Sri M Gurunath

1

C In the Court of the Senior Civil Judge :: Srikalahasthi

Present :: Sri M.Guru Nath,

Senior Civil Judge,

Srikalahasthi.

Wednesday, the Thirtieth (30 th ) day of September, 2020

Original Suit No. 249 of 2014

Between

Davala Venkatasubbaiah, S/o.late D.Mallaiah, Hindu, aged about 70 years, business, residing at door No.12- 55/A, Sunnapuharizanawada, Thettu, Srikalahasthi, Chittoor District.

.. Plaintiff.

and

1. Davala Mohan, S/o.late D.Polaiah, Hindu, aged about 45 years, business, residing at door No.12-55, Sunnapuharizanawada, Thettu, Srikalahasthi, Chittoor District.

2. Ravinoothala Jayamma, W/o.R.Nagendraiah, Hindu, aged about 43 years, house wife, residing at 12-60, Sunnapuharizanawada, Thettu, Srikalahasthi, Chittoor District.

3. Davala Venkatakrishnaiah alias Krishnaiah, S/o.late D.Mallaiah, Hindu, aged about 60 years, business, residing at door No.2-26,Kothuru village, KVB Puram Mandal, Chittoor District.

.. Defendants.

This suit coming on 17-08-2020 before me in the presence of Smt.A.Suneetha, Advocate for plaintiff, Sri K.Udayanath, Advocate for defendants 1 and 2 and the third defendant remained exparte and upon perusing the record having stood over for consideration till this day, this court delivered the followings:

JUDGMENT

This suit is filed by the plaintiff against defendants, seeking reliefs of declaring that he is entitled for pre-emptive right to purchase ‘B’ schedule property, and to set aside the registered sale deed, dt.19-03-2014 executed by the first defendant in favour of second defendant and consequential permanent injunction and to award costs. The case of plaintiff is briefly narrated as follows:

02.One Dawala Mallaiah is the registered owner of ‘A’ schedule property said to have purchased the same under registered sale deed, dt.31-03-1933 executed by his vendor at Sub

Registrar Office, Srikalahasthi for a valid consideration. Thereafter, 2 the said ‘A’ schedule property was under active possession and enjoyment of said Dawala Mallaiah, who had three sons namely viz., plaintiff, one Dawala Polaiah i.e., father of first defendant and

Dawada Venkatakrishnaiah i.e., third defendant, respectively.

Thereafter the said Dawala Mallaiah died intestate. Soon after his demise, ‘A’ schedule property was divided into three equal shares as per the rough sketch annexed to the plaint, wherein, the father of first defendant got ‘B’ schedule property. At the time of partition among all brothers, it was agreed that if any one of them intends to sell his share, the same has to be offered to other two brothers who intend to purchase the same and to that effect, an agreement, dt.08-02-1999 was reduced into writing, duly attested by all three sons of said Dawala Mallaiah.

(ii) The plaintiff adds that the first defendant, being the son of his brother Dawala Polaiah, after the death of his father had sold away his share described as ‘B’ schedule property to the second defendant without to his knowledge and consent and never offered the same to him prior to the execution of registered sale deed, dt.19-03-2014 in favour of second defendant. Accordingly, the said act of the first defendant in executing registered sale deed, dt.19-03-2014 in favour of the second defendant is not valid and binding upon him, as he got pre-emptive right to purchase ‘B’ schedule house property, and that he was always ready and willing to purchase the same, according to prevailing market rate or as per the rate fixed by the court. The said act of first defendant in executing registered sale deed, dt.19-03-2014 in favour of second defendant was came to know to the plaintiff by obtaining the certified copy of the same from the Sub Registrar Office,

Srikalahasthi.

(iii) The plaintiff continued his pleading that even after execution of registered sale deed in favour of second defendant pertaining to ‘B’ schedule house property, the family of first defendant is still residing in the said house. When he had approached both first and second defendants expressing his intention to exercise pre-emptive right over ‘B’ schedule house property, however they had refused to oblige his request.

3

Accordingly, the plaintiff pleads that the first and second defendants have created sham and nominal registered sale deed, dt.19-03-2014 so as to defeat his pre-emptive right in ‘B’ schedule house property and the said act of first defendant in executing a registered sale deed on 19-03-2014 in favour of the second defendant, who is an outsider is contrary to recitals of the settlement deed, dt.08-06-1999 and thereby he is constrained to approach this court by way of present suit, seeking appropriate reliefs, as prayed for.

03.Soon after numbering the above suit, summons were ordered against all the defendants respectively. Upon service of summons, all defendants made their appearance before this court and requested to file their written statements. The second defendant filed her written statement through her counsel

Mr.K.Udayanath, Advocate, Srikalahasthi and the same was adopted by the first defendant. The third defendant remained exparte, as he has not chosen to file his written statement.

04.Averments of the written statement filed by the second defendant depicts denial of all allegations leveled against her by the plaintiff in the plaint and insisted him for placing strict proof of the same. Initially, she has pleaded ignorance about the execution of agreement of sale, dt.08-06-1999 among the plaintiff, third defendant and father of first defendant, respectively, and she had insisted the plaintiff for placing strict proof of the same. She also pleaded that the said document, being un-registered, as such it is not valid and binding upon herself and her vendor respectively.

While demonstrating her pleading, she claims to have purchased ‘B’ schedule house property from the first defendant for a valid consideration of Rs.1,50,000/- under registered sale deed, dt.19-03-2014 executed in her favour by her vendor, as such she claims to be a bonafide purchaser of the said property, which is true, valid and binding upon the plaintiff and third defendant also.

While pleading ignorance of execution of agreement of sale, dt.08-02-1999 creating a right of pre-emption over ‘B’ schedule house property, she pleads that the said document is a forged and fabricated, created so as to blackmail her vendor as well as exercising her right over ‘B’ schedule property. She adds that no 4 legal notice was got issued by the plaintiff prior to filing the present suit.

(ii) She continued her pleading that the possession over ‘B’ schedule house property was taken over by her on the date of execution of registered sale deed, dt.19-03-2014 itself from her vendor i.e., the first defendant and thereafter a memorandum of understanding was arrived at between herself and her vendor i.e., the first defendant with an agreement to allow her vendor to stay till 05-06-2015, accordingly as per the terms of the said document, the first defendant is living in ‘B’ schedule house property. She continued that mere staying of first defendant does not mean that the delivery was not effected to her on 19-04-2014 and thereby her vendor cannot be restrained from effecting delivery of ‘B’ schedule house property to herself. She also raised objection that the present suit is not maintainable, as the consequential relief of permanent injunction is also not maintainable under the law. With above said pleadings, she has requested to dismiss the suit with exemplary costs.

05.Upon consideration of pleadings placed on record by both sides, after hearing respective counsel, following issues were settled for trial.

01. Whether the plaintiff has pre-emptive right to purchase the suit ‘B’ schedule property ?

02. Whether the plaintiff is entitled to ask for setting aside the registered sale deed, dt.19-03-2014 as prayed for ?

03. Whether the plaintiff is entitled for possession of suit schedule properties as prayed for ?

04. Whether there is cause of action for the suit ?

05. To what relief ?

5

06.A careful reading of the reliefs sought by plaintiff in the plaint, make it clear that he also requested the court to grant permanent injunction, restraining the first defendant from delivering the possession of ‘B’ schedule property to the second defendant.

However, due to oversight and inadvertence, instead of framing an issue i.e., whether the plaintiff is entitled for grant of permanent injunction, restraining DW1 from effecting delivery of possession of ‘B’ schedule property in favour of DW2, an issue was framed to the effect that whether plaintiff is entitled for possession of suit schedule property. Hence, an issue this court feels it proper to re- cast the said issue No.3 as follows :: Whether the plaintiff is

entitled for grant of permanent injunction, restraining DW1

from effecting delivery of possession of ‘B’ schedule

property in favour of DW2 ?

07.During the course of trial proceedings, the plaintiff to prove his contentions, examined himself as PW1 supported by marking documents as Ex.A1 to Ex.A5 respectively. Ex.A1 is the registered sale deed, dt.31-03-1933 executed in favour of Dawala

Mallaiah in respect of ‘A’ schedule property, Ex.A2 is the un- registered family partition deed, dt.08-02-1999,Ex.A3 is the certified copy of registered sale deed, dt.19-03-2014 executed by DW1 in favour of DW2, Ex.A4 is the encumbrance certificate, dt.14-11-2014 pertaining to Ex.A3 and lastly Ex.A5 is the registered sale deed, dt.10-11-2017 executed by CW1 in favour of both sons of plaintiff. A third party was examined as PW2 on his behalf to prove the execution of Ex.A2 agreement of sale, dt.08-02-1999. After closure of plaintiff’s side evidence, the first defendant examined himself as DW1, the second defendant examined herself as DW2.

DW3 was examined as first attestor of Ex.A3 registered sale deed executed by DW1 in favour of DW2. A third party was examined as

DW4 and lastly the third defendant was examined as CW1 to prove the contents of Ex.A2.

08.Soon after closure of trial proceedings by both sides, the suit was taken up for arguments. Both sides have chosen to file written arguments through their respective counsel in reiterating 6 their line of contentions and also placed reliance upon reported citations with a request to appreciate the same.

09.ISSUE NO.1:: Both parties to the suit have availed provisions under Order 18 Rule 4 CPC in the form of filing their sworn affidavits, supported by relying upon documents as Ex.A1 to

Ex.A5 with a plea to receive and to read the same as examination in chief, the said plea was permitted, as both sides have entered into the entered into the witness box upon oath, reaffirmed entire contents scribed therein as true and correct. Initially, the plaintiff filed his sworn affidavit, examined himself as PW1 in reiterating his plea that his father Dawala Mallaiah had an occasion to purchase ‘A’ schedule property from his vendor under a registered sale deed, dt.31-03-1933 executed at Sub Registrar Office, Srikalahasthi for a valid consideration of Rs.10/-. To prove the said fact, PW1 relied upon Ex.A1 original registered sale deed, dt.31-03-1933 executed in favour of his father Dawala Mallaiah. A plain reading of entire recitals of the said document altogether corroborate with the ocular contention of PW1 in all material particulars, making it clear that ‘A’ schedule property was devolved upon Dawala Mallaiah from his vendor.

10.According to PW1, subsequently after long passage of time, his father Dawala Mallaiah died intestate, leaving behind all the three sons i.e., himself, father of DW1 namely Dawala Polaiah and the third defendant i.e., CW1 respectively. Above said facts stand undisputed by DW1 also, since recitals of Ex.A3 certified copy of registered sale deed, dt.19-03-2014 executed by DW1 in favour of

DW2, altogether reiterates the source of acquisition of ‘A’ schedule property by Dawala Mallaiah who happened to be their father. It is the plea of PW1 that soon after the death of their father Dawala

Mallaiah who died intestate, ‘A’ schedule property was divided into three equal shares among all the three sons, who had taken one part each and that the father of DW1 had taken ‘B’ schedule property, which is described as a vacant site with thatched house.

PW1 has reiterated his contention that at the time of division, it was agreed that if any of one the brothers intends to sell his share, the same has to be initially offered to other two brothers who intend to 7 purchase the same and if both of their brothers do not show any interest, then the said property may be sold to outsiders and to that effect, an agreement, dt.08-02-1999 was executed among himself,

CW1 and father of DW1 by name Dawala Polaiah respectively. A careful reading of entire recitals of Ex.A2 an agreement, dt.08-02-1999 relied upon by PW1, which is titled as “family settlement deed” said to have been reduced into writing was duly executed on 08-02-1999 by all the three sons of Dawala Mallaiah with an agreement that their ancestral property was inherited from their common father Dawala Polaiah, agreed to be divided into three equal parts along with PW1, CW1 and father of DW1 respectively.

Interestingly the right of preemption was also clearly made reference in the said document i.e., Ex.A2 to the effect that if one of the parties intends to sell his share, said to be devolved in the said family settlement, has to offer the same to other two brothers and if they failed to purchase the same, then the said sharer is entitled to sell his share of property to outsiders. The thumb impression as well as signature of all the three sons of Dawala Mallaiah are conspicuously present over the said un-registered family settlement deed marked as Ex.A2. A careful reading of entire recitals of Ex.A2 altogether point out that at the time of partition, an agreement was entered among PW1, CW1 and father of DW1, duly incorporating the right of preemption to be exercised by any of them in case they intend to sell their respective share of property with an object that their property should not go to outsiders. The contents of Ex.A2 also stand proved in the form of relying upon the testimony of CW1 who happened to be the third defendant herein, as he was summoned by the plaintiff/PW1 during the course of trial proceedings.

11.Initially both contesting defendants pleaded in their written statement that they were not aware of execution of Ex.A2, however the said fact was found to be a false theory as certain crucial admissions were elicited from DW1 and DW2 to that effect.

The authenticity of Ex.A2 was tried to be disputed by DW1 in the form of raising their objection that the said document, being un- registered is hit by provisions under Section 17 of Indian

Registration Act, as the rights of parties in respect of immovable properties were transferred in the said document, as such the said 8 document cannot be looked into. An alternative plea of forgery was also pleaded by DW1 to the effect that Ex.A2 document is created by PW1 and that it was never executed by his father Dawala Polaiah as contended by PW1. It is apt to mention here that during the course of trial proceedings, the said document Ex.A2 being un- registered was objected for marking the same. Accordingly, the plaintiff had taken steps in the form of payment of deficit stamp duty and penalty before the court with a plea that the said document can be received in evidence for collateral purpose to prove the fact of execution of agreement among himself and his two brothers. Upon imposing penalty which was promptly paid by PW1, the said document was admitted into evidence, duly holding that the said document can be looked into for collateral purposes. Since the requisite stamp duty said to be paid by PW1 as required by the statute, he being one of the parties to the said document has promptly complied, as such the said family settlement deed marked as Ex.A2 was received in evidence as no objection was raised by contesting defendants. The admissibility and relevancy of receiving

Ex.A2 family settlement deed for collateral purpose as contended by PW1 with a plea to appreciate the contents therein for collateral purpose is tried to be substantiated by the learned counsel for plaintiff by placing a reported citation in Javar Chand and others

Vs. Pukhraj Surana – AIR 1961 SC 1655, wherein their Lordships held that “once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross examination of their witnesses, the provisions of Section 36 of the

Stamp Act will come into operation. Once a document has been admitted in evidence, it is not open to trial court or a court of appeal or revision to go behind the said order.” In reported citations (1)

Seeram Tirapathamma (died) per L.Rs.and others in

Nageswara Rao and others – 2019 (3) ALD 75 wherein it was held that “in view of amendment to Section 49 of Registration Act by A.P.Act 4, 1999 which had come into force from 01-04-1999 requiring an agreement of sale of immovable property of value of

Rs.100/- and upwards requires registration, and whereas Ex.A2 was executed on 08-02-1999, as such being the said document as un- registered can be looked into for collateral purpose.” and (2) In 9

Shyamal Kumar Roy Vs. Susheel Kumar Agwaral – 2007 (1)

ALD 38, wherein their Lordships held that “if a party to the lis intends that an instrument produced by the other party being insufficiently stamped should not be admitted in evidence, then he must raise an objection there to at appropriate stage. He may not do so only at his peril.” Admittedly, upon raising a serious objection by the court making it clear that Ex.A2 was insufficiently stamped, the same was cured by PW1 in the form of payment of deficit stamp duty and penalty as imposed by the court. The learned counsel for plaintiff further argued that the object of Section 17 of Registration

Act and its effect was elaborately discussed in reported citation

Tirumala Venkata Reddaiah Chowdary and another Vs. Potla

Krishna Prasad and another - 2009 (4) ALD 191.His Lordship while interpreting Section 17 of Registration Act, 1908 held the concept of registration of document by itself creates no new title nor does it decide title of person executing the document, however merely records the transaction and an information is passed to people at large regarding legal rights and obligations arising or affecting particular property, which in future would be of legal importance and prevent playing of fraud.”

12.Another attempt was made by DW1 duly taking a plea that Ex.A2 is a forged document in disputing the thumb impression of his father Dawala Polaiah present over the said document, however the same could not be discharged due to the failure by

DW1 in taking an admission that he has no means to forward the said document for proving the plea of rank forgery. Admittedly,

DW1 made a clear mention in his written statement urging that

Ex.A2 is forged and fabricated document. When DW1 has specifically pleaded the theory of forgery, it is settled law that he has to prove the same. However, DW1 has failed to initiate proper steps in discharging the plea of forgery, but, on the contrary, he simply remained silent, which itself cannot be equated with the theory of discharging the said plea. The execution of Ex.A2 stands altogether proved, as CW1 being one of the parties to the said document took a consistent view that he along with PW1 and father of DW1 had come to a mutual understanding and thereafter executed the family settlement deed in the form of an agreement 10 duly incorporating the right of pre-emption in it. Both contesting defendants tried to disprove the consistent stand of CW1 in executing Ex.A2 along with his two brothers by way of suggesting that they have resorted to create the thumb impression of the father of DW1 by forgery, however they could not succeed in eliciting any favourable reply to substantiate their line of contention.

On the above fact, the learned counsel for plaintiff relied upon a reportedcitationinPidikiti Venkatarathnam Vs.

Dr.Ramanavarapu Sampath Kumar and another - 2020 (5)

ALD 387, which covers a similar situation, and imposes a burden upon a party who takes the plea of forgery has to discharge the said burden. It was also held that “if the said party fails to discharge the said plea, the consequence should follow to hold the genuineness of the said document can be proved.” But for the failure committed by

DW1 without resorting to discharge the plea of forgery of thumb impression of his father Dawala Mallaiah alleged to be present on

Ex.A2, coupled with his failure to elicit favourable replies from PW1 and CW1 in that regard, would clearly demonstrate that a family settlement had taken place among PW1, CW1 and father of DW1 under execution of Ex.A2 which contains the description of exercising the right of pre-emption among them, as such it is binding on all the parties to the said document. It is needless to observe here that the term “party” also includes his legal representatives. Above said legal position is reiterated in a reported citations (1) Babu Ram Vs. Santokh Singh (deceased) through his L.Rs.and others – AIR 2019 SC 1506 to the effect that “keeping in view of the objective that a preferential right was conferred upon remaining heirs, in case any of the heirs was desirous of transferring his interest in the property that he received by way of succession under the Act.” The learned counsel for plaintiff relied upon reported citation (2) Ram Bharan Prasad Vs.

Ram Mohit Hazra and others – AIR 1967 SC 744, wherein their

Lordships interpreted Section 27 (B) of Contract Act, made an observation that “a contract in the absence of contrary intention express or implied, will be enforceable by and against the parties and their legal heirs and legal representatives including assignees and transferees”.

11

13.An effort was made by PW1 in relying upon the testimony of PW2, a third party said to be present at the time of execution of Ex.A2 document. The testimony of PW2 placed on record altogether corroborates with the contention of PW1 to the effect that he was present at the time of execution of Ex.A2, wherein it was agreed by all parties that consequent to the division of ‘A’ schedule property into three shares, a written condition was imposed that if any of the brothers intends to sell his share, initially it has to be offered to other two parties who would be willing to purchase the same. Admittedly, above said witness had no occasion to contribute his signature over Ex.A2 document. An effort was made by the contesting defendants to disprove the role of PW2 as stated supra. Admittedly, PW2 had attained 68 years of age and that he is involved in conducting skin business at Srikalahasthi.

Interesting replies furnished by PW2 while facing the test of cross examination, make it clear that the said witness seems to be having exclusive knowledge about the status of all parties to the suit. However, PW2 has expressed ignorance about the execution of

Ex.A3 registered sale deed, dt.19-03-2014 between DW1 and DW2 for Rs.1,50,000/-. At one point of time, PW2 acknowledged that

DW2 had purchased portion of ‘A’ schedule property, however he could not divulge the exact details. When the attention of PW2 was invited in disputing the right of preemption incorporated under

Ex.A2, and he clearly denied the same. On the whole, the status of

PW2 making his presence at the time of execution of Ex.A2 family settlement deed seems to be convincing and reliable, as his presence at the time of execution of Ex.A2 document, stands altogether undisputed and thereby to hold that PW1 has successfully demonstrated that the testimony of PW2 relied upon by him is worthy of credence.

14. The testimony of PW1 continues to be on the verge that

DW1 had violated the pre-emptive condition stipulated under Ex.A2, which is binding upon all parties, however without his knowledge and consent, had executed Ex.A3 registered sale deed, dt.19-03-2014 in favour of DW2 by receiving consideration of

Rs.1,50,000/- and sold away his share i.e., ‘B’ schedule property and 12 the said act of DW1 coupled with the execution of Ex.A3 registered sale deed is not valid and binding upon him, as he got the right of preemption over ‘B’ schedule property. In categorical terms, PW1 pleaded that he is always ready and willing to purchase ‘B’ schedule property even according to prevailing market value or as per the rate fixed by this court. To substantiate his contention. PW1 relied upon Ex.A3 certified copy of registered sale deed executed by DW1 in favour of DW2 as well as Ex.A4 encumbrance certificate, dt.14-11-2014 issued by the Sub Registrar, Srikalahasthi. Entire recitals of Ex.A3 and Ex.A4 altogether corroborate with the ocular contentions of PW1, making it clear that DW1 had executed Ex.A3 registered sale deed in favour of DW2 by receiving a valid consideration of Rs.1,50,000/- and sold away his thatched house bearing door No.12-55 of an extent of 51.33 square yards.

Admittedly, even as per recitals of Ex.A3, the Northern boundary said to be belonging to PW1. The rough sketch of ‘A’ schedule property described in plaint demonstrates that ‘B’ schedule property said to be belonging to DW1 has formed first part along with two other parties, referred as ‘C’ and ‘D’. Even according to the said rough sketch, ‘C’ schedule property belongs to PW1 located as

Northern side boundary.

15.PW1 continued his testimony that even after execution of Ex.A3 by DW1 in favour of DW2, the said ‘B’ schedule property has been under continuous possession and enjoyment by DW1 and thereby to hold Ex.A3 as a sham and nominal document. PW1 also stressed his contention that he had informed DW1 to exercise his pre-emptive right over ‘B’ schedule property as well as expressing his readiness to purchase the same and asked DW1 to get Ex.A3 registered sale deed cancelled, however, the same was refused by him. With the above said contention, PW1 tried to demonstrate his pre-emptive right over ‘B’ schedule property in the form of approaching this court by way of present suit.

16.Above said contentions of PW1 are tried to be disproved by his opponents i.e., DW1 and DW2 in the form of subjecting the above said witness to the test of cross examination. Initially, DW1 made an effort to substantiate his act of execution of Ex.A3 13 registered sale deed in favour of DW2 on the premise that the said document was executed by him to meet his medical needs and that it was witnessed by DW3 as one of the attestors to the said document. The role of DW3 as second attestor to Ex.A3 was put to the test of cross examination, as the said witness has altogether reiterated of making his presence at the time of sale transaction between DW1 and DW2. Admittedly, DW3 is a close relative to

DW2, and the said witness seems to be not present at the time of taking measurements of ‘B’ schedule property. However, he tried to fill up the said drawback, duly disclosing measurements of the said property. Even according to DW3, he was requested by both defendants to visit the suit schedule property at the time of taking measurements. On the whole, the presence of DW3 as a witness having acquaintance about the execution of Ex.A3 registered sale deed by DW1 in favour of DW2 seems to be reliable and convincing as his presence need not be suspected as tried to be portrayed by

PW1.

17.Per contra, an effort was made by DW1 to uphold his contention that prior to execution of Ex.A3 in favour of DW2, he had approached PW1 as well as CW1 in offering to sell ‘B’ schedule property. However, a low price of Rs.20,000/- was quoted by both of them, which was found to be unreasonable, for the said reason, he had to sell his share to DW2 under Ex.A3. It is interesting to observe here that above said contention of DW1 was never pleaded in the written statement placed on record. The attention of DW1 was also invited by the learned counsel for the plaintiff on the above said crucial facts. While giving replies, a clean admission was made by DW1 to the effect that his chief examination is altogether silent about the details of persons in whose presence he was offered the sale price at Rs.20,000/-. However, DW1 tried to cover up the said lacunae by taking plea that he has offered to sell ‘B’ schedule property to PW1 as well as CW1 in the presence of his brother in law

Mallaram Krishnaiah who was examined as DW4. Admittedly, the entire chief examination filed of DW1 placed on record is altogether silent to the said fact and thereby to hold that for the first time, the presence of DW4 was whispered by DW1, without making reference either in his chief examination or in written statement.

14

18.Admittedly, the written statement filed by both contesting defendants does not contain any whisper that prior to execution of Ex.A3, an offer was made to PW1 and CW1, and that a low price was offered to CW1. It is well settled principle that in the absence of pleading, any amount of effort of letting evidence could not suffice. It is settled law that a party to the suit is not permitted to lead evidence beyond the scope of pleadings filed by him and that he is not allowed to take the other party by surprise in the form of bringing new facts through evidence. Above said legal proposition is laid down in a reported citation Ramsarup Guptha

(dead) by L.Rs. Vs. Bishun Narain Inter College in AIR 1987

SC 1242, wherein their Lordships had an occasion to deal with a

similar situation, laid down the proposition of law holding that “the object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial, it is imperative that the party should state the essential material facts so that other party may not be taken by surprise.” Adverting to facts placed on record, a clean admission was made by DW1 to the effect that the written statement filed by him as well as his chief examination are altogether silent that the sum of Rs.20,000/- was offered by PW1 in the presence of others. Therefore, the attempt made by DW1 to introduce a new fact that he was offered a lower price towards purchase of ‘B’ schedule property is certainly out of the purview of pleading and hence, it cannot be looked into. On the other hand, the above said fact clearly demonstrates that DW1 was aware of the conditions stipulated under Ex.A2 which itself is sufficient to hold that the said witness is having knowledge as to the incorporation of right of pre-emption and therefore he is bound by the terms of the said agreement, as his status being the legal representative of the first executant.

19.The testimony of DW4 relied upon has travelled on similar lines to the effect that DW1 was attacked with paralysis in the year 2013. So as to meet medical expenses, DW1 had intended to sell ‘B’ schedule property, said to have approached DW4 to assist him. According to DW4, he had suggested his brother in law i.e.,

DW1 to sell ‘B’ schedule property either to PW1 or CW1, but in view 15 of quoting low price of Rs.20,000/-, he had advised DW1 to sell the property to outsiders, as a result, DW1 had sold away ‘B’ schedule property to DW1 for a consideration of Rs.1,50,000/- under Ex.A3 and delivered possession of the same. Above said contentions of

DW4 are tried to be disproved by the learned counsel for plaintiff, however the said witness has maintained a consistent stand. As replied by DW4, he along with PW1 and CW1 were only present at the time of offering ‘B’ schedule property by his brother in law/DW1.

An attempt was made in the form of suggesting DW4 that his testimony is not of worth credence in view of registration of crime against him on the allegation that DW4 had attacked his wife. For the reasons best known, the details of said crime was never suggested to DW4 and thereby to hold that the said attempt made by PW1 is of no consequence. As seen from replies furnished by

DW4 altogether point out that DW2 is having a house adjacent to ‘B’ schedule property. DW4 also added that ‘B’ schedule property is not under active possession and enjoyment of DW1 for the last seven years, but immediately he maintained that ‘B’ schedule property is under possession of DW2. Another attempt was made by PW1 in the form of inviting the attention of DW3 with a suggestion that

Ex.A3 is a nominal and sham document stands altogether disputed by the said witness.

20.The learned counsel for plaintiff vehemently argued that provisions of Section 22 of Hindu Succession Act, 1956 clearly mandates that PW1 is entitled to exercise the right of pre-emption in his favour. She added that for the first time, PW1 was aware of execution of Ex.A3 by DW1 in favour of DW2 after nine months and thereby PW1 had promptly filed the present suit within the period of limitation of one year as prescribed under Article 97 of Limitation

Act so as to enforce his right of pre-emption. Above said argument holds substance, as it is clear from the recitals of Ex.A3 that DW1 has resorted to execute Ex.A3 registered sale deed on 19-03-2014 in favour of DW2. Therefore, the present suit must be filed by PW1 on or before 18-03-2015 as prescribed under Article 97 of Limitation

Act, 1963. As per the endorsement present on plaint, it makes it clear that PW1 has presented the plaint on 28-11-2014 i.e. within the period of limitation.

16

21.The learned counsel for plaintiff advanced her argument on the premise that the right of pre-emption to be exercised by PW1 as well as his brothers was well incorporated under Ex.A2 which was also admitted by DW1 during trial proceedings, would altogether make it clear that the terms reduced into writing under Ex.A2 are also binding upon DW1. However, contrary to the above said position, the act of DW1 in executing Ex.A3 in favour of DW2 is altogether violative and ultravires on the part of DW1. To support hr argument on the right of pre-emption acquired by PW1 as per terms of Ex.A2 coupled with the provisions contained under Section 22 of

Hindu Succession Act, 1956 is tried to be substantiated in the form of relying upon following citations. (1) P.Srinivasa Murthy Vs.

P.Leelavathi and others – AIR 2000 Madras (DB) 516, (2)

Rathanlal Kanhaiyallal Bania and others Vs. Ramanujdas

Ramachandra and others – AIR 1944 Nagpur 187, (3) Ram

Tari and others Vs. Ratanchand and others – AIR 2019 HM

23, lastly(4) Velayudam Nair Vs. Narayaniamma – AIR 1957

Travancore 156 (DB). The sum and substance of the legal position laid down by their Lordships in the reported citations referred supra, would altogether points out that while interpreting

Section 22 of Hindu Succession Act, 1956 which covers the aspect of preferential right over immovable property, was clearly held to be an inherent right provided under statute. Their Lordships also held that a co-heir expressing his desire to purchase portion of their common property and if no material is available on record that

before finalizing the sale, they had taken into consideration of the

option exercised by a co-heir, then a suit for setting aside alienation is maintainable. It was also held by their Lordships in one of the citations that “circumstances under which a partition award was made, indicated that pre-emption clause was not a personal covenant between contracting parties, but it was a covenant binding on assignees or successors in interest of original contracting parties.” Adverting to facts coupled with admissions of both parties placed on record, as well as recitals of Ex.A2 altogether make it clear that the agreement reduced into writing and executed by PW1 along with his two brothers i.e., CW1 and father of DW1 respectively in categorical terms altogether expressed the mode of exercising 17 the right of pre-emption, which is binding upon all the parties to the said document. Therefore, the argument advanced by learned counsel for plaintiff to the effect that PW1 is entitled for right of pre- emption in respect of ‘B’ schedule property from DW1, holds merit.

22.Per contra, the learned counsel for defendants argued that the concept of pre-emption as pleaded by PW1 is a very weak right and the same can be defeated by a defendant by all lawful means. He adds that the right of pre-emption can be created by a contract which is dependent upon custom or upon a contract as the case may be and if it is disputed, then the plaintiff has to prove the same. He further argued that the right of pre-emption also violates fundamental rights guaranteed under Article 19 of Indian

Constitution and the said right was even held to be unconstitutional.

To sum up his argument, he relied upon reported citation (1)

Barasat Eye Hospital and another Vs. Kaustabh Mondal – DOJ

17-10-2017 rendered by Hon’ble Supreme Court of India. Their

Lordships while interpreting the right of pre-emption, had an occasion to discuss the previous rulings referred by the Hon’ble

Apex Court, making the position to be summarized under following terms: “(1) The right of pre-emption is not the right to the things sold, but a right to offer of a thing about to be sold. This right is called as primary or inherent right. (2) The pre-emptor has a secondary right or remedial right to follow the things sold, (3) It is a right of substitution, but not of re-purchase i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods such as the vendee allowing the claimant of a superior or equal right being substituted in his place.” Adverting to facts placed on record, the conditions 1 to 5 stipulated above have been successfully fulfilled by PW1 in the form of portraying his status as pre-emptor, claiming to be entitled to purchase ‘B’ schedule property which was originally allotted to the father of DW1. It is needless to observe here that the right of pre-emption was also got exercised by PW1 in the form of 18 purchasing the 1/3rd share of CW1 in the form of execution of Ex.A5 registered sale deed in favour of his two sons. The learned counsel for defendants further relied upon (2) Indirabai Vs. Nandakishore – AIR 1991 page 1055, wherein their Lordships held that “the provision in the Pre-emption Act requires a vendor to serve notice on persons having right of pre-emption is condition of validity of transfer and therefore a pre-emptor could waive it.” The testimony of PW1 coupled with the admission of DW1 placed on record, clearly points out that no prior notice in writing was issued by DW1 informing PW1 and CW1 that he is interested to sell his share of property inherited from his father to an outsider i.e., DW2. (3) In

Santhram and others Vs. Labsingh and others – AIR 1965

page 166, their Lordships held that “the law relating to pre- emption on the ground of vicinage was saved by Clause 5 of Article 19 and the same was held to be not void under Article 13 of the

Constitution. The learned counsel for defendants also relied upon (4)

Rambabu Chowdary and others Vs. Mt.Saraswathi Devi and

others – AIR 1963 Patna 144 wherein his Lordship while placing reliance upon the ruling of Hon’ble Apex Court to the effect that “the law pre-emption based on vicinage whether by virtue of any enactment or by virtue of custom in part this country is unconstitutional and cannot be given effect to.” Finally, the learned counsel for defendants relied upon reported citation Vijay Singh

Vs. Santhidevi and another – 2017 (8) SCC 837, wherein their

Lordships had placed reliance upon a reported citation Syam

Sundar 2001 (8) SCC 24 which had laid down certain principles holding that “a pre-emptor should possess the right to pre-empt on three days. (1) the date of sale, (2) the date of filing of the suit and (3) the date of passing of decree by the court at the first instance only.” Adverting to facts placed on record, it is clear from the plea taken by PW1 that he has a right to exercise the right of pre- emption as on the date of execution of Ex.A3 by DW1 in favour of

DW2 as well as the said right was continuing till the date of filing of the suit before this court, seems to be in full compliance with the legal requirements laid down in the reported citations i.e., Syam

Sundar as referred supra. In view of detailed discussion coupled with the legal position extracted supra, this court arrives at a finding 19 that the mandatory requirement of proving the right of pre-emption by PW1 in respect of expressing his willingness and readiness to purchase ‘B’ schedule property as per contractual terms under

Ex.A2 family settlement deed, stands well established and proved by PW1 by placing ocular as well as documentary proof on record.

Therefore, this issue is answered accordingly in favour of PW1, duly holding that he is entitled to exercise pre-emptive purchase ‘B’ schedule property from DW1.

23.ISSUE NO.2:: It is crystal clear from the testimony of

PW1 that he is interested to purchase ‘B’ schedule property under the strength of exercising right of pre-emption, however he could not succeed the same in view of sale of ‘B’ schedule property by

DW1 in favour of DW2 under execution of Ex.A3 registered sale deed, which has created a cause of action in his favour to file the present suit with a prayer to grant alternative relief to set aside

Ex.A3. Above said contentions of PW1 also stand corroborated by his brother, examined as CW1, who made a similar allegation to the effect that at no point of time, DW1 had informed them about his intention to sell ‘B’ schedule property. In categorical terms, both of them maintained their consistent stand that DW1 was fully aware of the pre-emptive condition stipulated under Ex.A2 under the said family arrangement. Per contra, DW1 has taken a plea for the first time in his evidence that he has offered ‘B’ schedule property, but due to quoting low price of Rs.20,000/- by PW1 and CW1 had constrained to sell the said property to DW2 under Ex.A3 by receiving consideration of Rs.1,50,000/-. As already observed supra, above said contentions of DW1 did not find place in the common written statement filed by both contesting defendants. In turn, DW2 also testified her plea, contending that she was a bonafide purchaser and that she had no knowledge about execution of Ex.A2 among her vendor and his junior paternal uncles. She categorically maintained her stand that execution of Ex.A3 had taken place at Sub Registrar Office, Srikalahasthi in the presence of

DW3 and that soon after execution of the said document, she had promptly taken possession and also took steps in getting mutated her name in the Municipal records and thereby she has been 20 enjoying ‘B’ schedule property with absolute title and continuous possession.

24.DW2 continued her testimony that even on the date of execution of Ex.A3, neither PW1 nor CW1 raised any objection in the form of producing Ex.A2 before her. Above said contentions of DW1 and DW2 were tried to be disproved by the learned counsel for plaintiff in the form of subjecting them to cross examination. A firm stand is maintained by DW1 and DW2 as vendor and purchaser duly maintaining that a sum of Rs.1,50,000/- was paid towards consideration, which is followed by immediate delivery of possession. The attempt made by the learned counsel for plaintiff suggesting that no consideration had passed on to DW1, did not yield any result. The attention of DW1 was also further invited that no possession of ‘B’ schedule property was handed over to DW2 till the date, however the same could not be admitted from the said witness.

25.DW2 continued her testimony on the premise that soon after execution of Ex.A3 registered sale deed in her favour, as per the oral understanding between herself and DW1, she had permitted her vendor/DW1 to reside in ‘B’ schedule property for a period of one year and thereafter, due to vacating the said premises by DW1, the thatched house was removed and at present, a vacant site is under her exclusive possession and enjoyment. Above said contentions of DW2 were tried to be disputed by the learned counsel for plaintiff, duly inviting her attention to produce a document, however DW2 clearly admitted that there was no written agreement between herself and DW1 to permit her vendor to reside in the said premises for one year upto 05-06-2015. An attempt was made by the learned counsel for plaintiff in the form of offering a suggestion to the effect that DW1 has been residing in ‘B’ schedule property till the date altogether stands disputed by the said witness.

The recitals of Ex.A3 encumbrance certificate issued by the Sub-

Registrar, Srikalahasthi altogether acknowledged the sale transaction between DW1 and DW1 as portrayed under Ex.A3, and also make it clear that soon after receipt of consideration of

Rs.1,50,000/-, the possession of ‘B’ schedule property was also 21 handed over to DW2 by the vendor/DW1. On the above said fact, the learned counsel for contesting defendants strenuously argued that in order to harass DW2, who is a bonafide purchaser, having no knowledge about the execution of Ex.A2, she has been dragged in the above proceedings under collusion between PW1 and CW1. He contends that the status of DW2 as bonafide purchaser of ‘B’ schedule property stands on upper footing when compared with that of intention of PW1 to exercise his right of pre-emption as per the terms reduced into writing under Ex.A2. He continued his argument that the right of pre-emption claimed by PW1 is a very weak right, which can be defeated by any legitimate methods and in the present suit, DW2 has successfully demonstrated that having paid agreed consideration to her vendor/DW1, she has successfully defeated the claim made by PW1 in the form of legitimate methods, as such PW1 is not entitled to seek the relief of setting aside Ex.A3 executed in her favour. To sum up his argument, he placed reliance upon a reported citation in Barasat Eye Hospital and another

Vs. Kaustabh Mondal, referred supra. It is clear from the rival contentions raised by both sides placed on record, point out that without giving written notice, DW1 had ventured to offer to sell ‘B’ schedule property to DW2 an outsider as she was prepared to pay the market value as on that date. It is the specific plea taken by

DW1 for the first time during trial proceedings that due to quoting low price of Rs.20,000/- by PW1 and CW1, he felt it proper to go for outside sale of ‘B’ schedule property to higher price rather than receiving low quoted consideration from his junior paternal uncles.

As already observed supra, DW1 has failed to specifically plead above said fact in his written statement, but for the said failure, the said contention of DW1 was negated by this court. The attention of

CW1 was also invited to the effect that a similar transaction had taken place in the family execution of Ex.A5 in favour of sons of

PW1, seems to be hit by lis-pendence, since the said transaction had taken place during the pendency of the above said suit. A careful reading of the recitals of Ex.A5 make it clear that during the pendency of the suit, CW1 also resorted to sell his 1/3rd share to the sons of PW1 as per the terms of the contract reduced into writing under Ex.A2.

22

26.The testimony of DW1 placed on record demonstrates that due to quoting of low consideration by his junior paternal uncles, had constrained him to approach DW2 to purchase his respective share i.e., ‘B’ for higher consideration. On the other side,

DW2 had promptly agreed for the sale price said to be quoted by

DW1, and consequently due to payment of sale consideration, her vendor/DW1 had executed Ex.A3 registered sale deed in her favour and immediate possession was delivered in her favour. Right from the first instance, DW2 has claimed herself as bonafide purchaser, and her status seems to be on better footing when compared to the status of PW1. The crucial issue arises for consideration before the court is in the event of appreciating the plea taken by PW1 in setting aside Ex.A3 registered sale deed, what would be the basis of equity that would be available in favour of DW2. In order to get clarity on the above issue, the pleadings referred in the plaint coupled with the testimony of PW1 placed on record have to be looked into. A clear mention is recited in the plaint to the effect that

PW1 is ready to purchase ‘B’ schedule property at the prevailing market rate, or in the alternative, the appropriate rate to be determined by this court. Admittedly, the sale transaction under

Ex.A3 between DW1 and DW2 had taken place on 19-03-2014 i.e., about six years ago in the event of conceding the plea of PW1 to set aside Ex.A3 registered sale deed executed by DW1 in her favour, naturally DW2 would be the sufferer, as she is expected to execute a registered sale deed in favour of PW1, since DW1 had lost his interest over ‘B’ schedule property by virtue of execution of Ex.A3 in favour of DW2. At that time, the sale consideration was fixed at

Rs.1,50,000/-. As laid down in the reported citation in Barasat Eye

Hospital and another Vs. Kaustabh Mondal referred supra, wherein it was held that preference being the essence of the right,

PW1 must establish superior right than that of vendee i.e., DW2 in the above suit. The effort made by DW2 in the form of placing her testimony as bonafide purchaser coupled with the right of acquiring her ownership over ‘B’ schedule property under Ex.A3 registered sale deed clearly points out she has placed sufficient evidence on record, demonstrating her superior status, said to be having acquired title over ‘B’ schedule property. In order to meet the ends 23 of equity, this court feels it proper duly holding that so as to exercise pre-emptive right by PW1, it is his legitimate duty to offer the prevailing market price in respect of ‘B’ schedule property on the date of passing of decree so as to enable him to seek the relief of pre-emption in the above said suit. By imposing the condition referred supra, this court feels that equities would be settled between PW1 and DW2. Hence, this issue is answered to the effect that PW1 is entitled to seek the alternative relief of setting aside

Ex.A3 registered sale deed executed by DW1 on a condition of expressing himself to be ready and willing to offer the present market value to DW2 in respect of ‘B’ schedule property, in case he is willing and intending to exercise his right of pre-emption, as pleaded by him in the above suit. Accordingly, this issue is answered.

27.ISSUE NO.3:: The testimony of PW1 placed on record further points out that inspite of execution of Ex.A3 registered sale deed, ‘B’ schedule property is under active possession and enjoyment by DW1 and thereby Ex.A3 registered sale deed has to be treated as sham and nominal document said to be created to defeat his pre-emptive right. Having pleaded so, an effort was made by PW1, duly inviting the attention of his opponents to substantiate his contention, however the said effort has altogether failed. Initially, DW1 has altogether disputed the fact that ‘B’ schedule property is under his active possession and enjoyment.

When the attention of DW1 was invited, a clean admission was made by the said witness that no document was executed between himself and DW2 in allowing him to stay in ‘B’ schedule property for a period of one year soon after execution of Ex.A3 registered sale deed. DW1 categorically disputed the suggestion that he is under active possession and enjoyment of ‘B’ schedule property, but altogether maintained a consistent stand that the possession of ‘B’ schedule property was already delivered to DW2 on the date of execution of Ex.A3 registered sale deed itself. Similar replies were also furnished by DW2 placed on record also make it clear that basing on oral understanding, she had permitted her vendor/DW1 to reside in ‘B’ schedule property from 04-06-2014 to 05-06-2015. She also disputed the fact that DW1 has been continuously residing in 24 ‘B’ schedule property till the date of filing of the suit. Recitals of

Ex.A3 also supported the above said contentions of DW1 and DW2, making it clear that soon after receipt of sale consideration, delivery of possession of ‘B’ schedule property was handed over to DW2 on that day itself.

28.The relief portion mentioned in the plaint at paragraph 11 points out that PW1 is seeking relief of permanent injunction, restraining DW1 from effecting delivery of possession of ‘B’ schedule property in favour of DW2. However, a careful reading and appreciation of the recitals of Ex.A3 and Ex.A4 coupled with the ocular evidence placed on record by both parties, make it clear that the delivery of ‘B’ schedule property had already taken place in favour of DW2 soon after execution of Ex.A3 by DW1. When it is clear that the delivery of ‘B’ schedule property had already taken place in favour of DW2, then the relief of seeking permanent injunction prayed by PW1 to restrain DW1 from effecting delivery of ‘B’ schedule property in favour of DW2 would not rise at all, as the possession had already passed on to DW2. On the above fact, the learned counsel for plaintiff relied upon a citation reported in

Ananthula Sudhakar Vs. P.Buchi Reddy – AIR 2008 SC 2033.

Admittedly, the facts reported therein are distinct, reporting that “the plaintiffs therein claimed possession purely based on the title through ‘R’ who claimed to be owner, in pursuance of oral gift without being carrying out any mutations. The facts placed on record are on different footing, demonstrating that Ex.A4 encumbrance certificate issued by Sub Registrar, Srikalahasthi altogether discloses the status of DW2 as claimant of ‘B’ schedule property under the strength of execution of Ex.A3 by DW1. As the status of DW1 is found to be without possession of ‘B’ schedule property on the date of filing of suit by PW1, as such it is held that

PW1 is not entitled for claiming permanent injunction from his opponents in the above suit as the interest in ‘B’ schedule property by DW1 had come to an end. Admittedly, it is not the case of PW1 that he had title or possession over ‘B’ schedule property. On the contrary, the name of DW2 was entered in Municipal records under

Ex.A4. Hence, it is clear that without having any title or possession over ‘B’ schedule property by PW1, he is not entitled to seek relief 25 of possession under the verge of exercising his interest over ‘B’ schedule property in the form of right of pre-emption. Therefore, this court arrives at a finding that in the absence of exercising a valid title or possession over ‘B’ schedule property, PW1 is not entitled to the relief of permanent injunction. Hence, this issue is answered against to the plaintiff.

29.ISSUE NO.4:: The cause of action arose in favour of

PW1 soon after execution of Ex.A3 by DW1 in favour of DW3 i.e., on 19-03-2014 within the prescribed period of limitation, as this suit was filed by PW1 on 28-11-2014 seeking relief to exercise his right of pre-emption as per terms of Ex.A2, so also under Section 22 of

Hindu Succession Act, 1956. Therefore, it can safely be held that the institution of present suit by PW1 under the strength of Ex.A2 which is binding on all the parties to the said document has given a cause of action in favour of PW1 soon after the execution of Ex.A3 by DW1 in favour of DW3 over ‘B’ schedule property. Therefore, this issue is answered in favour of PW1, holding that he has proved the right of cause of action to file the suit.

30.The learned counsel for contesting defendants vehemently argued that PW1 has failed to value the suit properly, as such the suit is liable for dismissal. To sum up his argument, he relied upon a reported citation in Amalendu Sahu Vs. Oriental

Insurance Company Ltd., - 2010 SAR Civil 402, which deals with legal principle that “in case a non executant seeks annulment of deed, he is duty bound to seek a declaration that the deed is invalid and that it is not binding upon him and the ad-valorem court fee is paid on the consideration stated in the sale deed.” Facts coupled with the particulars of valuation referred in the plaint discloses that PW1 has shown the market value of ‘B’ schedule property at Rs.1,50,000/- as per the recitals of Ex.A2 and thereby he paid court fees as per provisions under Section 37 of A.P.Court Fees

Act. For declaration of pre-emptive right, PW1 has valued the said relief at Rs.1,00,000/- and, thereby he paid court fee under Section 24(d) of the said Act. It is clear that the plaintiff has valued the relief at Rs.1,00,000/- instead of valuing the said relief at Rs.1,50,000/-.

26

Therefore, the plaintiff is duty bound to pay the difference of court fee as stipulated of A.P.Court Fees and Suit Valuation Act.

31.ISSUE NO.5:: In view of foregoing discussion, this court arrives at conclusions as follows: The suit is partly decreed, duly holding that the plaintiff has succeeded in establishing pre-emptive right over ‘B’ schedule property, and thereby he is entitled to seek cancellation of Ex.A2 registered sale deed, dt.19-03-2014 executed by DW1 in favour of DW2 on a condition that the plaintiff shall offer the sale consideration of ‘B’ schedule property to DW2 as per the prevailing market rate as on the date of passing this judgment.

Upon such offer by plaintiff to the second defendant, she shall execute a fresh registered sale deed in respect of ‘B’ schedule property in favour of plaintiff. As far as granting consequential relief permanent injunction in favour of plaintiff, the same stands dismissed. Each party have to bear their own costs.

Dictated to the Stenographer of this court, transcribed by him,

corrected and pronounced by me in the open court, this the 30th day of September, 2020.

Senior Civil Judge,

Srikalahasthi.

Appendix of Evidence

Witnesses examined on behalf of the plaintiff:

PW1 : D.Venkatasubbaiah. PW2 :D.Cheeralaiah.

Witnesses examined on behalf of the defendants:

DW1 :D.Mohan. DW2 :R.Jayamma. DW3 :C.Venkateswarlu. DW4 :M.Krishnaiah.

Witness examined on behalf of the court:

CW1 :D.Venkatakrishnaiah.

Exhibits marked on behalf of the plaintiff:

Ex.A1 :Original registered sale deed, dt.31-03-1933 stands on the name of Dawala Mallaiah. Ex.A2 :Original stamped agreement, dt.08-02-1999. Ex.A3 : Certified copy registered sale deed, dt.14-11-2014 stands on the name of second defendant.

27

Ex.A4 :Encumbrance Certificate, dt.14-11-2014. Ex.A5 :Original registered sale deed, dt.10-11-12015 stands on the name of sons of plaintiff.

Exhibits marked on behalf of the defendants:

Nil.

S.C.J., SKHT

Fair judgment in

O.S.No.249/2014,

dt.30-09-2020

1

In the Court of the Assistant Sessions Judge :: Srikalahasthi

Present :: Sri M.Guru Nath,

Assistant Sessions Judge,

Srikalahasthi.

Wednesday, the Twenty eighth (28 th ) day of October, 2020

Calendar in Sessions Case No. 395 of 2018

P.R.C.No. 13 of 2018 of J.F.C.M., Srikalahasthi

Between

The State of Andhra Pradesh, represented by the Sub Inspector of Police, KVB Puram police station.

(Crime No.8/2017 of KVB Puram police station)

.. Complainant.

and

1. Vetti Gangaiah, S/o.Venkateswarlu, aged about 40 years.

2. Vetti Balaiah, S/o.late V.Krishnaiah, aged about 53 years.

3. Vetti Babu, S/o.Subbaiah @ Sivaiah, aged about 40 years.

4. Vetti Manikyam, S/o.late V.Krishnaiah, aged about 39 years.

5. B.Satyanandham, S/o.late Armugam, aged about 29 years.

6. Vetti Narayana @ Kodandan, S/o.V.Subbaiah, aged about 38 years.

7. Vetti Ishak, S/o.late Subbaiah, aged about 51 years.

8. Pushpa.

9. Rajamma.

10.Sakunthala.

11.Vetti Ramachandraiah, S/o.late Vetti Elumalai, aged about 71 years.

12.Vetti Nagabhushanam, SS/o.late V.Venkatesulu, aged about 46 years.

13.Arai Govindarajulu, S/o.late Kandaswamy, aged about 60 years.

14.Kodandan.

15.Vetti Ramesh, S/o.late V.Krishnaiah, aged about 26 years.

16.Vetti Gopi, S/o.Muragaiah, aged about 35 years.

17.Vetti Dhanaraj, S/o.late V.Pichaiah, aged about 46 years.

18.V.Ramaraj (died).

19.Endluru Mani, S/o.E.Srinivasulu, aged about 45 years. Olluru.

20.J.Mahee @ J.Mahendra, S/o.K.Jayavelu, aged about 32 years, door No.6/14, VOCS Street, Tiruthani town and Taluk.

2

21.Vetti Thirupal, S/o.V.Subbaiah, aged about 39 years. A1 to A13, A15 to A19 are residing at S.N.Kandriga H.W. @ Oluru Kandriga H.W., KVB Puram Mandal, Chittoor District.

.. Accused.

Date of offence ::14-02-2017 Date of complaint ::14-02-2017 Date of apprehension of accused ::14-02-2017 Date of taken on file ::07-05-2018 Date of commencement of trial::22-01-2020 Date of closure of trial::21-10-2020 Date of judgment ::28-10-2020

Name of offence:: Unlawful assembly armed with deadly weapons with common intention to do away the lives of public servants while they were discharging their official duties.

Section of law:: Sec.147, 149, 307, 332, 506 r/w.149 IPC

Finding of the court::::Found not guilty.

Sentence of order:::: In the result, A2, A4, A6, A7, A11, A12, A15, A17, A19 to A21 are found not guilty under Section 235 (1) Cr.PC and acquitted of charges framed under Sections 147, 148, 307, 332, 509 r/w.149 IPC in Crime No.8/2017 of KVB Puram police station. M.Os.1 to 8 are directed to be returned to the committal court and the same shall be destroyed upon expiry of appeal time. It is further directed that A2, A4, A6, A7, A11, A12, A15, A17, A19 to A21 as well as their sureties have to comply with the requirement of furnishing bonds as contemplated under Section 437-A Criminal Procedure Code and the same shall be in force for a period of six months from the date of passing of this Judgment.

Assistant Sessions Judge, Srikalahasthi.

In the Court of the Assistant Sessions Judge :: Srikalahasthi

Present :: Sri M.Guru Nath,

Assistant Sessions Judge,

Srikalahasthi.

3

Wednesday, the Twenty eighth (28 th ) day of October, 2020

Sessions Case No. 395 of 2018

P.R.C.No. 13 of 2018 of J.F.C.M., Srikalahasthi

Between

The State of Andhra Pradesh, represented by the Sub Inspector of Police, KVB Puram police station.

(Crime No.8/2017 of KVB Puram police station)

.. Complainant.

and

22.Vetti Gangaiah, S/o.Venkateswarlu, aged about 40 years.

23.Vetti Balaiah, S/o.late V.Krishnaiah, aged about 53 years.

24.Vetti Babu, S/o.Subbaiah @ Sivaiah, aged about 40 years.

25.Vetti Manikyam, S/o.late V.Krishnaiah, aged about 39 years.

26.B.Satyanandham, S/o.late Armugam, aged about 29 years.

27.Vetti Narayana @ Kodandan, S/o.V.Subbaiah, aged about 38 years.

28.Vetti Ishak, S/o.late Subbaiah, aged about 51 years.

29.Pushpa.

30.Rajamma.

31.Sakunthala.

32.Vetti Ramachandraiah, S/o.late Vetti Elumalai, aged about 71 years.

33.Vetti Nagabhushanam, SS/o.late V.Venkatesulu, aged about 46 years.

34.Arai Govindarajulu, S/o.late Kandaswamy, aged about 60 years.

35.Kodandan.

36.Vetti Ramesh, S/o.late V.Krishnaiah, aged about 26 years.

37.Vetti Gopi, S/o.Muragaiah, aged about 35 years.

38.Vetti Dhanaraj, S/o.late V.Pichaiah, aged about 46 years.

39.V.Ramaraj (died).

40.Endluru Mani, S/o.E.Srinivasulu, aged about 45 years. Olluru.

41.J.Mahee @ J.Mahendra, S/o.K.Jayavelu, aged about 32 years, door No.6/14, VOCS Street, Tiruthani town and Taluk.

42.Vetti Thirupal, S/o.V.Subbaiah, aged about 39 years. A1 to A13, A15 to A19 are residing at S.N.Kandriga H.W. @ Oluru Kandriga H.W., KVB Puram Mandal, Chittoor District.

.. Accused.

4

This case is coming on 21-10-2020 before me for final hearing in the presence of Sri P.Premkumar, Additional Public Prosecutor for the complainant, Kum.M.Subhasini, Advocate for A19 and A20 and Sri P.Venkatadri, Advocate for remaining accused, upon hearing on both sides and perusing the record, having stood over for consideration till this day, this court delivered the following:

JUDGMENT

The Sub Inspector of Police, KVB Puram police station laid charge sheet against the above accused persons, alleging commission of offences punishable under Sections 147, 148, 307, 332, 353, 323 r/w.506 IPC in Crime No.8/2017 on the file of his police station. The case of prosecution is briefly narrated as follows:

02.It is alleged that PW1 to PW4 and LW5 E.Gangadharam,

LW6 D.Dhananjaya and LW7 S.D.Sudheer Kumar were attached to red sandal wood task force to apprehend red sandal wood offenders.

Upon receipt of credible information about red sandal wood accused persons concerned in Crime No.7/2017 registered at B.N.Kandriga police station, PW1 accompanied by his staff members PW2 to PW4 and LW5 E.Gangadharam, LW6 D.Dhananjaya and LW7 S.D.Sudheer

Kumar reached KUN Puram village on 14-02-2017 at about 7-00 p.m.

and waiting for their arrival. Within short time, A19 and A20 reached the said place on their motor cycle, upon which they were successfully apprehended by PW1 and his staff members. Within short time, A21 also reached the said place, upon which he was questioned by PW1 for his arrival and A21 informed that he was asked by A20 to accompany them. Then, PW1 and his staff members apprehended A19 to A21 and took them into their custody.

(ii) While reaching to the parked place of their vehicle, suddenly A21 raised loud alarm that they were being apprehended by police officials. On hearing the same, the villagers, about 150 in number, armed with stones and knives, formed themselves into an unlawful assembly, with an intention to release A19 to A21 from the custody of police, attacked PW1 and his staff members. The said mob also abused them in filthy language and in the said attack,

PW2 was fisted on his chest and on his stomach. Immediately, PW1 and his staff members, tried to rescue themselves and in the 5 process of escape, when they reached near KVN Puram village at the house of Mohan Naidu at about 8-30 p.m., the said mob proclaimed to see the end of police officials. Taking advantage of the situation, A19 and A21 also joined said mob, escaped from the custody of police officials, attacked them and thereby PW1 had sustained injury on the eye. With great difficulty, PW1 and his staff members rescued their lives by leaving the said village.

(iii) Thereafter, a written complaint was presented by

PW1 at KVB Puram police station on the same day midnight at 12- 00 a.m. and the same was registered by PW11 as Crime No.8/2017 under Sections 147, 148, 307, 332, 353, 323 r/w.506 IPC and immediately entrusted the same toPW12 for causing investigation.

In turn, PW12 took up investigation, rushed himself to Area Hospital,

Srikalahasthi, secured the presence of injured persons i.e., PW1 to

PW4, and LW5 E.Gangadharam, LW6 D.Dhananjaya and LW7

S.D.Sudheer Kumar and reduced their statements into writing as per provisions of Section 161 (3) Cr.P.C. From there, he proceeded to the scene of offence situated at KVN Puram @ Bojjaiah Kandriga village, drawn rough sketch and noticed presence of stones and sticks said to be used as weapons at the time of alleged incident. To that effect, PW12 got scribed police proceedings at about 11-30 a.m. on 15-02-2017 and seized foru sticks and four stones from the scene of offence. Thereafter, PW12 had returned to KVB Puram police station, examined and recorded the statements of PW5 to PW7, LW10

C.Madhu, LW12 V.David, LW13 V.John, LW14 V.Jayaramaiah and

LW15 T.Doraswamy, examined them and recorded their statements as per provisions of Section 161 (3) Cr.P.C. Consequent to the transfer of PW12, his successor i.e.,PW13 resumed the investigation in the above crime.

(iv) During the course of investigation, upon receipt of credible information about the accused persons, PW13 along with his staff rushed to Sadasivapuram bus stop on 22-12-2017, found the presence of A2, A6, A7, A11, A12, A15, A17 and A21 and immediately they were arrested and brought them to the police station, completed the legal formalities of arrest and produced them on the same day before Judicial Magistrate of I Class, Srikalahasthi 6 seeking judicial remand as per provisions under Section 167 Cr.P.C.

On 22-12-2017, PW13 visited the scene of offence, secured the presence of witnesses as PW5 to PW7, LW10 C.Madhu and LW12

A.Doravelu, examined them and recorded their statements as per provisions of Section 161 (3) Cr.P.C. On 03-04-2017, wound certificates of PW1 to 3 issued by PW10 were collected. On 01- 05-2017, upon receipt of credible information, A4 was arrested at

Sadasivapuram bus stop, brought him to the police station, completed legal formalities of arrested and produced him on the same day before the Judicial Magistrate of I Class, Srikalahasthi seeking judicial remand. Similarly, A18 was arrested on b 05- 05-2017 at about 1-30 a.m. near Sadasivapuram bus stand by

PW13, brought him to the police station, completed legal formalities of arrested and produced him on the same day before the Judicial

Magistrate of I Class, Srikalahasthi seeking judicial remand. Again

on 07-06-2017 at about 9-00 p.m., upon receipt of credible information, PW13 along with mediators as PW8 and PW9 proceeded to Sadasivapuram bus stand premises and noticed the presence of

A20, upon which he was arrested under cover of confession cum arrest mahazarnama, duly scribed to that effect and attested by the above said witnesses. Immediately, A20 was brought to KVB Puram police station, brought him to the police station, completed legal formalities of arrested and produced him on the same day before the Judicial Magistrate of I Class, Srikalahasthi seeking judicial remand. During the course of investigation, A19 was produced

before the Judicial Magistrate of I Class, Srikalahasthi upon

execution of P.T.Warrant and he was remanded to judicial custody in the above crime. After completion of investigation, PW13 laid charge sheet against all accused persons rendering themselves liable for above said offences.

03.Upon consideration of entire material placed on record, the learned Judicial Magistrate of First Class, Srikalahasthi, took cognizance of offences punishable under Sections 147, 148, 307, 332, 353, 323, 506 r/w.149 IPC and ordered summons to A2, A4, A6, A7, A11, A12,

A15, A17, A18 to A21, respectively. As the alleged offence under

Section 332 IPC is exclusively triable by Court of Sessions, the case was numbered as PRC.13/2018. Upon appearance of A2, A4, A6, A7, 7

A11, A12, A15, A17, A18 to A21, statutory procedure as stipulated under Section 207 Cr.P.C. was complied with by the learned Magistrate.

Thereafter, necessary formalities of commitment of the case as required under Section 209 Cr.P.C. was completed by the learned

Magistrate duly committing the case to the Court of Sessions Division,

Chittoor. The Hon’ble District and Sessions Judge, Chittoor Division, took the case on file, numbered the same as S.C.395/2018 and made over the same to this court for disposal in accordance with law. In pursuance of said orders, the present case is taken up by this court.

04.Upon appearance of A2, A4, A6, A7, A11, A12, A15, A17,

A18 to A21, before this court, heard arguments of learned Additional

Public Prosecutor as well as Kum.M.Suhasini, learned defence counsel for A19 and A20 and Mr.P.Venkatadri, learned defence counsel for remaining accused respectively. After careful consideration of arguments of both sides coupled with perusal of entire material placed on record, as per provisions of Section 228 Cr.P.C., relevant charges of offences punishable under Sections 147, 148, 332 and 506 r/w.149 IPC were framed against A2, A4, A6, A7, A11, A12, A15, A17, A18 to A21, read over and explained to them in vernacular language, for which they denied above said charges, pleaded not guilty and claimed to be tried.

05.As per provisions of Section 230 Cr.P.C., the case is opened up for examination of prosecution witnesses. During trial proceedings, the prosecution relied upon testimonies of PW1 to PW13 supported by marking documents as Exs.P1 to Ex.P11 and produced material objects as MO1 to MO8, respectively. Upon closure of prosecution’s side evidence, the examination of A2, A4, A6, A7, A11, A12, A15, A17, A18 to A21 under Section 313 (i) (b) Cr.P.C., was complied with duly explaining the incriminating evidence appeared against them from the evidence of prosecution side witnesses and they denied same. They did not choose to let in defence evidence, nor mark documents on their behalf.

06.Heard arguments of the learned Additional Public

Prosecutor on behalf of the prosecution and Mr.P.Venkatadri, learned counsel for and Miss.P.Subhasini, learned counsel for all accused persons, respectively. The learned Additional Public Prosecutor opened the case of the prosecution at the time of arguments 8 contending that out of 13 witnesses examined by the prosecution, the injured persons cum victims examined as PW1 to PW4 have clearly attributed allegations against all accused persons to be guilty of attacking them while they were discharging their duties as public servants. He argued that the first information report, marked as Ex.P1 was promptly presented at KVB Puram police station without any reasonable delay and that the prosecution has successfully proved that PW1 toPW4 had sustained hurt from the hands of the accused persons in the form of examining PW1 by the doctor who had rendered treatment to the injured persons. While inviting the attention of the court, the learned Additional Public

Prosecutor continued his argument on the premise that though independent witnesses have turned hostile to their case, however the consistent testimonies of PW1 to PW4, supported by the evidence of PW11 and PW13 as investigating officers is sufficient enough to find guilty of all accused persons in the above crime.

With the above submissions, he requests to punish the accused persons of the respective charges framed against them in the above crime.

07.Per contra, Mr.P.Venkatadri, learned defence counsel refuted the entire submissions of his counterpart on the premise that the prosecution has failed to place any trustworthy evidence or documentary proof pointing out PW1 to PW4 were discharging their duties as public servants at the time of alleged incident. He adds that Ex.P1 complaint presented byPW1 consists of names of A3, A5,

A13 and A16 were purposefully included in the said report on the investigation conducted byPW12 placed on record clearly disproved the involvement of above said accused persons and thereby to arrive at a finding that Ex.P1 report itself is a false theory and the so called incident is doubtful. The learned defence counsel invited the attention of the court contending that PW1 toPW4 have failed to attribute specific overt acts against accused persons and that PW12 did not organize test identification parade of accused persons so as to get them identifiedbyPW1 to PW12 and the said drawback is also fatal to the case of the prosecution. Another line of contention is demonstrated on the premise that the defective investigation conducted byPW12 is not safe enough, as he did not secured the 9 presence of independent witnesses at the time of so called seizure of weapons from the scene of offence. Similarly, Miss.P.Suhasini, learned defence counsel for A19 and A20 advanced her arguments contending that the prosecution has purely based on the testimonies of police officials as PW1 toPW4 and their testimonies are not supported by independent witnesses examined as PW5 to

PW7. She add that the apprehension of A20 as claimed yPW12 under cover of mediators’ report is also lacked by independent corroboration as PW8 and PW9 turned hostile to the case of the prosecution. The attention of the court is invited to the effect that no piece of document is placed on record by the prosecution to the effect that the involvement of A19 and A20 is made out in Crime

NO.7/2017 registered at B.N.Kandriga police station and for the said drawback, the prosecution cannot claim that PW1 to PW4 were discharging their duties as public servants at the time of alleged incident. Finally, both learned defence counsel concluded their arguments on the premise that the prosecution has failed to prove the involvement of all accused persons to be guilty of attacking PW1 to PW4, as there was no proper explanation about the deletion of other offenders said to be 150 in number alleged to be participated as claimed in the first information report. With the above said contentions, they request the court to acquit all accused persons of respective charges framed against them.

08.Now the point for determination is ::

Whether the prosecution succeeded in

proving its contention leveled against all

accused persons beyond all reasonable doubt

that they formed themselves into an unlawful

assembly, armed with deadly weapons were

guilty of attacking PW1 to PW4 on

14-02-2017 at about 8-30 p.m. near KVN

Village of KVB Puram mandal ?

09.POINT:: In order to prove the alleged incident, the prosecution relied upon testimonies of PW1 to PW4, who happened to be the police officials. Even according to the case of the prosecution, PW1 was working as S.I.of Police, who was entrusted with the task force duty to detect and nab sandal wood offenders and that on the date of alleged incident, he was accompanied by

PW2 to PW4 as subordinate officials to assist him. The testimony of 10

PW1 in the capacity of first informant demonstrates that on 14-02- 2017 at about 7-00 p.m., upon receipt of credible information about offenders required in Crime No.7/2017 of B.N.Kandriga police station, he claimed to have taken the assistance of PW2 to PW4 as well as LW5 E.Gangadharam, LW6 D.Dhananjaya and LW7

S.D.Sudheer Kumar, all of them proceeded to the outskirts of KVN

Puram village in their vehicle. While unfolding the events, PW1 contended that having stopped their vehicle at the outskirts of KVN

Puram village, all of them proceeded to the agricultural lands situated at Uluru Kandriga village, while waiting for some time, they had noticed arrival of a motor cycle driven by A19 and A20, who were required as offenders in Crime No.7/2017 of B.N.Kandriga police station. According to PW1, immediately, A19 and A20 were taken into their custody and within short time, they also noticed the arrival of A21 on his motor cycle, upon questioning, who in turn disclosed that he was asked by A20 to accompany them. PW1 added that after taking the above said persons i.e., A19 to A21 into their custody, while returning to KVN Puram village, immediately

A21 raised loud alarm, upon which villagers of Siddamanaidu

Kandriga and Uluru Kandriga, numbering about 150 members, armed with knives and sticks, tried to attack them. While attributing overt acts, PW1 contended that inspite of revealing their identity as police officials, the said mob continued to attack them and in the said process, PW2 sustained injuries on his stomach and on the left leg, upon which they tried to save their lives, when reached near the house of one Mohan Naidu, the said mob again proclaimed to kill them and taking advantage of the said situation,

A19 to A21 had also joined the said mob with an intention attack all police officials. PW1 specifically attributed that he was attacked by the said mob, as a result, he sustained injury to his left eye and with great difficulty, all of them ran away from the said place, after returning to KVN village, he claimed to have caused enquiry about the identity miscreants, wherein it came to light that A1 to A4, A6,

A7, A11, A13, A15 to A17 and others were guilty of attacking them.

Finally, PW1 maintained that after reaching KVB Puram police station, a written complaint as in Ex.P1 was presented by him on the same mid night and he promptly identified his signature present on

Ex.P1 report.

11

10.Above said contentions of PW1 stand corroborated by the testimony of PW11 acted as Station House Officer at KVB Puram police station at the relevant point of time duly taking a plea that on 14-02-2017 at about 12-00 midnight, while he was acting as Station

House Officer at KVB Puram police station, Ex.P1 written complaint was presented by PW1 along with his staff and the same was registered by him as Crime No.8/2017 under Ex.P8 duly invoking provisions under Indian Penal Code and entrusted the investigation to PW12. A close reading of entire recitals of Ex.P1 report promptly contained the written endorsement made by PW11 in the capacity of Station House Officer at KVB Puram police station. Above said role of PW11 has altogether remained unshaken even after suggesting the said witness that he had no occasion to receive Ex.P1 complaint from PW1.

11.Above said contentions of PW11 stand corroborated by the testimony of PW12 worked as S.I.of Police, Puttur police station and incidentally acted as in-charge of KVB Puram police station at the time of alleged incident. According to PW12, as per the directions from the Sub Divisional Police Officer, Puttur, he claimed to have taken up investigation in the above crime on 14-01-2017 under the strength of Ex.P1 registered by PW11 and immediately claimed to have rushed himself to Area Hospital, Srikalahasthi, secured the presence of PW1 to PW4, LW5 E.Gangadharam, LW6

D.Dhananjaya and LW7 S.D.Sudheer Kumar, examined them and recorded their statements as per provisions of Section 161 (3)

Cr.P.C. He added that from there, he claimed to have rushed to the scene of offence situated at KVN Puram @ Bojjaiahkandriga village and drawn rough sketch under Ex.P9. Interestingly, the rough sketch marked as Ex.P9 said to be prepared by PW12 is altogether silent in specifying the scene of incident. According to PW12, while examining the scene of offence, he had noticed presence of four stones and four sticks and same were under the cover of Ex.P10 scene observation cum seizure mahazarnama under the proceedings, dt.15-02-2017 scribed at 11-30 a.m. The prosecution made an effort in producing four sticks and four stones and marked the same as MO1 to MO8 while examining PW12 at the time of trial 12 proceedings. The role of PW12 is confined to the above said extent and his testimony was subjected to the test of cross examination by the learned defence counsel. Initially, the attention of PW12 was invited to disclose the manner of reducing the statements of PW1 to

PW4 at Area Hospital, Srikalahasthi and the said witness has reiterated his stand that the statements of PW1 to PW4 reduced into writing at the hospital. On the above fact, the attention of the court is invited by the learned defence counsel contending that the statements of PW1 to PW4 as well as LW5 E.Gangadharam, LW6

D.Dhananjaya and LW7 S.D.Sudheer Kumar said to be recorded by

PW12 as per provisions of Section 161 (3) Cr.P.C. were typed in

Telugu language by making use of a computer and if the said fact is taken into consideration, the contention of PW12 has to be disbelieved. While facing cross examination, PW12 could not offer any valid explanation, duly demonstrating that he was well prepared along with required paraphernalia like computer along with printer so as to reduce the versions of PW1 to PW4 as well as LW5

E.Gangadharam, LW6 D.Dhananjaya and LW7 S.D.Sudheer Kumar at

Area Hospital, Srikalahasthi into typewritten form on 15-02-2017 as claimed by him. Mere denial by PW12 that the so called statements of PW1 to PW4 and LW5 E.Gangadharam, LW6

D.Dhananjaya and LW7 S.D.Sudheer Kumar were prepared at the hospital would not suffice, as primarily the so called statements clearly demonstrate that the versions of prosecution witnesses as stated above were type written in Telugu language by making use of a computer. Therefore, the contention of PW12 that he had recorded the statements of prosecution witnesses at the Area

Hospital, Srikalahasthi appears to be not convicting and inspiring faith in the said statement.

12.The prosecution also relied upon testimonies of PW2 to

PW4 said to be eye witnesses to the alleged incident and incidentally they happened to be the subordinate police officials who had accompanied PW1 to KVN Puram village as reiterated by the prosecution. The testimonies of PW2 to PW4 placed on record also travelled on similar liens to the effect that on 14-02-2017 at about 7-00 p.m., while they were assisting PW1 to nab offenders at

KVN village, resulted in apprehension of A19 to A21 and on their 13 return journey to the village, a mob, consisting of 150 members said to be guilty of attacking them with stones and sticks. PW2 specifically attributed that due to the said attack, PW1 sustained injuries to his left eye and he was attacked by the said mob and caused injuries on his chest and left ankle due to hitting by a stick.

According to PW2, the mob consisted of A2, A4, A6, A7, A11, A12,

A15, A17, A19 to A21 were guilty of attacking him and other police officials on that day and he conspicuously added that within short time, they were rescued by local residents and shifted them to KVB

Puram police station, which has resulted in presenting Ex.P1 complaint by PW1. PW2 concluded his version that they were shifted to Area Hospital, Srikalahasthi for medical treatment.

13.The testimony of PW3 found to be on similar lines with that of PW1 and PW2 demonstrates that due to the attack by mob, consisting of 150 members, he claimed to have sustained injuries to his left eye and backside of right shoulder and that soon after the alleged attack, the entire mob along with A19 to A21 said to have escaped from the said place. PW3 also maintained a similar version in pointing out accusation against all accused persons to be guilty of attacking him by joining with other persons. Finally, PW3 contended that soon after presentation of Ex.P1 report, they were shifted to

Area Hospital, Srikalahasthi for medical treatment. The testimony of

PW4 worked as police constable at West police station, Tirupati also revealed a similar version to the effect that while they were returning to KVN village along with A19 to A21, a mob, consisting of 150 members, armed with knives and sticks attacked them. PW4 continued that in the meanwhile, PW1 made a telephone call to local police officials for help and within short time, they were rescued by local police officials and thereafter they were taken to

KVB Puram police station and that Ex.P1 report was presented by

PW1. PW4 also pointed out accusation against A19 to A21 and others to be responsible for attacking them on that day.

14. The prosecution also relied upon testimonies of PW5 to

PW7 as independent witnesses said to be residing at KVN Village to speak about the alleged incident. Interestingly, all the above said witnesses altogether contradicted their presence at the time alleged 14 incident as eye witnesses and turned hostile to the case of the prosecution. Initially, PW5 contended that he was not present at the time of alleged incident and whereas PW6 claimed that he was taking dinner at his residence and heard loud voice and finally PW7 maintained that he was returning from fields at about 7-00 p.m. and for the same reason, he could not witness the alleged incident.

Above said contradictory versions deposed by PW5 to PW7 were tried to be cross examined by the learned Additional Public

Prosecutor after obtaining permission from the court as per the provisions under Section 145 of Indian Evidence Act and during the course of cross examination at PW5 to PW7 they had altogether disputed the fact that they had narrated their versions, marked as

Ex.P2 to Ex.P4 to PW12 said to be recorded as per provisions of

Section 161 (3) Cr.P.C. Therefore, it is clear that the prosecution could not succeed in placing independent corroboration in proving the fact that PW1 to PW4 were attacked by all accused persons with sticks and stones in the presence of above said eye witnesses.

15.Nextly, the attention of PW12 was further invited to disclose the seizure of weapons marked as MO1 to MO8 under cover of Ex.P10 police proceedings. A careful reading of entire recitals of

Ex.P10 titled as “scene observation cum seizurenama” as “police proceedings” said to be scribed by PW12 on 15-02-2017 at about 11-30 a.m. near cross roads at KVN Palli village. For the reasons best known, PW12 has never attempted to utilize the services of local officials at KVN Palli village at the time of seizure of MO1 to

MO8. When his attention was specifically invited for the failure to affix slips over the seized material objects marked as MO1 to MO8, a clean admission was made by the said witness that he did not affix any slips over the seized material objects, marked as MO1 to MO8.

As per the various pronouncements of Hon’ble Apex Court, a duty is cast upon the police official who is entrusted with task of investigating officer has to take sufficient precautions while effecting seizure of incriminating material objects from the scene of offence like obtaining photographs, effecting seizure of incriminating materials in the presence of two local inhabitants of the said place so as to substantiate his line of investigation. Quite interestingly,

PW12 appears to have lost sight of his attention to comply the 15 mandatory requirement as discussed supra, during the process of investigation at the time of his visit to the scene of offence on 15-02-2017, as claimed by the said witness.

16.The attention of PW1 was also invited on the above said fact and he claimed that he was under the control of Deputy

Superintendent of Police, Red Sandalwood Task Force, Tirupati as on the date of alleged incident. In specific terms, PW1 maintained that on oral instructions, he along with his staff visited KVN Puram village on the day of alleged incident to apprehend A19 and A20 in Crime

No.7/2017. Therefore, PW1 himself clearly admitted that there was no documentary proof in his favour to apprehend A19 and A20 in

Crime No.7/2017 of KVB Puram police station on the date of his visit to KVN Puram village on 14-02-2017 at about 7-00 p.m. Even otherwise, PW1 himself claimed that he along with his staff were not wearing uniforms at the time of alleged incident, which stands contradicted by PW2 to PW4, who have maintained a different version that they were wearing uniforms at the time of incident.

The stand taken by PW1, discussed supra, altogether make it clear that the said witness along with the subordinate officials made their visit to KVN Puram village so as to apprehend the offenders and found A19 and A20 said to be required in Crime No.7/2017 at

B.N.Kandriga police station is not supported by any piece of document like case diary entries or first information report registered in B.N.Kandriga police station and thereby makes it clear that the prosecution has utterly failed to place any convincing proof to satisfy the ingredients of Section 332 IPC to the effect that that

PW1 to PW4 along with LW5 E.Gangadharam, LW6 D.Dhananjaya and LW7 S.D.Sudheer Kumar fall within the purview of public servants at the time of alleged incident.

17.The attention of PW2 was invited by the learned respective defence counsel to test his veracity on the so called allegations and specific overt acts levelled against all accused persons. According to PW2, on that day, at about 5-00 p.m., they had left Tirupati town in their police vehicle and reached KVN Puram village for the first time and he claimed that they have passed through KVB Puram police station. He also maintained his version 16 that their vehicle was driven by a police constable by name Chandu and an interesting observation was also made that he was wearing police uniform. A similar version is also maintained by PW3 while facing the test of cross examination contending that for the first time, they had visited KVN Puram village under the instructions from

PW1 and he also maintained that he was wearing uniform at the time of alleged incident. The testimony of PW4 placed on record also maintained a similar stand to the effect that he along with PW1 were present in uniform at the time of alleged incident. If the above said versions of PW2 to PW4 who have claimed themselves to be in uniform at the time of incident is taken into consideration, would altogether contradicts with the testimony of PW1 who had maintained that they were not in uniform at the time of alleged incident. Therefore, it is clear that the prosecution witnesses have failed to maintain a uniform stand so as to arrive at justifiable finding by this court that prima facie material is available to hold that PW1 to PW4 were discharging their duties as public servant at the time of alleged incident. Adding to that, PW12 appears to have lost sight of the fact to collect necessary documents like copies of first information report in Crime NO.7/2017 registered at

B.N.Kandriga police station as well as the case diary entries said to be maintained by PW1 in the capacity of investigating officer in the said crime so as to find out the authenticity of the involvement of

A19 and A20 in a registered crime, but for the said failure to collect sufficient convincing documentary proof, as stated supra, it cannot be said that the prosecution has successfully proved the essential ingredients of the offence charged under Section 332 IPC to the effect that PW1 to 4 were discharging their duties as public servants at the time of alleged attack.

18.So far as other allegation leveled against all accused persons to be guilty of sharing their common intention to see the end of lives of PW1 to PW4, an effort was made by the prosecution in relying upon testimonies of PW1 to PW4 claimed to be victims and their versions placed on record, appears to be not sufficient enough to arrive at safe conclusion. Initially, PW1 maintained that due to the attack from the mob, he sustained injury on his left eye.

In his entire testimony, PW1 could not point out his finger against 17 any one of the accused person for causing such injury. When his attention was invited, he replied that he was not in a position to attribute specific overt acts against each accused person who claimed to be guilty of attacking them. Similarly, an attempt was made by the learned defence counsel towards PW2 to PW4 by inviting their attention that due to their failure to attribute specific overt acts in disclosing identity of each accused persons to be guilty of causing injuries, hence their versions placed on record cannot be accepted. While facing the test of cross examination, clean admissions were made by PW2 to PW4 to the effect that due to darkness, they were not in a position to identify each accused persons to be guilty of attacking them with stones and sticks, as reported by the prosecution. In the absence of attributing specific overt acts against each accused persons to be guilty of attacking

PW1 to PW4, as claimed by the prosecution, it cannot be said that the essential ingredients of offence under Section 307 IPC are made out against the above said accused persons. Therefore, it is clear that the claim made by the prosecution to punish accused persons under Section 307 IPC, stands not proved as no formal proof is placed on record against above said persons to be guilty of attacking PW1 to PW4 duly armed with deadly weapons, marked as

MO1 to MO8.

19.The effort made by the prosecution in relying upon the testimony of PW10 to connect another major link in the chain evidence to prove its contention that PW10 had rendered medical treatment to PW1 to PW3. The testimony of PW10 worked as Civil

Assistant Surgeon, Area Hospital, Srikalahasthi points out that on 15-02-2017 at about 4-55 a.m., he had an occasion to provide medical treatment to PW1 to PW3, found injuries i.e., tender swelling at left cheek bone of below left eye, and an abrasion over left eye of 4 cm., on the person of PW1. Similarly, an abrasion over left foot near ankle and swelling of 3 cm x 2 cm above the left iliac region on PW2 and that PW3 complained pain over right shoulder blade and all the above said injuries are “simple in nature” as per the wound certificates issued by him and marked as Ex.P5 to Ex.P7 respectively. When the attention of PW10 was invited, he replied that the injured persons themselves approached to the hospital. On 18 the whole, the role of PW10 in rendering medical treatment to PW1 to PW3 as per Ex.P5 to Ex.P7 wound certificates are useful to the extent that the prosecution could able to connect the link that soon after the alleged incident, PW1 to PW3 had visited Area Hospital,

Srikalahasthi for medical treatment.

20.Nextly, the role of PW13 who had resumed the investigation in the above crime from PW12 points out that on 22-02-2017 upon receipt of credible information, he along with his staff rushed to Sadasivapuram bus stop premises and arrested A2,

A6, A7, A11, A12, A5, A17 and A21 and thereby returned to the police station, completed legal formalities of arrest and produced them before the Judicial Magistrate of First Class, Srikalahasthi seeking judicial remand. Interestingly, PW13 had no occasion to prepare any document like mahazar report or seizurenama at the time of apprehension of above said persons by taking assistance of neighbouring independent witnesses. The entire testimony of PW13 of altogether silent as to the basis of identifying all accused persons at the time of his visit on 22-02-2017 at Sadasivapuram bus stop premises. The testimony of PW13 also points out that on 23- 02-2017 he visited the scene of offence, secured the presence of witnesses and reduced their statements as per provisions of Section 161 (3) Cr.P.C. However, the said fact stands not corroborated by the testimony of PW5 to PW7 placed on record, who had turned hostile to the case of the prosecution. Nextly, the testimony of PW13 points out that on 01-05-2017, A4 was arrested by him

Sadasivapuram bus stop premises and similarly A18 was arrested by him on 05-05-2017 at about 10-30 a.m. at Sadasivapuram bus stop premises and thereby he returned to the police station, completed legal formalities of arrest and produced them before the Judicial

Magistrate of First Class, Srikalahasthi seeking judicial remand. As

already observed supra, PW13 appears to have lost sight of the requirement to take assistance of neighboring witnesses to witness the apprehension of all accused persons on the above said dates at

Sadasivapuram bus stop premises which appears to be a busy locality. Finally, PW13 maintained his testimony that 07-06-2017 at about 9-00 p.m., upon receipt of credible information about A20, he along with his staff and mediators as PW8 and PW9 proceeded to 19

Sadasivapuram bus stop premises and effected arrest of A20 under the cover of Ex.P11 arrest mahazarnama scribed to that effect, duly attested by them. Above said contention of PW13, stands contradicted by both independent mediators as PW8 and PW9, respectively who had ventured to dispute the so called signatures present on Ex.P11 mediators’ report. Therefore, the attempt made by the prosecution to prove the apprehension of A20 in the absence of PW8 and PW9, sands altogether not proved.

21.The effort made by the prosecution to prove the involvement of all accused persons, having formed themselves into an-unlawful assembly, armed with deadly weapons so as to attract ingredients under Sections 147, 148 and 507 r/w.149 IPC appears to be a failure attempt. Initially, PW12, being the investigating officer has altogether failed to collect sufficient incriminating evidence, demonstrating the roles of above said accused persons at the time of alleged attack towards PW1 to PW4. The recitals of Ex.P1 written complaint presented by PW1 disclosed the involvement of some more accused persons, who are arrayed as A1, A3, A5, A13 and A16, respectively. However, the testimony of PW13 placed on record points out a contradictory stand to the effect that above said accused persons had no occasion to participate in the alleged attack. Therefore, the authenticity of Ex.P1 written complaint presented by PW1 itself has fallen under serious suspicion, as the involvement of A1,A3, A5, A13 and A16 is not made out as per the testimony of PW13. It is needless to observe here that a solemn duty is cast on the part of PW12 and PW13 being investigating officers to thoroughly investigate about the roles of the above said accused persons, since their names were reflected under Ex.P1 written report presented by PW1 who is a police official. Quite interestingly, no test identification parade was organized by any of the above said investigating officers so as to get identified all the accused persons by PW1 to PW4, as they being the injured persons in the above crime. The term “unlawful assembly” is defined under

Section 141 IPC mandates that “an assembly of five or more persons with common object to do any unlawful act or commit any offence, would constitute the term “unlawful assembly”. The penal provision is prescribed under Section 143 IPC, making it clear that 20 “whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both”.

22.Adverting to the facts placed on record coupled with the testimonies of PW12 and PW13 are altogether silent to substantiate their contention that A2, A4, A6, A7, A11, A12, A15, A17 to A21 have formed themselves into an unlawful assembly with common object to attack PW1 to PW4 and other police officials at the time of their visit to the scene of offence. As already stated supra, PW12 and PW13 appear to have lost sight of while conducting investigation in deleting some of the accused persons, though a specific reference was maintained in Ex.P1 written report presented by PW1 to the effect that a mob, consisting of 150 members were guilty of attacking them. Quite interestingly, the prosecution could not place trustworthy and convincing evidence by examining PW12 and PW13 to substantiate its contention that A2, A4, A6, A7 to A12,

A17 and A19 to A21 alone had participated in the alleged attack.

The primary requirement of placing convincing proof from the testimonies of PW1 to PW4 placed on record is lacking to the effect that the seized material objects marked as MO1 to MO8 were armed by the above said accused persons while attacking them. The clean admissions made by PW1 to PW4 at the time of trial proceedings expressing that they are not in a position to disclose the identity of each accused persons as well as pointing out the nature of weapons held by each accused persons at the time of alleged attack, would altogether point out that the statutory requirement of attributing specific overt acts against each accused person by PW1 to PW4 appears to be altogether not proved and thereby to arrive at a finding that the charge allegation leveled against the accused persons to the effect that they were guilty of forming themselves into an unlawful assembly, duly arming with deadly weapons, marked as MO1 to MO8, stands not proved by the prosecution. A close scrutiny of entire testimonies of PW1 toPW4 placed on record do not contain any allegation that they were subjected to criminal intimidation by all the accused persons at the time of alleged incident. Therefore, charge allegations framed under Section 506 r/w.149 IPC is not made by the prosecution.

21

23.Upon careful scrutiny of entire ocular as well as documentary proof placed on record, would altogether lead this court to arrive at a finding that the prosecution could not succeed in placing sufficient proof that above said accused persons having formed into an unlawful assembly with a common intention to do away the lives of PW1 to PW4 by making use of MO1 to MO8 as deadly weapons. The essential requirement of placing convincing proof that PW1 to PW4 were discharging their duties as public servants and that they were subjected to attack while performing official duties is also not proved by the prosecution. Therefore, this court arrives at a finding that none of the charge allegations leveled against all accused persons, stand proved beyond all reasonable doubt in the above said proceedings. Therefore, this court entertains a benefit of doubt in favour of all accused persons in the above crime. Accordingly, the point is answered against to the prosecution.

24.In the result, A2, A4, A6, A7, A11, A12, A15, A17, A19 to

A21 are found not guilty under Section 235 (1) Cr.PC and acquitted of charges framed under Sections 147, 148, 307, 332, 509 r/w.149

IPC in Crime No.8/2017 of KVB Puram police station. M.Os.1 to 8 are directed to be returned to the committal court and the same shall be destroyed upon expiry of appeal time. It is further directed that A2, A4,

A6, A7, A11, A12, A15, A17, A19 to A21 as well as their sureties have to comply with the requirement of furnishing bonds as contemplated under Section 437-A Criminal Procedure Code and the same shall be in force for a period of six months from the date of passing of this

Judgment.

Dictated to the Personal Assistant of this court, transcribed by

him, corrected and pronounced by me in the open court, this the 28th day of October, 2020.

Assistant Sessions Judge, Srikalahasthi.

Appendix of Evidence

Witnesses examined on behalf of the prosecution:

PW1 :K.P.Madhu Prasad. PW2 :M.Regan. PW3 :K.Balaji.

22

PW4 :G.Chandrasekhar. PW5 :C.Balachandra. PW6 :C.Venkatesulu. PW7 :R.Doravelu. PW8 :T.Doraswamy. PW9 :P.Purushotham. PW10:Dr.G.B.Sreenivas. PW11:Y.Prabhakar. PW12:S.Hanumanthappa. PW13:B.Parasuramudu.

Witnesses examined on behalf of the defence:

Nil.

Exhibits marked on behalf of the prosecution:

Ex.P1:Written complaint of PW1, dt.14-02-2017. Ex.P2:Sec.161 Cr.P.C.statement of PW5. Ex.P3:Sec.161 Cr.P.C.statement of PW6. Ex.P4:Sec.161 Cr.P.C.statement of PW7. Ex.P5:Wound certificate of PW1. Ex.P6:Wound certificate of PW2. Ex.P7:Wound certificate of PW3. Ex.P8:F.I.R.in Cr.No.8/2017 of KVB Puram P.S. Ex.P9:Rough sketch of the scene of offence, dt.15-02-2017. ExP10:Scene observation mahazar, dt.15-02-2017. ExP11:Confession cum arrest mahazar, dt.07-06-2017.

Exhibits marked on behalf of defence:

Nil.

Material objects marked:

MO1 to MO4:Four sticks. MO5 to MO8:Four stone.A.S.J., SKHT

Copy submitted to the Hon’ble Registrar (Judicial), Hon’ble High Court of Andhra Pradesh at Amaravathi. Copy submitted to the Hon’ble District & Sessions Judge, Chittoor. Copy to the Superintendent of Police, Tirupati Urban. Copy to the J.F.C.M., Srikalahasthi.

23

1

In the Court of the Senior Civil Judge :: Srikalahasthi

Present :: Sri M.Guru Nath,

Senior Civil Judge,

Srikalahasthi.

Monday, the Eighteenth (18 th ) day of May, 2020

Original Suit No. 63 of 2013

Between

Koneti Jagadeeswara RAo, S/o.late Koneti Sriramulu, Hindu, aged about 70 years, residing at door No.5-27, M.G.Street, Srikalahasthi town, Chittoor District.

.. Plaintiff.

and

1. Smt.Kanakagari Devakamma, W/o.Bhaktavatchalaiah, Hindu, aged about 73 years, residing at door No.5- 685, M.G.Street, Srikalahasthi town, Chittoor District.

2. Kanakagari Siva Prasad, So.Bhaktavachalaiah, Hindu, aged about 55 years, residing at door No.5-685, M.G.Street, Srikalahasthi town, Chittoor District.

3. Smt.BikkasamPushpalathachalam, W/o.B.Chalamaiah, Hindu, aged about 43 years, residing at door No.3-338, M.G.Street, Srikalahasthi town, Chittoor District.

.. Defendants.

This suit coming on 17-03-2020 before me in the presence of Sri B.Munisankara Reddy and Sri G.Ramesh Babu, Advocates for plaintiff and of Sri B.V.Chalamaiah, Advocate for defendants and upon perusing the record having stood over for consideration till this day, this court delivered the followings:

JUDGMENT

This suit is filed by the plaintiff against all defendants seeking relief to set aside the registered sale deed,dt.29-04-2013 executed by the first and second defendant in favour of third defendant as null and void and to award costs. The case of plaintiff is briefly narrated as follows:

02.The plaintiff and the first defendant are related as brother and sister said to be born to one Koneti Sriramulu. The second defendant is the son of the first defendant and the third defendant is the alienee respectively. During the lifetime of Koneti

Sriramulu, out of love and affection, he along with the first defendant executed a registered settlement deed, dt.30-09-1960 in favour of the daughter Devakamma/D1, duly gifting the plaint 2 schedule property with limited rights for enjoying the same during her lifetime and soon after her demise, the suit schedule property to be transferred to her children with absolute rights. Soon after execution of registered settlement deed, dt.30-09-01960, the first defendant had accepted the same and enjoying it as per the terms of the settlement deed.

(ii) While so, on 29-04-2013, the first and second defendants had committed breach to the terms of settlement deed and sold away the suit schedule property to the third defendant under execution of a registered sale deed vide document

No.1499/2013 and delivered possession of the same immediately.

Soon after knowing the said transaction, the plaintiff had approached all the defendants, questioned their act of deviating the terms of settlement deed, but they failed to respond properly. The plaintiff contends that the first and second defendants played fraud and misrepresentation in the form of transferring the plaint schedule property as such the said transaction is hit by provisions of Sections 17 and 18 of Indian Contract Act, 1872 and that the sale itself is under challenge and liable to be vitiated, as so called registered sale deed, dt.29-04-2013 executed in favour of third defendant would cause serious injury and defeats the intention of the donor of settlement deed and that the alleged sale deed, dt.29-04- 2013 is nonest in the eye of law and does not confer any rights to the third defendant, as such he is constrained to file the present suit, seeking the relief of cancellation of the said document.

03.Soon after numbering the above suit, summons ordered against all the defendants respectively and the same were served upon them. All the defendants appeared themselves before the court, got filed their vakalat through his counsel Mr.B.V.Chalamaiah,

Advocate, Srikalahasthi. The first and second defendants filed a common written statement with an adoption memo filed by the third defendant with a request to receive the same and to appreciate their contentions. Initially, the first and second defendants acknowledged their relationship with the plaintiff and also admitted the execution of registered sale deed, dt.29-04-2013 in favour of the third defendant as alienee by them. Initially, they pleaded that the 3 plaintiff as an interloper who had lost rights over the suit schedule property, as such the nature of relief sought by the plaintiff in the above suit is not permissible under provisions of Section 34 of

Specific Relief Act, 1963. They added that by virtue of execution of registered settlement deed, dt.30-09-1960, the plaintiff had lost his right from that day onwards and that there was no obligation from their side towards the plaintiff and if at all the execution of registered sale deed, dt.29-04-2013 executed by them in favour of third defendant, it has to be questioned by the second defendant himself and no one else, as the said recitals of the said settlement deed made a clear mention that the male children of the first defendant are entitled for exclusive possession and enjoyment over the suit schedule property from the first defendant.

(ii) A specific pleading is demonstrated that the plaintiff is duty bound to prove the existence of his right over the suit schedule property and that they are also under obligation to oblige the conditions imposed by the plaintiff. While admitting the averments referred in the plaint that a life interest was conferred on the first defendant and the vested right was conferred on the second defendant, with the said object, they plead that they are having exclusive right and possession over the suit schedule property and to transfer the same in favour of third defendant, as recitals of settlement deed are crystal clear about the divestment of the right expressed by the donor in favour of the donee. While disputing averment made by the plaintiff, it is contended that the recitals of the settlement deed are to be clear and unambiguous language and that it does not contain any clause that an intermeddler has no right to settle the transfer by the donee soon after acceptance of the gift from the donor. Thus the plaintiff has no right over the suit schedule property and that they have no obligation towards the plaintiff not to infringe any right and the alleged infringement does not arise as per the facts placed on record, as the plaintiff had no right over the suit schedule property and the so called infringement raised by him is subject to the rights and conditions of the settlement deed, where under they have been under possession and enjoyment of the suit schedule property.

4

(iii) The first defendant added that he filed a suit in

O.S.No.3/1999 and the said suit was ended into compromise in

reiterating the fact that the resolution of mediation, dt.19-07-1985 which was reduced into writing was agreed to be binding on both parties, including the legal heirs and successors. He adds that as per the terms of the said settlement deed, the first defendant was entitled to ‘A’ schedule property, wherein the present plaintiff was figured as defendant and as such he is estopped from questioning the alienation made by her in the said suit. She further adds that as per the terms of the settlement deed, a portion of Shanmuganand rice mill and a vacant site fell to the share of the first defendant was alienated to the third defendant for valid consideration of

Rs.4,80,000/- and delivered immediate possession thereof, as such the said transaction is valid, legal and binding upon the plaintiff.

(iv) As regards to the fraud and misrepresentation, both defendants disputed the said allegation as misleading and meaningless said to be introduced by the plaintiff and also disputed the application of provisions under Sections 17 and 18 of the Indian

Contract Act to the facts placed on record, on the premise that the plaintiff did not suffer any serious injury or any damage and the so called pleading averred in his plaint was imaginary and introduced by the plaintiff for his vested interest. Another line of pleading is placed on record contending that soon after execution of registered sale deed, the donor i.e., the plaintiff and his father had lost any right and interest over the plaint schedule property, as no right was reserved under the said document in the form of incorporating a condition making it clear to revoke the gift by the donors.

Accordingly, the plaintiff has no title or interest over the suit schedule property and thereby to hold that they did not violate any of the terms of the said document. With the above said pleadings, they requested to dismiss the suit with exemplary cost.

04.Upon careful perusal of pleadings of rival sides, after hearing respective counsel, following issues were settled for trial.

01. Whether the plaintiff is entitled for the relief of declaration that the sale deed, dt.29-04-2013 executed by first and second defendants in favour of third defendant is null and void ?

5

02. Whether there is any cause of action to the suit ?

03. To what relief ?

05.During the course of trial proceedings, the plaintiff to prove his contentions, examined himself as PW1 supported by marking documents as Ex.A1 registered sale deed, dt.30-09-1960 executed by himself along with his father in favour of DW1 and

Ex.A2 certified copy of registered sale deed, dt.29-04-2013 executed by first and second defendants in favour of third defendant respectively. Upon closure of plaintiff’s side evidence, the first and second defendants examined themselves as DW1 and

DW2, supported by marking documents i.e., Ex.B1 is the certified copy of written statement filed in O.S.No.110/2012, Ex.B2 and Ex.B3 and Ex.B4 are certified copies of compromise petition and compromise decree filed in O.S.No.3/1999 on the file of this court and Ex.B4 is the portion of chief examination of DW1 in

O.S.No.110/2012. The third defendant has not chosen to step

himself into witness box. Soon after closure of adducing evidence by both sides, the suit was taken up for arguments. A memorandum of written arguments is filed by both sides i.e., Mr.P.Munisekhar Reddy, learned counsel for plaintiff and Mr.B.V.Chalamaiah, learned counsel for defendants 1 to 3 respectively in support of their respective stand taken by each party in the above proceedings and requested to appreciate the same.

06.ISSUE NO.1:: During the course of trial proceedings, both parties to the suit availed provisions under Order 18 Rule 4

CPC in the form of filing their sworn affidavits, entered into the witness box upon oath, reaffirmed the contents scribed therein with a plea to receive it as chief examination and the said plea was permitted. The sworn affidavit filed by the plaintiff, examined himself as PW1 is nothing but reiteration of his entire version in the plaint. The sequel of events pleaded by PW1 in his plaint as well his testimony placed on record demonstrates that the suit schedule property and other properties were acquired by their father Koneti

Sriramulu during his lifetime and thereafter he has decided to divide his properties in favour of his son and daughter, who are none other 6 than PW1 and DW1 respectively. Accordingly, a registered settlement deed was executed on 30-09-1960 by said Koneti

Sriramulu along with his son i.e., PW1, duly gifting away the suit schedule property in favour of his daughter i.e., DW1. It is the specific contention of PW1 that the recitals of Ex.A1 registered settlement deed had conferred limited rights upon DW1 to enjoy the said property during her lifetime and thereupon, it has to be passed to her children who would acquire exclusive right of ownership soon after the demise of DW1.

07.A close reading of entire recitals of Ex.A1 altogether points out that the executants Koneti Sriramulu along with PW1 claimed themselves as exclusive owners of the suit schedule property and that out of love and affection, decided to settle the suit schedule property in favour of DW1 in the form of transferring it by way of reducing into writing as registered gift on 30-09-1960 and the same was accepted by the donee and delivered immediate possession on the even date. The written terms of Ex.A1 document also stipulated life interest and enjoyment in favour of DW1 and subsequently upon her male children with absolute rights. In the present case, DW2 seems to be the only child said to be born to her/DW1. Admittedly, the entire recitals of Ex.A1 gift deed are altogether silent to the fact of imposing a restriction upon the donee making it clear that in case, the donee violates the conditions, in the said event, the suit schedule property should be reverted back to the donors. Above said fact waso invited to the attention of PW1 by his opponents through their learned counsel. As admitted by

PW1, the entire recitals of Ex.A1 do not stipulate any such restriction clause, making it clear that if the donee violates the stipulated conditions, the suit schedule property would be reverted back to the donor. On the other hand, a clear recital is referred in

Ex.A1 by both donors, making it clear that they had relinquished their rights and title over the suit schedule property from the date of execution of the said document, which would altogether make it clear that once the execution of Ex.A1 was completed in the form of acceptance by the donee, the donors had transferred all sorts of rights to the donee, making her to enjoy the suit schedule property as per the reduced terms. A plain reading of entire recitals of Ex.A1 7 registered settlement deed contains two schedules referred as ‘A’ and ‘B’ said to be gifted to DW1.

08.The attention of PW1 was also invited as to the description of both schedules referred in Ex.A1 for which, he clearly acknowledged the same. By inviting the attention of PW1, sufficient interesting facts were elicited to the effect that some of the portion of gifted property referred in Ex.A1, i.e., ‘A’ schedule was sold by

DW1 to one R.R.Nathan of Chennai about 40 years ago. PW1 himself clearly acknowledged the said sale transaction conducted by DW1 and clearly admitted that he did not raise any objection against DW1 in disposing of ‘A’ schedule property reflected under

Ex.A1. Therefore, it is clear that PW1 was altogether aware of the sale transaction conducted by DW1 under the execution of Ex.A1 about 40 years ago itself, however, he did not raise any objection, but rather approached this court after sufficient length of time i.e., during the year 2013 with a plea to set aside Ex.A2 registered sale deed executed by DW1 and DW2 in favour of third defendant as null and void and that it is not binding upon him and the said contention of PW1, holds no merit, for the reason that PW1 did not resist the part of sale transaction under ‘A’ schedule of Ex.A1 conducted by

DW1 in favour of third party i.e., R.R.Nathan of Chennai, as the description of ‘A’ schedule property is not situated adjacent to his property succeeded from his father.

09.The attention of DW1 and DW2 was also invited by their opponent i.e., PW1, taking a specific plea that their act of executing

Ex.A2 registered sale deed in favour of third defendant attracts provisions under Section 18 fraud and Section 19 misrepresentation as defined under the Indian Contract Act. To examine the said issue, a careful appreciation of testimonies of both parties placed on record to be looked into. Admittedly, sufficient evidence is placed on record that a suit for partition in O.S.No.3/1999 was filed by DW1 as plaintiff against her brother i.e., PW1 as defendant therein.

Ultimately, the said suit was compromised before the Senior Civil

Judge’s Court, Puttur in the form of reducing the terms of settlement

into writing as per Ex.B2 and Ex.B3 respectively.

8

10.A close reading of recitals of Ex.B2 and Ex.B3 terms of settlement reduced into writing and attested by both parties to the said suit, contain a specific reference that ‘A’ schedule property was allotted to the plaintiff i.e., DW1 and whereas ‘B’ schedule property was allotted to the defendant i.e., PW1 herein. The terms and conditions of resolution of mediation, dt.19-07-1985 referred in the said compromise petition was ordered to be valid and binding on all the parties, including their legal heirs and successors in title. The attention of PW1 was also invited on the above said facts and he clearly acknowledged that he was one of the parties to the terms of settlement and he clearly admitted that the same are binding upon himself and his sister i.e., DW1 respectively. In view of clear admission elicited from PW1 that terms of Ex.B2 and Ex.B3 are binding upon him, which altogether demonstrate that DW1 was allotted ‘A’ schedule property, which is described as plaint schedule property concerned in the above suit. However, the resistence made by PW1 in approaching this court by way of present suit on the plea that Ex.A2 is liable to be set aside, however due to his clear admission at the time of trial proceedings in the above suit making it clear that Ex.B2 and Ex.B3 are binding upon him, as such it is clear that the law of rule of estoppel operates against him.

11.Sufficient interesting replies were elicited from PW1 by his opponents making it clear that 2/3rd share in ‘B’ schedule property of Ex.A1 was gifted to the donee i.e., PW1. Consequent to the filing of O.S.No.3/1999 by DW1 as plaintiff therein against her brother i.e., PW1 as defendant and the said suit was compromised under Ex.B2 and Ex.B3 relied upon by DW1 would altogether make it clear that the rice mill and vacant site were allotted to DW1 as per the terms of settlement reduced into writing under Ex.B2 and Ex.B3, making it clear that DW1 and DW2 had acquired exclusive right and title over the suit schedule property, described as ‘A’ schedule and consequently their act in executing Ex.A2 registered sale deed in favour of third defendant, holds merit as the rights flowed under

Ex.B2 and Ex.B3 in favour of DW1 and DW2 was enlarged as full fledged owners and it cannot be said that there was restriction on the part of DW1 even as per the recitals of Ex.A1 that she was 9 restricted to alienate the gifted property devolved upon her from her father and PW1 respectively.

12. It is clear that even as per the written arguments filed by plaintiff, he is not claiming any right over suit schedule property, but he is questioning the act of DW1 and DW2 in violating the conditions laid down under Ex.A1 on the premise that the very purpose of executing Ex.A1 was not be served if Ex.A2 is accepted by this court. The question arises for consideration is :: Whether

DW1 and DW2 had exercised their exclusive ownership and

valid title over suit schedule property as on the date of

execution of Ex.A2 registered sale deed in favour of third

defendant ? and the answer would be ‘in affirmative’, for the reason that as per the recitals of Ex.B2 and Ex.B3 to which PW1, as well as DW1 were the parties to the above said documents are binding upon them. The terms of Ex.B2 and Ex.B3 and passing a final decree in O.S.NO.3/1999 through which, DW1 and her son

DW2 had become exclusive owners over the suit schedule property, which has formed a part under ‘A’ schedule property agreed to be divested in favour of DW1. Even otherwise, their opponent i.e., PW1 was a party to the above said documents and the same was acknowledged by the said witness. When PW1 has accepted the terms of compromise under Ex.B2 and Ex.B3, as binding upon him, as such he has no right or say against DW1 to seek the relief of setting aside and cancelling of Ex.A2 registered sale deed executed by DW1 and DW2 in favour of D3. Sufficient replies were elicited from PW1 which are placed on record, make it clear that consequent to filing O.S.No.3/1999, DW1 also resorted to file another suit as

O.S.No.110/2012 on the file of this court for partition of joint family

properties and soon after receipt of summons, PW1 filed his written statement in the said suit as defendant and a certified copy of written statement was marked as Ex.B1. The entire recitals of written statement filed by PW1 as defendant in the said suit make it clear that he has insisted his sister/DW1 to bind herself to the terms of settlement deed reduced into writing under Ex.B2. DW1 also relied upon Ex.B4 certified copy of portion of chief examination of

PW1 filed in O.S.No.112/2012 on the file of this court.

10

13.Above said facts pleaded by PW1 altogether make it clear that he has insisted his sister/DW1 to bind herself to the terms of settlement deed reflected under Ex.B2 and Ex.B3, which altogether make it clear that PW1 has recognized the exclusive ownership and title over the suit schedule property exercised by

DW1 which include her agents, legal heirs and successors of title.

Quite interestingly, entire recitals of Ex.A2 registered sale deed executed by DW1 and DW2 in favour of third defendant altogether reiterated the terms of settlement reduced into writing in

O.S.No.3/1999, to which DW1 was a party to the said document. It

is also clear from the recitals of Ex.A2 registered sale deed executed by DW1 and DW2 as joint vendors of suit schedule property altogether made a specific reference that they had acquired exclusive right and title over the suit schedule property by virtue of passing Ex.B2 and Ex.B3 in their favour and accordingly they had decided to execute a registered sale deed in favour of third defendant under Ex.A2, as such it is clear that the status of DW1 and DW2 being vendors in exercising their exclusive right and title over the suit schedule property and transferring the same in favour of third defendant holds merit. Accordingly, the plea taken by PW1 that his opponents i.e., DW1 and DW2 had resorted to violate the terms of Ex.A1 registered settlement deed in the form of execution of Ex.A2 registered sale deed in favour of third defendant and thereby he is entitled to seek the relief of setting aside and cancellation of Ex.A2 registered sale deed, holds no merit. Hence, this issue is answered in favour of defendants and against to the plaintiff.

14.ISSUE NO.2:: An argument is advanced by the learned counsel for defendants that there is no substance in the claim made by the plaintiff contending that by virtue of execution of Ex.A2 registered sale deed in favour of third defendant, none of the provisions under Sections 17 and 18 of the Indian Contract Act would be applicable, since DW2 himself being the vested remainder of suit schedule property had executed the said document along with his mother i.e., DW1. Initially the attention of DW1 was invited on the above said fact by PW1 in the form of cross examination.

While acknowledging terms of Ex.A1 registered settlement deed, 11 dt.30-09-1960, she maintained that about 40 years ago, she had disposed of a portion of ‘A’ schedule property to one R.R.Nadhan of

Chennai by way of executing a registered sale deed. The attention of DW1 was further invited to disclose the description of revocation clause in Ex.A1 settlement deed, to which DW1 did not acknowledge the same. Admittedly, DW1 filed O.S.No.6/1997 on the file of this court seeking the relief of partition of Sreerama Mahal cinema theatre and Shanmugananda rice mill, claiming her half share in the above said properties, however the said suit was transferred to the

Senior Civil Judge’s Court, Puttur and renumbered as O.S.3/1999,

during pendency of the said suit, a settlement was arrived at and the same was reduced into writing under Ex.B2 and Ex.B3 respectively. When the attention of DW2 was also invited, he also acknowledged the conditions stipulated under Ex.A1 gift settlement deed to the effect that his mother/DW1 was given life interest under ‘A’ and ‘B’ schedule properties. He also admitted that entire recitals of Ex.A1 also made it clear that soon after demise of the first defendant/DW1, he would acquire full rights over the suit schedule property. Sufficient evidence is also placed on record, wherein DW1 claimed that PW1 also sold some of the properties allotted to her under compromise decree passed in O.S.No.3/1999 marked as

Ex.B3. In a similar manner, DW1 along with her son i.e., DW2 has resorted to execute Ex.A2 registered sale deed in favour of third defendant, as the suit schedule property was part of properties allotted to DW1 under compromise decree passed in O.S.No.3/1999, marked as Ex.B2 and Ex.B3. Therefore, it is clear that DW1 had acquired absolute right and title over part of properties allotted to her under ‘A’ schedule, by virtue of reducing terms of compromise decree in O.S.No.3/1999, as such it cannot be said that DW1 had acted in contravention to the terms of Ex.A1 gift settlement deed.

15.It is settled law that a suit for declaration of a document as void can be filed only by a person against whom the said document is void and voidable by invoking provisions under Section 31 of Specific Relief Act, 1963. For declaration of right or cancellation of sale deed as void or voidable against PW1, it is the duty cast upon PW1 to plead in specific terms, duly apprehending that it has caused him a serious injury. Such declaration of 12 cancellation of Ex.A2 registered sale deed can be sought before a court only by the person who had executed the document or in the alternative who claims to be in possession of the said document as void or voidable. Adverting to facts coupled with testimony of PW1 placed on record, when his attention was specifically invited on above said facts, a clear admission was deposed by him, contending that he is not seeking any relief in the above suit, but he altogether claims that he had approached this court on the premise that the terms of Ex.A1 were violated by DW1. It is not out of place to mention here that PW1 was given 2/3rd share of immovable properties, which are situated adjacent to the suit schedule property. Under the said situation, it is quite imaginary that PW1 being aware of the fact that ‘A’ schedule property was already sold to one R.R.Nadhan of Chennai about 40 years ago, for which he did not raise any written objection to declare the said sale as void ab initio and at later stage in approaching this court to cancel Ex.A2 registered sale deed executed in favour of third defendant holds no merit for the reason that primarily that the terms of settlement reduced into writing under Ex.B2 and Ex.B3 to which PW1 was a party are binding upon him. Under the strength of Ex.B2 and Ex.B3, the act of DW1 in disposing of properties allotted to her under ‘A’ schedule, coupled with a clear recital in Ex.A2 registered sale deed about the terms of settlement would altogether make it clear that the execution of Ex.A2 registered sale deed in favour of third defendant, under any stretch of imagination would not fall within the ambit of Sections 18 fraud and 19 misrepresentation as defined under Indian Contract Act, 1872 as pleaded by PW1 in the above suit.

16.The written arguments filed by PW1 placed on record clearly points out that he is not claiming any right over the suit schedule property, and if it is considered, would altogether make it clear that when PW1 is not claiming any right over the suit schedule property, as such the suit filed by him before this court, seeking necessary reliefs under Sections 31 and 34 of Specific Relief Act, 1963 would not sustain, for the reason that PW1 was not an affected party in consequence of execution of Ex.A2 registered sale deed in favour of third defendant, as the vendors DW1 and DW2 had 13 exercised their right of valid title and ownership over the suit schedule property to part away of the same soon after receipt of consideration. In a reported citation as (1) K.L.V.Prasada Rao Vs.

K.Venkateswara Goud – 2008 (2) ALT 455 and (2) Yanala

Malleshwari and others Vs. Ananthula Sayamma and others –

2006 (6) ALT 523 (FB) would altogether reiterate above said legal requirement to be fulfilled by PW1 in order to seek the relief from all defendants in the above suit. Applying the legal principle to facts placed on record, this court arrives at a finding that this issue is answered against to the plaintiff duly holding that he has no cause of action demonstrated in his favour to seek the relief for cancellation of Ex.A2 registered sale deed executed in favour of third defendant by his vendors. Hence, this issue is answered accordingly.

17.ISSUE NO.3:: In view of the foregoing discussion, the ultimate conclusion which has arisen out of issues 1 and 2 discussed at length, would lead to a finding that the contention of plaintiff/PW1 seeking the relief to pass orders for cancellation of Ex.A2 registered sale deed executed by DW1 and DW2 in favour of third defendant as null and void, holds no merit and consequently, the suit filed by the plaintiff against all defendants, stands dismissed without ordering costs.

Dictated to the Stenographer of this court, transcribed by him,

corrected and pronounced by me in the open court, this the 18th day of May, 2020.

Senior Civil Judge,

Srikalahasthi.

Appendix of Evidence

Witnesses examined on behalf of the plaintiff:

PW1 : K.Jagadeeswara Rao.

Witnesses examined on behalf of the defendants:

DW1 :K.Devakamma. DW2 :K.Sivaprasad.

Exhibits marked on behalf of the plaintiff:

Ex.A1:Registered settlement deed, dt.30-09-1960 standson the name of first defendant. Ex.A2:Registered sale deed, dt.29-04-2013 stands on the 14 name of third defendant.

Exhibits marked on behalf of the defendants:

Ex.B1:Certified copy of written statement in O.S.No.110/2012 on the file of Senior Civil Judge, Srikalahasthi. Ex.B2:Certified copy of compromise decree, dt.20-07-2017 in

O.S.No.110/2012 on the file of Senior Civil Judge,

Srikalahasthi. Ex.B3:Certified copy of compromise, petition, decree and plaint in O.S.No.3/1999 on the file of Senior Civil Judge, Puttur. Ex.B4:Relevant portion of chief examination of DW1 inO.S.No.110/2012 on the file of Senior Civil Judge, Srikalahasthi.

S.C.J., SKHT

Fair judgment in

O.S.No.63/2013,

dt.18-05-2020

1

In the Court of the Senior Civil Judge :: Srikalahasthi

Present :: Sri M.Guru Nath,

Senior Civil Judge,

Srikalahasthi.

Monday, the Eighteenth (18 th ) day of May, 2020

Original Suit No. 117 of 2016

Between

Kunapalli Bhaskar Naidu, S/o.K.Sreenivasul Naidu, aged about 50 years, agriculturist, residing at door No.8/516/27, Sri Dhashana Kylash Nagar, Srikalahasthi town, Chittoor District.

.. Plaintiff.

and

Samadhi Chandraiah, S/o.Samadhi Chethaiah, aged about 42 years,business and agriculturist, residing at Pellakuru Kothur village and Mandal, SPSR Nellore District.

.. Defendant.

This suit coming on 19-03-2020 before me in the presence of Sri K.V.Ramana Rao, Advocate for plaintiff and of Sri S.Ghouse Basha, Advocate for defendant and upon perusing the record having stood over for consideration till this day, this court delivered the followings:

JUDGMENT

This suit is filed by the plaintiff against the defendant for recovery of principal sum along with interest basing on execution of promissory note by the defendant and for costs. The case of plaintiff is briefly narrated as follows:

02.The defendant said to have approached the plaintiff on 29-10-2013, borrowed a sum of Rs.10,00,000/- to meet his family necessities, promised to repay the same with interest at the rate of 12%per annum either to the plaintiff or his order on demand. Soon after receipt of consideration of Rs.10,00,000/-, the defendant executed a promissory note in the presence of PW2 and one

Penchalaiah as the second attestor and utilized the services of one

K.Gopalakrishna Reddy, as the scribe. Subsequently, upon repeated oral demands by the plaintiff to pay the debt covered under suit promissory note, as well as issuing a legal notice, however the same 2 was postponed by the defendant on some pretext or the other.

Hence, the plaintiff is constrained to file the present suit.

03.Soon after numbering the above suit, summons ordered against the defendant was served upon him. The defendant made his appearance before the court, got filed vakalat through his counsel Mr.S.Ghouse Basha, Advocate, Srikalahasthi, and requested to file written statement. The defendant filed his written statement, denying the borrowing under execution of suit promissory in favour of the plaintiff. He pleads that from the year 2000 onwards, he had organized financial transactions with the plaintiff in the form of borrowing amounts and used to execute blank promissory notes and soon after discharging the said debts, the plaintiff used to return the blank signed promissory notes to him. However, in connection with recent elections, misunderstandings developed between himself and the plaintiff, taking advantage of the same, the plaintiff has resorted to create the suit promissory note by forging his signature with a view to harass and cause irreparable loss to him. In specific terms, the defendant pleads that he had no occasion to execute to suit promissory note and that he has no necessity to borrow such huge amount from the plaintiff. With the above said line of pleading, the defendant requests to dismiss the suit.

04.Upon careful perusal of pleadings of rival sides, after hearing both sides, following issues were settled for trial.

01. Whether the plaintiff is entitled for principal sum along with interest under suit promissory note, dt.29-10-2013 from the defendant ?

02. Whether the suit promissory note is rank forged document ?

03. To what relief ?

05.In order to prove his contention, the plaintiff examined himself as PW1, supported by Ex.A1 promissory note. To prove the execution of Ex.A1 promissory note, he relied upon PW2 as the first attestor said to be present at the time of lending. Upon closure of plaintiff’s side evidence, the defendant has failed to step himself into witness box to disprove contentions of plaintiff, even after 3 giving sufficient opportunities from 06-02-2020 onwards and failed to deposit costs awarded upon him. As the defendant failed to comply the conditional order, dt.05-03-2020 in the form of placing his evidence, accordingly it was deemed that the defendant has no evidence to let in and the same was closed.

06.Heard arguments of Mr.K.V.Ramana Rao, the learned counsel for plaintiff, who in turn argued that the initial burden cast upon the plaintiff stands proved in the form of placing his evidence as well as PW2 supported by Ex.A1 promissory note. He adds that the plea of forgery taken by defendant in the above proceedings was not proved either in the form of eliciting favourable replies from

PW1 or in the form of forwarding Ex.A1 promissory note for examination by expert. The crucial aspect of proving the lending as well as execution of Ex.A1 promissory note relied upon by PW1 is sufficient enough to pass a decree in favour of the plaintiff and with the said submission, he concluded his argument. Per contra, the learned counsel for defendant has not chosen to advance arguments on behalf of the defendant, as such this court feels it proper to dispose of the suit on merits.

07.ISSUE NO.1:: The plaintiff, in order to discharge his initial burden, examined himself as PW1 in the form of filing his sworn affidavit as per provisions under Order 18 Rule 4 CPC, entered into witness box upon oath and reiterated entire contents scribed therein as true and correct. The testimony of PW1 placed on record points out that the defendant had approached him on 29-10-2013, borrowed a sum of Rs.10,00,000/- to meet his family necessities and promised to repay the said sum along with interest at the rate of 12% per annum. To substantiate the same, PW1 relied upon Ex.A1 promissory note said to be executed in his favour by the defendant at Srikalahasthi in the presence of both attestors i.e., PW2 and one

Penchalaiah as well as one K.Gopalakrishna Reddy acted as scribe.

08.A plain reading of entire recitals of Ex.A1 relied upon by

PW1, altogether corroborated with his ocular testimony in all material particulars, evidencing that a sum of Rs.10,00,000/- had passed on to the defendant in the presence of attestors i.e., PW2 and Penchalaiah and one K.Gopalakrishna Reddy said to have 4 prepared the entire recitals of Ex.A1 promissory note, as signatures of all above said witnesses are conspicuously present over the said document. The effort made by PW1 in relying upon the testimony of

PW2 to place independent corroboration, has resulted in his favour.

The testimony of PW2 placed on record altogether found to be in corroboration with the testimony of PW1 on the crucial aspect of proving the debt relationship between PW1 and the defendant under execution of Ex.A1 promissory note said to be executed in his presence at Srikalahasthi.

09.Above said uniform assertions made by PW1 and PW2 on the fact of borrowing under Ex.A1 promissory note was subjected to the test of cross examination by the defendant through his learned counsel with an intention to disprove the same. Even according to the pleadings referred in the written statement filed by defendant make it clear that he had conducted financial transactions with PW1 from the year 2000 onwards. When the said fact was brought to the notice of PW1, and the same was acknowledged by him, however he disputed the practice that he used to obtain blank signed promissory note from his opponent. Similarly, PW1 also disputed that differences crept between himself and defendant prior to filing of the suit and that Ex.A1 promissory note was forged by him. An interesting suggestion was offered to PW1 contending that PW1 had resorted to create Ex.A1 promissory note by forged, taking advantage of possession of blank signed promissory note said to be obtained from the defendant in connection with earlier financial transaction. The said attempt made by defendant, holds no merit as no such pleading is reflected in his written statement.

10.The attention of PW1 was further invited to disclose the events of execution of Ex.A1 promissory note, as replied by PW1

PW2 is resident of Gnanmba Kandriga village, and whereas the second attestor seems to be the resident of Peddakannali village who was acquainted with the defendant. According to PW1, the second attestor Penchalaiah was brought by the defendant himself on the date of lending. The attention of PW1 was specifically invited to reply whether all witnesses used the same pen at the time of 5 execution of Ex.A1 promissory note, for which PW1 replied that he could not confirm the said fact. A careful perusal of the recitals of

Ex.A1 promissory note, altogether dispute the said fact as pleaded by the defendant. A crucial reply was furnished by PW1, contending that the defendant himself secured the blank promissory note as well as revenue stamp and affixed it at the time of lending.

Similarly, replies furnished by PW2 altogether acknowledged his acquaintance with PW1 for the last 30 years in connection with financial transactions. Admittedly, PW2 had no prior acquaintance with the defendant and he promptly replied that he was requested by PW1 to witness the lending. As replied by PW2, soon after his arrival, the second attestor Penchalaiah along with defendant and scribe Gopalakrishna Reddy had reached there and the said contention of PW2 altogether remained unshaken, as suggestion of denial was offered to the said witness. The attention of PW2 was specifically invited to disclose the format of execution of Ex.A1 promissory note by the defendant, as well as the mode of attestation by second attestor, but the same could not be replied by the said witness. On the whole, the presence of PW2 to witness the lending covered under Ex.A1 promissory note between PW1 and the defendant and in token of his presence, contributing his signature over the suit promissory note, need not be suspected, as the testimony of PW2 placed on record has altogether remained consistent to that effect. The attempt made by the defendant in form of suggesting PW2 as an interested witness to PW1 did not succeed. A careful scrutiny of uniformed versions of PW1 and PW2 supported by Ex.A1 promissory note placed on record would altogether demonstrate that the defendant had borrowed a sum of

Rs.10 lakhs from PW1 on 29-10-2013 in the presence of PW2 and thereby to hold that the plaintiff is entitled for recovery of suit claim from his opponent as pleaded by him. Accordingly, this issue is answered in favour of the plaintiff.

11.ISSUE NO.2:: Admittedly, a specific plea of forgery is introduced by the defendant in his written statement and he also made hectic effort to prove the said plea in the form of inviting the attention of PW1 during the course of cross examination, however 6 he could not succeed in the said attempt. A careful perusal of recitals of Ex.A1 promissory note contains two signatures of the defendant with date as “29-10-2013” underneath his signatures, which would altogether point out that the said document was executed by the defendant soon after receipt of consideration of

Rs.10 lakhs from PW1 in the presence of PW2 as well as one

Penchalaiah and scribe Gopalakrishna Reddy. Admittedly, it is for the defendant to discharge the plea of forgery introduced by him in the above proceedings, either in the form of placing reasonable proof or in the form of initiating steps to forward the suit document for examination by handwriting expert, as stipulated under Section 45 of Indian Evidence Act, 1872. It is not out of place to mention here that the so called signatures present on Ex.A1 were pleaded as forgery by the defendant which were clearly disputed by PW1, under the said situation, it is the bounden duty of the defendant to prove his line of contention. Quite interestingly, no such effort was made by the defendant to discharge the plea of forgery and the said failure would altogether demonstrate that the defendant has no valid reason or defence to discharge the plea of forgery. Therefore, this court arrives at a finding that PW1 has successfully proved existence of debt relationship between himself and the defendant under Ex.A1 promissory note and the same can be accepted as true, valid and binding upon the defendant. Hence, this issue is answered in favour of the plaintiff, holding that Ex.A1 promissory note is not a forged document.

12.ISSUE NO.3:: As per recitals of Ex.A1 promissory note coupled with testimonies of PW1 and PW2 placed on record point out that PW1 is claiming interest at the rate of 12% per annum.

Even according to PW1, the nature of lending was towards meeting family necessities, which would altogether point out that the lending transaction between PW1 and the defendant does not cover under commercial transaction. Therefore, this court arrives at a finding that the interest claimed by the defendant at 12% per annum, seems to be reasonable as the same would meet the language incorporated under Section 34 of CPC. Therefore, this issue is answered in favour of the plaintiff, holding that he is entitled for recovery of principal sum along with agreed rate of interest at the 7 rate of 12% per annum from the date of lending till the date of passing of decree. Hence, this issue is answered accordingly.

13.ISSUE NO.4:: In the result, the suit is preliminarily decreed with costs in favour of the plaintiff and against the defendant for a sum of Rs.17,92,984/- (Rupees Seventeen lakhs ninety two thousand nine hundred and eighty four only) as on today.

It is further ordered that the plaintiff is entitled to claim future interest at the rate of 6% per annum on the principal sum of

Rs.10,00,000/- from the date of passing of the decree till the date of realization.

Dictated to the Stenographer of this court, transcribed by him,

corrected and pronounced by me in the open court, this the 18th day of May, 2020.

Senior Civil Judge,

Srikalahasthi.

Appendix of Evidence

Witnesses examined on behalf of the plaintiff:

PW1 : K.Bhaskar Naidu. PW2 :P.Manohar Reddy.

Witnesses examined on behalf of the defendant:

Nil.

Exhibits marked on behalf of the plaintiff:

Ex.A1:Promissory note, dt.29-10-2013 executed by the defendant in favour of plaintiff.

Exhibits marked on behalf of the defendant:

Nil.

S.C.J., SKHT

8

Fair judgment in

O.S.No.117/2016,

dt.18-05-2020

1

In the Court of the Senior Civil Judge :: Srikalahasthi

Present :: Sri M.Guru Nath,

Senior Civil Judge,

Srikalahasthi.

Wednesday, the Seventh (7 th ) day of October, 2020

Civil Miscellaneous Appeal Suit No. 3 of 2018

Between:

1. Bodugu Jayamma, W/o.late Subramanyam, Hindu, aged about 60 years.

2. Bodugu Sambasivaiah, S/o.late Subramanyam, Hindu, aged about 41 years.

Both are agriculturists, residing at Chelluru village, Yerpedu Mandal, Chittoor District.

.. Appellants.

and

Budugu Soujanyamma, W/o.late Subramanyam, Hindu, aged about 63 years, permanent residentof Chelluru village, Yerpedu Mandal, Chittoor District, presently residing at door No.2/16-5, Srinivasapuram, besides Murali Road College, Oteru Road, Tirupati, Chittoor District.

.. Respondent.

ooo

I.A.No. 963 of 2016 – O.S.No. 202 of 20165

On the file of Principal Junior Civil Judge, Srikalahasthi

Between

Bodugu Soujanyamma. .. Petitioner/Plaintiff.

and

1. Bodugu Jayamma.

2. Bodugu Sambasivaiah... Respondents/Defendants.

ooo

This C.M.A. is coming on 05-10-2020 before me in the presence of Sri E.Prabhakara Reddy, Advocate for appellant and of Sri Pudi Venkateswarlu, Advocate for respondents through the virtual video conference mode and after hearing both sides and perusing the record having stood over for consideration till this day, this court delivered the followings:

JUDGMENT

2

This civil miscellaneous appeal is preferred by the appellants/defendants 1 and 2, aggrieved by the order of the trial court i.e., Principal Junior Civil Judge’s Court, Srikalahasthi passed in I.A.No.963/2016 in O.S.No.202/2016 filed for grant of temporary injunction in favour of the plaintiff.

02.The appellants are shown as respondents 1 and 2/defendants 1 and 2 in a suit filed by the respondent/plaintiff

before the trial court in O.S.No.202/2016. During pendency of the

said suit, the respondent/plaintiff filed I.A.No.963/2016 for grant of temporary injunction, restraining both respondents from interfering with her peaceful possession and enjoyment of the petition schedule property. Upon causing due enquiry, the trial court granted temporary injunction in favour of respondent/plaintiff by passing order, dt.08-12-2017, which has resulted in approaching the respondents to prefer an appeal before this court on following grounds:

(i) The primary contention of appellants herein demonstrates that the lower court has failed to observe that the respondent/plaintiff was never under possession of suit schedule property at any point of time, muchless on the date of filing of the suit. They add that the lower court also failed to appreciate the fact that one Bodugu Subramanyam father of second appellant was married with the first appellant and they were blessed with a son i.e., the second appellant. They also refuted the contention of the respondent/plaintiff that she was married to the said Bodugu

Subramanyam as a blatant lie, which had lost the sight of the trial court.

(ii) It is further contended that the vendors of respondent/plaintiff are not real owners of suit schedule property and the so called registered sale deed, dt.19-09-1984 is a rank forged document and that respondent/plaintiff having colluded with revenue authorities has created pattadar passbook, title deed, adangal/1B record of rights documents. Finally, they plead that the lower court has failed to appreciate and take notice that the family of second appellant and his forefathers are the absolute owners of 3 suit schedule property and request to allow this appeal on above said grounds.

03.Notice was ordered to respondent/plaintiff. Mr.Pudi

Venkateswarlu, Advocate filed vakalat on her behalf. Thereafter, the appeal was taken up for advancing arguments on behalf of respective parties in the above proceedings.

04.During the course of hearing, the learned counsel for the appellants reiterated their stand and requested to pass necessary orders and to allow their appeal. Per contra, the learned counsel for the respondent also reiterated his stand, contending that after due perusal of entire material placed on record, the trial court has properly passed orders of granting temporary injunction. He continued that no documentary proof is filed by appellants to substantiate their contention that the suit schedule property is under their exclusive possession and enjoyment and for the said failure, they are not entitled to seek any relief in the above petition and requests to dismiss the petition.

05. Now the point for consideration is ::

Whether the order passed by the trial court

in I.A.No.963/2016 in O.S.No.202/2016,

dt.08-12-2017 is liable to be set aside ?

06. POINT:: Admittedly, the respondent/plaintiff filed the main suit for grant of permanent injunction against both appellants, who are arrayed as defendants 1 and 2, under the strength of purchasing the suit schedule property under registered sale deed, dt.19-09-1984 vide document No.854/1984 executed by her vendors

Bellu Chenchamma along with her two sons. Above said document was exhibited as Ex.P1 before the trial court. A careful reading of entire recitals of Ex.P1, altogether makes it clear that consequent to the payment of entire consideration of Rs.10,000/- by the respondent/plaintiff, the suit schedule property was delivered to her possession in the form of executing a registered sale deed by her vendors. The respondent/plaintiff also exhibited two documents as

Ex.P2 and Ex.P3 i.e., original passbook and title deed stand on her name issued by the revenue authorities in respect of suit schedule property. A careful examination of Ex.P2 and Ex.P3 altogether 4 demonstrate the status of the respondent/plaintiff as the title holder of landed properties situated in Sy.Nos.10/4 and 9/14 situated at

Chellur village of Yerpedu Mandal said to be derived by the respondent/plaintiff under registered document No.854/1984 recorded and maintained at Sub Registrar Office, Thottambedu.

07. Nextly, the respondent/plaintiff also exhibited adandal/pahani copies as Ex.P5 and Ex.P6 for the fasli year 1426 issued by Tahsildar, Yerpedu altogether corroborates with her contention that title and possession over the suit schedule property stood in favour of the respondent/plaintiff. A careful reading of entire recitals of documents marked as Ex.P1 to P3, P5 and P6 altogether primarily establish that the respondent/plaintiff has discharged her initial burden in pointing out that the suit schedule property is under her active possession and enjoyment as on the date of filing of the suit. The learned counsel for the appellants refuted the said claim by taking a plea in the memorandum of grounds of appeal as well as in their written statement contending that their family consists of father and grandfather, and they are the absolute owners of the suit schedule property, and continued to be claiming their right, title, interest and possession over the same.

This fact is also pleaded by the appellants in their written statement. However, no piece of document is placed on record, either at the time of hearing the appeal or before the trial court to substantiate their contention. It is settled law that mere taking plea of possession would not suffice and never establishes the title in the absence of placing sufficient documentary proof.

08.During the course of hearing, the learned counsel for appellants invited the attention of the court that it is the specific case of the appellants that the respondent/plaintiff was never married to Bodugu Subramanyam. However, averments in the counter filed by appellants/respondents before the trial court points out that they are not disputing the death of Bodugu Subramanyam on 06-11-2015. The death certificate marked as Ex.P4 exhibited by the respondent/plaintiff reiterates the said fact. Since the death of

Bodugu Subramanyam is not under dispute even as per the pleadings of written statement, as such further probe is not required 5 to be made, as both parties have to prove their respective contentions before the trial court in the main suit.

09.It is settled law that while causing enquiry in a petition filed under Order 39 Rule 1 and 2 CPC, a duty is cast upon the court to express its opinion in the form of passing a speaking order upon application of mind and taking into consideration of legal parameters to grant temporary injunction. There is no necessity to go to the extent of deciding the main case. Admittedly, no rebuttal evidence in the form of documents are placed before the trial court in disproving the entire contentions of the respondent/plaintiff, which has ultimately resulted in passing orders of temporary injunction upon serious contest by both sides. The trial court, having taken into consideration of oral as well as documentary proof placed by the respondent/plaintiff, has properly arrived at right conclusion duly holding that the relief for temporary injunction could be accorded in favour of respondent/plaintiff after taking into consideration of the essential requirements to grant temporary injunction so as to protect her right as well as possession over suit schedule property. The reasons explained by the trial court in arriving at the said finding, seems to be purely based upon considering the ocular as well as documentary proof coupled with relevant facts discussed in the impugned order, dt.08-12-2017, which is found to be in consonance with provisions of Order 39

Rules 1 to 3 CPC to pass an order of temporary injunction in favour of the respondent/plaintiff.

10.For above said reasons, this court arrives at a conclusion that the relief claimed by appellants/defendants to dismiss and set aside the impugned order passed by the trial court in

I.A.No.963/2016 in O.S.No.202/2016, dt.08-12-2017, needs no interference by this court. Accordingly, the point is answered against to the appellants.

11.In the result, the C.M.A. stands dismissed duly confirming the order and decreetal order in I.A.No.963/2016 in

O.S.No.202/2016, dt.08-12-2017 passed by the Principal Junior Civil

Judge, Srikalahasthi. No order as to costs.

6

Dictated to the Stenographer Gr.II of this court, transcribed by

him corrected and pronounced by me in the open court, this the 7th day of October, 2020.

Senior Civil Judge,

Srikalahasthi.

Fair judgment in

CMA.No.3/2018,

dt.07-10-2020.