G.Bhupal Reddy

1. A.S.No.63 of 2015.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE: KURNOOL AT

ADONI.

PRESENT: SRI. G. BHUPAL REDDY, VII ADDITIONAL DISTRICT JUDGE,

KURNOOL, F.A.C., II ADDITIONAL DISTRICT JUDGE, KURNOOL AT

ADONI.

FRIDAY, THE 30th DAY OF SEPTEMBER, 2022.

APPEAL SUIT NO.63 OF 2015.

1. C.R. Suguna Goud died by L.Rs.

2. C.R. Venkatesh Goud.

3. Smt. Ramalingamma.

4. Smt. Gangamma.

5. Smt. C.R. Girijamma.

6. C.R. Ramesh.

7. C.R. Suresh.

8. Smt. C.R. Jayamma. … Appellants.

Versus.

1. Smt. Nagamma.

2. Smt. Shanthamma.

3. The Manager, K.D.C.C. Bank Limited, Adoni.

4. The General Manager, K.D.C.C. Bank Limited, Kurnool.

5. Chagi Huligappa.

6. Chagi Ramayya. … Respondents.

Appeal against the Judgment and Decree Dt.12-03-2014 passed by

Learned Senior Civil Judge, Adoni, in O. S. No.113/2008.

Between:

1. C.R. Suguna Goud died by L.Rs.

2. C.R. Venkatesh Goud.

3. Smt. Ramalingamma.

4. Smt. Gangamma.

5. Smt. C.R. Girijamma.

6. C.R. Ramesh.

7. C.R. Suresh.

8. Smt. C.R. Jayamma. … Plaintiffs.

And

1. Smt. Nagamma.

2. Smt. Shanthamma.

3. The Manager, K.D.C.C. Bank Limited, Adoni.

4. The General Manager, K.D.C.C. Bank Limited, Kurnool.

2. A.S.No.63 of 2015.

5. Chagi Huligappa.

6. Chagi Ramayya. … Defendants.

This Appeal came up before me on 02-09-2022 for a final hearing in the presence of Sri. G.C. Ranganna, Advocate for the Appellants and of Sri.

B. Purushothama Reddy, Advocate for the 3 rd respondent, Sri. K. Hanumesh,

Advocate for respondents 5 and 6 and the respondents 1 and 4 having remained exparte and after hearing both sides, having stood over for consideration till this day this Court delivered the following:

: J U D G M E N T :

This appeal has been filed by the appellants who are the plaintiffs in

O.S. No.113/2008, on the file of Senior Civil Judge Court, Adoni, assailing

the Judgment and Decree dated 12-03-2014, wherein the learned Senior

Civil Judge, Adoni, (hereinafter referred to as ‘the trial Court’) dismissed the

suit of the plaintiffs filed for declaration of right and title and for recovery of possession etc.,.

2. The parties herein, will be, hereafter referred to as arrayed before the trial Court for the sake of convenience and to avoid confusion.

3. It is stated in the memorandum of grounds of appeal that the

Judgment and Decree of the trial Court is against law, weight of evidence and probabilities of the case. The trial Court erroneously disbelieved Ex.A1 to Ex.A6. The trial Court did not properly appreciate the evidence on record.

The trial Court did not assign proper reasons for dismissal of the suit. The trial Court decided the suit one sided and did not consider the facts admitted by the defendants. The discussion of the trial Court is perfunctory and does not satisfy the judicial norms. The trial Court made unnecessary observations without any basis. The trial Court wrongly came to the conclusion that the plaintiffs are not entitled for the reliefs sought for.

3. A.S.No.63 of 2015.

Finally, the plaintiffs prayed to set aside the Judgment and Decree of the trial Court by allowing this appeal and to decree the suit in O.S.No.113/2008 on the file of Senior Civil Judge Court, Adoni, as prayed for.

4. The contents of the plaint, in brief, are:

The plaintiffs are the absolute owners of the plaint schedule property having succeeded the same from their father C.R. Sivalinganna Goud. The said Sivalinganna Goud purchased the suit schedule property and some other properties under a registered sale deed dated 08-01-1971 from one B.

Ravindra Reddy. Since the date of purchase, the said Sivalinganna Goud was in possession and enjoyment of the plaint schedule property along with other properties. Sivalinganna Goud died in the year 1991. The plaintiffs lost the original registered sale deed and copy of registered sale deed is filed. After the death of Sivalinganna Goud, the plaintiffs who are his legal heirs succeeded the plaint schedule property. The plaintiffs are in possession and enjoyment of the plaint schedule property by leasing out the same (Koru Basis) to various tenant-farmers in the village. Sivalinganna

Goud during his lifetime sold an extent of Ac.3.16 cents in Sy.No.221/A/1, out of Ac.6.33 cents, to one Chinna Thimmaiah on 30-07-1971. Out of the land purchased from Ravindra Reddy, an extent of Ac.0.80cents in

Sy.No.213/B1 had gone in land ceiling in the year 1991 and the plaintiffs received compensation for the said land from the Revenue Department. The said Ravindra Reddy, by taking undue advantage of the revenue records, obtained loan by mortgaging the plaint schedule property subsequent to the sale of the same to Sivalinganna Goud. The defendants 3 and 4 i.e., The

Kurnool District Central Co-operative Bank Limited, (in short K.D.C.C.Bank) without proper verification of encumbrance certificate etc., put the said land for auction and finally the said bank itself purchased the same. The

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defendants 1 and 2 and K.D.C.C. Bank authorities colluded with each other and claimed the suit schedule property and filed O.S.No.250/1999 on the file of Principal Junior Civil Judge Court, Adoni, with a prayer for re-conveyance of the land from the defendants 3 and 4. After full-fledged trial, the said suit was decreed. The plaintiffs are not parties to the said suit. Basing on the

Judgment and Decree in O.S.No.250/1999, the defendants 3 and 4 herein executed a re-conveyance deed in favour of the 1st defendant herein on 09- 05-2003. The defendants 1 to 4 are well aware of the fraud played by the said Ravindra Reddy. The 3rd defendant simply executed the re-conveyance deed in favour of the 1st defendant to wash out their (KDCC bank authorities) hands. The said re-conveyance deed is not binding on the plaintiffs. The 1st defendant sold the plaint schedule property to the defendants 5 and 6 on 23-05-2003 for Rs.2,35,000/-. After the death of

Sivalinganna Goud, the 1st defendant had taken responsibility of the suit schedule property and cultivating the same and maintaining the same on behalf of other plaintiffs. The 1st plaintiff became old and due to sickness, she was unable to maintain the fields for 2 years and leased out the same to some tenant-farmers. In the month of May, 2008, the 1st plaintiff went to

Chudi Village to see the plaint schedule property and when the plaintiffs 1 and 2 reached the plaint schedule property, for fixing Koru rates of the lands leased, then the defendants 5 and 6 objected stating that they purchased the suit schedule property under a registered sale deed dated 23-05-2003.

The plaintiffs obtained the copy of Judgment and Decree in O.S.No.250/1999 and other connected matters. On 20-07-2008, the plaintiffs demanded the defendants 5 and 6 to vacate the plaint schedule property, but the defendants bluntly refused to vacate the same. Hence, the plaintiffs are constrained to file the suit for declaration and for recovery of possession.

5. A.S.No.63 of 2015.

5. The 1st defendant filed written statement. The defendants 5 and 6 adopted the same by way of adoption memo. In the written statement of the 1st defendant, the contents of the plaint are denied para-wise. It is further stated that there was no cause of action for the suit. The Court fee paid by the plaintiffs is not correct. The suit is barred by limitation. The dispute was already decided by the Principal Junior Civil Judge Court, Adoni, in O.S.No.250/1999. Hence, doctrine of resjudicata is applicable. The 1st defendant filed a suit in O.S.No.250/1999 on the file of Principal Junior Civil

Judge Court, Adoni, against the defendants 2 to 4 herein to declare the 1st

defendant`s right to get re-conveyance deed from the 2nd defendant. The said suit was decreed in favour of the 1st defendant herein and accordingly, a deed of re-conveyance was executed in favour of the 1st defendant herein on 09-05-2003. Since then, the 1st defendant had been in possession and enjoyment of the same and thereafter, she sold the same to the defendants 5 and 6 under a registered sale deed dated 23-05-2003. Since then, the defendants 5 and 6 are in possession and enjoyment of the suit schedule property without interruption from anybody. The plaintiffs have no right or title whatsoever. The plaintiffs have not taken any steps against the

Judgment and Decree in O.S.No.250/1999. The plaintiffs suppressed all the material facts and filed this suit. Finally, the defendants 1, 5 and 6 pray to dismiss the suit.

6. The 3rd defendant filed written statement and the same was adopted by 4th defendant by way of adoption memo. In the written statement of 3rd defendant, the material averments mentioned in the plaint are denied. It is further stated that the K.D.C.C. Bank had acted legally as per the procedure established under law. The K.D.C.C. Bank brought the mortgaged property for auction and obtained a sale deed. It is further

6. A.S.No.63 of 2015.

stated that there is no cause of action to file the suit by the plaintiffs and the suit is barred by limitation. Finally, the defendants 3 and 4 pray for dismissal of the suit.

7. Basing on the above pleadings of the parties, the following issues were framed in the trial Court:

1) Whether the plaintiffs are entitled to declaration of their title over the suit schedule property and for delivery of possession?

2) Whether the suit was barred by principles of resjudicata?

3) To what relief?

8. Before the trial Court on behalf of the plaintiffs’ chief affidavits of 5 witnesses were filed. The 1st plaintiff filed the chief-examination affidavit as

PW1, but after filing the same, he passed away. Thereafter, it appears that the plaint had been amended by adding the L.Rs. of the 1st plaintiff as plaintiffs 5 to 8. Since the 1st plaintiff died, the chief-examination affidavit of

PW2 was filed on behalf of the plaintiffs. Two other persons also filed chief- examination affidavits as PW3 and PW4, but, they did not come to the witness box and finally their chief-examination affidavits are eschewed. The chief-examination affidavit of one Boya Hanumanthu was filed as PW5.

Thus, only 2 witnesses are examined on behalf of the plaintiffs i.e., PW2 and

PW5. Ex.A1 to Ex.A6 were marked on behalf of the plaintiffs. The 1st defendant examined herself as DW1, but, no documents were marked on behalf of the defendants.

9. The trial Court having considering the oral and documentary evidence adduced before it, dismissed the suit of the plaintiffs.

10. No witnesses are examined and no documents are filed on either side before this appellate Court.

7. A.S.No.63 of 2015.

11. Now, the points for determination are:

1. Whether the finding of the trial Court that ‘the plaintiffs are not entitled for declaration of right and title and for delivery of possession’ is tenable?

2. Whether the Judgment of the trial Court needs any interference by the appellate Court, if so, to what extent?

POINT No.1: (Whether the finding of the trial Court that ‘the plaintiffs are not entitled for declaration of right and title and for delivery of possession’ is tenable?)

12. Originally 4 plaintiffs filed the suit. After the death of the 1st plaintiff, the plaintiffs 5 to 8 were added as L.Rs of the 1st plaintiff. The case of the plaintiffs is that Sivalinganna Goud purchased the suit schedule property and some other properties from one Ravindra Reddy under a registered sale deed dated 08-01-1971, but, the said Ravindra Reddy mortgaged the suit schedule property to K.D.C.C. Bank, subsequent to the sale deed of Sivalinganna Goud i.e., subsequent to 08-01-1971. The plaintiffs also pleaded that Sivalinganna Goud sold some portion of the land out of the land purchased from Ravindra Reddy to one Chinna Thimmaiah under a registered sale deed dated 13-07-1971. Thus, according to the plaintiffs, Sivalinganna Goud having purchased the plaint schedule property under the registered sale deed became the absolute owner of the same.

However, the said Ravindra Reddy taking undue advantage of entries in the revenue records, mortgaged the plaint schedule property to K.D.C.C. Bank, without knowledge of Sivalinganna Goud and the plaintiffs.

8. A.S.No.63 of 2015.

13. The contention of the defendants is that Ravindra Reddy mortgaged the plaint schedule property prior to 08-01-1971 and when

Ravindra Reddy failed to discharge the loan, the K.D.C.C. Bank authorities initiated legal proceedings and put the mortgaged property under auction and since no bidders came forward, the Bank itself purchased the property.

14. It is the contention of the 1st defendant that she, being the sister of Ravindra Reddy, discharged the entire loan with interest and requested the K.D.C.C. Bank authorities to re-convey the land to her and when the

Bank authorities did not respond, she filed a suit in O.S.No.250/1999 and obtained decree and thereafter the 3rd defendant executed re-conveyance deed in favour of the 1st defendant. It is further the contention of the defendants 1, 5 and 6 that the 1st defendant sold the plaint schedule property to the defendants 5 and 6 under a registered sale deed dated 23- 05-2003.

15. Therefore, the core dispute is whether Ravindra Reddy mortgaged

the suit schedule property prior to the alleged sale in favour of Sivalinganna

Goud or subsequent to the said sale. Since, the plaintiffs filed the suit seeking the relief of declaration over the plaint schedule property, it is for them to prove that Ravindra Reddy mortgaged the plaint schedule property subsequent to the sale of the same to Sivalinganna Goud. Thus, the burden heavily lies on the plaintiffs to establish the said fact.

16. Sec.48 of the Transfer of Property Act deals with priority of rights created by transfer. According to the said section, each later created transfer shall be subject to right of previously created transfer. Transfer of property deals with five types of transfers 1) sale, 2) mortgage, 3) lease 4)

Gift and 5) exchange. Therefore, the mortgage is one such transfer and sale

9. A.S.No.63 of 2015.

is another type of transfer under Transfer of Property Act. According to

Sec.48 of the Transfer of Property Act, whichever is earlier in point of time, the same prevails over the later transaction. In other words, if the mortgage deed is prior in point of time and any other person purchased the same property subsequent to the mortgage, the subsequent purchaser’s rights are always subject to the satisfaction of the prior mortgage. After satisfying the mortgaged money, if anything remained, then the subsequent purchaser can take the said remaining property.

17. In the present case, according to the plaintiffs, their father

Sivalinganna Goud purchased the plaint schedule property on 08-01-1971.

As already stated above, the 1st plaintiff who filed the chief-examination affidavit passed-away, and therefore, the same was not taken into consideration. C.R. Suresh i.e., 7th plaintiff filed the chief-examination affidavit as PW2 and in his chief-examination affidavit, he almost reiterated the contents of the plaint. PW2-C.R. Suresh in the cross-examination dated 12-03-2013 stated “It is true that one Ravindra Reddy had mortgaged the suit land to Bank on 30-03-1966”. Admission is the best proof. According to

Sec.58 of Indian Evidence Act, admitted facts need not be proved.

Therefore, the admission made by PW2 that the said Ravindra Reddy mortgaged the suit schedule property to K.D.C.C. Bank, on 30-03-1966 goes to the root of the plaintiffs’ case and it falsifies the plaintiffs’ version.

18. The plaintiffs produced 9 documents. Ex.A1 is the registration extract of the sale deed dated 08-01-1971; Ex.A2 is the sale deed dated 13- 07-1971; Ex.A3 is the certified copy of plaint; Ex.A4 is the certified copy of written statement; Ex.A5 is the certified copy of Decree in O.S.No.250/1999;

Ex.A6 is the Judgment in O.S.No.250/1999 on the file of Principal Junior Civil

Judge Court, Adoni; Ex.A7 is the registration extract of sale deed dated 09-

10. A.S.No.63 of 2015.

05-2003 (executed by the 3rd defendant in favour of the 1st defendant);

Ex.A8 is the registration extract of sale deed dated 23-05-2003 (executed by the 1st defendant in favour of defendants 5 and 6) and Ex.A9 is the

Encumbrance Certificate. But, the plaintiffs did not produce any document to establish the date of mortgage by the said Ravindra Reddy in favour of

K.D.C.C. Bank. One can easily get the document from K.D.C. C. Bank to know the fact when actually the said Ravindra Reddy mortgaged the suit schedule property to K.D.C. Bank. The present suit was filed in the year 2008 as can be seen from the suit number. The K.D.C.C. bank brought the suit schedule property for auction prior to 1999 and the 1st defendant filed the suit in the year 1999 for re-conveyance of the plaint schedule property.

Therefore, there is every possibility that the plaintiffs had knowledge about the Bank action to bring the suit schedule property for auction.

19. PW2-C.R. Suresh stated in his cross-examination that the plaintiffs have not issued any notice to K.D.C.C. Bank authorities. Therefore, it appears that the plaintiffs acquiesced without enforcing the alleged legal right. As seen from the admission made by the PW2, the said mortgage was in the year 1966 and the said purchase of the same land by Sivalinganna

Goud was in the year 1971. Therefore, the right of sale in favour of

Sivalinganna Goud is subject to rights of the Bank under the mortgage.

20. Another thing to be noted is that the plaintiffs did not produce the original sale deed dated 08-01-1971. They produced the registration extract of the said sale deed. It is stated in the plaint that the original of the sale deed dated 08-01-1971 was lost, but, they have not given any clarification as to how the plaintiffs lost the said original sale deed. Therefore, any amount of doubt can be entertained with regard to the genuineness of the said sale transaction by Ravindra Reddy in favour of Sivalinganna Goud.

11. A.S.No.63 of 2015.

Even if such sale deed was executed, from the evidence of PW2, it can be safely concluded that the said sale deed was never acted upon. As per the contents of the plaint, Sivalinganna Goud was in possession and enjoyment of the suit schedule property till his death i.e., till 2011 and thereafter the plaintiffs 2 to 4 came into possession of the plaint schedule property. But, according to the plaintiffs they leased out the plaint schedule property to some tenant-farmers on Koru basis. The plaintiffs did not give any details of the said lessees and they failed to examine any of the lessees to establish the said fact. According to the plaintiffs, they were in possession of the plaint schedule property till the plaintiffs 1 and 2 went there in May, 2008 to fix the lease rates. According to plaintiffs, the defendants 5 and 6 objected the plaintiffs. It is to be noted that the plaintiffs filed the suit not only for their right of declaration but also for recovery of possession.

Therefore, the plaintiffs ought to have specifically pleaded till what date they were in possession of the plaint schedule property and when the defendants 5 and 6 came into possession of the suit schedule property. But, there is no explanation from the plaintiffs with regard to the fact that when they lost the alleged possession over the plaint schedule property.

21. PW5-Hanumanthu stated in his chief-examination affidavit that he is a resident of Chinna Thumbalam Village and he knew the plaintiffs since his childhood and the plaintiffs used to cultivate the suit schedule property with the help of some villagers including PW5. But, PW5 is not a witness to say about the alleged mortgage or about the sale deed in favour of

Sivalinganna Goud. PW5 did not depose anything about the fact whether the mortgage was prior in point of time or the sale deed of Sivalinganna

Goud is prior in point of time. In the cross-examination PW5 stated that he did not know the distance between the suit land and Chudi Village and that

12. A.S.No.63 of 2015.

he did not know the boundaries of the suit land though he cultivated the suit land for 5 years. He also stated that he did not know the direction of the plaint schedule property from the said village. The said evidence of PW5 goes to show that he did not even know the exact location of the suit schedule property. Therefore, the evidence of PW5 does not inspire confidence that he cultivated the schedule property as a tangent-farmer.

22. The trial Court elaborately discussed all these things and came to correct conclusion that the mortgage by Ravindra Reddy in favour of

K.D.C.C. Bank was prior in point of time than that of the sale deed dated 08- 01-1971 which is in favour of Sivalinganna Goud.

23. It is not the case of the plaintiffs that they are entitled for the remaining portion of the land or remaining portion of the amount after satisfying the mortgage money. If the plaintiffs pleaded and proved that some portion of the land purchased under Ex.A1 had remained after satisfying the mortgage money, then the plaintiffs would have entitled for the said remaining portion of the land or remaining amount after satisfying the mortgage money. But it was not the case of plaintiffs and their claim was over the entire plaint schedule property. As seen from the evidence of

DW1 and the documents produced by the plaintiffs and defendants, it is obvious that the sister of Ravindra Reddy i.e., the 1st defendant herein re- paid the mortgage loan amount to KDCC bank and got back the property of

Ravindra Reddy i.e., plaint schedule property. Therefore, 1st defendant is entitled to sell the same in favour of defendants 5 and 6. Since it is proved by the admission of PW2 that mortgage (1966) in favour of KDCC bank was prior to the sale under Ex.A1(1971), the plaintiffs have no right to seek declaration over the entire plaint schedule property and therefore they are

13. A.S.No.63 of 2015.

not entitled for recovery of possession of the plaint schedule property from defendants 5 and 6.

24. In the light of the above discussion, this appellate Court is of the view that the plaintiffs are not entitled for declaration of right and title over the plaint schedule property and for recovery of possession of the same.

Therefore the finding of the trial court to that effect is absolutely tenable.

This point is answered accordingly.

POINT NO.2: (Whether the Judgment of the trial Court needs any interference by the appellate Court, if so, to what extent?)

25. In view of my finding on Point No.1, I am of the view that there are no reasons to interfere with the Judgment and Decree of dismissal of the trial Court. This point is answered accordingly.

26. In the result, the appeal is dismissed confirming the Judgment and

Decree of dismissal dated 12-03-2014 passed by the learned Senior Civil

Judge, Adoni, in O.S. No.113/2008. There is no order as to costs.

Dictated to the Stenographer Gr.1, transcribed by him, corrected and

pronounced by me in open Court, this the 30 th day of September, 2022.

VII ADDITIONAL DISTRICT JUDGE, KURNOOL,

F.A.C. II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.

14. A.S.No.63 of 2015.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE: KURNOOL AT

ADONI.

PRESENT: SRI. G. BHUPAL REDDY, VII ADDITIONAL DISTRICT JUDGE,

KURNOOL, F.A.C., II ADDITIONAL DISTRICT JUDGE, KURNOOL AT

ADONI.

FRIDAY, THE 30th DAY OF SEPTEMBER, 2022.

APPEAL SUIT NO.63 OF 2015.

1. C.R. Suguna Goud died by L.Rs.

2. C.R. Venkatesh Goud, S/o. late C.R. Sivalinganna Goud, Hindu, 42 years, Ryot, Chinna Thumbalam Village.

3. Smt. Ramalingamma, W/o. late Sharanabasava, D/o. late C.R. Sivalinganna Goud, Hindu, 38 years, Ryot, Chinna Thumbalam Village.

4. Smt. Gangamma, W/o. K. S. Shankarappa, Hindu, 36 years, Housewife, Chinna Thumbalam Village.

5. Smt. C.R. Girijamma, W/o. late C.R. Suguna Goud, Hindu, 57 years, Employee, Chinna Thumbalam Village.

6. C.R. Ramesh, S/o. late C.R. Suguna Goud, Hindu, 40 years, Employee, Chinna Thumbalam Village.

7. C.R. Suresh, S/o. late C.R. Suguna Goud, Hindu, 34 years, Employee, Chinna Thumbalam Village.

8. Smt. C.R. Jayamma, D/o. late C.R. Suguna Goud, Hindu, 38 years, Housewife, Chinna Thumbalam Village. … Appellants.

Versus.

1. Smt. Nagamma, W/o. Basavana Goud, Hindu, 63 years, Ryot, Choodi Village, Kowthalam Mandal.

2. Smt. Shanthamma, Hindu, 67 years, Ryot, Kallemgeri Village, Raichur District.

3. The Manager, K.D.C.C. Bank Limited, Adoni.

4. The General Manager, K.D.C.C. Bank Limited, Kurnool.

5. Chagi Huligappa, S/o. Chagi Thimmaiah, Hindu, 45 years, Ryot, Choodi Village, Kowthalam Mandal.

6. Chagi Ramayya, S/o. C. Chinna Thimmaiah, Hindu, 42 years, Ryot, Choodi Village, Kowthalam Mandal. … Respondents.

Appeal against the Judgment and Decree Dt.12-03-2014 passed by Learned Senior Civil Judge, Adoni, in O. S. No.113/2008.

Between:

1. C.R. Suguna Goud died by L.Rs.

2. C.R. Venkatesh Goud.

3. Smt. Ramalingamma.

4. Smt. Gangamma.

5. Smt. C.R. Girijamma.

15. A.S.No.63 of 2015.

6. C.R. Ramesh.

7. C.R. Suresh.

8. Smt. C.R. Jayamma. … Plaintiffs.

And

1. Smt. Nagamma.

2. Smt. Shanthamma.

3. The Manager, K.D.C.C. Bank Limited, Adoni.

4. The General Manager, K.D.C.C. Bank Limited, Kurnool.

5. Chagi Huligappa.

6. Chagi Ramayya. … Defendants.

This appeal under order 41 Rule 1 C.P.C. is by the appellants who are the plaintiffs in O.S.No.113/2008 on the file of Senior Civil Judge’s Court,

Adoni, praying this Court to set aside the Judgment and decree dated 12-03- 2014 passed by the learned Senior Civil Judge, Adoni, in the above suit, by allowing this appeal with costs and to decree the suit in O.S.No.113/2008 on the file of Senior Civil Judge’s Court, Adoni, as prayed for with costs.

Appeal presented on 21-07-2014 and filed on 09-09-2015. L.R.P. on 07-09-2015. J.V. of Rs.1,88,355/- and a Court fee of Rs.4,326/- is paid under section 49 of A.P.C.F. Act.

This Appeal came up on this day for final hearing before me in the presence of Sri. G.C. Ranganna, Advocate for the Appellants and of Sri. B.

Purushothama Reddy, Advocate for the 3rd respondent, Sri. K. Hanumesh,

Advocate for respondents 5 and 6 and the respondents 1 and 4 having remained exparte and after hearing both sides, having stood over for consideration till this day this Court doth order and decree:

1) That the Appeal be and the same is hereby dismissed;

2) That the Judgment and Decree dated 28-02-2015 in O.S. No.452/ 2007 passed by the learned Principal Junior Civil Judge, Adoni, be and the same is hereby confirmed;

3) That there is no order as to costs.

Given under my hand and the seal of the Court, this the 30th day of

September, 2022.

VII ADDITIONAL DISTRICT JUDGE, KURNOOL,

F.A.C. II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.

16. A.S.No.63 of 2015.

MEMO OF COSTS.

-- NIL --

VII Addl.D.J.KNL. F.A.C.II Addl.D.J.

KNL. AT ADN.

1. A.S.No.63 of 2015.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE: KURNOOL AT

ADONI.

PRESENT: SRI. G. BHUPAL REDDY, VII ADDITIONAL DISTRICT JUDGE,

KURNOOL, F.A.C., II ADDITIONAL DISTRICT JUDGE, KURNOOL AT

ADONI.

FRIDAY, THE 30th DAY OF SEPTEMBER, 2022.

APPEAL SUIT NO.63 OF 2015.

1. C.R. Suguna Goud died by L.Rs.

2. C.R. Venkatesh Goud.

3. Smt. Ramalingamma.

4. Smt. Gangamma.

5. Smt. C.R. Girijamma.

6. C.R. Ramesh.

7. C.R. Suresh.

8. Smt. C.R. Jayamma. … Appellants.

Versus.

1. Smt. Nagamma.

2. Smt. Shanthamma.

3. The Manager, K.D.C.C. Bank Limited, Adoni.

4. The General Manager, K.D.C.C. Bank Limited, Kurnool.

5. Chagi Huligappa.

6. Chagi Ramayya. … Respondents.

Appeal against the Judgment and Decree Dt.12-03-2014 passed by

Learned Senior Civil Judge, Adoni, in O. S. No.113/2008.

Between:

1. C.R. Suguna Goud died by L.Rs.

2. C.R. Venkatesh Goud.

3. Smt. Ramalingamma.

4. Smt. Gangamma.

5. Smt. C.R. Girijamma.

6. C.R. Ramesh.

7. C.R. Suresh.

8. Smt. C.R. Jayamma. … Plaintiffs.

And

1. Smt. Nagamma.

2. Smt. Shanthamma.

3. The Manager, K.D.C.C. Bank Limited, Adoni.

4. The General Manager, K.D.C.C. Bank Limited, Kurnool.

2. A.S.No.63 of 2015.

5. Chagi Huligappa.

6. Chagi Ramayya. … Defendants.

This Appeal came up before me on 02-09-2022 for a final hearing in the presence of Sri. G.C. Ranganna, Advocate for the Appellants and of Sri.

B. Purushothama Reddy, Advocate for the 3 rd respondent, Sri. K. Hanumesh,

Advocate for respondents 5 and 6 and the respondents 1 and 4 having remained exparte and after hearing both sides, having stood over for consideration till this day this Court delivered the following:

: J U D G M E N T :

This appeal has been filed by the appellants who are the plaintiffs in

O.S. No.113/2008, on the file of Senior Civil Judge Court, Adoni, assailing

the Judgment and Decree dated 12-03-2014, wherein the learned Senior

Civil Judge, Adoni, (hereinafter referred to as ‘the trial Court’) dismissed the

suit of the plaintiffs filed for declaration of right and title and for recovery of possession etc.,.

2. The parties herein, will be, hereafter referred to as arrayed before the trial Court for the sake of convenience and to avoid confusion.

3. It is stated in the memorandum of grounds of appeal that the

Judgment and Decree of the trial Court is against law, weight of evidence and probabilities of the case. The trial Court erroneously disbelieved Ex.A1 to Ex.A6. The trial Court did not properly appreciate the evidence on record.

The trial Court did not assign proper reasons for dismissal of the suit. The trial Court decided the suit one sided and did not consider the facts admitted by the defendants. The discussion of the trial Court is perfunctory and does not satisfy the judicial norms. The trial Court made unnecessary observations without any basis. The trial Court wrongly came to the conclusion that the plaintiffs are not entitled for the reliefs sought for.

3. A.S.No.63 of 2015.

Finally, the plaintiffs prayed to set aside the Judgment and Decree of the trial Court by allowing this appeal and to decree the suit in O.S.No.113/2008 on the file of Senior Civil Judge Court, Adoni, as prayed for.

4. The contents of the plaint, in brief, are:

The plaintiffs are the absolute owners of the plaint schedule property having succeeded the same from their father C.R. Sivalinganna Goud. The said Sivalinganna Goud purchased the suit schedule property and some other properties under a registered sale deed dated 08-01-1971 from one B.

Ravindra Reddy. Since the date of purchase, the said Sivalinganna Goud was in possession and enjoyment of the plaint schedule property along with other properties. Sivalinganna Goud died in the year 1991. The plaintiffs lost the original registered sale deed and copy of registered sale deed is filed. After the death of Sivalinganna Goud, the plaintiffs who are his legal heirs succeeded the plaint schedule property. The plaintiffs are in possession and enjoyment of the plaint schedule property by leasing out the same (Koru Basis) to various tenant-farmers in the village. Sivalinganna

Goud during his lifetime sold an extent of Ac.3.16 cents in Sy.No.221/A/1, out of Ac.6.33 cents, to one Chinna Thimmaiah on 30-07-1971. Out of the land purchased from Ravindra Reddy, an extent of Ac.0.80cents in

Sy.No.213/B1 had gone in land ceiling in the year 1991 and the plaintiffs received compensation for the said land from the Revenue Department. The said Ravindra Reddy, by taking undue advantage of the revenue records, obtained loan by mortgaging the plaint schedule property subsequent to the sale of the same to Sivalinganna Goud. The defendants 3 and 4 i.e., The

Kurnool District Central Co-operative Bank Limited, (in short K.D.C.C.Bank) without proper verification of encumbrance certificate etc., put the said land for auction and finally the said bank itself purchased the same. The

4. A.S.No.63 of 2015.

defendants 1 and 2 and K.D.C.C. Bank authorities colluded with each other and claimed the suit schedule property and filed O.S.No.250/1999 on the file of Principal Junior Civil Judge Court, Adoni, with a prayer for re-conveyance of the land from the defendants 3 and 4. After full-fledged trial, the said suit was decreed. The plaintiffs are not parties to the said suit. Basing on the

Judgment and Decree in O.S.No.250/1999, the defendants 3 and 4 herein executed a re-conveyance deed in favour of the 1st defendant herein on 09- 05-2003. The defendants 1 to 4 are well aware of the fraud played by the said Ravindra Reddy. The 3rd defendant simply executed the re-conveyance deed in favour of the 1st defendant to wash out their (KDCC bank authorities) hands. The said re-conveyance deed is not binding on the plaintiffs. The 1st defendant sold the plaint schedule property to the defendants 5 and 6 on 23-05-2003 for Rs.2,35,000/-. After the death of

Sivalinganna Goud, the 1st defendant had taken responsibility of the suit schedule property and cultivating the same and maintaining the same on behalf of other plaintiffs. The 1st plaintiff became old and due to sickness, she was unable to maintain the fields for 2 years and leased out the same to some tenant-farmers. In the month of May, 2008, the 1st plaintiff went to

Chudi Village to see the plaint schedule property and when the plaintiffs 1 and 2 reached the plaint schedule property, for fixing Koru rates of the lands leased, then the defendants 5 and 6 objected stating that they purchased the suit schedule property under a registered sale deed dated 23-05-2003.

The plaintiffs obtained the copy of Judgment and Decree in O.S.No.250/1999 and other connected matters. On 20-07-2008, the plaintiffs demanded the defendants 5 and 6 to vacate the plaint schedule property, but the defendants bluntly refused to vacate the same. Hence, the plaintiffs are constrained to file the suit for declaration and for recovery of possession.

5. A.S.No.63 of 2015.

5. The 1st defendant filed written statement. The defendants 5 and 6 adopted the same by way of adoption memo. In the written statement of the 1st defendant, the contents of the plaint are denied para-wise. It is further stated that there was no cause of action for the suit. The Court fee paid by the plaintiffs is not correct. The suit is barred by limitation. The dispute was already decided by the Principal Junior Civil Judge Court, Adoni, in O.S.No.250/1999. Hence, doctrine of resjudicata is applicable. The 1st defendant filed a suit in O.S.No.250/1999 on the file of Principal Junior Civil

Judge Court, Adoni, against the defendants 2 to 4 herein to declare the 1st

defendant`s right to get re-conveyance deed from the 2nd defendant. The said suit was decreed in favour of the 1st defendant herein and accordingly, a deed of re-conveyance was executed in favour of the 1st defendant herein on 09-05-2003. Since then, the 1st defendant had been in possession and enjoyment of the same and thereafter, she sold the same to the defendants 5 and 6 under a registered sale deed dated 23-05-2003. Since then, the defendants 5 and 6 are in possession and enjoyment of the suit schedule property without interruption from anybody. The plaintiffs have no right or title whatsoever. The plaintiffs have not taken any steps against the

Judgment and Decree in O.S.No.250/1999. The plaintiffs suppressed all the material facts and filed this suit. Finally, the defendants 1, 5 and 6 pray to dismiss the suit.

6. The 3rd defendant filed written statement and the same was adopted by 4th defendant by way of adoption memo. In the written statement of 3rd defendant, the material averments mentioned in the plaint are denied. It is further stated that the K.D.C.C. Bank had acted legally as per the procedure established under law. The K.D.C.C. Bank brought the mortgaged property for auction and obtained a sale deed. It is further

6. A.S.No.63 of 2015.

stated that there is no cause of action to file the suit by the plaintiffs and the suit is barred by limitation. Finally, the defendants 3 and 4 pray for dismissal of the suit.

7. Basing on the above pleadings of the parties, the following issues were framed in the trial Court:

1) Whether the plaintiffs are entitled to declaration of their title over the suit schedule property and for delivery of possession?

2) Whether the suit was barred by principles of resjudicata?

3) To what relief?

8. Before the trial Court on behalf of the plaintiffs’ chief affidavits of 5 witnesses were filed. The 1st plaintiff filed the chief-examination affidavit as

PW1, but after filing the same, he passed away. Thereafter, it appears that the plaint had been amended by adding the L.Rs. of the 1st plaintiff as plaintiffs 5 to 8. Since the 1st plaintiff died, the chief-examination affidavit of

PW2 was filed on behalf of the plaintiffs. Two other persons also filed chief- examination affidavits as PW3 and PW4, but, they did not come to the witness box and finally their chief-examination affidavits are eschewed. The chief-examination affidavit of one Boya Hanumanthu was filed as PW5.

Thus, only 2 witnesses are examined on behalf of the plaintiffs i.e., PW2 and

PW5. Ex.A1 to Ex.A6 were marked on behalf of the plaintiffs. The 1st defendant examined herself as DW1, but, no documents were marked on behalf of the defendants.

9. The trial Court having considering the oral and documentary evidence adduced before it, dismissed the suit of the plaintiffs.

10. No witnesses are examined and no documents are filed on either side before this appellate Court.

7. A.S.No.63 of 2015.

11. Now, the points for determination are:

1. Whether the finding of the trial Court that ‘the plaintiffs are not entitled for declaration of right and title and for delivery of possession’ is tenable?

2. Whether the Judgment of the trial Court needs any interference by the appellate Court, if so, to what extent?

POINT No.1: (Whether the finding of the trial Court that ‘the plaintiffs are not entitled for declaration of right and title and for delivery of possession’ is tenable?)

12. Originally 4 plaintiffs filed the suit. After the death of the 1st plaintiff, the plaintiffs 5 to 8 were added as L.Rs of the 1st plaintiff. The case of the plaintiffs is that Sivalinganna Goud purchased the suit schedule property and some other properties from one Ravindra Reddy under a registered sale deed dated 08-01-1971, but, the said Ravindra Reddy mortgaged the suit schedule property to K.D.C.C. Bank, subsequent to the sale deed of Sivalinganna Goud i.e., subsequent to 08-01-1971. The plaintiffs also pleaded that Sivalinganna Goud sold some portion of the land out of the land purchased from Ravindra Reddy to one Chinna Thimmaiah under a registered sale deed dated 13-07-1971. Thus, according to the plaintiffs, Sivalinganna Goud having purchased the plaint schedule property under the registered sale deed became the absolute owner of the same.

However, the said Ravindra Reddy taking undue advantage of entries in the revenue records, mortgaged the plaint schedule property to K.D.C.C. Bank, without knowledge of Sivalinganna Goud and the plaintiffs.

8. A.S.No.63 of 2015.

13. The contention of the defendants is that Ravindra Reddy mortgaged the plaint schedule property prior to 08-01-1971 and when

Ravindra Reddy failed to discharge the loan, the K.D.C.C. Bank authorities initiated legal proceedings and put the mortgaged property under auction and since no bidders came forward, the Bank itself purchased the property.

14. It is the contention of the 1st defendant that she, being the sister of Ravindra Reddy, discharged the entire loan with interest and requested the K.D.C.C. Bank authorities to re-convey the land to her and when the

Bank authorities did not respond, she filed a suit in O.S.No.250/1999 and obtained decree and thereafter the 3rd defendant executed re-conveyance deed in favour of the 1st defendant. It is further the contention of the defendants 1, 5 and 6 that the 1st defendant sold the plaint schedule property to the defendants 5 and 6 under a registered sale deed dated 23- 05-2003.

15. Therefore, the core dispute is whether Ravindra Reddy mortgaged

the suit schedule property prior to the alleged sale in favour of Sivalinganna

Goud or subsequent to the said sale. Since, the plaintiffs filed the suit seeking the relief of declaration over the plaint schedule property, it is for them to prove that Ravindra Reddy mortgaged the plaint schedule property subsequent to the sale of the same to Sivalinganna Goud. Thus, the burden heavily lies on the plaintiffs to establish the said fact.

16. Sec.48 of the Transfer of Property Act deals with priority of rights created by transfer. According to the said section, each later created transfer shall be subject to right of previously created transfer. Transfer of property deals with five types of transfers 1) sale, 2) mortgage, 3) lease 4)

Gift and 5) exchange. Therefore, the mortgage is one such transfer and sale

9. A.S.No.63 of 2015.

is another type of transfer under Transfer of Property Act. According to

Sec.48 of the Transfer of Property Act, whichever is earlier in point of time, the same prevails over the later transaction. In other words, if the mortgage deed is prior in point of time and any other person purchased the same property subsequent to the mortgage, the subsequent purchaser’s rights are always subject to the satisfaction of the prior mortgage. After satisfying the mortgaged money, if anything remained, then the subsequent purchaser can take the said remaining property.

17. In the present case, according to the plaintiffs, their father

Sivalinganna Goud purchased the plaint schedule property on 08-01-1971.

As already stated above, the 1st plaintiff who filed the chief-examination affidavit passed-away, and therefore, the same was not taken into consideration. C.R. Suresh i.e., 7th plaintiff filed the chief-examination affidavit as PW2 and in his chief-examination affidavit, he almost reiterated the contents of the plaint. PW2-C.R. Suresh in the cross-examination dated 12-03-2013 stated “It is true that one Ravindra Reddy had mortgaged the suit land to Bank on 30-03-1966”. Admission is the best proof. According to

Sec.58 of Indian Evidence Act, admitted facts need not be proved.

Therefore, the admission made by PW2 that the said Ravindra Reddy mortgaged the suit schedule property to K.D.C.C. Bank, on 30-03-1966 goes to the root of the plaintiffs’ case and it falsifies the plaintiffs’ version.

18. The plaintiffs produced 9 documents. Ex.A1 is the registration extract of the sale deed dated 08-01-1971; Ex.A2 is the sale deed dated 13- 07-1971; Ex.A3 is the certified copy of plaint; Ex.A4 is the certified copy of written statement; Ex.A5 is the certified copy of Decree in O.S.No.250/1999;

Ex.A6 is the Judgment in O.S.No.250/1999 on the file of Principal Junior Civil

Judge Court, Adoni; Ex.A7 is the registration extract of sale deed dated 09-

10. A.S.No.63 of 2015.

05-2003 (executed by the 3rd defendant in favour of the 1st defendant);

Ex.A8 is the registration extract of sale deed dated 23-05-2003 (executed by the 1st defendant in favour of defendants 5 and 6) and Ex.A9 is the

Encumbrance Certificate. But, the plaintiffs did not produce any document to establish the date of mortgage by the said Ravindra Reddy in favour of

K.D.C.C. Bank. One can easily get the document from K.D.C. C. Bank to know the fact when actually the said Ravindra Reddy mortgaged the suit schedule property to K.D.C. Bank. The present suit was filed in the year 2008 as can be seen from the suit number. The K.D.C.C. bank brought the suit schedule property for auction prior to 1999 and the 1st defendant filed the suit in the year 1999 for re-conveyance of the plaint schedule property.

Therefore, there is every possibility that the plaintiffs had knowledge about the Bank action to bring the suit schedule property for auction.

19. PW2-C.R. Suresh stated in his cross-examination that the plaintiffs have not issued any notice to K.D.C.C. Bank authorities. Therefore, it appears that the plaintiffs acquiesced without enforcing the alleged legal right. As seen from the admission made by the PW2, the said mortgage was in the year 1966 and the said purchase of the same land by Sivalinganna

Goud was in the year 1971. Therefore, the right of sale in favour of

Sivalinganna Goud is subject to rights of the Bank under the mortgage.

20. Another thing to be noted is that the plaintiffs did not produce the original sale deed dated 08-01-1971. They produced the registration extract of the said sale deed. It is stated in the plaint that the original of the sale deed dated 08-01-1971 was lost, but, they have not given any clarification as to how the plaintiffs lost the said original sale deed. Therefore, any amount of doubt can be entertained with regard to the genuineness of the said sale transaction by Ravindra Reddy in favour of Sivalinganna Goud.

11. A.S.No.63 of 2015.

Even if such sale deed was executed, from the evidence of PW2, it can be safely concluded that the said sale deed was never acted upon. As per the contents of the plaint, Sivalinganna Goud was in possession and enjoyment of the suit schedule property till his death i.e., till 2011 and thereafter the plaintiffs 2 to 4 came into possession of the plaint schedule property. But, according to the plaintiffs they leased out the plaint schedule property to some tenant-farmers on Koru basis. The plaintiffs did not give any details of the said lessees and they failed to examine any of the lessees to establish the said fact. According to the plaintiffs, they were in possession of the plaint schedule property till the plaintiffs 1 and 2 went there in May, 2008 to fix the lease rates. According to plaintiffs, the defendants 5 and 6 objected the plaintiffs. It is to be noted that the plaintiffs filed the suit not only for their right of declaration but also for recovery of possession.

Therefore, the plaintiffs ought to have specifically pleaded till what date they were in possession of the plaint schedule property and when the defendants 5 and 6 came into possession of the suit schedule property. But, there is no explanation from the plaintiffs with regard to the fact that when they lost the alleged possession over the plaint schedule property.

21. PW5-Hanumanthu stated in his chief-examination affidavit that he is a resident of Chinna Thumbalam Village and he knew the plaintiffs since his childhood and the plaintiffs used to cultivate the suit schedule property with the help of some villagers including PW5. But, PW5 is not a witness to say about the alleged mortgage or about the sale deed in favour of

Sivalinganna Goud. PW5 did not depose anything about the fact whether the mortgage was prior in point of time or the sale deed of Sivalinganna

Goud is prior in point of time. In the cross-examination PW5 stated that he did not know the distance between the suit land and Chudi Village and that

12. A.S.No.63 of 2015.

he did not know the boundaries of the suit land though he cultivated the suit land for 5 years. He also stated that he did not know the direction of the plaint schedule property from the said village. The said evidence of PW5 goes to show that he did not even know the exact location of the suit schedule property. Therefore, the evidence of PW5 does not inspire confidence that he cultivated the schedule property as a tangent-farmer.

22. The trial Court elaborately discussed all these things and came to correct conclusion that the mortgage by Ravindra Reddy in favour of

K.D.C.C. Bank was prior in point of time than that of the sale deed dated 08- 01-1971 which is in favour of Sivalinganna Goud.

23. It is not the case of the plaintiffs that they are entitled for the remaining portion of the land or remaining portion of the amount after satisfying the mortgage money. If the plaintiffs pleaded and proved that some portion of the land purchased under Ex.A1 had remained after satisfying the mortgage money, then the plaintiffs would have entitled for the said remaining portion of the land or remaining amount after satisfying the mortgage money. But it was not the case of plaintiffs and their claim was over the entire plaint schedule property. As seen from the evidence of

DW1 and the documents produced by the plaintiffs and defendants, it is obvious that the sister of Ravindra Reddy i.e., the 1st defendant herein re- paid the mortgage loan amount to KDCC bank and got back the property of

Ravindra Reddy i.e., plaint schedule property. Therefore, 1st defendant is entitled to sell the same in favour of defendants 5 and 6. Since it is proved by the admission of PW2 that mortgage (1966) in favour of KDCC bank was prior to the sale under Ex.A1(1971), the plaintiffs have no right to seek declaration over the entire plaint schedule property and therefore they are

13. A.S.No.63 of 2015.

not entitled for recovery of possession of the plaint schedule property from defendants 5 and 6.

24. In the light of the above discussion, this appellate Court is of the view that the plaintiffs are not entitled for declaration of right and title over the plaint schedule property and for recovery of possession of the same.

Therefore the finding of the trial court to that effect is absolutely tenable.

This point is answered accordingly.

POINT NO.2: (Whether the Judgment of the trial Court needs any interference by the appellate Court, if so, to what extent?)

25. In view of my finding on Point No.1, I am of the view that there are no reasons to interfere with the Judgment and Decree of dismissal of the trial Court. This point is answered accordingly.

26. In the result, the appeal is dismissed confirming the Judgment and

Decree of dismissal dated 12-03-2014 passed by the learned Senior Civil

Judge, Adoni, in O.S. No.113/2008. There is no order as to costs.

Dictated to the Stenographer Gr.1, transcribed by him, corrected and

pronounced by me in open Court, this the 30 th day of September, 2022.

VII ADDITIONAL DISTRICT JUDGE, KURNOOL,

F.A.C. II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.

14. A.S.No.63 of 2015.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE: KURNOOL AT

ADONI.

PRESENT: SRI. G. BHUPAL REDDY, VII ADDITIONAL DISTRICT JUDGE,

KURNOOL, F.A.C., II ADDITIONAL DISTRICT JUDGE, KURNOOL AT

ADONI.

FRIDAY, THE 30th DAY OF SEPTEMBER, 2022.

APPEAL SUIT NO.63 OF 2015.

1. C.R. Suguna Goud died by L.Rs.

2. C.R. Venkatesh Goud, S/o. late C.R. Sivalinganna Goud, Hindu, 42 years, Ryot, Chinna Thumbalam Village.

3. Smt. Ramalingamma, W/o. late Sharanabasava, D/o. late C.R. Sivalinganna Goud, Hindu, 38 years, Ryot, Chinna Thumbalam Village.

4. Smt. Gangamma, W/o. K. S. Shankarappa, Hindu, 36 years, Housewife, Chinna Thumbalam Village.

5. Smt. C.R. Girijamma, W/o. late C.R. Suguna Goud, Hindu, 57 years, Employee, Chinna Thumbalam Village.

6. C.R. Ramesh, S/o. late C.R. Suguna Goud, Hindu, 40 years, Employee, Chinna Thumbalam Village.

7. C.R. Suresh, S/o. late C.R. Suguna Goud, Hindu, 34 years, Employee, Chinna Thumbalam Village.

8. Smt. C.R. Jayamma, D/o. late C.R. Suguna Goud, Hindu, 38 years, Housewife, Chinna Thumbalam Village. … Appellants.

Versus.

1. Smt. Nagamma, W/o. Basavana Goud, Hindu, 63 years, Ryot, Choodi Village, Kowthalam Mandal.

2. Smt. Shanthamma, Hindu, 67 years, Ryot, Kallemgeri Village, Raichur District.

3. The Manager, K.D.C.C. Bank Limited, Adoni.

4. The General Manager, K.D.C.C. Bank Limited, Kurnool.

5. Chagi Huligappa, S/o. Chagi Thimmaiah, Hindu, 45 years, Ryot, Choodi Village, Kowthalam Mandal.

6. Chagi Ramayya, S/o. C. Chinna Thimmaiah, Hindu, 42 years, Ryot, Choodi Village, Kowthalam Mandal. … Respondents.

Appeal against the Judgment and Decree Dt.12-03-2014 passed by Learned Senior Civil Judge, Adoni, in O. S. No.113/2008.

Between:

1. C.R. Suguna Goud died by L.Rs.

2. C.R. Venkatesh Goud.

3. Smt. Ramalingamma.

4. Smt. Gangamma.

5. Smt. C.R. Girijamma.

15. A.S.No.63 of 2015.

6. C.R. Ramesh.

7. C.R. Suresh.

8. Smt. C.R. Jayamma. … Plaintiffs.

And

1. Smt. Nagamma.

2. Smt. Shanthamma.

3. The Manager, K.D.C.C. Bank Limited, Adoni.

4. The General Manager, K.D.C.C. Bank Limited, Kurnool.

5. Chagi Huligappa.

6. Chagi Ramayya. … Defendants.

This appeal under order 41 Rule 1 C.P.C. is by the appellants who are the plaintiffs in O.S.No.113/2008 on the file of Senior Civil Judge’s Court,

Adoni, praying this Court to set aside the Judgment and decree dated 12-03- 2014 passed by the learned Senior Civil Judge, Adoni, in the above suit, by allowing this appeal with costs and to decree the suit in O.S.No.113/2008 on the file of Senior Civil Judge’s Court, Adoni, as prayed for with costs.

Appeal presented on 21-07-2014 and filed on 09-09-2015. L.R.P. on 07-09-2015. J.V. of Rs.1,88,355/- and a Court fee of Rs.4,326/- is paid under section 49 of A.P.C.F. Act.

This Appeal came up on this day for final hearing before me in the presence of Sri. G.C. Ranganna, Advocate for the Appellants and of Sri. B.

Purushothama Reddy, Advocate for the 3rd respondent, Sri. K. Hanumesh,

Advocate for respondents 5 and 6 and the respondents 1 and 4 having remained exparte and after hearing both sides, having stood over for consideration till this day this Court doth order and decree:

1) That the Appeal be and the same is hereby dismissed;

2) That the Judgment and Decree dated 28-02-2015 in O.S. No.452/ 2007 passed by the learned Principal Junior Civil Judge, Adoni, be and the same is hereby confirmed;

3) That there is no order as to costs.

Given under my hand and the seal of the Court, this the 30th day of

September, 2022.

VII ADDITIONAL DISTRICT JUDGE, KURNOOL,

F.A.C. II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.

16. A.S.No.63 of 2015.

MEMO OF COSTS.

-- NIL --

VII Addl.D.J.KNL. F.A.C.II Addl.D.J.

KNL. AT ADN.

1. A.S.No.19 of 2015.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE: KURNOOL AT

ADONI.

PRESENT: SRI. G. BHUPAL REDDY, VII ADDITIONAL DISTRICT JUDGE,

KURNOOL,

F.A.C., II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.

FRIDAY, THE 30th DAY OF SEPTEMBER, 2022.

APPEAL SUIT NO.19 OF 2015.

1. G. Rami Reddy (died by LRs.3 to 6)

2. G. Venkata Reddy

3. Bheemalingamma

4. Nalla Reddy

5. Manjula Vani

6. Malleswari … Appellants.

Versus.

1. G.Yashodamma

2. Thilothamma

3. Kumari Latha … Respondents.

Appeal against the Judgment and Decree Dt.18-02-2015 passed by

Learned Junior Civil Judge, Yemmiganur, in O. S. No.138/2009.

Between:

1. G. Rami Reddy

2. G. Venkata Reddy … Plaintifs .

And

1. G. Yashodamma

2. Thilothamma

3. Kumari Latha … Defendants.

This Appeal came up before me on 16-09-2022 for final hearing in the presence of Sri. K. Md. Mazharul Huq, Advocate for the Appellants and of Sri.

D. Mallikarjuna, Advocate for the respondents and after hearing both sides, having stood over for consideration till this day this Court delivered the following:

2. A.S.No.19 of 2015.

: J U D G M E N T :

1. This appeal was preferred by the unsuccessful plaintiffs in O.S.

No.138/2009 on the file of Junior Civil Judge, Yemmiganur, (hereinafter referred to as ‘the trial Court’), wherein the Trial Court dismissed the plaintiffs’ suit, which is filed for partition of the plaint schedule properties.

2.Pending appeal, the 1st appellant died and his L.Rs., are added as

Appellants 3 to 6 as per the orders in IA No.78/2020 dated 12-11-2021.

3.The parties herein will, hereafter, be referred to as arrayed before the trial Court for the sake of convenience and to avoid confusion.

4.It is stated in the Memorandum of appeal that the Judgment of the trial Court is against law, weight of evidence and probabilities of the case.

The trial Court failed to consider the relationship between the plaintiffs and defendants. The trial Court ought to have disbelieved Ex.B.1 to Ex.B.3. The trial Court grossly erred in believing Ex.B.4 family genealogy tree. The trial

Court failed to consider that Ex.B.5 pattadar pass book issued in favour of

D.1 is not binding on the plaintiffs. The trial Court failed to see the difference between the proper and necessary parties to the suit. The trial Court failed to consider that the plaintiffs are entitled for partition being co-sharers of the property. The trial Court erroneously gave weightage to the gift deed, which is in the name of 1st defendant. The trial Court failed to consider the earlier litigation between the parties and the judgment, which is in favour of the appellants. Finally, the appellants prayed to allow the appeal by setting aside the Judgment and Decree of the trial Court dated 18-2-2015.

5.The case of the plaintiffs as per the plaint averments in brief: The plaint schedule property originally belonged to one Papi Reddy. After his

3. A.S.No.19 of 2015.

death, his only son Venkata Reddy succeeded the property. The said

Venkata Reddy had three sons, viz., Hanumantha Reddy, Veera Reddy and

Harischandra Reddy. Venkata Reddy also died. There was a partition deed

dated 7-3-1967, wherein the properties of Venkata Reddy partitioned among

his three sons, viz., Hanumantha Reddy, Veera Reddy and Harischandra

Reddy. The plaint schedule properties fell to the share of Harischandra

Reddy. The plaintiffs are the sons of Hanumantha Reddy. The said

Hanumantha Reddy died about 15 years ago. Veera Reddy also died leaving defendants as his legal heirs. Harishcandra Reddy died about 25 years ago issue-less and intestate. Thus, the plaintiffs, being the sons of Hanumantha

Reddy and defendants being the L.Rs of Veera Reddy, are entitled for equal shares in the property of Late Harischandra Reddy. The plaint schedule property is in joint possession of the plaintiffs and defendants. The defendant No.1 is the widow of Veera Reddy. The 1st defendant herein filed

OS No.4/2001 against the plaintiffs herein seeking permanent injunction

over the plaint schedule properties. The said suit was dismissed. Thereafter, the 1st defendant herein and plaintiffs in OS No.4/2001 preferred appeal in

AS No.8/2002 and the said appeal also dismissed on 22-7-2008 confirming

the trial Court judgment. Thus, the said judgment in OS NO.4/2001 became final. But in spite of the same, the defendants had been troubling the plaintiffs on one pretext or the other. Several times, the defendants tried to disturb the possession of the plaintiffs over the plaint schedule property.

After the dismissal of the appeal in AS NO.8/2002, the plaintiffs were requesting the defendants for partition of the plaint schedule properties which belong to Harischandra Reddy, but the defendants bluntly refused for the same. Hence, the suit for partition.

4. A.S.No.19 of 2015.

6.The 1st defendant filed written statement and 2nd and 3rd Defendants adopted the same written statement. The defendants denied the material allegations made by the plaintiffs against them. It is stated in the written statement that one Papi Reddy was the original owner of the properties died long back leaving his only son, viz., Venkat Reddy. Venkata Reddy died leaving his 1st wife namely Veeramma and the 2nd wife namely Sanjamma.

The said Venkat Reddy had two children namely Yellamma and Hanumantha

Reddy through his first wife Veeramma. Through his 2nd wife, Venkata

Reddy got two sons, viz., Veera Reddy and Harischandra Reddy and one daughter by name Kamalamma. Yellamma got one daughter by name

Yashodamma and four sons viz., Jayaramudu, Hanumanthu, Raghupathi and

Krishna. Hanumantha Reddy died leaving his two daughters and two sons.

Veera Reddy died leaving the defendants. Harischandra Reddy died issue- less i.e., died unmarried. The plaint schedule property fell into the share of

Harischandra Reddy. The 1st defendant is the daughter of Yellamma, who was the daughter of Veeramma and Venkata Reddy. Harischandra Reddy and Veera Reddy used to cultivate the plaint schedule properties jointly.

Harischandra Reddy died on 4-3-1985. Sanjamma died in the year 1984.

Veera Reddy and Harischandra Reddy are full brothers being the children of

Sanjamma. Hanumantha Reddy is half brother being the son of Veeramma.

There are no Class-I heirs for Harischandra Reddy. The defendants are

Class-2 heirs. According to Section 18 of the Hindu Succession Act, full blood relatives are to be preferred to half blood relatives. Thus, the defendants who are the L.Rs. of Veeramma are preferred to succeed the estate of

Harischandra Reddy. During the life time of Hanumantha Reddy, he did not raise any objection. The said Hanumantha Reddy died in the year 1997. The plaintiffs are not in joint possession of the schedule property. Therefore, the

Court fee paid by them is not correct. Veera Reddy during his life time

5. A.S.No.19 of 2015.

became owner of the plaint schedule properties and he executed gift deed

dated 3-2-1986 in favour of the 1st defendant. The plaintiffs had no right

over the plaint schedule properties. The plaintiff had knowledge about the execution of gift deed in the year 1986 itself. But they kept quiet for all these years. The plaintiffs never challenged the registered gift deed. The defendants became absolute owners of the plaint schedule properties and they have been paying tax to the revenue authorities and obtained passbooks, title deeds, etc. Finally, the defendants prayed to dismiss the suit.

7.Basing on the above pleadings, the trial Court framed the following issues:

1) Whether the plaintiff is entitled for the decree of partition in their favour as prayed for?

2) Whether the registered gift settlement deed dated 3-2-1986 is true?

3) Whether the plaintiffs are entitled for any other relief as prayed for?

4) To what relief?

8.Before the trial Court, on behalf of the plaintiffs, PW1 to PW4 were examined and Ex.A1 to Ex.A5 were marked. On behalf of the defendants,

DW1 to DW4 were examined and Ex.B1 to B15 were marked.

9.The trial Court, after full-fledged trial, dismissed the suit rejecting the partition.

10.Now, the points for consideration are:

1. Whether the finding of the trial Court that the plaintiffs are not entitled for partition of the plaint schedule property, is tenable?

2. Whether the impugned judgment needs to be interfered? If so, to what extent?

6. A.S.No.19 of 2015.

POINT NO.1:

11.As per the pleadings and the evidence adduced by both sides, the undisputed facts are: One Papi Reddy, was the ancestor of the plaintiffs and defendants and the said Papi Reddy died leaving his only son, viz., Venkata

Reddy. The said Venkata Reddy had three sons, viz., Hanumantha Reddy,

Veera Reddy and Harischandra Reddy. The plaintiffs are the sons of

Hanumantha Reddy. The defendants are L.Rs. of Veera Reddy. Harischandra

Reddy died as a Bachelor. The above said facts are not in dispute.

12.The plaintiffs stated in the plaint that Venkata Reddy had three sons, viz., Hanumantha Reddy, Veera Reddy and Harischandra Reddy, but it was not mentioned in the plaint whether the said Venkata Reddy had two wives or not. Therefore, the plaintiffs’ implied contention is that all the three sons were born to the same mother and they are full blood relatives. The contention of the defendants is that the said Venkata Reddy had two wives, viz., Eramma @ Veeramma and Sanjamma. According to defendants,

Veeramma had two children viz., Yellamma and Hanumantha Reddy.

Sanjamma had three children, viz., Veera Reddy, Harischandra Reddy and

Kamalamma. The 1st defendant is the daughter of Yellamma, who was full sister of Hanumantha Reddy. According to the defendants, the family tree can be shown as follows:

PAPI REDDY

↓

VENKATA REDDY

↓↓ 1st wife 2nd wife ERAMMA @ VEERAMMA SANJAMMA ↓↓

HANUMANTHYELLAMMA VEERA HARISCHKAMALAMMA

A REDDY REDDY ANDRA

REDDY ↓↓

7. A.S.No.19 of 2015.

RAMI REDDY VENKAT REDDY G.YASHTHILOTHAMMKUMARI

ODAMMA LATHA

A

Plaintiffs Defendants

13.It is an undisputed fact that the three brothers, viz., Hanumantha

Reddy, Veera Reddy and Harischandra Reddy partitioned their properties in the year 1967 itself and that the plaint schedule properties fell into the share of Harischandra Reddy. According to the plaintiffs, Hanumantha Reddy had equal share along with Veera Reddy in the properties of Harischandra Reddy.

It is undisputed fact that Harischandra Reddy died intestate and issue less.

As on the date of his death, he had no Class-1 heirs to succeed his properties. Therefore, Section 18 of the Hindu Succession Act is applicable.

According to section 18 of the Hindu Succession Act ‘heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect’.

14.The core dispute between the plaintiffs and defendants is that whether or not Hanumantha Reddy was full brother of Veera Reddy and Harischandra

Reddy?

The contentions put forth by the learned counsel for the appellant are:

The suit is barred by res-judicata since the suit filed by the 1st defendant against the plaintiffs for injunction in OS.No.4/2001 was dismissed. The appeal preferred by the 1st defendant in A.S.NO.8/2002 was also dismissed.

In the said suit, it was the contention of the 1st defendant herein that she is the owner of the plaint schedule properties since her husband Veera Reddy was full brother of Harischandra Reddy. In that suit, the defendants, who are plaintiffs in this suit, denied the same. The trial Court and Appellate Court

8. A.S.No.19 of 2015.

decided the matter against the plaintiff (Yashodamma) therein who is 1st defendant herein, stating that Yashodamma was not entitled for permanent injunction against the defendants therein/plaintiffs herein as the plaintiffs herein are co-owners. Since the said dispute was decided in OS.No.4/2001, the said plea of the defendants is hit by res-judicata.

15.The 1st plaintiff-G. Rami Reddy as PW.1 stated in the cross- examination that Yellamma, had four sons and one daughter and the 1st defendant Yashodamma is the daughter of the said Yellamma. PW.1 admitted that his sisters Hanumanthamma and Padmamma are alive. The sons of Kamalamma are also alive. PW.1 categorically stated “it is true as schedule property was gifted by Veera Reddy in favour of his wife D.1

Yashodamma on 3-2-1986 under registered gift deed. I am aware of the said transaction. No notice was issued challenging the said transaction. I did not file any suit challenging the gift transaction.” PW.1 further stated in the cross-examination that Harischandra Reddy died about 30 years ago.

Therefore, it is clear that the plaintiffs kept quiet for 30 years after the death of Harischandra Reddy without claiming their alleged right over the plaint schedule property, though PW.1 stated that he was aware about the gift transaction dated 3-2-1986. PW.1 denied that his father Hanumantha Reddy was the son of the 1st wife Eramma and Harischandra Reddy and Veera

Reddy are sons of 2nd wife Sanjamma.

16.The plaintiffs examined three other witnesses PW.2 to PW.4. PW.2 supported the version of the plaintiff in chief-examination, but in the cross- examination, he stated “Veeramma was the wife of Venkata Reddy. She is the mother of Hanumantha Reddy and Yellamma.” He further stated that “Sanjamma is the mother of Veera Reddy and Harischandra Reddy”. PW.2 also stated that after death of Harischandra Reddy, Veera Reddy cultivated

9. A.S.No.19 of 2015.

the said lands. Thus, PW.2 admitted the version of defendants when he was cross-examined.

17.PW.3 also supported the version of the plaintiffs in the chief- examination, but when comes to cross-examination, he stated that

Sanjamma is the mother of Veera Reddy, Harischandra Reddy and

Kamalamma. Likewise, Veeramma is the mother of Hanumantha Reddy and

Yellamma. Therefore, PW.3 also admitted the version of defendants is correct. PW.4 supported the version of the plaintiffs in the chief- examination, but in the cross-examination, he pleaded ignorance of all the facts relating to wives and children of Venkata Reddy. Thus, plaintiffs’ witnesses themselves admitted the case set up by the defendants.

Therefore, it is obvious that the plaintiffs failed to prove that their father

Hanumantha Reddy was the full brother of Harischandra Reddy.

ABOUT RES-JUDICATA:

18.Section 11 CPC provides that no the court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided. As mentioned above, the counsel for the appellants, vociferously argued that since the said issue with regard to two wives of Venkata Reddy was already decided in OS.No.4/2001, which was confirmed in the appeal, the same cannot be adjudged again, as it was hit by res-judicata. Therefore, according to Appellant Counsel, this Court has no option except to say that the plaintiffs father viz., Hanumantha Reddy was the full brother of Harischandra

Reddy.

19.The learned counsel for the appellant placed reliance on a case between Senior Regional Manager, Food Corporation of India,

10. A.S.No.19 of 2015.

Hyderabad vs Y. Thirupalu reported in 2017 (6) ALD 239 (DB), wherein it is held as follows:

The principles of res judicata operate on the Court. It is the Court which is prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the Court, trying the subsequent proceeding, is satisfied that the earlier Court was competent to dispose of the earlier proceedings, and that the matter had been heard and finally decided by such Court.

20.He also placed reliance on a case between Dr. Subramanian Swamy vs State of Tami Nadu and others reported in 2015 (2) ALD 33 (SC), wherein it is held as follows:

The scope of application of doctrine of res judicata is in question. The literal meaning of “res” is “everything that may form an object of rights and includes an object, subject-matter or status” and “res judicata” literally means “a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgments”. Res judicata pro veritate accipitur is the full maxim which has, over the years, shrunk to mere “res judicata”, which means that res judicata is accepted for truth. The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence interest reipublicae ut sit finis litium (it concerns the State that there be an end to law suits) and partly on the maxim nemo debet bis vexari pro una et eadem causa (no man should be vexed twice over for the same cause). Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide Sha Shivraj Gopalji v. Edappakath Ayissa Bi [(1949) 62 LW 770: AIR 1949 PC 302] and Mohanlal Goenka v. Benoy Kishna Mukherjee [AIR 1953 SC 65].)

21.He also placed reliance on a case between Satyamma (died) per

L.Rs., and others vs Bhoodevi reported in 2015 (5) ALD 137 (SC), by referring the apex Court in Commissioner of Endowments v. Vittalrao, (2005) 4 SCC 120, as follows:

“The test is whether the Court considered the adjudication of the issue, though not formally framed, material and essential for its decision. If the issue of title was raised in the earlier suit and the basis of the grant of relief,

11. A.S.No.19 of 2015.

of injunction is the finding would operate as res judicata in the latter suit for declaration of title.”

22.As per section 11 CPC as interpreted by the above cited decisions, the

Court is prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the

Court, trying the subsequent proceeding, is satisfied that the earlier Court was competent to dispose of the earlier proceedings, and that the matter had been heard and finally decided by such Court. Now it is to be seen whether the plaintiffs could prove the applicability of the doctrine of res judicata In Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai

Ummer, (2000) 3 SCC 350

In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter “directly and substantially” in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was “directly and substantially” in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was “necessary” to be decided for adjudicating on the principal issue and was decided, it would have to be treated as “directly and substantially” in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p. 104). One

has to examine the plaint, the written statement, the issues and the

judgment to find out if the matter was directly and substantially in

issue (Ishwer Singh v. Sarwan Singh [AIR 1965 SC 948] and Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780 : AIR 1976 SC 1569] ). We are of the view that the above summary in Mulla is a correct statement of the law.

23.In the present case, the plaintiffs did not produce the plaint and written statement of earlier suit i.e., in OS.No.4/2001. The general observations mentioned in the said earlier suit cannot be construed as the matter in dispute in this suit was directly and substantially in issue in the said earlier suit.

12. A.S.No.19 of 2015.

24.In view of the admission by PW1, it is clear that the plaintiffs kept quiet for 30 years after the death of Harischandra Reddy without claiming their alleged right over the plaint schedule property, though PW.1 stated that he was aware that Veera Reddy executed a gift deed dated 3-2-1986 in favour of his wife i.e., 1st defendant. PWs 2 and 3 and also admitted in the cross examination that Venkata Reddy had two wives and mothers of

Hanumantha Reddy and Harischandra Reddy were different. Even PW4 pleaded ignorance about the said fact but did not deny the same. Therefore, the contention of the appellant counsel is not tenable. The trial Court discussed all the facts and came to correct conclusion that the plaintiffs’ father Hanumantha Reddy was not the full brother of Harischandra Reddy.

However, the trial Court did not discuss the point of res judicata. In view of the evidence of DW.1 to DW.4 coupled with the admissions made by PW.2 and PW.3, it can safely be concluded that Late Venkata Reddy had two wives namely Veeramma @ Eramma and Sanjamma. It is also clear that

Hanumantha Reddy and Yellamma were children of Veeramma, whereas

Veera Reddy, Harischandra Reddy and Kamalamma are the children of

Sanjamma.

25.Another point to be seen is that admittedly, there are sisters and children of sisters, who are not brought as parties to the present suit. On this ground also, the plaintiffs are not entitled for partition.

26.In the light of the above discussion, this Appellate Court is of the considered view that finding of the trial Court that the plaintiffs are not entitled for partition is correct and tenable.

POINT NO.2:

13. A.S.No.19 of 2015.

27.In view of my finding in the point No.1, this Appeal is devoid of merits and liable to be dismissed.

28.IN THE RESULT, the appeal is dismissed, confirming Judgment and

Decree in O.S.No.138/2009 dated 18-02-2015 on the file Junior Civil Judge,

Yemmiganur. There is no order as to costs.

Dictated to the Stenographer Gr.1, transcribed by him, corrected and

pronounced by me in open Court, this the 30 th day of September, 2022.

VII ADDITIONAL DISTRICT JUDGE, KURNOOL,

F.A.C. II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.

Before The Chairman, Motor Accidents Claims Tribunal-Cum-

IV Additional District Judge: Kurnool.

Present: G. Bhupal Reddy Chairman, MACT - cum – VII Addl. District Judge, Kurnool. FAC. Chairman, MACT - cum – IV Addl. District Judge, Kurnool. Wednesday, the 18th day of December, 2024.

M.V.O.P.No.303/2018

Between:

1. Shaik Mohammed Hussain, S/o.S.Sattar Miah, aged about 50 years, Business.

2. Shaik Bhanu Begum W/o.S.Mohammed Hussain, aged about 45 years, House wife.

Both are Muslims, R/o.Baba Brundavan Nagar, back side of 4th Town Police station, Kurnool town, now R/o.Plot No.51/980-9A.

.. Petitioners.

And

1. M/s.Arun Constructions C/o.MR Arun Jalan, Hindu, Major, R/o.H.No.2-48, Balangar, Mahaboob Nagar District.

2. United India Insurance Co. Ltd., rep.by its Divisional Manager, Kurnool.

3. B.Rama Chandraiah, S/o.B.Hanumanthu, Hindu, Major, R/o.H.No.1-65, Gudi Banda Addala Mahaboob Nagar District.

.. Respondents.

This petition came up before me on 9.12.2024for final hearing in the presence of P.Nirmala and Y.Prakash Reddy, Advocates for the petitioners, and of K.Ravi Kumar, Advocate for the 2nd respondent and 1st and3rd respondents remained exparte, having heard arguments, perused the record and considered the same till this day, this Court delivered the following:

JUDGMENT

1.This claim-petition is filed under Section 166 (1)(c) of Motor Vehicles Act, 1988, by the petitioners, who are parents of the deceased by name S.Abdul

Gafoor Basha (hereinafter referred to as “the deceased”), who died in a road

IV ADJC,KNL2MVOP 303/2018 accident on 8.5.2018, seeking compensation of Rs.10,00,000/- with interest and costs.

2. The case of the petitioners, in brief, as follows:

The petitioners 1 and 2 are parents of the deceased boy - S.Abdul

Gafoor Basha. On 8.5.2018 evening timethe deceased was proceeding on a bicycle on NH-44 road from his aunt’s house towards home and when he reached near Hyundai car showroom at about 17.15 hours, a lorry bearing No.TS-06-UB- 2266 (hereafter referred to as ‘offending vehicle’) which was coming from

Bangalore side in high speed in a rash and negligent manner dashed the bicycle of the deceased boy, as a result the deceased fell on the road and sustained severe injuries. Immediately the boy was shifted to Government General Hospital,

Kurnool and he died because of the injuries sustained by him in the said accident, on the same day while undergoing treatment.

2.1.The deceased boy was hale and healthy and aged 16 years and he was studying 10th class and brilliant student and used to get good marks. Due to sudden demise of the deceased, the petitioners lost love, affection. Upon a complaint, the Station House Officer, Kurnool Traffic PS, registered a case in

Cr.No.20/2018 for the offence U/S 304-A of IPC in respect of the death of the deceased boy in the said accident.

2.2. The 1st Respondent being the owner, 2nd Respondent being the insurer and 3rd respondent being the driver of the offending vehicle, are jointly and severally liable to pay compensation to the petitioners.

3.In response to the notices issued by this tribunal, Respondents 1 and 3 failed to appear before this tribunal and remained ex-parte.

3.1. The 2nd Respondent / Insurance company appeared by engaging counsel and filed counter. The substance of the counter of 2nd respondent is as follows:

The petitioners are put to strict proof of all the allegations mentioned in the

IV ADJC,KNL3MVOP 303/2018 petition. The alleged accident took place because of the negligence of the deceased boy who rode the bicycle in a rash and negligent manner and he himself slipped from the bicycle and fell down and sustained injuries. There was no fault on the part of the driver of the offending lorry. The owner and driver of the offending vehicle colluded with the petitioners. The offending vehicle did not have fitness certificate and permit. The 1st respondent violated the terms and conditions of the insurance policy and also the provisions of the Motor

Vehicle Act. The petitioners are put to strict proof of age, income and study of the deceased boy. The claim of the petitioners is excessive and finally 2nd respondent prayed to dismiss the claim-petition.

4.The following issues were settled for trial on 3.8.2021:

(1) Whether the accident occurred due to rash and negligent driving of Driver of 14 wheels lorry bearing No.TS-06-UB-2266?

(2) Whether the petitioners are entitled to claim compensation of Rs.10,00,000/- or to what just amount and from whom the same shall be recovered?

(3)To what relief ?

5.During the trial, the petitioners got examined the 1st petitioner as PW.1 and an eyewitness to the accident as PW.2 and got marked Ex.A1 to A5. The contesting 2nd respondent did not adduce any oral evidence, but got marked

Ex.B.1- copy of insurance policy on its behalf.

6.Heard the counsel for the claimants and the counsel for the 2nd respondent.

7. ISSUE No.1:

7.1.As per section 166 (1)(c) of the Act, in respect of accidents involving the death of a person arising out of the use of motor vehicles, all or any of the

IV ADJC,KNL4MVOP 303/2018 legal representatives of the deceased may file claim-petition for compensation

before the Claims Tribunal established under Sec.165 of the Act. The claim-

petition is to be filed in the format as per Rule 455 of A.P. Motor Vehicles Rules, 1989.

7.2.As mentioned above, it is the case of claimants that the deceased- S.Abdul

Gafoor Basha was the son of petitioners 1 and 2. He died because of the injuries sustained by him in the road accident occurred on 8.5.2018 at about 17.15 hours, near Hyundai car showroom, due to the rash and negligent driving of the offending vehicle by the 3rd respondent. The said offending vehicle belonged to the 1st respondent, which was insured with the 2nd respondent. According to claimants, they lost their son and love and affection and that they are entitled for compensation from the respondents.

7.3.The 1st claimant has been examined as P.W.1 and in his chief examination affidavit, he reiterated the contents of claim-petition. Through him, Ex.A.1-

Certified copy of F.I.R in Cr.No.20/2018 of Kurnool Traffic P.S, Ex.A.2- Certified copy of inquest report, Ex.A.3-Certified copy of postmortem report, Ex.A.4- certified copy of MVI Report. ExA.5-certified copy of charge sheet in CC

No.1594/2018 of on the file of JMFC, Kurnool are marked.

7.4.According to the counsel for the 2nd respondent, the accident occurred due to the negligence of the deceased boy, who rode the bicycle in a rash and negligent manner and he himself slipped from the bicycle and fell down and sustained injuries and. There was no fault on the part of the driver of the offending lorry. However, the 2nd respondent did not come forward to adduce any oral evidence to prove its contentions. The Hon'ble Supreme court in

Vidyadhar Vs. Manikrao & Anr., (1999) 3 SCC 573 it was held:

Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-

IV ADJC,KNL5MVOP 303/2018 examined by the other side, a presumption would arise that the case set up by him is not correct.

In order to prove the accident, the petitioners examined PW.2 who is an eyewitness to the accident. He stated in his chief examination that on 8.5.2018 in the evening while he was sitting in his shop at 17.15 hours. the boy was going on bicycle on left side of the road in front of his shop and at that time the offending vehicle came from Bangalore side on N.H.44 road with high speed in a rash and negligent manner without blowing horn and dashed against the bicycle.

As a result the S.Abdul Gafoor Basha fell down on the road and sustained grievous injuries. He was shifted to GGH, Kurnool for treatment and while undergoing treatment on the same day the deceased boy died due to injuries.

7.5.In the present case the police filed charge-sheet against the 3rd respondent herein for the offence U/s 304-A IPC in respect of the accident in which the deceased sustained injuries and died. A division bench of Hon’ble High

Court of Kerala In New India Assurance Co.Ltd. vs. Pazhaniammal and others (2012

ACJ 1370) held that charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against indictee, unless there is rebuttal evidence to disprove the same. The same view was expressed by a

Division Bench of the Hon’ble High Court of Karnataka in Sheetal Naik @ Sheetal

Nayak vs Chandra Prabha 2020 SCC online KAR 1884 dated 25-9-2020.

7.6.By filing charge sheet against the accused, the police concluded that the accident took place because of the negligent driving of the offending vehicle by the 3rd respondent. Therefore, the filing of charge sheet against the 3rd respondent itself is a prima-facie proof of the negligent driving of the offending vehicle by the 3rd respondent. The same can be considered by the Court when there is no rebuttal evidence to disprove the same. With regard to standard of proof of negligence of the driver in Motor Accident claims, the Hon’ble Apex

IV ADJC,KNL6MVOP 303/2018

Court in Sunitha vs Rajasthan (2020) 13 SCC 486observed as

While deciding cases arising out of Motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of the probabilities and not the strict standard proof beyond all reasonable doubt which is followed in criminal cases.

Describing the nature of proceedings before a claims tribunal the Hon'ble

Supreme court in Rajwati @ Rajjo vs United India Insurance Company Ltd. 2022 SCC

OnLine SC 1699 Dt: 9-12-2022 observed as under:

In a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal's role would be to award just and fair compensation.

7.7.In view of the above case law, the evidence of Pws.1 and 2 coupled with

Ex.A.1 to A.5 establishes that the accident occurred due to the rash and negligent driving of 3rd respondent. Hence, it can be concluded that the accident occurred due to rash and negligent driving of the driver of the offending vehicle. Accordingly, this issue is decided.

8. ISSUE NO.2:

8.1.According to petitioners, the deceased boy was studying 10th class and he was a brilliant student. However, the petitioners did not produce any documentary evidence in respect of the education of the deceased boy. The father of the deceased i.e. 1st petitioner is examined as PW1 and in the cross- examination he stated that deceased was studying 10th class, but he did not file any study certificate. Exs.A1 to A3 and A5 show the age of the deceased boy was 16 years. It is also mentioned in the First Information Report that the deceased boy completed 7th class in Padma Sri Public School, Indira Gandhi

IV ADJC,KNL7MVOP 303/2018

Nagar, Kurnool. Therefore, it can be understood that the deceased boy might have stopped education after completing 7th class.

8.2.The Hon’ble Apex Court in Kajal v. Jagdish Chand , (2020) 4 SCC while dealing with claim in respect of death of a child aged 12 years observed as follows; ( SCC para 20)

Both the courts below have held that since the girl was a young child of 12 years only notional income of Rs 15,000 p.a. can be taken into consideration. We do not think this is a proper way of assessing the future loss of income. This young girl after studying could have worked and would have earned much more than Rs 15,000 p.a. Each case has to be decided on its own evidence but taking notional income to be Rs 15,000 p.a. is not at all justified. The appellant has placed before us material to show that the minimum wages payable to a skilled workman is Rs 4846 per month. In our opinion, this would be the minimum amount which she would have earned on becoming a major. Adding 40% for the future prospects, it works to be Rs 6784.40 per month i.e. 81,412.80 p.a. Applying the multiplier of 18, it works out to Rs 14,65,430.40, which is rounded off to Rs 14,66,000.

Therefore, the income of the deceased boy can be notionally considered as that of a skilled labourer. In the above referred case the girl Kajal died in the year 2007 and the Hon’ble Apex Court took the notinal income of the girl at

Rs.4846/- per month. In the present case, the deceased boy died in the accident in the year 2018. In view of the inflation and raise of wages, the monthly income of the deceased can be notionally taken at Rs.8,000/- by considering that he would become a skilled worker had he been alive. In view of the above mentioned decision (Kajal) future prospects are to be added at 40% p.awhich would become Rs.3200/-. Therefore, the monthly income of the deceased

Rs.8,000/- including 40% future prospects would comes to Rs.11,200/-. Then annual income of the deceased would comes to Rs.1,34,400/-.

8.3.In view of decision in Sarla Verma v. Delhi Transport Corporation (2009) 6

SCC 121,the personal expenditure of a unmarried bachelor shall be taken at 50% of his income which would come to Rs. 67,200/-. Therefore, the said amount has to be deducted from Rs.1,34,400/-. Then, the annual loss of depen-

IV ADJC,KNL8MVOP 303/2018 dency can be taken as Rs.67,200/-.

8.4.The Hon’ble Apex Court in Divya vs The National Insurance Co. Ltd., 2022

SCC online SC 1488 , has taken the multiplier as 15 for the death of boy at 15 years old. Therefore, the same multiplier can be taken in this case. When the ar- rived amount of Rs.67,200/- is multiplied with the multiplier ‘15’, it would be- come to Rs.10,08,000/-.

8.5.With regard to consortium, in Magma General Insurance Co. Ltd. v. Nanu

Ram & ors., 2018 ACJ 2782, the Hon’ble Apex Court held that the “scope of con- cept of loss of consortium was widened to cover ‘spousal consortium’, ‘parental consortium’ and ‘filial consortium’ also.” In United India Insurance Company Ltd. v.

Satinder Kaur @ Satwinder Kaur and ors., (2021) 11 SCC 780, a three Judge Bench of the Apex Court endorsed the view taken in Magma General Insurance Com- pany Ltd. (supra) and awarded Rs. 40,000/- under the head of loss of spousal con- sortium to the widow of the deceased and ` Rs.1,20,000/- under the head of loss of parental consortium to three children of the deceased and directed the Tri- bunals and High Court to award compensation for loss of consortium, which is a legitimate conventional head.

8.6.In view of the Judgments in Magma case, Satwinder Kaur case (Supra) and

National Insurance Company Ltd. Vs. Pranay Sethi (2017) 16 SCC 680 compensa- tion can also be awarded to the petitioners under the head of Consortium as well. As per the observations in Pranay Sethi case (supra), an amount of

Rs.15,000/- can be granted towards loss of estate, Rs.15,000/- can be granted to- wards funeral expenses, and Rs.80,000/- (@ Rs.40,000/- to each petitioners 1 & 2 can be granted towards loss of consortium. The said amounts of loss of estate and funeral expenses should be enhanced at 10% in every three years. Pranay

Sethi case was of the year 2017. Therefore, an amount of Rs.16,500/- can be

IV ADJC,KNL9MVOP 303/2018 granted towards loss of estate, Rs.16,500/- can be granted towards funeral expenses.

8.7.Then the compensation amounts can be given under various heads are as under:

Loss of dependencyRs. 10,08,000/- Loss of estateRs. 16,500/- Towards consortium Rs. 80,000/- Funeral expensesRs. 16,500/-

Total Rs. 11,21,000/-

8.8.The above amount is exceeding the actual amount claimed by the petitioners, as they asked only Rs.10 lakhs. However the Motor Accident Claims

Tribunal is supposed to grant Just Compensation. The Hon’ble Apex Court in

Meena Devi v. Nunu Chand Mahto, (2023) 1 SCC 204 by referring the decision of a three-Judge Bench in Nagappa v. Gurudayal Singh (2003) 2 SCC 274, it was observed that the Tribunal/Court ought to award “just” compensation which is reasonable in the facts relying upon the evidence produced on record. Therefore, less valuation, if any, made in the claim petition would not be impediment to award just compensation exceeding the claimed amount. Therefore, the just compensation can be granted though it exceeds the actual amount claimed by the petitioners.

8.9.As per the finding given in issue No.1, the 3rd respondent is the driver and the 1st respondent is the owner of the offending vehicle. The 1st respondent is being the owner of the offending vehicle vicariously liable for the acts of the 3rd respondent. The offending vehicle is insured with the 2nd respondent, and it is not in dispute that the policy was in force. The 2nd respondent insurance company itself produced Ex.B1 Insurance policy and there is no dispute with regard to the existence of the policy as on the date of the accident. Therefore, the 2nd respondent is liable to indemnify the liability of the 1st respondent. Hence, the

IV ADJC,KNL10MVOP 303/2018 2nd respondent is liable to pay an amount of Rs.11,21,000/- with interest @ 7.5% with costs to the petitioners. Accordingly, this issue is answered.

9. ISSUE No.3:

In the result, the claim-petition is allowed with costs granting compensation of Rs.11,21,000/- (Rupees Eleven lakhs twenty one thousand only) to the petitioners, with subsequent interest thereon at the rate of 7.5% p.a., from the date of the claim-petition till the deposit of the amount.

Out of the said amount, the petitioners 1 and 2 are granted

Rs.5,60,500/- each.

The respondent No.2 is directed to deposit the said amount with costs within one month from the date of this judgment.

On such deposit, the petitioners No.1 and 2 are entitled to withdraw their entire amount immediately.

The petitioners are directed to pay deficit court fee on the additional amount granted. Till such payment of deficit court fee, the petitioners not entitled to get certified copy of decree.

Advocate's fee is fixed at Rs.6,000/- (Rupees Six thousand only).

Dictated to the stenographer Gr.I, after transcription, corrected and pronounced by

me in the open court on this, the 18 th day of December, 2024.

Chairman, MACT-cum- VII Addl. Dist. Judge, Kurnool. FAC. IV Addl. Dist. Judge, Kurnool.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Petitioner: For the Respondents:

P.W.1: Shaik Mohammed Hussain.None P.W.2: Shain Abdulla.

DOCUMENTS MARKED

For the Petitioner:

Ex.A1/Certified copy of First Information Report in Cr.No.20/2018 of Kurnool Traffic P.S.

IV ADJC,KNL11MVOP 303/2018

Ex.A2/Certified copy of Inquest report Ex.A.3/Certified copy of Postmortem report Ex.A.4/Certified copy of MVI Report Ex.A.5/Certified copy of charge sheet in CC.No.1594/2018 of on the file of the JFCM, Kurnool.

For the respondents:

Ex.B.1: Insurance policy Chairman, MACT-cum- VII Addl. Dist. Judge, Kurnool. FAC. IV Addl. Dist. Judge, Kurnool.

Before The Chairman, Motor Accidents Claims Tribunal-Cum-

IV Additional District Judge: Kurnool.

Present: G. Bhupal Reddy,

Chairman, MACT - cum – VII Addl. District Judge, Kurnool. FAC. Chairman, MACT - cum – IV Addl. District Judge, Kurnool.

Thursday, the 16 th day of January, 2025.

M.V.O.P.No.107/2022

Between:

1. A.Surendra S/o.Chinna Nagaseshulu @ Yerranna, aged about 34 years, Hindu, Coolie, R/o.H.No.4-329,

Byreddy Nagar, 80 Bannur village, Kurnool District.

2. A.Mahendra, S/o.Chinna Nagaseshulu @ Yerranna, aged about 31 years, Hindu, Coolie, R/o.H.No.4-329,

Byreddy Nagar, 80 Bannur village, Kurnool District.

3. Polagalla Someshwaramma, W/o.Pedda Samanna, aged about 36 years, Hindu,coolie, R/o.Alaganur village, Midthur Mandal, Kurnool District.

.. Petitioners.

And

1. Gunta Vijay Kumar, S/o.G.Venkata Subbaiah Setty,

Owner cum Driver of Goods Carriage, aged 46 years,

R/o.Muchumarri (V), Pagidyala (M), Kurnool District.

2. Shriram General Insurance Co. Ltd., rep. by Claims Manager,

E-8, EPIP, RIIC, Industrial area, Sitapura, Jaipur.

.. Respondents.

This petition came up before me on 6.1.2025for final hearing in the presence of B.Sunil Kumar Reddy, Advocate for the petitioners, and of

P.Ramanjaneyulu Advocate for the 2nd respondent and 1st respondent remained ex-parte, having heard arguments, perused the record and considered the same till this day, this Court delivered the following:

JUDGMENT

1.This claim-petition is filed under Section 166 (1) (c) of Motor Vehicles Act,

IV ADJC,KNL2MVOP 107/2022 1988, by the petitioners, who are children of the deceased by name A.Sarojamma (hereinafter referred to as “the deceased”), who died in a motor accident on 7.2.2021 seeking compensation of Rs.6,00,000/- with interest and costs.

2. The case of the petitioners, in brief, as follows:

The deceased Sarojamma met with motor accident on 7.2.2021 at 18.30 hours near De Paul School, Karivena village, Kurnool – Guntur Road. At that time, a Mini van bearing No.AP-21-TW-4406 (hereafter referred to as ‘offending vehicle’) which was being driven by 1st respondent in a rash and negligent manner, dashed the deceased while she was crossing the road. The deceased was initially shifted to Community Health Centre, Atmakur and from there she was shifted to Government General Hospital, Kurnool. While undergoing treatment the deceased died on 8.2.2021. A case was registered in

Cr.No.76/2021 by the police of Atmakur P.S.

2.1. The petitioners are children of the deceased Sarojamma. The deceased was hale and healthy, she was aged 56 years and she used to do coolie works and earning Rs.7,500/- per month.

2.2.1st respondent is the driver cum owner of the crime vehicle which was insured with 2nd respondent /Shriram General Insurance Company Ltd. Therefore, the respondents are jointly and severally liable to pay compensation of Rs.6 lakhs to the petitioners.

3.In response to the notice issued by this tribunal, Respondent No.1, who is the owner and driver of the offending vehicle, did not appear before this tribunal and remained ex-parte.

3.1. The 2nd Respondent / Insurance company contested the matter and filed counter denying all the material averments mentioned in the claim petition and put the petitioners to strict proof of all the facts that are mentioned in the

IV ADJC,KNL3MVOP 107/2022 claim petition including age, work, income of the deceased, driving licence of the 1st respondent, existence of the insurance policy and the negligence on the part of the 1st respondent. It is further stated in the counter that driver of the crime vehicle was not holding valid driving licence to drive the offending vehicle at the time of the accident. The 1st respondent i.e. owner of the vehicle did not furnish particulars of the policy, other particulars as required U/sec.134(c) of the

Motor Vehicle Act. The concerned police also failed to comply with Sec. 158(6) of MV Act. The crime vehicle did not have valid permit and fitness certificate.

The claim amount of the petitioners is excessive and finally 2nd respondent prayed to dismiss the claim-petition.

4.The following issues were settled for trial on 9.5.2023:

(1) Whether the accident occurred due to rash and negligent driving of Driver of Mini Van vehicle bearing No.AP-21-TW-4406?

(2) Whether the petitioners are entitled to claim compensation of Rs.6,00,000/- or to what just amount and from whom the same shall be recovered?

(3)To what relief ?

5.During the trial, the petitioners got examined the 1st petitioner as PW.1 and eyewitness to the accident as PW.3 and got marked Ex.A1 to A5. One

D.Shanthakumar filed Chief affidavit as PW2 and as he did not appear before this court for cross-examination, and therefore his evidence affidavit was eschewed.

The contesting 2nd respondent i.e. Insurance company examined its Senior

Executive , T.P. Claims as RW1 and got marked Ex.B1.

6.Heard the counsel for 2nd respondent. Written arguments filed by counsel for petitioners.

IV ADJC,KNL4MVOP 107/2022

7. ISSUE No.1:

As per section 166 (1) (c) of the Act, in respect of accidents involving the death of a person arising out of the use of motor vehicles, all or any of the legal representatives of the deceased may file claim-petition for compensation before the Claims Tribunal established under Sec.165 of the Act. The claim-petition is to be filed in the format as per Rule 455 of A.P. Motor Vehicles Rules, 1989.

7.2.As mentioned above, it is the case of claimants that the deceased-

A.Sarojamma died because of the injuries sustained by her in the road accident occurred on 7.2.2021 at about 18.30 hours p.m. near DePaul School, Karivena village on Kurnool – Guntur road due to the rash and negligent driving of the offending vehicle by the 1st respondent, which was insured with the 2nd respondent. According to claimants, they lost their mother and love and affection and that they are entitled for compensation from the respondents.

7.3.The 1st claimant has been examined as P.W.1 and in his chief examination affidavit, he reiterated the contents of claim-petition. Through him, Ex.A.1-

Certified copy of F.I.R in Cr.No.76/2021 of Atmakur P.S, Ex.A.2- Certified copy of inquest report, Ex.A.3-Certified copy of postmortem report, ExA.4-certified copy of charge sheet in CC No.531/2022 on the file of JMFC, Atmakur and Ex.A.5- certified copy of MVI Report are marked.

7.4.In order to prove the accident, the petitioners examined PW.3 who is said to be an eyewitness to the accident. He stated in his chief examination that the deceased A.Sarojamma died in motor accident that occurred on 7.2.2021 at about 6.30 p.m. near De Paul School, Karivena village on Kurnool – Guntur Road, due to rash and negligent driving of driver of Mini Van bearing No.AP-21-TW- 4406, as a result she received severe bleeding injuries on her head and shoulder.

Immediately she was shifted to CHC, Atmakur for treatment, from there shifted

IV ADJC,KNL5MVOP 107/2022 to GGH, Kurnool for better treatment. He came to know that she died on 8.2.2021 at about 6.00 a.m. while undergoing treatment.

7.5.In the present case the police filed charge-sheet in CC No.531/2022 on the file of JMFC, Atmakur showing the 1st respondent herein as accused therein for the offences U/sec.304-A IPC in respect of the accident in which the deceased sustained injuries and died. A division bench of Hon’ble High Court of Kerala In

New India Assurance Co.Ltd. vs. Pazhaniammal and others (2012 ACJ 1370) held that charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against indictee, unless there is rebuttal evidence to disprove the same. The same view was expressed by a Division Bench of the

Hon’ble High Court of Karnataka in Sheetal Naik @ Sheetal Nayak vs Chandra

Prabha 2020 SCC online KAR 1884 dated 25-9-2020.

7.6. Therefore, the filing of charge sheet against the 1st respondent itself is a prima-facie proof of the negligent driving of the offending vehicle by the 1st respondent. The same can be considered by the Court when there is no rebuttal evidence to disprove the same. With regard to standard of proof of negligence of the driver in Motor Accident claims, the Hon’ble Apex Court in Sunitha vs

Rajasthan (2020) 13 SCC 486observed as

While deciding cases arising out of Motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of the probabilities and not the strict standard proof beyond all reasonable doubt which is followed in criminal cases.

Describing the nature of proceedings before a claims tribunal the Hon'ble

Supreme court in Rajwati @ Rajjo vs United India Insurance Company Ltd. 2022 SCC

OnLine SC 1699 Dt: 9-12-2022 observed as under:

In a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.

IV ADJC,KNL6MVOP 107/2022

It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal's role would be to award just and fair compensation.

7.7.In view of the above case law, the evidence of PW1 and PW3 along with

Ex.A.1 to A.5 establishes that the accident occurred due to the rash and negligent driving of 1st respondent. Hence, it can be concluded that the accident occurred due to rash and negligent driving of the driver of the offending vehicle.

Accordingly, this issue is decided.

8. ISSUE NO.2:

8.1.The 1st petitioner A.Surendra filed his chief examination affidavit. He deposed inter-alia that deceased Sarojamma was his mother and she was aged 56 years and that she used to earn Rs.7,500/- per month by doing coolie work.

The documents i.e.Ex.A1/FIR, Ex.A2/Inquest report and Ex.A3/Postmortem report show that the deceased was aged about 56 years. Therefore, the same can be considered in computing the compensation.

8.2.The 2nd respondent Insurance company though formally denies all the facts, it did not deny existence of the insurance policy. The 2nd respondent examined one P.Raghu Ram, Senior Executive, T.P. Claims of 2nd respondent company. In his chief examination affidavit RW1 stated that 1st respondent is the owner of the Mini Van bearing No.AP-21-TW-4406 and the same was insured with the 2nd respondent vide policy No.10003/31/21/289266 and policy was valid for the period from 21.10.2020 to 20.10.2022. As mentioned above the accident took place on 7.2.2021 and therefore the insurance policy is in force as on the date of the accident. RW1 produced Ex.B1 Attested copy of Insurance policy along with its terms and conditions. Though the 2nd respondent pleaded

IV ADJC,KNL7MVOP 107/2022 that 1st respondent has violated the terms of the policy and provisions of

M.V.Act, the same has not been substantiated by adducing evidence of proper witnesses and documents to that effect.

8.3.According to 2nd respondent, the 1st respondent was not having valid driving licence. However, police filed charge sheet against the 1st respondent only for the offence U/sec.304-A of IPC, but not under section 180 and 181 of

M.V. Act i.e. for not having driving licence. The 2nd respondent did not adduce any positive evidence about the driving licence of the 1st respondent. Therefore, it can safely be taken that the 1st respondent was having proper driving licence to drive the crime vehicle.

8.4.According to petitioners, their mother used to do coolie work and used to earn Rs.7500/- per month. The counsel for the 2nd respondent in the cross- examination of PW1, put the suggestion that the deceased was not earning the said amount of Rs.7500/- per month. The said suggestion was denied by PW1.

However, it is judicially noticeable fact that any unskilled labourer can earn

Rs.7500/- per month. Therefore, the monthly income of the deceased can be taken at Rs.7500/-. Then, the yearly income becomes to Rs.7,500 x 12 =Rs.90,000/-. In view of the decision in National Insurance Company Limited vs

Pranay Sethi (2017) 16 SCC 680 future prospects are to be added to this income of the deceased. As the deceased was aged 56 years, future prospects are to be taken at 10% which would become Rs.9,000/-. Then, the total yearly income of deceased is Rs.99,000/-.

8.5.The petitioners 1 to 3 are said to be the dependents on the deceased. In view of decision in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121, the personal expenditure of a deceased person having 1 to 3 dependents has to be reckoned at 1/3rd of her income (Rs.99,000/-) which would come to

IV ADJC,KNL8MVOP 107/2022

Rs.33,000/-. Therefore, the said amount has to be deducted from Rs.99,000/-.

Then, the annual loss of dependency can be taken as Rs.66,000/-. As per the above referred judgment, the multiplier applicable to the present case is ‘9’ since the age of the deceased i.e. 56 years. Therefore, Rs.66,000/- is to be multiplied with ‘9’ which would become Rs.5,94,000/-.

8.6.With regard to consortium, in Magma General Insurance Co. Ltd. v. Nanu

Ram & ors., 2018 ACJ 2782, the Hon’ble Apex Court held that the “scope of concept of loss of consortium was widened to cover ‘spousal consortium’, ‘parental consortium’ and ‘filial consortium’ also.” In United India Insurance

Company Ltd. v. Satinder Kaur @ Satwinder Kaur and ors., (2021) 11 SCC 780, a three Judge Bench of the Apex Court endorsed the view taken in Magma

General Insurance Company Ltd. (supra) and awarded Rs. 40,000/- under the head of loss of spousal consortium to the widow of the deceased and `

Rs.1,20,000/- under the head of loss of parental consortium to three children of the deceased and directed the Tribunals and High Court to award compensation for loss of consortium, which is a legitimate conventional head.

8.7.In view of the Judgments in Magma case, Satwinder Kaur case and Pranay

Sethi case (Supra) compensation can also be awarded to the petitioners under the head of Consortium as well. As per the observations in Pranay Sethi case (supra), an amount of Rs.15,000/- can be granted towards loss of estate,

Rs.15,000/- can be granted towards funeral expenses, and Rs.1,20,000/- (@

Rs.40,000/- to each petitioner) can be granted towards loss of consortium. The said amounts of loss of estate and funeral expenses should be enhanced at 10% in every three years. Pranay Sethi case was of the year 2017. Therefore, an amount of Rs.16,500/- can be granted towards loss of estate, Rs.16,500/- can be granted towards funeral expenses.

IV ADJC,KNL9MVOP 107/2022 8.8.Then the compensation amounts can be given under various heads are as under:

Loss of dependencyRs. 5,94,000/- Loss of estateRs. 16,500/- Towards consortium Rs. 1,20,000/- Funeral expensesRs. 16,500/-

Total Rs. 7,47,000/-

8.9.The above amount is exceeding the actual amount claimed by the petitioners, as they asked only Rs.6 lakhs. However the Motor Accident Claims

Tribunal is supposed to grant Just Compensation. The Hon’ble Apex Court in

Meena Devi v. Nunu Chand Mahto, (2023) 1 SCC 204 by referring the decision of a three-Judge Bench in Nagappa v. Gurudayal Singh (2003) 2 SCC 274, observed that the Tribunal/Court ought to award “just” compensation which is reasonable in the facts relying upon the evidence produced on record. Therefore, less valuation, if any, made in the claim petition would not be impediment to award just compensation exceeding the claimed amount. Therefore, the just compensation can be granted though it exceeds the actual amount claimed by the petitioners.

9. It is an admitted fact that 1st respondent is the owner cum driver of the crime vehicle. Usually a wrong doer is liable to pay compensation for the acts done by him. In the present case the crime vehicle is insured with 2nd respondent.

Therefore, 2nd respondent has to indemnify the liability of the 1st respondent and hence 2nd respondent can be directed to pay the above arrived compensation to the petitioners.

10. ISSUE No.3:

In the result, the claim-petition is allowed with costs granting compensation of Rs.7,47,000/- (Rupees Seven lakhs forty seven thousand only) to the

IV ADJC,KNL10MVOP 107/2022 petitioners, with subsequent interest thereon at the rate of 7.5% p.a., from the date of the claim-petition till the deposit of the amount.

Out of the said amount, the petitioners 1 to 3 are granted Rs.2,49,000/- each.

The respondent No.2 is directed to deposit the said amount with costs within one month from the date of this judgment.

On such deposit, the petitioners No.1 to 3 are entitled to withdraw their entire amount immediately.

The petitioners are directed to pay deficit court fee on the additional amount granted. Till such payment of deficit court fee, the petitioners not entitled to get certified copy of decree.

Advocate's fee is fixed at Rs.6,000/- (Rupees Six thousand only).

Dictated to the stenographer Gr.I, after transcription, corrected and pronounced by

me in the open court on this, the 16 th day of January, 2025.

Chairman, MACT-cum- VII Addl. Dist. Judge, Kurnool. FAC. IV Addl. Dist. Judge, Kurnool.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Petitioners:For the Respondents:

P.W.1: A.Surendra. RW1 Pasam Raghuram. P.W.2: D.Santha Kumar (Eschewed). P.W.3: P.Tirumalaiah @ Abraham.

DOCUMENTS MARKED

For the Petitioners:

Ex.A1/Certified copy of First Information Report in Cr.No.76/2021 of Atmakur P.S. Ex.A2/Certified copy of Inquest report of A.Sarojamma. Ex.A.3/Certified copy of Postmortem report of A.Sarojamma. Ex.A.4/Certified copy of charge sheet in CC.No.531/2022 of on the file of the JFCM, Atmakur Ex.A.5/Certified copy of MVI Report

IV ADJC,KNL11MVOP 107/2022

For the respondents:

Ex.B.1: Attested true copy of Insurance policy.

Chairman, MACT-cum- VII Addl. Dist. Judge, Kurnool. FAC. IV Addl. Dist. Judge, Kurnool.