Sri. A. Venkateshwara Reddy

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR

Present: A.Venkateshwara Reddy, Prl.District Judge.

Tuesday, the 24th day of January, 2017.

A.S No.15 of 2015

Between:

Gopikishan Kakani, S/o.late Ramakishan Kakani, Aged 59 yrs, Occ: Business, R/o.Shop No.9-30/7B, Dilsuikhnagar, Opp: Rajadhani Theatre, Hyderabad. … Appellant/Defendant AND

Smt.P.Lakshmi, W/o.P.Chennaiah, Aged 51 yrs, Occ: Housewife, Rep.by her SPA Holder Sri Chennaiah, S/o.Buchaiah, aged 55 yrs, Occ: Gaddiannaram, Dilsukhnagar, Hyderabad. … Respondent/Plaintiff

Appeal against the Judgment & Decree passed by the II Addl.Jr.Civil

Judge, R.R.District at L.B.Nagar, dtd.11-12-2012, in

O.S.No.2298/2009

Between:

Smt.P.Lakshmi … Plaintiff AND

Gopikishan Kakani … Defendant

This appeal is coming before me for a final hearing on 29-12-2016 in the presence of Sri J.Gopala Kishan, Counsel for the appellant, respondent remained ex parte and upon hearing the learned Counsel for the appellant, perusing the material on record and the matter having stood over for consideration till this day, this Court passed the following:-

JUDGMENT

This appeal is directed against the impugned Judgment & Decree dtd.11- 1.

12-2012 in O.S.No.2298/2009 on the file of learned II Addl.Junior Civil Judge,

R.R.District at L.B.Nagar. The appellant herein is the defendant/tenant and the respondent is the plaintiff/landlady.

For the sake of convenience the parties are hereinafter referred as arrayed 2.

in the Original Suit as ‘plaintiff’ and ‘defendant’.

A.S.No.15 of 2015

Page No. 2 of 10

Plaintiff filed the Original Suit for recovery of possession, mesne rofits and 3.

for delivery of vacant possession of Mulgi bearing No.9-39/7B, admeasuring 180 sq.yards situated at Ddilsukhnagar, opposite to Rajadhani Theatre, Hyderabad (hereinafter referred as ‘suit schedule property) and to award mesne profits @

Rs.15,000/- p.m from the date of filing the suit till the date of recovery of possession and also to award arrears of rent for the month of November, 2009.

Main averments of the plaint are that, plaintiff is the owner of suit schedule 4.

property and let out the same to the defendant through a lease deed dtd.17-08- 1996 and the agreed rent was Rs.1,600/- p.m excluding electricity and water charges. The defendant has deposited an amount of Rs.1,50,000/- as security deposit. The tenancy is month to month and from time to time the rent is enhanced to Rs.5,600/- p.m. The defendant paid rent for the month of October, 2009 and while receiving the rent, plaintiff requested the defendant to vacate the suit schedule property and also got issued a legal notice dtd.10-11-2009 to that effect. The defendant got issued a false reply and failed to vacate the suit schedule property. Hence, the suit is filed for recovery of possession, damages @ Rs.15,000/- p.m from December, 2009 onwards and also for mesne profits.

The defendant resisted the suit and filed a detailed written statement. Brief 5.

facts of the written statement are that he is admitting the tenancy and security deposit amount deposited with the plaintiff. However, it is alleged that at the time of induction as tenant, he was asked to pay an amount of Rs.70,000/- to the previous tenant towards goodwill and he has paid the said amount. Though it was agreed between the parties for enhancement of rent at 10% for 3 years, the plaintiff has enhanced the rent according to her will and pleasure far exceeding

A.S.No.15 of 2015

Page No. 3 of 10 the 10% enhancement and the rent for the month of October, 2009 was

Rs.5,600/- p.m. Plaintiff has also collected Rs.98,000/- towards hand loan illegally and failed to pay the said amount. In all, the plaintiff is liable to pay

Rs.3,93,000/- with interest @ 24% p.a and the defendant is not liable to be evicted till payment of such amount.

Basing on the above pleadings, the trial Court framed the following 6.

issues:-

Whether the plaintiff is entitled for eviction of the (1) defendant from the suit property as prayed for ?

Whether the plaintiff is entitled for mesne profits as (2) prayed for?

Whether the plaintiff is entitled for arrears of rent as (3) prayed for?

To what relief ? (4)

During trial, on behalf of plaintiff, her husband was examined as PW1 and 7.

Exs.A1 to A4 documents were marked. In the cross examination of PW1, Exs.B1 & B2 documents were marked and plaintiff’s evidence was reported closed.

Later, the defendant filed his affidavit evidence in lieu of his chief examination, but failed to turn up for cross examination. Accordingly, his evidence was eschewed from consideration.

A.S.No.15 of 2015

Page No. 4 of 10

The trial Court after hearing both sides and on appreciation of the facts 8.

and material available on record, partly decreed the suit directing the defendant to vacate the suit premises and to handover the actual vacant physical possession of the suit schedule property within a period of one month from the date of the Decree. Further directed the defendant to pay Rs.8,000/- p.m towards damages from November, 2009 onwards for wrongful use of suit schedule property. The plaintiff was directed to refund the security deposit amount of Rs.1,50,000/- on defendant vacating the suit schedule property.

Aggrieved by the said findings of the trial Court, the appellant/defendant 9.

has directed this appeal on the following grounds:-

The trial Court failed to appreciate the material available on record and thrown away the defendant’s case, though there is no force in the contention of the plaintiff’s case. The defendant could have been given one more opportunity to adduce his evidence before the trial court and the Judgment of the Court below is misconceived both on facts and law and liable to be set aside.

Heard the learned Counsel for the appellant/defendant. The 10.

respondent/plaintiff remained absent and she was set ex parte as per the Docket dtd.31-3-2016.

Point for consideration is whether the Judgment & Decree impugned is 11.

sustainable or warrants any interference by this Court.

POINT: 12.

A.S.No.15 of 2015

Page No. 5 of 10

The admitted or undisputed facts of the case are that the plaintiff is landlady of suit schedule property and the defendant is tenant entered into possession of it as per the rental agreement dtd.17-8-1996 the initial rent was

Rs.1,600/- p.m and there was an agreement between the parties for enhancement of the rent from time to time. The defendant has paid rent of

Rs.5,600/- for the month of October, 2009. It is also an admitted fact that the defendant has deposited an amount of Rs.1,50,000/- towards security deposit.

The case of the plaintiff is that she has requested the defendant to vacate 13.

the suit schedule property from November, 2009 onwards, also got issued a notice as required U/s.106 of Transfer of Property Act, it was acknowledged by the defendant, got issued a false reply and failed to vacate the suit schedule property. Hence, the suit is filed for eviction, recovery of rent for the month of

November, 2009 and also mesne profits.

In support of plaintiff’s claim, she has examined her husband as PW1, who 14.

filed his evidence affidavit in lieu of chief examination reiterating the plaint averments on all material aspects. In his evidence, Exs.A1 to A4 documents were marked. Ex.A1 is office copy of legal notice dtd.10-11-2009, Ex.A2 is the reply notice dtd.22-11-2009 got issued by the defendant, Ex.A3 is the receipt of

UCP and Ex.A4 is the rental receipt for the month of October, 2009. This witness is cross examined at length. In the cross examination, he stated that there was an agreement between the parties for enhancement of rent at 10% p.a. The defendant has paid the enhanced rent regularly from time to time till the date of filing the suit and there was no alteration or change in the shop. This witness

A.S.No.15 of 2015

Page No. 6 of 10 denied the suggestion that defendant was asked to pay Rs.70,000/- to the previous tenant at the time of inducting him as tenant. However, he has admitted that he received Rs.50,000/- and Rs.10,000/- on 26-8-1998 and 11-4-1998 respectively from the defendant and passed receipts as in Exs.B1 & B2 and denied all other suggestions with regard to defendant’s claim for recovery of

Rs.2,25,000/- excess rent paid to the plaintiff and also Rs.98,000/- alleged to have been paid by the defendant to the plaintiff.

Though the defendant has taken a specific plea that rent was agreed to be 15.

enhanced at 10% per 36 months only, he did not choose to file any written lease agreement. In the absence of written lease agreement, in my considered view it would be reasonable to accept the terms of lease from month to month, quantum of rent, amount of security deposit, payment of rent till October, 2009 as admitted by both the parties. PW1 was cross examined with reference to the defence set up by the defendant, but nothing is elicited except Exs.B1 & B2 documents alleging that on two occasions PW1 has received Rs.50,000/- and Rs.10,000/- from the defendant. However, it is clearly explained by the witness that he has repaid the said amount immediately and he is not liable to pay any other amount except the security deposit amount of Rs.1,50,000/-.

Ex.A1 is the statutory notice U/s.106 of Transfer of Property Act, wherein it 16.

is alleged by the plaintiff that while accepting the rent for the month of October, 2009, she has specifically requested the defendant to vacate the premises by the end of November, 2009 and in continuation of such request, Ex.A1 notice was issued as required under law and the defendant was called upon to vacate the demised premises by the end of November, 2009, in default to pay an amount of

Rs.15,000/- p.m towards damages. Ex.A2 is the reply notice with various

A.S.No.15 of 2015

Page No. 7 of 10 allegations. However, the quantum of rent, terms of lease agreement, etc., are accepted. In para No.5 of Ex.A2 and also in the written statement pleadings, the defendant has claimed an amount of Rs.3,93,000/- towards excess rent amount collected, hand loan amount and also towards payment of Rs.70,000/- as goodwill. As stated above, neither the plaintiff nor the defendant have filed the lease agreement and the contention of the defendant that rent was only agreed to be enhanced at 10% per 3 years is not fortified by any material available on record including the admissions of PW1. Though it is alleged in the written statement and in Exs.A2 about hand loan of Rs.98,000/-, PW1 has categorically stated that only Rs.50,000/- and Rs.10,000/- were received by him as hand loan and Exs.B1 & B2 were passed by him, but he has repaid the said amount immediately and he is not liable to pay any other amount to the defendant. With regard to the goodwill amount paid to the earlier tenant at the time of induction of defendant into the suit premises also there is a categorical denial by the plaintiff through her husband as PW1 and nothing is elicited in his evidence as to the payment of goodwill to the earlier tenant by the defendant or taking hand loan of

Rs.98,000/- or collecting excess rent over and above the agreed amount. In that view of the matter, in my considered opinion, the non-examination of any witness on behalf of the defendant in support of his claim is fatal to his case.

The defendant having filed the written statement with several allegations 17.

failed to enter into the witness box to speak the contents of written statement filed by him on oath, thereby avoided the cross examination by the other side.

This by itself is sufficient to draw an adverse inference against him U/s.114(g) of the Indian Evidence Act to hold that the defence set up by him in the written statement is not correct. To arrive at this conclusion, I am supported by the law

A.S.No.15 of 2015

Page No. 8 of 10 laid by the Hon’ble Apex Court in Vidyadhar vs. Manikrao (AIR 1999 SC at page

No.1441).

Thus, in the absence of any admissions of PW1 and evidence adduced on 18.

behalf of defendant, it is not possible to accept the contention of the defendant that at the time of his induction as tenant, he was asked to pay Rs.70,000/- towards goodwill to the earlier tenant and that he has paid an amount of

Rs.98,000/- towards hand loan to the plaintiff or her husband and that the plaintiff has collected the excess rent amount over and above the agreed amount, thereby I am not inclined to accept the contention of the defendant on this aspect. The termination of tenancy under Ex.A1 is strictly in accordance with the provisions of Sec.106 of the Transfer of Property Act. The receipt of said notice by the defendant is admitted and he has got issued a reply also. The defendant has not raised any specific objection as to the validity of statutory notice under

Ex.A1.

In view of paragraph 1 of Sec.107 of the Transfer of Property Act, since the 19.

lease was for a period exceeding one year, it could have been extended by a registered instrument executed by both the parties. In the absence of a registered instrument, the least shall be deemed to be a lease from month to month and accordingly, as contemplated under law, plaintiff has got issued statutory notice as in Ex.A1 and the validity of the same is not in dispute.

However, the contention of the defendant is that an amount of more than

Rs.3,23,000/- is still lying with the plaintiff and unless she is directed to pay the said amount, he is not willing to vacate the premises, which is not at all acceptable in view of the findings of the trial Court that the plaintiff is directed to

A.S.No.15 of 2015

Page No. 9 of 10 pay only security deposit amount of Rs.1,50,000/- on eviction of the defendant.

Further, the trial Court has rightly directed the defendant to pay Rs.8,000/- p.m towards mesne profits from November, 2009 till the date of vacating the premises for wrongful use of it after terminating the tenancy. Since it is established with acceptable evidence that the termination of tenancy of the defendant is valid and he did not vacate the suit schedule property, continuing his possession as tenant at sufferance, the plaintiff is entitled to evict the defendant and to take delivery of possession of the demised premises.

Though the plaintiff has demanded for mesne profits @ Rs.15,000/- p.m, 20.

undisputedly no other witness is examined except PW1 and no documentary evidence is produced before the trial Court to show that the property situated in similar locality or adjacent to this property is fetching Rs.15,000/- p.m as rent. In that view of the matter, in my considered opinion, the findings recorded by the

Court below that the defendant is directed to pay monthly mesne profits of

Rs.8,000/- p.m is quite just and reasonable and accordingly, he was directed to pay the said amount with effect from December, 2009 till the date of recovery of possession.

As far as recovery of arrears of rent is concerned, there is ample evidence 21.

on record in the pleadings of the plaintiff and even as per the oral evidence of

PW1 and Ex.A4 that the defendant has paid the rent @ Rs.5,600/- p.m till

October, 2009. Hence, the question of payment of any arrears does not arise and this issue No.3 was rightly answered by the trial Cout.

A.S.No.15 of 2015

Page No. 10 of 10

The learned Counsel for the appellant/defendant strenuously contends that 22.

no opportunity was given to the appellant/defendant to adduce evidence and his evidence was closed in a hasty manner. One more opportunity may be given to the defendant so as to lead his evidence. I have carefully perused the docket proceedings of the trial court, wherein it is mentioned that on 28-12-2011 evidence affidavit of PW1 was filed. Later, inspite of grant of ample opportunity, the defendant failed to cross examine the witness. Finally, the witness was recalled and cross examined on 9-4-2012. In fact, from 27-3-2012 onwards the matter was being adjourned for defendant’s evidence from time to time.

Evidence affidavit of DW1 was filed on 22-6-2012. The witness failed to appear

before the Court on 9-7-2012, 20-7-2012 and 22-8-2012, on which date the trial

Court has imposed costs of Rs.100/- and adjourned the matter to 4-9-2012, from there it was adjourned to 18-9-2012, 15-10-2012, 26-10-2012 and finally on 5-11- 2012. As the witness was continuously absent for about more than 6 months after filing his evidence affidavit in chief examination, his evidence was eschewed from consideration on 5-11-2012 and the matter was posted for arguments. In that view of the matter, I do not find any fault with the manner in which the proceedings were conducted before the Court below.

In fact, the defendant as a typical tenant adopted dilatory tactics 23.

throughout the trial. PW1 was not cross examined immediately after his evidence affidavit was filed. So also after the evidence affidavit of DW1 was filed, the witness did not turn up for about more than 6 months. Thereby the trial Court was forced to close the evidence of defendant by eschewing the evidence of DW1, which was available on record, as he did not turn up for cross examination. In that view of the matter, I do not find any force in the request of the learned

Counsel for the appellant to give one more opportunity to the defendant to lead

A.S.No.15 of 2015

Page No. 11 of 10 his evidence. In my considered opinion, the Trial Court has given ample opportunity to the defendant and on careful analysis of the evidence available on record arrived at a right conclusion and the findings recorded by the Court below does not warrant any interference by this Court. Accordingly, the point is answered against the appellant/defendant.

In the result, the appeal is dismissed, with costs, confirming the impugned 24.

Judgment & Decree of the Court below in toto.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by

me in the Open Court on this the 24th day of January, 2017.

PRL.DISTRICT JUDGE,

RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITENSSES EXAMINED

NIL

EXHIBITS MARKED

NIL

PRL.DISTRICT JUDGE,

RANGA REDDY DISTRICT.

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR

Present: A.Venkateshwara Reddy, Prl.District Judge.

Wednesday, the 25th day of January, 2017.

A.S No.259 of 2013

Between:

Smt.S.Rameshwari, S/o.Sri S.Suryakiran, Aged 29 yrs, Occ: Household, R/o.H.No.1-19-97, Asaf Village, Kothabasthi, Venkatapuram, R.R.District. … Appellant

AND

1. Kumar, S/o.Madhura Muthu, Aged 51 yrs, Occ: Business, R/o.H.No.5-10-106, JUJ Nagar, Yapral, Malkajgiri Mandal, R.R.District.

2. Pattabhiraman, S/o.Sri Ramdas, Aged 58 yrs, Occ: Business, R/o.H.No.5-10-107, JJ Nagar, Yapral, Malkajgiri Mandal, R.R.District. … Respondents

Appeal against the Judgment & Decree passed by the Addl.Junior Civil

Judge, Malkajugiri, R.R.District, dtd.12-08-2013, in

O.S.No.491/2009

Between:

Smt.S.Rameshwari … Plaintiff AND

1. Kumar

2. Pattabhiraman … Defendants

This appeal is coming before me for a final hearing on 19-12-2016 and upon hearing the learned Counsel for the appellant Sri M.Sreedhara Murthy and treating the arguments of respondents 1 & 2 as heard, as their Counsel Sri A. Sanjeeva Reddy & Sri K.R.Manikumar respectively remained absent, perusing the material on record and the matter having stood over for consideration till this day, this Court passed the following:-

JUDGMENT

The unsuccessful plaintiff has directed this appeal against the Judgment & 1.

Decree impugned in O.S.No.491/2009 dtd.12-08-2013 on the file of Addl.Junior

Civil Judge, Malkajgiri, R.R.District.

A.S.No.259 of 2013

Page No.2 of 8

For the sake of convenience, the parties are referred as ‘plaintiff’ and 2.

‘defendants’ as arrayed in the Original Suit.

Brief facts of the plaint:- 3.

Plaintiff is the absolute owner and possessor of Plots bearing Nos. 1 & 2, admeasuring 160 sq.yards, in Sy.No.196, forming part of J.J.Nagar Colony,

Yapral Village, Alwal Municipality, Malkajgiri Mandal, R.R.Disitrict (hereinafter referred as ‘suit schedule property’). She acquired the same through registered gift settlement deed Doc.No.5284/2007 dtd.10-12-2007 executed by her husband. She was contemplating to raise structures after pooling necessary funds. In the meantime, when the defendants, who have no manner of right or interest over the suit schedule property, tried to meddle with the property by trespassing into it, she protested and resisted their attempts and also lodged a complaint before the Municipal authorities and police officials. The plaintiff has prima facie case, balance of convenience is in her favour and entitled for a perpetual injunction against the defendants.

Defendant No.1 resisted the suit. Defendant No.2 remained absent and 4.

set ex-parte.

Main averments of the written statement of defendant No.1:

5.

There is no cause of action for filing the suit. Plaintiff has no manner of right or interest over the suit schedule property and the gift deed executed in her

A.S.No.259 of 2013

Page No.3 of 8 favour by her husband cannot convey any title. Sri Suryakiran, alleged executants of gift deed, has no right or interest over the suit schedule property.

In fact, the suit schedule property is the court-yard land in front of the house of defendants and they were using the same since long time as part of their house bearing No.5-10-107 corresponding to old house No.10-106 situated at

J.J.Nagar, Yapral Village, Malkajgiri Mandal, R.R.Distrit. This house was constructed by the deceased father of defendants in the year 1957. Since then the suit schedule property is forming part of this house and the defendant No.1 is in exclusive possession and enjoyment of the same. The alleged settlement deed dtd.10-12-2006 executed by the husband of plaintiff in her favour cannot convey any title or possession in her favour. Neither the plaintiff nor her husband were in possession of the suit schedule property at any point of time.

Accordingly, prayed for dismissal of the suit.

Based on the above pleadings, the trial Court has framed the following 6. issues:-

Whether the plaintiff is the possessor of the suit schedule (1) property as on the date of filing of the suit ?

Whether the plaintiff is entitled for the relief of perpetual (2) injunction against the defendants, as prayed for ?

To what relief ? (3)

During trial, on behalf of plaintiff, she herself got examined as PW1 and in 7.

her evidence Exs.A1 to A15 documents were marked. Despite granting ample

A.S.No.259 of 2013

Page No.4 of 8 opportunity, defendants failed to adduce any evidence and their evidence was closed

After appreciation of the evidence available on record, the trial Court 8.

dismissed the suit of the plaintiff with an observation that the plaintiff has failed to prove that pursuant to Ex.A1 mutation was effected on her name in the relevant records and the documents Exs.A14 and A15 cannot convey any title or interest to the predecessors-in-title of the plaintiff and she is not entitled for a perpetual injunction.

Aggrieved by the findings recorded by the Court below, this appeal is 9.

preferred on the following grounds:-

(a) The trial Court has dismissed the suit without proper appreciation of oral and documentary evidence in a casual manner. (b) The trial Court ought to have decreed the suit by following the proposition laid in the reported decision in

AIR 1999 SC 1441, since the defendant failed to enter into the witness box to speak the contents of the written statement filed by him on oath. (c) The trial

Court while passing the impugned Judgment had commented about non- mentioning the relationship of plaintiff and her husband as mentioned in Ex.A1.

(d) The trial Court has not taken into consideration the legal proposition that in a suit for injunction, even an un-registered document can be considered for collateral purpose. Hence, non-consideration of Exs.A1, A14 and A15 by the trial

Court is not in its right perspective. (e) The trial Court has been carried away with the wrong assumption that there is little gap in the period between Exs.A14,

A15 and A1 and they are collusive documents. (f) The trial Court did not consider

A.S.No.259 of 2013

Page No.5 of 8 the report of the Advocate Commissioner, which is filed showing that there is 20 feet width road between house of defendants and the suit schedule property. (g)

The trial Court has wrongly concluded that the plaintiff has suppressed the material facts.

Heard the learned Counsel for the appellant/plaintiff, whereas the 10.

respondents remained absent and treated as heard.

In the light of rival contentions and the material available on record, the 11.

point for consideration is whether the Judgment & Decree impugned is sustainable or warrants any interference by this Court.

POINT: 12.

Plaintiff has filed this suit for perpetual injunction against the defendants alleging that they have no manner of right or interest over the same. Whereas, her husband has executed a registered gift settlement deed in her favour and she is in settled possession and enjoyment of the same. The plaintiff has also got appointed an Advocate Commissioner vide I.A.No.626/2013, who inspected the suit schedule property. She has filed the report of the Advocate

Commissioner, which is also annexed with the plan, wherein it is clearly shown that the suit schedule property is divided by a road of 20 feet width from the house of defendants. In support of her claim, plaintiff herself got examined as

PW1 and in her evidence Exs.A1 to A15 documents were marked. Ex.A1 is t he registered Gift Settlement Deed. The eastern side boundary of suit schedule

A.S.No.259 of 2013

Page No.6 of 8 property even as per Ex.A1 is shown as 20 feet wide road. It is only after this road, the house of defendants is situated as per the pleadings in the plaint,

Commissioner’s Repot and even as per the rough sketch annexed to Ex.A1 gift settlement deed. Ex.A2 is office copy of legal notice dtd.4-12-2009 got issued by the plaintiff to the defendants when they were trying to interfere with her possession. Exs.A3 to A6 are courier receipts. Similarly, Ex.A7 is another notice and Exs.A8 to A11 are courier receipts in respect of Ex.A7. Ex.A12 is the allotment letter issued in respect of Plot No.12 by Jai Jawahar Nagar Colony

Welfare Society in favour of one D.Koteshwaran. Ex.A13 is Checklist and

Acknowledgment of GHMC in respect of suit schedule property. Exs.A14 & A15 are agreement of sale and un-registered gift settlement deed in favour of husband of the plaintiff. Though the plaintiff has not filed any link document or some other admissible documentary proof in support of Ex.A1, this evidence adduced on her behalf is sufficient to hold that she was in settled possession of suit schedule property as on the date of filing of the suit and the house of defendants is separated by a road of 20 feet width road from the suit schedule property.

The defendant No.1 having pleaded that the suit schedule property is their 13.

court-yard and their father has built a house in the year 1957, it was assigned with H.No.5-10-106 corresponding to old 10-106 and also that he is in exclusive possession and enjoyment since last more than 50 years, did not choose to enter into the witness box to speak the contents of the written statement filed by him on oath, thereby avoided the cross examination by the other side. This by itself is sufficient to draw an adverse inference against him U/s.114(g) of the

Indian Evidence Act, as held by the Hon’ble Apex Court in Vidyadhar v.

Manikrao (AIR 1999 SC at page 1441).

A.S.No.259 of 2013

Page No.7 of 8

In a suit for perpetual injunction U/s.38 of the Specific Relief Act, plaintiff 14.

has to prove his/her possession over the suit schedule property as on the date of filing of the suit. Scrutiny of plea of title is only to see that whether plaintiff holds a semblance of right vis-à-vis property, as relief of injunction cannot be granted against true owner. Title need not be proved as in the case of suit for declaration of title. If the defendant claims a title to the suit property, then the

Court has to examine whether it is relatively superior than one pleaded by the plaintiff.

In the present case, the defendant No.1 has claimed title and possession 15.

over the suit schedule property, but he has failed to establish the same.

Whereas, plaintiff having pleaded title and possessed filed Ex.A1 registered gift settlement deed executed in her favour by her husband. She has also filed

Exs.A12 to A15, allotment letter by Jai Jawahar Nagar Colony Welfare

Association, Checklist and Acknowledgment of GHMC, Agreement of Sale in favour of donor of her husband and un-registered gift settlement deed in favour of her husband in respect of the suit schedule property. All these documents would establish that plaintiff is in possession of suit schedule property and her title over the same is relatively superior to that of the one pleaded by the defendants.

Therefore, on a careful analysis of the oral and documentary evidence 16.

adduced by the plaintiff, as the defendant did not choose to enter into the witness box to speak the contents of the written statement filed by him on oath, in my considered opinion, the evidence adduced on behalf of plaintiff is quite

A.S.No.259 of 2013

Page No.8 of 8 convincing and acceptable. Plaintiff is able to prove that she is in exclusive possession and entitled for perpetual injunction. In that view of the matter, I am of the considered opinion that the trial Court failed to appreciate the material available on record in accordance with the settled principles of law and arrived at a wrong conclusion and the findings recorded by the Court below warrants interference by this Court and liable to be set aside. Accordingly, the point is answered in favour of the appellant and against the respondents/defendants holding that the plaintiff is able to establish her exclusive possession and enjoyment over the suit schedule property and she is entitled for a perpetual injunction as prayed for.

In the result, the appeal is allowed, with costs, setting aside the impugned 17.

Judgment & Decree of the Court below dtd.24-06-2013 and a perpetual injunction is granted in favour of the plaintiff restraining the defendant and their men from interfering with her possession over the suit schedule property.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by

me in the Open Court on this the 25th day of January, 2017.

PRL.DISTRICT JUDGE,

RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITENSSES EXAMINED

NIL

EXHIBITS MARKED

NIL

PRL.DISTRICT JUDGE,

RANGA REDDY DISTRICT.

A.S.No.259 of 2013

Page No.9 of 8

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE,

RANGA REDDY DISTRICT.

Present: A.Venkateshwara Reddy, Prl.District Judge.

Friday, the 27 th day of January, 2017.

G.O.P. 1201 of 2016

Between:

Yadagiri Rama Devi, W/o.late Y.Sravan Kumar Goud, Aged about 41 years, Occ: Housewife, R/o.H.No.2-2-1042, Behind Mahankali Temple, Amberpet, Hyderabad, T.S. … Petitioner

AND All concerned. … Respondents

This petition is coming up before me for final hearing on 25-01-2017 and upon hearing the Counsel for petitioner Sri Hemanth Praveen Kumar, perusing the material on record and the matter having stood over for consideration till this day , this Court made the following:

O R D E R

1.The petitioner has filed this petition U/s. 8 (2) of Hindu Minority and

Guardianship Act, 1956 r/w Sec.29 of Guardian and Wards Act, 1890 for her appointment as guardian to her minor daughter Samyuktha with a permission to sell the petition schedule property.

2.Brief facts of the petition are:

Petitioner is the natural mother and guardian of her minor daughter

Samyuktha, aged about 16 years. The petitioner’s husband Y.Sravan Kumar

Goud died 16-4-2005 leaving behind the petitioner, her major son by name

Prakash Goud and minor daughter Samyuktha. During his life time, he has purchased Plot Nos.32 & 33, admeasuring 267 sq.yards and 246 sq.yards respectively, totally admeasuring 513 sq.yards in Sy.Nos.200 & 201, situated at

Kuntloor Village under Pedda Amberpet Gram Panchayat, Hayathnagar Mandal (hereinafter referred as ‘suit schedule property’) under registered sale deed

Doc.No.1519/2008 dtd.30-05-2008 and they are in possession of the same even after the death of her husband. She is not in a position to protect this property

G.O.P.No.1201 of 2016 Page No.2 of 4 and also not able to meet the educational expenses of her son and this minor daughter, who is studying intermediate second year. Accordingly, prayed to sell or alienate 1/3rd share of her minor daughter in the petition schedule property, as her major son is also willing to execute sale deed.

3.A general notice was published. None of the objectors appeared. On behalf of petitioner, her evidence affidavit is filed as PW1 and Exs.A1 to A4 documents are marked.

4.Heard the learned Counsel for the petitioner.

5.The point for consideration is whether petitioner is entitled for the relief as prayed for.

6.POINT:

Petitioner is the natural mother of her minor daughter Samyuktha. The petition schedule property was purchased by her late husband through Ex.A1 and now she is not in a position to look after this property and also it is necessary for her to sell the same to meet the educational expenses of her son and this minor daughter. In support of her claim, she has filed her evidence affidavit in lieu of chief examination as PW1 and Exs.A1 to A4 documents are marked. Ex.A1 is certified copy of sale deed Doc.No.1519/2008. Ex.A2 is original Death Certificate of her husband. Ex.A3 & A4 are Market Value Certificate and Encumbrance

Certificate.

7.Sec.29 of the Guardian & Wards Act only requires permission of the Court for sale of immovable property wherein minor’s interest is involved and the Court is only duty bound to enquire whether the transaction is necessary and whether it is for the benefit of minor.

G.O.P.No.1201 of 2016 Page No.3 of 4

8. The petitioner proposes to sell the entire petition schedule property, but the prospective purchasers are insisting for permission from the Court to the extent of 1/3rd share of her minor daughter Samyuktha, who is aged about 16 years. That apart, she is not in a position to protect this property, which are open plots. She has to meet the educational expenses of her son and this minor daughter. In that view of the matter, I am satisfied that the proposed sale of petition schedule property is in the best interest of the minor and the petitioner, being natural mother, has no adverse interest to that of her minor daughter.

Accordingly, I am inclined to permit the petitioner to sell the 1/3rd share of her minor daughter in the petition schedule property. The point is accordingly answered in favour of the petitioner.

9. In the result, the petition is allowed. The petitioner Smt.Y.Rama Devi, natural mother of her minor daughter Kum.Samyuktha, is appointed as her guardian with a permission to sell away 1/3rd share of her minor daughter in the petition schedule property, Plots bearing Nos.32 & 33, totally admeasuring 513 sq.yards out of Sy.Nos.200 & 201 of Kukntloor Village, Pedda Amberpet Gram

Panchayat, Abdullapurmet Revenue Mandal, R.R.District. The petitioner shall re- invest the sale proceeds in any immovable property or deposit in any

Natiionalized Bank and use interest portion only towards education and other expenses of the minor, till she attains the age of majority.

(Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in the Open Tribunal on this the 27 th day of January, 2017.)

PRL.DISTRICT JUDGE

RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF PETITIONER:

G.O.P.No.1201 of 2016 Page No.4 of 4

PW1 - Smt.Yadagiri Rama Devi, petitioner

ON BEHALF OF RESPONDENTS: NIL

EXHIBITS MARKED

ON BEHALF OF PETITIONER:

Ex.A1 - CC of regd.sale deed dtd.30-05-2008 in Doc.No.1519/2008 Ex.A2 - Original Death Certificate of Y.Sravan Kumar Goud Ex.A3 - Market Value Certificate dtd.26-10-2016 issued by SRO, Hyderabad East Ex.A4 - Encumbrance Certificate dtd.26-10-2016

ON BEHALF OF RESPONDENTS: NIL

PRL.DISTRICT JUDGE

RANGA REDDY DISTRICT.

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE,

RANGA REDDY DISTRICT.

Present: A.Venkateshwara Reddy, Prl.District Judge.

Friday, the 27 th day of January, 2017.

G.O.P. 1200 of 2016

Between:

Yadagiri Rama Devi, W/o.late Y.Sravan Kumar Goud, Aged about 41 years, Occ: Housewife, R/o.H.No.2-2-1042, Behind Mahankali Temple, Amberpet, Hyderabad, T.S. … Petitioner

AND All concerned. … Respondents

This petition is coming up before me for final hearing on 25-01-2017 and upon hearing the Counsel for petitioner Sri Hemanth Praveen Kumar, perusing the material on record and the matter having stood over for consideration till this day , this Court made the following:

O R D E R

1.The petitioner has filed this petition U/s. 8 (2) of Hindu Minority and

Guardianship Act, 1956 r/w Sec.29 of Guardian and Wards Act, 1890 for her appointment as guardian to her minor daughter Samyuktha with a permission to sell the petition schedule property.

2.Brief facts of the petition are:

Petitioner is the natural mother and guardian of her minor daughter

Samyuktha, aged about 16 years. The petitioner’s husband Y.Sravan Kumar

Goud died 16-4-2005 leaving behind the petitioner, her major son by name

Prakash Goud and minor daughter Samyuktha. During his life time, he has purchased Plot No.25, admeasuring 300 sq.yards, in Sy.Nos.200 & 201, situated at Kuntloor Village under Pedda Amberpet Gram Panchayat, Hayathnagar

Mandal (hereinafter referred as ‘suit schedule property’) under registered sale deed Doc.No.660/2008 dtd.27-02-2008 and they are in possession of the same even after the death of her husband. She is not in a position to protect this property and also not able to meet the educational expenses of her son and this

G.O.P.No.1200 of 2016 Page No.2 of 4 minor daughter, who is studying intermediate second year. Accordingly, prayed to sell or alienate 1/3rd share of her minor daughter in the petition schedule property, as her major son is also willing to execute sale deed.

3.A general notice was published. None of the objectors appeared. On behalf of petitioner, her evidence affidavit is filed as PW1 and Exs.A1 to A4 documents are marked.

4.Heard the learned Counsel for the petitioner.

5.The point for consideration is whether petitioner is entitled for the relief as prayed for.

6.POINT:

Petitioner is the natural mother of her minor daughter Samyuktha. The petition schedule property was purchased by her late husband through Ex.A1 and now she is not in a position to look after this property and also it is necessary for her to sell the same to meet the educational expenses of her son and this minor daughter. In support of her claim, she has filed her evidence affidavit in lieu of chief examination as PW1 and Exs.A1 to A4 documents are marked. Ex.A1 is certified copy of sale deed Doc.No.660/2008 dtd.27-02-2008. Ex.A2 is original

Death Certificate of her husband. Ex.A3 & A4 are Market Value Certificate and

Encumbrance Certificate.

7.Sec.29 of the Guardian & Wards Act only requires permission of the Court for sale of immovable property wherein minor’s interest is involved and the Court is only duty bound to enquire whether the transaction is necessary and whether it is for the benefit of minor.

G.O.P.No.1200 of 2016 Page No.3 of 4

8. The petitioner proposes to sell the entire petition schedule property, but the prospective purchasers are insisting for permission from the Court to the extent of 1/3rd share of her minor daughter Samyuktha, who is aged about 16 years. That apart, she is not in a position to protect this property, which are open plots. She has to meet the educational expenses of her son and this minor daughter. In that view of the matter, I am satisfied that the proposed sale of petition schedule property is in the best interest of the minor and the petitioner, being natural mother, has no adverse interest to that of her minor daughter.

Accordingly, I am inclined to permit the petitioner to sell the 1/3rd share of her minor daughter in the petition schedule property. The point is accordingly answered in favour of the petitioner.

9. In the result, the petition is allowed. The petitioner Smt.Y.Rama Devi, natural mother of her minor daughter Kum.Samyuktha, is appointed as her guardian with a permission to sell away 1/3rd share of her minor daughter in the petition schedule property, Plot bearing No.25, admeasuring 300 out of

Sy.Nos.200 & 201 of Kukntloor Village, Pedda Amberpet Gram Panchayat,

Abdullapurmet Revenue Mandal, R.R.District. The petitioner shall re-invest the sale proceeds in any immovable property or deposit in any Natiionalized Bank and use interest portion only towards education and other expenses of the minor, till she attains the age of majority.

(Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in the Open Tribunal on this the 27 th day of January, 2017.)

PRL.DISTRICT JUDGE

RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF PETITIONER:

G.O.P.No.1200 of 2016 Page No.4 of 4

PW1 - Smt.Yadagiri Rama Devi, petitioner

ON BEHALF OF RESPONDENTS: NIL

EXHIBITS MARKED

ON BEHALF OF PETITIONER:

Ex.A1 - CC of regd.sale deed dtd.27-02-2008 in Doc.No.660/2008 Ex.A2 - Original Death Certificate of Y.Sravan Kumar Goud Ex.A3 - Market Value Certificate dtd.26-10-2016 issued by SRO, Hyderabad East Ex.A4 - Encumbrance Certificate dtd.26-10-2016

ON BEHALF OF RESPONDENTS: NIL

PRL.DISTRICT JUDGE

RANGA REDDY DISTRICT.

O.S.No.1184 of 2016

Page No.1 of 3

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR

Present: A.Venkateshwara Reddy, Prl.District Judge.

Friday, the 27th day of January, 2017.

O.S.No.1184 of 2016

Between:

1. Smt.Sandamoni Yadamma, W/o.late Sandamoni Babaiah, Aged about 66 years, Occ: House-wife,

2. Sandamoni Raju, S/o.late Sandamoni Babaiah, Aged about 38 years, Occ: Pvt.Employee,

Both are R/o.H.No.9-1-15, Laxmiguda Village, GHMC Rajendranagar Circle, R.R.District, T.S. … Plaintiffs

AND

1. Koppula Amareshwar Goud, S/o.K.Sriramulu Goud, Aged about 43 yrs, Occ: Business, R/o.H.No.8-2-1, Mailardevpally, Rajendranagar Mandal, R.R.District.

2. All concerned. …Defendants

This suit is coming before me for a final hearing on 25-01-2017 in the presence of Mohd.Mazar Ali, Counsel for Plaintiffs, Sri V.Vinod Kumar, Counsel for defendant No.1 and upon hearing both sides, perusing the material on record and the matter having stood over for consideration till this day, this Court passed the following:-

JUDGMENT

Plaintiffs have filed this suit for declaration that they are absolute owners 1.

and possessors as the legal heirs of deceased pattedar late Sandamoni

Jangaiah, father of Sandamoni Babaiah and father-in-law of plaintiff No.1 and grandfather of plaintiff No.2 herein in respect of land admeasuring Ac.0-08 gts (968 sq.yards) out of Sy.No.35 and Ac.0-18 gts (2178 sq.yards) out of Sy.No.36, totally admeasuring Ac.0-26 gts (3146 sq.yards), situated at Laxmiguda Village,

O.S.No.1184 of 2016

Page No.2 of 3 under GHMC, Rajendranagar Cicle & Municipality, R.R.District with precise boundaries (hereinafter referred as ‘suit schedule property’).

Suit summons were served on the 1st defendant. A general notice was also 2.

published. 1st defendant has filed an admission written statement under Order

XII Rule 6 of C.P.C. None of the objectors appeared. Later, on behalf of plaintiffs, evidence affidavit of PW1 is filed and Exs.A1 to A3 documents are marked. Ex.A1 is the original Death Certificate of Sandamoni Babaiah. Exs.A2 and A3 are Encumbrance and Market Value Certificates.

The plaintiff No.2 as PW1 has testified that he has filed his evidence 3.

affidavit in lieu of chief examination. Plaintiff No.1 is the legally wedded wife of late Sandamoni Babaiah, who is the son of late Sandamoni Jangaiah, original pattedar and plaintiffs 1 & 2 are the only legal heirs of late Babaiah, who died on 12-4-1990 intestate. Suit schedule property belongs to late Babaiah and except the plaintiffs 1 & 2, there are no other legal heirs. Plaintiffs have also filed photo copies of pahani patrikas for the period 1989-90 and 2008-09, but they are not exhibited, as the certified copies are not filed. The uncontroverted pleadings in the plaint would establish that plaintiffs being the legal heirs of late Sandamoni

Babaiah, who died intestate, are entitled for declaration of their legal status.

Accordingly, I am inclined to accept the claim of the plaintiffs.

In the result, the suit is decreed, without costs, declaring the plaintiffs as 4.

legal heirs of late Sandamoni Jangaiah, father of Sandamoni Babaiah, who is the father-in-law of Plaintiff No.1 and grandfather of plaintiff No.2 herein and also declaring that they are the absolute owners and possessors of the suit schedule property.

O.S.No.1184 of 2016

Page No.3 of 3

Dictated to the Stenographer, transcribed by her, corrected and pronounced by

me in the Open Court on this the 27th day of January, 2017.

PRL.DISTRICT JUDGE,

RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF PLAINTIFF:

PW1 - S.Raju, 2nd plaintiff

ON BEHALF OF DEFENDANTS: NIL

EXHIBITS MARKED

ON BEHALF OF PLAINIFF:

Ex.A1 - Original Death Certificate of S.Babaiah dtd.19-4-1996 Ex.A2 - Encumbrance Certificate dtd.27-10-2016 Ex.A3 - Market Value Certificate dtd.1-11-2016

ON BEHALF OF DEFENDANTS: NIL

PRL.DISTRICT JUDGE,

RANGA REDDY DISTRICT.

O.S.No.1184 of 2016

Page No.4 of 3