deed on 20-06-1973 to Smt. Karre Veeramma the mother in law of the first defendant and also delivered possession of the same to her and thus from then Smt. Karre Veeramma was in possession of the said land which includes the suit schedule property. It is also pleaded that Smt. Karre

Veeramma the mother in law of the first defendant got validated the simple sale deed and thereafter the Mandal Revenue Officer, Manakondur issued pattedar and title deed pass books in her favour and that as per the instructions of Smt. Karre Veeramma the defendant No.1 and his father are cultivating said land. It is denied that the sister of the plaintiff filed suit for partition and it was ended in compromise and that the suit schedule property came to the share of the plaintiff and that the plaintiff is in possession of the same. It is further pleaded that the plaintiff created ownership in respect of the suit schedule land by managing the revenue authorities and created pattedar and title deed pass books for the suit schedule property along with other properties. It is also pleaded that on coming to know that name of the plaintiff is recorded in the pahanies as possessor of the suit schedule property the mother in law of the defendant No.1 filed application before the

Mandal Revenue Officer for rectification of wrong entry and it is pending.

4FAIR

Further, it is pleaded that when the total extent of land in Sy.No.1331/3 is Ac.

2-26 guntas, the plaintiff filed this suit only for Ac. 1-13 guntas without explaining as to what happened to the remaining Ac. 1-13 guntas. Thus, it is pleaded that the plaintiff is never in possession of the suit schedule property and that their interference with the plaintiff possession would not arise and so prayed to dismiss the suit.

3.01.After the defendant No.4 is impleaded who is mother in law of the defendant No.1 she filed her written statement reiterating the same pleas taken by the defendant No.1 to 3 in the written statement that she purchased Ac. 2-26 guntas of land including the suit schedule property bearing Sy.No.1331/3 from the father of the plaintiff under simple sale deed

dated 20-06-1973 and from then she is in possession of the same without

any interference and that she got validated the simple sale deed and she obtained the pattedar pass book and title deed pass book under the R.O.R.

Act and that she filed an application before the Mandal Revenue Officer on coming to know of the recording of the name of the plaintiff in revenue record to rectify the entry and that no explanation is given for an extent of

Ac. 1-13 guntas out of Ac. 2-26 guntas purchased by her as the suit is filed only for Ac. 1-13 guntas of land and that she authorized the defendants to cultivate the same and thus she prayed to dismiss the suit.

4.00.Basing on the above pleadings the learned trial Court framed the following two issues for trial:

1.Whether the plaintiff is entitled for perpetual injunction as prayed for?

2.To what relief ?

5.00. During the course of trial, the plaintiff examined himself as PW- 1 and nephew of the plaintiff examined as PW-2 and got marked Ex A-1 to Ex 5FAIR

A-9 and closed its side evidence. For the defendants the fourth defendant examined herself as DW-1, the first defendant as DW-2, the neighbour to the suit schedule property as DW-3 and Mandal Revenue Officer, Manakondur as

DW-4 and got marked Ex B-1 to Ex B-21 and closed its side evidence.

6.00.After hearing both side and perusing the record, the learned trial

Court disbelieved the case of the plaintiff by holding that the plaintiff failed to prove that the suit schedule property is in his possession and on the otherhand the defendant No.4 proved that she purchased the suit schedule property when it is prior to filing of the suit for partition by the sister of the plaintiff and since the plaintiff did not ask for declaration of title, the suit is dismissed.

6.01.The learned counsel for the appellant/plaintiff contended that the learned trial Court judgment is contrary to law, facts on record and it ought to have considered that certified copies of final decree in O.S.No.186 of 1979 marked in Ex A-1 made it very clear that the suit schedule property a part of schedule No.1 in the compromise decree was allotted to the plaintiff and the same is further proved from pattedar pass book and title deed marked in Ex

A-2 and Ex A-3 which was issued basing on final decree. It is also contended that the learned trial Court ought to have held that the total extent of Ac. 2- 26 guntas bearing Sy.No.1331/3 was divided among the plaintiff, his sister by name D. Laxmi and his nephew by name R. Venkatesh and it is Ac. 1-13 guntas, 0-27 guntas and 0-26 guntas respectively to each of them as is mentioned in the final decree marked in Ex A-1 and so the question of non explanation by the plaintiff for Ac. 1-13 guntas would not arise as commented by the learned trial Court and that the defendants filed to prove the simple sale deed set up by them in favour of the defendant No.4 which in 6FAIR fact is a forged document and that pahanies in favour of the defendant No.4 marked in Ex B-10 to Ex B-12 showing the defendant No.4 is in possession of property are without basis and in fact the defendant No.4 never cultivated the suit schedule property, thus the plaintiff being son of the original owner of the property as even admitted by the defendants is having title which follows possession and so the judgment and decree passed by the learned trial Court may be set-aside and that the suit may be decreed by allowing the appeal.

6.02.The learned counsel for the respondents while supporting the judgment and decree passed by the learned trial Court contended that the compromise decree obtained by the plaintiff and his sisters was subsequent to the sale of the suit schedule property and another extent of Ac. 1-13 guntas by the father of the plaintiff in favour of the defendant No.4 and in fact the plaintiff herein took the same plea in his written statement filed in the suit for partition filed by his sister that the said item of property is not available for partition and now taking the advantage of the compromise decree he managed the revenue officials and obtained passbooks and thus filed this suit and he failed to produce single document to show that he is cultivating the suit schedule property and that there is no cause of action to file the suit and so prayed to dismiss the appeal.

6.03.It is also contended for the defendants/respondents herein that the suit for simple injunction is not maintainable and that the plaintiff ought to have prayed for declaration of title which he did not, since he cannot establish the same. It is also contended that the plaintiff in this appeal sought for withdrawal of the suit seeking permission to sue for declaration of title which application was dismissed as the same was opposed by the 7FAIR respondents where from also it is clear that the plaintiff ought to have filed suit for declaration of title but not simple suit for injunction.

Thus is it contended by the learned counsel for the defendants/respondents herein the appeal is merit-less, hence, it may be dismissed.

7.00.This court has gone through the entire material available on record of both oral and documentary evidence. The pleadings of the parties as well as impugned judgment.

8.00.Now the points that arise for determination in this appeal are:

(I) Whether the plaintiff could prove that he is in lawful

possession of the suit schedule property as on the date of

filing of the suit?

(ii) Whether the simple suit for permanent injunction is not maintainable?

(iii) Whether the plaintiff is entitled for permanent injunction as prayed for?

(iv) Whether the learned trial Court committed error in the

impugned judgment requiring interference by this Court?

(v) To what relief?

9.00.POINT NO.1:-

It being a suit filed for perpetual injunction the burden is on the plaintiff to prove that he is in lawful possession of the suit schedule property and there is cause of action for him to file the suit.

9.01.To prove the possession the case of the plaintiff is mostly rested on the title on the principle that “possession follows title”. The case of the defendants is that the defendant No.4 mother in law of the defendant No.1 purchased the suit schedule property of Ac.1-13 guntas and other extent therein of Ac.1-13 guntas total in Ac.2-26 guntas which entire extent bears the same survey number 1331/3. The title set-up by the defendant No.4 is under simple sale deed executed by the father of the plaintiff and that she got regularized the same by approaching the concerned revenue authorities.

8FAIR

Since it is not a suit for declaration of title it may not be necessary for this court to go into the validity of the title of the defendant No.4 except for the purpose of finding whether semblance of title could be established, so to say that the D-4 through the D-1 is in possession of the suit schedule property.

As already stated at first the plaintiff has to discharge the burden of proof that there was no sale in favour of the defendant No.4 by his father and that defendant No.4 is not in possession of the schedule property but she through her men trying to interfere with his possession. Thus it is for the plaintiff to prove that he is in possession of the property and there is an illegal interference from the defendants.

9.02.To prove the possession of the plaintiff he placed reliance on the original ownership of the property and it is with his father and after demise of his father his sister filed suit in O.S.No.186 of 1979 on the file of learned

Subordinate Court at Karimnagar for partition which is ended in a compromise and the suit schedule property was allotted to his share and that he has been continuing in possession having succeeded his father and in pursuance of the compromise decree. It is true as seen from the Ex A-1 certified copy of final decree in the said suit filed by his sister, the suit schedule property is found allotted to him. It is further true that he filed pattedar passbook and title deed passbook marked in Ex A-2 and A-3 to show that the suit schedule property is recorded in his name. Though Ex A-2 and

Ex A-3 pattedar passbook and title deed passbook discloses the suit schedule property is entered therein, as rightly contended by the learned counsel for the respondents and as rightly observed by the learned trial court, the suit schedule property is entered therein as the last entry but there is no mention as to when the said entry was made therein. The plaintiff as PW-1 admitted in his cross examination that he got entered the suit schedule property in his 9FAIR pattedar and title deed passbooks after the compromise decree in

O.S.No.186 of 1979 was passed and it was after two years or three years of

1985. Again he stated that he got entered the suit schedule survey number in his pass books Ex A-2 and Ex A-3 in the year 2003. The compromise decree in the suit filed for partition by his sister is dated 14-11-1985 thus for nearly about 18 years and it is may be just before filing of this suit he got entered the suit schedule land in his pattedar and title deed passbooks.

Even otherwise it may be noted that the pattedar and title deed passbooks would not disclose possession but only title. In fact, the defendant No.4 also filed her pattedar and title deed passbooks marked in Ex B-1 and Ex B-2 wherein the total extent of Ac.2-26 guntas bearing Sy.No. 1331/3 is found included in her name as pattedar. The said entry made in Ex B-1 and Ex B-2 in favour of the defendant No.4 is also found noted that the said entry is made in the pursuance of the proceedings bearing Sy.No. B1/249/002.

According to the defendant the said proceedings are on validation of the simple sale deed obtained by the defendant No.4 from the father of the plaintiff.

9.03.As rightly contended by the learned counsel for the respondents the plaintiff/appellant in the suit filed by his sister for partition in O.S.No.186 of 1979, took a plea in his written statement that the suit survey number and some other survey numbers are wrongly included in the suit schedule therein and that they are not available for partition. Though the said suggestion given is denied by the PW-1 the defendants produced the written statement filed by the plaintiff in the said suit of his sister and marked it without objection in Ex B-15. It is found pleaded therein (Ex B-15) that item No.3,6 8 and 11 to 13 shown in the plaint schedule – A do not belong to the deceased

S. Bhumaiah and therefore they did not belong to the family of the parties 10FAIR and they have been wrongly included in plaint schedule – A. It is true that the said written statement filed and got marked during the course of evidence of defendants in this suit, was not shown to the PW-1 and confronted with the said plea in this suit as the same is not noted in the deposition of PW-1. But here it may be noted that when the said plea was taken by the defendants and suggested to PW-1, who denied that he had taken such a plea, ought to have produced the certified copy of written statement filed in O.S.No.186 of 1979 and shown that he had not taken such plea. He did not do so and it may be because that if he produces the same it would be running against his own case.

9.04.The plaintiff produced Ex A-4 pahani for the year 1989-90 to show that he is in possession of the plaint schedule property of Ac.1-13 guntas and his sister by name D. Laxmi Bai is in possession of 0-27 guntas and his nephew by name R. Venkatesham is in possession of 0-26 guntas and thus totalling Ac.2.26 guntas bearing suit schedule survey number 1331/3.

This is the only pahani which he produced to show that his name along with his sister and nephew are entered as pattedar and possessors of the land bearing Sy.No. 1331/3 and it is as per the compromise decree in the suit for partition filed by his another sister. The other documents produced by him marked in Ex A-5 to Ex A-9 are land revenue receipts. They are not proof for possession of the property. On the otherhand, the defendants produced

Rythu Passbook marked in Ex B-3 in the name of the defendant No.4 wherein the suit schedule property and another extent of Ac. 1-13 guntas thus totalling Ac.2-26 guntas are found recorded in her name and the same is found verified by the Mandal Revenue Officer by 20-11-1985 with reference to the Record of Rights. Ex B-6 Pahani for the year 1974-75 indicates that father of the plaintiff is the pattedar for Ac. 2-26 guntas in the suit schedule 11FAIR survey number but Edla Balaiah is actually cultivating the said land. Edla

Balaiah is none otherthan father of the defendant No.1. In Ex B-7 pahani for the year 1975-76 the same is found recorded as in Ex B-6. Ex B-10 is pahani for the year 1979-80 wherein the name of defendant No.4 is found recorded as possessor and that pattedar is S. Bhumaiah, the father of the plaintiff. Ex

B-11 is pahani for the year 1993-94 wherein the name of the plaintiff’s nephew R. Venkatesham and one D. Laxmi Narayana (may be the husband of

D. Laxmi Bai) are found recorded as pattedars. But, in the possessor column the name of the defendant No.4 is only found noted. Ex B-12 pahani for the year 1996-97 also found noted the name of defendant No.4 as possessor for

Ac. 2-26 guntas bearing Sy.No.1331/3 and the plaintiff, his nephew and his sister names are noted under the column of pattedar. In Ex B-13 pahani for the year 1998-99 the name of plaintiff, his nephew and sister are found noted as pattedars whereas the name of the D-1 herein is found noted as possessors of the entire land in the said survey number 1331/3 and further it is found noted as their possession was under simple sale deed. Ex B-8 pahani for the year 1977-78, Ex B-9 pahani for the year 1978-79 also discloses that the father of the plaintiff as the pattedars and father of the defendant No.1 is actually cultivating the said land is found recorded. Ex B- 18 pahani and Ex B-19 pahani for the year 2002-03 and also Ex B-20 pahani for the year 2003-04 discloses that the defendant No.4 is in possession of the entire suit schedule survey number for an extent of Ac. 2-26 guntas. Further, the defendants produced Ex B-21 certified copy of will said to be executed by the father of the plaintiff in the year 1974 bequeathing his properties in favour of the children wherein the suit schedule survey number is not finding place. Though this gift deed is produced during the course of evidence by the defendants it appears that no objection is taken by the plaintiff, since no such objection is found recorded in the deposition and on the exhibit marked 12FAIR on the document. There is no suggestion at all made that no such will was executed by the father of the plaintiff. Thus non-indication or mention of the suit schedule survey number therein also strengthens the case of the defendants that the suit schedule property was alienated and thus was not available to bequeath in favour of any one of the children.

9.05.Thus on perusal of over all evidence of both oral and documentary it is found clear that the defendant No.4 is in possession of the suit schedule property and it is being cultivated by her through her son in law the defendant No.1 or by the father of the defendant No.1.

9.06.Though one of the contentions raised for the defendants is that the plaintiff failed to explain as to who is in possession of the remaining Ac.

1-13 guntas of land bearing Sy.No. 1331/3 the suit schedule survey number as he claimed possession only for Ac. 1-13 guntas therein, the same is found fell to the share of R. Venkatesham the nephew of the plaintiff and his sister

D. Laxmi Bai as seen from the compromise decree passed in the partition suit filed by another sister of the plaintiff. But, there is no evidence to show that the said R. Venkatesham and D. Laxmi Bai are in possession of the other

Ac.1-13 guntas of land @ 0-26 guntas and 0-27 guntas respectively since none of the pahanies produced for the plaintiff and the defendants would show they are in possession of that remaining Ac. 1-13 guntas. Though the son of the D. Laxmi Bai is examined as PW-2 for the plaintiff and deposed that his mother got 0-27 guntas of land in the partition and that she is in possession, no documentary proof is produced.

9.07.Thus for all these reasons this court is of the clear view that the plaintiff failed to prove his lawful possession to the suit schedule property much less as on the date of filing of the suit. Accordingly, this point is 13FAIR answered against the plaintiff.

10.00.POINT NO.2:-

The title of the plaintiff for the suit schedule property is foundunder cloud, even before filing of the suit. Because he admits in his cross examination that he gave statement when the name of the defendant

No.4 was appeared in the pahani in the possessorycolumn for the year 2000- 01 for which the defendant No.4 filed an application for rectification and on that an enquiry was initiated and the same is pending. He stated that he got included the suit schedule survey number in the year 2003 in his passbook and title deed. That means before filing of the suit itself, the title of the schedule property is brought under cloud. Therefore, the plaintiff ought to have filed the suit for declaration of title instead of simple one for permanent injunction. It appears that the plaintiff now realized the mistake and so after filing of this appeal, he moved an application in I.A.No.423 of 2014 under

Order 23 Rule 1 (3) of C.P.C., seeking permission to withdraw the original suit with liberty to file fresh suit for declaration of title. It is dismissed.

Therefore, this Court holds that the suit for injunction simplicitor is not maintainable.

11.00POINT NO.3:-

The plaintiff to get decree for permanent injunction shall not only approach the Court with clean hands, but also he must prove the cause of action. The grant of permanent injunction is equitable relief. In view of the answering points No.1 and 2 against the plaintiffs and further he did not approach the Court with clean hands and he failed to prove by examining any witness about the cause of action that defendants tried to interfere with his possession, he is not entitled for permanent injunction. Accordingly, this point is answered against the plaintiff.

14FAIR 12.00.POINT NO.4:-

The learned trial Court discussed the entire evidence brought on to record and arrived to the same findings which this Court has arrived at and so it did not commit any error in the passing the impugned judgment.

Hence, no interference is required with the judgment of the learned trial

Court. Accordingly, this point is answered.

13.00.POINT NO.5:-

In view of the answering points No.1 to 4 against the plaintiff/appellant herein this court holds that the appeal fails and accordingly this appeal is dismissed by confirming the judgment and decree passed by the learned trial Court. The appellant is directed to pay the costs in this appeal.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the open Court on this the 17th day of December, 2018.

Prl. District Judge, Karimnagar, F.A.C., I Additional District Judge, Karimnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

- None -

EXHIBITS MARKED

- Nil -

Prl. District Judge, Karimnagar, F.A.C., I Additional District Judge, Karimnagar.

FAIR

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE

KARIMNAGAR

PRESENT : SRI A.V. PARDHASARADHI ,

Prl. District Judge, K a r i m n a g a r.

ORIGINAL SUIT NO. 127 OF 2014

Friday, the 23 rdday of November, 2018

Between :-

Gottimukkula Rajashekar Reddy S/o. Krishna Reddy, Age : 44 years, Occupation : Business, R/o. Flat No.603, Sai Chaitanya Apartments, Chaitanyapuri Colony, Karimnagar Town.

...Plaintiff.

And

Srimalla Susheela W/o. Narsaiah, Age : 68 years, Occupation : Household, R/o. Venkataiapalli Village of Gangdhara Mandal of Karimnagar District. …Defendant.

This suit coming before me on 09.11.2018 for final hearing in the presence of Sri P. Sajan Kumar, Advocate for the plaintiff and Sri E. Raja Reddy and Sri A. Sridhar, Advocates for the defendant, having been heard and having stood over for consideration till this day, the Court delivered the following: -

- : J U D G M E N T :-

This suit is filed for specific performance of agreement of sale, dt.24.03.2012 against the sole defendant for the plaint schedule property, which is an extent of 486.1 Sq. Yds., land bearing Sy.No.60, situated at Rekurthi Village of Karimnagar Mandal and District.

2.00.The case of the plaintiff, in brief, is that the defendant is the owner of the suit schedule property. The defendant being in need of money approached the plaintiff with a proposal to sell the suit schedule property, and that he agreed to purchase it. The sale consideration agreed between them is Rs.1,25,00,000/-. On 24.03.2012, the plaintiff paid earnest money of Rs.60,00,000/- and obtained agreement of sale

O.S.No. 127 of 2014

2 on the very same day. Thereafter, before he making payment of second installment, he came to know that the defendant is making construction in the suit schedule property and immediately he approached her and requested her to stop the construction, but he was informed that she is raising only temporary construction. Thereafter on 07.06.2012, he paid

Rs.40,00,000/- with an intention to get execute registered sale deed within a month. Thus, thereafter he has been always ready and willing to pay balance sale consideration and to obtain registered sale deed. Therefore, he several times requested the defendant to stop the construction and execute registered sale deed by receiving the balance sale consideration, but the defendant did not stop the construction and receive the balance sale consideration and execute registered sale deed.

He came to know that the suit schedule property is given to one

Radhakrishna on lease for the purpose of running business in the name and style of Devish Motors. The said fact was suppressed by the defendant at the time of entering into agreement of sale. In fact, she was making construction for the purpose of Hero Honda motorcycle showroom. Then he got issued legal notice on 15.07.2014 to the defendant to receive the balance sale consideration and execute the registered sale deed within (15) days, buit it was refused by the defendant and hence the suit.

3.00.The defendant filed her written statement denying the plaint allegations except her ownership to the suit schedule property. She denied that she executed agreement of sale, and that the thumb impression found therein is that of her. She denied that she agreed to sell the suit schedule property and received Rs.60,00,000/- on

O.S.No. 127 of 2014

3 24.03.2012 and Rs.40,00,000/- on 07.06.2012 from the plaintiff. It is pleaded by her that one Radhakrishna Murthy is her lessee, who is running Hero Honda showroom (Devish Motors), and that the plaintiff is a partner of the same and when disputes arose between them, the plaintiff obtained her thumb impression and signature of her husband in blank stamp papers assuring that the plaintiff and elders would solve the dispute and it is in N.J. Stamp paper worth Rs.100/-, dt.06.07.2012, which is now created as a receipt. It is further pleaded that she raised construction of building in Sy. No.61 which was given on lease for Hero

Honda showroom for which authorized dealer was Radhakrishna Murthy

and it was in the month of November, 2011 and after the lease agreement, she obtained permission from Grampanchayath, Rekurthy

Village and started construction in Sy. No.61, and that she never entered into agreement of sale with the plaintiff and so the question of concealing the lease would not arise and it is false that the plaintiff got issued legal notice and she refused the same, and that there is no cause of action and hence the suit may be dismissed.

4.00.Basing on the above pleadings, the following issues are framed :-

1. Whether plaintiff agreed to purchase the suit property from the defendant for a sale consideration of

Rs.1,25,00,000/- ?

2. Whether the plaintiff paid an amount of Rs.60.00 lakhs to defendant towards part of sale consideration and entered into an agreement of sale on 24.03.2012 and also paid an amount of Rs.40.00 lakhs on 07.06.2012 towards second installment of sale consideration ?

O.S.No. 127 of 2014

4

3. Whether plaintiff failed to perform his part of contract as per the agreement of sale, dt.24.03.2012 entered into between him and defendant ?

4. Whether the plaintiff is entitled for the relief of specific performance, as prayed for ?

5. To what relief ?

5.00.During the course of trial, the plaintiff examined himself as

PW.1 and one witness on his behalf as PW.2 and he got marked Exs.A-1 to A-6, the original agreement of sale, receipt, original sale deed dt.26.08.1996 in the name of the defendant, office copy of legal notice, registered postal receipt and refused registered cover and closed his side evidence.

5.01.For the defendant, she examined herself as DW.1 and two witnesses on her behalf as DW.2 and DW.3 and got marked attested copy of registered sale deed in Ex.B-1, permission for construction of the building issued by Grampanchayath in Ex.B-2 and closed her side evidence.

6.00.Heard both side and perused the record consisting of both oral and documentary evidence.

7.00.Now the points that arise for consideration are of each issue.

8.00.To answer issues No.1 and 2 that whether the plaintiff agreed to purchase the suit schedule property and paid Rs.60.00 lakhs on 24.03.2012 and Rs.40.00 lakhs on 07.06.2012, he must prove that there was contract between them and it was reduced into writing as an

O.S.No. 127 of 2014

5 agreement of sale. So, the plaintiff has to prove that the defendant executed agreement of sale, for sale of the suit schedule property on 24.03.2012; secondly he has to prove that the defendant failed to perform his part of contract, which is issue No.3, and that he is ever ready and willing to pay the balance sale consideration and obtain registered sale deed, and that the equities are in his favour so to get specific performance in his favour as in issue No.4.

9.00.Issues No.1 and 2 :-

To prove Ex.A-1 agreement of sale by the plaintiff, he entered into witness box and also brought PW.2 to depose the same. PW.1 deposed as in his plaint that the defendant approached him with a proposal to sell the property since she was in need of money and he agreed to purchase the same and subsequently they entered into agreement of sale for Rs.1,25,00,000/- and paid Rs.60.00 lakhs on 24.03.2012 and obtained Ex.A-1 in the presence of witnesses. He did not name the witnesses who were present at the time of execution of

Ex.A-1 and payment of Rs.60.00 lakhs. The plaintiff wanted to strengthen his evidence by producing Ex.A-2 receipt under which he paid

Rs.40.00 lakhs on 07.06.2012. Though Ex.A-2 is also found signed by two witnesses, he did not name them and did not produce one at least.

In fact, it is the case of the defendant that she did not at all execute

Ex.A-1, and that the thumb impression found inEx.A-1 is not that of her.

At the instance of the defendant, Ex.A-1 agreement of sale was sent for opinion of fingerprint expert inspite of opposing the same by the plaintiff.

It is not known at then why the plaintiff opposed if the thumb impression in Ex.A-1 is that of the defendant. However, the expert to whom it was sent returned the document stating that the thumb impression found

O.S.No. 127 of 2014

6 therein is not fit for comparison because it is faint/blurred/smudged and thus not clear and for want of clear ridge characteristics. The learned counsel for the defendant placed reliance on the judgment of Hon’ble

Supreme Court in Thiruvengada Pillai Vs Navaneethammal and another (AIR 2008 SC 1541) wherein it is held that where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. So, this Court on its own cannot take aid of Sec.73 of

Evidence Act and take up the job of comparison when an expert gave opinion that the thumb impression found in Ex.A-1 is not fit for comparison. The defendant did not deny her thumb impression in Ex.A- 2 receipt, but her case is that she put her thumb impression in Ex.A-2 in blank stamp paper and it is in connection of some dispute she had with

A. Radhakrishna Murthy, her lessee, who was running Davish Motors, with whom the plaintiff is having partnership in the business.

9.01.If the plaintiff could prove that Ex.A-1 is genuine, then Ex.A.2 could be looked into to prove that an amount of Rs.40.00 lakhs was paid therein as second installment. If the plaintiff could not establish Ex.A-1 on its own and wanted to take support of Ex.A-2 and further Ex.A-3 title deeds of the suit schedule property said to be given by the defendant to him, then also the Court can come to a conclusion that Ex.A-1 must be true and genuine.

9.02.In this case, it may be noted that the defendant is an illiterate and old aged woman of about more than 65 years by the date of the alleged agreement of sale, since she has shown her age as 65 years

O.S.No. 127 of 2014

7 in the year 2016 when filed the suit, and that she is resident of a village.

It is not as if the defendant is alone but she has a son and her husband is alive. If that is so, it is not at all believable that she alone approached the plaintiff and offered to sell the suit schedule property and it is for

Rs.1,25,00,000/-. Nowhere in the plaint or in the evidence, the plaintiff as PW.1 referred to the presence of the husband and son of the defendant along with her at the time of defendant said to have agreed to sell the suit schedule property and settled the sale price and received part of the sale consideration or earnest money of Rs.60.00 lakhs at one time and part of the balance sale consideration at another time.

9.03.PW.1 stated in his cross-examination that he knows the defendant and her family members from the year 2012. He is resident of Karimnagar, whereas the defendant is the resident of Venkataiahpalli village. If he knows the defendant from the year 2012, it is strange that in the first three months of the year 2012, the defendant approached him and offered to sell the suit schedule property. He did not bring onto record the alleged financial necessity of the defendant to sell away the suit schedule property which he must have elicited before bargaining with the defendant. It is not known as to what made the defendant to approach him with an offer to sell the suit schedule property on her own.

PW.1 stated that the alleged payments made by him of Rs.60.00 lakhs and Rs.40.00 lakhs were not disclosed by him in his income tax returns.

The plaintiff pleaded and deposed in his evidence in-chief that after he entered into Ex.A-1 agreement of sale and paid Rs.60.00 lakhs and

before making payment of Rs.40.00 lakhs the second installment on

07.06.2012, he came to know that the defendant is raising construction in the suit schedule property and then he approached her and requested

O.S.No. 127 of 2014

8 her to stop the construction, and that the defendant replied that she is only making temporary construction. He deposed that then he paid

Rs.40.00 lakhs on 07.06.2012. He further deposed that several times he requested the defendant to stop the construction and execute sale deed, and that the defendant did not come forward, and that he came to know that the suit schedule property was given to one Radhakrishna on lease basis to run a business in the name and style of Devish Motors and the said fact was suppressed by her at the time of entering into agreement of sale. It may be noted that if true he obtained Ex.A-1 agreement of sale on 24.03.2012 and before making payment of

Rs.40.00 lakhs on 07.06.2012 he came to know that the defendant is making some construction in the suit schedule property, no ordinary prudent person would pay the balance, may be in part but it is of

Rs.40.00 lakhs, which cannot be said a small amount and allow the defendant to make construction of even temporary in nature. Even when the defendant did not stop on receiving second installment also, it is strange for the plaintiff to wait for another two years and file the suit stating that the defendant did not stop construction, and that he came to know that the said property was given on lease to a third party. He did not make it clear as to when he came to know about the alleged lease.

9.04.PW.2, one of the witnesses to Ex.A-1, whose name was never referred in the plaint or in the evidence by the plaintiff as PW.1, is to the effect that he is friend of the plaintiff and went along with the plaintiff to the house of the defendant, and that the plaintiff paid Rs.60.00 lakhs and obtained agreement of sale on24.03.2012. He deposed that he along with T.V. Ramana Rao stood as attesting witness to the document.

O.S.No. 127 of 2014

9

According to his evidence, the defendant, by the time he reached along with the plaintiff, her house, the defendant was already having wither the agreement of sale which is a typed one. It is strange that an illiterate lady got typed the agreement of sale before hand with all details, much less about payment of Rs.60.00 lakhs on that day and balance of

Rs.40.00 lakhs to be paid on or before 10.06.2012 and the remaining balance of Rs.25.00 lakhs by the date of registration of the sale deed, which are the recitals found in Ex.A-1. Ex.A-1 is found typewritten in a paper embossed with stamp of Rs.100/-, which is found noted that it was sold to the defendant on 24.03.2012 by the stamp vendor. PW.2 in the cross-examination stated that he went to the house of the defendant on receiving phone call from the plaintiff who already went there, and that he received the phone call between 11.00 A.M. and 12.00 Noon. Again he deposed that between 11.00 A.M. and 12.00 Noon, he went to the house of the defendant and transaction was completed in his presence in about two hours. If by 11.00 A.M., PW.2 went to the house of the defendant and the defendant was already with the stamp paper with the contents typed therein, it is not known as to when on that very same day, the defendant purchased the stamp paper. Her residence is at

Venkataiahpally Village and not at Karimnagar, which is a town where only the stamp vendors will be available. PW.2 further stated in the cross-examination that at the time of Ex.A-1 agreement of sale, only the plaintiff and the defendant were present. Thus, he did not depose about the presence of other family members of the defendant and the other witnesses whose name is found noted in Ex.A-1 and it appears to be one

T.V. Ramana Rao. It is not known when the said T.V. Ramana Rao signed in Ex.A-1 as witness.

O.S.No. 127 of 2014

1 9.05.In view of this evidence, this Court is unable to believe the evidence of PW.2 that he witnessed the execution of Ex.A-1 agreement of sale by the defendant.

9.06.It is true, the defendant denied her thumb impression found in Ex.A-2 receipt, dt.07.06.2012, but her case is that her property was given on lease to one A. Radhakrishna Murthy, friend of the plaintiff and owner of Hero Honda showroom (Devish Motors) who advanced some money to her son and taken her land on lease for running Hero Honda

Motors Showroom. She deposed that her husband is alive and she is having four sons and daughters, who are aged about 40 years, and that she is 71 years old, and that she never sold the suit schedule property, much less to the plaintiff. She got marked attested lease deed, dt.24.11.2001 in Ex.B-1. The said registered lease deed is found executed between the defendant and A. Radhakrishna Murthy as lesser and lessee in respect of open plot bearing Sy.No.61, situated at Rekurthy

Grampanchayath area. Though the learned counsel for the defendant tried to contend that the said lease deed is witnessed by the plaintiff as signatory as a witness and he is none else than the friend of the said A.

Radhakrishna Murthy, the plaintiff denied the same. The attestation or signature as a witness in Ex.B-1 lease deed is not put to PW.1 in his cross-examination. The defendant though in her cross-examination denied her thumb impression and also of her husband’s signature in

Ex.A-2, it is not her case from the beginning. Further, her case is that her thumb impression was obtained therein when the said document was blank and it is with regard to settlement of a dispute between her lessee and herself.

O.S.No. 127 of 2014

11 9.07.DW.2, a neighbour of the defendant, deposed that the original sale deed relating to the suit schedule property was in the custody of A. Radhakrishna Murthy, the lessee of open plot of the defendant taken for construction of a showroom by name Hero Motors, and that the plaintiff as well as the said A. Radhakrishna Murthy are friends, and that he along with them all tried to settle the dispute that was raised with regard to rents of the lease premises and then the blank

N.J. stamp papers were kept with the said Radhakrishna Murthy and also the original sale deed of the suit schedule property and it was for obtaining hand loan from Radhakrishna Murthy by the son of the defendant, and that he signed in the registered lease deed along with the plaintiff as second witness. DW.2 in the cross-examination stated that he was present at the time of execution of lease deed and on that day of lease, A. Radhakrishna Murthy paid Rs.5.00 lakhs and agreed to pay

Rs.80,000/- towards rent and it is for five years. He also stated that the defendant handed over original sale deed standing in her name, which is

Ex.A-3, to the said Radhakrishna Murthy. He denied the suggestion that what he stated that Rs.5.00 lakhs was paid by Radhakrishna Murthy and agreed to pay rent @ Rs.80,000/- per month, and that the said

Radhakrishna Murthy received sale deed of the property, is all false. He denied the suggestion that the defendant entered into agreement of sale with the plaintiff and received Rs.60.00 lakhs and also handed over Ex.A- 3 sale deed to the plaintiff on the very same day. But, it may be noted, the plaintiff did not at all state that on the date of execution of agreement of sale, the defendant gave Ex.A-3 sale deed to him. Even

PW.2 did not depose so. It is simply suggested to DW.2 that there is no friendship between the plaintiff and Radhakrishna Murthy and in fact that they have no acquaintance with each other, but he denied the same.

O.S.No. 127 of 2014

1 9.08.DW.3, who is the son of the defendant, deposed while denying the execution of Ex.A-1 by his mother and also receiving of

Rs.40.00 lakhs under Ex.A-2, that his mother’s signature was obtained along with her father’s signature in Ex.A-2 in blank N.J. stamp paper and it is with regard to settlement of rents dispute between A. Radhakrishna

Murthy, lessee of Karimnagar Motors Showroom (Devish Motors) with his parents and himself. He further deposed that on receiving some amount from A. Radhakrishna Murthy by him, the original sale deed of the suit schedule property was given to him and thus it was in the custody of

Radhakrishna Murthy, the friend of the plaintiff. He further deposed that at present the said Radhakrishna Murthy is not available in India as he left for America. The plaintiff cross-examined DW.1 but nothing is elicited in his favour.

9.09.Thus, from the entire evidence brought on to record, this

Court finds no reason to disbelieve the evidence of DW.2, who is not shown to be interested in the defendant and having any animosity against the plaintiff to speak against the plaintiff. Further, as already discussed, the execution of Ex.A-1 agreement of sale by the defendant in favour of the plaintiff is highly doubtful. The preponderance of probabilities is not at all shown in favour of the plaintiff. Merely by issuing a legal notice marked in Ex.A-4 to the defendant, which was not served on the defendant but said to be refused by her, which endorsement of refusal found noted with the red ink in the returned cover Ex.A-6, it is found signed by the postman, this Court is of the view that the plaintiff failed to prove execution of Ex.A-1 agreement of sale by the defendant and as such, the said Ex.A-1 is true and genuine

O.S.No. 127 of 2014

1 document. Therefore, these two issues are answered against the plaintiff.

10.00.Issue No.3 :-

The question of the plaintiff’s failure in performing his part of contract would not arise since the case of the defendant is that Ex.A1

Agreement of sale was not at all executed by her. Further, in view of answering issues No.1 and 2 against the plaintiff, this issue would not arise.

11.00.Issues No.4 and 5 :-

In view of holding issues No.1 and 2 that Ex.A-1 agreement of sale is not at all proved was executed by the defendant and so similarly the payment said to be made by the plaintiff to the defendant, much less under the said agreement of sale, the plaintiff is not entitled for any relief, much less specific performance. Therefore, the plaintiff is not entitled for specific performance or any other relief.

12.00.Accordingly, the suit is dismissed with costs.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open Court, on this the 23rd day of November, 2018.

Prl. District Judge, Karimnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PLAINTIFF: FOR THE DEFENDANT:

PW.1 : Gottimukkula Rajashekhar Reddy. DW.1 : Srimalla Susheela. PW.2 : D. Venkateshwar Rao. DW.2 : Vemulawada Dasharatham. DW.3 : Srimalla Megharaj.

O.S.No. 127 of 2014

1

EXHIBITS MARKED

FOR THE PLAINTIFF: Ex.A1Dt.24.03.2012Original agreement of sale.

Ex.A2Dt.07.06.2012Receipt for Rs.40.00 lakhs.

Ex.A3Dt.26.08.1996Original sale deed bearing document No.5282/1996.

Ex.A4Dt.15.07.2014Office copy of Legal Notice.

Ex.A5Dt.15.07.2014Registered post postal receipt.

Ex.A6Dt.--Refused registered postal cover.

FOR THE DEFENDANT:

Ex.B-1 : dt.24.12.2011 Attested copy of Regd. Lease Deed.

Ex.B-2 : dt.23.12.2011 Building Permission issued by Grampanchayath, Rekurthi.

Prl. District Judge, Karimnagar.

-:-

FAIR

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE

KARIMNAGAR

PRESENT: SRI A.V. PARDHASARADHI, Prl. District Judge, K a r i m n a g a r.

APPEAL SUIT NO.101 OF 2016

And

I.A. No. 1791 OF 2016

And

I.A. No. 1792 OF 2016

Monday, the 19 thday of November, 2018

Between :-

Sama Kishan S/o. Late Narsaiah, Aged 44 years, Occupation : Teacher, R/o. H.No.1-20-1458/B, Bhagyanagar locality of Karimnagar proper.

...Appellant / Plaintiff

And

1.Mandala Srinivas Reddy S/o. Narayana Reddy, Aged 41 years, Occupation : Teacher, R/o. Kothapalli (Havali) Village of Karimnagar Mandal and District.

2.Mandala Mahender Reddy S/o. Narayana Reddy, Aged 51 years, R/o. H.No.3-7-891, Vavilalapalli locality of Karimnagar proper. …Respondents / Defendants (On appeal against the Judgment and decree passed by the learned II-Addl. Junior Civil Judge, Karimnagar in O.S.No.318 of 2010, dt.30.08.2016)

Between : -

Sama Kishan S/o. Late Narsaiah, Aged 44 years, Occupation : Teacher, R/o. H.No.1-20-1458/B, Bhagyanagar locality of Karimnagar proper.

...Plaintiff.

And

1.Mandala Srinivas Reddy S/o. Narayana Reddy, Aged 41 years, Occupation : Teacher, R/o. Kothapalli (Havali) Village of Karimnagar Mandal and District.

2.Mandala Mahender Reddy S/o. Narayana Reddy, Aged 51 years, R/o. H.No.3-7-891, Vavilalapalli locality of Karimnagar proper. …Defendants.

I.A. No.1791 of 2016 :-

Between : -

Sama Kishan S/o. Late Narsaiah, Aged 44 years, Occupation : Teacher, R/o. H.No.2-10-1458/B, Bhagyanagar, Karimnagar Town.

...Petitioner / Appellant / Plaintiff.

And

1.Mandala Srinivas Reddy S/o. Narayana Reddy, Aged 41 years, Occupation : Teacher, R/o. Kothapalli (H) Village of Karimnagar Mandal and District.

2.Mandala Mahender Reddy S/o. Narayana Reddy, Aged about 51 years, R/o. H.No.3-7-891, Vavilalapalli, Karimnagar Town.

…Respondents / Respondents / Defendants.

I.A. No.1792 of 2016 :-

Between : -

Sama Kishan S/o. Late Narsaiah, Aged 44 years, Occupation : Teacher, R/o. H.No.2-10-1458/B, Bhagyanagar, Karimnagar Town.

...Petitioner / Appellant / Plaintiff.

And

1.Mandala Srinivas Reddy S/o. Narayana Reddy, Aged 41 years, Occupation : Teacher, R/o. Kothapalli (H) Village of Karimnagar Mandal and District.

2.Mandala Mahender Reddy S/o. Narayana Reddy, Aged about 51 years, R/o. H.No.3-7-891, Vavilalapalli, Karimnagar Town.

…Respondents / Respondents / Defendants.

--

This appeal coming before me on 08.10.2018 for hearing in the presence of Sri E. Madhusudhan Rao, Advocate for the appellant and Sri P. Lachi Reddy, Advocate for the respondents, and having been heard and having stood over for consideration till this day, the Court delivered the following :-

- : J U D G M E N T :-

The unsuccessful plaintiff in O.S. No.318 of 2010 on the file of learned II-Addl. Junior Civil Judge, Karimnagar preferred this appeal being aggrieved by the judgment and decree, dt.30.08.2016 whereby and whereunder the suit of the plaintiff for perpetual injunction is dismissed. The respondents No.1 and 2 herein are defendants in the said suit.

2.00.For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the learned trial Court.

3.00.The plaintiff filed the suit alleging that one Sri Davu Ram

Reddy was the owner of plaint schedule property of Ac.0-27 gts., bearing

Sy.No.80/B, situated at Kothapalli (Haveli) Village of Karimnagar Mandal and District. Sri Thallam Sriramulu purchased the same from Davu

Ram Reddy under a registered sale deed, dt.21.01.1994. From the said

Thallam Sriramulu, he, the plaintiff, purchased the same under registered sale deed, dt.24.08.2001 and from then he is in possession and enjoyment of the same and his name is also recorded in the pahani pathrikas. It is further pleaded that he obtained permission from

Grampanchayath, Kothapalli on 30.09.2003 and constructed a compound wall around the suit schedule land and a shed therein apart from digging a bore well. While it is so, it is pleaded that the defendants who are strangers to the suit schedule land and having no right over the same are interfering with his possession with a view to occupy the same and the cause of action for him to file the suit arose on 25.07.2010. Therefore, the suit for perpetual injunction.

4.00.The defendant No.1 filed his written statement and the same is adopted by the defendant No.2 by filing memo.

4.01.It is the case of the defendants that Sri Davu Ram Reddy was the original owner of land to an extent of Ac.1-10 gts., bearing Sy.

No.80/B, situated at Kothapalli Village. The Government acquired Ac.0- 25 gts., out of Ac.1-10 gts., of land of said Davu Ram Reddy, which was within the Sy.No.80 and formed Ayacut road from Kothapalli to Ranipur and paid compensation to him by passing award on 16.03.1992. Thus,

Sri Davu Ram Reddy was left with only Ac.0-25 gts., of land in

Sy.No.80/B, but he sold the said land in the year 1994 to Sri Thallam

Sriramulu but mentioning the extent of land sold as Ac.0-32 gts., instead of Ac.0-25 gts. Further, the said Sri Davu Ram Reddy sold another

Ac.0-05 gts., of land to one Y. Narender Rao under another registered sale deed, dt.27.11.2000, who is in possession of the same at present.

In fact, the land sold to Y. Narender Rao is part of the land sold to Sri

Thallam Sriramulu. Thus, Sri Thallam Sriramulu, vendor of the plaintiff, was left only with Ac.0-20 gts., of land which he sold to the plaintiff but falsely executed sale deed for Ac.0-27 gts., and so, the plaintiff is in possession only of Ac.0-20 gts., of land out of suit schedule Ac.0-27 gts., of land. The plaintiff with a view to occupy Ac.0-06 ½ gts., of land bearing Sy. No.80/A, which is on northern side, belongs to Bethi Venkat

Reddy, the grandfather of the defendants, filed this suit. They gave boundaries of Ac.0-06 ½ gts., of land of Bethi Venkat Reddy bearing Sy.

No.80/A and the said Bethi Venkat Reddy is not made party to the suit and so, the suit is not maintainable. It is also pleaded that there is no cause of action to file this suit and hence the suit may be dismissed.

5.00.Basing on the above pleadings, the learned trial Court framed the following issues :-

1. Whether the plaintiff is in possession and enjoyment of Ac.0-27gts., of the land in suit survey number ?

2. Whether the suit is bad for non-joinder of parties ?

3. Whether the plaintiff is entitled for the relief of perpetual injunction as sought for ?

4. To what relief ?

6.00.During the course of trial, the plaintiff examined himself as

PW.1 and one witness on his behalf as PW.2 and he got marked Exs.A-1 to A-15 and closed his side evidence.

6.01.For the defendants, the defendant No.1 is examined as DW.1 and two witnesses on their behalf as DW.2 and DW.3 and got marked

Exs.B-1 to B-14 and closed their side evidence.

7.00.The learned trial Court, after considering the entire evidence brought on to record of both oral and documentary, held that the defendants could prove that Ac.0-25 gts., of land of Sri Davu Ram Reddy was acquired by the Government, and that the plaintiff failed to prove that Sri Davu Ram Reddy got Ac.0-32 gts., of land so to sell it to Sri

Thallam Sriramulu from whom the plaintiff said to have purchased

Ac.0-27 gts the plaint schedule property and thus, the plaintiff failed to prove the semblance of his title and possession over the suit schedule property and hence dismissed the suit.

8.00.The learned counsel for the plaintiff/appellant herein contended that the revenue record clearly reveals apart from registered sale deed in favour of the plaintiff that he purchased Ac.0-27 gts., of land and he is in possession of the same, and that the leaned trial Court did not appreciate the evidence brought on to record properly. It is also contended by filing application in I.A. No.1791/2016 in this appeal that if an advocate-commissioner is appointed to measure the suit schedule land with the help of Technical Assistant, the doubt in the mind of the trial Court can be removed and the plaintiff would prove that the suit schedule property is of Ac.0-27 gts., is in possession of the plaintiff and so prayed to appoint an advocate-commissioner.

8.01.By filing another application in I.A. No.1792/2016, the learned counsel for the plaintiff/appellant herein contended that the case of the plaintiff that he constructed a compound wall and shed can be proved if the plaintiff is permitted to adduce additional evidence in this appeal and it is to produce original approved plan issued by Panchayath

Secretary, Grampanchayath, which was annexed to Ex.A-6 already filed in the learned trial Court, the receipt of fee paid towards construction fee which could not be produced during the course of trial in the learned trial

Court as the same was misplaced and was not traced. Thus, it is contended that the additional evidence, may be permitted, which is just and essential to decide the actual dispute between the parties, and that the judgment under appeal may be set aside and the appeal may be allowed.

9.00.The learned counsel for the defendants/respondents herein while supporting the impugned judgment contended that the learned trial

Court rightly appreciated the evidence available on record, and that the plaintiff/appellant failed to move the learned trial Court at appropriate time with the applications now sought for to be allowed to receive

additional evidence and to appoint advocate-commissioner, and that the

additional evidence, namely, approved plan, if received, the same would

not support of the case of the plaintiff and in fact, the said plan is self- made one and no proper reason is given for not filing the said document in the trial Court and so Rule 27 of Order 41 of CPC., cannot be invoked at this stage, and that it is only as an after-thought, the other petition for appointing advocate-commissioner is filed in this appeal and it is not a boundary dispute but is a matter of obtaining registered sale deed for excess land than what is actually available and so prayed to dismiss the petitions and the appeal.

10.00. Now the points that arise for determination in this appeal are :-

1. Whether the plaintiff/appellant is in lawful possession of the plaint schedule property of Ac.0-27 gts., by the date of filing of the suit ?

2. Whether the additional evidence to receive approved plan and appointment of advocate-commissioner, as prayed for in I.A. Nos.1791/2016 and 1792/2016 can be allowed and be read in this appeal ?

3. Whether the cause of action to file the suit is proved ?

4. Whether the learned trial Court committed error in dismissing the suit and so requires interference from this

Court ?

5. To what relief ?

11.00.POINT No.1 :-

It is not in dispute that the plaintiff obtained Ex.A-1 registered sale deed for Ac.0-27 gts., of land bearing Sy. No.80/ (B) from Sri Thallam Sriramulu, who in turn purchased from Sri Davu Ram

Reddy under registered sale deed, dt.21.01.1994 marked in Ex.A-2. In fact, the defendants also admit that one Davu Ram Reddy was the original owner of the suit schedule Sy. No.80/B and it is an extent of

Ac.1-10 gts., equivalent to 50 gts. According to the defendants, the

Government acquired Ac.0-25 gts., of land from out of said 50 gts., of land of Davu Ram Reddy under an award, dt.16.03.1992 by Proceedings

No.B/2771/1986. The plaintiff in his evidence in-chief as PW.1 did not deny that the total extent of property owned by Sri Davu Ram Reddy was not Ac.1-10 gts., equivalent to 50 guntas. In fact, PW.1 admitted about the acquisition of land of Sri Davu Ram Reddy by the government, but he deposed that the Government acquired only Ac.0-18 ½ gts., but not

Ac.0-25 gts., of land, as pleaded by the defendants. So, it is for the plaintiff to prove that the Government acquired only Ac.0-18 gts., but not

Ac.0-25 gts., of land since it is he that approached the Court seeking perpetual injunction and admitting part of the case of the defendants with regard to acquisition of land. However, the defendants since adduced evidence and produced Ex.B-1FormNo.7, i.e. Notice issued under Sec.9 (3) and10 of the Land Acquisition Act, which is marked inEx.B-1, the onus of proof loses its significance. As per Ex.B-1, it is seen that Ac.0-25 gts., of land of Sri Davu Ram Reddy was proposed to be acquired by the Government. The reference under Sec.18 of the L.A.

Act would arise after the acquisition proceedings are completed and after award is passed fixing compensation and if it is disputed by the owner of the property. Ex.B-2 makes it clear that Ac.0-25 gts., of land owned by

Sri Davu Ram Reddy bearing Sy. No.80 was acquired and he was awarded with compensation of Rs.15,845-65 Ps., and possession of it was also noted as was taken on 25.08.1986. Ex.B-3 is award proceedings of dated nil March, 1992. It is evident therefrom that an extent of Ac.0-29 gts., bearing Sy.No.80 was acquired by the

Government and compensation was fixed thereunder @ Rs.8,230/- per acre for the dry lands and Rs.20,000/- per acre for wet lands and also for other acquired lands. The reason to show Ac.0-29 gts., in Sy. No.80 in the award proceedings is; Ac.0-25 gts. of Davu Ram Reddy and another

Ac.0-04 gts., is of one Hanumandla Rajeshwari, as is evident from notice under Sec.9 (3) and 10 of the L.A. Act and marked in Ex.B-1, which are of the same Sy. No.80.

11.01.Thus, from Exs.B-1 to B-3, it is found clear that out of

Ac.1.10 gts., of total extent of land of Sri Davu Ram Reddy, Ac.0-25 gts., was acquired by the Government and road was formed. Therefore, what would remain with Davu Ram Reddy is only Ac.0-25 gts. If that is so,

Sri Davu Ram Reddy is left over only with Ac.0-25 gts., after acquisition of Ac.0-25 gts., out of Ac.1-10 gts., he cannot sell Ac.0-32 gts., to Sri

Thallam Sriramulu, the vendor of the plaintiff. Though Ex.A-2 registered sale deed in favour of Sri Thallam Sriramulu is found executed for

Ac.0-32 gts., he is not examined to prove that while taking delivery of the possession of the same, he got it measured and found Ac.0-32 gts., much less within the boundaries noted in his registered sale deed.

11.02.The plaintiff though not pleaded in his plaint but in his evidenced as PW.1 admitted the case of the defendants that one Sri Y.

Narender Rao obtained registered sale deed from Sri Davu Ram Reddy for 4 ¾ gts., of land out of Sy. No.80/B instead of 5 gts., as pleaded by the defendants. It is deposed by PW.1 in his evidence in-chief itself that

Davu Ram Reddy though has no land after selling his land to Thallam

Sriramulu, but Sri Y. Narender Rao played fraud upon Davu Ram Reddy and got executed sale deed. Thus, if the said 4 ¾ gts., or 5 gts., is deducted from Ac.0-25 gts., of land remained with Sri Davu Ram Reddy either before or after execution of sale deed in favour of Thallam

Sriramulu, the remaining land would be only Ac.0-20 gts., or Ac.0-20 ¼ gts. In the cross-examination, PW.1 admitted that one Y. Narender Rao is having 5 gts., of land and he is in possession of the same and he is southern side boundary owner to the suit schedule property. Therefore, the vendor of the plaintiff Sri Thallam Sriramulu cannot have more than

Ac.0-20 gts., of land so to convey the same to the plaintiff. Merely because the registered sale deed is found recited for Ac.0-27 gts. of land, in view of the admitted fact, the land that would be available on field is only Ac.0-20 gts., but not Ac.0-27 gts. Even the plaintiff did not depose in his evidence in-chief that at the time of purchase of the suit schedule land by him under Ex.A-1, he got it measured and found the extent within the boundaries given therein is Ac.0-27 gts. Ex.A-3 right of record prepared on 10.10.2002 by the M.R.O. is revealing that the name of the plaintiff is mutated for the land of Ac.0-27 gts., bearing Sy.

No.80/B since he purchased it from Thallam Sriramulu followed by pahanies and title deed passbook produced and marked in Exs.A-8 to A- 13 showing that Ac.0-27 gts., is in the enjoyment of the plaintiff.

However, the same would not confer title and actual possession of the property and they cannot be taken as proof. Ex.A-6 is permission proceedings issued by Grampanchayath, Kothapalli in favour of the plaintiff to construct shops and compound wall. It is not disclosing the extent of land in which plaintiff can construct.

11.03.Now the learned counsel for the plaintiff/appellant contends that the approved plan sought to be received as additional evidence discloses that it is in Ac.0-27 gts., of land and so the same may be received and further an advocate-commissioner may be appointed.

Therefore, it is necessary to answer point No.2 framed above with regard to additional evidence, the subject matter of I.A.No.1791 and 1792 of 2016.

11.04.POINT No.2 :-

The learned counsel for the plaintiff placed reliance on the judgment of Hon’ble Supreme Court in Union of India Vs K.V. Lakshman

Rao (AIR 2016 SC 3139). The Hon’ble Supreme Court observed in the said case filed for title, as it appears from the paragraph 5 of the judgment, that additional evidence sought to be adduced was found to be relevant to decide the issue of ownership of the parties over the land in dispute and so, for determining the rights of the parties, the documents sought to be produced by way of additional evidence ought to have been received by the High Court. The Hon’ble Supreme Court further found that the appellant therein could substantiate his case for his failure to produce the evidence which was sought to be produced in the appeal by explaining the delay. Further, in the same judgment, the

Hon’ble Supreme Court, though it was not prayed for, observed that the

speedy disposal of the suit, which was being remanded to the trial Court, that the trial Court in its discretion or at the instance of any party may consider appointing Court Commissioner to undertake spot inspection of the suit land with a view to verify its exact location, area, boundaries etc.

The learned counsel for the plaintiff/appellant herein wants to take advantage of the said observation of the Hon’ble Supreme Court in that judgment. Here, the suit is filed only for perpetual injunction claiming ownership to the suit schedule property and possession but not for a declaration of title. In this suit, neither the learned trial Court nor this

Court can look into title except incidentally. Further, it is not the ancestral property of the plaintiff so to require to appoint a commissioner to measure the land, but on the other hand, it is the land recently came to the hands of the plaintiff and his predecessor also got the property a few years prior thereto. The case of the defendants that the plaintiff is trying to occupy the land of their grandfather by name Bethi Venkat

Reddy, which is said to be on the other side of the Ayacut road taking advantage of his own sale deed for Ac.0-27gts., is not being considered, since it is for the plaintiff to prove his case and even if the defendants have come with false plea, the same would not endure to his benefit.

Therefore, this Court is of the view that there is no necessity at all to appoint advocate-commissioner which if he so thought fit and necessary, the plaintiff ought to have made such request in the learned trial Court but not in this appeal at this late stage.

11.05.The approved plan sought to be produced now to receive it in

additional evidence is simply stated that it was misplaced at the time of

trial in the learned trial Court. When the plaintiff could produce permission letter for construction obtained from Grampanchayath with which this plan would be annexed, it is strange that the approved plan is misplaced and only sanction letter was available to file it in the Court below. Further, the respondents are denying the genuineness of the same and it is by stating that it is self-prepared plan and it cannot carry any weight. It may be noted that even if such a plan is filed along with application for permission with the Grampanchayath and the

Grampanchayath sanctioned the said plan, the same cannot be accepted as gospel truth that the extent of land mentioned therein is available on the ground. It is not that as if the authority, namely, Panchayath

Secretary, who approved it measured the land or got measured in his presence and found the extent of the land as Ac.0-27gts., or Ac.26.75 gts., found noted in the plan sought to be produced now. Therefore, this

Court is of the view that neither of the applications to appoint advocate- commissioner and to receive additional evidence requires favourable orders. Therefore, those two applications are dismissed and accordingly, this point No.2 is answered against the appellant.

12.00.Continuation of Point No.1 :-

In view of the findings already recorded that the extent of land available for sale to the plaintiff/appellant herein by his vendor Sri

Thallam Sriramulu and further to Sri Thallam Sriramulu by his vendor Sri

Davu Ram Reddy was only Ac.0-20 gts., since Ac.0-25 gts., out of

Ac.1.10 gts., was acquired by the Government and another Ac.0-05 gts., was sold by Ram Reddy to Y. Narender Rao, the plaintiff/appellant’s case that he is in possession of the suit schedule Ac.0-27gts., of land is baseless. Accordingly, this point is answered that the plaintiff failed to prove his lawful possession in suit schedule Ac.0-27 gts., of land.

13.00.POINT No.3 :-

The plaintiff simply pleaded in his plaint that the defendants are interfering with his possession in the suit schedule land, and that the cause of action arose for him on 25.07.2010. The defendants denied the same. The plaintiff failed to prove that in what manner and how the defendants tried to interfere with his possession in the suit schedule property. He did not whisper in his evidence in-chief as to the alleged date of cause of action except stating that the defendants are interfering over his suit schedule land. Thus, this Court finds that the plaintiff failed to prove even the cause of action. Accordingly, this point is answered against the plaintiff/appellant.

14.00.POINT No.4 :-

This Court has gone through the judgment of the learned trial

Court. The learned trial Court correctly appreciated the factual position and came to the same conclusion to which this Court arrived at that the plaintiff is having title only to Ac.0-20 gts., but not Ac.0-27 gts., of land shown in the suit schedule. Therefore, this Court holds that there is no interference required with the judgment of the learned trial Court.

Accordingly, this point is answered against the plaintiff/appellant.

15.00.POINT No.5 :-

In the result, the appeal is dismissed confirming the judgment and decree passed by the learned II-Addl. Junior Civil Judge,

Karimnagar in O.S. No.318 of 2010, dt.30.08.2016. The appellant is directed to pay costs to the respondents in this appeal.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open Court on this the 19th day of November, 2018.

Prl. District Judge, Karimnagar.

APPENDIX OF EVIDENCE

- Nil -

Prl. District Judge, Karimnagar.

-:-

FAIR

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE

KARIMNAGAR

PRESENT: SRI A.V. PARDHASARADHI, Prl. District Judge, K a r i m n a g a r.

ORIGINAL SUIT NO. 51 OF 2010

Monday, the 19 thday of November, 2018

Between :-

Siripuram Mallaiah S/o. Lachaiah, Age : 41 years, Occupation : Business and Agriculture, R/o. H.No.12-7-76, Shivanagar, Sircilla Village and Mandal, Karimnagar District.

...Plaintiff

And

Nareddi Mohan Reddy S/o. Narsa Reddy, Age : about 45 years, Occupation : Real Estate Business, R/o. H.No.5-8-595, Ashoknagar, Kamareddy, Nizamabad District. …Defendant -:-

This suit coming before me on 05.11.2018 for hearing in the presence of Sri P. Lachi Reddy, Advocate for the plaintiff and Sri T. Venugopal, Advocate for the defendant, and having been heard and having stood over for consideration till this day, the Court delivered the following :-

- : J U D G M E N T :-

This suit is filed for recovery of Rs.15,38,500/- with future interest @ 18% per annum on the principal amount of Rs.10,00,000/- against the sole defendant.

2.00.It is the case of the plaintiff that he is doing business in poultry feed and money transfer under the name and style of Sindhu

Veterinary Agencies having its Office at Sircilla and he is also an agriculturist. The defendant who is doing business in Real estate approached him through his close friend by name Gurrapu Ellaiah @

Mahesh to advance loan of Rs.10.00 lakhs which he was in need of for construction of three bed room flats at Kompalli, Hyderabad. The 2

O.S. No.51 of 2010

plaintiff agreeing to his request, advanced Rs.10.00 lakhs on 25.07.2007 in the presence of Sri Gurrapu Ellaiah @ Mahesh, Ch. Laxminarayana and

J. Narsinga Rao, which the defendant agreed to repay the same with interest @ 18% per annum and executed loan document on the same day. Thereafter, the plaintiff several times demanded the defendant for repayment, but the defendant has been postponing stating that the construction of flats is going on and soon he receives advance from the purchasers he would repay; and in fact, the defendant did not commence construction of flats. He got issued a legal notice on 28.06.2010 demanding the payment within ten days which was served on the father of the defendant on 29.06.2010, but he did not pay and atleast did not give reply. Therefore, the suit.

3.00.The defendant filed his written statement and denied the case of the plaintiff.

3.01.It is pleaded by the defendant that the plaintiff along with Sri

Gurrapu Ellaiah @ Mahesh approached him and persuaded him to allow them to be partners in the construction activity taken up by him and agreed to invest Rs.10.00 lakhs on condition that the profits and losses shall be shared by them equally, but the document shall be executed in the name of the plaintiff only and accordingly, a document was reduced into writing. It is further pleaded that after executing the document, the plaintiff as well as Sri Gurrapu Ellaiah @ Mahesh put a condition that the cash of Rs.10.00 lakhs will be paid to him only after the defendant purchased the land and obtained permission for construction and believing their representation that they are partners in the business, he remained silent, but he could not get suitable site for reasonable cost at 3

O.S. No.51 of 2010

Kompalli area and so he dropped the proposed venture and informed the same to the plaintiff and Ellaiah and thus, the plaintiff did not pay the amount as noted in the document to him. It is further pleaded that the plaintiff having developed ill-will and with malafide intention to extract money from him, he pressed into service the said nominal and sham document which is unenforceable against him. It is further pleaded that on receiving the legal notice from the plaintiff, he approached him along with Ellaiah and then the plaintiff promised that he will not file any suit and he need not worry and thereby he did not give suitable reply at then.

It is also pleaded that the henchmen of the plaintiff in collusion with

Ellaiah got signatures of his men as sureties and in fact none of them signed in his presence. It is further pleaded that the sureties must have been impleaded in the suit and thus for non-joinder of sureties, the suit is not maintainable, and that there is no cause of action and hence prayed to dismiss the same.

4.00.Basing on the above pleadings, the following issues are framed at first :-

1. Whether the plaintiff paid Rs.10,00,000/- (Rupees ten lakhs only) under the suit document, dt.25.07.2007 to the defendant as a loan repayable with interest @ 12% per annum ?

2. Whether the suit document was executed by the defendant without receipt of consideration in the circumstances stated by the defendant with regard to construction of flats ?

3. Whether the suit is bad for non-joinder of sureties as party defendants ?

4. Whether the plaintiff is entitled for a decree as prayed for?

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5.00.After the trial is completed and the suit is coming up for arguments, the defendant filed an application to frame additional issue in

I.A. No.1017/2018 and the same is allowed and the following additional issue is framed :-

Whether the plaintiff is money lender and if so, whether he possessed licence as required under A.P. (Telangana Area)

Money Lenders Act ?

6.00. During the course of trial before and after additional issue is framed, the plaintiff examined himself as PW.1 and two witnesses on his behalf as PW.2 and PW.3 and got marked Exs.A-1 to A-4 and closed his evidence.

6.01.For the defendant, he examined himself as DW.1 and closed his side evidence.

7.00.Heard both side and perused the entire evidence brought on to the record of both oral and documentary.

8.00.The learned counsel for the plaintiff contended that the defendant having borrowed Rs.10.00 lakhs for his business purpose, executed Ex.A-1 bond on 25.07.2007 in the presence of PW.2 and PW.3 and another witness and inspite of demands did not repay the amount due under the bond with interest, and that no amount was paid to the defendant under the said Ex.A-1 bond is not at all proved by the defendant, and that the witnesses signed in the said document are not sureties as they are explained but they are only witnesses and so the suit 5

O.S. No.51 of 2010

need not be filed against the so-called sureties and hence the suit may be decreed it being within limitation period.

9.00.The learned counsel for the defendant seriously contended that the suit document is not at all ‘Bond’ and it was not executed by the defendant voluntarily on receiving payment thereunder, but it was executed only for the purpose of plaintiff joining with the defendant in the Real estate business the defendant was doing and as a partner, as is recited in Ex.A-1, and that the suit is not maintainable without impleading the signatories therein who are found signed as sureties as admitted by PW.2 and PW.3 and further that there is no rate of interest mentioned in Ex.A-1 and therefore, the suit may be dismissed. It is also contended that in view of the additional issue framed, the plaintiff shall prove that he is not a professional money lender, but he failed and on the other hand PW.2 admitted that the plaintiff would advance money, if asked for and so, to do money lending business in Telangana Area, he must have obtained licence under A.P. (Telangana Area) Money Lenders

Act, 1349 F (Act 5 of 1349 F) and so, the suit may be dismissed.

10.00.Now the points that arise for consideration are of each issue.

11.00.ISSUES No.1 & 2 :-

The plaintiff examined himself as PW.1 deposed as in his plaint that the defendant doing real estate business approached him for loan of Rs.10.00 lakhs through his(PW.1) friend by name Gurrapu Ellaiah @ Mahesh and then he gave the said amount of Rs.10.00 lakhs on 25.05.2007 and it was in the presence of the said Gurrapu Ellaiah, Ch.

Satyanarayana and J. Narsinga Rao at his Office at Sircilla. He further deposed that the defendant having received the said amount of Rs.10.00 6

O.S. No.51 of 2010

lakhs, promised to pay interest @ 18% per annum and executed a document on Rs.100/- stamp paper in his own handwriting. He got marked the said loan document, dt.25.05.2007 in Ex.A-1 by getting it impounded as it is a bond. At first, there was a doubt as to the nature of the document whether it is a simple agreement or bond and when this

Court held it to be a simple agreement, the defendant carried the matter to the Hon’ble High Court by filing revision petition in CRP No.1791/2012.

Our Hon’ble High Court allowed the said revision petition on 20.09.2012 holding that the suit document since shows that the defendant acknowledging borrowing of Rs.10.00 lakhs and also undertook through the said deed to share the profits after paying interest @ Rs.1.50 and it being attested by three witnesses, it comes within the meaning of bond and so to take appropriate steps in accordance with the provisions of

Stamp Act if it is found that the same is not sufficiently stamped.

Thereafter, Ex.A-1 was impounded, and that the plaintiff paid stamp duty and penalty before the District Registrar. Thus, the nature of the document marked in Ex.A-1 has attained finality by the orders of the

Hon’ble High Court that it is a bond.

11.01.The evidence of PW.1 is corroborated by the evidence of PW.2 and PW.3 who are signatories to Ex.A-1. They deposed that on 25.07.2007, the defendant borrowed Rs.10.00 lakhs from the plaintiff in their presence and also in the presence of one Ch. Laxminarayana and executed Ex.A-1 and they both signed therein as attestors. Their signatures are found in Ex.A-1 and the same is not denied for the defendant.

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11.02.PW.1 was cross-examined for the defendant and he was suggested that he told the defendant that he will do business in partnership with the defendant for which he would invest Rs.10.00 lakhs, and that he did not lend money to the defendant under Ex.A-1. He denied the same. PW.2 stated that he has no previous acquaintance with the defendant prior to this loan transaction and denied that the negotiations took place between the plaintiff and the defendant for doing business in purchasing of plots and selling, and that the plaintiff did not lend Rs.10.00 lakhs to the defendant in his presence, and that since he has good acquaintance with the plaintiff, he is deposing falsehood. PW.2 denied all the said suggestions. PW.3 was suggested for the defendant that no money transaction has taken place under Ex.A-1 between the plaintiff and the defendant and in fact what was understood between the parties on that day was only to enter into a partnership in doing business at Kompalli and since he is close to the plaintiff, he deposed falsehood.

Thus, from the cross-examination of PW.2 and PW.3, it is clear that the presence of PW.2 and PW.3 is not disputed as on the date of Ex.A-1.

11.03.Now coming to the evidence of the defendant, he deposed that he does not know the plaintiff and witnesses by name Ch.

Laxminarayana and J. Narsinga Rao, but he knows only G. Ellaiah (PW.3), and that he did not receive any amount from the plaintiff and he did not approach the plaintiff on 25.07.2007 and did not receive Rs.10.00 lakhs on that day. However, he deposed that the plaintiff is interested to invest money in the business of construction of flats what he has been doing but did not invest by saying that he will join as partner by executing partnership deed before the Auditor and thus postponed. He further deposed that the suit document Ex.A-1 is created in collusion 8

O.S. No.51 of 2010

with PW.2 and PW.3 and one Ch. Laxminarayana. He further deposed that the plaintiff and PW.3 prepared a document of partnership in his name assuring a share in the profit, but the said document is not filed in the Court and on the other hand, the plaintiff createdEx.A-1 and filed.

He denied his signature in Ex.A-1. In his cross-examination, DW.1 stated that he does not know the plaintiff at all and had seen him only a day before he giving evidence in the Court, and that he had disputes with

PW.3 from the beginning, and that he had seen Ex.A-1 only about five or six days back for the first time to the date of he giving evidence and until then he had no knowledge about it and it is not at all in his handwriting and it does not bear his signature, and that the plaintiff never contacted him and informed that he wants to join as partner in the business, and that he does not know PW.2 and J. Narsinga Rao even by now. Thus, it is very clear that the defendant is coming with false story by denying everything which he in fact admitted in his written statement and failed to suggest otherwise what he now advanced in the cross-examination of

PWs.1 to 3.

11.04.It is further strange to read his cross-examination which states that though he approached the Hon’ble High Court relating to

Ex.A-1 document, which he is said to have seen only five or six days back to the date of his evidence, it was his assistant brought the papers to the High Court advocate and so he had no idea about the document.

He did not examine his so-called assistant and in fact he did not depose that he is taking assistance, and that the said assistant questioned the orders of this Court relating to Ex.A-1 document when he was treated as an agreement and approached the Hon’ble High Court by filing Civil

Revision Petition. In fact, he admitted in the written statement that on 9

O.S. No.51 of 2010

receiving legal notice, he approached the plaintiff and the plaintiff informed him that he will not take action and so he kept calm. Now he gives goby to the said statement and introduces new story as if he had not at all known the plaintiff. Thus, the evidence ofDW.1 is not at all believable but on the other hand, it can be branded as false evidence he deposed.

11.05.Thus, in view of the evidence of PW.1 coupled with the evidence of PW.2 and PW.3 who are admittedly signatories of Ex.A-1, this

Court holds that the suit document, dt.25.07.2007 termed as bond was executed by the defendant by receiving Rs.10.00 lakhs. Though in the said document, it is found recited that after taking interest @ 1.50 Ps., the profit shall be shared equally, it is nothing but acknowledging receipt of Rs.10.00 lakhs which was demanded, by the plaintiff and so without reference to the construction of flats by the defendant and taking share by the plaintiff along with the defendant equally, which in fact was with reference to interest part, the execution of Ex.A-1 by the defendant is proved and it is relating to advancement of Rs.10.00 lakhs to the defendant with interest @ 1.50 Ps., per month. Though it is not specifically stated that the said rate of interest is payable monthly or annually, but the plaintiff claimed it as monthly and thus the annual interest claimed can be taken as @ 18% per annum. Accordingly, these two issues are answered in favour of the plaintiff and against the defendant.

12.00.ISSUE No.3 :- 10

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No doubt, as seen from Ex.A-1 and also admitted by PWs.1 to 3, the PW.2 and PW.3 and another have found signed in Ex.A-1 under the head of Zamanth. It is not disputed but admitted even by PW.1and

PW.2 that Zamanath means surety/guarantee. However, they deposed that they signed therein as witnesses but not as guarantors or sureties.

Even if it is true that three persons found singed therein in Ex.A-1 are guarantors or sureties, the plaintiff/lender in not filing the suit against them cannot be treated as omission on his part in not impleading necessary parties. It is for the lender to choose against whom he shall proceed. If he omits to sue the sureties or guarantors but sued only

principal debtor, he cannot be permitted to sue separately the sureties or

guarantors, much less if limitation period is over. No provision of law is brought to the notice of this Court by the learned counsel for the defendant that the sureties are necessary parties and omitting to sue them but filing suit only against principal debtor is bad and as such suit is not maintainable when under Sec.137 of Indian Contract Act, a creditor can sue only the sureties and thus forbearance to sue the

principal debtor would not amount to per se negligent act. It is not

known why a creditor cannot sue the principal debtor leaving the sureties. Sec.138 of the Contract Acts ays, when there are co-sureties, a release by the creditor or by one of them does not discharge the others. So, this Court is of the view that the suit is not at all bad for non-joinder of sureties, if true PW.2 and PW.3 are sureties or guarantors, which in fact is not their case. Hence, this issue is answered against the defendant.

13.00.ADDITIONAL ISSUE :- 11

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The learned counsel for the defendant contended that the plaintiff is a money lender but he has no licence. Hence, the suit is to be dismissed. The learned counsel for the plaintiff placed reliance on the judgment of our Hon’ble High Court in Somanath Barman and others Vs

S.V. Jagannatha Rao (AIR 1973 AP 144) and contended that the plaintiff is not money lender, and that if the loan was advanced in the ordinary course of business then only licence is required under the Act 5 of 1349F.

The burden is on the defendant to prove that the plaintiff is a money lender and doing it a business.

13.01.No doubt, the plaintiff both in his plaint and in his evidence in-chief referred to himself as doing business of money transfer and poultry feed under the name and style o Sindhu Veterinary Agencies.

Further, it is true, PW.2 stated in the cross-examination that the plaintiff would lend money if he is asked for. The plaintiff in his further evidence in-chief filed after framing of additional issue that he never did business in money lending, and that the loan given to the defendant is only a transaction, and that he did not lend money to others. He denied the suggestion that he is running money lending business and it is without licence. He further stated in the cross-examination for the defendant that he is not doing business in money lending. He explained the meaning of he doing business of money transfer that he was working as

Commission Agent in Western Union which was dealing with money transfer. So, it is not that he admitted that he was doing business in money lending but his activity was as an agent of Western Union which is dealing with money transfer but not in money lending. PW.2 statement in his cross-examination is only that if the plaintiff is asked, he would lend money. It does not mean that PW.2 admitted that the plaintiff is 12

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doing money lending as a business and it is in a regular course what is required under the Act 5 of 1349 F. Therefore, this Court holds that the defendant failed to prove that the plaintiff is professional money lender and taking up money lending as a business. So, this issue is answered against the defendant.

14.00.ISSUE No.4 :-

In view of answering issues No.1 to 3 and additional issue in favour of the plaintiff, this Court holds that the suit being within three years period of limitation, the plaintiff is entitled for a decree. Though the rate of interest is specified the time whether it is monthly or annually is not mentioned, agreed between the plaintiff got issued legal notice marked in Ex.A-2, which is admitted by the defendant was received, the plaintiff claimed the said rate of interest and it is per annum for which no suitable reply is given nor that in the written statement it is pleaded that the interest has to be calculated on every year but not on every month and it is Rs.1.50 Ps. Hence this Court holds that the rate of interest of

Rs.1.50 calculated on every month and thus claimed in terms of annual interest @ 18% must be accepted. Thus, on calculation of the interest @ 18% per annum on the loan advanced of Rs.10.00 lakhs on 25.07.2007 to the date of filing of the suit, the principal amount becomes with interest Rs.15,38,500/-. The plaintiff claimed future rate of interest @ 18% per annum on the principal amount of Rs.10.00 lakhs. This

Court is of the view that the future interest shall be only @ 6% per annum from the date of the suit till the date of realization and it is on the adjudged amount of Rs.10.00 lakhs said to be advanced.

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15.00.Accordingly, the suit is decreed for Rs.15,38,500/- (Rupees fifteen lakhs thirty eight thousand five hundred only) with costs and subsequent interest @ 6% per annum on the principal sum of

Rs.10,00,000/- (Rupees ten lakhs only) from the date of the suit till the date of realization.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open Court on this the 19th day of November, 2018.

Prl. District Judge, Karimnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PLAINTIFF : FOR THE DEFENDANTS :

PW.1 : Siripuram MallaiahDW.1 : Nareddi Mohan Reddy PW.2 : Jalagam Narsinga Rao PW.3 : Gurram Ellaiah @ Mahesh

EXHIBITS MARKED

FOR THE PLAINTIFF :

Ex.A1Loan document dated 25.07.2007 acknowledging the receipt of the loan amount.

Ex.A2Office copy of Legal Notice dated 28.06.2010.

Ex.A3Postal Receipt dated 28.06.2010.

Ex.A4Postal Acknowledgment dated 29.06.2010.

FOR THE DEFENDANTS:- --None--

Prl. District Judge, Karimnagar.

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