Smt Aruna Sarika

1 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

IN THE COURT OF THE SESSIONS JUDGE,

KRISHNA DIVISION, MACHILIPATNAM

Present: - Smt. Aruna Sarika,

Sessions Judge,

Krishna, Machilipatnam

Friday, this the 4th day of April, 2025

SESSIONS CASE NO. 88 OF 2024

[On committal by the Judicial Magistrate of I Class, Bantumilli in PRC No.09/2023 in Cr.No.187/2023 of Bantumilli Police Station ]

Name of : The State: Represented by Sub Inspector of complainant Police, Bantumilli Police Station. Crime No. and PS : Cr.No. 187/2023 of Bantumilli Police Station

Name of accused : Havaldar Lakshmi, W/o. Suresh age 27 years, Nehrunagar, H/o. Nagannacheruvu Village, Bantumilli Mandal.

Charges : U/s.307 of Indian Penal Code

Plea of accused : Not guilty

Finding of Judge : Not guilty

Order or Sentence : IN THE RESULT, the accused is found not guilty for the offence punishable under Sections 307 of Indian Penal Code and accordingly she is acquitted under Section 235 (1) Cr.P.C for the said offence. The bail bonds of accused shall stand cancelled. M.Os. 1 and 2 and unmarked case property if any shall be destroyed after appeal time is over.

Case conducted by : Sri. L. Venkateswara Rao, Public Prosecutor.

Accused defended : Sri.Ch. Musalaiah, Legal Aid and defence by counsel

This case coming before me for hearing on 01.04.2025 in the presence of Sri. L.Venkateswara Rao, Public Prosecutor for State and of Sri.Ch. Musalaiah, Chief Legal Aid and defence counsel and after hearing 2 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

the counsel on both sides and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

The Sub Inspector of Police, Bantumilli Police Station, filed charge sheet against accused/Havaldar Lakshmi in Cr.No.187/2023 of Bantumilli

Police Station for the offence punishable under Section 307 of Indian

Penal Code.

2. The brief averments of the charge sheet are as follows:

“LW.1/Havaldar Suresh is resident of Nehrunagar H/o Nagannacheruvu

Village. Bantumilli Mandal. He married 11 years ago with the

Accused/Havaldar Lakshmi, R/o RCM colony, Kondapalli. They are eking their livelihood by doing agricultural coolie works and they have three children's, namely one daughter Pradepika, aged about 9 years, elder son

Mahonnata Varma aged about 7 years, Teja aged about 3 years. Since, 2 years, the accused Lakshmi has been maintaining a separate phone and talking with someone else with that phone and she had illegal affairs with several persons. When, LW.1/Havaldar Suresh asked the accused/Lakshmi about the phone, but she did not give proper reply. At about 20 days back, he caught red handedly while she was speaking over the phone with someone else, when he asked her that whom over the phone, she did not give any proper answer. Then, he informed to her relatives and then put this matter in the presence of village elders and they admonished his wife/accused. At that time, she agreed her mistake and promised not to repeat the same in the future. But she kept the issue in mind and used to scold him and his family members with nugatory words.

Finally, she decided to kill her husband with a view to continue her illegal affairs, intentionally she purchased a rat poison i.e. Ratol paste and kept secretly in her house. While the matter stood thus, on 30.07.2023 at about 19.30 hours, when the accused speaking over the phone with her paramour, then LW.1/Havaldar Suresh asked her about speaking over the 3 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

phone, but she did not give proper reply and on the same day at about 20.00 hours, accused/Lakshmi gave a tea to LW.1/Havaldar Suresh, while he was drinking half of the tea, got a different smell and thrown away.

Later, at about 21.00 hours, she offered food with chicken curry and while eating the food, he got the same smell as he received earlier. Then, he went to outside, meanwhile the accused Lakshmi thrown away something into the garbage. Then, LW.1/Havaldar Suresh went to there and found a rat poison tube i.e., Ratol paste, on that he asked the accused about the rat poison tube, then she stated that she mixed the rat poison in tea and dinner with a view to eliminate his hindrance. Due to fear, he screamed loudly then LW.3 to 6/Rachapudi Prabhudasu, T.Subbayya, Rachapudi

Prasad and Rachpudi Sujatha rushed to the scene of offence,

LW.1/Havaldar Suresh informed that the accused mixed rat poison in tea and dinner to eliminate him. Then LW3 to 6/Rachapudi Prabhudasu,

T.Subbayya, Rachapudi Prasad and Rachepudi Sujatha admonished the accused and they shifted victim LW.1/Havaldar Suresh to Srinivasa

Nursing home, Kalidindi and joined in the hospital for treatment. . Then, the accused fled away from that place. On 31.07.2023 at afternoon time on receiving the hospital intimation from the Medical

Officer/LW14/Dr.K.Rajesh Kumar Varma, Srinivasa Nursing Home,

Kalidindi, the then Sub Inspector of Police Bantumilli Police

Station/LW16/A.Pydibabu immediately proceeded and reached the

Srinivasa Nursing Home, Kalidindi, recorded the victim statement and then reached the Police station and registered the same as FIR in Cr.No.

187/2023 for the offence under Sec.307 of Indian Penal Code and took up investigation in this case. Later he examined the injured LW.1/Havaldar

Suresh and his mother LW2/Havaldar Dhanalakshmi. Again he visited the scene of offence along with mediators i.e., LW12 &13/Lakkapragada

Nageswara Rao and Tammuneedi Srinivas, prepared rough sketch of the scene of offence, got some observation report, seized the Ratol paste, 4 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

poison mixed chicken rice and one steel glass in the presence of mediators. Later he examined as many as nine witnesses i.e. LWs.3 to 11 and recorded their detailed statements U/s 161(1) Cr.P.C. On 01.08.2023, he arrested the accused/Havaldar Lakshmi and recorded her confession statement in the presence of Mediators, then forwarded the same to

Judicial Magistrate of I Class court, Bantumilli for judicial remand. The

Medical Officer, Srinivasa Nursing Home, Kalidindi/LW-14/Dr.K.Rajesh

Varma who examined and treated the injured person, issued his treatment certificate with his opining that the victim joined by the doubt that he took poison, and doing vomiting at Hospital and then antibiotics, antidotes and with medical management. The MO's were sent to RFSL, Vijayawada through letter of advice by SDPO, Machilipatnam. The Scientific officer/LW.15/D.Sujyothi Rani, Assistant Director RFSL, Vijayawada who conducted examination issued the report contending that MO's i.e. Items 1 to 3 are analyzed and Phosphide a rodenticide poison is found in all the three items i.e. 1. Rice, 2. Brown color substance, (Ratol Paste), 3.One steel glass. After completion of entire investigation LW.16/Sub Inspector of Police, Bantumilli Police Station filed the charge sheet against the accused for the offence punishable under Sec. 307 of Indian Penal Code.

3. The learned Judicial Magistrate of I Class, Bantumilli took the charge sheet on file against accused as PRC No.9/2023 for the offence punishable under Section Sec.307 of Indian Penal Code and on appearance of accused and after completing the formalities required under sections 207 and 209 Cr.P.C., the learned Magistrate committed the case to the Court of Principal District Judge-cum- Sessions Judge, Krishna at

Machilipatnam wherein it was numbered as S.C.88/2024.

4. On appearance of accused before the court and on hearing both sides, charge under Section Sec.307 of Indian Penal Code was framed 5 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

against the accused read over and explained to him in his vernacular language for which he pleaded not guilty and claimed to be tried.

5. In order to bring home the guilt of accused, the prosecution examined PWs.1 to 10 and marked Exs.P1 to P10 and also marked M.Os.

1 and 2. The prosecution has given up the examination of

LW.3/Rachapudi Prabhudas, LW.4/Tiruvedi Subbayya, LW.6/Rachapudi

Sujatha, LW.7/Munipalli Elisha and LW.15/D.Sujyothi Rani, Assistant

Director, RFSL, Vijayawada.

6. After completion of prosecution evidence, accused was examined under Section 313 Cr.P.C. with regard to the material circumstances and incriminating evidence appearing against her, but she denied the same.

No oral evidence is adduced on behalf of the accused but got marked

Ex.D.1 to D.3 on behalf of accused.

7. Heard the arguments of both the sides.

8. The learned Public Prosecutor argued that the evidence of PWs.1 to 5 and 7 and 8 clearly proves the case of the prosecution that the accused tried to kill PW.1 by mixing rat poison in the food which she served on the date of incident. The evidence of PW.9/doctor, who treated PW.1 in his nursing home, corroborated the evidence of PW.1 in all aspects that he gave treatment to PW.1 on suspension of taking rat poison. He further argued that the evidence of PWs. 2, 3 and 4 it clearly establishes that the accused want to get rid of PW.1 as he is restricting her freedom. He further argued that it was also elicited from the RFSL report that some poisonous substances are there in the seized material objects and this itself proves that prosecution case and thus the prosecution could establish the guilt of accused and hence prayed to convict the accused for the charges framed against him.

6 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

9. Per contra, the learned counsel for accused would argue that the prosecution failed to prove its case. In the complaint of PW.1 it was mentioned that his wife gave tea after 8.00 P.M., but whereas in his evidence he stated at about 7.30 P.M., his wife gave tea to him. He further argued that there is no evidence to prove that the accused mixed the poisonous substance in the served food of PW.1. He further argued that

P.W.1 and PW.2 are residing in separate houses. He further argued that the prosecution does not examine children of the accused and PW.1. He further argued that vomit of accused was not collected by PW.10 and further, the alleged Sagarika with whom the accused stated that she wants to get rid of PW.1 was not examined by the prosecution. No witnesses have stated that Sagarika stated to them that accused expressed her motive to get rid of PW.1. Further, the prosecution failed to prove, with whom the accused is conversing over phone, for the first time PW.1 stated

before the court that she was conversing with her brother in law. He

further argued that PW.6 stated in his evidence that no material objects were marked in his presence and not recorded the statement of witnesses in his presence. M.O.s 1 and 2 are not affixed with punch slips. He further argued that the food vomit was not collected by the investigating officer and was not sent to the RFSL for examination. He further argued that

PW.7 turned hostile to the prosecution case and the evidence of PW.8 also not supported the case of the prosecution. The evidence of PW.9 is not corroborating with the evidence of PW.1. He further argued that Ex.P.4 intimation later dt.31.07.2023 contents are mentioned to the information given by PW.1. Finally he rests his arguments and prays the court to acquit the accused.

10. Now the points for determination are

1. Whether the prosecution could bring home the guilt of accused for the charge framed against her for the offence punishable under Section Sec.307 of Indian Penal Code beyond all or any reasonable doubt?

7 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

2. To what order?

11. POINT No.1:-

(a) The specific accusation made against accused as per the prosecution case is that, the marriage of PW.1 was performed with the accused about 13 years back and they were blessed with a daughter and two sons. The accused developed illegal intimacy with her brother-in-law, who is son of her paternal aunt and used to converse with him on phone hours together. Whenever, PW.1 asked her she did not give any reply and then PW.1 placed the matter before the elders and they admonished the accused and she tender apology stating that she will never repeat the same again. Keeping the same as grudge in mind on 30.07.2023 at about 7.30 P.M., accused tried to kill her husband i.e., PW.1 by mixing the rat poison in the tea and in the chicken curry which he had. On noticing the foul smell PW.1 thrown away the food and called, his relatives and they shifted him to Srinivasa Nursing Home, Kalindindi for treatment.

(b) As already referred supra, in order to substantiate its case, the prosecution examined PWs.1 to 10 and marked Exs.P.1 to P10 besides

M.Os.1 and 2. Let us now consider the said evidence adduced by the prosecution to know whether it could establish the guilt of accused in commission of the charged offence beyond all or any reasonable doubt.

(c) PW.1 is the defacto complainant. PW.2 is the mother of PW.1, PW.3 to 8 are the eye witness to the incident proper, PW.9 is the medical officer who treated PW.1 and PW.10 is the investigating officer.

(d) Havaldar Suresh, S/o. Late Rajarao who is the defacto complainant and husband of the accused was examined as P.W.1. He deposed that he is resident of Nehru Nagar, Nagannacheruvu Village,

Bantumilli Mandal and he is an Agricultural worker on daily wages. He 8 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

deposed that Accused is his wife, PW.2 is his mother and he knows PW.3,

PW.4, PW.5, PW.7 and PW.8, LW3/Rachapudi Prabhudasu, LW4/Tiruvedi

Subbayya, LW6/Rachapudi Sujatha, LW7/Munipalli Elisha and

LW11/Jupudi Mohanrao. He further deposed that about 13 years back he married the accused and they blessed with one daughter and two sons.

Later the accused developed illegal intimacy with her brother-in-law who is son of her paternal aunt and used to converse with him on phone hours together and whenever he asked her, she did not give any reply. He deposed that he intimated about it to her mother and brother, but they did not heed his words. Then, he placed the matter before their village elders viz., LW5/Rachapudi Prasad, LW7/Munipalli Elisha and LW8/Munipalli

VijayKumar, on that they called the accused and admonished her and she tender apology stating that she will never repeat the same again. He deposed that on the apology tendered by accused, the elders sent her to their house to her matrimonial fold. Few days thereafter, she again started the same and again he asked her why she is doing like that, but she did not give any reply. With regard to the incident, he deposed that on 30.07.2023 at about 07.30 PM accused served Tea to him and he observed some foul smell in the tea and thrown the tea after taking one or two sips. Then she asked him to have dinner with chicken curry. He deposed that he took two bites of rice with chicken curry and felt different taste and then he vomited. He deposed that knowing the same his mother

PW2/Havaldar Dhanalakshmi, LW3/Rachapudi Prabhudasu (brother) and

LW5/Rachapudi Prasad (elder uncle) came to him and questioned the accused. He further deposed that the accused with a fear thrown rat poison tube into garbage at the corner to the outside of his house. His mother PW2/Havaldar Dhanalakshmi, LW3/Rachapudi Prabhudasu (brother) and LW5/Rachapudi Prasad (elder uncle) again asked her about it, on that she stated that he is not allowing her to live with freedom and he is hurdle to her and if he dies she can live with freedom. Then 9 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

LW3/Rachapudi Prabhudasu and LW5/Rachapudi Prasad took PW.1 to

Srinivasa Nursing Home, Kalidindi for treatment. There the doctor gave treatment by removing the swallowed food with a tube. He deposed that police, Bantumilli Police Station came to Hospital and recorded his statement. The statement of PW1, dated 31.07.2023 was examined as

Ex.P.1. Thereafter, the Police again examined him and recorded his statement. PW.1 identified Ratol paste tube shown to him as the same was mixed by accused in tea, rice and chicken curry, which she served to him. He also identified one small steel glass shown to him as the same was used by accused in serving tea to him. Ratol Paste tube and Small

Steel Glass are marked as M.O.1 and M.O.2 respectively. In the cross examination he admitted that accused was 16 years old when he married her and at the time of his marriage, nothing was given by her parents to him. He deposed that the registration number of his Hero Honda Glamour motorcycle is 1804. He admitted that he is having two houses adjacent to each other and that he, accused and their three children were resided in one house and his mother and his paternal grandmother used to reside in another house. He admitted that one could not see the things happening in his house from another house of his. He admitted that in

Ex.P1/statement he stated before the police that accused have been conversing with another person on a phone since, two years, but he did not give the details of said person and so also the phone number to the police. He further admitted that he did not handover said phone to the police. He admitted that in Ex.P1/statement he again stated to the police that accused have been conversing with another person on a phone 10 days ago, but he did not give the details of said person and so also the phone number to the police. He deposed that himself, accused, his mother, his paternal grandmother and his three children were living together in his house. He deposed that he stated to the police that himself, accused, his mother, his paternal grandmother and his three children were 10 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

living together in his house. He also admitted that in Ex.P1/statement he also stated to the police that accused was conversing with another person on a phone on 30.07.2023 at 07.30 PM, but he did not give the details of said person and so also the phone number to the police. He deposed that he does not remember whether he had stated the names of elders of accused to whom he informed about the accused conversing with another person on phone to the police or not. He deposed that he could identify his motorcycle in a photograph if shown to him. The learned Legal Aid defence Counsel shown photographs of motorcycle to the witness and the witness confronted that the motorcycle in the photographs is of him. He also identified himself in one photograph. The photographs (3 in number) were marked as Ex.D.1. The learned Legal Aid Defence Counsel shown another photograph to the witness and he deposed that he does not know the person in the photograph and later the Legal Aid Defence Counsel shown another two photographs to the witness and he identified himself and his mother in one photograph and himself in another photograph. The photograph in which PW1 and his mother were present was marked as

Ex.D.2 and the photograph in which PW1 is present was marked as

Ex.D.3. He admitted that accused filed a report against him that he tried to cut the hands of accused with an axe causing cut injuries to her hands, on that a case was registered and the same is pending in Crime No.283/2023 of Bantumilli Police Station before the Judicial Magistrate of I Class Court,

Bantumilli. He does not remember the case number. He admitted that he had not stated before the police either in Ex.P1 or in his 161 Cr.P.C.

statement that accused was conversing with her brother-in-law, who is son of her maternal aunt. He admitted that he has not stated before the police either in Ex.P1 or in his 161 Cr.P.C. statement after taking two bites of rice with chicken curry he vomited. He deposed that the distance between his village and Srinivasa Nursing Home is about 8 Kilometers and the distance between his village and Government General Hospital, 11 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

Machilipatnam is about 35 Kilometers. There is a Primary Health Centre in

Bantumilli which is nearer to their village i.e., about 12 Kilometers. The rest of the cross examination is nothing but suggestions to the effect that he is having Ac.4-00 cents of land, out of it Ac.02-00 cents is agricultural land and in Ac.02-00 cents there is a Prawns tank and that said Hero

Honda Glamour motorcycle was presented by parents of accused to him

and that he is having illegal intimacy with the woman by name Radha @

Nagalakshmi, R/o Velugolu, who is in the photograph that was shown to him by the Learned Legal Aid Defence Counsel and that Ex.D2 and D3 photographs were taken at the time when the village elders of Velugolu village caught him and placed him before the police with regard to he is having illegal intimacy with said Radha @ Nagalakshmi and he settled the issue by depositing ₹1,00,000/- (Rupees One Lakh only) in the name of daughter of said Radha @ Nagalakshmi in the presence of village elders and took said Radha @ Nagalakshmi with him and since then he has been living with said Radha @ Nagalakshmi and that he got filed a false case against the accused with all false allegations by planting M.O.1 and M.O.2 in order to get rid of her as he intended to continue his illegal intimacy with said Radha @ Nagalakshmi and that he did not state before the police either in Ex.P.1 or in his 161 Cr.P.C statement that he placed the issue of accused before their village elders viz., LW5/Rachapudi Prasad,

LW7/Munipalli Elisha and LW8/Munipalli Vijay Kumar, on that they called the accused and admonished her and she tender apology stating that she will never repeat the same again and that M.O.1 and M.O.2 are purchased by him in the market and handed over the same to the police as if the same were used by accused and that the accused did not mix Ratol paste (poison) in rice and chicken curry and she along with their children also ate the same food with him and nothing was happened to anyone of them and that his family members used to take treatment in Srinivasa Nursing

Home, Kalidindi if they fell sick and that he got filed a false criminal case 12 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

against the accused only to get rid of her and her children as he is having illegal intimacy with said Radha @ Nagalakshmi and that the accused did not commit any offence much less the offence falsely levelled against her by him and PW.1 denied the same as not true.

(e) Havaldar Dhanalakshmi, W/o. Late Rajarao who is the mother of PW.1 and mother-in-law of accused was examined as PW.2. She deposed that she is resident of Nehru Nagar, Nagannacheruvu Village,

Bantumilli Mandal. She is an Agricultural worker on daily wages. She deposed that PW1 is her son and Accused is her daughter-in-law and wife of PW1. She deposed that she knows LW3/Rachapudi Prabhudasu,

LW4/Tiruvedi Subbayya, and other witnesses who are her villagers. She deposed that the marriage between accused and her son/PW1 was performed about 13 years ago and they were blessed with one daughter and two sons and they lived happily for some period. Thereafter, accused developed illegal intimacy with another man and she used to converse with him on phone. She deposed that the Accused informed to one

Sagarika who is their neighbour that PW1 has been harassing her suspecting her fidelity saying that she is conversing with another man on phone frequently and she wants to get rid of her husband. She deposed that while accused was talking with said Sagarika he heard it and she admonished the accused why she is saying all these things to said

Sagarika. She deposed that on hearing their loud voices, their neighbours

LW7/Munipalli Elisha, LW8/Munipalli Vijaykumar, LW9/Chilakanti

Pichamma, Munipalli Pedda Bujji and Munipalli Chinna Bujji came to them and admonished the accused. She deposed that then they placed the same before the elders and the elders pacified the accused and sent her to lead happy marital life with her husband/PW1. She deposed that after 10 days of above incident, the accused again started conversing with another man on phone. She deposed that at about one year two or three 13 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

months ago on one day in the evening hours at about 07.30 PM or 08.00

PM, the accused gave tea to her husband/PW1, then PW1 thrown away the tea. Later she started asking him to have dinner. Then she served rice with chicken curry to PW1, after having two or three bites of rice with chicken curry he felt some smell and vomited. Then she went to PW1 and asked him what happened and he was vomiting. She further deposed that then he stated that accused tried to kill him by mixing poison in food. She deposed that the accused initially tried to kill her and her mother-in-law by giving poison to them and later she tried to kill her son. She deposed that she and LW3/Rachapudi Prabhudasu took the PW1 to the Hospital for treatment. She deposed that Police came to Hospital and noted down by asking PW1 as to what happened. She deposed that Police enquired her and she stated to them that accused tried to kill them by giving rat poison and so tried to kill PW1 by giving rat poison to him by having illegal intimacy with another man. In the cross examination she admitted that she and her mother-in-law are residing in one house and her son/PW1 along with accused and his children live in another house, which is adjacent to her house. She deposed that accused used to prepare food for all of them.

She deposed that she started cooking food separately for her and her mother-in-law, as her mother-in-law was not able to eat the food prepared by Accused. She deposed that she herself have been doing all domestic work in their house. Learned chief legal aid defence counsel shown Ex.D2 photograph to the witness and she confronted that in the said photograph she and her son/PW1 were present. Ex.D2/photograph was taken in

Velugolu Village. She admitted that Ex.D2 was taken when her son PW1 was said to be brought one woman with him and the same was place

before the police by the village elders. She deposed that she did not see

the said woman. The learned Chief Legal Aid Defence Counsel shown a photograph of a woman to the witness and the witness stated that she does not know who she is. She does not know whether money was paid 14 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

by PW1 to settle the issue in Velugolu Village. She does not know how much time they were present in Panchayat Office where Ex.D2 was taken as she was in Auto with Low Blood Pressure. She admitted that she did not state before the police in her 161 Cr.P.C. statement that the accused tried to kill her and her mother-in-law by giving rat poison in food. She deposed that she did not state before the police about the particulars of the person with whom the accused conversing on phone. She deposed that they never went to Hospital whenever they fell sick and they used to take medicine from the medical shop. The rest of the cross examination is nothing but suggestions to the effect that PW1 is still living with said woman and that a false case was got filed against the accused as PW1 is having illegal intimacy with said woman and to get rid of accused and she did not state before the police in her 161 Cr.P.C. statement that accused gave tea to PW.1 and he thrown it away after sipping for one or two times and that accused never tried to kill her and her mother-in-law and so also her husband/PW1 as deposed by her in her chief examination and she intentionally deposing false against the accused to get rid of her at the instance of PW1 and that LW14/Dr.K. Rajesh Kumar Varma, is their family doctor and they used to visit him in Srinivasa Nursing Home whenever they need medical-aid and PW.2 denied the same as not true.

(f) Rachapudi Prasad, S/o. Yesudasu, Chilakanthi Pichamma,

W/o. Late Ranga Rao, Munipalli Vijaya Kumar, S/o. Sundara Rao, Jupudi

Mohana Rao, S/o. Kutumba Rao, Munipalli Abraham, S/o. rajaratnam who arrayed as eye witnesses to the incident proper were examined as

PW.3, 4, 5,7 and 8 respectively. PW.3 deposed that he is serving as

Pastor. He knows PW1, PW2, LW3/Rachapudi Prabhudasu, LW4/Tiruvedi

Subbayya, LW6/Rachapudi Sujatha, LW7/Munipalli Elisha, other witnesses who are his villagers and the accused. He deposed that the marriage between accused and PW1 was performed about 11 to 12 years 15 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

ago and they were blessed with one daughter and two sons. He deposed that since their marriage accused had been harassing PW1 by having illegal intimacy with two or three others. He deposed that PW1 placed about her illegal intimacy and roaming with other persons before the elders including him, PW.8 and in the said mediation on her behalf her mother, her brother, her sister-in-law, her elder paternal uncle and her cousin were present. He deposed that in the said mediation one Pulivarthi

Eziya gave evidence stating that accused came to her house along with one male person and she admonished her and did not allow the accused into her house. He deposed that they the elders admonished and advised the accused not to repeat such type of acts and lead marital life with PW1.

He deposed that even after they admonished and advised her, the accused did not change her attitude and continued to make conversation with others on phone. Again, she was brought to him and he again requested and advised her not to repeat. Later the accused started friendship with one Munipalli Sagarika and expressed her intention to take away the life of PW1 before her and on that process, one day the accused gave tea by mixing rat poison to PW1 and had that tea. He further deposed that later on the same day she tried to serve food to PW1 by mixing rat poison, but PW1 on seeing her mixing rat poison in the food he did not take the food and raised hues. He deposed that the said incident was took place on 30.07.2023 at about 09.00 PM to 10.00 PM. He deposed that on that day his son LW3/Rachapudi Prabhudasu,

LW4/Tiruvedi Subbayya, PW.4 and PW2 took the PW1 to Srinivasa

Hospital situated at Kalidindi Center. Immediately they gave complaint to police when PW1 was in the Hospital, then police came to the house of

PW1 and accused situated at Nehru Nagar, Nagannacheruvu village. He deposed that police saw the food mixed with rat poison and questioned the accused, then she admitted her guilt of mixing rat poison in tea and food i.e., rice. He deposed that police noted down what all stated by the 16 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

accused to them on early hours i.e., 05.00 AM to 06.00 AM on 31.07.2023.

He deposed that police examined him and recorded his statement. In the cross examination he deposed that he is not having license to serve as

Pastor. He admitted that the marriage of accused and PW1 was performed in his presence. However, he did not act as Pastor to their marriage. He admitted that PW1 is son by relation to him and that

LW3/Rachapudi Prabhudasu and LW.6/Rachapudi Sujatha are his son and daughter-in-law. He deposed that he did not verify whether the accused is major or not by the time of her marriage. He does not know that accused was 16 years old at the time of her marriage with PW1 as marriage alliance was made by PW1 and his family members. He further deposed that his house is situated after three houses to the house of PW1 in another street. He admitted that the house of PW1 is not visible from his house. He deposed that he never saw accused conversing with another person on phone or roaming with other men. He admitted that he did not witness the accused while she was mixing rat poison in tea or in food i.e., rice. He deposed that PW1 is having prawns tank in Ac.2-00 cents. After saying so, witness again says that said prawns tank stands in the name of paternal grandmother of PW1 and said tank was given on lease by her to others. He does not know to whom the paternal grandmother of PW1 gave prawns tank on lease. The rest of the cross examination is nothing but suggestions to the effect that he did not state before the police in his 161

Cr.P.C. statement that accused harassed PW1 and that he did not state

before the police in his 161 Cr.P.C. statement that accused is having

illegal intimacy with two or three persons and that he did not state before the police in his 161 Cr.P.C. statement that “PW1 placed about her illegal intimacy and roaming with other persons before the elders including him,

LW10/Munipalli Abraham and in the said mediation on her behalf her mother, her brother, her sister-in-law, her elder paternal uncle and her cousin were present, in the said mediation one Pulivarthi Eziya gave 17 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

evidence stating that accused came to her house along with one male person and she admonished her and did not allow the accused into her house, then the elders admonished and advised the accused not to repeat such type of acts and lead marital life with PW1, even after they admonished and advised her, the accused did not change her attitude and continued to make conversation with others on phone, again she was brought to him and he again requested and advised her not to repeat, later the accused started friendship with one Munipalli Sagarika and expressed her intention to take away the life of PW1 before her and on that process, one day the accused gave tea by mixing rat poison to PW1 and had that tea, later on the same day she tried to serve food to PW1 by mixing rat poison, but PW1 on seeing her mixing rat poison in the food did not take the food and raised hues, the said incident was took place on 30.07.2023 at about 09.00 PM to 10.00 PM, on that day his son LW3/Rachapudi

Prabhudasu, LW4/Tiruvedi Subbayya, PW.4 and PW2 took the PW1 to

Srinivasa Hospital situated at Kalidindi Center, immediately they gave complaint to police when PW1 was in the Hospital, then police came to the house of PW1 and accused situated at Nehru Nagar, Nagannacheruvu village, Police saw the food mixed with rat poison and questioned the accused, then she admitted her guilt of mixing rat poison in tea and food i.e., rice, Police noted down what all stated by the accused to them on early hours i.e., 05.00 AM to 06.00 AM of 31.07.2023”. and that he is deposing false to help the PW1 as he is son by relation to him and that he never acted as elder to the mediation conducted to pacify the allegation against accused made by PW1 and that PW1 brought one Nagalakshmi who is having two children to his house, on that accused made objection and that therefore PW1 got filed a false case against the accused with all false and baseless allegations that she is having illegal intimacy with other men and that he is intentionally deposing false to support the case of PW1 and PW.3 denied the same as not true.

18 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

(g) Coming to the evidence of PW.4, she deposed that she is resident of Nehru Nagar, Nagannacheruvu Village, Bantumilli Mandal. She knows

PW1 to PW3, other witnesses who are her villagers. She deposed that she also knows the accused. She deposed that the marriage between accused and PW1 was performed about 12 to 13 years ago and they blessed with one daughter and two sons. She deposed that since their marriage accused and PW1 are not in cordial relation as the accused used to converse with other men on phone. She further deposed that PW1 used to beat the accused and vice-versa and that PW1 dragged the phone of accused while she was conversing with another on phone, then the matter was placed before PW.8 and in the mediation, accused tendered apology and promised not to converse with other on phone again. She deposed that PW2 heard the conversation between accused and one Sagarika that accused intend to get rid of PW1 as he is hurdle to her enjoyment. She deposed that this incident was occurred before the matter was placed

before PW.8, who is village elder. She deposed that she, LW7/Munipalli

Elisha and PW8 went to the house of accused and PW1, admonished the accused and she promised not to repeat the same. Few days thereafter, she and other neighbours heard the hues from the house of PW1, then they all went there and found PW1 vomit food with chicken curry. Then

LW3/Rachapudi Prabhudasu and others took the PW1 to Hospital situated at Kalidindi. She deposed that she came to know through PW1 that accused mixed rat poison in tea, food and chicken curry. She deposed that on the next day morning Police came to the house of PW1 and accused. He deposed that police examined her and recorded her statement. In the cross examination she deposed that she is resident of

Singarayapalem and her own house is situated in Main road of

Nagannacheruvu village and she is also having a son. She deposed that she has been residing along with her family members in the house of

Mede Raja on rent and the said house is situated three houses after the 19 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

house of PW1 and accused. She deposed that she is native of Nehru

Nagar, Nagannacheruvu village. Her son used to visit her frequently. She does not know who is Nagalakshmi, R/o Velugolu village and that she introduced said Nagalakshmi to PW1 and they developed illegal intimacy and on that PW1 has been paying my house rent. The rest of the cross examination is nothing but suggestions to the effect that her son and daughter-in-law left her and not visiting her as she is interfering in others family affairs and making nuisance. She admitted that she has not stated

before the police in her Sec.161 Cr.P.C. statement that since their

marriage accused and PW1 are not in cordial relation as the accused used to converse with other men on phone, PW1 used to beat the accused and vice-versa. She does not know the person(s) and their particulars with whom accused used to converse on phone. She deposed that Police seized three phones i.e., two small cell phones and a watch phone from the accused. She admitted that she has not witnessed when the accused served tea to PW1, cooking food and serving food with chicken curry to

PW1. She does not remember whether she had stated before the police in her 161 Cr.P.C. statement that when they went to the house of PW1 they found vomit of PW1 in his house. She admitted that she came to know about mixing of rat poison in tea and food with chicken curry and serving the same to PW1 by accused through PW1 and PW2. She admitted that

PW1 and LW3/Rachapudi Prabhudasu accompanied her to the Court on the date of giving her evidence and she herself introduced said

Nagalakshmi to PW1 and that she is deposing false at the instance of

PW1 to help him and that PW1 got filed the present criminal case against accused with all false and baseless allegations in order to get rid of accused and that she is intentionally supporting said false case of PW1 and PW.4 denied the same as not true.

(h) Coming to PW.5, he deposed that he is resident of Nehru

Nagar, Nagannacheruvu Village, Bantumilli Mandal. He knows PW1 to 20 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

PW4, and other witnesses who are his villagers. He deposed that he knows the accused. He deposed that the marriage between accused and

PW1 was performed about 12 years ago and they blessed with one daughter and two sons. He further deposed that initially PW1 and accused lead happy marital life after their marriage. Later the accused used to converse with others on phone and a quarrel took place between PW1 and accused. On that PW1 placed the same before the village elders and village elders namely LW10/Munipalli Abraham and so many others villagers conducted mediation. In the said mediation ten persons were present on the side of accused and accused tendered apology by falling on feet of PW1 and promised not to repeat the same. He further deposed that even thereafter she did not change her attitude and he came to know that PW2 heard the conversation between accused and one Sagarika and heard the accused expressing her intention to get rid of PW1 as he is hurdle to her activities, PW2 admonished accused and a quarrel took place and at the time of said quarrel PW4 and LW7/Munipalli Elisha were present and they also admonished the accused. He deposed that one week thereafter, at about 09.00 PM, while he was having dinner, he heard hues from the house of PW1 and accused, then he went to their house and enquired with the persons who were present there as to what happened and then they informed him that accused mixed rat poison tube in tea and gave it to PW1 and again she served food to PW1 by mixing rat poison and he vomited. He deposed that this incident was took place at about one and half year ago and by the time he went to the house of PW1, accused, PW2, LW3/Rachapudi Prabhudasu, LW4/Tiruvedi Subbayya,

LW6/Rachapudi Sujatha and others were present there and they all admonished accused. He deposed that immediately, PW1 was taken to

Hospital by LW3/Rachapudi Prabhudasu, LW4/Tiruvedi Subbayya and

LW6/Rachapudi Sujatha. He deposed that then he left the house of PW1 and on the next day, Police examined him and recorded his statement. In 21 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

the cross examination he deposed that PW1 is his brother-in-law in relation and he is a distant relative to him. He knows some of the issues took place in the house of PW1, but not all. He knows only the issues with regard to conversation of accused on phone. He deposed that he is not an eyewitness to the conversation of accused on phone calls and he does not know with whom she was conversing. He deposed that he does not know personally whether accused served tea by mixing rat poison and so also he does not know whether accused cooked food and served it to PW1 by mixing rat poison. He admitted that he has not stated before the police in his 161 Cr.P.C. statement that 10 persons were present on the side of accused in the mediation. After deposing so, witness volunteered that police did not ask him about it. He admitted that he did not state before the police in his 161 Cr.P.C. Statement that accused tendered apology in the mediation by falling on feet of PW1 and that he also not stated before the police in his 161 Cr.P.C. statement about the exact date and time when the incident proper was took place. He admitted that he is not family elder to the family of PW1 and accused, he does not know the age of accused at the time of her marriage and other marriage related issues that took place at and after the marriage of accused with PW1. He deposed that police examined on the next day evening of alleged incident proper at the house of PW1 and noted down what he stated. The rest of the cross examination is nothing but suggestions to the effect that he does not know anything about this case and that he was not present at the time of alleged incident proper or at the time of alleged mediation or at the time of alleged quarrel between accused and PW2 as deposed by him and that he cited as witness in this case as he is neighbour and distant relative to PW1 at the instance of PW1 and that he is deposing false and PW.5 denied the same as not true.

(i) Coming to the evidence of PW.7, he deposed that he is resident of

Nehru Nagar, Naggannacheruvu village, Bantumilli Mandal. He deposed 22 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

that he knows PWs. 1 to 5 and other witnesses as they are his villagers.

He deposed that he knows the accused. He deposed that accused used to buy groceries from his shop. He does not know anything about this case.

He deposed that police did not examine him and recorded his statement.

As P.W.7 turned hostile to the prosecution case, the learned Public

Prosecutor with the permission of the Court though cross-examined him, but, failed to elicit that he stated before the police that on 31.07.2023 the

Sub Inspector of Police, Bantumilli Police Station examined him and recorded his statement and he has stated before him as in his 161 Cr.P.C.

statement that was marked as Ex.P.3 to the effect that, “I am resident of

Nehru Nagar, Nagannacheruvu Village, Bantumilli Mandal, I am running a

Grocery shop in my village, I have no knowledge about the disputes between accused and PW1, one month prior to the incident proper accused came to my shop to purchase vegetables and groceries and asked him to give ratol poison tube by saying there are so many rats in her house, believing her words he gave one ratol poison tube to her, later he came to know that on 30.07.2023 at about 09.00 PM accused mixed ratal poison in tea and food and served the same to her husband, then his mother Dahanalakshmi, Prabhudas and Subbayya together joined him in

Srinivasa Nursing Home at Kalidindi”.

(j) Coming to the evidence of PW.8 he deposed that he is resident of

Nehru Nagar, Nagannacheruvu Village, Bantumilli Mandal. He knows PW1 to PW5 and PW7, LW3/Rachapudi Prabhudasu, LW4/Tiruvedi Subbayya,

LW6/Rachapudi Sujatha and LW7/Munipalli Elisha and accused. He deposed that the marriage between accused and PW1 was performed about 11 years ago prior to the date of incident and they are having two sons and one daughter. He deposed that accused and PW1 used to quarrel with each other with regard to conversations of accused with others on phone. At one instance, the relatives of Accused brought accused to him and it was confirmed by the villagers that accused is 23 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

having illegal intimacy with others and she used to converse with others on phone, then the relatives of accused admonished her and promised that she will not repeat the same and sent the accused to the house of

PW1. He deposed that the reason for disputes is behaviour of accused.

He further deposed that some days thereafter i.e., on 30.07.2023 at about 09.00 PM, PW2, LW3/Rachapaudi Prabhudasu, LW4/Tiruvedi Subbayya came to him by weeping and informed that accused given poison to PW1 and he is in critical condition. Then he sent them along with PW1 to

Srinivasa Nursing Home, Kalidindi. He deposed that on the next day morning police came to the house of accused and PW1 and enquired him, on that he had shown the house of accused to them and he said them that he sent PW1 along with PW2, LW3/Rachapaudi Prabhudasu,

LW4/Tiruvedi Subbayya to Srinivasa Nursing Home, Kalidindi. He deposed that he does not know what the police written. In the cross- examination he deposed that PW1 is not his relative. He was not elected as village elder by anyone. He deposed that he did not state to the police that “Accused and PW1 used to quarrel with each other with regard to conversations of accused with others on phone, at one instance, the relatives of Accused brought accused to him and it was confirmed by the villagers that accused is having illegal intimacy with others and she used to converse with others on phone, then the relatives of accused admonished her and promised that she will not repeat the same and sent the accused to the house of PW1”, as deposed in his chief examination.

He deposed that he never witnessed the accused conversing with others on phone and he never saw her having intimacy with any other man. The rest of the cross examination is nothing but suggestions to the effect that he never acted as village elder for the disputes between accused and

PW1 and that the relatives of accused never approached him to pacify the disputes as deposed by him in his chief examination and that he is giving 24 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

false evidence to help PW1 as he is his nephew in relation and PW.8 denied the same as not true.

(k) Lakkapragada Nageswara Rao, S/o. Rammohana Rao who arrayed as mediator at the time of observation report and arrest of the accused was examined as PW.6. He deposed that he has been working as Village

Revenue Officer, Amudalapalli Village since three months. Previously, he worked as Village Revenue Officer, Nagannacheruvu Village from the year 2019 to September, 2024. He deposed that on 31.07.2023 at about 05.50

PM, on the request of Sub Inspector of Police, Bantumilli Police Station, he went to the scene of offence situated at house of PW1 and accused in

Nehru Nagar, Nagannacheruvu village and by the time he went there,

LW.13/Tammuneedi Srinivas, Sub Inspector of Police, Bantumilli Police

Station, constables and villagers were present there. He deposed that Sub

Inspector of Police, Bantumilli Police Station, he and LW.13/Tammuneedi

Srinivas observed the scene of offence and found one steel tea glass/M.O.2 with some tea powder, plate with chicken curry mixed rice at scene of offence. It was said by villagers that rat poison was mixed in chicken curry mixed rice and that the person who took that food was taken to Hospital. He deposed that the police seized steel glass and chicken curry mixed rice and then they searched for rat poison, which said to be mixed in food; police brought rat poison tube saying that they found it in the bushes backside to the house of PW1. The police seized the said tube. Photographs of the scene of offence were taken and rough sketch was also prepared. Then he reduced scene observation report into writing.

He deposed that he, LW.13/Tammuneedi Srinvas and Sub Inspector of

Police, Bantumilli put their signatures on scene observation report. The scene observation report dated 31.07.2023 at 05.50 PM., was marked as

Ex.P.2. Ratol poison tube and small steel glass were marked as M.O.1 and M.O.2 respectively. He further deposed that on 01.08.2023 at about 06.00 AM he, LW13/Tammuneedi Srinivas, villagers of Nagannacheruvu 25 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

village, Sub Inspector of Police, Bantumilli Police Station and police staff went near to Z.P.High School, Nehru Nagar, Nagannacheruvu. There the police apprehended the accused and she confessed her guilt of commission of this offence. Then he prepared mediators report including confession of accused. Then, Police arrested her and took her to Police

Station. He further deposed that he, LW13/Tammuneedi Srinivas, Sub

Inspector of Police, Bantumilli Police Station and accused put their signatures on said mediators report. After deposing so, witness identified the accused, who is present in the Accused dock as the person whom the police arrested on 01.08.2023. In the cross examination he deposed that on 31.07.2023 when he was present in Mallampudi village, Police phoned him and asked him to come to scene of offence for scene observation. He deposed that it was at about 04.30 PM. The distance between the places where he present in Mallampudi village and the scene of offence is about 5 Kilometers and it took 15 minutes to reach there. He deposed that he has not obtained any written permission from his superiors to attend scene observation as mediator. He deposed that he had not entered the visit of scene of offence on 31.07.2023 in his movement register. Except him, no other Revenue Officials were present in Nagannacheruvu village. He deposed that on 31.07.2023 police did not examine the witness(s) in his presence at scene of offence and not recorded any statements. He admitted that he came to know about the case facts and facts related to scene of offence through Police and that Ex.P2/scene observation report does not disclose that he himself prepared Ex.P2/scene observation report and it does not contain his signature as a scribe. He admitted that there is no punch slip affixed to M.O.1 and M.O.2. He admitted that in Ex.P2/scene observation report there is no mention about descriptive particulars of plate and the food found in it. He further admitted that in Ex.P2/scene observation report there is no mention that tea and food was fallen on the ground and so also substance of vomit on the ground. He admitted that in 26 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

Ex.P2/scene observation report there is no mention that they found the scene of offence with disturbed articles thereon to show that a galata took place there. He admitted that in mediators report dated 01.08.2023 at 06.00 AM there is no mention that the same was scribed by him, he was present there at that time and his signature is not there as a scribe of it.

The rest of the cross examination is nothing but suggestions to the effect that Ex.P2/Scene observation report was prepared in the Police Station and that no scene observation was conducted on 31.07.2023 at 05.50 PM in his presence and in the presence of LW13/Tammuneedi Srinivas as deposed by him and that he put his signature on it in the Police Station itself and that there is a difference in the writing underneath his signature and the contents of scene observation report and that therefore

Ex.P2/scene observation report was not scribed by him and there is a difference in the writing underneath his signature and the contents of mediators report dated 01.08.2023 at 06.00 AM, and that mediators report was not scribed by him and that M.O.1 and M.O.2 are not seized by the police in his presence and that they were planted for the purpose of this case and that he identified as seized property in this case as they were now shown to him and that on 01.08.2023 at 06.00 AM he,

LW13/Tammuneedi Srinivas, Sub Inspector of Police, Bantumilli Police

Station and police staff did not go to near Z.P. High School, Nehru Nagar,

Nagannacheruvu village and accused was not apprehended and arrested there as deposed by and that accused never confessed her guilt of offence as deposed by him and that the mediators report dated 01.08.2023 at 06.00 AM was also prepared in the Police Station itself and obtained their signatures in the Police Station itself and PW.6 denied the same as not true.

(l) Dr.Kunparaju Rajesh Kumar Varma, S/o. Satyanarayana Raju who gave treatment to PW.1 was examined as PW.9. He deposed that he has been practicing as General Physician and running a Hospital under the 27 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

name and style of Srinivasa Nursing Home at Kalidindi since 17 years. He deposed that in the year 2023 on one-day one attendant took the patient by name Suresh to his Hospital by suspecting that he was given poison.

He deposed that he did First aid to him by got vomit the substance which he swallowed and preserved the same. He deposed that on the same day, he informed the police about the patient through a letter of intimation and on that the Police came to his Hospital, and then he gave the sample of preserved vomit of Suresh to the Police. Learned Public Prosecutor shown

Intimation letter, dated 31.07.2023 written on letterhead of Srinivasa

Nursing Home, Kalidindi and witness confronted that he gave the intimation letter to the Sub Inspector of Police, Kalidindi Police Station.

The Intimation Letter dated 31.07.2023 given by PW9 to Sub Inspector of

Police, Kalidindi Police Station was marked as Ex.P.4. He deposed that he prescribed antibiotic and supportive treatment to said Suresh and after two days, he discharged from their Hospital. He deposed that he also issued treatment certificate of Suresh to the Police on 16.08.2023. Treatment certificate dated 16.08.2023 was marked as Ex.P.5. In the cross examination he admitted that he has not mentioned in Ex.P4 about the condition of patient Suresh and so also who accompanied him to his hospital. He admitted that he addressed Ex.P4 to the Police, Kalidindi

Police Station and that the doctor who treats a patient cannot say which poison was administered by/to patient without expert opinion on it. After deposing so, witness volunteered that he mentioned rat poison in Ex.P4 and P5 on the information given by patient Suresh. He deposed that the police did not enquire him about treatment given to said Suresh and record his statement. He admitted that in Ex.P4 and P5 there is no mention that while giving First aid to patient Suresh he preserved vomit of him for analysis. He admitted that their Hospital is maintaining records like register noting the admission and discharge particulars of patients and he did not bring the relevant register to the Court to show that he gave 28 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

treatment to Suresh as deposed by him. He admitted that he did not issue his opinion or certificate after receipt of RFSL Report by the police that

Suresh was administered rat poison. The rest of the cross examination is nothing but suggestions to the effect that he did not give treatment to

Patient Suresh as deposed by him and that he issued Ex.P4 and P5 at the instance of Suresh as he is their family Doctor and PW.9 denied the same as not true.

(m) A.Pydi Babu, S/o. Subrahmanyam, who is the investigating officer, was examined as PW.10. He deposed that he has been working as Sub

Inspector of Police, Kruthivennu Police Station since 08.08.2024.

Previously, he worked as Sub Inspector of Police, Bantumilli Police Station from 24.01.2022 to 02.02.2024. He deposed that on 31.07.2023 at 12.00 noon, he received Medico Legal Case report from Srinivasa Nursing

Home, Kalidindi. Immediately, he went there and recorded the statement/Ex.P1 of victim by name Havaldar Suresh. Basing on it, he registered a case in Cr.No.187/2023 for the offence under Section 307 of

Indian Penal Code of Bantumilli Police Station against accused by name

Havaldar Lakshmi and issued FIR. He deposed that he submitted the original FIR to the concerned Court and copies to his superiors. FIR is marked as Ex.P.6. He deposed that on the same day again he visited the hospital at 05.30 PM, there he examined and recorded the statements of

PW1, PW2, LW3/Rachapudi Prabhudasu and LW4/Tiruvedi Subbayya and from there he along with mediators i.e., PW6 and LW13/Tammuneedi

Srinivas and his staff went to the scene of offence i.e., house of PW1 and accused situated at D.No.5-95, Nehru Nagar, Nagannacheruvu Village. He deposed that he observed the scene of offence and got prepared scene observation report/Ex.P2 by PW6 and obtained signatures of mediators and he also put his signature on it. During the course of scene observation, he seized ratal paste/M.O.1, a steel tea glass/M.O.2 and rice 29 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

mixed with curry under the cover of Ex.P2. He deposed that he obtained signatures of mediators on punch slips and affixed them to seized material objects. He deposed that he also prepared rough sketch of scene of offence. He deposed that he got photographed the scene of offence.

Rough sketch and photographs (4 in number) along with CD were marked as Ex.P7 and P8 respectively. He deposed that, there he examined and recorded the statements of LW6/Rachapudi Sujatha, LW7/Munipalli

Elisha, PW4, PW5, PW7 and PW8. PW7 has stated before him as in his 161 Cr.P.C. statement/Ex.P3. He further deposed that on 01.08.2023 at about 06.00 AM on credible information he along with above two mediators and staff went to Nagannacheruvu Panchayati, Z.P. High

School, Nehru Nagar, there they found one woman trying to escape on seeing them. Then, he with the help of his staff caught hold her, he enquired her in the presence of mediators and she confessed her guilt of commission of this offence by disclosing her particulars as Havaldar

Lakshmi, W/o Havaldar Suresh. He deposed that PW6 scribed the mediators report dated 01.08.2023 at 06.00 AM that includes confession of accused and he obtained the signatures of mediators, accused and he also put his signature on it. He deposed that he affected the arrest of accused by following all legal formalities and got her produced before the concerned Court for her remand. He deposed that on 05.08.2023 he sent the seized material objects to RFSL, Vijayawada for analysis and report through letter of advice along with covering letter. The letter of advice along with covering letter dated 05.08.2023 was marked as Ex.P.9. He deposed that on 16.08.2023 he collected treatment certificate/Ex.P5 from

PW9. He deposed that on 26.09.2023 he received RFSL report. RFSL

Report dated 26.09.2023 was marked as Ex.P.10. He deposed that in the

RFSL Report it was reported that, rat poison was found in all the material objects that were sent to RFSL for analysis including M.O.1 and M.O.2. He deposed that after completion of investigation and colleting all relevant 30 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

documents, he filed charge sheet against the accused for the offence punishable under Section 307 of Indian Penal Code. In the cross examination he deposed that he mentioned the time when he received the

Medico Legal Case intimation in Part-I Case Diary. He admitted that he did not mention anywhere in the documents that were furnished to accused about the time when he received the Medico Legal Case intimation. He admitted that there is time gap of 21 hours in occurrence of the incident and issuance of FIR. He admitted that there is no oral information from anybody about the incident proper in between the time of incident and receipt of Medico Legal Case intimation. He admitted that in Col.No.4 of

Ex.P6/FIR it was mentioned that the mode of information is “oral”. After he visited the scene of offence, no altercations were made in FIR. He further deposed that they found M.O.1 at the scene of offence on their search. He admitted that M.O.1 and M.O.2 are not having punch slip affixed to it with signatures of mediators and himself. After deposing so, witness volunteered that M.O.1 and M.O.2 were affixed with punch slips and later they were sent to RFSL for analysis. He did not make any marking on

M.O.1 and M.O.2 that they were seized in this crime. He admitted that in

Ex.P4 there is no mention about condition of the victim and who accompanied him to Hospital and that in Ex.P4 it is mentioned as “c/o instigation of rat poison paste”. He admitted that in Ex.P7/rough sketch the houses of PW1 and mother of PW1 is shown separately. After saying so, witness again says that he has shown both houses in one compound. He deposed that he has not mentioned in charge sheet about existence of both houses in one compound. He admitted that he did not mention the word ‘compound wall’ in Ex.P7/rough sketch. He admitted that he did not get it mention about both houses existing within a compound wall in

Ex.P2/scene observation report. He deposed that he got it mentioned in

Ex.P2 that they found curry mixed rice in a steel plate. He admitted that he has not got mentioned in Ex.P2 the specific descriptive particulars of 31 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

quantum of curry mixed rice and whether entire rice in the plate is mixed with curry or not. He admitted that he did not seize the steel plate referred in Ex.P2. He deposed that he did not seize the utensils in which rice and curry were cooked. He deposed that he did not find any substance of vomit of curry mixed rice and tea on the ground at the scene of offence.

He admitted that none of the witnesses whom he examined and recorded their statements did not state that accused prepared the rice, curry and tea and served the same to PW1 with her hands. He admitted that he did not collect fingerprints at the scene of offence particularly on cooking vessels,

M.O.1 and M.O.2 and so also, the plate in which food was said to be served. He deposed that he did not give any written information to his Sub

Divisional Police Officer about registering of case and investigation made by him. After deposing so, witness volunteered that he sent information to his Sub Divisional Police Officer through phone call. He admitted that

Ex.P5/treatment certificate do not disclose that it is a wound certificate, but it discloses about treatment given to one H.Suresh, age 35 y/m. He admitted that in Ex.P5 there is mention about laboratory investigations, but he did not collect any documents pertaining to said investigation from

Srinivasa Nursing Home, Kalidindi. He admitted that Ex.P2 and mediator report, dated 01.08.2023 at 06.00 AM do not disclose that they were prepared by PW6. He admitted that he did not send vomit of food and spit of tea of PW1 to RFSL for analysis. He admitted that as per Ex.P10 rice, brown colour substance and one steel glass were received by RFSL,

Vijayawada for analysis and in Ex.P10 the Analyst gave his report to the effect that “the above items 1 to 3 are analyzed and Phosphide a rodenticide poison is found in all of them” and there is no specific mention about rat poison. He admitted that the tube like M.O.1 is available in market and so also glass like M.O.2. He deposed that PW1 did not state in his 161 Cr.P.C statement that he along with his wife, mother, paternal grandmother and his three children are living together in one house. He 32 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

admitted that he has not collect the details like phone number and name of person with whom accused is conversing in phone for the past two years and so also PW1 has not given such particulars to him. He admitted that he did not try to collect the above information i.e., phone number and other particulars. He admitted that PW1 did not state in his 161 Cr.P.C statement about the particulars of the person with whom accused is conversing. He admitted that PW1 did not state before him in his 161

Cr.P.C. statement that “accused developed illegal intimacy with her brother-in-law who is son of her paternal aunt and used to converse with him on phone hours together”. He admitted that PW1 did not state before him in his 161 Cr.P.C. statement that “he took two bite of rice with chicken curry and felt different taste and then he vomited”. He admitted that PW1 did not state before him in his 161 Cr.P.C. statement that he placed the issue before PW3, PW5 and LW7/Munipalli Elisha. He admitted that PW2 did not state before him in her 161 Cr.P.C. statement that accused also tried to kill her and her mother-in-law by giving poison. He also admitted that PW3 did not state before him in his 161 Cr.P.C. statement as stated by him in his chief examination as PW3 in this case at Paragraph No.2 from 2nd line to till end of chief examination with words ‘early hours i.e., 05.00 A.M to 06.00 A.M of 31.07.2023’. He deposed that he did not seize two small phones and one watch phone from the accused as referred by

PW4. The rest of the cross examination is nothing but suggestions to the effect that he did not show in Ex.P7/rough sketch specifically for both houses existing within one compound and that he did not visit the scene of offence and not prepared rough sketch as per actual existence of houses in and around to the alleged scene of offence and that he did not seize

M.O.1, M.O.2 and curry mixed rice from the scene of offence and that

M.O.1 and M.O.2 are planted to suit the prosecution case and that he prepared Ex.P2 and mediators report dated 01.08.2023 at 06.00 AM and obtained signatures of mediators in the Police Station itself and he did not 33 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

arrest the accused on 01.08.2023 as deposed by him and that accused never confessed her guilt of commission of this offence and that accused is no way concerned to the alleged charges made against her and that he made only table investigation at the instigation of PW1 and filed charge sheet accordingly with all false and baseless allegations against the accused and PW.10 denied the same as not true.

(n) It is the version of the prosecution that the accused committed offence punishable under Sec.307 of Indian Penal Code and the charge was also framed accordingly. The only charge framed against the accused is that, the accused being the wife of PW.1 with an intention to kill PW.1 mixed rat poison in the food of PW.1 on 30.07.2023 at about 7.30

P.M., and thereby the accused committed offence punishable under Sec.

307 of Indian Penal Code. For establishing this offence, the prosecution must prove;

(i) that the death of a human being was attempted;

(ii) that such death was attempted to be caused by, or in consequence of, the act of the accused;

(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as

(a) the accused knew to be likely to cause death; or

(b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause

(a) death, or

(b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.

34 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

(o) It is an admitted fact that PW.1 and accused are husband and wife and there is no dispute between the relationship of wife and husband between accused and P.W.1 as the accused is not disputing the marriage of P.W.1 with accused. The first allegation against the accused is that she used to converse with other men for hours on phone and she had illegal affairs with several persons. To substantiate its contention the prosecution examined PWs. 1 to 5, 8 and 9. PW.1 stated in his evidence that about 13 years back he married the accused and they were blessed with one daughter and two sons. Later the accused developed illegal intimacy with her brother-in-law who is son of her paternal aunt and used to converse with him on phone hours together. He intimated about it to mother and brother of accused, but they did not heed his words, then he placed the same before their village elders viz., LW.5/Rachapudi Prasad,

LW.7/Mullapalli Elisha and PW.5, on that they called the accused and admonished her and she tender apology stating that she will never repeat the same again. On the apology tendered by accused, the elders sent her to his matrimonial fold. Few days thereafter, she again started the same and again he asked her why she is doing like that, but she did not give any reply. As seen from the statement of PW.1 which was recorded by the Sub

Inspector of Police, Bantumilli Police Station at the time of admission of

PW.1 in the hospital, he stated that since two years his wife is talking with someone else on phone and whenever he questioned her, she did not give any reply to him and at about 10 days back when he questioned the accused about the conversion over phone, again she did not give any reply to him. On that he called the relatives of accused and intimated the same but they did not heed his words. Later, he intimated the same to his relatives and they admonished the accused and she tender apology by touching his feet stating that she will never repeat the same again. A perusal of Sec.161 Cr.P.C statement of PW.1, he stated in his statement that since two years his wife/Havaldar Lakshmi is maintaining separate 35 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

phone without his knowledge and talking with someone over phone and when how many times he questioned her, she did not give any reply to him. About 10 days back when she was conversing over phone, he questioned her as to whom she is speaking, but she kept silence without giving any proper reply. On that, he called the relatives of accused over phone and intimated the same to them, but they did not heed his words.

Later he, his relatives and his village elder by name Abraham admonished the accused and she admitted her mistake and begs for apology by touching his feet. As per the evidence of PW.1 for the first time in the court he stated that the accused developed illegal intimacy with her brother-in- law who is son of her paternal aunt and used to converse with him on phone hours together, but the said statement was stated by PW.1 neither in his Sec.161 Cr.P.C., statement nor in his statement which was recorded by the Sub Inspector of Police at the time of his hospitalization. PW.1 stated in his Sec.161 Cr.P.C., statement that the accused is talking with someone else in the phone, but he did not state with whom she was conversing over phone but when it comes to the evidence in the court, it seems that he improvised his version and stated that she is conversing with her brother-in-law. Further PW.1 also did not state the so called brother-in-law’s name in his evidence. PW.1 himself admitted in his evidence that in Ex.P.1 statement he stated before the police that accused has been conversing with another person on a phone since two years, but he did not give the details of the said person and so also the phone number to the police. PW.1 further admitted that he did not hand over the said phone to the police. He further admitted that in Ex.P.1 statement he also stated to the police that accused was conversing with another person on a phone on 30.07.2023 at 7.30 P.M., but he did not give the details of said person and so also the phone number to the police. PW.2 stated that the accused developed illegal intimacy with another man and she used to converse with him on phone. PW.3 stated that since their marriage 36 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

the accused had been harassing PW.1 by having illegal intimacy with two or three others. PW.4 stated that since their marriage the accused and

PW.1 are not in cordial relation as the accused used to converse with other men on phone. PW.5 stated that initially PW.1 and accused lead happy marital life after their marriage, later the accused used to converse with others on phone and a quarrel took place between PW.1 and accused. PW.3 stated in his cross-examination that he never saw accused conversing with another person on phone or roaming with other men.

PW.4 admitted in her evidence that she had not stated before the police in her Sec.161 Cr.P.C statement that since their marriage accused and PW.1 are not in cordial relation as accused used to converse with other men on phone. PW.8 stated that he never witnessed the accused conversing with others on phone and he never saw her having intimacy with any other man. As per the evidence of PWs. 2, 3 4, 5 and 8 all the witnesses stated that they never witnessed the accused conversing over phone with another person and roaming with other men. Furthermore, the phone which the accused alleged to be used for conversing with other persons was not seized by the investigating officer. The Investigating Officer who was examined as PW.10 himself admitted that he did not seize any phone from the possession of the accused. Further, he did not verify the call data with whom the accused has been conversing with. When there is no proof to show that the accused is conversing with other men, then the version of the prosecution that accused is having illegal intimacy with other men is not at all believable.

(p) It is the version of the prosecution that when accused is conversing over phone PW.1 questioned her many times but she did not give any reply and on that he called the parents of accused over phone and intimated the said fact to them, but they did not heed his words. PW.1 in his evidence stated that he intimated about it to her mother and brother, but they did not heed his words. Whereas in the statement which was 37 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

recorded at the hospital and the Sec. 161 Cr.P.C statement he stated that he intimated the relatives of accused about her behavior but they did not heed his words. For the first in the court, he stated that he intimated about it to her mother and brother. The said fact was not stated by PW.1 at the time of his recording the statement. As per PW.1, when the parents of accused did not heed his words, he placed the matter before their village elders i.e., LW.5/Rachapudi Prasad, LW.7/Munipalli Elisha and PW.5, on that they called the accused and admonished her and she tender apology stating that she will never repeat the same again. Whereas in his Sec.161

Cr.P.C statement he stated that when accused parents did not heed his words, he placed the matter before his relatives and his village elder by name Abraham and they admonished her. PW.1 did not state the names of villagers i.e., LW.5/Rachapudi Prasad, LW.7/ Munipalli Elisha and PW.5 in his Sec. 161 Cr.P.C. statement but to contra he stated that he placed the matter before his family members and village elder by name Abraham.

It seems that he had improvised his statement when he came to the court.

It is pertinent to note here that P.W.2 bring a new version here, PW.2 who is the mother of PW.1 stated that the accused informed to one Sagarika who is their neighbor that PW.1 has been harassing her by suspecting her fidelity saying that she is conversing with another man on phone frequently and she wants to get rid of her husband. While accused was talking with said Sagarika, PW.2 heard it and she admonished the accused why she is saying all these things to said Sagarika. On hearing their loud voices, their neighbours LW.7/Munipalli Elisha, PW.5/Munipalli Vijaykumar,

PW.4/Chilakanti Pichamma, Munipalli Pedda Bujji and Munipalli Chinna

Bujji came to them and admonished the accused. Then they placed the same before the elders and the elders pacified the accused and sent her to lead happy marital life with her husband/PW1. After 10 days of above incident, the accused again started conversing with another man on phone. But, strangely that Sagarika is not examined by the investigating 38 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

officer and her name is also not arrayed as witness in the list of witnesses.

She is the key witness to the case of the prosecution and she is the motive of the accused to commit the alleged offence. But, the prosecution did not choose to examine the said Sagarika for the reasons best known to them.

PW.3 stated in his evidence that PW1 placed about the illegal intimacy of accused and roaming with other persons before the elders including him,

PW.8/Munipalli Abraham and in the said mediation on her behalf, her mother, her brother, her sister-in-law, her elder paternal uncle and her cousin were present. The fact that in the mediation on behalf of accused her mother, her brother, her sister-in-law and her paternal uncle and her counsel were present is not stated by PW.1 in his evidence. He simply stated that mediation was held by his relatives and his village elders only, he did not state that the family members of the accused were also present at the time of mediation. Surprisingly, PW.3 came with a new version stating that in the said mediation one Pulivarthi Eziya gave evidence stating that accused came to her house along with one male person and she admonished her and did not allow the accused into her house. Then they the elders admonished and advised the accused not to repeat such type of acts and lead marital life with PW1. The said fact was also not stated by PW.1 that one Pulivarthi Eziya gave evidence stating that accused came to her house along with one male person and she admonished her and did not allow the accused into her house. Except

PW.3 none of the witnesses had stated that one Pulivarthi Eziya came to the mediation and gave evidence. In one way or other, it seems that the relatives of PW.1 were arrayed as eyewitnesses to the incident proper but all these witnesses did not state before the court that they saw the accused conversing with other men and having any illegal intimacy with other persons. So far as the motive part is concerned, there is hardly any evidence adduced by the prosecution to show that there was any motive

for the accused to administer poison to PW.1. Though, all the witnesses

39 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

had stated that the accused used to converse over phone with other men and have illegal relationship with other persons, except their bare version there was no other evidence produced to substantiate that allegation.

(q) The main allegation against the accused is that the accused tried to commit murder of PW.1 by mixing ratol poison in the food which he had on the date of offence. To substantiate it, PW.1 in his evidence stated that on 30.07.2023 at about 07.30 P.M., accused served Tea to PW.1. He observed some foul smell and thrown the tea after taking one or two sips.

Then she asked him to have dinner with chicken curry. He took two bites of rice with chicken curry and felt different taste and then he vomited.

Knowing the same his mother PW2/Havaldar Dhanalakshmi,

LW3/Rachapudi Prabhudasu (brother) and PW.3/Rachapudi Prasad (elder uncle) came to him and questioned the accused. The accused with a fear thrown rat poison tube into garbage at the corner to the outside of his house. His mother PW2/Havaldar Dhanalakshmi, LW3/Rachapudi

Prabhudasu (brother) and PW.3/Rachapudi Prasad (elder uncle) again asked her about it, on that she stated that he is not allowing her to live with freedom and he is hurdle to her and if he dies she can live with freedom.

Then LW3/Rachapudi Prabhudasu and PW.5/Rachapudi Prasad took him to Srinivasa Nursing Home, Kalidindi for treatment. There the doctor gave treatment by removing the swallowed food with a tube. In the statement of

PW.1 which was recorded at hospital he deposed that on 30.07.2023 at about 7.30 hours when the accused is conversing over phone, he questioned her and in confusion she did not give proper reply and later at about 8.00 P.M., the accused gave him a tea, when he was having it, he observed some foul smell and he thrown away the tea. Later at about 9.00

P.M., the accused served dinner with chicken curry to him and in that curry also he also observed the same smell which he felt in the tea, then he immediately left the dinner and went out and observed that his wife was 40 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

throwing something in the garbage of his house. On that, he went there and found Ratol company rat poison which used for killing of rats. On that he admonished his wife/accused and raised cries on that the accused stated that with an intention to eliminate him she mixed the rat poison in the curry and tea. Immediately he called his brother by name Prabhudas, pastor by name Prasad and his wife by name Sujatha. On that they came to his house and admonished the accused and shifted him to the Kalidindi

Srinivasa Nursing Home and there the doctor gave treatment to him. As per the statement of PW.1, he did not eat the food which the accused served him on the date of offence. But, as per his evidence he stated that he took two bites of rice with chicken curry and felt different taste and then he vomited. Whereas, in his statement he stated that when he felt the smell he left the food. In his statement PW.1 did not state that he vomited the food which he swallowed in the house. at one place he is stating that he ate the food and at another place he is stating that he felt some foul smell and did not ate it and at another place he is stating that after taking two bites he vomited the food. Whereas, PW.2 stated that when she went to PW.1 he was vomiting. PW.1 stated that he vomited the food, but PW.2 stated that when she came to the house of PW.1, PW.1 is vomiting the food. There is inconsistency in the evidences of PWs. 1 and 2. PW.3 stated in his evidence that the accused tried to serve food to PW.1 by mixing rat poison, but PW.1 on seeing her mixing rat poison in food did not take the food and raised hues. PW.3 is stating that PW.1 saw the accused mixing the rat poison in the food and did not take the food and raised hues. But the said fact was not stated by PW.1, he nowhere in his statement or his evidence stated that he saw the accused mixing the rat poison in the food. PW.4 stated in his evidence that he and other neighbours heard the hues from the house of PW.1, then they all went there and found P.W.1 vomit food with chicken curry. This fact was also not stated by PW.1 that when they came to his house he was vomiting the 41 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

chicken curry. PW.5 stated that he heard hues from the house of PW.1 and accused, then he went to their house and enquired with the persons who were present there as to what happened. As per the version of PW.1 he called his brother, Pastor and his wife to his house, but he never stated in his evidence or in his Sec. 161 Cr.P.C., statement he raised hues and cries and on hearing the same the neighbours came to his house and admonished the accused. PW.1 is stating that he saw that accused when she is throwing the poison in the garbage of his house, which means he is very much conscious when he saw the ratol tube and he himself called his brother, pastor and his wife over phone to his house and later they admonished the accused and shifted him to the hospital. This is an exaggeration. As per PW.1 he saw the ratol tube in the garbage and he is aware of the poison. As per first statement of PW.1 he had tea at 7.30

P.M., and at 8.00 P.M., he had dinner, but whereas in his Sec.161 Cr.P.C statement he stated that he had tea at 7.30 P.M., and at 9.00 P.M., he had the dinner. The time is also different from one statement to another statement. Further PW.1 stated that after having two bites he vomited the food, but this was not stated by him in this both Sec. 161 Cr.P.C statement and in the statement which was recorded at the hospital by Sub Inspector of Police. This is an exaggeration which he improvised later point of time.

On the other hand nobody had stated that PW.1 vomited the food in his house. The Investigating officer who is examined as PW.10 stated that when he went along with mediators to the scene of offence he did not observe any vomiting and not collected the vomiting material from the scene of offence and strangely as against the statement of PW.1 given at the time of admission in hospital and in his Sec. 161 Cr.P.C statement the tube was taken from the bushes. It is also contrary to the very first version of PW.1 and so also his Sec. 161 Cr.P.C statement. As per the evidence of PW.1 he took the tube from the accused and on observing it he found it as Ratol company rat poison which was used for killing of rats.

42 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

Then he called LW.4/Rachapudi Prabhudas, PW.5/Rachapudi Prasad his elder uncle and they all admonished the accused, then all of them took him to the hospital. Per contra he deposed before the court after knowing the same his mother, LW.4/Rachapudi Prabhudas, PW.5/Rachapudi

Prasad came to him and questioned the accused and the accused with fear stated that she mixed the rat poison in the food. It is a major contradiction. As per the evidence of PW.1 his mother and others including Prabhu Das and Prasad came to the house after knowing that he vomit the food, but whereas in his statement and Sec. 161 Cr.P.C statement he himself called Prabhu Das and Prasad and they came to his house and admonished the accused. He did not speak about his mother either in his first statement which was recorded at the time of his hospitalization or in his Sec. 161 Cr.P.C., statement. But the evidence of

PW.1 and the evidence of PW.2, who is the mother of PW.1 shows that the mother of PW.1 along with others came to the house of P.W.1 and saw he was vomiting the food. The evidence of PW.1 is contradicting to the evidence of PW.2. His mother stated that when she went there PW.1 was vomiting but in her 161 Cr.P.C statement that on 30.07.2023 at about 9.00 P.M., she heard some sounds from the house of PW.1 and on hearing the same she came to the house of PW.1 and PW.1 stated to her by weeping that her daughter-in-law mixed rat poison in the tea and dinner and in the meanwhile the neibhbours who care her relatives Prabhudas his wife Sujatha, Pastor by name Prasad came to their house and they all shifted PW.1 to the Kalidindi Nursing Home and the doctor gave treatment to him. This part of evidence is contradicting to the evidence of PW.1.

Nowhere, PW.1 had stated that he vomited the food for the first time he stated before the court that after taking two bites he vomited the food. But as seen from the evidence of PW.10 who is the investigating officer he did not collect any vomiting substance from the house of PW.1. Further a perusal of Ex.P.8 photographs it shows that no where in the house the 43 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

vomiting substance was found in the photographs. Further, a perusal of the photographs it was observed that tea was thrown in the house and a steel glass was also placed near the thrown tea. It is the contention of the

PW.1 that he throws the tea after feeling the some sour smell. But where did not thrown the tea is not stated by PW.1, whether he thrown the same in the house or at the outside of the house. Further as per the version of

PW.1 he had tea at 7.30 P.M., and he had dinner at 8 to 9 P.M., if really he had tea at 7.00 P.M., why the accused did not clean the tea class still the police came to the house and seized it. In general if, we thrown anything on the ground every woman will clean it immediately. But in this case, it seems that the tea glass was not cleaned by the accused and the floor seems to be not cleaned. When a person wants to kill someone and if she fails to do so, then the person will immediately clean the said premises to hide everything. But, here it was not done by the accused. It shows that the same was created to implicate the accused in this case.

(r) Now coming to the evidence of PW.9 who treated PW.1 stated that he in the year 2023 on one day one attendant took the patient by name Suresh to his Hospital by suspecting that he was given poison.

He did First-aid to him by got vomit the substance which he swallowed and preserved the same. On the same day, he informed the police about the patient through a letter of intimation. On that, the Police came to his

Hospital, then he gave the sample of preserved vomit of Suresh to the

Police. In the cross examination he admitted that he had not mentioned in

Ex.P4 about the condition of patient Suresh and so also who accompanied him to his hospital. He also admitted that the doctor who treats a patient cannot say which poison was administered by/to patient without expert opinion on it. After deposing so, PW.9 volunteered that he mentioned rat poison in Ex.P4 and P5 on the information given by patient Suresh. How did PW.9 come to a conclusion that PW.1 consumed rat poison is not explained by the prosecution. The medical evidence of PW.9 is not in 44 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

corroboration with the evidence of PW.10. Further, PW.9 stated that on that day police came to his Hospital, then he gave the sample of preserved vomit of Suresh to the Police. But, as per the evidence of

PW.10 he did not seize any vomit substance from the doctor. He did not state that the doctor PW.9 had handed over the vomit substance to him.

As per the evidence of PW.10 on 05.08.2023, he sent the seized material objects sent to RFSL, Vijayawada for analysis and report through letter of advice along with covering letter. He further deposed that on 16.08.2023 he collected treatment certificate/Ex.P.5 from PW.9. A perusal of Ex.P.5 would show that it was issued by Dr.K.Rajesh Kumar Varma, Srinivasa

Nursing Home, opposite Police Station, Kalidindi in which it discloses that the patient by name H.Suresh age 35 years admitted in Srinivas Nursing home on 30.07.2023 at 11.00 P.M., in view of ingestion of rat poison. He treated for rat poison first by doing vomiting and then with antibiotics and antidotes are given for four days with laboratory investigations also. There are no other injuries which are visible on the body. Ex.P.5 shows that the doctor gave treatment to PW.1 for consuming of rat poison. In this letter

Ex.P.5, the doctor/PW.9 did not mention how the condition of the patient was, whether he was in conscious or unconscious. PW.10 admitted in his evidence that in Ex.P.4 there is no mention about condition of the victim and who accompanied him to hospital and further in Ex.P.4 it was mentioned as “c/o instigation of rat poison pate”. Even PW.9 also admitted in his evidence that he did not mention in Ex.P.4 about the condition of patient Suresh and so also who accompanied him to the hospital. Further PW.10 admitted in his evidence that Ex.P.5 treatment certificate do not disclose that it is a wound certificate but it discloses about treatment given to one H.Suresh, age 35 years. He also admitted that in Ex.P.5 there is no mention about laboratory investigation, but he did not collect any documents pertaining to said investigation from Srinivasa

Nursing Home, Kalidindi. PW.9 further admitted that the doctor who treats 45 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

a patient cannot say which poison was administer by to the patient without expert opinion on it. When it is the case, then how PW.9 come to a conclusion that the substance is rat poison and PW.1 consumed the said rat poison. Further PW.1 and 2 stated in their evidence that PW.9 is their family doctor and they used to visit him whenever they need. Non- production of a material object, crucial for forensic analysis, can significantly weaken a case, potentially leading to an acquittal if the prosecution fails to explain its absence or provide alternative evidence. In the context of criminal cases, RFSL (Regional Forensic Science

Laboratory) plays a crucial role by providing forensic analysis and expert opinions on evidence collected from crime scenes, aiding in investigations and legal proceedings. Hence, it seems that the evidence of PW.9 is also not helpful to the case of the prosecution. If the evidence of the witness for the prosecution is totally inconsistent with the medical evidence, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case.

(s) With regard to the seizure of the material objects, the prosecution examined the Investigating Officer as PW.6 and 10 who seized M.O.s 1 and 2 from the house of P.W.1. With regard to the seizure of the material objects, PW.6 who acted as mediator stated in his evidence that on 31.07.2023 at about 05.50 PM, on the request of Sub Inspector of Police,

Bantumilli Police Station, he went to the scene of offence situated at the house of PW1 and accused in Nehru Nagar, Nagannacheruvu village. By the time, he went there, LW13/Tammuneedi Srinivas, Sub Inspector of

Police, Bantumilli Police Station, constables and villagers were present there. Sub Inspector of Police, Bantumilli Police Station, he and

LW13/Tammuneedi Srinivas observed the scene of offence and found one steel tea glass/M.O.2 with some tea powder, plate with chicken curry mixed rice at scene of offence. It was said by villagers that rat poison was mixed in chicken curry mixed rice and that the person who took that food 46 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

was taken to Hospital. The police seized steel glass and chicken curry mixed rice. Then we searched for rat poison that was said to be mixed in food, police brought rat poison tube saying that they found it in the bushes back side to the house of PW1. Said tube was seized by Police.

Photographs of the scene of offence were taken and rough sketch was also prepared. Then he reduced scene observation report into writing. He,

LW13/Tammuneedi Srinvas and Sub Inspector of Police, Bantumilli put their signatures on scene observation report. Ex.P2 is scene observation report dated 31.07.2023 at 05.50 PM. M.O.1 and M.O.2 are Ratol poison tube and small steel glass. It is the version of the PW.6 that the rat poison tube was brought from the bushes and whereas PW.1 stated in his evidence that when the accused was throwing the rat poison tube in the garbage he found it and questioned the accused. When the accused had found the same in garbage how the rat poison tube came from bushes is not explained by the prosecution. With regard to the apprehension of the accused, PW.6 stated that on 01.08.2023 at about 06.00 AM he,

LW13/Tammuneedi Srinivas, villagers of Nagannacheruvu village, Sub

Inspector of Police, Bantumilli Police Station and police staff went near to

Z.P.High School, Nehru Nagar, Nagannacheruvu. There the police apprehended the accused and she confessed her guilt of commission of this offence. Then he prepared mediators report including confession of accused. Then, Police arrested her and took her to Police Station. He deposed that he, LW13/Tammuneedi Srinivas, Sub Inspector of Police,

Bantumilli Police Station and accused put their signatures on said mediators report. In the cross examination he admitted that Ex.P2/scene observation report does not disclose that he prepared Ex.P2/scene observation report and it does not contain his signature as a scribe.

Further a perusal of the entire record it shows that there is no panchanama to show that the investigating officer had collected the vomiting substance that was observed by PW.9 under the cover of 47 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

panchanama. In the absence of the same the evidence of PW.9 cannot be accepted. Further both PW.6 and PW.10 stated that on 01.08.2023 at about 06.00 AM they went near to Z.P.High School, Nehru Nagar,

Nagannacheruvu and there the police apprehended the accused and she confessed her guilt of commission of this offence. As per the evidence of

PW.1, the accused was very much present in the house before he went to the hospital and when the accused is very much available at the scene of offence the people of PW.1 did not take her into their custody. Usually when this type of offences were committed in the villages, the elders of the village will definitely apprehend the accused and will hand over the accused to the police. But in this case, after the incident the accused whereabouts were not stated by any one of the witnesses, whether she run away from the scene of offence or whether she stayed there in the house only. But, it is the contention of PWs. 6 and 10 that they apprehended the accused near ZP School which is also a suspicious circumstance. Further PW.6 and 10 stated that they sized M.Os. 1 and 2 from the house of PW.1. M.O.1 is the ratol paste and M.O.2 is the small steel glass. PW.10 stated in his evidence that he sent M.O.1 and 2 to the

RFSL. A perusal of RFSL report it would show that they received one sealed cardboard box containing 1. Rice, 2. Plastic tube labeled Ratol containing brown colour substance and one steel glass. As per the report, the above item Nos. 1 to 3 are analysed and phosphide a rodmenticide poison is found in all of them. It is the contention of the PW.1 that the accused mixed the poison in chicken curry and served to him. But in the

RFSL report it shows that only rice was seized and sent for RFSL report.

Further the RFSL report shows that only rice is tested nowhere in the report was stated that the rice is mixed with chicken curry. Further the investigating officer seized only one steel glass, he did not seize the plate which the rice was served to PW.1. If material objects are not sent for analysis, the prosecution's case can be significantly weakened, as the 48 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

court may lack the evidence to support its claims. As per, the evidence of

PW.10, like M.O.1 is available in open market and so also glass like

M.O.2. PW.10 admitted in his evidence that as per Ex.P.10 rice, brown colour substance and one steel glass were received by RFSL, Vijayawada for analysis. From the evidence of the I.O. (PW-10), it is evident that the vomit material was not seized and it was not sent for forensic examination.

He had not mentioned in the case diary that he had taken out the vomit samples for scientific examination from the house of PW.1. In cases involving suspected poisoning, failure to collect, preserve, and send vomit samples to a forensic lab for analysis can lead to legal complications, as the absence of such evidence can weaken the prosecution's case. In a decision made in a case of Hariprasad @ Kishan Sahu vs The State Of

Chhattisgarh on 7 November, 2023 wherein it was held that, “In an essence the RFSL report acts as crucial piece of evidence in poisonous cases helping to establish the cause of death, strengthen the circumstantial evidence, ultimately support the prosecution case”.

In the case on hand, the prosecution has miserably failed to forward the substances which were alleged to be drawn from PW.1 by the doctor in the hospital, to the FSL for examination and for necessary report. As referred supra, when the FSL report is such a piece of crucial evidence in poisoning cases, non forwarding the alleged poisonous substance to the

FSL clearly shows that the prosecution has miserably failed to prove its case against the accused. A perusal of entire evidences of PWs. 2 to 9 no one had deposed that they saw the accused mixing the food with rat poison and served to PW.1. All the witnesses i.e., PWs. 2 to 5, 7 to 9 are relatives of PW.1 and they are all circumstantial witnesses, they cannot be permitted as eye witnesses to the case because no one had saw when the accused mixing the rat poison in the food i.e, either in the tea or in the chicken curry and police also did not collect the rice with chicken curry 49 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

only rice was seized by the investigating officer. It is not explained by the investigating officer from where he seized the rice. Hence, from the evidences of PWs. 1 to 5, 7 to 9 it shows that PW.1 cooked up some story because PW.2 stated in her evidence that once the accused tried to kill her prior to the incident. When that is the case, why PW.2 did not give any report to the police against the accused prior to this incident. She did not state in her Sec. 161 Cr.P.C statement that accused tried to kill her prior to this incident. Hence, from all the evidences it clearly shows that prosecution miserably failed to prove that the accused had illegal relations with other men and she used to converse over phone to other men and finally on 30.07.2023 she tried to kill PW.1 by mixing rat poison in the food served to him. The accused also made a defence through cross examination of prosecution witnesses and also through her Sec.313

Cr.P.C examination that she did not commit any offence and she is no way connected with the alleged offence. Further, as seen from the evidence of PW.6 who is the mediator to the scene observation report categorically stated in his evidence that on that day himself and Village

Revenue Officer had examined the said house. Then the Sub Inspector of

Police seized M.Os. 1 and 2 in their presence by affixing identity slips with their signatures. But, in the cross examination the witness himself admitted that the scene of offence area does not come under their jurisdiction and there is another Village Revenue Officer to the scene of offence locality. PW.6 further admitted that in mediators report dt.

01.08.2023 at 6.00 A.M., there is no mention that the same was scribed by him. Hence, it creates a doubt that whether the mediator report was prepared in the presence of mediators or not. Then, his evidence cannot be believable with regard to the seizure of M.Os. 1 and 2 from the house of PW.1. Hence, it creates a doubt that whether the material objects were really seized from the house of PW.1 or not on 31.07.2023. As already discussed above, the above evidence adduced by the prosecution could 50 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

not establish that the accused attempted to kill PW.1 on the date of alleged incident. There is nothing on record to establish the offence under

Sec. 307 of Indian Penal Code. Though, the prosecution arrayed P.W. 2 to 5, 7 and 8 as direct witnesses in other words as eye witnesses, but nothing was elicited from their mouth to help the prosecution case.

Furthermore, the material witnesses including relatives and eyewitness, examined as P.Ws.2 to 5, 7 and 8 in one voice had deposed that they do not see the accused mixing the rat poison in the food which was served to

PW.1 on the date of incident. As referred supra nothing was elicited from the mouth of all the material witnesses including the defacto complainant, and the witnesses who were arrayed as direct witnesses to help the prosecution case and to connect the accused with the commission of offence under Sec. 307 of Indian Penal Code. Hence, the evidence adduced by the prosecution could not prove the above essential ingredients of section 307 Indian Penal Code to establish the said charge against the accused. Hence, the prosecution failed to prove the guilt of the accused for the offence under section 307 IPC.

(t) From the above discussion, there is absolutely no evidence put forth by the prosecution from the witnesses examined by it to prove the guilt of the accused in commission of charged offence. Therefore, the evidence adduced by the prosecution i.e., by examining the witnesses

PWs.1 to 10 and Exs.P1 to P.10 failed to establish the guilt of accused that the accused tried to kill her husband i.e., PW.1 by mixing rat poison in the tea and rice and thereby she committed the offence beyond all or any reasonable doubt. Therefore, in view of the above detailed discussion coupled with the reasons stated supra, this Court is of the considered view that the prosecution failed to prove the guilt of accused for the offence punishable under Section 307 of Indian Penal Code with which she is charged beyond all reasonable doubt. Hence, the accused is entitled for 51 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

acquittal for the said charged offence. Point No.1 is answered accordingly in favour of accused.

12. POINT NO.2:-

IN THE RESULT, the accused is found not guilty for the offence punishable under Sections 307 of Indian Penal Code and accordingly she is acquitted under Section 235 (1) Cr.P.C for the said offence. The bail bonds of accused shall stand cancelled. M.Os. 1 and 2 and unmarked case property if any shall be destroyed after appeal time is over.

Typed to my dictation by Stenographer, corrected and pronounced by me in open Court this the 4th day of April, 2025.

Sessions Judge,

Krishna, Machilipatnam.

APPENDIX OF EVIDENCE

Witnesses examined for Prosecution: Defence: NIL

PW1 Havaldar Suresh

PW2 Havaldar Dhana Lakshmi

PW3 Rachapudi Prasad

PW4 Chilakanti Pichamma

PW5 Munipalli Vijay Kumar

PW6 Lakkapragada Nageswara Rao

PW7 Jupudi Mohana Rao

PW.8 Munipalli Abraham

PW.9 Dr. K.Rajesh Kumar Varma, MD Physician, Srinivasa Nursing

Home, Kalidindi

PW.10 A.Pydi babu, Sub Inspector of Police, Bantumilli Police Station 52 S.C.88/2024 District & Sessions Judge, Dt.04.04.2025 Krishna, Machilipatnam.

Exhibits marked For prosecution:

Ex.P1 Statement of PW.1 dt. 31.07.2023

Ex.P2 Scene observation report, dt. 31.07.2023 at 5.50 P.M.,

Ex.P3 161 Cr.P.C statement of PW.7

Ex.P4 Intimation letter, dt. 31.07.2023

Ex.P5 Treatment certificate, dt. 16.08.2023

Ex.P6 FIR

Ex.P7 Rough sketch

Ex.P8 4 photographs with CD

Ex.P9 Letter of advice along with covering letter

Ex.P10 RFSL report, dt. 26.09.2023.

For defence:

Ex.D.1 Three photographs

Ex.D.2 photographs of PW.1 and his mother

Ex.D.3 photograph of PW.1

Material Objects marked for M.O.1: Ratol paste M.O.2: Small steel glass

Sessions Judge,

Krishna, Machilipatnam.

1

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE,

KRISHNA AT MACHILIPATNAM

Present: - Smt. Aruna Sarika,

Principal District Judge,

Krishna at Machilipatnam

Friday, this the 21st day of March, 2025

Original Suit No.41 of 2014

Between:

1. Aggala Durga Prasad (died)

2. Aggala Sravanthi, W/o. Late Durga Prasad, Hindu, age 45 years, House wife, R/o. Gollapudi, Vijayawada.

3. Aggala Sai Siddhardha, S/o. Late Durga Prasad, Hindu, age 16 years, student, R/o. Gollapudi, Vijayawada.

4. Aggala Sai Manideep, S/o. Late Durga Prasad, Hindu, age 12 years, student, R/o. Gollapudi, Vijayawada. (Plaintiff No. 4 being minor represented by his mother/natural guardian, Plaintiff No.2 Aggala Sravanthi) (Plaintiff Nos. 2 to 4 are added as LRs of the deceased 1st plaintiff as per orders in I.A.No. 63/2021, dt. 23.02.2023)., … Plaintiffs A n d

1. Peddi Subha Anjaneyulu, S/o Koteswara Rao, Hindu, age 35 years, properties, resident of D.No. 19/96-5, Chilakalapudi, Machilipatnam.

2. Pamarthi Manga Rao, S/o Durgaiah, Hindu, age 71 years, business, R/o D.No. 17/96C, Edepalli, Machilipatnam.

3. Thota Ranga Arjuna Rao, S/o Veera Swamy Hindu, age 27 years, business, R/o. Edepalli, Machilipatnam. (Defendants 2 and 3 are added as per orders in IA.188/2014 dt.30.6.2015) … Defendants

This suit is coming before me on 07.03.2015 for final hearing in the presence of Sri. P.Madhusudhana Rao, Advocate for the Plaintiff and of Sri. K.Sai Mohan Rao, Advocate for defendant No.1, Sri. S. Balaji Rao, Advocate for defendant No. 2 and 3 and the matter having stood over for consideration till this day and the Court delivered the following:

J U D G M E N T

This is an Original Suit filed by the plaintiffs against the defendants praying the Court to grant decree of Specific Performance of agreement of 2

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

sale, dt.21.09.2013 by directing the defendants to execute regular

Registered Sale Deed in favour of plaintiff Nos. 2 to 4 in respect of plaint schedule property i.e., a dry land in an extent of Ac.4.35 cents in

R.S.No.73/1 situated at Mekavaripalem, Bandar Mandal, SRO,

Machilipatnam bounded by,

East: Land of Valisetty Narasiimha Rao,

South: Donka,

West: Land of Yarlagadda Neelachalam

North: Meka vari land, in the place of agreement of sale, dt. 21.09.2013 after receiving the balance of sale consideration of Rs.26,63,000/- or alternatively to pass a decree for

Rs.21,22,000/- in favour of the plaintiff Nos. 2 to 4 against the defendants with subsequent interest at 12% per annum from the date of agreement till the date of realiazation and to grant costs. If the defendant No.1 failed to perform his part of contract and the court directly register the schedule property in favour of the plaintiff.

3. The averments of the plaint, in brief, are as follows: - “Originally the schedule property is a dry land in an extent of Ac.4.35 cents in R.S.No.73/1, situated Mekavaripalem, Bandar Mandal and the same was purchased by the defendant No.1 with his self-earnings from one Penumaka Amma Rao, on 10.8.2005 under registered sale deed in doc. No.3315/2005 of

Machilipatnam SRO and since then the defendant No.1 is in possession and enjoyment of the schedule property with absolute right, title possession and enjoyment and interest over the schedule property. The defendant No.1 offered the plaintiff No.1 to sell the plaint schedule property and the plaintiff

No.1 agreed to purchase the same and after negotiations, the rate was fixed at Rs.47,85,000/- (Rupees forty seven lakhs eighty five thousand only) for the total extent of Ac.4.35 cents, i.e. Rs. 11,00,000/- per acre. Accordingly the deceased 1st Plaintiff agreed to purchase the plaint 3

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

schedule property for the said price from the defendant, the terms and conditions are reduced into writing. The deceased 1st plaintiff and the defendant entered into an agreement of sale on 21 9.2013 and the deceased 1st plaintiff paid Rs.21,22,000/- towards advance to the defendant No.1 on the same day and the balance amount of Rs.26,63,000/- has to be paid by the deceased 1st plaintiff within 90 days i.e, 20.12.2013. If the deceased 1st plaintiff failed to pay the balance on or before 90 days i.e., 20.12.2013 from the next day onwards i.e., from 21.12.2013 the deceased 1st plaintiff has to pay interest at 12% p.a on the balance amount and accordingly the defendant No.1 executed non-possessory agreement of sale in favour of the deceased 1st plaintiff on the very day itself i.e. on 21.9.2013 in respect of the plaint schedule property and handed over the

Xerox copy of the title deeds and agreed to hand over the original title deeds at the time of registration. The deceased 1st plaintiff is ready with balance sale consideration of Rs.26,63,000/- even on 21.09.2013, but at the request of the defendant No.1, the said balance amount was kept with the deceased 1st plaintiff, thereby the deceased 1st plaintiff continuously ready with money since the date of non-possessory agreement of sale and ready and willing to perform his part of contract of sale. The deceased 1st plaintiff approached the defendant No.1 several times and requested him to execute regular registered sale deed in his favour after receiving the balance of sale consideration, but the defendant No.1 is postponing to execute registered sale deed in favour of the deceased 1st plaintiff on one pretext or other and that the defendant No.1 failed to perform his part of contract of sale. While the matter stood thus, the deceased 1st plaintiff reliably came to know that the defendant No.1 with a malafide intention, to cause wrongful loss to the deceased 1st plaintiff, by violating the terms and conditions of the non-possessory agreement of sale executed by him in favour of the deceased 1st plaintiff, the defendant No.1 is trying to alienate the schedule property to third parties and some intending purchasers are 4

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

also coming and making enquiries about the plaint schedule property. The present government declared the Machilipatnam Port due to that reason, the land values in and around Machilipatnam were abnormally increased, thereby with an evil intention to get more money for the plaint schedule property, the defendant No.1 is trying to alienate the plaint schedule property to third parties. The deceased 1st plaintiff also made oral demands and as well as through elders to execute registered sale deed in his favour, but the defendant No.1 is trying to alienate the plaint schedule property to some others with an intention to cause wrongful loss to the deceased 1st plaintiff and to get wrongful gain for himself. The deceased 1st plaintiff after came to know the said fact, got issued a registered legal notice on 21.8.2014 through his Advocate, demanding the defendant No.1 to come and execute regular registered sale deed in his favour. The defendant No.1 refused the said notice on 22.08.2014, neither gave reply nor came forward to execute registered sale deed in favour of the deceased 1st plaintiff.

Therefore, the deceased 1st plaintiff has no other go except to file suit for specific performance of contract of sale in his favour and against the defendant No.1. After filing of the suit and after Court was pleased to order urgent notice on 2.9.2014, the 1st defendant with a malafide intention to defeat and deprive his rights in the plaint schedule property, executed two registered GPAs on 10.9.2014 i.e., one in favour of the 2nd defendant vide doc.5829/2014 before SRO, and another GPA in favour of the 3rd defendant vide doc. No.5828/-2014 before SRO, Machilipatnam. Hence the defendant Nos. 2 and 3 are added as proper and necessary parties. During pendency of the above suit, the 1st plaintiff has got issued public notice which is published in Eenadu Daily News paper in Krishna District Edition on 7 10.2014 (amended as per IA. 188/2014, dt.30.6.2015). The 1st plaintiff died 29.4.2021, leaving behind his wife and two sons as his LRs and that they were added as plaintiff Nos 2 to 4 in the suit”.

5

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

4. The defendant No.1 filed written statement, the averments made therein, in brief, are as follows: “The defendant No.1 denied all the allegations of the plaintiff mentioned in the plaint. He contended that he never offered to sell the plaint schedule property to the plaintiff No.1 and the plaintiff No.1 never paid any amount to him as advance. The so called agreement of sale is a rank forgery and he never executed any agreement of sale in favour of the plaintiff No.1 and the plaintiff No.1 never offered the balance of consideration of Rs.26,63,000/-. When the agreement of sale itself is a rank forged one, the question of paying balance of consideration does not arise and the plaintiff created a story for the purpose of this suit and there are no bonafidies on the part of the plaintiff No.1. The plaintiff

No.1 has no capacity to pay an amount of Rs.21,22,000/- and he is working as a clerk under one K.Bala Koteswara Rao, as such the plaintiff No.1 has no capacity to pay such huge amount. He admitted that, while the matter stood thus, the plaintiff No.1 reliably came to know that the defendant No.1 with a malafide intention to cause wrongful loss to the plaintiff No.1 by violating the terms and conditions of the non possessory agreement of sale executed in favour of the plaintiff No.1, the defendant No.1 is trying to alienate the schedule property to third parties and some intending purchasers are also coming and making enquiries about the plaint schedule property, the present government declared Machilipatnam Port, due to that reason, the land values in and around Machilipatnam are abnormally increased, thereby the plaintiff No.1 with an evil intention to get more money for the plaint schedule property. The defendant No.1 is trying to alienate the plaint schedule property to third parties, that the plaintiff No.1 made several oral demands as well as through the elders to execute registered sale deed in favour of the plaintiff No.1 but the defendant No.1 with an intention to cause wrongful loss to the plaintiff No.1 and to get wrongful gain. The defendant No.1 is the absolute owner of the schedule property and he executed a registered sale deed in favour of Thota Arjuna 6

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Rao and Pamarthi Manga Rao for a valuable consideration of

Rs.10,00,000/- per acre. Since, then the said Manga Rao and Arjuna Rao have been in possession and enjoyment of the schedule property. The

Plaintiff had failed to prove about his ready and willingness to pay the balance of sale consideration Rs.26,63,000/- in order to show his bonafidies and the plaintiff No.1 failed to submit any documentary proof to show that he is having Rs.26,63,000/- to perform his part of contract of sale and there are no bonafidies for the plaintiff No.1 for his readiness and willingness to perform the contract of sale. The plaintiff No.1 is liable for prosecution for creating a forged and fabricated document. There is no cause of action for the plaintiff No.1 to file this plaint. Hence, prays to dismiss the suit with costs.”

5. The defendant Nos.2 and 3 filed their written statement, the averments made therein, in brief, are as follows: “The material allegation of the plaint that the plaint schedule property is dry land in an extent of Ac.4- 35cts situated in Mekavanipalem village is true and correct. The other allegation that the property was purchased by the 1st defendant from his vendor is also correct and that the 1st defendant is in possession and enjoyment of the property is also correct. They denied the allegations of the plaint that the 1st defendant offered to sell the plaint schedule property to the plaintiff No.1 and he agreed to purchase the same for Rs.47,00,000/- @

Rs.11,00,000/-per acre and that the plaintiff No.1 paid an amount of Rs.21,22,000/-to the 1st defendant on the same day etc., as not true and correct. The defendant Nos 2 and 3 are the G.P.A Holders of the 1st defendant and later they have put in possession and enjoyment of the plaint schedule property. They purchased the plaint schedule property under agreement of sale-cum-G.P.A and they are bonafide purchasers for a valuable consideration. The alleged paper publication is not known to them.

They are the bonafide purchasers without any notice for a valuable 7

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

consideration. They strongly suspect that the suit agreement must have been brought into existence by forging the signature of the landlord. Basing on the GPA issued by 1st defendant in favour of defendant Nos.2 and 3, dt 10.9.2014, the 2nd defendant has executed sale deed in favour of Tirumala

Gudimella Pushpa house on 31.12.2014 vide doc. No.9427/2014 for a valuable consideration of Rs.17,20,000/- and so far as 3rd defendant is concerned, he too executed sale deed in favour of the Tirumala Gudimella

Srinivas on 31.8.2014 in respect of the plaint schedule property for a valuable consideration of Rs.16,00,000/- vide doc.No.9408/2014, therefore both the defendants are already sold the property to one Gudumella

Srinivas, in turn the said Gudimella Srinivas sold the plaint schedule property to one Keerthi Srinivasa Solutions Pvt. Ltd., rep. by Managing

Director Kota Sri Ranga Satya Balaji for a valuable consideration of

Rs.74,70,000/- on 21.10.2021 vide doc.No.8901/2021 and that right now the property stands in the name of Keerthi Srinivasa Solutions Pvt. Ltd. So, basing on the said sale deed, the said Keerthi Srinivasa Solutions Pvt. Ltd., applied for permission for conversion of the land from wet land into non- agricultural purpose, accordingly the RDO accorded sanction in proceedings No.RCF577/2022, dt.26.4.2022. Therefore at present the schedule property stands in the name of Keerthi Srinivasa Solutions Pvt.

Ltd (Amended as per orders in IA.253/2023, dt.20.3.2024. Hence, prays to dismiss the suit with costs”. After adding the defendant Nos. 2 and 3, the defendant No.1 filed additional written statement contending that the plaintiffs themselves have to prove all the averments mentioned in the plaint, excepting those that are specifically admitted herein. The defendant

No.1 craves to leave the contents of main written statement in the suit to read as part and parcel of the additional written statement. There is no cause of action of the plaintiff to file the suit and the one mentioned is not true and correct. Hence, prays to dismiss the suit.

8

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

6. Taking into consideration of the above pleadings, the following issues framed for trial :

1. Whether the agreement of sale dt. 21.09.2013 is true, valid and binding on the defendant No.1?

2. Whether the agreement of sale is a forged one?

3. Whether the plaintiff No.1 is ready and willing to perform his part of contract?

4. Whether the registered sale deed executed by 1st defendant in favour of defendant Nos. 2 and 3 is valid and binding?

5. Whether the defendant Nos. 2 and 3 are bonafide purchasers under agreement of sale-cum-G.P.A holders?

6. Whether the plaintiff is entitled for returned of earnest money of Rs.21,22,000/- with interest from 1st defendant ?

7. To what relief ?

7. To substantiate his case, the plaintiff No.1 got examined himself as

PW.1, got marked Ex.A.1 to A6 on his behalf. The plaintiff No.1 also examined one Kommuri Rama Koteswara Rao Naidu, S/o. Koteswara Rao as PW.2 on his behalf. The defendants examined defendant No.3 as DW.1 and he got examined K.Jagan Mohan Rao, S/o. Venkateswar Rao, Sub

Registrar, Machilipatnam as DW.2 and got marked Ex.X.1 to X3 on their behalf.

8. I have heard the submissions of the learned counsel for plaintiffs and defendants. I have perused the material on record including the pleadings, evidence adduced on behalf of the plaintiff and defendants i.e. oral and documentary.

9. The learned counsel for the plaintiffs argued that the defendant No.1 agreed to sell the plaint schedule property to the plaintiff No.1 for 9

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Rs.47,85,000/- and they both entered into an agreement of sale on 21.09.2013 and the plaintiff No.1 paid an amount of Rs.21,22,000/- towards advance on the same day and the balance amount of

Rs.26,63,000/- has to be paid by the plaintiff No.1 within 90 days i.e., 20.12.2013 and if the plaintiff No.1 fails to pay the balance on or before 90 days from the next day onwards i.e., from 21.12.2013 the plaintiff No.1 has to pay interest at 12% per annum on the balance amount. He further argued that the plaintiff No.1 approached the defendant No.1 several times and requested to execute regular registered sale deed in his favour after receiving the balance ale consideration, but the defendant No.1 postponing the same on one pretext or other and evading to execute a registered sale deed in favour of the plaintiff with dishonest and fraudulent intention of cheating the plaintiff No.1 and there is clause mentioned in the agreement of sale, dt.21.09.2013 that the agreement will be forfeited if the plaintiff fails to pay the balance on or before 90 days i.e., 20.12.2013 from the next day onwards i.e., from 21.12.2013 the plaintiff No.1 has to pay the interest at 12% on the balance amount. The plaintiff is ready and willing to perform his part of contract. The plaintiff got issued registered notice on 21.08.2014 through his advocate demanding the defendant No.1 to execute the sale deed in his favour, but the defendant No.1 did not choose to register the sale deed in favour of the plaintiff. Hence, plaintiff is obliged to file the suit for specific performance of contract dt.21.09.2013. He further argued that after filing the suit the defendant No.1 with a malafide intention executed two registered GPS on 10.09.2014 one in favour of defendant No.2 and 3 respectively and that the plaintiff got issued public notice which is published in Eenadu Daily News paper in Krishna District on 07.10.2014 and on 29.04.2021 and later the plaintiff No.1 died on 29.04.2021 leaving behind his wife and two sons as his LRs and that they were added as plaintiff Nos.

2 to 4 in the suit. He further argued that the defendant No.1 gave GPA to defendant Nos. 2 and 3 and the property sold to them was marked as 10

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Ex.X.1 and Ex.X.2. He further argued that the defendant No.1 did not turn up to give evidence before the court and he was not examined by other defendants also. He further argued that it is the duty of the defendant No.1 to prove Ex.A.1 is forged document. He further argued that the plaintiff

No.1 proved Ex.A.1 by examining himself and by examining the attestor of

Ex.A.1 agreement of sale. Hence, adverse inference can be drawn against the defendant No.1 He further argued that after receiving the notice under

Ex.A.2 the defendant No.1 sold the property to defendant Nos. 2 and 3, under these circumstances the said sale is not genuine and it shows the conduct of the defendant No.1. He further argued that the plaintiff No.1 is always ready and willing to perform his part of contract, but the defendant with an intention of cheating postponed the same on pretext or other. He further argued that Ex.X1 and X2 are collusive documents and the defendant Nos. 2 and 3 are not bonafide purchasers. In the cross examination of DW.1, he categorically admitted that as Port is going to establish due to which the land values of the sites are going hike. He further argued that defendant No.1 did not enter into the witness box and further the defendant Nos. 2 and 3 are not concerned to the readiness and willingness, it is their only concerned if they are Bonafide purchasers or not? Finally he rests his arguments praying to decree the suit.

10. Per contra, the learned counsel for the defendant Nos. 1 to 3 argued that at first the suit was filed against defendant No.1 only and later known that defendant No.1 executed sale deeds in favour of defendant Nos. 2 and 3 and that they both are added as defendant Nos. 1 and 3 respectively.

Defendant Nos. 2 and 3 also alienated the suit properties to the third parties. He further argued the defendant Nos. 2 and 3 never made attempt to brought the 3rd party whom they sold the property on record. Title is transferred in the name of 3rd parties. He further argued that the plaintiff has to take steps to bring them on record. He further argued that after 11 11

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

months he issued notice to the defendant No.1 and later he filed suit on 26.08.2014 and the plaintiff has not waited for time given in notice/Ex.A.3.

by the time of filing the suit notice was not received by defendant No.1. He further argued that notice is mandatory. He further argued that the plaintiff did not prove his readiness and willingness, he kept quiet for 11 months from the date of Ex.A.1, it is the duty of the plaintiff No.1 to prove that he had sufficient amount to fulfill the agreement. Hence, prays to dismiss the suit”.

11. Before pleadings and evidence are analyzed issue wise and are examined in juxta position, it is necessary to refer the details of the documentary evidence which is as follows: - “Ex.A.1 is the agreement of sale, Ex.A2 is the office copy of legal notice got issued to defendant Nos.1 on 21.08.2014, Ex.A.3 is the postal receipt, dt. 21.08.2014, Ex.A.4 is the refused legal notice of defendant No.1, dt. 22.08.2024, Ex.A.5 is the registered GPA in favour of defendant No.2, dt. 10.09.2014, Ex.A6 is the registered GPA in favour of defendant No.2, dt.10.09.2014, Ex.X.1 is the attested copy of registered sale deed vide doc. No. 9407/2014, dt.

31.12.2014 of SRO, Machilipatnam, Ex.X.2 is the attested copy of registered sale deed, vide Doc. No. 9408/2014, dt. 31.12.2014 of SRO,

Machilipatnam and Ex.X3 is the attested copy of registered sale deed, vide

Doc. No.8901/2021, dt. 31.12.2014 of SRO, Machilipatnam

12. Before taking up of the points for determination, it is necessary to mention that the pleadings of plaintiff were already extracted supra in detail.

I have gone through the pleadings, oral and documentary evidence.

13. From the analysis of the pleadings, it is the plaintiffs who have to prove that the Non-Possessory Agreement of Sale, dt.23.11.2006 is still in force as on the date of filing of the suit and that they are always ready and 12

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

willing to perform their part of contract by way of expressing to pay the balance sale consideration of Rs.10,00,000/- to the defendant. The plaintiffs have also to prove that time is not essence of contract and that performance of their part of contract would arise only after the defendant get the suit schedule property surveyed and fix boundaries to it. The burden of proof and initial onus lies on the plaintiffs to establish the above referred issues. As per the provisions of Section 20 of Specific Relief Act, 1963 the plaintiffs have to prove that they are ready and willing to perform their part of contract. The impugned Non-Possessory Agreement of Sale Deed, dt.23.11.2006 which is marked as Ex.A.1, would show that the plaintiffs entered into the said agreement of sale with the defendant No.1 with an intention to purchase the suit schedule property from the defendant No.1 as if they accepted that the defendant is the absolute owner of the suit schedule property. The Agreement of Sale, dt.21.09.2013 would also show that both plaintiff No.1 and defendant No.1 entered into an agreement.

14. POINT NOS.1, 2, 3 and 5 :

a) The plaintiff No.1 filed suit seeking specific performance of agreement to sell dt.21.09.2013 said to be executed by defendant No.1 in his favour.

b) To substantiate his claim, the plaintiff No.1 himself was examined as

PW.1 and Ex.A.1 to A6 were marked on his behalf. The plaintiff got examined one Kommuri Rama Koteswara Rao Naidu, S/o. Koteswara Rao

Dasari Baba Kamali Naga Malleswara Rao, S/o. Late Panduranga

Brahmarao as PW.2. Since the present suit is filed seeking specific performance of agreement to sell involving immovable property, it is necessary to refer the documentary evidence marked on behalf the plaintiff

before scrutinizing the evidence of plaintiff i.e. PW.1 and PW.2 on his

behalf. Ex.A.1 is the agreement of sale. A perusal of Ex.A.1 it would show 13

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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that the on 21.09.2013 the plaintiff No.1 agreed to purchase the Plaint

Schedule Property from the defendant No.1 in an extent of Ac.4.35 cents in total Rs.47,85,000/- and the plaintiff paid an amount of Rs.21,22,000/- to the defendant No.1 on the same day in the presence of attestors and scribe. The recitals further shows within 90 days the plaintiff No.1 has to pay the balance amount i.e, on 20.12.2013 and if he fails to pay the balance on or before 20.12.2013, from the next day onwards i.e, from 21.12.2013 he has to pay interest at 12% per annum on the balance amount. Ex.A2 is the office copy of legal notice got issued to defendant

Nos.1 on 21.08.2014, Ex.A.3 is the postal receipt, dt. 21.08.2014, Ex.A.4 is the refused legal notice of defendant No.1, dt. 22.08.2024, Ex.A.5 is the registered GPA in favour of defendant No.2, dt. 10.09.2014, Ex.A6 is the registered GPA in favour of defendant No.2, dt.10.09.2014, Ex.X.1 is the attested copy of registered sale deed vide doc. No. 9407/2014, dt.

31.12.2014 of SRO, Machilipatnam. A perusal of Ex.X.1 would show that it was it was executed on 31.12.2014 by Peddi Subha Anjaneyulu represented by General Power of Attorney Holder Pamathi Manga Rao in favour of Srimath Tirumala Gudimella Pushpahas. Ex.X.2 is the attested copy of registered sale deed, vide Doc. No. 9408/2014, dt. 31.12.2014 of

SRO, Machilipatnam. A perusal of Ex.X.2, dt. 31.12.2014 would show that it was executed by Peddi Subha Anjeneyulu, represented by GPA holder

Thota Ranga Arjuna Rao in favour of srimath Tirumala Gudimella

Pushpahas and Ex.X3 is the attested copy of registered sale deed, vide

Doc. No.8901/2021, dt. 31.12.2014 of SRO, Machilipatnam. A perusal of

Ex.X.3 would show that it was executed on 27.10.2021 by Srimath

Tirumala Gudimella Pushpahas, in favour of Keethi Srinivasa Solutions

Private Limited.

c) Coming to the evidence adduced by the plaintiff, as referred supra, the plaintiff himself was examined as PW.1 and marked Ex.A.1 to A6 on his 14

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

behalf. PW.1 in his chief-examination which was taken in the form of solemn sworn affidavit had reiterated his pleaded case and transcribed the same into direct evidence. In his cross examination made on behalf of defendant No.1, he deposed that he is not an income tax assesse. He had not shown the alleged sale consideration in his income tax returns. He admitted that he has no documentary proof to show that he paid

Rs.21.22.000/- to defendant No.1 as on the date of the alleged Ex.Al either by way of bank statement or any recorded proof. He deposed that he had not file any documentary proof to show he had Rs.26,63,000/ which is the remaining sale consideration to be paid to defendant No.1 to show his readiness and willingness. With regard to the agreement, PW.1 deposed that Hundred Rupee stamp paper on which Ex A.1 was allegedly written was purchased in the name of D.1. He admitted that Ex A.1 stamp was sold to Aggoli Durga Prasad S/o.Apparao, Gollapudi. He admitted that beneath the signatures of the executant/D.1 he has not mentioned the date of

Ex.A.1 document. He admitted that D1 sold away the schedule property to

D3. He admitted that Ex.A.1 was not got registered by him. There is no special reason for non execution of Ex.A.1 He obtained link document of D.I relating to Ex.A.1. The rest of the cross examination is nothing but suggestions to the effect that D.1 never entered in to an agreement of sale with him and never agreed to sell the schedule property to him and that the thumb impressions of D1 were obtained on blank stamp papers and fabricated and created Ex A.1 for wrongful gain and that the suit instituted by him is not maintainable as he had not shown his readiness and willingness to perform his part of contract and that Ex.A.1 is a forged document and that he is deposing false and he is not entitled for any relief and that he had no capacity to pay the amount as alleged in Ex.A.1 and that

D.1 never executed Ex.A.1 and never entered in to any agreement with him and he is deposing false and PW.1 denied the same as not true. In the further cross examination made on behalf of defendant Nos. 2 and 3, the 15

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

plaintiff had categorically admitted that in his chief examination affidavit he had not mentioned about his avocation and occupation. He admitted that he had not filed any proof to show that he got Rs.26,63,000/- with him to perform his part of contract. He deposed that he did not try to get Ex.A.1 registered even though the part of sale consideration was very huge. He admitted that he did not specifically mention the date on which he requested the defendant No.1 to come forward for execution of regular sale deed in pursuance of Ex.A.1. He deposed that on 07-09-2014 he came to know that DI was going to sell the schedule property. Thereafter he got issued a notice under Ex.A.2. He deposed that he did not issued any notice to the S.R.O. Machilipatnam requesting not to entertain any registration vis- a-vis Ex.A.1 schedule property. He admitted that by the date of issuing paper publication the schedule property was sold and registered in favour of

D.2 and D.3. He further admitted that it took eight months time from the date of execution of Ex.A.1 i.e., on 21-09-2013 for issuing a legal notice covered under Ex.A2. There is no reason for waiting for such eight months time to issue notice to D.1. He admitted that he did not mention in his chief affidavit that D2 and D.3 having known about Ex.A.1 in between him and

D1 entered in to sale transaction with D.2 and D.3. The rest of the cross examination is nothing but suggestions to the effect that D2 and D.3 do not have idea about execution of Ex.A.1 in between him and D.1 that he did not have the alleged balance sale consideration with him by the time of issuing

Ex.A2 or any other date subsequent to it and that Ex.A.1 was a false and fabricated document and that falsely obtained the thumb impressions of D.1 on empty stamp papers and that D2 and D.3 are bonafide purchasers of the schedule property and that he failed to prove his readiness and willingness to perform his part of contract and that he did not deposit the balance sale consideration in to the court at the time of institution of the suit and that he is not entitled for any relief let alone the relief of Specific Performance of

Ex.A.1 and PW.1 denied the same as not true.

16

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

d) The plaintiff examined one Kommuri Rama Koteswara Rao Naidu,

S/o. Koteswara Rao as PW.2. PW.2 in his chief examination which was taken in the form of solemn sworn affidavit, in support of the case of the plaintiff, had deposed that he knows the Plaintiff/Aggala Durga Prasad and the Defendant No.1/Peddi Subha Anjaneyulu and others. He was called by the Plaintiff Durga Prasad, stating that he wants to purchase the plaint schedule property and requested to come to him to attest a document. As per the instructions of the Plaintiff and the Defendant, the Scribe, Ede

Amaleswara Rao scribed the Non-possessory Agreement of Sale on 21-09- 2013. As per the Agreement, the total sale consideration is Rs.47,85,000/- for the total extent of Acs.4.35 Cents i.e., Rs.11,00,000/- per Acre. He deposed that on that day, the Plaintiff paid an amount of Rs.21,22,000/-to the 1st defendant towards advance and the balance amount of

Rs.26,63,000/- has to be paid by the Plaintiff to the 1st Defendant within 90 days from the date of Agreement i.e., 20-12-2013; that if the Plaintiff falls to pay the balance amount on or before that date, the Plaintiff has to pay interest at the rate of 12% per annum on the balance amount from the next date of the Agreement i.e., 21-12-2013 itself. After reading over the contents of the document by the Scribe, the 1st defendant Subha

Anjaneyuiu Put thumb Mark on the document, by receiving the amount of

Rs.21,22,000/- from the Plaintiff towards advance. Thereafter, he attested the document as first Attestor. Later, one J.N.S.S. Chaluvathi attested the document as second Attestor. After that, the Scribe Ede Amaleswara Rao signed at scribe at the relevant coloumn. He deposed that the entire transaction of scribing the document, payment of advance amount to the 1st defendant by the plaintiff thumb mark of the defendant No.1 on the document and attestation of the document by him and the second Attestor and signing of the Scribe on the document were done in all their presence on the date of the document i.e., 21-09-2013. As the Plaintiff requested him to give evidence, he giving the evidence. In the cross examination he 17

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

deposed that on earlier occasions he never acted as witness for any document on behalf of plaintiff. He deposed that Ex.A.1 was prepared in the house of Subha Anjaneyulu/D.1. The document writer prepared a rough of

ExA.1 and the rough copy of Ex A.1 was with the document writer. He admitted Ex.A.1 does not reflect about preparation of rough of Ex. A.1. He deposed that he had verified the link document relating to the plaint schedule property Plaintiff purchased stamp papers for preparation of

Ex.A.1 in Sub-Registrar Office. He further deposed that half an hour after preparation of Ex.A.1 by the document writer, he signed as witness on

Ex.A.1. He further deposed that he did not write the date of his signature on

Ex.A.1 beneath his signatures. He has not received summons from the court and he is deposing at the request of plaintiff. The rest of the cross examination is nothing but suggestion to the effect that Ex.A.1 was never prepared in his presence and that he is deposing false at the behest of plaintiff and that the averments of Ex.A.1 are all false and PW.2 denied the same as not true. In the cross examination made on behalf of defendant

Nos. 2 and 3, he deposed that initially the suit was instituted against DI only but after plaintiff came to know about purchase of the property by purchasers from D.1 they were also impleaded as D2 and D3. He knows plaintiff for about ten years. He does not know D2 and D.3 and their details.

The rest of the cross examination is nothing but suggestion to the effect that he never witnessed Ex.A.1 transaction and that he is deposing false at the request of plaintiff as he is his close associate and that with an intention to cause wrongful damage to D.2 and D.3 and they were impleaded as parties and PW.2 denied the same as not true.

(e) The present suit being filed for Specific Performance of contract and on the pleaded facts of both parties, it is just and proper to refer the evidence adduced on behalf of the defendants before scrutinizing the evidence adduced by plaintiffs. As referred supra, the defendant No.2 was 18

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

examined himself as D.W.1. D.W.1 in his chief examination, which was taken in the form of solemn sworn affidavit had reiterated his pleaded case and transcribed the same into direct evidence. DW.1 in his cross examination he deposed that he studied upto 10th Class and working as a private employee. He deposed that defendant No.1 is neither his relative nor his friend. He does not know A. Durga Prasad/PW1 herein and why

PW1 filed the present suit against the defendant No.1. He deposed that he did not go through the documents filed in this suit hence, he does not know the contents of them. He deposed that he purchased the suit schedule property from defendant No.1. The learned counsel for plaintiffs shown

Ex.A6 to the witness and he confronted that he purchased the property under the said document/Ex.A6. Defendant No.1 put his thumb impression on Ex.A6. He deposed that he sold the property covered under Ex.A6 to one Puspha Hass. He knows the contents of Ex.A6. He did not give any amount to Defendant No. 1 after he sold the property covered under Ex.A6.

After deposing so, witness volunteered that he has already given the entire amount to Defendant No.1 while executing Ex.A6 itself. He admitted that the Ex.A6 was executed for G.P.A., but not a sale deed. He does not know whether the present suit was already filed by issuing notice to Defendant

No. 1 prior to the date of execution of Ex.A6 dated 10.09.2014 and that a public notice was issued after the date of execution of Ex.A6. He deposed that he came to know about the present suit only after receiving the summons from this Court. He does not know about Ex.Al/agreement of sale. He does not know about the financial status of Plaintiff No.1 and about his avocation and that Sri Sai Vardhini Promoters and Developers at Chitti

Guduru belong to Plaintiff No. 1 and he also does not know that the plaintiff

No. 1 is running a business under name and style of Port City Real Estate at Machilipatnam. The rest of the cross examination is nothing but suggestions to the effect that the Defendant No.2 and he knows about the issuance of public notice dated 07.10.2014 in Krishna District Edition, 19

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Eenadu Daily News paper and that the Defendant No.1 sold the suit schedule property to the plaintiff No.1 in the year 2013 under Ex.A1 and that he and defendant No. 1 and 2 knowing the same created Ex.A5 and A6 in collusion with each other and that the defendant No.1 to 3 including him created Ex.A5 and A6 though they aware that the Defendant No.1 already sold the property to plaintiff No. 1 and pendency of present suit and that he did not purchase the suit schedule property from Defendant No.1 and that

Ex.A5 and A6 are created and that therefore the Ex.A5 and A6 which are not binding on the plaintiff and that as they are not legally valid documents.

DW1 is recalled as per orders in IA.No. 199/2024 in O.S.No.41/2014 dated.

18.07.2024, present and sworn in for further examination and in the further cross examination he deposed that he and Defendant No.2 together sold away the suit schedule property to Gudimella Pushpahasan. They did not sell the property to Tirumala Gudimella Srinivas. He deposed that he has given evidence before this Court on 06.07.2023. He does not know whether

Gudimella Pushpahasan sold away the property to Keerthi Srinivasa

Solutions Private Limited. He deposed that Balaji purchased the property from Gudimella Pushpahasan and he does not know whether Balaji sold away the property or not. He admitted that all the transactions by Gudimella

Pushpahasan and Balaji are prior to his evidence on 06.07.2023. He knows about all these transactions by the time he gave evidence before this Court on 06.07.2023. He deposed that Defendant No. 1 never disclosed him about when and to whom he sold away the property. The rest of the cross examination is nothing but suggestion to the effect that he knows about

Ex.A.1 suit agreement and the transaction thereon, but intentionally deposing false by creating the documents referred in Ex.A.1 and A6 along with defendant Nos. 1 to 3 and that he is not bonafide purchaser of defendants and that Ex.A.5 and A6 are collusive documents and DW.1 denied the same as not true.

20

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

(f) In order to prove their contention that defendant Nos. 2 and 3 are the bonafide purchases, they examined K.Jagan Mohan Rao, Sub Registrar,

Machilipatnam as DW.2. DW.2 has given evidence on behalf of defendants on receipt of witness summons vide orders dt. 28.11.2024 passed in

I.A.252/2024 in O.S.41/2014. In his chief examination he deposed he has been working as Sub Registrar, Machilipatnam since 04.06.2023. He brought attested copies of registered sale deeds vide Doc. Nos. 9407/2014, 9408/2014, dated 31.12.2014 and registered sale deed vide Doc. No.

8901/2021, dated 27.10.2021 registered in their Sub Registrar's Office at

Machilipatnam. The attested copy of registered sale deed vide Doc. No.

9407/2014, dated 31.12.2014 of SRO Machilipatnam was marked as

Ex.X.1. The attested copy of registered sale deed vide Doc. No. 9408/2014,

dated 31.12.2014 of SRO Machilipatnam was marked as Ex.X.2. The

attested copy of registered sale deed vide Doc. No. 8901/2021, dated 27 10.2021 of SRO Machilipatnam was marked as Ex.X3. He deposed that

Ex.X1 dated 31.12.2014 was executed by Peddi Subha Anjaneyulu represented by General Power of Attorney Holder Pamarthi Manga Rao in favour of Srimath Tirumala Gudimella Pushpahas, S/o Srimath Tirumala

Gudimella Varadacharyulu. Ex.X2 dated 31.12.2014 was executed by

Peddi Subha Anjaneyulu represented by General Power of Attorney Holder

Thota Ranga Arjuna Rao in favour of Srimath Tirumala Gudimella

Pushpahas, S/o Srimath Tirumala Gudimella Varadacharyulu. Ex.X3 dated 27.10.2021 was executed by Srimath Tirumala Gudimella Pushpahas, S/o

Srimath Tirumala Gudimella Varadacharyulu in favour of Keerthi Srinivasa

Solutions Private Limited. In the cross examination he admitted that Ex.X1 and X2 are executed through General Power of Attorney Holder basing on the General Power of Attornies given by Subha Anjaneyulu in favour of

Pamarthi Manga Rao and Thota Ranga Arjuna Rao respectively. He deposed that before registering a document through General Power of

Attorney Holder, they have to verify the live particulars of the executants of 21

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

General Power of Attorney. He deposed that in general practice they are accepting affidavit of the executants of General Power of Attorney or the live particulars given in documents itself will be accepted. He admitted that there is no mention of live particulars of executants of General Power of

Attorney Holder in Ex.X1 and X2 and so also affidavits are not enclosed to

Ex.X1 and X2 showing that executants of General Power of Attorney referred in Ex.X1 and X2 is alive as on the date of execution of Ex.X1 and

X2. He admitted that the property covered under Ex.X1 and X2 falls in

R.S.No. 73/1 of Mekavanipalem village. He admitted that Ex.X3 includes attested copy of notarized affidavit given by Srimath Tirumala Gudimella

Pushpahasan, S/o Varadacharyulu stating that the originals of Ex.X1 and

X2 are lost during transit and a case was lodged with the police under

Section 199, 200 of Indian Penal Code. He further deposed that Ex.X3 also contains attested copy of certificate issued by SHO, Chilakalapudi Police

Station certifying the reasons for missing/lost of originals of Ex.X1 and X2.

He admitted that in the attested copy of notarized affidavit in does not show the Ex.X3 date of missing of originals of Ex.X1 and X2, so also there is no mention in the affidavit that a paper publication was issued about missing of originals referred as falls in R.S.No. 73-1-A of Mekavanipalem village. He further admitted that Survery Certificate is not produced at the time of execution of Ex.X3 to show that R.S.No.73/1 is reallotted with R.S.No.73-1-

A under Sub Division of R. S.No. 73/1 of Mekavanipalem village. The parties to Ex X1 to X3 do not disclose to the Sub Registrar that a general notice was issued in Eenadu Daily News paper that a suit is pending before

Principal District Court, Krishna at Machilipatnam in respect of Schedule

Property referred in Ex.X.1 to X3. He deposed that he cannot say whether

Ex.X.1 to X3 are collusive documents or not. The rest of the cross examination is nothing but suggestions to the effect that they have not gone through the original of Ex .X1 and X2 before registering Ex.X3 and DW.2 denied the same as not true.

22

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

(g) On a combined reading of the testimonies of P.W.1 and P.W.2,

D.W.1 and 2 and the documentary evidence Ex.A.1 to Ex.A.6 and Ex.X.1 to

Ex.X.3 would show that there is no dispute that originally the Schedule

Property is a dry land in an extent of Ac.4.35 cents in RS No. 73/1 situated at Mekavaripalem, Bandar Mandal and the same was purchased by the defendant with his self earnings from one Penumaka Amma Rao on 10.08.2005 under registered sale deed vide doc. No. 3315/2005 of

Machilipatnam SRO and since then the defendant is in possession and enjoyment of the Schedule Property with absolute right, title possession and enjoyment and interest over the Schedule Property. It is the contention of the plaintiff that the defendant No.1 offered to sell the Plaint Schedule

Property to the plaintiff No.1 for a total sale consideration of Rs.47,85,000/- for total extent of Ac.4.35 cents i.e., Rs.11,00,000/- per acre. It is the further contention of the plaintiff that on the date of execution of Ex.A.1, Agreement of Sale the plaintiff No.1 had paid an amount of Rs.21,22,000/- to the defendant No.1 as advance sale consideration. P.W.2 is acted as 2nd attestor i.e., witness to Ex.A.1 Agreement of Sale. P.W.2 on behalf of plaintiff had deposed that he was called by the plaintiff Durga Prasad stating that as per the instructions of the plaintiff and defendants the scribe,

Ede Amaleswara Rao scribed the Non-possessory Agreement of sale on 21.09.2013. As per the Agreement, the total sale consideration is

Rs.47,85,000/-for the total extent of Acs.04-35 Cents i.e., Rs.11,00,000/- per Acre. He deposed that on that day, the Plaintiff paid an amount of Rs.21,22,000/-to the 1st defendant towards advance and the balance amount of Rs.26,63,000/- has to be paid by the Plaintiff to the 1st

Defendant within 90 days from the date of Agreement i.e., 20-12-2013 and further there is a clause that if the Plaintiff falls to pay the balance amount on or before that date, the Plaintiff has to pay interest at the rate of 12% per annum on the balance amount from the next date of the Agreement i.e., 21- 12-2013 itself. After reading over the contents of the document by the 23

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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Scribe, the 1st defendant Subha Anjaneyuiu put thumb Mak on the document, by receiving the amount of Rs.21,22,000/- from the Plaintiff towards advance. Thereafter, he attested the document as first Attestor.

Later, one J.N.S.S. Chaluvathi attested the document as second Attestor.

After that, the Scribe Ede Amaleswara Rao signed at Scribe at the relevant coloumn. He deposed that the entire transaction of scribing the document, payment of advance amount to the thumb mark 1st defendant by the

Plaintiff, put of the 1st defendant on the document and attestation of the document by him and the second Attestor and signing of the Scribe on the document were done in all their presence on the date of the document i.e., 21-09-2013. As referred supra, the recitals of Ex.A.1 would show that both plaintiff No.1 and defendant No.2 agreed to perform the remaining part of agreement within 90 days either by way of paying the amount to PW.1, which was received by the defendant from the plaintiff No.1 towards advance sale amount or by any other mode and time fixed for getting registered the regular Sale Deed is 20.01.2007. The plaintiff No.1 herein being vendee shall pay the balance sale consideration of Rs.26,63,000/- to the defendant No.1 and get execute a Registered Sale Deed in his name.

From the above, it clearly shows that both parties had agreed to execute the regular Registered Sale Deed and fixed time for execution of regular

Registered Sale Deed. Therefore, from the recitals of Ex.A.1 it is clear that the parties had fixed time for completion of agreement of sale that was executed under Ex.A.1. In other words, as per the recitals of Ex.A.1, time is essence of contract of Ex.A.1. The evidence of P.W.1 and P.W.2 and the contents of written statement of defendant No.1 would support the recitals made in Ex.A.1. Their testimony clearly shows that the plaintiff No.1 and defendant No.1 fixed the time for performance and completion of contract as within 90 days from the date agreement of sale. As per the recitals of

Ex.A.1, it is the plaintiff No.1 who has to first perform their part of contract by way of showing his readiness with cash of Rs.26,63,000/- to pay the 24

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

same to the defendant No.1 and the same would determine that they are ready with balance sale consideration of Rs. 26,63,000/- as part of performance of contract as per agreed terms and conditions under Ex.A.1.

If the plaintiff No.1 shows his readiness as referred supra, then performance part of defendant No.1 would start.

(h) With this backdrop of factual and proved facts, now it is to determine whether the agreement of sale under Ex.A.1 is valid and binding on the parties. Similarly, it is an established fact that time is essence of contract under Ex.A.1. When that is so, the plaintiffs have to show their readiness and willingness to perform their part of contract within said stipulated period of time. As referred supra, the performance of part of contract by defendants would arise only when the plaintiffs come forward with their readiness to pay the balance sale consideration of Rs.26,63,000/- within stipulated period as agreed under Ex.A.1 Agreement. The plaintiffs in their pleadings stated that the time stipulated in the agreement was 20.12.2013 and that if plaintiff No.1 fails to pay the balance amount on or before that date, the plaintiff No.1 has to pay interest at the rate of 12% per annum on the balance amount from the next date of agreement i..e, 21.12.2013 itself.

PW.1 in his evidence had categorically stated that he had no documentary proof to show that he paid Rs.21,22,0000/- to defendant No.1 as on the date of alleged Ex.A.1 either by way of bank statement or any recorded proof. he also deposed that he had not filed any documentary proof to show that he had Rs. 26,63,000/- which is the remaining sale consideration to be paid to defendant No.1 to show his readiness and willingness and that itself shows that the plaintiffs are not ready to give the balance sale consideration at any point of time and that though time is stipulated in the contract it was never treated as essence of the contract. The above referred evidence of

P.W.1, P.W.2 and so also DW.1 and the very document i.e., Non- possessory Agreement of Sale under Ex.A.1, would clearly establishes that 25

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

time is essence of contract of Ex.A.1. It was specifically mentioned in

Ex.A.1 that by 20.12.2013 i.e., within 90 days from the execution of Ex.A.1 agreement of sale and the plaintiffs should get ready with balance sale consideration of Rs. 26,63,000/- and get registered sale deed from defendant No.1 by paying the said amount to her. The recitals of Ex.A.1 would clearly show that the plaintiff No.1 has to pay the balance sale consideration and get the regular registered sale deed from the defendant

No.1. Therefore, the stand taken by the defendants that though time is stipulated in the said agreement it was never treated as an essence of the contract is against the recitals of the very contract under Ex.A.1. Thus, the testimony of P.W.1 itself clearly establishes that the plaintiff No.1 and defendant No.1 entered into Ex.A.1 Non-Possessory Agreement of Sale by fixing a specific time for its performance and it is valid and binding on the plaintiffs and defendant No.1.

(i) The very contention of the defendant No.1 is that he never executed any agreement of sale in favour of the plaintiff No.1 and plaintiff

No.1 never offered the balance of consideration of Rs.26,63,000/- to the plaintiff. The plaintiff No.1 by examining himself and by examining 2nd attestor to Ex.A.1 and scribe of Ex.A1 as PW.2 could prove that the defendant No. 1 put his signatures on Ex.A.1 and later the PW.2 put his signature as 1st attestor on Ex.A.1. The evidence of PWs.1 and 2 about execution of Ex.A.1 is in corroboration of plaintiff as PW.1 in his evidence has deposed that Ex.A.1 was prepared in the house of defendant No.1.

PW. 2 had categorically deposed before the court and even emphasized about the execution of Ex.A.1 in the house of defendant No.1. It is obvious that the person who denies the fact will not admit even if a question is posed to him. When the defendant No.1 is vehemently contended that the signature on Ex.A.1 is not of him, obviously he would deny the said fact even if the document is shown to him. As per Sec. 73 of the Indian 26

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Evidence Act, the court can compare the signatures available on other documents to come a conclusion and to give finding about the genuiness of the said document. Invoking the above section vested on the court under

Sec.73 of Evidence Act when this court carefully perused the signature on

Ex.A.1 with the signatures of the defendant No.1 herein made on

Vakalathnama, chief examination affidavit and the signature put by him

before the court on his cross examination, it clearly shows that the

signature on Ex.A.1 is put by defendant No. 1 herein. When we compared the signatures on Ex.A.1 and the admitted signatures of defendant No. 1 on the documents before this court, it clearly shows that the signature on

Ex.A.1 is tallying with the admitted signatures put by the defendant No.1

before this court. Therefore, in view of the above discussion coupled with

the reasons stated supra, the plaintiff could establish that Ex.A.1 non possessory agreement of sale was executed defendant No. 1 on 21.09.2013 at the house of the defendant No.1 and he both put his signature infront of PW. 1 and then the PW.2 put his signature as 1st attestor to Ex.A.1. The contents of Ex.A.1 i.e., terms and conditions mentioned therein are scribed by one Ede Malleswara Rao after the defendant No. 1 and plaintiff No.1 come with a conclusion as referred in

Ex.A.1 that means, the defendant No. 1 agreed to sell the plaint schedule property herein i.e., the schedule property of Ex.A.1 to the plaintiff No.1 for an amount of Rs.11,00,000/- per acre in total Rs.47,85,000/- and by receiving Rs.21,22,000/- as advance payment. When the contents of

Ex.A.1 are proved to be made to the understanding of plaintiff and defendant No. 1 and herein, it shows that the sale transaction agreed under

Ex.A.1 should be completed within 90 days from the date of execution of

Ex.A.1 i.e., 21.09.2013.

(j) Coming to the payment of Rs. 21,22,000/- by plaintiff No.1 to defendant No. 1 towards part of sale consideration on 21.09.2013 at the 27

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

time of execution of Ex.A.1 is concerned, the plaintiff as PW.1 deposed that he paid Rs. 21,22,000/- to the defendant No. 1 towards advance sale consideration out of sale consideration of Rs.47,85,000/- and he paid the said amount at the time of execution of Ex.A.1. PW.1 deposed that he paid an amount of Rs.21.22.000/- in cash to the defendant No. 1 towards advance and at that time the defendant No.1. The defendant No.1 had received the said amount from him. The defendant No.1 did not choose to give a specific suggestion to PW.1 that he did not pay Rs.21,22,000/- to the defendant No.1 and that the defendant No. 1 did not receive the said amount from him towards advance sale consideration for purchasing of plaint schedule property herein. The PW.2 had categorically deposed that the plaintiff paid an amount of Rs.21,22,000/- as earnest money to the defendant No. 1 on 21.09.2013 at the time of execution of Ex.A.1. The defendants did not give a specific suggestion even to this witness also that the plaintiff did not pay an amount of Rs.21,22,000/- towards advance sale consideration to defendant No. 1 and what PW.2 deposed is false. So, from the evidence of PWs. 1 and 2 it clearly establishes that the plaintiff paid an amount of Rs.21,22,000/- to the defendant No. 1 in the presence of

PW. 2 towards advance sale consideration from out of agreed total sale consideration of Rs.47,85,000/- on 21.09.2013.

(k) Coming to the aspect of ready and willing of plaintiff to perform his part of contract, it is to be seen whether the plaintiff expressed his ready and willingness in performing his part of contract. The burden is on the plaintiffs to prove whether they are ready and willing to perform their part of contract. In order to obtain a decree for specific performance, the plaintiff must aver and prove that he has performed his part of the contract and has always been ready and willing to perform the terms of the contract which are to be performed by him. Section 16(c) of the Specific Relief Act mandates ‘readiness and willingness’ of the plaintiff to be averred and 28

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

proved and it is a condition precedent to obtain the relief of specific performance. As per the recital in the agreement, the plaintiff would come forward to fulfill the terms and conditions of the agreement. It is the contention of the plaintiff No.1 that as per the terms of the agreement of sale, he shall pay the balance amount of sale consideration of

Rs.26,63,000/- to the defendant No.1 within 90 days from the date of agreement of sale and shall get the suit property registered in his favour or on his behalf at his cost. He is always ready and willing to perform his part of contract and he is ready to pay balance amount of sale consideration and get the property registered in his favour at his cost. On the other hand pleadings and evidence of plaintiff No.1 is silent on steps taken by the plaintiff No.1 as expected of a reasonable person which has not been taken in the instant case namely the plaintiff has not produced any evidence either oral or documentary to establish that there was any demand made by him for the balance amount which he had to pay. No witnesses have been examined on behalf of the plaintiffs to establish that at any point of time there has been demand made by the plaintiff No.1 with the defendant No.1 by calling upon him to receive the balance amount as agreed under the agreement of sale Ex.A1. It is for the first time after a period of 8 months from the date of agreement Ex.A.1 namely on 21.08.2014 legal notice (Ex.A2) was got issued or in other words plaintiff was silent for a period of 8 months in enforcing of the agreement of sale. A perusal of Ex.A.1 it would show that the terms of the agreement under Ex.A.1 is within 90 days the plaintiff has to pay the balance amount i.e, on 20.12.2013 and if he fails to pay the balance on or before 20.12.2013, from the next day onwards i.e, from 21.12.2013 he has to pay interest at 12% per annum on the balance amount. The plaintiff got issued a legal notice on 21.08.2014 vide Ex.A.2 expressing his readiness to go ahead with the transaction and calling upon the vendors to execute the sale deed. That means nearly for 8 months after the expiry of 90 days period. The plaintiff vendee did nothing to act in 29

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

furtherance of the agreement. Excepting a bald and vague assertion that he was contacting the vendors but they were dodging nothing more is brought on record to satisfy the court that the plaintiff was at all material times interested. As rightly pointed argued by the learned counsel for the defendant, the plaintiff has not produced any satisfactory evidence to prove his readiness and willingness. As regards ‘willingness’ of the plaintiff to perform his part of the contract, the conduct of the plaintiff warranting the performance has to be looked into. The following conduct of the plaintiff warrants consideration:

a. Plaintiff got issued legal notice nearly after 8 months after the expiry of 90 days period as prescribed in the agreement.

b. Plaintiff has not brought anything on record to prove that he contacted the Defendant No.1 after the expiry of 90 days period and was interested in finalising the deed.

c. There was total inaction of the Plaintiff from 20.12.2013 (expiry of one year period) to 21.08.2014 (Date of issuance of legal notice) d. Suit was filed on 26.08.2014 i.e. after a period of 8 months from the date of expiry of agreement period. Said delay has not been sufficiently explained by the Plaintiff.

The continuous readiness and willingness is a condition precedent to grant the relief of specific performance. Hence, it is clearly establishes that plaintiff No.1 has not sufficiently explained and proved that he was always ready and willing to perform his part of the contract. The learned counsel for defendants argued that it is for the plaintiffs to prove their readiness and willingness to perform their obligations under alleged agreement and where the certain amount has been paid in balance and the balance has required to pay within a stipulated time, it is for the plaintiff to show that he was in 30

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

possession to pay the balance amount. On this, he relied on a decision made in a case of U.N.Krishnamurthy (since deceased) thr. Lrs vs A.M.

Krishnamurthy, before the Hon’ble Supreme Court vide judgment dt.

12.07.2022 reported in Civil Appeal No. 4703 OF 2022 [ARISING OUT OF

SLP (C) NO. 19463 of 2018] wherein the Hon’ble Supreme Court had held that:

“It is settled law that for relief of specific performance, the

Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.

47. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiff’s balance sheet that he did not have sufficient funds to discharge his part of contract in

March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiff’s readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth

Dhondiba Chavan (supra) where this Court speaking through

Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and 31

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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willing to perform his part of contract. Deposit in court would not establish Plaintiff’s readiness and willingness within meaning of section 16(c) of Specific Relief Act. The relevant part of the judgment is reproduced below: - “45. Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16(c) of the Specific Relief Act.”

48. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance.

49. The Respondent Plaintiff may have been willing to perform his part of contract. It however appears that he was not ready with funds. He was possibly trying to buy time to discharge his part of contract.

50. In Bhavyanath v. K.V. Balan cited by Mr. Raju to contend that the Respondent Plaintiff was entitled to relief of specific performance and the courts had rightly granted such relief, the

Plaintiff had filed the suit for specific performance three days after the last day for execution of the sale deed. In this case however, the Respondent Plaintiff waited for nearly 3 years and filed the suit for specific performance just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V. Balan (supra) the Plaintiff had adduced cogent evidence to prove his 32

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the

Respondent Plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to enable him to discharge his part of contract. Therefore,

Bhavyanath v. K.V. Balan (supra) is of no assistance to the

Respondent Plaintiff.

51. In view of foregoing, this Court is of the considered opinion that the Respondent Plaintiff was not entitled to the relief of specific performance. The Trial Court and the High Court erred both in law and on facts in granting such relief.

It is also pertinent to note here that the plaintiff though filed the present suit within a span of one year from the date of execution of Ex.A.1 agreement to sell, did not choose to request the defendant No.1 in writing either by way of issuing a letter or notice or legal notice to the defendant calling upon him to perform his part of contract, as the plaintiff is ready with balance of consideration of Rs.26,63,000/- with him as agreed in Ex.A.1 agreement to sell dt. 21.09.2013. The pleadings and evidence put-forth by the plaintiff clearly establishes that the plaintiff did not perform his part of contract as per the terms and conditions agreed upon by him under Ex.A.1 agreement to sell dt. 21.09.2013. It is also pertinent to note here that the plaintiff No.1 not even filed any document to show that he is ready with cash of

Rs.26,63,000/- with him as on the date of filing of the present suit as required in terms of agreement to sell dt. 21.09.2013. It is a settled principle of Law as held by the Hon’ble Apex Court in a decision made in a case of

Kamal Kumar Vs. Premlata Joshi and others [2019 (1) ALT 30 (SC)]

where the Hon’ble Apex Court had held that it is a settled principle of Law 33

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

that the grant of relief of specific performance is a discretionary and equitable relief and the plaintiff must fulfill material questions as held by the

Hon’ble Apex Court as under :

“10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief.

The material questions, which are required to be gone into for grant of the relief of specific performance, are first, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.”

When there is a specific clause in the agreement of sale Ex.A.1 that if the plaintiff failed to perform his part of contract, then he is not entitled for specific performance of contract in his favour. The Hon’ble Apex Court in a case of Bal Krishna and another Vs. Bhagwan Das (Dead) & others [2008 Supreme (SC) 522], regarding readiness and willingness of the plaintiff, had held as under :

34

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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“8. ……….. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaintiff. The plaintiffs readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the Court. It is also settled by various decisions of this

Court that by virtue of section 20 of the Act, the relief for specific performance lies in the discretion of the Court and the Court is not bound to grant such relief merely because it is lawful to do so. …………. In other words, the courts discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void.

17. We have already recorded a finding that the document

Ex.P1 dated 19.7.1952 was not executed by the defendant in favour of the plaintiffs. The document Ex.P1 dated 21.7.1952, which has been executed after the sale deed

dated 19.7.1952, was executed by the defendant for

reconveying the property in favour of the plaintiffs. That document indicates that the consideration for the reconveyance would be Rs.25,000/-. The plaintiffs case throughout in the plaint as well as in the evidence was that they were and are ready and willing to purchase the suit house for the consideration of Rs.10,000/-. In the absence of pleadings or proof by the plaintiffs as to their willingness and readiness to perform their part of the contract and get the sale deed executed in their favour on payment of Rs.25,000/- 35

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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, no case is made out by the plaintiffs for specific performance of the contract of reconveyance.”

In another case of Vijay Kumar and others Vs. Om Prakash [2019(1)

ALD 67 (SC)] the Hon’ble Apex Court had held as under :

“7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff. In the case in hand, though the respondent/plaintiff has filed the suit for specific performance on 29 th April, 2008, the respondent/plaintiff has not shown his capacity to pay the balance sale consideration of

Rs.22,00,000/- . In his evidence, the respondent/plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the trial Court, the respondent/plaintiff could not produce any document to show that he had the amount of Rs.22,00,000/- with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Furthermore, as rightly pointed out by the trial Court, the respondent/plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the trial

Court that the respondent/plaintiff has not been able to prove his readiness and willingness on his part.

36

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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8. The relief for specific performance is purely discretionary.

Though the respondent/plaintiff has alleged that he was ready and willing to perform his part of the contract, the first appellate Court ought to have examined first whether the respondent/plaintiff was able to show his capacity to pay the balance money. In our considered view, the first appellant

Court as well as the High Court has not properly appreciated the evidence and the conduct of the parties. The first appellant Court as well as the High Court, in our view, was not right in reversing the judgment of the trial Court and the impugned order cannot be sustained and liable to be set aside.”

Furthermore, the plaintiff No.1has to prove his readiness and willingness to pay the balance of consideration and he has to prove that he is having capacity (readiness) from the date of agreement till the date of decree. The conduct of the plaintiff in the suit about non issuance of legal notice and non production of his bank account statement etc., to show that he is having ready cash with him to pay the balance sale consideration of Rs.26,63,000/- from the date of execution of agreement to sell till the date of filing of the suit and thereafter also. It itself disentitles him from seeking any relief of specific performance. Mere fact that there is an agreement to sell will not entitle him to seek a decree. His conduct is an important factor for granting or refusing the discretional remedy of specific performance. In the present case, the plaintiff agreed to purchase the property for a total balance consideration of Rs.47,85,000/- and he paid Rs.21,22,000/- as advance and still he has to pay a huge amount of Rs.26,63,000/- to the defendant. Even though there is a recital in Ex.A.1 that if the defendant failed to perform his part of contract on or before 90 days i.e., 20.12.2013 from the next day onwards i.e., from 21.12.2013 he has to pay interest at 12% per annum on 37

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

the lance amount. But no wherein the suit it was elicited that the plaintiff paid any interest after completion of 90 days. The plaintiff did not show his readiness by way of proving his necessary financial capacity i.e. he is having Rs.26,63,000/- with him as on the date of filing of the suit and till date. It is a fact that the defendant No.1 though made his appearance by way of filing vakalat and written statement and but not choose to cross- examine the witnesses examined on behalf of plaintiff, it cannot be a ground to draw adverse inference. Mere expressing readiness would itself is not sufficient to fulfill the contract and the plaintiff has to establish that he is ready with balance sale consideration amount, to pay the same to defendant and to get execute a regular sale deed in his favour. In the absence of the same, it cannot be said that it is the defendant No.1 who breached the contract. From the pleadings and the evidence put-forth by the plaintiff, it clearly shows that the plaintiff himself breached the contract under Ex.A.1 and therefore, he is not entitled for specific performance of

Ex.A.1 in his favour and against the defendant. Therefore, in view of the detailed discussion coupled with the reasons stated supra, basing on the pleadings and evidence put-forth by the plaintiff, it cannot be said that the plaintiff No.1 is ready and willing to perform his part of contract and that the defendant failed to perform his part of contract as per the terms of agreement to sell dt.21.09.8/Ex.A.1. In other words, it follows that the plaintiff failed to prove his case and therefore, the plaintiff is not entitled for specific performance of agreement to sell dt.21.09.2013/Ex.A.1 in his favour and against the defendant. Points 1 to 3 and 5 are answered accordingly.

15. Point No.4 and 6:

(j) Now it is to determine whether the defendant Nos. 2 and 3 are the alleged bonafide purchasers of defendant No.1 or not? To prove the defendant Nos. 2 and 3 a bonafide purchasers under an agreement of sale 38

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

cum GPA, the defendants need to demonstrate that they acted in good faith, paid the agreed price, and had no prior knowledge of any adverse claims or encumbrances on the property. In order to their contention that they are the bonafide purchasers, the defendant No.2 himself examined as

DW.1. DW.1 in his evidence he stated that the defendant Nos. 2 and 3 are the G.P.A Holders of the 1st defendant and later they have put in possession and enjoyment of the plaint schedule property. They purchased the plaint schedule property under agreement of sale-cum-G.P.A and they are bonafide purchasers for a valuable consideration. The alleged paper publication is not known to them. They are the bonafide purchasers without any notice for a valuable consideration. Basing on the GPA issued by 1st defendant in favour of defendant Nos.2 and 3, dt 10.9.2014, the 2nd defendant has executed sale deed in favour of Tirumala Gudimella Pushpa on 31.12.2014 vide doc. No.9427/2014 under Ex.X1 for a valuable consideration of Rs.17,20,000/- and so far as 3rd defendant is concerned, he too executed sale deed in favour of the Tirumala Gudimella Srinivas on 31.8.2014 in respect of the plaint schedule property for a valuable consideration of Rs.16,00,000/- vide doc.No.9408/2014 under Ex.X.2, therefore both the defendants are already sold the property to one

Gudumella Srinivas, in turn the said Gudimella Srinivas sold the plaint schedule property to one Keerthi Srinivasa Solutions Pvt. Ltd., rep. by

Managing Director Kota Sri Ranga Satya Balaji for a valuable consideration of Rs.74,70,000/- on 21.10.2021 vide doc.No.8901/2021 and that right now the property stands in the name of Keerthi Srinivasa Solutions Pvt. Ltd. So, basing on the said sale deed, the said Keerthi Srinivasa Solutions Pvt. Ltd., applied for permission for conversion of the land from wet land into non- agricultural purpose, accordingly the RDO accorded sanction in proceedings No.RCF577/2022, dt.26.4.2022. Therefore at present the schedule property stands in the name of Keerthi Srinivasa Solutions Private

Limited. In the cross examination he deposed that he purchased the 39

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

property from defendant No.1 under Ex.A.6 document and defendant No.1 put his signature on Ex.A.1. The learned counsel for plaintiffs mainly submitted that the Subsequent Buyers were not bonafide purchasers without notice because they did not make sufficient enquiry with regard to the earlier transactions which had been entered into by the defendant No.1 with the plaintiff No.2. He further argued that if they are the Subsequent

Buyers they would have made detailed enquiry with regard to the records of the defendant No.1 but by not doing so, the Subsequent Buyers had shown gross negligence and therefore, it cannot be said that the Subsequent

Buyers were bonafide purchasers without any notice with regard to earlier transactions entered into between the defendant No.1 and the plaintiffs. He further contended that the burden of establishing the bonafides of the

Subsequent Buyers was on them and the said burden had not been discharged by them and therefore, the defendant Nos. 2 and 3 cannot be treated as bonafide purchasers. To substantiate their contention, the defendant Nos. 2 and 3 examined the Sub Registrar, Machilipatnam as

DW.2 and he produced the attested copies of the registered sale deeds vide doc Nos. 9407/2014, 9408/2014, dt. 31.12.2014 and doc. No.

8901/2021, dt. 27.10.2021 which are marked as Ex.X.1 to X3 respectively.

In his evidence, DW.2 deposed that Ex.X.1 dt. 31.12.2014 was executed by

Peddi Subha Anjaneyulu represented by General Power of Attorney Holder

Pamathi Manga Rao in favour of Srimath Tirumala Gudimella Pushpahas and Ex.X.2, dt. 31.12.2014 was executed by Peddi Subha Anjeneyulu, represented by GPA holder Thota Ranga Arjuna Rao in favour of srimath

Tirumala Gudimella Pushpahas and whereas Ex.X.3 dt. 27.10.2021 was executed by Srimath Tirumala Gudimella Pushpahas, in favour of Keethi

Srinivasa Solutions Private Limited. The first and foremost contention of the learned counsel for the plaintiffs is that defendant No.2 who was examined as DW1, admitted to the receipt of total sale consideration under

Agreement of Sale cum GPA document bearing No.9407 of 2014 dated 40

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

31.12.2014 and sold the same to them by defendant No.1, as such, defendant No.2 and 3 are the absolute owners and possessor and bonafide purchasers, thus, the Agreement of Sale - cum - GPA dated 31.12.2014 is valid document. It is further contended that the defendant No.2 and 3 are bonafide purchaser having purchased the properties under Ex.X1 and X.2 by paying considerable value without having any knowledge or notice of such alleged earlier agreement of sale, the defendant No.2 and 3 cannot be put to loss or injury. As seen from Ex.X1 and X2 i.e., sale deeds through which the defendant No.2 and 3 have purchased Ac.4.35 cents

R.S.No.73/1 for a sale consideration of Rs.17,20,000/-. Ex.X2 dated 31.12.2014 is the Agreement of Sale - cum - GPA through which defendant

No.1 authorized defendant No. 3 to alienate the suit schedule property to third parties. DW.1 further deposed in his evidence that he and defendant

No. 3 together sold away the suit Schedule Property to Gudimella

Pushpahasan. The learned counsel for the plaintiff argued that Section 52 of the Transfer of Property Act which lays down the principle of lis pendens that when a suit is pending during the pendency of such suit if a sale is made in favour of other person, then the principle of lis pendens would be attracted. Therefore, the question before us in this case is what is the effect of the lis pendency on the subsequent sale of the same property by the owner to the second purchaser. Section 19 of the Specific Relief Act clearly says subsequent sale can be enforced for good and sufficient reason but in the present case, there is no difficulty because the suit was filed on 26.08.2014 for specific performance of the agreement and the second sale took place on 31.12.2014. Therefore, it is the admitted position that the second sale was definitely after the filing of the suit in question.

Had that not been the position then we would have evaluated the effect of

Section Section 52 of the Transfer of Property Act. But in the present case it is more than apparent that the suit was filed before the sale of the property.

The learned counsel for the plaintiffs contended that the defendant No.1 41

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

did not enter into the witness box to prove his case. In legal terms, when a bonafide purchaser (a buyer who purchases property in good faith, for value, and without notice of any other claims or defects in the title) acquires property from a defendant, the purchaser essentially "steps into the shoes" of the defendant, meaning they inherit the defendant's rights and obligations regarding that property. The onus is on the purchaser to prove that they are a bona fide purchaser, meaning they must demonstrate they acted in good faith, paid value for the property, and had no notice of any prior claims or defects in the title. Regarding the burden of proof, the onus is on the purchaser to prove the good faith who takes the place that he is an innocent purchaser. Moreover, the pleadings as to bonafide purchase is very much necessary. The bonafide purchaser must plead and lead evidence that he is a bonafide purchaser. It is also a well-settled principle of law that not only the original vendor but also a subsequent purchaser would be entitled to raise a contention that the plaintiff was not ready and willing to perform his part of contract. A perusal of both Ex.X.1 and X2 sale deed the consideration has been paid by the defendant Nos. 2 and 3 to the defendant No.1. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers. No evidence was adduced by defendant Nos. 2 and 3 about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of execution of sale deed. Hence, the sale deeds will have to be held as void being executed without consideration. In fact, such a transaction made by defendant Nos. 2 and 3 of selling the suit properties on the basis of the power of attorney of the defendant No.1 is a sham transaction. As referred supra, the plaintiffs failed to establish that they had all along been ready and willing to perform their part of contract. When the plaintiffs themselves breached the contract and did not come forward to pay the balance sale consideration, then the contract which was executed between 42

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

both the parties is not in existence and there is no step on behalf of the plaintiffs within the stipulated period of time. Since, the contract that executed is not existence anymore the defendant Nos. 2 and 3 obviously become bonafide purchasers of the suit Schedule Property. In view of the above facts and circumstances, it establishes that the defendant Nos. 2 and 3 are bonafide purchasers and the defendant No.1 executed the registered sale deed in favour of defendant Nos. 2 and 3 is a valid document.

Accordingly issue Ns. 4 and 6 are answered in favour of defendants.

16. Issue No. 7:

(a) Coming to the alternative relief sought by the plaintiffs to direct the defendant No.1 for refund of the amount together with interest is concerned, the plaintiffs filed the present suit seeking specific performance of agreement of sale dated 21.09.2013 and to direct the defendant No.1 to execute a regular registered sale deed in their favour in the event he failed to do the same, the same may be ordered through Court of law and in alternative if the specific performance of contract i.e. agreement of sale under Ex.A1 is not permissible under law and facts, then in alternative direct the defendant No.1 to refund the advance amount together with interest. It is an undisputed fact that the defendant No.1 executed an agreement of sale dated 21.09.2013 in favour of the plaintiffs agreeing to sell the suit schedule property for total sale consideration of Rs.47,85,000/- and received Rs.21,22,000/- as advance sale consideration from the plaintiffs on the date of agreement itself i.e., 21.09.2013. It is agreed between the parties that the plaintiffs shall pay the balance sale consideration of Rs.26,63,000/- within 90 days i.e., 20.12.2013, if they failed to pay the same on or before 20.12.2013 from the next day onwards i.e., from 21.12.2013 the plaintiffs have to pay interest at 12% per annum on the balance amount. The pleadings and evidence put forth by the 43

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

plaintiffs would clearly shows that, the plaintiffs could not perform their part of contract within stipulated period of time as agreed under Ex.A.1. As per the terms of contract under Ex.A.1, there is no specific clause of either cancellation or forfeit of advance amount paid by the plaintiffs if they or she failed to perform part of contract. The specific clause that was incorporated in Ex.A.1/agreement of sale is that the plaintiffs should pay the balance sale consideration of Rs.26,63,000/- by 20.12.2013, if fails they have to pay interest from 20.12.2013. Therefore, there is no such specific clause with regard to forfeiture of the advance sale consideration that was paid by plaintiffs to the defendant. In the instant case, the plaintiff No.1 proved his case that he and the defendant No.1 entered into an agreement and he paid an amount of Rs.21,22,000/- towards advance sale consideration of the agreement, but the plaintiff failed to prove his readiness and willingness in performing the contract. Therefore, the plaintiffs are not entitled for relief of specific performance of contract in their favour and against the defendants. In a breach of contract, the general rule is that the advance deposited being part of the purchase price cannot be recovered alone. But it will have to be set of costs of any damages awarded to the innocent party.

In such case, the forfeiture clause will be treated as equivalent to penalty clause. In the case of earnest money, forfeiture alone is sustainable and it is not treated as penalty. But it will be treated as penalty when the payment is made in addition to forfeiture of earnest money. As per Section 22 of

Specific Relief Act when a breach of contract occurs, a person who comes for specific performance can ask for refund of earnest money or advance deposited. In case of forfeiture of earnest money, it is necessary to have a specific clause in the contract. A right to forfeiture is contractual right. A forfeiture clause is a penal in character and therefore the contracting parties must agree to stipulate terms in record to forfeiture in the contract itself. In the instant case, the terms mentioned in Ex.A.1 agreement of sale would not show that the plaintiffs and defendant agreed that in case of failure of 44

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

payment of balance of sale consideration of Rs.26,63,000/- within stipulated period of time, i.e. 20.12.2013, the advance amount shall be forfeited. In the present case, there is no such forfeiture clause in Ex.A.1 agreement of sale to forego the advance amount of Rs.26,63,000/- that was paid by the plaintiffs to the defendant. As held supra, in the present case, the plaintiff himself breached the agreement of sale under Ex.A.1. It is true that in a breach of contract the buyer has right to cancel the contract and to obtain the advance amount along with interest and compensation for any loss sustained. Similarly, if a buyer violates the terms of the contract or he has not complied his part of performance within the stipulated time framed, the seller has right to forfeit the advance or earnest money as terms of contract stipulate. The Hon’ble Supreme Court in a case of Kamal Kumar Vs.

Premlata Joshi and others reported in [2019 (1) ALT 30 (SC)] reaffirmed the following ingredients which must be present in the contract so as to enable the seller to forfeit earnest money.

(1) Whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; (2) Whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; (3) Whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; (4) Whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what 45

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

manner and the extent if such relief is eventually granted to the plaintiff; (5) Whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc.

and, if so, on what grounds.”

In the present case, admittedly, the amount of Rs.21,22,000/- was given by the plaintiffs to the defendant No.1 at the moment of execution of contract agreeing to pay the balance sale consideration within 90 days i.e., by 20.12.2013 and there is a clause what to do if the plaintiffs failed to come forward with the balance sale consideration as agreed under Ex.A.1.

However, the agreement itself is silent with regard to forfeiture of earnest money or with regard to damages or compensation or penalty etc hence, the defendant is entitle to return of the advance money i.e., earnest money.

Therefore, the defendant is entitled to return the advance amount of

Rs.21,22,000/- admittedly paid by the plaintiffs to him. Therefore, under these facts and circumstances, the plaintiffs are entitle for refund of

Rs.21,22,000/- from the defendant No.1.

(b) Coming to the aspect of interest on the refundable amount of

Rs.21,22,000/-, it is the plaintiffs who breached the contract and there is no fault on the part of defendant No.1 in not fulfilling the contract. As seen from the evidence of the defendants, the defendant No.1 even did not issue any legal notice prior to Ex.A.2 calling upon the plaintiffs to know their ready and willingness in executing regular registered sale deed by paying balance sale consideration. Therefore, under these facts and circumstances and discussion made supra, the plaintiffs are entitled for interest on the refundable amount. Hence, in view of the observations and findings made supra, the plaintiffs are entitled for refund of the amount of Rs.21,22,000/- that was paid by them to the defendant No.1 as advance amount with any 46

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

interest on it. Point No.7 is answered accordingly in favour of plaintiffs and against the defendant.

17. ISSUE No.8:-

IN THE RESULT, the Suit in O.S.41/2014 is disposed of directing the 1st defendant to refund the advance amount of Rs.21,22,000/- (Rupees twenty one lakhs twenty two thousand only) that was paid by the 1st plaintiff to him at the time of agreement of sale, dated 21.09.2013 along with subsequent interest at the rate of 6% per annum from the date of this judgment to till the date of realization within 3 (three) months from the date of this Judgment. The relief of Specific Performance of Agreement of Sale, dt.21.09.2013 is hereby rejected. Both parties do bear their own costs.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open Court on this the 21st day of March, 2025.

Principal District Judge,

Krishna, Machilipatnam.

Appendix of evidence

Witnesses examined

For Plaintiffs: For Defendants:

P.W.1: Aggala Durga Prasad D.W.1: Thota Ranga Arjuna Rao

P.W.2: Kommuri Rama Koteswara Rao DW.2: K.Jagan Mohan Rao, Sub Registrar, Machilipatnam.

Documents Marked

For Plaintiffs:

Ex.A.1: Agreement of sale,

Ex.A2 : Office copy of legal notice got issued to defendant No.1 on 21.08.2014,

Ex.A.3 : Postal receipt, dt. 21.08.2014, 47

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Ex.A.4 : Refused legal notice of defendant No.1, dt. 22.08.2024,

Ex.A.5 : Registered GPA in favour of defendant No.2, dt. 10.09.2014,

Ex.A6 : Registered GPA in favour of defendant No.2, dt.10.09.2014,

For defendants:

Ex.X.1 : Attested copy of registered sale deed vide doc. No. 9407/2014,

dt. 31.12.2014 of SRO, Machilipatnam,

Ex.X.2 : Attested copy of registered sale deed, vide Doc. No. 9408/2014,

dt. 31.12.2014 of SRO, Machilipatnam

Ex.X3 : Attested copy of registered sale deed, vide Doc. No.8901/2021,

dt. 31.12.2014 of SRO, Machilipatnam

Principal District Judge,

Krishna, Machilipatnam.

1

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE,

KRISHNA AT MACHILIPATNAM

Present: - Smt. Aruna Sarika,

Principal District Judge,

Krishna at Machilipatnam

Friday, this the 21st day of March, 2025

Original Suit No.41 of 2014

Between:

1. Aggala Durga Prasad (died)

2. Aggala Sravanthi, W/o. Late Durga Prasad, Hindu, age 45 years, House wife, R/o. Gollapudi, Vijayawada.

3. Aggala Sai Siddhardha, S/o. Late Durga Prasad, Hindu, age 16 years, student, R/o. Gollapudi, Vijayawada.

4. Aggala Sai Manideep, S/o. Late Durga Prasad, Hindu, age 12 years, student, R/o. Gollapudi, Vijayawada. (Plaintiff No. 4 being minor represented by his mother/natural guardian, Plaintiff No.2 Aggala Sravanthi) (Plaintiff Nos. 2 to 4 are added as LRs of the deceased 1st plaintiff as per orders in I.A.No. 63/2021, dt. 23.02.2023)., … Plaintiffs A n d

1. Peddi Subha Anjaneyulu, S/o Koteswara Rao, Hindu, age 35 years, properties, resident of D.No. 19/96-5, Chilakalapudi, Machilipatnam.

2. Pamarthi Manga Rao, S/o Durgaiah, Hindu, age 71 years, business, R/o D.No. 17/96C, Edepalli, Machilipatnam.

3. Thota Ranga Arjuna Rao, S/o Veera Swamy Hindu, age 27 years, business, R/o. Edepalli, Machilipatnam. (Defendants 2 and 3 are added as per orders in IA.188/2014 dt.30.6.2015) … Defendants

This suit is coming before me on 07.03.2015 for final hearing in the presence of Sri. P.Madhusudhana Rao, Advocate for the Plaintiff and of Sri. K.Sai Mohan Rao, Advocate for defendant No.1, Sri. S. Balaji Rao, Advocate for defendant No. 2 and 3 and the matter having stood over for consideration till this day and the Court delivered the following:

J U D G M E N T

This is an Original Suit filed by the plaintiffs against the defendants praying the Court to grant decree of Specific Performance of agreement of 2

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

sale, dt.21.09.2013 by directing the defendants to execute regular

Registered Sale Deed in favour of plaintiff Nos. 2 to 4 in respect of plaint schedule property i.e., a dry land in an extent of Ac.4.35 cents in

R.S.No.73/1 situated at Mekavaripalem, Bandar Mandal, SRO,

Machilipatnam bounded by,

East: Land of Valisetty Narasiimha Rao,

South: Donka,

West: Land of Yarlagadda Neelachalam

North: Meka vari land, in the place of agreement of sale, dt. 21.09.2013 after receiving the balance of sale consideration of Rs.26,63,000/- or alternatively to pass a decree for

Rs.21,22,000/- in favour of the plaintiff Nos. 2 to 4 against the defendants with subsequent interest at 12% per annum from the date of agreement till the date of realiazation and to grant costs. If the defendant No.1 failed to perform his part of contract and the court directly register the schedule property in favour of the plaintiff.

3. The averments of the plaint, in brief, are as follows: - “Originally the schedule property is a dry land in an extent of Ac.4.35 cents in R.S.No.73/1, situated Mekavaripalem, Bandar Mandal and the same was purchased by the defendant No.1 with his self-earnings from one Penumaka Amma Rao, on 10.8.2005 under registered sale deed in doc. No.3315/2005 of

Machilipatnam SRO and since then the defendant No.1 is in possession and enjoyment of the schedule property with absolute right, title possession and enjoyment and interest over the schedule property. The defendant No.1 offered the plaintiff No.1 to sell the plaint schedule property and the plaintiff

No.1 agreed to purchase the same and after negotiations, the rate was fixed at Rs.47,85,000/- (Rupees forty seven lakhs eighty five thousand only) for the total extent of Ac.4.35 cents, i.e. Rs. 11,00,000/- per acre. Accordingly the deceased 1st Plaintiff agreed to purchase the plaint 3

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

schedule property for the said price from the defendant, the terms and conditions are reduced into writing. The deceased 1st plaintiff and the defendant entered into an agreement of sale on 21 9.2013 and the deceased 1st plaintiff paid Rs.21,22,000/- towards advance to the defendant No.1 on the same day and the balance amount of Rs.26,63,000/- has to be paid by the deceased 1st plaintiff within 90 days i.e, 20.12.2013. If the deceased 1st plaintiff failed to pay the balance on or before 90 days i.e., 20.12.2013 from the next day onwards i.e., from 21.12.2013 the deceased 1st plaintiff has to pay interest at 12% p.a on the balance amount and accordingly the defendant No.1 executed non-possessory agreement of sale in favour of the deceased 1st plaintiff on the very day itself i.e. on 21.9.2013 in respect of the plaint schedule property and handed over the

Xerox copy of the title deeds and agreed to hand over the original title deeds at the time of registration. The deceased 1st plaintiff is ready with balance sale consideration of Rs.26,63,000/- even on 21.09.2013, but at the request of the defendant No.1, the said balance amount was kept with the deceased 1st plaintiff, thereby the deceased 1st plaintiff continuously ready with money since the date of non-possessory agreement of sale and ready and willing to perform his part of contract of sale. The deceased 1st plaintiff approached the defendant No.1 several times and requested him to execute regular registered sale deed in his favour after receiving the balance of sale consideration, but the defendant No.1 is postponing to execute registered sale deed in favour of the deceased 1st plaintiff on one pretext or other and that the defendant No.1 failed to perform his part of contract of sale. While the matter stood thus, the deceased 1st plaintiff reliably came to know that the defendant No.1 with a malafide intention, to cause wrongful loss to the deceased 1st plaintiff, by violating the terms and conditions of the non-possessory agreement of sale executed by him in favour of the deceased 1st plaintiff, the defendant No.1 is trying to alienate the schedule property to third parties and some intending purchasers are 4

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

also coming and making enquiries about the plaint schedule property. The present government declared the Machilipatnam Port due to that reason, the land values in and around Machilipatnam were abnormally increased, thereby with an evil intention to get more money for the plaint schedule property, the defendant No.1 is trying to alienate the plaint schedule property to third parties. The deceased 1st plaintiff also made oral demands and as well as through elders to execute registered sale deed in his favour, but the defendant No.1 is trying to alienate the plaint schedule property to some others with an intention to cause wrongful loss to the deceased 1st plaintiff and to get wrongful gain for himself. The deceased 1st plaintiff after came to know the said fact, got issued a registered legal notice on 21.8.2014 through his Advocate, demanding the defendant No.1 to come and execute regular registered sale deed in his favour. The defendant No.1 refused the said notice on 22.08.2014, neither gave reply nor came forward to execute registered sale deed in favour of the deceased 1st plaintiff.

Therefore, the deceased 1st plaintiff has no other go except to file suit for specific performance of contract of sale in his favour and against the defendant No.1. After filing of the suit and after Court was pleased to order urgent notice on 2.9.2014, the 1st defendant with a malafide intention to defeat and deprive his rights in the plaint schedule property, executed two registered GPAs on 10.9.2014 i.e., one in favour of the 2nd defendant vide doc.5829/2014 before SRO, and another GPA in favour of the 3rd defendant vide doc. No.5828/-2014 before SRO, Machilipatnam. Hence the defendant Nos. 2 and 3 are added as proper and necessary parties. During pendency of the above suit, the 1st plaintiff has got issued public notice which is published in Eenadu Daily News paper in Krishna District Edition on 7 10.2014 (amended as per IA. 188/2014, dt.30.6.2015). The 1st plaintiff died 29.4.2021, leaving behind his wife and two sons as his LRs and that they were added as plaintiff Nos 2 to 4 in the suit”.

5

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

4. The defendant No.1 filed written statement, the averments made therein, in brief, are as follows: “The defendant No.1 denied all the allegations of the plaintiff mentioned in the plaint. He contended that he never offered to sell the plaint schedule property to the plaintiff No.1 and the plaintiff No.1 never paid any amount to him as advance. The so called agreement of sale is a rank forgery and he never executed any agreement of sale in favour of the plaintiff No.1 and the plaintiff No.1 never offered the balance of consideration of Rs.26,63,000/-. When the agreement of sale itself is a rank forged one, the question of paying balance of consideration does not arise and the plaintiff created a story for the purpose of this suit and there are no bonafidies on the part of the plaintiff No.1. The plaintiff

No.1 has no capacity to pay an amount of Rs.21,22,000/- and he is working as a clerk under one K.Bala Koteswara Rao, as such the plaintiff No.1 has no capacity to pay such huge amount. He admitted that, while the matter stood thus, the plaintiff No.1 reliably came to know that the defendant No.1 with a malafide intention to cause wrongful loss to the plaintiff No.1 by violating the terms and conditions of the non possessory agreement of sale executed in favour of the plaintiff No.1, the defendant No.1 is trying to alienate the schedule property to third parties and some intending purchasers are also coming and making enquiries about the plaint schedule property, the present government declared Machilipatnam Port, due to that reason, the land values in and around Machilipatnam are abnormally increased, thereby the plaintiff No.1 with an evil intention to get more money for the plaint schedule property. The defendant No.1 is trying to alienate the plaint schedule property to third parties, that the plaintiff No.1 made several oral demands as well as through the elders to execute registered sale deed in favour of the plaintiff No.1 but the defendant No.1 with an intention to cause wrongful loss to the plaintiff No.1 and to get wrongful gain. The defendant No.1 is the absolute owner of the schedule property and he executed a registered sale deed in favour of Thota Arjuna 6

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Rao and Pamarthi Manga Rao for a valuable consideration of

Rs.10,00,000/- per acre. Since, then the said Manga Rao and Arjuna Rao have been in possession and enjoyment of the schedule property. The

Plaintiff had failed to prove about his ready and willingness to pay the balance of sale consideration Rs.26,63,000/- in order to show his bonafidies and the plaintiff No.1 failed to submit any documentary proof to show that he is having Rs.26,63,000/- to perform his part of contract of sale and there are no bonafidies for the plaintiff No.1 for his readiness and willingness to perform the contract of sale. The plaintiff No.1 is liable for prosecution for creating a forged and fabricated document. There is no cause of action for the plaintiff No.1 to file this plaint. Hence, prays to dismiss the suit with costs.”

5. The defendant Nos.2 and 3 filed their written statement, the averments made therein, in brief, are as follows: “The material allegation of the plaint that the plaint schedule property is dry land in an extent of Ac.4- 35cts situated in Mekavanipalem village is true and correct. The other allegation that the property was purchased by the 1st defendant from his vendor is also correct and that the 1st defendant is in possession and enjoyment of the property is also correct. They denied the allegations of the plaint that the 1st defendant offered to sell the plaint schedule property to the plaintiff No.1 and he agreed to purchase the same for Rs.47,00,000/- @

Rs.11,00,000/-per acre and that the plaintiff No.1 paid an amount of Rs.21,22,000/-to the 1st defendant on the same day etc., as not true and correct. The defendant Nos 2 and 3 are the G.P.A Holders of the 1st defendant and later they have put in possession and enjoyment of the plaint schedule property. They purchased the plaint schedule property under agreement of sale-cum-G.P.A and they are bonafide purchasers for a valuable consideration. The alleged paper publication is not known to them.

They are the bonafide purchasers without any notice for a valuable 7

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

consideration. They strongly suspect that the suit agreement must have been brought into existence by forging the signature of the landlord. Basing on the GPA issued by 1st defendant in favour of defendant Nos.2 and 3, dt 10.9.2014, the 2nd defendant has executed sale deed in favour of Tirumala

Gudimella Pushpa house on 31.12.2014 vide doc. No.9427/2014 for a valuable consideration of Rs.17,20,000/- and so far as 3rd defendant is concerned, he too executed sale deed in favour of the Tirumala Gudimella

Srinivas on 31.8.2014 in respect of the plaint schedule property for a valuable consideration of Rs.16,00,000/- vide doc.No.9408/2014, therefore both the defendants are already sold the property to one Gudumella

Srinivas, in turn the said Gudimella Srinivas sold the plaint schedule property to one Keerthi Srinivasa Solutions Pvt. Ltd., rep. by Managing

Director Kota Sri Ranga Satya Balaji for a valuable consideration of

Rs.74,70,000/- on 21.10.2021 vide doc.No.8901/2021 and that right now the property stands in the name of Keerthi Srinivasa Solutions Pvt. Ltd. So, basing on the said sale deed, the said Keerthi Srinivasa Solutions Pvt. Ltd., applied for permission for conversion of the land from wet land into non- agricultural purpose, accordingly the RDO accorded sanction in proceedings No.RCF577/2022, dt.26.4.2022. Therefore at present the schedule property stands in the name of Keerthi Srinivasa Solutions Pvt.

Ltd (Amended as per orders in IA.253/2023, dt.20.3.2024. Hence, prays to dismiss the suit with costs”. After adding the defendant Nos. 2 and 3, the defendant No.1 filed additional written statement contending that the plaintiffs themselves have to prove all the averments mentioned in the plaint, excepting those that are specifically admitted herein. The defendant

No.1 craves to leave the contents of main written statement in the suit to read as part and parcel of the additional written statement. There is no cause of action of the plaintiff to file the suit and the one mentioned is not true and correct. Hence, prays to dismiss the suit.

8

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

6. Taking into consideration of the above pleadings, the following issues framed for trial :

1. Whether the agreement of sale dt. 21.09.2013 is true, valid and binding on the defendant No.1?

2. Whether the agreement of sale is a forged one?

3. Whether the plaintiff No.1 is ready and willing to perform his part of contract?

4. Whether the registered sale deed executed by 1st defendant in favour of defendant Nos. 2 and 3 is valid and binding?

5. Whether the defendant Nos. 2 and 3 are bonafide purchasers under agreement of sale-cum-G.P.A holders?

6. Whether the plaintiff is entitled for returned of earnest money of Rs.21,22,000/- with interest from 1st defendant ?

7. To what relief ?

7. To substantiate his case, the plaintiff No.1 got examined himself as

PW.1, got marked Ex.A.1 to A6 on his behalf. The plaintiff No.1 also examined one Kommuri Rama Koteswara Rao Naidu, S/o. Koteswara Rao as PW.2 on his behalf. The defendants examined defendant No.3 as DW.1 and he got examined K.Jagan Mohan Rao, S/o. Venkateswar Rao, Sub

Registrar, Machilipatnam as DW.2 and got marked Ex.X.1 to X3 on their behalf.

8. I have heard the submissions of the learned counsel for plaintiffs and defendants. I have perused the material on record including the pleadings, evidence adduced on behalf of the plaintiff and defendants i.e. oral and documentary.

9. The learned counsel for the plaintiffs argued that the defendant No.1 agreed to sell the plaint schedule property to the plaintiff No.1 for 9

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Rs.47,85,000/- and they both entered into an agreement of sale on 21.09.2013 and the plaintiff No.1 paid an amount of Rs.21,22,000/- towards advance on the same day and the balance amount of

Rs.26,63,000/- has to be paid by the plaintiff No.1 within 90 days i.e., 20.12.2013 and if the plaintiff No.1 fails to pay the balance on or before 90 days from the next day onwards i.e., from 21.12.2013 the plaintiff No.1 has to pay interest at 12% per annum on the balance amount. He further argued that the plaintiff No.1 approached the defendant No.1 several times and requested to execute regular registered sale deed in his favour after receiving the balance ale consideration, but the defendant No.1 postponing the same on one pretext or other and evading to execute a registered sale deed in favour of the plaintiff with dishonest and fraudulent intention of cheating the plaintiff No.1 and there is clause mentioned in the agreement of sale, dt.21.09.2013 that the agreement will be forfeited if the plaintiff fails to pay the balance on or before 90 days i.e., 20.12.2013 from the next day onwards i.e., from 21.12.2013 the plaintiff No.1 has to pay the interest at 12% on the balance amount. The plaintiff is ready and willing to perform his part of contract. The plaintiff got issued registered notice on 21.08.2014 through his advocate demanding the defendant No.1 to execute the sale deed in his favour, but the defendant No.1 did not choose to register the sale deed in favour of the plaintiff. Hence, plaintiff is obliged to file the suit for specific performance of contract dt.21.09.2013. He further argued that after filing the suit the defendant No.1 with a malafide intention executed two registered GPS on 10.09.2014 one in favour of defendant No.2 and 3 respectively and that the plaintiff got issued public notice which is published in Eenadu Daily News paper in Krishna District on 07.10.2014 and on 29.04.2021 and later the plaintiff No.1 died on 29.04.2021 leaving behind his wife and two sons as his LRs and that they were added as plaintiff Nos.

2 to 4 in the suit. He further argued that the defendant No.1 gave GPA to defendant Nos. 2 and 3 and the property sold to them was marked as 10

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Ex.X.1 and Ex.X.2. He further argued that the defendant No.1 did not turn up to give evidence before the court and he was not examined by other defendants also. He further argued that it is the duty of the defendant No.1 to prove Ex.A.1 is forged document. He further argued that the plaintiff

No.1 proved Ex.A.1 by examining himself and by examining the attestor of

Ex.A.1 agreement of sale. Hence, adverse inference can be drawn against the defendant No.1 He further argued that after receiving the notice under

Ex.A.2 the defendant No.1 sold the property to defendant Nos. 2 and 3, under these circumstances the said sale is not genuine and it shows the conduct of the defendant No.1. He further argued that the plaintiff No.1 is always ready and willing to perform his part of contract, but the defendant with an intention of cheating postponed the same on pretext or other. He further argued that Ex.X1 and X2 are collusive documents and the defendant Nos. 2 and 3 are not bonafide purchasers. In the cross examination of DW.1, he categorically admitted that as Port is going to establish due to which the land values of the sites are going hike. He further argued that defendant No.1 did not enter into the witness box and further the defendant Nos. 2 and 3 are not concerned to the readiness and willingness, it is their only concerned if they are Bonafide purchasers or not? Finally he rests his arguments praying to decree the suit.

10. Per contra, the learned counsel for the defendant Nos. 1 to 3 argued that at first the suit was filed against defendant No.1 only and later known that defendant No.1 executed sale deeds in favour of defendant Nos. 2 and 3 and that they both are added as defendant Nos. 1 and 3 respectively.

Defendant Nos. 2 and 3 also alienated the suit properties to the third parties. He further argued the defendant Nos. 2 and 3 never made attempt to brought the 3rd party whom they sold the property on record. Title is transferred in the name of 3rd parties. He further argued that the plaintiff has to take steps to bring them on record. He further argued that after 11 11

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

months he issued notice to the defendant No.1 and later he filed suit on 26.08.2014 and the plaintiff has not waited for time given in notice/Ex.A.3.

by the time of filing the suit notice was not received by defendant No.1. He further argued that notice is mandatory. He further argued that the plaintiff did not prove his readiness and willingness, he kept quiet for 11 months from the date of Ex.A.1, it is the duty of the plaintiff No.1 to prove that he had sufficient amount to fulfill the agreement. Hence, prays to dismiss the suit”.

11. Before pleadings and evidence are analyzed issue wise and are examined in juxta position, it is necessary to refer the details of the documentary evidence which is as follows: - “Ex.A.1 is the agreement of sale, Ex.A2 is the office copy of legal notice got issued to defendant Nos.1 on 21.08.2014, Ex.A.3 is the postal receipt, dt. 21.08.2014, Ex.A.4 is the refused legal notice of defendant No.1, dt. 22.08.2024, Ex.A.5 is the registered GPA in favour of defendant No.2, dt. 10.09.2014, Ex.A6 is the registered GPA in favour of defendant No.2, dt.10.09.2014, Ex.X.1 is the attested copy of registered sale deed vide doc. No. 9407/2014, dt.

31.12.2014 of SRO, Machilipatnam, Ex.X.2 is the attested copy of registered sale deed, vide Doc. No. 9408/2014, dt. 31.12.2014 of SRO,

Machilipatnam and Ex.X3 is the attested copy of registered sale deed, vide

Doc. No.8901/2021, dt. 31.12.2014 of SRO, Machilipatnam

12. Before taking up of the points for determination, it is necessary to mention that the pleadings of plaintiff were already extracted supra in detail.

I have gone through the pleadings, oral and documentary evidence.

13. From the analysis of the pleadings, it is the plaintiffs who have to prove that the Non-Possessory Agreement of Sale, dt.23.11.2006 is still in force as on the date of filing of the suit and that they are always ready and 12

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

willing to perform their part of contract by way of expressing to pay the balance sale consideration of Rs.10,00,000/- to the defendant. The plaintiffs have also to prove that time is not essence of contract and that performance of their part of contract would arise only after the defendant get the suit schedule property surveyed and fix boundaries to it. The burden of proof and initial onus lies on the plaintiffs to establish the above referred issues. As per the provisions of Section 20 of Specific Relief Act, 1963 the plaintiffs have to prove that they are ready and willing to perform their part of contract. The impugned Non-Possessory Agreement of Sale Deed, dt.23.11.2006 which is marked as Ex.A.1, would show that the plaintiffs entered into the said agreement of sale with the defendant No.1 with an intention to purchase the suit schedule property from the defendant No.1 as if they accepted that the defendant is the absolute owner of the suit schedule property. The Agreement of Sale, dt.21.09.2013 would also show that both plaintiff No.1 and defendant No.1 entered into an agreement.

14. POINT NOS.1, 2, 3 and 5 :

a) The plaintiff No.1 filed suit seeking specific performance of agreement to sell dt.21.09.2013 said to be executed by defendant No.1 in his favour.

b) To substantiate his claim, the plaintiff No.1 himself was examined as

PW.1 and Ex.A.1 to A6 were marked on his behalf. The plaintiff got examined one Kommuri Rama Koteswara Rao Naidu, S/o. Koteswara Rao

Dasari Baba Kamali Naga Malleswara Rao, S/o. Late Panduranga

Brahmarao as PW.2. Since the present suit is filed seeking specific performance of agreement to sell involving immovable property, it is necessary to refer the documentary evidence marked on behalf the plaintiff

before scrutinizing the evidence of plaintiff i.e. PW.1 and PW.2 on his

behalf. Ex.A.1 is the agreement of sale. A perusal of Ex.A.1 it would show 13

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

that the on 21.09.2013 the plaintiff No.1 agreed to purchase the Plaint

Schedule Property from the defendant No.1 in an extent of Ac.4.35 cents in total Rs.47,85,000/- and the plaintiff paid an amount of Rs.21,22,000/- to the defendant No.1 on the same day in the presence of attestors and scribe. The recitals further shows within 90 days the plaintiff No.1 has to pay the balance amount i.e, on 20.12.2013 and if he fails to pay the balance on or before 20.12.2013, from the next day onwards i.e, from 21.12.2013 he has to pay interest at 12% per annum on the balance amount. Ex.A2 is the office copy of legal notice got issued to defendant

Nos.1 on 21.08.2014, Ex.A.3 is the postal receipt, dt. 21.08.2014, Ex.A.4 is the refused legal notice of defendant No.1, dt. 22.08.2024, Ex.A.5 is the registered GPA in favour of defendant No.2, dt. 10.09.2014, Ex.A6 is the registered GPA in favour of defendant No.2, dt.10.09.2014, Ex.X.1 is the attested copy of registered sale deed vide doc. No. 9407/2014, dt.

31.12.2014 of SRO, Machilipatnam. A perusal of Ex.X.1 would show that it was it was executed on 31.12.2014 by Peddi Subha Anjaneyulu represented by General Power of Attorney Holder Pamathi Manga Rao in favour of Srimath Tirumala Gudimella Pushpahas. Ex.X.2 is the attested copy of registered sale deed, vide Doc. No. 9408/2014, dt. 31.12.2014 of

SRO, Machilipatnam. A perusal of Ex.X.2, dt. 31.12.2014 would show that it was executed by Peddi Subha Anjeneyulu, represented by GPA holder

Thota Ranga Arjuna Rao in favour of srimath Tirumala Gudimella

Pushpahas and Ex.X3 is the attested copy of registered sale deed, vide

Doc. No.8901/2021, dt. 31.12.2014 of SRO, Machilipatnam. A perusal of

Ex.X.3 would show that it was executed on 27.10.2021 by Srimath

Tirumala Gudimella Pushpahas, in favour of Keethi Srinivasa Solutions

Private Limited.

c) Coming to the evidence adduced by the plaintiff, as referred supra, the plaintiff himself was examined as PW.1 and marked Ex.A.1 to A6 on his 14

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

behalf. PW.1 in his chief-examination which was taken in the form of solemn sworn affidavit had reiterated his pleaded case and transcribed the same into direct evidence. In his cross examination made on behalf of defendant No.1, he deposed that he is not an income tax assesse. He had not shown the alleged sale consideration in his income tax returns. He admitted that he has no documentary proof to show that he paid

Rs.21.22.000/- to defendant No.1 as on the date of the alleged Ex.Al either by way of bank statement or any recorded proof. He deposed that he had not file any documentary proof to show he had Rs.26,63,000/ which is the remaining sale consideration to be paid to defendant No.1 to show his readiness and willingness. With regard to the agreement, PW.1 deposed that Hundred Rupee stamp paper on which Ex A.1 was allegedly written was purchased in the name of D.1. He admitted that Ex A.1 stamp was sold to Aggoli Durga Prasad S/o.Apparao, Gollapudi. He admitted that beneath the signatures of the executant/D.1 he has not mentioned the date of

Ex.A.1 document. He admitted that D1 sold away the schedule property to

D3. He admitted that Ex.A.1 was not got registered by him. There is no special reason for non execution of Ex.A.1 He obtained link document of D.I relating to Ex.A.1. The rest of the cross examination is nothing but suggestions to the effect that D.1 never entered in to an agreement of sale with him and never agreed to sell the schedule property to him and that the thumb impressions of D1 were obtained on blank stamp papers and fabricated and created Ex A.1 for wrongful gain and that the suit instituted by him is not maintainable as he had not shown his readiness and willingness to perform his part of contract and that Ex.A.1 is a forged document and that he is deposing false and he is not entitled for any relief and that he had no capacity to pay the amount as alleged in Ex.A.1 and that

D.1 never executed Ex.A.1 and never entered in to any agreement with him and he is deposing false and PW.1 denied the same as not true. In the further cross examination made on behalf of defendant Nos. 2 and 3, the 15

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

plaintiff had categorically admitted that in his chief examination affidavit he had not mentioned about his avocation and occupation. He admitted that he had not filed any proof to show that he got Rs.26,63,000/- with him to perform his part of contract. He deposed that he did not try to get Ex.A.1 registered even though the part of sale consideration was very huge. He admitted that he did not specifically mention the date on which he requested the defendant No.1 to come forward for execution of regular sale deed in pursuance of Ex.A.1. He deposed that on 07-09-2014 he came to know that DI was going to sell the schedule property. Thereafter he got issued a notice under Ex.A.2. He deposed that he did not issued any notice to the S.R.O. Machilipatnam requesting not to entertain any registration vis- a-vis Ex.A.1 schedule property. He admitted that by the date of issuing paper publication the schedule property was sold and registered in favour of

D.2 and D.3. He further admitted that it took eight months time from the date of execution of Ex.A.1 i.e., on 21-09-2013 for issuing a legal notice covered under Ex.A2. There is no reason for waiting for such eight months time to issue notice to D.1. He admitted that he did not mention in his chief affidavit that D2 and D.3 having known about Ex.A.1 in between him and

D1 entered in to sale transaction with D.2 and D.3. The rest of the cross examination is nothing but suggestions to the effect that D2 and D.3 do not have idea about execution of Ex.A.1 in between him and D.1 that he did not have the alleged balance sale consideration with him by the time of issuing

Ex.A2 or any other date subsequent to it and that Ex.A.1 was a false and fabricated document and that falsely obtained the thumb impressions of D.1 on empty stamp papers and that D2 and D.3 are bonafide purchasers of the schedule property and that he failed to prove his readiness and willingness to perform his part of contract and that he did not deposit the balance sale consideration in to the court at the time of institution of the suit and that he is not entitled for any relief let alone the relief of Specific Performance of

Ex.A.1 and PW.1 denied the same as not true.

16

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

d) The plaintiff examined one Kommuri Rama Koteswara Rao Naidu,

S/o. Koteswara Rao as PW.2. PW.2 in his chief examination which was taken in the form of solemn sworn affidavit, in support of the case of the plaintiff, had deposed that he knows the Plaintiff/Aggala Durga Prasad and the Defendant No.1/Peddi Subha Anjaneyulu and others. He was called by the Plaintiff Durga Prasad, stating that he wants to purchase the plaint schedule property and requested to come to him to attest a document. As per the instructions of the Plaintiff and the Defendant, the Scribe, Ede

Amaleswara Rao scribed the Non-possessory Agreement of Sale on 21-09- 2013. As per the Agreement, the total sale consideration is Rs.47,85,000/- for the total extent of Acs.4.35 Cents i.e., Rs.11,00,000/- per Acre. He deposed that on that day, the Plaintiff paid an amount of Rs.21,22,000/-to the 1st defendant towards advance and the balance amount of

Rs.26,63,000/- has to be paid by the Plaintiff to the 1st Defendant within 90 days from the date of Agreement i.e., 20-12-2013; that if the Plaintiff falls to pay the balance amount on or before that date, the Plaintiff has to pay interest at the rate of 12% per annum on the balance amount from the next date of the Agreement i.e., 21-12-2013 itself. After reading over the contents of the document by the Scribe, the 1st defendant Subha

Anjaneyuiu Put thumb Mark on the document, by receiving the amount of

Rs.21,22,000/- from the Plaintiff towards advance. Thereafter, he attested the document as first Attestor. Later, one J.N.S.S. Chaluvathi attested the document as second Attestor. After that, the Scribe Ede Amaleswara Rao signed at scribe at the relevant coloumn. He deposed that the entire transaction of scribing the document, payment of advance amount to the 1st defendant by the plaintiff thumb mark of the defendant No.1 on the document and attestation of the document by him and the second Attestor and signing of the Scribe on the document were done in all their presence on the date of the document i.e., 21-09-2013. As the Plaintiff requested him to give evidence, he giving the evidence. In the cross examination he 17

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

deposed that on earlier occasions he never acted as witness for any document on behalf of plaintiff. He deposed that Ex.A.1 was prepared in the house of Subha Anjaneyulu/D.1. The document writer prepared a rough of

ExA.1 and the rough copy of Ex A.1 was with the document writer. He admitted Ex.A.1 does not reflect about preparation of rough of Ex. A.1. He deposed that he had verified the link document relating to the plaint schedule property Plaintiff purchased stamp papers for preparation of

Ex.A.1 in Sub-Registrar Office. He further deposed that half an hour after preparation of Ex.A.1 by the document writer, he signed as witness on

Ex.A.1. He further deposed that he did not write the date of his signature on

Ex.A.1 beneath his signatures. He has not received summons from the court and he is deposing at the request of plaintiff. The rest of the cross examination is nothing but suggestion to the effect that Ex.A.1 was never prepared in his presence and that he is deposing false at the behest of plaintiff and that the averments of Ex.A.1 are all false and PW.2 denied the same as not true. In the cross examination made on behalf of defendant

Nos. 2 and 3, he deposed that initially the suit was instituted against DI only but after plaintiff came to know about purchase of the property by purchasers from D.1 they were also impleaded as D2 and D3. He knows plaintiff for about ten years. He does not know D2 and D.3 and their details.

The rest of the cross examination is nothing but suggestion to the effect that he never witnessed Ex.A.1 transaction and that he is deposing false at the request of plaintiff as he is his close associate and that with an intention to cause wrongful damage to D.2 and D.3 and they were impleaded as parties and PW.2 denied the same as not true.

(e) The present suit being filed for Specific Performance of contract and on the pleaded facts of both parties, it is just and proper to refer the evidence adduced on behalf of the defendants before scrutinizing the evidence adduced by plaintiffs. As referred supra, the defendant No.2 was 18

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

examined himself as D.W.1. D.W.1 in his chief examination, which was taken in the form of solemn sworn affidavit had reiterated his pleaded case and transcribed the same into direct evidence. DW.1 in his cross examination he deposed that he studied upto 10th Class and working as a private employee. He deposed that defendant No.1 is neither his relative nor his friend. He does not know A. Durga Prasad/PW1 herein and why

PW1 filed the present suit against the defendant No.1. He deposed that he did not go through the documents filed in this suit hence, he does not know the contents of them. He deposed that he purchased the suit schedule property from defendant No.1. The learned counsel for plaintiffs shown

Ex.A6 to the witness and he confronted that he purchased the property under the said document/Ex.A6. Defendant No.1 put his thumb impression on Ex.A6. He deposed that he sold the property covered under Ex.A6 to one Puspha Hass. He knows the contents of Ex.A6. He did not give any amount to Defendant No. 1 after he sold the property covered under Ex.A6.

After deposing so, witness volunteered that he has already given the entire amount to Defendant No.1 while executing Ex.A6 itself. He admitted that the Ex.A6 was executed for G.P.A., but not a sale deed. He does not know whether the present suit was already filed by issuing notice to Defendant

No. 1 prior to the date of execution of Ex.A6 dated 10.09.2014 and that a public notice was issued after the date of execution of Ex.A6. He deposed that he came to know about the present suit only after receiving the summons from this Court. He does not know about Ex.Al/agreement of sale. He does not know about the financial status of Plaintiff No.1 and about his avocation and that Sri Sai Vardhini Promoters and Developers at Chitti

Guduru belong to Plaintiff No. 1 and he also does not know that the plaintiff

No. 1 is running a business under name and style of Port City Real Estate at Machilipatnam. The rest of the cross examination is nothing but suggestions to the effect that the Defendant No.2 and he knows about the issuance of public notice dated 07.10.2014 in Krishna District Edition, 19

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Eenadu Daily News paper and that the Defendant No.1 sold the suit schedule property to the plaintiff No.1 in the year 2013 under Ex.A1 and that he and defendant No. 1 and 2 knowing the same created Ex.A5 and A6 in collusion with each other and that the defendant No.1 to 3 including him created Ex.A5 and A6 though they aware that the Defendant No.1 already sold the property to plaintiff No. 1 and pendency of present suit and that he did not purchase the suit schedule property from Defendant No.1 and that

Ex.A5 and A6 are created and that therefore the Ex.A5 and A6 which are not binding on the plaintiff and that as they are not legally valid documents.

DW1 is recalled as per orders in IA.No. 199/2024 in O.S.No.41/2014 dated.

18.07.2024, present and sworn in for further examination and in the further cross examination he deposed that he and Defendant No.2 together sold away the suit schedule property to Gudimella Pushpahasan. They did not sell the property to Tirumala Gudimella Srinivas. He deposed that he has given evidence before this Court on 06.07.2023. He does not know whether

Gudimella Pushpahasan sold away the property to Keerthi Srinivasa

Solutions Private Limited. He deposed that Balaji purchased the property from Gudimella Pushpahasan and he does not know whether Balaji sold away the property or not. He admitted that all the transactions by Gudimella

Pushpahasan and Balaji are prior to his evidence on 06.07.2023. He knows about all these transactions by the time he gave evidence before this Court on 06.07.2023. He deposed that Defendant No. 1 never disclosed him about when and to whom he sold away the property. The rest of the cross examination is nothing but suggestion to the effect that he knows about

Ex.A.1 suit agreement and the transaction thereon, but intentionally deposing false by creating the documents referred in Ex.A.1 and A6 along with defendant Nos. 1 to 3 and that he is not bonafide purchaser of defendants and that Ex.A.5 and A6 are collusive documents and DW.1 denied the same as not true.

20

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

(f) In order to prove their contention that defendant Nos. 2 and 3 are the bonafide purchases, they examined K.Jagan Mohan Rao, Sub Registrar,

Machilipatnam as DW.2. DW.2 has given evidence on behalf of defendants on receipt of witness summons vide orders dt. 28.11.2024 passed in

I.A.252/2024 in O.S.41/2014. In his chief examination he deposed he has been working as Sub Registrar, Machilipatnam since 04.06.2023. He brought attested copies of registered sale deeds vide Doc. Nos. 9407/2014, 9408/2014, dated 31.12.2014 and registered sale deed vide Doc. No.

8901/2021, dated 27.10.2021 registered in their Sub Registrar's Office at

Machilipatnam. The attested copy of registered sale deed vide Doc. No.

9407/2014, dated 31.12.2014 of SRO Machilipatnam was marked as

Ex.X.1. The attested copy of registered sale deed vide Doc. No. 9408/2014,

dated 31.12.2014 of SRO Machilipatnam was marked as Ex.X.2. The

attested copy of registered sale deed vide Doc. No. 8901/2021, dated 27 10.2021 of SRO Machilipatnam was marked as Ex.X3. He deposed that

Ex.X1 dated 31.12.2014 was executed by Peddi Subha Anjaneyulu represented by General Power of Attorney Holder Pamarthi Manga Rao in favour of Srimath Tirumala Gudimella Pushpahas, S/o Srimath Tirumala

Gudimella Varadacharyulu. Ex.X2 dated 31.12.2014 was executed by

Peddi Subha Anjaneyulu represented by General Power of Attorney Holder

Thota Ranga Arjuna Rao in favour of Srimath Tirumala Gudimella

Pushpahas, S/o Srimath Tirumala Gudimella Varadacharyulu. Ex.X3 dated 27.10.2021 was executed by Srimath Tirumala Gudimella Pushpahas, S/o

Srimath Tirumala Gudimella Varadacharyulu in favour of Keerthi Srinivasa

Solutions Private Limited. In the cross examination he admitted that Ex.X1 and X2 are executed through General Power of Attorney Holder basing on the General Power of Attornies given by Subha Anjaneyulu in favour of

Pamarthi Manga Rao and Thota Ranga Arjuna Rao respectively. He deposed that before registering a document through General Power of

Attorney Holder, they have to verify the live particulars of the executants of 21

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

General Power of Attorney. He deposed that in general practice they are accepting affidavit of the executants of General Power of Attorney or the live particulars given in documents itself will be accepted. He admitted that there is no mention of live particulars of executants of General Power of

Attorney Holder in Ex.X1 and X2 and so also affidavits are not enclosed to

Ex.X1 and X2 showing that executants of General Power of Attorney referred in Ex.X1 and X2 is alive as on the date of execution of Ex.X1 and

X2. He admitted that the property covered under Ex.X1 and X2 falls in

R.S.No. 73/1 of Mekavanipalem village. He admitted that Ex.X3 includes attested copy of notarized affidavit given by Srimath Tirumala Gudimella

Pushpahasan, S/o Varadacharyulu stating that the originals of Ex.X1 and

X2 are lost during transit and a case was lodged with the police under

Section 199, 200 of Indian Penal Code. He further deposed that Ex.X3 also contains attested copy of certificate issued by SHO, Chilakalapudi Police

Station certifying the reasons for missing/lost of originals of Ex.X1 and X2.

He admitted that in the attested copy of notarized affidavit in does not show the Ex.X3 date of missing of originals of Ex.X1 and X2, so also there is no mention in the affidavit that a paper publication was issued about missing of originals referred as falls in R.S.No. 73-1-A of Mekavanipalem village. He further admitted that Survery Certificate is not produced at the time of execution of Ex.X3 to show that R.S.No.73/1 is reallotted with R.S.No.73-1-

A under Sub Division of R. S.No. 73/1 of Mekavanipalem village. The parties to Ex X1 to X3 do not disclose to the Sub Registrar that a general notice was issued in Eenadu Daily News paper that a suit is pending before

Principal District Court, Krishna at Machilipatnam in respect of Schedule

Property referred in Ex.X.1 to X3. He deposed that he cannot say whether

Ex.X.1 to X3 are collusive documents or not. The rest of the cross examination is nothing but suggestions to the effect that they have not gone through the original of Ex .X1 and X2 before registering Ex.X3 and DW.2 denied the same as not true.

22

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

(g) On a combined reading of the testimonies of P.W.1 and P.W.2,

D.W.1 and 2 and the documentary evidence Ex.A.1 to Ex.A.6 and Ex.X.1 to

Ex.X.3 would show that there is no dispute that originally the Schedule

Property is a dry land in an extent of Ac.4.35 cents in RS No. 73/1 situated at Mekavaripalem, Bandar Mandal and the same was purchased by the defendant with his self earnings from one Penumaka Amma Rao on 10.08.2005 under registered sale deed vide doc. No. 3315/2005 of

Machilipatnam SRO and since then the defendant is in possession and enjoyment of the Schedule Property with absolute right, title possession and enjoyment and interest over the Schedule Property. It is the contention of the plaintiff that the defendant No.1 offered to sell the Plaint Schedule

Property to the plaintiff No.1 for a total sale consideration of Rs.47,85,000/- for total extent of Ac.4.35 cents i.e., Rs.11,00,000/- per acre. It is the further contention of the plaintiff that on the date of execution of Ex.A.1, Agreement of Sale the plaintiff No.1 had paid an amount of Rs.21,22,000/- to the defendant No.1 as advance sale consideration. P.W.2 is acted as 2nd attestor i.e., witness to Ex.A.1 Agreement of Sale. P.W.2 on behalf of plaintiff had deposed that he was called by the plaintiff Durga Prasad stating that as per the instructions of the plaintiff and defendants the scribe,

Ede Amaleswara Rao scribed the Non-possessory Agreement of sale on 21.09.2013. As per the Agreement, the total sale consideration is

Rs.47,85,000/-for the total extent of Acs.04-35 Cents i.e., Rs.11,00,000/- per Acre. He deposed that on that day, the Plaintiff paid an amount of Rs.21,22,000/-to the 1st defendant towards advance and the balance amount of Rs.26,63,000/- has to be paid by the Plaintiff to the 1st

Defendant within 90 days from the date of Agreement i.e., 20-12-2013 and further there is a clause that if the Plaintiff falls to pay the balance amount on or before that date, the Plaintiff has to pay interest at the rate of 12% per annum on the balance amount from the next date of the Agreement i.e., 21- 12-2013 itself. After reading over the contents of the document by the 23

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Scribe, the 1st defendant Subha Anjaneyuiu put thumb Mak on the document, by receiving the amount of Rs.21,22,000/- from the Plaintiff towards advance. Thereafter, he attested the document as first Attestor.

Later, one J.N.S.S. Chaluvathi attested the document as second Attestor.

After that, the Scribe Ede Amaleswara Rao signed at Scribe at the relevant coloumn. He deposed that the entire transaction of scribing the document, payment of advance amount to the thumb mark 1st defendant by the

Plaintiff, put of the 1st defendant on the document and attestation of the document by him and the second Attestor and signing of the Scribe on the document were done in all their presence on the date of the document i.e., 21-09-2013. As referred supra, the recitals of Ex.A.1 would show that both plaintiff No.1 and defendant No.2 agreed to perform the remaining part of agreement within 90 days either by way of paying the amount to PW.1, which was received by the defendant from the plaintiff No.1 towards advance sale amount or by any other mode and time fixed for getting registered the regular Sale Deed is 20.01.2007. The plaintiff No.1 herein being vendee shall pay the balance sale consideration of Rs.26,63,000/- to the defendant No.1 and get execute a Registered Sale Deed in his name.

From the above, it clearly shows that both parties had agreed to execute the regular Registered Sale Deed and fixed time for execution of regular

Registered Sale Deed. Therefore, from the recitals of Ex.A.1 it is clear that the parties had fixed time for completion of agreement of sale that was executed under Ex.A.1. In other words, as per the recitals of Ex.A.1, time is essence of contract of Ex.A.1. The evidence of P.W.1 and P.W.2 and the contents of written statement of defendant No.1 would support the recitals made in Ex.A.1. Their testimony clearly shows that the plaintiff No.1 and defendant No.1 fixed the time for performance and completion of contract as within 90 days from the date agreement of sale. As per the recitals of

Ex.A.1, it is the plaintiff No.1 who has to first perform their part of contract by way of showing his readiness with cash of Rs.26,63,000/- to pay the 24

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

same to the defendant No.1 and the same would determine that they are ready with balance sale consideration of Rs. 26,63,000/- as part of performance of contract as per agreed terms and conditions under Ex.A.1.

If the plaintiff No.1 shows his readiness as referred supra, then performance part of defendant No.1 would start.

(h) With this backdrop of factual and proved facts, now it is to determine whether the agreement of sale under Ex.A.1 is valid and binding on the parties. Similarly, it is an established fact that time is essence of contract under Ex.A.1. When that is so, the plaintiffs have to show their readiness and willingness to perform their part of contract within said stipulated period of time. As referred supra, the performance of part of contract by defendants would arise only when the plaintiffs come forward with their readiness to pay the balance sale consideration of Rs.26,63,000/- within stipulated period as agreed under Ex.A.1 Agreement. The plaintiffs in their pleadings stated that the time stipulated in the agreement was 20.12.2013 and that if plaintiff No.1 fails to pay the balance amount on or before that date, the plaintiff No.1 has to pay interest at the rate of 12% per annum on the balance amount from the next date of agreement i..e, 21.12.2013 itself.

PW.1 in his evidence had categorically stated that he had no documentary proof to show that he paid Rs.21,22,0000/- to defendant No.1 as on the date of alleged Ex.A.1 either by way of bank statement or any recorded proof. he also deposed that he had not filed any documentary proof to show that he had Rs. 26,63,000/- which is the remaining sale consideration to be paid to defendant No.1 to show his readiness and willingness and that itself shows that the plaintiffs are not ready to give the balance sale consideration at any point of time and that though time is stipulated in the contract it was never treated as essence of the contract. The above referred evidence of

P.W.1, P.W.2 and so also DW.1 and the very document i.e., Non- possessory Agreement of Sale under Ex.A.1, would clearly establishes that 25

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

time is essence of contract of Ex.A.1. It was specifically mentioned in

Ex.A.1 that by 20.12.2013 i.e., within 90 days from the execution of Ex.A.1 agreement of sale and the plaintiffs should get ready with balance sale consideration of Rs. 26,63,000/- and get registered sale deed from defendant No.1 by paying the said amount to her. The recitals of Ex.A.1 would clearly show that the plaintiff No.1 has to pay the balance sale consideration and get the regular registered sale deed from the defendant

No.1. Therefore, the stand taken by the defendants that though time is stipulated in the said agreement it was never treated as an essence of the contract is against the recitals of the very contract under Ex.A.1. Thus, the testimony of P.W.1 itself clearly establishes that the plaintiff No.1 and defendant No.1 entered into Ex.A.1 Non-Possessory Agreement of Sale by fixing a specific time for its performance and it is valid and binding on the plaintiffs and defendant No.1.

(i) The very contention of the defendant No.1 is that he never executed any agreement of sale in favour of the plaintiff No.1 and plaintiff

No.1 never offered the balance of consideration of Rs.26,63,000/- to the plaintiff. The plaintiff No.1 by examining himself and by examining 2nd attestor to Ex.A.1 and scribe of Ex.A1 as PW.2 could prove that the defendant No. 1 put his signatures on Ex.A.1 and later the PW.2 put his signature as 1st attestor on Ex.A.1. The evidence of PWs.1 and 2 about execution of Ex.A.1 is in corroboration of plaintiff as PW.1 in his evidence has deposed that Ex.A.1 was prepared in the house of defendant No.1.

PW. 2 had categorically deposed before the court and even emphasized about the execution of Ex.A.1 in the house of defendant No.1. It is obvious that the person who denies the fact will not admit even if a question is posed to him. When the defendant No.1 is vehemently contended that the signature on Ex.A.1 is not of him, obviously he would deny the said fact even if the document is shown to him. As per Sec. 73 of the Indian 26

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Evidence Act, the court can compare the signatures available on other documents to come a conclusion and to give finding about the genuiness of the said document. Invoking the above section vested on the court under

Sec.73 of Evidence Act when this court carefully perused the signature on

Ex.A.1 with the signatures of the defendant No.1 herein made on

Vakalathnama, chief examination affidavit and the signature put by him

before the court on his cross examination, it clearly shows that the

signature on Ex.A.1 is put by defendant No. 1 herein. When we compared the signatures on Ex.A.1 and the admitted signatures of defendant No. 1 on the documents before this court, it clearly shows that the signature on

Ex.A.1 is tallying with the admitted signatures put by the defendant No.1

before this court. Therefore, in view of the above discussion coupled with

the reasons stated supra, the plaintiff could establish that Ex.A.1 non possessory agreement of sale was executed defendant No. 1 on 21.09.2013 at the house of the defendant No.1 and he both put his signature infront of PW. 1 and then the PW.2 put his signature as 1st attestor to Ex.A.1. The contents of Ex.A.1 i.e., terms and conditions mentioned therein are scribed by one Ede Malleswara Rao after the defendant No. 1 and plaintiff No.1 come with a conclusion as referred in

Ex.A.1 that means, the defendant No. 1 agreed to sell the plaint schedule property herein i.e., the schedule property of Ex.A.1 to the plaintiff No.1 for an amount of Rs.11,00,000/- per acre in total Rs.47,85,000/- and by receiving Rs.21,22,000/- as advance payment. When the contents of

Ex.A.1 are proved to be made to the understanding of plaintiff and defendant No. 1 and herein, it shows that the sale transaction agreed under

Ex.A.1 should be completed within 90 days from the date of execution of

Ex.A.1 i.e., 21.09.2013.

(j) Coming to the payment of Rs. 21,22,000/- by plaintiff No.1 to defendant No. 1 towards part of sale consideration on 21.09.2013 at the 27

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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time of execution of Ex.A.1 is concerned, the plaintiff as PW.1 deposed that he paid Rs. 21,22,000/- to the defendant No. 1 towards advance sale consideration out of sale consideration of Rs.47,85,000/- and he paid the said amount at the time of execution of Ex.A.1. PW.1 deposed that he paid an amount of Rs.21.22.000/- in cash to the defendant No. 1 towards advance and at that time the defendant No.1. The defendant No.1 had received the said amount from him. The defendant No.1 did not choose to give a specific suggestion to PW.1 that he did not pay Rs.21,22,000/- to the defendant No.1 and that the defendant No. 1 did not receive the said amount from him towards advance sale consideration for purchasing of plaint schedule property herein. The PW.2 had categorically deposed that the plaintiff paid an amount of Rs.21,22,000/- as earnest money to the defendant No. 1 on 21.09.2013 at the time of execution of Ex.A.1. The defendants did not give a specific suggestion even to this witness also that the plaintiff did not pay an amount of Rs.21,22,000/- towards advance sale consideration to defendant No. 1 and what PW.2 deposed is false. So, from the evidence of PWs. 1 and 2 it clearly establishes that the plaintiff paid an amount of Rs.21,22,000/- to the defendant No. 1 in the presence of

PW. 2 towards advance sale consideration from out of agreed total sale consideration of Rs.47,85,000/- on 21.09.2013.

(k) Coming to the aspect of ready and willing of plaintiff to perform his part of contract, it is to be seen whether the plaintiff expressed his ready and willingness in performing his part of contract. The burden is on the plaintiffs to prove whether they are ready and willing to perform their part of contract. In order to obtain a decree for specific performance, the plaintiff must aver and prove that he has performed his part of the contract and has always been ready and willing to perform the terms of the contract which are to be performed by him. Section 16(c) of the Specific Relief Act mandates ‘readiness and willingness’ of the plaintiff to be averred and 28

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

proved and it is a condition precedent to obtain the relief of specific performance. As per the recital in the agreement, the plaintiff would come forward to fulfill the terms and conditions of the agreement. It is the contention of the plaintiff No.1 that as per the terms of the agreement of sale, he shall pay the balance amount of sale consideration of

Rs.26,63,000/- to the defendant No.1 within 90 days from the date of agreement of sale and shall get the suit property registered in his favour or on his behalf at his cost. He is always ready and willing to perform his part of contract and he is ready to pay balance amount of sale consideration and get the property registered in his favour at his cost. On the other hand pleadings and evidence of plaintiff No.1 is silent on steps taken by the plaintiff No.1 as expected of a reasonable person which has not been taken in the instant case namely the plaintiff has not produced any evidence either oral or documentary to establish that there was any demand made by him for the balance amount which he had to pay. No witnesses have been examined on behalf of the plaintiffs to establish that at any point of time there has been demand made by the plaintiff No.1 with the defendant No.1 by calling upon him to receive the balance amount as agreed under the agreement of sale Ex.A1. It is for the first time after a period of 8 months from the date of agreement Ex.A.1 namely on 21.08.2014 legal notice (Ex.A2) was got issued or in other words plaintiff was silent for a period of 8 months in enforcing of the agreement of sale. A perusal of Ex.A.1 it would show that the terms of the agreement under Ex.A.1 is within 90 days the plaintiff has to pay the balance amount i.e, on 20.12.2013 and if he fails to pay the balance on or before 20.12.2013, from the next day onwards i.e, from 21.12.2013 he has to pay interest at 12% per annum on the balance amount. The plaintiff got issued a legal notice on 21.08.2014 vide Ex.A.2 expressing his readiness to go ahead with the transaction and calling upon the vendors to execute the sale deed. That means nearly for 8 months after the expiry of 90 days period. The plaintiff vendee did nothing to act in 29

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

furtherance of the agreement. Excepting a bald and vague assertion that he was contacting the vendors but they were dodging nothing more is brought on record to satisfy the court that the plaintiff was at all material times interested. As rightly pointed argued by the learned counsel for the defendant, the plaintiff has not produced any satisfactory evidence to prove his readiness and willingness. As regards ‘willingness’ of the plaintiff to perform his part of the contract, the conduct of the plaintiff warranting the performance has to be looked into. The following conduct of the plaintiff warrants consideration:

a. Plaintiff got issued legal notice nearly after 8 months after the expiry of 90 days period as prescribed in the agreement.

b. Plaintiff has not brought anything on record to prove that he contacted the Defendant No.1 after the expiry of 90 days period and was interested in finalising the deed.

c. There was total inaction of the Plaintiff from 20.12.2013 (expiry of one year period) to 21.08.2014 (Date of issuance of legal notice) d. Suit was filed on 26.08.2014 i.e. after a period of 8 months from the date of expiry of agreement period. Said delay has not been sufficiently explained by the Plaintiff.

The continuous readiness and willingness is a condition precedent to grant the relief of specific performance. Hence, it is clearly establishes that plaintiff No.1 has not sufficiently explained and proved that he was always ready and willing to perform his part of the contract. The learned counsel for defendants argued that it is for the plaintiffs to prove their readiness and willingness to perform their obligations under alleged agreement and where the certain amount has been paid in balance and the balance has required to pay within a stipulated time, it is for the plaintiff to show that he was in 30

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

possession to pay the balance amount. On this, he relied on a decision made in a case of U.N.Krishnamurthy (since deceased) thr. Lrs vs A.M.

Krishnamurthy, before the Hon’ble Supreme Court vide judgment dt.

12.07.2022 reported in Civil Appeal No. 4703 OF 2022 [ARISING OUT OF

SLP (C) NO. 19463 of 2018] wherein the Hon’ble Supreme Court had held that:

“It is settled law that for relief of specific performance, the

Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.

47. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiff’s balance sheet that he did not have sufficient funds to discharge his part of contract in

March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiff’s readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth

Dhondiba Chavan (supra) where this Court speaking through

Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and 31

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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willing to perform his part of contract. Deposit in court would not establish Plaintiff’s readiness and willingness within meaning of section 16(c) of Specific Relief Act. The relevant part of the judgment is reproduced below: - “45. Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16(c) of the Specific Relief Act.”

48. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance.

49. The Respondent Plaintiff may have been willing to perform his part of contract. It however appears that he was not ready with funds. He was possibly trying to buy time to discharge his part of contract.

50. In Bhavyanath v. K.V. Balan cited by Mr. Raju to contend that the Respondent Plaintiff was entitled to relief of specific performance and the courts had rightly granted such relief, the

Plaintiff had filed the suit for specific performance three days after the last day for execution of the sale deed. In this case however, the Respondent Plaintiff waited for nearly 3 years and filed the suit for specific performance just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V. Balan (supra) the Plaintiff had adduced cogent evidence to prove his 32

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the

Respondent Plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to enable him to discharge his part of contract. Therefore,

Bhavyanath v. K.V. Balan (supra) is of no assistance to the

Respondent Plaintiff.

51. In view of foregoing, this Court is of the considered opinion that the Respondent Plaintiff was not entitled to the relief of specific performance. The Trial Court and the High Court erred both in law and on facts in granting such relief.

It is also pertinent to note here that the plaintiff though filed the present suit within a span of one year from the date of execution of Ex.A.1 agreement to sell, did not choose to request the defendant No.1 in writing either by way of issuing a letter or notice or legal notice to the defendant calling upon him to perform his part of contract, as the plaintiff is ready with balance of consideration of Rs.26,63,000/- with him as agreed in Ex.A.1 agreement to sell dt. 21.09.2013. The pleadings and evidence put-forth by the plaintiff clearly establishes that the plaintiff did not perform his part of contract as per the terms and conditions agreed upon by him under Ex.A.1 agreement to sell dt. 21.09.2013. It is also pertinent to note here that the plaintiff No.1 not even filed any document to show that he is ready with cash of

Rs.26,63,000/- with him as on the date of filing of the present suit as required in terms of agreement to sell dt. 21.09.2013. It is a settled principle of Law as held by the Hon’ble Apex Court in a decision made in a case of

Kamal Kumar Vs. Premlata Joshi and others [2019 (1) ALT 30 (SC)]

where the Hon’ble Apex Court had held that it is a settled principle of Law 33

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

that the grant of relief of specific performance is a discretionary and equitable relief and the plaintiff must fulfill material questions as held by the

Hon’ble Apex Court as under :

“10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief.

The material questions, which are required to be gone into for grant of the relief of specific performance, are first, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.”

When there is a specific clause in the agreement of sale Ex.A.1 that if the plaintiff failed to perform his part of contract, then he is not entitled for specific performance of contract in his favour. The Hon’ble Apex Court in a case of Bal Krishna and another Vs. Bhagwan Das (Dead) & others [2008 Supreme (SC) 522], regarding readiness and willingness of the plaintiff, had held as under :

34

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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“8. ……….. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaintiff. The plaintiffs readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the Court. It is also settled by various decisions of this

Court that by virtue of section 20 of the Act, the relief for specific performance lies in the discretion of the Court and the Court is not bound to grant such relief merely because it is lawful to do so. …………. In other words, the courts discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void.

17. We have already recorded a finding that the document

Ex.P1 dated 19.7.1952 was not executed by the defendant in favour of the plaintiffs. The document Ex.P1 dated 21.7.1952, which has been executed after the sale deed

dated 19.7.1952, was executed by the defendant for

reconveying the property in favour of the plaintiffs. That document indicates that the consideration for the reconveyance would be Rs.25,000/-. The plaintiffs case throughout in the plaint as well as in the evidence was that they were and are ready and willing to purchase the suit house for the consideration of Rs.10,000/-. In the absence of pleadings or proof by the plaintiffs as to their willingness and readiness to perform their part of the contract and get the sale deed executed in their favour on payment of Rs.25,000/- 35

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

, no case is made out by the plaintiffs for specific performance of the contract of reconveyance.”

In another case of Vijay Kumar and others Vs. Om Prakash [2019(1)

ALD 67 (SC)] the Hon’ble Apex Court had held as under :

“7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff. In the case in hand, though the respondent/plaintiff has filed the suit for specific performance on 29 th April, 2008, the respondent/plaintiff has not shown his capacity to pay the balance sale consideration of

Rs.22,00,000/- . In his evidence, the respondent/plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the trial Court, the respondent/plaintiff could not produce any document to show that he had the amount of Rs.22,00,000/- with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Furthermore, as rightly pointed out by the trial Court, the respondent/plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the trial

Court that the respondent/plaintiff has not been able to prove his readiness and willingness on his part.

36

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

8. The relief for specific performance is purely discretionary.

Though the respondent/plaintiff has alleged that he was ready and willing to perform his part of the contract, the first appellate Court ought to have examined first whether the respondent/plaintiff was able to show his capacity to pay the balance money. In our considered view, the first appellant

Court as well as the High Court has not properly appreciated the evidence and the conduct of the parties. The first appellant Court as well as the High Court, in our view, was not right in reversing the judgment of the trial Court and the impugned order cannot be sustained and liable to be set aside.”

Furthermore, the plaintiff No.1has to prove his readiness and willingness to pay the balance of consideration and he has to prove that he is having capacity (readiness) from the date of agreement till the date of decree. The conduct of the plaintiff in the suit about non issuance of legal notice and non production of his bank account statement etc., to show that he is having ready cash with him to pay the balance sale consideration of Rs.26,63,000/- from the date of execution of agreement to sell till the date of filing of the suit and thereafter also. It itself disentitles him from seeking any relief of specific performance. Mere fact that there is an agreement to sell will not entitle him to seek a decree. His conduct is an important factor for granting or refusing the discretional remedy of specific performance. In the present case, the plaintiff agreed to purchase the property for a total balance consideration of Rs.47,85,000/- and he paid Rs.21,22,000/- as advance and still he has to pay a huge amount of Rs.26,63,000/- to the defendant. Even though there is a recital in Ex.A.1 that if the defendant failed to perform his part of contract on or before 90 days i.e., 20.12.2013 from the next day onwards i.e., from 21.12.2013 he has to pay interest at 12% per annum on 37

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

the lance amount. But no wherein the suit it was elicited that the plaintiff paid any interest after completion of 90 days. The plaintiff did not show his readiness by way of proving his necessary financial capacity i.e. he is having Rs.26,63,000/- with him as on the date of filing of the suit and till date. It is a fact that the defendant No.1 though made his appearance by way of filing vakalat and written statement and but not choose to cross- examine the witnesses examined on behalf of plaintiff, it cannot be a ground to draw adverse inference. Mere expressing readiness would itself is not sufficient to fulfill the contract and the plaintiff has to establish that he is ready with balance sale consideration amount, to pay the same to defendant and to get execute a regular sale deed in his favour. In the absence of the same, it cannot be said that it is the defendant No.1 who breached the contract. From the pleadings and the evidence put-forth by the plaintiff, it clearly shows that the plaintiff himself breached the contract under Ex.A.1 and therefore, he is not entitled for specific performance of

Ex.A.1 in his favour and against the defendant. Therefore, in view of the detailed discussion coupled with the reasons stated supra, basing on the pleadings and evidence put-forth by the plaintiff, it cannot be said that the plaintiff No.1 is ready and willing to perform his part of contract and that the defendant failed to perform his part of contract as per the terms of agreement to sell dt.21.09.8/Ex.A.1. In other words, it follows that the plaintiff failed to prove his case and therefore, the plaintiff is not entitled for specific performance of agreement to sell dt.21.09.2013/Ex.A.1 in his favour and against the defendant. Points 1 to 3 and 5 are answered accordingly.

15. Point No.4 and 6:

(j) Now it is to determine whether the defendant Nos. 2 and 3 are the alleged bonafide purchasers of defendant No.1 or not? To prove the defendant Nos. 2 and 3 a bonafide purchasers under an agreement of sale 38

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

cum GPA, the defendants need to demonstrate that they acted in good faith, paid the agreed price, and had no prior knowledge of any adverse claims or encumbrances on the property. In order to their contention that they are the bonafide purchasers, the defendant No.2 himself examined as

DW.1. DW.1 in his evidence he stated that the defendant Nos. 2 and 3 are the G.P.A Holders of the 1st defendant and later they have put in possession and enjoyment of the plaint schedule property. They purchased the plaint schedule property under agreement of sale-cum-G.P.A and they are bonafide purchasers for a valuable consideration. The alleged paper publication is not known to them. They are the bonafide purchasers without any notice for a valuable consideration. Basing on the GPA issued by 1st defendant in favour of defendant Nos.2 and 3, dt 10.9.2014, the 2nd defendant has executed sale deed in favour of Tirumala Gudimella Pushpa on 31.12.2014 vide doc. No.9427/2014 under Ex.X1 for a valuable consideration of Rs.17,20,000/- and so far as 3rd defendant is concerned, he too executed sale deed in favour of the Tirumala Gudimella Srinivas on 31.8.2014 in respect of the plaint schedule property for a valuable consideration of Rs.16,00,000/- vide doc.No.9408/2014 under Ex.X.2, therefore both the defendants are already sold the property to one

Gudumella Srinivas, in turn the said Gudimella Srinivas sold the plaint schedule property to one Keerthi Srinivasa Solutions Pvt. Ltd., rep. by

Managing Director Kota Sri Ranga Satya Balaji for a valuable consideration of Rs.74,70,000/- on 21.10.2021 vide doc.No.8901/2021 and that right now the property stands in the name of Keerthi Srinivasa Solutions Pvt. Ltd. So, basing on the said sale deed, the said Keerthi Srinivasa Solutions Pvt. Ltd., applied for permission for conversion of the land from wet land into non- agricultural purpose, accordingly the RDO accorded sanction in proceedings No.RCF577/2022, dt.26.4.2022. Therefore at present the schedule property stands in the name of Keerthi Srinivasa Solutions Private

Limited. In the cross examination he deposed that he purchased the 39

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

property from defendant No.1 under Ex.A.6 document and defendant No.1 put his signature on Ex.A.1. The learned counsel for plaintiffs mainly submitted that the Subsequent Buyers were not bonafide purchasers without notice because they did not make sufficient enquiry with regard to the earlier transactions which had been entered into by the defendant No.1 with the plaintiff No.2. He further argued that if they are the Subsequent

Buyers they would have made detailed enquiry with regard to the records of the defendant No.1 but by not doing so, the Subsequent Buyers had shown gross negligence and therefore, it cannot be said that the Subsequent

Buyers were bonafide purchasers without any notice with regard to earlier transactions entered into between the defendant No.1 and the plaintiffs. He further contended that the burden of establishing the bonafides of the

Subsequent Buyers was on them and the said burden had not been discharged by them and therefore, the defendant Nos. 2 and 3 cannot be treated as bonafide purchasers. To substantiate their contention, the defendant Nos. 2 and 3 examined the Sub Registrar, Machilipatnam as

DW.2 and he produced the attested copies of the registered sale deeds vide doc Nos. 9407/2014, 9408/2014, dt. 31.12.2014 and doc. No.

8901/2021, dt. 27.10.2021 which are marked as Ex.X.1 to X3 respectively.

In his evidence, DW.2 deposed that Ex.X.1 dt. 31.12.2014 was executed by

Peddi Subha Anjaneyulu represented by General Power of Attorney Holder

Pamathi Manga Rao in favour of Srimath Tirumala Gudimella Pushpahas and Ex.X.2, dt. 31.12.2014 was executed by Peddi Subha Anjeneyulu, represented by GPA holder Thota Ranga Arjuna Rao in favour of srimath

Tirumala Gudimella Pushpahas and whereas Ex.X.3 dt. 27.10.2021 was executed by Srimath Tirumala Gudimella Pushpahas, in favour of Keethi

Srinivasa Solutions Private Limited. The first and foremost contention of the learned counsel for the plaintiffs is that defendant No.2 who was examined as DW1, admitted to the receipt of total sale consideration under

Agreement of Sale cum GPA document bearing No.9407 of 2014 dated 40

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

31.12.2014 and sold the same to them by defendant No.1, as such, defendant No.2 and 3 are the absolute owners and possessor and bonafide purchasers, thus, the Agreement of Sale - cum - GPA dated 31.12.2014 is valid document. It is further contended that the defendant No.2 and 3 are bonafide purchaser having purchased the properties under Ex.X1 and X.2 by paying considerable value without having any knowledge or notice of such alleged earlier agreement of sale, the defendant No.2 and 3 cannot be put to loss or injury. As seen from Ex.X1 and X2 i.e., sale deeds through which the defendant No.2 and 3 have purchased Ac.4.35 cents

R.S.No.73/1 for a sale consideration of Rs.17,20,000/-. Ex.X2 dated 31.12.2014 is the Agreement of Sale - cum - GPA through which defendant

No.1 authorized defendant No. 3 to alienate the suit schedule property to third parties. DW.1 further deposed in his evidence that he and defendant

No. 3 together sold away the suit Schedule Property to Gudimella

Pushpahasan. The learned counsel for the plaintiff argued that Section 52 of the Transfer of Property Act which lays down the principle of lis pendens that when a suit is pending during the pendency of such suit if a sale is made in favour of other person, then the principle of lis pendens would be attracted. Therefore, the question before us in this case is what is the effect of the lis pendency on the subsequent sale of the same property by the owner to the second purchaser. Section 19 of the Specific Relief Act clearly says subsequent sale can be enforced for good and sufficient reason but in the present case, there is no difficulty because the suit was filed on 26.08.2014 for specific performance of the agreement and the second sale took place on 31.12.2014. Therefore, it is the admitted position that the second sale was definitely after the filing of the suit in question.

Had that not been the position then we would have evaluated the effect of

Section Section 52 of the Transfer of Property Act. But in the present case it is more than apparent that the suit was filed before the sale of the property.

The learned counsel for the plaintiffs contended that the defendant No.1 41

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

did not enter into the witness box to prove his case. In legal terms, when a bonafide purchaser (a buyer who purchases property in good faith, for value, and without notice of any other claims or defects in the title) acquires property from a defendant, the purchaser essentially "steps into the shoes" of the defendant, meaning they inherit the defendant's rights and obligations regarding that property. The onus is on the purchaser to prove that they are a bona fide purchaser, meaning they must demonstrate they acted in good faith, paid value for the property, and had no notice of any prior claims or defects in the title. Regarding the burden of proof, the onus is on the purchaser to prove the good faith who takes the place that he is an innocent purchaser. Moreover, the pleadings as to bonafide purchase is very much necessary. The bonafide purchaser must plead and lead evidence that he is a bonafide purchaser. It is also a well-settled principle of law that not only the original vendor but also a subsequent purchaser would be entitled to raise a contention that the plaintiff was not ready and willing to perform his part of contract. A perusal of both Ex.X.1 and X2 sale deed the consideration has been paid by the defendant Nos. 2 and 3 to the defendant No.1. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers. No evidence was adduced by defendant Nos. 2 and 3 about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of execution of sale deed. Hence, the sale deeds will have to be held as void being executed without consideration. In fact, such a transaction made by defendant Nos. 2 and 3 of selling the suit properties on the basis of the power of attorney of the defendant No.1 is a sham transaction. As referred supra, the plaintiffs failed to establish that they had all along been ready and willing to perform their part of contract. When the plaintiffs themselves breached the contract and did not come forward to pay the balance sale consideration, then the contract which was executed between 42

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

both the parties is not in existence and there is no step on behalf of the plaintiffs within the stipulated period of time. Since, the contract that executed is not existence anymore the defendant Nos. 2 and 3 obviously become bonafide purchasers of the suit Schedule Property. In view of the above facts and circumstances, it establishes that the defendant Nos. 2 and 3 are bonafide purchasers and the defendant No.1 executed the registered sale deed in favour of defendant Nos. 2 and 3 is a valid document.

Accordingly issue Ns. 4 and 6 are answered in favour of defendants.

16. Issue No. 7:

(a) Coming to the alternative relief sought by the plaintiffs to direct the defendant No.1 for refund of the amount together with interest is concerned, the plaintiffs filed the present suit seeking specific performance of agreement of sale dated 21.09.2013 and to direct the defendant No.1 to execute a regular registered sale deed in their favour in the event he failed to do the same, the same may be ordered through Court of law and in alternative if the specific performance of contract i.e. agreement of sale under Ex.A1 is not permissible under law and facts, then in alternative direct the defendant No.1 to refund the advance amount together with interest. It is an undisputed fact that the defendant No.1 executed an agreement of sale dated 21.09.2013 in favour of the plaintiffs agreeing to sell the suit schedule property for total sale consideration of Rs.47,85,000/- and received Rs.21,22,000/- as advance sale consideration from the plaintiffs on the date of agreement itself i.e., 21.09.2013. It is agreed between the parties that the plaintiffs shall pay the balance sale consideration of Rs.26,63,000/- within 90 days i.e., 20.12.2013, if they failed to pay the same on or before 20.12.2013 from the next day onwards i.e., from 21.12.2013 the plaintiffs have to pay interest at 12% per annum on the balance amount. The pleadings and evidence put forth by the 43

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

plaintiffs would clearly shows that, the plaintiffs could not perform their part of contract within stipulated period of time as agreed under Ex.A.1. As per the terms of contract under Ex.A.1, there is no specific clause of either cancellation or forfeit of advance amount paid by the plaintiffs if they or she failed to perform part of contract. The specific clause that was incorporated in Ex.A.1/agreement of sale is that the plaintiffs should pay the balance sale consideration of Rs.26,63,000/- by 20.12.2013, if fails they have to pay interest from 20.12.2013. Therefore, there is no such specific clause with regard to forfeiture of the advance sale consideration that was paid by plaintiffs to the defendant. In the instant case, the plaintiff No.1 proved his case that he and the defendant No.1 entered into an agreement and he paid an amount of Rs.21,22,000/- towards advance sale consideration of the agreement, but the plaintiff failed to prove his readiness and willingness in performing the contract. Therefore, the plaintiffs are not entitled for relief of specific performance of contract in their favour and against the defendants. In a breach of contract, the general rule is that the advance deposited being part of the purchase price cannot be recovered alone. But it will have to be set of costs of any damages awarded to the innocent party.

In such case, the forfeiture clause will be treated as equivalent to penalty clause. In the case of earnest money, forfeiture alone is sustainable and it is not treated as penalty. But it will be treated as penalty when the payment is made in addition to forfeiture of earnest money. As per Section 22 of

Specific Relief Act when a breach of contract occurs, a person who comes for specific performance can ask for refund of earnest money or advance deposited. In case of forfeiture of earnest money, it is necessary to have a specific clause in the contract. A right to forfeiture is contractual right. A forfeiture clause is a penal in character and therefore the contracting parties must agree to stipulate terms in record to forfeiture in the contract itself. In the instant case, the terms mentioned in Ex.A.1 agreement of sale would not show that the plaintiffs and defendant agreed that in case of failure of 44

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

payment of balance of sale consideration of Rs.26,63,000/- within stipulated period of time, i.e. 20.12.2013, the advance amount shall be forfeited. In the present case, there is no such forfeiture clause in Ex.A.1 agreement of sale to forego the advance amount of Rs.26,63,000/- that was paid by the plaintiffs to the defendant. As held supra, in the present case, the plaintiff himself breached the agreement of sale under Ex.A.1. It is true that in a breach of contract the buyer has right to cancel the contract and to obtain the advance amount along with interest and compensation for any loss sustained. Similarly, if a buyer violates the terms of the contract or he has not complied his part of performance within the stipulated time framed, the seller has right to forfeit the advance or earnest money as terms of contract stipulate. The Hon’ble Supreme Court in a case of Kamal Kumar Vs.

Premlata Joshi and others reported in [2019 (1) ALT 30 (SC)] reaffirmed the following ingredients which must be present in the contract so as to enable the seller to forfeit earnest money.

(1) Whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; (2) Whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; (3) Whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; (4) Whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what 45

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

manner and the extent if such relief is eventually granted to the plaintiff; (5) Whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc.

and, if so, on what grounds.”

In the present case, admittedly, the amount of Rs.21,22,000/- was given by the plaintiffs to the defendant No.1 at the moment of execution of contract agreeing to pay the balance sale consideration within 90 days i.e., by 20.12.2013 and there is a clause what to do if the plaintiffs failed to come forward with the balance sale consideration as agreed under Ex.A.1.

However, the agreement itself is silent with regard to forfeiture of earnest money or with regard to damages or compensation or penalty etc hence, the defendant is entitle to return of the advance money i.e., earnest money.

Therefore, the defendant is entitled to return the advance amount of

Rs.21,22,000/- admittedly paid by the plaintiffs to him. Therefore, under these facts and circumstances, the plaintiffs are entitle for refund of

Rs.21,22,000/- from the defendant No.1.

(b) Coming to the aspect of interest on the refundable amount of

Rs.21,22,000/-, it is the plaintiffs who breached the contract and there is no fault on the part of defendant No.1 in not fulfilling the contract. As seen from the evidence of the defendants, the defendant No.1 even did not issue any legal notice prior to Ex.A.2 calling upon the plaintiffs to know their ready and willingness in executing regular registered sale deed by paying balance sale consideration. Therefore, under these facts and circumstances and discussion made supra, the plaintiffs are entitled for interest on the refundable amount. Hence, in view of the observations and findings made supra, the plaintiffs are entitled for refund of the amount of Rs.21,22,000/- that was paid by them to the defendant No.1 as advance amount with any 46

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

interest on it. Point No.7 is answered accordingly in favour of plaintiffs and against the defendant.

17. ISSUE No.8:-

IN THE RESULT, the Suit in O.S.41/2014 is disposed of directing the 1st defendant to refund the advance amount of Rs.21,22,000/- (Rupees twenty one lakhs twenty two thousand only) that was paid by the 1st plaintiff to him at the time of agreement of sale, dated 21.09.2013 along with subsequent interest at the rate of 6% per annum from the date of this judgment to till the date of realization within 3 (three) months from the date of this Judgment. The relief of Specific Performance of Agreement of Sale, dt.21.09.2013 is hereby rejected. Both parties do bear their own costs.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open Court on this the 21st day of March, 2025.

Principal District Judge,

Krishna, Machilipatnam.

Appendix of evidence

Witnesses examined

For Plaintiffs: For Defendants:

P.W.1: Aggala Durga Prasad D.W.1: Thota Ranga Arjuna Rao

P.W.2: Kommuri Rama Koteswara Rao DW.2: K.Jagan Mohan Rao, Sub Registrar, Machilipatnam.

Documents Marked

For Plaintiffs:

Ex.A.1: Agreement of sale,

Ex.A2 : Office copy of legal notice got issued to defendant No.1 on 21.08.2014,

Ex.A.3 : Postal receipt, dt. 21.08.2014, 47

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Ex.A.4 : Refused legal notice of defendant No.1, dt. 22.08.2024,

Ex.A.5 : Registered GPA in favour of defendant No.2, dt. 10.09.2014,

Ex.A6 : Registered GPA in favour of defendant No.2, dt.10.09.2014,

For defendants:

Ex.X.1 : Attested copy of registered sale deed vide doc. No. 9407/2014,

dt. 31.12.2014 of SRO, Machilipatnam,

Ex.X.2 : Attested copy of registered sale deed, vide Doc. No. 9408/2014,

dt. 31.12.2014 of SRO, Machilipatnam

Ex.X3 : Attested copy of registered sale deed, vide Doc. No.8901/2021,

dt. 31.12.2014 of SRO, Machilipatnam

Principal District Judge,

Krishna, Machilipatnam.

1

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE,

KRISHNA AT MACHILIPATNAM

Present: - Smt. Aruna Sarika,

Principal District Judge,

Krishna at Machilipatnam

Friday, this the 21st day of March, 2025

Original Suit No.41 of 2014

Between:

1. Aggala Durga Prasad (died)

2. Aggala Sravanthi, W/o. Late Durga Prasad, Hindu, age 45 years, House wife, R/o. Gollapudi, Vijayawada.

3. Aggala Sai Siddhardha, S/o. Late Durga Prasad, Hindu, age 16 years, student, R/o. Gollapudi, Vijayawada.

4. Aggala Sai Manideep, S/o. Late Durga Prasad, Hindu, age 12 years, student, R/o. Gollapudi, Vijayawada. (Plaintiff No. 4 being minor represented by his mother/natural guardian, Plaintiff No.2 Aggala Sravanthi) (Plaintiff Nos. 2 to 4 are added as LRs of the deceased 1st plaintiff as per orders in I.A.No. 63/2021, dt. 23.02.2023)., … Plaintiffs A n d

1. Peddi Subha Anjaneyulu, S/o Koteswara Rao, Hindu, age 35 years, properties, resident of D.No. 19/96-5, Chilakalapudi, Machilipatnam.

2. Pamarthi Manga Rao, S/o Durgaiah, Hindu, age 71 years, business, R/o D.No. 17/96C, Edepalli, Machilipatnam.

3. Thota Ranga Arjuna Rao, S/o Veera Swamy Hindu, age 27 years, business, R/o. Edepalli, Machilipatnam. (Defendants 2 and 3 are added as per orders in IA.188/2014 dt.30.6.2015) … Defendants

This suit is coming before me on 07.03.2015 for final hearing in the presence of Sri. P.Madhusudhana Rao, Advocate for the Plaintiff and of Sri. K.Sai Mohan Rao, Advocate for defendant No.1, Sri. S. Balaji Rao, Advocate for defendant No. 2 and 3 and the matter having stood over for consideration till this day and the Court delivered the following:

J U D G M E N T

This is an Original Suit filed by the plaintiffs against the defendants praying the Court to grant decree of Specific Performance of agreement of 2

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

sale, dt.21.09.2013 by directing the defendants to execute regular

Registered Sale Deed in favour of plaintiff Nos. 2 to 4 in respect of plaint schedule property i.e., a dry land in an extent of Ac.4.35 cents in

R.S.No.73/1 situated at Mekavaripalem, Bandar Mandal, SRO,

Machilipatnam bounded by,

East: Land of Valisetty Narasiimha Rao,

South: Donka,

West: Land of Yarlagadda Neelachalam

North: Meka vari land, in the place of agreement of sale, dt. 21.09.2013 after receiving the balance of sale consideration of Rs.26,63,000/- or alternatively to pass a decree for

Rs.21,22,000/- in favour of the plaintiff Nos. 2 to 4 against the defendants with subsequent interest at 12% per annum from the date of agreement till the date of realiazation and to grant costs. If the defendant No.1 failed to perform his part of contract and the court directly register the schedule property in favour of the plaintiff.

3. The averments of the plaint, in brief, are as follows: - “Originally the schedule property is a dry land in an extent of Ac.4.35 cents in R.S.No.73/1, situated Mekavaripalem, Bandar Mandal and the same was purchased by the defendant No.1 with his self-earnings from one Penumaka Amma Rao, on 10.8.2005 under registered sale deed in doc. No.3315/2005 of

Machilipatnam SRO and since then the defendant No.1 is in possession and enjoyment of the schedule property with absolute right, title possession and enjoyment and interest over the schedule property. The defendant No.1 offered the plaintiff No.1 to sell the plaint schedule property and the plaintiff

No.1 agreed to purchase the same and after negotiations, the rate was fixed at Rs.47,85,000/- (Rupees forty seven lakhs eighty five thousand only) for the total extent of Ac.4.35 cents, i.e. Rs. 11,00,000/- per acre. Accordingly the deceased 1st Plaintiff agreed to purchase the plaint 3

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

schedule property for the said price from the defendant, the terms and conditions are reduced into writing. The deceased 1st plaintiff and the defendant entered into an agreement of sale on 21 9.2013 and the deceased 1st plaintiff paid Rs.21,22,000/- towards advance to the defendant No.1 on the same day and the balance amount of Rs.26,63,000/- has to be paid by the deceased 1st plaintiff within 90 days i.e, 20.12.2013. If the deceased 1st plaintiff failed to pay the balance on or before 90 days i.e., 20.12.2013 from the next day onwards i.e., from 21.12.2013 the deceased 1st plaintiff has to pay interest at 12% p.a on the balance amount and accordingly the defendant No.1 executed non-possessory agreement of sale in favour of the deceased 1st plaintiff on the very day itself i.e. on 21.9.2013 in respect of the plaint schedule property and handed over the

Xerox copy of the title deeds and agreed to hand over the original title deeds at the time of registration. The deceased 1st plaintiff is ready with balance sale consideration of Rs.26,63,000/- even on 21.09.2013, but at the request of the defendant No.1, the said balance amount was kept with the deceased 1st plaintiff, thereby the deceased 1st plaintiff continuously ready with money since the date of non-possessory agreement of sale and ready and willing to perform his part of contract of sale. The deceased 1st plaintiff approached the defendant No.1 several times and requested him to execute regular registered sale deed in his favour after receiving the balance of sale consideration, but the defendant No.1 is postponing to execute registered sale deed in favour of the deceased 1st plaintiff on one pretext or other and that the defendant No.1 failed to perform his part of contract of sale. While the matter stood thus, the deceased 1st plaintiff reliably came to know that the defendant No.1 with a malafide intention, to cause wrongful loss to the deceased 1st plaintiff, by violating the terms and conditions of the non-possessory agreement of sale executed by him in favour of the deceased 1st plaintiff, the defendant No.1 is trying to alienate the schedule property to third parties and some intending purchasers are 4

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

also coming and making enquiries about the plaint schedule property. The present government declared the Machilipatnam Port due to that reason, the land values in and around Machilipatnam were abnormally increased, thereby with an evil intention to get more money for the plaint schedule property, the defendant No.1 is trying to alienate the plaint schedule property to third parties. The deceased 1st plaintiff also made oral demands and as well as through elders to execute registered sale deed in his favour, but the defendant No.1 is trying to alienate the plaint schedule property to some others with an intention to cause wrongful loss to the deceased 1st plaintiff and to get wrongful gain for himself. The deceased 1st plaintiff after came to know the said fact, got issued a registered legal notice on 21.8.2014 through his Advocate, demanding the defendant No.1 to come and execute regular registered sale deed in his favour. The defendant No.1 refused the said notice on 22.08.2014, neither gave reply nor came forward to execute registered sale deed in favour of the deceased 1st plaintiff.

Therefore, the deceased 1st plaintiff has no other go except to file suit for specific performance of contract of sale in his favour and against the defendant No.1. After filing of the suit and after Court was pleased to order urgent notice on 2.9.2014, the 1st defendant with a malafide intention to defeat and deprive his rights in the plaint schedule property, executed two registered GPAs on 10.9.2014 i.e., one in favour of the 2nd defendant vide doc.5829/2014 before SRO, and another GPA in favour of the 3rd defendant vide doc. No.5828/-2014 before SRO, Machilipatnam. Hence the defendant Nos. 2 and 3 are added as proper and necessary parties. During pendency of the above suit, the 1st plaintiff has got issued public notice which is published in Eenadu Daily News paper in Krishna District Edition on 7 10.2014 (amended as per IA. 188/2014, dt.30.6.2015). The 1st plaintiff died 29.4.2021, leaving behind his wife and two sons as his LRs and that they were added as plaintiff Nos 2 to 4 in the suit”.

5

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

4. The defendant No.1 filed written statement, the averments made therein, in brief, are as follows: “The defendant No.1 denied all the allegations of the plaintiff mentioned in the plaint. He contended that he never offered to sell the plaint schedule property to the plaintiff No.1 and the plaintiff No.1 never paid any amount to him as advance. The so called agreement of sale is a rank forgery and he never executed any agreement of sale in favour of the plaintiff No.1 and the plaintiff No.1 never offered the balance of consideration of Rs.26,63,000/-. When the agreement of sale itself is a rank forged one, the question of paying balance of consideration does not arise and the plaintiff created a story for the purpose of this suit and there are no bonafidies on the part of the plaintiff No.1. The plaintiff

No.1 has no capacity to pay an amount of Rs.21,22,000/- and he is working as a clerk under one K.Bala Koteswara Rao, as such the plaintiff No.1 has no capacity to pay such huge amount. He admitted that, while the matter stood thus, the plaintiff No.1 reliably came to know that the defendant No.1 with a malafide intention to cause wrongful loss to the plaintiff No.1 by violating the terms and conditions of the non possessory agreement of sale executed in favour of the plaintiff No.1, the defendant No.1 is trying to alienate the schedule property to third parties and some intending purchasers are also coming and making enquiries about the plaint schedule property, the present government declared Machilipatnam Port, due to that reason, the land values in and around Machilipatnam are abnormally increased, thereby the plaintiff No.1 with an evil intention to get more money for the plaint schedule property. The defendant No.1 is trying to alienate the plaint schedule property to third parties, that the plaintiff No.1 made several oral demands as well as through the elders to execute registered sale deed in favour of the plaintiff No.1 but the defendant No.1 with an intention to cause wrongful loss to the plaintiff No.1 and to get wrongful gain. The defendant No.1 is the absolute owner of the schedule property and he executed a registered sale deed in favour of Thota Arjuna 6

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Rao and Pamarthi Manga Rao for a valuable consideration of

Rs.10,00,000/- per acre. Since, then the said Manga Rao and Arjuna Rao have been in possession and enjoyment of the schedule property. The

Plaintiff had failed to prove about his ready and willingness to pay the balance of sale consideration Rs.26,63,000/- in order to show his bonafidies and the plaintiff No.1 failed to submit any documentary proof to show that he is having Rs.26,63,000/- to perform his part of contract of sale and there are no bonafidies for the plaintiff No.1 for his readiness and willingness to perform the contract of sale. The plaintiff No.1 is liable for prosecution for creating a forged and fabricated document. There is no cause of action for the plaintiff No.1 to file this plaint. Hence, prays to dismiss the suit with costs.”

5. The defendant Nos.2 and 3 filed their written statement, the averments made therein, in brief, are as follows: “The material allegation of the plaint that the plaint schedule property is dry land in an extent of Ac.4- 35cts situated in Mekavanipalem village is true and correct. The other allegation that the property was purchased by the 1st defendant from his vendor is also correct and that the 1st defendant is in possession and enjoyment of the property is also correct. They denied the allegations of the plaint that the 1st defendant offered to sell the plaint schedule property to the plaintiff No.1 and he agreed to purchase the same for Rs.47,00,000/- @

Rs.11,00,000/-per acre and that the plaintiff No.1 paid an amount of Rs.21,22,000/-to the 1st defendant on the same day etc., as not true and correct. The defendant Nos 2 and 3 are the G.P.A Holders of the 1st defendant and later they have put in possession and enjoyment of the plaint schedule property. They purchased the plaint schedule property under agreement of sale-cum-G.P.A and they are bonafide purchasers for a valuable consideration. The alleged paper publication is not known to them.

They are the bonafide purchasers without any notice for a valuable 7

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

consideration. They strongly suspect that the suit agreement must have been brought into existence by forging the signature of the landlord. Basing on the GPA issued by 1st defendant in favour of defendant Nos.2 and 3, dt 10.9.2014, the 2nd defendant has executed sale deed in favour of Tirumala

Gudimella Pushpa house on 31.12.2014 vide doc. No.9427/2014 for a valuable consideration of Rs.17,20,000/- and so far as 3rd defendant is concerned, he too executed sale deed in favour of the Tirumala Gudimella

Srinivas on 31.8.2014 in respect of the plaint schedule property for a valuable consideration of Rs.16,00,000/- vide doc.No.9408/2014, therefore both the defendants are already sold the property to one Gudumella

Srinivas, in turn the said Gudimella Srinivas sold the plaint schedule property to one Keerthi Srinivasa Solutions Pvt. Ltd., rep. by Managing

Director Kota Sri Ranga Satya Balaji for a valuable consideration of

Rs.74,70,000/- on 21.10.2021 vide doc.No.8901/2021 and that right now the property stands in the name of Keerthi Srinivasa Solutions Pvt. Ltd. So, basing on the said sale deed, the said Keerthi Srinivasa Solutions Pvt. Ltd., applied for permission for conversion of the land from wet land into non- agricultural purpose, accordingly the RDO accorded sanction in proceedings No.RCF577/2022, dt.26.4.2022. Therefore at present the schedule property stands in the name of Keerthi Srinivasa Solutions Pvt.

Ltd (Amended as per orders in IA.253/2023, dt.20.3.2024. Hence, prays to dismiss the suit with costs”. After adding the defendant Nos. 2 and 3, the defendant No.1 filed additional written statement contending that the plaintiffs themselves have to prove all the averments mentioned in the plaint, excepting those that are specifically admitted herein. The defendant

No.1 craves to leave the contents of main written statement in the suit to read as part and parcel of the additional written statement. There is no cause of action of the plaintiff to file the suit and the one mentioned is not true and correct. Hence, prays to dismiss the suit.

8

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

6. Taking into consideration of the above pleadings, the following issues framed for trial :

1. Whether the agreement of sale dt. 21.09.2013 is true, valid and binding on the defendant No.1?

2. Whether the agreement of sale is a forged one?

3. Whether the plaintiff No.1 is ready and willing to perform his part of contract?

4. Whether the registered sale deed executed by 1st defendant in favour of defendant Nos. 2 and 3 is valid and binding?

5. Whether the defendant Nos. 2 and 3 are bonafide purchasers under agreement of sale-cum-G.P.A holders?

6. Whether the plaintiff is entitled for returned of earnest money of Rs.21,22,000/- with interest from 1st defendant ?

7. To what relief ?

7. To substantiate his case, the plaintiff No.1 got examined himself as

PW.1, got marked Ex.A.1 to A6 on his behalf. The plaintiff No.1 also examined one Kommuri Rama Koteswara Rao Naidu, S/o. Koteswara Rao as PW.2 on his behalf. The defendants examined defendant No.3 as DW.1 and he got examined K.Jagan Mohan Rao, S/o. Venkateswar Rao, Sub

Registrar, Machilipatnam as DW.2 and got marked Ex.X.1 to X3 on their behalf.

8. I have heard the submissions of the learned counsel for plaintiffs and defendants. I have perused the material on record including the pleadings, evidence adduced on behalf of the plaintiff and defendants i.e. oral and documentary.

9. The learned counsel for the plaintiffs argued that the defendant No.1 agreed to sell the plaint schedule property to the plaintiff No.1 for 9

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Rs.47,85,000/- and they both entered into an agreement of sale on 21.09.2013 and the plaintiff No.1 paid an amount of Rs.21,22,000/- towards advance on the same day and the balance amount of

Rs.26,63,000/- has to be paid by the plaintiff No.1 within 90 days i.e., 20.12.2013 and if the plaintiff No.1 fails to pay the balance on or before 90 days from the next day onwards i.e., from 21.12.2013 the plaintiff No.1 has to pay interest at 12% per annum on the balance amount. He further argued that the plaintiff No.1 approached the defendant No.1 several times and requested to execute regular registered sale deed in his favour after receiving the balance ale consideration, but the defendant No.1 postponing the same on one pretext or other and evading to execute a registered sale deed in favour of the plaintiff with dishonest and fraudulent intention of cheating the plaintiff No.1 and there is clause mentioned in the agreement of sale, dt.21.09.2013 that the agreement will be forfeited if the plaintiff fails to pay the balance on or before 90 days i.e., 20.12.2013 from the next day onwards i.e., from 21.12.2013 the plaintiff No.1 has to pay the interest at 12% on the balance amount. The plaintiff is ready and willing to perform his part of contract. The plaintiff got issued registered notice on 21.08.2014 through his advocate demanding the defendant No.1 to execute the sale deed in his favour, but the defendant No.1 did not choose to register the sale deed in favour of the plaintiff. Hence, plaintiff is obliged to file the suit for specific performance of contract dt.21.09.2013. He further argued that after filing the suit the defendant No.1 with a malafide intention executed two registered GPS on 10.09.2014 one in favour of defendant No.2 and 3 respectively and that the plaintiff got issued public notice which is published in Eenadu Daily News paper in Krishna District on 07.10.2014 and on 29.04.2021 and later the plaintiff No.1 died on 29.04.2021 leaving behind his wife and two sons as his LRs and that they were added as plaintiff Nos.

2 to 4 in the suit. He further argued that the defendant No.1 gave GPA to defendant Nos. 2 and 3 and the property sold to them was marked as 10

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Ex.X.1 and Ex.X.2. He further argued that the defendant No.1 did not turn up to give evidence before the court and he was not examined by other defendants also. He further argued that it is the duty of the defendant No.1 to prove Ex.A.1 is forged document. He further argued that the plaintiff

No.1 proved Ex.A.1 by examining himself and by examining the attestor of

Ex.A.1 agreement of sale. Hence, adverse inference can be drawn against the defendant No.1 He further argued that after receiving the notice under

Ex.A.2 the defendant No.1 sold the property to defendant Nos. 2 and 3, under these circumstances the said sale is not genuine and it shows the conduct of the defendant No.1. He further argued that the plaintiff No.1 is always ready and willing to perform his part of contract, but the defendant with an intention of cheating postponed the same on pretext or other. He further argued that Ex.X1 and X2 are collusive documents and the defendant Nos. 2 and 3 are not bonafide purchasers. In the cross examination of DW.1, he categorically admitted that as Port is going to establish due to which the land values of the sites are going hike. He further argued that defendant No.1 did not enter into the witness box and further the defendant Nos. 2 and 3 are not concerned to the readiness and willingness, it is their only concerned if they are Bonafide purchasers or not? Finally he rests his arguments praying to decree the suit.

10. Per contra, the learned counsel for the defendant Nos. 1 to 3 argued that at first the suit was filed against defendant No.1 only and later known that defendant No.1 executed sale deeds in favour of defendant Nos. 2 and 3 and that they both are added as defendant Nos. 1 and 3 respectively.

Defendant Nos. 2 and 3 also alienated the suit properties to the third parties. He further argued the defendant Nos. 2 and 3 never made attempt to brought the 3rd party whom they sold the property on record. Title is transferred in the name of 3rd parties. He further argued that the plaintiff has to take steps to bring them on record. He further argued that after 11 11

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

months he issued notice to the defendant No.1 and later he filed suit on 26.08.2014 and the plaintiff has not waited for time given in notice/Ex.A.3.

by the time of filing the suit notice was not received by defendant No.1. He further argued that notice is mandatory. He further argued that the plaintiff did not prove his readiness and willingness, he kept quiet for 11 months from the date of Ex.A.1, it is the duty of the plaintiff No.1 to prove that he had sufficient amount to fulfill the agreement. Hence, prays to dismiss the suit”.

11. Before pleadings and evidence are analyzed issue wise and are examined in juxta position, it is necessary to refer the details of the documentary evidence which is as follows: - “Ex.A.1 is the agreement of sale, Ex.A2 is the office copy of legal notice got issued to defendant Nos.1 on 21.08.2014, Ex.A.3 is the postal receipt, dt. 21.08.2014, Ex.A.4 is the refused legal notice of defendant No.1, dt. 22.08.2024, Ex.A.5 is the registered GPA in favour of defendant No.2, dt. 10.09.2014, Ex.A6 is the registered GPA in favour of defendant No.2, dt.10.09.2014, Ex.X.1 is the attested copy of registered sale deed vide doc. No. 9407/2014, dt.

31.12.2014 of SRO, Machilipatnam, Ex.X.2 is the attested copy of registered sale deed, vide Doc. No. 9408/2014, dt. 31.12.2014 of SRO,

Machilipatnam and Ex.X3 is the attested copy of registered sale deed, vide

Doc. No.8901/2021, dt. 31.12.2014 of SRO, Machilipatnam

12. Before taking up of the points for determination, it is necessary to mention that the pleadings of plaintiff were already extracted supra in detail.

I have gone through the pleadings, oral and documentary evidence.

13. From the analysis of the pleadings, it is the plaintiffs who have to prove that the Non-Possessory Agreement of Sale, dt.23.11.2006 is still in force as on the date of filing of the suit and that they are always ready and 12

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

willing to perform their part of contract by way of expressing to pay the balance sale consideration of Rs.10,00,000/- to the defendant. The plaintiffs have also to prove that time is not essence of contract and that performance of their part of contract would arise only after the defendant get the suit schedule property surveyed and fix boundaries to it. The burden of proof and initial onus lies on the plaintiffs to establish the above referred issues. As per the provisions of Section 20 of Specific Relief Act, 1963 the plaintiffs have to prove that they are ready and willing to perform their part of contract. The impugned Non-Possessory Agreement of Sale Deed, dt.23.11.2006 which is marked as Ex.A.1, would show that the plaintiffs entered into the said agreement of sale with the defendant No.1 with an intention to purchase the suit schedule property from the defendant No.1 as if they accepted that the defendant is the absolute owner of the suit schedule property. The Agreement of Sale, dt.21.09.2013 would also show that both plaintiff No.1 and defendant No.1 entered into an agreement.

14. POINT NOS.1, 2, 3 and 5 :

a) The plaintiff No.1 filed suit seeking specific performance of agreement to sell dt.21.09.2013 said to be executed by defendant No.1 in his favour.

b) To substantiate his claim, the plaintiff No.1 himself was examined as

PW.1 and Ex.A.1 to A6 were marked on his behalf. The plaintiff got examined one Kommuri Rama Koteswara Rao Naidu, S/o. Koteswara Rao

Dasari Baba Kamali Naga Malleswara Rao, S/o. Late Panduranga

Brahmarao as PW.2. Since the present suit is filed seeking specific performance of agreement to sell involving immovable property, it is necessary to refer the documentary evidence marked on behalf the plaintiff

before scrutinizing the evidence of plaintiff i.e. PW.1 and PW.2 on his

behalf. Ex.A.1 is the agreement of sale. A perusal of Ex.A.1 it would show 13

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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that the on 21.09.2013 the plaintiff No.1 agreed to purchase the Plaint

Schedule Property from the defendant No.1 in an extent of Ac.4.35 cents in total Rs.47,85,000/- and the plaintiff paid an amount of Rs.21,22,000/- to the defendant No.1 on the same day in the presence of attestors and scribe. The recitals further shows within 90 days the plaintiff No.1 has to pay the balance amount i.e, on 20.12.2013 and if he fails to pay the balance on or before 20.12.2013, from the next day onwards i.e, from 21.12.2013 he has to pay interest at 12% per annum on the balance amount. Ex.A2 is the office copy of legal notice got issued to defendant

Nos.1 on 21.08.2014, Ex.A.3 is the postal receipt, dt. 21.08.2014, Ex.A.4 is the refused legal notice of defendant No.1, dt. 22.08.2024, Ex.A.5 is the registered GPA in favour of defendant No.2, dt. 10.09.2014, Ex.A6 is the registered GPA in favour of defendant No.2, dt.10.09.2014, Ex.X.1 is the attested copy of registered sale deed vide doc. No. 9407/2014, dt.

31.12.2014 of SRO, Machilipatnam. A perusal of Ex.X.1 would show that it was it was executed on 31.12.2014 by Peddi Subha Anjaneyulu represented by General Power of Attorney Holder Pamathi Manga Rao in favour of Srimath Tirumala Gudimella Pushpahas. Ex.X.2 is the attested copy of registered sale deed, vide Doc. No. 9408/2014, dt. 31.12.2014 of

SRO, Machilipatnam. A perusal of Ex.X.2, dt. 31.12.2014 would show that it was executed by Peddi Subha Anjeneyulu, represented by GPA holder

Thota Ranga Arjuna Rao in favour of srimath Tirumala Gudimella

Pushpahas and Ex.X3 is the attested copy of registered sale deed, vide

Doc. No.8901/2021, dt. 31.12.2014 of SRO, Machilipatnam. A perusal of

Ex.X.3 would show that it was executed on 27.10.2021 by Srimath

Tirumala Gudimella Pushpahas, in favour of Keethi Srinivasa Solutions

Private Limited.

c) Coming to the evidence adduced by the plaintiff, as referred supra, the plaintiff himself was examined as PW.1 and marked Ex.A.1 to A6 on his 14

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

behalf. PW.1 in his chief-examination which was taken in the form of solemn sworn affidavit had reiterated his pleaded case and transcribed the same into direct evidence. In his cross examination made on behalf of defendant No.1, he deposed that he is not an income tax assesse. He had not shown the alleged sale consideration in his income tax returns. He admitted that he has no documentary proof to show that he paid

Rs.21.22.000/- to defendant No.1 as on the date of the alleged Ex.Al either by way of bank statement or any recorded proof. He deposed that he had not file any documentary proof to show he had Rs.26,63,000/ which is the remaining sale consideration to be paid to defendant No.1 to show his readiness and willingness. With regard to the agreement, PW.1 deposed that Hundred Rupee stamp paper on which Ex A.1 was allegedly written was purchased in the name of D.1. He admitted that Ex A.1 stamp was sold to Aggoli Durga Prasad S/o.Apparao, Gollapudi. He admitted that beneath the signatures of the executant/D.1 he has not mentioned the date of

Ex.A.1 document. He admitted that D1 sold away the schedule property to

D3. He admitted that Ex.A.1 was not got registered by him. There is no special reason for non execution of Ex.A.1 He obtained link document of D.I relating to Ex.A.1. The rest of the cross examination is nothing but suggestions to the effect that D.1 never entered in to an agreement of sale with him and never agreed to sell the schedule property to him and that the thumb impressions of D1 were obtained on blank stamp papers and fabricated and created Ex A.1 for wrongful gain and that the suit instituted by him is not maintainable as he had not shown his readiness and willingness to perform his part of contract and that Ex.A.1 is a forged document and that he is deposing false and he is not entitled for any relief and that he had no capacity to pay the amount as alleged in Ex.A.1 and that

D.1 never executed Ex.A.1 and never entered in to any agreement with him and he is deposing false and PW.1 denied the same as not true. In the further cross examination made on behalf of defendant Nos. 2 and 3, the 15

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

plaintiff had categorically admitted that in his chief examination affidavit he had not mentioned about his avocation and occupation. He admitted that he had not filed any proof to show that he got Rs.26,63,000/- with him to perform his part of contract. He deposed that he did not try to get Ex.A.1 registered even though the part of sale consideration was very huge. He admitted that he did not specifically mention the date on which he requested the defendant No.1 to come forward for execution of regular sale deed in pursuance of Ex.A.1. He deposed that on 07-09-2014 he came to know that DI was going to sell the schedule property. Thereafter he got issued a notice under Ex.A.2. He deposed that he did not issued any notice to the S.R.O. Machilipatnam requesting not to entertain any registration vis- a-vis Ex.A.1 schedule property. He admitted that by the date of issuing paper publication the schedule property was sold and registered in favour of

D.2 and D.3. He further admitted that it took eight months time from the date of execution of Ex.A.1 i.e., on 21-09-2013 for issuing a legal notice covered under Ex.A2. There is no reason for waiting for such eight months time to issue notice to D.1. He admitted that he did not mention in his chief affidavit that D2 and D.3 having known about Ex.A.1 in between him and

D1 entered in to sale transaction with D.2 and D.3. The rest of the cross examination is nothing but suggestions to the effect that D2 and D.3 do not have idea about execution of Ex.A.1 in between him and D.1 that he did not have the alleged balance sale consideration with him by the time of issuing

Ex.A2 or any other date subsequent to it and that Ex.A.1 was a false and fabricated document and that falsely obtained the thumb impressions of D.1 on empty stamp papers and that D2 and D.3 are bonafide purchasers of the schedule property and that he failed to prove his readiness and willingness to perform his part of contract and that he did not deposit the balance sale consideration in to the court at the time of institution of the suit and that he is not entitled for any relief let alone the relief of Specific Performance of

Ex.A.1 and PW.1 denied the same as not true.

16

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

d) The plaintiff examined one Kommuri Rama Koteswara Rao Naidu,

S/o. Koteswara Rao as PW.2. PW.2 in his chief examination which was taken in the form of solemn sworn affidavit, in support of the case of the plaintiff, had deposed that he knows the Plaintiff/Aggala Durga Prasad and the Defendant No.1/Peddi Subha Anjaneyulu and others. He was called by the Plaintiff Durga Prasad, stating that he wants to purchase the plaint schedule property and requested to come to him to attest a document. As per the instructions of the Plaintiff and the Defendant, the Scribe, Ede

Amaleswara Rao scribed the Non-possessory Agreement of Sale on 21-09- 2013. As per the Agreement, the total sale consideration is Rs.47,85,000/- for the total extent of Acs.4.35 Cents i.e., Rs.11,00,000/- per Acre. He deposed that on that day, the Plaintiff paid an amount of Rs.21,22,000/-to the 1st defendant towards advance and the balance amount of

Rs.26,63,000/- has to be paid by the Plaintiff to the 1st Defendant within 90 days from the date of Agreement i.e., 20-12-2013; that if the Plaintiff falls to pay the balance amount on or before that date, the Plaintiff has to pay interest at the rate of 12% per annum on the balance amount from the next date of the Agreement i.e., 21-12-2013 itself. After reading over the contents of the document by the Scribe, the 1st defendant Subha

Anjaneyuiu Put thumb Mark on the document, by receiving the amount of

Rs.21,22,000/- from the Plaintiff towards advance. Thereafter, he attested the document as first Attestor. Later, one J.N.S.S. Chaluvathi attested the document as second Attestor. After that, the Scribe Ede Amaleswara Rao signed at scribe at the relevant coloumn. He deposed that the entire transaction of scribing the document, payment of advance amount to the 1st defendant by the plaintiff thumb mark of the defendant No.1 on the document and attestation of the document by him and the second Attestor and signing of the Scribe on the document were done in all their presence on the date of the document i.e., 21-09-2013. As the Plaintiff requested him to give evidence, he giving the evidence. In the cross examination he 17

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

deposed that on earlier occasions he never acted as witness for any document on behalf of plaintiff. He deposed that Ex.A.1 was prepared in the house of Subha Anjaneyulu/D.1. The document writer prepared a rough of

ExA.1 and the rough copy of Ex A.1 was with the document writer. He admitted Ex.A.1 does not reflect about preparation of rough of Ex. A.1. He deposed that he had verified the link document relating to the plaint schedule property Plaintiff purchased stamp papers for preparation of

Ex.A.1 in Sub-Registrar Office. He further deposed that half an hour after preparation of Ex.A.1 by the document writer, he signed as witness on

Ex.A.1. He further deposed that he did not write the date of his signature on

Ex.A.1 beneath his signatures. He has not received summons from the court and he is deposing at the request of plaintiff. The rest of the cross examination is nothing but suggestion to the effect that Ex.A.1 was never prepared in his presence and that he is deposing false at the behest of plaintiff and that the averments of Ex.A.1 are all false and PW.2 denied the same as not true. In the cross examination made on behalf of defendant

Nos. 2 and 3, he deposed that initially the suit was instituted against DI only but after plaintiff came to know about purchase of the property by purchasers from D.1 they were also impleaded as D2 and D3. He knows plaintiff for about ten years. He does not know D2 and D.3 and their details.

The rest of the cross examination is nothing but suggestion to the effect that he never witnessed Ex.A.1 transaction and that he is deposing false at the request of plaintiff as he is his close associate and that with an intention to cause wrongful damage to D.2 and D.3 and they were impleaded as parties and PW.2 denied the same as not true.

(e) The present suit being filed for Specific Performance of contract and on the pleaded facts of both parties, it is just and proper to refer the evidence adduced on behalf of the defendants before scrutinizing the evidence adduced by plaintiffs. As referred supra, the defendant No.2 was 18

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

examined himself as D.W.1. D.W.1 in his chief examination, which was taken in the form of solemn sworn affidavit had reiterated his pleaded case and transcribed the same into direct evidence. DW.1 in his cross examination he deposed that he studied upto 10th Class and working as a private employee. He deposed that defendant No.1 is neither his relative nor his friend. He does not know A. Durga Prasad/PW1 herein and why

PW1 filed the present suit against the defendant No.1. He deposed that he did not go through the documents filed in this suit hence, he does not know the contents of them. He deposed that he purchased the suit schedule property from defendant No.1. The learned counsel for plaintiffs shown

Ex.A6 to the witness and he confronted that he purchased the property under the said document/Ex.A6. Defendant No.1 put his thumb impression on Ex.A6. He deposed that he sold the property covered under Ex.A6 to one Puspha Hass. He knows the contents of Ex.A6. He did not give any amount to Defendant No. 1 after he sold the property covered under Ex.A6.

After deposing so, witness volunteered that he has already given the entire amount to Defendant No.1 while executing Ex.A6 itself. He admitted that the Ex.A6 was executed for G.P.A., but not a sale deed. He does not know whether the present suit was already filed by issuing notice to Defendant

No. 1 prior to the date of execution of Ex.A6 dated 10.09.2014 and that a public notice was issued after the date of execution of Ex.A6. He deposed that he came to know about the present suit only after receiving the summons from this Court. He does not know about Ex.Al/agreement of sale. He does not know about the financial status of Plaintiff No.1 and about his avocation and that Sri Sai Vardhini Promoters and Developers at Chitti

Guduru belong to Plaintiff No. 1 and he also does not know that the plaintiff

No. 1 is running a business under name and style of Port City Real Estate at Machilipatnam. The rest of the cross examination is nothing but suggestions to the effect that the Defendant No.2 and he knows about the issuance of public notice dated 07.10.2014 in Krishna District Edition, 19

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Eenadu Daily News paper and that the Defendant No.1 sold the suit schedule property to the plaintiff No.1 in the year 2013 under Ex.A1 and that he and defendant No. 1 and 2 knowing the same created Ex.A5 and A6 in collusion with each other and that the defendant No.1 to 3 including him created Ex.A5 and A6 though they aware that the Defendant No.1 already sold the property to plaintiff No. 1 and pendency of present suit and that he did not purchase the suit schedule property from Defendant No.1 and that

Ex.A5 and A6 are created and that therefore the Ex.A5 and A6 which are not binding on the plaintiff and that as they are not legally valid documents.

DW1 is recalled as per orders in IA.No. 199/2024 in O.S.No.41/2014 dated.

18.07.2024, present and sworn in for further examination and in the further cross examination he deposed that he and Defendant No.2 together sold away the suit schedule property to Gudimella Pushpahasan. They did not sell the property to Tirumala Gudimella Srinivas. He deposed that he has given evidence before this Court on 06.07.2023. He does not know whether

Gudimella Pushpahasan sold away the property to Keerthi Srinivasa

Solutions Private Limited. He deposed that Balaji purchased the property from Gudimella Pushpahasan and he does not know whether Balaji sold away the property or not. He admitted that all the transactions by Gudimella

Pushpahasan and Balaji are prior to his evidence on 06.07.2023. He knows about all these transactions by the time he gave evidence before this Court on 06.07.2023. He deposed that Defendant No. 1 never disclosed him about when and to whom he sold away the property. The rest of the cross examination is nothing but suggestion to the effect that he knows about

Ex.A.1 suit agreement and the transaction thereon, but intentionally deposing false by creating the documents referred in Ex.A.1 and A6 along with defendant Nos. 1 to 3 and that he is not bonafide purchaser of defendants and that Ex.A.5 and A6 are collusive documents and DW.1 denied the same as not true.

20

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

(f) In order to prove their contention that defendant Nos. 2 and 3 are the bonafide purchases, they examined K.Jagan Mohan Rao, Sub Registrar,

Machilipatnam as DW.2. DW.2 has given evidence on behalf of defendants on receipt of witness summons vide orders dt. 28.11.2024 passed in

I.A.252/2024 in O.S.41/2014. In his chief examination he deposed he has been working as Sub Registrar, Machilipatnam since 04.06.2023. He brought attested copies of registered sale deeds vide Doc. Nos. 9407/2014, 9408/2014, dated 31.12.2014 and registered sale deed vide Doc. No.

8901/2021, dated 27.10.2021 registered in their Sub Registrar's Office at

Machilipatnam. The attested copy of registered sale deed vide Doc. No.

9407/2014, dated 31.12.2014 of SRO Machilipatnam was marked as

Ex.X.1. The attested copy of registered sale deed vide Doc. No. 9408/2014,

dated 31.12.2014 of SRO Machilipatnam was marked as Ex.X.2. The

attested copy of registered sale deed vide Doc. No. 8901/2021, dated 27 10.2021 of SRO Machilipatnam was marked as Ex.X3. He deposed that

Ex.X1 dated 31.12.2014 was executed by Peddi Subha Anjaneyulu represented by General Power of Attorney Holder Pamarthi Manga Rao in favour of Srimath Tirumala Gudimella Pushpahas, S/o Srimath Tirumala

Gudimella Varadacharyulu. Ex.X2 dated 31.12.2014 was executed by

Peddi Subha Anjaneyulu represented by General Power of Attorney Holder

Thota Ranga Arjuna Rao in favour of Srimath Tirumala Gudimella

Pushpahas, S/o Srimath Tirumala Gudimella Varadacharyulu. Ex.X3 dated 27.10.2021 was executed by Srimath Tirumala Gudimella Pushpahas, S/o

Srimath Tirumala Gudimella Varadacharyulu in favour of Keerthi Srinivasa

Solutions Private Limited. In the cross examination he admitted that Ex.X1 and X2 are executed through General Power of Attorney Holder basing on the General Power of Attornies given by Subha Anjaneyulu in favour of

Pamarthi Manga Rao and Thota Ranga Arjuna Rao respectively. He deposed that before registering a document through General Power of

Attorney Holder, they have to verify the live particulars of the executants of 21

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

General Power of Attorney. He deposed that in general practice they are accepting affidavit of the executants of General Power of Attorney or the live particulars given in documents itself will be accepted. He admitted that there is no mention of live particulars of executants of General Power of

Attorney Holder in Ex.X1 and X2 and so also affidavits are not enclosed to

Ex.X1 and X2 showing that executants of General Power of Attorney referred in Ex.X1 and X2 is alive as on the date of execution of Ex.X1 and

X2. He admitted that the property covered under Ex.X1 and X2 falls in

R.S.No. 73/1 of Mekavanipalem village. He admitted that Ex.X3 includes attested copy of notarized affidavit given by Srimath Tirumala Gudimella

Pushpahasan, S/o Varadacharyulu stating that the originals of Ex.X1 and

X2 are lost during transit and a case was lodged with the police under

Section 199, 200 of Indian Penal Code. He further deposed that Ex.X3 also contains attested copy of certificate issued by SHO, Chilakalapudi Police

Station certifying the reasons for missing/lost of originals of Ex.X1 and X2.

He admitted that in the attested copy of notarized affidavit in does not show the Ex.X3 date of missing of originals of Ex.X1 and X2, so also there is no mention in the affidavit that a paper publication was issued about missing of originals referred as falls in R.S.No. 73-1-A of Mekavanipalem village. He further admitted that Survery Certificate is not produced at the time of execution of Ex.X3 to show that R.S.No.73/1 is reallotted with R.S.No.73-1-

A under Sub Division of R. S.No. 73/1 of Mekavanipalem village. The parties to Ex X1 to X3 do not disclose to the Sub Registrar that a general notice was issued in Eenadu Daily News paper that a suit is pending before

Principal District Court, Krishna at Machilipatnam in respect of Schedule

Property referred in Ex.X.1 to X3. He deposed that he cannot say whether

Ex.X.1 to X3 are collusive documents or not. The rest of the cross examination is nothing but suggestions to the effect that they have not gone through the original of Ex .X1 and X2 before registering Ex.X3 and DW.2 denied the same as not true.

22

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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(g) On a combined reading of the testimonies of P.W.1 and P.W.2,

D.W.1 and 2 and the documentary evidence Ex.A.1 to Ex.A.6 and Ex.X.1 to

Ex.X.3 would show that there is no dispute that originally the Schedule

Property is a dry land in an extent of Ac.4.35 cents in RS No. 73/1 situated at Mekavaripalem, Bandar Mandal and the same was purchased by the defendant with his self earnings from one Penumaka Amma Rao on 10.08.2005 under registered sale deed vide doc. No. 3315/2005 of

Machilipatnam SRO and since then the defendant is in possession and enjoyment of the Schedule Property with absolute right, title possession and enjoyment and interest over the Schedule Property. It is the contention of the plaintiff that the defendant No.1 offered to sell the Plaint Schedule

Property to the plaintiff No.1 for a total sale consideration of Rs.47,85,000/- for total extent of Ac.4.35 cents i.e., Rs.11,00,000/- per acre. It is the further contention of the plaintiff that on the date of execution of Ex.A.1, Agreement of Sale the plaintiff No.1 had paid an amount of Rs.21,22,000/- to the defendant No.1 as advance sale consideration. P.W.2 is acted as 2nd attestor i.e., witness to Ex.A.1 Agreement of Sale. P.W.2 on behalf of plaintiff had deposed that he was called by the plaintiff Durga Prasad stating that as per the instructions of the plaintiff and defendants the scribe,

Ede Amaleswara Rao scribed the Non-possessory Agreement of sale on 21.09.2013. As per the Agreement, the total sale consideration is

Rs.47,85,000/-for the total extent of Acs.04-35 Cents i.e., Rs.11,00,000/- per Acre. He deposed that on that day, the Plaintiff paid an amount of Rs.21,22,000/-to the 1st defendant towards advance and the balance amount of Rs.26,63,000/- has to be paid by the Plaintiff to the 1st

Defendant within 90 days from the date of Agreement i.e., 20-12-2013 and further there is a clause that if the Plaintiff falls to pay the balance amount on or before that date, the Plaintiff has to pay interest at the rate of 12% per annum on the balance amount from the next date of the Agreement i.e., 21- 12-2013 itself. After reading over the contents of the document by the 23

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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Scribe, the 1st defendant Subha Anjaneyuiu put thumb Mak on the document, by receiving the amount of Rs.21,22,000/- from the Plaintiff towards advance. Thereafter, he attested the document as first Attestor.

Later, one J.N.S.S. Chaluvathi attested the document as second Attestor.

After that, the Scribe Ede Amaleswara Rao signed at Scribe at the relevant coloumn. He deposed that the entire transaction of scribing the document, payment of advance amount to the thumb mark 1st defendant by the

Plaintiff, put of the 1st defendant on the document and attestation of the document by him and the second Attestor and signing of the Scribe on the document were done in all their presence on the date of the document i.e., 21-09-2013. As referred supra, the recitals of Ex.A.1 would show that both plaintiff No.1 and defendant No.2 agreed to perform the remaining part of agreement within 90 days either by way of paying the amount to PW.1, which was received by the defendant from the plaintiff No.1 towards advance sale amount or by any other mode and time fixed for getting registered the regular Sale Deed is 20.01.2007. The plaintiff No.1 herein being vendee shall pay the balance sale consideration of Rs.26,63,000/- to the defendant No.1 and get execute a Registered Sale Deed in his name.

From the above, it clearly shows that both parties had agreed to execute the regular Registered Sale Deed and fixed time for execution of regular

Registered Sale Deed. Therefore, from the recitals of Ex.A.1 it is clear that the parties had fixed time for completion of agreement of sale that was executed under Ex.A.1. In other words, as per the recitals of Ex.A.1, time is essence of contract of Ex.A.1. The evidence of P.W.1 and P.W.2 and the contents of written statement of defendant No.1 would support the recitals made in Ex.A.1. Their testimony clearly shows that the plaintiff No.1 and defendant No.1 fixed the time for performance and completion of contract as within 90 days from the date agreement of sale. As per the recitals of

Ex.A.1, it is the plaintiff No.1 who has to first perform their part of contract by way of showing his readiness with cash of Rs.26,63,000/- to pay the 24

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

same to the defendant No.1 and the same would determine that they are ready with balance sale consideration of Rs. 26,63,000/- as part of performance of contract as per agreed terms and conditions under Ex.A.1.

If the plaintiff No.1 shows his readiness as referred supra, then performance part of defendant No.1 would start.

(h) With this backdrop of factual and proved facts, now it is to determine whether the agreement of sale under Ex.A.1 is valid and binding on the parties. Similarly, it is an established fact that time is essence of contract under Ex.A.1. When that is so, the plaintiffs have to show their readiness and willingness to perform their part of contract within said stipulated period of time. As referred supra, the performance of part of contract by defendants would arise only when the plaintiffs come forward with their readiness to pay the balance sale consideration of Rs.26,63,000/- within stipulated period as agreed under Ex.A.1 Agreement. The plaintiffs in their pleadings stated that the time stipulated in the agreement was 20.12.2013 and that if plaintiff No.1 fails to pay the balance amount on or before that date, the plaintiff No.1 has to pay interest at the rate of 12% per annum on the balance amount from the next date of agreement i..e, 21.12.2013 itself.

PW.1 in his evidence had categorically stated that he had no documentary proof to show that he paid Rs.21,22,0000/- to defendant No.1 as on the date of alleged Ex.A.1 either by way of bank statement or any recorded proof. he also deposed that he had not filed any documentary proof to show that he had Rs. 26,63,000/- which is the remaining sale consideration to be paid to defendant No.1 to show his readiness and willingness and that itself shows that the plaintiffs are not ready to give the balance sale consideration at any point of time and that though time is stipulated in the contract it was never treated as essence of the contract. The above referred evidence of

P.W.1, P.W.2 and so also DW.1 and the very document i.e., Non- possessory Agreement of Sale under Ex.A.1, would clearly establishes that 25

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

time is essence of contract of Ex.A.1. It was specifically mentioned in

Ex.A.1 that by 20.12.2013 i.e., within 90 days from the execution of Ex.A.1 agreement of sale and the plaintiffs should get ready with balance sale consideration of Rs. 26,63,000/- and get registered sale deed from defendant No.1 by paying the said amount to her. The recitals of Ex.A.1 would clearly show that the plaintiff No.1 has to pay the balance sale consideration and get the regular registered sale deed from the defendant

No.1. Therefore, the stand taken by the defendants that though time is stipulated in the said agreement it was never treated as an essence of the contract is against the recitals of the very contract under Ex.A.1. Thus, the testimony of P.W.1 itself clearly establishes that the plaintiff No.1 and defendant No.1 entered into Ex.A.1 Non-Possessory Agreement of Sale by fixing a specific time for its performance and it is valid and binding on the plaintiffs and defendant No.1.

(i) The very contention of the defendant No.1 is that he never executed any agreement of sale in favour of the plaintiff No.1 and plaintiff

No.1 never offered the balance of consideration of Rs.26,63,000/- to the plaintiff. The plaintiff No.1 by examining himself and by examining 2nd attestor to Ex.A.1 and scribe of Ex.A1 as PW.2 could prove that the defendant No. 1 put his signatures on Ex.A.1 and later the PW.2 put his signature as 1st attestor on Ex.A.1. The evidence of PWs.1 and 2 about execution of Ex.A.1 is in corroboration of plaintiff as PW.1 in his evidence has deposed that Ex.A.1 was prepared in the house of defendant No.1.

PW. 2 had categorically deposed before the court and even emphasized about the execution of Ex.A.1 in the house of defendant No.1. It is obvious that the person who denies the fact will not admit even if a question is posed to him. When the defendant No.1 is vehemently contended that the signature on Ex.A.1 is not of him, obviously he would deny the said fact even if the document is shown to him. As per Sec. 73 of the Indian 26

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Evidence Act, the court can compare the signatures available on other documents to come a conclusion and to give finding about the genuiness of the said document. Invoking the above section vested on the court under

Sec.73 of Evidence Act when this court carefully perused the signature on

Ex.A.1 with the signatures of the defendant No.1 herein made on

Vakalathnama, chief examination affidavit and the signature put by him

before the court on his cross examination, it clearly shows that the

signature on Ex.A.1 is put by defendant No. 1 herein. When we compared the signatures on Ex.A.1 and the admitted signatures of defendant No. 1 on the documents before this court, it clearly shows that the signature on

Ex.A.1 is tallying with the admitted signatures put by the defendant No.1

before this court. Therefore, in view of the above discussion coupled with

the reasons stated supra, the plaintiff could establish that Ex.A.1 non possessory agreement of sale was executed defendant No. 1 on 21.09.2013 at the house of the defendant No.1 and he both put his signature infront of PW. 1 and then the PW.2 put his signature as 1st attestor to Ex.A.1. The contents of Ex.A.1 i.e., terms and conditions mentioned therein are scribed by one Ede Malleswara Rao after the defendant No. 1 and plaintiff No.1 come with a conclusion as referred in

Ex.A.1 that means, the defendant No. 1 agreed to sell the plaint schedule property herein i.e., the schedule property of Ex.A.1 to the plaintiff No.1 for an amount of Rs.11,00,000/- per acre in total Rs.47,85,000/- and by receiving Rs.21,22,000/- as advance payment. When the contents of

Ex.A.1 are proved to be made to the understanding of plaintiff and defendant No. 1 and herein, it shows that the sale transaction agreed under

Ex.A.1 should be completed within 90 days from the date of execution of

Ex.A.1 i.e., 21.09.2013.

(j) Coming to the payment of Rs. 21,22,000/- by plaintiff No.1 to defendant No. 1 towards part of sale consideration on 21.09.2013 at the 27

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

time of execution of Ex.A.1 is concerned, the plaintiff as PW.1 deposed that he paid Rs. 21,22,000/- to the defendant No. 1 towards advance sale consideration out of sale consideration of Rs.47,85,000/- and he paid the said amount at the time of execution of Ex.A.1. PW.1 deposed that he paid an amount of Rs.21.22.000/- in cash to the defendant No. 1 towards advance and at that time the defendant No.1. The defendant No.1 had received the said amount from him. The defendant No.1 did not choose to give a specific suggestion to PW.1 that he did not pay Rs.21,22,000/- to the defendant No.1 and that the defendant No. 1 did not receive the said amount from him towards advance sale consideration for purchasing of plaint schedule property herein. The PW.2 had categorically deposed that the plaintiff paid an amount of Rs.21,22,000/- as earnest money to the defendant No. 1 on 21.09.2013 at the time of execution of Ex.A.1. The defendants did not give a specific suggestion even to this witness also that the plaintiff did not pay an amount of Rs.21,22,000/- towards advance sale consideration to defendant No. 1 and what PW.2 deposed is false. So, from the evidence of PWs. 1 and 2 it clearly establishes that the plaintiff paid an amount of Rs.21,22,000/- to the defendant No. 1 in the presence of

PW. 2 towards advance sale consideration from out of agreed total sale consideration of Rs.47,85,000/- on 21.09.2013.

(k) Coming to the aspect of ready and willing of plaintiff to perform his part of contract, it is to be seen whether the plaintiff expressed his ready and willingness in performing his part of contract. The burden is on the plaintiffs to prove whether they are ready and willing to perform their part of contract. In order to obtain a decree for specific performance, the plaintiff must aver and prove that he has performed his part of the contract and has always been ready and willing to perform the terms of the contract which are to be performed by him. Section 16(c) of the Specific Relief Act mandates ‘readiness and willingness’ of the plaintiff to be averred and 28

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

proved and it is a condition precedent to obtain the relief of specific performance. As per the recital in the agreement, the plaintiff would come forward to fulfill the terms and conditions of the agreement. It is the contention of the plaintiff No.1 that as per the terms of the agreement of sale, he shall pay the balance amount of sale consideration of

Rs.26,63,000/- to the defendant No.1 within 90 days from the date of agreement of sale and shall get the suit property registered in his favour or on his behalf at his cost. He is always ready and willing to perform his part of contract and he is ready to pay balance amount of sale consideration and get the property registered in his favour at his cost. On the other hand pleadings and evidence of plaintiff No.1 is silent on steps taken by the plaintiff No.1 as expected of a reasonable person which has not been taken in the instant case namely the plaintiff has not produced any evidence either oral or documentary to establish that there was any demand made by him for the balance amount which he had to pay. No witnesses have been examined on behalf of the plaintiffs to establish that at any point of time there has been demand made by the plaintiff No.1 with the defendant No.1 by calling upon him to receive the balance amount as agreed under the agreement of sale Ex.A1. It is for the first time after a period of 8 months from the date of agreement Ex.A.1 namely on 21.08.2014 legal notice (Ex.A2) was got issued or in other words plaintiff was silent for a period of 8 months in enforcing of the agreement of sale. A perusal of Ex.A.1 it would show that the terms of the agreement under Ex.A.1 is within 90 days the plaintiff has to pay the balance amount i.e, on 20.12.2013 and if he fails to pay the balance on or before 20.12.2013, from the next day onwards i.e, from 21.12.2013 he has to pay interest at 12% per annum on the balance amount. The plaintiff got issued a legal notice on 21.08.2014 vide Ex.A.2 expressing his readiness to go ahead with the transaction and calling upon the vendors to execute the sale deed. That means nearly for 8 months after the expiry of 90 days period. The plaintiff vendee did nothing to act in 29

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

furtherance of the agreement. Excepting a bald and vague assertion that he was contacting the vendors but they were dodging nothing more is brought on record to satisfy the court that the plaintiff was at all material times interested. As rightly pointed argued by the learned counsel for the defendant, the plaintiff has not produced any satisfactory evidence to prove his readiness and willingness. As regards ‘willingness’ of the plaintiff to perform his part of the contract, the conduct of the plaintiff warranting the performance has to be looked into. The following conduct of the plaintiff warrants consideration:

a. Plaintiff got issued legal notice nearly after 8 months after the expiry of 90 days period as prescribed in the agreement.

b. Plaintiff has not brought anything on record to prove that he contacted the Defendant No.1 after the expiry of 90 days period and was interested in finalising the deed.

c. There was total inaction of the Plaintiff from 20.12.2013 (expiry of one year period) to 21.08.2014 (Date of issuance of legal notice) d. Suit was filed on 26.08.2014 i.e. after a period of 8 months from the date of expiry of agreement period. Said delay has not been sufficiently explained by the Plaintiff.

The continuous readiness and willingness is a condition precedent to grant the relief of specific performance. Hence, it is clearly establishes that plaintiff No.1 has not sufficiently explained and proved that he was always ready and willing to perform his part of the contract. The learned counsel for defendants argued that it is for the plaintiffs to prove their readiness and willingness to perform their obligations under alleged agreement and where the certain amount has been paid in balance and the balance has required to pay within a stipulated time, it is for the plaintiff to show that he was in 30

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

possession to pay the balance amount. On this, he relied on a decision made in a case of U.N.Krishnamurthy (since deceased) thr. Lrs vs A.M.

Krishnamurthy, before the Hon’ble Supreme Court vide judgment dt.

12.07.2022 reported in Civil Appeal No. 4703 OF 2022 [ARISING OUT OF

SLP (C) NO. 19463 of 2018] wherein the Hon’ble Supreme Court had held that:

“It is settled law that for relief of specific performance, the

Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.

47. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiff’s balance sheet that he did not have sufficient funds to discharge his part of contract in

March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiff’s readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth

Dhondiba Chavan (supra) where this Court speaking through

Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and 31

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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willing to perform his part of contract. Deposit in court would not establish Plaintiff’s readiness and willingness within meaning of section 16(c) of Specific Relief Act. The relevant part of the judgment is reproduced below: - “45. Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16(c) of the Specific Relief Act.”

48. It is, therefore, patently clear that the Respondent Plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of specific performance. This Court finds that the Respondent Plaintiff was not entitled to the relief of specific performance.

49. The Respondent Plaintiff may have been willing to perform his part of contract. It however appears that he was not ready with funds. He was possibly trying to buy time to discharge his part of contract.

50. In Bhavyanath v. K.V. Balan cited by Mr. Raju to contend that the Respondent Plaintiff was entitled to relief of specific performance and the courts had rightly granted such relief, the

Plaintiff had filed the suit for specific performance three days after the last day for execution of the sale deed. In this case however, the Respondent Plaintiff waited for nearly 3 years and filed the suit for specific performance just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V. Balan (supra) the Plaintiff had adduced cogent evidence to prove his 32

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the

Respondent Plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to enable him to discharge his part of contract. Therefore,

Bhavyanath v. K.V. Balan (supra) is of no assistance to the

Respondent Plaintiff.

51. In view of foregoing, this Court is of the considered opinion that the Respondent Plaintiff was not entitled to the relief of specific performance. The Trial Court and the High Court erred both in law and on facts in granting such relief.

It is also pertinent to note here that the plaintiff though filed the present suit within a span of one year from the date of execution of Ex.A.1 agreement to sell, did not choose to request the defendant No.1 in writing either by way of issuing a letter or notice or legal notice to the defendant calling upon him to perform his part of contract, as the plaintiff is ready with balance of consideration of Rs.26,63,000/- with him as agreed in Ex.A.1 agreement to sell dt. 21.09.2013. The pleadings and evidence put-forth by the plaintiff clearly establishes that the plaintiff did not perform his part of contract as per the terms and conditions agreed upon by him under Ex.A.1 agreement to sell dt. 21.09.2013. It is also pertinent to note here that the plaintiff No.1 not even filed any document to show that he is ready with cash of

Rs.26,63,000/- with him as on the date of filing of the present suit as required in terms of agreement to sell dt. 21.09.2013. It is a settled principle of Law as held by the Hon’ble Apex Court in a decision made in a case of

Kamal Kumar Vs. Premlata Joshi and others [2019 (1) ALT 30 (SC)]

where the Hon’ble Apex Court had held that it is a settled principle of Law 33

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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that the grant of relief of specific performance is a discretionary and equitable relief and the plaintiff must fulfill material questions as held by the

Hon’ble Apex Court as under :

“10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief.

The material questions, which are required to be gone into for grant of the relief of specific performance, are first, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.”

When there is a specific clause in the agreement of sale Ex.A.1 that if the plaintiff failed to perform his part of contract, then he is not entitled for specific performance of contract in his favour. The Hon’ble Apex Court in a case of Bal Krishna and another Vs. Bhagwan Das (Dead) & others [2008 Supreme (SC) 522], regarding readiness and willingness of the plaintiff, had held as under :

34

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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“8. ……….. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaintiff. The plaintiffs readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the Court. It is also settled by various decisions of this

Court that by virtue of section 20 of the Act, the relief for specific performance lies in the discretion of the Court and the Court is not bound to grant such relief merely because it is lawful to do so. …………. In other words, the courts discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void.

17. We have already recorded a finding that the document

Ex.P1 dated 19.7.1952 was not executed by the defendant in favour of the plaintiffs. The document Ex.P1 dated 21.7.1952, which has been executed after the sale deed

dated 19.7.1952, was executed by the defendant for

reconveying the property in favour of the plaintiffs. That document indicates that the consideration for the reconveyance would be Rs.25,000/-. The plaintiffs case throughout in the plaint as well as in the evidence was that they were and are ready and willing to purchase the suit house for the consideration of Rs.10,000/-. In the absence of pleadings or proof by the plaintiffs as to their willingness and readiness to perform their part of the contract and get the sale deed executed in their favour on payment of Rs.25,000/- 35

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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, no case is made out by the plaintiffs for specific performance of the contract of reconveyance.”

In another case of Vijay Kumar and others Vs. Om Prakash [2019(1)

ALD 67 (SC)] the Hon’ble Apex Court had held as under :

“7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff. In the case in hand, though the respondent/plaintiff has filed the suit for specific performance on 29 th April, 2008, the respondent/plaintiff has not shown his capacity to pay the balance sale consideration of

Rs.22,00,000/- . In his evidence, the respondent/plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the trial Court, the respondent/plaintiff could not produce any document to show that he had the amount of Rs.22,00,000/- with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Furthermore, as rightly pointed out by the trial Court, the respondent/plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the trial

Court that the respondent/plaintiff has not been able to prove his readiness and willingness on his part.

36

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

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8. The relief for specific performance is purely discretionary.

Though the respondent/plaintiff has alleged that he was ready and willing to perform his part of the contract, the first appellate Court ought to have examined first whether the respondent/plaintiff was able to show his capacity to pay the balance money. In our considered view, the first appellant

Court as well as the High Court has not properly appreciated the evidence and the conduct of the parties. The first appellant Court as well as the High Court, in our view, was not right in reversing the judgment of the trial Court and the impugned order cannot be sustained and liable to be set aside.”

Furthermore, the plaintiff No.1has to prove his readiness and willingness to pay the balance of consideration and he has to prove that he is having capacity (readiness) from the date of agreement till the date of decree. The conduct of the plaintiff in the suit about non issuance of legal notice and non production of his bank account statement etc., to show that he is having ready cash with him to pay the balance sale consideration of Rs.26,63,000/- from the date of execution of agreement to sell till the date of filing of the suit and thereafter also. It itself disentitles him from seeking any relief of specific performance. Mere fact that there is an agreement to sell will not entitle him to seek a decree. His conduct is an important factor for granting or refusing the discretional remedy of specific performance. In the present case, the plaintiff agreed to purchase the property for a total balance consideration of Rs.47,85,000/- and he paid Rs.21,22,000/- as advance and still he has to pay a huge amount of Rs.26,63,000/- to the defendant. Even though there is a recital in Ex.A.1 that if the defendant failed to perform his part of contract on or before 90 days i.e., 20.12.2013 from the next day onwards i.e., from 21.12.2013 he has to pay interest at 12% per annum on 37

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

the lance amount. But no wherein the suit it was elicited that the plaintiff paid any interest after completion of 90 days. The plaintiff did not show his readiness by way of proving his necessary financial capacity i.e. he is having Rs.26,63,000/- with him as on the date of filing of the suit and till date. It is a fact that the defendant No.1 though made his appearance by way of filing vakalat and written statement and but not choose to cross- examine the witnesses examined on behalf of plaintiff, it cannot be a ground to draw adverse inference. Mere expressing readiness would itself is not sufficient to fulfill the contract and the plaintiff has to establish that he is ready with balance sale consideration amount, to pay the same to defendant and to get execute a regular sale deed in his favour. In the absence of the same, it cannot be said that it is the defendant No.1 who breached the contract. From the pleadings and the evidence put-forth by the plaintiff, it clearly shows that the plaintiff himself breached the contract under Ex.A.1 and therefore, he is not entitled for specific performance of

Ex.A.1 in his favour and against the defendant. Therefore, in view of the detailed discussion coupled with the reasons stated supra, basing on the pleadings and evidence put-forth by the plaintiff, it cannot be said that the plaintiff No.1 is ready and willing to perform his part of contract and that the defendant failed to perform his part of contract as per the terms of agreement to sell dt.21.09.8/Ex.A.1. In other words, it follows that the plaintiff failed to prove his case and therefore, the plaintiff is not entitled for specific performance of agreement to sell dt.21.09.2013/Ex.A.1 in his favour and against the defendant. Points 1 to 3 and 5 are answered accordingly.

15. Point No.4 and 6:

(j) Now it is to determine whether the defendant Nos. 2 and 3 are the alleged bonafide purchasers of defendant No.1 or not? To prove the defendant Nos. 2 and 3 a bonafide purchasers under an agreement of sale 38

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

cum GPA, the defendants need to demonstrate that they acted in good faith, paid the agreed price, and had no prior knowledge of any adverse claims or encumbrances on the property. In order to their contention that they are the bonafide purchasers, the defendant No.2 himself examined as

DW.1. DW.1 in his evidence he stated that the defendant Nos. 2 and 3 are the G.P.A Holders of the 1st defendant and later they have put in possession and enjoyment of the plaint schedule property. They purchased the plaint schedule property under agreement of sale-cum-G.P.A and they are bonafide purchasers for a valuable consideration. The alleged paper publication is not known to them. They are the bonafide purchasers without any notice for a valuable consideration. Basing on the GPA issued by 1st defendant in favour of defendant Nos.2 and 3, dt 10.9.2014, the 2nd defendant has executed sale deed in favour of Tirumala Gudimella Pushpa on 31.12.2014 vide doc. No.9427/2014 under Ex.X1 for a valuable consideration of Rs.17,20,000/- and so far as 3rd defendant is concerned, he too executed sale deed in favour of the Tirumala Gudimella Srinivas on 31.8.2014 in respect of the plaint schedule property for a valuable consideration of Rs.16,00,000/- vide doc.No.9408/2014 under Ex.X.2, therefore both the defendants are already sold the property to one

Gudumella Srinivas, in turn the said Gudimella Srinivas sold the plaint schedule property to one Keerthi Srinivasa Solutions Pvt. Ltd., rep. by

Managing Director Kota Sri Ranga Satya Balaji for a valuable consideration of Rs.74,70,000/- on 21.10.2021 vide doc.No.8901/2021 and that right now the property stands in the name of Keerthi Srinivasa Solutions Pvt. Ltd. So, basing on the said sale deed, the said Keerthi Srinivasa Solutions Pvt. Ltd., applied for permission for conversion of the land from wet land into non- agricultural purpose, accordingly the RDO accorded sanction in proceedings No.RCF577/2022, dt.26.4.2022. Therefore at present the schedule property stands in the name of Keerthi Srinivasa Solutions Private

Limited. In the cross examination he deposed that he purchased the 39

Principal District Judge,

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property from defendant No.1 under Ex.A.6 document and defendant No.1 put his signature on Ex.A.1. The learned counsel for plaintiffs mainly submitted that the Subsequent Buyers were not bonafide purchasers without notice because they did not make sufficient enquiry with regard to the earlier transactions which had been entered into by the defendant No.1 with the plaintiff No.2. He further argued that if they are the Subsequent

Buyers they would have made detailed enquiry with regard to the records of the defendant No.1 but by not doing so, the Subsequent Buyers had shown gross negligence and therefore, it cannot be said that the Subsequent

Buyers were bonafide purchasers without any notice with regard to earlier transactions entered into between the defendant No.1 and the plaintiffs. He further contended that the burden of establishing the bonafides of the

Subsequent Buyers was on them and the said burden had not been discharged by them and therefore, the defendant Nos. 2 and 3 cannot be treated as bonafide purchasers. To substantiate their contention, the defendant Nos. 2 and 3 examined the Sub Registrar, Machilipatnam as

DW.2 and he produced the attested copies of the registered sale deeds vide doc Nos. 9407/2014, 9408/2014, dt. 31.12.2014 and doc. No.

8901/2021, dt. 27.10.2021 which are marked as Ex.X.1 to X3 respectively.

In his evidence, DW.2 deposed that Ex.X.1 dt. 31.12.2014 was executed by

Peddi Subha Anjaneyulu represented by General Power of Attorney Holder

Pamathi Manga Rao in favour of Srimath Tirumala Gudimella Pushpahas and Ex.X.2, dt. 31.12.2014 was executed by Peddi Subha Anjeneyulu, represented by GPA holder Thota Ranga Arjuna Rao in favour of srimath

Tirumala Gudimella Pushpahas and whereas Ex.X.3 dt. 27.10.2021 was executed by Srimath Tirumala Gudimella Pushpahas, in favour of Keethi

Srinivasa Solutions Private Limited. The first and foremost contention of the learned counsel for the plaintiffs is that defendant No.2 who was examined as DW1, admitted to the receipt of total sale consideration under

Agreement of Sale cum GPA document bearing No.9407 of 2014 dated 40

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

31.12.2014 and sold the same to them by defendant No.1, as such, defendant No.2 and 3 are the absolute owners and possessor and bonafide purchasers, thus, the Agreement of Sale - cum - GPA dated 31.12.2014 is valid document. It is further contended that the defendant No.2 and 3 are bonafide purchaser having purchased the properties under Ex.X1 and X.2 by paying considerable value without having any knowledge or notice of such alleged earlier agreement of sale, the defendant No.2 and 3 cannot be put to loss or injury. As seen from Ex.X1 and X2 i.e., sale deeds through which the defendant No.2 and 3 have purchased Ac.4.35 cents

R.S.No.73/1 for a sale consideration of Rs.17,20,000/-. Ex.X2 dated 31.12.2014 is the Agreement of Sale - cum - GPA through which defendant

No.1 authorized defendant No. 3 to alienate the suit schedule property to third parties. DW.1 further deposed in his evidence that he and defendant

No. 3 together sold away the suit Schedule Property to Gudimella

Pushpahasan. The learned counsel for the plaintiff argued that Section 52 of the Transfer of Property Act which lays down the principle of lis pendens that when a suit is pending during the pendency of such suit if a sale is made in favour of other person, then the principle of lis pendens would be attracted. Therefore, the question before us in this case is what is the effect of the lis pendency on the subsequent sale of the same property by the owner to the second purchaser. Section 19 of the Specific Relief Act clearly says subsequent sale can be enforced for good and sufficient reason but in the present case, there is no difficulty because the suit was filed on 26.08.2014 for specific performance of the agreement and the second sale took place on 31.12.2014. Therefore, it is the admitted position that the second sale was definitely after the filing of the suit in question.

Had that not been the position then we would have evaluated the effect of

Section Section 52 of the Transfer of Property Act. But in the present case it is more than apparent that the suit was filed before the sale of the property.

The learned counsel for the plaintiffs contended that the defendant No.1 41

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

did not enter into the witness box to prove his case. In legal terms, when a bonafide purchaser (a buyer who purchases property in good faith, for value, and without notice of any other claims or defects in the title) acquires property from a defendant, the purchaser essentially "steps into the shoes" of the defendant, meaning they inherit the defendant's rights and obligations regarding that property. The onus is on the purchaser to prove that they are a bona fide purchaser, meaning they must demonstrate they acted in good faith, paid value for the property, and had no notice of any prior claims or defects in the title. Regarding the burden of proof, the onus is on the purchaser to prove the good faith who takes the place that he is an innocent purchaser. Moreover, the pleadings as to bonafide purchase is very much necessary. The bonafide purchaser must plead and lead evidence that he is a bonafide purchaser. It is also a well-settled principle of law that not only the original vendor but also a subsequent purchaser would be entitled to raise a contention that the plaintiff was not ready and willing to perform his part of contract. A perusal of both Ex.X.1 and X2 sale deed the consideration has been paid by the defendant Nos. 2 and 3 to the defendant No.1. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers. No evidence was adduced by defendant Nos. 2 and 3 about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of execution of sale deed. Hence, the sale deeds will have to be held as void being executed without consideration. In fact, such a transaction made by defendant Nos. 2 and 3 of selling the suit properties on the basis of the power of attorney of the defendant No.1 is a sham transaction. As referred supra, the plaintiffs failed to establish that they had all along been ready and willing to perform their part of contract. When the plaintiffs themselves breached the contract and did not come forward to pay the balance sale consideration, then the contract which was executed between 42

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

both the parties is not in existence and there is no step on behalf of the plaintiffs within the stipulated period of time. Since, the contract that executed is not existence anymore the defendant Nos. 2 and 3 obviously become bonafide purchasers of the suit Schedule Property. In view of the above facts and circumstances, it establishes that the defendant Nos. 2 and 3 are bonafide purchasers and the defendant No.1 executed the registered sale deed in favour of defendant Nos. 2 and 3 is a valid document.

Accordingly issue Ns. 4 and 6 are answered in favour of defendants.

16. Issue No. 7:

(a) Coming to the alternative relief sought by the plaintiffs to direct the defendant No.1 for refund of the amount together with interest is concerned, the plaintiffs filed the present suit seeking specific performance of agreement of sale dated 21.09.2013 and to direct the defendant No.1 to execute a regular registered sale deed in their favour in the event he failed to do the same, the same may be ordered through Court of law and in alternative if the specific performance of contract i.e. agreement of sale under Ex.A1 is not permissible under law and facts, then in alternative direct the defendant No.1 to refund the advance amount together with interest. It is an undisputed fact that the defendant No.1 executed an agreement of sale dated 21.09.2013 in favour of the plaintiffs agreeing to sell the suit schedule property for total sale consideration of Rs.47,85,000/- and received Rs.21,22,000/- as advance sale consideration from the plaintiffs on the date of agreement itself i.e., 21.09.2013. It is agreed between the parties that the plaintiffs shall pay the balance sale consideration of Rs.26,63,000/- within 90 days i.e., 20.12.2013, if they failed to pay the same on or before 20.12.2013 from the next day onwards i.e., from 21.12.2013 the plaintiffs have to pay interest at 12% per annum on the balance amount. The pleadings and evidence put forth by the 43

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

plaintiffs would clearly shows that, the plaintiffs could not perform their part of contract within stipulated period of time as agreed under Ex.A.1. As per the terms of contract under Ex.A.1, there is no specific clause of either cancellation or forfeit of advance amount paid by the plaintiffs if they or she failed to perform part of contract. The specific clause that was incorporated in Ex.A.1/agreement of sale is that the plaintiffs should pay the balance sale consideration of Rs.26,63,000/- by 20.12.2013, if fails they have to pay interest from 20.12.2013. Therefore, there is no such specific clause with regard to forfeiture of the advance sale consideration that was paid by plaintiffs to the defendant. In the instant case, the plaintiff No.1 proved his case that he and the defendant No.1 entered into an agreement and he paid an amount of Rs.21,22,000/- towards advance sale consideration of the agreement, but the plaintiff failed to prove his readiness and willingness in performing the contract. Therefore, the plaintiffs are not entitled for relief of specific performance of contract in their favour and against the defendants. In a breach of contract, the general rule is that the advance deposited being part of the purchase price cannot be recovered alone. But it will have to be set of costs of any damages awarded to the innocent party.

In such case, the forfeiture clause will be treated as equivalent to penalty clause. In the case of earnest money, forfeiture alone is sustainable and it is not treated as penalty. But it will be treated as penalty when the payment is made in addition to forfeiture of earnest money. As per Section 22 of

Specific Relief Act when a breach of contract occurs, a person who comes for specific performance can ask for refund of earnest money or advance deposited. In case of forfeiture of earnest money, it is necessary to have a specific clause in the contract. A right to forfeiture is contractual right. A forfeiture clause is a penal in character and therefore the contracting parties must agree to stipulate terms in record to forfeiture in the contract itself. In the instant case, the terms mentioned in Ex.A.1 agreement of sale would not show that the plaintiffs and defendant agreed that in case of failure of 44

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

payment of balance of sale consideration of Rs.26,63,000/- within stipulated period of time, i.e. 20.12.2013, the advance amount shall be forfeited. In the present case, there is no such forfeiture clause in Ex.A.1 agreement of sale to forego the advance amount of Rs.26,63,000/- that was paid by the plaintiffs to the defendant. As held supra, in the present case, the plaintiff himself breached the agreement of sale under Ex.A.1. It is true that in a breach of contract the buyer has right to cancel the contract and to obtain the advance amount along with interest and compensation for any loss sustained. Similarly, if a buyer violates the terms of the contract or he has not complied his part of performance within the stipulated time framed, the seller has right to forfeit the advance or earnest money as terms of contract stipulate. The Hon’ble Supreme Court in a case of Kamal Kumar Vs.

Premlata Joshi and others reported in [2019 (1) ALT 30 (SC)] reaffirmed the following ingredients which must be present in the contract so as to enable the seller to forfeit earnest money.

(1) Whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; (2) Whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; (3) Whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; (4) Whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what 45

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

manner and the extent if such relief is eventually granted to the plaintiff; (5) Whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc.

and, if so, on what grounds.”

In the present case, admittedly, the amount of Rs.21,22,000/- was given by the plaintiffs to the defendant No.1 at the moment of execution of contract agreeing to pay the balance sale consideration within 90 days i.e., by 20.12.2013 and there is a clause what to do if the plaintiffs failed to come forward with the balance sale consideration as agreed under Ex.A.1.

However, the agreement itself is silent with regard to forfeiture of earnest money or with regard to damages or compensation or penalty etc hence, the defendant is entitle to return of the advance money i.e., earnest money.

Therefore, the defendant is entitled to return the advance amount of

Rs.21,22,000/- admittedly paid by the plaintiffs to him. Therefore, under these facts and circumstances, the plaintiffs are entitle for refund of

Rs.21,22,000/- from the defendant No.1.

(b) Coming to the aspect of interest on the refundable amount of

Rs.21,22,000/-, it is the plaintiffs who breached the contract and there is no fault on the part of defendant No.1 in not fulfilling the contract. As seen from the evidence of the defendants, the defendant No.1 even did not issue any legal notice prior to Ex.A.2 calling upon the plaintiffs to know their ready and willingness in executing regular registered sale deed by paying balance sale consideration. Therefore, under these facts and circumstances and discussion made supra, the plaintiffs are entitled for interest on the refundable amount. Hence, in view of the observations and findings made supra, the plaintiffs are entitled for refund of the amount of Rs.21,22,000/- that was paid by them to the defendant No.1 as advance amount with any 46

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

interest on it. Point No.7 is answered accordingly in favour of plaintiffs and against the defendant.

17. ISSUE No.8:-

IN THE RESULT, the Suit in O.S.41/2014 is disposed of directing the 1st defendant to refund the advance amount of Rs.21,22,000/- (Rupees twenty one lakhs twenty two thousand only) that was paid by the 1st plaintiff to him at the time of agreement of sale, dated 21.09.2013 along with subsequent interest at the rate of 6% per annum from the date of this judgment to till the date of realization within 3 (three) months from the date of this Judgment. The relief of Specific Performance of Agreement of Sale, dt.21.09.2013 is hereby rejected. Both parties do bear their own costs.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open Court on this the 21st day of March, 2025.

Principal District Judge,

Krishna, Machilipatnam.

Appendix of evidence

Witnesses examined

For Plaintiffs: For Defendants:

P.W.1: Aggala Durga Prasad D.W.1: Thota Ranga Arjuna Rao

P.W.2: Kommuri Rama Koteswara Rao DW.2: K.Jagan Mohan Rao, Sub Registrar, Machilipatnam.

Documents Marked

For Plaintiffs:

Ex.A.1: Agreement of sale,

Ex.A2 : Office copy of legal notice got issued to defendant No.1 on 21.08.2014,

Ex.A.3 : Postal receipt, dt. 21.08.2014, 47

Principal District Judge,

Original Suit No.41 of 2014, Krishna, Machilipatnam.

Dt:21.03.2025

Ex.A.4 : Refused legal notice of defendant No.1, dt. 22.08.2024,

Ex.A.5 : Registered GPA in favour of defendant No.2, dt. 10.09.2014,

Ex.A6 : Registered GPA in favour of defendant No.2, dt.10.09.2014,

For defendants:

Ex.X.1 : Attested copy of registered sale deed vide doc. No. 9407/2014,

dt. 31.12.2014 of SRO, Machilipatnam,

Ex.X.2 : Attested copy of registered sale deed, vide Doc. No. 9408/2014,

dt. 31.12.2014 of SRO, Machilipatnam

Ex.X3 : Attested copy of registered sale deed, vide Doc. No.8901/2021,

dt. 31.12.2014 of SRO, Machilipatnam

Principal District Judge,

Krishna, Machilipatnam.

1

Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

IN THE COURT OF THE SESSIONS JUDGE,

KRISHNA DIVISION, MACHILIPATNAM.

Present : Smt. Aruna Sarika,

Sessions Judge, Krishna,

Machilipatnam

Tuesday, this the 1st day of April, 2025

CRIMINAL APPEAL NO. 40/2024

From which Court the : The Special Judicial Magistrate of I Class appeal was preferred for trying P & E Offences, Machilipatnam

No. of the case in that Court : C.C.85/2021

No. of the appeal : Crl.A.40 of 2024

Name and description of : Emani Vijaya, W/o. Emani Santhosh the appellant/s. Kumar, aged 31 years, S/o. Kotti Durga Rao, R/o. Khalekhanpet, Machilipatnam. Name of description of the : 1. Emani Santhosh Kumar, S/o. respondent/s Nancharaiah, aged about 40 years, R/o.D.No. 11-9-98, Road No.1, Lakshmi Nagar Colony, Kothapet, Dilshukh Nagar, Hyderabad.

2. Emani Parvathi, W/o. Nancharaiah, aged 60 years, R/o.D.No. 11-9-98, Road No.1, Lakshmi Nagar Colony, Kothapet, Dilshukh Nagar, Hyderabad.

3. Emani Nancharaiah, S/o. Krishna Murthy, aged 67 years, R/o.D.No. 11-9-98, Road No.1, Lakshmi Nagar Colony, Kothapet, Dilshukh Nagar, Hyderabad. Section of Law, it was : In the result, the accused Nos. 1 to 3 are imposed by the trial Court. found not guilty for the charges under Sec.498-A of IPC and Section 3 and 4 of the Dowry Prohibition Act. Accordingly, they are acquitted for the above said 2

Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

charges under Section 248(1) of Cr.P.C., The bail bonds of accused Nos. 1 to 3 shall be in force for a period of six months from the date of judgment as per the provisions of Section 437 of Cr.P.C., No case property is produced in this case, as such no order is passed in this regard. Whether Confirmed, : CONFIRMED Reversed or Modified if Modified the modification

Dates of

PresentatioNotice Appearan Filing Hearing Judgment n ce 23.04.2024 23.04.2024 - - 28.03.2025 01.04.2025

This Criminal Appeal has been finally heard on 28.03.2025 in the presence of Sri.V.M.V.Krishna, Advocate for the appellant and of Sri.A.Satyanarayana, Advocate for respondent Nos. 1 to 3 and of Sri.L.Venkateswara Rao, Public Prosecutor for respondent No.4/State, and upon hearing both sides and having stood for consideration till this day, this court delivered the following:

J U D G M E N T

1. This Criminal Appeal No.40 of 2024 is filed by the appellant/Complainant against the judgment, dated 12.02.2024 passed by the Special Judicial Magistrate of I Class Trying for P & E Offences,

Machilipatnam in C.C.No.85/2021, acquitting the accused Nos. 1 to 3 for the offences punishable under Secs. 498-A r/w.34 of Indian Penal Code and Secs. 3 and 4 of Dowry Prohibition Act.

2. The parties are being referred to as complainant and accused as arrayed in C.C.No.85/2021 before the Trial Court for convenience and for clarity.

3

Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

3. The case of the complainant is as follows: “On 07-08-2016, the marriage of LW.1/Emani Vijaya was performed with A1 at Tirumala. At the time of her marriage, on the demand of accused, her parents gave an amount of Rs.7,00,000/- towards dowry besides presenting Ac.1-00 agricultural land apart from giving household articles worth of Rs.2,00,000/- and Rs. 2,00,000/- as Adapaduchu Lanchanam. After marriage, she joined

A1 and lead matrimonial life for a period of 2½ years. During their wed-lock, they were blessed with two daughters. A1 to A3 harassed her mentally and physically for additional dowry of Rs.25 lakhs, when her parents expressed their inability to pay additional dowry, at about 1½ year back the accused necked out her from their house, since then, she has been residing at her parent’s house at Kalekhanpet, Machilipatnam. But, frequently, A1 to A3 continued their harassment towards LW1/E.Vijaya by demanding additional dowry over phone, due to their harassment, she fell in ill-health and lost her hearing power. Basing on the report of LW.1/Emani Vijaya,

LW.9/T.Srinivasa Rao, Assistant Sub Inspector of Police, Mahila Police

Station registered a case in Cr.No.52/2020 for the offences u/Sec. 498-A of

I.P.C and Sections 3 & 4 of the Dowry Prohibition Act and he served notices u/Sec. 41(A) (i) Cr.P.C against Accused Nos.1 to 3. After completion of investigation, L.W.10/ N.Subba Rao, Sub Inspector of Police,

Mahila Police Station laid charge sheet against the Accused Nos.1 to 3, for the offences under Sec. 498-A IPC and Sec. 3 and 4 of Dowry Prohibition

Act.

4. The learned Special Judicial Magistrate of I Class Trying for P & E

Offences, Machilipatnam has taken cognizance of the complaint under

Sections 498-A r/w.34 of Indian Penal Code and Secs.3 and 4 of Dowry

Prohibition Act against the accused Nos.1 to 3.

4

Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

5. On appearance of accused Nos. 1 to 3 before the trial Court, copies of documents were furnished to them as required under Section 207

Cr.P.C., and the substance of accusation leveled against them under

Sections 498-A r/w.34 of Indian Penal Code and Sec. 3 and 4 of Dowry

Prohibition Act was orally explained to them in Telugu, for which, they denied the same, pleaded not guilty and claimed to be tried.

6. In order to bring home the guilt of accused Nos.1 to 3, the prosecution examined PWs.1 to 7 and marked Exs.P1 to P3. The prosecution has given up the examination of LW.7/Pothabathina

Sudhamani, LW.8/Yerpula Pramila and LW.10/ N.Subbarao, Sub Inspector of Police, Mahila Police Station.

7. After completion of prosecution evidence, accused Nos.1 to 3 were examined under Section 313 Cr.P.C. with regard to the material circumstances and incriminating evidence appearing against them, but they denied the same. No oral and documentary evidence is adduced on behalf of the accused Nos. 1 to 3.

8. The learned Public Prosecutor argued that the evidence of prosecution witnesses is consistent and corroborated with each other and it clinchingly proved and established that the accused harassed P.W.1 physically and mentally by demanding additional dowry from her parents and due to the harassment she lost her hearing power and the prosecution proved the guilt of the accused No. 1 to 3 beyond all reasonable doubt and prays to convict the accused No. 1 to 3.

5

Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

9. The learned counsel for accused argued that they never committed any offence and a false case was foisted against them and they never harassed P.W.1 and demanded additional dowry from her parents at any point of time and P.W.1 presented a false report against them and the evidence of all prosecution witnesses are related witnesses and their evidence is also inconsistent and not corroborated with each other and there are several exaggerations and improvements in their evidence which creates a serious doubt over the evidence and prosecution failed to prove its case beyond all reasonable doubt and prays to acquit the accused.

10. On hearing the arguments of both sides and on considering the material on record, the learned Special Judicial Magistrate of I Class Trying for P & E Offences, Machilipatnam came to conclusion that the accused

Nos. 1 to 3 are found not guilty for the offences punishable under Sections 498-A r/w.34 of Indian Penal Code and Sec.3 and 4 of Dowry Prohibition

Act and they are acquitted under Section 248(1) of Code of Criminal

Procedure for the said offences. The Bail bonds of accused Nos. 1 to 3 shall stand cancelled after lapse of appeal period as per Section 437(A) of

Code of Criminal Procedure.

11. Aggrieved by the said judgment of acquittal, the complainant in

C.C.85/2021 preferred this criminal appeal and urged apart from the usual grounds, the following specific grounds of appeal:

1. The judgment of the trial court is contrary to law, weight of evidence and probabilities of the case.

2. The trial court not properly appreciated the case of the complainant.

3. The trial court wrongly came to a conclusion that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt.

6

Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

4. The trial court failed to take into consideration of the evidence of

PW1, who gave the evidence with full details, but unfortunately, the trial Court failed to give much weight to the evidence of PW1.

5. The trial Court wrongly comes to a conclusion that the parents of the appellant are not having any financial capacity to give the dowry. The said finding is not at all correct. It is a custom that for the marriage purpose, the parents will secure the amount by several ways.

6. The trial Court wrongly come to a conclusion that the mother though deposed that they mortgaged the property and secured the dowry amount but failed to file the said document, the trial Court find fault as the document was not produced. The said finding of the trial Court is not at all sustainable particularly the accused did not give any notice to produce the said document.

7. The trial Court wrongly comes to a conclusion that the evidences of

PWs 2 to 6 are hearsay in nature. The evidence of this witness is very clear that PW1 informed the harassment to PWs 4, 5 and 6. As the offence of 498-A was taken place between the four walls, there will not be any direct eye witness and the trials Court insisting the direct eye witnesseses are not at all sustainable under the eye of

Law.

8. The trial Court wrongly come to a conclusion that regarding the injury on part of PWI regarding her hearing defect is concerned that PW1 made very clear that the same was increased in view of the harassment made by the Accused No.1 to 3. But the trial Court find fault that the said injury was not taken place at the hands of the accused.

9. The trial Court totally based the Judgment on the facts mentioned in the initial report. The FIR is not an encyclopedia to narrate all the 7

Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

things. In 161 Cr.P.C statements, the witnesses categorically deposed what was taken place.

10. The trial Court unnecessarily picked up the omissions and contradictions and relied on those omissions and contradictions though, the said contradictions and omissions will not cut the root of the case of prosecution.

11. Even as per the rulings of the Hon'ble Supreme Court, though a fact which was not deposed before police is deposed by the witness is not at all fatal to the case of the prosecution.

12. The trial Court wrongly comes to a conclusion that the witnesses failed to depose the date time and month of harassment.

The harassment is a continuous one. It is impossible to give date of harassment against PW1.

Hence, prays to allow the appeal by setting aside the judgment in

C.C.85/2021, dt.12.02.2024.

12. The learned counsel for appellant/prosecution argued that the SHO,

Mahila Police Station filed charge sheet against the accused Nos. 1 to 3 for the offences under Sec. 498-A r/w.34 of Indian Penal Code and Sec. 3 and 4 of Dowry Prohibition Act. He further argued that the evidence of prosecution witnesses proves the cruelty meted out by the defacto complainant and the evidence of PWs. 2 to 6 corroborated in all material aspects with regard to the marriage. He further argued the offence committed by the accused is within the four corners of the house of the accused at Kothapet, Dilshukh Nagar, Hyderabad and hence, the question of accepting independent evidence does not arise. He further argued that the accused did not produce any oral and documentary evidence in support of their defence. He further argued that the prosecution successfully proved 8

Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

the offence committed by the accused by way of documentary and oral evidence. Finally, he rests his argument praying the court to convict the accused for the said offences and to allow the appeal by setting aside the judgment passed by the trial court in the interest of justice.

13. Per contra, the learned counsel for respondents/accused No.1 to 3 argued that there are no substantiating grounds to interfere with the judgment of the trial court and the trial court has considered all the material aspects and finally arrived at a just conclusion that the prosecution failed to establish the guilt of the accused and hence rightly acquitted the accused

No.1 to 3 and therefore there are no grounds to interfere with the judgment of the trial court and hence prays to dismissed the appeal.

14. Now, the points that arose for determination in this appeal are:

1. Whether the prosecution could bring home the guilt of the accused No.1 to 3 for the offence punishable under section 498-A r/w 34 of Indian Penal Code beyond all or any reasonable doubt?

2. Whether the prosecution could bring home the guilt of the accused Nos. 1 to 3 for the offence punishable under section 3 and 4 of Dowry Prohibition Act beyond all or any reasonable doubt?

3. Whether the appellant/prosecution could make out any valid or sufficient grounds to interfere with the judgment of acquittal passed by the trial court in favour of the accused for the offence punishable under Sec. 498-A r/w.34 of Indian Penal Code and Sec.3 and 4 of Dowry Prohibition Act?

4. To what order?

15. No oral or documentary evidence is adduced before this court of appeal.

9

Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

16. POINT Nos. 1 to 3:

a) Before going to deal with the merits of the case for determination of the points, it is relevant to examine the evidence of the prosecution witnesses.

b) PW.1 was the de-facto complainant in this case, PW.2 and 3 are parents of PW.1, PW.4 and 5 are the relatives of PW.1, PW.6 is the independent witness, PW.7 is the investigating officer who registered the case and investigated into it. The accused Nos. 1 to 3 have not adduced any defence evidence on their behalf.

c) It is the specific case of the prosecution that, “On 07-08-2016, the marriage of PW.1 was performed with Accused No.1 at Tirumala. At the time of her marriage, on the demand of accused, her parents gave an amount of Rs.7,00,000/- towards dowry besides presenting Ac.1-00 agricultural land apart from giving household articles worth of Rs.2,00,000/- and Rs. 2,00,000/- as Adapaduchu Lanchanam. After her marriage, she joined with A1 and to lead matrimonial life for a period of 2 ½ years. During their wed-lock, they were blessed with two daughters. A1 to A3 harassed her mentally and physically by demanding additional dowry of Rs.25 lakhs, when her parents expressed their inability to pay additional dowry, the accused necked out her from their house at about 1½ year back and since then, she has been residing at her parent’s house at Kalekhanpet,

Machilipatnam. But, frequently, A1 to A3 continued their harassment towards PW.1 by demanding additional dowry over phone and due to their harassment, she fell in ill-health and lost her hearing power. Basing on the report of PW.1, PW.7/Assistant Sub Inspector of Police, Mahila P.S 10

Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

registered a case in Cr.No.52/2020 for the offences u/Sec. 498-A of I.P.C and Sections 3 & 4 of the Dowry Prohibition Act”.

(d) Coming to the incident proper, the prosecution examined Emana

Vijaya, W/o. E.Santhosh Kumar, who is the defacto complainant as PW.1.

She deposed that her marriage with A1 was solemnized on 07.08.2016 at

Tirumala Tirupathi Devastanam, Tirupathi and at the time of her marriage, her parents gave an amount of Rs.7,00,000/- cash towards dowry besides giving Ac.1-00 land apart from one gold ring to A1 and also gold worth of

Rs.3 lakhs and Rs.1,00,000/- each to her sister-in-laws in total Rs.2 lakhs as Aadapaduchu Lanchanam. She categorically deposed that, at the time of marriage talks, the parents of A1 had stated that A1 has been working in

Airport and drawing salary of Rs.40,000/- per month, but after marriage, she came to know that, he has no such avocation. She further deposed that she lead conjugal life with A1 for a period of two and half years at Kothapet,

Hyderabad amicably and blessed with two female children and later, A1 to

A3 started harassing her for want of additional dowry of Rs.25,00,000/and that, A1 addicted to bad vices and used to beat her and burn her skin with cigarettes. PW.1 further deposed that, although she conveyed all the happenings to A2 and A3, but they paid deaf ear, on that, unable to bear the harassment of A1, she informed the matter to her parents, who procured Rs.50,000/- and had given to A1 and expressed their inability to give such huge amount of Rs.25,00,000/-, but, A1 did not satisfy with the said amount, continued his harassment towards her and blaming her that she blessed with only female children. She further deposed that due to physical assault caused by A1, her health was deteriorated and also effected with nervous problem and impairment of hearing, later, unable to tolerate their harassment and due to her severe mental illness, she went to 11

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her parent’s house and that, though mediations held through elders, but is of no avail, finally, she approached Disha Police Station and lodged complaint Ex.P1 against A1 to A3. In the cross examination she admitted that she converted to Christianity and she used to attend Church. After deposing so, witness volunteered that the accused knew about her conversion of caste. She further admitted that the accused got issued notice through his counsel alleging that she suppressed her hearing ailment and also about conversion of caste, in a PLC vide 90/2020 filed by accused

No.1 before DLSA, LB Nagar, Rangareddy District. She further admitted that she lodged this present complaint after filing of above said PLC by A1.

She deposed that since 2018 onwards she has been living with her parents.

After deposing so, witness volunteered that, she gave complaint immediately after reaching my parents in the year 2016. She deposed that though she consulted the doctor Naga Babu, Machilipatnam when the accused burn her skin with cigarettes but no medical record is available with her to affect that. The rest of the cross examination is nothing but suggestions to the effect that, prior to her marriage she was suffering with hearing impairment and that she suppressed the said fact to the accused family and that her father has no either movable or immovable properties and that she did not file any complaint against the accused persons in between to 2018 to 2020 and that she omitted to state before police in my statement that Al had stated that he has been working in Airport and drawing salary of Rs. 40,000/-per month and that she omitted to state

before police in her statement that after her joining with A1, it came to light

that he has no such avocation in Airport and that she omitted to state before police in her statement that A1 used to burn on her skin with cigarettes and that she omitted to state before police in her statement that A1 is an alcoholic and he used to beat her in drunken state and that though she 12

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conveyed all the happenings to her in laws, but they never admonished him and that she omitted to state before police in her statement that unable to bear the harassment of A1, she informed all the things happening in her martial life to her parents and that she omitted to state before police in her statement that her parents procured Rs.50,000/- and had given to Al and expressed their inability to give such huge amount of Rs.25,00,000/- and that having not satisfied with the amount of Rs.50,000/-, A1 continued his harassment towards her and that she omitted to state before police in her statement that for the sake of her children, and in the interest of marital tie, she used to bear all the harassment caused by A1 for one year and that she omitted to state before police in her statement that her health was also deteriorated due to beating of A1 and suffered with nervous problem and subsequently she suffered with hearing impairment and that due to physical assault caused by Al, she was unable to concentrate on the things and that 1 consulted doctor at Vijayawada and that she omitted to state before police in her statement that A1 used to harass her as she blessed with only female children and that unable to tolerate the harassment of Al at the instigation of

A2 and due to her severe mental illness, she went to her parent’s house and that, she omitted to state before police in her statement that though mediations held through elders but is of no avail and that whenever the elders pacified the issues, Al used to take her to his house but used to send her back by demanding additional dowry and blaming that she gave birth to female children and PW.1 denied the same as not true.

(e) Kotti Durga Rao, S/o. Nancharaiah who is the father of PW.1 was examined as PW.2. He deposed that, at the time of marriage of PW.1, on the demand of accused No.1 to 3, he had given an amount of

Rs.7,00,000/- cash towards dowry besides giving Ac.1-00 land apart from 13

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one gold ring to A1 and also gold worth of Rs.3 lakhs and Rs.1,00,000/- each to her sister-in-laws in total Rs.2 lakhs as Aadapaduchu Lanchanam, at the time of marriage, A1 misrepresented that, he was working in Airport,

Hyderabad and drawing salary of Rs.60,000/- per month, believing the same, they gave huge amount as dowry, but after marriage of P.W.1, they came to know that, A1 has no such avocation. He further depose that, after marriage of PW.1, A1 to A3 and PW.1 lived under one roof at Hyderabad for two years, during the said period, PW.1 gave birth to a female child, later, A1 and PW.1 put up separate family in Hyderabad and they were blessed with second female child. He further deposed that, since marriage, they used to look after the welfare of A1 and PW1 by way of giving amounts to meet their family expenses and that, during the period of PW.1 pregnant, when she came to Machilipatnam and he looked after her welfare and incurred her medical expenses either. He further deposed that, during PW.1 stay with A1 at Hyderabad, he continuously harassed her, beat her in drunken state by demanding to bring additional dowry of Rs.25,00,000/- and that, on one day, due to his beatings, PW.1 sustained injury to her brain and also effected with hearing impairment and that, on coming to know the incident, he rushed to the house of PW.1 and brought her to

Vijayawada and provided treatment. PW2 further deposed that, A2 and A3 harassed PW1 for want of additional dowry and that, A1 completely neglected the welfare of PW.1 and her children and would abuse her in filthy language and used to beat her in drunken state and that, during their occasional visits to his house, A1 used to abuse them and also beat PW.1 for no reason. He further testified that, prior to filing of Ex.P1 report, they approached Mahila Police Station and lodged report against A1 to A3, but on the intervention of police officials and elders, the said report was not pressed, but, A1 did not mend his attitude and continued to harass PW.1 14

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both physically and mentally and necked her out from their house with a demand to bring additional dowry. Finally PW.1 lodged a report against A1 to A3. He deposed that police examined him and recorded his statement. In the cross examination he stated that he is running cool dink shop and deriving income of Rs.500/- per day and he has no other properties except shop. He deposed that his daughters marriage was performed in the year 2016 and since then his daughter and her husband used to reside at

Hyderabad. He further deposed that since her husband did not take care of her and harassed her hence she came to his house. After deposing so,

PW.2 volunteered that though mediators held on two occasions but is of no avail. The rest of the cross examination is nothing but suggestions to the effect that, during the said period PW.1 herein never resided with accused as such this case was all concocted facts and PW.2 denied the same as not true and correct.

(f) K.Lakshmi, W/o. Durga Rao who is the mother of PW.1 was examined as PW.3. She deposed that the marriage of PW1 with A1 had performed on 08-08-2016 at Pedda Thirupathi, at the time of marriage of

PW.1, they gave Rs.7 lakhs towards dowry besides presenting one gold ring to A1 and 10 sovereigns of gold to PW1 apart from giving Rs.2 lakhs as

Adapaduchu lanchanam and also given Ac.1.00 land to her daughter.

However, PW1 and A1 lead happy conjugal life for one and half year at

Hyderabad and blessed with two children. She further deposed that, at the time of marriage talks, the elders informed that, A1 has been working in booking counter in RTC depot and drawing salary of Rs.40,000/-, but, after marriage, they came to know that, A1 is not doing any work and had no avocation, and that, without searching any employment, he used to sit lazy in home and that, he used to beat PW1 and completely neglected to look 15

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after her health and welfare. She further deposed that, during the period of

PW1 pregnant, he did not even provide any medical assistance, as such, they had to take PW1 to their house for the sake of her health and that, even after begetting children, he did not care for them and that, whenever, they tried for reconciliation through mediators, then he coems but did not provide even basic needs. She deposed that about two years ago her daughter lodged report against her husband and in-laws. She deposed that she was examined by the police and recorded her statement. In the cross examination she deposed that her daughter PW.1 has been residing with her since 5 years. She admitted that her son-in-law filed PLC vide No.

90/2020 before DLSA, Rangareddy District seeking direction to wife to join him with children and after closing the PLC her daughter lodged the present report in the month of October, 2020. The learned counsel confronting the medical certificate posed the question to PW.3 that whether PW.1 got treatment for her ear impairment prior to her marriage? For that, PW.3 answered prior to her marriage she sustained injury in her college and since then, she has been getting treatment. After deposing so, witness volunteered that after marriage the hearing impairment problem of PW.1 is increased. She admitted that there is no documentary proof to who that they had given Rs.7,00,000/- cash, Ac.1.00 cents of land apart from 10 sovereigns of gold to the accused at the time of marriage. After deposing so, witness volunteered that they obtained loan by mortgaging property in

Cooperative Bank and she can furnish those documents if necessary. She deposed that she cannot say on which dates the accused harassed his daughter over phone. To the question whether she is willing to send PW.1 to matrimonial home, PW.3 expressed her disinterest to send her daughter with A1. The rest of the cross examination is nothing but suggestions to the effect that accused never harassed her daughter and never demanded for 16

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additional dowry and that without any justifiable cause PW.1 intentionally

left the society of accused and that accused never demanded for additional dowry and PW.3 denied the same as not true.

(g) Bandi Prasad, S/o. Venkateswara Rao, who is the maternal uncle of

P.W.1 was examined as PW.4. He deposed that, PW1 is his nephew and in the year, 2016, her marriage was performed with A1 at China Tirupathi and by the time A1 is working in Hyderabad and that, at the time of marriage,

P.W.1 parents had given Rs.25 lakhs towards dowry apart from presenting gold ornaments and that, immediately, after the marriage P.W.1 had joined

A1 at Hyderabad and they lead happy marital life for a period of one and half year. He further deposed that, he was informed that, A1 harassed

P.W.1 in drunken state and used to be lazy without attending any work, as such, on the advice of elders, P.W.1 and A1 had put up separate family at

Hyderabad, however, A1 did not attend any work and completely neglected the welfare of family, on that, he along with P.W.2 and elders went to the house of P.W.1 and admonished A1 and pacified the issues between them, but he came to know that, A1 did not mend his attitude and continuing harassment towards P.W.1, on that, the brother of P.W.1 went to PW1 and brought back her to her parents’ house, at that time P.W.1 was pregnant.

He deposed that police examined him and recorded his statement. In the cross examination he deposed that PW.2 is running buddy shop but she does not know the earnings of PW.2. He deposed that PW.2 got agricultural land. He deposed that he has no personal knowledge whether PW.2 and 3 had given dowry of Rs.25,00,00/- but he was informed through others. He does not have personal knowledge about the harassment of a1 towards

PW.1. He was informed through PW.2. He deposed that on coming to know about the harassment of A.1, he along with others went to PW.1 to conduct 17

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mediations, but he cannot say the names of the elders. After saying so, witness deposed that he along with PW.2 went to the house of PW.1,

Hyderabad. He admitted that he did not state in his statement before police with regard to the mediations and other facts stated in his chief evidence.

The rest of the cross examination is nothing but suggestions to the effect that accused never harassed PW.1 and that as, PW.1 is his nephew to support her case he is deposing false and that the brother of PW.1 brought her to her parents house but the accused never necked out her and PW deposing false and that the brother of PW.1 brought her to her parents house but the accused never necked out her and PW4 denied the same as not true.

(h) Kotti Venkateswara Rao, S/o. Nancharaiah who is the younger brother of PW.2 was examined as PW.5. He deposed that at the time of marriage talks, they were informed that, A1 working in computer section,

Airport, Hyderabad and that, on 07.08.2016, the marriage of P.W1 with A1 was celebrated at Thirumala, at the time of marriage of PW.1, the parents of PW.1 had given Ac.1-00 Agricultural land towards Pasupu Kumkumma besides giving Rs.7,00,000/-as dowry apart from giving 10 sov. of gold and

Rs.2,00,000/- towards Adapaduchu Lauchanam. He further deposed that, after marriage, PW1 joined with A1 at Hyderabad and lead conjugal life happily for one year, later, during PW1 visits to Machilipatnam, she used to reveal about the harassment of A1 that he addicted to alcohol and harassed

PW.1 for want of additional dowry of Rs.25 lakhs and also used to demand her to sell away the land which was given to him at the time of her marriage and to bring sale proceedings and subjected her to cruelty both physically and mentally, on that, they placed the matter before elders and the elders admonished A1 not to harass PW1 and pacified the issues, but, he did not 18

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mend his attitude and continued his harassment towards PW1, and that,

PW1 lodged a report against accused at Bandar Police station. He deposed that police examined him and recorded his statement. In the cross examination he deposed that his elder brother PW.2 is a white ration card holder. He does not know as to how and from whom his brother PW.2 procured such huge amounts in order to give as dowry and other lachanams. The rest of the cross examination is nothing but suggestions to the effect that he did not state in his statement before police that they were informed that the accused was working in Airport and that after the accused filing petition for restitution of conjugal rights, the present criminal report was launched against accused and that before coming to witness box the court constable tutored him about the case facts and that the complainant herself left the society of her husband without any reasonable cause and in order to support the case of his elder brother PW.1 he is deposing false

before the court and that A1 to A3 never harassed PW.1 and never

demanded for additional dowry or for any other means that A1 to A3 are falsely implicated in this case at the instance of PW.1 and PW.5 denied the same as not true.

(i ) V.Jagadish Babu, S/o. Sambasiva Rao who arrayed as independent witness was examined as PW.6. He deposed that in the year 2016, the marriage of A1 and PW.1 was solemnized at Pedda Thirupathi and that, he was informed that, A1 has been working in Airport and drawing salary of

Rs.60,000/-. He further deposed that, at the time of marriage of PW.1, the parents of PW.1 had given Ac.1-00 land and also given Rs.7 lakhs towards dowry besides given Rs. 2 lakhs towards paraphernalia and Adapaduchu lanchanam, after marriage, PW.1 joined A1 at Hyderabad and they were blessed with a child out of wed-lock. He further deposed that, whenever 19

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PW.1 visits her parents, PW.1 and her parents would say to him about the harassment of A1 towards PW.1 under the influence of alcohol and about the demand of A1 for additional dowry. He further deposed that, though the parents of PW.1, through elders conducted mediation, but accused No.1 to 3 demanded for Rs.25 lakhs as additional dowry and that, on the intervention of elders, A1 took away PW.1 to Hyderabad, but after few months, on one day, PW2 received phone call from the neighbor of PW.1,

Hyderabad and informed that, PW.1 was with them and she has no money with her to come to Machilipatnam and asked PW.2 to come down to

Hyderabad and take away PW.1, on that, both he and PW2 consulted the driver of R.K travels and requested him to bring PW.1 to Machilipatnam assuring that they will give bus fair after her arrival to Machilipatnam and that, PW.1 came to Machilipatnam by R.K travels, then, PW2 had given bus fair to the driver, at that time, PW.1 was pregnant and that, A1 did not turn up to take back her to his house. He deposed that police examined him and recorded his statement. In the cross examination he admitted that the father of PW.1 i.e., PW.2 is his close friend so also neighbour. He admitted that he came to all the family issues of PW.1 through her father. The rest of the cross examination is nothing but suggestions to the effect that he omitted to state in his statement before police that A1 harassed PW.1 under the influence of liquor and that he omitted to state in his statement before police that during mediations A1 demanded for 25 lakhs as additional dowry and that he did not state before the police that on receipt of phone call from the neighbour they conversed with driver of RK travels and requested him to bring PW.1 to Machilipatnam and they will pay bus fair after her arrival to

Machilipatnam and that A1 to A2 never harassed PW.1 and never demanded additional dowry and that at the behest of PW.2, he is deposing false to support the case of PW.1 and PW.6 denied the same as not true.

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(j) P.Srinivasa Rao, S/o. P.K.Sagar Assistant Sub Inspector of Police who registered the case was examined as PW.7. He deposed that on 11.10.2020, he received a written report from PW.1 against Accused 1 to 3 harassed her for additional dowry, basing on its, he registered a witness and recorded their statements, prepared rough sketch of the scene of offence under Ex.P3 and that, on 21.10.2020, he served notices U/s.41-A

Cr.P.C., on A1 to A3 and on completion of investigation, LW.10/N.Subba

Rao, Sub-Inspector of Police filed charge sheet. In the cross examination he deposed that PW.1 along with her parents came to the Police Station and lodged a report. He admitted that he did not obtain the signature of complainant in col. No. 14 of Ex.P.2/FIR and Cl. No.15 of FIR is kept blank.

He deposed that he never made any efforts to seize the mobile phone of complainant and accused not even procured the data from the said phones for getting evidence of said verbal harassment towards PW.1 over phone.

He admitted that PW.1 or her parents did not furnish any medical record to show that she sustained ear impairment on account of harassment in the hands of the accused. He is not aware whether the accused had filed petition PLC 19/2020 before DLSA, LB Nagar for the relief of restitution of conjugal rights. He deposed that he did not enquire the financial capacity of the father of PW.1 to offer such huge amount of dowry and other presentations. He admitted that PW.1 omitted to state before him in her statement that A1 had stated that he has been working in Airport and drawing salary of Rs.40,000/- per month and that after joining with A1, it came to light that he has no avocation in Airport and that A1 used to bum on her skin with cigarettes and that A1 is an alcoholic and used to beat her in drunken state and that though she conveyed all the happenings to her in laws, but they never admonished him and that unable to bear the 21

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harassment of a1, she informed all the things happening in her marital life, to her parents. The rest of the cross examination is nothing but suggestions to the effect that he did not examine the neighbours where PW.1 and accused stated to have lead marital life at Hyderabad and that he never examined the neighbours of PW.1 at Hyderabad purposefully to prevent the real facts come into light and that no such harassment was committed by accused and that he made table and biased investigation basing on the printed report of PW.1 and that at the behest of defacto complainant accused were falsely implicated in this case and PW.7 denied the same as not true.

(k) The charge leveled against accused No.1 to 3 is for the offence punishable under Section 498-A r/w.34 of Indian Penal Code. To prove the guilt of accused No. 1 to 3 for commission of the offence under

Section 498-A r/w34 of IPC, the prosecution has to prove that they committed some acts against PW.1 that amounts to cruelty as provided in

Section 498-A. As per Section 498-A of Indian Penal Code, the harassment simpliciter is not a cruelty. For better appreciation, the said provision of law is reproduced here under:- “498-A Husband or relative of husband of a woman subjecting her to cruelty:-

Whoever, being the husband or the relative of the husband of a woman, subjects such woman, to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation:- For the purposes of this section “cruelty” means:

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury 22

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or danger to life, limb or health (whether mental or physical) of the woman; or

(b) Harassment of the woman, where such harassment is with view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

The word cruelty is defined in the explanation appended to the said section as referred above. Thus, provided a new dimension to clause (a) of Section 498 of Indian Penal Code that any willful conduct which is likely to drive woman to commit suicide would constitute cruelty. That willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman would also amounts to cruelty. Clause (b) of the explanation provides that harassment of the woman where such harassment is with a view to coerce her or any person relating to her to meet any unlawful demand for property or valuable security or is on account of failure by her or any person related to her to meet such demand would also constitute cruelty for the purpose of Section 498-A of Indian Penal

Code. It is very clear that as per clause (b) of the explanation which according to the learned Public Prosecutor is attracted in the instant case.

Every harassment does not amount to cruelty within the meaning of Section 498-A of Indian Penal Code. The definition stipulates that harassment has to be such a harassment with a view to coerce the woman or any person relating to her to meet unlawful demand. In other words, the simpliciter is not cruelty and it is only when harassment is committed for the purpose of coercing the woman or any other person relating to her to meet an unlawful 23

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demand of property etc that amounts to cruelty punishable under Section 498-A of Indian Penal Code. It is true while deciding offence under Sec.

498-A of IPC whether the accused committed offence under Sec.498-A of

IPC by giving and taking dowry which is a material aspect. But in this case, the prosecution filed charge sheet for the offence under Sec. 498-A of IPC and Sec. 3 and 4 of Dowry Prohibition Act. The evidence put forth by the prosecution by examining PWs. 1 to 7 and by marking Ex.P.1 to P3 could prove the guilt of the accused for the offence under Sec. 498-A of IPC and

Sec. 3 and 4 of Dowry Prohibition Act beyond all reasonable doubt or not is the question. Let us now scrutinize the evidence put forth by the prosecution whether it could prove the first charge i.e., under Sec. 498-A of

IPC.

(k) It is an admitted fact that PW.1 and accused No.1 are wife and husband and there is no dispute between the relationship of wife and husband between accused No. 1 and P.W.1 as the accused Nos. 1 to 3 are not disputing the marriage of P.W.1 with accused No.1. Now it is to be determine where the accused Nos. 1 to 3 subjected the PW.1 to cruelty to meet their unlawful demand and the cruelty must be the nature of any cruelty must be of the nature of any willful conduct as was likely to drive the woman to commit suicide or cause grave injury or danger to her life, limb or health, either mental or physical and the harassment of such woman was with a view to coerce her to meet unlawful demand for property or valuable security and the woman was subjected to such cruelty by husband or any relative of the husband.

(l) In order to establish Sec. 498-A Indian Penal Code it is necessary for the prosecution to prove that the accused Nos.1 to 3 24

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subjected PW.1 to cruelty. As seen from the evidence of PW.1, she deposed that at the time of her marriage her parents presented

Rs.7,00,000/-, towards dowry, one acre land and also presented

Rs.1,00,000/- each to her sister-in-laws. She further deposed that by the time she joined with A1, her parents had given paraphernalia worth of

Rs.20,000/- besides presented gold worth of Rs.3,00,000/- and also presented a gold ring to accused No1. PW.2 and 3 who are the parents of

PW.1 also deposed in the same lines as deposed by P.W.1. Among the other witnesses i.e., PWs. 4 to 6, PW.4 who are arrayed as relatives of

PW.1 deposed that PW.1 is his nephew and in the year 2016 the marriage of PW.1 was performed with A1 at China Tirupathi and at the time of marriage the parents of PW.1 had given Rs.25,00,000/- towards dowry apart from gold ornaments. Whereas PW.5 and 6 deposed that on 07.08.2016 the marriage of PW.1 was performed with A1 at Tirumala and at the time of marriage the parents of PW.1 had given Ac.1.00 cents of agricultural lands towards pasupukumkuma besides parted with

Rs.7,00,000/- to the accused towards dowry and also Rs.2,00,000/- as adapaduchu lanchanams. PW.4 stated that the marriage of P.W.1 was performed with A1 at China Tirupathi and the other witnesses stated that the marriage of PW.1 and accused No.1 was performed at Pedda Tirupathi.

Which means PW.4 has no knowledge about the marriage where it was performed. Further PW.5 deposed that the parents of PW.1 also given 10 sovereigns of gold to the accused. Further the father of PW.1, who is examined as PW.2 deposed that he is running cool drink shop and deriving income of Rs.500/- per day and he had no other properties except the shop.

He further deposed that he did not furnish any documentary proof to show that he is having Rs.7,00,000/- and also Rs.4,00,000/- at the time of marriage. PW.3 who is the mother of PW.1 deposed that there is no 25

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documentary proof to show that they had given Rs.7,00,000/- cash, Ac.1.00 cents of land apart from 10 sovereigns of gold to the accused at the time of marriage. After saying so, PW.3 volunteered that they obtained loan by mortgaging property in cooperative bank, and she can furnish those documents if necessary. Whereas PW.4 who is the relative of PW.1 stated that PW.2 is running a buddy shop and he got agricultural land but he does not have personal knowledge whether PW.2 had given dowry of

Rs.25,00,000/- or not, but he came to know through others that PW.2 presented dowry of Rs.25,00,000/- to the accused. Further, PW.5 who is the brother of PW.2 stated that PW.2 is having a white ration card, but he does not know as to how and from whom his brother PW.2 procured such huge amount to give dowry and other lanchanams. Finally, PW. 6 who arrayed as independent witness he stated that he came to know all the family issues of PW.1 through her father. The investigation officer who was examined PW.7 also stated in his evidence that he did not investigate whether the father of PW.1 had such financial capacity to give such huge amounts to the accused. Except, the oral evidence of P.Ws.1 to 5 there is no other evidence to establish that the dowry of Rs.7,00,000/- cash, 10 sovereigns of gold and Ac.1.00 cents of land were presented to the accused at the time of marriage. Further as per the own version of PW.2 he had not owned any other properties except the shop which he is running.

But PW.3 stated that they mortgaged their properties and arranged amount to the marriage of PW.1. A perusal of entire record no material was placed by the prosecution to show that the parents of PW.1 had some properties other than the shop and they mortgaged them to perform the marriage of

PW.1. The prosecution did not produce any evidence with regard to the source of income of the father of PW.1. In the absence of any documentary evidence to establish how P.W.2 had acquired Rs.7,00,000/- to present the 26

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same to A1 at the time of his marriage, the oral contention of the prosecution is not believable.

(m) There is inconsistency in the evidence of PWs. 1 to 6 about the demanding of additional dowry. Except the oral saying of P.W.1 about presentation of Rs.25,00,000/-, there is no other evidence to establish that

P.W.2 had other properties except the shop and he mortgaged the properties and presented the same to A1. The prosecution did not adduce any evidence like documentary proof to prove that P.W.2 mortgaged his properties and gave Rs.25,00,000/- towards dowry to A1 in the year 2016.

At one place, prosecution is stating that, at the time of marriage P.W.2 presented Rs.7,00,000/- to A1 towards dowry and at another place the prosecution is stating that P.W.2 presented Rs.25,00,000/- and gave it to the accused. When PW.2 himself is stating that except the shop he had no other properties, then from where he mortgaged the properties and procured the amount of Rs.25,00,000/- is not explained by the prosecution.

In the absence of any documentary evidence, the contention of the prosecution is not believable and accepted as such it is held that the prosecution failed to prove and establish that the accused No. 1 to 3 demanded additional dowry of Rs.25,00,000/- and on that the parents of

PW.1 presented Rs.50,000/- to the accused. It is the contention of the prosecution that the accused used to beat PW.1 and abuse her and also used to burn her skin with cigarettes. This fact was not stated by PW.1 in her Sec.161 Cr.P.C statement and further no other witnesses including the parents of PW.1 had stated that the accused used to burn PW.1 with cigarettes which is an exaggeration. Except the oral evidence of P.W.1 there is no other evidence to establish that A1 beat P.W.1 and burn her skin with cigarettes and abused her. Generally, if the said incident was occurred 27

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Dt.01.04.2025 Krishna, Machilipatnam.

the neighbours would have witnessed the same. The prosecution did not examine any of the neighbours who are immediate neighbours to the accused. The investigating officer i.e., PW.7 admitted in his evidence that he did not examine any of the neghbouring witnesses of accused when they stayed at Hyderabad. On perusal of prosecution evidence, except the oral evidence of P.W.s 1 to 5, there is no other evidence before the court to come to a conclusion that the father of P.W.1 presented the above said amount and land to A1 at the time of the marriage. Further there is no evidence on record to show that, from which shop the father of P.W.1 bought 10 sovereigns of gold. Further no receipts were filed before the court to prove and establish that the father of P.W.1 purchased gold from which shop. If really, the father of the P.W.1 purchased the above said gold from the shop and presented the same to A1 at the time of marriage, he would have received the receipts and produced the same before the court.

But no such positive evidence was filed before this court to prove that the father of P.W.1 bought the said gold at the time of marriage and presented the same to A1. In the absence of documentary evidence, the oral evidence of prosecution cannot be believable and accepted. In view of above discussions, it is held that the prosecution miserably failed to prove and establish that the parents of P.W.1 presented Rs.7,00,000/- to A1 to A3,

Ac.1.00 cents of land and 10 sovereigns of gold to A1 to A3 at the time of marriage. Hence, it is held that the oral evidence of P.Ws. 1 to 6 is no way helpful to the case of the prosecution to prove about presentations of dowry at the time of the marriage. In the absence of any documentary evidence to prove and establish the presentation of the dowry as such their oral evidence is not believable and accepted.

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Dt.01.04.2025 Krishna, Machilipatnam.

(n) The learned counsel for the appellant argued that due to the harassment of the accused, PW.1 lost her hearing power. PW.1 in her evidence she denied the suggestion that prior to her marriage she has been suffering with impairment of hearing, but she suppressed the said fact of the accused. But as seen from the evidence of PW.2, he stated that on one day he came to know that due to beating accused No,1, PW.1 sustained injury to her brain and arose hearing impairment and on coming to know the incident, he rushed to the house of PW.1 and brought her to Vijayawada and got provided treatment. Whereas the mother of PW.1, who arrayed as

PW.3 had categorially admitted that prior to the marriage, PW.1 sustained injury in her college and since then she has been getting treatment. After saying so, PW.3 volunteered that after marriage, the hearing problem of

PW.1 has increased. When the mother of PW.1 is stating that PW.1 sustained injury in her college and since then she has been getting treatment, then it is the duty of the investigating officer to investigate the case properly. The investigation officer did not investigate on this point which is very crucial to the case of the prosecution, but the reasons best known to him he did not investigate the said fact how PW.1 had got this hearing problem. Further PW.1 did not state in her Sec. 161 Cr.P.C statement that due to the harassment of the accused over phone she left her hearing power. It is the contention of the complainant that after she came to her parents house the accused used to harass her over phone and due to that she lost her hearing power. But as seen from the evidence he did not seize the cell phone from which the accused used to harass PW.1 and he did not try to collect the call data, whether the said fact was true or not. Therefore, it can be said that the prosecution has come to the court with unclean hands.

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Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

(o) As seen from the Sec.161 Cr.P.C., statement of PW.1, PW.1 had categorically stated that she initiated the criminal case against the accused when the accused No.1 got issued notice to her in PLC vide No. 90/2020 filed by him before the DLSA, LB Nagar, Rangareddy District demanding her to join him at Hyderabad to lead conjugal life. A perusal of PLC complaint would show that on 05.10.2020 the accused No.1 got issued notice to PW.1 demanding to join him to lead marital life. PW.1 had categorically admitted in her evidence that A1 got issued legal notice through his counsel in PLC No. 90/2020 before DLSA, LB Nagar,

Rangareddy District alleging that she suppressed her hearing problem and also about conversion of caste. Further, PW.1 herself admitted that she converted into Christian and she would attend Church. She also admitted that after receipt of notice, dt. 05.10.2020 she got filed the present case against the accused. Except PW1, the other witnesses are not eye witnesses about the nature of alleged harassment or problems between A1 and PW1. Though, PWs. 1 to 3 stated that, the disputes between PW1 and

A1 was placed before the elders, for the obvious reasons best known to them, they did not name the persons before whom, before the matter was placed. Evidently, no elders were shown as witnesses. No doubt, the prosecution has examined PW4 to PW6, by figuring them as independent witnesses, but evidently they are nearest relatives of PW.1. PW.4, uncle of

PW.1 admitted that, he does not have personal knowledge whether, PWs.2 and 3 had given dowry and that about the harassment of A1 towards P.W.1.

PW.4 and 5 further admitted that, although, they conducted mediation, but they cannot say the names of elders and on which date and where it was conducted. PW.6 fairly admitted that, he came to know all the family issues of PW.1 through her father. As stated supra, the PW1 and A1 lived together at Hyderabad after the marriage and as per the PW1, she was subjected to 30

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Dt.01.04.2025 Krishna, Machilipatnam.

harassment and manhandled by her husband at Hyderabad. If really the harassment had made at Hyderabad, then how PWs. 4 to 6 who are residents of Machilipatnam became the witnesses to the harassment meted out by PW.1. Nowhere in the entire evidence, PWs. 4 to 6 had stated that they had visited Hyderabad and witnessed the harassment. The version of

PWs. 1 to 3 made clear that the PW1 went to her parental house for delivery only and it is not their case that, the A1 to A3 necked out PW1 from their house. There is also no medical evidence to show that, accused beat

PW1 on many occasions, by coming to the house in drunken condition. The investigation undertaken by PW7 clearly indicates that, he did not conduct any reconciliation proceedings before registering FIR. He stated in his cross-examination that, since the parties did not agree, for reconciliation, he could not conduct any such proceedings. On perusal of the entire evidence of prosecution witnesses on record, it is apparent that, there are no particulars like specific date and time when the complainant was subjected to cruelty with a demand of dowry and there are specific instances which have been spoken to either by PW1 or by her parents PW2 and PW.3. On the other hand, from the evidence on record, it is clear that, the PW7 has not chosen to examine any neighboring witnesses of PW1 and A1 at

Hyderabad. The PW7 could not assign any reason for not examining any such witnesses. The neighbors of A1 and PW.1 are the crucial witnesses regarding the aspect of harassment of PW1 at her in-laws house and in the absence of the evidence of any such disinterested witnesses, the evidence of PW.1 does not inspire confidence. Non-examination of any neighbours in vicinity is fatal to the prosecution case.

(p) As per the own evidence of PW.1, the accused No.1 did not file any divorce petition against her and he did not asked her to file divorce. On the 31

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other hand the accused had filed PLC before the DLSA demanding PW.1 to join him to lead martial life along with him. Further during cross- examination PW1 was confronted with Ex.P1 wherein the various facts mentioned in examination in chief such as accused beat her and that demanded Rs.25 lakhs from her parents have not been mentioned. Thus the examination in chief is full of improvements from what stated by PW.1 in

Ex.P1 and FIR/Ex.P.2. Thus in view of the aforesaid observations this court find that testimony of PW.1 is full of contradictions and is not worthy of credit. PW2 and PW3 are only interested witnesses being parents of PW.1.

Further even from the testimony on record of PW2 and PW3 the allegations of offence under section 498-A IPC against accused Nos. 1 to 3 are not proved. In view of the aforesaid this court hold that prosecution has failed to establish the kind of cruelty as prescribed under section 498-A r/w.34 of

Indian Penal Code, and thus accused deserves acquittal.

(q) In the absence of any evidence of independent witnesses, to prove and establish the alleged harassment made by the accused, the oral contention of P.W.1 is not believable and accepted. PWs. 2 and 3 admitted in their evidence that they taken back PW.1 to Machilipatnam for delivery on the account of her carrying second pregnancy. There is no consistency in the evidence of PWs. 1 to 3 as to whether PW.1 had joined her parents on the account of her pregnancy or on the account of the alleged harassment meted out by the accused. Further there is no medical evidence establishing the injuries alleged to be sustained by PW.1 in the hands of the accused. A perusal of entire evidence of PWs. 1 to 6 it clearly establishes that PW.1 came to her parents house for delivery and since then she has been residing along with her parents. In the absence of any evidence, the oral evidence of P.W.1 cannot be accepted and believable.

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Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

There is no incriminating material from their evidence that the accused harassed the PW.1 and subjected to cruelty. Hence their evidence is not helpful to the prosecution case. In order to attract the offence under

Section 498-A IPC the prosecution has to prove the accused harassed

PW.1 both physically or mentally or there is any willful demand for any dowry or valuable security for which absolutely there is no evidence that the accused harassed the PW.1 physically or mentally or demand of any dowry.

But there is no evidence from PW.1, she gave complaint against the accused before filing the present case. There is no incriminating material from the evidence of P.Ws.1 to 6 these accused subjected the PW.1 to cruelty. Without there being any cogent evidence, it cannot be said that

PW.1 was subjected to harassment in the hands of the accused No.1 to 3.

In view of the above detailed discussion coupled with reasons stated supra it follows that the prosecution failed to prove that PW.1 was subjected to harassment in the hands of the accused No.1 to 3 and thereby the accused

No.1 to 3 committed the offence punishable under Sec. 498-A r/w. Indian

Penal Code.

(r) Coming to the last charge, it is alleged that the accused Nos. 1 to 3 took dowry from the parents of PW.1 and later they demanded the accused Nos. 1 to 3 demanded PW.1 to bring additional dowry from her parents and harassed her both physically and mentally and thereby they both committed the offence punishable under Sec. 3 and 4 of Dowry

Prohibition Act. As discussed supra, except PW.1 to 3, no other witnesses i.e., PW.4 to 6 have stated that the parents of PW.1 presented dowry at the time of her marriage with accused No.1. No incidents or instances were stated by any of these witnesses to consider that PW.1 was subjected to harassment demanding additional dowry from her parents by accused Nos.

33

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1 to 3. Further the marriage between PW.1 and accused No.1 took place on 07.08.2016 and at the time of marriage the accused No.1 said to have been received dowry in cash and kind but it is required to be noted that as per

Rule 10 of A.P. Dowry Prohibition Rules within one year from the date of demand the complaint has to be lodged and as seen from the material available on record the present case is filed before the trial court on 11.10.2020, which is almost after 4 years of their marriage PW.1 filed the present case, as per the own contention of PW.1, the demand of additional dowry was made in the year 2016 to 2018, but the complaint is filed in the year 2020. Hence, Section 4 of Dowry Prohibition Act, 1961 cannot be pressed by the prosecution for want of limitation. In view of the above detailed discussion coupled with reasons stated supra it follows that the prosecution failed to prove that PW.1 was harassed by the accused Nos. 1 to 3 for their illegal demand of additional dowry and thereby the accused

No.1 to 3 committed the offence punishable under Sec.3 and 4 of Dowry

Prohibition Act.

(s) Therefore, in view of the detailed discussion coupled with the reasons stated supra, this court holds that it is not safe to rely upon the evidence of PW.2 to 6 who are relatives to each other and PW.1 who is said to be defacto complainant in the alleged incident to come to a conclusion that accused Nos.1 to 3 subjected PW.1 to cruelty and demanded for additional dowry amount from her parents and therefore, accused Nos.1 to 3 cannot be held guilty of the offences punishable under

Section 498-A r/w.34 of Indian Penal Code and Sec. 3 and 4 of Dowry

Prohibition Act. Moreover, it is cardinal principle under criminal jurisprudence that guilt of the accused must be proved beyond all reasonable doubt and the burden always lies on the prosecution only to 34

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Dt.01.04.2025 Krishna, Machilipatnam.

establish its case. Another golden thread which runs through the web of the

Administration of Justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, which means benefit of doubt must always goes in favour of the accused. In view of the above discussion coupled with the reasons stated supra, this court holds that the prosecution failed to bring home the guilt of the accused Nos.1 to 3 for the offences punishable under Section 498-A r/w.34 of Indian Penal Code and Sec. 3 and 4 of

Dowry Prohibition Act Code and the learned trial Judge has rightly appreciated the evidence of the prosecution and find the accused Nos.1 to 3 not guilty of the offences punishable under Section 498-A r/w.34 of Indian

Penal Code and Sec. 3 and 4 of Dowry Prohibition Act and acquitting them for the said offences in his impugned Judgment. Point No.1 and 2 are accordingly answered in favour of the accused Nos.1 to 3.

17) POINT No.3:

I have carefully gone through the impugned judgment passed by the learned trial court. In view of the above discussion coupled with reasons stated supra, it is very much clear that there are no grounds to interfere with the judgment of acquittal passed by the trial court and I see no infirmities in the said judgment of the trial court to interfere with it. Hence, this court is of the considered view that the impugned judgment of the trial court is liable to be confirmed and need not be interfered with. Point No.3 is accordingly answered.

18) POINT NO.4:

IN THE RESULT, the Criminal Appeal is dismissed. Accordingly, 35

Crl.A.No.40/2024 Sessions Judge,

Dt.01.04.2025 Krishna, Machilipatnam.

the Judgment dt.12.02.2024 passed by the learned Special Judicial

Magistrate of I Class Trying for P & E Offences, Machilipatnam in C.C.No.

85/2021, finding the accused Nos.1 to 3 are not guilty under Section 248 (1)

Cr.P.C. for the offences punishable under Sections 498-A r/w.34 of Indian

Penal Code and Sec. 3 and 4 of Dowry Prohibition Act, and acquitting them for the said offences, is hereby confirmed.

Typed by the stenographer to my dictation and after correction pronounced by me in open court on this the 1st day of April, 2025.

Sessions Judge,

Krishna, Machilipatnam.

Copy to The Special Judicial Magistrate of I Class Trying for P & E Offences, Machilipatnam.