Sri.D.Vishnu Prasada Reddy,B.Sc.,M.L,

1

BEFORE THE I ADDL. CHIEF JUDGE; CITY CIVIL COURT;

SECUNDERABAD

DATED THIS THE 27TH DAY OF JULY 2016

PRESENT ; SRI VISHNU PRASADA REDDY, B.SC,M.L

I ADDL. CHIEF JUDGE

O.P.NO.126 OF 2005

Between:

A.P.State Financial Corporation, Ramachandrapuram Branch, rep by its Asst. General Manager Sri U.Dileep Kumar …Petitioner

And

1.Sri G.Nagaraj 2.G.Kishan Rao 3.Smt.G.Kavitha 4.Sri N.V.Ramana 5.M/s Aristocrat Granites Pvt. Ltd 6.Smt.S.Parneeta 7.Ms.Vishnu Priya…Respondents Amended as per orders in I.A.No.1737/2015 dt.18.12.2015

This petition is coming on this day before me for final hearing in the presence of Sri V.Sridhar, Advocate for the petitioners and of Sri Ranganathan, Advocate for the respondents, having stood over till this day for consideration, this court delivered the following:

O R D E R

This is a petition filed U/sec.31(1) (aa) of State

Finance Corporation Act 1951 seeking to direct the respondents 1 to 4 to pay the petitioner Corporation a sum of Rs.3,39,42,762/- with subsequent interest @ 18% p.a. from 31.10.04 till the date of realization and to order attachment of petition schedule property, for auction and realization of the due amount to the petitioner corporation.

2 2The brief facts of the case of the petitioner are that the 5th respondent company is a private Limited Company and the respondents 1 to 4 are Directors of 5th respondent company and they availed loan facility from the petitioner by executing an agreement of guarantee by respondents 1 to 4 dated 12.8.89.

The 5th respondent company committed default in repayment of such loan amount along with interest agreed thereon as per the terms. By following that the petitioner Corporation issued recall cum sale notice dated 10.8.93 U/sec.29 of State Finance

Corporation Act. Later, the unit of the 5th respondent company was seized on 27.11.1993. But on making certain part payment the seized unit was again handed over to 5th respondent. Basing on subsequent defaults committed by 5th respondent company, again the unit of 5th respondent company was seized on 18.5.1995. Thereafter wide publicity was given and the unit was sold in a public auction for a consideration amount of Rs.22.50

Lakhs on 3.12.2002 in favour of Mr.A.Nagesh. After adjustment of such sale proceeds amount against the amount due to the petitioner corporation still a sum of Rs.3,39,42,769/- is found due as on 31.10.04 from the respondents, therefore, Lawyers notice dated 14.12.2004 was issued against respondents 1 to 4 calling upon them to make the payment of outstanding amount.

Because respondents 1 to 5 did not send any reply, hence, the present petition is filed for recovery of Rs.3,39,42,769/- 3 3In the counter filed on behalf of respondents 1 and 3, it is stated that the 5th respondent unit is 100% export oriented unit. Originally it was sold after seizure, for a sum of Rs.83.00 lakhs in favour of M/s Sneha Rocks and the said fact is communicated by the petitioner corporation to the respondent vide letter NO.SFC/SRB/MR and R/RR/SRM/94-95. After adjusting such sale proceeds the petitioner made a further claim of Rs.10,63,709/- as balance amount due in the loan transaction between the petitioner and the 5th respondent. But for such claim a suitable reply was sent by the respondent denying their liability. Further contention of the respondent is that because the unit was seized and sold and the proceeds were already recovered, they are not liable to pay any amount. On the other hand, the respondents contended that for illegally handovering the asset to the purchaser over which SBI had first charge, the respondents are entitled for claim of compensation. Further, the defence contention of the respondents is that there is no cause of action for the petitioner to file the present petition.

4During enquiry on behalf of petitioners PW.1 examined and Exs.A1 to A22 documents were marked. On behalf of respondents Rw.1 was examined and Exs.B1 to B15 documents were marked.

5During the course of enquiry respondent No.2 died as per orders in I.A.No.1737/2015, Respondents 1,6 and 7 are 4 recorded as legal representatives of respondents 2, and

Respondents 6 and 7 are impleaded.

6Heard both sides.

7Now the point for consideration is :

Whether the petitioner has established substantial grounds to pass an award directing the respondents 1 to 4 to pay Rs.3,39,42,761/- with interest at 18% pa. from 31.10.04 to the petitioner corporation or not and to order attachment against petition mentioned property ?

8.POINT :

Mr.K.M.K.Prasad, the Branch Manager of petitioner

Corporation in his evidence marked Ex.A1, the attested copy of delegation of powers of Board of Directors dated 1.8.07 authorising him to prosecute the present petition. He categorically stated that the respondents 1 to 4 are the Directors of 5th respondent and they approached the petitioner Corporation for financial assistance of establishing granite industrial unit at

Annaram village, Jinnaram Mandal of Medak District in the name of 5th respondent. Basing on the application of 5th respondent, the petitioner corporation sanctioned loan of Rs.60.00 lakhs on 5.8.88 with a term loan of Rs.20.00 lakhs from APIDC for setting up 100% export oriented unit of manufacturing granite slabs, the petitioner corporation had also sanctioned Seed capital

Assistance of Rs.10.00 lakhs. Ex.A2 is the sanctioned letter with the terms and conditions. He further stated that the 5th respondent company mortgaged Rs.3.00 Acres of land covered by survey No.56, and 60 of Annaram village said above.

5

Respondents 1 to 4 have also executed personal guarantee on 12.8.89 for the above said sanctioning of term loan and Seed capital and Ex.A3 is the agreement of guarantee dated 12.8.89 executed by respondents 1 to 4. PW.1 further stated that Ex.A4 is the recall cum sale notice dated 10.8.93. Because the respondents failed to repay the loan as per schedule and committed default and that on 27.11.93 the publication was made putting the assets for sale and the sale letter dated 23.3.94 was issued in favour of M/s Sneha Rock Pvt. Ltd for agreed consideration of Rs.83.00 lakhs, the copy of which is marked a Ex.A5. APIIDC also confirmed such sale and the copy of such letter is Ex.A6 and Ex.A5 is the copy of the order of the

Asst. Collector and Central Excise detaining the plant and machinery of respondent No.5 on 8.2.1995 against the arrears of excise duty. In the above circumstances, by addressing Ex.A9 letter dated 18.3.1995 M/s Sneha Rocks Pvt. Ltd requested for repayment of their down payment of Rs.29.60 lakhs since Central

Excise department has attached the plant and machinery of 5th respondent. Basing on Ex.A9 the board of Directors of petitioner corporation cancelled the sale agreement dated 6.5.95 and agreed to refund Rs.29.60 lakhs and Ex.A11 is the letter dated 28.6.95 addressed to that effect by the petitioner to M/s Sneha

Rocks Pvt. Ltd. Ex.A12 is the copy of the agreement dated 13.7.1995 for cancellation of sale agreement dated 6.5.94 between the petitioner and M/s Sneha Rocks Pvt. Ltd.

6

Consequent to Ex.A12, the petitioner corporation along with

APIDC retook possession of it i.e. the unit of Respondent No.5.

Exs.A13 and A14 are the copies of notice issued by the Asst.

Commissioner of Central Excise dated 4.9.96 and in the month of

April 1997 respectively.

9The further contention of PW.1 is that by following the guidelines in Mahesh Chand’s case rendered by Supreme Court of

India a letter dated 18.2.1999 was addressed to first respondent for proposed sale of the assets of Respondent No.5 to one Sri

K.Madusudan Reddy for Rs.34.00 lakhs and Ex.A15 is the copy of such letter which was returned unserved as addressee left.

Exs.A16 and A17 are postal acknowledgements for such letter.

Thereafter the petitioner’s corporation has issued a fresh sale notification and after conducting the proceedings of the sale and confirmation of sale of assets by APIDC, a sale letter dated 28.6.99 was addressed to Sri K.Madusudan Reddy and Ex.A18 is copy of the same. But the said K.Madusudan Reddy backed out from sale offer by referring to the Central Excise problem itself and his Earnest Money Deposit amount is forfeited by plaintiff

Corporation. Again the unit of 5th respondent was advertised for sale on 2.8.2000 and proceedings of sale were conducted and sale was confirmed in favour of P.Shaker of M/s Himagreeshma

Granites vide letter dated 17.10.2000 for sale consideration amount of Rs.25.55 lakhs and the copy of the same is marked as

Ex.A19. But the said P.Shanker of M/s Himagreeshma Granites 7 was also backed out for purchasing the assets by referring to

Central Excise attachment. Consequently, another advertisement

dated 11.6.2000 was issued and in pursuance of said notification,

the sale was held and confirmed by the board on 30.7.2002.

Ex.A20 is the Extract of Board minutes of the petitioner, accordingly the sale letter dated 30.12.2002 was issued in favour of A.Nagesh for total sale consideration amount of Rs.22.50 lakhs, the copy of which is marked as Ex.A21.

10PW.1 further stated that after adjusting the above said sale proceedings against the amount due in the loan account of respondent No.5 as on 31.10.2004 as per Ex.A22 statement of account, is showing the outstanding amount as Rs.3,39,41,340/- 11The further version of PW.1 is that because the asset of 5th respondent was detained by Central Excise department due to non payment of Excise duty, the purchasers on several occasions backed out and the machinery was rusted. The fact that M/s Sneha Rocks Pvt.Ltd backed out to purchase the asset basing on which the letter was issued by petitioner Corporation to the respondents showing the amount due as Rs.10,63,709 was also known to the respondents, therefore, they cannot rely upon such letter. Hence, the Honourable court may be pleased to allow the petition for recovery of Rs.3,39,41,340/- as prayed for.

12In the cross examination of PW.1 it is mainly confronted that he do not know about the letter of respondent

No.1 disputing the claim amount of Rs.10,63,709/- is due after 8 the sale in favour of M/s Sneha Rocks Pvt. Ltd. PW.1 admitted that after first transaction in favour of M/s Sneha Rocks Pvt. Ltd, the property of 5th respondent was never entrusted to the possession of respondent. He denied the suggestion that State

Bank of India had first charge over the properties of 5th respondent to a tune of Rs.11.00 lakhs and the proceedings for recovery of the same are pending at DRT appellant authority at

Bangalore and the petitioner corporation has been impleaded as one of the parties to such proceedings. PW.1 admitted that the dues of respondent No.1 to Central Excise are statutory in nature and as per clause (9) of Ex.A5(P5), the petitioner corporation is not liable to pay any dues with statutory liability or otherwise.

Panchanama was conducted at the time of seizure of assets of respondent No.5. PW.1 stated that he cannot furnish the details whether any rent was collected from M/s Sneha Rocks Pvt. Ltd as stated at page 2 of Ex.P11 (Ex.A11). Further, it is elicited from

PW.1 that he is not aware that the petitioner has intimated about the claim of Asst. Collector Central Excise covered under Ex.P7 (A7). He admitted that M/s Sneha Rocks Pvt. Ltd was in possession of unit of respondent No.5 from 22.3.94 upto 26.6.95. Finally, it is elicited from PW.1 that the last payment of respondent No.5 to the petitioner was in March 1994. Basing on that it is suggested to him that the claim in the present petition is barred by limitation and that the respondents are no more 9 liable to pay the amount to the petitioners as the property was already sold for recovery of the loan amount.

13In the evidence of Rw.1 the main contention is that the claim of the petitioners Corporation that they were not aware of the rules framed by Govt of India regarding the payment of

Central Excise Duty is false and frivolous. The cause of action for the Asst. Collector of Central Excise arose on sale of assets to

M/s Sneha Rocks and because they failed to make efforts to enter into a new 100% export agreement with an undertaking that the unit is export oriented unit, the revision order was issued by the Central Excise department on 8.2.1995.

Therefore, cancelling the agreement of sale of M/s Sneha Rocks

Pvt. Ltd is illegal and is only done as a favour to M/s Sneha Rocks

Pvt. Ltd. Vide notice dated 8.2.1995 and a subsequent notice

dated 14.3.1995, the demand is for payment of Rs.10,76,874/-.

The acts of petitioner corporation in cancelling the sale and refunding the amount itself is arbitrary, illegal and unlawful, therefore, the respondents cannot be held for such commissions and omissions of the petitioner. In fact in the recall cum sale notice dated 10.8.1993 the petitioner corporation showed the amount due from the 5th respondent as Rs.74,52,000/- as on 30.4.1993, whereas the unit was sold for Rs.83.00 lakhs immediately after seizure. Inspite of that they made a claim for

Rs.10,63,709/-. The respondent company while denying even such liability on various grounds made a claim for money due to 10

SBI for illegally handovering the assets which are under the first charge of SBI. Having cancelled sale in favour of M/s Sneha

Rocks Pvt. Ltd, the petitioner alone has to blame itself and cannot claim the relief in the present petition against the respondent.

14Rw.1 further stated that the property bearing No.4-2- 86 at old Boiguda is HUF property and neither of the respondents are absolute owners of the same, subsequently, by way of family arrangement dated 11.11.42 covered by registered document

No.682/1941 at Sub registrar office, the partition was made and it was allotted to Gujjar Innoji and sons covered by schedule ‘D’ of the said document. Again the legal heirs of said late Gujjar

Innoji Rao partitioned the properties. The back side portion of the said property was allotted to HUF of Gujjar Kishan Rao vide partition deed dated 11.1.02 covered by Doc.No.22/02 at SRO,

Secunderabad. The said partition is disputed by the daughters of late Innoji Rao claiming a share.

15Ultimately, Rw.1 stated that the claim of the petitioner is hopelessly barred by limitation as the 5th respondent unit was seized on 27.11.93 and it was never in possession of 5th respondent, thereafter it is the petitioner company which has violated the rules of excise laws as it had sold the unit to third parties without obtaining proper permission as per law.

16In the cross examination of Rw.1 it is mainly elicited that he do not remember any loan amount due to the 11

Corporation. He did not approach the corporation while settling the terms of sale. He admitted that he did not obtain latest details from the Corporation after sale to A.Nagesh. After eliciting such statement Rw.1 voluntarily stated that he is not concerned with the subsequent events after the sale of unit to

M/s Sneha Rocks Pvt. Ltd. Among the documents marked through Rw.1 Ex.B1 is the licence for settling up 100% EOU

dated 17.3.1988. Ex.B2 is the GP-2 for purchase of exercisable

goods without payment of excise duty. Ex.B3 is bill of entry for ware housing imported Diamond Segment. Ex.B4 is the letter of payment to G.Nagaraj intimating about the finance for establishing granite processing unit. Ex.B5 is the insurance covered for the unit of respondent No.5 dated 30.4.1992. Exs.B6 to B9 are certificates for Foreign Inward remittance from SBI.

Ex.B10 is such certificate from Bank of Baroda. Ex.B11 is the

AR-4 form for removal of excisable goods for export dated 14.10.93. Ex.B12 is the copy of letter addressed to APSFC objecting the unit being sold without debonding. Ex.B13 is the office copy of letter to APSFC. Ex.B14 is the copy of

Doc.No.682/42 and Ex.B15 is the copy of doc.No.22/52 regarding family arrangement and partition in respect of the property on which the attachment is sought for.

17After scrutiny of the material facts stated by PW.1 and

Rw.1 and the documents referred by them, the crucial points emerged for consideration are as follows:

12 •Whether the petitioner Corporation can make any further claim against the respondents after having realized a sum of Rs.83.00 lakhs as proceeds of the seized unit sold to M/s

Sneha Rocks Pvt. Ltd. ?

•Whether the petitioner is entitled to make claim against the respondents for Rs.3,39,42,761/- or is there any liability of

Respondents 1 to 4 to discharge the claim as guarantors?

18In support of the contention that the respondents 1 to 4 are not personally liable for any amounts due from the 5th respondent company, the respondent side company relied upon the observations in Karnataka SFC Vs. M.Narasaiah and others covered by appeal (Civil) NO.610-612/2004. From the facts of the above referred case, the action of appellant corporation therein in exercising its power U/sec.89 of the Act directing to take possession of the properties of the guarantors is challenged on the guise that the appellant corporation could not have been proceeded against the guarantors without initially taking recourse

U/sec.31 of the Act against the principal borrower. After elaborately dealing with all the aspects of both side parties to the lis, ultimately, at para 34, the apex court observed that “it is now well settled that when more than one remedy is provided for an option is given to a suitor to opt for one or other remedy such a provision is not ultra virus as has been held in Madan Lal Chagan

Lal Pvt.Ltd Vs. Municipal Corporation of Greater Bombay and others reported at 1974 (2) SCC page 402, Director of Industries 13

UP and others Vs.Deep chand Agarwal reported at 1980(2) SCC page 332 and ultimately dismissed the appeal”, against the impugned judgment of High Court of Karnataka with an observation that the order passed by Karnataka State Financial

Corporation U/sec.29 to take possession of properties of the petitioners (guarantors) are quashed.

19But coming to the facts of present case, even though the present petition is filed by referring to Sec.31 of the Act in addition to such relief available U/sec.31 of the act as consequential relief, the petitioner sought for the relief against the properties of guarantors U/sec.29 of the Act also. The present petition is for different relief, simultaneously U/sec.31 and 29 of the SFC act. On the other hand, from the facts of the present case, the petitioner has seized the mortgage unit and appropriated the sale proceeds towards the liability of the

principal borrower. Inspite of such action the claim of the

present petitioner is for recovery of balance amount due from the

principal borrower as well as the guarantors and to grant the

relief as provided U/sec.31 and 29 simultaneously. There is no bar in respect of the nature of the relief sought in the present petition as per the observations referred in the above citation.

20Coming to the first crucial point raised above, as rightly contended on behalf of respondents, the petitioner corporation after realizing Rs.83.00 lakhs by sale of seized property issued letter calling upon the respondents to pay 14

Rs10,63,709/- as the balance amount due, therefore, the petitioner corporation is estopped from making more claim than the above said balance amount due as Rs.10,63,709/-. The version of PW.1 and the contents of Ex.P6 to P22(A series) regarding cancellation of sale already held and refund of sale consideration amount to M/s Sneha Rocks Pvt. Ltd are in no way binding on the respondents, more so, when there is no fraud established against the respondents regarding the proceedings of the sale under which the asset fetched Rs.83.00 lakhs. As rightly contended on behalf respondents, the seized asset is with a privilege of exemption of excise duty as export oriented unit and it should have been used with such status alone by the prospective purchasers and for the default in respect of terms of such status Committed by the prospective purchasers, obviously, the Central excise department levied penalty and debonded the machinery and stocks. Therefore, the respondents are in no way responsible for the consequences of reduction in the prices of unit in the subsequent sales for the omissions committed by the petitioner and the purchaser in respect of seized unit. Hence, the petitioners are entitled to claim the balance amount of

Rs.10,63,709/- alone from the respondents as on the date of deposit of such amount by the purchaser M/s Sneha Rocks and the petitioner cannot enhance the liability of the respondent as claimed in bunch of Ex.A22 statement of account.

15 21No doubt, the respondent disputed to pay an amount of Rs.10,63,709/- by sending a reply to the petitioner on the ground that the asset sold were under the charge with SBI, etc, but on such contention the respondents are not entitled to any relief against the amount of their liability of Rs.10,63,709/- due after adjustment of Rs.83.00 lakhs against their liability in the undisputed financial assistance account with the plaintiff corporation. Therefore, the respondents failed to substantiate their contention that they are not liable even to pay

Rs.10,63,709/- as balance claimed by the petitioners as on the date of 31.3.1994 i.e. date of confirmation of sale covered by

Ex.A6.

22In the light of the observations in the above para, the petitioners failed to establish that the respondents are liable to pay a sum of Rs.3,39,42,761/- and only proved to the extent of the liability to the respondent for a sum of Rs.10,63,709/- as on 31.3.1994 with subsequent interest from such date at 18% p.a.

i.e. agreed rate of interest till the date of filing of the present petition.

23As far as the claim of the petitioners to order attachment of D.No.4-2-86, Old Boiguda on the ground that such property belongs to the respondents 1 to 4 who are the guarantors against the liability of respondent No.5, no doubt, the respondents contended that such property do not belongs to them and it is the subject matter of the family arrangements and 16 partition deeds. None of the third party claimants referred by respondents 1 to 4 are not at all parties to the proceedings of the present petition, more so, therefore, it is not desirable to adjudicate upon the rights of such third party claimants referred by the respondents in the present petition in their absence. On the other hand, the petitioner’s side contended that such claim of the respondents disowning their rights over the properties sought for attachment are all based upon fabricated documents, also cannot be decided in the absence of impleading the real claimants. Considering the surrounding facts and circumstances of the case, there is no impediment to attach the property covered by D.No.4-2-86 old Boiguda as claimed by the petitioner without prejudice to the claim of third parties to be decided during the course of execution of the decree for the amount awarded under the present petition. Therefore, the petitioners established substantial grounds to attach D.No.4-2-86, Old

Boiguda, Secunderabad, to the extent of award covered by the present petition.

In the result, the petition shall be allowed partly in favour of petitioner and against the respondents 1,3 to 7 with proportionate costs and that the respondents 1,3 to 5 and the estate of respondent No.2 in the hands of respondents 6 & 7 shall pay a sum of Rs.10,63,709/- with further interest thereon at the rate of 18% p.a. from 31.3.1994 till the date of realization and that the property bearing door No.4-2-86 old Boiguda, 17

Secunderabad, to the extent of interest of the respondents 1,3 to 7 shall be attached for realisation of the amount due under the award.

Dictated to stenographer, transcribed by her,

corrected and pronounced by me in the open court on this the 27th day of July, 2016.

I ADDL. CHIEF JUDGE

CITY CIVIL COURT: SECUNDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERFOR RESPONDENTS

PW.1: KMK Prasad RW.1: G.Nagaraj

Exhibits marked for the petitioner

Ex.A1Attested Xerox copy of delegation of powers by board of Directors to officers dt.1.8.07 Ex.A2Sanction letter given to R5 company dt.12.12.88 Ex.A3Agreement of guarantee executed by R1 to R4 dt.12.8.89 Ex.A4Recall cum sale notice issued to R5 dt.10.8.93 Ex.A5&A6 Sale letters issued to M/s Sneha Rocks Pvt. Ltd dt.22.3.94, 31.3.94 Ex.A7Order of detention issued by Asst. Collector of Central Excise dt.8.2.95 Ex.A8Letter addressed by Asst. Collector of Central excise to APSFC dt.11.3.95 Ex.A9Letter of M/s Sneha rocks addressed to MD of the Corporation for cancellation of sale agreement and refund of the money dt.19.3.95 Ex.A10Letter of the APIDC to APSFC for cancellation of sale agreement dt.12.6.95 Ex.A11Letter of the Corporation addressed to M/s Sneha rocks for cancellation of sale agreement dt.26.6.95 Ex.A12Agreement for cancellation of sale agreement between APSFC and M/s Sneha rocks Pvt. Ltd dt.13.7.95 Ex.A13Letter of Asst. Commissioner of Central Excise for payment of due dt.4.9.96 Ex.A14Demand notice issued by Asst. Commissioner of Central Excise 18

Ex.A15Letter addressed to Sri G.nagaraju (R1) informing the sale of assets to Sri K.Madhusudhan reddy for objection dt.18.2.99 Ex.A16Returned envelop dt.22.2.99 Ex.A17Returned ack. Dt.22.2.99 Ex.A18sale letter addressed to Sri K.Madhusudan Reddy for Rs.34.00 lakhs Ex.A19sale letter addressed to Sri P.Shankar dt.17.10.2000 Ex.A20True extract of board minutes for finalization of sale of land and buildings and plant and machinery of M/s Aristocrat Granites dt.30.7.02 Ex.A21Sale letter issued to Sri A.Nagesh dt.3.12.02 Ex.A22Statement of account of M/s Aristocrat Granites dt.31.10.2004

Exhibits marked for the respondents

Ex.B1Licence for setting up 100% EOU dt.17.3.1988 Ex.B2GP-2 for purchase of excisable goods without payment of Excise duty Ex.B3Bill entry for ware housing imported diamond segments dt.4.4.91 Ex.B4APSFC letter to G.Nagraj respondent therein they have intimated that they have financed many granite processing 100 EOU’s dt.13.7.1991 Ex.B5Insurance cover note No.13038 issued by National Insurance Company Ltd dt.30.4.1992 Ex.B6 to B9Certificates for foreign inward remittances from SBI NO.418776 dt.27.4.92, 418777 dt.27.4.92, 418778 dt.27.4.92, 418449 Ex.B10Certificate of foreign inward remittances from Bank of Baroda A0087221 dt.20.5.1992 Ex.B11Form AR-4 for removal of excisable goods for export dt.14.10.93 Ex.B12O/c of letter to APSFC objecting for unit being sold without De-bonding dt.10.5.1995 Ex.B13O/c of letter to APSFC objecting to harassment dt.11.11.2006. Ex.B14Copy of document No.682 of 1942 (agreement of family arrangement) Ex.B15Copy of document No.22 of 2002 Vol.1 deed of partition.

I ADD. CHIEF JUDGE

CITY CIVIL COURT: SECUNDERABAD

1A.S.No.32/13

IN THE COURT OF THE I ADDITIONAL CHIEF JUDGE: CITY CIVIL

COURT: SECUNDERABAD

DATED : THIS THE 29TH DAY OF JULY, 2016

PRESENT ; SRI D.VISHNU PRASADA REDDY, B.SC,M.L

I ADDL. CHIEF JUDGE

A.S.NO.32 OF 2013

Between:

1.Mohd. Abdul Wahab Khan reported died as per docket proceedings dated 18.1.2016 2.Ahmed Khan 3.P.Mallaiah

4.Smt.M.Kamala Bai..Appellants/plaintiffs

And

1.The Union of India Rep by its General Manager, South Central Railway 2.The DEN/Central/Hyderabad

South Central Railway..Respondents/defendants

Appeal preferred against the Judgment and decree vide

O.S.No.360 of 2005, dated 17.12.2012 of the III Senior Civil Judge,

City Civil Court, Secunderabad

O.S.NO.360 of 2005

Between :

1.Mohd. Abdul Wahab Khan reported died as per docket proceedings dated 18.1.2016 2.Ahmed Khan 3.P.Mallaiah

4.Smt.M.Kamala Bai..Plaintiffs

And

1.The Union of India Rep by its General Manager, South Central Railway 2.The DEN/Central/Hyderabad

South Central Railway..Defendants

This appeal is coming on this day before me for final hearing in the presence of Sri J.Satyaprasad, Advocate for the 2A.S.No.32/13 appellant and of Sri Hari Hara Kumar, having stood over till this day for consideration, this court delivered the following :

JUDGMENT

This is an appeal filed U/O.41 R.1 & 2 CPC seeking to set aside the judgment and decree dated 17.12.2012 in O.S.360/05 on the file of III Senior Civil Judge, City Civil Court, Secunderabad.

2The appellants herein are the plaintiffs and respondents herein are the defendants in the proceedings of the suit before the trial court and they are referred as such, hereinafter for the purpose of convenience.

3 The plaintiffs filed the suit seeking the relief of perpetual injunction against the defendants in respect of the suit schedule property which is open plot adm.245 bigas and 16 baam said to have been called as Manarilalchalka at Malkajgiri villge. The specific case of the appellant/plaintiffs is that the suit schedule property was purchased under registered sale deed dated 2/Azhar 1332F (1922) under a registered Doc.No.93, Book NO.1, Volume No.3, pages 21 at the office of District Registrar, Hyderabad in the name of Moulvi Mohd

Abdul Aziz Sahab who is the father of the first plaintiff and grand father of 2nd plaintiff. After the death of said Abdul Aziz Sahib there was an oral partition under which some of the items were allotted to the share of Mohd. Moinuddin Khan, who is the elder brother of first plaintiff and the property bearing No.197/1 adm. Ac.12.34 Guntas is shown as property of Mohd Moinuddin Khan. It is the further 3A.S.No.32/13 contention of the plaintiff’s that in the year 1957 the defendants acquired land adm. Ac.37 23 guntas forming part of Sy.No.197/1 by preparing a field map showing the exact area proposed for such acquisition. In that connection a letter was addressed by Divisional

Supdt, Secunderabad, to the Collector, Land acquisition, besides sending a copy of the same to Ravindera Co-op Housing Society Ltd,

Seethaphal Mandi, which is a portion in the acquired land. On 12.7.1958 by letter No.A4/81/58, the Hyderabad District Collector addressed to the Divisional Superintendent informing that the area covering 40 plots in survey No.197/1 is under the occupation of

Ravindera Co-op. Housing Society Ltd, and the same can be omitted while acquiring the other portion of the land by marking a copy of such letter to Mohd. Moinuddin Khan. Ultimately, the Government order was issued on 8.1.59, wherein at page 97 there is a mention that the lands to be acquired by the Govt. includes part in survey No.197/1.

On 25.2.59 the Spl. Deputy Collector land Acquisition Hyderabad, addressed a letter to Collector Land acquisition by mentioning that the land adm. Ac.10.20 guntas in survey No.197/1 along with other lands was handed over to the Railways. The total extent of lands covered by different survey Numbers including the portion covered by survey

No.197/1 was Ac.35 17 guntas vide letter No.A4/81/7A/58 dated 22.9.59, further it is stated that the land purchased by Ravindera

Coop. Housing society in survey No.197/1 has been deleted from land

Acquisition proceedings and the award was passed in respect of 33 Ac.

3 guntas which belonged to Mohd. Moinuddin Khan, s/o.Abdul Azia 4A.S.No.32/13

Khan and compensation amount of Rs.8,33,965.95 was awarded.

Thus, out of the original proposed acquisition of 37 Ac. 23 Guntas, the govt. had acquired only 33 Ac. 3 guntas, an area of 2 Ac. 3 guntas in which there was a grave yard is also not covered by payment of compensation. Hence, the said land was deleted from the original land acquisition proceedings. On 21.2.79 vide file No.72/05/LA/67, the Spl. Deputy Collector addressed a letter to Divisional

Superintendent by clearly mentioning that on 14.9.59 the Govt. had handed over the land adm.33 Ac.3 guntas shown as land plan NO.R- 123794. Later on 14.11.92 the first plaintiff sold plot Nos.9 and 10 adm.70 sq. yds and plot Nos.6 and 7 adm.25 sq. yds was also sold to

Mr.Sukhdev Prasad, the 2nd plaintiff in O.S.176/03 on the file of III

Senior Civil Judge court, Secunderabd. After their purchase the

plaintiffs 1 and 2 erected a structure in plot adm.25 sq. yds and they also paid property tax under receipt No.3751 dated 16.4.05. Apart from filing the suit in O.S.No.176/03 on the file of III Senior Civil

Judge, City civil court, Secunderabad, the above Mr.Balaram and his

son filed an application seeking stay of proceedings and on such proceedings CMA was filed before the I Addl. Chief Judge, City Civil

Court, Secunderabad. While so, plaintiffs are in occupation of plot

Nos.4 and 5 adm.500 sq. yds along with old structures therein from 1958. But the defendants under the guise of laying a road are trying to encroach the plot of plaintiffs. Hence, the present suit is filed for perpetual injunction.

5A.S.No.32/13 4In the written statement filed on behalf of first and 2nd defendants, it is contended that the town survey has been implemented in twin cities of Hyderabad and Secunderabad in the year 1969, therefore, the alleged claim of possession basing on pahani for the year 1977-78 is preposterous. The plaintiffs deliberately did not mention the extent of land acquired by Ravindera Co-op Housing

Society or the original owners and the boundaries thereof. The alleged

Government order regarding the acquired land is not an authenticated document of title to be relied upon and it is only a tentative proposal.

The defendant had already been in possession of land portions all along with Railway track in the vicinity including Seethaphalmandi

Railway station. The lands acquired were put in possession of the defendants with specific boundaries, therefore, the letter dated 21.9.60 said to have been addressed by the then Divisional

Superintendent to land Acquisition Officer has no bearing on the claim of the plaintiffs. Since the title of the said land of the vendors of the plaintiffs is not established, the alleged sale deed dated 14.11.92 is incorrect and untrue. No doubt, the sale deed on insufficient stamps have been validated on 27.11.04. Obviously, such document was not registered, therefore, such document could not be considered in support of the claim to confer the right. The property tax said to be paid is only dated 16.4.2005 just prior to filing of the present suit.

The dispute between Mota Balram and another has nothing to do with the present suit claim of the plaintiffs. Thus, none of the plaintiffs 6A.S.No.32/13 have any right or title over the suit schedule property. Therefore, the suit filed may be dismissed.

5Basing on the above pleadings, the following issues are framed:

1. Whether the plaintiffs are entitled for perpetual injunction ?

2. To what relief ?

6.Addl. Issues :

1. Whether the plaintiffs have got lawful title and possession in respect of the suit schedule property ?

2. To what relief ?

7During the course of trial, in support of the case of the plaintiff, PW.1 and 2 were examined and Exs.A1 to A32 documents were marked. On behalf of defendant, Dw.1 was examined and Exs.B1 to B3 documents were marked. After considering the evidence and material on record, the trial court dismissed the suit without costs.

Aggrieved by the said decree and judgment of the trial court, the present appeal is filed mainly on the following grounds : 1 to 9 •That the judgment and decree under appeal is contrary to law, justice and probabilities of the case.

•That the trial court erred in dismissing the suit on the erroneous presumptions that the appellants are failed establish their case 7A.S.No.32/13 that the plaintiffs are not in a legal possession of the suit scheduled property which is per-verse.

•The lower court failed to appreciate the evidence of the plaintiffs and the admitted facts need not be proved when the Dw.1 himself admitted the T.S.L.R.No.5, which is not relating to the defendants property.

•That the trial court erred that not discussing about Ex.A7 which are photos of the suit schedule property, which are clearly shows that the plaintiffs are in possession of the property but whereas the lower court overlooked said Ex.A7, thus the order under appeal is per-verse.

•That the trial court failed to consider the case of the plaintiffs and their documents, which are marked Ex.A1 to 32 to decide possession of the suit schedule property since injunction simplicitor possession is prima facie.

•The trial court ought to have come to conclusion that the plaintiffs will have to sue for declaration of title and for the consequential relief of injunction, when Dw.1 and Dw.2 have not denied the documents of the plaintiffs. Further, the trial court failed to observe that the defendants have erected fencing in and over their property, the suit schedule property is already identified by the concerned survey department, who also examined before the trial court as PW.2. But the trial court overlooked the evidence of PW.2 who is official witness and 8A.S.No.32/13 categorically stated that the suit survey number property is not covered under railway acquisition, as such, no threat or cloud to the title of the plaintiffs property. As such, the trial court has not decided the said issue properly but answered against appellants/plaintiffs.

•The trial court failed to consider the written arguments filed by the plaintiffs. To prove the injunction simplicitor, possession is a prima facie and title is ancillary and also the defendants cannot take advantage and weakness of the plaintiffs case that the burden lies on the plaintiffs to prove their case.

8Heard both sides.

9Now the point for consideration is :

Whether the appellant has established substantial grounds to set aside the judgment and decree of the trial court and to decree the suit or not ?

10.POINT :

The appellants/plaintiffs having filed the suit for the relief of permanent injunction, have to prove the prima facie case of their title over the suit schedule property and the details of their possession and enjoyment over the same and thirdly the allegations of interference of third party over such possession and enjoyment of the plaintiff.

11Regarding the prima facie case of title of appellant/plaintiff their specific version is that the plaint ‘A’ schedule property was 9A.S.No.32/13 acquired by plaintiffs 1 and 2 in oral partition among themselves and other family members and that the plaint B schedule property was purchased by third plaintiff from the first plaintiff under registered document and the said property is covered by the Will executed by third plaintiff in favour of his wife who joined as a 4th plaintiff in the suit. In support of such contention besides oral evidence of PW.1

Exs.A1 to A32 are marked. As seen from Exs.A1 to A32, Ex.A1 is

Pahani for the year 1977 to 78, Ex.A2 is copy of sale deed dated 14.11.92. None of the recitals in the above documents are showing the exclusive title of the appellants/plaintiffs over the portion described in the suit schedule property as part of survey No.197/1 at Malkajgiri.

In the grounds of appeal the specific version of plaintiff is that the lower court erred and failed to discuss about Ex.A7, which is a photo showing that the plaintiffs are in possession of the property. But a perusal of Ex.A7 photos marked on behalf of appellants/plaintiffs are not disclosing the descriptive particulars of the suit schedule property with specific survey Number and portion of any of the structures appearing in Ex.A7. Obviously, in the absence of any material evident from Ex.A7 photos to decide about the existence of relevant facts disclosing the title of appellants/plaintiffs over the suit schedule property, the trial court failed to give much significance to Ex.A7.

12Further, the appellants in the grounds of appeal specifically contended that Dws.1 and 2 did not deny the documents of plaintiff side and the trial court failed to properly appreciate the evidence of

Dw.2, who is an official witness and who has categorically stated that 10A.S.No.32/13 the suit survey number of the property is not covered under the

Railway acquisition, as such, no threat or cloud to the title of plaintiff’s property. However, the plaintiff is not entitled to rely upon the omissions and commissions of the defendants and the weakness in the case of the defendants in the absence of proving the relevant facts in support of his case to the satisfaction of the court, therefore, relief of injunction as prayed for cannot be granted on the ground that Dws.1 and 2 did not deny the documents relied upon by the plaintiff’s side.

Irrespective of such denial, the plaintiff is with a burden to establish his case by proving the relevant facts through documentary evidence.

If the documents produced on behalf of plaintiffs are not disclosing the proof of relevant facts, through the best possible evidence, their case is bound to be dismissed. Therefore, Dws.1 and 2 did not deny the documents of the plaintiff, is not a valid ground to interfere with the observations of the trial court regarding the documents relied upon by the plaintiffs.

12(a) As far as the evidence of PW.2, he is a Deputy Surveyor land records, Hyderabad, as per the statutory registers maintained by the

Town survey Numbers co-related to old revenue survey No.197 of

Malkajgiri are t.S.No.4 and 5. When confronted with certified copy of town survey record in respect of T.S.No.3,4 and 5, block-F, Ward

No.138, Lalaguda village. PW.2 admitted about its issuance from its office and the correctness of contents therein including the plan on comparison with the original register brought by him, therefore, such certified copy of Town survey register is marked as Ex.A31 and the 11A.S.No.32/13 plan annexed to it is marked as Ex.A32. Further, at column No.10 of

Ex.A31, the name of the owner is shown as Mohd Moinudding Khan, at column No.23 of Ex.A31 under the heading remarks, it is noted as vacant land, at column No.17 of Ex.A31 the total area is noted as 3,312 sq. mts. According to PW.2 the town survey was conducted between 1969 to 78 and the same was implemented in 1981. In the cross examination, it is elicited that Ex.B3 was certified copy issued by Central survey office but not the office of PW.2. Except making a bald suggestion that Inspector of survey has no authority to issue certified copies, no substantial material is elicited to doubt the facts stated by PW.2 in respect of official record and Exs.A31 and A32 certified copies.

12(b)In the pleadings as well as in the evidence of PW.1 he made it clear that the land acquisition for the purpose of railways is only in respect of 33 Ac. 3 guntas, whereas the total extent of survey No.197 situated at Lalaguda village was about 37 Ac.35 guntas. Further, the plaintiff categorically stated that the land covering 40 plots which was in the occupation of M/s Ravindera Coop Housing Society Ltd was excluded from the acquisition proceedings. The above facts stated by

PW.1 are very much corroborated by the contents of Ex.A9 to A15 disclosing the details of acquisition of land for Railways. Even though such documents do not contain the name of the plaintiffs, it is a fact that under those documents the respondent/defendant railways have been delivered possession of 33 Ac. 3 guntas in survey No.197/1 and 12A.S.No.32/13 the remaining extent was covered by 40 plots of M/s Ravindera Co-op

Housing Society in the same survey Number.

12© With the above back ground, a perusal of Ex.A7 photographs disclosing private structures, is corroborating that probably those photographs are regarding the private plots in the occupation of private persons like plaintiffs and M/s Ravindera Co-op

Housing Society Ltd. No doubt, as rightly observed by the trial court, the plaintiffs did not specifically stated that the suit schedule property is covered by specific plots in Ravindera Co-op Housing Society Ltd, such omission of the plaintiff no doubt shows a cloud regarding the version of appellants/plaintiffs that A and B schedule properties are not part of 33 Ac. 3 guntas acquired by Railways and they are the part of portions left unacquired in survey No.197/1 of Lalaguda village.

12(d)No doubt, the respondent/defendant resisted the suit by taking a specific plea that the entire land shown in the plaint schedule is also part of Railway land acquired way back in the year 1957, except making such bald contentions, the defendants side did not produce any documents with the details of survey report and survey plan showing that the suit schedule portions are part of acquired land in survey No.197/1 of Lalaguda village. No doubt, Dw.1 marked Ex.B3 the certified copy of TSLR plan of the suit schedule property location and technically denied the facts stated by the plaintiff in their case. At para 9 of his affidavit he made it clear that the land of Ravindera Coop Housing Society Ltd was not acquired and the land 13A.S.No.32/13 acquired for defendant railways is the land adjoining such Housing society Ltd. Inspite of Dw.1 stating that the land claimed by the plaintiff is not part of Ravindera Coop Housing Society land, such fact is not established by any survey report. His version that letter dated 21.9.1960 purportedly addressed by divisional supdt Railways

Secunderabad to the Land acquisition officer could have no bearing on the claim of the plaintiffs is not correct. Such letter marked as Ex.A13 is with the details of the land acquired and left over land in the same survey No. of Lalaguda, the said land is very much corroborating the version of plaintiffs that apart from the acquired land, the original owner held remaining land to pass on the title to the purchasers under him including the plaintiffs. Similarly, the version of Dw.1 that in the letter dated 2.11.1976 from the Land Acquisition Officer to the plaintiff is not concerned for them, is also not sustainable. Such letter being from the office of Land Acquisition Officer who is the statutory authority is binding on all including the defendants. The denial of

Dw.1 that Mohd. Abdul Wahab Khan sold plots 9 and 10 adm.70 sq.

yds and 25 sq. yds respectively adjoining the plots 6 and 7 as false, is also without basis. The contention that no such land existed is not corroborated by any survey report. Further, by relying upon the observations in O.S.No.176/03 in respect of similar plot claimed by the plaintiff therein, Dw.1 marked the certified copy of such judgment from the file of III Senior Civil Judge, City Civil Court, Secunderabad, wherein the claim of third party against the railways is dismissed. But during the course of arguments, the advocate for the 14A.S.No.32/13 appellants/plaintiffs produced the certified copies of the judgment of this court in A.S.No.245/07 dated 10.7.14 wherein the judgment of the trial court in O.S.No.176/03 was set aside and the suit was decreed in favour of plaintiff therein restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property.

13As seen from the evidence of PWs.1 and 2 and the contents of Exs.A1 to A32, on several occasions the plaintiff approached the survey department and the municipal corporation to get his small piece of land surveyed and demarcated and ultimately obtained reports from the Land Acquisition Officer and municipal corporation and the survey department. But without honouring all such efforts of the plaintiff, it cannot be said that the plaintiff ought to have taken some more steps as contended by the defendants in this case. Even if it is assumed that the plaintiff did not take proper steps to demarcate his small piece of land, the defendants being a quasi Government organization, cannot be allowed to object the plaintiff’s claim of possession and enjoyment over the suit schedule portions until they fairly ascertain by way of proper survey reports that the small piece of land claimed by the plaintiff is within the boundaries of land acquired for them by the Government. Similarly, on the ground that the plaintiff failed to take some more steps, there is no justification in the observation of the trial court that the plaintiffs have no right over the extent of land described in plaint A and B schedules and the relief claimed by them will not solve their apprehensions of interference 15A.S.No.32/13 from the defendants. If really there was cloud regarding the title of plaintiffs over A and B schedule properties, the defendant being a quasi government authority could have clarified to dispel such cloud in a fair manner and they are not entitled to take advantage of unresolved cloud to deny the relief claimed by the plaintiff. No doubt, the plaintiff may also seek the remedy by filing a suit for declaration.

But on the ground that there is no suit for declaration, it is not justifiable to deny the relief of injunction simplicitor pending such plea taken by the plaintiff for a declaration. Obviously, in view of immediate threat of interference over the possession of plaintiff, he ought to have approached the court for immediate relief of permanent injunction to safeguard his possession and enjoyment over the suit schedule property reserving the right of the plaintiff to seek subsequent relief of declaration by filing a comprehensive suit. No doubt, the person out of possession cannot seek the relief of injunction simplicitor without claiming the relief of recovery of possession as observed by the trial court. But from the facts of the present case, the defendants utterly failed to discredit or disprove the contention of

PW.1 corroborated by the contents of documents relied upon by him about their possession and enjoyment over the suit schedule portion of survey No.197 of Lalaguda village. Therefore, the proposition that injunction simplicitor without claiming the relief of recovery of possession is not applicable to the facts of the present case. The other proposition where the plaintiff is in possession, but his title to property is in dispute and where the defendants asserts the title thereto, the 16A.S.No.32/13 plaintiff will have to sue for declaration and for consequential relief of injunction, which is the view taken by the trial court is not supported by any authority. The option is for the plaintiff to seek for the reliefs to safeguard his possession and enjoyment in the first instance and if necessary to file a suit for declaration of his title over his property. In fact from the broad view of the case on hand, except the defendants making a claim that the suit schedule property is part of their acquired land did not raise a valid ground to deny the flow of title of the plaintiff. Therefore, if the plaintiff is able to substantiate his contention that the suit A and B schedule properties are not part of the acquired land of the defendants, there is no shadow or cloud sustainable in respect of the title of the plaintiff over A and B schedule properties. While so, the defendant side failed to establish from the land acquisition record or the revenue record or the town survey record that the suit A and B schedule properties are part of their acquired land. Therefore, the defendants failed to establish a valid objection in respect of reliefs claimed by the plaintiffs.

13(a) Therefore, basing upon the evidence of PW.1 and the contents of the documents relied upon by him, it is concluded that the plaintiffs have substantially proved his prima facie title and settled possession and enjoyment over the suit A and B schedule properties and he is entitled for permanent injunction in respect of the suit schedule properties restraining the defendant and their men in any manner from interfering with such possession of the plaintiffs over such suit schedule properties until the defendants establish by proper survey 17A.S.No.32/13 through Deputy Surveyor that the suit schedule property is part of their acquired land.

In the result, the appeal shall be allowed by setting aside the judgment and decree of the trial court in O.S.No.360/2005 dated 17.12.2012 on the file of III Senior Civil Judge, City civil Court,

Secunderabad, and suit is decreed in favour of plaintiffs and against the defendants restraining them from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property until the defendants establish by way of survey through

Dy.Director of Survey and Land records, that the suit land is part of their acquired land.

Dictated to Stenographer, transcribed by her, corrected and

pronounced by me in the open court on this the 29th day of July,

2016.

I Addl. Chief Judge City Civil Court, Secunderabad

APPENDIX OF EVIDENCE : NIL

I Addl. Chief Judge City Civil Court: Secunderabad

1M.VO.P.No.180/14

BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL – CUM -

I ADDITIONAL CHIEF JUDGE: CITY CIVIL COURT: SECUNDERABAD

DATED : THIS THE 29TH DAY OF JUNE, 2016

PRESENT ; SRI VISHNU PRASADA REDDY, B.SC,M.L

I ADDL. CHIEF JUDGE

M.V.O.P.NO.180 OF 2014

Between:

Edigi Sandaiah goud @ Bichala Sandaiah ..Petitioner

And

1.Mr.Md.Iqbal Bagavan 2.M/s Shri Ram General Insurance Co.Ltd

Rep by its Regional Manager Legal cell..Respondents

This petition is coming on this day before me for final hearing in the presence of Sri E.Srinivas Reddy, Advocate for the petitioners and of Sri.S.A.Gani, Advocate for Respondent No.2 and respondent No.1 remained exparte, having stood over till this day for consideration, this court delivered the following :

O R D E R

This is a petition filed U/Sec. 166 of MV Act seeking to award compensation amount of Rs.6.00 lakhs consequent to the injuries sustained by the petitioner in a Motor vehicle road traffic accident occurred on 1.8.2012 at about 12.30 PM near Bharat Petrol

Pump, Tandur, R.R.District, while he was proceeding on a motor cycle bearing No.AP 11N 8823 due to hit by lorry bearing No.AP 28 X 2786 driven in rash and negligent manner by its driver.

(Amended as per orders in I.A.No.1 of 2016 dt.19.1.2016) 2M.VO.P.No.180/14 2 The first respondent is the owner and 2nd respondent is the insurer of the lorry involved in the accident. The first respondent stood exparte and the 2nd respondent filed his counter by mainly contending that the petitioner is called upon to strictly prove the allegation of rash and negligent driving on the part of the driver of the lorry, the driving licence particulars of the lorry driver, the insurance particulars of the lorry, the details of the lorry, the details of the injuries sustained by the injured, the details of the treatment and the alleged partial permanent disability if any. Further, it is contended that

Sec.134© and 138(6) are not followed. Further, it is contended that the accident occurred is due to rash and negligent driving of the motor cycle by the petitioner himself contributing his negligence. Ultimately, it is contended that the claim of the petitioner is highly excessive and the petition is liable to be dismissed.

3Basing on the above pleadings, the following issues are framed for trial :

1. Whether the pleaded accident occurred resulting in injuries to the petitioner i.e. E.Sandaiah Goud @ Bichala Sandaiah due to the rash and negligent driving of the lorry bearing No. AP 28X 2786 by its driver ?

2. Whether the petitioner is entitled to any compensation, and if so, at what quantum and what is the liability of the respondents?

3. To what relief ?

3M.VO.P.No.180/14 4During the enquiry, the injured petitioner himself examined as PW.1 and 2 and marked Exs.A1 to A10. On behalf of respondents

Rw.1 was examined and Ex.B1 document was marked.

5Heard both sides.

6.ISSUE NO.1:

The injured petitioner as PW.1 in his affidavit in lieu of his evidence in chief examination categorically stated that on 1.8.12 at about 12.30 PM while he was proceeding on a motor cycle bearing

NO.AP11N 8823 along with his friend as a pillion rider from MRO office towards Gunthabasupally on the extreme left side of the road with great care and diligence reached near Bharat Petrol Pump, Tandur, suddenly one lorry bearing NO.AP 28X 2786 was driven in rash and negligent manner with high speed and dashed to his motor cycle, as a result of that he fell down on the road and sustained deep lacerated wound on right thigh with subchantric fracture of right femor, fracture of right hip and other multiple injuries all over the body. With such injuries he has been taken to Andhra Pradesh Vaidya Vidhana Parishad at Tandur for treatment and after giving first aid at that hospital he has been shifted to Osmania General Hospital for better treatment and later he has been shifted to Government General and Chest hospital at Hyderabad. On 31.8.12 he was admitted as an inpatient for a surgery for Open reduction internal fixation and insertion of rods done on 6.9.2012 and later discharged on 18.9.12. So far he has incurred 4M.VO.P.No.180/14 medical expenditure of Rs.50,000/-, still treatment is going on with an advise for physiotherapy daily.

6(a)Exs.A1 to A8 are the certified copies of FIR, wound certificate, charge sheet, scene of observation Panchanama, sketch of scene of offence, discharge summary, bunch of medical bills, bunch of prescriptions, bunch of photographs with CD. In the cross examination it is elicited from him that he did not file the driving licence of

Narsimulu who was rider of the motor cycle on which he was a pillion rider by the time of the accident. But he denied the suggestion that the said Narsimulu had no driving icence at all and because of his rash and negligent driving alone the accident occurred. Except the above bald suggestions which are all denied by PW.1, no incriminating material is elicited to doubt the version of PW.1 regarding the manner in which the accident occurred. Neither the driver of the lorry nor any other eye witness is examined to discredit or disprove the version of

PW.1. Therefore, relying upon the evidence of PW.1 corroborated by the contents of Exs.A1 to A8, it is concluded that the accident occurred resulting the injuries on the petitioner is due to rash and negligent driving of the lorry by its driver.

7.ISSUE NO.2:

Except the 2nd respondent examining Rw.1, who is the legal officer of the 2nd respondent, no substantial evidence is produced to prove the specific defence contentions raised in the counter. Rw.1, the legal officer of the 2nd respondent company no doubt in his chief 5M.VO.P.No.180/14 examination categorically stated that Mohd. Ibrahim, the driver of he insured lorry involved in the accident had no driving licence to drive heavy vehicles as on the date of accident, therefore, respondent No.2 insurance company is not liable to pay compensation for violation of the conditions of Ex.B1 policy of the crime vehicle.

8In his cross examination, Rw.1 admitted that as on the date of accident, Ex.B1 policy is in force, covering the risk of third party like petitioner and that in Ex.A3 charge sheet there is no allegation that the driver had no driving licence. The contents of Ex.A3 charge sheet filed by SHO is after thorough investigation of the criminal case as per the statutory authority vested with the SHO, therefore U/sec.114 of

Evidence Act, the contents of Ex.A3 charge sheet filed by statutory authority are entitled for a presumption, until such contents are disproved. As seen from Ex.A3 there is no charge or allegation that the driver of the accident lorry was not holding a driving licence in respect of driving of the accident lorry. In view of such surrounding facts there appears no probability in the version of respondent that

Mohd. Ibrahim had no driving licence to drive the heavy goods vehicle like the lorry. Consequently, respondent No.2 failed to establish his contention that because the holder of Ex.B1 policy of crime vehicle violated the terms of such policy to enable respondent No.2 to deny the reimbursement of compensation. Ultimately, basing on the facts that respondent No.1 is owner and respondent No.2 is insurer of the lorry involved in the accident, it is held that both respondents 1 and 2 are jointly and severally liable to pay compensation to petitioner for 6M.VO.P.No.180/14 the injuries sustained by him in the accident occurred due to rash and negligent driving of the lorry held by respondent NO.1 and insured with respondent No.2.

9Regarding the factors to decide the quantum of compensation payable by respondents 1 and 2 to the petitioner, the version of petitioner that he sustained fractured injuries, and even after the treatment he is suffering with Partial Permanent disability is corroborated by the contents of Ex.A9 and the evidence of PW.2 the medical officer. In his evidence PW.2 stated that he is working as Civil surgeon District Hospital Tandoor and on 14.12.2013 himself,

K.Rajavardhan, RMO and Dr.G.Venkata Ramanappa, the

Superintendent of District Hospital Tandoor examined PW.1 and found that he was suffering with Partial Permanent disability of post Tramatic sequial limbs. Further, PW.2 stated that as per WHO norms adopted by department of welfare, Govt. of A.P, such disability may be recorded as 50%, therefore, he issued Ex.A9 certificate as a member of Medical board constituted with the above said medical officers.

10During the course of interaction by court, PW.2 stated that he has not verified the wound certificate in respect of injuries sustained by PW.1 in a Road Traffic Accident. When further confronted to state the details of limb, among four limbs which is with observation of Tramatic sequial limb. PW.2 openly stated that he did not note the details of the limb which was effected in such a manner as noted in

Ex.A9. Again he said that Right Lower limb alone was effected as 7M.VO.P.No.180/14 noted in Ex.A9. On further confrontation, to state the details of actual functional disability in respect of alleged deformity of Right Lower limb of PW.1 he stated that unless he verify PW.1 and examine him again, he cannot state the details of functional disability regarding the Right

Lower Limb of petitioner. On further confrontation whether he verify atleast the X-ray of hip joint of PW.1, he stated that he do not remember and for the question whether the fracture of hip joint was healed and united or not, PW.2 stated that he do not know. On a specific confrontation whether Ex.A9 is valid to consider any medico legal case, PW.2 stated that Ex.A9 is not valid for consideration in

Medico Legal cases and it was issued for getting pension by PW.1. In the light of the above statement elicited in the cross examination of

PW.2 there is no sanctity to his evidence and the contents of Ex.A9 to conclude that the injured is suffering with Partial Permanent functional disability of 50% as noted in Ex.A9. On the other hand, in the cross examination of PW.1 itself he has categorically admitted that presently he is able to walk normally and he did not get any further treatment.

Therefore, the claim of petitioner that he is entitled for compensation on the ground of Partial Permanent disability as a consequence of the injuries sustained in the accident is not proved.

10(a)Ultimately, the petitioner is entitled for compensation on the ground of reimbursement of medical expenses for the injury sustained and for the loss of earnings during treatment period and rest period and special damages for pain and suffering, extra nourishment and for transport to the hospital and for future treatment.

8M.VO.P.No.180/14 10(b)As far as the medical expenditure for the treatment of the injuries by producing Ex.A6 bunch of bills he could prove expenditure of Rs.3,200/- alone, because the treatment of the injured was at Government hospital itself. Except the expenditure for the medicines not available in the hospital, the other treatment is obviously free of cost. Therefore, the petitioner is entitled for compensation of RS.3,200/- towards medical expenditure. According to the version of PW.1 he joined in the hospital on 1.8.12 and he has been discharged on 18.9.12 after one month 20 days treatment as inpatient consequent to the surgery. Therefore, for such loss of earnings the petitioner may be paid at the rate of Rs.7,500/- per month coming to Rs.12,500/-. Basing on the nature of fractured injuries sustained by the petitioner as noted in the wound certificate, it is quite natural that he could not attend to his normal labour work for a period of 6 months as specifically noted at para 5 of his affidavit.

Therefore, the petitioner may be awarded a sum of Rs.7,500 x 6 =

Rs.45,000/- towards loss of earnings after treatment period. For special damages, on the ground of pain and suffering the petitioner may be awarded a sum of Rs.10,000/-, for extra nourishment, and for attendance charges, the petitioner may be awarded a sum of

Rs.10,000/- under each head, which all coming to a total of

Rs.30,000/-. Thus, in all the petitioner may be awarded compensation amount of Rs.3,200/- + Rs.12,500/- + 45,000/- + 30,000/- =

Rs.90,700/- rounded to Rs.91,000/-.

11.ISSUE NO.3:

9M.VO.P.No.180/14

In the result, the petition shall be allowed partly in favour of petitioner and against the respondents jointly and severally with proportionate costs awarding a sum of Rs.91,000/- payable by respondents. The respondents 1 and 2 shall pay such compensation amount along with interest at the rate of 7.5% p.a. from the date of filing of the petition i.e.26.3.2014 till the date of deposit into the account of this petition and that the respondents shall make such deposit within one month from the date of this order. The petitioner is entitled to withdraw the compensation amount awarded to him. The advocate fee on this petition shall be fixed at Rs.2,000/-

Dictated to Stenographer, transcribed by her, corrected and

pronounced by me in the open court on this the 29th day of June,

2016.

I Addl. Chief Judge City Civil Court, Secunderabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERSFOR RESPONDENTS

PW.1: E.Sandaiah GoudRw.1: P.Ayyappa Kumar

PW.2: Dr.V.Balraju

Exhibits marked for the petitioner

Ex.A1Copy of FIR

Ex.A2Copy of wound certificate

Ex.A3CC of charge sheet

Ex.A4CC of scene of observation Panchanama along with rough sketch of scene of offence

Ex.A5Original discharge summary

Ex.A6Original Bunch of hospital and medical bills

Ex.A7Original prescription 10M.VO.P.No.180/14

Ex.A8Original photographs

Ex.A9Original disability certificate

Ex.A10Copy of insurance policy

Exhibits marked for respondent

Ex.B1Policy of crime vehicle

I ADDL. CHIEF JUDGE

CITY CIVIL COURT: SECUNDERABAD

1A.S.No.76/14

IN THE COURT OF THE I ADDITIONAL CHIEF JUDGE: CITY CIVIL

COURT: SECUNDERABAD

DATED : THIS THE 29TH DAY OF JUNE, 2016

PRESENT ; SRI D.VISHNU PRASADA REDDY, B.SC,M.L

I ADDL. CHIEF JUDGE

A.S.NO.76 OF 2014

Between:

K.Ravinder, s/o.Jagan Mohan..Appellant/Plaintiff

And

The Cantonment Board

Rep by its Executive Officer..Respondent/defendant

Appeal preferred against the Judgment and decree vide

O.S.No.1719 of 2004, dated 2.12.2010 on the file of XI Junior Civil

Judge, City Civil Court, Secunderabad

O.S.NO.1719 OF 2004

K.Ravinder, s/o.Jagan Mohan..Plaintiff

And

The Cantonment Board

Rep by its Executive Officer ..Defendant

This appeal is coming on this day before me for final hearing in the presence of Sri M.S.N.Prasad, Advocate for the appellant and of Sri Deepak Bhattacharjee, Advocate for the respondent, having stood over till this day for consideration, this court delivered the following :

JUDGMENT

This is an appeal filed U/O.41 R.1 CPC seeking to set aside the judgment and decree dated 2.12.2010 in O.S.1719/2004 on the file of

XI Junior Civil Judge, City Civil Court, Secunderabad.

2The appellant herein is the plaintiff and the respondent herein is the defendant in the proceedings of the suit before the trial court and they are referred as such, hereinafter for the purpose of convenience.

3 The appellant/plaintiff filed the suit seeking the relief of perpetual injunction to retrain the respondent/defendant from demolishing the structures at the suit schedule property and to declare the final notice dated 6.11.2014 as null and void.

4The brief facts of the case of the plaintiff are that himself and his wife are the absolute owners of plot No.1 in Survey No.108 adm.266.66 sq. yds at Thokatta Village, Bowenpally, Secunderabad, under registered sale deed dated 5.6.02. The plaintiff with a view to construct the building in the aforesaid plot applied for sanction of plan and the defendant vide resolution NO.2 (5-19) dated 5.10.02 communicated about the sanction of proposed plan for construction of ground floor in the above said plot. Besides that the plaintiff has also obtained clearance from the Airport authority by way of proceedings

dated 13.10.03 for the above said construction. Accordingly, the

plaintiff commenced the construction of the building and the defendant vide resolution No.5(8) dated 6.5.04 has communicated about the sanction for construction of first floor of the building of the suit schedule property. There upon the plaintiff constructed ground plus first floor of the building without any violation. Because the material procured for such construction was still left over, he has constructed 3A.S.No.76/14 few more structures as second floor of the said building. Such

additional construction was made within the parameters and guidelines

of Cantonment board increasing the existing FSI from 0.5 to 1.5 and the plaintiff initiated proceedings for regularization of construction of the above said second floor of the building also by submitting necessary plans. While so, the plaintiff received notice dated 26.7.04 on the ground that he commenced the construction of second floor contrary to the sanctioned plan upto first floor. By the time the second floor is already completed and the said notice is without verifying such fact properly. After receiving such notice, the plaintiff sent his reply on 16.8.04 by specifically stating that the construction of 2nd floor is neither causing any obstruction to the neighbours nor endangering the general public and further requested the defendant to regularize the same. Later, to the surprise of the plaintiff another notice dated 6.11.04 purported to have been issued U/sec.185 of Cantonment Act was received with a demand against the plaintiff that the alleged deviations in 2nd floor shall be removed within a period of 30 days from the receipt of the said notice. Such action of the defendant without considering the application for regularization and without giving an opportunity for being heard personally the plaintiff, is arbitrary, illegal, and unjust. Hence, the present suit is filed to restrain the respondent form demolishing the structures of the plaint schedule house property and to declare the notice issued as null and void.

5The defendant in the written statement admitted about the sanction granted in favour of appellant/plaintiff to construct upto first floor of the suit schedule property. But it is further stated that on 13.7.04 the defendant received the report of the supervising staff to the effect that the plaintiff made unauthorized construction by deviating the sanction plan as on the date of inspection 25 Nos of 9’ x 12’ x 9’.3” size pillars were raised and RCC slab of 75’ x 36’.6” sq.ft was laid in the first floor and similar pillars with similar slab was constructed in the 2nd floor. Whereas the permission is granted only for the construction of first floor alone. After receiving such report, preliminary show cause notice was issued on 26.7.04 providing for hearing of the plaintiff. Inspite of such notice, the petitioner proceeded with the construction, therefore, the cantonment board unilaterally resolved on 14.9.04 to proceed against the petitioner for unauthorized construction. Therefore, the notice dated 6.11.2004 was issued. Ultimately, it is stated that the petitioner approached the court with unclean hands and undisputedly violation of the rules for making construction with prior sanction plan. The first floor of the building of the plaintiff itself is unauthorized and the plaintiff did not leave the required set backs and open space and the construction made by him is in excess of permissible FSI of 0.5. If the relief prayed by the plaintiff is granted, the cantonment board will be prevented from exercising their official duties and obligations. Therefore, the suit may be dismissed.

6Basing on the above said rival pleadings of both sides, the following issues are framed:

5A.S.No.76/14

1. Whether the plaintiff is entitled to seek the relief of declaration as prayed for ?

2. Whether the plaintiff is entitled to seek the relief of perpetual injunction as prayed for ?

3. Whether the suit is bad in law for want of notice U/sec.273 of Cantonment Act ?

4. To what relief ?

7During the trial, in support of the case of plaintiff, PW.1 was examined and Exs.A1 to A4 were marked. On behalf of defendant

Dw.1 was examined and no documents were marked. After considering the evidence and material on record, the trial court dismissed the suit.

8Aggrieved by the said judgment and decree of the trial court, the present appeal is filed by mainly contending that the lower court ought to have considered the observations of the apex court to the effect that “administratively also demolition of large number of cases are neither feasible nor desirable, as it will result in undue hardship to the owners and the occupants.” Secondly, it is contended that the lower court ought to have considered that there is prima facie case and balance of convenience in favour of appellant/plaintiff for granting equitable relief of injunction. Thirdly, it is contended that the lower court ought to have seen that there is a proviso U/sec.248(a) of

Cantonment Act to the effect that instead of requiring the alteration or demolition of any such building or part thereof, accept by way of composition of such sum as it thinks reasonable. Hence, the lower court instead of dismissing the suit ought to have directed the cantonment board to consider the regularization of the building portion by levying fees. Ultimately, it is contended that the judgment and decree of the trial court dismissing the suit may be set aside and the suit may be decreed as prayed for.

9On 22.4.2016 the contention of the appellant side were heard. There was no represent for the respondent, therefore, a fresh opportunity was given by postponing the case to 2.6.16 to post it for judgment on merits. Ultimately, on 2.6.16 also there was no representation for the respondent, therefore, the appeal is posted for judgment on merits.

10. Now the point for consideration is :

Whether the appellant has established substantial grounds to set aside the judgment and decree dated 2.12.2010 in

O.S.1719/2004 on the file of XI Junior Civil Judge, City Civil

Court, Secunderabad or not?

11.POINT :

From the evidence of PW.1 and the contents of Exs.A1 toA4 and the evidence of Dw.1 Phani Kumar examined on behalf of respondent Cantonment board, the undisputed facts of the case are that basing on Exs.A1 and A3, the notice was issued by defendant against the plaintiff. The appellant/plaintiff is called upon to remove the constructed portion in the first floor to the extent (1) RCC columns of size 24 Nos. 9” x 1” x 9”.3’ , RCC slab of size 75’ x 36’.6”, second floor of columns 25 Nos. 9” x 1” x 9”.3’ RCC slab 62’ x 36’6” 7A.S.No.76/14 12Even though the appellant/plaintiff contended that the defendant vide resolution NO.5(8) dated 6.5.04 has communicated the sanction for construction of first floor also, there is no resolution sanctioning construction of first floor of the suit schedule house, marked in evidence on behalf of appellant/plaintiff. Undisputedly, there is no sanction to construct second floor, as such, the construction of 2nd floor is nothing but unauthorized construction. In respect of alleged unauthorized construction in first and second floor of the suit schedule building, the defendant cantonment board has statutory authority U/sec.185 of Cantonment Act to call upon the plaintiff who is responsible for such construction to show cause and accordingly Ex.A1 notice was issued and Ex.A2 is the reply of the plaintiff. He admitted in Ex.A2 that a portion of the construction at the suit schedule premises is without obtaining prior sanction of the plan and he further requested to regularise such construction made without approved plan.

The grievances of the appellant/plaintiff is that inspite of his request to regularize the unauthorized construction portion of the suit schedule property, the respondent/defendant did not comply with the proviso

U/sec.248 of the Cantonment Act.

13While so, the respondent also did not produce any document to show about the compliance of the proviso of Sec.248 of

Act regarding the consideration of request of the plaintiff for regularization of the unauthorisedly constructed portion of the building. When the plaintiff himself admitted about the fact that certain portions of the building at the suit schedule property were unauthorized, in violation of the sanction plan, there is no significance to refer to the evidence of Dw.1, who stated that at the time of inspection Dw.1 found deviation regarding the construction at the suit schedule premises. Simply, on the ground that the defendant

Cantonment board did not consider the representation for regularization of unauthorizedly constructed building, it cannot be said that notice issued U/sec.185 of the Act is invalid in the eye of law and such omission of considering the regularization of the building may render the proposed action of demolition of unauthorisedly constructed portions as ultra virus of the procedure contemplated U/sec.248 of the

Cantonment Act.

13(a)It is apparent from the evidence and material on record that neither the respondent cantonment board nor the trial court considered the observations of the apex court “administratively also demolition of large number of cases are neither feasible nor desirable, as it will result in undue hardship to the owners and the occupants.” Similarly, neither the respondent cantonment board nor the trial court failed to consider the proviso U/sec. 248 of the

Cantonment Act which contemplates that instead of requiring the alteration or demolition of any such building or part thereof acceptance by way of composition of such sum as it thinks reasonable, for regularizing the unauthorisedly constructed portion of the building is not properly appreciated and instead the suit is dismissed. Therefore, the proposed action of demolition of the suit schedule building without complying the statutory requirement under the provisions of Sec.248 9A.S.No.76/14 of the Cantonment Act is ultra virus of the statutory powers of the defendant. The lower court while dismissing the suit on the ground that injunction is not maintainable against the defendant who is vested with statutory powers to deal with unauthorized constructions ought to have directed the cantonment board to consider the regularization of the building by levying fee. Therefore, the appellant has established substantial grounds to set aside the decree and judgment of the trial court and to pass a modified decree and judgment to the effect that the respondent/defendant shall be restrained from demolishing the portions of the suit schedule building until the respondent considers the application of the appellant for regularization of the portions constructed in excess of the approved plan at the suit schedule property and that the petitioner shall put up his application for regularization of such portions within one month from the date of this judgment even if he applied earlier which was ignored by the respondent.

In the result, the appeal shall be allowed. The judgment and decree in O.S.No.1719/04 dated 2.12.2010 on the file of XI Junior Civil

Judge, City Civil Court, Secunderabad, shall be set aside and a

modified decree shall be passed in favour of appellant/plaintiff and against the respondent/defendant restraining the respondent from demolishing the portions of the suit schedule building until the respondent considers the application of the appellant for regularization of the portions constructed in excess of the approved plan at the suit schedule property and that the appellant/plaintiff shall put up his application for regularization of such portions within one month from the date of this judgment even if he applied earlier which was ignored by the respondent.

Dictated to Stenographer, transcribed by her, corrected and

pronounced by me in the open court on this the 29th day of June ,

2016.

I Addl. Chief Judge City Civil Court, Secunderabad

APPENDIX OF EVIDENCE : NIL

I Addl. Chief Judge City Civil Court: Secunderabad

1A.S.No.85/13

IN THE COURT OF THE I ADDITIONAL CHIEF JUDGE: CITY CIVIL

COURT: SECUNDERABAD

DATED : THIS THE 25TH DAY OF JULY, 2016

PRESENT ; SRI D.VISHNU PRASADA REDDY, B.SC,M.L

I ADDL. CHIEF JUDGE

A.S.NO.85 OF 2013

Between:

K.Samuel..Appellant

And

Property Association of Baptist Churches Pvt. Ltd

Rep by its self styled Executive Director G.D.D.Diwakar ..Respondent

Appeal preferred against the Judgment and decree vide

O.S.No.585 of 2011, dated 22.8.2013 of the I Junior Civil Judge, City

Civil Court, Secunderabad

O.S.NO.585 OF 2011

Between :

K.Samuel..Appellant

And

Property Association of Baptist Churches Pvt. Ltd

Rep by its self styled Executive Director G.D.D.Diwakar ..Respondent

This appeal is coming on this day before me for final hearing in the presence of Sri P.Ramchander, Advocate for the appellant and respondent remained exparte, having stood over till this day for consideration, this court delivered the following :

JUDGMENT

This is an appeal filed U/O.41 R.1, R/w.Sec.96 CPC seeking to set aside the judgment and decree dated 22.8.2013 in O.S.585/2011 on the file of I Junior Civil Judge, City Civil Court, Secunderabad.

2A.S.No.85/13 2The appellant herein is the plaintiff and the respondent herein is the defendant in the proceedings of the suit before the trial court and they are referred as such, hereinafter for the purpose of convenience.

3The appellant/plaintiff filed the suit seeking the relief of perpetual injunction to restrain the respondents/defendants from interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule property.

4The case of the appellant/plaintiff is that his father was in long occupation of the suit schedule property as a tenant and after the demise of his father the plaintiff continued such possession and enjoyment over the suit schedule property for the past 63 years without any hindrance and disturbance. While so, the 2nd defendant in the self styled capacity as Executive Director of the first defendant started to sell away some of the properties to the first defendant. The

Managing Director of the first defendant constituted a sub committee to sell the properties of the first defendant to the respective tenants in occupation at the rate of Rs.30 per sq. mts and a resolution was also passed to that effect. In fact the Sub committee collected Rs.5,000/- from each tenant including the plaintiff. Inspite of such events, the first defendant and its committee did not come forward to execute the registered sale deed in favour of plaintiff for the suit schedule property in his occupation on the guise that there were disputes between private parties and the sub committee. Justice K.Punaiah 3A.S.No.85/13 retired Judge of A.P.High Court has been appointed as a Arbitrator to resolve such disputes and ultimately, he passed order dated 17.7.91 to sell away the respective portions to the occupants. But the defendants did not come forward to follow such directions. The 2nd defendant threatened the plaintiff to vacate the suit schedule property stating that he is selling the property to third parties. The Honourable High

Court of Madras in OSA No.69/99 directed the 2nd defendant not to sell any of the properties until CS No.124/1994 is disposed of. Inspite of knowledge of such orders some of the properties at Secunderabad including the suit schedule property was made subject matter of an agreement of sale and collusive suits in O.S.No.60/2000, 36/2003, 121 and 127/2006 are filed on the file of this court and by way of decrees in such collusive suits, the sale deeds were got executed through the court. In view of such sale deeds, contempt petitions in petition No.

534 to 536 of 2007 are filed on the file of High Court of A.P and orders

dated 11.6.2007 were obtained restraining the 2nd defendant herein

from interfering with the possession or alienating the properties.

While so, on 20.8.09 the 2nd defendant along with his associates trespassed into the suit schedule property. There upon, the plaintiff herein gave a police complaint at PS Gopalapuram and on their advise approached this court by filing the present suit.

5In the written statement of the defendant their contention is that they have sold the suit schedule property by registered sale deed

dated 4.8.08, thereafter the vendees in the said sale deeds took

possession of the property and demolished the structures and made it 4A.S.No.85/13 as open plot in order to make reconstructions, therefore, filing of the present suit is nothing but blackmailing the defendants in order to extract money. The plaintiff himself admitted about his removal from the possession and demolition of the house structure. Hence, the question of granting perpetual injunction does not arise. The suit schedule property was disposed of in the year 1996 to one 0M.Kumara

Swamy and the sale deed was executed in favour of his nominees i.e.

Shilpa Shelters Ltd, represented by its Director A.Diwakar Reddy, Veda constructions Ltd represented by P.Srinivas, Ramya constructions Ltd represented by A.Sanjeeva. The vendees of defendant No.1 are in exclusive possession and enjoyment of the suit schedule property as absolute owners. Hence, the suit is liable to be dismissed.

6 Basing on the above pleadings, and upon hearing, the following issues are framed for trial.

1. Whether the plaintiff is entitled for a perpetual injunction as prayed for ?

2. To what relief ?

7During the trial in support of the case of the plaintiff PW.1 was examined and Exs.A1 to A15 documents were marked, whereas on behalf of defendant, Dw.1 was examined and Exs.B1 and B2 documents were marked. After considering the evidence and material available on record, the trial court dismissed the suit. Aggrieved by the said judgment and decree of the trial court, the present appeal is filed by mainly pleading in the grounds of appeal as follows:

5A.S.No.85/13 •The judgment and decree of the trial court is contrary to law, weight of evidence and probabilities of the case.

•The trial court should have noted that, the plaintiff is in possession of the suit property even after illegal acts of demolition by the defendants.

•The trial court erred in observing that the plaintiff is not in possession of the suit property, after illegal acts of demolition by the defendants.

•The trial court erred in observing that the appellant ought to have filed suit for recovery of possession, instead of present suit for simplicitor injunction.

•The trial court failed to note the fact that, there was interim injunction orders were subsisting in favour of the appellant till the disposal of the suit.

•The trial court failed to properly appreciate the evidence and pleadings of the plaintiff while passing the judgment.

8During the proceedings of the appeal, the respondent/defendant stood exparte , the advocate for the appellant filed written arguments along with memo of citations.

9.Heard.

10Now the point for consideration is :

Whether the appellant has established substantial grounds to set aside the judgment and decree of the trial court in O.S.585/2011 6A.S.No.85/13

dated 22.8.2013 On the file of I Junior Civil Judge, CCC,

Secunderabad, and to pass the decree as prayed for or not ?

11.POINT :

From the undisputed facts of the case, the appellant was in possession and enjoyment of the suit schedule property in the status of tenant as a continuing tenant after demise of his father who was the original tenant. While the things stood thus, regarding the conflict about the disposal of the properties there are earlier proceedings

before the High Court of Madras vide CS No.124/94. According to the

appellant/plaintiff, but no copy of such proceedings are produced on behalf of appellant/plaintiff. However, as seen from the documents marked as Exs.A1 to A15 they are pertaining to the period mostly from

January 2010 to July 2011 by which year the suit is filed and they are pertaining to electricity bill payment, water bills, Voter I.D.Cards, photographs with CD which are corroborating the version of appellant/plaintiff that he was in possession and enjoyment of the suit schedule property. By asserting the contents of Exs.A1 to A15, the appellant/plaintiff himself as PW.1 categorically stated that he was in possession and enjoyment of the suit schedule property until the structure therein is high handedly demolished at the instance of the defendants.

12In the cross examination of PW.1 at 20th line of Page 3 it is suggested that the defendants approached the plaintiffs and the matter was settled between them and the defendants himself handed over the possession of the suit schedule property to the defendants 7A.S.No.85/13 and in turn they handed over the same to the vendees, impliedly from the above said suggestion much of the facts of the plaintiff’s case is undisputed. The contention of the appellant/plaintiff that he was tenant in the structure at the suit schedule premises is an undisputed fact. Because the defendants suggested to PW.1 about delivery of possession under a settlement which is denied by PW.1. The burden casts upon the respondent/defendant to prove about the delivery of possession by the plaintiff to the defendant in respect of the suit schedule property. But the defendants could not establish the details of the alleged settlement under which the possession is specifically delivered to the defendants by the plaintiff to enable them to handover such possession to their vendees. In the light of the above omission of the respondent/defendant there is probability in the case of the plaintiff that the defendant along with their vendees high handedly demolished the structures in the suit schedule property. Because the defendants by way of above referred suggestions impliedly admitted about the earlier possession of the plaintiff over the suit schedule property, there is corroboration to the case of the plaintiff that he was in possession and enjoyment of the suit schedule property in the status of a tenant besides the facts proved by his evidence and by marking Exs.A1 to A15.

13With the above facts of the case, the observations of their lordships of Supreme Court of India in AIR 2014 SC page 2895 between M/s Shaha Ratansi Khimji & Sons v. PKumbhar Sons Hotel

P.Ltd, is very much relevant. By referring to Sec.108 (e), 111 their 8A.S.No.85/13 lordships of Supreme Court of India in the above referred case observed that demolition of house/building constructed on lease-hold property does not determine the tenancy right of occupant, therefore, the tenancy of appellant cannot be said to have been determined consequent upon the demolition and destruction of the tenanted premises.

14But by referring to the facts elicited from PW.1 about the 2nd defendant and his followers trespassing into the suit schedule property demolishing the structures and about the plaintiff visiting the P.S at

Gopalapuram to lodge a complaint, the trial court observed that the scope of the present suit is not to determine the title of the properties and in view of the admission of PW.1 that the suit schedule property was demolished and the suit being not for the relief of recovery of possession, it is established that as on the date of filing of the suit the plaintiff is not in possession of the suit schedule property and he lost possession over the suit schedule property prior to filing of the suit, for that the plaintiff ought to have filed a suit for recovery of possession instead of the present suit for the relief of permanent injunction.

15It appears that the trail court failed to consider the maintainability of the suit for the relief of permanent injunction in respect of open plot after demolition of the structures, by considering the observation of the apex court in the above referred citation in view of continuation of tenancy rights of the plaintiff over such open plot also. Simply on the ground that the structure under the occupation of 9A.S.No.85/13 the tenant was demolished, it cannot be said that the tenancy was terminated and the tenant lost tenancy right over open plot after demolition. Unless the defendants establishes that they have recovered the possession of the open plot or the premises with demolished structure under due process of law by terminating the tenancy, the friction rests with the appellant/plaintiff that he is continuing his possession and enjoyment over the open plot even after the demolition of the structure therein. In that view of the matter the appellant/plaintiff duly established his case for granting permanent injunction as prayed for.

In the result, the appeal shall be allowed. The judgment and decree in O.S.No.585/2011 dated 22.8.2013 on the file of I Junior

Civil Judge, City Civil Court, Secunderabad, shall be set aside and that

the suit shall be decreed granting permanent injunction in favour of plaintiff and against the defendants restraining the defendants, their men, henchmen, etc, from interfering with the peaceful possession of the suit schedule property. Each party do bear their own costs.

Dictated to Stenographer, transcribed by her, corrected and

pronounced by me in the open court on this the 25th day of July,

2016.

I Addl. Chief Judge City Civil Court, Secunderabad

APPENDIX OF EVIDENCE : NIL

I Addl. Chief Judge City Civil Court: Secunderabad 10A.S.No.85/13