D.Madhavi Krishna

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: NELLORE

Thursday, this the 25th day of April, 2013

Present: SMT. D.MADHAVI KRISHNA, M.A.,M.L.,

Principal Junior Civil Judge , Nellore.

O.S.No.463/2010

Nasina Veera swamy ... Plaintiff

Vs.

1. Kaku Rajesh

2. Kaku Raghuramaiah

3. Kaku Prasad

4. Kaku subbaiah alias Subhashan

... Defendants

This suit coming up for final hearing before me on 18-04- 2013 in the presence of Sri D.Venkata Ramaiah, Advocate for plaintiff and of Sri S.Yesudas, advocate for defendants, having stood over for consideration till this day, this Court delivered the following::

J U D G M E N T

The plaintiff filed this suit for Specific Performance of Agreement of sale dt.30.7.1998 and for costs.

2. The brief facts of the plaint are that:-

Defendants are sons of Ramanaiah and joint owners of plaint schedule property acquired from their father. They offered to sell the said property to the plaintiff and Plaintiff agreed to purchase the same for total consideration of Rs.23100/- and all the defendants executed agreement of sale dt.30.7.1998 in favour of the plaintiff and received said amount and delivered the possession of said property to the plaintiff and since then the plaintiff has been in possession of the same. The plaintiff has been paying cist to the government. As per terms of agreement the defendants agreed to execute register sale deed whenever the plaintiff requires. Plaintiff further submits that the defendants and their men highhandedly and //2// illegally attacked the son of plaintiff namely Suresh when he obstructed them they committed theft of Kallu from plaintiff's garden and a sessions case is pending before Senior Civil Judge court under Sec.307 I.P.C. The defendants pressurize the plaintiff and his son for compromise but he refused. The defendants highhandedly giving out in the village as they would occupy the plaint schedule property. While so 2nd defendant created a false document in the name of his son Kishore allegedly executed by Kaku

Santhamma. Said Santhamma is not entitled to execute any document and she has no right or title or possession over said property. Hence said document is not valid under Law and said Kishore will not get any right or title over the same.

3. It is further submitted that Kaku Penchalaiah has 4 sons and one daughter. They are Ramanaiah, Krishnaiah, Subbaiah, and Dasaiah and

Penchalamma. After death of Penchalaiah his sons were constituted as

Hindu Joint Family and they have purchased landed property in an extent of

Ac.1-56 cents from Jallipeta Gnana Prakasam under registered sale deed dt.8.6.1962 and got registered in the name of Kaku Ramanaiah who is elder in the house and who was looking after the affairs of their family.

Subsequently they have partitioned said property among 4 brothers and each of them have got A.0-39 cents and they have been in separate possession. Kaku Ramanaiah died intestate leaving behind his wife and sons. In view of attitude of defendants the plaintiff got issued legal notice dt.15.5.10 to them requiring to execute registered sale deed in his favour.

The defendants received the same and send reply dt.25.5.10 with false and unsustainable averments. It is bounded duty of the defendants to execute registered sale deed in favour of the plaintiff under Law. Hence the suit.

//3//

4. The 3rd defendant filed his written statement which was adopted by defendants1,2 and 4. The brief facts of the written statement are that the defendant never executed alleged sale agreement dt.30.7.98 and no consideration was passed i.e. Rs.23,100-00 to this defendant and they never delivered the possession of the property to the plaintiff. The 1st and 4th defendants are thumb impressionists and they are not signatories. Hence the alleged sale agreement is fabricated document. Further there are no boundaries mentioned in the agreement but the legal notice issued by the plaintiff consists boundaries. Hence the said boundaries are false which clearly reveals that the sale agreement is fabricated document. Further as on the date of agreement of sale the original title owner is the father of the defendants Kaku Ramanaiah is alive but the plaintiffs has not obtained the agreement from him. It is also not mentioned who scribed the said agreement hence it is fabricated document. The defendants further submits that the 2nd defendant's son Kaku Kishore filed a suit in O.S.402/10 before

III A.J.C.J. Nellore and obtained injunction order in I.A.521/10 and plaintiff is contesting the said suit but it was suppressed in the plaint. Hence the suit is not maintainable as the defendants have not executed alleged sale agreement and prays the court to dismiss the suit with costs.

5. Basing on the pleadings the following issues are framed for trial:-

1. Whether the plaintiff is entitled for execution of registered

Sale deed by the defendants as prayed for ?

2. To what relief ?

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6. During the course of trial plaintiff examined as PW-1 and got examined Exs.A1 to 15 documents. Chief affidavit of PW2 was eschewed as the witness died. Plaintiff got examined one witness as PW.3. On the other hand 3rd defendant examined as DW-1 and got examined DW.2 and got marked Exs.B.1 to 4. Evidence closed accordingly.

7.Heard both sides. The Counsel for plaintiff filed written arguments.

8. ISSUE No.1:- Plaintiff filed this suit for specific performance of agreement of sale dt.30.7.1998 which was denied by the defendants. Therefore the initial burden lies on the plaintiff to prove that the said agreement was executed by the defendants and the defendants has right over the said property to sell. To prove the same plaintiff examined as PW.1 and deposed in support of his case in his chief examination and he got marked Exs.A.1 to 15 documents.

Ex.A.1 is agreement of sale dt.30.7.1998 executed by the defendants in favour of the plaintiff regarding the suit schedule property. Ex.A-2 is office copy of legal notice dt.15.5.2010 got issued by the plaintiff to the defendant along with postal receipt. ExA-3 is reply notice issued by the defendants dt.25.5.2010. Ex.A.4 is copy of legal notice dt.15.5.10 issued by the plaintiff to Tahsildar, Venkatachalam Mandal asking to him not to issue pattadar pass books or title deed to the defendants as the property exclusively belongs to him. Ex.A.5 and

A.6 are Certified copies of cist receipts dt.23.6.2008 and 24.7.2009 paid by the plaintiff for suit schedule property and other properties.

//5//

Ex.A.7 is C.C. Of No.3 adangal for fasali 1416 dt.23.6.2008 showing that the plaintiff is in possession and enjoyment of suit schedule property. Ex.A-8 is CC of No.3 adangal for fasli 1419. Ex.A.9 is original cist receipt dt.28.4.2011 under which plaintiff paid cist for his suit schedule property for fasli 1420. E.A.10 & A11 are marked in the evidence of PW.2. Ex.A.10 is cist receipt dt.27-4-2012. Ex.A.11 is

No.3 adangal for fasli 1422 regarding suit schedule property. Ex.A.12 & 13 are original death certificates of Veluru Venkataiah and

K.Bujjaiah naidu respectively. Ex.A.14 is copy of registered Sale deed dt.28.10.2004 executed by Velpula Ratnamma and 2 others in favour of K.Srihari regarding the land in survey No.62/1-1A, 1B and 1C.

Ex.A.15 is Certified copy of judgment in SC.231/2009 on the file of

Asst. Sessions Judge, Nellore.

9. During cross examination PW.1 admitted that the suit schedule property originally belongs to father of the defendants namely Ramanaiah. According to the plaintiff after death Ramanaiah the defendants executed agreement of sale on 30.7.1998. Whereas the case of the defendants is that as on the date of execution of

Ex.A.1 the father of the defendants is alive. But it is denied by the plaintiff. Hence, the defendants got marked the death certificate of

K.Ramanaiah as Ex.B.4. Ex.B.4 clearly shows that Kaku Ramanaiah died on 15.3.2000. Admittedly, Ex.A1 was executed on 30.7.1998.

Therefore it is proved that as on the date of execution of Ex.A.1 the father of the defendants who is original owner of suit schedule property is alive.

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10. Plaintiff also pleaded ignorance regarding non mentioning of boundaries of schedule property in Ex.A.1. He also do not know about the boundaries of suit schedule property as on the date of execution of Ex.A.1. According to plaintiff one Venkataiah scribed Ex.A.1 but admittedly the said Venkataiah has not signed on

Ex.A,1. Plaintiff also not enquired how the father of defendants got the schedule property. The plaintiff also has not obtained the signatures of mother of the defendants and their sister. Admittedly wife of Ramanaiah also having right over the properties of deceased

Ramanaiah, but plaintiff failed to obtain the signatures from her.

Hence, the plaintiff cannot be said to be bonafide purchaser.

11.Though the plaintiff contesting O.S.402/2010 filed by

Kaku Kishore son of second defendant he pleaded ignorance regarding said suit before this court. Though there are 60 toddy trees situated in the schedule land in Ex.A.1 there was no reference about the trees. He further admitted that the survey numbers mentioned in

Exs.A.5 to 8 are not tallied with the survey no. of plaint schedule and further admitted that Ex.A.9 and 10 are obtained subsequent to filing of the suit. Hence, Ex.A.9 and 10 cannot be taken into consideration. In Ex.A.3 reply notice the defendants asked the plaintiff to send for copy of Ex.A.1 alleging that they did not execute the same. But the plaintiff failed to do so. Therefore the adverse inference can be drawn against the plaintiff. Hence, the contention of defendants that Ex.A.1 may not be executed by them appears to be correct .

//7//

12.Plaintiff filed Exs.A.12 and 13 documents which are death certificates of both attestors of Ex.A.1. Among them though the plaintiff filed chief affidavit of one attestor V. Venkataiah before his cross examination witness died. Therefore, the evidence of attestor is not available before the court. Plaintiff got marked Ex.A.14 to show that his land was shown as one of the boundary in the schedule given in Ex.A.14. But in Ex.A.1 either the vendor or purchasers of Ex.A.14 were not referred as boundary owners. Further the survey no. of the land covered in Ex.A.14 and A.1 are different.

Admittedly the plaintiff own other land apart from suit schedule property. Therefore, it is suggested to him that Ex.A.14 is relating to his other land but not suit schedule land. Ex.A.15 is CC of Judgment in SC.231/2009. Said case was registered in crime No.95/08. Basing on the report of N.Suresh against 7 accused and in the said case

Kaku Subbaiah, D.Venkaeswarlu , Kistam Ravi and Kaku Babu were convicted for offence U/s.307 IPC. However PW.1 admitted the said conviction was set aside in appeal 201/2010 on 21.2.2012. Further the scene of offence in said criminal case has been taken place on the road but not in garden or in front of temple. Hence Ex.A.15 has no relevance to the suit.

13. Plaintiff also claims that since the date of execution of

Ex.A.1 he has been in possession and enjoyment of the schedule property. To prove the same he has filed cist receipts and no.3 adangals, but admittedly the survey no. of the schedule property is not tallied with Ex.A.1. To dis prove the case of plaintiff regarding his //8// possession over schedule property the defendants got marked

Exs.B.1 to 3 documents. Ex.B.1 is CC of settlement deed dt.16.10.2009 executed by wife of Ramanaiah in favour of Kaku

Kishore regarding the land situated in 62/1-2, 62/1-2C, 62/1-2B, 62/1- 2E, 62/1-2F , 62/1-2G, 62/1-2H, 62/1-2I, total extent 0-83 cents.

Ex.B.2 is CC of tax receipt dt.21.4.2010 paid by Kaku kishore son of

Raghuramaiah cist for said land for faslis 1414, 1415 and 1416.

Ex.B.3 is CC of No.3 adangal for fasli 1418 which shows that Kaku

Kishore is possessor of the land covered in Ex.B.1 and pattadar is

B.Sankaraiah Naidu. Therefore Ex.B.1 to 3 shows that the wife of

Ramanaiah i.e. Santhamma executed Registered Settlement deed in favour of her grand son Kaku Kishore.

14. Coming to the evidence of PW.3 who is said to be V.R.O.

of Anikepalli village deposed that he issued Ex.A.8 to A.10 documents in favour of the plaintiff. Admittedly Ex.A.9 and 10 obtained after filing the suit hence they need not be taken into consideration. He admitted that regarding same land his predecessors issued cist receipts to Kaku Kishore for same sub divisions. He did not deny the suggestion that Kaku Kishore had been in possession and enjoyment of schedule land. Therefore, it is clear that regarding same land cist receipts and adangals issued to the plaintiff and also Kaku Kishore. Therefore, the said documents are not reliable and basing on the same plaintiff is not entitled for any relief. According to PW.3, Ex.A.5 and A.7 were issued by his predecessor who examined as DW.2. Whereas DW.2 deposed that he //9// did not issued Ex.A.7. Therefore, the contents of Ex.A7 are not proved. Admittedly in Ex.A.1 no boundaries were mentioned. In

Ex.A.5 Survey No.62/1&2 were subdivided. Plaintiff paid cist for said land for fasli 1408 to 1417. Whereas under Ex.B.2 Kaku Kisore also paid cist for same land in the same sub-division for fasli 1414, 1415 and 1416 therefore the revenue authorities collected cist from both parties regarding same land. So also in Ex.A.7 & A.8 plaintiff shown as possessor for the land for faslis 1416 and 1419 whereas Ex.B.3 shows that Kaku Kishore is possessor of same land for faslis 1418.

DW.2 also deposed that he did not issued Ex.A.7 but which bears the signature of Dw.2 D.Sudakar Reddy. It seems that, the documents filed by the plaintiff failed to create confidence in the mind the of the

Court regarding their validity. Hence the plaintiff also failed to establish his possession over suit schedule property.

15. Coming to the evidence of defendants, 3rd defendant examined as Dw.1. It is the contention of the defendants that Ex.A.1 is not executed by them and in fact as on the date of execution of Ex.A.1 their father

Ramanaiah is alive hence they have no right and also possession over said land and they are nothing to do with the said land. In his evidence Ex.B.1 to 4 were marked. It is the contention of defendants that the 1st and 4th defendants used to put their signatures but in Ex.A.1 thumb impressions appears against their names and the schedule property was purchased by

Ramanaiah with the Stridhana of his wife hence after death of Ramanaiah his wife settled the property in favour of Kaku Kishore who is son of 2nd defendant under Ex.B.1. Hence, said Kishore is in enjoyment of the property //10// but not the plaintiff.

16. In his cross examination it is elicited that his grand father is

Penchalaiah who has 4 sons namely Ramanaiah, Krishnaiah, Subbaiah and

Dasaiah. And among them Kaku Ramanaiah is elder. It is the case of the plaintiff that said Ramanaiah used to take care of the property and Kaku

Penchalaiah who died in the year 1959 and later in the year 1962 Kaku

Ramanaiah purchased the schedule property with the joint family funds but got registered in his name as he is the eldest son. But it was denied by

DW.1. Though the plaintiff contended that the father of defendants purchased the schedule property under Document No.484/1962 with the joint family funds the plaintiff failed to obtain its certified copies and to file

before the Court. Therefore, this contention is not established. Dw.1 also

denied the suggestion that the said property was partitioned among 4 sons of Penchalaiah and the father of defendants got 39 cents towards his share.

To prove this fact also there is no documentary evidence adduced by the plaintiff. The entire case of the plaintiff is denied by the defendant in his cross examination. Though DW.1 got acquaintance with the attestors of

Ex.A.1 it cannot be presumed that in their presence the defendants executed Ex.A.1. Further in Ex.A.2 legal notice it is not mentioned that in the presence of Bujjaiah and Venkataiah the defendants executed Ex.A.1 and received consideration amount from the plaintiff. The other cross examination of PW.1 is regarding the case SC.231/2009. Therefore, the plaintiff fails to elicit that the suit schedule property devolved upon the share of Ramanaiah in their family partition. It is the contention of defendants that plaintiff is Gowda by case and he is doing his caste profession and he took their toddy trees for lease. Plaintiff also admitted in his cross examination that he is toddy tapper. The defendants did not claim //11// possession over suit schedule property hence they have not filed any documents before the court showing their possession over schedule land after 1998. Though there are few admissions in the evidence of Dw.1 it is well settled Law that the plaintiff should not depend upon the weaknesses of defendants case.

17. The defendants got examined then V.R.O, Anikepalli village as Dw.2 who deposed that he did not issued Ex.A.7 NO.3 adangal and the signature appears therein is not belongs to him. However, Ex.A.5 was issued by him but Ex.A.5 lost its validity in view of Ex.B.2. He also do not know when the survey number 62/1 was sub divided, but he categorically denied that plaintiff shown Ex.A.1 when he paid cist for schedule property.

Therefore, Ex.A.7 contents not proved before the Court.

18. From the above discussion, it seems that plaintiff failed to offer explanation regarding non mentioning of boundaries in Ex.A.1 but, he mentioned the boundaries in Ex.A.2 notice. Admittedly there is no proof

before the court as E.x.A.1 was scribed by one Venkataiah. Admittedly,

though there are 60 toddy trees situated in the schedule land they were not referred in Ex.A.1. Though in Ex.A.1 survey No. mentioned as 62/1,2 but in the documents of the plaintiff the survey number. was subdivided. It is silent in Ex.A.2 as the defendants executed Ex.A.1 in the presence of Venkataiah and Bujjaiah Naidu alleged attestors. Though Ex.A.14 was filed to prove that the defendants 1 and 4 can put their signatures, Ex.A.14 is certified extract copy hence it did not contain even the copies of signatures of D1 and D4.

The survey No.of the plaintiff land also not tallied with Ex.A.1 and A.14.

Ex.B.1 to B.3 shows that Kaku Kishore is owner and possessor of suit schedule land and he filed OS.402/2010 against plaintiff for permanent injunction which is pending.

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19.The defendants since from the beginning disputing the genuineness of Ex.A.1 document. In Ex.A.1 the father of the defendants referred as died but Ex.B.4 shows that the father of the defendant died after 2 years of execution of Ex.A.1. When this court sent summons to District

Registrar, Nellore to bring Stamp vendor register to know whether the stamp paper of Ex.A.1 was sold by one R.Govardhan Reddy, Stamp vendor,

The District Registrar, Nellore sent a letter stating that he verified the

Stamp vendors sales register pertaining to the year 1998 but said

R.Govardhan Reddy who alleged to be sold the stamp paper of Ex.A.1 not submitted the register in the office. Further, the alleged scribe of Ex.A.1 has not signed on it. Therefore, Ex.A.1 contents not established before the court.

Both attestors and scribe were reported dead. Therefore, plaintiff fails to prove by other means that the defendants executed Ex.A.1 by receiving consideration amount. Further, as on the date of Execution of Ex.A.1 the father of the defendants who is original owner is alive. Hence, the defendants has no right over the schedule property,and in fact plaintiff has to obtain agreement from the father of the defendants. Even so if

Ramanaiah died the plaintiff shall also obtain the signatures of wife of

Ramanaiah and his daughter who are also having right in the property of

Ramanaiah. The evidence of Dw.2 shows that plaintiff did not shown Ex.A.1 while paying cist for the schedule land. The plaintiff has not filed any document to know whether the schedule property is joint family property or self acquired property of Ramanaiah. Even the plaintiff did not take any steps to get examine the family members of Ramanaiah to prove the execution of Ex.A.1 by the defendants.

20. The counsel for plaintiff relies upon the decision in G.Sivaji Raju and another Vs. V.Narasiha Raju reported in 2005 (6 ) ALT 827. In the said //13// decision the limitation to file suit for specific performance of sale is when there is no time fixed the limitation starts when the plaintiff has noticed regarding refusal of performance by the executant is 3 years. But in the present case defendants did not admitted the execution of sale agreement.

Hence the decision has no application to the present case on hand. The counsel for plaintiff contended that in the reply notice issued by the defendants they did not take forgery plea. But at para No.6 reply notice the defendants clearly mentioned that the agreement is void and not executable under law and at para No.7 it is mentioned that they never executed alleged agreement. However in the notice there was no specific use of word forgery. But is has no effect, Therefore,all the contentions of the plaintiff counsel with due respect denied. Hence,it can be said that the plaintiff fails to establish that Ex.A.1 was executed by the defendants and the defendants have any right over the property, there by the execution of

Ex.A.1 is not proved. Hence he is not entitled for relief of specific performance. Accordingly the issue is answered.

21. ISSUE No.2:- In view of my finding in Issue No.1 this court hold that plaintiff failed to prove the execution of agreement of sale dt.30.7.1998.

Hence, he is not entitled for any relief. Accordingly the suit is dismissed.

In the result the suit is DISMISSED. In the circumstances both parties shall bear their own costs.

Dictated to the Personal Assistant, transcribed by her corrected

and pronounced by me in the open Court on this the 25th day of April, 2013.

Principal Junior Civil Judge, Nellore

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: PW.1 Nasina Veeraswamy

PW-2 V.Venkataiah (died) eschewed.

P.W.3: G.V.Ramana Rao, V.R.O.,Anikepalli.

FOR DEFENDANT:

DW-1 Kaku Prasad

Dw-2 .D.Sudhakar Reddy

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A-1. Agreement of sale Dt.30.7.1998.

Ex.A-2. Office copy of legal notice Dt.15.5.2010.

Ex.A-3. Reply notice Dt.20.05.2010.

Ex.A-4. Office copy of legal notice dt.15.5.2010.

Ex.A-5. C.C. Of cist receipt Dt.23.6.2008.

Ex.A-6. C.C. Of cist receipt Dt.24.7.2009.

Ex.A-7. C.C. Of NO.3 adangal for the fasali 1416.

Ex.A-8. C.C. Of No.3 adangal for fasali 1419.

Ex.A-9. Cist receipt Dt.28.4.2011.

Ex.A-10. Cist receipt Dt.27.4.2012.

Ex.A11. No.3 Adangal for fasli 1422.

Ex.A12. Death Certificate of V.Venkataiah.

Ex.A13. Death Certificate of K.Bujjaiah Naidu.

Ex.A14. C.C. Of regd. Sale deed Dt.28.10.2004.

Ex.A15. C.C. Of Judgment in Sessions Case No.231/2009 on the file of I Asst. Sessions Judge's Court,Nellore.

FOR DEFENDANT:

Ex.B1: C.C. Of settlement Deed dt.16.10.2009. Ex.B2: C.C. Of Cist Receipt. Ex.B3: C.C. Of Adangal for fasli 1418. Ex.B4: C.C. Of Death certificate of K.Ramanaiah.

Principal Junior Civil Judge,

Nellore.

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: NELLORE

Tuesday, this the 23rd day of April, 2013

Present: SMT. D.MADHAVI KRISHNA, M.A.,M.L.,

Principal Junior Civil Judge , Nellore.

O.S.No.211/2009

Javari Kapisha Saibaba Singh ... Plaintiff

Vs.

1. Javari Kapisha Vishnu Singh.

2. Javari Kapisha Nirmala bai.

3. Javari Pothiwal Mohana bai. ... Defendants

This suit coming up for final hearing before me on 08-04- 2013 in the presence of Sri P. Raghu Rami Reddy, Advocate for plaintiff and of Sri K. M.Krishna and B.Srinivasan, advocates for defendant.1 and 2 and Defendant.3 was set exparte, having stood over for consideration till this day, this Court delivered the following::

J U D G M E N T

The plaintiff filed this suit against the defendants for Partition and separate possession of 1/8th share out of plaint schedule property and for Mesne profits from the date of the suit till date of delivery of possession of his share to the plaintiff and for costs.

2.The brief facts of the plaint are that:- 1st defendant is son of late Javari Kapisha nagoji Singh. 2nd defendant is wife of 1st defendant. 3rd defendant is wife of Late

J.P.Bhagavath singh. Originally the suit schedule property was purchased by the father of the plaintiff Javari kapisha Nagoji singh on 10.5.1938 under a registered sale deed. He died intestate in the year 1962 leaving behind him his wife Lakshmi Bai, his daughters Ramana bai, Mohana bai(3rd defendant),

Prameela bai, Gouri bai and his sons J.K.Dhan Singh, J.K.Saibaba singh(Plaintiff) and 1st defendant who succeeded the estate of deceased.

Said J.K.Dhan singh had bequeathed his undivided share out of plaint schedule property to the second defendant by executing a registered will dt.14.3.1994. He died on 14.3.1994. Thus the 2nd defendant became the absolute owner of 1/8th undivided share out of plaint schedule property.

3. The mother of the plaintiff J.K.Lakshmi Bai, his sisters Ramana bai,

Prameela bai and Gouri bai have sold their equal undivided shares to the 1st defendant under a registered sale deed dt.19.8.1996 for consideration of ₹.6500/-. Thus the 1st defendant became absolute owner of 5 undivided shares out of 8 shares. The third defendant is having 1/8th share in the plaint schedule property on par with the plaintiff. The schedule property is a shop room situated in busy locality and if is let out would fetch rs.4,000/- towards monthly rents out of which amount the plaintiff is entitled for 1/8th share from the date of the suit. The plaintiff is in joint possession of the same along with the defendants. Though the plaintiff demanded the defendants to effect partition they adopting delayed methods.

4. Plaintiff preferred a similar suit in O.S.73/2002 before this court for the same relief but the said suit was dismissed for default on 30.8.2006.

Hence the suit for preliminary decree.

5. The 1st defendant filed his written statement which was adopted by 2nd defendant. They admitted that the suit schedule property belongs to

Javari kapisha Nagoji singh who purchased on 10.5.1938. it is also admitted that the brother of D.1 J.K.Dhan singh had bequeathed his undivided share to D.2 through will dt.14.3.1994. Thus the 2nd defendant became absolute owner of 1/8th undivided share out of plaint schedule property. It also admitted that the mother of the plaintiff J.K.Lakshmi Bai, his sisters Ramana bai, Prameela bai and Gouri bai have sold their equal undivided shares to the 1st defendant under a registered sale deed dt.19.8.1996 for consideration of .6500/-. Thus the 1st defendant became₹ absolute owner of 5 undivided shares out of 8 shares. But denied that 3rd defendant has 1/8th undivided share in the suit schedule property. N oral request by D-1, D-3 agreed to execute a registered document in his favour regarding her share.

6. The extent of schedule shop room is only 1 ankanam and for last 3 years the plaintiff with illegal intention had been making efforts to close the shop room. Even the defendants try to make any alterations and to lent out the plaintiff objected and obstructed third parties stating that some litigation is pending before the court. He also pasted printed papers on the shop. Therefore no body is willing to take the shop. Which is vacant. At any moment the plaintiff never demanded the defendants for partition. Even the plaintiff promised to this 1st defendant to execute a document regarding his share but for the reasons known to him he did not execute. Subsequently the 1st defendant filed a suit in O.S.32/2000 against the wife of this plaintiff and others before Hon'ble Principal District Court, Nellore for partition of property which this plaintiff and his wife have obtained illegal document from the mother of this defendant on 9.12.2003. To the counter blast of said suit the plaintiff filed O.S.73/2002 which was dismissed for default on 30.8.2006.

7. The plaintiff has full knowledge about the transfer of property but kept quiet all these days. Later on 11.2.2009 this defendant transferred the property to his wife I.e.2nd defendant by registered document no.1289/2009. Only to harass the defendants the present suit was filed. Due to illegal acts of the plaintiff the defendants left to Ananthapur 4 years back living as daily wage labour. Said fact also known to plaintiff. To harass the defendants the plaintiff filed E.p in O.S.32/2000 and got attach the schedule property. Since the plaintiff and 3rd defendant already given up their shares the plaintiff estopped from claiming share. The schedule property also not divisible by metes and bounds equally and prays the court to dismiss the suit with exemplary costs.

8. 3rd defendant was set exparte.

9. Basing on the pleadings the following issues are framed for trial:-

1. Whether the plaintiff is entitled for grant of Preliminary

Decree as prayed for?

2. To what relief ?

10. During the course of trial plaintiff examined as PW-1 and got marked Exs.A-1 to A-3 documents. On the other hand 1stdefendant examined as DW-1, 3rd defendant examined as Dw.2. No documents are marked for him. Evidence closed accordingly.

11.Heard both sides.

12. ISSUE No.1:-

The counsel for defendants contended that earlier the plaintiff filed similar suit vide O.S.73/2002 for the same relief but it was dismissed for default on 30.8.2006. As per Order.IX Rule.9 fresh suit is barred therefore this suit is not maintainable. But O.IX R.9 clearly says that if a suit was dismissed for default under Rule.8,then fresh suit is barred as per Rule.9.

Order.IX rule.8 says that 'where the defendant appears and the plaintiff does not appear when the suit is called for hearing the court shall dismiss the suit unless...'. But in the present case the defendants failed to prove that while dismissal of O.S.73/2002 the defendants appeared but the plaintiff not appeared and at that stage the suit was dismissed. No documentary proof was filed before the court regarding the dismissal order passed in O.S.73/2002. Therefore the contention of defendants is not established hence rejected.

13. Coming to facts of the suit Originally the suit schedule property belongs to Javari Kapisha Nagoji Singh. He purchased the same under registered sale deed dt.10.5.1938 which is marked as Ex.A.1. Said Nagoji singh died intestate in the year 1962. Said Nagoji singh left behind his wife

Lakshmi Bai, his 4 daughters Ramana bai, Mohana bai(3rd defendant),

Prameela bai, Gouri bai and his 3 sons J.K.Dhan Singh, J.K.Saibaba singh(Plaintiff) and 1st defendant herein. Hence plaintiff and 1stdefendant are own brothers. And 3rd defendant is their sister. There is no dispute to this extent.

14. It is also not disputed fact that the estate of Javari Kapisha nagoji

Singh that is the suit schedule property to be divided in to equal shares among his wife, 3 sons and 4 daughters. And each one get 1/8th share equally. According to the plaintiff who examined as Pw.1 one son of deceased Nagoji singh namely Dhan singh bequeathed his share to 2nd defendant who is wife of D.1 under will dt.14.3.1994 which is marked as

Ex.A.2. Hence it is undisputed fact that the second defendant became absolute owner of 1/8th share.

15. It is the case of both plaintiff and defendants that the mother of the plaintiff J.K.Lakshmi Bai, his sisters Ramana bai, Prameela bai and Gouri bai have sold their equal undivided shares to the 1st defendant under a registered sale deed dt.19.8.1996 that is marked as Ex.A.3 for consideration of .6500/-. Thus the 1st defendant became absolute owner of 5 undivided₹ shares and 2nd defendant got one share out of 8 shares. So it is clear that 1st defendant has got 5 shares and 2nd defendant has got one share.

Hence the defendants admitted Ex.A.1 to A.3 documents. Hence the contents of Ex.A.1 to 3 need not be proved by the plaintiff.

16. During cross examination, Dw.1 admitted that out of 8 shares 6 shares allotted to him and his wife and remaining 2 shares will be allotted to the plaintiff and 3rd defendant. He contended that 3rd defendant also gave her share to him but admittedly 3rd defendant has not executed any document in his favour regarding her 1/8th share. But 3rd defendant deposed as Dw.2 stated that she will execute registered document infavour of 1st defendant. Similarly though Dw.1 stated that the plaintiff also promissed to him that he will gave his share to him admittedly there is no documentary proof to that effect. Hence mere oral evidence of Dw.1 that the plaintiff made promise to him that he will gave his share to him is not taken in to consideration. His another contention is that the extent of suit schedule shop room is only one ankanam which is not divisible. In his cross examination he deposed that the width of shop towards road is 6 feet and length is 12 feet. Admittedly the shop is situated beside main road at

Santhapet. The point whether the schedule property is divisible or not need not be considered at this stage but will be decide while disposing Final

Decree petition. Finally Dw.1 admitted that plaintiff is entitled to get 1/8th share in the schedule property. The contention of Dw.1 that this suit is counter blast to O.S.32/2000 has no merits hence rejected. Though in his written statement he mentioned that plaintiff filed execution petition in

O.S.32/2000 and got attached the suit schedule property the defendants

have not filed single document before the court relating to O.S.32/2000 and execution petition filed there in. hence there is no evidence the suit schedule property has been attached in E.P. Filed in O.S.32/2000.

17. 3rd defendant though set exparte, examined as Dw.2. She is one of the daughter of deceased Nagoji singh and sister of the plaintiff and 1st defendant. She deposed in support of case of Dw.1 and further deposed that she intend to give her 1/8th share to 1st defendant. In her cross examination she categorically admitted that she did not execute any document infavour of 1st defendant regarding her share. She also admitted that the plaintiff also has got right over suit schedule property. Though 3rd defendant has not executed any document infavour of 1st defendant she came to court and depose on oath as she will execute document in his favour. Hence the share of 3rd defendant is also given to 1st defendant.

Therefore it is established that the plaintiff is entitled to get one share, 1st defendant is entitled to get 6 shares including the share of 3rd defendant and 2nd defendant is entitled for one share equally.

18. Mesne Profits: Plaintiff also prays the court to award mesne profits. According to him the schedule shop room is situated in busy locality and fetching monthly rent at Rs.4000/- hence he is entitled for 1/8th in the rents from the date of filing of the suit. Whereas the defendants contended that for last 3 years schedule shop room is kept vacant because the plaintiff obstructing the people to take on lease representing that the property is in litigation. During cross examination Pw.1 categorically admitted that he pasted a paper on schedule shop room as it is in litigation. Plaintiff also admitted that the schedule shop room is vacant for last 2 years and it is old construction. Plaintiff also failed to prove that the schedule shop fetches monthly rent at Rs.4000/-. Except oral evidence of the plaintiff there is no positive evidence adduced by him about income derived from suit schedule shop room. Hence he is not entitled for mesne profits.

19. ISSUE No.2:-

In view of my finding in Issue No.1 this court hold that the plaintiff is entitled to get 1(one) share, 1st defendant is entitled to get six(6) shares including the share of 3rd defendant and 2nd defendant is entitled for 1(one) share equally. But the plaintiff is not entitled for any mesne profits. Accordingly the suit is decreed.

In the result, the suit schedule property shall be divided in to 8 equal shares @1/8th share with metes and bounds and allot one such share to the plaintiff, and six(6) shares including the share of 3rd defendant to the 1st defendant and 1(one) share to the 2nd defendant. Regarding the relief of Mesne profits the suit is dismissed. In the circumstances both parties shall bear their own costs. Accordingly preliminary decree is passed.

Dictated to the Personal Assistant, transcribed by her corrected

and pronounced by me in the open Court on this the 23rd day of April, 2013.

Principal Junior Civil Judge, Nellore

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: PW.1. Javari Kapisha Saibaba Singh.

FOR DEFENDANT:

DW-1. Javari Kapisha Vishnu Singh.

DW-2. Javari Pothiwal Mohana bai.

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1. C.C. Of Sale deed dt.10.5.1983.

Ex.A2. C.C. Of Will dt.14.3.1994.

Ex.A3. C.C. Of Sale deed dt.19.8.1996.

FOR DEFENDANTS: Nil

Principal Junior Civil Judge,

Nellore.

1

IN THE COURT OF THE RENT CONTROLLER -CUM-PRINCIPAL JUNIOR CIVIL

JUDGE: NELLORE

Friday, the 26th day of April, 2013

Present: SMT. D.MADHAVI KRISHNA, M.A.,M.L., Rent Controller -cum-

Principal Junior Civil Judge , Nellore.

R.C.C.No.47/2007

Gundlapalli Mohan Rao

... Petitioner

Vs.

1. Addepalli SubbaRao.

2. Sk.Masthan Saheb.

3. Sk.Iliyaz ... Respondents

This Petition coming up for final hearing before me on 22-04- 2013 in the presence of Sri. N. Srinivasulu reddy, Advocate for petitioner and of Sri P.Venugopal, Advocate for respondent no.1 and R.2 and 3 were exparte, having stood over for consideration till this day, this Court delivered the following::

O R D E R

The petitioner filed this petition u/sec.9 of the A.P. Buildings (lease,

Rent and Eviction) Control Act,1960 for eviction.

2. The brief facts of the petition are that:-

Petitioner is absolute owner of schedule premises and he leased out the same to the 1st respondent herein on 1.6.1994 for the purpose of carrying good finishing business. The said lease was reduced into writing in an agreement on which both parties have signed. The tenure of lease for 6 years commencing from 1-6-1994 till 31.5.2000. The monthly rent fixed at Rs.725/- for first two years and Rs.906-25 ps for next two years and Rs.1133/- for last 2 years i.e. enhancement at 20% on existing rent. The 1st respondent deposited a sum of Rs.725/- with the petitioner towards security which is to be refundable without interest at the time of delivery of vacant possession for schedule property. But from 1.4.2005 the 1st respondent has committed willful default in payment f rent. The respondents 2 and 3 no way connected to the petitioner and petition schedule premises. But they by colluding with 1st respondent filed OS.490/05 on the file of Prl. Junior Civil Judge Court,

Nellore for permanent injunction and the petitioner is contesting said suit. The

2

petitioner got issued registered lawyer notice dt.2.7.2005 terminating the lease and requesting the respondent to vacates the schedule property but the 1st respondent sent reply with false averments. The notices of Respondents 2 and 3 returned unserved. Having no other go the petitioner filed

O.S.1313/2005 against the respondents for eviction but the suit was dismissed

as the provisions of Rent control Act are not applicable to the present case in view of rate of rent below Rs.3500-00, Hence the petition.

3. 2nd and 3rd respondents are set exparte. 1st respondent filed counter. He denied the entire case of the petitioner and contended that he is not the tenant of the petitioner and he is no way concerned with the schedule property and he never did any business therein at any point of time and with same contentions he gave reply notice to the petitioner also and prays the court to dismiss the petition with costs.

4. Now the points for consideration are:

1. Whether there is Land lord and Tenant relationship between the petitioner and 1st respondent or not?

2. Whether the 1st respondent has committed willful default in payment of rents from 1.04.2005 as contended by the petitioner?

3. Whether the petitioner is entitled for the relief as prayed for ?

5. During the course of enquiry petitioner examined as PW-1 and got examined Pw.2 and got marked Ex.P-1 to 16 documents. The 1st respondent examined as Rw.1. No documents marked for the respondents. Evidence closed accordingly.

6. Heard both sides.

POINT No.1:-

7. To substantiate his case the petitioner himself examined as Pw.1 and got marked EX.P1 to 16. Ex.P.1 is original rental agreement dt.09.06.1994.

EX.P.2 is original Letter dt.9.6.1994 written by 1st respondent to the Assistant

Engineer,East-2,Balajinagar with a request shift service connection

HSC.28797from pole UP1/C1 to UP1/A12 pole. And gave under taking that he will pay necessary charges. Ex.P.3 is office copy of legal notice dt.2.7.2005

3

issued by the petitioner to the respondents demanding them to deliver the vacant possession of petition schedule premises by the night of 31-7-2005 in good condition and also claimed damages at Rs.4000-00 per month. Ex.B-4 is reply notice dt.16.8.2005 issued by 1st respondent only to the petitioner denying the contents of Ex.P-3 only stating that the 1st respondent is not the tenant of the petitioner and there is no land lord and tenant relationship between the parties. Ex.P-5 is unserved returned cover of 2nd respondent with endorsement as addressee absent. Ex.P-6 is unserved returned cover of 3rd respondent. Ex.P-7 is the Certified copy of Judgment in O.S.1313/2005 filed by the petitioner against the respondent before the Court of Principal Senior Civil

Judge, Nellore for delivery of possession of schedule property and for arrears of

rent and for future damages. But the said suit was dismissed because by that time the monthly rent of schedule property is less than Rs.3500-00, hence the suit before civil court is not maintainable. Ex.P-8 is CC of decree in

OS.1313/2005. Ex.B-9 is CC of partnership dissolution deed dt.29.10-1987.

Ex.P-10 is original property tax receipt dt.30.6.2004 issued in the name of petitioner for schedule property for the period 2000 to 2003. Ex.P-11 to 15 is property tax receipts dt. 30.6.2004 issued in favour of the petitioner. But in

Ex.P-11 to 15 the door number of property is not specifically mentioned. But the Assessment No. mentioned as 6554 only. Ex.P-16 is the property tax receipt dt.29.3.2012 for the period 2011-12. However it bears the door number of schedule property as 5/554. However this document obtained recently subsequent to filing the petition. Hence it should not be taken into consideration.

8. Only 1st respondent is contesting this petition. He examined as RW-1 and deposed as per contents of his counter and Ex.P-4 reply notice. His main contention is that he is nothing to do with the schedule property and he never reside there in at any point of time and he is not the tenant of the petitioner hence there was no Land lord and tenant relationship between the petitioner and 1st respondent. In the main petition also the petitioner mentioned that 1st respondent is residing at Stone house pet. Petitioner who examined as Pw.1

4

clearly admitted in his cross examination that the 1st respondent is residing and also doing business at Stone house pet. In Ex.P.4 reply notice issued by 1st respondent also he took same contention. Pw.1 further admitted that 1st respondent is Vysya by community and he is doing his caste profession that is

Provision business. Further R.2 and 3 who said to be the doing business in the schedule shop filed a suit in O.S.No.490/2005 for Permanent Injunction against the petitioner but the 1st respondent has not filed any suit for injunction from unlawful dispossession. It seems that Rw.1 is not residing in the schedule property.

9. Pw.2 Who is third party and one of the attestor for Ex.P.1 and who is doing business and residing at Usmansaheb pet also categorically deposed that the 1st respondent own a provision shop at main road, Stone house pet,

Nellore and he is running said business for last 20 years and he never did wood polishing business in schedule shop. Further the petitioner admittedly has not filed any rent receipts of 1st respondent. The 1st respondent from the beginning denied the execution of Ex.P.1. But the evidence of Pws 1 and 2 is against the contents of Ex.P.1. On one hand Pw.2 deposed that the 1st respondent signed on Ex.P.1 in his presence and on the other hand he deposed that the 1st respondent never did business in the schedule shop. Ex.P.2 also nothing to do with the schedule property. It is only an application for shifting service connection from one pole to another. Hence Ex.P.1 and 2 no way helpful to the case of petitioner. The petitioner also failed to file any documents showing that 1st respondent used to pay rents to him. The petitioner also clearly admitted that he has not filed any documents to show that he is owner of schedule premises. It is the contention of the petitioner that he got the schedule property in their family partition. But admittedly there is no document filed to that effect. Though he filed Ex.P.16 partnership dissolution deed it serves nothing to the petitioner. Therefore the petitioner failed to establish that the 1st respondent is his tenant there by the relationship of land lord and tenant is not established. Accordingly the point is answered.

5

POINT:2

10. According to the petitioner Ex. P-1 was executed only for 6 years period which was ended by 31.5.2000. Thereafter, no fresh lease agreement was executed between petitioner and 1st respondent. In view of the findings given in the above point it is proved that the 1st respondent is not the tenant of the petitioner. The petitioner in the petition itself mentioned that the respondents 2 and 3 no way connected to the petition schedule premises. But in the cause title the petitioner mentioned that respondents 2 and 3 are doing wood finishing business in the schedule shop. Further, at the time of submitting arguments the counsel for petitioner contended that he did not seek any relief against respondents 2 and 3. He contended that he has filed not press memo against the 2nd and 3rd respondents but no such memo is available in the record. It seems that the petitioner not having interest in proceeding against the respondents 2 and 3. though respondents 2 and 3 were set exparte since the petitioner choose not to proceed against them this court thinks it is just and proper to dismiss the petition against them. When it is proved that the 1st respondent is not the tenant of the petitioner the payment of rents or committing default does not arise. Accordingly the point is answered.

POINT.3:

11. The documents filed by the petitioner not reflected that the petitioner is owner of schedule property. However, Ex.P.11 to 15 stands in the name of the petitioner the said documents does not bears the door number of schedule property. Only basing on Ex.A-10 and 16 petitioner can not be claimed as the owner. However, it is not the forum to decide the title of the petitioner over schedule property. From the above discussion this court held that the petitioner failed to prove that there is land lord and tenant relationship between petitioner with 1st respondent. The evidence of PW-2 also no way helpful to the case of the petitioner further helpful to the 1st respondent.

When it is proved that the 1st respondent is not the tenant of the petitioner the payment of rents or committing default does not arise. Hence, the

6

petitioner is not entitled for any relief. Accordingly the point is answered.

In the result the petition is DISMISSED. In the circumstances both parties shall bear their own costs.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open Court on this the 26th day of April, 2013.

Rent controller -cum-

Principal Junior Civil Judge,

Nellore

Appendix of evidence Witnesses examined

For Petitioner : For Respondent:

PW-1 G.Mohan RaoR.W.1:A.Subba Rao P.W.2: T.Sreerama Murthy Documents marked

For Petitioner:-

Ex.P.1. Original lease agreement dt.9.6.1994. Ex.P.2. Letter Dt.9.6.1994 addressed by A.Subba Rao to A.P.Transco, Nellore. Ex.P.3: Office copy of legal notice dt.2.7.2005 Ex.P.4: Reply notice Dt.16.8.2005 given by Respondent No.1. Ex.P.5: Unserved returned cover of R2. Ex.P.6. Unserved returned cover of R3. Ex.P.7. C.C. Of Judgment in OS.1313/2005 Ex.P.8: C.C. Of Decree in O.S.1313/2005. Ex.P.9: cc of partnership dessolution deed dt.29.10.1987 Ex.P.10 : Original property Tax receipt dt.30.6.2004. Ex.P.11 to 15:Original property Tax receipts dt.30.6.2004. Ex.P.16: Original property Tax receipt dt.29.3.2012.

For Respondent:- Nil

Rent Controller -cum-

Principal Junior Civil Judge,

Nellore.

1

IN THE COURT OF THE RENT CONTROLLER -CUM-PRINCIPAL JUNIOR CIVIL

JUDGE: NELLORE

Friday, the 26th day of April, 2013

Present: SMT. D.MADHAVI KRISHNA, M.A.,M.L., Rent Controller -cum-

Principal Junior Civil Judge , Nellore.

R.C.C.No.47/2007

Gundlapalli Mohan Rao

... Petitioner

Vs.

1. Addepalli SubbaRao.

2. Sk.Masthan Saheb.

3. Sk.Iliyaz ... Respondents

This Petition coming up for final hearing before me on 22-04- 2013 in the presence of Sri. N. Srinivasulu reddy, Advocate for petitioner and of Sri P.Venugopal, Advocate for respondent no.1 and R.2 and 3 were exparte, having stood over for consideration till this day, this Court delivered the following::

O R D E R

The petitioner filed this petition u/sec.9 of the A.P. Buildings (lease,

Rent and Eviction) Control Act,1960 for eviction.

2. The brief facts of the petition are that:-

Petitioner is absolute owner of schedule premises and he leased out the same to the 1st respondent herein on 1.6.1994 for the purpose of carrying good finishing business. The said lease was reduced into writing in an agreement on which both parties have signed. The tenure of lease for 6 years commencing from 1-6-1994 till 31.5.2000. The monthly rent fixed at Rs.725/- for first two years and Rs.906-25 ps for next two years and Rs.1133/- for last 2 years i.e. enhancement at 20% on existing rent. The 1st respondent deposited a sum of Rs.725/- with the petitioner towards security which is to be refundable without interest at the time of delivery of vacant possession for schedule property. But from 1.4.2005 the 1st respondent has committed willful default in payment f rent. The respondents 2 and 3 no way connected to the petitioner and petition schedule premises. But they by colluding with 1st respondent filed OS.490/05 on the file of Prl. Junior Civil Judge Court,

Nellore for permanent injunction and the petitioner is contesting said suit. The

2

petitioner got issued registered lawyer notice dt.2.7.2005 terminating the lease and requesting the respondent to vacates the schedule property but the 1st respondent sent reply with false averments. The notices of Respondents 2 and 3 returned unserved. Having no other go the petitioner filed

O.S.1313/2005 against the respondents for eviction but the suit was dismissed

as the provisions of Rent control Act are not applicable to the present case in view of rate of rent below Rs.3500-00, Hence the petition.

3. 2nd and 3rd respondents are set exparte. 1st respondent filed counter. He denied the entire case of the petitioner and contended that he is not the tenant of the petitioner and he is no way concerned with the schedule property and he never did any business therein at any point of time and with same contentions he gave reply notice to the petitioner also and prays the court to dismiss the petition with costs.

4. Now the points for consideration are:

1. Whether there is Land lord and Tenant relationship between the petitioner and 1st respondent or not?

2. Whether the 1st respondent has committed willful default in payment of rents from 1.04.2005 as contended by the petitioner?

3. Whether the petitioner is entitled for the relief as prayed for ?

5. During the course of enquiry petitioner examined as PW-1 and got examined Pw.2 and got marked Ex.P-1 to 16 documents. The 1st respondent examined as Rw.1. No documents marked for the respondents. Evidence closed accordingly.

6. Heard both sides.

POINT No.1:-

7. To substantiate his case the petitioner himself examined as Pw.1 and got marked EX.P1 to 16. Ex.P.1 is original rental agreement dt.09.06.1994.

EX.P.2 is original Letter dt.9.6.1994 written by 1st respondent to the Assistant

Engineer,East-2,Balajinagar with a request shift service connection

HSC.28797from pole UP1/C1 to UP1/A12 pole. And gave under taking that he will pay necessary charges. Ex.P.3 is office copy of legal notice dt.2.7.2005

3

issued by the petitioner to the respondents demanding them to deliver the vacant possession of petition schedule premises by the night of 31-7-2005 in good condition and also claimed damages at Rs.4000-00 per month. Ex.B-4 is reply notice dt.16.8.2005 issued by 1st respondent only to the petitioner denying the contents of Ex.P-3 only stating that the 1st respondent is not the tenant of the petitioner and there is no land lord and tenant relationship between the parties. Ex.P-5 is unserved returned cover of 2nd respondent with endorsement as addressee absent. Ex.P-6 is unserved returned cover of 3rd respondent. Ex.P-7 is the Certified copy of Judgment in O.S.1313/2005 filed by the petitioner against the respondent before the Court of Principal Senior Civil

Judge, Nellore for delivery of possession of schedule property and for arrears of

rent and for future damages. But the said suit was dismissed because by that time the monthly rent of schedule property is less than Rs.3500-00, hence the suit before civil court is not maintainable. Ex.P-8 is CC of decree in

OS.1313/2005. Ex.B-9 is CC of partnership dissolution deed dt.29.10-1987.

Ex.P-10 is original property tax receipt dt.30.6.2004 issued in the name of petitioner for schedule property for the period 2000 to 2003. Ex.P-11 to 15 is property tax receipts dt. 30.6.2004 issued in favour of the petitioner. But in

Ex.P-11 to 15 the door number of property is not specifically mentioned. But the Assessment No. mentioned as 6554 only. Ex.P-16 is the property tax receipt dt.29.3.2012 for the period 2011-12. However it bears the door number of schedule property as 5/554. However this document obtained recently subsequent to filing the petition. Hence it should not be taken into consideration.

8. Only 1st respondent is contesting this petition. He examined as RW-1 and deposed as per contents of his counter and Ex.P-4 reply notice. His main contention is that he is nothing to do with the schedule property and he never reside there in at any point of time and he is not the tenant of the petitioner hence there was no Land lord and tenant relationship between the petitioner and 1st respondent. In the main petition also the petitioner mentioned that 1st respondent is residing at Stone house pet. Petitioner who examined as Pw.1

4

clearly admitted in his cross examination that the 1st respondent is residing and also doing business at Stone house pet. In Ex.P.4 reply notice issued by 1st respondent also he took same contention. Pw.1 further admitted that 1st respondent is Vysya by community and he is doing his caste profession that is

Provision business. Further R.2 and 3 who said to be the doing business in the schedule shop filed a suit in O.S.No.490/2005 for Permanent Injunction against the petitioner but the 1st respondent has not filed any suit for injunction from unlawful dispossession. It seems that Rw.1 is not residing in the schedule property.

9. Pw.2 Who is third party and one of the attestor for Ex.P.1 and who is doing business and residing at Usmansaheb pet also categorically deposed that the 1st respondent own a provision shop at main road, Stone house pet,

Nellore and he is running said business for last 20 years and he never did wood polishing business in schedule shop. Further the petitioner admittedly has not filed any rent receipts of 1st respondent. The 1st respondent from the beginning denied the execution of Ex.P.1. But the evidence of Pws 1 and 2 is against the contents of Ex.P.1. On one hand Pw.2 deposed that the 1st respondent signed on Ex.P.1 in his presence and on the other hand he deposed that the 1st respondent never did business in the schedule shop. Ex.P.2 also nothing to do with the schedule property. It is only an application for shifting service connection from one pole to another. Hence Ex.P.1 and 2 no way helpful to the case of petitioner. The petitioner also failed to file any documents showing that 1st respondent used to pay rents to him. The petitioner also clearly admitted that he has not filed any documents to show that he is owner of schedule premises. It is the contention of the petitioner that he got the schedule property in their family partition. But admittedly there is no document filed to that effect. Though he filed Ex.P.16 partnership dissolution deed it serves nothing to the petitioner. Therefore the petitioner failed to establish that the 1st respondent is his tenant there by the relationship of land lord and tenant is not established. Accordingly the point is answered.

5

POINT:2

10. According to the petitioner Ex. P-1 was executed only for 6 years period which was ended by 31.5.2000. Thereafter, no fresh lease agreement was executed between petitioner and 1st respondent. In view of the findings given in the above point it is proved that the 1st respondent is not the tenant of the petitioner. The petitioner in the petition itself mentioned that the respondents 2 and 3 no way connected to the petition schedule premises. But in the cause title the petitioner mentioned that respondents 2 and 3 are doing wood finishing business in the schedule shop. Further, at the time of submitting arguments the counsel for petitioner contended that he did not seek any relief against respondents 2 and 3. He contended that he has filed not press memo against the 2nd and 3rd respondents but no such memo is available in the record. It seems that the petitioner not having interest in proceeding against the respondents 2 and 3. though respondents 2 and 3 were set exparte since the petitioner choose not to proceed against them this court thinks it is just and proper to dismiss the petition against them. When it is proved that the 1st respondent is not the tenant of the petitioner the payment of rents or committing default does not arise. Accordingly the point is answered.

POINT.3:

11. The documents filed by the petitioner not reflected that the petitioner is owner of schedule property. However, Ex.P.11 to 15 stands in the name of the petitioner the said documents does not bears the door number of schedule property. Only basing on Ex.A-10 and 16 petitioner can not be claimed as the owner. However, it is not the forum to decide the title of the petitioner over schedule property. From the above discussion this court held that the petitioner failed to prove that there is land lord and tenant relationship between petitioner with 1st respondent. The evidence of PW-2 also no way helpful to the case of the petitioner further helpful to the 1st respondent.

When it is proved that the 1st respondent is not the tenant of the petitioner the payment of rents or committing default does not arise. Hence, the

6

petitioner is not entitled for any relief. Accordingly the point is answered.

In the result the petition is DISMISSED. In the circumstances both parties shall bear their own costs.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open Court on this the 26th day of April, 2013.

Rent controller -cum-

Principal Junior Civil Judge,

Nellore

Appendix of evidence Witnesses examined

For Petitioner : For Respondent:

PW-1 G.Mohan RaoR.W.1:A.Subba Rao P.W.2: T.Sreerama Murthy Documents marked

For Petitioner:-

Ex.P.1. Original lease agreement dt.9.6.1994. Ex.P.2. Letter Dt.9.6.1994 addressed by A.Subba Rao to A.P.Transco, Nellore. Ex.P.3: Office copy of legal notice dt.2.7.2005 Ex.P.4: Reply notice Dt.16.8.2005 given by Respondent No.1. Ex.P.5: Unserved returned cover of R2. Ex.P.6. Unserved returned cover of R3. Ex.P.7. C.C. Of Judgment in OS.1313/2005 Ex.P.8: C.C. Of Decree in O.S.1313/2005. Ex.P.9: cc of partnership dessolution deed dt.29.10.1987 Ex.P.10 : Original property Tax receipt dt.30.6.2004. Ex.P.11 to 15:Original property Tax receipts dt.30.6.2004. Ex.P.16: Original property Tax receipt dt.29.3.2012.

For Respondent:- Nil

Rent Controller -cum-

Principal Junior Civil Judge,

Nellore.

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE: NELLORE

Monday, this the 29th day of April, 2013

Present: SMT. D.MADHAVI KRISHNA, M.A.,M.L.,

Principal Junior Civil Judge , Nellore.

O.S.No.351/2012

Bollineni Ramasubbaiah ... Plaintiff

Vs.

Vadlamudi Ramanamma ... Defendant

This suit coming up for final hearing before me on 26-04-2013 in the presence of Sri T.V.Subba Rao, Advocate for plaintiff and of Sri K.Srinivasulu, Advocate for defendant having stood over for consideration till this day, this Court delivered the following::

J U D G M E N T

The plaintiff filed this suit for recovery of amount .97000/-₹

2. The brief facts of the plaint are that:-

Defendant borrowed a sum of Rs.57200/- from the plaintiff for his contract works on 2.9.2009 and executed demand promissory note agreed to repay with interest @24% p.a. Since then the defendant did not choose to repay the amount.

Then the plaintiff sent a legal notice dt.21.7.12 to the defendant which was duly served on her, but failed to comply. Hence the suit.

3. The defendant filed written statement denying the entire suit facts and borrowing amount from the plaintiff and execution of promissory note. She contended that she is homely woman following tradition and customs as such she has no links with contract works as alleged by the plaintiff. There is no whisper in suit promissory note about 'contract works'. Hence the suit promissory note is 2 fabricated and forged. There is a civil suit pending between them taking advantage of the same the plaintiff copied her signature in promissory note and prays the court to dismiss the suit with exemplary costs.

4. Basing on the pleadings the following issues are framed for trial:-

1. Whether the suit promissory note dt.2.9.09 is executed by the defendant or not?

2. whether the plaintiff is entitled for recovery of suit amount as prayed for?

3. To what relief ?

5. During the course of trial the plaintiff examined as PW-1 and got examined

Pw2 and 3 and got marked Exs.A-1 to A.3 documents. On the the defendant examined as Dw.1.No documents marked for defendants. Evidence closed accordingly.

6. Heard both sides.

7. ISSUE No.1 and 2:-

To substantiate the case of plaintiff, the plaintiff examined as Pw1 and got marked Exs.A.1 to A.3 documents. Ex.A.1 is original promissory note dt.2.9.2009.

Ex.A.2 is office copy of legal notice dt.21.7.2009. Ex.A.3 is postal acknowledgment.

8. Pw.1 deposed in support of his case. He got examined Pw.2 who said to be scribe of Ex.A.1. Pw.3 is one of the attestor of Ex.A.1. Both Pw.2 and 3 clearly deposed about borrowing of amount by the defendant and execution of Ex.A.1 infavour of the plaintiff. They further deposed that the suit transaction take place 3 at 12.00 noon at the house of the defendant. Pw.2 deposed about the presence of

Pw.3 and defendant at the time of suit transaction and Pw.3 also deposed about the presence of Pw.2, another attestor Rama subbaiah and the defendant at that time.

Though the younger brother of the plaintiff is son in law of Pw.2 and though the defendant filed a suit against them for declaration on this ground his evidence need not be rejected.

9. It is suggested to Pw.1 that Ex.A.1 was executed on 2.9.2000 but the year portion was altered as 2009 to save limitation, but it was denied by the plaintiff. It seems that the defendant admitted the signature in Ex.A.1 but denied its execution on 2.9.2009. But this plea has not been taken in written statement.

Therefore it is improvement in the defense of the defendant. It is suggested to Pw.1 that there is civil suit O.S.724/2010 pending between the brother of the plaintiff and the defendant, but the Plaintiff pleaded ignorance about the same. Finally it is suggested that in view above suit this suit is filed against the defendant and it was denied by PW.1. Similarly though Pw.2 and 3 were subjected to cross examination nothing was elicited infavour of the defendant.

10. Coming to the evidence of the defendant who examined as Dw.1. In her cross examination she denied her signatures on suit summons, her vakalath, on her written statement and on Ex.A.3 acknowledgment and also Ex.A.1 pronote. Though the defendant contended that she discharged the debt which was taken in the year 2000 this plea was not taken in written statement. The defendant also did not take any steps to comparison of signatures. It seems that the defendant taking defense only to escape the payment. She also did not choose to give reply to Ex.A.2 notice.

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Simply the defendant deposed that the signature on Ex.A-1 does not belongs to her but failed to prove her defense. She did not examine any independent witnesses to support her version. She also denied her signatures on her own documents. It seems that the evidence of defendant is not believable. Hence the defendant failed to prove her contentions and on other hand the plaintiff by his oral and documentary evidence established the suit transaction. Hence he is entitled for recovery of suit amount. Accordingly the issues are answered.

11. ISSUE:3:

In view of my finding in above issues the case of the plaintiff is held proved hence his suit is liable to be decreed.

In the result the suit is decreed for .97,000/- with costs and interest at 12%₹ p.a. from the date of filing the suit till the date of decree and @ 6% p.a from the date of decree till realization on Rs57,000/-.

Dictated to the Personal Assistant, transcribed by her corrected and

pronounced by me in the open Court on this the 29th day of April, 2013.

Principal Junior Civil Judge,

Nellore

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: PW.1. B. Ramasubbaiah.

PW.2. V.Venkata Subbaiah

PW.3. B.Gopala krishna.

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FOR DEFENDANT:

DW-1. V.Ramanamma.

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A.1. Original Promissory note dt.2.9.2009.

Ex.A.2. Office copy of legal notice dt.21.7.12 with postal receipt.

Ex.A.3. Postal acknowledgment.

FOR DEFENDANT: Nil

P JCJ, Nellore.