Smt M.Kumudini

1

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE,

VIJAYAWADA.

Present: Smt.M.KUMUDINI,

Principal Junior Civil Judge,

FAC/I Additional Junior Civil Judge, Vijayawada.

Thursday, the 18th day of January, 2018.

O.S.No.236/2016

Between:

1) Chandu Valeswara Rao, S/o.Nageswara Rao, Hindu, aged about 34 years, Occupation: Employee, R/o.1028, San Jan Cinto Drive, Apt # 2122, Irving Texas, USA, ZIP­75003.

2) Movva Vyshnavi, W/o.Chandu Valeswara Rao, Hindu, aged about 31 years, Occupation: Employee, R/o.1028, San Jan Cinto Drive, Apt # 2122, Irving Texas, USA, ZIP­75003. 

...Plaintiffs

A N D

1) Amrutham Satyanarayana, S/o.Venkateswara Rao, Hindu, aged about 65 years, Retired Employee, R/o.Flat No.510, Fourth Floor, Sai Karthik Park View Apartment, Gunadala, Vijayawada.

2) Vadde Maheswara Rao, Hindu, aged about 56 years, Self- employed, R/o.Flat no.509, Fourth Floor, Sai Karthik Park View Apartment, Gunadala, Vijayawada.

3) Ramisetty Veera Swamy, S/o.(Late) Ranga Rao, Hindu, aged about 49 years, Builder, R/o.D.No.40-15-2/15, Brundavan Colony, Labbipet, Vijayawada.

4) Ramu Kuppa, S/o. Late.Narasimha Sastry, Hindu, aged about 42 years, Employment, R/o.Flat No.108, Ground floor, Sai Karthik Park View Apartment, Gunadala, Vijayawada.

5) Devulapalli Shyam Kumar, Hindu, aged about 35 years, Private Employee-Tenant in Occupation Flat No.108, Ground Floor, Sai Karthik Park View Apartment, Gunadala, Vijayawada.

6) Sai Karthik Park View Owners Welfare Association, Rep., by its Secretary, Gunadala, Vijayawada.

... Defendants

This suit is coming before me on 28.11.2017 in the presence of Sri T.V.L.N.M.Murthy, Advocate for plaintiffs and of Sri.P.Mohan Ram Prasad, Advocate for Defendants 1,2 and 6 and of Sri.Viswanadha Satyanarayana Advocate for defendant No.3 and of Sri.V.V.Ravi Kumar, Advocate for the Defendant No.4 and the defendant No.5 is set exparte and upon perusing the plaint and other connected material papers on record and having stood over for consideration till this day this Court delivered the following:- 2

J U D G M E N T

1.This is a suit filed by the Plaintiffs against the defendants for permanent injunction restraining the defendants 1, 2 and 6 from interfering with plaintiff’s peaceful possession and enjoyment of the parking area, more fully described in the plaint schedule and delineated in the plaint plan either by parking the vehicles of others or obstructing the use and occupation of the occupants of Flat

No.107, in the said parking area and for costs of the suit.

2.The brief averments of the plaint are as follows:-

The plaintiffs are the absolute owners of Flat No.107 and an extent of 150 Sq.Ft, car and scooter parking place in Sai Karthik Park

View Apartment, Gunadala, Vijayawada. Plaintiffs purchased the said property under the registered sale deed dated 29.07.2015 vide document No.4149/2015 on the file of Joint Sub-Registrar, Gunadala from one Kothapalli Nagaraju, S/o.Subbarayudu. The said Nagaraju purchased the said flat and the parking area attached to the said flat as per the registered sale deed dated 15.09.2014, registered as

Doc.No.7213/2014, from Ramisetty Asha Rani and her husband

Ramisetti Veera Swami. An extent of 150 Sq.Ft of scooter and car parking area in the Ground floor of the said apartment complex is earmarked for the use of occupiers of Flat No.107 owned by the plaintiffs. Plaintiffs predecessor in title had been using the same scooter and car parking area prior to plaintiffs purchasing the said property. After obtaining the registered sale deed, the father of the second plaintiff is put in possession of Flat No.107 and the car and scooter parking area referred above. The said car and scooter parking area is exclusively meant for the use of the occupants/owners of flat NO.107, from the date of their purchasing flat No.107 have been using the parking area as shown in the plaint plan, without any interruption either from the owners of other flats or 3 from the tenants in occupation of such flats. While so on 23rd to 25th

Jan, 2016 the father of the second plaintiff was away from

Vijayawada. However, he parked his car bearing Regn.No. AP16 CZ 4338 in the parking place shown in the plaint plan. The father of the second plaintiff returned to Vijayawada and he found that the number of flat transcribed on the beam in the parking place provided for Flat No.107 is erased and in the said place Flat No.108 is written.

The second plaintiffs father found that one of the beams of ground floor slab in the place provided for parking of scooters of all the flat owners till such time is painted and flat No.107 is written thereon as if the said place is provided for parking of the car/scooter belonging to the owners/occupants of Flat No.107. The parking place where

Flat No.107 is newly painted is being used by the owners or occupants of all the flats, even as on today for parking two wheelers.

Further the said scooter parking place is about 80-90 Sq.Ft, and unfit for car parking. At the time when the parking places were originally allotted to each of the flat owners/occupiers number of their respective flats were transcribed on the pillars of that parking area.

While doing so, to the pillars forming part of plaintiffs parking area, flat No.107 is written on one of such pillars. Such writing is still there and is visible to a naked eye. Surprised by the changes made in his absence, the second plaintiffs father made enquiry and the changes were illegally made by defendants 1 and 2. The first defendant is the one of the owners of the Flat No.510 and the second defendant is the father of the owner of Flat No.509. The parking area for them is originally provided on the rear side of the apartment complex. The parking area originally provided for the use of occupants of Flat

No.107 is on the front side and that with a view to occupy the said parking place, they have altered the flat numbers and in that process 4 the parking place number allotted to the plaintiffs is changed. When questioned, the defendants 1 and 2 informed the father of the second plaintiff that it was at the instance of the builder i.e., defendant No.3. When the father of second plaintiff got enquires, he learnt that the 3rd defendant did not make any changes and that it is only defendants 1 and 2 that are responsible for such changes. The 3rd defendant informed the father of the second plaintiff that after execution of the sale deeds and allotment of the respective parking places he never interfered with the flats sold away by him and that the defendants Nos:1 and 2 being the office bearers of the Sai

Karthik Park View Owner’s Welfare Association are responsible for such changes. As the defendants 1 and 2 are giving evasive answers, as if third defendant is responsible for altering the flat numbers of the parking places, defendant No.3 is impleaded as proper and necessary party. The 4th defendant is the owner of the

Flat No.108 and he is residing at Hyderabad and his flat is under the occupation of a tenant, who is none other than the defendant No.5 herein. When enquired, the 5th defendant informed the father of the second plaintiff that the car of such tenant is being parked in the parking place to which no number is allotted originally. The father of the second plaintiff requested defendant No.1 and 2 to change the flat numbers painted on the various beams of the parking places, illegally and unauthorizedly altered by them. But they refused to do so. Their only intention appears to be to encroach the plaintiffs parking place and hence, the plaintiffs are constrained to file the present suit for permanent injunction.

3.Defendants 1, 2 and 3 filed their written statements. The 4th and 6th defendants adopted the written statements filed by the defendants 1 and 2. The 5th defendant was set exparte. The brief 5 averments of the written statement filed by the defendants 1, 2 and 3 are as follows:

The plaintiffs are the absolute owners of Flat No.107 and an extent of 150Sq.ft car & Scooter parking place in “Sai Karthik

Park View Apartment”, Gunadala, Vijayawada and they purchased it from one Kothapalli Nagaraju. The plaintiff's predecessor in title had never used the same scooter and car parking area prior to plaintiffs purchasing the property. There was no permanent earmark for the use of occupiers of Flat No.107 owned by the plaintiffs. There is no clear allotment of parking area to the respective flat owners. The association made efforts to get allotment of specific parking area from the side of the builder i.e., 3rd defendant. The father of the second plaintiff is in possession of Flat No.107, but particular parking area was not being used. The area which has been shown in the plaint plan is not true and correct and it is drawn for the purpose of this suit only. The alleged car parking area is not at all exclusively meant for the use of owners of flat No.107 and it is never in the usage of plaintiffs and therefore, question of interruption either from the owners and tenants does not arise at all. The father of the second plaintiff never questioned the defendants and therefore at the instance of the builder/3rd defendant such numbers were changed all that are created for the purpose of the suit and the defendants 1 and 2 are nothing to do with the changes of the numbers in any manner. The 3rd defendant/builder neither specified nor allotted any place towards the parking area to the vendor of the plaintiffs at any point of time. In fact the vendor of the plaintiffs did not occupy his flat i.e., 107 physically and it was kept vacant till it was sold to the plaintiffs. Whatever the numbers written on the pillars are all temporary one and those numbers were written by the 6 builder/3rd defendant for his understanding. On 21.12.2015 “Sai

Karthik Park View Apartment Owners Association” was registered under A.P. Societies Registration Act, 2001 vide Registration

No.380/2015. On 27.12.2015 the defendants 1 and 2 convened emergency meeting and discussed some important issues related to their Apartment. Car parking problem is one of them. When the issues were brought into the notice to the builder on 23.01.2016 the builder promised to allot the parking areas to the apartment and respective flat owners within short time. The builder/3rd defendant erased old numbers and painted new numbers according to his plan and adjusted car and two wheeler vehicles parking area for all flat owners and also gave one plan signed by him to the defendants on 06.02.2016. This plan was brought into the knowledge of all flat owners. Everyone agreed and none has objected for the said plan given by the builder. The plaintiff did not clear the arrears towards maintenance of the Apartment and further constructed one grill to their flat i.e., 107 in the eastern side. When these two things were questioned by the defendants, the father of the second plaintiff, bore grudge against the defendants and filed this false and vexatious suit against the defendants without any reason and hence, prayed the court to dismiss the suit with exemplary costs.

4.Basing on the pleadings, my learned predecessor settled the issues as under:

1. Whether the plaintiffs are entitled for decree of permanent injunction as prayed?

2. To what relief?

5.At the event of trial, the Special Power of Attorney Holder of the plaintiffs, who is none other than the father of the second plaintiff is examined as PW.1. Kothapalli Nagaraju and Komatla Ravi 7 Reddy are examined as PWs:2 and 3. Ex.A1 to A4 are marked. The first defendant is examined as DW.1. Tirumalasetti Suresh Kumar is examined as DW.2. The 3rd defendant/builder of Sai Karthik Park

View Apartments is examined as DW.3. Exs. B1 to B3 are marked on behalf of the defendants.

6.Learned counsel for the plaintiffs argued that the plaintiffs purchased the plaint schedule property for valid consideration along with the car and scooter parking and they are enjoying the same without any interruption from anyone. He also argued that during the absence of the father of the second plaintiff, the Flat number on the beam of the parking area was intentionally changed and it was transcribed in another place as Flat No.107 which is not at all sufficient for car parking and the defendants thereby interfered with the possession and enjoyment of the plaintiffs over the plaint schedule property and sought the court to decree the suit. Per contra, learned counsel for the defendants argued that the builder has allotted the car parking temporarily and after forming of association the builder has allotted permanent car parking and also issued a plan to the defendants and they also submitted that the 3rd defendant erased the old numbers and painted the numbers according to his plan and adjusted car and scooter parking area for all the Flat owners and the defendants 1 and 2 are nothing to do with the changing of the numbers and sought the court to dismiss the suit with costs.

7.Heard both sides. Perused the material on record.

ISSUE No.1:-

8. Pertaining to this issue, initial burden is on the plaintiffs to establish that they are in possession and enjoyment of the plaint schedule property as on the date of filing of the suit and the 8 defendants interfered with the same. To substantiate the same, The

Special Power of Attorney Holder of the plaintiffs i.e., father of the second plaintiff is examined as PW.1. He filed his chief affidavit by reiterating the contents of the plaint. According to him, the plaintiffs are the absolute owners of Flat No.107 and an extent of 150 Sq.Ft car and scooter parking place in “Sai Karthik Part View Apartment,

Gunadala, Vijayawada” and they purchased the same under Ex.A1 on 29.07.2015 from Kothapalli Nagaraju i.e., PW.2. PW.2 purchased the said Flat and parking area attached to the said flat under original of Ex.A2 on 15.09.2014 from Ramisetty Asha Rani and her husband

Ramisetty Veera Swami. An extent of 150sq.ft scooter and car parking area in the ground floor of the said apartment complex is ear marked for the use of occupiers of Flat No.107 which is owned by the plaintiffs. They are put in possession of Flat No.107 and car and scooter parking area referred above, after obtaining original of Ex.A1 registered sale deed. The said car and scooter parking area is exclusively meant for the use of occupants/owners of the Flat

No.107.

9.PW.2, who is the vendor of the plaintiffs also deposed in similar lines about the execution of Ex.A2 by his vendors in his favour and so also execution of original of Ex.A1 by him in favour of the plaintiffs. He further deposed that parking place for the respective Flat owners were earmarked in the stilt floor of the said apartment complex. Numbers of each flat were painted on the beam reflecting the place of parking provided for each of the flat owners/occupiers. At the time of delivering flat No.107 to PW.2, the 3rd defendant delivered the physical possession of the parking area ear maked and provided for the said flat. As the internal structures were not constructed by the builder, he was forced to undertake the 9 said works and internal decoration works etc., for a period of 5-6 months. During the said period he used the parking space provided to Flat No.107. PW.3, who is the attester of the original of Ex.A1 which was executed by PW.2 in favour of the plaintiffs also deposed corroborating PWs:1 and 2 about the purchase of the Flat No.107, along with car and scooter parking area by the plaintiffs from PW.2 and about his presence at the time of delivery of physical possession of the parking area and so also the delivery of Flat No.107 to PW.1.

10.According to PW.1, from 23rd to 25th January, 2016 he was away from Vijayawada and however he parked his car bearing

No.AP16CZ 4338 in his parking place and when he returned to

Vijayawada, he found that the number of the Flat transcribed on the beam in the parking place provided for Flat No.107 is erased and in the said place Flat No.108 is written. He also found that one of the beams of ground floor in the place provided for parking of scooters of all the Flat owners till such time is painted and flat no.107 is written thereon as if the said place is provided for parking of the car/scooter belonging to the owners/occupants of Flat No.107. The parking place where Flat No.107 is newly painted is being used by the owners or occupants of all the flats even as on today for parking two wheelers. Further, the said scooter parking place is about 80-90

Sq.Ft, and unfit for car parking. At the time when the parking places were originally allotted to each of the flat owners/occupiers number of their respective flats were transcribed on the pillars of that parking area. While doing so to the pillars forming part of plaintiffs parking area, flat No.107 is written on one of such pillars. Such writing is still there and is visible to a naked eye. He also exhibited

Ex.A3 photograph showing the parking area. Subsequently, PW.1 made enquiries and learnt that the changes were illegally made by 10 defendants 1 and 2. The first defendant is the one of the owners of the Flat No.510 and the second defendant is the father of the owner of Flat No.509. The parking area for them is originally provided on the rear side of the apartment complex. The parking area originally provided for the use of occupants of Flat No.107 is on the front side and that with a view to occupy the said parking place, they have altered the flat numbers and in that process the parking place number allotted to the plaintiffs is changed. When questioned, the defendants 1 and 2 informed the father of the second plaintiff that it was at the instance of the builder i.e., defendant No.3 such numbers were changed. But, on enquiry PW.1 learnt that the 3rd defendant did not make any changes and that it is only defendants 1 and 2 that are responsible for such changes. The 4th defendant is the owner of the Flat No.108 and the said flat is under the occupation of a tenant, who is no other than the defendant No.5 herein. But on enquiry, the 5th defendant informed the father of the second plaintiff that the car of such tenant is being parked in the parking place to which no number is allotted originally. PW.1 requested the defendants 1 and 2 to change the Flat numbers painted in various beams of the parking places, illegally and unauthorizedly altered by them. But, they refused to do so and their intention to encroach the plaintiff’s parking place.

11.It is not in dispute that 150sq.ft car and scooter parking was sold to the plaintiffs under Ex.A1. The dispute is with regard to the subsequent change of parking place by the defendants. The first defendant is the president and the 2nd defendant is the secretary of 6th defendant association i.e., “Sai Karthik Park View Apartment

Owners Association” which was registered under A.P. Societies

Registration Act, 2001 vide registration No.380/2015. Ex.B1 is the 11 certified copy of registration. By the date of purchase of Flat No.107 either by the plaintiffs or by their vendor the said “Sai Karthik Park

View Apartment Owners Association” is not in existence. According to DW.1, the builder/3rd defendant neither specified nor allotted any place towards parking area to the vendor of the plaintiffs at any point of time. Whatever the numbers written on the pillars are all temporary one and those numbers were written by the Builder/3rd defendant for his understanding. On 21.12.2015 they convened emergency meeting and discussed some important issues related to the apartment and car parking is one of them. Ex.B2 is the Extract of

Minutes Book being maintained by the Sai Karthik Park View

Apartment Owners Welfare Association, Vijayawada. When the issues are brought into the notice of the builder on 23.01.2016, the builder promised to allot the parking areas to their apartment in such a manner and he erased the temporary numbers and painted new numbers according to his plan and adjusted car and two wheeler vehicles parking area for all flat owners and also gave one plan signed by him to the association on 06.02.2016. The said plan was brought into the knowledge of all flat owners and everyone agreed and none has objected for the said plan given by the builder.

The staff of the builder/3rd defendant took nearly three days time to paint the numbers of car parking as per the given plan.

12.DW.1 admitted that car parking slot allotted to the plaintiff is adjacent to the road in the apartment. He denied the suggestion in order to change the car parking slots himself and the second defendant convened a meeting of the association taking advantage of their positions as president and secretary. They have convened meeting for changing of car parking slots for all the flat owners of the apartment. He admitted that he has not mentioned in 12 Ex.B2 minutes book regarding the convening meeting of the association regarding change of car parking slots of all the flat owners of the apartment. He further admitted that they being the president and secretary got no power to change the car parking slots allotted to the respective flat owners. He pleaded ignorance that after the flat is sold by the builder, he has no power to change the car parking slots allotted to the respective flat owners. He stated that he purchased his flat without identifying the car slot pertaining to him by the builder. He stated that the builder is made inscription for the car parking slot allotted to the plaintiffs as 107 which was temporarily allotted to them. He stated that there is no document from the builder to the flat owners that they were allotted car parking slots initially for temporary purpose. The title deed pertaining to his flat does not contain that the car parking slot will be allotted to him after few months from the date of execution of the same temporarily. There is no inscription on the car parking slot allotted to the plaintiffs as temporary. He stated that he is not aware whether there is any recital in the title deed of the plaintiffs or their predecessors in title regarding the extent of car parking slot allotted to them is 150sq.ft and in the measurement of the temporary allotment of car parking slot is 150sq.ft. He pleaded ignorance that in which of the sale deeds of the flat owners it is mentioned regarding the car parking slot bearing No.107. He stated that car parking slot bearing No.510 which was temporarily allotted to him is not sufficient for parking his car. He stated that if the cars of 506 and 507 car parking slots were parked with cars, his car is also parked in his car parking slot of 510, there will not be any vehicular movement regarding his car and therefore the meeting is convened urgently to discuss about the car parking slots and its movements. He denied 13 the suggestion that under the guise of free movement of his car the temporary car slot allotted to him has been completely changed from the rear side to the road side. He is not parking his car in the temporary car slot allotted to him and his car parking slot has been changed from the rear side to the road margin of the apartment. The car parking slot of D2 has also been changed to the road side which is adjacent to his car parking slot. He denied the suggestion that whether the car parking slot which is having inscription of 107 is only 80 sq.ft and they have not measured the same. He also pleaded ignorance whether the car of the plaintiffs cannot be parked in the 80 sq.ft car parking slot and whether the said 80 sq.ft is used by the flat owners for parking their scooters. He stated that when PW.1 questioned them about change of his car parking slot they replied that it is done by the builder.

13.From the evidence of DW.1, it is categorically proved that the plaintiffs are in possession and enjoyment of the car parking with flat No.107 and subsequently 107 which is adjacent to the road in the apartment was allotted by the 3rd defendant to the plaintiffs.

The car parkings allotted to the first defendant and second defendant were on the rare side and subsequently DW.1 car parking slot has been changed from rare side to the road side of the apartment and the car parking slot of the second defendant has been changed to the road side which is adjacent to his car parking slot and there is no document from the builder to the Flat owners that they were allotted parking slots initially for temporary purpose and so also there is no inscription on the car parking slot allotted to the plaintiffs as temporary and so also it is not recited in the document of the plaintiffs that either in original of Ex.A1 or original 14 of Ex.A2 that the car parking slot was allotted temporarily to the plaintiffs and subsequently permanent slots will be allotted.

14.Builder of “Sai Karthik Park View Apartment Owners

Association” is examined as DW.3 and it is elicited from his evidence that by the end of 2015 he sold all the 50 flats and he did not retain any common area in the apartment complex and the entire common area is conveyed to the 50 flat owners and so also he has conveyed the entire parking area to the 50 flat owners. He stated that he has no knowledge regarding the old and temporary random numbers painted on the beams of parking area mentioned in his evidence affidavit. He also stated that there is no document between himself and the individual flat owners in the form of an agreement that he is retaining right to change the old parking area and allot new parking area and common areas and the flat owners should abide by that said document. There is no document regarding the temporary allotment of parking area between himself and flat owners. He admitted that after selling away of the 50 flats and registering the same he has no right to allot or alter any parking or common area in view of the apartment act and as per the contract between himself and flat owners. He has not filed the said notice received on 23.12.2015 regarding the meeting from the apartment association on 27.12.2015 and he only signed on the resolution of the meeting later. He admitted that either prior or later to the notice of the meeting on 23.12.2015 he did not visit the apartment and he was not physically present at the time of painting the flat numbers. He has not conducted any meeting with the flat owners regarding changing of temporary numbers. He admitted that he has no knowledge that out of the 50 flats sold to the flat owners after changing the temporary numbers all the 45 parking areas remained 15 same and only 4 or 5 parking numbers were changed. It is obvious to note here that the 3rd defendant sold all the flats in “Sai Karthik

Park View Apartment Owners Association, Vijayawada” and after selling all the flats and registered the same to the flat owners, the 3rd defendant have no right to allot or alter any parking or common area. Though the association has conducted meeting with regard to the issues in the “Sai Karthik Park View Apartment Owners

Association” including car parking problem, they have not passed any resolution with regard to the change of car parking slots. Even the association cannot change the allotted slots as per its whims and fancies, because the car and scooter parking slot was allotted by the builder and the possession was also handed over to the plaintiffs by their vendor. On the other hand, there is no iota of evidence brought on record to show that those slots were allotted temporarily by reserving right to change the slots either by the association or by the builder. On the other hand, who is the joint secretary of “Sai

Karthik Park View Apartment Owners Association” is also examined as DW.2 and he also stated that there is no temporary allotment of car parking area in that apartment in any point of time and he pleaded ignorance when the builder of the apartment has made inscription in the car parking area about the flat numbers temporarily and whether 5 car parking slots temporarily allotted has been changed to permanent slots. He further stated that there is no resolution in the meeting conducted on 27.12.2015 regarding changing of car parking slots from one place to another and there are no exchange of letters between the association and the builder regarding the allotment of car parking slots subsequent to the meeting held on 27.12.2015.

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15.Moreover, it is elicited from the evidence of DW.1 that the flat owner of 109 has lodged a report before the police against 2nd defendant for allotment of car parking slot pertaining to him to 2nd defendant. Thereafter, they have gone to the police station and they executed a letter of undertaking that the second defendant will not park his car in car parking slot No.109 and since then the flat owner of 109 is parking his car in car parking slot of 109 only. DW.2 signed on the said undertaking letter. DW.2 also stated that the flat owner of 109 has lodged a complaint before the police stating that his car parking area has been allotted to flat No.509 i.e., the secretary of association and the police visited the apartment and told that no one should occupy the other car parking area and accordingly the flat owner of the 509 has been reallocated his old car parking area by leaving the new car parking area to the flat owner of 109. He also admitted that a copy regarding agreement between parties for car parking of the disputed areas for which he is an attestor and i.e., Ex.A4. The first and second defendants being president and secretary of the 6th defendant in order to change their car parking areas as per their convenience they have changed the car parking slots and has created defence that the 3rd defendant has changed the car parking slots numbers as per his plan. As I already stated supra, either the defendants 1, 2 and 6 or the 3rd defendant have no right to change the car parking slots which were already allotted to the plaintiffs and which is in the peaceful possession and enjoyment of the plaintiffs. The defendants contended that the plaintiffs are not paying maintenance to the assosiation and in spite of their notice under Ex.B3. It is obvious to note here that payment of maintenance is no way concerned with the present cause of action and it is purely between association and the plaintiffs and it is 17 not a ground to support the case of the defendants. Ex.B3 is marked subject to objection. Ex.B3 is no way concerned with the suit and hence, the objection raised by the plaintiffs is sustained. It is urged by the defendants that the plaint plan is not true and correct and it is drawn for the purpose of the suit only. The first defendant himself admitted that the slot number 107 i.e., car and scooter parking allotted to the plaintiffs is adjacent to the road. Therefore, this court finds no force in the contention of the defendants. The evidence of

PWs:1 to 3 coupled with Ex.A1 to A3 categorically proved that the plaintiffs are in peaceful possession and enjoyment of the plaint schedule property as on the date of filing of the suit and the defendants 1, 2 and 6 are interfering with the peaceful possession and enjoyment of the parking area and obstructing the use of occupants of flat no.107 in the said parking area. On the other hand, the defendants did not approach the court with clean hands and they failed to establish that the defendant no.3 allotted the car and scooter parking to flat no.107 temporarily and it was changed by him permanently as per the plan. On perusal of Ex.A2, clause “8”

Schedule-D categorically mentioned that “The apartment owner should use only one car parking in the space marked by the builder in stilt floor shown for parking”. It is pertinent to note here that it is not recited about temporary allotment of car parking in Ex.A2 and so also in Ex.A1.

16.It is the contention of the defendants that PW.2 did not occupy the property and there is no question of using of car parking area. PW.2 evidence discloses that he has undertaken the internal decoration works for a period of 5 to 6 months and during that period he used the parking space provided to flat no.107. He also stated that there is numbering for car parking areas and the plaint 18 schedule property was allotted for him for car parking. Though, PW.2 is examined in cross at length, nothing tangible is elicited to show that he did not use the car parking area. However, it is apparent from his evidence that there is numbering for car parking areas and the plaint schedule property was allotted for him for car parking area and hence, this court finds no merits in the contention of the defendants. In view of the aforesaid reasons, it can be safely concluded that the plaintiffs categorically discharged their burden and accordingly, they are entitled for the relief of permanent injunction as prayed for. Hence, this issue is answered in favour of the plaintiffs and against the defendants.

ISSUE No.2:-

17.In the result, the suit is decreed with costs by granting permanent injunction restraining the defendant 1, 2 and 6 from interfering with the plaintiff's peaceful possession and enjoyment over the plaint schedule property i.e., parking area either by parking the vehicles of others or obstructing the use and occupation of the occupants of Flat.No.107 in the said parking area.

Dictated to the Stenographer of this court, corrected and

pronounced by me in open Court, this the 18th day of January, 2018.

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC/I ADDITIONAL JUNIOR CIVIL JUDGE,

VIJAYAWADA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF

P.W-1: Movva Janardhana Swamy. PW-2: Kothapalli Nagaraju. PW-3: Komatla Ravi Reddy.

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DEFENDANT

D.W-1: Amrutham Satyanarayana. D.W-2: Tirumalasetti Suresh Kumar. D.W-3: Ramisetti Veera Swamy.

DOCUMENTS MARKED FOR

PLAINTIFF

Ex.A1 : Registration extract of sale deed vide Doc.No.4149/2015 of SRO, Gunadala executed by Kothapalli Nagaraju, S/o.Subbarayudu in favour of the plaintiffs regarding the plaint schedule property,

dated:29.07.2015.

Ex.A2: Registration extract of sale deed vide doc.No.7213/2015 of SRO, Gunadala executed by Ramisetty Asha Rani and her husband Ramisetty Veera Swamy in favour of Kothapalli Nagaraju, dated 15.09.2014. Ex.A3: Two photographs along with C.D. showing parking area. Ex.A4: Photostat copy of understanding between Vadde Maheswara Rao (D2) and Amada lakshmaiah regarding the car parking areas and D.W.2 is an attester for the same.

DEFENDANT

Ex.B1: Certified copy of certificate of Registration of Sai Karthik Park View Apartments obtained from Mee Seva issued by Registrar of Societies, Vijayawada, dated 21.12.2015. Ex.B2: Extract of Minutes Book being maintained by the Sai Karthik Park View Apartment Owners Welfare Association, Vijayawada,.

Dated 27.12.2015.

Ex.B3: Notice given by the Sai Karthik Park View Apartment Owners Welfare Association, Vijayawada, to the plaintiff, dated 07.12.2016.

P.J.C.J., VJA.

FAC/I AJCJ/VJA.

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IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE,

VIJAYAWADA.

Present: Smt.M.KUMUDINI,

Principal Junior Civil Judge,

FAC/I Additional Junior Civil Judge, Vijayawada.

Monday, the 08th day of January, 2018.

Original.Suit.No.253/2017

Between:

G.Sathwika, D/o.G.Bujji Babu, Hindu, aged about 11 years, Residing at D.No.17-10-07, Punuri Street, Baptist Nagar, Vijayawada-3 rep by natural guardian father by name G.Bujji Babu. ... Plaintif

A N D

M/s.Mini Enclave, rep by it’s Managing Director by name G.Soma

Sekhar Reddy, S/o.Basivi Reddy, Hindu, aged about 49 years,

O/o.29-1040, 1st Floor, Tadikonda Towers, Narasimha Rao Naidu

Street, Surya Rao pet, Vijayawada. Residing at Plot No.304, Royal

Nivas, Vikasnagar, Near Dilsuk Nagar Driving School, Hyderabad,

Telangana.

...Defendant

This suit is coming before me for final hearing on 17.11.2017 in the presence of Sri P. Y .Kiran Kumar, Advocate for plaintif and of Sri M.K.Deenadayal, Advocate for defendant and upon perusing the plaint, written statement and other connected material papers on record and having stood over for consideration till this day this Court delivered the following:-

J U D G M E N T

1.The plaintif filed this suit seeking the relief of specific performance of contact of sale dt:02.06.2014 directing the defendant to execute a regular registered sale deed in favour of the plaintif in respect of the plaint schedule property after receiving the balance sale consideration and if the defendant 2 fails to register the said sale deed the court may be pleased to register the same in favour of the plaintif at the costs of the plaintif and to put the plaintif in possession of the plaint schedule property and for costs of the suit.

2.The brief averments of the plaint are as follows:-

The defendant is the owner of the M/s.Mini Enclave a Real

Estate company running office at Suryaraopet, Vijayawada and made venture at Navepothavarm Village, Ibrahimpatnam

Mandal, Kethana Konda Grama Panchayat, Krishna District. The father of the plaintif is working as a journalist and he entered into an agreement with the defendant to purchase a plot

No.26(p) in his daughter’s name i.e. G.Sathvika, plaintif herein and agreed to pay by monthly installments as per the agreement mentioned in monthly book and the father of the plaintif is paid an amount of Rs.1,83,000/- from 02.06.2014 to 05.11.2016. The father of the plaintif has been repeatedly requesting the defendant and through his manager by name B.Satya Prasad since several days to perform his part of contract of the sale and the defendant has been postponing the same in spite of readiness and willingness expressed by the plaintif. The plaintif kept deposit an amount of Rs.1,00,000/- in his bank account

Vijayawada along with registration charges. At the time of transaction the friends of the plaintif’s father i.e., Ch.Srinivasa

Rao, Miriyala China Ramayya, M.Suresh were present and they witnessed the same. The plaintif having suspected some fraudulent intention of defendant, he gave a police report before the Bhavanipuram Police and the same is referred as Civil in 3 nature. He also gave report to the sub-registrar that not to entertain the defendant to register the said plot no.26(P) to third parties and it was returned as to approach the court of law. On that the plaintif issued notice on 07.03.2017 to the defendant to his residence and camp office and the defendant received the residence address notice and another notice is returned as no address in this address. Hence, the suit.

3.The defendant filed written statement by denying the averments of the plaint. The brief averments of the written statement are as follows:

The defendant used to reside at Hyderabad and managing the afairs of the office through his manager by name B.Satya

Prasad. The defendant at the instance of his manager allowed the father of the plaintif by name G.Bujji Babu to pay the sale consideration in installments as per the terms and conditions mentioned in the monthly book. As per the terms and conditions of the agreement the plaintif ought to pay Rs.10,000/- for enrollment, Rs.20,000/- for the plot allotment, Rs.50,000/- at the time of agreement and Rs.4,000/- X 24 = Rs.96,000/- towards installments and Rs.10,000/- X 5 = Rs.50,000/- towards special installments and also Rs.54,000/- at the time of registration. The father of the plaintif never acted as per the terms and conditions of the agreement and wantonly violated the terms and conditions and he is very irregular in payment of installments. The defendant questioned the irregularity of the plaintif’s father through B.Satya Prasad and also informed that it is difficult to provide plot. He expressed his difficulty to pay the installments as per the agreement. Lastly having no alternative 4 the defendant informed to him about the cancellation of the agreement and requested the father of the plaintif to receive the amount of Rs.1,20,000/- as 20% of value has to be paid to the middle man. The father of the plaintif approached the defendant and his manager and requested that he will sustain loss if he receive the amount and requested the defendant and his manager to allot the plot in the next venture and the defendant accepted for it. Contra to that the plaintif father filed this suit. The plaintifs pass book on which the plaintif’s is relying clearly establishing the plaintif’s violation of the terms and conditions of the agreement. As per the terms and conditions of the agreement and on the consent of the father of the plaintif, the plot was alloted to somebody already long back and the same was already registered to third party to whom it was allotted to the notice of the father of the plaintif. The said fact was noticed to the father of the plaintif by way of reply notice dated 14.03.2017. The plaintif or her father was not ready and willing to perform their part of contract. The father of the plaintif was in financial crisis and was previously considered by this defendant with sympathy in registering the plot No.34B on 04.05.2009. As an after thought, the plaintif’s father deposited Rs.1,00,000/- in his bank account and they were never ready and willing to perform their part of contract and even

before police the father of the plaintif expressed his inability

with regard to the sale consideration and prayed the court to dismiss the suit with costs.

4.Basing on the pleadings, the following issues are settled for trial.

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1. Whether the plaintiff is entitled for Specific Performance of contract directing the defendant to execute a regular registered sale in favour of the plaintiff in respect of plaint schedule property and for possession of the same as prayed?

2. Whether the plaintiff has failed to perform his part of contract as alleged by defendant?

3. Whether the plaint schedule property was sold to 3 rd party with the consent of the plaintiff as contended by the defendant?

4. To what relief?

5.At the event of trial, the father of the plaintif G.Bujji Babu is examined as PW.1. M.Suresh and Annavarapu Nageswara Rao are examined as PW.2 and PW.3. Ex.A1 to A11 are marked. The

Managing Director of the defendant Gudibandi Somesekhara

Reddy is examined as DW.1 and the Manager of the defendant firm Bollapalli Satya Prasad is examined as DW.2. No documents are marked on behalf of the defendants.

6.Learned counsel for the plaintif argued that the plaintif is ready and willing to perform his part of contract but the defendant did not come forward to execute regular registered sale deed pertaining to the plaint schedule property in favour of the plaintif in spite of notice issued under Ex.A6 and sought the court to decree the suit. Per contra, the learned counsel for the defendant argued that the father of the plaintif or the plaintif was never ready and willing to perform their part of contract and the father of the plaintif violated the terms and conditions of the agreement and with his consent the plot was allotted to 3rd party and sought the court to dismiss the suit with costs.

7.Heard both sides. Perused the entire material on record

ISSUE Nos: 1 to 3 6

8.Since issues 1 to 3 are interrelated and for the sake of brevity and to avoid unnecessary repetition they are answered together. It is the burden of the plaintif to prove that he is ever ready and willing to perform his part of contract and the defendant failed to execute regular registered sale deed in his favour. To substantiate the same, the father of the plaintif himself is examined as PW.1 and he also examined PW’s. 2 and 3 on his behalf. PW.1 filed his chief affidavit by reiterating the contents of the plaint. According to PW.1, he entered into an agreement with the defendant to purchase the plaint schedule property in his daughter’s name i.e., plaintif herein by way of monthly installments. As per the agreement mentioned in monthly book i.e., Ex.A1, he paid an amount of Rs.1,83,000/- from 02.06.2014 to 05.11.2016. Ex.A2 are original bunch of 25 bills amounting to a total of Rs.1,83,000/-. He also filed copy of his Aadhar card i.e., Ex.A3. The defendant and his manager by name B.Satya Prasad did not perform their part of contract and has been postponing to do so in spite of readiness and willingness expressed by the plaintif. PW.1 also deposited an amount of Rs.1,00,000/- in his Axis Bank account, Vijayawada on 26.08.2016 along with registration charges. Ex.A10 is the attested copy of bank statement of plaintif’s father. He also issued notice on 07.03.2017 under Ex.A6 to the defendant and the same was received by the defendant under Ex.A8. The notice which was issued to the office of the defendant was returned under Ex.A7. He also presented report to Bhavanipuram police,

Vijayawada against the defendant, but the same was referred as civil in nature. Ex.A4 is the office copy of the complaint given to 7 SHO, Bhavanipuram Police Station, Vijayawada. He also addressed letter to the sub register Ibrahimpatnam to not to entertain the defendant to register the plaint schedule property to 3rd parties and the sub register Ibrahimpatnam issued reply under Ex.A5 to the father of the plaintif.

9.PW.2 is the friend of PW.1 and his testimony goes to show that he used to visit the office of the defendant along with PW.1 at the time of payment of installments and in spite of repeated requests made by the father of the plaintif, the defendant did not come forward to perform his part of contract and the manager postponed the same by saying that the Manging director will come this month or that month and at last the office of the defendant was closed and shifted the office to Gollapudi

Market Yard, Vijayawada-1 without intimation. PW.3 is running social organization in the name and style of DBPS and he used to solve the problems as a social worker and he is also a politician.

His testimony shows that he along with PW.1 went to the office of the Mini Enclave situated at Gollapudi Market Yard, Vijayawada in the month of February 2017 and requested the office authorities to register the plot in the name of plaintif, which was allotted previously. The manager stated that the managing director is coming by next month and he will perform the same, but he did not turn to register the same. Finally, on 18.02.2017 he talked personally with the managing director and requested to register the plot by receiving consideration, but he gave evasive reply by stating that the said plot was allotted to some others. On that PW.1 and himself went to the police station and 8 gave a report against the defendant and the said complaint was closed as it is civil nature.

10.PW.2 pleaded ignorance if there is any agreement between the plaintif and the defendant and he stated that it was never shown to him. He admitted that the plaintif has to perform his part of contract for its enforceability as per the agreement. He also pleaded ignorance that as per the understanding, the plaintif has to pay special installment and also follow the terms and conditions. He admitted that as per the terms if the parties failed to follow the terms and conditions and not paid the installments they are not entitled for the plot allotment. He admitted that the previous office of the defendant is a rented premises and it was shifted nearer to the next venture. PW.3 also admitted that for the purpose of plot registration, the party has to perform his part of contract as per the terms and conditions. He pleaded ignorance about the amount the plaintif has to pay to the defendant and amount required for the purpose of registration. On perusal of the evidence of PW.2 and 3, it only shows that they approached the office of the defendant along with PW.1 and requested to perform the defendant’s part of contract but of no use.

11.At first, the plaintif has to prove that her father has complied all the terms and conditions in Ex.A1 and he is ready and willing to perform his part of contract. The Managing

Director of the defendant is examined as DW.1 and the Manger of the defendant firm is examined as DW.2. According to them, there is an understanding between the plaintif and the defendant counsel that the plaintif ought to pay Rs.20,000/- for 9 allotment, Rs.50,000/- at the time of agreement, Rs.4,000/- X 24 = Rs.96,000/- towards installments and Rs.10,000/-X5 =

Rs.50,000/- towards special installments and he has to pay

Rs.54,000/- at the time of registration towards the balance of the sale consideration and the plaintif failed to pay the said amounts. They further stated that the plaintif paid the installments to the Manager of the firm, but with a condition that if he failed to fulfill the terms and conditions he may be permitted to take a plot in the next venture due to his failure and incapacity to pay the balance of sale consideration and the other installments as stated supra. At the instance of the plaintif’s father the plot was sold away to third parties long back and intentionally he issued Ex.A6 notice for which the defendant firm issued Ex.A9 reply with true facts.

12.PW.1 admitted that as per Ex.A1 both the parties have to abide to the terms and conditions of the agreement and he is relying on Ex.A1. He categorically admitted that for enrollment into the company as a member Rs.10,000/- is to be paid and for allotment Rs.20,000/- is to be paid and as per the agreement Rs.50,000/- is to be paid for the allotment of the plot.

He stated that he has not paid Rs.20,000/- for allotment and he denied the suggestion that only after the payment of Rs.50,000/- as per the terms of the agreement i.e., Ex.A1 one should enter into the agreement and since he failed to pay the same there is no agreement between himself and the defendant. He also admitted that as per Ex.A1, Rs.10,000/- each for 5 installments is to be paid and he did not pay the same. On perusal of Ex.A1, the plaintif paid Rs.1,83,000/- in total starting from 02.06.2014 to 10 05.11.2016. In Ex.A1 “3(c)” clause categorically shows that for enrollment of Rs.10,000/- is to be paid, for allotment Rs.20,000/-, for agreement Rs.50,000/- and Rs.96,000/- is to be paid in 24 installments, Rs.50,000/- is to be paid in 5 installments and at the time of registration Rs.54,000/- in total Rs.2,80,000/- is to be paid. On perusal of Ex.A1 on 02.06.2014 the plaintif paid

Rs.10,000/- and he has not paid Rs.20,000/- and Rs.50,000/- for allotment and agreement and the amounts paid towards special installments is also not as per the terms and from 02.06.2014 to 05.11.2016 he paid Rs.1,83,000/- in total and it shows that he paid the said amount under 29 months. It clearly shows that the plaintif has not paid the amounts as per the terms and conditions mentioned in Ex.A1. It is the stand taken by the plaintif that he deposited Rs.1,00,000/- on 26.08.2016 into his bank account and it also shows his readiness and willingness to perform his part of contract. But, in cross examination PW.1 admitted that only on 26.08.2016 Rs.1,00,000/- was deposited and on other dates no such huge amount is reflected. He also admitted that on 27.08.2016 he paid only Rs.7,000/-. He denied the suggestion that though he was in arrears he paid only

Rs.7,000/- and for the purpose of setting up his defence he deposited Rs.1,00,000/- on 26.08.2016 and with drawn the same. PW.1 stated that to his knowledge he has to pay

Rs.1,10,000/- to the defendant and the registration charges would amount to Rs.40,000/- to Rs.50,000/- and for securing plot registration he has to get the amount of Rs.1,60,000/-. He denied the suggestion that since he got no such amount in 11 Ex.A10 he was not ready for the performance of his part of contract.

13.It is obvious to note here that PW.1 tried to impress upon the court that by 26.08.2016 there was Rs.1,00,000/- in his bank account and he is ready and willing to perform his part of contract but, his evidence shows that the said amount was deposited on 26.08.2016 for the purpose of setting up his case and he even did not get any amount of Rs.1,60,000/- for registration of the plot and as such it can be said that there are no merits in the contention of the plaintif that he is ready and willing to perform his part of contract. On one hand Ex.A1 categorically shows that he has violated the terms and conditions of Ex.A1 and on the other hand, he also failed to prove that he was ready and willing to perform his part of contract. The learned counsel for the defendant relied upon the decision reported in 1) AIR 2000 SUPREME COURT 860

Between Ram Awadh (dead) by L.Rs and others, Appellants v.Achhaibar Dubey and another, Respondents, Wherein it is held that “Specific performance may not be granted to plaintif who fails to aver and to prove readiness and willingness to perform his part of agreement. The said plea is available both to vendor and subsequent purchasers and even to legal representatives of subsequent purchasers.”

2) AIR 1993 SUPREME COURT 1742 between Chand Rani

(dead) by LR.s, Appelants V.Smt.Kamal Rani(dead) by

L.R’s. Respondents. It is held that “In the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the 12 contract the court may infer that it is to be performed in a reasonable time if the conditions are 1) from the express terms of the contract, 2) from the nature of the property and 3) from the surrounding circumstances, for example, the object of making the contract.”

3)AIR 1996 SUPREME COURT 116between

N.P.Thirugnanam (D) by L.Rs, Petitioners V.Dr.R.Jagan

Mohan Rao and others, Respondents, wherein it is held that “To adjudge whether the plaintif is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintif prior and subsequent to the filing of the suit along with other attending circumstances. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of contract.”

4) 1998(5) ALD 697(DB) between Sardar Amarjeet Singh

V.Nandu Bai and ors. Wherein it is held that “Mere averment in the plaint or pre-suit notice that he was at all material times ready and willing to perform his part of the contract is not sufficient. But such averment should be supported by satisfactory evidence. That is utterly lacking in this case. Though time may not be the essence in a contract of sale of immovable property, the performance of obligations cannot be postponed for an unreasonably long length of time unless there is a satisfactory explanation for such delay.”

14.The above decisions relied by the defendant are squarely applicable to the present facts and circumstances. In the instant case, in Ex.A1 the terms and conditions for making payment are 13 categorically recited and the plaintif did not acted as per the terms and conditions mentioned in Ex.A1. Moreover, the plaintif failed to prove that he is ever ready and willing to perform his part of contract. If the plaintif has performed his part of contract, then the defendant may register the plaint schedule property in favour of the plaintif. On the other hand, the defendant has sold the plaint schedule property to 3rd party.

According to DWs.1 and 2, the plaintif has consented for selling of the plaint schedule property to 3rd party and he also agreed for allotting plot in the next venture. In reply notice, the defendant stated about the sale of the plaint schedule property to the 3rd party and therefore, the contention of the plaintif that the defendant sell the plaint schedule property to the 3rd party after receipt of the notice has no force. PW.1 in his evidence stated that he came to know that the defendant intentionally cheated one person by name B.Naga Mounika and he purchased the same with lot of hope to built house and the defendant cheated him. He confronted Ex.A11 payment book and two receipts through DW.2, who is the manager of the defendant.

DW.1 admitted that the first installment of Rs.5,000/- was to be paid as per the terms and conditions and they allowed Rs.2,000/- as per the understanding with V.Naga Mounika and in the second installment they allowed the party to pay Rs.5,000/-. It is obvious to note here that there is no pleading with regard to Ex.A11 and the said V.Naga Mounika is no way concerned with the plaint schedule property and the plot number was also not mentioned in Ex.A11 and hence, this court declined to consider Ex.A11. Any amount of evidence without pleading cannot be considered. By 14 considering the reply notice in Ex.A9, it can be said that the defendant sold the plaint schedule property to 3rd party with the notice of the plaintif.

15.As stated supra, Ex.A1 categorically shows that the plaintif has violated the terms and conditions of Ex.A1 and on the other hand, he also failed to prove that he is ready and willing to perform his part of contract. Hence, it can be said that the plaintif failed to discharge her burden and accordingly, she is not entitled for the relief of Specific Performance. Hence, these issues are answered against the plaintif and in favour of the defendant.

ISSUE NO.4 :-

16.In the result, the suit is dismissed. Both parties do bear their own costs.

Dictated to the Personal Assistant, transcribed by her,

corrected and pronounced by me in open Court, this the 08th day of January, 2018.

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC/I ADDITIONAL JUNIOR CIVIL JUDGE,

VIJAYAWADA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF

P.W.1 : G.Bujji babu.

PW.2: Medikonda Suresh.

PW.3 :Annavarapu Nageswara Rao.

DEFENDANT

D.W.1 : Gudibandi Somesekhara Reddy.

DW.2: Bollapalli Satya Prasad.

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DOCUMENTS MARKED FOR

PLAINTIFF

Ex.A1 : Original copy of the installments book issued by the defendant, dated 02.06.2014.

Ex.A2: Original bunch of bills No.25 amounting to a total of

Rs.1,83,000/-.

Ex.A3: Copy of Aadhar card compared with original and returned to the plaintif, dated 06.04.2012.

Ex.A4 : Original office copy of the written complaint given to the

SHO of Bhavanipuram Police Station, Vijayawada, dated 27.02.2017.

Ex.A5 : Original reply letter from Sub-registrar, Ibrahimpatnam pertaining to plaint schedule property, dated 22.02.2017.

Ex.A6 : Office copy of the legal notice got issued on behalf of the plaintif to the defendant, dated 07.03.2017.

Ex.A7 : Returned Regd.Cover by the defendant for Ex.A6, dated 09.03.2017.

Ex.A8: Postal acknowledgment by the defendant for Ex.A6, dated 09.03.2017.

Ex.A9 : Reply notice by the defendant for Ex.A6, dated 14.03.2017.

Ex.A10 : Attested copy of Bank Statement of plaintif’s father compared with original and returned to the plaintif.

Ex.A11 : payment book and 2 receipts.

DEFENDANT

Nil-

P.J.C.J., VJA.

FAC/IAJCJ,VJA.

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IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE,

VIJAYAWADA.

Present: Smt.M.KUMUDINI,

Principal Junior Civil Judge,

FAC/I Additional Junior Civil Judge, Vijayawada.

Wednesday, this the 24th day of January, 2018.

O.S.No.1160/2016

Between:

Pavuluri Chittemma, W/o.Devendra Rao, Hindu, aged about 72 years, R/o.D.No.2-116, Vijayawada Rural Mandal, Krishna District. ...Plaintif A N D

1. Koppula Ayyanna, S/o.Prakasa Rao, Hindu, aged about 55 years, R/o.Vepachettu Centre, Kothuru Tadepalli Village, Vijayawada Rural Mandal, Krishna District.

2. Koppula Ganapathi, S/o.Prakasa Rao, Hindu, aged about 53 years, R/o.Vepachettu Centre, Kothuru Tadepalli Village, Vijayawada Rural Mandal, Krishna District.

3. Koppula Ravi, S/o.Prakasa Rao, Hindu,aged about 45 years, R/o.Vepachettu Centre, Kothuru Tadepalli Village, Vijayawada Rural Mandal, Krishna District.

... Defendants

This suit is coming before me on 12.12.2017 in the presence of Sri B.Karunendra Rao, Advocate for plaintif and of Sri.Venkat Rao.Madala, Advocate for Defendants and upon perusing the plaint and other connected material papers on record and having stood over for consideration till this day this Court delivered the following:-

J U D G M E N T

1.This is a suit filed by the Plaintif against the defendants for permanent injunction restraining the defendants and their men from ever interfering with plaintif’s peaceful possession and enjoyment of the suit schedule property by the plaintif and for costs of the suit.

2.The brief averments of the plaint are as follows:-

The plaintifs are the absolute owner of the plaint schedule property and she has been in peaceful possession and enjoyment of the said property with absolute rights. The original pattadar pass books and title deed pass books of the plaint schedule property are 2 lying with the defendants. The plaintif leased out the plaint schedule property to their mother Koppula Ramulamma, W/o. Prakasa Rao long back and she paid maktha to the plaintif regularly without fail since the date of its lease. While the matter stood thus, the plaintif came to know that the mother of the defendants died intestate leaving behind the defendants as her legal heirs and after her demise, the defendants have been cultivating the said land without knowledge and consent of the plaintif. After knowing the said fact, the plaintif demanded the defendants to hand over the possession of her property to the plaintif. But, the defendants did not heed the requests of the plaintif and they are cultivating the said land without having any valid right. The plaintif got issued registered legal demand notice dated 14.09.2016 to the defendants demanding them to vacate and deliver the vacant possession of the plaint schedule property immediately from the date of receipt of the notice. The defendants acknowledged the said notice and issued a reply notice with false and frivolous allegations. When the plaintif questioned the defendants not to cultivate the land, the defendants abused the plaintif in filthy language and beat the plaintif indiscriminately and the same was pleaded by Chappidi Rama Rao, Chappidi Kutumba

Rao, Chappidi Bhaskara Rao, Chappidi Gopalam, Chirupalli Srinivasa

Rao, Jallabattula Srikanth and Pavuluri Anil Kumar. The defendants went away by threatening the plaintif with dire consequences. The plaintif reported the matter to II Town Police Station. But, the police did not register the case on the pretext that it is of civil nature.

Hence, the suit.

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3.Defendant 1 to 3 filed written statement by denying the averments of the plaint. The brief averments of the written statement are as follows:

There is no lessee and lessor relationship between the defendants and plaintif. Either these defendants or their mother are not the lessee’s of the plaintif. These defendants are the absolute owner of the plaint schedule property and they are in peaceful possession and enjoyment of the same and these defendants are cultivating plaint schedule property since 16 years with absolute rights and title. As such there is no possibility of letting out the plaint schedule property to these defendants or to their mother. The father of the defendants by name Koppula Prakasa Rao purchased the plaint schedule property from the plaintif and her sons Pavuluri

Jeeva Ratnam, Pavuluri Nageswara Rao by paying valuable sale consideration and they jointly executed a registered sale deed in favour of the father of the defendants on 26.05.2000 and delivered the vacant possession of the plaint schedule property. At the time of purchase, the plaint schedule property was dry and vacant land and the defendants father developed the same and converted the same into Mango field. Since the date of purchase, the father of the defendants was in peaceful possession and enjoyment of the same and cultivated the same with absolute rights and title till his demise.

During the lifetime of Koppula Prakash Rao, he executed a registered will by giving life enjoyment to her wife Ramulamma and absolute rights to the defendants. After the death of father and mother of the defendants, these defendants are in joint possession and enjoyment of the plaint schedule property and they are cultivating the same.

The plaintif has no right, title or possession towards the plaint 4 schedule property and the plaintif with active collusion with her son

Pavuluri Nageswara Rao created a false story in order to grab the schedule property. The cause of action was created only to get injunction order and no incident took place and there is no iota of truth in the pleading of the plaintif. Hence, prayed the court to dismiss the suit with exemplary costs.

4.Basing on the pleadings, the following issues are settled for trial by my learned predecessor:-

1. Whether the plaintiffs are in lawful possession and

enjoyment over the plaint schedule property as on the

date of the filing of the suit?

2. Whether the plaintiffs are entitled for a decree of

permanent injunction against the defendants as prayed for?

3. To what relief?

5.At the event of trial, the plaintif is examined as PW.1. Chappidi

Bhaskara Rao and Pavuluri Anil Babu are examined as PWs.2 and

PW.3. Exhibits A1 to A5 are marked. The first defendant is examined as DW.1 and Exhibits B1 and B2 are marked.

6.Learned counsel for the plaintif argued that the plaintif is the absolute owner of the plaint schedule property and she leased out the plaint schedule property to mother of the defendants and after her demise without the consent of the plaintif the defendants are cultivating the plaint schedule property without having any legal right and sought the court to decree the suit. Per contra, the learned counsel for the defendants argued that the father of the defendants purchased the plaint schedule property from the plaintif and her son under registered sale deed and since then he is enjoying the said property with absolute right and he executed will in favour of the defendants by giving life enjoyment to his wife Ramulamma and 5 after the demise of the parents of the defendants they became the absolute owners and they are in peaceful possession and enjoyment of the plaint schedule property and prayed the court to dismiss the suit with costs.

7.Heard both sides. Perused the material on record.

ISSUE No.1:-

8. In a suit for Permanent Injunction, the burden mainly lies on the plaintif to prove that she is in peaceful possession and enjoyment of the plaint schedule property as on the date of filing of the suit and the defendants interfered with her possession. To substantiate the same, the plaintif is examined as PW.1 and she also examined PW.2 and PW.3 on her behalf. She filed her chief affidavit by reiterating the contents of the plaint. According to PW.1, she is the absolute owner of the plaint schedule property and she leased out the property to Koppula Ramulamma, who is the mother of the defendants long back and she paid maktha to PW.1 regularly without fail and after the demise of the said Ramulamma, the defendants are cultivating the said land without her knowledge and consent. She demanded the defendants to handover the possession of the property but, they did not heed her requests and they are cultivating the land without having any valid right. She also issued legal notice to the defendants under Ex.A4 and the defendants issued reply under Ex.A5 to the plaintif. Ex.A1 is the certified copy of Adangal Pahani for fasli No.1426. Ex.A2 is the certified copy of

ROR dated 28.10.2016. When she questioned the defendants not to cultivate the land they threaten her and also abused her in filthy language and bet her indiscriminately and with the interference of

Pw.2, Pw.3, Chappidi Rama Rao, Chappidi Gopalam, Chirupalli 6 Srinivasa Rao and Jallabattula Srikanth they went away by threatening PW.1 with dire consequences. On that she rushed to II

Town Police Station and reported the matter to the police, but they did not register the case as it is of civil nature.

9.According to PW.2 and PW.3, they were present when the defendants abused, threaten and bet PW.1 indiscriminately when

PW.1 questioned the defendants not to cultivate the land and about their high handed acts. But, PW.2 stated in his cross examination that his chief affidavit was not prepared as per his instructions. He does not know the contents of his chief affidavit and so also the purpose for which the present suit is filed. More over, he stated that at the instance of the plaintif he came to give evidence. He pleaded ignorance regarding original pattadhar pass book, title deeds of the plaint schedule property that are lying with the defendants and so also about the payment of Maktha to the plaintif by the mother of the defendants K.Ramulamma. PW.3 also stated that he does not know the contents of the chief affidavit filed before the court and he stated that he went to the plaint schedule property 10 days back. He failed to say the boundaries of the plaint schedule property. He pleaded ignorance whether the defendants are cultivating the plaint schedule property and the plaintif in the year 2000 itself got registered the plaint schedule property in the name of father of the defendants i.e., K.Prakasha Rao and the sons of the plaintif also signed the same and delivered the said property. He further stated that he did not know during the lifetime of the defendants father, he was in possession and enjoyment of the plaint schedule property with absolute rights and after his demise his sons are in possession and enjoyment of the plaint schedule property. He failed to say 7 whether the plaint schedule property is cultivated by the defendants in this year and also stated that he does not know personally regarding disputes between defendant and the plaintif pertaining to the plaint schedule property. Learned counsel for the defendant elicited that PW.2 and PW.3 does not know anything about this case and they were not present at the time of alleged threaten and abusing of plaintif by the defendants.

10.It is not in dispute that the defendants are cultivating the plaint schedule property. The core contention of the plaintif is that she leased out the plaint schedule property to the mother of the defendants. But, the plaintif has not filed any document before the court to show that the plaint schedule property was leased out to mother of the defendants and she paid maktha to her. As per the pleadings original pattadhar pass book, title deed pass book of the plaint schedule property are lying with the defendants. The original pattadhar pass book and title deeds books will not be handed over to lessee and the reason for lying the said original pattadhar pass book and title deed book pertaining to the plaint schedule property to the defendants is not mentioned by the plaintif. But, in cross examination she stated that a new version that she lost the original pattadhar pass books pertaining to the plaint schedule property which is quite inconsistent to her pleadings. Without any evidence on record, this court cannot conclude that there is lease between the plaintif and K.Ramulamma and there is relationship of landlord and tenant between them.

11.According to defendants, their father purchased the plaint schedule property from the plaintif and her sons under original of

Ex.B1 and they jointly executed the said document and handed over 8 the possession of the plaint schedule property to their father

K.Prakasha Rao. Moreover, the first defendant also attested Ex.B1 and his signature in Ex.B1 was confronted i.e., Ex.B2. Learned counsel for the plaintif submitted that the plaint schedule property is assigned land and it cannot be registered and the source of title is also not mentioned in Ex.B1. On perusal of Ex.B1, it is clearly recited that it is the ancestral property of the husband of the plaintif.

Therefore, this court find no merits in the contention of the plaintif.

The plaintif also filed the certified copies of Ex.A1 to A3 i.e., Adangal pahani, ROR and submitted the title deed to show that in revenue records the name of the plaintif is mutated and the defendants are no way concerned with the plaint schedule property. It is obvious to note here that Exs.A1 to A3 does not create any right over the plaint schedule property and on the other hand, DW.1 stated that they do not mutated their name in revenue records. PW.1 admitted that the defendants have cut mangoes in the year 2017 pertaining to the plaint schedule property. PW.1 is not disputing the possession of the defendants over the plaint schedule property and she is contending that she leased out the property to Ramulamma. But, she failed to substantiate the same and on the other hand, by marking Ex.B1 the defendants categorically proved that K.Prakasha Rao purchased the plaint schedule property from the plaintif and her sons under Ex.B1 and since then they are in peaceful possession and enjoyment of the plaint schedule property with absolute rights. Therefore, it can be said that the plaintif failed to discharge her burden that she is in lawful possession and enjoyment of the plaint schedule property as on the date of filing of the suit and the defendants interfered with 9 the same. Accordingly, this issue is answered in favour of the defendants and against the plaintif.

ISSUE No.2:-

12.In view of my findings in issue No.1, it can be said that the plaintif is not entitled for decree of permanent injunction against the defendants as prayed for. Hence, this issue is answered in favour of the defendants and against the plaintif.

ISSUE No.3:

13.In the result, the suit is dismissed. Both parties do bear their own costs.

Dictated to the Stenographer of this court, corrected and

pronounced by me in open Court, this the 24th day of January, 2018.

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC/I ADDITIONAL JUNIOR CIVIL JUDGE,

VIJAYAWADA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF DEFENDANT

P.W-1: Pavuluri Chittemma. D.W.1: Koppula Ayyanna. P.W.2: Chappidi Bhaskara Rao. P.W.3: Pavuluri Anil Babu.

DOCUMENTS MARKED FOR

PLAINTIFF

Ex.A1 : Certified copy of Adangal Pahani issued by revenue authorities in favour of plaintif for fasli No.1426 obtained through Mee-seva issued by the Tahsildar, Vijayawada Rural, dated 28.10.2016. Ex.A2 : Certified copy of ROR issued by revenue authorities in favour of plaintif obtained through Mee-Seva issued by Tahsildar, Vijayawada Rural, Dated 28.10.2016. Ex.A3: Certified copy of Adangal Pahani issued by revenue authorities in favour of plaintif for fasil No.1426 obtained through Mee-seva issued by the Tahsildar, Vijayawada Rural, dated 28.10.2016. Ex.A4: Office copy of legal notice issued by defendants 1 to 3, dated 14.09.2016.

10 Ex.A5: Reply notice got issued on behalf of the defendants to the plaintif counsel for Ex.A4, dated 29.09.2016.

DEFENDANT

Ex.B1: Certified copy of Registered Sale deed obtained through Mee- Seva executed by the plaintif and her sons in favour of Koppula Prakash Rao, dated 26.05.2000 Ex.B2: Signature in Ex.B1.

P.J.C.J., VJA.

FAC/I AJCJ/VJA.

1

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE,

VIJAYAWADA.

Present: Smt.M.KUMUDINI,

PRINCIPAL JUNIOR CIVIL JUDGE, VIJAYAWADA,

FAC/I ADDITIONAL JUNIOR CIVIL JUDGE, VIJAYAWADA.

Thursday, this the 01st day of February, 2018.

O.S.No.161/2017

Between:

Arja Giridhar Rao, S/o.Late Kutumba Rao, Hindu, aged about 61 years, Business and properties, R/o.Dr.No.54-15-1, Ring Road, Vijayawada-8. ...Plaintif A N D

Garlapati Naga Venkata Srinivasa Rao, S/o.Sambasiva Rao, Hindu, aged about 43 years, Business, R/o.Plot No.302, A Block, Potluri Residency-5, Commercial Tax Colony, Road No.2, Beside N.A.C.,

Kalyana Mandapam, Vijayawada-7.... Defendant

This suit is coming before me on 12.12.2017 for final hearing in the presence of Sri M.D.N.Nageswara Gupta, Advocate for plaintif and of Sri. R.Purushotham, Advocate for defendant and upon perusing the plaint, written statement and other connected material papers on record and having stood over for consideration till this day this Court delivered the following:-

J U D G M E N T

1.This is the suit filed by the plaintif against the defendant for recovery of an amount of Rs.2,58,670/- being the arrears of rent payable by the defendant to the plaintif by the time of vacating the plaintif’s premises i.e., upto 17.03.2016 with subsequent interest @ 24% p.a., from the suit till the date of realization and for costs of the suit.

2. The brief averments of the plaint are as follows:-

The plaintif is the absolute owner of the property consisting of

Ground and first floor situated at shop No.1 and 2, Door no.18-1-9, 2 Kedareswarapet, Vijayawada [herein after referred to as ‘plaint schedule property’]. The defendant was non residential tenant in ground and first floor for the purpose of manufacturing furniture and computer tables on an understanding to pay monthly rent of

Rs.24,000/- per month which is payable at the end of every tenancy month. During the defendant’s tenure as monthly tenant, he became a chronic defaulter in payment of monthly rents to the plaintif. During the said tenancy period, the defendant executed acceptance letter i.e., Oppudala Patram in Telugu in favour of plaintif on 29.02.2016. Wherein the defendant acknowledged the liability of the defendant towards the rents due by the defendant to the plaintif for a sum of Rs.1,86,000/- towards principal amount of rent upto 29.02.2016. The defendant vacated the tenanted premises and delivered the same to plaintif on 17.03.2016 without paying any amount of rent and promised to pay within short time. Thus, the defendant is liable to pay a sum of Rs.1,99,600/- towards principal amount of arrears of rent by the time of vacating his tenanted premises and delivered the same to the plaintif on 17.03.2016. The defendant is liable to pay interest at the rate of 24% p.a on the outstanding arrears of rents as per the agreement, trade, usage, custom and law. In spite of demands made by the plaintif, the defendant did not make any payment and finally the plaintif issued notice dated 22.12.2016 demanding the defendant to pay the arrears of rent along with interest. The defendant received the said notice on 23.12.2016, but did not pay any amount and he kept quite without giving any reply. Hence, the suit.

3

3.The defendant filed his written statement by resisting the material averments made in the plaint and submitted that the defendant was a tenant in the plaint schedule property. At the time of vacating schedule property there are no arrears of monthly rents to the plaintif. The defendant never executed the alleged Oppudala

Patram dated 29.02.2016 in favour of the plaintif. The plaintif bore grudge against the defendant for vacating the plaint schedule property. The alleged Oppudala Patram is forged and fabricated by the plaintif. The defendant has no need to execute the alleged document in favour of the plaintif. Subsequent to the receipt of the legal demand notice dated 22.12.2016, the defendant personally contacted the plaintif and he stated that he got issued legal notice

dated 22.12.2016 by mistake and requested him not to give any

reply notice for the said legal notice and as such, the defendant did not issue reply believing the promise of the plaintif. The plaintif is not entitled to seek any relief and prayed the court to dismiss the suit with compensatory costs.

4. Basing on the pleadings, the follow issues are settled for trial:

1. Whether the plaintiff is entitled for recovery of arrears due from the defendant for suit amount of Rs.2,58,670/- as prayed?

2. Whether the plaintiff is entitled for subsequent interest of 24% p.a., and costs since the transaction is commercial in nature?

3. Whether the “Opudala Patram” in favour of plaintiff is a fabricated document as alleged by defendant?

4. To what relief ?

5.At the event of trial, the plaintif is examined as PW.1 and he also examined P.V.S.Subramanyam and A.Roop Kumar as PW.2 and 4 PW.3 and exhibits A1 to A3 are marked. The defendant is examined as DW.1 and no documents are marked.

6. Learned counsel for the plaintif argued that the defendant failed in payment of arrears of rent and he also executed Ex.A1 “Oppudala patram” in favour of the plaintif and in spite of notice issued by the plaintif, the defendant did not turn up to pay the arrears of rent though he has vacated the plaint schedule property and sought the court to decree the suit in favour of the plaintif. Per contra, the learned counsel for the defendant argued that the said “Oppudala Patram” is rank forgery and it is fabricated by the plaintif for the purpose of filing of this suit and prayed the court to dismiss the suit with costs.

7. Heard both sides. Perused the material on record.

ISSUE No.3:-

8.It is not in dispute that the plaintif is the absolute owner of the plaint schedule property. The defendant was a tenant of the plaint schedule property and he conducted manufacturing furniture and computer tables business in the plaint schedule property and the rent was Rs.24,000/- per month. It is also an admitted fact that the defendant vacated the tenanted premises on 17.03.2016 as the property was met with fire accident. As per the plaintif, the defendant executed Ex.A1 “Oppudala Patram” in his favour acknowledging the liability of the defendant towards the rent due by him. But, the defendant is contending that the said “Oppudala

Patram” under Ex.A1 is rank forgery and it was fabricated for the purpose of filing of this suit by the plaintif. In respect of this issue 5 the burden is on the defendant to prove that the said “Oppudala

Patram” under Ex.A1 executed in favour of the plaintif is a fabricated document. My learned predecessor marked Ex.A1 subject to payment of stamp duty and penalty. On perusal of Ex.A1, it was executed on Rs.100/- non judicial stamp and there is no need to collect any definite stamp duty and penalty on the said document.

Ex.A1 is sufficiently stamped and moreover, the defendant also did not raise any objection with regard to the stamp duty and penalty and hence, it can be said that Ex.A1 is sufficiently stamped.

9.To substantiate the contentions of the defendant, he himself is examined as DW.1 and he filed his chief affidavit by reiterating the contents of the written statement. According to DW.1, Ex.A1 is a rank forgery and it was fabricated for the purpose of this suit. But, surprisingly in cross examination when Ex.A1 is confronted to DW.1, he admitted his signatures on Ex.A1. Therefore, this court find no merits in the contention of the defendant that Ex.A1 is a rank forgery. Ex.A1 non judicial stamp was purchased in the name of defendant and the defendant also admitted his signatures on Ex.A1.

Then it is for the defendant to explain under what circumstances, he subscribed his signatures on non judicial stamp paper and how it came into the hands of the plaintif. It is not the stand taken by the defendant that he handed over blank signed stamp papers to the plaintif. The defendant has not adduced any reason under what circumstances he handed over the stamp papers containing his signatures to the plaintif. It was suggested to PW.1 that he has paid 10 months advance to the plaintif and when he demanded to return the advance amount at the time of vacating the schedule premises, 6 the plaintif filed the suit by fabricating Ex.A1. No where in the written statement it is averred that he has paid 10 months advance i.e., Rs.2,40,000/- to the plaintif and at the time of vacation of the schedule premises he demanded to return the advance amount and as such the plaintif filed false suit against him. The defendant has to stick on to his defences in the written statement and he cannot deviate from the case by introducing new defence. According to

PW.1, PW.2 and 3 were also present at the time of execution of Ex.A1 by the defendant in favour of the plaintif. PW.2 and 3 did not sign as attesters in Ex.A1. One D.V.N.Lakshmi Narayana is the attester of the Ex.A1 and he is the clerk of the defendant. Except the oral evidence of PW.2 and 3 there is no material evidence on record to show that PW.2 and 3 were present at the time of execution of Ex.A1 and therefore, it can be said that the presence of PW.2 and 3 at the time of Ex.A1 is doubtful. However, the defendant have admitted his signatures on Ex.A1 and he also did not put forth any evidence

before the court to substantiate that Ex.A1 was fabricated by the

plaintif. PW.1 issued Ex.A2 notice to the defendant calling upon him to pay the arrears of rent as per Ex.A1 and the same was received by the defendant under Ex.A3 acknowledgment, but he did not pay any amount. According to DW.1, after receipt of the notice he approached the plaintif and questioned him about the notice and at that time the plaintif stated to him that by mistake it was issued and requested him not to issue any reply for the said notice. After receipt of the notice under Ex.A2 it is for the defendant to issue reply, but he has not issued any reply for Ex.A2 notice and he has 7 taken a vague plea that the plaintif advised him not to issue any reply which is not at all believable.

10.Learned counsel for the plaintif relied on the decision reported in 1997(1) ALD 246 between M.Narasimhulu Vs.

M.Laxmamma wherein it is held that “The defendant who received such notice issued to him prior to the filing of the suit, did not even choose to send a reply denying the borrowing and the execution of the promissory note. This circumstance goes a long way in showing that the suit debt is true and that the defendant has chosen to come up with a belated and false theory both with regard to the borrowing of the amount as well as the execution of the promissory note.” In the instant case also the defendant did not choose to issue any reply to Ex.A2 notice denying the claim of the plaintif. The aforesaid decision is quite applicable to the case on hand.

Learned counsel for the plaintif submitted that the defendant had not disputing the amount which is liable to be paid by the defendant and he even did not disputed the same in cross examination and relied on 2007(1) ALT 511 between Mohd.

Ibrahim and others Vs.Smt.Munni @ Zainab Bee wherein it is held that “ when a fact stated in the chief examination is not disputed in the cross examination, it should be deemed to be admitted.”

11.On perusal of cross examination of PW.1, it was not suggested to PW.1 with regard to the amount liable to be paid to

PW.1. Therefore by considering the above said decision, it can be said that the defendant is not disputing the arrears of rent as stated in the chief examination of PW.1. The defendant did not put forth 8 any cogent evidence before the court to show that Ex.A1 “Oppudala

Patram” is forged and fabricated document. On the other hand, the plaintif by examining himself as PW.1 and by marking Ex.A1 categorically proved that Ex.A1 is a valid document and it was executed by the defendant in his favour acknowledging his liability towards rents due to the plaintif. Accordingly, this issue is answered infavour of the plaintif and against the defendant.

ISSUE Nos: 1 and 2:-

12. The plaintif is contending that the defendant is liable to pay subsequent interest at the rate of 24% p.a. But, the plaintif did not adduce any evidence that how is entitled the subsequent interest @ 24% p.a., Therefore, in view of the facts and circumstances of the case and my findings in issue no.1, it can be said that the plaintif is entitled for recovery of arrears due from the defendant; subsequent interest @ 6% p.a., and costs. Hence, these issues are answered in favour of the plaintif and against the defendant.

ISSUE NO.4:-

13. In the result, the suit is decreed with costs against the defendant for a sum of Rs.2,58,670/- with subsequent interest at the rate of 6% P.A., thereon from the date of suit till the date of realization.

Dictated to the Personal Assistant, transcribed by her,

corrected and pronounced by me in open Court, this the 01st day of February, 2018.

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC/I ADDITIONAL JUNIOR CIVIL JUDGE,

VIJAYAWADA.

9

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF DEFENDANT

P.W-1: Arja Giridhar Rao. D.W.1: Garlapati Naga Venkata P.W.2: P.V.S.Subramanyam Srinivasa Rao. P.W.3: A.Roop Kumar.

DOCUMENTS MARKED FOR

PLAINTIFF

Ex.A1 : Memorandum of understanding executed by the defendant in favour of plaintif, dated 29.02.2016. Ex.A2: Office copy of the legal notice got issued on behalf of the plaintif to the defendant along with postal receipts, dated 22.12.2016. Ex.A3: Postal acknowledgment from defendant for Ex.A2, dated 23.12.2016.

DEFENDANT

-Nil-

P.J.C.J., VJA.

FAC/I AJCJ/VJA.

1

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE,

VIJAYAWADA.

Present: Smt.M.KUMUDINI,

Principal Junior Civil Judge,

FAC/I Additional Junior Civil Judge, Vijayawada.

Monday, the 08th day of January, 2018.

ORIGINAL SUIT NO.228/2017

Between:

Buragayala Srinivasa Rao, S/o.Satyanarayana, Hindu, aged about 48 years, Business, Resident of D.No.41-1/11-6, 2nd Lane, Nehru Nagar, Vijayawada. :: Plaintif A N D

Akshinthala Suresh Kumar, S/o.Subrahmanyam, Aged about 40 years, Business, Resident of D.No.61-7/3-4/4, 2nd lane, Radha Nagar, Krishna Lanka, Vijayawada. ::Defendant

This suit is coming before me on 12.12.2017 for hearing in the presence of Sri G.V.Subba Rao, Advocate for plaintif and of Sri K.Anantha Babu, Advocate for defendant and upon hearing and perusing the material papers on record and having stood over for consideration till this day this Court delivered the following:-

J U D G M E N T

1. This is a suit filed by the Plaintif against the defendant for recovery of an amount of Rs.1,41,700/- being the principal and interest due on promissory note, dt.10.06.2015 executed by the defendant in favour of the Plaintif for Rs.1,00,000/-, agreeing to repay the same with interest at the rate of 24% P.A., with subsequent interest and for costs of the suit.

2.The brief averments of the plaint are as follows:-

The defendant borrowed an amount of Rs.1,00,000/- from the plaintif on 10.06.2015 at Vijayawada for his business expenses and on the same day, he executed a promissory note in favour of the plaintif agreeing to repay the same with interest at the rate of 24% p.a. either to him or his order on demand. Despite repeated 2 demands and requests made by the plaintif, the defendant postponed the same on one pretext or the other. On 04.02.2017 the defendant got issued legal notice through his advocate and the defendant received the same and failed to pay the due amount under the suit promissory note. Hence, the suit.

3.The defendant filed written statement by denying the averments of the plaint. The brief averments of the written statement are as follows:-

The defendant is a physically challenged person and he is a vegetable vendor in PWD Grounds, Raithu Bazar. Originally the plaintif runs private chits and the defendant joined as subscriber in the chit run by the plaintif for an amount of Rs.10,000/- in the month of January, 2014 payable @Rs.500/- per month in 24 months and the defendant became the successful bidder in the 12th installment in that chit transaction. At the time of making payment of the bid amount to the defendant, the plaintif demanded the defendant to give blank signed promissory note towards security for the balance of the chit installments. At that time the defendant handed over one blank signed promissory note to the plaintif towards security for the balance installments. Subsequently, the defendant paid entire chit installments and the chit transaction was closed by the end of the August, 2015. But, the plaintif not returned the blank signed promissory note of the defendant, by representing that the said promissory note was mixed up with other documents and promised to return as and when it is traced. But, he did not return the same and taking advantage of the said blank signed promissory note he filed this suit with false and baseless allegations against the defendant. The defendant never borrowed any amount 3 from the plaintif and never executed any promissory note as alleged in the plaint and hence, prayed the court to dismiss the suit with exemplary costs.

4. Basing on the above pleadings, the following issues have been framed by my Learned predecessor for trial:

1) Whether the suit promissory note is true, valid and binding on the defendant?

2) Whether the plaintiff is entitled for a decree against the defendant for Rs.1,41,700/- with costs and future interest @24% p.a. from the date of filing of the suit till realization as prayed?

3) To what relief?

5.At the event of trial, the plaintif himself is examined as PW.1 and one Gajula Durga Rao, and Shaik Subhani were examined as

Pws.2 and 3. Exs.A1 to A4 are marked. The defendant is examined as DW.1 and no documents are marked on his behalf.

6. Learned counsel for the plaintif filed memo of written arguments and also contended that in spite of his repeated demands made by the plaintif, the defendant did not pay the amount under

Ex.A1 suit promissory note and sought the court to decree the suit.

Per contra, the learned counsel for the defendant argued that Ex.A1 promissory note was obtained towards security for the balance chit installments and basing on the same the plaintif filed the present suit for wrongful gain and prayed the court to dismiss the suit with costs.

7. Heard both sides. Perused the material on record.

ISSUES Nos: 1 and 2:

8. In a suit for recovery of money basing on the suit promissory note, the burden mainly lies on the plaintif to prove that the suit 4 promissory note is true, valid and supported by consideration. To substantiate the same, the plaintif himself is examined as Pw.1 and he also examined the attesters of Ex.A1 promissory note as Pw.s:2 and 3. The plaintif filed his chief affidavit by reiterating the contents of the plaint. According to PW.1, the defendant borrowed an amount of Rs.1,00,000/- on 10.06.2015 from him at Vijayawada for the purpose of his business expenses and executed Ex.A1 promissory note on the even date undertaking to repay the same along with interest at the rate of 24% p.a either to him or his order on demand.

In spite of his repeated demands, the defendant did not choose to pay the debt due under Ex.A1 and on that 04.02.2017 PW.1 got issued legal notice as under Ex.A2 demanding him to pay the debt due under the promissory note. Ex.A3 is the postal receipt for Ex.A2.

The defendant acknowledged the notice under Ex.A4 but he did not pay any amount or issue any reply. Pws. 2 and 3 are the attesters of

Ex.A1. They also deposed in similar lines corroborating Pw.1 about execution of Ex.A1 by the defendant in favour of PW.1. According to them, the defendant signed on Ex.A1 promissory note in their presence after receipt of consideration amount and they both attested Ex.A1. They further stated that they do not know the name of the scribe and the scribe came to house of the plaintif along with the defendant.

9.PW.1 categorically stated in his evidence that the amount under suit promissory note lent by him was obtained from Gandhi

Co-operative Bank on 07.02.2015 by mortgaging the building in the name of his wife and he gave the said amount after 4 or 5 days to the defendant at his residence in Nehru Nagar, Krishna Lanka,

Vijayawada and at the time of the transaction Pws.2 and 3, who are 5 his tenants were present and the defendant brought one person and he do not know the said person. He further stated that the transaction took place at 11.00 A.M and the suit promissory note was scribed by the person brought by the defendant. Pws.2 and 3 denied the suggestion that the transaction has not taken place in their presence.

10.According to the defendant, who is examined as Dw.1, the plaintif is running private chits and he joined as one of the subscriber of the chit run by the plaintif for an amount of

Rs.10,000/- in the month of January, 2014 payable @ Rs.500/- per month in 24 months and the defendant became the successful bidder in the 12th installment in that chit transaction. At the time of making payment of the bid amount to the defendant, the plaintif demanded the defendant to give blank signed promissory note towards security for the balance chit installments and he handed over the same towards security and subsequently he paid the entire installments due and the chit transaction was closed by the end of month of August, 2015, but the plaintif did not return the blank signed promissory note by representing that it was mixed up with other documents and promised that he will return it whenever he traced the same. In cross examination, DW.1 admitted that there is no documents to show that the plaintif is running the private chits and there is no document to show that he subscribed the chit with the plaintif and paid Rs.500/- per month for Rs.10,000/- chit for 24 months. He also categorically stated that there are no disputes between himself and the plaintif. It is obvious to note here that except taking vague contention there is no evidence brought on record to show that the plaintif is running private chits and the 6 defendant joined as one of the subscriber in the chit run by the plaintif for an amount of Rs.10,000/- payable at the rate of Rs.500/- per month in 24 monthly installments and the plaintif obtained blank promissory note towards security purpose. Moreover, the defendant himself admitted that there are no disputes between himself and the plaintif and in such a case there is no necessity for the plaintif to file false case by creating promissory note. It is pertinent to note here that the plaintif even did not issue any notice to the plaintif to return the promissory note prior to the notice issued by the plaintif and he even did not issue any reply to Ex.A2 notice which was issued by the plaintif. Therefore, by examining

Pws.1 to 3 and by marking Ex.A1 to A4 the plaintif categorically proved that the defendant executed Ex.A1 in favour of the plaintif and subsequently he did not pay the same. Accordingly, the plaintif has discharged his burden but the defendant failed to discharge his onus by proving that he issued blank signed promissory note to the plaintif towards security for balance installments. Hence, it can be said that the plaintif have discharged his burden and accordingly it can be concluded that the suit promissory note is true, valid and supported by consideration and the plaintif is entitled for the suit claim. Hence, these issues are answered in favour of the plaintif and against the defendant.

ISSUE No.3:

11. In the result, the suit is decreed with costs for a sum of

Rs.1,41,700/- with subsequent interest at the rate of 6% P.A., from the date of suit till the date of realization on principal sum of

Rs.1,00,000/-.

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Dictated to the Stenographer of this court and transcribed by

her, corrected and pronounced by me in the open court on this the 08thday of January,2018.

Principal Junior Civil Judge,

FAC/I Additional Junior Civil Judge,

VIJAYAWADA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF DEFENDANT

P.W.1: Buragayala Srinivasa Rao. Dw.1 : Akshinthala Suresh Kumar. PW.2 : Gajula Durga Rao. PW.3: Shaik Subhani.

DOCUMENTS MARKED FOR

PLAINTIFF:

Ex.A1 : Original Suit promissory note, dt.10.06.2015 Ex.A2: Office copy of legal notice dt.04.02.2017 Ex.A3 : Postal receipt for Ex.A2 dated 04.02.2017. Ex.A4 : Postal acknowledgment by the defendant for Ex.A2.

DEFENDANT: - Nil-

P.J.C.J., VJA.

FAC/IAJCJ/VJA.

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