B. Sunita

1

In the Court of II Additional District Judge, Hindupur.

Present:- Smt. B.Sunita, IV Addl.District Judge cum - Spl. Judge for Trial of Offences Against Women, Anantapuramu. FAC of II Addl.District Judge, Hindupur.

Tuesday the 29th day ofMarch, 2022

O.S.No.19/2007

Between:-

1.Vikram Jethalal Joisher s/o. Jethalal Haridas Joisher, age 55 years

2.Jyothi Jethalal Joisher D/o. Jethalal Haridas Joisher, age 60 years

3.Smt. Devayani Prakash Joisher w/o Late Prakash Joisher, age 55 years

4.Riddhi Prakash Joisher s/o late Prakash Joisher, age 30 years,

5.Mihir, minor Rep. By the next friend Devayani, 3rd plaintiff,

All residing at D.No.168 and 170, Sant Thukarama Road, Bhanushali

Chambers, Masjid Bundar, Mumbai 400009.

... Plaintiffs.

1.Pratap Chaganlal s/o. Chaganlal Velji, age 77 years,

2.Mukul Chaganlal Joisher s/o. Chaganlal Velji, age 59 years

3.Premal Pratap Joisher s/o. Pratap Chaganlal, age 42 years

4.Ms.Jamna Chaganlal Joisher d/o. Chaganlal Velji, age 55 years 5Ms.Poulomi Pratap Joisher d/o. Pratap Chaganlal, age 48 years 6Mr.Deval Pratap Joisher s/o Pratap Chaganlal, age 39 years 7Chandresh Chaganlal s/o. Chaganlal Velji, age 74 years 8Kethan Chaganlal s/o. Chaganlal Velji, age 58 years 9Devayani Chaganlal d/o. Chaganlal Velji, age 73 years

All are Hindus, Business, r/o. Udaya Bhabyu Apartments, Mahatma

Gandhi Road, Ghatkopar East, Mumbai, Maharasthra State. D.2 to D.6 were added as per Order’s in IA.No.59/2008 date 23.08.2016, D.7 to D.9 were added asper Order’s in IA.81/2008 dated 23.08.2016.

Amended and added as per Orders in IAs.59/08 & 81/2008, dt.

23.08.2016.

…. Defendants.

2

This suit is coming on 05.03.2022, for hearing before me in the presence of

Sri C.H.Hanumantha Rao and Sri K.C.Krishna Reddy, Advocates for plaintiffs and

Sri J.Gangadhar Reddy, Advocate for defendants and upon hearing on both sides having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1. Averments of plaint in brief are that;

Suit is filed for declaration right and title of the plaintiffs to plaint schedule properties and also for grant of consequential injunction in their favour and to restrain defendants and their men, representatives at all from interfering with plaintiff’s peaceful possession and enjoyment of plaint schedule properties and in any event, Court comes to conclusion that, the defendants or their men are in possession of plaint schedule properties, it may be delivered to plaintiffs, through

Court along with costs and other reliefs.

(originally suit was filed against first defendant only. D.2 to D.6 were added as per Order’s in IA.No.59/2008 date 23.08.2016].

Thereafter, D7 to D9 were impleaded as per orders in IA No.81/2008 dated 23.08.2016.

2. Brief case of plaintiffs is that, first and second plaintiffs and one Prakash

Josiher are the children of Late Jethalal Haridas Joisher. Prakash Joisher predeceased his father and he during 1997, leaving behind his wife, son and daughter, who ware shown as plaintiffs 3 to 5 as his only legal heirs. 2nd plaintiff is only daughter and eldest among the children of Jethalal. Prakash Joisher and

Jathalal Joisher constitute a Hindu Joint Family and during the life time of Jethalal

Haridas Joisher, he was Manager of the joint family. Now 1st plaintiff is Manager of the family.

First defendant is contending that, he along with defendants no.2 to 6 3 formed themselves into a partnership firm and they have been in possession of plaint schedule properties since 1991.

Family of Jethalal Haridas Joisher was doing business in Bombay. He has his income. To expand his business, he found extensive land in Gudipalli and

Somandepalli village limits for establishing Sisal Fiber Factory etc. He was intending to do business in Agriculture, Horticultural, Mulberry, Medicinal,

Ayurvedic, Herbs seeds, Plants, Groundnuts, Mangoes, Coconuts, Tamarinds,

Bananas, Grains, Seeds, Spices, Cotton, Sisal Fiber and other products etc. He found 1800 acres of land suitable for his business and said lands were previously owned and possessed by one M/s Chanchal Bai Chabildas Mehata and some others. After negotiations he purchased the property for a valid consideration of

Rs.46,000/-. Prior to 03-07-1947 plaint schedule property was possessed by India

Factories Ltd., Therefore, Jethalal Haridas Joisher purchased the properties from

Smt. Chanchal Bai Chabildas Mehata and others under a registered sale deed

dated 20-09-1949, and since then Jathalal Haridas Joisher, was in possession and

enjoyment of the property.

Revenue records were also mutated in his name as he is only owner of entire property. He was doing business under the name and style “Jethalal and

Company”, at first instance and later a new firm “Bhanushali Sisal Fiber Industry and Plantation” was formed as a division of original firm and doing business activities.

When A.P Government invoked provisions of Land Reforms Act relating to the plaint schedule property and issued notices, said Jathalal Haridas Joisher, being unable to defend the litigation, decided to take assistance of his distant relative Ajit Premji, to look after legal proceedings before the Land Reforms 4

Tribunal, Penukonda. In turn said Ajit Premji, filed a declaration on behalf of

Bhanushali Sisal Fiber Industry and Plantation”.

Said Ajit Premji retired from partnership with effect from 15-11-1982. Another partner, Jashoda Bai w/o. Haridas Velji, also retired from partnership with effect from 15-11-1982. As Jathalal Haridas Joisher, wanted to continue above firm, his two sins Prakash Jethalal and Vikram Jethalal became new partners from 15-11- 1982 and one Mukul Chaganlal Joisher was also admitted to the partnership from 15-11-1982. Profits were equally divided among four members at the rate of 25 % each with effect from 16-11-1982. But, properties were never conveyed in favour of partnership firm or its partners at any point of time.

Mukul Chaganlal Joisher, voluntarily retired from Mrs. Bhanushali Sisal Fiber

Industry and Plantation”, with effect from 02.05.1996 at Mumbai. He relinquished all his rights and interests in the affairs of partnership firm. Remaining three partners Jethalal Haridas Joisher and his two sons continued as partners with effect from 02.05-1996.

Various demand notices were issued to Jethalal Haridas Joisher by competent authorities and he paid tax. This itself shows his possession and enjoyment along with ownership of plaintiff’s family without anybody’s interruption.

His right and title was also confirmed by Government. The National Highway

Authority of India, issued notice dated 23-08-2005, for acquisition of part of plaint schedule property by initiating legal proceedings against first plaintiff’s firm.

The recitals in partnership deeds relate only to business transaction and sharing of profits. But do not relate to transfer of rights relating to plaint schedule property. Therefore, none can claim and is entitled to any part of plaint schedule property. As Jethalal Haridas Joisher, felt it difficult to maintain business and to look 5 after estate for himself, he appointed some persons of his choice to look after activities of the firm, as he resided in Mumbai. Therefore partners of Bhanushali

Sisal Fiber Industry and Plantation, executed a G.P.A on 29-07-1989, by appointing one Prathap C.Joisher, Dayal H. Bhanushali and Suraj V.Bhanushali, as their agents. Said Prathap C.Joisher, is defendant herein and he is distantly related to the plaintiff. The two other agents belong to the caste of plaintiffs. Agents were authorized to open accounts with Bank for depositing and withdrawing amounts and to take necessary steps to protect interest of the plaintiffs in plaint schedule property by initiating any legal and other steps whenever necessary. All the

Agents accepted the terms of GPA. G.P.A., does not reveal anything about conveyance of plaint schedule property in favour of agents either expressly or impliedly.

Therefore, rights of defendants and other agents as per terms of G.P.A., are very limited and they have no independent right to take any decision. Said G.P.A was also liable to be cancelled at any point of time. Defendants developed evil- motive to knock away the property and in collusion with other two agents, took advantage of his possession as Agents under G.P.A and were mismanaging the affairs. On coming to know that, the defendant herein is proclaiming that, he was owner of plaint schedule property and also trying to create false and nominal documents relating to schedule mentioned property, first plaintiff and his father

Jethalal Haridas Joisher, cancelled the G.P.A, executed in favour of Agents and also communicated their decision to the Agents about revocation of G.P.A.

Sisal Crops could not be raised for number of years and hence machinery became useless. Therefore, defendant attempted to shift machinery to some other place, for which plaintiff did not allow. No business activities were conducted for a 6 long time. First defendant contended that, himself and other members of his family was allotted plaint schedule properties, through family settlement deed dated 27- 02-1991. Therefore, an application in IA.No.59/2008 was filed to implead Mukul

Chaganlal and Jamma Chaganlal, as parties to the suit along with three others, as they are proper and necessary parties and they were added as per Orders in

IA.81/2008 dated 23-08-2016.

When plaintiffs attempted to regularize the business and raising Sisal Fiber

Plants and other crops, defendants started troubling them and also threatened them and so also Jethalal Haridas Joisher. Therefore, OS.No.07/1996 was filed on the file of Senior Civil Judge Court, Penukonda. Said suit was dismissed by holding that plaintiffs 1 and 2 signed plaint in their individual capacity.

Since property was purchased by Late Jethalal Haridas Joisher in his name, it is his self acquired property. He was carrying business in the name of firm and no firm can claim to have interest in the property and also that, property was never considered as property of the firm at any time. Even land Reforms Tribunal,

Penukonda, also concluded that properties were owned and possessed by Jethalal

Haridas Joisher only and not by any firm.

In OS.No.07/1996, Jethalal Haridas Joisher, admitted possession of defendant in his cross-examination, but it was only with regard to the management of business activities and not relating to the ownership of the property. But, since trial

Court gave finding against the plaintiffs therein, they preferred appeal before Addl.

District Judge, Hindupur, but the same was dismissed on same grounds. Second

appeal preferred by 1st plaintiff was also dismissed at the time of admission by

Hon’ble High Court of A.P., by observing that no question of law was involved.

However, it was observed by Hon’ble High Court of A.P that, 1st plaintiff is at liberty 7 to file a fresh suit, for necessary relief. Hence, present suit is filed.

3. Rejoinder was filed on behalf of first plaintiff under Order VIII Rule 9 C.P.C and adoption memo was filed on behalf of plaintiffs 2 to 4, by contending that,

Jethalal Haridas Joisher purchased the property under a registered sale deed

dated 20-09-1949 and it will become property of partnership only if there is an

agreement among partners express or implied that, it is treated as property of the partnership. There is no such evidence. There is no rule that whatever is brought by a partner in partnership is continued to be used by the members as that of property of partnership. The rule of estoppel does not apply and Land Reforms

Tribunal has no power to decide the title and declaration filed to escape rigour the

Land Reforms. Land Reforms Proceedings are primarily meant to find out aggregate ceiling area of lands available for statistical data. They never affected personal rights of Jethalal Haridas Joisher. The Vast stretch of land barring 100 or 200 acres are not cultivable, but are amenable for Sisal Fiber Extraction, which are naturally growing Cactus family. They are taken care of by local persons, who are employed. Defendants and plaintiffs resided at Mumbai and since it is their land they have every right for re-entry into the land and they entered into their land without any resistance. Revenue entries confirmed their possession. The factory is in ruins since 1990. Rest of the barren track of lands are managed and enjoyed by the plaintiffs with their employment.

Defendants are entitled to take inconsistent pleas, but not mutually destructive pleas. They raised a plea that, sale deed dated 20-09-1949 was on behalf of joint family consisting of three branches of VELJI NARSHI till 27-02- 1991. On 27-02-1991, defendants got exclusive rights under a family settlement and they simultaneously contended that they got right over the suit schedule 8 properties in reconstitution of firm Bhanushali Sisal Fibre Industry on 04-08-1991.

Joint family and Partnership do not go together and they are mutually exclusive.

The Partnership Act, does not recognize joint family, while joint family is a status,

Partnership is a contract. Defendants by pleading that by both acts of family settlement and change of constitution of partnership on 04-08-1991, they got exclusive rights simultaneously proved themselves that they had no right in suit properties and their got up records of partnership, do not stand to legal scrutiny and they are void, inoperative documents.

4. Defendant No.1 filed written statement denying allegations made in plaint and contended that, the findings of OS.No.7/1996 on the file of Senior Civil Judge,

Penukonda, AS.01/2003, on the file of Addl. District Judge, Hindupur and

S.A.822/2006, on the file of Hon’ble High Court of A.P, gave a concurrent finding that, defendant has been in possession of all plaint schedule properties from 27- 02-1991. The findings were given by competent Courts of jurisdiction and they became final and operate as Res-judicata. Plaintiffs, have no right to question the finding or re-agitate those findings in subsequent proceedings with regard to plaint schedule properties. Plaintiffs are bound by said finding on question of facts.

Whether plaint schedule properties belongs to firm Bhanushali Sisal Fiber Industry and Plantation and whether plaintiffs were competent to file suit in their personal capacity or as an individual with regard to plain schedule properties is no longer res- integra.

Plaintiffs filed this suit on 31-12-2007, i.e., after 16 years 10 months and 4 days, from 27-02-1991 i.e, the date from when defendants were in possession of all plaint schedule properties as observed by competent Civil Courts. As plaintiffs are out of possession for more than 12 years from 27-02-1991, they are not 9 entitled to file present suit, which is also subject matter of OS.No.07/1996. Their right to sue got extinguished by Sec.27 of Limitation Act, 1963. The plaintiffs ought to have filed this suit within 12 years from 27-02-1991, as required by Article 65 of the Limitation Act. Therefore, suit is barred by limitation. Plaint does not disclose when plaintiffs got into possession of plaint schedule properties after passing of three judgments as referred above.

Description of plaintiff No.1, in long cause title is false. Plaintiff No1 does not have any business at Petakunta, Somandepalli Mandal of Ananthapur District. He resides and does business only in Mumbai. He never resided in any part of

Ananthapur. He visited Penukonda and its surroundings only when his father started false claims and started litigation regarding Petakunta properties by giving false address. Name and age of defendant is not mentioned correct. Government acquired 16 acres of land mentioned in schedule of plaint and written statement for widening National High Way No.7 and Competent Authority fixed market value at

Rs.70,000/- per acre. Plaintiffs are claiming that they were served copies of notice by National High Way Authority, but did not choose to state that market value of the property was Rs.70,000/- per acre. Therefore, by suppressing market value, valuation certificate was obtained from Sub-Registrar, Penukonda and evaded payment of Court fees at the time of filing of the suit.

Defendant leased out about 90 cents in Sy.No. 733-2 at Rs. 12,500/- every month for two years to one Soma Company, that was laying four-lane road as Contractor for National High Way Authority, under a registered lease deed dated 18-12-2007 and Soma Company paid Rs.37,500/- as advance to the defendants.

Plaint schedule lands have potential value and there is possibility of finding minerals such as Byrities etc. Each acre will fetch Rs.10,00,000/- or even more on 10 an average. With the establishment of the Science City at Obuladevaracheruvu

Mandal, value of lands in entire district increased. Therefore, it is necessary to direct the plaintiffs to value the suit property at the rate of Rs.3,00,000/- per acre and buildings at Rs.25,00,000/-.

Allegations regarding relationship between the plaintiffs is admitted. But denied that plaintiffs, Prakash Jethalal Joisher and Jethelal Haridas Joisher constituted Hindu joint family. After death of Prakash Jethelal Joisher, the family got disrupted ipse-jure. Plaintiff No.1 cannot be de-jure manger of the families of the plaintiff. Every member of Bhaushali family was doing business in Bombay.

Geneology of Velji Narshi family is as follows;

a) Velji Narshi had three sons 1) Haridas Velji 2) Premji Velji and 3)

Chhaganlal Velji. They constituted Hindu joint family. Velji Narshi died on 1920 and sons of Velji Narshi continued to be joint.

b) Jethalal Haridas Joisher and Vasanthalal Haridas Joisher who are also called

Jethalal and Vasanthlal are the sons of Haridas Velji. Jashoda Bai is the wife of

Haridas Velji. The plaintiff No.1 and Prakash Jethalal Joisher are sons and the plaintiff No.2, is the daughter of Jethalal Haridas Joisher.

c) Ashok Premji, Siris Premji, Ajith Premji and Kalki Premji are the sons of

Premji Velji.

d) Defendant, Mukul Chaganlal Joisher, Chandresh Chaganlal Joisher and

Ketan Chaganlal Joisher are the sons, Miss Jamma and Mrs Devayani are the daughters of Chhaganlal Velji Joisher.

Velji Narshi died in 1920 in joint status with his three sons. Chaganlal Velji died in joint status with his two brothers in 1970. Other brothers are residing jointly along with children of deceased also. Haridas Velji died while residing jointly with 11 his brother and children of his brother on 28-09-1985. Premji Velji died in 1994 as a separate member. Despite the deaths of Chaganlal Velji and Haridas Velji, there was no division of assets of joint family and that their joint status continued till 27- 02-1991.

Family of Velji Narshi was traditionally a business family with vast extensive business at various places, involving huge assets and good credibility. They used to pay taxes including Sales Tax, Profession Tax, and Income Tax individually. The joint family of Velji Narshi and his sons were doing business by forming into several partnership firms within the family and to reduce burden of taxes and earn profits in the names of individual members for the benefit of family. And that the property earned by each member was a joint family property. During 1949, Jethalal Haridas

Joisher was 20 years of age.

Jethalal Haridas Joisher did not have any independent business till family settlement on 27-02-1991. It was joint family that decided to start Bhanushali Sisal

Fiber Industry and Plantation at Petakunta, by purchasing factory and lands called

Petakunta and that they purchased lands in the name of Jethalal Haridas Joisher, with joint family funds of Rs.46,000/- under a registered sale deed dated 20-09- 1949, with a view to adjust accounts. Bhanushali Sisal Fiber Industry and

Plantation comprises not merely plaint schedule land, but also lands mentioned in schedule of the written statement. Therefore, Jethalal Haridas Joisher did not have exclusive right over plaint schedule property.

Schedule mentioned properties of written statement also form part of properties of Bhanushali Sisal Fiber Industry and Plantation at Petakunta, as they were purchased in the name of other family members of the Firm by the Firm. It owns an extent of Ac.1847-70 cents and not Ac.1775-79 cents as mentioned in 12 plaint schedule.

Ajit Premji filed declaration on behalf of the Firm U/ Sec.8 of Land Reforms (

Ceiling on Agricultural Holdings) Act, 1973 including lands shown in the schedule of written statement. The Land Reforms Tribunal, Penukonda, held each partner of the Firm, Bhanushali Sisal Fiber Industry and Plantation at Petakunta [ Ajit Premji,

Jasodabai and Jethalal Haridas Joisher were the then partners] were entitled to one standard holding. The Tribunal also held that, major portion of the land is not within the meaning of provisions of Land Reforms Act, 1973. Ultimately, Hon’ble

High Court was pleased to observe that, major extent out of Ac.1847-70 cents was not agricultural land. Therefore, there was no extent to surrender any land by the

Bhanushali Sisal Fiber Industry and Plantation at Petakunta, under Act I of 1973. It was defendant that, filed affidavit before Hon’ble High court of A.P, while filing petition. He also spent amounts for filing appeal in Ananthapur and revision against the Orders of Land Reforms Appellate Tribunal. The correspondence was also done in the name of defendant.

Dayal H.Bhanushali as a representative of the defendant, was residing in buildings in the plaint schedule property from 1991 and protecting the property.

With the permission of defendant, said Dayal H.Bhanushali, took one Gangadhar

Rao, to assist him in the management of properties about 11 years ago. However, said Bhanushali died in a road accident while going on motor cycle and Ganghadar

Rao was managing plaint schedule properties and other lands of Bhanushali Sisal

Fiber Industry and Plantation at Petakunta, on behalf of defendant and other members of his family. Said property is in possession and enjoyment of himself and other members of his family from 27-02-1991, as absolute owners and that the plaintiffs or their men and members of other branch of sons of Velji Narshi, to the 13 knowledge of plaintiff and Jethalal Haridas Joisher and adverse to the plaintiffs and

Jethalal Haridas Joisher. Therefore, from 27-2-1991, except defendant and his family members nobody is entitled to make any claim over the property of

Bhanushali Sisal Fiber Industry and Plantation at Petakunta. Plaintiff has no knowledge about lands or management of Bhanushali Sisal Fiber Industry and

Plantation at Petakunta.

Original sale deed dated 20-09-1949 is with the Firm and not filed in the proceedings of Land Reforms Act. As the sale deed is in the name of Jethalal

Haridas Joisher, revenue records were mutated in his name and not because he was absolute owner. After 1991, name of Jethalal Haridas Josiher was deleted and name of defendant/ Pratap Chhaganla Joisher was mutated in revenue records. Revenue records have no relevance, as revenue officials/ village assistants by sitting in their house fill columns relating to cultivation and due to indifference of revenue officials, real cultivators are not shown in records.

Jethalal Haridas Joisher categorically admitted possession of plaint and written statement schedule properties by the defendant in his evidence in

OS.7/1996. Therefore, this admission goes to show that, revenue records must

have been manipulated by plaintiffs for the purpose of this litigation by suppressing Judgments and Decrees passed in OS.7/1996, AS.1/2003 and

SA.822/2006.

When declaration was filed under A.P Land Reforms Act 1/1973, on behalf of Bhanushali Sisal Fiber Industry and Plantation at Petakunta and not on behalf of

Jethalal Haridas Joisher, Ajit Premji was managing said Firm.

14

Ajit Premji is first or full cousin of Jethalal Haridas Joisher and paternal grand-uncle’s son of plaintiff No.1. Plaintiff No.1 and his father admitted before land Reforms Tribunal that, all the lands were property of Bhanushali Sisal Fiber

Industry and Plantation at Petakunta, but not the property of the individuals. The

Tribunal held that, each of the partners of Bhanushali Sisal Fiber Industry and

Plantation at Petakunta was entitled to one standard holding. Two sons of Jethalal

Haridas Joisher, were minors on 01-01-1975 and hence they are not entitled to any holding under the act. Had the declaration was filed by Jethalal Haridas Joisher, as an individual, his two sons would have been allowed only one standard holding.

Bhanushali Sisal Fiber Industry and Plantation at Petakunta, was formed under a partnership deed dated 15-09-1976, with Jethalal Haridas Joisher,

Jashoda Bai and Ajith Premji as partners. However, on 16-11-1982, Ajit Premji and

Jeshoda Bai retired from the firm and hence a partnership deed dated 16-11-1982 with Jethalal Haridas Joisher, Plaintiff No.1, Mukul Chhaganlal Joisher and

Prakash Jethalal Joisher came into existence with firm name the Bhanushali Sisal

Fiber Industry and Plantation at Petakunta and it functioned from 16-11-1982 to 27- 02-1991 only.

New firm came into effect from 16-11-1982 and functioned till 27-02-1991 only. It was superseded by a resolution dated 27-02-1991 and a new firm was formed by defendant and members of his family as per partnership deed dated 09- 08-1991, which came into effect from 27-02-1991. There was no firm of Jethalal

Haridas Joisher and his sons alone at any time either from 1991 or before it. The defendant and members of his family brought into existence a new firm in super- cession of earlier firm in 1991 and Jethalal Haridas Joisher and his family had nothing to do with said firm.

15

The question of possession of plaint schedule properties was directly involved and decided in OS.7/1996 on the file of Senior Civil Judge, Penukonda and AS.No.1/2003 on the file of Addl. Distrct Judge, Ananthapuramu and the same was affirmed by Hon’ble High Court in SA.No.822/2006. Plaintiffs are bound by said Judgments and Decrees. The findings of said suit operates as res-judicata in this suit. Therefore, plaintiffs are prohibited from agitating the question of possession again in this suit. The defendant paid all taxes for buildings in plaint schedule property from 1991 onwards and also paid non-agricultural land taxes for some years. Later the tax was waived and not collected. Government is bound to carry out orders of the Courts. If plaintiffs obtained any document from

Government, it must have been manipulated and such documents are inadmissible in evidence to determine the title and possession of parties to the suit.

The National Highways Authority issued notice to 1st plaintiff dt.23-08-2005 must have been manipulated by 1st plaintiff and hence no evidentiary value can be attached to it. The plaintiffs are estopped from raising such pleas by their own admissions made before Land Reforms Tribunal. Hon’ble High Court in

SA.822/2006 in clear and unambiguous terms stated that, “I found no grounds to

admit the second appeal and hence second appeal is dismissed. However, if the appellants feel that possession of respondent is illegal, they are at liberty to file a suit for recovery of possession of the suit property from the respondents if they are so advised”.

Alleged G.P.A is false. When there is no GPA at all, the question of GPA containing or not containing terms as alleged in plaint is of no relevance. Further, since Jethalal Haridas Joisher admitted that the G.P.A produced into Court is forged one. But no attempt is made to produce original GPA and hence plaintiffs are estopped from pleading alleged GPA. He is managing properties along with 16 his other family members from 27-02-1991. At no point of time he offered to sell plaint schedule properties or any other properties at Petakunta.

The machines did not work for some years after 1991. Later on they were discarded and Diesel Engines were used by him. As the agave (ALOE) plants are not giving expected yields, the machinery got rusted due to non use. At no point of time from 27-02-1991, the plaintiff No.1 and his father were allowed to step in to plaint schedule and other properties without permission of the defendant and his representatives.

Plaintiff No.1 and his father with the support of D.S.P., Penukonda, sent for

Dayal H. Bhanushali and threatened him and in turn Dayal H.Bhanushali sent a petition to Superintendent of Police, Ananthapuramu and also filed a Writ before

Hon’ble High Court to direct the Deputy Superintendent of Police and other police

officers, not to interfere in civil matters. There was a threatening to explode the factory and guest house, if they do not vacate the premises. Plaintiffs are not entitled to file suit in their individual capacity as in OS.No.7/1996 and AS.1/2003, it was observed that, it is a property of partnership firm and hence, the suit is to be rejected.

As per resolution dated 27-02-1991 that was signed by all three persons representing three different branches, was attested by an Advocate-cum- Notary

Public Sri A.M.Chabria. Thereafter, on the same day, Prakash Jethalal Joisher,

Jethalal Haridas Joisher and plaintiff No.1 tendered resignations to their partnership in the Firm Bhanushali Sisal Fibre Industry and Plantation, Petakunta by giving separate letters and retired from Partnership Firm. Therefore, the properties of the Firm mentioned in schedule got vested with the defendant and members of his family. Only partners remained with the Firm as on 27-02-1991, after other three resigned was Mukul Chaganlal Joisher, who is brother of 17 defendant. The three branches of the family met gain on 14-04-1991 and affirmed the resolution dated 27-02-1991 and thus defendant, his brothers and sisters became exclusive owners of plaint schedule properties. And same name of Firm was retained due to sentimental reasons. Partners of the new firm, “Bhanushali

Sisal Fiber industry and Plantation, Petakunta” dated 09-08-1991 are 1) defendant, 2) Mukul Chhaganlal Joisher 3) Premal Pratap Joisher s/o the defendant 4) Ms.Jamna Chhaganlal Joisher 5) Miss Poulomi Pratap Joisher and

6) Mr Deval Pratap Joisher.

After constitution of new Firm on 09-08-1991, the old accounts in State Bank of India, Penukonda, Chatkopar and Canara Bank, Somandepalli were closed and new accounts were opened. Defendant and his agents were operating new accounts of the Firm from 27-02-1991 and defendant was paying all taxes and submitting Income Tax Returns. New Firm has its own Sales Tax Number. Change of partnership was intimated to all concerned. Electricity bills were paid by defendant and his representatives.

Therefore, plaintiff No.1 and his father filed OS.7/1996 for grant of permanent injunction claiming Ac.113-81 cents only in Sy.No.67, Ac.238-67 cents only in Sy.No.99, though full extents are A.201-26 and Ac.348-18 respectively. In

OS.No.7/ 1996 the extent of S.No.733-2 was shown as 210-2. Now plaintiffs are

making false claims for full extents of S.Nos.67 & 99. Plaintiffs in OS.7/1996, filed a memo on 29-1-1998 into Court stating that, the suit was not pressed regarding items relating to S.Nos.80-1, 81, 93 and 73-2 of Gudipalli Village as the properties were not purchased by Jethalal Haridas Joisher. Jethalal Haridas Joisher in his evidence also admitted that, he filed a memo giving up rights in those S.Nos. 80-1, 81, 93 and 73-2. Jethalal Haridas Joisher stated in his evidence, after seeing 18 plaint, that he did not made any claim to larger extent than the extents which were mentioned in plaint. He did not claim more extent than Ac.113-81 in S.No.67 as mentioned in the plaint and that he claimed Ac.238-67 in S.No.99 as mentioned in plaint and not more. Plaintiffs have no right to make claims to any extent that was disowned by Jethalal Haridas Joisher as heirs of Hethalal Haridas Joiser.

Filing of OS.7/1996 is also with malafide intention. The suit is not maintainable in view of family arrangement dated 27-02-1991.

Suit is barred by limitation, as plaintiff admitted that, they were out of possession from 27-2-1991 till 31-12-2007 and even up to this plaint. Mere claim of assertion of plaintiffs that, they are in possession, cannot bring the suit within the period of limitation, particularly in view of clear findings in OS.No.7/1996.

The plaintiffs have no right to seek for declaration of title and consequential relief of injunction, when competent Court gave definite finding that plaintiffs were not in possession of plaint schedule properties from 27-02-1991. There is no cause of action to file the suit. Finally prayed for dismissal of suit.

5. Additional written statement was filed on behalf of D.1 on 30-12-2016 contending that, plaintiff No.1 and his father filed OS.No.15/1996 on the file of

Vacation Civil Judge, Ananthapuramu, for grant of permanent injunction, restraining the defendants, their men and agents from interfering with management, administration and possession of Bhanushali Sisal Fibre industry and Plantation, against defendant No.1 and two others in respect of suit property. Cause of action for seeking declaration and recovery of possession was in existence at the time of filing OS.7/1996. Therefore, plaintiffs are barred from filing present suit seeking for declaration of title and hence suit is barred under Order II Rules 1 and 2 C.P.C.

PW.1 was very clear as stated in his evidence that, he was not claiming more 19 extents in Sy.No.67 & 99 than those mentioned in schedule of the plaint in

OS.No.7/1996. The findings of Court became final and hence suit is liable for

rejected.

6. Third defendant filed written statement denying allegations made in plaint, but contended that very claim by the plaintiffs to the extent given up in S.Nos.67 and 99 has to be rejected in limine. No plaintiff can be permitted under any law to advance a plea contrary to what is pleaded in plaint. Plaintiffs deliberately gave up the relief of declaration of their title or recovery of possession of properties mentioned in the schedule of the plaint in OS.7/1996.

In plaint of OS.7/1996 it is mentioned that schedule mentioned property is exclusive property of first plaintiff as he purchased it under a registered sale deed

dated 20-09-1949. But schedule of plaint in OS.7/1996 included properties

purchased in the names of Vasanthalal Haridas Joisher, i.e., brother of Jethalal

Haridas Joisher/plaintiff No.1 in OS.7/1996 under sale deed dated 28-01-1969,

Premji Velji, i.e., paternal uncle of Jethalal Haridas Joisher / plaintiff No.1 in

OS.7/1996- under sale deed dated 9-9-1963, Bhanushali Purushotham under sale

deeds dated 28-1-1969 and 6-3-1969 and also properties purchased in the name of Jethalal Haridas Joisher (Plaintiff NO.1 in OS.7/1996) under sale deed dated 9- 3-1954. This inclusion of those properties in the schedule of plaint, positively established that properties mentioned in schedule of plaint in OS.7/1996 were properties of the Firm Bhaushali Sissal Fibre Industry and Plantation and that the

Firm was Joint Family Firm of three sons of Velji-Narshi / paternal grand father of

Jethalal Haridas / Plaintiff No.1 in OS.7/1996.

Plaintiff in OS.7/1996 gave up his rights in properties purchased in the names of Vasanthalal Haridas Joisher, Premji Velji, Purushotham Bhaushali and 20 also properties purchased in the name of Jethalal Haridas Joisher (Plaintiff No.1 in

OS.7/1996) under sale deed dated 9-3-1954, though all those properties belonged

to former Firm Bhanushali Sissal Fibre Industry and Plantation prior to 27-2-1991 and a declaration was submitted by the Firm before Land Reforms Tribunal, in 1976.

Hon’ble High Court in Revision against orders of Appellate Tribunal

Ananthapuram held that, remaining land was not agricultural land and hence there is no need to surrender to Government. That order of Land Reforms Tribunal has become final and hence cannot be questioned in any Civil Court as ordained by

Sec.26 of A.P Act I of 1973.

In OS.7/1996, a plea is taken that since plaintiff and other partners are based at Mumbai, they executed a General Power of Attorney dated 29-7-1989 in favour of defendants herein to manage the Factory in schedule mentioned property.

Hence, cause of action for filing a suit for declaration of title over the plaint schedule properties and permanent Injunction or for delivery of possession of the plaint schedule properties to the plaintiffs was in existence long prior to the filing of

OS.7/1996 and at the time of filing OS.15/1996 / OS.7/1996. But yet, the

plaintiffs did not choose to seek or relief of declaration of title and delivery or recovery of possession of properties mentioned in the schedule of plaint in

OS.7/1996. Hence the suit is barred u/o II Rule 2 CPC.

The plaintiff No.1 (Jethalal Haridas Joisher) clearly admitted in his evidence as PW.1 in OS.7/1996 that the properties were entrusted to defendant no.1, but did not mention when and how possession of properties mentioned in the schedules of plaints in both suits, were taken back by the plaintiffs and from when plaintiffs came into possession. It is also averred that, since defendants 1 and 2 high 21 handedly tried to take law into their hands, they filed a complaint before the DSP of

Police, Penukonda and necessary protection was also ordered. In fact defendants 1 and 2 in OS.7/1996 filed a Writ against police and the Hon’ble High Court directed the Police not to interfere in Civil matters.

As per the statements made in plaint in OS.7/1996, the cause of action for filing a suit for declaration of title or recovery of possession of plaint schedule properties was in existence at the time of filing and prior to filing OS.7/1996.

except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted.

The cause of action for seeking the relief of declaration of title of the plaintiffs over the properties arises, the moment the title of plaintiffs over the properties was denied by defendant. Plaintiffs have no right to file present suit in their individual capacity as according to plaintiffs, the properties belonged to Firm Bhanushali

Sissal Fiber Industry and Plantation.

It is significant to note that Vasanthlal Haridas Joisher, Premji Velji and

Purushotam Bhanushali did not raise any objection for inclusion of lands in their names in the declaration filed by the Firm Bhanusali Sissal Fibre Industry and

Plantation at Petakunta under Sec.8 of A.P. I of 1973. Those persons are not making any claim over the lands purchased in their names.

Jethalal Haridas Joisher and his two sons tendered resignations as partners of the Firm Bhanusali Sissal Fibre Industry and Plantation at Petakunta on 27-2- 1991, in pursuance of Family settlement and defendants were inducted into possession of all the properties mentioned in schedules of the plaint and written statement of defendant No.1 in present suit by all the members of former joint 22 family under Family settlement dated 27-2-1991. Jethalal Haridas Joisher, plaintiff

No.1, and his brother Prakash Jethalal Joisher and all other former members of joint family ceased to have any right over the properties mentioned in schedule of the plaint and written statement of defendant No.1 from 27-2-1991.

Mere issuing of notice by National High Ways Authority of India dated 23- 8-2005, depending on the alleged Revenue records, not knowing true facts and actual possession of lands and result of suit OS.7/1996, cannot carry any value relating to acquisition of part of plaint schedule properties or initiating legal proceedings against first plaintiff herein. Properties mentioned in schedules of plaint and written statement of defendant No.1 are the properties of joint family of three sons of Velji Narshi. From 27-2-1991, defendants alone became absolute and exclusive owners and possessors of all properties mentioned in the schedules of plaint and written statement of defendant No.1 in pursuance of Family settlement dated 27-2-1991 as they were given by all the former members of joint family of the sons of Velji Narshi. Defendants alone are in actual physical possession of all the properties in their own right from 27-2-1991.

The plaintiffs are forbidden from questioning the findings given in OS.7/1996 and consequent appeals and that the findings about possession of properties mentioned in the schedule of plaint operate as Res-judicata under Sec.11 of C.P.C and debarred the plaintiffs from making any claim to plaint schedule properties.

Suit is hopelessly barred by limitation as plaintiffs filed the suit 17 years after 27-2- 1991.

However, he admitted that, the buildings and machinery became useless. The suit against the defendants got barred by time long ago. The fact that defendants 2 to 9 were partners of the Firm Bhanushali Sissal Fibre and Plantation registered on 9-8-1991 was mentioned in written statement of defendant No.1 in OS.No.7/1996.

23

Impleading, defendants 2 to 9 or filing the suit against defendants, in the year 2016, in their individual names in any proceedings relating to plaint schedule properties is illegal and barred by time. Plaintiffs should and ought to have filed suit against the Registered Firm Bhanushali Sissal Fibre and Plantation as required by

Order XXX C.P.C within time, questioning the validity of Family Settlement dated 27-2-1991 in which brother of Jethalal Haridas Joisher was a member.

Findings in OS.7/1996 and the appeals operate as resjudicata. At no point of time, Jethalal Haridas Joisher enjoyed any part of the plaint schedule properties as owner in his individual capacity. The Hon’ble High Court in very clear terms stated that, the plaintiffs were at liberty to file a suit for recovery of possession of suit properties from respondents, if they are so advised. No person would advise filing of suit for declaration of title and permanent injunction of prohibition ordained

U/O. II Rule 1 & 2 C.P.C. As already submitted no Court can give any liberty to file any fresh suit contrary to the mandatory Provisions contained in Order II Rules 1 & 2 and Sec.11 C.P.C, Articles 59 and 56 of the Limitation Act and Provisions of land

Reforms Act of 1973.

The Market value given in plaint for plaint schedule properties is far below actual value of plaint schedule properties. Plaintiffs are bound to give true and correct market value of plaint schedule properties and pay Court Fees on the true and correct Market value. Hence plaint is liable to be rejected with costs. Plaintiffs having valued the suit u/s.24 (a) of A.P.C.F and S.V Act, 1956 are not entitled to seek declaration and permanent injunction under any circumstances. Finally prayed for dismissal of the suit with costs.

24

7. Basing on the averments, following issues are settled for trial:-

1) Whether the plaintiffs are entitled for declaration of title over the suit property?

2) Whether the plaintiffs are entitled for permanent injunction as prayed for?

3) Whether the plaintiffs are entitled for recovery of possession of the suit property?

4) Whether the suit is barred by Res-judicata in view of the dismissal of the suit in OS.No.7/1996?

5) Whether the suit is barred by limitation?

ADDITIONAL ISSUE framed as per IA.31/2022 on 15.02.2022:

Whether the suit or any part thereof is barred by Order II R.2 CPC?

8. To prove their respective contentions on behalf of plaintiffs, PW1 to Pw9 are examined and Ex.A.1 to A.39 and Ex.X.1 to Ex.X.51 are marked. On behalf of defendants Dw1 to Dw4 are examined and Ex.B1 to Ex.B160, are marked.

9. Learned counsel for plaintiffs submitted following decisions for reference;

1) Vimal Chand Ghevarchand Jain Vs. Ramakant Eknath Jadoo, reported in 2009 (5) SCC 713,

2) Janardhan Prasad Vs. Ramdas reported in 2007 (15) SCC 174,

3) Noorul Hoda Vs. Bibi Raifunnisa and others reported in 1996 (7) SCC 767,

4) Abdul Rahim Vs. Sk.Abdul Zabar and others reported in 2009 (6) SCC 160,

5) Suraj Lamps Vs. State of Haryana reported in 2012 (1) SCC 656,

6) Satyapal Anand Vs. State of State of M.P Reported in 2016 (1) SCC 767,

7) Vundavalli Ratna Manikyam Vs. V.P.P.R.N. Prasada Rao reported in 2020 (3) SCC 289,

8) Anathula Sudhakar Vs. P.Buchi Reddy reported in 2008 (4) SCC 594,

9) A.Shanmugam Appellant Vs. Ariya Kashatriya Rajakula Vamshamedalaya, reported in 2012 (6) SCC 430,

10) S.P.Chengalvaraidu Naidu ( dead) by Lrs. Vs. Jagannath ( Dead) by LRs And others reported in 1994 (1) SCC 1,

11) A.V.Papaiahsastry Vs. Govt. of A.P and others reported in 2007 (4) SCC 221,

12) Arjun Lal Gupta and Ors. Vs. Mriganka Mohan Sur And Ors. Reported in AIR 1975 SC 207,

13) State of Madhya Pradesh Vs. State of Maharastra and Others reported in 1977 AIR 1466,

14) Ms.Rukhmbi Vs. Lala Laxminarayana and Others reported in AIR 1960

SC.335,

15. Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh in reported in 1969 (1) SCC 386 16.Kasaram Jayamma and Another Vs.Commissioner of Income Tax Orissa, reported in 2008 (1) APLJ 164 (HC), 25

17. In Rashiklal & Co. Vs. Commissioner of Income Tax Orissa reported in (1998) 2 SCC 49,

18. In M/s.Boda Narayana Murthy and Sons Vs. Valluri Venkata Suguna and Others, reported in AIR 1978 AP 257,

19. In Arjun Kanoji Tankar Vs. Santaram Kanoji Tanker reported in 1969 (3) SCC 555,

20. In Alluri Venkatapath Raju and another Vs. Dantuluri Venkatanarasimha Raju and Others reported in AIR 1936 PC 264,

21. In Kasetty Ampaiah Vs. Pedda Alpuramma and others reported in 1995 SCC Online AP843,

22. In Edla Venkat Raj Reddy Vs. Edla Linga Reddy ( died) per LRs. And others reported in (2000) 5 ALD 654,

23. In Dodla Kumaraswami Reddy Vs. Dodla China Abbayireddy and Others, reported in (2002) 1 ALD 662,

24. In Bhaskar Rao Vs. K.A.Rama Rao, reported in (2010) 5 ALD 339,

25. In K.Satyanarayana And Others Vs. K.Krishna Reddy in SA.No.820 of 1999 & CRP No.3765 of 2009,

26. In K.Armuga Velaiah Vs. P.R.Ramaswamy and others, reported in 2022 (1) CTC 698,

27. In Pratap Singh ( Dead) Through LR and others Vs. Shivram ( Dead) through LR, reportedin (2020) 11 SCC 242,

28. In Uttam Chnd ( Dead through LRs Vs. Nathu Ram ( Dea) through LRs and Others, reported in (2020) 11 SCC 263,

29. In Karnataka Board of Wakf Vs. Government of India and others, reported in (2004) 10 SCC 779,

30. In Polamrasetti Manikyam and others Vs. Teegala Venkata Ramayya and others reported in (2014) 5 SCC 603,

31. The Bar Council of Andhra Pradesh Vs. The Government of Andhra Pradesh and Others, reported in 1990 (1) APLJ (HC) 273,

32. In Ashok Kumar and Others Vs.Gangadhar and Others, reported in AIR 2007 AP 145,

33. In Gottumukkala Sundara Narasaraju and 2 others Vs. Pinnamaraju Venkata Narasimharaju and 4 others, reported in (2016) 3 ALD 724,

34. In Ravinder Kaur Grewal and Others Vs. Manjit Kaur and others, reported in 2019 (8) SCC 729,

35. In T.Anjanappa and others Vs. Somalingappa and others, reported in (2006) 7 SCC 570,

36. Meenugu Mallaiah and Others Vs. Aanthula Rajaiah and others, reported in 2017 (1) ALD 457,

37. In Annasaheb Bapursheb Patil and Others Vs. Balwant ( Dead) by LRs. & Heirs and Others, reported in (1995) 1 SCR 88,

38.In Smt. Sonti Ramanamma and another Vs. Hussaini Begum and others reported in (2015) 1 ALD 457 (DB),

39. In Dagadanao (Dead) by LRs Vs. Abba Alias Glab Rustum Pinjari, reported in (2017) 13 SCC 705,

40. In Narasamma and Others Vs. A.Krishnappa (Dead) through Legal Representatives ( 2020) 15 SCC 2018,

41. In Narendra Kante Vs. Anuradha Kante, reported in (2010) 2 SCC,

42. In Bengal Waterproof Limited Vs. Bombay Waterproof Manufacturing Company and another reported in AIR 1997 SC 1398,

43. In Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and others, reported in (2004) 3 SCC 277,

44. In Union of India rep. By its Secretary and Others Vcs. Nallapaneni Lakshmi Kumar, reported in (2011) 1 ALD 329,

45. In S.Nazeer Ahmed Vs. State Bank of Mysore and Others, reported in (2007) 11 SCC 75

46. In Kasarapu Sujatha and another Vs. Veera Velli Veera Somaiah, reported in (2008) 3 ALD 525,

47. In Ananthula Sudhakar Vs. P.Buchi Reddy (dead) by LRs and others, reported in (2008) 4 SCC 594,

48. The Jamia Masjid Vs. K.V.Rudrappa ( since dead) by L.Rs. and others, reported in AIR 2021 SC 4523,

49. In Srilankappa Vs. Karnataka Industrial Corporation, reported in (2021) 14 Scale

50. In Tilak Raj Bakshi Vs. Avinash Chand Sharma, reported in (2020) 15 SCC,

51. In Bhagawat Sharan Vs. Purushotham, reported in (2020) 6 SCC,

52. In Nand Ram Vs. Jagadish Prasad, reported in (2020) 9 SCC, 26

53. In Smt. Rajeswari Vs. Balchand reported in AIR 2001 MP,

54. In P.S.Sair Ram Vs. P.A.Rama Rao, reported in (2004) 11 SCC,

55. In V.Srisailam Vs. V.Krishna Murthy, reported in (2003) 1 ALD,

56. In Suryadevara Pullaiah Vs. Suryadevara Satyanarayana, reported in AIR 1998 Gujarat

57. In Vijay Ben Vasharam Vs. State of Gujarat, reported in AIR 1998 Gujarat

58. In A.C.Lakshmipathi Vs. A.M.Chakrapani, reported in AIR 2001 Madras,

59. M.Siddiq (D) through LRs Vs. Mahant Suresh Das & Others (Sri Rama Janma Bhoomi case), reported in (2020) 1 SCC,

60. In Williams Vs. Lourdusamy and Others, reported in (2008) 5 SCC 647,

61. In Commissioner of Central Excise, Vs. Srikumar Agencies and Others.

10. Learned counsel for Defendants submitted following decisions for reference;

1) In Maddi Bal Reddy & Ors. Vs. Merugu Anathamma & Ors reported in 2002 (3) A.P.L.J. 454 (HC),

2) In Khatri Hotels Private Limited and another Vs. Union of India and another reported in (2011) 9 Supreme Court Cases 26,

3) Ishwar Ganapati Kyasti and Others Vs. Gurulingappa Bashettappa Kyasti and Another, reported in 2000 SCC OnLine Del 2571,

4) Sukhbiri Devi & Others Vs. Union of India and Ors. Reported in 2009 SCC OnLine Del 2571,

5) Maqbool Fatma (Smt) and Others Vs. Deputy Custodian General Evacee Property and Another, reported in (1996) 5 SCC 493,

6) Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others (2019) 8 SCC 729,

7) Suman Devi Vs. Manisha Devi and Others, reported I (2018) 9 SCC 808,

8) State of Gujarat Vs. PWD Employees Union reported in C/LPA/1134/2017,

9) N.V.Srinivasa Murthy and Others Vs. Mariyamma ( Dead) by Proposed LRS and Others, reported n (2005) 5 SCC 548,

10) Ananthula Sudhakar Vs. P.Buchi Reddy (Dead) By Lrs. And Others, reported in (2008 ) 4 SCC 594,

11) Sulochana Amma Vs. Narayana Nair, reported in (1994) 2 SCC 14,

12) Annaimuthu Thevar (Dead) by LRs. Vs. Alagammal and Others, reported in (2005) 6 SCC 202,

13) Garlapati Venkateswarlu (died) per LRs.and Others Vs. Divi Appalacharyulu, reported in 2013 SCC OnLine AP 914,

14) Sardar Balawanth Singh Vs. Sardar Bhagath Singh, reported in 2015 SCC OnLine Hyd 207,

15) Roshan Minoo Patel and Ors. V.Union of India and Ors., reported in MANU/AP/0441/2011,

16) Adiveppa and Others Vs. Bhimappa and Another, reported in (2017) 9 SCC 586, 17). M.Veerabhadra Rao VS. Tek Chand, reported in Supp SCC 571,

18) New Okhla Industrial Development Authority Vs. Ravindra Kumar Singhvi (Dead) Thr. Lrs., reported in 2022 SCC OnLine SC 186,

19) Kallepally Krishnam Raju Vs. The Commnr. & I.G of Registration & Stamps, A.P. Hyed & Anr., reported in 2007 (2) APLJ. 290 (HC),

20) Gannamani Anasuya and Others Vs. Parvatini Amarendra Chowdary and others, reported in 2010 SCC OnLine AP 299,

21) Ketineni Chandrasekhar Rao Vs. Boppana Seshagiri Rao and Others, reported in 2016 SCC OnLine Hyd 386,

22) Korukonda Chalapathi Rao and Another Vs. Koruonda Annapurna Sampath Kumar, reported in 2021 SCC OnLine SC 847,

23) Subraya M.N. Vs. Vittala M.N.and Others, reported in (2016) 8 SCC 705, 24). In Prahlad Pradan and Others Vs. SonuKumhar and Others reported in (2019) 10 SCC 259, 25). In Bhimabhai Mahadeo Kambekar (Dead) Throuh Legal Representative Vs. Arthur Import and Export Company and Others, reported in (2019) 3 SCC 191, 26). In Sawarni (Smt.) Vs. Inder Kaur (Smt.) and Others, reported in (1997) 7 SCC 137,= (1996 ) 6 Supreme Court Cases 223. 27). In Balwanth Singh and Another Vs. Daulat Singh ( Dead) by LRs. And others, reported in (1997) 7 SCC 137,

28) In Mathathita Sai Meditation Centre Yogasram, Hanamkonda Vs. Nallela Lechamma and Others, reported in 2006 SCC OnLine AP 187,

29) Reghu Maheshwara Rao Vs. Vyricherla Kishore Chandra Suryanarayana Deo and others (para 32), reported in 2010 SCC OnLine AP 1008,

30) Union of India and Others Vs. Vasavi Cooperative Housing Society Limited and Others, reported in (2014) 2 SCC 269, 27

32) Hassan Chand & Sons Vs. H.H.Maharaja Shri Gaj Singh, reported in 1961 SCC OnLine Raj 125 : 1961 RLW 295.

33) Ravinder Kaur Grewal and Others Vs. Manjit Kaur and others, reported in (2019) 8 Supreme Court Cases 729.

34) Sagufa Ahmed Vs. Upper Assam Plywood Products (P) Ltd. Reported in (2021) 2 Supreme Court Cases 317.

35) K.J.Abraham and Ors. Vs. Mariyamma Itty and Ors. In AS.564/2001,

36) Shrinivasa Krishna Rao Kango Vs. Narayana Devji Kango and Others reported in 1954 AIR 379, 1955 SCR 1,

37) Major Singh Vs. Mala Devi in RSA.No.153 of 2015 (O & M),

38) Oswal Fats ad Oils Limited Vs. additional Commissioner (Administrative) Barely division, Bareilly and others, reported in (2010) 4 Supreme Court Cases 728

39) Union of India and Others Vs. Vasavi Cooperative Housing Society Limited and Others, reported in (2014) 2 Supreme Court Cases 269.

40) Amarsingh Vs. Union of India, reported in (2011) 7 Supreme Court Cases 69

Heard both sides. Written arguments filed on behalf of both sides.

11. ISSUE No. 5.

Learned Advocate for defendants argued that, the defendants came into possession of the property on 27-02-1991 under family settlement marked as

Ex.B8 and Ex.B121 and hence it should be taken as starting point for computing limitation. Therefore, filing this suit during 2007 is barred by limitation.

12. Per contra, learned Advocates for plaintiffs argued that, said date cannot be considered as starting point for computing limitation, for the reason that, said claim of defendants came to their knowledge only after filing of written statement in

OS.07/1996 on 16-01-1997 as per the signature of the Advocate concerned, who

signed on behalf of defendants in written statement before filing into court. It is further argued that, U/S 65 of Limitation Act, since present suit is filed not only for declaration of title, but also for grant of permanent injunction and recovery of possession, period of 12 years from 16-01-1997 has to be considered and hence this suit is filed within limitation.

13. To prove their contentions, plaintiffs also relied on Judgment of our Hon’ble

Apex Court in between Union of India And Ors Vs. West Coast Paper Mills Ltd. & 28

Another where in it was held that, In relation to a civil dispute, an appeal is considered to be a continuation of the suit and a decree becomes executable only when the same is finally disposed off by the Court of Appeal. Respondents were thus, entitled to get the period during which the writ petition pending is excluded for computing the period of limitation. In that view of the matter, the civil suit was filed within the prescribed period of limitation.

14. Per contra, learned Counsel for defendants, relied on Judgments between

Khatri Hotels Private Limited and Another Vs. Union of India and Another, reported in (2011) 9 SCC 126 and argued that, the suit is barred by limitation as judgment passed in OS.No.07/1996 was confirmed in first and second appeals. In said judgments possession of defendants under Ex.B.8 and Ex.B.121, since 27-02- 1991 was considered. Ex.A.6, Ex.A.7, Ex.A.8, Ex.A.9 and Ex.A.10 are Judgment and Decree passed in OS.07/1996 on the file of Senior Civil Judge, Penukonda and AS.01/2003, on the file of II Addl. District Judge, Hindupur and

SA.No.822/2006 on the file of Hon’ble High Court, supports case of defendants in

respect of their possession and enjoyment of Firm, as well as property.

15. It is also argued on behalf of defendant that, plaintiff No.1 in OS.7/1996 examined himself as Pw1 and his evidence is marked as Ex.A.3. In his chief examination itself, he categorically deposed that, the defendants were trying to sell suit schedule properties, representing themselves as owners in the year 1991.

Therefore, plaintiffs contended that, father of present Plaintiff No.1 and others cancelled said GPA that was executed in the name of defendants therein. But, neither in this case, nor in OS.7/1996, said GPA that was alleged to have executed is not marked, so also, the GPA that was cancelled to know true facts of the case.

However, in present suit as well as in earlier suit, plaintiffs marked a paper publication without objection and there is a reference to GPA cancellation in it.

29

Ex.A.4 and Ex.A.5 are said paper notice in this suit. No reply paper publication was given by the defendants denying the claim of plaintiffs, nor any letter was addressed to the plaintiffs, denying their claim within time, to let the plaintiffs know the claim of defendants at the earliest point of time.

16. At this juncture, the admission of DW.1 is that Jethalal Haridas [father of 1st plaintiff], Vikram Jethalal Joisher (1st plaintiff) and Prakash Jethalal Joisher (no more), put him in possession of schedule mentioned properties is relevant for consideration. He also deposed that a document was filed by him i.e., DW.1 into court to support his case that said three persons put him in possession of suit schedule lands and it is Ex.B.8 & Ex.B.121, which are marked subject to proof and relevancy. He relied on the Minutes of alleged family settlements marked as

Ex.B.121 and Ex.B.8, to show that, the defendants were put in possession of the property and also that basing on Ex.B.8 & B.121 said three partners i.e., 1st plaintiff, his father and late brother resigned from partnership under Ex.B.9,

Ex.B.10 and Ex.B.11. But when signatures of plaintiff No.1 as well as his father and brother were denied by them in Ex.B.9, Ex.B.10 and Ex.B.11, no steps are taken by the defendants to prove their genuineness, by sending to expert for opinion.

Admittedly, in this case in Ex.B.8 and Ex.B.121 does not contain signatures of either plaintiffs or father of plaintiffs No.1 and 2, i.e., Jethalal Haridas Joisher. The same is also admitted by DW.1 in his cross-examination.

17. It is a settled preposition of law that, for transfer of properties, registration is a must. Therefore, when the basis for claim of defendants is based on inadmissible documents and the same has come to notice of plaintiffs only after filing their written statement under Ex.B.160 as per plaintiffs, the suit is very much within limitation. Plaintiffs cannot expect to file suit for declaration without knowing, under 30 which authority, defendants are asserting their title. In fact, DW.2 in OS.7/1996, admitted that, land revenue was paid in the name of plaintiff / PW.1 in that suit even during 2001, when he gave evidence also shows that, even ten years after their alleged claim as contended by defendants, they are recognizing ownership of

PW.1 to plaint schedule property by paying tax, as they pleaded and deposed that they were paying tax to schedule mentioned property since 1991, when they alleged to have taken possession under Ex.B8 and Ex.B121.

18. Another important admission of the defendants through Dw2 under Ex.B4 is that, during 1996, plaintiffs stayed in Petakunta for 4 or 5 days. When it is pleaded in written statement that the plaintiffs never visited plaint schedule after 1991, this admission is contra to their contention. A person may say so many things to others orally, but as defendants did not make any effort to mutate entries in revenue records and further when plaintiffs entered the Firm on 1996 without any resistance, case of plaintiffs that, the basis for claim of defendants is on inadmissible documents came to their notice after filing of Ex.B.160 is taken as starting point for computation of limitation.

19. Another important point in this case is that, though several adangals are filed and marked as Ex.B.133 to 137 for faslie 1416 there is no reference to Ex.B.8 or Ex.B.121. As per written statement of defendants filed in OS.7/1996, marked as

Ex.B.160, in Para-4, it is mentioned that, the defendants asserted their title for partnership firm dated 9-8-1991 and they addressed a letter to Superintendent of

Police, Ananthapur on 20-04-1996 asserting their rights in the Firm from 9-8-1991 and copies were also sent to the plaintiffs. But, there is no proof that it was served on the plaintiffs. Even if it is taken for consideration, this go to show that, for the first time, defendants addressed a letter to the plaintiffs on 20-4-1996 asserting 31 their title to the firm in plaint schedule property from 9-8-1991, it is contra to their other contention that, since 27-02-1991 they got the property of the firm towards their share in division of joint family properties to the knowledge of plaintiffs. It is also surprising to note that, none of the joint family members is examined in this suit in support of case of defendants to support their contention that till 27-02-1991, there was only joint family property or business.

20. In support of their case, defendants relied on Judgments between 1) Khatri

Hotels Private Limited and Another Vs. Union of India and Another, reported in (2011) 9 SCC 126, 2) Ishwar Ganapati Kyasti and Others reported in (2000) 6

Kant LJ 544, 3) Sukhbiri Devi and Others Vs. Union of India and Ors. Reported in 2009 SCC OnLine Del. 2571.

21. At this juncture, it is relevant to consider the admission made by PW.1 in

OS.7/1996, that he addressed a letter to defendants in the year 1993 or 1994

asking the defendants to redeliver possession of suit properties to them, for which there was no reply. It is true that right of party shall extinguish over the property, if a party does not exercise his right within the period of limitation as held in between

Maqbool Fatma (Smt) and Others Vs. Deputy Custodian General, Evacuee

Property and Another reported in (1996) 5 SCC 493 and in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others reported in (2019) 8 SCC 729. But, defendants alleged that, for the first time they have marked a copy addressed a SP,

Anantapuramu regarding asserting their title vide letter dt.20-04-996, even if is taken, the suit is within limitation. It is not the case of defendants that, when plaintiffs addressed a letter cancelling GPA and also demanded for re-delivery of property and that said letters were also received by them under Ex.A5 in earlier 32 suit, they have sent a reply. Unless reply was given asserting the claim of defendants, limitation does not arise in this case, for the reason the defendants admitted that the plaintiffs have inducted them into possession of this property.

Since in this case, this suit is filed for not only declaration of title, but also for recovery of possession, Article 65 is relevant for consideration and not Article 58, which is relevant only when the suit is filed for declaration. Viewed from any angle starting point for limitation of 12 years is considered from 16-01-1997 when defendants filed written statement under Ex.B.160 & hence the suit is within limitation.

22. Issue No.4 and Additional Issue :-

Sec. 11 C.P.C deals with Res-judicata and the plea of Res-judicata is a restraint on the rights of plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive Res-judicata.

23. Under Res-judicata no Court shall try a suit or issue, in which the mater is directly and substantially in issue has been directly and substantially in issue, in former suit between the same parties or between parties under whom they or any of them claim, litigating under same title in a Court competent to try subsequent suit or the suit in which such issue has been substantially raised and has been heard and finally decided by the Court. Therefore, to attract provisions of Sec.11

C.P.C, parties should have litigated under same title in earlier suit before a competent Court including territorial and pecuniary jurisdiction as discussed by our Hon’ble Apex Court in Subhash Mahadevasa Habib Vs. Nemasa Ambasa

Dharmadas”.

33

24. The object of Order II Rule 2 CPC is to ensure that, no defendant is sued and vexed twice in regard to same cause of action and also to prevent a plaintiff from splitting of claims and remedies based on the same cause of action.

25. Under Order II Rule 2 C.P.C, where the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, he shall not afterwards sue, in respect of the portion so omitted or relinquished. A person entitled to more than one relief, in respect of same cause of action, may sue for all or any such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted.

26. A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a fight to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to actual infringement of the right sued on, but includes all the material facts on which it is founded. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed by the plaintiff.

27. By relying on the principles as referred above, available evidence is discussed. Learned Advocate for defendants relied on Judgments between

N.V.Srinivasa Murthy and Others Vs. Mariyamma ( Dead) by Proposed LRs and

Others, reported n (2005) 5 SCC 548, and argued that “permission must be sought from Court for exclusion of time and condoning delay in filing”.

34

28. He also argued that, as per admission of father of plaintiff No.1 in

OS.07/1996, that there was imminent threat to the title and rights of the plaintiffs

from the defendants, in 1991 itself & hence, non filing of suit for declaration of title at the earliest point of time clearly shows that, with knowledge he relinquished his claim to sue for declaration of title in that suit. He also relied on Judgment between

Ananthula Sudhakar Vs. P.Buchi Reddy (Dead) By LRs. And Others, reported in (2008) 4 SCC 594, and argued that when there is a cloud over the title, a suit for injunction is not maintainable and only a declaration suit shall be sought for and if it is omitted as per Order II Rule 2 C.P.C, the plaintiffs now cannot file this suit and hence present suit is not maintainable.

29. Defendants also relied on Judgments between Sulochana Amma Vs.

Narayana Nair, reported in (1994) 2 SCC 14, Annaimuthu Thevar (Dead) by LRs.

Vs. Alagammal and Others reported in (2005) 6 SCC 202, Garlapati Venkateswarlu (dead) per LRs. and Others Vs. Divi Appalacharyulu, reported in 2014 (2) ALT 248 and Sardar Balawanth Singh Vs. Sardar Bhagath Singh, reported in 2016 (1)

ALD 67 and argued that, the findings of OS.7/1996 that the plaintiffs failed to prove their title over suit schedule property, clearly go to show that it operates as Res- judicata against the claim of plaintiffs in this suit that is filed for declaration of title at a belated time.

30. At this juncture, learned Advocate for plaintiffs, relied on Judgments between,

Bengal Water proof Limited Vs. Bombay Waterproof Manufacturing Company and another reported in AIR 1997 SC 1398 and Kunjan Nair Sivaraman Nair Vs.

Narayanan Nair and others, reported in (2004) 3 SCC 277 and argued that "In order to succeed the plea of bar under Order II Rule 2, the defendant must make out that second suit was filed in respect of same cause of action, on which 35 previous suit was filed and in respect of that cause of action, the plaintiff was entitled to more than one relief and the plaintiff omitted to sue, for the relief without leave of the Court and filed second suit".

31. In Union of India and Others Vs. Nallapaneni Lakshmi Kumar, reported in (2011) 1 ALD 329, it was observed that, "it is necessary to examine pleadings of trial Court in former suit, to decide the issue under Order II Rule 2 CPC".

32. In S.Nazeer Ahmed Vs. State Bank of Mysore and Others, reported in (2007) 11 SCC 75, it was held that "to invoke the rule of Order II Rule 2 CPC, defendant has to produce copy of plaint in earlier suit, to show cause of action".

33. OS.7/1996 was filed by the plaintiffs in respect of management of Firm “Banushali Sisal Fibre Industry and Plantation on the file of Senior Civil Judge

Court at Penukonda. Plaintiffs signed on plaint as partners of the Firm contending that defendants are trying to interfere with the support of unruly elements, with the management of the Firm and proclaiming that they will forcibly interfere with physical possession and enjoyment of their property and hence suit was filed for grant of permanent injunction to restrain the defendants, their men, et. al., from interfering in any manner with the administration of the Firm. Whereas, present suit is filed for declaration of title basing on Ex.A.1.

34. It is also argued on behalf of the plaintiffs that, in earlier there was no necessity for prayer of declaration of title as it was in respect of management of the firm. In addition, no issue relating to title was framed in said suit. When no Court fee was paid, no issue was framed, it will not restrict the plaintiffs from filing this suit. In addition Senior Civil Judge cannot decide title of the property, as he has no 36 pecuniary jurisdiction to try the suit or rather it is not competent Court to try said suit for declaration of title and hence the findings of Senior Civil Judge on title is without jurisdiction and is not binding on the plaintiffs.

35. In addition in Judgment between In Kasarapu Sujatha and another Vs.

Veera Velli Veera Somaiah, reported in (2008) 3 ALD 525, it was observed that, "when earlier suit was filed for perpetual injunction only, subsequent suit for declaration of title, injunction and so also for recovery is filed, the suit is very much maintainable". Plaintiffs by relying on said judgment contended that earlier suit was dismissed on technical grounds and so also the cause of action is different in both the suits. Hence, this suit is not barred under Order II Rule 2 of CPC".

36. In Judgment of Hon'ble Apex Court, in Ananthula Sudhakar Vs. P.Buchi

Reddy (Dead) By Lrs. And Others, reported in (2008) 4 SCC 594, it was also discussed about "when title will be directly and substantially in issue and also when suit for perpetual injunction alone can be filed and that when the question of title does not arise or would arise only incidentally or collaterally, subsequent suit is not barred". In addition, when in earlier suit a passing reference regarding title is given, basing on inadmissible documents, though it is an injunction suit and that too without framing any issue, without giving opportunity to adduce evidence and without paying court fee by court without pecuniary jurisdiction, it is not binding on them.

37. In civil cases issues form basis for adducing evidence. In Makhan Lal

Vangla Vs. Manas Bhuria, Hon’ble Apex Court observed that, it is obligation of the court to read plaint, written statement and then to determine issues with the assistance of learned counsels for parties. Issues shall be framed and recorded, on which decision of the case shall depend. An omission to frame proper issue may 37 be a ground for remanding the case for retrial, subject to prejudice having been shown to have resulted by the omission. The object of an issue is to tie down evidence and arguments and decision to a particular question. Therefore, finding of earlier suit will not debar the plaintiffs from filing this suit, which is filed not only for declaration of title, but also for recovery, for which limitation is 12 years under article 65 of Limitation Act.

38. In Jamia Masjid Vs. K.V.Rudrappa (since dead) by L.Rs. and others, reported in AIR 2021 SC 4523, Hon'ble Apex Court discussed as to "whether an issue was conclusively decided in previous suit and whether Doctrine of Res- judicata is applicable or not". In earlier suit, by relying of Land Reforms Tribunals

Orders and believing the unregistered and inadmissible documents, the suit filed for grant of permanent injunction by plaintiffs regarding administration of the Firm against defendants was dismissed, though defendants admitted that, they were handed over management of the firm by the plaintiffs. In addition said suit relates to management of the Firm.

39. Whereas, present suit is filed in respect of declaration of title of the plaintiffs as per 1949 registered sale deed, which is admitted by the defendants.

Present suit is filed only by the plaintiffs who are legal heirs of Jethalal Haridas

Joisher as he purchased suit schedule property under Ex.A.1 during 1949. In earlier suit said Jethalal Haridas Joisher and other partners of the Firm "Bhanushali

Sisal Fibre Industry and Plantation signed on the plaint claiming for relief of grant of permanent injunction to restrain the defendants, their men at al., from interfering with the management of the Firm.

38

40. Therefore, case of the plaintiffs that they got knowledge of the claim of defendants after filing written statement in that suit regarding their claim which is based on inadmissible documents and further as earlier suit was only in respect of management of the Firm & dismissed on technical grounds, now they have sought for declaration of title in present suit, is relevant for consideration. This suit is filed for declaring title on coming to know that the defendants who filed the written statement in OS.No.7/1996, denied present plaintiffs title by producing Ex.B.8 to

Ex.B.11, Ex.B.121, which are inadmissible in evidence and since the same are considered in earlier suit i.e., OS No.7/96 and made an passing observation about defendant’s right to schedule mentioned property and against the case of plaintiffs.

When inadmissible documents are relied for negativing the claim of plaintiffs, they are left with no option, except filing of this suit.

41. As per the written statement of the defendants, filed in present suit and earlier suit also, they admitted about execution of sale deed in the name of Jethalal

Haridas Joisher during 1949 marked as Ex.A1. When defendants admitted that,

Bhanushali Sisal Fibre Industry and Plantation, at Petakunta was given to them by the plaintiffs, it indirectly is an admission of defendants about claim of the plaintiff prior to the regarding their administration of Bhanushali Sisal Fibre Industry and

Plantation, before defendants took custody of the firm, though defendants gave a different date, the same cannot be considered and hence to prove their title and for recovery of possession of the property mentioned in schedule where Bhanushali

Sisal Fibre Industry and Plantation, is in existence, plaintiffs filed this suit.

42. As earlier suit was only for restraining the defendants from interfering with administering the firm and when it was rejected, plaintiffs are left with no option and filed this suit not only for declaration of their title, but also for recovery of 39 possession and other reliefs before competent civil court with Territorial and pecuniary jurisdiction. In addition, regarding schedule, in earlier suit nearly ten items were shown whereas in present suit, four items are shown as plaint schedule properties as mentioned in Ex.A1, for which declaration is sought for. Therefore, schedules are also also different in both suits.

43. It is a settled principle of Law that the parties cannot agitate twice for same cause of action as discussed in above referred judgments. But when basing on inadmissible documents, defendants claim is believed by a court in a suit filed for grant of permanent injunction, plaintiffs are left with no option except filing this suit not only for declaration of title, but also for recovery of property.

44. Therefore, to conclude since schedules are different, relief claimed is different, jurisdiction of courts is also different, payment of court fee is different and so also cause of action in both suits, present suit is maintainable and hence both issues are answered against the defendants. Suit is very much maintainable.

45. ISSUE No.1:

Admitted facts are that, one Velji Narshi, who is ancestor of both plaintiffs and defendants was a business man. Their family is a business family. He acquired properties for business purpose and established various Firms in various parts of

India. As part of developing business, his legal heirs also acquired vast extent of land and established Firms including in Andhra Pradesh.

40

GENEOLOGY OF VELGINARSHI

VELGINARSHI

------------------------------------------------------------------------ -

Haridas Premji Velji Chaganlal

VelJi .,x Jashoda Bai ------------------

Jethalal Vasandhalal Ashok Sirish Ajit Kalki Haridas Haridas Premji Premji Premji Premji Joisher Joisher

Vikram Prakash Jyothi Pratap Mukul Kethan Jamna Devayani Jethalal Jethalal P2 Chagan Chagan Chagan Chagan Chagan Joisher Joisher Lal Lal Lal Lal Lal P1 Joisher Joisher D.4 D.1 D.2

X DEVAYANI

P3.

Premal Poulomi Deval Pratap Pratap Pratap Joisher Joisher/D.3 Joisher/D.5 D.6

Riddhi Prakash Mihir Joisher P.5 P.4

46. Jethalal Haridas Joisher, is one of descendants of Velji Narshi. During 1949 suit schedule property was purchased in his name. Contention of the plaintiffs is that, said property was purchased in his name, because he was also an earning member and with his income he purchased the property under Ex.A1.

47. Per contra, learned Advocate for defendants argued that, during 1949 said

Jethalal Haridar Joisher was aged about 20 years and was not an earning member 41 and hence purchasing said property with his income does not arise. And that, said property was purchased with joint family income in his name. But a perusal of

Ex.A.1 does not reveal that, it was purchased with joint family income in his name.

No documentary proof is filed by the defendants in support of their contention.

48. At this juncture, learned Advocate for plaintiffs relied on Judgments between;

1) In Ms. Rukhmabai Vs. Lala Laxminarayana and others, reported in AIR 1960 SC 335, wherein the Hon’ble Supreme Court held that; “There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds".

“But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property, to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that said property has been acquired without any assistance from joint family property”.

2) Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Eravagowda Sankh, reported in 1969 (1) SCC 386, wherein our Hon’ble Supreme Court held that; “There is no presumption that, a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either 'admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property”.

42 “Hindu law upon this aspect of the case is well settled.' Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that, any item of property was joint to establish the fact”.

3) In Kasaram Jayamma and Another Vs. Jajala Lakshmamma and others, reported in 2008 (1) APLJ 164 (HC), wherein our Hon’ble High Court held that; “law is well-settled that a property cannot be presumed to be the joint family property merely because of existence of joint family. The burden of proving the property to be joint family property always lies on the person who so asserts. However, once he proves that the family possessed sufficient nucleus with the aid of which the suit properties could be acquired, then a presumption has to be drawn that the properties are joint and consequently, the burden of proof shifts to the person claiming them to be self- acquired”.

49. In addition when property under Ex.A.1 was purchased, there was already one Industry in it. M/s Chamanlal Bai Mehata and others sold the property to Jitalal

Haridas Joisher. After purchasing the property from time to time, there was change in the constitution of membership of partners and same is evident from the evidence of plaintiffs. Ex.B145 to Ex.B150 relate to change of constitution of different firms membership by legal heirs of Velji Narshi.

50. Another important point is, information was given to the Registrar of Firms concerned whenever there was change of membership of the Firms. Firm of the plaintiffs was also registered. Case of plaintiffs is that, as part of development of their business, since they are residing at Mumbai, it is difficult for them to come down to Ananthapuram to look after the business and therefore, they have appointed the defendants under G.P.A during 1989 and since then being their authorized agents, defendants were looking after the affairs of Petakunta property 43 that is in dispute now.

51. Per contra, case of defendants is that, they got the property under Ex.8 and

Ex.B121 which are minutes of family settlement dt.27-02-1991 and 14-04-1991.

Ex.B4 is evidence of one Bhanushali, who was examined as Dw2 in OS.7/1996 on the file of Senior Civil Judge’s Court, Penukonda. He reiterated the case of defendants and deposed that, plaint schedule property fell to the share of defendants under Ex.B.8 and Ex.B.121 dated 27-02-1991 and dt.14-04-1991 and since then defendants have been in possession and enjoyment of the property and that he was appointed by the defendants as Manager of the firm to administer the property.

52. At this juncture, admission made by DW.1 in this case during his cross- examination on 23-12-2021 is relevant to look into. It shows that, he mentioned in his written statement that, he has been in possession of the property. Jethalal

Haridas, Vikram Jethalal Joisher [plaintiff] and Prakash Jethalal Joisher put him in possession of suit schedule properties. He also filed document to show that, said three persons put him into possession of suit schedule lands. To prove the same, he is relying on minutes of understandings marked as Ex.B.8 and Ex.B.121.

53. However, a perusal of Ex.B.8 and Ex.B.121, do not show signature of

Jethalal Haridas Joisher, who is owner of suit schedule property under Ex.A1 and the same is admitted by DW.1. Therefore, it is clear that, as per DW1’s admission in this suit, it was Jethalal Haridas, Vikram Jethalal Joisher [plaintiff] and Prakash

Jethalal Joisher, who put the defendants into possession of the property. And it is also a fact that, Ex.B.8 as well as Ex.B.121, do not contain signatures of atleast one of the three persons, whose names are referred above. In addition, both the 44 documents were not registered. On the other hand they show signature of one notary, who signed on 12-08-1991. One advocate from Hon’ble High Court of

Bombay also attested, but no date is mentioned. If really both these documents were executed on the dates mentioned above is to be believed, then either their execution on the dates mentioned in those documents is wrong or that they were not executed in the presence of notary, as he attested at a later point of time and hence said documents are not relevant to believe case of the defendants regarding their execution on the date as mentioned by them.

54. Learned Advocate for plaintiffs argued that Ex.B.8, Ex.B.121, do not reflect either schedule or extent and so also no particulars regarding identity of the property. Even otherwise, when a property worth more than one hundred rupees, is transferred in the name of a person, it has to be compulsorily registered. To come to conclusion that under Ex.B.8 or Ex.B.121, the property fell to the share of defendants, there are no identity particulars of the property. Similarly, Ex.B.9 to

Ex.B.11 on which defendants are relying to prove their contention that the plaintiffs resigned from Bhanushali Sisal Fibre Industry, as per understanding under

Ex.B.82, Ex.B.121, they have made no effort to prove them. In addition, even when plaintiffs denied their signatures on them, defendants have not taken any steps to prove them. When said documents are disputed and their contents also does not reveal reference to understandings alleged to have reached under Ex.B.8 and

Ex.B.121, they are of no use to prove the case of defendants, as held in Judgment between;

55. A.C.Lakshmipathi Vs. A.M.Chakrapani, reported in AIR 2001 Madrass, wherein Hon’ble Madrass High Court held that; “ A family arrangement can be made orally. If made orally, there being no document, no question of registration arise. If the family 45 arrangement is reduced to writing and it purports to create declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the

Stamp Act and Registration Act”.

56. Further contention of defendants is that, they have not filed any partnership deed among three brothers of Haridas Velji, Premji Velji and Chaganlal Velji, though they stated that, they got the document and can produce. DW.1 admitted that, he has no document to show that three brothers transferred joint family property to M/s Bhanushali Sisal Fibre Industry and Plantation Firm. Though, he contended in his written statement that, he is in possession and enjoyment of the properties as Jethalal Haridas, Vikram Jethalal Joishier and Prakash Jethalal

Joisher, put him into possession of the properties on 27-02-1991, he is relying only on Ex.B.8 and Ex.B.121. But in both the documents, signatures of Jethalal Haridas

Joisher & others is not there. Similarly, suit lands were also not mentioned in those documents. Though, he stated that, the transfer under Ex.B.8 was reflected in adangals, he has not filed said adangals and that are marked on his behalf, do not reflect the same. So far, he has not challenged Ex.A.1 Sale deed, before any

Court. Similarly, DW.1 also admitted that, the National Highway Authority of India, addressed a notice under Ex.A3 to 1st plaintiff, when it acquired part of suit schedule property, for laying National High Way Road from Bangalore -

Hyderabad, under Ex.X.51 during 2007. Award was also passed in the name of

Jethalal Haridas Joisher, with some conditions, as per evidence of DW.1, but he has not filed any suit for partition and separate possession of joint family properties against Jethalal Haridas Joisher or any other three branches. DW.1 got immovable properties in his name at Kutch District, Gujarath State. He got record of transfer of suit schedule properties in his name and in the name of Bhanushali Sissal Fibre 46

Industry and Plantation, but no such document is filed by him.

57. During cross-examination of DW.2, it is elicited that, he challenged Ex.A.26 to Ex.A.35, which are adangals and house demand tax receipts, demand notices,

before Divisional Panchayat Officer and lodged a Criminal Complaint against

plaintiffs, but he does not know whether a criminal complaint was dismissed by

Judicial First Class Magistrate, Penukonda. According to DW.1, plaintiff inducted him into possession, whereas according to DW.2, he got possession on behalf of

DW.1, his brothers and sisters. In fact , DW.2 admitted that his father’s name was not shown in partnership Firm. DW.2 in OS.7/1996 as per Ex.B4 in his evidence deposed that, he was handed over the custody of Firm by the plaintiffs. According to Pw1 in OS.7/1996, original industry that was registered under Factories Act is still being carried out and defendants have not filed registration of partnership Firm, in their names. Therefore, regarding manner of acquiring so called possession by defendants, there is no corroboration.

58. In fact, DW.1 stated in his chief examination that, original firm Bhanushali

Sissal Fibre Industry and Plantation, became extinct on 27-02-1991, for which no document is filed. A Writ Petition was filed after filing OS.19/2007 against the orders of Revenue Divisional Officer, regarding dispute about transferring the name of Jethalal Haridas Joisher, in respect of suit schedule properties, but present status is status-quo order is pending. DW.2 also admitted that APIIC Authority also acquired 1016 acres of land. Surprisingly, he deposed he does not know in whose name National Highway Authority and APIIC gave Gazette publication for acquiring the land. If the defendants are owners, they should definitely have fought for compensation, which they have not done.

47

59. Ex.B.83, which was issued by Government of India, Department of

Statistics Annual Survey of Industry 1997-98, shows that "Bhanushali Sisal Fibre

Industry and Plantation at Petakunta" has only three men workers i.e., one women worker, one Supervisor and Staff. It was submitted by DW.2 /Bhanushali in

OS.7/1996,/Ex.B5 and his address was given, as the address for contact of said

firm.

60. Ex.B.118 is a Letter addressed by "Bhanushali Sisal Fiber Industry and

Plantation, to Inspector of Factories on 12-12-1994. It was addressed by Prathap

C.Joisher, to the Inspector of Factories, Ananthapuramu, Andhra Pradesh, requesting for cancellation of Factory Licence No.45 and Registration No.25045, stating that, the Factory licence was expiring on 31-12-1994 and they have paid challan for Rs.1200/- for renewal vide Sub-Treasury Challan Nos. 37 dated 03.12.1994, but since for the last three years or more, the power connection of factory got disconnected on account of irregular supplies and since the workers strength was also gone down to, two or three members and as the Industry is running in loss and work came to a stand still, requested for cancellation of licence and therefore, the request for treating renewal application as cancelled and to arrange refund of amount of Rs.1200/-. Even in written statement it was admitted that the machinery got damaged due to non use.

61. Therefore, Ex.B.83 and Ex.B.118 go to show that "Bhanushali Sisal Fibre

Industry and Plantation" was not at all functioning as contended by the defendants and hence the finding of Court in OS.07/1996, and contention of defendants that, they are running the firm since 1991 is also not believable.

48

62. On the other hand plaintiffs relied on following Judgments 1) Ravinder

Kaur Grewal and Others Vs. Manjitkaur and others reported in 2019 (8) SCC 729 and 2) Narasamma & Others Vs. A.Krishnappa, reported in (2020) 15 SCC 218,

Hon’ble Apex Court wherein it was held that; “claim of independent title and

adverse possession simultaneously and from the same date amounts to taking contradictory pleas and when plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property and therefore the plea of title and adverse possession are mutually inconsistent and that later does not operate until the former is renounced”.

63. Both sides filed Judgments, relating to adverse possession, but in this case the defendants argued that, they are not claiming title by way of adverse possession, but they are claiming the title to suit schedule property as owners under Ex.B.8 and Ex.B.121, which are inadmissible in evidence as discussed in following paras.

64. To claim any property, registration of a document, where the property worth is more than 100/- rupees, has to be in the form of registered document. At this juncture, learned advocate for the plaintiffs relied on Judgments of our Hon’ble

Apex Court between K.Arumuga Velaiah Vs. P.R.Rmasamy and Ors. Decided on 27.01.2022 in Civil Appeal No. 2564 of 2012, wherein it was observed that; “When a family arrangement is reduced into a document, it has to be registered, though, there is no necessity for registration, if it is oral family arrangement”.

65. In present case, defendants are relying not only on Ex.B.8 and Ex.B.121, but also on Ex.B.9 to Ex.B.11, Ex.B.151 to Ex.B.156 and contended that, as per understandings under Ex.B.8 & E.B.121 other members of joint family voluntarily 49 retired from various Firms, in various parts of India. A perusal of those documents show the date of execution as 27-02-1991, but attested by notary on 12-08-1919.

Hence it is clear that they were not executed in the presence of notary. In addition none of the above documents show either schedule or identity of the properties and other details. Further, they do not show that, in pursuance of family arrangement under Ex.B8 or Ex.B121 they are resigning. Hence they are not binding on the plaintiffs.

66. At this juncture it is relevant to consider the legal position regarding transfer of property. Hon’ble Apex Court, and so also various Hon’ble High Courts held that, for transfer of property, registration is a must”. To prove said contentions, plaintiffs relied on following Judgments between;-

i) Vimal Chand Ghevarchand Jain Vs. Rmakant Eknath Jadoo reported in 2009 (5) SCC 713, wherein our Hon’ble Apex Court held that; “a registered deed of sale carries presumption that the transaction was a genuine one. If execution of sale deed is proved, onus is on defendant to prove that, the deed was not executed and it was a sham transaction”.

ii) Janardhan Prasad Vs. Ramdas, reported in 2007 (15) SCC 174, our

Hon’ble Apex Court held that, under section 3 of Transfer of Property Act, 1882 a

registered sale deed shows possession and would constitute notice to all.

iii) Abdul Rahim Vs. Sk.Abdul Zabar and others reported in 2009 (6) SCC 160, wherein our Hon’ble Apex Court held that, a registered document, carries with it the presumption of its validity. Hence, a party challenging the genuineness of a registered gift deed must show that the transaction was not valid.

iv) Suraj Lamps Vs. State of M.P., reported in 2016 (1) SCC 767, our

Hon’ble Apex Court held that; “Immovable property can be transferred, conveyed

50 only by deed of conveyance (sale deed) duly stamped and registered as required under law. Explaining the nature and scope of an agreement for sale, power of attorney and living will, held, GPA sales or SA/ GPA/ living will transfer neither convey any title nor do they amount to transfer of, or create interest in, immovable property except to the limited extent of Sec.53-A”.

v) Satyapal Anand Vs. State of M.P. reported in 2016 (1) SCC 767, our

Hon’ble Apex Court held that to recall a registered document that was properly

presented for registration, for reopening question after registration/ for cancellation of registered of document after its registration, competent authority is civil court alone, and none of the authorities/officers under 1908 Act have power in this regard.

67. In addition to the principles laid down in above Judgments, since in this case, it is admitted by DW.1 during his cross-examination that, his father attested as one of the attestors to Ex.A.1, now the defendants cannot go contra to contents of Ex.A1 and intention of their father who attested on it as a witness.

68.At this juncture it is also relevant to look at Judgment between Anathula

Sudhakar Vs. P.Buchi Reddy, reported in 2008 (4) SCC 594, wherein it was also observed that; “When original owner himself attested the sale deed, executed by plaintiffs vendor, now he is estopped from claiming different view”.

69.It is case of defendants that, since during cross-examination of PW.1, in

OS.7/1996 under Ex.B3, Jethalal Haridas Joisher admitted that, he has knowledge

about defendants setting up a new Firm in 1991, it is clear that, father of first and second plaintiffs has knowledge during 1991 itself about defendants setting up separate Firm and taking possession of the property. But where it was set up is not 51 elicited. It is also argued that, since no steps are taken for recovery by the plaintiff’s father, it is deemed that as he along with his two sons resigned under

Ex.B9 to Ex.B11, they have not evinced any interest for recovery of property.

70. In fact defendants in written statement clearly pleaded that, after 1991, plaintiffs never visited their firm. But, in the evidence of DW.2 under Ex.B.4, it is elicited that, during 1996 plaintiffs visited the Firm, at Petakunta and resided there for 4 or 5 days, goes to show that, plaintiffs were visiting the Firm, even during 1996 also. If really plaintiffs have no interest or given up their claim, whey will they visit and stay there for 4 or 5 days during 1996 when OS.7/1996 was filed against the defendants is not explained by defendants. As per Ex.B4, DW.2 further deposed that, revenue records and cultivation accounts are in the name of PW.1 even during 2001 when he gave evidence. Though he deposed that he does not know whether plaintiffs paid land revenue, but he admitted that, land revenue was also paid in the name of 1st plaintiff. If really defendants are paying land revenue and they are owners under Ex.B8 dt.27-02-1991, what prevented them from mutating their names in respect of suit schedule property is not explained and so also if really they paid tax is to be considered, as to why they paid in the name of plaintiffs is not explained. Said DW.2, gave evidence on 11-10-2001, that means almost for ten years after alleged claim of ownership by defendants under Ex.B8 and Ex.B121, defendants did not think of mutating their names in revenue records itself is one of the reasons to disbelieve version of defendants regarding transfer of property in their favour under Ex.B8 and Ex.B121.

71. Revenue records also show only the name of Jethalal Haridas Joisher, who was original owner of property. It is also on record that, cases were registered at a 52 latter point of time as per records available, when an attempt to mutate revenue records in the name of defendants was made, for which original owner objected and that now it is before Hon’ble High Court and that status-quo orders are in force.

72. However, it is a settled preposition of law that, revenue entries do not confer or extinguish any title. But a presumption as to genuineness of entries can be drawn unless contra is proved as held in a judgment between Pratap Singh (dead) through LR and others vs. Shivram (dead) through LR reported in (2020) 11

SCC 242 relied on by learned Advocate for plaintiffs.

73. Though, learned advocate for defendants contended that, the property under Ex.A.1 was purchased in the name of Jethalal Haridas Joisher, with joint family income, there is no documentary proof to prove the same. Even though, there is existence of joint family, there is no necessity that joint family property exists as held in a Judgment between Srinivasa Krishnarao Kango Vs. Narayana

Devji Kango and Others, reported in 1954 AIR 379, wherein it was held that, “when a person pleads that a particular property was purchased with joint family income, it is for them to prove about the allegations of purchasing the property with joint family income”.

74. Therefore, since DW1 in this suit admitted that Jethalal Haridas Joisher, his two sons put him in possession of property, it is concluded that, plaintiffs put the defendants in possession of the property and hence their status is only as the agents of plaintiffs and that an Agent cannot claim ownership, as that of defendants herein.

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75. In fact, at one stage, the defendants are stating that, the plaintiffs put them in possession and at another stage, under family settlement they got this property.

In Judgment between A.Shanmugam appellant Vs. Ariya Kshatriya Rajakula

Vamshamedalaya reported in 2012 (6) SCC 430, it was held that Permissive possessee holds property on behalf of owner and acquires no right or interest therein, irrespective of his long stay or occupation. Mere production of ration card or house tax receipts, would not establish his claim or adverse possession”.

76. On the other hand, plaintiffs also relied on following Judgments i.e., 1)

Ravinder Kaur Grewal and Others Vs. Manjitkaur and others reported in 2019 (8)

SCC 729 and 2) Narasamma & Others Vs. A.Krishnappa, reported in (2020) 15

SCC 218, Hon’bl Apex Court wherein it was held that; “ claim of independent title and adverse possession simultaneously and from the same date amounts to taking contradictory pleas and when plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property and therefore the plea of title and adverse possession are mutually inconsistent and the later does not operate until the former is renounced”.

77. In present case also since DW.1 admitted that the plaintiffs have put the defendants in possession, though he again claimed that under Ex.B.8, the plaintiffs have put him in possession cannot be considered for the reason that plaintiffs are denying execution of Ex.B.8, Ex.B.121 and further since they not registered, and inadmissible in evidence as discussed above and so also that the signatures of plaintiffs, who are alleged to have put in possession to the defendants, are not available on them.

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78. In addition though the defendants are claiming about establishment of a separate firm by themselves on 8-9-1991 under Ex.B.72, it cannot be considered, since it is not registered as was the practice among the families of Velji Narshi and further, though it was also notarized on 12-08-1991 and hence it is concluded that, the signatures of the parties were not made in the presence of said notary as that of any other documents produced by the defendants that were notarized.

79. Therefore, the argument of defendants that, Section 110 of Evidence Act, 1872 is based on the principle that possession in and of itself may raise a presumption of title and the burden is on the person who wanted to assert his ownership has to prove the same as held in M.Siddiq (Ram Janmabhumi Temple) vs. Suresh Das reported in (2020) 1 SCC. To prove their contention that defendants are owners under Ex.B8 is to be believed by this court, he relied on judgment passed in OS 7/1996 and its first and second appeal marked as Ex.A6 to

A10 respectively. But the relief claimed in earlier suit is totally different from the relief claimed in this suit. That suit is in respect of management of firm before

Senior Civil Judge Court whereas this suit relates to declaration of title before the

court of Additional District Judge.

80. Another important argument made on behalf of defendants is that, under

Ex.A.2, plaint schedule is shown as property of BSFIP firm and hence OS 7/1996 was also dismissed by holding that, the suit as filed by Jitalal Haridas Joshier in individual capacity was not maintainable, when the property belongs to the firm.

81. Learned Advocate for defendants also argued that, there is no separate of property of Jethalal Haridas Joisher as it became property of the Firm U/Sec.14 of

Partnership Act, which reads; 55 “Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business.”

82. To prove his contention, he relied on Judgments between Kallepally

Krishnam Raju vs. Commissioner and IG of Registration Stamps, reported in 2007(2) APLJ, 290, Gannamani Anasuya and others Vs. Parvtini Amarendra

Chowdary reported in (2010) 6 ALD 234 (DB) wherein it was held that, when a property is brought into a firm, it becomes the property of firm and not that of individual.

83. Defendants by relying on a decision between Amarsingh Vs. Union of India, reported in (2011) 7 Supreme Court Cases 69, wherein Hon'ble Apex Court observed that "a person, who files affidavits on oath, cannot deviate from contents of affidavit, argued that, once the property is shown as the property of the firm as per Ex.B2, now plaintiffs cannot go back and say that it is their individual property.

84. Defendants, relied on another judgment between in Roshan Minoo Patel and

Ors. Vs. Union of India and Ors., reported in MANU/AP/0441/2011 and argued that, "the affidavits filed before Land Revenue Tribunals, including Appellate

Tribunal, are binding on the plaintiffs and now they cannot change their stand as held said Judgment".

85. By relying an above Judgments, defendants further argued that, since the property became property of the Firm, when declaration was submitted before

Land Reforms Tribunal, Penukonda, they were submitted on behalf of the Firm 56 under Ex.A.2, which is certified copy of the order of Land Reforms Tribunal dt.24- 03-1976. Therefore, there is no existence of individual property. It is also argued that, when before different forums including Hon’ble High Court same plea is taken and obtained favourable orders for retaining entire property for the firm, now plaintiffs cannot again agitate that it is individual property of late Jethalal Haridas

Joisher.

86. At this juncture, the learned counsel for plaintiffs relied on various

Judgments as discussed below in foregoing paras, wherein it was observed that,

Land Reform Tribunal or Appellate Tribunal are not competent Civil Courts to give a finding about the title and its findings are not binding on the civil courts. The Scope of Land Civil Laws, is very narrow and limited and they cannot adjudicate comprehensive issues of rights relating to title. Hence, the findings of the Land

Reforms Tribunal and Appellate Tribunal, marked as Ex.B.2, Ex.B.73, Ex.B.124,

Ex.B.126, are not binding on this court, where the suit is filed for declaration of title.

87. At this juncture, learned Advocate for the plaintiffs, relied on Judgments between;

i) Kasetti Ampaiah Vs. Pedda Alpuramma and others, reported in1995 SCC

Online AP843, wherein Hon’ble Supreme Court held that; the statement made before Land Reform Authorities in pursuance of the declaration made by an individual is the self-serving statement and it is not in explainable. It appears that in order to avoid the rigors of the Land Reform Act, the declarant made such a declaration”.

ii) In Edla Venkat Raj Reddy Vs. Edla Linga Reddy (died) L.Rs. and others reported in (2000) 5 ALD 654, wherein Hon’ble High Court of Judicature of Andhra

Pradesh at Hyderabad held that; 57 “The admissions made by a party to a proceeding no doubt constitute a strong piece of evidence, but in this case it is pertinent to note that the above said admissions have been made not in the normal course, but under special circumstances in connection with filing a declaration under the A.P. Land Reforms Act. The contention of the learned Counsel for the respondents that in such circumstances admissions are made by parties with view to save the land from being declared excess and being taken over cannot be brushed aside”.

iii) In Dodla Kumaraswamy Reddy Vs. Dodla China Abbayireddy and others, reported in (2002) 1 ALD 662, wherein Hon’ble High Court of Judicature of Andhra Pradesh at Hyderabad held that:- “ “With a view to save assets from the rigours of the Land Reform Act, the appellant and the deceased Tippaiah had made wrong declarations and incorrect statements before the Land Reform authorities under the provisions of the Land Reform Act. Be that as it may, it can be safely concluded that late Thippaiah had made the statement regarding partition of the joint Hindu Family property to serve his purpose or had proceeded upon ignorance of the true position and, therefore, his statement should not be taken into consideration”.

iv) In Bhaskar Rao Vs. K.S.Rama Rao, reported in (2010) 5 ALD 339, wherein Hon’ble High Court of Judicature of Andhra Pradesh at Hyderabad held that:-

The above evidence of the plaintiff, therefore, clearly shows that this suit is filed and claim for partition of A and B schedule properties is made, primarily, on the basis of declaration of defendant under the Act. It was settled as early as in 1936 by the Privy Council in VENKATAPATHI v. VENKATANARASIMHA (AIR 1936 PC 264) wherein also on the basis of the statement made by two brothers conclusion of existence of joint status was sought to be drawn. It was held in Para 15 as under:? It sometimes happens that persons make statements which save their properties or proceed upon ignorance of true possession and it is not their statements but their relation with the estate which should be taken into consideration in determining the issue. The vital factor in a case of this kind is the nature of interest which the members of the family have in the estate.?

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The above decision is followed consistently in India.

It is, therefore, well settled that when parties make statement for the purpose of escaping rigors of ceiling laws or tax laws, that by itself is not decisive and such statements cannot be equated to admissions so as to form basis of a status of a thing. It is on record that defendant did gave a statement in his declaration under the Act that A and B schedule properties are joint family properties but it is also on record that competent authority did not accept the same and finalized the declaration treating A and B schedule properties as individual properties of defendant. The appeal filed by the defendant against the said order also went against him. Thus, notwithstanding the said declaration given by the defendant to escape the rigor of laws of holding under the Act, ultimate order of determination was that A and B schedule properties are individual properties of defendant.

v) K.Satyanarayana and Others Vs. K.Krishna Reddy, in Order dated 03-02-2017 in SA.No.820 of 1999 & CRP No.3765 of 2009:- “ Even coming to the proceedings of the Land Reforms Tribunal, leave about an admission or statement neither confer nor takes away any right and title over the property from any mention, it is also to be seen in the context in which it is made to understand and appreciate in discovery of truth, as it is not the statement, but the relationship that is to be taken into consideration in determining the truth or otherwise of the statement in one proceedings to make use in other proceedings, as it sometimes happens that persons make statements, which serve their purpose for time being or upon ignorance of the true position which is required to be appreciated to decide vide ALLURI VENKATAPATI RAJU vs.

DONTHALURI VENKATA NARASIMHA R MANU/PR/00231936 : AIR 1960 SC 335 @ P.19 relying upon ALLURMANU/PR/00231936 : AIR 1936 PC 264 (Supra). Thus, the Land Reforms Declaration statements in lieu of the factual matrix and ground realities discussed supra cannot have any bearing to create new rights or to take away existing rights therefrom”.

88. And argued that, it is settled proposition of Law that, in a hurry to submit declarations, due to innocence about repercussions of submitting declarations to protect the property, the declarations were made in the names of several persons 59 at relevant time. Therefore, as held in said Judgments, though declaration was submitted on behalf of the firm, the property of the declarants cannot change nature of their acquisition and even though the land is not shown as their individual property in the declearations, later, the claim of claimants basing on their title was allowed. Therefore, the arguments advanced on behalf of learned advocate for defendants that once on oath a statement is made before Land Reforms Tribunal, the plaintiffs cannot go back on their statement cannot considered.

89. It is also case of plaintiffs that the property of Late Jethalal Haridas Joisher was never thrown into the capital of the Firm and hence Sec.14 of Partnership Act, is not applicable to the facts of present case. To prove their plea, they relied on a judgment of our Hon’ble Apex Court between Arjun Kanoji Tankar Vs. Santaram

Kanoji Tankar reported in 1969 (3) SCC 555, wherein it was observed that; “Property belonging to a person, in the absence of an agreement to the contrary, does not, on the person entering into a partnership with others, become the property of the partnership merely because it is used for the business of the partnership. It will become property of the partnership only if there is an agreement express or implied the that the property was, under the agreement of partnership, to be treated as the property of the partnership.

In Lindley on Partnership, 12th Edn., it is stated at p. 365:

“Again, it by no means follows that property used by all the partners for partnership purposes is partnership property. For example, the house and land in and upon which the partnership business is carried on often belongs to one of the partners only, either subject to lease to the firm, or without any lease at all…. If, however, a partner brings such property into the common stock as part of his capital it becomes partnership property, and any increase in its value will belong to the firm.

… the only true method of determining as between the partners themselves what belongs to the firm, and what not, is to ascertain what agreement has been come to upon the subject. But this is by no means always an easy matter.”

We are unable to agree with counsel for the defendant that whenever there is a partnership and the assets which originally belonged to one of the partners are used for the purposes of the partnership, they must be 60 presumed to have become partnership assets. In Miles v. Clarke 1953 1 All ER 779the defendant started the business of a photographer and then admitted the plaintiff — a successful free lance photographer — as a partner. The leasehold premises, furniture and studio equipment belonged to the defendant. It was intended to record the terms of partnership into a formal agreement, but no terms were ever settled, except that the partners were to share the profits equally. On dissolution of the partnership it was held that no terms ought to be implied except such as were essential to business efficacy and that only the consumable items of stock-in-trade were to be regarded as assets of the partnership, and the lease of the property, equipment and personal goodwill were to be treated as being the property of the partners who brought them into the business”.

90. Therefore, Ex.A.2 is not relevant to conclude that, the property of Jethalal

Haridas Joisher, became the property of the Firm. In fact a perusal of Ex.A2 shows that Jethalal Harida Joisher holds total extent of 1847 acres of land in Gudipalli and

Somandepalli villages of Penukonda taluk and entire land is in his name in the revenue accounts. In written statement it was mentioned specifically that, the lands were registered in the name of Jethalal Haridas Joisher but not in the name of the firm or in the names of all members jointly. Therefore, though there were three members, it was Jethalal Haridas Joisher who was managing the property.

91. A perusal of Ex.A1 show that, land is in new Sy.No.65 an extent of Ac.506- 20, Sy.No.67 an extent of Ac.201-26, Sy.No.83 in an extent of Ac.510-04cents,

Sy.No.99 an extent of Ac.348-17 in full of Gudipalli and land in Sy.No.733-230- 733(2) an extent of Ac.210-12 in full in Somandepalli village. In fact under Ex.B.3 also during cross-examination of PW.1, in OS.7/1996, it is elicited hat he is claiming land as per schedule in Ex.A.1 only.

92. At this juncture Ex.B86 to B89 which are registered sale deeds in the names of various other persons were relevant to show that, they are shown in the schedules mentioned in OS.7/1996, but not in present suit filed by the plaintiffs.

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Hence, it is concluded that as this suit is filed for declaration of title and earlier suit was for administrative of the firm, there is difference of schedules.

93. Learned Advocate for the defendants argued that in OS.7/1996, that was filed on the file of Senior Civil Judge, Penukonda, it was observed that as the suit was filed in individual capacity by said Jethalal Haridas Joisher in respect of management of firm, suit was held as not maintainable. Ex.A.6, Ex.A.7, A.8,

Ex.A.9 and A.10 relate to Judgment and Decree in OS.7/1996 and its appeal

AS.1/2003 and the Judgment in Second Appeal No.822/2006 before Hon’ble High

Court of Andhra Pradesh respectively. Therefore, filing present suit in individual capacity is not maintainable as in respect of same properties this suit is filed and that the suit is barred by not only Res-judicata, but also under order II and Rule 2.

94. At this juncture, arguments advanced on behalf of plaintiffs is relevant for consideration. In OS.No.7/1996, the cause of action for the suit arose at Petakunta,

Somandepalli Mandal, Penukonda Taluq and other places where the two parties resided on 29-07-1989 when the power of attorney was executed in favour of the defendants and on 4-10-1993 and on 25-11-1994, when the power of attorney was cancelled and on 04-10-1993 when 1st plaintiff has executed a G.P.A, in favour of second plaintiff and thereafter when defendants 1 and 2 tried to interfere with the management and possession of the Factory and on 25-11-1994, when the paper publication were made canceling the GPA and on 02-05-1996, when petition was presented to Police, within the jurisdiction of Hon’ble Court.

95. But present suit is filed for declaration of title. Cause of action for the suit arose on 20-09-1949 when Jethalal Haridas Joisher purchased the plaint schedule 62 property for valid consideration and started enjoying the property by raising crops and establishing Sisal Fiber Industry and Plantation in a part of the plaint schedule lands and on 29-07-1989 when the defendant and two others were appointed as agents under a General Power of Attorney and on 09-02-1996, when said GPA was cancelled and on 08-05-1996 when OS.7/1996 was filed in Senior Civil Judge

Court, Penukonda, by the 1st plaintiff and Late Jethalal Haridas Joisher all at

Gudipalli and Somandepalli within the jurisdiction of this Court and also on 20-11- 2006 when the Hon’ble High Court of Andhra Pradesh gave liberty to the 1st plaintiff to file fresh suit and on all other dates when defendant started giving trouble to the 1st plaintiff and his father in enjoying the plaint schedule properties all within the jurisdiction of this Court.

96. Earlier suit was filed for management of the firm and not in respect of the property. Therefore, said result is not binding in this case that is filed for declaration of title. There is no documentary proof to show that, plaint schedule property was handed over to the Firm. In page-2 of Ex.A2, a reference is made that, in written statement filed on behalf of Jethalal Haridas Joisher, it was pleaded that, the property does not belong to the Firm, but it was his individual property.

Further as father of DW.1 signed on Ex.A.1, now he cannot take a plea, contra to contents of Ex.A.1.

97. Another argument advanced on behalf of defendants is that when suit for declaration is filed, court fee has to be computed on market value.

98. Learned Advocate for defendants argued that, as in this suit itself the plaintiffs have taken a plea that the value of one acre is worth about Rs.70,000/- when the land was acquired as per Ex.51 and since the land is abutting to National 63

Highway, four lane road, it will be more than 2 to 3 lakhs per acre. In addition, since large extent of land is available and Government intends to take possession of the land to develop the SEZ, the value per acre may go up to Rs.10,00,000/-.

Hence court fee paid is not correct and prayed for dismissing the plaint or to direct the plaintiffs to pay deficit court fee.

99. In Judgment between Maddi Bal Reddy & Ors. And Merugu Anthamma @

Ors, reported in 2002 (3) A.P.L.J. 454 (HC), wherein our Honourable High Court held that; “ In a suit for cancellation of a decree, the court-fees has to be computed on the value of the property which is the subject matter of decree and it shall be the value as on the date of filing of the suit”.

“Sec.7 mandates that suitor is expected the value of the subject matter of the suit prevailing as on the date of filing of the suit though the section starts with the expression “save as otherwise provided”. But, as can seen from Sec.37 of the Act, it will not fall foul with the provisions contained in Sec. 7 of the Act, not there is any contrary mentioned therein”.

100. Learned Advocate for plaintiffs, relied on 1995 0 Supreme (AP) 322, wherein our Hon’ble High Court held that ; “As long as the rule contemplated in this behalf, i.e., Rule 3 of the Court Fee

Rules, a requirement precedent for the purpose of presenting the plaint before the lower Courts is in vogue, the Court on whose file the suit is presented, cannot overlook the provisions of Rule 3 of the Court Fee Rules and accept the valuation of the plaint as shown by the party in the plaint, so also the Court fees assessed by said party. The Presiding Officers of the Courts, have no option but to insist the parties to the litigation for fulfilling the requirement contemplated as per Rule 3 of

Court Fee Rules”.

101. He also relied on Judgment between A.S.S. Sathappa Chettiar Vs.

S.Rm. Ar. Rm Ramanathan Chettiar, reported in 1957 0 Supreme SC 139, wherein 64 our Hon’ble Apex Court observed that; “ Value for court-fee and value for jurisdiction must no doubt be the same as stated by plaintiff and that is of primary importance. It is from this value jurisdiction must be determined. It is the amount at which plaintiff has valued the relief sought for the purpose of court-fees that determines the value for jurisdiction in the suit and not vice versa. There can be little doubt that the effect of provisions of Sec.8 of Suit Valuation Act, is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of court-fees and that is natural enough. The computation of court-fees in suits falling U/Sec. 7 (iv) of Act, depends upon the valuation that the plaintiff makes in respect of his claim. Once plaintiff exercise his option and values his claim for the purpose of court-fees, that determines the value for jurisdiction”.

102. At this juncture when we look at the office note while numbering the suit, valuation as submitted by the plaintiffs was accepted. Plaintiffs submitted valuation certificate issued by the Office of Sub-Registrar, Hindupur. Learned advocates for plaintiffs also submitted during the course of their arguments that, they are ready to pay additional court fee if court directs.

103. At this juncture, a perusal of Ex.B.102, which is certified copy of Decree in

OP.03/1987 on the file of Subordinate Court at Penukonda, goes to show that,

when Bhanushali Sisal Fibre Industry and Plantation filed a petition U/Sec. 18 of

Land Acquisition Act, and it was referred by Sub-Collector, Penukonda to court as claimants sought higher price, finally when order was passed on 07-08-1987, the rate of Rs.1,000/- per acre as fixed by Land Acquisition Officer was held sufficient and confirmed. Admittedly, plaint schedule property has an extent o around 1800 acres. It is not an agricultural land. Generally land that is adjacent to National

Highway fetches more value, when compared to interior lands. Hence, contention of defendants that value of land is on higher side and valuation certificate issued by

Sub-Registrar, Hindupur cannot be considered for fixing court-fees, is of no 65 relevance. Therefore, it is concluded that the court-fee as paid by the plaintiffs is considered sufficient.

104. Therefore, as discussed above coupled with the law laid down in various judgments referred above, the argument advanced on behalf of the defendants that, the property belongs to the Firm and defendants got it under family partition is also not considered as observed in Suraj Lamps Vs. State of Hariyana case, wherein it was held that, when there is no registration of property, which is worth more than hundred rupees, said document is inadmissible. Therefore, Ex.B.8 &

Ex.B.121 regarding transfer of suit schedule properties in favour of defendants cannot be considered. The property is always treated as the property of individual/plaintiffs only is considered. Hence, this issue is answered in favour of the plaintiffs.

105. ISSUE NO.2:

Admittedly, in this case, earlier suit 07/1996 was filed on the file of Senior

Civil Judge, Penukonda, for grant of permanent injunction restraining the

defendants from administering the Firm situated in plaint schedule properties along with other properties, where there was "Bhanushali Sisal Fiber Industry and

Plantation" in existence. But, since it was held by competent Civil Courts under

Ex.A.5 to Ex.A.10, that the plaintiffs herein, are not entitled to grant of permanent injunction, as defendants are in possession of the Firm, this issue is answered against the plaintiffs.

106. ISSUE No.3:

Since plaintiffs, are not in possession of the Firm as per the findings of competent civil courts orders, they are entitled for recovery of the property through 66 process of Law, as the issues relating to declaration of title is answered in favour of the plaintiffs. Therefore, this issue is answered in favour of plaintiffs

107. Issue No.6:

In the result, suit is decreed with costs by declaring right and title of the plaintiffs to plaint schedule properties. Defendants and their men, et.al., are directed to deliver plaint schedule properties to the plaintiffs, within a month from today, failing which, plaintiffs are at liberty to proceed according to Law.

Dictated to Steno Gr.I, transcribed by him, corrected and pronounced

by me in open Court, on this the 29 th day of March, 2022.

S

IV Addl. District Judge-cum

Spl.Judge for Trial of Offences

against Women, Anantapuramu.

FAC II Addl.District Judge, Hindupur

APPENDIX OF EVIDENCE

Witnesses examined for

Plaintiffs. Defendants.

PW-1: Vikrm Jethalal Joisher DW1- Pratap Chaganlal Joisher PW-2: M.Gopal Rao DW2- Premal Pratap Joisher PW-3: N.Ramanjinappa @ Bhasker DW3- M.Gangadhar Rao PW.4: K.Nagaraja Rao DW.4-D.Sivaprasad Rao PW.5: B.Anil Kumar PW.6: S.B.Chennakesavulu PW.7: S.Venkatesh Kumar PW.8: Aswarthappa PW.9: M.Lakshmi Narasimhulu 67

Exhibits marked for plaintiff

Ex.A1Certified copy of Registered Sale deed dt.20.9.1949 executed by Chenchal Bai and others in favour of Jethalal Haridas Joshier

Ex.A2Certified copy of Orders in C.C.1916/1975 by the Land Reforms Tribunal,Penukonda dated 24-3-1976.

Ex.A3Notice dated 23-8-2005 addressed to the first plaintiff by National Highways Authority of India for acquisition of part of the suit property.

Ex.A4Eenadu paper publication dated 25-11-1994. Ex.A5Paper publication in News Today dated 25-11-1994 Ex.A6Certified copy of judgment in O.S.7/1996 on the file of Senior Civil

Judge’s court, Penukonda.

Ex.A7Certified copy of decree in O.S.7/1996 on the file of Senior Civil Judge’s court, Penukonda. Ex.A8Certified copy of judgment in A.S.1/2003 on the file of this court.

Ex.A9Certified copy of Decree in A.S.1/2003 on the file of this court.

Ex.A10Certified copy of judgment in S.A.822/2006 on the file of Hon’ble High Court of A.P. Ex.A11Certified copy of Adangal for fasli 1405 to 1407 Ex.A12Certified copy of Adangal for fasli 1406,1414 and 1415 Ex.A13Certified copy of Adangal for fasli 1416 Ex.A14Certified copy of Adangal for fasli 1414 Ex.A15Proceeding of the RDO,Penukonda dated 1-11-2007 Ex.A16Certified copy of Adangal for fasli 1419(2009-2010) of Somandepalli village land Ex.A17Certified copy of Adangal for fasli(Ten in number) for fasli 1419 for the land situated at Gudipalli village Ex.A18Certified copy of Adangal for fasli ( Four in number ) for fasli 1420 for the land situated at Somandepalli and Gudipalli village Ex.A19Adangals (9 in number) for fasli 1421 for the property situated at Gudipalli village obtained through Mee seva Ex.A20Adangals (9 in number) for fasli 1422 for the property situated at Gudipalli village obtained through Mee seva Ex.A21Adangals (9 in number) for fasli 1423 for the property situated at Gudipalli village obtained through Mee seva 68

Ex.A22Adangals (10 in number) for fasli 1424 for the property situated at Gudipalli village and Somandepalli obtained through Mee seva. Ex.A23Adangals (10 in number) for fasli 1425 for the property situated at Budipalli village and Somandepalli obtained through Mee seva Ex.A24Adangals (10 in number) for fasli 1426 for the property situated at Budipalli village and Somandepalli obtained through Mee seva Ex.A25Certified copy of Adangal for fasli 1421,1422 and 1423 of Somandepalli village issued by Tahasildar. Ex.A26House tax demand notices (19 in number) for the year 2013-14 for the house bearing D.No.2-1 to 2-9 issued by Panchayath Secretary ,Gudipalli Ex.A27House tax payment receipts (19 in number) for the year 2013-14 for the house bearing D.No.2-1 to 2-9 issued by Panchayath Secretary ,Gudipalli Ex.A28House tax demand notices (19 in number) for the year 2014-15 for the house bearing D.No.2-1 to 2-9 issued by Panchayath Secretary ,Gudipalli Ex.A29House tax payment receipts (19 in number) for the year 2014-15 for the house bearing D.No.2-1 to 2-9 issued by Panchayath Secretary ,Gudipalli Ex.A30House tax demand notices (19 in number) for the year 2015-16 for the house bearing D.No.2-1 to 2-9 issued by Panchayath Secretary ,Gudipalli Ex.A31House tax payment receipts (19 in number) for the year 2015-16 for the house bearing D.No.2-1 to 2-9 issued by Panchayath Secretary ,Gudipalli Ex.A32House tax demand notices (19 in number) for the year 2016-17 for the house bearing D.No.2-1 to 2-9 issued by Panchayath Secretary ,Gudipalli Ex.A33House tax payment receipts (19 in number) for the year 2016-17 for the house bearing D.No.2-1 to 2-9 issued by Panchayath Secretary ,Gudipalli Ex.A34House tax demand notices (19 in number) for the year 2017-18 for the house bearing D.No.2-1 to 2-9 issued by Panchayath Secretary ,Gudipalli Ex.A35House tax payment receipts (19 in number) for the year 2017-18 for the house bearing D.No.2-1 to 2-9 issued by Panchayath Secretary ,Gudipalli Ex.A36Certified copy of Sale deed dt.12-7-1947 executed by India Factories Private Limited,Mumbai in favour of Chenchal Chabildas Mehatha Jain. Ex.A37Positive photographs(28 in Number) with Compact disk. Ex.A38Genealogy of Velgi Narshi.

Exhibits marked on Commissioner side

Ex.X1Attested copy of adangal for fasli 1417 Ex.X2Attested copy of adangal for fasli 1418 Ex.X3Attested copy of adangal for fasli 1419 Ex.X4Attested copy of adangal for fasli 1420 Ex.X5Attested copy of adangal for fasli 1421 Ex.X6Attested copy of adangal for fasli 1422 Ex.X7Attested copy of adangal for fasli 1423 69

Ex.X8Attested copy of adangal for fasli 1424 Ex.X9Attested copy of adangal for fasli 1425 Ex.X10Attested copy of adangal for fasli 1426 Ex.X11Attested copy of adangal for fasli 1417 Ex.X12Attested copy of adangal for fasli 1417 Ex.X13Attested copy of adangal for fasli 1417 Ex.X14Attested copy of adangal for fasli 1417 Ex.X15Attested copy of adangal for fasli 1418 Ex.X16Attested copy of adangal for fasli 1418 Ex.X17Attested copy of adangal for fasli 1418 Ex.X18Attested copy of adangal for fasli 1418 Ex.X19Attested copy of adangal for fasli 1419 Ex.X20Attested copy of adangal for fasli 1419 Ex.X21Attested copy of adangal for fasli 1419 Ex.X22Attested copy of adangal for fasli 1419 Ex.X23 & Attested copy of adangal for fasli 1420 Ex.X24 Ex.X25Attested copy of adangal for fasli 1420 Ex.X26Attested copy of adangal for fasli 1420 Ex.X27Attested copy of adangal for fasli 1420 Ex.X28Attested copy of adangal for fasli 1421 Ex.X29Attested copy of adangal for fasli 1421 Ex.X30Attested copy of adangal for fasli 1421 Ex.X31Attested copy of adangal for fasli 1421 Ex.X32Attested copy of adangal for fasli 1422 Ex.X33Attested copy of adangal for fasli 1422 Ex.X34Attested copy of adangal for fasli 1422 Ex.X35Attested copy of adangal for fasli 1423 Ex.X36Attested copy of adangal for fasli 1423 Ex.X37Attested copy of adangal for fasli 1423 Ex.X38Attested copy of adangal for fasli 1423 Ex.X39Relevant entry for assessment of house taxes for Door Nos.2-1 to 2-19 running from 2014-15 Ex.X40Relevant entry for assessment of house taxes for Door Nos.2-1 to 2-19 running from 2015-16 Ex.X41Relevant entry for assessment of house taxes for Door Nos.2-1 to 2-19 running from 2016-17 Ex.X42Relevant entry for assessment of house taxes for Door Nos.2-1 to 2-19 running from 2017-18 70

Ex.X43Attested copy of challan Ex.X44Attested copy of challan Ex.X45Attested copy of challan Ex.X46Attested copy of challan Ex.X47Attested copy of Treasury statement Ex.X48Attested copies of the representation of Vikram Jethelal Joshier

dated 7-7-2015

Ex.X49Attested copy of Award No.8/2015-2016 Ex.X50Attested copy of the proceedings of the District collector,Ananthapuramu dated 16-7-2015(Three pages) Ex.X51Attested copy of Award No.4/2007 in R.C. G-1/8316/2006 dated 9- 3-2007

Exhibits marked for defendants

Ex.B1Certified copy of the plaint in O.S.7/1996 on the file of Senior Civil

Judge, Penukonda (OS 15/1996 on the file of Vacation Civil Judge,

Ananthapuramu),

Ex.B2Certified copy of the order of the Hon'ble High Court in CRP 858/1996

dated 01-03-2005

Ex.B3Certified copy of the deposition of PW1-Jethalal Haridas Joisher in

O.S.7/1996 on the file of Senior Civil Judge, Penukonda.

Ex.B4Certified copy of the deposition of Dayal H.Bhanushali as DW2 in

O.S.7/1996.

Ex.B5Letter written to defendant by Sri T.Ramalinga Reddy, Advocate in connection with the appeal before the L.R.A.T., Ananthapuramu dated 22.1996.

Ex.B6Office copy of representation Dated 2.8.99 made by defendant to the Addl.R.D.O., Ananthauramu and copy to the District Collector, Ananthapuramu.

Ex.B7Cover received by defendant from the Appellant Land Reforms Tribunal, Addl. Divisional Officer, Ananthapuramu along with letter vide C.C.No.1916/75/PKD, dated 22.07.1989 addressed by Addl., Revenue Divisional Officer,Land Reforms to me.

Ex.B8Minutes of the meetings held on 27.02.1991 and 14thApril, 1991, in connection with Bhanushali Sissal Fiber Industry plantation signed by Pratap Changanlal on behalf of Changalal Beljis family dated 12.8.1991 3 in No. (This document marked subject to object to proof and relevancy of the case) 71

Ex.B9Resignation of Joshier Jethalal Haridas dated 27.2.1991 (This document marked subject to object to proof and relevancy of the case)

Ex.B10Resignation of Joshier Vikram Jethalal dated 27.2.1991 (This document marked subject to object to proof and relevancy of the case)

Ex.B11Resignation of Joshier Prakash Jethalal dated 27.2.1991 (This document marked subject to object to proof and relevancy of the case).

Ex.B12Certificate issued by Pratap C.Joisher Partner of Bhanushali Sisal Fiber Industry and Plantation dated 27.2.1996 (This document marked subject to object to proof and relevancy of the case).

Ex.B13Canceled pass book Account No.33 of Bhanushali Sisal Fiber Industry and Plantation by Canara Bank, Somandepalli.(This document marked subject to object to proof and relevancy of the case).

Ex.B14Certified copy of certificate of register of firm of Bhanushali Sisal Fiber Industry and Plantation registered by Asst. Registrar of Firm, Mumbai

dated 21.01.1997.(This document marked subject to object to proof

and relevancy of the case).

Ex.B15General Power of Attorney attested by Notary dated 14.06.1995 of Bhanushali Sisal Fiber Industry and Plantation signed by Mukul Changalal Joisher and five others. (This document marked subject to object to proof and relevancy of the case). Ex.B16Cist receipts 5 in No. and notice of final annual assessment and demand Form.3. issued in the name of Bhanushali Sisal Fiber Industry and Plantation by Dy. Commercial Tax Officer, Hindupur,

dated 06.09.1993.(This document marked subject to object to proof

and relevancy of the case).

Ex.B17Certified true copy of Income tax acknowledgments 2 in No. in the name of Bhanushali Sisal Fiber Industry and Plantation, dated 11.06.1992, 25-09-1992 (This document marked subject to object to proof and relevancy of the case).

the case). Ex.B18Certified copy of the memorandum of appeal in AS 1/2003 on the file of Addl. District Judge, Hindupur, preferred against the judgment and decree in O.S.7/1996 on the file of Senior Civil Judge,Penukonda

dated 30.09.2002.

72

Ex.B19Certified copy of the Judgment in O.S.150/1999 on the file of J.C.J. Penukonda dated 28th February, 2012. Ex.B20Memo issued by the Divisional Panchayat Officer, Penukonda vide

RC.No.470/2010B,Penukonda dated 11.05.2010.(This document

marked subject to object to proof and relevancy of the case

Ex.B21Assessment order issued by the Assessing authority and Secretary, Agricultural market committee,Penukonda dated 30.09.2014 in the name of Bhanushali Sisal Fiber Industry and Plantation(This document marked subject to object to proof and relevancy of the case).

Ex.B22Assessment order issued by the Assessing authority and Secretary, Agricultural market committee,Penukonda dated 30.09.2014 in the name of Bhanushali Sisal Fiber Industry and Plantation(This document marked subject to object to proof and relevancy of the case).

Ex.B23Assessment order issued by the Assessing authority and Secretary, Agricultural market committee,Penukonda dated 30.09.2014 in the name of Bhanushali Sisal Fiber Industry and Plantation(This document marked subject to object to proof and relevancy of the case). Ex.B24Cash receipt issued by Agricultural market committee,Penukonda

dated 30.09.2014 in the name of Bhanushali Sisal Fiber Industry and

Plantation (This document marked subject to object to proof and relevancy of the case).

Ex.B25Cash receipt issued by Agricultural market committee,Penukonda

dated 30.09.2014 in the name of Bhanushali Sisal Fiber Industry and

Plantation (This document marked subject to object to proof and relevancy of the case).

Ex.B26Cash receipt issued by Agricultural market committee,Penukonda

dated 23.03.2015 in the name of Bhanushali Sisal Fiber Industry and

Plantation (This document marked subject to object to proof and relevancy of the case).

Ex.B27Cash receipt issued by Agricultural market committee,Penukonda

dated 06.11.2015 in the name of Bhanushali Sisal Fiber Industry and

Plantation (This document marked subject to object to proof and relevancy of the case). Ex.B28Cash receipt issued by Agricultural market committee,Penukonda

dated 02.03.2016 in the name of Bhanushali Sisal Fiber Industry and

Plantation (This document marked subject to object to proof and relevancy of the case).

Ex.B29Cash receipt issued by Agricultural market committee,Penukonda

dated 06.06.2016 in the name of Bhanushali Sisal Fiber Industry and

Plantation (This document marked subject to object to proof and relevancy of the case).

73

Ex.B30Cash receipt issued by Agricultural market committee,Penukonda

dated 03.08.2016 in the name of Bhanushali Sisal Fiber Industry and

Plantation (This document marked subject to object to proof and relevancy of the case).

Ex.B31Cash receipt issued by Agricultural market committee,Penukonda

dated 03.08.2016 in the name of Bhanushali Sisal Fiber Industry and

Plantation (This document marked subject to object to proof and relevancy of the case).

Ex.B32Cash receipt issued by Agricultural market committee,Penukonda

dated 03.12.2016 in the name of Bhanushali Sisal Fiber Industry and

Plantation (This document marked subject to object to proof and relevancy of the case).

Ex.B33Cash receipt issued by Agricultural market committee,Penukonda

dated 21.06.2017 in the name of Bhanushali Sisal Fiber Industry and

Plantation (This document marked subject to object to proof and relevancy of the case). Ex.B34Electricity Bills 41 in no. (This document marked subject to object to proof and relevancy of the case).

Ex.B35Electricity demand notices for the year 2017 4 in no. stands in the name of Mukul Joisher , Pratap Joisher and Dayal (This document marked subject to object to proof and relevancy of the case).

Ex.B36Proceedings of Agricultural market committee,Penukonda dated 31.01.2017 issued by the Secretary.(This document marked subject to object to proof and relevancy of the case).

Ex.B37Assessment order issued by assigning authority Agricultural market committee,Penukonda dated 21.06.2017 in the name of Bhanushali Sisal Fiber Industry and Plantation (This document marked subject to object to proof and relevancy of the case).

Ex.B38Assessment order issued by assessing authority Agricultural market committee,Penukonda dated 25.01/2017 in the name of Bhanushali Sisal Fiber Industry and Plantation (This document marked subject to object to proof and relevancy of the case).

Ex.B39Letter addressed by Bhanushali Sisal Fiber Industry and Plantation to the Secretary, Village Panchayat, Gudupalli dated 24.03.2011.(This document marked subject to object to proof and relevancy of the case).

Ex.B40Received Postal acknowledgment.

74

Ex.B41Form 8-A original licence issued by the Chairman, Agricultural Market Committee, Penukonda in the name of Bhanushali Sisal Fiber Industry and Plantation, Managing partner Pratap Changanlal Joisher, dated - Nil - (This document marked subject to object to proof and relevancy of the case).

Ex.B42Treasury Challan issued by State Bank of India, Penukonda for the house tax 2012-13 (This document marked subject to object to proof and relevancy of the case).

Ex.B.43Treasury Challan issued by State Bank of India, Penukonda for the house tax 2011-12 (This document marked subject to object to proof and relevancy of the case). Ex.B.44Letter dated 31.03.2013 addressed by Bhanushali Sisal Fiber Industry and Plantation, to the secretary, Gudipalli village Panchayat along with postal receipts.

Ex.B45Treasury Challan issued by State Bank of India, Penukonda for the house tax 2014-15 (This document marked subject to object to proof and relevancy of the case).

Ex.B46Treasury Challan issued by State Bank of India, Penukonda for the house tax 2013-14 (This document marked subject to object to proof and relevancy of the case).

Ex.B47Letter dated 10.01.2015 addressed by Bhanushali Sisal Fiber Industry and Plantation, to the secretary, Gudipalli village Panchayat along with postal receipts.(This document marked subject to object to proof and relevancy of the case).

Ex.B48Notice dated 28.9.2019 issued by Dy. Commissioner of Labour to Bhanushali Sisal Fiber Industry and Plantation.

Ex.B.49Certified copy of criminal revision petition No.108/2011 on the file of

Sessions Judge, Ananthapuramu filed by Bhanushali Sisal Fiber

Industry and Plantation against Vikram Joisher and others.

Ex.B50Certified copy of the orders passed in CRP NO.108/2011 dated 30th June,2016.

Ex.B51Certified copy of the decree in O.S.150/1999 dated 28.02.2012 on the file of Junior Civil Judge, Penukonda.

Ex.B52Form-8 Licence renewal issued by Agricultural Market committee, Penukonda in the name of Bhanushali Sisal Fiber Industry and Plantation dated 28.06.2012.(This document marked subject to object to proof and relevancy of the case). Ex.B53Attested copy of audit report issued by Audit Officer, Penukonda dated 30.11.2009.(This document marked subject to object to proof and 75 relevancy of the case). Ex.B54Attested copy of audit report issued by Audit Officer, Penukonda dated 30.10.2008.(This document marked subject to object to proof and relevancy of the case).

Ex.B55Attested copy of audit report issued by Audit Officer, Penukonda dated 30.03.2010.(This document marked subject to object to proof and relevancy of the case). Ex.B56Statement showing the stock by Bhanushali Sisal Fiber Industry and Plantation for the month of June, 2016.(This document marked subject to object to proof and relevancy of the case).

Ex.B57Statement showing the stock by Bhanushali Sisal Fiber Industry and Plantation for the month of June, 2017.(This document marked subject to object to proof and relevancy of the case).

Ex.B58Final annual assessment and demand notice issued by Commercial Tax Officer, Hindupur to Bhanushali Sisal Fiber Industry and Plantation dated 6.09.1993. (This document marked subject to object to proof and relevancy of the case).

Ex.B59Bunch of telephone bills 52 in No. (This document marked subject to object to proof and relevancy of the case).

Ex.B60House tax demand notices 351 in No.

Ex.B61Copy of objections submitted to the District Collector, Ananthaupramu

dated 02.09.2015 by Sri D.Pakkeera Reddy, Advocate.(This document

marked subject to object to proof and relevancy of the case).

Ex.B62Proceedings of Dy. Commercial Tax Officer, Hindupur dated 06.09.1993. (This document marked subject to object to proof and relevancy of the case).

Ex.B63Proceedings of Dy. Commercial Tax Officer, Hindupur dated 15.09.1994 (This document marked subject to object to proof and relevancy of the case).

Ex.B64Proceedings of Dy. Commercial Tax Officer, Hindupur dated 15.09.1994 (This document marked subject to object to proof and relevancy of the case).

Ex.B65Proceedings of Dy. Commercial Tax Officer, Hindupur dated 30.11.1995 (This document marked subject to object to proof and relevancy of the case).

Ex.B66Proceedings of Dy. Commercial Tax Officer, Hindupur dated 76 30.11.1995 (This document marked subject to object to proof and relevancy of the case).

Ex.B67Bunch of electricity Bills 430 in no. (This document marked subject to object to proof and relevancy of the case).

Ex.B68Bunch of bills with receipts and also pass book for the bore well 5 in No. and electricity books 5 in No for the year 2017.(This document marked subject to object to proof and relevancy of the case).

Ex.B69C.D. (not played) (This document marked subject to object to proof and relevancy of the case). Ex.B70Positive photos of buildings (without negatives) 61 in no.(This document marked subject to object to proof and relevancy of the case).

Ex.B71Positive photos of buildings (without negatives) 106 in no.(This document marked subject to object to proof and relevancy of the case).

Ex.B72Notary indenture of partnership dated 12.08.1991 4 in no.(This document marked subject to object to proof and relevancy of the case).

Ex.B73Certified copy of the Land Reforms Appellant Tribunal, Ananthapuramu

dated 16th September, 1976 in L.R.A.C.72/76.

Ex.B74Letter dated 08.07.2002 addressed to Sri Pratap Joishi (Attended by the counsel for the defendant herein) (This document marked subject to object to proof and relevancy of the case).

Ex.B75Bills issued by Sri Ram Bore Well agency dated 18.05.1995, 13.06.1995, 28.04.1996, 29.04.1996, 25.02.1997, 24.06.1997 and cist receipt issued by Mandal Revenue Inspector, Somandepalli dated 24.12.1996,Bill dated 19.01.1994 and 13.06.1995 total 11 in No. Ex.B76Receipt issued by Commercial Tax Officer, Penukonda dated 19.04.1991.(This document marked subject to object to proof and relevancy of the case).

Ex.B77Assessment order issued by Assessing Authority and Secretary, Penukonda dated 10.07.199.(This document marked subject to object to proof and relevancy of the case). Ex.B78Form-8 Licence renewal issued by Chairman, Agriculture Market committee, Penukonda dated 10.07.199. (This document marked subject to object to proof and relevancy of the case). Ex.B79Original insurance schedule issued by A.D.M., Oriental Insurance Company Ltd., in favour of dated Nil 77

Ex.B80Certificate issued by Weights and Measures Department,Ananthapuramu in favour of Bhanushali Sisal Fiber Industry and Plantation dated 23.02.199.(This document marked subject to object to proof and relevancy of the case).

Ex.B81Voucher of employees provident fund organization dated 19.06.1999. (This document marked subject to object to proof and relevancy of the case).

Ex.B82Receipts issued by AP-TRANSCO- 5 in no.(This document marked subject to object to proof and relevancy of the case).

Ex.B83Annual survey of industries 1997-98 at the owner of Bhanushali Sisal Fiber Industry and Plantation 2 in pages. (This document marked subject to object to proof and relevancy of the case). Ex.B84Electricity Bills 5 in no of the year 1999.(This document marked subject to object to proof and relevancy of the case).

Ex.B85Postal receipts issued by in charge telephone officer, Penukonda

dated 4.5.1996. (This document marked subject to object to proof and

relevancy of the case).

Ex.B86Original registered sale deed dated 21.01.1949. Ex.B87Certified copy of the reg. sale deed dated 6.3.1969.

Ex.B88Original registered sale deed 28th January,1969.

Ex.B89Certified copy of the registered extract dated28.1.1961.

Ex.B90Office copy of legal notice dated 04.09.2007 issued to the District Collector and 4 others by Sri D.Pakkeera Reddy, Advocate, Penukonda along with receipts and postal acknowledgments 5 each in No.

Ex.B91Letter addressed to the Tahasildar, Somandepalli by the District Collector dated 5.12.2012.

Ex.B92Legal notice dated 02.1.2008 along with postal acknowledgments 3 in No.

Ex.B93Bunch of notice of demand for house tax issued by Sarpanch, Grama Panchayat, Gudipalli village. (This document marked subject to object to proof and relevancy of the case).

Ex.B94Proceedings of Mandal Revenue Officer, Somandepalli dated 20.07.1994.

78

Ex.B95Office copy of notice dated 2.10.2012. u/s 80 CPC issued by Sri D.Pakkeera Reddy, Advocate to the District Collector and 3 others.

Ex.B96Reply notice issued by Bhanushali Sisal Fiber Industry and Plantation to the Mandal Revenue Inspector-II, Somandepalli, Dated 7.12.1991 along with the postal acknowledgment. Ex.B97Xerox copy of notice dated Nil attested by the counsel for the defendants on 21.12.2021. (This document marked subject to object to proof and relevancy of the case).

Ex.B98Postal acknowledgments 2 in No. along with receipts.(This document marked subject to object to proof and relevancy of the case).

Ex.B99Letter 01.03.1996 about the filing of Income Tax returns 1990-1991, 1995-1996. Ex.B100Certified copy of Registered extract of sale deed executed by Rangappa and others in favour of Bhanusali Premji dated 09.09.1963.

Ex.B101Notice Inam case file No.491/59 issued by Spl. Deputy Tahasildar, for inams in the name of Sanjeevappa S/o Chakala Nanjappa.

Ex.B102Certified copy of the decree in O.P.3/1987 on the file of Sub Ordinate

Judge's Court, Penukonda dated 07.08.1989

Ex.B103Original registered lease deed in the name of M/s. Bhanushali Sisal Fiber Industry and Plantation, Petakunta dated 18.12.2007.

Ex.B104Original House Tax receipts 25 in No. dated 15.01.1992.

Ex.B105Original House Tax receipts 21 in No. dated 06.02.1996.

Ex.B106Original House Tax receipts 21 in No. dated 31.01.1995.

Ex.B107Original House Tax receipts and demand notices total 36 in No. dated 19.10.2007. Ex.B108Original House Tax demand notices 24 in No. dated 04.06.1999. Ex.B109Original House Tax receipts 21 in No. dated 28.02.1994. Ex.B110Original demand notices and receipts 24 in No. dated 16.04.1997

Ex.B111Land cist receipts. Ex.B112Land cist receipt. Ex.B113Notice issued by M.R.O. dated 18.1.1992. Ex.B114Notice tax demand notice 21 in No. Ex.B115Letter issued by M.R.O.Somandepalli to the Manager Bhanuslai Sisel Fiber Industry and Plantation, Petakunta.

79

Ex.B116Notice issued by the M.R.O.Somandepalli. Ex.B117Copy of the criminal petition-96 filed before the S.P., Ananthapuramu along with postal receipts 7 in No. Ex.B118Request letter for cancellation of factory licence Reg.No.25045 dated 12th December,1994, addressed by Pratap Joisher,Partner to the Inspector of Factories, Ananthapuramu. Ex.B119Latter addressed by P.Sreekanth Reddy, Advocate, to Pratap Chhangal Joisher, dated 24-04-2005, Ex.B120Legal partners of Bhanusali Sisal Fiber Industries and Plantation dated 27.02.1991. Ex.B121Notarized of Minutes of meeting held on 27.02.1991 in connection with Bhanusali Sisal Fiber Industries and Plantation attended by 3 persons.

Ex.B122Treasury Challan No.353 for Rs.1,923/- dated 16.03.1992. Ex.B123Proceedings Income Tax department dated 06.09.1993. Ex.B124CC of orders in C.C.1916/75 on the file of Land Reforms Tribunal, Ananthapuramu dated 25th June, 1990 Ex.B125Treasury Challan No.311 for Rs.3,196/- dated 17.01.1996

Ex.B126Treasury Challan No.160 for Rs.5650/- dated 10.09.1991 Ex.B127Treasury Challan No.294 for Rs.11320/- dated 19.06.1991

Ex.B128Treasury Challan No.448, dated 10.09.1991. Ex.B129Form 43 acknowledge-cum-demand notice refund order issued by Dy. Commercial Officer,Penukonda. Ex.B130Statement income details (xerox copy, attested by counsel for the defendant Sri Gangadhar Reddy) (Marked subject to proof and relevancy) Ex.B131Notice of annual assessment and demand issued by Dy. Commercial Officer, Hindupur dated 27.02.1993. Ex.B132Form-C .VIII notice of final annual assessment and demand issued by Dy. Commercial Tax Officer, Penukonda dated 30.11.1995. Ex.B133Adangal for fasali 1416 (2006) attested by Tahasildar, Somandepalli 2 in no. Ex.B134Proceedings of Dy. Commercial Tax Officer, Hindupur dated 27.02.1993. Ex.B135True copy of adangal for fasali 1416 issued by Tahasildar, Somandepalli dated 22.08.2007 2 in no.

Ex.B136Form-1 declaration u/s 8/18 of Bhanushali Sisal Fiber Industry and Plantation, Petakunta Ex.B137C.C. of Form-C, notice of final annual assessment and demand issued by Dy. Commercial Tax Officer, Hindupur Dt. 6.9.1993 80

Ex.B138C.C. of proceedings of Dy. Commercial Tax Officer, Penukonda dated 30.11.1995. Ex.B139C.C. of proceedings of Dy. Commercial Tax Officer, Hindupur dated 06.09.1996. Ex.B140Notarized copy of Memo in O.S.7/1996 on the file of Sub Ordinate

Judge, Penukonda dated 29.01.1998

Ex.B141CC of proceedings of the Commercial Tax Officer, Penukonda dated 30.11.1995. Ex.B.142Carbon copy of notice issued by Mandal Revenue Officer-2, Somandapalli dated 03.12.1998. Ex.B.143Photostat Copy of the Affidavit and petition filed as IA.68/1996 in

OS.15/1996 on the file of Vacation Civil Judge, Ananthapuramu

Ex.B144 Certified copy of grounds of appeal in AS.1/2003 Ex.B145Application for registration of Firm dated 09.10.1970 relating to Jethalal and Co. Ex.B.146Application for registration of Firm Dated 24-01-1994 relating to Premji Haridas and Co. Ex.B.147Notice of charge of constitution dated 07.07.1948 relating to Premji Haridas and Co. Ex.B.148Notice of charge of constitution dated 31.08.1954 relating to Premji Haridas and Co. Ex.B.149Notice of charge of constitution dated 14.08.1970 relating to Premji Haridas and Co. Ex.B.150Application for registration of Firm relating to Haridas Velji and Co. Ex.B.143 to Ex.B.150 marked subject to proof and relevancy) Ex.B151Copy of Writ petition No.21407/2008 on the file of Hon’ble High Court against RDO, Penkonda Ex.B.152Minutes of meeting held on 27-02-1991 Ex.B.153Minutes of meeting held on 27-02-1991 Ex.B154Minutes of meeting held on 27-02-1991 Ex.B155Letter addressed to Managing Director, Sri Lakshmi Chemicals and Industries Pvt. Ltd., Bombay by Pratap C.Joisher dated 27-02-1991 Ex.B.156Minutes of meeting held on 27-02-1991 Ex.B.157Representation of Sri Vasanthalal Haridas to Pratap Chhaganlal dated 15-04-1991, Ex.B.158Letter addressed to the Managing Director, Premcemgam Pvt. Ltd., Bombay by Vasanthalal Haridas dated 27-02-1991 Ex.B.159Certified copy of Judgment in OS.7/1996 dated 30.09.2002 on the file of Senior Civil Judge, Penukonda. Ex.B.160Copy of Written Statement in OS.7/1996

IV ADJ/ATP FAC/II ADJ,HDP.

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IN THE COURT OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, HINDUPUR.

Present: Smt. B.Sunita IV Addl., District and Sessions Judge – Cum – Spl. Judge for Trial of Offences Against Women, Ananthapuramu. FAC II Addl. & Sessions Judge, Hindupur.

Friday the 1 st day of April, 2022.

SESSIONS CASE No.392/2018

(On committal by the Judicial Magistrate of First Class, Penukonda, in Cr.No.74/2017 of Roddam Police Station)

1.Name of the Complainant:Inspector of Police, Penukonda Circle

2.Name of the Police Station and :Roddam Police Station in Cr.NoCr.No.74/2017.

3.Name of the Accused:1)Talari Nagarjuna, age 45 years, s/o. (A.1) Late Anjinppa, VRA, Cholamarri Village, Roddam Mandal.\ (Case against A.1 is abated as dead)

2)Neeruganti Pathappa @ Patana, age (A.2) 23 years, s/o late Sanjeevappa, CholemarriVillage, Roddam Mandal

4.Offence:U/S. 302, 201 of Indian Penal Code and sec. 25 (1B) (b) of Arms Act, 1959.

5.Plea of Accused:Not guilty

The above Sessions case came on for final hearing before me on 25.03.2022 in the presence of Spl. Addl. Public Prosecutor for the State and

Sri P.Nagabushana Rao, Advocate for accused, after hearing the arguments and perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

Inspector of Police, Penukonda Circle, filed a charge sheet against the accused in Cr.No.74/2017 for the offences punishable U/S 302,201 of Indian Penal

Code and Sec.25 (1B) (b) of Arms Act of Roddam Police Station.

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1. Brief case of prosecution as per charge sheet is that, deceased B.K.Ravi is 3rd son of LW.1.B.K.Ramanjineyulu and is unmarried. He was doing weaving work at

Muddireddipalli village of Hindupur town and once in a week he used to visit his village. On 26-10-2017 during evening hours, Boya Kamakshamma and

A.1.Nagarjuna came to the house of deceased and chastised him, as he misbehaved with Kamakshmamma by speaking over phone. This was witnessed by Lws.1 to 4 namely B.K.Ramanjineyulu, B.K.Sarojamma, B.K.Hanumantharayudu and

B.K.Murali, respectively.

On 27.10.2017 at 9.00 am., deceased left the house informing his parents that he was going to hospital, Penukonda, but did not return. His cell phone was also not functioning. Therefore, LW.1 and others searched for him, but in vain. On 01.10.2017 at about 5.00 pm, LW.7.Sreeramulu, saw deceased getting down from a Van at

Cholamarri cross and that the van came from Penukonda and started to go to

Cholamarri village. At about 5.20 pm., LW.8.N.Narayanappa, witnessed A.2 while he was going to the fields of one Pachipulusu Ramaiah, along with deceased, by keeping his hand on the shoulder of deceased. A.1 was following behind A.2 and deceased.

On 03-11-2017 at about 4.30 pm., LW.5.Nagabushanappa, came to know from his villager about presence of dead body of a male person in barren lands of

Pachipulusu Ramaiah. Immediately, LW.5 went to the house of LW.1 and informed the same. In turn, LW.1, LW.3 and LW.4 went and found dead body without head and right hand. On seeing chappals and wearing apparels, LW.1 identified the dead body as that of his son.

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On 03-11-2017, at about 7.00 pm., LW.1 came to police station and gave a written complaint. Basing on said complaint, LW.21.Sub-Inspector of Police, Roddam

Police Station, on the instructions of LW.22 Inspector of Police, Penukonda Cicrle, registered a case in Cr.No.74/2017 U/Sec. 302, 201 of Indian Penal Code and submitted copies of F.I.Rs to all concerned. Further, investigation was taken up by

LW.22, after receiving F.I.R copy. He sent search parties to search for head and right foot of deceased and also posted guard to guard the scene of offence. As it was night he took up investigation on 04-11-2017, by visiting scene of offence, secured presence of LW.1 to 6 namely B.K.Ramanjineyulu, B.K.Sarojamma,

B.K.Hanumantharayudu, B.K.Maruthi, N.Nagabushanappa and Vetti Narasappa and conducted inquest over the dead body of deceased at 11.00 am. During investigation he examined the scene, took photographs of the scene and that scene of offence gave a presumption that right hand of the dead body was eaten by animals. He prepared rough sketch of scene of offence and seized pair of chappals and towel of deceased along with other material objects, including twine puri roles etc.

Thereafter, dead body was forwarded to Government Hospital, Penukonda for autopsy. On 05-11-2017, LW.22 went to the house of A.1.Nagarjuna and his concubine Kamkshmamma, but they were found absconding. Thereafter, he visited

Cholamarri Village and made discreet enquiries about incident and secured presence of LW.7 to 9 and LW.11 to 13, viz., R.Sreeramulu, Narayanappa, Basi Reddy,

B.Kamakshamma, B.Murali and K.M.Ravikumar respectively, examined and recorded their statements.

On 12-11-2017, at about 7.00 am., when LW.10.M.Bsheer, was at home, A.1 and A.2 went to him and confessed the offence, which was recorded by him and he 4 produced them before LW.22 at about 8.45 am and handed over the statement of accused recorded by him. Thereafter, LW.22 secured presence of mediators and in their presence, accused were examined. Since, they voluntarily confessed the offence and basing on their confession, they lead police and mediators to Forest area, located opposite to Penukonda- Madakasira Tar Road, where they have thrown the head of deceased into forest area. However, inspite of minute search in the forest area, head was not traced out, but sickle was found. A.1 and A.2 identified the sickle and accordingly it was seized under seizure mahazar drawn between 1.30 pm to 3.00 pm, in the presence of mediators.

Thereafter, A.1 and A.2 lead LW.22 and mediators to the house of A.1 and shown Hero Honda Motor cycle bearing No. KA-06-EH-4935, stating that he used said motor cycle for commission of offence. A.1 also produced wearing apparels with some blood stains and they were seized along with motor cycle, under cover of mahazar drawn from 4.30 pm to 5.15 pm. Further, A.1 and A.2 lead LW.22 and others to scene of offence and scene was reconstructed. A scene reconstruction mahazar was prepared in the presence of mediators from 4.30 pm to 5.15 pm.

Thereafter, A.1 and A.2 were brought to police station along with seized property and after observing formalities, accused were remanded to judicial custody. Seized material objects were sent to RFSL, Tirupati. Mother of deceased was sent for DNA test, as per order’s of Court to Hyderabad. After completion of investigation charge sheet was filed.

2. After filing of charge sheet before Judicial Magistrate of First Class,

Penukonda, case was numbered as PRC.No.14/2018 and copies of documents were furnished to the accused as required U/s 207 Cr.P.C. Since the case is exclusively 5 triable by the Sessions Court, case records were sent to the District and Sessions

Court, Anantapuramu for disposal according to law as per provision of Sec.209

Cr.P.C. In turn the District and Sessions Court, numbered the case as

S.C.No.392/2018 and made over to this Court for disposal according to law.

3. On receipt of case bundle, charges U/S 302 r/w 34 and 201 of Indian Penal

Code and Sec. 25 (1B) (b) of Indian Arms Act, were framed against A.1 and A.2. The charges were read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

4. To prove case of prosecution, PW.1 to PW.13 are examined and Ex.P1 to

Ex.P19 and MO.1 to MO.22 are marked. On behalf of accused, none was examined and no documents marked.

5. Heard both sides.

6. Now the point for determination is whether prosecution is able to establish the guilt of accused for the charges framed against them, for the offences punishable U/S.

302 r/w 34, 201 of Indian Penal Code and Sec. 25 (1B) (b) of Indian Arms Act, as mentioned supra beyond reasonable doubt?

7. Admitted facts in this case are that, dead body was found in the fields of

Pachipulusu Ramaiah on 03-11-2017 at about 4.30 pm, without head and right foot.

Case of PW.1, who is father of deceased is that, deceased is his third son, doing weaving work at Muddireddipalli, Hindupur Mandal. He used to visit the house once in 6 a week. One week prior to 26.10.2017, deceased came to village for Moharam festival. As he was suffering with fever for 7 days, he stayed with him till 27.10.2017.

8. It is contention of prosecution/Pw1 that, on 26.10.2017 at about 4.30 pm., A.1 and LW.11.B.Kamakshmamma, visited his house and they informed that his son behaved indecently with Kamakshmamma, over cell phone and asked PW.1, to admonish him and threatened his son with dire consequences while leaving the house.

9. On 27.10.2017 at 9.00 am., his son left the house and went to Penukonda hospital for treatment, but he did not return. Therefore, Pw1 searched for him but in vain. On 31.10.2017, he along with LW.14 Appireddy, Sarpanch, went to Roddam

Police Station and informed orally about missing of his son.

10. In this case, said LW.14 is not examined as witness. Even the Investigating

Officers, did not state anything in their evidence about PW.1 coming and giving oral complaint on 31.10.2017.

11. But, on 3-12-2017, at about 4.30 pm., PW.3 visited his house and informed him that, a dead body was lying in the fields of Pachipulusu Ramaiah. Immediately, he along with PW.2, PW.3 went there and noticed an unidentified dead body without head, right hand and right leg. They also noticed bunch of rope [purikoni] and some of the pieces tied to Neem Tree, one pair of chappal, cloths and towel. PW.1 identified them and that the towel belongs to A.1. Himself and PW.3 went to Police Station on the next day at 7.00 pm and lodged a complaint. Ex.P.1 is complaint dated 03.11.2017.

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12. During his cross-examination, it is elicited that, the distance between

Pachipulusu Ramaiah fields and his village is 2 Kms and Housing Board Colony is at a distance of 50 to 60 yards from the fields. He admitted that, he has not stated

before police or in Ex.P.1, that he witnessed bunch of thread hanging to Neem Tree

and towel at the scene. Adjacent to the fields, where dead body was lying, there is land of Vishnu Raju, sold to some Panjabi people and they raised Mango garden, sapota trees and other fruit bearing treas. There is a diary farm to the west of the fields of Pachipulusu Ramaiah and also a road used by adjacent land owners to go to their respective fields. On the eastern side of Ramaiah’s field, there is a road and thereafter land belonging to Gangamma. There is also a black top road adjoining the land of Gangamma, running between his village and Madakasira and general public were using said three roads.

13. Therefore, this evidence of PW.1, go to show that, there is a moment of human beings as well as traffic near by the scene, but somehow though on 27.10.2017 deceased went towrds the fields, none of them observed dead body till 03.11.2017 i.e., for nearly one week. Even in the village also nobody discussed about lying of unidentified dead body, in the fields of Pachipulusu Ramaiah till Pw1 came to know about it.

14. PW.1 also admitted that his village people graze sheep, cows and other animals in the fields of Pachipulusu Ramaiah, Gangmma and Anjinamma every day. But nobody noticed the dead body. By the time he went along with PW.3 to the scene of offence, there were about 10 to 15 members. He did not state before police or in

Ex.P.1 about what type of clothes his son was wearing when he left the house, to identify the dead body. But by the time he reached the scene, dead body was in a 8 decomposed stage. Therefore, it is clear that when there was moment of people in said area and as dead body was decomposed, the place where dead body was found is not the place, where he was murdered. This can be supported by other facts of this case as no blood stains were also found at the scene. Therefore, as per available evidence, only dead body was brought and kept there.

15. PW.1 admitted that, there are ill-feelings between his family and the family of accused about the death of his son. Five or Six times quarrels took place between them. As per prosecution motive behind murdering his son is that, as A.1 and LW.11.

Kamakshamma, scolded deceased a few days prior to incident contending that, deceased talked with LW.11 indecently over cell phone, due to which Lw11 along with A.1 came and quarreled with deceased in his house prior to incident and the same is evident as per evidence of PW.1. But non-examination of LW.11, in this case is fatal to the case of prosecution.

16. In fact it is also admitted that, on 03.11.2017, police visited the house of A.1 and enquired him about his involvement for the death of his son, as they suspected A.1 for the offence and the same is also mentioned in the complaint marked as Ex.P.1. Even, till today, head, hand and leg of the dead body were not traced out and according to

PW.1, basing on clothes on the dead body, he identified the dead body as that of his son.

17. When we look at evidence of PW.2 and PW.3, they also supported case of

Pw.1, regarding motive point. But in the cross-examination of Pw.2, it is elicited that, in the fields of Pachipulusu Ramaiah, his villagers graze their cattle goat, sheep every day. But none of the villagers discussed about lying of male dead body in the fields of 9

Pachipulusu Ramaiah in between 27.10.2017 to 03.11.2017. Except the clothes, there are no identification marks to say that the dead body belongs to his deceased brother.

18. In the cross-examination of PW.3 it is elicited that, he along with PW.1 went to the fields of Pachipulusu Ramaiah, at about 4.45 pm and stayed there for one hour and after observing the scene they returned to the village and that after due deliberations and consultations, as to against whom complaint should be lodged, they went to police station and lodged complaint.

19. This, evidence of PW.3, is relevant for consideration for the reason that, it is not that immediately after seeing the dead body they identified it and suspected the hand of accused. In fact, PW.3 also deposed that, there are no identification marks on the dead body, to identify that, he is son of PW.1. Except basing on wearing apparels, there is no other identity particulars to identify the dead body of deceased.

20. PW.4 is one of the circumstantial witnesses and according to him, on 01.11.2017, at about 5.00 pm., when he was standing at Cholamarri Bus-stop, he saw deceased Ravi getting down from Van and proceeding towards Cholamarri village. On 03.11.2017, he came to know about lying of dead body of deceased Ravi, in the fields of Pachipulusu Ramaiah. But, there is no evidence, as per evidence of prosecution, as to where deceased went after 01.11.2017 i.e., after he got down in the village of PW.1, which is also his native place. That means, the version of PW.1 that, on 27.10.2017, his son left the village and his dead body was found on 03.11.2017 and in between there is no information about his son, is to be viewed with suspicion, when evidence of Pw4 is taken into consideration, as he was not declared hostile.

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21. PW.5 is another circumstantial witness and according to him, he consumed alcohol along with A.1, A.2 at relevant time and that, A.1 informed him stating that, deceased called LW.11. Kamakshamma, over phone and asked her to have sexual intercourse with him. This allegation is not supported by LW.11 or the Investigation

Officer or any other prosecution witnesses. PW.5 also stated that, A.1 informed him that, he intend to kill Ravi and said fact was also informed to A.2. He did not disclose about said fact to any one in his village. Since, said facts are also not stated before police and therefore, his evidence also creates a doubt about involvement of accused in this case.

22. PW.6, is one of the Village Revenue Officers, and according to him, he was present when inquest was held. A.1 and A.2 went to him, requested him to help to surrender them before police. Therefore, he prepared Ex.P.3, which is confession statement of accused Nos.1 and 2 on 12.11.2017 and by 9.30 am along with A.1 and

A.2 he went to Inspector of Police, Penukonda and thereafter handed over accused to police. It was only basing on Ex.P.3 statement of accused, case was registered against the accused. This part of evidence of PW.6, is contra to the evidence of PW.1 and also Ex.P.1, Ex.P.11.

23. A perusal of Ex.P.11 go to show that, name of accused was mentioned in FIR, when it was registered. Therefore, evidence of PW.6 that, only basing on confession statement of A.1 and A.2 on 12-11-2017, name of accused is known to the investigating authority, is not believable. He further deposed that, police did not enquire A.1 and A.2 in his presence. He further depose that daily he used to attend office at Cholemarri village on a Two wheeler and pass through Madakasira and

Penukonda road, which is by the side of fields of Pachipulusu Ramaiah. There is 11

Housing Board Colony, nearby scene of offence. In inquest report, physical features of dead body were not identified.

24. When we look at the evidence of Investigating Officer, who is examined as

PW.13, in his cross-examination it is elicited on behalf of accused that, on 03.11.2017 at about 7.15 or 7.30 pm, he went to the fields of Pachipulusu Ramaiah, and he did not visit Cholamarri Village after observing scene of offence, as it was late night. In

Ex.P.1, parents of deceased suspected hand of A.1, as the person who killed their son. He tried to secure A.1, but in vain. He has not mentioned in Ex.P.14, about presence of blood stains. Ex.P.14 is Rough Sketch of the scene. Villagers used to pass through East-West rastha.

25. In further cross-examination, it is elicited that, PW.6 came to Police Station on 12.11.2017 along with accused in this case and Ex.A.3 at 8.45 am. But, when we look at evidence of PW.6, he stated that he went to police station at 9.30 am. Therefore, evidence of PW.13 that, PW.6 surrendered both the accused before him at 8.45 am, is not believed. At this juncture, the evidence of other Investigating Officer, who is examined as PW.11 is also relevant as it goes to show that, he registered the crime basing on the complaint given by PW.1 at 7.00 pm on 03.11.2017 against the accused.

26. If at all, PW.13 reached scene of offence at 7.15 or 7.30 pm, and further as the distance between police station and scene of offence is about 13 kms as per Ex.P.11

FIR, the manner of investigation done regarding lodging complaint, reaching scene of offence by Investigating Officers, who are examined as Pw.11 and PW.13, creates a 12 doubt regarding timing of lodging complaint against the accused and so also regarding surrender of accused before police by PW.6.

27. Since, in this case, only basing on extra judicial confession of A.1, which is not believable, the accused were shown as accused in this case, the version of prosecution creates a doubt about involvement of accused as discussed above. Even otherwise, main allegations are against A.1 and since A.1 died during pendency of trial, case against him is abated. Hence benefit of doubt is given to A.2 and acquitted.

28. In the result, case against A1 is abated. A2, is found not guilty for the offences punishable U/Ss 302 r/w 34 and 201 of Indian Penal Code and Sec. 25 (1B)(b) of

Indian Arms Act and hence acquitted U/S 235 (1) Cr.PC. Bail bonds of accused shall stand canceled six months after pronouncing this judgment as per provisions of

Sec.437-A Cr.P.C. The marked and unmarked property, except valuable i.e., Mo.14,

MO.15 and MO.17, shall be destroyed after appeal time is over. Valuables i.e.,

MO.14-Black Colour Nokia Cell Phone, MO.15- I-tel Cell Phone and MO.17-Hero

Honda Bike bearing No. KA-06-EH-4935 shall be confiscated to state.Send case

property to lower court for disposal according to law.

Dictated to Steno Gr.I, transcribed by him corrected and pronounced by me in

the open court this the 1 stday of April, 2022.

IV Additional Sessions Judge – cum – Spl. Judge for trial of offences against omen, Anantapuramu. FAC II Addl. District Judge, Hindupur.

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APPENDIX OF EVIDENCE

Witnesses examined for

Prosecution: Defense:

PW1:B.K.Ramanjineyulu: None

PW2:B.K.Maruthi PW3:N.Nagabushanappa PW4:R.Sreeramulu PW5:M.Basi Reddy PW6:M.Basheer PW7:N.Narayanappa PW8:K.M.Ravi Kumar PW9:Dr.O.Anand Babu PW10:V.Narasimha Murthy PW11:S.Muneer Ahammad PW12:Dr J.Vanajakshi PW13:K.Sreenivasulu

Exhibits marked for prosecution

Ex.P1:Complaint of PW.1 Ex.P2:Inquest Report Ex.P3:Confession statement of accused Ex.P4:161 Cr.P.C statement of PW.7 Ex.P5:Postmortem Certificate Ex.P6:FSL report Ex.P7:Seizure mahazarnama dated 12-11-2017 at 10.30 am Ex.P8:Seizure mahazarnama at 12.30 pm Ex.P9:Seizure mahazarama Ex.P10:Said scene observation mahazar Ex.P11:First Information Report Ex.P12:D.N.A Report Ex.P13:Three Photographs Ex.P14:Rough Sketch Ex.P15:Photographs 14

Ex.P16:Rough Sketch Ex.P.17:Photographs Ex.P.18:Rough Sketch Ex.P.19:Two photographs

Exhibits marked for defence :

Nil

Material Objects marked for prosecution :

MO.1:Pair of Chappal MO.2:Towel MO.3:Twinpuri MO.4:Another Twinepuri MO.5 Gutka Packets Hons MO.6 Hari Gutka Pockets MO.7 Blood stained earth MO.8 Control Eartch MO.9 Full shirt stained with blood MO.10 Mill made cut banian stained with blood MO.11 Snuff Color underwear MO.12 Light Color lungi flower design MO.13:Red color waist thread MO.14:Black Colour Nokia Cell Phone MO.15:I-tel Cell Phone MO.16:Sickle MO.17:Hero Honda Bike bearing No. KA-06-EH-4935 MO.18:Blood stained white shirt MO.19:Blood stained white full banian MO.20:Black green color design yellow flower designlungi MO.21:Blue Color mill made full drawer MO.22:White color and red color lines towel stained with blood

IV A.S.J-cum-Spl.Judge.

FAC/II ADJ,HDP

15

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In the Court of II Additional District and Sessions Judge, Hindupur.

Present:- Smt. B.Sunita, IV Addl.District Judge cum - Spl. Judge for trial of offences against women, Anantapuramu.

FAC of II Addl.District Judge, Hindupur.

Friday, this the 8 th day of April, 2022.

SESSIONS CASE No.290/2018

(On committal by the Judicial Magistrate of First Class, Penukonda, in Cr.No.23/2017 of Gorantla Police Station)

1.Name of the Complainant:Inspector of Police, Puttaparthy Rural Circle

2.Name of the Police Station and :Gorantla Police Station in Cr.NoCr.No.23/2017

3.Name of the Accused:1.Shaik Dada Khalandar, aged 26 (A1) years, s/o. Shaik Abdul,

2.Shaik Mallika, aged 45 years, w/o (A2) Shaik Abdul,

3.Shaik Jabiulla, age 23 years, s/o. (A.3) Shaik Abdul,

All are residents of Rajiv Colony, Gorantla Village & Mandal.

4.Offence:U/Sec.498 (A), 302 r/w 34 of IPC

5.Plea of Accused:Not guilty

The above Sessions case came on for final hearing before me on 01.04.2022 in the presence of Spl. Addl. Public Prosecutor for the State and Sri K.C.Krishna Reddy, Advocate for accused, after hearing the arguments and perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

Inspector of Police, Dharmavaram Urban Police Station, I/c of Puttaparthy

Rural Circle, filed a charge sheet against A1 to A.3, in Cr.No.23/2017 for the offences punishable U/S 498 (A), 302 r/w 34 of Indian Penal Code of Gorantla

Police Station.

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1. Brief case of prosecution as per charge sheet is that, prior to 10-02-2017, at 6.30 am, dead body of deceased Shaik Shamshad was found and she is wife of

A.1, who suspected her fidelity and it is also alleged that, he took her to barren field, beat her indiscriminately with the assistance of A.2 and A.3, poured kerosene and set her ablaze.

Accordingly, on 10-02-2017 at 11.00 a.m., LW1- Shaik Khaleel, lodged a complaint with LW.18- Sub-Inspector of Police, Gorantla Police Station, who registered a case in Cr.No…Cr.No.23/2017 and sent express F.I.Rs to all concerned. During investigation, LW.19 Inspector of Police, Puttaparthy Rural

Circle, who took up further investigation, as offence is grave in nature, sent a requisition to LW.17 Mandal Executive Magistrate, Gorantla, to conduct inquest over dead body of deceased and in turn he conducted inquest over the dead body from 1.00 pm to 3.30 pm and also examined Lw.1 to 6 namely, Shaik Khaleel,

Shaik Hussainsab, Shaik Nabisab, Shaik Basha, Shaik Shamiulla and Shaik

Hussainbasha respectively and recorded their statements. Thereafter, dead body was forwarded for autopsy.

LW.19 also examined and recorded the statements of LW.7 to 9 namely

D.Mahaboob Basha, M.Baskar and D.Babu. On 14-02-2017,at about 01.00 a.m.,

LW.19 arrested A.1 to A.3 and after observing formalities, they were remanded to judicial custody. Accordingly, after completion of investigation, charge sheet was filed against the accused.

2. After filing of charge sheet before the Judicial Magistrate of First Class,

Penukonda, case was numbered as PRC.No.28/2017 and copies of documents were furnished to the accused as required U/s 207 Cr.P.C. Since the case is exclusively triable by the Sessions Court, case records were sent to the District and

Sessions Court, Anantapuramu for disposal according to law under provision of

3

Sec.209 Cr.P.C. In turn the District and Sessions Court, numbered the case as

S.C. No.290/2018 and made over to this court for disposal according to law.

3. On receipt of case bundle, charges U/S 302 IPC against A.1, 498 (A) IPC against A.1 to A.3 and 302 r/w 34 IPC against A.2 and A.3, were framed. The charges were read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

4. To prove case of prosecution, PW.1 to PW.11 are examined and Ex.P1 to

Ex.P14 and Mo.1 to Mo.11, are marked. Defence adduced no evidence.

5. Heard both sides.

6. Now the point for determination is whether prosecution is able to establish the guilt of accused/A.1 to A.3, for the charges framed against them for the offences punishable U/S 302, 498 (A) and 302 r/w 34 of Indian Penal Code as mentioned supra beyond reasonable doubt?

7. Admitted facts in this case are that, deceased Shaik Shamshad is younger sister of PW.1 and PW.2. Her marriage was performed with A.1, three years prior to incident. According to prosecution, i.e., evidence of PW.1 and PW.2, at the time of marriage Rs.50,000/- cash, gold ring, 10 grams gold chain and watch were given to A.1. Whereas, deceased was presented with gold necklace, ear studs and a gold ring. But, it is not mentioned whether said valuables were given on demand or out of their wish. Both Pw.1 and PW.2 did not state that, said valuables were given on demand as dowry.

8. PW.1 deposed that, one month after her marriage, his sister demanded

Rs.60,000/- from him, as her husband wanted the amount, but PW.1 sent only

Rs.50,000/-. Thereafter, again one month later, deceased called him and asked for 4 amount, stating that accused was harassing her for additional amount, but he informed her to adjust with her husband and that he has no amount. She also informed him over phone that A.1 and A.2 were harassing her for additional amount, but no panchayats were convened regarding alleged harassment as per prosecution.

9. PW.1 further deposed that, A.1 contacted him over phone during 2017 at 7.00 pm and enquired whether his sister came to his house. But in complaint lodged by him, he stated different version stating that, when he contacted A.1 over phone and enquired about deceased, he stated that, deceased was not at home and asked PW.1 whether she came to his house.

10. At this juncture it is also relevant to look into evidence of Pw2, who is another brother of deceased. According to PW.2, on 09-02-2017, when PW.1 telephoned to A.1, as he intend to talk to his sister, accused asked PW.1 whether his sister came to their house, for which PW.1 informed that she did not come and therefore immediately by 8.30 pm, he along with himself, his father and LW.6-

Hussain Basha, went to the house of accused in an Auto, but the door was found locked. Same is evidence of PW.1 regarding going to the house of accused and finding it locked at relevant time.

11. PW.3 is Auto Driver and according to PW.3, at the time of marriage, parents of deceased gave Rs.40,000/- cash and the accused added Rs.10,000/- cash and they purchased a black beads chain and silver leg chain to deceased Shamshad.

12. PW.4 is another independent witness and according to him, A.1 and deceased lived happily for about 3 or 6 months. There were no disputes between them. But, in this case according to PW.1, within one month after marriage, A.1 5 demanded amount and he sent Rs.50,000/- and again after one month A.1 demanded further amount, but as he has no amount, he refused to send and asked deceased to adjust with accused. But, surprisingly PW.2, who is also brother of

PW.1 and deceased, deposed that, he came to know about PW.1 sending amount of Rs.50,000/- from PW.1. Therefore, this evidence of sending amount when demanded by accused at earliest point of time, is also doubtful, for the reason that, being a brother, how will he not be knowing such demands, when his sister got married and there are demands for amount by the accused. If really demands are there, deceased would have informed to her brothers as well as to her parents.

Admittedly, in this case, parents of deceased are not examined.

13. During cross-examination of PW.1, it is elicited that, when he lodged complaint, Sub-Inspector of Police scribed it where dead body was lying. But, evidence of PW.10 who is registered this case go to show that, PW.1 came to police station and presented written complaint, basing on which he registered a case in Cr.No.23/2017 under Ex.P.10.

14. Evidence of PW.1 also goes to show that, at about 12.30 pm., on the same day police arrested A.1 to A.3 and put them in lockup. This evidence is supported by evidence of PW.3 and PW.4, who are independent witnesses. But, according to

PW.11, who investigated into this crime, coupled with Ex.P.13, which is confession cum-arrest mahazarnama dated 14.02.2017 and evidence of PW.7 who is one of the punch witnesses to Ex.P13, go to show that, accused was arrested on 14-02- 2017 at 11.30 am at Gummaiahgaripalli Village. Therefore, regarding arrest of accused is also not believable as stated by prosecution, since there is no corroboration.

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15. In addition, evidence of PW.1 and PW.2 is that, when they went to the house of accused, they were not available and house was found also locked. If accused 1 to 3 were not available, how police arrested them and kept them lockup on the very same day after registering First Information Report, is not explained by prosecution. There are no eye witnesses to the incident. PW.1 is not able to say, as to who informed him over phone that his sister was killed and bunt. According to

PW.1, his sister informed him about harassment over phone for about seven times, but he had no idea to lodge complaint against accused, though they ill-treated her for want of additional dowry, which is also not believable.

16. In his chief examination, PW.1 deposed that, he received a phone call about laying of dead body of his sister from Hassan Basha. But, during his cross- examination, he deposed that, he does not know who called and informed about his sister’s dead body. In this case, said Hassan Basha, is not examined by prosecution for the reasons best known to prosecution.

17. According to Tahsildar, who is examined as PW.8 and also Investigating

Officer/Pw11, dead body was not in a position to recognize. Even PW.1 deposed that, basing on Chunni and one pair of Chappal, he identified the dead body. When we look at the evidence of PW.2, who is another brother of deceased, surprisingly he deposed that, he did not go to Vanka to see the dead body of his sister. But, he deposed that, Inspector of Police, examined him and recorded his statement, where the dead body of his sister was lying.

18. In this case, according to PW.2, his brother PW.1 lodged a complaint/ Ex.P.1 to Tahsildar, which fact Tahsildar did not state before the Court. Therefore, about presence of PW.2 at the scene as stated by him also creates a doubt. Surprisingly,

PW.2 also deposed that, he came to know from PW.1 that, accused beat his sister by suspecting her fidelity and therefore, he along with PW.1, his father 7

LW.6.Hassan Basha, went to Gorantla and advised the accused not to beat deceased. But, this fact is not stated by PW.1. Regarding suspicion, evidence of

Pw.1 is not supporting case of PW.2.

19. Main allegation of PW.1 is that, for want of amount, deceased was murdered by accused. Whereas, according to PW.2, the accused suspected not only fidelity of deceased, but also demanded amount. In cross-examination of

PW.2, he deposed that except Chunni and Chappals, there is no proof to identify the dead body of his sister. Further, his sister never informed him about ill- treatment said to have been meted by her from the accused. He only suspected the accused that they killed his sister and he does not know the particulars of scribe of Ex.P.1. When according to PW.2, the dead body handed over to them at 8.00 a.m., which is not supported by evidence of other witnesses, also creates a doubt in the mind of this Court about his presence at relevant time. Therefore, presence of PW.2 when PW.1 is lodged complaint is also doubtful or visiting scene of offence along with Pw1 and others.

20. PW.4 in his cross-examination deposed that, the Sub-Inspector of Police admonished the accused and his parents, brother of deceased not to quarrel with each other when they were shifting house hold articles in 407 Van. According to him, police took custody of accused by 10.30 am on the next day. It is suggested to PW.1 that after the death of deceased, PW.1 and others came and they ransacked the house of accused and committed theft of four lakhs worth cash, house hold articles and took them in van to Billuru. Witness voluntarily stated that, his mother gave A.1 one Almirah, Iron Cot and they were shifted to Billuru in the

Van. Therefore, this go to show that, immediately after the death of deceased in this case, on the very same day after lodging complaint before police, they also attacked the house of accused and in their presence they have taken house hold 8 articles and it is not clear what house hold articles A.1 has taken, since A.1 to A.3 were taken to police custody, in order to avoid further quarrels between both sides.

21. According to PW.3, accused were taken into custody by 08.30 or 9.00 am., on the same day. This also go to show that, to avoid further quarrels accused were arrested by police on he same day after registering FIR, accused were not remanded immediately after their custody. Therefore, it is clear that, the accused were very much present in the village and did not abscond.

22. PW.6 is the witness for scene observation mahazar and also inquest. In his cross-examination he also admitted that, the dead body was not in a position to identity. In the cross-examination of PW.7, who is witness for arrest, it is elicited that, since his villagers made galata in the village, he went to police station for settlement and thereafter he accompanied police for arrest of accused. At the request of Inspector of Police, he signed on the statement, drafted by Inspector of

Police at the time of arrest of accused.

23. According to Tahsildar, who is examined as PW.8, basing on information given by police, he filled up the name other details and the dead body was not in a position to identify and he would not have known the name of deceased. Thus police confirmed the accused and hence basing on the information given by police, he filled in Column No.II of Ex.P.6 Inquest Report. He does not know exact reason for cause of death of deceased. Whereas, in Column No.15 of Ex.P6 he mentioned that as deceased has illicit intimacy with others, accused beat her, poured kerosene and set her ablaze on 09-02-2017 at 6.00 pm. This evidence of Tahsildar, goes to show that, basing on the information given by police, he filled in columns of inquest report and hence the contents of inquest report are not believable and the 9 conclusion reached by Tahsildar is not based on the information furnished by prosecution party, but it was filled basing on the information furnished by police.

24. Finally, when we look at the evidence of Investigation Officer, who is examined as PW.11, he deposed that, after verifying First Information Report, registered by PW.10, he reached the scene by 12-00 noon and his investigation was initiated basing on the complaint given by PW.1 and statements of other witnesses. His evidence is of not useful to connect the accused for the reason that, there are several contradictions and omissions in the evidence of PW.1 and PW.2, who are brothers of deceased. When one brother spoke about nothing about suspecting character of deceased by accused, which other brother did not speak, coupled with non giving of dowry on demand as per complaint as well as evidence also go to show that, there was no such harassment for additional demand and hence accused murdered deceased is not believable.

25. According to PW.1, no panchayats were conducted, which is contra to evidence of Pw2, as according to Pw2, himself, Pw1, their father and others conducted panchayat. According to PW.2, regarding relationship between deceased and accused and so also accused and PW.1 and PW.2, is also not clear.

When accused were in the custody of police immediately after the incident, it is shown as they were absconding. Evidence of PW.1 and PW.2 is that when they came to village, accused were absconding, is also not believable. The fact remains that sister of PW.1 and PW.2 died and a case was registered. But, since the body was not in a position to identify, basing on chunni and chappal, it was identified according to PW.1 and PW.2 is also not believable, for the reason that they are easily available in open market.

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Learned counsel for accused relied on following decisions:-

I) Satya Sing Vs. State of Uttarakhand, reported in 2022 0 Supreme (SC) 143, wherein it was held that “ under section 106 of Indian Evidence Act in case of murder of wife and disappearance of evidence, common intention has to be proved.

When entire case of prosecution hinged on circumstantial evidence as there was no eye witness to alleged incident. Injuries found on dead body of deceased were ante-mortem in nature” case of prosecution can be relied on.

ii) Jose @ Pappachan Vs. Sub- Inspector of Police, Koyilandy, reported in 2016 0 Supreme (SC) 775, wherein it was held that a preference to wrongful acquittal compared to the risk of wrongful conviction is sustainable. Such is the abiding of jurisprudential concern to eschew even the remotest possibility of unmerited conviction”.

By relying on said judgments, it was argued that on behalf of the complainant that, , accused are not innocent and hence prayed for convicting the accused, but this court after careful discussion of available evidence as above, benefit of doubt is given to the accused and acquitted.

26. In the result, accused/A1 to A.3 are found not guilty for the offences punishable U/S 302, 498 (A) and 302 r/w 34 of Indian Penal Code and hence acquitted U/S 235 (1) Cr.PC. Bail bonds of accused shall stand canceled six months after pronouncing this judgment as per provisions of Sec.437-A Cr.P.C. The marked and unmarked property, except valuables, shall be destroyed after appeal time is over. Send case property to lower court for disposal according to law.

Dictated to Steno Gr.I, transcribed by him, corrected and pronounced by me

in the open court this the 8 thday of April, 2022.

IV.Addl. Sessions Judge-cum Spl.Judge for Trial of Offences against Women Anantapuramu. FAC II Addl.Distrirct Judge, Hindupur.

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APPENDIX OF EVIDENCE

Witnesses examined for Prosecution: Defense:

PW1:Shaik Khaleel - Nil - PW2:Shaik Nabi Sab PW3:Shaik Shamiulla PW4:D.Mahaboob Basha PW5:M.Bhaskar PW6:M.Krishnamurthy PW7:M.Ramaswamy PW8:R.N.Haseena Sulthana PW9:Dr. Anand Babu PW10:B.Venkateswarulu PW11:V.Sridhar

Exhibits marked for prosecution

Ex.P1:Complaint of PW.1, Ex.P2:161 Cr.P.C statement of PW.3 Ex.P3:161 Cr.P.C statement of PW.4 Ex.P4:161 Cr.P.C statement of PW.5 Ex.P5:Scene Observation Mahazar Ex.P6:Inquest Report Ex.P7:Signature of PW.7 in the complaint Ex.P8:Postmortem Certificate Ex.P9:Requisition Ex.P10:First Information Report Ex.P11:Rough Sketch Ex.P12:13 positive photographs ( Marked subject to objection) Ex.P13:Confession-cum- arrest mahazarnama dated 14-02-2017 at 11.30 pm. Ex.P14:RFSL Report,

Exhibits marked for defence -Nil- 12

Material Objects marked for prosecution

MO.1: Control earth MO.2: Ash MO.3: Plastic 5 liters Can MO.4: Green colour Polyster Dppata MO.5: Control earth MO,6: Kersone mixed earth and sand MO.7: Theempty 500 ml Mountain Dew Bottle, MO.8: Super Max Blade MO.9: Match Box MO.10: One pair of chappals MO.11: Red plastic can cap.

IV A.S.J-cum-Spl.Judge.

II ADJ, HDP.

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In the Court of II Additional District and Sessions Judge, Hindupur.

Present:- Smt. B.Sunita, IV Addl.District Judge cum - Spl. Judge for Trial of Offences Against Women, Anantapuramu. FAC of II Addl.District Judge, Hindupur.

Friday the 8th day of April,2022

Crl.Appeal No.17/2020.

From what court the appeal isLearned Judicial Magistrate of First Class, Madakasira.

Number of the case in that court C.C.No.178/2014

Number of Appeal

Crl.A.No.17/2020

Name and description of the Patan Ramakrishna Rao s/o. P.Chandra appellant/accused. Mouleswara Rao, age 56 years,Hindu, Pro. Sri Ganesh Motors, Authorized Dealer for Sonalika Tractors, Teachers Colony, Hindupur Town r/o. Vidya Nagar, Ananthapuramu Town. (A.4).

Name and description of the State Represented by SHO of Police, Roll Respondents. Police Station.

Section of Law under which it was A.4 is fond guilty of the offences U/Sec. imposed in lower court. 120-B, 406 and 420 of IPC and accordingly he is convicted U/Sec. 248 (2) of Cr.P.C. A.4 is sentenced to undergo rigorous imprisonment for one year and shall pay a fine of Rs.3,000/- and in default he shall undergo a simple imprisonment for one month for the offence U/Sec.120-B of IPC.

Further, A.4 is sentenced to undergo rigorous imprisonment for one year and shall pay a fine of Rs.3,000/- and in default he shall undergo a simple imprisonment for one month for the offence U/Sec.406 of IPC.

And further, A.4 is sentenced to undergo rigorous imprisonment for one year and shall pay a fine of Rs.3,000/- and in default he shall undergo a simple imprisonment for one month for the offence U/Sec.420 of IPC. All the 2 sentence shall run concurrently.

Whether confirmed, modified or Reversed reversed and if modified the modification.

Dates of Presentation

Presentation03.02.2020

Filed on03.02.2020

Notice issued by court12.02.2020

Hearing01-04-2022

Judgment08.04.2022

This case coming on 01.04.2022 for final hearing before me in the presence of Sri.P.Nagabushana Rao, Advocate for Appellant/Accued, and Spl Addl.

Public Prosecutor, on behalf of respondent and in this matter having been stood over for consideration till today, the court delivered following:- // J U D G M E N T //

1. Memorandum of Criminal Appeal is filed Under Section 374 (3) Cr.P.C. on behalf of Appellant/accused, against the judgment passed in C.C.No.178/2014, on 06.01.2020, on the file of Judicial Magistrate of First Class, Madakasira, wherein

Appellant/A.4 herein, was found guilty and convicted for the offences punishable

Under Section 120-B, 406 and 420 of IPC of India Penal Code.

Parties are arrayed as they were referred before the trial court;-

2. The Sub-Divisional Police Officer, Penukonda, filed a charge sheet against three accused / A.3, A.4 and A.5 [as mentioned in private complaint] in Cr.No.9/2013

U/S 420. 409, 477, 471, 120-B IPC and Sec. 3 (1) (IV) and Sec.4 of SC/ST (POA)

Act, 1989 and Sec.156 (3) of Cr.P.C of Rolla Police Station.

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3. Brief case of prosecution as per charge sheet is that, LW.1.B.Rangappa, is complainant and LW.5.A.Lokesh, is Manager of Andhra Bank of Rallapalli Village of

Gudibanda Mandal. A.1 & A.5 belong to Mala Community, A.2, A.3, A.4 are Brahmins.

LW.1 who approached A.4.Patnam Ramakrishna, who is Proprietor of Sri Ganesh

Motors Hindupur, an authorized dealer of Sonalika International

Tractors, Lepakshi Road, Hindupur Town and for his agricultural work, he obtained a quotation Dt. 30-06-2010 and handed over to A.1, who was Andhra Bank Manager, and in turn he applied for loan of an amount of Rs.5,06,956/- vide Tin No.

28172236168 and Invoice No. 32 and that A.1 sanctioned an amount of

Rs.4,50,000/- by accepting an amount of Rs.75,000/- from LW.1 as margin money, under a composite agreement and repayable in 18 half yearly installments at the rate of Rs.25,000/- each. After six months of gestation period repayments were to start from 30-12-2010.

A.1 issued DD No.555908 for an amount of Rs.4,50,000/- in favour of A.4 on 30-06-2010 and A.4 realized the amount on 01.07.2010 at India Overseas Bank,

Hindupur Branch and credited to his account No.301010095673 of same Branch.

But, he did not inform about non availability of Tractors from A.5 and took assistance of A.3 and A.3 to A.5 hatched a plan to cheat LW.1 and committed the offence. A.3 and A.4 approached A.5, paid one laksh each to A.5 with a promise to pay balance of Rs. 4,12,250/- for each tractor within 15 days and took delivery of two tractors. A.5 also received three blank cheques from A.3 and two blank cheques from A.4, before handing over two Sonalika Tractors to them. However, A.5, did not give invoice to them. In pursuance of their plan, A.4 handed over one Tractor with Engine bearing

No. 3100FLSO3E204379 and Chasis No.FZXSC2003365/3 to LW.1 on 17.10.2010, with temporary registration No.AP02-TNRT8043 Dt.16-10-2010 of RTA, Hindupur under Hypothication with Andhra Bank, Rallapalli of Gudibanda Mandal.

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In fact A.3 filed a complaint before Judicial Magistrate of I Cass, Pileru of

Chittoor District, U/Sec. 156 (3) Cr.P.C and it was endorsed to Pileru Sub-Inspector of Police and he registered it as a case in Cr.No.216/2010 U/Sec. 420 r/w 34 of IPC and Sec. 156 (3) Cr.P.C and LW.7. Assistant Sub-Inspector of Police, Pileru seized the Tractor, which was sold by A.3 to LW.1, from possession of LW.1 on 30.12.2010 at Agraharam Village of Rolla Mandal and produced before the Court of Judicial

Magistrate of I Class, Pileru.

In this case when investigation was taken up by Rolla Police, who examined and recorded the statements of LWs1 to LW.5 namely B.Rangappa, B.Sudhakar,

V.Gurappa, V.Dodda Lingappa and A.Lokesh respectively, prepared rough sketch of the scene. As per authorization of Superintendent of Police, Ananthapuramu vide

C.No.940/C3/DCRB-ATP/2013 Dt. 13-06-2013. LW.11. Sub- Divisional Police Officer, took up further investigation. He examined and recorded the statements of LWs.1 to 8 viz. B.Rangappa, B.Sudhakar, V.Gurappa, V.Dodda Lingappa and A.Lokesh

B.Rangappa, B.Sudhakar, V.Gurappa, V.Dodda Lingappa and A.Lokesh,

T.Narasimhulu, J.B.K.Raju and G.vibvekananda Reddy, respectively. He also obtained Xerox copies of Blank Cheques of A.3, A.4 from A.5 on 03.11.2013 that were issued to him at the time of taking Tractor from A.5. A.1, A.3 to A.5 got

Anticipatory Bail from Hon’ble High Court of Andhra Pradesh at Hyderabad. As there was no prima-facie case against A.1 and A.2, as per authorization of Superintendent of Police, Ananthapuramu vide C.No.940/C3/DCRB-AtP/2013 Dt.13-06-2013, LW.12

Sub-Divisional Police Officer, Penukonda, took up investigation and filed charge sheet against remaining accused.

3. On filing of charge sheet before trial Court, case was taken on file against A1,

A.3 to A.5 for the offences punishable U/S 420. 409, 477, 471, 120-B of IPC. On appearance of accused, copies of documents were furnished to the accused as 5 required u/s 207 Cr.P.C and case was numbered as CC.178/2014. On appearance of accused, they were examined U/s.239 Cr.P.C., and they denied the accusations levelled against them.

4. Thereafter, charges U/S. 420. 409, 477, 471, 120-B IPC of Indian Penal Code was framed against A3 to A.5, as case against A.1 is abated as he died as per

Docket Order dated 21-09-2017. The charge was read over and explained to them in

Telugu, for which they pleaded not guilty and claimed to be tried.

5. To prove case of prosecution, Pw1 to Pw10 were examined and Ex.P1 to

Ex.P18 are marked. Defence adduced no evidence.

6. After careful perusal of available evidence on record, trial court convicted the accused/A.4, as he was found guilty for the charges U/Sec. 420, 406 and 120-B of

IPC. Aggrieved by said conviction and sentence imposed against A4, he filed present criminal appeal with following grounds:-

7. It is contended that, the trial Court passed Judgment against Law and weight of evidence and that instead of acquitting the accused though offence is not proved against him, he was convicted and it resulted in grave miscarriage of justice. A.4 never cheated complainant. Evidence of PW.1 show that, A.4 handed over the

Tractor before the Bank Manager, Andhra Bank, Rallapalli and also issued

Temporary Registration Certificate dated 16-10-2010 and after a gap of two years, this private complaint was filed against A.4 and others. After handing over vehicle and issue of sale certificate before the Financier, ingredients of Sec.420 IPC against

A.4 and also 120-B IPC are not attracted against the appellant/A.4. In fact, Pw.1 in his cross-examination admitted that, he does not know contents of Ex.P.1 complaint, as he is illiterate. PW.2 also admitted that, liability of A.4 is discharged after handing 6 over the Tractor to PW.1 and hence ingredients U/Sec. 420 of IPC are not attracted against A.4. Finally, prayed for setting aside the Judgment of Lower Court.

8. Now the point for determination is, whether this appeal filed by A.4 against the conviction and sentence imposed by trial Court, is sustainable or not ?

9. Heard both sides.

10. Admitted facts in this case are that, Pw.1 filed a private complaint more than two years after his Tractor Trailer was seized by PW.6 in connection with a case in

Cr.No.216/2010 of Pileru Police Station. In fact, PW.10 also admitted that, he instructed Pw.6 to seize the vehicle. Therefore, Pw.6 came to Pw.1 on 30.12.2010 and took possession of Tractor under police proceedings marked as Ex.P.15 from

Pw.1 and PW.2 and thereafter he handed over the Tractor to PW.10. During cross- examination of Pw.6, it is elicited that, he did not take signatures of Pw.1 and PW.2 on Ex.P.15 and so also he did not take assistance of local Village Revenue Officer while seizing Tractor. He took 20 to 25 minutes for completing the proceedings.

However it is undisputed fact as per available evidence.

11. When we look at evidence of PW.10, he deposed that on 03.12.2010, he received a complaint from Judicial Magistrate of I Class, Pileru and it was filed by

A.5. Basing on said complaint, he registered a case in Cr.No.216/2010 U/Sec. 420 r/w 34 of Indian Penal Code. Therefore, he instructed PW.6, to seize the Tractor from PW.1. In his cross-examination it is elicited that, he did not receive any report from A.5 prior to receiving complaint from Court. So also he did not obtain orders in writing from Court, to seize Tractor.

12. Admittedly, in this case, record relating to crime No.216/2010 of Pileru, is not available. In addition, this case was registered on 08-03-2013 i.e., nearly after a gap 7 of more than 2 years. If really, the Tractor of PW.1 was taken by police under police proceedings, way back in 2010, why he kept quite for two years without lodging complaint, is not explained.

13. Case of PW.1 and also PW.2, who is son of PW.1 is that, they applied for Bank

Loan with subsidy and purchased Tractor by depositing Rs.75,000/- as margin money with the Bank of A.1. On the recommendation of A.1, who was Manager of

Andhra Bank, a sum of Rs.4,50,000/- was sanctioned for purchasing tractor and issued a Demand Draft in the name of A.3 for purchasing Tractor and not A4, who filed this appeal.

14. Evidence of PW.5, who worked as Bank Manager of Andhra Bank, at relevant time, coupled with Ex.P.3 to Ex.P.14, reveal that loan was sanctioned in the name of

Pw.1 and thereafter, sale certificate was also issued and temporary registration certificate was also issued under Ex.P.14. Since, in this case PW.1 and PW.2 admitted that, A.4 handed over the Tractor to them and after handing over the

Tractor, liability of A.4 is discharged and also since PW.2 also admitted that, after handing over Tractor as well as temporary registration certificate by A.4, he did not come while seizing the Tractor, goes to show that, A.4 was not present when tractor was seized.

15. PW.2 surprisingly also deposed that, when A1 demand them to clear the loan amount, he cleared the loan amount also. If really, PW.1 and PW.2 did not possess Tractor, whey they repaid total loan amount is also not explained by them.

PW.1 also deposed that, he does not know whether Road Transport Authority seized any papers refusing registration of the Tractor. In this case only allegation is made that Road Transport Authority has not registered the Tractor, but there is no evidence as to why the Tractor was not registered in the name of Pw.1. No such record is 8 available before this court to know the grounds for rejection of registration. Further, since it is admitted that, the Tractor was purchased under Hypothecation Scheme, the vehicle was not registered in the name of PW.1 and PW.2, also creates a doubt about what transpired between both parties.

16. During cross-examination of PW.2, it is elicited by A.5 that, when police came to seize the Tractor, A.5 was with them and he informed that A.4 did not pay amount in respect of the Tractor and hence he was taking the Tractor. But it is not the case of Pw1 or Pw2 or Pw5 that, the bank manager/Pw5 gave cheque to A4 towards payment for purchase of tractor by Pw1. In Fact Pw5 issued cheque in the name of

A3 towards payment for tractor. Therefore, it is only A3, who is to answer for non- payment of cost of tractor and not A4. According to Pw2, Road Transport Authorities informed him that, the Tractor was in the name of A.3 and hence they refused to register the Tractor. He knows that, A.5 filed a complaint against A.3 before Pileru

Police. There are no prior contacts between PW.2 as well as A.5 in this case.

Therefore, to know facts of cheating, available evidence is not enough to come to proper conclusion.

17. PW3 is Tractor Driver, who supported case of Pw.1 and PW.2, but he has no diving license. PW.4 turned hostile. Since PW.6 who is Assistant Sub-Inspector and seized Tractor from PW.1 and PW.2 at relevant time deposed that, the Tractor was in the name of Baba Enterprises and A.5 is Proprietor of said Enterprises, therefore, contention of PW.1 and PW.2 that the Tractor was in the name of A.3 or A4, cannot be believed.

18. Another important witness is Pw.8, who conducted part of investigation and according to him, there was no Tractor at the house of Pw.1 at the time of his visit and that PW.1 informed him that, A.4 handed over the Tractor with temporary 9 registration No. AP02-TNTR-8043 to him on 17-09-2010. During his cross- examination, it is elicited that, he did not examine neighbours of the house of PW.1.

He summoned PW.3 and PW.4, when he went there. PW.5 informed him that, when

PW.1 applied for loan, he sanctioned loan. According to Pw.9, who is a R.T.A Official during October, 2013, he did not attend public works, since there was a

Samikyandhra Agitation and all the staff was on strike.

19. Therefore, as seen from available evidence on record, it is clear that, one

Baba Enterprises belong to A.5 and he was holding agency of Sonalika Tractors. A.1 is Bank Manager, and he sanctioned loan of Rs.4,50,000/- to Pw.1 after PW.1 paid margin money of Rs.75,000/-. Thereafter, Demand Draft was given to A.3. Allegation is made that, since A.3 was not having Tractor, he purchased Tractor with the help of

A.4 from A.5 and in turn A.4 handed over the Tractor along with sale certificate and temporary registration number to Pw.1. It is also in evidence that, the Tractor given to PW.1 was seized in Cr,.No.216/2010 of Pileru Police Station by Pw.6. This complaint was lodged after two years of seizing Tractor by Pw6, for the best reason known to Pw1. In fact, PW.2 admitted that he cleared entire loan for Tractor. Though, it is alleged by Pw.1 and PW.2 that, the R.T.A Officials did not register the Tractor in their name and the Tractor was also taken away by Police in different crime, that was got registered by A.5 at Pileru, why the complainant paid entire loan amount is not explained. In addition, in this case PW.1 and PW.2 admitted that, after handing over the vehicle by A.4, along with sale certificate, his responsibility ceases and it is a fact also. There is no evidence to show that RTA officials refused to register the tractor in the name of Pw1. In fact prosecution has not produced record to know in whose name the tractor is standing as on the date of giving evidence by Pw1 or Pw2.

20. Therefore, with the discussion made above it is concluded that, prosecution has failed to prove ingredients of either conspiracy or cheating against A.4. Hence, 10 trial Court failed to appreciate properly evidence on record against A.4. Therefore,

Judgment of lower Court is set aside.

21. In the result, with the discussion made above, this appeal is allowed, by setting aside the judgment passed in CC No.178/2014, dt.06-01-2020 on the file of learned Judicial Magistrate of First Class, Madakasira. Accordingly, A.4, is found not guilty for the offences punishable under Sections 120-B, 406 and 420 of IPC and acquitted U/Sec.248 (1) Cr.P.C. Bail bonds of A4 shall stand cancelled after expiry of six months u/s 437 (A) Cr.P.C. Fine amount paid by appellant/A.4, shall be refunded to him, after expiry of appeal time.

Dictated to Steno Gr.I, transcribed by him, corrected and pronounced by me in

Open Court, this the 8th day of April, 2022.

IV Additional District & Sessions Judge – cum - Spl. Judge for trial of offences against women, Anantapuramu. FAC II A.D.J, Hindupur.

C.C.To: Learned Judicial Magistrate of First Class, Madakasira along with lower Court records in CC No.178/2014, dt.06.01.2020.

In the Court of :II Addl.District Judge Hindupur

Case No. :AS/0000031/2019 G.Somasekhar S/o Late Gajula Nanjundappa Vs PuttaNanjamma W/o Sidda Murthy

Date : 08-04-2022

Business: Memo filed not pressing the appeal on behalf of appellants. Hence this appeal is dismissed as not pressed without costs Nature of Disposal : DISMISSED AS NOT PRESSED Disposal Date: 08-04-2022 II Addl.District Judge Hindupur