Sri C. Purushottam Kumar

APWG000017662020

IN THE COURT OF PRINCIPAL DISTRICT JUDGE,

WEST GODAVARI :: ELURU.

Present: PURUSHOTTAM KUMAR CHINTALAPUDI

Principal District Judge,

West Godavari, Eluaru.

Monday, on this the 20th day of January, 2025.

APPEAL SUIT No. 31 of 2020

&

APPEAL SUIT No. 12 of 2021

(O.S.No.475/2012 on the file of Principal Civil Judge

(Senior Division), Eluru)

A.S.No.31 of 2020

Between:

1. Mathey John Devid Samuel…Appellants/Defendants 1

2. Smt.Mathey Jeeva Manoharamto 7 in O.S.No.475 of 2012

3. Mathey Lilly Johnand L.Rs of deceased 2nd

4. Smt.Dasi Swarna KumariAppellant.

5. Ch.Santha Kumari

6. Mathey Suneel Manohar

7. Smt.Komma Priyanka.

8. Mathey Mercy Buleah

9. Mathey Jasmine (Appellant Nos.8 and 9 are added as L.Rs of deceased 2nd Appellant as per orders in I.A.No.853 of 2021, dt.08.09.2022)

And

2

1. Smt.Chintalapati Surya Kumari…Respondents/Plaintiff

2. Chavva Mallikharjuna Raoand D8 in O.S.No.475 of 2012

A.S.No.12 of 2021

Between:

Chavva Mallikharjuna Rao…Appellant/Defendant No.8 in O.S.No.475 of 2012

And

1.Smt.Chintalapati Surya Kumari…Respondents/Plaintiff 2.Mathey John David Samueland D1 to D7 in 3.Mathey Jeeva ManoharamO.S.No.475 of 2012 & 4.Mathey Lilly JohnL.Rs of 3rd respondent. 5.Dasi Swarna Kumari 6.Ch.Santha Kumari 7.Mathey Suneel Manohar 8.Smt.Komma Priyanka 9.Mathey Mercy Buelah 10.Mathey Jasmine (9th and 10th respondents are L.Rs of 3rd respondent and are added as per orders in I.A.No.183 of 2021, dt.27.07.2022)

On appeals filed against the Judgment and Decree dated 17.02.2020 passed in O.S.No.475 of 2012 on the file of Principal Civil Judge (Senior Division), Eluru, and made in:

Between:

Smt.Chintalapati Surya Kumari…Plaintiff

And

1. Sri Mathey John Devid Samuel

2. Smt.Mathey Jeeva Manoharam… Defendants.

3. Mathey Lilli John

4. Smt.Dasi Swarna Kumari 3

5. Ch.Santha Kumari

6. Mathey Suneel Manohar

7. Komma Priyanka

8. Chavva Mallikarjuna Rao

These both Appeals have come on 30.12.2024 for final hearing in the presence of Sri N.V.Satyanarayana, Counsel for Appellants in A.S.No.31 of 2020 and of Sri E.Srinivasa Babu, Counsel for Respondent No.1 and of Sri D.Umamaheswara Rao, Counsel for Respondent No.2 in A.S.No.31 of 2020 and of Sri D.Umamaheswara Rao, Counsel for Appellant in A.S.No.12 of 2021 and of Sri E.Srinivasa Babu, Counsel for Respondent No.1, and of Sri N.V.Satyanarayana, Counsel for Respondent Nos.2 to 10 in A.S.No.12 of 2021 and on hearing both sides and the matter having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

A.S.No.31 of 2020

1. A.S. No. 31 of 2020 is filed by Sri Mathew John David Samuel and six others against Chintalapati Suryakumari (the Plaintiff) and Chavva

Mallikarjuna Rao (Defendant No. 8). Respondent No. 1, Chintalapati

Suryakumari, originally filed the suit O.S. No. 475 of 2012 on the file of the

Principal Civil Judge (Senior Division), Eluru, seeking the relief of specific

performance, directing Appellant Nos. 1 to 7 and Respondent No. 8 to execute a regular sale deed upon receiving the balance of sale consideration from her, or alternatively, for the refund of the advance amount of Rs50,000/- with interest.

2. The Trial Court, vide the impugned judgment dated 17.02.2020, decreed the suit in favour of Chintalapati Suryakumari, granting the decree of specific performance, directing the execution of the regular sale deed in favour of Chintalapati Suryakumari upon receiving the balance of sale consideration.

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3. Dissatisfied with the said impugned judgment, Defendant Nos. 1 to 7 preferred the appeal in A.S. No. 31 of 2020. Defendant No. 8 preferred an appeal against the same impugned judgment and decree in A.S. No. 12 of 2021, wherein he referred to the Plaintiff as Respondent No. 1 in the said appeal, and the Appellants herein as Respondents 2 to 8. Since both appeals arose out of the same impugned judgment and decree, a common judgment was pronounced.

4. Appellants and Respondents are represented through their respective counsels. For better appreciation, the parties are referred to as they were

before the Trial Court: Respondent No. 1 as the Plaintiff, Appellants 1 to 7 as

Defendants 1 to 7, and Respondent No. 8 as Defendant No. 8. The impleaded parties, Appellants No. 9 and 10, are the legal representatives of the deceased second Defendant.

Brief Facts of the Case:

5. The Plaintiff pleaded that Defendants 1 to 4 had partitioned their joint family properties on 11.03.2011 through a valid registered partition deed.

Thereafter, the 1st Defendant executed an agreement of sale with the Plaintiff on 06.09.2011, agreeing to sell the plaint schedule property, which had been allocated to his share, for a total consideration of Rs.5,89,875/-. The Plaintiff paid an advance amount of Rs.50,000/-, and the terms and conditions were entered into writing on a stamp paper. The Plaintiff was to pay Rs.2,50,000/- by 30.10.2011 and Rs.2,89,875/- by 30.11.2011, by which time the 1st

Defendant, Mathew John David Samuel, was required to complete the measurement of the schedule property.

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6. The Plaintiff was ready with the cash and requested the 1st Defendant to receive the amount by 30.10.2011, but the 1st Defendant neither received the payment nor measured the property or prepared for registration. The

Plaintiff later came to know that Defendant Nos. 1 to 7 had executed a regular sale deed in favour of Defendant No. 8. Upon obtaining copies from the concerned authorities, the Plaintiff discovered that the partition entered into by Defendant Nos.1 to 4 had been canceled on 18.10.2011, and on the same date, a sale deed had been executed in favour of 8th Defendant.

7. The cancellation of the partition and execution of the sale deed in favour of 8th Defendant were not binding on the Plaintiff, as the 1st Defendant had entered into the agreement of sale with the Plaintiff concerning his share as the Kartha of the joint family. The Plaintiff claimed to have been ready with the cash and issued a legal notice on 03.01.2012 requesting the Defendants to perform their obligation. The Defendants, except 8th Defendant8, issued a reply on 18.01.2012 with false allegations. Consequently, the Plaintiff filed the suit for specific performance based on the agreement of sale.

Status of Defendants before trial court:

8.It is relevant to mention that Defendant Nos.1 to 8, for not filing written statements, were set ex parte as per the docket proceedings dated 25.03.2013. Subsequently, Defendant Nos. 1 to 7 alone filed an application to set aside the ex parte order, which was allowed on 08.03.2017 and they contested the case. As per the draft settled issues, the claim against 8th

Defendant is dismissed.

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Defense of D1 to D7:

9.The 1st Defendant filed a written statement, which was adopted by

Defendant Nos. 2 to 7.

10. The Defendants’ stance is a complete denial of the execution of the agreement of sale in favour of the Plaintiff. They denied that the 1st Defendant had received any advance sale consideration or executed any agreement of sale for a total sale consideration of Rs.5,89,875/- at any point in time. The 1st

Defendant never entered into the agreement of sale with the Plaintiff. They also denied that the Plaintiff agreed to pay the sale amount in installments.

11. The 1st Defendant’s position is that his father, Mathe Srinivasam, purchased the plaint schedule and other properties under a registered sale deed dated 17.05.1960 from Jallipalli Pullamma and others. Since then, he was in possession and enjoyment of the property. He died intestate, leaving behind the Defendant Nos.1 to 4 as Class I legal heirs.

12. When the 1st Defendant was in need of money, he approached the

Plaintiff's husband, requesting him to arrange Rs.50,000/-. The Plaintiff’s husband, an unauthorized moneylender, agreed to provide the amount but insisted that the 1st Defendant and his family members sign blank stamp papers and white papers, providing assurance that the signatures were only for security purposes. Believing the Plaintiff and under financial distress,

Defendant Nos.1 to 4 signed blank stamp papers, white papers, and blank promissory notes. The Plaintiff’s husband allegedly took advantage of these blank documents to fabricate the agreement of sale dated 06.09.2011.

13. The Defendants further contended that the boundaries of the property that fell to the share of the 1st Defendant differ from those mentioned in the 7 alleged agreement of sale. The 1st Defendant claimed he had no independent title over the property.

14. The Defendants pleaded that the property also involves the share of other family members as per the partition deed. After the partition on 11.03.2011, the 1st Defendant sold 605 sq. yards of the property to one

Suggala Babu on 05.05.2011. Thus, as of the date of the alleged agreement of sale, the 1st Defendant had no title to enter into any contract. Additionally, the alleged agreement of sale is not valid as the 1st Defendant was not solely entitled to execute such an agreement.

15. The properties are joint family properties. The share of the 1st

Defendant, determined on 11.03.2011, remained part of the joint family with his family members. The 1st Defendant, along with D1 to D4, executed a sale deed in favour of Suggala Babu on 05.05.2011. However, on 17.10.2011,

Suggala Babu executed a cancellation deed for his sale deed with the family members of the 1st Defendant.

16. Dissatisfied with the partition, the family members of 1st Defendant agreed to cancel the partition deed on 17.10.2011. Consequently, the earlier partition deed was cancelled, and they obtained a cancellation deed from

Suggala Babu. Upon cancellation, the property reverted to joint family ownership.

17. The Defendants asserted that the agreement of sale is a fabricated document created by the Plaintiff’s husband using blank stamp papers. They claimed that the property described in the schedule did not exist as of the date of execution of the alleged agreement of sale.

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18. They also refuted the admission of the agreement of sale in their legal reply notice, attributing the error to their counsel, who acted without proper instructions. Since the partition was cancelled, even if the 1st Defendant had any right over the property, it would have become void. The Defendants argued that a decree for specific performance could not be granted as the

Plaintiff lacked equity.

19. The Defendants denied agreeing to measure the property, denied fraud in executing the cancellation deed or the sale deed in favour of Suggala

Babu, and denied the Plaintiff’s readiness to pay the balance sale consideration. They also claimed that Defendant Nos. 2 to 7 are not necessary parties.

20. The Defendants contended that the suit is not maintainable without seeking the relief of declaration. As such, they argued that the Plaintiff is not entitled to seek specific performance or any relief and sought dismissal of the suit.

Issues:

21.With the above factual aspects, the trial court has settled the following issues.

1) Whether the Plaintiff is entitled for the relief of specific performance of contract as prayed for or not?

2) Whether the Plaintiff is entitled for alternative relief of refund of money Rs.50,000/- with interest at the rate of 24% per annum, as prayed for or not?

3) To what relief?

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Evidence:

22. Before the trial court, both parties have let in evidence. Plaintiff examined herself as PW-1, examined B. Prakasa Rao, said to be one of the attestors of agreement of sale as PW-2 and examined Shaik Karimulla Baji, said to be scribe of agreement of sale as PW-3. The Plaintiff exhibited Ex.A- 1 to Ex.A-6, which are agreement of sale, certified copy of registered partition deed, certified copy of revocation deed, certified copy of registered sale deed, office copy of legal notice and reply notice.

23. The Defendants examined 1st Defendant as DW-1, examined 3rd

Defendant as DW-2 and one S.Babu as DW-3. Ex.B-1 to Ex.B-4, which are certified copies of partition deed, registered sale deed and two cancellation deeds are marked.

Observation of the Trial Court:

24. Before the trial court, both parties advanced their arguments and also filed written arguments. Upon hearing from both sides, the trial court addressed Issue Nos.1 and 2 together. However, under Issue Nos.1 and 2, the trial court framed an additional Point No. 1, which is as follows:

Whether the Plaintiff could establish the contents of Ex.A-1 agreement of sale and the due execution of the agreement of sale by the 1st Defendant in the presence of attestors and the scribe or not? Whether the Plaintiff could establish the passing of part consideration to the 1st Defendant under Ex.A-1 agreement of sale in the presence of attestors and the scribe or not? Whether the Plaintiff demonstrated her readiness and willingness to perform her part of the promise or not? Whether the Plaintiff is entitled to seek the relief of specific performance of the agreement of sale and also entitled to obtain a regular sale deed from the Defendants on payment of the balance sale consideration or not?

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25.The trial court, while discussing the evidence, appears to have relied on Ex.A-5, the legal notice issued by the Plaintiff to the 1st Defendant. It observed that Ex.A-5 clearly reveals that the Plaintiff was always ready and willing to perform her part of the promise and to pay the balance sale consideration to the 1st Defendant under Ex.A-1 agreement of sale. The

Plaintiff's readiness and willingness were established through Ex.A-5.

26. Ex.A-5 coincides with and is connected to the evidence of PW-1. This is cogent and conventional material, supported by both documentary and oral evidence, corroborating Ex.A-1. Consequently, the trial court found the genuineness of Ex.A-1 to be established and held that the Defendant failed to perform his obligation. Therefore, the Plaintiff was held entitled to the relief sought.

27.The trial court also addressed Point No.2, observing that the

Defendants failed to disprove the contents of Ex.A-1 and the documentary evidence. The evidence of DW-3 was found to be unsupportive. The court held that the nominal sale deed dated 18.10.2011, allegedly executed by the 1st Defendant along with other Defendants in favour of the 8th Defendant, was executed in collusion to cause damage to the Plaintiff’s interest and for the wrongful gain of the Defendants.

28.It concluded that the sale deed under Ex.A-4 in favour of the 8th

Defendant was created, fabricated, and a sham transaction, executed to evade the obligation existing in favour of the Plaintiff. With these observations, the trial court held that the Ex.A-1 agreement of sale dated 06.09.2011 was valid and binding on the Defendants. It further held that the 8th Defendant was not a bona fide purchaser and that the merits of the case lay in favour of the Plaintiff.

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29. Accordingly, Issue Nos. 1 and 2 were decided in favour of the Plaintiff, and the suit was decreed, directing the Defendants to execute a regular sale deed.

Grounds of Appeal:

30. Aggrieved by the said impugned Judgment and decree, the Appellants who are the Defendants before the Trial Court had preferred this appeal with the following grounds.

a)The trial court failed to appreciate the evidence and defense of Defendants in proper perspective.

b)The trial court failed to appreciate that the boundaries mentioned in Ex.A-1 agreement of sale and Ex.A-2 are valid.

c)The trial court failed to appreciate that under partition deed, the share allotted to the Defendants is not a complete right to 1st Defendant as Defendants 1 to 4 have also right over the Schedule Property.

d)The trial court failed to appreciate that Ex.B-2 sale deed executed in favour of DW-3 dated 05.05.2011 is valid and which do not create any right to 1st Defendant to execute any alleged agreement of sale.

e)The trial court failed to appreciate that Ex.A-1 agreement of sale

dated 06.09.2011 is subsequent to the Ex.B-2 registered sale

deed dated 05.05.2011.

f)The trial court failed to appreciate that the Plaintiff has sufficient source of income to comply her obligation if at all agreement of sale is considered.

g)The trial court did not appreciate the variation of boundaries in the agreement of sale, partition deed and Ex.A-4.

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h)The trial court failed to appreciate that the Schedule Property under agreement of sale is already sold property by the Defendants 1, 6 and 7. Therefore, the alleged deed should be considered is a created and fabricated document.

i)The trial court failed to appreciate that there is no such agreement of sale between the 1st Defendant and the Plaintiff as the stand of 1st Defendant that on blank stamped and white papers, the husband of Plaintiff has obtained his signatures.

j)The evidence of PW-2 and PW-3, the attestor and scribe is not properly appreciated by the trial court.

k)The trial court did not give any reasons in proper in directing the Defendants 3, 4, 6 and 7 to execute regular sale deed in favour of the Plaintiff when they are not parties to Ex.A-1.

l)The trial court did not give proper reasons, but passed the impugned judgment with surmises and assumptions.

With the said grounds, Appellants/ Defendants sought to allow the

Appeal by setting aside the impugned judgment and decree and dismiss the suit.

Proceedings before the Appellate Court:

31. During the pendency of proceedings, it was reported that the 2nd

Appellant in A.S. No. 31 of 2020 and the 3rd Respondent in A.S. No. 12 of 2021, Smt. Mathey Jeeva Manoharam, passed away on 25.03.2021.

Accordingly, the Appellants in both appeals filed I.A. No. 853 of 2021 and I.A.

No. 183 of 2021 to implead the legal representatives of the late Mathey Jeeva

Manoharam, namely, M. Mercy Beulah and M. Jasmine. These petitions were allowed on 08.09.2022 and 27.07.2022, respectively, and the legal representatives were added as Appellant Nos. 8 and 9 in A.S. No. 31 of 2020 and as Respondent Nos. 9 and 10 in A.S. No. 12 of 2021. Neat copies were subsequently filed.

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Arguments:

32. During the proceedings, the learned counsel for the Defendants filed written arguments in addition to oral submissions, contending that the trial court did not appreciate the facts in their proper perspective. The main argument advanced by the learned counsel for Defendants Sri.

N.V.Satyanarayana is that the 1st Defendant never executed the agreement of sale in favour of the Plaintiff. They asserted that the husband of the Plaintiff had obtained the signatures of the 1st Defendant and Defendants 2 and 3 as attestors on blank white papers in connection with a money transaction, which were later misused for this case.

33Furthermore, the 1st Defendant had no right to execute the alleged

Ex.A-1 agreement of sale dated 06.09.2011, as the property had already been sold on 05.05.2011 by the 1st Defendant along with Defendants 6 and 7 (father, son, and daughter) to Suggala Babu. Even if the agreement of sale is assumed to exist, the 1st Defendant had no authority to execute such a deed, as he held no rights over the property. The trial court failed to appreciate this.

34.Additionally, the trial court overlooked the fact that the partition deed among Defendants 1 to 7, dated 11.03.2011, was cancelled on 18.10.2011.

Even then, the Defendants 1 to 7 executed a sale deed in favour of the 8th

Defendant, which was also cancelled on 17.10.2011. This sequence of events demonstrates that the alleged rights accruing to the 1st Defendant were invalid at all relevant times. Therefore, the trial court failed to properly evaluate the evidence. The evidence of PW-2 and PW-3, the attestor and the scribe, is not credible, and hence the Defendants sought for the appeal to be allowed.

14 35. The learned counsel for the Plaintiff Sri E.Srinivasa Babu argued that the trial court delivered a reasoned judgment, holding that the Ex.A-1 agreement of sale is valid and that the subsequent documents were not executed with honest intent. Therefore, the counsel requested the dismissal of the appeal.

36. In reply, the learned counsel for the Defendants contended that if the

Plaintiff intended to seek relief, she should have sought a declaration of nullity concerning the said documents. No such attempt was made.

Furthermore, since the 1st Defendant had no rights over the property, it was impossible for the agreement of sale to have been validly executed. With these submissions, both learned counsels advanced their arguments.

37. Heard both the learned counsels and perused the record.

Discussion:

38.Considering the facts and circumstances, the issues settled by the trial court, and Points Nos. 1 and 2, which were answered despite the issues, the controversy regarding the validity of Ex.A-1 agreement of sale and the grounds urged in the appeal leads to the following Points for determination:

1) Whether the Ex.A-1 agreement of sale, allegedly executed by the 1st Defendant, is true, valid, and binding on the Defendants, particularly in light of the Ex.B-2 sale deed, cancellation of partition deeds, and cancellation of sale deeds?

2) Whether the grounds urged by the Defendants/Appellants in

A.S. No. 31 of 2020 are valid to justify interfering with the

findings of the trial court and setting aside the impugned judgment and decree?

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3) Whether the grounds urged in A.S. No. 12 of 2021, an appeal preferred by Defendant No. 8 in the suit in view of his remain exparte / claim against him is treated as dismissed do sustain?

4) To what relief?

39.Since Point Nos. 1 and 2 require a combined discussion, both Points are addressed together.

POINT Nos.1 & 2:

1) Whether the Ex.A-1 agreement of sale, allegedly executed by the 1st Defendant, is true, valid, and binding on the Defendants, particularly in light of the Ex.B-2 sale deed, cancellation of partition deeds, and cancellation of sale deeds?

2) Whether the grounds urged by the Defendants/Appellants in

A.S. No. 31 of 2020 are valid to justify interfering with the

findings of the trial court and setting aside the impugned judgment and decree?

40. At the cost of repetition, the Plaintiff’s case is that Defendants 1 to 3 are the son, wife, and daughter of late Mathey Srinivasam. The 4th Defendant is the wife of another son of the 2nd Defendant. The 5th Defendant is the wife of the 1st Defendant, and Defendants 6 and 7 are the children of the 1st

Defendant.

41. The Plaintiff’s case is that Mathey Srinivasam was the owner of the property, who died intestate. It is stated that Defendants 1 to 3 partitioned the property on 11.03.2011. The 1st Defendant received the Plaintiff Schedule

Property as his share. The 1st Defendant approached the Plaintiff and offered to sell the Schedule Property for Rs.5,89,875/- and the Plaintiff paid an advance amount of Rs.50,000/-. The Plaintiff was to pay the balance sale 16 consideration of Rs.2,50,000/- on 30.10.2011 and Rs.2,89,875/- on 30.11.2011, by which date the 1st Defendant was required to complete the process of measurements of the Plaintiff Schedule Property. Accordingly, the terms were agreed upon between the parties.

42. Since the Plaintiff is relying on the alleged Ex.A-1 agreement of sale

dated 06.09.2011, the terms of such a document are relevant to examine.

The terms state that on 17.05.1960, Mathey Srinivasam purchased the property from Jallipalli Pullamma and others. Subsequently, he died intestate.

Thereafter, Defendants 1 to 3 became the owners and partitioned the property. The 1st Defendant then agreed to sell the Schedule Property for

Rs.5,89,875/- on 06.09.2011. On that date, Rs.50,000/- was paid in advance.

The Plaintiff had to pay the balance amount of Rs.2,50,000/- on 30.10.2011 and Rs.2,89,875/- on 30.11.2011. Upon receipt of the amounts, the 1st

Defendant was to execute the regular sale deed. If the Plaintiff failed to pay the amount within the stipulated time, the 1st Defendant could recover the said amount with costs.

43. In the entire document, there is nowhere any mention that the 1st

Defendant was to measure the property. The Schedule Property is an extent of 605 sq. yds. Thus, the prime claim that by 30.11.2011 the 1st Defendant had to measure the property is not a condition in the Ex.A-1 agreement of sale. In fact, the condition is that the Plaintiff must pay the balance amount in two installments by 30.10.2011 and 30.11.2011. Furthermore, the document shows the signature of the 1st Defendant and the attestors, said to be

Defendants 2 and 5, but they are not the executants.

44. The Plaintiff approached the court for relief, and the initial burden lies on her to establish the validity of the Ex.A-1 agreement of sale. To support 17 this, the Plaintiff relied on the evidence of PW-2 and PW-3. PW-2 is B.

Prakash Rao, who is said to be one of the attestors to the Ex.A-1 agreement of sale along with Defendants 2 and 5. He filed a chief affidavit supporting the

Plaintiff’s claim that the agreement of sale was entered into on 06.09.2011 by the 1st Defendant for a total sale consideration of Rs.5,89,875/-, and an advance amount of Rs.50,000/- was paid. He narrated the terms of the agreement and stated that the Defendants avoided complying with their obligations, while the Plaintiff was always willing and ready to perform her part of contract.

45. PW-2 was cross-examined to prove that he was one of the attestors.

He deposed that he used to attend to office work for the Plaintiff’s husband.

The Ex.A-1 transaction took place in the office of the scribe of Ex.A-1, located near the Taluk Office at Chintalapudi. The Plaintiff had called him, and he went to the office of the scribe. By the time he arrived, the Plaintiff,

Defendants 1 and 2, and the 1st attestor were already present. He did not observe whether a rough copy of Ex.A-1 was prepared. He did not know who brought the Ex.A-1 stamp paper. The recitals of the Ex.A-1 agreement of sale were typed using a computer. He did not know how many pages the

Ex.A-1 was prepared in, nor could he recall its contents. He confirmed that

Defendants 1 and 2 are residents of his village. The remaining statements are suggestions which were denied.

46. The specific stand of the Plaintiff is that at the time of the alleged execution of Ex.A-1, she was at the office of the scribe. The Plaintiff, along with Defendants 1 and 2, was present. There is no reference to the scribe's presence. Similarly, there is no mention of the 5th Defendant, who is one of the attestors. The Ex.A-1 agreement of sale is said to have been typed on a computer.

18 47. Sri Shaik Karimullah Baji, the scribe, was examined as PW-3. He filed a chief affidavit stating that he is a document writer. He prepared the Ex.A-1 agreement of sale on 06.09.2011, incorporating the terms therein. He stated that the Plaintiff was ready to fulfil her obligations, but the 1st Defendant failed to comply with his obligation of measuring the property and preparing for registration. The 1st Defendant did not produce the documents pertaining to the Plaint Schedule Property within the stipulated time.

48. During cross-examination, PW-3 deposed that he knows Defendants 1 and 5. The property under Ex.A-1 originally belonged to the father of the 1st

Defendant. He generally advises parties to obtain an encumbrance certificate. In this case, he advised the Plaintiff to obtain the encumbrance certificate, but she did not do so. As per Ex.A-1, the 1st Defendant acquired the property through an oral partition. He scribed the registered partition deed

dated 11.03.2011 between the 1st Defendant, his mother (D2), his sister (D3),

and the 4th Defendant prior to the Ex.A-1 agreement of sale. The 2nd

Defendant signed the Ex.A-1 agreement of sale.

49. PW-3 denied the suggestion that the signatures were invalid. He stated that he was unaware that the Plaint Schedule Property had already been alienated to S.Babu under a sale deed dated 05.05.2011. He denied the suggestion that the 1st Defendant did not execute the Ex.A-1 agreement of sale dated 06.09.2011. He also denied the suggestion that the Plaintiff’s husband had filled the contents of the Ex.A-1 agreement of sale on blank signed stamp papers. He stated that he knows the attestors of Ex.A-1. He further mentioned that he has given evidence as a scribe in four or five court cases. The Plaintiff’s husband came to the court.

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50.The evidence of PW-3 shows that he was the scribe of the partition deed among the Defendants dated 11.03.2011. He is also said to be the scribe of the Ex.A-1 agreement of sale. However, he contends that the 1st

Defendant was required to measure the property by 30.11.2011. As observed, such a condition is not mentioned in the document. At the same time, he narrated that the 2nd Defendant had signed the document, which is contrary, as the 2nd Defendant’s name appears as an attestor but not as a signatory. He claims that the 1st Defendant received his share under the partition deed dated 11.03.2011, which pertains to ancestral property.

51. Regarding the evidence of PW-1, extensive examination was conducted about Ex.A-1 as well as the validity of the sale deed executed in favour of S.Babu dated 05.05.2011. Much of the cross-examination focused on the boundaries of the property, which she denied as being identical to those mentioned in the partition deed and the Ex.A-1 agreement of sale. She stated that she knows the 1st Defendant through her husband. The negotiations for the sale of the property took place between herself and the 1st Defendant. One week prior to the agreement of sale, the negotiations were finalized in the presence of the wife of the 1st Defendant. The 1st

Defendant approached her husband and offered to sell the Plaint Schedule

Property to her.

52. She denied the suggestion that the 1st Defendant approached her husband, requesting a loan, and that her husband lent an amount of

Rs.50,000/- to the 1st Defendant on 06.09.2011. She also denied that her husband obtained blank signed promissory notes, blank signed stamp papers, and blank signed white papers from the 1st Defendant as security for the amount due.

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53. At this stage, it is relevant to consider the stand of the Defendants.

The Defendants claimed that the 1st Defendant borrowed Rs.50,000/- from the Plaintiff’s husband and, for this purpose, provided blank signed papers.

However, they deny that these papers constituted an agreement of sale. If this is compared to the evidence of PW-1, where she states that the 1st

Defendant approached her husband and offered to sell the Plaint Schedule

Property to her, a reasonable doubt arises regarding the propriety of the 1st

Defendant approaching the Plaintiff’s husband instead of the Plaintiff directly to offer the property for sale.

54. There should be an explanation for why the 1st Defendant did not approach the Plaintiff directly for negotiations, if any such negotiations occurred. However, the case presented is that the 1st Defendant approached the Plaintiff’s husband and offered to sell the property to the Plaintiff. The

Plaintiff is a housewife, whereas PW-2, one of the attestors, works under the

Plaintiff’s husband. PW-3 is the scribe who also scribed the partition deed among the Defendants dated 11.03.2011. Considering these facts in relation to the terms of the Ex.A-1 agreement of sale, the burden is heavily on the

Plaintiff to prove that she was to pay the balance amounts on 30.10.2011 and 30.11.2011. However, as per the recitals, there is no obligation on the 1st

Defendant to measure the land. If the payment was not made, the 1st

Defendant had the right to recover costs.

55.At the same time, it is relevant that the Plaintiff claims an advance amount of Rs.50,000/- was paid, whereas the 1st Defendant claims he approached the Plaintiff’s husband, who is a moneylender, for Rs.50,000/-.

This correlates with the statement of PW-1 that the 1st Defendant approached her husband, offering to sell the property to her instead of directly approaching her. There seems to be no necessity or reason for the 1st 21

Defendant to offer the Plaint Schedule Property for sale to the Plaintiff instead of dealing with her husband directly. These inconsistencies raise doubts regarding the validity of the documents.

56. The probable defence by the 1st Defendant is that there was a loan transaction between the Plaintiff’s husband and the 1st Defendant, but not any agreement of sale between the Plaintiff and the 1st Defendant. Many suggestions were made regarding the validity of the documents, which were denied by PW-1. PW-1 further stated that no legal notice was issued on 30.10.2011, 30.11.2011, or prior to these dates, demanding that the 1st

Defendant receive the balance sale consideration.

57.The Defendants contend that the 1st Defendant alone has no right to enter into an agreement of sale with the Plaintiff. The reasons assigned are that the 1st Defendant, along with the other Defendants, sold the property under partition, which was allotted to the 1st Defendant, to Suggala Babu on 05.05.2011. The alleged agreement of sale dated 06.09.2011 is subsequent to the said sale. Therefore, the 1st Defendant had no right to execute any deed, much less the alleged agreement of sale. On 18.10.2011, the partition deed dated 11.03.2011 was cancelled, and on the same date, a sale deed was executed by Defendant Nos.1 to 7 in favour of the 8th Defendant. Thus, the entire property was sold to the 8th Defendant.

58.The 1st Defendant’s stand, apart from this, is that he borrowed

Rs.50,000/- from the Plaintiff’s husband, and the signatures of the 1st 2nd, and 5th Defendants were obtained on blank stamp papers as security.

59.The evidence of the Defendants is now discussed hereunder. The 1st

Defendant, as DW-1, deposed that he is a teacher, the 2nd Defendant is his mother and a retired teacher, the 3rd Defendant is his sister and works as a 22 private teacher, the 4th Defendant is his sister-in-law and a retired teacher, and the 5th Defendant is his wife and also a retired teacher. Thus, Defendant

Nos.1 to 5 are from an educated background and have worked as teachers.

The 6th and 7th Defendants are the son and daughter of the 1st Defendant, while the 8th Defendant is the purchaser.

60. During examination, DW-1 was questioned extensively about the legal notice, where he deposed that the Plaintiff issued a legal notice under Ex.A- 5, and he gave a reply under Ex.A-6. However, he claimed that his counsel,

U.M.S.R. Murthy, gave the reply notice without his instructions. He admitted that he did not go through the contents of the Ex.A-6 reply notice. He denied the suggestion that he is now deposing falsely after issuing the reply notice.

He stated that he never issued any legal notice to the Plaintiff’s husband. He also stated that the property under Ex.A-1 and Ex.A-4 is the same. He claimed that the signatures on Ex.A-1 as attesting witnesses belong to the 2nd and 5th Defendants and that their signatures were obtained on blank papers. He denied colluding with the 8th Defendant to execute Ex.A-4 sale deed for a nominal price. He also denied that Ex.A-4 is a nominal sale deed.

61. DW-1 maintained that the signatures on Ex.A-1 were obtained from the 1st, 2nd, and 5th Defendants on blank white papers. He claimed to be unaware of the contents and stated that Ex.A-6 was given without his instructions.

62. The 3rd Defendant, as DW-2, filed a chief affidavit supporting the 1st

Defendant's claims. During cross-examination, she deposed that the 1st

Defendant is her brother. She stated that she does not know the Plaintiff and that the 1st Defendant borrowed Rs.50,000/- from the Plaintiff’s husband. She claimed her brother instructed the counsel to give a reply to the legal notice.

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She denied the suggestion that the sale deed was executed in favour of the 8th Defendant in collusion.

63.Mr. Suggala Babu, the purchaser under the sale deed dated 05.05.2011, filed a chief affidavit as DW-3, supporting the Defendants. He deposed during cross-examination that he purchased the property on 05.05.2011. He also stated that the 1st Defendant and his family members later purchased the property back from him. He claimed the contents of the cancellation deed dated 17.10.2011 are incorrect. He stated that he is unaware of the Plaintiff's house. DW-3 was examined before the commissioner.

64. Based on the above evidence, when applied to the facts of the case, the Plaintiff claims Ex.A-1 as an agreement of sale. However, as discussed earlier, the Plaintiff has not provided details about her occupation. There is no reference in Ex.A-1 indicating that the 1st Defendant would measure the properties and prepare them for registration. The Trial Court and the Plaintiff have emphasized the reply notice under Ex.A-6 issued by Defendant Nos.1 to 7. Before this, the Plaintiff issued a legal notice under Ex.A-5, contending that the 1st Defendant entered into an agreement of sale with the Plaintiff on 06.09.2011. However, the contents of Ex.A-6 reply notice claim that the

Plaintiff’s husband offered to purchase the property allotted to the 1st

Defendant under the partition deed, paid Rs.50,000/-, and agreed to pay the balance sale consideration. It is alleged that the agreement of sale was prepared with different schedules according to the whims and fancies of the

Plaintiff’s husband. The schedule properties are inconsistent. There was no consensus regarding the properties between the 1st Defendant and the

Plaintiff’s husband. Thus, the contract is deemed to have been frustrated.

The Plaintiff’s husband or the Plaintiff did not comply with their obligations.

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The Plaintiff’s husband expressed an inability to pay the balance sale consideration and agreed to forfeit Rs.50,000/- with a promise to endorse it on the reverse of the said deed.

65. If the Plaintiff’s claim is based on the 1st Defendant’s admission of the sale execution through Ex.A-6, then the entire contents must be considered.

It is undisputed that Ex.A-6 originated from the 1st Defendant. However, the 1st Defendant claims he did not issue any instructions. DW-3, however, supports the assertion that the 1st Defendant instructed his counsel. When considering the validity of Ex.A-6, it cannot be viewed in isolation. The document indicates that the intention was with the Plaintiff’s husband and not the Plaintiff herself. Even the Defendants maintain that the 1st Defendant borrowed Rs.50,000/- from the Plaintiff’s husband. The 1st Defendant asserts there was no consensus between him and the Plaintiff’s husband regarding the schedule property mentioned in the agreement of sale or legal notice, which differs from the properties under the partition deed.

66.These factual aspects, relying on Ex.A-6, indicate that the 1st

Defendant’s stand is that the Plaintiff's husband is the person with whom the 1st Defendant had negotiations and that it was the Plaintiff's husband who obtained the signatures of the 1st Defendant. If this is so, the consensus should be between the Plaintiff's husband and the 1st Defendant. However, the Plaintiff entered the picture, alleging negotiations with the 1st Defendant.

There is no document to prove that the Plaintiff had sufficient income or at least the means to pay Rs.50,000/-. Moreover, there is no evidence that the

Plaintiff had a sufficient source of income subsequently on 30.10.2011 or 31.11.2011. As per Ex.A-1, the condition imposed on the purchaser was that she would pay the balance sale consideration in two installments, failing which the advance amount would stand forfeited. Thus, the contract 25 stipulated a specific timeframe. The Plaintiff did not comply within the specified timeframe. According to Ex.A-6, the Plaintiff's husband agreed to forfeit the amount.

67. If the conditions under Ex.A-6 are considered collectively, it reflects a proposed understanding between the 1st Defendant and the Plaintiff's husband, not with the Plaintiff. The Plaintiff appears to be a mere name lender without any substantial right.

68.Regarding the Defendants' stand, property ownership must exist in favour of a party to transfer it. In the present case, it is undisputed that, as of 05.05.2011, the 1st Defendant did not have ownership of the property under the partition. Section 6 of the Transfer of Property Act, 1882, specifies what kind of property can be transferred. Section 6(d) of the Act states:

“An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.”

In this case, it is undisputed that the 5th Defendant is the 1st

Defendant’s wife, and the 6th and 7th Defendants are his children, who are heirs to his share under the partition. Therefore, the 1st Defendant’s right to sell the property was restricted unless the others consented. This restriction implies limited enjoyment of the property.

69. The Plaintiff has taken the stand that the property was sold by the 1st

Defendant as Kartha. However, this is not pleaded in Ex.A-1. In Ex.A-1, PW- 1 stated that the 1st Defendant acquired the property through oral partition.

However, by the time of the alleged sale, there was an existing document – the partition deed dated 11.03.2011.

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70.Under Section 6 of the Transfer of Property Act, a person can transfer a property on which he has a right. If there is no right, he cannot transfer. In the present case, by the date of the alleged Agreement of Sale, Ex.A1, the property was not in the name of 1st Defendant. It had been transferred to

Suggala Babu / DW3. When there is no property in the name of 1st Defendant on the date of the alleged Agreement of Sale, there arises no right to transfer.

It is not the case that Defendants 1 to 7 are illiterates. Their occupation is as teachers, and it is assumed that they would have worldly knowledge.

Knowing that the property was not in the name of 1st Defendant, it is highly improbable that 1st Defendant would enter into an agreement of sale with his family members as attestors. The family members/attestors are parties to the case, and their stand is the denial of the execution. In such a case, the evidence of PW-2 and PW-3, who are attestors and the scribe, stating that the Agreement of Sale was executed by 1st Defendant, cannot be relied upon in the given circumstances. Furthermore, the stands of PW-2 and PW-3 do not inspire confidence as to the execution of the document.

71. From the above discussion, it is evident that the purported agreement of sale was not supposed to be executed by the 1st Defendant alone with an understanding regarding the plaint schedule property, as there was already a sale deed. Furthermore, there was no consensus between the Plaintiff and the 1st Defendant; rather, the consensus was with the Plaintiff's husband. The 1st Defendant's claim that he borrowed Rs.50,000/- from the Plaintiff’s husband is corroborated by the facts of the case. Even the Plaintiff's document, Ex.A-6, negates her claim, as she is not a party to the document.

When there is a mistake regarding identity and property, the document cannot be binding. In this case, the evidence suggests that it was the 27

Plaintiff's husband who lent the amount. Hence, the Plaintiff has no right to seek relief.

72. Based on the above discussion, this Court finds that the Trial Court's observation that Ex.A-6 reply notice is binding is incorrect. The Trial Court failed to properly appreciate the evidence in granting relief under the Specific

Relief Act, as the Plaintiff was not a party to the transactions. Furthermore, the Plaintiff did not provide evidence of her readiness to comply with the obligations on 30.10.2011 and 31.11.2011 by paying the balance consideration. Simultaneously, the 1st Defendant lacked the right to sell the property, as it had already been sold to Suggala Babu on 05.05.2011. The agreement of sale Ex.A1 is to be held as not true and invalid. Therefore, the grounds raised are relevant for consideration in the appeal. The observations of the Trial Court do not support the Plaintiff's case.

73.Accordingly in this court finds that, the Plaintiff is not directly involved in the negotiations or the transaction with 1st Defendant. It is the Plaintiff’s husband who is involved in the negotiations and payments. The document agreement of sale and oral testimony of PW-1 points out that there is no evidence demonstrating that the Plaintiff had the financial means to pay the balance amount. That, the Agreement of Sale (Ex. A-1) lacks clarity about certain key terms, particularly about the measurement of the land and the responsibility of 1st Defendant measure it. Ex.A-6 reply legal notice specifically replies to the case of Plaintiff that, there is no transaction between the Plaintiff and Defendant No.1. In such case, the Ex. A1, the disputed

Agreement of Sale said to be executed in favor of the Plaintiff cannot be considered as true and valid binding on Defendant. The grounds urged in view of the above discussion do sustain and the appeal in A.S. No.31 of 2020 28 is liable to be allowed, and the suit is dismissed. Accordingly Point No. 1 & 2 are answered.

Point No. 3:

3) Whether the grounds urged in A.S. No. 12 of 2021, an appeal preferred by Defendant No. 8 in the suit in view of his remain exparte / claim against him is treated as dismissed do sustain?

A.S.No.12 of 2021

74. A.S. No. 12 of 2021 has been filed by Defendant No. 8, Chavva

Mallikarjuna Rao, seeking to set aside the impugned decree and judgment

dated 17.02.2020 in O.S. No. 475 of 2012, passed by the Principal Civil

Judge (Senior Division), Eluru, and to dismiss the suit.

75. The grounds raised by 8th Defendant are similar to those of Defendant

Nos. 1 to 7, namely, that the right to the property of 1st Defendant was transferred to Suggala Babu on 05.05.2011, and that the document related to the agreement of sale is invalid. Furthermore, Defendant Nos. 1 to 7 executed a regular sale deed in favour of 8th Defendant on 18.10.2011, after cancelling both the partition deed and the sale deed dated 05.05.2011. As a result, 1st Defendant claims to have valid ownership rights over the schedule property as a purchaser.

76. Before addressing this argument, it is important to note that Defendant

Nos. 1 to 8 were initially ex parte before the Trial Court. Subsequently,

Defendant Nos. 1 to 7 were allowed to come on record after the ex parte order was set aside. However, 8th Defendant did not appear before the Trial

Court at any point. Notably, there was no cross-examination of Plaintiff’s witnesses by 8th Defendant, and the cross-examination of PW-1 was treated 29 as Nil. Additionally, 8th Defendant did not enter the witness box to present his case. In the draft issues, it is clearly recorded that the claim against 8th

Defendant was dismissed. Moreover, no written statement from 8th Defendant is found in the court record.

77.Therefore, unless 8th Defendant follows the proper procedure and takes necessary steps to set aside the ex parte order, the appeal cannot be entertained. 8th Defendant has not argued that the decree was passed as an ex parte decree, nor has he provided any valid reason to challenge the decree on that basis. However, in the earlier appeal, A.S. No. 31 of 2020, this

Court ruled that the appeal was to be allowed, thus setting aside the decree and judgment dated 17.02.2020 in O.S. No. 475 of 2012, as the suit was dismissed. Since 8th Defendant is one of the Defendants in the case, the appeal filed by him cannot be sustained and must therefore be dismissed.

Accordingly Point No. 3 is answered.

Point No. 4: To what relief?

78. Under Point No. 1 & 2, this court concludes that, the Agreement of

Sale, the disputed document Ex.A-1 is not true, valid and binding on

Defendants, and consequently, the appeal to be allowed by setting aside the impugned Judgment and Decree and dismissing the suit. The Point No. 3 is answered as the Appellant/ Defendant No. 8 stand before the trial court is not there and that, the record is inconsistent as to his participation in the suit either exparte or dismissed, and moreover, under Point No. 1 & 2, this court allowed the appeal setting aside the Judgment and Decree and dismissing the suit, the present appeal AS 12 of 2021 do not sustain and liable to be dismissed. The pending interlocutory applications are in view of the findings of this court are hereby closed.

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In the result, the appeal in A.S.No.31 of 2020 is allowed with costs by setting aside the decree and judgment dt.17.02.2020 in O.S.No.475 of 2012 on the file of Principal Civil Judge (Senior Division), Eluru by dismissing the suit in O.S.No.475 of 2012.

Since main appeal is allowed setting aside the decree and Judgment,

I.A.No.475 of 2020 is hereby closed.

In the result, the appeal in A.S.No.12 of 2021 is hereby dismissed since

A.S.No.31 of 2020 is allowed setting aside the decree and judgment

dt.17.02.2020 in O.S.No.475 of 2012 on the file of Principal Civil Judge (Senior Division), Eluru by dismissing the suit in O.S.No.475 of 2012. No costs.

Since main appeal is dismissed, I.A.No.812 of 2021 is hereby closed.

Partly dictated to Stenographer Gr.I and Gr.II, transcribed by them, corrected, signed on the draft Judgment and pronounced by me in open Court on this the 20 th day of January, 2025 and digitally signed.

Digitally signed by C

PURUSHOTTAM

KUMAR

PRINCIPAL DISTRICT JUDGE,

WEST GODAVARI, ELURU.

Copy to:

1. The Principal Civil Judge (Senior Division), Eluru, (along with LC record if any).

2. Sri N.V.Satyanarayana, Advocate for the Appellants.

3. Sri D.Umamaheswara Rao, Advocate for Appellant.

4. Sri E.Srinivasa Babu, Advocate for Respondent.

APWG000017662020

IN THE COURT OF PRINCIPAL DISTRICT JUDGE,

WEST GODAVARI :: ELURU.

Present: PURUSHOTTAM KUMAR CHINTALAPUDI

Principal District Judge,

West Godavari, Eluaru.

Monday, on this the 20th day of January, 2025.

APPEAL SUIT No. 31 of 2020

&

APPEAL SUIT No. 12 of 2021

(O.S.No.475/2012 on the file of Principal Civil Judge

(Senior Division), Eluru)

A.S.No.31 of 2020

Between:

1. Mathey John Devid Samuel…Appellants/Defendants 1

2. Smt.Mathey Jeeva Manoharamto 7 in O.S.No.475 of 2012

3. Mathey Lilly Johnand L.Rs of deceased 2nd

4. Smt.Dasi Swarna KumariAppellant.

5. Ch.Santha Kumari

6. Mathey Suneel Manohar

7. Smt.Komma Priyanka.

8. Mathey Mercy Buleah

9. Mathey Jasmine (Appellant Nos.8 and 9 are added as L.Rs of deceased 2nd Appellant as per orders in I.A.No.853 of 2021, dt.08.09.2022)

And

2

1. Smt.Chintalapati Surya Kumari…Respondents/Plaintiff

2. Chavva Mallikharjuna Raoand D8 in O.S.No.475 of 2012

A.S.No.12 of 2021

Between:

Chavva Mallikharjuna Rao…Appellant/Defendant No.8 in O.S.No.475 of 2012

And

1.Smt.Chintalapati Surya Kumari…Respondents/Plaintiff 2.Mathey John David Samueland D1 to D7 in 3.Mathey Jeeva ManoharamO.S.No.475 of 2012 & 4.Mathey Lilly JohnL.Rs of 3rd respondent. 5.Dasi Swarna Kumari 6.Ch.Santha Kumari 7.Mathey Suneel Manohar 8.Smt.Komma Priyanka 9.Mathey Mercy Buelah 10.Mathey Jasmine (9th and 10th respondents are L.Rs of 3rd respondent and are added as per orders in I.A.No.183 of 2021, dt.27.07.2022)

On appeals filed against the Judgment and Decree dated 17.02.2020 passed in O.S.No.475 of 2012 on the file of Principal Civil Judge (Senior Division), Eluru, and made in:

Between:

Smt.Chintalapati Surya Kumari…Plaintiff

And

1. Sri Mathey John Devid Samuel

2. Smt.Mathey Jeeva Manoharam… Defendants.

3. Mathey Lilli John

4. Smt.Dasi Swarna Kumari 3

5. Ch.Santha Kumari

6. Mathey Suneel Manohar

7. Komma Priyanka

8. Chavva Mallikarjuna Rao

These both Appeals have come on 30.12.2024 for final hearing in the presence of Sri N.V.Satyanarayana, Counsel for Appellants in A.S.No.31 of 2020 and of Sri E.Srinivasa Babu, Counsel for Respondent No.1 and of Sri D.Umamaheswara Rao, Counsel for Respondent No.2 in A.S.No.31 of 2020 and of Sri D.Umamaheswara Rao, Counsel for Appellant in A.S.No.12 of 2021 and of Sri E.Srinivasa Babu, Counsel for Respondent No.1, and of Sri N.V.Satyanarayana, Counsel for Respondent Nos.2 to 10 in A.S.No.12 of 2021 and on hearing both sides and the matter having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

A.S.No.31 of 2020

1. A.S. No. 31 of 2020 is filed by Sri Mathew John David Samuel and six others against Chintalapati Suryakumari (the Plaintiff) and Chavva

Mallikarjuna Rao (Defendant No. 8). Respondent No. 1, Chintalapati

Suryakumari, originally filed the suit O.S. No. 475 of 2012 on the file of the

Principal Civil Judge (Senior Division), Eluru, seeking the relief of specific

performance, directing Appellant Nos. 1 to 7 and Respondent No. 8 to execute a regular sale deed upon receiving the balance of sale consideration from her, or alternatively, for the refund of the advance amount of Rs50,000/- with interest.

2. The Trial Court, vide the impugned judgment dated 17.02.2020, decreed the suit in favour of Chintalapati Suryakumari, granting the decree of specific performance, directing the execution of the regular sale deed in favour of Chintalapati Suryakumari upon receiving the balance of sale consideration.

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3. Dissatisfied with the said impugned judgment, Defendant Nos. 1 to 7 preferred the appeal in A.S. No. 31 of 2020. Defendant No. 8 preferred an appeal against the same impugned judgment and decree in A.S. No. 12 of 2021, wherein he referred to the Plaintiff as Respondent No. 1 in the said appeal, and the Appellants herein as Respondents 2 to 8. Since both appeals arose out of the same impugned judgment and decree, a common judgment was pronounced.

4. Appellants and Respondents are represented through their respective counsels. For better appreciation, the parties are referred to as they were

before the Trial Court: Respondent No. 1 as the Plaintiff, Appellants 1 to 7 as

Defendants 1 to 7, and Respondent No. 8 as Defendant No. 8. The impleaded parties, Appellants No. 9 and 10, are the legal representatives of the deceased second Defendant.

Brief Facts of the Case:

5. The Plaintiff pleaded that Defendants 1 to 4 had partitioned their joint family properties on 11.03.2011 through a valid registered partition deed.

Thereafter, the 1st Defendant executed an agreement of sale with the Plaintiff on 06.09.2011, agreeing to sell the plaint schedule property, which had been allocated to his share, for a total consideration of Rs.5,89,875/-. The Plaintiff paid an advance amount of Rs.50,000/-, and the terms and conditions were entered into writing on a stamp paper. The Plaintiff was to pay Rs.2,50,000/- by 30.10.2011 and Rs.2,89,875/- by 30.11.2011, by which time the 1st

Defendant, Mathew John David Samuel, was required to complete the measurement of the schedule property.

5

6. The Plaintiff was ready with the cash and requested the 1st Defendant to receive the amount by 30.10.2011, but the 1st Defendant neither received the payment nor measured the property or prepared for registration. The

Plaintiff later came to know that Defendant Nos. 1 to 7 had executed a regular sale deed in favour of Defendant No. 8. Upon obtaining copies from the concerned authorities, the Plaintiff discovered that the partition entered into by Defendant Nos.1 to 4 had been canceled on 18.10.2011, and on the same date, a sale deed had been executed in favour of 8th Defendant.

7. The cancellation of the partition and execution of the sale deed in favour of 8th Defendant were not binding on the Plaintiff, as the 1st Defendant had entered into the agreement of sale with the Plaintiff concerning his share as the Kartha of the joint family. The Plaintiff claimed to have been ready with the cash and issued a legal notice on 03.01.2012 requesting the Defendants to perform their obligation. The Defendants, except 8th Defendant8, issued a reply on 18.01.2012 with false allegations. Consequently, the Plaintiff filed the suit for specific performance based on the agreement of sale.

Status of Defendants before trial court:

8.It is relevant to mention that Defendant Nos.1 to 8, for not filing written statements, were set ex parte as per the docket proceedings dated 25.03.2013. Subsequently, Defendant Nos. 1 to 7 alone filed an application to set aside the ex parte order, which was allowed on 08.03.2017 and they contested the case. As per the draft settled issues, the claim against 8th

Defendant is dismissed.

6

Defense of D1 to D7:

9.The 1st Defendant filed a written statement, which was adopted by

Defendant Nos. 2 to 7.

10. The Defendants’ stance is a complete denial of the execution of the agreement of sale in favour of the Plaintiff. They denied that the 1st Defendant had received any advance sale consideration or executed any agreement of sale for a total sale consideration of Rs.5,89,875/- at any point in time. The 1st

Defendant never entered into the agreement of sale with the Plaintiff. They also denied that the Plaintiff agreed to pay the sale amount in installments.

11. The 1st Defendant’s position is that his father, Mathe Srinivasam, purchased the plaint schedule and other properties under a registered sale deed dated 17.05.1960 from Jallipalli Pullamma and others. Since then, he was in possession and enjoyment of the property. He died intestate, leaving behind the Defendant Nos.1 to 4 as Class I legal heirs.

12. When the 1st Defendant was in need of money, he approached the

Plaintiff's husband, requesting him to arrange Rs.50,000/-. The Plaintiff’s husband, an unauthorized moneylender, agreed to provide the amount but insisted that the 1st Defendant and his family members sign blank stamp papers and white papers, providing assurance that the signatures were only for security purposes. Believing the Plaintiff and under financial distress,

Defendant Nos.1 to 4 signed blank stamp papers, white papers, and blank promissory notes. The Plaintiff’s husband allegedly took advantage of these blank documents to fabricate the agreement of sale dated 06.09.2011.

13. The Defendants further contended that the boundaries of the property that fell to the share of the 1st Defendant differ from those mentioned in the 7 alleged agreement of sale. The 1st Defendant claimed he had no independent title over the property.

14. The Defendants pleaded that the property also involves the share of other family members as per the partition deed. After the partition on 11.03.2011, the 1st Defendant sold 605 sq. yards of the property to one

Suggala Babu on 05.05.2011. Thus, as of the date of the alleged agreement of sale, the 1st Defendant had no title to enter into any contract. Additionally, the alleged agreement of sale is not valid as the 1st Defendant was not solely entitled to execute such an agreement.

15. The properties are joint family properties. The share of the 1st

Defendant, determined on 11.03.2011, remained part of the joint family with his family members. The 1st Defendant, along with D1 to D4, executed a sale deed in favour of Suggala Babu on 05.05.2011. However, on 17.10.2011,

Suggala Babu executed a cancellation deed for his sale deed with the family members of the 1st Defendant.

16. Dissatisfied with the partition, the family members of 1st Defendant agreed to cancel the partition deed on 17.10.2011. Consequently, the earlier partition deed was cancelled, and they obtained a cancellation deed from

Suggala Babu. Upon cancellation, the property reverted to joint family ownership.

17. The Defendants asserted that the agreement of sale is a fabricated document created by the Plaintiff’s husband using blank stamp papers. They claimed that the property described in the schedule did not exist as of the date of execution of the alleged agreement of sale.

8

18. They also refuted the admission of the agreement of sale in their legal reply notice, attributing the error to their counsel, who acted without proper instructions. Since the partition was cancelled, even if the 1st Defendant had any right over the property, it would have become void. The Defendants argued that a decree for specific performance could not be granted as the

Plaintiff lacked equity.

19. The Defendants denied agreeing to measure the property, denied fraud in executing the cancellation deed or the sale deed in favour of Suggala

Babu, and denied the Plaintiff’s readiness to pay the balance sale consideration. They also claimed that Defendant Nos. 2 to 7 are not necessary parties.

20. The Defendants contended that the suit is not maintainable without seeking the relief of declaration. As such, they argued that the Plaintiff is not entitled to seek specific performance or any relief and sought dismissal of the suit.

Issues:

21.With the above factual aspects, the trial court has settled the following issues.

1) Whether the Plaintiff is entitled for the relief of specific performance of contract as prayed for or not?

2) Whether the Plaintiff is entitled for alternative relief of refund of money Rs.50,000/- with interest at the rate of 24% per annum, as prayed for or not?

3) To what relief?

9

Evidence:

22. Before the trial court, both parties have let in evidence. Plaintiff examined herself as PW-1, examined B. Prakasa Rao, said to be one of the attestors of agreement of sale as PW-2 and examined Shaik Karimulla Baji, said to be scribe of agreement of sale as PW-3. The Plaintiff exhibited Ex.A- 1 to Ex.A-6, which are agreement of sale, certified copy of registered partition deed, certified copy of revocation deed, certified copy of registered sale deed, office copy of legal notice and reply notice.

23. The Defendants examined 1st Defendant as DW-1, examined 3rd

Defendant as DW-2 and one S.Babu as DW-3. Ex.B-1 to Ex.B-4, which are certified copies of partition deed, registered sale deed and two cancellation deeds are marked.

Observation of the Trial Court:

24. Before the trial court, both parties advanced their arguments and also filed written arguments. Upon hearing from both sides, the trial court addressed Issue Nos.1 and 2 together. However, under Issue Nos.1 and 2, the trial court framed an additional Point No. 1, which is as follows:

Whether the Plaintiff could establish the contents of Ex.A-1 agreement of sale and the due execution of the agreement of sale by the 1st Defendant in the presence of attestors and the scribe or not? Whether the Plaintiff could establish the passing of part consideration to the 1st Defendant under Ex.A-1 agreement of sale in the presence of attestors and the scribe or not? Whether the Plaintiff demonstrated her readiness and willingness to perform her part of the promise or not? Whether the Plaintiff is entitled to seek the relief of specific performance of the agreement of sale and also entitled to obtain a regular sale deed from the Defendants on payment of the balance sale consideration or not?

10

25.The trial court, while discussing the evidence, appears to have relied on Ex.A-5, the legal notice issued by the Plaintiff to the 1st Defendant. It observed that Ex.A-5 clearly reveals that the Plaintiff was always ready and willing to perform her part of the promise and to pay the balance sale consideration to the 1st Defendant under Ex.A-1 agreement of sale. The

Plaintiff's readiness and willingness were established through Ex.A-5.

26. Ex.A-5 coincides with and is connected to the evidence of PW-1. This is cogent and conventional material, supported by both documentary and oral evidence, corroborating Ex.A-1. Consequently, the trial court found the genuineness of Ex.A-1 to be established and held that the Defendant failed to perform his obligation. Therefore, the Plaintiff was held entitled to the relief sought.

27.The trial court also addressed Point No.2, observing that the

Defendants failed to disprove the contents of Ex.A-1 and the documentary evidence. The evidence of DW-3 was found to be unsupportive. The court held that the nominal sale deed dated 18.10.2011, allegedly executed by the 1st Defendant along with other Defendants in favour of the 8th Defendant, was executed in collusion to cause damage to the Plaintiff’s interest and for the wrongful gain of the Defendants.

28.It concluded that the sale deed under Ex.A-4 in favour of the 8th

Defendant was created, fabricated, and a sham transaction, executed to evade the obligation existing in favour of the Plaintiff. With these observations, the trial court held that the Ex.A-1 agreement of sale dated 06.09.2011 was valid and binding on the Defendants. It further held that the 8th Defendant was not a bona fide purchaser and that the merits of the case lay in favour of the Plaintiff.

11

29. Accordingly, Issue Nos. 1 and 2 were decided in favour of the Plaintiff, and the suit was decreed, directing the Defendants to execute a regular sale deed.

Grounds of Appeal:

30. Aggrieved by the said impugned Judgment and decree, the Appellants who are the Defendants before the Trial Court had preferred this appeal with the following grounds.

a)The trial court failed to appreciate the evidence and defense of Defendants in proper perspective.

b)The trial court failed to appreciate that the boundaries mentioned in Ex.A-1 agreement of sale and Ex.A-2 are valid.

c)The trial court failed to appreciate that under partition deed, the share allotted to the Defendants is not a complete right to 1st Defendant as Defendants 1 to 4 have also right over the Schedule Property.

d)The trial court failed to appreciate that Ex.B-2 sale deed executed in favour of DW-3 dated 05.05.2011 is valid and which do not create any right to 1st Defendant to execute any alleged agreement of sale.

e)The trial court failed to appreciate that Ex.A-1 agreement of sale

dated 06.09.2011 is subsequent to the Ex.B-2 registered sale

deed dated 05.05.2011.

f)The trial court failed to appreciate that the Plaintiff has sufficient source of income to comply her obligation if at all agreement of sale is considered.

g)The trial court did not appreciate the variation of boundaries in the agreement of sale, partition deed and Ex.A-4.

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h)The trial court failed to appreciate that the Schedule Property under agreement of sale is already sold property by the Defendants 1, 6 and 7. Therefore, the alleged deed should be considered is a created and fabricated document.

i)The trial court failed to appreciate that there is no such agreement of sale between the 1st Defendant and the Plaintiff as the stand of 1st Defendant that on blank stamped and white papers, the husband of Plaintiff has obtained his signatures.

j)The evidence of PW-2 and PW-3, the attestor and scribe is not properly appreciated by the trial court.

k)The trial court did not give any reasons in proper in directing the Defendants 3, 4, 6 and 7 to execute regular sale deed in favour of the Plaintiff when they are not parties to Ex.A-1.

l)The trial court did not give proper reasons, but passed the impugned judgment with surmises and assumptions.

With the said grounds, Appellants/ Defendants sought to allow the

Appeal by setting aside the impugned judgment and decree and dismiss the suit.

Proceedings before the Appellate Court:

31. During the pendency of proceedings, it was reported that the 2nd

Appellant in A.S. No. 31 of 2020 and the 3rd Respondent in A.S. No. 12 of 2021, Smt. Mathey Jeeva Manoharam, passed away on 25.03.2021.

Accordingly, the Appellants in both appeals filed I.A. No. 853 of 2021 and I.A.

No. 183 of 2021 to implead the legal representatives of the late Mathey Jeeva

Manoharam, namely, M. Mercy Beulah and M. Jasmine. These petitions were allowed on 08.09.2022 and 27.07.2022, respectively, and the legal representatives were added as Appellant Nos. 8 and 9 in A.S. No. 31 of 2020 and as Respondent Nos. 9 and 10 in A.S. No. 12 of 2021. Neat copies were subsequently filed.

13

Arguments:

32. During the proceedings, the learned counsel for the Defendants filed written arguments in addition to oral submissions, contending that the trial court did not appreciate the facts in their proper perspective. The main argument advanced by the learned counsel for Defendants Sri.

N.V.Satyanarayana is that the 1st Defendant never executed the agreement of sale in favour of the Plaintiff. They asserted that the husband of the Plaintiff had obtained the signatures of the 1st Defendant and Defendants 2 and 3 as attestors on blank white papers in connection with a money transaction, which were later misused for this case.

33Furthermore, the 1st Defendant had no right to execute the alleged

Ex.A-1 agreement of sale dated 06.09.2011, as the property had already been sold on 05.05.2011 by the 1st Defendant along with Defendants 6 and 7 (father, son, and daughter) to Suggala Babu. Even if the agreement of sale is assumed to exist, the 1st Defendant had no authority to execute such a deed, as he held no rights over the property. The trial court failed to appreciate this.

34.Additionally, the trial court overlooked the fact that the partition deed among Defendants 1 to 7, dated 11.03.2011, was cancelled on 18.10.2011.

Even then, the Defendants 1 to 7 executed a sale deed in favour of the 8th

Defendant, which was also cancelled on 17.10.2011. This sequence of events demonstrates that the alleged rights accruing to the 1st Defendant were invalid at all relevant times. Therefore, the trial court failed to properly evaluate the evidence. The evidence of PW-2 and PW-3, the attestor and the scribe, is not credible, and hence the Defendants sought for the appeal to be allowed.

14 35. The learned counsel for the Plaintiff Sri E.Srinivasa Babu argued that the trial court delivered a reasoned judgment, holding that the Ex.A-1 agreement of sale is valid and that the subsequent documents were not executed with honest intent. Therefore, the counsel requested the dismissal of the appeal.

36. In reply, the learned counsel for the Defendants contended that if the

Plaintiff intended to seek relief, she should have sought a declaration of nullity concerning the said documents. No such attempt was made.

Furthermore, since the 1st Defendant had no rights over the property, it was impossible for the agreement of sale to have been validly executed. With these submissions, both learned counsels advanced their arguments.

37. Heard both the learned counsels and perused the record.

Discussion:

38.Considering the facts and circumstances, the issues settled by the trial court, and Points Nos. 1 and 2, which were answered despite the issues, the controversy regarding the validity of Ex.A-1 agreement of sale and the grounds urged in the appeal leads to the following Points for determination:

1) Whether the Ex.A-1 agreement of sale, allegedly executed by the 1st Defendant, is true, valid, and binding on the Defendants, particularly in light of the Ex.B-2 sale deed, cancellation of partition deeds, and cancellation of sale deeds?

2) Whether the grounds urged by the Defendants/Appellants in

A.S. No. 31 of 2020 are valid to justify interfering with the

findings of the trial court and setting aside the impugned judgment and decree?

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3) Whether the grounds urged in A.S. No. 12 of 2021, an appeal preferred by Defendant No. 8 in the suit in view of his remain exparte / claim against him is treated as dismissed do sustain?

4) To what relief?

39.Since Point Nos. 1 and 2 require a combined discussion, both Points are addressed together.

POINT Nos.1 & 2:

1) Whether the Ex.A-1 agreement of sale, allegedly executed by the 1st Defendant, is true, valid, and binding on the Defendants, particularly in light of the Ex.B-2 sale deed, cancellation of partition deeds, and cancellation of sale deeds?

2) Whether the grounds urged by the Defendants/Appellants in

A.S. No. 31 of 2020 are valid to justify interfering with the

findings of the trial court and setting aside the impugned judgment and decree?

40. At the cost of repetition, the Plaintiff’s case is that Defendants 1 to 3 are the son, wife, and daughter of late Mathey Srinivasam. The 4th Defendant is the wife of another son of the 2nd Defendant. The 5th Defendant is the wife of the 1st Defendant, and Defendants 6 and 7 are the children of the 1st

Defendant.

41. The Plaintiff’s case is that Mathey Srinivasam was the owner of the property, who died intestate. It is stated that Defendants 1 to 3 partitioned the property on 11.03.2011. The 1st Defendant received the Plaintiff Schedule

Property as his share. The 1st Defendant approached the Plaintiff and offered to sell the Schedule Property for Rs.5,89,875/- and the Plaintiff paid an advance amount of Rs.50,000/-. The Plaintiff was to pay the balance sale 16 consideration of Rs.2,50,000/- on 30.10.2011 and Rs.2,89,875/- on 30.11.2011, by which date the 1st Defendant was required to complete the process of measurements of the Plaintiff Schedule Property. Accordingly, the terms were agreed upon between the parties.

42. Since the Plaintiff is relying on the alleged Ex.A-1 agreement of sale

dated 06.09.2011, the terms of such a document are relevant to examine.

The terms state that on 17.05.1960, Mathey Srinivasam purchased the property from Jallipalli Pullamma and others. Subsequently, he died intestate.

Thereafter, Defendants 1 to 3 became the owners and partitioned the property. The 1st Defendant then agreed to sell the Schedule Property for

Rs.5,89,875/- on 06.09.2011. On that date, Rs.50,000/- was paid in advance.

The Plaintiff had to pay the balance amount of Rs.2,50,000/- on 30.10.2011 and Rs.2,89,875/- on 30.11.2011. Upon receipt of the amounts, the 1st

Defendant was to execute the regular sale deed. If the Plaintiff failed to pay the amount within the stipulated time, the 1st Defendant could recover the said amount with costs.

43. In the entire document, there is nowhere any mention that the 1st

Defendant was to measure the property. The Schedule Property is an extent of 605 sq. yds. Thus, the prime claim that by 30.11.2011 the 1st Defendant had to measure the property is not a condition in the Ex.A-1 agreement of sale. In fact, the condition is that the Plaintiff must pay the balance amount in two installments by 30.10.2011 and 30.11.2011. Furthermore, the document shows the signature of the 1st Defendant and the attestors, said to be

Defendants 2 and 5, but they are not the executants.

44. The Plaintiff approached the court for relief, and the initial burden lies on her to establish the validity of the Ex.A-1 agreement of sale. To support 17 this, the Plaintiff relied on the evidence of PW-2 and PW-3. PW-2 is B.

Prakash Rao, who is said to be one of the attestors to the Ex.A-1 agreement of sale along with Defendants 2 and 5. He filed a chief affidavit supporting the

Plaintiff’s claim that the agreement of sale was entered into on 06.09.2011 by the 1st Defendant for a total sale consideration of Rs.5,89,875/-, and an advance amount of Rs.50,000/- was paid. He narrated the terms of the agreement and stated that the Defendants avoided complying with their obligations, while the Plaintiff was always willing and ready to perform her part of contract.

45. PW-2 was cross-examined to prove that he was one of the attestors.

He deposed that he used to attend to office work for the Plaintiff’s husband.

The Ex.A-1 transaction took place in the office of the scribe of Ex.A-1, located near the Taluk Office at Chintalapudi. The Plaintiff had called him, and he went to the office of the scribe. By the time he arrived, the Plaintiff,

Defendants 1 and 2, and the 1st attestor were already present. He did not observe whether a rough copy of Ex.A-1 was prepared. He did not know who brought the Ex.A-1 stamp paper. The recitals of the Ex.A-1 agreement of sale were typed using a computer. He did not know how many pages the

Ex.A-1 was prepared in, nor could he recall its contents. He confirmed that

Defendants 1 and 2 are residents of his village. The remaining statements are suggestions which were denied.

46. The specific stand of the Plaintiff is that at the time of the alleged execution of Ex.A-1, she was at the office of the scribe. The Plaintiff, along with Defendants 1 and 2, was present. There is no reference to the scribe's presence. Similarly, there is no mention of the 5th Defendant, who is one of the attestors. The Ex.A-1 agreement of sale is said to have been typed on a computer.

18 47. Sri Shaik Karimullah Baji, the scribe, was examined as PW-3. He filed a chief affidavit stating that he is a document writer. He prepared the Ex.A-1 agreement of sale on 06.09.2011, incorporating the terms therein. He stated that the Plaintiff was ready to fulfil her obligations, but the 1st Defendant failed to comply with his obligation of measuring the property and preparing for registration. The 1st Defendant did not produce the documents pertaining to the Plaint Schedule Property within the stipulated time.

48. During cross-examination, PW-3 deposed that he knows Defendants 1 and 5. The property under Ex.A-1 originally belonged to the father of the 1st

Defendant. He generally advises parties to obtain an encumbrance certificate. In this case, he advised the Plaintiff to obtain the encumbrance certificate, but she did not do so. As per Ex.A-1, the 1st Defendant acquired the property through an oral partition. He scribed the registered partition deed

dated 11.03.2011 between the 1st Defendant, his mother (D2), his sister (D3),

and the 4th Defendant prior to the Ex.A-1 agreement of sale. The 2nd

Defendant signed the Ex.A-1 agreement of sale.

49. PW-3 denied the suggestion that the signatures were invalid. He stated that he was unaware that the Plaint Schedule Property had already been alienated to S.Babu under a sale deed dated 05.05.2011. He denied the suggestion that the 1st Defendant did not execute the Ex.A-1 agreement of sale dated 06.09.2011. He also denied the suggestion that the Plaintiff’s husband had filled the contents of the Ex.A-1 agreement of sale on blank signed stamp papers. He stated that he knows the attestors of Ex.A-1. He further mentioned that he has given evidence as a scribe in four or five court cases. The Plaintiff’s husband came to the court.

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50.The evidence of PW-3 shows that he was the scribe of the partition deed among the Defendants dated 11.03.2011. He is also said to be the scribe of the Ex.A-1 agreement of sale. However, he contends that the 1st

Defendant was required to measure the property by 30.11.2011. As observed, such a condition is not mentioned in the document. At the same time, he narrated that the 2nd Defendant had signed the document, which is contrary, as the 2nd Defendant’s name appears as an attestor but not as a signatory. He claims that the 1st Defendant received his share under the partition deed dated 11.03.2011, which pertains to ancestral property.

51. Regarding the evidence of PW-1, extensive examination was conducted about Ex.A-1 as well as the validity of the sale deed executed in favour of S.Babu dated 05.05.2011. Much of the cross-examination focused on the boundaries of the property, which she denied as being identical to those mentioned in the partition deed and the Ex.A-1 agreement of sale. She stated that she knows the 1st Defendant through her husband. The negotiations for the sale of the property took place between herself and the 1st Defendant. One week prior to the agreement of sale, the negotiations were finalized in the presence of the wife of the 1st Defendant. The 1st

Defendant approached her husband and offered to sell the Plaint Schedule

Property to her.

52. She denied the suggestion that the 1st Defendant approached her husband, requesting a loan, and that her husband lent an amount of

Rs.50,000/- to the 1st Defendant on 06.09.2011. She also denied that her husband obtained blank signed promissory notes, blank signed stamp papers, and blank signed white papers from the 1st Defendant as security for the amount due.

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53. At this stage, it is relevant to consider the stand of the Defendants.

The Defendants claimed that the 1st Defendant borrowed Rs.50,000/- from the Plaintiff’s husband and, for this purpose, provided blank signed papers.

However, they deny that these papers constituted an agreement of sale. If this is compared to the evidence of PW-1, where she states that the 1st

Defendant approached her husband and offered to sell the Plaint Schedule

Property to her, a reasonable doubt arises regarding the propriety of the 1st

Defendant approaching the Plaintiff’s husband instead of the Plaintiff directly to offer the property for sale.

54. There should be an explanation for why the 1st Defendant did not approach the Plaintiff directly for negotiations, if any such negotiations occurred. However, the case presented is that the 1st Defendant approached the Plaintiff’s husband and offered to sell the property to the Plaintiff. The

Plaintiff is a housewife, whereas PW-2, one of the attestors, works under the

Plaintiff’s husband. PW-3 is the scribe who also scribed the partition deed among the Defendants dated 11.03.2011. Considering these facts in relation to the terms of the Ex.A-1 agreement of sale, the burden is heavily on the

Plaintiff to prove that she was to pay the balance amounts on 30.10.2011 and 30.11.2011. However, as per the recitals, there is no obligation on the 1st

Defendant to measure the land. If the payment was not made, the 1st

Defendant had the right to recover costs.

55.At the same time, it is relevant that the Plaintiff claims an advance amount of Rs.50,000/- was paid, whereas the 1st Defendant claims he approached the Plaintiff’s husband, who is a moneylender, for Rs.50,000/-.

This correlates with the statement of PW-1 that the 1st Defendant approached her husband, offering to sell the property to her instead of directly approaching her. There seems to be no necessity or reason for the 1st 21

Defendant to offer the Plaint Schedule Property for sale to the Plaintiff instead of dealing with her husband directly. These inconsistencies raise doubts regarding the validity of the documents.

56. The probable defence by the 1st Defendant is that there was a loan transaction between the Plaintiff’s husband and the 1st Defendant, but not any agreement of sale between the Plaintiff and the 1st Defendant. Many suggestions were made regarding the validity of the documents, which were denied by PW-1. PW-1 further stated that no legal notice was issued on 30.10.2011, 30.11.2011, or prior to these dates, demanding that the 1st

Defendant receive the balance sale consideration.

57.The Defendants contend that the 1st Defendant alone has no right to enter into an agreement of sale with the Plaintiff. The reasons assigned are that the 1st Defendant, along with the other Defendants, sold the property under partition, which was allotted to the 1st Defendant, to Suggala Babu on 05.05.2011. The alleged agreement of sale dated 06.09.2011 is subsequent to the said sale. Therefore, the 1st Defendant had no right to execute any deed, much less the alleged agreement of sale. On 18.10.2011, the partition deed dated 11.03.2011 was cancelled, and on the same date, a sale deed was executed by Defendant Nos.1 to 7 in favour of the 8th Defendant. Thus, the entire property was sold to the 8th Defendant.

58.The 1st Defendant’s stand, apart from this, is that he borrowed

Rs.50,000/- from the Plaintiff’s husband, and the signatures of the 1st 2nd, and 5th Defendants were obtained on blank stamp papers as security.

59.The evidence of the Defendants is now discussed hereunder. The 1st

Defendant, as DW-1, deposed that he is a teacher, the 2nd Defendant is his mother and a retired teacher, the 3rd Defendant is his sister and works as a 22 private teacher, the 4th Defendant is his sister-in-law and a retired teacher, and the 5th Defendant is his wife and also a retired teacher. Thus, Defendant

Nos.1 to 5 are from an educated background and have worked as teachers.

The 6th and 7th Defendants are the son and daughter of the 1st Defendant, while the 8th Defendant is the purchaser.

60. During examination, DW-1 was questioned extensively about the legal notice, where he deposed that the Plaintiff issued a legal notice under Ex.A- 5, and he gave a reply under Ex.A-6. However, he claimed that his counsel,

U.M.S.R. Murthy, gave the reply notice without his instructions. He admitted that he did not go through the contents of the Ex.A-6 reply notice. He denied the suggestion that he is now deposing falsely after issuing the reply notice.

He stated that he never issued any legal notice to the Plaintiff’s husband. He also stated that the property under Ex.A-1 and Ex.A-4 is the same. He claimed that the signatures on Ex.A-1 as attesting witnesses belong to the 2nd and 5th Defendants and that their signatures were obtained on blank papers. He denied colluding with the 8th Defendant to execute Ex.A-4 sale deed for a nominal price. He also denied that Ex.A-4 is a nominal sale deed.

61. DW-1 maintained that the signatures on Ex.A-1 were obtained from the 1st, 2nd, and 5th Defendants on blank white papers. He claimed to be unaware of the contents and stated that Ex.A-6 was given without his instructions.

62. The 3rd Defendant, as DW-2, filed a chief affidavit supporting the 1st

Defendant's claims. During cross-examination, she deposed that the 1st

Defendant is her brother. She stated that she does not know the Plaintiff and that the 1st Defendant borrowed Rs.50,000/- from the Plaintiff’s husband. She claimed her brother instructed the counsel to give a reply to the legal notice.

23

She denied the suggestion that the sale deed was executed in favour of the 8th Defendant in collusion.

63.Mr. Suggala Babu, the purchaser under the sale deed dated 05.05.2011, filed a chief affidavit as DW-3, supporting the Defendants. He deposed during cross-examination that he purchased the property on 05.05.2011. He also stated that the 1st Defendant and his family members later purchased the property back from him. He claimed the contents of the cancellation deed dated 17.10.2011 are incorrect. He stated that he is unaware of the Plaintiff's house. DW-3 was examined before the commissioner.

64. Based on the above evidence, when applied to the facts of the case, the Plaintiff claims Ex.A-1 as an agreement of sale. However, as discussed earlier, the Plaintiff has not provided details about her occupation. There is no reference in Ex.A-1 indicating that the 1st Defendant would measure the properties and prepare them for registration. The Trial Court and the Plaintiff have emphasized the reply notice under Ex.A-6 issued by Defendant Nos.1 to 7. Before this, the Plaintiff issued a legal notice under Ex.A-5, contending that the 1st Defendant entered into an agreement of sale with the Plaintiff on 06.09.2011. However, the contents of Ex.A-6 reply notice claim that the

Plaintiff’s husband offered to purchase the property allotted to the 1st

Defendant under the partition deed, paid Rs.50,000/-, and agreed to pay the balance sale consideration. It is alleged that the agreement of sale was prepared with different schedules according to the whims and fancies of the

Plaintiff’s husband. The schedule properties are inconsistent. There was no consensus regarding the properties between the 1st Defendant and the

Plaintiff’s husband. Thus, the contract is deemed to have been frustrated.

The Plaintiff’s husband or the Plaintiff did not comply with their obligations.

24

The Plaintiff’s husband expressed an inability to pay the balance sale consideration and agreed to forfeit Rs.50,000/- with a promise to endorse it on the reverse of the said deed.

65. If the Plaintiff’s claim is based on the 1st Defendant’s admission of the sale execution through Ex.A-6, then the entire contents must be considered.

It is undisputed that Ex.A-6 originated from the 1st Defendant. However, the 1st Defendant claims he did not issue any instructions. DW-3, however, supports the assertion that the 1st Defendant instructed his counsel. When considering the validity of Ex.A-6, it cannot be viewed in isolation. The document indicates that the intention was with the Plaintiff’s husband and not the Plaintiff herself. Even the Defendants maintain that the 1st Defendant borrowed Rs.50,000/- from the Plaintiff’s husband. The 1st Defendant asserts there was no consensus between him and the Plaintiff’s husband regarding the schedule property mentioned in the agreement of sale or legal notice, which differs from the properties under the partition deed.

66.These factual aspects, relying on Ex.A-6, indicate that the 1st

Defendant’s stand is that the Plaintiff's husband is the person with whom the 1st Defendant had negotiations and that it was the Plaintiff's husband who obtained the signatures of the 1st Defendant. If this is so, the consensus should be between the Plaintiff's husband and the 1st Defendant. However, the Plaintiff entered the picture, alleging negotiations with the 1st Defendant.

There is no document to prove that the Plaintiff had sufficient income or at least the means to pay Rs.50,000/-. Moreover, there is no evidence that the

Plaintiff had a sufficient source of income subsequently on 30.10.2011 or 31.11.2011. As per Ex.A-1, the condition imposed on the purchaser was that she would pay the balance sale consideration in two installments, failing which the advance amount would stand forfeited. Thus, the contract 25 stipulated a specific timeframe. The Plaintiff did not comply within the specified timeframe. According to Ex.A-6, the Plaintiff's husband agreed to forfeit the amount.

67. If the conditions under Ex.A-6 are considered collectively, it reflects a proposed understanding between the 1st Defendant and the Plaintiff's husband, not with the Plaintiff. The Plaintiff appears to be a mere name lender without any substantial right.

68.Regarding the Defendants' stand, property ownership must exist in favour of a party to transfer it. In the present case, it is undisputed that, as of 05.05.2011, the 1st Defendant did not have ownership of the property under the partition. Section 6 of the Transfer of Property Act, 1882, specifies what kind of property can be transferred. Section 6(d) of the Act states:

“An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.”

In this case, it is undisputed that the 5th Defendant is the 1st

Defendant’s wife, and the 6th and 7th Defendants are his children, who are heirs to his share under the partition. Therefore, the 1st Defendant’s right to sell the property was restricted unless the others consented. This restriction implies limited enjoyment of the property.

69. The Plaintiff has taken the stand that the property was sold by the 1st

Defendant as Kartha. However, this is not pleaded in Ex.A-1. In Ex.A-1, PW- 1 stated that the 1st Defendant acquired the property through oral partition.

However, by the time of the alleged sale, there was an existing document – the partition deed dated 11.03.2011.

26

70.Under Section 6 of the Transfer of Property Act, a person can transfer a property on which he has a right. If there is no right, he cannot transfer. In the present case, by the date of the alleged Agreement of Sale, Ex.A1, the property was not in the name of 1st Defendant. It had been transferred to

Suggala Babu / DW3. When there is no property in the name of 1st Defendant on the date of the alleged Agreement of Sale, there arises no right to transfer.

It is not the case that Defendants 1 to 7 are illiterates. Their occupation is as teachers, and it is assumed that they would have worldly knowledge.

Knowing that the property was not in the name of 1st Defendant, it is highly improbable that 1st Defendant would enter into an agreement of sale with his family members as attestors. The family members/attestors are parties to the case, and their stand is the denial of the execution. In such a case, the evidence of PW-2 and PW-3, who are attestors and the scribe, stating that the Agreement of Sale was executed by 1st Defendant, cannot be relied upon in the given circumstances. Furthermore, the stands of PW-2 and PW-3 do not inspire confidence as to the execution of the document.

71. From the above discussion, it is evident that the purported agreement of sale was not supposed to be executed by the 1st Defendant alone with an understanding regarding the plaint schedule property, as there was already a sale deed. Furthermore, there was no consensus between the Plaintiff and the 1st Defendant; rather, the consensus was with the Plaintiff's husband. The 1st Defendant's claim that he borrowed Rs.50,000/- from the Plaintiff’s husband is corroborated by the facts of the case. Even the Plaintiff's document, Ex.A-6, negates her claim, as she is not a party to the document.

When there is a mistake regarding identity and property, the document cannot be binding. In this case, the evidence suggests that it was the 27

Plaintiff's husband who lent the amount. Hence, the Plaintiff has no right to seek relief.

72. Based on the above discussion, this Court finds that the Trial Court's observation that Ex.A-6 reply notice is binding is incorrect. The Trial Court failed to properly appreciate the evidence in granting relief under the Specific

Relief Act, as the Plaintiff was not a party to the transactions. Furthermore, the Plaintiff did not provide evidence of her readiness to comply with the obligations on 30.10.2011 and 31.11.2011 by paying the balance consideration. Simultaneously, the 1st Defendant lacked the right to sell the property, as it had already been sold to Suggala Babu on 05.05.2011. The agreement of sale Ex.A1 is to be held as not true and invalid. Therefore, the grounds raised are relevant for consideration in the appeal. The observations of the Trial Court do not support the Plaintiff's case.

73.Accordingly in this court finds that, the Plaintiff is not directly involved in the negotiations or the transaction with 1st Defendant. It is the Plaintiff’s husband who is involved in the negotiations and payments. The document agreement of sale and oral testimony of PW-1 points out that there is no evidence demonstrating that the Plaintiff had the financial means to pay the balance amount. That, the Agreement of Sale (Ex. A-1) lacks clarity about certain key terms, particularly about the measurement of the land and the responsibility of 1st Defendant measure it. Ex.A-6 reply legal notice specifically replies to the case of Plaintiff that, there is no transaction between the Plaintiff and Defendant No.1. In such case, the Ex. A1, the disputed

Agreement of Sale said to be executed in favor of the Plaintiff cannot be considered as true and valid binding on Defendant. The grounds urged in view of the above discussion do sustain and the appeal in A.S. No.31 of 2020 28 is liable to be allowed, and the suit is dismissed. Accordingly Point No. 1 & 2 are answered.

Point No. 3:

3) Whether the grounds urged in A.S. No. 12 of 2021, an appeal preferred by Defendant No. 8 in the suit in view of his remain exparte / claim against him is treated as dismissed do sustain?

A.S.No.12 of 2021

74. A.S. No. 12 of 2021 has been filed by Defendant No. 8, Chavva

Mallikarjuna Rao, seeking to set aside the impugned decree and judgment

dated 17.02.2020 in O.S. No. 475 of 2012, passed by the Principal Civil

Judge (Senior Division), Eluru, and to dismiss the suit.

75. The grounds raised by 8th Defendant are similar to those of Defendant

Nos. 1 to 7, namely, that the right to the property of 1st Defendant was transferred to Suggala Babu on 05.05.2011, and that the document related to the agreement of sale is invalid. Furthermore, Defendant Nos. 1 to 7 executed a regular sale deed in favour of 8th Defendant on 18.10.2011, after cancelling both the partition deed and the sale deed dated 05.05.2011. As a result, 1st Defendant claims to have valid ownership rights over the schedule property as a purchaser.

76. Before addressing this argument, it is important to note that Defendant

Nos. 1 to 8 were initially ex parte before the Trial Court. Subsequently,

Defendant Nos. 1 to 7 were allowed to come on record after the ex parte order was set aside. However, 8th Defendant did not appear before the Trial

Court at any point. Notably, there was no cross-examination of Plaintiff’s witnesses by 8th Defendant, and the cross-examination of PW-1 was treated 29 as Nil. Additionally, 8th Defendant did not enter the witness box to present his case. In the draft issues, it is clearly recorded that the claim against 8th

Defendant was dismissed. Moreover, no written statement from 8th Defendant is found in the court record.

77.Therefore, unless 8th Defendant follows the proper procedure and takes necessary steps to set aside the ex parte order, the appeal cannot be entertained. 8th Defendant has not argued that the decree was passed as an ex parte decree, nor has he provided any valid reason to challenge the decree on that basis. However, in the earlier appeal, A.S. No. 31 of 2020, this

Court ruled that the appeal was to be allowed, thus setting aside the decree and judgment dated 17.02.2020 in O.S. No. 475 of 2012, as the suit was dismissed. Since 8th Defendant is one of the Defendants in the case, the appeal filed by him cannot be sustained and must therefore be dismissed.

Accordingly Point No. 3 is answered.

Point No. 4: To what relief?

78. Under Point No. 1 & 2, this court concludes that, the Agreement of

Sale, the disputed document Ex.A-1 is not true, valid and binding on

Defendants, and consequently, the appeal to be allowed by setting aside the impugned Judgment and Decree and dismissing the suit. The Point No. 3 is answered as the Appellant/ Defendant No. 8 stand before the trial court is not there and that, the record is inconsistent as to his participation in the suit either exparte or dismissed, and moreover, under Point No. 1 & 2, this court allowed the appeal setting aside the Judgment and Decree and dismissing the suit, the present appeal AS 12 of 2021 do not sustain and liable to be dismissed. The pending interlocutory applications are in view of the findings of this court are hereby closed.

30

In the result, the appeal in A.S.No.31 of 2020 is allowed with costs by setting aside the decree and judgment dt.17.02.2020 in O.S.No.475 of 2012 on the file of Principal Civil Judge (Senior Division), Eluru by dismissing the suit in O.S.No.475 of 2012.

Since main appeal is allowed setting aside the decree and Judgment,

I.A.No.475 of 2020 is hereby closed.

In the result, the appeal in A.S.No.12 of 2021 is hereby dismissed since

A.S.No.31 of 2020 is allowed setting aside the decree and judgment

dt.17.02.2020 in O.S.No.475 of 2012 on the file of Principal Civil Judge (Senior Division), Eluru by dismissing the suit in O.S.No.475 of 2012. No costs.

Since main appeal is dismissed, I.A.No.812 of 2021 is hereby closed.

Partly dictated to Stenographer Gr.I and Gr.II, transcribed by them, corrected, signed on the draft Judgment and pronounced by me in open Court on this the 20 th day of January, 2025 and digitally signed.

Digitally signed by C

PURUSHOTTAM

KUMAR

PRINCIPAL DISTRICT JUDGE,

WEST GODAVARI, ELURU.

Copy to:

1. The Principal Civil Judge (Senior Division), Eluru, (along with LC record if any).

2. Sri N.V.Satyanarayana, Advocate for the Appellants.

3. Sri D.Umamaheswara Rao, Advocate for Appellant.

4. Sri E.Srinivasa Babu, Advocate for Respondent.

APWG000020682021

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

PRINCIPAL DISTRICT JUDGE,

WEST GODAVARI: AT ELURU.

Present: PURUSHOTTAM KUMAR CHINTALAPUDI. Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, West Godavari, Eluru.

Friday, on this the 17th day of January, 2025.

M.V.O.P.No.307/2021

Between:-

Nuru Mastan Valli @ Nuru Mastal Vali. …Petitioner.

Versus

1. Arepalli Venkata Nageswara Rao.

2. Pepakayala Veera Venkata Satyanarayana.

3. The Oriental Insurance Company Limited, rep. by the Manager (legal)/ Authorized Signatory, Vijayawada. … Respondents.

This petition has come on 06.01.2025 for final hearing before me in the presence ofSri G.J.V.R.G. Siva Sankar, Advocate for Petitioner and of Sri B. Sambhu Prasad, Advocate for 3rd Respondent and the Respondents 1 and 2 remained exparte and upon perusing the material paper available on record, this Court passed the following:

A W A R D

1. Mr. Nuru Mastan Valli @ Nuru Mastal Vali, has filed this Petition under Section 166 of Motor Vehicles Act, 1988 (in short referred as ‘M.V.Act’) r/w. Rule 455 of M.V. Rules, seeking compensation for the injuries sustained by him in the road traffic accident against the

Respondents 1 to 3.

2. Petitioner made 3 Respondents, viz., Arepalli Venkata Nageswara

Rao, Pepakayala Veera Venkata Satyanarayana and the Oriental Insurance

Company Limited. Notice to Respondents 1 to 3 is served. Respondents 1 2 and 2 remained exparte. 3rd Respondent alone has contested and represented through it’s counsel.

Case of the Claim Petitioner:

3. The Petitioner pleads that on 19.11.2020, after completing his holidays, he was traveling to Srinivasa Institute of Engineering &

Technology, Cheyyeru Village, Katrenikona Mandal, East Godavari District on his motorcycle, keeping to the left side of the road. At approximately 7:45

A.M., upon reaching Alampuram Village, Pentapadu Mandal, West Godavari

District, the 1st Respondent, who was driving a Tipper lorry bearing registration number AP37 TE 4956 (hereinafter referred to as the ‘offending vehicle’), drove it in a rash and negligent manner, without blowing the horn, without following traffic rules, and lost control, thereby hitting the Petitioner’s motorcycle from the rear side.

4.As a result, the Petitioner fell down and sustained multiple compound fractures and grievous injuries all over his body. The accident occurred solely due to the negligent act of the 1st Respondent. The S.H.O.,

Pentapadu P.S., registered a case under Crime No. 163/2020 for the offence under Section 338 of the Indian Penal Code (IPC).

5.The Petitioner was immediately shifted to Government Hospital,

Tanuku. From there, he was referred to Sushmitha Ortho & Trauma Care

Hospital, Narasaraopeta, Guntur District, for better treatment. The Petitioner sustained the injuries, Traumatic amputation of the right thumb, Injury to the cervical spine, Fracture of the base of the C2 vertebra (intact), Mild disc osteophyte complex at C5/C6 & C6/C7 indenting thecal sac, Faint hyperintense signals in the spinal cord due to motion artifacts/due to cord compression at C6, C7 levels, Grievous injury near the right knee, Grievous injury on the backside of the left foot, Oozing blood from the right ear.

6. A team of doctors led by Dr. Gopireddy Srinivas Reddy at Sushratha

Hospitals treated the Petitioner and conducted surgeries for the traumatic amputation of his right thumb and cervical spine injury. The Petitioner underwent an MRI scan of the cervical spine and was discharged on 20.11.2020. Further medical examinations revealed a mild disc osteophyte 3 complex at C5/C6 & C6/C7 indenting the thecal sac and faint hyper-intense signals in the spinal cord, possibly due to motion artifacts or cord compression at C6/C7 levels.

7. On 23.11.2020, he underwent a CT scan of the cervical spine at "MA"

Advanced Diagnostic & Research Centre, Narasaraopeta, which confirmed an intact fracture of the base of the C2 vertebra. Subsequently, he underwent further surgery for oozing blood from his right ear. In total, he underwent three surgeries and was hospitalized for 11 days. The Petitioner spent Rs.1,00,000/- on surgeries, in addition to expenses for pain and suffering, transportation, and medical costs. Due to the amputation of his right thumb, he is unable to grip or hold anything with his right hand and has become permanently disabled.

8. At the time of the accident, the Petitioner was 27 years old and was working as an Assistant Professor in the Civil Engineering Department at

Srinivasa Institute of Engineering & Technology, Cheyyeru Village,

Katrenikona Mandal, East Godavari District. He was drawing a monthly salary of Rs.32,000/-. Due to the negligent act of the 1st Respondent, he sustained severe injuries, leading to the loss of his source of income. He has suffered a 30% disability and loss of earning capacity due to the amputation of his right thumb, rendering him unable to continue his teaching profession or perform manual work.

9.The 2nd Respondent is the owner of the offending vehicle, and the 3rd

Respondent is the insurer. The offending vehicle was covered under a valid insurance policy and had all necessary documents. The accident was a direct result of the rash and negligent driving by the 1st Respondent, leading to permanent disability, loss of income, pain and suffering, and the need for extensive medical treatment.

10. Therefore, the Petitioner seeks relief against Respondents 1 to 3, who are jointly and severally liable to pay compensation of Rs.33,00,000/- to the

Petitioner, on account of his permanent disability and the following claims:

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Sl.No Heads Calculation(Rs.)

1Pecuniary Damages (Special Damages):

i) Partial loss of earnings.Rs.90,000/- ii) Medical bills and expenses, medicines, Rs.1,00,000/- special diet, personal attendance, operation costs, transportation and medical test etc., 2Non pecuniary damages (General Damages)

i)Compensation for pain and suffering.Rs.50,000/- ii)Compensation for mental agony, shock and Rs.30,000/- suffering. iii)Loss of amenities and enjoyment in life and Rs.30,000/- disfiguration iv)Compensation for injuries sustained, Rs.30,00,000/- continuing permanent disability and for the loss of earning power and loss of earning capacity. Grand Total Rs.33,00,000/

Defense of the 3 rd Respondent:

11. The 3rd Respondent opposed the Petition and filed a written statement denying the age, occupation, and earnings of the Petitioner. It also denied the manner in which the accident was alleged to have occurred, as well as the claim that the 1st Respondent drove rashly and negligently.

Furthermore, it denied the nature of injuries sustained by the Petitioner, the expenditure incurred, and the extent of disability assessed.

12.The 3rd Respondent contended that the 1st Respondent did not possess a valid and effective driving licence and that the offending vehicle did not have a valid permit. It also argued that the Petitioner contributed to the accident by his own negligence and could have avoided it. Additionally, it claimed that the Petition is defective due to the non-joinder of proper and necessary parties.

13. The 3rd Respondent further asserted that the compensation amount claimed, along with the rate of interest, is excessive and that there is no permanent disability. Therefore, it maintained that the Petitioner is not entitled to any compensation.

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14. In view of the above contentions, the 3rd Respondent sought the dismissal of the claim against it.

ISSUES:

15. After completion of pleadings, the following issues are settled for determination:

1.Whether the accident is caused due to rash and negligent driving of driver of Tipper Lorry (R1) bearing No. AP37 TE 4956 causing injuries to Petitioner?

2.Whether the Petition is bad for non-joinder of proper and necessary parties?

3.Whether the Petitioner is entitled to compensation, if so, from whom and to what amount?

4.To what relief?

Evidence:

16. Petitioner let in evidence examining himself as PW-1, examined Dr.

G. Vara Prasad, Dr. Y. Madhusudhana Rao, Dr. G. Srinivasa Reddy and

Ch.V.S. Parameswara Rao as PW-2 to PW-5 before the advocate commissioner. Ex.A-1 to Ex.A-22, which are attested copy of FIR, notarized copy of disability certificate of the Petitioner, salary certificate of the Petitioner, discharged record of the Petitioner, MRI Cervical Spine

Report, CT Cervical Spine report, IP invoice bill, bunch of advance receipt vouchers, final bill of Rs.73,896/- issued by Susmitha Hospitals, Hospital bills issued by Sushmitha hospitals, receipt of Rs.10,000/-, bunch of six medical bills, notarized copies of certificate of the Petitioner issued by Board of Secondary Education, provisional certificate of the Petitioner in B-Tech., certificate of Bachelor of Technology, consolidated marks memo of the

Petitioner issued in B-Tech., provisional certificate of the Petitioner in

Master of Technology, certificate of Master in Technology in Structural

Engineering of the Petitioner and consolidated Grade Sheet of the Petitioner are marked. Through PW-4, Ex.X-1 case sheet of the Petitioner is marked.

17.3rd respondent examined it’s Assistant Manager Uppu Ramachandra

Rao as RW-1 and summoned Sri P.Raja Kiran Kumar, Sr. Assistant of 6

D.T.C. Office, Eluru and examined as RW-2. 3rd Respondent marked Ex.B- 1 Rough Sketch by summoning Police officials and Ex.B-2 Insurance Policy.

Through RW-2, Ex.X-2, Authorization letter and Ex.X-3 Permit details of offending vehicle are marked.

18. The Petitioner filed I.A.No.463/2021 under sec. 475(2) of M.V.Act to exempt the Court fee and the same is allowed on 08-07-2021.

19. 3rd Respondent filed an application I.A.No.1445/2023 u/s.170 of M.V.

Act seeking permission to take all the defenses on behalf of the

Respondents 1 and 2. The same is allowed permitting the 3rd Respondent to take all defenses available to Respondents 1 and 2 on 30.10.2023.

Arguments:

20. After completion of evidence, both the learned counsel for the

Petitioner and 3rd Respondent have submitted their arguments. Learned counsel for the Petitioner apart from oral arguments, submitted written arguments along with rulings. Learned counsel for the 3rd Respondent submitted written arguments.

21.The learned counsel for the Petitioner Sri G.J.V.R.G.Siva Sankar arguments is the evidence of PW-1 to PW-5 is sufficient that the Petitioner sustained injuries due to the negligent driving of 1st Respondent. The evidence of Petitioner as to the income of the Petitioner @ Rs. 32,000/- is evident through the salary certificate. The Respondent did not lead any evidence denying the case of the Petitioner. RW-1 and RW-2 are not competent witnesses to assess the contributory negligence. The rough sketch do not reflect the contributory negligence.

22. Learned counsel further submitted that, assuming for a moment that there is contributory negligence, it does not mean that the Petitioner is at fault. The 1st Respondent ought to have exercised caution while driving the offending vehicle. The age of the Petitioner is evident from the documentary evidence. The loss of the right thumb due to amputation has affected the career of the Petitioner. Being a Professor, the Petitioner has to write on the board and sign while correcting papers. Due to the loss of his thumb, the

Petitioner has lost his ability to perform his regular duties as a Professor.

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Therefore, the disability should be assessed as functional disability due to the amputation of his right thumb. The insurance policy validly covers the offending vehicle. The 3rd Respondent claims that there was no permit on the date of the accident, but a permit was issued on the said date. There is no violation regarding the driving license of the 1st Respondent. Hence, the learned counsel sought to allow the Petition.

23.The Petitioner, along with written arguments, has relied on the following rulings:

1. Satyabhama Dave and others v. Ratturam and others

2. Rani and others v. National Insurance Company and others

3. Sanjay Kumar v. Ashok Kumar and another

4. Managing Director, T.N.S.T.C Ltd. v. Bharanidharan

5. Md. Ashisq Ali v. Mohd. Rizwan Pasha and another

6. Duddala Nageswara Rao v. Ardala Suryanarayana and another

24.Learned counsel for the 3rd Respondent, Sri B. Sambhu Prasad, argued that the evidence of RW-1 and RW-2, including the evidence of PW- 1, clearly establishes that the accident occurred at the divider near a ‘U’ turn. PW-1 admitted that he was riding the motorcycle on the date of the accident. The motorcycle hit the back side of the lorry. Thus, the version of the Petitioner in the pleadings, stating that the lorry hit the motorcycle from behind, is incorrect. If at all the motorcycle had been hit from behind, there would be no possibility of the motorcycle in the opposite direction colliding with the rear side of the offending vehicle. At most, the front side of the offending vehicle could have dashed against the motorcycle, but this is not the case as per PW-1. Under these circumstances, unless the Petitioner was heading in the opposite direction of the offending vehicle, there would be no possibility of the motorcycle colliding with the rear side of the offending vehicle.

25. The learned counsel stressed that the front side of the lorry allegedly dashed against the motorcyclist's rear side, but the M.V.I. report and rough sketch reflect a different scenario. Therefore, there was negligence on the part of the Petitioner, as he did not drive carefully.

8 26. The learned counsel further argued that the Petitioner’s salary is not established, as he did not produce any bank statements or salary slips. The salary certificate provided is not valid. Regarding the claim of 30% functional disability, the learned counsel submitted that the Petitioner faces no difficulties, is hale and healthy, and is attending to his professional duties.

The amputation of the thumb does not hinder the occupation of the

Petitioner. Furthermore, there is no evidence to establish that the Petitioner is in the teaching profession. The claim of Rs.33,00,000/- is excessive.

Additionally, the permit was issued on the date of the accident in the

evening hours. If at all the permit was valid, it should have been issued

before 10:30 a.m., prior to the occurrence of the accident. Therefore, the

validity of the permit cannot be considered. With the above defense, the learned counsel argued that the claim petition is not maintainable and sought its dismissal.

27. Heard both sides and perused the record.

Discussion:

28. ISSUE Nos.1 & 2:

1.Whether the accident is caused due to rash and negligent driving of driver of Tipper Lorry (R1) bearing No. AP37 TE 4956 causing injuries to Petitioner?

2.Whether the Petition is bad for non-joinder of proper and necessary parties?

Since both the issues are connected to each other, they are answered together.

29.The case of the Petitioner is that on the date of the accident, at 7:45 a.m., while he was travelling to Amalapuram and reached Alampuram

Village, the 1st Respondent, the driver of the offending vehicle, coming from

Tanuku side, crossed the highway road to proceed to Alampuram. The 1st

Respondent drove the offending vehicle in a rash and negligent manner and dashed into the Petitioner’s motorcycle from behind, thereby causing him to fall.

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30. The contention of the 3rd Respondent is that the assertion of the

Petitioner, that the offending vehicle hit the motorcycle from its rear side, is incorrect. The Petitioner, being the injured party as well as an eyewitness, is alleging tortuous liability due to the rash and negligent act of the 1st

Respondent against Respondents 1 to 3.

31. The initial burden lies on the Petitioner to establish that the accident occurred due to the rash and negligent driving of the 1st Respondent. The

Petitioner, as PW-1, filed his chief affidavit narrating the facts as stated in his pleadings, reiterating that the offending vehicle dashed into him from behind.

32. PW-1 was subjected to cross-examination. The 3rd Respondent, during the examination of PW-1, confronted him with the attested copy of the rough sketch, which is marked as Ex.B-1. PW-1 deposed that there is a divider on the National Highway towards Tanuku and towards

Tadepalligudem. He stated that he did not know whether a vehicle coming towards Tadepalligudem has to take a ‘U’ turn crossing the divider to go to

Alampuram Village. In his chief affidavit, he stated that the offending vehicle was coming from Tanuku. He denied the suggestion that he dashed into the offending vehicle himself and that there was no negligence on the part of the 1st Respondent.

33. Ex.B-1 is received only to consider the place of the accident. Ex.B-1 rough sketch shows that there is a divider on the National Highway. One side, towards the east, goes to Tanuku, while the west side goes to

Tadepalligudem. PW-1's deposition states that on the date of the accident, when he reached Alampuram Village, the 1st Respondent drove the offending vehicle, coming from Tanuku, crossed the highway road to proceed towards Alampuram. The offending vehicle was driven in a rash and negligent manner.

34.As per Ex.B-1 rough sketch, the accident location is at the junction of the lane touching the highway. In Ex.A-4 charge sheet, after investigation, the police stated that the Petitioner was coming from Narasaraopet to

Amalapuram, and when he reached near Anjaneyaswamy Statue at

Alampuram, at 7:45 a.m., the offending vehicle, coming from Tanuku and 10 turning towards Alampuram Village to Prattipadu Village, was driven in a rash and negligent manner and dashed into the motorcyclist. The charge sheet confirms that the offending vehicle was coming from Tanuku, taking a turn towards Alampuram Village, when the accident occurred. The

Petitioner, who was travelling from Narasaraopet to Amalapuram, had reached Alampuram Village Centre at the time of the accident.

35. The records show that the accident location is at the junction of

Alampuram Village Road and the National Highway. The east side road leads to Tanuku, whereas the west side road leads to Tadepalligudem. The case of the Petitioner is that the offending vehicle was coming from Tanuku towards Alampuram. The charge sheet also confirms that the offending vehicle, while coming from Tanuku and turning towards Alampuram Village, was involved in the accident. This indicates that if the offending vehicle was coming from Tanuku and turning towards Alampuram Junction, it was moving in the opposite direction.

36. The Petitioner has asserted in his chief affidavit that the offending vehicle, coming from Tanuku, hit him from behind when he reached

Alampuram Village Junction. The narration by both parties, along with

Ex.A-4 charge sheet and Ex.B-1 rough sketch, clearly shows that the offending vehicle was going in the opposite direction from where it was supposed to go. If it was attempting to take a ‘U’ turn towards Alampuram

Village Road, while the motorcycle coming from Narasaraopet had reached

Alampuram, then the accident occurred.

37.The learned counsel for the 3rd Respondent argued that if the offending vehicle dashed into the Petitioner’s motorcycle from behind, it is probable that both vehicles were travelling in the same direction, with the motorcycle ahead of the offending vehicle. However, at the same time, the 3rd Respondent suggests that the offending vehicle hit the motorcycle on the rear side of the offending vehicle. This indicates that the accident occurred due to a collision between the two vehicles—the offending vehicle and the motorcycle.

38.On perusal of the rough sketch and evidence of the Petitioner, it is evident that when the motorcycle was crossing the junction from Alampuram 11

Village towards Tanuku, the offending vehicle, coming in the opposite direction from Tanuku, while taking a turn, dashed into the motorcycle when both were at the junction. In such a case, the Petitioner, who was travelling towards Tanuku to reach Amalapuram via Alampuram Village, cannot be said to be coming from the opposite direction.

39.The 3rd Respondent examined RW-1 U.Ramachandra Rao, an

Assistant Manager of the Insurance Company. In cross-examination, he deposed that Ex.B-2 Insurance Policy is valid, the 1st Respondent had a valid driving license, and the charge sheet was filed against the 1st

Respondent. The accident location was at the highway crossing turning towards Alampuram Village. East of the accident location is Tanuku, whereas the West is Tadepalligudem. As per the charge sheet and rough sketch, while the offending vehicle was crossing the motorcycle on N.H.16 road, the accident occurred. He stated that he did not know in which direction the lorry was going at the time of the accident. He added that the lorry was going from Tanuku to Alampuram. He denied the suggestion that the lorry was coming in the wrong direction and that the 1st Respondent was driving in a rash and negligent manner.

40. RW-1 is not an eyewitness to the accident. The Petitioner is an eyewitness. The driver of the offending vehicle remained ex parte.

Therefore, the evidence from PW-1 and RW-1, along with Ex.A-4 charge sheet and Ex.B-1 rough sketch, categorically establishes that the offending vehicle was coming from Tanuku to Alampuram, crossing the highway, when the accident occurred. When both vehicles were crossing each other in a curved route of corner in opposite directions, there is possibility of a collision between the offending vehicle and the motorcycle was high.

41.The statement of PW-1 that the lorry was coming from behind him should be understood to mean that while it was proceeding towards

Alampuram, the rear side of the lorry hit the motorcyclist. It is relevant to state that both parties admit that the offending vehicle was coming from

Tanuku towards Alampuram village. As per the rough sketch relied upon by the 3rd Respondent, there is evidence that the lorry, in all probability, was coming from the opposite direction towards Alampuram village and hit the motorcycle. Since there was a divider, the lorry should have taken a ‘U’ turn 12 to go to Alampuram village, by going in the route from Tadepalligudem, but it did not do so. As the lorry was coming from the opposite direction, and there is no evidence to suggest that the motorcycle was moving in the wrong direction, it is immaterial whether the lorry hit the rear side of the bike while it was moving ahead. It appears that while both vehicles were crossing, the lorry, which came from the opposite direction from Tanuku to

Alampuram village and was taking a turn, collided with the motorcycle.

42. Strict proof of evidence is not required regarding the manner of the accident. It is undisputed that the collision occurred between the offending vehicle and the motorcycle. The evidence clearly indicates that the offending vehicle, coming from Tanuku towards Alampuram, was moving in the wrong direction. In such a case, no contributory negligence can be attributed to the motorcyclist. The 1st Respondent was driving the vehicle on the wrong route. Had he exercised due caution and not taken the wrong route, there might have been scope to argue contributory negligence. When driving in the opposite direction on a national highway itself constitutes taking a wrong route, the person who drove on the wrong route cannot claim equities of negligence against the motorcyclist.

43. The 1st Respondent, while driving the heavy vehicle (i.e., the offending vehicle) during the daytime, ought to have been cautious and taken the proper route. The lack of caution is evident when the offending vehicle, coming from Tanuku and taking a turn towards Alampuram, caused the accident. In such circumstances, the allegation that the Petitioner was contributorily negligent is not tenable. Therefore, the Petitioner is not required to add the insurer of the motorcycle as one of the parties.

Consequently, the Petition cannot be considered defective due to the non- joinder of proper and necessary parties.

44. In light of the foregoing discussion, Issue No.1 is answered in the affirmative: the accident occurred due to the rash and negligent act of the 1st

Respondent, who was coming in the opposite direction from Tanuku to

Alampuram and hit the motorcycle.

45.Issue No.2 is answered as affirmative, from the evidence on record, it is established that the 1st Respondent was driving the offending vehicle in a 13 rash and negligent manner. The rough sketch (Ex.B-1) and the charge sheet (Ex.A-4) clearly indicate that the offending vehicle was coming from

Tanuku towards Alampuram and collided with the Petitioner’s motorcycle at the junction. The evidence further shows that the 1st Respondent failed to take a ‘U’ turn at the divider, instead proceeding in the wrong direction on the National Highway.

46.The 3rd Respondent has contended that the Petitioner was also negligent and contributed to the accident. However, there is no substantive evidence to support this claim. The 1st Respondent, who was in control of a heavy vehicle, had a greater duty of caution, particularly while making a turn on a highway. The fact that the offending vehicle was coming from the opposite direction and failed to adhere to proper traffic rules negates any argument of contributory negligence on the part of the Petitioner.

47.Moreover, the 1st Respondent has not provided any credible defense or counter-evidence to refute the Petitioner’s claims. The driver of the offending vehicle has also remained ex parte. Given these circumstances, it is evident that the accident occurred solely due to the rash and negligent driving of the 1st Respondent.

48. Therefore, it is concluded that the 1st Respondent was negligent in causing the accident, and no contributory negligence can be attributed to the Petitioner.

ISSUE No.3:

Whether the Petitioner is entitled for compensation claimed by him, if so, from whom and to what amount?

49.The Petitioner claims that due to the accident, he sustained various injuries. He narrated in his chief that he sustained the injuries: Traumatic amputation of the right thumb, Injury to the cervical spine, Fracture of the base of the C2 vertebra (intact), Mild disc osteophyte complex at C5/C6 &

C6/C7 indenting thecal sac, Faint hyperintense signals in the spinal cord due to motion artifacts/due to cord compression at C6, C7 levels, Grievous injury near the right knee, Grievous injury on the backside of the left foot,

Oozing blood from the right ear.

14 50. The Petitioner further stated that he was initially treated at the

Government Hospital, Tanuku, and was subsequently shifted to Sushmitha

Hospital, Narasaraopeta. To support his claim of injuries, he relied on Ex.A- 2 (wound certificate), Ex.A-7 (discharge summary), Ex.A-8 (MVI report),

Ex.A-9 (CT cervical scan report), Ex.A-10 (invoice bill), Ex.A-12 (final bill), and Ex.A-13 to Ex.A-15 (medical bills and receipts).

51. To substantiate these documents and the treatment provided to him, the Petitioner examined Dr. G.Vara Prasad as PW-2, who is the Professor and HOD of the Orthopaedic Department at Government General Hospital.

He assessed the Petitioner’s disability and issued a certificate indicating 65% disability. During cross-examination, nothing substantial was elicited against him.

52.The Petitioner also examined Dr. Y. Madhusudhana Rao as PW-3, who runs Anantha Nursing Home at Narasaraopeta. He had provided treatment to the Petitioner. Ex.P-14 is the certificate issued by him. In cross- examination, no significant contradictions were brought out.

53.Additionally, the Petitioner examined Dr. G.S.Reddy as PW-4, who runs Sushmitha Hospital at Narasaraopeta. He testified that the Petitioner was admitted to his hospital on 20.11.2020 with a traumatic amputation of the right thumb. All the relevant medical documents exhibited as Ex.A-2,

Ex.A-7, and Ex.A-10 to Ex.A-13 were issued by his hospital. Ex.A-8, Ex.A- 9, and Ex.A-12 pertain to the treatment provided to the Petitioner. The

Petitioner was discharged on 29.11.2020.

54. During cross-examination, he deposed that the total inpatient bill amounted to Rs.73,896/-. The Petitioner lost the distal phalanx of his right thumb, which has made it difficult for him to hold a pen and other objects.

55.The statements of the doctors, coupled with the MRI report, discharge summary, wound certificate, and medical bills, establish that PW-4, upon the Petitioner’s admission as an inpatient, had examined and treated him for all necessary medical emergencies. PW-2 confirmed that he had issued the disability certificate, and PW-3 stated that he had treated the Petitioner initially. The medical evidence remains consistent and corroborates the 15 pleadings. It can thus be concluded that the accident occurred at the location where the highway leads towards Tanuku. Consequently, the

Petitioner was admitted to the Government Hospital, Tanuku. As discussed under Issue No.1, the Petitioner was traveling in the correct direction, whereas the offending vehicle, which came from the opposite direction, collided with the motorcycle.

56. The wound certificate (Ex.A-2) confirms the injuries sustained by the

Petitioner, as stated earlier. The MVI report, CT scan reports, and testimonies of PW-2 to PW-4 establish that the Petitioner suffered major injuries, including the amputation of his right thumb.

57.The Petitioner relied on Ex.A-6 (salary certificate) to claim that he was earning Rs.32,000/- per month. The Principal of his institution was examined as PW-5. He deposed that Ex.A-6 was issued by his office and that their records confirm the Petitioner worked in the Engineering

Department from 02.01.2020 to 18.12.2020, drawing a gross salary of

Rs.32,000/- per month. During cross-examination, the 3rd Respondent merely posed suggestions regarding PW-5’s authority, without raising specific objections regarding his identity. The only argument put forth was the absence of the Petitioner’s income tax returns.

58.In motor accident cases, strict documentary proof of income is not mandatory. Throughout his pleadings, the Petitioner has consistently stated that he was employed at Srinivasa Institute of Engineering and Technology.

His testimony also aligns with this claim. During cross-examination by the 3rd Respondent, mere denials regarding his income and designation as an

Associate Professor were made. Since the 3rd Respondent failed to present any concrete evidence contradicting the Petitioner’s stated income, their objections cannot be accepted.

59. The key aspects of PW-5’s cross-examination are as follows:

PW-5 deposed that Ex.A-6 is not a pay slip.

He denied the suggestion that the salary was fixed by the management rather than being based on AICTE norms.

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He confirmed that there is no other record apart from Ex.A-6.

He stated that salaries are generally paid through bank transfers.

He denied the suggestion that a college paying such a salary must maintain additional supporting records.

60.Thus, PW-5’s testimony confirms that the Petitioner was paid a gross salary of Rs.32,000/-, but Ex.A-6 is not a pay slip. Consequently, deductions, including professional tax, would not be reflected. According to

PW-5, the salary was paid as per AICTE norms. During cross-examination,

PW-1 (the Petitioner) admitted that he did not submit bank transaction records related to his salary. However, the 3rd Respondent’s questioning of

Ex.A6 indirectly confirms that the Petitioner was employed as a Lecturer at the said college.

61. Furthermore, the Petitioner’s educational qualifications, marked as

Ex.A-17 to Ex.A-22 (B.Tech and M.Tech certificates), support the claim that he was working as an Associate Professor. However, his gross salary of

Rs.32,000/- cannot be entirely accepted, as deductions such as professional tax may apply. Therefore, a notional income of Rs.20,000/- per month is considered reasonable, given the Petitioner’s educational background.

62.The Petitioner has stated that he sustained grievous injuries. Ex.A-2 (wound certificate) specifically records the traumatic amputation of his right thumb, as well as ABM injuries on his left ankle and right thigh. The injuries are grievous in nature. The wound certificate, along with the testimonies of

PW-2 to PW-4, confirms the amputation of the right thumb. PW-2 issued the disability certificate (Ex.A-5), which states that the Petitioner suffers from permanent disability in his right upper limb and right lower limb, with a disability percentage of 65%. Ex.A-7 (discharge summary) further corroborates the injuries and treatment received. The fact remains that the

Petitioner has lost his right thumb and suffers from impaired movement in his right lower limb.

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63.The Petitioner’s occupation as an Associate Professor is evident. His role primarily involves teaching, writing, correcting answer scripts, and using the board for explanations. The inability to use his right thumb significantly hampers these activities. The amputation of his right thumb constitutes a substantial loss for him. In his pleadings, the Petitioner has relied on a functional disability assessment of 30%. Therefore, this Tribunal holds that the functional disability of 65% cannot be considered, and instead, the

Petitioner’s claim of 30% functional disability is accepted.

Compensation arrived:

64. In the light of the above discussion, the injuries, the nature of injuries sustained, treatment and disability, the Petitioner is entitled for compensation as follows:

65.As the petitioner sustained two grievous injuries. Therefore, pain and suffering for two grievous injuries can be considered and an amount of

Rs.1,00,000/- is awarded.

66. Petitioner is in hospital and follow up treatment for considerable period of six months can be considered. Hence, Rs.20,000/-x6=

Rs.1,20,000/- can be considered towards loss of income.

67. For the foregoing reasons discussed, this Tribunal concluded the income of the Petitioner is Rs.20,000/- per month, and at Rs.2,40,000/ per annum. There is 30% of functional disability to the Petitioner. Age of the

Petitioner is 28 years as per Ex.A-2 wound certificate. As per 1Sarla Verma and others Vs. Delhi Transport Corporation and another case, the appropriate multiplier applicable for the age group of persons between 26 to 30 years is 17. Loss of future earnings would be calculated as

Rs.2,40,000/- X 30/100 X 17 = Rs.12,24,000/-.

68. Ex.A-12 final medical bills shows that the Petitioner has incurred an expenditure of Rs.73,896/-. Hence, this Tribunal is awarding Rs.73,896/- towards medical bills, Rs.10,000/- towards transportation charges, 15. 2009ACJ1298 18

Rs.20,000/- towards personal attendant charges, Rs.25,000/- towards extra-nourishment, and Rs.50,000/- towards loss of amenities.

69. In the case of 2Raj Kumar Vs. Ajay Kumar & Anr, Hon’ble Supreme

Court laid down the principles in assessing the loss of income in the case of injuries in road traffic accident on the criteria of Pecuniary and Non-

Pecuniary damages, the same is applied to the present facts of the case.

Applying the above multiplier and the rulings, the just compensation would arrive as follows:

Sl.No Heads Calculation (Rs.)

1 Pecuniary Damages (Special Damages):

Transportation Charges Rs.10,000/-

Personal attendant Charges Rs.20,000/-

a) Loss of earning during the period of Rs.1,20,000/- treatment (six months)

b) Loss of future earnings on account of Rs.12,24,000/- permanent disability.

2 Non-pecuniary damages (General Damages)

(i) Medical bills Rs.73,896/-

Pain and suffering Rs.1,00,000/-

(ii) Loss of amenities. Rs.50,000/-

(iii) Extra-nourishment Rs.25,000/-

Grand Total Rs.16,22,896/-

For the above discussion, this Tribunal arrives just and reasonable compensation is at Rs.16,22,896/-.

Liability:

70. The 3rd Respondent, examined as RW-1, deposed that there was no violation of the terms and conditions of the policy, as the 1st Respondent possessed a valid driving licence. Ex.B-2 (insurance policy) confirmed that

6. 2013 ACJ 2131.

19 the vehicle was duly insured. However, the 3rd Respondent contended that the offending vehicle did not have a valid permit.

71.To support this contention, the 3rd Respondent summoned RTA official Mr. Raja Kiran Kumar, Senior Assistant, who was examined as RW- 2. He produced an authorization letter and permit details of the offending vehicle, which were marked as Ex.X-2 and Ex.X-3, respectively. He deposed that his office starts at 10:30 A.M. and that he could not confirm the time of submission of the permit application. Ex.X-3 contains the permit details.

72.During cross-examination by the Petitioner’s counsel, RW-2 deposed that there was no direct nexus between the absence of a permit and the accident. If a vehicle lacks a permit, only a fine is imposed for the violation.

He further stated that an application for renewal can be submitted 15 days

before the permit’s expiry. As per Ex.X-3, the offending vehicle is a goods

carriage vehicle, and its permit was valid from 19.11.2020 to 18.11.2025.

The accident reportedly occurred on 19.11.2020 at 07:45 A.M.

73.The 3rd Respondent contended that the permit was obtained after the accident. It is a fact that the permit was issued on 19.11.2020, i.e., on the date of the accident. However, there are no details indicating that the vehicle was previously fined for operating without a permit. Additionally, there are no records of any prior permit for the offending vehicle.

74. The Petitioner’s counsel relied on Satyabhama Dave and Others v.

Ratturam and Others, a case relating to the absence of a permit. In that case, the Hon’ble High Court of Chhattisgarh held that the absence of a permit is an infraction. There was no direct relationship between the absence of a permit and the negligence of the 1st Respondent. The court observed that a permit merely authorises a vehicle to operate and that its absence attracts a fine but does not necessarily impact liability for negligence.

75. In the present case, a permit was in existence on the date of the accident, i.e., 19.11.2020. The permit was issued immediately after RW-2’s office opened, and from the date of the accident onwards, the vehicle had a 20 valid permit. Therefore, it cannot be said that the vehicle was debarred due to the lack of a permit.

76. In Rani and Others v. National Insurance Company and Others, the Hon’ble Supreme Court also examined the issue of permit validity and its impact on liability.

77.In the present case, the permit was in existence. In similar cases, the

Hon’ble High Court and the Hon’ble Supreme Court directed insurance

companies to compensate the claimant and later recover the amount from the vehicle owner if no valid permit was found. However, since a valid permit existed in this case, recovery from the owner is not required.

78. The other rulings cited pertain to cases of amputation and the computation of compensation. In those cases, amputation involved the right leg either above or below the knee. However, in the present case, the amputation is of the right thumb rather than the lower limbs.

79. In view of the above, the 1st Respondent's negligent act has rendered the 2nd Respondent (being the vehicle owner) and the 3rd Respondent (being the insurer of the offending vehicle) jointly and severally liable to pay compensation.

IssueNo.4: To what relief?

80.Under Issue Nos.1 and 2, this Tribunal holds that due to the negligence of the 1st Respondent while driving the offending vehicle, resulting in accident and caused injuries to the Petitioner. Since there is no evidence of contributory negligence by Petitioner, the insurer of the motorcycle is not a necessary party and thus the Petition is not bad for non- joinder of proper and necessary parties. Under Issue No.3, this Tribunal holds that the evidence is clear that the Petitioner has sustained two grievous injuries and his income is considered as Rs.20,000/- per month and permanent disability is at 30%. The Petitioner has sustained partial loss of income and underwent pain and suffering. Therefore, the

Respondents 1 to 3 are jointly and severally liable to pay compensation in.

The just compensation arrived by this tribunal is Rs.16,22,896/ (Rupees

Sixteen Lakhs Twenty Two Thousand Eight Hundred and Ninety Six 21 only) payable by Respondents 1 to 3 jointly and severally with interest and costs.

In the result, the Petition is allowed in part with proportionate costs, awarding compensation of Rs.16,22,896/ (Rupees Sixteen Lakhs Twenty

Two Thousand Eight Hundred and Ninety Six only) with interest thereon at 7.5% per annum from the date of Petition till the date of realization, jointly and severally liable to pay the Award amount by the Respondents 1 to 3.

(i) Respondent No.1 to 3 are directed to deposit the entire compensation amount with proportionate costs and interest equally within 3 months from the date of this award.

(ii) On deposit of the said amount by the Respondents, Petitioner is permitted to withdraw entire compensation amount along with interest and costs.

(iii) As per the record the Claimant is exempted to pay court fee of Rs.32,360/- on Rs.33,00,000/-. The Claimant is entitled to receive the copy of Award on deposit of court fee of Rs.32,360/- on Rs.33,00,000/- within one month from the date of this Award. The Respondents are permitted to receive the copy of Award, if the Claimant failed to deposit the required court fee within one month from the date of Award.

(iv) Advocate fee is fixed at Rs.3,000/-.

(v) Rest of the claim of the claimant is dismissed without costs.

Accordingly, the petition is disposed off.

Dictated to Stenographer Gr.I, transcribed by him, corrected, signed on the draft Judgment and

pronounced by me in open Court on this the 17 th day of January, 2025 and digitally signed.

Digitally signed by C

PURUSHOTTAM

KUMAR Chairman, Motor Accidents Claims Tribunal-cum-Principal

District Judge,

West Godavari, Eluru.

Appendix of Evidence

Witnesses examined for Petitioner

P.W.1Nuru Mastan Valli @ Nuru Mastal Vali. P.W.2Dr. G. Vara Prasad. P.W.3Dr. Y. Madhusudhana Rao. P.W.4Dr. Gopireddy Srinivasa Reddy. P.W.5Ch.V.S. Parameswara Rao.

22

Witnesses examined for Respondent No.3

R.W.1Uppu Ramachandra Rao. R.W.2P. Raja Kiran Kumar.

Exhibits for Petitioner

Ex.A.119-11-2020Attested copy of F.I.R. in Cr.No.163/2020 of Pentapadu P.S. Ex.A.2--Attested copy of Wound Certificate Ex.A3--Attested copy of M.V.I.Report Ex.A4--Attested copy of Charge sheet Ex.A523-12-2021Notarized copy of disability certificate of the Petitioner Ex.A.618-12-2020Salary certificate of the Petitioner issued by

Principal, Srinivas Institute of Engineering

and Technology, Cherreru Village, Katrenikonda Mandal, Amalapuram, E.G.District. Ex.A729-11-2022Discharge Record of the Petitioner issued by Susmitha Ortho & Trauma Care Hospital, Narsaraopet, Guntur District. Ex.A821-11-2020MRI Cervical Spine Report (Tele Radiology) of the Petitioner issued by MA Advanced Diagnostic & Research Centre, Narsaraopet, Guntur District. Ex.A923-11-2020CT Cervical Spine Report (Tele Radiology) of the Petitioner issued by MA Advanced Diagnostic & Research Centre, Narsaraopet, Guntur District. Ex.A.1029-11-2020I.P. Invoice Bill of Rs. 60,900/- issued by Susmitha Ortho & Trauma Care Hospital, Narsaraopet, Guntur District.

Ex.A11--Bunch of advance receipt vouchers 4 in number for Rs. 60,900/- Ex.A1229-11-2020Final Bill of Rs. 73,896/- issued by Susmitha Ortho & Trauma Care Hospital, Narsaraopet, Guntur District. Ex.A13--Hospital Bills and medicines statement of Rs. 73,896/- issued by Susmitha Ortho & Trauma Care Hospital, Narsaraopet, Guntur District. Ex.A1427-11-2020Receipt of rs. 10,000/- issued by Ananth Nursing Home, Narsaraopet. Ex.A.15--Bunch of Medical Bills (6 in number) for Rs. 12,212/- Ex.A.16--Notarized copy of Certificate of Board of Secondary Education, A.P. of the Petitioner Ex.A1706-09-2014Notarized copy of Provisional certificate of the Petitioner in B.Tech (Civil Engineering) issued by J.N.T.UJ., Kakinada. Ex.A1820-12-2016Notarized copy Certificate of Bachelor of Technology (Civil Engineering) issued by J.N.T.U., Kakinada Ex.A1921-10-2014Notarized copy of Consolidated marks memo of the Petitioner issued in B.Tech by J.N.T.U., Kakinada Ex.A2027-07-2016Notarized copy of Provisional Certificate of the Petitioner in Master of Technology (July, 2016) in structural Engineering issued by K.L.University,Vaddeswaram, Guntur District.

23

Ex.A21--Notarized copy of Certificate of Master in Technology in Structural Engineering of the Petitioner issued by K.L. University Green Fields, Vaddeswaram, Guntur District. Ex.A22--Consolidated Grade sheet - Tech in structural Engineering of the Petitioner issued by K.L. University, Green Fields, Vaddeswaram, Guntur District.

Exhibits through PW.4

Ex.X1--Case sheet.

Exhibits for 3 rd Respondent

Ex.B1--Attested copy of rough sketch. Ex.B2--Insurance policy.

Exhibits through RW.2

Ex.X2--Authorization letter. Ex.X3--Permit details of offending vehicle.

Digitally signed by C

PURUSHOTTAM

KUMAR Chairman (M.A.C.T.) Cum-P.D.J., W.G., Eluru.

Copy to

1.Sri G.J.V.R.G. Siva Sankar, Advocate for Petitioner.

2.Sri B. Sambhu Prasad, Advocate for 3rd Respondent.

APWG000034112019

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

PRINCIPAL DISTRICT JUDGE,

WEST GODAVARI: AT ELURU.

Present: PURUSHOTTAM KUMAR CHINTALAPUDI. Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, West Godavari, Eluru.

Tuesday, on this the 21st day of January, 2025

M.V.O.P.No.887/2019

Between:-

Garapati Srinivasa Rao. … Petitioner.

Versus

1. Yerramsetti Amarnadh.

2. United India General Insurance Company Limited, rep. by it‟s Divi- sional Manager, Eluru. … Respondents.

This petition has come on 06.01.2025 for final hearing before me in the presence of Sri E.Thukaram, Advocate for Petitioner and of Smt.K. Kalyani, Advocate for 2nd Respondent and the 1st Respondent remained exparte and upon perusing the material paper available on record, this Court passed the following:

A W A R D

1. Mr. Garapati Srinivasa Rao, has filed this Petition under Section 166 of Motor Vehicles Act, 1988 (in short referred as „M.V.Act‟) r/w. Rule 455 of

M.V. Rules, seeking compensation of Rs.15,00,000/- for the injuries 2 sustained by him in the road traffic accident against the Respondents 1 and 2.

2. Petitioner made 2 Respondents, viz., Yerramsetti Amarnadh and

United India General Insurance Company Limited. Notice to Respondents 1 and 2 is served. 1st Respondent remained exparte. 2nd Respondent alone has contested and represented through it‟s counsel.

Case of the Claim Petitioner:

3. The Petitioner pleads that on 10.02.2018 at 8:45 A.M., while the

Petitioner and another individual were traveling in a Maruti car bearing registration number AP10J 7074 (hereinafter referred to as the „car‟) from

Eluru to Hanuman Junction, they reached near C.R.R. Engineering

College, Eluru. At that time, another car bearing registration number AP37

DE 6355 (hereinafter referred to as the „offending vehicle‟), driven by the 1st

Respondent, who is the driver-cum-owner, was coming from Hanuman

Junction towards Eluru. The 1st Respondent was driving in a rash and negligent manner at high speed and suddenly collided with the Petitioner‟s car coming from the opposite direction. The Petitioner sustained severe multiple injuries as a result of the accident, which occurred solely due to the rash and negligent driving of the 1st Respondent.

4. The Petitioner states that immediately after the accident, he was shifted to the Government. From the Government Hospital, Eluru, the

Petitioner was shifted to Dr. M.J. Naidu Super Specialty Hospital,

Vijayawada, where Dr. M.J. Naidu attended to his treatment. The Petitioner sustained severe bodily injuries and underwent the following operations:

3

1. ORIF with TBW K-wire fixation of the right patella.

2. ORIF with plating of the left femur condyle.

3. Right femur interlocking nail procedure on 12.02.2018.

4. ORIF with screw fixation and K-wire fixation of the right talus along with POP on 17.02.2018.

5. The Petitioner spent nearly Rs.6,00,000/- on medicines, Doctor fees, and other medical expenses. Due to the injuries sustained, he is unable to move freely, squat, or climb staircases. Since the date of the accident, he has been confined to bed and has lost his total earning capacity.

6. The Petitioner further pleads that he was 30 years old at the time of the accident. He was previously working as an Associate Software

Engineer at Placed Cyber Labs and had recently secured an appointment with Spectra, Hyderabad, with a salary of Rs.20,000/- per month. Due to this accident, the Petitioner has become permanently disabled. He sustained major injuries and lost his ability to perform his work efficiently.

7. A crime was registered against the 1st Respondent under Section 338 of the IPC. The 1st Respondent holds a valid and effective driving licence. Being the owner of the offending vehicle, which was validly insured with the 2nd Respondent, the 1st Respondent and 2nd Respondent are jointly and severally liable to compensate the Petitioner. Hence, the

Petitioner seeks compensation of Rs.15,00,000/- under the following heads.

Sl.No Heads Calculation(Rs.)

1 Pecuniary Damages(SpecialDamages):

Medical expenses if any Rs.6,00,000/- 4 2 Non pecuniary damages(General Damages)

i) Compensation for pain, suffering, mental Rs.1,00,000/- agony and shock. ii) Compensation for the loss of earning power Rs.8,00,000/- and loss of future earnings and for permanent disability. Grand Total Rs.15,00,000/

Defence of the 2 nd Respondent (Insurance Company):

8. The 2nd Respondent opposed the Petition and filed a written statement denying the age, occupation, and earnings of the Petitioner. It also denied the manner in which the accident is alleged to have occurred.

The 2nd Respondent refuted the claim that there was any rash and negligent act by the 1st Respondent. Furthermore, it denied the nature of injuries sustained by the Petitioner, the surgeries he underwent, and the expenditure incurred. It also disputed the Petitioner‟s occupation.

9. The 2nd Respondent contended that it was the Petitioner who drove the car in a rash and negligent manner, thereby contributing to the accident. It argued that the claim for compensation is excessive.

Additionally, it stated that there were violations of the terms and conditions

of the insurance policy. The 2nd Respondent alleged that the 1st

Respondent did not possess a valid driving licence and, therefore, it is not liable to pay any compensation. Based on these submissions, the 2nd

Respondent sought the dismissal of the claim against it.

ISSUES:

10. After completion of pleadings, the following issues are settled for determination:

5

1. Whether the Petitioner sustained injuries in a motor vehicle accident occurred on 10.02.2018 at about 8.45 A.M. near C.R.R. Engineering College, Vatlu- ru, Pedapadu Mandal of West Godavari District on account of rash and negligent driving of Car bear- ing No.AP37 DE 6335 (T/R No.AP37 TR 5207) dri- ven by it‟s driver cum owner 1st Respondent?

2. Whether the 1st Respondent has got valid driving li- cense at the time of accident?

3. Whether the Petition is bad for non-joinder of prop- er and necessary parties?

4. To what relief?

11. On perusal of the record, issue is not settled as to liability. Hence,

additional issue is recasted as follows:

Whether the Petitioner is entitled to compensation, if so, from whom and to what amount?

Both counsels are informed and both counsels reported that the evidence available on record is sufficient. Hence, proceeded further.

Evidence:

12. Petitioner let in evidence examining himself as PW-1, examined Dr.

M.J. Naidu as PW-2 before the advocate commissioner. Ex.A-1 to Ex.A-15 are marked. Through PW-2, Ex.X-1 case sheet is marked.

13.2nd Respondent examined it‟s official Krishna Naik Menavath as RW- 1 and summoned Sri P.Raja Kiran Kumar, Sr. Assistant of D.T.C. Office,

Eluru and examined as RW-2. 2nd Respondent exhibited Ex.B-1 Insurance 6

Policy. Through RW-2, Ex.X-2 Authorization letter along with driving license report are marked.

14. 2nd Respondent filed an application I.A.No.249/2024 u/s.170 of M.V.

Act seeking permission to take all the defenses on behalf of the 1st

Respondent. The same is allowed permitting the 2nd Respondent to take all defenses available to 1st Respondent on 26.02.2024.

Arguments:

15.After the completion of evidence, both the learned counsel for the

Petitioner and the 2nd Respondent submitted their arguments. Apart from oral submissions, both counsels also filed written arguments.

16. The learned counsel for the Petitioner, Sri E.Thukaram, argued that the evidence of RW-2 claims there was no valid driving licence, but this is not true. Even otherwise, when the evidence of PW-1 points to the rash and negligent driving of the 1st Respondent, the burden lies on the Respondents to prove that there was no such rash and negligent driving. The

Respondents did not produce evidence through any eyewitnesses. Relying on the FIR and charge sheet, it is evident that the 1st Respondent committed the negligent act. The insurance company contended that the

FIR was issued on 06.03.2018, after a lapse of 25 days. However, the evidence presented by the Petitioner shows that the intimation from the hospital was given immediately after the accident occurred. If the prosecution delayed the registration of the FIR, the Petitioner cannot be expected to expedite the process, as he was hospitalized during that period.

17. The learned counsel further submitted that the 2nd Respondent, through the evidence of RW-2, claimed that the 1st Respondent did not 7 have a valid driving license. Even in such a case, the 2nd Respondent is obligated to pay the compensation and recover the amount from the 1st

Respondent. The 2nd Respondent cannot be exonerated from its liability.

18. The Petitioner provided evidence regarding his salary, which was

Rs.20,000/- per month. Additionally, medical bills marked as Ex.A-8 and

Ex.A-10 support the expenditure incurred for treatment. The evidence of the doctor corroborates this. Therefore, the claim is not excessive but, in fact, less than what the Petitioner is entitled to. The Petitioner is 30 years old, and applying a multiplier of 17, the claim for compensation is appropriate. The learned counsel, therefore, sought to allow the Petition.

19. Petitioner along with written arguments has relied on the following rulings:

1. Rajkumar v. Ajaykumar and another 1

2. D. Krishnaveni & others, v. Md. Sikander and another 2

3. Kasthuri & others, V. M. Gopu and others 3

4. Iffco Tokio General Insurance Company Limited, V. K. Prabhakar Reddy and another 4

5. Oriental Insurance Company Limited, V. M.K. Sharma and oth- ers 5

6. Rajesh and others, V. Rajbhir Singh and others 6 20. The learned counsel for the 2nd Respondent, Smt. K. Kalyani, apart from oral submissions, also presented written arguments contending that the 1st Respondent did not have a valid driving license. Ex.X-2 reveals that 12011 ACJ 1 22009 (6) ALT 620 32015 ACJ 2711 42015 ACJ 389 52015 ACJ 2639 62013 ACJ 1403 8 no data is available to confirm that the 1st Respondent possessed a valid driving license, and the issuing office confirmed that no such license was issued. In such circumstances, the lack of a valid driving license by the 1st

Respondent clearly indicates a violation of the terms of the insurance policy. This violation exonerates the 2nd Respondent from liability to pay compensation.

21.The FIR reveals that the Petitioner contributed to the negligence that led to the accident. There was a delay of 25 days in registering the FIR, and the Petitioner failed to provide a proper explanation for this delay. The medical bills marked as Ex.A-7 to Ex.A-9 are alleged to be not genuine.

The individual who issued the Ex.A-7 medical bills was not examined, and the bills were issued by different persons. In Ex.A-9, the patient‟s name differs. Additionally, there is no formal evidence of disability, as the testimony of Doctor PW-2 does not support the Petitioner‟s claim of permanent disability. Regarding the loss of income, the Petitioner stated in the FIR that he was engaged in business, not working as a Software

Engineer. Therefore, the Petitioner‟s occupation is questionable.

22. Regarding the violation of the insurance policy due to the 1st

Respondent‟s lack of a valid driving licence, the argument is that the 1st

Respondent is the driver-cum-owner of the offending vehicle. Hence, his knowledge of driving cannot be questioned solely due to the absence of a valid license. Therefore, the 2nd Respondent argued that it should be exonerated from liability. However, in case liability is fixed, the 2nd

Respondent requested a direction allowing it to recover the amount from the 1st Respondent. Based on these submissions, the 2nd Respondent sought dismissal of the Petition.

9 23. Heard both sides and perused the record.

Discussion:

24. ISSUE Nos.1 & 3:

Whether the Petitioner sustained injuries in a motor vehicle accident occurred on 10.02.2018 at about 8.45 A.M. near C.R.R. Engineering College, Vatluru, Pedapadu Mandal of West Godavari District on account of rash and negligent driving of Car bearing No.AP37 DE 6335 (T/R No.AP37 TR 5207) driven by it‟s driver cum owner 1st Respondent?

Whether the Petition is bad for non-joinder of proper and necessary parties?

Since both the issues are connected to each other, they are answered together.

25. The Petitioner pleads that the accident occurred due to the rash and negligent driving of the 1st Respondent. Initially, the burden lies on the

Petitioner to prove his contention. Though strict proof of evidence is not required, prima facie evidence is necessary. To support his case, the

Petitioner examined himself as PW-1. As the injured party and the driver of the car at the time of the accident, he is an eyewitness. He filed a chief affidavit aligning with the claims in his Petition, including details of his occupation, the rash and negligent act of the 1st Respondent, and the injuries he sustained.

26.In his cross-examination, the Petitioner deposed that he was hospitalized immediately after the accident. According to him, he was admitted to M.J.Naidu Hospital, Vijayawada, from 10.02.2018 to 10.03.2018. He stated that the police arrived at the accident spot on the 10 same day but did not register a case immediately. He lodged a complaint, and his statement was recorded by the police at M.J. Naidu Hospital, although he could not recall the exact date.

27. Ex.A-1 is the FIR. It includes accident information provided by M.V.S.

Accident Hospital, Vijayawada. However, it does not mention M.J. Naidu

Hospital. The Petitioner clarified that both hospitals are the same. He stated that the doctors did not allow the police into the hospital, which led to the delay in registering the FIR.

28.The Petitioner testified that he was driving a Maruti 800 car at the time of the accident and held a valid driving licence. However, he did not submit his driving licence as evidence. The Maruti car was registered in his friend's name, but he could not identify the owner. He also did not file any insurance policy for the car. His brother-in-law was seated beside him during the accident.

29.The Petitioner denied the suggestion that the accident occurred due to his negligence and not the negligence of the 1st Respondent. The remaining cross-examination focused on the wound certificate and medical bills. Regarding the rash and negligent act, only suggestions were made by the Respondents, with no material evidence provided to disprove the

Petitioner‟s claims of negligence on the part of the 1st Respondent.

30.The 2nd Respondent examined R. Krishna Naik as RW-1. In his chief affidavit, RW-1 did not claim that the Petitioner contributed to the accident.

The affidavit only denied the rash and negligent driving of the 1st

Respondent, stating that the 1st Respondent did not have a valid driving licence and that the 2nd Respondent was not liable to pay compensation.

Notably, RW-1 was not an eyewitness to the accident.

11

31.In his cross-examination, RW-1 stated that Ex.B-1, the insurance policy, was in force at the time of the accident. He admitted he had no personal knowledge of the accident and that the 2nd Respondent did not submit an investigation report. He acknowledged that when a person is admitted to a hospital with injuries, the information should be conveyed to the concerned SHO. He denied the suggestion that there was any delay in lodging the FIR. He also had no documents to prove any negligence on the part of the Petitioner.

32.This evidence indicates that RW-1 was not an eyewitness, and there is no evidence to support the claim that the Petitioner contributed to the accident. In fact, RW-1 admitted there were no documents to substantiate such an allegation.

33.Ex.A-1 FIR, along with the hospital intimation, confirms that the accident occurred on 10.02.2018 at 8:40 A.M. It was issued by M.V.S.

Accident Hospital, Vijayawada, and includes a statement from a witness who stated that the offending vehicle came from the opposite direction, collided with the Petitioner‟s car, and caused injuries. Ex.A-3, the charge sheet, supports the Petitioner‟s version of events. Based on the oral evidence of PW-1, it is clear that while the Petitioner was driving his car, the offending vehicle, driven by the 1st Respondent in a rash and negligent manner, collided with the car. This evidence is reliable and acceptable.

34.There is no contrary evidence to suggest any contributory negligence on the part of the Petitioner. In fact, by claiming contributory negligence, the 2nd Respondent implicitly acknowledges the occurrence of the accident while also admitting some level of negligence by the 1st Respondent. In the absence of evidence from the Respondents regarding contributory 12 negligence, the negligence of the 1st Respondent in driving the offending vehicle is established through the oral and documentary evidence presented by the Petitioner.

35.Therefore, Issue No.1 is answered in favor of the Petitioner, confirming that the accident was caused due to the rash and negligent driving of the 1st Respondent. Issue No.3 is also answered in favor of the

Petitioner, concluding that there was no contributory negligence on his part.

Consequently, the insurance of the Petitioner‟s car is not a relevant consideration, and the Petition is not defective due to non-joinder of proper and necessary parties. Accordingly, Issues Nos.1 and 3 are answered.

ISSUE No.2

Whether the 1st Respondent has got valid driving license at the time of accident?

36. It is an admitted fact by both parties that Ex.B-1 confirms insurance coverage for the offending vehicle in the name of the 1st Respondent.

Therefore, at the time the policy was issued, the vehicle was presumed to have all relevant documents. It is also assumed that the insurance company verified the 1st Respondent‟s driving license. However, there is no evidence to suggest that the insurance company conducted any inquiry regarding the validity of the 1st Respondent‟s driving license.

37.In the evidence of RW-1, the contention is that the 1st Respondent did not possess a valid driving license, as indicated in the charge sheet, where the offence is registered under Section 181 read with Section 3 of the Motor Vehicles Act, 1988. To support its claim, the 2nd Respondent summoned Senior Assistant Raja Kiran Kumar, an official from the RTA, who appeared and testified as RW-2. He presented Ex.X-2, an 13 authorization letter, which reported that, according to the database of the

Deputy Transport Commissioner, Eluru, the 1st Respondent‟s particulars regarding a driving license were not found. RW-2 further deposed that the 1st Respondent did not have a driving license issued by their office.

38. During cross-examination, RW-2 stated that there are entries in their database under the name of the 1st Respondent. However, the search records do not show the issuance of a driving license. This indicates that the 1st Respondent did not possess a valid driving license. If the 1st

Respondent had a valid driving license, it would have been reflected in the database. The relevant person to confirm the existence of a valid driving license is the 1st Respondent himself. However, the 1st Respondent chose not to appear or contest the matter. Therefore, the stand of the 2nd

Respondent that the 1st Respondent did not have a valid driving license must be accepted.

39.Accordingly, Issue No.2 is resolved, confirming that the 1st

Respondent did not have a valid driving license on the date of the accident.

ADDITIONAL ISSUE

Whether the Petitioner is entitled for compensation claimed by her, if so, to what amount and from whom?

40.The claim of the Petitioner is that due to the accident, he sustained various injuries. Under Issue No.1, rash and negligent act of 1st

Respondent is established. With regard to the injuries, the Petitioner is relied on wound certificates. He narrated in his chief that he sustained the following injuries:

i) Comminuted fracture right femur Distal 1/3rd; ii) Right Patella Fracture; 14 iii) Left femur lateral condyle fracture; iv) Right Talus Fracture;

v) Right PCL Avulsion; vi) Right public rami fracture with displacement with diastasis.

41. To support his claim, the Petitioner submitted several documents:

Ex.A-2 wound certificate, Ex.A-4 to Ex.A-6 discharge summaries, Ex.A-7 case sheet, Ex.A-8 final bill for Rs. 5,07,216/-, Ex.A-9 ambulance bill for

Rs. 9,000/-, and Ex.A-10 medical bills amounting to Rs.16,974/-.

42.Regarding the injuries recorded in Ex.A-2 wound certificate, the evidence of PW-2 is relevant. PW-2 reiterated the injuries sustained by the

Petitioner. He deposed that he performed the following operations: ORIF with TBW K-wire fixation of the right patella. ORIF with plating of the left femur condyle on 12.02.2018. Right femur interlocking nail on 12.02.2018.

ORIF with screw fixation and K-wire fixation of the right talus and POP on 17.02.2018.

43. Ex.A-4 to Ex.A-6 are discharge summaries issued by the hospital.

Under Ex.A-5, the Petitioner was readmitted after discharge under Ex.A-4 due to a non-union of the right femur. Consequently, plating and quadriceps plasty were performed. Similarly, for the left knee, quadriceps plasty and

PRP injection were administered. Finally, the Petitioner was discharged on 26.06.2018. Ex.A-4 is the discharge summary, and the hospital issued the corresponding medical bills.

44. PW-2 deposed that the Petitioner is suffering from a limp and has a permanent disability. Further surgeries are required to remove the implants, estimated to cost between Rs.1,50,000/- and Rs. 2,00,000/-.

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45.During cross-examination, PW-2 stated that he did not issue disability certificate. Ex.A-8 lacks the signature of hospital authorities.

Ex.A-10 bills do not disclose that they were issued by M.J. Naidu Hospital,

Vijayawada. The wound certificate was not signed by him but by his assistant doctor, Subrahmanyam. The Petitioner is suffering from four injuries to his right leg and one injury to his left leg.

46.The above evidence supports PW-2‟s testimony regarding the injuries sustained by the Petitioner and the treatment provided. While the 2nd Respondent raised doubts about the FIR being issued by M.V.S.

Accident Hospital, Vijayawada, instead of M.J. Naidu Hospital, Vijayawada,

PW-1 clarified that both hospitals are the same.

47. PW-1 also deposed that the 1st Respondent did not possess a driving license as per the charge sheet. He denied suggestions that he suffers from permanent disability and did not produce any document to confirm permanent disability. He also denied that Ex.A-8 is fabricated and stated he borrowed money for his treatment, though he did not submit evidence for the same. He refuted claims that Ex.A-9 ambulance bills and portions of

Ex.A-10 medical bills were fabricated. Additionally, he denied the suggestion that he was not earning Rs.20,000/- per month.

48.Although the 2nd Respondent raised concerns about the medical bills,

Ex.A-4 to Ex.A-6 discharge summaries remain undisputed. The doctor treated the Petitioner, and the nature of treatment is corroborated by medical records. There is no evidence disputing the qualifications of PW-2 or his association with M.J. Naidu Hospital, Vijayawada. The evidence confirms that the Petitioner was hospitalized for an extended period and sustained injuries.

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49.Relying on Ex.A-2 wound certificate, it is established that the

Petitioner sustained six grievous injuries. The wound certificate, issued by

M.J. Naidu Hospital, Vijayawada and signed by Dr. Subrahmanyam, mentions both M.V.S. Accident Hospital, Vijayawada, and M.J. Naidu

Hospital, Vijayawada, clarifying that they are the same entity.

50. Ex.A-2 wound certificate indicates that the accident occurred on 10.02.2018, but the intimation was provided on 06.03.2018, as per the charge sheet, following which the FIR was issued. However, it is evident that the Petitioner was hospitalized immediately after the accident. The 2nd

Respondent contended that the delay in reporting the accident and issuing the FIR is fatal to the case. Nonetheless, the medical records and charge sheet confirm the date of the accident as 10.02.2018.

51.The nature of injuries, including six grievous ones, makes it improbable that they resulted from a natural fall or altercation. Furthermore, the charge sheet does not suggest that the injuries were unrelated to the accident.

52. As observed by the Hon‟ble Supreme Court in Ravi v. Badari

Narayana, under Indian conditions, it cannot be expected that a common man would immediately rush to a police station after an accident. Human nature and familial responsibilities often prioritize treatment of the victim over prompt filing of an FIR. Delay in lodging an FIR cannot, therefore, be grounds for denying justice to the victim.

53.The above ruling is applicable to the present case. The injuries narrated and corroborated by PW-2 are consistent with the accident. The police recorded the statement and subsequently issued the FIR. Although there was a delay in admitting the Petitioner to the hospital or recording his 17 statement, the evidence, including Ex.A-4 to Ex.A-6 discharge summaries, confirms that the Petitioner was hospitalized from 03.03.2018 for various surgeries. In such circumstances, it is unreasonable to expect immediate police action. Hence, this Tribunal concludes that the delay in lodging the

FIR is not detrimental to the Petitioner‟s case.

Compensation arrived :

54.Considering the nature of injuries, i.e., six grievous injuries, and the absence of any record of permanent disability, this Tribunal determines the following compensation. Pain and suffering for six grievous injuries are assessed at Rs.3,00,000/- (6 x Rs.50,000/-). This Tribunal also awards

Rs.9,000/- towards transportation charges (ambulance charges) and

Rs.15,000/- towards extra nourishment.

55. With regard to the income of the Petitioner, he relied on Ex.A-11 to

Ex.A-13, which includes the appointment letter, increment letter, and certificate issued by his employer. However, no person who issued these certificates was examined. Therefore, a notional income of Rs.20,000/- per month is considered. The loss of income during the period of treatment, i.e., for three months, is awarded at Rs.60,000/-. There is no document to substantiate that the Petitioner suffered permanent disability.

56. Ex.A-8 final medical bill and Ex.A-10 bunch of medical bills indicate that the Petitioner incurred an expenditure of Rs.5,24,190/-. Hence, this

Tribunal awards Rs.5,24,190/- towards medical bills and an additional amount of Rs.50,000/- towards future medical expenses.

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57.Since the Petitioner underwent treatment at M.J. Naidu Hospital for fractures, it is evident that he required an attendant. Therefore, attendant charges of Rs.10,000/- are granted.

58.Based on the above discussion, the just compensation to the

Claimant, considering the nature of injuries and treatment, is calculated as follows:

Sl.No Heads Calculation(Rs.)

1 Pecuniary Damages (Special Damages):

Transportation Charges (Ambulance) Rs.9,000/-

Personal attendant Charges Rs.10,000/-

a) Loss of earning during the period of Rs.60,000/- treatment (three months) 2 Non pecuniary damages(General Damages)

(i) Medical bills Rs.5,24,190/-

Pain and suffering (6 x 50000) Rs.3,00,000/-

(ii) Future medical expenses Rs.50,000/-

(iii) Extra-nourishment Rs.15,000/-

Grand Total Rs.9,68,190/-

For the above discussion, this Tribunal arrives just and reasonable compensation is at Rs.9,68,190/-.

Liability:

59. The 2nd Respondent has taken a stand to exonerate its liability on the grounds that there was a delay in lodging the FIR and that the 1st 19

Respondent had no valid driving license. It also contended contributory negligence. The above three points of defense from the 2nd Respondent have been addressed by this Tribunal. This Tribunal holds that the delay in lodging the FIR is not fatal, in view of the ruling of the Hon‟ble Supreme

Court in Ravi v. Badari Narayana. With the available evidence on record, this Tribunal holds that there is no contributory negligence on the part of the

Petitioner. Based on the evidence of PW-1, RW-1 and RW-2, and relying on Ex.X-2, it is clear that the 1st Respondent has no valid driving license.

Since two of the defenses from the 2nd Respondent have been answered in favor of the Petitioner, and the matter of the driving license has been settled, with the 1st Respondent found to have no valid driving license, liability must be accepted.

60. I have reviewed the record, including Ex.B-1, the insurance policy, wherein an important note is recorded as follows:

“The insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this schedule. Any payment made by the company by reason of wider terms appearing in the certificate in order to comply with the Motor Vehicles Act, 1988, is recoverable from the insured.”

The said clause indicates that if the vehicle is used or driven otherwise than in accordance with the schedule, any payment made by the company shall be recoverable from the insured, i.e., the 1st Respondent.

The document itself reserves the recovery option for the insurance company. In the written arguments of the 2nd Respondent at para No. 11, it is argued that if there is liability for the 2nd Respondent, the 2nd Respondent may be permitted to pay and recover the amount as contemplated under

Sec.149(2) of the MV Act.

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61.Under Issues No. 1 and 3, this Tribunal holds that the accident, which led to the Petitioner‟s injuries, was caused by the rash and negligent driving of the 1st Respondent. There is no contributory negligence, and the delay in lodging the FIR is not fatal. Even the lack of a driving license for the 1st Respondent, in view of the clause under Ex.B-1, does not exonerate the 2nd Respondent from its liability. However, the 2nd

Respondent can recover the amount already paid.

62.In the case of National Insurance Company Ltd. v. Swaran Singh and Others, it was held that in cases of third-party liability under

Sec.149(1) of the MV Act, the insurer should pay first to the third parties and then recover the amount if they are absolved on any of the grounds specified in sub-section (2) thereof. The same principle was followed in

Shamanna v. Oriental Insurance Co. Ltd. and Parminder Singh v. New

India Assurance Co. Ltd.

63.With the support of the above rulings and those relied upon by the

Petitioner, along with the argument of the 2nd Respondent, the liability of the 2nd Respondent cannot be exonerated. The 2nd Respondent must pay the amount, and it can recover the same from the 1st Respondent. The reason is that the 1st Respondent, being the owner of the offending vehicle, must have known that he lacked a valid driving license. Despite this, he drove the offending vehicle, which constitutes a violation with knowledge.

Therefore, the liability of the 1st Respondent continues. The 2nd

Respondent, being the insurer, is required to pay the compensation.

64.In light of the foregoing discussion, this Tribunal holds that the 2nd

Respondent, being the insurer of the offending vehicle as of the date of the 21 accident, is liable for the negligent act of the 1st Respondent. Under

Sec.149(1) of the MV Act, the 2nd Respondent is directed to pay the compensation amount and recover the same from the 1st Respondent.

Accordingly, the additional issue is answered.

Issue No.4: To what relief?

65.Under Issues No. 1 and 3, this Tribunal holds that the accident was caused due to the rash and negligent act of the 1st Respondent and there is no contributory negligence on the part of the Petitioner. Therefore, the petition is not defective for non-joinder of parties. For the negligent act of the 1st Respondent, although the 1st Respondent did not have a valid driving license as of the date of the accident, under Sec. 149(1) of the MV

Act, the 2nd Respondent cannot be exonerated. Respondent Nos. 1 and 2 are jointly and severally liable to pay compensation, with the liberty to the 2nd Respondent to pay the compensation and recover the same from the 1st Respondent. Accordingly, Issue No. 4 is answered.

In the result, the Petition is allowed in part with proportionate costs, awarding compensation of Rs.9,68,190/- (Rupees nine lakhs sixty eight thousand one hundred and ninety only) with interest thereon at 7.5% per annum from the date of Petition till the date of realization, jointly and severally liable to pay the Award amount by the Respondents 1 and 2.

(i) Respondents 1 and 2 are directed to deposit the compensation amount within three months from the date of this order.

(ii) On payment of compensation amount by Respondent No.2, the Respondent No.2 is permitted to recover the said amount of compensation from Respondent No.1 under due process of law.

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(ii) On deposit of said amount, the Petitioner is permitted to withdraw entire compensation amount of Rs.9,68,190/- along with costs and accrued interest thereon.

(v) Advocate fee is fixed at Rs.3,000/-.

(vi) Rest of the claim of the claimant is dismissed without costs.

Partly dictated to Stenographer Gr.I and Gt.II, transcribed by them, corrected, signed on the draft Judgment and pronounced by me in open Court on this the 21 st day of January, 2025 and digitally signed. Digitally signed by C

PURUSHOTTAM

KUMAR

CHAIRMAN,

MOTOR ACCIDENTS CLAIMS TRIBUNAL-CUM-

PRINCIPAL DISTRICT JUDGE,

WEST GODAVARI, ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PETITIONER

P.W.1 Garapati Srinivas

P.W.2 Dr.M.J.Naidu

WITNESSES EXAMINED FOR 2 nd RESPONDENT

R.W.1 R.Krishna Naik Menavath

R.W.2 Raja Kiran Kumar

EXHIBITS MARKED FOR PETITIONER

Ex.A.1 -- Attested copy of FIR in Cr.No.76 of 2018 of Eluru III town P.S. Ex.A.2 -- Attested copy of wound certificate. Ex.A.3 -- Attested copy of charge sheet

Ex.A.4 -- First Discharge summary

Ex.A.5 -- 2nd discharge summary 23

Ex.A.6 -- 3rd discharge summary

Ex.A.7 -- Case sheet

Ex.A.8 -- Final Bill for Rs.5,07,216/-

Ex.A.9 -- Two Ambulance Bills for Rs.9,000/ Ex.A.10 -- Bunch of medical bills (10 in number) for Rs.16,974/-

Ex.A.11 09.03.2015 Appointment letter

Ex.A.12 20.03.2017 Increment letter

Ex.A13 22.01.2018 Certificate issued by employer

Ex.A.14 -- Bunch of x-rays (18 in number)

Ex.A.15 22.01.2018 Relieving letter issued by employer.

EXHIBITS MARKED THROUGH P.W.2

Ex.X.1 -- Case sheet.

EXHIBITS MARKED FOR 2 ND RESPONDENT

Ex.B.1 -- Copy of insurance policy.

EXHIBITS MARKED THROUGH R.W.2

Ex.X.2 -- Authorization Letter.

Digitally signed by C

PURUSHOTTAM

KUMAR

CHAIRMAN (M.A.C.T.)

Cum-P.D.J.,

W.G., ELURU.

Copy to

1. Sri E.Thukaram, Advocate for Petitioner.

2. Smt.K.Kalyani, Advocate for the 2nd Respondent.

APWG000031602017

IN THE COURT OF PRINCIPAL DISTRICT JUDGE,

WEST GODAVARI:: ELURU.

Present: PURUSHOTTAM KUMAR CHINTALAPUDI

Principal District Judge,

West Godavari, Eluru.

Wednesday, on this the 22nd day of January, 2025

ORIGINAL SUIT No.159 of 2017

Between:-

Chilakalapudi Gowtham Kumar. … Plaintiff.

Versus

1. Jasti Indra Bhogeswara Rao (died).

2. Maganti Ravi Kiran.

3. Smt. Jasti Dhanalakshmi.

4. Jasti Rambabu.

5. Smt. Mallampalli Leela Rani. … Defendants. (Defendants 3 to 5 were added as L.Rs. of 1st Defendant as per the orders on I.A.No.4 of 2023, dated 04.07.2023).

This suit has come on 26.12.2024 for final hearing before me in the presence ofSri E. Srinivasa Babu, Advocate for Plaintiff and of Sri M. Lakshmana Kumar, Advocate for the 2nd Defendant; Sri B. Seetharamaiah, Advocate for the Defendants 3 to 5 and upon perusing the material paper available on record, this day, this Court delivered the following:

J U D G M E N T

1. Mr. Chilakalapudi Gowtham Kumar initially filed this suit against

Defendants 1 and 2, namely, Mr. Jasti Indra Bhogeswara Rao and Mr.

Maganti Ravi Kiran, seeking relief by way of a decree for specific 2 performance of a contract dated 10.11.2015. The Plaintiff prayed for a direction to both Defendants to execute a regular registered sale deed in his favour for the Plaint Schedule Property or, in the alternative, to pass a decree for Rs.28,03,460/- with interest on the principal amount of

Rs.21,60,000/-.

2.During the course of the proceedings, the 1st Defendant passed away. His legal representatives, Smt. Jasti Dhanalakshmi, Mr. Jasti

Rambabu, and Smt. Mallampalli Leela Rani, were impleaded vide orders in

I.A. No. 4 of 2023, dated 04.07.2023. Accordingly, the plaint was amended.

The relief sought was amended to direct Defendants 2 to 5 to execute a registered sale deed in favour of the Plaintiff on the strength of the agreement of sale dated 10.11.2015 or, in the alternative, to refund the advance amount with interest.

3.Initially, Defendants 1 and 2 were served with summons.

Subsequently, after the impleadment of Defendants 3 to 5, they were also served with summons, and respective counsels represented Defendants 2 to 5.

Brief Facts of the Case:

4.The Plaintiff asserts that the 1st Defendant was the absolute owner of the Plaint Schedule Property. During his lifetime, the 1st Defendant offered to sell the property to the Plaintiff, and the Plaintiff agreed to purchase the same for a total consideration of Rs.21,60,000/- for item Nos. 1 and 2. On 10.11.2015, the 1st Defendant entered into an agreement of sale with the

Plaintiff, setting out terms and conditions. Under the terms of the agreement, out of the total sale consideration, an amount of Rs.18,60,000/- was paid, and the balance amount was to be paid at the time of registration 3 whenever the Plaintiff was ready with the balance sale consideration. By that time, the 1st Defendant was required to be ready with the original records, and item No. 2 was to be completed by construction.

5.Item No. 1 refers to a plot, while item No. 2 refers to a flat. Since the flat was not constructed, a regular sale deed could not be executed.

Meanwhile, the Plaintiff discovered that the 1st Defendant, with fraudulent intentions to defraud the Plaintiff, had colluded with the 2nd Defendant, who is a close relative of the 1st Defendant, and executed a regular registered sale deed dated 22.03.2017. The said document, according to the Plaintiff, is not binding. Despite the Plaintiff being ready with the balance amount, the 1st Defendant failed to fulfill his obligation. Hence, the Plaintiff filed the suit for specific performance, directing the 1st Defendant to execute a regular sale deed in his favour, claiming a prior right.

6.The Plaintiff described the properties as item Nos. 1 and 2. Item No.

1 is a plot measuring 1165 sq. yds., where an apartment named “Indra

Bhavan” was under construction. Item No. 2 pertains to an undivided share of 45 sq. yds. in R.S. No. 60/2 and Flat No. 202 in R.S. No. 60/2, with an extent of 1200 sq. ft.

Defense of the 1 st Defendant:

7.During his lifetime, the 1st Defendant independently filed a written statement. He admitted ownership of the Plaint Schedule Properties (item

Nos. 1 and 2) but denied entering into any agreement of sale with the

Plaintiff. He denied executing any sale deed on 10.11.2015, agreeing to a sale consideration of Rs.21,60,000/-, or receiving any advance amount of

Rs.18,60,000/-. The 1st Defendant also denied any mala fide sale of the

Schedule Property to the 2nd Defendant.

4

8.The 1st Defendant asserted that, as the owner of the Plaint Schedule

Property, he had sold the same to the 2nd Defendant under a registered sale deed dated 22.03.2017, transferring absolute rights and delivering possession. The 2nd Defendant became the absolute owner of the Schedule

Property and has been enjoying the same. The Plaintiff has no rights or interest in the property, and the relief for specific performance is not maintainable.

9.The 1st Defendant also stated that he was suffering from ill health and was bedridden with serious ailments. He alleged that the Plaintiff might have taken advantage of his condition and created a fraudulent agreement of sale. Prior to the filing of the suit, there was an exchange of notices between the Plaintiff and the 1st Defendant. In response, the 1st Defendant denied the allegations and sought a copy of the alleged agreement of sale

dated 10.11.2015, which the Plaintiff failed to provide. He denied all

allegations regarding fraud and sought dismissal of the suit as baseless and mala fide.

Defense of the 2nd Defendant:

10.The 2nd Defendant filed a written statement, denying the Plaintiff‟s claims entirely. While admitting the 1st Defendant‟s ownership of the Plaint

Schedule Property, the 2nd Defendant denied the existence of any agreement of sale between the 1st Defendant and the Plaintiff, including any discussions or payment of part consideration. He also denied allegations of fraudulent collusion with the 1st Defendant.

11.The 2nd Defendant stated that the 1st Defendant had entered into a development agreement with “Green Time Projects,” represented by its partner Chittoori Indra Kumar, for the construction of the apartment named 5 “Indra Bhavan.” The 2nd Defendant claimed to have entered into an agreement with the 1st Defendant for purchasing the Plaint Schedule

Property. He asserted that he had paid valuable consideration under the sale deed.

12.The 2nd Defendant also disclosed that he had obtained a loan of

Rs.19,00,000/- from the State Bank of India for the purchase of the property, which was priced at Rs.21,60,000/-. Of this amount,

Rs.19,00,000/- was obtained as a loan, and Rs.2,60,000/- was paid directly by the 2nd Defendant. Upon execution of the sale deed, the 1st Defendant delivered possession of the property to him. The 2nd Defendant, after acquiring the property, began development work through “Green Time

Projects,” as he held absolute rights.

13.The 2nd Defendant claimed that the 1st Defendant never executed any agreement of sale in favour of the Plaintiff, and the alleged document was forged and fabricated. Since the alleged agreement was not registered, the

Plaintiff could not assert any claim against the Plaint Schedule Property.

The 2nd Defendant argued that the agreement was inadmissible under

Section 17(1)(e) of the Registration Act. Additionally, the Plaintiff failed to express readiness and willingness to fulfill his obligations under the agreement, as required under Section 16 of the Specific Relief Act. The suit, therefore, is not maintainable, and the 2nd Defendant sought its dismissal.

14. With the above plea of both parties, this court settled the following issues for trial:

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1. Whether the suit document, i.e., agreement of sale

dated 10.11.2015 is true, valid and binding on the De-

fendants?

2. Whether the Plaintiff is entitled to specific performance of agreement of sale dated 10.11.2015 (or) in the alternative whether the Plaintiff is entitled to the refund of amount of Rs.28,03,640/-?

3. To what relief?

Defense of Defendants 3 to 5:

15.Subsequently, as stated above, upon the demise of the 1st

Defendant, his legal representatives, Defendants 3 to 5, were impleaded.

The 5th Defendant filed a written statement, which was adopted by

Defendants 3 and 4, denying the existence of any agreement of sale in favour of the Plaintiff through the 1st Defendant. They denied that any advance sale consideration was received. They took the stand that the 1st

Defendant had already issued a reply legal notice to the Plaintiff, but no rejoinder was received. The 1st Defendant executed a registered sale deed in favour of the 2nd Defendant on 22.03.2017, as the 1st Defendant was the absolute owner of the Schedule Property. They further contended that there was no mention in the agreement of sale that the 1st Defendant was obligated to complete the construction of the flat, i.e., item No. 2. When the

Plaintiff is not ready and willing to perform his obligation, and without such a plea, the Plaintiff cannot seek the relief of specific performance. Hence, they sought dismissal of the suit.

Rejoinder of the Plaintiff:

16. The Plaintiff, responding to the additional written statement filed by

Defendants 3 to 5, filed a rejoinder denying the case of Defendants 3 to 5, 7 including the claims that the agreement of sale was fabricated and that the

Plaintiff was not entitled to relief. The Plaintiff denied that he had failed to plead readiness and willingness in the legal notice. He also denied the assertion that there was no mention of the 1st Defendant‟s obligation to complete the construction of item No. 2.

17.In the rejoinder, the Plaintiff contended that the additional written statement was filed with ulterior motives. The stand taken by Defendants 3 to 5 was an invented one and was additional to the stand of the 1st

Defendant. The Plaintiff claimed that the sale deed executed in favour of the 2nd Defendant by the 1st Defendant was fabricated and reiterated his request for a decree in his favour.

18.On considering the above pleadings, and in view of the impleadment of the legal representatives of the 1st Defendant upon his demise, the following additional issue was framed on 29.11.2023:

Whether the Plaintiff is ready and willing to perform his part of the contract?

Evidence:

19. Plaintiff let in evidence examining himself as PW-1. Plaintiff exhibited the documents Ex.A-1 to Ex.A-7. In confrontation, Ex.B-1 and Ex.B-2 are marked during the cross-examination of PW-1. For the Defendants, 5th

Defendant is examined as DW-1, 2nd Defendant is examined as DW-2 and no documents are marked on their behalf.

Proceedings before this court:

20.It is relevant to refer to the proceedings before this court. PW-1 was initially examined in the witness box, and Defendants 3 to 5 cross-examined 8

PW-1. Exhibits B-1 and B-2 were marked. Subsequently, when the matter was scheduled for cross-examination by the 2nd Defendant, PW-1 did not appear from 29.04.2024 onwards. The matter was conditionally posted for the appearance of PW-1 on payment of costs. However, PW-1 neither appeared nor paid the costs. Consequently, the cross-examination of PW-1 was treated as nil, granting the 2nd Defendant the liberty to draw inferences favourable to her case. The matter was then posted for further evidence of the Plaintiff. Meanwhile, the matter was referred to PLAPUS for mediation but was reported as not settled. Subsequently, there was no representation from the Plaintiff, and the matter was posted for the Defendants' evidence.

21.For the Defendants, the 5th Defendant was examined as DW-1.

Although DW-1 appeared, the 2nd Defendant reported that there would be no cross-examination. DW-1 was not cross-examined by the Plaintiff. The

Plaintiff's counsel reported that they had no instructions from the Plaintiff.

Thereafter, the 2nd Defendant filed a chief affidavit, being examined as DW- 2. Defendants 3 to 5 reported no cross-examination. DW-2 was also not cross-examined by the Plaintiff, and the evidence was treated as nil. The

Defendants' evidence was then closed. Subsequently, the Plaintiff neither appeared nor was represented. Defendants 2 to 5 submitted their arguments, and the 5th Defendant filed written arguments along with citations.

22. While going through the record, it is noticed that, in the docket proceedings dt.03.09.2024 by oversight, the Plaintiff evidence was not recorded as closed and it is posted for Defendant evidence. Notice given to both counsels and both reported no objection. Hence, docket proceedings dt.03.09.2024 is corrected in continuation as „Plaintiff evidence is closed‟.

9

Arguments:

23. During the course of the hearing, the learned counsel for the 2nd

Defendant, Sri M.Lakshman Kumar, argued that the Plaintiff failed to establish his case that the agreement of sale was valid. The Plaintiff did not subject himself to cross-examination by the 2nd Defendant and failed to examine any of the attestors or the scribe to prove the document.

Furthermore, there was no reference to the names of the attestors or the scribe in the Plaintiff's pleadings.

24.The learned counsel submitted that the Plaintiff is a chronic litigant and had previously instituted multiple suits for the same relief, all of which were dismissed. He argued that the Plaintiff had not come forward with any valid or consistent stand. The document relied upon by the Plaintiff was inadmissible in evidence. Since the Plaintiff failed to provide valid evidence and did not refute the Defendants' stand, he was not entitled to the relief sought and the suit should be dismissed.

25.The learned counsel for Defendants 3 to 5, in their written arguments, submitted that PW-1 admitted in his evidence that, as per Ex.A-1, he was required to be ready with the balance sale consideration. However, he did not issue any legal notice to the 1st Defendant prior to Ex.A-3. Therefore, the Plaintiff‟s readiness and willingness were not evident, even as per his own statements. Moreover, PW-1 deposed that he agreed to purchase Flat

No.202, which was contrary to the alleged agreement of sale. PW-1 further admitted that Ex.A-1 contained no stipulation that the sale deed would be executed after the construction of the building or that the 1st Defendant would complete the construction. PW-1 also admitted that he did not send a copy of the agreement of sale in his reply notice to the 1st Defendant.

10

26.The learned counsel further submitted that, after the issuance of the legal notices Ex.A-3 and Ex.A-6, the Plaintiff issued Ex.B-1 notice, to which the 1st Defendant replied under Ex.B-2. The Plaintiff wilfully suppressed this fact, which demonstrated that he had not approached the court with clean hands. Furthermore, multiple suits had been filed by various individuals against the 1st Defendant for different flats allegedly sold to them. These suits include:

O.S.No.158 of 2017 filed by Kamma Krishna, dismissed for

default.

O.S.No.50 of 2018 filed by Kamma Krishna, dismissed for

default.

O.S.No.160 of 2017 filed by V.V. Reddy, dismissed for default.

O.S.No.49 of 2018 filed by Kamma Sambasivara Rao,

dismissed on merits.

O.S.No.46 of 2018 filed by Kamma Bala Gangadhar Tilak,

pending, with the trial yet to commence.

27.The filing of these suits indicated that a single person was orchestrating these engineered suits. Therefore, the Plaintiff was not entitled to any relief. The learned counsel relied on the following citations:

Lourdu Mari David and Others vs Louis Chinnayya

Arogiaswamy and Others

Muddasani Venkata Narasaiah (Deceased) through

L.Rs. vs Muddasani Sarojana

28. The arguments of the learned counsel for the Defendants were heard, and the record and written arguments of Defendants 3 to 5 were perused.

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Discussion:

Issue Nos.1 and 2 & Additional Issue

Whether the suit document, i.e., agreement of sale dated 10.11.2015 is true, valid and binding on the Defendants?

Whether the Plaintiff is entitled to specific performance of agreement of sale dated 10.11.2015 (or) in the alternative whether the Plaintiff is entitled to the refund of amount of Rs.28,03,640/-?

Whether the Plaintiff is ready and willing to perform his part of contract?

29.Since all the issues are connected to each other, three issues are discussed hereunder.

30.The case of the Plaintiff is that the 1st Defendant entered into an agreement of sale with the Plaintiff on 10.11.2015 by receiving part consideration and agreed to register the property in his name upon the construction of the flat. However, the 1st Defendant allegedly executed a registered sale deed in favour of the 2nd Defendant on 22.03.2017 under

Ex.A-2. There was an exchange of legal notices.

31. The Plaintiff, having approached the court claiming the right to seek relief, bears the burden of proving his case independently, without relying on the weaknesses of the Defendants. The Plaintiff filed a chief affidavit reiterating the pleadings in the plaint. In his cross-examination, he admitted that he did not issue any legal notice to the 1st Defendant prior to Ex.A-3 legal notice. He stated that he was aware of the contents of Ex.A-1 and further admitted that, as per the terms of Ex.A-1, the 1st Defendant was obligated to execute the regular sale deed only after the Plaintiff was ready 12 with the balance consideration of Rs.3,00,000/- and informed the 1st

Defendant accordingly.

32.The above statement of PW-1 indicates that the primary condition for registering the property was that the Plaintiff should be ready with the balance sale consideration. Before Ex.A-3, the Plaintiff neither issued any legal notice to indicate his readiness with the balance sale consideration nor offered the amount. He also deposed that Ex.A-1 does not specify that the sale deed shall be executed upon the completion of the building. Thus, the Plaintiff‟s testimony contradicted his pleadings. While his pleadings indicated that the balance consideration was to be paid upon the completion of the building, his testimony in court reflected that Ex.A-1 stipulated no such condition and instead required the Plaintiff to be ready with the balance consideration before registration.

33. Ex.A-1 refers to Flat No.203, whereas Ex.A-2 refers to Flat No.202.

The Plaintiff admitted that he did not send a copy of the agreement of sale to the 1st Defendant in response to the reply notice, despite being requested to do so. He also admitted that, after issuing the first legal notice, he issued another legal notice on 06.09.2017, and the 1st Defendant responded to this second notice, as evidenced by Ex.B-1 (second legal notice) and Ex.B-2 (reply). However, the Plaintiff neither referred to Ex.B-1 and Ex.B-2 in his pleadings nor explained their omission in his chief affidavit. Ex.B-1 was issued to the 1st Defendant but not to the 2nd Defendant. Additionally, identical suits were filed by individuals such as Kamma Krishna, Kamma

Sambasivarao, Bala Gangadhar Tilak, and V.V. Reddy, all relying on allegedly identical agreements purportedly executed by the 1st Defendant.

The Plaintiff did not make the children of the 1st Defendant parties to the present suit and denied that Ex.A-1 was a forged document.

13

34.The cross-examination by Defendants 3 to 5 revealed that Ex.A-1 did not impose any obligation on the 1st Defendant to complete the building; instead, it stipulated that the Plaintiff should be ready with the balance sale consideration. Since the Plaintiff was required to demonstrate his readiness and willingness, the burden of proof rested upon him.

35.The primary defence of the Defendants was that the Plaintiff did not state that he was ready with the balance sale consideration or willing to perform his obligation. PW-1‟s own testimony confirmed the condition requiring him to pay the balance amount before the 1st Defendant would execute the sale deed. Despite this, the Plaintiff neither pleaded nor demonstrated his readiness with the amount. Furthermore, the Plaintiff filed the suit after a delay of two years, despite there being no condition obliging the 1st Defendant to delay performance.

36.It is significant that PW-1 did not make himself available for cross- examination by the 2nd Defendant, who is the purchaser of the plaint schedule property under Ex.A-2 for valid consideration. By failing to appear for cross-examination, the 2nd Defendant‟s stance that he is a bona fide purchaser and that Ex.A-1 is a fabricated document remained unchallenged. The Plaintiff did not examine any independent witnesses, such as the attestors or scribe of Ex.A-1, to support his claims. Moreover, the Plaintiff‟s pleadings and PW-1‟s testimony lacked any reference to the names of the attestors or scribe or details about when and where Ex.A-1 was prepared. The Plaintiff also failed to provide any explanation for not mentioning Ex.B-1 and Ex.B-2 in his plaint or for not sending a copy of

Ex.A-1 to the 1st Defendant despite being requested to do so.

37.The 1st Defendant denied executing any document in favour of the

Plaintiff. In such circumstances, the Plaintiff was obligated to examine 14 witnesses who had either seen the 1st Defendant sign the document or the person who had scribed it. However, no such witnesses were produced. As a result, the Plaintiff‟s assertion that Ex.A-1 is valid and binding cannot be sustained.

38.The 5th Defendant was examined as DW-1, and the 2nd Defendant was examined as DW-2. Both filed chief affidavits denying the Plaintiff‟s case and appeared in the witness box. However, the Plaintiff chose not to cross-examine them. Consequently, the oral statements of DW-1 and DW- 2, which supported their written statements and denied the Plaintiff‟s claims, remained unchallenged. Since the Plaintiff failed to produce convincing evidence to establish that Ex.A-1 is valid, that he was ready and willing to perform his obligations, or that the 1st Defendant failed to fulfill his obligations, the Plaintiff‟s case lacks equity and does not warrant relief.

Findings on Issues:

Issue No.1: The agreement of sale dated 10.11.2015 (Ex.A-1) is held to be invalid and not binding on the Defendants.

Issue No.2: As Ex.A-1 is not valid, the Plaintiff is not entitled to specific performance directing the Defendants to execute a regular sale deed or to a refund of the advance amount. Furthermore, the Plaintiff failed to produce any evidence proving the payment of Rs.18,60,000/- to the 1st

Defendant or the source of such funds. Therefore, the alternative relief cannot be granted.

Additional Issue: The Plaintiff did not plead that he was ready and

willing to perform his obligations. While he claimed that Ex.A-1 stipulated 15 his obligation to pay the balance amount before the 1st Defendant executed the sale deed, he failed to demonstrate compliance with this obligation.

39.The rulings cited by the Defendants are applicable to the present facts of the case.

40.In light of the above discussion, issue Nos.1, 2, and the additional issue are answered against the Plaintiff.

Issue No.3 : To what relief?

41.Issue Nos. 1, 2, and the additional issue are answered that the agreement of sale has not been proven in terms of its validity and binding nature. Consequently, the Plaintiff is not entitled to the relief of specific performance directing the Defendants to execute a regular sale deed, nor to the alternative relief of a refund of the amount. Therefore, the suit is liable to be dismissed.

In the result, the suit is hereby dismissed with costs.

Since main suit is dismissed, I.A.No.3067 of 2017 is hereby closed.

Partly dictated to Stenographer Gr.I and Gr.II, transcribed by them, corrected, signed on the draft Judgment and pronounced by me in open Court on this the 22 nd day of January, 2025 and digitally signed.

Digitally signed by

C PURUSHOTTAM

KUMAR

Date: 2025.01.22

19:16:46 +0530

PRINCIPAL DISTRICT JUDGE,

WEST GODAVARI, ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PLAINTIFF

P.W.1 Chilakalapudi Gowtham Kumar 16

WITNESSES EXAMINED FOR DEFENDANTS

D.W.1 Mallampalli Leela Rani

D.W.2 Maganti Ravi Kiran

EXHIBITS MARKED FOR PLAINTIFF

Ex.A.1 10.11.2015 Agreement of sale executed by 1st Defendant in favour of Plaintiff Ex.A.2 22.03.2017 Registered Sale deed executed by 1st Defendant in favour of 2nd Defendant Ex.A.3 24.07.2021 Office copy of legal notice issued by Plaintiff to Defendant Ex.A.4 -- Postal acknowledgment of 1st defendant

Ex.A.5 -- Postal acknowledgment of 2nd defendant

Ex.A.6 01.08.2017 Reply legal notice issued by 1st Defendant to Plaintiff Ex.A.7 12.08.2017 Reply notice issued by 2nd Defendant

EXHIBITS MARKED FOR DEFENDANT

(marked in the cross examination of PW-1)

Ex.B.1 06.09.2017 Legal notice got issued by Plaintiff to 1st Defendant Ex.B.2 30.09.2017 Reply notice got issued by 1st Defendant

Digitally signed by C

PURUSHOTTAM

KUMAR

Date: 2025.01.22

19:17:04 +0530 P.D.J.,

W.G., ELURU.

Copy to

1. Sri E. Srinivasa Babu, Advocate for Plaintiff.

2. Sri M.Lakshman Kumar, Advocate for 2nd Defendant

3. Sri B.Stiaramaiah, Advocate for Defendant Nos.3 to 5.