Smt. B.Prathima

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE

KARIMNAGAR

PRESENT : SMT. B. PRATHIMA Prl. District Judge Karimnagar.

Thursday, the 10th day of April, 2025.

APPEAL SUIT No.104 of 2017

Between:

Mallyala Venkataiah S/o Rangaiah, age: 70 years, occ: Business, R/o.H.No.4- 2-17, North Tower Road, Karimnagar. …Appellant/Plaintiff

And

1. Andhra Pradesh Industrial Infrastructure Corporation Ltd., Parishrama Bhavan, No.7-958/B, Fateh Maidan Road, Hyderabad.

2. Zonal Manager, PA Industrial Infrastructure Corporation Ltd., Zonal Office, Industrial Estate, Warangal.

3. Assistant Zonal Manager, AP Industrial Infrastructure Corporation Ltd., Industrial Estate, Karimnagar.

4. Maddineni Savithri (Not Necessary Party) W/o late Venkata Ramana Rao, age: 43 years, occ: Household, R/o. H.No.24-6-10, Fathima Nagar, Kagipet, Warangal.

5. Maddineni Susheela Rani W/o late Venkata Ramana Rao, age: 56 years, occ: Housewife, R/o. H.No.22-66-175, Beedi Workers Colony, Gajwel, Medak.

6. Akarapu Bhaskar Reddy S/o Gopal Reddy, age: 60 years, occ: Advocate, R/o. H.No.2-10-1221, Flat No.402, Sapthagiri Apartments, Jyothinagar, Karimnagar.

7. Muddasani Laxmi Deepika W/o G.Surendar Reddy, age: 50 years, occ: House wife, R/o. HIG-2 Block 25, Flat No.11, Baglingampalli, Hyderabad.

8. Manchkatla Manoranjani W/o Ramesh Babu, age: 47 years, occ: House wife, R/o. H.No.1-5-425, Laxminagar colony, Karimnagar. …Respondents/Defendants

Aggrieved by the Judgment and Decree dt.01.10.2016 passed by learned

Prl. Junior Civil Judge, Karimnagar in

OS No.170 of 2004

Page 2 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

Between:

Mallyala Venkataiah S/o Rangaiah, age: 55 years, occ: Business, R/o. H.No.4-2-17, North Tower Road, Karimnagar. …Plaintiff

And

1. Andhra Pradesh Industrial Infrastructure Corporation Ltd., Parishrama Bhavan, No.7-958/B, fateh Maidan Road, Hyderabad. 500004 Rep: by Managing Director.

2. Zonal Manager, PA Industrial Infrastructure Corporation Ltd., Zonal Office, Industrial Estate, Warangal.

3. Assistant Zonal Manager, AP Industrial Infrastructure Corporation Ltd., Industrial Estate, Karimnagar.

4. Maddineni Savithri (Not Necessary Party) W/o late Venkata Ramana Rao, age: 43 years, occ: Household, R/o. H.No.24-6-10, Fathima Nagar, Kagipet, Warangal.

5. Maddineni Susheela Rani W/o late Venkata Ramana Rao, age: 42 years, occ: Housewife, R/o. H.No.22-66-175, Beedi Workers Colony, Gajwel, Medak.

6. Akarapu Bhaskar Reddy S/o Gopal Reddy, age: 55 years, occ: Advocate, R/o. H.No.2-10-1221, Flat No.402, Sapthagiri Apartments, Jyothinagar, Karimnagar.

7. Muddasani Laxmi Deepika W/o G.Surendar Reddy, age: 40 years, occ: House wife, R/o. HIG-2 Block 25, Flat No.11, Baglingampalli, Hyderabad.

8. Manchkatla Manoranjani W/o Ramesh Babu, age: 42 years, occ: House wife, R/o. H.No.1-5-425, Laxminagar colony, Karimnagar. Defendants No.6 to 8 were brought on record as per order dated 03.06.2014 in IA 1135/2012.

…Defendants

APPEAL FILED UNDER ORDER 41 RULE 1 OF C.P.C. SEC.96 CPC.

This Appeal Suit came before me for final hearing in the presence of Sri L.Raja Reddy, Advocate for the appellant and Sri G.Srihari, Advocate for respondents No.1 to 3, Sri T.Goutham Reddy, Advocate for respondents No.5 to 8 and upon hearing the matter and having stood over for consideration till this day, the Court delivered the following:

Page 3 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

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

1.The unsuccessful plaintiff in OS No.170 of 2004 filed this Appeal seeking to set aside the Judgment and Decree dt.01.10.2016 passed in said suit by the learned

Prl. Junior Civil Judge, Karimnagar.

2.For the sake of convenience, parties hereinafter are referred to as they were arrayed before the Trial Court in OS No.170 of 2004.

3.OS No.170 of 2004 was filed by plaintiff against defendants seeking relief of

Specific Performance of Contract of Sale directing defendants to execute registered sale deed in favour of plaintiff in respect of the suit property. The suit of the plaintiff was Dismissed.

4. Brief pleadings of both sides before the Trial court are as follows:

Plaint averments:

4.1Defendants No.1 to 3 allotted 980 Sq Yd plot together with Stores shed situated at Industrial Estate Karimnagar on Hire purchase-cum-lease basis to late

Maddineni Venkata Ramana Rao vide allotment letter No.34643/DW/DD-2/80 dt.

04.02.1981. Said document was signed by General Manager, APIIC, Hyderabad.

Sale consideration was fixed at Rs.35,227/-. Possession of the plot together with shed was given to late M.Venkata Ramana Rao. He established industry in the name and style of M/s. Santhoshi Metal Works, Karimnagar and obtained loan for purchasing machinery from AP State Small Scale Industrial Development

Corporation Ltd., Hyderabad (in short ‘APSSIDC’). M.Venkata Ramana Rao started unit in manufacturing of Aluminium Utensils in the shed.

4.2Maddineni Venkata Ramana Rao could not run the industry due to lack of finance as such he could not pay the monthly installments to the Corporation of first

Page 4 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar defendant and also to APSSIDC. Notices were issued for cancellation of allotment.

At that time, M.Venkata Ramana Rao requested plaintiff to join as partner in the firm, at request of M.Venkata Ramana Rao, he became partner in M/s. Santhoshi

Metal Works on and with effect from 14.10.1988 with agreed share of M.Venkata

Ramana Rao as 51% and that plaintiff as 49% and the profits and losses shall be shared proportionately. M.Venkata Ramana Rao appointed plaintiff as GPA vide

Doct. No.24 of 1994 dt.01.02.1994 to manage the business of M/s. Santhoshi Metal

Works. M.V.Ramana Rao constructed another shed and left it without laying roof.

Deed of partnership of M/s. Santhoshi Metal Works was registered in the office of

Registrar of Firms, Hyderabad vide certificate No.02041/94 dt.01.03.1994.

4.3The General Manager, District Industries Centre, Karimnagar as per the deed of Partnership and on the application submitted by M.V.Ramana Rao on 31.01.1994, made an endorsement No.B2/10673/88 on 15.12.1988 in the certificate of permanent registration showing M.V.Ramana Rao and plaintiff as partners. There was a memorandum of understanding between M.V.Ramana Rao and plaintiff on 14.10.1988. Under which plaintiff agree to purchase the unit M/s. Santhoshi Metal

Works together with shed and another incomplete shed and land measuring 980 Sq

Yd and it was agreed that plaintiff shall discharge the loan amount in the

Corporation of first defendant and M.V.Ramana Rao shall register his 51% share in favour of plaintiff on payment of balance sum after discharging the loan amount of

Machinery. It was further agreed that the necessary expenses for registration of 51% share shall be borne by plaintiff and in this regard, another agreement was executed between plaintiff and M.V.Ramana Rao on 09.12.1988.

4.4As agreed upon, plaintiff paid the installments to defendants No.1 to 3. By 20.09.1994, plaintiff fully paid amounts in the office of defendants and no amounts

Page 5 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar were due towards the cost of 980 Sq Yd plot and the shed. In all sum of Rs.66,546/- were paid as against the original cost of Rs.35,227/- as admitted by defendant No.3 on 12.07.1994. As per demand of defendants No.1 to 3, plaintiff paid a sum of

Rs.6,595/- on 20.09.1994 to defendants No.1 to 3 being the outstanding balance cost of Store Shed, restoration charges etc., as on 15.09.1994. Plaintiff and M.V.Ramana

Rao estimated the value of land, sheds and machinery of M/s. Santhoshi Metal

Works at Rs.1,14,200/- in which 51% share of M.V.Ramana Rao was worked out to

Rs.58,242/- and the share of plaintiff was worked out to Rs.55,968/-. As agreed upon, plaintiff paid a sum of Rs.44,100/- to M.V.Ramana Rao being the value of his 51% share.

4.5Approximately a sum of Rs.26,000/- and odd was due towards the principal amount of loan on machinery and the same was payable to APSSIDC, Hyderabad and interest there on was also payable. Therefore, no amounts are due and payable to M.V.Ramana Rao. M.V.Ramana Rao having received the money, relinquished all his rights over the plot measuring 980 Sq Yd, Stores sheds and M/s. Santhoshi Metal

Works. M.V.Ramana Rao was no more partner in the Firm. He was not having any subsisting interest in the plot measuring 980 Sq Yd, Stores Sheds situated in

Industrial Estate, Karimnagar. M.V.Ramana Rao died on 24.12.1994 in a road accident at Vanasthalipuram, Hyderabad.

4.6Defendant No.5 is the 2nd wife of late M.V.Ramana Rao, the marriage having been performed on 18.11.1976 in Arya Samaj, Gowliwada, Hyderabad. Defendant

No.4 is first wife of late M.V.Ramana Rao. The deed of partnership being at will and there being no clause for continuing the partnership business with the legal heirs of deceased partner, the partnership has come to an end. Hence, plaintiff became sole Proprietor of M/s. Santhoshi Metal Works, Karimnagar apart from becoming an

Page 6 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar absolute owner of 980 Sq Yd plot together with sheds situated in Industrial Estate,

Karimnagar. Therefore, defendants No.4 & 5 have no claim, right, interest and share over said property.

4.7Plaintiff was not aware of cancellation of allotment letter issued by defendant

No.2 on 07.04.1986 made to late M.V.Ramana Rao, for the reason that plaintiff has not joined as partner by then. Plaintiff represented on 12.07.1994 before defendants

No.1 to 3 for restoration of allotment of land and shed made in favour of

M.V.Ramana Rao. Defendant No.2 asked plaintiff by letter

No.B/IDOW/IE-KNR/111/81 dt.13.07.1994 to pay the penalty, process fee and legal expenses in OS 22 of 1987. Said amount was paid by plaintiff. Thereafter, defendant No.2 in his letter dated 18.02.1995 sought for particulars from plaintiff to produce death certificate of M.V.Ramana Rao, legal heir certificate, consent from legal heirs, to file fresh partnership, if any and to produce other legal document so as to take further action for restoration of allotment.

4.8Defendants No.1 to 3 did not transfer the sheds and 980 Sq Yd of land at

Industrial Estate, Karimnagar by executing document in favour of plaintiff because of the objection raised by defendants No.4 & 5. The Senior Manager of the office of defendant No.1 by letter No.34643/De/D9/KNR/80 dt.05.12.1997 informed plaintiff that defendants No.4 & 5 requested to transfer the allotment of shed and land in their favour. They informed plaintiff that execution of sale deed in his favour cannot be considered. Defendant No.2 by letter No.IDOW/IE-KNR/111/81/766 dt. 22.05.1988 called for remarks from plaintiff on the legal notice issued on 24.03.1998 on behalf of defendant No.5. Plaintiff gave reply on 06.06.1998 explaining the facts and about the relinquishment of rights by M.V.Ramana Rao in favour of plaintiff while

Page 7 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar agreeing to receive his share of money in the partnership business and the value of land, sheds etc.

4.9It is also stated in reply that defendants No.4 & 5 probably might not be knowing about the earlier agreements between M.V.Ramana Rao and plaintiff and as such the claim of defendants No.4 & 5 for transfer of shed and land is not maintainable and further requested to transfer the land and shed in his name by executing a document. Thereafter, defendant No.2 directed plaintiff and defendants

No.4 & 5 to approach the Civil Court for claiming transfer of shed and land in

Industrial Estate, Karimnagar letter dated 27.07.1998 informing that defendant No.4 informed that she is not interested in going to court or indulge in protracted litigation in claiming the property and as such the dispute between plaintiff and defendant

No.5 and directed them to settle the issue.

4.10A similar letter was also issued by defendant No.2 on 26.09.2000 and the matter could not be settled between plaintiff and defendant No.5 though in fact defendant No.5 is not having any subsisting interest in the property. On 16.05.2001, defendant No.5 got issued a legal notice through A.Kishan, Advocate denying the rights of plaintiff in M/s. Santhoshi Metal Works, Karimnagar and land and also requested defendants No.1 to 3 to register the name of defendant No.5 as owner of

M/s. Santhoshi Metal Works alone as sole proprietor. Defendant No.5 did not claim rights in shed and plot measuring 980 Sq Yd.

4.11Defendant No.2 by letter dated 25.05.2001 informed the advocate for defendant to approach the Court of law for her grievance. Defendants No.4 & 5 have no right in shed and 980 Sq Yd of land situated at Industrial Estate, Karimnagar and also Industry M/s. Santhoshi Metal Works, Karimnagar as such defendants No.4 & 5 are not entitled to claim any rights over the property. Defendants No.4 & 5 are

Page 8 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar estopped under the law from claiming rights in said land measuring 980 Sq Yd and the Industry. Plaintiff paid the value of share of M.V.Ramana Rao, claiming he became absolute owner of sheds and plot and sole Proprietor of M/s. Santhoshi

Metal Works. Plaintiff has been in possession of sheds, land and the Industry together with machinery. Even during his life time, M.V.Ramana Rao has not been in possession of shed and land and the industry. Refusal of defendants No.1 to 3 for transferring the allotment of shed and land and executing sale deed in favour of plaintiff is an arbitrary action and the same is unsustainable. Hence, the suit.

Written Statement averments of defendants No.1 to 3:

5.1The AP Industrial Infrastructure Corporation Limited (APIIC), Hyderabad (in short ‘Corporation’) is a company registered under the Companies Act, 1956 with its registered office at No.5-9-58/B, Parisrama Bhavanam, 6th Floor, Basheerbagh,

Hyderabad-500004. It is wholly owned undertaking of Government of AP. The main objects of the Corporation amongst others are to acquire lands and to develop the lands with all infrastructural facilities into industrial areas. The developed plots and ready built shed in the Industrial Areas are allotted by the Corporation to entrepreneurs for utilizing the same for Industrial purposes.

5.2Plaintiff is a stranger to the Corporation, he was not recognized by the

Corporation either as a partner or Proprietor of M/s. Santhoshi Metal Works to whom the suit premises was allotted by Corporation and whose Proprietor is

M.Venkata Ramana Rao. Plaintiff do not have any nexus or contract with

Corporation in regard to allotment and lease cum sale agreement dated 23.02.1982 executed by M.Venkata Ramana Rao with the Corporation. Plaintiff cannot claim any right or interest in the suit premises under the alleged partnership deed dated 14.10.1988 or the General Power of Attorney dated 01.02.1994. Plaintiff did not

Page 9 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar claim possession of suit premises under law. Any occupation of suit premises of plaintiff is unauthorized and he is liable to be evicted therefrom. Appropriate steps under law would be initiated by the Corporation against plaintiff.

5.3One M.V.Ramana Rao was allotted plot area 980 Sq Yd and Stores shed and

Stores shed having plinth area 652.69 Sq Yd on hire purchase basis vide allotment order No.34643/DW/DD-2/80 dt.04.02.1981 for the line of activity/Manufacture of

Aluminium Utensils. Costs of shed together with land was fixed at Rs.35,227/-.

Physical possession of the same was handed over to late M.Venkata Ramana Rao on 28.02.1981 and M.V.Ramana Rao paid 10% down payment of Rs.3,527/- and entered into Hire purchase Agreement on 23.02.1982. Hire purchase installments commenced with effect from 01.03.1981. The ownership of suit plot and shed premises still vests with the defendants Corporation only as no sale deed was executed in favour of anybody including said M.Venkata Ramana Rao.

5.4The allottee late M.Venkata Ramana Rao executed a Lease-cum-Sale

Agreement on 23.02.1982 and the possession of shed and plot was delivered to said late M.Venkata Ramana Rao on payment of Hire purchase installments. As per the terms of the Lease cum sale agreement dated 23.02.1982 particularly clauses No.11 and 21, the allottee is required to pay the Hire Purchase installments in advance on or before 5th of each month and should not keep the shed/plot idle for more than a month without utilizing the shed and plot for the purpose for which it was allotted.

Clause No.32 of Lease cum Sale Agreement provides for reentry upon the premises by defendant Corporation and to resume possession of the premises, in case allottee commits breach of any of the conditions of lease cum sale agreement, determining the agreement and forfeiting the amounts paid towards use and occupation of premises.

Page 10 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar 5.5It is true that M.Venkata Ramana Rao admitted plaintiff as a partner vide

Partnership deed dated 14.10.1988 and gave him 49% shares in the firm M/s.

Santhoshi Metal Works. The same was not approved by defendants No.1 to 3

Corporation. It is true that M.Venkata Ramana Rao gave General Power of Attorney to plaintiff vide document No.24 of 1994 dt.01.02.1994. Partnership Firm was registered vide No.02041 of 1994 in the office of Registrar of Firms AP, Hyderabad and the General Manager District Industries Centre, Karimnagar endorsed on the permanent SSI Registration certificate on 15.12.1988. It is true that M.Venkata

Ramana Rao constructed another shed in the suit premises and left it without laying roof.

5.6It is true that defendants Corporation received hire purchase installments under lease cum sale agreement dated 23.02.1982 from M/s. Santhoshi Metal Works.

As per Corporation record, M.Venkata Ramana Rao died in a Motor vehicle accident at Hyderabad on 24.12.1994. He married twice and is having two wives i.e., defendants No.4 & 5 who are widows. As per conditions of Lease cum sale agreement dated 23.02.1982, the allottee is not entitled to effect change in constitution in his Firm, part with the possession of land without obtaining prior written permission of the Corporation. Corporation did not grant approval for change in constitution from proprietary to partnership or from partnership to again proprietor.

5.7As per conditions of lease cum sale agreement dated 23.02.1982, mere payment of hire purchase installments to the Corporation would not automatically accrue legal ownership or title over the suit property unless it is conveyed through proper and legal sale deed by the Corporation. Till such time the ownership and title of the property continues to vests within the Corporation.

Page 11 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar 5.8It is true that allotment of Stores shed/land made in favour of M.Venkata

Ramana Rao was canceled on 07.04.1986. It was canceled for breach of terms and conditions of hire purchase agreement i.e., for non-payment of hire purchase installments. The alleged partnership entered between plaintiff and M.V.Ramana

Rao i.e., allottee was not approved by defendants Corporation. It is true plaintiff submitted a representation to defendant No.2 on 12.07.1994 for restoration of allotment and for approval of change in constitution of Firm from proprietary to partnership concern as per the General Power of Attorney document No.24 of 1994 executed on 01.02.1994 by the allottee in favour of plaintiff.

5.9It is true that defendant No.2 addressed a letter to the unit i.e., M/s. Santhoshi

Metal Works on 13.07.1994 for payment of balance hire purchase due penalty for restoration of allotment, process fee for approval of change in constitution and also legal expenses in OS 22 of 1987. Defendant No.2 addressed said letter in the name of the Firm but not in the name of plaintiff, since he was not stranger to the

Corporation and he was not recognized by the Corporation as partner of the

Santhoshi Metal Works. Corporation has not made any correspondence with plaintiff in his name or as the partner of the allottee Firm as alleged in the plaint.

Due amounts were paid by the Firm and the receipts were also issued in favour of firm M/s. Santhoshi Metal Works only.

5.10It is true that original allottee M.Venkata Ramana Rao informed to defendant

No.3 through his letter dated 19.09.1994 stating that he canceled the General Power of Attorney given to plaintiff and requested the Corporation not to enter into any agreement with plaintiff. It is true that said allottee gave two letters dated 20.09.1994 and 22.09.1994 to defendants Corporation expressing his intention to surrender of Stores shed and land due to his ill health and requested the Corporation

Page 12 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar to take over the property and to re-allot said property to any other needy entrepreneur. It is true that defendant No.2 addressed a letter to plaintiff on 18.02.1995 informing about the cancellation of General Power of Attorney and also intention of original allottee in respect of said property.

5.11It is true that M.Venkata Ramana Rao died on 24.12.1994. The Corporation requested plaintiff to produce Death Certificate, legal heir certificate and consent letter from the legal heirs and to furnish other legal documents like fresh partnership deed etc., to take further action, but plaintiff failed to do so. The Corporation informed to plaintiff that the execution of sale deed in his favour cannot be considered as he is stranger to the Corporation and he did not furnish the required documents etc. Corporation also advised plaintiff and two wives of late M.Venkata

Ramana Rao to settle the matter in the Court of law since defendant No.5 protested for issue of consent for approval of change in constitution in favour of plaintiff i.e., recognizing the plaintiff as partner or Proprietor of Santhoshi Metal Works. Hence, the suit may be dismissed.

Written Statement averments of defendant No.5:

6.1Defendant No.5 is legally wedded wife of M.Venkata Ramana Rao. Their marriage took place on 18.11.1976 at Aryasamaj Mandir, Gowliguda, Hyderabad.

Late M.Venkata Ramana Rao was allotted a plot ad measuring 980 Sq Yd in

Industrial Estate, Karimnagar under hire purchase cum lease basis vide allotment letter No.34643/DW/DD-2/80 dated 04.02.1981 by the General Manager, APIIC,

Hyderabad for a sale consideration of Rs.35,200/- for the purpose of establishment of Industry under the name and style of M/s. Santhoshi Metal Works, Karimnagar.

Page 13 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar 6.2M.V.Ramana Rao had similar joint family business at Warangal under the name and style of M/s. Modern Metal Works, Warangal and through which the raw material used to be brought to M/s. Santhoshi Metal Works at Karimnagar. Plaintiff used to run a shop of aluminum utensils at Tower Circle, Karimnagar came to contact with M.V.Ramana Rao and started to purchase utensils from the industry of

M.V.Ramana Rao. As day by day, the business of M.V.Ramana Rao was going on in proper manner by yielding profits, M.V.Ramana Rao raised three sheds by expending an amount of Rs.1,00,000/-. He himself cleared off all the monthly installments to defendants No.1 to 3. Meanwhile, Maddineni Gopal Rao father-in- law of defendant No.5 was attacked with paralysis, as such he could not run his family business in the name and style of M/s. Modern Metal Works, Warangal. As such husband of defendant No.5 started running its business.

6.3M.V.Ramana Rao was entrusted with said business and was entrusting same sort of industry work, upon the plaintiff. M.V.Ramana Rao gave much time for his family business. By taking undue advantage of absence of husband of defendant

No.5, plaintiff swallowed the bill amounts and created documents by forging the signatures of M.V.Ramana Rao. As such manufacturing operations of M/s.

Santhoshi Metal Works situated at Industrial Estate, Karimnagar have considerably fallen down and M.V.Ramana Rao could not run the industry in effective manner.

M.V.Ramana Rao cleared off all the installments to defendants No.1 to 3.

6.4On 24.12.1994, M.V.Ramana Rao died intestate in a road accident leaving defendant No.5 and her children namely Maddineni Harichandra Prasad aged 15 years and Kumari Vijayalaxmi aged about 12 years as legal heirs, presently aged 26 and 23 years respectively. Plaintiff discharged duties on remuneration. He is no way concerned with the other affairs of industry and further he has no right over the

Page 14 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar properties of M.V.Ramana Rao. Neither M.V.Ramana Rao admitted the plaintiff on the rolls as partner on 14.10.1988 nor M.V.Ramana Rao executed any GPA document No.24 of 1994 dated 01.02.1994 for share of 49%. Documents of plaintiff relied in this case are forged and created for the purpose of grabbing the suit property.

6.5Defendant No.5 as legal heir of M.V.Ramana Rao made her application

before defendants No.1 to 3 for the transfer of allotment of shed and land and mutate

her name as Proprietor cum owner and possessor of M/s. Santhoshi Metal Works, but in vain. Plaintiff is stranger to the property, he cannot file any suit for specific performance of contract. Defendant No.5 is entitled for the relief of getting registration of the property in her name as legal heir. The suit is devoid of merits.

After death of M.V.Ramana Rao, defendant No.5 shifted her residence to Gajwel of

Medak District by leaving important documents at Karimnagar, the same were not traced out, defendant No.5 is searching for those documents and if they were traced out, she is deserving her right to file additional written statement besides setting out a counter claim, if necessary. Hence, the suit may be dismissed.

Written Statement averments of defendant No.8:

7.1The suit is not maintainable. Defendants No.1 to 3 allotted 980 Sq Yd of plot with stores and shed in Industrial Estate, Karimnagar on hire purchase cum lease basis to Maddineni Venkata Ramana Rao through allotment letter dated 04.02.1981.

In said allotted plot M.Venkata Ramana Rao established industry by obtaining loan from AP State Small Scale Industries Development Corporation, Hyderabad for manufacturing aluminum utensils. Plaint averments that M.Venkata Ramana Rao could not run said industry due to lack of finances and could not pay the monthly installments to the Corporations, that notices were issued for cancellation of

Page 15 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar allotment, that he executed GPA on 01.02.1994 and joined plaintiff as partner with effect from 14.10.1988 with 41% share, that plaintiff agreed to purchase the suit property by repaying the loan to Corporation and that M.V.Ramana Rao agreed to execute registered sale deed for transfer of his 51% share in the partnership firm on payment of alleged balance amount after discharge of loan amount and that another agreement was entered between them on 09.12.1988, are all denied.

7.2Defendant No.5 is legally wedded wife of M.Venkata Ramana Rao. She filed

OP No.2/1997 along with her children claiming issuance of succession certificate

under Section 372 of Indian Succession Act before the Court of District Munsiff,

Gajwel and the Court granted succession certificate vide orders dated 01.05.1997.

Defendant No.5 made application to defendants No.1 to 3 to record her name in respect of suit property and requested to execute registered sale deed in her favour for transfer of suit property. As per her request, defendant No.1 represented by its

Zonal Manager, Karimnagar executed a registered sale deed bearing Doct.

No.4948/2010 dt.11.06.2010 for transfer of suit property in her favour. Defendant

No.5 became absolute owner and possessor of suit property.

7.3Defendant No.5 sold suit property to defendant No.6 Akarapu Bhaskar Reddy by executing a registered agreement of sale cum GPA Doct. No.4981/2010 dt.14.06.2010 by delivering possession and defendant No.6 entered into possession of suit property. Defendant No.6 sold the suit property to defendants No.7 & 8 for valuable consideration vide registered sale deed Doct. No.11287/2011 dt.16.12.2011 and delivered possession to defendants No.7 & 8. Defendants No.7 and 8 are in exclusive possession and enjoyment of suit property. Though plaintiff got impleaded defendants No.6 to 8, did not take any steps seeking any relief of registered conveyance deed obtained by them as null and void and not binding on plaintiff. All other plaint averments in para 7 and 8 are denied.

Page 16 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar 7.4When M.Venkata Ramana Rao did not have saleable rights in the year 1988, the question of M.V.Ramana Rao entering into alleged agreement of sale does not arise. Plaintiff did not implead all the legal heirs of M.Venkata Ramana Rao. Suit is filed by plaintiff to extract money from defendants No.5 to 8 basing on false and fabricated documents. The suit is barred by limitation. Hence, the suit may be dismissed.

Written Statement averments of defendants No.6 & 7:

8.Note: As the same averments as pleaded in written statement of defendant

No.8 are taken in written statement of defendants No.6 & 7, they are not narrated again.

9.Basing on the above pleadings, learned trial Judge framed the following issues for trial:

1. Whether the plaintiff is entitled for specific performance of contract,

directing the defendants No.1 to 3 to execute a registered sale deed in his

favour in respect of 980 Sq Yd together with it’s appurtenant sheds

including the shed bearing door No.9-8-146 situated at Industrial Estate,

Karimnagar. Since he has become exclusive and absolute owner of M/s.

Santhoshi Metal Works in view of M.V.Ramana Rao the husband of D4

and D5 has relinquished all his rights over the suit property?

2. To what relief?

10.On impleadment of defendants No.6 to 8 and after they filing their written statements, the following Additional Issues were framed on 14.11.2014.

1. Whether any right accrues to defendant No.6 by virtue of agreement of sale cum GPA bearing document No.4981/10 dt.14.06.2010?

Page 17 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

2. Whether any right accrues to defendants No.7 and 8 by virtue of

registered sale deed bearing document No.11287/11 dt.16.12.2011?

3. If so, to what relief defendants No.6 to 8 are entitled?

11.During the course of trial, plaintiff examined himself as PW1 and also examined PW2 to PW5 and got marked Ex.A1 to A60. On behalf of defendants, defendant No.5 examined herself as DW2 and also examined DW1, DW3 & DW4 and got marked Ex.B1 to Ex.B12.

12.1Learned trial Judge after thorough appreciation of the fact situation as borne out by the pleadings of both sides and after discussing the oral and documentary evidence adduced by both parties, firstly regarding contract between plaintiff and

Corporation, observed that counsel for plaintiff placed heavy reliance on Ex.A4 and more particularly on the endorsement on overleaf of Ex.A4 said to have been made by the General Manager of the Corporation. Learned trial Judge observed that said entry on the reverse side of Ex.A4 appears to be very much doubtful entry for the reason that after execution of partnership deed between plaintiff and Venkata

Ramana Rao, said Venkata Ramana Rao addressed a letter to the Corporation on 16.12.1988 under Ex.A5 for changing the constitution of said firm.

12.2After discussing Ex.A5, A11 and A13 and other communication between plaintiff and the Corporation, Learned trial Judge held that the endorsement on the back side of Ex.A4 is doubtful and much significance cannot be attached to said endorsement and hence, same is kept out of the purview of consideration.

12.3Nextly, learned trial Judge observed that the counsel for plaintiff tried to impress upon the court that addressing the letters under Ex.A14 to A18 by the

Corporation to plaintiff is nothing but recognizing the right of plaintiff as partner of

Page 18 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

M/s. Santhoshi Metal Works. Learned trial Judge discussed said documents and held that in said letters, the Corporation did not recognize or accept the plaintiff either as partner or sole Proprietor of suit property and the Corporation in said letters rather advised both plaintiff and defendant No.5 to settle their rights before the Court of law.

12.4Nextly, learned trial Judge discussed Ex.B11 and B12 hire purchase and lease cum agreement of sale and observed that without specific written permission obtained from the Corporation the allottee shall be deemed to be a tenant of suit schedule property and the property shall remain the property of the Corporation and that the allottee is not entitled to assign, transfer or part with the possession of suit property and that without written permission, allottee cannot change the constitution of the firm and when there are clear restrictions imposed on the allottee, he ought not to have entered any partnership or agreement or memorandum of understandings under Ex.A2, A3 and A8 with plaintiff.

12.5Nextly, learned trial Judge observed that the Corporation addressed Ex.B2 letter dated 31.07.1996 advising plaintiff and two wives of M.Venkata Ramana Rao to settle the matter in the Court of and thus by 27.07.1998 itself, the Corporation advised plaintiff to approach court of law, despite the same, plaintiff filed the suit on 14.11.2003, which is barred by limitation under Article 54 or Article 58 of

Limitation Act, under which the prescribed time for seeking declaration is three years.

12.6Learned trial Judge next observed that plaintiff first ought to have sought declaration of his right and then only he is entitled to seek specific performance from defendants No.1 to 3 on the basis of such declaration. Learned trial Judge next observed that even by the date of commencing partnership under Ex.A3 i.e., on

Page 19 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar 14.10.1988, the allotment of suit property in favour of M.Venkata Ramana Rao was canceled, said fact is not in dispute, that the allotment in favour of either M.Venkata

Ramana Rao or plaintiff was not restored. With such and other observations, learned trial judge held that plaintiff is not entitled for declaration of title and

Dismissed the suit of the plaintiff.

13.Aggrieved by the Judgment and Decree of the trial Court, the unsuccessful plaintiff preferred this First Appeal with the following grounds:

Grounds of Appeal:

1. The impugned Judgment is bad in law and is against weight of evidence.

2. Trial Judge erred in holding that in appreciating Ex.A4 dt.15.12.1988, said document is an endorsement made by the General Manager, District

Industries Centre, Karimnagar granting permission regarding change of constitution of proprietary concern of M.V.Ramana Rao into partnership firm in the name and style of M/s “Santhoshi Metal Works” Store Shed measuring 980 Sq Yd situated at Industrial Estate, Karimnagar. The endorsement was made in discharge of official duties as such its validity cannot be doubted. Trial Judge erred in disbelieving said document.

3. Trial Judge failed to take into consideration letter dt.16.12.1988 written by

M.V.Ramana Rao to the Assistant Regional Manager APIIC Ltd.,

Karimnagar informing about change in constitution of M/s. Santhoshi

Metal Works and payment of transfer fee.

4. Trial Judge failed to consider Ex.A13 dt.18.02.1995 letter

No.B/IDOW/IE-KNR/111/81/274 through which defendant No.2 informed plaintiff that allotment of shed made to M.V.Ramana Rao has

Page 20 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar been canceled due to non payment of hire installments and that plaintiff entered into partnership with M.V.Ramana Rao on 14.10.1988 and made request for restoration of allotment order of shed.

5. Learned trial Judge failed to appreciate that defendant No.3 recognized and admitted partnership between plaintiff and M.V.Ramana Rao, it is deemed that defendants No.1 to 3 approved assignment of rights in favour of plaintiff and therefore, there is no violation of Clause in the document

Ex.B12 executed between M.Venkata Ramana Rao and defendants No.1 to 3.

6. Learned Trial Judge erred in holding that the claim of specific performance is barred by limitation in the absence of specific plea raised by defendants and in the absence of issue being framed in that regard, there is no limitation for specific performance of contract of immovable property and limitation commences when performance is denied.

7. Trial Judge failed to consider letter Ex.A14 dated 20.09.1995 which is material evidence, which amply proves privity of contract between plaintiff and defendants No.1 to 3, where defendants No.1 to 3 demanded the plaintiff to clear of outstanding due amount of Rs.74,000/- failing which the amount will be recovered from plaintiff under the provisions of

AP Revenue Recovery Act. This material document was not considered by the learned trial Judge.

8. Trial Judge failed to consider Ex.A15 dated 05.12.1997, where plaintiff was informed that the request for executing sale deed in favour of plaintiff cannot be considered since there is dispute between defendants No.4 & 5.

Page 21 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

9. Trial Judge failed to consider Ex.A16 to A18 letters dated August, 1998, 25.02.1999 and 26.09.2000 respectively written by defendant No.2 to plaintiff directing him to settle the dispute with defendants No.4 & 5.

10.Trial Judge failed to consider Ex.A21 letter dated 25.05.2001 by defendant No.2 directing defendant No.5 to approach Civil Court to settle the dispute with plaintiff, but defendant No.5 did not file any proceedings against plaintiff.

11.Trial Judge failed to consider Ex.A9 dated 12.03.1992, where the General

Manager, AP Small Scale Industries, Hyderabad (APSSIDC Ltd) advised plaintiff to settle Hire Purchase dues under revised package scheme by paying sum of Rs.26,576-68 P on or before 31.03.1992 and this document is amply proving the interest of plaintiff in the suit shed and privity of contract which entitles plaintiff to seek for specific performance against defendants No.1 to 3 for execution of sale deed by defendants No.1 to 3 in his favour.

12.Trial Judge failed to consider Ex.A1, A24, A26 to A28 and A31 to A41 receipts issued by defendants No.1 to 3 (APIIC Ltd) which prove possession of plaintiff over the suit shed and which was admitted by them in their written statement.

13.The findings given by learned trial Judge on Issue No.1 are based on conjunctions (sic conjectures), surmises ignoring material documentary evidence.

14.Trial Judge failed to appreciate that the allotment of Shed was canceled in favour of M.V.Ramana Rao and having said so in written statement that the suit shed vested in the Corporation, ought not to have executed sale

Page 22 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar deed in favour of defendant No.5, more particularly during the pendency of suit and on the strength of succession certificate Ex.B10, which shows collusion between defendants No.1 to 3 and defendant No.5.

15.Trial Judge failed to consider the oral evidence adduced by both parties and decided the suit only on the basis of documents.

16.Trial Judge failed to appreciate Ex.B10 OP No.2 of 1997 is not helpful to defendant No.5, since the court which granted the certificate lacks inherent jurisdiction to grant succession certificate in as much as the suit property is situated within the jurisdiction of the Court of Karimnagar.

Said document is void document and is not binding on the plaintiff.

17.Defendants No.1 to 3 on the basis of void document, executed sale deed and trial Judge failed to appreciate that sale deed was executed by defendants No.1 to 3 during pendency of the suit and Sec.52 of Transfer of Property Act prohibits transfer pending suit.

18.The observation of trial Judge that plaintiff impleaded defendants No.6 to 8, but did not claim any relief against them is not warranted, when defendants No.6 to 8 did not place on record the sale deeds obtained by them, they are void documents and the plaintiff need not claim any relief against them. Defendants No.6 to 8 suo motu got impleaded themselves on their application, but not on the application filed by plaintiff.

19.Trial Judge failed to appreciate that defendants No.1 to 3 having admitted possession of plaintiff over the suit property could not have delivered legal and physical possession of suit property to defendant No.5. The remedy available for defendant No.5 even under fraudulent document

Page 23 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

Ex.B10 is to file suit for recovery of possession of suit property from plaintiff.

20.The Judgment suffers from legal infirmities and it is untenable.

14.Heard arguments submitted by both side counsel. Learned counsel for plaintiff filed written arguments extensively on the lines of Grounds of Appeal and I have gone through the same.

15.Learned Standing counsel for defendants No.1 to 3 and Learned Counsel for

Defendants No.5 to 8 sought to dismiss the Appeal submitting that the trial court had rightly come to conclusion on all aspects and there are no grounds to interfere with the well reasoned Judgment of the Trial Court.

16.The points that arise for determination in this appeal are -

1. Whether the Trial court failed to appreciate the oral and documentary evidence on record in the right perspective?

2. Whether Judgment and Decree dt.01.10.2016 in OS No.170 of 2004 passed by the Learned Prl. Junior Civil Judge, Karimnagar is sustainable and if the suit of the plaintiff is liable to be decreed granting the relief of specific performance?

3. To what relief?

17.No Additional evidence is adduced by either of the parties in this Appeal.

Points No.1 & 2:

18.Sole plaintiff under the strength of documents said to have been executed in his favor by one M.V. Ramana Rao, sought to direct the defendant No.1 to 3

Corporation to allot the suit plot and shed in his favor and to execute registered sale deed in his favor by recognizing him as the only partner left of the business M/S

Page 24 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

Santhoshi Metal Works, on the death of M. V Ramana Rao. Defendant No.1 to 3

Corporation did not deny the documents. They however claimed that as there was rival claim from defendant No.5, wife of late Ramana Rao, they have advised the parties to approach Court of law for settlement of dispute.

19.Defendant No.5 claiming herself as the first wife and defendant No.4 as the second wife, sought to consider alone as the legal heir of Ramana Rao and as rightful owner of the business and sought for allotment of suit plot to her and dismiss the suit of the plaintiff. It is a fact that during the pendency of the suit, the

Corporation executed sale deed in favor of defendant No.5. Defendants No.6 to 8 were impleaded as subsequent purchasers. The case of both sides can be well gathered, appreciated and understood from the documents exhibited by both sides.

20.Admitted facts of the case of allotment of suit plot and shed in favor of M. V.

Ramana Rao are that vide Allotment Lr. No.34643/DW/D02/80, dt.04.02.1981 of the General Manager, APIIC Ltd., Hyderabad, the suit plot and shed in Industrial

Estate Karimnagar was allotted to M. V. Ramana Rao to run business of industry by name M/s Santhoshi Metal Works which deals with manufacture of aluminum utensils. The admitted particulars of allotment and delivery of possession of shed and payment of installments, subsequent cancellation of allotment as detailed in

Ex.A12 are as follows:

1. Date of Handing over Possession of the shed:28.02.1981

2. Date of execution of Hire purchase Agreement:23.02.1982

3. Date of cancellation of allotment:07.04.1986

4. Cost of the Stores shed with 980 Sq Yd:Rs.35,227-00

5. Hire Purchase installments:120 months 1st monthly installment:Rs.502-00

Page 25 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar 2nd & Subsequent Installment:Rs.422-00

6. Date of commencement of Hire purchase installments:28.02.1981 as per DCB Ledger.

21.The documents exhibited by both sides are discussed here. Ex.A2 is filed as suit Agreement of sale dt.09.12.1988 executed by M.Venkata Ramana Rao. As the document was unstamped, stamp duty and penalty was assessed and collected by the

Court. As per this document, it was entered into between M.Venkata Ramana Rao and plaintiff Mallyala Venkataiah and it is an Agreement. As per this agreement,

M.Venkata Ramana Rao got Industry by name M/s. Santhoshi Metal Works at

Industrial Estate, earlier there was agreement on 14.10.1988 under which plaintiff purchased the Industry, that name of plaintiff M. Venkataiah is recorded in SSI (Small Scale Industry) registered certificate and name of plaintiff should be entered in the place of M.Venkata Ramana Rao by paying Rs.20,000/- to M.Venkata Ramana

Rao.

22.Ex.A2 agreement also reads that the name of plaintiff and M.Venkata Ramana

Rao should be recorded in APIIC and the loan before APIIC before it was not repaid, that plaintiff should discharge the loan and register names of himself and M.Venkata

Ramana Rao in APIIC and after that within 10 days, M.Venkata Ramana Rao should register his 51% share in favour of plaintiff under registration, that after assessing the loan on machinery, plaintiff should pay the remaining amount on the date of registration, that plaintiff will bear the registration charges.

23.Ex.A3 is filed as Deed of Partnership between plaintiff Mallyala Venkataiah and M.Venkata Ramana Rao. It is seen that under this document, plaintiff and

M.V.Ramana Rao entered into Deed of Partnership for manufacturing Aluminum

Utensils in the allotted store ad measuring 980 Sq Yd at Industrial Estate,

Page 26 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

Karimnagar in the name and style of M/s. Santhoshi Metal Works. Relevant clauses of this Deed of Partnership are as follows:

The name of the Firm shall be M/s. Santhoshi Metal Works.

The place of business shall be at the Store Shed and appurtenant open space in the Industrial Estate near Padmanagar (Ramnagar locality) of Karimnagar as allotted and handed over by the Assistant Regional Manager APIIC Ltd.,

Industrial Estate Karimnagar.

The aims and objects of the Firm's business shall be to carry on manufacturing in Aluminum Utensils and sale of the same at Karimnagar and the Firm may carry on any other business that be may be found profitable.

There shall be no fixed capital to the Firm. The party of first part shall carry forward his earlier contribution as his share of capital 51,000/- which is proportionate to 51% share capital and the other party shall invest 49,000/- equal to 49% share capital in the total capital of the Firm.

Both the parties shall be competent to borrow funds either from the scheduled commercial banks, APSFC or any other Corporations and for this purpose, both the parties shall be eligible to enter into an agreement with the financing

Agencies.

The profits or losses of the partnership shall be divided or borne in the following manner:

First Party ……. 51%

Second Party…..49% The partnership shall be “At Will”.

Page 27 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

24.Ex.A4 is filed as Duplicate Certificate issued by General Manager, District

Industries Centre, Karimnagar. As per Ex.A4, which is certificate for permanent registration given by the Department of Industries, M/s. Santhoshi Metal Works,

Industrial Estate, Karimnagar, Proprietor M.V.Ramana Rao is a Small-Scale

Industrial unit registered with the Department of Industries with registration

No.01/09/01764/PMT/SSI dt.06.01.1982. The purpose of the SSI is given as

Manufacturing of Aluminum Utensils. Date of commencement is given as 08.09.1981. There is an endorsement on the reverse of Ex.A4 under the signature and seal of General Manager, District Industries Centre, Karimnagar, which reads as follows:

“Permission is hereby granted to change of the constitution of the firm from Proprietary ship of M.V.Ramana Rao to Partnership concern with Sri M.V.Ramana Rao and Sri M. Venkataiah both as Managing Partners. ”

25.Ex.A5 is letter addressed by M/s. Santhoshi Metal Works, Proprietor

M.Venkata Ramana Rao dated 16.12.1988 to the Assistant Regional Manager, APIIC

Ltd., Industrial Estate, Karimnagar. The subject is change of constitution of the

Firm from “Proprietor” to “Partnership”. The references given are (1) Partnership

Deed dated 14.10.1988 and (2) PMT SSI No.01-09-01764/PMT/SSI dt.06.01.1982 duly approving the change on 15.12.1988. Reference No.2 is apparently Ex.A4 discussed above. Ex.A5 is on printed letter head of M/s. Santhoshi Metal Works,

Industrial Estate, Karimnagar. In this letter, M.Venkata Ramana Rao informed

APIIC that he took Mallyala Venkataiah as his partner giving 49% share in his

Industrial unit and requested the Corporation to kindly get the changes approved for which necessary fee of Rs.500/- was paid vide RT.No.041697 dt.16.12.1988, that he also enclosed three copies of partnership deed and three copies of SSI registration

Page 28 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar certificate. There is a seal and signature of Assistant Regional Manager, APIIC Ltd., in acknowledgment of receipt of Ex.A5 letter on 16.12.1988.

26.Ex.A6 is letter dated 22.08.1994 addressed by the Assistant Zonal Manager to

M/s. Santhoshi Metal Works, Store shed, Industrial Estate, Karimnagar. The subject is “payment of dues of M/s. Santhoshi Metal Works Store Shed - Approval of change in the constitution”. The two references given in this letter are 1.

Z.M.APIIC, Warangal letter even No. dt.13.07.1994 and 2. DZM, APIIC, Warangal letter even No. dt.10.08.1994. In this letter, the Assistant Zonal Manager invited the attention of M/s. Santhoshi Metal Works, where they were called to clear of the dues, that the office of APIIC considered subject of approval of change in the constitution of M/s. Santhoshi Metal Works and they again requested to clear the dues which are given as follows:

1. Penalty for restoration of allotment Rs.2,000-00

2. Process fee for approval of change in the constitution Rs. 500-00

3. Legal expenses in OS No.380/82/22/87 Rs.2,150-00

4. Annual Maintenance charges upto 93-94 Rs.2,002-80 ---------------- Total Rs.6,652-80 ----------------

27.Ex.A7 is certificate dated 07.01.1989 issued by the General Manager, District

Industries Centre, Karimnagar in favour of M.V.Ramana Rao S/o Gopal Rao,

Proprietor of M/s. Santhoshi Metal Works, IE, Karimnagar certifying that he had cleared the entire loan amount including interest and Principal worked out on 30.11.1988 and that there is no due to Government under said scheme.

28.Ex.A8 is filed as another agreement dated 12.01.1989 between plaintiff and

M.V.Ramana Rao. It refers to the earlier partnership agreement dated 14.10.1988.

Under this agreement, it is mentioned that from the next day the business will be

Page 29 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar conducted only by second party i.e., plaintiff and the first party has no role. It also reads that the second party should secure the fundsfor running the industry and the first party will not have any authority over the raw material or finished product lying in the factory premises, that the second party shall pay the electricity, water and other bills connected to running the industry.

29.Ex.A9 is letter dated 12.03.1992 addressed to the plaintiff by General

Manager (Development), APSSIDC Ltd. It is to be noted here that this letter was addressed by name to the plaintiff and not to M/s Santhoshi Metal Works. The subject is “settlement of hire purchase dues under revised method of package scheme”. In this letter, APSSI firstly informed that the Corporation extended the package scheme settlement, that under revised package method scheme after allowing 25% interest concession, plaintiff has to pay Rs.26,576.68 to the

Corporation as on 31.03.1992, subject to approval by their Accounts Division. It is also to be noted that the letter also requests the plaintiff to pay the amount at the earliest possible and avail the concessions.

30.Ex.A11 is another letter dated 31.01.1994 addressed by M.Venkata Ramana

Rao as proprietor/partner of M/s. Santhoshi Metal Works to the Zonal Manager, AP

Industrial Infrastructure Corporation Limited, Industrial Estate, Karimnagar. The contents of this letter are very significant to note. In this letter, M.Venkata Ramana

Rao referring to his earlier letter dated 16.12.1988 again sought for restoration of allotment and approval of change of constitution of M/s. Santhoshi Metal Works. He further stated that they have already sought for approval of change of constitution and to restore the allotment vide letter dated 16.12.1988, that he came to understand that the Corporation did not approve any change of constitution of Firm, unless, the suit filed by him against the Corporation in respect of 1272 Sq Yd allotted and

Page 30 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar canceled in his favour (sic) was dismissed. Mr. Venkata Ramana Rao further informed in this letter that the suit was already dismissed and that he came to know that the disputed land was allotted to a needy entrepreneur, that he was away from

Karimnagar and went to his native place due to some of his own problems, but he returned to Warangal one week back and came to know that the change in constitution of his Firm is yet to be approved, that he was away from Karimnagar and Warangal, that his co-partner M. Venkataiah was running the industry. By this letter, M.Venkata Ramana Rao requested the Corporation to approve the change in constitution of his Firm from proprietary to partnership with M. Venkataiah i.e., plaintiff as his partner, so that he can pay the hire purchase installments and execute the agreement with M. Venkataiah. It is seen that copies of Ex.A11 were given to

Managing Director, APIIC, Hyderabad and Assistant Zonal Manager (Development), APIIC Ltd., Industrial Estate, Karimnagar.

31.Ex.A12 appears to be the reply given by Assistant Zonal Manager (D) to

Ex.A11 letter, though it is not in the manner of letter. It gives a list containing details of M/s. Santhoshi Metal Works like details of allotment, handing over possession etc.,. At the cost of repetition, they are shown here again which are as follows:

1. Allotment Lr. No.34643/DW/D02/80, dt.04.02.1981 of the General Manager, APIIC Ltd., Hyderabad.

2. Date of Handing over Possession of the shed:28.02.1981

3. Date of execution of Hire purchase Agreement:23.02.1982

4. Date of cancellation of allotment:07.04.1986

5. Cost of the Stores shed with 980 Sq Yd:Rs.35,227-00

6. Hire Purchase installments:120 months 1st monthly installment:Rs.502-00

Page 31 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar 2nd & Subsequent Installment:Rs.422-00

7. Date of commencement of Hire purchase installments:28.02.1981 as per DCB Ledger.

32.From the particulars given in Ex.A12 letter, it is gathered that as per the records of APIIC, payments were made in cash as well as cheque from 17.07.1980 to 12.07.1994. There is also specific mention that fee of Rs.500/- was paid by M/s.

Santhoshi Metal Works, Stores shed, Karimnagar vide receipt No.041697 dated 16.12.1988 realized on 17.12.1988, for change in constitution of the Firm.

33.Ex.A10 is filed as General Power of Attorney executed by M.Venkata

Ramana Rao as partner of M/s. Santhoshi Metal Works appointing the plaintiff as his

General Power of Attorney in respect of business in M/s. Santhoshi Metal Works.

34.Ex.A13 is letter dated 18.02.1995 addressed by the Zonal Manager, APIIC

Limited, Industrial Estate, Warangal to the plaintiff, both at his residential address and Industrial address M/s. Santhoshi Metal Works, Stores shed, Industrial Estate,

Karimnagar. The subject is allotment of store shed to M/s. Santhoshi Metal Works.

In this letter, the Zonal Manager states that the allotment was made in favour of

Proprietor M.Venkata Ramana Rao on hire purchase basis, subsequently the allotment was canceled due to non-payment of hire purchases dues, later plaintiff entered into partnership with M.V.Ramana Rao as per deed dated 14.10.1988 and requested for restoration of allotment, that plaintiff also got Power of Attorney from

M.V.Ramana Rao.

35.The letter also mentions that in the meantime, M.V.Ramana Rao informed them vide letter dated 19.09.1994 that the Power of Attorney given to M. Venkataiah was canceled due to misbehavior and misuse of the same and informed them not to enter into any agreement with M. Venkataiah plaintiff towards his unit and that

Page 32 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

M.V.Venkata Ramana Rao is desirous of handing over the shed to the Corporation vide letter dated 29.09.1994 and as such the partnership was not approved by the

Corporation. It is further mentioned in this letter that they came to know that

M.Venkata Ramana Rao expired on 24.12.1994 in an accident at Hyderabad.

36.The Corporation under Ex.A10 letter called upon the plaintiff to furnish documents viz., 1. Death Certificate of late M.V.Ramana Rao 2. Legal heir certificate from the competent authority of legal heirs of late M.V.Ramana Rao

3. Consent/affidavit from the legal heirs of late M.V.Ramana Rao 4. Fresh partnership, if any, from the legal heirs of late M.V.Ramana Rao and 5. Any other legal documents with regard to approvals and restoration of allotment of Store shed etc..

37.Ex.A14 is letter dated 20.09.1995 addressed by Deputy General Manager

APSSIDC Ltd., to plaintiff at residence address of plaintiff. The subject of this letter is clearance of HP loan of M/s. Santhoshi Metal Works. Reference given is partnership deed dated 14.10.1988. In this letter, APSSIDC sought to bring to notice of plaintiff that commitment was given by plaintiff to pay hire purchase loan, but he failed to clear, that huge amount of Rs.74,000/- is outstanding, that they have initiated action to recover the dues under provisions of APRR Act and plaintiff is again advised to clear off the loan and collect the documents.

38.Ex.A15 is another letter dated 05.12.1997 given by Senior Manager (D),

APIIC to the plaintiff at M/s. Santhoshi Metal Works address. The subject is “allotment of Stores shed – execution of sale deed”. Reference given is letter dated 15.11.1997. In this letter, plaintiff was informed that Savithri and Susheela Rani are claiming to be the legal heirs of late M.V.Ramana Rao and they sought for transfer of subject allotment in their favour, which was not finalized by the Corporation and

Page 33 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar as such request of plaintiff to issue sale deed for Stores shed in favour of plaintiff cannot be considered.

39.Ex.A16 is letter addressed by Dy.Zonal Manager (D) to Maddineni Susheela

Rani and M. Venkataiah i.e., plaintiff. It refers to letter addressed by M.Savitri where M.Savitri informed APIIC vide letter dated 06.08.1998 that she is not interested in going to the court of law or indulge in protracted litigation in claiming the property in respect of Stores shed at Industrial Estate, Karimnagar along with liabilities or any rights attached to said unit.

40.Ex.A17 is another letter dated 25.02.1999 addressed by Zonal Manager to

Maddineni Susheela Rani and M. Venkataiah. It states that among three parties,

M.Savitri informed that she is not interested to going to court of law in claiming the property i.e., Stores shed at Industrial Estate, Karimnagar and that only M.Susheela

Rani or plaintiff are claiming the property and they are asked to settle the issue at the earliest.

41.Ex.A18 is another letter dated 26.09.2000 addressed by Zonal Manager,

APIIC Ltd., to the plaintiff. The reference is given as letter dated 19.09.2000. It was informed to plaintiff that unless the plaintiff settles the issue between himself and Susheela Rani, the Corporation cannot take any action for transfer of Stores shed.

42.Ex.A19 is letter dated 06.06.1998 addressed by plaintiff through his counsel to Zonal Manager, APIIC Ltd. This letter contains more or less the facts pleaded in the plaint. By this letter, plaintiff called upon the Corporation to transfer the suit property in their records in his name and to return the request letter of Susheela

Rani.

Page 34 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

43.Ex.A20 is notice dated 16.05.2001 which was got issued by M.Susheela Rani (defendant No.5) to plaintiff, Zonal Manager and Managing Director of APIIC Ltd., through her counsel. In this letter, she denied plaintiff being partner of the industry and stated that she is only a manager and maintaining business of industry. She called upon the Corporation to Register herself as owner of M/s. Santhoshi Metal

Works.

44.Ex.A1 is filed as allotment/offer letter dated 04.02.1981, which is in a total torn condition and CC is available on record. It is not in dispute that APIIC allotted

Stores shed with 980 Sq Yd open space at Industrial Estate, Karimnagar on hire purchase basis on application submitted by M.V.Ramana Rao M/s. Santhoshi Metal

Works dated 04.02.1981. As per this letter, the costs of the shed is fixed

Rs.35,227/-. It also gives the schedule of payment which runs into 120 monthly installments. As per Clause 5 of allotment letter, sale deed will be executed for shed only after payment of entire amount and after going into production of the approved line of manufacture as per the registration certificate issued by the Department of

Industries. As per Clause 6 of allotment letter, the allottee should execute the HP

Agreement on non-judicial stamp paper worth Rs.5/- taking possession of the shed and that allottee should furnish a valid SSI/DGTD certificate of the Company/Firm.

45.Ex.B11 is Hire Purchase Agreement dated 23.02.1982 executed between

M.Venkata Ramana Rao for M/s. Santhoshi Metal Works, Proprietor and APIIC Ltd.,

Hyderabad. This hire purchase recites that APIIC allotted Industrial Stores shed including land measuring 980 Sq Yd, which is described in the schedule, that vacant possession of shed was delivered on hire purchase agreement on 28.02.1981.As per

Clause (a), the hire purchaser agreed to pay value of costs of land, building and development as calculated by the Corporation and fixed costs of Rs.35,227/-.

Page 35 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

Clause (b) recites the same schedule payment as mentioned in Ex.A1 allotment letter. The agreement acknowledges payment of Rs.4,000/- as 10% advance cost towards down payment vide receipt No.9798 dated 15.09.1980. Clauses (e) & (f) are relied upon by the defendants’ Corporation as the clauses putting condition on transfer of possession and change in constitution or ownership. Said two Clauses read as under:

(e) Not to assign transfer, underlet or sub-let or part with possession of the demised plot/building or any part thereof first without obtaining the written consent of the Corporation.

(f) Not to change the ownership or partnership of the business relating to the factory without obtaining specific permission in writing of the Corporation.

46.There is also a clause (h) which stipulates that the allotted property should not be kept idle without production at any time for more than two calendar months except for reasons which in the opinion of the Corporation are reasonable. As per clause (i), hire purchaser has to pay Rs.400/- per annum towards maintenance of roads, street lights etc., and the installment amount has to be paid on or before fifth of every month to the Corporation. In page 5 clause 2 (b) it is recited that till such time ownership of the property is transferred to the hire purchaser, he shall be deemed to be a tenant subject to the same terms and conditions.

47.Ex.B12 is Lease cum Sale Agreement dated 23.12.1985 between the lessor

Deputy General Manager of Corporation and M.Venkata Ramana Rao, Proprietor of

M/s. Santhoshi Metal Works. As per Ex.B12, the lease cum agreement was in respect of 1272 Sq Yd open land which was allotted to first party vide allotment letter dated 27.05.1985 in pursuance of application of first party dated 11.07.1984, that the property was allotted for manufacture of aluminum sheets and circles and

Page 36 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar the land and shed is to be utilized only for the purpose of locating an Industrial

Complex. It reads that an amount of Rs.1272/- was paid by M.Venkata Ramana Rao to Corporation towards 10% of tentative costs and to pay 40% of tentative costs

before taking possession of allotted land and remaining 50% of the tentative costs

within 6 months from the date of lease and M.Venkata Ramana Rao also executed promissory note. It also mentions that time is essence of contract. Clause 16 (t) of the lease cum agreement reads as follows:

The party of the second part shall not directly or indirectly transfer, assign, sell, encumber or part with his interest in its business schedule land/sheds and the land either in part or in whole in any manner whatsoever, or sublet underlet or part with the possession of the scheduled land/shed and the land and the buildings without obtaining prior written approval from party of the first part. It shall be open to the party of the first part to grant or refuse approval or to impose any conditions if consider necessary and desirable.

48.The boundaries of this plot in the lease cum agreement are North: M/s.

Santhoshi Metal works existing land/shed; South: Open well and pump room; East:

40’ wide road; and West: Boundary of APIIC Ltd.

49.Evidently, Ex.B12 do not pertain to the suit property. There is reference to this 1272 Sq Yd plot in Ex.A11 letter addressed by M.Venkata Ramana Rao to the

Corporation. In said letter, there is reference to the suit (OS 27 of 1987) filed by M.

Venkata Ramana Rao against the Corporation. The Corporation puts a condition that it does not approve for change of constitution from proprietary to partnership, unless the suit filed by M. Venkata Ramana Rao against the Corporation in respect of 1272

Sq Yd allotted and canceled in his favour, was withdrawn, M. Venkata Ramana acknowledges said stand of the Corporation and informs that the suit was dismissed

Page 37 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar and Mr. Venkata Ramana Rao also acknowledges that this 1272 Sq Yd was allotted by the Corporation to another needy entrepreneur.

50.Ex.A23 to A42 receipts pertain to payment of amounts by M.Venkata Ramana

Rao, either to the Corporation or to the plaintiff. Ex.A23 is receipt dated 14.10.1988 issued by M.Venkata Ramana Rao towards receipt of Rs.14,200/- from

Mallyala Venkataiah as part of amount of total Rs.1,14,200/- agreed as sale consideration for price of store shed with open space of 980 Sq Yd with wall construction completed upto Roof level with Machinery allotted from the Industrial

Infrastructure Corporation Ltd., Hyderabad.

51.Ex.A24 is receipt dated 14.10.1988 issued by APIIC in favour of M/s.

Santhoshi Metal Works Stores shed towards receipt of Rs.9,437/- in cash. It is mentioned as ‘without prejudice to the action already proposed’.

52.Ex.A25 is receipt dated 09.12.1988 as per per which, M.Venkata Ramana Rao acknowledged receipt of Rs.2,500/- from M. Venkataiah on 09.12.1988 as part price amount of Rs.1,14,200/- in respect of Store shed with open space of 980 Sq Yd with wall construction completed upto roof level with machinery.

53.Ex.A26 is receipt dated 16.12.1988 issued by APIIC in favour of M/s.

Santhoshi Metal Works received Rs.500/- in cash towards fee for change of constitution from proprietary to partnership.

54.Ex.A27 is receipt dated 12.01.1989 Issued by APIIC in favour of M/s.

Santhoshi Metal Works receipt of Rs.1,880.85/- in cash for hire purchase installment dues from October, 1988 to January, 1989.

Page 38 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

55.Ex.A28 is receipt dated 16.12.1988 issued by M.Venkata Ramana Rao in favour of Mallyala Venkataiah i.e., plaintiff in token of receipt of Rs.20,000/- as part as sale consideration for the price of Store Shed with open space of 980 Sq Yd with wall construction completed upto roof level.

56.Ex.A29 is receipt dated 12.01.1989 issued by M.Venkata Ramana Rao in favour of Mallyala Venkataiah on receipt of Rs.6,500/- as part sale consideration for the price of store shed with open space of 980 Sq Yd with wall construction completed upto roof level.

57.Ex.A30 is receipt dated 20.09.1994 issued by APIIC in favor of M/s.

Santhoshi Metal Works on receipt of Rs.6,595/-. The amount received was towards cost of Rs.1942.15, penalty of Rs.2,000/-, process fee of Rs.500/- and legal charges of Rs.2,150/- by way of cheque bearing No.100818 dt.20.09.1994.

58.Ex.A31 is receipt dated 12.07.1994 issued by APIIC on receipt of Rs.19,700/- from M/s. Santhoshi Metal Works for hire purchase installment arrears of Stores shed, Industrial Estate, Karimnagar by way of cheque bearing No.100815 dt.12.07.1994.

59.Ex.A32 is receipt dated 10.01.1996 issued by APIIC on receipt of Rs.220/- by cash from M. Venkataiah M/s. Santhoshi Metal Works for property tax arrears up to 30.09.1994.

60.Ex.A33 is receipt dated 19.11.1997 issued by APIIC on receipt of Rs.960 from M/s. Santhoshi Metal Works towards property tax upto 31.03.1998.

Page 39 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

61.Ex.A34 is receipt dated 29.07.1999 issued by Assistant Zonal Manager,

APIIC in favour of M/s. Santhoshi Metal Works on receipt of Rs.250 for property tax in cash from 01.04.1998 to 31.03.1999.

62.Ex.A35 is receipt dated 29.07.1999 issued by Assistant Zonal Manager,

APIIC in favour of M/s. Santhoshi Metal Works on receipt of Rs.110/- in cash towards property tax from 01.04.1999 to 30.09.1999.

63.Ex.A36 is receipt dated 09.02.2000 issued by Assistant Zonal Manager,

APIIC in favour of M/s. Santhoshi Metal Works on receipt of Rs.150/- towards property tax from October, 1999 to March, 2000.

64.Ex.A37 to A42 are receipts from 2000 to 2002 issued by Assistant Zonal

Manager, APIIC in respect of M/s. Santhoshi Metal Works towards payment of property tax.

65.Ex.A21 is reply notice dated 25.05.2001 given by Zonal Manager, APIIC to the legal notice dated 16.05.2001 got issued by defendant No.5. D5 is claimed to be the 1st wife of late Venkata Ramana Rao. This letter was addressed by counsel for defendant No.5. In this letter, it is stated that M.Savitri W/o M.Venkata Ramana Rao stated that she is not interested to going to the court of law or indulge in Industrial

Estate and property litigation, that it was informed to defendant No.5 and plaintiff also vide their office letter dated 12.08.1998, that they have received letters dated 22.01.2000 and 26.09.2000 for defendant No.5 and plaintiff for transfer of property in their favour and that they have already advised them to permitted through court of law and they again advised the same in this letter.

Page 40 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

66.Ex.A22 is letter dated 20.07.2001 issued by Assistant Zonal Manager (D),

APIIC in favour of M/s. Santhoshi Metal Works. This was reply to letter dt.20.07.2001 from M/s. Santhoshi Metal Works, apparently, the plaintiff herein, it was mentioned in this letter that the present (then) land cost of Rs.300/- per Sq Mtr was valid up to 31.03.2002 only.

67.Ex.A43 is letter dated 04.07.1994 issued by Zonal Manager, APIIC in favour of M/s. Santhoshi Metal Works. Two references are given, one is letter dated 16.06.1994 and other letter is dated 29.06.1994 from M. Venkataiah (partner) M/s.

Santhoshi Metal Works. In this reply, the Corporation informs plaintiff that he was already requested vide letter dated 16.06.1994 to clear all hire purchase arrears and water charges and maintenance charges etc., so as to enable them to examine request of plaintiff i.e., M/s. Santhoshi Metal Works for approval of change in constitution.

It this letter, APIIC specifically stated that all the earlier outstanding arrears in respect of Stores shed should be cleared off and then only they will examine for change in constitution and if any new proposals for approvals are asked, the outstanding arrears in respect of subject allotment should be cleared.

68.Ex.A44 is letter dated 12.07.1994 addressed by M. Venkataiah to the Zonal

Manager, APIIC. In this letter, plaintiff referred to the GPA registered in his favour by the original Proprietor M.Venkata Ramana Rao as partner to the Government

Organization to sign the documents etc., that he paid the entire hire purchase arrears outstanding as on 15.07.1984 pertaining to Stores shed amounting to Rs.19,700/- vide cheque bearing No.100815 dt.12.07.1994, that as he paid entire hire purchase installment arrears and they are not in dues of any kind to APIIC Ltd. In this letter, plaintiff requested the Corporation to restore allotment orders and to approve change in constitution as per partnership deed dated 14.10.1988. It specifically states that

Page 41 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar they have to execute agreement of sale for shed and sale deed immediately, the sale deed is immediately required for them to raise the finances from the financial institutions to run their industry smoothly.

69.Ex.A45 is reply dated 13.07.1994 given by Zonal Manager, APIIC to the M/s.

Santhoshi Metal Works. The entire letter has to be extracted for better appreciation -

With reference to your request for approval of change in constitution, it is to be informed that the same can be considered subject to the following terms and conditions:

1. At the first instance the allotment which was canceled on 07.04.1986 is to be restored for which a penalty of Rs.2,000/- is to be paid.

2. That the process fee of Rs.1,000/- is to be paid in full, less Rs.500/- paid already.

3. That the legal expenses in OS 22/1987 filed by you has to be paid which will be intimated to you separately.

4. That any dues like maintenance and water charges if any has to be paid/cleared.

You are, therefore, requested to comply with the above immediately.

70.It is seen from above letter that the APIIC did not straight away decline for restoration of allotment nor they declined to approve the change in constitution of

M/s. Santhoshi Metal Works. On the other hand, they have put the above conditions which are payments to be made like penalty, process fee etc. It is also interesting to note that initially vide Ex.A26, they have received process fee of Rs.500/- and again they increased the process fee to Rs.1,000/- while acknowledging payment of

Rs.500/- process fee. There is also reference to OS 27/1987, it is seen from Ex.A11 dt.31.01.1994 itself, M.Venkata Ramana Rao was made to understand that the

Corporation did not approve for change of constitution from proprietary to

Page 42 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar partnership unless the suit filed by him against the Corporation in respect of 1272 Sq

Yd allotted and canceled in his favour was withdrawn. M.Venkata Ramana Rao also brought to notice of the Corporation that said suit was already dismissed and he came to know that the land was also allotted to needy entrepreneur. Thus, 6 months after, M.V.Ramana Rao addressed a letter under Ex.A11 requesting for change in constitution of the Firm and showed his readiness to pay the arrears of hire purchase installments and executed agreement with his partner M. Venkataiah, the

Corporation asked M/s. Santhoshi Metal Works to pay the legal expenses incurred for OS 22/1987 filed by M/s. Santhoshi Metal Works against the Corporation and the amount will be intimated shortly.

71.Ex.A46 is another letter dated 10.08.1994 issued by Dy. Zonal Manager,

APIIC to M/s. Santhoshi Metal Works which was in continuation of Ex.A45. In this letter, the Corporation requested to make payment of legal expenses of Rs.2,150/- (OS No.380/82 for Rs.700/- and OS No.22/87 for Rs.1,450/- total Rs.2,150/-) along with other payments as requested by them in their office letter dated 13.07.1994 to consider the request for approval of change in constitution.

72.Ex.A47 is Envelope in the name of addressee “M. Venkataiah, Door No.9-8- 146, Industrial Estate, Karimnagar” from the office of Zonal Manager, APIIC. The addressee is plaintiff herein.

73.Ex.A48 is letter dated 17.08.1994 issued by Zonal Manager, APIIC to M/s.

Santhoshi Metal Works. In this letter, the Corporation called upon M/s. Santhoshi

Metal Works to pay Rs.2,000/- towards penalty for restoration of allotment, Rs.500/- towards process fee for change of constitution, Rs.2,150/- towards legal expenses in

OS 380/82 and OS 22/87 and to pay the maintenance charges, water charges, if any,

and after receipt of payments, necessary orders will be issued, restoring the

Page 43 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar allotment and change in constitution approval etc. Further, the Corporation requested for early payment in the matter.

74.Ex.A49 is another letter dated 07.09.1994 addressed by Assistant Zonal

Manager, APIIC to M/s. Santhoshi Metal Works, where they have given details of dues including miscellaneous amount. They showed a total amount of Rs.6638.75 i.e., Rs.1910/- for balance cost of store shed outstanding as on 15.09.1994,

Rs.2,000/- penalty for restoration of allotment, Rs.500 for process fee for approval of change in constitution, Rs.2,150/- for legal expenses in OS 380/82 and OS 22/87 and Rs.78.75 for maintenance charges including interest from 28.02.1981 to 27.02.1986 and subsequent interest on Principal amount upto 30.09.1994.

75.Ex.A50 and A51 are filed as envelope and letter dated 04.10.1994 addressed by Corporation to the plaintiff. In this letter, plaintiff was called upon to go to their office within 15 days from the date of receipt of the letter for discussion of change in constitution and for restoration of allotment of Store shed. This letter also refers to earlier letters of plaintiff dated 29.06.1994, 12.07.1994 and another letter received in their office on 23.09.1994. This letter has to be appreciated along with contents of

Ex.A13 dated 18.02.1995. In this letter, addressed by Zonal Manager, Corporation to plaintiff, they refer to a letter dated 19.09.1994 by M.Venkata Ramana Rao and recites that M.Venkata Ramana Rao informed the Corporation vide letter dated 19.09.1994 that the General Power of Attorney given to M. Venkataiah has been canceled due to misbehavior and misuse of the same and that he informed the

Corporation not to enter into any agreement with M. Venkataiah towards his unit and that he had also informed that he was desirous of handing over the shed to the

Corporation vide letter dated 29.09.1994 and for that reason, the partnership was not approved by the Corporation.

Page 44 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

76.Interestingly, none of these facts are containing in the letter dated 04.10.1994 addressed by the Corporation to the plaintiff. If the contents of Ex.A13 letter are to be believed as true, by 19.09.1994 itself the original allottee M.V.Ramana Rao had informed the Corporation in writing that he had canceled the Power of Attorney given by him in favor of plaintiff and that he was desirous of handing over the

Stores shed to the Corporation. If that be the case, the Corporation would not issue such letter under Ex.A5 on 04.10.1994 calling upon the plaintiff to visit their office within 15 days from the date of receiving that letter for discussing regarding approval for change in constitution and for restoration of allotment of Store shed. It is also important to note that the Corporation did not file the alleged letter dated 19.09.1994 under which M.V.Ramana Rao allegedly canceled the GPA issued in favour of plaintiff and the other letter dated 29.09.1994 where under M.V.Ramana

Rao expressed his desire to handover the shed to the Corporation.

77.It is further important to note that Ex.A10 is a registered General Power of

Attorney where M.V.Ramana Rao appointed the plaintiff showing as his partner as his agent to deal with all aspects in respect of business of M/s. Santhoshi Metal

Works as per partnership deed dated 14.10.1998 and to have control of business to represent, sign and to execute any document for allocation of movable or immovable property in any State and Central Government Department such as APIIC, APSSIDC etc., on behalf of Firm. When the Agent was appointed conferring such powers under a registered Deed of Attorney, minimum requirement on part of M.V.Ramana

Rao was to issue a notice informing the cancellation of GPA to the plaintiff. There is absolutely no record to show that any such notice was issued to plaintiff intimating the plaintiff that Ex.A12 GPA was canceled. It is already observed above that the Corporation did not choose to file the alleged letters addressed by

M.V.Ramana Rao to them.

Page 45 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

78.Ex.A52 is another letter dated 10.10.1995 addressed to plaintiff by

Corporation. Evidently, this letter was in continuation of the letter Ex.A13 where under, the Corporation averred that M.V.Ramana Rao had canceled the GPA in favour of plaintiff and that M.V.Ramana Rao expressed his desire to handover the shed to Corporation. They sought plaintiff to furnish certain documents like Death

Certificate of M.V.Ramana Rao, legal heir certificate of M.V.Ramana Rao issued by the authorities concerned, fresh partnership deed by legal heirs of M.V.Ramana Rao and other legal documents. In this continuation letter Ex.A52 dated 10.10.1995,

Corporation called upon the plaintiff to furnish required information at earliest.

79.Ex.A53 is envelope in the name of plaintiff with residential address H.No.4- 2-17, Tower Road, Karimnagar from the office of Zonal Manager, APIIC.

80.Ex.A54 is another letter dated 16.11.1996 addressed by APIIC to defendant

No.5. The reference is given as letter received in their office on 28.10.1996 from defendant No.5. In this letter, defendant No.5 was asked to furnish legal certificate and succession certificate in respect of late M.V.Ramana Rao to examine the interest of defendant No.5. Thus, it is a fact that by 28.10.1996, Corporation sought to know the interest of defendant No.5 in restoration of allotment of suit Stores shed.

81.Ex.A59 is certified copy of succession certificate issued in OP12/1997 by the

Principal Junior Civil Judge, Warangal. It is seen that said succession OP was filed

by M.Savithri, M.Meenakshi, M.Gayatri and M.Radha Devi who were shown as

Widow wife and two minor daughters and mother of late M.V.Ramana Rao. Said succession certificate was granted in respect of another plot in Industrial Estate located at Mulugu road, Warangal.

Page 46 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

82.Ex.A55 is letter dated 12.07.1976 addressed by Corporation to M.V.Ramana

Rao under which, M.V.Ramana Rao was allotted shed in Industrial Estate, Warangal.

83.Ex.A56 is letter dated 11.11.1998 issued by APIIC, Warangal to M.Savithri

W/o late M.V.Ramana Rao as per which, allotment of shed No.F-7 at Warangal which was earlier allotted and canceled in favour of M.V.Ramana Rao was restored in favour of M/s. Modern Metal Corporation and the ownership is transferred in favour of M.Savithri W/o late M.V.Ramana Rao. She is defendant No.4 in the suit who is claimed by the plaintiff and the defendant Corporation as the 1st wife of M.V.

Ramana Rao.

84.Ex.A57 also pertains to the shed of M/s. Maheshwara Industries, Warangal.

Ex.A58 is letter dated 06.11.2009 addressed by Zonal Manager, APIIC, Warangal to

M/s. Santhoshi Metal Works for allotment of shed No.F-7.

85.Ex.A60 is Form-A under Rule 5, which is extract of Register of Firms maintained under Sec.58 of Indian Partnership Act 1932. It is in respect of M/s.

Santhoshi Metal Works, Karimnagar, which is entered in serial number 2041/1994, date of registration of the Firm is given as 01.03.1994, duration of Firm is given as ‘at Will’ and the address of the Firm is given as ‘New Industrial Estate, Ramnagar,

Karimnagar’. In the column of name of partners, two names are given, the 1st one is given as ‘M.Venkata Ramana Rao through Mallyala Venkataiah, Power of Attorney

Holder’ and 2nd partner is given as ‘M. Venkataiah’. Thus, as per Ex.A60, it is established that M/s. Santhoshi Metal Works was registered with the Registrar of

Firms as a Partnership Firm with two partners named above.

86.Coming to the documents exhibited by the defendants, they got marked

Ex.B1 to Ex.B12. Ex.B1 is Certificate in Form B, it is marriage certificate of

Page 47 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

M.V.Ramana Rao and defendant No.5 in which M.V.Ramana Rao is shown to be aged 19 years and defendant No.5 is shown to be aged 17 years and that the marriage was performed at Hyderabad on 18.11.1976. It is the strong case of plaintiff that defendant No.5 is second wife and defendant No.4 is the first wife, that the marriage of M.V.Ramana Rao with second wife defendant No.5 is illegal and is not valid as per law.

87.Ex.B2 is letter dated 30.07.1996 issued by APIIC, Warangal to the two counsels of defendant No.5. This letter was given in reply to the legal notice of defendant No.5 dt.09.07.1996. The Corporation under this reply notice called upon defendant No.5 to furnish particulars of death certificate of her husband, succession/legal heir certificate from the competent authority and marriage certificate of defendant No.5 from the Registrar concerned. They have also averred that earlier M.Savithri W/o late M.V.Ramana Rao said to be legal heir and M.

Venkataiah partner of M/s. Santhoshi Metal Works, Industrial Estate, Karimnagar with whom they requested to furnish certain particulars in the matter for examining the issue, but so far, they did not receive any information in this office from them and therefore, they advise defendant No.5 through her counsel to furnish the information.

88.Ex.B3 is letter addressed by defendant No.5 to APIIC, Warangal in reply to

Ex.B2 where she stated that she is the only original legal heir of M.V.Ramana Rao that she submitted death certificate i.e., inquest panchanama conducted by the SI,

Police Station, Vanasthalipuram, marriage certificate issued by Registrar of Hindu

Marriage, Hyderabad and Post Mortem Examination report. This letter was received in the office of Zonal Manager, APIIC, Warangal on 28.10.1996.

Page 48 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

89.Ex.B4 is letter dated 16.12.1996 addressed by Zonal Manager, APIIC,

Warangal to defendant No.5 calling upon to furnish legal heir certificate or succession certificate in respect of M.V.Ramana Rao for taking further action.

90.Ex.B5 is letter dated 10.06.1997 addressed by defendant No.5 to the Zonal

Manager, APIIC, Warangal, where under it is averred that she submitted legal heir certificate/succession certificate.

91.Ex.B6 is legal notice dated 24.03.1998 addressed on behalf of defendant No.5 to APIIC Zonal Manager at Warangal as well as Managing Director, APIIC,

Hyderabad. In this legal notice, it is averred that defendant No.5 is the legally wedded wife of M.V.Ramana Rao, their marriage was solemnized on 18.11.1976 at

Arya Samaj Office, Gouliguda, Hyderabad and it was registered on 19.11.1976 with

Registrar of Hindu Marriages, Hyderabad, that M.V.Ramana Rao installed small scale unit at Karimnagar in the name and style of Santhoshi Metal Works for manufacture of aluminum utensils with registration No.1/1982 dt.06.01.1982, he died on 24.12.1994 in a jeep accident within Vanasthalipuram Police Station limits, that defendant No.5 submitted applications on 31.07.1996, 16.11.1996, 16.12.1996, 06.01.1997 and got issued legal notice, that APIIC insisted upon her to submit succession certificate, that she submitted succession certificate issued by competent court of law and despite the same, APIIC did not register the name of defendant

No.5 in respect of the property and under this notice her counsel Sri A.V.Bhaskar

Rao, Advocate, Gajwel called upon APIIC to register the name of defendant No.5 in respect of the property at Karimnagar.

92.Ex.B7 is another legal notice dated 03.06.1998 got issued by defendant No.5 to APIIC through her counsel stating that APIIC did not comply with their earlier letter under Ex.B6 and through this legal notice defendant No.5 called upon APIIC

Page 49 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar to comply direction of the court as per succession certificate granted in favour of defendant No.5. It is seen that no reference is given as direction of the Court and there is no reference as to what is the direction of the Court. This Court observes that the Competent Court while granting succession certificate is not authorized nor empowered under any law to give any direction. It appears that through this notice, defendant No.5 through her counsel was trying to make APIIC comply with a direction of the Court, without in the first place, mentioning what was the direction of the Court.

93.Ex.B10 is succession certificate granted by the District Munsiff, Gajwel dated 01.05.1997. There are three petitioners viz., defendant No.5, her son

M.Harischandra Prasad and her daughter M.Vijayalaxmi. Succession certificate was granted in respect of “M/s. Santhoshi Metal Works, Industrial Estate, Proprietor concern registered No.010901764, Plot No.7, H.No.9-8-146, Industrial Estate,

Karimnagar, extent 11960 SFT = 1329 Sq Yd including sheds therein”. The succession certificate reads that the certificate was issued in respect of the above said asset M/s. Santhoshi Metal Works. Said certificate was issued for transfer of unit in the name and style of M/s. Santhoshi Metal Works, Industrial Estate,

Proprietor concerned registered No.010901764, Plot No.7, H.No.9-8-146, Industrial

Estate, Karimnagar. There is no clarity in the succession certificate if it was issued for the Stores shed at the Industrial Estate or for the business run it or for both. Law does not postulate granting Succession Certificate for immovable property.

94.The second aspect to be noted is the Succession Certificate refers to ‘M/s.

Santhoshi Metal Works, Industrial Estate Proprietor concerned”. As to who is the

Proprietor of M/s. Santhoshi Metal Works is not shown in the certificate. Evidently, by the date of filing the succession OP, the Firm was registered as a Partnership

Page 50 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

Firm with the registrar of Firms and one of the partners died. Thus, one of the partners, M.V.Ramana Rao having died in the year 1994, this succession certificate was obtained by concealing facts and thus, it has no legal validity.

95.Ex.B8 and B9 are two more letters addressed by APIIC to defendants No.4, 5 and plaintiff asking them to settle the matter before the Court of law and to approach court of law for claiming transfer of property of Stores shed at Industrial Estate,

Karimnagar. In Ex.B9, it was further mentioned that defendant No.4 M.Savithri

W/o late M.V.Ramana Rao informed vide letter dated 06.08.1998, that she is not interested in going to court of law in claiming the subject property at Industrial

Estate, Karimnagar.

96.The above documents shall be appreciated by discussing oral evidence on record. Plaintiff examined himself as PW1. Chief affidavit of PW1 is reiteration of the pleadings in plaint. He filed his chief affidavit on 08.08.2006 and he was cross examined on 04.01.2007 and on several later dates. Line of cross examination of

PW1 by learned counsel for defendants No.1 to 3 i.e., APIIC is to the effect that plaintiff did not obtain prior permission to join as partner with M.V.Ramana Rao, that as per the agreement between APIIC and M.V.Ramana Rao, there is a stipulation that the allottee shall not enter into any partnership sale or transfer of allotted property and in any case, such transfer is made, it is void. Relevant Clauses of Ex.B11 hire purchase agreement are extracted and discussed above. This court observes that there is no such stipulation in Ex.B11 hire purchase agreement requiring prior permission for taking a partner nor there is any blanket prohibition from taking a partner in M/s. Santhoshi Metal Works and as rightly submitted by learned counsel for plaintiff, it is against the stipulations in the document.

Page 51 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

97.It was further suggested to PW1 that in case M.V.Ramana Rao did not violate the terms of agreement, his successors alone can get rights and not the plaintiff,

PW1 denied the same. The Several documents between plaintiff and M.V.Ramana

Rao, exhibited by the plaintiff and discussed above, which documents were also brought to the notice of APIIC and which which were referred in the letters of the

Corporation evidence payments made by the plaintiff remained uncontradicted.

98.Nextly, PW1 was thoroughly cross examined by the learned counsel for defendant No.5. In his cross examination, regarding marriage of M.V.Ramana Rao with defendant No.5, PW1 affirmed that defendant No.5 is second wife of late

M.V.Ramana Rao, their marriage having performed on 18.11.1976 at Arya Samaj,

Gowliguda, Hyderabad and defendant No.4 is first wife of late M.V.Ramana Rao.

PW1 further stated that he got acquaintance with M.V.Ramana Rao from 1988. He admitted that previously, he used to run metal utensils business. When suggested that prior to 1988, M.V.Ramana Rao used to run a shop by name Santhoshi Metal

Works, PW1 denied the same. PW1 however admitted that prior to 1988 the suit plot was under enjoyment of M.V.Ramana Rao. Significantly, there is no suggestion to PW1 suggesting about the possession and enjoyment of suit property subsequent to 1988 and admittedly, it is in occupation of plaintiff.

99.When questioned about similar business of M.V.Ramana Rao under the name and style of M/s. Modern Metal Works, Warangal, PW1 pleaded ignorance of said fact. PW1 admitted that M.V.Ramana Rao constructed one shed, but added that roof was not laid. When suggested that M.V.Ramana Rao constructed said room with roof, PW1 denied the same. It is seen in the letters exchanged between the plaintiff and the Corporation that even as per the Corporation, M.V.Ramana Rao raised one shed but did not lay the roof. PW1 further admitted that there are three sheds in the

Page 52 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar suit land. When suggested that M.V.Ramana Rao during his life time paid all due installments, PW1 denied the same. Several correspondence letters between

M.V.Ramana Rao and APIIC discussed above amply prove that there were several payments dues and payable by M.V.Ramana Rao to APIIC by the date of his death.

100.It was suggested to PW1 that when father of M.V.Ramana Rao by name

M.Gopal Rao suffered from paralysis, during that period M.V.Ramana Rao asked

PW1 to attend the Industry taking into consideration PW1’s experience in business and that in the absence of M.V.Ramana Rao, PW1 mismanaged the accounts, that he manipulated the documents and that due to his mismanagement, said Santhoshi

Metal Works ran into losses, PW1 denied all said suggestions. PW1 stated that only on the oral request of M.V.Ramana Rao, he joined as partner. PW1 denied that the partnership deed and GPA both are forged documents.

101.It was suggested to PW1 that by the date of alleged memorandum of understanding, M.V.Ramana Rao himself did not get accrue full rights and as such if at all M.V.Ramana Rao entered into an agreement, it is void, PW1 denied the same.

It was suggested to PW1 that M.V.Ramana Rao died leaving behind the defendant

No.5 and her two children, PW1 denied the same and added that M.V.Ramana Rao left behind his two wives i.e., defendants No.4 & 5 and four children, that the children of defendants No.4 & 5 were not made as parties in the suit. It was suggested to PW1 that as he was not party to the original agreement, he is not entitled for specific performance, PW1 denied the same.

102.PW1 denied any condition in the agreement stipulating that no third party shall be brought into the firm. This court observes that when business is being done, there cannot be any such stipulation by APIIC from changing the constitution of the

Firm by joining new partner and by removing/exiting of the existing partners or for

Page 53 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar and changing the constitution of the Firm from Proprietary into Partnership. This

Court observes that any such stipulation will be against growth of a business.

103.In his further chief examination, PW1 got marked Ex.A55 to A59. Said documents were marked subject to objection by learned counsel for defendant No.5.

As to what is the objection is not noted in the deposition, but the objection appears to be that they are not relevant to the subject matter and that they pertain to Modern

Metal Works operation at Warangal. On these aspects, PW1 was further cross examined by the learned counsel for defendant No.5. In his cross examination, PW1 deposed that he know defendant No.4 by name M.Savithri since 1992, that she is presently residing at Bangalore, that Modern Metal Corporation shed No.F-7 was registered in the name of defendant No.4 in the year 2006 and he know said fact in the year 2006 itself.

104.PW1 further stated that after filing this suit, he met defendant No.4 at

Kazipet regarding her evidence in this matter. Not even a single suggestion was given to PW1 that M.Savithri is not the first wife of M.V.Ramana Rao and that

Meenakshi & Gayathri are not the children of Savithri through M.V.Ramana Rao and there is not even a positive suggestion to PW1 that defendant No.5 is the first wife of M.V.Ramana Rao.

105.Nextly, PW1 got marked Ex.A60 which is certified extract of particulars of registration and partners of M/S Santhoshi Metal Works obtained from the Office of

Registrar of Firms. It was suggested to PW1 that Ex.A60 was brought into existence in collusion with registrar officials, said suggestion was denied by PW1. Except making such bald suggestion, no steps are taken by defendants to rebut or disprove

Ex.A60.

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106.PW2 is scribe of Ex.A2 and one of the witnesses of Ex.A3. He filed his chief affidavit affirming that he know plaintiff and M.V.Ramana Rao, he went to the office of Sri Khaja Jamaloddin, Advocate and notary on 14.12.1988 and he signed as witness on the partnership deed Ex.A3, that Anantha Narsaiah also signed as witness to the document and he also scribed and signed as witness on Ex.A8 agreement

dated 12.01.1989. PW2 further affirmed that plaintiff used to look after the Firm

business of M/s. Santhoshi Metal Works, he came to know that M.V.Ramana Rao died in the year 1994, he was told that APIIC is not transferring the shed in the name of plaintiff and that the wives of M.V.Ramana Rao are claiming false rights against the documents executed by M.V.Ramana Rao and plaintiff filed the suit before the

Court in the year 2004.

107.PW2 was thoroughly cross examined by the learned counsel for defendants

No.1 to 3. In his cross examination, PW2 stated that he is not having personal knowledge, he know M.V.Ramana Rao from 1988 and Ex.A2 was scribed by him as per the instructions of plaintiff and Venkata Ramana Rao, prior to Ex.A2, he was not having acquaintance with Venkata Ramana Rao, Ex.A2 was scribed at Karimnagar at plaintiff’s shop at Tower Circle around 6 to 7.00 PM, by the time of Ex.A2 plaintiff’s elder brother was also present, that himself and one Anantha Narsaiah attested Ex.A2, plaintiff also signed on it.

108.Regarding Ex.A3, PW2 deposed that he attested Ex.A3 partnership deed, it was scribed at the office of Parvathalu, Advocate, at that time M.Venkata Ramana

Rao, plaintiff and one Mr. Narsaiah were present, after Ex.A3 was typed, after going through it, he attested the same. It was suggested to PW2 that by the time of Ex.A3

Venkata Ramana Rao was not present and his signature was forged, PW2 denied the same. He further stated that he do not exactly remember the name of Firm of

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Venkata Ramana Rao, it is Santhoshi Metal and something and the partnership started in the year 1988.

109.PW3 is examined as one of the witnesses to Ex.A10 General Power of

Attorney. PW3 filed his chief affidavit affirming that he went to office of Sub-

Registrar at Karimnagar on 01.02.1994, he was asked to sign as witnesses in the

Power of Attorney, himself and Dannamaneni Venkateshwar Rao signed as witnesses in the Power of Attorney and after that, M.Venkata Ramana Rao signed on the document, that M.Venkata Ramana Rao is partner of Santhoshi Metal Works at Industrial Estate, Karimnagar.

110.PW3 was thoroughly cross examined by the learned counsel for defendants (the deposition does not record which counsel for which particular defendant cross examined PW3). In his cross examination, PW3 was questioned about the person who secured the stamp paper of Ex.A10. He stated that he do not know who secured the stamp paper for Ex.A10. PW3 further stated that he saw Venkata Ramana Rao on the date of Ex.A10 and prior to that date he do not know him. PW3 was further suggested that Venkata Ramana Rao was not the person that executed Ex.A10 and he was impersonated by some other person by the plaintiff, PW3 denied the same.

There is no rebuttal evidence to show that Ex.A10 registered instrument was not executed by M. Venkata Ramana Rao.

111.PW4 is the then General Manager of Industrial Centre, Karimnagar. He deposed in his chief examination that for the past one year he was working as

General Manager at Karimnagar (he deposed on 10.09.2007), he is working as

General Manager at Karimnagar. Nextly PW4 spoke about the endorsement on the reverse of Ex.A4 dated 15.12.1988. He stated that the endorsement reading that

Santhoshi Metal Works which earlier was Proprietary Firm was changed as

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Partnership Firm upon joining of plaintiff, that the change takes place upon the application of the Proprietor along with Partnership Deed. Thus, according to PW4, the Proprietor of M/S Santhoshi Metal Works submitted application along with

Partnership Deed for change of the Firm from Proprietary concern to Partnership and the same was effected.

112.PW4 was thoroughly cross examined by the learned counsel for defendants

No.1 to 3. In his cross examination, PW4 stated that Ex.A4 was not issued by him and he is deposing upon verification of record. When asked as to who issued Ex.A4 i.e., name of the then District Manager who issued Ex.A4, PW4 stated that he cannot state the name of said person. PW4 admitted that the endorsement dated 15.12.1988 is not indicating the reference of application and enclosing of partnership deed. Evidently, PW4 is examined to speak about endorsement on the reverse of

Ex.A4 and PW4 stated that upon verification of records, he is deposing in this case.

113.Coming to cross examination by learned counsel for defendant No.5, PW4 deposed that he did not bring any record with him as he was not asked to produce any record, that there may be a provision for the General Manager or the competent officer to change the Proprietary Firm. this into a Partnership concern, he cannot say the provision. Said question has no clarity. This court observes that the endorsement on the reverse of Ex.A4 is only recording of change of constitution of M/s.

Santhoshi Metal Works from Proprietary to Partnership concern and as seen from the endorsement it was made under the seal and signature of General Manager, District

Industries and it is he who changed the Proprietary concern into Partnership concern.

114.PW4 further deposed that he put up to 30 years of service, that in the register of registrations, they will make the entry of registration. He denied that they are not empowered to change the Proprietary Firm into a Partnership concern. Apparently,

Page 57 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar the suggestion is to the effect that the office of PW4 i.e., Registrar of Firms is not not empowered to record the change. This court observes that any change in constitution of M/s. Santhoshi Metal Works has to be 1st recorded before the registrar of Firms, if the Firm is registered and the same would be informed with the necessary documents before the APIIC, the District Industrial Centre and APSSIDC concerned. When suggested that they have not made Ex.A4 endorsement and they did not issue Ex.A4 along with its endorsement from their office, PW4 denied the same. This court further observes that if it is the case of defendant No.5 that the certificate itself is not proved, nothing prevented them from obtaining and filing the relevant file from the office of APSSIDC. It is not as if the office of APSSIDC does not maintain any record. One of the stipulations of allotment of the Stores shed is sale deed will be executed for shed only after payment of entire amount and after going into production of the approved line of manufacture as per the registration certificate issued by the Department of Industries.

115.PW5 is examined as Sales Gumastha in Santhoshi Metal Works, Karimnagar, who worked there from 1984 to 1991. He filed his chief affidavit affirming that

M/s. Santhoshi Metal Works was a Proprietary Firm up to 1988 and the Proprietor was M.Venkata Ramana, that in the year 1988, Mallyala Venkataiah joined as partner in the M/s. Santhoshi Metal Works, from 1989 onwards Mallyala Venkataiah used to manage M/s. Santhoshi Metal Works. PW2 further deposed that PW5 stopped working in M/s. Santhoshi Metal Works in the year 1991 as he got job as

Conductor in APSRTC, he came to know that Mallyala Venkataiah purchased the share of M.Venkata Ramana Rao, total cost was estimated as Rs.1,14,200/- and

M.Venkata Ramana Rao sold his share to M. Venkataiah. He further affirmed that he recognized the signatures of Maddineni Venkata Ramana Rao. PW5 was further

Page 58 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar confronted with signatures on Ex.A2, A3, A8 and A23 purporting to be that of

M.V.Ramana Rao and PW5 admitted said signatures as that of M.V.Ramana Rao.

116.PW5 was thoroughly cross examined by the learned counsel for defendants

No.1 to 3, which was adopted by defendant No.5. In his cross examination, PW5 deposed that he was not given any appointment order by Maddineni Venkata

Ramana Rao, he cannot say in which date and month he joined M.V.Ramana Rao, he was not having any record to show that he worked under M.V.Ramana Rao. PW5 denied that he did not work with Santhoshi Metal Works at any point of time and he does not know M.V.Ramana Rao and at the instance of plaintiff he is deposing false.

This court observes that the evidence of PW5 remained credible. No ill will or enmity was attributed to PW5 for him to support the case of plaintiff. It is also not the case of defendant No.5 and defendants No.1 to 3 that there was another person who worked in M/s Santhoshi Metal Works or that there was no worker working the

Santhoshi Metal Works. This evidence of PW5 totally remained credible.

117.On their part, the defendant Corporation APIIC examined their Manager (Development) as DW1, the Deputy Zonal Manager, Karimnagar as DW3 and their

Assistant Manager, APIIC as DW4.

118.Chief affidavit of DW1 is reiteration of the pleadings in their written statement. He filed his chief affidavit on 11.10.2007. Interestingly, DW1 further added that the dispute between plaintiff and two wives of original allottee late

M.V.Ramana Rao i.e., defendants No.4 & 5 is to be decided in this suit and defendants No.1 to 3 Corporation is no way concerned with the claims of plaintiff.

DW1 further affirmed that whatever payments made were paid to them on behalf of

Santhoshi Metal Works and not by plaintiff as partner of Santhoshi Metal Works.

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119.There was minimum cross examination of DW1 by the learned counsel for defendant No.5. In his cross examination by D5, DW1 deposed that as per record defendants No.4 and 5 are the two wives of M.V.Ramana Rao and no legal heir certificate was filed before them, that M.V.Ramana Rao entered into Hire Purchase agreement with them. There was no positive suggestion by D5 that D5 is the legally wedded 1st wife of M.V.Ramana Rao.

120.Nextly, DW1 was thoroughly cross examined by the learned counsel for plaintiff. DW1 stated that basing on the applications of defendants No.4 & 5, he stated that defendants No.4 & 5 are the wives of M.V.Ramana Rao. This part of cross examination of DW1 is crucial to decide the case. He stated as follows (verbatim reproduced):

“During the life time of M.V.Ramana Rao itself the partnership of Ramana Rao with plaintiff was filed for approval for changing the constitution from proprietorship to partnership, his such request was not considered since dues were not cleared off and since allotment was not restored. If dues are paid allotment will be restored. As on the date of partnership filed the arrears in OS 22 of 1987 were not cleared off. As on today all the dues are cleared off.”

121.from the above statements made in the cross-examination of DW1 it is a fact that during his lifetime, M.V. Ramana Rao sought for conversion of his Firm into a

Proprietary Concern and the only objection from the Corporation at that time was non payment of dues. It was further suggested to DW1 that they have unnecessarily kept the case pending though defendant No.5 got no right over the suit property since she is not the legally wedded wife of late M.V.Ramana Rao, DW1 denied said suggestion. Regarding possession of the property, DW1 deposed that as on that day (he deposed on 05.03.2008) the Firm is under enjoyment of plaintiff, he again added that it is under lock and key and as such he cannot say in whose possession the Firm

Page 60 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar is. Evidently, the Corporation pleaded in their written statement that plaintiff got no concern with suit property and as such possession of the property by the plaintiff is unauthorized and he is liable to be evicted as per law.. This being the case, contrary to the plea taken by defendants in the written statement and their stand during the cross-examination of PW1, DW1 now cannot say that he do not know in whose possession the property is or the Firm is. Further, it is not the case of either the

Corporation or D4 to D7 that that they have taken any steps for eviction of plaintiff from the suit property.

122.Nextly, when suggested that even after cancellation of allotment, they accepted payments made by plaintiff, DW1 admitted said fact. He however added that they accepted payments by writing a condition “without prejudice to the rights of the Corporation and cancellation orders”. Correspondence between plaintiff and defendants No.1 to 3 and late M.V.Ramana Rao and the several receipts issued by

Corporation were all thoroughly discussed above and they are clear about the payments made by plaintiff and late M.V.Ramana Rao to the Corporation and even as per the evidence of DW1, all the amounts were paid. Most important to note, it is not the case of any of they defendants that any amount was paid by Defendant No.4 or 5 or their children.

123.In his cross examination by the learned counsel for defendant No.5, DW1 deposed that defendant No.5 sent a letter to Corporation stating that her husband died and to substitute her name in the place of her husband and they asked defendant

No.5 to produce legal heir certificate, death certificate or succession certificate, that defendant No.5 produced succession certificate along with a letter dated 10.06.1997

before the Corporation.

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124.Nextly, in his further cross examination by learned counsel for plaintiff, DW1 stated that without verification of record, he cannot say on which date defendant

No.5 addressed a letter to them and on which date they replied and what is the date of death of defendant No.5’s husband mentioned in said letter. Evidently, the documents discussed above do not contain such letter of defendant No.5 where she intimated defendants No.1 to 3 Corporation that her husband died on a particular date.

125.Coming to the evidence of defendant No.5 as DW2, she filed her chief affidavit on 07.07.2008. DW2 affirmed that she is the legally wedded wife of

M.V.Ramana Rao, their marriage took place on 18.11.1976 at Arya Samaj Mandir,

Gowliguda, Hyderabad and it was registered on 19.11.1976 before Hindu Marriages,

Hyderabad, that her husband died intestate on 24.12.1994 in a road accident by leaving behind herself and her children namely M.Harichandra Prasad and M.Vijaya

Laxmi as his legal heirs. Nextly, DW2 affirmed about the allotment of plot. She affirmed that on 04.02.1981, her husband M.Venkat Ramana Rao was allotted a plot measuring 980 Sq Yd together with Stores shed at Industrial Estate, Karimnagar on hire purchase cum lease basis, for which consideration was fixed at Rs.35,200/- and bringing into existence a Firm by name M/s. Santhoshi Metal Works. DW2 further affirmed that the Firm was established in the allotted shed and her husband M.V.

Ramana Rao obtained loan for purchasing machinery from AP State Small Scale

Industrial Development Corporation limited.

126.DW2 further affirmed that her husband had similar family business at

Warangal under the name and style of M/s. Modern Metal Works, Warangal, through which he used to bring raw material to M/s. Santhoshi Metal Works, that plaintiff used to purchase utensils from the Industry of her husband, they developed

Page 62 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar friendship between her husband and plaintiff, that plaintiff joined as a Gumasta in the unit of her husband on monthly salary basis, that her husband (sic husband’s business) was yielding more and more profits, her husband raised three sheds by expending an amount of Rs.1 lakh, meanwhile her father-in-law was attacked with paralysis, as such her husband spent much time at Khazipet attending his father and could not run the business at Warangal and at Karimnagar.

127.DW2 further affirmed that plaintiff by taking undue advantage of absence of her husband, started to swallow the bill amounts and created documents by forging the signature of her husband, that manufacturing operations of M/s. Santhoshi Metal

Works fell down, but her husband was regularly tendering monthly installments to defendants No.1 to 3 till his death and after death of her husband, she cleared all the monthly installments, that her children are presently aged 29 and 26 years, her husband did not execute any GPA, that as his legal heir on transfer (of suit shed) in her favour by executing registered sale deed, got mutate her name as Proprietor cum owner and possessor of M/s. Santhoshi Metal Works.

128.DW2 further affirmed that as per demand of defendants No.1 to 3 from time to time, she submitted various documents, including succession certificate issued by

Hon’ble District Munsiff Court Gajwel in OP 2 of 1997 and she also got issued legal

notice on 24.03.1998 and 03.06.1998 to defendants No.1 to 3 and she alone got right to get registered sale deed in respect of suit property. DW2 further affirmed that taking advantage of their absence, Mallyala Venkataiah had stolen documents, for which she lodged complaint before police authorities. Evidently, no such police complaint is filed by defendant No.5 nor any such plea was taken by defendant No.5 in her written statement.

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129.DW2 was thoroughly cross examined by the learned counsel for plaintiff.

Regarding defendant No.4, DW2 stated that defendant No.4 is second wife of her husband Venkata Ramana Rao, she is having a daughter Gayathri, she do not know when her husband married defendant No.4, she do not know where Gayathri is staying, that Gayathri may be around 35 years of age, where as her son and daughter are aged 29 and 25 years respectively. DW2 further stated that she is the earlier married wife of her husband. It was suggested to DW2 that she is not the wife of

Venkat Ramana Rao and actually defendant No.4 is his wife and they only one have one daughter by name Gayathri, DW2 denied said suggestions.

130.It was further suggested to DW2 that as her marriage with Venkat Ramana

Rao happened during the subsistence of his marriage with defendant No.4 which is earlier, her marriage is void, DW2 denied the same. Nextly, DW2 was taken to the correspondence of between defendants No.1 to 3 and plaintiff. When suggested that defendants No.1 to 3 in their correspondence indicated defendant No.4 as wife of

Venkata Ramana Rao, DW2 denied said suggestion. DW2 however admitted that in

Ex.B2, defendants No.1 to 3 Corporation referred defendant No.4 as wife of Venkata

Ramana Rao.

131.Nextly, DW2 was questioned about succession OP No.2/1997. DW2 deposed that she filed OP No.2/1997 at Gajwel Court and she did not specify the name of defendant No.4 in that succession OP. Nextly, when suggested that M.V. Ramana

Rao married defendant No.4 on 05.06.1975 at Tenali as per customs and she know that marriage, she stated that she is not aware of said fact. When suggested that her marriage that took place on 19.11.1976 is illegal, DW2 denied the same. DW2 further stated that her marriage was love marriage.

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132.It is seen from Ex.B1 marriage certificate, the ages of M.V.Ramana Rao and defendant No.5 are shown as 19 and 17 years. According to DW2, she was married on 18.11.1976 and her marriage was registered on 19.11.1976 on the next day. As seen from Ex.B1 marriage certificate, the date of marriage is 18.11.1976 whereas it was registered on 19.11.1976. It is seen that at the time of marriage, M.V. Ramana

Rao is shown to be 19 years where as defendant No.5 is shown to be aged 17 years.

Defendant No.5 is minor at that time. Further, there is no signature of guardian in this certificate. From the above testimony of DW2, it is evident that defendant No.5 was aware that her husband M.V.Ramana Rao got another wife, however, she claims that she is the first wife and defendant No.4 is second wife.

133.There is absolutely no evidence to show that DW2 is the first wife and defendant No.4 is second wife. On the other hand, defendant No.5 son and daughter are shown to be aged 29 and 25 years as on the date of DW2 giving evidence on 03.12.2008 and their dates of birth comes to somewhere around the years 1979 and 1983 where as Gayathri daughter of defendant No.4 and

M.V.Ramana Rao whose age is given as 35 years by DW2 herself, must have been born sometime around the year 1973. Thus, merely basing on the marriage register extract and the testimony of DW2, it cannot be said that defendant No.5 is second wife and defendant No.4 is the first wife.

134.Admittedly, defendant No.4 on her part filed another OP No.12/1997 before the Prl. Junior Civil Judge’s Court at Warangal and she was given industrial unit at

Warangal, whereas defendant No.5 filed OP No.2/1997 at Gajwel without showing defendant No.4 and M.V.Ramana Rao’s other children as legal heirs. Even if the contention of defendant No.5 that she alone is the wife and defendant No.4 is not legally wedded wife is considered, the daughter of M.V.Ramana Rao and defendant

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No.4 i.e., Gayathri is the legal heir of M.V.Ramana Rao and defendant No.5 suppressed from impleading her in OP 2/1997 filed by her.

135.Further, defendant No.5 stated that Modern Metal Works Industry at

Warangal belongs to her husband and said industry was run in the name of her husband. Evidently, DW2/D5 did not claim any share in respect of said industry and shed at Warangal and as per the documents discussed above, it was allotted to defendant No.4 as wife of late M. V. Ramana Rao. When suggested that on the demise of her husband, his first wife defendant No.4 succeeded said industry at

Warangal, DW2 denied the same. When questioned about grant of succession certificate in favour of defendant No.4 and her children Gayathri and Meenakshi and

Radha Devi, mother of M.V.Ramana Rao in OP 12/1997, DW2 pleaded ignorance of said fact. From the above statements given by DW2 and the documents dicussed above, it is a fact that DW2 is not speaking correct facts before the court.

136.Nextly, about the plaintiff, DW2 answered that she know M. Venkataiah since 1998, he used to work as clerk in their company. The pleaded case of plaintiff was suggested to DW2 and she denied the same. DW2 denied that M. Venkataiah is partner having 49% and that her husband also entered into agreement agreeing to give 51% share to M. Venkataiah. Interestingly, she answered that she came to know that her husband was due some installments to defendants No.1 to 3 and after death of her husband, she cleared said amounts. Evidently, not a scrap of paper is filed before the Court to show that DW2 paid any amount to the Corporation. There are also no admissions from the witnesses of Corporation that they received any amount from DW2 towards installments. When suggested that plaintiff paid all the due amounts to Corporation and purchased entire industry, DW2 denied the same.

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137.DW2 admitted that a criminal case was filed against her on the allegation that she damaged the provisions of industry by breaking open Santhoshi Metal Works

Office on the complaint lodged by PW1. When suggested that Santhoshi Metal

Works is in possession of PW1 since the death of her husband and she has no right to raise any objection regarding defendants No.1 to 3 executing any deed in favour of PW1 in respect of suit property, DW2 denied the same. When suggested that defendants Corporation asked her vide Ex.B8 to settle whatever claims herself, defendant No.4 and PW1 got, through due process of law, DW2 admitted said fact.

She denied that defendant No.4 informed to defendants No.1 to 3 about her not willing to claim share in the suit property.

138.Nextly, DW2 was cross examined by the learned counsel for defendants No.1 to 3 Corporation. In her cross examination, DW2 deposed that she got issued legal notice to defendants No.1 to 3 calling upon them to transfer the suit property in her name and her children vide Ex.B7, but she did not approach the court of law on account of her ill health. When suggested that meanwhile plaintiff and herself colluded with each other and pressurized defendants No.1 to 3 claiming suit property basing on created document, DW2 denied the same. It is not the case of defendant

Corporation till this stage that there was any collusion between the plaintiff and

DW2. DW2 further answered that she did not put up any counter claim in this suit.

139.DW3 is examined as Deputy Zonal Manager of APIIC through him the

Corporation got marked Ex.B11 and B12. Ex.B11 is certified copy of Hire purchase agreement dated 23.02.1982 and Ex.B12 is certified copy of lease cum sale agreement dt.23.12.1985. Admittedly, these documents are not disputed. Ex.B11 and B12 are already discussed above. Only Ex.B11 pertains to the suit property whereas Ex.B12 does not pertain to the suit property.

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140.DW4 is Assistant Manager of TSIIC Ltd., Karimnagar. He is also examined to speak about Ex.B11 and B12, but Ex.B11 and B12 are already got marked through DW3. In his cross examination by learned counsel for plaintiff, DW4 stated that except about the above documents, he do not know about other facts of the case.

When suggested that by suppressing the documents pertaining to the plaintiff i.e., correspondence and receipts, they filed only the documents under Ex.B11 and B12,

DW4 denied said suggestion. It is borne by record that the defendant Corporation did not chose to file any documents in respect of allotment of suit plot, be it document of cancellation of allotment, correspondence between plaintiff and the

Corporation, the counterfoils of receipts issued in token of acknowledgment of payment of installment amounts, the correspondence between M.V. Ramana Rao or the correspondence between plaintiff and Corporation and the documents executed between plaintiff and M.V. Ramana Rao.

141.The voluminous documentary evidence filed by plaintiff show that whatever transpired between plaintiff and late M.V.Ramana Rao in respect of suit property and the business being done in the suit property, was brought to the notice of defendant

No.1 Corporation as the business of manufacturing aluminum utensils was being done in the suit property. The very allotment of suit property in Industrial Estate,

Karimnagar belonging to APIIC, Karimnagar was for the purpose of running the

Industry. Initially, late M.V.Ramana Rao started M/s. Santhoshi Metal Works industry manufacturing aluminum utensils and he got it registered as small scale industry with APSSIDC vide Ex.B4 certificate dated 16.12.1996.

142.On allotment of suit plot, M.V.Ramana Rao started the permitted business. As per Ex.B11 Hire Purchase agreement dated 23.02.1982, the consideration for the plot with Stores shed and open land measuring 980 Sq Yd is Rs.35,227/-, the amount

Page 68 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar has to be paid in 120 installments. The first installment being Rs.502/- and the remaining installments being Rs.422/-. As per the Hire purchase agreement, maintenance charges should also be paid to the Corporation and property tax charges also should be paid by the allottee for the property allotted.

143.It appears that due to non payments of installments as per the agreement, the allotment of suit plot and shed in favour of M.V.Ramana Rao was canceled on 07.04.1986. Still no proceedings were issued nor any steps were taken by the

Corporation for eviction of M.V.Ramana Rao. When matter stood thus, M.V.Ramana

Rao entered into agreement with plaintiff under Ex.A3 partnership agreement dated 14.10.1988, Ex.A2 sale agreement dated 09.12.1988 and Ex.A10 registered GPA

Doct. No.24/1994 dated 01.02.1994 executed by M.V.Ramana Rao in favour of plaintiff appointing the plaintiff as his agent to deal with all matters concerning M/s.

Santhoshi Metal Works and the suit plot, in all Government departments including

APIIC etc., by making the plaintiff as partner with 49% share. This factum of

M.V.Ramana Rao taking a partner and converting M/s. Santhoshi Metal Works from

Proprietary concern to Partnership concerned was brought to the notice of defendants No.1 to 3 Corporation vide Ex.A5 and A6 letters addressed by

M.V.Ramana Rao himself.

144.The documents discussed above also amply establish that M.V.Ramana Rao as Proprietor of Santhoshi Metal Works applied before APSSIDC along with Deed of Partnership for recording the change in the constitution of Santhoshi Metal

Works from Proprietary concern to Partnership Firm. The endorsement on Ex.A4 reads that permission was granted to change the constitution of the Firm from

Proprietorship of M.V.Ramana Rao to Partnership of M.V.Ramana Rao and M.

Venkataiah both as Managing partners. PW4 in his evidence stated that only on

Page 69 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar application submitted by the Proprietor along with partnership deed, such an endorsement was made on Ex.A4. It is also established that immediately,

M.V.Ramana Rao by addressing two letters Ex.A5 dated 16.12.1988 brought to the notice of APIIC about change of constitution of Firm from Proprietary to Partnership and he gave two references, one is Partnership Deed dt.14.10.1988 and the other one is Ex.A4 permission of SSI dated 06.01.1982 approving the change on 15.12.1988.

145.In Ex.A5 letter, plaintiff also asserted that he paid the necessary fee of

Rs.500/- vide receipt No.0416 dated 16.12.1988. There is seal and signature of the concerned from APIIC Industrial Estate, Karimnagar made in token of receiving

Ex.A5 in their office. It appears that there was no positive response from the

Corporation. Then came the third and fourth agreements between plaintiff and

M.V.Ramana Rao. The third agreement is Ex.A8 dated 12.01.1989 where under

M.V.Ramana Rao agreed that the entire business has to be managed and controlled by plaintiff, that M.V.Ramana Rao will not have any authority to deal with the raw material or finished product in the Industry etc. Meanwhile the General Manager,

AP Small Scale Industries, Hyderabad (APSSIDC Ltd) addressed Ex.A9 letter to the plaintiff by name and not to M/s Santhoshi Metal Works. The subject of this letter is is “settlement of hire purchase dues under revised method of package scheme” and

APSSIDC firstly informed that the Corporation extended the package scheme settlement, that under revised package method scheme after allowing 25% interest concession, plaintiff has to pay Rs.26,576.68 to the Corporation as on 31.03.1992, subject to approval by their Accounts Division and to pay the amount at the earliest.

Thus, not alone the Corporation, APSSIDC also solicited early payment of dues from the plaintiff himself and not the original allottee M.V. Ramana Rao. As rightly submitted by learned counsel for the plaintiff, Ex.A9 letter amply proves the interest

Page 70 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar of plaintiff in the suit shed. Execution of these documents, Ex.A3, Ex.A8 and the

GPA Ex.A10 is supported by the witnesses PW2 and PW3 and there is nothing on record to disbelieve their statements and these documents are established as true and valid documents executed by M.V.Ramana Rao.

146.Another letter was addressed by M.V.Ramana Rao on 30.01.1994 (vide

Ex.A11 dated 31.01.1994) to the Zonal Manager, APIIC, Warangal. He specifically avers in this letter that due to his personal problems, he was away from Karimnagar

Warangal and all this time, his co-partner M. Venkataiah was running the Industry and again requested to change constitution of Firm from Proprietary to Partnership concern, so that he can pay arrears of hire purchase installments and execute the agreement with M. Venkataiah. Still there appears to be no response from the

Corporation. Ex.A12 is already discussed above and it gives the details of payments made by plaintiff from 1980 to 12.07.1994 in cash and by cheques.

147.Next came the fourth and last agreement between plaintiff and M.V.Ramana

Rao and it is the registered GPA Doct. No.24/1994 dated 01.02.1994 executed by

M.V.Ramana Rao in favour of plaintiff appointing the plaintiff as his Agent to deal with all matters concerning M/s. Santhoshi Metal Works and the suit plot, in all

Government departments including APIIC, APSSIDC etc.

148.Next came the letter Ex.A13 dated 18.02.1995 from Zonal Manager to M.

Venkataiah and for the first time it was referred in this letter that M.V.Ramana Rao have informed them vide his letter dated 19.09.1994, that he canceled the Power of

Attorney and he also expressed his desire of handing over shed to the Corporation vide his another letter dated 29.09.1994 and for that reason the Partnership was not approved by the Corporation. It is totally not comprehensible as to how the

Corporation had correspondence with plaintiff from 1988 till September, 1994,

Page 71 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar keeping him waiting in anticipation of converting the business into a partnership

Firm without giving any positive response and once when M.V.Ramana Rao addressed the alleged letter to them, they stated that the partnership was not approved.

149.Firstly, the two references referred under Ex.A13 allegedly addressed to the

Corporation by M.V.Ramana Rao did not see the light of the day. Even if said letters are sent by M.V.Ramana Rao, the Corporation ought to have considered the circumstances in totality, not merely by considering said letters as firstly,

M.V.Ramana Rao in his earlier letter to the Corporation (Ex.A11) had specifically stated that due to personal problems, he was away from Karimnagar and Warangal and all those days, M. Venkataiah his co-partner was running running the industry and sought the Corporation to note the change in the constitution and secondly, m.

V. Ramana Rao himself expressed his desire to handover the shed to the Corporation stating that he is not in a position to run the industry. Thus, the Corporation had totally gave a blind eye to the several applications and requests of plaintiff and

M.V.Ramana Rao and kept the issue pending for more than 6 years by the date of death of M. V. Ramana Rao on 24.12.1994 who died in a road traffic accident.

150.Ex.A14 is another letter by the Corporation dated 20.09.1995 which is addressed to plaintiff by name as ‘Mallyala Venkataiah’ and he was brought to notice that outstanding dues of Rs.74,000/- have to be paid and they have initiated action to recover the dues under provisions of APRR Act and that plaintiff was advised to clear the loan installments. Thus, APIIC issued a letter to recover the amount from plaintiff as partner of M/s Santhoshi Metal Works and they have referred to

Partnership Deed dated 14.10.1988 and asked the plaintiff to clear the dues even

Page 72 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar after the death of other partner M.V.Ramana Rao, all the while, still mulling over the applications of M.V. Ramana Rao and the plaintiff.

151.The subsequent correspondence between plaintiff and M.V.Ramana Rao shows that plaintiff had been calling upon the Corporation to restore the allotment in his name. The several receipts filed by plaintiff and got marked as Ex.A23 to A42 shows that he obtained the receipts on depositing payments to the Corporation.

Property tax payment receipts shows that it is the plaintiff who paid the property tax with Corporation right from the 14.10.1988 and he also paid development charges.

Thus, it is the plaintiff who is continuing his possession over the Stores shed and is paying the property tax and other dues to the Corporation in respect of the suit property.

152.So far as running of business of manufacture of aluminum utensils in the suit plot and shed is concerned, plaintiff claims that he is running the business. Of course, there is no evidence to show that the business of manufacture of aluminum utensils is being still run in the suit plot. As a matter of fact, defendant No.5 who staked exclusive title to the suit plot and shed did not choose to take any steps for carrying on business after death of her husband nor she filed any suit for eviction of plaintiff from the suit plot and shed.

153.At this stage, subject partnership deed dated 14.10.1988 has to be discussed.

This document is not marked, but it is admitted by the Corporation. The contents of the Deed so far as the shares of the partners is also admitted by the Corporation in their written statement to the effect that M.Venkata Ramana Rao admitted plaintiff as a partner vide Partnership deed dated 14.10.1988 and gave him 49% shares in the firm M/s. Santhoshi Metal Works. They also admitted that M.Venkata Ramana Rao gave General Power of Attorney to plaintiff vide document No.24 of 1994

Page 73 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar dt.01.02.1994 and that the Partnership Firm was registered vide No.02041 of 1994 in the office of Registrar of Firms AP, Hyderabad and that the General Manager

District Industries Centre, Karimnagar endorsed on the permanent SSI Registration certificate on 15.12.1988. It is a fact that the partnership was neither approved nor rejected by the defendants No.1 to 3 Corporation for more than 6 years. For the first time vide their letter Ex.A13 dated 18.02.1995, the Corporation informed the plaintiff that the partnership was not approved as M.V. Ramana Rao informed them that he canceled the GPA in favor of plaintiff and as M.V. Ramana Rao expressed that he was desirous of handing over the plot and shed to the Corporation.

154.Further, no steps are taken by defendants No.1 to 3 Corporation, defendant

No.4 or defendant No.5 to evict the plaintiff from suit premises. Evidently, during the pendency of the suit, Corporation executed sale deed in favour of defendant No.5 in respect of the suit plot and shed and defendant No.5 in turn executed sale deed in favour of defendant No.6 and defendant No.6 in turn sold the suit property to defendants No.7 & 8. Defendants No.7 & 8 claim to have purchased the suit property vide document No.11287/2011 dt.16.12.2011.

155.Learned trial Judge discussed the same and observed that as per evidence and pleadings, M.V.Ramana Rao had two wives i.e., defendants No.4 & 5, but it is not clear who among them is first wife or second wife. Further observed that in any case, the children born to those two wives are legal heirs of M.V.Ramana Rao, but defendant No.5 obtained succession certificate leaving the children of defendant

No.4, though children of defendant No.4 are also legal heirs of M.V.Ramana Rao and also they succeeded the estate of M.V.Ramana Rao. Having observed learned trial Judge further observed that as Ex.B10 succession certificate was issued by competent court of law, he do not want to make any observation on said aspect.

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156.This court observes that Ex.B10 discussed above was issued in respect of

M.Susheela Rani, M.Harischandra Prasad and M.Vijaya Laxmi succession certificate cannot be granted in respect of immovable property, hence on the face of it, it is not a valid certificate. Nextly, the children of M.V.Ramana Rao through his other wife defendant No.4 are not shown as parties in this succession OP, there is no evidence in the Corporation to show that defendants No.4 & 5 filed legal heir certificates before it, for the Corporation to come to a conclusion that defendant

No.5 alone is successor of late M.V.Ramana Rao. Thus, viewed in any angle, the execution of sale deed during the pendency of the suit is subject to the out come of the suit and the act of Corporation in executing sale deed in favour of defendant

No.5. in the light of above facts, basing on Ex.B10 succession certificate is invalid, illegal and said sale deed is not binding on the plaintiff. Subsequent transfers by defendant No.5 in favour of defendant No.6 and defendant No.6 in favour of defendants No.7 & 8 all made during the pendency of the suit are also null and void and not binding on the plaintiff.

157.This court observes that on a petition filed by the defendants, defendants

No.5 & 6 were impleaded during the pendency of the suit. All the defendants are bound by the result of the suit. It is not necessary for the plaintiff to amend the plaint to seek any relief of declaration in respect of said documents brought into existence during the pendency of the suit. The Trial Court was well within its power to adjudicate about said documents brought into existence during the pendency of the suit. As a matter of fact, none of the defendants chose to file said documents. It is already observed above that neither defendants No.1 to 3 nor defendants No.4 & 5 took any steps to recover the possession of the suit property from plaintiff. Further, the so called purchasers defendants No.6 to 8 also did not take any steps in that direction.

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158.It should not be lost sight of the fact that the very allotment of the suit plot and Stores shed was for the purpose of carrying industry and industry under the name and style was Santhoshi Metal Works was approved to be carried in the suit plot. There is no evidence to show as to for running which industry, the Corporation had sold the suit plot to defendant No.5. Burden is only on defendants No.1 to 3 and 5 to bring said fact before the court and it is not for the plaintiff to either file a copy of the registered sale deed executed by defendants No.1 to 3 in favour of defendant

No.5 or to plead before the Court about said fact. Without carrying on any industry be it a Proprietary concern or a Partnership concern, allotment of suit plot is not valid. Plaintiff is admittedly in possession of the suit plot and he claims to be running business of manufacturing Aluminum Utensils as on the date of filing the suit. Said fact is not expressly denied by the defendants and it is not the case of anybody that on the death of M. V. Ramana Rao, his legal heirs are carrying on the business. On the other hand, during his life time itself, M..V. Ramana Rao desired to handover the suit plot owing to his ill health and absence at Karimnagar.

159.This Court observes that the Corporation in the interest of growth of industry, ought to have taken a quick decision in stead of keeping the matter pending for decades together and suddenly, during pendency of the suit, execute sale deed in favor of defendant No.5 without having any regard to the business concern.

160.Further, there is no claim from defendants No.4 or 5 or the so called purchasers defendants No.6 to 8 to render accounts of business being run or that ran in the suit plot. There were no steps taken to join the business from the time of death of M.V.Ramana Rao in the year 1994. M.V.Ramana Rao himself admitted that only his partner M. Venkataiah is looking after the business as he was away from

Karimnagar and Warangal. Corporation ought to have favorably responded in

Page 76 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar favour of plaintiff who was in possession of the suit property and who was running the industry and who evidently cleared the outstanding dues and paid installments amounts to the Corporation. Further, there is no evidence to show that there was any business, much less business of M/s Santhoshi Metal Works registered in the name of defendant No.5 so that the Corporation had a valid reason to allot and register the suit plot in the name of defendant No.5. No scrap of paper is produced by the defendants, more particularly by defendant No.5 showing that the constitution of

M/s Santhoshi Metal Works Firm was again changed and the particulars were entered in the Register of the Registrar of Firms or was entered in the records of

APSSIDC or the District Industries Centre. The subject plot is meant for running an industry and it cannot be considered as a piece of land for any purpose. The voluminous record establishes that on the death of one of the two partners viz., M. V.

Ramana Rao, the other partner viz., plaintiff becomes the sole Proprietor of the business and he is to be re allotted the suit plot on compliance of all conditions.

Admittedly, there are no outstanding dues and thus, the Corporation ought to have allotted the suit plot and shed in favor of the plaintiff and ought to have executed registered sale deed in favor plaintiff.

161.Learned counsel for Defendant Corporation vehemently submitted that the suit is barred by limitation. This Court observes that the application of plaintiff was kept pending. There was no re allotment of the suit plot. Absolutely no steps were taken by the Corporation to evict the plaintiff. Plaintiff had been seeking for allotment of suit plot in his favor and for execution of registered sale deed in his favor. There was rival claim for defendant No.5 which was kept pending. It cannot be said that the defendant Corporation had made its decision on the prior application of plaintiff, when it kept the application of defendant No.5 also pending for years together.

Page 77 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

162.Ex.A20 is notice dated 16.05.2001 which was got issued by M.Susheela Rani (defendant No.5) to plaintiff, Zonal Manager and Managing Director of APIIC Ltd., through her counsel to recognize her the legal heir of her husband Ramana Rao and to allot the suit plot and she to her. Reply letter Ex.A21 dated 25.05.2001 was addressed by defendant No.2 directing defendant No.5 to approach Civil Court to settle the dispute with plaintiff. Evidently, defendant No.5 did not initiate any proceedings against the plaintiff. Ex.A22 is letter dated 20.07.2001 issued by

Assistant Zonal Manager (D), APIIC to of M/s. Santhoshi Metal Works. This was reply to letter dt.20.07.2001 from M/s. Santhoshi Metal Works, apparently, the plaintiff herein. It was mentioned in this letter that the present (then) land cost of

Rs.300/- per Sq Mtr was valid up to 31.03.2002 only. These facts show that the

Corporation had still not decided on allotment of suit plot and they gave time till 31.03.2002 for the plaintiff to settle the dispute in Civil Court so that they can offer the suit plot and land at Rs.300/- Per Sq Mtr till that date. If is is held that law of limitation applies to the peculiar facts in the present case, limitation starts to run from 31.03.2002 and the suit having been filed in the year 2002 is well within limitation.

163.In view of my above discussion, I hold that Learned trial Judge failed to appreciate the oral and documentary evidence on record in the right perspective and came to wrong conclusions. The Judgment and Decree passed by the trial court needs interference and the same is liable to be set aside. These points are decided in favor of plaintiff and against the defendants.

Point No.3:

164.In view of the findings given in Points No.1 and 2, the Appeal is to be

Allowed.

Page 78 of 78 AS 104 of 2017 in OS 170 of 2004 PDJ Karimnagar

165.I N THE RESULT, the Appeal Suit is Allowed setting aside the Judgment and Decree dated 01.10.2016 in OS No.170 of 2004 and the suit of the plaintiff is

Decreed.

166.It is held that plaintiff is entitled for transfer of suit schedule property in his name by defendants No.1 to 3 and he is entitled for specific performance. It is hereby declared that defendants No.4 and 5 and their successors in interest are not entitled to claim any right in the suit schedule property. Defendants No.1 to 3 are directed to execute sale deed as per law in favour of plaintiff in respect of suit schedule property by duly transferring allotment of suit schedule property in favour of plaintiff within three months from the date of passing this Judgment, failing which, plaintiff is at liberty to execute the Decree through court of law. Each party to bear their own costs.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in open

court, on this the 10 th day of April, 2025.

Prl. District Judge, Karimnagar.

APPENDIX OF ADDITIONAL EVIDENCE

-Nil -

Prl. District Judge, Karimnagar.

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE

KARIMNAGAR.

PRESENT : - SMT. B. PRATHIMA, Prl. District Judge, Karimnagar.

Friday, the 11th day of April, 2025.

APPEAL SUIT NO.45 OF 2022

Between:

1. Udugula Rajaiah S/o U.Odaiah, age: 58 years, occ: Asst. Professor in KITS College,

2. Udugula Saroja @ Sarojana W/o Rajaiah, age: 55 years, occ: House hold, Both are R/o. H.No.4-33, Pratapwada, Huzurabad Village and Mandal.

…. Appellants/Defendants AND

Swargam Laxmi Narayana S/o Narsaiah @ Narsimhulu, age: 68 years, occ: Business, R/o. 12-116, Warangal Road, Huzurabad.

…. Respondent/Plaintiff

Aggrieved by the Judgment and Decree dated 13.07.2022 passed by learned

Senior Civil Judge, Huzurabad in

OS No.43 of 2012

Swargam Laxmi Narayana S/o Narsaiah @ Narsimhulu, age: 68 years, occ: Business, R/o. 12-116, Warangal Road, Huzurabad.

…. Plaintiff AND

1. Udugula Rajaiah S/o U.Odaiah, age: 58 years, occ: Asst. Professor in KITS College,

2. Udugula Saroja @ Sarojana W/o Rajaiah, age: 55 years, occ: House hold, Both are R/o. H.No.4-33, Pratapwada, Huzurabad Village and Mandal.

…. Defendants

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APPEAL FILED UNDER ORDER 41 RULE 1 AND SEC.96 OF CPC

This Appeal Suit came before me for final hearing in the presence of Sri K.Santhanam Iyengar, Advocate for the Appellants and Sri P.Sathish Kumar, Advocate for respondents and upon hearing the matter and having stood over for consideration till this day, the Court delivered the following:

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

1.The unsuccessful defendants in OS No.43 of 2012 filed this First Appeal seeking to set aside the Judgment and Decree dt.13.07.2022 passed in said suit by the learned Senior Civil Judge, Huzurabad.

2.For the sake of convenience, parties hereinafter are referred to as they were arrayed before the Trial Court in OS No.43 of 2012.

3.OS No.43 of 2012 was filed by plaintiff against two defendants seeking reliefs of declaration of title, perpetual injunction and also mandatory injunction directing the defendants to demolish the structures raised in the suit site. Suit of the plaintiff was

Decreed.

4. Brief pleadings of both sides before the Trial court are as follows:

Plaint averments:

5.1Plaintiff is owner, possessor and is in enjoyment of house site measuring 322

Sq Yd in Sy.No.2372/C situated at Huzurabad, which is described in the suit schedule and is delineated in red colour dots in rough sketch map appended to the plaint and hereinafter it is referred as ‘suit site’. Previously, the suit site was owned and possessed by plaintiff’s sister and brother by name Bopparaju Raja Laxmi @ Laxmi

W/o late Ramulu and Swargam Kanakarajam S/o late Narsaiah @ Narsimhulu respectively to the extent of 161 Sq Yd each, which are situated side by side from

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North to South of suit site. In due course of time, sister and brother of plaintiff conveyed their title to plaintiff by executing two different registered gift deeds vide

Doct. No.4796/2009 and 4797/2009 both dated 18.09.2009 respectively and inducted the plaintiff in possession.

5.2It is clear that suit site consists of two bits made into a compact plot by virtue of acquisition by plaintiff through two different Gift Deeds. The donors of plaintiff acquired title and ownership over the suit site in an extent of 161 Sq Yd each by purchase from erstwhile owner Thipparapu Gouraiah S/o Ellaiah for valid sale consideration through two different simple sale deeds. Gouraiah inducted the donors of plaintiff in possession, they have been in uninterrupted possession over the suit site.

As suit site was house site, there was no constructions around the suit site about ten years ago. In due course of time, the donors of plaintiff insisted their vendor Gouraiah to execute registered sale deeds in their favour but he dodged the matter on one pretext or the other and later they denied the title of donors of plaintiff.

5.3The donors of plaintiff i.e., sister and brother of plaintiff filed two suits OS 1687/1989 and 1688/1989 on the file of District Munsiff Court at Huzurabad respectively seeking declaration of title and perpetual injunction against their vendor

Gouraiah in respect of suit site. Gouraiah realized his mistake, the donors of plaintiff involved elders and he admitted the ownership of donors of plaintiff in respect of suit site by filing written statement in the respective suits. Consequently, said suits were decreed in faovur of donors of plaintiff, while granting perpetual injunction on 29.01.1990. Thus, the donors of plaintiff acquired title over the suit site by virtue of respective judgments and decrees passed on 29.01.1990.

5.4In due course of time, respective donors of plaintiff paid required stamp duty in respect of Judgments and Decrees in OS 1687/1989 and 1688/1989 before the Sub-

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Registrar, Huzurabad as per Sec.77 of Indian Stamp Act. Subsequently, it came to notice of plaintiff that prior to obtaining the registered Gift Deeds through his donors, defendant No.2 filed suit in OS 74/2002 on the file of Junior Civil Judge, Huzurabad for perpetual injunction in respect of 585 Sq Yd in Sy.No.2372 against Bopparaju Raja

Laxmi and Swargam Kanakarajam i.e., donors of plaintiff. However, plaintiff and defendants in said suit were said to have compromised before the Hon’ble Court and according to said terms of compromise, 70 Sq Yd of open site was allotted to

Bopparaju Raja Laxmi while carving out the Southern side portion of suit site for her convenience alone.

5.5Accordingly, the petition filed for compromise by the respective plaintiff and defendants of said suit was allowed. In fact, the suit site of the present suit belongs to donors of plaintiff to the extent of 161 Sq Yd each. However, since it was barren land and it was not properly identified earlier due to rusticness and lack of proper education to the donors of plaintiff apart from their innocence and old age. In fact, the present suit site is actually located between the two sites of the defendant No.1 in

Sy.No.2372/C and 2372/B respectively, but it is not at all the subject matter of suit in

OS No.74/2002. Hence, plaintiff is entitled to claim title in respect of suit site under

his donors i.e., Decree holders of suits in OS No.1687/1989 and 1688/1989.

5.6In due course of time, defendant No.2 also filed another suit OS 8/2009 on the file of Junior Civil Judge, Huzurabad in respect of same subject matter as that of former suit in OS 74/2002 against donors of plaintiff seeking perpetual injunction with an evil intention to encroach present suit site, however said suit is pending for enquiry.

Present suit site is actually located at a little distance towards Northern side of suit site in OS 8/2009. It is clear that both sites in OS 8/2009 and present suit are not adjacent to one another. Hence, the subject matter of OS 74/2002 is quite different from the present suit site. The vendor of donors of plaintiff was already restrained by way of

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perpetual injunction in OS 1686/1989 and 1688/1989. Plaintiff stepped into the shoes of his respective donors by virtue of two Gift deeds, hence, the interference of defendants of the suit is also liable to be thwarted out.

5.7Taking advantage of filing suit in OS 8/2009, defendant No.2 tried to interfere with the peaceful possession and enjoyment of donors of plaintiff over the suit site.

Hence, both the donors of plaintiff filed suit in OS 36/2009 on the file of Junior Civil

Judge, Huzurabad seeking perpetual injunction in respect of present suit site in

Sy.No.2372/C and obtained exparte interim injunction. The exparte interim injunction in IA No.156/2009 and the police aid petition in IA 207/2009 in OS 36/2009 were dismissed on 25.03.2011 and 19.04.2011 respectively. Defendant No.2 filed caveat petition falsely showing the boundaries of North and South. The vendor of defendants is estopped from executing sale deed in respect of suit land.

5.8Defendant No.1 owns two sites towards North and South of suit site, which are shown in green colour dots in the rough sketch map appended to the plaint and taking advantage of such contiguity of their sites with the suit site, defendants are trying to interfere with the peaceful possession and enjoyment of plaintiff. They forcibly erected compound walls towards East and West side of suit site carving out the area left for way or lane towards West of suit site connecting to their compound wall.

5.9Since the road situated towards Eastern side of suit site was extended while carving out a portion of suit site measuring 28’ feet and 5” inches width and 9’ feet depth from East to West and erected a temporary shed consisting of two rooms with brick walls covering area of 30’ width (North-South) X 16’ of length (East-West) at a depth of 72’ feet from Eastern side of suit site extending said construction while carving out an area measuring 1’ feet and 7” inches of site belonging to defendant

No.1 and also erected a septic tank in the area actually left for lane towards West of

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suit site on 18.04.2012 with the alleged permission of Grampanchayath, Huzurabad dt.26.04.2011 in spite of resisting the illegal acts of defendants apart from giving complaint dt.18.04.2012.

5.10The officials concerned did not take any action except issuance of notice dated 19.04.2012 by Nagara Panchayath to defendant No.2. The illegal constructions are delineated in blue colour dots in sketch map appended to the plaint while identifying the suit site shown in red colour dots. It has come to notice of plaintiff that defendants were said to have purchased about five to seven sites, which are situated towards

North and South of suit site from its respective owners and raised compound walls at the outer side of the area shown for lane and road i.e., towards West and East of said sites and also tried to carve out the entire suit site by way of making illegal constructions forcibly under the guise of said permission.

5.11The permission does not disclose the boundaries of suit site. Said constructions are in violation of Judgments and Decrees passed in OS 1687/1989 and 1688/1989 on 29.01.1990. Plaintiff is seeking mandatory injunction to demolish the structures raised by defendants in suit site depicted in blue colour dots in the rough sketch appended to the plaint. Plaintiff is seeking declaration of title in respect of suit site and for perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of plaintiff over the suit site. Hence, the suit.

Written statement averments of defendants:

6.1All the plaint averments which are not specifically admitted in the written statement, are denied. The alleged registered gift deeds Doct. No.4796/2009 and 4797/2009 both dated 18.09.2009 are bogus, sham and fraudulently created as they are covering part of house plot of defendant No.2. Plaintiff or his alleged donors never had any title or possession over the suit site at any point of time. The allegation that

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plaintiff acquired title and ownership over the suit site from owners from the date of execution of gift deeds is false and denied. Said gift deeds do not convey any valid title and possession to plaintiff. The allegations that the donors of plaintiff acquired 161 Sq Yd each from original owner Thipparapu Gouraiah under two different sale deeds is denied. Plaintiff did not file the alleged simple sale deeds. Said Gouraiah did not execute any simple sale deeds in favour of donors of plaintiff.

6.2The land covered under Decrees said to have been passed in OS 1687/1989 and 1688/1989 dated 29.01.1990 on the file of the then District Munsiff Court, Huzurabad in favour of donors of plaintiff is not pertaining to the suit site, within the specified boundaries in the schedule. The boundaries shown in the plaint of the suit site are totally different from that of the boundaries mentioned in consent Decrees in OS 1687/1989 and 1688/1989. The above Decrees are not binding on the plaintiff. These defendants do not know whether the Decree holders paid stamp duty and penalty

before the Sub-Registrar.

6.3It is true that defendant No.2 herein filed OS 74/2002 on the file of Junior Civil

Judge, Huzurabad against donors of plaintiff in respect of 585 Sq Yd in Sy.No.2372

for grant of perpetual injunction. In said suit, the donors of plaintiff who are defendants therein filed their written statement on 14.06.2002 admitting that “the husband of plaintiff is the owner and correspondent of Kakatiya High School which is towards Northern side of the plots of the defendants with an intention to extend his school with playground, demanded the defendants to alienate their house plots for which the defendants denied”. Thus, the donors of plaintiff pleaded that their plots are situated towards South of plot of defendant No.2, which she purchased under registered sale deed Doct. No.1933/2000 dt.04.12.2000. Said suit ended in compromise as both parties filed compromise petition before Lok Adalath on 23.11.2002.

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6.4As per terms of compromise, defendant No.2 who is plaintiff in OS 74/2002 left 6 ½’ X 97’ (70 Sq Yd of land) length to Bopparaju Rajya Laxmi in order to avoid litigation. A map was also enclosed to the compromise petition. It is also agreed that the donors of plaintiff have to construct compound wall to the South of plot of defendant No.2 with their own expenses. The compromise petition was allowed accordingly. Said fact is known to the plaintiff even from prior to execution of gift deeds. The allegation that the present suit site is located between the two sites of defendant No.1 in Sy.No.2372/C and in Sy.No.2372/B respectively and it is not at all the subject matter of suit OS 74/2002 is false to the knowledge of plaintiff and his donors.

6.5As per terms of compromise and written statement filed in OS 74/2002 by the donors of plaintiff, it is clear that their house sites covered under the consent Decrees are situated towards South of plot of defendant No.2 which she purchased under registered sale deed Doct. No.933/2000 (sic 1933/2000) dt.04.12.2000. Therefore, plaintiff is now estopped from saying that the present suit site is situated between the two sites of defendant No.1. It is true that defendant No.2 filed OS 8/2009 on the file of Junior Civil Judge, Huzurabad for grant of injunction in respect of 515 Sq Yd in

Sy.No.2372 against plaintiff and donors of plaintiff, when the donors and plaintiff illegally dismantled the compound wall and violated the terms and conditions of compromise filed in OS 74/2002.

6.6The allegation that the present suit site is located North of suit site in OS 8/2009 and the subject matter of said suit is quite different with that of present suit site is false and denied. Plaintiff is trying to change the location of alleged plots of his donors from South to North of the plot of defendant No.2. The Decrees in OS 1687/1989 and 1688/1989 are not binding on the defendants as they are not parties to those suits. In

OS 8/2009, plaintiff and donors of plaintiff filed their written statement and the same

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is pending. Hon’ble Court granted temporary injunction. It is true that the donors of plaintiff filed OS 36/2009 before the Junior Civil Judge, Huzurabad seeking injunction against defendant No.1 in respect of 322 Sq Yd in Sy.No.2372/C by showing false boundaries and contrary to the earlier terms of compromise filed in OS 74/2002.

6.7The allegation that subject matter of OS 36/2009 and the present subject matter is one and the same is false. It is true that OS 36/2009 and IA 156/2009 filed for temporary injunction and IA 207/2009 filed for police protection were dismissed on merits on 25.03.2011 and 19.04.2011 respectively. The orders passed in IA 156/2009 are binding on the donors of plaintiff. The allegation that after dismissal of police aid and Injunction petition in OS 36/2009, defendants are trying to interfere with the suit site and forcibly erected compound wall towards East and West of suit site covering the area left for way or lane towards West of suit site connecting it to their compound walls are all false. There was a compound wall on East and West of plot of defendant

No.2 by the time of her purchase under registered sale deed Doct. No.1934/2000 dt.04.12.2000. There is no lane on the West of plot as alleged in the plaint.

6.8It is true that defendant No.2 constructed two rooms in her plot with due permission of Grampanchayath and house No.12-281/A was allotted in the name of defendant No.2. She paid property tax on 06.07.2012 and prior to that a septic tank was also constructed. It is denied that septic tank was constructed in the lane. It is denied that plaintiff resisted the illegal acts. Nagara Panchayath, Commissioner issued a notice for which a suitable reply was given to him. Plaintiff came to Court by suppressing the earlier Judicial proceedings in respect of suit site. The rough sketch map filed by plaintiff is only an afterthought and it is contrary to the earlier terms of compromise, admissions and pleadings of donors of plaintiff.

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6.9Defendant No.2 is wife of defendant No.1. She purchased 585 Sq Yd in

Sy.No.2372 from Thipparapu Gouraiah under registered sale deed Doct.

No.1933/2000 dt.04.12.2000. When donors of plaintiff illegally tried to interfere into said plot, defendant No.2 filed OS 74/2002 against donors of plaintiff on the file of

Junior Civil Judge, Huzurabad. A resolution was also passed by the elders on 07.09.2002 between donors of plaintiff, Chinta Shankaraiah and defendant No.2, in which the donors of plaintiff categorically admitted that they received Rs.65,000/- for an extent of 160 Sq Yd (1 plot) from Ch.Shankaraiah who was mediator/broker. As per said resolution, donors of plaintiff had no two plots as they received Rs.65,000/- towards one plot from Chinta Shankaraiah.

6.10The donors of plaintiff filed caveat petitions No.16/2002 and 17/2002 dated 02.04.2002 before Junior Civil Judge, Huzurbad in respect of house plots 161 Sq Yd in

Sy.No.2372/C each against defendant No.2. In said caveat petition No.16/2002 filed by Bopparaju Rajyalaxmi, the boundaries of 161 Sq Yd in Sy.No.2372/C are mentioned as East: Road; West: Compound wall of SV College; North: Udugula

Sarojana (defendant No.2); and South: Swargam Kanakarajam. In another caveat petition No.17/2002 filed by Swargam Kanakarajam, the boundaries for an extent of 161 Sq Yd in Sy.No.2372/C are mentioned as East: Road; West: Compound Wall of

SV College; North: Bopparaju Rajyalaxmi; and South: Kalluri Anasuya.

6.11 As per the boundaries mentioned in said caveat petitions, it is clear that the alleged land of donors of plaintiff situated on the South of land of defendant No.2 purchased by her under registered sale deed Doct. No.1933/2000 dt.04.12.2000. As per admissions made in above said caveat petitions by donors of plaintiff, present suit site is situated on the South site of land of defendant No.2, but not on the North of plot of defendant No.2 as alleged in the plaint. As per the boundaries mentioned in the two caveat petitions, the Western boundaries were shown as compound wall of SV College

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(Kakatiya Junior College) as such there is no lane on the West of the alleged plots of donors of plaintiff. Plaintiff in the present suit is alleging that there is a lane on the

West to the suit site and thereafter the plots of Cheripelly Teja, Elkapelly Mallaiah,

Mohd. Khaja Bee, House of Mogili Sammaiah & Narsaiah were shown which is contrary to the boundaries shown in the earlier caveats filed by donors of plaintiff.

6.12As per caveat petitions, Western boundary is shown as SV Junior College, which is run in Kakatiya Junior College is far away from the present Western boundary of suit site. Thus, plaintiff shifted the location of suit site from the admitted boundaries in caveat petition towards North by covering part of plot of defendant No.2 herein purchased by her under registered sale deed Doct. No.1934/2000 dt.04.12.2000.

The boundaries shown in the caveat petitions falsify the claim and location of the suit site of plaintiff in the present suit.

6.13After compromise in OS 74/2002, the donors of plaintiff and plaintiff again illegally tried to interfere and dismantled the compound wall on which a complaint was given by defendants to police Huzurabad vide Cr.No.180/2007 dt.14.09.2007 under Sec.447, 427 IPC. Plaintiff was remanded to judicial custody. Inspite of complaint to the police, plaintiff and donors of plaintiff again illegally tried to interfere into the plot of defendant No.2 by violating terms of compromise in OS 74/2003 dated 23.11.2002, as such defendant No.2 filed OS 8/2009 as stated above. The boundaries in OS 36/2009 and the boundaries mentioned in the present suit may kindly looked into as they are contra to each other. The subject matter of OS 36/2009 is for an extent of 322 Sq Yd and the present suit subject matter is also 322 Sq Yd and is one and the same. During pendency of OS 36/2009, the present registered gift deeds of plaintiff were created and this suit is filed. Therefore, the suit site is not absolutely within the plaint schedule boundaries.

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6.14While said suit OS 8/2009 was pending, the plaintiff herein in collusion with his sister and brother created two registered gift deeds dated 18.09.2009 gifting the property to plaintiff by covering middle part of plot of defendant No.2 purchased by her under registered sale deed Doct. No.1934/2000 dt. 04.12.2000 with an ulterior motive to grab the plot of defendant No.2. Said registered gift deeds were brought into existence with a sole intention to grab the plot of defendant No.2. Land covered within the boundaries mentioned in the gift deeds are part and parcel of plot in an extent of 507.33 Sq Yd in Sy.No.2372 of defendant No.2 which she purchased under registered sale deed Doct. No.1934/2000 dt.04.12.2000. Said plot was purchased with compound walls on East and West.

6.15Plaintiff also filed a caveat petition against defendant No.2 in respect of 161 Sq

Yd in Sy.No.2372/C and 2372 by mentioning the following boundaries: East: land of

Udugula Rajaiah; West: Land of Swargam Kanakarajam; North: 12 Feet Road; and

South: 9 Feet Road. The boundaries mentioned in said caveat and boundaries mentioned in present suit are totally contrary which falsifies the claim of plaintiff. In order to prove the same, defendants filed certified copies of registered sale deeds of neighboring Western side plot owners. In said registered sale deeds, the Eastern side boundaries are mentioned as Compound wall of Kakatiya School which belongs to defendants.

6.16Wife of plaintiff purchased plot in an extent of 285 Sq Yd in Sy.No.2372/B from Kolluri Anasurya under registered sale deed Doct. No.2163/2002 dt.07.09.2002 and that the Western boundary is shown as H.No.12-340 of SV College and Northern boundary is shown as B.Rajyalaxmi’s plot. Said sale deed is attested by Swargam

Kanakarajam who is one of the alleged donors of plaintiff. The boundaries mentioned in sale deed are clear that suit site is not situated within the plaint schedule boundaries.

Defendant No.2 is in possession over the suit site and she constructed structures in suit

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site long back. A rough sketch map showing the plots of defendants is enclosed. The suit is barred by doctrine of estoppel under Sec.115 of Evidence Act and is also barred by doctrine of resjudicata. The suit is barred by limitation and the suit is liable to be dismissed.

7.Basing on the above pleadings, learned trial Judge framed the following issues for trial:

1. Whether the plaintiff is entitled for declaration of title in respect of the suit schedule property, as prayed for?

2. To what relief?

8.During the course of trial, plaintiff examined himself as PW1 and also examined PW2 to PW4 and got marked Exs.A1 to A16. On behalf of defendants, defendant No.1 examined himself as DW1 and also examined DW2 and got marked

Ex.B1 to B25.

9.1Learned trial Judge after thorough appreciation of the fact situation as borne out by the pleadings of both sides and after discussing the oral and documentary evidence adduced by both parties, firstly on the aspect of Identification of disputed suit property, observed that the report of Advocate Commissioner is part of record and even without examining Advocate Commissioner, the Report can be admitted in terms of Order 26 Rule 10 CPC , that the boundaries shown in suit schedule, in the light of

Ex.A1, A2, A14 and A15 support that the boundaries shown and the sketch map appended to the report also support the same. Observing as above, learned trial Judge held that plaintiff established his title and possession over the suit schedule property right from the year 1990 onwards by virtue of Ex.A15.

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9.2Nextly, learned trial Judge on the discrepancy in the boundaries in Ex.B21 and

B22 observed that in Ex.B21 and B22 caveat petitions filed by donors of plaintiff, the donors pleaded that their land is on South of land of defendants and in written statement in OS 74/2002 they pleaded that their 322 Sq Yd is on South to the Kakatiya

School.

9.3Learned trial Judge next referred to the argument of learned counsel for plaintiff that merely showing wrong boundaries in Ex.B21 and B22 would not diverse the plaintiff of the right over the suit property, which they acquired by virtue of Ex.A14 and A15 i.e., Judgment and Decree in OS 1687/1989 and 1688/1989 dated 29.01.1990 and observed that no doubt the boundaries shown in Ex.B21 and B22 are different from the boundaries shown in Ex.A14 and A15, however, plaintiff is not party to

Ex.B21 and B22, said proceedings have not been “required for determination”, that

Ex.B21 and B22 were filed on 02.04.2002 whereas Ex.A14 and A15 were drawn by the competent court on 29.01.1990 and merely showing boundaries in Ex.B21 and B22, the rights of vendors of plaintiff have not been taken away by virtue of earlier documents covered under Ex.A14 and A15 as rightly contended by learned counsel for plaintiff.

9.4Learned trial Judge next observed that the ownership and possession of plaintiff vide Ex.A14 and A15 is not in dispute, in the light of clear admissions of DW1 to the effect that the donors of plaintiff were owners of land covered by Ex.A14 and A15 and he is not concerned with the aforesaid land and in view of said clear admission, if the contention of defendants that the suit property is the part of land covered by Ex.B4 (CC of registered sale deed) is assumed as true and basing on Ex.B3 the contention of defendants that the land of donors was settled in a compromise for 70 Sq Yd is also assumed to be true, it is for the defendants to explain where the remaining land admeasuring 252 Sq Yd of donors of plaintiff out of 322 Sq Yd is situated.

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9.5Learned trial Judge next observed that plaintiff claimed suit property vide

Ex.A1, A2, A14 and A15 and said contention is well supported from the rough sketch map got prepared and filed by Advocate Commissioner and the admission of DW1, that the consent Decrees covered by Ex.A14 and A15 became final and binding, that the rough sketch map got prepared and filed by the Advocate Commissioner prevails over the rough sketch map filed by defendants along with their written statement.

9.6Learned trial Judge next observed that defendant No.2 did not choose to enter into witness box to depose in support of her case, that it is not the case of defendants that defendant No.1 was authorized to give evidence on behalf of defendant No.2, that adverse inference can be drawn against defendant No.2.

9.7Nextly, learned trial Judge observed that there is no documentary evidence on record to show that suit property is middle of land of defendant No.2 covered under

Ex.B4, the mere admissions of PW2 and PW3 is of no use in the light of settled law that any amount of evidence beyond scope of pleadings cannot be considered.

9.8Regarding relief of mandatory injunction, learned trial Judge held that there are criminal cases evidenced by the documents exhibited by both sides, that the documents covered by Ex.B10 and B16 are not sufficient to hold that defendant No.2 obtained necessary permission, defendants did not file any such permission from raising structures in the suit land, it creates a reasonable doubt on the very defence put forth by defendants, that rough sketch map filed by advocate commissioner clearly show a structures consisting of two rooms covered on the West but no septic tank was shown, that there is no mention about two rooms and septic tank in Ex.B1, B2, B14 and B15 and observing as such, held that plaintiff is entitled for mandatory injunction directing defendants to removing the structures over the suit property. With such and other observations, learned trial judge Decreed the suit of the plaintiff.

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10.Aggrieved by the Judgment and Decree of the trial Court, the unsuccessful defendants preferred this Appeal with the following grounds:

Grounds of Appeal:

1. The Judgment and Decree of the Trial Court is against law, material and evidence on record.

2. Trial Court erred in decreeing the suit on surmises and conjectures.

3. Trial Court erred in decreeing the suit without minutely examining exhibits filed by the defendants.

4. Trial Court erred in not taking into account the previous suit filed by the donors of the plaintiff and also the compromise which was arrived between donors of the plaintiff and defendants.

5. Trial Court erred in believing Ex.A14 and A15 and erred in upholding that plaintiff derived title through Ex.A1 and A2.

6. Trial Court committed grave error in coming to conclusion by agreeing with the submission of plaintiff that defendant failed to locate their land in sub division in Sy.No.2372.

7. Trial Court erred in concurring with the contentions of plaintiffs that Ex.B3 does not confer any rights on defendants without any relinquishment.

8. Trial Court failed to note that there are discrepancies in the boundaries shown in gift deed relied upon by plaintiff.

9. Trial Court failed to note that the boundaries shown in Ex.B21 and B22 are erroneous.

10.Trial Court erred in holding that the vendors of defendants i.e., T.Gouraiah lost his rights over the property by virtue of consent decree and therefore he had no right to execute Ex.B4 and B5.

11.Trial Court failed to note that the suit for declaration and other reliefs without identifying the suit property is not maintainable under law.

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12.Trial Court failed to take note of admissions made by plaintiff in OS 74 of 2002 and Ex.B17, B20 and B25.

13.Trial Court failed to note that PW2 admitted the possession of defendant No.2 along with the boundaries of suit schedule property.

14.Trial Court committed a grave error in disbelieving the evidence of defendants and decreeing the suit without proper reasons.

11.I have heard extensive arguments advanced by both side counsel and I have also perused the written arguments filed on behalf of defendants as well as plaintiff.

Written arguments filed by Learned Counsel for defendants:

12.1Learned counsel for defendants firstly submitted that Plaintiff sought for three reliefs namely declaration of title, mandatory injunction, perpetual injunction, that it is imperative for the court to frame issues on the three reliefs sought, that the Trial Court cannot presume knowledge of issues claimed by the parties, that the trial court committed mistake by framing only one issue when three reliefs were sought, that the trial court committed mistake and framed only one issue regarding declaration of title.

12.2Learned counsel submitted that in a suit filed for declaration regarding the status, in the present case, declaration of title in respect of immovable property, under

Sec.37 of Act (Specific Relief Act), the manner in which title is asserted by one side and denied by the opposite side should be appreciated, in the present suit, mere relief of declaration of title without seeking relief of recovery of possession is not maintainable, neither possession is claimed nor any issue regarding recovery of possession was framed. In support of his argument, learned counsel for defendant relied upon the authorities AIR 1981 Orissa 74 @ 75, AIR 1961 Punjab 281, AIR

1954 Bhopal page 3, AIR 2017 SC 1034, AIR 2016 Gouhati page 39 and also AIR

1993 SC 957 and Factors to be considered under Sec.34 of Specific Relief Act.

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12.3Learned counsel for defendants submitted that different versions regarding boundaries are given in various exhibits, which is clearly evidenced by the documents exhibited by both sides, be it in judgments and decrees in the earlier suits including compromise Decree in OS 74/2002, the statements of witnesses in various suits and in this suit, the averments made and the boundaries given in the caveat petitions filed by the donors of plaintiff and these boundaries are contrary to each other and therefore the very identity of the suit property is not established and when identity of suit property itself is not established, there is no question of plaintiff proving his title over the suit property.

12.4Learned counsel submitted that they have filed a petition under Order XLI Rule 27 to receive certain documents, that they have filed these documents before Advocate

Commissioner, but Advocate Commissioner did not care to look into the documents and sought to receive the documents. Learned counsel submitted that when the original owner Tipparapu Gouraiah is shown to have sold the land to several persons and when there are several consent Decrees passed against him, it is imperative upon the plaintiff to plead and point out the land of his donors and that he is in possession of said land.

12.5Learned counsel on the compromise decree in OS 74/2002, submitted that said

Decree was passed between defendants and donors of plaintiff, which resulted in the compromise and terms of compromise cannot be reopened in this suit and that said terms of compromise and compromise Decree Ex.B3 in OS 74/2002 was not challenged and it remained final.

12.6Nextly, learned counsel for defendants referred to the earlier three suits OS 74/2002, OS 8/2009 and OS 36/2009 and submitted that the suit filed by donors of plaintiff vide OS 36/2009 for perpetual injunction for the disputed property was

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dismissed whereas, the suit filed by defendant No.2 against the donors of plaintiff vide

OS 8/2009 was decreed and all the suits are in respect of the present suit property.

Regarding Ex.B3, learned counsel submitted that no objection was raised regarding

Ex.B3 at the time of marking and therefore, objections are barred under Sec.35 and 36 of Stamp Act.

12.7Learned counsel next submitted that the trial Court did not interpret the compromise Decree in Ex.B3, trial court failed to appreciate that the boundaries in

Ex.A1 and A2 are different from the boundaries given in Ex.B21 and B22 and that trial court failed to take into account, the several admissions in OS 74/2002 in Ex.B17,

B20 and B25. Nextly, learned counsel referred to each and every document and noted the particulars of the land including the boundaries.

12.8Learned counsel submitted that the boundaries shown in the plaint as well as the various Judgments are contradictory. Learned counsel vehemently submitted that

Ex.A1 and A2, the so called registered gift deeds by the donors of plaintiff in favour of plaintiff are brought into existence during the pendency of OS 8/2009 and OS 36/2009 and that the documents also recite about delivery of possession and when in the first place, two suits are pending regarding the same disputed land, execution of such gift deeds is only to bring in fresh litigation.

12.9Learned counsel next submitted that they have filed material documents which have bearing on the suit, that plaintiff counsel cannot take any objection for said documents as they are previous proceedings of the Court and that the documents have to be definitely taken as additional evidence and if necessary, the Court can remand the suit to the lower court and call for a finding regarding genuineness of said documents. Learned counsel further submitted that learned counsel for plaintiff who is arguing in the Appeal was also the learned counsel for plaintiff before trial Court and

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he got full knowledge of the earlier suits and Decrees, but cleverly did not exhibit said documents and as such, the documents filed as additional evidence which are material having bearing on the suit have to be taken on record.

12.10 Regarding the Report of Advocate Commissioner, learned counsel submitted that learned Advocate Commissioner has to examine each and every point, which he failed to do so, that the trial court failed to consider the objections filed by defendants to the Advocate Commissioner’s report, that plaintiff has to succeed on his own strength and cannot depend on the weakness if any, in the case of other side. In support of his case learned counsel for defendant relied upon the authority in

Anathula Sudhakar Vs. P.Buchi Reddy & Ors. AIR 2008 SC 2033.

12.11 Learned counsel for defendant further submitted that the donors of plaintiff claimed that they were owners of 322 Sq Yd, but on ground only 90 Sq Yd remained which they could not localize with fixed boundaries, that on representation of defendants before Superintendent of Police, the SP suggested a compromise, joint survey was conducted, only 90 Sq Yd was found available on South and after surrender of 70 Sq Yd of land by defendant No.2 through Ex.B3 and B4, it covered 1 plot area of 161 Sq Yd, that the broker Chinta Shankaraiah paid Rs.65,000/- to donors of plaintiff for 161 Sq Yd which was not found on spot and thus, the claim of donors of plaintiff that they got 322 Sq Yd is not proved and hence, the donors of plaintiff have no title, plaintiff cannot claim any title through his donors as the claim of donors of plaintiff for the two plots of 161 Sq Yd each was settled by the donors in favour of wife of plaintiff vide Item No.2 of additional documents namely Doct. No.3337/2003 dt.19.11.2003.

12.12 Learned counsel further submitted that though said document was submitted to the advocate commissioner in the trial Court, it was not marked, that defendants also

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filed rough sketch showing the plots, which show plot of Kolluri Anasurya to the

South of suit site, that within lines covered in blue colour, only 90 Sq Yd remains for the donors, within green colour the 70 Sq Yd surrendered by defendant No.2 is depicted and therefore, adding 90+70 Sq Yd, there remains only 160 Sq Yd which is treated as one plot and for the other plot, the broker Ch.Shankaraiah paid amount to the donors of plaintiff and the plaintiff cannot go back on said arrangement made by his donors in compromise decree.

12.13 Learned counsel further submitted that the property shown in green and blue colour lines in the sketch is that of one sold by Bopparaju Rajyalxmi to wife of plaintiff vide registered sale deed 3337/2003 dt.19.11.2003. Learned counsel further submitted on the North, it is plot of defendant No.1 and in the middle it is property of

Kakatiya High school of defendant No.1 and on the East and West there exists compound wall which is also shown in the sale deed of defendants.

12.14 Nextly, learned counsel submitted about the purchase of land by defendant

No.2 under Ex.B5 registered sale deed Doct. No.1934/2000 dt.04.12.2000 and submitted that the boundaries of sale deed are shown as North: plot of defendant No.2;

South: Open plot of defendant No.1 and A.Prathap Reddy; East: Road; and West: Plot of Syed Hussain and said document is much prior to Ex.A1 & A2. Learned counsel further submitted that in the year 2005, defendants constructed a wall joining East and

West side for vastu purpose, but not on the borders, said wall was dismantled by plaintiff in the year 2005 resulting in filing criminal case CC 138 of 2008, in which the plaintiff was convicted by Trial court and the Appellate court and thus, the neither the plaintiff’s donors nor plaintiff had title nor possession over the suit land. Learned counsel finally submitted that even in the previous litigation OS 8/2009 and OS 36/2009, Ex.A1 & A2 were not believed and said suits were disposed in faovur of defendant No.1 and that said aspect was not gone in to by the trial court.

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12.15 Learned counsel for defendants also relied upon the following Authorities:

AIR 1973 SC 626 AIR 2019 (6) SCC 82 AIR 1981 SC 2085 AIR 1981 Orissa 74 @ 75 AIR 1961 Punjab 281 AIR 1954 Bhopal Page 3 AIR 2017 SC 1034

Gist of Written Arguments filed by learned counsel for Plaintiff:

13.1On the existence of two roads, learned counsel for plaintiff submitted that

Ex.A1, A2, A4, A11 to A16 show road on the West and East and all those documents are registered documents, out of which Ex.A11 and A16 belong to defendants and thus, it is clear that the suit land is having two side roads which is against the case of the defendants.

13.2Learned counsel further submitted that as per Nagara Panchayath, Huzurabad resolution i.e., Ex.A4 it is established that there is a road existing towards West of suit land and Nagarapanchayath resolved to reconstruct the occupied road towards West, that defendant raised compound wall on the West by occupying the Western side road and this is also mentioned in Ex.A4 resolution of Nagarapanchayath.

13.3Nextly, learned counsel submitted that Zubeda Begum, Sarjana Yellaiah and

Fakeer Ahmed respectively obtained decrees vide Ex.A8 to A10 from Tipparapu

Gouraiah for different extents of land. Similarly, the vendor of D1 & D2 got decree vide Ex.A12 from Thipparapu Gouraiah, that the properties covered under above said decrees are again shown to have been purchased under registered sale deed by defendant No.1 not from the decree holder who got title by virtue of decree, but from the owner Thipparapu Gouraiah who suffered the decrees and as such, said sale deeds

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of defendant No.1 are illegal and no right is created or conveyed in favour of defendant No.1.

13.4Learned counsel next referred to the oral evidence of the witnesses and parties and submitted that PW2 S/o Swargam Kanakarajam, PW3 son of B.Rajya Laxmi who are attestors testified that they attested the respective gift deeds Ex.A1 & A2, further

PW4 is neighbor of the suit property who purchased the property from Panja Srinivas and he stated that defendant raised construction after filing the suit in the midnight times and he deposed that roads are there on East and West of suit land and that their evidence has to be considered.

13.5Nextly, learned counsel for plaintiff submitted that as per Ex.B4 registered sale deed Doct. No.1933/2000 dt.04.12.2000 of defendant No.2, the Southern boundary is shown as plot of Kolluri Anasurya, that said boundaries are against Ex.B5 certified copy of registered sale deed Doct. No.1934/2000 dt.04.12.2000, which document was executed on the same date and as per own admission of defendant No.2, she got two plots and as per the boundaries of Ex.B4 and B5 the two plots are adjacent to each other and there is no land in between, as per Ex.B1 plaint in OS 74/2002 Southern boundary is shown as land belonging to Kolluri Anasurya and as per compromise in said suit, defendant No.2 relinquished 70 Sq Yd of land towards plot of Kolluri

Anasurya i.e., South side of suit land and thus, it is clear that there is no land on South of Ex.B4, that only property of Kolluri Anasurya is situated and thus, there is no plot measuring 507 Sq Yd as in Ex.B5 and vehemently submitted that Ex.B5 is brought into existence to cover up and take up the lands in Ex.B4 and B5, that the land under

Ex.B5 is not existing on spot and the contention of defendants that the suit land is in middle of Ex.B5 land is not correct.

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13.6Learned counsel again submitted that defendants got executed several registered sale deeds of several plots by taking the consent Decree holders as attestors in the sale deeds from Thipparapu Gouraiah, who already parted with his properties by way of consent Decrees. Learned counsel next submitted that 70 Sq Yd which is subject matter of compromise in OS 74/2002 has no concern with the suit property, that said 70 Sq Yd is left out of Ex.B4 property and it is adjacent to plot of Kolluri Anasurya.

13.7Learned counsel further submitted that there is no term or clause that plaintiff’s donors have relinquished their 322 Sq Yd covered under Decrees Ex.A14 and A15 property towards compromise of OS 74/2002, that Ex.B3 compromise was made in order to end the litigation of Ex.B4 property, that the compromise covered under

Ex.B4 is an independent settlement relating to only that settlement of dispute of Ex.B4 property, hence that compromise will not effect the rights of the suit property of the plaintiff that it is an independent compromise unconcerned with the suit property.

13.8Learned counsel next submitted that at the time of obtaining consent Decrees

Ex.A14 and A15, donors of plaintiff, on North and South showed land of Thipparapu

Gouraiah and roads on East and West, that at the time of Ex.A1 & A2, on North and

South, the land of defendant No.1 is shown as defendant No.1 purchased property from Thipparapu Gouraiah, hence, there is no discrepancy in respect of boundaries mentioned in Ex.A14, Ex.A15 and Ex.A1, A2 gift deeds and vehemently submitted that the property covered by Ex.A14, A15, A1 and A2 are one and the same and submitted that said fact was also admitted by DW1 in his cross examination.

13.9Nextly, learned counsel laid much emphasis on subdivisions of Sy.No.2372.

Learned counsel submitted that Sy.No.2372 was sub divided into sub divisions, but

Ex.B4, B5 and A16 of defendants do not refer to any sub division and they give the survey number as 2372, that sub-divisions are existing from the time of consent

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decrees, for example Ex.A5 and A7 show the sub division as 2372/C, A11 shows the sub division as 2372/B and the conduct on part of defendant No.1 shows that they intentionally created Ex.B4, B5 showing the survey number as 2372 without any sub division in order to deprive the rights of the plaintiff in respect of suit land in collusion with the original owner Thipparapu Gouraiah.

13.10 Learned counsel further submitted that DW1 is stating his version in his deposition and he is not speaking about the truth of sub divisions and he stated that he is not aware about consent decrees and purchase of land by Zubeda Begum and

Sarjana Yellaiah and Fakeer Ahmed from Thipparapu Gouraiah, which is not correct.

13.11 Nextly, learned counsel referred to the statements in the cross examination of

DW1 and again submitted that through Thipparapu Gouraiah already consent decrees were passed in favour of Zubeda Begum, Sarjana Yellaiah and Fakeer Ahmed and

Thipparapu Gouraiah cannot again sell the property to defendant No.1 and as such defendant No.1 has no right over Ex.A11 land. Nextly, learned counsel submitted that

DW1 admitted that boundaries mentioned in Ex.A11 are correct. Regarding evidence of DW2, learned counsel submitted that the evidence of DW2 is of that of an interested witness and it is only hearsay evidence and no weight can be given to evidence of

DW2.

13.12 Nextly, learned counsel submitted that defendant No.2 did not enter into witness box and she failed to prove her pleadings. On the report of Advocate

Commissioner, learned counsel submitted that the Advocate Commissioner located and identified the suit land with the help of plaintiff and defendants and that there is no dispute about the location and identification of suit land and property which is subject matter of compromise, that the Advocate Commissioner also identified and located the 70 Sq Yd of land in OS 74/2002 and measured the distance between suit land and

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compromise property i.e., 113 feet, hence, these two properties are different and located in different places, that the suit land in Sy.No.2372/C and the compromise property in OS 74/2002 is in Sy.No.2372/B.

13.13 Learned counsel further submitted that as per the Commissioner’s report and maps, it is clear that suit land is 322 Sq Yd, which is different from the compromise property in OS 74/2002, that plaintiff’s wife purchased 70 Sq Yd under registered sale deed from Kolluri Anasurya and it is adjacent and that she is in settled possession over said property.

13.14 Regarding objections filed by defendants to the Commissioner’s report, learned counsel submitted that the objections are not tenable, that the Advocate Commissioner executed the Warrant as per the work memo submitted by defendants, which is marked as Ex.A17 and that defendants requested to measure, identify the compromise property in OS 74/2002 and Commissioner considered the request of defendants and defendants cannot file objections against their request/work memo.

13.15 Regarding the plea raised by the defendants that the suit filed for mandatory injunction without seeking the relief of recovery of possession, learned counsel submitted that the donors of plaintiff acquired the property vide Ex.A14 and A15 consent Decrees, that the suit filed by the donors of plaintiff was for declaration and injunction which is Judgment in rem, hence Ex.A14 and A15 are binding on all, that they were validated under Sec.77 of Indian Stamp Act before the Sub-Registrar,

Huzurabad by paying required stamp duty on the decrees and thus plaintiff’s donors perfected their title and possession over the suit property which in turn, they gifted vide Ex.A1 and A2 registered gift deeds in favour plaintiff and plaintiff became absolute owner and possessor of the suit property and hence, plaintiff’s title and possession over the suit property is perfected, that the defendants without any right or

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title tried to modify the suit property by raising illegal structures, that plaintiff opposed and objected and on notice given by Nagara Panchayath proceedings, that defendant

No.2 stopped construction and went away from the suit land and this unused structures are to be removed, that the plaintiffs possession is still continuing from the time of donors and as on the date of filing the suit, plaintiff is in possession, hence, he did not seek recovery of possession and objection under Sec.34, 35 Specific Relief Act is untenable.

13.16 Regarding the argument of learned counsel for defendants that OS 74/2002 ended in compromise and as such, this suit is not maintainable, Learned counsel for plaintiff submitted that the subject matter in Ex.B3 compromise property is different and that said fact is also admitted by DW1 in his cross examination. Learned counsel further submitted that in OS 74/2002, the terms of compromise do not whisper about relinquishment of entire 322 Sq Yd of suit property in favour of defendant No.2 by receiving 70 Sq Yd from defendant No.2 and hence OS 74/2002 litigation is in respect of different property.

13.17 Regarding the Judgments and Decrees in OS 8/2009, learned counsel submitted that OS 8/2009 is in respect of Ex.B5 property whereas the present suit is filed for

Ex.B4 property, hence both suits are different and for different claims and that defendants have no concern with present suit property.

13.18 Regarding Judgment in OS 36/2009, learned counsel submitted that OS 36/2009 was dismissed as plaintiff’s donors did not contest the suit and that the present suit for declaration and mandatory injunction is a comprehensive suit of plaintiff, hence, the Judgments and Decrees in OS 74/2002, OS 8/2009 and OS 36/2009 which are injunction suits are not binding on the plaintiff.

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13.19 On framing of issues, learned counsel submitted that the defendants are trying to take advantage on technical ground, but they are ignoring their duties, that stage of issues and objections on issues passed away, that the defendants did not come forward to frame additional issues nor filed any petition for framing additional issue and hence, mere allegation cannot be considered.

13.20 Regarding additional evidence, learned counsel submitted that simply filing documents without giving any good reason is not sufficient, that even in oral arguments also no explanation is given, that the documents are irrelevant and inadmissible, they are concocted and created, if they are received much prejudice will be cause to plaintiff and the right of plaintiff to cross examine may be curtailed and sought to dismiss the petition.

13.21 In reply to the argument of learned counsel for defendants that the present suit is not maintainable by virtue of Ex.B3 Compromise decree, the written arguments submitted by the learned counsel for plaintiff is as follows (verbatim extracted):

What is Ex.B3 terms as per para No.2. The plaintiff was leaving 61/2 width, 97 feet length. Out of suit land towards Southern side in order to “facilitate” the defendants to search their plot by leaving this plot. The plaintiff to avoid litigation voluntarily accepted to leave 61/2 feet X 97 feet plot from her plot. (In this suit Ex.B4 plot) suit land to the defendant No.2.

And as per the para No.5 of term shows that the defendants that in view of compromise terms they are also withdrawn their claim in this suit to an extent of 515 Sq Yd. Means the defendant accepted that this (Ex.B4 herein) plot belongs to the plaintiff in OS 74/2002 and not to claim further in that suit property and they will search their plot where is locate in the bushes and leaving this plot in favour of the plaintiff, but they are not relinquishing their entire plots 161 + 161 Sq Yd i.e., 322 Sq Yd in favour of plaintiff. There is no close to relinquishing 322 Sq Yd of plot exclusively by receiving 70 Sq Yd only to settle this plot dispute the

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70 Sq Yd is leaving the plaintiff in favour of the defendant. It is clearly stated in terms to facilitate the defendants she leaving 70 Sq Yd out of (Ex.B4) plot admeasuring 585 Sq Yd and defendants not to further claim in future on this plot.

13.22 Learned counsel further submitted that the plaintiff’s donors got surveyed the entire plots and found their Decreed plots, cleared the bushes identified and demarcated their plots and executed gift deeds in favour of plaintiff and delivered physical possession, that defendant No.1’s plot is abutting the suit plot towards South and North, but defendants are falsely claiming that the suit plot is in middle portion of

Ex.B5 property of defendant No.2. Learned counsel submitted that in fact, there is no inch of property of defendant No.2 on the spot, that defendants created Ex.B4 for land measuring 585 Sq Yd and Ex.B5 for an extent of 507 Sq Yd in collusion with

Thipparapu Gouraiah on the same day with an ulterior motive to knock away the plot of donors, except the plots of donors of plaintiff measuring 161 + 161 Sq Yd, the remaining area made into plots was purchased by defendants No.1 & 2 and the donors of plaintiff refused to sell their plots and the main motive of defendants is either by hook or crook that plaintiff’s plots in Ex.A1 & A2 must merge in their plots to become one big compact block for their educational institution and playing ground purpose or build big building for them which is illegal.

14.The points that arise for determination in this First Appeal are -

1. Whether the Trial court failed to appreciate the oral and documentary evidence on record in the right perspective?

2. Whether Judgment and Decree dt.13.07.2022 in OS No.43 of 2012 passed by the Learned Senior Civil Judge, Huzurabad is sustainable and the suit of the plaintiff is to be dismissed?

3. To what relief?

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15.Defendants filed IA 1548 of 2024 (IA 568 of 2013 Old) under Order XL1 Rule 27 CPC seeking to receive certain documents as additional evidence and said petition is heard along with the First Appeal.

Points No.1 & 2:

On identification and Title of the suit property:

16.It is seen from the impugned Judgment before the learned Trial Judge that the main argument raised by the learned counsel for defendants is that the suit having been filed for declaration of title and perpetual injunction and mandatory injunction, the suit schedule property has to be clearly identified. It is seen that learned counsel for defendants referred to the different proceedings before the Courts, several admissions in the caveats Ex.B21 & B22, written statement and other documents of plaintiff and the two donors of plaintiff and argued that the suit schedule site is part of property purchased by defendant No.2 under registered sale deed Doct. No.1933/2000 dt.04.12.2000 and that it is not the property claimed by the plaintiff or plaintiff’s donors.

17.On this aspect, learned counsel for plaintiff relied upon the report of Advocate

Commissioner and submitted that the Advocate Commissioner identified the suit property as per the documents and that the Report is well supported by Ex.A17 Work

Memo given by the defendant counsel and thus, the suit property was identified.

18.It is an admitted fact that the two Donors of plaintiff viz, Bopparaju Rajyalaxmi @ Laxmi W/o late Ramulu and Swargam Kanakarajam S/o late Ellaiah are elder sister and elder brother of the plaintiff Swargam Laxminarayana. It is to be noted that in the cause title, father name of plaintiff is given as Narsaiah @ Narsimhulu. One more name to be noted is Swargam Kanakalaxmi who is wife of plaintiff.

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19.Admittedly, the original owner of land in Sy.No.2372 was one Thipparapu

Gouraiah. It is also an admitted fact that during the year 1988 and 1989, several suits came to be filed against Thipparapu Gouraiah by persons claiming to be purchasers of different extents of land in Sy.No.2372 from Thipparapu Gouraiah. It is seen from the documents exhibited by both sides that all those suits were filed for declaration of title and perpetual injunction and Consent Decrees were passed in said suits. The particulars of said suits are OS 1687/1989 (Ex.A14) and OS 1688/1989 (Ex.A15), OS 718/1986, OS 728/1986, OS 1040/1988 (Ex.A12), OS 490/1989 (Ex.A13). Thus, by the year 1989, there were multiple litigations in respect of different extents of land in

Sy.No.2372.

20.According to the plaintiff, his elder brother and elder sister (herein after called as donors of plaintiff) also filed two suits OS 1687/1989 and 1688/1989 for an extent of 161 Sq Yd each and consent Decrees were passed in said two suits on 29.01.1990.

Ex.A14 and A15 are certified copies of Judgments and Decrees in OS 1687/1989 and 1688/1989. The extent and boundaries of the property under Ex.A14 and A15 Consent

Decrees are relevant and they are as given in the table below:

Ex.ExtentSy.No.Boundaries A14161 Sq Yd2372/CEast: Land of G.P. Proposed land West: Land of Lane North: Land of defendant South: Land of S.Kanakarajam A15161 Sq Yd2372/CEast: Land of G.P. Proposed land West: Land of Lane North: Land of B.Raja Laxmi South: Land of defendant

21.It is not the case of the donors that they have purchased any other land from

Thipparapu Gouraiah in the same survey number nor they staked claim of title in respect of any other land in Sy.No.2372. When the boundaries of 161 Sq Yd each

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claimed by the donors of plaintiff are juxtaposed, the plot of Rajya Laxmi is on the

North and plot of Kanakarajam is on its South and they are abutting each other. When added, the extent of these two plots comes to 322 Sq Yd. In the consent Decrees of donors of plaintiff, the Northern and Southern boundaries of this compact block i.e., total extent of 322 Sq Yd is shown as land of defendant in said suits i.e., Thipparapu

Gouraiah. It is a fact that plaintiff is claiming title in respect of this 322 Sq Yd of land in the present suit.

22.Admittedly, in the year 2002, second defendant filed the suit OS 74/2002 on the file of Junior Civil Judge, Huzurabad seeking relief of perpetual injunction in respect of 585 Sq Yd in Sy.No.2372. Said suit was filed against the two donors of plaintiff, claiming title and possession under the strength of Ex.B4 registered sale deed Doct.

No.1933/2000 dt.04.12.2000. According to defendants, defendant No.2 purchased land in Sy.No.2372 from Thipparapu Gouraiah under Ex.B4 and B5, the relevant particulars of which are as follows:

Ex., Doct. VendorVendeeExtent & Boundaries No. & dt.Sy.No. Ex.B4ThipparapuUdgula Saroja585 Sq Yd inEast: Proposed Road 1933/2000 Gouraiah(D2)Sy.No.2372West: Kakatiya Junior dt.04.12.2000College North: Newly constructed Kakatiya High School H.No.12-281 (new) South: Plot of Kolluri Anasurya Ex.B5 ThipparapuUdugula 507.33East: Proposal Road 1934/2000 GouraiahSaroja (D2)Sq Yd in West: Plot of Syed Hussain dt.04.12.2000Sy.No.2372North: Plot of Vendee and near H.No.12-65/6 (old) 12- 280 (new) South: Plots of U.Rajaiah and A.Prathapa Reddy

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23.When the two properties under Ex.B4 & B5 are juxtaposed, the property under

Ex.B5 in an extent of 507 Sq Yd is towards North, to South of said property, there is property of Udugula Rajaiah i.e., husband of defendant No.2 and to South of it the 585

Sq Yd purchased by defendant No.2 under Ex.B5 is located. It is important to note that to the South of this 585 Sq Yd, an open plot of Kolluri Anasurya is shown.

Second defendant filed the suit OS 74/2002 alleging that the donors of plaintiff are interfering in her possession and that they dismantled the compound wall etc.

24.Ex.B1, B2, B3 are relevant to be discussed here. They are certified copies of plaint, written statement and compromise petition with sketch map in OS 74/2002. It is an admitted fact that second defendant filed OS 74 of 2002 and it is not disputed by the plaintiff that his two donors were the defendants in OS 74/2002 and that a compromise was entered into between defendant No.2 and his donors in OS 74/2002 vide Ex.B3.

25.As seen from Ex.B1 certified copy of plaint in OS 74/2002, said suit was filed by second defendant Udugula Saroja against Swargam Kanakarajam and Bopparaju

Rajyalaxmi alleging that she is the absolute owner and possessor of 585 Sq Yd in

Sy.No.2372 having purchased said land through registered sale deed Doct. No.1933 of 2000 dt.04.12.2000 from Thipparapu Gouraiah, that she is in possession of the property, that she obtained permission dated 30.08.2001 from Grampanchayath for raising compound wall, that she paid construction fees, that defendants without any right, title or possession over the suit property, that the defendants never objected plaintiff when she raised compound wall around the suit property, but they filed caveat petitions before the court on 02.04.2002 with false allegations and thereafter tried and demolished the compound wall to some extent in the night hours, that on 04.05.2002, defendants again illegally interfered and disturbed the possession of plaintiff and compound wall, but plaintiff with the help of her family members resisted the

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defendants. With such and other averments, defendant No.2 filed OS 74 of 2002 suit for bare injunction against the donors of plaintiff herein.

26.Ex.B2 is certified copy of written statement in OS 74/2002 filed by donors of plaintiff where they contended that the alleged vendor of plaintiff T.Gouraiah was not owner of suit land, he is not having any right, much less alienable right over the suit land, plaintiff cannot acquire any right under registered sale deed Doct. No.1933/2000 dt.04.12.2000, that grant of permission by Grampanchayath will not confer any title on the plaintiff, that plaintiff is neither the owner nor the possessor of suit schedule property, that they deny any demolition of the compound wall of plaintiff, they admit filing of caveat petitions on 02.04.2002 against the plaintiff and they filed the caveats as plaintiff was actually trying to interfere in their possession over their house plots located in Sy.No.2372/C.

27.Referring to the statement of defendant No.2 in the plaint that she constructed compound wall around the suit plot, the donors of plaintiff averred in their written statement that the compound wall towards North and West was already constructed by the owners of Kakatiya High School and Kakatiya Junior College. Further, the donors of plaintiff claimed that they purchased 161 Sq Yd each in Sy.No.2372/C from

T.Gouraiah the vendor of plaintiff, that T.Gouraiah suffered Decrees in OS 1687/1989 and OS 1688/1989 in their favour and since then, they are in possession of their respective plots by raising foundation up to the ground level, that their 322 Sq Yd is part and parcel of the suit land, that the suit land is in Sy.No.2372/C, but not in

Sy.No.2372.

28.The Donors of plaintiff in their written statement further averred that husband of plaintiff is owner and Correspondent of Kakatiya High School, which is towards

North of plots of defendants, that with an intention to extend his school with play

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ground, husband of plaintiff therein i.e., defendant No.1 herein demanded them to alienate their house plots, which they denied, upon which husband of plaintiff (D1 herein) engineered the suit and they sought to dismiss the suit.

29.Admittedly, OS 74 of 2002 ended in recording Compromise between the plaintiff i.e., defendant No.2 herein and the defendants i.e., the two Donors of the plaintiff herein. Ex.B3 is certified copy of terms of compromise which are significant to this case. The suit OS 74/2002 was Decreed in terms of compromise. The terms of

Compromise cannot be better explained except extracting the same which are as under:

1. It is agreed by the defendants that the suit land an area of 54 feet in width and 97 feet length is belongs to the plaintiff.

2. After filing of the suit the said Thipparapu Gouraiah and his broker Chinta Shankaraiah came to the plaintiff and requested her to leave the plot 6 ½ feet width with 97 feet length out of the suit land towards Southern side, in order to facilitate the defendants. The plaintiff to avoid litigation voluntarily accepted to leave 6 ½ feet X 97 feet plot from her plot i.e., suit land to defendant No.2. The plaintiff hereby declare that she will not have any right or possession over the plot measuring 6 ½ X 97 feet area shown in red colour in the sketch map enclosed to this petition. The plaintiff even leaving the said plot, she is having the plot 47 ½ width with 97 feet length and upon the said plot the defendants or their legal heir shall not claim any title or possession in future.

3. It is agreed by the defendants that they have to construct compound wall to the Southern side of plot of the plaintiff within house land i.e., at the edge of 47 ½ X 97 feet of length with their own expenses immediately as the old compound wall of the plaintiff was dismantled. Therefore this new compound wall belongs to plaintiff and defendants shall not have any right on the wall.

4. In order to know the better location of the suit land and to understand the terms of the compromise a sketch map showing the land left by the plaintiff to the defendants ( 61/2 X 97) in total 70 yards and the remaining suit land i.e., 47 ½

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X 97 feet is equal to 515 Sq Yd is enclosed herewith this petition upon which both parties signed.

5. It is further agreed by the defendants that in view of compromise terms they are also with drawn their claim in this suit to an extent of 515 Sq Yd.

30.A plan is also appended to the Terms of compromise. In this plan, the boundaries of 515 Sq Yd plot left to defendant No.2 Udugula Sarojana are shown as

North: Compound wall of Kakatiya High School H.No.12-281, West: Compound wall of Kakatiya Junior College; East: Road; South: 70 Sq Yd plot left carved out of 585 Sq

Yd plot of Udugula Saroja in given dimensions of 6 ½ X 97 feet. It is very important to note that to the South of the 70 Sq Yd of land whch was given in compromise to the elder sister of plaintiff, the boundary is given as land of Kolluri Anasurya which was later admittedly alienated by Bopparaju Rajalaxmi to Swargam Kanakalaxmi. The first and foremost point very important to note is that there is no road on the West shown in the plan.

31.Learned counsel for plaintiff tried to impress upon the court that there are two roads for his gifted plot and it is different from the subject matter of OS 74 of 2002.

He referred to the various documents of the year 1989 of which most of them are

Consent Decrees. Ex.B3 Compromise Decree and the Terms of compromise along with annexed plan filed before the court with the seal of the Court clearly shows road on the East and no road on the West and apart from that, it is seen that there is compound wall of Kakatiya College, which is also the college of husband of defendant

No.2 who is defendant No.1.

32.The next document to be appreciated is certified copy of registered document

No.3337/2003 dt.19.11.2003. This document was produced by defendants before the

Advocate Commissioner at the time of localization and identification of plots as per the suit record. It is important to note that the document filed and available on record

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is a certified copy. This document is also sought to be filed as additional evidence by the defendants, which is strongly opposed by the learned counsel for plaintiff. As per this registered sale deed Doct. No.3337/2003 dt.19.11.2003, Bopparaju Rajyalaxmi sold 139.40 Sq Yd in Sy.No.2372/B in favour of Swargam Kanakalaxmi who is none other than wife of plaintiff herein. The boundaries of this 139.40 Sq Yd are given as

North: Plot of Udugula Sarojana; East: Grampanchayath Road; South: Plot of purchaser; West: S.V.S. College house No.12-340.

33.Bopparaju Rajalaxmi is elder sister of plaintiff and is one of the donors of plaintiff. As to how Bopparaju Rajalaxmi acquired this 139.40 Sq Yd of property is silent in this document. However, she located this 139.40 Sq Yd between land of

Udugula Saroja on the North and land of Kanakalaxmi purchaser on the South. PW1 was questioned on this aspect of purchase of land of Bopparaju Rajalaxmi one of the two donors and one of the two defendants in OS 74/2002. It is seen above that the subject matter of OS 74 of 2002 is 585 Sq Yd in Sy.No.2372. PW1 in his chief affidavit affirmed that it came to his notice subsequently that defendant No.2 filed OS 74/2002 on the file of Junior Civil Judge, Huzurabad for injunction against his two donors. that a petition for compromise was filed and it was allowed. Interestingly, he further affirmed that however, himself and defendants in said suit (his two donors) compromised before the court and that as per the terms of compromise, 70 Sq Yd of open site carved out from the South of said suit land was allotted to Bopparaju

Rajyalaxmi for her convenience,

34.PW1 further affirmed that present suit land belongs to his two donors to the extent of 161 Sq Yd each, since it was barren land and it was not properly identified earlier due to rusticness and lack of proper education on part of his donors and due to their innocence and old age, that the present suit site is actually located between the

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two sides of defendant No.1 and it is only in Sy.No.2372/C and B and it is not at all the subject matter of OS 74/2002.

35.PW1 further affirmed that the present suit land is actually located at a little distance towards North of site in OS 8/2009. There is no whisper by the plaintiff about the Southern boundary of land in OS 74/2002 or in the compromise Decree in

OS 74/2002. He tried to make out a case that the 322 Sq Yd of land which was gifted

to him by his two donors is situated between the land of defendant No.1 on the North and South. It is very important to note here that this 322 Sq Yd of land is the same land which plaintiff claims as the subject matter of OS 1687/1989 and OS 1688/1989 and in respect of which there was compromise under Ex.B3 in OS 74/2002 between defendant No.2 herein and his donors. It is very clear that plaintiff’s case on location of the suit land is against the record in the earlier suits and is against the compromise decree in OS 74 of 2002.

36.At this stage, the plan appended to the plaint in the present suit is to be appreciated. Importantly, it does not show the 70 Sq Yd of land, which was carved out of 585 Sq Yd of land of defendant No.2. It shows 322 Sq Yd located between land of defendant No.1 on the North and South, but it does not show the land of Kolluri

Anasurya. In the light of Judgement and Decree in OS 74/2002 and the manner in which the donors of plaintiff gifted 322 Sq Yd of land to plaintiff and the pleas taken in the present suit by the plaintiff, the question that arises is - Whether the donors of plaintiff are still claiming title to the 322 Sq Yd of land. The answer is an obvious Yes, as the donors claiming right and title to 322 Sq Yd executed gift deeds in favor of the plaintiff.

37.It is the argument of learned counsel for plaintiff that there was no specific recital that the donors of plaintiff relinquished their right over 322 Sq Yd in the

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compromise in the earlier suit OS 74 of 2002, and as such, the donors of plaintiff still got their 322 Sq Yd. This argument of the learned counsel for plaintif is meaningless.

The terms of compromise in OS 74 of 2002 and the Decree in it are self explanatory.

The fifth term specifically states that the donors of plaintiff have no claim over 515 Sq

Yd of land. It is to be remembered here that the donors of plaintiff claimed 322 Sq Yd as part and parcel of 585 Sq Yd of land, which defendant No.2 claim to have purchased under Ex.B4 registered sale deed Doct. No.1933/2000 dt.04.12.2000.

38.As per Ex.B3 terms of compromise and Decree in OS 74 of 2002, defendant

No.2 left an extent of 70 Sq Yd out of 585 Sq Yd of land, which defendant No.2 purchased under Ex.B4 registered sale deed Doct. No.1933/2000 dt.04.12.2000 and there remains 515 Sq Yd of defendant No.2 and the donors of plaintiff have specifically agreed in the terms of compromise that they have no claim what so ever over said 515 Sq Yd of land. In the light of this fact, the claim of plaintiff that his donors still have 322 Sq Yd, that his donors did not relinquish any claim over this 322

Sq Yd is absurd.

39.At this stage, the earlier suits OS 8/2009 and OS 36/2009 have to be appreciated. Ex.B11 & B12 are certified copies of plaint and written statement in OS 8/2009 dt.27.01.2009, Ex.B13 and B14 are certified copies of plaint and written statement in OS 36/2009. Admittedly, the suit OS 8/2009 was Decreed on contest.

Reference is to be made to the observation of learned trial Judge in IA 156/2009 in OS 36/2009. While dismissing said IA, learned trial Judge in said suit at that stage itself observed that the donors of plaintiff are trying to seek assistance of the Court to locate their property. This aspect should be appreciated by the argument of learned counsel for plaintiff in their written arguments where they have submitted that after disposal of

IA 156/2009, they have cleared the bushes, identified and demarcated their plots and

gift deeds were executed in favor of plaintiff.

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40.This court observes that when in the first place, the donors of plaintiff themselves have no land in an extent of 322 Sq Yd, when it was not even identified, when its measurements are not known and when the donors of plaintiff have been claiming the land of defendants as their 322 Sq Yd through their written statement in

OS 74 of 2002, when the two donors failed to succeed in OS 74/2002 and entered into

compromise by which they got 70 Sq Yd which is also part of land of defendant No.2, the two donors of plaintiff, during pendency of OS 8 of 2009 and OS 36 of 2009 brought into existence Ex.A1 & A2 registered gift deeds as if they are title holders of 322 Sq Yd. All these acts on part of plaintiff and his two donors smack of malafied intentions to grab the property of defendants No.1 & 2 and not the other way.

41.Coming to the cross examination of PW1, this Court observes that there is extensive oral evidence adduced on record. Much of the oral evidence is relating to the contents of documents and boundaries of the properties mentioned in said documents.

This court observes that when there is documentary evidence on record, it is a wasteful exercise to discuss the oral testimony of the witnesses only to observe that the documents speak otherwise. When the documents speak for themselves, oral evidence again to speak about the contents of the documents is nothing but to test the memory of the witness and has no value. A witness can be asked to give the existing boundaries or boundaries of a particular piece of land at a particular point of time and need not be asked as to what the document states. This Court observes that the witnesses of both sides have stated from out of their memory on the contents of the documents and as the documents are available before the Court, the testimony of these witnesses as to the contents of the documents need not be discussed.

42.Firstly, PW1 was questioned about his donors entering into simple

Memorandum of understanding on 07.09.2002 with defendant No.2 in the presence of

Chitham Shankaraiah and other witnesses, his donors agreeing that 70 Sq Yd

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measuring 6 ½ X 97 feet be given by defendant No.2 to his elder sister Bopparaju

Rajalaxmi, his elder brother Swargam Kanakarajam not having any land and as such agreement to pay an amount of Rs.65,000/- by Chintham Shankaraiah to his brother, acceptance of the same by his elder brother on the same day and signing of the MOU by his donors i.e., his elder brother and elder sister, and basing on that, entering into compromise and the suit OS 74 of 2002 ending in compromise. It is very strange that when the record evidences that there is lengthy litigation in respect of suit property,

PW1 pleads ignorance of all these facts including compromise and claims to have acquired the suit property by gift from his donors.

43.Regarding the caveat petitions filed by his donors, PW1 pleaded ignorance of said fact. These caveat petitions are marked as Ex.B21 & B22. The donors of plaintiff filed caveat petitions No.16/2002 (Ex.B21) and 17/2002 (Ex.B22) dated 02.04.2002

before Junior Civil Judge, Huzurbad in respect of house plots 161 Sq Yd in

Sy.No.2372/C each against defendant No.2. In Ex.B21 caveat petition No.16/2002 filed by Bopparaju Rajyalaxmi, the boundaries of 161 Sq Yd in Sy.No.2372/C are mentioned as East: Road; West: Compound wall of SV College; North: Udugula

Sarojana (defendant No.2); and South: Swargam Kanakarajam. In another caveat petition No.17/2002 Ex.B22 filed by Swargam Kanakarajam, the boundaries for an extent of 161 Sq Yd in Sy.No.2372/C are mentioned as East: Road; West: Compound

Wall of SV College; North: Bopparaju Rajyalaxmi; and South: Kalluri Anasuya.

44.It is seen from the boundaries given in the caveat petitions, Western boundary of land claimed by the donors of plaintiff is shown as SV Junior College, which is run in Kakatiya Junior College. It is the argument of the learned counsel for defendants that plaintiff shifted the location of suit site from the admitted boundaries in caveat petition towards North by covering part of plot of defendant No.2 herein purchased by her under registered sale deed Doct. No.1934/2000 dt.04.12.2000.

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45.Coming to the cross-examination of PW1 on the boundaries given in the caveats filed by his donors and in is gift deed, he admitted that in his gift Deed, the

Western boundary is shown as SVS College @ Kakatiya Junior College. Contrary to the same, in the caveats, the donors of plaintiff showed a road to the West also. PW1 stated that according to him, there is a lane on the West of suit land and towards West of said lane, there are houses of Elkapally Mallaiah, Md. Khaja Bee, House of Mogili

Sammaiah. PW1 admitted that said three persons purchased land through registered sale deeds. When suggested that in the registered sale deeds of said three persons, on

Eastern side boundary compound wall of Kakatiya High School of defendants No.1 & 2 is shown, PW1 denied said suggestion.

46.Defendants now sought to exhibit said three registered sale deeds to buttress their case that said document show their Eastern boundary as Kakatiya School, which is nothing but the land of defendants No.1 & 2 and not the lane. It is a fact that said documents were filed by the defendants before the advocate Commissioner. These documents need not be received as additional evidence, as there is extensive oral admission of the boundaries by PW1 in his cross-examination. When suggested that there is lane to the West of lands of Mallaiah, Khaja Bee and Sammaiah, PW1 admitted said fact. Regarding purchase of land by his wife, PW1 admitted that his wife Swargam Kanakalaxmi purchased land from Kolluri Anasurya under registered sale deed Doct. No.2163/2002 dt.07.09.2002, the boundaries of said land are North:

Plot of B. Rajyalaxmi; South: Tin shed of Anishetti Parameshwar; East: Gram

Panchayath Road; West: SV college bearing Door No.12-340. It is important to note that the western boundary of this land is shown as SV College and not lane which is contrary to the case of the plaintiff that there is a road on the west. This plot of Kolluri

Anasury is shown on the southern boundary of the 70 Sq Yd of land given to the elder

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sister of the plaintiff by virtue of compromise in OS 74 of 2002 and this land is contiguous to the remaining 515 Sq Yd of land of Defendant No.2.

47.Most importantly, in his cross-examination, PW1 vehemently added that the 70

Sq Yd which was given under compromise in OS 74/2002 is on the North side of land which was purchased by his wife from Kolluri Anasurya. Thus, according to PW1, the property purchased by his wife Swargam Kanakalaxmi under the registered sale deed

Doct. No.2163/2002 dated 07.09.2002 is to the south of the 70 Sq Yd of land given to his sister Bopparaju Rajyalaxmi in terms of compromise in OS 74/2002.

48.This fact should be appreciated with the unmarked document No.3337/2003 which was produced by the defendants before the Advocate Commissioner along with several other documents and which the Advocate Commissioner filed along with his report before this court. As per this certified copy of registered sale deed document

No.3337/2003, Bopparaju Rajyalaxmi elder sister as well as one of the donors of plaintiff sold 139.40 Sq Yd in favour of Swargam Kanakalaxmi wife of plaintiff. The particulars of property sold are given as North: Plot of Udugula Sarojana; East:

Grampanchayath Road; South: Plot of purchaser; West: S.V.S College house No.12-

340. The dates of these two documents i.e., sale deed Doct. No.2163/2002 (Ex.B6) and Doct. No.3337/2003 show that the property under Ex.B6 Doct. No.2163/2002 was prior transaction made on 07.09.2002 and the property purchased under 3337/2003 was subsequent transaction made on 19.11.2003.

49.When these two properties are juxtaposed, the property sold under document

No.3337/2003 to wife of plaintiff correlates to 70 Sq Yd of property, which Bopparaju

Rajyalaxmi got under the compromise Decree. It is for the plaintiff to explain if

Bopparaju Rajyalaxmi got any other land for her to retain and gift it to plaintiff. The land sold under document No.3337/2003 clearly correlates to the location where 70 Sq

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Yd of land was given Bopparaju Rajyalaxmi and as per Ex.B3 compromise Decree and the sketch map appended to Ex.B3, this 70 Sq Yd is located to the South of land of defendant No.2 and North of land of Kolluri Anasurya. Kolluri Anasurya sold her land first to wife of plaintiff under registered sale deed Doct. No.2163/2002 and later

Rajyalaxmi sold 70 Sq Yd of land showing it as 139.40 Sq Yd vide Doct.

No.3337/2003 to wife of plaintiff. Plaintiff conveniently suppressed from filing these two documents. The evidence discussed above is sufficient to dismiss the suit of the plaintiff. However, so as not to have any doubt on the remaining evidence, same is also discussed here.

50.PW1 was next questioned about the criminal cases, his conviction by the trial court and appellate court of committing criminal trespass into land of defendants.

These facts are admitted and they are borne by the record. One fact which is apparent from said criminal proceedings is that the dispute is in respect of the same property which defendant No.2 is claiming as 515 Sq Yd, which is subject property of registered document Ex.B4 and subject matter of OS 74/2002.

51.Regarding the lane on the west, it was further suggested to PW1 that on his complaint given to Nagarapanchayath, Huzurabad, the officials visited the plot of defendant No.2 and found that there is no road on the West as alleged by him, PW1 denied the same, but admitted that Grampanchayath officials issued notice to him on 21.04.2008 and informed that they will measure the land on 26.04.2008. Be that as it may, it is not even the case of plaintiff that the Grampanchayath officials have come to conclusion that there is road to the West of land of defendant No.2.

52.Plaintiff relied upon Ex.A3 to support his case that Grampanchayath authorities also held that there is a road given to West. It is shown as resolution dated 05.11.2014 passed by Nagarapanchayath where the Grampanchayath resolved to reclaim the

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encroached road on the West of Kakatiya School. No conclusion can be arrived at basing on this resolution on the existence of road on the West, for the reason the simple statement in this resolution is that road was on the West of the Kakatiya School and it was occupied. On the other hand, PW1 himself admitted in his evidence that the

Western residents i.e., Khaja Bee, Mogili Sammaiah, Vanamala Mallaiah, Cheripalli

Teja, M.Kanakalaxmi and Madarsa school, showed their Eastern boundary as Kakatiya

School and not as lane. It is not as if the Resolution was passed alleging that said residents encroached the lane. Interestingly, when questioned about the Caveat petitions filed by his donor for an extent of 161 Sq Yd against defendant No.2, PW1 answered that he does not remember.

53.PW2 is none other than the son of Kanakarajam, one of the donors of plaintiff and he is nephew of plaintiff. He filed his chief affidavit affirming that he is one of the attestors of registered Gift deed Doct. No.4796/2009 and 4797/2009 dt.

18.09.2009. He affirmed that plaintiff was inducted into possession of the gifted property.

54.PW2 was extensively cross-examined by the learned counsel for defendants. In his cross examination, PW2 could not stick to his version given in his chief examination. PW2 straight away admitted in his cross examination that there is no road on the West of the disputed property by the date of execution of registered gift deeds Ex.A1 & A2. He admitted that suit plot is in the middle portion of plot of wife of defendant No.1 who purchased in an extent of 507 Sq Yd vide Doct. No.1934/2000 dt.04.12.2000. PW2 admitted that suit plot is bounded by compound wall on East and

West, that defendant and his wife constructed some structures in suit land about 15 years back and they are still existing (he deposed on 10.10.2018). Thus, this evidence of PW2 totally demolishes the case of plaintiff. When there are structures in the disputed land by the year around 2003 itslef, it is for the plaintiff to explain how

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vacant possession was delivered to him under Ex.A1 and A2 gift deeds in the year 2009.

55. PW3 is son of another donor Bopparaju Rajyalaxmi and he is also another nephew of PW1. He filed his chief affidavit and he also affirmed on the lines of chief affidavit of PW2. Coming to his cross examination, PW3 stated that he is not aware of compromise entered into by his mother and uncle with defendants and others, he know that there are cases filed between them. When suggested that suit property is in possession of defendants for the past 18 years, he denied the same. PW3 stated that he went to suit property about 6 years back. He denied that defendants constructed one shed, septic tank, compound wall and one gate over the suit property. This denial by

PW3 is against the case of the plaintiff as plaintiff admitted that defendants constructed said structures in the disputed property. PW3 admitted that the suit property is middle portion of land of Udugula Saroja and 507 Sq Yd was purchased by her vide Doct. No.1934/2000 dt. 04.12.2000. This evidence of PW3 is of no way helpful to the plaintiff and it rather supports the case of the defendants.

56.PW4 is examined as another witness and neighbor of suit lands. He filed his chief affidavit affirming that he purchased 242 Sq Yd of open plot from Panjala

Srinivas through registered document in the name of his wife and in the year 2002, they constructed a residential house in said plot, which was allotted house No.12- 337/1/C and they are paying taxes regularly.

57.The statements made by PW4 in his cross examination also totally demolish the case of plaintiff. PW4 is a retired teacher. He stated that he is resident of Huzurabad since his birth, his wife’s name is Swaruparani, his wife purchased plot from Panjala

Srinivas which is to the West of suit property. PW4 admitted that on the West of suit land, houses of Khaja Bee, Mogili Sammaiah, Vanamala Mallaiah, Cheripalli Teja,

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M.Kanakalaxmi and thereafter Madarsa school are situated. PW4 further admitted that there is Kakatiya School on the Eastern side of his house and to the houses of above said persons and said school belongs to defendants No.1. PW4 further admitted that he stated in his chief affidavit that defendant raised structure in the suit land. He further admitted that there is a septic tank, tin shed in the suit property. When suggested that they are constructed by defendants 8 years back, he denied the same.

Most significantly, PW4 admitted that Kakatiya School and open play ground is covered with compound wall on all sides. He admitted that even till date (he deposed on 31.10.2018) defendants are in possession over the suit land, but denied that defendants are in possession of suit land from 2009.

58.When asked to give the boundaries of land of donors of plaintiff, PW4 stated that he do not know. When asked to give the boundaries of suit land, he gave the boundaries as North and South: Land of defendant No.1 only. PW4 admitted that defendants No.1 & 2 are wife and husband. He further admitted that on the Eastern side of suit land, there is a road. He again added that there is road on the Western side of suit land that is towards East of his house and the houses of above said persons.

PW4 again changed his version and stated that there is no road on the East of his house houses of all other persons. Thus, on the existence of road to the West of the disputed suit land and residences of PW4 and others, PW4 stated that there is no road.

He added that himself and others approached the Nagara Panchayath in the year 2013 and complained that on the Eastern side of their houses there was a road and Nagara

Panchayath enquired and resolved that there is a road on the East of his house, but till now the road is not formed.

59.PW4 admitted that his lands and defendants lands are situated in private patta lands. He further stated that registered sale deed was executed in favour of his wife in the year 2002. Significantly, PW4 admitted that in the year 2002 since there was no

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road on the Eastern side of his plot and the plots of above said persons, in their sale deeds, they have shown the Eastern side boundary as Kakatiya School. These statements elicited in the cross examination of PW4 totally demolish the case about the existence of road to the East of plots and houses of PW4 and others and to the West of

Kakatiya School and the suit land.

60.On their part, defendants examined 1st defendant as DW1. Chief affidavit of

DW1 is reiteration of the facts pleaded in the written statement. DW1 was extensively cross examined by the learned counsel for plaintiff. Several statements elicited in the cross examination of DW1 highlighted in the written arguments filed by learned counsel for plaintiff are extracted here - “ that I do not know whether one Zubeda Begum and Sarjana Yellaiah and Fakeer Ahmed have purchased any land from Thipparapu Gouraiah consent decrees, that I have seen the consent decree of the donors of plaintiff, but I do not know exactly where the lands mentioned in the said consent decree of donors of plaintiff are exactly located.

Donors of plaintiff were having 161 Sq Yd of plots each in Sy.No.2372/C total in an extent of 322 Sq Yd as a compact block as they are adjacent to each other and the same is mentioned in consent decree under Ex.A14 and

A15.” “It is true that the name of Thipparapu Gouraiah was shown in Ex.A14 and A15 boundaries and my name is shown in Ex.A1 and A2 boundaries.

It is true that since I purchased the land of Thipparapu Gouraiah as such instead of his name, my name will be shown in boundaries in subsequent sale deeds. It is true that the suit property in OS 74/2002 and the property acquired by the donors of plaintiff through consent decrees is different.”

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61.Relying upon the above statements of DW1, learned counsel for plaintiff vehemently submitted that the defendant knows well about the decree property i.e., suit land, but intentionally gave statements as above. This court observes that the testimony of DW1 cannot be read in piece meal. It should be appreciated in total and contextual. DW1 was asked to speak about the consent decrees of donors of plaintiff and he stated as above. It is seen that DW1 further deposed that the donors of plaintiff were the owners of land mentioned in Ex.A14 and A15 and he never purchased any land in those boundaries and he is not concerned with the lands mentioned in Ex.A14 and A15 property, that the boundaries in Ex.A14 and A15 and Ex.A1 and A2 are different. Ex.A14 and A15 are the consent Decrees in the suits filed by donors of plaintiff.

62.It is a fact that defendants are not claiming the disputed suit land as the land under Ex.A14 and A15. Their case is that the disputed land of 585 Sq yd of defendant

No.2 is the suit land in OS 74 of 2002 and this fact is borne by the compromise recorded in OS 74 of 2002. The above statements of DW1 are of no significance to the plaintiff. The documents speak extensively about the location of the lands claimed by both sides and their predecessors in title. DW1 in his cross-examination categorically stated that his wife filed OS 74/2002 in respect of property purchased in her name and that said property does not belong to the defendants in that suit (donors of plaintiff).

63.This court observes that in the light of the above discussion, where PW1 i.e.

plaintiff himself, his witnesses PW2, PW3 and PW4 themselves made several admissions totally demolishing the case of plaintiff, the above statements of DW1 cannot even be considered as admissions. As a matter of fact, when the compromise

Decree in OS 74/2002 evidences that the claim of donors of plaintiff in respect of 322

Sq Yd was not upheld and the compromise was to the effect that the donors of plaintiff

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admitted that they have no claim what so over said 515 Sq Yd of defendants No.1 & 2, the question is from where these 322 Sq Yd of land is held by donors of plaintiff. The donors of plaintiff have no land at all except the 70 Sq Yd which was given to

Bopparaju Rajyalaxmi under the terms of compromise Decree Ex.B3, which was sold by Bopparaju Rajyalaxmi to wife of plaintiff Swargam Kanakalaxmi and Kanakalaxmi merged said 70 Sq Yd of plot with more extent along with plot purchased by her from the Southern neighbor Kolluri Anasurya and it is the only plot plaintiff or his wife must be in possession.

64.I have thoroughly gone through the Report of Advocate Commissioner. The

Advocate Commissioner had pointed out this 70 Sq Yd of land at a distance of 113

Feet from the disputed suit plot. The Advocate Commissioner absolutely failed to identify the different properties of the different purchasers as given in the work memo.

This Court observes that when such big piece of land in one survey number is fragmented into bits and pieces and when it is shown that these bits and pieces were sold as house plots to the prospective purchasers and the prospective purchasers constructed their houses and are residing in their houses and when several disputes arose in respect of vacant pieces of land in the same survey number, the minimum duty on part of the Advocate Commissioner is to verify the location of entire Sy.No.2372 and to locate land of each purchaser including the land of the donors of plaintiff vis a vis the subject matter of compromise decree in OS 74 of 2002, which the Advocate

Commissioner failed to do so.

65.This court observes that even if it is assumed for a moment that the land located by Advocate Commissioner i.e., suit land is not the land of defendants No.1 & 2, it does not in any way lead to a conclusion that it is the 322 Sq Yd of land of donors of plaintiff, which they gifted to the plaintiff. Burden is only on the plaintiff to prove his case on his own strength which he utterly failed. Learned trial Judge failed to even

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discuss the aspects necessary for localizing a disputed piece of land and failed to appreciate the oral and documentary evidence in the right perspective. I hold that the plaintiff in the first place failed to prove that his donors were having title for 322 Sq

Yd of land and that it is the suit schedule land which was gifted to him. In view of my above discussion, I hold that the there is no necessity to receive any additional evidence and IA 1548 of 2024 (IA 568 of 2013 Old) under Order XL1 Rule 27 CPC filed by the defendants stands closed.

Whether suit for mere declaration of title without seeking further relief is

maintainable?

66.It is also the argument of the learned counsel for defendants that the plaintiff having filed the suit for declaration of title and mandatory injunction and perpetual injunction, failed to seek any relief of recovery of possession. On this aspect, learned counsel for plaintiff submitted that they are in possession of the suit land for which they have sought for mandatory injunction. Regarding the reliefs sought and the cause of action, it is better to extract the relevant cause of action portion which reads as - “arose on 18-4-2012 when the Defendants raised illegal constructions while interfering with the peaceful possession of the plaintiff forcibly and also on 31-5-2012 when the Defendants denied the title of the plaintiff while trying to dispossess the plaintiff from the suit site.”

67.From the above pleading it is apparent that on one hand, plaintiff is claiming that defendants raised illegal constructions and sought for mandatory injunction for demolition of the structures and on the other hand is also asserting that he is in possession of the suit land. Evidently, the suit land is 322 Sq Yd and plaintiff did not distinguish the different extents containing the structures in the suit land. When this

Court questioned learned counsel as to the relief of mandatory injunction, learned

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counsel submitted that they are seeking mandatory injunction of demolition of structures raised by the defendants and yet answered that plaintiff is in possession of the land on which the structures were raised. This argument of the learned counsel for plaintiff is untenable.

68.Hon’ble Apex Court had time again held that when the plaintiff is out of possession of suit property as on the date of filing the suit, the suit for mere declaration of title without seeking the relief of recovery of possession is not maintainable. In recent Judgment Vasantha vs Rajalakshmi @ Rajam dt.13.02.2024, the Apex Court reiterated as follows:

“28. We now proceed to examine the law on this issue. As submitted by the learned senior counsel for the Appellant, in Vinay Krishna v. Keshav Chandra (2-Judge Bench)29, this Court while considering Section 42 of the erstwhile Specific Relief Act, 1877 to be pari materia with Section 34 of SRA, 1963 observed that the plaintiff’s not being in possession of the property in that case ought to have amended the plaint for the relief of recovery of possession in view of the bar included by the proviso.

29. This position has been followed by this Court in Union of India v. Ibrahim Uddin (2-Judge Bench) 30, elaborated the position of a suit filed without the consequential relief. It was observed:

“55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.

56. In Ram Saran v. Ganga Devi [(1973) 2 SCC 60] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC 129] this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit

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seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [(2011) 4 SCC 567)

57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.

58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same.”

30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) thr. LRs (2-Judge Bench)31, the purpose behind Section 34 was elucidated by this Court. It was observed that the purpose behind the inclusion of the proviso is to prevent multiplicity of proceedings. It was further expounded that a mere declaratory decree remains non-executable in most cases. This Court noted thatthe suit was never amended, even at a later stage to seek the consequential relief and therefore, it was held to be not maintainable. This position of law has been reiterated recently in Akkamma and Ors. v. Vemavathi and Ors. (2-Judge Bench)32

31. This Court in Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and Others (2-Judge Bench)33 while reversing the High Court decree, observed that because of Section 34 of the SRA, 1963, the plaintiff not being in possession and claiming only declaratory relief, ought to have claimed the relief of recovery of possession. It was held that the Trial Court rightly dismissed the suit on the basis that the plaintiff has filed a suit for a mere declaration without relief for recovery, which is clearly not maintainable.

32. That apart, it is now well settled that the lapse of limitation bars only the remedy but does not extinguish the title. Reference may be made to Section 27 of the Limitation Act. This aspect was overlooked entirely by

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the High Court in reversing the findings of the Courts below. It was not justified for it to have overlooked the aspect of limitation, particularly when deciding a dispute purely civil in nature.

33. Adverting to the facts of the present case, on a perusal of the plaint, it is evident that the plaintiff was aware that the appellant herein was in possession of the suit property and therefore it was incumbent upon him to seek the relief which follows. Plaintiff himself has stated that defendant no. 1 was in possession of the subject property and had sought to transfer possession of the same to defendant no.2, thereby establishing that he himself was not in possession of the subject property. We are not inclined to accept the submission of the learned counsel for the respondent on this issue. We note that after the death of the life-estate holder in 2004, there was no attempt made by the original plaintiff to amend the plaint to seek the relief of recovery of possession. It is settled law that amendment of a plaint can be made at any stage of a suit34, even at the second appellate stage.”

69.In the present suit, when it is pleaded in the plaint that structures were raised by the defendants and when those structures were sought to be demolished, it is an admission that possession is with the defendants and not with the plaintiffs. Hence, plaintiffs should seek the relief of recovery of possession of the suit land along with the relief of declaration of title and mandatory injunction and in the absence of seeking the relief of recovery of possession, the suit merely for declaration of title and mandatory injunction to demolish the structures is bad under Section 34 of Specific

Relief Act, as rightly argued by the learned counsel for defendants. It is also to be noted that it is not the case of the plaintiffs that the entire 322 Sq Yd of disputed suit land is having structures without any open place. Thus, the suit for mere declaration of title is not maintainable.

Whether Issues were properly framed or not?

70.One more argument is raised by the learned counsel for defendants on the manner of framing Issues. It is observed by the learned Trial Judge in the impugned

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Judgment that issues were not properly framed. Learned Trial Judge, referring to the authority of Hon'ble High Court of AP at Hyderabad in Prathyusha Export (P)

Limited.... Vs. Manoj Tadepally and another 2015 (4) ALT 553 observed that the parties are well aware of the area of controversy and also adduced evidence in relation thereto, therefore, having brought the fact of non framing of proper issues to the notice of the counsel on both side, said court proceeded to dispose of the matter for just avoid unnecessary delay in the matter and decided the suit without framing the necessary issues.

71.It is seen from the impugned Judgment that only one issue on the aspect of declaration of title was framed. Learned Trial Judge observing as above on framing of only one Issue, in said Issue No.1 itself, discussed the evidence regarding the reliefs of declaration of title and mandatory injunction. Still, learned trial Judge did not discuss the relief of perpetual injunction sought by the plaintiff to restrain the defendants from interfering in his possession over the suit property.

72.The extensive oral and documentary discussion made above in this First Appeal shows that the learned Trial Judge erred in not framing proper Issues when he noticed the same. It is not as if there are only two reliefs i.e., declaration of title and mandatory injunction for demolition of structures. The relief of perpetual injunction restraining the defendants from interfering in the possession of plaintiff over the suit land is also sought which runs contra to the relief of mandatory injunction. Of course, the parties might have been well aware of the area of controversy and adduced evidence in relation thereto. However, a clear and definite finding has to be given also on the identity, title and possession of the suit property. The question of identity and title of the suit property would be discussed in the Issue framed concerning the relief of declaration of title. However, there is neither any discussion, nor any appreciation

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of evidence regarding possession of the suit property regarding the cause of action and relief sought seeking perpetual injunction. I hold that this is a case where non framing of Issues also resulted in misconceived findings and miscarriage of justice and on this ground also, the impugned Judgment is liable to be set aside.

73.In view of my above discussion, I hold that Learned trial Judge failed to appreciate the oral and documentary evidence on record in the right perspective and came to wrong conclusions. The impugned Judgment and Decree passed by the trial court needs interference and the same is liable to be set aside. These points are decided in favor of defendants and against the plaintiff.

Point No.3:

74.In view of the findings given in Points No.1 and 2, the Appeal is to be

Allowed.

75.IN THE RESULT, the Appeal is Allowed with costs through out, setting aside the impugned Judgment and Decree dt.13.07.2022 passed by the learned Senior Civil

Judge, Huzurabad in OS 43/2012, thereby Dismissing the suit of the plaintiff.

Partly Typed by Me and Partly Dictated to the Stenographer, transcribed by her, Corrected and Pronounced by Me in the Open Court, on this the 11th day of April, 2025.

PRL. DISTRICT JUDGE,

KARIMNAGAR.

APPENDIX OF ADDITIONAL EVIDENCE

-NIL –

PRL. DISTRICT JUDGE,

KARIMNAGAR.

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE

KARIMNAGAR.

PRESENT : SMT B. PRATHIMA

Principal District Judge

Karimnagar.

Monday, the 7th dayof April, 2025.

ORIGINAL SUIT NO.49 OF 2016

Between:

Peddapeta Surendra Chary S/o Shankarachary, age: 45 years, occ: Business, R/o. Husnabad village and Mandal of Karimnagar District. ….Plaintiff

And

1. Seepalli Rajaiah S/o Lalaiah, age: 66 years, occ: Business, R/o. Velichala V/o. Ramadugu Mandal of Karimnagar District.

2. Sreepalli Anumavva W/o late Rajaiah, age: 68 years, occ: Household,

3. Sreepalli Anjali D/o late Rajaiah, age: 50 years, occ: House hold,

4. Sreepalli Pochamallu S/o late Rajaiah, age: 46 years, occ: RMP,

5. Sreepalli Sravan Kumar S/o late Rajaiah, age: 42 years, occ: Agriculture, All are R/o. Velichala village of Ramadugu Mandal of Karimnagar District. (Defendants No.2 to 5 were brought on record as per orders dated 04.07.2024 in

IA No.372 of 2022.)

…. Defendants *** This suit came before me for final hearing in the presence of Sri M.Ramakrishna Chary, Advocate for the plaintiff and Sri J. SatyanarayanaRao,Advocate for Defendants, having heard and having stood over for consideration till this day, this court made the following:

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

1.Sole Plaintiff filed the suit seeking the relief of Specific Performance of agreement of sale dt.28.11.2011 by directing the sole defendant (since died and represented by legal representatives defendants No.2 to 5) to execute registered sale deed in respect of suit schedule property in favour of plaintiff.

Page 2 of 25 OS 49 of 2016 PDJ Karimnagar

Brief averments of the plaint are as follows:

2.1Defendant is owner and possessor of open plot bearing No.11/2 admeasuring 244.40 Sq Yd in Sy.No.1349, which defendant purchased vide registered sale deed

Doct. No.29/1992 dt.04.01.1992. Defendant constructed four rooms with RCC roof top and got house No.10-3-504/1 through Municipal Corporation, Karimnagar in said land. As of 28.11.2011, said house is standing in the name of defendant. Defendant was intending to sell said property. One Beeraiah and another who mediated through defendant and his sons approached plaintiff and mediated to purchase said property from defendant. Defendant was in need of money to avoid sale of said property by

Deccan Grameena Bank, where from defendant obtained loan by mortgaging said property.

2.2Accordingly on 28.11.2011, an agreement was written agreeing to sell said property to plaintiff by defendant for an amount of Rs.60 Lakhs on NJ Stamp Paper worth Rs.100/- (5 stamps of Rs.20/- each). Defendant signed the same with freewill

before the witnesses A.Beeraiah and K.Ram Mohan and all the family members of

defendant. To prevent unforeseen future circumstances, plaintiff obtained signatures of defendant’s wife, children and one Muthaiah in the presences of witnesses.

2.3As per said agreement, plaintiff paid Rs.3 Lakhs on the spot as EMI and agreed to pay Rs.15 Lakhs as first installment within 15 days, another Rs.15 Lakhs within 35 days towards second installment and remaining amount of Rs.27 Lakhs is to be paid within three months from the date of execution of document i.e., on or before 28.02.2012 and on receipt of entire amount, defendant agreed to execute registered sale deed in favour of plaintiff and to hand over physical possession of said property.

But defendant utterly failed to take the amount as per agreement and failed to execute

Page 3 of 25 OS 49 of 2016 PDJ Karimnagar registered sale deed in favour of plaintiff and thereby, plaintiff is constrained to file the suit.

2.4Plaintiff approached defendant through mediator Beeraiah to pay the first installment of Rs.15 Lakhs on 11.12.2012, but defendant refused to accept it on the pretext that defendant’s sons and daughter were quarreling with each other on division of amount and were pressurizing him not to pay any amount to his daughter and defendant’s son is demanding entire amount of first installment of Rs.15 Lakhs, saying so defendant asked plaintiff to wait for some days and pay the amount as and when asked by him. On 23.12.2011, defendant asked plaintiff to pay Rs.7 Lakhs but not the due installment amounts due to above reasons.

2.5As per request of defendant, plaintiff paid Rs.7 Lakhs on 23.12.2012 for which defendant issued a receipt in token of receiving total sum of Rs.10 Lakhs which is inclusive of EMD amount of Rs.3 Lakhs. S. Pochamallu and S.Venugopal both sons of defendant signed on said receipt as witnesses. As per request of defendant to withhold sale of said property by Deccan Grameena Bank, plaintiff also repaid Rs.1 lakh on 24.12.2011 i.e., on the very next day of defendant issuing receipt of Rs.10

Lakhs and while disbursing from defendant’s house, he requested plaintiff to pay the remaining amount of Rs.8 Lakhs of first installment and total amount of Rs.15 Lakhs of 2nd installment i.e., altogether Rs.23 Lakhs after one month.

2.6As per said advise, mediator Beeraiah approached defendant on 21.01.2012 with agreed amount of Rs.23 Lakhs, but defendant again received the same (did not) saying that as there were disputes going in his house by some of his family members over distribution of said amount. Plaintiff asked defendant on several occasions by going to defendant’s house along with Beeraiah with agreed amount, but defendant

Page 4 of 25 OS 49 of 2016 PDJ Karimnagar postponed the same and defendant avoided to receive the same on the pretext of ill health of defendant’s second son.

2.7Finally, sensing some foul play plaintiff took steps to convene panchayath

before same mediators i.e., Beeraiah and K.Ram Mohan and approached defendant’s

house on 20.02.2013 and contract’s fulfillment, on that defendant agreed before elders that defendant will get the said property registered by taking remaining entire amount after Dassera festival. Plaintiff and mediators returned to house and on 21.08.2013 plaintiff along with mediators approached defendant along with balance amount, but defendant refused the same. Subsequently, defendant’s eldest son approached plaintiff on so many occasions and requested to pay remaining amount by saying that his younger brother was ill and they have to take him to big hospital for treatment, but plaintiff did not pay any amount to him.

2.8Subsequently, defendant on his own accord sent his eldest son to plaintiff and advised to pay Rs.37 Lakhs amount to him by saying that defendant’s second son got paralysis and is serious and bed ridden and to take him to big hospital and that he will take remaining amount at the time of registration after Dassera festival. Plaintiff after giving Rs.37 Lakhs to second son of defendant got executed a promissory note from defendant’s eldest son S. Pochamallu towards security. Plaintiff came to know that defendant’s second son died in the month of September, 2013. In the month of

October, 2013 plaintiff went to defendant to make courtesy call and on that occasion also, defendant acknowledged the payments and receipt of Rs.37 Lakhs to his eldest son.

2.9After Dassera festival in the year 2013, plaintiff along with Beeraiah went to defendant’s house and requested to register said property in the name of plaintiff by taking remaining Rs.12 Lakhs, but defendant is avoiding on one pretext or the other

Page 5 of 25 OS 49 of 2016 PDJ Karimnagar and is trying to avoid to meet the plaintiff and to talk to him. Plaintiff got issued legal notice on 12.01.2016 and same was served to defendant on 13.01.2016, defendant did not come forward, but gave reply notice 06.02.2016 which was served on 08.02.2016.

In said reply, defendant admitted entering into agreement of sale and all the facts.

Hence, the suit.

Written statement averments of defendant:

3.1All the suit allegations are wrong. Plaintiff did not approach the court with clear hands. Plaintiff is not ready to perform his part of contract. Plaintiff has no right to claim the relief on his own mistake. It is true that defendant is owner and possessor of open plot bearing No.11/2 measuring 244.40 Sq Yd in Sy.No.1349 at Karimnagar, which was purchased by defendant vide registered sale deed Doct. No.29/1992 dt.04.01.1992 and defendant constructed four rooms with RCC roof top and got house

No.10-3-504/a through Municipal Corporation, Karimnagar. The same stands in the name of defendant. It is false and denied that by the date of transaction 28.11.2011, the suit house was in the name of defendant.

3.2It is denied that defendant was intending to sell the above suit property through mediator Beeraiah and another, that defendant was immensely in need of money to avoid sale of said property by Deccan Grameena Bank where defendant obtained loan by mortgaging said property. The plaint averments regarding payment of amount is denied. All the plaint averments are denied.

3.3The true facts of the case are that defendant (sic plaintiff) has no source of income to pay the sale consideration amount, defendant (sic plaintiff) paid only earnest amount of Rs.3 Lakhs and not paid Rs.7 Lakhs and had not paid any amount of Rs.37

Lakhs to any family member of defendant. Plaintiff was never ready to perform his part of contract and to grab the amounts from defendant, plaintiff created all false

Page 6 of 25 OS 49 of 2016 PDJ Karimnagar allegations and created receipts. Plaintiff never shown his readiness and willingness to perform his part of contract. Plaintiff has no right to demand defendant to execute registered sale deed in his name. Plaintiff is not entitled under above false and fabricated documents. The claim of plaintiff is barred by law. Hence, the suit may be dismissed.

Averments of Additional Written statement of defendant:

4.Plaintiff showed the suit property as open plot bearing No.11/2 measuring 244.40 Sq Yd in Sy.No.1349. After 3 years of filing of suit, he amended the suit and added open plot bearing No.11/2 admeasuring 244.40 Sq Yd in Sy.No.1349 including existing house with four rooms bearing H.No.10-3-504/1. The amendment is barred by law. Amended relief is not entitled by plaintiff and suit is not maintainable. As per

Agreement dated 28.11.2011, plaintiff is liable to pay the last installment on or before 28.02.2012 and the suit ought to have filed on or before 27.02.2015, but the plaint was filed on 13.04.2016. Hence, the suit is barred by law. Limitation does not start from the date of legal notice dated 13.01.2016, plaintiff wrongly claimed the limitation from the date of legal notice.

Averments of Additional Written Statement of defendant No.2:

5.The alternative relief of return of sale consideration is barred by limitation. The above suit was filed on 13.04.2016 and the alleged amendment was carried on 03.03.2025. Hence, it is barred by limitation. Recovery of amount must be sought within 3 years from the date of cause of action. In the above suit, it is also barred by limitation. Hence, the suit may be dismissed.

6.Basing on the above pleadings, the following issues were framed for trial on 05.06.2017:

Page 7 of 25 OS 49 of 2016 PDJ Karimnagar

1. Whether the suit agreement of sale is true, valid and binding on the defendant?

2. Whether the plaintiff was ready and willing to perform the part of contract?

3. Whether the suit is within limitation?

4. Whether the plaintiff is entitled to decree directing defendants to execute registered sale deed in respect of suit property by taking Rs.12,00,000/- and if defendants failed to do the same, to get the sale deed executed through due process of law, as prayed for?

In the alternative

Whether plaintiff is entitled for refund of an amount of Rs.48 Lakhs from the defendants?

5. Whether the alternative relief of refund of amount is within limitation?

6. To what relief ?

Note: Issue No.4 was recast and Additional Issue in Issue No.5 was framed on 10-03-2025.

7.During the course of trial, Plaintiff examined himself as PW1 and got marked

Ex.A1 to A8 and also examined PW2 and PW3. On behalf of defendants, defendant

No.5 examined himself as DW1 and No documentary evidence was adduced on behalf of defendants.

8.Heard both side counsel. I have also perused the extensive Written arguments submitted by the learned counsel for plaintiff. Herein after reference to ‘defendant’ is reference to ‘1st defendant’ in the suit.

Arguments advanced by Learned Counsel for Plaintiff:

9.1I have perused the written arguments submitted by Learned counsel for plaintiff. Learned counsel for plaintiff submitted that by examining PW2 and by exhibiting Ex.A1 to A5, plaintiff proved his case that he paid part sale consideration of

Page 8 of 25 OS 49 of 2016 PDJ Karimnagar

Rs.47 Lakhs and that only due to time taken by the defendant himself, plaintiff could not pay the balance amount. Learned counsel referred to the several statements in the cross-examination of DW1 and submitted that DW1 failed to deny the payments and thus, it is to be held that plaintiff paid Rs.47 Lakhs to the defendant.

9.2Learned counsel further submitted that in the event, this court comes to a conclusion that specific performance of Ex.A1 agreement of sale cannot be ordered, this court can grant the relief of refund of part sale consideration amount of Rs.47

Lakhs paid by the plaintiff to the defendant.

Issues No.1 & 2:

10.According to plaintiff, defendant is the absolute owner and possessor of suit schedule property, that defendant obtained loan by mortgaging the suit property with

Grameena Bank, that the suit land was going to be put for sale and to avoid bringing the suit house for sale towards repayment of said loan, defendant through mediators

Beeraiah and another person mediated with plaintiff for sale of suit land, that defendant offered to sell the suit land to plaintiff for a total sale consideration of

Rs.60,00,000/-, that plaintiff accepted the same and an agreement in writing under

Ex.A1 was entered into between plaintiff and defendant, that defendant received Rs.3

Lakhs towards advance.

11.It is also the case of plaintiff that to avoid any unforeseen future circumstances, plaintiff got the agreement of sale signed by wife and sons of defendant, that as per the conditions stipulated under Ex.A1, the first installment of Rs.15 Lakhs has to be paid within 15 days, the second installment of Rs.15 Lakhs has to be paid within 35 days and the remaining amount of Rs.27 Lakhs has to be paid within three months from the date of execution of document i.e., on or before 28.02.2012 and on receipt of entire amount, defendant has to execute the registered sale deed.

Page 9 of 25 OS 49 of 2016 PDJ Karimnagar

12.Plaintiff further claimed that through the mediator Beeraiah, he offered first installment on 11.12.2011, but defendant refused to accept it on the pretext that there was dispute between his sons and daughter on distribution of amount and asked the plaintiff to wait for some days, that on 23.12.2011, defendant asked plaintiff to pay

Rs.7 Lakhs and as per the request of defendant, plaintiff paid Rs.7 Lakhs on 23.12.2011, for which defendant issued receipt in token of receiving total amount of

Rs.10 Lakhs.

13.Plaintiff further claimed that both sons of defendant i.e., S. Pochamallu and S.

Venugopal signed on the receipt dated 23.11.2011 as witnesses. Nextly, plaintiff claimed that to with hold sale of property by Deccan Grameena Bank, as per request of defendant, plaintiff paid Rs.1 Lakh on 24.12.2011 i.e., on the very next day of defendant issuing receipt for Rs.10 Lakhs and at that time, defendant requested plaintiff to pay the remaining amount of Rs.8 Lakhs of first installment and amount of

Rs.15 Lakhs of second installment i.e., total Rs.23 Lakhs to him after one month, that as per advise of mediator Beeraiah, plaintiff approached defendant on 21.01.2012 with the agreed amount of Rs.23 Lakhs, but defendant again did not receive the same by stating that there are family disputes going on his house over distribution of said amount.

14.Plaintiff further claimed that sensing some foul play, he took steps to convene panchayath before mediators i.e., Beeraiah and K.Ram Mohan and approached house of defendant on 20.02.2012 to ask about the agreement and its fulfillment, on that, defendant agreed to receive the remaining amount and register the property after

Dussera festival and made oath on his family members, plaintiff believing the same returned from house of defendant and on 21.08.2013, plaintiff along with balance sale consideration amount, approached the defendant to execute registered sale deed as per agreement of sale, but defendant refused to receive the same.

Page 10 of 25 OS 49 of 2016 PDJ Karimnagar

15.Plaintiff further claimed that defendant’s eldest son approached him on many occasions and requested to pay the remaining amount saying that his younger brother was ill and they have to take him to hospital for treatment, but plaintiff did not pay any amount to him, later defendant on his own accord sent his eldest son to plaintiff and advised to pay Rs.37 Lakhs amount to him by saying that second son of defendant got paralysis and he is serious and bedridden and have to take him to big hospital and wanted to settle the family disputes among them, that plaintiff gave an amount of

Rs.37 Lakhs to defendant’s son on 15.07.2013, but got executed a promissory note by eldest son S. Pochamallu towards security, later plaintiff came to know that second son of defendant died in the month of September, 2013 and plaintiff went to house of defendant in the month of October, 2013 as courtesy call to meet and on that occasion also, defendant acknowledged the payments and receipt of Rs.37 Lakhs through his eldest son.

16.Plaintiff further claimed that he was ready to pay the balance amount of Rs.12

Lakhs as defendant received total Rs.37 Lakhs, and he on number of occasions approached the defendant and requested to register the suit property in his name by receiving the remaining amount of Rs.12 Lakhs, but defendant is postponing the same on one or other pretext, he also got issued legal notice on 12.01.2016 and the same was served on defendant on 13.01.2016, that in spite of receiving legal notice, defendant neither replied nor came forward to play his part within stipulated time and gave a false reply on 06.02.2016 denying the execution of agreement of sale and to receive

Rs.3 Lakhs.

17.It is gathered from the written statement of defendant that he did not admit in as many words about execution of agreement of sale, receiving of amount of Rs.3 Lakhs and Rs.7 Lakhs total Rs.10 Lakhs. Paragraphs No.1 to 7 of the written statement are verbatim reproduction of plaint paragraphs and in the end of each paragraph, the words

Page 11 of 25 OS 49 of 2016 PDJ Karimnagar ‘it is wrong and denied’ are added. In paragraph No.8 stated as true facts of the case, defendant contended that defendant (sic plaintiff) has no source of income to pay sale consideration amount and that defendant (sic plaintiff) paid earnest amount of Rs.3

Lakhs and did not pay Rs.7 Lakhs or Rs.37 Lakhs to family members of defendant, that plaintiff was not ready to perform his part of contract, that plaintiff created false receipts and as such plaintiff is not entitled for specific performance and sought to dismiss the suit.

18.In the light of the rival contentions, the following questions fall for adjudication in the suit - Whether plaintiff proved that he paid Rs.7 Lakhs under Ex.A2 receipt dt.23.12.2011 and another amount of Rs.37 Lakhs under Ex.A4 promissory note dt.15.07.2013 to S. Pochamallu, eldest son of defendant as pleaded in the plaint?

Whether receipt of amounts under Ex.A2 and A4 amounts to waiver of time stipulation for payment of entire sale consideration by 28.02.2012 stipulated under Ex.A1 agreement of sale?

19.Before appreciating the oral evidence on record, the documents exhibited by plaintiff have to be appreciated. Ex.A1 is original agreement of sale dated 28.11.2011.

As per this agreement of sale, defendant is owner and possessor of plot No.11/2 measuring 244.40 Sq Yd in Sy.No.1349 with four rooms with RCC roof, that defendant agreed to sell the property to plaintiff for total sale consideration of Rs.60

Lakhs and on that day, defendant received Rs.3 Lakhs towards advance. Ex.A1 specifically stipulates that balance amount has to be paid by way of installments of

Rs.15 Lakhs within 15 days from the date of Ex.A1, the second installment of Rs.15

Lakhs within 35 days from the date of Ex.A1 and the balance amount of Rs.27 Lakhs

Page 12 of 25 OS 49 of 2016 PDJ Karimnagar within three months i.e., on or before 28.02.2012. A note is appended at the end of the recitals to the effect that by the date of last installment, defendant agrees to repay the loan amount to Deccan Grameena Bank and get the property released from the mortgage and will hand over the document to plaintiff. S. Pochamallu, S.Venugopal,

S.Sravan Kumar, Anumamma, A.Anjali and two others signed on this document apart from Beeraiah and K.Ram Mohan. It is also signed by defendant Seepelli Rajaiah and the plaintiff.

20.Ex.A2 is stamped receipt dated 23.12.2011, as per which, there was an agreement of sale dated 28.11.2011 between plaintiff and defendant, that defendant received Rs.3 Lakhs on 28.11.2011 and on 23.12.2011, he received Rs.7 Lakhs and by that date he received a total amount of Rs.10 Lakhs. It is shown to be signed by S.

Pochamallu and S.Venugopal as witnesses. Defendant did not deny this document as fabricated document and not signed by him.

21.Ex.A3 is Bank counter foil dated 24.12.2011, as per which, Rs.1,00,000/- was deposited into Account No.7073016730.

22.Ex.A4 is filed as promissory note dated 15.07.2013 executed by S. Pochamallu.

According to plaintiff, it was executed by Pochamallu on receipt of Rs.37 Lakhs which the plaintiff paid to him on the instructions of defendant and that towards security, he obtained Ex.A4 promissory note from S. Pochamallu, eldest son of defendant.

23.Ex.A5 is office copy of legal notice dated 12.01.2016 got issued by plaintiff to defendant demanding the defendant to execute registered sale deed by receiving remaining amount of Rs.12 Lakhs as per agreement of sale dated 28.11.2011. Contents of this legal notice are on the lines of plaint averments. Ex.A6 is postal receipt dated 12.01.2016, Ex.A7 is postal acknowledgment card dated 13.01.2016 filed in token of service of legal notice on the defendant.

Page 13 of 25 OS 49 of 2016 PDJ Karimnagar

24.Ex.A8 is reply legal notice dated 06.02.2016 got issued by defendant to the counsel for plaintiff denying the allegations mentioned in Ex.A5 legal notice dated 12.01.2016. The above documents shall be appreciated with the oral evidence on record.

25.Coming to the oral evidence on record, plaintiff examined himself as PW1.

Chief affidavit of PW1 is reiteration of the facts pleaded in the plaint. PW1 was thoroughly cross examined by the learned counsel for defendants. In his cross examination, PW1 admitted that agreement was entered into on 28.11.2011, the sale consideration agreed was Rs.60 Lakhs, on that day he paid Rs.3 Lakhs, within 15 days from 28.11.2011 he had to pay Rs.15 Lakhs, but he did not pay said amount within 15 days. PW1 added that when he approached defendant with amount, defendant and his family members asked him to come later stating that they would consider about the matter. PW1 further stated that he again approached defendant with money within 2 or 3 days before expiry of said 15 days period.

26.PW1 admitted that second installment amount of Rs.27 Lakhs has to be paid within 35 days from the date of agreement, the total sale consideration amount has to be paid by 28.02.2012. PW1 admitted that he paid only Rs.10 Lakhs. When suggested to PW1 that he never approached defendant after 28.02.2012, PW1 denied the same. It was suggested to PW1 that the suit is barred by limitation as he did not pay any amount and did not get issued any notice within 3 years from 28.02.2012,

PW1 pleaded ignorance of said fact. This court observes that involves legal aspect and the aspect of issuance of legal notice and if it saves limitation has to be decided by considering the factual aspects.

27.When suggested that at the time of entering into suit agreement, defendant was having bank loan for the sake of family necessities, PW1 admitted said fact. When

Page 14 of 25 OS 49 of 2016 PDJ Karimnagar suggested that he did not get mentioned in legal notice that he approached defendant through mediator Beeraiah to pay first installment of Rs.15 Lakhs on 11.12.2012, but defendant refused to accept the same as mentioned in para 5 of his chief affidavit,

PW1 denied the same. It is to be seen whether said fact is there in the legal notice or not.

28.When suggested that he did not pay amount as per agreement though the sale was agreed to be made for family necessities, PW1 answered that defendant themselves dodged the matter. When suggested that he was not having money to pay the amount, that he never tried to pay sale consideration as per agreement and that he is deposing false, that defendant himself dodged the matter, PW1 denied all said suggestions. It was also suggested to PW1 that he did not deposit Rs.1 Lakh in the account of defendant on 24.12.2011, PW1 answered that he deposited the amount in the account of defendant’s son Pochamallu on the instructions of defendant. When suggested that defendant had not given said instructions and the defendant got no connection with the amount covered by Ex.A4 promissory note, PW1 denied the same.

PW1 answered that defendant did not issue any receipt for the amount covered by

Ex.A4. PW1 added that he paid amount to Pochamallu on the instructions of defendant.

29.PW1 denied that amount paid under Ex.A4 had no connection with suit agreement. It was suggested to PW1 that he is still due Rs.50 Lakhs and not Rs.12

Lakhs and that he did not approach defendant several times with amount for the purpose of this case, that he has no financial capacity to pay said amount, that he himself committed breach of contract and that therefore, he has no right to ask defendant to execute sale deed and that he created Ex.A3 bank receipt and Ex.A4 promissory note for the purpose of this case, PW1 denied all said suggestions.

Page 15 of 25 OS 49 of 2016 PDJ Karimnagar

30.It is important to note that no suggestion was given to PW1 nor any stand was taken by the defendant during the cross examination of PW1 that plaintiff did not give any amount of Rs.37 Lakhs to defendant’s eldest son Pochamallu. All the suggestions put to PW1 were to the effect that the amount under Ex.A4 promissory note has no connection with the suit agreement and that defendant did not give any instructions to plaintiff to pay said amount to his son Pochamallu.

31.A.Beeraiah mediator is examined as PW2. According to plaintiff A. Beeraiah was the mediator for the sale agreement and said fact was mentioned in the plaint itself. It is important to note that there is no specific written statement of defendant denying mediation of the transaction by one Beeraiah. PW2 filed his chief affidavit affirming that defendant was intending to sell the suit property, himself and one

K.Ram Mohan mediated through defendant and his sons and they approached plaintiff and offered to sell the property and defendant was in need of immediate money to avoid sale of property by Deccan Grameena Bank, where from defendant obtained loan by mortgaging said property and avoided repayments, for that an agreement was got written on 28.11.2011 to the effect that defendant is agreeing to sell the suit property to plaintiff for Rs.60 Lakhs.

32.Nextly, PW2 referred to the terms of payment under Ex.A1 agreement of sale, which terms are not disputed. PW2 further affirmed that plaintiff approached defendant to pay first installment of Rs.15 Lakhs on 11.12.2012, but defendant refused to receive the amount on the pretext that defendant’s sons and daughter are quarreling with each other and asked the plaintiff to wait for some time and pay the amount as and when asked by him, that on 23.12.2011, defendant asked plaintiff Rs.7 Lakhs only but not the due installment amounts, due to above reasons and as per request of defendant, plaintiff paid Rs.7 Lakhs, for which defendant issued a receipt for Rs.10

Page 16 of 25 OS 49 of 2016 PDJ Karimnagar

Lakhs acknowledging of payment of advance sale consideration of Rs.3 Lakhs and

Rs.7 Lakhs on 23.12.2011.

33.PW2 further affirmed about remaining steps taken by plaintiff, deposit of amount of Rs.1 lakh in the bank account on 24.12.2011 and payment of Rs.37 Lakhs

Pochamallu son of defendant. PW2 further affirmed about the illness of defendant’s second son and dodging the matter by defendant, defendant agreeing before himself and another mediator K.Ram Mohan to receive the balance amount by Dussera festival and payment of Rs.37 Lakhs by elder son of defendant to plaintiff as per instructions of defendant. PW2 further affirmed that plaintiff was ready to pay Rs.12 Lakhs to defendant, but defendant is avoiding to receive the same.

34.PW2 was thoroughly cross examined by the learned counsel for defendants. In his cross examination, firstly PW2 was questioned about stipulation of payments of time schedule given for payment of balance amount of Rs.57 Lakhs, PW2 admitted all said questions and he further admitted that plaintiff paid Rs.7 Lakhs only towards first installment and he added that including advance amount, it is Rs.10 Lakhs.

35.The statements of PW2 made in his cross-examination can be better appreciated by extracting them hereunder -

It is true Rs.60,00,000/- i.e., total sale consideration had to be paid by 28.02.2012. It is true PW1 did not pay Rs.60,00,000/- by 28.02.2012. It is true the plaintiff paid Rs.7,00,000/- only instead of Rs.15,00,000/- towards first installment. Witness adds: Including advance amount it is

Rs.10,00,000/-. It is true the plaintiff sold away his house to discharge the bank loan.

Page 17 of 25 OS 49 of 2016 PDJ Karimnagar

36.The last sentence i.e., it is true that plaintiff sold away his house to discharge the bank loan, is not clear in which context it was put, Whether plaintiff sold his house to discharge the existing bank mortgage loan of defendant or if it is in respect of any other loan.

37.PW2 next stated that defendant did not receive the amount stating that his son died. When questioned about the persons present at the time of execution of Ex.A1,

PW2 answered that wife and children of defendant were present at the time of execution of Ex.A1. When suggested that he was not present at the time of Ex.A1 and he signed it later, PW2 denied the same. Evidently, this fact was not pleaded in the written statement of defendant or in his reply notice.

38.Plaintiff filed chief affidavit of one K.Ram Mohan said to be the 2nd mediator who mediated along with PW2, as chief affidavit of PW3. As said witness was not produced, his evidence was eschewed as sought by plaintiff counsel.

39.Coming to the oral evidence adduced by the defendants, 5th defendant Sravan

Kumar another son of defendant examined himself as DW1. His chief affidavit is on the lines of written statement and additional written statements filed by the defendants.

DW1 was thoroughly cross examined by the learned counsel for plaintiff. In his cross examination, DW1 deposed that he studied upto 10th class, that they are three brothers and one sister, Seepalli Rajaiah is his father (defendant No.1 since died), defendants

No.2 to 5 are his mother, brothers and sister. DW1 admitted that suit property belongs to his father.

40.DW1 further admitted that his father entered into agreement under Ex.A1 to sell the suit property to plaintiff, that himself and defendants No.1 to 5 all signed on

Ex.A1, plaintiff paid advance amount of Rs.3 Lakhs and they were present at that

Page 18 of 25 OS 49 of 2016 PDJ Karimnagar time. When suggested that plaintiff paid first installment of Rs.7 Lakhs to his father on 23.12.2011, DW1 pleaded ignorance of said fact.

41.Nextly, DW1 was confronted with the signatures purported to be of his father on Ex.A2 (receipt de.23.12.2011), DW1 deposed that he can identify his father’s signature, but he cannot identify the signature shown to him on Ex.A2 and if it belongs to his father. When asked if he can identify the signatures of his brother

Pochamallu and witness Beeraiah, PW2 answered that he cannot identify the signatures of Pochamallu and Beeraiah. When suggested that his father and his two brothers signed on Ex.A2 and the signatures shown to him belong to his father and two witnesses, DW1 denied the same. (DW1 was shown the purported signatures of his father and his two brothers on Ex.A2 receipt)

42.DW1 further deposed that he do not know if loan was borrowed from Deccan

Grameena Bank by securing the suit house and he do not know if plaintiff deposited a sum of Rs.1 Lakh on 24.12.2011 towards said loan on the instructions of his father.

When suggested that on 11.12.2011, plaintiff approached his father offering to pay second installment of Rs.15 Lakhs and that his father declined to receive the amount saying that there are family disputes regarding distribution of amount, DW1 denied said suggestion. When suggested that later his father sought some time stating that his brother was attacked with paralysis and that his brother was being given treatment at

Hyderabad, DW1 pleaded ignorance of said fact.

43.When suggested that on 20.02.2012, plaintiff placed the matter before mediators Beeraiah and one K.Ram Mohan stating that his father was avoiding to perform the contract and it was agreed by his father in the mediation at the instance of mediators to receive balance amount and to execute registered sale deed and also plaintiff again came with mediator to the house of his father on 21.08.2013 offering to

Page 19 of 25 OS 49 of 2016 PDJ Karimnagar pay balance amount and that his father promised to execute registered sale deed after

Dasara festival, DW1 pleaded ignorance of all said acts.

44.DW1 admitted that later his brother Venugopal passed away. DW1 further deposed that he do not know if his father sent his brother Pochamallu to plaintiff on 15.07.2013 calling upon plaintiff to pay Rs.37 Lakhs so as to clear the hospital bills, and if his brother Pochamallu received said amount and issued Ex.A4 promissory note in favor of plaintiff and if his brother and two witnesses signed on Ex.A4 promissory note and if it was same was scribed by M.Venkateshwarlu.

45.When suggested to DW1 that he is aware of taking of Rs.37 Lakhs by his brother and that he is deposing false, that after his brother Venugopal died, plaintiff came to his father in that connection and at that time, his father admitted receipt of

Rs.37 Lakhs and also suggested that after Dasara festival, plaintiff approached his father with balance amount of Rs.12 Lakhs and his father again sought time, DW1 denied all said suggestions. DW1 deposed that he do not know if plaintiff again placed the matter before mediators and his father again stated that they are having family disputes regarding distribution of amount and they wanted time.

46.DW1 further deposed that he do not know plaintiff got issued Ex.A5 legal notice dated 12.01.2016 to his father calling upon his father to come forward for execution of registered sale deed by receiving remaining sale consideration of Rs.12

Lakhs and referred to the payments. When suggested that his father received said notice and that he is aware of that fact, DW1 denied said suggestion. DW1 deposed that he do not know if his father got issued reply notice on 06.02.2016. When suggested that he is aware of all payments made by plaintiff to his father to a tune of

Rs.48 Lakhs towards Ex.A1 and that they all family members distributed the amounts among them, DW1 denied the same.

Page 20 of 25 OS 49 of 2016 PDJ Karimnagar

47.DW1 was next suggested that defendants No.2 to 5 being legal heirs of his father are liable to execute registered sale deed by receiving balance amount of Rs.12

Lakhs, that as the value of the suit property increased, they are not coming forward to perform their part of contract by taking false defence and that plaintiff is entitled for specific performance of Ex.A1 agreement of sale, DW1 denied all said suggestions.

48.The oral and documentary evidence discussed shows that though in their written statement, defendants denied paying Rs.7 Lakhs on 23.12.2011, a suggestion was given to PW1, to which he answered as “It is true I paid total amount of Rs.10 Lakhs only”. There is no specific suggestion to PW1 suggesting that he did not make any payment of Rs.7 Lakhs, in the initial cross examination. However, in the further cross examination of PW1, it was suggested to PW1 that the signatures of defendant No.1 on Ex.A1 and the purported signatures of defendant No.1 on Ex.A2 are not one and the same and that PW1 fabricated Ex.A2 for the purpose of this case, which suggestion was denied by PW1. It was next suggested to PW1 that he paid only Rs.3 Lakhs to defendant No.1 and that he created Ex.A2 to A4 for the purpose of this case, this suggestion was also denied by PW1.

49.Further, in the cross examination of PW2 also it was elicited by the learned counsel for defendants as “it is true plaintiff paid Rs.7 Lakhs in respect of payment towards first installment”. DW1 whose evidence is thoroughly discussed above, interestingly, states that he do not know if plaintiff paid first installment of Rs.7 Lakhs to his father on 23.12.2011. DW2 stated that he can identify his father’s signature, but when shown the purported signature of his father on Ex.A2, he stated that he cannot identify the signature and if it belongs to his father. Thus, DW2 failed to identify the signature of his father. Interestingly, DW1 did not deny said signature as not that of his father’s.

Page 21 of 25 OS 49 of 2016 PDJ Karimnagar

50.Regarding signatures of his brothers, DW1 stated that he cannot identify the signatures of his brothers Pochamallu and Venugopal. Thus, there is no specific denial during the course of cross examination of PW1 and DW1 about payment of Rs.7

Lakhs under Ex.A2 by plaintiff to the defendant. Learned counsel for defendant vehemently submitted that this court can compare the admitted signatures of father and brothers of DW1 on Ex.A1 with their disputed signatures on Ex.A2 receipt. Ex.A2 filed as receipt contains purported signature of defendant No.1 on receipt part on the stamp and also shows two witnesses whose names read as Pochamallu and Venugopal who are the sons of defendant and brothers of DW1. I have verified these signatures.

The purported signatures of defendant and his two sons on Ex.A1 and their purported signatures on Ex.A2 appear to be made by one and the same person. Thus, the disputed signatures of defendant No.1 and his two sons Pochamallu and Venugopal on

Ex.A2 receipt are tallying with their admitted signatures on Ex.A1 agreement of sale.

Hence, I hold that plaintiff proved that he paid Rs.3 Lakhs and Rs.7 Lakhs out of total sale consideration of Rs.60 Lakhs.

51.Nextly, regarding the payment of balance amount, according to plaintiff he paid

Rs.1 Lakh by depositing to the credit of bank account of S. Pochamallu on the immediate next date of Ex.A2. Towards said payment, plaintiff got marked Ex.A3 counter foil of bank deposit slip with bank seal. Defendant denied giving any instructions to plaintiff to pay the amount in the bank account of S. Pochamallu. This court observes that firstly, there is no written instructions from defendant No.1 to deposit amount in the bank account of his son S. Pochamallu. Nextly, no receipt was obtained towards deposit of said amount. Thirdly, a mortgage is existing on suit property in Deccan Grameena Bank. When such is the case, if at all defendant gives instructions to plaintiff, he would have given instructions to deposit towards clearing the mortgage and not to deposit in the bank account of his son Pochamallu. After all, the very purpose of sale was to avoid bringing the mortgaged property for sale as the

Page 22 of 25 OS 49 of 2016 PDJ Karimnagar loan was overdue. Thus, even if is assumed that plaintiff had deposited Rs.1 Lakh into the account of S. Pochamallu, the same cannot be accepted as payment towards sale consideration amount under Ex.A1.

52.Nextly, coming to payment of Rs.37 Lakhs, according to plaintiff, he paid

Rs.37 Lakhs to S. Pochamallu son of defendant on the instructions of defendant and S.

Pochamallu gave Ex.A4 promissory note towards security. Defendant categorically denied giving any such instructions or making any such payment. This court observes that the very purpose of entering into sale transaction by defendant to plaintiff is to clear the mortgage loan raised by mortgaging the suit house. When such is the case, huge amount of Rs. 37 Lakhs will be paid towards clearing the mortgage. According to plaintiff, defendant instructed him to pay said amount to his son Pochamallu, as his other son Venugopal was seriously ill and admitted in hospital and as to clear huge hospital bills. There is no evidence to show that for treatment of his other son

Venugopal, defendant had incurred huge amount of Rs.37 Lakhs in the first place and that at that time, defendant was in dire need of huge money.

53.Further, plaintiff failed to obtain any receipt towards payment of Rs.37 Lakhs to

Pochamallu. According to the plaintiff, Pochamallu on receipt of Rs.37 Lakhs executed Ex.A4 promissory note on 15.07.2013 towards security. It is seen that Ex.A4 promissory note is shown to be executed in the presence of two witnesses G.Adi

Reddy & A.Praveen and scribed by one Maddi Venkateshwarlu. None of these witnesses were examined by the plaintiff in support of his contention. There is absolutely no evidence to prove that a sum of Rs.37 Lakhs was paid by plaintiff to S.

Pochamallu son of defendant. No notice was issued to Pochamallu and plaintiff did not seek to examine said Pochamallu as witness and he do not seek to summon

Pochamallu as witness to confront Ex.A4 promissory note and Ex.A1 counter foil of the bank deposit seal. Of course, Pochamallu brought on record as 4th defendant could

Page 23 of 25 OS 49 of 2016 PDJ Karimnagar have examined himself to deny Ex.A2 to A4. However, initial burden is only on the plaintiff to prove that he made the payment and that it was towards Ex.A1, which he failed to prove. I hold that evidence of plaintiff that he paid Rs.37 Lakhs is absolutely not convincing and it lacks proof and is not proved. The above discussion shows that plaintiff proved only payment of Rs.10 Lakhs towards Ex.A1 agreement of sale.

54.Coming to the stipulation of payment of amounts within stipulated time under

Ex.A1 and if the suit is barred by limitation, admittedly as per Ex.A1 an amount of

Rs.3 Lakhs out of total sale consideration amount of Rs.60 Lakhs was paid on 23.11.2011 and the balance amount has to be paid as per the following terms:

Rs.15 Lakhs as first installment within 15 days Another Rs.15 Lakhs within 35 days towards second installment Remaining amount of Rs.27 Lakhs to be paid within three months from the date of execution of document i.e., on or before 28.02.2012.

55.It is held above that plaintiff proved payment of Rs.7 Lakhs to defendant on 23.12.2011 which comes to total part payment of Rs.10,00,000/- . The remaining payments of Rs.1,00,000/- in Bank Account of Pochamallu and payment of Rs.37

Lakhs to Pochamallu are absolutely not proved. This Court observes that plaintiff should not only show his willingness to pay the balance payment, he should also plead and prove that he was ready with the balance amount by 28.02.2012. It is an admitted fact that the very sale of suit property by defendant was to clear the mortgage on the suit property with Deccan Grameena Bank. Plaintiff neither cleared the loan nor paid the amount to defendant within time. Though plaintiff stated that he was ready and willing to pay the amount and he approached defendant through PW2 and K.Ram

Mohan, mere approach by plaintiff offering the defendant to pay the payment is not sufficient.

Page 24 of 25 OS 49 of 2016 PDJ Karimnagar

56.Plaintiff ought to have filed the present suit within three years from the day when the payment was refused or when performance of the contract was declined.

Plaintiff ought to have taken steps for filing the suit within three years from 28.02.2012 which is the last date for making payment. Plaintiff cannot take any shelter even if the defendant had refused to receive the amount owing to death of his son Venugopal or any family disputes. Time starts running for the plaintiff to file the suit for specific performance from 01.03.2012 and he ought to have filed the suit on or

before 27.02.2015. As seen from the plaint, it was filed on 13.04.2016 and thus, the

suit having been filed beyond three years from 28.02.2012, is barred by limitation.

Thus, viewed in any angle plaintiff failed to prove that he was always ready and willing to perform his part of contract.

57.In view of my above discussion, I hold that plaintiff is not entitled for specific performance of contract and he is entitled for return of the part sale consideration amount of Rs.10 Lakhs paid by him to defendant. These issues are decided accordingly.

Issue No.3:

58.In view of the findings given in Issues No.1 & 2, I hold that the suit of the plaintiff is liable to be Partly Decreed.

59.IN THE RESULT, the suit is Decreed Partly granting alternative relief of refund of part sale consideration amount of Rs.10,00,000/- to plaintiff, which the defendants No.2 to 5 are directed to return within two months from the date of this

Judgment. The suit for main relief of specific performance of agreement of sale dated 28.11.2011 is Dismissed. Each party to bear their own costs.

Partly Typed by Be and Partly Dictated to the Stenographer, Transcribed by her, Corrected and Pronounced by Me in the Open Court, on this the 7th day of April, 2025.

Page 25 of 25 OS 49 of 2016 PDJ Karimnagar

PRL. DISTRICT JUDGE,

KARIMNAGAR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PLAINTIFFS FOR THE DEFENDANTS

PW1Peddapeta Surendra CharyDW1Seepelly Sravan

PW2A.Beeraiah

PW3K.Ram Mohan (eschewed)

EXHIBITS MARKED

FOR THE PLAINTIFFS

Ex.A128.11.2011Original Agreement of Sale

Ex.A223.12.2011Original Receipt

Ex.A324.12.2011Counter Foil

Ex.A415.07.2013Original promissory note

Ex.A512.01.2016Office copy of legal notice

Ex.A612.01.2016Postal receipt

Ex.A713.01.2016Postal acknowledgment

Ex.A806.02.2013Reply legal notice

FOR THE DEFENDANTS

Nil

PRL. DISTRICT JUDGE,

KARIMNAGAR.

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE KARIMNAGAR.

PRESENT : - SMT. B. PRATHIMA, Prl. District Judge, Karimnagar.

Wednesday, the 9th day of April, 2025.

APPEAL SUIT NO.90 OF 2019

Between:

Thallapally Sampath Kumar S/o Sathaiah, age: 33 years, occ: Private employee, R/o. Ramnagar, Karimnagar. …. Appellant/plaintiff AND

1. Naini Lachamma W/o late Shambaiah, age: 69 years, occ: Household,

2. Chintalatadem Rajeshwari @ Naini Rajeshwari, age: 52 years, occ: Household,

3. Chintalatadem Shankar S/o Swamy, age: 55 years, occ: Agriculture, All are R/o. Bhoopalapatnam village of Choppadandi mandal of Karimnagar district.

4. Malyala Narayana S/o Nagaiah, age: 50 years, occ: Agriculture, R/o. H.No.1-63, Kolimikunta village, Choppadandi Mandal of Karimnagar District.

5. Erram Sharada W/o Ravinder Raju, age: 51 years, occ: Household, R/o. H.No.2-58, Bhoopalpatnam village, Choppadandi Mandal of Karimnagar District.

…..Respondents/Defendants

Aggrieved by the Judgment and Decree dated 12.06.2019 passed by learned Prl. Senior Civil Judge, Karimnagar in

O.S.No.236 of 2014

Thallapally Sampath Kumar S/o Sathaiah, age: 33 years, occ: Private employee, R/o. Ramnagar, Karimnagar. …. plaintiff AND

1. Naini Lachamma W/o late Shambaiah, age: 65 years, occ: Household,

2. Chintalatadem Rajeshwari @ Naini Rajeshwari, age: 48 years, occ: Household,

3. Chintalatadem Shankar S/o Swamy, age: 50 years, occ: Agriculture, All are R/o. Bhoopalapatnam village of Choppadandi mandal of Karimnagar district.

Page 2 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar

4. Malyala Narayana S/o Nagaiah, age: 45 years, occ: Agriculture, R/o. H.No.1- 63, Kolimikunta village, Choppadandi Mandal of Karimnagar District.

5. Erram Sharada W/o Ravinder Raju, age: 46 years, occ: Household, R/o. H.No.2-58, Bhoopalpatnam village, Choppadandi Mandal of Karimnagar District. …. Defendants

APPEAL FILED UNDER ORDER 41 RULE 1 OF CPC.

This Appeal Suit came before me for final hearing in the presence of Sri T.Venugopal, Advocate for the Appellant and Sri H.Thirupathi Reddy, Advocate for the Respondents No.1 to 3 and Sri D.Rajeshwar Rao, Advocate for the Respondents No.4 & 5 and Sri M.Vikram Reddy, Advocate for respondents No.6, 7 & 9 and upon hearing the matter and having stood over for consideration till this day, the Court delivered the following:

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

1.The unsuccessful plaintiff in OS No.236 of 2014 filed this Appeal seeking to set aside the Judgment and Decree dated 12.06.2019 passed in said suit by the learned Prl.

Senior Civil Judge, Karimnagar.

2.For the sake of convenience, parties hereinafter are referred to as they were arrayed before the Trial Court in OS 236 of 2014.

3.OS 236 of 2014 was filed by plaintiff against five defendants seeking partition of suit schedule property and for allotment of three equal shares to the plaintiff and defendants No.1 & 2 and separate possession thereof. The suit was dismissed with costs.

4.Brief pleadings of both sides before the Trial Court are as follows:

Plaint Averments:

4.1Defendant No.1 is maternal grandmother of plaintiff, defendant No.2 is his mother, defendant No.3 is husband of defendant No.2. Plaintiff and defendants No.1

Page 3 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar & 2 constituted joint Hindu Family under Mitakshara school of law. Defendant No.1 is Kartha of Joint family and defendant No.1 used to maintain the joint family funds.

There was divorce between father of plaintiff and defendant No.2 and plaintiff is with his father. The ancestral properties were acquired by defendant No.1 in her name.

Defendant No.1 is trying to alienate the same to defendants No.2 & 3 and also to third parties. Plaintiff has absolute right over the ancestral properties, which are specifically shown in schedule A and B properties. Defendants No.1 to 3 colluded with each other and are trying to usurp the legitimate share of plaintiff in joint family properties.

Defendant No.1 is trying to alienate the suit schedule property in collusion with defendants No.2 & 3. Plaintiff is joint owner with defendant No.1 and 2. Hence, the suit for partition and separation.

Written Statement averments of Defendant No.1 as adopted by defendants No.2

& 3:

5.1The allegation that defendant No.1 is maternal grandmother and defendant No.2 is mother of plaintiff is denied. Now defendants No.1 and 2 have no ties with plaintiff.

Plaintiff is not joint family member of defendants No.1 & 2. Suit schedule properties are not ancestral joint family properties of plaintiff. It is true that divorce took place between father of plaintiff and defendant No.2 on 01.09.1989, at that time plaintiff was minor boy. Plaintiff is with his father and in the divorce deed, the father of plaintiff clearly mentioned that himself and his minor son are not having any ties with defendants No.1 & 2. Plaintiff is not joint family member of defendants No.1 & 2.

5.2Suit schedule A & B properties are absolute properties of defendant No.1 and she is enjoying said properties as absolute owner and possessor. Defendant No.2 is daughter of defendant No.1. Defendant No.2 was married with one Thallapalli

Sathaiah in the year 1981. He harassed defendants No.1 & 2 for extortion of money and meanwhile, plaintiff was born. Due to harassment, there was divorce between father of plaintiff and defendant No.2 on 01.09.1989. In the divorce deed, father of

Page 4 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar plaintiff kept custody of plaintiff with him. Since then, plaintiff has no connection or ties with defendants No.1 and 2. Later, father of plaintiff married another spouse and defendant No.2 married defendant No.3. Defendants No.2 & 3 are maintaining defendant No.1.

5.3Father of plaintiff created a fictitious registered sale deed Doct. No.1091/1994 dt.01.10.1994 in respect of suit schedule land alleged to have been executed by defendant No.1 in his favour by impersonation showing another lady as Naini

Lachamma before Sub-Registrar, Gangadhara. On basis of said registered sale deed, father of plaintiff tried to mutate his name in revenue records, but the name of defendant No.1 is continuing as possessor and she is in possession of suit property till she executed gift deed in favour of defendants No.2 & 3.

5.4On the basis of said fictitious sale deed, father of plaintiff filed a suit for injunction vide OS 194/1997 on the file of Junior Civil Judge, Karimnagar. After trial, father of plaintiff got said suit is dismissed as not pressed, as he was not in possession of property and he filed suit for recovery of possession vide OS 100/2002 on the file of this Court. Defendant No.1 herein filed her written statement denying execution of registered sale deed and sought cancellation of said registered sale deed by filing counter claim. In said suit, document was sent for expert opinion and the expert opined that the thumb impression on the registered sale deed does not belong to defendant No.1 Naini Lachamma herein. After full fledged trial, OS 100/2002 was dismissed on 28.06.2012 and the counter claim was allowed by cancelling said registered sale deed.

5.5Father of plaintiff filed Appeal vide AS 41/2012 and the same was dismissed on 19.07.2013. In OS 100/2002 on the file of this Court, plaintiff herein filed petition to implead him as sharer in the suit schedule properties vide IA 856/2009. Said petition was dismissed on 05.08.2011 and same was not challenged before any higher court of law and it became final. After exhausting all remedies by father of plaintiff, plaintiff

Page 5 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar in collusion with his father, filed present suit to extract money, even though the suit properties are not ancestral properties of plaintiff. Defendant No.1 executed registered gift deed Doct. No.596/2003 and 597/2002 dt.30.05.2002 in favour of defendants No.2 & 3 in respect of suit schedule properties. Since the date of execution of said gift deeds, defendants No.2 & 3 are in possession of suit property. The suit filed for partition without cancellation of gift deeds, which she now that he filed implead petition in OS 100/2002 is not maintainable. Hence, the suit may be dismissed with costs.

6.Basing on the above pleadings, learned trial judge framed the following issues for trial:

1. Whether the suit schedule properties are ancestral joint family properties?

2. Whether defendant No.1 is absolute owner and possessor of suit schedule property?

3. Whether the plaintiff entitled for partition of 1/3 rd share?

4. To what relief?

Evidence adduced before the Trial Court:

7.During the course of trial, plaintiff examined himself as PW1 and also examined PW2 and got marked Ex.A1 to A14. On behalf of defendants, defendant

No.2 examined herself as DW1 and also examined DW2 and got marked Ex.B1 to B4.

Observations of Trial Judge:

8.1Learned trial Judge after thorough appreciation of the fact situation as borne out by the pleadings of both sides and the oral and documentary evidence adduced by both sides held that it is seen from the pahanies that name of defendant No.1 Naini

Lachamma W/o Shambaiah was entered in possessor column from 1996-97, there is no

Page 6 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar mention how she came into possession, whether she purchased the land or came into possession by Virasath and at the same time, it cannot be said that defendant No.1 acquired the lands from her ancestors and as per revenue record, the land stands in the name of defendant No.1 and as per revenue records, Ex.B1 and B2 and it is for plaintiff to produce proper material to show that defendant No.1 got the properties from her ancestors and it is inherited from three generations and finally in the hands of defendant No.1.

8.2Learned trial Judge further observed that PW1 in his cross examination deposed that suit lands belongs to ancestors of defendant No.1, but not the ancestors of his father and in view of this fact and the revenue records and other evidence on record show that as defendant No.1 got property from her father, it becomes her absolute property by virtue of Sec.14 and 15 of Hindu Succession Act, 1956 and this being the case, plaintiff cannot claim any share in it. With such and other observations, learned trial judge dismissed the suit of the plaintiff.

9.Aggrieved by the Judgment and Decree of the trial Court, the unsuccessful plaintiff in OS 236/2014 preferred this Appeal with the following grounds:

Grounds of Appeal:

1. The Decree under Appeal is bad in law and is against the facts of the case.

2. Trial Court without considering the facts, documents and legal position dismissed the suit.

3. Trial court utterly failed to consider the evidence adduced on behalf of plaintiff and failed to appreciate that the property stands in the name of Naini

Shambaiah, who is maternal grandfather of plaintiff and it is ancestral property, which fact was admitted by defendants also.

Page 7 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar

4. Trial Court failed to appreciate that name of Thallapally Sathaiah who is none other than father of plaintiff is mentioned in pattadar column.

5. Trial court in its Judgment discussed all irrelevant points without any collaboration (sic corroboration) and came to wrong conclusion.

6. Trial court failed to appreciate the oral evidence of the witnesses properly and failed to see that plaintiff discharged his burden.

10.Heard arguments submitted by both side counsel. Learned counsel for plaintiff argued on the lines of Grounds of Appeal. Learned counsel for defendants sought to confirm the finding of the Trial Judge and to dismiss the Appeal.

Points for Determination:

11.The points that arise for determination in this appeal are -

1. Whether the Trial court failed to appreciate the oral and documentary evidence on record in the right perspective?

2. Whether Judgment and Decree dt.12.06.2019 in OS No.236 of 2014 passed by the Learned Prl. Senior Civil Judge, Karimnagar is sustainable and if the suit of the plaintiff for partition is to be decreed as prayed for?

3. To what relief?

Additional Evidence:

12.No additional evidence is adduced by either of the parties in this Appeal.

Points No.1 and 2:

13.Admitted facts of the case are that Thallapalli Sathaiah is father of plaintiff and defendant No.2 was his mother, parents of plaintiff were divorced on 01.09.1989 and

Page 8 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar from said date, plaintiff is staying with his father, defendant No.2 contacted second marriage with defendant No.3, defendant No.1 is mother of defendant No.2.

Defendants No.4 & 5 were added vide orders dated 11.08.2016 in IA 560/2015 and IA 622/2015 respectively.

14.According to plaintiff, suit schedule properties in Schedule A & B are ancestral properties, that he is member of joint family consisting of himself and his biological mother defendant No.2 and his maternal grandmother defendant No.1, that he is in joint possession of suit schedule A & B properties, that defendants No.1 to 3 are trying to alienate the properties to deprive his legitimate share over the suit schedule properties and as such he filed the suit for partition.

15.Defendants strongly opposed the suit of the plaintiff. They pleaded that from the date of divorce of father of plaintiff and defendant No.2 on 01.09.1989, there are no ties between plaintiff and defendants No.1 & 2, that suit schedule A & B properties are the absolute properties of defendant No.1 inherited by her from her father, that by virtue of Sec.14 and 15 Hindu Succession Act, 1956. Defendant No.1 got absolute rights over the suit lands and it is neither joint family property nor ancestral property.

16.Defendants also referred earlier suit OS 100/2002, impersonation of defendant

No.1 in execution of registered sale deed, dismissal of said suit, filing of Appeal by father of plaintiffs appeal vide AS 41/2012 and dismissal of the same on 19.07.2013.

They also pleaded that in OS 100/2002 on the file of this Court, plaintiff herein filed petition to implead him as sharer in the suit schedule properties vide IA 856/2009, that said petition was dismissed on 05.08.2011 and same was not challenged before any higher court of law and it became final, that after exhausting all remedies by father of plaintiff, plaintiff in collusion with his father, filed the present suit to extract money.

17.Defendants further claimed that defendant No.1 executed registered gift deeds gifting suit schedule A & B properties in favour of defendants No.2 & 3 vide Doct.

Page 9 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar

No.596/2002 and 597/2002 dt.30.05.2002, that the gift was acted upon by defendants

No.2 & 3 and they are in possession of suit properties, that the present suit filed for partition without seeking relief of canellation of registered gift deeds Doct.

No.596/2002 and 597/2002 dt.30.05.2002 is not maintainable.

18.In the light of rival contentions about nature of suit schedule property, firstly it has to be decided whether the suit properties are joint family properties of defendant

No.1, defendant No.2 and plaintiff or if they are the absolute properties of defendant

No.1. For better appreciation of suit properties, they are extracted here under:

Schedule A property:

Part and parcel of agricultural lands in Sy.No.179/B and 180-181/A to an extent of Ac 02-05 Gt and Ac 01-14 Gt respectively total Ac 3- 19 Gt comprises in single compact block situated at Bhoopalpatnam village of Choppadandi Mandal of Karimnagar District bounded by -

East: Land of Chepuri Chandraiah and others West: Land of Munigala Chandraiah and others North: Land of Kuna Pochalu South:Land of Chepuri Rajaiah

Schedule B property:

Part and parcel of agricultural lands in Sy.No.275/A measuring Ac 1-15 Gt situated at Bhoopalpatnam village, Choppadandi Mandal of Karimnagar District bounded by -

East: Land of Munigala Rajaiah West: Road North: Land of Chepuri Narayana and others South: Land of Thallapalli Chandraiah

19.It is not in dispute that the parties to the suit are Hindus and they are governed by Hindu Mitakshara School of Law and Hindu Succession Act, 1956. In support of his case, plaintiff examined himself as PW1 and also examined PW2 and got marked

Page 10 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar

Ex.A1 to A14. Defendant No.2 examined herself as DW1 and one Mallesham as DW2 and got marked Ex.B1 to B4.

20.Coming to the oral evidence on record. Chief affidavit of PW1 is reiteration of the facts pleaded in his plaint. He further affirmed that his maternal grandmother is

Kartha of the joint family and that she used to manage the joint family funds. PW1 further affirmed that he is roaming around defendant No.1 for his legitimate share, but defendant No.1 is avoiding for partition, that defendants No.2 & 3 are trying to alienate the suit schedule properties to third parties, that defendant No.1 taking advantage of her name in revenue records, is trying to alienate suit properties to third partied in collusion with defendants No.2 & 3.

21.PW1 was thoroughly cross examined by the learned counsel for defendants. In his cross examination, when questioned as to how he came to conclusion that suit schedule properties are ancestral properties of his maternal grandmother, PW1 answered that he filed revenue record to show that the suit land belongs to ancestors of his maternal grandmother. PW1 stated that he filed the suit with a plea that suit lands belong to ancestors of defendant No.1, but not ancestors of his father. He admitted that his grandmother defendant No.1 is still alive. PW1 further stated that defendant

No.1 promised to give share to him in suit schedule properties, that when he was of 3 years age his parents obtained divorce and since then he has been residing with his father.

22.PW1 was extensively questioned about the earlier suits. When questioned if he know that in the year 2002 his father filed a suit against defendant No.1 for declaration of title and recovery of possession on the plea that defendant No.1 sold land to him under registered sale deed Doct. No.1094/1994, that if a finding was given that his father got registered sale deed by impersonating defendant No.1 and forging the signatures of defendant No.1, if the court cancelled the registered sale deed on the counter claim of defendant No.1, if he filed implead petition vide IA 856/2009

Page 11 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar claiming that he is one of the shareholders of suit schedule properties, which are subject properties in the present suit, if he is aware that IA 856/2009 filed by him was dismissed on contest on 05.08.2011, if a finding was given by the court in said IA that he is not share holder of properties of defendant No.1, PW1 pleaded ignorance of all said facts. It is very strange that when PW1 is reciding with his father and there is such long drawn dispute over the suit lands initiated by none other than his father,

PW1 pleads ignorance of earlier litigation.

23.Nextly, PW1 was questioned about contents in the written statement of defendant No.1, where she averred that she already executed gift deeds in respect of suit schedule properties in favour of defendants No.2 & 3. The pleaded case of defendants No.1 to 3 was suggested to PW1 and he denied the same.

24.PW2 is said to be agriculturist. He filed chief affidavit affirming that he is elder person between plaintiff and defendants, that defendants agreed to give share in suit schedule properties, but failed to give the same.

25.PW2 was thoroughly cross examined by the learned counsel for defendants. In his cross examination, PW2 deposed that husband of defendant No.1 acquired suit property and defendant No.1 inherited it. When questioned about earlier suit, where father of plaintiff filed claiming that his mother-in-law sold suit lands to him and that said suit was dismissed, PW2 pleaded ignorance of said fact. This evidence of PW2 is not at all useful to decide the case, except according to PW2, husband of defendant

No.1 acquired suit properties and defendant No.1 inherited it. Said plea is not taken by the plaintiff himself in the first place.

26.Defendant No.2 examined herself as DW1. Her chief affidavit is on the lines of their written statement. DW1 was thoroughly cross examined by the learned counsel for plaintiff. In his cross examination, DW1 was also suggested that during panchayath held, they agreed to give the suit lands to plaintiff, DW1 denied said

Page 12 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar suggestion. Evidently, there is no reference to such panchayath in the plaint. At this stage, plaintiff tried to establish that the suit lands in fact belong to Naini Shambaiah

S/o Rajaiah, husband of defendant No.1, DW1 in her cross examination stated that her father’s name is Naini Shambaiah S/o. Ashaiah.

27.When suggested that her father mortgaged the suit land, DW1 denied the same.

Certified copy of registered mortgage deed was confronted to witness and the witness stated that she cannot read the contents of document as she is illiterate. Thus, certified copy of said confronted registered mortgage deed could not be marked. Evidently, it was not got marked by plaintiff also. Nextly, it was suggested to DW1 that suit property belongs to her father and she denied the same. She added that the property belongs to her maternal grandmother, which property her maternal grandmother gave to her mother and her mother gave it to her.

28.Regarding other children, DW1 answered that she is not having other issues, but she took one boy in adoption. When suggested that she did not take any boy in adoption, DW1 denied the same. She was further suggested that her mother agreed to give land to plaintiff and her mother's present intention was also to give land to plaintiff, DW1 denied the same. It was next suggested to DW1 that suit property was mortgaged and it was attached and brought for auction, at that time father of plaintiff paid amount and freed the property, DW1 denied all said suggestions. Evidently, this plea of mortgage and father of plaintiff redeeming the mortgage by paying money is not pleaded in the plaint.

29.DW2 is examined as person knowing both parties. He filed his chief affidavit affirming that plaintiff is not joint family member of defendants and the suit schedule properties are not ancestral joint family properties, that defendant No.1 acquired said properties from her parents, they are the properties of defendant No.1 and defendant

No.1 transferred the suit schedule properties in favour of defendants No.2 & 3 by way

Page 13 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar of registered gift deeds in the month of May, 2002 and from then, defendants No.2 & 3 are in possession.

30.DW2 was thoroughly cross examined by the learned counsel for plaintiff. In his cross examination, DW2 stated that DW1 is daughter of his maternal uncle. He stated that father of plaintiff and defendant No.2 divorced about 25 years ago and since then, he do not see PW1 and he do not know the particulars of panchayath, he went to Dubai from 2005 to 2012, he heard one case was filed in respect of suit lands by father of plaintiff, that Naini Shambaiah is his maternal uncle. DW2 admitted that Shambaiah mortgaged the suit land and took loan. He denied that in the panchayath, suit property was agreed to be given to plaintiff.

31.There is only one statement on the nature of property and they are from PW2 and DW2. PW2 deposed that suit property was inherited by defendant No.1 from her husband, whereas, DW2 admitted in his cross examination that Naini Shambaiah (Father of defendant No.2, husband of defendant No.1) mortgaged the suit land and took loan amount. This Court observes that mere mortgage of immovable property would not create title in favour of mortgagor nor it would lead to presumption that it is indication of title of the mortgagor. It is to be seen how far the documents exhibited by both sides proved their respective contentions.

32.Ex.A1 is filed as certified copy of pahani for the year 1969-70. In this pahani, name of Chevuri Pedda Mallaiah is recorded as pattadar in respect of Sy.No.179/B and in possessor column, it is recorded as Kuddu (Own) and a name is also recorded, which is not visible. In respect of Sy.No.180-181, name of Chevuri Peddamallaiah is recorded as 'Hissadar' (sharer) and name in possessor column is not visible. In respect of Sy.No.275, name of Chevuri Pedda Mallaiah is recorded as Hissadar (sharer) and in possessor column, it is recorded as 'Kuddu' (own).

Page 14 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar

33.Ex.A2 is certified copy of pahani for the year 1971-72, which gives the same particulars as in Ex.A1.

34.Ex.A3 is certified copy of pahani for the year 1979-80. In this pahani, name of

Naini Shambaiah is recorded for Ac 2-05 Gt in Sy.No.179/B and Ac 1-14 Gt in

Sy.No.180-181/A in pattadar column and Ac 1-15 Gt in Sy.No.275/A name of Naini

Shambaiah is recorded in pattadar column.

35.Ex.A4 is certified copy of pahani for the year 1994-95. In this pahani, name of

Thallapalli Sathaiah S/o Chinna Mallaiah is recorded in respect of Ac 2-05 Gt in

Sy.No.179/B and Ac 1-14 Gt in Sy.No.180-181/A. Thallapalli Sathaiah appears to be father of plaintiff. It might be that this entry was made basing on registered sale deed

Doct. No.1091/1994 dt.01.10.1994, which was cancelled.

36.Ex.A5 is certified copy of pahani for the year 1996-97. As per this pahani, name of Thallapalli Sathaiah S/o Chinna Mallaiah is recorded in pattadar column and name of Naini Lachamma W/o Shambaiah is recorded in possessor column in respect of Ac 2-15 Gt in Sy.No.179/B and Ac 1-14 Gt in Sy.No.180-181/A.

37.Ex.A6 is certified copy of pahani for the year 1998-99. As per this pahani, name of Thallapalli Sathaiah S/o Chinna Mallaiah is recorded in pattadar column and name of Naini Lachamma W/o Shambaiah is recorded in possessor column in respect of Ac 2-15 Gt in Sy.No.179/B and Ac 1-14 Gt in Sy.No.180-181/A and Ac 1-15 Gt in

Sy.No.275/A.

38.Ex.A7 to A14 are certified copies of pahanies for the years 1999-2000, 2001- 02, 2003-04, 2004-05, 2006-07, 2007-08, 2008-09 and 2009-10 respectively, which give the same particulars as in Ex.A5.

39.The above pahanies show that for most of the period from 1996-97, defendant

No.1 is shown as possessor of land in the three suit survey numbers. Only for one or

Page 15 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar two years, her husband is shown as pattadar. There is no evidence to show when Naini

Shambaiah died. There is no evidence to show who is Chevuri Pedda Mallaiah and how the property is shown in the name of Naini Shambaiah, husband of defendant

No.1. Right from 1996-97, the property is being shown in the name of defendant No.1 as possessor of the property. Further, defendant No.1 also gifted the property to defendants No.2 & 3 and all these facts are suppressed by plaintiff and he filed the present suit. The manner in whichfather of plaintiff got executed a registered saledeed in his favour in the year 1994 in respect of suit land by defendant No.1, albeit by impersonation of defendant No.1, shows that it is defendant No.1 who is recognized by father of plaintiff also as absolute owner of the suit property. Without any demur, I hold that the suit land is absolute properties of defendant No.1 and by virtue of her absolute ownership, defendant No.1 can deal with suit lands as she wishes U/sec.14 & 15 of Hindu Succession Act, 1956 and she gifted the same to her daughter and son-in- law defendants No.2 & 3. Thus, plaintiff cannot question the registered Gift Deed

Doct. No.596/2002 and 597/2002 dt.30.05.2002 by defendant No.1 in favour of defendants No.2 & 3.

40.In view of my above discussion, I hold that Learned Trial Judge rightly held that the plaintiffs failed to prove their claim and dismissed the suit of the plaintiffs. I do not see any reason to interfere with the well-reasoned impugned Judgment of the

Trial Court. These points are decided against the plaintiffs.

Point No.3:

41.In view of the findings given in Points No.1 and 2, the Appeal is liable to be

Dismissed.

Page 16 of 16 AS 90 of 2019 in OS 236 of 2014 PDJ Karimnagar 42IN THE RESULT, the Appeal Suit is Dismissed confirming the Judgment and

Decree dated 12.06.2019 passed by the learned Prl. Senior Civil Judge, Karimnagar in

OS No.236 of 2014. Each party to bear their own costs.

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

me in open court, on this the 9th day of April, 2025.

PRL. DISTRICT JUDGE,

KARIMNAGAR.

APPENDIX OF ADDITIONAL EVIDENCE

-- Nil --

PRL. DISTRICT JUDGE,

KARIMNAGAR.

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE

KARIMNAGAR

PRESENT : SMT. B. PRATHIMA Prl. District Judge Karimnagar.

Friday, the 11th day of April, 2025.

APPEAL SUIT No.36 of 2022

Between:

Byreddy Madhusudan Reddy S/o Narayan Reddy, age: 47 years, occ: Business, R/o. H.No.8-7-267, Hanumannagar, Karimnagar town and District.

…Appellant/plaintiff

And

1. Kallem Lachi Reddy S/o Yella Reddy, age: 52 years, occ: Agriculture, R/o. Mallaram village, Chinnakodur Mandal of Siddipet District.

2. Kallem Srinivas Reddy S/o Yella Reddy, age: 48 years, occ: Agriculture, R/o. Mallaram village, Chinnakodur Mandal of Siddipet District. …Respondents/Defendants

Aggrieved by the Judgment and Decree dt.07.04.2022 passed by learned

Prl. Senior Civil Judge, Karimnagar in

OS No.175 of 2016

Between:

Byreddy Madhusudan Reddy S/o Narayan Reddy, age: 40 years, occ: Business, R/o. H.No.8-7-267, Hanumannagar, Karimnagar town and District. …Plaintiff

And

1. Kallem Lachi Reddy S/o Yella Reddy, age: 45 years, occ: Agriculture, R/o. Mallaram village, Chinnakodur Mandal of Siddipet District.

2. Kallem Srinivas Reddy S/o Yella Reddy, age: 42 years, occ: Agriculture, R/o. Mallaram village, Chinnakodur Mandal of Siddipet District.

…Defendants

Page 2 of 12 AS 36 of 2022 in OS 175 of 2016 PDJ Karimnagar

APPEAL FILED UNDER ORDER 41 RULE 1 OF C.P.C.

This Appeal Suit came before me for final hearing in the presence of Sri B.Laxminarayana, Advocate for the appellant and Sri K.Ajay Chakravarthi, Advocate for the Respondents and upon hearing the matter and having stood over for consideration till this day, the Court delivered the following:

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

1.The unsuccessful plaintiff in OS No.175 of 2016 filed this Appeal seeking to set aside the Judgment and Decree dt.07.04.2022 passed in said suit by the learned

Prl. Senior Civil Judge, Karimnagar.

2.For the sake of convenience, parties hereinafter are referred to as they were arrayed before the Trial Court in OS No.175 of 2016.

3.OS No.175 of 2016 was filed by plaintiff against two defendants seeking relief for recovery of money of Rs.3,51,000/- with interest. The suit was Dismissed.

Brief pleadings of both sides before the Trial court are as follows:

4.Plaintiff filed the suit for recovery of sum of Rs.3,51,000/- with interest.

Plaintiff alleged that he entered into agreement of sale with defendants on 23.10.2013 agreeing to purchase subject suit lands for a total sale consideration of

Rs.54,00,000/- and he paid Rs.1,00,000/- as advance on the same day and he paid another sum of Rs.2,00,000/- on 17.12.2013. Later plaintiff came to know that suit land was sold to third parties. As such, plaintiff sought for refund allegedly paid by him to the defendants.

5.Defendants filed their written statement admitting entering into such agreement of sale. They however contended that the sale agreement was entered into to mobilize funds to pay the heavy debts incurred by defendants for the marriage of

Page 3 of 12 AS 36 of 2022 in OS 175 of 2016 PDJ Karimnagar daughter of defendant, that Plaintiff failed to pay the amount as stipulated time, that defendant paid only Rs.2,00,000/- but failed to pay the amount as stipulated and sought to dismiss the suit.

6.Basing on the above pleadings, learned trial Judge framed the following issues for trial:

1. Whether the plaintiff is entitled to the suit amount?

2. To what relief?

Preliminary Issue:

Whether this court is having jurisdiction to entertain the suit?

7.During the course of trial, plaintiff examined himself as PW1 and also examined PW2 and got marked Exs.A1 to A13. On behalf of defendants, defendant

No.2 examined himself as DW1 and also examined DW2 and got marked Ex.B1 to

B4.

8.Learned trial Judge framed the question of territorial Jurisdiction as preliminary issue and held that the suit being for specific performance of agreement of sale in respect of immovable property situated at Mallaram village of

Chinnakodur mandal of Siddipet District, though the agreement of sale was executed at plaintiff’s residence at Karimnagar, the Courts at Karimnagar have no territorial jurisdiction to entertain the suit, even for refund of sale consideration amount. In coming to such conclusion, learned trial Judge relied upon the authorityVadada

Ganeswara Rao and another Vs. Mummidisetti Vijaya Chamundeswari of

Hon’ble High Court. Learned trial judge Dismissed the suit of the plaintiff.

Page 4 of 12 AS 36 of 2022 in OS 175 of 2016 PDJ Karimnagar

9.Aggrieved by the Judgment and Decree of the trial Court, the unsuccessful plaintiff preferred this Appeal with the following grounds:

Grounds of Appeal:

1. The Judgment and Decree under Appeal is contrary to law and weight of evidence and probabilities of the case.

2. Trial Court failed to appreciate that issues were framed and when PW1 and PW2 were examined, question of framing preliminary issue at that stage does not arise.

3. Trial Court did not frame issues reflecting what material proposition of fact and law the parties are at variance and failed to frame issues on which the right decision of the case can be derived basing on material evidence on record.

4. Trial Court ought to have framed additional issue which could focus on the variance between the parties and ought to have afforded the opportunity to lead their evidence by both parties and failed to do so.

5. Trial Court decided the issues on territorial jurisdiction which is question of fact without taking any evidence into consideration and decided Issue

No.1.

6. Trial Court ought to have believed the documentary evidence produced by plaintiff and decided Issue No.1 in his favour and against the defendants.

7. Trial Court ought not to have believed the evidence of DW2 on behalf of defendants and decided the Issue against defendants.

Page 5 of 12 AS 36 of 2022 in OS 175 of 2016 PDJ Karimnagar

8. Trial Court ought to have believed the evidence of PW1 and thus, ought to have decreed the suit in his favour.

9. Trial Court wrongly placed the burden on plaintiff and decided the Issue against plaintiff.

10.Trial Court ought to have held that ex.A1 is proved and suit is liable to be decreed.

11.Trial Court ought to have held that the documentary evidence on behalf of defendants is not admissible in evidence more particularly in nature of this suit.

12.Trial Court failed to place burden of proof upon the defendants when the initial burden upon the plaintiff is discharged.

13.Trial Court failed to appreciate the Judgment of Hon’ble Supreme Court in Surender Kaur Vs. Bahadur Singh.

14.Trial Court failed to see that as Ex.A1 agreement of sale cannot be enforced, there is no question of ancillary relief for specific performance of agreement of sale to decide territorial jurisdiction.

10.Heard arguments submitted by both side counsel. Learned counsel for

Appellant/plaintiff argued on the lines of Grounds of Appeal.

11.The points that arise for determination in this appeal are -

1. Whether the suit being filed for refund of sale consideration amount, which plaintiff paid to them as advance to defendants under the agreement of sale dated 23.10.2013 in respect of immovable property

Page 6 of 12 AS 36 of 2022 in OS 175 of 2016 PDJ Karimnagar

being located at Mallaram village, is it maintainable at the Courts

situated at Karimnagar?

2. Whether the finding of the trial Court that the Courts at Karimnagar have no territorial jurisdiction to entertain the suit is correct?

3. To what relief?

12.No Additional evidence is adduced by either of the parties in this Appeal.

Point No.1:

13.In the suit, after framing of Issues, Trial was held, plaintiff examined himself as PW1 and also examined PW2 and got marked Ex.A1 to A13 and defendant No.2 examined himself as DW1 and also examined DW2 and got marked Ex.B1 to B4. At that stage, it appears that defendants filed a memo seeking to frame additional issue regarding jurisdiction of Court to entertain the suit and thus, the trial court framed the following issue as preliminary issue.

Whether this court is having jurisdiction to entertain the suit?

14.The short question that falls for adjudication in this first Appeal is whether the suit being filed for refund of sale consideration amount which plaintiff claims to have paid as advance to defendants under an agreement of sale dated 23.10.2013 in respect of immovable property located at Mallaram village, Chinnakodur Mandal of

Siddipet District, whether the suit at Courts at Karimnagar is maintainable?

15.I have gone through the authorities relied upon by the learned trial Judge and they are not directly on the point. In support of his case learned counsel for plaintiff relied upon the authorities National Sugar Industry, Madras and another Vs.

Page 7 of 12 AS 36 of 2022 in OS 175 of 2016 PDJ Karimnagar

Narala Venkaiah 1994(2) APLJ 470 (HC) and M/s. H.S.Shobasingh and Sons

Vs. Saurashtra Iron Foundary and Steel works (Pvt.) Ltd., AIR 1968 Guj 276.

16.1National Sugar Industry, Madras and another Vs. Narala Venkaiah 1994(2) APLJ 470 (HC):

16.2In this case, the suit was filed for refund of advance amount paid for machinery ordered. Hence, said case law is not applicable to the facts of the present case where the suit is filed for refund of sale consideration paid in respect of immovable property.

17.1M/s. H.S.Shoba Singh and Sons Vs. Saurashtra Iron Foundary and Steel works (Pvt.) Ltd., AIR 1968 Guj 276:

17.2In this case, question of territorial jurisidction fell for consideration.

However, this suit was also for recovery of money paid in respect of movable property and thus, it is not directly applicable to the question involved in the present suit.

18.In support of their case, learned counsel for defendants relief upon the authorities Satish Batra Vs. Sudhir Rawal 2013 (1) SCC 345 of Hon’ble Supreme

Court of India and another Judgment of Hon’ble High Court of Chattisgarh between

Jayant Jha Vs. South Eastern Coalfields Ltd.

19.1Satish Batra Vs. Sudhir Rawal 2013 (1) SCC 345:

19.2In this case, the question decided by the Hon’ble Supreme Court was “whether the seller is entitled to forfeit the earnest money deposit where the sale of an immovable property falls through by reason of the fault or failure of the

Page 8 of 12 AS 36 of 2022 in OS 175 of 2016 PDJ Karimnagar purchaser? The aspect of territorial jurisdiciton did not not fall for consideration int his case. Hence, this case has no application to the facts of the present case.

20.1Jayant Jha Vs. South Eastern Coalfields Ltd.. dt.24-08-2021:

20.2In this case, question of territorial jurisidction fell for consideration.

However, this suit was also for recovery of money paid in respect of movable property and thus, it is not directly applicable to the question involved in the present suit.

21.1U. Shobhan Kumar vs A. Karunakaran and others in Civil Revision Petition PD No.1411 of 2023 dt.07.06.2023:

21.2This case arose on the file of Hon’ble High Court of Madras. The case before the Hon’ble High court was when O.S.S.R.No.27000 of 2022 was presented for registration before the learned I Additional City Civil Court, Chennai, it was not registered, on the ground that the petitioner had not sought for relief of possession, and that the property in respect of which suit was filed is not situated in the territorial jurisdiction of the learned Judge and thereby, returned it with an objection that the Court has no territorial jurisdiction. Aggrieved by the same, Civil Revision

Petition was filed before the Hon’ble High Court.

21.3The following reliefs were sought for by the plaintiff in said suit:

(i) to direct the respondents to receive the balance sale consideration.

(ii) in case if the specific performance of agreement of sale, dated 16/3/2015, cannot be granted, to direct the defendant to pay Rs.29 lakhs along with interest, at the rate of 15%.

(iii) for a Permanent injunction restraining the defendants from alienating the suit schedule property.

Page 9 of 12 AS 36 of 2022 in OS 175 of 2016 PDJ Karimnagar

(iv). To declare that general Power of Attorney dated 9/5/2022 in Document No.1811 of 2022 is not binding on the plaintiff.

21.4The Trial Judge in said case held that though the relief of recovery of possession is not sought for by the plaintiff in the suit, the relief in respect of execution of registered sale deed also implies delivery of possession and further observed that under Section 55 (1) of Transfer of Property Act, the relief of possession is inherent to the relief of specific performance and thereby, the suit of the plaintiff is covered under clause (d) of Section 16 of CPC and thereby, the suit is to be termed as a suit pertaining to immovable property and held that the District

Court at Chennai lacks the territorial jurisdiction.

21.5Hon’ble High Court did not agree with the view taken by the trial court and held that said view is not correct. Hon’ble High Court held that plaintiff filed a suit for specific performance of agreement of sale dated 16.3.2015, rest of the three prayers are consequential to the first relief, that plaintiff did not seek for either declaration of title or recovery of possession and therefore, though the property involved in the agreement of sale is an immovable property situated outside the territorial jurisdiction of the Court, the relief sought for is not directly in respect of the immovable property but for a direction to the defendant to execute the registered sale deed. Hon’ble Hogh Court observed that admittedly, the cause of action arose in Chennai and parties are also residing in Chennai and held that as long as the plaintiff has not been seeking any relief in respect of the land involving the agreement of sale, the District Court should not have taken a view that it does not have territorial jurisdiction.

21.6Nextly, Hon’ble High Court referred to the authority of Hon’ble Supreme

Court in Adcon Electronics Pvt. Ltd vs. Daulat and Anr (2001) 7 SCC 698 and decided whether the suit before it was a ‘suit for land/ or not.’

Page 10 of 12 AS 36 of 2022 in OS 175 of 2016 PDJ Karimnagar 21.7In Adcon Electronics case supra, the question before the Hon’ble Supreme

Court was - Whether a suit simpliciter for specific performance of contract for sale of immovable property is a "suit for land" within clause 12 of Letters Patent of the

High Court of Judicature at Bombay?

22.1The Apex Court in Adcon Electronics case held that “a suit for specific performance of an agreement for sale of suit property, without a claim for delivery of possession, cannot be treated as a "suit for land". Said decision came for discussion before the Supreme Court in another case Rohit Kochhar vs Vipul

Infrastructure Developers Ltd.. decided on 26.11.2024. In Rohit Kochhar case,

Hon’be Supreme Court held that Adcons case was rendered without considering its

own decision in Babu Lal vs Hazari Lal Klshori Lal & Ors AIR 1982 SC 818 while placing reliance on the decision of the Federal Court in M/s Moolji Jaitha

and Co. v. Khandesh Spinning and Weaving Mills Co. Ltd. AIR 1950 FC 83

which was rendered in the context of the old Specific Relief Act, that the Federal

Court had no occasion to consider the amended regime brought into being by virtue of the Specific Relief Act enacted in 1963.

22.2In Rohit Kochhar case, the Apex thoroughly discussed how the Adcons case is distinguishable and held that the dicta in Adcons case is not applicable to the facts of the case. The important aspect to be noted is that the Supreme Court had extensively discussed about the territorial jurisdiction in suits filed for specific performance in respect of immovable property where different reliefs were sought and also when the relief of recovery of possession is not specifically sought. The

Supreme Court also held when the suit filed only for refund of sale consideration can be termed as suit for land or not.

Page 11 of 12 AS 36 of 2022 in OS 175 of 2016 PDJ Karimnagar 22.3The Judgment of the Apex Court in Adcons case was distinguished by the

Hon’ble High court of Calcutta in Polotrips India Pvt. Ltd. & Anr. vs Karnataka

Bank Limted & Ors. on 18 September, 2024.

23.Evidently, in the case on hand, plaintiff filed the suit seeking only the relief of refund of sale consideration amount paid. Learned trial Judge observing that the suit being for specific performance of agreement of sale in respect of immovable property situated at Mallaram village of Chinnakodur mandal of Siddipet District, though the agreement of sale was executed at plaintiff’s residence at Karimnagar, the

Courts at Karimnagar have no territorial jurisdiction to entertain the suit, even for refund of sale consideration amount. Said observation of learned Trial Judge is made without giving reasons for coming to said conclusion vis a vis the facts of the case and the legal position on the point. The question to be decided by the learned Trial

Judge is whether the suit for relief of refund of sale consideration amount in respect

of agreement of sale concerning immovable property situated in the jurisdiction of court outside the jurisdiction where the transaction took place, whether the courts where the transaction took place got jurisdiction to entertain the suit? Of course, the fact whether the transaction took place in whole or in part within the jurisdiction of the court, where the suit is filed itself may be a contentious issue, in which case, said aspect has to be decided after adducing oral and documentary evidence.

24.In the present case, it is seen from the Grounds of Appeal that the Appellant had taken a specific plea that the aspect of jurisdiction in this case is a mixed question of fact and law. It appears that without going fully into the factual and legal position involved in the question, learned trial Judge disposed the suit on deciding preliminary Issue which in the circumstances of the case, is not correct. I hold that the impugned Judgment and Decree are to be set aside. This point is decided accordingly in favor of the Appellant/Plaintiff.

Page 12 of 12 AS 36 of 2022 in OS 175 of 2016 PDJ Karimnagar

25.IN THE RESULT, the Appeal Suit is Allowed. The Judgment of Trial Court on preliminary issue is set aside. The suit for recovery of money is restored and learned Trial Judge is directed to dispose the suit on merits including deciding issue of lack of territorial jurisdiction. Each party to bear their own costs.

Partly typed by me and partly dictated to the Stenographer, transcribed by her, corrected and pronounced by me in open court, on this the 11 th day of April, 2025.

Prl. District Judge, Karimnagar.

APPENDIX OF ADDITIONAL EVIDENCE

-Nil -

Prl. District Judge, Karimnagar.