Smt G.Pratibha Devi

1

IN THE COURT OF THE JUDGE, FAMILY COURT-CUM-IV ADDITIONAL

DISTRICT JUDGE: KURNOOL

Present: Smt. G.Pratibha Devi,

Judge, Family Court-cum-IV Additional District Judge Kurnool.

Thursday, the 14th day of November, 2024.

ORIGINAL SUIT No.116/2016.

M.Lingeswaramma. … Plaintiff.

VERSUS

1. Pedda Nagendra Babu.

2. Chinna Nagendra Babu.

3. B.Suseelamma.

M/s.M.S.S.Real Estate Firm Managing partners

4. D.Siv Bhaskar Reddy.

5. P.Moulali.

[D4 & D5 are added as per orders in

IA.288/2019 dated 12.12.2019.] … Defendants.

This suit coming on 7.11.2024 for final hearing before me in the presence of Sri G.Madhusudhana Reddy and Sri A.Ramudu, Advocates

for the petitioner and Sri B.Srikanth, Advocate for D1, Sri M.D.V.Jogaiah

Sarma, Advocate for D3, Sri B.Nagalakshmi Reddy, Advocate for D4 & D5 and D2 having remained ex-parte, upon perusing the material on record, hearing both sides and having stood over for consideration till this day, this court delivered the following:

:: J U D G M E N T ::

1. The plaintiff filed the suit for partition and separate possession of the plaint schedule property and allotment of 1/3rd share to the plaintiff by metes and bounds, to grant mesne profits and for costs of the suit.

2. The brief averments of the plaint are:

a.The plaint schedule property is the Hindu undivided joint 2 family property of plaintiff and defendants 1 and 2 and plaintiff and defendants 1 and 2 are brothers and sister and children of Chinna

Ayyanna and defendant no.3 is the sister’s daughter of Chinna Ayyanna and they are the owners of the Ac.3-00 of land in Sy.No.21 of Pasupala village and their paternal grandfather Chinna Yellappa gifted the plaint schedule property under registered Gift Deed Document NO.4351/1965, with a condition to the then children of Chinna Ayyanna and to be born children of Chinna Ayyanna. 1st defendant alone was the child of Chinna

Ayyanna and was a minor, thereafter 2nd defendant and plaintiff were born to Chinna Ayyanna, as the 1st defendant was minor Chinna Ayyanna made as a guardian of Gift deed. On 24.12.2017 she came to know that 3rd defendant sold the plaint schedule property to one D.Siva Bhaskar

Reddy and P.Moulali under vide registered sale deed dated .14.2.2017 to an extent of Ac.0.75 cents and again sold to an extent of Ac.1-00 in the plaint schedule property on 8.8.2016, as the subject matter of the suit is pending since 2016 the matter is lispendency 3rd defendant sold the schedule properties to M/s.M.S.Real Estates Managing Partner D.Siva

Bhaskar Reddy and P.Moulali.

b.As the plaint schedule property devolved on the plaintiff and defendants 1 and 2 by virtue of Gift deed of 1965 and plaintiff requesting the defendants for partition and gave her share, but they failed to do same and she constrained to file the suit. Defendant no.3 has no right in the schedule property only to grab the land of the plaintiff and defendants 1 and 2.

c.Defendant no.3 has set up a false claim that to an extent of

Ac.1-00 and trying to alienate the same to Moulali. Plaintiff got issued legal notice on 29.4.2016 to defendant no.3 and she received the notice 3 and issued reply with false averments as defendants 1 and 2 are collecting the income derived from the plaint schedule property without giving due share to the plaintiff, they are also liable to show the accounts, hence she filed the suit for partition of the plaint schedule property.

3.Defendant no.2 remained ex-parte. Defendant no.3 filed written statement, Defendant no.1 filed memo adopting the written statement of defendant no.3. Brief averments of the written statement of defendant no.3 are that one Saddela Yellappa S/o.Thippanna is the absolute owner of Ac.3-00 cents of land in Sy.No.21 and it is self acquired property, he is none other than the maternal grandfather of this defendant. Chinna Ayyanna was the son of Saddela Yellappa, he executed registered Gift Deed dated .19.3.1965 gifting away various properties inclusive of the said Ac.3-00 of land in Sy.No.21 in favour of 1st defendant who is the son of his son and also to the male children those would be born to Chinna Ayyanna in future with equal shares therein.

Even though the plaintiff has filed certified copy of said gift deed along with the plaint, this defendant submits that the alleged certified copy of gift deed is meddled and manipulated document and the same does not reproduce the exact contents of the said document i.e. recorded in the records of Registration Department. She obtained scanned certified copy of the said document and it is filed.

Saddella Chinna Ayyanna executed Registered Gift deed dated 25.7.1974 gifting away Ac.1-00 on Southern side in favour of this defendant. She accepted the delivery and she is in possession and enjoyment of the same. Ever since the date of knowledge to one and all 4 including the plaintiff herein and her name is also mutated in the revenue records and obtained pattadar pass book and title deed.

Defendants 1 and 2 herein being the male children of Ayyanna also did not raise any little finger against the gifting of Ac.1-00, as this defendant being the absolute owner of the said land sold away the same in favour of B.Shiva Bhaskar Reddy and P.Moulali, much prior tot he filing of the suit under registered sale deed dated 8.8.2016 and defendants 1 and 2 also attested as witnesses expressing their consent and the transaction is within the knowledge of the plaintiff. Therefore she got issued suitable reply to the plaintiff. There is no cause of action, the court fees paid is also incorrect, hence prays the court to dismiss the suit with exemplary costs of Rs.10,000/-.

4.Defendant no.5 filed written statement, defendant no.4 filed adoption memo adopting the written statement of defendant no.5. Brief averments of the written statement of defendant no.5 are that Saddela

Yellappa S/o.Thippanna was the absolute owner of the Ac.3-00 of land in

Sy.No.21 and it is his self acquired property. He executed Gift deed dated. 19.3.1965 and defendants 4 and 5 purchased Ac.1-00 from defendant no.3 under a registered sale deed dated 8.8.2016 and

Defendants 1 and 2 attested the sale deed and said transaction is within the knowledge of plaintiff. Defendants 4 and 5 are doing real estate business in the name of Balaji Constructions, but the firm name was not added as party and sell away the plots to different persons and the said purchasers were not added as parties, so the present suit is not maintainable for non-joinder of necessary parties, as now purchasers were in possession and enjoyment of the respective plots purchased by 5 them. The plaintiff or defendants are not in possession of the said land.

The Plaintiff did not ask any relief against the defendants 4 and 5 who are bonafide purchasers, hence prays the court to dismiss the suit with costs.

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

1. Whether the plaintiff is entitled for partition and separate possession of 1/3rd share of the petition schedule property as prayed for ?

2. Whether the plaintiff is entitled for mesne profits?

3. Whether the plaint schedule property is the HUF property in which plaintiff, defendant No.1 to defendants NO.3 are having shares?

4. Whether the Registered Gift deed bearing No.743/1965 dated 22.3.1965, Registered Gift Deed dated .2786/74 dated 25.7.1974 and Registered sale deed No.875/33 dated 18.2.1983 are sham and nominal and fabricated documents?

5. Whether the Registered sale deed No.894/2017 dated 14.2.2017 and Registered sale deed No.6361/16 dated 8.8.2016 are null and void and not binding on the plaintiff?

6. Whether 1 st defendant become the absolute owner of Ac.3.00 cents of land in Sy.No.21 by virtue of the Registered Gift deed

dated 19.3.1965 (Doc.No.743/1965) executed by Saddala

Yellappa?

7. Whether the certified copy of the registered sale deed dated 19.3.1965 produced by the plaintiff is a meddled and manipulated document and does not reproduce the exact content of the original Gift deed?

8. Whether the Saddele Chinna Ayyanna S/o.Yellappa had executed

Registered Gift deed dated 25.7.1974 in favour of 3 rd defendant in respect of Ac.1.00 cents of land?

9. Whether the sale of Ac.1.00 cents by the 3 rd defendant in favour of defendants 4 and 5, under Registered sale deed dated 6 8.8.2016 is legally valid and binding on the plaintiff?

10. Whether the Court fee paid by the plaintiff is incorrect and if the suit has to be valued U/S34(1) of AP Court Fees and Suit

Valuation Act?

11. To what relief?

Additional Issue is framed on 13.9.2021.

Whether Sale of Ac.0.75 cents on 14.2.2017 by D3 in favour of D4,

D5 legally valid and binding on the Plaintiff?

6. During course of trial, PW1 is examined on behalf of the plaintiff and Ex.A1 to Ex.A5 documents are marked. On behalf of the defendants, DW1 is examined and Ex.B1 to Ex.B12 documents are marked.

7. ISSUE Nos.7, 1 & 10:

7. Whether the certified copy of the registered sale deed dated 19.3.1965 produced by the plaintiff is a meddled and manipulated document and does not reproduce the exact content of the original Gift deed?

1. Whether the plaintiff is entitled for partition and separate possession of 1/3rd share of the petition schedule property as prayed for ?

10. Whether the Court fee paid by the plaintiff is incorrect and if the suit has to be valued U/S34(1) of AP Court Fees and Suit

Valuation Act?

a.Learned counsel for plaintiff filed written arguments arguing that plaint schedule property is Hindu undivided Joint family property and the plaintiff and defendants 1 and 2 succeeded the property by way of Gift deed executed in the year 1965 and they are in joint possession 7 and enjoyment and Defendant no.3 set up a false claim over Ac.1-00 extent of land and she got issued legal notice on 29.4.2016 and

Defendant no.3 received the same and gave reply notice that she sold property to Defendants 4 and 5 and defendants 1 and 2 did not contest the suit and in fact defendant no.3 has no right to alienate the property to defendants 4 and 5 and defendant no.3 who failed to produce original gift deed dated 22.3.1965 and gift deed dated 25.7.1974 though she is in possession of it creates doubt, hence adverse inference can be drawn.

As all the issues are interlinked to Issue no.4 and also argued that as per the decision reported in Vineeth Sharma Vs. Rakesh Sharma, the status of the daughter is clarified in larger bench, hence plaintiff is entitled for decree.

b.Learned Defendant no.3 counsel argued that plaintiff,

Defendants 1 and 2 are children of Chinna Ayyanna and plaintiff is the female child, but as per Ex.A1 gift deed the property should be devolved to the male issue and during her cross-examination also PW1 admitted the same as she is asking share only in the gift deed property i.e. Ex.A1, but not other properties and also made defendant no.3 as a party as defendant no.3 got Ac.1-00 in view of the gift deed Ex.B3 and the relief is only sought for partition, so other issues framed by the court i.e. about registered sale deeds executed by Defendants 4 and 5 as there is no reliefs sought by the plaintiff in respect of the sale deeds Exs.B8, B10 and also further argued that Ex.B1 scanned copy produced by defendant no.3 clearly shows “"మగ సంతానం సం�తానం�", but Ex.A1 is prepared manually and there is every scope for meddling letter and for the naked eye it is very much clear as plaintiff is relying on Ex.A1 the plaintiff has to explain with 8 regard to the meddling of Ex.A1, but she failed to take any steps to send the document to expert or examining any person to prove except sole testimony of PW1 and further argued that defendants 4 and 5 purchased

Ac.1-00 from defendant no.3 and laid plots and sold to several persons, now purchasers who purchased plots are in possession and enjoyment, hence the suit is very much bad for non-joinder of necessary parties and also argued that the Court Fees paid by the plaintiff U/s.34(2) is not correct as she is not in possession and enjoyment of the property and she has to pay court fee U/s.34(1) of A.P. Court Fees and Suit Valuation

Act, hence prays the court to dismiss the suit.

8. a.With this back drop of arguments, on perusal of the evidence, the plaintiff filed her chief affidavit and reiterated the averments that herself and defendants 1 and 2 are children born to

Chinna Ayyanna, the paternal grandfather by name Chinna Yellappa gifted the plaint schedule property with a condition to the then children of Chinna Ayyanna and to be born male children to Chinna Ayyanna, at that time Defendant no.1 was alone was born to Chinna Ayyanna and was minor, thereafter 2nd defendant and herself were born and she came to know that 3rd defendant sold plaint schedule property to one D.Siva

Bhaskar Reddy and P.Moulali on 14.2.2017 to an extent of Ac.0.75 cents and again on 8.8.2016 an extent of Ac.1-00 under registered sale deed dated . 8.8.2016 pending case and the certified copy of the registered gift deed is marked as Ex.A1 and legal notice is marked as Ex.A2 and certified copy of registered sale deed is marked as Ex.A4 and Ex.A5 also another certified copy of registered sale deed executed by defendant no.3.

9 b.As seen from the cross-examination by Defendant no.3 counsel, she admitted that Saddela Yellappa executed Gift deed on 19.3.1965 in favour of 1st defendant and other male children to be born to Chinna Ayyanna and she admitted that she filed suit for Ac.3-00 and plaint schedule property is Ac.7-04 cents in Sy.No.21 and admitted his paternal grandfather gifted Ac.2-04 cents to Lakshmi Devi and out of the said Ac.2-04 cents, Lakshmidevi gifted Ac.1-00 to 3rd defendant and also suggested to PW1 that she obtained Ex.A1 meddling the content of the original record and also as per the original gift deed executed by

Saddala Yellappa, the plaintiff has no right to claim the property and it is also suggested Chinna Ayyanna gifted Ac.1-00 to defendant no.3 under registered gift deed dated 25.7.1974 and she pleaded ignorance that defendant no.3 obtained pattadar pass book and title deed. She pleaded ignorance that defendants 1 and 2 sold Ac.2-00 of land in 1983 itself to

Lakshmamma. It is suggested plaintiff and defendants 1 and 2 got no right, title and possession over the plaint schedule properties.

c.PW1 is cross-examined by defendants 4 and 5 counsel, there are suggestions that plaintiff received Rs.2,20,000/- from defendants 1 and 2 on 24.11.2008, but she clarified that she received amount for other properties, but not for the plaint schedule property. She denied suggestion that subsequent purchasers are necessary parties, but she denied the same. After cross-examination of PW1 also the plaintiff has not taken any steps to add the subsequent purchasers as parties to the suit.

9.a.Defendant no.3 is examined as DW3 and reiterated the averments in her written statement, that her maternal grandfather 10

Saddela Yellappa is owner of Ac.3-00 of land in Sy.No.21 and it is his self acquired property. He executed registered gift deed on 19.3.1965 gifting away various properties including Ac.3-00 of land to the 1st defendant and also to be born male children of Chinna Ayyanna in future with equal shares and plaintiff meddled the gift deed and filed as Ex.A1, but she produced the scanned certified copy of the said document i.e.

Ex.B1 which clearly shows and on perusal of Ex.B1 i.e. scanned certified copy of registered Gift Deed dated 19.3.1965 executed by Saddala

Yellappa and on the same day he executed another registered Gift Deed gifting Ac.3-16 cents in Sy.No.18 in favour of Saddala Lakshmi Devi and thereafter Saddala Chinna Ayyanna executed registered Gift Deed in her favour on 25.7.1974 gifting Ac.1-00 land.

b.Learned plaintiff counsel who field written arguments arguing that DW1 failed to produce original of Ex.B3. On perusal of Ex.B1 which is scanned copy and golusu writing in telugu is reduced into writing in

Telugu letters clearly and there is clear recital “యి� మీద� �లగ సంతానం బోయే మగ మగ సంతానం సంతతికి”” . On perusal of the Ex.A1 which is marked through PW1, as seen at Page no.2 the letter “గ””is strike off, but if we perused the scanned copy of Gift Deed which is marked as Ex.B1“యి� మీద� �లగ సంతానం బోయే మగ మగ” సంతతికి”” , hence when defendant no.3 is coming forward with Ex.B1 scanned copy, but the plaintiff is filing Ex.A1 certified copy of gift deed, but defendant no.3 filed its scanned copy which clearly shows “యి� మీద� కలగ”బో� మగ” సంతతికి” వారికి”న్ని”�” , hence for naked eye we can clearly 11 మగ” సంతతికి”by striking the letter “ గ” ”in Ex.A1 seen meddling the word certified copy. In spite of cross-examination of PW1 in spite of specific plea the plaintiff has not taken any steps to prove Ex.A1 that it is not meddled, as she is seeking partition, the burden is upon her to prove case. Admittedly, plaintiff is woman and it is the contention of defendant no.3 only for the male children of Chinna Ayyanna the property would devolve, but not to the plaintiff. So in order to claim partition she meddled Ex.A1 gift deed and produced certified copy . But

Defendant no.3 produced scanned copy, as the burden is on the plaintiff she has to take steps to produce original records from Registrar, but she has not taken any steps, hence there is no merit in the arguments of the learned plaintiff counsel shifting the burden on the defendant no.3 for not producing her original gift deed which is marked as Ex.B3.

c.Admittedly, the plaintiff’s grandfather executed gift deed dated 19.3.1965 and that is the basis for the plaintiff to claim her share, as she being the daughter of Chinna Ayyanna, hence claiming 1/3rd share to plaintiff and defendant nos.1 & 2, hence adverse inference can be drawn against plaintiff for not taking any steps to produce original record.

Defendants 1 and 2 not contested the matter and there are exchange of notices between the parties prior to filing of suit. On perusal of the Ex.A2 legal notice issued by plaintiff to defendant no.3 and one

B.V.Ramanamma and Moulali claiming 1/3rd share. But according to plaintiff they got issued reply , but reply notice is not marked by plaintiff or the defendants and in order to prove her case, defendant no.3 has got marked all the documents which are relied by defendant no.3 as it is her case after execution of the gift deed on 19.3.1965 executed by 12

Saddela Yellappa plaintiff’s grandfather also executed another gift deed on 19.3.1965 gifting Ac.3-16 cents to one Lakshmi Deviand Ac.1-00 to

Chinna Ayyanna under Ex.B3 gift deed dated 25.7.1974 and said

Lakshmi Devi father executed Ac.1-00 in favour of 3rd defendant, in turn she sold Ac.1-00 to one Siva Bhaskar Reddy and Moulali under sale deed

dated 8.8.2016. So there is merit in the arguments of the learned 3rd

defendant counsel. The plaintiff got knowledge of the sale deed executed by 3rd defendant in favour of defendants 4 and 5 and apart from that Ex.B8 to B10 are the certified copies of registered sale deeds executed by defendants 1 and 2 in favour of Lakshmamma.

d. Even though learned plaintiff counsel argued that after filing of the suit, some sale transactions are taken place and it is hit by lispendency, but there is no explanation coming forward from the plaintiff not adding the purchasers as parties, as it is the contention of defendants 4 and 5 who filed written statement they already made the site as plots and sold the plots individually. Hence, viewed in any angle the claim of the plaintiff is not tenable and 3rd defendant able to establish that Ex.A1 certified copy of Gift deed is meddled even though

DW1 stated that original gift deeds are available with her and she suppressed original of Ex.B1.

e.But learned 3rd defendant counsel argued that even though

DW1 stated she can file original documents, as the original documents are not available with DW1 she could not produce the same, hence argued that plaintiff taking advantage of the stray sentence in the cross- examination of DW1 that she can file original, is not the ground to show original and available with DW1. She denied the suggestion that there 13 is no recital in Ex.B1 that property should be devolved to the still born male child and she further stated that Malleswaramma and Venkata

Ramanamma are her sisters and deposed her two sisters filed suit

OS.67/2021 against herself for partition of the properties claiming their

shares and the schedule property in the above suit also situated in the

Sy.no.21. She denied that PW1 created nominal sales, so the suggestions put to DW1 that DW1 sisters also interested in the plaint schedule property, but plaintiff has not taken any steps to add sisters of

DW1, but only shown 3rd defendant in the plaint.

f.As seen from the plaint schedule, it is only Ac.3-00 in

Sy.No.21 and the basis for seeking partition is Ex.A1 Gift deed, hence there is no merit in the case of the plaintiff, apart from that plaintiff has paid court fee as if she is in possession and enjoyment of the suit schedule property, but there is no evidence that she is in possession and enjoyment of the same. So, the court fees paid by the plaintiff is not correct. Hence, she is liable to pay court fees U/s.34(1) of A.P.Court Fees and Suit Valuation Act. The office is directed to collect the deficit court fees from the plaintiff. Accordingly, the issue is answered.

Accordingly, the issues 7,10 and 1 are answered against the plaintiff.

10. ISSUE NO.2:

2. Whether the plaintiff is entitled for mesne profits?

As the plaintiff failed to prove her case, question of granting mesne profits does not arise. Hence, this issue is answered accordingly against the plaintiff.

14 11.ISSUE Nos.3, 8 & 9 and ADDITIONAL ISSUE FRAMED

ON 13.9.2021:

3. Whether the plaint schedule property is the HUF property in which plaintiff, defendant No.1 to defendant No.3 are having shares?

8. Whether the Saddela Chinna Ayyanna S/o.Yellappa had executed

Registered Gift deed dated 25.7.1974 in favour of 3 rd defendant in respect of Ac.1.00 cents of land?

9. Whether the sale of Ac.1.00 cents by the 3 rd defendant in favour of defendants 4 and 5, under Registered sale deed dated 8.8.2016 is legally valid and binding on the plaintiff?

Additional Issue:

Whether Sale of Ac.0.75 cents on 14.2.2017 by D3 in favour of D4,

D5 legally valid and binding on the Plaintiff?

Plaintiff failed to prove that plaint schedule property is the Hindu

Undivided Joint Family property of plaintiff and defendants 1 and 2 and 3rd defendant able to establish that she become absolute owner of the

Ac.1-00 of land in view of the gift deed dated 25.7.1974 executed by

Saddala Chinna Ayyanna, as it is a registered document the court can draw presumption under section 79 of Indian Evidence Act with regard to its genuinity as plaintiff failed to prove and also there is no dispute that Chinna Ayyanna is the absolute owner of the property, apart from that 3rd defendant already sold the property to defendants 4 and 5 under registered sale deeds dated 8.8.2016 prior to filing of the suit, but she did not file case initially against defendants 4 and 5. Subsequently

IA.288/2019 is filed and they were added as parties vide orders in

IA.288/2019 U/O.I Rule 10 and came on record on 12.12.2019, but there

is no relief sought by the plaintiff to set aside the sale deeds, the only 15 relief sought by the plaintiff is for partition and allotment of 1/3rd share.

Therefore, the registered sale deed dated 14.2.2017 executed by 3rd defendant in favour of defendants 4 and 5 is binding on the plaintiff.

Accordingly the issue is answered.

12. ISSUE NOS.4 & 5:

4. Whether the Registered Gift deed bearing No.743/1965 dated 22.3.1965, Registered Gift Deed dated .2786/74 dated 25.7.1974 and Registered sale deed No.875/33 dated 18.2.1983 are sham and nominal and fabricated documents?

5. Whether the Registered sale deed No.894/2017 dated 14.2.2017 and Registered sale deed No.6361/16 dated 8.8.2016 are null and void and not binding on the plaintiff?

As there is no relief claimed by the plaintiff to declare the

Registered Gift deed bearing No.743/1965 dated 22.3.1965, Registered

Gift Deed dated 2786/74 dated 25.7.1974 and Registered sale deed

No.875/33 dated 18.2.1983 as sham and nominal and fabricated documents and Registered sale deed No.894/2017 dated 14.2.2017 and

Registered sale deed No.6361/16 dated 8.8.2016 are null and void and not binding on the plaintiff , as she only claimed partition. Hence there is no need to answer these issues. Accordingly struck off.

13. ISSUE NO.6:

Whether 1 st defendant become the absolute owner of Ac.3.00 cents of land in Sy.No.21 by virtue of the Registered Gift deed

dated 19.3.1965 (Doc.No.743/1965) executed by Saddala

Yellappa?

As per Ex.A1 Gift deed, her grandfather executed Ex.A1 to 1st defendant, as well as unborn male children as D1 is minor by the date 16 of Ex.A1, for which there is no dispute, Defendant no.2 is brother of

Defendant no.1, so being male children of Saddala Chinna Ayyanna the property devolves on Defendants 1 and 2. Accordingly, this issue is answered.

14. ISSUE NO.11: To what relief?

In view of my findings on issues 1 to 10 and Additional Issue, the suit claim is not proved and suit is liable to be dismissed.

In the result, the suit is dismissed with costs and office is directed to prepare the decree after collecting the deficit court fee from the plaintiff U/s.34(1) of A.P.Court Fees and Suit Valuation Act.

Dictated to the Stenographer Gr.1, after transcription, corrected and pronounced by me in open Court this the

14th day of November, 2024.

Judge,

Family Court-cum- IV Additional District Judge, Kurnool.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED.

FOR PLAINTIFFS:FOR DEFENDANTS:

PW.1: M.Lingeswaramma.DW.1 B.Suseelamma.

Exhibits marked

FOR PLAINTIFFS: Ex.A1: Certified copy Registered Gift Deed dated.19.3.1965 Ex.A2: Office copy of Lawyer’s notice dt.29.4.2016

Ex.A3: Original valuation certificate dated.26.5.2016 Ex.A4: Certified copy of Registered Sale Deed document bearing No.894/2017, dt.14.2.2017 Ex.A5: Certified copy of Registered Sale Deed No.6361/2016, dt.8.8.2016, executed by D3.

FOR DEFENDANTS:

Ex.B1: Certified copy of gift deed dated.19.3.1965 (Doc.No.743/1965) along with its readable copy, executed by Saddala Yellappa, gifting Ac.3-00 cents of land in Sy.No.21 in favour of Nagendra Babu ( 1st defendant therein) and also to the male children those would be born to Chinna Ayyanna in future.

17

Ex.B2: Certified copy of gift deed dated.25.6.1974(Doc.No.741/1965) along with its readable copy, executed by Saddala Yellappa, S/o Thippanna, gifting Ac.3-16 cents in Sy.No.18 and Ac.2.0 cents in Sy.No.21 in favour of Saddala Lakshmi Devi.

Ex.B3: Certified copy of gift deed dated.25.7.1974 (Doc.No.2786/1974) executed by Saddala Chinna Ayyanna, S/o Yellappa for Ac.1-00 cents of land on southern side in favour of 3rd defendant.

Ex.B4: Certified copy of gift deed dated.25.7.1974 (Doc.No.2785/1974) along with its readable copy executed by Lakshmi Devi in favour of the 3rd defendant for Ac.1-00 cents of land in Sy.No.21

Ex.B5: Certified copy of registered sale deed dated.8.8.2016 (Doc.No.6361/2016) executed by 3rd defendant in favour of Shiva Bhaskar Reddy and P.Moulali as partners of M/s M.S.S.Real Estates, Kurnool

Ex.B6:Certified copy of registered sale deed dated.14.2.2017(Doc.No.932/2017) executed by 3rd defendant in favour of B.Shiva Bhaskar Reddy and P.Moulali as partners of M/s.M.S.S.Real Estates, Kurnool.

Ex.B7: Certified copy of registered rectification deed dated.12.12.2022 (Doc.No.19260/2022) executed by 3rd defendant in favour of B.Shiva Bhaskar Reddy and P.Moulali as partners of M/s M.S.S.Real Estates, Kurnool

Ex.B8: Certified copy of registered sale deed dated.18.2.1983 (Doc.No.875/1983) along with its readable copy executed by the defendants 1 and 2 in favour of Ayyamma @ Lakshmamma

Ex.B9: Certified copy of registered sale deed dated.23.2.1983 (Doc.No.929/1983) along with its readable copy executed by the defendants 1 and 2 in favour of Ayyamma @ Lakshmamma

Ex.B10:Certified copy of registered sale deed dated. 29.8.1983 (Doc.No.4980/1983) along with its readable copy executed by Ayyamma @ Lakshmamma to N.Prameelamma and others

Ex.B11:Certified copy of registered gift deed deed dated.15.9.2008 (Doc.No.8492/2008) in favour of Smt. Venkata Ramanamma

Ex.B12: Certified copy of registered sale deed dated.27.7.2016 (Doc.No.6029/2016) executed by Venkata Ramanamma in favour B.Shiva Bhaskar Reddy and P.Moulali, as partners of M/s M.S.S. Real Estates, Kurnool

Judge,

Family Court-cum- IV Additional District Judge, Kurnool.

IV ADJC, KNL.OS 109-15

IN THE COURT OF THE IV ADDITIONAL DISTRICT JUDGE, KURNOOL.

Present: Smt. G.Prathibha Devi, IV Additional District Judge, Kurnool.

Thursday, the 3rd day of November, 2022.

O.S.No.109 of 2015

S.Mazharuddin … Plaintiff

Versus

1. R.Pradeep Kumar

2. Bujunti Nageswar Reddy

3. B.Venkata Lakshmi

4. Erigela Suryanarayana Reddy… Defendants.

* * *

This suit is came up before me on 20-10-2022 for final hearing in the presence of Sri M.D.Y.Jogaiah Sarma, Advocate for the plaintiff, Sri A.Siva Ramaiah and Sri N.Venkata Rao, Advocates for Defendants No.2 and 3 and Sri N.Gurusankaraiah, Advocate for the Defendant No.4, Defendant No.1 remained exparte , upon hearing both sides, after perusing the material available on record, and after having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1.This suit is filed by the plaintiff against Defendants No.1 to 4 seeking the relief of specific performance of the agreement of sale dated 3-5-2010 directing the defendants to execute a registered sale deed favour of the plaintiff in terms of the agreement and for costs of the suit.

2.Brief averments of the plaint are that :

(a)The 1st defendant is absolute owner of the plaint schedule plot and he has executed agreement of sale-cum-General Power of Attorney in favour of the 2nd defendant in respect of the properties belonging to the 1st defendant. As G.P.A. Holder of the 1st defendant, has agreed to sell the plaint schedule property, which is an extent of 8.4 cents at Rs.3,50,000/- per cent and accordingly, executed an agreement of sale dated 3-5-2010 in favour of the 2 IV ADJC, KNL. OS 109-15 plaintiff. The 2nd defendant has received full consideration as payable under the agreement i.e., Rs.29,40,000/- on the date of the agreement itself and also delivered the vacant possession. After the execution of the agreement of sale

dated 3-5-2010, the defendant has handed over all the original link documents,

which are enclosed to the plaint. Subsequent to the execution of agreement of sale and delivery of the possession, the plaintiff has been orally demanding 2nd defendant to perform his remaining part of contract by executing registered sale deed, but he postponed the same on one pretext or the other. After such repeated oral demand, the 2nd defendant has executed a written document

dated 5-4-2013 seeking time to perform his part of the contract by one year

from that date. Even after the completion of extended period of one year, the 2nd defendant did not come forward. Later, the plaintiff came to know that 2nd defendant has created a registered nominal sale deed dated 18-12-2014 in respect of a portion of the plaint schedule property in favour of the 3rd defendant, who is none other than his wife. The plaintiff got issued legal notice on 14-3-2015. Inspite of receiving notice, the defendants kept quite and not came forward to register the sale deed and alleged registered sale deed is not binding on the plaintiff.

(b)Pending the suit, the defendants No.2 and 3 by violating interim orders of status-quo granted in the above suit, had executed a sham and nominal registered sale deed dated 7-10-2016 in favour of Erigela Surya

Narayana Reddy and he was impleaded as 4th defendant in the suit. Hence, the plaintiff f prays the Court to direct the defendants No.1 to 4 to execute registered sale deed in favour of the plaintiff.

3.The 1st defendant remained exparte. The 2nd defendant filed written statement. Brief averments of the written statement are : The plaintiff was the mediator-cum- Broker, who has arranged sale transaction about 10 years back.

3 IV ADJC, KNL. OS 109-15

The plaintiff and his friend Janardhan Reddy sold his house flat bearing No.GF2 in Balaji Towers to the 2nd defendant and executed sale deed. With the said acquaintance, he arranged sale transaction of plaint schedule property with the 1st defendant. Though the total consideration was paid to the plaintiff, which is recited in the agreement of sale-cum-General Power of attorney that balance of Rs.1,000/- consideration was payable to the 1st defendant, except on the date of executing agreement of sale-cum-power of attorney, the 2nd defendant did not deal with the other aspects of the sale believing the plaintiff. The plaintiff got sale agreement-cum-power of attorney from the office of the Sub-

Registrar and collected link documents from the 1st defendant, committed breach of trust and forged the agreement of sale, with an intention to defeat the rights of the 2nd and 3rd defendants. The very purpose of the obtaining the agreement of sale-cum-power of attorney from the 1st defendant was with an intention to sell the plaint schedule property to the 3rd parties. As there was no market for about 4 years, the 2nd defendant sold half of the land to 3rd defendant, as he required money. The 1st defendant and the plaintiff colluded and along with the alleged attestors and scribe forged the said agreement of sale dated 3-5-2010. While forging the document, the signature of the 2nd defendant was forged. The 1st defendant is not absolute owner of the plaint schedule property. The 2nd defendant entered into the agreement of sale dated 11-8-2009 for purchase of the plaint schedule property for Rs.12,20,000/- and also paid the same. The 1st defendant executed agreement-cum-power of attorney agreeing to alienate the plaint schedule property to the 2nd defendant and also authorising the 2nd defendant to sell or alienate in respect of plaint schedule property. The allegation that on 5-4-2013, the 2nd defendant executed time extension agreement is not correct. It is also forged one. Since, he has got right to alienate by receiving sale consideration of Rs.12,13,000/-, the 2nd 4 IV ADJC, KNL. OS 109-15 defendant has executed sale deed in favour of the 3rd defendant, though the 3rd defendant is wife of the 2nd defendant, she is having her own establishment and properties. She owns Polishing factory under the name and style of Mamata

Stones at Bethamcherla and Ac.8.00 cents land. Accordingly, he has executed registered sale deed in favour of the 3rd defendant and she is bonafide purchaser. The plaintiff has no capacity to pay sale consideration of

Rs.29,40,000/- and the plaintiff is not entitled for any relief. The 3rd defendant adopted the written statement of 2nd defendant.

4.The 4th defendant filed written statement. The brief averments of the written statement of 4th defendant are that : The allegation in para 7(a) of the plaint that 2nd and 3rd defendants executed sham and nominal registered sale deed dated 7-10-2016 in favour of this defendant in respect of the plaint schedule property is false. This defendant is bonafide purchaser of the plaint schedule property for valuable consideration. Having purchased the same under registered sale deed dated 7-10-2016 from 2nd and 3rd defendants and also came into possession of the property, this defendant is not aware of the pendency of the above suit on the date of his purchase and defendants 2 and 3 also did not inform about the pendency of the suit. The defendant made all reasonable enquiries regarding the right, title and possession of the defendants 2 and 3 and having satisfied about their title, he bonafidely purchased the same and prays the Court to dismiss the suit with costs.

5.Based on the above pleadings, the following issues are settled for trial :

1) Whether the plaintiff is entitled for specific performance of the agreement of sale dated 3-5-2010 executed by the 2nd defendant as the G.P.A. Holder of the 1st defendant in respect of the suit schedule property ?

2) Whether the registered sale deed dated 18-12-2014 executed by the 2nd defendant in favour of the 3rd defendant is valid in law and binding on the plaintiff ?

5 IV ADJC, KNL. OS 109-15

3) Whether the defendants 3 and 4 are also liable to join the defendants 1 and 2 in execution of registered sale deed in favour of the plaintiff ?

4) To what relief ?

6.On behalf of the plaintiff, PW.1 to 3 witnesses are examined and Ex.A.1 to A.10 documents are marked. On behalf of the defendants, 1st defendant remained exparte, 2nd defendant is examined as DW.1 and Ex.B.1 and B.2 documents are marked.

ISSUE NO.1:

7.The learned plaintiff counsel argued that 1st defendant is owner of the plaint schedule property. He has executed general power of attorney for sale of property to 2nd defendant in respect of plaint schedule property.

Accordingly, 2nd defendant executed agreement of sale on 3-5-2010 and received entire sale consideration and also delivered possession and also handed over the original link documents, but not coming forward to register sale deed in favour of the plaintiff. Hence, the plaintiff is constrained to issue legal notice. Inspite of receiving legal notice, the defendants kept quite and also 2nd defendant created the sale deed in favour of his wife 3rd defendant, in order to knock away the property and sale deed executed by 2nd defendant in favour of 3rd defendant is also not binding on the plaintiff and also argued that pending suit, 4th defendant purchased the plaint schedule property. Hence, the plaintiff has taken steps and impleaded 4th defendant and Section 52 of

Transfer of Property Act lis-pendency clearly applicable to the present case in hand as pending suit, 4th defendant purchased the property. Hence, prayed the

Court to decree the suit.

8.On the other hand, the learned 2nd and 3rd defendants’ counsel argued that the plaintiff has not purchased the property and all the documents are created for the purpose of the suit and Court has to see equities while dealing 6 IV ADJC, KNL. OS 109-15 with the specific performance of the agreement of sale and prays to dismiss the suit.

9.In spite of filing written statement, the 4th defendant not adduced any evidence nor adduced arguments on his side.

10.The plaintiff examined himself as PW.1 and reiterated the averments in the plaint and deposed that Ex.A.2 is registered agreement of sale-cum-General

Power of Attorney dated 11-8-2009 executed by the 1st defendant in favour of the 2nd defendant. Accordingly, the 2nd defendant entered into original agreement of sale dated 3-5-2010 executed by the 2nd defendant in favour of the plaintiff, which is marked as Ex.A.1 and also further deposed that on the date of execution of Ex.A.1, the 2nd defendant has handed over the link documents I.e, Ex.A.3 to A.6. Ex.A.3 is the registered sale deed executed by

Nagella Ram Chandra Rao and another in favour of the 1st defendant and also deposed that when the 2nd defendant has not come forward to execute registered sale deed, he got issued legal notice under Ex.A.9. Ex.A.10 is the postal receipts. But the defendants did not come forward and in the meantime, 2nd defendant executed a registered sale deed dated 8-12-2014, which is a sham and nominal document in favour of his wife i.e., D.3 in order to defeat the rights of the plaintiff. The document is marked as Ex.A.8 and also the further contention of the plaintiff is that pending suit, 2nd and 3rd defendants violating the status-quo orders, executed sale deed in favour of 4th defendant. Inspite of filing written statement, 4th defendant not contested the suit and the sale deed executed by the 2nd and 3rd defendants in favour of 4th defendant is not bidning on the plaintiff in view of Section 52 of the Transfer of Property Act as pending the suit, 4th defendant purchased the property.

11.The 2nd defendant examined himself as DW.1 and filed chief-affidavit, reiterating his averments in the chief-affidavit, that the plaintiff is only 7 IV ADJC, KNL. OS 109-15 mediator and real estate agent and he arranged the sale transaction between the plaintiff and the 1st defendant and later taking advantage of the link documents and original sale deed-General Power of Attorney dated 11-8-2009 in his custody, created sale agreement dated 3-5-2010 and he did not receive sale consideration of Rs.29,40, 000/- and also not delivered possession and alleged time extension agreement dated 5-4-2013 is also fabricated. The initial burden is always on the plaintiff. As seen from the cross-examination of PW.1 by the learned Advocate Commissioner, he denied the suggestion that he is working as Real Estate Broker and deposed that 1st defendant is Engineer in

Electricity Department in Kurnool. PW.1 is cross-examined by the learned 2nd and 3rd defendants counsel without the pleading by giving suggestions about one Auditor Khan that he borrowed amount from PW.1 by executing pronote and at the instance of the plaintiff, 2nd defendant lent money to Auditor Khan under pronote. Therefore, without pleadings, any amount of cross-examination cannot be taken into consideration. PW.1 also pleaded ignorance about the issuing of legal notice to 2nd defendant. Absolutely, there is no pleading in respect of the suggestions put to PW.1 and PW.1 clarified that he obtained sale agreement from 2nd defendant. PW.1 further deposed that there is bore-well in the site and also the plaint schedule site enclosed with compound wall and he got constructed the wall in the year 2014. He denied the suggestion that 2nd defendant constructed the compound wall in the year 2014. There are suggestions to PW.1 that whether the plaintiff has shown the purchase in his income-tax returns, but he deposed that he has not shown the payment in the income tax returns and further deposed that extension agreement is also prepared at Kurnool. He denied the suggestion that Ex.A6 extension agreement is brought into existence in order to grab the plaint schedule property.

8 IV ADJC, KNL. OS 109-15

12.In order to support his case, the plaintiff has taken steps and examined

PW.2. According to PW.2, he is present at the time of execution of agreement of sale under Ex.A.1 and he is one of the attestors and further supported the case of the PW.1 that after execution of sale deed, 2nd defendant did not come forward to register sale deed and also executed time extension agreement on 5-4-2013. He is also attestor to the document. As seen from the cross- examination of PW.2, he worked as book-binder in a private printing press. On the request of PW.1, he went to Sub-Registrar’s office and he found 2nd defendant and Khaleel at the office of Document writer and he further deposed that Rs.29,40,000/- was paid before him and again on 5-4-2013, at the request of the plaintiff, he went there. The 4th defendant only gave suggestion to PW.2 that the suit schedule property is in the possession of 4th defendant, but PW.2 pleaded ignorance.

13.PW.3 categorically deposed that the plaintiff, Defendants No.1 and 2 are his friends. Initially, he purchased suit schedule property from the 1st defendant under agreement of sale and he paid Rs.3,00,000/- and the 1st defendant had handed over entire set of link documents to him. In the year 2009, he dropped the idea of obtaining registered sale deed from 1st defendant. In the meantime, 2nd defendant came forward to purchase the said property from 1st defendant and the 2nd defendant negotiated and purchased the suit schedule property from the 1st defendant under registered agreement of sale-cum-General Power of Attorney and collected link documents and accordingly, he received

Rs.3,00,000/- directly from the 2nd defendant. As seen from the cross- examination of PW.3, he is practicing as Auditor. He pleaded ignorance that plaintiff worked as Real Estate Agent. The 1st defendant is Engineer in

Electricity Department and further deposed that 1st defendant raised foundation in the plaint schedule site to basement level. He pleaded 9 IV ADJC, KNL. OS 109-15 ignorance about the sale transaction between 1st and 2nd defendants and further deposed that after he received Rs.3,00,000/- directly from 2nd defendant, he has no dealings with defendants 1 and 2. He denied the suggestion that at the instance of PW.3, the plaintiff and 2nd defendant entered transaction with 1st defendant and also they retained original title deed. He denied further suggestion that due to confidence on PW.3, the plaintiff and 2nd defendant kept original documents with them, but as already stated, there is no pleading in the written statement filed by 2nd defendant about the PW.3. In order to discharge the burden, the plaintiff might have examined PW.3 to give clarification as it is the case of the 2nd defendant that PW.3 is the person behind entire transaction, but in view of the evidence of PW.3, that is clarified.

14.The defendant has taken specific plea of forgery. In view of the examination of PW.2, one of the attestor, the plaintiff has discharged his burden. As seen from the cross-examination of DW.1 by the learned plaintiff counsel, he admitted that he purchased the plaint schedule property from D1 under Ex.A.2 and when Ex.A.8 registered sale deed dated 8-12-2014 is confronted to DW.1, he admitted his signature therein and also admitted his signature on Ex.A.2 at page 6, i.e., agreement of sale-cum-General Power of

Attorney and DW.1 is confronted with the written statement of DW.1, he admitted his signature and when witness is confronted with Ex.A.1, he admitted his signature thereon and also admitted signature on Ex.A.7. In view of the cross-examination by DW.1, we can safely come to a conclusion that except taking plea of forgery, as it is his specific case that the plaintiff has forged the signature of 2nd defendant and created Ex.A.1 agreement of sale and also

Ex.A.7, but in view of cross-examination of DW.1 and in view of his clear admission as admitted facts need not be proved as contemplated under Section 58 of Indian Evidence Act. Now, the burden shifts on the defendant and he 10 IV ADJC, KNL. OS 109-15 further stated as per Ex.A.1, he has to execute register sale deed in favour of the plaintiff and also admitted that he has executed sale deed Ex.A.8 in favour of 3rd defendant for part of plaint schedule property after execution of Ex.A.1.

But he denied the suggestion that pending suit, he executed registered sale deed in favour of 4th defendant and further pleaded he has right to execute registered sale deed in terms of Ex.A.1 along with 2nd and 3rd defendant. In view of cross-examination of DW.1 by the learned plaintiff counsel, the plaintiff is able to establish his case. As seen from the cross-examination of DW.1 by the learned counsel for 4th defendant,he denied the suggestion that DW.1 sold property to 4th defendant, but admitted that the plaintiff filed contempt petition against DW.1 on the file of the Hon’ble High Court of A.P., at

Amaravathi and the same is pending. He denied the suggestion that 4th defendant is in possession and enjoyment of the plaint schedule property.

15.In view of the cross-examination of DW.1, the plaintiff discharged his burden. Except taking the plea of forgery, 2nd defendant failed to prove the same and even though, 4th defendant filed written statement, but not entered into witness box and apart from that,it is the case of the plaintiff that pending suit, he purchased the property. Considering all these aspects, the plaintiff has established that 2nd defendant executed Ex.A.1 and not come forward to execute registered sale deed. Hence, the plaintiff is entitled for the relief.

Accordingly, the issue No.1 is answered in favour of the plaintiff.

ISSUE NO.2 AND 3 :

16.DW.1 deposed that he has executed sale deed dated 8-12-2014 in favour of 3rd defendant. According to the plaintiff, it is a nominal document and only to defeat the rights of the plaintiff, it is executed. During the cross-examination,

DW.1 is confronted with the Ex.A.8. No doubt, this is a registered sale deed. But the 3rd defendant is no other than the wife of the 2nd defendant. So execution 11 IV ADJC, KNL. OS 109-15 of sale deed by the 2nd defendant in favour of 3rd defendant creates some suspicion and in view of the cross-examination of DW.1, now, DW.1 is ready to execute registered sale deed along with 3rd defendant who is no other than his wife and hence, this issue is also answered against the 2nd defendant and the sale deed executed by the 2nd defendant in favour of 3rd defendant is not binding on the plaintiff.

ISSUE NO.3:

17.It is the case of the plaintiff that pending suit, 4th defendant purchased the property and according to Section 52 of Transfer of Property Act, if any property is sold pending litigation, it is non-est in law. Apart from that, sale deed executed by the 2nd and 3rd defendants in favour of 4th defendant is not filed into the Court and 4th defendant not entered into witness box. Hence, the

Court can draw adverse inference against 4th defendant except filing of written statement, he has not adduced any evidence.

18.In view of admission by DW.1 that now he is ready to execute registered sale deed and 4th defendant is also added as party, therefore, all the defendants are jointly and severally liable to execute registered sale deed in favour fo the plaintiff. Accordingly, this issue is also answered in favour of the plaintiff.

ISSUE NO.4:

19.IN THE RESULT, the suit is decreed with costs, directing the defendants 1 to 4 to execute registered sale deed in favour of plaintiff in terms and conditions of the agreement of sale dated 3-5-2010.

Dictated to the Stenographer Grade-I, transcribed and typed by him,

corrected and pronounced by me in the open Court on this the 3 rd day of November 2022.

IV Additional District Judge, Kurnool.

12 IV ADJC, KNL. OS 109-15

Appendix of Evidence Witnesses examined For Plaintiff For Defendants

P.W.1: S.MazaharuddinDW.1: B.Nageswar Reddy

PW.2: K. Naga Srinivasulu

PW.3: Shafeeq Ahmed Khan Batt

Exhibits marked For Plaintiff

Ex.A.1: Original Agreement of sale deed dated 3-5-2010 executed by the 2nd defendant in favour of the plaintiff. Ex.A.2:Registered agreement of sale-cum-GPA deed dated 11-8-2009 (Doc.5357/2009) executed by 1st defendant in favour of 2nd defendant. Ex.A.3: Registered sale deed dated 31-1-2004 (Doc.No.1080/2004) executed by Nagella Ram Chandra Rao and another in favour of the 1st defendant. Ex.A.4: Registered sale deed dated 29-12-2004 (Doc.No.14289/2004) executed by K.Lodda Yellappa and others in favour of 1st defendant. Ex.A.5: Registered sale deed dated 31-7-1993 (Doc.No.4460/1993) executed by Kalle Subbamma in favour of T.Parvathamma Ex.A.6: Registered sale deed dated 14-7-1983 (Doc.No.4012/1983) executed by K.Nagappa in favour of Nagella Ramachandra Rao and others. Ex.A.7: Original Extension of agreement dated 5-4-2013 executed by the 2nd defendant in favour of the plaintiff. Ex.A.8: Certified copy of Registered sale deed dated 8-12-2014 executed by the 2nd defendant in favour of 3rd defendant.

Ex.A.9: Office copy of legal notice dated 14-3-2015

Ex.A.10: Postal receipts 3 Nos.

Ex.A.11:Return postal covers.

For Defendants : Ex.B.1: Registered sale deed dated 3-10-2005 (Doc.No.2764/2005) Ex.B.2: Reply notice dated 28-3-2015 issued by 2nd defendant to the counsel for plaintiff.

IV Additional District Judge, Kurnool.

13 IV ADJC, KNL. OS 109-15

IN THE COURT OF THE IV ADDITIONAL DISTRICT JUDGE, KURNOOL.

Present: Smt. G.Prathibha Devi, IV Additional District Judge, Kurnool.

Thursday, the 3rd day of November, 2022.

O.S.No.109 of 2015

S.Mazharuddin, S/o.late Abdul Azeez @ Azeez Miah, Muslim, aged 55 years, contractor, R/o.D.No.41/320-8, Kothapeta, Kurnool Town and District. … Plaintiff

Versus

1. R.Pradeep Kumar, S/o.R.Krupanandam, Hindu, aged 45 years, Govt.Employee, H.No.40/668-A, Dharmapeta, Kurnool.

2. Bujunti Nageswar Reddy, S/o.B.Eswar Reddy, Hindu, aged 48 yearsll, H.No.3/77, Near New RTC bus stand, Bethamcherla village and Mandal, Kurnool District.

3. Smt.B.Venkata Lakshmi, W/o.Bujunti Nageswar Reddy, Hindu, House wife, H.No.3/77, Near New RTC busstand, Bethamcherla village and Mandal, Kurnool District.

4. Erigela Suryanarayana Reddy, S/o.E.Pedda Boreddy, Hindu, aged 50 years, S.Lingamdinne village, Allagadda Mandal, Kurnool District.… Defendants.

This suit is filed by the plaintiff against Defendants No.1 to 4 seeking the relief of specific performance of the agreement of sale dated 3-5-2010 directing the defendants to execute a registered sale deed favour of the plaintiff in terms of the agreement and for costs of the suit.

Plaint presented on 2.9.2015 and filed on 23.9.2015. For the purpose of court fee and jurisdiction, the suit is valued at Rs.29,40,000/- and Court fee of

Rs.31,826/- is paid U/s.39(a) of APCF & SV Act.

Cause of action for the suit arose on 3.5.2010 the date of sale agreement, on 5.4.2013 the date of execution of time extension agreement, on the date of oral demands made by the plaintiff, on 14.3.2015 when the plaintiff issued legal notices to the defendants. As the plaint schedule property is situated at Kallur village,Kurnool Municipal Corporation Limits, this court has got jurisdiction to entertain the suit.

14 IV ADJC, KNL. OS 109-15

This suit coming on 20-10-2022 for final hearing in the presence of

Sri M.D.Y.Jogaiah Sarma, Advocate for the plaintiff, Sri A.Siva Ramaiah and

Sri N.Venkata Rao, Advocates for Defendants No.2 and 3 and Sri

N.Gurusankaraiah, Advocate for the Defendant No.4, Defendant No.1 remained exparte, this court doth order and decree as follows:

1. That the suit be and same is hereby decreed;

2. that the defendants 1 to 4 are hereby directed to execute the registered sale deed in favour of plaintiff in terms and conditions of the agreement of sale dated 3.5.2010.

3. that the defendants 1 to 4 do pay to the plaintiff a sum of Rs.1,83,751/- being the costs of the suit. Given under my hand and the seal of the court on this the 3rd day of November,

2022.

IV Additional District Judge, Kurnool.

Memo of Costs

For Plaintiff For D2 & D3For D4 Rs.Rs. Stamp on plaint 31,826-00-- Stamp on vakalath 2-002-002-00

Stamp on process 323-000-000-00 Type charges100-00100-000-00

Commissioner’s fee1,500-000-000-00 Advocate’s Fee (Sr)1,50,000-001,50,000-00Nil. (not certified) (Jr)(Restricted to 50,000-00 maximum limit) (Restricted to maximum limit) Total :Rs.1,83,751-002,00,102-002-00

SCHEDULE

Vacant house plot bearing No.27 along with the vacant site situated to its West, forming part of the approved lay out in

L.P.no.313/79, laid in Sy.Nos.417/A1, 417/B1A1/A, 418/B-1A and 413D of Kallur village limits now in ward No.51 of Kurnool Municipal

Corporation limits, Kurnool S.D., Kurnool R.D.

Measuring:

Item No.1 - East – West= 50.63 feet.

15 IV ADJC, KNL. OS 109-15

North – South= 55.14 feet.

16 IV ADJC, KNL. OS 109-15

Item No.2: East – West= 0 feet on North North – South= 31.58 feet on South North - South= 51.12 feet on East, and North – South = 55.14 feet on West.

Total Extent – 8.4 cents.

Bounded on:

East - by 60 feet road; West – By land of others; North – By land of others, and South – By remaining portion of Plot No.27.

IV Additional District Judge, Kurnool.

1 IV ADJ COURTCrl.Appeal.No.6/2022

IN THE COURT OF THE JUDGE, FAMILY COURT -CUM- IV

ADDITIONAL DISTRICT AND SESSIONS JUDGE, KURNOOL.

Present: Smt. G.Prathibha Devi,

Judge, Family Court, Kurnool-cum-

IV Additional District and Sessions Judge, Kurnool.

Monday, the 31st day of October, 2022.

Criminal Appeal No.6/2022

From what court the appeal isSpl.Judicial Magistrate of I Class [for preferred.Proh & Excise], Kurnool No.of the case in that court.CFR.NO.2138/2021 [UN-NUMBERED DVC] No.of the appealCrl.Appeal No.6/2022 Name and description of the Smt.Prashanthi Shavi, D/o.K.Mallaiah, appellants/complainantsW/o.Shavi Raghavendra, Hindu, aged 35 years, Software Engineer. Presently residing at R/o.Julichersstrabe 150, Aachen, Germany. Rep. by her Special Power of Attorney Holder, her father K.Mallaiah S/o.Late K.Hussainappa, aged about 70 years, R/o.H.No.4/121, Plot No.6768, Flat No.403, Adibala Enclave, New Postal colony, Venkataramana colony,Kurnool.

Name of the Respondents1. Shavi Raghavendra, S/o.Shavi Jagadeshappa, Hindu, aged about 36 yearsl, C/o.Marcel Verhoog, Endenerstrabe, 4,42538, Gangelt, Hastenrath, Germany.

2. Shavi Jagadeshappa, Hindu, aged about 66 years, R/o.H.No.8, Ward No.8, Shavi Krupa Sakkari Karadappa Street, Near Kambli Bazar, Bellar, Bellary District. Karnataka State.

3. Shavi Pushpavathi, Hindu,W/o. Shavi Jagadeshappa, aged about 57 years, R/o.H.No.8, Ward No.8, Shavi Krupa Sakkari Karadappa Street, Near Kambli Bazar, Bellar, Bellary District. Karnataka State.

4. Shavi Shruthi, D/o.Shavi Jagadeshappa, W/o.Naveen Bhaskar Shetty, Hindu, aged about 32 years, R/ o.Paris, France. Presently at R/o.H.No.8, Ward No.8, Shavi Krupa Sakkari Karadappa Street, Near Kambli Bazar, Bellar, Bellary District. Karnataka State.

5. Shavi Keerthi, D/o.Shavi Jagadeshappa, W/o.Mohanthesh Kanike, aged about 30 years, R/o.Bangalore, Karnataka State. Presently at:R/o.H.No.8, Ward No.8, Shavi Krupa Sakkari Karadappa Street, 2 IV ADJ COURTCrl.Appeal.No.6/2022

Near Kambli Bazar, Bellar, Bellary District.

Section/Sentence/Order of theIn the result, the petition is rejected lower court. Whether confirmed, modifiedIn the result, the criminal appeal is or revised and if modified, the dismissed confirming the order modification. passed by the learned Special

Judicial Magistrate of I Class [ for

Proh. & Excise], Kurnool in CFR.2138/2021 in Un-numbered DVC dated 2.12.2021. However no costs.

Date of presentation11.1.2022 Date of filing 18.1.2022 For hearing by the court of 19.1.2022 appeal. Date of bail bonds, if the --- appellant let out on bail. Date of appellant/complainant---- order to be appeared. Date of hearing 17.10.2022 Date of order/Judgment 31.10.2022.

This appeal is coming on 17.10.2022 for final hearing before me in the presence of Sri Pokala Sreenivasulu, advocate for the

Appellant/petitioner, upon hearing the arguments of petitioner, perusing the material on record and having stood over for consideration till this day, this Court made the following:-

JUDGMENT

Aggrieved by the orders passed in CFR.2138/2021 dated 2.12.2021 passed by Spl.Judicial Magistrate of I Class [for Proh. &

Excise], Kurnool, the petitioner/appellant preferred appeal under Section 29 of Domestic Violence Act to set aside the orders and direct the

Lower Court to receive the complaint on file by issuing process against the respondents 1 to 5.

2. The Appellant and respondents herein were the complainant and respondents before the trial Court, but the complaint was rejected at

CFR stage by the learned Magistrate, against which the present appeal preferred to set aside the order passed by the learned Magistrate and 3 IV ADJ COURTCrl.Appeal.No.6/2022 directing the Magistrate to take cognizance of complaint U/s.12 of

Domestic Violence Act against R1 to R5, hence no notices were ordered to the respondents in this appeal.

3. For convenience of understanding and discussion the parties herein after referred to as the complainant only as arrayed in

CFR.2138/2021 (unnumbered DVC) before the trial court.

4. Grounds of Appeal are :

i) The order of the trial Court is contrary to law The Lower court ought to have appreciated that the appellant has filed a detailed complaint u/s.12 of Protection of Women from

Domestic Violence Act before giving finding that it appears that there is no domestic relationship between the petitioner and respondents 1 to 5, therefore in the absence of domestic relationship between the petitioner and respondent, the question of Domestic violence does not arise.

ii) The Lower Court failed to appreciate that marriage took place at Kurnool and the demand of the dowry was also made by the respondents at Kurnool and dowry paid at Kurnool and

additional demand of dowry was also made to the parents at

Kurnool that itself is sufficient to show that there is Domestic

Violence and also the petitioner has got temporary residence at Kurnool and also failed to appreciate that the appellant/complainant and 1 st respondent returned to India on 11.10.2017 and on the very next day respondents 1 to 5 have forced the appellant to ask and bring additional dory of Rs.50 lakhs from her parents by saying that they have contacted the debts for the marriage of 4 th respondent and for the future marriage expenses of 5 th respondent.

iii) The Lower Court failed to appreciate that the appellant and 1 st respondent again returned to India in the month of November, 2018 and respondents 2 and 3 have abused them in filthy language and also beaten and also dowry harassment case is pending as C.C.No.60/2021 on the file of I Addl.Judicial 4 IV ADJ COURTCrl.Appeal.No.6/2022

Magistrate of I Class, Kurnool and respondents 2 and 3 have

continued their harassment for additional dowry even when they visited Germany and also beat appellant on 16.8.2019.

iv) The question of jurisdiction u/s.27 is totally different from the

Domestic Violence. In fact the Domestic Violence has been in

Sec.3 very elaborately and in the explanation to Section , it has been stated that “For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes domestic violence under this section, the overall facts and the circumstances of the case shall be taken into consideration”. In fact the complainant made out a case, the jurisdictional texture of the

Foreign Courts is totally different. A woman cannot be forced to subject herself without her willingness to the secular courts abroad, where only consideration would be equitable partition rather than sanctity of the marriage.

Hence, prays the Court to allow the appeal as prayed for.

5.After numbering of the appeal, no notice is ordered to R1 to R5, since the appellant/complainant preferred this appeal for rejection of the complaint.

6.Heard the learned counsel appearing for appellant.

7.Based on the grounds urged in the appeal and on perusal of the impugned order passed at CFR stage, the only point that arise for determination is:

“Whether the appellant is entitled for the relief as prayed

for ?”

8. POINT :-

Perused the record. The appellant is the Special Power of Attorney

Holder of the complainant who is his daughter. As the appellant is working as software engineer and presently residing at Germany, through her father she filed Domestic Violence petition under Section 12 5 IV ADJ COURTCrl.Appeal.No.6/2022 of Protection of Women from Domestic Violence Act, 2005 against the respondents 1 to 5. As complainant filed 75 pages complaint, Appellate court forced to go through the entire complaint and as seen from the averments of the complaint in brief, she alleged that marriage of the petitioner and respondent no.1 took place on 24.12.2015. Soon after her marriage she along with R1 left to Germany as he is working as software engineer since many years and she was harassed by the respondent no.1 at Germany. Respondents 2 and 3 are the parents-in- law of the complainant and respondents 4 and 5 are the sisters-in-law of complainant and 1st respondent is her husband. They have presented 200 grams of gold and Rs.5 lakhs cash as demanded by the respondent and the same is paid at Kurnool and performed marriage on 24.12.2015.

Later they left to Bangalore as he was planning to leave India in next few days and instructed the petitioner to stay at Bangalore along with his parents and he left to Germany. Petitioner along with her in-laws came to Bellary and on getting Visa the petitioner joined 1st respondent on 13.04.2016 at Germany.

b.1st respondent visited India to attend his friend marriage leaving the petitioner in a new country. Later the petitioner obtained job as a Java developer at Germany and later 1st respondent opened a joint account with the sole purpose of crediting the salary amounts of the petitioner. Within four or five months of the marriage, the 1st respondent and his family members started demanding additional dowry of Rs.50 lakhs. They expressed their inability to pay. Since January 2017 1st respondent started beating the petitioner, the petitioner was careful of her and being in a foreign country and there was no one to look for protection. In February, 2017 they shifted to new house in Germany but 1st respondent continued his harassment. 1st respondent joined in 6 IV ADJ COURTCrl.Appeal.No.6/2022

Art of Living and used to invite the members of the Art of Living

Fellowship and she was made to cook, serve and clean to his friends who are totally strangers to the petitioner, in spite of her attending job.

On 11.10.2017 they returned to India, 1st respondent took the petitioner to Bellary where the Satyanarayana Vratam was performed, on the very next day they demanded additional dowry of Rs.50 lakhs and petitioner and 1st respondent got a Euros loan worth around Rs.21 lakhs in

Germany and also threatened to perform 2nd marriage to R1 if they failed to give Rs.50 lakhs. The petitioner and 1st respondent left to

Germany on 13.11.2017.

c.The petitioner got appointment in Umlaut company in

December, 2017. The petitioner caller her parents and informed 1st respondent beat mercilessly through video call and they could see the aggressive behaviour of 1st respondent and he left his friend Praveen in the house and used to attend Art of Living. In November, 2018 they returned to India and she went to Bellary due to pressure of her parents- in-law as they forced to return to Bellary and on 30.12.2018 they left to

Germany and on 13.5.2019 R1 beat the petitioner. She sustained bleeding and in July,2019 R2 & R3 went to Germany, continued their harassment and the petitioner colleagues advised her to give police report, but she is reluctant in order to save her marriage.

d.On 17.8.2019, 1st respondent has written apology letter and kept it in pooja place. He got afraid that if the petitioner lodged complaint to police he will be put to Jail in Germany and immediately he sent his parents to Paris, where his elder sister was staying. 1st respondent was acting on the advice of Marcel Verhoog with whom he is staying with Marcel Verhoog. On 23.2.2020 the petitioner came to India accompanied by Requel Sabarich who is colleague and friend of both 7 IV ADJ COURTCrl.Appeal.No.6/2022 petitioner and 1st respondent as she works in the same company

Umlaut. Within a week, the 1st respondent came to India on 29.2.2020.

Within a short time, the Government of India has announced lock down the petitioner struck off on account of Covid, when she was staying at

Bhilai. Though 1st respondent was staying at Bellary he was not responding to the petitioner’s calls and messages. During her absence at Germany the 1st respondent has sent his friend Mr.Marcel to the apartment on 16.4.2020 and Marcel removed the petitioner’s laptop and documents and 1st respondent returned to Germany without giving any information when she was staying at Bhilai. She also returned to

Germany on 31.7.2020 and joined her husband. 1st respondent has taken all her belongings and also 1st respondent transferred 35,000

Euros to his account. On 21.8.2020 she received message that he wants divorce and he got issued lawyer’s notice on 1.9.2020 in Germany.

Hence, she filed Domestic violence Complaint for return of Rs.5 lakhs and 200 grams of gold and she is entitled for compensation and of

Rs.1,00,000/- per month is needed towards her maintenance and other reliefs.

9.As seen from the docket proceedings before the learned

Magistrate in CFR.2138/2021 heard the complaint with regard to the

maintainability of the complaint and ultimately passed order rejecting the complaint against which on behalf of the complainant her father who is special power of attorney holder preferred the present appeal.

10.Learned appellant counsel argued that some of the incidents had taken place in India after that marriage took place in the year 2015. But

Learned Magistrate fails to appreciate the facts and came to a wrong conclusion that all the incidents has taken place at Germany and this court got no jurisdiction as no domestic relationship between them in 8 IV ADJ COURTCrl.Appeal.No.6/2022

India which is incorrect. He further argued that respondents have demanded additional dowry of Rs.50 lakhs and demand is made in India when complainant and 1st respondent returned to India and on the very next day they forced the appellant to ask and bring additional dowry of

Rs.50 lakhs on the ground that they have contacted debts for the marriage of 4th respondent and for the future marriage expenses of 5th respondent. But the trial court has not appreciated even though there is ample record that all the respondents were constantly demanding

additional dowry and all the respondents beat the appellant and also

they abused vulgarly and threatened to conduct 2nd marriage to the 1st respondent, if the additional dowry is not made and in November 2018 the appellant returned to India along with 1st respondent they abused her in filthy language and they made their demand for additional dowry when they made visit to Germany and further argued that learned

Magistrate failed to appreciate dowry harassment case is pending in

CC.60/2021 on the file of I Addl.Judicial Magistrate of I Class, Kurnool.

Hence, prays the court to set aside the order and give direction to the concerned Magistrate to take the complaint on file U/s.12 of Domestic

Violence Act and issue process against R1 to R5.

11.Perused the record. The complainant through her father filed

Domestic Violence case against R1 to R5, as the appellant is residing in

Germany for the alleged Domestic Violence caused to the appellant in the hands of R1 to R5. The appellant has filed complaint before learned

Magistrate in detail narrating the facts since the date of marriage of the

appellant with 1st respondent on 24.12.2015 and marriage is consummated, later 1st respondent left to Germany and on 13.4.2016 this appellant joined 1st respondent and the entire 75 pages of complaint 9 IV ADJ COURTCrl.Appeal.No.6/2022

before the learned Magistrate the complainant has narrated the incident

that has taken place in Germany during her stay with the 1st respondent.

12.On perusal of the order passed by the learned Magistrate in

CFR.No.2138/2021 dated 2.12.2021, the only objection of the learned

Magistrate is no Domestic relationship between the appellant and

respondents at India and also observed all the allegations made by the petitioner against the respondents relates only when they visited to

India from Germany on vacation and also observed whether said visits by petitioner to India and her stay in her in-laws house in India would constitute domestic relationship between the petitioner and 1st respondent and according to Section 2(f) of the Domestic Violence

Act - “ “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family” and the learned

Magistrate referred judgment of the Hon’ble Supreme Court in Union of

India Vs. Dudh Nath Prasad, AIR 2000 SC 525, wherein the word ‘resides’ has been interpreted. It was held that, “ before a person

is said to be ordinarily residing at a particular place has to have

an intention to stay at that place for a considerable length of

time and it would not include a visit of short term or casual

presence at that place”, and also observed the petitioner though she visited the house of respondents, her intention to stay at that place for considerable length of time is nowhere revealed or shown. Therefore, came to a conclusion it does not come under temporary or permanent residence of the petitioner with the respondents and also observed that respondent no.4 is married and has been living with her family elsewhere and the marriage of the 5th respondent is yet to be 10 IV ADJ COURTCrl.Appeal.No.6/2022 performed and complainant/petitioner is silent about 5th respondent living with respondents 2 and 3 at Bellary. But it is the case of the petitioner, respondents 4 and 5 harassed the petitioner when they came there to attend Satyanarayana Vratam and also observed that Domestic

Violence Act extends to whole of India, but not outside India and also learned Magistrate observed all the allegations made by the petitioner against the respondents relates to the offence committed by the 1st respondent at Germany and outside India and also observed soon after her marriage the petitioner stayed with her parent-in-laws in Bellary for about 2 months, but there are no allegations when the respondent no.1 left to Germany. All the allegations made by the petitioner against the respondents when they visited India from Germany on vacation and finally disbelieved the case of the petitioner and rejected to take cognizance of the offence under Section 12 of Domestic Violence Act and rejected the petition.

13.Learned petitioner counsel relied on the following decisions:

i. Y.Narasimha Rao and others Vs. Y.Venkatalakshmi and

another, (1991) 3 Supreme Court Cases 451, i.e. with regard to

Sections 13 and 14 of CPC i.e. Foreign Judgment on matrimonial disputes i.e. Divorce Decree by a foreign Court and also drawing presumption in respect of the Foreign Judgment and its admissibility.

ii.Kunapareddy @ Nookala Shanka Balaji Vs.

Kunapareddy Swarna Kumar and another, AIR 2016 SC 2519, i.e.

with regard to Sections 26 and 28 of Cr.P.C. and Order VI Rule 17 – with regard to the amendment and the court got power to amend the pleadings.

11 IV ADJ COURTCrl.Appeal.No.6/2022 iii.Another decision in AIR 2018 Bombay 148, Harshada

Bharat Deshmukh Vs. Bharat Appasaheb Deshmukh, it is with regard to the Section 13-B and power of attorney, already the court below has considered the power of attorney filed by the petitioner’s father,but rejected the petition not on that ground and opining that there is no domestic relationship between the parties.

iv.AIR 2005 Supreme Court 2583 in Bhagwan Das and another Vs. Kamal Abrol and others, in which it is held that:

Words and Phrases – Residence -Meaning of said word may be defined as one who resides in place or one who dwells in place for considerable period of time. Word ‘residence’ is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in certain locality or place of casual visit are different from place of ‘residence’.

In the present case in hand the entire allegations in the 78 pages of complaint filed before the learned Magistrate after the petitioner left to Germany all the incidents has taken place and also she has referred to two or three incidents when the petitioner visited India. But the court cannot consider her stay in India as rightly pointed out by the learned

Magistrate by referring Section 2(f) of Domestic Violence Act with

regard to definition of ‘residence’.

v.Another decision is 2012 CRL. L. J.3462 reported in

A.Ashok Vardhan Reddy and others Vs. Smt.P.Savitha and

another., in which it is held that:

12 IV ADJ COURTCrl.Appeal.No.6/2022

Domestic Violence – Maintainability – Existence of any jural relationship of man and wife between aggrieved wife and husband by date of filing of domestic violence case is not a sine qua non for maintainability of domestic violence case.

But those facts are entirely different in the case on hand, in the above case the couple has taken divorce at United States of America and later police filed charge sheet U/sec.498-A IPC against husband family and petitioner filed Sec.12 of Domestic Violence case.

vi.2019 CRL. L. J 1248, Zeba Khan and others Vs. State of U.P. and another, in which it is held that:

Sections 27 (a), 27(c) – Territorial jurisdiction – Complainant stated to be temporarily residing in Rampur, hence Courts at Rampur would have jurisdiction to try complaint . Mere plea of opposite party that complainant resided in Aligarh and no cause of action arose in Rampur, not sufficient to conclude lack of territorial jurisdiction – Court at Ramur would have jurisdiction to adjudicate the matter.

The above case facts are also not relevant to the case in hand, as learned Magistrate has taken objection with regard to the applicability of the Domestic Violence Act. As the entire harassment as per the petitioner has happened at Germany during her stay with first respondent.

vii.AIR 2020 SUPREME COURT 5397, Satish Chander

Ahuja Vs. Sneha Ahuja, in which it is held that:

Protection of Women from Domestic Violence Act , Sec.2(s),

S.17, S.19 – shared household – cannot only be that household, which is household of joint family of which husband is a member or in which husband of aggrieved person has share.

13 IV ADJ COURTCrl.Appeal.No.6/2022

But the above decision is with regard to the claiming of shared house by the aggrieved woman claiming right of residence, hence not looked into.

14.To sum up the case, the marriage of the parties has taken place on 24.12.2015 at Kurnool and on 13.4.2016 she joined 1st respondent at

Germany and on 11.10.2017 they came to India and left to Germany on 13.11.2017 and again came to India in November, 2018, at that time R2 and R3 abused her and on 30.120218 returned to Germany and later R2 and R3 visited Germany, there also they harassed the petitioner and on 23.2.2020 1st respondent sent petitioner to India and later due to Covid lock down she was forced to stay in India and in her absence the 1st respondent has taken all the belongings at Germany and 35,000 Euros from petitioner’s joint account was transferred to the account of 1st respondent. Therefore, viewed in any angle all the harassment to the petitioner in the hands of the 1st petitioner had taken place at Germany and it is the argument of the learned petitioner’s counsel when the petitioner visited India R2 to R5 harassed her. But whether short visit of the petitioner to India cannot be termed as residence as there is enough material on record that the petitioner and 1st respondent are residing at

Germany due to their employment. As the petitioner also filed this petition through her father by giving General Power of Attorney as she is also residing in Germany. Absolutely there is no material against R4 and R5 who are sisters of 1st respondent, except single bald allegation that during Satyanarayana Vratam they came to the house of R2 and R3 at their parents house and harassed her. Viewed in any angle, as rightly pointed out by the learned Magistrate, unless there is domestic relationship between the petitioner and respondents in India as the

Domestic Violence Act applies only in India, not outside India. The 14 IV ADJ COURTCrl.Appeal.No.6/2022 entire complaint shows after the petitioner left to Germany the harassment is made by the 1st respondent towards her, mere criminal case, police registered FIR U/s.498-A is not the ground to consider the case under Domestic Violence Act as S.498-A IPC case proceedings are entirely different to the proceedings under Domestic Violence Act and it is also the version of the appellant that 1st respondent initiated divorce proceedings in Germany, after that she got filed the private complaint through her father in India.

15.As seen from the complaint filed before the learned Magistrate

U/s.12 at Para 31 the complainant has mentioned as she unable to bear the harassment of the 1 st respondent and she lodged a police complaint on 15.3.2021 with the help of local Women Organization called Frauen

Helfen Frauen. The local police head quarters of Aachen have called the petitioner and have recorded her statement and also taken a complaint. The said criminal proceeding is pending against 1 st respondent at Germany. In view of the same already the petitioner has initiated criminal complaint against 1st respondent at Germany and also the petitioner alleged at para 40 of the complaint that she lodged complaint through her father before the Women police, Kurnool, the police failed to take action, she filed complaint U/s.200 of Cr.P.C. before the concerned Magistrate and Magistrate also took the cognizance of the complaint is filed in C.C.60/2021 on the file of JMFC, Kurnool. In view of the facts and circumstances of the case and on perusal of the order passed by the learned Magistrate referring Sec.2(f) of Domestic

Violence Act which defines Domestic relationship merely 1st respondent is her husband and respondents 2 and 3 her parents-in-law and R4 & R5 are sisters-in-law of the petitioner/complainant is not the ground to register the case under Domestic Violence Act. The petitioner and 1st 15 IV ADJ COURTCrl.Appeal.No.6/2022 respondent are admittedly are residing in Germany and that 75 pages of complaint clearly reveals almost all the instances of the alleged harassment made by the 1st respondent had taken place at Germany during her stay with 1st respondent. Admittedly she got marriage in the year 2015 and lived with R1 at Germany and presently also residing there and filed complaint in the year 2021 after R1 initiated divorce proceedings at Germany against her. Therefore, occasional visits of the petitioner to India and staying in the company of R2 and R3 in India as rightly pointed out by the learned Magistrate in her order does not give cause of action to show that there is a domestic relationship between the parties, the Judgment of the Hon’ble Supreme Court in Union of

India Vs. Dudh Nath Prasad, AIR 2000 SC 525 clearly applicable to the case in hand. So, considering all these aspects I do not find any merits in the appeal preferred by the petitioner/complainant. Therefore,

I do not want to interfere with the orders passed by the trial court.

Accordingly, the point is answered against the appellant.

16.In the result, the criminal appeal is dismissed confirming the orders passed by the learned Special Judicial Magistrate of I Class [for Proh. & Excise], Kurnool in CFR.2138/2021 in Un-numbered DVC

dated 2.12.2021. However no costs.

Dictated to the Stenographer, after transcription, corrected and pronounced by me in

open Court, this the 31st day of October, 2022.

Sd/- G. Prathibha Devi

IV ADDL DISTRICT & SESSIONS JUDGE,

KURNOOL.

Copy to:

The Special Judicial Magistrate of I Class [for Proh. & Excise], Kurnool // True Copy //

IN THE COURT OF THE JUDGE, FAMILY COURT -CUM- IV ADDITIONAL

DISTRICT JUDGE: KURNOOL

Present: Smt. G.Prathibha Devi,

Judge, Family Court -cum-

IV Additional District Judge, Kurnool.

Friday, the 22nd day of November, 2024.

Appeal Suit No.33/2019

Battu Sai Vara Prasad Raju, S/o.late Battu Pullama Raju, 51 years, Hindu, Business, R/o.D.No.11/7, near the office of Nagara Panchayat, Atmakur and Kurnool District.

... Appellant/

Defendant.

-Versus-

Dr.G.V.S.Satya Narayana Sarma, S/o.late Rama Swamy, 80 years, Hindu, Registered Medical Practitioner, now residing at Hyderabad, presently residing in a Gandhi Park Main Road, Atmakur, Kurnool District. … Respondent/ Plaintiff.

On appeal against the Decree and Judgment in O.S.3/2014 dated 4.1.2019 made on the file of the Senior Civil Judge, Atmakur.

Between

Dr.G.V.S.Satya Narayana Sarma.... Plaintiff.

And

Battu Sai Vara Prasad Raju.… Defendant.

This appeal is coming on 8.11.2024 for final hearing before me in the presence of Sri D.Yella Reddy, Advocate for the appellant/defendant and of Sri M.D.V.Jogaiah Sarma, Advocate for the respondent/plaintiff, upon hearing and perusing the material available on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

Aggrieved by the judgment and decree in OS.3/2014 dt 4.1.2019 passed by the Senior Civil Judge, Atmakur, the appellant/ defendant 2 preferred the present appeal to set aside the Decree and Judgment of the trial Court and prays the court to allow the appeal and dismiss the suit.

2.The appellant is defendant, whereas the respondent is plaintiff in O.S.3/2014.

3.The parties hereinafter referred to as plaintiff and the defendant as arrayed in O.S.3/2014 before the lower court for the sake of convenience, discussion and to avoid any ambiguity in the appeal.

4. Grounds of appeal:

The trial court ought to have held that the Mandal

Surveyor, Atmakur has inspected the entire Sy.No.906/A and fixed boundaries and submitted report in

OS.23/1981 on the file of District Munsif Court, Atmakur

and the trial court is wrong in coming to the conclusion that as per the commissioner report Ex.B1 that the commissioner not examined the documents of the plaintiff’s father at the time of inspection and the trial court ought to have held that as per Ex.B1 Surveyor report Momin Murthuza Basha and Ameena Bi has encroached the site of the plaintiff to an extent of

Ax.0.01 cents and later compromised and the

Commissioner report Ex.B1 is binding on the plaintiff as he is party and failed to held that Ex.A2

Gramapanchayat proceedings dt.8.12.1993 is fabricated and it is not proved and Ex.B4 Photos does not disclose about demolition of the compound wall, but it only 3 shows plaintiff is proposing to construct compound wall and also came to wrong conclusion that the plaintiff is in possession and enjoyment of the IABC in the plaint plan and also came to a wrong conclusion, further that the plaintiff is one of the attestor in Ex.B8 rectificatin deed and failed to compare his signature on Vakalath, plaint and deposition and also failed to held that Ex.A8 is not sent to Expert, but it dismissed the petition as the contemporaneous signatures of the plaintiff are not available for the relevant period and came to wrong conclusion and decreed the suit.

Hence prays the court to set aside the judgment and decree passed in OS.3/2014 and allow the appeal with costs.

5.After numbering of the appeal, the respondent made his appearance and contested the matter.

6.a.The respondent/plaintiff filed suit in OS.3/2014 against the appellant herein seeking declaration that he is the owner of IABC compound wall in the plaint schedule and also to grant permanent injunction and also mandatory injuction directing the defendant to construct the compound wall of the plaintiff damaged by him i.e. I-A-B as per the plaint plan and further pleaded that he purchased the suit schedule property through registered sale deed dt.17.8.1963 from

Attuluru Ramaswamy and in 1993 he constructed pucca building and also raised compound wall. Defendant raised objection and made an 4 application to the Gramapanchayat , Atmakur. The Executive Officer,

Grama Panchayat inspected the site rejected the objection of the defendant and issued proceedings on 8.12.1993. The vendor of the plaintiff’s father got 20 mooras on eastern side, but he has executed 27 mooras length on eastern side, hence the 7 mooras cannot give any right or title to the defendant’s father or to the defendant over the compund wall of the plaintiff. The rights of plaintiff over the compound wall even otherwise is also in alternative method made perfect by way of adverse posession.

In October 2013 the plaintiff made preparation to construct the repairs of the compound wall, on the intervening night defendant high handedly came to site with JCB damaged the compound wall, immediately he gave police complaint and police registered FIR and pending 145 Cr.P.C. proceedings he high handedly removed the remains of compound wall with JCB, hence the plaintiff constrained to file the suit.

b. The defendant contested the suit by filing written statement that the father of the defendant by name Pedda Pullama

Raju purchased Ac.0.10 cents of site on the northern side of the plaint schedule site under the registered sale deed dt.14.11.1963 from Bibi W/ o.Abdul Gafar Khan with measurements on the eastern side north- south – 27 mooralu, but in the sale deed dt 14.2.1963 the measurements on the eastern side , north-south shown as 20 mooralu only, later Athuluru Ramaswamy setty executed rectification deed on 17.8.1963 by altering the eastern side North-South measurements as 27 mooralu instead of 20 mooras, the plaintiff is also one of the signatory. Momin Murthuza Saheb and his daughter Amina Bee 5 constructed shops by encroaching 10 links in the site of plaintiff, plaintiff approached the District Munsif Court, Nandikotkur, later it is transferred to Atmakur in OS.58/1981 and Momin Murthuza Saheb and his daughter filed OS.23/1981, Mandal Surveyor is appointed in the said suit and he filed report and in that inspection defendant site is also measured that he is in possession of 10 cents admeasuring on eastern side North-South 27 mooras, and Momin Murthuza Saheb encroached the plaintiff site an extent of 10 links on southern side, later they both got compromised and Momin Murthuza Saheb has given away 20 mooras of his site of the western side of the shops of him i.e. to the southern side of the plaint scheudle site by executing registered sale deed for the10 links of site which he occupied. The plaintiff who actually lost his 10 links of site on Eastern side North-South got compensated with the said site of 20 mooras by the said Momin Murthuza Saheb and his daughter. But he is now again trying to claim his entire site with the measurements noted in his document taking advantage of not noting of the measurements of 27 mooras in the link document of the defendant and filed suit, hence prays the court to dismiss the suit.

7. The trial court framed altogether six issues. During course of trial, Pws.1 to 3 were examined and got marked Exs.A1 to A8. On behalf of the defendant, Dws.1 and 2 were examined and Exs.B1 to B8 were marked.

8.After considering the evidence on record, the trial court decreed the suit of the plaintiff against which the present appeal is preferred.

6

9.Aggrieved by the above judgment, the appellant/ defendant preferred the present appeal.

10.During course of appeal, the appellant herein filed petition in IA.No.11/2024 to receive the certified copy of judgment in

CC.329/2014 dt.28.6.2023 under Order 41 Rule 27 CPC and said

petition is allowed. Hence, the appellate court has to consider the document filed in the above petition i.e. C.C. of judment in CC.329/2014 and no evidence is let in by respondent side before this appellate court.

11.Heard both sides. Learned counsel for appellant filed written arguments.

12.Now, the point that stood for consideration is :

“Whether there are any grounds to interfere with the decree and judgment passed by the trial Court in

O.S.No.3/2014 dated 4.1.2019?”

13. POINT :-

Perused the record. The plaintiff herein filed suit OS.3/2014 on the file of Senior Civil Judge, Atmakur for declaration that he is the owner of the I-A-B-C compound wall situated in the plaint schedule property as shown in the plaint plan and for permanent injunction restraining the defendant or anybody claiming under him and his men from interfering with the peaceful possession and enjoyment of the plaint schedule property and for mandatory injunction directing the defendant to construct the compound wall of the plaintiff damaged by him i.e. I-A-B as shown in the plaint plan.

7 a.Learned appellant counsel filed written arguments aruging that PW1 admitted in his cross-examination that he purchased the property from A.Ramaswamy and father of the defendant Pullama Raju purchased northern side of the suit schedule property from the wife of

Abdul Gafaoor Khan and also admitted filing of suit OS.58/1981 and also admitted appointment of commissioner in the suit and also admitted suits OS.23/ 1981 and 58/1981 were dismissed, later he filed appeal AS.7/1988 in OS.58/1981 and AS.No.8/1988 in OS.23/1981 and later compromised and learned counsel for appellant reproduced entire cross of PW1 in the arguments. He further argued that in the previous suit the plaintiff was compensated in view of the compromise between the plaintiff and Momin Murthuza Saheb, but he again claiming the site and only relying on the proceedings of the Gramapanchayat only with a malafide intention to grab 7 mooras of site, he started construction of the compound wall by encroaching the defendant’s site and the boundaries will prevail over extent of the land.

b.On the other hand, learned respondent counsel argued that defendant failed to estabhish his case and Ex.A2 Gramapanchayat

Proceedings are not challenged by defendant and 20 years he kept quite and also plaintiff has taken specific plea of adverse possession, but all of sudden in the year 2013 he demolished the compound wall of the plaintiff and A.Ramaswamy is common vendor of plaintiff and defendant and also further argued that Ex.B8 rectification deed is without registration and the court cannot consider the said document and it is marked subject to objection and rectification deed which is also compulsorily registrable document and also they filed IA.213/2017 asking to demark Ex.B8 document, but the court passed orders that it 8 will be decided at the time of the judgment and Ex.B8 is not sent to FSL examination whether the signature on Ex.B8 belongs to plaintiff or not, but the plaintiff able to establish about the demolition of the wall by defendant, hence the trial court correctly decreed the suit and there is no need to interfere with the judgment passed by the trial court, hence prays the court to dismiss the appeal.

14.On perusal of the record, the plaintiff is examined himself as

PW1 and reiterated the averments and got marked Ex.A1 registered sale deed.

The defendant is examined himself as DW1 through

Advocate commissioner and got marked the sale deed. He admitted in

Ex.B1 commissioner’s report dt.27.2.1988, the eastern face of thier site is 27 mooras, he pleaded ignorance that the plaintiff have filed objection for the commissioner report and he stated he did not file the full text of judgment in OS.23/1981, hence it is suggested as if the entire judgment is filed it will not helpful to the defendant, hence he failed to file the same. He also admitted that in the sale deed of his father under Ex.B6 the eastern side measurement is shown as 20 mooras, but he pleaded there is link document and also admitted that in Ex.B6 it was not mentioned as to how the said 20 mooras was changed to 27 mooras, so Ex.B8 is link document, which is prior to the execution of Ex.B6 sale deed and also admitted Ex.B8 rectification was brought into light for the first time. Hence it is suggested to DW1 Ex.B8 was created for the case purpose and it was not seenlight previously and also admitted in the sale deed executed by Momin Murthuza Saheb and his daughter in favour of plaintiff i.e. Ex.B4 it was not mentioned 9 that compensation of 10 links of site Murthuza Saheb has given 20 mooras situated to the south of the plaint schedule site to the plaintiff.

Hence, it is suggested Exs.B1 to B5 and B8 are no way support to the case of the defendant and Ex.B8 was created in order to interpretend

Exs.B1 to B5 wrongly suitable to their case and even DW1 admitted that Ex.A4 photos shows demolition of the compound wall, but he pleaded he has not demolished the compound wall and also pleaded there is no such compound wall inexistence previously.

15. a.It is the case of the plaintiff that cause of action arose when defendant demolished the compound wall of the plaintiff and he got examined PW2 & PW3 who are third parties, they supported the version of the plaintiff that on the intervening night 21/22.10.2013 the defen- dant high handedly demolished the wall and he was present at that time. As seen from the cross-examination of PW2, PW2 is one of the tenant in the shop of the plaintiff and it is oral tenancy.

b.PW3 is also third party deposed in the similar lines as stated by PW2. According to him, he took photos when defendant demolised the wall of the plaintiff and he is the person who informed about the demolition of wall by defendant to plaintiff. As seen from the cross-ex- amination of PW3 by the learned defendant counsel in the trial court, when the plaintiff was in the Hyderabad on the instructions of him he took photographs. PW3 is cross-examined in length with regard to the photos taken by him, So, there are suggestions to PW3 due to the climatic conditions the compound wall of the plaintiff is fell down, but he denied the same, that part of cross-examination also gives adverse inference against defendant as there existence of compound wall and it 10 was demolished as no material produced by defendant that it was fell down due to climatic conditions as suggested to witnesses.

16.On behalf of the defendant, DW2 is examined. He deposed there is no compound wall on the northern side of the plaint schedule property, but he tried to construct the compound wall when defendant objected he stopped construction. As seen from the cross-examination of DW2 by plaintiff counsel, DW2 is cross-examined based on Ex.A4 photos. On perusal of the Ex.A4 photos, we can see the debris of the wall.

17.Learned appellant counsel argued that defendant did not demol- ished the wall and false case is registered, hence the defendant and an- other was acquitted and certified copy of the judgment is filed. But on perusal of the certified copy of the judgment received in appeal as per orders in IA.11/2024. Mere the defendant is acquitted from the criminal case is not the ground to allow the appeal. If the certified copy of the judgment is considered also there is no merit in the arguments of the learned appellant counsel as the defendant is acquitted from the crimi- nal case, no such incident happened as there is no demolition of the wall, but the charges in criminal case are against the defendant are not proved, hence the defendant and another was acquitted, but appellate court cannot consider that Criminal Court judgment in the appeal filed by the appellant. Therefore, even though the certified copy of the judg- ment in CC.329/2014 dt. 28.6.2023 on the file of Judicial Magistrate of

I Class, Atmakur is received, but it is not helped to the case of appellant

as mere acquittal in criminal case document not give any cause of action for appellant to prove no such incident happened.

11

18.On perusal of the judgment passed by learned Senior Civil Judge,

Atmakur in OS.3/2014, he elaborately discussed and decreed the suit and also he find fault with the defendant with regard to the Ex.B8 recti- fication deed dated 17.8.1963 as it is written on white paper and un- stamped and unregistered document. Furthermore, Ex.B6 is Registered sale deed dated 14.11.1963. So there is no reference of Ex.B8 rectifica- tion deed which is prior to Ex.B6 sale deed, apart from that subject to objection Ex.B8 is marked and even though the defendant filed

IA.346/2018 to send Ex.B8 for expert’s opinion to compare signature of

plaintiff on Ex.B8 as it is his contention plaintiff signed on Ex.B8 Rectifi- cation deed, as defendant failed to produce the contemporaneous signatures of the plaintiff of that period, it is not sent to Forensic

Science Laboratory opinion. So, Ex.B8 remains not proved. Defendant failed to prove plaintiff signed on Ex.B8.

19.But it is the contention of the appellant counsel who filed written arguments arguing that court got power to compare the signatures of the plaintiff in his affidavit, as well as Vakalath and plaint, but on perusal of the Ex.B8 it is written on white paper, stamp duty is collected and it is impossible for the court to compare the signatures of plaintiff i.e. Dr.G.V.S.Satyanarayana, the court cannot compare it as it is a crucial document, the court cannot utilize its discretion, even if at all the version of the defendant is believed that the plaintiff is signatory to

Ex.B8 Rectification deed and it is unregistered document, the court cannot consider the same and also there is no explanation from defen- dant for not referring Ex.B8 in Ex.B6 sale deed. Hence, the trial court correctly appreciated Ex.B8 document is not admissible and also observed that the defendant is silent even though he knows the 12 existence of Ex.B8 prior to cause of Action to Ex.B6 and said property devolved in favour of the vendor of the defendant’s father and also opined that the defendant’s father title is in possession and thereafter the defendant’s title is in question and also the trial court rightly appreciated that the defendant is relying on the Advocate commissioner’s report in the suit filed by the plaintiff and his neighbour

OS.58/1981 and OS.23/1981 that the father of the defendant is having

27 mooras and also correctly appreciated the defendant cannot get his title because Ex.B1 commissioner report.

20. Learned respondent counsel argued that the court gave finding that commissioner is not examined and the documents of the defendant’s father is not correct, and further argued that commissioner executed warrant by issuing notices to the parties. So, I am satisfied with the arguments of the learned respondent counsel that defendant cannot rely on Ex.B1 Commissioner report dated 27.2.1988 and mere marking of Ex.B1 is not sufficient, the defendant has not taken any steps to prove the contents of Ex.B1 and whether both parties has filed any objections or not are also not considered, apart from that during cross-examination of PW1, he stated that the commissioner visited the locality in his absence, hence came to a right conclusion that

Commissioner has not considered the documents. Furthermore, Ex.B1

Commissioner report is not pertaining to the case of plaintiff and defendants but with regard to the other suits filed between plaintiff and others, but not this defendant is party to that suit proceedings. Hence

Ex.B1 cannot be considered. Even though defendant has taken the plea that Ex.A2 Proceedings issued by Gramapanchayat are fabricated, but 13 he failed to prove Ex.A2 proceedings dated .8.12.1993 are fabricated, as it is the case of plaintiff that the plaintiff when he started the construction of the compound wall the defendant raised objection at that time he approached the Gramapanchayat and Executive Officer of

Gramapanchayat visited the place and issued proceedings against the defendant, but the defendant has not taken any steps to prefer the appeal against the proceedings of the Executive Officer and it becomes final and the trial court came to a right conclusion based on Exs.A1 and

A2 that the plaintiff is the absolute owner of the I-A-B-C compound wall as shown in the plaint plan.

21.With regard to the Permanent injunction, there is cause of action for the plaintiff to give report, as there is no dispute as the police filed charge sheet against the defendant and another for demolition of the wall and the defendant is not disputing the , as it is their case the de- fendant and another are acquitted and the certified copy of the judg- ment is also filed, hence when defendant wants to interfere with the plaint schedule property, plaintiff filed suit seeking relief of permanent injunction also and the trial court also answered that issue in favour of the plaintiff.

22.Plaintiff also sought the relief of mandatory injunction to restore its possession of the compound wall demolished by the defendant. As it is the case of the plaintiff, in the absence of the plaintiff in October, 2013, the defendant high handedly came to the site with JCB and dam- aged the compound wall and PW3 informed the same to the plaintiff and he also took photos and those photos were marked as Ex.A4 and

CD is marked as Ex.A5 and Ex.A7 are the bills. Even though the defen- 14 dant has let in evidence that there is no such compound wall in exis- tence and Pws.2 and 3 who are the business people in the said locality deposed there is compound wall. On perusal of the Ex.A4, the court can see the basementand it was removed. PW3 is not the eyewitness, but he came to know the same and reported the matter immediately to plaintiff, but PW2 is the eyewitness to the incident deposed that defen- dant high handedly damaged the compound wall, on that plaintiff along with his son came there. Hence, came to conclusion that the defendant removed compound wall, police also investigated the matter and filed charge sheet against the defendant and another that they removed compound wall, mere they were acquitted in the criminal case does not show that he did not committed the offence, but the acquittal only goes to show that the charge is not proved against the defendant. Plaintiff is denying his signature on Ex.B8 and the trial court also came to conclu- sion that Ex.B8 is required registration and it is not admissible in evidence and it can be looked only for the collateral purpose, but the defendant is not permitted to use the document when there is clear recital in Ex.B7 sale deed that he got only 20 mooras towards eastern side, but in Ex.B8 by rectifying same the defendant’s father even mentioned as if it is mentioned 27 mooras. The vendor of the defendant’s father was not having title by the time of Ex.B6, as the defendant failed to prove Ex.B8 Rectification deed, the defendant fa- ther was in possession and enjoyment of the suit schedule property from 14.11.1963. So defendant’s possession over the wall is not tenable.

23.There is an issue with regard to the adverse possession that is also answered positively in favour of the plaintiff by the trial court. As it 15 is the case of the plaintiff in 1963 he purchased the site, in 1993 dispute arose between the plaintiff and defendant when he constructed compound wall and Executive Officer issued Proceedings in his favour in 1993 itself and it becomes final and defendant not challenged the same. So, even in otherwise his possession adverse to the knowledge of defendant as the defendant failed to file any suit for recovery of the possession and the issue is answered in favour of the plaintiff by the trial court.

So, in view of facts and circumstances of the case when the plaintiff discharged his burden that he is owner of the plaint schedule property and he constructed compound wall, but the defendant failed to prove his case and in view of the defects in Ex.B8 it cannot be considered, hence he failed to discharge his burden and he is not in possession and he purely depends on Ex.B1 Commissioner report, which is filed in another suit and plaintiff is disputing Ex.B1, but he failed to take steps to prove Ex.B1, hence I do not want to interfere with the judgment of the trial court. Accordingly the point is answered against the appellant.

24.In the result, the appeal stands dismissed with costs confirming the Judgment and Decree passed by the learned Senior Civil Judge,

Atmakur, in O.S. No.3/2014 dated 4.1.2019.

Dictated to Stenographer, after transcription, corrected and pronounced by me in open court, this the 22 nd

day of November, 2024.

Judge,

Family Court -cum- IV Additional District Judge, Kurnool.

16

APPENDIX OF EVIDENCE.

--- NIL ---

Judge,

Family Court -cum- IV Additional District Judge, Kurnool.

Copy to the Senior Civil Judge, Atmakur.

IN THE COURT OF THE JUDGE, FAMILY COURT -CUM- IV ADDITIONAL

DISTRICT JUDGE: KURNOOL

Present: Smt. G.Prathibha Devi,

Judge, Family Court -cum-

IV Additional District Judge, Kurnool.

Wednesday, the 9th day of November, 2022.

Appeal Suit No.61/2018

A.Srinivasulu S/o.K.Narayana Setty, aged 72 years, Hindu, living by properties, resident of Dhone Town and Mandal, Kurnool District. … Appellant/ D1 - Versus -

1. Kothuru Girish @ K.yada Girish @ K.Girish Kumar, S/o.K.Adivaiah, aged about 26 years, Hindu, business, R/o.H.No.5-100, Makam Street, Dhone Town and Mandal, Kurnool District. … Respondent/Plaintiff.

2. K.Vijaya Lakshmi, W/o.K.Adivaiah, aged about 48 years, Hindu, House wife, R/o.H.No.5-100, Makam Street, Dhone Town and Mandal, Kurnool District.

3. K.Uma Lakshmi W/o.K.Madhusudhan Reddy, aged bout 30 years, Hindu, House wife, C/o.Satgyan’s Netaji High School, Subhash Nagar, Bagya Lakshmi Colony, Jeedimetla, Hyderabad, Ranga Reddy District.

4. K.Kalpana, W/o.K.V.Chaitanya, aged about 29 years, Hindu, House wife, R/o.H.No.18-109, Patha Peta, Dhone Town and Mandal, Kurnool District. … Respondents/ Defendnats.

On appeal against the Decree and Judgment in O.S.455/2011,

dated 4.6.2018 made on the file of the Prl.Senior Civil Judge, Kurnool.

Between

Kothuru Girish @ K.yada Girish @ K.Girish

Kumar. ... Plaintiff.

And

1. A.Srinivasulu.

2. K.Vijaya Lakshmi.

3. K.Uma Lakshmi.

4. K.Kalpana. .. Defendants

IV ADJC, KNL. 2 A.S.No.61/2018

This appeal is coming on 18.08.2022 for final hearing before me in the presence of Sri M.D.V.Jogaiah Sarma, Advocate for appellant and of Sri A.Ramasubba Reddy and Sri A.Prabhakar Reddy, Advocate for respondent NO.1 and respondents 2 to 4 having remained ex-parte, upon hearing and perusing the material available on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

Aggrieved by the judgment and decree passed by the Principal

Senior Civil Judge, Kurnool in O.S.455/2011 dated 4.6.2018, the 1st

defendant preferred the present appeal to set aside the Decree and

Judgment of the trial Court and prays the court to dismiss the suit.

2.The appellant is first defendant, whereas the 1st respondent is plaintiff and respondents 2 to 4 are defendants 2 to 4 in

O.S.455/2011.

3.The parties hereinafter referred to as plaintiff and the defendants as arrayed in O.S.455/2011 before the lower court for the sake of convenience, discussion and to avoid any ambiguity in the appeal.

4. Grounds of appeal:

i) The plaintiff did not choose to examine any other witnesses and lower court failed to appreciate the various admissions of Pw1 in his cross-examination about the proximity of the 1st defendant, with the family of the plaintiff and the defendants 2 to 4.

IV ADJC, KNL. 3 A.S.No.61/2018 ii) The Lower court failed to appreciate the fact that plaintiff and 2nd defendant are residents in the same house bearing No.5-100, even as per the cause title of the plaint and also failed to appreciate the fact that the 2nd defendant has filed insolvency casein IP.27/2008 clearly pleading that she was indebted to the 1st defendant under pronotes to the tune of Rs.4,50,000/- and also failed to appreciate admission of PW1 that D2 had informed that she borrowed amount for his studies and family welfare.

Hence, prays the Court to allow the appeal and set aside the decree and judgment passed in OS.455/2011 dated 4.6.2018 by the

Prl.Senior Civil Judge, Kurnool and dismiss the suit.

5.After numbering of the appeal, the 1st respondent/plaintiff contested the appeal and the remaining respondents R2 to R4 remained ex-parte.

6.The brief facts of the case are:

a. The Plaintiff filed the suit for cancellation of sale deed

dated 30.6.2005 and for injunction restraining the defendants, their

men, agents and anybody claiming under him from interfering with the peaceful possession and enjoyment of the plaint schedule property including alienation and costs of the suit.

b. It is his case, he is the absolute owner of building bearing No.5/100 and 5/99-2 of Dhone village, consisting of three rooms of shopping complex and residential house. The step mother of plaitniff’s father by name Kothuru Subbamma executed a regsitered will

IV ADJC, KNL. 4 A.S.No.61/2018

dated 26.6.1996 in the presence of 1st defendant and R.Maddileti Reddy

in favour of plaintiff bequeathing the above said house property and she died on 26.1.2002, from then plaintiff became the absolute owner and on northern side of the house bearing No.5/100 three shops were constructed and those shops are given separate number 5/99-2 of

Dhone village.

c.2nd defendant is the mother of the plaintiff and defendants 3 and 4 are his sisters and they were residing in the residential house and 2nd defendant collected rents on behalf of plaintiff about Rs.5,500/- and spent it for family maintenance. The plaintiff was not provided with education and discontinued VII Class. The defendants 2 to 4 without any manner of right alienated plaint A schedule property to the 1st defendant and at that time the plaintiff was minor, his date of birth is 2.5.1991 and he is aged 20 years. There was no necessity to sell the plaint schedule property to 1st defendant and consideration amount was not spent for maintenance or up bringing of the plaintiff. Therefore, the sale in favour of 1st defendant executed by defendants 2 to 4 and 2nd defendant as guardian of the plaintiff is not binding on the plaintiff.

Hence, the suit.

d. 1st defendant filed written statement denying all the material allegations in the plaint admitting about the execution of Will. After death of father of plaintiff defendants 2 to 4 borrowed Rs.3,50,000/- from the 1st defendant and shops abutting the Kurnool road were constructed with the financial help rendered by the 1st defendant and unable to discharge the debts, defendants 2 to 4 executed the sale deed in his favour on 30.6.2005 and he is a bonafide purchaser. Hence prays to dismiss the suit.

IV ADJC, KNL. 5 A.S.No.61/2018 7.Basing on the pleadings, the plaintiff is examined himself as PW1 and got marked Exs.A1 to A6. On behalf of 1st defendant, Dws.1 and 2 were examined and Exs.B1 to B8 were marked.

8.After considering the evidence and documents, the trial

Court disbelieved the case of the 1st defendant and decreed the suit.

For which the present appeal is preferred by the defendant No.1.

9. Either side adduced any evidence or marked any documents in the appeal .

10.Heard. Written arguments filed by appellant.

11.Now, the point that stood for consideration is :

“Whether there are any grounds to interfere with the decree and judgment passed by the trial Court in

O.S.No.455/2011, dated 4.6.2018?”

12. POINT :- a.Learned counsel for appellant argued that respondent/ plaintiff obtained decree for cancellation of sale deed dated 30.6.2005 and the relationship between the parties are admitted and the plaintiff relied on the Will and claimed plaint schedule property and after execution of the Will plaintiff along with D2 to D4 were resided in the same house and D2 is natural guardian being the mother of the plaintiff wantedly they remained ex-parte. So, it is nothing but collusive suit filed by the plaintiff after attaining majority. But in fact D2 who is mother of plaintiff borrowed several amounts from this appellant and in order to discharge the debts and for the expenditure she sold the

IV ADJC, KNL. 6 A.S.No.61/2018 property to 1st defendant for the maintenance of her children and D1 is bonafide purchaser, but the trial court erred in setting aside the sale deed on the ground that 2nd defendant failed to obtain permission from the court for selling the minor property and relied on U/s.8 of Guardian and Wards Act, but forget to make mention that D2 sold the property only for the benefit of the minor and also went wrong in setting aside the sale and decreed the suit and 1st defendant is bonafide purchaser.

b.On the other hand, learned 1st respondent/plaintiff counsel argued that the trial court rightly came to the conclusion as the law is settled as the plaintiff is minor and minors property is sold by his mother without obtaining permission, title is not in dispute, only the point for consideration is whether the permission is necessary or not the Will executed by the grandmother and Sections 8 and 12 of

Guardian Act and at the option of the minor, the sale deed is voidable and the learned 1st respondent counsel relied on the decision reported in Saroj Vs. Sunder Singh and others, in which it is held that:

Hindu Minority and Guardianship Act, 1956 – Section 8 – Powers of natural guardian – Sale of property of minor by natural guardian without previous permission of Court – Where father dies leaving behind only minor daughters and their mother as natural guardian, share of daughters became definite and question of family partition retaining character of Joint Hindu Family Property does not exist – Sale deeds executed by second respondent in favour of first respondent shall become voidable at instance of minor.

Hence argued the above decision is squarely applies to the case in hand. He also relied on another decision reported in Bada

Sriramulu/Appellant -Vs. Chedalavada Prabhakara Rao,

Ch.Venkaiah/Respondent, in which it is held that:

IV ADJC, KNL. 7 A.S.No.61/2018

Hindu Succession Act, 1956 Sec.14(2) – Hindu Minority and

Guardianship Act, 1956, Sec.8(3) – Previous permission of the court is mandatory before any disposal of immovable property of the minor by the natural guardian and said alienation is voidable at the instance of minor – No obligation on the part of the alienee to see that each pie of the consideration went towards the discharge of antecedent debt only – Enough if the vendee shows that he made genuine enquiries and satisfied himself regarding the pressure for sale of the land.

Hence argued that in view of Section 8(2), it is clear that the appellant who is minor and the property belongs to him. In view of the

Will executed by his grandmother and the 2nd defendant who is his natural guardian and mother without obtaining permission from the court sold the property to the appellant herein. Hence, it is voidable at the option of the minor who filed suit to set aside the sale deed executed by his mother in favour of the appellant herein. Hence, there are no ground to interfere with the judgment. Hence, prays the court to dismiss the appeal.

13.Perused the record. 1st respondent herein filed the suit

OS.455/2011 on the file of Principal Senior Civil Judge, Kurnool seeking

relief of cancellation of the sale deed dated 30.6.2015 executed by the 2nd defendant in favour of the 1st defendant stating that step mother

Kothur Subbamma of plaintiff’s father executed Will dated 26.6.1996 in favour of the plaintiff and he becomes absolute owner of the house after death of his grandmother and when he was minor his mother i.e.

D2 along with D3 and D4 executed sale deed in favour of D1. Hence prays the court to set aside the sale deed. The trial court decreed the suit setting aside the sale deed executed by D2 to D4 in favour of D1.

IV ADJC, KNL. 8 A.S.No.61/2018 14.Perused the judgment in OS.455/2011 passed by the learned

Principal Senior Civil Judge, Kurnool. The only point that arose for

consideration by the learned Principal Senior Civil Judge, Kurnool and relied on Section 8(2) of Hindu Minority and Guardian Act and find fault with D2 to D4 for selling the house to 1st defendant without obtaining permission from the court and also relied on decision reported in 2004(8) SCC 785 and the sale is voidable at the option of minor when he preferred suit within the 3 years after attaining majority and also came to a conclusion that plaintiff is born on 2.5.1991 and he filed suit on 31.8.2011 and accordingly set aside the sale deed/Ex.A2 U/s.31(2) of

Specific Relief Act.

15.On perusal of the evidence on record before the trial court:

The respondent/plaintiff herein examined as PW1 and marked

Exs.A1 to A6 1st defendant examined as DW1 and DW2 also examined and Exs.B1 to B8 are marked. Ex.A1 is the Registered Will dated 26.6.1996 executed by Kothuru Subbamma for which there is no dispute and the title is not in dispute. Ex.A2 is certified copy of

Registered sale deed dated 30.6.2005 executed by D2 to D4 on behalf of plaintiff in favour of the 1st defendant and Ex.A4 is the Birth certificate of the plaintiff, so by the date of execution of sale deed i.e.

on 30.6.2005, the plaintiff is 14 years old. Hence he is minor for which there is no dispute and after attaining majority he filed the suit and also the trial court considered with regard to the aspect whether 1st defendant is bonafide purchaser and also discussed about Exs.B1 to B7 promissory notes executed by D2 to D4 for construction of the house.

No doubt, there is ample evidence on record that 2nd defendant

IV ADJC, KNL. 9 A.S.No.61/2018 borrowed amounts from the 1st defendant also discussed by the date of borrowing amounts under Exs.B1 to B7, plaintiff is minor and 2nd defendant used to do sweets business and also came to the conclusion that evidence of DW2 is no way useful when they failed to obtain permission as contemplated U/s.8(2) of Hindu Minority and Guardian

Wards Act. Hence, there is no merit in the arguments of the learned appellant counsel seeking the relief of dismissing the suit.

16.It may be a fact that 2nd defendant borrowed amounts to the tune of Rs.4,50,000/- and also filed Insolvency Petition in IP.27/2008 and she is in need of money, but on that ground we cannot overcome the legal aspect contemplated under law when the fact remains the same, as the title of the plaintiff is not in dispute in view of the Ex.A1 Registered

Will and after death of Subbamma in view of Ex.A3 death certificate plaintiff became absolute owner and as per Ex.A4 date of birth certificate plaintiff is born on 2.5.1991 and he field the suit after obtaining majority. Hence, the arguments of the learned appellant counsel cannot be taken into consideration and in view of the decision reported in Saroj Vs. Sunder Singh and others also the Hon’ble

Lordships held the same and also in another decision reported in

Rameshwar Lal & others Vs. Jai Prakash & others AIR 2014 RAJ

72, also got mentioned the same mentioning that though sub- section(1) permits a natural guardian to do all acts necessary for the benefit of minor and for benefit of minors estate, but the same is subject to other provisions of Section and sub-section(2) clearly provides that without previous permission of the Court transfer by sale of immovable property shall not be made by the guardian and any sale in contravention of sub-section (2) does not admit any exception,

IV ADJC, KNL. 10 A.S.No.61/2018 whereby for any condition the minors estate could be transferred by the natural guardian without previous permission of the court. It is for the minor, on attaining majority,not to question the transfer which is in contravention of sub-section(2) of Section 8, but if he decides to question the same, the same is voidable at his instance. In the present case also the plaintiff questioned the sale deed executed by his mother along with D3 and D4. Hence, the sale deed executed by D2 to D4 in favour of D1 is voidable at the option of the minor. So, considering all these aspects I do not find any merits in the appeal. Accordingly, the point is answered against the appellant.

17. In the result, appeal stands dismissed with costs.

Dictated to Stenographer, after transcription, corrected and pronounced by me in

open court, this the 9 th day of November, 2022.

IV Additional District Judge, Kurnool.

Copy to the Prl.Senior Civil Judge, Kurnool.

IN THE COURT OF THE JUDGE, FAMILY COURT -CUM- IV ADDITIONAL

DISTRICT JUDGE: KURNOOL

Present: Smt. G.Prathibha Devi,

Judge, Family Court -cum-

IV Additional District Judge, Kurnool.

Wednesday, the 9th day of November, 2022.

Appeal Suit No.61/2018

A.Srinivasulu S/o.K.Narayana Setty, aged 72 years, Hindu, living by properties, resident of Dhone Town and Mandal, Kurnool District. … Appellant/ D1 - Versus -

1. Kothuru Girish @ K.yada Girish @ K.Girish Kumar, S/o.K.Adivaiah, aged about 26 years, Hindu, business, R/o.H.No.5-100, Makam Street, Dhone Town and Mandal, Kurnool District. … Respondent/Plaintiff.

2. K.Vijaya Lakshmi, W/o.K.Adivaiah, aged about 48 years, Hindu, House wife, R/o.H.No.5-100, Makam Street, Dhone Town and Mandal, Kurnool District.

3. K.Uma Lakshmi W/o.K.Madhusudhan Reddy, aged bout 30 years, Hindu, House wife, C/o.Satgyan’s Netaji High School, Subhash Nagar, Bagya Lakshmi Colony, Jeedimetla, Hyderabad, Ranga Reddy District.

4. K.Kalpana, W/o.K.V.Chaitanya, aged about 29 years, Hindu, House wife, R/o.H.No.18-109, Patha Peta, Dhone Town and Mandal, Kurnool District. … Respondents/ Defendnats.

On appeal against the Decree and Judgment in O.S.455/2011,

dated 4.6.2018 made on the file of the Prl.Senior Civil Judge, Kurnool.

Between

Kothuru Girish @ K.yada Girish @ K.Girish

Kumar. ... Plaintiff.

And

1. A.Srinivasulu.

2. K.Vijaya Lakshmi.

3. K.Uma Lakshmi.

4. K.Kalpana. .. Defendants

IV ADJC, KNL. 12 A.S.No.6/2018

Aggrieved by the judgment and decree passed by the Principal

Senior Civil Judge, Kurnool in O.S.455/2011 dated 4.6.2018, the 1st

defendant preferred the present appeal under Order XLI Rule 1 C.P.C. praying the court to set aside the Decree and Judgment of the trial Court and prays the court to dismiss the suit.

Appeal presented on 25.7.2018 and filed on 16.8.2018;

The Suit in the lower Court is valued at Rs.1,13,000/- + Rs.5,000/- = Rs.1,18,000/- and separate Court fee of Rs.3626/- + Rs.411/- = Rs.4037/- is paid U/s.37 & 26(c) of APCF & SV Act, 1956.

The appeal is valued same as that of in lower court and a separate Court fee of Rs.3626/- + Rs.411/- = Rs.4,037/- is paid U/s.37 & 26(c) r/w Sec.49 of APCF & SV Act, 1956. [ But paid Rs.4310/-, excess CF of Rs.273/- not to be taxed.

This appeal is coming on 18.08.2022 for final hearing before me in the presence of Sri M.D.V.Jogaiah Sarma, Advocate for appellant and of Sri

A.Ramasubba Reddy and Sri A.Prabhakar Reddy, Advocate for respondent

NO.1 and respondents 2 to 4 having remained ex-parte, and this Court doth order and DECREE as follows:-

1) That the appeal be and the same is hereby dismissed by confirming the decree and judgment passed by the learned

Principal Senior Civil Judge, Kurnool in O.S.No.455/2011 dated

4.6.2018.

2) that the appellant do pay to the respondent no.1 a sum of Rs.2/- (not certified) and appellant do bear a sum of Rs.9,587/- being the costs of the appeal.

Given under my hand and the seal of the Court, this the 9 th day of November, 2022.

Judge,

Family Court -cum-

IV Addl. District Judge,

Kurnool.

Memo of Costs

S. Appellant No.1 For R1 No. Rs.Rs. 1Stamps on appeal4,037-000-00 2Stamps on vakalath2-00 2-00 3Process205–00 0-00 4Stamp on Decree & Judgment 3-00 0-00 5Advocate’s fee 5,240-00 Nil. (not certified) 6Typing charges100-00 0-00 Total Rs.9,587-00 2-00

IV ADJC, KNL. 13 A.S.No.6/2018

SCHEDULE

A Schedule:

The House bearing No.5/99-2 laid in Sy.No.548 Pyki of Dhone with Dhone Sub-Registration and Kurnool Registration of District and bounded as follows:-

East : Krishna Printing Press; West : Steps of Plaintiff; North : House of Plaintiff; South : Public Road.

Market Value : Rs.98,000/-

B- Schedule:

The House bearing No.5/100 laid in Sy.No.548 Pyki of Dhone with

Dhone Sub-Registration and Kurnool Registration of District and bounded as follows:-

East : Krishna Printing Press; West : Steps of Plaintiff; North : House of Plaintiff; South : Public Road.

Market Value : Rs.98,000/-

IV ADJ, KNL.

Copy to the Principal Senior Civil Judge, Kurnool.