sri Huzaib Ahmed Khan

1

IN THE COURT OF VII ADDITIONAL SENIOR CIVIL JUDGE

RANGA REDDY DISTRICT AT L. B. NAGAR.

PRESENT: Sri. HUZAIB AHMED KHAN, B.Com, LL.M.,

VII ADDITIONAL SENIOR CIVIL JUDGE,

RANGA REDDY DISTRICT.

Dated this the 21st Day of August, 2017

OS No. 306 of 2010

BETWEEN:-

Smt. K. Shoba Rani W/o Sri. K. Mallikarjuna Rao, Aged : 50 years, Occ : House wife, R/o. Flat No. 206, Sai Deepti Towers, Kamalanagar, E.C.I.L, Hyderabad

...Plaintiff

AND

1. Sri. Janige Komaraiah S/o J. Mallesha, Aged : 63 years, Occ : Business, R/o. H. No. 5-852, Om Sree Sai Nagar Colony, Old Alwal, Secunderabad – 500010

2. Smt. U. Laxmi Devi W/o U. Raghava Rao, Aged : 36 years, Occ : House wife, R/o. H. No. 1-5-401/2, Old Alwal,

Secunderabad – 500 010 ...Defendants

This suit is coming for final hearing before me in the presence of Sri. Syed Moosa Quasim, Advocate for the Plaintiff and of Sri Venu Raj Yadav, counsel for defendant No.1 and 2 and upon deemed hearing of both the parties and upon perusal of the record and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1. This is a suit for cancellation of registered sale deed document bearing

No. 2102/2007 registered at Sub-Registrar, Vallabhnagar, Ranga Reddy

District executed by defendant No. 1 in favour of defendant No. 2 and also for grant of ad-interim injunction restraining the defendant No. 2 from alienating

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2 to third person and also to interfere with peaceful possession and enjoyment of the suit schedule property-B pending disposal of the main suit and for costs with following brief averments of the plaint.

2. That the plaintiff is the absolute owner and possessor of the residential plot bearing No. 14 in survey No. 600 admeasuring 220 square yards situated at Old Alwal, Malkajgiri Mandal, Ranga Reddy District bounded by North: Plot

No. 15, South: 30” wide road, East: 25” wide road, West: Neighbor’s plot hereinafter called as Schedule of property-A, by virtue of Agreement of sale

dated 24-9-1989 and later got the same registered General Power of Attorney

vide document No. 479/1990 dated 21-11-1990 through defendant No. 1 after having paid total sale consideration of Rs.29,700/-. The defendant No. 1 in a malign intention and deceit manner had executed registered sale deed vide document No. 2102/2007 dated 30-4-2007 to the extent of 70 square yards or 58.52 square meters situated at Om Sri Sai Colony, Old Alwal, Alwal Village and Municipality, Malkajgiri Mandal, Ranga Reddy District bounded by North:

Plot No. 15, South: 30” wide road, East: Part of plot No. 14, West: Plot No.

20, hereinafter called as Schedule of property-B. The plaintiff acquired the suit ‘A’ schedule property from defendant No. 1 on offer to sell the residential plot at the rate of Rs.135/- per square yards a total extent of 220 square yards which comes to Rs. 29,700/- to the plaintiff and accordingly plaintiff paid

Rs.7,450/- on 17-9-1989 and paid Rs.4,801/- as on the date of entering the agreement of sale dated 24-9-1989 in presence of witnesses. Further, the plaintiff paid the balance sale consideration for the purchased residential plot on 24-4-1990 and on 19-11-1990 the sum of Rs.4,850/- and Rs.12,600/- respectively. The defendant No. 1 having received the total sale

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3 consideration had executed registered General Power of Attorney vide document No. 479/1990 dated 21-11-1990 as the plaintiff was not in a position to pay registration fee for sale deed for which the defendant No. 1 agreed. The said General Power of Attorney holds good and perfect till this day as it is still subsisting. But at the surprise of the plaintiff, the defendant

No. 1 had executed registered sale deed in favour of defendant No. 2 in respect of schedule ‘B’ property vide document No. 2102/2007 dated 30-4- 2007 for a sale consideration of Rs.1,98,000/- to make wrongful gain and thereby cause wrongful loss to the plaintiff. Thus the act of defendant No. 1 is deceptive, deliberate and with malign intention. The plaintiff came to know about the said execution when the defendant No.2 tried to interfere with the peaceful possession and enjoyment of the residential plot in the month of

September, 2009 at the time when the plaintiff intended to construct boundary wall and gate to secure the plot with external interference. Then the plaintiff with great difficulty had resisted the possession and completed the boundary wall and gate but the defendant No. 2 is constantly threatening the plaintiff with dire consequences and visiting the schedule ‘A’ and ‘B’ properties. The plaintiff had got issued a legal notice dated 12-9-2009 to the defendant No. 1 calling upon to cancel the registered sale deed document No. 2102/2007

dated 30-4-2007 immediately forthwith but the defendant No. 1 deliberately

avoided to receive the legal notice at the given address and even though the defendant No. 2 received the legal notice, he did not prefer to give any reply.

In that circumstances, the plaintiff gave paper publication in Andhra Bhoomi,

Telugu Daily news paper on 30-10-2009 calling upon the general public not to purchase the property from defendant No. 2. Further the defendant No. 1 avoided to meet the plaintiff or to appear before the Panchayath whenever

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4 called for panchayath in the presence of elders to question about the execution of sale deed in favour of defendant No. 2. Then the plaintiff issued legal notice calling upon the defendant No. 1 at the present address but defendant No. 1 avoided to receive deliberately to gain further time and thereby allowing the defendant No. 2 to sell the suit property to any third persons at higher price as the defendant No. 2 is in possession of the registered sale deed in her favour. Hence, the plaintiff filed the suit.

3. Defendant No. 1 and 2 filed written statement denying all the allegations of the plaintiff except those expressly admitted. Defendant No.

1 has executed registered sale deed in favour of defendant No. 2 vide document No. 2102/2007 dated 30-4-2007 to the extent of 70 square yards in survey No. 600 i.e. Plot No. 5-14/14 on a plot No. 14, situated at

Old Alwal, Alwal Village and Municipality, Malkajgiri Mandal, Ranga Reddy

District i.e. Schedule ‘B’ property within 220 square yards of the plaintiff’s plot. Plaintiff along with her husband without informing the defendant No.

1 had shifted their house from Old Alwal to the Kamalanagar ECIL,

Hyderabad. From the year 1990, the plaintiff is not in contact with defendant No. 1 and since then the defendant No. 1 has been in physical possession in the suit schedule ‘A’ and ‘B’ property. The defendant No. 1 had executed the ‘B’ suit schedule property in favour of defendant No. 2 for the expenditure of the defendant No. 1 children higher education but not for any wrongful gain or any malign intention. The plaintiff had executed a sale deed in favour of her husband and the said sale consideration was not deposited in defendant No.1’s bank account as such defendant No. 1 has executed a sale deed of ‘B’ schedule property

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5 in favour of defendant No. 2. Since plaintiff is residing at Kamalanagar

ECIL, as such the plaintiff is never in the possession of the suti schedule property from the date of execution of registered GPA. The defendant No.

1 himself constructed the boundary wall erected with gate and also residing in the suit schedule property ‘A’ and ‘B’. The defendant No. 1 executed the ‘B’ schedule property and made registered sale deed in favour of defendant No. 2 and from that date, the defendant No. 2 has been in physical possession of the ‘B’ suit schedule property. After receipt of summons and notices, defendant No. 1 went to SRO, Vallabnagar on 7- 4-2010 to verify as to whether plaintiff has executed any sale deed in favour of the prospective purchasers but however he found that plaintiff had executed a registered sale deed part on plot No. 14 admeasuring 150 square yards in favour of her husband namely K. Mallikarjun Rao son of

Late K. Laxmaiah @ K. Laxman Rao vide document No. 5905/2006 dated 14-11-2006 for a total sale consideration of Rs.2,59,500/-. As per the terms of the registered GPA executed by the defendant No. 1 in favour of plaintiff, the plaintiff has to deposit the entire sale consideration in the bank account of defendant No. 1 but the plaintiff with a malafide intention and illegal gain has executed the registered sale deed in favour of her husband. The plaintiff has come to the court with unclean hands and plaintiff did not mention in her plaint that she executed a sale deed in favour of her husband. The plaintiff does not have any locus standi to file the present suit. Hence, the suit of the plaintiff be dismissed with exemplary costs.

4. Basing on the above pleadings the following issues were framed.

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i) Whether the registered sale deed vide document No. 2102/2007 registered at Sub-Registrar’s office, Vallabhnagar, Ranga Reddy District is liable for cancellation?

ii) Whether the plaintiff is entitled for ad-interim injunction

as prayed for?

iii) To what relief?

5. On behalf of the plaintiff, PW1 and 2 are examined and got marked

Ex.A1 to A14. Defendants did not file any oral or documentary evidence.

6.There is no representation even by the counsel for plaintiff on 18.08.2017 when the matter is posted for arguments as such the arguments shall deemed heard and the matter is reserved for judgment being a identified pre-2012 matter.

7.Issue No. 1: Whether the registered sale deed vide document

No. 2102/2007 registered at Sub-Registrar’s office,

Vallabhnagar, Ranga Reddy District is liable for cancellation?

PW1 gave her evidence before this court saying that Ex.A13 is the agreement which she entered with defendant No. 1 in respect to plot No.

14 of survey No. 600 to an extent of 220 square yards and that she made the payment to defendant under Ex.A14, A1, A2 and that defendant executed a registered GPA in her favour which is Ex.A3. the same is in respect to the schedule A property of the plaint. According to PW1, she paid the entire sale consideration of Rs.29,700/- and was put in possession of the 220 square yards of land in plot No. 14. PW1 says there is even registered GPA in her favour and in spite of all that defendant executed Ex.A4 in the year 2007 in favour of defendant No. 2 for the portion of schedule A property which is described as schedule B

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7 property in the plaint. The plaintiff as such she filed the suit for cancellation and perpetual injunction in respect of the 70 square yards ie., schedule B property of land dealt in Ex.A4. According to PW1, she is restricting the suit only for 70 square yards but makes a mention of her entire 220 square yards as schedule ‘A’ Property. No relief is claimed for schedule A property.

8.The very title document of plaintiff is Ex.A13 an agreement of sale which is no confers any title on the plaintiff. In the case of Meghmala and

Ors. vs. G. Narasimha Reddy and Ors. (16.08.2010 - SC) :

MANU/SC/0608/2010, it is very clearly held that an agreement to sell does not create any right or title in favour of the intending buyer like PW1.

It was observed as under in the above case.

“Admittedly, there is a registered sale deed in favour of the appellant/applicant dated 21.05.1980 and there may be an agreement to sell in favour of the society dated 23.01.1976. It is settled legal proposition that an agreement to sell does not create any right, or title in favour of the intending buyer. The Society did not file suit for specific performance against the vendors prior to the execution of sale deed in favour of the appellant/applicant on 21.05.1980. The Special Court, after appreciating the entire evidence on record, came to the conclusion that the appellant/applicant was the owner and was in actual physical possession of the land and that the respondents had grabbed the said land.”

9.In the case of Suraj Lamp and Industries Pvt.Ltd. Vs. State of

Haryana [2009(7) SCC 363], the Hon’ble Supreme Court clearly stated the law in respect to agreement of sale and GPA without there being any sale deed in favour of the intending purchaser like PW1. It was held as under:

“6. The `Power of Attorney Sales', as noticed above was adopted to overcome the restrictions/prohibitions in terms of allotment and the rules of allotment of DDA governing the allotment of flats. Such transactions were obviously irregular and illegal being contrary to the rules and terms of allotment. Further, in the absence of a

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8 registered deed of conveyance, no right, title or interest in an immovable property could be transferred to the purchaser. However, the Delhi High Court in a few cases accepted such `Power of Attorney Sales' as creating an `interest' in the DDA flat which was so `transferred' and consequently, protected such interest of the purchaser by issuing injunctions or decrees preventing the vendor from further dealing with the property. This led to a general impression the `Power of Attorney Sales' were valid recognized modes of transfer and the very purpose DDA prohibiting transfers and requiring permission on payment of certain difference in price was defeated by this process. We are not presently concerned with the validity, propriety or wisdom of such judgments which virtually put the seal of approval of the court on transactions which were irregular and illegal. In fact, it is stated that DDA itself ultimately recognizes `Power of Attorney Sales' by accepting applications from purchasers under `Power of Attorney Sales' for conversion from leasehold to freehold and conveyance of the flats. We will therefore presently exclude the `power of attorney sales' of DDA flats from the purview of the present exercise.

7. What we are concerned is extension of the concept of such `Power of Attorney Sales' by execution of SA/GPA/Will with reference to freehold properties.

8. The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest" whether vested or contingent of the value of Rs. 100 and upwards to or in immovable property.

Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.

9. Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons:

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(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.

(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.

(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.

10. Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption. This kind of transactions has disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions.

11. Some states have made some efforts to control such `Power of Attorney Sales' by subjecting agreements of sale involving delivery of possession and irrevocable powers of attorney for consideration, to the same stamp duty as deeds of conveyance or by making such documents compulsorily registrable. But the steps taken are neither adequate nor properly implemented resulting in multiple transactions in regard to the same property by greedy and unscrupulous vendors and/or purchasers giving nightmares to bonafide purchasers intending to buy a property with certainty regarding title. It also makes it difficult for lawyers in tracing and certifying title. Any process which interferes with regular transfers under deeds of conveyance properly stamped, registered and recorded in the registers of the Registration Department, is to be discouraged and deprecated.

12. The present case is a typical example of the consequences of not obtaining a registered sale deed. There is apparently no reason as to why a company registered under the Companies Act should resort to such a transaction. Execution of a will by an individual bequeathing an immovable property to a company, is also incongruous and absurd. If there was a bar and the process was adopted to overcome such bar regarding sale of lands, then courts should not go to their assistance, as that would amount to perpetuating illegalities. If there was no bar, then the questions that arise are: why should a company hold a property in a state of suspended animation from 1991? How can a company `verbally' agree to sell a property to someone? What is the reason for the delay in lodging the complaints? If petitioner had purchased the property under a registered sale deed, numerous disputes, litigations and criminal proceedings could have been avoided. The illegal and irregular process of `Power of Attorney Sales' spawns several disputes relating to possession and title, and also results in criminal complaints and cross complaints and extra-legal enforcement and forced settlements by land mafia.

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13. We are therefore of the view that the situation warrants special measures. We are informed that sometime back in 2008, there was a proposal to amend Section 147 of Delhi Municipal Corporation Act, 1957 to check and discourage `power of attorney sales'. There was also a proposal to have special enactment relating to registration and recording of title in Delhi. But so far nothing appears to have fructified. It is the dream of every citizen to own a house or a plot of land. The citizens must be enabled by the government to do so with safety, security and without fear of litigation or defects in title.

14. We therefore request the Solicitor General to appear in the matter and give suggestions on behalf of Union of India. We also direct notice to the States of Punjab, Haryana, Delhi, Uttar Pradesh and Maharashtra (represented by their respective Chief Secretary/Revenue Secretary) to consider the following issues:

(a) Whether `power of attorney sales' (that is transactions involving execution of Sale Agreement/GPA/Will) instead of regular sales is prevalent in their respective states?

(b) What are the views of the respective state government in respect of such transactions?

(c) What steps have been taken and/or proposed to be taken by the respective states to deal with the chaotic situation and confusion arising from such transactions?

10.From the above case law, it is very clear that under Ex.A13, PW1 will not get any right in respect of not only the suit property but even the 220 square yards which she is claiming. The defendant No.1 and 2 in the written statement made a mention of a registered sale deed part on plot

No. 14 admeasuring 150 square yards created by the plaintiff in favour of her husband namely K. Mallikarjun Rao son of Late K. Laxmaiah @ K.

Laxman Rao vide document No. 5905/2006 dated 14-11-2006 for a total sale consideration of Rs.2,59,500/- and that the said consideration was not given to defendant No.1. This fact if true is not stated by the plaintiff in the plaint. In any view the defendants did not lead any evidence as such there is no evidence in that regard.

11.PW1 says that on coming to know of Ex.A4, she gave Ex.A5 legal notice to defendant No. 1 and then she has filed the suit for cancellation of

Ex.A4 and for the relief of perpetual injunction.

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12.In the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Ors. Reported in AIR 2010 SC 2807, the Hon’ble Supreme Court categorically held that the relief of cancellation of Section 31 of Specific

Relief Act will apply when the parties to the documents intend to cancel for revoke the document but for any third person like plaintiff who is not a party to Ex.A4, the appropriate relief is declaring Ex.A4 as null and void and not binding on the plaintiff. The Hon’ble Supreme Court observed as under:

“6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B' -- two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If 'B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if 'B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by Clause (v) of Section 7.”

13.So, therefore, the plaintiff herein has not even claimed the correct relief in respect of Ex.A4 and has simply filed a suit without disclosing the full facts.

14.Merely because the defendant did not cross examine PW1 and 2 and even thereafter they did not lead any rebuttable evidence even though there is written statement filed by the defendants. The case of the

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12 plaintiff simply cannot be accepted for that reason and has to be tested on the touch stone of the settled law. It is very clear that plaintiff has no case to enforce the relief which she is seeking in the suit. So, therefore the non contest by the defendant does not make any difference. Thus this court holds that the plaintiff is not entitled for the relief of cancellation as prayed in the plaint. This issue is answered against the plaintiff.

15.Issue No. 2: Whether the plaintiff is entitled for ad-interim injunction as prayed for?

Plaintiff has not filed a single document to show that she is in possession of the entire 220 sqare yards under Ex.A13 to afford the relief of perpetual injunction. In this case, if really by invoking the powers under

Ex.A3 there was registered GPA given by defendant No. 1 in favour of the plaintiff, the plaintiff had executed any further sale deed or registered document as contended by defendant she ought to have disclose the same. The plaintiff have not disclose the fact in that regard. The plaintiff never insisted on in the alternative the relief of specific performance of

Ex.A13. Ex.A13 is of the year 1989. This suit is filed in the year 2010 with no rights and mis-conceived relief. The very claim and contention of plaintiff is even barred by law of limitation. Plaintiff has not filed any document to show that she is in possession and entitled for the relief of perpetual injunction from interfering in the possession or any further alienation by defendant No.1 and 2 in respect to schedule A and B property. This issue is also answered against the plaintiff.

16.Issue No. 3: To what relief?

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It is very clear that by preponderance of proof, the plaintiff is not able to sustain her suit and she is not able to establish that she is entitled for the relief as prayed in the plaint.

17.In the result, the suit of the plaintiff is dismissed. Each party to bear their own costs.

Dictated to the Stenographer, transcribed by her, added by

me, corrected and pronounced by me in the open Court on this the 21st Day of August, 2017.

VII ADDITIONAL SENIOR CIVIL JUDGE,

RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS:-

PW-1 : Smt. K. Shoba Rani- NONE – PW-2 : Sri. K. Anil Kumar

EXHIBITS MARKED

FOR PLAINTIFF:-

Ex.A1 is the receipt dated 24-4-1990 for Rs.4,850/-

Ex.A2 is the receipt dated 19-11-1990 for Rs.12,600/-

Ex.A3 is the registered GPA 21-11-1990 document No. 429/1990

Ex.A4 is the certified copy of the sale deed dated 30-4-2007 bearing document No. 2102/2007

Ex.A5 is the office copy of legal notice 12-9-2009 issued by plaintiff

Ex.A6 is the postal receipt dated 14-9-2009 No. 4118

Ex.A7 is the postal receipt dated 14-9-2009 No. 4117

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Ex.A8 is the returned postal cover under RPAD

Ex.A9 is the postal acknowledgement

Ex.A10 is the encumbrance certificate dated 20-1-2011 issued by the SRO, Vallabnagar

Ex.A11 is the market value certificate dated 28-1-2010 (in two pages)

Ex.A12 is the local edition of Andhra Bhoomi dated 30-10-2009

Ex.A13 is the original agreement of sale dated 24-9-1989

Ex.A14 is the receipt dated 17-9-1989

FOR DEFENDANTS:- -NIL-

VII ADDITIONAL SENIOR CIVIL JUDGE,

RANGA REDDY DISTRICT.

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IN THE COURT OF VII ADDITIONAL SENIOR CIVIL JUDGE ::

RANGA REDDY DISTRICT AT L. B. NAGAR

PRESENT: Sri. HUZAIB AHMED KHAN, B.Com, LLM

VII ADDITIONAL SENIOR CIVIL JUDGE

RANGA REDDY DISTRICT

Dated this the 10th Day of August, 2017

O.S. No. 700 of 2015

BETWEEN:-

Smt. Peddiboyina Vijaya Lakshmi, W/o. P. Satyanarayana Yadav, Aged about 54 years, Occ : House wife, R/o. H.No. 12-13-426, Street No. 1, Tarnaka, Secunderabad – 17 … Plaintiff

AND

Mr. Puvvada Satyanarayana, Hotel Nacharam, H.No. 6-8 (4-6-8) & 4-6-8/1(6-8/A), Nacharam Main cross roads, Ranga Reddy District – 500 076

and

H.No. 4-6-10/20, First Floor, Savarkar Nagar, Nacharam,

Ranga ReddyDistrict – 500 076 ... Defendant

This suit is coming for final hearing before me in the presence of Sri. K. Janardhan Reddy, Advocate for the plaintiff and of Sri. S. Vijay Kumar, Advocate for the defendant and upon hearing the arguments of learned counsel for plaintiff and upon perusal of the record and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.This is a suit for eviction and claim of recovery of arrears of rent in respect of the suit schedule property i.e. House consisting of two shutters and back two rooms in the ground floor bearing No. 6-8 (4-6-8) and 4-6-8/1 (6-8/A) admeasuring approximately 1000.00sq. feet out of 4158.00sq.feet

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2 situated at Savarkar Nagar, Nacharam, Hyderabad. The plaint averments in brief are as under.

2.Plaintiff says she is the owner of the suit schedule property (demised premises) and defendant approached her with a request to let out the premises on monthly rent of Rs.50,000/- initially and with an increase of 10% per year and the plaintiff agreed to let out the same. Accordingly, the defendant entered into a lease agreement on 15-12-2011 being registered on 11-4-2012 and the lease was commenced with effect from 15-12-2011 for a period five years. Thereafter the defendant started the hotel business in the said demised premises as tenant. Since February, 2015 onwards, the defendant failed to pay the monthly rents to the plaintiff and in spite of repeated demands by the plaintiff, the defendant failed to pay the rents and thus the defendant has to pay the arrears of rent of Rs.1,99,650/-. As per

Clause I of the lease agreement, if the defendant failed to pay monthly rents regularly, in that event, the defendant has to pay Rs.100/- per day as a penalty till paying the arrears of rent and the said amount comes to Rs.

9,200/- for three months and in all the defendant has to pay the arrears of rents of Rs.2,08,850/-. The defendant violated the terms and conditions of the lease agreement and so plaintiff got issued a legal notice dated 6-5- 2015 through his counsel for termination of tenancy between the plaintiff and defendant and the said notice was returned as ‘unclaimed’. As per

Clause C(9) of the lease agreement, if the defendant failed to pay monthly rent for three months, in that event, the lease shall be terminable and the plaintiff is entitled for recovery of possession. Hence, the plaintiff filed the

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3 suit as the defendant failed to pay the arrears of rent as well vacate the premises.

3.The defendant filed written statement denying the plaint averments as unjust, misconceived, untenable and hence liable to be dismissed. He further stated that the plaintiff is not in habit of issuing the money receipt for the rents collected as envisaged in the Clause 1 of the A of the Lease

Agreement dated 15-12-2011 and that whenever the defendant demanded the money receipt, the plaintiff used to dodge the matter and thus the plaintiff herself has contravened the clause of the lease agreement and question of paying the arrears by defendant does not arise. He further stated that plaintiff is an influential person and along with her husband, she might have managed the postal authorities to return the legal notice and if this defendant had received the notice, he would have definitely preferred to give reply to the plaintiff as a lawful citizen of the Nation. He further stated that the rents remained unpaid by him from the month of May, 2015 onwards as plaintiff and her husband did not come forward to collect the rent from May, 2015 onwards. He further stated that plaintiff and her husband had allowed a Tea Stall be set up adjacent to his Hotel and so defendant has to face stiff competition from the Tea Stall and further the plaintiff with a malafide intention created a ground for eviction of the defendant. He further stated that he paid the rents for the months of May and June, 2015 also after legal notice issued by the defendant and so he is not in unauthorized occupation of the premises but continuing to be the tenant of the plaintiff and since the plaintiff has waived the legal notice,

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4 question of defendant vacating the premises does not arise and therefore the suit of the plaintiff is liable to be dismissed.

4.Basing on the above pleadings, the following issues were framed:

i) Whether the plaintiff and defendant entered into registered lease agreement dated 15-12-2011 in respect to the suit

schedule property as averred in the plaint?

ii) Whether the defendant defaulted in payment of rents from

February, 2015 and is due Rs.2,84,400/- as averred in the plaint?

ii) Whether the plaintiff is entitled for the relief of eviction of

suit schedule property as averred in the plaint?

iii) Whether the defence set up defendant tenable and

permissible?

iv) To what other relief?

5.The counsel for plaintiff says clearly the plaintiff has established her case before this court and there is no evidence lead by the defendant to rebut the claim and contention of the plaintiff and he further says defendant is a defaulter in payment of rents and in spite of direction to pay the rents has not paid the rents and is due rents and as such there is valid termination of notice given to the defendant terminating the lease of the suit schedule property and that the defendant is liable to be evicted and the possession of the suit property be given and handed over to the plaintiff and even the arrears of rent as prayed by the plaintiff be decreed.

6.The defendant herein filed his written statement, cross examined

PW1 and thereafter did not lead evidence. On the contrary moved transfer application 2008/2017 to transfer the case and the same was dismissed.

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5

Thereafter on the defendant failing to lead evidence and argue the matter, his side arguments are deemed heard.

7.The plaintiff herself examined as PW1 and got marked Ex.A1 to

Ex.A4 to prove his case. Ex.A1 is the original registered lease agreement

dated 15-12-2011, Ex.A2 is office copy of the legal notice dated 6-5-2015,

Ex.A3 is returned postal covers (2nos.) dated 18-5-2015 and Ex.A4 is photograph.

8.Issue No.1: Whether the plaintiff and defendant entered into

registered lease agreement dated 15-12-2011 in respect to the

suit schedule property as averred in the plaint?

PW1 the landlord/lessor of the suit schedule property marked Ex.A1 the original registered lease agreement entered into by herself and the defendant. The said Ex.A1 is dated 15-12-2011 and the same is signed by both PW1 and the defendant. As the said lease agreement is a registered lease agreement in respect to the suit schedule property, which fact is not denied even by the defendant. It is thus very clear that there is a registered lease agreement between the plaintiff and the defendant in which the plaintiff has received a sum of Rs.6,00,000/- as advance security money from the defendant. The said agreement commenced from 15-12-2011 and was for a period of five years which was completed on 14-12-2016.

So, therefore, from the terms of Ex.A1, it is very clear that as on date, the lease period agreement between PW1 and the defendant has come to an end in the light of the valid legal registered lease agreement Ex.A1. Thus the contractual period of the lease as per the agreement has also come to an end. This issue is thus answered in favor of the plaintiff.

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6

9.Issue No.2: Whether the defendant defaulted in payment of rents

from February, 2015 and is due Rs.2,84,400/- as averred in the

plaint?

PW1 says he gave Ex.A2 legal notice to the defendant on 6-5-2015 as the defendant was not paying the rents regularly and as on the date of

Ex.A2, the rent was Rs.66,555/- per month and there was default of

Rs.2,08,850/-. In the said Ex.A2, it was clearly mentioned that defendant was defaulting in not paying the rents since February, 2015 and by May, 2015, the due have accumulated to Rs.2,08,850/-. Ex.A2 was sent under

Ex.A3 and the same was returned with endorsement ‘door lock and intimation served’. The said Ex.A2 was sent through Ex.A3 at the Savarkar

Nagar house address as well as the hotel address of the defendant and he did not receive the same. In his written statement also the defendant has admitted the due rents from May 2015 and blamed the plaintiff husband not turning up to take the rents. So the defendant too is admitting that he is due the rents.In her cross examination, PW1 says that they were passing the receipts to the defendant after he pays the rents and even entries in the book were made and that her husband is aware of the same.

10.This suit was filed in the month of June and in the month of June, the defendant was Rs.2,84,400/-. The defendant by not contesting the suit and not saying for what months he paid the rent, he is admitting the claim and contention of plaintiff and therefore this court holds that defendant is a defaulter and liable to pay the rents from February, 2015 @ Rs.66,550/- per month. This issue is answered against the defendant and in favor of the plaintiff.

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7

11.Issue No.3: Whether the plaintiff is entitled for the relief of

eviction of suit schedule property as averred in the plaint?

As mentioned above, the lease period has come to an end in the month of December, 2016. Before that there is a clear term in Ex.A1 that if the defendant defaults in payment of rents, the plaintiff can seek the eviction of the defendant for nonpayment of rent. Plaintiff validly issued

Ex.A2, demanded the rents and even stated that the lease is terminated and gave 15 days time to the defendant to vacate and hand over the actual vacant physical possession of the suit premises and on the failure of the same, this suit was filed. In the cross examination of PW1, defendant could not elicit anything to support as to why he should not be evicted.

12.The law on this aspect is clear and the same is highlighted in the following cases. In the case of Nopany Investments (P) Ltd.Vs. Santokh

Singh (HUF) AIR2008SC673 2007(14)SCALE90, (2008)2SCC728 it was clearly held as under.

“In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. This view has also been expressed in the decision of this court in V. Dhanapal Chettiar v. MANU/SC/0505/1979 : Yesodai Ammal [1980]1SCR3’

13. In the case of Park Street Properties (Pvt.) Ltd.

Vs. Dipak Kumar Singh and Ors. reported in

MANU/SC/0960/2016= AIR2016SC4038.The law and default of the tenant in paying the rents was reiterated as under as a good ground to direct eviction of the tenant.

“8. At the outset, it would be useful to refer to the statutory provisions at play in the instant case, which are Sections 106 and 107 of the Act, which read as under:

106. Duration of certain leases in absence of written contract or local usage:

In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of

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8 immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.

Every notice under this Section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

107. Leases how made:

A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.

All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:

PROVIDED that the State Government from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

(Emphasis laid by this Court)

9. A perusal of Section 106 of the Act makes it clear that it creates a deemed monthly tenancy in those cases where there is no express contract to the contrary, which is terminable at a notice period of 15 days. The Section also lays down the requirements of a valid notice to terminate the tenancy, such as that it must be in writing, signed by the person sending it and be duly delivered. Admittedly, the validity of the notice itself is not under challenge. The main contention advanced on behalf of the Respondents is that the impugned judgment and order is valid in light of the second part of Section 107 of the Act, which requires that lease for a term exceeding one year can only be made by way of a registered instrument.

10. At this stage, it will also be useful to examine Clause 6 of the agreement dated 07.08.2006, which reads as under:

6. Default

In the event of any default on the part of the Tenants in making payment of the rent for 3 consecutive months or in the event of any breach of any the terms and conditions herein contained and on the part of the tenants to be performed and observed and the landlord shall be entitled to serve a notice on call upon the tenants to make payment of the rent and to remedy for the breach of any of the remaining terms and conditions herein contained and if within a period of 30 days, the Tenants shall fail to remedy the breach the landlord shall be entitled to determine or terminate the tenancy.

(Emphasis laid by this Court)

Thus, in terms of Clause 6 of the agreement, the landlord was entitled to terminate the tenancy in case there was a breach of the terms of the agreement or in case of non-payment of rent for three consecutive months and the tenants failed to remedy the same within a period of thirty days of the receipt of the notice. The above said Clause of the agreement is clearly contrary to the provisions of Section 106 of the Act. While Section 106 of the Act does contain the phrase 'in the absence of a contract to the contrary', it is a well settled position of law, as pointed out by the learned senior Counsel appearing on behalf of the Appellant that the same must be a

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9 valid contract.

11. It is also a well settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties. A three Judge bench of this Court in the case of Anthony v. KC Ittoop and SonsMANU/SC/0443/2000 : (2000) 6 SCC 394, held as under:

A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus.........

When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed.

..................

Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains un- rebutted.

(Emphasis laid by this Court)

Thus, in the absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act.

12. Thus, the question of remanding the matter back to the Trial Court to consider it afresh in view of the fact that the same has been admitted in evidence, as the High Court has done in the impugned judgment and order, does not arise at all. While the agreement dated 07.08.2006 can be admitted in evidence and even relied upon by the parties to prove the factum of the tenancy, the terms of the same cannot be used to derogate from the statutory provision of Section 106 of the Act, which creates a fiction of tenancy in absence of a registered instrument creating the same. If the argument advanced on behalf of the Respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of the Clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase 'contract to the contrary' in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very

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10 intent. As is evident from the cases relied upon by the learned senior Counsel appearing on behalf of the Appellant, the relevant portions of which have been extracted supra, the contract between the parties must be in relation to a valid contract for the statutory right Under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable.

13. In view of the above reasoning and conclusions recorded by us, the impugned judgment and order passed by the High Court is set aside. The judgment and order passed by the Trial Court is restored. The Appeal is accordingly allowed. No costs.”

14. Thus it is very clear that Pw.1 established that she is entitled to get back the possession of the plaint schedule property and that the defendant to handover the vacant possession of the same. Defendant is thus holding over the suit premises when was asked to vacate from the suit premises and to give its possession.

15.Thus, it is very clear that even the agreement has come to an end and there was valid termination and notice given in the form of Ex.A2 and even otherwise this very filing of the suit is notice for termination for the defendant who is not paying the rents as such this court holds that plaintiff is entitled for the relief of eviction as prayed in the suit. This issue is also answered in favour of the plaintiff.

16.Issue No.4: Whether the defence set up defendant tenable and permissible?

The defendant has failed to lead evidence and contest the suit as such the averments in the written statement stands not proved before this court. This issue is answered against the defendant.

17.Issue No.5: To what relief ?

From the discussion above, it is clear that plaintiff is able to establish her case before this court and she is entitled for the reliefs as prayed in the plaint as there is preponderance of proof in her favor.

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11

18.In the result, the suit of the plaintiff is decreed with costs as prayed in the plaint. Three months time given to the defendant to vacate the premises.

Dictated to the Stenographer Grade-III, Transcribed

by him, corrected and pronounced by me in the open Court on this the 10 th day of August, 2017.

VII ADDITIONAL SENIOR CIVIL JUDGE

RANGA REDDY DISTRICT

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT:-

PW-1 : Smt. P. Vijaya Lakshmi- NONE –

EXHIBITS MARKED

FOR PLAINTIFF:-

Ex.A1: Original registered lease agreement dated 15-12-2011

Ex.A2: Office copy of the legal notice dated 6-5-2015

Ex.A3: Returned postal covers (2nos.) dated 18-5-2015

Ex.A4: Photograph

FOR DEFENDANT :- -NIL-

VII ADDITIONAL SENIOR CIVIL JUDGE

RANGA REDDY DISTRICT

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1

IN THE COURT OF VII ADDITIONAL SENIOR CIVIL JUDGE :: RANGA

REDDY DISTRICT AT L. B. NAGAR.

PRESENT: Sri. HUZAIB AHMED KHAN, B.Com, LLM.,

VII ADDITIONAL SENIOR CIVIL JUDGE,

RANGA REDDY DISTRICT.

Dated this the 11th Day of August, 2017.

O.S. No. 1858 of 2012

BETWEEN:-

Sri. E. Naresh S/o Sri E. Venkaiah, Aged about 36 years, Occ : Business, R/o. H.No. 4-11-246, Chaitanyapuri, Gandamvariguda Road, Nalgonda District … Plaintiff

AND

1. Smt. Lalitha Ananth Sarma Janwadkar, W/o Dr. Ananth Sarma Janwadkar Aged about 74 years, Occ : House wife, R/o. H.No. 3-10-112, Gokhale Nagar, Ramanthapur, Hyderabad

2. M/s. Sri Sapthagiri Constructions, Rep. by its Managing Partner Sri M. Vijay Kumar, S/o. Sri. M. Janardhan, Aged about 36 years, Occ : Business, Office, R/o H.No. 11-13-149, Dwaraka Nagar, Near Swagath Function Hall,

Kothapet, Hyderabad... Defendants

This suit is coming for final hearing before me in the presence of Sri. P.S.P.Suresh Kumar, Advocate for the plaintiff and defendant No. 1 set ex-parte and M/s. Anantha Anjaneyulu, Advocate for defendant No. 2 filed written statement and upon hearing the arguments of counsel for plaintiff and upon perusal of the record and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.This is a suit for Specific Performance filed by the plaintiff to direct the defendants to execute a registered sale deed in favour of plaintiff in respect of suit schedule property and deliver peaceful possession of the same to

OS 1858 of 2012 VII ADDITIONAL SENIOR CIVIL JUDGE

2 the plaintiff and if the defendants fail to execute the registered sale deed by the Hon’ble Court may itself execute the same on behalf of the defendants in favour of the plaintiff and put him in possession and for costs with the following averments:

2.Plaintiff says defendant No. 1 is the owner and possessor of land bearing plot Nos. 1 and 2 admeasuring an area of 444 Sq. yards or its equivalent to 371.24 sq.mtrs situated in survey No. 102/1, Snehapuri

Colony, Nagole Village, Uppal Revenue Mandal, Ranga Reddy District under GHMC, L.B.Nagar Circle. Defendant No. 1 and 2 have entered into a registered Development agreement-cum-GPA vide document No.

6090/2009 and as per the said agreement, both defendants shared the flats in the ratio of 50% : 50% and accordingly, defendant No. 2 started construction of flats. Defendant No. 2 being well known to plaintiff, offered to sell flat No. 302 situated in survey No. 102/1, Snehapuri Colony, Nagole

Village, Uppal Revenue Mandal, Ranga Reddy District under GHMC,

L.B.Nagar Circle which fell to his share to the plaintiff. The plaintiff agreed to purchase the suit plot for a total sale consideration of Rs.9,51,000/- and entered into a registered agreement of sale on 26-7-2010 with defendant

No. 2 vide document No. 4415/2010 registered in the office of S.R.O,

R.R.District East and in that regard, the plaintiff paid an advance part sale consideration of Rs.8,00,000/- to defendant No. 2 and further plaintiff agreed to pay the balance sale consideration of Rs.1,51,000/- at the time of registration of sale deed. As per the agreement of sale, no specific time was fixed for the registration of sale deed and defendant No. 2 agreed to provide certificate of Encumbrance for the last 13 years as nil, no due

OS 1858 of 2012 VII ADDITIONAL SENIOR CIVIL JUDGE

3 certificate from nearby banks and also certificate to the extent that the suit plots are not covered by protected tenancy or ceiling and any other clearance for the effective transfer of schedule plots but defendant No. 2 did not furnish the same. As per agreement of sale, plaintiff is ready and willing to perform his part of contract of paying the balance sale consideration but defendant No. 2 has not come forward and not submitted the above certificates to the plaintiff inspite of repeated requests. Finally the plaintiff being satisfied about the title and other details of suit plot had approached the defendant No. 2 and paid the balance sale consideration of

Rs. 1,51,000/- on 26-1-2012 and defendant No. 2 acknowledge the receipt of the said amount. On that the defendant No. 2 informed the plaintiff that he would execute the registered sale deed and hand over the possession of suit plot in the last week of June, 2012. The plaintiff waited upto the end of June, 2012 and approached the defendant No. 2 on 1-7-2012 and requested to execute registered sale deed and deliver the flat but defendant No. 2 requested the plaintiff for further time. Since the defendant No. 1 gave Development agreement-cum-GPA, the defendant

No. 2 has to execute the registered sale deed on behalf of both of them.

Since the plaintiff had discharged his part of contract and defendants are purposefully harassing the plaintiff by not executing the registered sale deed, the plaintiff filed the suit. Plaintiff sent a legal notice to defendants through his counsel on 6-7-2012 but the defendants having received the same had not replied.

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4

3.Though Mr. Afshan Ahmed, Advocate, filed vakalath on behalf of defendant No. 1, he is called absent failed to file written statement within the stipulated and hence defendant No. 1 is set ex-parte.

4.The defendant No. 2 filed written statement with the following averments:

The suit of the plaintiff is neither maintainable in law nor on facts and the same is liable to be dismissed. The defendant No. 2 never offered to sell the suit plot and as a matter fact, the defendant No. 2 out of acquaintance with the plaintiff requested to advance a sum of Rs.8,00,000/- towards hand loan to meet his personal requirements. On that the defendant No. 2 offered the suit plot to furnish as security for the said hand loan amount and the suit flat was allotted to defendant No. 2 out of his share in the Development Agreement-cum-GPA which was entered into between defendant No. 1 and 2. Since there was no specific document for the suit flat, the plaintiff suggested to execute an agreement of sale in his favour and accordingly, defendant No. 2 executed an agreement of sale as security for the loan amount of Rs.8,00,000/- with 24% interest per annum.

It was also specifically agreed by both plaintiff and defendant No. 2 that they would cancel the Agreement of sale on repayment by defendant No. 2.

The area of suit flat is 1080 SFT and market value is Rs.30,00,000/- and the condition mentioned in the agreement of sale is not even 1/3 of the market value. The conditions mentioned in the agreement of sale are only nominal. At the time of advancing the loan to the defendant No. 2, plaintiff obtained two signed blank pro-notes, two signed blank cheques pertaining to Development Credit Bank, Gaddiannaram Branch, Hyderabad and

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5

Federal Bank Ltd, Secunderabad Branch in addition to one signed Rs.100/- non-judicial stamp empty paper and some signed blank white papers with an intention to knock away the suit flat for cheaper value. Plaintiff received the interest amount of Rs.16,000/- regularly from defendant No. 2 without any default up to December, 2011. Further the defendant No. 2 paid a sum of Rs.3,60,000/- and Rs. 2,10,000/- amounting to Rs.5,70,000/- towards part payment of loan amount through two cheques bearing Nos.

026334 and 026335 drawn on Federal Bank Ltd, Secunderabad Branch and plaintiff enchased the said cheques. Taking advantage of the said registered agreement of sale, the plaintiff filed the present suit even though he did not pay any amount much less Rs.1,51,000/- and converted the white papers into a receipt which were obtained by the plaintiff at the time of advancing the loan. The plaintiff continued to accept the interest till

June, 2012 and thereafter stopped receiving the interest. As a matter of fact no legal notice was received by defendant No. 2 and there is no cause of action and since there is no real contract between the plaintiff and defendant No. 2, the suit is not maintainable and liable to be dismissed with costs.

5. Basing on the pleadings the following issues were framed:

i)Whether the plaintiff and the defendant entered into an agreement there by plaintiff agreed to purchase defendant No.2s share of flat for a sale consideration of Rs. 9,51,000/- and paid an amount of Rs. 8.00Lakhs as advance sale consideration to defendant No.2 who passed a receipt in that regard?

ii)Whether time was not the essence of contract?

iii)Whether the defendant defaulted in registration of the sale deed in respect to the suit property?

OS 1858 of 2012 VII ADDITIONAL SENIOR CIVIL JUDGE

6 iv)Whether the plaintiff is entitled for relief of specific performance of agreement and recovery of possession of suit property as prayed in the plaint?

v)Whether there is no agreement of sale between plaintiff and defendant No.2 who only took money from plaintiff and only by way of security the agreement was executed with no promise to perform?

vi)Whether the value of the suit property is Rs. 30 lakhs as averred in the Written Statement?

vii)Whether ht plaintiff obtained blank signatures from the defendant and misusing the same?

viii)Whether the suit of the plaintiff is not maintainable in the eye of law?

ix)To what other relief?

6.Plaintiff himself was examined as PW1 and got marked Ex.A1 to

Ex.A6 in order to support his case. No evidence is lead in on behalf of the defendant No. 2 who is contesting the case.

7.Heard the counsel for the plaintiff.

8.Issue No. 1: Whether the plaintiff and the defendant entered into

an agreement there by plaintiff agreed to purchase defendant

No.2’s share of flat for a sale consideration of Rs. 9,51,000/- and

paid an amount of Rs. 8.00Lakhs as advance sale consideration

to defendant No.2 who passed a receipt in that regard?

Issue No. 2: Whether time was not the essence of contract?

PW1 says he entered into Ex.A1, the original agreement in respect to the suit schedule property and paid an advance sale consideration of

Rs.8.00 Lakhs and thereafter the balance sum of Rs.1,51,000/- was paid by PW1 to defendant No. 2 under Ex.A2 receipt. Ex.A1 is a registered agreement of sale and Ex.A2 is also receipt establishing the payment by

PW1 to defendant No. 2.

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7

9.From the contents of Ex.A1 and even the notice that was given to enforce Ex.A1 i.e. Ex.A3, it is very clear that the plaintiff entered into valid legal agreement with the defendant No. 2 who was the developer of the property and the suit property fell to the share of defendant No. 2.

10.In respect to the balance sale consideration, the term was that it should be paid at the time of registration. Ex.A1 is dated 26-7-2010 whereas the balance amount was paid on 26-1-2012. Even after receipt of full sale consideration, defendant No. 2 did not execute the sale deed as such Ex.A2 notice was given. The same was sent under Ex.A4 and was received by defendant No. 1 and 2 and there is no response and reply by them in the form of reply notice. Thus this court concludes that there is valid legal agreement between PW1 and the defendants and the time was not essence of the contract as such these two issues are answered in favour of the plaintiff and against the defendant.

11.Issue No. 3: Whether the defendant defaulted in registration of the sale deed in respect to the suit property?

And

Issue No. 4: Whether the plaintiff is entitled for relief of specific

performance of agreement and recovery of possession of suit

property as prayed in the plaint?

It is very clear that defendant No. 2 was acting on behalf of defendant

No. 1, the owner and in spite of receiving the full sale consideration did not execute the sale deed for which there was a notice given in the form of

Ex.A3 sent under Ex.A4 and A5 and that in spite of that the defendant did not execute and registered the sale deed as such this suit is filed. In the

Clause 9 of Ex.A1 at page No. 4, it is clearly agreed between the parties

OS 1858 of 2012 VII ADDITIONAL SENIOR CIVIL JUDGE

8 that if the vendor fails to execute the registered sale deed in favour of the vendee that is the plaintiff herein, then plaintiff is entitled for specific performance and cost. PW1 was not cross-examined by defendant no.2 and there is no rebuttal evidence lead by the defendant No.2. Hence as the defendants defaulted in execution of the registered sale deed as such plaintiff is entitled for the relief of registered sale deed in respect to the suit property as prayed in the plaint. These issues are also answered in favour of the plaintiff and against the defendants.

12.Issue No. 5: Whether there is no agreement of sale between

plaintiff and defendant No.2 who only took money from plaintiff

and only byway of security the agreement was executed with no

promise to perform?

It was the specific defence of the defendant No. 2 that he took only the money from the plaintiff but never executed Ex.A1 or A2. Defendant

No. 2 did not cross examine PW1. Further defendant No. 2 did not lead rebuttable evidence to sustain its defence in the written statement. There is clear default on the part of the defendant No. 2 to establish its stand taken in the written statement. The versions stated by defendant No. 2 that

Ex.A1 is only a name sake and nominal document meant to be acted as security document for the loan taken is not established. Ex.A1 is a registered document which has its own presumptive value in the eye of law.

Defendant No. 2 is developing the property and he is well aware of the consequences of registering the document. Simply by taking the defence in the written statement and not establishing the same is not going to help the case of defendant No. 2. On the contrary, the plaintiff has clearly established that there was valid agreement in respect to the suit flat and the full sale consideration was paid and since the defendant defaulted as

OS 1858 of 2012 VII ADDITIONAL SENIOR CIVIL JUDGE

9 such the suit is filed. So, therefore this court holds that defendant No. 2 is failing to establish this issue whose burden was there entirely on defendant

No. 2. Defendant No. 2 is failing to discharge the said burden as such this issue is also answered against the defendant No. 2.

13.Issue No. 6: Whether the value of the suit property is Rs.30.00 Lakhsas averred in the Written Statement?

To establish that the suit property is worth of Rs.6.00 Lakhs, it was again incumbent on defendant No. 2 to establish the market value. The same is not established. Hence merely by way of averment, defendant pleaded the same but did not prove it. Defendant is failing to establish that the consideration is inadequate and hence the agreement Ex.A1 is not liable to be executed. It is clear that both parties have voluntarily agreed into an agreement and the consent is free. Therefore, inadequacy of consideration is not the basis to refuse the relief of specific performance.

This issue is answered against the defendants.

14.Issue No. 7: Whether ht plaintiff obtained blank signatures from the defendant and misusing the same?

and

Issue No. 8: Whether the suit of the plaintiff is not maintainable

in the eye of law?

Again the burden of these two issues is on the defendant since the defendant did not cross examine PW1 nor lead any rebuttable evidence as such this court holds that defendant is failing to establish these two issues.

15.Issue No. 9: To what relief?

OS 1858 of 2012 VII ADDITIONAL SENIOR CIVIL JUDGE

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It is clear from the discussion above, that the plaintiff established his case against the defendants and there is preponderance of proof in favour of the plaintiff.

16.In the result, the suit of the plaintiff is decreed with costs as prayed in the plaint.

Dictated to the Stenographer Grade-III,

Transcribed by her, corrected and pronounced by me in the open Court on this the 11 th day of August, 2017.

VII ADDITIONAL SENIOR CIVIL JUDGE

RANGA REDDY DISTRICT

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS:-

PW-1 : Sri. E. Naresh -None-

EXHIBITS MARKED

FOR PLAINTIFF:- Ex.A1:Original Agreement of sale dated 26-7-2010 Ex.A2: Receipt dated 26-1-2012 Ex.A3: Office copy of legal notice dated 6-7-2012 Ex.A4: Postal receipt dated 10-7-2012 Ex.A5: Courier acknowledgement Ex.A6: Encumbrance certificate from 1-10-2007 to 11-6-2012

FOR DEFENDANT :- -Nil-

VII ADDITIONAL SENIOR CIVIL JUDGE

RANGA REDDY DISTRICT

OS 1858 of 2012 VII ADDITIONAL SENIOR CIVIL JUDGE

1

IN THE COURT OF VII ADDITIONAL SENIOR CIVIL JUDGE :: RANGA

REDDY DISTRICT AT L. B. NAGAR.

PRESENT: Sri. HUZAIB AHMED KHAN, B.Com, LL.M.

VII ADDITIONAL SENIOR CIVIL JUDGE

RANGA REDDY DISTRICT.

Dated this the 18th Day of August, 2017

O.S. No. 634 of 2016

BETWEEN:-

Mahanth Sri Satyam Shivam Sundaram Das JI @ Satyam Shivam Mahathyagi S/o. Sri Sant Ram Krishna Das Mahathyagi Ji Occ : Poojari of Sri Ramchander Deval (Temple)/Mutt, Shamshabad Village, Shamshabad Mandal, Ranga Reddy District Rep. By his General Power of Attorney holder Sri G. Surender Kumar, S/o. Sri G. Jagath Moha, Aged about 34 years, Occ : Poojari, R/o H.No. 9-1-333/H/13, Laxminagar, Langer Houz, Hyderabad … Plaintiff

AND

Sri. T. Arvind Kumar S/o. Late Venkateshwarlu, Aged about 45 years, R/o. H.No. 11-3-963/1, New Mallepally, Gokulnagar, Vijaynagar Colony Post,

Hyderabad – 67 ... Defendant

This suit is coming for final hearing before me in the presence of Sri. Rathod Prakash, Advocate for the plaintiff and written statement forfeited of defendant and upon hearing the arguments of learned counsel for plaintiff and upon perusal of the record and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.This is a suit for perpetual injunction filed by the plaintiff against the defendant, his henchmen, agents or any other person or persons claiming through or under them from interfering with the peaceful performance of Poojas and Temple activities/functions in Sriramchanderji

OS 634 of 2016 VII ADDL. SENIOR CIVIL JUDGE, R.R.DIST.

2

Mutt/Temple i.e. suit schedule property situated in survey No. 668 admeasuring Ac.2-13 gutnas of Shamshabad Vilage and Shamshabad

Mandal, Ranga Reddy District with the following brief averments in the plaint.

2.Plaintiff says he is the Poojari of Sri Ramchander Deval (Temple)/Mutt situated in suit schedule property and the said Mutt was established and constructed in time immemorial by one Mahant's Raghu

Charan Das being maintained by him and later it was maintained by

Mahant Govind Das, Mahant Ram Charan Das, Mahant Seetharam Das,

Mahant Balabhadra Das. The name of said Balabhadra Das who was the last Mahant of the said Mutt was shown as Priest in the Khasra pahani for the year 1954-55 in respect of the suit schedule property. After demise of

Sri Mahant Balabhadra Das, no Mahant was nominated or appointed and no Poojas were performed in the Mutt due to which the temple was not looked after by any person. All the Mahants who maintained the Mutt and performed Poojas were also exhibited in the row of Samadhis. Vide letter

dated 10-10-2014, Srimate Ramanandaya Namah, Sri Mahant Sureshdas

JI Maharaj of Sri Mahant Akhil Bharatiya Sripanch Ramandaya Digambar

Akhada Ayodha which is highest authority of all Ramalays and Mutts in the

Country had appointed the plaintiff as Mahant to perform Santh Seva,

Goseva, Athidhidiseva as per Hindu traditions in Ramachandra

Mutt/Temple at suit schedule property. Defendant is no way concerned with the Mutt/Temple land but he is frequently trying to disturb the Poojas and other related functions and also trying to grab the land of the said Mutt to create troubles to the plaintiff but the plaintiff with the help of devotees

OS 634 of 2016 VII ADDL. SENIOR CIVIL JUDGE, R.R.DIST.

3 and neighboring village people prevented the acts of the defendant. The defendant is an influential person having support of political leaders and he is trying to interfere with the activities of the said Mutt/temple only with a malafide intention to grab the land of the said Mutt. On 14-4-2016, the defendant along with some other antisocial elements went to the suit land and threatened the plaintiff with dire consequences and warned the plaintiff not to perform the Poojas and any concerned activities in the suit land by throwing away the God idles and temple related articles. Hence, the plaintiff filed the suit. Plaintiff being Mahant and Poojari of the said Mutt cannot come to the court to file the case and represent the matter before this

Court, as such he appointed Sri. G. Surender Kumar as registered GPA holder to file the case and give evidence. Hence the suit.

3.Though Mr. J. Raghu Babu filed vakalat on behalf of the defendant, he did not chose to file written statement within the stipulated time and hence his right to file written statement is forfeited.

4.On behalf of Plaintiff, his general power of attorney examined as PW1 and got marked Ex.A1 to A5 in order to support his case.

5.Heard the counsel for plaintiff.

6.Point for Consideration is : Whether the plaintiff is entitled for

the relief of perpetual injunction in respect to the suit schedule

property as prayed in the plaint ?

7.Point : PW1 is the General Power of Attorney of Mahanth Sri

Satyam Shivam Sundaram Das Ji @ Satyam Shivam Mahathyagi. Ex.A5 is the copy of General Power of Attorney. PW1 is empowered to give

OS 634 of 2016 VII ADDL. SENIOR CIVIL JUDGE, R.R.DIST.

4 evidence. Even in Ex.A5, survey No. 668 and 660 of Shamshabad Village is mentioned without the extent and boundaries of the land to which the authority is given. It is the contention of PW1 that plaintiff is Poojari of the

Sriramchanderji Mutt/Temple situated at Shamshabad Village and he gave the history of the said Temple and Mutt. PW1 says the Khasra pahani for the year 1954-55 shows an extent of Ac.5-13 guntas in survey No. 668 at

Shamshabad Village and Mandal in favour of the Mutt. The said Khasra pahani Ex.A1 is simply not showing the name of Mutt and it is not showing the possession of Mutt to an extent of Ac.2-13guntas as claimed in the suit.

8.Not a single document is filed by the plaintiff showing the possession over Ac.2-13guntas within the boundaries as shown in the suit schedule. The photographs filed by PW1 is only showing the Tombs of the

Mahants who died and who are buried and that area is very small area when compared to the area claimed by plaintiff in the suit for which the relief of perpetual injunction is sought.

. In this case the entire case of the plaintiff is based on revenue 9 entries which are not clear. Those revenue entries are basically meant for the incidence of fiscal and revenue collection and the same cannot be the basis to confirm or give rights of title and ownership. For primafacie assessment of possession no current or latest revenue record is filed by the plaintiff. In the case of: Suraj Bhan and Ors.Vs. Financial

Commissioner and Ors reported in JT2007 (6) SC152, =2007 103

RD116, = 2007(5) SCALE712, = (2007)6SCC186, = [2007]6SCR155 the

honble SUPREME COURT OF INDIA held as under,

OS 634 of 2016 VII ADDL. SENIOR CIVIL JUDGE, R.R.DIST.

5 “ 9. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only 'fiscal purpose' i.e. payment of land- revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam

Singh and Ors. MANU/SC/0399/1994 : AIR1994SC1653 ). As already noted earlier, Civil Proceedings in regard to genuineness of Will are pending with High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition.” 10.Similarly in the case of Narain Prasad Aggarwal (D) by LRs.

Vs. State of M.P. Equivalent Citation: AIR2007SC2349=, [2007(4)JCR93(SC)],=JT2007(8)SC389,=(2007)6MLJ1740(SC), 2007(8)SCALE250, =(2007)11SCC736, =[2007]7SCR414 it was held as under.

“22. Record of right is not a document of title. Entries made therein in terms of Section 35 of the Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable.

11.In the case of Appellants: Rajinder Singh Vs.

Respondent: State of Jammu and Kashmir and Ors. Reported in 2009(3)ALT27(SC),2008(3)JKJ1(1)[SC],JT2008(8)SC159, 2008(10)SCALE60, (2008)9SCC368 the Honble SUPREME COURT

OF INDIA observed as under “17. It is well settled that Revenue Records confer no title on the party. It has been recently held by this Court in Suraj Bhan and Ors. v. Financial Commissioner and Ors. MANU/SC/7303/2007 : (2007)6SCC186 , that such entries are relevant only for "fiscal purpose" and substantive rights of title and of ownership of contesting claimants can be decided only by a competent civil Court in appropriate proceedings

OS 634 of 2016 VII ADDL. SENIOR CIVIL JUDGE, R.R.DIST.

6

18. It is clear from the record that grievance of respondent No. 2 daughter related to Mutation entry. If the Authorities under the Tenancy Act felt that the action was in consonance with law, it could have retained the entry. The inquiry, however, was limited to the entry in Revenue Records and nothing more. It had no bearing whatsoever as to right of ownership, inheritance or title to the property. In our opinion, therefore, neither the Authorities under the Tenancy Act nor the High Court could have entered into question of ownership, title or inheritance in the present proceedings and they ought to have decided the controversy limited to mutation entry in the Revenue Record.”

12.In the case of G. Satyanarayana Vs. Government of Andhra

Pradesh reported in 2014(4)ALD358, 2014(3)ALT473 The Honble High court of AP taking into consideration long list of case law and the evidentiary value of the revenue entries held as under which is germane to the facts of this case.

“The Judgment of the Division Bench was carried in Civil Appeal No. 4702/2004. The Supreme Court, vide its recent Judgment dated 7-1- 2004 has reversed the said Judgment in Union of India v. Vasavi Co- op. Housing Society Ltd. (supra). The Apex Court laid emphasis on its Judgment in State of H.P. v. Keshav Ram (supra), Corporation of the City of Bangalore (supra), Guru Amarjit Singh v. Rattan Chand (supra), and did not agree with the view of the Division Bench that Ex. A-3-sethwar constituted title. In paras 19 and 20 of the Judgment, their Lordships held as under:

We notice that the above principle laid down by this Court sought to be distinguished by the High Court on the ground that none of the above-mentioned judgments, there is any reference to any statutory provisions under which revenue records referred therein, namely, revenue register, settlement register, jamabandi registers are maintained. The High Court took the view that Ext. A-3 has evidentiary value since the same has been prepared on the basis of Hyderabad record of Rights in Land Regulation, 1358 Fasli. It was also noticed that column 1 to 19 of Pahani Patrika is nothing but record of rights and the entries in column 1 to 19 in Pahani Patrika shall be deemed to be entries made and maintained under Regulations.

We are of the view that even if the entries in the Record of Rights carry evidentiary value, that itself would not confer any title on the plaintiff on the suit land in question, Ext. X-1 is Classer Register of

OS 634 of 2016 VII ADDL. SENIOR CIVIL JUDGE, R.R.DIST.

7 1347 which according to the trial court, speaks of the ownership of the plaintiff's vendor's property. We are of the view that these entries, as such, would not confer any title.Plaintiffs have to show, independent of those entries, that the plaintiffs predecessors had title over the property in question and it is that property which they have purchased. The only document that has been produced before the court was the registered family settlement and partition deed dated 11.12.1939 of their predecessor in interest, wherein, admittedly, the suit land in question has not been mentioned. 11 (Emphasis added)

On a careful reading of the Judgment of the Apex Court in Union of India v. Vasavi Co-op. Housing Society Ltd. (43) Civil Appeal No. 4702/2004, dt. 7-1-2004, I am of the opinion that the legal position as enunciated by the Division Bench with respect to the evidentiary value to be given to the record of rights has not been disturbed by the Supreme Court. While overturning the decision of the Division Bench, the Supreme Court has proceeded on the premise that even if the entries in the record of rights carry evidentiary value, the plaintiffs title could not be declared solely based on Classer Register of 1347. The Supreme Court observed that independent of the entries in the Classer Register, the plaintiff has to show that his predecessors had title over the property in question and that it is that property which the plaintiffs have purchased. The Supreme Court observed that except the registered family settlement and partition deed dated 11-12-1939 of their predecessors in interest, wherein, admittedly, the suit land in question has not been mentioned, in the absence of any independent evidence dehors the entries in the Classer Register, the plaintiffs failed to establish their title. This Judgment therefore cannot be understood as laying down any law different from that laid down by the long line of Judgments discussed above holding that the entries in the revenue records carry high evidentiary value in deciding one's title.

It is noticeable from all the Judgments which held that revenue records do not constitute title that not much reasoning supported this conclusion. However, on a close analysis of the background in which the registers were prepared and the entries were made, two reasons appear to constitute the basis for this dicta. First, the properties may change hands from person to person from time to time. There may be lapse on the part of the persons who maintain the record in updating the transactions. A person to whom the land is lawfully conveyed cannot be denied title only on the basis of absence of entries to this effect in the revenue records. Second, there may be unscrupulous revenue officials at village and taluk levels who, in collusion with private individuals may manipulate entries.”(Emphasis

OS 634 of 2016 VII ADDL. SENIOR CIVIL JUDGE, R.R.DIST.

8

Given).

13The relief of perpetual injunction is granted on merits of the case and the same is governed by Section 37 and 38 of the Specific Relief

Act. In a suit for injunction simplicitor, the court has to see the possession of the plaintiff and whether the same is being interfered or there is any claim made in that regard. There is no evidence before this court that plaintiff is in possession of Ac.2-13 guntas as contended in the affidavit.

When the plaintiff is not in possession of Ac.2-13 guntas, there cannot be any blanket injunction granted as prayed by the plaintiff in the plaint for the extent claim by the plaintiff. The merits of the case does not warrant any relief in favour of the plaintiff. There is no acceptable document showing the possession of the plaintiff over Ac.2-13guntas as claimed in the plaint.

So, this court holds that plaintiff has not at all made out a case for the relief of perpetual injunction as prayed in the plaint. This point is answered accordingly.

14In the result, the suit of the plaintiff is dismissed with costs of

Rs.2,000/- payable by the plaintiff to the District Legal Services Authority,

Ranga Reddy District.

Dictated to the Stenographer Grade-III, Transcribed

by her, corrected and pronounced by me in the open Court on this the 18 th day of August, 2017.

VII ADDITIONAL SENIOR CIVIL JUDGE ,

RANGA REDDY DISTRICT

APPENDIX OF EVIDENCE

OS 634 of 2016 VII ADDL. SENIOR CIVIL JUDGE, R.R.DIST.

9

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT:-

PW-1 : Sri. G. Surender Kumar- NONE –

EXHIBITS MARKED

FOR PLAINTIFF:-

Ex.A1 : Certified copy of Khasra pahani for the year 1954-55

Ex.A2 : Certified copy of pahani for the year 1960-61 with plan

Ex.A3 : Photographs of Samadhis (Tombs) of Matadhipathis

Ex.A4 : Letter of appointment of plaintiff as Mahant of Sriramchanderji Mutt dated 30-10-2014

Ex.A5 : Copy of GPA document No. 125/2016 dated 30-3-2016 with voter ID

FOR DEFENDANT :- -NIL-

VII ADDITIONAL SENIOR CIVIL JUDGE,

RANGA REDDY DISTRICT

OS 634 of 2016 VII ADDL. SENIOR CIVIL JUDGE, R.R.DIST.

IN THE COURT OF VII ADDITIONAL ASSISTANT SESSIONS

JUDGE:: RANGA REDDY DISTRICT AT L.B.NAGAR.

Present : Sri. Huzaib Ahmed Khan, B.Com, LLM

VII Additional Assistant Sessions Judge, Ranga Reddy District.

Dated this the 18th Day of August, 2017

Sessions Case No. 101 of 2011

Name of the Complainant:The State of T.S. through Inspector of Police, P.S. Shamshabad

Name of the Accused: A1. Shanker Jena S/o Gajendra Jena, Aged : 23 years, Occ : Packing work at Mahalaxmi Silk R/o Madanapally N/o Bajithpur Village

A2. Goutham Behara S/o Chaitanya Baihara, Age : 19 years, Occ : Dying R/o. Madanapally N/o. Balachandrapur Village, Mulbasanthpur Post, Katak District, Orissa State Charge Under Section:376 r/w 511 IPC Crime No.:24/2010 Plea of the Accused:Not guilty Finding of the Court:Not guilty Sentence of Order:In the result, Under Section 232 Criminal Procedure Code, the accused A1 and A2 are acquitted for the offence under Section 376 r/w 511 of the Indian Penal Code. Their Bail Bonds are stands cancelled.

Prosecution is conducted by:Sri K. Krishna Reddy,

Additional Public Prosecutor .

Accused is defended by:Sri. K. Janardhan Reddy, Advocate for the Accused. Case Committed by:VIIIMetropolitanMagistrate, Cyberabad, at Rajendranagar

This case is coming on for final hearing before me in the presence of Sri. K. Krishna Reddy, Additional Public Prosecutor for the State and of Sri. K. Janardhan Reddy, Advocate for the Accused and upon hearing and perusal of the material papers on record, this court delivered the following:

J U D G M E N T

S.C.101 of 2011 VII Addl. Assistant Sessions Judge, RR District

1. The Sub-Inspector of Police of Shamshabad filed charge sheet against accused No. 1 and 2 under Section 376 r/w 511 of Indian Penal

Code with the following brief allegations.

2. That on 23-2-2010 at about 8am as usual, Kumari Bujji/PW1 left her hut at Madanapally Village to pick the racks and while she was proceeding towards Peddashapur Village, three persons folllowed her and tried to commit rape on her in an old room at Gree City Venture near Madanapally

Vilage and the same was registered as a case in Crime No. 24/2010 under

Section 376 r/w 511 IPC and investigated. During the course of investigation, the victim girl/PW1 identified the accused A1, A2 and another person as the persons who committed the offence against her and so A1 and A2 were arrested and sent to judicial custody and later charge sheet was laid against A1 and A2 after completition of investigation and since another person who was alleged to have involved in committing the offence is a juvenile, he was sent to Juvenile Court L.B.Nagar.

3. After the accused A1 and A2 appeared before the committal court, copies of documents were served on the accused under Section 207 of

Criminal Procedure Code and after finding that Section 376 r/w 511 of

Indian Penal Code is to be tried by the court of Session as such committed the case to the Hon’ble Metropolitan Sessions court and in turn this case is made over to this court for disposal as per Law.

4. The accused before this court was defended by lawyer and thereafter examined the accused under Section 228 of Criminal Procedure Code for the offence under Section 376 r/w 511 of Indian Penal Code and contents

S.C.101 of 2011 VII Addl. Assistant Sessions Judge, RR District of the offence were read over to the accused in vernacular and he understood the same pleaded not guilty and claimed to be tried as per law.

5. This Court examined PW1 and marked Ex.P1. The details are as follows :

PW1 Kum. Buchi, Petitioner-cum-victim and Ex.P1 is the 161 Criminal

Procedure Code Statement of PW1.

6. Heard.

7. Point for consideration is: Whether this is a fit case to invoke

Section 232 Cr.P.C against accused 1 and 2 in the light of

testimony of PW1?

8.Point: In the light of testimony of PW1, the main victim-cum-defacto complainant in which she stated that she does not know the accused and that the police did not examine her and she did not sign any documents

before the police. She even denied the suggestion by the Assistant Public

Prosecutor that she gave Ex.P1 statement to the police. This witness did not even mark the complaint which she gave to the police on the basis of which the cominal law machinery was moved into motion. Hence, this is a fit case to invoke the provisions of Section 232 Cr.P.C in as much as it is frutile to further proceed with the trial as the main victim-cum-defacto complainant has not at all spoken against the accused No. 1 and 2 herein.

9.Under Section 232 Cr.P.C, this court is empowered to acquit the accused on the basis of the evidence led in by the prosecutor by stopping the further trial in as much as nothing will be achieved by the evidence of the remaining witnesses of the prosecution when the main victim-cumPW1 gave clean chit to the accused. Hence, under Section 232 Cr.P.C,

S.C.101 of 2011 VII Addl. Assistant Sessions Judge, RR District accused A1 and A2 are acquitted for the offence under Section 376 r/w 511

IPC. This point is answered accordingly.

10.IN THE RESULT, under Section 232 Criminal Procedure Code THE

ACCUSED A1 and A2 are acquitted for the offence under Section 376 r/w 511 of the Indian Penal Code. Their bail bonds stands canceled.

Dictated to the Stenographer Grade-III, typed by her, corrected and

pronounced by me in open court on this the 18 th Day of August, 2017

VII ADDITIONAL ASSISTANT SESSIONS JUDGE,

RANGA REDDY DISTRICT

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1: Kum. Buchi, Petitioner-cum-Victim -NIL-

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P1: 161 Criminal Procedure Code Statement of PW1

FOR DEFENCE :

-NIL-

MATERIAL OBJECTS MARKED

-NIL-

VII ADDITIONAL ASSISTANT SESSIONS JUDGE,

RANGA REDDY DISTRICT

S.C.101 of 2011 VII Addl. Assistant Sessions Judge, RR District

CALENDER AND JUDGMENT

IN THE COURT OF THE VII A DDITIONAL ASSISTANT SESSIONS

JUDGE, RANGA REDDY DISTRICT: AT L.B.NAGAR.

Sessions Case No. 101 of 2011

Name of the Complainant: The State of T.S. through Sub- Inspector of Police, P.S. Shamshabad

Name of the Accused: A1. Shanker Jena S/o Gajendra Jena, Aged : 23 years, Occ : Packing work at Mahalaxmi Silk R/o Madanapally N/o Bajithpur Village A2. Goutham Behara S/o Chaitanya Baihara, Age : 19 years, Occ : Dying R/o. Madanapally N/o. Balachandrapur Village, Mulbasanthpur Post, Katak District, Orissa State

Charge Under Section: 376 r/w 511 IPC

Crime No.: 24/2010

PRC No. : 131/2010

Date of offence: 23-2-2010

Date of complaint: 23-2-2010

Commencement of Trial: 3-8-2017

Closure of Trial: 18-8-2017

Date of Judgment: 18-8-2017

Finding of the Court: Not Guilty

Sentence of Order: In the result, under Section 232 Criminal Procedure Code THE ACCUSED A1 and A2 are acquitted for the offence under Section 376 r/w 511 of the Indian Penal Code. Their bail bonds stands canceled

Prosecution is conducted by: Sri K. Krishna Reddy,

Additional Public Prosecutor

S.C.101 of 2011 VII Addl. Assistant Sessions Judge, RR District

Accused is defended by: Sri. K. Janardhan Reddy, Advocate for the Accused

Case Committed by: VIII Metropolitan Magistrate, Cyberabad, at Rajendranagar

VII Additional Assistant Sessions Judge, Ranga Reddy District

Soft copy submitted to:

The Hon'ble Registrar General, High Court of Judicature at Hyderabad for the State of Telangana and for the State of Andhra Pradesh through the

Hon'ble Prl. District and Sessions Judge, Ranga Reddy District.

Lr. Dis. No. /2017 Date: - -07-2017

S.C.101 of 2011 VII Addl. Assistant Sessions Judge, RR District