Smt. K. Madhavi

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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE::

KOVVUR, WEST GODAVARI DISTRICT

Present: Smt K.Madhavi,

I Addl Junior Civil Judge,

FAC: Principal Junior Civil Judge

Kovvur

Wednesday, this the 25th day of November, 2020

O.S.No.175 of 2015

Between:-

Smt. Maddala Veerayamma, W/o Narasimha Murthy, Hindu, female, aged 62 years, Properties, Dondapudi village, Gopalapuram mandal.

… Plaintiff

And

1.Sri Maddala Subhashchandram, S/o late Rattayya, Hindu, male, aged 62 years, cultivation, R/o D.No.1-47, Dondapudi village, Gopalapuram mandal.

2.Smt. Polisetti Padmavathi, W/o Satyanarayana, Hindu, female, aged 40 years, Housewife, Repallivada, Pragadapalli sivaru, Polavaram Mandal.

3.Smt. Dangeti Sridevi, W/o Satyanarayana, Hindu, female, aged 35 years, Housewife, R/o D.No.6-135/5, Chandrampalem, Visakhapatnam.

4.Smt. Veeraganti Lakshmi, W/o Bangarubabu, Hindu, female, aged 37 years, Housewife, R/o D.No.7-59, Annadevarapeta village, Devarapalli mandal.

(Defendants 2 to 4 are added as per order, dated 29.01.2019 in I.A.No.14 of 2018). …. Defendants

This suit coming on 16.10.2020 before me for final hearing in the presence of Sri V.V.Subba Rao, Advocate for the Plaintiff and of Sri N.V.Subba Rao and Smt. C.Sarada Anasuya, Advocates for Defendants, and having stood over till this day for consideration, this court delivered the following:-

JUDGMENT ::

This is the Suit filed based on Agreement of Sale Dated 23/2/1997 of Plaint Schedule Property seeking relief of Specific Performance of the said agreement and to direct the Defendants to register regular sale deed in favor of Plaintiff.

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II. The averments of the plaint in brief are as follows.

Plaintiff avers that her husband Narasimha Murthy has four brothers namely Subhachandram, Subhashbose, Kasiviswanadha

Sanari and Jeji Vara Prasad and four sisters. And their father died in the year 1977 as such her husband Narasimha Murthy took responsibility of the father and settled all of his siblings. And on 15.04.1982 her husband and his brothers partitioned joint family properties and took the possession of the same and enjoying all these years without any interruption among them.

a) In the said partition deed, dated 15.04.1982 along with other properties the schedule property fell to the share of Maddala

Subhashchandram(D2 herein) . And he settled the Plaint Scheduled property in the name of D1 during her marriage under registered gift settlement deed dated 27/10/1994 and he delivered possession of the property to D1 on the same since then she has been under possession and enjoyment of the said property without any interruption.

b) While so, in the year 1997 to purchase another property D1 offered to sell the scheduled property and it was negotiated to purchase for Rs.50,000/- (Rupees: Fifty thousand only) in the presence of elders accordingly, they entered into agreement of sale,

dated 23.02.1997 by receiving an amount of Rs.20,000/- (Rupees:

Twenty thousand only) towards earnest money. And it is also agreed to receive the balance consideration by the end of April 1997 and to obtain regular registered sale deed but being it is possessory sale agreement the plaint schedule property was delivered to the plaintiff on the same day in the presence of D1 husband , her father-in-law and other elders.

c) Subsequently on 25.04.1997 the plaintiff paid the remaining balance of Rs.30,000/- (Rupees: Thirty thousand only) to D1 in the presence her father in law ,D2 and Late Tumu Palayya accordingly she received the same and signed on the said endorsement appearing on the back 23/2/1997 Agreement of sale And further D1 agreed that she will execute the regular registered sale deed immediately after obtaining pattadar pass book in her name and also delivered original gift settlement deed, dated 27/01/1994 to the plaintiff. And averred that since agreement of sale dated 23/2/1997 she has been under possession and enjoyment of the scheduled property till today 3 and cultivating the same with assistance of her husband and son and by growing variant crops in the said property by drawing water from the bore-well situated in the adjacent land of her husband.

d) Subsequently despite several oral demands made by Plaintiff defendant did not came forward to execute regular registered sale deed in accordance of the sale agreement further demanded to pay an amount of Rs 2,50,000/-(Rupees: Two lakhs fifty thousand only) as there is escalation of land rates thus she failed to perform her part of contract despite Plaintiff is always ready and willing to obtain the regular registered sale deed . Even D2 is also requested to advice D1 in this regard but in vain.

e) Constrained by the conduct of the defendant the plaintiff sent a legal demand notice on 28.09.2015 to execute a registered regular sale deed in accordance of sale agreement, dated 23.02.1997 within two days from the date of receipt of the said notice but the defendant issued a reply notice on 21.10.2015 with all false and frivolous allegations which are untenable.

f) As per I.A.No.14 of 2018, dated 29.01.2019 Plaintiff amended the Plaint by inserting the following averments.

That after receiving the said mentioned legal notice in order to prevent the plaintiff in obtaining the regular registered Sale deed in respect of the schedule property D1 and D2 collusively brought into existence registered cancellation deed, dated 19.10.2015 regarding the cancellation of the said settlement deed, dated 27.01.1994 in favor of D1. Further, on the same day i.e., on 19.10.2015 D2 settled an extent of Ac.0.51 cents to D3 and another

Ac.0.51 cents to D4 under registered settlement deeds dated 19.10.2015. And the said settlement deeds in favour of D3 and D4 are brought into existence by D1 and D2 only to defeat the right of the plaintiff in respect of the suit schedule property and the said settlement deeds are null and void and has no binding force on this plaintiff. And the defendants are liable to execute regular registered

Sale deed in favour of the plaintiff regarding the suit schedule property.

g) It is finally averred that if for any reason the court came to finding that the specific performance of contract cannot be granted the plaintiff is entitled to refund of Rs.50,000/- (Rupees: Fifty thousand 4 only) with interest 24% per annum and Rs.50,000/- (Rupees: Fifty thousand only) towards damages for the breach of the contract made by the defendant. Hence, the suit.

III: On appearance of D1 and D2 they filed their respective

written statement as follows :

Written statement by D1: D1 admitted the relationship among her, plaintiff and other defendants. And she contends that after receiving the legal notice from the plaintiff, he send a reply notice to send the agreement of the sale, dated 27.01.1994 alleged to be executed by her but the plaintiff did not choose to send the same since it is a forged and fabricated document brought into existence at the instance of the plaintiff’s husband.

a) It is also contended that out of her love affair with her husband before marriage she become pregnant and at and as there is a protest from both side parents, her marriage was performed with great difficulty. Further, at the time of said marriage her husband demanded for Rs.50,000/-(Rupees: Fifty thousand only) towards dowry and Rs.20,000/-(Rupees: Twenty thousand only) towards marriage expenses and at that time there is no money with D2, her husband Satyanarayana demanded to execute a deed conveying

Ac.1.00 cents of land and to take back the same after paying the money accordingly her father executed a Registered settlement deed,

dated 27/01/1994 vide Document.No.24 of 1994.

b) At that time a suspicion raised in the mind of D2 about the conduct of her husband that whether he recovery the property (or) not (or) what if, if her breaches the promise for marriage and reconveyance. In such circumstances the plaintiff's husband i.e. a

Maddala Narasimha Murthy being the elder of the family along with other elders by name Thumu Pallayya, Areti Mallayya, Pothireddy

Sarvarayudu asked Polisetty Satyanarayana and his father Polisetty

Venkata Rao to sign on Rs.20/-(Rupees: Twenty only) Non Judicial

Stamp paper for the performance of the said promise of reconveyance accordingly, they both signed in the presence of elders and along with them after taking such signatures D2 executed a registered settlement deed in favour of her. And the said stamp paper was also brought by said Narasimha Murthy.

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c) It is further contended that as D2 has no money to meet her marriage expenses he borrowed an amount of Rs.20,000/-(Rupees:

Twenty thousand only) from plaintiff’s husband by signing on some papers as he unable to discharge the same he was compel to convey an extent of Ac.0.50 cents situated adjacent to plaint schedule property accordingly he conveyed the same under Document No.507 of 1998, dated 13.08.1998. Subsequently, D2 cancelled the said settlement deed, dated 27.01.1994 under Registered Cancellation deed, dated 19.10.2015.

d) While the matter stood thus, many disputes took place among the said Narasimha Murthy (Plaintiff's husband) and his siblings out of such vengeance the said Narasimha Murthy has created many forged and fabricated documents accordingly, he fabricated the front page of suit document in fact all of them forgotten the said Rs.20/-(Rupees:

Twenty only) Non Judicial Stamp paper obtained from her husband and father-in-law on 27.01.1994. And the 2nd page of the suit agreement is a rank forged one including the signatures of attestors there under.

And created the same to gain wrongfully and they are never in possession and enjoyment of the schedule property and D2 has been cultivating the same and also availed crop loans in his name thus, without any cause of action to gain wrongfully and by having created the suit agreement plaintiff filed the suit for which she is not entitled to the relief claimed and prayed the court to dismiss the suit.

Written statement by D2:: (Adopted by D3 and D4 by Memo

dated 5/3/2019) D2 have totally denied the entire plaint averments

including the amended para 8 (a) inserted vide IA No.14 of 2018 and contended that they are not proper and necessary parties to suit as such the suit is misjoinder of the parties. And further contended that the plaintiff is no way concern with the suit schedule Property and the said agreement is forged and fabricated one. And being the alleged suit agreement is a possessory sale agreement it is a compulsory registrable document as per Section 17 of Indian Registration Act.

Further, contended that the plaintiff filed the suit at the instance of her husband and she approached the court with unclean hands without any cause of action. With the said contentions, he prayed the court to dismiss the suit.

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IV. After considering the pleadings on 16.03.2016, by learned predecessor-in-office framed the following issues for consideration

1. Whether the defendant executed agreement of sale, dated 23.02.1997?

2. Whether the agreement of sale, dated 23.02.1997 is Valid?

3. Whether the plaintiff paid Rs.30,000/-(Rupees: Thirty thousand only) on 25.04.1997 to the defendant and made endorsement?

4. Whether the plaintiff is ready and willing to perform his part of contract?

5. Whether the plaintiff is entitled for the relief, as prayed for?

6. Whether the plaintiff is entitled for alternative relief as prayed for?

7. To what relief?

Additional Issue vide Docket Order : 5/3/2019:

Additional Issue I: Whether the suit is bad for misjoinder of parties?

V: During trial Plaintiff is not examined as witness and on her behalf her husband Maddala Narasimha Murthy is examined as Pw1 and to corroborate Pw-1 evidence PW’s 2 to 4 are examined towards ocular evidence and got marked Exs.A1 to A9 towards documentary evidence. In contra on the side of defence D1 is examined as Dw-1 and to corroborate her evidence Dw-2 and DW3 are examined towards oral evidence. Ex.B1 is marked towards documentary evidence. On closure of both side evidence and the suit is proceeded to hear the arguments.

VI. Heard learned counsels for both the parties by way of their written and reply arguments and perused the material on record.

Issues I TO VI and Additional Issue I :

1.As the issues are interrelated to each other they are discussed together for arriving just conclusion.

2. The suit scheduled property is :

Description of the Suit West Godavari District, Gopalapuram mandal, Scheduled property Polavaram S.R.O. limits, the dry land situate in the village Dondapudi in R.S.No.171/2, measuring an extent of Ac.1.00 cents bounded on:

South : Land of Maddla Subhash Chandram (old) Land of Maddala Narasimha Murthy (New)

East : Land of Maddala Kasi Viswanadha Sanari (Old) land sold to Maddala Narasimha Murthy and Veerayamma (new)

West : Puntha

North : Puntha 7

3. It is the contention of the learned Plaintiff counsel that the consistent evidence of Pw-1 and corroborative evidence of Pw’s 2 to 4 clearly and categorically proving execution of ExA1 and ExA9 by Dw-1 and the Ex.A2 proves that Dw-1 is the absolute owner of Suit

Scheduled property . Further contended that besides the admissions in evidence of Dw-1 proves that she sold the suit scheduled property to Plaintiff under ExA1 and A9 and also received the sale consideration referred therein to cause wrongful loss to Plaintiff intentionally took false defence pleas and also contended that the entire evidence of

Dw-1 itself proving that the pleas taken by her are baseless and unmeritorious and further proving that Pw-1 and his wife are under possession and enjoyment of the scheduled property since date of execution of ExA1 and A9 but to defeat their rights and knock away the property they took such false and ground less pleas and contended that the evidence of Pw-1 despite showing that he is uncertain about the land acquired by government and compensation received by them from Dw-1 and admitted that he omitted to aver the same in his plaint the said omissions in averment and admission thereof are to be considered as minor discrepancies in the light of other cogent evidence on record and further contended that when Dw- 1 did not sold the land to Plaintiff she could not be under possession of ExA2 document and there is no explanation by Dw-1 to that effect .

And also contended that apparently and admittedly only after receiving ExA3 Legal Notice from Plaintiff , Dw-2 cancelled ExA2 under

ExA6 which is impermissible under law and executed ExA7 and ExA8 in favor of D3 and D4 only to defeat the rights of Plaintiff regarding the scheduled property and contended that the said ExA6 to A8 does not have any binding force on Plaintiff and they are collusive deeds .With the said contentions the learned Plaintiff Counsel prayed the court that being the essentials of an agreement of sale are satisfied in the suit and ExA1 and A9 proved by evidence of relevant witnesses basing on the said documents and other evidence on record to decree the Suit.

4. In contra the contention of the learned defence counsel is that at no point of time there is an intention to Dw-1 to sell the scheduled land settled nominally to her under ExA2 by Dw-2 and merely for the purpose of her marriage as her in laws demanded dowry and at that 8 time there is no money with Dw-2 he executed to ExA2 in favor of

Dw-1 and with an oral understanding that after Dw-2 arranged Rs 50,000/-(Rupees: Fifty thousand only) dowry to in laws of Dw-1 the same shall be re-conveyed to Dw-2 hence at that time Pw-1 being elder of the family obtained the signatures of Dw-1, her husband , her father-in-law and other elders who mediated the said marriage.

Later, the said document is fabricated by Pw-1 into agreement of sale and subsequently, he forged the signatures of Pw-1 and other witnesses signed on said document fabricated ExA9-Endorsement even without having any kind of money transaction and filed this suit to gain wrongfully. Factually it is fabricated document no enough space is left at the details of the land in ExA1. And also contended that when stamp of ExA1 purchased on 22-04-1992 ExA1 is allegedly executed on 27/1/1994 in circumstances stated by Dw’1 and 2 in their statement and evidence. The admitted evidence of Pw-1 itself shows that the persons signed on ExA1 are the elders mediated to the disputed love marriage of Dw-1 and husband of Dw-1 also signed below the signature of Dw-1 on ExA1 which probablising the circumstances pleaded by defence. If Factually Dw-1 intended to sale the scheduled property the signatures of said marriage elders could not have obtained and admitted evidence of Pw-1 probably showing that their signatures are obtained to avoid disputes . And also contended that the admitted evidence of Pw-1 that he cannot say the extent of suit scheduled land acquired by government shows that he is not under possession of the property and Plaintiff is not examined in the suit unreasonably and it is added set back in the suit and also contended that, there is no explanation or evidence by Pw-1 and Plaintiff that why they have not chosen to cancel ExA1 and A9 when Dw-1 failed to register regular sale deed and why they have waited for all these 18 years or more and except ExA3 in the year of 2015 prior to that no notice or effort made by them to show their ready and willingness in getting performance of ExA1 and A9. And there is no evidence as to passing of alleged consideration referred in

ExA1 and A9 and if really Plaintiff paid the said amount to Dw-1 there is no reason in waiting for all this 18 years without possession and without obtaining the regular registered sale deed .Further, contended that as per proposition of law reported in 2019(2) ALT 219 (SC) Urvashi

Aggarwal (Since deceased) through LRs. And another Vs. Kushagr Ansal (Successor 9 in interest of erstwhile Defendant No.1 Mr. Suraj Kumari) and others, K.S. Viswanadham and others Vs Vairavan ( 1997(3)SCC1it is held that though time is not essence of contract the plaintiff must approach the court within reasonable time. Further , by relying on ruling reported in 2007 (5) ALT 510 (D.B.) Mohammed Ibrahim and another Vs.Mohammed Abdul Razzak , and Rayapureddy Prasad Rao Vs Ganesana Venkat Narayana and others ( 2018(2)ALR 763 ) contended that Plaintiff must place unblemished evidence on his side and he must prove his case on his own strength and not on the weakness of defence. And further argued that the evidence of Dw-1 and 2 as to admissions of receipt of Rs.50,000/- (Rupees: Fifty thousand only) in with respect to sale of another Ac.0- 50 cents by Dw-2 to Pw-1 and when their entire evidence is scrutinized they denied ExA1 and A9 contents and alleged suit transaction and relied on ruling reported in AIR 1981 Kar 40:: (1981) ILR (Kar) 78Parameshwara Rao Vs Muthiraj Scindhia; (AIR 1971 SC 1542)Chikkam Koteshwara rao Vs Chikkam Subba Rao; And also argued that Pw-1 who is financially sound person in the family used to trouble all the brothers and earlier he filed two suits on another brother and his wife and it was also dismissed and he also filed the Criminal cases on them which are ended in acquittal the said cases reveals the conduct of Pw- 1 . And non examination of Plaintiff also shows that the case setup by them is in correct and relied on 1999(3) ALT(1) Vidhyadhar Vs Manik Rao.

Further the evidence of Pw-4 is inconsistent and showing that he is planted witness in the case . With the said contentions prayed the court to dismiss the suit with costs.

Lets examine the said rival contentions raised on both sides in the light

of the settled legal principles of law and the evidence on both sides :

5. In 2018 (6) ALT 379 (D,.B) E.Ananthapadmanabha Reddy and another Vs. Chadalavada Srinivasa Rao At para 162held that it is well settled that to be entitled to a decree for specific performance of an agreement of sale of immovable property, the plaintiff should aver and prove that he has performed (or) has always being ready and willing to perform the essential terms of contract, which are to be performed by him other than the terms, the performance of which has been prevented (or) waived by the defendant. This is in view of section 16(c) of Specific Relief Act. 1963. Unless the plaintiff in a suit for specific performance gains entry into the first gate prescribed in sec. 16(c), his journey will get aborted even in the first clap.

In 2019(1) ALT 30 S.C. Kamal Kumar Vs. Premalatha Joshi and others,wherein it is held that “It is a settled principle of law that the grant 10 of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property (or) it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc., and, if so, on what grounds”. Thus, in view of the precedential guidance it is to be understood that it is the initial burden of the plaintiff/P.W.1 to prove that there is a valid contract between her and the Dw-1 and secondly , shall prove that he has been always ready and willing to perform her part of contract andthirdly,she must prove that she approached the court with a clean hands and with equities on her side.

6. Coming to the instant case Plaintiff is not examined as Witness in the suit and her husband Pw-1 is examined as witness on her side .

Besides, Pw-1 , Pw-2 scribe of ExA9 contents/endorsement , Pw-3

Independent witness and Pw-4 one of the witness to ExA1 contents are examined as an additional witnesses in the suit.

7. It is the evidence of Pw-1 that under ExA1 that in the year of 1997 Dw-1 offered to sell the suit scheduled property to Plaintiff in order to purchase another property at her in laws place accordingly being she is the daughter of his brother –Dw-2 Pw-1 and his wife

Plaintiff agreed for the same and accepted her proposal to purchase the same at Rs 50,000/- (Rupees Fifty Thousand) .Accordingly, under

ExA1 Plaintiff and Dw1 entered into agreement of sale and Dw-1 initially received an amount of Rs 20,000/- (Rupees Twenty Thousand) on the date of ExA1 later under Ex-A9 received the remaining balance of Rs 30,000/- (Rupees Thirty Thousand only ) and agreed to register regular sale deed in favor of Plaintiff after she mutated her name into the revenue records and the said ExA1 is witnessed by Polisetty 11

Venkat Rao( Father-in-law of Pw-1), Polisetty Satyanarayana (Husband of Dw-1),Pallaya(died),,Aredi Mallayya(died), Pw-4( Sarvarayudu),Dw- 2/D2( Brother of Pw-1) and Scribed by Late Karinki Aravalu . Whereas ,ExA9 endorsement is scribed by Pw-2 and witnessed by Dw-2/D2,late

Polisetty Venkata Rao and Late Tumu Pallayya.Further deposed despite

Dw-1 received the total sale consideration she evading to register regular sale deed in favor of Plaintiff besides demanding to give an amount of Rs2,50,000/-(Rupees Two Lakhs Fifty Thousand only) due to escalation of land prices .

8. With respect to said alleged execution of ExA1 and Endorsement -ExA9 is concerned the pleading and evidence of Dw-1 is that she admits her signature on ExA1 First page Stamped document dated 23/2/1997 but she denies the contents therein . Whereas to ExA9 she denies both her signature and entire endorsement contents and pleads that ExA9 is out and out forged and fabricated document . Further, deposes that the signatures appearing onExA1 portion is made during her marriage. And deposed that out of her love affair with her husband before marriage she become pregnant then at that time parents of her husband demanded dowry of Rs 50,000/-(Rupee: Fifty thousand only) and Rs20,000/-(Rupees: Twenty thousand only) for marriage expenses at that time as Dw-2 has no money she agreed to settle to suit scheduled property accordingly she settled under ExA2 and it is settled as a temporary arrangement with an oral understanding that on payment of the dowry amount the said ExA2 shall be canceled and reconveyed to Dw-2 .

9. Further, at that time as a safeguard to prevent husband of Dw-1 and his family members from resiling to the said oral arrangement at the advice and instance of Pw-1 the signatures of Dw-1, her husband , her father-in-law, Dw2 and other elders were obtained .Later, Dw-2 sold another extent of Ac0-50 cents to Pw-1 on Date 13/8/1998 and received the sale consideration of Rs.20,000/-(Rupees: Twenty thousand only) and Rs.30,000/-(Rupees: Thirty thousand only) respectively and paid to the in laws of Dw-1 thereafter cancelled ExA2 under ExA6 and conveyed equally to D3 and D4 under ExA7 and A8 .Dw-2/D2 corroborated the said evidence of Dw-1 in respect of circumstances under which they signed on Ex-A1 portion .

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10. Being the said ExA1 is relied by Pw-1 and denied by Dw-1 to prove that Ex.A1 is true, valid and a genuine document the burden lies on Pw-1. Here it is redolent to refer the case law reported in

2002(3)ALT754 Ramnivas Guptha and others Vs Maliram ( Held that :

When execution is denied by other party Mere proof of signature of the executant not sufficient. Person relying upon such document must further establish that executant affixed his signature after knowing the contents thereof ) and in N. Ethirajulu

Naidu Vs. K.R. Chinni Krishnan Chettari ( AIR 1975 Madras 333 )

Where in it is held that “In a suit for specific performance the plaintiff is under obligation to prove the terms of the contract, contents of the agreement and also passing of consideration” thus from the said case law Plaintiff besides proving the signature of Dw-1 she must also prove that after knowing the contents of the said document Dw-1 signed there in and must also prove the terms of contract and passing of consideration.

11. In the light of said precedential guidance when we analyse said discussed evidence of Pw-1 with respect to proof of execution of Pw-1 his evidence discloses that Dw-1 executed ExA1 and A9 and received the sale consideration referred therein. Apparently, he did not examined his wife Plaintiff in the suit stating that she is not doing well and feeling nervous to appear before the court but to prove her ill health no evidence is placed by him in the form of document but adduced evidence of Pw-3 to prove the health condition of Plaintiff, despite Pw-3 deposed that Plaintiff is unable to attend before the court due to ill health his evidence is not inspiring confidence of this court due to absence of requisite medical record. Even the evidence of

Pw-3 is not consistent as to identification and knowledge about the plaint scheduled property which shows that he is a planted witness for the purpose of this suit and to prove the health condition of Plaintiff but to depose the health condition of Plaintiff in the considerable view of this court he is not a competent person hence no reliance is placed on his evidence and disbelieved .When admittedly Plaintiff is not able to appear before the court due to Physical deformity (or) Phobia as to court atmosphere she ought to have examined by appointing an advocate commissioner but no efforts are made on Plaintiff side and admittedly Plaintiff is not suffering with any mental illness which shows that she is in capable condition to depose evidence despite no efforts are being made to examine her and absence of such efforts on side of 13

Plaintiff throws a probable suspicion as to the bonafides of Plaintiffs case .

12. As to the execution of Pw-1 though the evidence of Pw-1 is that it is executed by Dw-1 in the presence of Dw-2, her husband , her father-in-law and others his evidence on the whole shows that the elders who mediated to the disputed marriage of Dw1 with her husband has signed on ExA1 portion and for that his reply to the suggestion of the learned defence counsel by Pw-1 in his evidence is as follows ; “ ExA1 contains the signatures of those persons . The persons who acted as elders for settling marriage between 1 st defendant and Polisetty Satyanarayana were present at the time of execution of ExA1. Three years after the marriage of 1 st defendant, ExA1 was executed . In order to avoid future litigation and as the above persons were the elders for the settlement of dispute between the 1 st defendant and satyanarayana the same witnesses were called at the time of execution of ExA1”.

The said extracted statement in the evidence of Pw1 probably touching the contentions of the learned defence counsel as to the circumstances pleaded by them for signing on ExA1 portion. As rightly contended by the learned defence counsel if factually ExA1 is obtained in respect of the alleged sale transaction there is no need to obtain the signatures of the elders that resolved the disputes relating to the marriage of Dw-1 with Polisetty Satyanarayana. Besides, Pw-1 admitted the circumstances under which Dw-1 marriage was performed and admitted the alleged demand of dowry made by the in laws of Dw-1 and also admitted the payment of dowry made by Dw-2 to the in laws of Dw-1 after selling Ac0-50 cents for Rs.50,000/- (Rupees: Fifty thousand only) to him. And there is no satisfactory explanation from Plaintiff side with respect to the presence of the said five elders during ExA1 transaction.

13. Further, as contended by the learned defence counsel on careful scrutiny of ExA1 it categorically reveals that there is no free hand writing at Scheduled portion and it appears that the sentences were adjusted after the foregone paras . If factually the said document is scribed for the alleged purpose as it appearing there is no possibility such adjustments and there is no chance of having such adjusted writings at the scheduled portion and the said circumstances once again probablising the defence pleas .

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14. Pw-1 to prove execution of ExA1 examined Pw-4 who is one of the witness to it . And his evidence is inconsistent as to the very factum of payment of consideration and execution of ExA1. Though in chief examination he deposed in the manner of hearsay that he came to know that the bargain for sale of scheduled property to Plaintiff by

Dw-1 was fixed at Rs.50,000/-(Rupees: Fifty thousand only) during his evidence he inconsistently deposed that in his presence the said bargain was fixed . Further admittedly he is not witness to the partition of the properties in the family of Pw-1 and Dw-1 hence he is incompetent to depose about the same as such his evidence that the scheduled property fell to share of Dw-2 in the family partition among his brothers is insignificant . Moreover, ExA1 is an Agreement of sale where there is no requirement of any attestation under law despite this Pw-4 signed on said document his evidence shows that as elder he signed not as witness adding suspicion to the existing lacunae's discussed in the said paras. And the said evidence in no manner assisting the case of Pw-1 to prove ExA1 .

15. Apparently and admittedly ExA1 is scribed by one Late Karanki

Aravalu and undisputedly he died. As per Section 72 of the Indian

Evidence Actwhen a document which is not required under law to be attested must be proved as unattested i.e by examining the scribe of the document Plaintiff can prove the execution of document. Here it is pertinent to refer the proposition of law reported in Madho Lal Vs Asian

Assurance Company Limited ( AIR 1954 Bom 305) Wherein it is held that

“Merely to prove the signature (or) the handwriting of the person who signed (or) wrote a document would not prove the correctness of it. The evidence of the contents contained in a document is hearsay evidence unless the writer is examined

before the court. If the only issue is whether the document was signed (or) written

by certain person the mere proof of the signature or the writing would be enough. But where the issue is whether the contents of the document is correct, the person who signed (or) wrote the document must be called as witness because they are the only person who could depose to the correctness of those documents “.And in

M.S Madan Singh Ji Vs State ( AIR 1969 Guj 270 and Sanjay Cotton

Company Vs Om Prakash ( AIR 1973 Bom 40 at Pg 43 )n Held that “For proving the contents of a document, it would be essential that a person who has knowledge of the contents thereof must appear before the court to give evidence in that regard. It is thus clear that even if a document came to be exhibited by the consent of the parties that would only mean dispensing with the proof of execution thereof unless the contents are also admitted by the other side’.

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16. Coming to the case on hand the said scribe ( Late K.Aravalu) of

ExA1 has died . In such a case the recourse open to the Plaintiff to prove that said Late Aravalu scribed ExA1 is to examine the persons who have seen when document executed by Late Karanki Aravalu and who can identify the writings and signatures of Late Karanki

Aravalu as required under section 67 of the Indian Evidence Act . And to consider the evidence of this Pw-1 with respect to execution of ExA1 he is not signatory to ExA1 and there is no averment in the Plaint that he used to look after the affairs of the said transaction and he is present at the time of said transaction in absence of such evidence it is unsafe to solely rely on evidence of PW-1 to believe execution of ExA1 and A9 as well. In the light said discussed case circumstances in its factual situation this court in its considerable view opines that Plaintiff failed to prove execution of ExA1 by Dw-1 with an intention to sale the scheduled property.

17. In order to prove ExA9 endorsement Plaintiff examined Pw-2

Scribe of ExA9 contents and his evidence is that at the request of Pw-1 he came down to Dondapudi from Gajjaram and scribed ExA9 .

While so, when his credibleness is tested by manner of cross examination his replies to the suggestions posed by learned defence counsel discloses that as he has acquaintance with Pw1 since 1987 and he informed on earlier day to scribe ExA9 he came down to

Dondapudi and scribed ExA9 and reveals that he is not certain whether ExA9 is the same document shown to him before entering into evidence and further stated that he is not concern with ExA1 and only concerned with ExA9. Further, deposed that at the time of drafting ExA9 Dw-2. Late P. Venkat Rao, Late Tumu Pallaya are present and he has facial acquaintance with them. And deposed that there are document writers in Dondapudi village and further deposed that he did not drafted any other documents to Pw-1 in 1997 he again admitted that in 1997 he drafted an agreement of sale in favor of

Pw-1 filed in OS No 174 of 2015 .

18. From the said material evidence firstly a suspicion arising that how this Pw-2 without verification of Ex-A1 contents drafted Ex-A9 endorsement since he himself admitted that he is not concerned with

Ex-A1 contents. When Ex-A9 endorsement is allegedly obtained in continuation of ExA1 contents and when ExA1 is the basis for ExA9 16 how he can make such a reply that he is not concern with Ex-A1 contents. Secondly, though he deposes that Dw-2, Late P.Venkat Rao and Late T.Pallayya attested Ex-A9 in his presence the basic contents of Ex-A1 has remained not proved and when the said Ex-A1 has remained not proved Ex-A9 is insignificant to considerate the same into evidence and his evidence is of no worth acceptance .Thus,

Plaintiff failed to prove ExA9 endorsement as well.

19. It is settled principle law that in a suit for specific performance of contract Plaintiff must prove ownership of defendant over the schedule property and it is also reiterated in Dharmabiri Rana Vs. Pramod

Kumar Sharma (Died) through L.Rs. and another (2018 (1) Apex court

judgments 309 (SC)) wherein, it is held that the ownership of suit property of vendor shall be proved by the plaintiff. In case the plaintiff failed to prove the ownership of the vendor in respect of the said property, the specific performance of agreement of sale cannot be granted. In the present case the contention and evidence of Pw-1 is that the suit scheduled property fell to the share of Dw-2 under

Written Partition deed (15/4/1982) subsequently, at the time of marriage of Dw-1 he settled the said property to Dw-1 under ExA2 /

Registered Settlement Deed 27/1/1994 thus Dw-1 is the absolute owner of the scheduled property .

20. With respect to ExA2 Dw-1 did not denied her ownership rights but she denies alleged sale to Plaintiff under ExA1 and ExA9 .

Whereas Dw-2 though admits execution of ExA2 in favor of Dw-1 his evidence is that he executed the same in the compelling circumstances to perform marriage of Dw-1 who is pregnant before the marriage hence under ExA6 he cancelled the same and he settled the said property to D3 and D4 under ExA7 and A8.

21. From the oral evidence of Pw-1, Dw-1 and 2 though there is no dispute as to execution of ExA2 in favor of Dw-1 being ExA9 endorsement showing that this Dw-1 agreed to register regular sale deed as and when she mutated her name in the revenue record because of the said recital this court deems it is fit to examine the probative value of ExA2 in order to ascertain whether ExA2 is acted upon to ascertain that Dw-1 enjoyed the absolute rights in respect of the said property .Whereas , contrary to evidence of Pw-1 the 17 recitals of ExA2 shows that in the oral partition among his brothers the scheduled property fell to his share . Regarding the said issues , apparently there is no production of any revenue record by either side relating to the scheduled property. Even either side choose to examine any revenue official to prove the same. Hence, there is no cogent evidence on record how Dw-2 ascribed the said property and in absence of such evidence it is improbable to believe that Dw-2 is absolute owner for the scheduled property in such a case it is irrational to hold that under ExA2 Settlement deed in favor of Dw-1 she become the absolute owner of the property.

22. On the other side the suggestions of the learned defence counsel and admission of Pw-1 disclosing that the Government acquired an extent of Ac0-10 cents and more out of Ac1-00cents of scheduled property for the purpose of Kovvada Reservoir but he is not certain about the compensation received for the said acquisition and uncertain about the year when it was acquired and admitted that

Dw-1 received the compensation and given to Plaintiff .Further, admitted that he did not averred the said factum of acquisition in his plaint and receipt of payment of the compensation despite learned

Plaintiff counsel contends that the said omission is minor discrepancy this court is unable to concede with the learned counsel since being it is an alleged possessory agreement of sale when admittedly no rights are accrued to Plaintiff the factum of acquisition and receipt of compensation from Land Acquisition authorities will be one of the supporting material fact to Plaintiff case in such a case omission of said factum in the Plaint will certainly a material omission to the

Plaintiff case. Thus, from the said admissions of Pw-1 a suspicion creping out that if factually Plaintiff/wife of this Pw-1 is under possession and enjoyment of the scheduled land in accordance of ExA1 and since 1997 this Pw-1 would certainly be in a position to aver the said factum of acquisition and receipt of compensation in her plaint absence of the same is certainly fatal to her case in addition to said discussed lacunaes.

23. Adding to the said circumstances , Plaintiff did not placed any evidence to prove that Dw-1 has received the said amount from the land acquisition authorities .Even while cross examining Dw-1 learned 18

Plaintiff counsel did not elicited whether she received the compensation and what is the quantum of compensation amount and in which year she received the same . Despite it is extracted from Dw- 1 that Dw-2 delivered possession to her and she has been paying the

Cist/Tax to the revenue and she possesses the cist/ Tax receipts the said statements of Dw-1 is not supported any documentary evidence and there is no iota of evidence to prove that this Dw-1 is under possession of the scheduled property . If Dw-1 has paid the cist/Tax to the scheduled land she certainly mutated her name in the revenue record since in absence of the same it is not possible to pay the cist/Tax in such a case there could have been evidence to that effect but there is no such piece of evidence which showing that except extracting the admissions of Dw-1 as to ownership, delivery of scheduled property under ExA2 there is no evidence to substantiate the same. At least the Plaintiff could have placed Village Register –

Number 10(Adangal) to show the alleged possession of this Dw-1. The said circumstances once again shows that this Dw-1 is never under possession and enjoyment of the scheduled land in accordance of

ExA2 document and it is doubtful to opine that ExA2 is acted upon in such a case probably Dw-2 will always have an option to cancel the same .Corroborating to the said circumstances the static evidence of

Dw-3 proving that Dw-2 is under possession of the scheduled property till execution of ExA7 and A8 in favor of D3 and D4 and the name of Dw-3 is present in the revenue records . And the said discussed evidence of the said witnesses shows that there is no cogent evidence to believe that Plaintiff has been under possession and enjoyment of the scheduled land with absolute rights in accordance of

Ex-A2. And due to inconsistency between the averment of Plaintiff , evidence of Pw-1 and Recitals of ExA2 about acquiring rights over

Plaint scheduled property by Dw-2 this court concludes that there is no cogent evidence on record to establish the ownership rights of Dw- 2 over the Plaint scheduled property in such a case the alleged absolute rights of Dw-1 based on ExA2 admittedly executed by Dw-2 is also doubtful .Thus, Plaintiff failed to prove the absolute ownership of Dw-1 over plaint scheduled property as held in Dharmabiri Rana’s case (stated supra).

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24. It is also the contention of the learned Plaintiff counsel that in case of immovable properties time is not essence of the contract. In contra the contention of the learned defence counsel basing on Urvashi

Agarwal 's case ( stated supra ) is that though time is not essence of contract Plaintiff must approach the court within reasonable time .Before analyzing the evidence of both sides on the said contentions this court redolent to refer the ruling of a Five Judges Bench of Supreme

Court ie Smt. Chand Rani (dead) by LRs. v. Smt. Kamal Rani (dead) by LRs.,

AIR 1993 SC 1742, in Para 24 has held as under :--In the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even, if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the condition are :

1. from the express terms of the contract;

2. from the nature of the property; and

3. from the surrounding circumstances, for example : the object of making the contract .AndIn Mallireddy Buthiramanna Dora and Another VS Dasari

Veerabadra rao (decided on 3-12-2011) Hon’ble H.C of AP held that :

Two aspects need to be dealt with separately.“Readiness” is a situation, where the plaintiff is supposed to have adequate financial resources, for discharge of his part of the obligation, under the contract. However, even if the plaintiff in a particular suit is possessed of adequate means, from the beginning, it cannot be said that the requirement under Section 16 (c) of the Act is fulfilled by him. What becomes material is his “willingness”.This aspect is to be discerned only from the acts and omissions on the part of the plaintiff. Even while possessing adequate means, if the plaintiff has not taken any steps to discharge his part of the obligation, as provided for under the contract, the prohibition contained under Section 16(c) of the Act gets attracted. One of the indicators to know whether (or) not the plaintiff in a suit of this nature is willing to perform his part of contract, is his conduct ( or ) the steps taken by him to ensure that the transaction is completed within the stipulated time. If there was undue delay or indifference on his part, his willingness deserves to be doubted.. And In K.S. Vidyanadam & Ors. v.

Vairavan [1997 (3) SCC 1] held: "Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property. And in Urvashi Agarwal ( Since deceased

) through Lrs and another Vs Kushagr Ansal (Rep by D1 Smt Suraj

Kumari ) and others (2019(2)ALT219(SC)[Held that : Silence maintained by Plaintiff for about 12 years amounts to abandonment of the Agreement ( Relied by learned Defence counsel).

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25. In the background of said rulings when we scrutinize the evidence on record on both sides and the nature of the scheduled property. Admittedly and apparently, the nature of scheduled property is an agricultural land and according to Pw1 they are cultivating the same all these 18-Eighteen years and more contra the evidence of

Dw-1 at one stand is that she is under possession of the land and another stand deposes that Pw-1 is under possession of the land thus,

Dw-1 is inconsistent regarding the possession of the land , as discussed above there is no iota of evidence lying in the hand of plaintiff to prove her possession over the scheduled land despite it is appearing from record and admitted by Dw-1 that ExA2 is under custody of Pw-1 all these years mere having possession of the original document does not substantiates the case of Plaintiff when ExA1 and

A9 remained as not proved . By perceiving the custody of the original deed it is not safe to accept the case of Plaintiff in view of the said detailed discussed setbacks in their case and when their conduct is doubtful regarding execution of ExA1 and A9 .

26. Moreover, when we go through ExA9 alleged endorsement by

Dw-1 the recitals drafted there in reveals that Dw-1 allegedly agreed that she will execute the regular register sale deed after she mutated her name. The said recitals in ExA9 is not inspiring the confidence of this court to believe the said terms recited in ExA9 in view of

Government Circular vide C& IG vide Memo No G1/9732/2013 dated

17/7/2013 which instructed that the registering officers shall not register the documents related to agricultural properties without comparison of the particulars ROR1(B), Adangal with Web Land and also should verify the vendors particulars in the Pattadhar Pass Book and earlier there is no such pre conditions for getting registrations of the Agricultural lands .And by the time of ExA9 there is no even similar type of circulars are pre conditions notified by the government of Andhra Pradesh in such a case reciting such term once again shows that ExA9 endorsement is suspicious and in the considerable view of this court it might have brought into existence after 2013 . As mentioned supra the scheduled land is an agricultural land in such a case when there are heavy floods or droughts to avail any agricultural benefits obtaining register sale deed and later mutation of revenue record is required and it is not convincible to accept that this Plaintiff 21 have suffered losses all these years despite they paid entire sale consideration under ExA1 and A9 and the said circumstances shows that Plaintiff not acted as prudent person since no one volunteers to suffer loss (or) accepts to fore-go the benefits from Government during agricultural seasons and availment of agricultural loans and other benefits from the Government policy. But in the present case the silence of Plaintiff for eighteen years (18) without any efforts to show their readiness and willingness and no action to on her side either to obtain specific performance (or) to rescind the agreement . When we analyse the said silence of 18 years in the background of proposition of law in Urvashi Agarwals’a case ( stated supra) the said conduct of

Plaintiff amounts to abondment of the agreement and the said ExA1 and A9 are not worth credit to consider .And the evidence of Pw-1 shows to purchase another property Dw-1 offered the sale is concerned there is no evidence whether Dw-1 purchased another property at relevant point of time hence the said statement of Pw-1 has remained as not proved .

27. Besides all these setbacks Plaintiff did not stepped into the witness box to prove the case and to available herself for cross examination . Despite she examined her husband Maddala Narasimha

Murthy as witness to the as Pw-1 and he being husband is competent witness on behalf of his wife under section 122 of Indian Evidence Act when he is neither witness nor signatory to ExA1 nor ExA9 his evidence does not gains any value .Moreover, the entire plaint averments does not discloses that this Pw-1 also witnesses the alleged ExA1 and A9 transaction and no averment that this Pw-1 as a husband looked after the said alleged transaction affairs and no authorization to depose on her side in absence of said aspects the evidence of Pw-1 with respect to alleged ExA1 and A9 become irrelevant and out of the purview from consideration. When the

Plaintiff did not enter into witness box for adducing evidence and to prove her case and credibleness then the court can presume that the case setup by Plaintiff is not correct and the said view of this court is fortified by the ruling relied by learned defence counsel reported in

1999(3)ALT 1(SC) Vidhyadhar Vs Manikrao and another and also in Bachu

Bhai Patel v. Harihar Behera & Anr., [1999] 3 SCC, 457 .Further in Sardar Gurbaksh Singh v. Gurdial Singh and another, 53 M.L.J. 392, by the Privy Council that it is the bounden duty of a party, personally knowing the whole 22 circumstances of the case, to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. In

H.G. Krishna Reddy and Company v, M.M. Thimmiah (1983)1 M.L.J.

467: A.I.R. 1983 Mad. 169 , Division Bench has laid down that in a suit for specific performance it is the duty of the plaintiff to prove that he was always ready and willing to perform his part of the contract including the period of the suit. In that case, the plaintiff was absent from the witness box and the court relied on the circumstance to hold against the plaintiff. The Bench observed:

Para 29. In this case, there is absolutely no evidence on the side of the first respondent to prove that he was ready and willing to perform his part of the contract and such readiness "and willingness continued till the date of the decree. It is certainly the duty of the first respondent to have gone into the box and given formal evidence that he was ready and willing to perform his part of the contract and subjected himself to cross-examination. In the absence of the first respondent from the witness box, we are unable to find that the first respondent plaintiff has discharged the duty enjoined on him under Section 16(c) of the Specific Relief Act 1963, entitling him to a decree for specific performance.

28. And the contention of the learned Plaintiff counsel that Dw1 admitted that she is the absolute owner of the scheduled property and she admitted that she offered to sell the suit scheduled property and also admitted that she received Rs 20,000/- (Rupees twenty Thousand only) and Rs30,000/-(Rupees Thirty Thousand only) from Pw-1 and

Pw-1 is under possession of the property . With respect to the said admissions by relying on rulings reported in AIR 1971 SC 1542 (

Chikkam Koteshwara rao Vs Chikkam Subba rao and others ) and AIR 1981

Kar 40 ( Parameshwari Bai Vs Muthoji Rao Scindia ) contended that the proposition of law held in said rulings is that “Before taking the stray sentences elicited in cross examination and before the right of a party can be considered to have been defeated on the basis of alleged admissions by him the implication of the statement made by him must be clear and conclusive . There should not be any doubt (or) Ambiguity about the alleged admission and to examine whether there is ambiguity in the admission , it would be necessary for the court to read the other parts of the evidence and the stand taken by him in the pleadings”.

With reference to the said propositions of law when this court analysed the admissions extracted while cross examining Dw-1. It is true that they are admissions by Dw-1 on and off with respect to alleged sale 23 transaction and possession of scheduled property but when we examine her evidence as a whole it reveals that she denies the contents of ExA1 and Signature on ExA9 and also denies receiving the alleged sale consideration which is in consonance to her defence pleas. Moreover, she is not literate person hence such kind of stray admissions are possible to occur but when her total expression in evidence shows that she denying ExA1 and A9 and when Plaintiff herself is not examined and evidence of Pw-1 not reposing any confidence in the mind of court and it is already opined that Plaintiff failed to prove ExA1 and A9 the said stray admissions on side of defence in no manner assists the case of Plaintiff to prove their case .

29. When Plaintiff has no merits in the case she cannot fall back on evidence of Dw-1 and other witnesses on defence side since

Plaintiff did not discharged her burden in respect of the material aspects such as proving execution of ExA1 and A9, Delivery of

Possession of Property , Passing of consideration etc ., the onus never shifts to defence hence the said admissions in evidence of Dw-1 and other defence witnesses is not matter of consideration to accept the case of Plaintiff. As per ruling (relied by learned defence counsel) reported in 2007(5)ALT510(DB) Mohammadha Ibrahim and another Vs

Mohammadh Abdul Razakk “ Burden Lies on Agreement Holder to Plead and Prove his readiness and Willingness and the Conduct of the Person seeking specific performance must be blemishless throughout and the Plaintiff must succeed on the strength of his own case and not on the weakness of the case of the defendants” in reference to the said citation when the facts and evidence on Plaintiff side is examined from the discussed paras it is revealing that the every nook and corner of Plaintiff case is doubtful and has not acted prudently and miserable failed to prove execution of ExA1 and A9 in such a case they cannot base on the said inconsistent statement of

Dw-1 and the said inconsistent statements of Dw1 in no manner helps their case when Plaintiff himself failed to prove their bondafides and merits in their case. And regarding the issue as to misjoinder of D2 to

D4 is concerned being there is alienation of plaint scheduled property to D3 and D4 by D2 under ExA7 and A8 they were added to the suit and though they are not necessary to the suit issues they are the proforma parties to the suit and by their impleadment the suit by itself does not become bad as per the pleading of defence .

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30. Recently, Hon’ble Apex Court in Atma Ram vs Charanjit Singh on 10

February, 2020 held that, the conduct of Plaintiff in Suit for Specific performance is crucial one to grant the relief. So far in the present suit from the said entire discussed circumstances shows that to prove bonafides in her case at first Plaintiff herself not examined as witness and the witnesses examined by her not clinchingly proving the case facts and execution of ExA1 and A9 and the ownership of Dw-1 over the plaint scheduled property thus from every nook and corner the case of Pw-1 is doubtful .And the said appreciated evidence shows that Plaintiff approached the court with unclean hands and without equities on her part for which she is dis-entitled to relief of specific performance of ExA1 and

A9 contract and alternative relief as well.

Issue No 7:

31. In the result Suit is dismissed with costs.

Dictated directly on computer to Grade III Stenographer , corrected,

signed and pronounced by me in open court, this the 25 th day of November 2020.

Sd/-K. Madhavi

I ADDITIONAL JUNIOR CIVIL JUDGE,

FAC: PRINCIPAL JUNIOR CIVIL JUDGE, KOVVUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PLAINTIFFS

P.W.1: Maddala Narasimha Murthy P.W.2: Gunda Rama Krishna P.W.3: Pothireddy Veeraswamy P.W.4: Pothireddy Sarvarayudu

FOR DEFENDANTS:

D.W.1: Polisetti Padmavathi D.W.2: Maddala Subhash Chandram D.W.3: Ganta Sattibabu 25

Documents marked

For Plaintiffs:

Ex.A1:Agreement of sale, dated 23.02.1997 executed by the 1st defendant in favour of the plaintiff for the plaint schedule property (Marked as subject to objection of its non registration) Ex.A2:Registered gift settlement deed, dated 27.10.1994 executed by the 2nd defendant in favour of the 1st defendant. Ex.A3: Office copy of the registered notice issued to the 1st defendant, dated 28.09.2015 by the plaintiff.

Ex.A4: Postal receipt, dated 28.09.2015.

Ex.A5: Postal track report regarding service of Ex.A3

Ex.A6: Registration extract of the cancellation deed, dated 191.0.2015 cancelling the settlement deed, dated 27.01.1994.

Ex.A7: Registration extract of settlement deed, dated 19.10.2015 executed by the 2nd defendant in favour of the 3rd defendant.

Ex.A8: The Registration extract of the settlement deed, dated 19.10.2015 executed by the 2nd defendant in favour of the 4th defendant.

Ex.A9: Endorsement dated 25.04.1997 on Ex.A1.

For Defendants:-

Ex.B1: The reply notice, dated 21.10.2015 got issued by the defendant to the plaintiff.

Sd/-K.M

IAJCJ FAC:PJCJ KVR

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE, KOVVUR:

WEST GODAVARI DISTRICT:

Present: Smt K.Madhavi,

I Addl Junior Civil Judge,

Kovvur.

Friday, this the 18th day of December, 2020

O.S.No.130 of 2018

Between:-

1. Bikkavolu Hema Lakshman, S/o.Bikkavolu Posibabu, 12 years, Hindu, Male, Minor, student, R/o.D.No.9-8-16/1, Kovvur, Kovvur mandal, West Godavari District.

2. Bikkavolu Sai Santosh, S/o.Bikkavolu Posibabu, 10 years, Hindu, Male, Minor, Student, R/o.D.no.9-8-16/1, Kovvur, Kovvur mandal, West Godavari District.

(Plaintiffs 1 and 2 are being minors represented by their mother Bikkavolu Rama Lakshmi as their next friend/ guardian). … Plaintiffs

Vs.

1. Bikkavolu Posibabu, S/o.late Bikkavolu Lakshmana Rao, 36 years, Hindu, Male, Auto Driver, D.No.9-8-16/1, Kovvur, Kovvur mandal, West Godavari District.

2. Kadajari Kesava Sivaram, S/o.Kadajaari Gopalam, 10 years, Hindu, Male, Minor, Student, D.No.7-10-3, Narasapuram, West Godavari District.

3. Kadajari Uma Maheswari, D/o.Kadajaari Gopalam, 8 years, Hindu, Female, Minor, Student, D.No.7-10-3, Narasapuram, West Godavari District.

4. Kadajari Satyavathi, W/o.Kadajaari Gopalam, 38 years, Hindu, Female, Housewife, D.No.7-10-3, Narasapuram, West Godavari District.

5. Atthili Padmavathi, W/o.Atthili Samba Siva Rao, D/o.late Sankhavarapu Sriramulu, 43 years, Hindu, Female, Housewife, Hukumpeta, Gopalapuram mandal, West Godavari District.

(Defendants 2 and 3 being minors, represented by their mother 4th defendant/ Kadajari Satyavathi as their next friend/ guardian).

…. Defendants

This suit coming on 20.10.2020 before me for final hearing in the presence of Smt C.S.S.D.Indira Priyadarsini, learned Advocate for the Plaintiffs and Sri

K.S.Raghavulu, learned advocate for Defendants, and having stood over till this day for consideration, this court delivered the following:-

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

THIS IS THE SUIT FILED FOR PARTITION OF THE PLAINT SCHEDULED

PROPERTY:

Note : The Defendants herein will be referred as D1,D2,D3,D4 and D5 for the sake of convenience.

II: Averments of the plaint, in brief, are as follows:

Plaintiffs are the minors hence, they are represented by their mother

Bikkavolu Ramalakshmi as their next friend. With respect to relationship among the parties it is averred that D1 is their father D4 is their paternal aunt and D5 is their elder paternal aunt, whereas D2 and D3 are the children of D4 and their cousins.

a) It is averred that the plaint schedule property e total extent of Ac. 2021/9 sq yards in R.S No::695 originally belong to Late Bikkavolu Ramanna who is their great-grandfather and it is his self acquired property purchased under Registered

Sale deed dated 14.12.1947 Vide Document No 2152/1947 . The said late

Ramanna have two sons and four daughters ( Lakshmana rao ,Satyanarayana,

Veeramma ,Chandramma ,Challalu, Ananthalaxmi )and the marriage of female heirs was performed prior to 1980 thus,they are no way related to the schedule property.

Whereas, the another son Bikkavolu Satyanarayana separated from the joint family about 35 years back and he died intestate. Further, averred that they are the grand sons of Late Bikkavolu Laxman rao who is the elder son of Late

Ramanna and he also died intestate on 17.06.2012.

b) Whereas D1, D4 and late Durgarao are the sons of late Bikkavolu

Laxman rao who died intestate. And D5 is wife of said Durgarao who died on 17.06.2012. Subsequently, D5 performed another marriage with Atthili Samba

Sivarao on 18.04.2018 thus, by virtue of her remarriage she does not inherit any right over the plaint schedule property.

c)Further, averred that after demise of Late Durga Rao D5 took away the following properties ie 1) Cash amount of Rs. 5,00,000/- (Rupees: Five lakhs only), 2) The huge sale amount of house property situated in kovvur, belong to

Bikkavolu Durga Rao, 3) Rs. 25,000/- (Rupees: Twenty five thousand only) towards widow benefits from DWCRA, 4). Above Rs. 2,00,000/-(Rupees: Two lakhs only) amount through LIC, 5). 20 Sovereigns of gold and 6). Other movable properties like colour TV, Refrigerator, Iron Beeruva, Cots, Sofa, Cooler etc and also a

Wooden Petty shop and earning Rs. 1500/-(Rupees: Fifteen hundred only) per month there on and also claiming Rs.1000/-(Rupees: One thousand only) in the status of widow though she remarried . As such the plaint schedule property being the coparcenary ancestral property and it is joint property that belong to themselves, D1 and D4 are under joint and constructive possession of the same by excluding D5. But, D1 in collusion with D4 wasting the ancestral property and not giving the share of profits over the plaint schedule property to this plaintiffs and D5 is trying to alienate the plaint Schedule property though he is no way concern for the same.

d)And also averred that inspite of repeated demands and disputes

before the elders for division of the properties the defendants are not coming

forward to give their equal share in respect of the scheduled property. Hence, they filed the present suit for division of the scheduled property into two equal share and to allot their share respectively. Hence, the Suit.

III: D1 to D4 filed memo reporting no written statement on their

behalf.

IV: On appearance of D5 she filed her written statement as follows: The defendants admitted the relationship among them and also the owner ship of the scheduled property as averred by the plaintiffs but denied the other averments by contending that the scheduled property is not coparcenary ancestral property.

a) And contended that late Bikkavolu Ramanna died intestate surviving by wife, two sons and four daughters who succeeded his assets and liabilities. And his two sons Lakshmayaa and Satyanarayana also died intestate even their wives as well. While so, on 18.03.2010 D1, D4 and their brother Late Durgarao and heirs of Satyanarayana branch along with the four daughters of late Ramanna entered into partition list vide Doc.no. 1099/2010 and divided the property that belong to late Ramanna.

b) As per the said partition list dated 18.03.2010 the ‘A’ schedule property fell to the share of deceased husband of D5 and D1, D4 as the heirs of

Late Laxman rao. Whereas ‘B’ schedule property fell to the share of late

Satyanarayana branch. Similarly, the property described as schedule C,D,E and

F fell to the share of the four daughters of late Ramanna. In pursuance of the said partition list the branch of Laxman rao ie. D1,D4 and their brother late Durgarao entered into another partition deed dated 22.03.2010 in which the ‘A’ schedule property fell to the share of Late Durgarao (husband of D5), ‘B’ schedule property fell to the share of D1 and ‘C’ schedule property fell to the share of D4 since then they have been enjoying their properties by paying requisite taxes. And also contended the said late Durgarao and D5 had a son dated 21.07.1992 at

Somayajulu Hospital, Kovvur who died within two months of his birth as such she become the absolute owner of her husband properties.

c) Further, contended that later, D1 on his behalf and on behalf of his minor children ie Plaintiffs sold his share to D5 for family necessities under registered sale deed dated on 17.02.2016 for valuable consideration of Rs. 3,72,000/- (Rupees: Three lakhs seventy-two thousand only) and delivered possession thereof and D5 mutated her name in the Municipal records as well . But suppressing all this material facts the plaintiff approached the court with misrepresentation of facts .And, to avoid proper service of summons to D5 they sent to different address and also contended that despite the next of friend of plaintiff is having sufficient knowledge about the partition of family properties and the sale deed executed by D1 foisted this false suit to gain wrongfully for which

Plaintiffs are not entitled to it . With said contentions to prayed the court to dismiss the suit. Hence, the Written Statement .

V. After considering the pleadings in both the plaint and written statement filed by D5 on 16.02.2019, this court, framed the following issues for trial:

1. Whether the plaintiffs are entitled for partition of plaint schedule property and separate possession thereof?

2. Whether there is a previous partition among the legal heirs of

Ramanna, Satyanarayana and Lakshmana Rao under registered Partition list

dated 18.03.2010 vide Doc.No.1099/2010 and it is true, valid and binding on

plaintiffs?

3. Whether the Registered Partition deed dated 22.03.2010 vide

Doc.No.1128/2010 among D1, D2 and D4 is true, valid and binding on

plaintiffs?

4. Whether the sale deed dated 17.02.2016 vide Doc.no.896/2010

executed by D1 for sale of B schedule is true, valid and binding on plaintiffs?

5. Whether the boundaries and extents of plaint schedule property are in correct?

6. Whether the valuation of plaint is also not correct?

7. Whether the plaintiffs are under joint and constructive possession of plaint schedule property as on the date of filing of suit?

8. To what relief?

VI. During trial on behalf of the plaintiffs, their mother permitted as guardian to them is examined as Pw.1 and to corroborate her evidence she examined P.W.2 towards ocular evidence and Exs.A1 and A2 are marked towards documentary evidence. On behalf of the defendants, 5th defendant is examined as D.W.1 and to corroborate her evidence got examined D.W.2 and D.W.3 towards ocular evidence and Exs.B1 to B13 are marked towards documentary evidence on her behalf.

VII. Heard learned counsel for both the parties and perused the material on record.

VIII: Issues I to VII :As the issues are interrelated to each other to avoid repetition of appreciation of evidence and to arrive just conclusion they are taken up together for better adjudication .

1. It is the contention of the learned Plaintiff counsel as per admitted ExA1 the Plaint scheduled property originally self acquired property of Late Bikkavolu

Ramanna thus, this Plaintiff as Fourth Generation heirs to said Late Ramanna attained the status as Coparceners and have birth right to claim share in the said property which assumed the character of Ancestral property. Further, contended that, one of the son of late Ramanna by name Late Satyanarayana died intestate and before his death he separated from the Joint family and his heirs are having no joint right in the scheduled property. And the Four daughters of Late Ramanna also got married before 1980 hence, they did not have any share in the scheduled property.

2. Whereas the plaintiffs are the Grand Children of Late Laxmanrao who is another son of Late Ramanna and said Late Laxmanrao have three children ie

Late Durga rao , D1 and D4 and the said Late Durga Rao died intestate and issue-less and D5 performed remarriage after death of her husband hence she has no right to claim share in the scheduled property thus the Plaintiffs ,D1 and

D4 are only having share in the scheduled property and at present they are under Joint and constructive possession of the same .But D1 due to his vices in collusion with D4 trying to dispose of the Ancestral property in which these

Plaintiffs are having equal right and he has no right to do so .

3. Further, contended that being the plaintiffs are claiming equal right in the Ancestral co-parcenory property the right shall be determined as per stripes and not per capita . And also contended that D5 though performed another marriage with one Attili Sambha Siva but taken the inconsistent pleas at various stages and her conduct is establishing from the court docket order of the suit proceedings and however, in view of her remarriage she is not entitled to have right over the scheduled property and she has taken away all the movable properties of Late Durga Rao. Further, contended that when during the minority of the co-parcenor there is no proper partition the Minor co- parcenor (or) on his behalf can claim to reopen the partition.In support of her contentions she relied on the following citations :Uma Kantha Rao Vs Lalitha Bai ( 1988(2) KarLJ 155 ),Vineeta Sharma Vs Rakesh Sharma and others.

4. In contra the contention of the learned defence counsel with respect to

D5 is that admittedly, Dw-1/D1 performed remarriage with Samba Siva/office subordinate at Krishna District Courts . But the contentions of Learned Plaintiff counsel that she is disqualified to inherit the ancestral property that belong to her former husband Late Durga rao is unsustainable in view of Amendment to

Section 14 of Hindhu Succession Act , 2005 and the said legal position is also settled in the ruling reported in Sanjay Puroshattam patankar Vs Smt Prajatka

Pramod Patil(DB Mumbai High Court ), Yasodha Vs Chellammal( Madurai Bench of

Madras High Court ), 2008 AIR (SC) 1767 Cherotte Sugathan (died through LR’s )

and others Vs Cherotte Bharathi and others, A.N Amrutha Kumar Vs A.N Vanitha

( High Court of Karnataka).

5. Further, contended that in the pleadings of Plaintiff itself Pw-1 admitting that there is severance of Joint family when Late Satyanarayana left the Joint family property which shows that there is no Jointness of the property as claimed by the Plaintiff. Further the Plaintiff did not impleaded all the heirs of

Late Ramanna when claiming Co-parcenory share in the scheduled property.

Moreover, by the time of filing of this suit there is no property available for partition since under ExB1 the Female Legal heirs of Late Ramanna and the heirs of his Male Legal heirs partitioned the property that covered under ExA1 in accordance of the shares the D1, D4 and Late Durga Rao heirs of Late

Lakshmanarao partitioned their share as in ExB2 later D1 sold his share to D5 under ExB3 subsequently Dw-1 mutated her name in the Municipal records and paying requisite taxes to the Municipality as appearing in Ex-B6 to B11 and there is FDR deposit by her in the name of Plaintiffs as appearing under Ex-B12 .

6. And contended that despite Pw-1 being next friend of Plaintiffs have knowledge about the said facts intentionally suppressed the same and filed the suit in collusion with D1 to D4 to knock away the property that belong to Dw1 under ExB3 and despite Plaintiffs, Pw-1 and D1 are residing together Pw-1 made a false statement before the court about the conduct of D1 . With the said contentions learned defence counsel prayed the court to dismiss the Suit with costs .

Let us examine the said rival contentions forwarded on both sides in the

background of the evidence let in on both sides by analysing the same with

relevant provisions of law and settled legal propositions of law touching the core aspect of the litigation .

7. Plaint Schedule Property is as follows:

Description of the In West Godavari District, Kovvur Mandal,Kovvur Sub-Registry, Suit Scheduled in R.S.No.695, an Ac.1.02 cents, out of which Southern side 202 property½ square yards, out of which, an extent of 60 square yards, not in 12th ward, tiled house with bath room and vacant land, bearing Door No.9-8-16 bounded as:- South :Feet 44-0 compound wall of Kilari MadhusudhanaRao etc., East :Feet 12-3 land of Bikkavolu Lakshmana Rao; West :Feet 12-3 Municipal Road; North :Feet 44-0 land of Bikkavolu Lakshmana Rao

Bearing with trees, fruits, easementary rights corporate(or) incorporated.

8.The following pedigree will show the relationship of the chief persons to whom reference will be made in the course of this opinion.

Late Bikkavolu Rammana(Great grandfather of Plaintiffs)

(Died-Intestate/Date of Death not mentioned )



1 st Generation ________________________________________________________________________

Wife S1-Laxmanrao S2- Satyanarayan D1 D2 D3 D4 (Died Intestate) (Died Intestate) (Died intestate) 2 nd Generation _____________________________ ___________________________

Wife S1 S2(posibabu) Daughter/D4 Wife Son Krishna Gowri Ganga (Satyavathi) (Srinivas) Satya Lakshmi bavani (Late Durga Rao,died intestate) And no children 3 rd Generation

Son Daughter (D2) (D3)

Wife Predeceased (D5) son born on 21.07.1992 ____________________

Wife Son Daughter (1st plaintiff) (2nd plaintiff)

9. In the background of the said contentions, when we analyze the present suit circumstances' being it is a suit for partition, at the outset initially it is just and necessary to ascertain the nature of the scheduled property mentioned in the plaint. The said aspect to determine the nature of the property is fortified in reference to case law:Shashidhar and others Vs Smt Ashwini Uma Mathad and another (2015 (3)ALT 7 (SC)It was held that when a suit is filed by a co-owner or co-sharers or a coparcener for partition, it is necessary for the court to analyse the following details in the first instance which are as follows:

a) The nature and character of properties in a suit i.e. the real owner of the suit properties, the source through which he/she has acquired the property whether it was his/her self- acquired prop- erty or ancestral property, joint property or coparcenary property in his possession and if so, who are/were the coparceners.b) How the devolution of his/her interest in the property took place con- sequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left a testamentary document in favour of any family member to inherit his/her share in properties and if so it’s effect.c)Whether all the properties are involved in the suit and all the coparceners are parties to a suit? d)Whether the properties in the suit are capable of being partitioned and if so, in what manner?

10.As per the legal principle enunciated in the said mentioned ruling when we analyze present suit proceedings. It is the pleading and evidence of Pw-1 that the said mentioned scheduled property is the ancestral Joint

Family property presently under joint and constructive possession among them and D1, D4. And the said property originally self acquired property of

Late Ramanna Great-Grandfather of Plaintiffs and Ex-A1 evidences the same. With respect to the said original ownership of the scheduled property there is no dispute from defence and ExA1 has remained undisputed thus, the evidence of Pw-1 coupled with ExA1 proves that the Scheduled property is the Self Acquired property of Great Grand Father of Plaintiffs i.e., Late Ra- manna.

11.It is also the pleading of Plaintiffs and evidence of Pw-1 on their behalf that being the scheduled property belong to their Great Grand Father Late

Ramanna the Plaintiffs as heirs of Fourth Generation in the capacity of Great

Grand Sons to Late Ramanna they are entitled to the Co-Parcenory right over the same since they acquire such right by birth and 2nd Plaintiff is also a Coparcenor in view of the recent amendment to Section 6 of the Hindhu

Succession Act and contention of learned Plaintiff counsel is that the Co- parcenory right conferred under section 6 of the Act is affirmed as per the recent ruling Vineeta Sharma’s case ( stated supra) .

12.In order to crystallize the relief of Plaintiffs here it is pertinent to repro- duce the interpretation given to the terms Ancestral property, Co- parcenory property and on whom burden of proof lies to prove the nature of the right that claimed by them in respect of the scheduled property.

Ancestral property :: The term Ancestral property is defined In Shyam Narayana

Prasad Vs Krishna Prasad ( (2018) 7 SCC 646 ) Para 12:It is settled that the prop- erty inherited by a male Hindu from his father, fathers father (or) fathers’ fathers’ father is an ancestral property. The essential feature of ancestral property, according to Mitak- shara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth.

Coparcenor and Coparcenory property ::: [S. 6, explain. 1, Hindu Succes-

sion Act]” defines Coparcenor means “One who shares (equally) with others in inher- itance in the estate of a common ancestor .

In Rohit Chauhan Vs Surinder Singh 2013(9) SCC 419 held that Coparcenory prop- erty means the property which consists of the ancestral property and a coparcenor would mean a person who shares equally with others in inheritance in the estate of com- mon ancestor . Coparcenory is a narrow body than the Joint Hindhu Family and before the commencement of the Hindhu Succession (Amendment ) Act, 2005 only male mem- bers of the family used to acquire by birth an interest in the coparcenory property .A Co- parcenor has no definite share in the co-parcenory property but he has an undivided in- terest in it enlarges by deaths and diminishes by births in the family. It is not static . In view of the amendment in 2005 , a daughter of a coparcenor becomes a coparcenor . In this request there is no distinction between son and daughter .So long as on partition , a share of ancestral property remains in the hand of a single person, it has to be treated as Separate property and such a person shall be entitled to dispose of the coparcenory property treating it to be his separate property. Where the property which a coparcenor gets on partition is ancestral property and a son or daughter or both is born to him, the said children will forma coparcenory in respect of the property allocated to the co- parcenor on partition with thier father.In Arshnoor Singh vs. Harpal Kaur (AIR 2019

SC 3098), it was held by the Hon’ble Supreme Court that, “Under Mitakshara law, when-

ever a male ancestor inherits any property from any of his paternal ancestors up to three degrees above him, then his male legal heirs up to three degrees below him, would get an equal right as coparceners in that property.”In Sushanth Vs Sunder Shayam (AIR 2014(NOC) 90(Del) When no Hindhu Family is in existence at the material time, Ac- cordingly, the properties inherited by the deceased owner on demise of his father would become his personal property. As such, the son of the deceased owner would not acquire any coparcenory share in these properties till the owner was alive .Held that the suit property would devolve on the son in his individual capacity on death of the owner and the claim of the Grandson of the deceased for partition of the suit properties on the ground that the same were ancestral would be not maintainable.In Pushpalatha N.V. Vs V. Padma ( AIR 2010 Kant 124 ) : The Hon’ble High Court Observes as under :“ A Coparcenor is one who shares(equally) with others in inheritance in the estate of a com- mon ancestor . Otherwise, called parceners , are such as have equal portion in the inheri- tance of an ancestor, or who come in the equality to the lands of their ancestors . A per- son to whom an estate descends jointly and who holds it as an entire estate . But some- times , two or more persons together constituted the heir , an to this case they took the land as Parceners (or) Co-Parcenors , the later expression being the more common . In theory of law, coparcenors together constituted a single heir , they be but one heir and yet several persons . They were called parceners because, every coparcenor has a com- mon law right to have a partition made. A Male Member of a Joint family and his sons , grandsons and great grandsons constitute a coparcenory . On other words , three genera- tions comes to the holder in unbroke male descendant . Coparcenory is a creature of law . it cannot be created by act of parties . By Adoption , a stranger may be introduced as a member thereof . It is a family unit .

Burden of Proof:: And as per lengal principle held by the Apex Court in the case of

AppaSaheb Peerappa Chandgade Vs. Devendra Peerappa Chandgade and oth-

ers (AIR 2006 SCW 5562) has observed that the initial burden is on the plaintiff to show that the entire property was a joint family property. After initial discharge of the burden, it shifts on the defendants to show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them. In

2003 (10) SCC 310 (D.S.Lakshmaiah and another vs. L.Balasubramanyam and

another), wherein it was held that there is no presumption of a property being joint fam- ily property only on account of existence of a Joint Hindu family, The one who asserts has to prove that the property is a Joint family property and the said principle is reiterated in Yerraveeraiah Vs Kanukuri Shanthamma and others (2018(4)ALT523 and also in recent ruling reported in 2020(6) ALT 141(AP) Rayadurgam Subramanyam and others (died) Vs Rayadurgam Gangaiah(died) and others discussed at Para 21.

13.In the light of said precedential guidance when we analyze the present suit circumstances in view of ruling held in Appasaheb Peerappa Chandgade case , D.S.Lakshmaiah ‘s case, Yerra Veeraiah 's case and Rayadurgam 's case stated ( supra)it is the burden of the Plaintiff to prove that the plaint sched- uled properties are ancestral and Joint family properties and in that they have the

Co-parcenory right as claimed by them .It is true that as per Amendment to Sub-

Sections(1)(a) and (b) of Section 6 of Hindhu Succession Act and as per Legal principle held in Vineeta Sharma ‘s case ( stated supra)The rights of co-parcenors emanates from birth itself ( now to Daughters also). In the present the evidence of Pw-1 reveals that Plaintiffs are claiming the Co-parcenory right with respect to the Scheduled property.

14 .In the present case the pleadings of the Plaint and the evidence of Pw- 1 shows that Late Bikkavolu Ramanna have two sons Laxman Rao and Satya- narayana and four daughters Veeramma,Chandramma Challalu and Lakshmamma and he died intestate but there is no evidence when the said Late Bikkavolu Ra- manna died either before 1956 (or) thereafter and in absence of the said evidence it is not possible when the succession opened in the Family . The evidence of Pw-1 also shows that the two Male descendants of Late Ramanna by name Laxman-rao and Satyanarayana also died but there is no evidence on record when the said male heirs also died. Despite it is averred and deposed that the female heirs of

Late Ramanna was married prior to 1980 itself neither the said female heirs are examined nor there is any other evidence . Moreover, the said female heirs of

Late Ramanna who are alive are not impleaded as parties to the suit.

15.The impleadment of said Legal Heirs is very much necessary in this suit in order to adjudicate whether the said female heirs are coparcenors (or) not (or) they ascribe any right in the scheduled property that belong to their father

Late Ramanna. In order adjudicate the said aspects , firstly, it is necessary to when Late Ramanna died in order to ascertain the applicability of the law to the heirs of Late Ramanna by the time of his death .Secondly, impleading the said fe- male heirs in the Suit is just and necessary to determine their share.

16.The admitted fact in the suit is that , the common ancestor of Plaintiffs ie Late Ramanna died intestate by leaving his self acquired property .And ,by the time of death admittedly he has his wife, two sons and four daughters as shown in the genealogy and appearing from evidence of both Pw-1 and Dw-1 . As per the law “ When a Hindhu Male Coparcenor dies intestate the property left by him either ancestral (or) self acquired property as per Explanation to section 6 of the

Act Notional partition tooks place and as per section 8 of the Act the property of the Deceased person devolves on his heirs equally and property assumes the character of Self acquired property in their hands of every heir by ceasing the character of co-parcenory “ .

17.For clear and better understanding the nature of property that suc- ceeds by an individual under section 6 and 8 of the Act and the mind of court is redolent to refer the provisions of law and the appended legal principles thereof.

Section 6. Devolution of interest in coparcenary property.― (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005),in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,―

(a) by birth become a coparcener in her own right the same manner as the son; (b) have the same rights in the coparcenery property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara co- parcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation in- cluding any partition or testamentary disposition of property which had taken place before the 20th day of December 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary( or) intestate succession, as the case may be, under this Act and not by sur- vivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,―(a) the daughter is allotted the same share as is allotted to a son;(b) the share of the pre-de- ceased son (or) a pre-deceased daughter, as they would have got had they been alive at the time of parti- tion, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre- deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be Explanation.―For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place im- mediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect―(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; (or) (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforce- able as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005) had not been enacted.

Explanation.―For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005). (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004 Ex- planation.―For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court. Section 8 :General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.

18. In Additional Commissioner of Income vs. P.L. KaruppanChettiar- reported in AIR 1979 Madras (1) a Full Bench of the Court after revisiting the law as well as the effect of Section-4, concluded that the property allotted to a Hindu male in a partition between him and his father (or) the property that devolves on him, as co- parcener under Section-6 will be treated as ancestral property vis a vis his son. In so far as the property i.e. inherited by a male Hindu under Section-8, will be held by him as an absolute owner and that his son or sons will not get a right by birth over the same. In effect, the Full Bench, noticed the difference between a devolution of ancestral prop- erty under Section-6 and inheritance under Section-8.In Commissioner of Wealth Tax vs. ChanderSen etc. reported in AIR 1986 SC 1753:the Hon'ble Supreme Court while determining The question here, is, whether the income or asset which a son inher- its from his father when separated by partition the same should be assessed as income of the Hindu undivided family of son or his individual income. And, after referring to the said Full Bench Judgment of Hon’ble Madras Court , CWT ,AP-II Vs Mukundgirji 144 ITR 18 , Judgment of Hon’ble Andhra Pradesh Court and other courts agreed with the same, and observed as follows: Held that, The Property which devolved upon heirs men- tioned in Class I of the scheduled under section 8 constitutes the absolute properties and his sons have no right by birth in such properties . The said legal principle is reiter- ated in Yudhister Vs Ashok Kumar ((1987) 1 SCC 204Sheela Devi VsLal Chand

and another ((2006) 8 SCC 581), Uttam Vs Saubhag Singh and another (2016) 4

SCC 68). In Uttam Vs. Saubhag Singh and others (2016) 4 SCC 68 the Court summed up in the following terms:

(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his inter- est in the property will devolve by survivorship upon the surviving members of the co- parcenary (vide Section 6).

(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, mak- ing it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.

(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative speci- fied in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the co- parcenary property would devolve by testamentary or intestate succession, and not by survivorship.

(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property.

(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such prop- erty would devolve only by intestacy and not survivorship.

(Vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in-common and not as joint tenants.

19.In the light of said precedential guidance when we analyse the present suit facts and circumstances in consonance to the evidence on record .When , by the act of law the self acquired property of deceased/co-parcenor divided among his class I heirs then the property so divided among the said heirs will be their self acquired property and the grandsons and great-grand sons cannot have any right over the same since by the death of the common ancestor section 8 of the Act came into play where the Joint family property divided to the respective shares of the Class I heirs of common ancestor . If at all the Grand sons (or) Great Grand- sons assumes that they have any right over the property that acquired by their fathers then they must prove their birth at relevant point of time. Here the mind of court is redolent to refer the case reported in In[ 1953 AIR 495, 1954 SCR 243 C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar And another ]Wherein it is held that,It is undoubtedly true that according to Mitakshara, the son has a right, by birth both in his father’s and grandfather’s estate but as has been jointed out before a distinction is made in this respect by Maitakshara itself. In the ancestral or grand father’s property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominent interest in the same. It is obvious, however, that the son can assert this equal right with the father only when the grandfather’s prop- erty has devolved upon his father and has become ancestral property in his hands. And , further held that To find out whether a property is( or) is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordi- narily be reckoned as ancestral only if the present holder has got it by virtue of his being a son (or) descendant of the original owner.In the present suit despite it appears that their Grand fathers inherited the property under section 8 of the Act thereafter it is inherited by their sons though Plaintiffs’ are the fourth generation heirs to

Late Ramanna and the property that inherited by their Father and Paternal uncle will be ancestral property and such right confines to the share of their father but in order to ascertain the nature of the share to them there is every need and ne- cessity to add Class I heirs of Late Ramanna . But,admittedly and apparently in the present Plaintiffs did not impleaded the Branch of Late Satyanarayana and the Four daughters of Late Ramanna who are alive for the reasons best known to them .

20 .And, as per the case of Plaintiffs and evidence of Pw-1 the another son by name Late Satyanarayana severed from the Joint family about 35 years back and he died intestate but with respect to the said severance there is no evi- dence from the side of Plaintiffs what are the properties allotted to him during such severance . When the said case of Plaintiff showing that there is severance in the Joint family contra she cannot take another pleading that the scheduled property is the Joint property. The said pleading of the plaintiffs disproving their own case .

21 .On the other side in contra to the said evidence of Pw-1 , the ocular evidence of Dw-1 and recitals of ExB1 Partition list dated 18/3/2010 shows that there is an oral partition among the brothers Late Laxmanrao .Late Satya- narayana and their four sisters mentioned supra in geneology appearing in ExB1 wherein the recitals there in shows that they have recorded the previous partition among the heirs of Late Laxmanrao and Satyanarayana and the Female heirs of

Late Ramanna in which it shows that , Late Durga Rao, D1, D4 being heirs of Late

Laxmanrao branch ascribed half share in ExA1 scheduled property which is shown as “A” Schedule property in ExB1 .Whereas , the wife and children of Late Satya- narayana ascribed half share in ExA1 property .

If at all the pleadings of plaint and evidence of Pw-1 is considered about the separation of said Late Satyanarayana from the Joint family of Late Ra- manna his family could not have shown as sharers in ExB1 Partition list. And the said ExB1 is not disputed by Pw-1 and other witnesses on the side of Pw-1 despite she denied her knowledge about ExB1 the same is inconvincible from the said cir- cumstances since D1 her husband is one of the sharer in ExB1 as heir of his father

Late Laxmanrao.

22 .Similarly, the subsequent ExB2 Partition deed among D1, D4 and Late

Durga Rao by partitioning the half share of ExA1 into two equal halves between

Late Durga Rao and D1 and alloting cash to D4 further strengthens the plea of de- fence and weakness the case of Plaintiff in which it shows the prior partition among the heirs of Late Laxmanrao Branch ie the Grandfather of Plaintiffs .The said ExB1 and B2 though it is in the knowledge of Pw-1 she actively concealed the same which shows her conduct in approaching the court with unfairness. How- ever, even in order to adjudicate whether the said ExB1 and B2 binds (or) not there is a need to implead all the heirs of the Late Ramanna .The effect of Non

Impleadment of Proper and Necessary party to the suit is discussed in Motamarri

Murali Mohana Rao Vs. Motamarri Rama Chander Rao and others reported in

2018(2)ALT 439.Wherein, it is held that in a Suit for partition all necessary parties shall be in- cluded otherwise the suit remains dismissed . Similarly, in Yeluru Rama Krishna Vs. Yeluru Venkateswarlu and others (S.A.No.603/2009 Dt.5-1-2018: 2018 (1) LS 183 ) Order I Rule 9 CPC :A Suit for partition is not maintainable without impleading all the members of the family – Proviso of O.1 Rule 9 makes it clear that if necessary party not impleaded – suit (or) appeal is li- able to be dismissed. In the light said precedential guidance their court opines that the suit is bad for non impleadment of the all the necessary parties ie the Class I heirs of Late Ramanna and the said non impleadment is fatal to the suit .

23 .The further pleading and evidence of Pw-1 shows that under ExA1

Late B.Ramanna purchased the property situated at R.S No 695 in a total extent of

Ac1-2 cents of land an extent of 202 1/9 square yards of site situated to the

South of Meddae Narasanna land in such a case the Plaintiffs are under obligation to place the entire property for partition but apparently the plaintiffs claimed par- tition only for 60 square yards comprising a tiled house portion situated at Door

Number 9/8/16 which is shown as the “B” Scheduled property in Ex-B2 and subse- quently,sold to Dw-1 under ExB3 in such a case the conduct of Pw-1 shows that she admit the prior partition that recited in ExB1 and Partition under ExB2 among the parties referred therein under such circumstances as contended by the learned defence counsel there are no properties of Late Ramanna by the time of filing of this suit. When she admits the prior partition under Ex-B1 and B2 then the plaintiffs have to work out their rights in respect of the share fell to D1 who is their father but they are not directly challenging the same (or) denying said ExB1 to B3.When Plaintiffs claiming their right as co-parcenors to the property that orig- inally self acquired property of Late Ramanna then they shall seek partition to his entire property reflecting in ExA1 and they are not supposed to bring the 1/4th portion of the said property referred in ExA1 .

24 .In a suit for partition the plaintiffs shall not only implead all co-shar- ers of the properties but also must include the entire property of the joint family and the said view of this court fortified by relying on the ruling reported in AIR

1983 SC409 Apporva Shanthilal Shah Vs Commissioner of Income Tax -I

Gujarath/Ahmedhabad( Wherein it is held that : In a Suit for Partition all the Joint family properties shall be included in the Suit in absence of the same it is fatal to the case and the Suit for Partition is not maintainable .And also Shasidhar's case stated supra . In the present suit the plaintiffs besides non impleadment of all co-sharers of the family also failed to include the entire property referred in ExA1 which is a material infirmity to the suit and become cause to uproot the case of the Plaintiff .

25 .From the said appreciation of evidence and the legal principles and provisions of law this court opines that despite plaintiffs are therefore, seen to be the coparceners of the suit properties which are admittedly ancestral properties.

The applicants would certainly be entitled to demand partition of the properties.

Until such time as it is demanded they would continue to have interest in the un- divided suit properties. That would be the community of interest and unity of pos- session. The applicants would have to ascertain their precise share in the suit premises to claim any partition. The shares of the parties to the suit would alter upon the event of death and birth of the co-parcenor and the nature of property will be determined as per its devolution to each generation. The Plaintiffs would have to consider and account for the notional partition as had taken place upon the death of Late B.Ramanna leaving Two Wife, (2) Sons, Four (4) female heirs and ascertained their share in the suit properties. The legal heirs of the said chil- dren of Late Ramanna would also have to consider and account for the notional partitions which may have taken place in their Hindu Undivided Family upon the death of other coparceners leaving behind other female heirs wife, daughters (married or unmarried).

26 .But in the instant suit despite in the pleadings the legal heirs of Late

Ramanna are detailed for the reasons best known to Pw-1 who is next friend of

Plaintiffs they were not impleaded them in the suit .Non impleadment of them in the suit does not permit this court to move on with the partition as sought by the plaintiffs since the genealogy referred above shows that lineal descendants of

Late Ramanna will ascribe either equal share or some share in the property and in absence of the said co-sharers it is herculean task to determine the specified share of this plaintiffs regarding the schedule property which is a portion of the property referred in ExA1 that belong to Late Ramanna who is their Common an- cestor. Hence , this court opines that , the suit is not maintainable in its present form due to non-impeadment of the female heirs of Late B.Ramanna and heirs of

Late Satyanarayana and non inclusion of entire property referred in ExA1 ( Self acquired property of Late Ramanna.

27.On other side the scrutiny of Ex-B3 shows that while they are selling the scheduled property to Dw-1 along with D1 , Pw-1 also signed therein in the ca- pacity of witness the said glaring evidence shows the intention of Pw-1 and D1 ,D4 in filing this suit by showing the minor children as Plaintiffs .Further,the recitals of ExB3 shows that they sold the scheduled property to Dw-1 to clear their

Mortgage debt and other family necessities in such circumstances even for a while when D1 is assumed as kartha of their family they cannot have any right to question the said alienation based on Family necessities .

28 .It is also the pleading and evidence of Pw-1 corroborated by Pw-2 that

D5 who is the wife of his deceased brother-in-law Late Durga Rao being per- formed second marriage with Attili Sambasiva on 18/4/2018 not entitled to have share in the scheduled property . And also deposed that the said Dw-1/D5 has taken away all the said mentioned movable properties that belong to her late

Durga rao hence she is not entitled to take share in the said scheduled property .The learned plaintiff counsel to substantiate the said oral evidence of Pw-1 by re- lying on ruling reported in Uma Kantha Rao ‘s case ( stated supra) contended that

Dw-1 as remarried woman not entitled to have share in her former husband property . But the said contention of the learned Plaintiff counsel and the said evi- dence of Pw-1 regarding the exclusion of Dw-1 from inheriting her former de- ceased husband property is not maintainable in view of amendment to the law as in Section 14 of the Hindu Succession Act 2005 which is reiterated and clearly ex- plained in the Judgments reported In AIR 2009 Bom.57,Baliram Dhake vs Rahubai held that widow inherited her husband's property and subsequently remarried, it would not cause her to be divested ofthe property, since she became full owner by virtue of the op eration of section 14 of the Act. In Cherotte Sugathan Vs. Cherotte Bharathi -AIR2008SC1467 ( relied by learned Defence counsel also ) held that : “A widow is the full owner of the property (Section 14 of Hindu Succession Act, 1956) and therefore such stipulations do not align with the intent of the legislature to bring gender equality. It was held that a widow cannot be deprived of property by mere remarriage, subject to any just exceptions”. Thus, the said con- tentions of learned Plaintiff counsel regarding divesting the property right of Dw- 1/D5 with respect to her former deceased husband Late Durga Rao is found to be unmeritorious and frivolous.

29 .Moreover, when Ex-B1 and B2 have remained un-disputed and unchal- lenged by Plaintiffs and even suppressed in their pleadings despite they are hav- ing knowledge about the same their conduct appears that they have admitted the prior oral partition among the previous generations further they have also undisputed ExB3 Sale deed executed by D1 by alienating his share ascribed un- der ExB2 to Dw-1 when they have not disputed the said documents Plaintiffs cannot claim right in the scheduled property and in order to substantiate their claim they ought to have challenged ExB1 to B3 deeds but their silence showing their acquiescence over the said transactions and merely to get back the prop- erty that alienated to Dw-1 by D1 under ExB3 they have filed this suit improperly without impleading proper and necessary parties and the entire property that covered under Ex-A1.

30.Further,ExB6 House Tax standing in the name of D1, ExB7 House Tax standing in the name of Bikkavolu Srinivas ( S/o Late Satyanarayana),ExB9 House tax standing in the name of Late Durga Rao probably shows that ExB1 is ac- cepted by all the female heirs of Late Ramanna and the heirs of Late Laxman Rao ( i.e Late Durga Rao, D1 and D4) and Late Satyanarayana and ExB2 shows that

Partition deed entered among the heirs of Late Laxman Rao is also acted upon.

And, ExB9 to B11 shows that at present the scheduled property and another por- tion fell to share of her deceased husband is owned and possessed by Dw-1 .Whereas Ex-B12 shows Fixed Deposits drawn in name of Plaintiffs but the said

Deposits are not much significant to the core aspect of this litigation and ExB13 as well .If at all Plaintiffs claim their right over the scheduled property that alien- ated to Dw-1/D5 they could have impleaded all the co-sharers and entire prop- erty as well and ought to have sought for reopening the partition as recited in

ExB1 and B2 and have denied Ex-B3 but not doing such efforts by merely filing the present suit that alienated to Dw-1/D5 under ExB3 is totally a suit with mis- representation and material suppression of facts by the Plaintiffs side.

31.Learned Plaintiff counsel filed a memo vide S.R No 1732/18-03-2020 to consider the school study certificates of Plaintiffs for their proof of age and the

Computer copy of Docket dated 7/9/2018 along with the Photo copies of the depo- sition of witnesses examined in the suit and Transcribed copy of ExA1 . But, being the said study certificates are not marked during evidence they are not consid- ered to take as evidence in deciding the suit . And she filed the Docket proceed- ings on Date 7/9/2018 to prove the conduct of Dw-1 in making attempt to conceal her remarriage where the Docket proceedings shows that Dw-1/D5 on her ap- pearence she stated that her surname is Bikkavolu not Attili . Taking the said statement of Dw-1 learned plaintiff counsel tried to submit that she intentionally hiding the surname though she remarried by that time . But the said submission of learned Plaintiffs counsel has no consequence on the suit facts being this is a

Suit for partition and the status of Widow Remarriage underwent sea change in view of amendment to Section 14 of the Act.

32.Further , either side examined corroborative evidence by examining

Pw-2 on Plaintiffs side and Dw’s 2 and 3 on Dw-1 side but when the facts and cir- cumstances shows that the suit is bad for non joinder of all necessary parties and properties the said corroborative evidence on either side does not play any signifi- cant role hence this court opines that the said corroborative evidence on either is immaterial to the suit circumstances .

33. From the said discussion it is apparent that as seen from ExB3 and other Ex-B8 to B11 shows that the plaintiffs are not under Joint and Constructive possession of the scheduled property and it has been under possession and enjoy- ment of Dw-1 /D5 in pursuance of ExB3 in such a case the court fee paid by the

Plaintiffs as per section 34(2) of APCF and SV Act is incorrect and instead of pay- ing the said court fee under section 34(1) of the Act they have paid incorrectly by suppressing the known material facts and misrepresented the court . And as rightly contended by the defence even the boundaries of scheduled property is also incorrect due to non inclusion of entire property and as per ExB1 and B2 Doc- uments.

Issue IX:

34 . In view of the said discussion this court opines that the Plaintiffs are not entitled to seek partition of the scheduled property and separate possession thereof as prayed by them .

35. In the result Suit is Dismissed With Costs.

Typed to my dictation, corrected and pronounced by me in Open Court, on this the 18th day of December, 2020.

Sd/-K. Madhavi

I ADDL. JUNIOR CIVIL JUDGE,

KOVVUR.

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintiffs: Pw.1: Bikkavolu Rama Lakshmi (Mother/Guardian of Plaintiffs)

P.W.2 :K. Ramu

For Defendant:- Dw.1:Bikkavolu @ Attili Padmavathi (5th defendant) Dw.2:Nadapureddi Satyaveni Dw.3:Koppineedi Trimurthulu

Documents marked

For Plaintiffs:

Ex.A1:Certified copy of Registered Sale deed dated 14.12.1947 executed in favour of Bikkavolu Ramanna; Ex.A2:Mee Seva copy of Death Certificate of Bikkavolu Durga Rao;

For Defendants:-

Ex.B1: Certified copy of Partition List dated 18.03.2010; Ex.B2: Original registered Partition List dated 22.03.2010; Ex.B3: Original registered Sale deed dated 17.02.2016 executed by Bikkavolu Lakshmana Rao and sons in favour of Bikkavolu Padmavathi (D5)/D.W.1; Ex.B4: Original death certificate of Bikkavolu Durga Rao; Ex.B5: Mee-Seva copy of Birth certificate of Male child (Predeceased son) born to Bikkavolu Padmavathi/D.W.1 on 21.07.1992; Ex.B6: Original House tax demand notice dated 07.07.2011 in respect of D.No.9-8-16/B standing in the name of Bikkavolu Posiyya; Ex.B7: Original House tax demand notice dated 07.07.2011 in respect of D.No.9-8-16 standing in the name of Bikkavolu Srinivasa Rao; Ex.B8: Original house tax demand notice dated 07.07.2011 in respect of D.No.9-8-16/A standing in the name of Bikkavolu

Durga Rao; Ex.B9: Receipt issued by Kovvur Municipality in the name of Bikkavolu Padmavathi/D.W.1; Ex.B10: Original house tax demand notice dated dated 23.10.2015 in respect of D.No.9-8-16 standing in the name of Bikkavolu Padmavathi/D.W.1; Ex.B11: Receipt issued by Kovvur Municipality in the name of Bikkavolu Padmavathi/D.W.1 dated 03.08.2018; Ex.B12: Photo copy of FDRs standing in the name of Bikkavolu Hema Lakshman, Bikkavolu Sai Santhosh; Ex.B13: Original Sale Agreement dated 27.11.2015 executed between Bikkavolu Posi Babu and Sankarapu Srinivas;

Sd/-K. Madhavi

IAJCJ, KVR.

IN THE COURT OF CIVIL JUDGE [SENIOR DIVISION]

TADEPALLIGUDEM

Present:- K. Madhavi,

Civil Judge [Senior Division], Tadepalligudem

. Monday, this the 2nd day of September, 2024

O.S.No.257/2011

Between:

1. Smt. Pasupuleti Satyavathi, W/o. Late Chinna Rao, female, aged 77 years, Properties, r/o. 1st Ward, Tadepalligudem, West Godavari District.

2. Sri Pasupuleti Venkateswara Rao, S/o. Late Chinna Rao, male, aged 45 years, r/o. 1st Ward, Tadepalligudem, West Godavari District.

3. Smt. Koppisetti Lakshmi, W/o. Satyanarayana, female, aged 46 years, Properties, r/o. Dwaraka Tirumala village and Mandal, West Godavari District.

4. Smt. Pasupuleti Parvathi, W/o. Late Narayana Rao, female, aged 70 years, Properties, r/o. Srinivasa Colony, Saluru, Vijayanagaram District.

5. Sri Pasupuleti Janaki Ramanjaneyulu, S/o. Late Narayana Rao, male, aged 50 years, Properties, r/o. Srinivasa Colony, Saluru, Vijayanagaram District.

6. Sri Pasupuleti Vara Prasad, S/o. Late Narayana Rao, male, aged 47 years, Properties, r/o. Srinivasa Colony, Saluru, Vijayanagaram District.

7. Smt. Yeggina Venkata Vishnu, W/o. Kanaka Durga Rao, female, Properties, r/o. 1st Ward, Tadepalligudem, West Godavari District.

8. Smt. Kamisetti Kanaka Durga, W/o. Srinivas, female, aged 55 years, Properties, r/o. Prathipadu, Pentapadu Mandal, West Godavari District.

9. Sri Pasupuleti Someswara Rao, S/o. Anjaneyulu, male, aged 72 years, r/o. 15th Ward, Tadepalligudem, West Godavari District.

10. Sri Pasupuleti Kanaka Rao, S/o. Anjaneyulu, male, aged 69 years, r/o. D.No.4- 170-29, Ganesh Nagar, 1st Ward, Tadepalligudem, West Godavari District.

11. Sri Pasupuleti Rama Rao [died].

12. Smt. Pappoppula Subbayamma, W/o. Late Krishnamurthy, female, aged 73 years, r/o. 15th Ward, Tadepalligudem, West Godavari District.

13. Smt. Kalla Ratnam, W/o. Krishna, female, aged 65 years, r/o. 8th Ward, Tadepalligudem, West Godavari District.

14. Smt. Maddukuri Kanchi Kamakshi, W/o. Late Koteswara Rao, female, aged 57 years, r/o. 15th Ward, Tadepalligudem, West Godavari District.

15. Smt. Puli Ramatulasi, W/o. Srinivasulu, female, aged 62 years, Properties, r/o. Padala, Tadepalligudem, West Godavari District.

16. Smt. Pasupuleti Vijayalakshmi, W/o. Late Rama Rao, female, aged 60 years, housewife, Jayasri Constructions Kolluri Brothers, r/o. D.No.4-164- 15/2, 1st Ward, Ganesh Nagar, Tadepalligudem, West Godavari District.

17. Sri Pasupuleti Leela Krishnamohan, S/o. late Rama Rao, male, aged 41 years,Mechanic, Jayasri Constructions Kolluri Brothers, r/o. Flat No.4-164-15/2, 1st Ward, Ganesh Nagar, Tadepalligudem, West Godavari District.

1

18. Pasupuleti Koti Mallikarjuna Rao, S/o. late Rama Rao, male, aged 38 years, Private Employee, r/o. Flat No.52, 1stWard, Tirumala Residency, Ganesh Nagar,Tadepalligudem, West Godavari District.

[Plaintiffs 1 to 9 and 11 to 15 represented by their General Power of Attorney Holders Pasupuleti Kanaka Rao (10th Plaintiff) and Pasupuleti Umamaheswara Rao].

[Plaintiffs 16 to 18 are added as legal representatives of deceased 11th Plaintiff as per the orders in I.A.No.139/2022 dated 14-07-2022].

… PLAINTIFFS

And

1. Sri. Pulavarthi Gandhi [died].

2. Smt. Pulavarthi Satyavathi, W/o. Late Gandhi, female, aged 64 years, Son's Protection, r/o. D.No.1-49-32/2, 34th Ward, Tadepalligudem, West Godavari District.

3. Sri Pulavarthi Venkata Mutyala Rao, S/o. Late Gandhi, male, aged 44 years, Business, r/o. D.No.1-49-32/2, 34th Ward, Tadepalligudem, West Godavari District.

4. Smt. Ragireddy Jaya Kumari, W/o. Trinath @ Babjee, female, aged 42 years, Husband's Protection, r/o. D.No.1-74-5/1, H/o. Namala Subbayya, Near Hemagiri School, APHP Colony, Tadepalligudem, West Godavari District.

5. Smt. Borusu Subbalakshmi, W/o. Venkateswara Rao, female, aged 39 years, r/o. Near Carpenter Mastry Pullayya's House, Kadakatla, Tadepalligudem, West Godavari District.

6. Smt. Kotha Naga Saraswathi, W/o. Durga Sivajee Ganesh, female, aged 37 years, r/o. LIG-I, H-79, Manikanta Milk Center, APHP Colony, Tadepalligudem, West Godavari District.

[Defendants 2 to 6 are added as legal representatives of 1st Defendant as per the orders in I.A.No.484/2014 dated 25-11-2014]. … DEFENDANTS

This suit is coming on 29-08-2024 for final hearing before me in the presence of Sri G.S.P. Mukherjee, Learned Advocate for the Plaintiffs and of Sri K. Mani Kumar, Learned Advocate for the Defendants 2 to 6, 1st Defendant died and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This is the SUIT FILED FOR RELIEFS OF DECLARATION, POSSESSION,

FUTURE MESNE PROFITS AND COSTS THEREOF.

I. AVERMENTS OF THE PLAINT IN BRIEF AS FOLLOWS :

[a] Plaintiffs aver that they are legal heirs of Late Pasupuleti Anjaneyulu, son of Late Pasupuleti Swamy and the Plaint Schedule Property fell to the share of 2

Late Pasupuleti Anjaneyulu in partition with his brother Late Pasupuleti Lakshmana

Swamy vide Partition Deed dated 09-02-1935 Vide Document No.510/1935 of SRO

Tadepalligudem and as Late Pasupuleti Anjaneyulu died intestate in 1958 [or] 1959 and his wife Smt. Pasupuleti Varahalamma also died intestate in June 1996 the

Plaint Schedule Property is inherited by his five sons, Chinna Rao [died], Narayana

Rao [died], 9th Plaintiff/Someswara Rao, 10th Plaintiff/Kanaka Rao, 11th

Plaintiff/Rama Rao and four daughters i.e. 12th to 15th Plaintiffs. Whereas, the said deceased Chinna Rao is born to Smt Rattamma who is first wife of late Anjaneyulu and avers that except the Plaintiffs there are no other legal heirs to late Anjaneyulu.

[b]They aver that the Defendants who does not have any legal right, title [or] interest in the schedule property, offered to sell the same to third parties even though neither the Plaintiffs nor their predecessors in title sold the property to the

Defendants [or] to their predecessors having known about their attempt to sell the schedule property, the Plaintiffs send legal notice on 13-10-2009 by questioning the said transaction and hand over possession of Plaint Schedule Property to which they send reply on 05-11-2009 with all false and untenable allegations but after verification of the record, they noticed that the Plaint Schedule Property covered under Registered document No.2837/1939 and on the same day, Smt Pulavarthi

Suramma also purchased property from the same vendor and she is an Eastern bounderiar of Plaint Schedule Property and the Relinquishment deed vide 12-08- 2009 vide Doc.No.3842/2009 in favour of deceased 1st Defendant is false and by rectifying the earlier legal notice dated 13-10-2009 another legal notice dated 06- 05-2010 is sent to deceased 1st Defendant to which he send another Reply notice on 08-06-2010 with false and untenable allegations in which the deceased 1st

Defendant and his legal heirs does not have any right, title [or] interest over the

Plaint Schedule Property.

With these averments, the Plaintiffs pray to Declare their title over

Plaint Schedule Property with consequential possession, mesne profits. Hence, the plaint.

II: On appearance, the deceased 1 st Defendant filed his Written

Statement which is adopted by 2 nd to 6 th Defendants as per Memo dated 21-08-2015/SR 6239/2015:

3 [a] It is the contention of the Defendants that the Plaintiffs are no way concerned to the Plaint Schedule Property and it is originally purchased by Smt.

Pulaparthi Suramma Wife of Late Sri. Sarvarayudu from Gandham Veeraswamy under Registered Sale Deed 28-07-1939 vide Document No.2838/1938 for an extent of 385 sq.yds and on the even date itself, Pasupuleti Swamy also purchased an extent of 385 sq.yds from the said Gandham Veeraswamy under Registered

Sale Deed dated 28-07-1939 vide Document No.2837/1939 and that as per the said sale deed executed in favour of Pasupuleti Swamy clearly envisaging that late

Smt. Pulaparthi Suramma is his Eastern Bounderiar for an extent of 385 sq.yds. of site.

[b]Also contends that after death of late Smt.Pasupuleti Suramma, the father of Defendant, by name, Subba Rao has been in possession and enjoyment of the property covered under Document No.2838/1939 and during his lifetime, he has been in possession and enjoyment of the same.

[c]While so, the Plaintiffs by relying on Partition Deed 09-12-1935 vide

Document No.510/1935 claiming the existence of Plaint Schedule Property is incorrect and the property covered under partition deed is located on the North of

Koderu-Nallajarala Road whereas, the property purchased by Late

Smt.Pulavarthi.Suramma and Late Sri. Pasupuleti Swamy is located at North of

Tank situated at Gollagudem Centre at Ramachandrapuram and that the property under Partition Deed is no way connected to Plaint Schedule Property herein and the sale deeds obtained in favour of Late Smt. Pulavarthi.Suramma and Late

Sri.Pasupuleti Swamy but, the Plaint Schedule Property is referring the Defendants property that covered under Document No.2838/1939 and in fact East boundariar in the Plaint Schedule Property is mentioned as Kudumula Satyanarayana is incorrect and at present Kodavali people are present.

[d]Further contends that on causing enquiries the Defendant came to know that the Plaintiffs sold their property to Ambati people on the West and North of Defendants’ property but by suppressing the same, by taking aid of recitals of

Relinquishment deed dated 12-08-2009 vide Doc.No.3842/2009 which is referred as an ancestral property without referring to Document No.2838/1939, the Plaintiffs claiming false right over the Plaint Schedule Property even though they have 4 knowledge that the deceased 1st Defendant and thereafter the present Defendants have been in possession and enjoyment the said property for the last 30 years and more and got perfected their title by such possession.

[e]Furthermore contends that though under Document No.2838/1939, the total extent is 385 sq.yds. at present, the Defendants are in possession of 228 sq.yds of site and it is suspected that the remaining site is under illegal occupation by neighbours and they would take appropriate legal action for recovery of remaining extent but having knowledge of all these facts, suppressing the facts, the

Plaintiffs making false claim of title over Plaint Schedule Property to which the

Defendants are entitled for damages and even the suit is barred by limitation and bad for non-joinder of necessary parties.

With these contentions, the Defendants prayed to dismiss the suit by imposing costs. Hence, the Written Statement.

IV: On scrutiny of the pleadings in Plaint and Written Statement, my

Learned Predecessor in office has framed the following ISSUES FOR TRIAL:

1.Whether the Plaintiffs are entitled for Declaration that they are owners of the Plaint Schedule Property and for vacant possession of the said property from 2 nd to 6 th Defendants as prayed for ? 2. To what relief the Plaintiffs are entitled for?

V: During the course of Trial towards ocular evidence, on behalf of the plaintiffs, the 10th Plaintiff himself examined as PW1 and got marked Exs.A1 to A10 towards documentary evidence.

[b]Whereas, towards ocular evidence, on behalf of the Defendants, the 3rd

Defendant himself examined as DW1, got examined DW’s 2 and 3 and got marked

Exs.B1 to B14.

VI::PLAINT SCHEDULE PROPERTY:

West Godavari District, Tadepalligudem Sub Registry, Tadepalligudem Municipality, 33rd Ward, an extent of 198 sq.yds of vacant site bounded by:

East - House of Kudumula Satyanarayana. South - Road. West - Ambati markandeyulu, Gadiraju Ramaraju. North - Ambati Prasad.

VII: Issues I and II:

5

As the said issues are inter-related and inter-linked together and based on the

same material evidence to avoid repetition and for brevity they all are taken

up together for adjudication.

1. It is the contention of the learned Plaintiff counsel that the consistent evidence of Pw-1 coupled with Ex-A1 to A10 and admissions of Dw-1 probablising the case of Plaintiffs as to their title over Plaint schedule property. When admittedly under Ex-A4 Smt Pulavarthi Suramma purchased 385 sq. Yards from

Gandham Veeraswamy she sold the same under Ex-A9 to Jutta people and others as in the said document , thought the said fact of sale is denied by Dw-1 and his witnesses no contra is being placed by him to disprove the recitals of said Ex-A9 hence, as admittedly, under Ex-A3,Late Pasupuleti Swamy purchased 385 sq yards, the Plaint schedule property belong to him and the said property is under occupation of defendants despite either said Late Pasupuleti Swamy [or] his legal heirs sold to any one including Defendants and his ancestors .Also argued that admittedly, no document is being filed by defence to prove that Late Smt. Pulavarthi

Suramma and Smt. Pulavarthi Subbamma @ Subbayamma are one and same and even no document filed to prove Sarvaraidu is also called as Subbanna @

Subbarao thus, defence failed to probablise their defence pleas and it is proved that Plaint schedule property is portion that covered under Ex-A3 deed and defendants does not hold any right over the same .Also contends that Ex-B13 and 14 Judgment and Decree not binding on Plaintiffs and the said case is also not pleaded in defence hence, they could not be permitted to take aid of such documents and the said Ex-B13 and B14 has no evidentiary value . With the said contentions learned Plaintiff counsel prayed to decree the suit with costs.

2. Per contra , the contention of learned defence counsel is that as per

Ex-A4 Plaint schedule property owned by Smt. Pulavarthi Suramma @

Subbayyamma W/o Sarvaraidu @ Subbarao@ Subbanna and the admission of

PW-1 itself showing that Late Pasupuleti Swamy sold the property covered under

ExA3 to Ambati people which shows that the Plaint schedule property owned by

Late Smt. Pulavarthi Suramma and being Legal heirs on her demise deceased 1st defendant and his siblings inherited the same and under Ex-B12 they all executed

Relinquishment deed in favour of deceased 1st Defendant and on demise of said 1st 6 defendants, his family members the present defendants inherited the same and also contends that the dispute as to the title over Plaint schedule property is already adjudicated in Ex-B13 and B14 Suit which is within the knowledge of Late

Pasupuleti Swamy Legal heirs and children of Late Pasupuleti Anjaneyulu who are some of Plaintiffs in this suit the findings as to schedule property binds them .

[b] Also contends that Ex-B2 to B11 tax receipts and payments that belong to Ex-B12 property shows that Smt. Pulavarthi Suramma is under possession and enjoyment of property that covered under Ex-B12 and thus as per Ex-B12, Deceased 1st Defendant become owner of the same on his intestate death, the present defendants are entitled to claim ownership of the same .

Moreover, Ex-A5 to A8 legal notices itself shows that Plaintiffs does not have sufficient knowledge about identity of plaint schedule property and by mere taking aid of recitals of Ex-B12 which is referred as inherited as an ancestral property by omitting reference to Ex-A4/Ex-B1 in Ex-B12 deed, to knock away the same, with mala-fide intention Plaintiffs filed this suit hence, he unable to say the nature of schedule property and no explanation why all these years no claim is made by

Plaintiffs and by Pasupuleti Swamy and his sons and the identity of property claiming by Plaintiffs and schedule under Ex-B12 are different and that Plaintiffs and their predecessors are never in possession of Plaint schedule property hence , there is no proof of either ownership [or]possession[or]enjoyment over plaint schedule property which appearing from admission of Pw-1 and even he unable to answer that in schedule property covered under Ex-B12 from 1961 mother of

Smt. Pulavarthi Subayamma is under possession and enjoyment of schedule property and his admission that Plaint schedule property covered under Ex-A9 and A10 shows his knowledge about the ownership and possession of the disputed property. When according to the case of Plaintiff , the Plaint schedule property and schedule property covered under Ex-B13 and B14 is one and the same , the findings in Ex-B14 itself clearly shows that the Plaint schedule property is sold by

Pasupuleti Swamy during his life time to Pulaparthi Subbarao in the year of 1947 by way of oral sale and since then they are in possession and enjoyment of the same and thus, the said Ex-B13 and B14 operates as an estoppel against Plaintiffs and also contends that when evidence of Pw-1 shows that there is no partition of 7

Ex-A3 property between his father Late P. Anjaneyulu and his brother Late

Pasupuleti Lakshmana Swamy then the legal heirs of Late P. Lakshman Swamy are proper and necessary parties to the suit and that suit is bad for non joinder of necessary parties thus, the Suit may be dismissed with costs .

Let this court examine the said rival contentions on both sides with respect to the core aspect of the litigation in the light of the evidence let in by the either side and the settled preposition of the law relating to the controversy between both the parties. 3 (a)In Laws(SC)2021-217-T.A. Subramanian and another Vs. R. Pannerselvam, 2021 (2) ALT (SC) 31 (FB). Where in it is held that the Plaintiff in the Suit for Declaration and Possession there of has to stand on his own strength and not on the weakness of defendant and has to prove the title over the scheduled property with his own merits and documents and cannot merely rely on the revenue documents. Which is also reiterated recently in Paturu Sundaraiah Vs. Suri Ranganayakamma and another, 2022 (2) ALT 469 .

(b) Uppara Anjinappa (died) Vs. T. KasimSaheb (died ) per LR reported in 2018 (5) ALT 511 by relying on Union Bank Of India Vs Vasavi Cooperative housing Society Limited reported in (6)(2014)2 SCC 269 ( Para’s 12 ,14 and 15)at Para No 7[relied by defence also] held that, in a suit for declaration of title and possession it is the burden of the plaintiff to prove their title and also their possession and enjoyment of the suit scheduled property.

(c) In ruling reported in 2002(1) ALT 466 D.B Sajana Granites, Madras and other. Vs. Manduva Srinivasa Rao and others;1999(3) ALD 210 K.Venkata Subba Reddy Vs. Bairagi

Ramayya (died) and his L.Rs;2010(6) ALT 699 Executive Officer, Sri Bramaramba

Mallikharjuna Swamy temple, Beeramguda, pathan cheruvu Mandal, Medak Dist. Vs. Sai Krupa Homes and others : Where in it is held that in a suit for declaration of title plaintiffs have to establish not only their title but also title of their vendors .Defendants need not plead and prove possible defects in the plaintiff title and even defendants failed to establish their own title, plaintiff must be non suited if he fails to establish his title.

(d) Yerraveeraiah Vs Kanukuri Shanthamma and others 2018(4) ALT 523 It is held that under Section 101 of Indian Evidence Act Onus is on Plaintiff to prove right in the property.

4. Coming back to the present case facts and circumstances ; being it is the suit for declaration and with consequential injunction over the Plaint schedule property mentioned supra, as per the legal principles held in T.A. Subramanian,

Paturu Sundaraiah, D.B. Sajana Granites and other casesreferred supra has to prove his title over the Plaint schedule property on his own strength but not on the defects (or) weakness of the defendants and as held in Yerra Veeraiah’s referred supra , the Plaintiff /Pw-1 as it his initial burden to prove the assertions as per section 101 of Indian Evidence Act. 8

5. In order to prove the pleadings in the suit, Pw-1 in his evidence reiterated the Plaint averments by way of evidence affidavit and his evidence speaks that as per Ex-A1 and A2 himself and Uma Maheswara Rao/Not party in the

Suit but there is no such pleading in the entire plaint to that effect however, he being one of the co-plaintiffs his evidence is taken into consideration .

[a]With respect to their alleged title over the Plaint schedule property , though initially in their first legal demand notice Ex-A5 they claimed their title over the Plaint schedule property under Registered Partition deed dated 09-12-1935 vide Document number 510/1936 stating that the said Plaint schedule property originally purchased by late Pasupuleti Swamy and on his demise, the said property fell to share of Late Pasupuleti Anjaneyulu in partition with his brother Late

Pasupuleti Lakshman swamy but there after on receiving Ex-A6 reply notice by referring by about Ex-A3 ,A4 and Ex-B12 documents, Plaintiffs sent Ex-A7

Rejoinder notice and concede with defence regarding the purchase of plaint schedule property under Ex-A3 by Late Pasupuleti Swamy and no denial is made as to Ex-B12.On that under Ex-A7 on behalf of deceased 1st Defendant his learned advocate sent Reply notice by denying Ex-A6 legal notice contents and added that

Plaintiffs sold property covered under Ex-A3 to Ambati Prasad and he resold to

Gadiraju Rama Raju and that the Plaint schedule property covered under Ex-A4 belong to deceased 1st defendant under Ex-B12 .

[b]Admittedly, the said Registered Partition deed dated 09-12-1935 vide

Document number 510/1936 is not filed along with Plaint and during evidence and further admittedly and apparently, by the time of said Partition between Late P.

Anjaneyulu and his brother Late Lakshman Swamy, Ex-A3 is not in existence hence, the property covered under Ex-A3 is not partitioned by the time of Ex-A5 as such the contents of Ex-A5 /Legal notice is insignificant.

6. The said evidence of Pw-1 coupled with Ex-A7 shows that after amending their Ex-A5 contents they claimed their title over Plaint schedule property under Ex-A3 document denying the same under Ex-A6 and A8 deceased 1st defendant contended that, Plaintiffs sold the property covered under Ex-A3 to

Ambati Prasad thereafter he resold to Gadiraju Rama Raju and thus , there is no existence of any extent of site that covered under Ex-A3. With respect to Ex-A8 no 9 rejoinder is sent by Plaintiffs at that time but in evidence without pleading in the plaint Pw-1 testified that they never sold any property to Ambati people contrary to the said statement in cross examination he admitted that his grandfather late

Pasupuleti Swamy sold certain extent to Ambati people under Registered document and retained 190 sq yards out of 385 sq.yards and denied suggestion that his grandfather sold entire property covered under Ex-A3 to Ambati people. In order to probablise that his grandfather retained 190 sq.yards after selling certain extent to Ambati people Pw-1 does not choose to file the Registered sale deed executed by his grandfather to Ambati people.

7. On other side he denied suggestion that Plaint schedule property is portion of Ex-A4 property that originally owned by Smt.Pulavarthi Suramma and stated that as per information given by one Adapa Rama Krishna, said

Smt. Pulvarthi Suramma sold her entire property covered under Ex-A4 to Jutta

Gangaraju and to probablise the said fact Pw-1 in his additional evidence filed Ex-

A9 and A10 Sale deeds in which Ex-A9 Registered Sale Deed dated 20-08-1946 vide Document Number : 2084 of 1946 disclosing that it is executed by Late

Smt Pulavarthi Suramma W/o:Sarvarayudu in favour of Jutta Ganga Raju, Adapa

Veeranna and Rama Swamy by selling away the schedule property covered under

Ex-A4 and Ex-A10/Registered Sale Deed dated 08-11-1960 vide Document

Number : 3261 of 1960 disclosing that it is executed by Jutta Ganga Raju,

Adapa Veeranna and Rama Swamy in favour of Kudumula Veeranna by selling the schedule property covered under Ex-A4 purchased by them from

Late.PulaparthiSuramma to Kudumula people .

8. Despite the said Ex-A9 and A10 are denied by Dw’s 1 and 2 in their cross examination no contrary evidence is placed by him to disprove the said Ex-

A9 and A10 documents.Whereas,Dw3 evidence reveals that he is son of Kudumula

Veeranna but he also denied Ex-A10 document and contrary to said recitals he deposed that his father purchased their present property from Late Pasupuleti

Anjaneyulu which is not supported by any document and being Ex-A10 is a

Registered document, the contrary oral evidence of Dw-3 is hit by Sections 91 and 92 of Indian Evidence Act and by Ex-A9 and A10 Sale deeds , Pw-1 is able to 10 probablise the fact that the property covered under Ex-A4 is sold away during life time of Late Pulavarthi Suramma .

Thus, from the said Ex-A9 and A10 Sale deeds it is proved that Plaint schedule property is not the one that covered Ex-A4 that standing in the name of

Smt.Pulavarthi Suramma .

9. In the case there is controversy among the parties to the litigation about the identity of the schedule property and identity of Smt Pulavarthi Suramma and Late Sri Pulavarthi Subbarao@ Subbanna.According to Plaintiff,Smt Pulavarthi

Suramma has no issues and she is not the mother to deceased 1st defendant and

Dw-2.Whereas, according to the defence contentions Late Smt. Pulavarthi

Suramma is also called as Subbamma @ Subbayamma who is 11th Defendant in

OS No 25 of 1961 and her husband Late Sri Sarvarayudu is also known as Subba

Rao @ Subbanna. Admittedly, there is no documentary proof to show that the Late

Smt. Pulavarthi Suramma is also called as Subbamma @ Subbayamma and her husband late Sri Sarvaryudu is also called Subbarao @ Subbanna thus, the evidence of Dw-2 to that effect is not supported by any cogent and reliable evidence .

[b]Whereas, the cross examination of Plaintiffs to Dw-1 and Dw-2 shows that according to them there are no children to Late Smt. Pulavarthi Suramma which is denied by Dw-1 and 2 and Dw-2 replied that himself, deceased 1st defendant and other children mentioned in Ex-B12 are her children but, initially,

Plaintiff does not place any reliable evidence to prove the asserted fact that Late

Smt. Pulavarthi Suramma does not have any children except making suggestions to Dw-1 and 2 hence, the said fact is not proved .

[c]On other side, despite Dw-2 took a stand that he is son to

Smt. Pulavarthi Suramma W/o Sarvarayudu and evidence of Dw-1 is that said

Smt. Pulavarthi Suramma is his paternal grandmother but to support their statements there is no proper documentary evidence [or] reliable evidence that

Smt. Pulavarthi Suramma is also called Subbayamma . On other side ,Dw-2 to one of the suggestion admitted that as per Ex-B12 his parents name are Late

Sri Pulavarthi Subbarao and Late Smt. Pulavarthi Subbayamma the said admissions of Dw-2 coupled with Ex-B14 Judgment findings shows that 11

Smt. Pulavarthi Subbayyama and Late Sri Pulavarthi Subbarao are Wife and

Husband and the recitals of Ex-B12 shows that deceased 1st defendant,Dw-2 and other persons referred in Ex-B12 are the children and grand children of Late

Smt. Pulavarthi Subbayyamma and Late Sri Pulavarthi Subba rao .

Thus, from the said assessed evidence this court concludes that except unsupported oral evidence of Dw-1 and 2 there is no supportive documentary proof [or] any cogent and reliable evidence to prove that Smt. Pulavarthi Suramma is

Smt. Subbayamma and Sri PulavarthiSarvarayudu is Sri Pulavarthi Subbarao @

Subbanna that referred in Ex-B12 and B14 documents .

10.With respect to the Identity of the Plaint schedule property is concern, there are rival contentions on either side as mentioned supra, according to Plaintiffs the schedule property is part and parcel of Ex-A3 property and the property covered under Ex-A3 is never sold to any one including Ambati people, but contrary to statement made in Pw-1 evidence, in cross examination he admitted that his grand father Late Pasupuleti Swamy sold certain portion to Ambati people under

Registered Sale deed and retained 190 sq. yards with him and the present schedule property is such retained portion . But, to substantiate the said statement either the Registered Sale deed executed by Late Pasupuleti Swamy in favour of

Ambati people is not filed before this court.

[b]On other side, despite defence suggested that entire Ex-A3 is property is sold to Ambati people and schedule property is the one covered under Ex-A4 as appreciated above in view of Ex-A9 and A10 Sale deeds, it is improbable to believe and hold that schedule property is one that covered under Ex-A4 since entire 385 sq. yards is sold away from Smt. Pulavarthi Suramma during her life time to third parties and even defence does not choose to file sale deed executed in favour of

Ambati people to probablise their suggestion that entire property covered under

Ex-A3 sold to them thus, both sides failed to probablise their respective stands and in the said circumstances this court opines that unless the sale deed executed in favour of Ambati people it is not possible to conclude and opine how much extent sold to them and whether the schedule property here in is the remaining extent retained by Late Pasupuleti Swamy.

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11.In the instant case during evidence filed Ex-B13 and B14 Decree and

Judgment made in OS No 25 of 1961 contending that the dispute relating to Plaint schedule property is already settled in the said case and the said Judgment binds on these plaintiffs since some of the Plaintiffs are parties to the said Suit. With regard to the said aspect the fact about OS No 25 of 1961 is not specifically pleaded in Written statement but by going through Ex-B14 it is apparent that Late

Chinna Rao [husband of 1st Plaintiff]; Late Narayana Rao [husband of 4th Plaintiff], 9th to 15th Plaintiffs who are children of Late Pasupuleti Anjaneyulu are made as parties/as Defendants [1 to 10] in the said O.S.No. 25 of 1961 which shows that the present plaintiffs are having sufficient knowledge about the said suit affairs . Adding to that the pleading of Plaintiffs that either Late Anjaneyulu [or] present Plaintiffs never sold Plaintiff schedule property to anyone implicitly showing that by suppressing their knowledge about the said O.S.No.25 of 1961 they got filed the present suit , further ,adding to that the evidence of Dw-1 is that the schedule property covered under Ex-B14 is the Plaint schedule property in which the findings at Para’s 9 12,13 specifically discloses that Late Pasupuleti Anjaneyulu and his brother Late Pasupuleti Lakshmana Swamy during their life time sold the schedule property there is ie., as follows :

Ex-B14 : OS No 25 of 1961: Suit for Partition between Smt Paspuleti

Nacharamma and Smt Varahalamma and 11 others on the file of Learned

District Munsif , Kovvur: Property Schedule :

East :“20” sq.yards: Ambati Veeranna and Jutta Gangaraju site South:“10 ”sq.yards: Puntha West:“20”sq.yards:Ambati Anjaneyulu site. North:“10”sq.yards:Mamidi Sivalingam House to Late Sri Pulavarthi Subbanna @ Subba Rao by way of oral sale and prior to 1947 said Late Subbanna @ Subba Rao along with his wife Late Pulavarthi

Subbamma and his son Pulavarthi Nageswara Rao has been staying and that Late

Sri Subbanna @ Subbarao paid taxes to the said schedule property from 1950 itself. With respect to Ex-B14 except denial suggestions and suggesting that the said schedule property in Ex-B14 is no way connected to Plaint schedule property no contra evidence is being placed by Plaintiff side and there are instances that any Appeal is preferred against the said Ex-B14 Judgment and Decree [Ex-B13] 13 hence, the said Ex-B13 and B14 binds on the parties to the said Ex-B14 Suit and it operates as estoppel and any right, claim[or] interest over the schedule property covered under Ex-B14 does not holds good since estoppel by acquiescence operates on children of Late Pasupuleti Anjaneyulu.

12. By production of Ex-B14 as additional evidence it discloses that the

Defendants are having knowledge that the present Plaint schedule property is not the one that covered under Ex-A4 but without pleading the same they framed the written statement to project that Plaint schedule property is part and parcel of Ex-A4 property the reason is that the schedule property covered under Ex- B14 does not have any valid sale document and it is by oral sale .But, the said weakness of the defendants does not strength the case of Plaintiff in the suit for Declaration as held in Union of India Vs. Vasavi Co-operative Housing Society Limited’s case and T.A.

Subramanian and Pathuru Sundaraiah’s case [ relied supra].It is for the Plaintiff to prove that Plaint schedule property either covered under ExB14[or] separate property that covered under Ex-A3 property that owned by Late Pasupuleti Swamy but to prove the same there is no sufficient evidence on the said of Plaintiff and even to assume that ExB14 and Plaint schedule property are one and the same the

Western boundary and Northern Boundary of Ex-B14 and Plaint schedule

property i.e., as per Ex-A14 the Western Boundariar is Ambati Anjaneyulu as per Plaint schedule property, Western boundariar is Ambati Markandeyulu, Gadiraju

Ramaraju whereas, as per Ex-A14 Northern boundariar is Mamidi Sivalingam and Plaint schedule property is Ambati Prasad further as per Ex-A7 Rejoinder

Notice dated 06-05-2010 , the Northern Boundariar is Gadiraju Rama Raju thus, the boundaries of Ex-A14 and Plaint schedule property are not at all tallying, in case, Plaintiffs are claiming their title over Ex-B14 schedule property they are under burden to prove that the boundariars are changed in the course of time but no such efforts are made by the Plaintiff to that effect .

13. On other side, the contention of defence is that under Ex-B12 schedule property covered therein is absolutely owned by deceased 1st defendant and to grab the same Plaintiffs filed the present suit taking aid of omission of recital about reference as to Ex-A4 source of Ex-B12 schedule and as it is merely recited as an ancestral property . While so, the schedule of Ex-B12 is as follows :

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Description of Schedule: 33rd Ward, Gollagudem Cheruvu Road, Tadepalligudem, West Godavari District ;Assessment Number 1080015122 ; D.No: 1-13-3 ,Vacant site,198 Sq. Yards ::

Property Schedule :

East :“50-9” Ft: Passage for Joint lane South:“36-6” Gollagudem Cheruvu Road @ Municipal Road West:“52.3” Ambati Prasad site. North:“32-0” Ambati Sesha Rao and Prasad site.

In which the said property schedule ie., East, West and North boundaries are not tallying with Plaint schedule property boundaries in such a case it is the burden of Plaintiff to prove that the property covered under Ex-B12 and Plaint schedule property are one and the same but no efforts are made by Plaintiff to that effect and there is no reason for such omission on their side and that in the case

Identity of Plaint schedule property is not clear and it is very ambiguous, in which case it is the initial burden of Plaintiffs to prove Identity of Plaint schedule property either it is the extent covered under Ex-A3 [or] under Ex-B12 .

[b]It is the legal preposition held in Shreepath Vs Rajendra Prasad[JT 2000 [7]SC 379 that When ever there is dispute as to identity of property it can be resolved by investigation .if there is a serious dispute with regard to the area and boundaries of the land in question, the non-appointing of the Court

Commissioner results in the serious miscarriage of justice.

14. So far in the instant suit, from the appreciated evidence it is clear that

Identity of schedule property is under dispute. In order to prove the same Plaintiffs ought to have get appointed advocate commissioner to survey the schedule property and to ascertain the actual physical features and boundaries of the Plaint schedule property but for the reasons best known to the Plaintiffs they does not choose to demarcate the Plaint schedule property with certain identification in absence of such material evidence as there is no clarity whether the property is covered under Ex-A3, A4 [or] Ex-B12 and whether the property covered under Ex-

B14 Suit and Ex-A3 and B12 documents are one the same , this court could declare the alleged title of Plaintiffs as claimed for .

[b]Even if Plaintiffs claiming the property covered under Ex-B14 being they have knowledge about the alleged oral sale referred therein the findings of the 15 said Judgement, the Plaintiffs does not have any right, title [or] interest to claim title over the schedule property covered under Ex-B14 as they does not preferred appeal over the said Judgment and Decree and not challenged the same till today the said Ex-B14 Judgment and Decree reached its finality and binds on these plaintiffs and they are estopped to make any claim over the schedule property covered under Ex-B14. Further, they are even estopped by acquiescence because as per the findings in the said Ex-B14 probably from 1959 Late Pulavarthi Subba

Rao and his family are in possession and enjoyment of schedule property referred in Ex-B14 i.e., from the last 61 years prior to this Suit said Pulavarthi people are in possession and enjoyment of schedule property covered under Ex-B14 and even pleadings and evidence of Pw-1 does not discloses specifically from when they are dispossessed from the Plaint schedule property herein which shows that they are uncertain about the dispossession of schedule property besides admittedly, there is no documentary proof that late P. Swamy grandfather of Pw-1 is in possession and enjoyment of Plaint schedule property after he sold certain portion to Ambati people and no scrap of document is being filed to prove possession and enjoyment of Plaint schedule property by Late P. Swamy .

Thus, there is no iota of evidence on record to prove that the Plaint schedule property is part and parcel of schedule property covered under Ex-A3 and that it is belong to Late P. Swamy in which case, Plaintiffs are not entitled to claim any right, title [or] interest over Plaint schedule property.

15.In the case on hand it is one of the contentions of defence that the

Suit is bad for Non joinder of necessary parties and their contentions reveals that being the schedule property is alleged as one covered under Ex-A3 document and admittedly, there is no partition between the children of Late Pasupuleti Swamy ie

Anjaneyulu and Lakshmana Swamy, the legal heirs of Lakshman Swamy are also proper and necessary properties to the suit, with respect to that no contra argument forwarded for Plaintiffs.

[b] As to the said contentions, according to the pleadings in the Plaint of this suit and the details in the findings in Ex-B14 Judgment it is observed the following is the pedigree of family of Late Pasupuleti Swamy.

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Pasupuleti Swamy (Late)

Pasupuleti Lakshman Swamy (Late) Pasupuleti Anjaneyulu (Late) 1st Wife 2nd Wife Smt. 1st Wife Smt. 2nd Wife Smt. 3rd Wife Smt. Nancharamma Vanumulamma Chinnamma Rathamma Varahalamma (Late) (Late)

Four Sons Names and Details Only One Son Pasupuleti unknown(As Per Pleadings in Chinnarao (Late)

O.S.No. 25/1961)

Pasupuleti Satyavathi Pasupuleti Koppisetti Lakshmi (Wife)1st Plaintiff Venkateswara Rao (Daughter)3rd (Son)2nd Plaintiff Plaintiff

Pappop Pasupuleti Pasupulepula Kalla Madduri Puli Pasupuleti Pasupule Narayana ti Kanaka SubbayaRatnam Kanchi Rama Someswara ti Rao [died) Rao 9thRao 10thmma 13thTulasi Kamakshi Ramarao 12th14th15th plaintiff plaintiff plaintiff [died] plaintiff plaintiff plaintiff 11th plaintiff

Pasupuleti Pasupuleti Pasupuleti Yeggina Kamisetti Parvathi Janaki Vara Prasad Venkata Kanaka (Son) 6th (Wife) RamanjaneyVishnu Durga 4th plaintiff ulu (Son) 5th plaintiff (Daughter) (Daughter) 7th plaintiff 8th plaintiff plaintiff

Pasupuleti Pasupuleti Leela Pasupuleti Koti Vijayalakshmi Krishna Mohan Mallikarjuna rao (Wife) 16th(Son) 17th(Son)18th Defendant Defendant Defendant 17 16. As per the findings in Ex-B14 Late Lakshmana Swamy is having two wives and no details of such children and no information about the living status of said two wives and no information about living status of children of Late Lakshmana Swamy. When the alleged Plaint schedule property is part and parcel of Ex-A3 Sale deed executed in favour of Late P. Swamy father of Late Anjaneyulu and Late Lakshmana Swamy as admitted by Pw-1 there is no division of schedule property covered under Ex-A3 between sons of Late P. Swamy , the legal heirs of Late Lakshman Swamy are proper and necessary parties to the suit, despite the mere non joinder of the said legal heirs of Late

Lakshmana Swamy could not be substantive ground to disentitle the Plaintiffs for their claim, the said omission of legal heirs of Late Lakshman Swamy added set back to the

Suit and the said conduct of Plaintiffs shows that they does not have proper reason for claiming right by themselves only by leaving the legal heirs of Late Lakshman Swamy .

Thus, as rightly pointed by learned defence counsel, the suit is also bad for non-joinder of Legal heirs of Late Lakshman Swamy.

17.In the case Plaintiffs claimed for past and future mesne profits as to Plaint schedule property, but, being they failed to prove their alleged right, title[or] interest over the schedule property they are not entitled for any such mesne profits and even no material placed before the court as to assessment of such mesne profits .

18. To conclude, in the suit, the Plaintiffs in the failed to prove their claim for title over the Plaint schedule property and they does not place any evidence as to possession and enjoyment by Late P. Swamy during his life time and there is no evidence when Late

Pasupuleti Swamy [or] his predecessors in title are dispossessed from the Plaint schedule property and allegedly encroached by Defendants[or] his predecessors in title and no evidence that the Plaint schedule property is the one that covered either under Ex-A3 [or]

Ex-B12 [or] B14 and no evidence that property covered under Ex-B12 and B14 are one the same and no evidence as to identity of the Plaint schedule property as appreciated supra and it is main set back in the Suit .

19.In view of the said assessed evidence this court opines that the Plaintiffs who are the legal heirs of Late Pasupuleti Anjaneyulu one of the sons of Late P. Swamy are not entitled to make any claim for declaration for any right, title [or] interest over the Plaint schedule property and possession thereof.

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20. In the result SUIT IS DISMISSED WITH COSTS.

Typed to my dictation by the Stenographer Grade-I on computer, corrected, signed and pronounced by me in open Court this the 2nd day of September, 2024.

SD/- K. MADHAVI

CIVIL JUDGE (SENIOR DIVISION),

TADEPALLIGUDEM

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF FOR DEFENDANTS

PW1 Pasupuleti Kanaka Rao DW1 P.V. Mutyala Rao

DW2 Pulaparthi Suryanarayana

DW3 Kudumala Subba Rao

DOCUMENTS MARKED

For Plaintiff:

Ex.A1 30-08-2010 General Power of Attorney executed by Pasupuleti Satyavathi and others in favour of 10th Plaintiff and Pasupuleti Umamaheswara Rao.

Ex.A2 31-08-2010 General Power of Attorney executed by Pasupuleti Parvathi and others in favour of 10th Plaintiff and Pasupuleti Umamaheswara Rao.

Ex.A3 28-07-1939 Certified copy of Sale Deed executed by Gandham Veeraswamy in favour of Pasupuleti Swamy.

Ex.A4 29-07-1939 Certified copy of Sale Deed executed by Gandham Veeraswamy in favour of Pulavarthi Suramma.

Ex.A5 13-10-2009 Office copy of legal notice got issued by the Plaintiffs to the Deceased 1st Defendant and another.

Ex.A6 05-11-2009 Reply Notice got issued by the deceased 1st Defendant to the Plaintiffs.

Ex.A7 06-05-2010 Office copy of legal notice got issued by the Plaintiffs to the deceased 1st Defendant.

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Ex.A8 08-06-2010 Reply Notice got issued by the deceased 1st Defendant.

Ex.A9 20-08-1946 Certified copy of Registered Sale Deed executed by Pulavarthi Suramma in favour of Jutta Gangaraju and Adapa Veeranna.

Ex.A10 08-11-1960 Photo copy [along with endorsement given by SRO, Tadepalligudem] of Registered Sale Deed executed by Jutta Subba Rao in favour of Kudumula Veeranna.

For Defendants:

Ex.B1 28-07-1939 Registration extract of Registered Sale Deed executed by Gandham Veeraswamy in favour of Pulaparthi Suramma @ Subbayamma.

Ex.B2 20-02-1996 Property Tax Receipt issued in the name of Pulaparthi Suramma @ Subbayamma.

Ex.B3 31-03-1997 Property Tax Receipt issued in the name of Pulaparthi Suramma @ Subbayamma.

Ex.B4 13-09-1998 Property Tax Receipt issued in the name of Pulaparthi Suramma @ Subbayamma.

Ex.B5 30-03-2000 Property Tax Receipt issued in the name of Pulaparthi Suramma @ Subbayamma.

Ex.B6 30-09-2000 Property Tax Receipt issued in the name of Pulaparthi Suramma @ Subbayamma.

Ex.B7 05-05-2004 Property Tax Receipt issued in the name of Pulaparthi Suramma @ Subbayamma.

Ex.B8 31-03-2007 Property Tax Receipt issued in the name of Pulaparthi Suramma @ Subbayamma.

Ex.B9 30-03-2009 Property Tax Receipt issued in the name of Pulaparthi Suramma @ Subbayamma.

Ex.B10 05-11-2014 Property Tax Receipt issued in the name of Pulaparthi Suramma @ Subbayamma.

Ex.B11 12-03-2019 Property Tax Receipt issued in the name of Pulaparthi Suramma @ Subbayamma.

Ex.B12 12-08-2009 Registered Relinquishment Deed executed by Pulaparthi Veera Raghavulu and others in favour of Pulaparthi Gandhi.

Ex.B13 17-04-1962 Certified copy of decree in O.S.No.25/1961 on the file of learned District Munsiff, Kovvur.

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Ex.B14 17-04-1962 Certified copy of judgment in O.S.No.25/1961 on the file of learned District Munsiff, Kovvur along with Clear Copy.

ILD/-KM CJ [SD] TPG.

COPY OF JUDGMENT

PART – I

O.S.No.257/2011

DT.02.09.2024 21

1

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE::

KOVVUR, WEST GODAVARI DISTRICT:

Present: Smt K.Madhavi,

I Addl Junior Civil Judge,

Kovvur.

Thursday, this the 10th day of December, 2020

O.S.No.98 OF 2017

Between:-

1.Smt. Bedampudi Venkata Lakshmi, W/o John Lazerous, Hindu, female, aged 54 years, housewife, R/o D.No. 1-160, Vimaladevipeta, Chinnaigudem, Devarapalli mandal.

2.Sri Yentapalli Bhaskara Rao, S/o late Lakshmayya, Hindu, male, aged 58 years, retired employee, R/o D.No. 3-133, Ambedkar centre, Chinnayagudem, Devarapalli mandal,West Godavari District.

3. Sri Yentapalli Venkateswara Rao, S/o Lakshmayya, Hindu, male, aged 50 years, coolie, R/o D.no. 3-133, Ambedkar Centre, Chinnayagudem, Devarapalli mandal.

4.Smt. Golimey Manga Raju, W/o Srinivasa Rao, Hindu, female, Aged:52 years, housewife, R/o D.No. 5-144, Ramasinghavaram, Dwaraka Tirumala Mandal. … Plaintiffs

Vs.

1.Sri Yentapalli Siddayya, S/o Venkayya, Hindu, male, aged 80 years, protection, R/o D.No.3-137, Ambedkar centre, Chinnayagudem, Devarapalli mandal.

2. Smt. Yentapalli @ Gotham Sridevi, W/o Srinivasa Rao, Hindu, female, aged 35 years, Housewife, R/o D.No.3-137, Ambedkar Centre, Chinnayagudem,Devarapalli mandal.

3. Sri Yentapalli @ Gotham Srinivasa Rao, S/o Gotham Ramulu, Hindu, male, aged 40 years, cultivation, R/o D.No. 3-137, Ambedkar Centre, Chinnayagudem, Devarapalli mandal.

…. Defendants

This suit coming on 08.10.2020 before me for final hearing in the presence of Sri E.Gopala Krishna, Advocate for the Plaintiffs and of Sri N.Suryanarayana, Advocate for Defendants, and having stood over till this day for consideration, this court delivered the following:-

JUDGMENT ::

This suit is filed by the plaintiffs against the defendants seeking declaration and permanent injunction over the plaint schedule property.

2

II. The averments of the plaint in brief are as follows.

Plaintiffs avers that their father and father of D1 are brothers and while they were the members of the joint family they acquired

ABEFGD plaint plan property which is in an extent of Ac.0.05 ½ cents with common lane and they obtained the registered sale deed in the name of D1 as by that time D1 as elder one in the family acted as

Manager hence the deed obtained in his name. Subsequently, about 50 years back D1 and father of plaintiffs partitioned the schedule property orally by leaving a joint passage shown as B C E E 1 in the plaint plan. And A B C D portion fell to the share of plaintiff’s father where as B C E1 F G D portion fell to the share of D1 and the portion

C B E1 E was common lane for ingress and egress for both the parties.

Thereafter, the plaintiffs’ father constructed a house in his name in the said A B C D site and mutated his name in the panchayat records and paying taxes regularly. And he also obtained electrical collection vide

SC No.581 and also paid the electrical consumption charges timely.

a) He further averred that D1 filed a suit vide OS No. 812 of 2006 on the file of Hon’ble Principal Senior Civil Judge’s Court, Kovvur alleging that the plaintiffs’ father and 2nd plaintiff obstructing C B E1 E lane and it was dismissed on 01.04.2009.And it is averred that the plaintiff’s father property was clearly shown as ABHG and the plaintiff’s father and the plaintiffs have been continuously and interruptedly enjoying A B C D portion of the plaint schedule property. And the said enjoyment was also recorded in Gram panchayat records from 1961- 1962 and till 2009, they paid the taxes.

b) It is averred that vide registered settlement deed, dated, 28.04.2010 the father’s of 1st plaintiff settled plaint schedule property since then the 1st plaintiff have been under possession and enjoyment of the said property and paying the taxes regularly. And she also perfected her title possession and enjoyment even by adverse possession as well and the old foundation of the removed house is still in existence which proves their continuous and long possession and enjoyment of 1st plaintiff and her predecessors.

c)While so, about two years back the 1st plaintiff demolished the old house in the schedule property and prepared to construct new house therein and since then the defendants are causing much troubles over her possession and enjoyment and regarding C B E1 E 3 lane and obstructing their construction over the same. And due to their high handedness she is unable to construct a house therein except erecting a small thatched house and running a petty shop. And it is also averred that D1 has no children as such D3 who is his distant relative taking shelter in the house claiming as foster son and D2 is who is wife of D3 is a litigant woman and she allegedly proclaiming in the village that she will dispossess 1st plaintiff from the A B C D plaint schedule property and her acts are instigated by D1 and D3 and recently the defendants assaulted 1st plaintiff’s husband and caused her to hurt to him and it was settled by Devarapalli police. Despite there are continuing their threats. Thus, as the defendants are acting prejudicial to the title possession and enjoyment of the plaintiffs right over A B C D plaint schedule property she filed the present suit seeking declaration over the plaint schedule property with consequential relief of perpetual injunction. Hence, the suit.

III. Defendants 1 to 3 filed written statement. D1 admitted that D3 is a foster son and he performed the marriage D3 with D2. The defendants denied the entire plaint averments including the relationship among them and contended that the address of the plaintiffs mentioned in long cause title are incorrect and the 1st plaintiff at present residing in a Gopalapuram, 2nd plaintiff at Kovvur, 3rd plaintiff at Pangidigudem where as 4th plaintiff at Ramasingavaram.

Similarly, the name of 2nd defendant is Yentapalli Sridevi but not

Gotham Sridevi and 3rd defendant name is Yentapalli Srinivasa Rao but not Gotham Srinivasa Rao.

a) And it is contended that originally D1 with his self earnings purchased A B E F G D property of an extent Ac.0.06 cents out of which ½ cent was given for the purpose of road thus, he remained in possession of Ac.0.05 ½ cents. And there was no occasion (or) necessity for partitioning of the said Ac.0.05 ½ cents between D1 and his brother Lakshmaiah. Thus, the alleged partition averred by the plaintiff is false. And contended that admittedly there is a passage on the south of Ac.0.05 ½ cents for ingress and egress of Yentapalli

Krishna for not for any others. However, D1 allowed his brother

Lakshmaiah to reside in a thatched house raised by him in the site shown as A B C D of plaint plan as a licensee of D1 who resided there 4 in and vacated 15 years back and went to the house of his daughter i.e. 1st plaintiff in the same village and he died there only .

b) And there was no revenue record in the name of late

Lakshmaiah and if there is any certificate issued by Sarpanch

Chinnaigudem Gram Panchayat vide certificate, dated 15.12.2011 it is a manipulated documents and registers of gram panchayat and the said document does not confer any ownership of right to the 1st plaintiff over A B C D plaint schedule property. Even the service connection is there in the name of late Lakshmaiah the same does not confer any right (or) title to the 1st plaintiff as falsely averred by her.

c) It is further contended in the civil suit OS No.812 of 2006

D1 did not shown any site that belong to late Lakshmaiah. And it is a suit is dismissed for default hence, the same cannot make any forensic capital basing on the pleadings in the said suit. And the defendants are unaware about the registered settlement deed, dated 28.04.2010 executed by late Lakshmaiah land late Somalamma in favor of 1st plaintiff and the same does not confer any right (or) title to the 1st plaintiff as the executors does not have any such right over the property settled in favor of 1st plaintiff and merely it is a collusive and void document not binding on the D1 and in any manner it does not defeat the right of this D1 and the said settlement deed is not attested in accordance of law and it is never acted upon.

d) It is also contended that in the said Ac.0.02 cents of site

D1 raised a thatched hut and residing therein and in Ac.0.03 ½ cents

D2 and D3 have constructed a colony house and residing therein.

Thus, the plaintiffs have no right and title and possession over the schedule property and D1 is absolute owner of the schedule properly and it is under possession of the defendants. But, with all false averments plaintiff filed the suit without any cause of action and to knock away the property that belong to D1.

e) And further contended that the 1st plaintiff and her men have allegedly attacked D1 and caused injuries to him and he gave a report to Devarapalli police and charge sheet also filed regarding the said incident. Finally, contended that, plaintiffs 2 to 4 are neither necessary nor proper parties to the suit and they are henchmen of the 1st plaintiff. And D1 have been under possession and enjoyment of the plaint schedule property till 28.09.2015 and he executed a registered 5

Settlement Deed in favour of D2 and D3 and settled Ac.0.05 ½ cents together with a colony house and delivered possession said property along with deed. And it was accepted by D2 and D3. Thus, at present

D2 and D3 are the absolute owners of the schedule property and they permitted D1 to reside thatched situated in front of colony house in

Ac.0.05 ½ cents of site. With the said contentions the defendants prayed the court to dismiss the suit.

IV. After considering the pleadings on 23.10.2017, my learned predecessor-in-office framed the following issues for consideration:

1. Whether the plaintiffs are able to establish the right,

title and possession of plaint schedule property by Lakshmayya

and Somalamma?

2. Whether the settlement deed, dated 28.04.2010 is true, valid and binding on the defendants?

3. Whether the plaintiffs are entitled for the relief of

declaration as absolute owner of the plaint schedule property?

4. Whether the plaintiffs are able to establish the

possession and enjoyment by the 1 st plaintiff in the plaint

schedule property?

5. Whether the 1 st plaintiff is entitled for the relief of permanent injunction, as prayed for?

6. To what relief?

V: During the course of trial 1st Plaintiff is examined as Pw1 and to corroborate her evidence PW2 and PW3 are examined and got marked

Exs.A1 to A14 towards documentary evidence. In contra on the side of defence D1 is examined as Dw-1 and to corroborate his evidence Dw-2 and DW3 are examined towards oral evidence. Ex.B1 is marked towards documentary evidence .

VI. Heard learned counsels for both the parties by way of their written and reply arguments and perused the material on record.

VII. Issues I to V:

1.It is the contention of the learned Plaintiff counsel that , the consistent evidence of Pw’s 1 and 2 coupled with ExA1 proves that her parents Late Lakshmayya and Somalamma settled the

Plaint scheduled property to her . And contended that the settlers are having clear and lawful title over the plaint scheduled property where the father of Pw-1 and 2 ie late Lakshmayya is the brother 6 of Dw-1 and while they were residing as Joint family the plaint scheduled property purchased with the Joint family funds and he being elder one in the family the scheduled property is purchased in his name later in oral partition Eastern side portion fell to the share of Late Lakshmayya and Western side portion to Dw-1 and since 50 years they are enjoying their possession over the property . Further, contended that ExA2, A3 and A9 proves the possession of the scheduled property by Late Lakshmayya and later this Pw-1 basing on ExA1. And contended that earlier admittedly Dw-1 filed

Injunction suit on Late Lakshmayya as appearing in ExA4 to A8 in which Dw-1 clearly pleaded and showed the eastern portion under possession of Late Lakshmayya besides the boundaries shown in Ex-A13 also shows that Eastern Boundary is Late

Lakshmayya house site which supports the case of Pw-1 further

Dw-2 also admitted the contents of ExA13 .Besides , Ex-A10 to A12 proves that Dw-1 defence pleas are false . And also argued that the admitted evidence of Dw-2 shows that Late Lakshmayya died in the scheduled property itself which disproves the defence plea regarding permissive possession and also the allegation that Late

Lakshmayya vacated the scheduled property about 15–fifteen years and stayed with Pw-1 till his last breathe .With the said contentions learned Plaintiff counsel prayed the court to decree the suit as prayed for .

2. Per contra, learned defence counsel argued that when Pw- 1 based on ExA1 to prove her title over the scheduled property being ExA1 is a Settlement Deed it must be proved by her in accordance of section 68 of Indian Evidence Act . And when according to Pw-1 earlier the Plaint scheduled property and the remaining portion under possession of Dw-1 is purchased out of

Joint family funds of the each family member Pw-1 is under obligation to place sufficient evidence to that effect. Moreover,

Seethaiah, Peraiah and they are two sisters to Late Lakshmayya and Dw-1 and there is no explanation why they are excluded during alleged oral partition and the said oral partition is also not proved by Pw-1. The admissions extracted in her evidence proves the credibleness in her case wherein she unable to say the actual extent purchased by Dw-1 and even she deposed that she has 7 document to prove the Joint family by the time of purchase of the scheduled property by Dw-1 she did not choose to file the same

before the court .

Let us examine the rival contentions raised on both sides with

respect to the core aspect of the litigation in the light of the

evidence let in by the either side and the settled proposition of

the law relating to the controversy between both the parties.

3. Plaint Scheduled property in the Suit is :

DescriptioWest Godavari District, Ananathapalli Sub Registry Office, n of plaint Devarapalli Mandal, Chinnayigudem Village and Panchayat schedule Limits, R.S.No. 194 in a total extent of Ac.0.65 cents out of property which an extent of Ac. 0.03 cents or 145 sq. yards of site bounded on: East:Road South: 2 yards width land West: 1st Defendant house and site North: Site of Yentapalli Vajram

Within these above said boundaries the site in an extent of Ac.

0.03 cents (or) 145 sq. yards with water tap and electrical service therein and with all easementary rights therein.

4. Before appreciating evidence on record it is pertinent to look into the settled proposition of law as the burden of proof in a suit of declaration and Adverse Possession as well. In S.M Karim Vs Bibi

Sakinal reported in (1964) 6 SCR 780 it is held that, Plaintiff filing a title suit should very clear about the origin of title over the property .In Union Bank Of India Vs Vasavi Cooperative housing Society

Limited reported in (6)(2014)2 SCC 269 :Para No 15 : The legal position therefore is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it irrespective of the question whether the defendants have proved their case (or) not . And in Uppara

Anjinappa (died) Vs. T. KasimSaheb (died ) per LR reported in

2018 (5) ALT 511 by relying on Union Bank Of India Vs Vasavi

Cooperative housing Society Limited reported in (6)(2014)2

SCC 269 ( Para 12 , 14 and 15 ) , at Para No 7 held that, in a suit for declaration of title and possession it is the burden of the plaintiff to 8 prove their title and also their possession and enjoyment of the suit scheduled property .

At Para No 12 : Held that, Plea of adverse possession is a double edged sword .Any plea of adverse possession contains an admission that the opposite party is the owner of the property .

But the said title of the opposite party has been extinguished because of the open hostile possession with animus by the claimant for the statutory period . Therefore by pleading adverse possession a party admits the initial title of the opposite party which however is said to be extinguished. At Para No 13by referring to Karnataka Board of Wakf Vs Government of India (2)(2004) 10 SCC 779 ( Para 11 and 12 ) Plaintiff pleading adverse possession specifically mention in their plaint . And ,in 2010(6)

ALT 699 Executive Officer, Sri Bramaramba Mallikharjuna

Swamy temple, Beeramguda, pathan cheruvu Mandal,

Medak Dist. Vs. Sai Krupa Homes and others - where in it is held that in a suit for declaration of title plaintiffs have to establish not only their title but also title of their vendors. Thus, as per settled proposition of law it is for Plaintiff to prove that she has clear title over the disputed property and shall prove that her predecessor in title have lawful right and clear title over the same . further shall prove her lawful possession and enjoyment over the said property.

5. The Plaint Plan Property is described as ABEFGD, The

Disputed property for which declaration sought for is mentioned as

ABCD and Share fell to Dw-1 is mentioned as BCE1FGD, Common lane on South of the Plaint property is mentioned as CBE1E .

6. Admitted facts : Sale deed for the entire Plaint Property

ABEFGD in the name of Dw-1, Existence of Common lane ,Defendants admits filing of earlier suit for injunction vide O.S No: 812 of 2006.Relationship among the parties to the suit .

7. Disputed Facts: Oral Partition between Late Lakshmayya and Dw-1 , Alleged rights of Late Lakshmayya over A B C D property in pursuance of ExA1. Defendants denying Ex/A1 deed .

8. Plaintiffs are the Children of Late Lakshmayya; D1 is

Paternal uncle to Pw-1, D3 is the Foster son of D1 and D2 is wife of D3 ,Late Lakshmayya and D1 are brothers . The Children of Late 9

Lakshmayya filed this suit for declaration of the said mentioned property against their Paternal uncle D1 and his family members.

9. Coming to the present suit facts and circumstances when we analyse the case in the light of the said precedential guidance it is the pleading and evidence of Pw/1 that admittedly, the said entire

ABEFGD purchased by Dw-1 under registered sale deed dated 1/11.1961 vide Document number 829/1961 from Chinnam

Venkatramayya and Dharmayya but he purchased with Joint Family funds .Being Dw-1 is elder in the Family being Manager of the Family the said property was purchased in his name .And about 50 years back in the oral partition between Late Lakshmayya and Dw-1 ABCD portion i.e the Plaint Scheduled property fell to his share since then he paid the taxes till 2009 and he resided therein with his family members till his last breathe and before that the said Late lakshmayya and his wife Late Somalamma executed a Registered Settlement

Deed/ExA1 in favor of Pw-1 settling the said share ABCD fell to Late

Lakshmayya and since she has been under possession and enjoyment of the said property by paying requisite taxes . The said factum of possession and enjoyment and payment of taxes are evidences from

Ex-A2,A3 and A9 and even by adverse possession they perfected their title over the same .

10. Her statement further discloses that earlier Dw-1 filed an

Injunction Suit on Late Lakshmayya regarding usage of common lane i.e., CBE1E vide O.S No 812 of 2006 disposed of on the file of this court in which Dw-1 clearly pleaded the possession of

Late Lakshmayya on his eastern side shown as ABGH in the plaint plan therein as evidencing from Ex-A5 to A8 .

11.And also stated that after demolishing the old house when she attempted to construct a new house in ABCD portion they are causing obstruction in enjoying the said common lane CBE1E by acting high handedly and due to troubles she unable to construct the house and hence by laying a thatched hut and petty shop she has been residing therein despite Dw-2 and D2 allegedly proclaiming that they will vacate her from the disputed property by denying her right over the same .And even they attacked her husband and assaulted for which they lodged a Police report before Devarapalli Police Station .

Thus, the said oral evidence of Pw-1 succinctly shows that to prove her 10 claimed right over the scheduled property she basically relied on ExA1 and also further relied n ExA2,A3 and A9.

12. Per contra to her pleadings and evidence of Pw-1, Dw1 contention and evidence is that, he is the absolute owner of the Ac0-6 cents and he purchased from his own funds and it is his self acquired property. And out of Ac0-6 cents the government acquired Ac.0-1/2 cent for road purpose and he denied the alleged oral partition and testified that he permitted his brother Late Lakshmayya to reside therein by constructing thatched hut thus he is only licensee and not sharer . Further deposed that he stayed there for some time and about 15 years back he shifted to house of Pw-1 and resided there itself till last breathe. Further, deposed ExA2,A3 and A9 are the documents obtained on influence and admitted ExA4 to A8 and deposed that in the said suit he pleaded as Permissive possessor and not as sharer . More over being it is disposed as Dismissed for default

Pw-1 cannot base her pleadings on such suit and deposed ExA1 is a collusive deed and he has no knowledge about the same. Further testified that at present he is residing in ABCD portion and in remaining Ac0-3 ½ cents Dw-2 and D2 are residing by constructing the colony house .Thus, the said evidence of Dw-1 discloses that he denying execution of ExA1 and title of late lakshmayya and the possession of Pw-1 as well by contra claiming that he is the absolute owner of the entire ABEFGD .

13. It is the law under section 101 and 102 of Indian Evidence

Act that he who asserts must prove the fact . Further the settled legal principles as reproduced above enunciates that in a Suit for

Declaration the entire burned is on the shoulders of Plaintiff to prove that the alleged right accrued by him/her is a lawful one and even her settler have the lawful title , right or interest over the property that settled by him/her . Coming to the present suit, as mentioned Pw-1 relied on ExA1 to prove her rights over the scheduled property .

ExA1 is Registered Settlement Deed appears to be executed by her parents Late Lakshmayya and Late Somalamma . As per the proposition of law held in Executive Officer, Sri Bramaramba

Mallikharjuna Swamy temple’s case ( Supra) hence Pw-1 is under obligation to prove how Late Lakshmayya acquired the scheduled property . With respect to that the admitted evidence of Pw- 11 1 is that originally Dw-1 purchased an extent of Ac0-6 ½ cents of land in his name he purchased the same with Joint family funds and being elder in the family it is purchased in his name . To prove the said factum of joint family and Dw-1 is acted as manager of the said

Joint family and the said ABEFGD property purchased with joint family funds despite in the cross examination she deposed that she have requisite documentary to prove the existence of Joint family for the reasons best known to her she failed to produce the said evidence.

Further, according to the admitted evidence of Pw-1 besides her father late lakshmayya, her paternal uncle Dw-1 they are four siblings to them i.e., Seethaiah, Perayya and two female heirs. In such a case she has every opportunity to her to prove the existence of alleged

Joint family and to prove Dw-1 acted as manager of the Joint family by examining the remaining siblings of Dw-1 but she did not examined to prove the same. Despite learned plaintiff counsel elicited from Dw-1 that earlier they resided as joint family the said statement is not sufficient to prove that Dw-1 acted as Karta/Manager of the

Joint family at relevant period. And nothing elicited from Dw-1 to prove the same.

14. Though it is recited in ExA1 as oral partition and Pw-1 also deposed the same to prove the said oral partition , she ought to have examined the other sharers of the Joint family (or) else could have filed any document to show that the said alleged oral partition is actuated upon. Pw-1 relied on ExA3 The Declaration certificate

dated 15/12/2011 issued by Panchayath Secretary, Chinnaigudem ,

Devarapalli Mandal . Wherein the said contents discloses that from 1961 to 2009 the taxes are generated in the name of Yentapalli

Chinna Lakshmayya and from 2009 to tiltle date the Taxes are generating in the name of Bethampudi Venkata lakshmi .In order to believe the contents of ExA3 Pw-1 ought to have examined the concerned authority who issued the same but apparently Pw-1 did not examined Panchayath Secretary,Chinnaigudem Village of Devarapalli

Mandal who issued ExA3 to prove hence the same is not proved sufficiently as required under law. Besides, the said ExA3 did not comprised the description of the property and its identification in consonance to ExA1 deed property hence the said ExA3 not valid proof to believe the alleged oral partition between Pw-1 father Late 12

Lakshamyya @ Chinna lakshmayya and Dw-1.Though Pw-1 deposed about oral partition and recitals of ExA1 disclosing the alleged oral partition there is no sufficient proof to that effect hence the evidence of Pw-1 with respect to the oral partition is not believed.

15.It is also the evidence of Pw-1 that in the earlier injunction suit Dw-1 averred the possession of Late Lakshmayya which is one of the circumstance to consider the oral partition. To substantiate the said oral evidence Pw-1 relied on ExA4 to A8 which the Plaint and Written statement and the connected papers of the

Interlocutory application filed in the said Suit vide O.S.No. 802 of 2006. The careful examination of the said exhibits i.e., ExA4 to A8 discloses the Suit filed by Dw-1 against Lakshmayya pleading that said lakshamyya obstructing usage of the common lane and the

Plaint plan filed in the said suit discloses that Pw-1 showed ABGH of an extent Ac2-00cents in the possession of Late Lakshmayya and showed AGFED portion of an extent Ac0-5 ½ cents under his possession and enjoyment and ABCD passage of an extent 4 feet and the pleadings in the said plaint/Ex-A6 discloses that he gave the said 2 cents of land to Late Lakshmaiah in the presence of elders Kannem

Peda Venkaiah, Somisetti Venkatesu, Yentapalli Geddiyya, Yangala

Surya Raoetc . In contra late Lakshmayya and Pw-2 being defendants averred that they got the said ABGH /Ac0-2 cents of site in the oral partition between Late Lakshmayya and Dw-1 herein thus, in the said suit and present suit the case of Dw-1 is one and same whereas the ExA7 and A8 contents submitted on behalf of Late

Lakshmayya and D2( Pw-2 herein ) shows that in that suit that pleaded that they acquired the said Ac0-2 cents of land in the oral partition whereas ExA1 discloses that the said late lakshmayya settled an extent of Ac0-3 cents of Ac0-3cents (or) 145 Square Yards comprising tiled house aged 30 years . Which shows that Late

Lakshmayya settled additional extent of one cent which is contrary to his pleadings in ExA7 and A8 and the said inconsistent pleas shows the credibleness of Pw1. Thus, the said ExA4 to A8 not serving the purpose for which they adduced on their side but shows that variation of the extent alleged to be under their possession.

16. As mentioned above Pw-1 primarily relied on ExA1 to prove her title over the scheduled property. ExA1 is the Registered Gift 13 deed,but, the said deed is denied by other side i.e., defendants the

Plaintiff /Pw-1 is under heavy burden to prove the contents of the said deed and to prove the genuineness of the said deed . And ExA1 as

Registered Gift Settlement deed and compulsory attestable document as required under section 123 of transfer of property Act to prove the same Pw-1 need to examine at-least one of the attester of the said deed as required under section 68 of Indian Evidence Act . The significance of examining one of the attestor is reiterated in ruling reported in (2015) 8 SCC 615 - Jagdish Chand Sharma v. Narain

Singh Saini (Dead) Through LRs. and Others referring to Sections 68 of the Evidence Act, it was observed:

“22.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence.”

17. So far in the instant suit for the reasons best known to Pw-1 she did not choose to examine attestors of the said deed despite it is mandatory under law as section 68 of Indian Evidence Act . In the circumstance this court opines that Pw-1 did not proved ExA1 which is the document based by her to prove her title in such case the other aspects in the suit does not help out her to substantiate her suit claim.

Further, Pw-1 to prove her possession and enjoyment over the scheduled property relied on ExA2 Declaration certificate dated 11/4/2017 issued by Panchayath Secretary ,Chinnaigudem,

Devarapalli Mandal and ExA8 House Tax receipts with respect to the

Plaint scheduled property . But the said ExA2 and A9 in no manner helps her suit claim since she failed to prove ExA1 Registration Gift

Settlement Deed and also failed to prove the title of her father Late

Lakshmayya . It is settled principle of law that Mutation in the

Panchayath records regarding the House tax receipts is not a valid evidence to adjudicate and declare the property right of a person . A

Tax receipt is a document that shows the person who is paying the tax the scope and limit of the said tax receipts is very restricted usage and the same cannot be evidence to declare the legal right of the 14 person regarding the property mentioned in the tax receipt. Hence the said Ex.A2 and A9 does not prove the case of Pw-1.

18. Plaintiff/ Pw-1 also pleaded that the title of her father Late

Lakshmayya and thereafter her title over the scheduled property is perfected by way of hostile possession over the same .And , here the contention of the learned plaintiff counsel ExA10 to A12 are the documents relating to the Application submitted by Yentapalli

Venkata Lakshmi wife of Dw-1 to Andhra Pradesh State Housing

Corporation for sanctioning of the loan by keeping mortgage of the property referred therein . And also relied on ExA12 Certified copy of the Registered Mortgage Deed dated 17/12/2011 executed by Dw-2 in favor of the Mahindra Rural Financing Limited to raise loan for constructing a house in an extent of 0-2 ½ cents of land situated at

D.No 3-137/1 of R.S No 194 of Chinnaigudem Village by relying on said ExA10 to 12 the learned Plaintiff counsel contends that as there is oral partition between Late Lakshmayya and Dw-1 , the wife of

Dw-1 and Dw-1 applied for the loans only to the extent of Ac0-2 ½ cents and the admitted boundaries of ExA12 shows the house and site of Late Lakshamyya on eastern side of said Ac0-2 ½ cents hence the case of PW-1 shall be believed and the adverse possession of late lakshmayya thereafter this Pw-1 shall be recognized by this court .

19.With respect to the said contentions as to the aspect of adverse possession is concerned the mind of court is redolent to refer the case law reported in Bhimrao Danyanoba Patil Vs State of

Maharashtra, 2003 (1) Bom. L.R. 322 it has been held that, unless enjoyment of the property is accompanied by adverse animus, mere possession for a long period even over a statutory period, would not be sufficient to mature the title to the property by adverse possession.

In Cheedella Padmavathi’s case, 2015 (5) ALT 634, it was held that a person pleading adverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, thus it is for him to clearly plead and establish all facts necessary for adverse possession.

A Person who claims adverse possession should show: (a) On what date he came into possession, (b) What was the nature of his possession, (c) Whether the factum of possession was known to the other party. (d) How long his possession has continued, and (e) His possession was open and undisturbed. And in Ram Nagina Rai & 15

Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr( (2019) 13 SCC

324) held that where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time.And in Narasamma and Another Vs

A.Krishnappa (died ) through LR’s ( 2020 AIR SC 4714) held that plea of adverse possession and title over the property cannot sustain at once. Further, held that, to constitute such adverse possession, the three classic requirements, which need to co-exist were again emphasized, nec vi, i.e., adequate in continuity, nec clam, i.e., adequate in publicity and nec precario, i.e., adverse to a competitor, in denial of title and his knowledge.

20. As per the analogy held in the said rulings when this court analyze the present suit facts and circumstance along with the available evidence as discussed above Pw-1 failed to prove the prior oral partition between Late Lakshmayya and Dw-1 and the documentary evidence ExA2,A3 and A9 relied by her to prove their possession and enjoyment is not consistent and contrary to their pleadings in ExA7 and ExA8 documents and there is no explanation about the variation of the extent pleaded in Ex-A7 and A8 documents and ExA1 when Late Lakshmayya ascribed an extent of Ac 0-3 ½ cents in the alleged oral partition whey he did not averred the same in

Ex-A7 and A8 suit proceedings though he averred about the said oral partition . When he pleaded about the oral partition in the said Suit vide O.S No 812 of 2006 why he specifically confined his right to Ac0- 2cents only. And there is no sufficient evidence to prove that her possession in the scheduled property perfected by way of adverse possession .The said inconsistencies in the said evidence relied by Pw- 1 once again showing their credence .

21. Even the oral evidence of Pw-1 is not static as to the extent purchased by Dw-1 and their evidence does not proves her case pleadings sufficiently and the documentary evidence relied by her not supporting her case. Further, with the said evidence Pw-1 neither proved the title of her father Late Lakshmayya and her possession in hostile manner . Despite it is the stand of the learned Plaintiff counsel that Dw-1 and Dw-2 admitted that the Eastern Boundary to the 16 house of Dw-1 is mentioned as Lakshamayya house and site by mere recited as boundary the same is not sufficient to declare the title of

Pw-1 as claimed by her .Moreover, the admitted evidence of Pw-1 itself showing that Dw-2 and 3 constructed their present house in an extent of Ac0-3 ½ cents in such case there exists remaining extent of

Ac0-2 cents since ½ cent give to the road by Dw-1 but evidence of

Pw1 and recitals of ExA1 is Late Lakshmayya ascribed Ac.0-3 cents of site which is quite contrary to the very case of Plaintiff. Despite Pw-1 examined her brother Pw-2 as a witness to corroborate her case . Pw- 1 herself failed to prove ExA1 and her alleged right, title over the said property in such a case the said evidence of Pw-2 does not gain any importance to consider his evidence in order to believe the case of Pw- 1 .Similarly, the evidence of Pw-3 as well .

22. It is the contention of the learned defence counsel that the admitted evidence of Dw-1 shows that Pw-1 has been residing on his eastern side and she also running a petty shop therein and the said admissions in evidence of Dw1 is one of the positive proof to believe the case of Plaintiff . Here, this court finds that it is pertinent to refer the proposition of law held in 2006(3) ALD 753 On the way bakers

oven, Hyderabad and another Vs Susheela Devi and others

Wherein it is held that at Para 16 : In deciding lis between the parties , the court is to be guided by the extent of proof of the case of the plaintiff, on the one hand, and the nature of the defence offered by the defendants, on the other hand, if the plaintiffs fails to establish his case, the court would be entitled to dismiss the claim, without even verifying the kind of resistance offered by the defendant. However, if the plaintiff makes a semblance of his case, the burden shifts to the defendant, to put forward his case and in the process, disprove the case of the plaintiff. The failure of a defendant to disprove or to neutralize the claim of the plaintiff, in such cases, may provide the basis for the court to decree the suit. But this court is unable concede with the said contention of the learned plaintiff counsel because as discussed above Pw-1 failed to prove her pleadings regarding her title over the scheduled property and also failed to place any explanation as to variation of the extent as discussed above . And as discussed in the fore gone paras being it is a suit for declaration the heavy burden lies on the shoulder of the Plaintiff than the defendant when the Plaintiff 17 did not discharge his burden the onus does not lies on the defendant and the Plaintiff is not supposed to take the weakness of the defence and admissions thereof . Despite defendant admitted that Pw-1 is residing in one of the boundary when there is no cogent documentary evidence to prove the possession if any as per the case of Pw-1 then the said admissions of Dw-1 does not come to the rescue of Plaintiff.

When Plaintiff unable to stand on the merits of her own case he cannot fall back on the weakness of the defence case. In view of the said circumstances this court is unable to concede with the case of Learned

Plaintiff counsel.

23. So far as the evidence of defence pleas are concerned their evidence assumes no importance since Plaintiff failed to prove her assertions as appreciated above . However, the evidence of Dw’s 1 to 3 coupled with ExB1 shows that the total extent of Ac.0-5 ½ cents situated in R.S No 829/1961 is under possession and enjoyment by the defendants in such a case Plaintiff is not entitled to seek any injunction as claimed for.

ISSUE No.VI: In view of the said discussion this court opines that the Plaintiff is not entitled to the relief for Declaration over the

Plaint scheduled property with the consequential relief for Injunction basing on ExA1 and even as Adverse Possession.

24. In the result Suit is Dismissed with no costs.

Dictated directly on computer, corrected, signed and

pronounced by me in open court, this the 10 th day of December,

2020.

Sd/-K. Madhavi

I ADDITIONAL JUNIOR CIVIL JUDGE,

KOVVUR,

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PLAINTIFFS

P.W.1: Bedampudi Venkata Lakshmi P.W.2: Yantapalli Bhaskar Rao P.W.3: Somisetti Venkateswara Rao 18

FOR DEFENDANTS

D.W.1: Yantapalli Siddayya (1st defendant) D.W.2: Yantapalli @ Gotham Srinivasa Rao (3rd defendant) D.W.3: Pilli Mangaraju

Documents marked

For Plaintiffs: Ex.A1 : Registered settlement deed, dated 28.04.2010. Ex.A2 : Certificate issued by Gram Panchayat Chinnaigudem,

dated 11.04.2017.

Ex.A3 : Certificate issued by Panchayat Secretary, Gram Panchayat, Chinnaigudem, dated 15.12.2011

Ex.A4 : Certified copy of Judgment in OS No.812 of 2006 on the file of Principal Junior Civil Judge, Kovvur.

Ex.A5 : Certified copy of affidavit filed by Yantapalli Siddaiah in I.A.No.2888/2006 in OS No.812 of 2006 on the file of

Principal Junior Civil Judge, Kovvur.

Ex.A6 : Certified copy of plaint filed in OS No.812/2006.

Ex.A7 : Certified copy of Written statement filed in OS No. 812/2006.

Ex.A8 : Certified copy of counter filed in IA No. 2888 of 2006 in

OS No. 812/2006 on the file of Principal Junior Civil

Judge, Kovvur.

Ex.A9 : Original tax receipts in respect of assessment No.1684 pertaining to the year of 2016-2017, 2015-2016, 2009- 2010, 2010-11, 2012-13, 2013-14 (15 in number)

Ex.A10 : Attested copy of application submitted before A.P.State Housing Society, West Godavari District obtained under RTI Act.

Ex.A11 : Attested copy of mortgage deed,

Ex.A12 : Attested copy of certificate of residence

Ex.A13 : Certified Copy of Mortgage deed, dated 16.12.2011

Ex.A14 : Original of Market value in respect of property at S.No.194, D.No.3-138.

For Defendants:-

Ex.B1:Certified copy of registered settlement deed, dated 28.09.2015 executed by Yantapalli Siddayya in favour of Yantapalli Srinivas and Sridevi.

Sd/-K.M

IAJCJ, KVR.

O.S.No.72 of 2013 SCJ, TPG, WG

IN THE COURT OF CIVIL JUDGE (SENIOR DIVISION)

TADEPALLIGUDEM

PRESENT: Smt. K.Madhavi,

Civil Judge [Senior Division] , Tadepalligudem.

Friday, this the 6th day of September, 2024

Original Suit No.72 of 2013

Between:

Sri. Mallidi Chandra Mohan Venkata Reddy, S/o. Krishna Raghava Reddy, male, aged 40 years, Business, r/o. D.No.10-29-30, Ward No.19, Bhagyalakshmi Peta, Tadepalligudem, West Godavari District. …PLAINTIFF

And

1. Sri. Nallimilli Srinivasa Reddy, S/o. Muni Reddy, male, aged 42 years, Business, r/o.46-13-26/1, Danavaipeta, Rajahmundry, East Godavari District.

2. Smt. Nallimilli Rajeswari, W/o. Srinivasa Reddy, female, aged 38 years, r/o.46-13-26/1, Danavaipeta, Rajahmundry, East Godavari District.

... DEFENDANTS

This suit coming on 13-08-2024, for hearing before me, in the presence of Sri M.R.V.Subba Rao, Learned Advocate for the Plaintiff and Sri K.Mani Kumar, Learned Advocate for the Defendants and upon hearing the Arguments on both sides and upon perusing the entire material available on record; this Court has delivered the following:

J U D G M E N T

This is a Suit filed for recovery of Rs.9,18,600/-[Rupees Nine Lakhs Eighteen Thousand Six Hundred] being the amount due under the Suit Promissory Note dated 01-04-2010 for Rs.6,00,000/- [Rupees Six Lakhs only] together with subsequent interest and for costs of the Suit.

I. Averments of the Plaint, in brief, are as follows:

[a] The Plaintiff avers that on 01-04-2010, the Defendants who are husband and wife jointly borrowed an amount of Rs.6,00,000/- (Rupees Six Lakhs only) for the purpose of their business and on consideration of the same they have executed the suit pro-note by agreeing to repay the same @ 18% per annum either to him (or) to his order on demand.

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O.S.No.72 of 2013 SCJ, TPG, WG

[b]Thereafter, in spite of repeated demands made by the Plaintiff personally and through mediators, the Defendants did not choose to discharge the debt due under the Promissory Note and postponing the same on some pretext [or] other. On 08-03-2013, the Plaintiff got issued legal notice demanding the

Defendants to discharge the debt due under the Promissory Note but in vain.

Hence, the suit.

II. On appearance, the DefendantS filed their Written statement with

following contentions:

[a]These Defendants by denying the plaint averments contends that suit promissory note is a fabricated document that brought into existence by suppressing the material facts and in collusion with Karri Sekhara Reddy of

Rajahmundry who is the main person against the entire litigation.

[b]The said Karri Sekhara Reddy is brother in law to Plaintiff and even the

Plaintiff is brother in law to 1st Defendant’s brother Nallimilli Ramareddy. While so, the said Sekhara Reddy and Nallimilli Madhusudhana Reddy are partners and close friends. The 1st Defendant admittedly did business with Plaintiff at that time borrowed money from Sekhara Reddy in 1999, at that time they both gave blank signed promissory notes, blank cheques, blank papers duly stamped but thereafter he stopped doing business with Plaintiff due to some disputes.

[c]Also contends that in the course of time, said Sekhara Reddy filed a cheque bounce case vide C.C.No.882/2000 in the name of Nallimilli

Madhusudhana Reddy on the file of Learned III AJFCM, Rajahmundry and thereafter, the said case was settled in Lok Adalat on 23-08-2003, at that time, the group headed by Sekhara Reddy promised that they will return all blank signed promissory notes, cheques and blank signed papers obtained in the year 1999 but thereafter, they stated that they were misplaced and these Defendants believed their version and having assurance did not take any other steps but after lapse of 12 [or] 13 years, they present the said empty signed documents to gain wrongfully from these Defendants and also got misused empty signed cheque of 2nd

Defendant by crediting in the bank account of Plaintiff.

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O.S.No.72 of 2013 SCJ, TPG, WG

[d]Further contends that by mere observation of writings, age of ink, age of paper and stamp, itself indicates that it is of more than 12 years document and not executed on the date which it appears and thus the promissory note is a fabricated document that brought into existence in collusion with attestors and scribe who are the relatives and henchmen of Plaintiff.

[e]Furthermore, avers that the bank account of 2nd Defendant was closed long back itself and the branch was also computerised and the account number of 2nd Defendant also changed from three[3] digits to eleven [11]digits and the format of cheques also changed and the serial number of the cheques which are 969670 subject matter cheque in C.C.No.882/2000 and Cheque No.969667 subject matter cheque in C.C.No.285/2013 on the file of Learned Judicial Magistrate of First Class,

Tadepalligudem showing that Sekhara Reddy and his group pressed into service the available blank cheques pertains to the year 1999.

[f] Even the said Sekhara Reddy filed another suit in O.S.No.77/2014 on the file of Senior Civil Judge, Tanuku in the name of his another brother in law by name

Dwarampudi Suryanarayana Reddy who is also relative to the plaintiff in this case and these Defendants strongly believe that the said Sekhara Reddy is the person behind filing the present suit to gain wrongfully from the Defendants. With the said averments prayed to dismiss the suit. Hence, the Written Statement.

III: On scrutiny of the Pleadings in Plaint and Written Statement my learned

predecessor in office has framed the following ISSUES for TRIAL :

1.Whether the suit Promissory Note is true, valid and binding on the Defendant or not?

2.Whether the suit Promissory Note is forged and fabricated document as pleaded by the Defendant?

3.Whether the Plaintiff is entitled for suit claim as prayed for?

4. To what relief?

IV. During the course of Trial the plaintiff himself examined as PW.1, got examined one of the attesters and scribe of Ex.A1 suit Promissory Note as PW’s 2 and 3 and got marked Exs.A1 to A3 towards documentary evidence.

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O.S.No.72 of 2013 SCJ, TPG, WG

[b] Whereas, the 2ndDefendant herself examined as DW.1, got examined

DW2 towards oral evidence and got marked Exs.B1 to B13 towards documentary evidence.

V.Heard both sides.

VI. ISSUES I TO III:

NOTE: Being the said Issues I to III are interlinked and interrelated to each other, they are all taken up together for the purpose of discussion and for brevity and to avoid repetition being the said points are based upon a common material aspect and the documentary evidence.

1. It is the contention of learned counsel for the Plaintiff that the consistent evidence of PWs1 to 3, coupled with Ex.A1 further the admissions of DW1 about the signatures of her and 1st Defendant clearly and categorically probablising the case of PW1 about execution of Ex.A1 and no improbability is elicited to doubt the veracity of PWs1 to 3 and non-existence of debt and there is no dispute as to solvency of PW1 and that execution of Ex.A1 is duly proved and sufficiently establishes that Ex.A1 is supported by consideration and the entire defence plea that the present suit and other criminal cases that referred in the defence contentions are at the instance of one Karri Sekhara Reddy is not probablised in any manner and even the alleged family disputes between Nallimilli Rama Reddy, who is brother in law of PW1, with 1st Defendant and another brother is also not probablised and that the evidence of DW2 is also clearly proving that there is no existence of such family disputes itself improbablising the defence pleas which are brought on to record beyond pleadings and that Exs.B1 to B13 are no way relating to the suit proceedings and not placing any contra evidence to disprove the evidence of PWs1 to 3. And in the said circumstances, Section 118 presumption favours the case of PW1 in which DW1 fails to dispel the said presumption. Further by relying on Ruling reported in 2009[2] LS 110 [SC] argues that the Criminal Court judgments and orders are not binding on the Civil Court, hence, the findings in

Ex.B9 to B11 is no way binding on this Court and they are irrelevant. With these contentions, prayed to decree the suit.

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O.S.No.72 of 2013 SCJ, TPG, WG

2.In contra, the contention of the learned defence counsel is that Exs.B1 to B13 probablising the defence contentions as to existing family disputes among

D1 and his brothers and argues that as this 1st Defendant and their another brother

Nallimilli Satyanarayana Reddy refused to give share in the business after partition of properties in the family, in order to settle such family disputes, at the instance of

Karri Sekhara Reddy, who is brother in law to Plaintiff herein, brought into existence of present suit and other criminal cases that appearing in Exs.B9 to B11 by misusing empty signed cheques and Promissory Notes that are given to Sekhar

Reddy in the year 1999, hence, the face value of Ex.A1 paper used for drafting

Promissory Note contents itself shows it is of old paper aged more than 12 years since it is not drafted and executed on the date mentioned therein and it is a fabricated document and also argued that the admitted evidence of PW1 itself shows that she has no solvency to provide Rs.6,00,000/- [Rupees Six Lakhs only] and even does not have any evidence to prove that the said debt amount is his own money out of savings from cultivation and also includes the savings of his mother as testified by him. When there is no proper evidence as to financial source of

Defendant, as per the legal principle held in Basalingappa Vs. Mudibasappa 2019[3]

ALT 62 [SC], K. Venkata Krishna Prasad Vs. Peram Sai Swaroopa 2017[1] ALT Crl

259, M.S. Narayana Menon @ Mani Vs. State of Kerala and another 2007[1] ALT [Crl]

103 [SC], Krishna Janardhan Bhat Vs. Dattatreya G. Hedge 2008[2] ALT [Crl] 170m

[SC], R. Chennakesava Rao, Hyderabad Vs. P. Laxmi Narasaiah, Hyderabad and

another,2017[2] ALT [Crl] 279 [AP], the existence of debt cannot be believed.

Hence, by considering the overall evidence in the case, the suit may be dismissed with costs

3. In the back ground of said contentions forwarded for Plaintiff and other material on record, before appreciating the oral and documentary placed on either, it is just and necessary to refer the settled principles of law as to proof of execution of a document and law of presumption under section 118 of the Negotiable

Instruments Act.

[a] In Visvonata Raghunath Audi Vs Mariano Cola co., and another

reported in AIR 1976 GOA, DAMAN & DIU 60; 5

O.S.No.72 of 2013 SCJ, TPG, WG

Para 5 of the above said judgment held as under:- "5. The initial question for consideration is whether the respondents executed the Bill of Exchange filed by the plaintiff/appellant. Learned counsel for the appellant argued that under Section 118of the Negotiable Instruments Act, the learned lower Court ought to have presumed that the document was made or drawn for consideration. It is true that there is presumption attached to a negotiable instrument. But before this presumption can be drawn, execution of the instrument must be admitted or proved. There is no presumption about execution of a negotiable instrument and in case of a denial by the opposite side the party basing its claim on such instrument must fully prove its execution.

[b] In the decision reported in (1976) 2 M.L.J 191-H.M.Kari Gowder v.

S.A.K. Shinnathambi Chettiar and others “No doubt, special rules of evidence are provided for under the Negotiable Instruments ActSec.118says that until the contrary is proved, inter alia the presumption that every negotiable instrument was made or drawn for consideration shall be drawn.

But such a presumption may sometimes be displaced by certain acceptable materials placed by the maker of the note under circumstances shifting the burden of proof from the maker to the payee. The presumption that could be raised under Section 118 is only a prima facie presumption. If the maker of the note satisfies the conscience of the court that at no time consideration passed under the negotiable instrument and that he executed it under certain circumstances which are not far from truth, then the ordinary presumption that consideration is to be presumed will not arise. As a matter of fact, the maker of the note or the defendant in an action on a promissory note may also rely upon circumstantial evidence and if those circumstances are compelling, the burden would likewise shift again to the payee or the plaintiff to establish the existence of consideration or at least its probability.

[c] In a Full Bench decision rendered by the Andhra Pradesh High Court reported in G.Vasu Vs. Syed Yaseen Sifuddin Quadri… (187) 1 L.T.1, their

Lordships followed the decision reported in Narasamma V. Veeraraju, A.I.R.

1935 Mad, 769, and, after an elaborate enquiry, their Lordships held 6

O.S.No.72 of 2013 SCJ, TPG, WG

thus:“Where in a suit on a promissory note, the case of the defendant as to the circumstance under which the promissory note was executed is not accepted, it is open to the defendant to prove that the case set up by the plaintiff on the basis of the recitals in the promissory note, or the case set up in suit notice or in the plaint is not true and rebut the presumption under

Section 118 by showing preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever. The words ‘until the contrary is proves’ in

Sec.118 do not mean that the defendant must necessarily show that the document is not supported by any form of consideration but the defendant has the option to ask the court to consider the non-existence of consideration so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that consideration did not exist.

[d] In Bollam Sambha Sivaiah Vs Bachu Siva Prasad and another(2014 Lawsuit (A P) 110) held that It is a settled principle of law that once the execution of promissory note is established by the plaintiff the onus shifts on the defendant to establish that the suit promissory note is not supported by consideration [or] he discharged the suit amount.

[e] In 2002(3) ALT 754 Ramnivas Guptha and others Vs Maliram

Held that :When execution is denied by other party mere proof of signature of the executant not sufficient. Person relying upon such document must further establish that executant affixed his/her signature after knowing the contents thereof .

[f] Bommak Narasinga Rao and another Vs State of Telangana (Rep by

Principal Secretary, Revenue Department and others ( 2015(4)ALT 285 )At Para

31” held that “ While there can be no dispute that the law with respect to burden of proof, i.e., legal burden in cases of allegations of fabrication and forgery of document lies on the person who alleges so, the crucial aspect on this issue is also well settled that there lies an initial onus on the party who relies on the document to prove its truth, validity and binding nature. Only after discharge of such onus, the onus shifts to the other party who alleges fabrication and forgery to prove his stand.

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O.S.No.72 of 2013 SCJ, TPG, WG

[g] Recently, in Sri Jami Venkata Rao vs Sri Pydisetti Ramam dated 24.03.2020

In a suit based on a promissory note, the burden is on the plaintiff to establish its due execution and validity when if the defence is denied of its execution. [h] K. Arun Kumar Vs R. Murthy ( Hon’ble Madras High Court On 22-03- 2017)Where in it is held that when once execution is proved the non production of evidence as to source of income and non disclosure of the debt in Income tax returns does not be a ground to rebut the presumption available to Section 118 of the Act . From the said precedential guidance, it is to be understood that when defendant denied execution of document it is the initial burden of Plaintiff to prove the execution of document by debtor only along with the knowledge of debtor about the contents of the said document. When once the execution is proved by Pw-1 by his impeccable and unshaken evidence and he discharged his burden on the material aspects of execution of Ex-A1 and A2 and passing of consideration thereof, Section 118 of Negotiable Act presumption favours the case of Pw-1 in such a case, it is for defence to dispel the said presumption by impeaching the credibility of witness either with available direct evidence, [or] material placed by plaintiff [or] by circumstantial evidence as well and to prove that there is no existence of such a debt and the Plaintiff has no such capacity.

4.Coming back to the instant case facts and circumstances, in order to substantiate the case of Plaintiff as to factum of execution of Ex.A1 and passing of consideration of Rs.6,00,000/- to DW1 and 1st Defendant, at the outset, the Plaintiff himself adduced his evidence as PW1 by reiterating the plaint averments about lending Rs.6,00,000/- [Rupees Six Lakhs only] to both Defendants for their business purpose and to corroborate his evidence, he also examined PWs2 and 3, who are the scribe and attestors of Ex.A1, in which, PWs2 and 3 in their evidence reiterated the plaint averments as to execution of Ex.A1 by both Defendants after receiving the consideration amount of Rs.6,00,000/- [Rupees Six Lakhs only] from

PW1.

[b]In the present case, there is no dispute as to the signatures of DW1 that are appearing under Exs.A1 and even during evidence, DW1 has categorically admitted the signature of herself and 1st Defendant on Ex.A1, hence, when once 8

O.S.No.72 of 2013 SCJ, TPG, WG

signature on Ex.A1 is undisputed, then the onus shifts to DW1 to prove under what circumstances, the said Ex.A1 is lying under the custody of PW1 or any other person as alleged by them.

[c]It is the defence contention that Ex.A1 is one that belong to year of 1999, admittedly given to Karri Sekhar Reddy while borrowing money from him and thereafter, a settlement was arrived by the group headed by Karri Sekhar Reddy and even the debt was cleared at that time, the said Karri Sekhar Reddy assured to return the said empty signed promissory notes, cheques and papers but thereafter stated as misplaced but having assurance on him, they does not bothered about such documents.

[d] In the course of time, due to the disputes arose with PW1 in the business transactions between 1st Defendant and PW1, being this PW1 is brother in law to Sekhar Reddy, designedly brought into existence of Ex.A1 that is lying in the custody of Karri Sekhar Reddy besides, also lodged Criminal Prosecution against the Defendants as appearing in Exs.B2 and B9 by using Ex.B1 and Ex.B7 cheques, despite, the five digit cheques are not in force by the time of lodging criminal prosecution under Ex.B2 and Ex.B9. However, under Ex.B10, Ex.B9 criminal case is settled in Lok Adalat and under Ex.B11, the judgment made in

C.C.No.129/2017 with respect to cheque bearing No.969667/Ex.B1 which is alleged to have given with respect to payment of Ex.A1 debt, is ended in acquittal, which probablising the case of defence. Also contends that Exs.B4 to B6 and the oral evidence of DW1 and 2 also probablising the property issues that are settled among 1st Defendant and his brothers by partitioning the properties after filing of the present suit and the said circumstances itself probablising the case of defence that the present suit is outcome of said settled family disputes at the instance of Karri

Sekhar Reddy who is actual person behind the entire litigation and the said circumstances itself non-existence of debt under Ex.A1 and also no evidence to prove that this PW1 has shown the suit debt amount in Income Tax Returns and also includes the Savings Amount of Rs.1,50,000/- [Rupees One Lakh Fifty

Thousand only] of his mother. Hence, by considering the overall evidence placed on the record, the suit may be dismissed with costs.

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O.S.No.72 of 2013 SCJ, TPG, WG

5. While testing their evidence, the learned Defence Counsel in order to probablise the defence contentions in the cross examination of PW1 made many attempts to discredit his evidence by eliciting about his business turnover, maintenance of accounts, occupation of Defendants, relationship with Defendants, his relationship with Karri Sekhar Reddy, the property details of Defendants given by his father in law/DW2 and the share allotted to his sister, who is co-sister to DW1 and about execution of Exs.B4 to B6 and his knowledge about Ex.B2 filed by

Nallimilli Madhusudhana Reddy against DW1 and his knowledge about change in digits used in cheque numbers by Banking Authorities, his acquaintance with attestors and scribe, his solvency in providing debt of Rs.6,00,000/- [Rupees Six

Lakhs only] and reason for non-obtaining any security document from both

Defendants. Additionally, he made suggestions with respect to securing Ex.A1 document paper, affixing stamp on it and reason for not obtaining on printed promissory note.

6.To which, the overall evidence of PW1 indicating that the co-sister of

DW1 is his own sister and he is brother in law to 1stDefendant’s brother Nallimilli

Rama Reddy, Whereas, with respect to linking the property disputes with Ex.A1 transaction is concerned, PW1 has totally denied the same and even he denied that

Ex.A1 transaction is brought into existence at the active connivance with Sekhar

Reddy, who is his brother in law, merely to settle the property disputes which are appearing under Exs.B5 and B6.

[b] Further, his replies also indicates that there is no specific reason for not obtaining Ex.A1 on printed promissory note but he admitted that Ex.A1 is appearing as old as five or six years back paper and to which he replied, he unable to recollect whether he is in practice of obtaining promissory note on Conquest paper and even he could not say the nature of Ex.A1 paper and he affixed the stamps available with him that are used for his Lorry Transport Business Vouchers.

7.With respect to submission of Income Tax Returns is concerned, during his cross examination held on 09-02-2018, he stated that he is not Income Tax

Assessee and even his business does not come under the purview of Income Tax.

But, whereas, while eliciting about his solvency while testifying that he did not 10

O.S.No.72 of 2013 SCJ, TPG, WG

withdraw that amount from any bank, further reply that out of sale proceeds of paddy and his business profits, he accrued Rs.2,25,000/- [Rupees Two Lakhs

Twenty Five Thousand only] besides that Rs.1,50,000/- [Rupees One Lakh Fifty

Thousand only] is taken from his mother which is her savings account and he reflected the said Rs.2,25,000/- [Rupees Two Lakhs Twenty Five Thousand only] in his Income Tax Returns of the relevant year and he will produce the same if required and further replied that he sold paddy to Tatayya Pandu but has no documentary proof and even to show the said Rs.1,50,000/- [Rupees One Lakh

Fifty Thousand only] is Savings Amount of his mother.

8.And he denied the suggestions that are made to him about doing money lending business with Nallimilli Madhusudhana Reddy, Karri Sekhar Reddy and Nallimilli Rama Reddy and also denied that he got fabricated Ex.A1 with the promissory note paper available with Nallimilli Madhusudhana Reddy pertaining to the year of 2000 and even the stamp affixed on Ex.A1 is prior to the year of 2000.

9.From the said overall evidence of PW1, it is appearing that despite the defence has taken multiple defence contentions with respect to circumstances surrounding Ex.A1 execution, primarily, all his defence contentions are inconsistent one to each other where there is no one specific stand to the defence to elicit the circumstances under which Ex.A1 is in the custody of PW1. In the Written

Statement, their contention is that Ex.A1 is a promissory note paper pertains to the year of 1999 and given to Karri Sekhar Reddy while admittedly receiving debt from him. Whereas, while conducting cross examination of PW1, it is suggested to him that Ex.A1 is a promissory note paper available with Nallimilli Madhusudhana

Reddy who is complainant in Ex.B2 cheque bounce case vide C.C.No.730/2016 and all together differently the evidence of DW1 is that in order to settle the property disputes in their family and after execution of Exs.B4 to B6 in favour of herself and her co-sister, even then their brother in law Nallimilli Rama Reddy requested 1st

Defendant and their another brother Satyanarayana Reddy to give share in their cloth business also but they refused for the same, at the instance of Karri Sekhar

Reddy all the litigation that appearing under Ex.B2, B9 and present suit are brought into existence. But, the admitted evidence of DW2 who is father of 1st Defendant 11

O.S.No.72 of 2013 SCJ, TPG, WG

and father in law to DW2 indicates that there are no such kind of family disputes by the time of Ex.B4 to B6, in which, the said oral evidence of DW2 not only proving non-existence of family disputes and the said evidence of DW2 further disclosing that their son Nallimilli Rama Reddy died about 7 [or] 8 years back in which the said circumstances not only improbablising the defence contentions taken by DW1 but also disproving the entire pleadings of DW1 since if factually the reason for filing of the present suit and other cases are for providing share to Nallimilli Rama Reddy in the business Defendants and Satyanarayana Reddy being the said Rama Reddy is no more, the cause of action does not sustain and the fact alleged by her is improbable since the person at whose instance alleged litigation is commence, died. Moreover, the asserted fact of having custody of Ex.A1 with Nallimilli

Madhusudhana Reddy and the another alleged fact of fabricating Ex.A1 due to refusal of share to Nallimilli Rama Reddy is not at all pleaded in the Written

Statement and the said two facts are beyond pleadings which does not sustain under law and that to prove the said facts, even adducing evidence of DW2 is merely a fish out of water, which in no manner supports the case of DW1.

10.Further, admittedly, when PW1 has sent Ex.A2 to DW1 and 1st

Defendant though it is within their knowledge, no reply is sent by them by taking the present defence contentions. However, mere non-sending reply is not admission of the case but it shows their bona-fides and aids to the setbacks. The admitted evidence of DW1 shows that when Karri Sekhar Reddy and others did not return their empty signed promissory notes, cheques and papers even after settlement and even represented that they were misplace and allegedly used after 12 years, no legal action is taken against Karri Sekhar Reddy[or]against Nallimilli

Madhusudhana Reddy[or]even against PW1 till this day even it is alleged that

Ex.A1 promissory note paper pertains to the year 1999 [or]2000 for that no reason is mentioned by DW1 in which her omissions and dormant nature puts her into peril and improbablising her defence contentions. In the said circumstances when a person persistently misusing the valuable documents any ordinary person reacts and attempts to take legal action but usually no one remains silent for years 12

O.S.No.72 of 2013 SCJ, TPG, WG

together , if remained silent indicates adverse inference against their dormant nature and conduct .

11. In the said circumstances it is redolent to refer the legal principle held in V.Surya Rao v.G. Gopala Krishna reported in 1999 (4) ALT 480, wherein, the learned Single Judge held as follows:

"Two types of cases may arise-one where there is a denial as to the execution and pleading forgery and two, while admitting the instrument explain the circumstances.

Therefore, subject to proving otherwise, the presumptions follow in both the matters with variation. Normally, one comes across with both the plea of total denial and then with some explanation by way of defence, which run totally contradictory. Though a defendant is entitled to raise contradictory pleadings in defence, however, the same vary from case to case. Especially, in the case of negotiable instruments, such pleas have to be strictly scrutinized in a proper perspective within the limitations prescribed under the law and should not allow the defendant to go scot free with unsustained pleas.

Therefore, to restrict the enquiry, the law contemplates such presumption and once the instrument is proved, all presumptions follow. Shifting the burden apart, it certainly casts doubts on the bona fides in respect of pleas like denying the very note on the plea of forgery and then coming out with some explanation. In such cases, if due execution of the instrument once proved the presumption operates with more vigour and it should shut out the explanation sought to be given. The enquiry into a plea of forgery is a comprehensive one, calling for detailed evidence and material on either side and such plea of forgery even constitutes a serious offence under the provisions of the Indian Penal Code. Therefore, the conduct of the parties prior to the suit and their silence goes a long way in considering the said plea. Claims based on forged promissory notes cannot be ruled out. However, either way, the instrument and the evidence thereon requires to be considered in its proper perspective and in the circumstances of each case. Thus, looking from the principles as laid down, the presumption automatically follows that once the execution is proved and especially in the case where the plea of total denial of execution and forgery has been negatived, the necessity to go into the circumstances or the theories or the story as sought to be explained by the defendant becomes very circumspective and narrow “.

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O.S.No.72 of 2013 SCJ, TPG, WG

12.Further, mere filing of the earlier litigation that taken place as covered under Exs.B1 to B3, B7 to B13 which includes the subject matter cheques, cheque return memos, her bank statement copy and the complaint copies and the entire criminal proceedings of C.C.No.730/2016 and C.C.No.882/2000 is concerned as per Section 43 of Indian Evidence Act, the findings given by the Criminal Court does not bind on the Civil Court. Hence, the result in Ex.B10 and B11 no manner binds on this Civil Court for giving finding on any fact since the proceedings are independent in nature. Hence, as per Section 43 of Indian Evidence Act and the legal principle 2009[2] LS 110 [SC] between Syed Askari Hadi Ali Augustine Imam and another Vs. State [Delhi Admn] and anotherrelied by the learned Plaintiff counsel, this Court opines that the findings in Criminal Cases in no manner binding on the Civil Court and they are not conclusive proof .

13.With respect to the solvency is concerned, the evidence of PW1 coupled with evidence of PWs2 and 3, is consistently proving execution of Ex.A1 besides the evidence of DW1 failing to probablise her defence contentions, in which case, Section 118 presumption favours the case of PW1. Though, the learned

Defence Counsel to some extent able to elicit that there is no documentary proof as to providing Rs.6,00,000/- [Rupees Six Lakhs only] to DW1 as he has not filed

Income Tax Returns of the relevant time in which it has reflected his business amount of Rs.2,25,000/- [Rupees Two Lakhs Twenty Five Thousand only] and

Savings amount of Rs.1,50,000/- [Rupees One Lakh Fifty Thousand only] of his mother being the oral evidence of PWs1 to 3 is consistent and execution of Ex.A1 is proved, mere non-filing of Income Tax Returns in no manner adversely affect the case of PW1 as held in Legal principle. Here it is pertinent to refer the ruling touching core aspect of said facts to reach just conclusion.

[b] In K. Arun Kumar Vs R. Murthy ( Hon’ble Madras High Court On 22-03-2017)

Where in it is held that when once execution is proved the non production of evidence as to source of income and non disclosure of the debt in Income tax returns does not be a ground to rebut the presumption available to Section 118 of the Act. Shrimati Ragini

Gupta Vs. Piyush Dutt Sharma decided on 07-03-2019 by the Honourable High Court of

Madhya Pradesh in [CRR 5263/2018] 2019[3] DCR 358 it is held that "Non-filing of Income 14

O.S.No.72 of 2013 SCJ, TPG, WG

Tax Return would not automatically dislodge the source of income of the complainant.

non-payment of Income Tax is a matter between the revenue and the assessed. If the

Assessee has not disclosed his Income in the Income Tax Return, then the Income Tax

Department is well within its rights to reopen the assessment of income of the assessee and to take action as per the provisions of income Tax Act. however, non-filing of Income

Tax Return by itself would not mean that the complainant had no source of income and thus, no adverse inference can be drawn in this regard only because of absence of Income

Tax Return. Whether there was any loan transaction between the parties or not and whether there was any legally recoverable debt or not, is the subject matter which can be ascertained in the light of entire case led by the parties."

14.In the instant case as observed by this court there is no consistent evidence for defence and due execution is proved and unable to dispel section 118 of the Act presumption hence, this court opines that mere non production of income source and non filing of income tax returns does not adversely affect the case of Pw-1 when evidence placed by him is cogent and clear .

Hence, in the said circumstances this court with due respect to higher courts opines that the rulings relied by learned defence counsel is not applicable to present suit proved facts and circumstances hence, not applied.

15.In the said discussed circumstances, this court opines that as per rulings held in Bollam Sambha Sivaiah, Jami Venkata Rao ,V.Surya Rao and

K.Arun Kumar’s case mentioned supra when once PW.1 has proved that Ex.A.1 is a genuine document Section 118 presumption applicable to Pw-1 case in which the onus lies on DW.1 to prove that the case of PW.1 is in correct but, as assessed above DW.1 except making suggestions to Pws.1 to 3 failed to improbablise the oral evidence of Pws.1 to 3 and factum of execution of Ex-A1 and receiving the debt from PW-1 by both defendants .

16. To conclude in the case this court opines that from the overall discussion it is sufficiently probablize by plaintiff that Ex.A.1 is a true, valid document and binding on the defendant that making him liable to pay the suit debt with interest .

VI. ISSUE No.IV 15

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17. In view of the said discussion, this court opines that the plaintiff is entitled to recover the suit amount of Rs.9,18,600/-[Rupees Nine Lakhs Eighteen

Thousand Six Hundred only]from Dw-1.

18. In the result , SUIT is decreed with costs in which, the defendants 1 and 2 are jointly and severally liable to pay a sum of Rs.9,18,600/- [Rupees Nine

Lakhs Eighteen Thousand Six Hundred only] together with subsequent interest at the rate of 6% per annum from the date of suit till date of realisation on the principal sum of Rs.6,00,000/- [Rupees Six Lakhs only].

All the issues answered accordingly.

Typed to mydictation by the Stenographer Gr.I,corrected and pronounced by me in the open Court, on this the 6 th day of September, 2024.

SD/- K. MADHAVI

CIVIL JUDGE [SENIOR DIVISION],

TADEPALLIGUDEM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF FOR DEFENDANT

PW1 M.Ch.M. Venkata Reddy DW1 Nallimilli Rajeswari

PW2 Verrubandi Gangadhara Rao DW2 Nallimilli Munireddy

PW3 Atyam Viswanadham

EXHIBITS MARKED:

Ex.A1 01-04-2010 Original Promissory Note executed by the Defendants in favour of the Plaintiff for Rs.6,00,000/- [Rupees Six Lakhs only]. Ex.A2 08-03-2013 Office Copy of Legal Notice. Ex.A3 - Postal Receipts [Two in number].

FOR DEFENDANT:

Ex.B1 - Certified copy of cheque bearing No.969667. Ex.B2 - Certified copy of Complaint in C.C.No.730/2016 on the file of Principal Junior Civil Judge's Court, Tadepalligudem. Ex.B3 - Certified copy of Cheque Return Memo of State 16

O.S.No.72 of 2013 SCJ, TPG, WG

Bank of Hyderabad, Rajahmundry. Ex.B4 03-01-2013 Certified copy of Registered Settlement Deed executed in favour of 2nd Defendant by Nallimilli Muni Reddy. Ex.B5 28-02-2013 Certified copy of Registered Settlement Deed executed in favour of Nallimilli Jayasree Naga Lakshmi by Nallimilli Muni Reddy. Ex.B6 30-03-2013 Certified copy of Registered Settlement Deed executed in favour of Nallimilli Sailakshmi by Nallimilli Muni Reddy. Ex.B7 18-06-2000 Certified copy of Cheque Bearing No.9696970 of State Bank of Hyderabad, Rajahmundry issued in favour of Nallimilli Madhusudhana Reddy by 2nd Defendant. Ex.B8 23-06-2000 Certified copy of Cheque Return Memo issued by State Bank of Hyderabad, Rajahmundry. Ex.B9 - Certified copy of Complaint in C.C.no.882/2000 on the file of 3rd Additional Judicial Magistrate of I Class, Rajahmundry. Ex.B10 23-08-2003 Certified Copy of Award passed by Lok Adalat in C.C.No.882/2000. Ex.B11 30-11-2023 Certified copy of judgment in C.C.No.129/2017. Ex.B12 06-01-2023 True copy of Bank Statement of 2nd Defendant for the period from 01-08-2006 to 31-10-2006. Ex.B13 01-03-2013 True copy of receipt with respect to deposit of Cheque bearing No.969667.

ILD/-KM CJ [SD] TPG

TRUE COPY

PART – I

OS.No.72 of 2013

Date: 06-09-2024

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