Sri.K.Venkateshwarlu

IN THE COURT OF XI ADDL. DIST. JUDGE (FTC), R.R.DISTRICT

PRESENT: SRI VENKATESWARLU. K

XI ADDL .DIST JUDGE, (FTC),

AT L.B.NAGAR, R.R.DISTRICT

Thursday the 15thday of September 2015.

O.S. No.583 of 2007

Between: M.Jayamma W/o. M.Narsimha Reddy D/o. Late S.Chandra reddy aged 36 years

R/o.Thukkuguda village, Maheswaram Mandal, R.R.Dist. ...Plaintiff

A n d

1.Syrasabu Laxmamma W/o.Late Chandra Reddy (died as per L.R i.e., plaintiff, defendants Nos.2, 7 and 8) 2.S.Madhava Reddy S/o. Late S.Chandra Reddy aged 40 years R/o.H.No.1-36, Kandukur Village, Maheshwaram(M), R.R.Dist. 3.S.Swaroopa W/o. Madhava Reddy aged 34 years R/o.H.No.1-36, Kandukur Village, Maheshwaram(M), R.R.Dist. 4.S.Swapna D/o. S.Madhava Reddy aged 20 years R/o.H.No.1-36, Kandukur Village, Maheshwaram(M), R.R.Dist. 5.S.Swathi D/o. Madhava Reddy aged 18 years R/o.H.No.1-36, Kandukur Village, Maheshwaram(M), R.R.Dist. 6.M/s.Sri Pragna Realtors Pvt.Ltd rep. By its MD Sri Paruchuri Srikanth S/o. Ravindranath Tagore, aged 35 years R/o. Flat No.301, Jaya Enclave, Panjagutta, Hyderabad. 7.B.Padmamma W/o. Raghuma reddy D/o. Late S.Chandra Reddy aged 42 years R/o. Gungal village, Ibrahimpatnam Mdl, R.R.Dist. 8.A.Indiramma W/o. A.Nagi reddy D/o. Late S.Chandra reddy aged 38 years R/o. Plot

No.45, Police line, Sec. .....Defendants

This suit coming before me on 22-9-205 in the presence of Sri.T.Ashok Reddy Advocate for the plaintiff and Sri.S.V.Reddy , Advocate for D2 to D5 and Sri.P.Subba Rao Advocate for D6, D7 and D8 having remained exparte, D1 died and upon perusal of the material papers on record having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1. This suit was originally filed by plaintiff, D7 and D8 jointly. Subsequently, D7 and

D8, who are original plaintiffs 1 and 2, compromised with D2 and relinquished their right over suit schedule in favour of D2. Later original plaintiffs No.1 and 2 were transposed as D7 and D8. 3rd plaintiff alone remained as plaintiff now. For the purpose of convenience the parties are referred to as they stand now as mentioned in the cause title. Suit is filed for partition of suit schedule in to 4 equal shares. Admitted facts of 2 the case are plaintiff, D2, D7 and D8 are children of late S.Chandra Reddy. It is also an admitted fact that suit schedule is ancestral property of Chandra Reddy and he died a long prior filing of the suit. Plaintiff, D7 and D8 got married along back and they have been residing at their respective husbands' houses away from there parents house. Suit schedule consists of Ac.7.14 guntas in S.No.297. D1, who is wife of Chandra Reddy, died during pendency of suit. Since all her children are in record none others are added after death. D3 to D5 are children of D2. D6 is 3rd party to the family who purchased

Ac.2.00 out of suit schedule under registered sale deed executed by D1 to D5 before filing of the suit.

2. The case of the plaintiff is that originally her father Chandra Reddy got suit schedule to his share in partition with his two brothers, that Chandra Reddy cultivated the suit schedule during his lifetime, that he performed marriages of plaintiff, D7 and

D8, that due to poverty at that time he could not give anything to the daughters, but he promised to give them share in the suit schedule, that 10 years before filing of the suit

Chandra Reddy died, as such plaintiff, D2, D7 and D8 are entitled to equal shares in the suit schedule, that from the time of death of Chandra Reddy, D2 has been attending to cultivation, that plaintiff came to know that D1 got his name mutated in revenue records in respect of suit schedule, then she along with D7 and D8 questioned D2 but he did not give proper answer and refused to partition the suit schedule, that plaintiff came to know about sale deeds executed by D1 to D5 in favour of D6, that those sale deeds are result collusion between D1 to D6, that they are not binding on the plaintiff, that she is entitled to ¼ share.

3. D2 filed written statement, which is adopted by D2 to D5 pleading, that Chandra

Reddy got Ac.2.27 guntas in S.No.293 and Ac.1.10 guntas in S.No.161 besides suit schedule, that at the time of marriages of D7 land in S.No.293 was sold and sale consideration was used to purchase jewellery and expenses at the time of marriage of

D7, that by selling land in S.No.161 Chandra reddy performed marriages of plaintiff and D8, that as the sale proceedings of that land was not sufficient he also mortgaged about Ac.5.00 in the suit schedule to one M.Lakshmaiah and borrowed money for purchase of gold, jewellery, as such sisters of D2 got more than their share in the family property, so the suit schedule was given to D2 and his father executed will on 10-6-84 bequeathing suit schedule to him, subsequently D2 redeemed the mortgage, thereafter 3 he sold some land to D6 under registered sale deeds, that plaintiff and other sisters of

D2 are not in joint possession and enjoyment of suit schedule, as such court fee paid

U/S.34(2) of A.P.C.F and S.V act is not correct.

4. D6 filed separate written statement pleading, that after making due enquiry D6 purchased Ac.2.00 of land from D1 to D5, that D6 also purchased some other land adjoining land purchased from D1 to D5 and converted total lands in to plots, that D6 is bonafide purchaser for valid consideration.

5. Based on the afore said pleadings following issues are settled for trial

(i)Whether plaintiffs are entitled to partition of suit schedule property as prayed?

(ii)Whether registered sale deed vide document no.14406/2006 dated 5-9-2006 and document no.19470/2006 dated 9-11-2006 executed by D1 to D5 and liable to be cancelled.

(iii)To what relief?

6.During the trial plaintiff alone is examined as PW1 and Ex.A1 to A10 are exhibited on her behalf. On the other hand D20 is examined as Dw1. An attestor and scribe of will executed by Chandra Reddy are examined as DWs 2 and 3 respectively.

Managing Director of D6 is examined as Dw4. A person who acted as mediator at the time of purchase of land by D6 form D1 to D5 is examined as DW5 and Exs. B1 to B19 are exhibited on behalf of defendants.

7. Heard both sides

8. Issue No.1.

In view of the admitted facts that plaintiff is sister of D2 she becomes co parcener along with D2 in respect of suit schedule property left behind by her father. Unless D2 is able to establish that his father executed Ex.B11 plaintiff is automatically entitled to share in the suit schedule. According to D2, his father had Ac.2.27 guntas in S.No.293 and Ac.1.10 guntas in S.No.161 and that all those lands were sold by his father at the time of marriages of plaintiff D7 and D8. D2 did not adduce any evidence to support the said contention except his oral evidence. D2 as Dw1 filed affidavit repeating the averments in the written statement including about said lands. In the cross examination 4 examination he admitted that there are no documents to show that his father got land in

S.No.293 and 161 towards his share in the partition with his brothers. He claimed that his father sold that land under unregistered documents and got it mutated in the names of purchasers, that his father names were never included in the revenue records for those lands and that it was sold even when it stood in the name of his father Chandra reddy. Pw1 pleaded ignorance about those lands and sale

9. Other defence of D2 is, that his father executed Ex.B11. D2 himself exhibited

Ex.B11. He further claimed that during lifetime of his father Ac.5.00 of suit schedule was mortgaged in favour of 3rd party and after death of his father he redeemed that mortgage and Ex.B12 is exhibited which is an unregistered mortgage. In the cross examination it is elicited that DW3 scribed Ex.B11 at his house. DW2, whose name is also same as father's name of D2 and another person attested it. According to DW1 he was also present at the time of execution of Ex.B11 but it was kept with D1 till some time back and later D1 gave it to him. It is elicited that name of his father was not entered in the revenue records in respect of suit schedule, but name of his paternal uncle

Narayana Reddy was there in the revenue records and after his death it was mutated in the names of sons of Narayana Reddy, that subsequently on joint application given by him and sons and Narayana reddy suit schedule was mutated in his name.

10. DW2 filed affidavit stating that he was present when father of D2 executed will on 10-6-84, that it was scribed by DW3, that he and one Devaiah attested it.In the cross examination it is elicited that in the partition suit schedule fell to share all his father and he gave it to D2 without writing any document. It is further elicited that Ex.B11 was executed at the house of DW3 who was then Surpanch, that property covered by Ex.B11 was mortgage in favour of M.Lakshmaiah.

11. Dw3 filed affidavit stating that on 10-6-84 Chandra Reddy came to his house and requested him to scribe his will in respect of suit schedule in favour of D2. Then he scribed Ex. B11 which was executd by Chandra Reddy and attested by DW2 and another. In the cross examination it is elicited that he was not informed in advance about execution of will by Chandra Reddy, that on the instructions of Chandra Reddy he scribed Ex.B11, that DW2 and Devaiah attested it, that 6 years after Ex.B11 Chandra

Reddy died. It was not even suggested to DWs 2 and 3 any motive to support the 5 contention of D2 about execution of Ex.B11. Admittedly DW3 was Ex.Surpanch by the said date who is to reckoned as one of the elders in the village. The evidence of Dws. 1 to 3 shows that Ex.B11 was exhibited by his father.

12. Learned counsel for D2 to D5 contended, that Ex.B11 is proved by D2 and D3 and it was mentioned in D11 that land in S. Nos. 293 and 161 was sold by Chandra reddy to perform the marriages of daughters. As such plaintiff is not entitled to any share in the suit schedule. On the other hand the learned counsel for the plaintiff contented, that Ex.B11 is fabricated one and it was not produced before the court when notice was given to produce it, as such it is not reliable and it should be discorded.

Learned counsel for plaintiff contented if there is no will plaintiff became entitled to ¼ share in the share of Chandra Reddy which comes to 1/8 share soon after death of

Chandra reddy and plaintiff could have claimed that share even without aid of the latest amendment of Central Government to Sec.6 of Hindu Succession Act. She got married more than 30 years back. As such she is estopped from claiming share based on the latest amendment. He further contended that as all the sisters of D2 got married prior 1984 when A.P Amendment to Hindu Succession Act came into force they were not entitled to share in the suit schedule, that only D2 and his father were entitled to half share each, that after death of his father, even if it is presumed that he died intestate D2 is entitled to 5/8th share and his 3 sisters are entitled to 1/8 share each in this suit schedule, but they did not claim share in it and there were no other co parcenors to share the property. So it is clear that D2 alone became exclusive owner of suit schedule from time of death of his father, even in the absence of any will. As such even if the latest amendment to Hindu Succession Act takes into account the property partitioned before 20-12-2004 shall not be effected by the latest amendment. He further contented that since there were none to share the property it should be deemed that the partition has taken place soon after the death of father of D2 and ever since he has been in exclusive possession and enjoyment of total suit schedule for over 20 years, as such even if will is not accepted D2 has perfected his title by adverse possession and plaintiff is estopped from claiming share in it as she never claimed any right in it after death of his father.

13. In this case plaintiff filed affidavit repeating averments in the plaint. In the cross examination, as already stated supra, she pleaded ignorance about her fatherr having land in S.No.243 and 161 and selling it to meet marriage expense of plaintiff and her 6 sisters. She also pleaded ignorance about mortgage of Ac.5.00 of land in the suit schedule. She denied the suggestion that her father executed will.

14.As already stated supra the evidence of DWs1 to 3 establishes execution of

Ex.B11 by Chandra Reddy. PW1 pleaded ignorance at about mortgage of suit schedule.

DW1 filed Ex.B12 which shows that part of suit schedule was mortgaged in favour of

M.Lakshamiah and Rs.5,000/- borrowed. It is mentioned in Ex.B12 that he borrowed money to meet marriage expenses of his daughters which is on the same lines as the plea taken by D2. The evidence on record establishes that Chandra Reddy had some more land besides suit schedule and he sold it to 3rd parties at the time of marriages of his daughters and also mortgage some extent of the suit schedule, later executed

Ex.B11. D2 deposed that he redeemed Ex.B12 mortgage which is not disputed as plaintiff pleaded ignorance about it. It clearly shows, that some of the properties were disposed of by Chandra Reddy to meet expenses of marriages of his daughters and some debts were also contacted him by more than 30 years back and all of them were discharged by D2 and for it probablises the claim of D2 that his father executed Ex.B11 in his favour. So the material on record establishes that Chandra Reddy died by executed Ex.B11, as consequence plaintiff is left with no property to seek partition and she is not entitled to seek partition of the suit schedule.

15. Learned counsel for plaintiff relied upon a decision of our High Court between

Bamalanka Ganga Reddy and others V/S. Nandipati Vijay Lakshmi and others rep o ted in 2007 (5 ) ALT 447 whether in it was observed that in view of amendment to Sec.6 of

Hindu Succession Act by Central Government, Sec.29 A of Hindu Succession Act added by amendment made by A.P state stands repealed and all the daughters of deceased becomes co parcenors unless partition was made before 28-10-2004 and contented that since suit schedule was not partitioned plaintiff is entitled to claim share in the suit schedule. As already stated supra in view of the evidence on record that Chandra Reddy died by executing Ex.B11 there was no estate left behind by him to be succeeded by his co parcenors. As such amendment to Sec-6 made by central government does not help the plaintiff.

16. Issue No.2.

Dws 4 and 5 deposed that D1 to D5 sold Ac.2 of land in suit schedule to D6. In view of 7 the finding on Issue No.1 it is clear that D2 has become absolute owner of suit schedule.

As such sale deeds executed by D1 to D5, that is originals of A8 and A9 in favour of D6 company are valid. Since the plaintiff is not entitled to seek partition of the suit schedule she cannot say that the sale deeds are not binding on her and she cannot seek cancellation of those sale deeds. Admittedly plaintiff is not party to Exs.A8 and A9 sale deeds. So she cannot seek cancellation of sale deeds and at best she can claim that they are not binding on her if she is entitled to seek partition of the suit schedule property.

The evidence on record clearly shows that D6 company purchased the said property after making due delegence and all the family members of D2 were added as co executents while obtaining sale deed. As such plea of D6 that it is bonafide purchaser for valid consideration without knowledge of any dispute is acceptable. So plaintiff is not entitled to relief of cancellation of sale deeds in favour of D6 and Issue no.2 is held in the negative.

17. Issue No.3.

In the result suit is dismissed, but considering the relationship between the parties each party is directed to bear its own costs.

Dictated to Personal Assistant transcribed by her, corrected and pronounced by me

in the open court on this the 15th day of September 2015.

XI Addl. District & Sessions Judge (FTC), Ranga Reddy District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF

Pw1:-M.Jayamma

FOR DEFENDANT

Dw1:MAdhava Reddy Dw2:S.Chandra Reddy Dw3:K.Narasimha Dw4:P.Srikanth Dw5: S.Srisailam 8

EXHIBITS MARKED

FOR PLAINTIFF

Ex.A1:True copy of pahani for the year 1970-71 Ex.A2:True copy of pahani for the year 1972-73 Ex.A3: True copy of pahani for the year 1978-79 Ex.A4: True copy of pahani for the year 1980-81 Ex.A5: True copy of pahani for the year 2000-01 Ex.A6: True copy of pahani for the year 2001-02 Ex.A7:Legal notice dated 6-3-07 Ex.A8:C.C. Of sale deed No.14406/06 dt.5-9-06 Ex.A9:C.C. Of sale deed No.19470/06 dt 9-11-06 Ex.A10:Value certificate dt.23-6-07

FOR DEFENDANT

Ex.B1:C.C. Of pahani of the year 1993-94 Ex.B2: C.C. Of pahani of the year 1994-95 Ex.B3: C.C. Of pahani of the year 1995-96 Ex.B4: C.C. Of pahani of the year 1997-98 Ex.B5: C.C. Of pahani of the year 1998-99 Ex.B6: C.C. Of pahani of the year 2000-01 Ex.B7: C.C. Of pahani of the year 2001-02 Ex.B8: C.C. Of pahani of the year 2002-03 Ex.B9: C.C. Of pahani of the year 2003-04 Ex.B10: Original Pattadhar pass book 271645 Ex.B11:Original will deed dt.10-60-84 Ex.B12:Original mortgage deed dated 22-10-1981 Ex.B13:Lr.Dis.No.719/2008 dt.28-6-2008 Ex.B14:Lr.Dis.No.721/2008 dt.28-6-2008 Ex.B15:Lr.Dis.No.726/2008 dt.28-6-2008 Ex.B16:Lr.Dis.No.724/2008 dt.28-6-2008 Ex.B17: Lr.Dis.No.728/2008 dt.28-6-2008 Ex.B18:Lr.Dis.No.731/2008 dt.28-6-2008

XI Addl. District & Sessions Judge (FTC), Ranga Reddy District. corrected

IN THE COURT OF XI ADDL. DIST. JUDGE (FTC), R.R.DISTRICT

PRESENT: SRI VENKATESWARLU. K

XI ADDL .DIST JUDGE, (FTC),

AT L.B.NAGAR, R.R.DISTRICT

Friday the 4thday of September 2015.

O.S. No.475 of 2010

Between: HMT Machine Tools Limited, praga Division, D.No.60-010, C.I.E., Gandhinagar, Balanagar, Hyderabad-500 037, Rep.by its

General Technical Manager/Unit Chief ... Plaintiff

A n d

Acme Engineers(P)Limited, No.3A & 3B, Type III, I.D.A., Kukatpally, Hyderabad, Rep.

By its Chief Executive Officer. .... Defendant

This suit coming before me on 20-8-2015 in the presence of Sri.Vidhya Sagar Advocate for the plaintiff and Sri.A.Srinivas Advocate for defendant, and upon perusal of the material papers on record having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1.This is a suit seeking for recovery of a sum of Rs.52,80,000/- towards damages for the loss caused to the plaintiff with interests and costs.

2.The case of the plaintiff is, that plaintiff issued a purchase order dated 11-5-2007 for Rs. 7,00,560/- to defendant for recondition, retrofitting of Russian Plano Milling

Machine in 3 phases and that subsequently purchaser order was amended on 25-7-2008 enhancing value to Rs.9,00,000/-, that after completion of first phase of work plaintiff paid Rs.3,03,372/-, that for the second phase of work order was passed for release of the said amount, that after collecting invoice from plaintiff company defendant abandoned the work and failed to complete the balance of work, then the bank of the plaintiff was advised not to pay the second installment of the work, thereafter there was exchange of communications between plaintiff and defendant, that plaintiff addressed letter informing the defendant about the deficiencies and failure to fulfill the contract and offered 7 days for rectification and further informed that in case of failure of defendant plaintiff will be constrained to short close the order and gets the same done by other party, for which defendant addressed letter asking for payment stating that then only work will be started, that as the defendant failed to rectify the defect by invoking clause no 4 of the contract plaintiff got repaired the equipment to meet production 2 schedules, that due to failure on the part of defendant plaintiff suffered loss of

Rs.52,80,000/-. Calculation is made in para No.5 of the plaint stating, that the machine runs in 2 shifts, that machine hour rate is Rs.2,500/- for hour, that machine works 15 hours per day which comes to Rs.37,500/- per day, that for 25 working days the amount comes to Rs.9,37,500/- and 70% efficiency of machine is taken into account, then the amount comes to Rs.6,56,250/- per month, that machine was not in working condition for 8 months, so the total loss was calculated at Rs.52,80,000/-.

3.Defendant initially filed written statement pleading, that as per the purchase order defendant has to do 6 works, that he did all the works but plaintiff paid only first installment of 30%, that claim for second installment was also signed but caused obstruction for paying that amount and resorted to correspondence, then defendant filed

Writ Petition before High Court for release of second installment and as per orders of the High Court in WP No.28,435/2009 second installment was paid, that only the save skin of superior officials the present suit is filed, that defendant reserves its right to file counter claim but he did not file counter claime along with the original written statement.

4.Based on the aforesaid pleadings the following issues are settles for trial.

1.Whether plaintiff is entitled to the suit amount?

2.To what relief?

3. Subsequently, after the suit was part heard, defendant filed counter claim pleading, that plaintiff has to pay final bill of 40% of amount which is to a tune of Rs.3,97,080/- and claimde interest at 24% per annum from 25-7-2009 for about 66 months to a tune of

Rs.5,24,145/- and also claimed compensation for breach of payment of 2nd and 3rd installments to a tune of Rs.2,00,000/- and there by made a totle counter claim of

Rs.11,21,225/- 4.Then additional issue is settled. Whether defendant is entitled to counter claim?

5.During trial manager-material of plaintiff company is examined as PW1 and deputy manager-material is examined as PW2. Exs.A1 to A14 are exhibited on behalf of the plaintiff. On the other hand a person who worked as senior engineer in the defendant company is examined as Dw1 and Exs.B1 to B16 are exhibited on behalf of defendant.

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6.Heard both sides

7.Issue No.1 and Additional Issue.

Admitted facts of the case are plaintiff owns an old Russian machine which needed repair, then it gave purchase order to defendant for repair. It was agreed between the parties, that payment shall be made in 3 installments, first and second installment at 30% each and 3rd installment of 40%. It is also agreed between the parties that some work was done by defendant and first installment was paid. It is also not disputed that bill raised by defendant for second installment was accepted by the plaintiff and orders were passed for release of that amount, but before actual release of that amount it was stopped, then defendant filed Writ Petition before High Court and during pendency of the writ petition second installment was released.

8. Plaintiff claims, that defendant did not complete the work entrusted to it and inspite of number of reminders it was not done, so, by invoking clause No.4 of Ex.A1 purchase order the work was got done by some other person and that there was delay of 8 months due to fault of defendant and which resulted in loss of production and claimed damages for the said period. According to the defendant it completed the entire work and it is also entitled to 3rd installment. The burden is on the plaintiff to prove, that defendant did not complete the work and due to its fault there was delay of 8 months during which there was loss of production and about the calculations made about the loss. In order to succeed in the counter claime defendant must prove, that it has completed the entire work given under Ex.A1 and still plaintiff failed to pay the balance of 40% and, that his claim for the said amount is within the limitation. So it is clear that the burden of the establishing issue No.1 is on the plaintiff and the burden of establishing additional issue is on the defendant.

8. PW1 filed affidavit repeating the averments in the plaint. In the cross examination it is elicited, that Ex.A1 is a service contract between plaintiff and defendant but not material contract, that material to be used for the service should be supplied by the plaintiff. Along with Ex.A1 that an annexure is enclosed. It is suggested to PW1, that the said annexure is not part of Ex.A1 and, that it is only proforma of purchase order of plaintiff company. It is elicited, that Ex.A1 does not say that annexure is part of purchase order. It is elicited, that under Ex.A1, 6 items of work were entrusted to 4 defendant and out of them items 1 to 4 were completed. Exs.B1 to B9 were exhibited through PW. 1. It is elicited, that machine in question has X,Y,Z and W axis movements, that movements are caused by motor fixed to it, that for movement of X axis 48 neutral meter motor power is required. It is also elicited, that trial run of X axiss was done on 10-5-2009 and he was also present at that time, that subsequently on 6-6-2009 Ex.A3 letter was written to defendant intimating that motor got repair. It is elicited, that in

Ex.A3 it was mentioned that machine was not ready for trial and there was no mention about repair to the motor. He admitted, that no record is filed to shown that machine was not used from 10-5-2009 to 6-6-2009. He further admitted, that on 10-5-2009 itself motor to Semens company for repair and Ex.A12 is the repair report of Semens company dated 27-7-2009. It is further elicited, that semens company changed the bearings of motor by replacing the burnt bearings. It is further elicited, that if HP of motor is not sufficient to the machine the motor gets damage and it may include burning of bearings. He admitted that the motor was repaired by semens on 21-8-2009. He also admitted, that he was informed that HP capacity of the motor has to be increased. He also admitted that basing of the advice of semens company they decided the size of the motor to be used for the machine and on 22-8-2009 machine was put to production and running.

9. PW2 filed affidavit repeating the version in the plaint. In the cross examination he could not say on which day motor was burnt and when it was repaired. It is clear from the evidence of PW2 he is not material witness and he has no knowledge about the dispute.

10.The evidence of PW1 coupled with his admissions clearly shows, that defendant completed the work and trial run was also done on 10-5-2009, but on the same day motor got repair and it was sent to semens company. Motor was repaired by replacing burnt bearings and thereafter machine was put to use. The admission made by PW1 clearly shows, that PW1 was informed that HP capacity of the motor should be increased to run the machine and it is also proved to be correct subsequently. As wrong capacity motor was used it was burnt and so machine could not be run. If machine could not be run due to fault of the motor used by the plaintiff with which defendant has nothing to do plaintiff should not blame the defendant. If the machine could not be run for defect in it, then defendant is responsible.

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11.So it is clear, that due to mistake committed by plaintiff and due to the wrong advice given by semens company about size of the motor to be used for running the machine problem arose on 10-5-2009 in the motor. After it was rectified machine was put to use and thereafter used for production. So it is clear, that there was no fault on the part of defendant. But either mistakenly or due to some other reason the officials of the plaintiff, having passed orders for payment of second installment, stopped the payment and only after filing of Writ Petition it was released. Even after the motor was got repaired and put to use from 21-8-2009 itself, plaintiff falsely claimed in the suit that machine was not repaired till December 2009 which clearly shows, that false plea was taken by plaintiff to make claim for damages. Even without considering the evidence of defendant, it is clear from the evidence of plaintiff itself, that there is no fault on the part of defendant and loss if any caused to it is also on account of failure of the officers of the plaintiff company or the wrong advice given by Semens company about the capacity of motor to be used. As such plaintiff is not entitled to claim any damages.

12. Coming to the counter claim, it is clear from the admission made by plaintiff that second installment was released after filing of writ Petition and 3rd installments was not paid. Instead, this suit is filed making false claim. So it is clear, that plaintiff is liable to pay 3rd installment to the defendant. Dw1 filed affidavit repeating the averments in the writ statement including the counter claim. In the cross examination it is elicited, that at the time of trial run due to wrong capacity of the motor machine got jammed. It is suggested to him that due to misalignment of machine it was struck.

13. It is established from the evidence of plaintiff itself that after repairs to the motor machine was working. It clearly shows, that there is no fault on the part of machine and it establishes that defendants completed the work entrusted to it. The suggestion put to

Dw1 that due to misalignment machine got struck is baseless. Though Exs.A13 and A14 were exhibited, they were long prior to the date of trial run. No evidence is adduced to show that any work was left by the defendant and it was got done by anyone as pleaded in the plaint. As such, defendant is entitled to claim the 3rd installment. But it has to be seen whether the claim of the defendant which is claimed as a counter claim is within period of limitation or not.

6

14. Learned counsel for defendant referred to all provisions on Limitation Act. But could not explain how the counter claim made by the defendant on 19-2-2015, which is more than 5 years after filing all the suit, which was filed on 3-2-2010, is within the limitation. According to the defendant trial run was done on 10-5-2009 and according to him entire work was completed by then. So cause of action to claim the 3rd installment also arose on that day. Even if the date of filing of the suit by plaintiff is taken into consideration as giving fresh cause of action to make counter claim it is not made within 3 years thereafter. As such though technically plaintiff was entitled to make counter claim for 3rd installment, since claim was not made within 3 years, it is barred limitation. Hence, issue No.1 and additional issue are held in the negative.

15.Issue No.2.

In the result suit is dismissed with costs. Since it is established that plaintiff made false claim knowingly plaintiff shall pay compensatory costs of Rs.50,000/- to the defendant and for misusing the possession of court with false claim plaintiff shall also pay sum of Rs.20,000/- to District Legal Service Authority, R.R.Dist within 1 month from the date of decree, failing which it shall be recovered as arrears of land revenue due to the state government. So far as the counter claim is concerned it is also dismissed, but considering the fact that it is dismissed on the ground of limitation each party is directed to bear its own costs so far as counter claim is concerned.

Dictated to Personal Assistant transcribed by him, corrected and pronounced by me

in the open court on this the 4thday of September 2015.

XI Addl. District & Sessions Judge (FTC), Ranga Reddy District.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF

PW1:K.Prasad Rao PW2:J.Krishna Reddy

FOR DEFENDANT

DW1:A.Bhupal Reddy

EXHIBITS MARKED

FOR PLAINTIFF

Ex.A1:Purchase order dt.11-5-2007 Ex.A2:Amendment to purchase order dt.25-7-2008 Ex.A3:Letter to the defendant dt.6-6-2009 Ex.A4:Reply letter dt.14-6-2009 from the defendant for the letter dt.6-6-2009 Ex.A5:Letter to the defendant dt.23-6-2009 Ex.A6:Legal notice dt.26-10-2009 Ex.A7:Reply legal notice dt.3-12-2009 Ex.A8:Estimation letter showing machine hour rate.dt.1-4-2009 Ex.A9:Delegation point to unit chief dt4-8-2007 Ex.A10: BFIR proceedings of merger dt.13-6-2008 Ex.A11:letter of Authority. Ex.A12:Articles of association of the plaintiff company. Ex.A13:Minutes of plaintiff company dt.24-8-2008 Ex.A14:Minutes of plaintiff company dt.12-10-2008.

FOR DEFENDANT

Ex.B1:Minutes of the meeting 2-9-2008 Ex.B2:Minutes of the meeting 9-9-2008 Ex.B3:Inspection report with chart Ex.B4:Drawing showing work sheet dt.30-10-2008 Ex.B5:Column levelling readings Ex.B6:Letter dt.26-12-2008 Ex.B7:Enclosure to Ex.B6 namely list of materials. Ex.B8:Letter dt.10-2-2008 Ex.B9:Bill invoice challan of Ex.B9 dt.25-7-2008 dt 23-2-2008 Ex.B10:Original second phase bill deeply endorsed, counter singed and act by bank dt.23-2-2009 Ex.B11:O/C of letter complaining delay of PTC insupply of material dt.24-2-2009 Ex.B12:List of mechanical parts at the attached to Ex.B11 dt.24-2-2009 Ex.B13:List of electrial parts attached to Ex.B11 dt.24-2-2009 Ex.B14:Set of drawings Nos.(14) dt.2-3-2009 Ex.B15: O/C of final bill dt.25-7-2009 Ex.B16:Authorisation dt.21-11-2014

XI Addl. District & Sessions Judge (FTC),

Ranga Reddy District.

corrected

IN THE COURT OF XI ADDL. DIST. JUDGE (FTC), R.R.DISTRICT

PRESENT: SRI VENKATESWARLU. K

XI ADDL .DIST JUDGE, (FTC),

AT L.B.NAGAR, R.R.DISTRICT

Monday the 14thday of September, 2015.

O.S. No.643 of 2007

Between: J.Vijaya Laxmi W/o. Pandu Goud D/o.Late Bixapathy aged 32 years R/o.11-4-102/1, Srinivasa

Colony,Saroornagar, Hyderabad-500 035. ... Plaintiff

A n d

1..Kowsalya W/o. Late Bixapathy aged 65 years R/o.4-103, L.B.Nagar, Saroornagar Revenue Mandal, R.R.Dist. 2.A.Balraj S/o. Late Bixapathy aged 45 years R/o.4-103, L.B.Nagar, Saroornagar Revenue Mandal, R.R.Dist. 3.A.Jagan S/o.Late Bixapathy aged 41 years R/o.4-103, L.B.Nagar, Saroornagar Revenue Mandal, R.R.Dist. 4.A.Snobhan Babu S/o. Late Bixapathy aged 28 years R/o.4-103, L.B.Nagar, Saroornagar Revenue Mandal, R.R.Dist. 5.A.Bharat S/o. A.Balraj aged 19 years R/o.4-103, L.B.Nagar, Saroornagar Revenue Mandal, R.R.Dist. 6.A.Babu Rajendra Prasad S/o. Sambaiah aged 48 years R/o. Plot No.246, Srinivasapuram Colony, Vanasthalipuram, Hayathnagar Mandal, R.R.Dist. 7.G.Venkateswara Rao S/o. Kotaiah aged 50 years R/o. Flat No.5, Adarsh Vihar Apartments, adarshnagar Opp.New M.L.A.Quarters, Hyderabad. 8.Madhupala Estates Pvt.Ltd. Represented by its M.D. S.Suresh S/o. S.Achary aged 38 years R/o. H.No.11-13-113/12/A, R.K.Puram X Roads, Saroornagar, R.R.Dist. 9.V.S.P.Cottage Industries, represented by its Proprietor Smt.Mendu Leela Kumari W/o. M.V.R.Prasad aged 35 years R/o. MIG-255, Phase 4, Vanasthalipuram, R.R.Dist. 10.Sama Prabhakar Reddy S/o. Sama Narasimha Reddy aged 34 years R/o. Plot No.1, HIG, Phase 1, Vanasthalipuram, R.R.Dist. 11.C.Muralidhar Reddy S/o. Venkatanarasimha Reddy R/o. D.No.5-125, Pedda Amberpet, Hayathnagar Mandal, R.R.Dist. 12.Rajavarapu Ravi S/o.Late Lingaiah aged 43 years H.No.8-3-222/8/15, Madhuranagar, Hyderabad. 13.A.Buchamma, W/o. Late A.Balraj aged 50 years.

14.A.Ramya D/o. LateA.Balraj aged 22 years. .... Defendants

This suit coming before me on 7-7-2015 in the presence of Sri.P.Srinath Advocate for the plaintiff and Sri.A.P.Rao, Advocate for Defendants and D1 to D9, D11 to D14 having remained exparte, and upon perusal of the material papers on record having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1. This is a suit for partition of suit schedule in to 25 shares and to allot 6 shares each to plaintiff, D2 to D4 and one share to first defendant in A schedule properties, for 2 cancellation of registered GPA executed by the plaintiff in favour of D10, for mesne profits and other reliefs.

2. The case of the plaintiff is, that she is daughter of D1, that D2 to D4 are her brothers, that husband of D1 by name Bixapathy got ABC schedule properties from his father Lakshmaiah by way of succession, that out of the said properties Bixapathy sold all the lands at Abdullahpur except item No.3 of suit schedule, that Bixapathy was spendthrift and became a prey to evil hands and got addicted to vices, that plaintiff being daughter was kept in the darkness by her father and brothers, that Bixapathy died intestate on 10-10-1998, that at that plaintiff was aged 13 years, that her marriage was performed in 1992, that she became coparcener of the joint family by virtue of A.P. Amendment of the Hindu Succession Act and she is in joint possession and enjoyment of suit schedule along with D1 to D5, that D1 to D4 used to give faultry amounts to plaintiff towards her share of income in the suit schedule till 2004 and thereafter they stopped paying any amount, that then plaintiff made enquires and came to know, that D1 to D4 executed registered GPA in favour of D6 authorising him to sell item No.1 and 3 of suit A schedule, that 6th defendant executed sale deed in respect of item No.2 of suit A schedule which is part of item No.1 of suit A schedule, that D1 to D3 executed sale deeds in favour of D7 in respect of item No.1 of reschedule, that D1 to D4 and son of D2, who is D5, executed sale deed in respect of item no.2 of B schedule in favour of 9th defendant, that schedule is part and parcel of item No.1 of A schedule, that plaintiff is entitled to one share in the suit schedule property, as such all the alienations made by D1 to D5 are not binding to her, that when plaintiff was making enquiries D10 and D11 brought her and by poisoning her mind obtained a registered agreement of sale cum GPA in favour of D10 by misrepresentation and mentioned extra extent of property in the said document, as such the said document is not valid as it was obtained by playing fraud on her, that D10 alienated B schedule property in favour of D11, that request of

the plaintiff for partition was not accepted by defendants. Hence, the suit.

3. Suit is filed against D1 to D11 initially. Subsequently D12 was added as per order in I.A.1171/2011. D2 died and subsequently D13 and D14 were added as per order in I.A.761/2014 as legal heirs of D2 besides D5 is already on record. D9 alone filed written statement. After D12 was added as party to the suit, as summons were not sent to him, suit against D12 is dismissed for default.

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4. D9 filed written statement pleading that this is a collusive suit between plaintiff and D1 to D5, that all the alienations and transactions were done with the knowledge of plaintiff, that having kept quiet since 1996 present suit is filed to harass and extract money from D9, that suit schedule, particularly item No.2 of B schedule was not ancestral property, that was never in joint possession of the plaintiff, as such she is not entitled to claim any share in it, that since plaintiff was satisfied by her share by way of Pasupu, Kunkumma she is estopped from claiming any right in the suit schedule.

5. Based on the aforesaid pleadings following issues are settled for trial

(i) Whether the plaintiff is entitled for cancellation of Registered agreement cum GPA

Dt. 30-12-2005 executed by plaintiff in favour of 10th defendant?

(ii) Whether plaintiff is entitled to seek partition of suit schedule property, if so how much share plaintiff and defendants are entitled to?

(iii) To what relief?

6. During trial when the plaintiff filed her affidavit and exhibited Ex.A1 to A25, D9, who filed written statement, did not come forward to cross examine the witness. Hence D9 is also said exparte.

7. Heard counsel for plaintiff

Issue No.2:- It is clear from evidence on record, that plaintiff and D2 to D4 are children of D1. Her husband Bixapathy died in 1988. After his death the marriage of plaintiff was performed in 1992. Though she claimed that defendants 1 to 4 used to pay faultry amounts ranging between 500 to 1000 per annum to her towards her share except her ipsi dixi, no documentary evidence is filed to prove her claim. Though she claimed to be in joint possession along with D1 to D4 court fee is paid U/sec 34(1) of A.P.C.F and S.V.Act. As such joint possession or independent possession is not material in this suit. The claim of the plaintiff is based on the A.P. Amendment of the Hindu Succession Act. It is an admitted fact, that Hindu Succession Act was subsequently amended by Central Government in 2005 which has the effect of annulling A.P. Amendment. According to the Amendment made by Central Government daughters of a coparcener is also made coparceners along with sons. But in the same amendment a provision is added to Sec. 6 which says, that any alienation 4 made prior to 20th December 2014 is saved. In this suit admittedly sale deeds executed in favour of D6 to D8 were prior to the aforesaid date. Only the sale deed executed in favour of D9 is after the amendment made by Central Government. The said sale deed is exhibited as Ex.A4. It is in respect of item No.2 of suit B schedule. Except in respect of that item plaintiff can not seek partition of other properties which were alienated by D1 to D4 or D5 prior to the central amendment of the Hindu Succession Act in view of saving provision in that section. D9 disputed that the property covered by Ex.A4 is not ancestral property.

8. Plaintiff filed number of pahanis. But except in Ex.A22 and 23 there is no reference to S.Nos.48 and 49 which is the property covered by Ex.A4. Ex.A22 shows, that name

of Bikshapathy is mentioned as pattadhar in Chesal pahani for 1955-58 and it is

mentioned that he is purchased it. From 1958 till 2000 no pahanis were filed. In Ex.A23 there is reference to only S.No.48 which is disputed as ancestral property. There is no other pahani which shows that S.No.49 was enjoyed by Bikshapathy or his legal heirs at any time after 1958. In Ex.A23 even in the land no S.No. 48 is shown to be in names of D1 to D4. As already stated supra it relates to period 2000-2001 Ex.A23 shows that the property was partitioned among D1 to D4 even by 2000- 2001 and they have been in exclusive possession and enjoyment of their respective shares. There is no evidence as to when they partitioned their property. As already stated supra the pahanis between 1958-2000 are not filed to know when it was partitioned among D1 to D4. Suit was filed

in 2007. Except Ex.A23 no document is filed to show who are in possession and

enjoyment of it as on the date of the suit. It is clear from Ex.A25 D9 sold away that property to 3rd party on 26-5-2008. Hence, D9 remained exparte and purchaser of D9 is

not made party.

9. It is clear from evidence of plaintiff coupled with documents filed by her that even in respect of item No.2 of B schedule property there is no pahani to show that plaintiff or any of his brothers and other family members are in possession and enjoyment of it after 1958 till the filing of suit. Ex.A23 shows that land in S.No.49 was partitioned among D1 to D4 long prior to the Central Amendment to Hindu Succession Act came in to force. The provision to the amendment made by Central Government clearly says that not only alienations made before 20-12-,2004 but also partition made among them are saved. As such it is clear that no property is left to be divided among 5

D1 to D4 by the date of filing of suit and by date of coming into force of Central Amendment of Hindu Succession Act. As such, the claim of the plaintiff that she is entitled to share in the suit schedule in view of the A.P Amendment Hindu Succession Act is not acceptable. Once the Amendment made by Central Government came into force, which is interpreted to be retrospect in effect by the higher courts, the rights if any plaintiff had under A.P. Amendment are lost. She gets rights if any under Central Amendment only. But in view of the provision saving alienations and partition already made the plaintiff is left with no property to claim for partition. As such plaintiff is not entitled to seek partition of any of the items of the suit schedule. Hence Issue No.2 is held in the negative.

10. Issue No.1:- Plaintiff executed agreement of sale cum GPA in favour of D10. It is exhibited as Ex.A5. The plea of the plaintiff is that by making false representation D10 obtained Ex.A10 stating that the property covered by it is only Ac.1.05 guntas, but at the time of filing of the suit she obtained copy of document and found that extent was mentioned as Ac.2.25 guntas instead of Ac.1.05 guntas by altering the numbers. As such it is fraud played on her and sought for cancellation of the said agreement. Perusal of Ex.A5 shows, that the extent mentioned in it is Ac.1.25 guntas but not Ac.2.25 guntas as mentioned in the plaint. As such the version given by the plaintiff that she agreed to sell only Ac.1.05 guntas and that document was obtained for Ac.2.25 guntas is not correct. It is also pleaded by the plaintiff that D10 is sold away that property in favour of D11, but that sale deed is not filed to know what was the extent mentioned in the document. The burden is on the plaintiff to prove that fraud was committed on her. Her oral evidence is contrary to the document filed by her. As such her version cannot be accepted and she failed to discharge the burden on her. Consequently, she is not entitled to the said relief. Hence, issue no 1 is also held in the negative.

9. Issue no.3. In the result suit is dismissed with costs but considering the fact that all the defendants remained exparte there is no order as to costs.

Dictated to Personal Assistant transcribed by him, corrected and pronounced by me in

the open court on this the 14th day of September 2015.

XI Addl. District & Sessions Judge (FTC), Ranga Reddy District.

6

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF

J.Vijaya Laxmi.

FOR DEFENDANT

Nil

EXHIBITS MARKED

FOR PLAINTIFF

Ex.A1:C.C of the reg.GPA executed by D1 to D4 in favour of 6th defendant bearing

Doc.No.288 of 1995, dt.18-4-1995.

Ex.A2:C.C. Of the reg. Sale deed executed by GPA on behalf of D1 to D4 in favour of 8th defendant bearing Doc.No.6344 of 2003, dt.31-7-2003. Ex.A3:C.C. Of the reg. Sale deed executed by D1 to D3 in favour of 7th defendant

bearing Doc.No.2473 of 1996, dt.17-6-1996.

Ex.A4:C.C Of the reg. Sale deed executed by D1 to D5 in favour of 9th defendant

bearing Doc.No.314 of 2006, dt.5-1-2006.

Ex.A5:C.C. Of the reg. Agreement of sale cum GPA without possession executed by the plaintiff in favour of the 10th defendant bearing Doc.No.12490/2005, dt.30-12-2005. Ex.A6:C.C. Of the pahani for the year 1954-55 in respect of Sagarpampu lands. Ex.A7:C.C. Of the pahani for the year 1955-56,56-57 and 57-58(No.3) in respect of Sagarpampu lands. Ex.A8:C.C. Of the pahani for the year 1972-73 in respect of Sagarpampu lands Ex.A9:C.C. Of the pahani for the year 1984-85(No.2) in respect of Sagarpampu lands. Ex.A10:C.C. Of the pahani for the year 1985-86(No.2) in respect of Sagarpampu lands EX.A11:C.C. Of the pahani for the year 1986-87 in respect of Sagarpampu lands Ex.A12:C.C. Of the pahani for the year 1987-88 in respect of Sagarpampu lands Ex.A13:C.C. Of the pahani for the year 1988-89(No.2) in respect of Sagarpampu lands Ex.A14:C.C. Of the pahani for the year 1989-90(No.2) in respect of Sagarpampu lands Ex.A15:C.C. Of the pahani for the year 1990-91(No2) in respect of Sagarpampu lands Ex.A16:C.C. Of the pahani for the year 1991-92 in respect of Sagarpampu lands Ex.A17:C.C. Of the pahani for the year 1992-93(No.3) in respect of Sagarpampu lands Ex.A18:C.C. Of the pahani for the year 1993-94(No.3) in respect of Sagarpampu lands Ex.A19:C.C. Of pahani for the year 1996-97 in respect of Sagarpampu lands. Ex.A20:C.C. Of pahani for the year 1998-99 in respect of Sagarpampu lands Ex.A21:C.C. Of the pahani for the year 1999-2000 in respect of Sagarpampu lands 7

Ex.A22:C.C. Of the pahani for the year 1955-58 in respect of Laskarguda lands. Ex.A23:C.C. Of the pahani for the year 2000-01(No.2) in respect of Laskarguda Lands. Ex.A24:Market value certificates Ex.A25:C.C. Of the Reg.sale deed bearing Doc.No.1980 of 2008, dt.26-5-2008.

FOR DEFENDANT

Nil

XI Addl. District & Sessions Judge (FTC),

Ranga Reddy District.

corrected

Dt.14-09- 2015

NOTICE

Take notice that judgment in O.S.643 of 2007 is pronounced by the court today.

SUPERINTENDENT

XI ADJ

To. P.Srinath advocate for Plaintiff A.P.Rao. Advocate for Defendants

Dt.14-09- 2015

NOTICE

Take notice that judgment in O.S.643 of 2007 is pronounced by the court today.

SUPERINTENDENT

XI ADJ

To. P.Srinath advocate for Plaintiff A.P.Rao. Advocate for Defendants

IN THE COURT OF XI ADDL. DIST. JUDGE (FTC), R.R.DISTRICT

PRESENT: SRI VENKATESWARLU. K

XI ADDL .DIST JUDGE, (FTC),

AT L.B.NAGAR, R.R.DISTRICT

day the ----rdday of September, 2015.

O.S. No.1116 of 2008

Between: 1.Shanta Bai, W/o.Late Laxmi Prasad aged 60 years R/o.H.No.14-10-440, Sevdal, Dhoolpet, Hyderabad. 2.Takur Vijay Kumari W/o.T.Subhash Singh aged 50 years R/o.H.No.18-7-

747/A/1/1,Gowlipura, Hyderabad. ... Plaintiffs

A n d

1.Hakeem Susheela Bai W/o.Late Gangadeen aged 60 years R/o.H.No.1-92,Bhadurguda Village, Shamshabad Mandal, Ranga Reddy District. 2.Hakeem Ramdeen S/o. Late Gangadeen aged 37 years R/o.H.No.1-92,Bhadurguda Village, Shamshabad Mandal, Ranga Reddy District. 3.Hakeem Anil Kumar S/o.Late Gangadeen aged 34 years R/o.H.No.1-92,Bhadurguda Village, Shamshabad Mandal, Ranga Reddy District. 4.Hakeem Sunil Kumar S/o.Late Gangadeen aged 31 years R/o.H.No.1-92,Bhadurguda Village, Shamshabad Mandal, Ranga Reddy District. 5.Hakeem Vinod Kumar S/o.Late Gangadeen aged 28 years R/o.H.No.1-92,Bhadurguda Village, Shamshabad Mandal, Ranga Reddy District. 6.Hakeem Vimal Kumar S/o.Late Gangadeen aged 25 years R/o.H.No.1-92,Bhadurguda Village, Shamshabad Mandal, Ranga Reddy District. 7.Hakeem Ashok S/o.Late Hakeem Munnalal aged 56 years R/o.Bahadurguda Village, Shamshabad Mandal, Ranga Reddy District. 8.K.Sunitha W/o.K.Guruva Reddy aged 30 years R/o.H.No.6-111/1,Kapugadda,

Shamshabad Village&Mandal, Ranga Reddy District. .... Defendants

This suit coming before me on 18-8-2015 in the presence of Sri. Hari Krishna Advocate for the plaintiffs and Sri. P.Srinath, Advocate for D1 to D6 and Sri. G.Rama Rao Advocate for D8 and D7 having remained exparte, and upon perusal of the material papers on record having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1. This is a suit seeking partition of suit schedule property into 4 equal shares and to a lot one share each to plaintiffs 1 and 2 and to declare the sale deed dated 4-8-2003 registered at sub registrar office Shamshabad as null and wide and for permanent injunction restraining the defendants from alienating the suit schedule to 3rd parties. Suit is filed showing Ac.23.20 guntas as item No.1 and 20 guntas as item No.2. It is mentioned, that item No.2 is part of item No.1 of the schedule.

2 2. The case of the plaintiffs is that they are daughters of Hakeem Munnalal who died leaving behind plaintiffs 1 and 2, D7 and Gangadeen, who is husband of first defendant and father of defendants 2 to 6. It is further pleaded, that Gangadeen died on 6-6-2003 leaving behind D1 to D6, that Munnalal had a brother Sohanlal, that by mutual understanding they were enjoying total property of more than Ac.80 in equal shares, but in the revenue records Ac.46 of land is shown to be in the enjoyment of father of plaintiffs by name Munnalal, that Munnalal died subsequently, that no partition took place between plaintiffs and their brothers, that is D7 and husband of D1, that plaintiffs have been living in Hyderabad and reposed confidence upon their brothers to keep their share in it, but by managing with managing revenue authorities D1 to 6 got their names entered in the revenue records for an extent of Ac.23.20 guntas and partitioned the properties between husband of D1 and D7, that without consent and knowledge of plaintiffs, D1 to D7 sold away Ac.7.30 guntas shown in item No.2 of the suit schedule to D8 under the registered sale deed in 2003, that plaintiffs are entitled to 1/4th share in the suit schedule, hence the suit.

3. Initially by pleading, that plaintiffs are in joint possession fixed court fee of Rs.200 was paid U/Sec.34(2) of A.P.C.F. And S.V Act. Subsequently, by filing I.A.348/15 at the time of arguments amendment was made stating that property is valued U/Sec.34(1) of

A.P.C.F and S.V Act and paid court fee accordingly.

4. D7 remained exparte. D1 filed written statement, which is adopted by D2, admitting th relationship between plaintiffs and D1 to D7. It is pleaded that after death of Munnalal there was partition between D7 and Gangadeen and based on it ROR proceedings were issued more than 30 years back, that plaintiffs are aware of the said partition between their brothers, but never challenged the same as they got their due share more than 40 years back, that suit schedule fell to the share of Gangadeen and after his death names of D1 to D6 are mutated, that as absolute owners they sold item

No.2 of the suit schedule to D8 under registered sale deed in 2003, that D7, who failed in his attempts to pressure D1 to D6 to return some land, connived with plaintiffs and got filed the suit, that plaintiffs got married in 1960 they were given their share by way of Pasupu-Kunkumma and they have no share in the suit schedule, that after partition

D7 and Gangadeen sold some other lands under 3 registered sale deeds dated 31-1-1990 which fell to the share of D7, that D7 and his brother also jointly sold Ac.5 of land under registered sale deeds 1992 and sought for the dismissal of the suit.

3

5. D8 filed separate written statement pleading, that he is bonafide purchaser for valid consideration, that he purchased the property from original owners, as such her sale should be protected and even if partition is ordered the property purchased by her should be allotted to the share of her vendor.

6. Based on the aforesaid pleadings the following issues are settled for trial:

(1) Whether the suit schedule properties are ancestral properties as contended by the plaintiffs?

(2) The eighth defendant is a bonafide purchaser of the property for valuable consideration?

(3) Whether the sale deed dt.4.8.2003 is not valid and binding on the plaintiff and it is liable to be declared as illegal, null and void?

(4)Whether the plaintiffs are entitled for partition of the suit schedule properties as prayed and entitled for a share and for separate possession thereof?

(5)Whether plaintiffs are in joint possession of suit schedule property, consequently the court fee paid is correct?

(6)To what relief?

7.During trial second plaintiff alone is examined as PW1 and Exs.A1to D5 are exhibited on behalf of plaintiffs. On the other hand D6 is examined as DW1, D8 is examined as DW2 and B1 to B20 are exhibited on behalf of defendants.

8. Heard both sides. Written arguments are also submitted by both sides.

9. Issue No.5.

As already stated supra, initially fixed court fee was paid U/Sec34(2) of A.P.C.F. and

S.V. Act pleading that plaintiffs are in joint possession and enjoyment of suit schedule.

But subsequently at the stage of arguments admitting that plaintiffs are not in joint possession and enjoyment of suit schedule court fee is paid U/Sec34(1) A.P.C.F and S.V

Act. As such this suit has become irrelevant and court fee paid by the plaintiffs for the relief of partition and other reliefs is correct.

10. Issue Nos 1 to 4.

There is no dispute about the relationship between plaintiffs and D1 to D7. Plaintiffs are brothers of D7 and Gangadeen who is husband of D1. All of them are children of 4

Late Munnalal who died long back. Gangadeen also died on 6-6-2003 leaving behind his wife D1 and children D2 to D6. It is also an admitted fact, that D1to D7 executed sale deed in respect of item No.2 of the suit schedule in favour of D8 on 4-8-2003 which is now sought to be canceled by the plaintiffs. According to the plaintiffs their father Munnalal got about Ac.46 of land to his share. It is not explained as to what happened to the remaining land when suit is filed only for Ac.23.20 guntas. As can be seen from the facts of the case the suit is filed by the plaintiffs only based on the amendment made to second of Hindu Succession Act by the Central Government. It has to be seen whether plaintiffs are entitled to claim share in the suit schedule.

11. PW1 filed affidavit repeating averments in the plaint and exhibited Exs.A1 to A5.

In the cross examination it is elicited, that her father Munnalal died when she was aged 5 or 6 months and that her age now is about 50 years. It shows, that Munnalal died about 50 years back. She also admitted, that she got married at the age of 18 and that since the date of her marriage she has been living with her husband, that first plaintiff got married long prior to her marriage and she has been living with her husband since date marriage, that after their marriages she and other plaintiff never cultivated the suit schedule. She made vital admission that her brothers got partitioned the family property about 35 years back and pleaded ignorance that besides land sold to D8,

D1 to D7 also sold some other land to 5 others. She admitted that since the date of their partition her brothers have been in possession and enjoyment of their respective shares and that D1 to D6 have been in exclusive possession and enjoyment of suit schedule, that the land fell to the share of D7 is not shown in the suit schedule. She pleaded ignorance, that D7 and Gangadeen sold their ancestral property to 3rd parties in 1990 and whether D7 sold some land under registered sale deed in 1992.

12. Admissions made by Pw1 are sufficient to dismiss the suit. The vital admissions are that the property under Ex.A2 was sold prior to the cut of date mentioned in the amendment to Sec.6 of Hindu Succession Act, that is 20-12-2004. Partition took place between Gangadeen and D7 about 35 years back and ever since they have been in possession and enjoyment of their respective shares, that both brothers jointly and independently sold lands to 3rd parties between1990-1992, besides in 2003 under

Ex.A2. It is also clear, that D7 sold some of his property to Gangadeen in 1992 and the property that fell to the share of D7 is not added to the suit schedule, and the property 5 that is being enjoyed by D1 to D6 is being sought to be partitioned into 4 equal shares.

So it is clear, that partition is being sought for only part of ancestral property. As per proviso to Sec.6 of Hindu succession Act amended in 2005 of alienation made prior to 20-12-2004 are saved. Similarly, partition done prior to that date are also saved. PW1 admitted that partition took place about 35 years back and same property was sold by her brothers individually and together. As such the suit is not maintainable.

13.The evidence of defendants has to be considered since it is there on record. D6 filed affidavit repeating the averments in the written statement of D1 and exhibited

Ex.B1 to B15. In the cross examination it is elicited that there is no document to prove partition between Gangadeen and D7 and it was oral partition. Ex.B10 to B14 are the sale deed executed by Gangadeen and D7 and also between them. Nothing was elicited in the cross examination of PW1 to support the claim of plaintiffs.

14. Dw2 filed affidavit repeating her version, that she is a bonafide purchaser for valid consideration and that after purchase she got his name mutated in the revenue records and exhibits exhibited B16 to B20. In the cross examination it is elicited, that she has no knowledge about the partition between defendants and plaintiffs.

15. It is clear from evidence on record, that there was partition between Gangadeen and D7 long back which was also admitted by PW1. They also sold away some properties under Exs.B10 to B13. As can be seen from Ex.B14 D7 sold Ac.1.30 guntas to Gangadeen in 1992 in S.No.1. Exs.B10 to B13 shows that both of them jointly sold properties to 3rd parties in 1990 and 1992. Learned Counsel for plaintiffs in his written arguments contended, that for the purpose of Sec.6 of Hundu Succession Act partition means any document evidence by registered partition deed or by decree of court but in this case there is no such partition, as such it can not be held that there was partition and plaintiffs are automatically entitled to claim partition of suit schedule.

16. Though there is no registered partition between Gangadeen and D7 as admittedly took place about 35 years back and their consequently conduct in selling properties to 3rd parties and among themselves about 15 to 20 years prior to failing of the suit clearly shows that oral partition was acted upon and the adangals filed by defendants clearly shows that they have been in exclusive possession and enjoyment of their respective 6 shares. As such though technically there is no registered partition deed it cannot be said that no partition took place, more so when PW1 admitted about partition that took place between her brothers about 35 years back and she and her sister kept quiet without making any claim at that time because they had no right over that property. The purpose of proviso to Sec.6 is not to distrub things already settled. In the case on hand the partition between Gangadeen and D7 was settled more than 3 decades before filing of the suit and so it could not be allowed to be unsettled. Besides that it is categorically admitted by PW1 that suit is not filed for land that fell to the share of D7 and it amounts to seeking partially partition. On that ground also plaintiffs are not entitled to seek any share for the suit schedule property and in this context the contention of learned counsel for plaintiffs that having failed in his attempts D7 got this suit filed through sisters appears to be corrected. Viewed from any angle plaintiffs are not entitled seeking partition of the suit schedule. In view of the aforesaid discussion issue

Nos 1 and 2 are held in the affirmative and issue No.3 and 4 are held in the negative.

13. Issue No.6.

In the result suit is dismissed with costs.

Dictated to Personal Assistant transcribed by her, corrected and pronounced by me

in the open court on this the ----- day of September, 2015.

XI Addl. District & Sessions Judge (FTC), Ranga Reddy District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF

PW1:T.Vijaya Kumari

FOR DEFENDANT

DW1:H.Vimal Kumar DW2:K.Sunitha.

7

EXHIBITS MARKED

FOR PLAINTIFF

Ex.A1:Market value certificate. Ex.Α2:Certified copy of document No.1751/2003 executed by D1 to D6 infavour of D8. Ex.A3:Memo issued by MRO Ex.A4:Certified copies of pahani for the year 1954-55,55-58,72,75. Ex.A5:Certified copies of 7 pahanies of the year 1961-62,64-65,79-80,85- 86,1990-91,2000-01 and 2004-05.

FOR DEFENDANT

Ex.B1:CC of the pahani patrika for the year 1994-95(2) Ex.B2:CC of the pahani patrika for the year 1995-96(2) Ex.B3:CC of the pahani patrika for the year 1997-98(2) Ex.B4:CC of the pahani patrika for the year 1998-99(2) Ex.B5:CC of the pahani patrika for the year 1999-2000(2) Ex.B6:CC of the pahani patrika for the year 2000-2001(2) Ex.B7:CC of the pahani patrika for the year 2003-2004(4) Ex.B8:CC of the pahani patrika for the year 2004-05(3) Ex.B9:Original copy of order of the land revenue tribunal with vide CC No.4/W/75. Dt.14-8-1975 Ex.B10:Certified registered sale deed doc No.1410/1990 dt.31-1-1990 Ex.B11: Certified registered sale deed doc No.1411/1990 dt.31-1-1990 Ex.B12: Certified registered sale deed doc No.1412/1990 dt.31-1-1990 Ex.B13: Certified registered sale deed doc No.5868/1992 dt.15-5-1992 Ex.B14: Certified registered sale deed doc No.5869/12, 155/12 Ex.B15: Certified pahani patrika of 2-12-2013(6), 31-3-2015 by DW2 Ex.B16: Sale deed Doc.No.1751/2003 dt4-8-203 Ex.B17: Proceeding of MRO vide proc.No.A/2337. Ex.B18:Pahani for the year 2004-2005 Ex.B19:Pahani for the year 2005-2006 Ex.B20:Pahani for the year 2012-2013

XI Addl. District & Sessions Judge (FTC), Ranga Reddy District.

corrected

IN THE COURT OF MOTOR VEHICLE ACCIDENT TRIBUNAL-CUM

X ADDL. DIST. JUDGE (FTC), R.R.DISTRICT

PRESENT: SRI VENKATESWARLU. K

XI ADDL. DIST JUDGE, (FTC),

FAC:X ADDL. DIST JUDGE, (FTC),

AT L.B.NAGAR, R.R.DISTRICT

Tuesday, the 23rdday of February 2016.

O.P. No.788 Of 2014

Between: 1.T.Laxmaiah S/o. Late Shankaraiah Aged 57 years Occ:Nil R/o. Flat No.202, Sai Emrold Apartment, Singareni Colony, Saroornagar, R.R.Dist permanent residence of H.No.2-3-603/150/C/42, Patel Nagar, Amberpet, Hyderabad. 2.M.Kalpana W/o. Srinivas D/o. T.Laxmaiah Aged 30 years Occ:Housewife R/o. Flat No.202, Sai Emrold Apartment, Singareni Colony, Saroornagar, R.R.Dist permanent residence of H.No.2-3-603/150/C/42, Patel Nagar, Amberpet, Hyderabad. 3.T.Shyam Prasad S/o. T.Laxmaiah Aged 28 years Occ:Pvt.Employee R/o. Flat No.202, Sai Emrold Apartment, Singareni Colony, Saroornagar, R.R.Dist permanent residence of H.No.2-3-603/150/C/42, Patel Nagar, Amberpet, Hyderabad. 4.T.Santosh Kumar S/o. T.Laxmaiah Aged 27 years Occ:Unemployee R/o. Flat No.202, Sai Emrold Apartment, Singareni Colony, Saroornagar, R.R.Dist permanent residence of H.No.2-3-603/150/C/42, Patel Nagar, Amberpet, Hyderabad.

…..........Petitioners

A n d

1.Mohd.Asif Hussain S/o. Mohd.Anwar Hussain Aged Major Occ:Business, R/o. H.No.15-5-818, Afzalgunj, Hyderabad. 2.New India Assurance Co.Ltd, Rep.By its divisional manager, Legal cell, D.No.5-2- 174/2, Madan Mohan Buildings, R.P.Road, Secunderabad. (Name of R2 was struck off as per order in I.A.No.15/2016 dated 20-1-2016) 3.United India Insurance Co.Lted., Rep.By its Divisional Manager, Do-IV, Church

Building, Tilak Road, Abids, Hyderabad. .....Respondents

This petition coming before me for final hearing on 19-2-2016 in the presence of Sri.M.Vishveshwar Rao, advocate for the petitioners, Sri.A.Keshava Reddy, advocate for R1, Sri.K.Laxmi Narsimha Rao Advocate for R3, and upon perusal of the material papers on record having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1.This is a petition filed by husband and children of T.Sarojana, who died in an accident claiming compensation of Rs.20,00,000/- for her death in an accident. This is a petition filed U/S. 166 of the Motor Vehicles Act., herein after referred to as the

Act. Petition was originally filed against R1 and R2. Subsequently, R3 was impleaded and thereafter name of R2 was struck of as it is not concerned insurance company and

R3 is insurer of the vehicle of R1.

2

2. The case of the petitioners is that Sarojana was aged 49 years at the time of her accidental death, doing business in the name of M/s.Sarojana Swagruha Foods, earning

Rs.20,000/- per month, that on 6-10-2014 at 7:15 a.m when she was traveling in a bus bearing No. AP 09 X 4999 from Hyderabad to Thirupathi and by the time it reached near spinning mill quarters on Panyam-Nandyal in Panyam Vilage, Kurnool District of

A.P driver of the bus drove it in a rash and negligent manner without following traffic rules and lost control over the driving of the bus, as a result it turned turtle, that

Sarojana and other passengers traveling in the bus, including 1st petitioner, sustained injuries, that Sarojana sustained head injury and multiple fractures, then she was shifted to Santhiram General Hospital at Nandhayala in Kurnool Dist and from there she was shifted to Kamineni Hospital at L.B.Nagar, that while undergoing treatment she succumbed to injuries, that due to her sudden death petitioners suffered shock and agony and claimed Rs.20,00,000/- under different heads.

3. R1 filed counter pleading that petitioners have to prove occupation and income of deceased, that they have to prove the manner of accident, that another vehicle came in the opposite direction of bus, then driver of bus tried to avert the accident and in that process the bus turned turtle, that vehicle was insured with R3, but R2 was added as party.

4. Though R2 filed counter since name of R2 was struck of from the cause title and as no relief is being sought against R2 the counter of R2 is not considered.

5. R3 filed counter pleading that petitioners have to prove the manner of accident, injuries sustained by deceased, her occupation and income, that they also have to prove that driver of the bus has valid driving licence and that bus had valid permit and fitness, that quantum of the compensation claimed by petitioners is excessive.

6. Based on the aforesaid pleadings the following issues are settled for trial:

(1) Whether the accident occurred on 6-10-2014 at about 7:15 near spinning mill quarters on Panyam Nandyal NH-18 road, Panyam Village, Kurnool Dist, was due to rash and negligent driving of the bus bearing No.AP 09 X 4999 by its driver?

(2) Whether the petitioners are entitled for grant of compensation? If so, to what amount and from which of the respondents?

3

7. During trial first petitioner who is husband of deceased is examined as PW1 and

Exs.A1 to A12 are exhibited through him.

8. Heard both sides.

9. Issue No.1.

PW1 filed affidavit stating that he was also traveling in the same bus along with deceased, that by the time it reached the place of accident due to rash and negligent driving of bus it turned turtle, that he also sustained injuries along with deceased. In the cross examination it is elicited that there is no document given by organizers of bus in token of seats booked to him and his wife. He said that he was sitting behind the driver and claimed that from that place he can see the front side also. It is not even suggested to PW1 that there is no rashness and negligence on the part of driver of bus or that any vehicle came in rash manner in the opposite direction as pleaded by R1. As such evidence of PW1 stands unchallenged. Besides that Ex.A1 shows that on the report given by PW1 case was registered. Ex.A2 shows that after investigation charge sheet was laid against driver of the bus alleging that his rash and negligent driving resulted in accident. As such there is corroboration to the version of PW1 by the police record also. As such the unchallenged evidence of PW1 coupled with police record establishes that accident was caused due to rash and negligent driver of bus. Hence issue No.1 is held in the affirmative.

10. Issue No.2.

According to PW1 deceased used to do business in the name and style of M/s. Sarojana

Swagruha Foods, and she used to earn Rs.20,000/- per month. In support of his claim he filed income tax return in the previous year 2011-12 which is corresponding to assessment year 2012-13 in which her income was mentioned as Rs.1,98,600/- which is within the ceiling limit of tax slab for that year. It was filed on 18-11-2013 which is 11 months prior to the accident. So it cannot be contended that it is a manipulated one. But no IT return is filed for the year for the previous year 2012-13 corresponding to assessment year 2014-2015. It is contended by learned counsel for R3 that only to get eligibility for loans IT return was filed which is calculated as just below the exemption ceiling of the income tax. As such it cannot be accepted as the correct statement of income of deceased. Though, there is such possibility since there can be no other 4 document to prove the income except tax return it has to be accepted. No evidence is adduced to prove Ex.A12 IT return is not genuine one. So the income of the deceased has to be taken to Rs.2,00,000/- per annum. As can be seen from the petition all the petitioner claimed to be dependent upon the income of the deceased but all the children of deceased are majors and must have got married. Even the first petitioner cannot be said to be unemployed. He must also be helping the deceased in her business. So at best only first petitioner can be taken to be dependent upon income of deceased. Then it has to be assessed that deceased must be spending half of her income for her maintenance.

Then the contribution available to first petitioner comes to Rs.1,00,000/- per annum.

The age of the deceased is mentioned as 49 years in the petition. In the inquest report her age is mentioned as 55 years. In postmortem certificate also her age was mentioned

as 55 years. There is no document to corroborate the ages mentioned in the petition and

police record. In the absence of any such evidence it is safe to take the age of deceased as between 56 and 40. Then multiplier 9 is applicable and loss of income comes to

Rs.9,00,000/-. First petitioner is entitled to Rs.1,00,000/- towards loss of consortium.

Rs.25,000/- has to be awarded towards funeral expenses and Rs.50,000/- has to be awarded towards pain and agony and Rs.50,000/- can be awarded towards loss of estate.

Since the deceased was brought with injuries Nandhayal to Hyderabad petitioners must have incurred some expenditure for transportation for which they can be awarded a sum of Rs.10,000/- towards transportation charges. The total amount to which petitioners are entitled comes to Rs.11,35,000/-. R1 being owner and R3 being insurer are jointly and severally liable to pay the said amount to the petitioner. Hence Issue No.2 is held accordingly.

9. In the result petition is allowed in part with costs awarding a sum of

Rs.11,35,000/- with interest at 9% per annum on the said amount from the date of petition till realization against R1 and R3 jointly and severally. Out of the said amount

Rs.2,00,000/- each is awarded to petitioners 2 to 4 and the balance of Rs.5,35,000/- is awarded to first petitioner. Out of the amount awarded to first petitioner he is entitled to withdraw Rs.2,35,000/- with interest and costs. Balance shall be kept in fixed deposit for 2 years and it shall be paid to her thereafter. Petitioner 2 to 4 are entitled to withdraw the total compensation awarded to them soon after deposit into court.

Advocate fee is fixed at Rs.15,000/- 5

Dictated to Personal Assistant transcribed by her, corrected and pronounced by

me in the open court on this the Tuesday, the 23rdday of February, 2016.

X Addl. Dist. & Sessions

Judge(FTC),

Ranga Reddy District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER

PW1: T.Laxmaiah

FOR RESPONDANTS

Nil

EXHIBITS MARKED

FOR PETITIONER

Ex.A1: CC of F.I.R in Crime No.217/14 of P.S.Panyam. Ex.A2: CC of charge sheet in Crime No.217/14 of P.S.Panyam Ex.A3: CC of M.V.I report in Crime No.217/14 of P.S.PAnyam Ex.A4: CC of inquest report of T.Sarojana Ex.A5: CC of PME report of T.Sarojana Ex.A6: CC of M.V.I report in Crime No.217/14 of P.S.PAnyam Ex.A7: Out patient card Ex.A8: Medical bills-3 worth of Rs.6,090/- Ex.A9: Aadhar card of deceased T.Sarojana Ex.A10: PAN card of deceased T.Sarojana Ex.A11: Elector photo identity card of deceased T.Sarojana Ex.A12: Income tax return of 2012-2013 assessment year

FOR RESPONDANTS

Nil

X Addl. Dist. & Sessions Judge(FTC), Ranga Reddy District.

corrected