Smt M Kanaka Durga

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IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES UNDER S.Cs &

S.Ts (POA) ACT-CUM-VI ADDL. METROPOLITAN SESSIONS JUDGE:: SECUNDERABAD- CUM-XX ADDL. CHIEF JUDGE: SECUNDERABAD

Present: Smt. M. Kanaka Durga, V Addl. Metropolitan Sessions Judge, Hyderabad, FAC. Spl. Judge for trial of offences under SCs & STs(POA) Act cum VI Addl. Metropolitan Sessions Judge Secunderabad- cum- XX Addl. Chief Judge, Secunderabad.

FRIDAY, THE TWENTY NINTH DAY OF APRIL

TWO THOUSAND AND TWENTY TWO

O.S.No.97 of 2009

Between:

1.M/s.Sri Avantika Contractors, having its office at: # 610B, Aditya Enclave, Ameerpet, Hyderabad represented by its Proprietor, K.Narendra Reddy, S/o.late Venkataramana Reddy, aged 46 years, Occ:Business, r/o.189A, Road No. 76, Jubilee Hills, Hyderabad.

2.M/s.Pioneer Builders Ltd., having its office at Plot No.703,Sriniketan Colony, Road No.3, Banjara Hills, Hyderabad-34 represented by its Director, Sri B.Sudhakar Reddy, s/o.B.Sunderarami Reddy, aged about 61 years.

3.Col.Charles Edwin A Corfield, s/o Late Edwin Corfield, aged 87 years, 4.Mrs.Blossom Hyacinth Corfield, w/o.Charlie Edwin Corfiled, aged about 81 years, Plaintiff No.3 and 4 are r/o.#15, Worthing,

Avenue Barwood, Victoria, Australia and represented by their GPA holder,

S.Prakash Reddy, s/o.late S.Venkat Reddy, aged 46 years, Occ:Business, r/o.P.No.520, Sikh village, Sanjivayya Society, Secunderabad vide GPA dt.22.2.2005 *(plaintiffs 3 and 4 are added in compliance of the court objection dt.18.3.2009)

.. Plaintiffs

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AND 1.Union of India rep. By its Secretary, Ministry of Defence, 101, South Block, New Delhi-110011.

2.The Defence Estates Officer, A.P.Circle, Secunderabad.

3. The Cantonment Board rep. By its Executive Officer, Secunderabad.

… Defendants.

This suit having come before me on 28.4.2022 for final hearing in the presence of Sri P.Venkat Reddy, Advocate for the plaintiffs and S.K.Trivedi, Advocate for defendant No.1 and 2 and of Sri K.R.K.Rao, Advocate for defendant No.3 and after perusing the material and hearing the counsel for the plaintiffs, the matter having stood over for consideration till this day and today, this Court delivered the following:-

J U D G M E N T

This Suit is filed byplaintiffs to declare them as absolute owners of the suit schedule premises bearing No.201 including the appurtenant land thereto admeasuring Ac.5-74 denoted as GLR. Sy.No.614 situated at Tadbund, Thokkatta

Village, Secunderabad and to direct the defendants 1 and 2 to delete the wrongful entries in the General Land Register of 1956 of the defendants in respect of the suit schedule property with regard to the columns therein namely 1) Class

2) By whom managed 3) Landlord & 4) Nature of holders right and consequently to grant a decree of perpetual injunction restraining the Defendants, their men, agents, henchmen, workmen, representatives or any other person or persons claiming through or under them in any capacity from interfering with the Plaintiffs peaceful possession and enjoyment of the suit schedule property.

BRIEF FACTS OF THE CASE:

2.The averments of the plaint in brief are that,

a) The plaintiffs 1 and 2 are the absolute joint owners and possessors of the suit premises (land and building) bearing No. 201 and denoted as GLR Sy

No. 614 admeasuring Ac.5-74 situated at Tadbund, Thokkatta Village, ::OS. NO.97/2009::

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Secunderabad, which is more clearly described in the schedule annexed to the plaint and hereinafter referred to as the 'suit schedule property for brevity.

b) It is submitted that the registered documents of title evidencing the fact that the suit Schedule Property is a private property are available right from the year 1895 A.D onwards. The recitals of the said documents go to show that suit schedule property was inherited by Mr. Khan Bahadur Eduljee

Sorabjee Chenai. And he being the absolute owner and possessor of the suit schedule property executed a registered Trust Deed dated 4-7-1895 thereby appointing Mr. S.E.Chenai and B.E. Chenai as Trustees to administer his properties, for the benefit of his son Framgie E. Chenai. as he was mentally weak and consequently unfit to manage his own pecuniary affairs. A certified copy of the Trust Deed dated 4-7-1895 is filed herewith and marked as document No. 1.

c) It is submitted that the said Trustees sold the suit Schedule Property including the land and building thereon in the open public auction on 13-10- 1916 and one Mr R.C. Farrell purchased the said property in the said open auction for a sum of Rs.7600 (Osmania Currency). Pursuant thereto a registered Sale Deed dt. 22-11-1916 was executed in favour of R.C. Farrell and possession was delivered thereunder. A certified copy of registered Sale

Deeddated22-11-1916isfiledasdocumentNo.2.

d) It is submitted that Mr. RC Farrell, who became the absolute owner and possessor of the said property died unmarried and intestate on 11-4-1930.

As such his father viz., E.C. Farrell being the sole legal heir of his son R.C.

Farrell succeeded to the Estate of his son including the suit schedule property. Mr E.C. Farrell obtained Letter of Administration to the estate of his deceased son on 26-11-1931. Mr. E.C. Farrell having acquired absolute title over the suit Schedule Property from his son by way of succession, gifted the same including the land and building thereon to his daughter viz. Edith Maud

Corfield through a registered gift deed dated 26-10-1932. A certified copy of the Gift Deed is filed herewith and marked as document No.3.

e) It is submitted that Mrs. Edith Maud Corfield, thus having acquired ::OS. NO.97/2009::

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absolute title over the suit schedule property under the said Gift Deed, executed a registered Settlement Deed dated 7-11-1969 in favour of her children viz., Col. Charles Edwin A. Corfield and Mrs. Imogene Grace Gaebele with equal interest therein. A certified copy of the Settlement Deed dated 7- 11-1969 is filed herewith and marked as document No. 4.

f) It is submitted that Mrs.Imogene Grace Gacbele, who acquired half share in suit Schedule Property under the registered Settlement Deed dated 7-11- 1969 from her mother, executed a Will bequeathing her half share in the above property in favour of Mrs. Blossom Hyacinth Corfield.

g) It is submitted that the registered documents of title from the year 1895

A.D onwards evidence the fact that suit schedule property is a private property and also the manner in which the mutations were effected and carried out in the records of the defendants pursuant to the said registered transactions from time to time without raising any sort of objection or claim to the effect that the said property is an old grant indicates that the defendants have in fact treated the suit schedule property as a private property.

h) It is submitted that the plaintiffs No.1 & 2 herein have jointly purchased the suit schedule property from its lawful owners Col. Charles

Edwin A Corfield and Mrs Blossom Hyacinth Corfield, through two registered Sale Deeds bearing pending documents Nos.1469 2005 dated 16-12-2005 and 1375/2005 dated 25-11-2005 registered at District

Registrar, Ranga Reddy District. The said documents have been kept pending by the registering authority at the instance of the second defendant herein. The office copies of said draft sale deeds are filed herewith and marked as documents No.5 & 6.

HISTORICAL/BACKGROUND

1. It is submitted that the village Thokatta where the suit schedule property is situated, was under the Administration of Nizam, who was the sovereign ruler of the Princely State of Hyderabad. As per Land Revenue

Law, such land which was not granted under Jagir or Inam or held under ::OS. NO.97/2009::

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RyotwaritenurealonebelongedtotheNizam.

2. It is submitted that in the year 1806 the then Nizam of Hyderabad

Princely State permitted the East India Company to station its subsidiary force near about Hyderabad City. The troops were located near Bollaram,

Barracks, Ranges and Military buildings were constructed in land, which was unoccupied and vacant. The occupation of these lands by British Army was only with the permission of Nizam. The ownership of the land was never granted to the East India Company by the Government of Nizam.

3. It is submitted that the Cantonment Authority was formed only for the limited purpose i.e. to oversee the civic administration in the military area as well as neighbouring civil areas to regulate the sanitation and health.

4. It is submitted that subsequently under Firman No.5 of 1316 Fasli

dated 14th Isfender 1316 Fasli (16.1.1907) the Nizam placed 13 Mogulai

villages including Thokatta Village in which the suit schedule property is located, under the control of British India to be incorporated with the

Cantonment of Secunderabad for limited purpose of Civic Administration without conferring any right in the land. It is specifically stated in the said

Firman that all rights in the lands continue to be with the Government of

Hyderabad, Jagirdars, Inamdars, Pattedars or Occupants of lands. Thus the ownership in the lands in the said 13 villages was never transferred to the then British Government. A copy of the said Firman is filed herewith and marked as document No.7.

5. It is submitted that it is clear that the said permission granted by the

Nizam, the Sovereign of the Princely State of Hyderabad was with a specific condition that all rights in land continued to be in the Government of Hyderabad or Jagirdars or owners or occupants of the lands. Thus the ownership of the lands in these 13 villages including Thokatta village, where the suit schedule property is located, was never transferred to

British Government. Hence the theory of old grant or presumed or lost grant does not apply to the suit schedule property since the right of the administration of the East India Company / British Government over these ::OS. NO.97/2009::

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villages was only for civil or municipal administration from 1907 A.D only and not from the time immemorial.

6. It is submitted that the general rules and presumption regarding the ownership applicable to Cantonments established by the British

Government elsewhere in British India as sovereign do not apply to

Secunderabad Cantonment. Therefore there cannot be any presumption of old grant to any land in Secunderabad Cantonment. If the ownership to any land in this area be claimed by the first defendant in the capacity of successor of British India it can be done only by establishing the alleged grant being made at some point of time by substantiating the same by giving details of such grant if any. So far the defendants did not come forward with any such, record substantiating that the suit schedule property is an old grant.

IV.OTHERFACTS

1. It is submitted that the absolute ownership of the Vendors of the plaintiffs herein has been confirmed by the competent civil court and defendants herein are in fact perpetually injuncted from interfering with the possession of the Vendors of the plaintiffs vide judgment and decree

dated 15-10-1979 made in O.S. No. 1747/1974 on the file of the VIII

Assistant Judge, City Civil Courts, Hyderabad. A suit filed in respect of a portion of the suit schedule property upon the defendants insisting for execution of Lease Deed in respect of a portion of the suit schedule property in their favour.

22. It is submitted that in fact an issue on the title was framed and .considered in the said suit. Pronouncing the judgment in O.S.No. 1747 of 1974, the learned VIII Assistant one Judge, City Civil Court, Hyderabad, after considering the oral and documentary evidence adduced by the plaintiffs 3 and 4 herein had also examined the title of the plaintiffs 3 and 4 and held that the plaintiffs 3 and 4 have clear title to the property.

Their title cannot be questioned and the Hon'ble Court granted the permanent injunction in O.S. No. 1747/1974 vide judgment and decree ::OS. NO.97/2009::

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dated 15-10-1979. A certified copy of the said judgment dated 15.10.1979

made in O.S. No. 1747/1974 is filed herewith and marked as document No.

8.

3. It is submitted that the defendants 1 & 2 and defendants 3 to 5 in the said suit aggrieved by the said judgment filed two separate appeals before the Additional Chief Judge, City Civil Courts, Hyderabad vide A.S.No.357 of 1980 and A.S.No.304 of 1980 respectively. While dismissing the appeals filed by the defendants in the year 1987, the Appellate Court confirmed the lower court's judgment. The learned Judge in his judgment further held

THAT THE GOVERNMENT HAS NOT EVEN THE PRETENCE OF A CLAIM OF

OLD GRANT LAND. The learned Appellate Judge further confirmed the free hold rights of the Vendors of the plaintiffs over the suit schedule property.

4. It is submitted that the authorities have conveniently ignored the perpetual injunction decree granted by the competent civil court having jurisdiction in respect of a portion of the suit schedule property. The perpetual injunction granted and findings with regard to the title of the suit schedule premises recorded by the jurisdictional civil court in

O.S.No.1747/1979 and confirmed in the appeals thereof have become final

and same are binding on the defendants herein. As such the defendants are estopped from once again claiming the suit schedule to be an old grant.

5. It is submitted that in a related common judgment passed in Land

Acquisition O.P. No. 19/1952 and batch, the similar question was considered and held that the petitioners in the said O.Ps were not the lessees of the Government and the land involved in those cases, which is part and parcel of Thokatta village, cannot be the property of the

Government. A copy of the judgment dated 1-11-1961 in O.P. No.19/1952 is filed herewith and marked as document No. 9. Similar question came up for consideration of Hon'ble High Court of A.P. also in Union of India and another Vs. Vasavi Co-operative House Building Society Ltd. (2002 ALD (5)

DB 532). A division bench of Hon'ble High Court categorically held in the said case that the entries made in the General Land Register do not constitute any title in favour of the government and that the ::OS. NO.97/2009::

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Secunderabad and Aurangabad Land Administration Rules, 1930 do not applytoThokattavillage.

6. It is submitted that the plaintiffs and their predecessors in title have been in possession and enjoyment of the suit schedule property as absolute owners to the knowledge of the defendants. And without prejudice to the facts mentioned above, the plaintiffs humbly submit that the claim of the defendants is extinguished and the plaintiffs perfected theirtitlebyadversepossessionalso.

7. It is submitted that the report dated 10-10-1926 of the then Resident

Secunderabad Sir W.P. Barton sent to the first defendant and the report

dated 20-2-1989 submitted to the first defendant by the then Director

General K.M. Sebastian, apart from several other enquiry reports from time to time, establish that General Land Register of 1956 certain sites were declared to be old grants not as a result of any evidence having come to the light but because of the general arbitrary decision that the lands for which the authority of occupation was in the past considered unknown should be treated as old grant and this decision was rooted in the belief that all the lands in the cantonment area of Secunderabad including those owned by the private individuals vested in the Nizams

Government and as a result of Article 295(1) (2) of the Constitution are transferred to the Central Government. And that the entry made in the

G.L.R in favour of the Government unilaterally would not offer proof of title of the Government". Photocopies of the said reports are filed as document

Nos.10&11.

8. It is submitted that the reports of W.P. Barton & K.M. Sebastian are self-explanatory and completely vindicate the stand of the plaintiff's.

Hence the defendants have been suppressing the same. Unless this

Hon'ble Court directs the defendants to produce the said reports, the

plaintiffs would suffer hardship. Hence this Hon'ble Court may be pleased to direct the defendants 1&2 to produce the same before this Hon'ble

Court. In the event of defendants failing to produce the same adverse inferencemayhavetobedrawnasperlaw.

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9. It is submitted that the Cantonment Land Administration Rules, 1925 were applicable to British India and not to Nizam State. For the said reasons the then Resident issued the Secunderabad and Aurangabad

Administration Rules, 1930.

10. It is submitted that the Rule-3 of the Secunderabad and Aurangabad

Administration Rules, 1930 deals with the preparation and maintenance of

General Land Register in the form Prohibited in Schedule-A. Rule-5 deals with the maintenance of Register including mutation

11. It is submitted that Rule-5 provides for the classification of Land as follows:

(A)Land used for Government purpose, military or civil.

(B)Land occupied or available for occupation by the public leases or otherwise for the purpose of subsidiary to cantonment administration.

(C)Land belonging to the cantonment authority or transferred to them under Sec, 108 of the Act.

12. It is submitted that note appended to Rule-6 states that "nothing in these rules shall apply to the State, Sarfikhas, Paiga or privately owned land or to the land in 13 villages referred to in the notification dated 14"

Isfander 1316 Fasli. Thus it is clear that even the Secunderabad and

Aurangabad Administration Rules 1930 are not made applicable to 13 villages including Thokkatta where the suit schedule property is located.

13. It is submitted that apparently the defendants created the register called "General Land Register" on the same pattern of General Land

Register prepared in respect of other cantonment areas in British India under the Cantonment Land Rules, 1937. Several buildings and lands belonging to the private parties in Secunderabad Cantonment area have been wrongly and arbitrarily recorded therein as belonging to the first defendant. That even in the General Land Register (hereinafter referred to as G.L.R for brevity) prepared in 1933, it has been recorded that "authority for occupation is not known". However, strangely, without there ::OS. NO.97/2009::

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being any order thereafter, in the second G.L.R prepared in the year 1956 the words "authority for occupation is not known" have been substituted with the words "held as old grant" which clearly indicate that the entries in the G.L.R have been made fraudulently, contrary to the principles of natural justice and without there being any record in support of such entries.

14. It is submitted that the respective owners of Bungalow No. 205 & 206 requested the first defendant to correct the wrong entries in the General

Land Register. The first defendant in fact issued orders for correction of entries in respect of those properties. The copy of letter dated 28.1.2002

Tissued by the Dy.Secretary to the Government of India, Ministry of hDefence addressed to the Director General Defence Estates in respect of eBungalow No. 205 is filed herewith as document No. 12.

15. It is submitted that the vendors of the plaintiffs, having come to know of such wrong entries in the General Land Register of Secunderabad

Cantonment in respect of the suit schedule property also made similar request by giving various representations to the first defendant. However, none of those representations are disposed off by the first defendant so far.

16. It is submitted that due to the failure of the defendants herein to consider the representations despite repeated requests, the plaintiffs were to constrained to approach Hon'ble High Court of Andhra Pradesh by filing Writ Petition No. 21558/2008 on 29-9-2008 seeking to declare the inaction in considering the representations as arbitrary, illegal and to direct the defendant No. 1 to consider the representations dated 19-2- 2007 and 10-3-2007 and to accordingly correct the entries in the General

Land Register as per law. The Hon'ble High Court was pleased to dispose off the said Writ Petition on 16-10-2008, directing the defendants to consider the representation of the plaintiffs dated 10-3-2007 with regard to the rectification of entries in General land Register in respect of suit schedule property and to pass appropriate orders as expeditiously, preferably within a period of four weeks from the date of receipt of the ::OS. NO.97/2009::

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copy of the said order. So far the 1" defendant, who is competent in law to consider the representation did not choose to dispose off the representation dated 10-3-2007 despite specific direction of the Hon'ble

HighCourtofA.P.

17. It is submitted that the defendants published an antedated resumption notice purported to be dated in the newspapers on 26-11- 2008 requiring the plaintiffs 3 and 4 herein to vacate the suit schedule property on or after expiry of 3 months from the date of receipt of said notice. It is important to note that notice has not been served upon the plaintiffs or their GPA. Obviously the said resumption notice was published deliberately to circumvent the procedure with malafide intention of unlawfully resuming the suit schedule property. The newspaper publication dated 26-11-2008 in which the resumption notice was published is filed herewith and marked as document No. 13.

18. It is submitted thataggrieved by the action of the defendants in publishing the resumption notice in newspapers on 26-11-2008 without complying the direction of the Hon’ble High Court of A.P to consider the representation dated 10-3-2007, the plaintiffs filed W.P. No. 3340/2009.

The learned Single Judge of Hon'ble High Court of while admitting the writ petition directed the Registry to list the W.P.M.P.No. 4336/2009 after two weeks. As the interim order was not granted by the learned Single Judge, the plaintiffs filed Writ Appeal S.R. No.18906/2009 wherein a Division

Bench of Hon'ble High Court of A.P. was pleased to grant interim stay for a period of 6 weeks vide W.A.M.P. No. 471/2009 vide order dated 25-2- 2009. Though the said order has been passed in the presence of their counsel, the defendant No.2 highhandedly deployed the police and army personnel at the suit schedule premises in early hours of 26-2-2009 for the purpose of resuming the possession of the suit schedule property unlawfully. Whereat he made false and coloured statements quite contrary to the records.

19. It is submitted that the plaintiffs herein apart from filing the W.P. No.

3340/2009 also filed Contempt Case No. 216/2009 in WP No. 21558/2008.

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When the contempt case came up for admission on 12-3-2009, the learned counsel for the defendants 1&2 herein has represented to the

Hon'ble High Court that pursuant to the direction of the learned Single

Judge of the Hon'ble High Court of A.P. made on 16-10-2008 in W.P.M.P.

No 21558/2008 the representation has been disposed off by the second defendant herein vide letter No.20/47/X/5 dated 3-11-2008 and that letter has been communicated to Sri Prakash Reddy, the GPA Holder of the

Vendors of the plaintiff's herein through registered Post with acknowledgment due. The photocopies of the rejection letter dated 3-11- 2008 and postal acknowledgment were given to the counsel of the plaintiffs herein across the bench on 12-3-2009. However upon ascertaining the said fact from Sri Prakash Reddy, it came to light that no such letter has been served upon him so far. The said copies of letter

dated 3-11-2008 along with postal acknowledgment are filed herewith and

marked as document No.14 (Collectively).

20. It is submitted that the representation dated 10-3-2007 directed to be disposed by the Hon'ble High Court of A.P. was submitted to the first defendant herein. Whereas the Second Defendant purported to have disposed off the representation which was not even before him without any authority to do so obviously with an intention to fraudulently resume the possession of the suit schedule property under the guise of the said rejection letter dated 3-11-2008, which is not even communicated to the plaintiffs despite the direction of the Hon'ble High Court of A.P. The rejection letter dated 3-11-2008 on the face of it establishes the malafides of the defendant No.2

21. It is submitted that the conduct of the second defendant in disposing off the representation which is not even submitted to him knowing fully well that he has no such power or authority in law to consider the request of the plaintiffs for correction of entries in the General Land Register goes to show that the second defendant is bent upon illegally dispossessing the plaintiffsbyhookorcrook.

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22. It is submitted that in view of the letter of rejection dated 3-11-2008 issued by the defendant No.2 herein denying the title of the plaintiffs and their predecessors in title by falsely stating that the ownership of the suit schedule property rests with the Government, which was not communicated to the plaintiffs or the GPA Holder of their Vendors, the plaintiffs have no other efficacious remedy except to approach this

Hon'ble Court seeking declaration of their title and perpetual injunction

and also correction of entries in the General Land Register.

23. It is submitted that the plaintiffs apprehend that in the event of the plaintiffs causing notice as required under Sec. 80 (1) of C.P.C. the defendants would take undue advantage of the same and would meanwhile dispossess the plaintiffs from the suit schedule property illegally. As such the immediate interim relief from this Hon'ble Court to safeguard the possession of the plaintiffs pending disposal of the suit has become essential. Hence the plaintiffs are constrained to approach this

Hon'ble Court without serving any notice to the defendants as required

under Sec. 80(1) of C.P.C. However by way of various representations the defendants are already put sufficient notice of the claim of the plaintiffs and their predecessors in title. Unless this Hon'ble Court dispenses the

Sec 80 of C.P.C notice to the defendants in the suit, the plaintiffs would suffer irreparable loss and hardship.

24. It is submitted that the plaintiffs submit that they have not filed any other suit or application for the reliefs herein sought or no other suit /applicationispendingbeforeanycourtoflaw.

25. It is therefore, prayed that the Hon'ble Court may be pleased to decreethesuitinfavouroftheplaintiffs:

a) To declare that the plaintiffs are the absolute owners of the suit schedule premises bearing No.201 including the appurtenant land thereto admeasuring Ac.5-74 denoted as GLR. Sy.No. 614 situated at Tadbund,

Thokkatta Village, Secunderabad.

b) To direct the defendants 1&2 to delete the wrongful entries in the ::OS. NO.97/2009::

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General Land Register of 1956 of the defendants in respect of the suit schedule property with regard to the following columns therein. 1) Class

2) By whom managed 3) Landlord & 4) Nature of holders right.

c) Consequently to grant a decree of perpetual injunction restraining the

Defendants, their men, agents, henchmen, workmen, representatives or any other person or persons claiming through or under them in any capacity from interfering with the Plaintiffs peaceful possession and enjoyment of the suit schedule property.

d) Costs of the suit be awarded; and

e) any other relief or reliefs to which plaintiffs are entitled to may also be granted.

Contra the defendants filed written statement and contended as follows -

3. The Defendants No.1 and 2 submitted the written statement and same was adopted by Defendant No.3 by way of filing memo and they stated

i) That the Defendant No.2 being lawfully and administratively competent to file Written Statement on behalf of Defendant No.1 the

Written statement is thus filed by Defendant No.2 for himself and also on behalf of Defendant No.1.

ii) It is submitted that Defendant No.1 and 2 deny all the allegations made by the plaintiff herein except that those are specifically admitted herein. Such of those allegations, which are not admitted herein, shall be deemed to have been denied and the plaintiff is put to strict proof of the same. The present suit is not maintainable either in law or on facts. Hence thesuitisliabletobedismissedinlimini.

iii) With regard to para 1 of the Plaint, it is submitted that this

Defendants are not aware of the credentials of M/s Sri Avanthika

Constructions represented by its Proprietor K. Narendra Reddy, M/s

Pioneer Builders Ltd. and Mrs. Blossom Hyachinth Corfield. This fact we ::OS. NO.97/2009::

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came to know for the first time when the same Plaintiff had filed a W.P.

No. 21558/2008, before the Hon'ble High Court.

REPLY TO PARA III - BRIEF FACTS OF THE CASE

iv) With regard to para 1 of the Plaint, it is submitted that the statements of the plaintiff made in this para are totally baseless, false and in suppression of the recorded documentary evidence. The plaintiff is no way concerned with Bungalow No.201. It is further submitted that the plaintiffs are neither the Holder of Occupancy Rights of the Bungalow No.

201 nor GPA holder or having any authority/authorisation to file this case.

v) With regard to para 2 & 3 of the plaint, it is submitted that the averments made in these paras are denied and disputed except those are specifically admitted herein. The plaintiff has referred to the trust deed of 4-7-1895 (Document No.607 of 1895). It is very correct that the Holder of

Occupancy Rights is enjoying only occupancy rights on the Defence land comprised of Bungalow No.201. In the present case, the said Bungalow was transferred as per record of Defence Department to Mrs. Edith Maud

Corfield d/o E.C. Ferrel and W/o E.L. Corfield by R.C. Ferral. In all these transactions the bungalow was only transferred as per G.G.O.No.179 of 12th September 1836 and in no case the land appurtenant to the

Bungalow was transferred. All the Bungalows in Cantonment including

Bungalow No.201 of Secunderabad Cantonment was granted by the

Government of India, Ministry of Defence by giving a number to each

Bungalow and the said Bungalows were granted by the Assistant Quarter

Master General, Hyderabad Subsidiary Forces from 1806 onwards and thereafter each subsequent transactions were registered either before the

Assistant Quarter Master General, Hyderabad Subsidiary Force,

Secunderabad or the Cantonment Magistrate, Secunderabad Cantonment under various Acts from 1773 including the Act XXII of 1864 or before the

Sub Registrar Secunderabad under Section 66 of Indian Registration Act 1877 and its predecessor Act, or subsequent Acts time being in force. The present transactions are registered before the above authority.

vi) With regard to para 4 of the plaint, it is submitted that the statements ::OS. NO.97/2009::

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made in this para are denied and disputed except those are specifically admitted herein. It is submitted that the Bungalow No.201 of

Secunderabad Cantonment was subsequently transferred to Mrs. Edith

Maud Corfield d/o E.C. Farrell and W/o E.C. Corfield and in all these transaction, the land appurtenant to the bungalow was not transferred as per the laid down rules.

vii) With regard to paras 5 and 6 of the plaint, it is submitted that the statements made in this para are denied and disputed except those are specially admitted herein. It is submitted that Mr. Edith Maud Corfield inherited the rights, interest, title to the extent the predecessor had in the subject bungalow/structure i.e. Bungalow No.201 of Secunderabad

Cantonment. In all the transactions the Bungalow structure is only transferred or inherited as the case may be. But in no case the land appurtenant to the bungalow was transferred.

viii) With regard to para 7 of the plaint, it is submitted that the averments made in this Para are denied and disputed except those are specifically admitted herein. It is submitted that it is a fact that the interest, rights in respect of the structure of Bungalow No.201 was categorically established in all the transactions in respect of Bungalow

No.201. It is a fact that this Bungalow was not established in 1895. In fact it was established even earlier. The Defendants have the records in respect of the Bungalows in Secunderabad Cantonment way back to year 19th Century. The Cantonment was planned and designed and grants were given to construct the Bungalows to various individuals. Majority of them were Chenoys, Mudaliars or Bengalis who appear to be the financiers to the British India. Therefore, the land was granted to construct

Bungalows in the Cantonment and the same has to be hired to the officials of the British Indian Government. In the present case, the

Bungalow No.201 is one such Bungalow erected and rented to the Officials of the British Indian Government. The Holder of Occupancy Rights possessed ownership rights in respect of the super structure of the

Bungalow No.201 only and the land appurtenant to the Bungalow always belong to the Government of India, Ministry of Defence. The Occupancy ::OS. NO.97/2009::

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Holder can utilize the land for dwelling purpose but he has no authority to transfer the land. Therefore, in all the Bungalows, the extent of land is not mentioned and transferred. When the HOR transferring the Bungalow itself and not the land appurtenant to the Bungalow was transferred the question of objecting the transfer does not arise because the transfer by the Government of India is well within the rules.

ix) With regard to para 8 of the plaint, it is submitted that according to the General Land Register, land comprising GLR Sy No. 614 of

Secunderabad Cantonment admeasuring 5.74 acres is classified as B (3) placed under the management of Defence Estates Officer. The description of this holding is recorded as Bungalow No.201 and the occupancy rights is in the name of Mrs. Edith Maud Corfield D/o E.C. Farrel and W/o E

Corfield. The nature of holders right is recorded as Old Grant and the landlord is recorded as Central Government. According to the terms of

Old Grant, the land and trees growing thereon belongs to the Central

Government. The terms and conditions governing the Old Grant

Bungalows are laid down in the Governor General in Council order No.179

dated 12th September 1836 in the form of regulations.

As per the regulations No. 5 of the GGO No.179 of 1836, all grants are to be registered by the Office of the Quarter Master General. The said regulation is reproduced below:-

All grants are to be registered by the officer of the Quarter Master

General's Department attached to the division, and, at stations where no such officer may be present, by the executive officer of public works, to whom also in such cases, applications for ground are to be addressed; and all grants are to be immediately noted upon the plan of the cantonment in the Quarter Master General's Office.

Grants to be registered and noted on plan

As per the above GGO, the document No. 590 of 1889 and all its previous title deed were registered before the Assistant Quarter Master

General's Office.

The grants were given under certain conditions laid down in regulation ::OS. NO.97/2009::

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6 of GGO No.179 dated 12-09-1836. The said regulation is reproduced below:

No ground will be granted except on the following conditions, which are to be subscribed by every grantee, well as by those to whom his grant may subsequently be transferred: -

Conditions of occupancy 1st. - The Government to retain the power of resumption at any time on giving one month's notice and paying the value of such as may have been authorized to be erected.

resumption of land 2nd.- The ground, being in every case the property of Government, cannot be sold by the grantee; but houses or other property thereon situated may be transferred by one military medical officer to another or without restriction, except in the case of reliefs, when if required, the terms of sale or transfer are to be adjusted by a Committee of Arbitration.

Land belongs to Government

Land cannot be sold by grantee. Transfer of houses between

military officers 3rd - If the ground has been built upon, the buildings are not to be disposed of to any person, of whatever description, who does not belong to the army, until the consent of the Officer Commanding the station shall havebeenpreviouslyobtainedunderhishand.

Arbitration in case of transfer on relief. Transfer of house to

civilian.

4th. - When it is proposed, with the consent of the General Officer, to transfer possession to a native, should the value of the house, buildings or property to be so transferred exceed Rs.5,000, the sale must not be effected, until the sanction of Government shall have been obtained through his Excellency the Commander-in-Chief.

Transfer to native.

It is submitted that the Bungalow No.201 of Secunderabad Cantonment was occupied by Major Thomson, Deputy Advocate General at a monthly ::OS. NO.97/2009::

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rent of Rs. 50/- in accordance with the GGO No.179 dated 12th September 1836.

x) It is submitted that the Holder of Occupancy Right can transfer the

Interest, and rights over the Bungalow with the prior approval of the

Government of India, Ministry of Defence. In the present case, all the sale deeds through which the Bungalow was transferred from one hand to another were under the Indian Registration Act 1877, 1908 and predecessor Acts. In none of the sale deeds, the land was transferred.

There is no mention about the extent of land. The Bungalows, outhouses only were transferred. None of the Sale deed mention the extent of land transferred. Since the land appurtenant to the Bungalow is owned by the

Government of India, Ministry of Defence, therefore, it cannot be transferred and that is the reason the extent of land was not mentioned.

More over the Bungalow No.201 was transferred to Corefield only as per proper procedure. With reference to Bungalow No.201 of Secunderabad

Cantonment, it is submitted that as per GGO No.179 of 12th September 1836, the Holder of occupancy Rights of the Bungalow cannot make any transaction including issue of GPA to any individual without the prior permission of the Government of India, Ministry of Defence In this case, the recorded holder of occupancy Rights never applied for transfer of holding.

REPLY TO PARA III-HISTORICAL BACKGROUND

xi) With regard to para 1, it is submitted that as per Revenue records i.e

Pahani Patrika, land in Revenue Sy No.200 of Thokatta village is recorded as "Sarkari Abadi". The Bungalow No.201 of Secunderabad Cantonment is part of Revenue Sy No.200 of Thokatta village. In this case, the entries in the GLR are in conformity with the entries of Revenue Records.

It is further submitted that the Hon'ble High Court of AP, Hyderabad while disposing the WA. No.936 of 1999, 1407 of 2002 and WP No.890 of 2001 and WP No.801 of 2001, vide order dated 14th April 2003 (reported in AP 2003 (5) ALT 143 (DB) and 2003 (5) ALD 150 (DB)) in respect of

Bungalow No.219 situated in Revenue Sy.No.170 of Thokatta Village ::OS. NO.97/2009::

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made the following orders" "We fail to appreciate as to how the said judgment would rent any assistance whatsoever to the point urged by the learned Senior Counsel appearing on behalf of the Writ Petitioner. The entries in the instant case remained in GLR ever since 1956. The Union of India is asserting its ownership, right title and interest in the land. No survey or settlement records are made available by the writ petitioners to show that the entries, if any, made therein disclose any private ownership. It is not as if there is any variance between the entries made in the record of rights and entries in GLR. On the other hand, the entries made in pahani patrika produced by the appellants in clear and categorical terms reveal the nature of the land as the Government land. The entries made in the revenue records are perfectly in conformity with entries made in GLR".

From the above, it could be seen that plaintiffs cannot make any further agitation before this Hon'ble Court to deny the Government ownership rights in Bungalow No.201 which is placed under the management of the Defence Estates Officer, AP Circle, Secunderabad. It is once again stated that these defendents had never denied the Occupancy of the Bungalow No.201 and its possession by the recorded Holder of

Occupancy Rights as per PO No 179 of 18.36. The land appurtenant to the Bungalow belongs to the Government of India, Ministry of Defence and the management of the Bungalow and appurtenant land was placed under the defendents No.2- Defence Estates Officer, AP Circle, Secunderabad

Whereas, the Supreme Court in a case related to Chief Executive

Officer Vs Surendra Kumar Vakil & Others reported in (1999) 3 SCC 555 has upheld the entries in the GLR as proof of title.

xii) With regard to para 2, it is submitted that the statements made in this para are denied and disputed except those are specifically admitted herein. It is submitted that the Secunderabad Cantonment was located at

Princely State under the treaty entered between the HEH Nizam,

Hyderabad and East India Company in the year 1766 to provide subsidiary force whenever required and the Nizam thereby ceded to the Company

Circars of Ellore, Chicacike, Rajamandri, Mustafnagar, Murtazanagar and

Guntur. Thereafter two more treaties in the year 1768 and 1790 were ::OS. NO.97/2009::

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concluded. The Resident of the East India Company was stationed in the year 1788. Troops were encamped in the year 1794 near Hussain Sagar

Tank. Thereafter in the year 1798 a treaty was concluded. The

Cantonment of Secunderabad was established in the year 1806. The

Governor General in Council has issued orders from 1773 onwards and in the year 1813 regarding the allotment of houses to the officers in the

Cantonment GGO was issued. Thereafter many number of GGOS were issued including the GGO No.179 of 1836 and 700 dated 03rd July 1855.

xiii)With regard to para 3 and 4, it is submitted that the statements made in these paras are denied and disputed except those are specifically admitted herein. It is submitted that the Plaintiffs herein are supposed to submit the details in respect of Cantonment boundary, the purpose of delimited area, the reasons for issuing Bungalow numbers Serially, the design of the Bungalow in Greco Roman architecture by the British

Government, the reason for using English instead of native language, the title in respect of the land, if at all it is not Government land, the record from the Nizam Government or from the present day of Government of

Andhra Pradesh with an evidence. The land within the delimitated area within the Cantonment of Secunderabad was demarcated with "M" Pillars.

In Survey of India Map of 1929 available in the 2nd defendant's office clearly shows "M" Pillars with number It is a fact that there are some lands categorized as Paiga, Saf-i-khas and privately owned lands which were not included under any classification while preparing the GLR of 1933.

They were not occupied by the Government of India, Ministry of Defence.

The same has been reflected in the GLR of 1956 as B (2) State

Government. Neither in the GLR of 1933 nor in the GLR of 1956 the above lands are included in the Government of India, Ministry of Defence. The

Plaintiff is required to submit the evidence in the light of the above recorded evidence shown in case of Bungalow No.148 (Old Bungalow

No.134) of Secunderabad Cantonment about Old Grant land.

xiv) With regard to para 5, it is submitted that the statements made in this para are denied and disputed except those are specifically admitted herein. It is submitted that the General Land Register of 1933 was ::OS. NO.97/2009::

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prepared under the Secunderabad and Aurangabad Land Administration

Rules 1930 under Section 280 of the Cantonment Act, 1924 (This Act is in continuation to all other previous Cantonment Acts including the Act XXII of 1864 and its predecessors, since, the East Indian Company established its administrative control in India). In this Act, the Resident and Military

Estates Officer was defined under section 2 (a). The Act means the

Cantonment Act 1924, and Section 2 (b) Resident means the Resident of

Hyderabad, Section 2 (c) the Military Estates Officer means an Officer appointed by the Government of India to perform the duties of the Military

Estate Officer under these rules. Under these rules the classification of the land has been made for the purpose of maintaining the General Land

Register under Rule 3.

The classification of land under rule 6 of the Secunderabad and

Aurangabad Cantonment Land Administrations Rules 1930 are reproduced below:

6. Classification of land. - For the purpose of the General Land Register prescribed by rule 3, land in the Cantonment shall be divided by the

Resident into:

(A) land used for Government purpose, military or civil; (B) land occupied or available for occupation by the public on leases or otherwise for purposes subsidiary to Cantonment Administration; (C) land belonging to the Cantonment Authority, or transferred to them under section 108 of the Act

Note:- Nothing in these rules shall apply to State, Sarf-i-Khas, Paigah or privately owned land or to land in the thirteen villages referred to in the

Residency Orders Notification No.41, dated 28th August 1906, and the villages of Kowkur and Mahadeopur.

From the above, it is very clear that the land categorized as B does not include as a Private land. It is also stated that the states, Sarf-i-Khas or privately owned land or lands in the 13 villages were not included in the classification of the GLR. The present Bungalow was then in the Tarbund ::OS. NO.97/2009::

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Lines in the Cantonment of Secunderabad is an Old Grant Bungalow therefore classified under "B" and placed under the management of the

Military Estate Officer. The limits of the villages were changed from time to time. The present day, Thokatta Village is not part of the 13 Villages and the olden days Secunderabad Cantonment delimitated areas clearly demarcated all the Bungalows were within the delimitated area within the "M" Pillars under the delimitation commission of 1902.

The Resident of Hyderabad has appreciated the efforts of the

Special Land Officer vide his letter dated 5th March 1934 which is reproduced below:

"I am directed to acknowledge, with thanks, the receipt of your letter

No.528/S.L.O dated 5th February 1934, and to state that the General Land

Registers and maps of Secunderabad and Bolarum prepared by you, have been approved of by the Hon'ble the Resident, and are being forwarded to the Military Estates Officer, Secunderabad Cantonment, for record, In his office. I am to convey to you the appreciation the Hon'ble Resident of the careful and accurate manner in which this work has been carried out under orders, and to request you to communicate this to the staff who are engaged on this work”.

After the Independence the GLR was re-written under the

Cantonment Land Administration Rules 1937 as because this CLA Rules are applicable to all over India and replaced the CLA Rules of 1930 which was specifically applicable to Secunderabad and Aurangabad

Cantonments. Based on the CLA Rules 1937, the GLR 1956 was prepared as because the portion renditioned to the State Government was excluded from the GLR.

xv) With regard to para 6, it is submitted that from the preceding paras it is very clear without any ambiguity that the Bungalow No.201 is an Old

Grant property, Morever, the plaintiffs, herein have no locus standi challenge the Government's title over the land

REPLY TO PARA- IV

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xvi) With regard to para 1,2 & 3 of the plaint, it is submitted that the plaintiff herein is suppressing the facts and elaborated half part of the court proceedings. The petitioner had not whispered about the Second

Appeal bearing No.251/89 against the decree in AS No.357/80 on the file of the Addl Chief Judge City Civil Court preferred against the judgment and decree in O.S No.1747 of 1974. In the above case, the Hon'ble Court vide order dated 17-11-2002 had set aside the findings of the trial court.

The extract of the same is reproduced below:

The Hon'ble Court observed that:

"From the nature of the suit in this case, it is wholly unnecessary to go into the question of title to the land because as I have already stated above, even if the owner of land constructs a building contrary to the permission granted to him by the Cantonment Board or a Municipal authority, the Cantonment Board or a Municipal authority can give a notice for demolition and if a suit is filed for injunction restraining the demolition of the building, the question of title to the land does not arise at all even incidentally. Therefore, though both the courts below have given concurrent findings regarding the question of title to the land, these findings are absolutely for the purpose of the suit and therefore those findings are set aside.

The learned counsel for the appellant raised several contention regarding resjudicata and non compliance of section 80 CPC. In view of my findings that the plaintiff cannot compel the Cantonment Board to compound the offence, and therefore he cannot seek an injunction of restraining the Cantonment Board from demolishing the structure and therefore it is not necessary for me to go into all these other contentions".

xvii) With regard to para 4 of the plaint, it is submitted that the statements made by the plaintiff in this para is denied and disputed except those on record. The contention of the plaintiff in this para is that the authorities have ignored the perpetual injunction and finding with regard to the trial court. In fact, the plaintiff herein is conveniently ignoring the Hon'ble High Court Order dated 17-11-2002 in S.A No.251 of ::OS. NO.97/2009::

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1989 in AS No.357/80 in OS No.1747/1974, wherein. the findings of the trial Court were set aside. It may not be out of place to mention that orders of the trial Court in respect of B.No.201 was not final and more the same was set aside by the Second Appellate Authority, therefore the sameisnotbindingonthedefendantsherein.

xviii) With regard to para 5, it is submitted that the Plaintiff is also placing a reliance on the judgment delivered in the case pertaining to

Union of India and another Vs Vasavi Co-Operative Housing Society Ltd reported in 2002 ALD(5) DB 532. The Union of India has already challenged the said judgment in the Hon'ble Supreme Court of India, by way of filing SLP and the matter is sub judice. Hence the aforesaid judgment has not become final and hence not binding on the defendants.

Notwithstanding the same, the nature of land involved in the said case and the land involved in the present suit are not identical in nature and classification. The land involved in the above judgment is classified as

Class A(1) land owned by the Government of India, Ministry of Defence.

Whereas, the land involved in the subject suit is classified as B-3 Old

Grant owned by the Government of India, Ministry of Defence.

It is humbly submitted there was adjudication in respect of the bungalow No.219 by the Hon'ble High Court of Andhra Pradesh in W.A

No.936/1999 and batch reported in (2003) 5 ALD 143(DB) Union of India

Vs Hussain Rasheed. In the said judgement, the following points were categoricallyobservedbytheHon'bleHighCourt.

The ratio laid down by the Division Bench of the Hon'ble High Court of Andhra Pradesh in Union of India Vs Vasavi Co-operative Housing

Society reported in (2002) S ALD 532 stating that the General Land

Register do not have evidentiary value, shall not apply to the present case i.e Bungalow No.219, as a Record of Right is considered only in case of agricultural lands and in the said Union of India Vs Vasavi Co-operative

Housing Society Limited, it was a comparison between the entry in

Agricultural Land records or Records of Rights and the General Land

Register.

The Hon'ble Division Bench categorically held that in the instant case, i.e in respect of Bungalow No.219, both the General Land ::OS. NO.97/2009::

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Register(GLR) and also the land records le Pahani Patrika in respect of

Survey No.170 of Thokatta village shows that the property belongs to the

Government of India. In General Land Register the Bungalow No.219 is shown as Government of India property and in Pahani Patrika, the property is referred and "Sarkari Abadi"

The Hon'ble Division Bench categorically held that in the instant case i.e in respect of Bungalow No.219" we fail to appreciate as to how the said judgment (Union of India Vs Vasavi Co-operative Housing Society Ltd reported in 2002 (5) ALD 532(DB)) would render any assistance whatsoever to the point urged by the learned senior counsel appearing on behalf of the writ petitioner. The entries in the instant case remained in

GLR ever since 1956. The Union of India is asserting its ownership, right, title and interest in the land. No survey or settlement record are made available by the writ petitioner to show the entries, if any, made therein disclose any private ownership. It is not as if there is any variance between the entries made in record of rights and the entries in GLR. On the other hand, the entries made in Pahani Patrika produced by the appellants in clear and categorical terms reveal the nature of the land as the government land. The entries made in the revenue records are perfectly in conformity with the entries made in GLR. The observation of the Hon'ble High Court equally applies to the instant case also as because the entries made in the Pahani Patrika of Rev. Sy No.200 of Thokatta village, in which the subject property is situated, in clear and categorical terms reveal the nature of the land as the Government land. The entries in the GLR also in clear and categorical terms reveal the nature of the land as Government land. The entries in the revenue records are perfectly in conformity with the entries made in GLR.

One of the Hon'ble Judge in both the judgments i.e Union of India and others vs S.M.Hussain Rasheed and others reported in (2003) 5 ALD 143(DB) and Union of India Vs Vasavi Co-operative Housing Society

Limited reported in (2002) 5 (ALD) 532 was Hon'ble Mr. Justice B.

Sudershan Reddy (at present Hon'ble Justice of the Supreme Court of

India.

xix) With regard to para 6 of the plaint, it is submitted that the ::OS. NO.97/2009::

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statements made by the plaintiffs in this para is denied and disputed except those on record. The plaintiff is making false statements that the plaintiffs and their predecessors in title have been in possession and enjoyment of the suit schedule property. With regard to the possession of the plaintiffs over the Bungalow, it is submitted that they are not concerned with the subject bungalow, Plaintiffs herein are neither the

Holder of Occupancy Rights(Owner and Occupier) of the Bungalow No.

201 nor GPA holder or having any authority/authorisation to file this plaint.

If at all they have purchased the bungalow as alleged in the plaint, neither the fact was brought to the notice of the defendants nor the same was recognized by the Defendants herein. Prior permission of the Government was not obtained before entering into any such alleged transaction. As regards the possession of the predecessors, as already stated in above paras that holder of occupancy rights is recorded in the name of Mrs.

Edith Maud Corfield D/o E.C. Farrel and W/o E.L. Corfield. The nature of holder's right were recorded as Old Grant and the landlord was recorded as Central Government. According to the terms of Old Grant the land and trees growing thereon belongs to the Central Government and Holder of

Occupancy Rights enjoys only occupancy rights over the land. The Holder of Occupancy Right can transfer the interest, and rights over the

Bungalow with the prior approval of the Government of India, Ministry of

Defence but the land appurtenant to the Bungalow is owned by the

Government of India, Ministry of Defence, therefore, it cannot be transferred. In view of the facts stated above, the question of title by adverse possession does not arise.

xx) With regard to para 7 & 8 of the plaint, it is submitted that the statements made in this para are denied and disputed except those are specifically admitted herein. The plaintiff herein had given the référence of report dated 20-2-1989. Before discussing on the above report, it is important to examine as to whether any decision has been given by the

Government of India, Ministry of Defence over it or otherwise. When the

Government of India, Ministry of Defence has not arrived at any decision, then the said report is also not binding on the respondents or any other individual. Moreover as already stated, not only GLR entries but also the ::OS. NO.97/2009::

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Revenue records reveal that the subject land has been recorded as

Sarkari Abadi(The Bungalow No.201 of Secunderabad Cantonment is falling in part Revenue Sy No.200 of Thokatta village).

xxi) With regard to para 9 to 13 the statements made in these paras are denied and disputed except those are specifically admitted herein. It is a fact that the Secunderabad and Aurangabad Cantonment Land

Administration Rules 1930 were made applicable to the Cantonment of

Secunderabad. The Cantonment Act 1924(11 of 1924) was made applicable to the Cantonments of Secunderabad and Aurangabad also and as this Act itself did not provide for the administration of lands, separate rules known as the Secunderabad and Aurangabad Cantonment Land

Administration Rules 1930 were promulgated. In rule 2 of the

Secunderabad and Aurangabad CLA Rules 1930," the Act" has been defined as the Cantonments Act 1924" as applied to the Cantonment of

Secunderabad and Aurangabad. Further under rule 3, the

Military(Defence) Estates Officer of the Cantonment is required to prepare and maintain a General Land Register (GLR) of all land in the Cantonment.

Under rule 6, for the purpose of the GLR, land in the Cantonment was divided by the Resident into Class (A), (B) and (C). Under rule 8, the executive management of the above lands was entrusted. Note appended below to rule 6, excludes the application of the above classification to state, Sarf-i-khas, Paigah or privately owned land or the lands in the 13

Moghlai villages referred to in the Residency Orders Notification No.41

dated 28-8-1906. In the said orders, it has been stated that the limits of

the 13 Moghlai villages shall be the limits fixed by the Revenue

Department of His Highness Government. However, this was subsequently superseded vide S.R.O No.451 dated 12-12-1956. This aspect was also elaborately discussed in the case pertaining to P.V.Jaya Rao Vs.

Cantonment Board,Secunderabad- reported in AIR 1961 Andhra Pradesh 113(V4B C31). The GLR of the Cantonment of Secunderabad was for the first time prepared during 1933 by Capt C.M James Special Land Officer and the same was approved by the Secretary to the Resident at

Hyderabad. While preparing the GLR, the land in the Cantonment was divided into Class(A),Class(B) and Class(C) as per the provisions of rule 6 ::OS. NO.97/2009::

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of the Secunderabad and Aurangabad CLA Rules 1930. However, provisions of the rule 6 of the Secunderabad and Aurangabad CLA Rules 1930. However, those lands covered under the Residency Orders

Notification No.41 dated 28-8-1906 was not included in any of the classification i.e Class (A), (B) or (C). On the other hand these lands were entered in the GLR of 1933 by giving separate numbers and mentioning its area. In the description column, they were shown either as Sarf-i-khas or paigah or state land or private land, as the case may be, and the column Classification was left blank. As already stated above, the occupancy holder of old grant sites will not transfer the occupancy rights of the land without the prior permission in writing of the competent authority. However, while preparing the GLR the Special Land Officer appointed for the purpose came across some cases where the occupants of certain Old Grant sites failed to produce the requisite authority under which they came in occupation of the site. In such cases, the Special Land

Officer recorded in the GLR that the Authority for occupation of the site not known.

By a Memorandum of Agreement dated 1-12-1945 executed between the HEH the Nizam's Government and the Resident of Hyderabad, area south of Alexander Road(now known as the Sardar Patel Road) was existed from the Cantonment of Secunderabad and restored to the

Nizam's Government. With the liberation of the Hyderabad State from the provincial princely regime of the Nizam and its integration to the Indian

Union, the Cantonment Land Administration Rules 1937 (CLAR 1937), enacted under Section 280 of the Cantonment Act 1924 were made applicable to all Cantonments, including Secunderabad and the corresponding rules - the Secunderabad and Aurangablad Cantonment

Land Administration Rules 1937 in force in part B State of Hyderabad was repealedvideRule1-AoftheCLARules1937.

With the excision and restoration of certain portions of lands from the Cantonment of Secunderabad to the Nizam's Government, the limits/boundaries of the Secunderabad changed and accordingly revised limits/boundaries were defined. This necessitated the need for rewriting ::OS. NO.97/2009::

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the GLR of the Secunderabad Cantonment. The GLR was re written during 1955-56 in accordance with the provisions of the CLA Rules 1937. While re-writing the GLR, the lands which were classified as Class (B) land in the

GLR of 1933, were subsequently classified either as Class B(3) and Class

B(4) - the landlord being shown as the Central Government. On the other hand, the land recorded as either as State or Sarf-i-khas or Paigah or private(which was not classified in any of the category i.e Class (A),(B) or (C) in the GLR of 1933) were classified as Class B(2) in the GLR of 1956.

The land in question is an Old Grant site and accordingly given the classification as Class(B) in the GLR of 1933. This land was not falling within the Moglai villages as alleged in this para. While re writing the GLR during 1955-56 under the provisions of CLA Rules 1937, it was classified as class B(3) Old Grant and landlord shown as Central Government.

The Hon'ble Supreme Court of India in the case of Chief Executive

Officer vs Surendra Kumar Vakil and others reported in (1999) 3 SCC 555- has upheld the entries in the GLR as proof of title.

xxii) With regard to para 14, it is submitted that the statements made in this para are denied and disputed except those are specifically admitted herein. It is submitted that it is a fact five (05) Bungalows were resumed by the Government. The Plaintiff can ask for equality of law and therefore he can ask for resumption of the Bungalow for public purpose instead of requesting the Government to give the Government land appurtenant to the Bungalow No.201. The details of 05 (five) Bungalows resumed under the Regulations of the GGO 179 dated 12 9-1836 is furnishedasunder:

SlGLRBungalowAreainNameoftheRemarks NSy.No.No.Acresoccupancy holder o. 172242.03Nawab Salar JungResumed weffrom 26.12.85 274351.16Shri P.J.Robert-d0- 19.1.1987 375340.97Nawab Khan-do- 19.12.1985 476330.26Shri Jaswantmal-do- 19.12.1985 ::OS. NO.97/2009::

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5529 175-A1.22Shri S.R.Reddy-do- 16.6.1978 xxiii) With regard to Para 15, it is submitted that the statements made in this para are denied and disputed except those are specifically admitted herein. It is submitted that as stated in the above paras, the representation of the GPA Holder Shri B.V. Prasad was disposed off by the

Government of India, Ministry of Defence vide DO letter No.88/17/22 /22/MP/DS(Lands)/02/R&D/DE/SC/72 dated 21st June 2005 of the then

Defence Minister Shri Pranab Mukherjee and therefore there is no further need to entertain any third party application. As regards the title over the land in question, as already stated supra, this bungalow is situated in part of Revenue Sy. 200 of Thokatta Village which is Sarkari Abadi as per

Revenue Records. According to GLR, land comprising GLR Sy. No. 614 of

Secunderabad Cantonment is owned by the Government of India, Ministry of Defence. The entries in the instant case remained in GLR ever since 1933. No survey or settlement records are produced to show that the entries, if any, made therein disclose any private ownership. It is not as if there is any variance between the entries made in the record of rights and entries in GLR. On the other hand, the entries made in pahani patrika in clear and categorical terms reveal the nature of the land as the

Government land. The entries made in the revenue records are perfectly inconformitywithentriesmadeinGLR.

From the above, the plaintiff cannot make any further agitation

before this Hon'ble Court to deny the Government ownership rights in

Bungalow No.201 which is placed under the management of the Defence

Estates Officer, AP Circle, Secunderabad. It is once again stated that these defendants had never denied the occupancy of the Bungalow

No.201 and its possession by the Holder of Occupancy Rights as per GGO

No.179 of 1836. The land appurtenant to the Bungalow belongs to the

Government of India, Ministry of Defence and the management of the

Bungalow and appurtenant land was placed under the Defence Estates

Officer, AP Circle, Secunderabad.

Whereas the Supreme Court in a case related to Chief Executive

Officer Vs Surendra Kumar Vakil & Others reported in (1999) 3 SCC 555 ::OS. NO.97/2009::

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has upheld the entries in the GLR as proof of title.

xxiv) With regard to para No.16, it is submitted that the representation

dated 10-3-2007 submitted by Shri Prakash Reddy was disposed of on 3-

11-2008 and the same was sent to Sri Prakash Reddy through registered post on 4-11-2008 and the said Sri Prakash Reddy received it on 8-11- 2008. In compliance of the order dated 16-10-2008 of the Hon'ble High

Court in WP No.21558/08, the 2nd defendant herein considered the representation dated 10-3-2007 and passed an order on 24-3-2009 in continuation of the earlier order dated 3-11-2008 and order copy sent to

Sri Prakash Reddy through Registered post on 24 3-2009. In fact the plaintiff herein had filed Contempt Case No.216 of 2009 against the defendants. The Hon'ble High Court of AP dismissed the same vide order

dated 9-4-2009 in CC No.216 of 2009. The operative portion of the order

reads as under :

"Indisputably, the 3rd respondent(ie the 2nd respondents in the present suit)considered the representation dated 10-3-2007 submitted by

Sri Prakash Reddy and passed appropriate order and communicated the same to Sri Prakash Reddy. Except the representation of Sri Prakash

Reddy, there is no other representation submitted by the petitioner. In that view of the matter, the order passed by the 3rd respondent amounts to substantial compliance of the directions given by this court in W.P

No.21558 of 2008 dated 16-10-2008.

This Contempt Case is accordingly, dismissed".

xxv) With regard to para 17 & 18, it is submitted that the statements made in this para are denied and disputed except those are specifically admitted herein. As per the GGO 179 of 1836, Resumption notice dated 21-10-2008 was issued to the HOR and not to the plaintiff as because the they are no way concerned with the subject property. Therefore the question of issuing notice prior to the resumption notice does not arise. It is further submitted that the representation was disposed of on 3-11- 2008 and also on 24-3-2009. Notice for resumption was issued on 24-11- 2008 under letter No.20/47/RESU/. Therefore the statement made by the

Plaintiff is totally false, misleading and suppression of facts. Against the ::OS. NO.97/2009::

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said Resumption Notice, the plaintiff had filed W.P.No.3340/2009 and W.P

M.P No.471 of 2009 in W.P No.3340 of 2009 to stay all further proceedings pursuant to the resumption notice dated 21-10-2008. But the

Hon'ble Court had not given any interim order and stated that "on perusal

of the records shows that the impugned notice was issued as early as on 21-10-2008 and by way of publication in newspaper on 26-11-2008 but plaintiff filed the Writ Petition on 18-2-2009. Against the said order the plaintiff herein had filed Writ Appeal 331 of 2009 and the Hon'ble Court had on 25-2-2009 granted the Status quo order and not the Stay Order.

xxvi) With regard to para No.19, it is submitted that the representation

dated 10-3-2007 submitted by Shri Prakash Reddy was disposed of on 3-

11-2008 and the same was sent to Sri Prakash Reddy through registered post on 4-11-2008 and the said Sri Prakash Reddy received it on 8-11- 2008. In compliance of the order dated 16-10-2008 of the Hon'ble High

Court in WP No.21558/08, the 2nd defendant considered the representation dated 10-3-2007 and passed an order on 24-3 2009 in continuation of the earlier order dated 3-11-2008 and order copy sent to

Sri Prakash Reddy through Registered post on 24-3-2009. In fact, the plaintiff herein had filed Contempt Case No.216 of 2009 against the defendants herein. The Hon'ble High Court of AP dismissed the same vide order dated 9-4-2009 in CC No.216 of 2009. The operative portion of the order reads as under :

"Indisputably, the 3rd respondent[i.e the 2nd respondent in the present suit considered the representation dated 10-3-2007 submitted by

Sri Prakash Reddy and passed appropriate order and communicated the same to Sri Prakash Reddy. Except the representation of Sri Prakash

Reddy, there is no other representation submitted by the petitioner. In that view of the matter, the order passed by the 3rd respondent amounts to substantial compliance of the directions given by this court in W.P

No.21558 of 2008 dated 16-10-2008.

This Contempt Case is accordingly, dismissed".

xxvii) With regard to para No.20 & 21, it is submitted that the ::OS. NO.97/2009::

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statements made in this para are denied and disputed except those are specifically admitted herein. The plaintiffs are circumventing the matter in order to mislead this Hon'ble Court. The plaintiff filed W.P No.21558 of 2008 seeking a direction to the respondents therein to consider their representation Dated 10-3-2007 for rectification of entries in GLR in respect of Bungalow No.201. The same was disposed of vide order dated in W.P No.21558 of 2008. The operative portion of the order reads as under:

"The limited grievances of the petitioners is that the respondents have not considered their representation dated 10-3-2007 for rectification of entries in GLR in respect of Bungalow No.201.

In that view of the matter, the Writ Petition is disposed of directing the respondents to consider the representation of the petitioner dated 10-3-2007 with regard to the rectification of entries in respect of

Bungalow No.201, and pass appropriate orders as expeditiously as possible, preferably within a period of four weeks from the date of receipt of a copy of this order. No costs."

In compliance of the above orders, the 2nd defendant herein(respondent in the Writ Petition) disposed of the representation

dated 10-3-2007 submitted by Sri Prakash Reddy on 3-11-2008.

However, by concealing the above facts the plaintiff filed Contempt

Case No.216 of 2009 complaining the disobedience of the order dated 16- 10-2008 passed in W.P No.21558/2008. It was also contended by the plaintiff herein in their affidavit filed before the Hon'ble High Court that the representation dated 10-3-2007 is required to be considered by 1st respondent /Union of India, rep by its Secretary, Ministry of Defence] and therefore the order passed by 3rd respondent [Defence Estates Officer,AP

Circle, Secunderabad] cannot be in tune with the direction given by the

Hon'bleHighCourtintheWritPetition.

The Contempt Case was dismissed by order dated 9-4-2009 in CC

No.216/2009. The operative part of the order is reproduced below:

"Indisputably, the 3rd respondent considered the representation 10- 3-2007 submitted by Sri Prakash Reddy and passed dated appropriate order and communicated the same to Sri Prakash Reddy. Except the ::OS. NO.97/2009::

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representation of Sri Prakash Reddy, there is no other representation submitted by the petitioner. In that view of the matter, the order passed by the 3rd respondent amounts to substantial compliance of the directions given by this court in W.P No.21558 of 2008 dated 16-10-2008.

ThiscontemptCaseisaccordingly,dismissed".

From the above, it is clear that the Hon'ble High Court itself held that the 2nd Defendant has rightfully considered the representation dated 10- 3-2007 of Sri Prakash Reddy and passed appropriate order and communicated the same to Sri Prakash Reddy. The Hon'ble High Court having decided the issue once for all, the contention of the petitioners that the 2nd Defendant herein has no authority in considering and rejecting the representation is baseless and deserves to be rejected.

xxviii) With regard to para 22, it is submitted that the statements made in this para are denied and disputed except those are specifically admitted herein. The plaintiff herein is no way concerned with.

Bungalow No.201.It is further submitted that plaintiff herein are neither the Holder of Occupancy Rights(Owner and Occupier) of the Bungalow

No. 201 nor GPA holder or having any authority/authorisation to file this affidavit for any relief.

xxix) With regard to para 23, it is submitted that the plaintiff had issued the 80(1) of CPC, therefore this issue has become infructuous.

xxx) With regard to para No.V, it is submitted that the statement of the plaintiff that cause of action arose on 12-3-2009 when the rejection letter

dated 3-11-2008 was handed over by the defendant herein is hereby

denied. As because representation dated 10-3-2007 submitted by Shri

Prakash Reddy was disposed of on 3-11-2008 and the same was sent to

Sri Prakash Reddy through registered post on 4 11-2008 and the said Sri

Prakash Reddy received it on 8-11-2008. Further it is very clear from the letter dated 3-11-2008 that Government decision was obtained during the year 2004 itself. The relevant portion of the DO letter from Hon'ble b ::OS. NO.97/2009::

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Minister of Defence Shri Pranab Mukherjee bearing No.88/17/22/MP/DS (Lands)/02/4992-FM/RM dated 30-11-2004 is reproduced below:

"the opinion of Prof Chaman Lal Gupta former RRM and observation of Ministry of Law and Justice has been examined in detail. However, as stated earlier, as per our records, the bungalow premises is held on "Old

Grant terms" as such the ownership of the subject land rests with the

Government. In view of the above, it is not possible to accede to the request for amending the records and declaring the said bungalow as private property.

It is submitted that in view of the above facts stated above, the

Defendant had got all the rights to dispossess the plaintiff from Bungalow

No. 201. The Government of India, Ministry of Defence will suffer irreparable loss and damages if such frivolous claims/petitions are entertained by this Hon'ble Court.

It is submitted that the plaintiff approached the Hon'ble Court without clean hands and suppressed the real fact. The suit schedule property is belongs to Government of India, Ministry of Defence. The plaintiff has filed the present case with a malafide intention and with an intention to grab the suit schedule property. The Plaintiffs are not having any right in and over the suit property. The plaintiffs are not entitled any relief against the defendants

It is therefore prayed that this Hon'ble Court may be pleased to dismiss the suit with exemplary cost in the interest of justice.

II. Issues: The following issues are settled for trial:

i.Whether the plaintiffs is entitled for declaration as prayed for?

ii.Whether the suit schedule property is a private property as claimed by the plaintiffs or an old grant as claimed by the defendants and recording GLR?

iii.Whether the plaintiffs are entitled to a direction to delete the entries in the entries in the General Land Register as prayed for?

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iv.To what relief?

III Evidence: On behalf of the plaintiffs, PW1 is examined and defendants

DW1 is examined. Ex.A1 to A19 and Ex.B 1 and B3 are marked. Both sides filed written arguments for consideration by the Court.

Having considered the arguments and material on record, this court is of the view that instead of answering the issues separately, the decision would be conveniently given if a comprehensive analysis is made on the following points.

PW1 in his evidence reiterates the facts mentioned in the plaint in his chief affidavit in view of his evidence on his behalf Ex.A1 to A19 marked.

Ex.A1Certified copy of Trust Deed-DOC. No.607/1895, dt.04.07.1895.

Ex.A2Certified of Registered Sale Deed along with typed copy DOC. No.911/1916, dt.22.11.1916.

Ex.A3. Certified copy of Registered GIFT DEED, DOC.No.187/1932, dt.26.10.2032.

Ex.A4 Certified copy of Settlement Deed DOC.No.1982/ 692, dt.07.11.1969. Ex.A5.Copy of Sale Deed bearing pending document No.1469/2005.

Ex.A6Copy of Sale Deed bearing pending document No.1375/2005, dt.25.22.2005.

Ex.A7Certified copy of Judgment made Plaint Written Statement, Deposit PW1 and PW2.

Ex.A8Copy of Judgment passed in O.P.No.19/1952, dt.01.11.1961.

Ex.A9Report of Sri W.P. Bartion, dt.10.10.1926.

Ex.A10Report of the Director General K.M. Sebastion, dt.20.02.1989.

Ex.A11News paper publication issued by the defendants publishing resumption notice, dt.22.10.2008, dt.26.11.2008.

Ex.A12Copy of letter issued by Deputy Secretary to the Government of India, Ministry of Defence, Addressed to Director General, Defence Estates, Dt.28.02.2002.

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Ex.A13. Copy of letter rejection along with Acknowledgment and postal receipt filed before Honourable High Court in Contempt case No.216/09, dt.03.11.2009.

Ex.A14Original Compromise Decree along with Memorandum of Compromise in O.S.No.13 of 2015 on the file of I ACJ Court, Secunderabad LoK Adalath, dt.23.12.2005

Ex.A15Copies of Tax Receipt Challan.

Ex.A16Certified copy of Order of the Honourable High Court in WA (SR) No.18906/09.

Ex.A17Certified copy of General Land Register of 1933 (Sch.A).,A Ex.A18Certified copy of General Land Register of Survey No.614.

Ex.A19Market Value Certificate, dt.20.02.20009.

During cross examination he admitted that he and 2nd plaint have jointly purchased suit property under Ex. A5 and Ex.A6. Sale Deeds. The original of Ex.A5 and A6 are pending registration before the registering authorities. The schedule-A property under Ex.A5 and A6 does not form part of the suit schedule property. It is further admitted that in his plaint and chief affidavit that the defendants publishing the resumption notice in newspapers on 26-11-2008 without complying the directions of the

Hon’ble High Court of AP to consider the representation dated 10-03-

2007. The original of Ex.A1 is in his custody. They are paying land tax and water charges. The suit schedule property is not mutated in the names of plaintiff no 1 and 2. The defendants are not the parties to any of the title documents. He further admitted that the defendants are not the owners of the suit schedule property and they are not necessary parties, as such they are not made parties to the title documents. His vendor filed suit in

OS.No. 1747 of 1974 against the defendants for injunction suit restraining

the defendants demolishing the suit building, on the file of Hon’ble 8th ::OS. NO.97/2009::

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Asst. Judge, City Civil Courts, Hyderabad and the same was decree vide

Judgment and decree dated 15-10-1979. It is further admitted that against the judgment and decree the defendants filed appeal vide A.S.No.

357 of 1980 and the same was dismissed confirming the decree passed by the trial court. Against which the second appeal no. S.A. no 251 of 1989 and they have no knowledge of the second appeal. The plaintiffs 1 and 2 are not parties to any of the legal proceedings. He is not aware that S.A. No. 251 of 1989 is allowed. He filed interim injunction petition vide I.A. No. 1355 of 2009 and the same was dismissed. He do no remember whether they have filed any appeal against the orders passed in I.A. No. 1355 of 2009. He is not personally aware of the history of the suit schedule property mentioned in his plaint and chief affidavit. The witness adds that the same information was given by his vendors. He is not in physical possession of the suit schedule property by virtue of Ex.A5 and A6. The W.P. No. 21558 of 2008 is filed against the resumption notice published in news papers and W.P. No. 3304 of 2009 is filed on the defendants voluntarily failed to give resumption notice in spite of specific directions passed in W.P. NO. 21558 of 2008. They have filed the contempt petition no. 216 of 2009 in WP No. 21558 of 2009 and the said application was dismissed/disposed off since their representation was considered. He admitted that Ex.A8 is the true xerox copy and not the certified copy and that they the plaintiffs are not the parties to the Ex.A8 proceedings and that similarly Ex.A9 is also xerox copy. Ex.A9 was prepared by Sir William Barton along with KM Sabastian for submitting a report for cantonment lands and bungalows. He have obtained from court proceedings in other chief judges courts. Ex.A10 is the report submitted ::OS. NO.97/2009::

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by KM Sebastian Director General, Defense Estates. The said report is pertained to old grant terms. It is further admitted that Ex.A12 has any relevancy with the suit property. It is admits that EX.A17 in the remarks column it is written that authority for occupation of site is not known . But column no. 7 shows that his vendor name (F.C. Farrell) as Ex.A18 plaintiff no. 3 as holder of occupancy rights and the nature of old grants. The suit schedule property is the private property. It is further admitted that without establishing their rights over the suit schedule property they mortgaged that same thereby, third party interest and that he was not aware of the contents of EX.A1 document. Except mentioning the bungalow old no. 203 and new no.201 situated at Tarbund, Secunderabad the extent of the PSP is not mentioned. In the document there is a mention that the bungalow and apartment land covered by a compound wall. The original Ex.A2 is also with the banker under mortgage. Even in

Ex.A3 there is no mention about the extent of the property and it is mentioned that the house and apartment land with the compound wall.

The original of Ex.A4 is not available and only filed certified copy and it is only manuscript and it is difficult to read. Witness volunteers it is a registered settlement deed executed by M/s Edithmaud Corfield in favour of her children. It is further admitted that Ex.A5 and A6 are photo copies, the original of the same are pending for registration before the District

Registrar, RR Dist, vide pending document bearing nos. 1469/2009, dated 16-12-2005 and pending document no. 1375/2005. Since 2005 onwards

EX.A5 and A6 are in pending registration status. Witness volunteers that they are going to pay the difference stamp duty and get the document released. It is further admitted that they have not mentioned in para 8 of ::OS. NO.97/2009::

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the plaint that pending registration of Ex.A5 and A6 are on account of non payment of deficit stamp duty. In para 8 of their plaint it is mentioned that the registration of document is stalled at the instance of the second defendant. They have not filed any case challenging the action of the registration authority in keeping their sale deeds pending and that they are going to initiate action against the registering authority on the same issue. They enquired and came to know that as on the date of document

dated 16-12-2005 the vendor no. 1 and 2 are alive and they are

represented by GPA holder Prakash Reddy.

It is further admitted that there is no mention about Mr Prakash

Reddy as a GPA holder of vendor no 1 and 2 and his signatures are find place in all the pages of document bearing Ex.A5 and A6 and that Sri. S.

Prakash Reddy is not holding any GPA in favour of vendor no 1 and 2. The building ad mentioned in OS.No. 1747 are in existence as on today and the said suit is filed per perpetual injunction to restrain the defendants therein for demolishing the suit buildings. No declaration of title is sought. The present suit for the purpose of declaration of title is filed against the defendants herein. In the written statement of D3 cantonment board is filed in OS.No. 1747/1974 that the plaintiff therein reconstructed modern cottages up issuance of notices for demolition of the same they requested the cantonment board to compound the offence on payment of fee written statement filed by cantonment board in OS.No, 1747/1974 is shown to the witness and he has admitted that and it is filed and marked as Ex.A7.

It is further mentioned that Ex.A8 order in OP.NO. 19/1952 neither the plaintiffs nor the defendants are the parties to the proceedings. The ::OS. NO.97/2009::

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witness volunteers that it relates to the neighbouring bungalow of the suit property as such the facts are relevant to the present suit. Ex.A9 is document pertaining to Sir William Bartons memorandum and tenure of land. In the said memorandum it is mentioned that cantonment board is having direct control over the building activities and permission to the acquire to build buildings. The said WP was disposed off with a direction to dispose off the representation of writ petitioners. Accordingly Ex.A13 was issued to Sri A. Prakash Reddy on the same subject matter. Ex.A14 is the settlement among private parties and D1 and D3 are not parties to the said settlement. Ex.A15 is a treasury challan pertaining to collection nala tax on the suit schedule property.

It is further admitted that cantonment board was collected property tax on the suit property from one Edith Maud Corfield from 1997 to 2000.

That subsequent to Ex.A5 and A6 sale deeds they made representation to

D3 to mutate their name in the property register of the cantonment board as owners for payment of property tax but, the copy of application is not as document on their behalf in this case and issue is not persuing in their end as the present suit for declaration is pending. Ex.A16 is the interim orders passed in Writ appeal SR. No. 18906/2009, wherein the parties to the appeal ie., the plaintiffs 1 and 2 and defendants 1 to 3 were directed to maintain Status-Quo for 6 weeks. He further admitted that further development of the said appeal is ascertained to his counsel.

Ex.A17 GLR of 1993 the holder of occupancy rights are vests with one

R.C. Farrell.

On behalf of Defendant, defendant DW1 examined. He reiterated the facts mentioned in the written statement in his chief affidavit in lieu ::OS. NO.97/2009::

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of his evidence. During cross examination he stated that he is not aware that copy of EX.A1 submitted to D1 office for mutating owner’s name

Smt. Dith Maud Corfiled and also not aware that whether Mrs Edith Maud

Corfied has inherited the suit schedule property under Ex.A2. He further admitted that he is not personally aware about the facts of the case and also not aware of the physical possession of the suit schedule property.

He stated that they are having documents to show that all bungalows belongs to Central Government. He have not filed any documents to substantiate the version as stated in his written statement an chief affidavit. He have not filed any document to show that the land appurtenant to bungalow no. 201 heritable or not transferable. It is further mentioned that they are various court cases/litigations are pending before the various courts pertaining to wrong entries in GLR. He is not aware that Vasavi Co-Op. Housing Society and others before

Supreme Court of India in Civil Appeal No. 4702/2004 has establishment their title against the defendant pertaining to wrong entries made in GLR.

He stated that he was not aware that many committees were formed to study the wrong GLR entries and that on such wrong GLR entries if to correct the same. He have not filed any rental receipt to show whether the suit schedule property was given on rent to Major Thomson, Deputy

Advocate General for a monthly rent of Rs 50/- he stated that he have not filed any document to show that the suit schedule property was in the

Tarbund Lines of Cantonment of Secunderabad and was classified under “B”. It is stated that occupancy right has got nothing to do with the ownership over SSP. He cannot say how many times the GLR entries rewritten and he was not aware whether the Thokatta Village was part of ::OS. NO.97/2009::

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Secunderabad Cantonment since beginning. He stated that he was not aware of the suit proceedings in OS. NO. 1747/1974 and that it was not the title suit but simple injunction suit against the Secunderabad

Cantonment Board for demolishing the structures. It is mentioned that the Bungalow No. 201 and appurtenant land within the compound wall is part and parcel of SSP and that it is a single unit. He stated that he was not aware that the defendants while re writing the limits/boundaries of

Secunderabad after 1945 reclassifying the land without inviting of actual owners. He stated that he was not aware of the existence of any

Bungalows around SSP. He stated that he was not aware of any sale transactions pertaining to 5 bungalows as mentioned in his chief affidavit.

He stated that he was not aware whether the Government has regularized some Bungalows and withdrawn their claims up to bungalow no.90.Itisfurtherstatedthattheletterno.

88/17/22/MP/DS(lands)/02/4992-FM/RM dated 30-11-2004 was issued on the basis of records maintained by the defendants. It is stated that since the plaintiffs are rightful owners, no other persons including defendant can disposes the plaintiff from the SSP.

The counsel for defendant no. 3 during his cross examination has stated that he know the contents of the plaint and also the contents of the written statement filed by D1 and D2. It is mentioned that it is signed by

Defence Estate Officer (DEO), AP Circle, Secunderabad. He stated that the suit schedule property under GLR Sy. No. 614, admasuring Ac 5-740, classified as B3 old grant under the management of Ministry of Defence and the landlord is Central Government and that the extract of GLR

Sy.No. 614 is marked as Ex. B1 on confrontation. It is further mentioned ::OS. NO.97/2009::

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the suit schedule property is cited as Bungalow no. 201, owner/landlord of the property is Central Government and managed by MEO (Military

Estate Office). The plan shown to him in respect of GLR Sy.No. 614 and the same is confronted and marked as Ex.B2. It is further mentioned that the GLR Sy. No. 614 is corresponding to revenue Sy.NO. 200, Thokatta

Villa, Secunderabad. The Civil Sy.No. 200 is corresponding to GLR Sy.No.

614 shown in the pahanis in column no. 11 shown as ‘Abadi Sarkari as well as in column no.2 mentioned as pattedar as “Sarkari”. The pahanis is confronted to the witness same s marked as Es.B3. As Ex.B1 , B2 and B3, the land is classified as old grant and the landlord is central government and no persons are entitled to claim right title over the said property including change of nature of property.

Discussion & analysis of points with the help of evidence:

The admitted facts need not be proved. Further it is discussed about the exhibits filed by both PW1 and DW1 in their evidence and cross examination .

Point No.1: Whether the suit property is a private property:

(i) There is no dispute that in Ex.A1 trust Deed executed by Edulji Sorabjee

Chennai the schedule No. 1 at page No. 5 reads:

“Bungalow No. 203/201 with, out-houses, stables and compound situated in Tarbund Lines, Secunderabad now occupied by monthly rent of H.S.

Rs. 50/grounded by North: Bungalow No. 200/203 belong to Mr. Bapuji Edulji

Chennai; South: Public Road; East Plain; West: New Road.”

The Ex.A1 trust deed is not a disputed document. It is pertinent to note that in para 5 of the Written Statement of the defendants 1 and 2, it is stated that ::OS. NO.97/2009::

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under the plaint referred trust deed the Holder of Occupancy Rights is enjoying only 'occupancy rights' on the defence land comprised of Bungalow No. 201.

This averment shows that the defendants are admitting the 'land' comprising of Bungalow was in the possession of the executant of trustee, but it is only in the capacity of 'occupant' and not owner. The above statement further indicates that there is no dispute as to the identity of the property. This is a significant point to be kept in the notice of the Court because, the other contention of the defendants is that only bungalow was given for the occupation of the officers of British Indian Army and the land was not given. It is apt, as rightly pointed out by the plaintiff's counsel that in the Written

Statement itself at paragraph (6) it is averred that “ the Bungalow No. 201 of

Secunderabad Cantonment was subsequently transferred to Mrs Edith Maud

Corfield D/o E.C. Farrel and W/o E.C. Corfield and in all these transactions the land appurtenant to the bungalow was not transferred as per the laid down rules.

In the plaint, at para 3 to 5, it is averred that the trustees appointed under the original of Ex.A1 sold the land and building in open auction on 13-10-1916 and one R.C. Farrell purchased the same under Registered Sale Deed Dt. 22-11- 1916 (Ex.A2) and on his death, his father E.C. Farrell succeeded to the estate, and he had obtained Letters of Administration on 26-11-1931 and being absolute owner, he has gifted the said property to his daughter Esdith Maud

Corfield under registered gift deed dated 26-10-1932 (Ex.A3). Later Mrs. Corfield under settlement deed dt. 7-11-1969 gifted the said property under registered settlement deed dt. 7-11-1969 (Ex.A4) in equal shares. In course of time, it is averred in the plaint at para 6 that one of the daughters Mrs. Imogence Grace

Gaebele bequeathed her half share to Mrs Blossom Hyacinth Corfield (Plaintiff

No. 4) under registered settlement deed dt. 7-11-1968. In turn, the plaintiff no.3 who is son of Edwin L. Corfield and the 4th plaintiff have jointly sold the ::OS. NO.97/2009::

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schedule property to the plaintiffs 1 and 2 along with owners of adjoining property together executed Registered sale deed on 16-12-2005 (Ex.A5) in which Schedule B relates to the plaint schedule property.

As against this part of the plaint averments, in para 7 of the Written Statement, the defendants have stated that Edith Maud Corfield 'inherited' the rights , interest, title to the extent the predecessor had in the bungalow No. 201, but no such transfer is effected in respect iof the land appurtenant to the bungalow.

Thus, it may be taken that the defendants are admitting that Bungalow is private property, and it has been transferred or inherited from time to time.

However, evidently all the documents which are 30 years old in their origin, clearly show that not only the bungalow 201 but also the land was the subject matter of transfer from time to time.

In the light of the above events and documents, it is clear for over a century, there are series of transactions indicating and describing the property as private property of the predecessors of plaintiffs 3 and 4 and at no point of time, there is any evidence that the Bungalow 201 alone was enjoyed by the generations, leaving the land appurtenant top the bungalow. In view of the documents Ex.A1 to A4 are entitled to the presumption of genuineness is attached to documents of 30 years old. Sec. 90 of the Indian Evidence Act provides in this regard.

Presumption as to documents thirty years old.

Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper the

Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of document executed and attested by the persons by whom it purports to be executed and attested.

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Explanation - Documentsare said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper it it is proved to have had a legitimate orgin, or the circumstances of the (vi) particular case are such as to render such an origin, probable.

There is a presumption in law thus, under sec.90, that it would be genuine and such presumption shall be disputed or rebutted by the defendants. The certified copies of documents of 30 years old, whose authenticity is not denied during course of evidence enjoys the said presumption and therefore, this Court records a finding that Ex.A1 to A4 establishes that the property is private property. However, this finding shall be subject to the decision on the reliability of the contention of the government, basing on the entries in the General Land

Register (GLR).

Point No.2: Whether entries in GLR confers title on the Defendants:

i) According to the Written Statement the suit property was in the possession of different persons including C.E. Corfield, as an 'old grant' and the occupancy holder can utilize the land for dwelling purpose but has no authority to transfer.

In para 4 of the plaint, it is stated that under Firman No. 5 of 1316 Fasli (16-01- 1907) the Nizam placed 13 Mogulai villages in which the suit property is located under the control of British India for limited purpose of Civil Administration without conferring any right in the land, but the ownership was not transferred to the British government . It is pleaded by the plaintiffs that permission granted by the Nizam was with a specific condition that all rights in the land continued to be in the Government of Hyderabad or Jagirdars or owners or occupants of the lands and therefore the theory of 'old grant' or presumed or lost grant does not apply to the suit property.

ii) Controverting the pleading of the plaintiff as above, in the written ::OS. NO.97/2009::

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statement at para 9 it is contended by the defendants that According to the GLR, the land comprising GLR Sy No. 614 of Secunderabad

Cantonment admeasuring Ac. 5.74 is classified as B (3) placed under the management of Defence Estate officer and for Bungalow No. 201 the occupancy rights are recorded in the name of Mrs. Edith Maud Corfield. It is therefore clear that possession for over a century with the Plaintiffs' predecessors is admitted by the defendants, but their plea is that the possession of plaintiffs and their predecessors is only permissive and not as rightful owners. This defence is based on the entried in the GLR. The

GLR is marked as Ex.B1 and in Col. 9 as rightly contended, the names of

Mrs. Edith Maud Corfield is shown as 'Holder of Occupancy Rights' and in col. 10, the nature of rights is shown as 'old grant'. Except the GLR, the

Defendants did not produce any document to show that the property is given to certain persons including the plaintiffs' predecessors with occupancy rights; on the other hand, the undisputed documentary evidence for over a century is clearly establishing the fact that the property is being treated as private property with absolute rights and not mere occupancy rights. In the set of the above circumstances, the presumption under law is the 'possession follows title' is attracted. The

Supreme Court made a reference to this presumption, and explained its scope as follows:(Ref: Nazir Mohamed vs J. Kamala. AIR 2020 SC 4321) “The maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case it is admitted that the

Appellant-Defendant is in possession and not the Respondent Plaintiff.” ::OS. NO.97/2009::

:: Page No.50 of 61::

iii) in this regard it is useful to refer the observations of the Hon'ble Supreme

Court, more particularly with reference to facts which are relevant in the case on hand.

“49. From the pleadings filed by the Appellant-Defendant, it is patently clear that the Appellant-Defendant claimed the right of ownership of the suit property on the basis of a deed of conveyance, executed over 75 years ago.

The Appellant/Defendant has claimed continuous possession since the year 1966 on the strength of a deed of release executed by his father. In other words, the Appellant-Defendant has claimed to be in possession of the suit premises, as owner, for almost 28 years prior to the institution of suit.

50. In the facts and circumstances of this case, the Appellant-Defendant was owner of only a portion of the suit property but has admittedly been in possession of the entire suit property, and the Appellant-Defendant has, in his written statement, claimed to be in continuous possession for years to years as owner, the defence of the Appellant in his written statement was, in effect and substance, of adverse possession even though ownership by adverse possession had not been pleaded in so many words.

iv) Therefore, the burden of proof lies on the defendants to show that the plaintiffs' possession in the suit property for over a century, is only permissive in character. There is no evidence adduced by the defendants , in support of the entries in the GLR-Ex.B1. The Counsel for both sides, in their written arguments have submitted on the value of entries in the GLR to support their respective contentions.

The law is settled, regarding the value of the entries in the Revenue Records.

The Supreme Court held that the entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title”. (Ref:

Prahlad Pradhan VS Sonu Kumhar, (2019) 10 SCC 259) ::OS. NO.97/2009::

:: Page No.51 of 61::

(v)The Hon'ble Supreme Court was hearing a civil appeal wherein the contention raised by the appellants was that since Mangal Kumhar (predecessor) was the recorded tenant in the suit property as per the Survey

Settlement of 1964, the suit property was his self-acquired property. Rejecting the said contention, the court observed that “ The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumption value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. As a consequence, merely because Mangal Kumhar's name was recorded in the

Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property.”

(vi) In another reported case, the Supreme Court (Ref: Suraj Bhan vs.

Financial Commissioner, (2007) 6 SCC 186) had occasion to deal with the value of entries of mutation and Jamabandi and laid down the law that it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records of Jamabandi have only “fiscal purpose”, it., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it an only be decided by a competent civil Court. This view is continued even in the latest judgment of the Hon'ble Supreme Court in Jitendra Singh vs The State of

Madhya Pradesh 2021 (6) Supreme 185.

(viii) On the value of the entries in GLR, the Hon'ble division bench of the AP

High Court examined the issue in Union of India vs Vasavi Co-operative

Housing Society Limtied, 2002 (5) ALD 532 (DB) as extracted below for ready reference.

::OS. NO.97/2009::

:: Page No.52 of 61::

“Whether the defendant has got any title or right in respect of the suit property basing on the entries in G.L.R. Register and if so whether the said

Register will effect the rights of plaintiff?”

Based on the disputed fact before the division bench, it has also posed the question for adjudication viz., “...In such view of the matter, the inevitable question that falls for consideration is, is there any extent of land belonging to the defendants in

Survey Nos. 60 and 61 of Kakaguda village? Whether the whole of the land, whatever may be its extent, is a private land? Before the division bench the

Cantonment authorities contended that the entries made in G.L.R. Maintained under the provisions of the Cantonment Land Administration Rules, 1937, in the regular course of administration of all the cantonment lands, are admissible in evidence and the said entries prevail over the entries made in the revenue records maintained under the various enactments, rules and notifications issued by the State Government.”

The relevant fact considered by the Hon'ble division bench is contained at para 11 of the report which reads:

“We are required to appreciate and note that Kakaguda village where the suit schedule lands are situated was in Hyderabad State ruled by the Nizam till 25-1-1950. There is no dispute whatsoever that the said village was not in

British India. Ex.A82 is a copy of the notification dated 28th August 1906 issued by the Government of Nizamul Kul Asifjar and as per the said notification 13 Mughlai villages including Kakaguda village where the suit lands are located were handed over to the British Government by the Nizam of

Hyderabad to administer as a part of Cantonment for civic purposes without conferring any right in the land...”

(viii) This court notices the facts in dispute in the case on hand are similar to ::OS. NO.97/2009::

:: Page No.53 of 61::

the facts referred in the reported decision to facilitate this court to take the above decision as binding precedent. At different paras of the reported judgment, the history of GLR is traced. In Para 15, the division bench referred to the Firman issued by the Nizam as follows:

“...the Supreme Court while referring to the nature of sovereign function exercised by the Nizam of Hyderabad observed that “prior to integration of

Hyderabad State with the Indian Union and the coming into force of the Indian

Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers.

He was the supreme legislature, the supreme judiciary and the supreme head of the executive and there were no constitutional limitations upon his authority to act in any of these capacities. The firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; nay, they would override all other laws which were in conflict with them. So long as a particular firman held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later Firman at any time that the Nizam will.”

The Division Bench at the end made a categorical observation thus:

“ In the circumstances, the General Land Register can at best be considered as a piece of relevant evidence along with other evidence. The defendants have not produced any other evidence in support of their title and ownership of the suit schedule land. It is not possible to reject the case of the plaintiff only on the strength of the entries made in G.L.R,. register. The entries in General Land

Register by themselves do not constitute the title. The entries may be pressed into the service as a piece of evidence in support of the claim of ownership or title by the Defence Estate Officer.”

(ix)It is significant to note that the entire history referred by the defendants in their written statement is already traced by the Division Bench in the above ::OS. NO.97/2009::

:: Page No.54 of 61::

judgment and ruled that GLR entries have no value of title. However, the defendants placed reliance on the judgment of the Supreme Court Chief

Executive Officer vs Surendra Kumar Vakil & Other (1999) 3 SCC 555.

Facts in that reported decision shows that the question before the Supreme

Court was whether the government is entitled to resume the property from occupants under the doctrine of last grant. Obviously, the facts in that case show that the property in dispute, for which resumption is initiated was admittedly in the village was under the control of Central Government.

Further, the value of GLR entries is not a question considered by the Supreme

Court. In that view of the matter, the division bench of AP High Court judgment in Vasavi (Supra) is relevant and binding on this court, both on facts and law.

(x)In view of it, it is considered that except the GLR, the defendants did not adduce any evidence to show that the subject property is part of a village, and the government is entitled to resume the same. On the other hand, by long usage, treatment, and series of registered sale deed/documents for over a century, the plaintiff are able to establish that they are the absolute owners of the property.

Point no. 3: Earlier litigation in civil court:

(I) There is prior litigation, which is required to be referred to. The 3rd plaintiff filed OS 1747 of 1979 against the defendant seeking perpetual injunction restraining the defendants from demolishing the suit building No. 201 (old 203) in Tarbund, Thokatta village within the Secunderabad Cantonment Board limits.

The judgment in that suit dated 15-10-1979 is marked as Ex.A7.

(ii)On issue No. 4 the Court in Ex.A7 held that the defendants are estopped from contending that the suit property is Government

Property. On issues No. 1 and 2, regarding Title and possession of the plaintiffs, as claimed in that suit, the Court recorded a finding in favour of ::OS. NO.97/2009::

:: Page No.55 of 61::

the plantiff therein (Plaintiff No. 3 herein). However as per the WS, the said judgment though confirmed in the 1st appeal, set aside in the 2nd appeal SA 251 of 1989.

(iii) Another litigation relied upon by the plaintiffs is the Order of the Chief

Judge, City Civil Court in OP No. 19 of 1952 dated 01-11-1961 in which Miss

Feroz Nadir Shah Chenoy who is one of the predecessors of the plaintiff, admittedly, is one of the petitioners. The said proceedings show that they arose out of Land Acquisition proceedings. The Letter of the Secretary,

Revenue Dept. N. 2325 dated 6-09-1904 was referred by the Chief Judge where in certain villages which are situated within jurisdiction and to be made by the

Nizam's Government for exercise of jurisdiction. There are 11 villages mentioned therein including Sl. Nos. 1 and 2, viz., Pedda Thokatta and Chinna

Thokatta. At page 12 of Ex. A8, the court recorded this finding:

iv)“Barring these two notifications of 1904 and 1906, no other notifications are placed before the court to show as to when these villages came under the control of the British Military authorities and whether these villages were handed over entirely for all administrative purposes to the British Military

Authorities. A reading of the notifications would show that the Nizam's

Government reserved certain rights and only handed over the areas for certain purposes and the jurisdiction exercised by the Cantonment authorities was a limited. It was confirmed, as the notification itself speaks, to ecclesiastical, criminal Police and sanitary jurisdictions and no civil jurisdiction was conferred on the Resident. Therefore, it is obvious that the Nizam's Government did not intend to part with its suzgianity or sovereignty over these areas and that the handing over of these areas was to enable the Cantonment authorities to extend their limits and exercise such jurisdiction and as may be necessary for maintaining law and order and also for maintaining the sanitary conditions of ::OS. NO.97/2009::

:: Page No.56 of 61::

the places...”

(v) Thus, in the earlier litigation, as back as in 50's decade, there is judicial pronouncement that the giving of Tokatta village for Cantonment , does not indicative of vesting total and absolute rights but only for administrative purposes. This judgment by competent court is relevant under sections 41, 42, and 43 of Evidence Act. Section 40 to 44 of the Indian Evidence Act, 1872 lays down provisions relating to judgments of the Court of Justice, when relevant.

Sections 40 to 43 deal with the subject of relevancy of judgments. Judgments are admissible as res judicial under section 40 and as relating to matters of public nature under section 42. Judgments other than those mentioned in sections 40, 41 and 42 may be relevant under section 43 if their existence is a fact in issue or is relevant under some other provision. Section 44 lays down not only a rule of law relating to evidence, but also a rule of procedure.

(vi) The existence of a judgment over a matter which is again in question is a satisfactory piece of evidence, though, of course, nothing is said about its evidentiary value in the Evidence Act. The only thing that the Act provides is that whenever a judgment is relevant by reason of any of the exceptions, its value may be demolished by showing that it was delivered by a court of incompetent jurisdiction or that it was obtained by fraud or collusion. This amounts to an indirect assertion that unless the value of a judgment is so demolished, it is valuable as a piece of evidence.

(vii) Thus, the earlier litigation and the judgments/orders show that since the decade of 1950, Courts are holding that the property is not vested in the

Government with absolute rights. It is further shown that the plaintiffs' predeesors are in continuous possession and enjoyment and exercising right of ownership, by gift, sale etc and all these transactions which are public in nature were never shown to have been resisted or objected to by the defendants. Even in the OS 1747 of 1974, the plaintiffs predecessor in title, ::OS. NO.97/2009::

:: Page No.57 of 61::

more particularly, the 3rd plaintiff in this suit raised the question of title and claimed exclusive title over the subject property. Even though the findings in that suit are ultimately reversed in second appeal, the fact remains that the 3rd plaintiff and his other co-owners are continuing in possession of the property. It is significant that except resisting the right of the plaintiff's, the defendants have never approached civil court to get its rights declared.

Therefore, it is observed that the earlier litigation shows that the property is not with absolute rights vested in the defendants, but it is given by the Nizam, for administrative purposes only.

Point No. 4: Entitlement of plaintiff for declaratory relief:

No doubt, the relief of declaration of title is an equitable relief and it is to be granted within the discretion of the Court. Discretion has to be exercised when there is equity in favour of the plaintiff. In the case on hand, the record shows that the plaintiffs and their predecessors are enjoying the property in their own right, with absolute rights, treating it as their own property, for over a century.

In this long time, there are several registered document, litigation which cannot be denied by the defendants. When a cloud is casted on the title of the defendants, the defendants allowed the plaintiffs to continue in possession of the property, but never obtained a declaratory relief from the Court.

The conduct of the plaintiffs is very clean and without any suppression of fact and it is not the case of the defendants, that the plaintiffs have approached the court with unclean hands. On the other hand, the defendants though a cloud is casted on their title to property never ventured to approach any civil court, perhaps, they are satisfied with GLR entry to claim property and they might be under the impression that they need not obtain any decree from any Court. It is clear misconception.

Any person who has been denied of the legal character and not ::OS. NO.97/2009::

:: Page No.58 of 61::

necessarily the legal right may sue against the person denying. Se. 34 of

Specific Relief Act provides that:

Sec 34. Discretion of Court as to declaration of status or right:

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying , or interested to deny, his title to such 2 character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.

PROVIDED that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so

Article 113, Limitation Act 1963 provided limitations for declaratory suits is three years from the date when the right to sue accrues. Generally, the right to sue accrues only when the cause of action arises, that is the right to prosecute to obtain relief by legal means. A declaratory suit without a prayer for possession is governed by Article 113 (old Article 120) (Pieree Leslie & Co. Ltd. Vs

Wapshare, AIR 1969 SC 843)

On comparison of equities and the rights exercised by the plaintiffs and their predecessors over century long period, this court is of the firm view hat the plaintiffs are entitled for the reliefs as prayed for.

V: Relief:

In the result, suit is decreed with cost and declaring the plaintiffs are the absolute owners of the suit schedule premises bearing no. 201 including the appurtenant land thereto admeasuring Ac. 5-74 denoted as

GLR Sy.No. 614 situated at Tadbund, Thokkatta Village, Secunderabad.

The defendants 1 and 2 are directed to delete wrongful entries in ::OS. NO.97/2009::

:: Page No.59 of 61::

the General Land Register of 1956 of the defendants in respect of suit suit schedule property with regard to the following columns therein (1) class (2) by whom managed (3) landlord and (4) nature of holders rights.

Decree of perpectual injunction is granted restraining the defendants, their men, agent, henchmen, workmen, representatives or any other person or persons claiming through or under them in any capacity from interfering with peaceful possession and enjoyment of the suit schedule property by the plaintiff.

Typed to my dictation by the Stenographer, corrected ad pronounced by me in the open Court on this the 29th day of April 2022.

V Addl. Metropolitan Sessions Judge, (Mahila Court), Hyderabad. FAC. Spl. Judge for trial of offences under SCs & STs(POA) Act cum VI Addl. Metropolitan Sessions Judge Secunderabad ::OS. NO.97/2009::

:: Page No.60 of 61::

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:-

PW1 K. Narender Reddy

FOR DEFENDANT:-

DW1 Subhankar Nath

EXHIBITS MARKED

FOR PLAINTIFF:-

Ex.A1Certified copy of Trust Deed-DOC. No.607/1895, dt.04.07.1895.

Ex.A2Certified of Registered Sale Deed along with typed copy DOC. No.911/1916, dt.22.11.1916.

Ex.A3. Certified copy of Registered GIFT DEED, DOC.No.187/1932, dt.26.10.2032.

Ex.A4 Certified copy of Settlement Deed DOC.No.1982/ 692, dt.07.11.1969. Ex.A5.Copy of Sale Deed bearing pending document No.1469/2005.

Ex.A6Copy of Sale Deed bearing pending document No.1375/2005, dt.25.22.2005.

Ex.A7Certified copy of Judgment made Plaint Written Statement, Deposit PW1 and PW2.

Ex.A8Copy of Judgment passed in O.P.No.19/1952, dt.01.11.1961.

Ex.A9Report of Sri W.P. Bartion, dt.10.10.1926.

Ex.A10Report of the Director General K.M. Sebastion, dt.20.02.1989.

Ex.A11News paper publication issued by the defendants publishing resumption notice, dt.22.10.2008, dt.26.11.2008.

Ex.A12Copy of letter issued by Deputy Secretary to the Government of India, Ministry of Defence, Addressed to Director General, Defence Estates, Dt.28.02.2002.

Ex.A13. Copy of letter rejection along with Acknowledgment and postal receipt filed before Honourable High Court in Contempt case No.216/09, dt.03.11.2009.

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Ex.A14Certificate copy of Compromise Decree along with Memorandum of Compromise in O.S.No.13 of 2015 on the file of I ACJ Court, Secunderabad LOK Adalath, dt.23.12.2005

Ex.A15Copies of Tax Receipt Challan.

Ex.A16Certified copy of Order of the Honourable High Court in WA (SR) No.18906/09.

Ex.A17Certified copy of General Land Register of 1933 (Sch.A).,

Ex.A18Certified copy of General Land Register of Survey No.614.

Ex.A19Market Value Certificate, dt.20.02.20009.

For Defendants:-

Ex.B1Extract from the General Land Register, Secunderabad

Cantonment G.L.R, Survey No.614/ Mutation.

Ex.B2Part Plan of G.L.R. Survey No.614, Secunderabad Cantonment show thus.

Ex.B3Pahani (4) Page, dt. 16.11.2017-DW1.

: Typed to my dictation by the Stenographer, corrected ad pronounced by me in the open Court on this the 29th day of April 2022.

V Addl. Metropolitan Sessions Judge, (Mahila Court), Hyderabad. FAC. Spl. Judge for trial of offences under SCs & STs(POA) Act cum VI Addl. Metropolitan Sessions Judge Secunderabad

Fair Judgment in SC.No.519/20131

IN THE COURT OF THE V ADDITIONAL METROPOLITAN SESSIONS JUDGE:

AT HYDERABAD

Present: Smt. M. Kanaka Durga V Addl. Metropolitan Sessions Judge, (Mahila Court), Hyderabad.

DATED THIS THE 29 th DAY OF APRIL, 2022

SESSIONS CASE NO. 519 OF 2013

(in PRC No. 08 of 2013)

Committed by : Sri. P. Vasanth III Addl Chief Metropolitan Magistrate, Hyderabad. Crime Number and Police Station: Crime No. 282/2012, PS. Banjara Hills, Hyderabad. Name and description of the: A1. Ravella Rajeswari @ Tara Chowdary, Accused D/o Kondaiah, Aged about 30 years, Occ: Business, R/o H.No. 8-2-268/K/20, 2nd Floor, Navodaya Colony, Road No. 2 Banjara Hills, Hyderabad, N/o Prakasam District.

A2. Ragineni Durga Prasad @ Prasad, S/o Karuna Murthy, Aged about 30 year, Occ: Business, R/o H.No. 8-2-268/K/20, 2nd Floor, Navodaya Colony, Road No. 2 BanjaraHills,Hyderabad.N/o Vijayawada.

A3.Shaik Mohammed Haneef @ Haneef, S/o Shaik Abdul Wahab, Aged about 44 years, Occ: Artist Coordinator, N.K.G. Production, Kachiguda, Hyderabad. N/o Prakasham District.

(NBW pending against A2 )

Name and description of the: The State represented by The Inspector of Police, Banjara Hills P.S., Hyderabad. Prosecution conducted by : Addl. Public Prosecutor Accused defended by: Sri. Jakkamsethi Ravindra, Counsel for accused. Offence charged: Under section 370, 370(A)(2) of IPC and section 3, 4, 5 of the Immoral Traffic Prevention Act Plea of the accused: Pleaded Not guilty. Finding of the Court: Found not guilty Result : In the result, A1 and A3 are found not

V AMSJ

Fair Judgment in SC.No.519/20132 guilty for the offences under section 3, 4, 5, 6 of the Immoral Traffic Prevention Act and accordingly they are acquitted under section 235(1) Cr.P.C for the said offence. A1 and A3 are found not guilty for the offences under section 354, 344, 509, 323, 420 and 506 of IPC and accordingly they are acquitted under section 235(1) Cr.P.C for the said offence. The bail bonds of the A1 and A3 shall stand valid on record for a period of six months as per Sec 437-A Cr.P.C. The unmarked case property if any shall be destroyed after expiry of appeal time. MO1, MO7, MO8 and MO12 shall be confiscated to the state after expiry of appeal time. MO11 three pan cards shall be returned to its owner after expiry of appeal time. MO2, MO5, MO6, MO9, MO10, MO13 shall be destroyed after expiry of appeal time and MO3 and MO4 shall be returned to its owner on proper identification and acknowledgment.

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

1.The Inspector of Police, PS Banjara Hills, Hyderabad has filed this charge sheet against the accused/A1 and A3 for the offences under section 3, 4, 5, 6 of the Immoral Traffic Prevention Act, Sec. 354, 344, 509, 323, 420, 323, 506 of IPC in Cr.No. 282/2012.

2.The brief facts of the case in a nutshell are that-

On 31-03-2012 at 1830 hours LW1/Marepally Lakshmi lodged complaint stating that she was working as sales girl at Papa Rao Jewelry Shop,

Visakhapatnam. One of their customers Tara Chowdary (A1) and her husband

Prasad (A2) visited their shop and they enquired with her about her profession, financial status etc., they advised her to work at Hyderabad so that she would get handsome salary and that they would arrange a good job for her. They asked LW1/

V AMSJ

Fair Judgment in SC.No.519/20133

Marepally Lakshmi to come to Hyderabad immediately. On 28-02-2012

LW1/Marepally Lakshmi came to Secunderabad Railway Station. After getting down she rang up to A1. Then A1 along with her husband ie., A2 came and took her to their house. On the next day ie., on 29-02-2012 they sent two persons to her room and they misbehaved with her and beat her severely. Later they wrongfully confined her in the house for 14 days for participating in sexual intercourse. Later A1 sent LW1/Marepally Lakshmi along with a customer outside.

She managed to escape from the customer immediately went to Visakhapatnam.

She further stated that A1 threatened her over phone that the photos and CDs of the complainant are available with her. Out of fear of A1, LW1/ Marepally Lakshmi could not visit the Police Station. Hence she approached HMTV and she requested for taking necessary legal action in the matter.

Basing on the complaint, LW17/B.Ramesh registered a case in Cr.No.

282/2012 under section 3, 4, 5 and 6 of Prevention of Immoral Traffic Act, 1956 and sec 354, 344, 509, 323 and 506 IPC and case file submitted to LW18/M.

Sudarshan for investigation and he took up investigation.

During the course of investigation, LW18/M. Sudarshan examined LW1/

Marepally Lakshmi and recorded her statement. As on 31-03-2012, A1 who was arrested in Cr.No.s 182/2012, under section 382, 323, 506 IPC and 281/2011, under section 353 IPC of Banjara Hills Police Station was present in the police custody, LW18/M. Sudarshan took her into custody. On interrogation she voluntarily admitted her guilt. LW18/M. Sudarshan effected her arrest and he secured the presence of LW10/M. Praveen Kumar and LW11/G. Shankar and in their presence recorded their confessional statement A1 and seized her cell phone make videocon SIM No. 9666410777 from her possession.

V AMSJ

Fair Judgment in SC.No.519/20134

In pursuance of the confession of A1 on the same day, LW18/M. Sudarshan with the assistance of staff took A2 into custody at his house and seized his cell phone Samsung, SIM 9550809199. Further LW18/M. Sudarshan seized the following items as material objects at the instance of A1 and A2 in the presence of

LW10/M. Praveen Kumar and LW11/G. Shankar.

1. Micromax cell phone

2. One Nokia N-95 cell phone

3. Samsung cell phone

4. One Reliance cell phone

5. One cell phone make Nokia-2690

6. PAN Cards 3 Nos. on the name of Durga Prasad, P.L. Prasad and P. Ramu

7. Kama Sutra ribbed condoms (one box)

8. Photograph containing the photo of accused A1

9. Two sets of Home Guard applications

10. Pen type video recorder.

LW18/M. Sudarshan secured the presence of LW2 and LW3 and recorded their statements. Both accused produced before the court and remanded them to judicial custody. On 10-04-2012, both the accused were interrogated and recorded their additional confessional statements.

In pursuance of the confession of A1, the following items have been seized from her house at her instance under cover of panchanama in the presence of mediators LW12K. Raji Reddy and LW13/M.S. Raju.

1. Laptop make compaq containing audio voices/recordings, video clippings.

2. Cell phone memory cards (7) Nos. wrapped in a small paper with names of individual/subject on each wrapper.

3. Receipt Dt. 30-08-2011 executed by Alluri Kasi Raju in favour of Kum. Ravella

Rajeshwari Devi on Rs. 100/- bond paper towards receipt of amount of Rs 2 lakhs as hand loan blank cheque paper towards receipt of Rs. 2 lakhs as hand loan, blank cheque no. 009186 of ICICI bank, Malakpet Branch, Hyderabad issued in

V AMSJ

Fair Judgment in SC.No.519/20135 favour of R. Rajeshwari signed by A. Kasi Raju in favour of R. Rajeshwari.

4. Receipt dt 27-02-2012 executed on Rs. 50/- bond paper by C. Hemalatha and

Suresh in favour of Ravilla Rajshwari towards receipt of ICICI bank, Srinagar

Colony Branch, Hyderabad for Rs. 20,000/- in favour of R. Rajeswari signed by C.

Hemalatha.

5. Cheque bearing no. 756869 of ING Vysya Bank Limited, Habsiguda Branch,

Hyderabad in favour of Ravella Rajeswari for Rs. 50,000/- signed by S.V.

Veerabhadram and Promissory Note dt. 12-05-2010 executed by S.V.

Veerabhadram in favour of Ravella Rajeswari towards the receipt of Rs. 50,000/-

6. Bond executed on Rs. 50/- bond paper dt. 27-12-2011 by Burugupalli

Varalakshmi, W/o Kameswara Rao in favour of Ravella Rajeswari towards the receipt of Rs. 50,000/-

7. Blank application for issue of clearance certificate, Form 26, Form 29 and Form 80 signed by Veerabhadram.

8. Marriage photos of Ravella Rajeswari @ Tara Chowdary with accused Rajendra

Prasad (8) Nos.

9. C.D.s (90) Nos. containing voices of Political Leaders, Police Officers and also contents of problems of her village like “ Bhooakramana Samasya” - Boddurai amsya” Samasya” - Meka Samasya Chakali Lakshmaiah”- TV News Chinni Krishna

Vivadam” etc.

10. Application forms for the enrollment of Home Guards (3) Nos. affixing photographs of the applicants viz. (1) one on the name of Surneedi G.

Ramakrishna (2) Pasupuleti Naga Babu and (3) Bellamkonda Eswar Rao.

11. Ten SIM cards, out of which Tata Indicom SIM-3, Tata Docomo SIM-1, IDEA SIM- 2, Airtel SIM -2, Uninor SIM-1 and Vodafone SIM-1.

LW18/M. Sudarshan made efforts to locate the absconding accused A3. On

V AMSJ

Fair Judgment in SC.No.519/20136 26-04-2012 he was apprehended and effected his arrest and on interrogation he voluntarily admitted his guilt. LW18/M. Sudarshan secured the presence of mediators and recorded his confessional statement and seized Sony digital camera “Cyber Shot” 12.1 mega pixels from his possession which was used by him in taking obscene and other photographs as per the directions of A1. A3 confessed that he has been associating with A1 in all her illegal activities. A3 was produced before the court on 27-04-2012 and got him remanded to judicial custody.

On requisition of police, LW16/Smt. K. Sailaja recorded the statement of

LW1/Marepalli Laxmi under section 164 Cr.P.C. on transfer of LW18/M. Sudarshan,

LW19/E. Chandra Shekar Goud took up further investigation, secured the presence of LW4 to LW6 and recorded their statement. They stated that A1 promised to get them appointed as Home Guards and demanded Rs. 1,30,000/- each. LW19 also examined LW7/S. Ganga Rama Krishna, LW8/P. Naga Babu and LW9/Mohd Jameel and recorded their statements. LW9/Mohd Jameel produced CD containing the interview of the victim which was telecasted on HMTV. After completion of investigation LW19/E. Chandra Shekar Goud filed charge sheet.

3.Cognizance of the case was taken against A1 to A3 for the offence punishable under section 3, 4, 5, 6 of the Immoral Traffic Prevention Act, Sec.

354, 344, 509, 323, 420, 340, 323 and 506 of IPC and registered it as PRC 08/2013 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad.

4.On appearance of A1 to A3, copies of the case documents are furnished to them as contemplated under section 207 Cr.P.C before the trial court. Since the offences under section 3, 4, 5, 6 of the Immoral Traffic Prevention Act, Sec. 354, 344, 509, 323, 420, 340, 323, 506 of IPC is exclusively triable by the court of

Sessions, the learned Magistrate has committed the case to the Hon’ble

Metropolitan Sessions Judge, Hyderabad, vide his orders dated 16-04-2013 by

V AMSJ

Fair Judgment in SC.No.519/20137 following the due procedure as contemplated under section 209 Cr.P.C.

5.A1 to A3 were examined under section 228 Cr.P.C for the offence under section 3, 4, 5, 6 of the Immoral Traffic Prevention Act, Sec. 354, 344, 509, 323, 420, 340, 323 and 506 of IPC. They pleaded not guilty and claimed to be tried.

6.After the closure of prosecution evidence, A1 and A3 were examined under section 313 Cr.P.C by explaining the contents of incriminating evidence adduced against them by the prosecution witnesses, for which they denied the same and reported no defence evidence on their behalf. (NBW is pending against A2).

7. Heard arguments on both sides. Learned counsel for defence argued that the prosecution failed to establish the offence under section PITA Act. In order to establish the case of the prosecution, LW1/Kum. Marepalli Laxmi was not examined. Only circumstantial witness were examined. But she did not support the case of the prosecution.

8.To establish the offence under section 354 IPC the prosecution did not examine LW1/Marepalli Laxmi. To establish the offence Under section 354, 323, 344, IPC. Further when the prosecution failed to examined LW1/Marepalli Laxmi, offence under section 509 is also not proved. So far as the offence under section 420 is concerned the said LW1/Marepally Lakshmi was not examined. Hence the essential ingredients under section 420 IPC was not established and also failed to establish that the said LW1/Marepally Lakshmi that she was criminally intimidated by A1 to A3. She is material witness and moreover she is defacto complainant. Hence the evidence of defacto complaint is very much essential to establish the offence under above section of law. The other witnesses who were examined by the prosecution were not supported the case of the prosecution,.

V AMSJ

Fair Judgment in SC.No.519/20138

They are all circumstantial witnesses. No offence is made out against A1 that she induced PW4, PW5 and PW6 to appoint him as home guard. Panch witness PW7, has not at all supported to the case of the prosecution. There is no legally acceptable offence to establish the offence under section. Therefore benefit of doubt shall be given to A1 and A3. The prosecution miserably failed to establish the guilt of the accused beyond all reasonable doubt. On the other hand the learned Public Prosecutor argued to dispose the case on merits.

9.In order to establish the offence of A1 and A3, the prosecution examined

PW1 to PW9, exhibits Ex. P1 to Ex.P14 and MO1 to MO13 were marked.

10.Now the point for determination is:

i) Whether the accused on 29-02-2012 running brothel house at H.No. 8-2-268/K/20, 2 nd floor, Navodaya Colony, Road No. 2, Banjara Hills, Hyderabad by the organizers by engaging women sex ie Marpalli Laxmi workers and sexually exploiting them with the customers and there by committed an offence punishable under section 3 of PITA Act?

ii) Whether the accused running a brothel on the same day, time and place mentioned in the first count knowingly living on the earnings of prostitution illegal money and there by committed an offence punishable under section 4 of PITA Act ?

iii) Whether the accused on the same day, time and place mentioned in the first count procures women sex worker induces and sexually for the purpose of prostitution and earning money illegally and there by committed an offence punishable under section 5 of PITA Act ?

iv) Whether the accused on the same day, time and place mentioned in the first count procures women sex worker without her consent with intent that she may have sexual intercourse with a person who is not the spouse of Marepally Laxmi and there by committed an offence punishable under section 6 of PITA Act ?

v) Whether the accused persons on the same day, time and place mentioned in the first count used criminal force to Marepally Laxmi by touching her body and outraged her modesty and there by committed an offence punishable under section 354 of IPC ?

V AMSJ

Fair Judgment in SC.No.519/20139 vi) Whether the accused on the same day, time and place mentioned in the first count voluntarily caused hurt to Marepally Laxmi and there by committed an offence punishable under section 323 of IPC ?

Vii)Whether the accused on the same day, time and place mentioned in the first count wrongfully confined Marepally Laxmi for 10 days or more and there by committed an offence punishable under section 344 of IPC?

Viii) Whether the accused on the same day, time and place mentioned in the first count intending to insult the modesty of Marepally Laxmi abused her in filthy language, intending that the same shall be heard or seen by her and there by committed an offence punishable under section 509 of IPC?

ix)Whether the accused on the same day, time and place mentioned in the first count cheated Marepally Laxmi by dishonestly inducing her to provide job in Hyderabad and asked her to do prostitution and there by committed an offence punishable under section 420 of IPC?

x)Whether the accused on the same day, time and place mentioned in the first count committed criminal intimidation on Marepallyt Laxmi by threatening her with dire consequences and there by committed an offence punishable under section 506 of IPC?

11.The Learned counsel for defence argued that the Investigating Officer did not follow the mandatory provisions under section 15(2) of Immoral Trafficking act which says as follows:

Before making a search under sub-section (1), the special police officer or

the trafficking police officer, as the case may be shall call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search and may issue an order in writing to them or any of them so to do.

There shall be for each area to be specified by the Statement Government in this behalf a special police officer appointed by or on behalf of the Government for dealing with offences under this Act in that area.

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Fair Judgment in SC.No.519/201310

For efficient discharge of his functions in relation to offences under this Act-

(a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers whenever practicable) as the State Government may think fit; and

(b) the State Government may associate with the special police officer a non- official advisory body consisting of not more than five leading social welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act.

Section 13 Special Police Officer and Advisory body are mandatory which was held by The Hon'ble Apex Court in Shankare Gowda alias Shankara V State by Madanayakanahalli Police Station, Bengaluru and another 2016 (0) SCJOnline (Kar) 144.

Only special officers can investigate- the Special police officer and his assistant police officers are the only persons competent to investigate offences under the

Act and the police officers not specially appointed as special police cannot investigate the offences under the Act even though they are cognizable offences.

Delhi Administration vs. Ram Singh, AIR 1962 SC 63 = 1962 SCR 694.

12.As per the case of the prosecution A1 and A3 running a brothel house at

Banjara Hills by procuring female sex workers from various parts of the state and other states and living on the earning of the prostitution. A1 and A2 lured the complainant to come to Hyderabad promising good employment and after her arrival, they forced her to participate in sexual intercourse with male persons, but she refused, then they beat her, abused her in filthy language and threatened her with dire consequences and wrongfully confined her in the house.

A2 outraged her modesty by touching her body and pulling her shirt. A3 was assisting A1 in a clandestine activities.

V AMSJ

Fair Judgment in SC.No.519/201311

13.In order to establish the offence under section 3, 4, 5, 6 of PITA act the prosecution did not examine the victim woman ie., defacto complainant

LW1/Marepalli Laxmi, whether she was forced to participate in sexual intercourse with male persons. There the offence under section 3, 4, 5, 6 of Act. Moreover the police officer who conducted raid conducted investigation did not follow the mandatory provisions which are mentioned in IPT Act.

So far as the offence under section 354 IPC is concerned - whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years and shall also be liable to fine.

The ingredients under section 323 of IPC is concerned- whoever, except in the case provided for by section 334, voluntarily causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

The ingredients under section 344 of IPC is concerned- whoever wrongfully confines any person for ten days or more, shall be punished with imprisonment of either description for a term which may extend to three years an shall also be liable to fine.

The ingredients under section 509 of IPC is concerned – whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.

V AMSJ

Fair Judgment in SC.No.519/201312

The ingredients under section 420 of IPC is concerned- whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a value security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

14.There is no evidence on record to show that LW1/Marepalli Laxmi was detained for 10 days by A1 to A3 and threatened her with dire consequence when she had not accepted to have sexual intercourse with male persons. There is no legal acceptable evidence to establish the offence under section 354 and 509 IPC.

15.So far as the offence under 420 IPC, A1 received some of the persons dishonestly for appointment of jobs and they were examined as PW4, PW5 and

PW6, not elicited anything against the accused so as to bring home the guilt under section 420 IPC.

16.PW1 turned hostile and not supported the case of prosecution and he denied 161 statement. PW2 who is the panch witnesses did not support the case of the prosecution in whose presence the digital camera is seized by the police.

PW3 is also another panch witness, but he did not identify the accused .

17.The prosecution alleges that the PW3 acted as panch witness in whose presence Ex.P2 and Ex.P3 was drafted. MO1 lap top; MO2 memory chips 7 in number; MO3 bond papers; MO4 Promissory note; MO5 Application form; MO6

Blank application; MO7 cell phone; MO8 is Sony camera; MO9 condoms; MO10

V AMSJ

Fair Judgment in SC.No.519/201313 pen camera; MO11 three pan cards; MO12 Reliance cell phone; MO13 90 No. of

CDs. But the said seizure was not proved by him as per his evidence since the items were seized by police not in the scene but they were kept in the police station. Panchanama and seizure panchanama was drafted at Police Station.

Therefore his evidence cannot be relied on to establish the offence under section 420 IPC. So far as the offence under section 506 IPC, LW1/Marepalli Laxmi was not examined to know whether all the accused threatened her with dire consequences and there by committed an offence under section 506 IPC. The evidence of

Investigation Officer cannot be relied on since they have not followed the mandatory provisions of section 13 to investigate the section 3, 4,5, 6 IPT Act.

18. PW7/M. Praveen Kumar has deposed that on 31-03-2012 the CI of Banjara

Hills PS called him to police station between 5-6.30 P.M One Shankar was also called along with him to police station. Accordingly, he went to police station. By that time he was present in his house. There he saw one woman at police station by name Rajeshwari @ Tara Chowdary. The police brought Tara Chowdary to Navodaya Colony situated at Road No.2, Banjara Hills pertaining to brothel case. She confessed before him that she is running business by employing woman for the purpose of prostitution and used to pay Rs.1000/- for each woman.

She do not know how many women were employed and she further confessed that she was in search of opportunities in Cine Field and she could not get opportunities in Cine Field as such she opted this business and further she confessed that she used to blackmail the politicians whoever comes to her by keeping their photos. One phone was seized by police. He signed on the report typed by police. Ex.P.7 is the signature on panchanama and MO.7 is cell phone.

Further PW7 admitted that he did not taken assistance of any local persons,

NGO's or any social workers of the locality to establish offence under section 3, 4,

V AMSJ

Fair Judgment in SC.No.519/201314 5 of the Immoral Traffic Prevention Act. He failed to follow the mandatory provisions of section 13.

19.PW8/M. Sudharshan, the then Inspector of Police has deposed that LW7/S.

Ganga Rama Krishna issued FIR and he received the same and conducted the investigation. During the course of investigation he examined LW1/Marrepalli

Laxmi and recorded 161 Cr.P.C statement. On the same day he arrested the accused and admitted the offence in the presence of mediators PW7/Masara

Praveen Kumar and LW11/Gotam Shankar and recorded the confession statement and seized one cell phone. Further he proceeded to the house no. 8-2-268-K/20 second floor, Navodaya colony, Road No. 2 Banjara Hills there he taken the custody of A2 who admitted the offence and drafted the seizure panchanama.

PW8 has further deposed that at the instance of A1 and A2 he seized total 10 items ie., Micromax cell phone, Nokia cell phone, Samsung cell phone, Nokia 2690 cell phone and three nos. of pan cards in the name of Durga Prasad, P.N.

Prasad and Ramu, One Kamasutra Candom and one photograph of accused with

Dr. Rajeshekar Reddy Ex-CM. Two set of Home guard appliance and one pen type video recorder and he also examined the Chenchu Ramaiah and Md Amjad Ali.

Then he produced the accused before Hon’ble court for judicial custody.

PW8 has further deposed that on 08-04-2012 accused was produced to police custody. On 10-04-2012 on further confession in the presence of panchas

PW3 and LW13/M.S. Raju and seized total 11 items they are one laptop, cell phone, memory cards 07 in number, one receipt dated 30-08-2011 executed by

Alluri Kasi Raju in favour of accused and hand loan of Rs. 2,00,000/- and another receipt dated 27-02-2012 bond paper of Hemakatha and Suresh in favour of A1

V AMSJ

Fair Judgment in SC.No.519/201315 receipt 20,000/-. Cheque bearing no. 756869 ING Vyasya Bank in favour of A1 for

Rs. 50,000/- executed by S.V. Veerabhadra.

PW8 has further deposed that another bond paper of Rs. 50,000/- in favour of A1 dated 27-12-2011 by Varalaxmi. Empty application certificate clearance certificate form 26, form 80 signed by Veerabhadra. 08 No. of marriage photos of

SA1 with accused Rajendra Prasad. CD’s 90 No. containing voice of political

leader, police officers and also problems of her village and one CD containing TV news of one person Chinni Krishna Vivadham, application form for enrollment of 03 numbers affixing the photograph G. Rama Krishna, Nagababu. Belamkonda

Eshwar Rao with all the addresses.

PW8 has further deposed that 10 SIM cards of different mobiles- they are

Tata Indicom 03, Tata Docomo 01, Idea Sim 02, Airtel 02, Uninor 01, Voda phone 01 SIM. On 26-04-2012, A3 Shaik Haneef arrested at Indira Nagar and he voluntarily admitted the offence in the presence of A1 and A2 and in the presence of PW2 and LW15/ confession cum seizure panchanama drafted and seized Sony

Digital Camera (Cyber Shot 12.01 MP). Later he produced A3 before court for remand and he filed requisition to court for recording 164 Cr.P.C statement of A1.

Later he handed over the CD file to LW19/E. Chandra Shekar Goud for further investigation. MO8 is Sony camera. MO9 condoms. Ex.P8 is three set of Home guard application. MO10 pen camera. MO11 three pan cards. MO12 Reliance cell phone. MO13 90 No. of CDs. Ex.P9 is blank application. Ex.P10 is the cheque for

Rs. 50,000/-. Ex.P11 is the empty cheque with promissory note of Rs. 2,00,000/-.

Ex.P12 is cheque for Rs. 20,000/-. Ex.P13 bond.

20.PW9/E. Chandrasekhar Rao the then Inspector of Police has deposed that he had taken over the CD file from PW8 and verified the investigation done by him, found on correct lines. During his investigation on 09-06-2012 he secured the

V AMSJ

Fair Judgment in SC.No.519/201316 presence of PW4 and LW5/K. Nageswara Rao and recorded their statements. On 27-10-2012 he secured the presence of LW9/Mohd Jameel and recorded his statement. He has further deposed that while recording the statement he collected the CD from LW9/ Mohd Jameel containing the interview of the victim which was telecasted in HMTV. On 08-11-2012 he have sent the seized material which was seized by his predecessor and also CD collected by him deposited in the Hon’ble Court. After completion of investigation he filed charge sheet. During cross examination he stated that he do not know that A1 gave complaint against

ACP before the women commission and stated that he have not conducted investigation properly.

21.I perused the memo of written arguments of defence counsel and on perusal of evidence on record PW1 and PW2 are the victims not established that they were trafficked by the accused persons for the purpose of exploitation or recruited or transported, harbours, transfers or receives a persons or persons.

22. Further the evidence of PW1 and PW2 not able to establish the offence under section 3, 4, 5 of Immoral Traffic Prevention Act. The complainant and the

Investigating Officer are one and the same. Therefore the trial is vitiated since the complainant and the Investigating Officer should not be one and the same person. The panch witness failed to establish the seizure panchanama which was not drafted at scene of offence. Seizure was not proved. Evidence of PW6 is not trust worthy of credence. As per the evidence of PW5 when they found no persons were in obscene position. The PW5 categorically stated that four female persons were taken into custody and five gents were taken into custody. Whereas PW6 panch witness stated that they found two female and five male members were found at scene of offence. Now how many victims are there is under suspicion

V AMSJ

Fair Judgment in SC.No.519/201317 since they were not particularly stated about how many males and females caught hold at the scene of offence.

23.At the outset on perusal of oral and documentary evidence on record, PW8 apprehended the accused. PW7 and PW8 seized the material in this case. There is no consistency in the evidence of prosecution to establish the offence under section Further they failed to follow the mandatory provisions of 3, 4, 5, 6 of

Immoral Traffic (Prevention) Act 1959. The evidence of the witnesses on record is not trust worthy of credence. Hence benefit of doubt shall be rightly given to the accused since prosecution witnesses failed to establish the guilt of the accused under section 354, 344, 509, 323, 420 and 506 of IPC and prosecution witness miserably failed to establish the guilt of the accused beyond all reasonable doubt.

Hence accused are entitled for benefit of doubt

24.In the result, A1 and A3 are found not guilty for the offences under section 3, 4, 5, 6 of the Immoral Traffic Prevention Act and accordingly they are acquitted under section 235(1) Cr.P.C for the said offence. A1 and A3 are found not guilty for the offences under section 354, 344, 509, 323, 420 and 506 of IPC and accordingly they are acquitted under section 235(1) Cr.P.C for the said offence. The bail bonds of the A1 and A3 shall stand valid on record for a period of six months as per Sec 437-A Cr.P.C.

The unmarked case property if any shall be destroyed after expiry of appeal time. MO1, MO7, MO8 and MO12 shall be confiscated to the state after expiry of appeal time. MO11 three pan cards shall be returned to its owner after expiry of appeal time. MO2, MO5, MO6, MO9, MO10, MO13 shall be destroyed after expiry of appeal time and MO3 and MO4 shall be returned to its owner on proper identification and acknowledgment.

V AMSJ

Fair Judgment in SC.No.519/201318

Directly typed to my dictation by the Stenographer of this court, corrected, on this the 29 th day of APRIL, 2022.

V ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

PW1: P. Chechuramaiah

PW2: Shaik Shareef

PW3: K. Raji Reddy

PW4: E. Eshwar Rao

PW5: Gangaram Krishan

PW6: Nagababu

PW7: M. Praveen Kumar

PW8: M. Sudharshan

PW9: E. Chandrasekhar Rao

FOR DEFENCE: NIL

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1: 161 Statement of PW1 Ex.P.2: Panchanama Ex.P.3: Seizure report Ex.P.4: 161 statement of PW4 Ex.P.5: 161 statement of PW5 Ex.P.6: 161 statement of PW6 Ex.P.7: Signature on panchanama Ex.P.8: 3 set of home guard application Ex.P.9: Blank application Ex.P10: Cheque for Rs. 50,000/- Ex.P11: Empty cheque with promissory note for Rs. 2,00,000/- Ex.P12: Cheque for Rs. 20,000/- Ex.P13: Bond Ex.P14: FIR

V AMSJ

Fair Judgment in SC.No.519/201319

FOR DEFENCE:

NIL

MATERIAL OBJECTS MARKED

MO1 lap top

MO2 memory chips 7 in number

MO3 bond papers

MO4 Promissory note

MO5 Application form

MO6 Blank application

MO7 cell phone

MO8 is Sony camera

MO9 condoms

MO10 pen camera

MO11 three pan cards

MO12 Reliance cell phone

MO13 90 No. of CDs.

V ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD

COPY TO:

The III Addl. Chief Metropolitan Magistrate, Hyderabad. The counsel

V AMSJ

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SC.178 of 2016

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES UNDER S.Cs

& S.Ts (POA) ACT-CUM-VI ADDL. METROPOLITAN SESSIONS JUDGE:

SECUNDERABAD

Present: Smt. M. Kanaka Durga, V Addl. Metropolitan Sessions Judge, Hyderabad, FAC Spl. Judge for trial of offences under SCs & STs(POA) Act cum VI Addl. Metropolitan Sessions Judge Secunderabad

FRIDAY, THE TWENTY NINTH DAY OF APRIL

TWO THOUSAND AND TWENTY TWO

SESSIONS CASE No.178 of 2016

(PRC.No.53 of 2015 on the file of Special Judicial First Class Magistrate for Excise Cases, Hyderabad)

Committed by : Smt.A.Sreedevi Spl. Judicial First Class Magistrate for Excise Cases, Hyderabad.

Crime No.& Police Station : Cr.No.193 of 2014 Police Station Begumpet

Name of the Complainant: Inspector of Police, Begumpet PS.

Name and Description of the accused : * Al Maidabolu Kaladhar @Shiva S/o. M. Narsimha Rao, age, 42 yrs, Dec. Organizer of Brothel house R/o. H.No. 1- 11-200, Block C, Majestic Mansion, Mansions Court, near Shyamlal Building, Begumpet, Secunderabad, N/o. Ranga Nayak pet, Nellore Dist *(A1 reported died and case against him was abated)

A2. Smt. Suri Kumari W/o. Satti Babu, age. 40 yrs, Occ. Pimp R/o. H.No. 1-11- 200, Block C, Majestic Mansion, Manions Court,nearShyamlalBuilding, Begumpet,SecunderabadN/o. Lingamparthy, Kakinada

A-3 Shaik Vali Basha @ Sk. Thazuddin @ Basha S/o. late. Shaik Ahmed, age.34 yrs, :: 2 of 17::

SC.178 of 2016

Occ. Driver /Pump R/o. H.No. 1-11-200, Block C, Majestic Mension, Manions Court,nearShyamlalBuilding. Begumpet,SecunderabadN/o. Eleswaram, Patthi padu mandal, Rajahmundry. (A1 toA3 Arrested on 20- 05-2014 and remanded to Judicial Custody.

Prosecution conducted by :Sri R.Upender, Addl. Public Prosecutor

Accused defended by : Sri J.Manish Rao, counsel

Offences under Secs. : Secs.370(A) (2)IPC & 3 &, 4 of the Immoral Traffic (Prevention) Act

Plea of Accused : Not guilty

Finding of the Court : Not guilty of the offences punishable under Secs.370, 370(A) IPC and Secs.3, 4 and 5 of the Immoral Traffic (Prevention) Act

Result: Accused No.2 and 3 are found not guilty for the offences under Secs.370(A) (2) IPC and Secs.3 and 4 of Immoral Traffic (Prevention) Act and they are acquitted under Sec.235(1) Cr.P.C. The bail bonds of accused shall continue for a period of six months. M0s.1 to 3 are three mobile phones (Nokia, Celkon and Blu) shall be be sold in public auction and the sale proceeds shall be confiscated to the State. MO4 are three unused condoms (Skore) shall be destroyed after lapse of appeal time. MO.5 FDR for Rs.2,500/- shall be confiscated to the State after lapse of appeal time.

J U D G M E N T

1) The Inspector of Police, Police Station Ramgopalpet filed charge sheet saying that A1 to A3 committed commercial sex exploitation under Secs.3 and 4 of the Immoral Traffic (Prevention) Act.

2) According to the case of prosecution, on 20.05-2014 at 00.20 hours, Sri. Harish Kaushik, Inspector of Police, Commissioner's

Task Force, North Zone team, Secunderabad lodged a report wherein he stated that on 19-05-2014 at 19.30 hours while he :: 3 of 17::

SC.178 of 2016

was in Task Force office, Secunderabad, received credible information that, one person by name Maidabolu Kaladhar @Shiva, aged about 42 years is organizing prostitution in the ground floor of H.No. 1-11-200, Block C, Majestic Mansion,

Mansion Court, near Shyamlal Building, Begumpet,

Secunderabad. Believing the information received to be true and authentic, immediately at 1935 hours he appraised the same to

Addl. Dy. Commissioner of Police, Task Force, Hyderabad, secured the presence of two panchas namely 1). Sri. Roshan Lal Kumar 2)Sri Prakash Jadav, explained them about the information received, the raid to be conducted and requested them to act as mediators for which they consented. At 1945 hours, he drafted search. proceedings in their presence, deputed PC 9661 Sri.

S.A.Vasi as decoy and after receiving signal from him, he conducted raid on the above said premises with assistance of HC 3116. V.Sudhakar, PC 6164 Mohsin Ahmed, PC 4769 Md.Baba,

WPC 8724 K.Anitha of W.P.S Begumpet at H.No. 1-11-200, Block-

C, Majestic Mansion, Mansions Court, near Shyamlal Building,

Begumpet, Secunderabad. On knocking the door one male opened the door. On enquiry he revealed his name as Maidabolu

Kaladhar @Shiva and tenant of the portion. Then he disclosed their identity, purpose of visit and served a copy of search proceedings on him and obtained acknowledgement. On entering the house, they found one female and one male in the hall. On enquiry, the female revealed her name as A2 Smt. Suri

Kumari W/o. Satti Babu, age. 40 years, who is pimp and male person revealed his name as A3 Shaik Thazuddin@@ Vali Basha :: 4 of 17::

SC.178 of 2016

S/o. late. Shaik Ahmed, age.34 years who is also pimp. On observation, it is noticed that, it is a four stored building situated in Ground floor, Block C, Majestic Mansion, Mansions Court, near

Shyamlal Building, Begumpet, Secunderabad. The main entrance of the house is in East direction. The main hall direction towards

East, having one Bed room, kitchen room, bathroom and another hall. He found the Decoy and one sex worker in a bedroom, revealed her name as Nisha W/o. Shaik Wahid, age, 26 years,

Occ.House wife, N/o. Ahamadabad, Gujarath State. On his enquiry

A1 admitted his guilt of organizing brothel house with the assistance of A2 and A3. Then at 2040 hours in the presence of panchas, he recorded confessional statement cum seizure panchanama of A1 and seized Rs. 1000/- cell phone of Celkon make with sim no. 9000090013 and (07) unused condoms.

Further he confessed that, he running the brothel house with the assistance of A2 and A3, who are supplying customers on commission basis and he is procuring the sex workers from various places and other state, and other localities on contract basis and earning easy profits. During confession, the investigating officer seized net cash of Rs. 1,000/- and one cell phone from the possession of A2 and also seized Rs. 500/- and one cell phone from the possession of A3. The victim Nisha W/o.

Shaik Wahid, age. 26 years, Occ. House wife N/o. Ahamadabad,

Gujarath State is rescued. He produced A1 to A3 along with victim Nisha W/o. Shaik Wahid, age. 26 years, Occ. House wife N/ o. Ahamadabad, Gujarat State and seized property of Rs. 2500/-, three cell phones, and 07 condoms for taking necessary action.

:: 5 of 17::

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Basing on the report, the investigating officer registered a case in

Cr.No.193/2014 under Secs.3 and 4 of the Immoral Traffic (Prevention) Act and investigated into. During the court of investigation, the investigating officer examined and recorded the statements of LWs 1 to 7 and they corroborated with the facts of

FIR. LW-16 also recorded the statement of LW-8/ Victim, in which she stated that about 3 days back, she came to the said house through one of her known person, on contract basis for 10 days

A-1 promised to pay Rs. 30,000/- for 10 days and paid advance of Rs. 4000/- to LW-8. The investigating officer interrogated the accused A-1 to 3 and they admitted their guilt. The investigating officer examined LWs 9 to 12 and recorded their statements, the accused A-1 to A-3 were produced before Court for Judicial custody. The victim was sent was sent to rescue home through the court. A1 died and case against A1 was abated during crime stage. After completion of investigation, he filed charge sheet.

3) Cognizance of the case was taken against accused No.2 and 3 for the offences punishable under section Secs.370, 370 (A)(2)

IPC and Secs.3 and 4 of the Immoral Traffic (Prevention) Act and registered it as PRC No.53 of 2015 on the file of the Spl.

Judicial First Class Magistrate for Excise Cases, Hyderabad.

4)On appearance of accused No.2 and 3, copies of the case documents are furnished to them as contemplated under section 207

Cr.P.C before the trial court. Since the offences under sections 370, 370(A) (2) IPC are exclusively triable by the court of Sessions, the learned Magistrate has committed the case to the Hon’ble Metropolitan

Sessions Judge, Hyderabad, vide his orders dated 8.2.2016 by following

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the due procedure as contemplated under section 209 Cr.P.C. and thereafter made over the case to this court for trial.

5) Accused No.2 and were examined under section 228 Cr.P.C and charges under Sec. 370(A)(2) IPC and Secs.3, 4 and 5 of the Immoral

Traffic (Prevention) Act were framed, read over and explained to them.

They pleaded not guilty and claimed to be tried.

6)On behalf of prosecution, PWs.1 to 6 and Exs.P1 to P4 and Mos.1 to 5 were marked. After closure of prosecution evidence, A2 and A3 were examined under Sec.313 Cr.P.C. They denied incriminating evidence adduced by prosecution. They reported no defence evidence.

7)The counsel for defence argued that the essential ingredients under Secs.13 and 15 of the Immoral Traffic (Prevention) Act are not complied by the investigating officer. The mandatory provisions are not followed by the investigating officer at the time of investigating the case. The entire evidence on record shows that witnesses are motivated by police since they were not examined in chief and cross examined on the same day and they identified accused by PW.4 and

PW.5. Their identification is doubtful. No rental agreement filed to show that accused occupied the flat of PW.3 by name, S.Madhusudhan Rao, who is flat owner where the alleged incident was occurred. The complainant did not obtain prior permission from his higher ups to conduct raid in the premises where alleged offence was took place.

During cross examination, he categorically admitted the same and no local women or persons were taken as panch witnesses as envisaged under the Act. The identification of the accused by PW.4, who is care- taker of flat, Majestic Mansion, Shyamlal Building, Begumpet where alleged offence was occurred is doubtful since he was examined in chief on 16th April 2021 whereas further chief examination conducted on 31.8.2021. Therefore, he was definitely tutored and his evidence cannot be taken into consideration. LW.8 Nisha victim girl was not examined by the prosecution to know about the offence whether she was employed for the purpose of prostitution by A1 to A3.

8)As per Sections 3 and 4 of the Immoral Traffic (Prevention) Act, the essential ingredients are

Sec.3 - Punishment for keeping a brothel or allowing premises to be :: 7 of 17::

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used as a brothel.— (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than two years and which may extend to three years and also with fine which may extend to ten thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which shall not be less than three years and which may extend to seven years and shall also be liable to fine which may extend to two lakh rupees (2) a any person who,— (a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or

(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine. (2-A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if,— (a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or (b) a copy of the list of all things found during the search referred to in clause (a) is given to such person. (3) Notwithstanding any thing contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (d) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.

Sec.4. - Punishment for living on the earnings of prostitution .—(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both, and where such earnings relate to the prostitution of a child, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years. (2) Where any person over :: 8 of 17::

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the age of eighteen years is proved,— (a) to be living with,or to be habitually in the company of, a prostitute; or (b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding abetting or compelling her prostitution; or (c)to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1).

9)The prosecution failed to establish the guilt of the accused beyond all reasonable doubt. Hence accused entitled for benefit of doubt.

10)On the other hand, learned Addl. Public Prosecutor argued that

PW5 panch witness categorically establish the offence by way of identifying the persons for bringing home the guilt of the accused. His evidence is corroborated with the evidence of PW.6, who is investigating officer. Hence accused are liable for conviction.

11)Before making a search under sub-section (1), the special police officer or the trafficking police officer, as the case may be shall call upon two or morerespectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search and may issue an order in writing to them or any of them so to do. In order to made out an offence under section 370 IPC, there must be exploitation, recruits, transports, harbours, transfers or receives a person or persons by using threats, or using force or abduction, or by practicing fraud, or deception, or abuse of power, or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured transferred or received, commits the offence of trafficking.

Section 370 (A) (2). Exploitation of a trafficked person- whoever, knowingly or having reason to believe that a minor has been trafficked, engages such person for sexual exploitation in any manner.

There shall be for each area to be specified by the Statement :: 9 of 17::

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Government in this behalf a special police officer appointed by or on behalf of the Government for dealing with offences under this Act in that area.

For efficient discharge of his functions in relation to offences under this Act-

(a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers whenever practicable) as the State Government may think fit; and

(b) the State Government may associate with the special police officer a non-official advisory body consisting of not more than five leading social welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act.

Section 13 Special Police Officer and Advisory body are mandatory which was held by The Hon'ble Apex Court in Shankare Gowda alias

Shankara V State by Madanayakanahalli Police Station, Bengaluru and another 2016 (0) SCJOnline (Kar) 144.

Only special officers can investigate- the Special police officer and his assistant police officers are the only persons competent to investigate offences under the Act and the police officers not specially appointed as special police cannot investigate the offences under the

Act even though they are cognizable offences. Delhi Administration vs.

Ram Singh, AIR 1962 SC 63 = 1962 SCR 694.

12)On the other hand the learned PP argued that the evidence of

PWs.2 and 3/mediators corroborated with evidence of PW1. He categorically stated that A1 along with A2 and A3 carrying business in :: 10 of 17::

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the alleged flat and he identified A1 to A3. Therefore the evidence of

PWs.1 and 6 is sufficient to establish the offence under section 370, 370 (A)(2) IPC and Secs.3 and 4 of Immoral Trafficking (Prevention)

Act. Hence they are liable for punishment. In the instant case neither

PW1 or PW6/ Investigation Officer not stated that PW1 was appointed as special officer under sec 13 of Immoral Trafficking (Prevention) Act.

He neither filed any order showing that PW1 was appointed as special officer for conducting raid near the alleged offences has been taken place under section 370 A (2)of IPC and Secs. 3 and 4 of Immoral

Trafficking (Prevention) Act, 1956.

13)Now the points for determination are:

1) Whether on 19.5.2014 at 1945 hours at ground floor of H.No.1- 11-200, Block-C, Majestic Mansion, Mansions Court, near

Shyamlal Building, Begumpet, Secunderabad, accused imported and exploited Nisha (victim) against her will and indulged in trafficking by inducing he and thereby committed offence punishable u/s.370(A) (2) of Indian Penal Code?

2) Whether on 19.5.2014 at 1945 hours at ground floor of H.No.1- 11-200, Block-C, Majestic Mansion, Mansions Court, near

Shyamlal Building, Begumpet, Secunderabad, accused allowed the said premises to be used as a brothel and thereby committed an offence punishable under Section 3 of Immoral Traffic (Prevention) Act, 1956; and

3) Whether on 19.5.2014 at 1945 hours at ground floor of H.No.1- 11-200, Block-C, Majestic Mansion, Mansions Court, near

Shyamlal Building, Begumpet, Secunderabad, accused lived on the earnings of prostitution of Nisha and thereby committed an offence punishable under Section 4 of Immoral Traffic (Prevention) Act, 1956; and

4) Whether prosecution established guilt of accused for the alleged offences beyond all reasonable doubt?

:: 11 of 17::

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POINT Nos.( i )to ( iv )

14)In order to substantiate the case of prosecution, the prosecution examined Pws.1 to 6 and Exs.P1 to P4 and Mos.1 to 5 were marked. In order to constitute an offence under Secs.3 and 4 of the Immoral Traffic (Prevention) Act, it is for the prosecution to establish that alleged Flat was taken on rent by A1 to A3 from its owner and run brothel business.

Further it is for the prosecution to establish that A1 to A3 are knowing fully aware that they are earning the amounts by employing LW.8 victim girl for the purpose of prostitution.

Now it is to see whether prosecution witnesses examined as 15)

Pws.1 to 6 establish the offence under Secs.370(A) (2) IPC.

16)PW.1 is Inspector of Police, who conducted raid on 7.4.2017 in the ground floor of H.No. 1-11-200, Block-C, Majestic Mansion, Shyamlal

Building, Begumpet, Secunderabad basing on the information given received by him. He took the assistance of his staff and conducted raid in the said house premises. There he found Rs.2,500/- cash, three cellphones and seven unused condoms. He conducted raid at 2040 hours on 7.4.2017. During cross examination, he admitted that he did not obtain any permission from the then Assistant Commissioner of

Police in writing to conduct raid, As per his evidence, he was not appointed by the State Government as Special Officer to conduct raid as envisaged under Sec.13 of the Immoral Traffic (Prevention) Act.

Mos.1 to 3 are three mobile phones , four unused condom packets,

MO.5 is FDR for Rs.2,500/-, Ex.P1 is search proceedings drafted by him in the presence of mediator and deputed PC.9661 to act as decoy.

Ex.P2 is confession cum seizure panchanama, Ex.P3 is report given by

PW.1. Nothing is elicited by this witness that he has followed :: 12 of 17::

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mandatory provision as envisaged under the Immoral Traffic (Prevention) Act.

17.PW.2 is police constable acted as a decoy. On the instructions of

PW.1, he went to premises and gave Rs.1,000/- to A1. He gave miss call to PW.1 soon after entering into premises offering amount to A1 to have sex with victim Nisha. PW.1 along with his other staff conducted raid and Ex.P1 search proceedings are prepared by PW.1 on which he signed. During cross examination, he admitted that there were no woman to act as panch witness. In this case, PW.1 did not collect any document to show that A2 and A3 are occupants of the alleged flat.

18.PW.3 is owner of flat and in the year 2014 he appointed one care- taker. On in the information given by his care-taker, he came to his premises and that it was used for the purpose of prostitution by A1 but he admitted that no rental agreement in writing with A1 was taken by him. Police did not collect any document from him to show that said flat belongs to him. He did not know A2 and A3 and whether they are related to A1 or not.

19.PW.4 Pramod Pali is care-taker of the flat stated that he had been in the Shyamlal Building for the past 22 years. PW.13 is owner of the flat where alleged offence took place. During chief examination, he stated that he cannot identify the tenant and at that time, two men and two women are occupant of his flat. Witness identified A2 Surya

Kumari but his cross examination was taken place after four months of chief examination and continuation of chief examination after four months of chief examination i.e. on 15th April 2021. He was examined in part chief for continuation, he was examined on 31.8.2021 and he identified all the persons who stood in the open court. During chief :: 13 of 17::

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examination, he stated that he cannot identify the person of the tenant of PW.3. Whereas after long gap, he again admitted that he can identify persons who were taken premises on rent. Therefore, his identification is doubtful since he is presumed to be motivated due to long gap of time in chief examination and further chief examination by the prosecution.

20.PW.5 is panch witness in whose presence police seized Rs.2,500/- cash (Rs.1000+1000+500) from three accused. He stated that police caught two men and two women as they are doing illegal work but he did not remember their names. He can identify them and police prepared panchanama and seized three mobile phones from each accused and condom packets from women and cash. He also examined in chief on 5th October 2021 and further chief examination was made on 2.11.2021 after a gap of one month. He identified accused and also mobile phone and he signed on Ex.P2 panchanama in the court. During cross examination he admitted that he acted as panch witness in many other cases but he denied that he is not a stock witness to the police.

On the date of offence, police were called him while he was going towards Paradise, but called him orally but not in writing. The evidence of PW.5 is doubtful. His identify cnnot be taken into consideration due to long lapse of time between chief examination, further chief examination and cross examination.

21.PW.6 investigating officer who received complaint from PW.1 On 20.5.2004 at 0020 hours. Ex.P3 is report and basing on that, he registered FIR as a case in Cr.No.193/2014. Ex.P4 is FIR. Ex.P1 and P2 are confession cum seizure panchanamas. MOs.1 to 5 are seized articles were hndedover by PW.1 along with A1 to A3 and victim sex :: 14 of 17::

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worker. Thus he conducted further investigation after examining witnesses LWs.9. to 12. After completion of investigation, he filed charge sheet. During cross examination, he admitted that PW.1 did not secure any woman as panch witness at the time of raid and he did not collect any document to show that PW.3 is owner or care-taker of the flat and he did not collect any document to show that accused never stayed as tenant etc. Only as per request of A1 only, PW.3 gave flat.

22.In the instant case, the victim was not examined by the prosecution. Her evidence is crucial to establish that she was exploited, recruits, transport, harboured, transferred or receives a person or persons by using threat or abduction or by practicing fraud or deception or by inducement including giving or receiving the payments or benefits in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received commits the offence of trafficking. Non-examination of the victim who was exploited sexually for the purpose of running commercial business is fatal to the case of prosecution.

23.At the outset, on perusal of entire evidence on record, the essential ingredients of Sec.3 of the Immoral Traffic (Prevention) Act not able to establish by prosecution witnesses. The evidence of panch witness is not trustworthy of credence as per Sec.15 of the Immoral

Traffic (Prevention) Act. PW.1 is not appointed by State Government as a Special Officer to conduct raid. He himself prepared search proceedings and conducted raid, but he has not taken any prior permission from his higher ups. Further he did not take any assistance of non-official advisory body consisting of more than five social welfare workers of that area (including women social welfare workers) :: 15 of 17::

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. The alleged offence was taken place at Majestic Mansion, Shyamlal

Building, Begumpet, Secunderabad. There is every possibility of securing woman social worker and it is practicable to PW.1 to secure woman social worker, but he did not secure them to conduct raid and examine victim. Further the investigating officer did not collect any information from the victim where she was employed for the purpose of prostitution by A1 to A3. Further they failed to establish that A1 to

A3 eking out their livelihood on the earnings of prosecution by employing LW.8. As per Sec.15 of the Act,

24.As per above section, PW.1 has not filed document to show that he was appointed as Special Officer to conduct raid under this Act. He categoricall admitted the same in his evidence.

25.The evidence of PWs.1 to 6 is not trustworthy of credence. They failed to establish the mandatory provision envisaged under the Act.

PW.1 has no competency to investigate the offence under the Act as they were specifically appointed as Special Officer under this Act even though they are cognizable offences.

26.In view of the above discussion, the prosecution miserably failed to establish the guilt of the accused beyond all reasonable doubt.

27. In the result, accused No.2 and 3 are found not guilty for the offences under Secs.370(A) (2) IPC and Secs.3 and 4 of Immoral Traffic (Prevention)

Act and they are acquitted under Sec.235(1) Cr.P.C. The bail bonds of accused shall continue for a period of six months. M0s.1 to 3 are three mobile phones (Nokia, Celkon and Blu) shall be be sold in public auction and the sale proceeds shall be confiscated to the State. MO4 are three unused condoms (Skore) shall be destroyed after lapse of appeal time. MO.5 FDR for Rs.2,500/- shall be confiscated to the State :: 16 of 17::

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after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected ad pronounced by me in the open Court on this the 29th day of April 2022.

SPL JUDGE FOR THE TRIAL OF OFFENCES

UNDER S.Cs & S.Ts (POA) ACT-CUM –

VI ADDL. METROPOLITAN SESSIONS JUDGE

SECUNDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION

PW.1 Sri Harish Kaushik, Inspector of Police, Commissioner’s Task Force, North Zone Team, Hyderabad, complainant

PW.2 Sri S.A.Vai, PC.9661, North Zone Task Force Team, decoy witness

PW.3 Sri S.Madhusudhan Rao, owner of flat witness

PW.4 Pramod Pali, witness

PW.5 Sri Prakash Jadav, panch witness

PW.6 Sri G.Baswa Reddy, Inspector of Police, PS Begumpet, investigating officer

FOR DEFENCE: NIL

EXHIBITS MARKED

FOR PROSECUTION: Ex.P1 Search proceedings

Ex.P2 Confession cum seizure panchanama

Ex.P3 Report

Ex.P4 First Information Report

FOR DEFENCE: NIL

EXHIBITS MARKED

FOR PROSECUTION:

MO.1 Nokia mobile phone MO.2 Celkon mobile phone :: 17 of 17::

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MO.3 Blumobile phone MO.4 Three unused condoms (Skore) MO.5 FDR for Rs.2,500/-

FOR DEFENCE: NIL

SPL JUDGE FOR THE TRIAL OF OFFENCES

UNDER S.Cs & S.Ts (POA) ACT-CUM –

VI ADDL. METROPOLITAN SESSIONS JUDGE

SECUNDERABAD.

Fair Judgment in SC.No. 42/20171

IN THE COURT OF THE V ADDITIONAL METROPOLITAN SESSIONS JUDGE:

AT HYDERABAD

Present: Smt. M. Kanaka Durga V Addl. Metropolitan Sessions Judge, (Mahila Court), Hyderabad.

DATED THIS THE 28th DAY OF APRIL, 2022

SESSIONS CASE NO. 42 OF 2017

(in PRC No. 01 of 2012)

Committed by : Sri.G. Rajagopal II Addl Chief Metropolitan Magistrate, Hyderabad. Crime Number and Police Station: Crime No. 375 of 2010, Abids PS. Name and description of the: A1) Pulijala Arvind Kumar S/o P. Arjun Accused Kumar, Age: 36 years, R/o H.No. 5-4-609, Kattalamandi, Abids, Hyderabad.

A2) W. Sujitha W/o P. Arjun Kumar, Age: 61 years, R/o. H.No. 5-4-609, Kattalamandi, Abids, Hyderabad.

A3) P. Arjun Kumar, S/o P. Gopal Rao, Age: 65 years, OCC: Retd. Bank Employee,R/o.H.No.5-4-609, Kattalamandi, Nampaly Station Road, Hyderabad.

The case against A1 is split up vide PRC No. 16/16. The present case is against A2 and A3 only.

Name and description of the: The State represented by the Asst. Commissioner of Police, Abids Division, Hyderabad. Prosecution conducted by : Addl. Public Prosecutor Accused defended by: M/s L.N. Bhadriraju and associates, Counsel for accused. Offence charged: U/sec. 304-B r/w 34 of IPC. Plea of the accused: Pleaded Not guilty. Finding of the Court: Found not guilty Result : In the result, accused A2 and A3 are found not guilty for the offence U/s 304- B of IPC, accordingly they are acquitted U/s. 235 (1) Cr.P.C for the said offence. The bail bonds of accused A2 and A3 shall stand valid on record for a period of six months as per Sec. 437- Cr.P.C. MO1 and MO2 shall be returned to its owner

V AMSJ

Fair Judgment in SC.No. 42/20172 after expiry of appeal time.

:: JUDGMENT ::

1.The Assistant Commissioner of Police, Abids Division, Hyderabad has filed this charge sheet against the accused A2 and A3 for the offence U/s. 304-B of IPC in Cr.No. 375/2010.

2.The brief facts of the case in nutshell are that-

On 29-11-2010 at 21.15 hours, received complaint from Smt. W. Sujitha stating that, her daughter-in-law Smt. Boini Sharvani came to their house situated at house bearing no. 5-4-609, Kattalamandi, Abids, Hyderabad on 26-11-2010 from her parents house. The complainant and her husband have planned to visit

Tirumala on 04-12-2010 on which Shravani expressed her desire to accompany them. When they informed that they planned long back to visit the temple and it is difficult to get train reservation and asker her to go to her parent’s house. She refused to go to her parents house and informed them that she is going to

Hanuman Temple and returned back within half an hour. She left the house at 1730 hours. But she did not return to house nor she responding to their calls. Her husband who is in London spoke to her and assured that he will arrange for

Tirumala visit. Later she was not responding to her parent’s calls or her husband calls. Finally searched for her at Hanuman Temple and Muralidhar Bagh Temple, but she did not trace. The complainant requested for taking necessary action.

Basing on the above complaint, LW11/ HC 5081/ G. Lakshmiah registered a case in Cr.No. 375/2010, under the Head of ‘Woman Missing’ and handed over the case file to LW12/K. Ranga Subbaiah for further investigation.

While the investigation was in progress, LW12/K. Ranga Subbaiah examined the complainant and her husband and recorded their statements and all possible

V AMSJ

Fair Judgment in SC.No. 42/20173 efforts have been made to trace out the missing woman but in vain. On 01-12- 2020 an unknown female dead body aged about 25 to 30 yeas was traced at Tank

Bund and the corpse was disposed off by the Satyaharichandra foundation on 11- 12-2010 since the dead body is in highly decomposed state, which is the subject matter of Cr.No. 314/2010 under section 174 Cr.P.C. The Investigation Officer/A.

Prashanth SI of Police, Ramgopalpt PS has preserved the gold ornaments ie., 4 gold bangles and pair of ear tops and wearing clothes of the deceased and also took the photographs of the deceased for identification. LW12/K. Ranga Subbaiah along with the Missing woman’s father, her in laws went to Ramgopalpet PS and with the help of photographs and wearing clothes of the missing woman, they identified as the deceased is missing woman/P. Sarvani and also identified that the gold ornaments and also belongs to the (missing woman) deceased only. In the post mortem examination report the doctor opined that the death is due to

Asphyxia due to drowning.

Earlier in this case the deceased father lodged a complaint stating that his daughter’s husband Arvind Kumar and her in laws used to harass his daughter for not getting god job, and also for not keeping the house clean. They used to scold his daughter, for which she goes into depress mood. After her marriage in the year 2007 she went to London where her husband resides an she was sent back in the year 2009. Since then she was residing with her in laws house or at her parents house, but her husband not called her to London to accompany with him.

Due to depression and torture of her husband and her in laws the deceased committed suicide by drowning into Hussainsagar.

3.Basing on the above complaint the section was altered from Woman missing to 498”A’, 306 IPC and took up investigation.

While the investigation was in progress the mother of the deceased Smt B.

Vanamala (LW1) lodged complaint on 23-12-2010 and stated that at the time of marriage they had given Rs. 12,00,000/- as dowry and other house hold articles.

V AMSJ

Fair Judgment in SC.No. 42/20174

Thereafter A1 to A3, her husband and in laws looked after her well. In the year 2008 after the Aashada Masam A1 asked the deceased to go back to her in laws house, when she fails to go A1 issued divorce petition to her. Later the matter was pacified. In the year 2008 she went to London and stayed there for a short period. During that period A1 used to harass her and beat her for one plea or the other. While the deceased was in London, A1 used to lock her in a room and enjoyed with the call girls. When questioned, she ws beaten mercilessly blue and black. While staying in London A2 and A3 also came to London. During that period

A1 to A3 harassed her for one reason or the other. Due to the harassment meted out by them, she without informing them came to London airport to return to

India. On knowing this A1 came to London airport and took her to the house and beat her mercilessly and then took her to a lawyer and forced her to sign on a divorce papers. Later A1 informed the petitioner that the deceased went under depression and he is unable to keep in his house and asked them to book ticket and call back her to India. After booking a ticket she returned to India on 29-11- 2009 and there after she stayed with her parents. It is also came to know that earlier A1 married a foreigner and later divorced, but the same was hidden by A1 to A3.

4.Basing on the above complaint the section of law was altered from 498 A, 306 IPC to 304-B IPC and LW13/P.V.G. Vijaya Kumar took up investigation.

During the course of investigation, LW9/Tahsildar inquest, Hyderabad

Division examined LWs 1 and 2 ie., B. Vanamala and B. Ramaswamyand recorded their statements. LW1 and LW2 are the parents of the deceased. LW 3 and LW4 ie.,

G. Sunitha and K. Narsimha are the panch witnesses for inquest. LW5 to LW7 ie.,

K. Adikeshavulu (PC) are complainant shifted the dead body to mortuary from

Tank Bund and issued FIR in Cr.No. 314/2011 under section 174 Cr.P.C of

Ramgopalpet PS. LW8/Dr. Rajendra Kumar who conducted autopsy opined that the death is due to Asphyxia due to drowning.

V AMSJ

Fair Judgment in SC.No. 42/20175

While the investigation was in progress the accused persons ie A1 to A3 surrendered before the Hon’ble II Addl. Chief Metropolitan Magistrate Court at

Nampally, Hyderabad on 04-02-2011 and they were remanded to judicia custody.

While A1 husband of the decease is working in London for his arrest LOC is issued through the Joint Director, Bureau of Immigration to arrest him on his arrival to

India and NBW is pending against A1. After completion of investigation LW12/K.

Ranga Subbaiah filed charge sheet against A2 and A3.

5.Cognizance of the case was taken against the accused A2 and A3 for the offence punishable U/s 304-B of IPC and registered it as PRC No. 01/2012 on the file of II Additional Chief Metropolitan Magistrate, Hyderabad. On the appearance of the accused A2 and A3 A5, copies of the case documents were furnished to them as contemplated U/s 207 Cr.P.C before the trial court. Since the offence U/s 304-B IPC by the accused A2 and A3 is exclusively triable by the court of Sessions, the learned Magistrate has committed the case to the Hon’ble Metropolitan

Sessions Division, Hyderabad, vide his orders dated 29-09-2017 by following the

due procedure as contemplated U/s 209(a) Cr.P.C.

6.Accused A2 and A3 were examined U/s 239 Cr.P.C for the offence U/s 304-B of IPC. They pleaded not guilty and claimed to be tried.

7.After the closure of prosecution evidence, accused A2 and A3 were examined U/s 313 Cr.P.C by explaining the contents of incriminating evidence adduced against them by the prosecution witnesses, for which they denied the same and reported no defence evidence on their behalf.

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Fair Judgment in SC.No. 42/20176

8. In order to establish the offence of the accused, the prosecution examined

PW1 to PW5 and exhibits Ex. P1 to Ex.P5 and MO1 and MO2 were marked.

9. Heard arguments on both sides. The learned counsel for defence argued that the matter effected compromise outside the court. Hence material witness did not speak anything against the accused and not supported the case of the prosecution. The essential ingredients under section 304 B IPC that the deceased committed suicide within the seven years of marriage was not established by the prosecution witness to bring home the guilt of the accused. The Investigation

Officer evidence cannot be taken into consideration. When there is no prima facie case established the accused shall not be punished in the above section of law.

Hence the accused is entitled for benefit of doubt and they are liable for acquittal. On the learned Public Prosecutor argued that the case may be disposed on merits.

10.Now the point for consideration-

Whether A2 and A3 on 26-11-2010 subjected the deceased Smt. Boini Sharvani to cruelty and harassed her mentally and physically and thereby committed an offence punishable under section 304 B of IPC beyond all reasonable doubt?

11.It is for the prosecution to prove the offence U/s 304-B IPC it says that the following are the requirements to be established by the prosecution in order to attract the provisions of Sec. 304-B IPC

i) Death of woman must have been caused by any burns bodily injury or ii) Otherwise than under normal circumstances, to such death must have been occurred within seven years from the date of her marriage.

iii) Soon before her death, she was subjected to cruelty or harassment of her husband and relatives or in connection to demand for dowry.

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Fair Judgment in SC.No. 42/20177

12.In the instant case, the prosecution examined PW1 who is the defacto complainant and mother of the deceased has deposed that her daughter by name

Sravani’s marriage was took place with Aravind one and half prior to her death. At the time of marriage they gave Rs.12 Lakhs towards dowry in turn her in-laws gave 70 Tulas of Gold to her daughter and the marriage expenses were borne by her in-laws. After marriage, her daughter joined with her husband at the house of in-laws at Abids and they started to live separately. At the time of marriage her daughter was working at Pune after marriage she stopped working at Pune and wanted to get the job at Hyderabad after her marriage and joined at Wipro

Company. During employment she was asked to attend for job in an auto and her husband used to leave her in a car. The husband of the her daughter and her in- laws used to abuse her for no fault of her and her daughter used to tell their harassment to her. Both her daughter and her husband left to London for job from

Hyderabad. Her daughter did not get any job at London and her husband got temporary job. She was sent to Hyderabad from London as she could not secure job. Thereafter, during Ashadam her daughter was sent to her house from her in- laws house. During her stay at her house her son-in-law telephoned her daughter and asked her to attend his parents and by abusing her. Then herself and her husband dropped her daughter at her in-laws house. Her daughter joined coaching at Ameerpet. Thereafter, she went to London. But she could not get the job but her son-in-law used to beat her daughter and used to harass her by bringing some call girls to their house. Her son-in-law never had any affection towards her daughter and wanted her to do job and used to harass physically and mentally. On one day he took her daughter to a lawyer and forced her to give divorce by taking away her passport and visa and threatened her to give divorce.

Unless she gives divorce he would not return the passport and Visa. But her daughter signed on Divorce papers. Her daughter informed her about the

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Fair Judgment in SC.No. 42/20178 harassment given by her husband and unable to bear the same, she went to airport on coming to know this her son-in-law went to airport and took back her to his house after convincing her and never stopped harassment. After some days the in-laws of her daughter also went to London, they also harassed her both mentally and physically. Her son-in-law used to bring call girls into the house and the same was informed to her mother-in-law but her mother-in-law talked in favour of his son but not resisted his acts. After some time they informed her to take her daughter from London for which they had no money to book a ticket to her to send to India for which they booked a ticket for her. At the time when she started to travel from London her in-laws taken away her golden articles and send her back. After one month again her daughter searched for job at Hyderabad and she got job at Chennai. Her son-in-law used to send mails to her company stating that she was unfit for the job. Her son-in-law by name Aravind came to India when his Junior Paternal Uncle died. Her daughter worked at Chennai for six months. She stated that she is an illiterate and she cannot say the date, month and year when her daughter again went to Chennai and there she did her job for nine months, on one day her son-in-law/Aravind took her to hotel in the morning and send back her to Hyderabad in the evening and informed her that her husband asked her to stop the job since his mother wanted her to come to London after closing her job at Chennai. On the next day morning happens to be Friday she went to Abids to her in-laws house. On the next week Monday morning her daughter’s father-in-law telephoned us and enquired about her daughter and again they informed that they lodged a complaint with police at 08.00 am, by that time her daughter’s mother-in-law and her husband were present. Again witness says that both her in-laws were present in their house by that time her son-in-law was not in India. After that her in-laws used to tell about her daughter that they found her at different places and dragged the matter for 10 days. Her daughter was in the house of her in-laws. After 20 days of the incident police informed

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Fair Judgment in SC.No. 42/20179 them to identify the body which was found at Hussain Sagar. They could not identify her. They did not give any complaint to police. They searched for her daughter. They gave complaint to police that her daughter was found missing, the complaint was shown to the witness on which she put her thumb impression.

Ex.P.1 is complaint.

During her cross examination she stated that prior to marriage with her daughter, her son-in-law gave divorce papers of his earlier marriage. She admitted that they have not given Rs. 12 lakhs towards dowry to her son-in-law at the time of marriage since the marriage with her daughter was second marriage.

She further stated that the mother-in-law of her daughter never supported her son when he brought call girls to their house and they themselves created the story of call girls.

13.PW2 stated that on 01-12-2010 while he was on patrolling duty, on that day one home guard by name Immanuel also accompanied with him. They were on duty at 02.30 pm at Hussainsagar lake view. There we found one female dead body in the Hussainsagar aged about 25-30 years at Sailing club, opposite to

Hotel Marriott. They informed to police station about the body. Then they shifted the dead body to Gandhi Hospital and completed the formalities. The body was in

Multi-colour Kurta Pyjama. He gave complaint to police. Ex.P.2 is complaint.

During the cross examination he stated that he never saw the dead body of the deceased and never gave any complaint to police.

14.PW3 stated that on 01.12.2010 at 15.00 hrs LW.7 received a written complaint from PC-Adi Keshavulu, basing on that FIR was registered as a case in Cr.No.314/2010 under section 174 Cr.P.C and handed over to him for investigation. Ex.P.3 is FIR.

During course of investigation he recorded the statements of complainant and Home

Guard/ Immanuel. Then he visited the scene of offence on the same day situated at

Opp.Mariott Hotel, beside sailing club, Tankbund, there he found one unknown dead

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Fair Judgment in SC.No. 42/201710 body floating in the Tankbund water. He got picked up dead body from the water and the said dead body was belonged to female and aged about 25-30 years wearing

Kurta Pyjama. He got photographed the dead body. Then he shifted the body to

Gandhi Hospital for conducting inquest, autopsy and identification of the dead body.

He issued lookout notice to all the stations concerned and also published in news paper for identification of the body. On the next day 02.12.2010 he secured the presence of mediators Smt.G.Sunitha and K.Narsimha and conducted inquest over the dead body of the deceased and drafted the inquest report. He send requisition to the concerned doctor for conducting autopsy over the dead body of the deceased. He preserved the dead body for identification at Gandhi Hospital. Thereafter, after completion of autopsy he gave requisition to Satya Harischandra Foundation For

Cremation as nobody claimed the body. On 26.10.2010 SI/Ranga Subbaiah of PS Abids along with relatives of the deceased came to Ramgopalpet PS and enquired about the unknown dead body. They identified the dead body named as P. Sravani W/o Aravind

Kumar. Thereafter, the case was transferred to Abids Police where the case was registered as missing case. Ex.P.4 is inquest report.

During the cross examination he admitted that he have not sent original complaint lodged by LW7 to Abid PS. They have not conducted any scene of panchanama and not informed to MRO as the dead body was unknown dead body.

He have not issued any look out notice to any police station and also not given any paper publication.

PW4 registered a case in Cr.No. 375/2010 under Woman missing and issued FIR . On 11-12-2010 received information from, Ramgopal PS that they traced out one dead body at Hussain Sagar and sent a requisition to

Harischandra foundation as unclaimed body by registering a case in Cr.No.

314/2010 under section 174 Cr.P.C. He took the parents of the deceased to the police station and shown the photograph of the dead body and they identified the dead body and that it belonged to them. He examined and recorded the statements of the parents of the deceased. Then he requested the court for

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Fair Judgment in SC.No. 42/201711 alteration of section of law. Accordingly, they altered section of law form 174 to 498-A and 306 IPC and handed over golden bangles and ear tops which are marked as MO1 and MO2. Later A2 and A3 added as accused in this case. He handed over the CD file to ACP. Further investigation done by LW13/P.V.G. Vijaya

Kumar and LW14B. Limba Reddy. Ex.P5 is FIR.

15.PW5 took up investigation in Cr.No. 375/2010 from SI/LW12. He examined

PW1 and PW2 and recorded their statements. Subsequently he was transferred.

ACP/Limbareddy(LW14)has took up for further investigation and filed charge sheet.

16.In order to establish the offence to establish 304-B IPC it is necessary to see the requirements to be established by the prosecution as mentioned above, but the prosecution witness have not stated anywhere that she was subjected to cruelty soon before her death or harassment by her husband or her relatives for or in connection demand for dowry. There are no cogent and coherent reasons to establish the offence under section 304 B r/w 34 of IPC.

17.Now at the outset, it is pertinent to analyze the law on dowry death. Section 304 IPC, which defines, and provides the punishment for dowry demand, reads as under:

Section 304-B-Legislative history and interpretation-Phrase ‘soon before” -

Cannot be construed to mean‘ immediately before’- Prosecution must establish existence of “proximate and live link” between dowry death and cruelty and harassment in connection with dowry demand by husband and his relatives –

Evidence Act 1872, Section 113-B- Presumption under – Raising of -, and rebuttal thereof.

Sec 304-B IPC define ‘dowry death’ of a woman. It provides that ‘dowry death’ is where death of a woman is caused by burning or bodily injuries or occurs

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Fair Judgment in SC.No. 42/201712 otherwise than under normal circumstances, within seven years of marriage, and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of hr husband, in connection with demand for dowry. Sub-clause (2) provides for punishment for those who cause dowry death.

It was observed by the Hon'ble Apex Court in 2021 (2) ALD (Crl.) 360 (SC) in para -8 – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.

For the purpose of this sub-section, ‘dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Section 304-B(1) defines ‘dowry death’ of a woman. It provides that ‘dowry death’ is where death of a woman is caused by burning or bodily injuries or occurs otherwise than under normal circumstances, within seven years of marriage, and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry. Sub-clause (2) provides for punishment for those who cause dowry death. Accordingly, in Major Singh v State of Punjab , 2015 (2) ALD (Crl.) 617 (SC) = (2015) 5 SCC 201 = AIR 2015 SC 2081, three-Judges Bench of this Court held as follows:

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Fair Judgment in SC.No. 42/201713 “To sustain the conviction under Section 304-B IPC, the following essential ingredients are to be established:

(i) the death of a woman should be caused by burns or bodily injury or otherwise than under a ‘normal circumstance’;

(ii) such a death should have occurred within seven years of her marriage;

(iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband;

(iv) such cruelty or harassment should be for or in connection with demand of dowry ; and

(v) such cruelty or harassment is shown to have been meted out to the woman soon before her death.”

The first contentions part that exists in the interpretation of Section 304-B,

IPC relates to the phrase “soon before” used in the section. Being a criminal statute, generally it is to be interpreted strictly. However, where strict interpretation leads to absurdity or goes against the spirit of legislation, the

Courts may in appropriate cases place reliance upon the genuine import of the words, taken in their usual sense to resolve such ambiguities. At this juncture, it is therefore necessary to undertake a study of the legislative history of this section, in order to determine the intention of the Legislature behind the inclusion of

Section 304-B, IPC.

Section 304-B, IPC is one among many legislative initiatives undertaken by

Parliament to remedy a long-standing social evil. The pestiferous nature of dowry harassment, wherein married women are being subjected to cruelty because of covetous demands by husband and his relatives has not gone unnoticed. The

Parliament enacted the Dowry Prohibition Act, 1961 as a first step to eradicate this social evil. Further, as the measures were found to be insufficient, the

Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983) was passed wherein Chapter-XX-A was introduced in the IPC, containing Section 498-A.

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Fair Judgment in SC.No. 42/201714

However, despite the above measures, the issue of dowry harassment was till prevalent. Additionally, there was a growing trend of deaths of young brides in suspicious circumstances following demands of dowry. The need for a stringent law to curb dowry deaths was suo motu taken up by the Law Commission in its 91st Law Commission Report. The Law Commission recognized that the IPC, as it existed at that relevant time, was insufficient to tackle the issue of dowry deaths due to the nature and modus of the crime. They observed as under:

If, in a particular incident of dowry death, the facts are such as to satisfy the legal ingredients of an offence already known to the law, and if those facts can be proved without much difficulty, the existing criminal law an be resorted to for bringing the offender to book. In practice, however, two main impediments arise- (I) either the facts do not fully fit into the pigeonhole of any known offence; or

(ii)the peculiarities of the situation are such that proof of directly incriminating

(iii)facts is thereby rendered difficult.

18.In view of the above and on perusal of the record there are no corroborative piece of evidence to establish the offence under section 304 B of

IPC beyond all reasonable doubt.

19.At the outset on perusal of evidence on record and on perusal of documents, the prosecution has not established the offence under 304-B IPC their evidence not at all satisfied with the essential ingredients under 304-B IPC. None of the witnesses elicited about the death of the deceased, how it was occurred and under what circumstances death was occurred to the deceased. Further even they failed to establish that the death of deceased was occurred within seven years of marriage. The prosecution miserably failed to establish the guilt of the accused beyond all reasonable doubt.

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Fair Judgment in SC.No. 42/201715

20.In the result, accused A2 and A3 are found not guilty for the offence

U/s 304-B of IPC, accordingly they are acquitted U/s. 235(1) Cr.P.C for the said offence. The bail bonds of A2 and A3 shall stand valid on record for a period of six months as per Sec 437-A Cr.P.C. MO1 and MO2 shall be returned to its owner after expiry of appeal time.

Directly typed to my dictation by the Stenographer of this court, corrected, on this the 28 th day of April, 2022.

V ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1: B. Vanamala NIL PW2: K. Adikeshavulu PW3: A. Prasanth PW4: K. Ranga Subbaiah PW5: Vijaya Kumar

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P.1: Complaint of PW1 NIL Ex.P.2: Complaint of PW2 (PC) Ex.P.3: FIR Ex.P4: Inquest Report Ex.P5: FIR in Cr.No. 375/2010

MATERIAL OBJECTS MARKED

MO1: Four bangles MO2: Pair of ear tops

V ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

Copy to: The Hon’ble II Addl. Chief Metropolitan Magistrate, Hyderabad.

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Fair Judgment in SC.No. 42/201716

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Fair Judgment in SC.No. 354 of 20161

IN THE COURT OF THE V ADDITIONAL METROPOLITAN SESSIONS JUDGE:

AT HYDERABAD

Present: Smt. M. Kanaka Durga V Addl. Metropolitan Sessions Judge, (Mahila Court), Hyderabad.

DATED THIS THE 27 th DAY OF APRIL, 2022

SESSIONS CASE NO. 354 OF 2016

(in PRC No. 26 of 2016)

Committed by : Sri. D. Ramakanth, IV Addl. Chief Metropolitan Magistrate, Hyderabad. Crime Number and Police Station: Crime No. 205 of 2016, PS. Osmania University, Hyderabad. Name and description of the: Shaik Hasam Ali S/o Akbar Ali, Age: 38 Accused years, Occ: Business, R/o H.No. 73, Camp No. 3, Osmania University Campus, Hyderabad.

Name and description of the: The State represented by The Sub-Inspector of Police, Osmania University, Hyderabad. Prosecution conducted by : Addl. Public Prosecutor Accused defended by: M/s Mohammed. Ismail and associate Counsel for accused. Offence charged: U/sec. 498-A, 306 IPC Plea of the accused: Pleaded Not guilty. Finding of the Court: Found not guilty Result : In the result, accused is found not guilty for the offences under section 498-A and 306 of IPC and accordingly he is acquitted under section 235(1) Cr.P.C for the said offence. The bail bonds of the accused shall stand valid on record for a period of six months as per Sec. 437-A Cr.P.C. MO1 and MO2 shall be destroyed after expiry of appeal time.

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

1.The Sub-Inspector of Police, PS Osmania University, Hyderabad has filed this charge sheet against accused for the offences under section 498-A, 306

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Fair Judgment in SC.No. 354 of 20162 of IPC in Cr.No. 205/2016.

2.The brief facts of the case of the prosecution are that-

On 06-05-2016 at 2000 hours received a complaint from LW1/Sri. Md.

Ghouse stating that he has on brother and four sisters, in which his 3rd sister by name Nusrat Anjum, aged about 28 years loved Shaik Hasam Ali and they both got married in the year 2013 and they were blessed with one son aged 10 months. After their marriage they settled at Chilkuru Nagar. But after two months after their marriage the accused used to quarrel with his wife and he was also ready to leave her. But the matter was settled in the presence of elders. There was change in the attitude of the accused and he used to quarrel and torture his wife ie., Nusrat Anjum. In the past they lodged a complaint in CCS, Woman Police

Station on this issue. Then two months back they shifted to H.No. 73, Camp No. 3,

OU Campus.

On 06-05-2016 at 1400 hours while the complainant was outside he received a phone call from his wife (LW2) Reshma Begum in which she said that his sister ie., Nusrat Anjum committed suicide by hanging herself with her chunni and she was shifted to Gandhi Hospital. Immediately on receiving the information at about 1500 hours he rushed to Gandhi Hospital where he found his sister was on stretcher where the duty doctors after examining her they declared she was expired.

Later the complainant asked how this happened, for that his wife stated that she heard crying sound of deceased son, on doubt she tried to entered into her room but it was locked from inside. So she entered into the room from back door and where she found that Nusrat Anjum as committed suicide and stated that the say before they both quarrelled to each other on the issue of illegal affair between

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Fair Judgment in SC.No. 354 of 20163

Shaik Hasam Ali and other lady, in that issue the deceased husband abused, beat and tortured her and he also used to say that if she dies he will feel happy, due to which she went in to depression and committed suicide.

On receipt of complaint from LW1/Mohd Ghouse, LW16/Ch. Saidulu registered a case in Cr.No. 205/2016 under section 498-A, 306 IPC and took up the investigation.

During the course of investigation, LW16/Ch. Saidulu examined the complainant and recorded his statement. He visited the scene of offence and conducted scene of offence panhanama and seized chunni and two plastic chairs in the presence of mediators of LW10/Mohd Rayees Ahmed and LW11/Mohd Ali and drafted rough sketch. At the scene of offence LW16/Ch. Saidulu examined

LW2 to LW7 ie., Smt Reshma Begum, Smt Zarida Begum, Smt Ghousea Begum,

Md Parween, Shaik Mumtaz Begum, Smt Zaheer Begum and recorded their statements and served notice under section 41 (a) Cr.P.C to the accused.

Since the marriage of deceased is within seven years, LW16/Ch. Saidulu sent requisition to R.D.O with a request to depute MRO inquest to visit Gandhi

Hospital and to conduct inquest over the dead body of the deceased. Accordingly

LW14/Smt. M. Esther Anita visited Gandhi Hospital and conducted inquest in the presence of LW12/Smt Jamuna and LW13/Smt Zameena Begum on 07-05-2016. At the time of inquest LW14/M. Esther Anitha recorded the statements of LW8/Md.

Wahed and LW9/Mohd Ghouse Moinuddin. After inquest the body was sent for Post

Mortem Examination. LW15/Dr. Mohan Singh conducted autopsy over the dead body of the deceased. After Post Mortem Examination he body was hand over to the blood relatives for performing her final rites.

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Fair Judgment in SC.No. 354 of 20164

While the investigation was in progress, on receipt of credible information that the accused is available at his house. LW16/Ch. Saidulu along with staff rushed to the spot and apprehended the accused at Osmania University Campus,

Hyderabad on 07-05-2016 at 1330 hours, brought him to Police Station at 1400 hours. During the enquiry he voluntarily admitted his guilt to have committed the offence. As such LW16/Ch. Saidulu affected arrest and produced before the

Hon’ble Court. LW16/Ch. Saidulu obtained Post Mortem Examination report

wherein LW15/Dr. Mohan Singh conducted autopsy over the dead body of the deceased and opined that the death of deceased is due to hanging. After completion of investigation LW16/Ch. Saidulu filed charge sheet against the accused.

3.Cognizance of the case was taken against the accused for the offence punishable under section 498-A, 306 of IPC and registered it as PRC 205/2016 on the file of IV Addl. Chief Metropolitan Magistrate, Hyderabad.

4. On appearance of accused, copies of the case documents were furnished to him as contemplated under section 207 Cr.P.C before the trial court. Since the offence under section 498-A, 306 of IPC is exclusively triable by the court of

Sessions, the learned Magistrate has committed the case to the Hon’ble

Metropolitan Sessions Judge, Hyderabad, vide his orders dated 08-09-2016 by following the due procedure as contemplated under section 209 Cr.P.C.

5. Accused is examined under section 239 Cr.P.C for the offence under 498-

A, 306 IPC. He pleaded not guilty and claimed to be tried.

6.After the closure of prosecution evidence, accused was examined under section 313 Cr.P.C by explaining the contents of incriminating evidence adduced

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Fair Judgment in SC.No. 354 of 20165 against him by the prosecution witnesses, for which he denied the same and reported no defence evidence on his behalf.

7. Heard arguments on both sides. Learned counsel for defence argued that the section 498-A ingredients does not reflect anywhere in the evidence of prosecution witnesses ie., PW1 to 8 who are the material witnesses in this case are all eye witnesses and circumstantial witnesses. PW1 is the complainant.

PW2 to PW8 are eye witnesses and circumstantial witnesses. The Hon'ble High

Court held in 2018 (I) ALD (Crl.) 990, para 29- where harassment, if any , was because of accused suspecting the fidelity of the deceased, which also remained unproved. In the absence of any legal evidence, to that affect, the ingredients, constituting an offence under section 498-A IPC, are not made out.

The material witnesses who are examined as PW1 to PW8 have failed to establish the mensrea to commit the offence under section 306 IPC. It requires active act or direct act which led the deceased to commits suicide. There is no acceptable evidence on record to show that the accused harassed the deceased for

additional dowry as their marriage is love marriage.

The defence took plea that the deceased was obtained divorce in the year 2013 but the alleged incident was happened on 06-05-2016. As per caste custom if they really took divorce why the deceased lived with accused along with her children. But nowhere mentioned about the fact that why the deceased lived with accused and they further took plea that the marriage of the deceased and accused is live marriage and the parents of the deceased not at all interested with marriage of accused and they used to force her to take divorce from the accused. But the reason best known to the deceased why she continued relationship with accused even after her customary divorce took by the deceased and there is no evidence on record and never spelt about the reasons for continuation of relationship with accused by the deceased.

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Fair Judgment in SC.No. 354 of 20166

8.As per section 498-A of IPC the essential ingredients of 498-A IPC are as follows- who ever being the husband or the relative of the husband of a woman, subjects such woman, to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

The essential ingredients of 306 IPC are as follows- if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for term which may extend to ten years, ans also be liable to fine.

9.As can be seen from record there are eye witnesses to the incident ie., PW2 and PW3 but they are not stated anything the reason for harassment given by accused to the deceased. Whether the said reason was for suspecting fidelity or demand for additional dowry. Why she was subjected to cruelty was not stated anywhere in their evidence. PW3 to PW5 are circumstantial witness also not stated about the cruelty or harassment given by the accused to the deceased.

The reason for giving harassment was also not stated anywhere in their evidence.

The defence always defends on the customary divorce which was obtained by the deceased and accused but failed to say about the continuation of relation between the deceased and accused as they took divorce in the year 2013, but the alleged incident took place in the year 2016 ie., 06-05-2016. Further the witnesses not stated anywhere in their evidence that the accused abetted the deceased to commit suicide. The eye witness not supported the case of the prosecution. The

Circumstantial witnesses also not supported the case of the prosecution to bring home the guilt of the accused under setion 498-A and 306 IPC. PW1 is the close relative of the deceased. There is no legal acceptable evidence on record to show that the deceased was subjected to cruelty. Inorder to establish the offence under

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Fair Judgment in SC.No. 354 of 20167 section 498-A there must be demand for additional dowry and property by the accused and relatives of the deceased tried to establish that they paid the dowry as demanded by the accused. In the instant case the marriage of the deceased and accused is love marriage. Hence there is no giving and receiving dowry by the accused from the parents of the deceased. Even PW1 never stated about the demand of additional dowry by accused to the deceased for the said reasons only the accused has subjected the deceased to cruelty so as to bring home the guilt of the accused under section 498-A IPC. Therefore benefit of doubt shall be rightly be given to the accused. The prosecution failed to establish the guilt of the accused beyond all reasonable doubt and the accused is liable for acquittal. On the other hand the learned Public Prosecutor argued that the case may be disposed off on merits.

10.In order to establish the case of the accused the prosecution examined PW1 to PW10, DW1 and Ex.P1 to Ex.P8, Ex.D1 and MO1 and MO2 were marked.

11.Now the point for determination is:

i) Whether the accused on or prior to 6 th day of May, 2016 at Camp No. 3, Osmania University Campus, Hyderabad being the husband of deceased/Smt. Nusrat Anjum subjected her for cruelty by picking up quarrel with her, harassed and abused her and thereby committed an offence punishable under section 498-A IPC?

ii) Whether the accused quarrelled with the deceased/ Smt. Nusrat Anjum and abused her mentally and physically and abetted her to commit suicide by hanging herself with chunni to the wooden roof and thereby committed an offence punishable under section 306 IPC?

12.To answer about the two charges, it is for the prosecution to establish that the deceased committed suicide by the harassment given by accused for demand for additional dowry and she was subjected to cruelty before commission of suicide by her. In the instant case the deceased committed suicide by hanging.

It is for the prosecution to establish through its witnesses that the deceased

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Fair Judgment in SC.No. 354 of 20168 committed suicide on the harassment given by the accused for demand for

additional dowry or for any other reasons made her to subject to cruelty and

thereby deceased committed suicide by hanging.

13.In order to establish the offence- PW1 who is material witness is the relative of the deceased not elicited anything for the reason for giving harassment to the deceased by the accused. No single or specific act that constituted the harassment given by the accused to the deceased. During cross examination also nothing elicited, but the defence took plea that they have taken divorce in the year 2013 and the accused had illicit intimacy with some other woman by the accused due to which the disputes arose between them. But there is no evidence on record to show that the accused had illicit relationship with some other woman due to which disputes arose between the deceased and accused and thereby she committed suicide on that aspect.

14.PW2 and PW3 are the eye witnesses have not elicited about the issue, but they categorically stated customary divorce took between them and deceased committed suicide at the house of accused. But the defence questioned about commission of suicide by the deceased at parents house of the deceased. The defence tried to change the place of offence, but the eye witnesses and circumstantial evidence assertively stated in their evidence that deceased committed suicide in the house by hanging where both accused and deceased lived together.

15. PW4 and PW5 are circumstantial witnesses also not stated the cause for harassment given by the accused to the deceased. As can be seen from the evidence PW4 and PW5 are neighboring persons of the deceased.

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Fair Judgment in SC.No. 354 of 20169

16.PW6 and PW7 are panch witnesses. They stated that they signed on panchanama and rough sketch which are marked as Ex. P2 Ex.P3. Police seized two chairs MO1 and MO2 maroon colour chunni with which the accused committed suicide.

17.PW7 is the social worker in whose presence inquest panchanama was conducted stated that Ex.P4 is inquest panchanama. Ex.P5 is the signature on inquest panchanama.

18.PW8 is Tahsildar who conducted inquest over the dead body of the deceased. Ex.P6 is inquest panchanama.

19.PW9/ Dr. S. Mohan Singh stated that he is retired from his service. Earlier he worked as Associate professor in Kakatiya Medical College, Warangal. On 07- 05-2016 at 12.10 pm he received requisition from Inspector of Police Osmania

University police station for conducting Postmortem examination over the dead body of Nusrath Anjum @ Fathima. Accordingly he conducted postmortem examination from 12-15 am to 1.45 pm. On examination he found anti-mortem ligature mark of 19X1 cm on left side and front of neck and extending from 1 cm below the right angle of mandible to back of right side neck, through left side neck. It is 1 cm below right angle of mandible, 6 cm below chin, 6 cm below left angle of mandible. Gap of 8 cm present on right side neck. Base brown in colour.

Soft tissue under ligature mark contused, Hyoid, thyroid, cricoid intact all the internal organs congested. The deceased died in Gandhi hospital on 06-05-2016 at 3.pm. The cause of death to the best of his knowledge and belief of death is due to hanging. Ex.P7 is Post Mortem Examination Report.

V AMSJ

Fair Judgment in SC.No. 354 of 201610

20.PW10/ Ch. Saidulu, Sub-Inspector of Police of PS Osmania University stated that on 06-05-2016 at 20.00 hours he received a complaint from PW1. As per the contents of the complaint he registered a case in crime no. 205/2016 for the offence under section 306, 498-A of IPC and issued FIR and took up investigation.

Ex.P8 is the FIR. During the course of investigation he examined and recorded the statement of PW1 and visited the scene of offence and prepared the scene observation panchanama and rough sketch and seized one Chunni and two plastic chairs in the presence of PW6 and LW11/Mohd Ali. MO1 is the two plastic chairs.

MO2 is one Chunni. Thereafter he examined and recorded the statements of PW2 to PW4, LW3/ Zarida Begum and LW5/Md Parween. Thereafter he send a requisition to RDO to depute the MRO to conduct the inquest. Accordingly PW8 conducted inquest in the presence of PW7 and LW12/Jamuna. After completion of inquest he send requisition to conduct Post Mortem Examination. Accordingly

PW9 conducted Post Mortem Examination over the dead body on 07-05-2016. On the same day at 13.30 hours on credible information he apprehended the accused and produced before the court. Later he collected Post Mortem Examination

Report/Ex.P7 and filed charge sheet for the offences punishable U/sec. 306, 498-A

IPC.

21.During cross examination PW10 never stated about the reasons for the harassment of the accused to the deceased. He too stated that there was delay of five hours of lodging complaint ie., on 6-5-2016. in order to establish the offence under section 498-A the Investigation Officer has to examine and collect the evidence from neighbouring person of the deceased to know the cause of death of the deceased and what are the circumstances that have driven her to commit suicide. But the Investigation Officer did not investigate the case on this aspect and he also admitted the same. When the marriage is love marriage there would not be any other reasons to bring home the guilt of the accused under

V AMSJ

Fair Judgment in SC.No. 354 of 201611 section 498-A IPC. It requires active act or direct act which lead the deceased to commit suicide. There is no acceptable evidence on record to show that the accused harassed the deceased either from demand for additional dowry or any other reasons. In matrimonial offences there are several causes which can be or cannot be decided to bring under the guise of harassment so as to punish the accused under section 498-A IPC. But the only intention of the legislation is to cub the offence against woman under section 498 IPC. Inorder to pacify the dispute to protect the intention of legislature the act which were done by accused towards deceased or victim must be direct or active act and there must be a harassment or evil intention to harass wife or victim or deceased. In the instant case the prosecution witness never stated anything against the accused about the harassment given by him to deceased and drive her to commit suicide so as to punish him under section 498-A and 306 IPC.

22. After completion of 313 examination DW1 examined on behalf of defence to establish that on 12-03-2013 the deceased and accused obtained customary divorce in the presence of DW1 who issued customary divorce certificate ie.,

Ex.D1

23. At the outset on perusal of oral and documentary evidence on record the the prosecution failed to establish the offence under section 498 A IPC and also the offence under section 306 IPC. The prosecution witness miserably failed to establish the guilt of the accused beyond all reasonable doubt. Hence benefit of doubt shall be rightly given to the accused.

24.In the result, accused is found not guilty for the offences under section 498-A and 306 of IPC and accordingly he is acquitted under section 235(1) Cr.P.C for the said offence. The bail bonds of the accused shall stand valid

V AMSJ

Fair Judgment in SC.No. 354 of 201612 on record for a period of six months as per Sec 437-A Cr.P.C. MO1 and MO2 shall be destroyed after expiry of appeal time.

Directly typed to my dictation by the Stenographer of this court, corrected, on this the 27 th day of April, 2022.

V ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

PW1: Mohd Ghouse

PW2: Reshma Begum

PW3: Ghousea Begum

PW4: Shaik Mumtaz Begum

PW5: Mohd Abdul Waheed

PW6: Mohd Rayees Ahmed

PW7: Zameena Begum

PW8: M. Esther Anitha

PW9: Dr. S. Mohan Singh

PW10: Ch Saidulu

FOR DEFENCE:

DW.1: Md. Yaseen Khan

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1: Complaint of PW1 Ex.P.2: Signature of PW6 on panchanama Ex.P.3: Signature of PW6 on rough sketch Ex.P.4: Inquest panchanama Ex.P.5: Signature of PW7 on Inquest panchanama Ex.P.6: Inquest report Ex.P.7: Post Mortem Examination Report Ex.P.8: FIR

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Fair Judgment in SC.No. 354 of 201613

FOR DEFENCE:

Ex.D1: Divorce Certificate

MATERIAL OBJECTS MARKED

MO1: Two chairs MO2: Maroon colour chunni

V ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

Copy to: The Hon’ble IV Addl. Chief Metropolitan Magistrate, Hyderabad

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